221. A feme covert cannot be sued alone, even if divorced à mensâ et thoro for adultery, and in the receipt of a competent allowance for her maintenance ;(s) nor can she, if a sole trader in the city of London, be sued as such in the courts at Westminster, and even in the city courts the husband should be joined for conformity ;() and the plea of coverture is available to the personal representatives of a feme covert, as well as to herself: (u) and *the only exceptions to this rule are, in case of the husband's ban

ishment, abjuration of the realm, or death in law, or presumption of [*176]

law, or in the event of the marriage being dissolved by a divorce à vinculo matrimonii,(x) or being pronounced void ab initio.(y) Transportation for life or a term of years, is tantamount to permanent or temporary civil death.(z) 222. Analogous to the case of a person transported is that of an alien enemy who cannot lawfully reside in England;(a) though, it seems, that the wife of an alien ami who has never been in this kingdom cannot be sued as a feme sole; at all events, it will be necessary to prove, that she represented herself as such, or that the plaintiff dealt with her believing her to be such ;(b) and even with evidence to this effect, the action will fail if it appears that the husband once lived here, though resident abroad many years anterior to the contract declared on :(c) and if the husband, being a subject of the crown, abscond, and reside in a foreign *land, it is

clear that the wife cannot be sued alone, though she obtained credit [*177]

as a feme sole.(d)

223. If the wife survive she may be sued on all causes of action which accrued prior to her coverture ;(e) but the husband's bankruptcy and certificate, or his discharge under the insolvent act, will release her from all debts contracted before marriage, which are provable under the commission.(g) If there be a joint lease to husband and wife, the wife cannot disagree to it during the life of her husband, and if she acquiesce after his death she will be liable for all arrears of rent which accrued during his lifetime; but it is said, that if there be any special covenants inserted in the lease, she is not bound by them after the death of her husband,

(s) Lewis v. Lee, 3 B. & C. 291;a Marshall v. Rutton, 8 T. R. 545; Faithorne v. Blaquire, 6 M. & S. 73.

(u) Clayton v. Adams, 6 T. R. 604.

(t) Beard v. Webb, 2 B. & P. 93. (z) Co. Litt. 133, a.; 1 Bla. Com. 443; Bac. Ab. Bar. and Feme, (M.); Per Abbott, C. J., Lewis v. Lee, 3′ B. & C. 297 ;b Marshall v. Rutton, 8 T. R. 548; Per Blackstone, J., Hatchett v. Baddeley, 2 W. Bla. 1082; Per Tindal, C. J., Williamson v. Dawes, 9 Bing. 295; ante, ss. 99, 100. (y) Anstey v. Manners, 1 Gow, R. 10.

(2) Sparrow v. Carruthers, cited 2 W. Bla. 1197; Ex parte Franks, 7 Bing. 762,d and cases there cited; ante, s. 100.

(a) Per Parke, B., Barden v. De Keverberg, 2 M. & W. 65; Derry v. Dutchess of Mazarine, 1 Lord Raymond, 147.

(b) Barden. v. De Keverberg, 2 M. & W. 61 and 64-per Parke, B.

(c) Stretton v. Busnach, 1 Bing. N. C. 139, and the cases there cited; Kay v. De Pienne, 3 Camp. 123.

(d) Williamson v. Dawes, 9 Bing. 292 ;s Marsh v. Hutchinson, 2 B. & P. 231, 232; Farrar v. Countess of Granard, 1 B. P. N. R. 80.

(e) Mitchinson v. Hewson, 7 T. R. 348. 350; Woodman v. Chapman, 1 Camp. 189. (g) Lockwood v. Salter, 5 B. & Ad. 303,h recognizing Miles v. Williams, 1 P. Wms. 249, and In re M'Williams, 1 Sch. & Lef. 169, and observing on Sparkes v. Bell, 8 B. &

C. 1.i

Eng. Com. Law Reps. 10. Id. 10. Id. 23. dId. 20. Id. 5. Id. 27. Id. 23. hId. 27. Id. 15.

