his possession, or under his control, does not return them to the tradesman, he will be liable, in cases where otherwise he would not. 1 Camp. 120.

4. Where the goods furnished the wife are suited to the appear. ance he permits her to assume, how far soever above his means, if he has not forbidden tradesmen from contracting with her, he will be liable. See 1 Camp. 120; 5 Taunt. 356.

5. In all cases, where a man holds a woman out to the world as his wife, he will be answerable for her contracts as if really so, even to those who know the facts; otherwise, after they separate. 4 Camp. 215.

6. A man having a wife, who marries a second, will be liable for necessaries furnished the second wife during the cohabitation, unless the plaintiff know the facts; in which case he cannot recover. 1 Camp. 245.

7. If a woman leaves her husband without fault on his side, and afterwards offers to return to live with him, and he refuses to receive her, he will be liable to any one who afterwards provides her with necessaries, if she has not committed adultery. See 11 Johns. R. 281; 12 Johns. R. 293; See, however, 6 T. R. 603; 1 Bos. & P. 338.

8. If he receives her again after an elopement, even if she has committed adultery, he will be bound in every case, as he would have been if she had not eloped, for necessaries furnished her. See 4 Esp. R. 41. His receiving her back, will be considered as a pardon and forgiveness of her crime.

But a husband will not be liable for the debts of his wife : 1. While she is living with him and properly provided for by him, according to his standing and ability, after notice given by the husband to tradespeople not to trust her. Before notice, he will be liable, because his assent will be implied to all contracts made by her for the use of the family, or for her own private use, if conformable to the appearance which he allows her to make.

2. For articles furnished the wife for the purpose of eloping, or after elopement, the husband will not be answerable, though the person furnishing know nothing of the purpose, or has no notice. Str. 647, 706.

3. It seems to be the better opinion, that if the wife lives apart from the husband, and has a separate maintenance, which is regularly paid, a tradesman, having actual or implied notice of the facts,

cannot recover from the husband the amount of necessaries furnished to her, by him; and perhaps too, if without such notice, he omits to make those inquiries which her situation would naturally suggest. See 3 Esp. R. 285; 8 Johns. R. 72. See also Clancy's Rights of Women, 28, and the cases and authorities there cited.

ams, 37.

2.

11. In what cases a married woman may sue, as a feme sole. In England, a wife may sue and be sued, as a feme sole, in the following cases: 1. Where the husband is banished. Where the husband is transported; the wife may sue and be sued as a feme sole during the period. 3. So, where the husband exiles himself after committing a crime. See Newsome v. Bowyer, 3 P The wife of an alien enemy may be sued and may sue as a feme sole. 1 Ld. Raym. 147. 5. But, the wife of a natural born subject, is not thus rendered sole, by the voluntary departure of her husband from the kingdom. 1 New Rep. 80. 6. So, the wife of an alien who has been in England, is not rendered sole by his leaving England. 3 Camp. R. 123; Marshall v. Rulton, 8 T. R. 545. 7. But, if the husband has never been in England, it seems the wife may sue and be sued as a feme sole. 3 Camp. 123.

A wife living in adultery, separate from her husband, is not liable for her contracts, and it seems generally that a married woman is in no case liable on her contracts so long as her husband is within the kingdom. See Clancy's Rights of Women, 66, and the various cases and authorities there cited. The above doctrine in general has been recognized as part of the common law in Massachusetts. See the learned opinion of Justice PUTNAM, in Gregory v. Paul, 15 Mass. R. 33.

In Massachusetts, it has been decided, that a married woman, being divorced a mensa et thoro, may recover her alimony in a suit against her husband. 1 Mass. R. 341.

Under the Rev. Stat. of Mass., ch. 77, in case of the husband, without making sufficient provision for his wife, the Supreme Judicial Court may authorize the wife on her petition for that purpose, to sell and convey her real estate, or any part thereof, and also any personal estate, which shall at any time have come to the husband, by reason of the marriage, and which may remain within the State undisposed of by him, &c., &c. She may also be authorized to commence and defend suits in law or equity, &c. as if she were

R

1

sole and unmarried. These powers are to continue until the husband returns and claims his marital rights.

The same authority may be granted to the wife, if her husband is sentenced to the State prison.

If a married woman comes into this State without her husband, he having never lived with her within this State, she may transact business, make contracts, and commence, prosecute and defend suits in her own name, and dispose of her property, which may be found here, in like manner, in all respects, as if she were unmarried. The arrival of the husband afterwards is to have the same effect, as if their marriage first took place at that time.

[See, in Maine, Stat. 1844, ch. 117; Stat. 1847, ch. 27; Stat. 1848, ch. 73.]

CHAPTER XII.

OF ACTIONS BETWEEN, BY, AND AGAINST PARTNERS IN TRADE, JOINT CONTRACTORS, &c.

