In a sci. fa. against a feme covert, to recover a forfeiture for not attending as a witness, her husband must be joined with her.
Sci. fa. against Margaret Wier, wife of Joseph Wier, to show cause why she should not pay the forfeiture for failing to attend as a witness upon subpœna.
Oyer of the sci. fa. Demurrer and joinder.
The demurrer contained three objections.
1st. The plaintiff was an infant, and should sue by prochein ami.
2d. The defendant, a feme covert, should have been joined with her husband.
3d. The amount of the forfeiture did not appear in the subpœna.
WILKINSON, in support of the demurrer, cited 1 Bac. Dub. ed. 1793, 294, 307, tit. Baron Feme; 4 Bac. 499, tit. sci: fa.
PARSONS, e contra, relied upon the case of the State v. Cross in this court. In that case there was a demurrer, and the Court decided they would not look out of the demurrer into the recognizance, to see if there was a variance. So in this the Court will not look out of the sci. fa., of which alone the defendant has craved oyer.
Per Curiam.
The case of the State v. Cross does not apply. That case was a sci. fa. upon a forfeited recognizance. The defendant, without craving oyer or setting forth any part of the record, demurred, and showed for cause a variance between the recognizance and sci. fa.; the Court determined, as the defendant did not crave oyer so as to point out the variance in his pleading, they were not authorized to look themselves for the variance, and upon that ground overruled the demurrer.
In the case before the Court oyer is craved, and the sci. fa. is set out in the demurrer, from which it appears that the defendant ought to have been joined with her husband, and for this cause the demurrer was sustained.