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not be sued alone. There was no instance in the books, said the court, of an action being sustained against the wife, when the husband was living at home, and under no civil disability. A wife may acquire a separate character by the civil death of her husband, but she cannot acquire it by a voluntary separation.

But a few years afterwards, the Court of K. B., under the influence of Lord Mansfield, in the celebrated case of Corbett v. Poelnitz,a introduced a new principle into the English law, respecting the relation of husband and wife; but a principle that was familiar to the Roman law, and to the municipal law of most of the nations of Europe. The court, in that case, held, that a feme covert living apart from her husband, by a deed of separation, mutually executed, and baving a large and competent maintenance settled upon her, beyond the control of her husband, might contract, and sue, and be sued, as a feme sole. Lord Mansfield put the action, upon the ground of the wife having an estate settled upon her to her separate use, and acquiring credit, and assuming the character and competency of a feme sole. The ancient law had no idea of a separate maintenance; and when that was introduced, the change of customs and manners required, as indispen sable to justice, the extension of the exceptions to the old rule of law, which disabled a married woman from contracting. The reason of the rule ceased when the wife was allowed to possess separate property, and was disabled from charging her husband.

This decision of the K. B. was in 1785, and it gave rise to great scrutiny and criticism. It was considered as a deep and dangerous innovation upon the ancient law.

In Compton v. Collinson, Lord Loughborough held, notwithstanding that decision, that it was an unsettled point, whether an action could be maintained against a married woman, separated from her husband by consent, and enjoying a separate maintenance. Again, in Ellah V. Leigh,c c the K. B. in 1794, indirectly assailed the de

b 1 H. Blacks. 350.

a 1 Term Rep, 54

c 5 Term Rep. 679.

a

cision in Corbett v. Poelnitz, and did not agree that the court could change the law, so as to adapt it to the fashion of the times. They declared, however, without touching the authority of the decision, that upon a voluntary separation of husband and wife, without a permanent fund for her separate use, she could not be sued alone as a feme sole. Afterwards, in Clayton v. Adams, the Court of K. B. went a step further towards overturning the authority of Corbett v. Poelnitz, and held, that though the wife lived apart from her husband, and carried on a separate trade, she was not suable; for if she could be sued as a feme sole, she might be taken in execution, which would operate as a divorce between husband and wife. At last, in Marshall v. Rutton, the K. B dooided, in 1800, after a very solemn argument, before all the judges, that a feme covert could not contract, and be sued, as a feme sole, even though she be living apart from her husband, and have a separate maintenance secured to her by deed. The court said, that the husband and wife being but one person in law, were unable to contract with each other, and that such a contract, with the consequences attached to it, of giving the wife a capacity to contract, and to sue and be sued, would contravene the general policy of the law, in settling the relations of domestic life, and would introduce all the confusion and inconvenience, which must necessarily result from so anomalous and mixed a character, as such a married woman would be. The only way in which such a separation can be safe and effectual, is, by having recourse to trustees, in whom the property of which it is intended the wife shall have the disposition may vest, uncontrolled by the rights of the husband, and it would fall within the province of a court of equity to recognise and enforce such a trust. At law, a womancannot be sued as a feme sole, while the relation of marriage subsists, and she and her husband are living under the same government.

a 6 Term Rep. 604.

b 8 Term Rep. 545.

Lord Eldon, afterwards, in the case of Lord St. John v. Lady St. John," speaking of these decisions at law, expressed himself very decidedly against the policy and the power of a feme covert becoming a feme sole by a deed of separation. She was incompetent to contract with the husband; and if separated, she could not be a witness against her husband; she could not commit felony in his presence; she must follow the settlement of her husband; her husband would be suable for her trespass. In short, the old rule is deemed to be completely re-established, that an action at law cannot be maintained against a married woman, unles her husband has abjured the realm.

