Whenever the property is so limited to the wife, that it cannot possibly fall into possession during the marriage, the husband has no power to dispose of it. As if a lease were made to the husband and wife for their lives, and to the executors of the survivor, the husband could not release or dispose of the remainder against the title of his wife surviving him; because it could not possibly come into possession during the marriage, and the wife's interest, or chance, was a mere possibility.a *SECTION II. WIFE'S SEPARATE ESTATE. *1086 THOUGH by the common law the wife is incapable of enjoy- A wife ing real or personal estate, separate from and independent of may have her husband, and though in general her property vests in the a separate property husband by the marriage, yet under certain circumstances, she over may enjoy a separate property, over which her husband has no which her control.(1) As if property be vested in trustees before marriage husband to enable the wife to carry on business upon her sole account, and for her separate use, the disability of coverture will be so can have no control, * 2 Roll. Ab. 48. 10 Rep. 61. Touchst. 344. And see Belcher v. Hudson, Cro. Jac. 222. Gage v. Acton, i Salk. 326. Hob. 216. Cro. Jac. 571. valuable consideration, will bar her right. The assignec, however, must be a purchaser, else he will stand in the place of the husband, and failing to reduce the chose to possession in the lifetime of the husband, the wife's right will survive. In other words, the husband may sell his wife's chose in action, but cannot give it away freed from the incidents of the marriage. Per Gibson, C. J., in Hartman v. Dowdel, 1 Rawle, 279. On the ground that an assignment in discharge of a debt is on valuable consideration, and that an assignment as a pledge or collateral security is not, the court held in the above case that an assignment by a husband of his wife's choses in action as a collateral security, does not deprive her of the right of survivorship, in case he dies before they are reduced to possession. Ibid. See a very full and elaborate discussion of this doctrine in Siter's case, 4 Rawle, 468.) (1) (A separate interest in a wife in personal chattels was unknown to the common law. Like her person, her property was under the control of her husband. This strictness has been much relaxed by the decisions of the courts of equity. It is now fully established that a separate property may be held by a married woman, through the intervention of a trust, and even without the interposing office of a trustee. To exclude, however, the marital rights over her property, a clear intention in the donor, that it shall be for her separate use, must appear. No technical words are necessary to create a separate use, but adequate language must be employed, in making the gift, to manifest a decided intention to transfer a separate interest; to show that the husband was not to enjoy what the law would otherwise give him. Per Earle, J., in Carroll v. Lea, 3 Gill & Johns. 508. The rule is, that the intervention of trustees to whom a devise or bequest is made for the use of a married woman is not of itself sufficient to determine it to be for her separate use. Per Kennedy, J., in Evans v. Know, 4 Rawle, 66. Where a husband, immediately after the marriage, deserted his wife and married another woman and never returned to his wife or contributed in any manner to her support, it was held that personal property, acquired by her during such desertion, became her separate estate which she might dispose of by will or otherwise. Starrett v. Wynn, 17. Serg. & R., trustees by marriage settlement. through far removed, that the transaction will be established against the the inter- husband and his creditors. In such case the trustees of the vention of wife will be entitled to the property assigned, and to its increase and profits, for her sole and separate use and benefit. The law considers the wife as the agent of her own trustees, and her possession as their possession. Thus, where by a settlement before marriage, reciting an agreement, that the wife's stock in trade, &c., should be assigned to trustees for her separate use and benefit, to the intent that she might carry on the trade at her own risk and charges, and for her own separate and exclusive benefit she assigned to A. all her stock in trade and effects and all book debts, &c., in trust for her separate use; there was not any schedule of the property annexed to the deed, or referred to; after the marriage she carried on the business (of a milliner) in the same house with her husband, but in a separate apartment; he paid the rent of the house, and was at the expense of fitting up the shop; the husband having become a bankrupt; the court held, that his assignees were not entitled to her property, for A., the trustee, was the real owner of it, and it was not in the order and disposition of the husband with the consent of the real owner, to make the case fall