1 Ex parte Franks, 7 Bing. 762; Marsh v. Hutchinson, 2 Bos. & Pul. 231; Year-Book, 2 Henry IV. 7.
2 Spooner v. Brewster, 2 Car. & P. 35; Boggett v. Frier, 11 East, 304, note (Day's ed.); Ex parte Franks, 1 Moo. & S. 1.
3 Year-Book, 19 Edw. I. cited Co. Litt. 133 a. 4 Year-Book, 2 Henry IV. 7. 5 Co. Litt. 132 b. 6 Boggett v. Frier, 11 East, 304; Co. Litt. 133 (note 209); Marsh v.
States, the wife is enabled, by statute, to demand a divorce a vinculo matrimonii, if the husband be sentenced to imprisonment for the term of life, or for seven years or more; and his pardon will not revive his conjugal rights, after a divorce for such cause.1
§ 147. Second. Another exception is where the husband has been absent and unheard of for a period of seven years, in which case the law, presuming that he is dead, allows to the wife all the rights of a feme sole to contract; at least, unless it be proved that he is still living.2
§ 148. Third. Another exception is by the custom of London, by which a married woman may carry on a trade separately from her husband, and on her own account, and if the husband do not interfere to oppose it, she may, as to all the transactions connected with that business, be treated as a single woman. She may sue and be sued; and although the husband must be made a nominal party to the suits, both by and against her, yet she is considered as the real party in interest, and the judgment does not affect the husband.3
§ 149. Fourth. Another exception obtains in cases where a husband utterly abandons his wife, and leaves the country without making any provision for her support.4 Such an abandoned
Hutchinson, 2 Bos. & Pul. 231. But see Ex parte Franks, 1 Moo. & S. 1; s. c. 7 Bing. 762, in which it was more recently decided, that the wife of a convicted felon, sentenced to transportation for fourteen years, but detained in confinement in the hulks, was liable to be made a bankrupt, if she traded on her own account.
1 Mass. Rev. Stat. ch. 76, § 5.
2 Robinson v. Reynolds, 1 Aik. 174.
3 Bac. Abr. Baron & Feme, M.; Beard v. Webb, 2 Bos. & Pul. 93; Caudell v. Shaw, 4 T. R. 361. The same custom prevails in some of the United States, as in Pennsylvania and South Carolina. Burke v. Winkle, 2 S. & R. 189; Newbiggin v. Pillans, 2 Bay, 162; State v. Collins, 1 M'Cord, 355; McDowall v. Wood, 2 Nott & M'Cord, 242; City Council v. Van Roven, 2 M'Cord, 465; Megrath v. Robertson, 1 Des. 445.
4 Abbot v. Bayley, 6 Pick. 93; 2 Story, Eq. § 1387; Story on Part. § 11; 2 Roper on Husband and Wife, ch. 18, § 4, p. 174, 175; Cecil v. Juxon, 1 Atk. 278; Lamphir v. Creed, 8 Ves. 599; Com. Dig. Chancery, 2 M. 11. This rule has been extended by the Revised Statutes of Massachusetts, to all cases where a married woman shall come from any other State or country into this State without her husband, he having never donment will be implied, whenever the husband deserts the wife, and leaves the country with a declared intention not to return, or under circumstances which unequivocally indicate such an intention.1 Going to California to reside and never returning, lived with her in Massachusetts. Gregory v. Paul, 15 Mass. 34. See also De Gaillon v. L'Aigle, 1 Bos. & Pul. 357; Walford v. Duchesse de Pienne, 2 Esp. 554.
