North Carolina, if the aid of a court of equity be required by the husband to enable him to take possession of his wife's property, he must make reasonable provision for her; and the rule is the same when his legal representatives or assignees claim it. But their decisions go no further, and the wife cannot, by a suit in equity, stop him, though he be insolvent, from taking possession, unless her claim be founded upon a marriage settlement. (a) The Superior Court of New Hampshire intimates that it may, perhaps, be authorized to apply the principle of sustaining the wife's equity, when the husband or his assignee asks the aid of the court to obtain possession of the distributive share of his wife. (b)

There is a difference as to choses in action belonging to the wife, whether the husband sues in his own name exclusively, or jointly with his wife. The principle of the distinction is, that if he brings the action in his own name alone, (as it is said he may for a debt due to the wife upon bond,) (c) it is a disagree

land, 4 Gill & Johns. Rep. 282. In Tennessee, it has been adjudged that the wife's equity will be enforced: (1) When the husband or his assignee is asking the aid of a court of equity to reduce her property into possession: (2) At the suit of the wife or of her trustee, praying for the provision: (3) When the trustee designs or is willing to pay or deliver over the property to the husband or his assignee without suit. In that case, all of them will be enjoined, at the suit of the wife, from changing the possession until provision be made. But if the husband or his assignee has already reduced the property into possession, a court of equity does not interfere. Dearin v. Fitzpatrick, Meigs, 551. These are the settled principles on the subject in the English equity system. (a) Bryan v. Bryan, 1 Dev. Eq. Rep. 47.

(b) See Parsons v. Parsons, 9 N. H. Rep. 309-336, where Ch. J. Parker has examined the history and doctrine of the wife's equity with accurate and elaborate learning.

(c) Lord Chancellor, in Oglander v. Baston, 1 Vern. 396. Howell v. Maine, 3

1 See Allen v. Allen, 6 Ired. Eq. 293. Barron v. Barron, 24 Verm. 375, 391. The wife's equity extends as well to real as to personal property. In Moore v. Moore, 14 B. Mon. 259, it was allowed, to the wife out of the proceeds of lands which descended to her during the coverture; and in such case the wife may assert her right by original bill. So where the wife joined with the husband in the conveyance of lands, and the husband became insolvent before the price was paid, a suitable settlement was decreed to her out of the price. Lay v. Brown, 13 B. Mon. 295. The wife may waive her right by permitting the conveyance; Wright v. Arnold, 14 B. Mon. 638; or by joining in the receipt for the proceeds; ex parte Geddes, 4 Rich. Eq. 301; or explicitly, on a separate examination; Ward . Amory, 1 Curtis, C. C. 419. And, see, McVey v. Boggs, 3 Maryl. Ch. 94. Barrow . Barrow, 31 E. L. & Eq. 241.

ment to the wife's interest, and implies it to be his intention that it should not survive her. But if he brings the action in their joint names, the judgment is, that they shall both recover, and the debt survives to the wife. The judgment does not alter the property, or show it to be his intention that it should be altered. It is also the rule of equity, that if before marriage the husband makes a settlement on the wife, in consideration of her fortune, he is considered in the light of a purchaser of her fortune, and his representatives will be entitled, on his dying in his *143 wife's lifetime, to the whole of her things in action, though not reduced to possession in his lifetime, and though there be no special agreement for that purpose. If the settlement be in consideration of a particular part only of her fortune, the right of survivorship in the wife will exist only as to the part of her property not comprised in the settlement, and not reduced to possession by the husband. (a) The settlement must state, or import, that it was in consideration of the wife's fortune, and it must appear to be adequate to the purchase of her fortune, before it will bar her right of survivorship. (b)

(5.) As to personal property of the wife, which she had in possession at the time of the marriage in her own right, and not en autre droit, such as money, goods, and chattels, and movables, they vest immediately and absolutely in the husband, (c) and he can dispose of them as he pleases, and on his death they go to his representatives, as being entirely his property. (d)

Lev. 403. But Mr. Preston, in his Essay on Abstracts of Title, vol. i. p. 348, condemns the doctrine in this case in Levinz, and denies that the husband can sue alone on a bond given to the wife alone.

(a) Butler's note, 304, to lib. 3 Co. Litt. 1 Vern. 396, note 5. Garforth v. Bradley, 2 Vesey, 677. Middleton v. Wynn, 1 Eq. Cas. Abr. 70, pl. 15. Packer v. Wyndham, Prec. in Ch. 412. Druce v. Dennison, 6 Vesey, 395.

(b) Cleland v. Cleland, Prec. in Ch. 63. Salway v. Salway, Amb. Rep. 692. Lord Eldon, in Druce v. Dennison, 6 Vesey, 395. The Master of the Rolls, in Carr v. Taylor, 10 ibid. 579. The cases admit that the settlement will not bar the wife's equity to a further settlement out of property accruing during coverture, unless it be made in consideration of her fortune which she then has, or may thereafter be entitled to.

(d) By the statute law of Georgia of 1789, the real estate belonging to the wife at the marriage, becomes vested in and passes to the husband in the same manner as

II. The duties which the husband assumes:

(1.) To pay her debts.

