Result of the authorities. Rutton is, that a feme covert cannot sue or be sued as a feme sole during the coverture, unless on contracts made by her whilst her husband is under sentence of transportation, or unless the husband be an alien who has never been in this country; and it is not quite clear that in the latter case, she would now be considered as a feme sole, where the absence of the husband would be voluntary, although it was so decided in the Duchess of Mazarine's case, which was previous to Marshall v. Rutton, but which was since recognized by Lord Ellenborough in Kay v. the Duchess of Pienne. But if the husband be prevented from coming to this country, as in the instance of his being an alien enemy, the wife will have all the privileges, and be subject to all the liabilities, of a feme sole. Where the husband has been abroad and not heard of for seven years, it will be presumed that he is dead, and the wife will be considered as a feme sole. But a replication to a plea of coverture, that the plaintiff's husband had been abroad for seven years, and was not known to the plaintiff to be living within that time, has been held to be bad. A judgment confessed to a feme covert is void, and so is her bondd, she cannot make an attorney o. A warrant of attorney executed by her is void, even though she be divorced à mensa et thoro. But an agreement by a wife without the knowledge of her husband to pay additional rent out of her separate property, is good in equitys. Where a married woman, having separate property, living apart from her husband, employed the plaintiffs as her solicitors, and promised that she would pay their bills; held, that the property was liable to pay the bills h. And if a woman married de facto to one whom she knows to have another wife, executes a deed as his wife jointly with him, she is bound as feme sole a. A tradesman supplying a married woman living apart from her husband with furniture upon hire, does not thereby divest himself of the present right of property in such goods, inasmuch as the married woman was incapable of acquiring it by contract; for a contract, to be valid, must be binding on both parties, and as it could not be binding on the wife, it is void, and the tradesman may recover the goods in an action of trover against the sheriff, who seized them in execution for the husband's debt b. Under 3 & 4 W. IV. c. 74. ss. 77-91. a feme covert, when her husband has absconded, and has not been heard of for some time, may pass a contingent interest in freehold property. When the acknowledgment of a party to a fine was taken before commissioners, who knew she was a married woman, and that her husband did not concur; but the parties were living separate under a deed by which the husband covenanted not to interfere with the wife's property, the court refused to revoke the fine, but left him to his common law remedy d. SECTION V. WIFE'S PRIVILEGE FROM Arrest. woman is not liable If a married woman be arrested on mesne process, the court A married will discharge her on filing common bail, unless she has been guilty of fraud or deception, by holding herself out as a single woman e, even though her husband had absconded, and the debt was incurred by her while feme sole 1. The bail bond will War • Roberts v. Anderson, 2 Bl. 720. Hollo- f Crookes v. Fry, 1 B. & A. 165. Collins v. Rowed, 1 N. R. 54. But see Robarts v. Mason, 1 Taunt. 254. to be ar rested for debt if she has not in curred it through fraud. be given up to be cancelled, if her coverture is not disputed 3; nor will her subsequently giving a bill of exchange to the plaintiff in part payment vary the rule b; and if the plaintiff knows that she is a married woman, it makes no difference that she represented that she had separate property c. And where the plaintiff knowingly arrested a married woman, the court ordered him to pay the costs of the motion for her discharged. The court will discharge her, even though she be separated from her husband by a divorce à mensa et thoro e. But the court will not discharge a married woman on common appearance, unless her coverture be open and notorious f; or unless the fact of her marriage be positively stated in the affidavit. Where it was sworn that she was married, “as by the certificate annexed will appear," it was held insufficient §. Where a woman was arrested as drawer of a bill of exchange, at the suit of the indorsee, the court refused to discharge her on the affidavit of a third person, that she was a married woman h. If a married woman obtains credit by fraud, or by representing herself as a single woman, the court will not discharge her on motion, but will leave her to her plea of coverture i. If she be arrested along with her husband, on mesne process, she will be discharged on motion, but the husband will not be liberated without putting in bail for both *. a Freame v. Mitford, 3 Tyr. 139. 