Englishman, who may at any time be recalled by the king (i), and whose return is to be presumed, his mere residence abroad is not tantamount to a civil death; and the wife who contracts in this country is not liable to be sued, and cannot sue as a feme sole (k), although she assumed that character (1). Where the husband is an alien enemy, as he cannot lawfully be in England, the wife may, it seems, contract and be sued as a feme sole, this being a case analogous to the instance of a wife of a person transported (m). It has, however, been decided that a married woman cannot be sued upon her contract, although before it was made her husband became bankrupt, and absconded without appearing to his commission, and continues to reside abroad (n). Where a husband has been abroad, and not heard of for seven years, it shall be presumed he is dead, and the wife is liable (0).

By the custom of London, a feme covert, being a sole trader in the city independently of her husband, may sue and be sued in the city courts, with reference to her dealings as such trader in London (p). But even there, it seems, as well as in the courts of Westminster, the husband must be made a party to the suit for conformity (q). But the wife shall be considered to be the real and substantial party to the suit (r).

The sentence of a court of competent jurisdiction annulling the marriage ab initio, entirely removes the incapacity of the feme, and renders her responsible as if the ceremony of marriage (it being void) had never taken place (s).

There are cases in which, as an exception to the general rule (t), married women have been allowed to join with their husbands in actions upon certain contracts, or instruments, entered into even during the coverture, and with regard to which the wife

(i) See Chit. jun. on Prerog. 24, 5. (k) Marsh v. Hutchinson, 2 B. & P. 226; Farrar v. Grannard, 1 New R. 80. See Williamson v. Dawes, infra. Bogget v. Frier, 11 East, 301. The case of Ringstead v. Lady Lanesborough, 3 Doug. 197, cannot now be considered law.

(1) Id.; M'Namara & Ux. v. Fisher, 3 Esp. R. 18.

(m) Burden v. Keverberg, 2 Mee. & W.65.

(n) Williamson v. Dawes, 3 M. & Scott, 352; 9 Bing. 292, S. C.

(0) Hopewell v. De Pinna, 2 Camp. 113, 273; 1 Jac. 1, c. 11, s. 2; Rowe

v. Hasland, 1 Bla. R. 404; Doe v. Jesson, 6 East, 80; Nepean v. Doe dem. Knight, 2 Mee. & W. 894.

(p) Bac. Ab. Baron & Feme, (M). (q) Candel v. Shaw, 4 T. R. 361; Beard v. Welb, 2 B. & P. 93.

(r) Laughan v. Bewell, Cro. Car. 67; 10 Mod. 6; Beard v. Webb, 2 B. & P. 93, 101. See 3 Chit. Com. L. 37. (s) See Anstey v. Manners, 1 Gow, R. 10. As to divorce a mensá et thoro, ante, 170, 178.

(t) See 1 Chitty Pl., 6th ed., 30; Cosio v. De Bernales, 1 R. & M. 102; ante, 177; Nurse v. Wills, 4 B. & Ad. 739.

is, as it is termed, the meritorious cause of action. Thus, in the instances of an express promise to the wife in consideration of her personal labour and skill, as that she would cure a wound (u); and of a bond (r), or promissory note (y), payable on the face thereof respectively (2) to her, or, it seems, to her husband and herself; she may be joined with him in the action, or he may sue alone. And it seems that in these cases the wife is entitled by survivorship to the money due upon the judgment recovered by both (a).

We have already noticed the cases respecting the effect of a promise of a woman, after her husband's death, to pay a debt contracted by her during coverture (b).

A married woman may be an executrix or administratrix. And where a married woman, being executrix, took a note from her husband and A. B. during coverture, for money lent by her in her representative character to her husband, it was held that she might, after her husband's death, sue A. B. upon the note (c).

6.—OF CONTRACTS WITH Aliens.

An alien ami or friend may legally enter into a contract with a

(u) Brashford v. Buckingham, Cro. Jac. 77, 205; Fountain v. Smith, 2 Sid. 128; Weller v. Baker, 2 Wils.

424.

(x) Day v. Pargrave, 2 M. & Selw. 396, note (b).

(y) Philliskirk v. Pluckwell, 2 M. & Selw. 393.

