it is true, the wife may be indicted and punished separately (y); for the union is only a civil union (45). But in trials of any sort they are not (y) 1 Hawk. P. C. 3. (45) In many inferior misdemeanors the law holds the wife responsible for her own conduct. For instance, if she receives stolen goods of her own separate act without the privity of her husband. (Hale P. C. 516.) A feme covert may be indicted alone for a riot, (Dalt. 447.) or for selling gin against the statute 9 Geo. II. c. 23. (Stra. 1120.) or for being a common scold, (6 Mod. Rep. 213. 239.) for assault and battery, (Salk. 384.) for keeping a gaming house, (10 Mod. Rep. 335.) for slander or trespass, (Roll. Abr. 251.) for keeping a bawdy house without the concurrence of her husband, (10 Mod. Rep. 63.) and though she has obtained his consent she is still punishable. (1 Hawk. to her by deed. 8 T. R. 545. And a woman who has even declared herself to be a feme sole, and as such has executed deeds and maintained actions, if herself sued as a feme sole, is not thereby estopped from setting up a defence of coverture. 4 Camp. 26. And a woman divorced a mensa et thoro for adultery, and living separate and apart from her husband, cannot sue as a feme sole. 3 Bar. & Cres. 291. A feme covert, who by the custom of London may trade as a feme sole in that city, though she may sue in the city courts as a feme sole, yet the husband must be joined for conformity, and so in the courts at Westminster, 4 T. R. 361. 2 Bos. & P. 93. See ante 443, note (48), as to this custom; and even the death of her husband before action brought, will not entitle her to sue in respect of her contract. 4 T. R. 361. But there are some exceptions to this rule, as it appears from the learned commentator's text, and where the husband can be considered as civiliter mortuus, the wife may sue alone. Lord Coke in Co. Lit. 132. b. says, that a deportation for ever into a foreign land, like to a profession, is a civil death, and that is the reason that the wife may bring an action, or may be impleaded during the natural life of her husband; and so if by an act of parliament the husband be attainted of treason or felony, and saving his life is banished for ever, this is a civil death, and the wife may sue as a feme sole; but if the husband have judgment to be exiled but for a time, which some call a relegation, this is no civil death. Every person who is attainted of high treason, petit treason, or felony, is disabled to bring any action, for he is extra legem positus, and is accounted in law civiliter mortuus. See 4 T. R. 361. 2 B. & P. 165. 4 Esp. Rep. 27. Selw. N. P. 6 ed. 286. Cro. Car. 519. 145. Bac. Ab. tit. B. & F. M. 9 East, 472. Where the husband is an alien and left this kingdom, or has never been in this country, the wife may sue alone on her contracts during such absence. 2 Esp. 554. 587. 1 B. & P. 357. 2 B. & P. 226. 1 N. R. 80. 11 East, 301. 3 Camp. 123. 5 T. R. 679. 682. But in general the absence of the husband affords no ground for a wife's proceeding separately. 11 East, 301. 1 "a P. C. c. 1. s. 12.) Lord Mansfield says, feme covert is liable to be prosecuted for crimes committed by her;" and Mr. Justice Wilmot, in the same case, observed, "The husband is not liable for the criminal conduct of his wife." See Rex v. Taylor, 3 Burr. 1681. Where a wife, by her husband's order and procuration, but in his absence, knowingly uttered a forged order and certificate for the payment of prize money, it was held, that the presumption of coercion at the time of uttering did not arise, as the husband was absent, and the wife was properly convicted. Russell & R. Cro. C. 210. 4. Where the husband and wife may join or not at their election.-The husband and wife may in all cases join when the cause of action would survive to her, or when she is the meritorious cause of action, and there has been an express contract with her, or the husband might sue alone. 1 Wils. 224. 