was not liable for debts contracted by the wife for expensive articles of dress without the husband's knowledge.

The defendant treated his wife with great cruelty, and took another woman into the house, with whom he cohabited; he confined his wife in her chamber under pretence of insanity; she escaped, and the plaintiff brought an action against the defendant for the value of necessaries furnished to the wife after her departure; Lawrence, J., thought that, as the wife might have had necessaries if she had remained, the action could not be supported. And Mansfield, C. J., thought that nothing short of actual terror and violence would support the action (s).

If a man cohabits with a woman (t), to whom he is not married, and permits her to assume his name, and appear to the world as his wife, and in that character to contract debts for necessaries, he will become liable, although the creditor be acquainted with her real situation; for here a like assent will be implied, as in the case of husband and wife. But this rule only holds during cohabitation; for when they have separated (u), the man is no longer liable. A man who had for some years cohabited with a woman that passed for his wife, went abroad, leaving her and his family at his residence in this country, and died abroad; it was holden (v) by three judges, absente Tenterden, C. J., that the executor was not bound to pay for goods which had been supplied to her after the man's death, although before information of his death had been received. In an action for the use and occupation of apartments by the defendant's wife (w), it appeared that the apartments had been occupied by a lady, who went by the defendant's name, and who had actually been married to him. The defence attempted to be set up was, that the defendant had a former wife then and still living. But Lord Ellenborough, C. J., said, that there was not any evidence to fix the plaintiff with a knowledge of the celebration of the first marriage, and that the defendant was estopped to set up bigamy as a bar to the action. He had given the woman who lodged with the plaintiff, every appearance of being his wife. By his misconduct in marrying a second wife, whilst his first was still alive, he had done what he could to confer the rights of marriage upon both, and had incurred a civil as well as a criminal responsibility.

3. In respect of Children of the Wife by a former Husband.-If a man marries a woman having children by a former husband, he is not bound (x) by the act of marriage to maintain such children (y);

(s) Horwood v. Heffer, 3 Taunt. 421. But see Houliston v. Smyth, 3 Bingh. 127, ante, p. 279.

(t) Watson v. Threlkeld, 2 Esp. N. P. C. 637, Kenyon, C. J.

(u) Munro v. De Chemant, 4 Campb.

215.

(v) Blades v. Free, Executor of Clark, 9 B. & C. 167.

(w) Robinson v. Nahon, 1 Campb. 245. (x) But see stat. 4 & 5 Will. IV. c. 76, s. 57. Poor Law Act.

(y) Tubb v. Harrison, 4 T. R. 118, recognized in Cooper v. Martin, 4 East, 76.

but if he holds them out to the world as part of his family, he will be considered as standing in loco parentis, and liable even on a contract made by his wife during his absence abroad, for the maintenance and education of such children (z). Maintenance by the second husband of the children of wife by former husband, is a good consideration for a promise by such children, when they come of age, to repay the expense of their maintenance. Cooper v. Martin, 4 East, 76. See Rawlins v. Vandyke, 3 Esp. N. P. C. 252, Lord Eldon's opinion as to how far a father is liable for necessaries furnished to his children, living with the mother apart from the father. The father of a bastard child is liable for its nursing and board, if he adopts it as his own, although an order of filiation has not been made on him. Heskett v. Gowing, 5 Esp. N. P. C. 131.

II. In what Cases a Feme Covert may be considered as a Feme Sole.

It is now clearly established, notwithstanding former decisions (a) to the contrary, that a feme covert cannot bring an 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 coverture (b). A woman divorced a mensâ et thoro for adultery, and living separate from her husband, cannot be sued (c) 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 con

(z) Stone v, Carr, 3 Esp. N. P. C. 1, Kenyon, C. J.

(a) Ringstead v. Lady Lanesborough, 3 Doug. 197; Barwell v. Brooks, 3 Doug.

371; and Corbett v. Poelnitz, 1 T. R. 5. (b) Davenport v. Nelson, 4 Campb. 26. (c) Lewis v. Lee, 3 B. & C. 291.

formity; 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. & 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 sue (d), or be sued (e), in the courts at Westminster, without her husband.

2. A wife may acquire a separate character by the civil death of her husband, by exile (ƒ), and formerly by profession and abjuration of the realm. See 1 Inst. 133, a, where Sir Edward Coke says, "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 felony, is disabled to bring any action; for he is extra legem positus, and is accounted in law civiliter mortuus." 1 Inst. 130, a.

3. Where the husband has 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 sole (g). Lord Eldon (h), 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 years 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,

(d) Caudell v. Shaw, 4 T. R. 361. (e) Beard v. Webb, 2 Bos. & Pul. 93. (ƒ) Belknap's case, 2 Hen. IV. 7, a ; it appears by the year book, 1 Hen. IV. 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.

(g) Sparrow v. Carruthers, cited in Lean v. Schutz, 2 Bl. R. 1197, and in Corbett v. Poelnitz, 1 T. R. 7.

(h) Marsh v. Hutchinson, 2 Bos. & Pul. 231.

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 for goods sold and delivered (i), 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 (j), 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

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

(j) Walford v. The Duchess de Pienne, June 7, 1797, Middlesex Sittings, 2 Esp. N. P. C. 554.

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. & 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. & 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. & 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 Bingh. N. C. 139, and Barden v. De Keverberg, 2 M. & W. 61.

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 madder-grounds, 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 (k) the plaintiff replied, that the defendant's husband "lived and resided in Ireland, and that the defendant lived in this kingdom

(k) Farrar v. Countess of Granard, 1 Bos. & Pul. N. R. 80.