In case of divorce a mensa et thoro, the law allows alimony to the wife: which is that allowance, which is made to a woman for her support out of the husband's estate being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law de estoveriis habendis, in order to recover it. (1) It is generally proportioned to the rank and quality of the parties. But in case [442] of elopement, and living with an adulterer, the law allows her no alimony. (m) 43

III. Having thus shewn how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.

By marriage, the husband and wife are one person in law: (n) that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, foemina viro cooperta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her,(0) for the grant would be to suppose her separate existence and to covenant with her, would be only to convenant with himself:45 and therefore it is also

44

(42) As to the proceeding for this in the spiritual court, see post 3 vol. 94. The jurisdiction of the spiritual court, in decreeing alimony, is incidental to a decree of divorce; and, generally speaking, alimony cannot be otherwise obtained, Dick. 791. unless by act of parliament. Infra note (43). Where the wife has a sufficient independent income, no alimony will be allowed. See 2 Haggard, 1. 199. 203. 205. There are, however, cases in which the court of equity has decreed alimony to the wife; but it should seem it has no power except upon an agreement between the parties. 1 Fonbl. on Equity, 105. 1 Ch. Rep. 24. 87. 99. 118. 1 Ch. Cas. 150. 3 Atk. 548. 2 Vern. 386. 761. 752. 3 Bro. Ch. R. 614. 2 Atk. 96. Lit. Rep. 78 Wood's Inst. 62.

In some cases equity will, by writ of ne exeat regno, restrain the husband from quitting the kingdom to evade the payment of an agreed or decreed allowance, 3 Atk. 295. Dick. 143. But see 1 Ves. 94. 11 Ves. 526. Chitty. (43) It should seem that this rule is not confined to cases where the wife elopes and lives with the adulterer; for alimony is not allowed in any case where the divorce was for adultery on the wife's part. Post 3 vol. 94.

In a court of common law, a plea that the wife was guilty of adultery, is no bar to a claim made by her trustee under a separation deed for arrears of annuity, there being no clause that deed should be void on account of adultery. 2 Bar. & Cres. 347. 4 D. & R. 11. S. C. Chitty.

(44) As to the rights and liabilities of husband and wife inter se, and what property passes by marriage, see post 2 vol. 432.

(45) The husband and wife being one person in law, the former cannot, after marriage, by any conveyance at common law, give an estate to the wife. Co. Lit. 112. a. 187. b. Nor the wife to the husband. Co. Lit. 187. b. But the husband may grant to the wife, by the intervention of trustees, Co. Lit. 30. ; and he may surrender a copyhold to her use. A husband cannot cove. nant or contract with his wife, Co. Lit. 112. a., though he may render his contract binding, if en tered into with trustees; for unless by particular custom, as the custom of York, (Fitz. Prescription, 61. Bro. Custom, 56.) a feme covert is incapable of taking any thing of the gift of her husband, Co. Lit. 3. except by will. Lit. s. 168. 2 Vern. 385. 3 Atk. 72. Fonblauge on Eq. vol. 1. 103.

But in equity, gifts between husband and wife are supported, 1 Atk. 270. 2 Ves. 666. 1 Fonb. on Eq. 103. 3 P. Wms. 334. unless in fraud of creditors, &c. or where the gift is of the whole of the husband's estate. 3 Atk. 72. 2 Ves. 498.

But though in equity the wife may take a separate estate from her husband in respect of a

46

generally true, that all compacts made him between husband and wife when single, are voided by the intermarriage. (p) A woman indeed may be attorney for her husband; (q) for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death. (r) The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them ;(s) but, for any thing besides ne[443] cessaries, he is not chargeable. (t) 48 Also if a wife elopes, and lives

p Cro. Car. 551.

47

gift, and even have a decree against her husband in respect of such estate, 1 Atk. 278., or avail herself of a charge for payment of his debts, Prec. Ch. 26., yet if she do not demand the produce during his life, and he maintains her, an account of such separate estate, shall not be carried back beyond the year. 2 P. Wms. 82. 341. 3 P. Wms. 355. 2 Ves. 7. 190. 716. 16 Ves. 126 11 Ves. 225. 1 Fonbl. on Eq. 104. 1 Atk. 269. 1 Equ. Ca. Ab. 140. pl. 7.

