74 $ BARON and FEME. 
nied ;• for it (nail be intended that the was divorced : be- 
fides the hulband is an alien enemy, and in that cafe, why 
is not his wife chargeable as a feme foie ? i Salk. ri6. 
Dectiy v. Duchej's oj Mazarine. 
By the cuftom of London, if a feme covert trades by 
herfelf, in a trade with which her hufband does not inter¬ 
meddle, fhe may fne and be fued as a feme foie. 10 Mod. 
6. But in.fuch cafe flie cannot give a bond and warrant 
of attorney to confefs a judgment : -and, when fued as a 
feme foie, fhe limft be fued in the courts of the city of 
London ; for, if fued in the courts above, the hufband 
mlift be joined. So the wife alone cannot bring an adtion 
in the courts above, but only in the city courts ; and this 
even though her hufband be dead ; if the caufe of adtion 
accrued in his life-time. yTerni Rep. 361, 2. Where a 
married man is tranfported for any felony, &c. the wife 
may be fued alone, for any debt contracted by her, after 
the tranfportation. 1 Term Rep. 9. 
VII. Husband how far anfwerable for his Wife in 
Criminal Cases. —In fome cafes the command or au¬ 
thority of the hufband, either exprefs or implied, will 
privilege the wife from punifhtnent, even for capital of¬ 
fences. And therefore if a woman commit bare theft or 
burglary by the coercion of her hufband, (or even in his 
company, which the law coriftrues'a coercion,) (lie is not 
guilty of any crime, being confidered as adding by com- 
pulfion, and not of her own will. But for crimes mala 
in fe, not being merely offences againft the laws of fociety, 
fhe is anfwerable ; as for murder and the like ; not only 
becaufe thefe. are of a deeper die; but alfo, fince in a ffate 
of nature no one is in fubjedlion to another, it would be 
unreafonable to fereen an offender from the punifliment 
due to natural crimes, by the refinements and fubordina- 
tions of civil fociety. In treafon alfo, no plea of cover¬ 
ture (hall excufe the wife : no prefumption of the hutband’s 
coercion Hi all extenuate her guilt. 1 Hale's P. C. 47. And 
this as well becaufe of the odioufiiefs and dangerous con^ 
fequence.s of the crime itfelf, as beenuft the hufband hav¬ 
ing broken through the moll facred tie of focial commu¬ 
nity, by rebellion again!!: the Hate, has no right to that 
obedience from a wife which he lrimfelf as a fubje&t has 
forgottcivto pay. 4 Comm. 28. 29. If alfo a feme commit 
a theft of her own voluntry act, or by the bare command 
of her hufband, or be guilty of treafon, murder, or rob¬ 
bery, though in company with, or by coercion of, her huf- 
and,. (he is punifliable. 1 Hawk. P. C. 1. The diftinflion 
between her guilt in burglary or theft and robbery, feenis 
to be, that in the former, if committed through the means 
.of her hufband “ Ihe cannot know what property her huf¬ 
band may claim in the goods taken. ” \oMvd, 63. Butin 
robbery the wife has an opportunity of judging in what 
fort of right the goods are taken. Leach's Hawk. P.C. i. c. 1. 
If the wife receive ftolen goods of her own feparate a< 51 , 
without the privity ot her hufband, or if he, knowing there¬ 
of, leave the houfe and forfake her company, (lie alone 
fhall be guilty as acceffary. 22.AJf.yo. Dalt. 1 57. 1 Hale 
P. C. 516. In inferior mi (demeanors alfo, another excep¬ 
tion maybe remarked; that a wife may be indicted and 
fet in the pillory with her hufband, for keeping a brothel; 
for this is an offence touching the domeftic economy or .go¬ 
vernment of the houfe, in which the wife has a principal 
fhare; and is alfo fitch an offence as the law prefumes to 
be generally conduced by the intrigues of the female fex. 
1 Hawk. P. C. c. t. 1.0 Mod. 63. 
A ferric covert generally fliall anfwer, as much as if (lie 
were foie, for any offence not capital i^ainft the common 
law or ftatute ; and if it be of fucli nature, that.it may be 
committed by her alone, without the concurrence of her 
hufband, (lie may be puniflted for it without the hufband 
by way of indidf’ment, which being a proceeding grounded 
merely on the breach of the law, the hufband (hall not be 
included in it for any offence to which he is no way privy. 
1 Hawk P. C. c. 1. Mcor'iiT,. Hah. 93. Noy 103. Savil 25, 
Cro. Jac. 482. A feme may be indicted alone for a riot, 
i'o r felling gin againft the flat, 9 Geo. II. c, 23. For re- 
cufancy. For being a common fcold, For afTauIt and 
battery. For foreftalling. For ufury. For barratry. 
