*WILSON v. HOLLINGS. Jan. 21.

[*783

The Court set aside a judgment signed against a married woman (sued as a feme sole), but without costs, there being some doubt upon the affidavits whether she had not, when she contracted the debt with the plaintiff, held herself out as being unmarried.

FINLASON moved for a rale to set aside the judgment and all subsequent proceedings in this cause, with costs, on the ground that the defendant, to the knowledge of the plaintiff, was a married woman at the time of the issuing of the writ. A summons for the same purpose was heard before Byles, J., at Chambers, but he declined to make any order, referring the matter to the Court, with a stay of proceedings in the mean time. The affidavits upon which the motion was founded,those of the defendant herself and of two other persons,-alleged that she was the lawful wife of one Charles Hollings, who was living (in India), and that she had never represented herself at any time to be other than a married woman; and one of the deponents swore that he had informed the plaintiff's agent before the goods in respect of which the action was brought had been supplied, that she was a married woman, and possessed separate property derived under the will of her first husband. He submitted that it was irregular to issue a writ against a married woman,-citing Roberts v. Andrews, 2 W. Bl. 720, 3 Wils. 124, and Tidd's Practice, 9th edit. p. 194. [ERLE, C. J.-The attorney could not know by instinct whether the party were married or single.] The fact being so, the writ is irregular, whether the attorney knew it or not. Knowledge can only be material in respect of costs. [ERLE, C. J.-If the fact be that the defendant is a married woman, it is clear that she should have relief. I think the justice of the case will be answered if the proceedings are stayed without costs. If the defendant is a married woman, the plaintiff cannot recover against her. The affidavits show a strong primâ facie case of knowledge.]

*Sykes showed cause in the first instance, upon an affidavit of the plaintiff's son, who swore that, in the course of the several [*78+ interviews he had had with the defendant, she spoke of the income she derived under her "deceased husband's will," and that she never said anything to induce him to believe that she had a husband living. In Partridge v. Clarke, 5 T. R. 194, the Court refused to discharge a married woman from arrest, on common bail, where it appeared that she had obtained credit pretending that she was single. In Luden v. Justice, 1 Bingh. 344, 8 J. B. Moore 346 (E. C. L. R. vol. 17), this Court refused in an action against a feme covert, upon a summary application, to cancel the bail-bond, on the defendant's filing a common appearance, where much of the debt sued for was contracted before the defendant disclosed her coverture, where she had acted with duplicity, and at the time of the application was residing out of the jurisdiction of the Court. Park, J., there said: "This is an application to the discretion of the Court, and we must decide on all the circumstances of such a case as it appears before the Court. In the present, we think the defendant ought to be left to plead her coverture. The case of De Gaillon v. L'Aigle, 1 Bos. & P. 8, was much stronger than the present: there, the husband had given his wife a power of attorney

to transact his business, and himself went abroad. But the Court said they would not discharge the defendant, though the plaintiff was acquainted with the fact of her coverture: and, upon reference to Waters v. Smith, 6 T. R. 451, it appears the Court said in that case, that, where a married woman imposed upon a trader, and contracted on her own credit, they would, not relieve her in a summary way. In Pritchett ". Cross, 2 H. Bl. 17, Gould, J., seemed to disapprove of the summary proceeding by motion, and of taking the fact of coverture from the defendant's affidavit, *and mentioned the case of Mrs.

*785] Baddeley,Hatchett v. Baddeley, 2 W. Bl. 1079,-where the Court were not satisfied with an affidavit, but put her to plead her coverture; and he said that he had always understood that such was the course both in the Queen's Bench and Common Pleas. In Burfield v. The Duchess De Pienne, 2 N. R. 380, the defendant had never represented herself as a single woman: and Heath, J., said, 'In Deerly v. The Duchess of Mazarine, 2 Salk. 646, where a verdict was found against the duchess, the Court refused to relieve her, though her coverture was clearly proved: and, if there be any case in modern times more recognised than another, it is that case.' We ought not to interfere in favour of the present defendant." If this be the proper mode of deciding such a question, the plea of coverture is useless.

