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sustainable. A creditor who has released his debt to the assignees may

be called to prove the act of bankruptcy, although the bankrupt is plaintiff in the action in which the commission is disputed. A release to the assignees only is sufficient without giving one to the bankrupth. A creditor who has sold his debt is a good witness to support the commission, by proving the petitioning creditor's debt; because his interest is gone; but the petitioning creditor is not a competent witness to shew that the commission was regularly sued out; for he enters into a bond to the chancellor, conditioned to establish the several facts upon which the validity of the commission depends, and to cause it to be effectually executed. He has therefore a direct interest in the question at issuek. But he is competent to prove the commission invalid!; and even to cut down his own debtm. A writ of supersedeas under the great seal, reciting the issuing of a commission on such a day, is prima facie evidence not only of the issuing of the commission, but also that it issued on that day". By stat. 1 and 2 W. 4. c. 56. s. 19, the chancellor, upon the reversal of any adjudication in bankruptcy, may order fiat to be annulled, and such order shall have all the force and effect of a writ of supersedeas.

g Koopes v. Chapman, Peake's N. 1 Anon. cited by Lord Ellenborough, P. C. 19. per Kenyon, C. J.

C. J. in Green v. Jones, and I Stark. h Ambrose v. Clendon, Ca. Temp. 40. S. P. Hardw. 267.

m Loyd v. Stretton, I Starkie, 40. Lord i Granger v. Furlong, 2 Bl. Rep. Ellenborough, C. J. 1273

n Gervis v. Grand Western Canal k Green v. Jones, 2 Campb. 411. Company, 5 M. and S. 76.

CHAP. VIII.

BARON AND FEME.

I. Of the Liability of the Husband,

1. In respect of Contracts made by the Wife be

fore Coverture.
2. In respect of Contracts made by the Wife dur-

ing Coverture.
3. In respect of the Children of the Wife by a

former Husband.
II. In what Cases a Feme Covert may be considered as

a Feme Sole.
III. Of Actions by Husband and Wife,

1. Where the Husband and Wife must join.
2. Where the Husband must sue alone.
3. Where the Husband and Wife may join, or

the Husband may sue alone, at his Elec

tion. IV. Of Actions against Husband and Wife.

I. Of the Liability of the Husband,

1. In respect of Contracts made by the Wife be

fore Coverture.
2. In respect of Contracts made by the Wife dur-

ing Coverture.
3. In respect of the Children of the Wife by a

former Husband.

1. In respect of Contracts made by the Wife before Coverture.—The husband is liable to the debts of his wife, contracted by her before the coverture, and the husband and

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wife may be sued for such debts during the coverturea; and in actions for the recovery of such debts, husband and wife must be joined. 7 T. R. 348. But if these debts are not recovered against the husband and wife, in the life-time of the wife, the husband cannot be charged for them either at lawb or in equity after the death of the wife. But if the wife survive the husband, an action may be maintained against her for the recovery of these debts. Woodman v. Chapman, 1 Campb. 189. Lord Ellenborough, C. J. A husband is liable for necessaries provided for his wife pending a suit in the Ecclesiastical Court and before alimony decreed, although a decree afterwards made direct the alimony to be paid from a date before the time when the necessaries were provided for the wife. Keegan v. Smith, 5 B. and C. 375.

The defendant's wifeç, before marriage, gave a promissory note for 50l. to the plaintiff, and afterwards married the defendant, who had with her personal estate to the amount of 7001. part whereof consisted of choses in action. The plaintiff did not during the coverture recover judgment upon the note against the husband and wife. The wife died about a year after the marriage. The defendant on her death took out letters of administration. Some of the choses in action had been received by the defendant as husband in the lifetime of the wife, the rest he took as her administrator. The plaintiff finding that the choses in action were not sufficient to satisfy his demand, filed a bill against the defendant, praying that the defendant should be made liable to answer his the plaintiff's demand, for so much as he had received out of the clear personal estate of the wife upon his marriage: Lord Talbot, Ch. said, that as on the one hand the husband was by law liable, during the coverture to all debts contracted by his wife, dum sola, whatever their amount might bed, although she did not bring him a portion of one shilling; so, on the other hand, it was certain, that if such debts were not recovered during the coverture, the husband, as such, was not chargeable, let the fortune he received with his wife be ever so great. He added, that the wife's choses in action were assets, and thereupon decreed an account of what the husband had received since his wife's death as her administrator, and that he should be liable for so much only; but as to any further demand against him, dismissed the bill.

2. In respect of Contracts made by the Wife during Coverture.-All the personal estate of which the wife is possessed a F. N. B. 120. F.

c Heard v. Stamford, 3 P. Wms. 409. b F. N. B. 121. C 1 Rol. Abr. 351. Ca. Temp. Talb. 173 S. C. (G.) pl. 2.

d F. N. B. 120. F.