2 Mod. 270. and cases infra. If in respect of a contract made to the wife whilst sole, the party thereto after the marriage give a bond to the husband and wife, or in respect of some new consideration, as forbearance, &c. make a parol promise to the husband and wife, they may join, or the husband may sue alone on such new contract, 1 M. & S. 180. 4 T. R. 616. 1 Salk. 117. 3 Lev. 403. Carth. 462. Lord Raym. 368; but if such bond or promise were made to the husband only, he alone should sue. 1 M. & S. 180. Cro. Jac. 110. Yelv 84. If a bond or other contract under seal be made to her separately, or with her husband, 1 Stra. 230. 4 T. R. 616. Co. Lit. 351. a. n. 1. 1 Wils. 224. Alleyn. 36. Bac. Ab. Bar. & F. pl. 23. Cro. Jac. 399. Buls. 163. S. C. or in the case of her personal labour, &c. if there be an express promise to her, or to her and her husband, she may join with the husband, or the husband may sue alone. 2 M. & S. 393. 396. 4 T. R. 616. Al. 36. Cro. Eliz. 61. 1 Selw. N. P. 296. 6 ed. 1 Chit. on Pl. 20. 4 ed. For rent, or other cause of action accruing during the marriage on a lease or demise, or other contract relating to the land or other real property of the wife, whether such contract were made before or during the coverture, the husband and wife may join, or he may sue alone. Stra. 230. 1 Wils. 224. 2 Lev. 107. Com. Dig. Bar. & F. X. Y. And when a lease for years has been granted to husband and wife, and the lessor evicts them, they may join, or the husband may sue alone. Bro. Ab. Bar. & F. pl. 25. 2 Mod. 217. Cro. Jac. 399. Bulst. 163. 1 Chit. on Pl. 4 ed. 20. And in all actions for a profit, &c. accruing during coverture in right of the real estate of the wife, they may join, or the husband may sue alone, as in debt for not setting out tithes payable to the wife. Com. Dig. Bar. & F. X. 2 Wils. 423, 4. Cro. Jac. 399. But the interest of the wife must always in these cases ex allowed to be evidence for, or against, each other (2): partly because it is impossible their testimony should be indifferent, but principally because of (z) 2 Hawk. P. C. 431. pressly appear in the pleadings, 2 Bla. Rep. 1236. 1 H. Bla. 106. Where the husband and wife have recovered judgment on a bond made to wife dum sola, the husband and wife may join in an action on such judgment, or husband may sue alone. 1 Selw. N. P. 297. 6 ed. In an action for a joint malicious prosecution of husband and wife, they may join in respect of the injury to both, or the husband may sue alone. Cro. Jac. 553. Com. Dig. tit. B. & F. X. For injuries to personal property of wife when the cause of action had its inception before marriage, but its completion afterwards, as in the case of trover before marriage and conversion during it, or of rent due before marriage and a rescue afterwards, the husband and wife may join or husband sue alone in trover or trespass, 2 Saund. 47. g. Salk. 114. 1 Chit. on Pl. 4 ed. 62. though not in detinue. 1 Rol. Ab. 347, R. pl. 1. Bac. Ab. Detinue, B. Bul. N. P. 53. And though produce of wife's labour is the husband's property, yet in respect of her being the meritorious cause of action she may in some cases be joined, as in the case of the Dippers at Tunbridge Wells. 2 Wils. 414. 424. Com. Dig. Bar. & F. X. In actions for the recovery of damages to the land or the real property of the wife during the coverture, or for a tort, which prejudices a remedy by husband and wife, as in the case of quare impedit or rescue, &c. the husband may sue alone, Bro. Bar. & F. pl. 28. 41. 16. 1 Selw. N. P. 298. 6 ed. Com. Dig. Bar. & F. X. or the wife may be joined. Id. 2 Wils. 423. 2 Bla. Rep. 1236. Cro. Car. 418. 437. The effect of joining the wife in an action when the husband may sue alone, is that if the husband die whilst it is pending or after judgment, and before it is satisfied, the interest in the cause of action will survive to the wife, and not to the executors of the husband; though if he sued alone, she would have no interest. Co. Lit. 351. a. note 1. Cro. Jac. 77. 205. 2 Bla. Rep. 1236. 5. As to who should sue when the husband or wife is dead.