mony with a person who is substantially a different person from what was thought and expected at the time, is entitled to a declaration of the nullity of the marriage from the ecclesiastical court. (m) If the error is not a mere error nominis, or misnomer, but an error de corpore, or de persona, the contract is void as to the party who has been deceived, from want of consent; but if it is a mere misnomer, and the party has married the person that he or she all along intended to marry, the mere verbal mistake will not of course suffice to invalidate the marriage. (n)

Whenever any attempt is to be made to invalidate a marriage, parties must not slumber over their rights, for "everything is to be presumed in favour of a matrimonial union which has produced children, and united parties by a long cohabitation; such an union is not to be dissolved, unless by some pressing obligation of law." (0)

SECTION III.

LIABILITIES RESULTING FROM ACTUAL AND REPUTED MARRIAGES. (Ante, 336-348.)

Liability of the husband upon contracts made by the wife before marriage. If an action has been commenced against the wife prior to the marriage, the coverture will not abate the action, but the plaintiff may proceed to judgment, and issue execution against the wife, without taking any notice of the husband. (a) The person or property of the latter cannot of course be touched under such a judgment or such an execution; and if the wife is taken and incarcerated, the courts will in general discharge her, if she has no separate property of her own. (b) If the husband himself is sought to be implicated in the consequences of the judgment, it must not be executed against the wife, but a scire facias must be sued out thereon against the husband and wife, and a joint judgment recovered against them both; and upon this joint judgment execution may be taken out against the husband. If the wife dies before a joint judgment is recovered, the husband is discharged; (c) but if she dies after judgment

n.

(m) Frankland v. Nicholson, 3 M. & S. 261, Wyatt v. Henry, 2 Hag. Consist. 215.

(n) Clowes v. Clowes, 3 Curt. 190. Notes on Eeclesiastical Cases, vol. 1, p. 1, s. c. Rex v. Burton on Trent, 3 M. & S. 538.

(0) Sir Wm. Scott, Diddear v. Faucit, 3 Phil. 581. Mayhew v. Mayhew, 2 Phil. 13. Clowes v. Clowes, 3 Curt. 190.

(a) King v. Jones, 2 Str. 811. Cooper v.

Hunchin, 4 East, 521. Doe v. Butcher, 3 M. & S. 557. Chalk v. Deacon, 6 Moore, 128.

(b) Ferguson v. Clayworth, 6 Ad. & R., N. s., 269; 2 D. & L. 165. Banin v. Jones, 3 D. & L., Law J., N. S.

(c) Both at law and in equity, 1 Rolle Abr. 351, G. pl. 2. Earl of Thomond v. Earl of Suffolk, 1 P. Wms. 469. Heard v. Stamford, 3 P. Wms. 409; 1 Rolfe Abr. 351, pl. 2.

has been obtained, the husband remains liable, and a writ of execution may be issued thereon against him, notwithstanding her decease. If the wife, prior to the marriage, was discharged under the Insolvent Debtor's Act, such discharge may be pleaded as an answer to the action. (d)

We have already seen that the husband is entitled, during the continuance of the coverture, to the benefit of the performance of all contracts that have been previously entered into by the wife; (e) he ought naturally, therefore, to be made to bear the burthen of them. Having obtained possession by the marriage of all the wife's property, and choses in action, (if she has any,) the law looks to him as the party properly responsible for the fulfilment of the engagements made by her prior to the marriage, and which have not been barred by the Statute of Limitations. Therefore, if a feme sole executes a bond, or accepts or makes a promissory note, or a bill of exchange, and then marries, the husband may be sued thereon, together with the wife. (f) But the husband cannot be sued alone upon contracts made by the wife before marriage, because they are not his contracts; (g) neither can the wife be sued separately from the husband upon them after the coverture has commenced, and during its continuance; (h) and therefore, if a plaintiff brings an action, and recovers judgment against a feme covert as if she were a feme sole, the husband may avoid it by writ of error. (i) The coverture may also, during the pendency of the action, be pleaded in abatement. (k) But if the action be brought against the husband and wife jointly, and judgment is recovered against them both in the wife's life-time, execution may then be issued thereon against the husband, and he may thus be compelled to fulfil his wife's contract made before marriage, or discharge and satisfy the wife's debt. Therefore, if the husband and wife are both sued on the wife's bond made before marriage, and judgment is had thereupon, and the wife dies before execution, yet the husband is liable, and execution may be sued out against him, becanse the judgment hath altered the debt. () But if the wife dies during the pendency of the action, and before a joint judgment has been obtained against them both, the husband is discharged. (m)

