
    Archibald Newbiggin against Pillans and Wife.
    
      Charleston District,
    
    
      1798.
    
    ■Where a/eme covert keeps a shop, and trade6 herself, husband’s'in1' termeddiing, lor a number of years, it ■will constitute her a feme, añd sheibái be liable for her own coi"
    ASSUMPSIT for goods sold and delivered to the wife, a sole dealer,
    In this ease it appeared, that Mrs. Pillans had for 1Tian)' years acted as a sole dealer, with the knowledge and approbation of her husband, who was a schoolmaster ; that r 1 she had been in the uniform practice of keeping a shop, and . , , . , , , , . selling out goods, keeping books, and rendering account? in her own name only ; and short, of carrying on aft «nrctoanffise in her way solely, without ever na-mmg her husband in any of her mercantile transactions. Sq extensive were her concerns, that she had for several years imported goods in her own name, paid duties at the custom-house, and received shipments and consignments, in the way of trade in every respect, as if she had been a feme sole ; and had kept up a sign at her door in her own name, for that purpose. This action, therefore, was for the amount of a shipment of goods, for her account, from Glas~. goiv, in which her husband’s name was mentioned for conformity sake only. The declaration contained three counts, one against Pil'ans and Wife, another against her as a sole trade , and a third against her, for money had and received to the .plaintiff’s use; to which there was a plea of coverture }->ut in, to wit, that she was not liable for any contracts in her own right during such coverture.
    It came out further in evidence, that she had been very successful in trade, and had made a great deal of money ; while, on the other hand, her husband had been barely able to support himself by his school, and had made nothing | so that a verdict against him would have been of no use to her creditors, as he had nothing to pay them with. It was admitted, that the goods in question had come into hef hands, and that she had received the money for them.
    Mr. Marshall, for defendant,
    contended, that this action would not lay against a feme covert by the general law of the land, as she was incapable of making any contract during coverture ; therefore, he said, it was impossible for the plaintiff to recover against her, under the first count in the declaration. He admitted, that under the act of assembly, a husband might by a special deed under his hand and seal, by and with the consent of his wife, constitute her a sole trader; and that her contracts would then bind her, and she might sue and be sued as such, naming her husband for conformity sake : but, he said, Mr Pillans never had executed any such deed to his wife ; therefore, he argued, the plaintiff could not recover under the second count in the decía» ration. And lastly, he urged, that the plaintiff could not recover under the third and last count in the declaration, because the law would presume, that whatever money she received, was to the use of her husband, and not to the use of a third person, with whom she could make no contract.
    Mr. Turnbull, for the plaintiff, in reply,
    gave up the first-count in his declaration, but relied on the others. He contended, that a feme sole dealer might be constituted two ways ; one by deed under the hand and seal of the husband, pursuant to the directions of the act of the legislature, in that case provided ; the other, by custom and usage ; “ as ** where a feme trades by herself in one trade, with which “ her husband doth not intermeddle ; and buys and sells if! “ that trade, there th&feme shall be sued, and the husband U named only for conformity ; and if judgment be given “ against him, execution shall be only against the fcmeJ1 Cro. Car. 69. Shaw. 184. Skin. 67.
    
    That the act of the legislature did not alter or take away the common law, in regard to-this custom and usage ; it only came in aid of the common law, and enabled the husband to do at once, by his own act, what would require years to accomplish by the common law, in order to establish a usage or custom j that commerce was highly fa-voured in law, and whatever tended to give it facility and credit, was well deserving the attention and protection of our courts of justice. In ,he present case, he said, the parties all came under the strict rules of commercial law. Mrs. PiUans and her husband were of different trades; he a Schoolmaster Or public teacher, in which she never interfered ; shea shop-keeper, engaged in buying and silling goods, in which he never intermeddled. That she had carried on the trade in her own name, so long as not only to have got great credit at home in this country, but had extended it with merchants in a foreign country ; who made no' difficulty in shipping and consigning goods to her address ; so that she fully answered die des-ription of a feme sole dealer, according to usage and custom. Admitting, however, he said, that any doubt could arise on the head of this usage or custom under the second count, which he insisted could not be the case ; still, he said, the plaintiff ought to recover on the third and last count in the declaration, because the plaintiff’s goods had gone into her hands, and she had received the money for them ; therefore, ex esono et bono, she ought not to retain the money from him. No part of the money had gone into the hands of the husband ; that was not even pretended.- The gooes had gone into her store, out of which she had retailed goods for many years, and among others the goods which had been shipped her by the plaintiff. He further said, that to suffer her at this day, to screen herself from responsibility, under the plea of coverture, when it was notoriously known that the husband was not worth a shilling, would in fact be enabling her to swindle the plaintiff out of the amount of the goods shipped to her.
   The presiding judge, Bay,

told the jury, that he thought the custom a reasonable one, and ought to be supported in this city, as well as in the city of London; it was allowed there, in favour of commerce, and for the better support of families, and he saw no good reason why it should not be extended to this country, for the same strong and cogent reasons. Our laws certainly legalized this kind of trade, by feme sole dealers, and an act of the legislature h ad passed, for the better and more speedily enabling them to carry on this commerce, and they were highly protected in those rights ; but this act did not appear to him to have altered the common law, with respect to usage or custom in particular cities and places where it had been established j it only enabled a man to do at once, in one case, that which, it would require years to establish in the other case.

If, however, he said, the jury should have any doubts about the reasonableness and propriety of this custom, which had been urged in support of the second count in the declaration, there could be none under the third and last count for money had and received ; as the goods had been sold by her in the course of trade, and the money had come into her hands, she ought not in justice and good con* science, to retain it from the plaintiff.

The jury, without retiring, found a verdict against the defendants, for the amount of the plaintiff’s demand. A motion was made for a new trial, on the ground of misdirection, andas a verdict against law ; when, after argument, it was overruled, and t the rule discharged, cn the ground that the action was clearly maintainable on the two last counts in the declaration.

Present, Buree, Grihke and Bay.  