And Lord Raymond, C. J. observed in Child v. Hardyman (0), that" if a woman elope from her husband, although she do not go away with an adulterer, or in an adulterous manner, the tradesman trusts her at his peril, and the husband is not bound." And it seems that in such case a notice not to trust the wife need not be given, it being the duty of the tradesman, before he trusts a woman under such circumstances, to make inquiries (p). So where in pursuance of a deed of separate maintenance, a wife quits her husband against his will, and continues to live apart from him, although he is willing and wishes to receive her back, and provide for her in his own house, it seems he is not liable even for necessaries supplied to her (q).

III. When a Feme Covert may be considered as a Feme Sole, with regard to Contracts made with her during Marriage.

A married woman has, in general, no power or capacity to contract, so as to sue or be sued (r), either with or without her husband, on her contracts made during coverture (s). She has, in legal contemplation, no separate existence, her husband and herself being in law but one person (t); and is unprovided with the means of satisfying her engagements, her husband being entitled to her rights and property. Her incapacity rests upon these principles; not upon the notion that she is under the control of her husband during the coverture, and cannot on that account

assent.

It is now fully established, that a husband and wife cannot, by a deed securing a separate and sufficient maintenance to the wife, dissolve the relation of marriage, so as to enable the latter, even whilst living apart from her husband, and enjoying such separate fund, to contract as a feme sole (u). The marriage, and its legal

(0) Child v. Hardyman, Stra. 875. See Hunt v. Blaquiere, 5 Bing. 550; 3 Moo. & P. 108, S. C., per Cur.

(p) Ante, 172. See Todd v. Stokes, Ld. Raym. 444, 445; Hinton v. Hutson, Freem. R. 248; Boulton v. Prentice, Stra. 1214, note.

(g) Hindley v. Marquis of Westmeath, 6 B. & C. 200; 9 Dowl. & R. 351. (r) Even in equity as to her separate estate, 1 M. & C. 10.

(s) Com. Dig. Baron and Feme,

N

(W), Pleader, (2 A 1). See the cases 1 Chitty Pl. 6th ed. 28, 72, 202; Cosio v. Bernales, 1 R. & M. 102. And even in an action against both for a debt due from the wife before marriage, the declaration is bad if it state a promise by both after the marriage, Morris v. Norfolk, 1 Taunt. 212; Pittam v. Foster, 1 B. & C. 248; 2 Dowl. & R. 363, S. C.

(t) Litt. sec. 28.

(u) Marshall v. Rutton, 8 T. R. 545.

consequences, as regards the wife, still exist: and consequently, (although the separation deed may be valid, and the husband is not liable for her debts, if the separate fund allotted to his wife be adequate to her support, and be duly paid (x),) the wife cannot contract, or sue, or be sued at law, even for necessaries; and he who trusts her relies on her honour only (y). Nor is a married woman liable on her contracts, although she live apart from her husband in a state of adultery, and there exist a valid divorce a mensâ et thoro, and she contract during the separation in the assumed character of a single woman (~). Nor is her personal representative liable under such circumstances, at least at law, although he have abundant assets (a). And her husband is entitled to all property acquired by her, though she be living separate from him, in a state of adultery (b).

To this, as to all other general rules, there are, however, some few exceptions, introduced as well for the benefit of the wife to save her from starvation, as in justice towards her creditors, who, under the peculiar circumstances which give rise to these modifications of the general principle, have no other remedy.

When the legal existence of the husband may be considered as extinguished, or suspended; when he is dead in law, as in the case of transportation for life, or a limited term, under a legal judicial sentence, his wife may contract, so as to render herself personally responsible; and may sue and be sued upon her agreements (c). And although a convict sentenced to transportation. remain in this country, (at the Hulks), the wife may be considered as a feme sole whilst the sentence is in force (d). It has been decided at Nisi Prius, that a married woman, whose husband has been transported for seven years, may even after the expira

(x) Ante, 170.

(y) Marshall v. Rutton, 8T. R. 545. Decided by the twelve judges; overruling Corbett v. Poelnitz, 1 T. R. 5; and semble, Ringstead v. Lady Lanesborough, 3 Dougl. 197; see id. 204, note, and other cases there cited. See the argument, 1 Powell on Contracts, 80, &c. If a married woman, under such circumstances, hire furniture, the contract is void; so that the tradesman is not divested of his present property therein, and may maintain trover against a third person who takes it, Smith v. Plomer, 15 East, 607. As to arresting or taking her in execution, 2 Arch. by Chitty, 948.

(z) Lewis v. Lee, 3 B. & C. 291; 5 D. & R. 98, S. C.; Faithorne v. Blaquire, 6 M. & Selw. 73; Turtle v. Worsley, 3 Doug. 290; sed vide Cor v. Kitchin, 1 B. & P. 338.

