'.''m^ 
 

 (Snrtifll Slam ^rlyonl Slibrarg 
 
Cornell University Library 
 KF 505.T98 
 
 Commentaries on the law of infancy :incl 
 
 3 1924 018 825 947 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018825947 
 
COMMENTARIES 
 
 LAW OF II^FANCT, 
 
 GUARDIANSHIP AO CUSTODY OF INFANTS, 
 
 LAW OF COVEETURE, 
 
 EMBR&.CIKa 
 
 DOWER MARRIAGE AND DIVORCE, 
 
 STATTJTOET POLICr OF THE SEVERAL STATES 
 
 IN BESPBOT TO 
 
 HirSBAK"D AI^D WIFE. 
 
 By ransom H-XYLER, 
 
 COUKSELOB AT I>iW, 
 
 ALBANY: 
 
 WILLIAM GOULD & SON, 
 
 LAW BOOKSELLERS AND PUBLISHERS. 
 
 1868. 
 
M:SA- 
 
 f)H7f'>^ 
 
 Entered according to Act of Congress, in the year eigliteen hundred and slsty-eigbt, by 
 
 WILLIAM GOULD & SON, 
 
 In the Clerls's OJflce of the District Court of the Northern District of New York. 
 
 WEBD, PABSONS AWD COMPANT, 
 
 FKIKTSBS AN3> BTBBBOTYFBnS, 
 
 ALBANY, NEW TOBK. 
 
PREFACE. 
 
 This treatise upon the Law of Infancy and Coverture has been 
 prepared from a conviction that there was a necessity for such a 
 work. It is now over fifty years since Judge Keeve issued 
 his valuable treatise upon the domestic relations, and in the 
 interim very great changes have occurred in the rules and princi- 
 ples by which these relations are governed. Especially has the 
 reformer been at work with a relentless hand, in that branch of 
 jurisprudence which pertains to the rights and duties of married 
 women, and it is but recently that the subject has been system- 
 atized and wrought into permanent shape. Several English works, 
 and one or two American treatises, upon the law of husband and 
 wife, and marital rights, have been issued within the last fifty 
 years, and some within the last ten years ; but it is believed that 
 none of them occupy the entire field, or supersede the necessity of 
 a new work. 
 
 Infancy and coverture may be regarded as cognate subjects, and 
 it seems eminently proper that they be treated together. The com- 
 mon law disabilities of both infants and married women are in 
 many respects tpite similar, and it is convenient to be able to open 
 to the rules governing each, in the same volume. I have endeav- 
 ored, in this treatise, to bring out fally and plainly aU the rules 
 of the common law now in force upon these two subjects, and, at 
 the same time, to present in comprehensive form the changes and 
 modifications which have been made by statute. The policy of 
 the several states in respect to married women and marital rights 
 is particularly important and interesting, and this statutory policy 
 is fully treated in this work. I have sought to examine aU the 
 statutes upon the subject, and, so far as practicable, aU the reported 
 decisions of importance touching the question, and then to embody 
 the law in a clear and comprehensive statement, noting the 
 
PREFACE. 
 
 Statute and the authority upon which the- statement is mg.de. 
 Thus it has been ray design to make the work reliable, and to a 
 certain extent an authority, upon the subjects treated. It is not 
 the province of the text writer to make law, but rather to ascertain 
 and state what it is., "We have the lex non scripta — the unwritten 
 or common law ; and the lex scripta — the written or statute law ; 
 and the law as a whole is contained in the constitution and 
 statutes of the state, in books of reports and judicial decisions, and 
 in the treatises of learned sages- of the legal profession, preserved-' 
 and handed down to us from the highest antiquity. All these 
 different sources it has been my effort to examine, and bring 
 together all that relates to the subjects discussed. In. some 
 instances I have given the law in the language of the statutes or 
 judges, but more generally, I have given the substance of the 
 statute, and extracted the principles enunciated by the apiniona 
 pronounced, or settled by the judgment of the court. In all cases 
 where statutes have received judicial construction, I have adopted 
 the construction giyen by the court, although occasionally I have 
 ventured an opinion as to the scope or object of a. statute, but in 
 a way that the reader will readily discover that it is not the 
 language or determination of a judicial tribunal.,' I have sought to 
 collect, from the reported decisions, all the principles settled, and'the 
 rules adopted, in respecjt to the subjects treated; and,, while a great 
 number of cases are cited, the repetitiop of a doctrine enunciated 
 has been studiously avoided. Enough has been taken frona the 
 cases referred .to, to britig out clearly the doctrine inculcated, in 
 order that the text, might be relia.bip and free from. mistake, 
 Throughout liie.i^whple I have labored " to combine accuracy and 
 conciseness/' and to tbis end I have endeavored to verify by 
 personal examination all the ca^g referred to, though in some 
 instances I have beep obliged to depend upon the. .fidelity of 
 digests for the correctness, of my citations. 
 
 I have had liberty to use freely l;he American edition of Mr, 
 Bingham's. jwork on ,the,,"Law of Infancy. Sjiid Coverture," the 
 English editions of Mr. McPherson's treatise oninfancy, and Mr. 
 Bright's "Treatise op the Law of Husband and Wife, asEespects 
 Property," and hp,Ye appropriated ajl lihat I liought would be 
 practioajly useful. . Besides,,! have received .e^eptijil, aid from 
 Judge J?.eeye'B: ;wor^ , ftpon thp " Domestic Kelations," the last 
 edition: of wMcfei 48 jtill a very ivaliiable: book, J^r. Scribner'? 
 
treatise on the law of dower, Mr. Bishop's " Commentaries on the 
 Law of Marriage and Divorce," and Mr. Cord's " Treatise on the 
 Legal and Equitable Eights of Married Women ; " and especially 
 am I under obligations to these authors for the reference to cases, 
 many of which I have used. But a very important feature in this 
 treatise is, the elaborate exposition of the statutory policy and local 
 peculiarities of the several states, in respect to husband and wife 
 and marital rights. Lawyers are often consulted in respect to the 
 laws of neighboring states concerning dower, divorce, and the rights 
 of married women ; and it will be a convenience which the profes- 
 sion will appreciate, to have a volume at hand in which is embodied 
 the substance of 'the legislation upon these subjects, together with 
 the results of the litigation which a radical change in the law 
 always engenders. It will be observed that the statutes of many 
 of the states are somewhat similar, so that the decisions of the courts 
 under them have a common application, and may be used as an 
 atithority beyond the particular forum in which they were pro- 
 nounced. While I have made use of all the works within my 
 reach treating upon kindred subjects, for the purpose of ascertain- 
 ing the law, I have not followed the beaten track of any previous 
 author. The plan which I have adopted is my own, and I trust 
 that it will prove satisfactory and convenient. I flatter myself 
 that the work wiU be found useful to the profession, and should 
 it receive the approbation of the bar I. shall be more than gratified. 
 
TABLE OF CONTENTS. 
 
 PART I. 
 LAW OF INFANCY. 
 
 CHAPTER I. PAOI. 
 
 Who are InfE^nts— Qeneral disabilities Imposed upon Infiints— Cannot apply to 
 bodies politic— Illustrations, SS 
 
 CHAPTER II. 
 
 What acts of an Infiint are Absolutely Void— The Criterion or Test— Cases Illus- 
 trating the Principle, 41 
 
 CHAPTER III. 
 
 What acts of an Inflint are Voidable only— The Criterion or Test— Cases Illus- 
 trating the Principle— Tendency of Modern Decisions, 48 
 
 CHAPTER IV. 
 By Whom, and at What Time, Voidable Acts of Infiints are to be Avoided 59 
 
 CHAPTER V. 
 
 In trhat Manner Voidable acts of In&nts are to be Disaffirmed or Avoided— Efibct 
 of the Disaffirmance of Voidable acts of In&nts 70 
 
 CHAPTER VI. 
 
 Of the Confirmation of the Voidable acts of an Infant— How the same are Ratified— 
 What is a Sufficient Ratification „ 80 
 
 CHAPTER VII. 
 
 Of the Contracts of Infants for Necessaries— When and how an Infant inay Bind 
 Himself for Necessaries— When he may Bind others for Necessaries— What are 
 and what are not Necessaries- How the Question of Necessaries Is to bo tried— 
 The Burden of Proof, 99 
 
 CHAPTER VIII. 
 
 Of what In&ntsiare Capable— What is Binding on them besides their Contracts for 
 Necessaries— Offices— Marriage of In&nts— Homage — Wills of Personalty- Fines 
 and Uses— Iklarrlage Settlements, 12t 
 
 CHAPTER IX. 
 
 Of Infiints' Contracts which the Law requires— Enlistments in the Army and 
 Navy— Indentures of Apprenticeship— Execution of Trusts, 139 
 
 CHAPTER X. 
 
 How far the Law Protects an Infant against his Laches— Exceptions to the Rule in 
 his f^vor— How Alfected by the Statute of Limitations— Laws of the Several 
 States— Judgments and Decrees against Infants,: ; 1£9 
 
 CHAPTER XL 
 
 For what an In£int is ilable— When Liable Civilly- When Criminally— The Rule 
 in such cases „ , 174 
 
iv TABLE OF CONTENTS. 
 
 CHAPTER Xri. -BAQT^ 
 
 Action In favor of Infants— How Infants must sue— Actions against Infants—How 
 Infants must defend— The Privileges of Infants in the Courts— The general pro- 
 teotlon afforded Infants by Courts of Equity— Costs against Infants, i»i 
 
 CHAPTER XIII. 
 How Infancy Is tried-Burden of Proof-The Right of Parol Deniurrer-Day to show 
 cause against a Decree— Effect of the Judgment or Decree against an Infant, ^U) 
 
 CHAPTER xrv. 
 
 Of Infants In «cn(resamCT-e-When considered In esse— 'Writ de ventre inspiaienao— 
 Of post-testamentary Children— Of illegitimate Children, ^■a 
 
 CHAPTER XV. 
 
 Guardianship of Infents— Different kinds of Guardians— Guardians, how consti- 
 tuted or appointed— Powers and Duties of Guardians— Remedies against Guard- 
 lans— Jurisdiction of Courts over Guardians— Accounts by Guardians, and their 
 compensation, • ^' 
 
 CHAPTER XVI. 
 
 Custody of Infants— Who entitled to such Custody— Custody by Statute— Jurisdic- 
 tion of Courts in questions of Custody— Interference of Courts by Habeas Corpus- 
 Custody In cases of illegitimate Infants— Liberty of Choice by Infants— Custody 
 in cases of Guardianship ^^ 
 
 CHAPTER XVII. 
 
 Maintenance of Infants— When it is allowed, upon what principle, and from what 
 Funds— Sale of the real estate of Infants- The proceedings and disposition of the 
 proceeds- Specific performance of the contract of the ancestor- Conveyance by 
 an Infant trustee 288 
 
 PART II. 
 THE LAW OF COVERTURE. 
 
 CHAPTER XVIII. 
 
 The common law doctrine of coverture— The general disability of the wife— Mutual 
 disabilities Incident to the marriage union, 311 
 
 CHAPTER XIX. 
 
 Liabilities of the Husband by the Marriage— His liability during cohabitation — 
 His liability after separation- His liability for the torts and criminal acts of the 
 Wife 331 
 
 CHAPTER XX. 
 
 The Interest of the Husband In the Wife's personal property at common law— His 
 interest in her personal property in possession — His interest in personal estate 
 belonging to her as executrix or aamlnistratrix— His Interest in her personal 
 property unrecovered at the time of her death— His interest In her chattels real,.. S6t 
 
 CHAPTER XXI. 
 
 The Interest of the Husband In his Wife's choses In action In possession— Their 
 reduction into possession by the Husband— Effect of judgmenfe and decrees in 
 vesting them In Husband— Survivorship of Wife, how barred— Her legacies and 
 distributive shares— Her equities 373 
 
 CHAPTER XXII. 
 
 The Husband's Interest In his Wife's real estate at Common Law— His tenancy by 
 the curtesy and the Incidents respecting It— How curtesy may be defeated and 
 barred 393 
 
TABIiE OF CONTENTS. V 
 
 CHAPTER XXIII. PAOH. 
 
 The "Wife's Interest In her own property— Her Interest In her Husband's personal 
 estate after his decease— Her paraphernalia and pln-monesr— Her separate estate, 421 
 
 CHAPTER XXIV. 
 
 Ante-nuptial contracts and rules respecting them— Post-nuptial agreements and 
 settlements— Separate uses for /emes-cmert 452 
 
 CHAPTER XXV. 
 
 Acquisitions of the "Wife durlngCoverture— Transactions between Husband and 
 "Wife— Real estate conveyed to Husband and wife, how held— "Wife's real property, 
 how transferred .' ^ 482 
 
 CHAPTER XXVI. 
 
 The law of dower— The nature of dower and Its history— Different kinds of dower— 
 Requisites for dower— Marriage— Seisin of the Husband— Death of the Husband- 
 Issue not necessary 515 
 
 CHAPTER XXVII. 
 
 Of what property the wife Is dowable— Dower In lands— Dower in mines and ore- 
 beds— Partnership lands— Exchange of lands— Lands partitioned— Mortgaged 
 lands— Reversions and remainders— Trust estates— Equitable estates— Lands ap- 
 propriated to public uses— Summary, 630 
 
 CHAPTER XXVin. 
 
 How dower Is barred or prevented— Early devices to effect It— Wife's release— Con- 
 veyance by Husband oefore marriage— The "Wife's Jointure — Devise in Ueu of 
 dower— Sale on execution and for taxes— Divorce — Adultery of the "Wife— Articles 
 of separation— Estoppel of the "Wife,.. EB3 
 
 CHAPTER XXIX. 
 
 Assignment of dower— The "Widow's interest In the estate before assignment— Prin- 
 ciples and mode of admeasurement and its effect — the method of obtaining the 
 land assigned— The widow's estate acquired by the assignment, ., 581 
 
 CHAPTER XXX. 
 
 Dower In Equity— Jurisdiction of Equity for the recovery of Dower— Costs in pro- 
 ceedings for Dower — ^The Widow's power over the land assigned her — Her liability 
 for Waste— Her right to Emblements— Her liabilities on taking possession of the 
 estate 618 
 
 CHAPTER XXXL 
 
 The statutory peculiarities of the several States with respect to Husband and "Wife, 
 and the rights of Married Women— The Laws of New "lork- The act for the pro- 
 tection of Married Women— Rights and liabilities of Husband and Wife— Pre- 
 Bumptlons In favor of the Wife— The Husband's tenancy by curtesy, 635 
 
 CHAPTER XXXIL 
 
 The Statutory policy of New York respecting Husband and Wife— Decisions under 
 the present Statutes— Control of Married Women over their own property— Effect 
 of the marriage of the parties to a bond or promissory note under existing 
 Statutes— Liabilities of Married Women under the Statute— Consent of Husband 
 to his Wife's conveyance — Actions by and against Married Women— Charges 
 against her separate estate— Actions by her against her Husband— Trustees of 
 Married Women— Insurance of Husband's life by Wife— Summary 650 
 
 CHAPTER XXXIIL 
 Statutory policy of the New England States relating to Married Women and Mar- 
 ital righfe— Laws of Maine— Laws of New Hampshire— Laws of Vermont— Judi- 
 cial construction and decisions,... ; 673 
 
 CHAPTER XXXIV. 
 
 Statutory policy of the New England States relating to Married Women and Mar-, 
 ital rights— Laws of Massachusetts— Laws of Rhode Island— Laws of Connecticut— 
 Judicial construction and decisions, 693 
 
 CHAPTER XXXV. 
 The Statutory policy of the States of New Jersey, Pennsylvania, Delaware and 
 Maryland, m respect to Married Women and Marital rights— Laws of such States 
 respectively— Judicial construction and decisions, 712 
 
Vl TABLE OF CONTENTS. 
 
 CHAPTER XXXVI. PAGE. 
 
 The Statutory pecuUaritles of the WesWn States— Laws of Ohio, Michigan, Indiana, 
 Illinois, WlscoMsln, Minnesota, Iowa, Missouri, Kansas, Nevada, Nebraska, 
 Oregon and California, In respect to Married Women and Marital rlghts-Judioial 
 construction and decisions 734 
 
 CHAPTER XXXVII. 
 
 Statutory policy of the Southern States In respect to Husband and Wife and Marital 
 rights— Laws of Virginia, West Virginia, Kentucky, Tennessee, North Carolina, 
 South Carolina, Georgia, JTlorida, Alabama, Mississippi, Louisiana, Arkansas, 
 and Texas— Judicial construction and decisions 765 
 
 CHAPTER XXXVin. 
 
 The Institution of marriage— How marriage Is regarded In law— Different views 
 upon the subject— Solemnization of marriage 804 
 
 CHAPTER XXXIX. 
 
 The parties to a marriage— Parties must he able to contract — Impediments to 
 marriage — Want of age— Want of mental capacity— Impotence— Consanguinity 
 and affinity- Eace.and color and civil condition— Prior marriage,., 828 
 
 CHAPTER XL. 
 Parties to a marriage— They must be willing to contract— Duress— Fraud — Error- 
 Parties must contract In proper form— Void and voidable marriages — Imperfect 
 marriages, how nulllfled— Effect of the sentence of nullity, 815 
 
 CHAPTER XLL 
 
 The law of divorce— Meaning of the term— History of the regulations concerning 
 . divorce— Present opinions upon the subject of divorce— The policy fully vin- 
 dicated 867 
 
 CHAPTER XLIL 
 
 The different kinds of divorce— The divorce from the bonds of matrimony— Causes 
 for an absolute divorce— The divorce fl-om bed and board— Grounds of such 
 divorce, 882 
 
 CHAPTER XLIIL 
 
 The action for Divorce— The law of domicile— The defense to the action— Conni- 
 vance— Condonation— Recrimination— Wife's advances pending suit 895 
 
 CHAPTER XLIV. 
 
 The decree in a divorce suit— Alimony and the rules respecting it— The effects of 
 the decree of divorce— Validity of foreign divorces— Couoluslon, 913 
 
INDEX TO CASES CITED. 
 
 Abell V. 'Warren, 115 
 
 Abbey v. Dego, 642, 645 
 
 Abbott V. Hurd 450 
 
 Abbott V. Bagley .- 486 
 
 Abrams v. Whltmore, 431, 455 
 
 Ackerman v. Salmon, 659 
 
 Ackley v. Dygert 97 
 
 Ackley V. Hoskins, 155 
 
 Ackettv. Everett, 769 
 
 Adair v. Shaw, 335 
 
 Adair v. Lett 413 
 
 Adams V. Larendon, 385 
 
 Adams y. Dickson, 459 
 
 Adams v. HUl 543 
 
 Adams V. Barrow, 601 
 
 Adslt V. Adslt 568 
 
 Agar V. Fairfax 210 
 
 Agg V. Davies, 213 
 
 Ahrenfeldt V. Ahrenfeldt 275 
 
 Aiken v. Davis, 764 
 
 Albany Fire Ins. Co. v. Bay, 441, 506, 507 
 
 513 
 
 Albeev. Wyman 923 
 
 Albin V. Lord,. 682 
 
 Alderman v. Tirrell, 21)3 
 
 Aldrich v. Abrahams, 75 
 
 Aldrich v. Grimes, 82 
 
 Aldrldgev. Burllnson 738 
 
 Alexander v. Herlot, 82 
 
 Alexander v. Saulsbury 788 
 
 Alexander t. Alexander, 896 
 
 Allen V. Minor, 92 
 
 Allen V. Sayre 162, 171 
 
 AUen v. Coster, 292 
 
 Allen V. Papworth 453 
 
 Allen v. Rnmph 461 
 
 Allen V. McCoy 537, 538, 631 
 
 Allen V. Pray 567 
 
 Allen V. Hooper, 676 
 
 Allen V. Hightown, 793 
 
 Allison V. Taylor, 57 
 
 Alna V. Plummer, 347 
 
 Alsberry v. Hawkins 621, 623 
 
 Alsworth V. Cordts, 59 
 
 Alston V. Muraford, ...'. 265 
 
 Althouse V. Badde,....; 223 
 
 Alverson v. Jones 763, 764 
 
 Ambler V. Weston, 565 
 
 Ambler v. Norton, 570 
 
 American Home Missionary Society v. 
 
 Wadharas 456 
 
 Ames V.Foster 680, 703 
 
 Ames V. Norman, 781, 922 
 
 Amos V. Amos 912 
 
 Amperse v. Burdeno, 736 
 
 Anderson v. Darby, 243 
 
 Anderson V. Maddox, 266 
 
 Anderson v. Anderson, 456 
 
 Anderson's appeal 865 
 
 Anderson V. Dwyer, 627 
 
 Andover v. Merrimack County, 376 
 
 Andrews V. Cradook, 197 
 
 Andrews V. Partington, 290, 291 
 
 Andrews v. Hooper, 508 
 
 Andrews V. Jones, 780 
 
 AndrewSjinatter of, 
 
 Angel V. Felton, 
 
 Angel V. McLellan, 101, 
 
 Anlchinl t. Anlchinl, 
 
 Anonymous, 34, 190, . 194, 248, 251, 257, 
 318, 344, 366, m, 534, 828, 894, 904, 910, 
 
 Apple V. Allen, 
 
 Apthrop Y. Backus ; 
 
 Arnold's Admr, v. Yoorhles, 
 
 Arnold v. Hemstead 
 
 Arnold v. Bldgood 
 
 Asoough, case of, 
 
 Ashbaugh v. Ashbaugh, 
 
 Ashley v. Ashley 
 
 Ashton v. Langton, 
 
 Ashton V. McDougall,' 
 
 Astley V. Astley 
 
 Aston V. Aston, 
 
 Atherton's Admr. v. Molneston 
 
 Atkins V. Carwood 
 
 Atkins V. Yeomans, 585, 
 
 Atkinson v. Medford^.. 
 
 Attorney-General v. Pomfi:et, 
 
 Attorney-General v. La Roche, 
 
 Attorney-General v. Parerther 
 
 Atwood V. i^twood 551, 
 
 Aubln V. Daley, 
 
 Aughtle V. Aughtle 840, 862, 
 
 Aukerstein v. Clarke, 
 
 Aurand V. Schaffer, 
 
 Austin V. Charlestowu Female Semi- 
 nary 
 
 Austin V. Patton, 
 
 Avesonv. Kinoald 
 
 Axtell V. Axtell, 
 
 Ayer v. Chase,. 
 
 Ayerv. Spring 592,607, 
 
 Ayer v.Warr«n, 
 
 Ayman v. RolT, 
 
 Ayres v. Willis, 
 
 .486, 
 
 265 
 333 
 111 
 909 
 302 
 911 
 924 
 783 
 194 
 215 
 569 
 371 
 634 
 900 
 381 
 47 
 434 
 907 
 426 
 683 
 342 
 6D8 
 892 
 15S 
 
 591 
 531 
 
 863 
 383 
 729 
 
 57 
 85 
 324 
 568 
 156 
 610 
 676 
 126 
 668 
 
 Bablerv. La Blanc, 130 
 
 Bachelor v. Bachelor, 807 
 
 Bachman v. Chrisman 566, 726, 730 
 
 Bacon v. Taylor 261 
 
 Badger v. Phinney 77, 78, 180 
 
 Badgley v. Bruce, 624 
 
 Badgley v. Decker, 661 
 
 Baggettv. Meny, 420, 437 
 
 Bailey V. Rogers 265 
 
 Bailey V. Calcott 349 
 
 Bailey v. Duncan, 368, 394, 568 
 
 Bailey V. Boyce, 574 
 
 Bailey v. Pearson, 682 
 
 Bailey v. Fiske, 841 
 
 Baily V. Bamberger, 77 
 
 Bainbrldge v. Pickering, 101 
 
 Baird v. Bland, 462 
 
 Baker V. Hall 375 
 
 Baker v. Lovett 51, 55, 140 
 
 Balcer v. Lorlllard, 298 
 
 Baker v. Barney „ 351, 352, 486 
 
 Baker v. Newton 433, 440 
 
VUl 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Baker v. CliaBe ; 561, 576 
 
 Baker V. Keene 106, 109 
 
 Baker V. Hathaway 702 
 
 Baker V. Baker, 588, 591 
 
 Bale V. Coleman 469 
 
 Baldwin v. Klmmel 665 
 
 Ball V.Bali 243 
 
 Ballv. Coults, 137, 427 
 
 Ballantine v. iPoyner, 537, 629 
 
 Ballv. Mannin 828 
 
 Bamford v. Bamford 619, 636, 628 
 
 Bancroft v. White 613 
 
 Bancowv. Kuhn, 449 
 
 Banks v. Sutton 518, 547, 621 
 
 Banks V. Marksbury, 374 
 
 Barber V. Groves 206 
 
 Barber V. Harris, 394 
 
 Barber v. Barber, 489 
 
 Barber V. Root 922, 925 
 
 Barber V. Slade 690 
 
 Barbour v. Barbour, 585 
 
 Barent V. Kimmel, 854 
 
 Barker V. Klneman, 761 
 
 Barkins V. Giles 455 
 
 Barkshlre v. State r.....; 842 
 
 Barlow V. Bishop, 383 
 
 Barlow V. Wiley 207 
 
 Barnaby V. Barnaby,' '. 55, 82 
 
 Baruoord v. Kuhn, 718 
 
 Barnes V. CoSnaek, 323, 923 
 
 Barnes V. Gay, 550 
 
 Barnes v. Wyethe, 855 
 
 Barnet V. Barnet, 556, 582 
 
 Barnett V. Gering, 739 
 
 Barnett v. Liohtenstein, 443, 448, 654 
 
 Barney v. Frowner 601, 611 
 
 Baron V. Holt 783 
 
 Barret V. Commonwealth, 264, 266 
 
 Barrett V. Buxton, 830 
 
 Barrett v. Tewksbury, 512 
 
 Barrett V. Barrett, 455 
 
 Barrett v. Seward, 122 
 
 Barrerav. Alpuente 35 
 
 Barrerev. Barrere, 883 
 
 Barringer V. Stiver, 730 
 
 Bartholemew v. Finnemore, 76 
 
 Bartlett v. Bartlett 704 
 
 Bartlett V. GifTord, 451 
 
 Bartlett V. Gouge, 549 
 
 Bartlett V. Van Zandt 540 
 
 Bartlett v. Wells 53 
 
 Bartley V. Bichtmyer 264 
 
 Barton v. Taylor 264 
 
 Bastord V. Pearson^. 705 
 
 Bashaw v. State of Tennessee 861 
 
 Bashaw V. Chamberlain, 484, 487 
 
 Bass V. Cook 260 
 
 Bassettv. Bassett, 226 
 
 Batch v. Smith 151 
 
 Bates v. Bates, 545 
 
 Bates, case of, 547 
 
 Bates V. Dandy, 371 
 
 Bathnrstv. Murray, 137 
 
 Batren V. Earnly, 627 
 
 Baxter V. Barneld, 154 
 
 Baxter V. Brush, 176 
 
 Baxter v. Dear, 797, 803 
 
 Baxter V. Portsmouth, 828 
 
 Baylis v.Dinely, 85 
 
 Bay V. Gunn ,j. 119, 212 
 
 Beach V. Beach, 329 
 
 BeadUm V.Pratt, 484, 489 
 
 Beale V. Beale, 224 
 
 Beale V. Knowles, 675 
 
 Beale v. Starkey, 195 
 
 Beal V. Warren, 700 
 
 Beames V. Farley, 52 
 
 Beams V. Smith, 601 
 
 Bear's Administrator V. Bear, 717, 719 
 
 Beardsley V. The State, 190 
 
 Beard V.Knox 522,760, 762 
 
 Beard v. Webb, 316, 332, 486 
 
 Beard v. Beard, 491 
 
 Beardsleev. Beardslee...... 646, 578 
 
 Beaufort, Duke of, v. Berty ^ 
 
 Beaumont V. Miller, 7U 
 
 Beavers v. Smith ™» 
 
 Bedell v. Lewis •■■■•• ^.% 
 
 Bedell v. Bedell 8S3, 917 
 
 Bedell V. Constable vi"v;i- ??2 
 
 Beebe v. Young, 57, 115, 117 
 
 Beebe v. Bullitt, 172 
 
 Beebe V. Beebe,: 887,904,905, 908 
 
 Beecherv. Crouse, 263 
 
 Beeman V. Cowser "94 
 
 Bell V. Neeley, 577 
 
 Bell V. Mayor of New York 542 
 
 Bellows V. Cawley, 446 
 
 Belton V. Hodges, 39 
 
 Belton V. Briggs, 82 
 
 Bemis v. Call, 702 
 
 Benham V, Bishop 91, 44 
 
 Benham v. Badgley 862 
 
 Benjamin v. Benjamin, 340 
 
 Bennett V. Davies 47 
 
 Bennett V. Lee, 215, 222 
 
 Bennett V. Sadler 629 
 
 Bennett V. Cooks SOU 
 
 Bennett v. Smith, 719 
 
 Bennett V. Byrne 258, 2.59 
 
 Benson v. Benson, 432 
 
 Bently V. Cook 321 
 
 Bentley V. Griffin, 342 
 
 Benton v. Benton, 850 
 
 Beralles v. Bamsey, 114 
 
 Beresford v. Armagh 451 
 
 Berger v. Forsyth, 770, 777 
 
 Berthwiok v. Carruthers, 119 
 
 Berton v. Berton, 464 
 
 Bethra V. McCall, 194 
 
 Bettlev. Wilson 333 
 
 Betts V. Kimpton 367 
 
 Bevan v. Pope, 548 
 
 Bickley v. Bickley : 101 
 
 Bigelow V. Kinney, 68, 78, 82, 83, 84 
 
 Bigelow V. Grannis 87, 119, 212 
 
 Billing V. Pitcher, 356 
 
 Billings V. Taylor, 531 
 
 Billings V. Baker 649 
 
 Bingham V. Clanmorris, 217 
 
 Binion v. Stone 158 
 
 Bird V. Pegg, 52, 205 
 
 Bird V. Hulston, 328 
 
 Bird V. Jones 348, 356 
 
 Birkley v. Birkley 911 
 
 Birmingham v. Kirwan, 569, 572, 602 
 
 Bishop V. Bishop 890, 891 
 
 Blackburn v. Mackey 106, 109 
 
 Black V. Wilder 217 
 
 Black V. Bryan, 342 
 
 Black V. Galway, 720 
 
 Black V. Bryan 803 
 
 Blackborne v. Graves, 364 
 
 Blackburn v. Crawfords, 865 
 
 Blackman v. Blackman, 566 
 
 Blades v. Free 340,343, 341 
 
 Blair v. Harrison,...'. 584 
 
 Blair V. Davis, 770 
 
 Blake V. Leigh 2.")3 
 
 Blake V. BlaSe 753, 920 
 
 Blanchard V. Blood, 362, 4.55 
 
 Blanchet v. Dugat, 796 
 
 Blankeuship v. Street, 67 
 
 Bledsoe V. Britt, 250 
 
 Bleeker V. Bingham, ^0 
 
 Blocker v. Williams 4ffi 
 
 Blinkhorn v. Frost, 157 
 
 Bliss V. Selden 456 
 
 Blodget V. Brinsmaid, 839, 840 
 
 Blood V. Blood 562 
 
 Blood V. Harrington, 104 
 
 Bloom V. Burdick, 57, 206 
 
 Blow V. Maynard, 503 
 
 Blowers v. Sturtevant, 350, 856 
 
 Blunt V. Melcher 153, 155 
 
 I Blunt V. Bestland 378 
 
INDEX TO CASES CITED. 
 
 IX 
 
 PAGE. 
 
 Blnat V. Lee, 568 
 
 Bobo.v. FauseU, 52, 00 
 
 Bobb V, Paley, 304 
 
 Bocook V. Pavey, , 512 
 
 Boggers v. Boggers 911, 913 
 
 Bolster v. Cusbman 582 
 
 Bolton V. Ballard 542 
 
 Bolton V. Prentice, 846 
 
 Bond V. Simmons .-. 882 
 
 Bonier v. Mulllns 784 
 
 Bonslaugh V. Bonslaugb, 895 
 
 Boody V. McKinney 78, 82, 83, 87, 95 
 
 Bookler v. Bolivar 123 
 
 Boolihart, matter of, 301 
 
 Bool V. Mix 61, 66, 68, 506 
 
 Boose's appeal 726 
 
 Booth V. Lambert 689 
 
 Booth V. Pick, 216 
 
 Booth v. Sineath, 271 
 
 Boothby V. Vernon, 406 
 
 Borden t. Fitch 926, 928 
 
 Borland V. Nichols, 565, 574 
 
 Borlase v. Borlase, 831 
 
 Borstv. Corey,..:. 479 
 
 Borstv. Spelman, 384 
 
 Bostle V. OCove, „ 339 
 
 Boston T. Cummins, 785 
 
 Boston Bank V. Chamberlain, 55, 84 
 
 Bosthwlck V. Carmthers, 212, 213 
 
 Bostwick, matter of, 294 
 
 Bostwlck V. Atkins 97 
 
 Botsworth V. Botsworth, 852 
 
 Bouche V.Ryan 193, 208 
 
 Bouchettv. Clary, 118 
 
 Boughn V. Miller, 462 
 
 Bouugny V. Fortler, 792 
 
 Boulton V. Boulton, 913 
 
 Bowenv. Mattalre, 364 
 
 Bowen V. Evans, 622 
 
 Bowers v. Bowers 893 
 
 Bowers v. Tibbets, , 156 
 
 Bowie V. Berry, 562 
 
 Bowles V. Bingham, 233 
 
 Bowman v. Kelman 230 
 
 Bowser v. Blcketts 852 
 
 Boyden v. Boyden, 82 
 
 Boykrn V. Bain, 922 
 
 Boyle V. Webster, 62 
 
 Boyle V. Chambers, 754 
 
 Boynton v. Boyntou, 424, 669 
 
 Boynton v. Sawyer, , 662 
 
 Bradishv. Huse, , 346 
 
 Bradish V. Gibbs, 464, 495 
 
 Bradley v. Pratt, 115 
 
 Bradley V. Amidou, 199, 293 
 
 Bradley v. Hughes, 432 
 
 Bradley v.Westoott, ; 438 
 
 Bradshaw v. Bradshaw, 2Sr 
 
 Bradshaiw V. Heath 926, 928 
 
 Brady v. MoKlnney, 69 
 
 Brand v. .Webb, 144 
 
 Brasby v. Magrath, 290 
 
 Bratton v. Mitchell 596 
 
 Braxton v. Lee's Heirs, 221 
 
 Brayshaw V. Eaton, 102, 115, 119 
 
 Breckinridge's Heirs v.Ormsby, 69, 65 
 
 Breed v. Judd, 76 
 
 Brelnig v. Meitzler, 346, 36«, 357 
 
 Brettv. Brett 897 
 
 Brett V. Cumberland, 365 
 
 Bretton v. Williams, 55 
 
 Brick's estate, matter of, 251 
 
 Bridges v. MoKenna, 733 
 
 Briggsv. Morgan 833, 836 
 
 Bristowv. E^tman, 177 178 
 
 Broadstreet V. Broadstreet, 885 
 
 Brock V. Gaily 89 92 
 
 Brock V. Lindsey, 603 
 
 Brodie V. Brodle, 898 
 
 Brook, Ix)rd v. Lord Hertford 203 
 
 Brookings V. White, 676 
 
 Brooks V. Dalrymple 699 
 
 Brooks V. Scott Ill 
 
 PAGE. 
 
 Broom V. Broom, 532 
 
 Broughton V. Eandall 527 
 
 Broughton V. Erlngton 508 
 
 Brown v. Adams 680, 696 
 
 Brown v. Alden, 769 
 
 Brown v. Armlstead, 833 
 
 Brown V. Benson, _ 318 
 
 Brown V.Brown 325 
 
 Brown v. Casaraajor, 291 
 
 Brown v. Clark 431, 469 
 
 Brown V. Duncan, 611 
 
 Brown V. Durham, 176 
 
 Brown V. Ecter 795 
 
 Brown V. Fisher, 830 
 
 Brown V. Gale, 894 
 
 Brown V. Harris, 151 
 
 Brown v. Hermann, 664 
 
 Brown v. Hull, 192 
 
 Brown V. Lane, 383 
 
 Brown v.Laselle, 325, 334 
 
 Brown v. Like, 440 
 
 Brown V. MoCune, 98, 182 
 
 Brown v. McBae's Executors, 205 
 
 Brown V. Patton, 349 
 
 Brown V. Shafid, 511 
 
 Brown V. Westbrook, 896 
 
 Brown v. Williams, 574 
 
 Browriev. Gold 218 
 
 Browning V. Coppage, 472 
 
 Browning V. Reane, 827, 888, 830 
 
 Brownson V. Hull, 563 
 
 Bruce v. Thompson, 688 
 
 Bruere v. Bruere, 918 
 
 Brummet V. Weaver, 758 
 
 Brundage v. Poor : 610 
 
 Bruner's appeal, 789 
 
 Bryan v. Batcheller, 680 
 
 Bubbeus v. Hardy , 318 
 
 Buchanan v. Chamberlain, 687 
 
 Buchanan v. Deshon, 621, 523 
 
 Buchanan v. Sheffer, 408, 409, 410 
 
 Bucher v. Crouse, 200 
 
 Buck V. Gilson, .^688 
 
 Buckholts V. Buckholts 883 
 
 Bucklin vFond 163 
 
 Buckley V. Collier 319 
 
 Buckley V. WeUs, 646, 646 
 
 Buckley V. Buckley 414 
 
 Buckner v. Smyth, 332, 333 
 
 Buckrldge v. Ingram 530 
 
 Buckworthv. Buckworth 289 
 
 Buckworth v. Thlrkell, 401, 402, 404, 405 
 406, 407, 408, 409, 410, 411 
 
 Bugg V. Franklin 781 
 
 Buist V. Dawes, » 674 
 
 Buler V. Bullitt, 215 
 
 Bulerv. Young 103 
 
 BuU V. FoUet 156 
 
 Bnllard v. Bowers, 543 
 
 Bullard V. Briggs, 495 
 
 BuUardv. Russell 674 
 
 BuUookv. Finch, 602 
 
 Bullock V. Babeook 183 
 
 Bullpin V. Clarke 440 
 
 Burbank v. Day 592 
 
 Burchall V. BurchaU 434 
 
 BuroheUv. Clary, 103 
 
 Burd V. Dansdale 418 
 
 Burdet v. Hopegood, 224 
 
 Burdiok V. Briggs 676, 577, 922 
 
 Burge V. Jones 356 
 
 Burgess v. Burgess, 837 
 
 Burgess v. Wilson, 783 
 
 Burghart v. Augustein 102, 114, 117, 213 
 
 Burghart V. Hall, 102, 118 
 
 Burgin V. Forsythe, 777 
 
 Burke, matter of, 294 
 
 Burkee v. Barron, 685 
 
 Burks V. Shair 201 
 
 Burlac V. Cooke, 622 
 
 Burlen v. Shannon, 346, 348 
 
 Bnrley v.Bussel, St, 96, 181 
 
 Burnet V. Mann, 225 
 
INDEX TO CASES CITED, 
 
 FAGE. 
 
 Bumet V. Davis 417 
 
 Burnettv. Kluasten 380 
 
 Buruham v. Bennett, 378 
 
 Burr T. Burr 441, 489, 905, 917 
 
 Burr V. Sherwood 363, 378 
 
 Burridge v. Brady, 668 
 
 Burritt v. Blirritt, 279 
 
 Burrongh v. Moss 383 
 
 Bursou's appeal, 726 
 
 Bart V. Hurburt, 397, 922 
 
 Burt V. Manning, 119 
 
 Burtis V. Burtis 853, 893 
 
 Burton v. Burton, 337, 521 
 
 Burton v. Sles^ 784 
 
 Burton v. Todd, 627 
 
 Burton's appeal, 721 
 
 Bury, case of, 864 
 
 BusU v. White 271 
 
 Bush' V. Bradley 414 
 
 Buson V. Carlton, 61 
 
 Bustard v. Yates 203 
 
 Butler, ease of, 533 
 
 Butler V. Baker, _ 93 
 
 Butler V. Breek , „ 116, 332 
 
 Butler V. Butler, *... 887, 889, 893 
 
 Butler V. Gastrill, , 837, 849 
 
 Butler V. Wilson 469 
 
 Butterfleld v. Beall, 397 
 
 Bybeo v. Thorp, 261 
 
 Byrne v. Stewart 362 
 
 C. 
 
