1826.

BERRY

ย.

ADAMSON.

Scarlett.Your Lordship is not called upon to decide whether a man can maintain an action without being arrested.

ABBOTT, C. J.-I have no doubt that a man might recover in an action, if he were held to bail maliciously, and gave bail to prevent being arrested, if the declaration were properly framed.

Brougham.- In the case cited, the party went voluntarily before the magistrate.

ABBOTT, C. J.-In consequence of the warrant which was in the hands of the constable. That is a stronger case than the present, as the officer's man, who went with the message in this case, had no warrant. Suppose there had been no writ, or the writ had been set aside, could the plaintiff have maintained an action for false imprisonment? There is a great difference in the gravamen, whether you arrest a man, or tell an officer to send to him to come and sign a bail bond, and not put him to inconvenience. I think the plaintiff must be called.

Nonsuit.

Brougham, Chitty, and Abraham, for the plaintiff.

Scarlett, Campbell, and D. F. Jones, for the defendant. [Attornies-T. W. Robinson, and Adamson.]

IN the ensuing Term, Brougham moved to set aside the nonsuit on two grounds: First, That there was a sufficient arrest to support that allegation in the declaration; and secondly, That if there was not, the averment was divisible, and it was sufficient to prove a wrongful holding to bail.

The Court refused the rule on the second ground, being of opinion that the allegation was not divisible; but granted a rule to shew cause on the first point: but that rule was,

after argument, discharged, the Court being of opinion that there was no sufficient arrest to support the allegation.

See the case of Russen v. Lucas and Another, ante, Vol. 1, p. 153, and the note to that case.

In the case of Williams v. Jones, Ca. temp. Hard. 301, Lord Hardwicke says, that it does not follow that an arrest cannot be made without touching the person; for if a bailiff comes into a room and tells the defendant he arrests him, and locks the door, that is an ar

rest; for he is in custody of the
officer.

In the case of Blatch v. Archer,
Cowp. 65, Lord Mansfield lays
down, that an arrest must be by
the authority of the bailiff, but he
need not be the hand that arrests;
nor need he be in the presence, nor
actually in sight, nor within any
precise distance of the person ar-
rested.

1826.

BERRY

v.

ADAMSON.

MAINWARING v. LESLIE.

ASSUMPSIT for goods sold and delivered.

The plaintiff was a linen draper, and the demand was for articles bought by the defendant's wife at the shop of the plaintiff. It appeared that the wife at the time was not living with the husband, but residing in lodgings in Panton Street, in the Haymarket; and the woman, at whose house she lodged, proved that several times, both before and after the delivery of the goods in question, she and the witness went together to the defendant's house, where the wife saw him, and staid there sometimes as long as half an hour.

Scarlett, for the defendant, submitted that the plaintiff must be nonsuited upon this evidence.

ABBOTT, C. J., assented.

Brougham for the plaintiff. Is it not for them to shew that the wife was improperly absent from her husband's house? She is proved to have gone there several times, both before and after the purchase of these goods.

Dec. 20th.

If a trades nu bring an action against a hus

band for goods

furnished to his

wife, while she was living apart

from her hus

band, it is for him, the trades

man, to shew

that her so liv

ing proceeded

from some cause

which would

justify it.

1826.

v.

LESLIE.

ABBOTT, C. J.-It does not appear for what purpose she

MAINWARING went on the occasions mentioned. If you furnish goods to a married woman, when she is not living with her husband, it is for you to shew, that she was absent from some cause which would justify her absence. She might, for aught we can tell, have gone away of her own accord.

Brougham then called back the witness who had proved the occasional visits; and she said, upon further examination, that the wife once, during the time in which the goods were furnished, left her lodgings at the witness's house, and resided for some time at the house of her husband, but afterwards returned again to the house of the witness.

ABBOTT, C. J.-Upon this evidence I think it stands worse for you than it did before.

Brougham.-I submit that this evidence shews, that the public would be justified in concluding that she was living apart from her husband with his consent.

ABBOTT, C. J.-I think it is perfectly clear that she was living apart from her husband against his consent, and therefore that the plaintiff is not entitled to recover. If a contrary doctrine were to be holden, many a man might be ruined.

Brougham and Erle for the plaintiff.

Scarlett, for the defendant.

[Attornies-J. Vickery, and Richardson & T.]

Nonsuit.

1826.

HOLLIDAY V. MANN and Another.

him,

Cant

a

TROVER for flour.—The plaintiff claimed under a per-
son named Cant, who had parted with the flour to
partly in discharge of a debt and partly for cash.
was in possession of the bill of lading, which he indorsed
to the plaintiff. The defendants were wharfingers to
miller named Branford, of whom Cant had purchased; and
the defence was, that Cant had promised to pay for the
flour by a Bank Post Bill, but instead of so doing, when
he found that it had been shipped, sent only his own pro-
missory note; and that the plaintiff had purchased of Cant
under circumstances which evinced a knowledge of his
(Cant's) inability to pay. In addition to evidence of the
plaintiff's having said that it was of no use to bring an ac-
tion against Cant for non-performance of his contract, be-
cause he was not worth two-pence, a witness was called to
shew the insolvent state of Cant's circumstances.

ABBOTT, C. J., inquired if the facts which the witness was about to prove, could be brought home to the knowledge of the plaintiff. And upon being answered in the negative, his Lordship held that the evidence was not admissible.

Verdict for the defendants.

Campbell and Abraham, for the plaintiff.

Gurney and C. H. Sheppard, for the defendants. [Attornies-Harmer, and Mann.]

1826.

Dec. 21st.

engaged at a sa

lary of 1007. a

HUTTMAN v. BOULNOIS, the Younger.

If a clerk be ASSUMPSIT for wages as a clerk. There was no evidence of any hiring, but proof was given of a service by the plaintiff for seven months, and also that his salary was to be 1007. a-year. Payments had been made him up to the month of November, 1825. He quitted in January, and then leave 1826, and sent a letter to the defendant, in the following

year, and have ing received his wages up to a certain time,

serve for some time longer,

the service be

fore the year expires, without due cause, and without any notice; whether he is entitled to recover wages up

terms:

"Mr. W. Boulnois, Junr.

"January 3d, 1826.

"Sir,-I sincerely regret being compelled to absent my"self from your office, and to resign my present situation. "The abruptness with which I do this will, I am aware, quitting, Quære: be deemed unpardonable, but I have no other course to "take, so many things stare me in the face which are un

to the time of his

at all events, he

is liable to a

cross action for leaving the ser

vice without notice.

"done, and so many difficulties do I anticipate, which I

66

am quite unable to accomplish, that I am in some measure "bewildered by the thoughts of them, and unable to per"form those duties which require immediate attention. "Another cause is of a more personal nature, and relates "to the manner of correction, for which I have the greatest dread, &c. &c.

The letter concluded with a statement of the petty cash account, but contained no demand for wages.

Between the day when the plaintiff left, and the 22d March, various applications were made both by himself and his friends, for the payment of his salary, which the defendant uniformly refused to attend to. On the 22d of March, the plaintiff wrote to the defendant, threatening to make known some circumstances connected with his commercial transactions, which would make the defendant regret that he had ever deprived him of his salary. The defendant was stated to be a person of a very violent temper. The sum claimed was 157., being from the 9th November, 1825, to the 2d January, 1826.