commenced. It has been urged, that the defendant's servants offered him the use of slings. These are provided by the defendant; and he is bound to see that they are of sufficient strength and fit for the purpose; and he should not apply his tackle unless that could be performed which he was bound to do. If the slings were necessary, the refusal of the carman, or his declining the use of them, will not exempt the warehouseman; he ought to have insisted on the carman's using them; and if he refused, he should have repudiated those goods and refused to accept them. It appears here, that the damaged pack of linen was in the crane, and lifted from the cart, it was then in his possession; and being so, I think, in point of law, he is liable for the loss." The jury accordingly found a verdict for the plaintiff.

CHAPTER VI.

OF HUSBAND AND WIFE: AND OF CONTRACTS MADE BY THE WIFE Before and AFTER MARRIAGE; AND OF THEIR RESPECTIVE LIABILITIES: AND ALSO OF CONTRACTS MADE WITH PERSONS LIVING TOGETHER AS MAN AND WIFE.

BY the law of England, when a man and woman marry, all the per

sonal property of the wife passes to the husband, together with the right of enforcing any contracts which may have been made with her, and suing for all debts owing to her prior to the marriage; and as the law vests all her property in him, so it equally casts upon him all liabilities, in respect of contracts made, or debts contracted by her whilst she was unmarried. So, he is bound by any contracts made by her with his consent and authority during marriage. And, as a general rule, he is also bound by her contracts for necessaries supplied for her necessary support and maintenance. I propose to consider the subject of the present chapter, in the following order, viz.

1. OF CONTRACTS MADE, AND DEBTS INCURRED BY THE WIFE

BEFORE MARRIAGE.

2. OF CONTRACTS MADE BY THE WIFE DURING MARRIAGE, WITH THE AUTHORITY OF HER HUSBAND AS HIS AGENT: AND OF

CONTRACTS MADE BY A FEME COVERT, Sole trader, &c.

3. OF CONTRACTS MADE BY THE WIFE DURING THE EXILE OR BANISHMENT OF HER HUSBAND.

4. OF CONTRACTS for NECESSARIES FURNISHED THE WIFE DURING THEIR COVERTURE.

5. OF CONTRACTS MADE BY A WOMAN LIVING WITH A MAN AS HIS WIFE.

6. HOW HUSBAND AND WIFE MUST SUE AND Be sued.

1. OF CONTRACTS MADE, AND DEBTS INCURRED BY THE

WIFE BEFORE MARRIAGE.

All the personal estate, as money, goods, cattle, household furniture, &c., that were the property, and in the possession of the wife at the time of the marriage is, by law, vested in the husband; and he alone has the power of disposing of the whole or any part of it without her consent; and whatever part remains undisposed of at his death, shall go to his executors or administrators and not to the wife, though she survive him. (a) But choses in action, as debts due to the wife, which are to be demanded by action, though they are likewise so far vested in the husband, that he may reduce them into possession; yet if he dies before any alteration made by him, they shall go to his wife, nor shall they, without such alteration, survive to the husband upon the death of the wife, or he have any right to them, but as he may be entitled, as administrator to his wife. (b) The husband is also entitled to whatever his wife earns during coverture. (c) Therefore, a note payable to a feme sole, or order, who afterwards marries, becomes the property of her husband, and she cannot legally indorse it over to a stranger during coverture. (d) But where an estate is vested in trustees for the separate use of the wife, the husband cannot maintain any action at law against a stranger for wrongfully receiving the rents and profits thereof. (e) With regard to debts contracted by the wife before marriage, the law has provided, that if a man marries a woman who is in debt to divers persons, the husband and wife, during coverture, shall be sued for the recovery of them; but if the wife die, and the creditors have neglected to recover their debts, the husband shall not be charged therewith after the death of his wife; for the debts must be recovered in the life-time of the wife: (ƒ) and if the wife survives her husband, she alone is liable, and not his representatives. (g)

(a) Bac. Abr. tit. Baron and Feme, C. 3.

(b) Ibid. See also Co. Lit.351. a. b. n. 1. 3 Mod. 186.

(c) Bul. Ni. Pri. 136.

(d) 3 Wils. 5. Stra. 516. 10 Mod. 246.

(e) Davison v. Atkison, 5 Term. Rep.

434.

(f) F. N. B. 120. F. Bac. Abr. tit. Baron and Feme, F. Com. Dig. tit. Baron and Feme, N. and 2 C.

(g) 1 Campb. Rep. 189.

