civil disability. A wife may acquire a separate character by the civil death of her husband, but she cannot acquire it by a voluntary separation.

*But a few years afterwards, the court of K. B., under 159 the influence of Lord Mansfield, in the celebrated case

of Corbett v. Poelnitz, (a) introduced a new principle into the English law, respecting the relation of husband and wife; but a principle that was familiar to the Roman law, and to the municipal law of most of the nations of Europe. The court, in that case, held that a feme covert living apart from her husband, by deed of separation mutually executed, and having a large and competent maintenance settled upon her, beyond the control of her husband, might contract and sue, and be sued at law as a feme sole. Lord Mansfield put the action upon the ground of the wife having an estate settled upon her to her separate use, and acquiring credit, and assuming the character and competency of a feme sole. The ancient law had no idea of a separate maintenance; and, when that was introduced, the change of customs and manners required, as indispensable to justice, the extension of the exceptions to the old rule of law, which disabled a married woman from contracting. The reason of the rule ceased, when the wife was allowed to possess separate property, and was disabled from charging her husband.

This decision of the K. B. was in 1785, and it gave rise to great scrutiny and criticism. It was considered as a deep and dangerous innovation upon the ancient law.

In Compton v. Collinson, (b) Lord Loughborough held, notwithstanding that decision, that it was an unsettled point, whether an action could be maintained against a married woman, separated from her husband by consent, and enjoying a separate maintenance. Again, in Ellah v. Leigh, (c) the K. B., in 1794, indirectly assailed the decision of Corbett v. Poelnitz, and did not agree that the court could change the law, so as to adapt it to the fashion of the times. They declared,

(a) 1 Term Rep. 5. Ringsted v. Lady Lanesborough, and Barwell v. Brooks, 3 Dong. Rep. 197, 371, were cases that preceded the one of Corbett v. Poelnitz, and

declared the same doctrine.

(b) 1 H. Blacks. Rep. 350.

(c) 5 Term Rep. 679.

however, without touching the authority of the decision, *160 that, upon a voluntary separation of husband and wife, without a permanent fund for her separate use, she could not be sued alone as a feme sole. Afterwards, in Clayton v. Adams, (a) the court of K. B. went a step further towards overturning the authority of Corbett v. Poelnitz, and held, that though the wife lived apart from her husband, and carried on a separate trade, she was not suable; for if she could be sued as a feme sole, she might be taken in execution, which would operate as a divorce between husband and wife. At last, in Marshall v. Rutton, (b) the K. B. decided, in 1800, after a very solemn argument before all the judges, that a feme covert could not contract and be sued as a feme sole, even though she be living apart from her husband, with his consent, and have a separate maintenance secured to her by deed. The court said, that the husband and wife, being but one person in law, were unable to contract with each other, and that such a contract, with the consequences attached to it, of giving the wife a capacity to contract, and to sue and be sued, would contravene the general policy of the law in settling the relations of domestic life, and would introduce all the confusion and inconvenience which must necessarily result from so anomalous and mixed a character as such a married woman would be. The only way in which such a separation can be safe and effectual is, by having recourse to trustees, in whom the property, of which it is intended the wife shall have the disposition, may vest, uncontrolled by the rights of the husband, and it would fall within the province of a court of equity to recognize and enforce such a trust. (c) At law, a woman cannot be sued as a feme sole while the relation of marriage subsists, and she and her husband are living under the same government. (d)

Lord Eldon, afterwards, in the case of Lord St. John v. Lady

(a) 6 Term Rep. 604.

(b) 8 Term Rep. 545.

(c) 2 Story's Equity, 652. Clancy on the Rights of Husband and Wife, b. 4, c. 3, et seq. Bettle v. Wilson, 14 Ohio Rep. 257. In this last case, it was adjudged that articles of separation between husband and wife, through the medium of a trustee, for her support, were valid.

(d) It has been adjudged, in Benedict v. Montgomery, 7 Watts & Serg. 238, that if husband and wife join in a sale of her real estate, and he takes the proceeds to his own use, there is no implied fund raised in favor of the wife.