-If a feme covert die and the husband survive, he may sue for any thing he became entitled to during coverture; as for rent incurred to the wife during coverture. 1 Rol. 352. pl. 5. Com. Dig. Bar. & F. Z. Co. Lit. 351. a. n. 1. post 2 book, 434. So the husband may sue for chattels given to the wife during the coverture in her own right, id. though not for her rights in autre droit. Id. 4 T. R. 616. 1 Rol. Ab. 889. pl. 10. Dyer, 331. a. And he cannot sue for arrears of rent accruing after the death of the wife on a lease of her land by himself and wife during coverture, the lessee covenanting to pay the wife's heirs, the rent in such cases going to the heirs. 2 Bing. 112. The husband cannot sue except as administrator upon choses in action, or contracts made with the wife before coverture, except arrears of rent, 32 Hen. VIII. c. 37. s. 3. Com. Dig. Bar. & F. E. 3. post 2 book, 435. 3 Mod. 186. 2 Ves. Sen. 676. R. T. Talb. 173. Co. Lit. 351. n.; and he may sue as administrator on a bond to his wife during coverture. 2 M. & S. 396, 7. If the wife has judgment dum sola, and thereupon the husband and wife sue out a scire facias and have judgment, but before execution the wife dies, the husband may have a scire facias or an action of debt on it. 1 Salk. 116. Skin. 682. If pending an action by husband and wife the wife die, the suit abates, but if they obtain judgment he may, notwithstanding her subsequent death, issue execution, or support an action of debt on such judgment. 3 Mod. 189. n. g. h. If the husband survive, he may support an action of trespass, &c. for any injury to the land of the wife committed during coverture, Com. Dig. tit. Bar. & F. Z.; but not an action merely for the battery of the wife without stating special damage to himself, and in the latter case, if the wife die pending the action, it will abate. Freem. 225. Selw. 89. Upon the death of the husband, the wife, if she survive him, may sue in respect of all chattels real which her husband had in her right, and which he did not dispose of, and to arrears of rent, &c. which became due during the coverture, upon her antecedent, or their joint demise, (2 Taunt. 181. 1 Rol. Ab. 350. d.) during coverture to which she assents after his death, and to all arrears of rent, and other choses in action to which she was entitled before the coverture, and which the husband did not reduce into actual possession. 1 Roll. Ab. 350. Co. Lit. 351. a. Com. Dig. Bar. & F. F. 1. 1 Chit. on Pl. 4 ed. 21, 2. post 2 book, 434. 2 Ves. Sen. 676. 1 Vern. 396. 1 M. & S. 178. 2 Bla. Rep. 1239. Cro. Jac. 77, 205. Co. Lit. 351. a. n. 1. 2 P. Wms. 496. 2 M. & S. 396. The wife may also sue upon all rights of action in autre droit as executrix and administratrix. 4T. R. 616. Com. Dig. Bar. & F. F. 1. When a feme executrix marries a debtor to the testator, the right of action is only suspended during the coverture; and if she survive she may, in the character of executrix, sue the executors of the husband. Cro. Eliz. 114. 3 Atk. 726. But if the husband made a separate demise of the wife's land, his executor will be entitled to the rent which became due before his death, and not his surviving wife. 2 Taunt. 181. Any action for a tort committed to her or to her personal or real property before marriage, or to her personal or real property during the coverture, will survive to her, R. T. Hardw. 398, 9. Freem. 224. Palm. 313; and she may include in one action tres passes to her land, committed as well in the lifetime of her husband as since his decease. Palm. 313. Com. Dig. Bar. & Feme, 2. A. The consequences of a mistake, and the manner of taking advantage of husband and wife sueing improperly, will be found in 1 Chit. on Pl. 22. 64. 1. Where they must be sued jointly.