LORD KENYON, Ch. J.: That case may, upon examination, be found to be distinguishable from those which I have before referred to; but, at all events, the weight of authorities, as applicable to this case, is the other way; and the point has been repeatedly settled in later determinations. B. Morice then relied on the 11th sectiont of the act in question; by which, it is only made necessary to set out such material facts as constitute the offence charged; saying, That this was a mere formal objection, and if available at all, was matter of defence for the defendant on the hearing;-That it would not be necessary in an indictment on a statute, to negative that the defendant is within any of the provisoes therein, which are matter of defence to the charge, 2 Hawk. c. 25, S. 113; and that greater form was not necessary under the 11th section than would be necessary in an indictment at common law. LORD KENYON, Ch. J.: This is not an objection of form but of substance; and the reason is well given by Hawkins why a conviction should negative all the exceptions in the enacting clause, because the party cannot plead to such a conviction, and can have no remedy against it, but from an exception to some defect appearing on the face of it; and all the proceedings are in a summary manner. Therefore, the conviction itself should shew that the party accused had not the defence which the act gives to him, if true. Even by the saving clause, all material facts necessary to constitute the offence must be stated: this then is a material fact, That the buttons exposed to sale were not on pattern cards. The good sense of the thing is in support of what is said by Hawkins; for being a summary proceeding and conclusive on the defendant, it ought to have the greatest certainty on the face of it. ÷ Viz. :- That "no conviction, made upon any offence in this Act mentioned, shall be set aside in or by any Court for want of form, or through the mistake of any fact, circumstance, or other matter what soever, provided the material facts 2 Hawk. c. 25, s. 113. THE KING x. JUKES. THE KING v. JUKES. [*545] B. Morice then objected: that the defendant having elected to appeal to the sessions, the certiorari was in effect taken away by the act, because it is said that the determination of the sessions should be final; † but LORD KENYON, Ch. J. said: That would be against all authority; for the certiorari being a beneficial writ for the subject, could not be taken away without express words; and he thought it was much to be lamented in a variety of cases that it was taken away at all. Per CURIAM: Conviction quashed. 1800. May 24. [ 545] MARSHALL v. MARY RUTTON. (8 T. R. 545-548.) A feme covert cannot contract and be sued as a feme sole, even though she be living apart from her husband, having a separate maintenance secured to her by deed.‡ LORD KENYON, Ch. J. delivered the judgment of the Court in this case as follows: This is an action of assumpsit, brought by John Marshall against Mary Rutton, for goods sold and delivered to her, for work and labour, and money laid out to her use, and on other general counts. To this the defendant has pleaded her coverture with one Isaac Rutton, who is still alive. The plaintiff has replied, that before making the promises of the defendant, she and her husband had mutually covenanted and agreed to live separate and apart; that a separation accordingly took place between them and that they have continually from thenceforth lived, and still live, separate and apart; that a competent separate maintenance suitable to the estate and degree of the defendant, of 200l. per annum, was in due form of law secured † s. 9. As to the extent to which the principle of the Common Law is modified by the Married Women's Property Act, 1882, see Palliser v. Gurney (C. A. 1887) 19 Q. B. D. 519, 56 L. J. Q. B. 546; Scott v. Morley (C. A. 1887) 20 Q. B. D. 120, 57 L. J. Q. B. 43; and Stogdon v. Lee, C. A. from Q. B. D. '91, 1 Q. B. 661, 60 L. J. Q. B. 669.-R. C. RUTTON. to her by deed, during the joint lives of her and her husband, MARSHALL which has been duly paid to her; and that the promises in the declaration were made subsequent to the separation of her and her husband. The defendant has rejoined, admitting the separation between the defendant and her husband before the promises, &c. and stating the deed mentioned in the replication as being a deed of articles of agreement made between the said Isaac Rutton and herself of the one part, and Thomas Rutton of the other, whereby it was provided that the separate maintenance should be paid for such time only as the defendant should suffer the said Isaac Rutton to live separate and apart from her, and the defendant should maintain a chaste, due, and becoming conduct, and should support and keep Mary Rutton and Elizabeth Rutton their two youngest children, without any other charge or incumbrance to the said Isaac Rutton, &c.; concluding with a traverse of the said separate maintenance being secured to her during the joint lives of her and her husband. To this rejoinder the plaintiff, having craved oyer of the articles of agreement, has demurred, assigning various causes which need not be stated; and the defendant has joined in demurrer. The general question, which arises on this record is, Whether by any agreement between a man and his wife, she may be made legally responsible for the contracts she may enter into, and be liable to the actions of those who may have trusted to her engagements, as if she were sole and unmarried? On account of the magnitude of the question, and from respect to the authority and learning of those Judges, who in some late cases have holden that a feme covert living so separate from her husband is liable to be thus sued, we thought this a case fit to be argued before all the Judges: and it has been twice argued, once in Easter Term, 1798, + before all the then Judges, except Mr. Baron PERRYN, and again in this Term before all the present Judges, except Mr. Justice BULLER, whose absence on every account we had occasion to lament; and after a very full †The case was argued the first time by Wathen for the plaintiff, and Guselee for the defendant; and R.R.