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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 {/), for the latter case has been disapproved of, and may be considered as overruled ig). 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, I 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.

(/") 3 Taunt. 421; Lawrence, J., said " the wife might, if she thought fit, have sued for alimony, and a divorce a mensd 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 reeollected the cases decided by Lord Ellenborough (Aldis v. Chapman, and Liddlow v. Wilmot), he should have decided, even at nisi pritis, against the case of Horwood v. Heffer; see 3 Bingh. 130.

(A) Ibid.

(t) Emery v. Emery, 1 Y. & J. 501. (Alexander, C. B. dubitante.)


Cases wiiere To make the husband liable for necessaries

propeny supplied to his wife in cases where he has quitted

wife. her and gone abroad, if he has left any property

behind, the plaintiff must show that such property

was inadequate to her support (A), and that the

goods supplied accorded with the rank and station

which the wife notoriously assumed (i).

Cases where *n some cases where the husband has separated

wife may be himself from his wife, she may be treated as a

treated as'

feme sole, 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 (/). 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.

(k) Co. Litt. 132 b. 133 a.

(0 De Gaillon v. L'Aigle, 1 B. & P. 8, 357, 368; Watford 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 Due 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. Bvsnach, 1 Bingh. N. S. 139; S. C. 4 M.& Sc. 678; Farrar v. Granard, 1 N. R. 80; Boggett v. Frier, 11 East, 301.

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 (0). But, it seems, if the husband is an alien who never resided in 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 (g). 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 Si 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),trader' nor make her liable to be sued (u), as such, in the

(n) Deerly v. Duchess of Mazarine, 1 Salk. 116.

(o) 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. .- •

(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.

(0 Caudell v. Shaw, 4 T. R. 361.

(«) Clayton v. Adams, 6 T. R. 605.

superior courts of Westminster, even where the custom appears on the record (.r).

3. Where husband and wife do not cohabit, arid the act of separation is on the part of the wife. The leading authority on this subject is the Case of case of Manby v. Scott (y). It is laid down by Seott.9 *' 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" (2). 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.

(J) 1 Sid. 109; S. C. 1 Mod. 128; lLev.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.

(a) Supra, p. 32.

apart, discharged the husband's liability, though the goods were necessaries, and the wife had no separate maintenance.

Accordingly, it is now the established doctrine, Adulter or that, where the wife elopes with an adulterer, any ofTTfcdUtradesman who gives her credit, even for neces- husband'«e saries, does so at his peril, whether he has had 1,abll"-vnotice of her elopement or not (b); nor is the husband bound to receive her back, or to support her, though he himself have committed adultery(c). If the wife has been guilty of adultery, though she may not have eloped, but has been turned out of doors by her husband, the act of separation will be considered to be on her part, and the husband's liability is discharged on proof of the adultery (d).

In all cases where a married woman lives apart from her husband, it is the duty of a tradesman, before trusting her, to make inquiry into the circumstances under which the separation has taken place (e); and in an action, brought against the husband, the proof rests on the plaintiff that the wife was justified in living apart (/).

(6) Bull. N. P. 135; Morris v. Martin, 1 Str. 647; Mainwaring v. Sands, 1 Str. 706; Child v. Hardyman, 2 Str. 875; Robinson v. Greinold, 1 Sulk. 119; Hall v. Gates, 11 Mod. 241.

(c) Govier v. Hancock, 6 T. R. 603. See Rex v. Flintan, 1 B. & Ad. 227.

(d) Walton v. Green, 1 C. & P. 621; Ham v. Toovey, Selw. N. P. 278.

(f) Clifford v. Laton, 3 C. & P. 15.

(/) Mainnaring v. Leslie, 2 C. & P. 507 ; S. C. 1 M. & Malk. 18.

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