 Cabell V. Vaughan, 195 
 
 Calder v. BuU, 586 
 
 Caldwell v. Copeland 447 
 
 Caldwell v. Drake, 332 
 
 Caldwell V. Benfirew, 432, 690 
 
 Caldwell v. Savage, 446 
 
 Caldwell' V. Walters 719 
 
 Calhoun v. Baird, 159, 170 
 
 Calkins v. Long, 470, 475 
 
 Callahan v. Patterson, 800 
 
 Calmady V. Calmady, 489 
 
 Calvin, case of, 242 
 
 Camlens v. Walters, 193 
 
 Campbell, matter of, 594 
 
 Campbell v. Knights, 543, 614 
 
 Campbell V. Murphy 543, 550, 681 
 
 Campbell v. Stokes 117, 179 
 
 Campbell v. TauU, 511 
 
 Campbell v. Wilson, 60 
 
 Canjolle v. Ferrie, 825 
 
 Cannon v. Alsberry, 60, 199 
 
 Cannon v. Turner 7S8 
 
 Cannon v.TIlmer, 385 
 
 Capehart v. Hesey's Admrs., 264 
 
 CapUnger v. Stokes, 270, 365 
 
 Carey v..Patton 350, 352, 356 
 
 Carll V. Butman, ; 642 
 
 Carmlchael v. Carmichael 581 
 
 Carmlchaelv. Hughes 291 
 
 Carmlchael v. Wilson, 292 
 
 Carmon v. Turner,. 788 
 
 Carnealv. Sthreshley, 205 
 
 Carpenter v. Carpenter 912 
 
 Carpenter V. Dane, 328 
 
 Carpenter V. Schemerhorn, 316 
 
 Carpenter V. 'Whitman 285 
 
 Carr v. Carr, " 531 
 
 Carry. Williams l.'.'iii'.i'.i.Tsi's; 320 
 
 Carroll v. Cannott, 335 
 
 Oarson v. Merry, 471 
 
 Carter V. Anderson, '.'.|i| 451 
 
 Carter V. Carter 392 
 
 Carter v. Chapman, 758 
 
 Carter V. Howard, 342 
 
 Cartwrlghtv. Bates, 865 
 
 Cartwrlghtv. Cartwright ".'■.!'." 830 923 
 
 Cartwrlght V. HoUis 798 800 
 
 Caruthers y. Caruthers 136, 562, 887 
 
 Carver v. Mowatt ' '125 
 
 FAQE, 
 
 Gary v. Bertie — 215 
 
 Casey V. WIggin ■■■■■• 699 
 
 Cashorne v. Searfe 399, 417 
 
 Cass V. Martin, 542 
 
 Cass V. Thompson 533 
 
 Cassell V. Carroll 380 
 
 Cassel V. Cook 556 
 
 Casteel V. Casteel, 325 
 
 Caster V. Aides, 151 
 
 Castledlne V. Mundy 205 
 
 Castore v. Castore, 674 
 
 Cateret v. Pasohall, 368 
 
 Cathcart v. Robinson, 479 
 
 Catherwood v. Calson, 816 
 
 Catlin V. Ware 555, 610 
 
 Cato v. Easley, 205 
 
 Cauley v. Porter 394 
 
 Cawley v. Lawson 560 
 
 CecU V. Juxon 434, 484 
 
 Cecil V. Salsbury, 93, 121 
 
 Cera v. Taylor 385 
 
 Chalfantv. Monroe 172 
 
 Chalmers V. Storil 669 
 
 Chambers V. Caulflejd, 477 
 
 Chambers v. Chambers, 906 
 
 Chandler v. McKenley, 47 
 
 Chapln V. Hill 566 
 
 Chaplin v. Simmons, 336 
 
 Chaplin v. Sawyer, 692 
 
 Chapline V. Moore 270, 333 
 
 Chapman v. Armistead, 586 
 
 Chapman V. Briggs, 702 
 
 Chapman v. Sharp, 690 
 
 Chapman v.Shroeder, 537 
 
 Chapman v. Tibbitts 252 
 
 Chapman v. Williams, 704 
 
 Chapman v. Foster, 704 
 
 Chappie V. Cooper, 116 
 
 Charles v. Andrews, 568 
 
 Charles v. Boynton, 114 
 
 Charles v. John &39 
 
 Charrand v. Charrand, 923 
 
 Chase, matter of, 600 
 
 Chase V. Hazelton, 629 
 
 Chatham V. Chatham, 892 
 
 Cheek v. BeUows 348, 802 
 
 Cheekv. Waldman, 788 
 
 Cherry v. Clements, 782 
 
 Cheshire v. Barrett, 62 
 
 Chesslyn v. Smith 452 
 
 Chester V. Greer, 781 
 
 Chesterfield, Earl of V. Cromwell, 292 
 
 Chew V. Beall, 733 
 
 Chew V. Commissioners of Southwark, 414 
 
 Cholmely V. Cholmely 425 
 
 Cholmondeley v. CUnton 170 
 
 Christ's Hospital v. Budgln 378 
 
 Christian v. Bennet 82 
 
 Christianberry v. Ciiristlanberry, 907 
 
 Chubb V. Johnston, 35 
 
 Church V. Bull, 568. 673 
 
 City Council v. Roven 330 
 
 Claflln V. 'Van Wegener, 765 
 
 Claiborne v. Tanner, 802 
 
 Clapp V. Stoughton 468,884, SH 
 
 Clarges v. Albemarle, 426 
 
 Clarldge V. Evelyn 37, 175 
 
 Clark V. Burgh S71 
 
 Clark V. Clark, 266, 489, 677, 678, 649, 844, 859 
 898, 922, 924 
 
 Clark V. Field, 862, 858 
 
 Clark V. Gilmanton, 206 
 
 Clark V. Griffith 754 
 
 Clark V. Leslie, 116 
 
 Clark V. Lott 928 
 
 Clark V. Montgomery, 256, 294 
 
 Clark V. Muroe 627 
 
 Clark V. Redman, 556 
 
 Clark V. Underwood, 305 
 
 Clark V. 'Vlles 678 
 
 Clarke v. Blake, 224 
 
 aarke v. ReinSj.. '..'...'...'.'. '.'. 766 
 
 Clarkson v, De Peyster 262, 263 
 
INDEX TO CASES CITED. 
 
 XI 
 
 PAGE. 
 
 caayv. Irvine, 885 
 
 Clay V. White, 418 
 
 Clay V. Pennington, 292, 293 
 
 Clayton v. Wardell, 811, 869, 880 
 
 Clement V. Wafer 180 
 
 Clement v. MattUon 846, 855, 829, 898 
 
 Clements v. Williams, 106 
 
 Clifford V. Laton, 866 
 
 Clifton y. Halg 886, 386 
 
 Clough V. Lambert 478 
 
 Clough V. Elliott, 616 
 
 Clough V. Bond, 886 
 
 Clowes V. Brooks 115 
 
 Clowes V. Clowes 868, 910 
 
 Clowes V. Antwerp, 211 
 
 Coau V. Bowles 207 
 
 Coates V. WlUson 115 
 
 Coates V. Stevens, 490 
 
 Coates V. Cheever .581, 545, 599, 603, 609, 630 
 
 Cobb V. Cobb,. 893 
 
 Cochrane v, Llbby, 528, 5'?9 
 
 Cocksedge v. Oocksedge, 906 
 
 Cockshottv. Bennett, 54 
 
 Coffin V. Dunham, 357 
 
 Coffin V. Coffin, BOO 
 
 Cogswell V. Tibbetts, 579, 580 
 
 Colby V. Lamson, 677 
 
 Cole V. Fennel, 61, 71, 205 
 
 Cole V. Seeley „ 339 
 
 Cole V. Cole 521, 829, 912 
 
 Cole V. Varner, 450 
 
 Coleman v. Waples, 731 
 
 CoUard's Heirs v. Groom 205, 206, 215 
 
 Collier V. Collier 880 
 
 Collins V. Archer, 621 
 
 Collins V. Carman, 568 
 
 Collins V. Mitchell 349 
 
 Collins V. Westbury, 847 
 
 Colton V. Westcott .". 195 
 
 Colvln V. Colvin, 913 
 
 Colvlu V. Currier, 485, 646 
 
 Colvln V. Procurator-General 628 
 
 Colwell V. Carper 735 
 
 Combs V. Jackson 241, 242 
 
 Combs V. Young, : 516, 537 
 
 Comer V. Chamberlain, 415 
 
 Comets V. Ginger, 610 
 
 Comstock V. Carr, 303 
 
 Commonwealth v. Addlcks, 281 
 
 Commonwealth v. Anderson, 285 
 
 Commonwealth v. Balrd, 152 
 
 Commonwealth V. Boston 267 
 
 Commonwealth V. Briggs 280 
 
 Commonwealth v. Butler, 360 
 
 Commonwealth v. Callan, 143 
 
 Commonwealth v. Carnac, 143 
 
 Commonwealth v. Conrow 165 
 
 Commonwealth V. Cushlng 142 
 
 Commonwealth v. Fee, 286 
 
 Commonwealth v. Frost, 143 
 
 Commonwealth v. GUkeson, 283 
 
 Commonwealth v. Green, 188 
 
 Commonwealth V. Hammond, 286 
 
 Commonwealth y. Harrison, 142 
 
 Commonwealth V. Humperly, 154 
 
 Commonwealth v. Hunt, 844 
 
 Commonwealth V. Hutchlns, 39 
 
 Commonwealth v. Jamble, 142 
 
 Commonwealth v. Lanlgan, 189 
 
 Commonwealth v. Leftwlck, 839 
 
 Commonwealth v. Lewis 360 
 
 Commonwealth V. Manly, 376, 386 
 
 Commonwealth y. Mash, 844 
 
 Commonwealth v. Martin, 728 
 
 Commonwealth v. McKeagg, 187 
 
 Commonwealth y. Mente, 233 
 
 Commonwealth v. Murphy, 361 
 
 Commonwealth v. Murray, 142 
 
 Commonwealth v. Perryman 839 
 
 Commonwealth y. Preston, 266, 267 
 
 Commonwealth v. Striker, 233 
 
 Commonwealth y. Stump, 866 
 
 Commonwealth y. Trimmer, 360 
 
 PAGX, 
 
 Commonwealth v. Van Lear, 158 
 
 Commonwealth v. Wllbanks, 161 
 
 Commonwealth v. Williams, 699 
 
 Conanty. Conant, 888, 907 
 
 Conant v. Little, 683, 589, 016 
 
 Conanty. Raymond 156 
 
 Oongdon, matter of, 291 
 
 Congregational Church y. Morris, 534 
 
 Conklln v. Thomson 178 
 
 Connelly. Connell 666 
 
 Connelly v. Connelly, 935 
 
 Conner y. Blrdsall, 57 
 
 Conner v. Shepherd, 536, 600, 631 
 
 Connolly y. Smith 521 
 
 Connover v. Porter, 543 
 
 Conrad y. Shomo, 729 
 
 Conroe v. Blrdsall, 45, 53 
 
 Coustantine v. Van Winkle, 566 
 
 Contlne V. Phillips, 389 
 
 Conway v. Smith, 144, 146, 747 
 
 Cooky. Beaton, 101 
 
 Cooky. Grange, 325, 828 
 
 Cook y. Eawdon, 198 
 
 Cook V. Webb, 685 
 
 Cooke y. Woda, no 
 
 Cooke V. Wiggiws 411 
 
 Cooksonv. Cookson, 532 
 
 Coomes v. Elting 432 
 
 Coon v. Brook, 642 
 
 Cooper v. Forbes, 224 
 
 Cooper y. Kirkland, 218 
 
 Cooper y. Whitney 428.579, 623 
 
 Cootes V. Lambert 601 
 
 Copes y. Hutton 176 
 
 Copp y. Hersey, 568 
 
 Corbet v. Corbet, 562, 563 
 
 Corbet v. Poelnliz, _ 832, 331 
 
 Cordelly. Byder, 637 
 
 Corery v. The People 582 
 
 Corky. Cazenove 91 
 
 Cork & Bandon Ballway v. Cazenove,. 142 
 
 Corm V. Coburn, 115 
 
 Cornell v. Ham, 574 
 
 Cornwall y. Hoyt, 376 
 
 Cornwell v. Cornwell 255 
 
 Corpe v. Overton, 75 
 
 Corrie, case of, 35,242, 255 
 
 Cosgrovev. Cosgrove 225 
 
 Coster y. Clarke 549, 551 
 
 Coster V. Isaacs, 667 
 
 Cotton, case of, 161 
 
 Cottony. Westcott, 195 
 
 Coulter V. Holland 600 
 
 Coults y. Greeuhow, 462 
 
 Cowles y. Cowles, 243 
 
 Cowley V. Robertson, 332 
 
 Cowling v. Ely, 207 
 
 Cowman y. Hall, 548 
 
 Coxy. Coleman, 769 
 
 Cox V. Cox,. 919 
 
 Cox y. Hoffman, .'. 359 
 
 Cozens v. Long, 526 
 
 Cozzensv. Whitney, _ 710 
 
 Craig V. Paynes, 770 
 
 Craln V. Cavana 557, 678 
 
 Cram v. Kelly 705 
 
 Cranch V. Puryear 531 
 
 Crandall v. Slald, 208 
 
 Crane V. Crane, 507 
 
 Cranson v. Cranson 561 
 
 Crantzv. Gill 119 
 
 Crapster v. Griffith, 268 
 
 Crary y. Goodman, 669 
 
 Crawshay y. Maule, 532 
 
 Creary V. Cloud 608 
 
 Crenze v. Hunter, 243 
 
 Creslnger y. Welch 67 
 
 Crittenden y. Johnson, 640 
 
 Croadl y. Ingraham, 557, 683 
 
 Crocker V. Fox, 686 
 
 Crockett v. Drew, 70 
 
 Croft y. Arthur, 478 
 
 Croghan y. Liymgaton,., 223 
 
xu 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 CromweU v. Benjamin, 339 
 
 Cropsey V. Ogden, 844 
 
 Cropseyv. KfcKlnney 329,470, 844 
 
 Crosby V. Badger 453 
 
 Cross V. Beaver,.....' 293 
 
 Cross V. Brown ^ 283 
 
 CrostwaigM v. HulMnson 472 
 
 Crowley, case of, 282 
 
 Cruger V. Cruger 451 
 
 Cruikshank t. Gardner,., 207 
 
 Crump V. Oaks C91 
 
 Crump V. Morgan 811, 859, 860, 896 
 
 Cuckson V. Winter, 37 
 
 Cudwbrth v. Thompson, „ 295 
 
 Curaming's appeal, 717, 721 
 
 Cunnlngfiam v. Cunnlngliam 577 
 
 Cunningham v. Moody, 417 
 
 Curie, Auditor, case of, 12S 
 
 Curry V. Fulkinson, 383, 386 
 
 Curtin v. Patton 46, 54, 57, 92 
 
 Curtis V. Curtis 149, 618, 619, 620, 626, 627 
 
 Curtis V. Engel, 446 
 
 Curtiss V. Follett, 505 
 
 Cusack V. White 878 
 
 Cutler V. Furman, '. 254 
 
 CnttereU v. Sweetman, 861 
 
 D. 
 
 Dacey V. MoCarter 334 
 
 Dade y. Alexander, 362 
 
 Daggett y. Daggett, 919 
 
 Daigery. Daiger, 912 
 
 Dalley V. Dalley, 916 
 
 Dakin v. Demming, 270 
 
 Dakins v. Beresford, 428 
 
 Daley v. Talferry 243 
 
 Dalrymple v. Dalrymple, 130, 812, 817 
 
 Dalrymple v. Lamb, '. 198 
 
 Dalton V. CJibb, ; 102 
 
 DaJton V. State, 243 
 
 Damon v. Hall, „ 448 
 
 Dana V. Coombs, 84 
 
 Danforth V. Woods, 449 
 
 Danforth V. Smith 543 
 
 Daniel V. Bobinson, ».« 776 
 
 Daniel V. Flannigan 205 
 
 Daniel v. Leitch, ; 543 
 
 D'Aqullar V. D'AquUar, 885, 904 
 
 Darby v. Callaghan, 648, 667 
 
 D'Arcey v. Blake 547, 620, 621, 623 
 
 Darnell V. Adams, , 383 
 
 Dartmouth College v. Woodward, 811 
 
 Darwin v. Nicholson, 206 
 
 DashlU V. Collier B38 
 
 Davenport V. Wilson, 816 
 
 Davey v. Turner, 509 
 
 Davles V. Lookett, 201 
 
 Davles V. Turton 153 
 
 Davis V. Andrews, 691 
 
 Davis V. Clark 741 
 
 Davis V. Colman, 152 
 
 Davis V. Davis, 143 
 
 Davis V. Dickinson, 267 
 
 Davis V. Duke BU 
 
 Davis V. Herrick 677 
 
 Davis V. Logan, 548, 609 
 
 Davis V. Mason , 413 
 
 Davis V. The State, 360 
 
 ■ Davis V. Walker, 591 
 
 Davison, matter of, 293 
 
 Davison V. De Freest, 298, 306 
 
 Davol v. Howland, 676,584, 928 
 
 Day V. Burnham, 342 
 
 Day v. Cochran, 415 
 
 Day V. Everett 144 
 
 Day v. Padrone, 383 
 
 Dean V. Avelllng 838, 884 
 
 Dean v. Brown, 438 
 
 Dean V. Mitchell, 549 
 
 Dean v. Richmond, 488, B7S 
 
 Dean v. Blonmond 924 
 
 Dean v. White, 325 
 
 PAGE. 
 
 Deane v. Llttlefleld, 133 
 
 Dearborn V. Eastman, 61 
 
 Deason v. Boyd, 82, 87 
 
 DeBarantev. Gott 309, 454 
 
 Debbie V. Hutton, 472 
 
 De Blaqulere V. De Blaquiere 912, 920 
 
 Decouche v. Savetier, 453 
 
 Deer V. Hardenbergh 601 
 
 Deer v. Crawford, 509 
 
 Deer v. Lawshee,...' 715 
 
 Defriesv. Davis, 185 
 
 DeGaUlouv. L'Aigle 332 
 
 De Gray V. Richardson 399, 414 
 
 Delafleld v. Tanner, 186 
 
 Delano V. Blake, 81 
 
 De Leon v. Huguera 761 
 
 De Mannville V. DeMannvUle, 243, 254 
 
 Demarest v. Wyucoop 141, 163, 171, 441 
 
 Demlng V. Williams 495 
 
 Den V. Johnson, 661 
 
 Denv. Dod, , 586 
 
 Den V. Abingdon, 698 
 
 Denv. Barfleld, 783 
 
 Deunison v. Nigh 386 
 
 Dennys V. Sargeant 357 
 
 Dent v. Bennett 269 
 
 Denton V. Nanny,..: 542, 634 
 
 DePeysterv. Clarkson, 203 
 
 De Roo v. Foster, 63 
 
 Derrick v. Kenedy 74 
 
 Derush V. Brown 548 
 
 Devanbagh v. Devanbagh, 835, 836 
 
 Devallv. DevaU, 878 
 
 Devluv. Devin, 669 
 
 Dlas V. Glover 394, 600 
 
 Dibble V. Clapp, 538 
 
 Dickenson V. Bllssett, 830 
 
 Dickenson V. Codewlse, 500 
 
 Dickerman v. Dicker, 923 
 
 Dickinson v. Davis 683 
 
 Dickinson v. Dickinson, 879 
 
 Dickson v. Dickson, 809 
 
 Dickson V. Robinson, 568 
 
 Dilk v. Klngsley, 115 
 
 Dillaye v. Parks, 665 
 
 Dillon V. Leman 161 
 
 Dltson V. Dltson, 810, 897 
 
 Dixon V. Bell 185 
 
 Dixon V. Dixon, 388 
 
 Dixon V. Hurrell, 358 
 
 Dobson V. Butler 676, 923 
 
 Dodge V. Ayerigg, 555 
 
 Dodge V. Dodge,. 667, B72 
 
 Dodge V. Sllvertnorn 146 
 
 Dodson V. Hay 417 
 
 Doe V. Brown, 733 
 
 Doe V.Clark 834, 238 
 
 Doe V. Gwlnwell, 613 
 
 Doe V. Howland, BOO, 505 
 
 Doev.Hutton 401 
 
 Doev. Jones, 629 
 
 Doev.Nutt 586, 590 
 
 Doev. Polyrean, 369 
 
 Doe V. Staples, 434 
 
 Doe V. Thomas, 199 
 
 Doe V. Thorley, 438 
 
 Doe V. Wilklns 370 
 
 Dolev. Irish 625 
 
 Dolf V. Bassett. B4S, 609 
 
 Dominiok V. Michael 73, 317 
 
 Dominiquer v. Lee, 791 
 
 Donnelly V. Smith, 709 
 
 Donnington V, Mitchell, 366 
 
 Doran V. Dempsey, 265 
 
 Dorchester v. Coventry, 538, 609 
 
 Dorly V. Boucher, 115 
 
 Dormer, case of, 239 
 
 Dormer V. Foitesoue 801, 202, 619, 620 
 
 Dorseyv.Dorsey, 897, 929 
 
 Dorsey v. Sheppard 252 
 
 Douglas V. McCoy 658, 585 
 
 Douglass T. Wiggins, 629 
 
 Dowv. Clark 185 
 
INDEX TO CASES CITED, 
 
 XllI 
 
 FAQE. 
 
 Dowev. Smith SE8 
 
 Dowellv. Dew, 484 
 
 Dowell V. Earle, 881 
 
 Downing v. Seymour, 871 
 
 Doyle, matter of, 886 
 
 Doyle V. Doyle,* 887 
 
 Dragov. Moses, 194 
 
 Drake, Lessee of, v. Ramsey 67 
 
 Draper v. Baker, 543 
 
 Draper t. Jackson, 376, 377, 884 
 
 Draper v. Stouveuel, B44 
 
 Druoe t. Dennlson, B69 
 
 Drue Drurie, case of, 238 
 
 Drue V. Thorn, 333 
 
 Drury v. Drury, 133, 134, 562, 565 
 
 Dublin, eto^ Ballway Co., v. Black, 97 
 
 Dubois V. Wheddeu, 52, 103 
 
 Dubs V. Dubs 416, 730 
 
 Dudley v. Dudley, 631 
 
 Dudley v. Grayson 623 
 
 Duer V. Boyer 889 
 
 Duffy V. The Ins. Co 495 
 
 Dulty V. Bromfleld 79 
 
 Dumaiesly v. Fishly...... 823 
 
 Dummer V. Pitcher, S77, 491 
 
 Duncan v. Duncan, 566, 9B7 
 
 Duncan v. Patty's heirs 263 
 
 Duncan V. BosoUe, .\ 752 
 
 Dundas V. Hitchcock,.., ; 555 
 
 Dunham v. Osborn 546 
 
 Dunnahoe v. Williams 794 
 
 Dunn V. Dunn 913, 938 
 
 Dunscombe v. Tickridge 102 
 
 Dunseth v. Bank of United States, 538, 611 
 
 Duntz V. Levitt 807, 808, 898 
 
 Dupree v. McDonald, 463 
 
 Durando v. Durando, 527, 546 
 
 Durant v. Durant, 905 
 
 Durant v. Bitchie, 507, 556 
 
 Duress V. Horneffer, 746 
 
 Durham V. Angler, 536,558 
 
 Durhelt V. EllsweU, 359 
 
 Dumford v. Lane 136 
 
 Dutch V. Manning,... 501 
 
 Dutton v.Dutton,. 476 
 
 DuvaU V. Farmers' Bank, 389 
 
 Dye V. Dye 761 
 
 Dyer v. Bean 793 
 
 Dyer V. Clark, 532 
 
 Dyer, matter of, 258, 265 
 
 Dyke v. EendaU, 568 
 
 Dysart v. Dysart, 910 
 
 Badesv. Booth 
 
 Eagle Fire Co. v. Lent, 51, 55, 71, 
 
 Eagles V. Eagles 
 
 EaiieT. Earle 
 
 Earle t. Feale, 115, 
 
 Earle V. Reed, 
 
 Earle v. Wilson, 
 
 Earl of Bucklnghamstilre t. Drury 
 
 Early v. Sherwood, 362, 
 
 EatauT. Simons, 
 
 Eaton V. Nason, 
 
 Eberle v. Fisher, 
 
 Eccleston v. Berkley, 
 
 Eoker's Admr. v. Martin, 
 
 Eckert V. Lewis, 
 
 EclrfordT. DeKay 
 
 Eckstein v. Pranks, 
 
 Edgerton V. Jones, 
 
 Bdgerton v. Wolf, 78, 
 
 Edlestone y. Collins, 
 
 Edmonson V. Welsh, 
 
 Edmonson r. Montague, 
 
 Edrington v. Harper 
 
 Edrington v. Mayfleld 798, 799, 
 
 Edson V. Davis, 
 
 Edsonv. Hayden 
 
 Edwards V. Davies, 107, 
 
 Edwards V. Green, '. 
 
 PAGE, 
 
 Edwards V. Hlggins, 101 
 
 Edwards V. James 709 
 
 Edwards V. Morgan, 566 
 
 Edwards v. Stevens 698 
 
 Edwards V. Towels 356 
 
 Elav.Card 508,556, 557 
 
 Eldershaw, case of, 189 
 
 Eldredge v. Porresial 547 
 
 Eldridge V. Lippiucott 242 
 
 Eldrldgev. Preble 678 
 
 Ellen V. Topp, 154 
 
 ElUcottv Moshire, 590, 605 
 
 Elllcott V; Walsh 662 
 
 Elliott V. Bentley, 747 
 
 Elliott V.Collins, 868 
 
 Elliott v.Gurr, 863,863 
 
 EUiottv.Hern 140 
 
 Elliott V. Lewis, 836 
 
 Elliott V. Piersol, 315, 512, B56 
 
 Elliott's Executor's appeal 735 
 
 Ellis V. Ellis 115 
 
 Ellison, matter of, 309 
 
 Ellison V. Ellison, 464 
 
 Ellison V. Elwin, 381 
 
 Ellsworth*-. Cook, 419 
 
 Elms V. Hughes, 330, 495 
 
 Elton V. Sheppard 440 
 
 Elwell V. Martin, 185 
 
 Elwes V. Elwes, 904 
 
 Elwood V. Klock 551 
 
 Elwood V. Myers Ml 
 
 Ely V. Lessler, 305 
 
 Blyot'scase, ; 830 
 
 Bmbler V. Ellis 606 
 
 Emerson v. Harris, B63 
 
 Emerson v. Clayton, 743 
 
 Emery V. Neighbor, 3B3 
 
 Emery v. Vanslckel 715 
 
 Emmett v. Norton, 346 
 
 Englefleld, case of,. 343 
 
 English V. Wright 614 
 
 Errat v.Barlow,.... S90 
 
 Essex V. Atkins 439 
 
 Essex V. Essex, 836 
 
 Etheridge v. Malempre, 534 
 
 Etheringtou v. Parrot, 839, 340, 841, 348, 844 
 
 349 
 
 Eubanks V, Peak:, 82 
 
 Evans V. Commonwealth, 63 
 
 Evans V. Dravo, 498 
 
 Evans v. Evans 410, 468, 696, 886 
 
 Evans V. Fisher, 346 
 
 Evans v. Kingsbury, 510 
 
 Evans V. Morgan, 865 
 
 Evans V. Plerson, 754 
 
 Evansv.Webb B66 
 
 Everaon V. Carpenter, 47 
 
 Evertson v. Tappan, 172, 263 
 
 Evelyn V. Chichester, 176 
 
 Ewers v. Hutton,., 353 
 
 Ewlng V.Gray, 739 
 
 Byre v. Coward 836 
 
 Eyrev. Shaflsbury,., 215,318,353 
 
 F. 
 
 Faber V. Colden, 389 
 
 Fahie v. Pressey 758 
 
 Falrchild v. Chistalleaux, ; . . . BOS 
 
 Falmouth Bridge Co. V. Tibbatts 778 
 
 Farnham v. Atkins, 61 
 
 Farusworth v. Ollphant 366 
 
 Parr V. Sumner, 69, 77 
 
 Parr V. Sherman, 736 
 
 Farran V. Sherwood 174 
 
 Farwellv. Farwell,. 913 
 
 Fearing V. Clauson, 205, 
 
 Fellows V. Fellows, 888, 897 
 
 Fellows V. Nlvers, 198, 194 
 
 Fennerv. Lewis, SSI 
 
 Fenny v. Durant, B98 
 
 Fenton V. White, 108 
 
 Ferguson V. Tucker, 166 
 
 Ferlatv. Gogon 832, 851 
 
XIV 
 
 INDEX TO OASES CITED. 
 
 PAGE, 
 
 Fernsleev. Meyer, 363 
 
 FerrersT. Ferrers, 627 
 
 Ferrle V. The Publlo Administrator,... 819 
 
 Fettlplacev. Gorges , 433 
 
 Flckfe V. Fickle 901 
 
 FleldT. Law 342 
 
 Field V. Moore, 134, 137 
 
 Field V. Schleffelin, 861 
 
 Field V.Sims 476 
 
 Field T. Williamson 174, 203, 822 
 
 Flelderv. Hanger; 366 
 
 FlnohT.Flnch 110 
 
 Finch, matter of, 306 
 
 Findlay V. Smith 537, 629 
 
 Flnley V. Finley, 887 
 
 Finn V. Sleight 614 
 
 Firestone V. Firestone, 649, B62, 576 
 
 Fishv. Ferris, 179 
 
 Flshv. MUler, 270 
 
 Fishback V. Young; 801 
 
 Fisher T. Boody, 856 
 
 Fisher V. Fisher. 632 
 
 Fishery. Jewett, 52 
 
 Fishli V. FlsUU '. 512 
 
 Flsk T. Fastman, 547 
 
 FiskT.Stubbs 511, 788 
 
 Fitch T. Braiuard 441 
 
 Fitch T. Colheal, 450 
 
 Fitch V. Fitch 194 
 
 Fltts T. Fltts, 800 
 
 Fitlsv.Hall 78, 181 
 
 Fitzerv. Fitzer, 743 
 
 Fitzgerald v. Villiers, 193 
 
 Fltznugh V. Dennlngton 31 
 
 Flavin T. Ventrice, 407 
 
 Fleming v. Griswold 164, 170 
 
 Fldmlngton V. Smlthers, 200 
 
 Fleury V. Baker, 385 
 
 Flick V. Devins, 718 
 
 Flightv. BoUand 176 
 
 Florentine V. Wilson 353, 470 
 
 Fluck V. ToUemafihe, 106 
 
 Flynnv. Coffee, 615 
 
 FoUetv. Tyrer 417 
 
 Fonda V. van Home,... 43, 47, 241, 242, 848 
 
 Forbes V. Phlpps, .; 387 
 
 Fordv.Ford 580,865 
 
 Ford V. Fothergill 101, 117 
 
 Fordv. Phillips 87, 90 
 
 Foreman V. Marsh, 306 
 
 Forester, case of, 60 
 
 Forsterv. Forster, 901, 907 
 
 Forsyth v. Hastings 90 
 
 Forrest, case of, 458 
 
 Forrest V. Forrest, 574, 921 
 
 Forrest v. Trammel!, 615 
 
 Forrestv. Warrington 378 
 
 Foshay V. Ferguson 847 
 
 Fossv. Crisp, 419 
 
 Foster V.Alston 281 
 
 Foster v. Cook, 569 
 
 Foster V. Dwlnel, 614 
 
 Foster v. Foster, 456 
 
 Foster v. Means, 828 
 
 Fosterv. Mott, 856, 258 
 
 Fosterv. Stewart 156 
 
 Fowler v. Dyneley 344 
 
 Fowler V. Fowler, 426 
 
 Fowler V. Grlffln, 616 
 
 Fowler v. HoUenbeck, 152 
 
 Fowler V. Shearer, 6Q7, 556 
 
 Fowler V. Trebeln, 329, 735 
 
 Fox V.Cosby, 71, 205 
 
 Foxy. Duff, 643, 667 
 
 Fdxv. Fletcher, 501 
 
 Fox V. Jones 766 
 
 Fox V. Scott 456 
 
 Fox wist y. Tremalue, 194, 195 
 
 Foy V. Foy, 907 
 
 Francestown V. Deerlng,.. 683 
 
 Francis v. Felmet, 120 
 
 Francis V. Garrard, 609 
 
 Francis V. White, 834 
 
 PAOi;. 
 
 Francis V. Wigsell, .-■. 445 
 
 Frank V. Frank, 56ii, 571 
 
 Franklin V. Coffee |^ 
 
 Frarie^ appeal, 367 
 
 Frary v. Booth, 687 
 
 Fraser V. Marsh, 207 
 
 Frasier y. Massey, 63 
 
 Frazierv. Rowan, 153 
 
 Frazier V. Browulow, - 448 
 
 Freemanv. HiU, 461 
 
 Freestone v. Butcher, 340, 359 
 
 French v. Davis, 569 
 
 French y. Pratt, 605 
 
 French V. Crosby 595 
 
 Fretwellv. Vann, 152 
 
 Fridge V. The State 43 
 
 Frith v. Caldwell 482 
 
 Frosty. Deerlng, ; 555 
 
 Fryv. Fry, 392, 924 
 
 Fry V. Smith 523 
 
 Fry V. Merchants' Ins. Co., 543 
 
 Fuguav. Hunt 263 
 
 Fulbrlghtv. Carmefleld, 194 
 
 Fullerv. Wing 267 
 
 FuUer V. Yates, , 567, 574 
 
 PuUertony. Ja«kson 253 
 
 FuUerton V. Doyle 795 
 
 FuUwood. case of, 627 
 
 Fulton V. Rosevelt, 197, 198, 201 
 
 Fulton y. Fulton, 574 
 
 Fultzv. Fox, 771 
 
 Fnrman v. Furman, 897 
 
 Purmanv. Clark, 543 
 
 Furnis V. Smith 177, 178 
 
 Futov. Brown 242 
 
 e. 
 
 Gage V. Acton, 464 
 
 Gagev.Reed, 3.33 
 
 Gage V. Dauchy, 450, 645 
 
 Gage V.Ward, 543 
 
 Gaines V. Poor, 428, 666 
 
 Galbralth v. Green, 526 
 
 Galbralthv. Gedge, 532 
 
 Galev.Edsall 493 
 
 Gale v. Norris 214 
 
 Galev. Wells, 270 
 
 Galleyo V. Galleyo 386 
 
 Galliano v. Lane, 505 
 
 Galloway V. Holmes, 859 
 
 Gaiter V. Hancock, 5BS 
 
 Garaber v. Gamber 718 
 
 Gamblev. Nalne 488 
 
 Gammon V. Freeman, 614 
 
 Gardner v. Bobertson, 221 
 
 Gardnerv. Gardner, 442 
 
 Gardner V. Green 614 
 
 Garet V. B'rank, 36 
 
 Garforthv. Bradley 385 
 
 Garland v. Loving 299 
 
 Garlick V. Strong, 479, 492 
 
 Garnerv. Garner, 4te 
 
 Garvin v. Boston, 140 
 
 Garrv.Drake 201 
 
 Gashorne V. Purcell 735 
 
 Gaters V. Madeley, 874,876, 383 
 
 Gathlngs V. Williams, 864 
 
 Gaultv. Saffln, 729 
 
 Gaunt V. Wainman, 613 
 
 Ganton V. Bates, 609 
 
 Gaw V. Hufllnan, 674 
 
 Gawder V. Draper 475 
 
 Gay V. Ballon, 87, 105 
 
 Gedges V. West, , 778 
 
 Geerv. Hovey 180 
 
 Gee V. Thompson, 577, 924 
 
 Gelserv. Gelser,. 560 
 
 Genet v. Talmadge 261 
 
 George v. Bank of England, 491 
 
 George v. Bussing, 775 
 
 George V. Ransom, 763 
 
 George v.Spencer, 495 
 
 Gere v. Snmmersall, 487 
 
INDEX TO CASES CITED. 
 
 XV 
 
 PAGE. 
 
 Gere v. Perdue, 687 
 
 Germond V. Jones, 648 
 
 Gerret v. Talmadge 842, 343 
 
 Gerrlsh V. Mason 708 
 
 Glbbs V. Merrill, 48 
 
 Gibson V. Crehore, 643, 658 
 
 Gibson V. Gibson. SM, 464, 557, 670, 674 
 
 Glbsou V. Taylor, 170 
 
 Gibson V.Todd 378, 495 
 
 Gllcbrlstv. Brloe 511, 783 
 
 GUesv. Gullin 553 
 
 Giles V. Moore, 657 
 
 GIU v.Read, 348,851, 858 
 
 GUlett V. Stanley 51,505, 606 
 
 GUlis V. Brown, 419 
 
 GUlowv.LlUle 62 
 
 Gilmerv. Ware 859 
 
 Glvenv.Marr, 577, 922 
 
 Givens v. McCalmont, 629 
 
 Glalster V. Hewes, 490 
 
 Glann v. Younglove, 497, 665 
 
 Glase T. Bray ton, 172 
 
 Glasgow T. Sands, 874 
 
 Gleasou V. Gleason, 891 
 
 GUdden V. Taylor 494 
 
 GUdden t. Stmple, 505, 510, 727 
 
 GlOTerT. Ott 116, 117 
 
 Glover V. Glover 363 
 
 Glover v. Proprietors of Drury Lane, . . 319 
 
 Glover v. Alcott, , 
 
 Glyde v. Keistler 
 
 Godfrey V. The State 
 
 Goddard v. Johnson, 
 
 Godierv. Ashton, 
 
 Goeletv. GSorl, 814, 
 
 Goffv. Nntall 
 
 Goldv. Rutland 
 
 Gomer v. Tradesmen's Bank 
 
 Gooch V. Atkins 
 
 Goodall V. Thurman, 
 
 Goodallv. Goodall, 
 
 Goodburn V. Stevens, 
 
 Goode V. Goode, 
 
 Goodell V. Jackson, 
 
 Goodenough v. Goodenough,.. 405, 406, 
 
 Goodsell V. Myers, 45, 52, 87, 
 
 Goodtitle v. Newman, 236, 
 
 Goodwin V. Goodwin, 
 
 Goodwin V. Wlnsmore, 
 
 Goodwyn v. Lyster, 
 
 Goodyear V. Eumbaugh, 717, 721, 
 
 Gordon v. Gordon _. 
 
 Gordon V. Haywood, 
 
 Gordon V. Potter 107, 
 
 Gordon v. Stevens, 655, 
 
 Gore V. Knight, ; 
 
 Gore V. Brazier 538, 
 
 Gore V. Gather 
 
 Gore V. Gibson, 
 
 Gorham v. Purcell, ^v. • 
 
 Goss V. Cahill, 
 
 Gtouldv. Gould 313, 668, 669, 
 
 Gould V. Webster, 
 
 Goulding v. Davidson 
 
 Govenor v. Rector, 
 
 Go vln V. Hancock, 
 
 Gracev.Hale, 78, 115, 
 
 Grace V. Wilbur, 
 
 Graecen v. Graecen, 
 
 Graham. V. Davidson, 
 
 Graham V. Dnnlgan, 
 
 Graham V. Graham, 
 
 Graham V. Londonderry 433, 
 
 Graham v. Meek, 
 
 Graham V. Vanwyck 
 
 Graley V. Graley 
 
 Granby v. Allen, 
 
 Grant, matter of, 319, 363, 373, 
 
 Grant V. Perham 
 
 Grant V. Whltaker, 
 
 Grate V. Phillips 
 
 Graves v. Graves, 
 
 PAGE 
 
 Graves v. Downey, '. 836 
 
 Grayv.Brown, 287 
 
 Grayv. Gray, 891 
 
 Grayv. Llsslngton, 78 
 
 Grayv. McCune 515 
 
 Grayv. Thacher, 333 
 
 Grayson V. Monoore, 634 
 
 Green V. Branton, 783 
 
 Green v. Burke 38 
 
 Greenv. Burke, 179 
 
 Green V. Greenbank 178 
 
 Greenv. Liter, 413 
 
 Greenv. Lyndes, 748 
 
 Green v. Putnam, 546, 584 
 
 Green v. Sperry, 178 
 
 Green v. Tennant, 638 
 
 Greene v. Greene, 532, 551, 675 
 
 Greenleaf V. HiU, 678 
 
 Greenwood v. Curtis 840 
 
 Gree V. Sankston, 524 
 
 Gregory V. Gregory, 493 
 
 Gregory v. Lockyer, 343 
 
 Gregory V. Molesworth, 203 
 
 Gregory V. Paul, 486 
 
 Gregory v. Pierce, 486 
 
 Grey v. Grey, 157 
 
 Grey v. Cooper, , 62 
 
 Griffln V. Griffln, 161 
 
 Griffith v. Clarke 316, 733 
 
 Griggs V. Smith 615 
 
 Grlgley V. Scott 439 
 
 Grimani v. Draper, 831 
 
 Grindell V. Godman, 354 
 
 Griswold v. Penniman, 363, 386 
 
 Grls wold v. Pennington, 388 
 
 Gross V. Ransom 450 
 
 Grove V. Hook 571 
 
 Grove v.Nevil 182 
 
 Grove v. Tumbro, 510 
 
 Guild V. Peck 441 
 
 GuUyv.Ray 773 
 
 GuUyv.HulI 790 
 
 Guthv. Guth 475 
 
 Guthrie v. Murphy, 101, 116 
 
 Guttman V. Scannell 763, 764 
 
 Gutzwlller v.Lackman, 859 
 
 Guy V.Guy 201 
 
 Gwynne V. Cincinnati, 552 
 
 Gylbert V. Fletcher 153 
 
 H. 
 
