5.-MARRIED WOMEN. I. Of the effect of marriage upon the contract of a feme sole. 2. Of the liability of the husband upon such contracts. 2ndly. On contracts made by the wife during coha- 3rdly. During separation by consent, or in consequence of the husband's act or misconduct. 4thly. During separation, by reason of the act or misconduct of the wife. III. When a married woman may be considered as a feme sole, with regard to her contracts during marriage. I. Of the Effect of Marriage, upon the Contract of a Feme Sole. The benefit to be derived from an unexecuted contract, entered into with a feme sole, or the right to sue thereon, (being a chose in action (c),) does not vest absolutely in her husband; he acquires only an inchoate or conditional right. He cannot sue alone (d) on such contract, whether the breach be before or after the coverture (e). And if he do not reduce the chose in action or debt into his actual possession during the marriage, by recovering a judgment on the contract made before, (or by some new contract with the debtor, &c.), he can only sue for the recovery of the demand, as administrator of his wife, if he survive her (ƒ). And (c) But a bill of exchange or promissory note made to her whilst unmarried so far vests in him solely on the marriage, though not payable until afterwards, that he may sue alone thereon, though she had not indorsed it; Macneilage v. Holloway, 1 B. & Ald. 218, observed upon in Richards v. Richards, 2 B. & Ad. 447. See Exp. Barber in re Shaw, 1 G. & J. 1; Prestwick v. Marshall, 5 M. & P. 513. (d) If he do, he shall be nonsuited upon the general issue, non assumpsit, &c. Bac. Ab. Baron and Feme (K); (e) Id.; Com. Dig. Baron and Feme, (V); Milner v. Milner, 3 T. R. 631. (f) Com. Dig. Baron and Feme, (E 3); Co. Lit. 351b; 2 Bla. Com. 435; 1 Chitty, Pl. 6th ed. 31; Philliskirk 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 : 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 (g) 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 (h). 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 (i). So where a bill was filed by husband and wife to reduce the wife's chose in action into possession, and the husband assigned the chose for a valuable consideration and died, the wife surviving him, a decree was made to transfer the chose into the widow's own name; and it was held the chose was the wife's, against the assignee for value (k). If a feme sole marry pending a suit brought by her (1); or sue alone upon a contract made before marriage (m), 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 (n) 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, although there 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. 6th ed. 35, 36. (g) Checchi v. Powell, 6 B. & C. 253. (h) Betts v. Kimpton, 2 B. & Ad. 273, and see Whitley v. Watson, re Hatley, 2 Jurist, 45. (i) Co. Lit. 351 a; 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. (k) Hutchins v. Smith, 2 Jurist, 231. (1) Bac. Ab. Abatement, (G); Morgan v. Painter, 6 T. R. 265. (m) Milner v. Milner, 3 T. R. 631; 1 Chitty, Pl. 6th ed. 36, 37. (n) 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. 363, S. C. As to arresting her or taking her in execution, see Tidd, 9th ed. 194, 1026; 2 Chitty's Arch. 948; Slater v. Millo, 5 M. & P. 603, 7 Bing. 606, S. C. Where discharged out of custody, and on what terms, Hollingdale v. Lloyd, 3 Mee. & W. 416; 2 Jurist, 446; 6 Dowl. P. C. 565; Evans v. Chester, 6 Dowl. P. C. 140. As to the discharge of married women under the insolvent act, see 1 & 2 Vic. c. 110, s. 101. be an account stated by him (0), unless there be some new consideration for the same accruing to him, or causing an inconvenience or delay to the creditor (p). And upon her death, his personal liability, that is, his responsibility in the character of husband, is absolutely destroyed, although he may have received a large fortune with her (9). The husband is only liable in such case as wife, in the event of his administering to choses in action belonging to her, and not reduced into possession by him during the coverture (r). administrator of his Upon the same principle, the wife, if she survive, is liable upon contracts made by her before her marriage (s). The husband's discharge under the Insolvent Act is a good plea to an action against the husband and wife, for a debt due from the wife before coverture (1). II. Of the Contracts of Married Women made during 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 (u): 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 (v); and his indorsement (0) Post, tit. Account stated. (p) 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. 6th 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. (g) Id.; Com. Dig. Baron and Feme, (C 2) and (N). (r) Id. (s) Mitchinson v. Hewson, 7 T. R. 350; Woodman v. Chapman, 1 Camp. 189. (t) Lockwood v. Salter, 5 B. & Ad. 303, 2 Nev. & M. 255, S. C.; and quare whether it can be replied that the wife has separate property. (u) Com. Dig. Baron and Feme, (W); Bac. Ab. Baron and Feme, (K); Bidgood v. Way, 2 Bla. R. 1239; Carpenter v. Faustin, 1 Salk. 114; Holmes v. Wood, 2 Wils. 424; Chambers v. Donaldson, 9 East, 472; 1 Chitty, Pl. 5th ed. 33; Agar v. Blethyn, 2 C., M. & R. 699, 1 Tyr. & G. 160, S. C. (v) 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. alone would be sufficient to pass the property in a bill given to his wife (x). 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 contended 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 (y). 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 a 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 (z). 2. Of the liability of the husband upon his wife's contracts during coverture. 1stly. In general.-A married woman has no original power or authority, by virtue of her 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 living with her husband, with respect to (a) Mason v. Morgan, 2 Ad. & E. 30; 4 Nev. & M. 46, S. C. (y) See ante, 9, 17; Smith v. Plomer, 15 East, 607, 610, 611. Sed qu. (z) See Saunderson v. Griffiths, 5 B. & C. 909; 8 D. & R. 643, S. C.; cited, ante, 17. 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 (a). With respect to other contracts, she is not his agent, unless his authority be expressly proved (b). 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 be rebutted and negatived by express evidence, no responsibility on his part exists (c). And in cases where he is sought to be charged for goods supplied to his wife, and which cannot be considered as necessaries, it is not for him to show that he has given notice to the tradesman not to supply the goods, but for the latter to prove that the wife contracted the debt by the authority of the husband (d). 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 (e). "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 evi (a) Emmett v. Norton, 8 C. & P. 506. (b) 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, 5 M. & P. 513; 7 Bing. 565, S. C. She is not the agent of her husband to effect a policy of assurance, Huckman v. Fernie, 3 Mee. & W. 505. And where a wife, who was proved to have authority from her husband, a paper-maker, to do certain acts in his trade, pledged paper which had no wrapper, label, or departure stamp on it, the Chief Baron was of opinion at the trial that the husband was not liable for this act of his wife; but the Court, upon motion, held that the authority of the wife was a question for the jury, Attorney General v. Riddle, 2 C. & J. 493; 2 Tyrw. 523, S. C. As to evi M dence of facts from which agency may be inferred, see Plummer v. Sells, 3 Nev. & Man. 422. (c) 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. (d) Spreadbury v. Chapman, 8 Car. & P. 371. (e) Manby v. Scott, 1 Mod. R. 125, per Hyde, J.; Montague v. Benedict, 3 B. & C. 631; 5 D. & R. 532, S. C. |