At common law, married women, with certain limitations, cannot contract, sec 76. But woman with separate estate may hind such estate, sec 77. May contract for services, but not for goods or money, sec 77 a. Cannot bind future acquired estate, sec 78. By statute disability has been much qualified, sec 79. Divorce creates independent liability, sec 80. Otherwise as to mere separation, sec 81. Her contracts before marriage pass to husband, sec 82. Husband liable for wife's torts, sec 83. Wife may bind husband as agent, sec 84.

Husband may be wife's agent, sec 85.

Husband cannot divest himself of his duty by his own wrong, sec 86.

But liability ceases when wife leaves without cause, sec 87.

And when wife separates with allowance, sec 88.

Married women may be bound by estoppel, and may enforce executed contracts, sec 89.

Contracts for future separation invalid, sec 90.

Agreements between husband and wife void, sec 91.

Husband liable for necessaries furnished wife, sec 92.

Sec 76

By the common law of England, a married woman may bind herself and her estate by contract, in the following cases: 1. When her husband has been absent, unheard from for seven years, though he may really at the time be alive;1 and this has in some states been extended to all cases of final and permanent abandonment.2 But mere temporary desertion does not by itself have this effect.3 Hence, a note given by a wife, whose husband had deserted her, while living apart from him, for necessaries used by her in her own support, is void, and her promise to pay it, made after her divorce and before her remarriage, is without consideration and invalid.1 -When, however, the desertion is such as to entitle her to an independent domicil, in which she is thrown on her own resources for 8upport,then she may independently sue and be sued.2 2. When her husband has been banished from the country, or when a punishment imposed on him has been commuted on the condition of expatriation, though on his return her independence in this respect is lost.3 3. Where the husband is an alien, and the wife, deserted by him, does business as a feme sole.4 4. When, by local custom, she is a feme covert trader, her husband not meddling with her trading.5 In Pennsylvania this privilege is given and limited by statute.6 Desertion, leaving the wife dependent on her own exertions, may entitle her to be regarded as a feme sole trader.7 In South Carolina, also, the custom of London in this respect is recognized. But it is limited to matters of shop-keeping.8 With these exceptions, a married woman is at common law incapable of making a contract on which she can sue or be sued. Even for her earnings, at common law, he alone can sue, though living separate from her.1

At common law married women, with certain exceptions, cannot contract.

1 Doe v. Jesson, 6 East, 80; Loring v. Steineman, 1 Mete. Mass. 211 ; King v. Paddock, 18 Johns. 141. In Valentine v. Ford, 2 Browne, 193, it was held that an absence of two years might have this effect. In Black v. Tricker, 59 Penn. St. 13, desertion by husband, leaving the wife dependent on her own exertions for support, was held to entitle her to be decreed a feme sole trader. As to the presumption of death in such cases see Whart. on Ev. sec 1274. And see Schouler, Husb. and Wife, sec 89 et seq.

2 Rhea v. Renner, 1 Pet. 105; Ayer v. Warren, 47 Me. 217; Gregory v. Pierce, 4 Mete. Mass. 478; Black v. Tricker, 59 Penn. St. 13.

3 Infra, sec 82.

1 Hayward v. Barker, 52 Vt. 429.

2 Infra, sec 81.

3 Carrol v. Blencow, 4 Esp. 27; Spooner v. Brewster, 2 C. & P. 35 ; Comwell v. Hoyt, 7 Conn. 420 ; Trough-ton v. Hill, 2 Hayw. 406. That a sentence of the husband to transportation, although he has not yet been sent away, enables her.to bind herself, see Franks ex parte, 7 Bing. 762; and also when he remains away after his transportation. Carrol v. Blencow, 4 Esp. 27.

4 On this topic, Mr. Pollock, 3d ed. 81, after commenting on Walford v. Duchess de Pienne, 2 Esp. 554; Franks v. same deft., ibid. 587; Gaillon v. L'Aigle, 1 Bos. & P. 357; Kay v. Duchess de Pienne, 3 Camp. 123; Barden v. Keverberg, 2 M. & W. 61 ; concludes, "that it would be enough to show that the husband never had an English domicil, or, at all events, to show that he never resided in England." In De Wahl v. Braune, 1 H. & N. 178, it was held that a wife could not sue during coverture, although her husband was an alien, resident in Russia, while she was an English subject. In the same case it was further held that the fact that the husband was an alien enemy does not give the wife business capacity.

5 Caudell v. Shaw, 4 T. R. 361; Beard v. Webb, 2 Bos. & Pul. 93 ; and see Schouler, Husband and Wife, sec 97 et seq.

6 Jacobs v. Featherstone, 6 W. & S. 646.

7 Valentine v. Ford, 2 Brown, 193. Whether a decree of court is necessary, see Black v. Tricker, 59 Penn. St. 13; Hentz v. Clawson, 34 Leg. Int. 5; Cleaver v. Scheetz, 70 Penn. St. 496 ; Westernitz v. Porter, 86 Penn. St. 35. As to statute giving deserted wife this privilege, see King v. Thompson, 87 Penn. St. 365.

8. Surtell v. Brailsford, 2 Bay, 333; McDowall v. Wood, 2 Nott & McC. 242; Starr v. Taylor, 4 McCord, 413; and see Radford v. Carwile, 13 W. Va. 572.