applied to property or interests of a married woman, while the latter may be applied either to certain equitable rights or interests of a feme-covert, or others.

A separate use in the wife can be created only by an instrument. expressly showing the donor's intention to bar the husband's marital rights. (Frith v. Caldwell, 31 Penn. R. 228.) And a separate use for a married woman expires upon her discoverture, and she is then entitled to receive the corpus of the estate (Harris' Estate, 3 Phila. R. 326. Harrison v. Brolasky, 1 Am. Law Reg. 439.)

A post-nuptial settlement and conveyance in trust to receive the rents and profits of the land and pay them over to a married woman, to her separate use, is a valid express trust, and the wife cannot in any manner assign or dispose of her interest, nor charge or contingently dispose of the rents and profits. (Noyes v. Blakeman, 3 Sand. R. 531. S. C. 6 N. Y. R. 567.)

No technical form of words is necessary to create a trust for the separate use of a marrried woman. If the property be vested in a trustee, and the trust declared to be for her sole use and benefit and the money to be paid to her individually, it is equivalent to providing for payment to the wife upon her separate receipt, and to exclude the husband. (Stuart v. Kissam, 2 Barb. R. 493. Vide L'Amoureaux v. Van Rensselaer, 1 Barb. Ch. R. 34.)

A conveyance by a husband of all his right in his wife's property in trust, for her separate use and the use of her children, is valid, not only as to the husband, but as to his creditors. (Donnelly's Estate, 2 Phila. R. 51.)

CHAPTER XXV.

ACQUISITIONS OF THE WIFE DURING COVERTURE TRANSACTIONS BETWEEN HUSBAND AND WIFE-REAL ESTATE CONVEYED TO HUS

BAND AND WIFE, HOW HELD WIFE'S REAL PROPERTY, HOW

TRANSFERRED.

§ 349. THE effect of the separate use or trust is to enable a married woman, in direct contravention of the principles of law, to acquire property independently of her husband, and to enter

into contracts and incur liabilities in reference to such property, and dispose of it as a feme sole, notwithstanding her coverture and disability at law. But independently of the acquirement by the wife of separate property by the means of the separate trust before considered, there are ways by which she may obtain property apart from her husband, and hold it entirely free from his interference. For example, she may acquire property by carrying on trade on her own separate account apart from her husband. She may do this under a particular custom of the city of London, in which case it must be done strictly with the terms of the custom. The trade must be carried on within the city, and on the wife's sole account; for if by any means it can be proved that the husband had any concern in the trade, the case will not be protected by the custom. But the intermeddling of the husband is expressly provided against by the husband. He may, however, determine his wife's trading in future; but he cannot do so in retrospect, neither can he do any act to injure her creditors, who are entitled to be satisfied out of her property in trade. But after these demands are satisfied, it seems he may by law possess himself of the surplus of her property; for the custom does not extend to this point, it regarding only trade and commerce. (Lavie v. Phillips, 3 Burr. R. 1782.) This local custom, however, is of little general importance, although the same custom may prevail elsewhere than in London.

$350. But the ability of the wife to carry on business on her own individual account, may arise in consequence of express agreement between her and her husband before marriage, or from his subsequent permission. Upon the abstract question of the legal power of the wife to carry on trade upon her separate account during marriage, Lord Mansfield has observed, "that whether by any means a man might before marriage put his intended wife in a situation to carry on a separate trade, there was no authority that he might not do so." (Jurman v. Walloton, 3 Term R. 620.)

When the agreement is made previously to the marriage, the marriage being a valuable consideration, the transaction will not only be obligatory upon the husband, but it will also be binding upon his creditors. When the agreement originates during the marriage, it will be void against his creditors but good against himself, and all persons claiming as volunteers from or through him, upon the same principle that a post-nuptial settlement is valid, except as against creditors existing at the date of the settlement.

And in equity, securities given by or to the wife in her name, for a debt which she is allowed to contract in respect to her separate business, will be established against herself in respect to her acquisitions in such business, upon the principal of her power of acting as a feme-sole, and her absolute dominion over such separate acquisitions and concerns. (2 Bright's Husband and Wife, 298. Vide Kassel v. Becker, 25 How. Pr. R. 373.)

It has been held that a wife may become a sole dealer or trader, by permission of her husband, even without deeds between them, and therefore she becomes entitled to all her earnings, as her separate estate. (Megrath v. Robertson, 1 Dessau. R. 445.)

The personal savings of the wife, the result of her labor, may with the assent of the husband, be applied to her separate use, so far as the husband and his representatives are concerned, though not as against the creditors of the husband. (Bashaw v. Chamberlain, 7 B. Mon. R. 443.)

The husband may, by gift or contract, create in his wife a separate estate in the proceeds of her own labor; the validity of such gift as against creditors, being subject to the same rules which apply to other voluntary conveyances. (Pinkston v. McLemore, 31 Ala. R. 308.)

