now complained of had been fanctioned by him at the time. On the other hand, it was denied that the plaintiff Gyfford, who was no party to the fheriff's return, which was in effect made on the fuggeftion of the then plaintiffs, (the Woodgates) ought to be affected by its Contents: and it was contended, that the execution having been irregularly made, it lay upon the defendants to fhew the fact of the now plaintiff's licence and confent to that irregularity, and not the mere dictum of the sheriff, made in his own juftification. Lord Ellenborough C. J. however, was of opinion that this was primâ facie evidence of the facts ftated in the return, upon the ground that faith was to be given to the official act of a public officer, like the sheriff, even where third persons were concerned. That if the sheriff returned a rescue, the court above, to which the return was made, would fo far give credence to it, that they would iffue an at→ tachment in the first instance (a): though upon an indictment for a rescue, it would be open to the defendant to shew that the return was fake. Objection was now again made, upon motion for a new trial, by Garrow and Curwood, to the admissibility of the evidence and the direction of the Lord Chief Justice; but his Lordship (and the rest of the Court concurred with him,) ftill thought that the sheriff's return was prima facie evidence of the facts therein ftated; and therefore the Court refused a rule. (a) Rex v. Elkins, 4 Burr. 2129. 1809. GYFFORD again WOODBATE 300 1809. Tuesday, June 6th. The ft. 17 G.3. THIS c. 42. which requires bricks for fale to be of certain dimenfions, and gives a penalty for the breach of that regulation, being paffed to protect the buyer againft the fraud of the feller; if bricks he fold and delivered under the ftatutable fize unknown to the buyer, the feller cannot lue of them. LAW again HODSON. 'HIS was an action of affumpfit to recover the value of a quantity of bricks which had been fold and delivered by the plaintiff to the defendant. An objection was taken at the trial that the bricks were made of lefs dimensions than is required by the ftat, 17 Geo 3.c. 42., which after reciting "that inconveniences had arifen to the public by frauds committed in leffening the fize of bricks under their ufual proportion, without any dimi« nution of price; for remedy thereof, and for the common good and benefit of the fubject," enacts, that all bricks made for fale fhall be, of certain dimensions therein recover the va- fpecified : and then gives a penalty, on conviction, of 205, per thousand for the breach of this regulation. It appeared in evidence, that the bricks in question had been feen by the plaintiff, and felected by him out of a larger quantity, fome of which: had been rejected by him for other defects, but no notice had been taken of the fize; and the bricks were afterwards received and ufed by the defendant. But Lord Ellenborough C. J. being of opi nion, that the making and felling of fuch bricks was a fraud upon the ftatute, nonfuited the plaintiff. : Garrow now moved to fet aside the nonfuit, on the ground that, however the breach of this law might have been a reason for the defendant's refcinding the contract, and returning the bricks when he discovered them to be under the ftatutable dimenfions, yet having accepted and actually converted them to his own ufe, the contract was executed, and the vendee was at all events liable to pay pay the actual value of the goods. That the legislature had not avoided the contract itself, but only subjected the brickmaker to a penalty, which was alfo limited to be fued for within a month. Lord ELLENBOROUGH C. J. This was a fraud upon the buyer, whom the legislature meant to protect. He credit to the maker at the time that the bricks were of the ftatutable fize, and they turned out to be all under that fize. gave GROSE J. The legislature has prohibited the general fale of bricks which are under fize. LE BLANE J. It did not appear that the defendant bought the bricks, knowing them to be under fize. BAYLEY J. The policy of the act was to protect the buyer (a) against the fraud of the feller, and this can only be done by holding that the latter fhall not recover the value of fuch bricks fo fold. 1809. LAW against HODSON Rule refufed. (a) Vide Jobufon v. Hudson, ante, 180. and note this diftin&ion. BOGGETT against FRIER and Another. TRESPASS for breaking and entering the dwellinghouse and shop of the plaintiff Sarah Boggett, on the 8th of April 1807, and expelling her therefrom, and Friday, A wife cannot, maintain trefpass for breaking and entering as a feme fole, her house and feizing goods in her poffeffion, by replying, in anfwer to a plea of coyerture, that her husband had 4 years before deferted her and gone beyond feas without leaving her any means of fupport, and that he had not fince returned nor been heard of by her; and that during all the time fhe had lived feparate from him, and had traded and contracted as a fole trader and fingle woman, and as fuch was lawfully poffeffed, &c.; the defendant rejoining that the husband was a natural-born fubject, &c. and had not abjured the realm, or been exiled, or banished, or religated therefrom. 1809 BOGGETT agains FRIER. taking her goods, &c. Plea, That the faid Sarah, at the time of the trefpafs committed, and from thence hitherto hath been and ftill is under coverture of one Jofeph Boggett, her husband, who is ftill alive, &c. Replication, That before the time of committing the trespass, to wit, on the 17th of February 1805, the said Jofeph deserted and left the said Sarah, and departed out of this kingdom to certain parts beyond the feas, to wit, to America, without leaving any means of neceffary provifion and support to the faid Sarah: and that from the time of his faid departure hitherto the faid Jofeph has not returned to this country, nor correfponded with, nor been heard of by the faid Sarak; and that during all that time the said Sarah hath lived in this kingdom fepa rate and apart from the faid Jofeph, and made contracts and obtained credit as a fingle woman, and for her neceffary fupport and maintenance hath during all that time carried on the trade and bufinefs of a merchant as a fingle woman and fole trader, and as fuch was lawfully poffeffed of the faid dwelling-house and shop in the declaration mentioned. Rejoinder, That the faid Jofeph was born within this realm, and from his birth hitherto hath been and still is a fubject of our lord the king, owing allegiance, &c.: And that the faid Joseph hath not at any time hitherto abjured this realm, or been exiled or banished or religated therefrom, &c. To this there was a general demurrer, which Roberts was to fupport: but he was asked in the firft inftance by the Court, whether he could diftinguish this cafe in principle from that of Marshall v. Rutten (a): on which he urged the departure of the husband in this (a) 8 Term Rep. 545 cafe cafe out of the realm, and confequently beyond the reach of process, under circumftances which evinced a permanent desertion of his wife and country. And he also referred to several cafes and authorities, which either bore against the doctrine of Marfball v. Rutton, or diftinguished this cafe from it; particularly that of de Gaillon v. l'Aigle (a); where the wife having traded and obtained credit in this country, as a feme fole, in the abfence of her husband, a foreigner, who refided abroad, was held liable to be sued for her own debts. But all these cafes, it was obferved by the Court, were antecedent to that of Marfball v. Rutton; and, fo far as they were oppofed to, were overruled by that decifion, which restored what was the old eftablished rule of law, founded generally upon the relation of husband and wife, by which, with certain known specific exceptions, no married woman was capable of contracting or acting as a feme fole, or of suing or being fued as fuch. And Lord Ellenborough C. J. referred to Marsh v. Hutchinson (b), which was under difcuffion at the fame time as Marshall v. Rutton, and was afterwards decided in conformity with that determination, as bearing ftrongly upon the prefent cafe. And the fame principle he said was acted upon in Chambers v. Donaldson (c). The only cafes mentioned by Roberts, as subsequent in time to thefe, were Carroll v. Blencow (d), and Farrer v. Granard (e). The firft was the cafe of a married woman, whofe husband had been tranfported for 7 years from March 1794, and during this time she had fold and delivered goods to the defendant, for which the action was (a) 1 Bof. & Pull. 357. where all the prior cafes are collected. 1809. BOGGETT against FRIED brought, |