By 27. Hen. VIII, the husband may make an estate to his wife; as if he make a feoffment to the use of his wife for life in tail or in fee, the estate will be executed by the 27 Hen. VIII. and the wife will be seised. Co. Lit. 112. a. So if the husband covenant to stand seised to the use of his wife. Id. a. b. And this where by custom he might devise at common law. Lit. s. 168. So where the husband or wife act en auter droit, the one may make an estate to the other; as if the wife has an authority by will to sell, she may sell to her husband. Co. Lit. Chitty.

112. a.

(46) At law, if a man make a bond or contract to a woman before marriage, and they afterwards intermarry, the bond or contract is discharged. Cro. Car. 551. 1 Lord Ray. 515. So if two men make a bond or contract to a woman, or e contra, and one of them marries with her, the bond, &c. is discharged. Cro. Car. 551.

Though if it be intended for the advantage of the wife during the coverture, as that she shall have such rents, &c. at her disposal. Ca. Ch. 21. 117.

But a covenant or contract by a man with a woman is not destroyed by their marriage where the act to be performed is future, to be done after the marriage is determined, as to leave his wife so much after his death. Hut. 17. Hob. 216. 2 Cro. 571. Cro. Car. 376. 1 Ch. Ca. 21. 1 Salk. 326. Palm 99. Carth. 512. Com. Dig. B. & F. D. 5 T. Rep. 381. So the marriage does not defeat a breach before. Skin. 409. And the courts of equity admit a debt in praesenti, or which might arise during coverture, to be extinguished at law by the marriage, upon the notion that husband and wife are but one person in law, and cannot sue each other; yet as they may sue each other in equity, a bond or other security, though void at law, shall be sustained in equity, at least as evidence of an agreement. 2 P. Wms. 243. 2 Vern. 480, 1. 2 Atk. 97. Prec. Ch. 41. Dick. 140. And an agreement to make a marriage settlement shall be decreed in equity after the marriage, though it was to be made before the marriage. 2 Vent. 343. So an agreement to permit the wife to dispose of so much money during her coverture. Dub. 1 Ver. 409. And if a wife charge her estate with payment of her husband's debts, or apply her separate estate to such purpose, and it does not appear to have been intended by her as a gift to her husband, equity will decree the husband's assets to be applied in exoneration of her estate, or in repayment of the money advanced. 2 Vern. 347. 689. 1 Bro. P. C. 1. 2 Vern604. 1 P. Wms. 264. 2 Atk. 384. 1 Fonbl. on Eq. 102, 3. Chitty. (47) A donatio causa mortis by a husband to his wife, may also be good, as it is in the nature of a legacy. 1P. Wms. 441.

(48) Every agreement of any nature entered into by a married woman, without the express or implied consent of her husband, is absolutely void. 1 Sid. 120. 1 Lev. 4. 1 Mod. 128. S. C. 2 Ak. 458. 2 Wils. 3. 8 T. R. 545. 2 B. & P. 105. Palm. 312. 1 Taunt. 217. except indeed in the instance of the queen consort, Co. Lit. 133, a. or of a deed inrolled or covenant on the warranty of a fine, or on a covenant running with the land of the wife, demised by her during coverture, 2 Saund. 180. n. 9. and contracts binding her by special custom, Hob. 225. 34 & 35 Hen. VIII. c. 88.; and this rule prevails so strongly that a feme may avail herself of her coverture to defeat a contract, though she have been guilty of fraud, 4 Camp. 26. nor can a married woman even state an account of a debt contracted before marriage. 2 Esp. 716. 1 Taunt. 212. If the wife sell, or dispose of the money or goods of the husband without his assent, the sale is void, and the husband may have trover for the goods; and if she lose money at cards, the husband may bring an action for the money, Com. Dig. Bar. & F. As a consequence of the same doctrine, à married woman cannot in general be made a bankrupt. 1 Mont. on B. L. 4. In equity, the same rule as to the husband's liability for the wife's contract applies, Prec. Ch. 255. 2 Vern. 113. Sel. Ca. Ch. 19. 3 Mod. 186.; and a court of equity cannot make the hus band liable in respect of the fortune he may have had with his wife for her debts contracted before marriage, IP Wms. 461. 3 P. Wms. 410. Forrester, 173. but see 2 Freem. 231. Though indeed if he take out administration to her, he will be liable to the extent of what he