This liability upon contracts made by the wife before marriage, arises in all cases, whether the husband had any portion with the wife or not; and this the law presumes reasonable, because by the marriage the husband acquires an absolute interest in the personal estate of the wife, and hath the receipt of the rents and profits of her real estate during coverture, and whatever accrues to her by her labour or otherwise during the coverture, belongs to her husband; so that in favour of creditors, and that no person's act should prejudice another, the law makes the husband liable to those debts with which he took her attached. (n)

Liability of the husband upon contracts made by the wife during marriage. The wife has no authority to contract by deed for the husband, so as to bind the latter, and he cannot therefore be sued upon any contract under seal entered into and executed by the wife in his name, or on his behalf, unless he has given her a power of attorney under seal to contract for him by deed. Neither is the wife herself liable upon the deed by

reason of her coverture.

A married woman has no power of entering into any description of contract during the coverture on her own account, so as to incur any legal liability thereon, (o) although she is entitled, as we have before seen, (ante, 337,) to sue, together with the husband, upon covenants that may have been entered into with her. If a deed executed by a married woman be a deed poll, "it is absolutely void ab initio, and the coverture which shows the deed to be void, is good evidence under the plea of non est factum." (p) And if it be a deed, inter partes, entered into by the wife in her own name of the one part, and the plaintiff of the other part, the covenants therein entered into by the wife cannot be enforced either against her or her husband, although the covenants that may be entered into with her by the other party to the deed may, as we have already seen, be enforced as against him in a joint action by the husband and wife.(9)

But in order that the party who has entered into this anomalous and one-sided engagement, rendering himself liable to be sued by the husband and wife, but giving him no remedy against them or either of them, may not have all the burthen of the performance of it without any of the corresponding benefits, the law gives him a right to sue the husband upon a

(n) Bac. Abr. BARON and FEME (F). Ante, 335-348.

(o) A married woman is by the civil law disabled from contracting, either on her own account or for her husband. Frustra disputas de contractibus cum marito tuo habitis, utrumne jure steterint an minime; cum tibi sufficiat, si proprio nomine nullum contractum habuisti, quominus pro marito tuo conveniri possis. Cod.

lib. 4, tit. 12, lex 1.

(p) Lord Ellenborough, Lambert v. Atkins, 2 Campb. 273. Linch v. Hooke, 1 Salk. 7. Cole v. Delawn, 3 Keb. 228. James v. Fowkes, 12 Mod. 101; Com. Dig. (Pleader); 2 W. 18 Ex parte Brady, 8 Dowl. P. C. 337.

(q) Ante, 337. Bendix v. Wakeman, 12 M. & W. 97.

quantum meruit, for a reasonable compensation for anything done under the deed, just the same as if it had never been made. If, for example, he has performed work or labour, or rendered services, or supplied goods upon the faith of a covenant for payment or remuneration therein contained, he is entitled to sue the husband for the fair value of the work and services, and of the goods supplied, just as if the covenant had never been in existence.(r)

SIMPLE CONTRACTS.-The liability of the husband upon simple contracts entered into by the wife during the coverture, depends upon the nature of such contracts, and of the things stipulated and agreed to be done. No power of attorney is requisite to enable the wife to bind the husband by simple contract; but the latter will be held liable, provided he appears to have expressly or impliedly sanctioned what she has done. (s) If the husband has entrusted the wife with the general management of his trade or business, he makes her his general agent for the carrying of it on, and clothes her with an implied authority to enter into all such contracts and agreements as are usual and necessary for the purpose; and he is consequently responsible for the fulfilment of all contracts that may be entered into by her in the execution of her task, just as if they had been made by any ordinary general agent employed by him in the matter.(/)