-When a feme sole who has entered into a contract 66 the union of person; and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, "nemo in propria causa testis esse debet" (a); and if against each other, they would contradict another maxim, nemo tenetur seipsum accusare (b)." But, where the offence is directly against the person of the wife, this rule has been usually dispensed with (c); and therefore, by statute 3 Hen. VII. c. 2, in case a woman be forcibly taken away, and married, she may be a witness against (a) "No one is allowed to be a witness in his own cause." (b) "No one is bound to accuse himself." marries, the husband and wife must in general be jointly sued, though the husband state an account, and expressly promise to pay the debt or perform the contract, 7 T. R. 348. All. 72. 1 Keb. 281. 2 T. R. 480. 3 Mod. 186. Bac. Ab. tit. Baron and Feme, L. 1 Taunt. 217. 254. Com. Dig. tit. Plead.; and a husband cannot be sued alone for the use and occupation of a house by his wife dum sola. 1 Bing. 50. 3 J. B. Moore, 307. S. C. Debt for rent upon a lease for life or years, made to husband and wife, should be against both. 1 Rol. 348. 1. 45, 50. In the case of a feme covert executrix or administratrix, she must be joined with the husband in an action or any personal contract of the deceased. Cro. Car. 519. 145. Actions for torts committed by a woman before her marriage, must be against the husband and wife jointly, Co. Lit. 351. b. Bac. Ab. tit. Bar. & F. L.; and for torts committed by the wife during coverture, as for slander, assaults, &c. or for any forfeiture, under a penal statute, they must be jointly sued. Id. 1 Hawk. P. C. 3, 4. Bac. Ab. tit. Bar. & F. L. In an action of trespass, &c. against husband and wife for her tort, if she die before judgment the suit will abate, but if the husband die or become bankrupt, her liability will continue. R. T. Hardw. 399. Cullen, 392. 2. Where the husband must be sued alone. The husband must in all cases be sued alone where the wife cannot be considered as in person or property creating the cause of action, and the wife can in no case be sued jointly, upon a mere personal contract made during coverture. 8T. R. 545. 2 B. & P. 105. Palm. 312. Taunt. 217. 4 Price, 48. And an action of assumpsit against husband and wife is bad, for as to the wife the promise is void. Palm. 313. 1 Taunt. 217. and see 7 Taunt. 432. 1 Moore, 126. S. C. The husband and wife cannot be sued jointly for the slander of both, for the slander by him he must be sued alone. 2 Wils. 227. Dyer, 19. a. pl. 112, Com. Dig. Bar. & F. Y. Bac. Ab. tit. Bar. & F. L. Detinue can only be supported against the husband, 1 Leon. 312. Bac. Ab. tit. Detinue. 2 Bulst. 308; and for a conversion by the husband and wife trover should in strictness be against him only, 2 Saund. 47. 3 Bar. & A. 685, but the objection would he cured by verdict. 3 B. & A. 685. 3. Where the wife may be sued alone.-The preceding note as to where the wife may sue alone, will be here applicable; for in cases where the wife may sue alone, so upon the same principle may she be sued. (c) State Trials, vol. i. Lord Audley's case. Stra. 633. 4. Where the husband and wife may be jointly sued or not at the election of the plaintiff in the action. Although the husband and wife must be joined in an action on the contract of the wife before coverture (supra), yet if the husband, in respect of some new consideration, as for forbearance, &c. expressly undertake in writing to pay the debt or perform the contract of the feme, he may be sued alone on such undertaking, All. 73. 7 T. R. 349; and when rent becomes due, or there is a breach of covenant during coverture upon a lease to the feme whilst sole, the action may be against both or the husband alone. 6 Mod. 239. 1 Roll. Ab. 348. pl. 45. 50. Thompson Ent. 117. Com. Dig. Bar. & F. Y. 6 T. R. 176. 1 N. R. 174. And on a lease to the husband and wife for the wife's benefit, the action may be against both, or the husband alone. 1 Roll. Ab. 348. 350. Bac. Ab. tit. Bar. & F. L. When the hus. band and wife can in point of law concur in committing the same injury, as an assault, &c. they may be sued jointly for the act of both, and the acquittal of the husband will not preclude the plaintiff from recovering. 1 Vent. 93. 3 B. & A. 685. acc. Yelv. 165. 1 Brownl. 