 Hackman v. Ferry, 325 
 
 Hadley V. Brown 756 
 
 HaUeev. LilUe 185, 212 
 
 Haines v. Tenant, 103 
 
 Haines, Adi&r. v. Tarrant, 115 
 
 Haines v. Gardner, 613 
 
 Haines V. Ellis, 71B 
 
 Hale V. Gerrlsh 87, 91 
 
 Halev.Hale, 224 
 
 Halev. James, 609,627 
 
 Hale V. Plummer, 532 
 
 Hall V. Bumstead 164, 172 
 
 Hallv. Gardner 152 
 
 Hall V.Hall 260,355,569 
 
 Hall V. Hollander 300 
 
 Hall V. Hugonln, 381 
 
 Hall V.Jones 257 
 
 Hall V. Savage, 507, .555 
 
 Hall V.Simmons, 97 
 
 Hallv. Weir, 348 
 
 Hallett V.Collins,.. 817 
 
 Halliburton V. Leslie,. 132 
 
 Hallowell V. Horter, 717 
 
 Halsey v. Halsey, 137 
 
 Halstead V. Halstead , 919 
 
 Hamaker v. Hamaker, 827 
 
 Hamblett V. Hamblett, 17S 
 
 Hamblin v. Bank of Cumberland, 614 
 
 Hamilton v. Bishop, 428 
 
 Hamilton v. Buckwalter S66, 5OT 
 
 Hamilton, Duke of, v. Lord Mohrn,. ... 268 
 
XVI 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Hamilton T. Eaton, 153 
 
 Hamilton v. Foster, IM 
 
 Hamilton t. Lomax 56 
 
 Hamilton V. Mohun, ol'' 
 
 Hamlin V. Atkinson, 267 
 
 Hamlin v. Bridge, 335 
 
 Hamlin t. Stevenson, : 34 
 
 Hanberry v. Hanberry 898 
 
 Hancock v. Merrick, 346 
 
 Hands V. Slaney, -115 
 
 Hangerv.Fry oUl 
 
 Hanksv.Deal, 57, 103 
 
 Hanks V. Hanks, 872, 907 
 
 HankST. Harman, 334 
 
 Hannav. Spptt's Heirs .' 222 
 
 Hanover v. Turner, 928 
 
 Hanse v. Qllger, Admr., 727 
 
 Hansford V. Hansford, 914 
 
 Hanson V. Keating, 392 
 
 Hantzv. Sealy 129,810 
 
 Hapgood V. Houghton 383, 385, 386 
 
 Hardenburgb V. Hardenburgti, 891 
 
 Hardin v. Grant 350 
 
 Harding v. Alden 584, 898, 922 
 
 Harding v. Springer 503 
 
 Hardy v. Harlinger, 417 
 
 Hardy V. Scanlln 193, 201 
 
 Hardy v. Waters 53 
 
 Harev.Hare, 878, 900 
 
 Harltz V. Sealey 861 
 
 Harklns v. Coulter, «~ . . 441 
 
 Harlan V. Barnes' Admr 215 
 
 Harlen V. Barnes, 172 
 
 Harlestony. Ijynoli, 380 
 
 Harman V. Harman, 865, 887 
 
 Harmer V. Killing, 87 
 
 Harney V. Owen, 75 
 
 Harper V. Gilbert 153 
 
 Harper v. Archer, 386 
 
 Harper V. Harper 907 
 
 Harper v. Eavenhill 380 
 
 Harrington v. Stratton, 104 
 
 Harris v. Burton, 771 
 
 Harris y. Culver, 375 
 
 Harris y. Harris, 902 
 
 Harris y. Hicks 840 
 
 Harrlsy.Lee 344, 357 
 
 Harris V. Morris, 347, 354 
 
 Harris y. Richardson, 261 
 
 Harris V. Bussel, 328 
 
 Harris y. Taylor, 782 
 
 Harris v. Truman 172 
 
 Harris y. Wall, 70,91, 96 
 
 Harris y. Youman, 216, 222 
 
 Harrison y. Brolaskey, 482 
 
 Harrison y. Fane, 114, 117 
 
 Harrison V. Harrison, 897 
 
 Harrison y, Buswell, 838 
 
 Harrod v. Harrod 830 
 
 Harrow y. Johnson, 643 
 
 Hart y. Prates, 115 
 
 Hart y. Eoberfson 764 
 
 Hartv.Seward 769 
 
 Harty. Stevens, 377 
 
 Harteau y. Harteau, 898, 929 
 
 Hartford v. Morris 130 
 
 Hartfleld y. Roper, 192, 200 
 
 Hartley y. Wharton, 91, 96 
 
 Hartmany. Dowdel, 379, 380 
 
 Harton V. Harton, 433 
 
 Hartshorne v. Hartshorue, 625 
 
 Harvey V. Ashley 134, 136 
 
 Harvey y. Harvey, 292 
 
 Karyey y. Norton, 358 
 
 Harvey y. Owen, 151 
 
 Harvey y. Peeks, 511 
 
 Harvey V. Watson, 478 
 
 HartweU y. Jaclcson, 797 
 
 Hasbrouok y. Vandervoort 828 
 
 Hasbrouck y . Weaver, 350 
 
 Hawkins v. Craig 819, 862 
 
 Haskinsv.The People 321 
 
 Hassard V. Eowo, 271 
 
 FACE, 
 
 Hastings v. Crunckleton............ 63T, 628 
 
 Hastings v. Dickenson, . . . 657, 664, Sba, 570 
 
 Hastingsv. Farmer, 525 
 
 Hastings v. Orde, 923 
 
 Hastingsv. Stevens 543 
 
 Ha'fetingsv. Thomson, 207 
 
 Hasty V. Wheeler, 629 
 
 Hatfield v. Sneden 412 
 
 Hatz's appeal, 450 
 
 Havens y. Havens, 574 
 
 Hayilandv. Bloom 892 
 
 Hawkey. Corrle 816 
 
 Hawkes V. Hamar, 359 
 
 Hawkins y. Luscombe, 433 
 
 Hawkinsy. Hall, 603 
 
 Hawkins v. Olean 168 
 
 Hawley v. Bradford, 449 
 
 Hawley V. James 560 
 
 Hawley V. Levlnz, 194 
 
 Hay V. Moyer 408 
 
 Hayesy. Watts 832 
 
 Haysv. Hays 784 
 
 Hays v. Henry, 661 
 
 Hay ward v. Cuthbert 295, 601, 608 
 
 Hay ward V. Ellis, 27o 
 
 Hayward y. Hayward 385, 386 
 
 Hazard, matter of, 303 
 
 Hazen V. Thurber, 697, 627 
 
 Headv.Head 475, 877 
 
 Headen V. Mosher, - 434 
 
 Headley V. Ettling 722 
 
 Healyv. Eoweu 135 
 
 Heard V. Stamford 332, 333, 3M 
 
 Hearle y. Greenbank, 137, 141, 210, 417 
 
 Heathy. West, 76 
 
 Heatleyv. Thomas, 442 
 
 Heedv. Ford, 660 
 
 Heffer V. Heffer 858 
 
 Heftv.McGill 193,194 
 
 Helfrlch V. Obermyer 657 
 
 Hempstead v. Easton, 754 
 
 Hendersonv. Stinger, 364 
 
 Henderson y. Cargill, 865 
 
 Hendersonv. Grey, 383 
 
 Hendin y. Colgin, 867 
 
 Hendricks v. Huddlestone, 270 
 
 Heneganv. Haeller, 543 
 
 Henlyv. Gore, 206 
 
 Heuner v. Morton, 380 
 
 Henrlcov. Laird, 461 
 
 Henryy. Boot 97 
 
 Henry, case of, 594 
 
 Hepburn v. Dubois 612, 513 
 
 Herbert y. Tarball 34, 47 
 
 Herbert V. Wren, 568, 620 
 
 Hernsbyy. Lee, 381 
 
 Herronv. Williamson, 649 
 
 Herr's appeal, 495 
 
 Hersey v. Hersey 731 
 
 Hertzog y. Hertzog, 725 
 
 Hesserv. Steiner, 62 
 
 HetB^. Cocke 542, 680 
 
 Hethy. Richmond, , 767 
 
 Hetherlngton v. Gra,hain 579 
 
 Hicken V. Irvine, 629 
 
 Hiokey y. Hickey 665 
 
 Hickman y. Irvine, 537, 694 
 
 Hickman v. Irvine's heirs, 773 
 
 Hlcksy. Cochan, 500 
 
 Hicks v. Johnston, 446 
 
 Higgins y. Johnson 7i'6 
 
 Higginbotham v. Corn well, 61 4 
 
 Highway y. Benner 459 
 
 Hildreth v. Jones 658, 569 
 
 Hill v. Anderson T& 
 
 Hill V. Chapman 291, 292 
 
 Hill V. Golden, 680 
 
 Hilly. Good 840 
 
 Hill V. Goodrich S43, 681 
 
 Hill V. Hill's Admrs., 866 
 
 Hill V. Mitchell 610 
 
 Hill V. Omeshee, 209 
 
 Hilly. Eessegien, 809 
 
INDEX TO CASES CITED. 
 
 XVll 
 
 PAGE. 
 
 HIU T. Thaoter, 198 
 
 Hillv. West, 817, 441 
 
 Hill's case, 288 
 
 HiUeyer v. Bennett, 79 
 
 HilUardT. Blnfleld B67 
 
 Hills V. Bearse, 698 
 
 Hlndley v. Westmeath, 849, 478 
 
 Hludmarsli t. Southgate, 184 
 
 . Hindmarsh v. Chandler 805 
 
 Hinds T. Hinds 000 
 
 Hlne V. Nixon 255 
 
 Hlnel v. Masterson's Admr., 57 
 
 Hinely v. Margaritz 54, 87, 91, 96 
 
 Hinnershltz v. Bernhard's Executors,. 565 
 
 Hlnney T. PhllUps, 436 
 
 Hlnton V. Hlnton, 567 
 
 Hitchcock y. Harrington, 606 
 
 Hitchlns v. Hltchins, 568, 617, 621 
 
 Hltev. Hlte 173 
 
 Hltner v. Eee, 415 
 
 Hixonv. Oliver, 440 
 
 Hoarev.Hoare 475, 902 
 
 Hoare V. Parker, 682 
 
 Hoarev. Axe 718 
 
 Hoby v.Hoby, 597, 603 
 
 Hodges T. Hunt, 87, 88 
 
 Hodges V. Cobb, 783 
 
 Hodges V. Hodges, 346, 847 
 
 Hodgklnson t. Fletcher 363 
 
 Hoffiman V. Hoflinan, 854, 913 
 
 Hoffman t. Savage 616 
 
 Hoffman v. Toner, 718 
 
 Hoftnire v. Hoftnlre, 904 
 
 Hoftalllng V. Teal .' 193 
 
 HoltT. Underhill 87 
 
 HolbrookT. Bnllard, 186 
 
 Holbrook T. Finney, 527, 548 
 
 Holbrook V. Waters 386 
 
 Holder v. Dickinson, 814. 
 
 Holderness v. Carmarthen 531 
 
 Holdrich T. Holdrlch 874 
 
 Holland V. Moody 738 
 
 Hollls T. Francois 799 
 
 Hollomon v. HoUomon, 595, 605 
 
 Holmes V. Blogg, 64,67, 82 
 
 Holmes V. Holmes, 924 
 
 Holmes v. Logan, 271 
 
 Holmes T. Seeley, 261 
 
 Holtv.Ward 85, 60 
 
 HoltT.Brlen, ., 342 
 
 Homerv. Thwlng 178 
 
 Hone V. Van Schaick 284, 230, 666 
 
 Honegsberger v. The Second Avenue 
 
 Railroad Co. 192 
 
 Honour V. Honour, 459 
 
 Hoop V. Plnnimer, 374, 388 
 
 Hooper V. Hooper, 893 
 
 Hooperv. Savage, 271 
 
 Hootv. Sorell 495 
 
 Hoots V. Graham, 5gg 584 
 
 Hope V. Jones^. 765 
 
 Hopklnson T. Dumas, 849 
 
 Hopper V. Hopper, 608 
 
 Horn V. Boss, 785 
 
 Horneffer v. Duress, 489 
 
 Horwood V. Hoffe 347 
 
 Hoskins V. Miller 319, 362 
 
 Hostleyv. Wharton 212 
 
 Hough V. Jones,.. 719 
 
 Houghton V. Houghton B32 
 
 Houstln V. Cooper, 87 
 
 Houston v. Jamison 608 
 
 Hovenden v. Lord Annesley 171 
 
 Howard, case of, 84 
 
 Howard V. Bartlett 590 
 
 Howard y. Brown, 386 
 
 Howard v. Cavendish, 597, 898, 599, 603 
 
 Howard v. Dlgby 485,426, 427 
 
 Howard V. Norfib 800 
 
 Howard V. Whitstone, 351 
 
 Howe V. Wildes 675 
 
 Howell V. Hanforth, 473 
 
 HoweUv.Malne 383 
 
 3 
 
 Howes V. Blgelow, 819, 833, 362 
 
 Howett V. Alexander 208 
 
 Howlettv. Haswell, 17R 
 
 Hoxiev. Lincoln 76 
 
 Hoxlev. Carr, 682 
 
 Hoyle v. Stowe, j 59,64, 86 
 
 Hoyle V. Stewart, 6GS 
 
 Hoytv.HUton 253 
 
 Hoytv. White, 682 
 
 Hubbard v. Cummings, 55, 84, 87 
 
 Hubblsv. Fogertie, 336 
 
 Huberv.Huber 403 
 
 Hudnalv. Wilder, 479 
 
 Hugenln v. Baseley, 269 
 
 Hugglns V. Wiseman, 117 
 
 Hughes T. Humphreys, 154 
 
 Hughes V. Hughes, 225, 291 
 
 Hughes V. Wells 451 
 
 Hulbut V. Young, 193 
 
 HuUandv. Malkin 284 
 
 Hull V. Connoly, 101 
 
 Hullv.HuU, 852, 925, 929 
 
 Hulme V. Tenant, 434 
 
 Hume V. Hume, 160 
 
 Humphrey V. BuUen, 366 
 
 Humphrey v. Phlhuey, 538, 609 
 
 Humphreys v. Newman, 676 
 
 Hunt V. De Blagulere, 352 
 
 Hunt V. Lellisurier 213 
 
 Hunt V. Massey, 53 
 
 Huritv.Peake 65, 60 
 
 Hunt V. Stephens, 378 
 
 Huntv. Thompson 107 
 
 Hunt V. Warwioke,! 523 
 
 Hunter's appeal 450 
 
 Hunter V. Boucher 349 
 
 Hunter v.HaUett 378 
 
 Huntingdon, Earl of, v. Huntingdon, 
 
 Countess or, 170 
 
 Huntingdon, Lord, y. Lady, 162 
 
 Huntington y. Oxford 39 
 
 Huntington y. Segros, 792 
 
 Huntley v. Compstock 214 
 
 Hurdy. Grant 590 
 
 Hurdv. Cass, 648, 649 
 
 Hurdell V. Colton, 385 
 
 Hurllstonv. Smith 346, 347 
 
 Hussey V. Jewett, 59 
 
 Hussley y. Holt, ;.... 114 
 
 Huston y. Curl 799 
 
 Hutehlns y. Carlton, 614 
 
 Hutchlns V. Commonwealth, 839 
 
 Hutehlns v. Colby, 682 
 
 Hutchinson, case of, 65 
 
 Hutchinson V. Tlndall, 830 
 
 Hutton V. Mascall, 195 
 
 Hyattv.Seeley 141, 304, 309 
 
 Hyde V. Hesser 724 
 
 Hydev.Hyde, 693, 610 
 
 Hyde v. Morgan, 509 
 
 Hydev. Price 473,486 
 
 Hyde y. Stone, 166, 170, 242, 319, 362 
 
 Hynes y. Lewis, 362 
 
 Hyser V. Stoker, 600 
 
 Incledon v. Northoote, 424, B68 
 
 IngersoU y. Ingersoll, 783 
 
 Ingolsby y. Juan 761 
 
 Infioffy. Brown,.. 816 
 
 Inskupv. Inskiip 894 
 
 Irby y. Wilson, 929 
 
 Irwin Vi Merlll, ; 97 
 
 Irwin V. Morell, 170 
 
 Isaacs V. Boyd, 194 
 
 Isaacsy. Taylor, 266, 257 
 
 Ivev. Chester lOO 
 
 Jackv.BuSsey ...^ 828 
 
 Jackson T. Aspell, „ 686, 613 
 
 Jackson y. Boucmer 73, 83 
 
XVIU 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Jaoksonv. Brownson, 629 
 
 Jackson V. Cairns, 605, 666 
 
 Jaoksonv. Carey, 311' 
 
 Jackson v. Carpenter, 13, 85, 87 
 
 Jaoksonv. ChurohlU, 566, 667, 604, 613 
 
 Jaoksonv. Combs....... 343 
 
 Jackson V. DeWitt, 604, 618 
 
 Jackson V. Edwards 441, 448 
 
 Jackson V. Gilchrist 413 
 
 Jackson v. Jackson, 937 
 
 Jaoksonv. Johnson, 400, 413 
 
 Jaokson v. Manoius 420 
 
 Jackson V. Mayo, 69 
 
 Jaokson V. MoConnell, 394 
 
 Jackson v. Moore, 170 
 
 Jackson V. NlxoHj 604, 613 
 
 Jaoksonv. O'Donaghy 686, 606 
 
 Jaokson v. Parker,; 371 
 
 Jaokson V. Randan, 696, 604, 613 
 
 Jaokson v. Sears, 859, 261 
 
 Jackson v. Selliok, 413 
 
 Jaokson v. Stevens, 500, 505, 566 
 
 Jackson V. Suffern 394, BOO 
 
 Jaokson V. Todd, 59, 72 
 
 Jaokson v. Turner, 216 
 
 Jaoksonv. Waltermire, 613 
 
 Jaokson v. Whitlook, 170 
 
 Jaoksonv. "Wlnne 818, 847 
 
 Jackson v. Vanderheyden, .... 218, 606, 686 
 
 Jacques v. Short, 386 
 
 James v. James, 173, 173 
 
 James V. Le Eoy, 156 
 
 James v. Bowan 549 
 
 James V. Taylor 644 
 
 Jameson V. Manley, 222 
 
 Jamison V. Brady, 428, 431 
 
 Jamison V. Jamison, 556 
 
 Janes v. Fisk, 443 
 
 Jaquesv.Metn. Episcopal Church,. 441, 443 
 
 Jaqnes v. The PubUo Admr 825, 862 
 
 Jarman v. Walloton, 483 
 
 Jarma'n V. Woolstan, 432 
 
 Jarrett V. The State, 266 
 
 Jaycox V. Collins , 658 
 
 Jeans V. Jeans, 913 
 
 Jeov. Thurlow 476, 915 
 
 Jeffery V. Grey, 396 
 
 Jeffi-le V. Bobedeaux 172, 203 
 
 Jefford's Admr. v. Biuggold, 52 
 
 Jeflbrd V. Ringold, 59 
 
 Jencks V. Alexander, 480 
 
 Jenkins V. Bisbee 865 
 
 Jenkins V. Preyer 224 230 
 
 Jenkins v. Jenkins, S3U 
 
 Jenkinsv. Walter, 263 
 
 Jenks V. Jenks, 57 
 
 Jennev. Jenne, 897 
 
 Jenne V. Ward, 212 
 
 Jenner, case of, 39 
 
 Jemieyv. Grey, 735 
 
 Jenningsv. Davis, 712 
 
 Jennings v. Pitman, 153 
 
 Jenningsv. Bundell 176 
 
 Jerrard v. Saunders, 622 
 
 Jervls V. Littlefleld 178 
 
 Jervoicev. Jervolce, 423 
 
 Jewell's Lessee v. Jewell 819 
 
 Jewettv. Davis, 702 
 
 Jewett v. Guyer, 692 
 
 Jodrellv. Jodrell,. 425 
 
 Johnson, Admr. v. Ex. of Johnson , . . . . 270 
 
 Johnson v. Carter, 201 
 
 Johnson v. Johnson, 580, 731, 773, 826, 905 
 
 913 
 
 Johnson r. Jones, 770, 777 
 
 Johnson V. Morse 586, 588, 689 
 
 Johnson v. Nell 588 
 
 Johnson v. Perley 586 
 
 Johnson v. Pie, 181 
 
 Johnson v. Rockwell, 57 
 
 Johnson v. Sherwin, 825 
 
 Johnson V. Shields, 584 
 
 Johnson V. Snow 710 
 
 PAGE. 
 
 Johnson V. Stilllngs, £8 
 
 Johnson v. Taylor • ■ - . ■ . • 288 
 
 Johnson v. Thomas, 585, 607, 626 
 
 Johnsouv. Thompson, 441 
 
 Johnston v. Brown, 8d0 
 
 Johnston V. Johnston, 495 
 
 Johnston V. Slater, 767 
 
 Jolly y. McGregor, 852 
 
 Jones' Admr. V. Warren's Admr 375 
 
 Jones V. Bremer, 600 
 
 Jones V. Brewer, 587, 589, 605, 616 
 
 Jones V. Brown, 367 
 
 Jones V. Butler 136 
 
 Jones V. Oolvin 101 
 
 Jones V. Crosthwaite, 752 
 
 Jones V. Devore, 675 
 
 Jones' Exr. v. MoGinty, 206 
 
 Jones V. Griffith. 617, 634 
 
 Jones' Heirs V. Adair, 215 
 
 Jonesv. Henry, 456 
 
 Jonesv. Jones, 447, 896, 912 
 
 Jones, matter of, 298 
 
 Jones V. Obenchain, 767 
 
 Jones V. Patterson 368, 384, 590 
 
 Jones V. Plumraer, 732 
 
 Jones V. Pow.ell 597 
 
 Jonesv. Say, 433 
 
 Jones V. Smith 848 
 
 Jonesv. St. John, 173 
 
 Jones V. The Phcenlx Bank,. ... 55, 81, 92 
 
 Jonesv. Todd 625 
 
 Jones V. Tubervllle 203 
 
 Jones V. Walkup 333, 335,781 
 
 Jones V. Ward, 251 
 
 Jones V. Warren, 376 
 
 Jordan V. Jordan, 675 
 
 Jordan, case of, 189 
 
 Jourdan v. Jonrdan, 509, 556 
 
 Joyce V. De Moleyns, 622 
 
 Judson V. Blanchard, 193 
 
 Judsonv. Moulson 380 
 
 Judson V. Storer, 203 
 
 Junction Bailroad Co. v. Harris, 739 
 
 Jurdan V. Stone, ., 590 
 
 Justices V. Buchanan, 267 
 
 Justices V. Dosler 2ff7 
 
 Justices V. Willis 267 
 
 Justices V. Wilson 867 
 
 K. 
 
 Kahlv. Kraner, 865 
 
 Kalnv. Fisher, 500, 633 
 
 Kanev. Bloodgood, 171 
 
 Kane, matter of, 294 
 
 Kantrowitz V. Prather, 446, 739 
 
 Karr v. Karr, 270 
 
 Eashaw V. Kashaw 763 
 
 Kassel v. Becker, 484 
 
 Kavanaugh V. Brown, 800 
 
 Keane v. Bayoott 59 
 
 Keatsv.Keats 903 
 
 Keaton v. Dimmick, 615 
 
 Keokley v. Keokley ■ 559 
 
 Keokwioh, case of, 261 
 
 Keev. "Vassar, 490 
 
 Iteefer v. Young, 615 
 
 Keeganv. Smith, 358 
 
 Keeler V. Eastman, 629 
 
 Keenv. Coleman, 316 
 
 Keen v. Batman, 315 
 
 Keene v. Boycott, 43 
 
 Keeuey v. Good, 718 
 
 Keeran v. Clowder, 193 
 
 Kegan V. Allcum. 52 
 
 Kelper V. Helfrlcker 728 
 
 Keith V. WombeU 487 
 
 Keith V. Trapler, 544 
 
 Kellog V. Klook 71 
 
 Kellog, matter of, 271 
 
 Kelly V. Drew 698 
 
 Kelly V. Harrison, 521 
 
 Kelly V. McCartney, 811 
 
INDEX TO CASES CITES. 
 
 XIX 
 
 FAOE. 
 
 KellyT. Soott, 840 
 
 KelsaU T. KelsaU, 215, 219 
 
 Kemp T.Cook, 160 
 
 Kempv. Dunham, 846 
 
 Kempv. Squire 203 
 
 Kenadyv. Daly,. 171 
 
 Keudall t. Miller 513 
 
 Kendall v. Honey, 635 
 
 Kenedy T. Doyle, 92, 213 
 
 Kenedy T. Kenedy, 6B0 
 
 Kenedy v. MeAllley, 681 
 
 Kennedy V. Good 733 
 
 Kennedyv. Mills, BOB 
 
 Kennedy T. Nedrow 666, 667 
 
 Kennedy v. Wistar, 66B 
 
 Kennerlyv. Missouri, 653 
 
 Kentv. Burgess, 816 
 
 Kenyon v. Ashbridge 865 
 
 Kei-gan v. Smith, 934 
 
 Kester v. Stark 35 
 
 KetcUamv.Walsworth 602 
 
 KettletasT. Gardner, 343 
 
 Kettillsly v. KettlUsly 583 
 
 Kevan V. WaUer 253 
 
 Keyes T.Hill 692 
 
 KeyesT. Keyes 852 
 
 Keyser T. MoKlssam, 179 
 
 Kid T. Mitchell 194 
 
 Klddall T. Trimble, 609 
 
 Kiiby T. Haggin 386 
 
 Kilgore T. Jordan, 96, 183 
 
 KilleristT. KUlerist 374 
 
 Kimball T. Eaton 661 
 
 Kimball v. Ives, 172 
 
 Kimball T. Keyes, 348, 354 
 
 KlmbaU T. Kimball 613 
 
 King T. Amesly, 144, 151 
 
 King T. Birmingham, 861 
 
 King T. Bow 151 
 
 King V. Brown, ... 199 
 
 King T. Climesford 39 
 
 KingT. CaiTiger 331 
 
 King T. Cromford, 151 
 
 King T. Denison 157 
 
 KingT. DUliston, 121, 175 
 
 King T. Great Wigston, 157 
 
 ICingT. Greenhill 275 
 
 King T. Mountsorel, 154 
 
 KingT.Peck, 163, 154 
 
 King T. Whitley , 462 
 
 KingT. Winton 478 
 
 Kingdom T. Bridges, 490 
 
 Kingsley t. Smith, 749 
 
 Kinsington T. Dolland, 428 
 
 KlrbyT.Kirby 919, 920 
 
 Klrby T. Taylor, 370 
 
 KlrbyT.Tead 700 
 
 Klrby t. Turner, 270 
 
 KirkT. Dean, •. 655 
 
 Kirkpatrick t. Buford, 793 
 
 Klrten T. EUlott, 75,114, 176 
 
 Kitchen t. Lee, 77 
 
 KleuT. Gibney, 482 
 
 Kline t. Beebe 43, 51, 82, 93, M2, 414 
 
 KlineT.L'Amoreaux, 101 
 
 Knapp T. Smith, 643 
 
 Knight T. Knight, 432, 549 
 
 Knight T. Mains, 615 
 
 Knox T. Flack 47 
 
 Knox T. Picket, 336, 359 
 
 Knox T. Pollock, 218 
 
 KockT. Kock 912 
 
 Koontz V. Noble, 733 
 
 Kramer T. Conger, 753 
 
 KrigerT. Day, 678 
 
 KuhnT. Kaler, 636 
 
 Kurtz's appeal, 730 
 
 L. 
 
 Labortine t. Labortlne, 896 
 
 Lachton t. Adams 381 
 
 LaddT. Lyne, 354 
 
 Laingy. Cunningham, 762 
 
 Laklny. Lakln, 576, 680 
 
 Lambert t. Franchebols, 791 
 
 L' Amoureaux t. Van Rensselaer, 482 
 
 Lampkiny. Creed, 385 
 
 Lamplugh t. Lamplugh 157 
 
 Lancaster t. Dolan, 443 
 
 Lancaster Bank t. Stauffer, 726 
 
 Landy t. Dutchess of Athol, 2a0 
 
 LaneT. GoTer, 209 
 
 Lane V. Ironmonger 340, 358 
 
 Lane t. McKean, 508 
 
 LangfordT. Frey, 47 
 
 Langham v. Newry, 874 
 
 Lanoy T. Duke of Athol 202 
 
 Lansing, matter of, 801 
 
 Lapeter y. Turner, 510 
 
 LapreeseT. Falls, 328 
 
 Lasher t. Lasher, 567, 574 
 
 Latimer t. Elgin, 461 
 
 Latourette t. Williams, 379 
 
 Lauber t. Marsh 887 
 
 Laughery y. Laughery 913 
 
 Layie T. Phillips, 483 
 
 LawT. Wllkins ; 107 
 
 LawesT. Lumpkin 493 
 
 Lawlery. Durry, 221 
 
 Lawrence t. Brown, 580, 616 
 
 Lawrence y. Heister, 610 
 
 Lawrence T. Lawrence, 568 
 
 Lawrence t. McArther 47 
 
 Lawrence v. Miller, 584, 616 
 
 Lawrence t. Spear 484, 764 
 
 Lawson T. LoTeJoy, 43, 52, 8S 
 
 Lawson v. Morton, 538, 549, 773 
 
 Lawson t. Shortwell, 922 
 
 Lawyer y. Slingerland, 751 
 
 Lay Grae y. Peterson, 325 
 
 Layton y. Butler, 608 
 
 Leaohy. Noyes 681 
 
 Leader y. Barrey, 212 
 
 Leayitty. Lamprey, 651, 555, 591, 607 
 
 Leayitt y. Leayitt, 854 
 
 Leaycraft t. Hedden 443, 715, 71« 
 
 Le Barron y. Le Barron 836 
 
 Lebbeyy. Scott, 610 
 
 Le Breton y. Miles, 453 
 
 Leclimerey. CarUsle 170 
 
 Lechmere y. Brasler 217 
 
 Ledeliey y. Powers, 653 
 
 LedUey. Vrooman, 654 
 
 Lee y. Braxton 215 
 
 LeeT. Gowalt, 257 
 
 LeeT.Jenkins 52 
 
 Lee T. LlndeU, 539,640 
 
 Lee T. Maggeridge 439 
 
 Lee T. Matthews, 377 
 
 Lee Bank y. Saterlee 331 
 
 Leey. Stewart, .' 134, 467 
 
 Leev.Wheeler 367 
 
 Leefe, matter of, 370 
 
 Lefeyre y. Laraway, 174 
 
 Lefevre y. Murdock 488 
 
 Lefevrey. Wltmer 338, 726 
 
 Le Forester, ease of, 39 
 
 LegeytT. O'Brien, 829, 831 
 
 LeggT. Legg 319, 362, 374 
 
 LenoxT. Notrebe 172, 549 
 
 Leonard T. Bagan 747 
 
 Leonard t. Leonard 600, 611 
 
 Leonard T. Steele, 672, 610 
 
 LesesureT. Russell,. 601 
 
 Leseur t. Leseur, 910 
 
 LesterT. Frasier 460 
 
 LeTcrlng t. LcTcrlng 562, 891 
 
 LeTlcky. Coppln, 371 
 
 Leylnsy. Sleator 576, 923 
 
 Lewis y. Baldwin, 450 
 
 Lewis T.Lewis 567, 913 
 
 Lewis y. Pansford 478 
 
 Lewis y. Smith 542,567, 674 
 
 Lewis y. Waters, 510 
 
 LightT.Llght, 893 
 
XX 
 
 INDEX TO CASES CITEb. 
 
 PAGE. 
 
 Lightly T. Clonston, 186 
 
 liigonlav. Baxter, 860 
 
 Llua T. Alrey, , 474 
 
 Lillard V. Turner, 777 
 
 Linden V. Graham 634 
 
 Linker T. Smith, 432 
 
 Llnsley V. Brown, 665 
 
 Llthgow T. Kavenagh, 508 
 
 Litchfield T. Cadworth, 395 
 
 Litchfield T. KosweU ITS 
 
 Little V. Sancan 93 
 
 LItUev.Marsh 876 
 
 Little Miami B. B. Go. t. Jones, 663 
 
 Littleton v. Littleton, 661 
 
 Idvlngstou T. Livingston, 168, 495 
 
 Livingston v. Beyuolds, 629 
 
 Lobdell V. Hayes, B50 
 
 Lock V. Smith, 77 
 
 Lockey v. Lookey, 162, 171 
 
 Lockridge v. Lockrldge 918 
 
 Lockwood V. Salter, 336 
 
 Lockwood V. Stockholm, 866 
 
 Lodge V. Hamilton, 375 
 
 Logan V. Sheffield, 203 
 
 Logan V, Link, 825 
 
 Logan V. Logan, 918 
 
 Londonderry^. Chester, 129, 861 
 
 Long V. Norcom, 295 
 
 Longendyke v. Longendyke, 663 
 
 Longvllle, case of, 597 
 
 Loofv. Loot 125 
 
 Loomer v. Wheelwright, 450 
 
 Lordy.Lord, 565,568,674 
 
 Lordv. Parker,., , 698 
 
 Lott v. Keach, 799 
 
 Lovellv. Minot, 263 
 
 Lovet V. Boblnson, 497 
 
 Lovett T. Lovett, 916 
 
 Lovette v. Longmlre, 793 
 
 Lowv. Carter, 491 
 
 Lowe V. Griffith, 54, U4 
 
 Lowery v. Herbert, 790 
 
 Lowndes V. Lowndes, 236 
 
 Lowry V. Houston SK, 386 
 
 Lowryv. Steel, 413 
 
 Lowry V. Tlerman, 463 
 
 Loyd V. Bead, 157 
 
 Loyd T. Taylor, 609 
 
 Loyd V. Conover 639 
 
 Lucas V. Calcraft 619, 627 
 
 Lucas V. Lucas, 913 
 
 Ludwlokev. Fair 53 
 
 Lufkln V. Curtis, 656 
 
 Lumleyv. Thomas, 185 
 
 Lund V. Woods, 642, 644 
 
 Luning V. Brady, 762 
 
 Lush T. Alburtis, 306 
 
 Lylly, case of, 153 
 
 Lyman v. Conkey, 267 
 
 Lynde V. Budd 84 
 
 Lynev.WalUs 218 
 
 Lynn v. Bradley, 771 
 
 Lyon v. Marclay, 170 
 
 Lyonv.I^on, 928 
 
 Lyon V. Knott 790 
 
 Lyons v. BlQnkln, 248, 276 
 
 Lyster V. Mahouey 649 
 
 Lytle's appeal, 719 
 
 M. 
 
 Maherly v. Tuston, 291 
 
 Maccubbln v. Cromwell, 542 
 
 Macken V. Macken, ' 7S7 
 
 Mackey V. Gregg, 197, 205 
 
 Maokey V, Proctor, 773 
 
 Macklrv. May, 108 no 
 
 Maoknellv. Bachelor, .' 114 
 
 Maclay v. Love, 765 
 
 Macllnv. Burroughs, i! 443 
 
 Macondry v. Wardle, !."."!!!.'! 320 
 
 Maddoz v. Miller 102 119 
 
 Mad Elver &. Lake Erie B. R. Co. v. Ful- 
 tohi 828 
 
 PAGE. 
 
 MaflJtv. Commonwealth, 336 
 
 Magaw V. Stevenson, 719 
 
 Mageev. White 345, 795 
 
 Maggsv.EUls 37 
 
 Mt^erv. Ingersoll, 436 
 
 Magruder v Peter, , 261 
 
 Maguire V. Thompson 466 
 
 Magulrev. Magulre, 808, 897, 918, 928 
 
 MaSon v. Gormley, 719 
 
 Mahone v. Mahone, S87, 892 
 
 Mahoney V. Young 611 
 
 Mahonyv. Evans 113, 358 
 
 Main V. Stevens, 329, 344 
 
 Malnwarlng V. Leslie, 356 
 
 Major V. Lansley, 438 
 
 Major V. Symmes 446 
 
 Makenv. Gormley, 489 
 
 Maltbyv. Harwood,. 153 
 
 Manchesterv. Hough, S07 
 
 Manchester V. Sahler, 655, 660 
 
 Manderback V. Mock, 718 
 
 Mangey V. Hungerford, 423, 489 
 
 Manhattan Co. v. Evertson 561 
 
 Manley v. Scott, 113, 178, 341, 349 
 
 Manly V. Buchanan, 543 
 
 Mannv. Marsh, 656 
 
 Mansfield, case of, 210 
 
 Mansfield v. Mansfield, 469, 913 
 
 Mansfield V. Mclntyre, Sn 
 
 Mantz V. Buchanan, S74 
 
 Manwaring v. Sands 350 
 
 Maples V. Hastings, 47 
 
 Maples V. Wightman, 92 
 
 Marker v. Marker, 161 
 
 Marlsham V. Merritt, 555 
 
 Marlow V. Pitfleld H5 
 
 Marraman V. Marraman 770 
 
 Marselis V. Seaman 361 
 
 MarseUls T. Thalhimer, ....224, 225, 231, 412 
 
 Marsh V. Potter 328 
 
 Marshallv. Crow, 7S7 
 
 MarshaUv. Miller, 769 
 
 Marshall v. Button 316, 329, Sffi, 373 
 
 Martin V. Dlvelly, 317 
 
 Martin V. Martin 392, 450, 845 905 
 
 Martin V. Mayo, 59, 90 
 
 Martin V. Pepall, 709 
 
 Maskelyne v. Maskelyne, 440 
 
 Mason, matter of, 298 
 
 Mason v. Crosby, 856 
 
 Masonv. Davidson, 61 
 
 Mason V. Duncan 45 
 
 Mason V. Jones, 224, 229 
 
 Mason v. Wait, 265 
 
 Mason T. Wright 113 
 
 Massingale V. Tate 2S7 
 
 Masten v. Masten, 910 
 
 Matheney V. Guess 380 
 
 Mather v..Clark, 185, 212 
 
 Matherv. McDowles 151 
 
 Matlock V. Gallon 2i6, 218 
 
 Matlock V. Stearns,... 394, 897, 898, 418, 431 
 
 Matsonv. Matson, 773 
 
 Matthews v. FielstU, 359 
 
 Matthews v. Matthews 540 
 
 Matthewsonv. Johnson, 66 
 
 Matthewson V, Smith, 543 
 
 Mattox V. Mattox, 905 
 
 Mawson V. Blanc 81,91, 96 
 
 Mayv. Calder, 242, 343 
 
 Mayburryv. Brlen, 527 
 
 Mayer v.Townshend 440 
 
 Mayfield V. ClUton 362, S75 
 
 Mayhewy. Thayer 345,358 
 
 Mayhughv. Mayhugh 918 
 
 Mayne V. Bredwln, 283 
 
 Mayor V. MqLure, 87 
 
 Majrwood V. Johnston, 880 
 
 McArthurv. McArthur, 543 
 
 McArthurv. Franklin, is&, 736 
 
 McCabe v. Bellows, 542 
 
 McCaflferty v. MoCaflferty, 577," Ml, 916 
 
 MoCallsterv.Brand, 508 
 
INDEX TO CASES CITED. 
 
 XXI 
 
 PAGB. 
 
 McCall T. Parker, 140 
 
 McCarter v. Teller 135, 562, 663 
 
 McCartney, receiver v. Welch 449, 663 
 
 McCarty V. McCarty, 878 
 
 MoCarty V. Mewhlnney 78S 
 
 MoCauley v. Dismal Swamp Co., 537 
 
 McCauley T.Grimes, 528 
 
 McCanley V. Phillips, 387 
 
 McOlanalian v. Beasley 770 
 
 McClanehan v. Porter, , 609 
 
 McClary V. Bixby, 692 
 
 McCloskey t. Cyphert 122, 123 
 
 McClure T. Harris, 574 
 
 McCoon T. Smith, 184, 212 
 
 MoCord T. Noyes, 673 
 
 McCormlok v. Taylor, 604 
 
 McCoskerv. Golden 366 
 
 MoCraney v. McCraney, 577, 922 
 
 McCreary v. McCreary, 511, 523 
 
 MoCrillls T. Howe 103 
 
 MoCuUough V. Allen 666, 567 
 
 McCully V. Smith, 682 
 
 McCutchen v. McGahay 841, 346, 356 
 
 McDanlel v. Grace, 793 
 
 MoDanlel T. Douglas, 567 
 
 McDanlel T. Nicholson, 194 
 
 MoDermott's appeal, 900 
 
 MoDermot t. French, 715 
 
 McDonoughT. Hepburn, 651 
 
 McDowell v. Caldwell, . . .' 271, 295 
 
 McDowels, matter of, 144, 283 
 
 MoElfatrlck T. Hicks, 717 
 
 McElhattan v. Howell, 389 
 
 McElroy T. Walters, 609 
 
 McElroy, case of, 829 
 
 MoFarlandv. Bare 557 
 
 McGahay T. Williams 346,355 
 
 McGeev. Ford, 386 
 
 McGeev. McGee 912 
 
 McGeorge v. Egan 343 
 
 McGlfTert T. McGlfTert, 928 
 
 McGiffln T. Storrs, 199 
 
 McGIUt. Woodward, 74 
 
 McGiUlcuddy t. Forsyth 193 
 
 McGlinsey's appeal, 436 
 
 McMurdyv. MoMurdy, 786 
 
 McIlYalne T. Kadel 657 
 
 Molntire v. Ward, 555 
 
 Mcintosh T. Ladd, 661 
 
 McKaylln V. BresUn, 699 
 
 McKay T.Allen 446 
 
 McKayT. McKay 892 
 
 MoKeev. Pfout, 420 
 
 McKlnney t. Hamilton, 450 
 
 McKnlght T.Hogg, 153 
 
 McKune t. McGarTcy, 763 
 
 McLean T. Langland, 491 
 
 McLalnT. Gregg 768 
 
 McLellanT. Nelson, 678 
 
 McMath v. The State 266 
 
 McMinn T. Richmond, 103 
 
 McMuUin v. McMullln 754 
 
 McNeUl T. Arnold, 377 
 
 McNeill T. Holloway, 365 
 
 McNlsh T. Pope, 549 
 
 McWhorterT. Agnew, 457 
 
 Mead T. Mitcheir, 230 
 
 Medbury t. Watrous, 72 
 
 MedburyT. Watson 75 
 
 Medllcott V. O'DoneU, 621 
 
 Medway V. Croft, .*. 829 
 
 MSedsT. Meeds 495 
 
 Meegan v. Boyle, 755 
 
 Megrath v. Robertson, 441, 484, 487 
 
 Melbourne v. Ewart 465 
 
 Melizet V. Mellzet 912 
 
 Melizet's appeal 663, 665 
 
 Melllsh V. Da Costa, 253 
 
 MelUsh V. Melllsh, 269 
 
 Melton V. Duke of Devonshire, 236 
 
 Melvln V. Locks, 555 
 
 Mendes v. Mendes, 251 
 
 Menklns v. Llghtner, 829 
 
 4 
 
 PAGB. 
 
 Mercer v. Seldon, 414 
 
 Mercer V. Watson, 204, 205 
 
 Merchant's Fire Ins. Co. v. Grant, 86 
 
 Merclen v. The People 276, 287 
 
 Meredith V. Sanders, 205 
 
 Merriara V. Cunningham, 63, 06, 113 
 
 Merriam v. Hurson, 505 
 
 Merriamv. Wllklns 87 
 
 Merrill v. Aden, 176 
 
 Merrill V. Smith 319, 677 
 
 Merritt V. Aden 63 
 
 Merrltt v. Heme, 415 
 
 Merritt V. Lyon, 449 
 
 Merriweather v. Brooker 368 
 
 Mertlnv. Hopkins, 372 
 
 Messenger V. Clark, 319 
 
 Messiter V. Wright 542 
 
 Metcalfe V. Shaw, 342 
 
 Meyers v. Wade 265 
 
 Meyers V. Klnzer, 761 
 
 Mick V. Mick 521 
 
 Mlddleborough v. Rochester, 829 
 
 Middlebury College v. Chandler, 115 
 
 Mlddleton v. Mather, 378 
 
 Middockv. Williams 556 
 
 Miles V. Boyden 193, ai2 
 
 Miles V. Fisher 548 
 
 Miles V. Kaigler, 242 
 
 Miles V. Wiinams 336 
 
 Milford V. Worcester 129, 860, 861 
 
 Millard y. Hewlett 75, 87 
 
 Miller's appeal, 859 
 
 Miller V. Beverly 589 
 
 Miller V. Goddwln, 465 
 
 Miller v. Hlne, 815, 735 
 
 Miller v. Marckle, 839 
 
 Miller v.MiUer. 469, 580, 594, 600, 611 
 
 Miller v. Shackleford, 395, 512 
 
 Miller v. Williams, 870 
 
 Miller V. Wilson 561 
 
 Mills T. Dennis, 172, 216, 223 
 
 Mills V. Graham, 177 
 
 Mills V. Grant 692 
 
 Mills V. Mills, B67 
 
 Mills T. VanVoorhis, ;. 642 
 
 Milner t. Harwood, 134, 173 
 
 Mitchell T. Blair 232, 568 
 
 Mitchell T. Marr,.... 799 
 
 Mitchell T. Reynolds, , 67 
 
 MitchsenT. Henson, 333 
 
 Mitford T. Mltford, 885, 869, 880, 381 
 
 Mittlmorev. Mittimore, 676, 677 
 
 MixT. Mix 912 
 
 MizenT. Pick, 3B2 
 
 Moehringv. MItcheU, 882, 672 
 
 Mogg T. Mogg, 224 
 
 MoIeT. Smith 621 
 
 Molon T. Kennedy, 434 
 
 MoltT. Comstock 352 
 
 Mondry T. Mondry, 219 
 
 Mongln T. Baker, 226 
 
 Monroe T. Twlstleton, 821 
 
 Montague t.. Benedict, ; . . . . 842, 358 
 
 Montague T. Epinasse 342 
 
 Montaguev. Maxwell 371 
 
 Montgomery T.Henderson, 465 
 
 Montgomery t. Montgomery, 857, 896 
 
 Montgomery t. Smith, 257 
 
 Moody T.King, 405, 406 
 
 MoodyT. Matthews, 370 
 
 Moody T. Moody, BOO 
 
 Mooney, case of, 398 
 
 Moore t. City of New York, 653 
 
 Moore t. Esty 547, 614 
 
 Moore t. Gillian, 686 
 
 Moore t. Henderson 336 
 
 Moore T. Moore, ; 173,427, 778 
 
 Moore T. Rake, 609 
 
 MoorcT. Rollins 643 
 
 Moore'T. Thomas 768 
 
 Moore t. Tisdale B28 
 
 Moore T. Waller 688, 694 
 
 MooresT. De Bernales 623 
 
XXll 
 
 INDEX TO CASES CITED. 
 
 PAGB. 
 