Finlason, in support of his rule.-If the plaintiff knew of the coverture when the writ was issued, the defendant is clearly entitled to have it set aside. If it could be shown that the defendant had made any representation to induce the plaintiff to believe that she was unmarried, she would not be entitled to costs. In Slater v. Mills, 7 Bingh. 606 (E. C. L. R. vol. 20), 5 M. & P. 603, the defendant, a married woman, was arrested upon a bill of exchange which she had given for the education of children by a former husband. The plaintiff having been apprised of the second marriage, the Court discharged the defendant upon a summary application, although she had given out that she had property of her own, and that the bill would be duly paid. Tindal, C. J., in giving judgment, said: "In this case the fact of coverture is placed beyond dispute: and, if the parties went to trial on the plea of coverture, there could be no doubt of the result, so that *786] all the *intermediate expense of pleading would be thrown away. The marriage having been known to the drawer of the bill, the defendant is entitled to apply to the Court for her discharge: but, as she induced the party to receive the bill by [mis-]representations as to her means of payment, the rule must be absolute without costs."

ERLE, C. J.-It is extremely inconvenient at all times to discuss contested facts upon affidavit. But, upon all the affidavits here, I cannot avoid arriving at the conclusion that the judgment is irregular, and should be set aside. Although I am of opinion upon the affiladavits that the defendant is a married woman, there is enough of peculiarity about the transaction to induce me, while I interpose to save the defendant from further useless litigation, to say that the judgment should be set aside and the proceedings stayed without

costs.

The rest of the Court concurring,

Rule absolute accordingly.

[*787

*In the Matter of the Complaint of JOSEPH BAXENDALE and Others, carrying on Business under the Firm of PICKFORD & CO., against THE BRISTOL AND EXETER RAILWAY COMPANY. Jan. 13.

A railway Company permitted a carrier (who also acted as superintendent of their goods traffic) to hold himself out as their agent for the receipt of goods to be carried on their line, and his office as the receiving office of the Company; and goods were received by him at that place without requiring the senders to sign conditions which the Company required all other carriers who brought goods to their stations to sign:-Held, an undue preference, and the subject of an injunction under the 17 & 18 Vict. c. 21.

BOVILL, Q. C., in Trinity Term last, on behalf of Messrs. Baxendales, obtained a rule calling upon the Bristol and Exeter Railway Company to show cause why a writ of injunction should not issue against them pursuant to the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), enjoining the said Company to desist from giving undue or unreasonable preference to persons delivering goods to the said railway Company at Bristol, to be carried by the said railway Company on their railway, and from subjecting the complainants to undue or unreasonable prejudice or disadvantage in respect of goods delivered by them to the said Company to be carried by them on their said railway; and enjoining the said Company to receive from the complainants at Bristol goods to be carried on the said Company's railway without requiring them to sign the conditions referred to in the said affidavits, unless they require other persons to sign such conditions; and restraining the said Company from subjecting the said complainants in their trade of carriers from Bristol to any undue or unreasonable prejudice or disadvantage in any respect whatsoever in respect of the matters referred to in the said affidavits or some of thein and why the said railway Company should not pay the costs of and occasioned by the application.

The motion was founded upon the affidavits of Joseph Marston, the agent of the complainants at Bristol, of George Jones, porter to Messrs. Culverwell & Co., of Bristol, Manchester warehousemen, of John Jones, porter to Messrs. Linton, Francis & Co. of Bris[*788 tol, Manchester warehousemen, and of Arthur Williams, porter to Messrs. Waterman & Co., of Bristol, wholesale boot and shoe manufacturers.

The affidavit of Joseph Marston stated that the complainants were in the habit of carrying large quantities of goods for their customers from Bristol to Exeter and other places on the Bristol and Exeter Railway, delivering them for that purpose to the said Company at their railway station at Bristol; and that the Bristol and Exeter Railway Company refused to carry goods from Bristol to Exeter and other places as aforesaid for the complainants, unless the complainants would sign or cause to be signed a printed paper called a "forwarding note," which purported to be a request to the Company to "receive for transit, as per address and particulars on this note, the undermentioned goods, on the conditions stated on the other side." These conditions were as follows:

"The Bristol and Exeter Railway Company give public notice,First, that they will not be answerable for any article conveyed upon

their railway, unless it be entered and signed for as received by them, nor will they be responsible for the loss of or injury to any article or articles or property of the descriptions following, that is to say, gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any description, trinkets, bills, notes of the Governor and Company of the Banks of England, Scotland, and Ireland respectively, or of any other bank in Great Britain or Ireland, or of any foreign country, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, title deeds, paintings, engravings, pictures, gold or silver

plate or plated articles, glass, china, silks in a manufactured *789] or unmanufactured state, and whether wrought up or not wrought up with other materials, furs, or lace, or any of them, contained in any parcel or package which shall have been delivered either to be carried for hire or to accompany the person of any passenger on their railway, when the value of such article or articles or property aforesaid contained in such parcel or package shall exceed the sum of 107.