1

in her own right, is by the marriage vested absolutely in the husbande. “The marriage is an absolute gift of all chattels personal in possession in her own right, whether the husband survive the wife or not; but if they be in action, as debts by obligation, contract or otherwise, the husband shall not have them unless he and his wife recover them. And of personal goods en autre droit as executrix or administratrix, &c. the marriage is no gift of them to the husband although he survive his wifef.” Notwithstanding the law thus divests the wife of all her personal property, she cannot bind her husband by any contracts, even for necessaries suitable to her degree and estate, without the assent of her husband either express or implied. “A feme covert generally cannot bind or charge her husband by any contract made by her without the authority or assent of her husband, precedent or subsequent, express, or implied.” Mr. J. Hyde's argument in Manby v. Scott, 1 Mod. 125.

During cohabitation the law will, from that circumstance, presume the assent of the husband to all contracts made by the wife for necessaries suitable to his degree and estate, and the misconduct, or even the adultery, of the wife, during that period, will not destroy this presumption. The same law is, where the husband deserts his wife, or turns her away without any reasonable ground (1), or compels her by ill usage or severity to leave him; in all which cases he gives the wife a general credit. This principle which tends to procure credit to the wife for necessaries suitable to the degree and estate of her husband, is anxiously adopted by the law on every possible occasion; and although in conformity with the ancient rule respecting dower, it has been decided, that where the wife elopes with an adulterer, the husband's assent to her contracts during the term of the elopement, cannot be im

e I Inst. 351. b. recognised in Checchi C. J. delivering judgment in Ri. v. Powell, 6 B. and C. 253.

chards v. Richards 2 B. & Ad. 453. f 1 Inst. 351, b. cited per Tenterden g Per Ld. Kenyon, C. J. in Hodges v.

Hodges, 1 Esp. N. P. C. 441.

(1) "If the husband turns his wife out of doors, though he advertises her, and cautions all persons not to trust her, or if he even gave particular notice to individuals not to give her credit, still he would be liable for necessaries furnished to her ; for the law has said, that where a man turns his wife out of doors, he sends with her credit for her reasonable expenses.” Per Ld. Kenyon, C. J. in Harris v. Morris, 4 Esp. N. P. C. 42. See also Boulton v. Prentice, post, p. where the court said the husband appears to be a wrongdoer, and therefore has not a right to prohibit any person.

In

plied; yet by analogy to the same ruleh, as soon as he receives her again, the presumption of law revives, and attaches upon the contracts made by her after the reconciliation. But, Ist, as cohabitation is evidence only of the husband's assenti, in a special verdict, that assent ought to be found; and 2dly, as cohabitation is presumptive evidence only of such assent, it may be rebutted by contrary evidence. In like mannerk, evidence that the articles purchased were consumed in the family of the husband, is only presumptive and not conclusive evidence of the husband's assent.

Having thus laid down the general positions respecting contracts made by the wife, I shall proceed to establish them by authorities, premising, that the relation of husband and wife is, in respect of the wife's contracts binding the husband, analogous to the relation of master and servant. deed, in contemplation of law, the wife is the servant of the husband. In F. N. B. 120 G. it is thus laid down: A man shall be charged in debt for the contract of his bailiff or servant, where he giveth authority unto his bailiff or servant to buy and sell for him; and so for the contract of the wife, if he give such authority to his wife, otherwise not. From this

that the husband is not liable to his wife's contracts, unless he has given his authority or assent; it is incumbent, therefore, on a creditor who brings an action against a husband upon a contract made by his wife, to shew that the husband has given such assent, or to lay before a jury such circumstances as will enable them to presume that such an assent has been given'; and, in the latter case, if such presumption is not rebutted by contrary evidence, the jury may find against the husband, but not otherwise: for the wife has not any power originally to charge the husband", but is absolutely under his power and government, and must be content with what the husband provides, and if he does not provide necessaries for her, her only remedy is in the spiritual court. In an action on the case for goods sold and delivered", the evidence to charge the defendant was, that the defendant's wife bought the goods to make her clothes, and that they cohabited. On the other side it was proved, that she was not in any want of clothes when she purchased these,

passage it

appears,

h Per Lord Kenyon, C. J, 4 Esp. N. P.

C. 42. i Manby v. Scott, 1 Bac. Abr. 296. k | Sidf. 121, 126. S. C. 11 Sidf. 127. m Per Holt, C. J. in Etherington v.

Parrot, Ld. Raym. 1006.

n Etherington v. Parrot, Salk. 118, and

Raym. 1006. This case was agreed,
per cur. to be good law in Boulton v.
Prentice, M. T. 18 G. 2. Ford's
MSS. post, p.

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