sary consequence of the custom, as otherwise she would be liable to perpetual imprisonment. In this case, it was admitted by the judges in their arguments, that the husband had a right, as between her and himself, to seize her separate effects, and to prevent her separate trade in future, and that she had no remedy against him from the custom; but that he could not interfere with these effects so as to injure her creditors, who might follow the effects into the hands of the husband.

It would seem also, that an action brought against a feme covert and her husband on the custom of London, on the suggestion that she was a sole trader, cannot be removed from the Mayor's Court in London by habeas corpus cum

causa.

f See also 2 Black. Com. 477.

g Pope v. Vaux and wife, 2 Black. Rep. 1060.

A married

woman

rested on

civil pro

cess,

mesne or

final.

a

A MARRIED Woman, like any other individual, may be may be ar- arrested on civil process directed against her; but, as she is incapable of possessing property, it necessarily follows, that her arrest might lead to an imprisonment for life, unless there existed a jurisdiction to relieve her, when the circumstances of her case would warrant its interference in her favour. For, if her husband be either not to be found, or, if there be a collusion between him and the plaintiff in the suit, her imprisonment might be extended to an indefinite period, as she might not have the means of discharging the debt, or of giving security for her appearance. Accordingly the courts of law have uniformly exercised a discretionary power of discharging her from custody, or of detaining her in it, as the peculiar circumstances might have required.

Arrest of married

woman, as a feme sole, irregular; and she

will be discharged, unless she has indu

ced.

A married woman may be arrested either on mesne, or on final process, and she may be arrested either alone, as a feme sole, or as a married woman, either alone, or jointly with her husband.

*If an action be brought against a married woman, as a feme sole, and she be arrested on mesne process, such a proceeding would be manifestly irregular, but it would rest with the court to decide, whether they would interfere to cure the error by the discharge of the defendant merely on motion, or whether they would put her to plead her coverture in bar of the action. And the general course adopted

a 1 T. Rep. 486.

on this subject is, that she will be discharged on motion,
unless she has induced the plaintiff to believe that she was
an unmarried woman, either by her express declarations to
this effect, or else by the nature of the transaction itself,
which is the object of the suit. At one time it seems to
have been considered necessary for the purpose of entitling
a married woman to the benefit of this summary interposi-
tion of the court, that the fact of her marriage should have
been notorious and easily ascertainable on inquiry,' but
now the proof of her marriage by affidavit is sufficient to
entitle her to her discharge. But if it appear that the
defendant represented herself to be an unmarried woman,
and thereby induced the plaintiff to give her credit, she
disentitles herself by this fraud to her discharge, and will
be left to her plea of coverture. As in Partridge v. Clarke,©
where an application was made to discharge the defendant
out of custody on common bail in an action of assumpsit, on
the affidavit of the defendant that she was a married woman;
and on the production of a copy of the register of her
marriage, an affidavit was made by the plaintiff, in which he
stated, that when the defendant applied to him for the loan
of the money for which the action was brought, he objected
to her the rumour of her being a married woman, which
she positively denied. The Court discharged the rule, and
refused to interfere in a summary way.
In like manner, in
Luden v. Smith, where it appeared that the defendant had
acted with duplicity towards the plaintiff, and that he did
not know her to be a married woman until a great part of
the debt had been incurred, and that at the time of the ap-
plication she was residing in Scotland; the Court refused to
cancel a bail-bond executed by her on her arrest, and to
permit her to file common bail.

d

And if a married woman make herself a party to a negotiable instrument, that will be considered tantamount to a declaration by her that she is an unmarried woman, so that

b Pearson v. Meadon, 2 Black. Rep. 903.

c 5 T. Rep. 194.

d 1 Bing. 344.

plaintiff to

believe her

sole.

Not enti

discharge,

if she be

arrested as a party to

ble instru

ment.

if she be arrested by any one of the parties, who was ignorant of her marriage, she will not be discharged on common bail. As in Prichard v. Cowlan, where a motion was tled to her made for a rule to show cause, why the bail-bond in this action should not be given up to be cancelled, on affidavit that the defendant was a married woman, that she had been negotia- arrested as the acceptor of a bill of exchange, drawn by one Manneville, and indorsed to the plaintiff, and that the drawer, when he drew the bill, knew the defendant was a married woman. Chief Justice Gibbs said, "But the drawer is to be supposed to have indorsed it over to the plaintiff for a valuable consideration. Is not this bill such a representation of the defendant as a single woman, as falls within the rule of this court, not to interfere, where a married woman has held herself out as single?" The rule was accordingly refused. In like manner, in Jones v. Lewis,1 cause was shown against a rule obtained to discharge the defendant on entering a common appearance, on the ground that she was a married woman, which was sworn to by a third person. The affidavit on the part of the plaintiff stated that the action was on a bill of exchange drawn by defendant on one Palmer, who accepted it, and indorsed it to plaintiff. That plaintiff not being able to find the acceptor, applied to the defendant for payment, on which occasion she did not state herself to be a married woman. By the Court, "Under all the circumstances, we certainly will not discharge the defendant. She is the drawer of the bill, and she does not venture to swear that she is a married woman."

Will be discharged, where plaintiff knew at

the time of contracting the debt that she

was married.

But where it appears that the plaintiff knew the defendant was a married woman at the time of contracting the debt, she will be discharged on common bail; and it was so ruled in Waters v. Smith. In this case it was contended for the plaintiff, that the ground of the application was, if true, a defence to the action, and that this was not the time

for making such an objection. That coverture, like infancy, was a fact to be established by evidence, and that if the former were permitted to be gone into this stage of the proceeding, there was no reason why the latter should not also, and yet that had never been attempted. It was also sworn in support of the rule for the defendant's discharge, that the plaintiff knew she was a married woman at the time when the debt was contracted. Per Curiam, "Though, when a married woman imposes on a trader, and contracts on her own credit, we will not relieve her in a summary way, yet, according to the latest authority with which the Master has furnished us, where it has clearly appeared that the defendant was a feme covert, and there has been no contrariety of evidence about that fact, the Court has discharged her out of custody on filing common bail. Therefore, let the rule be made absolute." So in Wardell v. Gooch, where an application was made that the defendant should be discharged out of custody on filing common bail, on an affidavit that the plaintiff knew the defendant was a married woman at the time the debt was contracted. The rule was opposed, on the ground that the defendant was living apart from her husband at the time, and had a separate maintenance. But Lord Ellenborough said, that he saw no objection to relieving her in this summary way, the plaintiff having dealt with her, knowing her to be a married woman, And in March v. Capelli,' a similar application had been granted, where the plaintiff knew at the time of the credit given to the defendant, that she had a husband living abroad, though under terms of separation from her.

And a married woman will not only be discharged, when it appears that the plaintiff knew she was married before he had her arrested, but he will be obliged to pay the costs of the application, notwithstanding she had contracted the debt as a feme sole, and though when she did

h7 East, 582. 3 Smith's Rep. 576.

i Note (a) to Pitt v. Thompson, 1 East, 17.

Entitled to

her discharge, plaintiff knowing

her to be married when the debt was

contracted, though she

lived from

her hushad a sepaband, and

rate main

tenance.