person, is no longer liable on an order of justices for the maintenance of such child; at least while the husband is competent to do so.(a) *A woman, settled in the parish of C., bore a bastard [*656 ] child before the passing of statute 4 & 5 Will. 4, c. 76, and it was placed for nurture in the parish of W. She then married, and lived with her husband in the parish of K., the child remaining in W. The child becoming afterwards chargeable to W. while under the age of sixteen, was removed, by order of the justices, to C. It was held that the removal was proper, and consistent with statute 4 & 5 Will. 4, c. 76, s. 57.(b) Although a father is under a moral obligation to provide necessaries for his son, yet the father is not legally liable to pay his son's debts, even for necessaries, without some promise express or implied to do so, or in those cases provided for by stat. 43 Eliz. c. 2, when the son is unable to pay them.(c) It was said by Lord Eldon that if a husband, living in a state of separation from his wife, suffers his children to reside with their mother, he is liable to necessaries furnished to the children.(d) It is a question not yet decided whether a father who deserts his legitimate child be or be not liable in an action of assumpsit to any one who provides food and clothing for it; but in order that the law should imply a liability on the father to repay another for supporting his child, it is absolutely necessary that desertion of the child by the father should be proved. No such action can be maintained if the father had reasonable ground to suppose that the child was provided for. Thus where it appeared that the mother left the father and lived in adultery, then a child was born, as to which the father apparently doubted whether it was his, and he was going to put it into the Foundling Hospital, the grandmother, not liking this, sent for the child, and said that the father should be put to no expense; the child was then put in her custody. Afterwards the mother took it, after which it was sent back again to the grandmother, and then to the mother [ *657 ] again; and then it returned to the grandmother; being sent backwards and forwards according to the caprice of the mother. As far as related to the defendant, the father, the child was still in the custody of the grandmother, for he was not proved to have known that she was not in that custody, or that the circumstances of cruelty had occurred. The action was brought by the grandmother against the father for the board, lodging, &c. of the son.(f) (a) Lang v. Spicer, 1 Mees. & W. 129; Tyr. & Gr. 358. (b) Reg. v. Inhabitants of Wendron, 7 Ad. & Ell. 819. (c) Blackburn v. Mackey, 1 Carr. & P. 1; Fluck v. Tollemache, ib. 5; Mortimer v. Wright, Law Journ. 9 vol. N. S. 158; 4 Jur. 465. See Nicholes v. Allen, 3 C. & P. 36; Law v. Wilkin, 6 Ad. & Ell. 718; 1 N. & (d) Rawlins v. Vandyke, 3 Esp. 252. See ante, 646. (f) Urmston v. Newcomen, 4 Ad. & Ell. 899. SECT IV. OF THE LIABILITY OF THE WIFE'S SEPARATE MAINTENANCE TO DEBTS CONTRACTED BY HER. Married Woman not liable to be sued at Law in respect of her separate Property.]-In the courts of common law a married woman can in no way be sued by reason of her having separate property, and living apart from her husband. If a wife who is living apart from her husband has property secured to her separate use, she ought to apply it to her support as her occasions may require; and if those who know her condition, instead of requiring immediate payment give credit to her, they cannot sue her.(a) It has been already stated that a woman divorced a mensa et thoro for adultery, and living apart from her husband cannot be sued as a feme sole. (b) To a plea of coverture the plaintiff replied that the defendant was separated from her husband, that alimony was allowed her by the ecclesiastical court pending a suit there, which was a sufficient maintenance, and that she obtained credit, and made the promises on her own account as a feme sole, and not on the credit of her husband; on demurrer this replication was held to be bad. (c) The court on motion set aside a judgment on a warrant of attorney given by a feme Where covert, although she had been divorced a mensa et thoro.(d) a feme covert separated from her husband by a sentence [ *658 ] *of divorce a mensa et thoro, was holden to bail while an appeal was still pending against the sentence, the court, on motion, ordered the bail bond to be cancelled, she filing a common appearance.(e) The husband's residence abroad and a fortiori his temporary absence in Ireland or Scotland will not enable the wife to bind herself by her own contracts. In an action for goods sold and delivered the defence was coverture. The defendant's husband was an Englishman, who, about ten years before the commencment of the action, had purchased the appointment of agent for the English packets at the Brill in Holland, and had resided there ever since. During that period he became possessed of madder grounds, from the cultivation of which he derived considerable profit. On the irruption of the French into Holland in 1795, his employment as agent having ceased, he sent his wife, the defendant, with his family to reside in England, but he remained in Holland to look after his madder grounds, and with a view to recover his situation, in case the intercourse between England and Holland should be re-established. The defendant lived in The Norfolk, and was there considered to be a married woman. plaintiff had furnished her with coals, for the value of which the action was brought, but it was decided that it could not be sustained.