St. John, (a) speaking of these decisions at law, expressed *himself very decidedly against the policy and the power *161 of a feme covert becoming a feme sole by a deed of separation. She was incompetent to contract for the husband; and, if separated, she could not be a witness against her husband; she could not commit felony in his presence; she must follow the settlement of her husband; her husband would be suable for her trespass. In short, the old rule is deemed to be completely reëstablished, that an action at law cannot be maintained against a married woman, unless her husband has abjured the realm. (b)

But if the husband and wife part by consent, and he secures to her a separate maintenance, suitable to his condition and circumstances in life, and pays it according to agreement, he is not answerable even for necessaries; and the general reputation of the separation will, in that case, be sufficient. This was so ruled by Holt, Ch. J., in Todd v. Stoakes, (c) and this general doctrine was conceded in the modern case of Nurse v. Craig,(d) in which it was held, that if the husband fails to pay the allowance, according to stipulation in the deed of separation, the person who supplies the wife with necessaries can sue the husband upon an indebitatis assumpsit. This rule, in all its parts, was adopted by the Supreme Court of New York, in Baker v. Barney. (e) But our courts have not gone further, and have never adopted the rule in Corbett v. Poelnitz, (f) and I apprehend that the general rule of the common law, as understood before and since that case, is to be considered the law in this coun

try; though, perhaps, not exactly under the same strait- *162 ened limitation mentioned in the books. (g)1

(a) 11 Vesey, 537.

(b) See the observation of the Master of the Rolls, in 3 Vesey, 443, 444, 445.

(c) Salk. Rep. 116.

(d) 5 (2 N. S.) Bos. & Pull. 148.

(e) 8 Johns. Rep. 72. The same rule applies where the husband and wife are separated by a divorce a mensa et thoro, with an allowance to the wife for alimony, and the husband omits to pay it. Hunt v. De Blaquiere, 5 Bing. Rep. 550.

(f) See 2 Halsted's Rep. 150, where that case was expressly condemned. (9) In some of the states, as Pennsylvania and South Carolina, a wife may act as

1 By a late statute in Massachusetts, (1855, c. 304,) a married woman may carry on any

IV. Wife's capacity in equity.

(1.) Of property in trust for wife.

possess

At common law a married woman was not allowed to personal property independent of her husband. But in equity she is allowed, through the medium of a trustee, to enjoy property as freely as a feme sole; and it is not unusual to convey or bequeathe property to a trustee in trust, to pay the interest or income thereof to the wife, for her separate use, free from the debts, control, or interference of her husband, and payable upon her separate order or receipt, at and after the times that the payments respectively become due, and after her death in trust for her issue. In such cases, the husband has no interest in the property, though after the interest is actually received by the wife, it then might be considered as part of the husband's personal estate. (a) 1 It is not necessary that the trustee should be a

a feme sole trader, and become liable, as such, in imitation of the custom of London. Act of 1718, Purdon's Dig. 424. Burke v. Winkle, 2 Serg. & Rawle, 189. Newbiggin v. Pillans, 2 Bay's Rep. 162. State Reports in Equity, S. C. 148, 149. But, for greater protection to the wife, no suit can be brought, in South Carolina, by or against a feme covert sole trader, unless her husband be joined. 4 M'Cord's Rep. 413; and in Pennsylvania, the privilege extends only to the wives of husbands gone to sea, and whose wives are left at shop-keeping, or to work at any trade for a livelihood. In Louisiana, the wife has peculiar powers and privileges, and may be a public merchant, and bind herself, yet she cannot contract a debt by note without the authorization of her husband. Civil Code of Louisiana, art. 128, 2412. 12 Louisiana Rep. 13. (a) Lee v. Prieaux, 3 Bro. Ch. 381. Norris v. Hemingway, 1 Hagg. Eccl. Rep. 4. Ex parte Gadsden, S. C. Law Journal, No. 3, 343. Carroll v. Lee, 3 Gill & Johns. 504. Beable v. Dodd, 1 Term Rep. 193. In this last case it was established at law, that a gift or devise to the sole and separate use of a feme sole, independent of the control and debts of a future husband, was valid, but the feme sole might, by a marriage settlement, in consideration of marriage, convey the estate to her husband. Being for her benefit, she might waive it.

trade and perform any labor or services on her own sole and separate account; and she may sue and be sued as a feme sole in all matters relating to her property.

Under a similar statute in Maine, it is held, that the husband cannot be charged with the price of goods purchased by the wife, in her separate business transactions, even though she devote a portion of the proceeds of such property to the support of their children. Colby v. Lamson, 39 Maine, 119. Oxnard v. Swanton, id. 125.

