for this reason, her death pending an action commenced by both for the recovery of a debt which accrued to her dum sola, abates the suit (o) and the administrator of the husband, who survived the wife, and died without taking out letters of administration, cannot recover her choses in action; and in order to recover them, administration should be taken out to the wife (p). If the wife survive her husband, and the debt or demand accruing upon her agreement before coverture is outstanding, she is entitled to it, and his personal representative has no claim (g).

If a feme sole marry pending a suit brought by her (~); or sue alone upon a contract made before marriage (s); the defendant cannot avail himself of the coverture, except by a plea in abate

ment.

The liability of a husband upon a contract entered into by his wife before coverture, is also of a conditional nature. For although he is liable jointly with her (t) during the marriage, that is, during her life, upon all her contracts made dum sola, how improvident soever they may be, and although he may have received no fortune with her; yet he cannot be sued alone, even upon an express subsequent promise by himself, unless there be some new consideration for the same, accruing to him, or causing an inconvenience or delay to the creditor (u). And upon her death, his personal liability, that is, his responsibility in the

liskirk v. Pluckwell, 2 M. & Selw. 395; Heard v. Stamford, Rep. T. Talb. 173. If husband and wife jointly sue on a cause of action, accruing even after the marriage, in a case and under circumstances which justify him in joining her as a plaintiff, and both recover judgment, she takes the debt by survivorship, if he die before it is received, Bidgood v. Way, 2 Bla. R. 1236, 1239; Co. Lit. 351 a, n. (1); 1 Chitty Pl. 5th ed. 35, 36.

(0) Checchi v. Powell, 6 B. & C.

253.

(p) Betts v.Kimpton, 2 B. & Ad. 273. (q) Co. Lit. 351a; 1 Rol. Ab. 350. Com. Dig. Baron & Feme, E. 3. See Adams v. Lavender M'Clel. & Y. 41, as to effect of decree in equity.

(r) Bac. Ab., Abatement (G); Morgan v. Painter, 6 T. R. 265.

(3) Milner v. Milnes, 3 T. R. 631; 1 Chitty Pl. 5th ed. 36, 37.

(t) The declaration must not state a promise by the husband and wife after the marriage to pay the debt, Morris v. Norfolk, 1 Taunt. 212; Pittam v. Foster, 1 B. & C. 248; 2 D. & R. 263, S. C. As to arresting her or taking her in execution, see Tidd, 9th ed. 194, 1026. Slater v. Millo, 5 M. & P. 603, 7 Bing, 606, S. C.

(u) Bac Ab., Baron and Feme (E); Heard v. Stamford, Cas. T. Talb. 173; 3 P. Wms. 409, S. C.; Mitchinson v. Hewson, 7 T. R. 348; 1 Chitty Pl. 5th ed. 33. In Richardson v. Hall, 1 B. & B. 50, it was held, that a husband could not be sued in assumpsit for use and occupation, to recover half a year's rent, due upon a demise to his wife dum sola, the marriage having occurred in the middle of the current half-year for which the arrears were claimed.

K

character of husband, is absolutely destroyed, although he may have received a large fortune with her (x). The husband is only liable in such case as administrator of his wife, in the event of his administering to choses in action belonging to her, and not reduced into possession by him during the coverture (y).

Upon the same principle, the wife, if she survive, is liable upon contracts made by her before her marriage (z).

2ndly. Of the Contracts of Married Women, made After Marriage.

1. Of the husband's rights thereon.-Generally speaking, a married woman cannot acquire any legal right to personal property during her coverture. If she have money or goods in her possession, though obtained by her own exertions, and she lend the one or sell the latter, the right to recover the debt, or value of the property thus parted with, vests in the husband. He is even entitled to claim the earnings of her personal labour (a): and if a bond, bill of exchange, or promissory note, be made payable to her during the marriage, he may interpose, and separately claim and recover the amount (b).