 Moor T. Black, 620 
 
 Moorson v. Moorson, 902 
 
 Mordant y. Therold, 619, 627 
 
 Morev. Scarborough 427 
 
 Morehousev. Cook 259 
 
 Morel V. Dickey, 
 
 Morell, matter of, 303 
 
 MoreU V. Morell, 909, 910, 911 
 
 Morgan v. Edwards, 668 
 
 Morgan V. Elam, 443 
 
 Morgan V. Morgan 271, 412 
 
 Morgan V. Eyder 619, 629 
 
 Morgan t. Slate 840 
 
 Morgan t. Thames Bank, 319, 362, 386 
 
 Morgan t. Thome 197, 199 
 
 Morleyv. Wright 381 
 
 Morn T. Carson, 265 
 
 Morrison V. Bowman, 760 
 
 Morrison v. Holt, 364 
 
 Morrison t. Wilson, 768 
 
 Morris T. Clark, 764 
 
 Morris v. DaTies, 233 
 
 Morris v. Garrison 315 
 
 Morris t. Martin, 360 
 
 Morris v. Morris, 869, 887 
 
 Morris V. Norfolk 317,334 
 
 Morris v. Stewart, 97 
 
 Morse V. Graves 38 
 
 Morse T. The State 191 
 
 Mortara T. Hall, 101, 116 
 
 MortlmerT. Wright 106, 109 
 
 Morton T. Witkins, 368, 342 
 
 Mory V. Michael, 448 
 
 Moses T. Forgarti 342 
 
 Moses T. Levi, 387 
 
 Moses V. State, 840 
 
 Moses T. Stevens, 79 
 
 Mosher v. Mosher, 534, 538, 538, 639, 648 
 
 Motley V. Motley, 894 
 
 Motley T.Sawyer, 495,677 
 
 Motley V. Whitemore 501, 783 
 
 Moulton v. Hurd, 743 
 
 Mount Holly v. Andover, 868 
 
 Mount V. Morton, 817 
 
 Mouson T. Williams, 347 
 
 Mamma v. Mumma, 157 
 
 Mundy v. Earl Howe, 290 
 
 Mundy T. Mundy, 618,620, 627 
 
 Munro v. DeChemant, 340, 844, 346 
 
 Munsey T. Goodwin 156 
 
 Murphy V. Murphy, 660 
 
 Murray v. Barlee, , 474, 745 
 
 Murray T. Bartlett, 443 
 
 Murray V. Elihank, 387 
 
 Murray v. Keyes 345, 489, 723, 770 
 
 Musgrave t. Parry, 224, 225 
 
 Musgrave T. Keeneygay, 160 
 
 Mustard v. Woolford, 75 
 
 Mutual Fire Ins. Co. v. Noyes 115 
 
 Mutual Fire Ins. Co. t. Deale, 734 
 
 Myers v. Myers, 903 
 
 N. 
 
 Nalder v. Hawkins 198 
 
 Nanney v. Martin, 387 
 
 Napier T. Effingham, 215, 218 
 
 NashT. Nash 878 
 
 Nason T. Allen, 484, 613 
 
 Naylorv. Field, 716 
 
 Neagle v. Neagle, 907 
 
 Needhamv. Branson, 501 
 
 Needles T. Needles, 315,388 
 
 Neelyv. Butler, 773 
 
 Neil's Admr. v. Cheney 825 
 
 NeimcewiezT. Qahn, 449 
 
 Nelson T. Farwood, 611 
 
 Nelson v. Jennings 766 
 
 Nelson v. Suddartn 847 
 
 Nelthrop v. Anderson, 864 
 
 Nettleship v. Nettleship 452 
 
 NeufyUle t. ThomsoUi. 492 
 
 Neury & EnnlskUlen K'y t. Coombe,. . 175 
 
 PAGE. 
 
 Neville V. Saunders, 433 
 
 Newberry v. Martin, 215 
 
 Newell V. Newell, 836 
 
 Newland v. Paynter, 428 
 
 Newman V. Jenkins 528 
 
 Newman v. Auling, 627 
 
 Newton V. Cook 542 
 
 Nicholsv. Eamsey, 34 
 
 Nichols V. Allen 107 
 
 Nichols v. Nichols, 885 
 
 Nichols V. Webb 214 
 
 Nicholas V. Palmer 472 
 
 Nicholson V. Wilborn, 102 
 
 Nicholson v. Wilbur, 203 
 
 Nicholsonv. Hemsley 510 
 
 Nickerson v. Howard, 152 
 
 Niool, matter of, 258 
 
 Nightingale v. Whittlngton, 54, 79 
 
 Nightingale v. Hidden, 710 
 
 Nininger v. Com'rs of Carver Co., 730 
 
 Nixon V. Nixon 439 
 
 Noel y. Jevon 648 
 
 Norcross v. Rogers, 691 
 
 Norris v. Vance, 96, 182 
 
 Norrls v. Wait 97 
 
 Norris v. Hemingway 318, 387 
 
 Norris v. Lane 389 
 
 Norris v. Morrison, 684 
 
 Norrisv. Lantz, 733 
 
 Norris v. Duncan, SO.! 
 
 North V. North, 912 
 
 North Am. Coal Co. v. Dyett, 442 
 
 Northcutt V. Whipp, , 410, 547, 703 
 
 Northrup V. Bamum 480 
 
 North Western R'y v. McMichael,. 142, 175 
 
 Norton v. Rhodes 34S 
 
 Norton V. Farau, 318 
 
 Norton v. Seton, 836, 864 
 
 Norwood V. Marrow, 562, 616 
 
 Nottingham V. Calvert, 54.S 
 
 Nourse v. McCoy, 214 
 
 Noyes v. Blakeman, 482 
 
 Nurse v. Terworth, 221 
 
 Nursev. Craig, 332, 352, 472 
 
 Nurse V. Beach, .328 
 
 Nutz v. Reutter 266,333 
 
 O. 
 
 O'Brlan v. Ram 336, .837 
 
 O'Brien v. Currie, 38 
 
 OdeU V. Lee, , 751 
 
 Offley V. Offley 426 
 
 Ogden V. Prentice, 340 
 
 Oglander V. Baston 382 
 
 CKeefe V. Casey, 263 
 
 Oldham v. Henderson 397, 773, 938 
 
 Olin V. Hungerford, 913 
 
 Oliver V. Howlet, 43 
 
 Oliver v. Horedlet 69, 62 
 
 Oliver V. Richardson, 626 
 
 Oliver V. Oliver, 916 
 
 Onderdonkv. Mott, 296 
 
 O'Neil V. Herbert 270 
 
 O'Neill V. Henderson, 793 
 
 Ordinary v. Wherry, 85 
 
 Ordroneaux V. Rey, 453 
 
 O'Reilly V. King 305 
 
 Orphan Asylum v. Strain, 385 
 
 Orr V. HoUlday 414, 773 
 
 Orvls V. KimBall, 52, 91 
 
 Osbornv. Morgan,. 364, S90 
 
 Osgood V. Breed, 330 
 
 Osland, case of,. 398 
 
 Oswald V. Broderick 63 
 
 Oswaltv. Moore 4^ 793 
 
 Ottman v. Moak, 77 
 
 Olway v. Otway.. ...'.'! 918 
 
 Outoale V. Van Winkle 380 
 
 Outhwaltev. Outhwalte, 627 
 
 Overbade v. Heerraance, 55 
 
 Owen V. Hyde „... 537, 629 
 
 Owen V. Robbins 550 
 
INDEX TO CASES CITED. 
 
 XXUl 
 
 PAOH. 
 
 Owen V. Cawley, 659 
 
 Owen V. Dickenson 442, 658, 745 
 
 Owings T. Norwood 6S3 
 
 Oxnard V. Swauton 677 
 
 Ozaidv. Damford, 356, 867 
 
 P. 
 
 Faddock v. "Wells,. 839, 840 
 
 Padelfardv. Padelford, 639 
 
 Paff T. Paff. 918 
 
 Pagev. Page, 655, 591 
 
 Page T. Taylor 267 
 
 Pame, case of, 231, 399, 400, 413 
 
 Painter V. Weatherford 316 
 
 Palmer V. Danley 617 
 
 Palmer v. Fraser 474 
 
 Palmer v. Miller, 65, 74, 93 
 
 Palmer t. Horton, 526 
 
 Palmer v. Nutt 652 
 
 Palmer t. Trevor 318, 385, 387 
 
 Palmer T. Voorhls, 673 
 
 Palmer v. Wa;kefleld 334, 359 
 
 Parish T. Stowe,. 104 
 
 Parish y. Strand, 116, 332 
 
 Tark v. Barron 827 
 
 Park V. Hopkins, 369 
 
 Park V. Pratt 691 
 
 Parke V. Kleber 722, 723 
 
 Parke, B. Newry and Ennisklllen Rail- 
 way t. Coombes, 143 
 
 Parker V. Bljrthmore, 622 
 
 Parker V. Brooke, .'. 452 
 
 Parker T. Carter 414 
 
 Parker V. Elder 199 
 
 Parker T. Kleber, 345 
 
 Parker V. Lincoln,- 259 
 
 Parker v. LnSborough, 179 
 
 Parker V. Mane 704 
 
 Parker T. Paxker, 610, 831 
 
 Parker V. Simonds, 704 
 
 Parker V. Sowerby, 674 
 
 Parker v. Stuckert 493 
 
 Parkes v. White 434 
 
 Parkins v. Cox 637, 629 
 
 ParkST. Hardy 699, 604 
 
 Parks T. Cashman, 386 
 
 Parry Y. Hodgson, 252 
 
 Parsons T. Browne, 230 
 
 Parsons V. HUl, 69 
 
 Parsons T. Parsons 380, 386, 879 
 
 Parton T. Harvey, 129, 860, 861 
 
 Partridgev. Havens, 480 
 
 Partridge v. Stocker, 689 
 
 Parvin V. Capewell, 730 
 
 Paschal T. Cnshman, 803 
 
 Passmore's Heirs v. Moore, 215 
 
 Patchin v. Cromach, 87 
 
 Patterson V. Patterson, 912 
 
 Patterson v. Gaines, 845, 865, 925 
 
 Patterson v. Eobinson, 320, 720 
 
 Pattin V. Hall, 362 
 
 Pawlet V. Delaval, :. 451 
 
 Patton v.'King, 800 
 
 Paynev. Ballard, 170 
 
 Payne V. Crompton 622 
 
 Paynev. Payne, 769 
 
 Payne v. Parker, 508 
 
 Payson V. Payson, 888 
 
 Peabody v. Patten 542 
 
 Peacockv. Monk, 426, 436 
 
 Pearcev. Pearce 208 
 
 Pearson V. Darrington, 346 
 
 Peckv. Ward 719, 726 
 
 Peckham. v. Peokham 253 
 
 Pecquetv. Pecquet, 792 
 
 PeUv. Cole, 770 
 
 Pemberton v. Pemberton, 919 
 
 Pendergast v. Gwathmey 512 
 
 Pence v. Pence, 916 
 
 ii^enn V. Whiteheads, 716 
 
 Pennsylvania v. Lovell 360 
 
 Pennsylvania Co. v. Foster 717 
 
 PAGE. 
 
 Penrose V. Curren, 179 
 
 Pentland v. Stokes, 171 
 
 Pentzv, Simonsou 71S 
 
 People v. Brooks, 279 
 
 People v. Byron, 257 
 
 People v. Carpenter 321 
 
 People V, Chedary 281, 32i 
 
 People v. Oolborne, 810 
 
 Peoplev. Dean, 38 
 
 People V. Fish, Judge of Livingston Co., 163 
 
 People V. Humphrey, 278, 279, 282 
 
 Peoplev. ICearuey, 287 
 
 People V. Kendall 176, 189, 190 
 
 People V. Kling 281, 285 
 
 People V. Landt, 242, 285 
 
 People V. McNalr, 39 
 
 People V. Merceln 276, 281, 282, 287, 322 
 
 People V. MitoheU 285 
 
 People V. Moores, 140 
 
 People V. MuUin, 140 
 
 People V. N. Y. Common Pleas, .... 195, 205 
 
 People V. Oneida Common Pleas, 334 
 
 People V. Randolph 189 
 
 People V. Rose Porter, 282 
 
 People V. Slack, 127 
 
 People V. Sturtevant 310 
 
 People V. Wilcox, 259,282 
 
 Pergin V. Sutchliffe, 182 
 
 Perlnev. Dunn,.... 216 
 
 PerkinST. Cottrell, 394 
 
 Perkins V. Hammond,... 209 
 
 Perkins v. Richardson, 702 
 
 Perrln, Admr. v. Sargeant 691 
 
 Perrlu v. Blake, 459 
 
 Perrln v. Wilson -. 101 
 
 Perry v.GlU, 782 
 
 Perry v. Goodwin 607 
 
 Perryy.Perry 852, 862, 916 
 
 Perry v. Whitehead 236 
 
 Perrymanv. Buyster, 208 
 
 Peters v. Fleming, 114, 117 
 
 Peters v. Fowler,. 647 
 
 Peters v. Lord, 119 
 
 Peterson v. Laik, 72 
 
 Petre V. Petre, 292 
 
 Petrles V. Tondear, 832 
 
 PettingiU v. Butterfleld 681 
 
 Pettltt V. Fritz's Exr 717 
 
 Petty T. Mailer, 414, 770, 777 
 
 Peugnet V.Phelps., 896 
 
 Pfeifferv. Reiehn, 761 
 
 Pharis V. Leacnman, 586 
 
 Phelps V. Jepson, 648 
 
 Phelps V. Phelps 896 
 
 Phelps V. Worcester, 116, ll7 
 
 Phllbrlck V. Phllbrick, 896 
 
 Philiskirk v. Pluckwell, 375, 383 
 
 Phillips, case of, 189 
 
 Phillips v. Chamberlalne, 440 
 
 Phillips V. Green, 82, 86 
 
 PhilUps V. Phillips 532, 560, 902 
 
 Phillips V. Richardson, 336 
 
 Phillips V. Simmons 357 
 
 Physick's appeal 866 
 
 Pickard V. Roberts, 390 
 
 Piokins v. Clayton, 257 
 
 Picquet v. Swan, 479, 494 
 
 Pidgin V. Cram, 854, 476 
 
 Pierce V. Burnham 488 
 
 Pierce v. Hakes, 415 
 
 Pierce v. Messenger 151 
 
 Pierce V. Pierce, 687 
 
 Pierce v. Wannett 413 
 
 Pierce V. Williams, 600 
 
 Plerpolnt v. Lord Cheney 292 
 
 Pierson v. Plerson, 901 
 
 Pierson v. Smith, 492 
 
 Pierson V. Williams, 603 
 
 Piggott!s case, 123 
 
 Pike V. Collins 385 
 
 Pilkintou v. Cuthbertson 4aS 
 
 Pinckardv. Smith, 862 
 
 Plnkham v. Gear 588, 591 
 
XXIT 
 
 INDEX TO CASES CITED. 
 
 FAQE. 
 
 Plnkston T. Bevan 859 
 
 Plnkstonv. MoLemore, |s4 
 
 Pltohefv. Coster, 805 
 
 Pitcher Y. Layxsook, 72 
 
 Pitcher T. Turin Plank-road Co., 58 
 
 Pitt T.Jackson, 417 
 
 Plttv. Hnnt, : 869 
 
 Pitt V. Pitt, 871 
 
 Plaskett V. Beeby 217 
 
 PlattT.Platt, 913 
 
 Piatt V. St. Clair, 158 
 
 Pllmmer V. Bills 843 
 
 Plumb V.Sawyer 711 
 
 Plumerv.Lord 698, 705 
 
 Polndexter v. Blackburn, 374, 385 
 
 Pomeroy V. "Wells, 346, 348 
 
 Pomfret v. Windsor, 268 
 
 PondT. Bergh 414 
 
 Pond v. Curtlss 200 
 
 Ponder t. Graham, 884 
 
 PoolT. Dlcas, 214 
 
 PoolT. Everton, 849 
 
 Pool V. Gerrard, 762 
 
 PoolT. Gott 283 
 
 PoolT. Poole 619 
 
 PoolT.Pratt 60, 128 
 
 Poor T. Horton 
 
 PopeT. George 217 
 
 Pope T. Lemaster 172, 2S2 
 
 Popkin T. Burnstead, .-. . . 558 
 
 Porter t. Bank of Eutland 690 
 
 Porter T. Bleiler 199 
 
 Porter T. Bradley, : 709 
 
 Porter T. Judson 214 
 
 Porter T. Mount 647, 660 
 
 PorterT. Robinson, 206 
 
 Porter t. Sherburne, 143 
 
 Porter's Heirs t. Eobinson, 57 
 
 Portis V. Parker, 798 
 
 Portsmouth t. Portsmouth, 852 
 
 Posey T. Posey, 40 
 
 Posten V. Young, 255 
 
 Potier T. Barclay, 578 
 
 PotterT. Everett 584 
 
 Potter T. Wheeler, 539, 648 
 
 Powell V. Cleaver, ; 254 
 
 Powell V. Gossom, 413, 773 
 
 Powell v. Gott, 66 
 
 Powell V. Hankey 426, 451 
 
 Powell T. Mons. & Brim. Man Co., 507, 538, 
 548, 555, 610, «20 
 
 Powell T. Murray, S07 
 
 Powell T. Powell 585, 891 
 
 Powerv. Bailey, 434 
 
 Power T. Lester, 651 
 
 Power T. Power, 730 
 
 Powers V. Marshal, 364 
 
 Powys T. Mansfield, 216 
 
 Prascord V. TuUy, 204 
 
 Prather V. Clarke, 489 
 
 Pratt's Lessee v. Flamer, 224 
 
 Prescott T. Brown 319, 364 
 
 Prescott T. Case, 257 
 
 Prescott T. Norrls, 58 
 
 PriceV. Caron 217, 218, S30 
 
 Price T. Freeman, 79 
 
 Price V. Furman, 78 
 
 Price T. Hewett 181 
 
 Price T.Johnston, 685 
 
 Prlcev.Prlce 550 
 
 Price v. Price's Heirs, 773 
 
 Price T. Seys, ^ 134 
 
 Price T. Sykes, 204 
 
 Pride T. Boyoe, 558 
 
 Pride T. Earl of Bath and Montague, . . 161 
 
 PriestT. Hamilton, 205 
 
 Priest T. Cummings B81, 665 
 
 Prime T. Stebblng, 571 
 
 Primier v. Barton, 801 
 
 Princev. Prince, 917 
 
 Prince, case of, 183 
 
 • Prlndle T. Caruthers, 385 
 
 Fringlev. Gaw 730 
 
 VA.SE. 
 
 Prltts v. Ritchey,, 528, B50, 657 
 
 ProbartT. Knouth,.... IIB 
 
 Probate Judge t. Hinds, 257 
 
 Probate Judge v. Simonds, 684 
 
 Probertv. Morgan 424 
 
 ProutyT. Edgar 158 
 
 PughT.Bell, 160 
 
 Pultney T. warren, oal) 
 
 Pultney t. Darlington 669 
 
 PulTertoft T. PulTertoft, 464 
 
 Purcell T. Purcell, 912, 918 
 
 Purden T. Jackson, 380 
 
 Purdy T. Purdy 550 
 
 Puretoy T. Rogers, 546 
 
 Purtzoman t. Pitesell, 223 
 
 Putnam T. Bicknell 748 
 
 PybuST.Smith 434, 439 
 
 PyeT. Danberry, 218 
 
 Pyle T. Cravens, 47 
 
 Q. 
 
 QnadrlgT. Downs, 239 
 
 Queen V. Brighton, 840 
 
 Queen V. Hillls, 812, 816 
 
 Queen Anne's Co. v. Pratt, 674 
 
 Quincy v. Qulncy, 865 
 
 E. 
 
 Radford v. Young 371 
 
 Radnor V. Vandeburdy, •. 621 
 
 Railroad Co. v. Harris, 394 
 
 Rainwater V. Dunham, 115 
 
 Ralston v. Lahee, 172 
 
 Ralston V. Ralston, 550,633 
 
 Hamburger's Admr. v. Ingraham, 320 
 
 Rambov.Bull, 686 
 
 RamsdellT. Cralghill SM 
 
 RamsdellT. Fuller, 764 
 
 Ramsford v. Fen wick, 115, 116 
 
 Ramsford v. Freeman, 291 
 
 Ramsford t. Ramsford, 65 
 
 Randall t. Murgatroyd, 472 
 
 Randall T. RandaU, 532, 896 
 
 Randall v. Rotch, 162 
 
 Randall V. Sweet 115,676 
 
 Randall V. 'Wilson, 71 
 
 Randolph V. Simpson, 333 
 
 Rands v. Kendall, 650 
 
 Rank v. Hanna, 639 
 
 Rankin V. Oliphant, 809 
 
 Ransom V. Nichols, 366,646,658 
 
 Rapalje V. Hall 270, 271 
 
 Rateliff V. Ratcliff, 898, 903 
 
 Ratcliffv. Wales, 923 
 
 Rathbone t. Dyokman, 674 
 
 RaTLsies t. Stoddart, 7S8 
 
 Rawlins t. Adams, 562, 576 
 
 Rawlins t. Rawlins, 224 
 
 Ra-t^lins v. Van Dyke, 846 
 
 Rawllnson v. Stone, 818 
 
 Rawson v. Penn, Railroad Co., 667 
 
 Ray V. Sherwood, 840 
 
 Raybold v. Raybold, 863, 717, 718 
 
 Raymond v. Loyle, 107, 111, 113 
 
 Raynham t. Wilmarth, 594 
 
 Raynor T. Watford 160, 163 
 
 ReaT. Durkee, 855, 868 
 
 ReadT.Snell 425 
 
 Reade T. LlTingston, 479 
 
 Eeavls v. Reavls, 916 
 
 Reed v. Batchelder, 68 
 
 Eeed V. Beach, 471 
 
 Eeed T. Kennedy, 548 
 
 Reed T. Morrison, 543, 556 
 
 Eeed T. Whitney, 650 
 
 EeesoT. Chilton, 356 
 
 Eeese T. Holmes, 784 
 
 Beeves v. Long, 225 
 
 Begalav. Martin 210 
 
 Eeginav. Baldey, 849 
 
 Eeglna v. Chadwiok, 840 
 
 Eeginav. Mansfield, 233 
 
INDEX TO CASES CITED. 
 
 XXV 
 
 Regtna T. Perkins, 89 
 
 Held T. Campbell, S67 
 
 Bemlngton, caise of, 863 
 
 Renlgh v. Fogoasa, 187 
 
 Kent V. Manning, 116, 117 
 
 Eenwlok t. Renwlck, 982, 924 
 
 Eesor t. Besor, . . j 789 
 
 Kespubllca t. Kepple, 261 
 
 RevelY.Revel, 886, 886 
 
 Rex T. Brasler, 89 
 
 Rex V. Brown, 849 
 
 Rex T. BuTtou-upon-Trent, 853 
 
 Rex V. Clarkson , 478 
 
 Rex V. Comforth, 258 
 
 Rex T. FUntan, : 850 
 
 Rex T. Great Wlgston, 144, 164 
 
 ReXT. GreenhlU 276, 281 
 
 Rexv. Isley, 288, 286 
 
 Rexv.Lester, 478 
 
 RexT. Mead, 478 
 
 BSx T. MlnsheU, 856 
 
 Eexv.Neal 821 
 
 Rex V. Owen, 154, 187 
 
 Rexv. Soper 284 
 
 Rex V. St. Petrex, 144 
 
 Rexv. Sutton 190 
 
 Rex V. Taddington, 239 
 
 Rex. V. Thornton, 212 
 
 RexT.White 37 
 
 Rex. T. Williams, 89 
 
 RexT. Wroxton 862 
 
 Reynolds v. Lansford, 495, 800 
 
 Reynolds v. Reynolds, 578, 680 
 
 Reynolds, case of, .■ 121 
 
 Btaea v. Bhenner, 510 
 
 Rhodes v. Gower, 729 
 
 Riee V. Lumley 576, 922 
 
 Elce V. Durkeej 349 
 
 Rich T. Coekell, 434 
 
 Richard v. Talbalrd, 659 
 
 Richard v. Talbin, 608 
 
 Richards v. Chambers, 489 
 
 Richards v. Dudley 209 
 
 Richards v. McLelland, 315, 609 
 
 Richards T. Richards 374, 876, 377, 887 
 
 Richards V. Roberts, 381 
 
 Richardson v. Bonlght, 84 
 
 Richardson T. Daggett, 876 
 
 Richardson v. Llnney 269 
 
 Richardson V. Merrill 890 
 
 Richardson v. Richardson, 914 
 
 Richardson t. Spencer, 769 
 
 Richardson V. Wilson, 916 
 
 Ricker t. Rioker, 894 
 
 Rldantv. Plymouth 424 
 
 Riderv. Hulse 388, 637 
 
 Rider v. Kidder, „ 491 
 
 Rlddley. Bedford, i '. 179 
 
 Riddleson v. Wogan 862 
 
 Bldout T. Lewis, 426 
 
 Rlebinv. White 647, 654 
 
 Riley V. Riley 491 
 
 Riley t. Suydam 325 
 
 Ripley t. Waterworth, 531 
 
 Blttenhouse v. Levering 596 
 
 Rltter v. Ritter 722, 725 
 
 Rivers T. Gregg :••— j:.v i22 
 
 Roachv. Gowan, 243, 251, 253 
 
 Roach V. Quick, 116, 382 
 
 Roach V. Randall .■•■•• 676 
 
 Roane v. Hern 455, 464 
 
 Robbins V. Abrahams 716 
 
 Robblns v. Eaton. 78, 82, 83, 84 
 
 Robbins v. Mount, .-•■• 185 
 
 Roberts V. Higgins 65, 72 
 
 Roberta y. Smith, 568 
 
 Roberts v. Whiting 418 
 
 Roberts' Widow v. Stanton 71 
 
 Roberts, matter of, 271 
 
 Robertson v. Robertson, ..■-. 205 
 
 Robertson v. Caldwell, 828 
 
 Robertson V. Cole, 86^ 
 
 Robertson T. Cowdry, o5B 
 
 PAGE. 
 
 Robertson V. Crawford, 865 
 
 Robin V. Flanders, 586, 692 
 
 Robinson y. Bates, 657, 569, 561 
 
 Robinson v. Codman, 649 
 
 Robinson t. Cumming, 627 
 
 Robinson v. Dusgate, 440 
 
 Robinson V. Gosnold, 855 
 
 Robinson V. Hayus, 622 
 
 Robinson v, Mahon 840, 844 
 
 Robinson V. Miller, 688 
 
 Robinson V. Tlckell, 291 
 
 Robinson v. Woelpper, 386 
 
 Robinson y. Zollinger, 268 
 
 Robson V. Osborn, 198 
 
 Robey v. Robinson, 65 
 
 Robey V. Boswell, 785 
 
 Rodemeyerv. Rodman, 762 
 
 Rodney v. Chambers, ; 471 
 
 Roe v. Hersey, 34 
 
 Rogers y. Benson, 600 
 
 Rogers v. Dill, 296, 898 
 
 Rogers v. Gelder, 502, 604 
 
 Rogers V. Hurd, 87 
 
 Rogers V, Moody 666 
 
 Rogers V. Rogers, 263, 262 
 
 Rogers v. Scale, 621 
 
 Rogers v. Smitli, 443 
 
 Rogers v. Vines, 918 
 
 Rogers V. Ward, 705 
 
 Rolensy. Dixwell 417 
 
 Rolfe y. Abbott 106 
 
 Romey v. Edwards, 419 
 
 Roof v. Stafford 66, 71, 77 
 
 Roosevelt y. BUithrop, 866 
 
 Rpsallnay. Armstrong, 286 
 
 Rose v. BeU 642 
 
 Rose v. Clark 818, 865 
 
 Rose y. Daniel 68, 167; 170 
 
 Ross v. Cobb,... 248, 245 
 
 Rossv. Garrison 602, 504 
 
 Ross V. Gill 261 
 
 Ross V. Ross 616 
 
 Ross V. Wharton 385 
 
 Rossv. Wllloughby, 471 
 
 Rossv. Winners 325, 334 
 
 Rossiterv. Cossit, 543 
 
 Rotch y. Miles, 348 
 
 Rowe V. Johnson, 688 
 
 Rowev. Kohle, 762 
 
 Rowe v. Power 588, 601 
 
 Rowleyy. Dickson, 668 
 
 Roylstony. Roylston, 785 
 
 Rudv. Batohelder, 89 
 
 Rnltchv. Cunningham, 594 
 
 Rumdel V. Keeler 102, 118 
 
 Rumneyy. Keyes, 855 
 
 Runyany. Stuart 543, 644 
 
 Rnsev. Cochran, 738 
 
 Russ V. George, 685 
 
 Russell, case of, 48, 184 
 
 Russell V.Austin 544, 560, 607, 628 
 
 Russell V. Brooke 296, 319, 362 
 
 Russell v. Gee : 611 
 
 Russell y. Russell, 918 
 
 Rutledge V. Rutledge 882, 889 
 
 Ryan y. Ryan 907 
 
 Eyber v. Thorp, 266 
 
 Ryder, matter of, 294 
 
 Rye y. Poljamb, 873 
 
 Ryesouv. Grover, 211 
 
 Sabine y. Gilman, 264 
 
 Sackettv. Wray, 438 
 
 St. Clair V. Smith 205 
 
 St. Clair V. Williams 608 
 
 St. John y. St. John, 471, 472, 486 
 
 St. John v. Turner 170 
 
 Salev.Sale, ■. 201 
 
 Salisbury v. Van Hoesen, 267 
 
 Salmon V. Cntts, 97 
 
 Sammes V. Payne, 405, 407 
 
XXVI 
 
 INDEX TO CASES CITED. 
 
 PAOE. 
 
 SandbankT. Qulgley, 685 
 
 Sandtord v. McLean 575, 626 
 
 Sandford v. Jackson 567, 669, 533 
 
 Sands v. Stockton, 105 
 
 Sargeant V. French 207 
 
 Sargeaut v. Roberts, 601, 605 
 
 Saunderson V. Marr, 47, 180 
 
 Sasputas v. Jennings 847 
 
 Satterthwaite v. Powell, 639 
 
 Satterthwalte v. Greeley, 479 
 
 Savage T. Burnbam, 673 
 
 Savage V. Davis, 748 
 
 Savage V. King, 376 
 
 Savage T. O'Neill 639, 670 
 
 Savery V. Gardener, 362 
 
 Savoie V. Ignogoso, 934 
 
 Sawtelle v. Sawtelle, 900 
 
 Sayre v. AVlsner, 681 
 
 Scanlar V. Turner, 656 
 
 Scarpillini v. Atcheson, i... 376 
 
 Sohalt's appeal, 585 
 
 Sohefonling V. Hufifmau, 464 
 
 Schermerhorn v. Jenkins 194 
 
 Scbermerhorn V. Miller, 416 
 
 Schetzler v. Schetzler, 896 
 
 Scbindell v. Schlndell, 469, 734 
 
 Scbnebly V. Scbnebly, 637 
 
 Scbueider v. Staihe, 52, 122 
 
 Schoenberger v. Zook 315, 509 
 
 Soholefleldv. Heafleld 216, 218 
 
 Soholey v. Goodman 476 
 
 Scbultz V. Daruebman, 463 
 
 Schuyler v. Hoyle, 338, 385, 386 
 
 Scott V. Duncan, 462 
 
 Scott V. Houghten 169 
 
 Scott V. Howard, 575, 584 
 
 Seottv. Purcell, 738 
 
 Scott V. Simes 377,378, 657 
 
 Scott V. Scott, 699 
 
 Scott V. Loralne, 457, 472 
 
 Scott V. Watson, '176 
 
 Scott V. Schufeldt, 854, 858 
 
 Seottv. Hancock, 603 
 
 Scott V. Ward 760 
 
 Screven V. Blunt, 374 
 
 Scrimshire v. Sorimshire, 814 
 
 Soroggins v. Scrogglns, 893 
 
 Scull V. Jernigan, 308 
 
 Seaborn v. Maddy, 106 
 
 Seagrave V. Seagrave, 476 
 
 Seaman v. Duryea, 2B5 
 
 Seaman, matter of, 307 
 
 Searing V. Searing, 382, 384 
 
 Seaton v. Benedict, 341 
 
 Seaton v. Jamison; 609 
 
 Segrant v. Steinberger, 648 
 
 Selkring v. Davies, 533 
 
 Seller v. Seller 909 
 
 Sellman v. Bowen, G25 
 
 Selover v. American Russian Co., 763 
 
 Selvon V. Commercial Co., 512 
 
 Sensor v. Bower, 886 
 
 Sentney V. Overton, 170 
 
 Sergeant v. Steinberger, 503 
 
 Serle v. St. Eloy, 202 
 
 Severn v. Severn 921 
 
 Sexton V. Fleet, 665 
 
 Hewall V. Lee, 521, 52B 
 
 Sexton V. Pickering, 610 
 
 Shaefer v. Gates 205 
 
 Shaftsbury V. Hannam,... ' ' ' 263 
 
 Shaller v. Brand, 565 
 
 Shanks v. Dupont, ." . ! ! i i i ' . ,S30 
 
 Shanks v. Lancaster, .'.'.'.'.' '." 507 
 
 Shannon V. Carney, 681 
 
 Share v. Anderson, '..'.'" '656 
 
 Sharman V, Sliarman,... . 887 
 
 Sharp V. Pettit,.' 009 
 
 ghattiick V. Gregg ".■.'.■.■.■.■.'■536', 588 
 
 Shaverv. Boyd, 690 
 
 ShawT.Boyd, 134,"662, 565 
 
 Shaw T. Hursey, 601 
 
 Shawv. Ross, ;." 667 
 
 PAGE. 
 
 Shawv. Partridge 394 
 
 Shawv.Buss, 608 
 
 Shaw V.Shaw 886 
 
 Shaw V. Thaokary 829 
 
 Shawv. White 609 
 
 Shaw, matter of, oOS 
 
 Sheafe V. Sheafe 913, 915 
 
 Sheafe V. Laighton, 916 
 
 Sheafe V. O'lfeil 694,595, 616 
 
 Sheffield v, Buckingham, 217 
 
 Sheldell v. Welshlee 721, 722 
 
 Sheldon V. Bliss 574 
 
 Sheldon v. Benham, 214 
 
 Sheldon V. Newton, 132 
 
 Shell V. Shell, 893 
 
 Shelley, case of, 457,458,459 
 
 Shelly V, Westbrook, 243 
 
 Shelthar v. Gregory, 353, 472, 475 
 
 Shelton V. Carroll 686 
 
 Shelton V. Pendleton, 346 
 
 Shelton V. Springett 106,107 
 
 Shepard v. Hibbard, 205 
 
 Shepard V. Howard, 556 
 
 Shepard V. Kendle, 782 
 
 Shepard v. Shepard, 492 
 
 Shepard V. Starkle 334 
 
 Shepard V. Wordell, 666 
 
 Sherman V. Elder, 643 
 
 Sherwood V. Sherwood, 712 
 
 Sherwood v. Vandenburgh, 690 
 
 Sherwood v. Vanderhougn, 613 
 
 Shewen V. Wroot 192 
 
 Shield V. Bates, 584, 586, 695 
 
 Sheffer V. O'Nell 586 
 
 Shim V. Holmes, 719 
 
 Shipbrook v. Hinchinbrook 243 
 
 Shipman V. Horton, 69, 71 
 
 Shirley V. Hagar, 193 
 
 Shirley V. Shirley, 362,431 
 
 Shirtzv. Shirtz, 538, 611 
 
 Shoemaker v. Walker, 549 
 
 Short V. Moore 386 
 
 Shortv. Tinsley, 325 
 
 Shotwell V. Sedam, 666 
 
 Shrewsbury, case of, 121 
 
 Shrewsbury v. Shrewsbury, 547 
 
 Shropshire V. Reno, 206 
 
 Shumway v. Cooper, 335, 366, 416 
 
 Sidneyv. Sidney 430 
 
 Slglar V. Van Riper, 584 
 
 Shuttleworth V. Noyes, 383 
 
 Slgourn^ V. Munn 532 
 
 Sifces V. Johnson, 183 
 
 Sillick V. Booth, 629 
 
 Simaweaver V. Stoever, 566 
 
 Simmons v. Simmons, 71 
 
 Simms V. Norris, 102 
 
 Simms V. Horwood 452 
 
 Simonton v. Gray, 643 
 
 gimpson v. Simpson, 330 
 
 Slmpus V. Sloan, 763 
 
 Sinclair v. Sinclair, 192 
 
 Singleton v. Singleton, 586, 603 
 
 Sip V. Lanbach 600 
 
 Sipperly, matter of, 020 
 
 Sishv.Smith, 666 
 
 Slstare v. Slstaro, 531 
 
 Siter V. McCanahan, 394 
 
 Skillman v. Skillman, 714 
 
 Skinner's appeal, ; 386 
 
 Slanning v. Style 489 
 
 Slawsonv. Beardsley, 735 
 
 Slawson V. Loring 704 
 
 Sleight V. Read, 638 
 
 Sliver V. Shelback 69,211 
 
 Sloan V. Kane, 863 
 
 Sloan V. Whitman, 691 
 
 Slocum V. Hooker, 47,59, 61 
 
 Slooum V. Glnbb, 136 
 
 Small V. Small, 894 
 
 Small V. Dee 168 
 
 Small V. Proctor, : 548, 614 
 
 Smalley V. Smalley 184 
 
INVEX TO CASES CITED. 
 
 XXVU 
 
 PAGE. 
 
 Smart V. WhsUey, 620 
 
 Smart v. Ilbury 848 
 
 Smith V. Addleman, B38 
 
 Smith T. Bean, 115 
 
 Smith V. Bird, 703 
 
 Smith V. Bowln, 60 
 
 Smith V. Camalford, 451 
 
 Smith V. Oolvln 894 
 
 Smith V. Eustls, 543 
 
 Smithy. Floyd , 208 
 
 Smith T. Gardner 623 
 
 Smith v. Hewitt, 7B1 
 
 Smith T. Ingalls, 613 
 
 Smithy. Kane 892 
 
 Smith V. Kinlskern, 668 
 
 Smithy. Knowles, 889 
 
 Smlthy.Long, 768 
 
 Smithy. Low, 18B, 293 
 
 Smith y. Maxwell 559 
 
 Smith y. Mayo, 69,' 86, 87, 89, 96 
 
 Smithy. Moore, 463 
 
 Smithy. Oliphant, 115 
 
 Smithy. Paysenger, 615 
 
 Smith y. Philbrlcli, 866 
 
 Smith y. Poy threso, 786 
 
 Smith y. Sllmer, 752 
 
 Smith V. Smith, 194, 288, 263, 324, 533, 662 
 609, 763, 890, 896, 897, 905, 913, 923 
 
 Smith y. Strahan, 795 
 
 Smithy. Van Houter, 194 
 
 Smith y. WiUlamson, 248 
 
 Smith V. Wilson 768, 775, 778 
 
 Smith y. Woodworth 845 
 
 Smith y. Yonng, 101, 102 
 
 Smith's appeal, 730 
 
 Smoot y. Le Cott, 413, 480, 421 
 
 Snelson y. Corbett, 423, 484 
 
 Sneyd y. Sneyd, 603 
 
 Snooky. Sutton, 261 
 
 Snow y. Cutler, 235 
 
 Snowy. Steyens, 548 
 
 SnowhUl y. SnowhiU, 299, 374, 385 
 
 Snydery. Webb, 643, 544, 768 
 
 Somersety. Dighton 842 
 
 .Somes y. Skinner, 264 
 
 Sopwithy. Sopwith, 408 
 
 South y.v.Thomag, 170 
 
 Southard y. Piper 677 
 
 Sparhawky. Buell, 34 
 
 Sparrow y. Kingman,. ... _ 613 
 
 Spanldingv. Day, 699 
 
 Spencer y . Bangs, 218 
 
 Spencer y. Gtoodwin 433, 788 
 
 Spiers' appeal, 484 
 
 Spinxer y. Berey 676 
 
 Spreadbury y. Seaton, 342 
 
 Sprlngle y. Shields 686 
 
 Sproule y. Botts, 208 
 
 Squib y.Wyn, 366, 869 
 
 Squler v. Compton, 617 
 
 Sqnlery. Dean, 451 
 
 Squler y. Whipple, 151 
 
 Stacker y. Whltlock, 775 
 
 Stafford y. Buckley, 531 
 
 Stafford y. Koof, 42, 69, 199 
 
 Stafford y. Stafford 911 
 
 Stall y. Fulton, 714 
 
 Stammers y. M:cComb, 343 
 
 Stanley y. Greenwood 803 
 
 Stanton y. Wilson 110, 115, 117 
 
 Stan wood v. Dunning, 538, 548 
 
 Stanwood y. Stanwood, 363, 373 
 
 Stapeltony. Stapelton, 202 
 
 Starry. Peck, 866 
 
 State y. Aaron, 187 
 
 State y. Brady 842 
 
 State y. Barlingham, 821 
 
 State y. Cheeseman, 286 
 
 State V. Clark, 34 
 
 Statey. Cloyer 283 
 
 State y. Dimiok, 143 
 
 State y. Doherty, 187 
 
 Statey.Fore 841 I 
 
 PAGE. 
 
