her husband being abroad, apply only where he is civiliter mortuus), you are bound under it to make out that the husband was an alien, that he was resident abroad and never in this country, which facts are now admitted; and also that the defendant represented herself as a feme sole, or that the plaintiff dealt with her believing her to be a feme sole; and the same learned judge threw doubt upon the report of what Lord Ellenborough said in Kay v. Duchesse de Pienne. ( p)

§ 34. More recently the case of De Wahl v. Braune (9) came before the exchequer. The declaration was on an agree- De Wahl ment to purchase the interest of the plaintiff in the ben- v. Braune. efit of a lease and school for young ladies. Plea in abatement, plaintiff's coverture. Replication, that her husband was an alien, born in Russia, did not reside in this country at the commencement of the action, was never a subject of this country; that the cause of action accrued to plaintiff in England, while she was a subject of our lady the queen, residing here separate and apart from her husband; that defendant became liable to her as a single woman, and that before and at the time of the commencement of the suit war existed between Russia and this country, and that her husband resided in Russia, and adhered to the said enemies of our lady the queen. On demurrer, held that the wife could not sue as a feme sole; that her husband was not civiliter mortuus, and that the contract made during coverture was the husband's. In this case the action was by the wife, but the reasoning of the court would have been equally applicable if her condition had been reversed, and she had been defendant instead of plaintiff.

woman sole trader

in city of

London.

§ 35. The only remaining exception to the absolute incapacity of a married woman to bind herself as purchaser during Married coverture is one which arises under the custom of London, and is confined to the city of London. By that custom, feme covert may be a sole trader, and when so, she may sue and be sued in the city courts, in all matters arising out of her dealings in her trade in London. In the wellknown case of Beard v. Webb, (r) where Lord Eldon Webb. C. J. delivered the judgment of Cam. Scacc. reversing that of the king's bench, this custom is elaborately considered, in connection

(p) Barden v. Keverberg, 2 M. & W. 61. [See 1 Chitty Contr. (11th Am. ed.) 253-255.]

Beard v.

(9) 1 H. & N. 178, and 25 L. J. Ex.

343.

(r) 2 B. & P. 93.

Married

woman:

2. By statute.

Protection order.

with the general law on the subject of the wife's capacity to contract as a feme sole during marriage; and the custom is described in the pleadings as a custom "that where a feme covert of a husband useth any craft in the said city on her sole account, whereof her husband meddleth nothing, such a woman shall be charged as feme sole concerning everything that touched her craft." (8) § 36. But recent legislation has made considerable changes in these rules of the common law. By the 20 & 21 Vict. c. 85, s. 21, a wife "deserted by her husband" may obtain an order to protect her earnings and property, the effect of which order during its continuance is to place her “in the like position in all respects with regard to property and contracts as she would be under this act if she obtained a decree of judicial separation." And the effect of such a decree is stated by the 26th section to be that "the wife shall while so separated be considered as a feme sole for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding." Further provision is made by the 21 & 22 Vict. c. 108, ss. 8, 9, 10, for the protection of persons dealing with wives who have obtained the order above described. By the reProperty cent act, 33 & 34 Vict. c. 93 (married women's property act, 1870), the rights of married women to acquire property are greatly extended, and by the first section especially, her "wages and earnings acquired or gained in any employment, occupation, or trade in which she is engaged or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipt alone shall be a good discharge for such wages, earnings, money, and property.” (t)

act, 1870.

(s) [See 1 Chitty Contr. (11th Am. ed.) 255, and note (m).]

Statute changes in Massachusetts.

(t) [Changes similar to those stated in the text, and others even more extensive and important, in the principles and rules of the common law applicable to husband and wife, have been made by recent legislation in many of the American States. By Mass. Stat. 1869, c.

