husband and wife, for a debt contracted by the wife dum sola, allege a promise made by the wife after marriage, it will be bad. In an action against husband and wife for the debt of the wife dum sola, the bankruptcy of the husband during the coverture, may be pleaded in barb. So the husband's discharge under the insolvent act is a good plea. But it has been held, that if the wife be taken in execution under such circumstances, she will not be entitled to her discharge, unless it appears that she has no separate property, even though her husband has been discharged under the insolvent act d. But this decision may perhaps be considered as overruled by the preceding case. See the observations of the judges in the former case, Patteson, J., said, that the former was inconsistent with the latter.

If the wife die, the husband is not liable to be sued as such on any contract made by the wife before marriage, unless judgment had been obtained against them both before her death; and if she die after action commenced, and before judgment, the suit will abate. But on the death of the husband, the wife is liable on all contracts made by her before marriage f. Where the solicitor for the defendant, who was sued jointly with his wife for a debt due from her dum sola, pleaded for the husband only; the plaintiff having caused the wife to be served with a copy of the process, was allowed to appear for her according to the statute, and treating the plea put in by the husband alone as a nullity, to sign judgment for want of a plea.

2.-When husband and wife should be sued jointly in actions ex delicto.] In actions ex delicto, the husband and wife must

When hus

band and wife may be sued

jointly for

torts.

be sued jointly for torts committed by the wife, either before or during coverture; as for assaults, slander, &c. So for assaults, trespasses, and other wrongs which may be committed by two conjointly, they may be sued jointly for the joint act of both b. Where a declaration in trover against husband and wife stated that the defendants converted the property to their own use; it was held sufficient after verdict; for a conversion does not necessarily import an acquisition of the property, (of which the wife is incapable,) it may be by the actual destruction of the property, which is a tort of which the wife may be guilty as well as the husband. But they cannot be jointly sued for slander spoken by both, for it would be error to sue the wife for words spoken by the husband only. The proper mode of proceeding against them under such circumstances is, to sue the husband and wife jointly for the words spoken by the wife, and the husband alone for the words spoken by him; and the two actions cannot be consolidated d. A husband is liable to be sued jointly with his wife for her libel or slander, though she has committed adultery and they live separate, at least if it be not shewn that the wife at the time was living in adulterye. A husband is liable to be sued alone for a breach of the revenue laws by his wife, if she acted under his authority, which is question for the consideration of the jury. "If goods be delivered to husband and wife, detinue will lie against the husband only, and not against both." If an action be brought against a feme sole, who before judgment marries, execution may be taken out against her alone. So if a woman marries after interlocutory judgment, in assumpsit,

a Com. Dig. Bar. and Fem. (V.) Bac. Ab. Bar. and Fem. (L.)

b1 Vent. 93.

Keyworth v. Hill, 3 B. & A. 685. Draper v. Fulkes, Yelv. 165. But in strictness, trover for a conversion during the marriage should be against the husband alone. 1 Ch. Pl. 93.

d Swithin v. Vincent, 2 Wils. 227.

Head t. Briscoe, 5 C. & P. 484. f Attorney-General v. Riddell, 2 Tyr. 523. 2 C. & J. 493. A wife may be guilty of a forcible entry into the house of her husband, and other persons also, if they assist her in the force, although her entry is in itself lawful. Rex v. Smith, I M. & Rob. 155.

& Per Dodderidge, J., Leon. 312. Doyley v. White, Cro. Jac. 323

the plaintiff may enter up final judgment without joining the husband, and sue out execution against the feme onlya,

In an action of trespass against husband and wife for her tort, before or during coverture, if she die before judgment the suit will abate; but if her husband die or become bankrupt, her liability will continue b.