MAY, 1747.-9

although she continues tenant by force of the demise.(h) Where goods were supplied to a feme covert, living apart from her husband, for which, subsequently to his death, she promised to pay; it was held that, as the price of the goods originally constituted a debt from the husband and not from the defendant, the declaration did not disclose any sufficient consideration for the promise alleged :(i) and where, in an *action for goods sold and delivered, to a plea of coverture plaintiff [*178] replied a promise by defendant after her husband's death; the court decided that no consideration appeared for the promise in the replication, that such promise was distinct from that declared on, and that the replication was consequently a departure.(k) On the same grounds a promissory note given by a married woman is absolutely void, nor would she be rendered liable by a promise of payment, in consideration of forbearance, subsequently to the husband's death;(7) but an indorsement by a married woman, whether made in her own or her husband's name, provided she were duly authorized by him, or if such authority could be presumed, will convey a good title to the indorsee.(m)

224. An action will lie in the following cases, either against husband and wife jointly, or husband alone-debt for rent due after marriage, under a lease to wife dum sola, or under a lease which the wife has as executrix or administratrix.(n) So, debt or covenant, it seems, will lie for rent or breaches of the covenants in a lease to *husband and wife jointly [*179] for the wife's benefit;(0) and an action of covenant was held to lie against husband and wife, on a warranty made by them jointly annexed to an estate for years in a fine.(p) So, husband and wife may be sued jointly in debt for double the yearly value of premises demised to the wife, who had notice, before coverture ;(q) nor was it held necessary, in such a case, to give notice to the husband subsequently to the marriage.(r)

225. For breaches of the wife's contracts committed, or debts incurred before marriage, as for rent then due under a demise to her, the rule is, that husband and wife must be jointly sued; and this holds if the contract were entered into by the wife before marriage, but broken subsequently, though the promise must be laid by the wife whilst unmarried;(s) and

(h) Woodfall, L & T. 4th ed. 36, 37; 2 Wms. Saund. 180, n. (9). See Wotton v. Hele, 2 Saund. R. 177.

(i) Littlefield v. Shee, 2 B. & Ad. 811, distinguishing v. Muggeridge, 5 Taunt. 36;' the authority of which latter case is shaken by the judgment in Eastwood v. Kenyon, 11 A. & E. 449, 450.m See Smith v. Johns, Cro. Jac. 257.

(k) Meyer v. Haworth, 8 A. & E. 467.n

(1) Lloyd v. Lee, 1 Stra. 94.

(m) Barlow v. Bishop, 1 East, 432; Prestwick v. Marshall, 7 Bing. 565;o Cotes v. Davis, 1 Camp. 485.

(n) Com. Dig. Bar. and Fem, (Y.); 1 Roll. Ab. 349, pl. 45. 50. Covenant on a demise to wife whilst sole, the breach being during coverture, was held to lie against husband and wife. Anon., 6 Mod. 239. As to the remedy for arrears of a rent-charge on land held by husband in right of wife, see per Holt, C. J., Billingsworth v. Spearman, 11 Mod. 169.

(0) Bac. Ab. Bac. and Feme, (L.); Com. Dig. Bar. and Feme, (Y.); Vin. Ab. Bar. and Feme, (X.)

(p) Wotton v. Hele, 2 Saund. R. 177.
(9) Lake v. Smith, 1 B. & P., N. R., 174.

(r) Id.

(8) Bac. Ab. Bar. and Feme, (L.); Vin. Ab. Bar. and Feme, (X.), pl. 15; Mitchinson v. Hewson, 7 T. R. 348; Robinson v. Hardy, 1 Keb. 281. Marriage de facto is sufficient to *Eng. Com. Law Reps. 22. 'Id. 1. Id. 39. "Id. 35. Id. 20.

neither will a promise by, or account stated with the husband after marriage, be of itself sufficient to support an action against him as sole defendant.(1) But an action for use and occupation was held not to lie against the husband alone *who married during the current half year, for

rent falling due at its termination, there having been no occupation [*180] by him, either in fact or in law, during the former part of such period.(u) Where also the cause of action accrued against the feme in autre droit, and in respect of a personal contract of the deceased, she must be sued jointly with her husband.(x)

226. To an action against husband and wife for a debt due from the wife before coverture, the husband's discharge under the insolvent act is a good plea:(y) and in like manner his bankruptcy and certificate constitute a valid defence.(2) Moreover it should be observed, that the discharge of the wife before marriage under the insolvent act is a bar to an action against husband and wife for a scheduled debt contracted previously to such discharge; and it seems that, where a discharged female insolvent acquires property and marries, whereupon such property vests in her husband, the statute affords no remedy by which it can be made available to her former creditors.(a) The discharge, however, of a feme covert, under the recent act 1 & 2 Vict. c. 110, s. 101, does not, by its express provision, operate to discharge her husband, from any debt mentioned in her schedule, and *such debt, so far as the same is unsatisfied, shall remain in force against the husband as fully, to all intents and purposes, as if the wife had not obtained such discharge.(b)