 State y. Grlsham, , 861 
 
 Statey. Guild 185, 188, 213 
 
 Statey, Hooper, 841 
 
 State V. Jolly, 928 
 
 Statey. Le Blanc, 39 
 
 State V. Managers of Election, 535 
 
 State y. McKhlght, 159 
 
 State V. Milton, 843 
 
 State y. Murphy, 868 
 
 State y. Nelson 860 
 
 State y. Oland 841 
 
 State V. Parkerson, 361 
 
 State V. Pellaway 233 
 
 State y. Phelps 324 
 
 State y. Boss, 625 
 
 Statev.Shaw, 840 
 
 State y. Smith, 881, 283 
 
 State V. Walters, 841 
 
 State V. Whlttier 39 
 
 Stead y. Nelson, 440 
 
 Steadmauy. PuUIng,.., ■. 417 
 
 Stearns y. Swift, 655, 610 
 
 Stearns v. Stearns, 691 
 
 Steadmany. WUbur 709 
 
 Stedfasty. NlchoU, 224, 239 
 
 Steedmau y. Poole, 432 
 
 Steedman v. Bose, 119 
 
 Steele y. Lewis, 518 
 
 Steele y. Thompson, 666 
 
 Stehmany. Huber, 498, 736 
 
 Stegally. Stegall, ; 233, 529 
 
 Steigerv. Hillen, 608, 635 
 
 Stein y. Bowman,... 323 
 
 Stelnmany. Ewlng 728 
 
 Steinmitz y. Halthln, 380 
 
 Stemple y. Hermlnghouser 623 
 
 Stennett y. Wyun, 484 
 
 Sterling v. Potts 1 843 
 
 Stephens y. Heme", 415 
 
 Stephens y. Van Buren, 173, 303 
 
 Stephenson y. Stephenson, 173 
 
 Sterkiev. Sterkie 254 
 
 Sterling y. Plalnfleld, 39 
 
 Steyens y. Poss, 143 
 
 Steyens y. Owen 536, 665 
 
 Steyens y. Sayage, 137 
 
 Steyens y. Smith 548, 626, 773 
 
 Steyens y. Steyens, 308, 594, 600 
 
 Stevenson y. Dunlap, 533 
 
 Steyenson y. Hardy, 344 
 
 Steyenson y. Townsend 638 
 
 Steyenson y. Westfall, 34 
 
 Stewart y. Ball's Admr., 754 
 
 Stewart y. Beard, 643 
 
 Stewart y. Jenkins, 704 
 
 Stewarty. MeMartm 684 
 
 Stewart y. Stewart, 367, 465, 889 
 
 Stewart y. Wilder, 775, 776 
 
 Stiles y. Stiles 737 
 
 StlUeyy, Folger, 660,667 
 
 Stillmany. Dawson,... 183 
 
 Stillmau y. Ashdown, 157, 846 
 
 Stillwelly. MUls :.. 366 
 
 Stlmsonv. White, 747 
 
 Stinebanghv. Wisdom, 773 
 
 Stinsouv. Sumner, 569 
 
 Stirllngy. Adams, 184 
 
 Stiyery. Cawthorn, 595 
 
 Stoatev. Stoate, 913 
 
 Stober's Admr. y. MeCarter, 326, 328 
 
 Stoeoto y. Stoecto, 173 
 
 Stokes v. Brown, 91 
 
 Stokes y. Hatcher 151 
 
 Stokesy. MoAlister, 586 
 
 Stone y. Dennison, 103, 105 
 
 Stone V. Guthrie, 776, 777 
 
 Stone y. McNair, 344 
 
 Stone y. Stone, 90S 
 
 Stone y. Wlthlpool, 116 
 
 Stover y. Stover, 911,918 
 
 Stoolfoos V. Jenkins, 67, 180 
 
 Stoops y. Blackford 816,318 
 
 Stoppelbeln y. Shulte, 543 
 
XXVlll 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Story T. Story, 912 
 
 Storyv. Mitchell, 800 
 
 Story V. Perry, 101, 118 
 
 Stoughton V. Lee, 899, 530, 5S7, 599, 604, 617, 630 
 
 Stowv. Tift 587 
 
 Stowell V. Zouch, 161, 175, 189 
 
 Strain v. "Wright 77 
 
 Stratford V. TSoynam 603 
 
 Streatfleld V. Slreatfleld, 458 
 
 Stribbllng V. Boss 661, 574 
 
 Striiigfle;d V. Hirskill, 151 
 
 Strong V. Arden, 454 
 
 Strong V. Clem, 653 
 
 Strong V. Skinner, 442, 443, 465 
 
 Strong V. Smith 386 
 
 Strong V. WUkln, 455 
 
 Stuart V. Elssam 482 
 
 Stuart T. Riokwell, 474 
 
 Stuart V. Simpson 156 
 
 Stubbs V. Roth, 370 
 
 Stucky V. Keefe's Exr 385, 583 
 
 Stumps V. Kllby, 194 
 
 Sturgeneyer v. Hannah, 375 
 
 Sturgis V. Ewing, 574 
 
 Sturgis V. Coop, 434 
 
 Suiter V. Turner, 432 
 
 Sullivan V. Sullivan 854, 856 
 
 Summers v. Babb 561, 584 
 
 Sumner v. Partridge 408 
 
 Sumner v. Conant,... 508 
 
 Sutherland v. Gofi; 263 
 
 Sutliffe V. Forgey 521 
 
 Sutton V. Bolf, 548 
 
 Sutton V. Sutton, 783 
 
 Sutton V. Warren; 841 
 
 Swan V. Horton, 69 
 
 Swaine v. Ferine 560, 561, 623, 633 
 
 Swanv. Grey,. 376 
 
 Swannock V. Lyford, 621 
 
 Swartwout V. Burr, 309 
 
 Swesey V. Vanderheyden, 103 
 
 Sweet V. Penrice, 342 
 
 Sweet V. Partridge, 215, 219 
 
 Sweet V. Sweet, 295 
 
 Sweetapple V. Bindon, 417 
 
 Swift V. Bennett, 115, 117 
 
 Swift V. Castle 743 
 
 Swift V. DufQeld,... 224 
 
 Swift V. Luce, 678 
 
 Switzer v. Valentine,.. 497 
 
 Sykes V. Halstead, 347 
 
 Sylvester V. Balston 248, 263 
 
 Sym'scase, 369 
 
 T. 
 
 Tabb V. Archer, 136, 459, 460 
 
 Tabb V. Boyd 333 
 
 Tabb V. "Wiseman, 348 
 
 Taftv. Pike 77 
 
 Taftv. Seraeant, 88 
 
 Talbot V. Earl of Shrewsbury, 286 
 
 Taliaferro v. Burwell, 408 
 
 Tandy v. Masterson 62 
 
 Taner V. Ivie 208 
 
 Tanner v. Niles, 541 
 
 Tapley V. Tapley, 750 
 
 Tasker v. Bartlett, 557 
 
 Tatum V. Hines,. 703 
 
 Taul V. Campbell, S03 
 
 Tawney V. "Ward,. 440 
 
 Taylor v. Beydall, 224 
 
 Taylor v. Birmingham, 665 
 
 Taylor v. Brodei'lo, 5.S3 
 
 Taylor v. Dlpaok, 528 
 
 Taylor v. Gould, 415 
 
 Taylor v. Henrloot, 457 
 
 Taylor, matter of, 80,5 
 
 Taylor v. Phillips, '". 296 
 
 Taylor V. Simpson, ' 435 
 
 Taylor v. Taylor 167 
 
 Taymau v. Tayman, " 912 
 
 Teagne v. Dendy," 295 
 
 319 
 
 479 
 
 Teal V. Woodworth, 
 
 Teasdale v. Beaborne 
 
 Teft V. Sergeant 62, 
 
 Teller v. Bishop, 
 
 Tellman v. Bowen, 
 
 Temple v. Hawley, 134, 135, 460, 
 
 Tenbrook v. McColm, 
 
 Teneick v. Flagg,...^. 
 
 Terry v. Brandon 
 
 Tevis V. McCreary 
 
 Tnaeton v. Houseal, 
 
 Thatcher v. Howland 
 
 Thayer v. Lane, 
 
 Thayer v. Thayer, 661, 
 
 Theaker, case of, 
 
 Thelluson v. "Woodford 224, 226, 
 
 Therrlott v. Bangiver, 
 
 Thomas v. Bennett 
 
 Thomas v. Brinsfield,.... 
 
 Thomas v. Brown, 
 
 Thomas v. Dyke 
 
 Thomas v. Farwell, 
 
 Thomas v. Gomel, 
 
 Thomas v. Gyles, 
 
 Thomas v. Simpson, 
 
 Thomas v. "Wood, 
 
 Thompson v. Boyd, 
 
 Thompson v. Donaldson, 
 
 Thompson v. Egbert, 
 
 Thompson v. Ellsworth, 
 
 Thompson v. Ketcham 
 
 Thompson v. Lay, 
 
 Thompson v. Lay 
 
 Thompson v. Lee, 
 
 Thompson v. Lyon, 
 
 Thompson v. Morrow, 538, 656, 611, 
 
 Thompson v. Peebles 
 
 Thompson v. The State, 
 
 Thompson v. Thompson 
 
 Thompson v. Trevannlon, 
 
 Thornberry v. Thornberry, 
 
 Tnorndell v. Morrison, 719, 
 
 Thornton v. Dixon 
 
 Thornton v. lUingworth, 
 
 Thornton v. Kuapp's Exrs 
 
 Thorpe v. Eyre, 
 
 Thrasher v. Tuttle, 
 
 Thrupp v. Fielder, 
 
 Tiff v. Bartlett .»a 
 
 Tlfft v. Porter 608 
 
 Tifton V. Tifton, 53 
 
 Tilley v. Damon 849 
 
 TlUlnghast's Admr. v. Holbrook 700 
 
 Tillman V. Shakelton,....- 737 
 
 TiUotson, matter of, .m 
 
 Tilson V. Thomson, 696 
 
 Tilts V. Foster, 865 
 
 Timbres V. Katx, 378 
 
 Timmlngs V. Tlmmlngs 902,903, 910 
 
 Tinker V. Beach, 701 
 
 Tinuey V. Tinney, 668 
 
 Tinsley V. Koel, 770 
 
 Tipping V. Tipping 423, 425 
 
 Titus V. Neilson 542 
 
 Tlver V. Richardson, 389 
 
 Tobias V. Ketcham, 674 
 
 Todv. Baylor 510,538,609,611, 624 
 
 Todd v. Beatley 686 
 
 Todd V. Kerr, 927 
 
 Todd V. Lee 445,446, 447 
 
 Todd V. Stokes 351 
 
 Todd's appeal, 481 
 
 Tolenv. Tolen 897 
 
 Tompkins V. Fonda 58o 
 
 Toombs V. Stone 709 
 
 Topley V. Topley's Admr 718 
 
 Torrey V. Torrey 385, 499 
 
 Totten V. Stuyvesant, 548 
 
 Toulmln v. Heidelberg 511 
 
 Towers v. Hayne, 495 
 
 Town V. "Wiley 178 
 
 Townes v. Durbln 779 
 
 Towney V. Sinclair, 469 
 
 749 
 609 
 464 
 
 558 
 172 
 580 
 228 
 227 
 
 193 
 443 
 555 
 215 
 730 
 574 
 5513 
 528 
 5W 
 
 62 
 87 
 869 
 122 
 612 
 5S6 
 
 631 
 87 
 409 
 387 
 375 
 87 
 
INDEX TO CASES CITED. 
 
 XXIX 
 
 PAGB. 
 
 Townley ■*. Bldwell, 533 
 
 Townsend V. Grlfllu, 809 
 
 Townsend V. Maynard, 7S7 
 
 Townsend V. Townsend 595, 508 
 
 Townsend V. Wyndham, 426 
 
 ■ Townsley V. Chapln, 6SB, 698, 702 
 
 Tracy V. Hereford, 547 
 
 Tracy v. McArlton, 834 
 
 Trapnall v. State Bank, 70 
 
 Trask V. Stone 198 
 
 Treble v. Archer, 135 
 
 Treibau v. Lawrence, 336 
 
 Tremain, case of, 260 
 
 Trevor v. Trevor, 458 
 
 Trimble v. Eiea, 864, 494 
 
 Trlttv. Colwell. 379 
 
 Troughton v. HUl, 441 
 
 Trowerv. Bla;ke, 224 
 
 Truss V. Old, 261 
 
 TubervlUe v. Whltehouse,... 54, 114, 116, 119 
 
 Tucker v. Magee, 152 
 
 Tucker v. Ctordon .< 385 
 
 Tucker v. Moreland, 43, 64, 72, 82, 85, 87 
 
 Tuder v. Samyne, 368 
 
 Tugman v. Hopkins, 434 
 
 TuUett V. Armstrong 432, -437 
 
 TuUey V. Alston, B49 
 
 TulUs V. Frldley, 750 
 
 Tunno v. Trezevant, 462 
 
 Tupper V. Cadwell, 116 
 
 Turner v. Cove, 325 
 
 Turner v. Meyers 827, 828 
 
 Turner v. Omeyns, 830 
 
 Turner V. Partridge, 193 
 
 Turner v. Kookes, 354 
 
 Turner V. Trisley, Ufi 
 
 Turner v. Warwick, 473 
 
 Turner, matter of,'. 294, 368 
 
 Turney v. Sturgis, 602 
 
 Turpln's Admr. v. Turpin, 299 
 
 Tursleyv. Fltzbardlnge, 228 
 
 Turtle V. Muncy, 319, 362 
 
 Turton V. Turton, 902, 908 
 
 Tuttle V. Garnett, 173 
 
 Tweddell v. TweddeU 292 
 
 Tyler v. Lake 333, 428 
 
 T^fler V. Tyler 37 
 
 Tyrell, case of, 490 
 
 Tyson v. Tyson, 459, 472 
 
 U. 
 
 391 
 
 Udall V. Kenney, 
 
 TJlp V. Campbell, ; 719 
 
 Underhill v. Dennis, 259 
 
 Underwood V. Warner, 498 
 
 United States v. Bainbrldge, 142, 143, 176 
 
 United States T. Green^.. 281 
 
 United States Bank v. Dunseth, 582 
 
 United States Bank v. Ennls „.. 479 
 
 United States Bank v. Bltchle, 206 
 
 Urban v. Grimes 85, 97 
 
 Urmston v. Newcombe, 110 
 
 Utsler V. Utsler 885 
 
 Uvedale V. Uvedale 217 
 
 Vail V. VaU 454 
 
 Vallance v. Bausch, 367 
 
 Valleau v. Valleau, 844 
 
 "Van Arsdale v. Fauntleroy's Heirs 773 
 
 Van Arsdale v. Van Arsdale, 674 
 
 Van Branier v. Cooper 59, 207 
 
 Van Buren v. Font, 186 
 
 Vance v. Vance, 557, 563 
 
 Vanderheyden v. Mallory 336 
 
 Van Doren v. Van Doren 611 
 
 Van Dorn v. Young,...._.». 166 
 
 Van Duser v. Van Duser, 138, 934 
 
 Van Duyne v. Thayer, 542, 615, 623 
 
 Van Ellen V. Carrier, 643 
 
 Van Epps V. Van Deusen, 380, 389 
 
 5* 
 
 PAGE. 
 
 Van Home, matter of, 888 
 
 Vanhouten, case of, 264 
 
 Vanleer v. Vanleer, 890 
 
 Van Maren v. Johnson, 768 
 
 Van Nostrand v. Wright, 61, 505 
 
 Van Orden v. Van Ordeu, 568 
 
 Van Pelt V. Corwiue, 73 
 
 VauSohalckv. Stuyvesaut, 141 
 
 Van Sickle v. Van Sickle 645 
 
 Van Steenbergh v. Hoflinan, 816 
 
 Van Valkenburgh V. Watson,... .» «. 107 
 
 Van Vronker v. Eastman, 542, 5(14 
 
 Van Wert V. Benedict, 720 
 
 Van Winkle v. ICetcham 52, 54, 57 
 
 Van Wyck, matter of, 266 
 
 Varney v. Young, 102, 107 
 
 Varnum V. Abbott, 501 
 
 VartiJB V. Underwood 449, 642 
 
 Vasse V. Smith „ 177 
 
 Vaughn v. Parr, Bl 
 
 Vent V. Osgood, 43, 57 
 
 Vernon, case of, 571, 602 
 
 Versailles V. Hall 154 
 
 Vignas V. Vignas, 894 
 
 Vincent v. Parker 397 
 
 Vincent V. Spooner, 566 
 
 Vizoneau v. Pegram, ...i. 441, 443 
 
 Voorhees v. Voorhees, 33 
 
 Vrooman v. Shepherd, 414 
 
 W. 
 
 Wade V. Grimes, 388 
 
 Waggv. Gibbons 484 
 
 Wagner V. Bill, 359,360, 361 
 
 Wagstaffv. Smith 434 
 
 Wailing V. Toll, 102, 116 
 
 Waithman v. Wakefield, 342 
 
 Walt V. Wait 270, 271, 574, 578 
 
 Walce V.Wake 566, 569 
 
 Wakefield V. Mackay, 850 
 
 Waldron, matter of, 281 
 
 Walker V. Davis, 182 
 
 Walker V. Ellis, 74 
 
 Walker V. Ferrm 207 
 
 Walker V. Griswold, 542 
 
 Walker V. Hall, 539 
 
 Walker v. Leighton, 891 
 
 Walker V. Keamy, 363,717, 718 
 
 Walker V. Schuyler, 537,538, 609 
 
 Walker V. Simpson 115, 344, 356 
 
 Walker V. Smith, 788 
 
 Walker V. Swazey, 665 
 
 Walker V. Walker, 912 
 
 Walker v. Wetherell 292 
 
 Wall V. Clark 801 
 
 Wall V. Hill 611, 615 
 
 Wall V. Scales 461 
 
 Wall V. TomUnson, 375, 380 
 
 Wall V. Williams 929 
 
 Wall V. WUUamson 925 
 
 Wallace v. Auldejo 891 
 
 Wallace v. Bassett, 646 
 
 Wallace v. Bowen, 689 
 
 Wallace v. Hall 585 
 
 Wallace v. Morss, 182 
 
 Wallace v. Taliaferro 386 
 
 Walllngsford V. Wallingsford, 918 
 
 Wallls V. Harrison , 384 
 
 Walsh V. Barret 214 
 
 Walsh V. Kelley, 580 
 
 Walter v. Hodge 491, 492 
 
 Walters v. Jordon, .■ 579 
 
 Walton V.Hill 396 
 
 Wamith v. Cooper, 60 
 
 Wamsley v. Lindenlleger, 62 
 
 Wand V. Wand, 887 
 
 Warburton v. Warburton,.... 674 
 
 Ward V. Crotly, 769 
 
 Ward V. Dulaney, 829 
 
 Wardv. Kilts 582, 593 
 
 Ward V. Servoss, 655 
 
 Wardv. St. Paul 253 
 
XXX 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 "Wardv. Ward, '. 201, 2T8 
 
 Warden v. Goooli 486 
 
 Warev. Hagner, 436 
 
 Ware v. Brush; 169 
 
 Warfleld V. Bavesles, 788 
 
 Warring V. Crane, 808 
 
 Warren t. Twilley 640 
 
 Warrington V. Vates, 380 
 
 Washburn V. Hale 319, 363 
 
 Washburn V. Washburn, 891 
 
 Wasfclngton V. Huger 160 
 
 Waterman v. Matteson 710 
 
 Waters v. Bean, 785 
 
 Waters V. Goooh 609 
 
 Watkins V. Abrahams, 320 
 
 Watldns V. Peck 261 
 
 Watkins V. Stevens, 87 
 
 Watkins V. Watkins 463,470, 580 
 
 Watkins, matter of, 596 
 
 Watson V. Bailey, 509, 666 
 
 Watson V. Clendenin 543 
 
 Watson V. Cheshire, 441 
 
 Watson V. Fraser 201 
 
 Watson V. Thurber, 736, 737 
 
 Watson V. Tralkeld 340, 344 
 
 Watson V. Watson, 591 
 
 Watts V. Ball 399, 416 
 
 Weaver V. Gregg 540, 563 
 
 Weaver V. Jones, 73 
 
 Weaver v. Stokes, 213 
 
 Weaver V. Crenshaw 616 
 
 Webb v. Hall, 678 
 
 Webb V. Townsend, 636,, 610 
 
 Webster v. Gould, 398 
 
 Webster v. Hildreth, 494, 688 
 
 Webster v. Webster, 475 
 
 Wedge v. Moore, 613 
 
 Weed V. Beebe, 77 
 
 Weems v. Weems, 733 
 
 Weidon V. Timbrell, 477 
 
 Weir V. Humphries 547 
 
 Weirv. Tate, 548 
 
 Weisbrod v. Chicago & N. W. B. E. Co., 748 
 
 Weisler v. Probasco, 328 
 
 Welch V. Anderson, 567 
 
 Welch v. Chandler, 773 
 
 Welch V. Welch 898 
 
 Weldv. Chamberlayne, 813 
 
 Weld V. Rnmuey 207 
 
 Welde V. Welde, 864 
 
 Welden v. Welden, 332 
 
 Weller v. Weller, 411 
 
 Wells V. Beall, 624 
 
 Wells V. Martin 526 
 
 Wells V. Price, 137 
 
 Wellsv. Stout, 476 
 
 Wells V. Street, 469 
 
 Wellsv. Treadwell, 495 
 
 Westv. Moore, 176 
 
 West v. West, 443, 464 
 
 Westv. Gregg's Admr., 114 
 
 Westervelt v. Gregg, 367, 637 
 
 Westfall v. Jones 859 
 
 . Westfall V. Lee 555 
 
 Westmeath V. Salisbury, 468 
 
 Westmeath v. Westmeath 919 
 
 Wetmore V. Kissam 185 
 
 Whaley v. Eliot 159 
 
 Wharton v. McKenzie, 114, 117 
 
 Wheatley V. Calhoun, 513 
 
 Wheatley v. Best 547 
 
 Wheaton v. East 43, 51, 84, 92, 98 
 
 Wheeler V. Alderson, 830 
 
 Wheeler V. Hotohklss 421, 932 
 
 Wheeler v. Bowe 386 
 
 Wheeler V. Jennings, 770 
 
 Wheeler v. Moore, 886 
 
 Wheeler V. Morris, ' Hiij' 624 
 
 Whlchoote v. Lyle, 460 
 
 whispeiiv.whispeii i"::.":::::"; 905 
 
 Whltaker v. Blair, 443 512 
 
 Whltaker v. Marian, 308 
 
 Whltaker V. Whltaker 335|"366; 374 
 
 PAQE. 
 
 Whltaker, matter of, 251 
 
 Whitall V. Clark 441 
 
 Whitcomb v. Sutherland 744 
 
 White V. Albertson, 203, 206 
 
 White v. Crew, 859 
 
 White v. Cutler 536, 610 
 
 White V. Dorrls, 754 
 
 White V. Hildreth 688 
 
 White V. Latimer, 35 
 
 White V. NcNett 659 
 
 White V. Parker 262, 263 
 
 White V.Story, 446, 593, 699 
 
 White V. Wager, 639 
 
 White V. White 170, 558, 668, 617 
 
 White V. Wmis 536, 610 
 
 White V. Zane,. 364 
 
 Whitehead v. Clynch 626 
 
 Whltescarver v. Bonney, 460 
 
 Whltesides V. Davis, 389 
 
 Whitfield V. Hales 243 
 
 Whitfield V. Taylor 671 
 
 Whithed V. Mallory 662 
 
 Whiting V. Stevens,., 609, 532 
 
 Whiting v. Beckwith, 712 
 
 Whitley V. Loftus, 163 
 
 Whltmarsh v. Robinson, 368 
 
 Whitmarsh V. Hall 65,73, 79 ■ 
 
 Whltmore v. Weld 176, 184 
 
 Whitmore v. Wild 184 
 
 Whitney v. Dutch 49, 51, 58, 87, 89 
 
 Whitney v. Whitney 912 
 
 Whitsell V. Mills, 577, 922 
 
 Whlttingham, case of, 159, 160 
 
 Whlttington, case of, 62, 63, 64 
 
 Whittlngton v. Whlttington 882, 997 
 
 Whittlesey v. Fuller, 602 
 
 Whyhall V. Champion 115 
 
 Wickerly v. Wickerly 571 
 
 WIckes V. Clarke 480 
 
 Wightman's appeal 417 
 
 Wightman V. Wlghtman 8.38 
 
 Wilcox V. Randall 634 
 
 Wilcox V. Wilcox, 282 
 
 Wilcox V. Roath 87, 91 
 
 Wild V. Wells .■ 618 
 
 Wilder v. Brooks, 750 
 
 Wilkins v. French 643 
 
 WUklns V. Miller 739 
 
 Wilkinson V. Parish 540, 548 
 
 Wilkinson v. Perrln, 362 
 
 Wilkinson v. Wilkinson 172 
 
 Wi4klnson's Admrs. v. Oliver's Rep's, 172 
 
 218, 221 
 
 Willardv. Stone 60 
 
 WUlesby v. Duke of Beaufort, 243, 256, 281 
 
 WlUesby v. Wlllesby, 243, 255, 282 
 
 WiUett V. Beatty 603 
 
 Williams' appeal, 728 
 
 Williams Y. Allen 785 
 
 Williams v. Bennett 689 
 
 Williams v. Cowan,. 343 
 
 Williams v. Coward 725 
 
 Williams v. Cox, 547, 634 
 
 Williams v. Finch, 152 
 
 Williams V. Kent 334 
 
 Williams V. Lambe 621, 622 
 
 Williams v. Mabee, 86 
 
 Williams v. Miller, 338 
 
 Williams V. Moore, 46 
 
 Williams V. Morgan, 394, 595, 696 
 
 Williams v. Norris, 78 
 
 Williams v. Smith, 419 
 
 Williams V. State, 189 
 
 Williams V. Wales, 433 
 
 Wmiams V. Williams, 136 
 
 Williams V. Wray, 617 
 
 Williamson V. Ash, 547 
 
 Williamson V. Gordon, 216, 218 
 
 Williamson v. Williamson 776, 777 
 
 Willianison's Heirs v. Johnston's and 
 
 Nash's Heirs 222 
 
 Wllllns V. Smith, 121 
 
 Willis V. Twambly, 51, 69, 74, 79 
 
INDEX TO CASES CITED. 
 
 XXXI 
 
 PAGE. 
 
 Wilson V. Brown, 710 
 
 Wilson V. MoQee, 208 
 
 Wilson V. Green, 868 
 
 Wilson V. McLennghan, B80 
 
 Wilson V. Hamilton, 566 
 
 Wilson V. McCuUouoli, 134, 460 
 
 Wilson V. Fleming, BOS 
 
 Wilson V. Smith 352, B37, 934 
 
 Wilson, matter of, 302 
 
 Witt V. Walsh 179 
 
 Wilton V. Devlne, 480 
 
 Wilts V. Dawklns 440 
 
 Winans v. Peebles, 689 
 
 Windham V. Portland, 616 
 
 Windle, matter of, 304 
 
 Winestone V. Linn, 154 
 
 Wing V. Libby, 87 
 
 Winlock V. Winlook 308 
 
 Winship V. Lamberton, 561 
 
 Winslow V. Anderson 143 
 
 Winslo-w V. Crocker, 319, 362 
 
 Winslow V. Gilberts, 677 
 
 Winslow V. Tlghe, 370 
 
 Winslow V. Winslow, 896 
 
 Winston V. Canipbell, 172 
 
 Winter V. Henn, 478 
 
 Winter V. Walter, 498 
 
 Wlntercast v. Smith, 383 
 
 Wise V. Wilson, 154 
 
 Wlswall V. Hall 561 
 
 Witham V. Perkins 420 
 
 Wltherspoon v. Dubose 333 
 
 Within V. Prazler 362 
 
 Womaok v. Womaok 77, 798 
 
 Woodv. Gale 261 
 
 Wood V.Lee 568 
 
 Wood V. Mather 306 
 
 Wood V. O'Kelly 348 
 
 Woodv. Savage, 479 
 
 Woodv. Seely, 580 
 
 Wood V. Stokes, 494 
 
 Woodv. Vance 178 
 
 Woodv. Wood, 674, 891, 895, 905, 910 
 
 Wood V. Wheeler, 797 
 
 Woodv.Worden 479, 493 
 
 Wood V. Wallace, 544 
 
 Woodbeok V. Havens 487, 642, 666 
 
 Woodbrldge v. WUkins, 611 
 
 Woodcock V. Eeed, 704 
 
 Wooden V. Morris, 715 
 
 Woodman v. Chapmaii, 336 
 
 Woodruff V. Brown, 008 
 
 Woodruffv. Logan 143, 153 
 
 Woods V. Woods 837, 889 
 
 Woodward V. Dowse, 578, 579 
 
 Woodward V. Seaver, 508, 682 
 
 PAGE. 
 
 Woodward v. Newhall, 207 
 
 Woodward v. Woodward, 46B, 609 
 
 Woodworth V. Sweet, 449, 664 
 
 Wooldrldge V. Lucas, 688 
 
 Wooley V. Magie 660 
 
 Wooley V. Turner, 32s 
 
 WooUand V. Urowcher ; 8(10 
 
 Woolsten's appeal, , 479, 493 
 
 Woolstoncraft, matter of, 331 
 
 Wooster V. Northrups, 746 
 
 Worcester v. Parker, 622 
 
 Worcester V. Eaton, 74 
 
 Wordv. The Commonwealth, 491 
 
 Worden V. Worden, 912 
 
 Workmen v. State 321 
 
 Worralv. Jacobs 471 
 
 Worthington V. Middleton, 558 
 
 Worthington V. Young, 314 
 
 Wren v. Gayden, 205 
 
 Wright V. Brown, 717 
 
 Wright V. Englefleld, 4.34 
 
 Wright V. Gihon, 166 
 
 Wright V. Hays 795 
 
 Wright V. Jennings, 516, 608 
 
 Wright V. Miller 174, 216, 456 
 
 Wright V. Sadler, 499 
 
 Wright V. State 62 
 
 Wright V. Wright 242, 286, 441, 583, 905 
 
 Wrisley v. Kenyon 52 
 
 Wyck V. East India Co 162, 163, 171 
 
 Wyck V. Packlngton 269 
 
 Wymanv. Huston, 308 
 
 Wynne v. Always 258 
 
 Y. 
 
 Yale vi Dederer, 443, 444, 446, 475, 653, 6S5, 658 
 660, 669, 745, 746 
 
 Yancy v. Smith, 666 
 
 Yates v. Madeley, 377 
 
 Yates V. Paddock 589, 591 
 
 Yeigerv; Stone 208 
 
 Yelverton v. Yelverton 929 
 
 Young V. Davis S-l 
 
 Young V. Graff, 74:j 
 
 Young V. Gregory 584 
 
 Young V. Jones, 782 
 
 Young V. Lee, 781 
 
 Young V. State, 510 
 
 Young V. Whitaker 205 
 
 Young V. Young 193 
 
 Z. 
 
 Zelgler's appeal, 730 
 
 Zouch V. Parsons, 42, 54, 66, 64, 140, 141 
 
LAW OF IKFAKCY AND COYERTURE. 
 
 PART I. 
 
 LAW OF INFANCY. 
 
 CHAPTEE I. 
 
 WHO ABE DTFANTS GENERAL DISABILrnES mPOBED UPON INFAIITS — ■ 
 
 CANNOT APPLY TO BODIES POLITIC — ^ILLTJSTEATIONS. 
 
 § 1. Mas, upon his entrance into the world, is entirely incapable 
 of protecting himself; and his natural powers and faculties, both 
 physical and moral, require a number of years for their complete 
 development. Probably there is no creature so helpless at birth as 
 the human being. The law has, therefore, wisely imposed upon 
 man, for a limited period, certain disabilities, and endued him with 
 certain privileges, which are implied in the term infant. 
 
 By the common law, which generally prevails in this country, 
 no person acquires fnUy all his political and civil rights until he 
 has completed the age of twenty-one years, at which time his 
 infancy terminates. This rule, however, does not prevail in all 
 systems of jurisprudence. 
 
 By the civil law which obtains in Spain and some other countries, 
 emancipation does not take place until the infant is 1/wmviy-fioe. 
 The selection of twenty-one, rather than any other period, by the 
 common law, as the age of majority, is supposed to have origiaated 
 in the feudal system, which regarded the subject as first physically 
 capable at that age/ if a male, of doing knight's service, and follow- 
 ing his lord to the wars ; and if a female, not before of a suitable 
 age to marry any one upon whom those duties would devolve. 
 (Bmghamh on Infomcy, 1, Note 1.) 
 5 
 
34 LAW OF mFANCr. 
 
 No period could be selected for the termination of infancy which 
 would be entirely equal, for the reason that some persons mature 
 earlier than others. But the law must prescribe some age for the 
 emancipation of the infant, and probably twenty-one years is as 
 well as any other. And it maybe suggested, as an interesting fact, 
 that human life is divided into four periods, each of which is a 
 multiple of seven. Natural inliancy ends at seven years ; puberty 
 begins at fourteen years ; legal infancy ends at twenty-one years ; 
 and the natm-al life of a man is three-score years and ten. {Story 
 on Contracts, 2d ed. § 55.) 
 
 § 2. In law, a person is reputed to be twenty-one years of age, 
 on the opening of the last day of the twenty-first year of his life, 
 although, by the natural computation of time, several hours might 
 intervene before he actuall/y attains to the full age of twenty-one 
 years. For example, a man born on the first day of February, 
 1600, after eleven o'clock at night, was adjudged to be of full age 
 the second minute after one o'clock on the morning of the last day 
 of January, 1621. {Anonymous, 1 Salh. B. M.) Here it will be 
 observed that the individual had not lived twenty-one years by about 
 forty-eight hours ; and if the birth were on the last second of one 
 day, and the act on the first second of the preceding day, twenty- 
 one years after, then twenty-one years would be complete, because 
 the law recognizes no fraction of a day, and it is the same whether 
 a thing is done upon one moment of a day or on another. (1 Black. 
 Com. 464, note 12, ly Ghitby. Sw Bobert Mmoard^s case, 2 Salic. E. 
 625. Boe v. Hersey, 3 Wilson B. 274. Herberts. TurlaU, KelUsB. 
 589. Mchols V. Bamsey, 2 Mod. ^.281. Fitskugh v. Bennington, 
 6 *5. 260. HamVm v. Stevenson, 4 Damans [Ky.] B. 97. State v. (Mark, 
 3 Barring. [Bel.'] B. 557. Anon. 1 Baym. B. 480. 20 Am. Jv/r. 252.) 
 
 § 3. By the English common law, the period at which the per- 
 son attains to the full age of majority is the same for both sexes; 
 but, in some of the American States, females are considered of age 
 at eighteen. Thus, in Vermont, it is declared by statute that mjtles 
 of the age of twenty-one years, and females of the age of eighteen 
 years, shall be considered of full age for all purposes, and that 
 before those ages they shall be considered minors. {B. S. 1863, 
 ch. 72, § 1. Spa/rhcmlc v. BuelVs Adm. 9 Vt. B. 41. Young v. 
 Ba/vis, Bray. B. 124.) 
 
 So, also, in the State of Illinois, it has been held that females 
 there attain majority at eighteen years of age. {Stevenson v. West- 
 
PLACE OF BIRTH GOVERNS. 35 
 
 fall, 18 lU. R. 209. Kester v. Stwrh, 19 ih. 328.) The same is 
 the law in Ohio. (1 B. 8. oh. 56, § 1.) 
 
 In Maryland, female infants, on attaining the age of eighteen, 
 have the right to dispose of their real estate by will, but with this, 
 and perhaps another statutory . exception, the common law is 
 applied to females, as well as males. {Maryland Code, Art. 93, § 
 300. Oorrie's case, 2 BlamcPs Ch. i?.'488.) 
 
 In Nebraska it is declared by statute that males shall be regarded 
 at full age at twenty-one, and females at eighteen {R.8. ch. 22,^ 
 § 1) ; and in the State of Texas it is provided by statute that every 
 female imder twenty-one years of age who shall marry in accordr 
 ance with the laws of the state, after such marriage, shall be 
 deemed to be of full age. {Oldham amd White's Digest of Laws, 
 Art. 1400.) This provision of the statute has been held to apply 
 to all marriages, but not to legalize acts before the passage of the 
 act {Ohubb v. Johnstmi, 11 Texas B. 469) ; and further it is held 
 that the statute of limitations commences to run at the date of 
 the marriage. ( White v. Laimner, 12 Tex. B. 61.) 
 
 "When the exception exists, it is probably upon the assumption 
 that females possess as much discretion at" eighteen as males at 
 twenty-one; and it is a fact that females, as a general rule, 
 mature about three years earlier than males. On the contrary, 
 among the ancient Greeks and Romans, women were never of age, 
 but were subject to perpetual guardianship, unless when married, 
 " nisi conoejiissent m ma/num w/ri " — or, in plain English, except 
 when they come into the husband's possession ; and when that 
 perpetual tutelage wore away in process of time, full age, in females 
 as weU as males, was not tiU twenty-five years. (1 Black. Com. 
 464, dtmg Inst. 1, 23, 1.) 
 
 § 4. Upon the general principle that all laws which regard 
 majority, minority and emancipation are personal, the law of the 
 domicile of birth has been held to govern the state and condition of 
 the minor into whatever country he may remove, and that his 
 minority ceases at the period fixed by such law for his majority. 
 {Barn-era v. Alpuente, 18 Ma/rtm's [Zouis.] B. 69.) And Judge 
 Story lays down the doctrine, as well maintained by the most emi- 
 nent foreign jurists, that a person who has attained the age of 
 majority by the law of his native domicile is to be deemed every- 
 where the same, of age; and, on the other hand, that a person who 
 is in his minority by the law of his native domicile is to be deemed 
 
36 IiAW OF INFANCY. 
 
 everywhere in the same state or condition. {Story on Conflict cf 
 Lams, 52, amd amtlwfities died) The same doctrine has been 
 recognized by the old supreme court of the State of New York. 
 {Thompson v. Keteham, 8 Johm. B. 189.) This does not neces- 
 sarily conflict with the rule that, upon a change of domicile, the 
 capacity or incapacity of the person is regulated by the law of 
 the new domicile; or, as Pothier lays it down, "the change 
 of domicile delivers persons from the empire of the laws of the 
 place of the domicile they have quitted, and subjects them to those of 
 the new domicile they have acquired." {Story on Conflict of Laws, 
 69.) Tie lex loci generally governs in respect to the capacity and 
 condition of the person, as to acts, rights and contracts done, 
 acquired or made out of his native domicile ; but as to acts done, or 
 rights acquired, or contracts made, in the place of his native domicile, 
 the state and condition of the person, according to the law of his 
 domicile, will generally be regarded in other countries. For exam- 
 ple, if a person be a minor by the law of his domicile unto the age 
 of twenty-five, yet, in another country, where twenty-one is the 
 age of majority, he may, on attaining that age, make, in such other 
 country, a valid contract. (2 KenGs Com. 234, note c.) But in 
 the case supposed, had the contract been made in the place of his 
 native domicile, even at the age of twenty-four years, the contract 
 could not be enforced in the other country where the age of 
 majority was at twenty-one. The general rule as to contracts is, that 
 the lex loci contractus governs as to the nature, validity, construc- 
 tion and effect of the contract, and the lex fori as to the remedy. 
 When the provisions of the law render the contract void or ter- 
 minated in any way, the lex loci always applies. ( Vide Caret v. 
 FranJe, 36 Bari. [^If. Y.] B. 328.) 
 
 § 5. The incidents, however, .which the law has attached to 
 infants in their natural capacity do notextend to them in the exercise 
 of corporate or political functions, as imbecility and inexperience 
 are not supposed to form a part of those abstract existences which 
 are constituted for the mere performance of public service and so 
 far as that is concerned the natural properties of the infant merge 
 in his political capacity, " to which age is neither material nor 
 imputable." {Bro. Age.) Therefore, as has been weU said, if the 
 King, within age, consent to an act of parliament, or make any 
 lease or grant, he is bound presently, and cannot after avoid them, 
 either during his minority or when he comes of full age, for the 
 
DISABILITIES OF INFANTS. 87 
 
 King, as a body politic, cannot be a minor. {Bmg. on Inf. 3, amd 
 cases there cited.) 
 
 So it has been adjudicated that an infant may be a mayor, and 
 on the same principle the acts by the mayor and commonalty can- 
 not be avoided by reason of the nonage of the mayor. {Oro. Oa/r. 
 556.) And if a parson, improperly admitted nnder age, make a 
 lease with the due requisites, it will be binding on his successor ; 
 for the parson made the lease in his capacity of corporation sole. 
 {Bro. Age. Bmg. on Inf. 4.) On the same principle, the acts 
 of no pubKc oflBcer can be repudiated or avoided by reason of 
 the nonage of the incumbents, although there are certain oflSces, 
 as we shall presently see, which a minor cannot properly 
 hold. 
 
 § 6. There are some general disabilities imposed on an infant, for 
 the security of others. He is considered incapable of holding or 
 exercising any office which relates to the administration of justice, 
 though he may exercise those offices that require only skill and dil- 
 igence ; thus ia England an infant cannot sit in the house of 
 lords,* or be elected a member of the house of commons, or be a 
 judge, juror or bail. (^o5. 325. Oro. Ms. 637. JenK319.) ISTei- 
 ther can an infant in England be a common informer, nor a sheriff's 
 officer. {Maggs v. JElUs, Buller's W. P. 196. 3 StepL JUT. P. 2059, 
 Cuckson V. Winter, 17 Eng. O. L. R. 306.) Nor can he be 
 legally appointed derk of a court of requests, when it is a part 
 of the duties of that officer to receive the money of Isuitors. {Olm^ 
 idge v. Evdyn 7 Eng. C. L. R. 32.) Neither can an infant exer- 
 cise the office of burgess of a borough or town. {Rex v. White, 2 
 SeVvo. N. P. 1068, ».) And in Connecticut an infant cannot serve 
 a writ as an indifferent person (Tyler v. Tyler, 2 Root^s R. 519), 
 
 * In ancient times, minors appear frequently to Iiave taken npon themselves to sit in Farlla^ 
 ment. It appears by a speech of Waller, reported hy Qray in Ms Debates, that the poet sat in 
 Parliament when he was bat sixteen years of age ; and in Newton's Fragmenta Kegalia, there 
 is a passage stating that " about the 10th of James I, there were accoonta taken of forty members 
 not above twenty years of age, and some not exceeding sixteen." It is also stated in Gray's 
 Debates, that Lord Torrington, son of the Dnke of Albemarle, ^ras but fourteen years of age at 
 the time when he took part in a debate, as member of the House of Commons, (^ocpto'sore on, 
 Infants, 449, naU *.) And it appears from the life of Fox, the great statesman and orator, that he 
 was elected from Midhurst when he was but nineteen, took Ms seat in Parliament, and made his 
 first speech when he was but twenty years old. {yuie New American Cyclopedia, tit. Charles 
 James Fox.) It is now, however, expressly enacted that no person shall be capable of being 
 elected as a member of Parliament who ia not of the fhll age of twenty-one years (7 and 8 WiU. 
 3, ch. 25, § 8} ; and it has been decided that the election and return of an in&nt ia vexatious, and 
 the votes given for an in&nt candidate, after notice of his being ineligible, are thrown away. 
 (Macph. on Inf. 460.) 
 
38 LAW Of INFANCY. 
 
 though in New Hampshire it has been held that he may be legally 
 deputed by the sheriff to serve and return a particular writ of 
 attachment. {Morse v. Grwoes, Z N. H. B. 408.) 
 
 In the State of New York it is provided by statute that no 
 person shall be capable of holding a civil office, who, at the time 
 of his election or appointment, shall not have attained the age of 
 twenty-one years. (1 B. 8. part 1, ch. 5, Ut. 6, § 1. 1 SM. at 
 Large, 106. People v. Beam, 3 Wend. B. 438. Green v. Murlee, 23 
 ib. 490. In the State of Ehode Island, infants are expressly pro- 
 hibited from holding a public office by the constitution of the 
 commonwealth. {State Const, a/rt. 9, § 1, amd aH. 2, § 1.) And this 
 is the law in Tennessee {Code of 1858, § 748), and in nearly or quite 
 all of the American States, and of the Federal Gro vemment, although 
 in some few instances minors have held high and responsible offices 
 by federal appointment. 
 
 For example, Stevens T. Mason was appointed by President Jack- 
 son secretary of the territory of Michigan in 1831, when he was 
 but nineteen years of age, and upon the translation of General 
 Cass, the governor, to the war department at Washington, he 
 became the acting governor, and during his gubernatorial term 
 he distinguished himself, though but a mere youth, by the calm- 
 ness, ability and courage with which he maintaiued the rights of 
 the territory. Other similar instances have occurred in various 
 parts of the Union ; and it is proper to remark that in all cases the 
 acts of a public officer are binding upon the public until the 
 appointment, if improvidently made, shall be declared void. In 
 England, an infant may be a clerk of the peace. {Crosby v. Hurley, 
 1 Alcock & Napier's \IrisK\ B. 431.) He cannot be an innkeeper, 
 so as to^e charged on the custom of the realm for negligence. 
 {Bac. Air. Infancy, K Ca/rthen, 161.) 
 