Bills of exchange and promissory notes, for example, drawn, accepted, or indorsed by a wife, who is entrusted by the husband with the conduct and management of a business, in the carrying on of which it is usual to negotiate such securities, are binding upon the husband,'just as much as if he had put his own name to them, by reason of the implied authority resulting from the nature of the employment. But a wife has not in general any implied power or authority to bind her husband, by making or indorsing such securities. If she is not carrying on the husband's business under his roof, it must be shown that she acted by his express authority. (u) If no authority from the husband can be shown, the instrument is void as against him; and it cannot be enforced, as we have already seen, against the wife, by reason of the coverture, and her inabi lity to contract on her own account during the continuance of the marriage.

(r) White v. Cuyler, 1 Esp. 200; 6 T. R. 176; ante, 215.

(s) M'George v. Egan 7 Sc. 112.

(t) Petty v. Anderson, 10 Moore, 577; 2 C. & P. 38, s. c. Smallpiece v. Dawes, 7 C. & P. 40.

(u) Prestwick v. Marshall, 5 M. & P. 513; 7 Bing. 565, s. c. Cotes v. Davis, 1 Camp. 485.

Bishop v. Barlow, 1 East, 434. Att. Gen. v. Riddle, 2 C. & J. 493; 2 Tyr. 523, s. c. By the French law, La femme si elle est marchande publique, peut, sans l'autorisation de son mari, s'obliger pour ce qui concerne son negoce, et au dit cas elle oblige aussi son mari. Code Nap. L. 1, tit. 5, c. 6, 220.

Sale of goods to the wife.-Every married woman who resides with her husband, and has the general management of the household affairs, is presumed to be the general agent of the latter, in all matters connected with the domestic economy of the house and family. She is clothed with an implied authority from the husband to give orders for wearing apparel, furniture, provisions, and all such things as may fairly be presumed necessary for the decent maintenance of herself, her husband, and family, and the general comfort and enjoyment of the household, according to the apparent circumstances and situation in life of her husband, and the position in society which he allows her to assume.(x) "This rule is founded on common sense, for a wife would be of little use to her husband in their domestic arrangements, if she could not order such things as are proper for the use of a house, and for her own use, without the interference of her husband." (y) But the implied authority exists so long only as it has not been put an end to by the express prohibition of the husband. “It may be discharged as to any one particular man, by the prohibition and countermand of the husband; it would be a very hard case else, for she might make him liable to the greatest enemy he ever had in the world.” (2) "If the husband have solemnly declared his dissent that she shall not be trusted, any person that has notice of this dissent trusts her afterwards at his peril; for the husband is only liable (during cohabitation) upon account of his own assent to the contracts of his wife, of which assent cohabitation causes a presumption; and when he has declared the contrary, there is no longer room for such a presumption." (a)

So long as the cohabitation continues, and the husband and wife reside together, the law concedes to the husband the right of determining how the wife is to be clothed, fed, and provided for. "This trust must be somewhere, the husband knows best how to manage affairs, and so is fitter to be trusted by the law than anybody else; and the law will not presume so much ill as that a husband should not provide for his wife's necessities." (b) But if the cohabitation ceases, if the wife is no longer sheltered under the roof of her husband, and she has been guilty of no misconduct entitling the husband to a divorce a mensâ et thoro, the law gives her a right, as we shall presently see, (post, 623-630,) to pledge the

(x) Manby v. Scott, 1 Lev. 4; 1 Sid. 109; 2 Smith's leadg. cas. 245, 249, s. c.

(y) Lord Abinger, Emmett v. Norton, 8 C. & P. 510. Lord Tenterden, Clifford v. Laton, 3 C. & P. 16.

(2) Hale, C. B., Manby v. Scott, 1 Sid. 109. Bridgman's Judgments by Bennett, 229, s. c.

(a) Per Holt, C.J., Etherington v. Parrot. 2 Raym. 1066.

(b) Hale, C. B., Manby v. Scott, 1 Bac. Abr. 717. "It shall not be left to a London jury to dress my wife in what apparel they think proper." Hale, C. B., 1 Sid. 122; 2 Smith's leadg. cas., 263, 264.