While the wife is thus considered for some purposes as the same person with her husband, she is in other points of view a distinct but subordinate person (h), being under his cover, protection, and influence, and [therefore called in our law-French, a feme covert, (fœmina viro cooperta).] For the same reason, [her condition during her marriage is called her coverture (i).] The effect of the coverture may be considered in respect, 1, of her person; 2, of her property; 3, of her contracts and other transactions. 1. As to her person. The custody of this belongs of right to her husband (k), and by some antient authorities it was considered so far under his power, that he might give her moderate correction. But they also held, that this right [was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causâ regiminis et castigationis uxoris suæ, licite et rationabiliter pertinet (1). The civil law gave the husband the same or a larger authority over his wife allowing him for some misdemeanors, flagellis et fustibus acriter verberare uxorem; for others, only modicam castigationem adhibere (m). But with us, in the politer reign of Charles the second, this power of correction began to be doubted (n); and a wife may now have security of the peace against her husband (0), or, in return, a husband against his wife (p). Yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain his wife of her liberty, in case of any gross misbehaviour (q).]

2. As to property. All freeholds of which the wife is

seised at the time of the marriage, or afterwards, are by law vested in the husband and wife, during the coverture, in right of the wife (r). During their joint lives the husband is entitled to the profits, and has the sole control and management; but cannot convey or charge the lands for any longer period than while his own interest continues, except in the way of such lease for a term not exceeding twenty-one years, as is authorized by the recent statute of 19 & 20 Vict. c. 120 (s). Where, however, she has been seised during the marriage in actual possession of an estate of inheritance, whether in fee simple or fee tail, and there has been a child of the marriage born alive and capable of inheriting the property, the husband, upon the wife's decease, becomes solely seised of such estate for his life, and is said in that case (as we have seen) to be tenant by the curtesy of England (t). But subject to these limited rights. of the husband, the freeholds of the wife are not affected by the marriage. Originally, indeed, there was no mode by which the real estate of married women could, even with the husband's concurrence, be conveyed by them during their coverture, for the rigour of the antient law declared the wife incapable, in any case, of binding herself or her heirs in any direct mode of alienation (u). Indirect modes were, however, introduced in a very distant age; and till lately, the ordinary mode was by the fictitious proceeding called levying a fine, in the course of which she was privately examined, whether her act was voluntary (x). But by statute 3 & 4 Will. IV. c. 74, this form of conveyance was abolished; and by its provisions (which we have elsewhere examined more at large (y)), a married woman is now at

liberty, with concurrence of her husband, to make disposition of her real estate by simple deed duly acknowledged under that Act (z).

As to terms of years, of which the woman is possessed at the time of the marriage, or which accrue to her during coverture, the husband becomes by the marriage possessed of them in her right (a). And he is entitled not only to the profits and the management during their joint lives, but he also may dispose of them as he pleases, by any act during the coverture; and they are liable to be taken in execution for his debts; and if he survive her, they are absolutely his (b); but he cannot devise them by will (c). And if he make no disposition of them in his lifetime, and she survive him, they remain to her at his death, by virtue of her original title, and shall not go to his executors (d). It is also to be observed, that these rights of the husband do not extend to property held by the wife in autre droit (as in the capacity of executrix), but only to property of which she is possessed in her own right (e).

With respect to the personal chattels of the wife, belonging to her at the time of the marriage, or accruing to her during coverture, they become in general the absolute property of the husband (f). But this does not apply to property to which she is entitled in autre droit (g). And with respect to choses in action,-such as debts due to the wife on bond or otherwise, before her marriage,—they are so far an exception, that they do not in general become the

(z) 3 & 4 Will. 4, c. 74, ss. 77-80. As to the disclaimer of an estate by a married woman, vide sup. vol. 1. p. 476.

(a) Co. Litt. 46 b; 351 a; 300 a; Rast. 655 a; vide Wallis v. Harrison, 5 Mee. & W. 142.

(b) Com. Dig. Bar. & Feme, E. 2; 2 Bl. Com. 434.

& Feme, E. 2; 2 Bl. Com. ubi sup.
(d) 2 Bl. Com. ubi sup.
(e) Ibid.; 1 Roll. Ab. 88.

(f) Co. Litt. 351 b; 2 Bl. Com. 334; Ayling v. Whicher, 1 Nev. & Per. 416; Carne v. Price, 7 Mee. & W. 183.