 In the United States there is no objection to the election of 
 •minors to be commissioned officers of any rank in the militia and 
 in tlie army and navy. Under the laws of Massachusetts, it has 
 been held that the infancy of a person over eighteen years of age 
 does not disqualify him for the office of clerk of a company in the 
 militia. {Dewey, Petitioner, 11 Pick. B. 265.) 
 
 If an infant commit any wrongful act in an office which he is 
 capable of liolding, he will, of course, be liable therefor. 
 
 An infant cannot be made a banlmipt ; and a commission of 
 banlvruptcy against an infant would be absolutely void. {CBrim 
 
DISABILITIES OF INFANTS. 39 
 
 V. Currie, 14 JEkg. C. L. JS. 807. Beltm v. Hodges, 23 ii. 309.) 
 An infant cannot, of his own choice, change Ms domicile. He is 
 not Bid jwris — of liis own riglit. {Ex parte Ba/rUdt, 4 Bradj. R. 
 221.) 
 
 An infknt cannot be naturalized on his own petition. {Le For- 
 rester's case, 2 Mass. R. 419.) Nor can he acquire a settlement by 
 commorancy ; so held in the State of Connecticut. {Sterling v. 
 Plaimfield, 4 Conn. R. 114. Himtingt&n, v. Oxford, 4 Ban/^s R. 
 189.) But he may gain a residence by living and service with his 
 father. {King v. Chillesford, 10 Eng. C. L. R. 279.) An infant 
 may be a witness if proved to have sufficient discretion and under- 
 standing of the obligation of an oath. The test universally is, that the 
 child feel the binding obligation of the oath from the general course 
 of his religious education, it being held that the effect of an oath 
 upon the conscience of the child should arise from religious feelings 
 of a permanent nature, and not merely from instructions confined 
 to the nature of an oath, recently communicated for the purpose 
 of the trial. {R^ v. Williams, 32 Ekg. O. L. R. 624.) And in 
 one case in New York, where a child nine years old, though very 
 intelligent, did not understand the nature of an oath, nor the moral 
 penalty of false swearing, the court instructed her on the spot, and 
 then allowed her to be sworn. {Jenner's case, 2 Ci^/ Sail R. 
 147, 8, 9.) Children of ten, nine, seven, and even five years of 
 age have been held competent. {Regma v. Ret'hms, 38 Eng. O, 
 L. R. 236. Commwmjoealth v. JIutclivns, 10 Mass. R. 225. StaAa 
 V. Whitbier, 21 Maine R. 341. Reso v. Brasi^r, 1 Leach Or. Oas. 
 237. State v. Le Blam, 1 Oonst. {S. 0.'\ R. 354.) 
 
 It is adjudicated that, before a child should be admitted to testify, 
 the judge must be satisfied that the child feels the binding obliga- 
 tion of an oath from a general course of religious education. {Reon 
 V. WilUams, svpra.) The adverse party may require that a wit- 
 ness of tender years shall be examiaed as to his understanding of 
 the nature and obligation of an oath. {People v. McNai/r, 21 
 Wend. R. 608.) 
 
 § 7. It has also been held in England that an infant is not capable 
 of the stewardship of a manor, or of the stewardship of the courts 
 of a bishop ; nor can he take a grant of those ofSces in possession 
 or reversion. This disability is put upon the ground, not only that 
 by intendment of law the infant has not Sufficient knowledge, 
 experience and judgment to use the office, but also that by law he 
 
40 ZAW OF INFANCY. 
 
 cannot appoint a deputy. {Bmg. on Inf. 4.) By the common 
 law an infant cannot make a will of lands, and this is the rule in 
 aU, or nearly all, of the American States. He may, however, make 
 a testament of chattels, if a male, at the age of fourteen, and if 
 a female, at the age of twelve years, except in some of the States 
 the rule is varied by statute. The civil law gave this power to the 
 infant at the age of seventeen years, and this is the period which 
 is fixed by the statute of Connecticut. 
 
 In the State of Ifew York the period adopted, is the age of 
 eighteen in males and sixteen in females. {2 JR. B. pani, 2, ch. 
 6, at. 1, § 21. 2 Stat, at Zarge 61, as amended hy ch. 782, Loajos 
 of 1867, § 4.) 
 
 None under fall age can devise their property, real or personal, 
 in Vermont, JMEassachusetts, New Hampshire, Ohio, Pennsylvania, 
 Maine, Indiana, New Jersey,- North Carolina, Mississippi, Texas 
 and Florida. 
 
 In Ehode Island, Maryland, Missouri, Oregon and Virginia, the 
 required age is eighteen for a testament of personal property. 
 ( Vide the Statutes of the several States.) 
 
 In the new State of Nebraska none but adults can make a valid 
 will of eithel" personal or real estate, except that a married woman 
 under age may execute a will with the consent of her husband. 
 {B. S. ch. 14, §§ 123, 126.) 
 
 In the State of Illinois none but adults can make a vaHd will of 
 real estate, except females at and above the age of eighteen, and 
 unmarried ; and all persons at and above seventeen years of age 
 may make a will of personal estate. {Oen. Stat., 1858, ^paj-e 
 1180.) 
 
 In the State of South Carolina an infant at the age of eighteen 
 may make a valid will of personal estate by conforming to the 
 Statute of 1824 upon the subject. {Posey v. Posey, 3 Stroih. B. 
 167.) 
 
 An infant cannot be a public attorney for prosecuting suits at 
 law and equity, though he may be a private attorney,, for the pur- 
 pose of performing acts so merely ministerial as to require little or 
 no judgment, experience or skill. ( Vide Bing. on Inf. 4, note m.) 
 
 Neither can an infant be a bailiff, factor or receiver, because he 
 is not to be charged in any account, though it would seem that an 
 infant might be appointed a factor, on his friends giving security 
 for his accounting. {Bi7ig. on Inf. 5, and case cited.) He cannot 
 
VOID ACTS OF INFANTS. 4:1 
 
 be an administrator, because a bond is required to insure faitbM 
 administration, and tbe deed of an infant is not binding on him. 
 
 In case of a bailiff, the disability is that of stating an account, 
 and in case of an administrator, the privilege is that of avoiding 
 his bond. "When the infant is entitled to administration in New 
 York, as being next of kin to the intestate, letters must usually be 
 granted to the guardian of the minor, who ia in other respects 
 competent. (2 B. 8. paH 2, ch. 6, Ut. 2, § 33. 2 Stat, at La/rge, 
 17.) But should administration be granted to the minor, where 
 there was no positive statute to forbid it, the administration could 
 not determine until the infant attained to the age of majority. 
 {Bing. on Inf. 5.) 
 
 An infant at common law may act as an executor at the age of 
 seventeen, and his acts as such wiU bind him, unless 'they be acts 
 which would amount to d&oas(amt — to waste ; and this is the rule 
 in all of the states, except when changed by positive enactment. 
 In New York, an infant ia declared incompetent to act either as 
 executor or administrator. (2 B. 8. part 2, ch. 6, tit. 2, § 3. 
 2 8taf. at Large, 71.) 
 
 It may be stated, in general terms, that when the act of the infant 
 is void, the incident of infancy ia regarded as a disability * but 
 when the act is simply voidable, the incident is a privilege. 
 
 CHAPTEK II. 
 
 WHAT ACTS OF AH DTFANT ARE ABSOLUTELT VOlD — THE OEECEKION 
 OE TEST CASES rLLUSTEATING THE PEINCIPLE. 
 
 § 8. The method taken in law to protect an infant against the 
 effects of his own weakness has been to consider his acts as not 
 binding, and allow him to rescind all contracts entered into by 
 him, with certain exceptions, wliich will be hereinafter specifically 
 noticed. There are, however, two degrees in which his acts or 
 instruments appear to be not binding. First, by being considered 
 as if they had never existed, viz. : wholly void ; and, secondly, as 
 being defeasible, at the election of the party with whom they orig- 
 inated, that is voidaUe only, (Bmg. on Inf. 8,) 
 6 
 
42 hAW OF INFANCY. 
 
 A vom act never 'is, and never can be binding, either on the 
 party witli whom it originated, or on others. No person claiming 
 through or under it can succeed, and the void act can never at any 
 time or by any means be confirmed or rendered valid. {Bmg. on Inf. 
 9.) Any person interested may take advantage of a void act of an 
 infanl;, which is not the case when the act is simply voidable. It 
 is a matter of great importance, therefore, to ascertain, if possible, 
 what acts of an infant are void, and what are merely voidable ; and 
 here Chancellor Kent has well said that, "when we attempt to 
 ascertain jfrom the books the precise line of distinction between void 
 and voidable acts, and between the cases which require some act to 
 affirm a contract ia order to make it good, and some act to disaffirm 
 it, in order to get rid of its operation, we meet with much contra- 
 diction and confusion. (2 Kent^s Com. 234.) 
 
 Two rules are stated by Mr. Bingham {Bmg. on Inf. 9) to assist 
 us in coming to a conclusion upon the subject, but he adds that 
 " neither of them, on examination, will be found satisfactory." The 
 first given is from Perkins, an ancient writer {Perkma, % 12), 
 " that all gifts, grants or deeds made by infants, which do not take 
 effect by delivery of his hand, are void." To this Mr. Bingham 
 suggests, " that if the rule held good in all cases, a parol lease for 
 years made by an infant would be absolutely void," while it cannot 
 be denied that "the infant could recover in an action for rent 
 arrears on such lease," and hence the inference that the lease would 
 be " clearly only voidable." This rule of Perkins, however, was 
 approved by Lord Mansfield in a special case of ejectment, when 
 the question was "whether an infant's conveyance by lease and 
 release was absolutely void, or only voidable," Lord M. asserting, — 
 " we think the law is as laid down by Perkins." (Zouch v. Parsons, 
 3 Burr. B. 180L) 
 
 On the contrary, Chancellor Jones in a case decided in the late 
 court of errors of the State of New York, says : " Some of the 
 old writers seem to make a distinction between deeds and other 
 contracts of infants accompanied by manual delivery; but the 
 distinction is now discarded, and the same effect is given to both." 
 {Stafford v. Boof, 9 Cow. B. 626.) At all events, as Mr. Bingham 
 remarks, " the rule comprehending only gifts, grants and deeds is not 
 sufficiently extensive for general application." {Bing. on Inf. 10.) 
 
 § 9. The second rule referred to by Mr. Bingham is, " that those 
 acts are void in which there is no semblance of benefit to the 
 
VOID ACTS OF INFANTS. 43 . 
 
 infants." {Bmg. on Inf. 11.) This rule clo?s not seem to have 
 received the full sanction of Mr. Bingham ; and Mr. Justice Wilde, 
 of the supreme judicial court of Massachusetts, over fifty years 
 ago, averred that it would be more correct to say, "that those 
 acts of an infant are void which not only apparently, but necessa- 
 rily, operate to his prejudice," and further, that " the benefit of 
 the infant is the great point to be regarded ; the object of the law 
 being to protect his imbecility and indiscretion from injury, through 
 his own imprudence,, or; by the craft of others." {Oliver v. Houdlet, 
 13 Mass. B. 237.) 
 
 The rule was laid down by Eyre, Ch. J., of the court of common 
 pleas of England, that those contracts of infants only were void ' 
 which " the court can pronounce to he to thei/r pr^udMe." {Keene 
 V. Boycott, 2 H. Bl. B. 515.) This is undoubtedly the doctrine of 
 the current of the English authorities, with the understanding, per- 
 haps, that it must be apparent upon the face of the instrument or 
 transaction that it is to the prejudice of the infant ; and this is 
 probably the most intelligible rule upon the subject which can be 
 extracted from the decisions in this country ; although the rule is 
 often exceedingly difficult of application, liable to many exceptions, 
 and by no means satisfactory. Cliief J. Bronson, of the New 
 Tork supreme court, after statiag the doctrine laid down by Lord 
 Ch. J. Eyre in the case of Keene v. Boycott, swpra, says : " This 
 may answer weU enough as a general rule, but it must be subject to 
 exceptions." {Fonda v. Van Home, 15 Wend. B. 635.) The subject 
 has undergone no inconsiderable discussion in the American courts, i 
 including the supreme court of the United States, and the result / 
 is about as above stated. ( Vide Tucker v. Morekmd, 10 Peter's B. } 
 70. Also Vent v. Osgood, 19 Pich. B. 572. La/wson v. Lovejoy, 
 8 Oreenl. B. 405. Fridge v. The State, 3 QUI (& John. \Md.'] 
 B. 104. Wheaton v. Fast, 5 Yerger's \_Tenn.] B. 41. Klim v. 
 Beele,^ 6 Gorm. B. 494.) The reason of the rule in favor of the 
 infants, as stated by Story in his treatise on contracts, is, that "in 
 such case the presumption is almost irresistible that some unfair 
 advantage has been taken of him,' or some injurious influence 
 has been exerted;" and he adds, "the only difference in tliis 
 respect between the contracts of adults and infants is, that in the 
 one case injury is only evidence of imposition, while in the other 
 it is allowed as an uncontrollable presumption thereof, because of the 
 inexperience of the infant." {Story on Con^M edi § 67.) 
 
44: LAW OF INFANCY. 
 
 § 10. The tenden^ of modem decisions, and the opinion of 
 elementary writers, is in favor of the reasonableness and policy 
 of a very Hberal extension of the rule, that the acts and contracts 
 of infants should be deemed voidable only, and susceptible of ratifi- 
 cation or disaffirmance, at their election, when they become of 
 age. (2 Kent's Com. 235.) 
 
 Mr. Bingham confidently asserts that in his day it could be 
 successfully contended, that few of the acts of an infant were abso- 
 lutely void, and he maintained his position upon these grounds : 
 First, on the principle of the law relating to infants, which is to 
 protect the infant against the effects of' his own weakness ; and if 
 this protection can be efiectuaUy secured to him' by any means 
 short of inflicting a detriment on innocent persons, it is argued that 
 such infliction must be unnecessary and unjust. To consider any 
 acts of an infant absolutely void, might operate to his o'wn protec- 
 tion, but it would in many cases seriously affect the rights of persons 
 in no'wise implicated in the infant's transactions, and might not 
 unfrequently be prejudicial to himself. It is thought, therefore, 
 that it would rarely be a greater indulgence to the infant, and more for 
 his advantage, to allow him, when he comes of age and is capable 
 of reconsidering what he has done, either to ratify and affirm aU 
 his deeds and contracts, or to break through and avoid them ; and 
 he contends that this power should be extended, as weU to those 
 acts wHch may turn out to the infant's disadvantage, as to those 
 which are apparently beneficial. The giving infants such power 
 in general over all their acts, he insists, wiU sufficiently seenre 
 them against the danger of being overreached by others; for 
 when the power is general, and all persons who deal -with an infant 
 know they are to be at his mercy, this will take off from the temp- 
 tation of imposing on him ; yet, since the infant is at liberty to 
 rescue himself by avoiding the injurious contract, it seems no pos- 
 sible mischief could arise by suffering it in the meantime to hang 
 m eqmUbrio, and deferring to pronounce any sentence npon it, 
 since that would curtail the infant's privilege, and take off from 
 his freedom of judging at all. This is substantially Mr. Bingham's 
 reasoning upon the first ground taken to sustain his position, and 
 though it is not entirely freft from criticism, it would seem to be 
 quite satisfactory. {Bmg. on Inf. 13-16.) 
 
 §. 11. The second ground assumed by Mr. Bingham to maintain 
 the position, that few if any of the infant's acts are void, is that it 
 
P-OIB ACTS OF INFANTS. 45 
 
 accords ■witL. the principles of pleading. Tliis is more a prin- 
 ciple of practice, and of course has not the merit of the iirst 
 ground. Any thing which at common law renders a deed abso- 
 lutely void, as rasure, interlineation, coverture, or lunacy at the 
 time of execution, may be given in evidence under the general 
 issue of " non est factumP The instrument under such circum- 
 stances is considered as if it had never existed, and, in that view, 
 " is not the deed of the defendant." But infancy must be pleaded 
 specially, and cannot be given in evidence under the issue of " non 
 estfactvm>" * The infant's deed, which will bind others, at least, 
 cannot be considered already void, or no deed at all, but must be 
 a/ooided only by showing the circumstances imder which it was 
 created. This reasoning is more matter of form than of substance, 
 and yet it has its bearing upon the question involved. {Bmg. on 
 Inf. 16-17.) 
 
 § 12. The third ground of Mr. Bingham to sustain his posi- 
 tion, is predicated upon a review of the cases decided. In regard 
 to these, it is frankly confessed that very little can be gathered 
 from their expressions toward the solution of the question, except 
 in those cases where the rights of third persons coming into con 
 sideration, the very point of discussion was, not the mere discharge 
 of the infant, but whether his deed was void or voidable ; and it 
 is averred that in the greater part of them, the protection of the 
 infant being the only point in question, both the court and the bar, 
 so long as that object was attained, seem to have used at random 
 the terms void and voidcMe, without any regard to precision. 
 The author only refers to one authority {Cro. EUz. 920), where the 
 question is stated to have been whether the deed was good or void- 
 able, and the court held it void, which word the reporter evidently 
 uses in the same sense as the word voidable preceding. (Bi/ng. rni 
 Inf. 18.) 
 
 The conflicting language of some of the cases upon this point 
 may be reconciled, by the confounding of the words " void " and 
 " voidable," as they have been vaguely used in many of the deci- 
 sions. The language of the court in one case was : " the bond is 
 
 * Lord Coke saye, " One of the test argnments or' proofs in law, is drawn iVom the rights, entries 
 or course of pleading." (Co. IMt. 115, S.) This would help to sustain Mr. Bingham in his position, 
 provided the rule was aa he stated, tliat " infancy must he pleaded specially," but all treatises 
 of pleading, hoth English and American, admit that infancy may bo proved under the general 
 issue of non-assumpsit, which would be contrary to all analogy, if tlie contract were merely voida- 
 ble at the election of the party. (Derly v. Boucher, 1 Salk. B. 279.) The practice in this country 
 atpresent, however, requires in&ncy to be pleaded, at least in most of the states. 
 
46 Ii^W OF INFANOT. 
 
 voidable only, at the election of the infant " {Oonroe v. Bvrdsall, 
 1 JoTms. Cas. 127), and yet the marginal note indicates that the 
 court held the bond " void at law," and Senator Tracy, in the court 
 of en-ors of the State of New York, referring to the case, says : 
 " It was held that a bond executed by an infant is void, though he 
 fraudulently alleged, at the time of making it, that he was of full 
 age." {Mason v. JOvmccm, 15 Wend. B. Yl.) Chancellor Kent 
 seems to have fallen into the same error in extracting the law of 
 this case. (2 Kenfs Com. 241.) So in the .supreme court of Penn- 
 sylvania, Justice Duncan, speaking of the infant's contract as a 
 surety, calls it " absolutely void," but in the next liue speaks of 
 " confirming," and " distinct acts of confirmation," indicating very 
 clearly that, in his opinion, the contract was susceptible of a rati- 
 fication, and, of course, was only voidable, and not " absolutely 
 void." {Owrtm v. Patten, 11 8erg. c& B<mde B. 311.) 
 
 In a similar manner, in one of the English common law courts, 
 Bayley, J., calls the contract of an infant under consideration a 
 void one, but the case shows that if there had been a ratification 
 iefore the action was commenced, as there was after, the infant 
 would have been bound, which could not have been the case had the 
 contract been void. {Thornton v. Ulingworth, 9 Eng. G. L. B. 256.) 
 
 In another case. Sir James Mansfield uses the word void in the 
 same indefinite manner, calling the contract void in one part of 
 his opinion, and in another saying : " the contract is not void uniiH 
 7ve avoids it." {Gills v. Merrill, 3 Tavm,. B. 307.) And in 
 another case, the court recognizes this indefinite use of the word, 
 for they say in effect, that an infant's contracts are void, if by void 
 is meant incapable of being enforced against them; but if by void is 
 meant vncafpaihle of leim,g satisfied, then they are not void. ( Wil- 
 Uams V. Moore, 11 Mees. S Wels. B. 256.) These instances are 
 sufficient to illustrate the vague use of the word void, and may seem 
 to reconcile some apparently conflicting cases upon the subject. 
 
 § 13. The acts of an infant which have been declared by judicial 
 authority to be absolutely void are very few, and many of the deci- 
 sions on the subject have been overruled or modified by subsequent 
 adjudications. 
 
 It has been decided that a warrant of attorney, given by an 
 infant, is absolutely void, and not voidable merely, and the court 
 declared that they could not make it good, though there appeared 
 circimistances of fraud on the part of the infant. {SoAinderson v. 
 
VOID ACTS OF INFANTS. 47 
 
 Marr, 1 M. JBl. R. 75.) The same doctrine is held in the State 
 of Pennsylvania. {Knox v. Flack, 22 Penn. B. 33.) And Bron- 
 son, Ch. J., of the New York supreme court, said, mthout any 
 qualification whatever: "An infant Cannot make an attorney. 
 The appointment would be void." {Fonda v. Yam, Home, 15 
 Wend. B. 636. And vide Ma/ples v. Sastmgs, 3 Hamngion's 
 B. 403.) And it was held in the same court, that a warrant of 
 attorney by an infant to confess a judgment was void, and a 
 judgment entered in virtue of such warrant of attorney was set 
 aside, on motion. {Bennett v. Bamies, 6 C(m. B. 393.) So 
 it has been expressly adjudicated that a power of attorney by 
 an infant to sell land is absolutely void. {LoAJorence v. McArter, 
 10 Ohio B. 37, 42. Pyle v. OroAims, 4 lAtteWa B. 17, 21.) 
 
 In England it has been held, that a joint warrant of attorney 
 given by Several persons, one of whom was an infant, will be valid 
 as to the infant. {Ashton v. Lamgton, 30 Eng. C. L. B. 567.) It 
 has also been held, in the State of Tennessee, that the release of a 
 legacy by an infant was void. {Larngford v. Frey, 8 H.vmvph. B. 
 443.) So also a bond executed by an infant as surety, inasmuch 
 as it cannot be for his benefit, is declared to be void; and a 
 release made by him to his guardian has also been held to be 
 void. {Story on Gonbracts, § 57, and cases there cited.) Simple 
 bonds however are now considered as governed by the same rule 
 as simple contracts, and if not manifestly of a prejudicial character 
 they are not void. {Sloctmi v. Booker, 13 Barh. B. 638.) 
 
 It was formerly held, that a negotiable promissory note by an 
 infant was absolutely void. {Swasey v. Vanderhey den's Admmis- 
 t/rator, 10 Johns. B. 33.) But now it is well settled to be voidable 
 only, and that it may be ratified by the infant when he comes of 
 age. {Goodsell v. Myers, 3 Wend. B. 479. Eoerson v. Oocenter, 
 17 i5. 419.) 
 
 A will of lands, made by an infant under the age prescribed by 
 statute, would be absolutely void. {H&rbert v. Torball, 1 Sid. B. 
 162.) A republication of the will after the infant attained the proper 
 age would be the first creation of it; for had the infant died 
 within age, or after age, without republishing' the will, no devisee 
 could have taken under it any more than if it never had existed. 
 
 A mortgage executed by an infant feine covert to secure a debt 
 of her husband, would be absolutely void. (ChamMer v. McK&idey, 
 6 Mich. B. 217.) 
 
48 LAW OF INFANCY. 
 
 It is clear that an infant cannot be bound by an account stated, 
 and perhaps it might, with some plausibility, be contended that 
 such account was absolutely void, on the ground that the trans- 
 action does not admit of reference or reconsideration without 
 becoming substantially a new act, and is therefore incapable of 
 ratification, the chief ingredient of a voidable act. However, the 
 better opinion now is, that an account stated by an infant is only 
 voidable, and, if ratified, an action of debt, as well as assumpsit, 
 wiU lie, ( Vide Williams v. Moor, 11 Mees. & Wds. B. 626.) 
 
 A rdease of debts by an infant executor is void, for the reason 
 that administration is only committed to the infant mjtb modo, and 
 his power does not extend to the release of debts, though he may 
 give a valid acquittance when they are paid. {JRusseWs Case, 5 
 CokSs a. 28.) A release by a female infant, to her guardian, has 
 been held void in Maryland, on the ground that it was against 
 sound policy. {Fridge v. The State, 4 Oill (& John. B. 104.) And 
 if an infant enfeofis his guardian it will be void, for the apparent 
 prejudice it must be to the infant. {Bog. Air. Inf. I. 137.) Other 
 authorities might be cited, but they would give no additional light 
 upon the subject. 
 
 I The only clear and definite proposition which can be extracted 
 pom the authorities is, that all acts of an infant which are incapa. 
 /ble of being legally ratified, that is, aU such acts as cannot be for 
 ,the benefit of the infant, are absolutely void, and these at the 
 I present day are reduced to a very small number. The real impor- 
 Itance attached to this question is, that parties other than the 
 I infant may determine whether they are bound by the act or con- 
 5 tract of the infant. 
 
 CHAPTER III. 
 
 WHAT ACTS OF AJT INFANT AEE VOIDABLE ONLT-^BE CEITEEION OB 
 TEST— OASES ILLTJBTEATING THE PEINCIPLE— TENDENCY OF MODEEN 
 DECISIONS. 
 
 § 14. Much the greater portion of all the acts and contracts of 
 an mfant are voidable only, for it is the policy of the law not to 
 mcumber the free action of the infant by disabOities, but allow him 
 the nght to saspend his ultimate decision upon a doubtful question 
 
VOIDABLE ACTS OF mFANTS. 49 
 
 of benefit, until He shall be of fuU age and placed on a footing 
 equal to the other contracting party.* {Story on Can. § 58.) 
 
 A voidable act is binding on others until disaffirmed by the 
 infant, and is capable of being confirmed or rendered valid when 
 the infant attains to the age of majority. The rule laid down 
 by Perkins is, that " all gifts, grants or deeds, made by infants, by 
 matter in deed or writing, which do take efiect by delivery of his 
 hand, are voidable by himself, by his heirs, and by those who have 
 his estate." {PerMns, § 12.) But the rule stated by Parker, Ch. J., 
 which is more satisfactory and more generally recognized by the 
 courts of this country as the true test, is, " that whenever the act done 
 may be for the benefit of the infant, it shall not be considered void, 
 but that he shall have his election, when he comes of age, to affirm 
 or avoid it." ( Whitney v. Dutch, 14 Mass. B. 462.) Perhaps it 
 may be assumed as a principle, also, that aU simple contracts by 
 infants, which are not founded on an illegal consideration, are 
 strictly not void, but only voidable. They remain a legal subsVrat/wm 
 for a future assent, until avoided by the infant or other proper 
 party ; and if, instead of avoiding, he confirm them, when he has 
 a legal capacity to make a contract, they are, in all respects, like 
 contracts made by adults. (/5.) It is regarded equally to the 
 security of the infant, ^nd more to his advantage, that by con- 
 sidering his acts voidable, we should give him the privilege of 
 avoiding, which also implies that of confirming themj than that by 
 considering them void, we should lay him under the disability of 
 acting at all, and place him on a level with idiots and IxmaticS. 
 It certainly could not be considered a great privilege to the infant 
 for the court to have power to declare his contracts absolutely Void, 
 although he himself might choose to ratify them. 
 
 § 15. The tendency of the later authorities is to hold that sem- 
 blance of benefit to the infant in his acts or enjoyment is the 
 criterion by wldch to determine that the act is voidable . and not 
 void. Bingham asserts that the only safe criterion by which we 
 can ascertain whether the act of an infant be void or voidable is, 
 "that acts which are capable of being legally ratified are voidable, 
 only." {Bing. on Inf. 45.) 
 
 • Under the Spanisli law at one time if not now in force in the State of Texas, the marriage 
 of a minor is an emancipation and discharge from paternal power, and enables the infent to 
 make contracts and do other acts, in the same manner as adults, which cannot be avoided on the 
 plea of infancy. (Burr v. Wilson, 18 Texas B. 367.) 
 
50 LAW OF INFANCT. 
 
 By legal ratification is meant, that the act supposed to constitute 
 such ratification should be held a valid act only by reference to the 
 preceding act intended to be ratified. This criterion Ch. Kent 
 thinks does not free the question from embarrassment, or aiford a 
 clear and definite test ; and he prefers the rule that, " whenever the 
 act done may le for the benefit of the infant, it shall not be consid- 
 ered void, but he shall have his election, when he comes of age, to 
 affirm at: avoid it." (2 Kenes Com. 234.) Mr. Bingham admits 
 that his own criterion appears at first sight a little like a,petHioprm- 
 cipii, or begging of the question, and that it might be so if the 
 doctrine of considerations were not well and clearly established, or 
 at least much better defined, than that of an infant's privileges. 
 The criterion is drawn from the doctrine of considerations, and Mr. 
 Bingham proceeds to show that the ratification of the infant's act 
 after he becomes of age, is recognized by the law, only by a relation 
 to the preceding act. Had that act never existed, or had it been 
 void in law, which is the same as if it had never existed, the 
 promise after age would have been a substantive and independent 
 promise, unsupported by any consideration, and so incapable, as 
 "nudum pactum" of incurring the subject of an action. The 
 acts of the infant, though not absolutely binding on him, was, at a 
 proper time, legally capable of ratification, and consequently only 
 voidable. To illustrate : if the infant had given a bond to induce 
 a female to live in prostitution with him, and after age had prom- 
 ised to pay the sum mentioned in the bond, that sum could not 
 have been recovered by action. The first act being void, the second 
 could not be referred to it legally. In law, the second being an 
 independent, substantial act, was in this instance without consider- 
 ation, and so not binding. The first act, therefore, was incapable 
 of legal confiirmation, and, consequently, absolutely void. {Bmg. on 
 Inf. 45-47.) This reasoning seems to be logical, and it is submit- 
 ted that the rule of Mr. Bingham furnishes a fair criterion by 
 i^hich voidable acts may be distinguished from void, although the 
 rule does not always constitute the ground of their being voidable. 
 Each of the rules suggested may be advantageously applied in 
 determining the important question as to the acts of an infant 
 which may be ratified on his coming of age. 
 
 § 16. There are innumerable adjudications upon the subject of con- 
 tracts of infants which are voidable, and it would seem that an author- 
 ity might be produced for almost every conceivable case that can arise. 
 
VOIDABLE ACTS OF INFANTS. 61 
 
 It has been held in the State of New York, that a deed of bar- 
 gain and sale, made by an infant, is like a feoffment with livery of 
 seisin, voidable only, and Justice Bronson, who delivered the 
 opinion of the court, stated that the rule seemed to be universal, 
 " that all deeds or instruments under seal, executed by an infant, 
 are voidable only, with the single exception of those which dele- 
 gate a naked authority." {Bool v. Mix, lY Wend. B. 119-131.) 
 
 The same learned judge lays down the same doctrine, and uses 
 similar language, in a later case in the same court. {GiUettY. Stem- 
 ley, 1 JSill B. 121.) In a still later case in the same court, it was 
 held that the conveyance of land by an infant was voidable only, 
 and that the grantee having title and possession under it, the 
 covenant of seisin therein could only be broken by the infant's 
 disaffirmance of it. ( Van NosiroMd v. Wright, Lalor's B. 260.) 
 
 In Arkansas it has been held that an infant may ratify every 
 contract of his, after coming of age. ( Yamghn v. Parr, 20 Ark. 
 B. 600.) And in the late court of chancery of the State of New 
 York, it was held that the deed of an infant, purporting to be 
 founded upon a valuable consideration, was not absolutely void, but 
 only voidable; and that to render a- subsequent conveyance by the 
 infant after he became of age an act pr dissent to the prior deed, 
 it must be so inconsistent therewith, that both deeds could not prop- 
 erly stand together. (The Eagle Fire Company v. Lrnit, 6 PaAgSs B. 
 635. Tide also Wheaton v. East, 5 Yerger''s [Tenn.] B. 41. Dear- 
 horn V. Eastman, 4 iT. ^. B. 441. Kims v. Beebe, 6 Oorm. B. 
 490.) A power of attorney, authorizing another to receive seisin 
 of land for an infant, or to complete his title to an estate, conveyed 
 to him by feoffment, is only voidable, because it is f(5r the interest 
 of the infant, and comes within the rule. (Story on Con. § 59 a/nd 
 cases cited.) 
 
 It has been decided in Massachusetts, that a parol authority to 
 transact business for an infant is not void, but merely voidable. 
 ( Whitney v. Dutch, 14 Mass. B. 463. Vide also 20 Am. Jur. 
 256.) It has also been held in the same state that the assignment 
 by an infant of a promissory note not negotiable was voidable only. 
 ( Willis V. TwamMy, 13 Mass. B. 204), and again that a release of 
 damages for an injury was valid unless disaflSrmed by the infant. 
 (BaTcer v. Lovett, 6 Mass. B. 78.) And once again, that a contract 
 of charter by an infant for the hire of a vessel was only voidable. 
 (12 PicTc. B. 425.) 
 
52 -LAW OF INFANCT. 
 
 It has been held in the State of North Carolina that the compro 
 mise of a claim by an infant may be avoided. {Tiftan v. Tifton, 
 3 Jones' Law R. 552.) An infant wife joining with her hus- 
 band in a mortgage of her real estate, may plead infancy in an 
 action to foreclose the mortgage, and thus avoid it. (Schneider' v. 
 Staihe, 20 Miss. B. 269.) A judgment, however, against an infant 
 in an action where he defends by a guardian ad litem, is conclusive, 
 and cannot be avoided. {Kegcmsy.Allcvm,,^Tex.B.'2i^.) So a judg- 
 ment against an infant in a suit to which his natural guardian is a 
 party, and appears, is binding. ( Wrisley v. Kenyon, 2 Will. [ Vt] 
 JS. 25.) A judgment, however, will be set aside, against an infant, 
 if he appeared by attorney, and not by guardian. {Zee v. Jenkins, 
 30 Mo. R. 592.) But when a nonsuit is given in an action 
 against an infant, it is no groimd of error that the infant appeared 
 by attorney and not by guardian. {Bird v. Pegg, 1 Eng. G. L. R. 
 153.) And infant parties are liable for costs. {Becmies v. Fwrley, 
 57 Eng. G. L. R. 1Y7.) 
 
 It has been held in the State of New York that the promissory 
 note of an infant is merely voidable and not void, and that a prom- 
 ise to pay, made by him after he attains his full age, renders the 
 note valid. {Eoerson v. Garpenter, 17 Wend. B. 419. Vide also 
 GoodseU V. Myers, 3 Ih. 479.) This same doctrine has been 
 expressly asserted, or necessarily implied in many other cases, 
 decided in the highest courts of this country and in England, and 
 may well be regarded now as the law of the land. ( Wa/msley v. IAti- 
 denUeger, 2 Band. [ Fa.] B. 478. LawsonY. Lovejoy, 8 Greenhafs 
 \Me.\ B. 405. Eesser v. Steimer, 5 Watts & Serg. R. 476. Jef- 
 fords, Adm. v. Ringgold, 6 Ala. R. 544. Reed v. BatcheMer, 
 1 Mete. {Mass.'] B. 559. Wright v. Steele, 2 Hf. H. B. 51. Msher v. 
 Jewett, Benton's [i\7ko BnmswicJii] B. 35. Dubois v. Whedden, 4 
 McCorWs \_S. <7.] B. 21. Gheshi/re v. Barrett, lb. 241. Bobo v. 
 Eamsell, 2 BaMey''s B. 114. Orvis v. Kimball, 3 N. E. B. 314. 
 Thompson v. Lay, 4 Pick. B. 48. Teft v. Sergeant, 18 Barb. B. 
 320.) The cases holding a contrary doctrine may be considered as 
 fully overruled. 
 
 The note of an infant has been held voidable, although he lived 
 apart from his father. {Tandy v. Mastcrson, 1 BihVs [By.] B. 330.) 
 So, also, in a case where it appeared that the infant was cariying on 
 a trade for himself, and the payee supposed him to be an adult. 
 ( Van Winkle v. Xetoham(S Ga/ines' B. 323.) And in another case 
 
VOIDABLE ACTS OP INFANTS. S3 
 
 where it was shown that the infant obtained the credit by falsely 
 and fraudulently representing himself to be of full age, and gave 
 his promissory note for the amount, the court held the note void- 
 able, and that the maJcer might avail himself of his infancy to defeat 
 it. {Conroe v. Bvrdsall, 1 John. Cos. 127.) The same rule would, 
 of course, apply in the case of a bill of exchange made or accepted 
 by an infant, as in that of promissory notes. ( Vide Hwrbt v. Mas- 
 sey, 2i Mig. O. L. R. 230.) 
 
 An indorsement of a promissory note by an infant, so as to trans- 
 fer the property to an indorser for a valuable consideration, is valid ; 
 and the iafant can only avoid his indorsement, in case the maker is 
 in default, by a plea of infancy. {NigktmgaU v. 'Whittkngton, 15 
 Mms. R. 274. Frazi&r v. Massey, 14 Ind. R. 382.) 
 
 An infant holder of a note may authorize another, by parol, to 
 transfer such note by indorsement, and the act of indorsement will 
 be voidable, and not void. {Ha/rdy v. Waters, 38 Mame [3 
 Seathl R. 450.) 
 
 An action against an infant for his deceit and false warranty, 
 may be defeated by a plea of infancy. {MeifriU v. Aden, 19 Vt. 
 R. 505. Prescott v. Norris, 32 N. H. R. 101.) That the infant 
 fraudulently represented himself to be of full age, does not mate 
 him liable for the goods bought, but the demand may be defeated 
 by the plea of infancy. {BaHlett v. Wells, 101 JEkg. C. L. R. , 
 836. Dc Roo V. Foster, 104 ih. 272. Merrimn v. Omwrnigham, 
 11 Cush. \Mass.'\ R. 40.) 
 
 In all cases where a judgment is regularly entered against an 
 infant, the same cannot be avoided by the plea of infancy in 
 an action brought upon the judgment. {Ludwicke v. Fwi/r, Y Ired. 
 [iT. <7.] R. 422. 
 
 In the State of Iowa they have a statute providing that an 
 infant cannot avoid his contracts and acts on the ground of 
 infancy, when he has induced the adverse party to believe that he 
 is of foil age {Code, §1489) ; and in such a case, a judgment may 
 be entered against the infant during his minority. {Oswald v. 
 Broderick, 1 Cla/rTc^s R. 380.) It has been repeatedly held that 
 an indorser of a bill of exchange, made by an iafant, may recover 
 against the acceptor or indei^er; but perhaps it maybe alleged 
 that every new party to a bill of exchange or promissory note, 
 originates, as it were, a new instrument to himself. Still the suc- 
 ceeding instrument, at least, arises or grows out of .the preceding; 
 
'54 LAW OF INFANCY. 
 
 and if the root be cut off, the tree must fall. The acceptor or indorser 
 of a forged bill of exchange, would be liable to an innocent holder, 
 upon the principle of estoppel; but in case of an infant's bill of 
 exchange, it would not be necessary to show that the holder had 
 no knowledge of the infancy of the drawer. The acceptor or 
 indorser of the bill of exchange of an infant, therefore, must be 
 liable, on the ground that the biU is only voidable as against the 
 infant. A lease of land by an infant is voidable and not void. 
 This has long been the settled law. 
 
 Lord Mansfield says : " The lessee can in no case avoid the lease 
 on account of the infancy of the lessor ; which shows it not to be 
 void, but only voidable." And he further affirms that " it is hetter 
 for infants that they should have an election." {Zouch v. Pwrsons, 
 3 Bv/rr. B. 1806. Vide also Holmes v. Bogg, 2 Mo. R. 652.) An 
 infant shopkeeper who contracts for goods to sell again in course of 
 his trade, or an infant who contracts for goods not necessaries, or 
 who borrows money, though he afterward actually lay them out in 
 necessaries, is clearly not absolutely liable for the payment of the 
 goods or money ; but as there is nothing to prevent him, when of fuU 
 age, from ratifying the contract if he choose, such contract must be 
 deemed only voidable, and not absolutely void. {Bing. on Inf. 
 29-31. Vide also Van Winkle v. Ketchcmt, 3 Cavnei B. 323. 
 Zowe V. Griffith, 1 Sootfs B. 458. Tuberville v. Whitehouse, 11 
 Eng. C. L. B. 326.) 
 
 A security given by an infant is held to be voidable merely 
 {Cockshott V. Bennett, 2 T. B. 366); and, in giving judgment. 
 Judge Ashurst remarked, that the infant was bound in equity and 
 in conscience to discharge the debt, though the law would not 
 compel him to do so ; but he may waive the privilege which the 
 law gives him for the purpose of secui-ing him against the imposi- 
 tion of designing persons ; and if he choose to waive his privilege, 
 the judge held that the subsequent promise would operate upon the 
 preceding consideration. This reasoning leads to the conclusion 
 that the security of an infant is only voidable ; but it rather mili- 
 tates against the position that the want of apparent benefit to the 
 infant is a criterion by which we can judge whether an instrument 
 is void or voidable ; for. when a mere security for another is given 
 by the infant no benefit has accrued or can accrue to him ; there 
 is neither apparent nor actual advantage. ( Vide Hyneh] v. Mar- 
 gcmtz, 2 Bwrr. B. 428, Curtin v. Patten, 11 8erg. c6 BoajoWs B. 
 
VOIDABLE ACTS OF INFANTS. 55 
 
 305.) A submission to arbitration by an infant is voidable, and 
 may be avoided or affirmed at his election, even after the award 
 is made. {Jones v. The Phoenix Bank, 8 IT. Y. E. 228. Barndby 
 V. Barndby, 1 Pick. B. 221. Bretton v. WilUams, 6 Munf. B. 
 453.) Upon the same principle, the settlement of damages by an 
 infant is voidable and may be avoided, although he may have 
 received the damages he claims. They may be extremely inade- 
 quate to the injury, and the law will protect him as well against 
 himself as against others. Thus, in .one case of an assault and 
 battery of an infant by an adult and an infant, which was settled 
 between the aggrieved and the adult, and the amount fixed was 
 actually received by the aggrieved infant, the court held, " that if 
 the jury, on the trial, are convinced that the satisfaction received 
 from the adult was a compensation for the injury, they will assess 
 for the plaintiff but nominal damages. But if the compensation 
 should be found inadequate, the jury wiU give such further sum 
 as, with the money received from the adult, will amount to a rea- 
 sonable satisfaction. The law very properly will not trust an 
 infant to fix a value oni his own rights, but this power is devolved 
 on a jury who will do justice to all parties." {Baker v. Lovett, T 
 Mass. B. 78.) 
 
 § 17. The authorities are clear that a mortgage of an infant of 
 his lands is voidable only, and may be enforced unless disaffirmed 
 when he comes of age. {The Boston Bamik v. Ohamberlam, 15 
 Mass. B. 220. The Eagle Fire Go. v. Lent, 6 Paige's B. 635. Sub- 
 hard V. Cumrwmgs, 1 Greenl. B. 11. Boberts v. Wiggins, 1 i\r. H. 
 B. 73. Palmer v. MiUer, 25 Ba/rb. B. 399.) 
 
 The contract of an infant to per&rm labor and service is voidable^ 
 and in an action brought by the infant for services performed under 
 it he will be entitled to recover such sum as he would be entitled 
 to had there been no express contract made ; on the assumption 
 that there is no express contract at all. ( Whii/ma/rsh v. Mall, 3 
 Bemw'sB.Zll) 
 
 The agreement and partition of lands by an infant is voidable, 
 and may be either affirmed or disaffirmed by him on his attaining 
 full age. {Overbach v. Heerrrwmce, Hopk. B. 337. Bamsford v. 
 Ba/insford, 8pea/ri Eg. \_S. ^.] B. 385.) 
 
