Michaelmas Term, IN THE SECOND YEAR OF THE REIGN OF WILLIAM IV.—1831. Ex parte FRANKS, In the matter of KEZIA FRANKS, a Bankrupt.—p. 1. The wife of a convicted felon sentenced to transportation beyond the seas for the term of fourteen years, but removed to and confined on board one of the hulks in this country, is liable to be made a bankrupt, if she trade on her own account, although she is in the habit of visiting her husband and holding communications with him during his confinement. THE following case was, by the order of his Honor the Vice Chanceller, submitted to the Judges of this Court for their opinion : Joseph Franks, the husband of Kezia Franks, who for several years had carried on the trade or business of a china, glass, and earthenware dealer, in Wickham Street, Portsea, in the county of Hants, was, in 1821, convicted of feloniously having in his possession Bank of England notes, knowing them to have been forged, and was sentenced to be transported to parts beyond the seas for fourteen years. After sentence, the said Joseph Franks was removed to one of the hulks lying in the harbor of Portsmouth for the reception of convicts, where he has remained ever since, and where the said Kezia Franks, by the permission of the persons in charge of the convicts there, has been in the habit of visiting him and holding occasional communications with him; and, since his conviction, the said Kezia Franks has carried on the said trade or business of a china, glass, and earthenware dealer, at Portsea aforesaid, for the benefit and support of herself and family. On the 25th July, 1827, a commission of bankrupt was awarded and issued against the said Kezia Franks, by the name and description of Kezia Franks, late of Wickham Street, Portsea, in the county of Hants, glass and china dealer, dealer and chapman, now a prisoner confined for debt in the King's Bench prison, in the county of Surrey; and the said Kezia Franks has thereupon been found and declared a bankrupt by the commissioners acting under the said commission. The said Kezia Franks, in conducting such business as aforesaid since her husband's conviction, though she never gave out or pretended that she was an unmarried woman, was in the habit of accepting bills of exchange in her own name, and giving the same to persons who gave her credit; and the bills of parcels, receipts, and accounts of and for goods sold to her, were in the name of Mrs. Kezia Franks; but it was generally known to the persons with whom she dealt, that she was married, and was continuing to carry on the business for the benefit of herself and family. VOL. XXVIII.-31 Henry Jacobs the younger was the petitioning creditor under the commission, and his debt was on two bills of exchange drawn by one Lewis Jacobs for and on the behalf of one Henry Jacobs, upon and accepted by the said Kezia Franks in her own name; and which said two bills of exchange were afterwards, and before they came due, indorsed to the said Henry Jacobs the younger, for a valuable consideration. At the time of taking such bills, the said Henry Jacobs the younger did not know that the said Joseph Franks (the husband of the said Kezia Franks) was a convict on board the hulks, or that he was alive, but he had notice thereof previous to the time when he petitioned for such commission. The question for the opinion of the court was, whether, at the date and suing forth the said commission of bankrupt against the said Kezia Franks, on the said 25th July, 1827, the said Kezia Franks was a trader, and, as such trader, liable to become bankrupt within the true intent and meaning of the act of Parliament passed in the sixth year of the reign of his late Majesty King George the Fourth, entitled "An act to amend the laws relating to bankrupts." The case came on for argument in the last term. Mr. Serjeant Jones, for Henry Jacobs, the petitioning creditor, submitted that Kezia Franks, at the time of suing out the commission against her, was competent to trade, and in a condition to sue and be sued on contracts relating to the carrying on business for the benefit of herself and family, and consequently, that she was liable to be made a bankrupt, within the intent and meaning of the bankrupt laws. Admitting that, since the case of Marshall v. Rutton, 8 Term Rep. 545, a feme covert cannot contract and be sued as a feme sole, although she be living apart from her husband, and have a separate maintenance secured to her by deed; yet here, as Franks, the husband, was convicted of felony, and sentenced to transportation beyond the seas for the term of fourteen years, he must be considered as civilly dead, until the expiration of that period. In Sparrow v. Carruthers, 1 Term Rep. 7, n; S. C. 2 Sir Wm. Bl. 1197, in an action upon a promissory note given by a woman who kept a public house, for malt supplied, and she proved her coverture; and the plaintiff showed that her husband had been transported, and that his time was not yet expired; Mr. Justice Yates thought that the transportation