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4. Where the husband and wife do not cohabit, and the act of separation is mutual, or by operation of law. Agreement An agreement between husband and wife to live P°'»te u separate, is a perfectly legal agreement (g). Where kgal" the husband and wife separate by mutual consent, whether it be by deed of separation or otherwise, Husband the husband will not be liable for her debts, prohe'pavs'6 'f vided he secures to her an adequate allowance (h). 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 (z); and if the husband fails to pay the stipulated allowance regularly, his liability is not discharged (£). 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). 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 (o).
(g) Schoky v. Goodman, 1 C. &. P. 36 ; S. C. 8 B. Moore, 350. 1 Bingh. 349.
ih) Nurse v. Craig, 2 N. R. 148; Todd v. Stokes, 1 Ld. Raym. 444; S. C. 1 Salk. 116; Ozardv. Durnford, Selw. N. P. 279; Stedman v. Gooch, 1 Esp. 6; Craggv. 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.
(Jc) Nurse v. Craig, 2 N. R. 148; Hunt v. Be Blaquiere, 5 Bingh. 550 ; S. C. 3 M. & Payne, 108.
(7) Turner v. Winter, Selw. N. P. 280.
(m) Rawlins v. Vandyke, 3 Esp. 250.
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 (y). 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).
Even where the husband's liability is discharged Express by allowing his wife a fund for her separate main- ^umb tenance, an action for goods sold may be main- thehus au' tained against him on an express promise to pay
(n) Liddlow v. Wilmot, 2 Stark. N. P. C. 86. (o) Thompson v. Hervey, 4 Burr. 2177.
(p) Durant v. Titley, 7 Price, 577; Hindley v. Marquis of Westmeath, 6 B. & C. 200.
(y) Burrett v. Booty, 8 Taunt. 343. (r) Keegan v. Smith, 5 B. & C. 375. (s) Willson v. Smyth, 1 B. & Ad. 801.
the debt contracted by her (t). It is difficult to see what is the consideration to support such promise (m) ; 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 bo treated as a feme sole, and sued on her own contracts (3/). But this doctrine has been overruled by a case, resolved upon the unanimous opinion of the judges after great deliberation (z). 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) Hornbuekle 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; Hoohham v. Chambers, 3 B. 6c B. 92.
such alteration of character and condition "(a).
"We find no authority in the books to show, that a wife living
i /• i separate is
woman may be sued as a feme sole, while the rela- not liable as 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 mensd et toro creates no such liability (e).
Section III.—Idiocy And Lunacy.
The contracts of one who is non compos mentis idiot are in general null and void, unless it be for necessaries (a). Formerly, it was said that a defendant
(a) Per Lord Kenyon, C. J. 8 T. R. 547. (6) 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. Btaquiere, 6 M. &. S. 73.
(a) Co. Litt. 247, a.; Shelf. Lun. p. 242; Holt. 357 ; 1 Sid.
could not avail himself of the plea of idiocy or lunacy, as a defence to any action, on the ground that no one should be permitted to stultify himself (b). But the law seems now to be different, and such a defence would always be a bar to any action, where it appears that the plaintiff has been guilty of fraud or imposition. In an action for goods sold and delivered, where the plaintiff was proved to have had knowledge of the vendee's insanity, and to have taken advantage of it, he was nonsuited (c). But idiots or lunatics, as much as Except for infants, may bind themselves by a contract for ne
necessaries. » »
cessaries (d); and insanity is no defence where imposition cannot be imputed to the plaintiff (e). Even equity will not relieve merely on the ground that the vendee was of a weak mind, because the Court will not measure people's understandings and capacities (/); otherwise, if there have been fraud and imposition (g).
In a case (h) decided in K. B., the liability of a
(4) Beverley's case, 4 Co. Rep. 124; Stroud v. Marshall, Cro. Eliz. 398; Cross v. Andrews, Cro. Eliz. 622; Yates v. Boen, 2 Sir. 1104.
(c) Levy v. Baker, 1 M. & Malk. 106 n. ; Sentance v. Poole, 3 C. & P. 1.
(rf) Sid. 112 ; Holt. 357 ; Shelf. Lun. 410 ; Fonbl. Eq. 48.
(e) Browne v. JodJrell, 3 C. & P. 30; S. C. 1 M. & Malk. 105; Niett v. Morley, 9 Ves. Jun. 478.
(/) Osmond v. Fitzroy, 3 P. Wms. 130.
(g) Bennett v. Fade, 2 Atk. 324; M'Diarmid v. M'Diarmid, 3 Bligh, N. S. 374; Fonbl. Eq. 64.
(//) Bagster and others v. Portsmouth (Earl), 7 D. & R. 614; S. C. 5B. & C. 170; 2 C. & P. 178.