Page images

action or be impleaded as a feme sole, while the relation of marriage subsists, and she and her husband are living in this kingdom, notwithstanding she lives separately from her husband, and has a separate maintenance secured to her by deed. This point was solemnly determined (after two arguments before the judges in the Exchequer Chamber,) in Marshall v. Rutton. 8 T. R. 545. A woman who has even declared herself to be a feme sole, and as such has executed deeds and maintained actions, if herself sued as a feme sole, is not thereby estopped from setting up a defence of coverturea. A woman divorced a mensá et thoro for adultery, and living separate from her husband, cannot be suedb as a feme sole. But the rule of law, which has considered a married woman as incapable of suing, or being sued, without her husband, admits of some modification from particular circumstances : 1. By the custom of the city of London, a feme covert being a sole trader, may sue or be sued in the city courts as a feme sole, with reference to her transactions in London: but even there the husband must be made a party to the suit for conformity. By the custom of London, "A feme sole merchant is where the feme trades by herself in one trade, in which her husband does not intermeddle, and buys and sells in that trade; then the feme shall be sued, and the husband named only for conformity; and if judgment be given against them, execution shall be against the feme only.” Langham v. Bewett, Cro. Car. 68. “This custom is one of those customs called executory customs, the meaning of which expression is, customs united to the courts of the city of London. They are pleadable in London, and not elsewhere, except so far as they may be made use of in the superior courts by way of bar.” Per Lord Eldon, C. J. delivering the judgment of the court in Beard v. Webb, in error, Exchequer Chamber, 2 Bos. and Pul. 98. The judgment here referred to is very elaborate, and contains a fund of useful information on this subject. A feme covert, sole trader in the city of London, cannot suec, or be suedd, in the courts at Westminster, without her husband.

2. A wife may acquire a separate character by the civil death of her husband, by exilee, and formerly by profession and abjuration of the realm. See 1 Inst. 133, a. where Sir Edward Coke says,

a Davenport v. Nelson, 4 Campb. 28.
b Lewis v. Lee, 3 B. and C, 291.
c Caudell v. Shaw, 4 T. R. 361.
d beard v. Webb, 2 Bos. and Pul. 93.
e Belknap's case, 2 H. 4. 7. a. it ap-

pears by the year book, 1 H. 4. 1. a.

that Belknap was banished to Gascony, there to remain until he attained the king's favour, which Sir E. Coke considered as a banishment for ever.

“ that an abjuration, that is, a deportation for ever into a foreign land like to profession, is a civil death; and that is the reason that the wife may bring an action, or may be impleaded, during the natural life of her husband. And so it is, if by act of parliament the husband be attainted of treason or felony, and saving his life, is banished for ever, as Belknap, &c. was; this is a civil death, and the wife may sue as a feme sole. But if the husband, by act of parliament, have judgment to be exiled for a time, which some call a relegation, that is not a civil death. Every person who is attainted of high treason, petit treason, or felor is disabled to bring any action; for he is extra legem positus, and is accounted in law civiliter mortuus.

i Inst. 130, a. 3. Where the husband had been transported for a term of years, before the expiration of which the debt was contracted, and sued for; Yates, J. thought that the transportation suspended the disability of the wife, and that she might be sued as a feme solef. Lord Eldons, commenting on this case, having said, that in the cases of abjuration, profession, &c. which amounted to a civil death, he thought he understood the situation in which the wife was placed, for the fiction of law, which considered the husband as civilly dead, put the wife in the same situation as if he were actually dead; then proceeded to observe that, “ transportation for a term of might give rise to many difficulties with respect to the enjoyment of the husband's estate, both real and personal; but, besides the difficulties which might arise during the term of transportation, another difficulty of equal importance occurred, where the wife had contracted debts after the period of her husband's transportation had elapsed, but before his actual return to his country. In the case of Sparrow v. Carruthers, Mr. Justice Yates seemed to have treated it as a material circumstance in evidence, that the time of transportation was not expired, and he did not give any opinion as to what would have been the situation of the parties, if it had been expired. The court could not presume to say how Mr. Justice Yates would have decided, had the husband continued to reside abroad, after the period of his transportation had expired, or had only remained there to arrange his affairs, with a view of returning to his country when he had so done." Since the preceding observations were made, the following case was decided at Nisi Prius in 1801: in assumpsit

f Sparrow v. Carruthers, cited in Lean g Marsh v. Hutchinson, 2 Bos. and

v. Shutz, 2 Bl. R. 1197, and in Ful. 231. Corbett v. Poelnitz, 1 T. R. 7.

for goods sold and delivered h, the defence was, that the plaintiff was a married woman. The plaintiff's counsel answered this case by producing the record of the husband's conviction for felony in March, 1794, and of a sentence of transportation for seven years; whereupon it was insisted, on the part of the defendant, that the sentence being for seven years, from March, 1794, that time was now expired, so that the husband was competent to sue. But Lord Alvanley, C. J. said, that by the record of the conviction and sentence, there was conclusive evidence to support the right of action in the plaintiff as a feme sole, and though the term of his transportation had expired, if in fact he had not returned, the right of action remained; but that, if the defendant meant to rely on the circumstance of the husband having returned, the proof of that lay on the defendant. Evidence to this effect not being offered, the plaintiff had a verdict.