'

The husband is answerable for the wife's debts before coverture; but if they are not recovered during the coverture, he is discharged. (a) He is answerable for her debts only in virtue of the duty imposed on him to discharge all the obligations of the wife; and that his responsibility should cease after coverture ceases, is, in some cases, rather against conscience; but then, as a compensation for the rule, it is to be con- *144 sidered that the charging the husband in all cases with the debts, would be against conscience also. It is a strict rule of law, which throws upon the husband, during coverture, all the obligations of the wife; and by the same rule of law, he is discharged after the coverture ceases, by the death of the wife. Courts of equity have held, that they could not vary the rule of law according to the fact, whether the husband had, or had not, received a portion with his wife, or charge his conscience in one case more than in the other. This is the meaning of the case of Heard v. Stamford, (b) according to Lord Redesdale's explanation of the rule on this point. (c)

personal property. See infra, vol. iv. p. 29. There is a prevalent disposition in many of the states to enlarge the powers of the wife, and abridge those of the husband, over her separate property, belonging to her at marriage, or subsequently acquired by her, and to substitute the policy of the civil law for that of the common law on the subject. Thus, by the constitution of Wisconsin, adopted in 1846, all the real and personal property of the wife, at the time of her marriage, or acquired by her afterwards, are to be her separate property. So the legislature of Arkansas have exempted all such property from liability for her husband's debts.

(a) He is liable for a breach of trust committed by the wife before marriage. Palmer v. Wakefield, 3 Beavan, 227.

(b) 3 P. Wms. 409. Cases temp. Talb. 173.

(c) 1 Sch. & Lef. 263. Witherspoon v. Dubose, in Court of Appeals, in S. C. Law Journal, No. 3, p. 366, S. P.

1 Where the wife, before marriage, held shares in a joint-stock, which remained in her name after marriage, the husband refusing to have any thing to do with them: held, that he was not liable as a member of the company. The company's deed of settlement provided that the husband of a shareholder should not be a member. Dodgson v. Bell, 3 Eng. L. & E. R. 542.

In New York, by statute passed (July 18, 1853,) Laws of 1853, ch. 576, p. 1057, suits to recover debts contracted by the wife before marriage, may be brought against husband and wife; but the judgment and execution affect the separate estate of the wife only. A husband, however, who acquires the separate property of his wife, is liable to the extent of such property for her debts contracted before marriage. (§ 2, ib.)

The rule of law on this subject may operate very injuriously to creditors; for if the wife be largely indebted before marriage, and the husband takes and appropriates all her personal property to himself, and the wife dies before the creditors have collected their debts, the husband is no longer liable, and the creditors of the wife are left without remedy. If the husband himself dies before the debts are collected, his representatives are not liable; and though the wife remains liable after her husband's death, for her former debts remaining unpaid, she may have no property to pay them. The answer to this objection is attempted by Lord Macclesfield, in the Earl of Thomond v. Earl of Suffolk. (a) It may be hard, he observes, that the husband should be answerable for the wife's debts, when he receives nothing from her; but we are to set off against that hardship, the rule, that if the husband has received a personal estate with the wife, and happens not to be sued during the coverture, he is not liable. He runs a hazard in being liable to the debts, much

beyond the personal estate of the wife; and in recom* 145 pense for that *hazard, he is entitled to the whole of her personal estate, though far exceeding the debts, and is discharged from the debts as soon as the coverture ceases. In Heard v. Stamford, there was a strong effort made before Lord Ch. J. Talbot, to charge the husband, after the wife's death, with a debt of hers, dum sola, to the extent of what he had received from her, for she happened to bring a large personal estate to her husband. The injustice of the case was pressed upon the court, for upon the rule as it stood, a feme sole might be worth 10,000l. and owe 1,000l., and marry and die, and the husband might appropriate the 10,000l. to his own use, and not pay one farthing of the debt. Lord Nottingham was so provoked at the hardship of the rule, in a case in which the wife brought a large portion to her husband, and died, and when the husband continued in possession of the goods, and refused to pay the very debt contracted by the wife for the goods, that he declared he would alter the law. But Lord Talbot said, that nothing less than an act of parliament could alter the law; and the rule was fixed, that the husband was liable for the wife's debts only

(a) 1 P. Wms. 469.

during the coverture, unless the creditor recovered judgment against him in the wife's lifetime, and that only the wife's choses in action not reduced to possession in her lifetime, would be assets in the husband's hands, when they come to him, as her administrator. If relief ought to be given against the husband, because he received sufficient property with the wife, then by the same reason, if the wife had brought no fortune to her husband, and judgment was recovered against him during coverture, relief ought to be afforded to the husband against this judgment after his wife's death. He declared that the rule could not be disturbed by a court of equity; and it has continued unaltered to this day. The husband is liable, not as the debtor, but as the husband. It is still the debt of the wife, and if she survives her husband, she continues personally liable. (a) It has also been held by the K. B., in Miles v. Williams, (b) that the debts of the wife dum sola, as well as the husband's debts, are discharged by the bankruptcy of the husband. It is clear that a certificate of bankruptcy dischargeş him; and Lord Ch. J. Parker thought that the wife was also discharged forever, and not merely during the husband's life, though on that point, he said, it was not necessary to give a decided opinion. (1)

(2.) To maintain her.

*146

The husband is bound to provide his wife with necessaries suitable to her situation and his condition in life; and if she contracts debts due for them during cohabitation he is obliged to pay those debts; but for any thing beyond necessaries he is not chargeable. He is bound by her contracts for ordinary purchases, from a presumed assent on his part; but if his dissent

(a) Woodman v. Chapman, 1 Campb. N. P. 189.

(b) 1 P. Wms. 249. It was decided, in Lockwood v. Salter and wife, 2 Neville & Manning's Rep. 255, that the wife's debts, dum sola, were extinguished by the husband's discharge as a bankrupt or insolvent. But see contra, supra, p. 138, Mallory v. Vanderheyden, the rule in equity, and which is the correct rule, though the rule at

law is otherwise.

1 It is now settled in New York, that a discharge of the husband under the bankrupt laws, is no discharge of the wife. Mallory v. Vanderheyden, 3 Barb. Ch. 9. S. C. 1 Comst.

R. 453.