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ton Aug.

mer.

14. But if the husband so ill treat his wife as to make it CH. 19. proper for her to leave him, he is bound. As where assumpsit Art. 8. was brought against the executor of the husband, for about three years board of his wife, by her mother, the plt., in his Mass. S. J. life time. It was proved, that Armer and his wife lived happi- Court, Bosly together seven or eight years in Boston, and both employed 1796, Brathemselves in making shirts; that about 1791 he began to be dish v. Huse. intemperate, and she lost her health, became nervous, and at ex'r. of Artimes a little disordered in mind; that they began to differ, and he several times used her ill, beat her, &c., when she left his house, and went to her brother's-in-law, and sometimes to her mother's; that she returned to his house several times, on his solicitations, but the last time she refused to return, and lived with her mother about three years, and until her death. He asked her to return, and said he would use her well; but she declined, and her mother discouraged her returning, and he told the mother that he would not pay any board for his wife; the wife however continued with her mother, who supported her, and charged her board, part $2, and part $3 a week.

Judgment for the plt. for $350, the price charged; this action being against the executor of the husband, the wife's deposition was admitted. The court recognized the general doctrine of giving credit, and added, that if a man do not actually turn his wife out of doors, yet if he beat her, and treat her in such a manner as to make it necessary for her to leave him, and seek her support in another place, he shall be held to pay &c. But if a tradesman furnish goods to the wife, it is a question of fact if he give credit to her or to her busband; if to her, he is not liable, though she lives with him, and he sees her in possession of the goods. 5 Taun. R. 356, 358, Bently v. Griffin.

Case v.

King-
Lotit 782.

15. In assumpsit against the husband for the lodging of 12 Mod. 372, his wife; the evidence only was, "that he cohabited with her, and owned her as his wife. Held, this was sufficient to charge him; but that he might discharge himself by giving elopement in evidence; for they that trust a wife who has eloped do it at their peril.

What is assent to her purchases. The wife bought silks for her apparel, and the husband paid for making them up, this was sufficient evidence of assent.

Dyer 234.

344.

§ 16. If one man take another's wife and clothe her, know- Pow. on Con ing she is his wife, no action lies against her husband, the law 256-3 Cro. intends it a gift to the wife. So if I deliver stuff to her to make apparel without his privity or allowance, no action lies for me, it is a gift in contemplation of law. This is a general principle, but it must have its exceptions; as where a husband,

CH. 19.
Art. 10.

Moseley's R. 126.-1 H., Bl. 345.

Salk. 118,
Todd v.
Stoakes.-
Im. 51, 249.
Ld. Raym.

444.

without cause turns away his wife, and she, in distress, applies to a friend, and he furnishes her suitable and necessary clothing, he must recover against her husband.

17. And if he be bound to keep the peace towards her, not to maintain her is a breach of his recognizance. At common law, a wife could not convey her lands but by fine or recovery; our law is different.

ART. 9. Where they live separate. §1. When it is commonly known they have separated, and she has a separate maintenance, the husband is not chargeable. Personal notice is not necessary, it is enough it be known they live separate, where their home is, not where she is trusted. When they separate 12 Mod. 245. -1 Esp. 124, by consent, and he secures her an allowance, it is, that he be 125, Ramsden not charged any more for her, but he is liable if he neglect to pay her separate maintenance. 5 Bos. & P. 148, Nurse v. Craig; 8 Johns. R. 72, 73, Baker v. Barnes. But how far she can be sued, see Post.

v. Ambrose.

1 Stra. 127, Harris v. Collins.-Bul. N P. 136.

1 H. Bl. 344, 351, Compton v. Colli

son.

Reeve's D.R.

152.

8 T. R. 545, 547, Marshall

1 Bin. 582

§ 2. But if the debt be contracted in London so soon after the separation, as that it cannot be known there, he will be liable, and Buller, Espinasse, and some others say, that if the action be brought for necessaries, or the maintenance of the wife living thus separate, it should not be laid as furnished to him, but the special matter must be stated, otherwise it will be no bar to a special action for her maintenance, and in this case 335, held, where he has renounced his marital rights and to the usufruct of her estate, she can convey it by deed without him, living separate from him by articles, as no right of his can be infringed.

ART. 10. Her separate liability. $1. In Lord Mansfield's . Rutton A. time, the law as to her liability, seemed to be changed; as in D. 1800, and Corbett v. Poelnitz, and some other cases; but in this case of cited Chitty Marshall v. Rutton, since, and in the year 1800, the old law 23, 24.was thought to be restored. In this case it was held, by all 1 Ves. jr. 529. the judges of England, that a feme covert cannot contract and See this point be sued as a feme sole, even though she lives separate from her husband, and have a separate maintenance secured to her by deed; and the general principle is, that she cannot be separately liable, but where he is civilly dead, but as her separate maintenance in fact secured to her, is in order that he may be exempted from her maintenance, he is not liable. See

considered

above.

