CH. 19. 2 P. W. 144, Norton v. Turrill sided in England. In Marshall v. Rutton, Reeve admits the reasoning of the court goes to overturn this and like cases; but says in Marshall v. Rutton, the husband had not renounced his marital rights. 7. Her separate estate is liable for her bond debts, and other debts she contracts; so Hulme v. Tenant. So she is Cited 6 T. R. liable when her husband is an alien enemy. 2 Salk. 646; Reeve's D. R. 100, art. 15. So she may sue alone, if her husband be an alien, and ever lives abroad and deserts her. 605. 15 Mass. R. 31. 1 Esp. 126.Cites Co. L. 132, 133, Durly v. Mas 116 ART. 11. His being an alien enemy, the effect, &c. as to this action. 1. Espinasse states the rule to be, that "wherever the hussarum.-Salk band is in circumstances not to be sued, as not amenable to the 1 Ld. Raym. process of the court, the wife shall be sued as sole;" as where 147, Sparrow the husband is an alien enemy, or has abjured the realm, the v. Carruthers. wife is chargeable as a feme sole; so where he was transported; so if she be a sole trader in London, 1 H. Bl. 337, 339; stated her husband was an alien enemy, New. on Con. 22, 23. -2 W. BI. 1197. 2. As to her contracts, as warranties, &c. for the benefit of her estate, see Covenant, c. 106, a. 4. 3. We have no statutes, but have adopted the principles of the English common law on this subject. Hence these Loft 131.- English cases are applicable in our practice. She may plead alone when he is transported. An alien cannot be a tenant by the courtesy, or have dower. 31 E. 1. Held, the wife of one who had abjured the realm could make a feoffment by deed with warranty of her land, and she was bound by it. Several Baron & 1 H. Bl. 846. Mass. S. J. Wheeler v. 341, and art. Orrok v. Orrok. like cases. ART. 12. When divorced from bed and board; this action, and how affected, and Ch. 46, Divorce. § 1. In this case Mrs. Wheeler had been divorced from her husband from bed and board, and the court ordered Mr. Wheeler to pay her a certain sum, quarterly, for her mainte 19, this ch―nance; this being in arrear, she brought her action against him, to recover the arrears, and it was objected that the plt. was the deft's. wife, and therefore that she could not maintain her action, but the court sustained it, from the necessity of the case. And as he cannot be liable beyond the maintenance, or annuity, or other sum directed to her in the order of divorce, and only in the manner therein directed, which usually is, to pay so much quarterly or yearly, it seems clear that she alone must be liable for what she buys or contracts for, or she can have no credit, and no one can have any security in her promises or contracts; and can there be any doubt but that she may buy on credit and be sued ? 2 Ves. jr. 145, cited 6 T. R. 2. In a case before the lord chancellor, in equity, he said, CH. 19. Art. 14. "if the husband and wife be separated by deed or sentence, an action may be brought against the wife alone;" but Lord Kenyon doubted, if the separation was by deed, as then, it was but temporary. A distinction here is to be noticed that deserves attention: when the separation is by sentence of a court, it is in law perpetual, as there is no provision made for revoking it; and if husband and wife thus separated from bed and board, again live together, it is contrary to the decree of the divorce, this the law does not presume. But if they separate by deed, the parties that made it can cancel it, or vary the terms of it. Hence it is pretty clear, that though Mrs. Wheeler was allowed to sue her husband when separated by judgment of court, yet she would not have been allowed to sue him on a contract made by them, had their separation been by deed. A legacy to the wife, living separate, and the executor paid it 1 Vern. 261. to her and took her receipt for it; held, he must pay it again -Baron and to the husband. Feme, 70, 71. son v. Har ART. 13. Where she is not liable to be sued, though living -1 Esp. 125, separate. Though she live separate and have a separate 126.--Thompmaintenance, yet she is not liable to be sued if it be not from vey, 4 Burr. her husband, and then he is not discharged. As where she has 2177, 2178. a pension, during pleasure, from the crown; "here is no agreement for a separation;" "he allows her no separate maintenance, or any support at all." Equity assists her credi- Pow. on Con, tors only to the extent of her separate maintenance, and in 101, 109, 110. equity she can have a separate interest. It must be on account of the separate support and allowance the husband himself makes for his wife, that he is exempted from maintaining her in the usual manner; and when he does not make this, the reason of the case or the consideration wholly fails; there is no reason for exempting him from paying her debts, or for making her liable for them, and it may be added, while he retains his marital rights. -3 P.W.335. 