but if he holds them out to the world as part of hs fumiy, he will be considered as standing in loco parentis, and have even on a contract made by his wife during his absence abroad for the maintenance and education of such children (). Maintenance by the second husband of the children of wife by former husband is a good consideration for a promise by such children, when they come of age, to repay the expense of their maintenance. Cooper v. Martin, 4 East, 76. See Rawlins v. Vandyke, 3 Esp. N. P. C. 252, Lord Eldon's opinion as to how far a father is liable for necessaries furnished to his children, living with the mother apart from the father. The father of a bastard child is liable for its nursing and board, if he adopts it as his own, although an order of filiation has not been made on him. Heskett v. Gowing, 5 Esp. N. P. C. 131.

II. In what Cases a Feme Covert may be considered as a Feme Sole.

It is now clearly established, notwithstanding former decisions (a) to the contrary, that a feme covert cannot bring an action or be impleaded as a feme sole, while the relation of marriage subsists, and she and her husband are living in this kingdom, notwithstanding she lives separately from her husband, and has a separate maintenance secured to her by deed. This point was solemnly de termined, (after two arguments before the judges in the Exchequer Chamber,) in Marshall v. Rutton, 8 T. R. 545. A woman who has even declared herself to be a feme sole, and as such has executed deeds and maintained actions, if herself sued as a feme sole, is not thereby estopped from setting up a defence of coverture (7) A woman divorced a mensâ et thoro for adultery, and living separate from her husband, cannot be sued (c) as a feme sole. But the rule of law, which has considered a married woman as incapable of sumg or being sued, without her husband, admits of some modification from particular circumstances: 1. By the custom of the city of London, a feme covert being a sole trader, may sue or be sued m the city courts as a feme sole, with reference to her transactions i London: but even there the husband must be made a party to the suit for conformity. By the custom a London, A tome sole merchant is where the feme trades on track, I which her husband does not intermeddle. anan solis n that track then the feme shall be sued, and, names, only for con

e v. Carr, 3 Esp. N. P.L.

nne,

Esp.

66

formity; and if judgment be given against them, execution shall be against the feme only." Langham v. Bewett, Cro. Car. 68. This custom is one of those customs called executory customs, the meaning of which expression is, customs united to the courts of the city of London. They are pleadable in London, and not elsewhere, except so far as they may be made use of in the superior courts by way of bar." Per Lord Eldon, C. J., delivering the judgment of the court in Beard v. Webb, in error, Exchequer Chamber, 2 Bos. & Pul. 98. The judgment here referred to is very elaborate, and contains a fund of useful information on this subject. A feme covert, sole trader in the city of London, cannot sue (d), or be sued (e), in the courts at Westminster, without her husband.

2. A wife may acquire a separate character by the civil death of her husband, by exile (f), and formerly by profession and abjuration of the realm. See 1 Inst. 133, a, where Sir Edward Coke says, "that an abjuration, that is, a deportation for ever into a foreign land, like to profession, is a civil death; and that is the reason that the wife may bring an action, or may be impleaded, during the natural life of her husband. And so it is, if by act of parliament the husband be attainted of treason or felony, and saving his life, is banished for ever, as Belknap, &c. was; this is a civil death, and the wife may sue as a feme sole. But if the husband, by act of parliament, have judgment to be exiled for a time, which some call a relegation, that is not a civil death. Every person who is attainted of high treason, petit treason, or felony, is disabled to bring any action; for he is extra legem positus, and is accounted in law civiliter mortuus.” 1 Inst. 130, a.

3. Where the husband has been transported for a term of years, before the expiration of which the debt was contracted, and sued for; Yates, J., thought that the transportation suspended the disability of the wife, and that she might be sued as a feme sole (g). Lord Eldon (h), commenting on this case, having said, that in the cases of abjuration, profession, &c. which amounted to a civil death, he thought he understood the situation in which the wife was placed, for the fiction of law, which considered the husband as civilly dead, put the wife in the same situation as if he were actually dead; then proceeded to observe that, "transportation for a term of years might give rise to many difficulties with respect to the enjoyment of the husband's estate, both real and personal; but, besides the difficulties which might arise during the term of transportation,

(d) Caudell v. Shaw, 4 T. R. 361. (e) Beard v. Webb, 2 Bos. & Pul. 93. (f) Belknap's case, 2 Hen. IV. 7, a ; it appears by the year book, 1 Hen. IV. 1, a, that Belknap was banished to Gascony, there to remain until he attained the king's favour, which Sir E. Coke considered as a

banishment for ever.

