sary, so it be publicly known, and such public notification need not be at London, where the debt was contracted, but it is sufficient if it be where the parties lived, viz. in this case at Chichester; but if the debt were contracted in so short a time after the agreement, as that it could not be known at London, the husband would be liable.-Todd v. Stoakes, 8 W, III, at Guildhall, 12 Mo. 244. 1 Raym. 444. Salk. 116. (a) But if the husband turn away the wife, he sends credit with her for reasonable expences; to which purpose the case of Bolton v. Prentice, M. 18 Geo. II. B. R. (2 Stra. 1214.) is very strong: The defendant. and his wife lodged at the plaintiff's house, who was a milliner, during which time she furnished the wife with many things, without the privity or consent of her husband, which however he paid for, but forbade the plaintiff to trust his wife any more: About twelve months after the defendant turned his wife out of doors, who went to the plaintiff, and was by her furnished with apparel suitable to her degree; and for this debt the plaintiff brought the action, and had a verdict; and upon motion for a new trial it was denied; for when a man turns away his wife, he gives her a general credit, and the prohibition is gone and superseded. But if the wife elope from her husband, he shall not be liable though the tradesman who trusts her has no notice of the elopement. (b)—It is sufficient for the husband to give general notice that tradesmen, &c. should not trust his wife. Though the husband and wife cohabit, yet he may forbid any particular tradesman to trust her, and such prohibition to the tradesman's servant is sufficient.-Longworth v. Hackmore, Exon. 10 W. III. per Holt. Salk. MSS. Waṛr v, Huntly, T. 1704, Salk. 118. (c) Where (a) A fême coverte cannot contract, and be sued as a fême sole, even though she be living apart from her husband, having a separate maintenance secured to her by deed. Marshall v. Rutton, 8 T. Rep. 545; under the authority of which case Lord Kenyon said, Todd v. Stokes seemed to fall. (b) When the elopement of a wife becomes notorious, every one trusts her at his peril, for the husband is not liable unless he takes her back again. Robinson v. Greenold, Salk. 119. Morris v. Martin, 1 Stra. 647, Manwairing. Sands, 1 Stra. 706. (c) But this doctrine applies only to cases where a wife extravagantly takes up goods and pawns them, and not to cases where necessary apparel is bought and made up for her use. Etherington y. Parrott, Salk. 118. Ld. Raym. 1006. The principle so strongly laid down in these cases however has been since denied in Marshall v. Rutton, 8 'T. R, 545, where Lord Kenyon said, that the earlier cases had proceeded on a principle, supposing the hus band Where an ordinary working man married a woman of the like condition, and after cohabitation for some time left her, and during his absence the wife worked; an action being brought for her diet, Lord Chief Justice Holt held, that the money she earned should go to keep her.Warr v. Huntly, T. 1704. Salk. 118. Holt. 102. In an action for meat found and provided for the defendant, Lord [136] Raymond held, that the plaintiff could not give evidence of meat found for the defendant's wife who lived separate from him, but the plaintiff agreeing not to bring another action, he left it to the jury.-Harris v. Collins, T. 12 Geo. I. Ramsden v. Ambrose, Stra. 127. S. P. But where the plaintiff declared that the defendant was indebted for meat, &c. found by the plaintiff at the defendant's request; and on evidence it appeared to be found for the defendant's wife at his request in bis absence; upon a case reserved it was holden, that a delivery to the wife at the husband's request, is in law a delivery to the husband; (a) though it was said that it would be wrong in the case of a third per son.