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exception. In the case of Belknap v. Lady Weyland, (d) it was held, 2 Hen. IV. ch. 7, that the wife of a man exiled or banished could sue alone, though that exception was regarded at that day almost as a prodigy; and some one exclaimed ecce modo mirum, quod fremina fert breve regis, non nominando virum conjunctum robore legis. Lord Coke seems to put the capacity of the wife to sue as a feme sole upon the ground that the abjuration or banishment of the husband amounted to civil death. But if the husband be banished for a limited time only, though it be no civil death, the better opinion is, that the consequences as to the
wife are the same, and she can sue and be sued as a feme * 155 * sole. (a) And if the husband be an alien always living
abroad, the reason of the exception also applies; and it was held, in the case of Deerly v. Duchess of Mazarine, (6) that in such a case, the wife was suable as a feme sole, in like manner as if the husband had abjured the realm. Though it was mentioned in that case that the husband was an alien enemy, and had been divorced in France, yet, as Lord Loughborough said, (c) the decision did not rest on either of those grounds, but solely and properly on the ground that the wife lived in England, on a fortune of her own, and separate from her husband, who had always resided abroad as an alien.1
(d) Cited in Co. Litt. 132 b, 133 a; and see, also, Wilmot's case, Moore, 851, in which 18 Edw. I., 10 Edw. III. ch. 399, and i Hen. IV. ch. 1, and also cited by Lord Coke and Dodderidge, J., as precedents to the same point.
(a) Note 209 to lib. 2, Co. Litt. Sparrow v. Carruthers, decided by Yates J., and cited as good authority in 1 Term Rep. 6. i Bos. & Pull. 350. 2 Bos. & Pull. 233. Carroll v. Blencow, 4 Esp. N. P. 27. In Robinson v. Reynolds, 1 Aiken (Vt.) 174, the English cases are ably reviewed, and the conclusion seemed rather to be that the wife could only sue and be sued as a feme sole, when the husband was an alien who had always resided abroad, or was civilitur mortuus, as when he was exiled, banished for life, or had abjured the realm. In that case, the husband had voluntarily withdrawn himself from the United States, and that was held not to be sufficient; and the question was by that case still left unsettled, whether transportation or banishment by law, for a limited time only, would be sufficient. But in the English case, Ex parte Franks, 1 Moore & Scott, 1, more recently decided, the wife of a convicted felon, sentenced to transportation for fourteen years, but detained in confinement in the hulks, was held liable to be made a bankrupt, if she traded on her own account.
(6) i Lord Raym. 147. i Salk. 116. (c) I H. Blackst. 349.
1 McArthur v. Bloom, 2 Duer, 151.
Again, in Walford v. The Duchess of Pienne, (d) Lord Kenyon held, that the wife was liable as a feme sole, for goods sold, when the husband was a foreigner, residing abroad, and that this case came within the principle of the common law, applicable to the case of the husband abjuring the realm. If the wife was not to be personally chargeable for debts contracted under such circum stances, she would be without credit, and might starve. And if the husband was a native, instead of an alien, he thought the rule might be different, as in that case he was to be presumed to have the * animus revertendi. (a) In the case of * 156 De Gaillon v. L'Aigle, (b) the court of C. B. held the same doctrine, and that a feme covert was chargeable with her contracts, where the husband, being a foreigner, had voluntarily abandoned her, and resided abroad, and that it was for her benefit that she should be liable, in order to enable her to obtain a credit and secure a livelihood. It was also said, in that case, that there was no instance in which the wife was held personally liable on her contracts, on the ground of her husband residing abroad, when he was an Englishman born. In corroboration of the distinction contained in that suggestion, we may refer to the case of Bogget v. Frier, (c) in which the K. B. held that the plaintiff could not sue as a feme sole for trespass to her property, when her husband, being a natural-born subject, had deserted her for years before, and gone beyond sea, but without having abjured the realm, or been exiled or banished. The case of Kay v. Duchesse De Pienne, (d) introduced a qualification of the distinction, in the former cases, between the wife of a foreigner and the wife of a native; and it held that if a foreigner, though a resident abroad at the time of the suit brought, had ever resided
(d) 2 Esp. N. P. 554. Bean v. Morgan, 1 Hill (S. C.) 8, S. P.
