
    Branch v. Bowman.
    May, 1830.
    Debt — Plea of Feme Covert — Replication of Abjuration of Realm. — To debt ou bond. defendant pleaded, that she was feme covert at time the bond was executed: plaintiff replied, that defendant’s husband had abjured the commonwealth, and was not then or now a citizen thereof: on general demurrer to this replication, it was held naught.
    Debt on bond, by Taylor Bowman against Elizabeth Branch, in the county court of Prince Edward. The defendant pleaded in bar, that she was, at the time of executing the bond, and yet remained, a feme covert, the wife of Matthew Branch. The plaintiff replied, that at the time of executing the bond, the said Matthew, of whom the said Elizabeth was alleged to be the wife, •and abjured the commonwealth of Virginia, and that he was not then or now a citizen thereof. General demurrer to the replication, and joinder in demurrer. The county court held that the law was for the plaintiff, and gaye him judgment for the debt *and costs. The defendant appealed to the circuit court, which affirmed the judgment: and then, she applied to this court for a supersedeas, which was allowed.
    Beigh, for the plaintiff in error.
    Anciently, b3the common law, if a husband abjured the realm or was banished forever, he was considered as civiliter mortuus, and his wife was regarded as a feme sole. Co. Ivitt. 133, a. But this abjuration of the realm, was an incident to the right of sanctuary, which was abolished in England, by the statute 21 Jac. I. ch. 28, and certainly never at any time existed in Virginia, 1 Vin. Abr. Abjuring the Realm, p. 108; 4 Black. Comm. 332; 2 Hawk. P. C. ch. 9, | 44. In Virginia, abjuration of the commonwealth cannot be, and therefore •cannot be pleaded. The modern cases founded on analogy to the old doctrine of •abjuration by the husband, apply only where the husband who departs from the •country leaving his wife behind, is an alien, and therefore is not presumed to have the intention of returning. De Gaillon v. E’Aigle, 1 Bos. & Pull. 8, 3S7; Marsh v. Hutchinson, 2 Id. 226; Earrer v. Countess Granard, 4 Id. 80; Walford v. Duchess de Pienne, 2 Esp. Rep. SS4.
    Spooner, contra,
    endeavoured to maintain, that the replication, justly understood, asserted, in avoidance of the plea, that the defendant’s husband had relinquished the character of a citizen of Virginia, and departed from the state, and thereby expatriated himself, and ceased to be a citizen, in the manner prescribed by the statute, 1 Rev. Code, ch. 23, $ S, p. 66. Such an expatriation was, he thought, a most solemn abjuration of the commonwealth; and if the husband had made himself an alien by his own solemn renunciation of citizenship, and abandonment of the state, his wife remaining here, ought to be treated as a feme sole.
    Eeigh replied,
    that the replication could hardly be tortured into such a meaning: and if it could, it only amounted to an assertion, that the husband had made bim-self an alien: *it did not go the length of asserting, that he was not a resident of the state. The wife of an alien, resident with her husband in Virginia, could not contract debts, and be sued for them, as a feme sole.
   GREEN, J.,

delivered the resolution of the court. The replicatiofi, however understood, is wholly defective. If it intended to rely upon the common law abjuration of the realm; that never existed here, or, if It did, it could only be proved by a record taken by a coroner, and by him certified to the proper court; and the plea should have been verified by the record, instead of concluding to the country. If it intended to rely upon the expatriation of the husband under our statute, it should have been shewn how he expatriated himself, by a recorded declaration by deed, or in open court, and that he had departed from the commonwealth : and even that would not have been sufficient, without the further allegation, that he resided abroad at the time of the execution of the bond by his wife. Both judgments should be reversed ; the demurrer to the replication sustained, and final judgment given for the appellant.  