1 Gregory v. Pierce, 4 Met. 478; Clark v. Valentine, 41 Ga. 143 (1870). Gregory v. Pierce was a case of assumpsit brought upon a promissory note made by a married woman (the defendant), who lived in Massachusetts, and whose husband left her and went to Ohio in 1818, and there remained till his death in 1832. Mr. Justice Shaw, in delivering the judgment, said, " The principle is now to be considered as established in this State, as a necessary exception to the rule of the common law, placing a married woman under disability to contract or maintain a suit, that where the husband was never within the Commonwealth, or has gone beyond its jurisdiction, has wholly renounced his marital rights and duties, and deserted his wife, she may make and take contracts, and sue and be sued in her own name, as a feme sole. It is an application of an old rule of the common law, which took away the disability of coverture when the husband was exiled or had abjured the realm. Gregory v. Paul, 15 Mass. 31; Abbot v. Bayley, 6 Pick. 89. In the latter case, it was held, that in this respect, the residence of the husband in another State of the United States, was equivalent to a residence in any foreign state; he being equally beyond the operation of the laws of the Commonwealth, and the jurisdiction of its courts. But, to accomplish this change in the civil relations of the wife, the desertion by the husband must be absolute and complete; it must be a voluntary separation from and abandonment of the wife, embracing both the fact and intent of the husband to renounce de facto, and as far as he can do it, the marital relation, and leave his wife to act as a feme sole. Such is the renunciation, coupled with a continued absence in a foreign state or country, which is held to operate like an abjuration of the realm. In the present case, the court are of opinion, that the circumstances stated are not sufficient to enable the court to determine whether the husband had so deserted his wife, when the note in question was given. The only facts stated are, that he was insolvent when he went away; that he was absent, residing seven or eight years in Ohio; that he made no provision for his wife and her family, after 1816; and that she supported herself and them by her own labor. But it does not appear that he was of ability to provide for her; that he was not in correspondence with her; that he declared any intention to desert her, when he left, or manifested any such intention afterwards; or that he was not necessarily detained by sickness, imprisonment, or poverty. The fact of desertion by a husband may be proved by a great variety of circumstances, leading with more or less probability to that conclusion; as, for instance, leaving his wife, with a declared intention never to return; marrying another woman, or otherwise living in enables the wife to sue and be sued as a feme sole.1 So, also, when the wife is compelled by the cruelty of the husband to flee his house, and she quits the country, and he provides no means for her support, and maintains no relation with her, she will be entitled to sue and be sued as a feme sole.2 In the United States this rule, also, would apply to cases where the wife was forced to leave the husband and live in a different State,3 the States being considered in view of this rule as foreign countries. The presumption in all such cases, however, is that the husband will return, in case he have ever resided in the country; but it may be rebutted, - the real intent of the husband being the criterion of the right of the wife to contract as a feme sole. This exception is but an extension or new application of the old common-law rule, that whenever the husband was banished or had abjured the realm, his wife could contract as a feme sole.4 adultery, abroad; absence for a long time, not being necessarily detained by his occupation or business, or otherwise; making no provision for his wife, or wife and family, being of ability to do so; providing no dwelling or home for her, or prohibiting her from following him; and many other circumstances tending to prove the absolute desertion before described. The general rule being that a married woman cannot make a contract or be sued, the burden of proof is upon the plaintiff to show that she is within the exception. In an agreed statement of facts, such fact of desertion, using this term in the technical sense above expressed, as a total renunciation of the marriage relation, must be agreed to, or such other facts must be agreed to, as to render the conclusion inevitable. If the facts stated are all that can be proved in the case, the court would consider that the plaintiff had not sustained the burden of proof, and therefore could not have judgment. See Williamson v. Dawes, 9 Bing. 292; Stretton v. Busnach, 4 Moo. & S. 678; s. c. 1 Bing. N. C. 139; Bean v. Morgan, 4 M'Cord, 148. But apprehending that the statement may have been agreed to, under a misapprehension of the legal effect of the facts stated, and that other evidence may exist, the court are of opinion, and do order, that the agreed statement of facts be discharged, and a trial had at the bar of the Court of Common Pleas."See also Bean v. Morgan, 4 M'Cord, 148; and 2 Kent, Comm. 157.