(f) In an action of trespass by the wife as a feme sole, a plea that the plaintiff was a married woman was put in. The husband in (a) Beard v. Webb, 2 Bos. & P. 93; Mar. shall v. Rutton, 8 T. R. 545; Murray v. Barlee, 3 M. & Keen, 220. (b) Lewis v. Lee, 3 B. & C. 291. See ante, p. 477. (c) Ellah v. Leigh, 5 T. R. 679. 73. (d) Faithorne v. Blaquire, 6 Maule & S. (e) Hookham v. Chambers, 3 B & B. 92. (f) Marsh v. Hutchinson, 2 Bos. & P. 226. See Chambers v. Donaldson, 9 East, 471. 1805 had gone to America, leaving his wife destitute, who had ever since lived separate from him, and made contracts here and obtained credit as a single woman; and for her support had carried on trade as a feme sole. The court decided that the plaintiff could not sustain the action.(g) To a plea of coverture the plaintiff replied, that the defendant's husband "lived and resided in Ireland, and that the defendant lived separate from her husband as a single woman, and as such single woman promised, &c." the replication was held bad on general demurrer, because the terms of it were perfectly consistent with mere temporary absence, and they might be *applied [ *659 ] to the case of every man, who went for a short time to live in Ireland or Scotland, and whose wife in the mean time contracted debts here.(h) Coverture being pleaded to a declaration in assumpsit for goods sold and delivered, plaintiff replied that defendant was, at the time of the contract, separated from her husband and living in open adultery, that the plaintiff did not know of the marriage or adultery, that the defendant, after her husband's death and before action brought, in consideration of the premises, promised to pay. It was held that no consideration appeared for the promise in the replication, the promise in the declaration being altogether void; and that the replication was a departure, the promise therein being distinct from that alleged in the declaration.(i) As a married woman, living apart from her husband, cannot make a contract for the hire of goods, it was held that the property in the furniture of a house which had been let to her remained in the tradesman who supplied them, as against an execution creditor of the husband.(k) When Married Woman will be considered as Feme Sole.]-When the husband is transported or an alien enemy, and under an absolute disability to come and live here, the law will make the wife of such a husband chargeable as a feme sole for her debts and contracts.(/) But she is not liable as a feme sole merely because her husband is an alien and continually abroad. (m) A married woman, whose husband has been transported for seven years, may maintain an action as a feme sole on the ground of the husband having abjured the realm, even though the term of transportation has expired, and if the defendant relies on the fact that the husband has returned, by which the right of action in her sole capacity would be gone, the proof of that fact lies on him.(n) *Where the husband had been attainted of felony, and [ *660 ] pardoned on condition of transportation, and afterwards the wife became entitled to some personal estate as orphan of a free (g) Boggett v. Frier, 11 East, 301. (h) Farrer v. Countess of Granard, 1 Bos. & P. N. R. 80. (i) Meyer v. Haworth, 8 Ad. & Ell. 467. (k) Smith v. Sheriff of Middlesex, 15 East, 607. (1) Countess of Portland v. Prodgers, 2 Vern. 104; Derry v. Duchess Mazarine, Ld. Raym. 147; Weyland's case, Co. Litt. 133 a; 2 Bos. & P. 231, 232. See ante, p. 477. (m) Barden v. Keverberg, 2 Mees. & W. 61. See Kay v. Duchess of Pienne, 3 Camp. 123. (n) Carrol v. Blencow, 4 Esp. 27, cited 11 East, 303; Co. Litt. 133 a. Farrer v. Granard, 1 Bos. & P. N. R. 80; Boggett v. Frier, 11 East, 301; Marsh v. Hutchinson, 2 Bos. & P. 226. man of London, such personal estate was decreed to the wife as to a feme sole.(0) Actions by Wife in Husband's Name.]-A feme covert, living apart from her husband under sentence of separation, with alimony allowed pendente lite in the ecclesiastical court, having brought trespass in the name of her husband against wrong-doers, for breaking and entering her house and taking her goods, the court refused on the application of such defendants, to stay the action, though supported by an affidavit of the husband (who had not released the action nor applied to be indemnified against the risk of costs) that the action was brought without his authority (p) Where husband and wife lived separate, and an action was brought by the wife for a debt due to herself in the name of the husband and wife, without the husband's authority, the court on application ordered proceedings to be stayed until an indemnity was given to the husband. But on giving such indemnity, the wife will be at liberty to go on in her husband's name.