Hubert v. Fera , 99 Mass. 198 ( 1868 )

Foster, J.

1. When a suit at law is brought by or against a married woman, for a cause of action to which she is entitled, or for which she is liable, under our statutes it is not necessary to allege in the writ her marriage and that the subject matter of the suit was her sole and separate property or services. It is sufficient if the facts disclosed at the trial establish her right to recover, or her liability on account of her separate property. Van Burén v. Swan, 4 Allen, 380. Robbins v. Potter, 11 Allen, 588; S. C. 98 Mass. 532. Even at common law the rule was the same. “ Where the feme was interested before or during her coverture in the subject matter of the action, and might join xvith the husband, but sues alone, her coverture can only be pleaded in abatement, and cannot be given in evidence under the general issue or pleaded in bar.” 1 Chit. Pl. (11th Am. ed.) 449.

2. The record dismissing the libel a mensd between husband and wife was not conclusive in favor of the husband in the present case. It did not show that he was not liable for the necessaries furnished by the plaintiff to his wife while she was living separate from him. This point was expressly adjudged in Burlen v. Shannon, 3 Gray, 387. For two plain reasons this is so: first, the libel was not a suit between the same parties ; second, a wife may be living separate from her husband under such circumstances that he is liable for her support, although he is not guilty of desertion, cruelty, or anything else for which she coul. obtain a divorce a mensd against him.

Exceptions overruled.