Where a party actually receives money or goods of the husband under a contract with the wife, there can be no doubt of the husband's right to follow such property, and obtain redress from the party, though the latter was not aware at the time of the marriage of the feme. In the case of executory agreements in which the other contracting party was aware of the marriage of the feme, and yet contracted with her without consulting the husband, it would probably be considered that the husband, although he had not invested his wife with a prior authority to make the contract, would have the right of election either to repudiate the contract, or sanction it as entered into with his assent through the agency of his wife. It would seem that it could not in such case be con

(x) Id.; Com. Dig., Baron and Feme (2 C), and (N). (y) Id.

(z) Mitchinson v. Hewson, 7 T. R. 350; Woodman v. Chapman, 1 Camp.

189.

(a) Com. Dig., Baron and Feme (W); Bac. Ab., Baron and Feme (K); Bidgood v. Way, 2 Bla. R. 1239; Car

penter v. Faustin, 1 Salk. 114; Holmes v. Wood, 2 Wils. 424; Chambers v. Donaldson, 9 East, 472; 1 Chitty Pl. 5th ed. 33.

(b) Id.; Ankerstein v. Clarke, 4 T. R. 616; Philliskirk v. Pluckwell, 2 M. & S. 393. However, in some of these instances, he may elect to join her as a plaintiff with him, post, 149.

tended with success, that the contract was void ab initio as to all parties, upon the ground that there was not a mutuality of obligation when it was entered into (c). But if the party entered into the contract with the feme in ignorance of her marriage, and she had not at the time any authority to bind the husband, and did not profess to act for him, it might perhaps be considered, at least in the case of a contract executory on both sides, that the latter had not the option either to recognize or abandon the agreement, and that it would not bind the party thereto (d).

2. Of the liability of the husband upon his wife's contracts during coverture.

1. In general.-A married woman has no original power or authority, by virtue of the marriage, to bind her husband by any of her contracts. The liability of a husband, on his wife's engagements during marriage, does not depend upon the principle, that he becomes entitled, by the marriage, to her property, for he is responsible, although she brought him no property. It rests solely on the idea that they were formed by his authority; and, if his assent do not appear by express evidence, or by proof of circumstances from which it may reasonably be inferred, he is not liable. In this respect, indeed, the relation of husband and wife differs not from that of master and servant. A wife, with respect to certain contracts, namely, such as relate to necessaries for her husband's family, may be regarded as his general agent; possessed of a general and presumed authority, arising from the duty and liability of the husband to provide his wife and children with necessaries; and the presumption that he assents to arrangements for their benefit, of which he cannot but be conusant. The contract is the agreement of the husband, by the intervention of the wife; not the personal contract of the wife. With respect to other contracts, she is not his agent, unless his authority be expressly proved (e). Even where circumstances are proved from which the law would, generally speaking, presume that he had empowered his wife to contract for him; yet, if the presumption

(c) See ante, 10, 14; Smith v. Plomer, 15 East, 607, 610, 611. Sed Qu.

(d) See Saunderson v. Griffiths, 5 B. & C. 909; 8 D. & R. 643, S. C.; cited, ante, 15, 6.

(e) She may be his agent with his express assent, to indorse bills, &c., even in her own name, for him; see Barlow v. Bishop, 1 East, 432; Prestwick v. Marshall, M. & P. 513; 7 Bing, 565, S. C.

be rebutted and negatived by express evidence, no responsibility on his part exists (f).

A feme covert generally cannot bind, or charge her husband by any contract made by her without his authority or assent, precedent or subsequent, express or implied (g).

"If a wife run away from her husband, he shall not be liable to any of her contracts; for it is the cohabitation which is evidence. of the husband's assent to contracts made by his wife for necessaries. The husband is only liable upon account of his own assent to the contract of the wife, of which assent cohabitation causes a presumption. The wife has no power originally to charge her husband" (h).