But if the husband and wife part by consent, and he secures to her a separate maintenance, suitable to his condition and circumstances in life, and pays it according to agreement, he is not answerable even for necessaries, and the general reputation of the separation will, in that case, be sufficient. This was so ruled by Holt, Ch. J., in Todd v. Stokes, and this general doctrine was conceded in the modern case of Nurse v. Craig,d in which it was held, that if the husband fails to pay the allowance, according to stipulation in the deed of separation, the person who supplies the wife with necessaries can sue the husband upon an indebitatus assumpsit. This rule, in all its parts, was adopted by our Supreme Court in Baker v. Barney. But our courts have not gone further, and have never adopted the rule in Corbett v. Poelnitz ;f and I apprehend, that the general rule of the common law, as understood before and since that case, is to be considered the law in this country;

a 11 Vesey, 529, 530.

b See the observations of the Master of the Rolls, in 3 Vesey, 443, 444,

445.

c 1 Salk. 116.

d 5 Bos. & Pul. 148,

e 3 Johns. Rep. 72.

f See 2 Halstel, 150. where that case was expressly condemned.

though, perhaps, not exactly under the same straitened limitation mentioned in the books.a I should apprehend, that the wife could sue, and be sued, without her husband, when the separation between the husband and wife was the act of the law, and that takes place not only in the case of a divorce a mensa et thoro, but also in the case of imprisonment of the husband as a punishment for crimes. Such a separation may, in this respect, be equivalent to transportation for a limited time; and the sentence which suspended the marital power, suspends the disability of the wife to act for herself, because she cannot have the authority of her husband, and is necessarily deprived of his protection,

IV. The competency of the wife to deal with her property as a feme sole.

At common law, a married woman was not allowed to possess personal property independent of her husband. But, in equity, she is allowed, through the medium of a trustee, to enjoy property as freely as a feme sole. It is not necessary that the trustee should be a stranger. The husband himself may be the trustee; and if property be settled to a married woman's separate use, and no trustee be appointed, the husband will be considered as such, notwithstanding he was not a party to the instrument under which the wife claims, Where the husband stipulates, before marriage, either that his wife shall enjoy her own property, or that she shall be entitled to a certain benefit out of his estate, he will be bound in equity to perform his agreement, even though it was entered into with the wife herself, and became extinguished at law by his subsequent marriage.

a In some of the states, as Pennsylvania and South Carolina, a wife may act as a feme sole trader, and become liable as such, in imitation of the custom of London. Burke v. Winkle, 2 Serg. & Rawl. 180. Newbiggin v. Pillans, 2 Bay, 162.

6 Bennet v. Davis, 2 P. Wms. 316.

Gifts from the husband to the wife may be supported, as her separate property, if they be not prejudicial to creditors, even without the intervention of trustees."

The wife being enabled in equity to act upon property in the hands of her trustees, she is treated in that court as having interests and obligations distinct from those of her husband. She may institute a suit, by her next friend, against him, and she may obtain an order to defend separately suits against her; and when compelled to sue her husband in equity, the court may order him to make her a reasonable allowance in money to carry on the suit.

The general grounds upon which equity allows a wife to institute a suit against her husband, are when any thing is given to her separate use, or her husband refuses to perform marriage articles, or articles for a separate maintenance; or where the wife, being deserted by her husband, hath accquired by her labour a separate property of which hehath plundered her. Though a woman may be proceeded against in equity without her husband, and though her separate estate be liable for her debts dum sola, yet the court cannot make a personal decree against her for the payment of a debt. All it can do is to call forth her separate personal property in the hands of trustees, and to direct the application of it. When the wife has separate property, the relief afforded is by following it in the hands of trustees; and, in this way, courts of equity can attain a pure and perfect justice, which courts of law are unable to reach.

If, by marriage settlement, the real and personal estate of the wife be secured to her separate use, the husband is accountable for that part of it which comes to his hands; and

a Rich v. Cockell, 9 Vesey, 369. b Cecil v. Juxon, 1 Alk. 278.

c Hulme v. Tenant, 1 Bro. 16. Lillia v. Airey, 1 Vesey, jun. 277. VOL. II.

Norton v. Turvill, 2 P. Wms. 144. Lord Loughborough, 2 Ves. jun. 145, 18

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