band being a foreigner residing abroad, is not a In a word, the person who contracts with a married woman, as far as any right in a court of law is concerned, relies upon her bare word; for she is not recognised there as a person capable of binding herself by any contract whatever, save only in a few cases, which I will now specify. husband is the wife may The first of these is where her husband is civilly Where the dead for instance, where he is under sentence of civilly dead, transportation. In such a case, to prevent her contract. from contracting, would be to deprive her too of all civil rights, since the husband, being civilly dead, is no longer capable of contracting for her (g). This is a very old doctrine, having been first established in the 2nd Hen. IV. In the Year Book of Lady Belknap's case. which year we find that Belknap, the Lord High Treasurer, was banished to Gascony till he should obtain the King's favour, and his wife, Lady Belknap, brought an action in the Common Pleas, which seems to have been the first instance of such a proceeding by a married woman; for it struck (e) Stretton v. Busnach, 1 Bing. N. C. 139. (f) Williamson v. Dawes, 9 Bing. 292. (g) Ex parte Franks, 7 Bing. 762; Marsh v. Hutchinson, 2 B. & P. 226. Wives may sue by the custom of the city of London. the lawyers of those days with so much surprise that they commemorated it by a Latin distich, which Lord Coke has thought it worth his while to preserve in the 1st Institute. It is in the old monkish style, and is not only in Hexameter "Ecce modo mirum, quod fœmina fert breve Regis, Another case is where the husband is a foreigner belonging to a country at war with Great Britain. In such case, as he cannot lawfully contract or sue in England, it seems to be admitted that his wife may do so as if she were unmarried (h). By the custom of the city of London, a married woman is allowed to be a trader in her individual capacity, and may sue alone in the city courts on contracts made by her in the course of such trade; but it would seem that, even in this case, if she were to bring an action in the Courts at Westminster, it would be necessary to make her husband a party to it. This subject is learnedly discussed in Beard v. Webb (i). Even if a married woman has been divorced a mensa et thoro, which, before the stat. 20 & 21 Vict. c. 85, s. 7, legalised the separation of the parties, but left the marriage bond unsevered, the (h) Barden v. Keverberg, 2 M. & W. 61; see De Wahl v. Branne, 25 L. J. (Ex.) 343 ; 1 H. & N. 178. same rule applied. Now, however, instead of a divorce a mensa et thoro, a decree for a judicial separation is pronounced in those cases in which the limited divorce before-mentioned was obtainable, and has the same consequences; but in addition to these the wife is, while the separation continues, to be considered a feme sole, and may contract as such. Upon such contracts her husband is not liable; unless upon the separation alimony shall have been decreed to her, in which case, if it be not duly paid, he remains liable for necessaries supplied for her use (s. 26). Moreover, a wife deserted by her husband may obtain from the Court for Divorce and Matrimonial Causes, in the Metropolitan District, from a Police Magistrate, or in the country from two Justices, an order to protect any property which, after her desertion, she may acquire by her own industry, or may become possessed of; and she is during the continuance of the order, and during her desertion, in the like position in regard to property and contracts, suing and being sued, as if she had obtained a decree of judicial separation (s. 21). may avail contracts wife during Now, so far with regard to a married woman's The husband right to bind herself by contracts. But, with re- himself of gard to her power of taking advantage of contracts made by his made by other persons with her, the rule is some- coverture. what different; for it has been decided that, if a contract be made with the wife, on good consideration, during the marriage, the husband may, if he please, take advantage of it, and recover in an So also of bonds and notes made payable to her. action on it, in which action he may join his wife as a co-plaintiff. And if he die, without taking any such step, the right to sue upon it will survive to the wife (k). One of the earliest authorities on this subject is Brashford v. Buckingham (1), where the wife had undertaken to cure a wound for the sum of ten pounds, which the patient was ungrateful enough not to pay; and after she and her husband had recovered judgment in an action of debt, a writ of error was brought in the Exchequer Chamber on the ground that a married woman could not sue. But the Court said, that, being grounded on a promise made to the wife, upon a matter arising upon her skill, and on a performance to be made to the wife, she is the cause of the action, and so the action brought in both their names is well enough, and such action shall survive to the wife. Where fore the judgment was affirmed. On the same principle, if a bond be made payable to her, she and her husband may sue upon it (m). So if a promissory note be made payable to her. Is not the wife, said Lord Ellenborough, the meritorious cause of the action; she is the donee of the note, and it is acquired through her, and the note is a thing (k) So after divorce, Wells v. Malbon, 31 L. J. (Ch.) 344. (Cro. Jac. 77, confirmed in error, Id. 205. (m) Day v. Padrone, 2 M. & Sel. 396, n. (b). See John son v. Lucus, 22 L. J. (Q. B.) 174; 1 E. & B. 659; Dalton v. Midland Counties Ry., 22 L. J. (C. P.) 177; 13 C. B. 474. which of itself imports a consideration (n). There is a very curious case of Richards v. Richards (0), in which a married woman took a note from her own husband and two other persons. And it was held, that, though no one could have sued on it in his lifetime, yet, that, after his death, she might sue the two surviving makers. A case bearing some analogy to the last, and involving the same principle, afterwards came before the Court of Exchequer Chamber. This is the case of Wills v. Nurse (p), and is so instructive, that, although a little complicated in its facts, it is desirable to be noticed here. In this case, an agreement between a man and his wife and C. of the one part, and D. of the other part, recited that the husband and wife and C. had sued one Lang, and obtained a cognovit from him; that Wills had given a bail bond for him, which was forfeited; whereupon Wills requested the husband and wife and C. to let Lang be at large, and not proceed against the bail, on his guaranteeing the security of Lang's person if the debt were not paid on a certain day, on which day he would render Lang or pay the money. The Court held that the wife was entitled to join, for the wife, they said, was, as to part of the consideration, the meritorious cause of action. The cognovit was given in an action to which she was a party; the promise to forbear was, indeed, in point (n) Philliskirk v. Pluckwell, 2 M. & Sel. 393. (0) 2 B. & Ad. 447. |