209. Com. Dig. Bar. & F. X. contr. The husband and wife may be jointly sued for enticing away, or harbouring the servant of another, 2 Lev. 63. 5. Who to be sued in case of death of husband or wife. Upon the death of the wife, the husband is not as such liable for any contract of the feme made before coverture, unless judgment has been obtained against him and his wife before her death, and if she die before judgment the suit will abate. 7 T. R. 350. Com. Dig. Bar. & F. 2. c. 3 Mod. 186. R. T. Talb. 173. 3 P. Wms. 410. 1 Chit. on Pl. 4 ed. 47. If the husband neglect during the wife's life to reduce her choses in action into possession, the creditor may sue her administrator for debts due before her marriage, 3 P. Wms. 409. R. T. Talb. 173; and for rent incurred before coverture, or upon a judgment obtained against husband and wife in case of her death, he may be sued. 3 Mod. 189. n. k. 6 Mod. 239. Com. Dig. tit. Bar. & F. 2. B. In case the wife survive she may be sued upon all contracts made before coverture. 7 T. R. 350. 1 Camp. 189. The consequences of suing the husband and wife improperly, and the modes of taking advantage of coverture, are pointed out in 1 Chit. on Pl. 48. 81. 3 Chit. Com. Law, 38. Tidd. Bact. 8 ed. such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; [*444] which the *ravisher here would do, if, by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witness to that very fact (46). (46) The best reason for not allowing a husband or wife to the witnesses against each other is, that if a wife were a witness for her husband she would be under a strong temptation to commit perjury, and if against her husband it would be contrary to the policy of marriage, and might create much domestic dissention and unhappiness, so vice versa of the husband. Bul. N. P. 286. 4 T. R. 679. 2 T. R. 263. The husband and wife cannot be witnesses for each other, and on a prosecution against several for a conspiracy, the evidence of the wife of one of the defendants is inadmissible, 2 Stra. 1094. 5 Esp. Rep. 107; and it is the same in an action for assault, where the cases of the codefendants cannot be separated. Stra. 1095. They cannot be witnesses against each other, therefore the husband cannot be a witness against the wife nor the wife against the husband, to prove the first marriage on an indictment for a second marriage. 2 Hawk. P. C. c. 46. s. 68. Sir T. Raym. 1. 4 St. Tr. f. 754. and see Co. Lit. 6. b. 2 T. R. 263. 2 Lord Ray. 752; but in such case the second wife or husband may be a witness, the second marriage being void. Bul. N. P. 287. 1 Hal. P. C. 693. So in a civil action, a first wife was refused to be admitted to prove her marriage. 2 Lord Ray. 752. In an action brought by a woman as a feme sole, the plaintiff's husband cannot be called to prove the marriage. 2 T. R. 265, 9. Brownl. 47. 12 N. P. 28. Hutt. 16. 1 T. R. 69. 1 Burr. 635. Brownl. 47. The declarations of the wife are not evidence for the husband, 4 Camp. 70; and in an action for criminal conversation the wife's confessions are not evidence for the husband, Bull. N. P. 28. Willes, Rep. 577; but in such action the conduct of the husband and wife, and their letters passing between them, are admissible to shew the terms of affection on which they were living, but the letters ought to be strictly proved. 4 Esp. Rep. 39. 2 Stark. 191. 1 B. & A. 90. S. C. În such action also the letters of the wife to the defendant are not evidence against the husband, though indeed conversations between her and the defendant are. Bull. N. P. 28. Willes, 577. An admission by the wife, even of a trespass committed by her, is not evidence to affect the husband. 7 T. R. 112. So a declaration by the wife in an action against the husband, that the husband absented his house for fear of creditors, is inadmissible in evidence. 3 Moore, 23. and see 1 P. Wms. 610, 611. 12 Vin. Ab. pl. 28. 1 Brownl. 47. So the answer of the wife in equity cannot be read against the husband. 3 P. Wms. 238. Salk. 350. Vern. 60. 