(z) The declaration should expressly show in what respect the wife has a prominent and particular interest enabling her to join; Bidgood v. Way, 2 Bla. R. 1236; Philliskirk v. Pluckwell, 2 M. & Selw. 396; Nurse v. Wills, 4 B. & Ad. 739, ante. When the wife may join in an action on an agreement with husband and wife in consideration of forbearance by them, id. In the case of a bond or note expressly payable to her, or to both, it would sufficiently appear from the instrument itself, if set out truly in the declaration, without further averment, that she had a particular interest, id. It seems that the wife may always be joined, where in case of the death of her husband she would take the debt or chattel sought

to be recovered by survivorship, Ayling v. Whicher, 6 Ad. & E. 264. Where husband and wife declared for a debt due for a cure effected by the wife during coverture, and the declaration also contained a charge for medicine supplied; upon general demurrer it was held that the wife was improperly joined, as she was not the sole cause of action, the medicines being the property of the husband only; Holmes and Wife v. Wood, cited in 2 Wils.424; noticed by L. Ellenborough, in 3 M. & Selw. 396. The husband may declare alone on a note made to his wife during coverture, alleging it was payable to him, Arnould v. Revoult, 4 Moo. 71, 72. Ante, 159.

(a) 1 Chit. Pl., 6th ed., 32; Co. Lit. 351a, n. (1); Bidgood v. Way, 2 Bla. R. 1239. And it seems she takes by survivorship money due on a decree in chancery in a suit by both; Adams v. Lavender, M'Clel. & Y. 41.

(b) Ante, 33.

(c) Richards v. Richards, 2 B. & Ad. 447.

subject of this realm, either here or abroad, and may, during peace, maintain an action thereon in the English courts (d). But the contract of an alien enemy is absolutely void, and cannot be enforced by him, or any person in trust for his benefit, either at law or in equity (e); unless he came into this country sub salvo conducto, or live here by the king's licence (ƒ). If an alien enemy were allowed to sue in the English courts, on a contract made by him before or during his disability, he would be enabled to withdraw from this country resources which might be rendered and converted to purposes injurious to its interests. It is on this ground that contracts during war, and trading with an enemy, are illegal (g); and therefore not only is an alien enemy unable to sue in this country on a contract made by him, but the contract is not available even against him, in favour of an Englishman, though made abroad; and being void, if made during war, the return of peace does not afford the latter any ground of action (h); but the right of action is only suspended until the return of peace, if the contract were made before the commencement of the war (i). An alien enemy cannot sue a party who holds his property in this country; and therefore a bill drawn by the alien upon, and accepted by, such party, and indorsed by the alien to an Englishman aware of the circumstances, cannot be enforced by the latter against the acceptor (k).

So where an Englishman permanently resides, and is proved to be voluntarily domiciled in a foreign land, the government of which is at war with this country, he so far loses the rights of an Englishman, that he cannot sue in our courts (1). But an action may be maintained here by a neutral, on a promissory note

(d) Bac. Ab. Aliens, (D); but he cannot take a lease of houses, &c., 32 Hen. 3, c. 16; Jevens v. Harridge, 1 Saund. 8, note (1); and see 1 Bla. C. 366; 2 id. 400, 274, and notes, Chitty's ed; see also Vattel's Law of Nations, by Chitty. As to the registration of aliens, see 6 & 7 Will. 4, c. 11, Chit. & Hulme's Statutes, 19.

(e) Brandon v. Nesbitt, 6 T. R. 23; Albretch v. Sussman, 2 Ves. & B. 323.

(f) Id.; Wells v. Williams, 1 Salk. 46; Boulton v. Dobree, 2 Camp. 163. See Chitty's, jun. Prerog. 48, 49. As to forfeiture to the crown of debt to alien, id. 43; Wolf v. Oxholm, 6 M.

& Selw. 102, 103, per Lord Ellenborough.

(g) Potts v. Bell, 8 T. R. 548; The Hoop, 1 Rob. R. 196; Furtado v. Rodgers, 3 B. & P. 200.

(h) Willison v. Patteson, 7 Taunt. 439; 1 Moo. 133, S. C.

(i) Ex parte Boussmaker, 13 Ves. 71; Flindt v. Waters, 15 East, 260; 3 Chitty Com. L. 58, 59.

(k) Willison v. Patteson, 7 Taunt. 439; 1 Moo. 133, S. C.

(1) M'Connell v. Hector, 3 B. & P. 113; The Occan, 5 Rob. 90; The Indian Chief, 3 id. 22; O'Mealey v. Wilson, 1 Camp. 482; Roberts v. Hardy, 3 M. & Selw. 533.

given to him by a British subject in an enemy's country, for goods sold there. Lord Ellenborough said, "The contracting parties were not alien enemies, and it does not follow that the contract was void, though made in an enemy's country. The plaintiffs, who are domiciled in Switzerland, might lawfully sell their goods in Paris; and it is not proved that the defendant, who is a British subject, purchased them there for any illegal purpose (m)." And it appears that an Englishman domiciled in a foreign state, in amity with this country, may lawfully exercise the privileges of a subject of the place where he is resident, to trade with a nation in hostility with this (n). So a native of a foreign state, in amity with this country, taken in an act of hostility on board an enemy's fleet, and brought to England as a prisoner of war, is not disabled from suing, even during his confinement, on a contract entered into by him as such prisoner (o).