(a) Id.; Clayton v. Adams, 6 T. R.

604.

(b) Agar v. Blethyn, 2 C., M. & R. 699; 1 Tyr. & G. 160, S. C.

(c) Lady Belknap's Case, Year Book, 2 Hen. 4, f7 a; 1 Hen. 4, 1, pl. 12; Bac. Abr. Baron & Feme, (M); Lean v. Schutz, 2 Bla. R. 1197; Marsh v. Hutchinson, 2 Bos. & P. 231.

(d) Ex parte Franks, 7 Bing. 762; 1 M. & Scott, 1, S. C.

tion of that time maintain an action as a feme sole, if her husband remain abroad, on the ground that her husband by so doing has abjured the realm; the judge (Lord Alvanley) observing, "that by the record of the conviction and sentence produced, there was conclusive evidence to support the right of action in the plaintiff as a feme sole, it appearing thereby that the husband had abjured the realm, and though the term of his transportation had expired, if in fact he had not returned, the right of action remained; but that if the defendant meant to rely that he (the husband) had so returned, by which the plaintiff's right of action in her sole capacity would be at an end, the proof of that lay on the defendant (e)." But the right to return after the period prescribed being undoubted, and the infliction of the punishment having rendered the husband (at all events if he returned) liber et legalis homo, and competent to sue; much difficulty appears to exist in considering the mere non-return as an abjuring of the realm; although it might be so, if the husband clearly had no intention to return home, and voluntarily remained abroad (ƒ).

There seems to be some doubt whether if an alien ami husband is resident abroad, and never has been in this country, and his wife reside here and contract debts as a feme sole, representing herself to be such, she is responsible (g). In the case of an alien who has once resided in this country, the animus revertendi is, it seems, to be presumed, unless the contrary appear; and therefore Lord Ellenborough held at Nisi Prius, that a woman by birth an alien, and the wife of an alien, cannot be sued as a feme sole, if her husband has lived in this country, although he has left her here, and entered into the service of a foreign state. And the Court of King's Bench confirmed this decision (). Clearly in the case of an

(e) Carrol v. Blencow, 4 Esp. 27. See Marsh v. Hutchinson, 2 B. & P.231, 233. (f) And see Stretton v. Busnach, 1 Bing. N. C. 140.

(g) Barden v. Keverberg, Mee. & W. 61, 65; Stretton v. Busnach, 1 Bing. N. C. 139; 4 M. & Scott, 678, S. C.; Duchess of Mazarine's Case, 1 Lord Raym. 147, where the husband was an alien enemy; Kay v. De Pienne, 3 Camp. 124, per Lord Ellenborough; Williamson v. Dawes, 9 Bing. 295, 296; 3 M. & Scott, 352, S. C., per Bosanquet, J. De Gallion v. L'Aigle, 1 B.

& P. 357, which was decided before Marshall v. Button, 8 T. R. 545. It should seem that the only case in which a married woman can be sued as a feme sole, is where she contracts as such, her husband being civiliter mortuus, per Parke, B., Barden v. Keverberg, 2 Mee. & W. 64.

(h) Kay v. De Pienne, 3 Camp. 123. Sed vide Walford v. De Pienne, and Franks v. De Pienne, 2 Esp. 554, 587; Burfield v. De Pienne, 2 New R. 380. Per Parke, B. Barden v. Keverberg, 2 Mee. & W. 65.

Englishman, who may at any time be recalled by the king (i), and whose return is to be presumed, his mere residence abroad is not tantamount to a civil death; and the wife who contracts in this country is not liable to be sued, and cannot sue as a feme sole (k), although she assumed that character (1). Where the husband is an alien enemy, as he cannot lawfully be in England, the wife may, it seems, contract and be sued as a feme sole, this being a case analogous to the instance of a wife of a person transported (m). It has, however, been decided that a married woman cannot be sued upon her contract, although before it was made her husband became bankrupt, and absconded without appearing to his commission, and continues to reside abroad (n). Where a husband has been abroad, and not heard of for seven years, it shall be presumed he is dead, and the wife is liable (0).

By the custom of London, a feme covert, being a sole trader in the city independently of her husband, may sue and be sued in the city courts, with reference to her dealings as such trader in London (p). But even there, it seems, as well as in the courts of Westminster, the husband must be made a party to the suit for conformity (q). But the wife shall be considered to be the real and substantial party to the suit (r).

The sentence of a court of competent jurisdiction annulling the marriage ab initio, entirely removes the incapacity of the feme, and renders her responsible as if the ceremony of marriage (it being void) had never taken place (s).