2 A. D. 1776. Hatchell v. ART. 14. Where she elopes-she is not liable for goods furnished her, though her husband is not liable. As where she was sued as a feme sole, for a carriage furnished her by the plt. during her elopement,. Pleas, non assumpsit, and also, cover- 6 Mod. 171. ture; verdict for the plt., but judgment was arrested. For though she eloped, she remained a feme covert, not having a separate maintenance or living apart from her husband, by his express permission; but certain exceptions were stated as in the custom of London, exile, transportation, alien enemy, A. D. 1799. &c. It seemed to be the opinion of the court in this case, that 1 Bos. & P. no action whatever lies against a feme covert, except where 351, DeGaillon v.L'Aigle, her husband may be considered as dead in law, and herself as id. 338, Cox a widow, or after a divorce a vinculo. But two decisions in v. Kitchin.1799, were different; as where her husband lived abroad, it Evid. 149. See 1 Phil. Сн. 19. Art. 15. 2 Bos. & P. 6 T. R. 604, 1 Wils. 149. 2 Stra. 1237, Harrison v. 1 Esp. 467. Stra. 1271.- was held, she was liable; so where she lived separate in adultery, without any separate maintenance in either case. There does not appear to have been any case of a divorce from bed and board in the English courts, in which the question has arisen, if she may sue her husband as in Wheeler v. Wheeler above, for the maintenance decreed her. Marsh v. Hutchinson, husband abroad in Holland, wife not liable, not having acted as a feme sole, and he not an alien. Here was no separation but merely that of place. ART. 15. She is not liable to be sued, though she carry on trade by herself and live apart. § 1. Assumpsit was brought against an executor for goods sold to his testatrix, Mary Byrne. The plea was coverture ; the replication was, that she lived separate from her husband, and carried on the trade and business of a haberdasher, as a feme sole, and the plt. dealt with her only, and as such, and as a feme sole she promised, that after her death the deft., as her executor took and possessed divers goods, which were in her possession as a feme sole, more than to the amount of the plt's. damages. The deft. demurred and had judgment; and Lord Kenyon said "it did not appear this could have been the separate property of the wife," and the executor could not be liable unless it was; and the probate of the will was absolutely void; and to take the wife in execution when sued alone is as a divorce between her and her husband. Lord Kenyon added, that "if any one proposition in the law can be more clear than another, it is this, that an action cannot be brought against a feme covert except by the custom of London." "A court of law cannot get at the property of the wife, if she have any," but a court of equity may modify it, &c. 66 § 2. But the reasons here stated do not apply with much force to a case where they live separate, and there is a separate maintenance; for in this case there is no inconvenience to the husband in her imprisonment, and why may not the execution run against her separate property, secured to her. But the case of Marshall v. Rutton is a late case, aud is pointedly against any action of this kind, if the separate maintenance be good &c., and the marital rights renounced. 3. According to Langstaff v. Rain & ux., the husband and wife may both be taken in execution in an action for the assault done by the wife; this was decided on a motion to discharge the wife out of custody, and the motion was refused. on the authority of Finch & ux. v. Dudding & ux., in which case the wife alone was taken in execution, where the husband could not be found. Both may be taken on a capias in execution. § 4. But if arrested on mesne process, she shall be discharg ed, and her husband retained until he find bail for both. Stra. CH. 19. 116. Art. 15. § 5. In assumpsit for goods sold and delivered it was decided that a feme covert, living separate from her husband, and 4 T. R. 766, in adultery, could not be sued as a feme sole, where she had Gilchrist v. no separate maintenance. [There was no abandonment of his marital rights;] but 1 see Bos. & P. 338. Brown. Kitchin. 2 Com. D.70. -1 Bos. & P. 226, Norton v. Fagon. 6. But A. D. 1799, the contrary was adjudged, and that 1 Bos. & P. if she live apart from him, in a state of adultery, she is liable 338, Cox v. on her own contracts, though she have no separate maintenance; but he is liable, if she live in a state of adultery in his house and family, and he leaves her there. In this last case, the person who trusts cannot know her situation, and cannot be supposed to give credit to her, but to the husband, the head of the family. 