2. OF CONTRACTS MADE BY THE WIFE AFTER MARRIAGE, WITH THE AUTHORITY OF HER HUSBAND AS HIS AGENT: AND OF CONTRACTS MADE BY A FEME COVERT AS A SOLE TRADER.

A married woman has no power to make a contract without the authority or assent of her husband, precedent or subsequent, express or implied; therefore if she enters into any contract without such authority or assent, it is absolutely void. () So, if the wife sell or dispose of the goods of her husband, without his assent, the sale is void, and the husband may recover them back by action of trover. (i) So, where the wife buys goods without the consent of her husband, he is not chargeable for them. (k) So, a note or bill drawn, or indorsed by a married woman, is void. ()

So, where the executor of a feme covert, who lived apart from her husband, and traded as a feme sole, is not liable to be sued at law for debts contracted by the wife during her coverture, whilst living in a state of separation. (m)

In some modern cases, (n) it was indeed decided, that a married woman living apart from her husband, and having a separate maintenance secured to her by deed, might contract and be sued as a feme sole, and that her second husband was liable for debts contracted in the life-time of her former husband, during the state of separation. But in a subsequent case of Marshall v. Rutton, (o) these decisions were reviewed and fully considered; and after several arguments at the bar, it was solemnly determined by all the judges, that a feme covert cannot contract and be sued as a feme sole, even though she be living apart from her husband, having a separate maintenance secured to her by deed.

But a contract made by a married woman with the assent of her husband, is good; and shall be taken as the contract of the husband. (p) So, where a wife traded by her husband's consent, and gave bills for money, and he received the profits. The wife borrowed 100%. and died, and a bill was brought against the husband for the money. An issue was directed to try, whether the money was borrowed for carrying on the trade; for if it were, the husband should be decreed to pay it. (q) So, if the wife of A. receives 10l. to the use of B., and this comes to the profit of A. in a convenient and necessary way, though it was without A.'s order or consent after, yet A. is liable to this 'debt, and the count

(h) Ruled by all the judges in the case of Manby v. Scott, 1 Sid. 120. 1 Lev. 4. 1 Mod. 128.

(i) Com. Dig. tit. Baron and Feme. (k) 4 Leon. 42.

(1) 3 Wils. 5. See also 1 Stra. 516. 1 East, Rep. 432. 3 Esp. Rep. 266. (m) Clayton v. Adams, 6 Term Rep.

(n) Vide Corbett v. Poelnitz, 1 Term Rep. 5.

(0) 8 Term Rep. 545. See also Hatchet v. Baddeley, 2 Bl. Rep. 1079. (p) 4 Vin. Abr. tit. Baron and Feme. E. a. pl. 20. 3 Bulst. 90. 1 Stra. 80. (q) 2 Freeman's Rep. 215. pl. 288.

or declaration shall be of a receipt by the hands of the baron. (r) Again, if a feme covert, without any express authority from her husband, contract with a servant by deed, the servant, having performed the service stipulated, may maintain assumpsit against the husband. (s) So, where a husband permits his wife to act for him in any department or business, her contracts and acknowledgments shall bind the husband. (t)

OF CONTRACTS MADE WITH A FEME COVERT Sole Trader.] — By the custom of London if a feme covert exercises a trade in which her husband does not at all concern himself, she may be sued as a feme sole, in the city courts, for debts contracted by her in the carrying on of that trade; and if she has not goods that are not her husband's, she must be imprisoned till she satisfies her creditors; and as she may be sued, so she may sue as a feme sole for debts owing to her, in the way of her trade, within the city. (u) But a feme covert sole trader cannot sue or be sued as a feme sole, even upon the custom of London, in the superior courts at Westminster; but her husband must be joined for conformity.(v)

3. of contRACTS MADE WITH THE WIFE DURING THE. EXILE OR BANISHMENT, &c. of her husband.

We have already seen that the contracts of a feme covert are in general void, unless made with the assent of the husband. But in the case of banishment, abjuration, or exile, the law considers the husband as civilly dead, and therefore permits the wife to contract, and sue or be sued as a feme sole; for it would be unreasonable that she should be remediless on her part, and equally hard upon her creditors, who not having any remedy against the husband, should be without remedy against the wife. (w) And an action lies against a feme covert, though the banishment be only for a limited time: this was determined in the ease of Sparrow v. Carruthers, (x) which was an action upon a note of 101. given by a married woman, who kept a public-house, for some malt. The defence relied on was the defendant's coverture. But, upon the trial, the plaintiff proved that her husband had been transported, and his time was not expired. The question was, whether she was liable. Yates Just. thought that the Court must consider the transportation as suspending her disability. A verdict was accordingly found for the plaintiff.