(q) So where an action is brought (without the husband's authority) in the name of the husband and wife, for an assault upon the latter, the husband will be entitled to stay the proceedings until he receives an indemnity against costs.(r) A married woman, in the absence of her husband, will be allowed to sue alone in a testamentary cause in the ecclesiastical court on finding security for costs.(s) Separate Estute in Equity liable to Wife's Debts.]-Although a wife cannot at common law be sued in respect of her having a separate property and living apart from her husband, yet such property may be reached in courts of equity *by means of a suit instituted against her and her trustees.(t) [ *661 ] Whenever it is sought to charge the separate estate of the wife, the husband must be made a party (u) as a matter of form;(w) but the wife is considered as a feme sole, and must be served with process,(x) and is personally answerable for contempts in not obeying the orders of the court, and may be committed to prison as any other person.(y) Where the husband and wife are defendants in a suit, and lived separate, the husband was allowed, on affidavit of the fact of separation, and that he had no control or influence over her, to put in a separate answer, and an order was made that he should not be liable to process if she neglected to answer.(z) When personal property is actually given or settled, or is agreed to be given or settled to the separate use of a married woman, she may dispose of it as a feme sole to the full extent of her interest, although no particular form to do so is prescribed in the instrument for the purpose. (a) Where a wife joins with her husband in a security, it is by implication an execution of her power to charge her separate property.(b) Freeholds were conveyed by lease and release to trustees to the use of a feme covert, for her separate use for life, or to the use of such person as she should by writing, sealed, &c. appoint; and in default of appointment, in trust to pay the rents to her, for her separate use. The husband and wife, by writing not under seal, for valuable consideration, undertook to execute a mortgage of the property when required. The husband died before any mortgage had been executed, the agreement was binding upon the wife surviving.(0) By a deed, which represented the wife to have the dominion over the fee of an estate by means of a power, the wife appointed and the husband and wife conveyed the fee by way of mortgage. The estate was really settled to the separate use of the wife for life, with remainder to the husband for life, with remainders over. The mortgage money was decreed to be raised out of the life estates.(p) It is quite clear that a married woman can render her separate estate liable to the payment of debts by an express provision to pay out of her separate estate, as where there was a promissory note given, and also a promise by letter to pay out of her separate estate. (c) There are also several cases in which a feme covert, having separate property, has either in respect of her husband's debt, or what may be called her personal debt, given her bond or note, and the court of chancery has ordered the bond or note to be paid out of her separate estate. (d) Goods purchased by a married woman out of the proceeds of property settled to her sole and separate use, may be taken in execution on a judgment against her husband. The question reserved in this case was, whether the goods bought by the wife, and subsequently taken in execution, should be deemed the property of her trustees, or of the husband. The court thought that they belonged to the husband and not to the trustees, the goods having been bought by the wife with her own money.(g) Where property had been settled on marriage to the sole and separate use of the wife, and she and her husband having afterwards separated, she invested money, saved from her separate estate, in the names of trustees, and appointed it by will, and at her death left an additional sum undisposed of, the husband was entitled to it jure mariti.(h) [ *662 ] *It may admit of some doubt whether the liability of the wife's separate estate extends to her general engagements, or is limited to her express contracts in writing. In Stuart v. Lord Kirkwall, (e) the separate maintenance settled upon the wife, on a separation from her husband, was 1600l. a year. She accepted a bill of exchange drawn upon her by a milliner for 3391. 14s. 6d. and (a) Fettiplace v. Gorges, 1 Ves. jun. 46; 3 Br. C. C. 8; Peacock v. Monk, 2 Ves. sen. 191. (b) Hulme v. Tenant, 1 Br. C. C. 20. (0) Stead v. Nelson, 2 Beav. 245. (P) Wainwright ▼. Hardisty, 2 Beav. 363. (c) Bullpin v. Clarke, 17 Ves. 365. (d) Norton v. Turwill, 2 P. Wms. 144; Standford v. Marshall, 2 Atk. 69; Hulme v. Tenant, 1 Br. C. C. 16; Heatley v. Thomas, 15 Ves. 596; Anon. 18 Ves. 258. (g) Carne v. Brice, 8 Dowl. P. C. 884. (k) Malone v. Kennedy, 3 Jurist, 793, cited & Dowl. P. C. 885. (e) 3 Madd. 387. |