[*181]

227. The contract of an infant is, by law, voidable, except it be for necessaries, in which case the infant is absolutely bound ; (c) but infancy is no defence where the contract or promise has been ratified after arriving at full age, provided such ratification is in writing, signed by the party to be charged therewith. (d) And this remark applies to an account stated by an infant, which is voidable only and not absolutely void, and is therefore, like other contracts, capable of being ratified after he has attained his full age. (e) Where one of two joint contracting parties is an infant, he may

charge the husband for his wife's debts, incurred before coverture. Norwood v. Stevenson, Andr. 227. See the form against husband and wife on a bill of exchange accepted by the wife before marriage, Chitt. jun. Plead. 89. See ante, s. 218. (t) Ante, s. 219.

(v) Richardson v. Hall, 1 B. & B. 50; (x) Mounson v. Bourn, Cro. Car. 518;

tration, (D).

Woodfall, L. & T. 4th ed. 641.

Kings v. Hilton, Id. 603; Com. Dig. Adminis

(y) Lockwood v. Salter, 5 B. & Ad. 303. Quære, whether it can be replied that the wife had separate property? Id.

(z) Id.; Miles v. Williams, 1 P. Wms. 249; In re M'Williams. 1 Sch. & Lef. 169. (a) Storr v. Lee, 9 A. & E. 868.r

(b) Stat. 7 Geo. 4, c. 57, s. 72. See the judgment in Sherrington v. Yates, 12 M. & W. 864, affirming Miles v. Williams, supra, (z.)

(c) Bac. Ad. Infancy (I. 1). See Wood v. Fenwick, 10 M. & W. 195;* Macpherson on the Law of Infants, 477. 498, et seq.

(d) 9 Geo. 4, c. 14, s. 5. See Hartley v. Wharton, 11 A. & E. 934. Liability of infant widow, see Chappel v. Cooper, 13 M. & W. 252.*

(e) Williams v. Moor, 11 M. & W. 256,* distinguishing Trueman v. Hurst, 1 T. R. 40; and Bartlett v. Emery, Id. 42, note.

PEng. Com. Law Reps. 5. Id. 27. Id. 36. Id. 39.

*Reprinted by T. & J. W. J. at $2.50 per vol.

nevertheless be joined as a defendant in suing on the contract, and if the infancy be pleaded, a nolle pros. may be entered as to him; if, however, the adult only be sued, and the defendant plead in abatement, the infancy may be replied.(f) An infant, even when sued in autre droit, can appear and defend by guardian only, and not by prochein ami or by attorney; [*182] and therefore an appearance entered for the defendant, an infant

secundum statutum, is erroneous, and the Court will set it aside upon motion, without compelling the defendant to bring his writ of error.(g)

228. A person non compos mentis, like an infant, may contract for necessaries, if supplied bonâ fide. (h) With respect to the mode of appearing, the rule is, that an idiot defendant must appear in person, and then any one who prays to be admitted as his friend may defend for him; whereas a lunatic defends in the same manner as ordinary individuals. (i) It seems clear that an alien enemy, an outlaw, or an attainted felon, though unable to maintain an action in our courts, may nevertheless be sued on contracts entered into by him ;(k) for the rule is Utlegatus respondra à touts, mais nul respondra à luy.(7) With respect to the locus standi of an outlaw in court, it seems clear that he may appear not only for the purpose of reversing his outlawry, but likewise to protect himself from irregular proceedings; he cannot, however, save as above, take any steps for his own benefit during the continuance of the outlawry.(m)

2

[*183]

*CHAPTER IV.

1. BANKRUPTCY AND INSOLVENCY, ss. 229--238.

2. EXECUTORS AND ADMINISTRATORS, ss. 239-244.

1.-BANKRUPTCY AND INSOLVENCY.

How the Assignees of a Bankrupt should be sued, and when they are liable, ss. 229, 230. Liability of Bankrupt before and after Certificate, ss. 231-235. Insolvency, ss. 236— 238.

229. THE assignees of a bankrupt cannot be sued as such at law. (a) They must be personally charged on any contract entered into by them;

(f) Macpherson on the Law of Infants, 482-4. See Gillow v. Lillie, 1 Bing. N. C 695. As to the parent's liability for the infant's debt, see Mortimore v. Wright, 6 M. & W. 482; Seaborne v. Maddy, 9 C. & P. 497.

(g) Stephens v. Lowndes, 14 L. J., N. S., C. P., 229, and authorities there cited.

