2 Baker v. Sampson, 14 C. B. (n. s.) 383 (1863) ; Bazeley v. Forder, Law R. 3 Q. B. 559 (1868); Phillipson v. Hayter, Law R. 6 C. P. 38 (1870).
§ 179. In case a husband has obliged his wife to leave his house on account of his ill-treatment to her, or has turned her out of doors without sufficient cause, the husband would be liable for the reasonable costs of a suit at law or in equity instituted against him in behalf of his wife.6 And where a husband, separated from his wife, by his violent conduct renders it necand the true question was, whether the conduct of the defendant was such as to occasion on the part of his wife a reasonable and strong apprehension of personal violence. From what had passed before, she had a reasonable ground for apprehending such violence, and the jury have drawn the proper conclusion. I am surprised at the language ascribed to the court in Hor-wood v. Heffer, because it is abhorrent from every feeling of a man and a Christian. It is not to be endured that the mistress of a house should confine herself to a chamber with bare necessaries, when a prostitute is sitting at the same table with her husband. That cannot be the law of England, because it is not the law of morality and religion." Certainly it seems but just, that if a man may expel his wife from his house for her adultery, she should be entitled to leave the house for his adultery. See Ham v. Toovey, Selw. N. P. 246; Aldis v. Chapman, Selw. N. P. (8th ed.) 272. See also Sykes v. Halstead, 1 Sandf. 483.
1 Blowers v. Sturtevant, 4 Denio, 46.
2 Ewers v. Hutton, 3 Esp. 256; Child v. Hardyman, 2 Str. 876, and the cases collected in 2 Str. 1214, n. 1; Bac. Abr. Baron & Feme, H.; M'Cutchen v. M'Gahay, 11 Johns. 281; M'Gahay v. Williams, 12 Johns. 293; Clement v. Mattison, 3 Rich. 93; Cunningham v. Irwin, 7 S. & R. 247; Henderson v. Stringer, 2 Dana, 293.
3 Govier v. Hancock, 6 T. R. 603.
4 Harris v. Morris, 4 Esp. 41.
5 Williams v. Fowler, M'Clel. & Younge, 269; Shepherd v. Mackoul, 3 Camp. 326. But see Shelton v. Pendleton, 18 Conn. 417.
§ 180. In cases of fraudulent misrepresentation on the part of the wife of her authority to bind her husband, upon principle, she would be liable in trover for the goods, if they were in her possession,-or for their value, if she had parted with them upon a valuable consideration, which she retained.2 If, however, they had been consumed by her, or she had given them away, or had parted with the proceeds of a sale thereof, the seller would be remediless; upon the ground that to render her responsible, in such cases, would be to impose the real liability upon the husband, who, not having authorized her purchase, could not be legally bound thereby. Besides, another and stronger reason is to be found in the policy which throws upon the vendor the risk, in cases where he knowingly sells to a married woman, and which renders it his duty to guard against her deceit, by not implicitly trusting to her representations. If, however, she still retain the goods purchased, or their proceeds, she would, upon principle, be liable therefor in trover; upon the ground that her fraud, which is a tort, annuls the contract, and leaves her in the situation of a person having goods for which she has paid no consideration, and which do not belong to her. She could not, of course, be liable in an action of assumpsit, since the form of the action would virtually, and, at least, for the purposes of the trial, affirm the contract, and she could only be rendered personally responsible upon the ground that there was no contract in existence, because of the fraud; but only a tort. If the action proceed upon the ground of the existence of a contract, the defence that she is not liable personally on her contracts, would be unanswerable. And a married woman may always set up the defence of coverture in an action of contract, at least in a suit at law, although the contract was entered into through a fraudulent representation by her that she was sole.1
1 Turner v. Rookes, 10 Ad. & El. 47; s. c. 2 Perry & Dav. 294. See ante, § 176.
2 Deerly v. The Duchess of Mazarine, 2 Salk. 646; Waithman v. Wakefield, 1 Camp. 120. The same rule would seem to apply to married women as to infants, in this respect. Partridge v. Clarke, 5 T. R. 194; Waters v. Smith, 6 T. R. 451; Pitt v. Thompson, 1 East, 16; Wilkins v. Wetherill, 3 Bos. & Pul. 220; Pearson v. Meadon, 2 W. Bl 903; Luden v. Justice, 1 Bing. 344; 8. c. 8 Moore, 346.
§ 181. A vendor could not, however, retake from a married woman goods obtained from him without a false representation, even although she should still retain them in her possession; because as her possession was acquired by contract, she could not be made responsible thereon, and there being no tort, trover could not be sustained. Besides, it would not, in such a case, be by any means evident, that the seller did not trust to the personal credit of the woman, which he might fairly do; for, although he could not maintain an action against her, personally, for the purchase-money, yet the consideration, on her part, would be good, and sufficient to support the contract, though it would not be valuable.
1 See ante, § 111. In Liverpool Adelphi Loan Association v. Fair-hurst, 9 Ex. 422; 26 Eng. Law & Eq. 396, Pollock, C. B., said: " The question in this case is, whether an action will lie against a husband and wife, for a false and fraudulent representation by the wife to the plaintiffs, that she was sole and unmarried, at the time of her signing a promissory note as surety to them for a third persori, whereby they were induced to advance a sum of money to that person. We think the action will not lie. A feme covert is unquestionably incapable of binding herself by a contract; it is altogether void, and no action will lie against her husband, or herself, for the breach of it. But she is undoubtedly responsible for all torts committed by her during coverture, and the husband must be joined as a defendant. They are liable, therefore, for frauds committed by her on any person, as for any other personal wrong. But when the fraud is directly connected with the contract with the wife, and is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, and the husband be sued for it together with the wife. If this were allowed, it is obvious that the wife would lose the protection which the law gives her against contracts made by her during coverture; for there is not a contract of any kind which a, feme covert could make, whilst she knew her husband to be alive, that could not be treated as a fraud; for every such contract would involve in itself a fraudulent representation of her capacity to contract. Accordingly, it has been held in the case cited, and so much commented upon, during the argument (Cooper v. Witham, reported in 1 Lev. 247), that the wife could not be bound in such a case. It is true that Twisden, J., assigned another reason, namely, that the wife having represented herself to be sole, and induced the plaintiff to marry her, it was a felony in her, and so no action could lie till the felony was tried; but it was said, that if the wife had been pardoned, by which that objection was removed, yet it seemed the action would not lie, and the reason was that ' the fact sounded in contract.' The case is also reported in 1 Sid. 375, and there one of the reasons stated is, that the ground of the action was 'the communication and contract of the wife.'