There are cases in which, as an exception to the general rule (t), married women have been allowed to join with their husbands in actions upon certain contracts, or instruments, entered into even during the coverture, and with regard to which the wife

(i) See Chit. jun. on Prerog. 24, 5. (k) Marsh v. Hutchinson, 2 B. & P. 226; Farrar v. Grannard, 1 New R.

80.

See Williamson v. Dawes, infra. Bogget v. Frier, 11 East, 301. The case of Ringstead v. Lady Lanesborough, 3 Doug. 197, cannot now be considered law.

(1) Id.; M'Namara & Ux. v. Fisher, 3 Esp. R. 18.

(m) Burden v. Keverberg, 2 Mee. & W.65.

(n) Williamson v. Dawes, 3 M. & Scott, 352; 9 Bing. 292, S. C.

(0) Hopewell v. De Pinna, 2 Camp. 113, 273; 1 Jac. 1, c. 11, s. 2; Rowe

v. Hasland, 1 Bla. R. 404; Doe v. Jesson, 6 East, 80; Nepean v. Doe dem. Knight, 2 Mee. & W. 894.

(P) Bac. Ab. Baron & Feme, (M). (9) Candel v. Shaw, 4 T. R. 361; Beard v. Webb, 2 B. & P. 93.

(r) Laughan v. Bewell, Cro. Car. 67; 10 Mod. 6; Beard v. Webb, 2 B. & P. 93, 101. See 3 Chit. Com. L. 37.

(s) See Anstey v. Manners, 1 Gow, R. 10. As to divorce a mensá et thoro, ante, 170, 178.

(t) See 1 Chitty Pl., 6th ed., 30; Cosio v. De Bernales, 1 R. & M. 102; ante, 177; Nurse v. Wills, 4 B. & Ad.

739.

is, as it is termed, the meritorious cause of action. Thus, in the instances of an express promise to the wife in consideration of her personal labour and skill, as that she would cure a wound (u); and of a bond (r), or promissory note (y), payable on the face thereof respectively (2) to her, or, it seems, to her husband and herself; she may be joined with him in the action, or he may sue alone. And it seems that in these cases the wife is entitled by survivorship to the money due upon the judgment recovered by both (a).

We have already noticed the cases respecting the effect of a promise of a woman, after her husband's death, to pay a debt contracted by her during coverture (b).

A married woman may be an executrix or administratrix. And where a married woman, being executrix, took a note from her husband and A. B. during coverture, for money lent by her in her representative character to her husband, it was held that she might, after her husband's death, sue A. B. upon the note (c).

6.-OF CONTRACTS WITH ALIENS.

An alien ami or friend may legally enter into a contract with a

(u) Brashford v. Buckingham, Cro. Jac. 77, 205; Fountain v. Smith, 2 Sid. 128; Weller v. Baker, 2 Wils. 424.

(x) Day v. Pargrave, 2 M. & Selw. 396, note (b).

(y) Philliskirk v. Pluckwell, 2 M. & Selw. 393.

(z) The declaration should expressly show in what respect the wife has a prominent and particular interest enabling her to join; Bidgood v. Way, 2 Bla. R. 1236; Philliskirk v. Pluckwell, 2 M. & Selw. 396; Nurse v. Wills, 4 B. & Ad. 739, ante. When the wife may join in an action on an agreement with husband and wife in consideration of forbearance by them, id. In the case of a bond or note expressly payable to her, or to both, it would sufficiently appear from the instrument itself, if set out truly in the declaration, without further averment, that she had a particular interest, id. It seems that the wife may always be joined, where in case of the death of her husband she would take the debt or chattel sought

to be recovered by survivorship, Ayling v. Whicher, 6 Ad. & E. 264. Where husband and wife declared for a debt due for a cure effected by the wife during coverture, and the declaration also contained a charge for medicine supplied; upon general demurrer it was held that the wife was improperly joined, as she was not the sole cause of action, the medicines being the property of the husband only; Holmes and Wife v. Wood, cited in 2 Wils. 424; noticed by L. Ellenborough, in 3 M. & Selw. 396. The husband may declare alone on a note made to his wife during coverture, alleging it was payable to him, Arnould v. Revoult, 4 Moo. 71, 72. Ante, 159.

(a) 1 Chit. Pl., 6th ed., 32; Co. Lit. 351 a, n. (1); Bidgood v. Way, 2 Bla. R. 1239. And it seems she takes by survivorship money due on a decree in chancery in a suit by both; dams v. Lavender, M'Clel. & Y. 41. (b) Ante, 33.

(c) Richards v. Richards, 2 B. & Ad. 447.