band; that the plaintiff gave no credit to the husband, but contracted with her as a feme sole; rejoinder, that the husband had resided with the defendant in this country up to a certain period, when he went abroad; held, that judgment should be for the defendant, on the replication, for it did not allege that the husband had never been in this country; and the rejoinder alleged that fact.a

The result of all the dicta and decisions since Marshall v. *1104 *Rutton is, that a feme covert cannot sue or be sued as a feme Result of sole during the coverture, unless on contracts made by her the autho- whilst her husband is under sentence of transportation, or un

rities.

less 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 recognised 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.

b

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 bond. She cannot make an attorney. 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 equity. 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. And if a woman married de facto to one whom she

Stretton v. Busnach, 1 Bing. N. C. 139. (27 Eng. C. L. 335.) __ Tindal, C. J., intimated that since Marshall v. Rutton, De Gaillon v. Aigle, 1 B. & P. 757, was not law. See Duchess of Mazarine's Case, ante, 1101.

Ante, 1101.

Hopewell v. De Pinna, 2 Camp. Doe d. Jesson, 6 East, 80. Roe v. Hasland, 1 Bl. 404. The sentence of a court of competent jurisdiction annulling the marriage ab initio, entirely removes the incapacity of the wife, and renders her responsible, as if the marriage had never taken place. Anstey v. Manners, 1 Gow. 10. (5 Eng. C. L. 441.)

Lake v. Ruffle, 6 N. & M. 684. 2 H. & W. 203.
Robert v. Pierson, 2 Wils. 3.
Faithorne v. Blaquire, 6 M. & S. 73.

Murray v. Barlee, 4 Sim. 82.

'Oulds v. Sansom, 3 Taunt. 261.

Master v. Fuller, 1 Ves. jun. 513.

(1) (Dorrance v. Scott, 3 Wharton, 309.)

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 cpvenanted 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.

not liable

Ir a married woman be arrested on mesne process, the court A married will discharge her on filing common bail, unless she has been woman is guilty of fraud or deception, by holding herself out as a single to be arwoman, even though her husband had absconded, and the rested for debt was incurred by her while feme sole. The bail bond will debt if she *be given up to be cancelled, if her coverture is not disputed; has not innor will her subsequently giving a bill of exchange to the curred it plaintiff in part payment vary the rule; and if the plaintiff fraud.

a Anstie v. Mason, 3 Anst. 833.

b Smith v. The Sheriff of Middlesex, 15 East, 607.

through

Ex parte Gill, 1 Bing. N. C. 168. (27 Eng. C. L. 344.) See ex parte Thomas, 4 M. & Scott, 331, (30 Eng. C. L. 350,) and ex parte Shuttleworth, id. n., for the circumstances under which the court will dispense with the concurrence of the husband in a conveyance of wife's land.

d Check v. Bootle, 4 M. & Scott, 460. (30 Eng. C. L. 354.) * Roberts v. Anderson, 2 Bl. 720. Collins v. Rowed, 1 N. R. 54. 6 T. R. 451. Wardel v. Gouch, 7 East, 582. Holloway v. Lee, 2 Eng. C. L. 415.) Pritchett v. Cross, 2 H. Bl. 17.

Crookes v. Fry, 1 B. & A. 165. Collins v. Rowed, 1 N. R. 54.

v. Mason, 1 Taunt. 254.

Waters v. Smith,
Moore, 211. (4

But see Robarts

Freame v. Mitford, 3 Tyr. 139. 1 C. & M. 54. Samwell v. Jenkins, 6 Moore, 500. (17 Eng. C. L. 53.)

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.

*1107

knows that she is a married woman, it makes no difference that she represented that she had separate property." And where the plaintiff knowingly arrested a married woman, the court ordered him to pay the costs of the motion for her discharge. The court will discharge her, even though she be separated from her husband by a divorce à mensa et thoro.

But the court will not discharge a married woman on common appearance, unless her coverture be open and notorious;d 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. 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. 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.h

*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 inquiry. 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.k

a Slater v. Mills, 7 Bing. 606. (20 Eng. C. L. 256.) 5 M. & P. 603. b Wilson v. Serres, 3 Taunt. 307.

e

Hookham v. Chambers, 6 Moore, 265. 3 B. & B. 92. (7 Eng. C. L. 361.) Pearson v. Meadow, 2 Bl. 903. Anon. Lofft. 395.

Harvey v. Cooke, 5 B. & A. 747. (7 Eng. C. L. 250.) But see Gervas v. Bolting, 1 Price, P, C. 117.

Jones v. Lewis, 7 Taunt. 55. (2 Eng. L. L. 23.) 2 Marsh. 385.

Luden v. Justice, 1 Bing. 344. (8 Eng. C. L. 340.) 8 Moore, 346. Simon v. Winnington, 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. (16 Eng. C. L. 167.) Taylor v. Whittaker, 2 D. & R. 225. (16 Eng. C. L. 81.) "It has been the constant practice in this court, where the husband and wife are both arrested on mesne process, that the wife shall be discharged, but the husband cannot be discharged without putting in bail for both." Per Bayley, J., 1 B. & A. 165. See Coulson v. Scott, 1 Chitty, 75. (18 Eng. C. L. 33.)

