1806. The KING versus the Inhabitants of LOUGHTON. LAWRENCE, J. who said that the affidavit must state in terms that the road is likely to continue in repair. RULE REFUSED. WARDELL V. VILLA REAL GOOCH. Practice, Feme Where a married woman ha a settlement by deed of separation, and Covert. she is trusted by a creditor, knowing her to be married and living separate from her husband, she may nevertheless be discharged upon filing common bail. VETSUS WARDELL RULE to shew cause why the defendant should not be discharged upon filing common bail, she being Стосн. a married woman. The defendant swore, that her husband was alive to the best of her knowledge and belief, or at least he was so on the 21st of April when the action was commenced, and the defendant was arrested. The plaintiff used to supply the defendant with wine and spirits, and was informed before, that she had a deed of separation, and a separate allowance in 1798 of 2501. a year, by quarterly payments, and that the plaintiff either went with her to receive it, or received it for her. SIR V. GIBBS shewed cause and contended that the defendant should be left to plead her coverture. Lord ELLENBOROUGH, C. J. "Your representation is that the parties have agreed to consider the case of Corbet v. Poelnitz as law. It used to be left to a defence upon the plea of coverture; but, now that rule is relaxed. The plaintiff dealt with her, knowing her to be a married woman, and thought that she would not take the objection." RULE ABSOLUTE. * 1 Tem. Rep. REX v. HOPKINS, Ex parte KNOTT. A woman having the possession of a child for some time, claiming it as her own, was dispossessed of it by artifice; the court granted a Habeas Corpus for the child, against the person who had so obtained possession of it. Habeus corpus The KINO versus GARROW moved for a habeas corpus to the defendant to bring up the body of a child, which Hopkinas Knott claimed to belong to her, alledging herself to be the mother of it. It appeared, upon the affidavits, that this was a dispute as to whom the child really belonged, and who was its mother. The affidavits stated the birth of the child, or rather some circumstances from which to infer, that the child was born of Mrs. Knott; and it was stated to have been in her possession; and that it was obtained from her by Hopkins, by means of artifice. The COURT at first, had some doubt as to whether they could entertain this motion, upon the application of the supposed mother, the father being the only person entitled to the custody of it; but after some consultation, Lord ELLEN BOROUGH, C. J. "In this case, it appears that the mother had her child in her care; that Mrs. Knott had the child, during the period of nurture in her care, and the possession was then undisturbed; that she was divested of it by an act of stratagem; that she repossessed herself of it again; then, presuming in favour of the party having the possession that she has the right, we think, that in the exercise of our authority to grant the writ, we may grant it to replace the child in the possession of Knott; leaving it to the court of chancery to settle, 4 E NO. XXXVII. N. S. 1806. afterwards, according to law, in whose possession it The KING ought to be. We think, the long possession of the child, authorizes us to grant the writ.*" versus HOPKINS. There was some doubt as to whether the rule should be absolute in the first instance, as it might be a question, who was the mother; and Hopkins might return that it was her legitimate child, and might claim the possession. It was at length settled that the rule should be absolute, in the first instance, and that any claim to the possession might be returned upon the habeas corpus. This was afterwards done in Michaelmas term 1806, and the child remanded into the possession of Hopkins. The circumstances of the case were very extraordinary, END OF VOL. II. AN INDEX то THE PRINCIPAL MATTERS. ACTION UPON THE CASÈ. ABANDONMENT. See INSURANCE, No. 1, See INSURANCE, No. 2. ABATEMENT. See PRACTICE, NO. 1. See PRACTICE, No. 13. ACTION UPON THE CASÉ. The sugar coopers claimed a right to go upon the West India docks, as they would have gone upon the old legal quays, to cooper sugars belonging to private merchants warehoused there; and brought case against the proprietors, for excludingthem from exercising theirtrade. Upon which a special verdict was found. Held, that no judgment could be given, pro defectu veredicti, in not stating precisely what legal right the plaintiffs had to go on the legal quays, in place of which, for certain purposes the docks were erected; it only stating that the plaintiffs were used to cooper sugars for shipment for exportation there, which might be by contract with the owners of such quays: and if to a certain or any extent, such right of going on the quays and the docks might arise ex neceffitate, no such necessity was stated in the verdict: it omitring to state what casks were there, requiring necessary cooperage to be done upon the whart. For it is clear the ducks are not to be used as the cooper's AGREEMENT. 1 See PRACTICE, No. 5. cal 2 Sugars were sold by auction, by a broker according to a certain catalogue, which did not contain the entire particulars or conditions of sale; the conditions or very material parts of them, were written on a separate paper and read by the broker at the sale, and laid by him on the desk with the catalogue ; the catalogue was entitled only "a catalogue of sugars, to be sold 20th September, for particulars apply, &c. ;" the conditions were entitled conditions of sugar sale, 20th September, but there were no direct words of reference to either in the one or the other, and they were not pinned together; at the time of the sale the broker's clerk wrote a memorandum of the name of the purchaser, (the defendant) against the article sold with the price; and samples of about half a pound each, were delivered, which were culated on the weight of the commodity: held that, although the broker must be considered as the agent of both parties, yet as the catalogue did not contain all the conditions of sale, and the conditions were chiefly on a separate paper, the memorandum was not a memorandum in writing, within the statute of frauds; but, by the delivery of the sample, the case was taken out of the statute, for, although a sample is a thing delivered alio intuitu, and not principally as a part performance of the contract, yet, where it is a part of the commodity and taken in the weight or measure, it may also operate to comply with the terms of the exception in the statute. Sales by auction of goods are not to be considered as excepted, by the equity of the statute of frauds. Hinde v. Whitehouse, T. 46 Geo. 3. AMOTION. See MANDAMUS, No. 2. ANNUITY. See PLEADING, No. 11. APPEAL. 528 AUCTION. ვნე 1 A. purchases, at a sale by auction, a lot described in the particulars of sale, as eleven houses, No. 1, 2, 3, &c. situate, &c. and it is stated that "the estate is held by lease of B. :" previous to the lease a small part of the |