Buller Just. said, "Every case on the facts is peculiar to itself, and this is so different from every other case which has been decided in Westminster Hall, that I consider it as anomalous. The verdict is clearly and strictly right. The wife committed adultery for a considerable time while she was living with her husband; he voluntarily yielded his bed to the adulterer and made no provision for her. Then what colour of defence is left? Knowing of her criminal conduct, and having made no provision for her, he must maintain her as before." It is observed, (e) that where the husband and wife are separated a mensa et thoro by sentence in the Ecclesiastical Court the law allows her alimony at the discretion of the judge, unless she has eloped and lives with an adulterer; and as the common law gives her a writ to recover this, it would seem that the husband is excused from the obligation of her contracts. So, where she is sentenced to a temporary confinement as a punishment for some crime, the husband has been held not liable to her agreement, even for necessaries, if she is kept in an improper place by the covin of the gaoler. (ƒ) But in the case of Manby v. Scott, (g) the judges who argued for the plaintiff laid it down as clear law, that if a wife be prisoner for felony, and the gaoler provides her with food, that the husband may be charged for it. 5. OF CONTRACTS MADE BY A WOMAN LIVING WITH A MAN AS HIS WIFE. If a man and woman live together, and pass in the world as husband and wife, the man shall be liable to all contracts entered into by the woman in the same manner as he would have been liable if they had been actually married. (h) So, in the case of Watson v. Threlkeld, (i) which was an action of assumpsit brought to recover the amount of a quantity of linen drapery goods, furnished by the plaintiff to a woman who passed for the wife of the defendant. The plaintiff proved the delivery to the woman at the defendant's lodgings; that he had himself chosen some of the articles for her; that she used his name, and was called Mrs. Threlkeld in his presence. The defence relied on was, that this woman was not his wife, though she lived with him as such, but was a kept woman, and that that circumstance was known to the plaintiff when the goods were furnished. It was then pressed by the defendant's counsel, that however it had been held, that if a man permitted a woman to use his name and pass for his wife, he thereby subjected himself to the payment of her debts; it had (e) 2 Stra. 1214. n. 1. 1 Bl. Com. 441. Ellah v. Leigh, 5 Term Rep. 679. (f) Vide Fowles v. Dinely, 2 Stra. 1122. (g) 1 Sid. 118. But see 2 Lev. 16. (h) 12 Mod. 372. Vin. Abr. tit. Baron & Feme, D. b. pl. 38. Cowp. 233. (i) 2 Esp. Rep. 657. only gone to those cases where the tradesman had not known the real situation of the parties, but believed the woman to be actually married; that it was meant as a punishment on the man, who, by permitting a woman to use his name, had thereby given her a false credit, derived from his situation in life, as passing for his wife; but in the present case no such deceit was practised, no such false colours held out; the plaintiff knew that the defendant was not married, so that he could not look to his credit, but to the woman's own, and that the plaintiff should therefore be nonsuited. Lord Kenyon Ch. J. "It is certain that if a man has permitted a woman, to whom he was not married, to use his name, and pass for his wife, and in that character to contract debts, he is liable for her debts; and I am of opinion that he is liable, whether the tradesman who furnished the goods knew the circumstances to be so or not. He gives her a credit from his name and cohabitation, and it is not to be supposed that the tradesman could look to the credit of a woman of that description, and not to that of the man by whom she was supported: I shall hold the credit to be given to him, and that he is liable." His lordship added, "What, however, I have said must not be taken to be the case of a common strumpet, who may assume the name of a person, without his authority, from having casually known him; it must be where the man permits the woman to assume his name, where she lives in his house, and is part of his family." So, where a woman marries a second husband before the death of the first (she believing the first to have been dead), and the second being wholly ignorant of the fact: it was held by Parker Ch. J. (k) "That for what she acquired during the cohabitation, he would esteem her as a servant to the second husband, and that he was entitled to the benefit of her labour." 6. HOW HUSBAND AND WIFE MUST SUE AND Upon all contracts made with the wife before marriage, the husband and wife must sue and be sued jointly. (7) So, in the case of rent, where part accrues before and the remainder after the marriage, both must be joined. (m) So, they ought to sue jointly in actions upon promises, which arise during coverture, where the wife may have an action for the same cause, if she survives her husband. Thus, if a feme covert has a mill, and one agrees with the husband and wife to grind all his corn at the mill, under (k) 1 Stra. 80. (1) 2 Com. Dig. tit. Baron & Feme, V. Y. Mitchinson v. Hewson, 7 Term Rep. (m) Richardson v. Hall, 3 Mo. Rep. 307. a penalty in default thereof, they ought to join; for the action would survive to her. (n) So, if a man promises to give a 100l. to the wife of J. S. they ought to join in action for the recovery thereof. (0) But the husband may sue alone upon a bill of exchange given to the wife before marriage, but which became due afterwards. (p) So, in an action for any thing due to the wife en auter droit, they ought to join: as if they sue for a debt, &c. to the wife as executrix or administratrix. (9) But, on a promise to pay a husband money due to his wife as executrix in consideration of his forbearing to sue for it, the