with another man, the husband is not chargeable even for necessaries: (u) at least if the person who furnishes them is sufficiently apprized

u Stra. 647.

receives as her assets. Forrester, 172. and see post as to enforcing in equity the wife's con

tracts.

But notwithstanding the wife is thus in general incapable of making a valid contract, so as to bind her husband, yet in some cases he will be rendered liable when his assent to her contract can be presumed, or was expressly given. Thus, during cohabitation the law will, from that circumstance, presume the assent of the husband to all contracts made by the wife for necessaries, which are suitable to the husband's degree and estate, and the misconduct short of the adultery of the wife, will not destroy this presumption. 2 Lord Raym. 1006. 1 Salk. 118. And this liability for necessaries is not confined to cases where they are supplied to, or for the use of, the lawful wife of the party to be charged. A man cohabiting with a woman, and allowing her to assume his name, and appearing to the world as his wife, and in that character to contract debts for necessaries, will be liable, though indeed the tradesman knew the circumstances, 2 Esp. 637. 4 Camp. 215. and though the man be married to another woman, 1 Camp. 245. 249.; but this rule only holds during cohabitation. 4 Camp. 215. Where a man marries a widow, and receives her children into his family, although he was not bound by the act of marriage to maintain the children, 4 T. R. 118. 4 East. 76. yet, having treated them as part of his family, he is liable for contracts made by the wife in his absence for the education of the children. 3 Esp. Rep. 1. If the husband be an infant, yet he is liable for necessaries furnished to his wife and children, their interests being considered as identified with his own. 1 Stra. 168. Bul. N. P. 155. This legal presumption of assent may in particular cases be rebutted; as for instance, ia an action brought for the price of dresses supplied for the wife by her order, evidence may be given that she was not in want of articles of this kind, or that the husband had given notice to the tradesman not to trust her upon credit, 2 Lord Ray. 1006. 1 Salk. 118. So where in an action of assumpsit for goods sold, it appeared that the plaintiff, a jeweller, in the course of two months delivered articles of jewelry to the wife of the defendant, amounting in value to 831., and that the defendant was a certificated special pleader, and lived in a ready furnished house, of which the annual rent was 2001., that he kept no man-servant, that his wife's fortune upon her marriage was less than 40001., that she had at the time of her marriage jewelry suitable to her condition, and that she had never wom in her husband's presence any articles furnished her by the plaintiff, and it appeared also that the plaintiff, when he went to the defendant's house to ask for payrent, always inquired for the wife and not for the defendant, it was held that the goods so furnished were not necessaries, and that as there was no evidence to go to the jury of any assent of the husband to the contract made by his wife, the action could not be maintained. 3 B. & C. 631. And where a husband makes an allowance to the wife for the supply of herself and family with necessaries during his temporary absence, and a tradesman with notice of this supplies her with goods, the husband is not liable. 4 B. & A. 252. Money lent to a married woman cannot be recovered against the husband, 1 Salk. 387. 1 P. Wms. 482. Prec. Ch. 502. even though the money be laid out in the purchase of necessaries; though indeed in a court of equity the lender would, in such case, be entitled to stand in the place of the tradesman by whom the goods were supplied. Id. Where a married woman buys materials for clothing, and pawns them before they are made up, the husband is not liable, for they never came to his use, though it would be other wise if the clothes were made up and used by the wife, although they may be afterwards pawned by her. 1 Salk. 118. Com. Dig. B. & F. Where a party contracts solely with, and gives credit to the wife, he cannot sue the husband, though for necessaries; and this, although the wife lives with him, and he sees her in possession of some of the goods, unless indeed the husband by any act shew that he considered himself the debtor. 5 Taunt. 356. 1 Carr, Rep. 16. 3 Camp 22. 4 Camp. 70. 2 Stra. 706. 4 B. & A. 255.