-Ross v. Noel, E. 31 Geo. II. C. B. band to be dead, or the wife as divorced à vinculo; until Ringstead v. Lady Lanesborough, Barwell v. Brooks, and some other cases, there was no authority to shew that man and wife could change their legal capacities, or that the latter may be sued as a fême sole whilst the relation of marriage subsists, and both are living in this kingdom. But it does not seem so clear, that the decision in Marshall v. Rutton, has altogether shaken the authority of those cases, where the wife was held liable as a fême sole, by reason that her husband was not in a situation to be sued as not being amenable to the process of the court, as in Portland v. Prodgers, 2 Vern. 104, where the husband was banished, or in Decily v. Mazarine Duchess, Salk. 116, where the husband was an alien enemy, or had abjured the realm, or in Sparrow v. Carruthers, 2 Bla. 1197, where the husband was transported; for in Marshall v. Rutton, the learned judge only said, that a fême coverte could not be sued as a fême sole whilst the relation of marriage subsisted, and both parties were living in this kingdom. (a) But this must be during co- Before Before I quit this point it may be necessary to observe, that even cohabitation is only evidence of an assent of the husband, and therefore in a special verdict the jury ought to find the assent, and not the cohabitation. (a) So they ought to find the goods necessary and convenient for the husband's estate as well as degree, for a high degree may have a low estate.-Manby v. Scott, M. 12 Car. II. 1 Lev. 4. 1 Sid. 121. 1 Bac. Abr. 296. S. C. The plea of ne unques accouple in loyal matrimonie, is good only in dower aud appeal; and if pleaded to an action on the case for a debt contracted by the wife, on demurrer the plaintiff will have judgment.— Norwood v. Stevenson, T. 11 & 19 Geo. II. K. B. Andr. 227. Husband's benefit from his wife's contracts.-Having seen how far the husband is liable to pay the wife's debts, it may not be improper to shew how far he may be benefited by her contracts, and he is intitled to whatsoever she earns during the coverture, and therefore he alone must bring assumpsit for work and labour done by his wife, the promise in law being made to him; (Buckley v. Collier, M. 1692. Salk. 114.) but if there be an express promise to her, they may join.-Brashford v Buckingham, T. 1605. Cro. Jac. 77. 205.(b) Where (a) Where any act is done by the wife, and the promise is made to her, though done without her husband's authority, yet he may afterwards assent to it, and they may join in the action. Pratt & Ux' v. Taylor, Cro. Eliz. 61. Bidgood v. Way, 2 Bla. 1239. But in all actions where the husband and wife join, the wife's interest must be stated, otherwise the assumpsit shall be deemed as made only to the husband. So if she has a separate property; and so if the cause of action existed before marriage. Bidgood v. Way, supra. (b) On an obligation to a fême coverte obligee, her husband is supposed to assent, it being for his advantage; but if he disagrees, the obligation has lost its force; and if he neither agrees or disagrees, the bond is good, for his conduct shall be esteemed a tacit consent. Whelp dale's Ca. 5 Co. 119 (b.) Co. Litt. 3 (a.) If money be due to the husband by bill or bond, or for rent on a lease, and it is paid to the wife, this shall not prejudice him, if after payment he publicly disagrees to it. 2 Shep. Abr. 426. If a husband and wife be divorced â mensâ et thoro, and the wife has her alimony, and sues for defamation, or other injury, and has costs, the husband has no right to them, and if he release them, it will not bar the wife, for these costs are in lieu of what she has spent out of her alimony, which is separate maintenance, and not in the power of her husband. Motam v. Motam, 1 Rol. Rep. 426. Motteram v. Motteram, 3 Bulst. 264. 1 Rol. Abr. 343. 2 Rol. Abr. 393. Vide etiam Carpenter v. Faustin, 1 Salk. 115. But Where a woman married a second husband, living the first, and the second not privy. As to what she acquires by her labour during cohabitation, the second husband will be entitled to it, as she will be esteemed a servant to him.-Strutville v., M. 4 Geo. II. per Parker, C. J. 1 Stra. 80. In an action for wages earned by the wife, Lee, C. J. refused to let the wife's confession of a receipt of £20 be given in evidence.-Hall v. Hill, T. 11 Geo. II. 2 Stra. 1094. * Miscellaneous Cases.--Case upon four several promises, one of which was upon a promissory note, to which the defendant demurred, and the plaintiff had judgment; to the other three counts he pleaded non assumpsit; at the trial the plaintiff would have rested his case upon the count for money lent, and offered the note in evidence; but Eyre, C. J. [137] would not allow it, because that would be to charge the defendant twice for the same note; the plaintiff then would have given evidence of goods sold and delivered, which was likewise refused, it appearing that the note was given for the same goods.