suspended the disability; and Lord Mansfield said he recollected a similar case before him at Maidstone, which he had determined in the same manner and his Lordship, in giving his opinion in Corbett v. Poelnitz, 1 Term Rep. 8, said "Where a husband is in exile, or has abjured the realm, and credit has been given to the wife alone, justice says she must pay, for the husband cannot be sued. So it is in the case of transportation, though the case is not exactly the same; for there the absence is only temporary, because the husband may come over and be sued afterwards. Why, then, is it so established? Because the wife acts as a single woman, gains credit as such, receives the benefit, and shall be liable to the loss: and where she has an estate to her separate use, in justice she ought to be liable to the extent of it" The general principle is, that, where a woman has a separate estate, and acts and receives credit as feme sole, she shall be liable as such. In Walford v. The Duchess de Pienne, 2 Esp. Rep 554, where the husband of a married woman, a foreigner, went abroad, but declared his intention of returning to this country in a short time, but did not do so, Lord Kenyon returned that the wife was liable for debts contracted in his absence. In the case of De Gaillon v. L'Aigle, 1 Bos. & Pul. 357, where the husband resided abroad, and the wife traded and obtained credit in this country as a feme sole, she was held not to be liable for her own debts, unless she represented herself as a feme sole; yet Mr. Justice Baller said "There is another set of cases of a very different nature from those which have been relied on by the defendant, but which are much more applicable to this case. The first of these is the Lady Belknap's case, 2 Hen, 4. 7. a. Now let us see if any sound distinction between that case and this can be maintained. The husband there was banished, but it is not stated whether he was banished for one year, or for five years, or for life: it was held sufficient that he was in banishment at the time when Lady Belknap's contract was made; and I can see but one principle on which the case could have been decided, viz: that the rights known to exist in law between husband and wife were not interfered with by allowing the wife to be taken in execution: as the husband was banished (though it is not stated whether for life or not), the matrimonial rights during his banishment were at least suspended:" and Mr. Justice Heath said " The cases of banishment and transportation of the husband are directly in point. Besides, it is for the benefit of the feme covert that she should be liable to an action in such a case as this, otherwise she could obtain no credit, and would have no means of gaining her livelihood" In Carrol v. Blencow, 4 Esp. Rep. 27, Lord Alvanley held that a married woman, whose husband had been transported for seven years, might maintain an action as a feme sole, on the ground of the husband having abjured the realm, even although the term of his transportation had expired, for that, if in fact he had not returned, the right of action remained. Although in Lewis v Lee, 3 Barn. & Cress. 291; S. C. 5 Dow. & Ryl. 98, it was decided that a woman divorced a mensa et thoro for adultery, and living separate and apart from her husband, could not be sued as a feme sole, yet it was on the ground that a divorce for adultery does not destroy the relation of marriage, but merely suspends for a time some of the obligations arising out of that relation; and Lord Chief Justice Abbott referred to Hatchett v. Baddeley, 2 Sir W. Bl. 1082, where Mr. Justice Blackstone said "That a feme covert cannot be sued alone, unless in the known excepted cases of abjuration, exile, and the like, where the husband is considered as dead, and the woman as a widow, or else as divorced a vinculo." In Jewson, v. Read, Lofft, 142, Lord Mansfield admitted that a feme covert might plead without her husband, he being transported, on the ground that transportation is a temporary death, and analogous to abjuration of the realm. So, in this case, Kezia Franks might sue and be sued; and it is found as a fact in the case, that she carried on trade for the benefit and support of herself and family. Lord Coke says, Co. Litt. 133, (a)" An abjuration, that is, a deportation forever into a foreign land, like to 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 although he says:-"But if the husband by act of Parliament, have judgment to be exiled but for a time, which some call a relegation, that is no civil death :" yet Mr. Hargrave, in a note says, (note 209) But though it is not a civil death, yet, for the time, the effect is the same to the wife; and, therefore, it is equally necessary that she should have a right to sue alone;" and he refers to 4 Viner's Abridgment, page 152; and I Comyn's Digest, page 18, 3d edit. 23, as authorities in support of that proposition. Mr. Serjeant Spankie, contrà.