The husband is liable to pay the wages of a servant hired by the wife, after the servant had performed the service with the knowledge of the husband. 1 Esp. 200. 6 T. R. 176.

Where the husband and wife are separated and live apart from each other, still the husband will be liable upon a contract for necessaries made with her where his assent can be implied Thus, where the husband deserts his wife, or turns her away without any reasonable ground, or refuses to admit her into his house, or compels her by ill usage, indecency of demeanor, or severity, to leave him, in all these cases he gives the wife a general credit, and is liable to be sued for necessaries furnished her. 1 Esp. 441. Lord Raym. 444. 4 Esp. 42. 3 Esp. 251, 2. 2 Stra. 1214. 3 Taunt. 421. 2 Stark. 87. And this although he has given a general notice to all persons, or even a particular one to the individual, supplying her with necessaries, not to give credit to her. 4 Esp. 42. 1 Selw. N. P. 5 ed. 275. And a husband who, without cause, turns away his wife, is liable for costs she incurs in articles of the peace against him. 3 Camp. 326. But the husband would not be liable at law for money lent to his wife, though laid out in the purchase of necessaries; but he would be liable in equity. 1 Salk. 387. 1 P. Wms. 482. Prec. Ch. 502. And a person paying the debts of a wife, contracted while so separated, cannot sue the husband at law. 1 H. Bla. 92. Though when a husband goes abroad and leaves his wife, who dies in his absence, and the wife's father pays the expenses of her funeral in e manner suitable to the husband's rank and fortune, the amount may be recovered back from the husband, though expended without his knowledge or consent. 1 H. Bla 92 44

VOL L

of her elopement. (w) If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her

w 1 Lev. 5. (notice is not essential, see note 48.)

This liability for necessaries does not arise where the wife voluntarily leaves her husband without his consent, and where he gave her no sufficient cause for her leaving, provided the tradesman has notice of her husband's dissent to her absence. 2 Stra. 1214. in notes. 2 Ld. Raym. 1006. 1 Sid. 109. 1 Lev. 4. 2 Stark. 87. Stra. 875. So where the wife has a separate maintenance from the husband suitable to the husband's station, and is actually paid, and the tradesman has notice of this, or the means of knowing it by its being notorious in the neighbourhood, the husband will not be liable even for necessaries furnished to her. 4 Camp. 70.4 B. & A. 254. 2 New. Rep. 144. 3 Taunt. 343. 3 Esp. 250 Salk. 116. Lord Ray. 444. 2 Stark. 88. But a promise by the husband to pay the amount of a debt contracted by the wife, though she was allowed a separate maintenance, and this was known, is binding. 2 Stark. 177.

Where the wife has been guilty of the crime of adultery, either during cohabitation with her husband, or in a state of separation from him, her claims for maintenance and protection are forfeited by her misconduct. Stra. 875. 6 T. R 603. 1 Selw. N. P. 5 ed. 272. And where the wife eloped with an adulterer, it was held that the husband should not be charged for necessaries, although the tradesman who supplied them had no notice of the criminality. Stra. 647. 706. But in these cases, the husband should take due measures to prevent the wife gaining credit in his name; and where the wife having committed adultery, was left by the husband in his house with two children, bearing his name, but without making any provision for her in consequence of the separation, it was held, that although she continued in a state of adultery, the husband was liable for necessaries furnished to her, on the ground that it did not appear that the tradesman knew the facts of the case. 1 Bos. & P. 226. 6 T. R. 603. And if after the wife's criminality, the husband again receives her into his house, his liability for necessaries revives; and if he afterwards expel her from his house, he will be liable, although due caution be given not to trust her. 11 Ves. 536. 4 Esp. 41, 2. 1 Salk. 19. 6 Mod. 172.