1 If the real estate of a wife, secured to her by an ante-nuptial settlement, be sold and converted into furniture, intended to be held in trust for her, such furniture cannot be reached by the creditors of the husband. Danforth v. Woods, 11 Paige, R. 9. Merritt v. Lyon, 3 Barb. S. C. Rep. 110. It is otherwise where the rents and profits of her real estate

stranger. The husband himself may be the trustee; and if property be settled to a married woman's separate use, and no trustee be appointed, the court of chancery will protect her interest therein against the creditors of the husband, and the husband may be considered as such trustee, notwithstanding *he *163 was not a party to the instrument under which the wife claims. (a) Where the husband stipulates, before marriage,

(a) Bennet v. Davis, 2 P. Wms. 316. More v. Freeman, Bunb. 205. Hamilton v. Bishop, 8 Yerger, 33. Abbott, Ch. J., 2 Carr. & Payne, 62. Newlands v. Paynter, 4 My. & Cr. Rep. 408. Picquet v. Swan, 4 Mason's Rep. 455. Escheator v. Smith, 4 M'Cord's Rep. 452. Clancy on the Rights of Married Women, pp. 15–30. (Clancy's Hus. & Wife, b. 3, c. 1.) Carroll v. Lee, 3 Gill & Johns. 504. Wallingsford v. Allen, 10 Peters's U. S. Rep. 583. Harkins v. Coalter, 2 Porter's Ala. Rep. 463. McKennan v. Phillips, 6 Wharton, 576. Trenton Banking Company v. Woodruff, 1 Green's N. J. Ch. Rep. 117. Shirley v. Shirley, 9 Paige's Rep. 363. Griffith v. Griffith, 5 B. Monroe, 115. The intention to create a trust estate for the wife must distinctly appear. Clancy, 262, 268. In Griffith v. Griffith it was held, that any words in giving personal estate to the wife, showing an intention to secure a use to the wife separately, would suffice, and that no particular form of expression was necessary-for her own proper use is sufficient. The wife may give or lend the income of her separate estate, if at her disposal, to her husband or to any other person, and he will be accountable

are so invested generally, and with no intention of keeping the furniture as her separate property. Shirley v. Shirley, 9 Paige, R. 363.

1 For forms of expression which have been held sufficient to create a separate use, see Woodrum v. Kirkpatrick, 2 Swan, 218. Fears v. Brooks, 12 Georg. 195. Strong v. Gregory, 19 Ala. 146. Petty v. Boothe, id. 633.

The words "for me and in my name," in a power of attorney given by the wife to the husband, do not reserve a separate interest in the money received under it. Turton v. Turton, 6 Maryl. 375. A bequest of a legacy to the wife "to hold to her and her heirs forever," does not exclude the husband's right to reduce it to possession. Wells v. Tyler, 5 Fost. 340. A devise to a wife "to be by her freely enjoyed to every intent and purpose as her own in every respect," held not to create a separate estate. Wilson v. Bailor, 3 Strobh. Eq. 258. And see Houston v. Embry, 1 Sneed, 480. Bryan v. Duncan, 11 Geo. 67. Goodrum v. Goodrum, 8 Ired. Eq. 313. Clevenstine's Appeal, 15 Penn. 495. Jenkins . McConico, 26 Ala. 213. Betts v. Betts, 18 Ala. 787. The mere appointment of a trustee does not create a separate interest in the wife. Williams v. Maull, 20 Ala. 721.

To give effect to the contract of a third person in favor of a wife, it is only necessary that there should be a clear assent of the husband thereto. So as between the husband and wife, a deposit by him in a bank to her name and credit, and the delivery of the deposit book to her, will enure to her benefit, as against the heirs and legatees of the husband. Fisk r. Cushman, 6 Cushing, R. 20. A delivery of the money or of the evidence of the deposit is indispensable to the validity of the gift. Brown v. Brown, 23 Barb. 565.

A promissory note given by a husband to his wife for the amount of checks received from her and drawn on her separate banking account, and upon moneys settled to her was held a good declaration of trust by the husband in favor of the wife. Murray v. Glasse, 21 E. L. & Eq. 51: And see Darkin v. Darkin, 23 id. 593.

separate use,