304, a married woman may make contracts for necessaries to be furnished to herself and family, and may sue and be sued thereon, in the same manner as if she were sole. See, also, Stat. 1874, c. 184; Gordon v. Dix, 106 Mass. 305; Labaree v. Colby, 99 Ib. 559. But ordinarily, if a married woman living with her husband purchases goods appropriate to common family use, of one who knows

women: 3.

§ 37. In equity, where a married woman has a separate estate, she is to a certain extent considered as a feme sole with Married respect to that property, and may so contract as to In equity. render it liable for the payment of her debts. In respect of her purchases, the law is, that if she, "having separate property, enters into a pecuniary engagement, whether by ordering goods or otherwise, which if she were a feme sole would constitute her a debtor, and in entering into such engagements she purports to contract, not for her husband but for herself, and on the credit of her separate estate, and it was so intended by her and so understood by the person with whom she is contracting, that constitutes an obligation for which the person with whom she contracts has the right to make her separate estate liable." (u)

she is married and so living with her husband, without any express agreement pledging her own credit, the natural as well as legal inference would be that she was buying on her husband's account and for the family use. Powers v. Russell, 26 Mich. 179. See Campbell v. White, 22 Ib. 178. By Mass. Statute 1879, c. 133, "The wearing apparel and articles of personal ornament of a married woman, and articles necessary for her personal use acquired by gift from her husband, not exceeding two thousand dollars in value, shall be and remain her sole and separate property," &c. See McGuire v. McGuire, 23 U. C. C. P. 123.

(u) Mrs. Matthewman's case, L. R. 3 Eq. 781. See, also, Shattock v. Shattock, L. R. 2 Eq. 182; 35 L. J. Ch. 509; 30 L. J. Ch. 298, and the conclusive set

tlement of the law in Picard v. Hine, L. R. 5 Ch. App. 274; [Johnson v. Gallagher, 3 De G., F. & J. 494, and note (2) and cases cited; Johnson v. Vail, 1 McCarter (N. J.), 423; Butler v. Cumpston, L. R. 7 Eq. 20, 21; Willard v. Eastham, 15 Gray, 328; Yale v. Dederer, 18 N. Y. 265; Manchester v. Sahler, 47 Barb. 155; Johnson v. Cummins, 1 C. E. Green (N. J.), 97; Hutchinson v. Underwood, 27 Texas, 255; La Touche v. La Touche, 3 H. & C. 576; Kelso v. Tabor, 52 Barb. 125; Wells v. Thorman, 37 Conn. 318; Craft v. Rolland, Ib. 491; Bogert v. Gulick, 65 Barb. 322; Lennox v. Eldred, Ib. 410; Gosman v. Cruger, 69 N. Y. 87; Yale v. Dederer, 68 Ib. 329; Bank of Watkins v. Miller, 63 Ib. 639; Conlin v. Cantrell, 64 Ib. 217; Downing v. O'Brien, 67 Barb. 582.]

press or

§ 38. THE assent of the parties to a sale need not be express. Assent, ex- It may be implied from their language, (a) or from implied. their conduct; (a1) may be signified by a nod or a gesture, or may even be inferred from silence in certain cases; as if a

(a) See a curious case of what one of the judges termed a "grumbling" assent, in Joyce v. Swan, 17 C. B. N. S. 84; [Evanson v. Parker, Ir. T. R. 283.]

(a1) [Barrett v. Rapelze, 4 U. C. Q. B.

(O. S.) 175; Brown v. Shaw, 1 Ont. App. 293; Pickrel v. Rose, 87 Ill. 263; The West. Un. Tel. Co. v. The Chicago & Paducah R. R. Co. 86 Ib. 246; Tilt v. La Salle Silk M'f'g Co. 5 Daly, 19.]

customer takes up wares off a tradesman's counter and carries them away, and nothing is said on either side, the law presumes an agreement of sale for the reasonable worth of the goods. (b)

§ 39. But the assent must, in order to constitute a valid contract, be mutual, and intended to bind both sides. (c) It must also coexist at the same moment of time. A mere