§ 351. If the husband deserts his wife, and refuses to perform his marital obligations and duties, the acquisitions of property by the wife, during such desertion, are her own, and of course she may dispose of them as she pleases. (Stenett v. Wynn, 17 Serg. & Rawle's R. 130. Lawrence v. Spear, 17 Cal. R. 421. Beadum v. Pratt, 1 Ohio St. R. 403.) And in these cases the doctrine is recognized that the wife in such circumstances may sue and be sued as a feme-sole. (Vide also Cecil v. Juxon, 1 Atk. R. 278.)

In Pennsylvania, it has been held that a married woman left by her husband to obtain her own living, may claim compensation for her labor, and though she cannot sue in her own name at law, yet her marriage would make no objection in a court of equity. (Spier's appeal, 26 Penn. R. 233.)

And in the State of Ohio, it has been decided that a wife abandoned in a foreign country, and who comes to this country to reside after such abandonment, is competent to contract for necessaries and acquire property by her own labor, and bring suits, and be sued, in the same manner as though she was a feme-sole. (Wagg v. Gibbons, 5 Ohio St. R. 580.)

When the husband, by his cruelty, drove his wife from his house without providing any means for her support, and she came to the State of Massachusetts and maintained herself there for more than twenty years as a single woman, and it appeared that the husband had always been a citizen and resident of another state, and had, since the expulsion of his wife, married and cohabited with another woman, it was held that she was entitled to do business, and sue and be sued as a feme-sole. (Abbot v. Bagley, 6 Pick. R. 89.)

In a previous case decided in the State of Massachusetts, it was held that a feme-covert, whose husband deserted her in a foreign country, and who had thereafter maintained herself as a single woman, and for five years had lived in that commonwealth, the husband being a foreigner, and having never been within the United States, was competent to act as a feme-sole, and receive the rewards of her personal labor and business; and, further, that she might sue and be sued as a feme-sole, and that her release would be a valid discharge for any judgment she might recover.

In giving the opinion of the court, Putnam, J., said: "Miserable, indeed, would be the situation of those unfortunate women whose husbands have renounced their society and country, if the disabilities of coverture should be applied to them during the continuance of such desertion. If that were the case, they could obtain no credit on account of their husbands, for no process could reach him; and they could not recover for a trespass upon their persons or their property, or for the labor of their hands. They would be left the wretched dependents upon charity, or driven to the commission of crimes to obtain a precarious support. * * The case at bar comes within the spirit of the rule of the common law, founded in reason and necessity, in cases of exile and abjuration. The plaintiff has been domiciled here many years as a feme-sole. Her husband is an alien; and never was and is not expected ever to be in this country. He abandoned his wife, and for a great number of years made no provision for her support in his own country. He has not, it is true, abjured his country; but he has compelled his wife to abjure it. This should not make the case better or worse for her. If the husband had been a native citizen, and had deserted his wife, and became a subject of a foreign state, the law would be clear for her, upon the adjudged cases.

"We are satisfied that the plaintiff may acquire property, and be permitted to sue, and is liable to be sued as a feme-sole, and that

her release would be a valid discharge for the judgment she may recover." (Gregory v. Paul, 15 Mass. R. 31, 34, 35.)

The desertion of the husband, however, which will effect this must be complete and absolute, and continued with the intent to renounce de facto the marital relation, and leave the wife to act as a feme-sole. (Gregory v. Pierce, 4 Metc. [Mass.] R. 478.)

When husband and wife live apart by voluntary separtaion, the wife is entitled to all acquisitions of property which may arise from her personal services, and it has been held that in such a case she may sue and be sued as a feme-sole; but the better doctrine is, that, independent of statutory provision, a feme-covert cannot sue or be sued alone, while living apart from her husband under a deed of separation. (Vide Hyde v. Price, 3 Ves. R. 443. Beard v. Webb, 2 Bos. & Pul. R. 105. Wardell v. Gooch, 7 East's R. 582. St. John v. St. John, 11 Ves. R. 529. Baker v. Barney, 8 Johns. R. 72.)

§ 352. In the State of Maine, it has recently been held that the general rule is, that a married woman cannot make a binding contract, or be the subject of a suit; but if there has been a desertion by the husband, in the ordinary meaning of the term, and their separation has been long continued, and is so complete that he must be regarded as having renounced all his marital rights and relations, such a case would be an exception to the rule, and she would be treated as a feme-sole; and that evidence that the separation was by the mutual consent of the parties, and that provision for a separate maintenance of the wife was made by the husband, tends to prove such a renunciation, but does not render the conclusion inevitable that the husband has renounced all his marital rights. (Ayer v. Warren, 47 Maine R. 217.)

§ 353. In the State of New York, it has been held that previous to 1860 the common law controlled the relation and rights of husband and wife in respect to the services of the latter, and that an agreement made prior to that date, between a married woman, with the knowledge and consent of her husband, and a third person, for personal services to be rendered by the wife, who agreed that she should be paid what her services were worth, gave to the wife no title to her earnings in her own right; and that in law such earnings belonged absolutely to the husband, and the promise to pay her was, in law, a promise to pay the husband. In giving the opinion of the court the judge remarked: "It does not need