Although the wife's capacity to contract is put an end to by the marriage, and her property falls in general under the disposal of her husband, yet it frequently happens that either by a settlement made with trustees, with the consent of the husband before marriage, or where they separate, and a separate maintenance is allowed, or from some other source, the wife is entitled to separate property, over which, in a court of equity, the husband has no control. Her having such separate property does not indeed remove her incapacity to contract, but she has a power of charging or disposing of it, subject of course to the conditions and limitations with which the property was clothed on her becoming entitled; and it has been decided in the court of chancery, that a general personal engagement of the wife, as for instance, a bond given by a feme covert as surety, 15 Ves. 596. or a bond given, or promissory note given as a security for money borrowed by her, 17 Ves. 365. 2 P. Wms. 144. or given jointly with the husband as a security for his debt, 1 Bro. Ch. c. 16. 9 Ves. 188. 486. 2 Ves. Jun. 138. 2 Peere Wms. 144. 2 Atk. 68. 11 Ves. 202. 1 Ves. & Beame, 121, 2, 3. although the instrument is void as a contract both in law and equity, and although it contains no reference to her separate estate, will be regarded as evidence of an intention on her part to charge her own separate property, and will accordingly operate as a lien upon it, in respect of which she is liable to be proceeded against in that court; where her discretion is freely exercised, the contract will be obligatory. 16 Vesey, Junr. 116. 3 Mad. 387. and see 3 Chitty's Com. Law, 39, 40. ; and it may be taken as a general rule, that when it appears, or can be inferred, that the wife intends to charge her separate maintenance with a debt incurred for necessaries, the creditor is entitled to receive his debt out of the fund provided for her separate maintenance, 3 Mad. 337.; and as we have before seen, although at law a wife cannot borrow money to lay out in necessaries, but at the peril of the lender, who must lay it out for her, Salk. 387., yet in equity it is sufficient to charge the husband, if the money be actually applied to the purpose for which it was borrowed, though the lender neglect to see to the application. 1 P. Wms. 483. Prec. Ch. 502.

If a married woman has derived any benefit from the contract she has entered into, there arises a moral obligation on her part to perform it; and if after her coverture has ceased she expressly promise so to do, she will be liable on such promise. And where a feme covert having an estate settled to her separate use, gave a bond for repayment by her executors, of money advanced at her request to her son-in-law on the security of that bond, and after her husband's decease she wrote promising that her executors should settle the bond, it was held that assumpsit was maintainable against her executors on this promise. 5 Taunt. 36 2 Atk. 245. sed vid. 1 Stra. 94. If a woman, after the death of her husband, redeliver a deed delivered by her during coverture, this will be sufficient to render her liable on it Perkins, s. 154. and see Cowp. 201. 2P. Wms. 127. After a divorce a vinculo matrimonii, the parties are competent to contract, and may marry again the same as if they had never been married. Com. Dig. B. & F. c. 1. &c. 7. Moore Rep. 666. 1 Salk. 115. 6. Cro. Eliz. 908. 3 Mod. 71. Cro. Car. 463. 1 Gow. 10. ante 440. n. 37. A wife may acquire a separate character and contract accordingly, by the civil death of her husband by exile, 2 H. 4. 7. a. 1 H. 4. 1. a. and formerly by profession and abjuration of the realm, 1 Inst. 133. a. 130. a. Thus, if the husband be transported or banished for life, the wife may Contract as a feme sole. Co. Lit. 133. a. 2 B. & P. 231. n. a. 3 Camp. 125. And though the

49

circumstances together. (x) " If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name as well as her own :(y) neither can she be sued, without making the husband a defendant. (2) There is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished, (a) for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. 50 In criminal prosecutions, it is true, the wife may be indicted and

z Bro. Error. 173. 1 Leon. 312. 1 Sid. 120. This was also the practice in the courts of Athens. (Pot. Antiq. b. 1. c. 21.) a Co. Litt. 133.