683, Ellah v. 7. Assumpsit for use and occupation. The deft. pleaded A. D. 1794, coverture; the plt. replied, that before the promises were 5. T. R. 679, made, to wit., July 1, 1779, the deft. and Charles Leigh were Leigh.-6 D. separated, and that July 2, 1770, a certain court in a suit pend- & E. 604. ing between them allotted to her £220 a year, as alimony during that suit that this suit was still pending, and that her alimony was a sufficient maintenance, and still paid by her husband; and that she obtained credit thereon upon her own account, and on her own account made the promises declared on, as a feme sole, and not on the credit of her husband. On demurrer this replication &c. was held to be bad; for here the wife had only a temporary fund, pending a suit, to which an end may be put by the husband when he pleases, or by the court. It may be observed there were no articles of separation, and no covenants. 8. So in the case of Marshall v. Rutton, her support was Marshall v. temporary; for the wife had it in her power to put an end to Rutton. the separation whenever she pleased, and in fact there was no legal separate maintenance, for want of trustees; the agree ment was only between the husband and wife. In citing this case, this circumstance, a want of a permanent fund or maintenance, legally secured to the wife, has not been sufficiently attended to. And there is no objection to imprisoning her alone, when the separation is so complete, and he has so renounced his marital rights, as not to be affected by it; and then Lord Kenyon's idea her separate imprisonment is a divorce, does not apply; this idea, as also Lawrence's, seems to countenance Reeve's principle, as to the abandonment of marital rights. 9. So that on the whole, though there have been several dictums contrary to the decision in the case of Corbett v. Poelnitz, yet there has been no decision directly contrary to it, er CH. 19. Art. 16. 3 T. R. 627, Milner v. Milner. Imp. M. P. 248. 26 Geo. 3, Hudson v. Birst. Bul. N. P. 136, Nor that can materially shake it. In Marshall v. Rutton, the wife had no remedy for her maintenance, as she could not sue her husband. 10. If a feme covert be sued as a feme sole, she must plead this in abatement; and if she do not plead it in abatement, she cannot afterwards avail herself of the objection, but must be liable to execution. 1 New. Rep. 80, Farrar v. Granard, wife not liable, no separate maintenance and her husband only in Ireland. ART. 16. Marriage in fact, or by acknowledgment, binds the husband in regard to her contracts for necessaries. § 1. As if a man cohabits with a woman, and allows her to assume his name, and passes her to the world for his wife, though in fact he is not married to her, yet he is liable to her contracts for necessaries, because by his conduct he has admitted her to be his wife, and has encouraged third persons to give her credit accordingly; and here when sued for goods furnished to her, he is estopped to deny that she is his wife. 2. It is laid down in several books, that the plea, never coupled in lawful marriage, is good only in dower and appeal, wood v. Ste- and is no plea in assumpsit for a debt contracted by the wife, only the fact of marriage is in issue. venson. 3 Salk. 64. Salk. 119, case post, Haydon v. Gould. 4 Burr. 2057, Morris v. Miller. Salk. 437, Allen & ux. v. Grey. 8 Mod. 22, §3. But seven years cohabitation, without a legal marriage, does not entitle the husband to administration on his wife's estate; and there are other cases in which legal marriages must be proved, though it is true that never coupled in lawful marriage, is no plea in this action of assumpsit, for it is enough he lives with her as his wife. 4. In an action for criminal conversation with the plt's. wife, an actual marriage must be proved. In this case ac- . knowledgment, cohabitation, or reputation, is not sufficient. § 5. On a marriage in fact, the husband and wife may sue for her debt, and never coupled in lawful marriage is a bad plea; this plea admits a marriage, but denies its legality; "whereas a marriage in fact is sufficient, and whether legal or not, is not material;" but in pauper cases the legality of the marriage may be questioned. See Poor. 6. In this case it was held, that after an agreement beLister's Case. tween husband and wife to live separate, he cannot compel her to live with him, nor has he, by law, any power to confine her. § 7. The wife of a person who has been absent six or seven years in the East Indies, cannot be considered or sued as a feme sole, though she for several years carried on business in trade as a feme sole. 1 Mass. R. 116, Com monwealth v. Cullins. Cro. El. 466. § 8. When a term for years is granted to a trustee for the use of a feme sole, and she marries A, he has only the usufruct during the marriage. |