 The contract of marriage by an infant is voidable only at the 
 election of the infant. {Hwnt v. Peake, 5 Cow. B. 475. SamiZton 
 V. Lomax, 26 Ba/rb. B. 615. . Holt v. Wa^d, 2 Strangers B. 937.) 
 
56 i-^W OF INEANCT. 
 
 After the contract is consummated by the marriage, of course, it 
 cannot be repudiated, but is as solenanly binding upon the parties 
 as though they were adults at the time of its consummation* 
 
 It has also been held that an executed compromise by an infant 
 of a claim against him is voidable, and that in such a case the acts 
 of the infant may be inquired into for the purpose of seeing whether 
 they are beneficial to his interest or not. {Pitcher r. The Twin 
 PlamkrEoad Co. 10 Ba/rb. B. 436.) 
 
 It was formerly supposed that a surrender by an infant was 
 absolutely void, but Lord Mansfield set the matter right by deciding 
 the precise question and holding that it was only voidable. His 
 language was : " I know of no judgment upon the groimd that 
 such a surrender is void. Most undoubtedly the other party cannot 
 say no. If an infant were to surrender an unprofitable lease, and 
 after acceptance the premises should be burned, overflowed, or 
 otherwise destroyed, the lessor never could say the surrender was 
 void. There is no instance where the other party to a deed can 
 object on account of infancy ; consequently the infant may let the 
 surrender stand or avoid it ; which proves it to be voidable. • If a 
 new case should arise, when it would be more beneficial to the infant 
 that the deed should be considered void, if he might incur a 
 forfeiture to be subject to damages, or a breach of trust in respect 
 to a third person tmless it was deemed void, the very principle of 
 the privileges and disabilities attached to infants would warrant an 
 exception in such case to the general rule." {Zouch v. Parsons, 3 
 Bwrr. B. 1806.) 
 
 Lord Coke lays down the rule that an exchange of land made by 
 an infant is only voidable, because the occupation of the land taken 
 in exchange is tantamount to livery, and also in respect to the 
 recompense. {Co. lAtt. 51, 5.) 
 
 It has always been held that judicial acts of the infant, such as 
 fine, recovery^ statute^ recognizance, are only voidable, and that in 
 a manner much more limited than other acts, because of the 
 
 * This statement Is made witli the qualifloation tliat the contract of marriage be consummated 
 after the infant attains to the age of discretion, which, by the common law, is fourteen years in 
 males, and twelve in females. If the marriage occurs before the age of legal consent the contract 
 may be avoided upon the Infant arriving at maturity (Ayman v. Bobb, 3 Johns. Oh. B. 49), though 
 H nrast -be done at once, because If the parties still continue to live together after that period i* 
 will be then too late to disaffirm the contract. So also a voluntary distribution of an intestate's 
 estate is not absolutely binding upon an Infiint, and may be avoided or ratified by tho Infant on 
 coming of age. (Ketcham v. SJiMby, S3 Miss. B. 161.) 
 
VOIDABLE ACTS OF INFANTS. 57 
 
 solemnity witli which they are accompanied. {Vide Bmg. on 
 Inf. 43, 44, wnd cases cited.) And it may be affirmed that all 
 judicial acts against an infant, such as judgments and decrees 
 without a guardian ad litem, and recognizances, are only Toidable. 
 {Porter's heirs v. Hdbinson, 3 MarshaWs B. 253. Allison v. Taylor, 
 6 Dana's B. 87. Bloom v. Bv/rdidk, 1 SilVs B. 30. Austm v. 
 Charlestown Female 8emma/ry, 8 Metcalfs B. 196, 203. Pat- 
 chin V. Cromaoh, 13 Yt. B. 330.) 
 
 It has been decided that an infant is not bound by his contract, 
 either parol or by deed, to pay a sum certam,, even for necessaries, 
 for he is not to be precluded by the form of his contract from 
 his right of estimating the actual worth of the articles supplied, 
 beyond which he is not bound. {Story on Contracts, % 81. Beebe 
 V. Toung, 1 BibVs B. 519, 520. Vent v. Osgood, 19 Pick. B. 572. 
 Mitchell V. Beynolds, 10 Mod. B. 85.) 
 
 An infant is liable in damages for a tort, but his promissory note 
 given as compensation for such damages cannot be enforced. 
 {Hanks v. Deal, 3 McCord's B. 257.) 
 
 The conveyance of an infant of land is voidable only. {Johnson 
 V. Bochuoell, 12 Ind. B.16. Jenks v. Jenks, 12 Iowa B. 196.) 
 
 Many other authorities might be cited upon the subject of 
 contracts of infants which are voidable only, but perhaps none 
 that enunciate any principle not covered by those already cited. It 
 is presumed that with the light of these cases a ready determination 
 of the question may be made, whenever and wherever it may arise. 
 
 It may be remarked that the infant may avoid his voidable 
 contracts, even though the party dealing with him supposed him 
 to be of age ; or the infant fraudulently represented himself to be 
 of age ; or the infant was in business, and in the habit of con- 
 tracting for himself. ( Van Winkle v. Setcham, 3 Camps' B. 323. 
 Conner v. Bi/rdsall, 1 Johns. Cas. 127. Stoolfoos v. Jenkins, 12 
 Serg. & Bande's B. 399, 403. Bwrley v. Bmsell, 10 N. H. B. 184. 
 Mmel V. Masterson's Adm. 1 Bibb's B. 330. Curtm v. Patton, 11 
 Serg. cfc Bawle's B. 309. Soustin v. Ooopm; Permington's B. 866.) 
 In none of these cases can the contract be enforced against the vidll 
 of the infant, though the infant may be liable in tort for his fraudu- 
 lent acts. 
 
 § 18. But Professor Parsons lays down the rule in general terms, 
 that " the contract of an infant (if not for necessaries) is voidable ; " 
 that is, he may disavow it, and so annul it, either before his 
 8 
 
58 LAW OF INFANCr. 
 
 majority or within a reasonable time after it {Pa/rsoni Mercantile 
 Law, 4) ; and in a note appended to this declaration, while frankly 
 admitting that the rule that those contracts are voidable only 
 which are for the infant's benefit, and those which are prejudicial 
 are absolutely void, is adopted and recognized by many authorities, 
 advances the opinion that this distinction is now practically obso- 
 lete, and unqualifiedly asserts that the more recent authorities hold 
 that all acts and contracts of infants (except, perhaps, the appoint- 
 ment of an attorney) are voiduble only, and not absolutely void. 
 (Ih. note 4.) 
 
 Now it is admitted that the tendency of modern decisions is as 
 indicated by Professor Parsons ; but it is, nevertheless, respect- 
 fully suggested, that the authorities holding, for example, that a 
 release from an infant to his guardian, or that an infant's release 
 of a legacy is absolutely void, have never been definitely over- 
 ruled. If it could be substantiated that this rule were generally 
 recognized by the courts, it would have the effect to save much 
 labor and research. But in view of the facts above suggested, it 
 will be safe for the present to bear in mind the principles and tests 
 laid down, and the authorities upon the subject, which have never 
 been overruled. The exception in favor of the appointment of an 
 attorney, is open to criticism, as well as the other cases in which 
 the acts of the infant are, by the authorities, held void. The reason 
 often assigned is, that if the power of attorney authorizes the con- 
 veyance of land, it rmist le prejudidal to the infcmt, which, under 
 the rule laid down, makes the contract void, but it is not readily 
 discovered why authorizing another to convey should necessarily be 
 more to his prejudice than conveying himself; and yet it is agreed 
 on all hands, at the present day, that his own conveyance is only 
 voidable, and not void. But this exception itself does not always 
 obtain, for if the power of attorney authorizes the reception of 
 seisin of land, it is then only voidable, and not void. Analogy 
 would indicate that the same rule should hold to this, as to all other 
 contracts, and that a warrant of attorney should be no more void, 
 jp&r se, than any other contract ; but it is admitted that the authori- 
 ties have established a different rule, and we humbly submit to it. 
 {Bimg. on Inf. 19, note 6.) This anomaly, however, is confined to 
 sealed instruments, and parol authority to transact business for an 
 infant, as we have seen, is not void, but voidable merely. ( Whit- 
 ney V. Dutch, 14 Mass. R. 463.) 
 
WSO MAY AVOID INFANTS ACTS. 59 
 
 So it still continues to be laid down by elementary writers upon 
 contracts, like Chitty, Oomyn and Story, tliat some contracts of 
 infants are binding, some voidable only, and others absolutely void, 
 to be determined by certain tests and criteria wliich are laid down. 
 
 CHAPTEE IV. 
 
 BY WHOM, AW3 AT WHAT TIME, VOHDABLE ACTS OF INFANTS ABE TO 
 
 BE AVOroED. 
 
 § 19. The privilege conferred by law upon infancy is a personal 
 privilege, and it is declared by Bingham, and other elementary 
 writers, that no one can take advantage of the relation but the 
 infant himself, and such at least is the language of the earlier 
 authorities upon the subject. {Bing. on Inf. 49. Kea/ne v. 
 Boycott, 2 H. Bl. R. 511. Yam, Brwmer v. Cooper, 2 Johns. B. 
 279. Jackson v. Todd, 6 ih. 257. Slocuvn v. Hooker, 13 Ban'h. 
 B. 536. Alsworth v. Cordtz, 31 Miss. B. 32. Olwer v. Eored- 
 let, 13 Mass. 237.) It is more accurate to say, however, that as a 
 general rule no one but the infant himself, or his legal representa- 
 tives, executors and administrators, can avoid the voidable acts, 
 deeds and contracts of an infant, for, while living, he ought to be 
 the exclusive judge of the propriety of the exercise of a personal^ 
 privilege intended for his benefit ; and, when dead, they alone 
 should interfere who legally represent him. {^ Kenfs Com. 237. 
 Smith V. Mayo, ^ Mass. B. 62. J£ussey\. Jewett, B). 100. Ma^- 
 tim, V. Mayo, 10 il. 137. Jackson v. Mayo, 11 ib. 147. Parsons 
 V. Hill, 8 Mo. B. 135. Jefford v. Bimgold, 6 Ala. B. 544.) The 
 rule would extend to privies in blood of the infant, but not to his 
 assignees or privies in estate only. {Bac. Air. Infamoy, 6. Hoyle 
 V. Stowe, 2 B&v. c& Battle's [iT. C] B, 323. Austin v. Charles- 
 town, 8 Mete. B. WQ. Breckinridge's Heirs v. Ormsby, 1 J. J. 
 Marsh. [Ey.] B. 236.) 
 
 It follows, from the rule, that, though the contract of an infant 
 be voidable, yet it is binding on a person of full age who contracts 
 with him. The indulgence which the law allows infants, to secure 
 them from the fraud and imposition of others, can only be intended 
 for their benefit, and is not to be taken advantage of by persons 
 of riper years, who are presimied to act with sufficient prudence. 
 
60 LAW OF INFANCY. 
 
 If it were otherwise, this privilege, instead of being a protection 
 to the infant, might, in many cases, turn greatly to his detriment. 
 {Bing. on Inf. 49.) Every person, therefore, deals with an infant at 
 anns-length, at his own risk, and with a party for whom the law 
 has a jealous watchfulness. {Story on Con. § 13.) 
 
 Infancy, and the burden of proving it, rest upon the person 
 setting it up. {Cam/pbell v. Wilson, 23 Texas B. 267.) 
 
 § 20. The authorities are quite numerous to show that an adult 
 cannot disaffirm his contract with an infant, but only a few wiU 
 need to be referred to. Among the earlier cases, where an infant 
 brought an action on a contract for the sale of some grass, the 
 defendant was not permitted to arrest judgment, on the ground 
 that the plaintiff, being an infant, the defendant was not bound by 
 his agreement. {Smith v. JBowin, 1 Mod. B,. 25.) So on a promise 
 to an infant to do such an act, on consideration that the infant 
 promised to pay such a sum, in assumpsit by the infant, he had 
 judgment, though the money was not paid ; for the court held that 
 the infant's promise was only voidable at his own election, and not 
 at the election of him to whom it was made. {Forester's Case, 1 
 Sid. a. 41.) A man of full age and a female of fifteen promised 
 to intermarry, and, after request by her, he married another woman ; 
 an action on the case was brought against him for the violation of 
 the contract. The man objected that the agreement was nudvm 
 paciAmi, and not reciprocal, as he could not compel her while an 
 infant to perform her promise ; but the court held that the infant's 
 promise was only voidable at her own election and not at the 
 election of him to whom it was made ; and therefore the action 
 was sustained. {Holt v. Wa/rd, 7 Strcmge^s B. 937.) 
 
 This doctrine in Strange has been expressly approved by the 
 supreme court of the State of Ifew York, and others of the Amer- 
 ican States. {Mwnt v. Peake, 5 Cow. B. 475. Vide also WiUa/rd 
 V. Stone, 7 ih. 22. Cammrni v. Alsberry, lA.K. Marsh. \Ky.] B. 76. 
 Wamith v. Cooper, 5 Sneed's [Tenn.'] B. 659. Pool v. Pratt, Chip. 
 [ Vt.'] B. 252.) In another case, an infant brought an action of cove- 
 nant, and set forth in her complaint that she had covenanted to serve 
 the defendant seven years, and that the defendant had covenanted to 
 teach her to sing and to dance, and to find meat, drink, washing 
 and lodging, and that the defendant, within the time, turned her 
 out of the house, and did not teach her to sing^ and dance. It was 
 objected, in arrest, of judgment, that the covenants being recipro- 
 
WSO MAT AVOID IKPANt'S' ACTS. 61 
 
 cal, and the infant not bound by her covenant, neither conld the 
 mistress be by hers. But the court held that though the contract 
 might be avoided as to the infant, yet it bound her mistress, who 
 was of full age. {Famham v. Atkms, 2 Mi. JR. 623.) 
 
 It will not be necessary to refer to more of the older authorities 
 on this subject. Those referred to wiU suffice. 
 
 § 21. The more modern authorities holding that the adult con- 
 tractor with an infant is liable upon his contract are not so numerous 
 as the more ancient, and yet the question is well settled. 
 
 In a case which came before the court of errors of the State of 
 New York in 1835, the chancellor (Walworth), who gave the lead- 
 ing opinion, said : " As to the adult party, a joint promise made 
 by him and the infant is binding as a joint contract ; and a recovery 
 may be had against Jiim upon a declaration stating it as a joint 
 contract made by him and the infant, although the infant avails 
 himself of the defense of infancy." {Mason v. Damdson, 15 Wend. 
 a. 66.) The same doctrine was sanctioned by a majority of the 
 court of appeals of the State of Virginia. {Oole v. Permel, 2 
 Bamd. R. 178.) 
 
 In another case, in the supreme court of New York, Harris, 
 J., sitting at special term, says: "It is also a general rule that 
 no one but the infant himself can avoid his voidable contract. 
 If, therefore, the contract of an infant be voidable merely, and the 
 infant alone can avoid it, how can it be treated as void until the 
 infant had made his election to disaffirm it." {Sloowm v. Hooker, 
 12 Ba/rb. S. 564.) And on re-examination of this same case at 
 general term, Parker, J., said, "If a promise by an infant were 
 absolutely void, it would form np consideration for a promise made 
 to him. But it is well settled that an infant may maintain an 
 action on his contract." {Slocmm v. Hooker, 13 Bwrb. H. 53T.) 
 
 In Indiana it has been held that an adult contracting with an 
 infant for the conveyance of land is bound by the agreement, and 
 must pay the contract price and take the infant's deed. {Buson v. 
 Carlton, 13 Ind. B. 354.) 
 
 The cases not only hold that the adult contractor is liable upon 
 his contract with an infant, but that an adult joint contractor can- 
 not avail himself of the objection that his co-contractor was an 
 infant. There is, therefore, no question, upon authority, that all 
 parties dealing with an infant, whether as co-contractors with him 
 or as adverse parties, are liable upon such contracts, co-contractors 
 
62 LAW OF INFANOT. 
 
 in any event, and adverse parties, until the contract is disaffirmed 
 by the infant. In England it has been held that the infancy of 
 one of several joint contractors may be set np to defeat the action as 
 to the infant, but that this is no discharge to a separate action 
 against the others. {Gillow v. IdlUe, 27 Eng. C. L. B. 648.) And 
 further, that the infancy of the payee of a bill of exchange is no 
 answer to an action against the drawer by the indorser {Orey v. 
 Cooper, 26 Eng. O. L. B. 36) ; but that the confession of infancy 
 on the record bars a joint action ex-contractu. {Boyle v. Webster. 
 79 Eng. G. L. B. 950.) 
 
 § 22. For the same reasons which bind the adult party deahng 
 with infants, as a general rule, none but the infant himself or his 
 personal representatives, privies in blood, can avoid a voidable act, 
 contract or conveyance of the infant. A few of the adjudicated 
 cases will sufficiently illustrate the rule. Thus, it has been held 
 that if an infant seised in fee make a feoffment and die, his heir 
 may enter ; and if seised in tail male, he make a feoffment and die, 
 his son, being heir, general and special, may enter. ( WhittmgtorHs 
 case, 8 CoMs B. 42 5, 43 a.) If the infant be attainted of felony 
 after the feoffment. Lord Coke says that the issue would be driven 
 to his formedon, for his entry is not lawftd in respect of his estate 
 only, but of his blood, which is corrupted. {Co. LiM. 837 a) But 
 in some of the cases it is said that the issue may enter. ( Vide 
 Whitlmgton's case, swpra^ And if such infant tenant in tail 
 have no sons, but only daughters, his brother, being special 
 heir, "^er forman doni" made to his father, may avoid the 
 feoffment, because he is privy in blood, and has the land only by 
 descent. (/5.) 
 
 Ill one case in the State of Massachusetts the guardian of an 
 infant undertook to avoid the sale of personal property by his 
 ward, but Wilde, J., said : " But it has been further argued that 
 these sales, if voidable, may be avoided by the plaintiff. Clap, 
 by virtue of his authority as guardian of the minor. No case has 
 been cited in support of this position, and we know of no position 
 of law by which it can be maintained. The authority and interest 
 of a guardian extend only to such things as may be for the benefit 
 and advantage of the ward. If an infant makes a contract from 
 which he derives a benefit, it cannot be avoided by his guardian, 
 for this, being injurious to the infant, would be a violation of the 
 guardian's duty. {(MoeT v. HoredMt, 13 Mass. B. 239.) 
 
irxiu jxLAx ji.¥uiu ir(j!'ji.j.yTa JiCTS- 63 
 
 § 23. The rule that' pri-vies in estate simply shall not take advan- 
 tage of the act of the infant, is well settled, both by adjudications 
 in this country and in England. It has been decided that if a donee 
 in tail, within age, make a feoffment in fee, and die without issue, 
 the donor shall not eriter, because there was priyity between them 
 only in estate, and no right of entry accrued to the donor by the 
 death of the donee. So if two joint tenants be in fee, within age, 
 and one makes a feoffment in fee of his moiety, and dies, the survi- 
 vor cannot enter by reason of the infancy of his companion, for by 
 his feoffment the jointure was severed, so long as the feoffment 
 remained in force ; and therefore in such case the heir of the feoffor 
 shall have ^^dum fuit mfra mtatem" or shall enter into the 
 moiety. But if two joint tenants be within age, and they join in 
 a feoffment, in such case a joint right remains in them ; and there- 
 fore if one dies, the right shall survive ; the survivor shall have the 
 right of the land as from the first feoffee, and may enter in respect 
 of the right accrued to him. ( WhUtmgtorHs case, 8 Cohens R. 43.) 
 In another case, however, Doddridge, J., thought the donor might 
 enter, because he could not bring his "formedon,^'' and, there- 
 fore, without entry, would have no remedy. {Palmer's B. 254.) 
 But it does not appear why, in such case, the donor should not bring 
 his ^^formedon " — a writ formerly used to recover entailed property. 
 If he could not bring it, because or while the feoffment of the 
 infant was voidable, yet there seems to be no reason why he should 
 not bring it, when, by the death of the infant witliout issue, the 
 tortious feoffment was confirmed, or at least past avoidance. This 
 is the reasoning of Mr. Bingham {Bmg. on Inf. 53, note m), and 
 though we do not have this writ, in a technical sense, in this 
 country, the same principle is frequently involved in cases of the 
 present day. If an infant seised in right of his wife, make a feoff- 
 ment and die, his heir cannot enter, because no right descends to 
 him ; but inasmuch as the baron, if he had lived, might have 
 entered in right of his wife only, and not in respect of atiy right 
 which her husband had, the wife might, in such case, have entered 
 in her own right. , {Whitbmgton^scase, sv^a.) But if the feme, 
 being only a tenant in tail, the baron within age, had made a gift 
 in tail to another, by which the baron gained a new reversion in 
 fee, and died, the wife might enter, or the heir of the baron, who 
 had a new reversion descended to him. But if the heir entered, 
 as it could only be to defeat the tail given by the infant, his estate 
 
64 LAW OF INFANCY. 
 
 vanislied; and, by operation of law, the feme was immediately 
 Beised of her old estate. ( WMtbmgton^s case, 8 CoMs R. 43.) 
 
 In the case before Lord Mansfield, often referred to, it was held 
 that where a tenant for life and an infant in remainder levied a 
 fine, the infant might reverse the fine as to himself for the inherit- 
 ance for nonage, but that the tenant for life was bound by his 
 assent to the fine and joining in it, not to enter for the forfeiture, 
 on the principle that the privilege of the infant being as a sMeld, 
 and not as a sword, " shall not be turned into an offensive weapou 
 oi fraud or mjvsUoe." {Zoitch v. Parsons, 3 Burr. It. 1802.) 
 And in a case before the courts of ISTorth Carolina, it was held that 
 privies in estate simply could not avoid the infant's deed. {JSoyle 
 V. Stowe, 2 Dm. <& Battle's B. 323.) 
 
 § 24. It is held that privies in law, as the lord by escheat, are 
 equally incapable as privies in estate, of avoiding a conveyance 
 made by an infant. On this principle, if an infant make a feoffment 
 and die without heir, the law is not permitted to avoid it. In one 
 case however in which this rule was stated, it appeared that the 
 feoffment of the infant was made iy attorney, and so was absolutely 
 <\ioid, and the court resolved that the land should escheat. ( Whit- 
 tmgton's case, 8 Colce's B. 44.) The heir or executor, sued on the 
 infant's bond, may avoid it by pleading the infancy of the obhgor. 
 The heir is privy in blood, and the executor stands exactly in his 
 testator's place, and both avoid the instrument in respect of the 
 estate transmitted. {Bing. on Inf. 55.) The heir is, of course, 
 clearly within the letter of the rule, and the executor is within the 
 spirit of the rule, by conventional relation. 
 
 § 25. As to the time of avoiding voidable acts, it may be 
 observed, that the infant's privilege of avoiding acts performed 
 with jxidicial solemnity, and constituting matters of record, as fines, 
 recoveries and recognizances, is much more limited, in point of 
 time, than his privileges of avoiding matters in pais, or matters 
 not judicial. The former must be avoided by the infant himself, 
 and during his minority, and by some act of record, as by a writ 
 of error, or an audita querela. {Tucker v. Morelamd, 10 Peter's 
 B. 71.) This was always the rule in England, because the fact of 
 infancy was anciently tried by inspection, which is not a part 
 of our law. (20 Am. Jur. 258.) But the rule however prevails 
 in this country, as well as in England, that in such cases the matter 
 must be avoided during infancy. {Tucher v. Moreland, m,pra. 
 
WSEN VOIDABLE ACTS TO BE AVOIDED. 65 
 
 Breckinridge^ s Heirs v. Ormsh/, 1 J. J. Marsh. 252.) From the 
 nature of the case, it must be so, because after full age, infancy or 
 not, when the act occurred, must be tried by a jury and nothing 
 can be averred against the record, which implies that the act 
 occurred after full age, or that the person could not have sufiered a 
 common recovery whilst he was a minor. Besides the act must be 
 vacated with the same solemnity that it was entered into. {Bing. 
 on Inf. 56, aiid cases cited.) It has been accordingly held that if 
 an infant suffer a common recovery, in which he comes in as a 
 voucher in his proper person, he may in a writ of error avoid it, 
 because it is error ; yet, at his full age, he cannot enter into the 
 land, and avoid it by entry before he has reversed the recovery by 
 writ of error, for judgments are not to be subverted by matter " m 
 poAs" without matter of record. (/5.) Though if an infant 
 appear ly attorney, and suffer a recovery, it may be reversed for this 
 error, after the infant comes of age ; because it may be tried by the 
 country, whether the warrant of attorney was given under age' 
 or not ; and not be tried by inspection of the court like the fact of 
 nonage. {Roiy v. Bdbinson, 1 Lemmas B. 142. Bdby v. Bolmv- 
 son, 1 Sid. B. 321.) And if a feme-covert, being under age, levies 
 a fine which she afterward wishes to reverse, she may be brought 
 into court by habeas corpics, in order to her inspection ; and. it 
 seems the fine may be set aside on motion, for the husband may 
 not be williag, nor permit her to proceed by writ of error. 
 {Hutchinson'' s case, 3 Zevim,£s B. 36.) 
 
 These rules with respect to fines and common recoveries may be 
 regarded as of little or no practical importance at the present day, 
 from the fact that alienation by matter of record is not now known 
 in practice, either .in England or in many of Ijie American States. 
 It is true that fines and recoveries have been swept away by a 
 recent statute in England, and more simple modes of assurance 
 have been substituted ; and the conveyance by common recovery, 
 formerly in use in many of the United States, has become obsolete 
 with the disuse of estates tail ; and yet the doctrine of uses still 
 prevails in some of the states, and a process similar to fines and 
 recoveries is stUl somewhat in use. At all events, the j[)Tvnciple, 
 so far as infants are concerned, it is well to understand. Questions- 
 involving the principle frequently arise, even where fines and 
 recoveries are abolished by statute. A judgment recovered againsfr 
 an infant, who appeared in the action by attorney, may be set aside 
 9 
 
66 LAW OF INFANCY. 
 
 by the infant when he attains fall age, by a writ of error. {Powell 
 V. Gott. 13 Mass. B. 458.) 
 
 § 26. Conveyances of real property by an infant, either in fee, 
 for life or years, cannot be avoided or disaflBrmed until the infant 
 attain to full age. {Eoof v. Stafford, 7 Cow. B. 183.) It has 
 been held, however, that in the mean time the infant may enter 
 the premises and take the profits. {Bool v. Mix, 17 Wend. B. 
 119.) 
 
 So, also, it has been held that, though an infant cannot avoid 
 his deed of real estate until he come of age, yet he may, by his 
 next fi-iend or guardian, as the practice requires, bring an action in 
 equity, during minority, and get a receiver of the rents, issues and 
 profits appointed. {Mathewson v. Johnson, 1 Hoff. Ch, B. 560.) 
 So in England it was held that, if an infant make a feoftment, he 
 may avoid it by entry, either within age or at full age ; and if he 
 dies, his heir may enter or have a " dum fuit infra cdatem.^^ 
 That the feoflSnent being a conveyance performed -R-ith much 
 greater solemnity than any other, the infant cannot, as in case of 
 a lease, surrender a grant, have an assize, or bring trespass, before 
 he has avoided the feoffment by entry ; for it is presumed, in favor 
 of such solemnity, that the assembly of the heirs "then present 
 would have prevented it if they had perceived his nonage ; and, 
 therefore, the feoffment shall continue until defeated by entry, 
 which is an act of equal notoriety. But it was at the same time 
 decided that, though the infant may avoid his feoffment by entry 
 during his nonage, yet he cannpt have a " duTn fuit infra cetatem" 
 till he comes to his full age ; for it is said that he is allowed to 
 enter, that he may save to himself the profit in the mean time, 
 though such entry, being the act of an infant, seems to be as void- 
 able at full age as his feoffment. But if he were to recover in a 
 writ of " dum fmt infra cetatem,^^ the judgment would bind his 
 election, and therefore it can only be brought when he comes of 
 full age. {Bi/ng. on Inf. 60 and 61, and cases cited.) 
 
 The consequence of this doctrine would seem to be, that the 
 feoffment still continues capable of confirmation at full age, notwith- 
 standing such entry, which is similar to the rule in this country as 
 'extracted from the cases of Bool v. Mix and Matthewson v. John- 
 son, above referred to. It is suggested, however, that this is about 
 equivalent to allowing the infant to make his final election during 
 minority, for if he was disposed to confirm the feoffment at full age, 
 
WHEN VOIDABLE ACTS TO BE AVOIDED. 67 
 
 he would, at the same time, be ■willing to make an ahsolute con- 
 veyance, which would amount to the same thing. 
 
 § 27. If the heir, within age, assign to the wife more land in 
 dower than she ought to have, he himself may have a writ of 
 admeasurement of dower at full age, by the common law. So if 
 after such assignment the heif die, his heir may have such writ to 
 rectify the assignment. And if the heir, within age, before the 
 guardian enters, assigns too much in dower, the guardian may 
 • have a writ of admeasurement of dower, though the heir, in whose 
 time the assignment of too much was by the guardian, ^cannot 
 have such writ till his full age, for the reason that until then the 
 interest of the guardian continues. {Bmg. on Inf. 62, 63, cmd 
 cases cited.) 
 
 It is well to remember that in aU these cases of real property 
 where the act of the infant cannot be disaffirmed until he attain 
 to full age, such disaffirmance must be made before his entry shall 
 be barred by the statute of limitations. In the State of Illinois it 
 has been held that a minor must disaffirm his deed within three 
 years after he becomes of age. {Blcmkenship v. Sireet, 25 lU. 
 JR. 132.) 
 
 § 28. It may be stated as a universal rule, that aU executory 
 contracts, which are voidable on the ground of infancy, may be 
 disaffirmed during infancy by the minor as well as after he has 
 attained to full age. So, also, all contracts respecting property, 
 which are executed by delivery of some article, on payment of 
 money, may be rescinded by the infant, both before and after the 
 time of his coming of age ; though such disaffirmance will in no 
 case avail after the statute of limitations has fully run. ( Vide 
 Lessee of Drake v. Bamisey, 5 Ohio H. 251. Oresvng&r v. Welch, 
 15 *5. 156.) 
 
 In a case in England, the chief justice observed that in every 
 instance of a contract, voidable only by an infant on coming of 
 age, he is bound to give notice of disaffirmance of the contract in 
 a reasonable time. {Holmes v. Blogg, 8 Taimt. B. 35.) But by 
 the authorities in this country, it would seem ordinarily that a 
 conveyance of real estate, by an infant, may be disaffirmed at any 
 time, so long as an action of ejectment is not barred by the statute 
 of limitations. {Drake's Lessees v. Ramsey, sv^a.) Still, in the. 
 State of Vermont, it was held in one case when all the equities 
 were against the act of disaffirmance, that the infant was bound by 
 
68 LAW OF INFANCY. 
 
 his voidable contracts, unless disaffirmed withm a reasonable time, 
 and that eleven years past majority was not a reasonable time. 
 [Bigelow v. Kinney, 3 Vt. B. 353.) 
 
 It is declared by statute, in the State of South Carolina, that 
 minors shall have five years after their coming of age to prosecute 
 their claims to land, and four years to prosecute personal claims ; 
 and this, whether within or out of the state, when coming of age. 
 But if an action be commenced for the recovery of land within 
 the five years, a nonsuit, or verdict, shall not be conclusive against • 
 him, but he may at any time within two years commence an action 
 for the same land. {Edson v. Dmis, 1 McGord's B. 555. Bose v. 
 Dcmiel, Gonst. ^.549.) 
 
 Bingham states the rule that, " as to all other conveyances in 
 pais, except enfeoffments, whether in fee, tail, for life, or years, it 
 seems the infant or his representative, may avoid them by trespass, 
 assize, or entry, within or after age; or by 'dumfuit imfra (Bta- 
 Um^ after age, or death within age; and this '■ dum fuit infra 
 CBtatem ' lies in the pro, in the pro and cui, or in the past." And 
 he says, " a surrender of a copy-hold estate may be avoided in like 
 manner," and refers to numerous authorities to sustain his position. 
 {Bing. on Inf. 62.) 
 
 Mr. Bingham further lays it down that, " obligations, and dues 
 in general, may be avoided at any time, by pleading nonage ; but 
 it must be specially pleaded, and cannot be give in evidence under 
 the general ' non est factum,^ because these deeds have an opera- 
 tion from the delivery." And further, he says, " parol agreements, 
 or contracts, may be avoided within or after age, by pleading the 
 general issue, ^non asswrrvpsit^ and giving infancy in evidence 
 under it. Infancy may also be specially pleaded in this action; 
 and payment of money into court will not preclude a defendant 
 from availing himself of nonage, because the money may have 
 been paid into court for necessaries." (Ih. 63, 64) 
 
 § 29. In a leading case in the court of errors in the State of New 
 York, Jones, Chancellor, said : " The general rule is that an infant 
 cannot avoid his contract executed by himself, and which is there- 
 fore voidable only while he is within age. He lacks legal discretion 
 to do the act of avoidance. But this rule must be taken with the 
 distinction that the delay shall not work unavoidable prejudice to 
 the infant," or the object of his privilege, which is intended for his 
 protection, would not be answered." He then says: "The true 
 
WHEN VOIDABLE ACTS TO BE AVOTDED. 69 
 
 rule, then, appears to me to be this : that when the infant can enter 
 and hold the subject of the sale till his legal age, he shall be inca- 
 pable of avoiding till that time ; but when the possession is changed, 
 and there is no legal means to regain and hold it in the mean time, 
 the infant, or his guardian for him, has the right to exercise the 
 power of rescission immediately." Stafford v. Boof, 9 Cow. B. 628.) 
 This case is an authority in favor of the doctrine that an infant may 
 avoid his sale of chattels before or after he is of full age, and the 
 same doctrine is reiterated in a later case in the superior com-t of 
 the same state, one of the head-notes to which is : " It seems a sale 
 and manual delivery of chattels by an infant may be avoided while 
 under age." {Bool v. Mix, 17 Wend. B. 119. Tide also Slviprmm v. 
 Horton, 17 Conn. B. 481.) And it may be stated as a general 
 proposition that all contracts of a personal kind or relating to 
 personal property may be avoided under age and immediately, 
 otherwise irreparable injury might follow. {Stafford v. Boof, sv/pra. 
 WiUis V. TwamMy, 13 Mass. B. 204. But vide diohim controi in 
 Brady v. McBemney, 23 Mddne B. 517, 525, and vide Farr v. 
 Summer, 12 Vt. B. 28, 31. SMpman v. Horton, 17 Cotwi. B. 481.) 
 § 30. With respect to the time, therefore, when the voidable acts 
 of an infant may be disaffirmed or avoided, it may be regarded as 
 well settled by the authorities, both in England and in this country, 
 that all executory contracts and all contracts respecting property, 
 which are executed, by delivery of some article, on payment of 
 money, including, of course, all sales of personal .chattels, may be 
 avoided or disaffirmed by the minor, both before and after the time 
 of his coming of age ; but that conveyances of real property by 
 feoffinent on delivery of the deed, which comes in lieu of payment, 
 or by any other conveyance of such property in fee for life or 
 years, cannot be avoided before the mfant attains to full, age, and 
 that as to the party by whom the voidable acts of the infant may 
 be disaffirmed or avoidedj the true rule is that no one but the 
 infant himself, or his legal representatives, executors and adminis- 
 trators, possess or can be permitted this privilege or right. 
 
70 LAW OF INFANCT. 
 
 CHAPTER V. 
 
 m WHAT MAITNEE VOIDABLE ACTS OF INPAUTS ARE TO BE DISAFFIEMED 
 
 OR AVOIDED EFFECT OF THE DISAFFIKMANOE OF VOIDABLE ACTS OF 
 
 INFANTS. 
 
 § 31. The manner in whicli the acts of an infant may be dis- 
 affirmed, is by an action to recover the property conveyed or 
 assigned, . and setting up the infancy of the grantor, vendor or 
 assignor, in answer to the conveyance ; or when sued to enforce 
 his executory contracts, by pleading specially his infancy as a 
 defense. The infant may also disaffirm his conveyance of real 
 estate, by a reconveyance of the same premises to a third person ; 
 but in this case, in order to constitute a disaffirmance, the second 
 deed must be so inconsistent with the first, that both cannot con- 
 sistently stand. So the infant may disaffirm his sale of personal 
 chattels by a resale of the same chattels to a third person. 
 
 The contract for service by an infant may be disaifirmed by 
 leaving his employer and entering into the service of another. 
 
 The books seem to leave the question in some obscurity, when 
 and to what extent a positive act of confirmation on the part of 
 the infant is requisite in order to render his acts perfect ; but in 
 regard to his disa-ffirTncmoe, there need be no difficulty, for the 
 reason that this simply requires some positive and decided act of 
 dissent, adverse to the original act. {Vide Harris v. WaU, 1 
 Wels. Hurl. & Gor. R. 122, 128.) And generally it may be 
 affirmed that the original contract or act must be vacated with the 
 same solemnity that it was entered into ; and in every case it must 
 be by some act clearly demonstrating the design of the infant to 
 renounce his former engagement or transaction. A judicial pro- 
 ceeding or matter of record (;an be avoided on account of infancy 
 only by matter of record, within the rule above stated. A judg- 
 ment entered against an infant without a guardian ad litem, may 
 be reversed by writ of error after full age, and the trial is per pais. 
 {Slvver V. ShelbacJo, 1 Dallas H. 165. Vide also Swan v. Horton, 
 14 Gray's [Mass.} S. 179. Crockett v. Br&m, 5 il. 399.) 
 
 In Arkansas it has been held that a judgment entered against 
 an infant cannot be avoided by any act in pais, but only by some 
 matter of record. {Trapnall v. State Bank, 18 Arh. R. 53.) 
 
 In Yirginia it is error to take judgment against an infant defend- 
 ant who is not stated in the record to have appeared by guardian 
 87 
 
sow VOIDABLE ACTS ARE AVOIDED. Yl 
 
 ad litem. {Fox v. Cosiy, 2 Call's Ji. 1. Edberts' Widow v. Stem- 
 ton, 2 Munf. B. 129. Brovm v. MoEea's Ee'r, 4 ib. 439. Cole 
 T. Permell, 2 RandolpKs R. 174.) But a decree obviously for the 
 benefit of the infant, will not be set aside. {Brown v. Armistead, 
 6 ih. 695.) 
 
 In New York the taking of a judgment against an infant 
 defendant for want of an answer, without appointing a guardiaji 
 ad litem, is an irregularity, and the judgment wiU be set aside on 
 motion, without terms, even though the plaintiff had no knowledge 
 that the defendant was a minor. {Kellog v. KlooTc, 2 Code R. 28.) 
 The rule is the same in Indiana. {SiTivmons v. Simmons, 6 Ind. 
 R. 8.) And the same doctrine prevails in Missouri. {Randall v. 
 Wilson, 24 Mo. R. T6.) 
 
 § 32. In a case in the late court of chancery of the State of E"ew 
 York, it appeared that an infant conveyed certain real estate to a 
 party, who, intervening the time of the conveyance and the coming 
 of age of the infant, mortgaged the land to one party and afterward 
 conveyed it to another, and the latter party took a quitclaim deed 
 from the infant grantor, and on bill filed to foreclose the mortgage, 
 undertook to overreach the mortgage, claiming that the deed to 
 him was a disaflfirmance of the deed to the mortgagor, the original 
 grantee of the infant ; but the chancellor held that the deed from 
 the infant subsequently to his coming of age, to the grantor of the 
 infant's original grantee, was intended to operate as a mere confir- 
 mation of the former title, and not as a disaffirmance of the pre- 
 vious deed, and then laid down the rule that " to render a subse- 
 quent conveyance by an infant an act of dissent to his prior deed, 
 it must be inconsistent therewith, so that both cannot properly 
 stand together." {Eagle Eire Compamy v. Lent. 6 Paige's R. 635.) 
 So in a case in the supreme court of the same state, where an 
 infant had sold his personal property, and delivered it to the pur- 
 chaser, but, notwithstanding, brought his action for the thing sold, 
 the bringing of the action was held a disaffirmance of the sale, and 
 the infant was permitted to recover. {Roof V. Stafford, 7 Cow. R. 
 179. Vide also SMpman v. Morton, 18 Conn. R. 481.) 
 
 In another case in the same court it appeared that an infant 
 conveyed lands which were in an uncultivated state, and after he 
 became of age, the lands being still unoccupied, conveyed the same 
 to another person, and the deed was duly registered, it was held that 
 the last deed was a disaffirmance and complete avoidance of the 
 
72 LAW OF INFANCY. 
 
 first. {Jackson v. Ca/rpentm'^ 11 Jofuns. B. 639.) The conveyance 
 in this case was not attended -with all the solemnities of a feofiinent 
 and livery, and it was accordingly declared to be defeated by the 
 second deed, which was an act of the same description and of equal 
 notoriety with the first conveyance. Had the infant given livery 
 of seisin he could have manifested his dissent only by an entry 
 upon the land. When the first grantee is in possession, claiming 
 and holding under his deed from the infant, a second deed would 
 be an act of maintenance and not effectual to reconvey the premises. 
 But when the infant conveys by a simple bargain and sale, a second 
 ■ deed after the infant comes of age is a disaffirmance of the first. 
 ( Vi'de Jacksonr. Bmichm, 14 Johns. R. 127. Jackson v. Todd, 6 
 *&. 257, and Roberts v. Wiggms, IJS.U.R. 75.) 
 
 It has . been held in some of the states that the conveyance of 
 
 real estate by an infant may be disaffirmed after full age by a 
 
 conveyance to another person, without entry and without restoring 
 
 the purchase-money. {Pitcher v. Laycock', 7 Ind. R. 398. Feter- 
 
 I son V. Zaik, 24 Miss. [3 Jones'] R. 541. 
 