within the statute. The wife's possession of the goods was as agent of the trustee. And the want of a schedule to the deed, specifying the property assigned, was immaterial, for it would have *1087 given no public notice or information, and it would have been only known to the persons interested in the settlement. So where by a settlement before marriage, thirty-two cows, &c., and the increase and produce arising therefrom, were assigned to trustees for the separate use of the wife, the husband covenanting to permit her to carry on the trade of a cow-keeper to her separate use; after marriage, the wife, with the profits of her trade, purchased four more cows; held, that the settlement was good against the creditors of the husband, and that the cows purchased after the marriage were also protected by it. With respect to the latter, Mr. Justice Buller said it was the same as if the wife had paid the produce arising from the original cows to the trustees, and they had purchased the other cows, for she had acted as the agent of the trustees.b So where a feme sole, who kept a horse and chaise to visit her customers, by deed conveyed to trustees "all her household furniture, goods, and chattels, (specified in a schedule, in which the horse and chaise were not included,) and all her stock in trade, and other articles belonging to her in and about her business; after marriage she used the horse and chaise as before; held, that the horse and chaise passed to the trustees, as belonging to her in and about her business, and that they a Jarman v. Woolloton, 3 T. R. 618. Haselington v. Gill, 3 Doug. 415. (26 Eng. C. L. 171.) 3 T. R. 620, n. were not liable to be taken in execution for the debts of her husband." Regularly, when property is intended to be given or settled upon married women for their separate uses, it ought to be vested in trustees for them; but even though such precaution be not observed, still in equity, the intention will be effectuated, and the wife's interest will be protected by the conversion of her husband into a trustee for her.b A wife's property may be limited by a marriage settlement to her husband, until he becomes insolvent, and from that event, *to the wife's separate use for life. But a husband cannot *1088 before marriage, settle his property, so as, by express stipulation, with a view to future insolvency, to give his wife, in that event, any part of his property.d woman of in fraud of Though in strictness a husband has no right to any of his A disposiwife's property before marriage, and in general the wife can tion by a dispose of her fortune as she pleases before that event, yet, her proif after the commencement of a treaty for marriage the wife perty, should make a voluntary disposition of her property, without pending a the knowledge or concurrence of her intended husband, such treaty of disposition will in general be void, as being a fraud on his ma- marriage, rital rights. (1) But in applying the principle upon which con- her husveyances made by the intended wife, pending a treaty of mar- band, will riage, are avoided upon the ground of fraud on the marital be void as right, the court will take into consideration the meritorious ob- against ject of such conveyances, and the situation of the intended husband in point of pecuniary means. Therefore, where, pending a treaty of marriage, a conveyance was made by the intended wife as a provision for the children of a former marriage, the court refused to set it aside. So where a conveyance was made to a sister, and the husband was presumed to have notice of the assignment before marriage. But the concurrence of the husband in the settlement precludes all objection on this ground.h him. Dean v. Brown, 5 B. & C. 336. (11 Eng. C. L. 248.) 8 D. & R. 95. 2 C. & P. 62. (12 Eng. C. L. 30.) b2 Roper, 152. Bennett v. Davis, 2 P. Wms. 316. Per Lord Eldon, in Rich v. Cockell, 9 Ves. 375. Parker v. Brook, id. 583. Lockyer v. Savage, 2 Stra. 947. Ex parte Hinton, 14 Ves. 598. Ex parte Cooke, 8 Ves. 354. Higgingbotham v. Holme, 19 Ves. 88. Ex parte Hodgson, id. 206. Ex parte Murphy, 1 Scho. & Lef. 44. Higginson v. Kelly, 1 Rose, 369. The Countess of Strathmore v. Bowes, 1 Ves. jun. 28. Howard v. Hooker, 1 Eq. Cas. Ab. 59. 2 Ch. Rep. 81. Carleton v. Dorset, 2 Ver. 17. Hunt v. Mathews, 1 Ver. 408. Goddard v. Snow, 1 Russ. 485. 1 Roper, 165, et seq. 'King v. Cotton, 2 P. Wms. 674. See Newstead v. Searles, 1 Atk. 265. St. George v. Wake, 1 Mylne & K. 610. Id. Slocombe v. Glubb, 2 Bro. C. C. 545. (1) (Crane v. Morris's Lessee, 6 Peters, 598.) *SECTION III. OF THE LIABILITY OF THE HUSBAND IN RESPECT OF THE A husband is liable for the contracts of his wife dum sola. A husband is not liable for any contracts entered into by his wife du ring co verture without his assent express or implied. HAVING Considered the interest which the husband acquires in his wife's property by the marriage, it is proposed to treat next of his liability in respect of her contracts; and first, as to her contracts before marriage. 