his roof renders his house unfit for the residence of his wife, who thereupon removes and lives apart from him, the husband is bound to provide the wife with necessaries: e. g. medicines in sickness', during the separation.

If the husband causelessly turns" away his wife, or if the wife, having been absent from home, returns, and he shuts his doors against her; and afterwards she contracts debts for necessaries, the husband will be liable; for he sends with her credit for her reasonable expenses. But if the husband turns away his wife on acount of her having committed adultery, then he will not be liable.

The following note of Boulton v. Prentice, which was obligingly extracted by Mr. Ford from his father's MS. at the request of the compiler, may be acceptable to the reader.

Assumpsit for goods sold and delivered to deft.'s wife". Verdict for plt. On motion for a new trial, it appeared that deft. and his wife had formerly lodged at plt.'s house, during which time the deft. had given plt. express notice not to trust deft.'s wife. Afterwards deft, and his wife went to lodge at another place, where deft. used his wife ill, after which they separated, and deft. refused to receive her again (6); she desired him to maintain her and offered to return and cohabit with him, which he refused, and struck her; and declared that if any persons trusted her, or gave her credit, he would not pay them; she had not any clothes and was wholly destitute of necessaries. The goods furnished to her by plt. were necessaries and suitable to the condition of the wife. On the part of the deft. it was proved, that deft.'s wife used

Aldis v. Chapman, Middx. Sittings,
after Trin. T. 50 G. 3. Ld. Elleu-
borough C. J.

Lungworthy v. Hockmore, per Holt
C. J. Lord Raym. 444. and per Holt
C. J. in Etherington v. Parrot, Salk.
118,

x Thompson v. Harvey, 4 Burr. 2177.
y Ham v. Toovey, ante p. 246.
z Boulton v. Prentice, from Mr. Ford's
MS. Note. S. C. shortly reported in
Str. 1214.

(6) "My conception of the law is this, that if a man will not receive his wife into his house, he turns her out of doors; and if he does so, he sends with her credit for her reasonable expenses." Per Lord Eldon C. J. in Rawlyns v. Vandyke, 3 Esp. N. P. C. 251.-"Where a wife's situation in her husband's house is rendered unsafe from his cruelty or ill treatment, I shall rule it to be equivalent to a turning her out of the house, and that the husband shall be liable for necessaries furnished to her under those circumstances." Per Lord Kenyon C. J. in Hodges v. Hodges, 1 Esp. N. P. C. 441.

to pawn her clothes, and was addicted to drinking, that plt. had assisted her in pawning her watch, and that deft. a year before they parted had expressly forbidden plt. from trusting deft.'s wife. The foundation of moving for a new trial was, that the verdict was contrary to law, as the credit given to the wife is in law grounded on the supposed assent of the husband, which assent cannot be supposed where, as in this case, there is an express prohibition. But it was answered, and so resolved by the court, that, although the prohibition took effect and continued in force during the cohabitation, yet such prohibition could not, after the cohabitation ceased, either extinguish or lessen the credit to which the wife was by law entitled, after the husband had turned her away and refused to maintain her; for the husband, by such conduct, gave his wife such a general credit as amounted to a revocation of the prohibition. If the husband in a case of this kind could prohibit one person from trusting his wife, he might pari ratione prohibit many; and this might be extended so far as to deprive the wife from obtaining any credit whatsoever, so that particular prohibitions might amount to a total prohibition. If a wife leaves her husband, he is not in that case answerable for her contracts; it is the cohabitation which is considered as the evidence of the husband's assent to the contracts made by his wife for necessaries; but if the husband during the cohabitation declares his dissent, by forbidding any person to trust his wife, al persons who have notice of such dissent trust the wife at their peril. The husband is only liable on account of the implied assent to the contracts of the wife, of which assent the cohabitation afterwards induces a presumption, and when he declares the contrary, there is not any longer room for such presumption. But if a husband turns away his wife, he gives her credit wherever she goes, and must pay for necessaries which have been provided for her.