11 East. 301.

1 Esp. 124, 125, cites Corbett v. Poelnitz,

art. 15.

§ 2. It is laid down by Espinasse thus: "Where the husband and wife part by consent, and she has a separate maintenance from him, she shall in all cases be subject to her own 1 T. R. 5, 10. debts." In Corbett v. Poelnitz it is held, she may contract -Lofft 134- and be sued as a feme sole, in an action against a second husAgreement

in writing, to live separate, is valid, 8 Johns. R. 72.—So if transported.--1 T. R. 5, 10.— 3 Burr. A. D. 1785.—2 Esp.—1 Bos. & P 357.-2 do. 226, 227.—2 Br. Ch. R. 90.

band and wife, for a debt she contracted while she so lived separate from her first husband, Percy. The declaration stated the special matter; plea, the general issue, and on argument, judgment was for the plt. who had become her surety.

CH. 19.

Art. 10.

Peacock v.

Dubois v.

3. Equity views her as sole, as to her separate property. Pow.on Con. In Corbett's case, Lord Mansfield and the court stated the 77, 110, 63, general rule, that "a married woman can have no property Monk, a. 22, real or personal;" her contracts are entirely and universally s. 14, 15, &c. -2 Vern.613, void; for her contracts even for necessaries are the contracts of her husband; she cannot be sued or taken in execution. Hole.Then the exceptions to this rule are, as where the husband is 2 W. Bl. 1195, in exile, or has abjured the realm; and credit has been given Schutz. to the wife alone. So in the case of transportation, though temporary, because she acts as a single woman and gains credit as such. So if the husband resides abroad, his wife is liable to be sued. 1 Bos. & P. 357.

Lean v.

Com. D. 70. Or if he found. Pr. Ch.328, s

cannot be

Bell v. Hyde. -2 Esp. R. 554, 6 587.—

Art. 14, 15,

s. 10.-4 D. &

Shaw.

Moore 851.2 Vern. 104.

-11 East

§ 4. "In this ancient law there was no idea of a separate 2 maintenance; but when it was established what said the courts? That the husband shall not be liable even for necessaries," and this, because justice and convenience required it. And the court clearly held, that if lady Percy was liable, her second husband was liable. Lord Mansfield further, in this case, stated the question to be, "whether a woman married, but living separate from her husband by agreement, having a large & E. 361, separate maintenance settled on her, continuing notoriously to Candell v. live as a single woman, contracting and getting credit as such, P. and the husband not being liable, shall be sued as a feme sole," 93, Beard v. and he held that she might be, and thought it just that it should be Webb.so; and also, that the case was determined by two, then late cases, Ringstead v. Lady Lanesborough, and Barwell v. Brooks. In Corbett's case, Lawrence J. truly observed, "that 303. the husband had no right to the person of his wife afterwards." § 5. In this case of Ringstead &c. assumpsit was brought Ringstead v. for goods sold and delivered; plea, coverture. Replication, borough, 23 Lady Lanes"that she lived separate from her husband at the time of mak- Geo. 3, B. R. ing the said promises, and that she had a large and sufficient -Cooke's maintenance secured to her by deed;" to this there was a 24, A. D. special demurrer. After two arguments, the replication was 1783. adjudged good, and judgment for the plt. Lord Lanesborough Reeve's D. R. lived in Ireland. Judge Reeve holds her suable merely on the principle, her husband has renounced his marital rights, not on the ground of separate maintenance; as if so, that would be the measure of her liability.

Bank. Laws,

§ 6. In this action, Barwell v. Brooks, also assumpsit against Barwell. the wife for goods sold and delivered on her separate promise, Brooks, and a like division was made, that she was liable to be sued alone for the goods delivered to her, though her husband re- Bank. Laws,

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24 Geo. 3. B. R.-Cooke's

28, A.D.1784.

CH. 19. sided in England. In Marshall v. Rutton, Reeve admits the Art. 12. 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.

2 P. W. 144, Norton v.

Turrill

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,

116.

ART. 11. His being an alien enemy, the effect, &c. as to this

action.

Durly v. Mas- 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. Bl. 1197.

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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 Lofft 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 &
Feme.-

1 H. Bl. 346.

Mass. S. J.
Court, Nov.
Term, 1800,
Wheeler v.
Wheeler,
1 Mass. R.

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 mainte19, 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 W. Bl. 1079.

ART. 14. Where she elopes-she is not liable for goods A. D. 1776. furnished her, though her husband is not liable. As where she Hatchell v. was sued as a feme sole, for a carriage furnished her by the plt. Baddeleyduring 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 ". Kitchin.1799, were different; as where her husband lived abroad, it Evid. 149.

See 1 Phil.

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