WIFE'S CHOSES IN ACTION. of her right to a settle ment. husband has been restrained from recovering at law the legal property of his wife, later opinions seem to have established, that a Court of Equity has no What a bar jurisdiction to prevent him exerting his legal rights to and for the recovery of his wife's property, whether by receipt of it, or by action at law (a): and with respect to the case referred to (b), the reporter remarks, that the decision went a great length; and according to his conception, beyond what had been done in Chancery, the obligee being the defendant. The principle seems to be, that there can be no jurisdiction in the Court to interfere, where the demand is legal, and the person intitled proceeds according to law for the recovery of it. Adultery. 5. If the wife be an adulteress, living apart from her husband, a Court of Equity will not interfere upon her application for a settlement out of her own choses in action; neither will it order them to be paid to her husband: not to the former, because she is unworthy of the Court's notice or interference; nor to the latter, because he does not maintain her, in respect of which duty the law only gives to him her fortune. Accordingly, in Carr v. Eastabrooke (c), cross petitions were presented by the husband and wife; the one praying, that £350 belonging to her, might be settled to her separate use; the other, that the money might be paid to the husband, without his making any provision for her. The wife had eloped, and (a) 1 Ves. sen. 539. 2 Atk. 420. 2 P. Will. 641. 10 Ves. 90. (b) Winch v. Page, Bunb. 86. (c) 4 Ves. 146. See also Ball v. Montgomery, 2 Ves. jun. 191, and Watkyns v. Watkyns, 2 Atk. 97. CHOSES IN ACTION. had lived in adultery, and her husband had obtained WIFE'S a divorce, à menså et thoro; but at this time the adulterer was dead, and the wife was supported by his mother. The Chancellor said, he could make no order upon either petition, that he could not settle the sum to the wife's separate use, and that he must make a settleleave it as it was. But the rule is different in instances of female wards of the Court who are married without its consent; for although they afterwards live in adultery, the Court will inforce a settlement (a), as also the provisions to be contained in it; because the marriage being a contempt, the Court obtained jurisdiction to commit the husband, in consequence of such misconduct, until he should make a proper settlement; and the Court will not part with that power until that act be done, whatever may be the irregularity of the wife's conduct, which may be attributed in some degree to her husband's misconduct in procuring such a clandestine marriage. It sometimes occurs that a husband refuses to make any settlement upon his wife, in obedience to the directions of the Court; we shall therefore ceed to consider, pro II. The rights of husband and wife in her choses in action, when he refuses to make any settlement upon her, or when he deserts her, or compels her to quit his house. 1. When he declines to make any settlement upon her. Since the husband is obliged to maintain his wife, he will be intitled to receive the annual produce of (a) Ball v. Coutts, 1 Ves. and Bea. 302, 304. husband and Rights of wife when he refuses to ment. But it is no bar in the in stance of a female ward of the Court. Husband intitled to the interest of his wife's fortune, al VOL. I. T WIFE'S CHOSES IN ACTION. Rights of husband and ment. fuse to make her property, although he decline to make a settlement upon her. Accordingly, in Sleechv. Thorington (a), the Master of the Rolls observed, that the Court had not thought wife when he itself empowered to take from the husband his wife's refuses to make a settle- fortune, so long as he was willing to live with and maintain her; and that where a husband would though here- not go in before the Master, even in that case the a settlement. Court would not proceed so far as to do any thing in diminution of his right, so as to take away the produce from him, or to prevent his receiving the interest; but that the Court constantly, where the husband maintained his wife, accompanies the direction for a suspension with payment of the interest to the husband. Not the capital. Instance where he will be deprived of the interest. Husband's assignees take the yearly interest, subject to an allow ance to his wife. The Court, however, will preserve the capital for the wife, until a proper settlement be made upon her and her children, as it has been shown in the first section. And if the husband misconduct himself, as in the instance of receiving a considerable part of his wife's portion, so as to leave but a small part remaining, and then refuse to make an adequate settlement upon her, there, as Lord Hardwicke said, the Court would not merely stop the payment of the residue of her fortune, but prevent the husband from receiving the interest of that residue, in order that it might accumulate for his wife's benefit (b). The husband, then, being intitled to the whole annual income of his wife's property, as a compensation for maintaining her, his assignees in bankruptcy, or under the insolvent debtors' acts, or trustees under his own assignment to pay his debts, will, as (a) 2 Ves. Sen, 561. (b) 3 Atk. 21. CHOSES IN ACTION. representing him, be intitled to receive such income; WIFE'S quence, Her equity to maintenance out of her property, upon desertion or cruel treatment by husband. nance out of 2. That if he desert and leave her destitute, or Wife's equity compel her to leave him from cruel treatment or to a maintegross misbehaviour, his interest in her personal pro- her property, perty will be suspended. In such cases the Court &c. will prevent his receiving not only any part of the capital of her equitable property, but also the interest of it; for the reason of the law giving to the husband the wife's personal estate, being the consideration of their living together, and his maintaining their children, when, from his misconduct, these ends are defeated, a Court of Equity interferes, and preserves such of the wife's property as is within its jurisdiction, for her and her family, providing for them a maintenance out of it. In acting thus, Courts of Equity do not infringe upon the jurisdiction of the Ecclesiastical Courts, to which belongs the right of decreeing alimony, as consequential to a sentence of a divorce, à mensâ et thoro; but they exercise their authority over the equitable property of the wife, in such a manner as to do that justice to her and her family, which her husband, in breach of his duty, refuses to perform. Accordingly, in Oxendenv. Oxenden (b), by articles (a) 2 Ves. Jun. 607–680. 4 Bro. C. C. 139. 3 Ves. 166. 5 Ves. 517. 11 Ves. 20-21. (b) 2 Vern. 493. Pre. Ch. 239. S. C. WIFE'S CHOSES IN maintenance out of her property, upon deser tion or cruel treatment by husband. on the marriage of A, with B, her husband, £6000, part of her fortune, were agreed to be laid out in lands, and settled upon B for life, then on A for life, Her equity to &c. The money was left in the Bank till the purchase could be made, subject to the trusts. A being obliged to leave B, in consequence of his cruel and unhandsome treatment, filed her bill for a performance of the marriage contract, and to have an allowance for maintenance; and a cross bill was filed by B, to have the money placed at interest until a purchase could be made. The ill treatment of the wife having been fully proved, the Court decreed the £6000 to be laid out, with her consent, in a purchase, and settled pursuant to the articles, and the interest in the mean time to be paid to her, so long as she lived separate. In this case it is observable that the Court deprived the husband of the interest of his wife's fortune, although it was directed by the articles to be paid to him for life. In Watkyns v. Watkyns (a), there was strong and substantial evidence of the wife having been cruelly and barbarously used by her husband, who had quitted the kingdom after having possessed himself of the greatest part of her fortune; and Lord Hardwicke, after directing it to be ascertained how much of her property remained in specie, ordered it to be placed out at interest, and such interest to be paid to the wife until her husband returned and maintained her as he ought to do. Again (a) 2 Atk. 96. To the same effect see Williams v. Callow, 2 Vern. 752. Sleech v. Thorington, 2 Ves. Sen. 562. Atherton v. Nowell, 1 Cox's Rep. 229. |