Another leading case on this subject is the case of Manby v. Scott: there the wife of the defendant went away from him without his consent. During the separation, the husband, who did not allow the wife any maintenance, expressly forbad the plaintiff to deliver any goods to his wife; notwithstanding which, the plaintiff sold to the wife silks and velvets, and then brought an action against the husband for the value of the goods. At the trial, the jury found that the goods were suitable to the degree of the husband, After three arguments in the Court of King's Bench, the

■ Mauby v. Scott, 1 Ler. 4. and 1 Sidf. 109.

judges were divided, whereupon the case was adjourned into the Exchequer, where nine of the judges (among whom was Hale Chief Baron) (7) were of opinion, that the husband was not chargeable.

If a man cohabits with a woman', to whom he is not married, and permits her to assume his name, and appear to the world as his wife, and in that character to contract debts for necessaries, he will become liable, although the creditor be acquainted with her real situation; for here a like assent will be implied, as in the case of husband and

wife.

In an action for the use and occupation of apartments by the deft.'s wife, it appeared, that the apartments had been occupied by a lady, who went by the deft.'s name, and who had actually been married to him. The defence attempted to be set up was, that the deft. had a former wife then and still living. But Lord Ellenborough C. J. said, that there was not any evidence to fix the plt. with a knowledge of the celebration of the first marriage, and that the deft. was estopped to set up bigamy as a bar to the action. He had given the woman who lodged with the plt. every appearance of being his wife. By his misconduct in marrying a second wife, while his first was still alive, he had done what he could to confer the rights of marriage upon both, and had incurred a civil as well as a criminal responsibility.

3. In respect of Children of the Wife by a former Husband. -If a man marries a woman having children by a former husband, he is not bound by the act of marriage to maintain such children: but if he holds them out to the world as

b Watson v. Threlkeld, 2 Esp. N. P. C. 637. Kenyon C. J.

c Robinson v. Nation, 1 Camp. N. P. C. 245.

d

Tubb v. Harrison, 4 T. R. 118. recognized in Cooper v. Martin, 4 East, 76.

(7) See Hale's argument, Bac. Abr. Barou and Feme, H. Twis den J. having delivered an opinion in the King's Bench in favour of the plaintiff, changed it afterwards, and agreed in opinion with the majority of the judges in the Exchequer. See 1 Sidf. 119. The argument of Mr. J. Hyde will be found at great length in 1 Mod. 124.

It will be remarked, that in this case an express prohibition had been given to the plaintiff not to trust the wife; but it was agreed by all the judges, that if the prohibition had been general, it would have been void. 1 Sidf. 127. In like manner, it is incumbent on persons dissolving a partnership to give express notice of such dissolution to all persons with whom they have had dealings in parts nership. Peake's Ng P. C. 155.

part of his family, he will be considered as standing in loce parentis, and liable even on a contract made by his wife during his absence abroad, for the maintenance and education of such children (8).

See Rawlyns 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 (9).

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

It will be proper to remark in the first place, that it is now clearly established, notwithstanding former decisions 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 determined (after two arguments before the judges in the Exchequer Chamber) in Marshall v. Rutton, S T. R. 545.

It is, however, observable, that the policy of the law which has considered a married woman as incapable of suing, or being sued, without her husband, admits of some modification from particular circumstances:

e Stone v. Carr, 3 Esp. N. P. C. 1. Kenyon C. J.

f Ringstead v Lady Lanesborough, Cooke, B. L. Barwell v. Brooks and Corbett v. Poelnitz, 1 T. R. 5.

(8) 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's R. 76.

(9) 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,

1. By the custom of the city of London, (10) a feme covert being a sole trader, may sue or be sued in the city courts as a feme sole, with reference to her transactions in London, but even there the husband must be made a party to the suit for conformity.

A feme covert, sole trader in the city of London, cannot sue, or be sued, 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', and formerly by profession and abjuration of the realm (11).

3. Where the husband had been transported for a term. of years, before the expiration of which the debt was con

g Cawdell v. Shaw, 4 T. R. 361.

h Beard v. Webb, 2 Bos. & Pul. 93.
i Belknap's case, 2 H. 4. 7 a. it appears
by the year book, 1 H. 4. 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.

(10) By the custom of London, "A feme sole merchant is, where the feme trades by herself in one trade in which her hus band does not intermeddle, and buys and sells in that trade; then the feme shall be sued, and the husband named only for couformity, and if judgment he 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. and Pul. 98. The judgment here referred to is. very elaborate, and contains much useful information on this subject.

"that an

(11) See 1 Inst. 133 a. where Sir Edward Coke says, 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.