For a forcible entry. For keeping a gaming-houfe. Keep¬ 
ing a bawdy-houfe, if the hufband does not live with her. 
For trefpafs or (lander. Keilw. 61. Ro. Ah. 251. Leon. 122, 
Cro. Car. 376. 1 Hawk. P. C. c. 1. 
A man inuft anfwer for the trefpaffes of his wife : if a! 
feme covert (lander any perfon, &c. the hufband and wife 
muff be fued for it, and execution is to be awarded againft 
hint. 11 Rep. 62. Hufband and wife may be found guilty 
of nufance, battery, 6 c c. 10 Mod 63. If the wife incur 
the forfeiture of a penal (latute, the hufband may be made 
a party to an action or information for the fame; as he 
may be generally to any fuit for a caufe of action given by 
his wife, and fiiall be liable to anfwer what (hall be reco¬ 
vered thereon, r Hawk. P. C. c. r. 
VIII. Acts which bind the Wire, after the Hus¬ 
band’s Death. A wife is Jub potejlate viri, and therefore 
her aCts (hall not bind her, unlefs (lie levy a fine, &c. 
when fhe is examined in private, whether fhe doth it freely, 
or by compulfion of the hufband; if baron and feme levy 
a fine, this will bar the feme : and where the feme is ex¬ 
amined by writ, flie fliall be bound; elfe not. 1 Danv. 
Abr. 708. If a common recovery be differed by hufband 
and wife of the wife’s lands, this is a bar to the wife ; for 
file ought to be examined upon the recovery. PI. Com. 514a. 
1 Rot. 347. So, if hufband and wife are vouchees in a com¬ 
mon recovery, the recovery fliall be a bar, though the 
wife be not examined ; for, though it be proper that fine 
be examined, yet that is not neceffary, and is frequently 
omitted. 1 Sid. 11. Sti. 319. A recovery, as well as a 
fine by a feme covert, is good to bar her, becaufe the prae¬ 
cipe in the recovery anfwers the writ of covenant in the 
fine, to bring her into court, where the examination of 
the judges deftroys the prefumption of the law, that this 
is done by the coercion of the hufband, for then it is to 
be prefoftled they would have refufed her. 10 Co. 43. j 
Rol. Abr. 393. 
By the cuftom in fome cities and boroughs, a bargain 
and fale by the hufband and wife, where the wife is ex- 
'amined-by the mayor or other officer, binds the wife after 
the hufband’s death. 2 Infl. 673. And it feenis that by 
fiat. 34 Hen. VIII.'C. 22. all fucli cuflomary conveyances 
fliall be of force notwithftanding the (fat. 32 Hen. VIII. 
c. 2S. So, by cuftoin in Denbigh in Wales, a furrender by 
hufband and wife, where the wife is examined in court 
there, binds the wife and her heirs as a fine does; and 
this cuftoin is not taken away by fiat. 27 Hen. VIII. c. 26; 
for it is reafonabie and agreeable to fome cuftoms in Eng¬ 
land. Dy . 363. So a furrender of a copyhold by hulband 
and wife, the wife being examined by the fteward, binds 
the wife. 
A wife is difabled to make contracts, See. 3 Injl. no. 
And if a married woman enters into bond as feme foie, if 
(lie is fued as feme foie, Hie may plead non ejl faTlum, and 
the coverture will avoid her bond. i Lil. Abr. 217. A 
feme covert may plead non a/jumpjit, and give coverture in 
evidence, which makes it no promile, &c. Raym. 395. In 
cafe money be due to the hulband by bill or bond, or for 
rent on a leafe, and it is paid to the wife ; this (hall not 
prejudice him, if after payment he publickly difagrees to 
it. 19 Jac. 1 B.R. 2 Shep. Abr. 426. Contra, if (lie is ufed 
to receive money for him, or if it can be proved the mo¬ 
ney paid came to.his ufe. 
If a feme covert levies a fine of her own inheritance 
without her hulband, this (hall bind her and her heirs, be¬ 
caufe they are eftopped to claim any thing in the land, and 
cannot be admitted to fay (he was covert againft the record ; 
but the hulband may enter and defeat it, either during the 
coverture, to reftore him to the freehold he held jure ux- 
oiis, or after her dentil to reftore himfelf to his tenancy by 
the curtefy, becaufe no act of a feme covert can transfer 
that intereft which the intermarriage has veiled in the huf¬ 
band ; and, if the hufband avoids it during the coverture, 
the wife or her heirs fliall never after be bound by it. fo 