Nor can an Englishman, a prisoner at war in an enemy's country, be deemed an alien enemy; therefore, a bill drawn by such prisoner for his support on an Englishman in this country, and indorsed to an alien enemy, is available in the hands of the latter upon the cessation of hostilities (p).

7.-OUTLAWS AND PERSONS ATTAINTED.

A person outlawed in a criminal prosecution or civil suit (2), or convicted of felony, and sentenced to transportation, though he remain in this country confined in the hulks (r), or attainted of certain crimes (s), is civiliter mortuus; he loses the protection of the law, and forfeits his goods and chattels and choses in action to the crown (t). Consequently he cannot sue on a contract, and where there is no remedy, there is no obligation or right, so that in effect he is incapacitated from contracting for his own benefit (u). Such a person may acquire, but he cannot enjoy: he may acquire, not by virtue of any capacity in himself, but because

(m) Houriet v. Morris, 3 Camp.

303.

(n) Bell v. Reid, 1 M. & Selw.

726.

(0) Sparenburgh v. Bannatyne, 1 B. & Pul. 163; The King v. Depardo, 1 Taunt. 28.

(p) Antoine v. Morshead, 6 Taunt. 237; Willison v. Patteson, 7 id. 447, 449; 1 Moo. 133, S. C.

(4) See Tidd, 9th ed. 131.

(r) Ex parte Franks, 7 Bing. 762; 1 M. & Scott, 1, S. C.; ante, 178.

(s) 1 Chit. Crim. L. 730; 1 Burn, J., Chit. ed. 291; 54 Geo. 3, c. 145.

(t) S Bla. Com. 234; Britton v. Cole, 1 Salk. 395; Bac. Ab. Outlawry, (D 2); Chitty, jun. Prerog. 223.

(u) Bullock v. Dobbs, 2 B. & Ald.

258.

if a gift be made to him the donor cannot make his own act void, and reclaim his own gift; and as the donor cannot do this, and as the attainted donee cannot enjoy, the thing vests in the crown by its prerogative (x).

But the right of the outlaw, or party attainted, to the protection. of the law is only suspended, not irrevocably lost. The disability may be removed by a pardon, or reversal of the outlawry or attainder, or it should seem by suffering the punishment inflicted for the crime; and, as a matter of course, the competency to contract and right to sue revive (y).

There can be no doubt that a party may be sued on a contract made by him whilst he stood outlawed or attainted, although his own incapacity has not been removed (z).

8.-BANKRUPts.

1. Of the Effect of a Bankrupt's Certificate, in regard to Contracts made by him before his Bankruptcy.

2. Of his subsequent Promise to pay his prior Debts.
3. Of the Contracts of a Bankrupt whilst uncertificated.

1. Of Contracts before the Bankruptcy.— The certificate of a bankrupt discharges him, but not his partner or a joint contractor (a), from all debts and demands which the creditor has proved, or might have proved, under the commission (b). The creditor's inability to prove his debt, and the continuing responsibility of the bankrupt, are convertible terms; the privilege of the former, and the discharge of the latter, are coextensive and commensurate (c).

(x) Bullock v. Dobbs, 2 B. & Ald. 258. See Co. Lit. 2 (C); The King v. The Inhabitants of Haddenham, 15 East, 465.

(y) Bac. Ab. Outlawry, (D); 1 Chit. Crin. L. 731, 2nd ed.

(2) Macdonald v. Ramsay, Fost. Cr. L. 61.

(a) Before the statute 3 & 4 W. 4, c. 42, s. 9, if one of several debtors became a bankrupt and obtained his certificate, it was necessary to join him as a defendant, or the defendant might have pleaded the non-joinder in abatement. But by that statute it is

rendered unnecessary to join the bankrupt in such case; and if the non-joinder be pleaded in abatement, the bankruptcy and certificate may be replied.

(b) 6 Geo. 4, c. 16, ss. 121, 126. See the bankrupt court act, 1 & 2 Will. 4, c. 56, s. 12, substituting a fiat for a commission, Chit. & Hulme's Stats. vol. i., p. 49.

(c) Ex parte Groome, 1 Atk. 119; Chilton v. Whiffin, 3 Wils. 13; Cowley v. Dunlop, 7 T. R. 565; per Tindal, C. J., in Aflalo v. Fourdrinier, 3 Moo. & P. 748; 6 Bing. 306, S. C.; Ex parte Todd, 2 Deac. 416.