bargain, he is not. We are of opinion that such a quitting is not a "quitting" under the terms of the tenancy, but was in reality a running away from the land, which entitled the defendant, as its owner, to take possession of it in whatever state it might be, without making the tenant compensation for any improvements made by him on it. The ground of our judgment is this, that at the time when the plaintiff quitted the farm there was no bargain that he should be paid for the tillages, &c. which he had executed; and as the case does not, for the reasons stated, fall within the terms of the written agreement entered into when he entered, he cannot claim under it for the improvements he may have made. The nonsuit was right. Rule refused. 1832. WHITTAKER v. BARKER. FREAME against MITFORD. G. WILSON had obtained a rule to deliver up the A married bail bond to be cancelled on entering a common woman will be discharged appearance, on her affidavit that she was married to from arrest on and was the wife of J. M. Esq., and had never repre- bail, or the filing common sented herself to be otherwise, and was known to the bail bond will be delivered plaintiff to be a married woman when he arrested her. up to be cancelled, if her coverture is Whitmore showed cause. The plaintiff's affidavits show, that he and other tradesmen with whom the de fendant dealt believed her to be a widow, that she was not disputed, and she has used no deceit before or at the time of trusted as such by them, and would not have been so obtaining the trusted had her coverture been known. She ordered credit; nor will her subse goods at the plaintiff's shop at Worcester, in May quently giving 1830, and being then in company with her daughter, a a bill of exchange to the lady well known to the plaintiff to be resident at that plaintiff in place in a respectable station of life, the plaintiff made part payment vary the rule. 1832. FREAME v. MITFORD. no inquiries about her situation. On the plaintiff's subsequently applying for his bill of 577., the defendant could not pay, but on his importuning her to give a promissory note for 307. she offered by letter to give him her promissory note at two months for 301. in part payment, and afterwards accepted a bill for that amount drawn by the plaintiff. She had previously paid another debt in Worcester by giving the tradesman two bills with her name on them. It was also sworn that the plaintiff had been informed that the defendant had long lived separate from her husband. [Bayley B. What part of the affidavit shows that the plaintiff had no reason to suspect the defendant to be a married woman? Vaughan B. Did she do any act or make any declaration from which the plaintiff might conclude her to be a single woman?] The rule is distinct, that if the defendant practised any fraud in holding herself out as a single woman, this motion will not succeed; Partridge v. Clark (a). Now Prichard v. Cowlam (b), followed up in Jones v. Lewis (c), distinctly shows that the accepting and issuing a bill by a woman is such a representation by her that she is single, as to preclude the court from giving her summary relief as a married woman. [Bayley B. In this case the letter was written and the bill sent long subsequently to the period of incurring the debt. That period is important. In Collins v. Rowed (d), the court said, that a married woman's discharge as such was not now refused merely because her coverture was not notorious, and the plaintiff had trusted her as a feme sole. That if a woman deceives a plaintiff with respect to her condition by a falsehood, the court will not discharge her; but as in that case the defendant had not used any deceit by representing herself as a feme sole, she was entitled to be discharged. Here (a) 5 T. R. 194. (b) 2 Marsh. 40. (c) Id. 385; 7 Taunt. 55, S. C. (d) 1 New R. 54; and see Waters v. Smith, 6 T. R. 451. no inquiry was made as to the defendant's coverture.] In Collins v. Rowed the defendant had not given any bill. [Bayley B. Had you been deluded by seeing the defendant's acceptance, into believing her to be single, and giving her credit accordingly, the case might be different; but in this case the acceptance was given as a security for the old debt, and did not at all conduce to the giving the original credit. In Partridge v. Clark the defendant was clearly not entitled to be discharged, but the positive affidavit of the marriage is not here contradicted.] G. Wilson in support of the rule. The acceptance for 301. was obtained by the plaintiff's importunity; 157. of that sum having been paid, the defendant must have been arrested in part for the remaining amount due for the goods. Then Collins v. Rowed applies, for the defendant makes no misrepresentation, and the plaintiff no inquiry. BAYLEY B. (a)-It is very desirable in cases of this kind, that we should act on certain grounds, so that it may be clearly known what cases are and are not within the rule on the subject. In this instance there is a positive affidavit of the defendant's marriage, not brought into question by any affidavit on the part of the plaintiff. Then if such a marriage be proved to have taken place, the plaintiff would ultimately be defeated at the trial of the cause, on a plea of coverture. On that account, therefore, we ought not hastily to give that encouragement to proceed which would put the parties to the additional expenses of a trial, though by discharging this defendant we do not prevent the plaintiff from going on. I take one rule to be, that if the affidavits raise any degree of doubt whether the marriage exists or not, the courts will not interfere in this sum (a) Lord Lyndhurst was sitting in equity. 1832. FREAME บ. MITFORD. 1832. FREAME v. mary way. Another rule is, that such relief will be refused if the party making the arrest can show that the defendant, at the time of obtaining the credit, has MITFORD. in any respect affirmatively deceived him, by representing herself to be what she is really not. There was one case where the marriage was notorious, but the woman had stated herself to have an act of parliament for a divorce. In another the woman represented herself as having a separate property. In this case it does not appear that at the time the goods were obtained there was any representation that she was not a married woman; and there is no doubt of the fact of her marriage being still subsisting. Then though this may turn out hard on the plaintiff, he should, as a tradesman, have made some inquiry, if not of the defendant herself, at least of her daughter or her daughter's husband, or some other member of the family, whether she was in such a situation as would enable her to pay for those goods. It is true that a bill of exchange, accepted by the defendant, was afterwards given by her, that being an instrument which would not bind her as a married woman: and had the goods been originally furnished on the security of this bill to be given, I might have been of a different opinion; but the debt was here incurred antecedently to the giving the bill in question. That brings this case within Collins v. Rowed, which I cited from the New Reports, where, as here, there was nothing by which the plaintiff could have been deceived, except by the circumstances under which the defendant was living. The state of facts in that case corresponds exactly with those which occurred here at the time of contracting this debt. VAUGHAN B.-No doubt is here thrown on the coverture, nor does any direct misrepresentation appear to have taken place at the time of contracting the debt. Then it was the duty of the tradesman not to have given credit too lightly, or without instituting proper inquiries. BOLLAND and GURNEY Bs. concurred. Rule (not moved with costs) absolute 1832. FREAME Ο. MITFORD. HYDE against LATHAM and DRY. not admitted THE first action was in trespass, for entering the An attorney plaintiff's house and taking goods there; with who, though pleas of the general issue and special justifications of in the Excheentering the house. The plaintiff had a verdict on quer, conducts the general issue, the defendant on the justifications. The second action was assumpsit for a money demand, and the plaintiff had a verdict. Tomlinson had obtained a rule to set off the amount an action there in his own name, (notwithstanding 2 G.2.c.23. ss. 1, 5 & 10.) cannot reco ver his fees or costs out of pocket from his client, and has therefore of the damages and costs in the second action, against the amount of the damages, and the balance of costs in the first action, after first deducting the costs of no lien for the issues found for the defendant in that action, with- them upon a judgment reout allowing the costs of the plaintiff's attorney in that covered. Thus (the first) action. The affidavits showed that the action may be plaintiff's attorney had conducted the proceedings in set off against his own name, he not being an attorney of this court, and that Dry acted as bailiff of Latham, and was indemnified by him. the costs of one those of ano ther, without allowing him |