4. Where the husband is an alien, who has deserted this kingdom, leaving his wife to act here as a feme sole, the wife may be charged as a feme sole for contracts made after such desertion. In assumpsit for goods sold and delivered', the defendant pleaded that she was covert of the Duke de Pienne. It appeared in evidence, that the duke, who was an alien, had gone abroad in the year 1793, with an intention to return in four months, but had not returned; during his absence the defendant had kept house, and paid bills on her own account and in her own name: Lord Kenyon, C. J. said, this case came within the principle of the common law, where the husband had abjured the realm. If the husband had been absent for some time, and then returned, and paid bills contracted by the wife in his absence, and again left the kingdom, he should hold the defendant not liable: but here was a desertion of the kingdom, and an absence for some years ; he was no longer domiciled here, and, in the interval, the wife was supplied with those articles; if she was not to be held liable for debts contracted under such circumstances, she might starve. See also Francks v. Duchess de Pienne, 2 Esp. N. P. C. 587, to the same effect. But see Kay v. D. de Pienne, 3 Campb. 123, where Lord Ellenborough confines the preceding doctrine to the case, where the husband has never been in this kingdom. In De Gaillon v. Victoire Harel L'Aigle, 1 Bos. and Pul. 357, where the replication to a plea of a coverture was, that the husband resided abroad, (not stating him to be an alien,) and that the defendant lived separate from him in this kingdom, that she traded as a feme sole, and plaintiff did not give credit to the husband, but traded with the defendant as a feme sole, and on her credit; the court held the wife chargeable as a feme sole. But it is conceived that, since the case of Marsh v. Hutchinson, 2 Bos. and Pul. 226, such a replication could not be supported unless it appeared that the husband was an alien. “There is a great difference between the cases of an Englishman residing abroad, leaving his wife in this country, and of a foreigner so doing. The former may be compelled to return at any time by the king's privy seal. There is not any case in which the wife has been holden liable, the husband being an Englishman." Per Heath, J. in Marsh v. Hutchinson. See also Farrer v. Countess of Granard, 1 Bos. and Pul. N. R. 80. where Heath, J. said, the case of De Gaillon v. L'Aigle proceeded much upon the ground of the defendant's ňusband being a foreigner. But see Stretton v. Busnach, 1 N. C. 139.

h Carrol v. Blencow, June 3, 1801. i Walford v. the Duchess de Pienne,

Sittings after East. T. C. B. coram June 7, 1797, Middlesex Sittings, Alvanley, C. J. 4 Esp. N. P. C. 27. 2 Esp. N. P. C. 554.

The case of Marsh v. Hutchinson, was an action for goods sold and delivered; the defence coverture. The defendant's husband was an Englishman, who about ten years before action brought, had purchased the appointment of agent for the English packets, at the Brill, in Holland, and had resided there ever since. During that period, he became possessed of madder grounds, from the cultivation of which he derived considerable profit. On the irruption of the French into Holland, in 1795, his employment as agent having ceased, he sent the defendant, together with his family, to reside in England, but he remained in Holland to look after his maddergrounds, and with a view to recover his situation, in case the intercourse between England and Holland should be re-established. The defendant lived at Aylsham, in Norfolk, and was there considered to be a married woman. The plaintiff had furnished her with coals, for the value of which this action was brought. It was holden, under these circumstances, that the husband's residence in Holland did not enable the wife to bind herself by her own contracts. So where to a plea of coverturei the plaintiff replied, that the defendant's husband “lived and resided in Ireland, and that the defendant lived in this kingdom separate from her husband as a single woman, and as such single woman, promised, &c.;" the replication was holden bad on general demurrer, because the terms of it were perfectly consistent with a mere temporary absence, and they might be applied to the case of every man, who went for a short time to live in Ireland or Scotland, and whose wife in the mean time contracted debts here. So where to a plea of coverture the plaintiff replied, that before the cause of action accrued the defendant's husband became bankrupt, absconded without appearing to his commission, and continued to reside in foreign parts; on general demurrer the replication was holdenk bad; for independently of the objection that this replication did not contain any express averment, that the defendant's promise was made during the absence of her husband, nor any equivalent allegation, it did not state such an involuntary absence of the husband, as within the principle of former decisions, could affect her with the liabilities of a feme sole. It alleged no more than a temporary absconding. To trespass for breaking and entering the plaintiff's dwelling house and shop', on the 8th April, 1807, and on divers other days, &c. and ejecting her from the possession thereof: defendant pleaded, that plaintiff at the time of committing the trespass, and thence continually, hitherto hath been, and still is, under coverture, of one Jos. Boggett, then and still her husband, and still alive. Replication, that before the committing the trespasses, the husband deserted and left plaintiff, and departed out of this kingdom to parts beyond the seas, viz. to America, without leaving any means of necessary provision and support to plaintiff; and from the time of his departure hitherto, has not returned to this country, nor corresponded with nor been heard of by plaintiff; and that during all that time, plaintiff has lived apart from her husband, and made contracts, and obtained credit as a single woman; and for her necessary support and maintenance has, during all that time, carried on the business of a merchant, as a single woman and sole trader, and as such was lawfully possessed of both dwelling-house and shop. Rejoinder, that the husband was born within this realm, and from the time of his nativity hitherto, has been and still is a subject of our Lord the king, and that he has not at any time hitherto abjured this realm, or been exiled or banished, or relegated therefrom. On demurrer, the court listened reluctantly to the argument in support of the replication, and gave judgment for the defendant on the authority of the preceding cases, observing, that the rule had been laid down in Marshall v. Rutton; it was capable of having exceptions engrafted on it, as where the absence is tantamount to a civil death, &c.; but that a temporary absence of the husband, not banished or the like, had never been deemed sufficient.

i Farrer v. Countess of Granard, 1 Bos. and Pul. N. R. 80.

k Williamson v. Dawes, 9 Bingh. 292.

1 Boggett v. Priar, 11 East, 301.

« EelmineJätka »