husband alone ought to sue. (r) When the wife is the meritorious cause of action, it has been ruled, (s) that the husband alone may sue, or the husband and wife may join, though damages only are recovered: as in assumpsit upon an express promise to the wife, after coverture, to pay her 107. in consideration of a cure to be performed by her; the husband and wife may join, or the husband alone may sue. So, upon a promise to pay 81. per annum to the husband and wife during coverture, they may join; or the husband alone may sue. (t) But when the wife cannot have an action for the same cause, if she survive her husband, the general rule of law is, that the action must be by the husband alone. (u) As, in an indebitatus assumpsit on an implied promise to pay for work done by the wife during coverture; the law presumes no promise to have been made to the wife; for she is the servant of her husband; and he is not only at the charge of the materials to carry on the work, but is also obliged to maintain his wife; and therefore it is the law considers the promise to have been made to him only. (v) CHAPTER VII. OF CONTRACTS WITH INFANTS: AND OF THE LIABILITY OF PARENT OR CHILD FOR NECESSARIES. 1.0 F CONTRACTS WITH INFANTS.] - By the common law a person is called an infant till the age of 21 years. (a) And all contracts with infants, except for necessaries, are either void or voidable; (b) the reason of which is, the indulgence the law has thought fit to give infants, who are supposed to want judgment and discretion in their contracts and transactions with others, and the care it takes of them in preventing them from being imposed upon or overreached by persons of more years and experience. (c) Therefore if an infant be in trade, and contract a debt in buying goods, &c. for his trade, it is not recoverable against him, though he thereby gains his living. Thus in the case of Whittingham v. Hill, (d) which was an action of assumpsit for goods sold; the defendant pleaded that he was an infant: the plaintiff replied that the goods were for the necessary diet and apparel of the defendant and his family; the defendant rejoined that he kept a mercer's shop at Shrewsbury, and bought the goods to sell again, and traversed that he bought them pro necessario, &c.: the plaintiff thereupon demurred. And after argument, it was adjudged for the plaintiff. But afterwards upon a writ of error, the judgment was reversed. And the Court said: "This buying for the maintenance of the defendant's trade, though he gained thereby his living, shall not bind him, for an infant shall not be bound by his bargain for any thing but for his necessity, viz. diet and apparel, or necessary learning." And the rule of law is said (e) to be the same in regard to a debt incurred in repairing houses belonging to an infant. (a) Co. Lit. 171. b. (b) Com. Dig. tit. Enfant, B. 5. C. 2. (c) Bac. Abr. tit. Infancy and Age. I. 3. (d) Cro. Jac. 494. 2 Rol. Rep, 45. See also 1 Rol. Abr. 729.1, 15. Dy. 104. b. 2 Stra. 1083. 2 Esp. Rep. 480. n. 15. So, a bill of exchange or other written contract made by an infant, is voidable by the infant. Thus, in the case of Williams v. W. Harrison and R. Harrison, (f) which was an action brought upon a bill of exchange drawn by the defendants, and protested for non-payment. R. Harrison, one of the defendants, pleaded infancy in bar; to which the plaintiff demurred, upon the ground that infancy was no bar to this action, it being founded on the custom of merchants. But the court without argument, over-ruled the demurrer, for they clearly held, “That infancy was a good bar notwithstanding the custom; for here the infant is a trader, and the bill of exchange was drawn in the course of trade, and not for any necessaries; so judgment was entered, that the plaintiff Nil capiat per Billam versus R. Harrison. And Holt, Ch. J. cited a case, "That where an infant keeps a common inn, yet an action on the case upon the custom of inns will not lie against him, which is stronger than the principal case." But although a bill be drawn, indorsed, or accepted, by a person under it will nevertheless be valid against all other who are age, persons competent parties to the instrument. (g) So, a bill drawn upon an infant, but accepted after he came of age, is valid against the acceptor himself. (h) If an infant submit a matter to arbitration, and an award is made against him, he may perform the award, or avoid it at his election, as he may all other his contracts. (i) : A contract made with an infant cannot be converted into a tort so as to make him liable in that form of action. Thus, if one deliver goods to an infant upon a contract, &c. knowing him to be an infant, he shall not be chargeable in trover and conversion, or any other action for them; the infant being incapable of making any contract but for necessaries ; therefore, such delivery is a gift to the infant: but if an infant without any contract wilfully takes away the goods of another, trover lies against him it is also said, that if he takes the goods under pretence that he is of full age, trover lies, because it is a wilful and fraudulent trespass. (k) So, in Jennings v. Rundall, (l) which was a special action on the case in tort; and the plaintiff declared that at the defendant's request he had delivered a mare to the defendant to be moderately ridden, but that the defendant maliciously intending, &c. wrongfully and injuriously rode the mare so that she was damaged, &c. It was holden, that the defendant might plead his infancy in bar, the action being founded on a conAnd Lord Kenyon Ch. J. said: "The law of England has very tract. (f) Carth. 160. Holt. 359. S. C. (g) Taylor v. Croker, 4 Esp. Rep. 187. See also 2 Atk. 181, 2. (h) Stevens v. Jackson, 4 Campb. 164. (i) Bac. Abr. tit. Infancy and Age, I.3. (k) See 1 Sid. 129. 1 Lev. 169. Keb. 905. 913. (1) 8 Term Rep. 335. See Green v. Greenbank, 2 Mar. Rep. 485. |