(c) Plowd. 418; Com. Dig. Bar.

(g) Co. Litt. 351 b; vide Off. Ex. 7.

husband's until he recovers them by law, or reduces them into possession (i). And if he die before this is done, they remain to the wife. So if she die before he has recovered or reduced them into possession, they are part of her estate. But he is entitled to obtain administration of her effects; and, in capacity of her administrator, he becomes the owner.

As to her future or reversionary interests whether vested or contingent, in personal estate, they are now provided for by 20 & 21 Vict. c. 57; which empowers her to dispose of any such as she may be entitled to, under any instrument made after 31st December, 1857, with the exception only of such as she may derive under her marriage settlement. But to make the disposition valid, her husband must concur in the deed by which it is effected, and it must be duly acknowledged in the manner required by 3 & 4 Will. IV. c. 74, in the case of her conveyance of real estate.

There are also other exceptions to his right to her personal property. For first, her paraphernalia, viz. her bed, apparel and personal ornaments suited to her degree, if not disposed of in his lifetime, remain to her, if she survives him, instead of passing to his representatives; and again, by the recent Act of 20 & 21 Vict. c. 85, s. 21, it is provided, that if he deserts her without reasonable cause, she may obtain an order under which any money or property acquired by her lawful industry, or acquired after his desertion, will be protected, and belong to her as if she were a feme sole.

For the property, also, of which the law divests the wife, in favour of the husband, it affords her some compensatory advantages. For, first, unless some act has been done to defeat or abridge her right, she is entitled, in the event of her surviving him, to dower; that is, to the third part of all the lands and tenements of which the husband was seised, in fee simple or fee tail, at any time

(i) Co. Litt. ubi sup. ; 2 Bl. Com. 434. See Gaters v. Madeley, 6 Mee. & W. 423; Sherrington v. Yates, 12 Mee. & W. 855; Hart v. Stephens,

6 Q. B. 937; Scarpellini v. Acheson, 7 Q. B. 875; Fitzgerald v. Fitzgerald, 8 C. B. 592.

And

during the coverture, and of which any issue that she might have had could by possibility have been heir, to hold to herself for the term of her natural life (k). besides this provision after his death, the husband is liable during his life to maintain her, that is, provide her with necessaries (1); and if he fail to do so, she has power to provide herself, at his expense, in the manner to be presently stated (m).

3. As to her transactions, it may in the first place be remarked, that a married woman may in all cases act independently of her husband in autre droit, as where she is executrix, or exercises any mere authority or power with which she is invested on behalf of a third person (n). But in respect of other transactions, her coverture subjects her to a variety of disabilities. She is incompetent, except under special circumstances, to make a will, either of lands or chattels (o). She is incapable generally of contracting, or of doing any other act to bind herself or her husband (p), (unless by his authority, and as his agent (q),) and such acts done by her are merely void (r). She is also incapable of bringing any action at law to obtain redress for an injury sustained in her person or property, unless the action be brought with her husband's concur

(k) Litt. ss. 36, 53; vide sup. vol. 1. p. 267.

(1) Where the husband is a pauper, the wife is entitled to be relieved, as part of his family, under the poor law; and by 7 & 8 Vict. c. 101, s. 25, it is now provided, that when the husband is beyond the seas, or in custody of the law, or in confinement in a licensed house or asylum as a lunatic or idiot, she shall be relieved in the same manner as if she were a widow, with a proviso, however, that this shall not diminish the obligation of the husband in respect of such relief.

(m) See Etherington v. Parrot,

Lord Raym. 1006; Montague v. Benedict, 3 Barn. & Cress. 635.

(n) Com. Dig. Bar. & Feme (P.); Prince v. Brunette, 1 Bing. N. C. 438.

(0) Vide sup. p. 199.
(p) Co. Litt. 112 b.

(q) See M'George v. Egan, 5 Bing. N. C. 196; Offley v. Clay, 2 Man. & Gran. 172; Freestone v. Butcher, 9 Car. & P. 647; Lane v. Ironmonger, 13 Mee. & W. 368; Lindus v. Bradwell, 5 C. B. 583; Brown v. Ackroyd, 5 Ell. & Bl. 819.

(r) 1 Bl. Com. 444; Com. Dig. Bar. & Feme.