husband be transported for a time only, yet it should seem that during the limited period, the effect of his absence is the same to the wife as if it had been perpetual. 2 Bla. Rep. 1197. 1T. R. 7. 2 B. & P. 231. Co. Lit. 133. a. n. 3. 1 B. & P. 358. and see 4 Esp. 27. Where the husband is an alien who has deserted this kingdom, leaving his wife to act here as a feme sole, the wife may be charged as a feme sole after such desertion, 2 Esp. Rep. 554. 587. 1 B. & P. 357. 2 B. & P. 226. ÎN. R. 80. 11 East, 301.; so where the husband is an alien, and has never been in this country. 3 Camp. 123. Indeed it has been considered that the preceding doctrine is confined to the case where the husband has never been in this country. Id. ibid. sed quære. At all events it is confined to cases only where the husband was an alien, 11 East, 301. IN. R. 80.; and where the husband resided in the West Indies and allowed his wife a weekly sum for her subsistence, it was held that she could not contract as a feme sole. 3 Esp 18. 1 N. R. 80. 5 T. R. 679. 682. And where an Englishman employed in the service of the British government residing in a foreign country, and having lands there, upon the cessation of his employment in cousequence of war between the two countries, sent his wife and family to this country, but continued to reside abroad himself, it was held the wife could not contract as a feme sole. 2 B. & P. 226.

By the custom of London, where a feme covert of a husband useth any craft in such city on her sole account, whereof the husband meddleth nothing, such a woman shall be charged as a feme sole, concerning every thing which toucheth the draft; and if the husband and wife be impleaded in such case, the wife shall plead as a feme sole, and if she be condemned, she shall be committed to prison till she hath made satisfaction, and the husband and his goods shall not in such case be charged or impeached. See 3 Burr. 1776. Cro. Car. 67. 10 Mod. 6. 2 B. & P. 93. 101. 3 Chit. Com. Law, 37. This custom must be construed with strictness. See 1 Roll. Ab. 567. 2 Leon. 109. The trade must be carried on within the city, and on the wife's sole account, and if the husband had any concern in it, the case will not be protected by the custom. See Cro. Car. 68. 3 Burr. 1782. 1785. A feme covert, sole trader, cannot by this custom execute a bond, but only make herself liable to simple contract debts. 4 T. R. 363. A person so trading within the city, is however liable to be made a bankrupt, though a married woman. 1 Ak. 206. 3 Burr. 1783. 1 Mont. B. L. 4.

(49) But though the husband has had a great fortune with his wife, if she dies before him, he is not liable to pay her debts contracted before marriage, either at law or in equity, unless there be some part of her personal property which he did not reduce into his possession before her death, which he must afterwards recover as her administrator; and to the extent of the value of that property, he will be liable to pay his wife's debts, dum sola, which remained undischarged during the coverture. 1P. Wms. 468. 3 P. Wins. 409. Rep. T. Talb. 172

(50) This leads us to inquire in what manner actions should be brought by and against husband and wife; and herein,

I. OF ACTIONS BY HUSBAND AND WIFE.

1. Where they must join.

2. Where husband must sue alone.

3. Where wife may sue alone.

4. Where they may join or not, at their election.

5. Who to sue in case of death of husband or wife.

IE. OF ACTIONS AGAINST HUSBAND AND WIFE.

1. Where they must be joined.

2. Where the husband must be sued alone.

3. Where the wife may be sued alone.

4. Where they may be joined or not at the election of plaintiff in action.

5. Who to be sued in the case of death of husband or wife.

1. Where they must join.-As choses in action of the wife do not vest by marriage absolutely in the husband until he reduce them into possession, in general he cannot sue alone, but must join with his wife in all actions upon bonds and other personal contracts made with the wife before the marriage, whether the breach were before or during coverture, and also for rent, or any other cause of action, accruing before marriage, in respect of the real estate of the wife; and it