109, 110. But letters written by the husband to the wife may be read as evidence against him; and so a discourse between the husband and wife in the presence of a third person may be given in evidence against the husband, like any other conversation in which he may have been concerned. Bull. N. P. 28. 1 Phil. on Evid. 6 ed. 76. Although the husband and wife be not a party to the suit, yet if either be interested in The above rule of law as to the incompethe result of the suit, the other cannot be a tency of the husband and wife being witnesswitness for the one so interested. Lord Ray. es for or against each other is carried to such 744. Stra. 1095. 2 Stark. on Evid. 708. But an extent, that even though the husband conthe interest to disqualify the party must be sent to the wife's being examined, it will not certain and vested. Leach, 133. The wife avoid such rule. R. T. Hardw. 264. 1 Hale, of a bankrupt cannot be examined as to her 48. And this rule holds even after the death of husband's bankruptcy. 1 P. Wms. 610, 1. one of the parties, or a divorce for adultery, or Vin. Ab. pl. 28. 1 Brownl. 47. The husband a divorce à vinculo matrimonii. 6 East, 192. is an incompetent witness for the wife where So a widow cannot be asked as to a converher separate estate is concerned. 1 Burr. 424. sation between her and her deceased husband. 4 T. R. 678. 2 N. R. 331. 2 Stark. on Evid. 1 Ry. & M. 198. 708. Lord Ray. 344. On the other hand, where the interest of the husband consisting in a civil liability would not have protected him from examination, it seems that the wife must also answer, although the effect may be to subject the husband to an action, for where the husband might be examined so may the wife. See 2 Stark. on Evid. 709. And in an action between other parties, the wife may be called to prove that credit was given to her husband. Bull. N. P. 287. 1 Stra. 504. Upon the same principle that the husband and wife cannot be witnesses for or against each other, so in general are their declarations or admissions inadmissible in evidence. 6 T. R. 680. Willes, 577. 3 Ves. & B. 165. Bull. But there are various exceptions to the above general rule thus, in high treason a wife may be admitted as a witness against her husband, because the tie of allegiance ought to be more obligatory than any other. Lord Raym. 1. Bull. N. P. 286. 1 Brownl. 47. See also 2 Keb. 403. 1 H. P. C. 301. By 6 Geo. IV. c. 16. s. 37. commissioners of bankrupts are empowered to examine the bankrupt's wife, touching the discovery of the estate and property of the bankrupt. So in the case of an indictment for forcible abduction and marriage, the woman is a competent witness for the crown. Supra Gilb. Ev. 254. Cro. Car. 482. 8, 9. 1 Hale, 301. 1 Vent. 243. 3 Keb. 193. 3 Stark. on Evid. In the civil law the husband and the wife are considered as two distinct persons, and may have separate estates, contracts, debts, and injuries (d); and therefore in our ecclesiastical courts, a woman may sue and be sued without her husband (e) (47). But though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as in(d) Cod. 4, 12, 1. 711. So in such case, it is said, she is a competent witness for the prisoner. 2 Hawk. c. 46. s. 79. But if the marriage be ratified by voluntary cohabitation, she is incompetent. Hale, 301. 1 Vent. 243. 3 Keb. 193. Cro. Car. 488. Vent. 243. 4 Mod. 3. Stra. 633. Upon an indictment on 1 Jac. I. c. 11. for marrying a second wife, the first being alive, though the first cannot be a witness, yet the second may, the second marriage being void. Supra 1 Hale, P. C. 693. 2 Hawk. P. C. c. 46. s. 68. Sir T. Raym. 1. It is not a settled point whether a man and woman, not actually married but cohabiting together, can be admitted as witnesses for or against each other, but it should seem they can. See 3 Stark. on Ev. 711, 2. 1 Price, 81. Leach C. C. L. 245. In cases of evident necessity, where the fact is presumed to be particularly within the wife's knowledge, there is an exception to the general rule. Thus, a wife may be a witness on the prosecution of her husband for an offence committed against her person. Stra. 633. 