--Randulph v. Regendo, 28 Geo. II. However, in common cases upon assumpsit for money lent, the plaintiff may give a promissory note from the defendant in evidence, for the 3 & 4 Ann. c. 9, which enables the plaintiff to declare upon the note, is only a concurrent remedy.-Story v. Atkins, M. 13 Geo. I. Stra. 719. Assumpsit upon a note of hand, dated the 10th of September, payable two months after date, the memorandum was general of Michaelmas term; and upon objection taken that the suit was commenced before the cause of action accrued, the plaintiff was nonsuited; (Hollingworth v. Thompson, Guildhall, 1752, per Dennison ;) sed quære, for in Proger's Ca. (M. 21 Car. II.) 2 Sid. 452, on a trial at bar, where the declaration in ejectment laid the lease to be dated after the first day of Michaelmas term, and the declaration was of the same term, it was holden to be matter of evidence when the bill was filed, for if the bill was in fact filed after the day of the supposed lease, all is well. So in Dobson v. Bell, T. 28 Car. II. 2 Lev. 176, in trover, the conversion was laid to be on the first day of Easter term, and the declaration was of the same term; verdict for the plaintiff and motion in arrest of judgment; but upon making it appear that the bill was filed, and declaration delivered after the first day of the term, judgment was entered without any amendment, for though the declaration being general relates to the first day of But where a legacy was given to a fême coverte, who lived separate from her husband, and the executor paid it to the fême, and took her receipt, on a bill brought by the hus band against the executor, he was the the term, yet the bill being filed at a day after, all relates to the filing of the bill by the course of the court. So in Tatlow or Castle v. Bateman, (T. 23 Car. II.) 2 Lev. 13, upon like motion in trover the court said, it was well enough if the bill were filed after the cause of action accrued, for no action can be depending, nor declaration delivered, until the defendant be in custodia maresc. and that is never till bill filed, and it was referred to the secondary to examine when the bill was filed. Yet in Venables v. Daffe, (E. 2 W. & M. Carth. 113,) in an action for a malicious prosecution, where the day of acquittal was laid to be after Michaelmas term began, and the memorandum was general of Michaelmas term; on motion the judgment was arrested; but there it was not shewn that the bill was filed after the first day of the term. In trover the declaration was of Easter term, which began 8th April, [*138] the demand was the 9th April, but the plaintiff proving *that the writ was not taken out till 2d May, he obtained a verdict; and on a case stated the court held that he should not be prevented by the fiction of relation from shewing the real truth of his case.-Morris v. Harwood, and Pugh, M. 1762. Bla. 312. 320. 3 Burr. 1241. The defendant was arrested, and the writ returnable before the cause of action accrued, but the declaration was specially intitled of a day in term subsequent to the time when the cause of action accrued. Per Lord Mansfield, unless the plaintiff particularly make the writ the commencement of his suit, it is only to be considered as process to bring the defendant into court; and the record being specially intitled of a day in term, that must be considered as the day on which the bill was filed, and the time of the commencement of the suit. So the plaintiff had a verdict.-Guildhall, T. 1771. (a) Use and Occupation.-At common law it was holden that assumpsit would lie for rent on an express promise, but not upon an implied promise, and such express promise must have been made at the same time with the lease. Chapman v. Southwick, H. 18 Car. II. 2 Lev. 150.But now, By 11 Geo. II. c. 19. s. 14. Where the agreement is not by deed, the landlord may bring case for the use and occupation; and if in evi (a) Vide etiam Dobson v. Bell, 2 Lev. 176. Symons v. Low, Sty. 72. Pugh v. Robinson, 1 T. Rep. 116, where it was held that a declaration entitled of the term generally relates to the first day of the term, and the promises and the breach being laid on the first day of term may be pre sumed to have been made before the delivery of the declaration, because by a reference to the ancient practice of declaring ore tenus, the defendant cannot be supposed to have been delivered till the sitting of the court on that day. dence |