(g) Sparrow v. Carruthers, cited in Lean v. Schutz, 2 Bl. R. 1197, and in Corbett v. Poelnitz, 1 T. R. 7.

(h) Marsh v. Hutchinson, 2 Bos. & Pul. 231.

another difficulty of equal importance occurred, where the wife had contracted debts after the period of her husband's transportation had elapsed, but before his actual return to his country. In the case of Sparrow v. Carruthers, Mr. Justice Yates seemed to have treated it as a material circumstance in evidence, that the time of transportation was not expired, and he did not give any opinion as to what would have been the situation of the parties if it had been expired. The court could not presume to say how Mr. Justice Yates would have decided, had the husband continued to reside abroad, after the period of his transportation had expired, or had only remained there to arrange his affairs, with a view of returning to his country when he had so done." Since the preceding observations were made, the following case was decided at Nisi Prius in 1801 in assumpsit for goods sold and delivered (i), the defence was, that the plaintiff was a married woman. The plaintiff's counsel answered this case by producing the record of the husband's conviction for felony in March, 1794, and of a sentence of transportation for seven years; whereupon it was insisted, on the part of the defendant, that the sentence being for seven years, from March, 1794, that time was now expired, so that the husband was competent to sue. But Lord Alvanley, C. J., said, that by the record of the conviction and sentence, there was conclusive evidence to support the right of action in the plaintiff as a feme sole, and though the term of his transportation had expired, if in fact he had not returned, the right of action remained; but that, if the defendant meant to rely on the circumstance of the husband having returned, the proof of that lay on the defendant. Evidence to this effect not being offered, the plaintiff had a verdict.

4. Where the husband is an alien, who has deserted this kingdom, leaving his wife to act here as a feme sole, the wife may be charged as a feme sole for contracts made after such desertion. In assumpsit for goods sold and delivered (j), the defendant pleaded that she was covert of the Duke de Pienne. It appeared in evidence, that the duke, who was an alien, had gone abroad in the year 1793, with an intention to return in four months, but had not returned; during his absence the defendant had kept house, and paid bills on her own account and in her own name. Lord Kenyon, C. J., said, this case came within the principle of the common law, where the husband had abjured the realm. If the husband had been absent for some time, and then returned, and paid bills contracted by the wife in his absence, and again left the kingdom, he should hold the defendant not liable; but here was a desertion of the kingdom, and an absence for some years; he was no longer domiciled here, and, in the interval, the wife was supplied with those

(i) Carrol v. Blencow, June 3, 1801, Sittings after East. T. C. B.; coram Alvanley, C. J., 4 Esp. N. P. C. 27.

(j) Walford v. The Duchess de Pienne, June 7, 1797, Middlesex Sittings, 2 Esp. N. P. C. 554.

are not necessaries, must depend on the rank and situation of the husband. That where they live separate, the person who gives credit to the wife is to be considered as standing in her place, inasmuch as the husband is bound to maintain her; and the spiritual court, or a court of equity, will compel him to grant her an adequate alimony: but if she elope from her husband, and live in adultery; or if, upon separation, the husband agrees to make her a sufficient allowance, and pays it in either of those cases the husband is not liable; because, in the former case, she forfeits all title to alimony; and, in the latter, has no further demands on her husband. And as, in all cases, the creditor is to be considered as standing in the wife's place, it imports him, when the wife lives apart from her husband, to make strict inquiry as to the terms of separation; for in such cases he must trust her at his peril. In the present case, the defendant and his wife had separated, and he had agreed to make her an allowance, but had never paid it; the jury, therefore, under his lordship's directions, found a verdict for the plaintiff. N. In a similar case of Turner and Winter, his lordship nonsuited the plaintiff, because on separation the defendant had agreed to make an allowance to his wife, and had regularly paid it; notwithstanding the plaintiff had no notice of the transaction. But the allowance must be sufficient according to the degree and circumstances of the husband; and the adequacy of the allowance is a question of fact for the jury (2).

