was obtained, it was stated that the father, who was an emigrant, was about to remove it out of the kingdom. The mother had a considerable fortune, which was settled upon herself, and in consequence of some family disputes the father had taken the child by force from the nurse and carried it away in a chariot, half undressed, in a cold night. In order to get access to the child, he had broken into the nurse's room armed with a pistol. TOPPING, in shewing cause, cited a case before Lord Mansfield, MS. Rex v. Lytton, in 1775. That was a habeas corpus to bring up the body of the daughter of Mr. Lytton, at the application of the mother, she being taken away from school by the father. The parties were separated by agreement, which was afterwards made a rule of court. The first application was to Lord Mansfield, at Guildhall; but the parties afterwards came before this court in 1781. If it had not been made a rule of court, the court said they could have no jurisdiction; and on a subsequent day, it was said that the court could not at any age take the child from the father; but the father having bound himself by articles to let the mother have access to the child, it was ordered that if the father chose to take her home, the access by the mother must be provided for. He then stated that there was nothing in the affidavits filed, on the part of the mother, to shew that it was the intention of the father, in the present case, to Lake the child out of the country, although that had been stated as a ground for the habeas corpus, when it was first moved for. ERSKINE, GARROW, and GIBBS, being called upon to shew some ground for the application to take the child from the father, observed, that in Lytton's case, the parties were all British subjects, and the child was at school. That Mr. De Manneville was an alien enemy, and might be removed out of the kingdom by the authority of government, under the alien act. 1804. REX versus DE MANNE VILLE. Lord ELLENBOROUGH, C. J. "It does not appear that there is any reasonable ground to apprehend that he is going to take her out of the country. If you can shew that he is about to remove one of his majesty's subjects into the dominions of a foreign enemy that will raise an important question. Or, if the parties give us by their consent, a voluntary jurisdiction, that is quite a different thing. If the liberty of a British subject was in danger, then we might interfere. GARROW. "We can shew an intention of taking her out of the kingdom only from circumstantial evidence. There are passages in the affidavits, shewing that he threatened to take the mother to France, but not any directly as to the child." Lord ELLENBOROUGH, C. J. "That is only evidence of sævitia against the wife, which may lay a foundation for an application to another court. The utmost ground now laid before us is, that because he hates the mother he will hate the child. If there was any thing stated that the child is in danger of being ill treated, we might grant the custody to some other person; but, otherwise, the father is entitled to the custody of his child. LAWRENCE, J. then referred to the case of Sir William Murray, where the child was five years old, and Lord Kenyon said that the father was entitled to the legal custody of the child. THE CHILD WAS REMANDED TO THE CUSTODY OF THE FATHER, APPLETON versus BINKS.-May 8th. In articles of agreement under seal by B. describing him as agent for R., B. covenants for himself, &c. that R. shall accept conveyances, and pay the purchase-money thereon: this is a personal covenant by B., notwithstanding he is named as agent, and covenants in the deed, on the part and behalf of R. Obiter. The party who demurs, should not only state his points, intended to be argued, in the margin of the paper books which he delivers, but should also leave a copy of them with the two other Judges. 1804. versus BINKS. DECLARATION in covenant, on articles of agree- APPLETON ment, between the plaintiff and the defendant, by the name and description of T. Binks, of &c. for and on the behalf of the Right Honourable Lord Viscount Rokeby, whereby, in consideration of 60001. paid by Lord R., the plaintiff covenanted, on or before a certain day, to convey certain premises in Yorkshire to Lord R. in fee. In consideration whereof, the defendant, for himself, his heirs, executors, and administrators, did thereby covenant with the plaintiff, that Lord V. R. his heirs or assigns, should pay to the plaintiff 60001. at the time of sealing and delivering the conveyances, &c. The plaintiff then assigned a breach, that Lord Rokeby had refused to pay, &c. whereof the defendant had notice.General demurrer and joinder. W. JACKSON for the defendant, stated two points to be argued; 1st, that the deed could not be made by the defendant as an agent; 2dly, that as he covenanted not for himself but for and on the behalf of another person, no action would lie to charge him personally.* The court in this case complained, as in some others, that the points to be argued were omitted to be stated in some of the VOL. III. N° 19. 3 A paper 1804'. APPLETON versus BINKS. Lord ELLENBOROUGH, C. J. "Do you mean to say that if a person covenant for himself, his heirs, executors, administrators, and assigns, for another person, he does not bind himself? A man may covenant that another shall go to Rome." Finding that the court thought this in terms a personal covenant, that another person should do a certain act, the counsel declined arguing, and there was JUDGMENT FOR THE PLAINTIFF, NADEN versus PATEN. NADEN versus PATEN and Another.-May 7. If two or more defendants are charged in execution on a joint judgment, the discharge of one of them under the lord's act, not opposed by the plaintiff, is no ground for an application to discharge the other." LITTLEDALE moved to discharge one of the defen dants out of custody upon a judgment against them jointly. Both the defendants had applied to be discharged under the lord's act; the plaintiff permitted one to be discharged, and opposed the other at the last Lancaster assizes. He cited Clarke v. Clements.* He observed, however, that in that case the plaintiff had himself voluntarily assented to the discharge of the one defendant while the present discharge was under the lord's act by opera paper books. In the demurrer books, made up by the defendant, they were stated; and, LAWRENCE, J. observed that the party who objects to the pleadings and makes the points, should leave a copy of them with the two other Judges, to whom he does not deliver paper books. 6 Term Rep. 525. tion of law. But as the plaintiff let one out of prison and took an assignment of his effects, he said it was a virtual assent. THE COURT, on the distinction suggested by LITTLEDALE, REFUSED TO GRANT A RULE NISI. 1804. NADEN versus PATEN. DOE on the Demise of JANE SHEWEN (Widow) versus On a conditional surrender of copyhold lands, by way of mortgage, the legal estate remains in the mortgagor until the admission of the mortgagee, and will not pass by the will of the mortgagor, or his heirs, without surrender to the use of the will. · EJECTMENT for a moiety of copyhold tenements, &c. DOE dem. versus in Sutton St. Mary, Sutton St. Nicholas, and Sutton St. James, in the manor of Sutton Holland and Gedney, WROOTS. in the manor of Gedney Pawlett, in the county of Lincoln, tried at the Lent assizes, 1803, and a verdict for the plaintiff, and the following case reserved: At a general court baron holden for the manor of Sutton Holland, on the 22d of May, 1766, Anthony Jones, esq. was admitted as only brother and heir at law of Richard Jones, esq. deceased, tenant to five messuages and an hundred and one acres, three roods, nine perches of land, lying in the three Suttons, holden of the said manor by copy of court-roll to hold to the said A. Jones, his heirs and assigns for ever, according to the custom of the said manor. At a special court baron holden for the said manor, on the 10th of February, 1767, A. Jones duly surrendered the said messuages and lands to the use of T. Alderson, esq. his heirs, and assigns, conditioned to be void on repayment of the principal mortgage sum of 10001. with |