1202. Bull. N. P. 287. S. C. 1 East, P. C. 454. 13 East, 171. 1T. R. 698. On the trial of a man for the murder of his wife, her dying declarations are admissible. 2 Leach C. L. 563. 1 East, P. C. 357. The rule does not extend to declarations of the parties, which are in the nature of facts, for in such cases the presumptions which are made are not founded on the credit of the party, but of the fact. Thus the declaration of the wife at the time of effecting a policy on her life of the bad state of her health, is evidence against her husband. 6 East, 188. 2 Stark. on Evid. 712, 3. Where the husband has allowed the wife to act as his agent in the management of his affairs, or any particular business, the representations and admissions of the wife, made within the general scope of her authority as such agent, are admissible in evidence against the husband. Thus in an action against the husband for board and lodging, where it appeared that the bargain for the apartments had been made by the wife, and that on a demand being made for the rent she acknowledged the debt, the plaintiff was held entitled to recover. 1 Esp. 142. And in an action for goods sold at defendant's shop, an offer by the wife to settle the demand was admitted in evidence, as she was accustomed to serve in the shop and transact business in the husband's absence. 1 Bing. 199. 2 Stark. 204. And the admission of the wife, as to an agreement for suckling a child, was allowed to be evidence against him. Stra. 527. 1 Esp. 141. And in an action by a servant for wages, the plaintiff was allowed to VOL. I. (e) 2 Roll. Abr. 298. So where an action was brought by the direction of the wife, in the name of the husband, to recover a sum of money which had been taken from her on suspicion that it was the produce of stolen property, it was considered that what she had said (in the absence of the husband) respecting money, when examined on a charge of being concerned in the robbery, was evidence for the husband. 4 Camp. 92. So in an action against the husband for goods sold to the wife during the time he occasionally visited her, an acknowledgment by the wife of the debt is evidence. 2 Esp. 211. 5 Esp. 145. 1 Camp. 594. And where the wife is accustomed to conduct usiness for the husband, her admission of a debt is available to take the case out of the statute of limitations. Holt C. N. P. 591. 2 Stark. 204. 1 Camp. 394. 4 Camp. 92, 3. pro (47) There are cases in equity where the husband's and wive's interests are considered as distinct and separate, and will allow the husband to sue the wife, 1 Fonbl. 94 to 96. Prec. Ch. 24. 1 Atk. 272. Mitford, 22, 85; or the wife to set up claims adverse to those of her husband, and which she may prosecute by a suit instituted in the name of her chein amy, or next friend, Prec. Ch. 275. 1 Ves. Jun. 21. 2 Ves. 452. 2 Vern. 493, 614. Gilb. Rep. 152. 3 P. Wms. 39. 269. 1 Fonbl. 94, 95. Mitford, 22. 83. and see cases there collected; but it does not seem that a wife can be sued in equity by a stranger, merely in respect of her separate property, except indeed in the cases before mentioned, where she may sue or be sued separately at law. Sec 1 Fonbl. 109. Co. Litt. 133. a. 2 Vern. 104. Salk. 116. 3 P. Wms. 37. Or except when the husband be not within the jurisdiction of the court, and she may be decreed to make good engagements which she has entered into respecting such property. 2 P. Wms. 144. Prec. Ch. 328. 2 Vern. 613. Even in such latter case, the most the court can do, is to call forth her separate property in the hands of her trustees, and to direct the application of it, for the court cannot make a personal decree against a feme covert for the payment of a debt. 1 Fonbl. 110. 1 Bro. Ch. R. 16. 2 Atk. 68. 4 Bro. C. R. 483. 9 Ves. 188. 17 Ves. 365. sed vide 15 Ves. 603. and see ante 443, note (42), as to enforc ing in equity the wife's contracts. When a trust for a married woman is intended, and no trustees named, her husband, taking the legal estate, will be a trustee for her. 2 P. W. 316. 51 |