-In Marshall v. Rutton, Lord Kenyon, in delivering the judgment of the court said, 8 Term Rep. 548,-" We find no authority in the books to show that a man and his wife can, by agreement between themselves, change their legal capacities and characters, or that a woman may be sued as a feme sole, while the relation of marriage subsists, and she and her husband are living in this kingdom." That doctrine is founded on policy and good sense, and is now the settled law of the land. In Corbett v. Poelnitz, Lord Mansfield said, 1 Term Rep. 8,-" There is a rule of positive law which is to be adhered to and preferred, though in some particular cases it may seem productive of hardship and oppression. By this general rule, a married woman can have no property real or personal. Her contracts are entirely and universally void; for her contracts, even for necessaries, are the contracts of her husband: she cannot be sued or taken in execution." Although exceptions have been made to that rule where the husband is in exile, or has abjured the realm, they cannot apply to a case of transportation for a term of years, especially where the convict remains in this country. Exile and profession are now out of the question; and, by the latter, when a man entered into any religious order, whereby he was shut up from all the common offices of life, it was properly named a civil death. So, in the case of abjuration, the party accused had the privilege of forty days to confess his guilt before the coroner before he took the oath of abjuration, which was, to depart the realm for ever. But abjuration can only apply to a case where there is a commutation for the punishment of death on the party being convicted of a capital felony, by transportation for life. In Sanchez, de Sancto Matrimonii, Cap. 9, de Debito Conjugali, it is said-" Homo non potuit exuere uxorem" Lord Coke says, Co. Litt. 132, b.,-" A wife is disabled to sue without her husband, as much as a monk is without his sovereign; and yet we read in books, that, in some cases, a wife hath ability to sue and be sued without her husband, for the wife of Sir Robert Belknap, one of the Justices of the Court of Common Pleas, who was exiled or banished beyond sea, did sue a writ in her own name without her husband, he being alive; whereof, one said— "Ecce modo mirum, quod fœmina fert breve regis, Lord Coke also refers to Maltraver's case. Sibel B.'s case, and Weyland's case ; and although he states that he had cited the resolution in the latter case at large, yet, on reference to the Rot. Parl. page 66, it appears to have been a case where the wife claimed her own land, she being seized in her own right and entitled to it independently of her husband, by virtue of a fine. So, in Belknap's case, 2 Hen. 4, fol. 7, the wife sued for her own land; and in Maltraver's case, 10, Edw. 3 fol. 53, it was merely ruled that the wife should answer over. These cases, therefore, only show, that where the husband abjured the realm, the wife might be considered as a feme sole, when she ought to recover seisin of lands which she held in her own right. But if a man abjured the realm, he could never return without the leave of the king, and, if he did, he was treated as a felon, and punishable with death. But transportation bears no resemblance to abjuration for life. On the consummation of the marriage, the husband is possessed of all his wife's personal property, and whatever she acquires afterwards is his property, and obtained for his use. Besides, a convicted felon may be transported for an offence which is not capital, and for a period shorter than life, namely, for seven or fourteen years; and when such period has expired, and he returns to this country, he is not only pardoned, but restored to all his former rights and capacities; and it is quite clear that the vinculum matrimonii is not broken or destroyed by the transportation of the husband for a term of years, but is only suspended during that period. By the statute 5 Geo. 4, c. 84, s. 26, it is enacted, "that it shall be lawful for every felon under sentence of transportation, who has received any remission from the governor of New South Wales, or any other colony, while such felon shall reside in a place where he lawfully may reside under such sentence, to maintain any action or suit for the recovery of any property acquired by such felon since his conviction;" and the statute 19 Geo. 3, c. 74, s. 27, enacts, "that, where any male person shall be lawfully convicted of grand larceny, or any other crime, except petty larceny, it shall be lawful for the court before whom any such person shall be so convicted, to order and adjudge that such person, appearing to be of competent age, and free from any bodily infirmity, shall be punished by being kept on board ships or vessels properly accommodated for the security, employment, and health of the persons to be confined therein, and by being employed in hard labor in raising sand, soil, and gravel from, and cleansing the river Thames, &c., for any term not less than one year, nor more than seven years, in case the offender should be |