And, as the wife's power is altogether founded on the basis of agency, it follows that her husband's death revokes her implied authority; and she then ceases to have the power to bind his estate in futuro, even by continuing to order necessaries for herself and children, although she, and the tradesman furnishing such necessaries, were ignorant, at the time, of his death. And in such case, his executor will not be liable for necessaries supplied after his decease (i).

2. This subject may perhaps be better explained, by considering the extent of the husband's liability upon his wife's contracts, entered into ;

1st, During cohabitation ;

2ndly, During their separation by mutual consent, or in consequence of the husband's act or misconduct;

3rdly, During their separation occasioned by the act or misconduct of the wife.

1st. Cohabitation is strong presumptive evidence of the husband's assent to agreements made by her for the supply of goods, for herself or her husband's household, during that period (k).

(f) Manby v. Scott, 1 Sid. 109 ; 1 Lev. 4; 12 Mod. 128, S. C.; 1 Salk. 118; Bac. Abr., Baron and Feme (H); Com. Dig., Baron and Feme (Q); Hayne v. Rollaston, 4 Burr. 2177; Bolton v. Prentice, 2 Stra. 1214, note (1); Waithman v. Wakefield, 1 Camp. 121; Holt v. Brien, 4 B. & Ald. 255, per Best, J.; Montague v. Benedict, 3 B. & C. 631; 5 D. & R. 532, S. C. When the wife's admission binds the

husband, Emerson v. Blonden, 1 Esp. R. 142; Clifford v Burton, 1 Bing. 199.

(g) Manby v. Scott, 1 Mod. R. 125, per Hyde, J.; Montague v. Benedict, 3 B. & C. 631; 5 D. & R. 532, S. C.

(h) See Manby v. Scott; and per Holt. C. J., Etherington v. Perrott, 2 Lord Raym. 1006.

(i) Blades v. Free, 9 B. & C. 167. (k) Montague v. Benedict, 3 B. & C. 631

And it seems that she has implied authority to hire servants necessary and suitable to her station (1). Where a husband is living in the same house with his wife, he is liable to any extent for goods which he permits her to receive there; she is considered as his agent, and the law implies a promise on his part to pay the value (m). And this liability depends, not strictly on the real circumstances of the husband, but on the appearance which he allows his wife to assume in society. When a tradesman is thereby deceived, the loss must fall upon him who connived at the deception. Whatever may be the husband's degree, he sends his wife out into the world with a credit, corresponding to the rank in life in which, by his sanction, she affects to be placed (r).

So strong is this presumption of assent, during cohabitation, that even the adultery of the wife, during that period, does not destroy it, as to her contracts after the adultery, and before the husband and wife separated (o). And where it appeared that the defendant's wife having committed adultery, he separated himself from her, but left her in his house with two children, bearing his name, but without making any provision for her in consequence of the separation; and she continued to reside in the house in a state of adultery; it was held that the husband was liable for necessaries furnished to her in the house in which she was left with the children; it not appearing that the plaintiff knew, or might readily have known, the circumstances under which she was living. But the Chief Justice Eyre observed, "if the defendant, in another action brought against him by some other tradesman, shall be able to establish the notoriety of his wife's situation, he may defend himself:" and Mr. Justice Buller remarked, that the case was anomalous (p).

"In an action against Sir Francis Withers (q), Serjeant at Law, and heretofore Justice of the King's Bench, for wares sold and delivered by the plaintiff to the wife of the defendant, it appeared that the goods were silver fringes and lace for a petticoat, and side-saddle; and that they were all delivered within the compass

(1) White v. Cuyler, 1 Esp. R. 200; 6 T. R. 176, S. C.

(m) Per Lord Ellenborough, C. J., Waithman v. Wakefield, 1 Camp. 121.

(n) Per Lord Ellenborough, C. J., id. (v) Robinson v. Greinold, 1 Salk.

119; 6 Mod. 172, S. C., per Holt, C. J.; Bac. Ab., Baron and Feme (H).

(p) Norton v. Fagan, 1 B. & P. 226. (q) Martin v. Withers, 5 W. & M.; Skinner's R. 348.