3.-Consequence of misjoinder.] If the wife be sued alone, on her contract or tort, before marriage, she must plead her coverture in abatement; it cannot be pleaded in bar, or given in evidence at the trial as a ground of nonsuit; or a writ of error coram nobis may be brought. But if she sued on her supposed contract, made during coverture, she must plead it specially in bar, she cannot give it in evidence under the general issued. If the husband and wife be improperly sued jointly, on a contract after marriage, the action will fail as to both e. If the husband be sued alone upon the contract of his wife before marriage, and the objection appears on the face of the declaration, he may demur, move in arrest of judgment, or bring error. So if the husband and wife be sued jointly for torts during coverture, of which they could not be jointly guilty, as for slander; if the objection appear on the record it may be taken advantage of by demurrer, in arrest of judgment, or by

error g.

SECTION VIII.

DEEDS OF SEPARATION.

THE law in respect of the validity of deeds made in contemplation of a future separation, does not appear to be clearly settled. In Rodney v. Chambers h, the court decided that the

husband's covenant with the wife's trustees to pay her an annuity as a separate maintenance, in the event of a separation in future taking place between them, with the approbation of the trustees, was a legal and valid covenant; and that the trustees were entitled to recover, in an action against the husband, the arrears which had accrued on the annuity after separation. In Chambers v. Caulfield, the preceding case was thoroughly canvassed, and its authority never doubted. With reference to it, Lawrence, J., thus expressed himself. “In that case there was an averment that the separation was with the consent of trustees; we thought there was nothing illegal in the parties agreeing to refer the question what was a good cause of separation to a domestic forum. The court, therefore, only decided in that case, that a covenant for separation and a separate maintenance was good, not that a covenant was good generally, that a wife might separate herself from her husband whenever she pleased, for that would be to make the husband tenant at will to the wife of his marital rights." See also Lord Vane's case b. But the decision of Rodney v. Chambers is considered as virtually overruled by the case of Durant v. Titley, which came before the court on a writ of error; there the judges said that the courts had already gone too far, consistently with policy and morality, in supporting deeds of separation; they decided that a deed providing for a future separation was void. The case of Durant v. Titley, however, differed from the preceding cases, for the effect of the deed in that case, was to provide a separate maintenance for the wife, whenever she should be living apart from her husband, leaving it to her to separate from him at pleasure; whereas in Rodney v. Chambers, the deed provided for the wife only in the event of a future separation, with the approbation of the trustees. In Jee v. Thurlow, Abbott, C. J., said, that in deciding Durant v. Titley, it was not intended to shake any former decision; and Mr. Justice Bayley observed, that in Rodney v. Chambers the intervention of impartial persons was

required to decide, whether sufficient cause of separation did or did not exist. So that it is clear that the court in Jee v. Thurlow did not consider Rodney v. Chambers as overruled by Durant v. Titley. The principle laid down by Durant v. Titley was recognized and acted upon in Hindley v. the Marquis of Westmeath a, in which " the deed of separation was in terms similar to that before the court in Durant v. Titley." b

With reference to Durant v. Titley, it is said, that it may now be considered that a deed or settlement providing a separate maintenance for a wife, or an intended wife, in the event of future separation, either with or without the consent of trustees or other persons, is a provision which will not be enforced either at law or in equity. Yet see what the court said in Jee v. Thurlow, supra.

cohabitation avoids

a deed of separation.

A deed of separation is rendered void by subsequent co- Subsequent habitation, unless it contains an express provision to the contrary. As where a husband gave a bond to trustees conditioned for the payment of an annuity to his &c., unless she should molest him; and entered into a deed of separation, containing a provision for the maintenance of the wife, in which it was provided, "that if he and his wife should thereafter agree to live together again, such cohabitation should in no way alter the trusts created by the indenture." The defendant and his wife separated, and afterwards lived together again for a time, and this fact was pleaded to an action by the trustees upon the annuity bond as avoiding that security; held, on demurer to the plea, that the reconciliation was no bar to an action on the bond; for there was nothing in the deed to shew that the parties intended that the trusts should be avoided, in case of their again cohabiting. But on the contrary it was expressly provided that the trusts should be continued, though a reconciliation should take place. Though the deed contained some co