(c) 11 East, 301. The rejoinder in this case, among its averments, stated that the husband had never abjured the realm. This would imply that abjuration was known in modern practice, and yet it is admitted in the books, that abjuration or banishment upon oath, taken by a felon on fleeing to a sanctuary, that he would, within forty days, leave the realm forever, has been disused since the reign of James I., and abolished. Hawk. P. C. b. 2, c. 9, sec. 44. 4 Blacks. Comm. 326. The privilege of sanctuary was also abolished in France by Louis XII. Henault's Abr. Chro. tom. ii.
in England, his wife was disabled to sue. The distinctions in the English law, subject to this qualification, have been assumed as
the law in this country. (e) * 157
* This is the extent of the authorities on this subject;
and it is easy to see that there might be most distressing cases under them, for though the husband be not an alien, yet if he deserts his wife and resides abroad permanently, the necessity that the wife should be competent to obtain credit, and acquire and recover property, and act as a feme sole, exists in full force. (a) It is probable that the distinction between husbands who are aliens and who are not aliens, cannot long be maintained in practice, because there is no solid foundation in principle for the distinction. (6) 1
If the wife be divorced a mensa et thoro, it has been suggested, in some of the books, that she can sue and be sued as a feme sole. (c) But in Lewis v. Lee, (d) it was adjudged, in the English
(e) Gregory v. Paul, 15 Mass. 31. Robinson v. Reynolds, 1 Aiken, 74, supra, p. 155,
(a) If a feme covert be driven by cruelty from her husband's house, and she retires to another state, and maintains herself by her labor, without any provision for her made by her husband, who abandoned her, she may sue as a feme sole, though her husband be a citizen. Gregory v. Paul, 15 Mass. 31. Abbott v. Bayley, 6 Pick. 89.2
(6) In Bean v. Morgan, 4 M'Cord, 148, it was held, that if the husband departs from the state, with intent to reside abroad, and without the intention of returning, his wife becomes competent to contract, and to sue and be sued as a feme sole. This was breaking down the distinction mentioned in the text. So in Gregory v. Pierce, 4 Metcalf, 478, it was held, that if the husband deserts his wife absolutely and completely, by a continued absence from the state, and with an intent to renounce de facto the marital relation, the wife may sue and be sued as a feme sole. This was considered to be an application of an old rule of the common law, and equivalent to an abjuration of the realm.
(c) Bacon, tit. Baron and Feme, M. Lord Loughborough, in 2 Vesey Jr., 145. In Stevens v. Tot, Moore, 665, it was intimated (il sembloit) that the wife, on divorce a thoro et mensa, could sue without her husband, in like manner as she could sue if her husband was exiled.
(d) 3 Barn. & Cress. 291.
· The wife of an alien enemy cannot maintain an action in her own name on a contract made either before or during coverture. De Wahl v. Braune, 38 E. L. & Eq. 300.
Rose v. Bates, 12 Miss. 30; Roland v. Logan, 18 Ala. 307; Krebs v. O'Grady, 23 Id. 726 ; Love v. Moynehan, 16 Ill. 277.
3 In Ohio, a wife may sue or be sued as a feme sole on contract for necessaries for her maintenance, where her husband has deserted her and she maintains herself. Wagg's Executor v. Gibbons, 5 Ohio (N. S.) 580. And it was held, in Smith v. Silence, 4 Iowa 321, that where a wife has been a long time absolutely deserted by her husband, and left wholly to her own means of support, she is free to act as a feme sole.
