CHAPTER VIII. BARON AND FEME. I. Of the Liability of the Husband, 1. In respect of Contracts made by the Wife before Coverture 2. In respect of Contracts made by the Wife during 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 PAGE 325 325 326 338 338 .. 344 344 3. Where the Husband and Wife may join, or the Hus- band IV. Of Actions against Husband and Wife, 345 . 347 .. 351 I. Of the Liability of the Husband. 1. In respect of Contracts made by the Wife before Coverture, p. 325. 2. In respect of Contracts made by the Wife during Coverture, p. 326. 3. In respect of the Children of the Wife by a former Husband, p. 338. 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 (a); and in actions for the recovery of such debts, husband and wife must be joined (b). But if these debts are not recovered against the husband and wife, in the lifetime of the wife, the husband cannot be charged for them either at law or in equity after the death of the wife (c). If the wife survive the husband, an action may be maintained against her for the recovery of these debts (d); unless during the coverture the husband has been discharged under the Insolvent Debtors' Act, in which case the wife is discharged for ever (e); and such discharge is also a good (a) F. N. B. 120, F. (b) 7 T. R. 348. (c) F. N. B. 121, C.; 1 Rol. Abr. 351, (G.) pl. 2. (d) Woodman v. Chapman, 1 Campb. 189, Lord Ellenborough, C. J. (e) Lockwood v. Salter, 5 B. & Ad. 303. defence to an action brought against the husband and wife jointly, for a debt due by the wife dum sola (f). The defendant's wife, before marriage, gave a promissory note for 507, to the plaintiff, and afterwards married the defendant, who had with her personal estate to the amount of 7007., 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 be, 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 (g). 2. In respect of Contracts made by the Wife during Coverture.All the personal estate of which the wife is possessed in her own right, is by the marriage vested absolutely in the husband (h). The marriage is an absolute gift of all chattels personal in possession in her own right, whether the husband survive the wife or not; even the wearing apparel of a married woman, bought by her out of an income settled in the hands of trustees to her sole and separate use, belongs to her husband, and may be taken in execution for his debts (i). But with respect to choses 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 wife (k). (f) Sherrington v. Yates, 12 M. & W. 855, 864. (g) Heard v. Stamford, 3 P. Wms. 409; Ca. Temp. Talb. 173, S. C. (h) 1 İnst. 351, b, recognized in Checchi v. Powell, 6 B. & C. 253. (i) Carne v. Brice, 7 M. & W. 183, cited by Tindal, C. J., in Tugman v. Hopkins, 4 M. & G. 401. (k) 1 Inst. 351, b, cited per Tenterden, C. J., delivering judgment in Richards v. Richards, 2 B. & Ad. 453. 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, or compels her, by ill-usage or severity, to leave him; in all which cases he gives the wife a general credit (7). "If the husband turns his wife out of doors," said Lord Kenyon, "though he advertises her and cautions all persons not to trust her, or if he 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 has turned his wife out of doors, he sends with her credit for her reasonable expenses" (m). 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 elopement cannot be implied; yet by analogy to the same rule, as soon as he receives her again, the presumption of law revives, and attaches upon the contracts made by her after the reconciliation (n). But as cohabitation is presumptive evidence only of such assent, it may be rebutted by contrary evidence (o). In like manner, 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 (p). This presumption from cohabitation applies also where a woman is living with a man as his wife, although not in fact married to him, and will continue after such cohabitation has ceased, if the creditor has not been informed of the separation (q). Having thus laid down the general positions respecting contracts made by the wife, I shall proceed to establish them by authorities, (1) Per Lord Kenyon, C. J., in Hodges v. Hodges, 1 Esp. N. P. C. 441. (m) Harris v. Morris, 4 Esp. N. P. C. 42. (n) Per Lord Kenyon, C. J., 4 Esp. N. P. C. 42. (0) Manby v. Scott, 1 Bac. Abr. 296; S. C. 2 Smith's L. C. 341, 3rd Edit. (p) 1 Sid. 121, 126, S. C. (q) Ryan v. Sams, 12 Q. B. 400; S. C. 17 L. J., Q. B. 271; and see post, p. 336. 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. Indeed, 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 passage it appears, 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 show 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 (r); 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 (s). A person who contracts with an ordinary agent, contracts with one capable of contracting in his own name; but he who contracts with a married woman, knows that she is in general incapable of making any contract by which she is personally bound (t). In an action 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, and that the defendant, the last time that he paid the plaintiff, warned the plaintiff's servant not to trust her any more, and to give his master notice of it. Holt, C. J., said, that during cohabitation the husband shall answer all contracts of the wife for necessaries, for his assent shall be presumed to all such contracts upon the account of cohabiting, unless the contrary appear. But if the contrary appear, as by the warning in this case, there is not any room for such presumption; and he held, that the notice to the servant usually employed by the plaintiff in his trade was sufficient notice to the master (u). When the wife is not living with her husband, there is no presumption that she has authority to bind him even for necessaries suitable to her degree in life; it is for the plaintiff to show that, under the circumstances of the separation, or from the conduct of the husband, she had such authority (x). Where a (r) 1 Sid. 127. (s) Per Holt, C. J., in Etherington v. Parrot, Lord Raym. 1006. (t) Per Alderson, B., delivering judgment of court in Smout v. Ilbery, 10 M. & W. 21. (u) 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 Geo. II., Ford's MSS. post, p. 334. (x) Per Abbott, C. J., in Mainwairing v. Leslie, M. & Malk. N. P. C. 18. See also Clifford v. Laton, ib., p. 101. |