1 C. & M. 54. Samwell r. Jenkins, 6 Moore, 500. b Id. But if she be arrested as the drawer of a bill of exchange, the court will not discharge her on motion. Walsh v. Gibbs, 4 Dowl. 683. • Slater v. Mills, 7 Bing. 606. 5 M. & P. 603. d Wilson v. Serres, 3 Taunt. 307. 2 Marsh. 385. i Luden v. Justice, 1 Bing. 344. 8 Moore, 346. Simon v. Winning. ton, 1 Dowl. 16. Partridge v. Clarke, 5 T. R. 194. Pannell v. Taylor, 1 Turr. & Russ. 106. Ex parte Watson, 16 Ves. 266. But see Collins v. Rowed, 1 N. R. 54. * Cattarns v. Player, 3 D. & R. 247. Taylor v. Whittaker, 2 D. & R. 225. "It has been the constant practice in this court, where the Hookhamr.Chambers, 6 Moore, husband and wife are both arrested 265. 3 B. & B. 22. f Pearson r. Meadow, 2 Bl. 903. Anon. Lofft. 395. Harvey t. Cooke, 5 B. & A. 747. But see Gervas v. Bolting, 1 Price P. C. 117. Jones r. Lewis, 7 Taunt. 55. on mesne process, that the wife shall be discharged, but the husband can. not be discharged without putting in bail for both." Per Bayley, J., 1 B. & A. 165. See Coulson Scott, 1 Chitt. 75. In an action against husband and wife, they may both be taken in execution; and where the wife is taken in execution, she shall not be discharged unless it appear that she has no separate property out of which the demand can be satisfied, or that there is fraud or collusion between the plaintiff and her husband, to keep her in prison. A married woman being sued as a feme sole suffered judgment by default, and being taken in execution, the court refused to discharge her on motion, but left her to her writ of error, as she ought not to have suffered the plaintiff to incur the expense of executing a writ of enquiry. If a feme covert be taken in execution, under a warrant of attorney, given by her as a feme sole, the court will not discharge her on a summary application". 1.-Joinder of husband and wife in actions ex contractu.] In all When the real actions for the lands of the wife the husband and wife must join d. So for rent due before coverture upon a lease for Hoad r. Mathews, 2 Dow. 149. Tidd 1026, 9th ed., recognized by Bayley, J., in Sparks v. Bell, 8 B. & C. 3. Moses v. Richardson, Id. 421. Wilkins v. Wetherill, 3 B. & P. 220. 4 1 Bulstr. 21. Com. Dig. Baron and Feme, 5. 1 Roll. 348. f Middlemore v. Goodale, Cro. Hardy r. Robinson, 1 Keb. 440. husband and wife must join tion. in an ac new consideration, as forbearance, &c., he make a written or parol promise to the husband and wife, they may join, or the husband may sue alone upon such new contract". But if the bond or promise be given to the husband alone, he alone should sue b. Where a bill of exchange was payable to a feme sole, who intermarried before the same was due, it was held that the husband might sue in his own name, without joining his wife, although she had not indorsed the bill; the marriage operating as an indorsement. "For that which the husband may discharge alone, and of which he may make disposition to his own use, for the recovery of this, he may well have an action in his own name, without the wife.” d action, he cannot dispose of it to exchange is transferable by law. right of transfer in the husband, action is consequent." e "In the case of a chose in his own use, but a bill of The marriage vested that and upon that the right of The husband must join his wife in all actions upon bonds and other personal contracts made with the wife before marriage, whether the breach were before or during the coverture; and also for rent or any other cause of action accruing before the marriage in respect of the real estate of the wife f. But for rent or a Ankerstein v. Clarke, 4 T. R. 616. 1 Ch. Pl. 29. Per Lord Ellenborough, 1 M. & S. 180. b Yard v. Ellard, 1 Salk. 117. Carth. 463. Sid. 299. M'Neilage v. Holloway, 1 B. & A. 218. The grounds of this decision were, that a bill of exchange was a chattel personal, which vested absolutely in the husband by marriage, (the court observing that, if it were a chose in action, it would be necessary to join the wife.) But in Richards v. Richards, 2 B. & Ad. 453, the court held, that a promissory note was a chose in action. In Garsforth v. Bradley, Id. 2 Ves. 675. Lord Hardwicke says that, "where a chose in action comes to the wife, whether vesting before or after marriage, if the husband die in the lifetime of the wife, it will survive to the wife, with this distinction, that as to those which come during the coverture, the husband may for them bring an action in his own name, and may disagree to the interest of the wife, and that recovering in his own name is equal to reducing to possession." As the bill did not become due until after the marriage, in M'Neilage v. Holloway, perhaps that decision may be reconciled with the principle laid down by Lord Hardwicke, without holding a bill of exchange to be a personal chattel. Per Doddridge, J., in Brett t. Cumberland, 3 Bulstr. 164, to which Coke, J., assented. Recognized by Holroyd, J., in 1 B. & A. 223. Per Holroyd, J., Id. f1 Ch. Pl. 29. Com. Dig. Bar. and Feme, V. Bac. Ab. Bar. and |