Hoad v. Mathews, 2 Dow. 149. Tidd 1026, 9th ed., recognised by Bayley, J., in Sparks v. Bell. 8 B. & C. 3. (15 Eng. C. L. 145.) Moses v. Richardson, Id. 421.

Wilkins v. Wetherill, 3 B. & P. 220.

and wife

1.-Joinder of husband and wife in actions ex contractu.] When the In all real actions for the lands of the wife the husband and husband wife must join. So for rent due before coverture upon a lease must join for life or years. So for injuries done to the inheritance, as in an acby pulling down houses, &c., or where an action of covenant tion. is necessary to compel further assurance upon a conveyance to husband and wife. So they must join in an action for debts, &c., which were due to the wife before marriage, and which continue unaltered. But if the party give a bond to the husband and wife, in respect of such debt, or if in respect of some *new consideration, as forbearance, &c., he make a written or *1108 parol promise to the husband and wife, they may join, or the husband may sue alone upon such new contract. (1) But if the bond or promise be given to the husband alone, he alone should sue. 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

* 1 Bulstr. 21. Com. Dig. Baron and Feme, 5. b 1 Roll. 348.

• Middlemore v. Goodale, Cro. Car. 508. a Hardy v. Robinson, 1 Keb. 440. Milner v. Milnes, 3 T. R. 627. Rumsey v. George, 1 M. & S. 176.

Ankerstein v. Clarke, 4 T. R. 616. 1 Ch. Pl. 29. Per Lord Ellenborough, 1 M. & S. 180.

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, (22 Eng. C. L. 119,) 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.

(1) (When a husband takes a joint obligation to himself and wife for a debt due to himself alone, it is a gift to the wife, who takes as a joint purchaser and by survivorship and in her own right, unless the proceeds should be wanted on a deficiency of assets for the payment of creditors or perhaps legatees. Gibson v. Todd, 1 Rawle, 455.)

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." "In the case of a chose in action, he cannot dispose of it to his own use, but a bill of exchange is transferable by law. The marriage vested that right of transfer in the husband, and upon that the right of action is consequent."'b

The husband must join his wife in all actions upon bonds and other personal contracts made with the wife before marriage,(1) 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. *1109 But for rent or *other cause of action accruing during the marriage on a lease or demise or other contract relating to the land or other real property of the wife, whether such contract were made before or during the coverture, the husband and wife may join, or he may sue alone.(2) Husband and wife seised of land in right of the wife, may join in trespass for breaking and entering a close and consuming and carrying away the grass there found, because the grass is the natural produce of the earth, and continually goes with the land."(3) In actions for a profit, &c., accruing during coverture, in right of the real estate of the wife, they may both join, or the husband may sue alone as in debt for not setting out tithes payable to the wife.f

meritori

Where the It may be laid down as a general rule, that wherever the wife is the action would survive to the wife in case the husband died, she may be joined. In debt on bond made to the wife during coof action, verture; or in assumpsit on a promissory note given to the she may wife or to the husband and wife during coverture; the husband be joined and wife may join, or the husband may sue alone.(4) So,

ous cause

Per Doddridge, J., in Brett v. Cumberland, 3 Bulstr. 164, to which Coke, J., assented. Recognised by Holroyd, J., in 1 B. & A. 223.

Per Holroyd, J., Id.

1 Ch. Pl. 29. Com. Dig. Bar. and Feme. V. Lord Kenyon, in Milner v. Milnes, 3 T. R. 631. Roll. Ab. 347. S. N. P. 282. B. N. P. 179.

Bac. Ab. Bar. and Feme, K. Per
Carr v. Taylor, 10 Ves. 578. 1

Com. Dig. Bar. and Feme (I. & Y.) Aleberry v. Walby, 1 Stra. 229. 1 Ch. Pl. 31. Dunstan v. Burweld, i Wils. 224. Beaver v. Lane, 2 Mod. 217. Bro. Baron and Feme, pl. 23.

Willey v. Hanksworth, S. N. P. 285, cited 2 Wils. 424. Cro. Eliz. 96.

'Com. Dig. Baron and Feme, X. Brookes v. Sherman, Cro. Eliz. 413.

Dunstan v. Burweld, 1 Wils. 224. Per North, C. J., in Frosdyke v. Sterling, 1 Freem. 236.

Howell v. Maine, 3 Lev. 403. Per curiam, Stra. 230.

¡ Philliskirk v. Pluckwell, 2 M. & S. 393.

(1) (Moore v. Earle, 13 Wend. 271.)

(2) (The lessee in such action is entitled to set off a demand against the husband alone, although the suit be in the names of both husband and wife. Ferguson v. Lothrop, 15 Wend. 625.)

(3) (An action of trespass for cutting trees on land held by husband and wife in right of the wife, may be brought by the husband alone, or by the husband and wife jointly at his election. Allen v. Kingsbury, 16 Pick. 235.)

(4) (It seems to be the better opinion, that a chose in action accruing to the wife during