As a general rule, if the cause of action arise ex contractu, the plaintiff must sue all the contracting parties, otherwise the action may be abated by plea; but where it arises ex delicto, the plaintiff may sue all or any of the parties at his discretion. In the former case, if the execution or judgment is satisfied by one of the contractors, he may have an action for contribution, against the others; but one tort feasor, though he pay all the damages, cannot maintain an action for contribution against the rest.

Where all the partners die, the executor or administrator of the one who survived the rest, is alone answerable at law; in equity it is otherwise. See 1 Binney, 123.

A dormant partner, i. e. one whose name does not appear in the firm, but who is entitled to share the profits with the others, may be sued with the rest of the firm, or he may be omitted, at discretion. 4 M. & S. 475; 7 T. R. 361, in notis.

An ostensible partner is liable, and any one, who suffers his name to be used as a partner, whether beneficially interested or not, may be sued with the rest of the partners. No private arrangement or understanding among the partners themselves, can prevent this consequence. 1 Camp. R. 99, n.

But by Mass. Rev. Stat., limited | artnerships are permitted under certain restrictions. Ch. 34.

An infant partner must not be joined in a suit, though he must join. 3 Esp. R. 76.

Where one partner pays a partnership debt, he may maintain an action for money laid out and expended, for the proportion which his partner should have contributed. But, if the partnership consists of three, and two of them pay a partnership debt with their private funds, must they join or sever in their suit? And perhaps this may depend upon the manner in which the payment is made. For, if they paid the partnership demand out of any joint funds belonging to those two only, they must join; but, if each of them, severally, contributes one moiety of the whole debt, it would seem each of them ought severally to sue the third for a moiety of that third part which he ought to have paid, but which they have severally paid on his account. See 5 East, 225.

If A is a partner in two distinct partnerships, it is said no contract can be enforced at law between those two partnerships. 2 Bos. & Pul. 120; 6 Taunt. 597. Because the same person (A) cannot be both plaintiff and defendant in the same suit. See Gow on Partnership, 159.

Where several persons, forming a party, dine at a tavern together, they are jointly liable for the whole expense, and not each for him. self alone. Forster v. Taylor, 3 Camp. 49.

All the partners must join in bringing an action.

The omission

is ground for a nonsuit on the trial. Imp. Pl. 326. Infancy in one of the partners will not excuse the omission. He must join with the rest. 14 East, 211.

In general, personal torts are of a several nature, and a joint action cannot be maintained for them; but each injured person must sue, separately, for the injury done to himself. But an action for slander may be maintained by a firm, for words spoken of them in reference to their trade. See Cook v. Bachelor, 3 Bos. & Pul. 150. But, suppose their interest in the partnership to be unequal, in what proportion shall the damages recovered be divided between the partners? Equally, or in proportion to their interests ?

A surviving partner must sue alone for the partnership debts, and cannot join the executors or administrators of the partners deceased, in the suit. And the executor or administrator of the last survivor must also bring the suit alone, and cannot join the executors or administrators of the other deceased partners. A surviving partner may join a count, for money due his partnership, with a count for money due to himself alone. 2 T. R. 476; 6 T. R. 582.

A dormant partner may join in the suit or not, in all cases where the interest of the defendant cannot be injuriously affected by it. 2 Taunt. 325; Gow on Partnership, 164; 2 Esp. R. 468; 3 Esp. R. 238.

A merely nominal member of a partnership need not join, if it can be shown, that he has no interest in the firm; and this nominal partner may be called as a witness for that purpose. 5 Esp. R. 199.

If one of a number of joint contractees sues, and the defendant omits to plead the fact in abatement of the writ, he cannot subsequently, in a suit brought by the other contractees, plead the nonjoinder in abatement; the omission has operated as a severance. See 6 Mass. R. 460; 5 Bur. 2611; 2 Bl. R. 695; Gow on Partnership, 221.

But, in cases of severance, by paying one or more of the contractees, or by thus omitting to plead in abatement the non-joinder of parties, must the remaining contractees sever also in their suits, or may they join? From analogy, it would seem, they must sue severally; but why should the act of the other contractees compel these to sever against their own consent?

Under the Rev. Stat. ch. 100, if the defendant pleads nonjoinder of any other person as defendant in an action grounded on a contract, the court, at any time before issue joined, may allow the plaintiff to amend, on terms, &c., by inserting the name of such person as defendant, and thereupon a new writ may be taken out and served, &c. &c.

One tenant in common, or joint-tenant of any personal thing, cannot maintain trover against his companion for any thing still in his possession, because the possession of one is the possession of both; and, in such case, if one of them, A, could maintain an action to recover possession of the article, as detinue or replevin, after he should have recovered it, the other, B, might, by parity of reasoning, have a similar action to recover it back again, one having as much right to the possession as the other. This would be absurd. But, if one keeps possession, the other may have account or some other suitable action against him, to recover a share of the profits. Or, if one should destroy or sell the article, the other may maintain trover or account, according to the circumstances of the See 3 Johns. R. 175; 4 East, 121; 1 Taunt. 241; 4 Taunt. 24; 4 East, 110.

case.