due in conscience," ought to be correctly set forth in the declaration (t). Where hus- 2. Where husband and wife do not cohabit, and the act of separation is on the part of the husband. band sepa rates from his wife, he is equally liable. In general, where the separation has been caused by the husband, he will be equally liable for the debts of his wife, as if cohabitation continued; or, rather perhaps in a still greater degree, if he does not contribute to her proper maintenance (a). Therefore, where he deserts his wife or turns her out of doors causelessly, he is liable (b), and in such case if he does not properly provide for her, he cannot make a particular prohibition against any individual tradesman (c). It has been frequently held at nisi prius, that the law is the same when the husband constructively turns his wife out of doors, as by cruelty and ill (t) Littlefield v. Shee, 2 B. & Adol. 811. [Lord Tenterden, C. J. said that the doctrine, that a moral obligation is a sufficient consideration for a subsequent promise, must be received with some limitation, ib. 813; and see 2 Wms. Saund. 137 d. note b.] (a) Thompson v. Hervey, 4 Burr. 2177. [Where the parties. are living separate, and an action is brought for necessaries supplied to the wife, they ought to be specially stated to have been provided for her; Ramsden v. Ambrose, 1 Str. 127.] (b) Bac. Abr. Baron and Feme, H.; Bull. N. P. 135; Shepherd v. Mackoul, 3 Campb. 326; Warr v. Huntly, 1 Salk. 118; S. C. Holt, 102; Ewers v. Hutton, 3 Esp. 255. See Jenkins v. Tucker, 1 H. Bl. 90. (c) Bolton v. Prentice, 2 Str. 1214, reported more fully Selw. N. P. 281; Harris v. Morris, 4 Esp. 41. treatment (d); or by rendering the house unfit for her residence by bringing another woman to reside in it (e); or where the husband is guilty of any impropriety which affords a reasonable ground of justification to the wife in quitting his protection. And these cases seem to be good law, notwithstanding the doubts thrown upon them in the case of Horwood v. Heffer (ƒ), for the latter case has been disapproved of, and may be considered as overruled (g). It is a question for the jury, whether the apprehension of personal violence and ill-treatment has been sufficiently great to justify the wife in removing from the house (h). If the wife has left the house for a reasonable cause, it is not sufficient to discharge the husband's liability that he has merely requested her to return to his protection (i). (d) Hodges v. Hodges, 1 Esp. 441; Emery v. Emery, 1 Y. & J. 501; Reed v. Moore, 5 C. & P. 200. (e) Aldis v. Chapman, Selw. N. P. 281, coram Lord Ellenborough, C. J.; Liddlow v. Wilmot, 2 Stark. N. P. C. 86. (f) 3 Taunt. 421; Lawrence, J., said " the wife might, if she thought fit, have sued for alimony, and a divorce a mensa et toro." And Mansfield, C. J. thought nothing short of actual terror and violence would support the action. (g) Houliston v. Smyth, 3 Bingh. 127; S. C. 2 C. & P. 22: see the judgment of the court. Best, C. J. said, that if he had recollected the cases decided by Lord Ellenborough (Aldis v. Chapman, and Liddlow v. Wilmot), he should have decided, even at nisi prius, against the case of Horwood v. Heffer; see 3 Bingh. 130. (h) Ibid. (i) Emery v. Emery, 1 Y. & J. 501. (Alexander, C. B. dubtante.) D Cases where he has left property with his wife. Cases where treated as feme sole. To make the husband liable for necessaries supplied to his wife in cases where he has quitted her and gone abroad, if he has left any property behind, the plaintiff must show that such property was inadequate to her support (h), and that the goods supplied accorded with the rank and station which the wife notoriously assumed (i). In some cases where the husband has separated wife may be himself from his wife, she may be treated as a feme sole, and will be liable to be sued on her own contracts; as, where the husband has abjured the realm (k). It has been held, that the departure from England by a foreigner, and protracted residence abroad, were tantamount to abjuration, and that his wife, remaining here, was liable for her own debts (1). But this doctrine has been denied, and seems to be considered overruled (m). It will be a sufficient bar to the action, if the defendant can show that her husband has been alive during the (h) Bird v. Jones, 3 Man. & Ry. 121. (i) Dennys v. Sargeant, 6 C. & P. 419. (1) De Gaillon v. L'Aigle, 1 B. & P. 8, 357, 368; Walford v. Duchess de Pienne, 2 Esp. 554; Franks v. Ditto, 2 Esp. 587, cor. Lord Kenyon, C. J. (m) Kay v. Duchess de Pienne, 3 Campb. 123. Lord Ellenborough, C. J. said, "I do not know whether it was distinctly brought to Lord Kenyon's attention, that the Duc de Pienne had been living with the defendant as his wife within the realm; if So, I cannot subscribe to his opinion." And see Stretton v. Busnach, 1 Bingh. N. S. 139; S. C. 4 M. & Sc. 678; Farrar v. Granard, 1 N. R. 80; Boggett v. Frier, 11 East, 301. But, it seems, if never resided in seven years next before action brought (n); and the rule holds still stronger where the husband is an Englishman, because in such case the animus revertendi will be presumed (o). the husband is an alien who England, and the wife represents herself as a feme sole, she may be sued as such (p). The marriage is virtually dissolved, and the wife may be sued alone, where the husband has been banished the kingdom (9). So, if he has been transported for a limited period, the disability is suspended during the term of transportation (r); and the wife of a convict, who is sentenced to transportation but remains in the hulks in this country, may trade as a feme sole, and is liable to become bankrupt (s). When a married woman trades as a feme sole, Feme sole the custom of trade will not enable her to sue (t), nor make her liable to be sued (u), as such, in the (n) Deerly v. Duchess of Mazarine, 1 Salk. 116. (0) Marsh v. Hutchinson, 2 B. & P. 226; Williamson v. Dawes, 9 Bingh. 292. (p) Deerly v. Duchess of Mazarine, 1 Salk. 116; Kay v. Duchess de Pienne, 3 Campb. 123. د. (q) Belknap's case; Weyland's case, Co. Litt. 133 a; Wilmot's case, Moor. 851; Portland v. Podgers, 2 Vern. 104; Anon. v. Wilmore, 1 Rolle Rep. 400. (r) Carroll v. Blencow, 4 Esp. 27; Sparrow v. Carruthers, cited 2 Bl. Rep. 1197, and 1 T. R. 6. (s) Ex parte Franks, 7 Bingh. 762. (t) Caudell v. Shaw, 4 T. R. 361. trader. Case of superior courts of Westminster, even where the custom appears on the record (x). 3. Where husband and wife do not cohabit, and the act of separation is on the part of the wife. The leading authority on this subject is the case of Manby v. Scott (y). It is laid down by Hale, C. B. that, "upon the departure of the wife, all evidence of any obligation of the husband to maintain her, ceases; it would else be very unreasonable, for while they are both in one house, the same provision will serve for both" (z). The departure of the wife must be here taken to mean, her voluntary departure without the assent of her husband, and without reasonable and justifiable cause; for, if the conduct of the husband compels her to leave him, the act is his own, as much as if he actually turned her away (a). The rule laid down in Manby v. Scott was, that an express prohibition to the plaintiff against trusting the wife, who had voluntarily left her husband and lived (x) Beard v. Webb, (in error) 2 B. & P. 93. (y) 1 Sid. 109; S. C. 1 Mod. 128; 1 Lev. 4; 1 Keble, 69; Bac. Abr. Baron and Feme, H. The case was decided in the Exchequer Chamber by eight judges against three; but Atkins, B., one of the eight, agreed with the three, that, if there had been no special prohibition, it would have been otherwise. [And see Ramsden v. Ambrose, 1 Str. 127; Harris v. Collins, Bull. N. P. 136; Hindley v. Westmeath, 6 B. & C. 200.] (z) Manby v. Scott, Bac. Abr. Baron and Feme, H. |