Page images
PDF
EPUB

for goods sold and delivered, 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

h Carrol v. Blencow, June 3, 1801. Sittings after East. T. C. B. coram Alvanley, C. J. 4 Esp. N. P. C. 27.

i Walford v. the Duchess de Pienne, June 7, 1797, Middlesex Sittings, 2 Esp. N. P. C. 554.

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 husband being a foreigner. But see Stretton v. Busnach, 1 N. C. 139.

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 coverture 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

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

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.

k Williamson v. Dawes, 9 Bingh. 292. 1 Boggett v. Friar, 11 East, 301.

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 Election.

1. Where the Husband and Wife must join.-In real actions for the recovery of land for the wife, the husband and wife must joinm. So in action of waste, for waste committed on the land of the wife". So in detinue of charters of the wife's inheritance". In an action on a bond given to wife dum sola, husband and wife must joinP (4). But husband may sue alone on bill payable to wife dum sola, but becoming due after marriage 9.

m 1 Bulst. 21.

n 7 H. 4. 15. a. 3. H. 6, 34.

o Rol. Abr. 347. (R.) pl. 1.

p Per Lord Hardwicke C. J. in Bates v. Dandy, 2 Atk. 208.

q M'Neilage v. Holloway, 1 B. and A. 218. See Richards v. Richards, 2 B. and Ad. 453.

(4) I am not aware of any solemn adjudication on this point, but, the position is supported by the following authorities: 1. In Fenner v. Plaskett, Moor 422*, it is said, that for a debt due to the wife dum sola, husband and wife ought to join; but it is observable, that in Croke's report of this case, (Cro. Eliz. 459.) which is more full and accurate than Moor's, this dictum does not appear. 2. In 1 Roll. Abr. 347. (R.) pl. 3. it is laid down that husband and wife ought to join in actions due to the wife before coverture; but there is not any authority cited. 3. Lord Hardwicke, C. in Garforth v. Bradley, 2 Vez. 676, 677, takes a distinction between choses in action vesting in the wife before and after marriage, and confines the power of the husband to sue alone to those which vest during the coverture. 4. In Buller's N. P. 179. it is laid down that a debt due to a man, in right of his wife, cannot be set-off in an action against him on his own bond; cites Paynter v. Walker, C. B. E. 4 G. 3. 5. Lord Kenyon, C. J. delivering the judgment of the court in Milner v. Milnes, 3 T. R. 631, said, It is extremely clear on the one hand, that the marriage gives to the husband all the personal estate which the wife has in possession; it is also clear, on the other hand, that where a chose in action of the wife is to be reduced into possession, and it is necessary to bring an action for that purpose, it must be brought in the names of both husband and wife may be observed, on this last case, (which was an action of tres

It

Cited by the court in Weller v. Baker. 2 Wils. 422.

[ocr errors]

Bond was given to wife during the coverture; the wife died; and then the husband sued upon the bond, as administrator to his wife; it was holden on demurrer, that the action was well brought". If an action is brought in respect of a personal wrong to the wife, as for the battery of the wife, the husband and wife must join (5); and the declaration ought

r Day v. Padrone, B. R. Trin. 13 and 14 G. 2. 2 M. and S. 396. n.

pass brought by a feme covert, without her husband, for an injury done to a personal chattel of the wife dum sola; to which, coverture of the plaintiff at the time of exhibiting the bill was pleaded in bar,) that it was not necessary for the determination of this case to decide, that the action must be brought by husband and wife. It was only necessary to decide, in the first place, that the wife could not sue alone, upon which point there could not be any doubt, as the wife cannot in any of these cases sue alone; and 2ndly, whether advantage could be taken of the wife suing alone by a plea of abatement, or a plea in bar; the question whether the husband might sue alone, was wholly irrelevant. It may be proper to add, that the court were of opinion, that the plea ought to have been in abatement. 6. This question was raised, but not decided, in the case of Carr v. Taylor, 10 Ves. 578, before Sir W. Grant, M. R. who said, that there had been some doubt upon it at law. I cannot conclude this note without observing, that, until the doubts which hang over this question are removed by a solemn adjudication, the best way of proceeding for the recovery of a chose in action of wife dum sola, is to bring the action in the names of husband and wife, on the propriety of which method a question cannot be raised.

(5) But in these cases the husband may sue alone for the injury sustained by himself from the loss of the society, comfort, and assistance of his wife, in consequence of the battery; Hyde v. Scissor, Cro. Jac. 538. And if the husband adopts this method, he may in the same declaration complain of a battery to himself. Guy v. Livesey, Cro. Jac. 501. Although the wife ought not to be joined in an action with the husband for the battery of the husband, (Newton v. Hatter, Lord. Raym. 1208.) yet, where husband and wife join in an action, for a personal wrong to the wife, the husband may declare also for an injury arising solely to himself by way of aggravation of damages; as where, in trespass by husband and wife, for false imprisonment of wife, per quod negotia domestica of the husband remanserunt infecta ad grave damnum ipsorum. On motion, in arrest of judgment, the declaration was holden good; for although the husband and wife could not have declared jointly for the special damage resulting to the husband alone, if such damage had been the gist of the action, yet in this case, it having been laid for aggravation of damages only, the action was well brought; for trespass will lie for a matter jointly with other matters, for which singly an action could not have been maintained; as trespass will lie for entering the

« EelmineJätka »