case etherington against reynolds if a plaint be levy against a feme sole in a  inferior court and she remove it by habeas corpus and put in bail as a feme  sole yet if the plaintiff declare against her as such she may plead coverture  in bar S c salk a indebitatus assumpsit and accuse computasset be bring  against the defendant Reynolds she plead in abatement that she be a femecovert  the plaintiff reply that be enter a plaint against her when sole in the palace  court which she remove into the court of king bench by habeas corpus cum  causan and put in bail as a feme sole and the plaintiff deliver her a  declaration agreeable to the plaint below to which replication the defendant  demurrer Pengelly for the defendant that she have remove herself up by habeas  corpus and have put in bail to answer a declaration here nothing of the  proceed below be remove as in case of a certiorari or to think over in the  case of surs v turner a Hilary term queen whether a and the modern report  plaintiff ought to have declare against her as she be at the time of the  declaration deliver and not as a feme sole accord to the plaint below holt  chief justice if a indebitatus assumpsit be bring in a inferior court and the  defendant remove it up by habeas corpus and to the declaration above plead non  assumpsit infra sex aged the plaintiff may reply that a plaint be deliver in a  inferior court within six year but to this the plaintiff can reply that the  defendant be sole when the plaint be levy below the court be incline to give  judgement for the defendant but as a indulgence for the equity of the cause it  be adjourn to Hilary term next b S c salk say it be rule to be a good plea for  in the superior court the proceed be de to make new and the court take no  notice of the proceed below or of what precede the habeas corpus but the  course be in such case to move the matter to the court upon the habeas corpus  and the court will grant a procedendo for though a habeas corpus be a writ of  right yet where it be to abate a rightful suit the court may refuse it b