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Wardell V. Villa Real Gooch.

Practice. Feme Wh.ere a married woman ha a settlement by deed of scparalitti, ui Coterr. the is trusted by a creditor,knowing her to be married and Stag

separate from her husband, the may nevertheless be diselureci

upon filing common bail.

Wmtottt j^ULE to shew cause why the defendant should not ^^jpu he discharged upon filing eommon bail, she being

sf married woman. The defendant swore, tliat 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 wan commenced, and the defendant was arrested. The plaintiff' used to supply the defendant with wine and spirits, and wns informed before, that she had a deed of separation, and a separate allowance in 17 of 2SOl. a year, by quarterly payments, and that die plaintiff either went with her to receive it, or received it for her.

Sir V. O'ibbs shewed cause and contended that the def endant should be left to plead her coverture.

Lord Ei.lenrorou<:h, 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 Ate would not take the objection."'

Rule Absolute.

* 1 Te\m. Hep.

Rex V. Hopkins, Ex parte Knott.

%jf woman having (he pottettion of a child for tome 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 to obtained pottettion of it.

fQj. ARROW moved for a habeas corpus to the defendant to bring up the body of a child, which Knott claimed to belong to her, nlledging 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 wbo 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 Mis. 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 as4o 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 Ellenborough, 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,

NO. XXXVII. N. 8. 4 E

1806. afterwards, according to law, in whose possession it ThoKiNt ought to be. We think, the long possession of the wnu child authorizes us to errant the writ.*"

{{owns. •* °

■ . i i i •>

• 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 b» 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 «r« Very extraordinary,

END 07 VOL. Ill,

AN

INDEX

TO

THE PRINCIPAL MATTERS.

ACTION UPON THE CASE.

ABANDONMENT.
Insuhanci, No. I,1
See Iksu R Anc E, No. I.

ABATEMENT.

H ft P«ACTICI, NO. }.

See Practice, No. 13.

ACTION UPON THE CASE.

The sugar coopers claimed a right to
jo 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
exctudingthemfrom exercising theirtrade.
Upon which a special rtrdict was
found. Held, that no judgment could
be given, fit defect* vertdicti, 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 stat-
ing that the plaintiffs were used to
cooper sugars for shipment for ex-
portation 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 neeeffitatf, no such
necessity was stated in the verdict: it
omitting to state what casks were there,
requiring.necessary cooperage to he rlcne
»pod tie wharf. For it is clear the
flecks are uot 10 be used as the %ooper's

AGENT.

workshops. Vide srat 39 C. TH. c
69; 42 G. III. c. 1:3. Bcnlley and
Antther v. Smiti, M. 46 Geo. 3. 17

ACTION FOR MONEY HAD
AND RECEIVED.

Pleadinc, No. 5, and tit As>
lumtrsiT.

ADMISSION.
See Ejectment, No. I.
See Com, No. 1.

AFFIDAVIT.
See Pkactici, No. Iz.

AFFIDAVIT TO HOLD TO BAIL.

See Practice, No. 3.
See Practice, No. 8.

AGENT*

1 \Vhere a sheriff's officer was writ-
ten to by the plaintiff's attorney to exe-
cute the process and receive the debt and
costs, and he did so, and paid the debc
to him but there was a dispute, between
him and the plaintiff s attorney, as to the
costs; held, the plaintiff's attorney
could not proceed upon the ba'il bond for
the cOits; the drSt and costs being paid
to his agent. Johh v. Burton, E. 4*
Gee. 3. ' 45S

Set B sNKRUrTCV.

AGREEMENT. 1 Set Practice, No. 5. a Sugars were told by auction, by a broker according to a certain Catalogue, which did not contain the entire particulart or condition! of sale; the conditions or very material parts sjf 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 loth September, for particulars apply, tec.;" the conditions were entitled conditions of sugar sale, loth 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 ar- . tide sold with the price; and samples of about half a pound each, were delivered, which were calculated 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 mesnorandum 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. tVbitebtute, T. 46 Geo. 3. 528

AMOTION.
Set Mandamus, No. a.

ANNUITY.
See Pwaoinc, No. 11.

APPEAL.

The statute 4 Geo. I. c. 7. s. S, is peremptory upon the justices to hear an appeal, and it cannot be dismissed on ■he ground, that, notice has not been given t* the respondents. The King v. .it Juiticti of Sfffordthirt, T. 46 G. •A »- 55S

APPRENTICE. S«practici, No. 11, Set Scttumiit, No. 5; Stt Settlement, No. z. See Settlement ij Arraix

TICISHir.

ARREST.
See Ac 1 It, No. 1.

ASSIGNEE.
See Bankrupt, No. J.

ASSIGNMENT FRAUDULENT.
See Banks.ufT, No. 8.

ASSUMPSIT.

1 A contract with as adrertiilog taylor for four suits a year, and to return the old suits, is not proveable under a count for goods sold; it is a special assumpsit.

Semite. It includes a contract for mending the suits. Rett r.Mantt"' M.i6G.s. H*

See Pleadinc, No. a.

See Bill (/exchange, No. 1.

* On a Quantum meriut for work and labour, the defendant may give evidence that the work was not done well; and need not be put to his cross action.

Alitir where the demand is upon an agreement for a stipulated sum, and the plaintiff" has no notice of the defcn«; because he may be ta ken by surprise: which cannot happen upon a jitntn meruit. Button v. Butter, T. 46 ft 3.

4M

5 S« Evidence, Not. II and is

ATTACHMENT. See Practice, No. t. See Award, No. 1; and Knight*Palmer, E 4ft Gro. 3. tf» See Practice, No.9.

ATTACHMENT, FOREIGN.

i«BAMH«FT, No. 6.

ATTORNEY.
See Evidence, No. 3.

AUCTION.

1 A. purchases, at a sale by auction a lot described in the particulars of sa<c,« as eleven houses. No. j, 2, '1 &c- *'* tuate, Sec. and it is stated that " lr,e estate-is held by lease of B.:" previous to the lease a small part of the

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