(h) See Tarbuck v. Bisham, 2 M. & W. 2.*

(i) Shelf. on Lunatics, 395, 396.

(k) Ramsay v. Macdonald, 1 W. Bla. 30; Banyster v. Trussel, Cro. Eliz. 516; Com: Dig. Abatement (E. 3).

(1) Loukes v. Holbeach, 4 Bing. 421.d

(m) Ante, s. 114. See also Davis v. Trevannion, 14 L. J., N. S., Q. B., 138.

(a) Ridout v. Brough, Cowp. 134, 135; Chitt. jun. Pleading, 11, n. (ƒ).

bEng. Com. Law Reps. 27. cId. 38. Id. 15.

♦Reprinted by T. & J. W. J., at $2.50 per vol.

hence the joinder or non-joinder of assignees, as defendants, will (as in ordinary cases) be determined by considering whether the particular contract was made on behalf of all the assignees or of that one who actually entered into it.(b) With respect to a contract entered into by the bankrupt, it is laid down, as already stated, that the assignees have the option of adopting or rejecting such a contract, according as it is likely to be beneficial or onerous to the estate; and in the former case, the bankruptcy has no other effect on such contract than to put the assignees in the place of the bankrupt, neither rescinding the obligations on either party, nor imposing new ones, nor *anticipating the period of performance on either

side.(c) An action at suit of the messenger, for fees and necessary [*184]

expenses incurred prior to the appointment of assignees, must be brought against the petitioning creditor; and for expenses incurred subsequently, against the assignees ;(d) and a creditor entitled to a dividend must now proceed by petition to the Lord Chancellor, who may order payment thereof, with interest for the time that such dividend shall have been withheld, and costs of the application.(e)

230. The assignees of a bankrupt lessee may, at their election, either accept or decline the term ;(g) and their adoption of the lease will be implied, if they intermeddle with the estate in the capacity of owners, or do any other act, as making entry on the premises, to manifest their assent to the assignment and their acceptance of the estate; (h) but the assignees will not render themselves liable by merely advertising leasehold premises for sale, with a view to ascertain their value, and without having, in fact, entered upon or taken possession of them.(i) *If the assignees adopt the lease, they are liable as ordinary assignees,(k) and may, like them, [*185] exonerate themselves from liability by assigning it over. (1) It must also be observed, that the statute applies only to cases arising between lessor and lessee and does not comprise cases between the lessee and assignee of a lease; and on the bankruptcy of the latter party, it operates only as a personal discharge of the bankrupt, and does not put an end to the lease; so that the lessee still remains liable on his personal covenants with the lessor.(m)

231. By stats. 6 Geo. 4, c. 16, s. 121, and 5 & 6 Vict. c. 122, s. 37, it is enacted, that every bankrupt who shall have duly surrendered, and in all things conformed himself to the laws in force concerning bankrupts at the

(b) Bothomley v. Usborne, Peake, Add. Cases, 99.

(c) See per Parke, B., Gibson v. Carruthers, 8 M. & W. 331; Twemlow v. Askey, 3 M. & W. 495; ante, ss. 117, 118.

v.

(d) Burwood v. Felton, 3 B. & C. 43; How, 2 Camp. 275; 6 Geo. 4, c. 16, s. 14. (e) 6 Geo. 4, c. 16, s. 111.

Billings v. Waters, 1 Stark. 363;f Finchett
See Hamber v. Purser, 2 Cr. & M. 209.
(g) 6 Geo. 4, c. 16, s. 75.

(h) Copeland v. Stephens, 1 B. & Ald. 593. 604; Hastings v. Wilson, Holt, N. P. C. 290; Hanson v. Stevenson, 1 B. & Ald. 303; Ansell v. Robson, 2 Cr. & J. 610; Welsh v. Myers, 4 Camp. 368; Clarke v. Hume, 1 Ry. & Mo. 207;i Gibson v. Courthope, 1 D. & R. 205; Hill v. Dobie, 8 Taunt. 325.k

(i) Turner v. Richardson, 7 East, 335; Wheeler v. Bramah, 3 Camp. 340.

(k) Woodfall, L. & T. 4th ed. 185.

(1) Onslow v. Corrie, 2 Mad. 330; Taylor v. Shum, 1 B. & P. 21.

(m) Manning v. Flight, 3 B. & Ad. 211. 215; Taylor v. Young, 3 B. & Ald. 521.TM

•Eng. Com. Law Reps. 10. Id. 2. Id. 3. Id. 21. Id. 4. 'Id. 29. Id. 5.