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

elopement

Accordingly, it is now the established doctrine, Adultery or that, where the wife elopes with an adulterer, any of wife distradesman who gives her credit, even for neces- husband's charges the saries, does so at his peril, whether he has had liability. notice 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 (ƒ).

(b) 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 Salk. 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.

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

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

Agreement to live separate is

legal.

4. Where the husband and wife do not cohabit, and the act of separation is mutual, or by operation of

law.

An agreement between husband and wife to live separate, is a perfectly legal agreement (g). Where the husband and wife separate by mutual consent, whether it be by deed of separation or otherwise, the husband will not be liable for her debts, pronot liable if vided he secures to her an adequate allowance (h).

Husband

he pays

adequate allowance.

The sufficiency of the sum allowed is a question of fact for the jury, depending on the rank and circumstances of the husband, and is not to be inferred from the mere acquiescence of the wife (i); and if the husband fails to pay the stipulated allowance regularly, his liability is not discharged (k). It seems to be unnecessary to prove that the plaintiff had notice of the separate maintenance allowed to the wife (); though it has once been held that such notice is necessary (m).

(g) Scholey v. Goodman, 1 C. &. P. 36; S. C. 8 B. Moore, 350. 1 Bingh. 349.

(h) Nurse v. Craig, 2 N. R. 148; Todd v. Stokes, 1 Ld. Raym. 444; S. C. 1 Salk. 116; Ozard v. Durnford, Selw. N. P. 279; Stedman v. Gooch, 1 Esp. 6; Cragg v. Bowan, 6 Mod. 147; Hyde v. Price, 3 Ves. Jun. 445; so, where the separation is by the sentence of a spiritual court, Hunt v. Blaquiere, 3 M. & Payne, 121, see per Best, C. J.

(i) Hodgkinson v. Fletcher, 4 Campb. 70.

(k) Nurse v. Craig, 2 N. R. 148; Hunt v. De Blaquiere, 5 Bingh. 550; S. C. 3 M. & Payne, 108.

(1) Turner v. Winter, Selw. N. P. 280.
(m) Rawlins v. Vandyke, 3 Esp. 250.

It is immaterial whether the source, from which the funds for the wife's maintenance proceed, be the husband himself or not, provided such funds are adequate (n); and provided they are permanent, for if they depend on a mere voluntary pension, the husband continues liable (0).

To discharge the husband, the deed of separation must provide for an immediate, and not for a future separation to take place at the will of either party; otherwise the deed is null and void (p). And where the deed is to trustees for the use of the wife, the husband must show that the trustees have given effect to the deed (g). So, a decree of alimony is no bar, if the debt was contracted before the decree, and while the suit was pending in the Ecclesiastical Court (r); but alimony decreed pendente lite is a bar, provided the husband pays it, although the decree be for the time rendered inoperative by removal of the cause into a superior court (s).

promise to

Even where the husband's liability is discharged Express by allowing his wife a fund for her separate maintenance, an action for goods sold may be maintained against him on an express promise to pay

(n) Liddlow v. Wilmot, 2 Stark. N. P. C. 86.

(0) Thompson v. Hervey, 4 Burr. 2177.

(p) Durant v. Titley, 7 Price, 577; Hindley v. Marquis of Westmeath, 6 B. & C. 200.

(q) Burrett v. Booty, 8 Taunt. 343.
(r) Keegan v. Smith, 5 B. & C. 375.
(s) Willson v. Smyth, 1 B. & Ad. 801.

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pay binds the husband.

the debt contracted by her (t). It is difficult to see what is the consideration to support such promise (u); it is said, that the promise may be considered almost conclusive evidence of an admission of the insufficiency of the separate allowance (r).

It was formerly decided (contrary to the principles of common law), that where husband and wife lived separate and the latter had a separate maintenance, since the husband ceased to be liable, the wife might be treated as a feme sole, and sued on her own contracts (y). But this doctrine has been overruled by a case, resolved upon the unanimous opinion of the judges after great deliberation (2). Lord Kenyon, in his judgment, observed: "It may be asked how it can be in the power of any persons, by their private agreement, to alter the character and condition which by law results from the state of marriage while it subsists, and from thence to infer rights of action and legal responsibilities, as consequences following from

(t) Hornbuckle v. Hornbury, 2 Stark. N. P. C. 177; Harrison v. Hall, 1 M. & Rob. 185. See Williams v. Fowler, 1 M'Cl. & Y. 269.

(u) Fabian v. Plant, 1 Show. 183.

(x) 1 M. &. Rob. 186, n.

(y) Ringstead v. Lady Lanesborough, cited 8 T. R. 548; Barwell v. Brooks, ibid.; Corbet v. Poelnitz, 1 T. R. 5; Stedman v. Gooch, 1 Esp. 6; Cox v. Kitchen, 1 B. & P. 338.

(z) Marshall v. Rutton, 8 T. R. 545. And see Hatchett v. Baddely, 2 Bl. Rep. 1079; Lean v. Schutz, 2 Bl. Rep. 1195; Gilchrist v. Brown, 4 T. R. 766; Ellagh v. Leigh, 5 T. R. 679; Hookham v. Chambers, 3 B. & B. 92.

Wife living

separate is

such alteration of character and condition" (a). "We find no authority in the books to show, that a woman may be sued as a feme sole, while the rela- not liable as a feme sole. tion of marriage subsists, and she and her husband are living in this kingdom"(b). Accordingly, it has ever since been held, that a woman cannot be sued alone as long as the marriage remains, neither actually dissolved by divorce or the natural death of the parties, nor virtually dissolved by the civil death of the husband (c). A divorce a vinculo matrimonii, of course, has the effect of placing the woman in the condition of a feme sole, because, the marriage being dissolved ab initio, it is the same as if it had never subsisted (d); but a divorce a mensâ et toro creates no such liability (e).

SECTION III.-IDIOCY AND LUNACY.

lunatic can

The contracts of one who is non compos mentis Idiot or are in general null and void, unless it be for ne- not concessaries (a). Formerly, it was said that a defendant

(a) Per Lord Kenyon, C. J. 8 T. R. 547.

(b) Id. 548.

(c) Vid. supra, p. 35.

(d) Anstey v. Manners, Gow, 10. So, if the marriage be declared to be null from the first on the ground of being invalid according to the laws of the country where it took place; Lacon v. Higgins, 1 D. & R. 38.

(e) Lewis v. Lee, 3 B. & C. 291; S. C. 5 D. & R. 98; Fairthorne v. Blaquiere, 6 M. &. S. 73.

(a) Co. Litt. 247, a.; Shelf. Lun. p. 242; Holt. 357; 1 Sid.

tract.

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