-VOL. V. the second time by Law for the G G [543 ] MARSHALL consideration, the opinion of all the Judges who heard the last argument is, that this action cannot be supported. v. RUTTON. [ *547 ] The ground on which the plaintiff in this case rests his claim, is an agreement between the defendant and her husband to live separate and apart from each other. That is, a contract supposed to be made between two parties, who according to the text of Littleton, s. 168, being in law but one person, are on that account unable to contract with each other: and if the foundation fail, the consequence is, that the whole superstructure must also fail. This difficulty meets the plaintiff in limine. If it did not, and the parties were competent to contract at all, it would then become material to consider how far a compact could be valid, which has for its object the contravention of the general policy of the law in settling the relations of domestic life, and which the public is interested to preserve; and which, without dissolving the bond of marriage, would place the parties in some respects in the condition of being single, and leave them in others subject to the consequences of being married; and which would introduce all the confusion and inconvenience which must necessarily result from so anomalous and mixed a character. In the course of the argument some of these difficulties were pointed out; and it was asked, Whether, after such an agreement as this, the temporal courts could prohibit, if either party were to sue in the Ecclesiastical Court for the restitution of conjugal rights? Whether the wife, if she committed *a felony in the presence of her husband, would be liable to conviction? Whether they could be witnesses for and against each other? Whether they could sue and take each other in execution ?—and many other questions will occur to every one, to which it will be impossible to give a satisfactory answer. For instance, it may be asked, How it can be in the power of any persons by their private agreement to alter the character and condition which by law results from the state of marriage while it subsists, and from thence to infer rights of action and legal responsibilities as consequences following from such alteration of character and condition? or how any power short of that of the Legislature can change that, which by the common law of the land is established as the course of judicial proceedings? v. RUTTON. The argument in favour of the plaintiff rested on this position MARSHALL only, as a principle, viz. That where the husband ceases to be the protector of his wife, and is not liable to have any claim made on him for her support and maintenance, it necessarily follows that she herself must be her own protectress, make contracts for herself, and be responsible for them. But if this were a necessary consequence, it would hold in all cases: but that is not so; for if a woman should elope from her husband, withdraw herself from his protection, and live in adultery, he is not by law liable to answer for her necessaries; and no case has decided that the woman is. A wife living apart from her husband, and who has property secured to her own separate use, must apply that property to her support, as her occasions may call for it; and if those who know her condition, instead of requiring immediate payment, give credit to her, they have no greater reason to complain of not being able to sue her than others who have nothing to confide in but the honour of those they trust. From the incapacity of a married woman to contract, or to possess personal property which may be the subject of contract, men and their wives desirous of living separate have found it necessary to have recourse to the intervention of trustees, in whom the property, of which it is intended she shall have the disposition, may vest uncontrolled by the rights of her husband, and with whom he may contract for her benefit; but in such property the woman herself acquires no legal interest whatsoever. Of such trusts, courts of equity alone can take notice; they can cause the fund to be brought before them to be applied, as in justice it ought to be; and in those Courts the creditor must prefer his claim. The earliest cases on this subject proceed on the ground of the husband being considered as dead, and the woman as being in a state of widowhood, or as divorced à vinculo matrimonii, in which light Rutton and his wife do not stand; and until the cases of Ringstead v. Lady Lanesborough, Barwell v. Brooks, and some subsequent cases, which we wished to have reconsidered, we find no authority in the books to shew that a man and his wife can † 3 Dougl. 197. in the original report, nor is it to be traced in the usual digests. There is 10 reference to this case G G [ 548 ] |