court of K. B., upon demurrer, that though the wife be divorced a mensa et thoro, and lived separate and apart from her husband, with an ample allowance as and for her separate maintenance, she should not be sued as a feme sole. The question is not settled in the jurisprudence of this country. In Massachusetts, it has been held, after a full consideration of the subject, that a wife divorced a mensa et thoro, might sue and be sued as a feme sole, for property * acquired, or debts contracted by her * 158 subsequently to the divorce. (a) This is the more reasonable doctrine ; and it seems to be indispensable that the wife should have a capacity to act for herself, and the means to protect herself, while she is withdrawn by a judicial decree from the dominion and protection of her husband. The court of Massachusetts has intentionally barred any inference that the same consequence would follow if the husband was imprisoned by law for a public offence or crime. But such a case might be equivalent to an abandonment of the wife, and ground for a divorce a mensa et thoro; and there are as much reason and necessity in that case as in any other, that the wife should be competent to contract, and to protect the earnings of her own industry. (6)
In Hatchett v. Baddeley, 16 Geo. III., (c) the C. B. held that a feme covert eloping from her husband, and running in debt, could not be sued alone, for that no act of the wife could make her liable to be sued alone. If she could be sued, she could sue, acquire property, and release actions, and this would overturn first principles. In no case, said one of the judges, can a feme covert be sued alone, except in the known accepted cases of abjuration or exile, where the husband is considered as dead, and the woman as a widow. It was afterwards held, by the same court, in Lean
(a) Dean v. Richmond, 5 Pick. 461. Pierce v. Burnham, 4 Metcalf, 303, S. P.
(6) Massachusetts Revised Statutes of 1836, authorized a divorce from the bond of matrimony if either party be sentenced to imprisonment in the state prison. Supra, p. 96. They likewise clothe the wife with power to act in many respects as a feme sole, if her husband absents himself from the state, and abandons his wife, and makes no sufficient provision for her maintenance. She is, in such cases, authorized to contract, and to sue and be sued as a feme sole, so long as her husband remains absent. The same power and capacity are given to a married woman who comes into the state without her husband, he having never lived with her in the state. If the husband afterwards comes into the state, he assumes his marital rights. Massachusetts Revised Statutes, part 2, tit. 7, ch. 77.
(c) 2 Wm. Blacks. 1079. Gilchrist v. Brown, 4 Term Rep. 766, S.P
v. Schutz, 18 Geo. III., (d) that if the wife had even a separate maintenance, and lived apart from her husband, she could not be sued alone. There was no instance in the books, said the court, of an action being sustained against the wife, when the husband was living at home, and under no civil disability. A wife may acquire a separate character by the civil death of her husband,
but she cannot acquire it by a voluntary separation.
* But a few years afterwards, the court of K. B., under
the influence of Lord Mansfield, in the celebrated case of Corbett v. Poelnitz, (a) introduced a new principle into the English law, respecting the relation of husband and wife; but a principle that was familiar to the Roman law, and to the municipal law of most of the nations of Europe. The court, in that case, held that a feme covert living apart from her husband, by deed of separation mutually executed, and having a large and competent maintenance settled upon her, beyond the control of her husband, might contract and sue, and be sued at law as a feme sole. Lord Mansfield put the action upon the ground of the wife having an estate settled upon her to her separate use, and acquiring credit, and assuming the character and competency of a feme sole. The ancient law had no idea of a separate maintenance; and, when that was introduced, the change of customs and manners required, as indispensable to justice, the extension of the exceptions to the old rule of law, which disabled a married woman from contracting. The reason of the rule ceased when the wife was allowed to possess separate property, and was disabled from charging her husband.
This decision of the K. B. was in 1785, and it gave rise to great scrutiny and criticism. It was considered as a deep and dangerous innovation upon the ancient law.
In Compton v. Collinson, (6) Lord Loughborough held, notwithstanding that decision, that it was an unsettled point, whether an action could be maintained against a married woman separated from her husband by consent, and enjoying a separate mainten
Again, in Ellah v. Leigh, (c) the K. B., in 1794, in
(d) 5 Wm. Blacks. 1195.
(a) i Term Rep. 5. Ringsted v. Lady Lanesborough, and Barwell v. Brooks, 3 Doug. 197, 371, were cases that preceded the one of Corbett v. Poelnitz, and declared the same doctrine. (6) i H. Blacks. 350.
(c) 5 Term Rep. 679.