1.-Liability of the husband for the contracts of his wife dum sola.] It may be laid down as an established rule, that the husband is liable, during the marriage, for all contracts made by her dum sola, how improvident soever they may be, though she does not bring him a portion of one shilling; and on the other hand, that unless such contracts be enforced during the coverture, he is not personally responsible in respect of them, be her fortune ever so great; but if he becomes her administrator, he is chargeable in his representative capacity to the extent of her assets.a 2.-Liability of the husband for the contracts of his wife during cohabitation.] During the coverture the wife is in general incapable of acquiring any property of her own, or of binding her husband by any contract made by her without his authority, express or implied; while, however, they live together, *if she orders any goods, or enters into any contract for necessaries for herself or the family, the law will presume that in so doing she acted as his agent, and under his authority; and he will be responsible for such contracts unless he rebuts the presumption of agency by express evidence. The rule of law is this: If the husband and wife live together, and the hus Bac. Ab. Baron and Feme (E.) Com. Dig. Baron and Feme (2 C.) (N.) F. N. B. 121. Heard v. Stamford, 3 P. Wms. 409. Cas. temp. Talbot, 173. 1 Roll. Ab. 351. But in an action in respect of a contract of the wife previous to the marriage, the husband may show, under the general issue, that at the time of the supposed contract she was the wife of another man, who is still alive. Cowly v. Robertson, 3 Camp. 438. Etherington v. Parrott, 2 Lord B. N. P. 134. Manby v. Scott, 1 Mod. 125. Raym. 1006. Montague v. Benedict, 3 B. & C. 631. (10 Eng. C. L. 205.) Martin v. Withers, Skin. 348. band will not supply her with necessaries, or the means of obtaining them, then, although she has her remedy in the Ecclesiastical Court, yet she is still at liberty to pledge his credit for what is strictly necessary for her own support. But if he provides her with necessaries, he is not bound by her contracts, unless there is reasonable evidence to show that she has made the contract with his assent. Cohabitation is presump- Cohabitative evidence of the assent of the husband, but it may be re- tion is prebutted by contrary evidence; and when such assent is proved, sumptíve the wife is the agent of the husband duly authorised. Where of assent. a husband is living in the same house with his wife, he is liable to any extent for goods which he permits her to receive there; she is considered as his agent, and the law implies a promise on his part to pay the value.b But to render the husband liable for goods supplied to his wife during cohabitation, without his express assent, it is necessary that the goods be supplied on the credit of the husband, and that they be necessaries suitable to his estate and circum stances. necessa Where the plaintiff, a milliner, supplied articles of dress to The husthe amount of 2004., in the course of six months, to the wife of band is not the defendant, an apothecary in a country town, and it did not liable exappear that he had any knowledge of the goods having been cept for supplied, and the plaintiff took from the wife a promissory ries supnote, in her own name, for the amount; besides, her father had plied on settled a former account of the same sort, which she had with his credit. the plaintiff without the knowledge of her husband, and desired the plaintiff not to give her any further credit without her *husband's sanction; it was held, that the husband was not *1091 liable, as the goods were not supplied on his credit, but on that of his wife. So, where the plaintiff had furnished the wife of the defendant, an attorney, not in extensive practice, with fashionable dress, to the amount of 1837., in about a year and a half, but debited the wife in his books, and she had partly paid for the goods by bills of exchange accepted by herself, and paid by her; it appeared that the husband had seen her wear some of the dresses; it also appeared, that when one of her acceptances became due, the plaintiff wrote her, beseeching her to provide for it, and that he made no application to the husband respecting it, and that she said in the presence of the plaintiff and the defendant, that "her husband never paid her bills, she always paid her own." Heath, J., left it to the jury to consider, whether credit had been given to the wife and not to the husband, and the jury having found a verdict for the plaintiff, the court set it aside and granted a new trial. So, where the husband, during his temporary absence, made an a Per Bayley, J, in Montague v. Benedict, 3 B. & C. 635. (10 Eng. C. L. 205.) Per Lord Ellenborough, C. J., in Wightman v. Wakefield, 1 Camp. 121. • Metcalf v. Shaw, 3 Camp. 22. Bentley v. Griffin, 5 Taunt. 356. (1 Eng. C. L. 131.) |