"Secondly, that they will not carry or allow to be carried upon their railway for any person, unless by special agreement, any aqua fortis, oil of vitriol, gunpowder, lucifer matches, or any other goods which in their judgment may be of a dangerous nature; and, if any person send by the railway any such goods, without distinctly marking their nature on the outside of the package containing the same, or otherwise giving notice in writing to the book-keeper or other servant of the Company with whom the same are left, at the time of so sending, he will be liable, by Act of Parliament, to a penalty of 107., which will be strictly enforced, as will also the amount of damage sustained on any other goods by means of the aforesaid dangerous articles.

"Thirdly, that they will not, until further notice, undertake to carry upon their railway for any person, unless by special agreement, any boiler, cylinder, bob, or single piece of machinery, or single piece of timber or stone, or other single article, the weight of which shall exceed four tons.

"Fourthly, that they will not be answerable for the loss of or for damage to any goods arising from fire, civil commotion, tempest, or the act of God: nor for loss, detention, or damage of wrappers, boxes, or returned empties of any description, nor for any goods put into returned wrappers, boxes, or empties; nor for any goods left until called for or to order, or left or *warehoused for the conveni*790] ence of the parties to whom they are consigned; nor for the loss, detention, or damage of any package, insufficiently or improperly packed, marked, directed, or described, or containing a variety of articles liable by breaking to damage each other: nor for leakage arising from bad casks or cooperage, nor for damage to cast-iron work, furniture, or other goods of light construction. And they give notice that no claim for damage will be allowed, unless made within three days after the delivery of the goods, nor for loss unless made within. three days of the time that they should be delivered.

"Fifthly, that no credit can be allowed, excepting by special arrange

ment, but all goods must be paid for either previously to or at the time of delivery; and, if payment be refused, any charge for redeli very must be also defrayed, in addition thereto. If goods are refused to be received by the consignee, for any cause whatever, they will be carried back and redelivered to the consignor thereof, who will be required to pay the charge for such back-carriage and redelivery.

Sixthly, that all goods, from whomsoever received, or to whomsoever belonging, shall be subject to a general lien, not only for the carriage of those particular goods, but also for any general balance that may be due by the owners or by the public carriers of such goods to the said Company; and that if in fourteen days after notice shall have been given that such goods are detained for any claim of the Company, and the money due be not paid,(a) the goods will, at the discretion of the Company, be sold by auction to defray the Company's claims, and all expenses incurred thereon. But fish, fruit, and all other perishable articles will be disposed of at the discretion of the Company immediately after giving the above notice, and without awaiting the expiration of the above period of fourteen days.

*Seventhly, that all goods addressed to places within the limits of the Company's local regulations for delivery of goods [*791 from the different stations on the railway, respecting which no directions to the contrary shall have been received, will be delivered by the Company at those places.

"Eighthly, that the delivery of goods will be considered to be complete. and the responsibilities of the Company will be considered to terminate, when the goods shall be unloaded out of the wagon, van, cart, or truck, and placed at the door of the consignee; and that the cellaring or warehousing of them will be at the owner's risk and expense; as also the removal of goods from the sender's premises into the agent's cart or wagon.

"Ninthly, that they will not under any circumstances be liable for loss of market or other claim arising from delay or detention of any train, whether in starting, or at any of the stations, or in the course of the journey. The Company do not undertake to send goods by any particular train, if there be an insufficient number of trucks at the station, or the trucks cannot be conveniently used for the purpose, notwithstanding the goods may have been taken to the station before the time appointed by the Company.

"Tenthly, that all goods addressed to consignees resident beyond the limits of the Company's local regulations for delivery of goods from the different stations on the railway, and respecting which no directions to the contrary shall have been received previous to arrival at the station, will be forwarded to their destination by public carrier or otherwise as opportunity may offer; or they will, at the discretion of the Company by whom they may have been received, be suffered to remain on the Company's premises, or be placed in shed or warehouse, if there be convenience for receiving *the same, pending communication with the consignees, at the risk of the owners, [*792 as referred to in clause No. 4. But that the charges of such carrier will be added to those of the Company, and the delivery of the goods by the Company will be considered as complete, and the responsibility

(a) Sic.