
    Commonwealth vs. William H. Davis.
    Money sent to a married woman, for the support of herself and her children, by her husband, who has been three years absent at sea, is, in contemplation of law, his property, and must be so averred, when, in pleading, an averment of property is necessary.
    This was an indictment for cheating by false pretences, tried before Byington, J., in the municipal court of the- city of Boston; and the defendant, being there convicted, filed his exceptions, upon which the case came into this court.
    The property was alleged, in the indictment, to be of Abigail Clark; and there was evidence that she was a married woman, and her husband alive; that he went to sea about three years prior to February, 1851, and was then on the coast of Africa, and had not returned; that he sent the money to his wife, which the defendant obtained from her, for her support and the support of her family; and that he had been in the habit of sending her money, from time to time, for that purpose, she and her family living in Boston. There was also evidence that the defendant applied to her for a loan of the money, obtained it, and gave her his promissory note, payable to her on demand.
    The judge instructed the jury that, if they found that, at the time of the transaction set forth, the husband had been absent for three years; was not intending to return soon; and had fixed no time for his return, and had left his wife and family in Boston, without other means of support than those supplied by him as before stated, and he sent this money to her to be disposed of as she should choose, without interference or control on his part, and the defendant, in obtaining the money from her, trusted and acted with her as a feme sole, and obtained it of her as her money, and gave her his notes, payable to her, — such facts would be sufficient to sustain the allegation that the money was her property.
    
      F. E. Parker, for the defendant,
    cited 2 Russell on Crimes, 308; Commonwealth v. Manley, 12 Pick. 173; Commonwealth v. Cullins, 1 Mass. 116.
   By the Court.

We see nothing in the circumstances mentioned in the bill of exceptions to take this case out of the common rule, that money held by a married woman, for the support of herself and children, is, in contemplation of law, the property of the husband, and must so be averred, when, in pleading, an averment of property is necessary. Commonwealth v. Manley, 12 Pick. 173.

Exceptions sustained.  