A mere agreement for a separate allowance, without payment, is not sufficient to exempt the husband from this liability: Husband and wife having agreed to separate (a), a deed of separation was executed, (between the husband on the first part, his wife on the second part, and a trustee, the sister of the wife, on the third part,) wherein the husband covenanted with the trustee, to pay the wife, during the separation, a weekly allowance; which she agreed to accept, in full satisfaction of her maintenance, provided that if the husband should pay any debt which his wife, during the separation and payment of the annuity, should contract, it should be lawful for him to withhold payment of the weekly allowance, until he should be reimbursed: the wife, upon the separation, went to live with the trustee, who supplied her with necessaries; the husband having failed to pay the weekly allowance, the trustee brought an action of indebitatus assumpsit against him for the amount of the

(z) Hodgkinson v. Fletcher, 4 Campb. 70; per Lord Ellenborough, C. J., Liddlow v. Wilmot, 2 Stark. N. P. C. 86; Ld. Ellenborough, C. J., Wilson v. Smyth, Middlesex Sittings after M. T. 1 Will. IV. S. P. per Tenterden, C. J., and afterwards by court, 1 B. & Ad. 801, where alimony had been regularly paid after termination of suit in Ecclesiastical Court, but pending the period during which the debts had

been contracted; and it was proved, that if the husband had omitted to pay, a new decree could, by a short process, have been obtained from the Ecclesiastical Court, but that such application was not usually made, unless payment of the alimony were discontinued.

(a) Nurse v. Craig, 2 Bos. & Pul. N. R.

148.

necessaries: it was holden by Chambre, Rooke, and Heath, Js., that, although the trustee had another remedy, and might have brought an action on the deed, yet assumpsit was maintainable, on the ground that there was a common law obligation on the husband to provide necessaries for his wife, although she lived apart from him; that where the law imposed a duty, it raised a promise on the part of the person on whom it was imposed to discharge it; and that the mere covenant, without payment, was not sufficient to exempt the husband from this liability. Sir J. Mansfield, C. J., expressed an elaborate opinion to the contrary, observing, that a general provision for the separate maintenance of the wife, whether the husband paid it or not, deprived the wife of the advantage of the common law, and prevented the husband from being sued either in assumpsit or debt for necessaries furnished to his wife. But if the separate allowance be paid, it is sufficient, although the separation be not by deed or writing (b); and the husband is not liable, although no part of the separate maintenance be supplied by him (c), provided it is sufficient. The husband, however, cannot avail himself of the wife's receipts as evidence of the payment of the allowance (d). A divorce a mensâ et thoro for adultery on the part of the husband, with a decree for alimony to the wife, will not discharge the husband from his liability to pay for necessaries supplied to the wife, if the alimony be not paid (e)."

By deed of three parts, between husband, wife, and trustee, reciting that differences existed, and that the husband and wife had agreed to live separate, the husband covenanted to pay an annuity to the wife, during so much of her life as he should live, and the trustee covenanted to indemnify the husband against the wife's debts, and that she should release all claim of jointure, dower, and thirds. It was holden (f), that this deed was legal and binding, and that a plea by the husband, that the wife sued in the Ecclesiastical Court for restitution of conjugal rights, and that he put in an allegation and exhibits, charging her with adultery, and that a decree of divorce, a mensâ et thoro, was in that cause pronounced, was not a sufficient answer to an action, by the trustee, for arrears of the annuity. "There are some deeds of separation which are legal; some which are illegal; illegality is not to be presumed, and unless we necessarily see that a transaction is illegal, we are not to put an unfavourable construction upon it." Per Bosanquet, J., Waite v. Jones, 1 Bingh. N. C. 664, 5.

“If a husband improperly compels his wife to leave his house, he thereby gives her power to pledge his credit for necessaries; but if

(b) Hodgkinson v. Fletcher, 4 Campb. 70, per Lord Ellenborough, C. J.

(c) Per Lord Tenterden, C. J., Clifford v. Laton, M. & Malk. 101.

(d) s. c.

(e) Hunt v. De Blaquiere, 5 Bingh. 550. (f) Jee v. Thurlow, 2 B. & C. 547; Baynon v. Batley, 8 Bingh. 256, S. P. See also Wilson v. Mushett, 3 B. & Ad. 743.