 In still another case in the supreme court of the State of New 
 York the rule is laid down upon authority that " when an infant 
 executes a conveyance of his real estate he may avoid it on coming of 
 age, and recover by action what he has thus conveyed. So when an 
 infant sells his personal property and delivers it to the purchaser, 
 he may, notwithstanding, avoid the sale, and bring an action for the 
 thing sold." {Medhury v. Watrous, 7 HilVs R. 113.) And in a 
 lea,ding case in the supreme court of the ITnited States, Mr. Justice 
 Story, who delivered the opinion, said : " There is no doubt that an 
 infant may avoid his act, deed or contract by different means, 
 according to the nature of the act and the circumstances of the 
 case. He may sometimes avoid it by matter vnpwis, as in case of 
 a feoffment by entry, if his entry is not tolled ; sometimes by plea, 
 as where he is sued upon his bond or other contract ; sometimes by 
 suit, as when he disaffirms a contract made for the sale of his 
 chattels and sues for the chattels ; sometknes by a writ of error, as 
 when he has levied a fine during his nonage ; sometimes by a writ 
 of axidita guefela, as when he has acknowledged a recognizance or 
 statute, staple or merchant ; sometimes, as in the case of an alien- 
 ation of his estate during his nonage, by a writ of entry, dumfuit 
 mfra wiatem, after his arrival of age." {Tucker v. Moreland, 10 
 Peters' R. 71.) In another case in the supreme court of the State 
 
sow VOIDABLE ACTS ARE AVOIDED, 73 
 
 of New York, when it appeared that an infant had contracted to 
 serve the defendant a certain time, and had performed labor under 
 his contract, when he abandoned it, and brought an action by his 
 next friend to recover the actual value of his labor, the court held 
 that this was a disaflBrmance of the contract, and the plaintiff was 
 permitted to recover, and the defendant's offer to recoup damages 
 for the avoidance of the contract was overruled. ( 'WKiimw/rsh v. Hall, 
 3 Demo's R. 375.) And in the State of Indiana it was held that an 
 infant may recover for services performed by him under a special 
 contract not fulfilled, and the rule was declared the same as in ISTew 
 York. ( Van Pelt v. Corwine, 6 Ind. H. 363.) But in the Stat© 
 of Alabama it was held that if an infant disaffirm his contract of 
 sale on arriving at fiill age, and sue the vendee for use and occu- 
 pation, the latter may recoup for valuable improvements erected 
 on the land, and this certainly would seem to be a very sensible 
 rule. ( Weaver v. Jones, 24 Ala. H. 421.) 
 
 § 33. In a late case in the superior court of the city of New 
 York it was held that the deed of an infant is not, as a matter of 
 course, superseded and annulled by the mere execution, after he 
 attains his age, of another conveyance, even to a purchaser for 
 value ; and the learned judge who wrote the opinion stated that 
 it had been determined, by authority, " that a deed of bargain and 
 sale made by an infant is not avoided by his execution and delivery 
 to a third person of a similar conveyance after he has attained his 
 age ; but that, to enable him to pass the title by a second convey- 
 ance, his previous actual entry upon the lands is an indispensable 
 requisite, and that this rule is applicable in all cases except where 
 the infant has retained possession of the lands, ol' at the time 
 of the execution of the second deed, they are wholly vacant." 
 {Dominick v. Michael, 4 Samdf. R. 421.) And in a later case, in 
 the supreme court of the State of New York, it was held, at 
 special term, that the conveyance of an infant can be avoided by 
 him at any time within twenty years after he comes of age ;■ but 
 that he can avoid it only by entry upon the land, or executing a 
 conveyance of it to a third person, or by demanding possession or 
 giving notice of his intention not to be bound by the conveyance ; 
 and that he cannot maintain an action brought before he has so 
 avoided it, and the act of avoidance must be stated in the complaint. 
 ( Voorhees v. Voorhees, 24 JBa^l>. R. 150.) This is cer,tainly a very 
 proper rule,, for it is due to a party in possession of lands under 
 10 
 
74 i-4W OF INFANCY. 
 
 the conveyance of an infant, that lie should not be ptit to the 
 expense of an action of ejectment before he has notice, at least, 
 that the' grantor designs to disaffirm his conveyance. It was 
 held, in a still later case in the same court, at general term, that, 
 where an infant had executed a mortgage upon his lands, and after 
 he had attained full age, executed a deed for the same lands to a 
 third person, without referring to the mortgage, that the execution 
 of the deed did not amount to a repudiation of the mortgage; 
 and further, that when the contrary is not expressed, the intent 
 of the deed will be deemed to be that the grantor shall take 
 subject to any prior mortgage. {Palmer v. Miller, 25 Barb. R. 
 399.) 
 
 § 34. In the supreme judicial court of Massachusetts, it was 
 held, that an assignment by an infant of a note not negotiable, may 
 be avoided by him, by giving notice to the assignee that he consid- 
 ers the bargain void, and offering to return the consideration 
 received. ( Willis v. TwamUy, 13 Mass. E. 204.) 
 
 In the State of South Carolina, it has been judicially deter 
 mined, that an infant, on arriving at full age, may in various ways 
 disavow his intention to carry into effect a contract made during 
 his minority ; that he may do so by entering on lands which he has 
 sold ; or by reconveying them to another ; or by leaving the service 
 of one to whom he was bound, and entering that of another. 
 {McOill T.Woodward, Const. JR. 468.) In the State of Alabama 
 it has been decided that if a minor sells the same property twice, 
 and after coming of age ratify the second sale, this is a disaffirm- 
 ance of the first sale and precludes him fi-om ratifying that sale. 
 {Derrick v. Kennedy, 4 Porter's R. 41. 
 
 In another case in the State of Massachusetts, it was held that 
 when an infant makes a conveyance of land by deed, the title will 
 remain good to the grantee, until the grantor shall lawfully disaf- 
 firm the deed ; wliich he can do only by entry ; but, having entered, 
 that his subsequent deed, accompanied by proof of facts tending to 
 avoid the first, will convey the title to another. { Woreester v. 
 Eaton, 13 Mass. R. 371, 375.) 
 
 In the supreme court of the State of Illinois, it was held that an 
 infant's contract to sell land cannot be enforced, if the infant refuse 
 to sanction the transaction when of age. There the mere refusal 
 to recognize the contract as of binding force was a disaffirmance. 
 {Walker v. Ellis 12 III. R. 470.) 
 
EFFECT OF DISAFFIRMANCE. 75 
 
 In the State of Virginia it lias been held that an infant's bond 
 for the conveyance of his land, is avoided by a sale of the same 
 land to a third person after becoming of age. {Mustard v. Wohl- 
 ford, 15 Oratt. R. 324.) 
 
 From the authorities cited, it will not be difficult to determine 
 the manner in which any voidable act of an infant may be disaf- 
 firmed and effectually avoided. 
 
 § 35. The consequences or effects of the disaffirmance of the acts 
 of infants are different, according as the contract is executory on 
 both sides, or executed on one side, and executory on the other ; 
 or executed on both sides. When the contract is executory 
 on both sides, and it is disaffirmed by the infant, the disaf- 
 firmance releases the adult from his part of the obligation. This 
 places both parties in statu quo — in the exact condition they 
 occupied before the contract was entered into. There is never 
 any difficulty in such a case; but when the contract has 
 been performed on one side, and remains executory on the 
 other, the law is not so simple, and it is not so easy always to 
 determine the status of the parties, on the disaffirmance of the 
 contract by the infant. 
 
 If the contract is executory on the part of the adult, on dis- 
 affirmance by the infant, the adult will be discharged from the 
 performance of the contract on his part. However, if the infant in 
 such a case has advanced anything to the adult on the contract, he 
 may recover it. {Corpe v. Overton, 25 JEng. C. L. R. 252. Millard 
 V. -Hewlett, 19 Wend. R. 301.) If the contract be for the purchase 
 of property by the infant, and he perform labor in part payment of 
 the price, and then disaffirm the contract, without having received 
 anything under it, he may recover for work on a quamAwm Tneruit. 
 {Medlury v. Watson, 7 HilVs R. 110.) The rule would be different 
 if the infant had received any benefit &om his contract, interme- 
 diate its date and his disaffirmance ; then he cannot recover back 
 the consideration paid. (2 JCenfs Com. 240. Kvrten v. Elliott, 
 2 Bulstrode's R. 69, ' Ha/rney v. Owen. 4 Blackf. \Ind?^ R. 240. 
 Yide also Aldrich v. Abrahamis, Lalor's R. 423.) 
 
 If an infant fail to perform his contract he cannot recover any- ' 
 thing under the contract, though if he have paid anything, or 
 performed service under it, he can recover . the amount paid, or 
 the actual value of the labor performed, in the quantum, meruit. 
 {Home Y.Lmcoln, 25 Vt. R. 206.) 
 
76 LAW OF INFARCT. 
 
 If an mtant buy a horse and pay a part down and give a mort- 
 gage on the horse to recover the balance of the purchase-money, he 
 cannot repudiate the mortgage and keep the horse. {Heath v. Wesi, 
 . 8 I^oster's [iV. M.] B. 101.) 
 
 It seems that a contract beneficial to the infant and fully per- 
 formed by both parties, cannot be disaffirmed by the infant and 
 enable him to recover for what he has done under it. Thus, an 
 infant, in consideration of an outfit to enable him to go to Califor- 
 nia, agreed, with the assent of his father, to give the party furnishing 
 the outfit one-third of all the avails of his labor during his absence, 
 which he afterward sent accordingly. The jury having found thai 
 the agreement was fairly made, and for a reasonable consideration, 
 and beneficial to the infant, it was held that he could not rescind 
 the agreement and recover back the amount so sent, deducting 
 the amount of the outfit and any other money expended for bim 
 by the other party in pursuance of the agreement. {Breed v. 
 Jvdd, 1 OroAJ's \Mass.'\ R. 455.) 
 
 '■>! % 36. When an infant has purchased property and has it in his 
 fipossession after coming of age, and then would avoid the sale, a 
 I different rule prevails than when the infant has wasted or squan- 
 ! dered the property diiring his infancy. In the former case the 
 I infant .cannot disaffirm the sale and recover the consideration paid, 
 \ without restoring to the other party the property purchased ; and 
 / in one case in the supreme court of the State of If ew Tork, it was 
 held, that if the infant has, by misuse, injured the property so 
 purchased, so as to essentially lessen its value, the infant cannot 
 recover the consideration paid, at least not without making com- 
 pensation for the damage. {Ba/rtholomew v. Finnemore, 17 Ba/rb. 
 a. 428.) The rule was laid down in this latter case that, " if an 
 infant has executed a contract on his part, by the payment of 
 money, or delivery of property, he cannot afterward disaffirm 
 it, and recover back the money, or claim a return of the property, 
 without restoring to the other party the consideration received 
 from him." This doctrine was approved by the superior court of 
 the city of New Tork, in a later case involving the same question, 
 where the rule was stated : " The terms on which a rescission will 
 be allowed, are a restoration of the property to the defendant, and 
 the payment of such a sum as, with the payments made on account 
 of the purchase, equals the deterioration of the property in value, 
 caused by the plaintiff's use of it." {Gray v. Lissmgton, 2 Bam. 
 
EFFECT OF DISAFFIRMANCE. 77 
 
 H. 257.) And in another case, in the late court of chancery of the 
 State of New York, where it appeared that the infant had pur- 
 chased property and executed a mortgage upon it, to secure the 
 purchase-money, and it was held that, after the infant " became of 
 full age, he was at liberty to affirm or disaffirm the mortgage. If 
 he affirmed it, he must pay the amount or deliver the goods, 
 according to its tenor. If he disaffirmed the mortgage, he must 
 restore the goods, or account for their value. He cannot affirm 
 the sale and keep the property, and at the same time repudiate the 
 mortgage." {Otimmh v. Moak, 3 8am,d. Ch. B. 431.) And in 
 another case, in the same court, the chancellor laid down the rule 
 that, "an infant cannot retain property purchased by him, and 
 at the same time repudiate the contract of purchase under which 
 he received the property. And when the infant, after he becomes 
 of age, repudiates the sale, the title to the property remains in 
 the vendor, as between such vendor and the infant." {Kitchen v. 
 JLee, 11 Paiges R. 107.) The same doctrine has been enunciated 
 in several cases, both in this country and in England, and the rule 
 may therefore be regarded as settled that, if the infant has the 
 property purchased, or consideration received, and it is capable of 
 specific return, he must restore it to the adverse party, if he dis- 
 affirms the sale. {Yida Badger v. Phmmsy, 15 Mass. ^.'"359. 
 Roof V. Stafford, 7 Cow. B. 179. Farr v. &umnem, 12 Yt. B. 28. 
 Taft r. Pike, 14 *5. .405.) 
 
 Chancellor Kent lays down the rule on the subject as follows : 
 ,"If an infant pays money on his contract, and enjoys the benefit 
 of it, and then avoids it when he comes of ago, he cannot recover 
 back the consideration paid. On the other hand, if he avoids an 
 executed contract when he comes of age, on the 'ground of infancy, 
 he must restore the consideration which he had received. The 
 privilege of infancy is to be used as a shield, and not as a sword." 
 (2 Senfs Com. 240. Yide also Strom, v. Wright, 7 Geo. B. 568. 
 Lock V. Smith, 41 N. H. B. 346. Baily v. Barnberger, 11 B. 
 Mon. B. 113. Weed v. Beele, 21 Yt. B. 495. Womach v. Womach, 
 9, Texas B. 397.) 
 
 § 37. If the infant has parted with the consideration received, or 
 expended the money lent during infancy, it would seem, j[rom 
 authority, that if, on coming of age, he repudiate the contract the 
 adult would be remediless. It is, laid down in American Leading 
 Cases by Hare and "Wallace as follows : " But if he (the infant) 
 
78 I'^W OF INFANGT. 
 
 has, during infancy, wasted, sold or otherwise ceased to possess the 
 property, these acts done in infancy cannot be a conversion, because 
 he then held the goods under an executory transfer of property, 
 which authorized him to use and dispose of them as owner, and a 
 refusal after age to deliver on demand, when he has not the goods, 
 is not a conversion, and trover, therefore, will not lie ; and this just 
 and sound distinction is taken in the very clear opinion in Fitts v. 
 Hall, 9 N'ew Hampshi/re, 441, 446 ; and recogni2;ed in EoUms v. 
 Eaton, 10 il. 662, 565, and Boocly v. McKmrney, 23 Maine B. 617, 
 526, 526 ; nor can detinue be maintained, for it lies not where the 
 goods, though once in possession, have been parted with in a 
 manner authorized by law. In such case, therefore, he may avoid 
 the contract without being made liable for the consideration in an 
 action sounding in tort." (1 Am. Leading Cases, 115.) To repeat, 
 then, the rule would seem to be that, if the contract is executory on 
 both sides, the disaffirmance of the infant releases the adult from 
 his obhgation, and thus both parties are placed in statu qvx). 
 
 If the contract has been executed in whole or in part by the 
 infant, but is wholly executory on the part of the adult, the infant, 
 on coming of age, may repudiate the transaction and recover the 
 consideration paid. But if the contract has been executed by the 
 adult, and the infant has the property or consideration received at 
 the time he attains full age, and he then repudiate the transaction, 
 he must return such property or consideration, or its equivalent, to 
 the adult party. If, however, the infant has wasted or squandered 
 the property or consideration received during infancy, and on 
 coming of age repudiates the transaction, the adult party is reme- 
 diless. 
 
 § 38. If the contract has been fuUy executed on both sides, and 
 the infant disaffirm the contract and reclaim what he has paid, he 
 must restore the consideration received. This doctrine is well 
 settled by express adjudications and implied in other cases where 
 the question was not directly in point. ( Vide Bigelow v. Kvrmey, 3 
 F/!. ^. 353, 358. PriGeY.Furman,lWiU.['Vi.']B. 268. WilUam 
 V. JVorris, 2 lAtteWs B. 157, 158. Hill v. Anderson, 5 Sme da 
 Ma/r. B. 216. Oraoe v. Male, 2 Humphrey's B. 27. Snvith v. 
 Evans, 5 *5. 70. Badger v. Phvnney, 15 Mass. B. 359. Edgerton 
 V. Wolf, 6 Gray's [Mass.] B. 453. 
 
 If the infant commence an action on coming of age, to set aside 
 a conveyance of real estate executed during infancy, he must oifer 
 
EFFECT OF DISAFFIRMANCE. 79 
 
 to restore the purchase-money if he has received it. {Silleyer v. 
 Bennett, 3 Edw. Ch. B. 222.) " The only reason why the rescission 
 of a contract in any case gives a right to recover what has passed by 
 the contract is, that the consideration of such transfer has totally 
 failed ; and, unless the party is restored to the situation which he 
 was in before, the consideration has not wholly failed as to him ; in 
 other words, there can be no avoidance by parol so as to give a 
 right to recover back property once lawfully transferred and vested, 
 so long as any part of the consideration is withheld." (1 Am. 
 Lead. Cos. 116.) For the same principle, reference may be made 
 to the following cases, which are cited in the volume above referred 
 to : {Dulty v. BrownfieTd, 1 Barr's R. 49Y. Willis v. Twamhly, 
 13 Mass. R. 204r, 206. Mghtingale v. WitMngton, 15 ii. 272, 274 
 Rrice v. Freeman, 1 Williams^ [ Vt.'] R. 268.) 
 
 § 39. It has been held by the supreme court of the State of 
 New York, however, that in an action by an infant to recover for 
 work and labor, it is neither a defense nor a ground for reducing 
 the amount of the recovery, that the work was done under a con- 
 tract by the infant to labor for the defendant for a fixed period of 
 time, which he violated by leaving the defendant's employ without 
 cause before the time had expired. ( Wkiimao'sh v. JETall, S Denio's 
 R. 376.) On the contrary, it was adjudicated in one case in the 
 supreme judicial court of Massachusetts, where it appeared that 
 the plaintifiF, an infant, had made a special agreement to labor^for 
 the defendant a certain time for certain wages, and, before the time 
 expired, left his service' voluntarily without cause, that the infant 
 might recover on a qv,am,i/wm Ttieruit for the services performed, 
 and if his employer was injured by the sudden termination of the 
 contract without notice, a deduction should be made on that 
 account. {Moses v. Stevens, 2 Pick. R. 332.) The learned judge, 
 in delivering the opinion of the court, said : " We think the special 
 contract being avoided, an indebitatus assumpsit upon a quantum 
 meruit lies, as it would if no contract had been made ; and no 
 injustice will be done, because the jury will give ho more than, 
 under all circumstances, the services were worth, making any 
 allowance for any disappointment amounting to an injury which 
 the defendant in such case would sustain by the avoiding of the 
 contract." In regard to this doctrine, the learned judge who deliv- 
 ered the opinion in the case of Whitma/rsh v. Hall, swpva, says : 
 " "With great respect, I am unable to yield my assent to the sound 
 
80 LAW OF INFANCY. 
 
 ness of the qualification annexed to tlie proposition. I think that 
 the infant plaintiff in such action is entitled, by well settled pria- 
 ciples of law, to recover such sum for his services as he would be 
 entitled to if there had been no express contract made. A recovery 
 is allowed upon the assumption that there is no express contract 
 at all." 
 
 This latter is undoubtedly the true rule, for if it were otherwise 
 there wovild be no more risk in dealing with an infant than with 
 an adult, and the infant would be deprived of the protection which 
 the law gives to shield, him from the imposition to which he is 
 exposed. 
 
 CHAPTER VI. 
 
 OF THE CONFrEtMAHOir OF THE VOmABLE ACTS OF AN INFANT — HOW 
 THE SAME AUE EATIFIED — ^WHAT IS A SUFFICIENT EATIFICATION. 
 
 § 40. What facts and circumstances will give binding force to 
 the voidable acts and contracts of an infant depends very much 
 upon the nature of the act to be ratified or confirmed. Words and 
 acts which operate as a ratification of an executed contract may 
 fall very far short of a confirmation of one that is wholly executory 
 on the part of the infant. 
 
 Bingham lays down the rule that when the act of an infant is 
 apparently for his advantage, a very slight admission, after he 
 comes of age, will inure as a confirmation of such act; and the 
 reason given is that the privileges attached to infancy, being 
 intended as a general protection or shield, shall not operate as a 
 weapon enabling individuals capriciously to attack the interest of 
 others, or procure to themselves unfair advantages. {Bmg. on Inf. 
 64.) This rule will answer in all cases of purchases of infants, and 
 their executed contracts, for in those cases any explicit acknowledg- 
 ment of liability or continuing in possession of the property 
 purchased after attaining majority, using it as his own, selling or 
 mortgaging it, or exercising any unequivocal act of ownership over 
 it, and giving no notice to the other party of an intention to disaf- 
 fiiyn the contract or purchase, will be a binding ratification of the 
 .purchase or contract. But in order to ratify an executory contract 
 the better authority is that there must be not only an acknowledg- 
 
BOW VOIDABLE ACTS ARE AFFIRMED. 81 
 
 ment of liability, but generally an express promise to perform it, 
 made Toluntarily and understandingly after the infant has become 
 of full age. 
 
 In one case, however, in the English courts, two of the judges 
 took a distinction between the raUfication of a contract and a mere 
 promise, holding that " a ratification means such a ratification as 
 would make a person liable as principal for an act done by a third 
 person in his name ;" and Parke, B., said : " I take the meaning 
 of ratification to be different from a promise. It is an admission 
 that he is liable and bound to pay that debt on a contract which he 
 made when an infant." {Ma/wson v. Blome, 26 Eng. L. & Eq. 
 B. 560, 561.) 
 
 The authorities, and especially the later authorities, make a 
 decided distinction between the acts and words necessary to 
 confirm an executory contract an^ those necessary to ratify an 
 executed contract or sale. 
 
 § 41. In regard to the ratification of an executed contract or 
 purchase by an infant, it has been held in one case, when an infant 
 took the note of a third person in payment for work done, and 
 retained the same for eight months after he came of age, and then 
 offered to return it and demanded payment for his work, that the 
 retaining of the note for such a length of time was a ratification of 
 the contract made during infancy, especially when in the mean 
 time the maker of the note had become insolvent, the debt lost, 
 and the offer to retm'n the note made on the heel of that event. 
 {Ddamo v. Blake, 11 Wend. It. 85.) The infant being the actor, 
 instead of being on the defensive, the court held that he was bound 
 to show a disaffirmance of the contract by returning the note before 
 he could call upon the defendant for payment for the work done, 
 in ratification of which the note was received during infancy. 
 In another case an infant submitted aclaim to arbitration, and on 
 an award being made in his favor and paid to his guardian, he 
 received the money from his guardian after he attained his full 
 age, the court held the acts of the infant affirmed the. submission 
 and barred his claim. {Jones v. The Phoemix £<mh, 8 If. Y. 
 B. 228.) 
 
 Story lays down the rule as extracted from the authorities, that, 
 
 whenever the infant continues, after coming of full age, to ocoiipy 
 
 a position which is only explicable upon the supposition that he 
 
 intends to stand by his contract, it will be considered as a ratifica- 
 
 11 
 
82 LAW OX' INFANCY. 
 
 tion of an executed contract. He is, however, allowed a reasonable 
 time after he comes of age, locus penitentim, during which he 
 may disaffirm his contract, and during which a mere acquiescence, 
 without any unequivocal acts, establishing a clear intention to 
 coniirm his contract, will not operate as a confirmation. {Story on 
 Con. § 72, referring to Tucker v. Morelcmd, 10 Peters, B. 75, 76. 
 Jackson v. Carpenter, 11 Johns. B. 542. Eohnes v. Blogg, 2 Moore- s 
 B. 552.) 
 
 All of the authorities agree that in cases of purchases by infants 
 and their executed contracts, much less is required for their ratifi- 
 cation than in cases of their conveyances or their executory contracts, 
 and that, in all cases of the former, slight acts and circumstances 
 will be sufficient to operate as a confirmation of the transaction. 
 ( Vide Boo&y v. McKinney, 23 Maine B. 517. Boblins v. Eaton, 10 
 N. H. B. 561. Kline v. Beebe, 6 Conn. B. 494. Phillvps v. Green, 5 
 Monroe^ s {_Ey.] B. 344. Bigelow v. Kvrmey, 3 Vt. B. 353. Belten v. 
 Briggs, 4 Bess. [8. C] B. 465. Beason^. Boyd, 1 Dana's \_Ky.] R. 
 45. Alexander v. Heriot, 1 Ba/iley^s Eg. R. 223. Evbamks v. Peak, 
 2 Bailey's \_S. (7.] R. 469. Barndby v. Bamdby, 1 Pick. R. 221.) 
 
 § 42. When an infant makes a conditional purahase of personal 
 property, with the right to return it if he is not pleased with it, 
 should he retain it an unreasonable length of time after coming of 
 age, he would be considered as assenting to the purchase, and it 
 would thereby become absolute. Thus, an infant bought a chattel 
 subject to the right of retm-ning it if he did not like it. He kept 
 the property for at least two months after he was of age, and after 
 he had been requested by the vendor to return it if he did not like 
 it ; the court held it a confirmation of the purchase. {Aldrich v. 
 Chfvmes, 10 N. H. B. 194.) So where an infant purchased a horse, 
 and gave his note for the purchase-money, and kept the horse until 
 after he was of age, and' then sold him, this was regarded as a 
 ratification of the purchase, and the infant was held liable on his 
 note. {Christian v. Bennett, 4 McCord's [S. C] B. 241.) So if an 
 infant buy goods on credit, and has them in his possession and uses 
 them, and does not return them to the vendor within a reasonable 
 time after he comes of age, it has been held that he thereby rati- 
 fies the purchase, and becomes liable for the price of the- goods. 
 {Boyden v. Boyden, 9 Mete. B. 519.) So in another case, where 
 an infant purchased a yoke of oxen, for which he gave his nego- 
 tiable promissory note ; after he became of age, he disposed of the 
 
sow VOIDABLE ACTS CONFIBMBD. 83 
 
 oxen and received the avails ; this was held a ratification of 
 the purchase, and the infant was made liable to pay his note. 
 (Zawson v. Zovejoy, 8 Oreenl. M. 405.) 
 
 § 43. With respect to an infant's purchases of real estate, they 
 may be ratified by the same acts and words as those of personal 
 chattels, when the circumstances are similar in the two cases. In 
 all these cases, an actual and complete appropriation of the prop- 
 erty acquired during infancy, after the infant attains to adult age, 
 confirms the purchase. It has been repeatedly adjudicated by the 
 com-ts, both in this country and in England, that the purchase of 
 land by an infant vests the freehold in him until he disagrees to 
 it ; and in some cases it has been held that his continuing in pos- 
 session after full age, is an actual confirmation of the purchase. 
 (2 Vent. a. 203, and vide Co. Litl. 2 5.) But this doctrine should 
 probably be received with the qualification given by Story, referred 
 to in section 41. So it is said, that if an infant make an exchange of 
 lands, and continue in possession after age, he shall be bound by his 
 bargain. (2 Fewi. i?. 225. Co. Litt.^\ a}) So where an infant takes 
 a lease for years, renders rent which is in arrears for several years, 
 and after age continues the occupation of the land ; it has been held 
 that this makes the lease binding, and, by consequence, the lessor 
 is chargeable with all the arrears incurred during his minority; for 
 though at full age he might have departed from his bargain, and 
 thereby have avoided payment of tne arrears which the lessor 
 suffered to incur during his minority, yet his continuance in pos- 
 session after full age ratifies and afiinns the contract cib vrhitio, and 
 so gives remedy for the arrears of rent incurred from the time of 
 the contract made. {Bing. mi Inf. QQ, and cases cited. Vide also 
 20 Am. Jur. p. 273, note 4, andjp. 278.) 
 
 There are several American authorities holding the doctrine that 
 a purchase or hiring of land, or a reservation of rent, is actually 
 confirmed by retaining possession of the land an unreasonable 
 length of time, or receiving the rent after age, or by selling the 
 land after age to a stranger. {Boody v. MaKinney, 23 Me. B. 
 617, 524. Bigelow v. Eimney, 3 Vt. B. 353, 359. Bdbbms v. 
 Eaton, lOJSf. E. B. 562, 566.) ^ ^ 
 
 If an infant lease his property, and, on coming of age, mortgage 
 the same to the lessee, and in the mortgage deed refer to the lease, 
 this has been held a ratification of the lease. {Story v. Johnson, 2 
 You. (& Coll. B, 586.) So if an infant make a mortgage of his 
 
84 LAW OF INFANCr. 
 
 land, and, after full age, convey the same land subject to the 
 mortgage, the effect will be the same ; the second deed will be held 
 to confirm and make good the mortgage. {Boston Bank v. Clmm- 
 lerlain, 15 Mass. B. 220.) And where an infant purchased land, 
 and, upon the execution and delivery of the deed, gave a bond and 
 mortgage upon the premises for the purchase-money, and both the 
 deed and mortgage were duly acknowledged and recorded, and 
 one-half of the purchase-money was paid at the time of the pur- 
 chase, the infant went into immediate possession of the premises, 
 and continued in possession until after he was of age, and then sold 
 the premises to third persons ; this was held as a ratification of the 
 mortgage, and the mortgage was declared to be a legal charge upon 
 the land, and the infant liable on his bond for any deficiency after 
 a sale of the premises. The court held that the infant, on coming 
 of age, might have relinquished the property, and claimed a 
 repayment of the money paid by him to the grantor at the time of 
 the purchase. " But by continuing in possession after twenty-one, 
 and conveying the land with warranty, he af&rmed the contract and 
 made himself liable for the payment of the residue of the purchase- 
 money." {Lynde v. JRudd, 2 Paige's R. 191.) To the same import 
 are many other American cases, modified in some instances by the 
 fact that the mortgage was subsequent to the deed and a distinct 
 transaction. ( Vide JffvUbarcLv. Cwmmings, 1 Greenl. R. 11. Dami 
 V. Coomls, 6 il. 89. RoiUns v. Mton, 10 If. H. R. 562. Bigelow 
 V. Kinney, 3 Vt. R. 353. Richardson v. Boright, 9 ib. 368.) 
 
 § 44. The conveyances of an infant are not so easily ratified as 
 his purchases or exchanges. In these cases no bare recognition or 
 silent acquiescence will be regarded as a confirmation of the sale, 
 unless prolonged for the statutory limitation. Neither will slight 
 or vague declarations of the grantor, after he becomes of age, 
 amount to a ratification of the grant. This doctrine is now well 
 settled by the current of aiithorities upon the subject. A deed of 
 confirmation is not necessary, but there must be some positive act 
 or words of the minor, from which his assent of the deed executed 
 during his minority may be inferred. (2 Kenfs Com. 238, 7iote a. 
 Wheaton v. East, 5 Ycrger's [Temi.] R. 41.) In the English courts 
 the rule has been laid down in these cases that an act of as high a 
 solemnity as the original act is necessary to a confirmation. 
 
 Lord EUenborough is reported to have said : " We cannot surren- 
 der the interests of the infant into such hands as he may chance to 
 
BOW VOIDABLE ACTS CONFIRMED. 85 
 
 get. It appears to me that we should be doing so in this case (that 
 of a deed), unless we required the act after full age to be of as 
 great a solemnity as the original instrument." {BayUs v. Dineley, 
 3 Maule S Selw. E. 482.) 
 
 In. regard to this opinion of Lord Ellenlsorough, Mr. Justice 
 Story remarks : " Without undertaking to apply this doctrine to 
 its fullest extent, and admitting that acts in pais may amount to 
 a confirmation of a deed, still we are of the opinion that these acts 
 should be of such a solemn and unequivocal nature as to establish 
 a clear intention to confirm the deed, after a full knowledge that it 
 was voidable. A fortiori, mere acquiescence, uncoupled with 
 any acts demonstrative of an attempt to confirm it, would be 
 insufficient for the purpose." {Tuoher v. Moreland, 10 Peter's 
 B. 76, 76.) 
 
 In a case in the supreme court of the State of ITew York, it was 
 held that an acquiescence by the grantor in a conveyance made 
 during his infancy, for eleven years after he came of age, did not 
 amount to a confirmation of the conveyance; that some positive 
 act was necessary evincing his assent to the conveyance. {Jaclcson 
 J. Ga/rpenter, 11 Johns. B. 542, 543.) And in the supreme court 
 of the State of Pennsylvania it was held that to constitute a confirm- 
 ation of a conveyance or contract by an infant, after he arrives of age, 
 there must be some distinct act by which he receives a benefit from 
 the contract after he arrives at age, or does some act of express rati- 
 fication. {Austin V. Pattan, 11 Serg. <& BmoWs B. 311.) With 
 respect to these two latter cases, Justice Story says : " There is 
 much good sense in these decisions, and they are indispensable to 
 a just support of the rights of infants according to the common 
 law." {Tucker v. Mordand, supra. Vide also Ordinary v. Wherry, 
 1 Bai. [S. C] a. 28.) And in a late case in Pennsylvania it was 
 held that fourteen years' delay to repudiate a sale of real estate by 
 an infant after he attained his majority was not an affirmance. 
 Urbam v. Groines, 2 Ora/rWs B. 96.) 
 
 § 45. In a case in the late court of chancery of the State of New 
 York, it appeared that an infant conveyed land to another, and the 
 latter conveyed the same land still to another; and after the infant 
 had attained his majority he executed a release to the last grantee. 
 This was held and taken to be an affirmance of the first deed. {Eagle 
 Fi/re Company^. Lent, 1 Edw. Oh. B. 301. & C. 6 Padge's E. 635.) 
 In another case in the same court, it appeared that an infant bor- 
 
86 LAW OF INFANCY. 
 
 rowed money and executed a mortgage of land to secure the 
 payment, and died shortly after attaining fiiU age, leaving a will 
 by which he directed all of his just debts to be paid. It was held 
 that the will, under all the circumstances, confirmed the mortgage 
 deed. The vice-chancellor remarked, that the facts and circum- 
 stances under which the loan was obtained, would justify the court 
 in laying hold of any equitable construction which could properly 
 be given to the will, and to hold it to be a confirmation, instead of 
 an avoidance of the bond and mortgage. {Merchants^ Fvre Ins. 
 Co. V. Grant, 2 Edw. Oh. R. 644.) 
 
 In a case, however, in the supreme judicial court of Massachusetts, 
 a difierent doctrine is laid down; and it may well be doubted 
 whether a clause in a will simply directing the payment of all just 
 debts, can be regarded as a confirmation of a particular mortgage, 
 executed by the testator while an infant. {Smith v. Mayo, 9 Mass. 
 a. 62.) In the State of North Carolina, it has been held that a 
 verbal confirmation of a deed, after the infant arrives of age, is 
 sufficient. (1 RanjwarWs B. 143.) The same court however held, 
 in another case, upon a full consideration of the subject, that to 
 ratify an infant's bargain and sale, after full age, some act must he 
 done denoting that the estate created by the deed was subsisting, 
 as the receipt of the purchase-money, or the like. (2 KenCs Com. 
 239, Twte l, citing Eoyle v. Stowe, 2 Dev. da Bat. B. 320.) An 
 infant may confirm his deed, by a recital in another deed when of 
 full age,, provided there is in the recital an express design to confirm 
 the former deed. {Phillies v. Green, 5 Monroe's B. 344, 355.) 
 
 In the court of chancery of the State of New Jersey, it was held 
 that when an infant exchanged lands with another, and deeds of 
 conveyance were interchanged, and the infant sold the land received 
 in exchange, the sale was a ratification of the transaction. ( Wil- 
 Uams V. Mabee, 3 Halst. Ch. B. 500.) 
 
 §46. The promises of an infant for the future payment of 
 money, and all his executory contracts which are voidable, can be 
 ratified only by a new promise to pay, or such express acts as will 
 be equivalent to a new contract. The most that can be said of 
 the original contract made during infancy, is that it is a valid con- 
 sideration, and will afibrd aliment upon which to predicate a bind- 
 ing undertaking of the minor after he attains to full age. The 
 original contract not being binding on the infant, the new promise 
 must possess all the ingredients of a complete agreement. Any- 
 
BOW VOIDABLE ACTS CONFIRMED, 87 
 
 thing short of this will fail to make the infant liable on the demand. 
 So stringent is this doctrine, that a full acknowledgment or promise 
 to pay a part, or even actual payment of a part, will not render the 
 infant liable to pay the whole debt. This view is sustained by all 
 the most approved authorities of the present day. As no agree- 
 ment is complete tmtil the minds of the parties meet, it follows 
 that the new promise, to be binding on the infant, must be made 
 to the creditor in person, or to his agent. The new promise of the 
 infant must be voluntaiy, free, and with full knowledge, that othei*- 
 wise he would not be liable, and of course the promise must be 
 made before the commencement of the suit to recover the demand. 
 The promise to pay or perform by the infant after coming of 
 age, need not be made personally to the creditor or obligor ; but if 
 made to an agent of such creditor or obligor, it will be suflBcient, 
 and the promise will be binding. {Mayor v. McZure, 36 Miss. 
 B. 389.) But the ratification must be by some positive act or 
 promise. {Boody v. McKinney, 23 Maine E. 517.) 
 
 Story states the rule : " In order to ratify an executory agree- 
 ment made during infancy, there must be not only an acknowledg- 
 ment of liability, but an express promise, voluntarily and 
 deliberately made by the infant upon his arriving at the age of 
 maturity, and with the knowledge that he is not legally liable." 
 {Story on Con. § 69.) This doctrine is abundantly sustained by 
 authority. ( Vide Ooodsell v. Myers, 3 Wend. JR. 479. Bogers v. 
 Mwrd, 4 Day's B. 57. Wilcox v. Boaih, 12 Oorm. B. 550. Hale 
 V. Gerrish, Sif.M.B. 374. JBigelow v. Grarmis, 2 EilVs [iV. Z.] 
 E. 120. Millard v. Hewlett, 19 Wend. E . 301. Waikins v. Ste- 
 vens, 4 Ea/rh. B. 175. Hodges v. Hwit, 22 ih. 151. Gay v. 
 Eallou, 4 Wend. R. 405. Ford. v. Phillips, 1 Pick. E. 202. 
 Thompson v. Lay, 4 ib. 49. Hubha/rd v. Cummings, 1 Greenl. B. 
 11. Thrwpp V. Fielder, 2 Esp. B. 628. Ha/rmer v. EilUng, 5 ib. 
 102. WMim-ey v. Dutch, 14 Mass. B. 460. Smith v. Mayo, 9 ib. 62.^ 
 Jackson v. Carpenter, 11 Johns. E. 537. Deason v. Boyd, 1 Dana^s 
 B. 45. Tucker v. Morelwiid, 10 Peters^ B. 73. HoU v. Underhill, 
 10 -ZV^. H. B. 220. Merriam, v. Wilkins, 6 ib. 432. Thornton v. 
 llUngworth, 9 Eng. C. L. B. 256. Wing v. Libby, 16 Maine B. 55. 
 Curtin V. Patton, 11 Serg. S Bowie's E. 307. Erock v. Galby, 
 2 Atk. B. 34. Hirieley v. Marga/ritz, 3 Bom's B. 428.) 
 
 ^ 47. But it will be convenient to refer to some of the express 
 adjudications upon this branch of the subject. When the action 
 
88 LAW OF INFANCY. 
 
 was upon a promissory note in the supreme court of the State of 
 New York, the learned judge, in giving the opinion, said : " A 
 ratiiication of an infant's contract should be something more than 
 a mere admission to a stranger that such a contract existed ; there 
 should be a promise to a party in interest or his agent, or at least 
 an explicit admission of an existing liability from which a prom- 
 ise may be implied." {Ooodsell v. Myers, 3 Wend. B. 482.) In 
 another case in the same court, which was also an action upon a 
 promissory note, the learned judge said : " In the case of infancy 
 there must be a new promise or ratification of the contract after 
 the defendant has attained the age of twenty-one years ; and, as in 
 other cases of contract, the minds of the parties must meet. A 
 promise to a stranger will not answer. It must be to the plaintiff, 
 or, what is the same thing, to his attorney or agent." JSigelow v. 
 Ch'annis, 2 HilVs H. 120.) So also in a still later case in the same 
 court, which was also an action upon a promissory note, it was held 
 that, inasmuch as the infant's contract was not binding, the new 
 promise made by the infant after he became of full age must possess 
 all the ingredients of a complete agreement to enable the creditor 
 to recover. It was said by the learned judge, in giving the opinion 
 of the court, that the new promise of the infant did not impart to 
 the contract made during infancy any legal validity so as to enable 
 the creditor to enforce it ; " but the new promise creates a new 
 contract founded upon and deriving its aliment from the old 
 demand, upon which the creditor may sustain a suit against the 
 infant." {Hodges v. Himt, 22 JBari. B. 151. Vide also Taft v. 
 Sergeant, 18 *5. 320.) 
 
 § 48. In an action in the supreme judicial court of the State of 
 Massachusetts, which was upon a promissory note made by a minor, 
 it appeared that after the maker attained to the age of maturity 
 he made his last will, which was duly proven, in which he devised 
 all hi^ estate, both real and personal, to certain of his brothers and 
 sisters, adding this clause : " after my just debts shall le paid, 
 wJdch I direct first to he done." This was held not a confirmation 
 of the note ; and the learned judge, in giving the opinion of the 
 court, said: *^The action is attempted to be supported solely on 
 the ground that the will, which was made after the testator attained 
 to full age, contains a direction to pay his just debts ; and it may be 
 presumed, although it is not stated, that the note declared on was 
 given for a just debt. The only case analogous to this is in 
 
sow VOIDABLE ACTS CONFIRJUED. 89 
 
 chancery, where, it appearing by the will that the infent devised 
 his personal estate for the paynient of his debts, particularly those 
 he had set his hand to, it was decreed that a bond debt, contracted 
 while he was an infant, should be paid. But at common law it 
 has been settled, in a great variety of cases, that a direct promise 
 when of age is necessary to establish a contract made during 
 minority, and that a mere acknowledgment, as in cases under the 
 statute of limitations, wiU iiot have that effect ; and it has further 
 been decided that such promise must be made deliberately, and 
 with a Tcnowledge that the party is not licMe hy lam. Wp cannot 
 consider the expression in this will as amounting to such a promise." 
 {Smith V. Mayo, 9 Mass. B. 62.) 
 
 In a later case in the same court, in which the opinion was 
 delivered by the same learned judge as in the last case cited, it 
 appeared that an infant made his promissory note, and, when of 
 age, being applied to for payment, acknowledged that the money 
 was due, and promised that on his return to his home he would 
 endeavor to procure it and send it to the creditor. This was holden 
 to be a sufficient ratification of the original promise. The judge 
 said that " the terms of ratification need not be such as to import 
 a direct promise to pay. All that is necessary is that he expressly 
 agreed to ratify his contract, not by doubtful acts, such as pay- 
 ment of a part of the money due or the interest, but by words, 
 oral or in writing, which import a recognition and confirmation of 
 his promise." {WhitneyY.Dutch,14:MaBs.Ii.4:^^.) The disposition 
 of this case was undoubtedly correct, but the theory of the judge is 
 somewhat different from the position taken in the case of Hodges 
 V. Hunt, before referred to. In that case the judge held that the 
 action must be upon the new contract, and he took exception to the 
 language of the judge in another similar case, saying that the judge 
 " was not critically correct when he said that the note of the infant 
 in that case stood revived and ratified by the new promise." And in 
 a late case in the supreme judicial court of Massachusetts, Chief 
 Justice Shaw said : " It seems to be established in Massachusetts 
 that the note of an infant is voidable only, and may be regarded as 
 a good fouildation for a new promise when he comes of age." 
 {Biid V. Batchddor, 1 Metc^ B. 559.) 
 
 In another case in the same court, being an action upon a prom- 
 issory note of an infant, it appeared that when the sheriff went to 
 serve the writ, the defendant, then of age, said, " that he owed 
 12 
 
90 LAW OF INFANCY. 
 
 the plaintiff, but was unable to pay him ; he would endeavor, how- 
 ever, to get his brother to be bound with him," and this was held 
 insufficient to renew the promise. The judge said: "A direct 
 promise is necessary; a mere acknowledgment of the debt is 
 not sufficient. It must be voluntary ; not under the terror of an 
 arrest, and with a knowledge that the party was by law discharged. 
 Paying money on account of a bill is not sufficient. The promise 
 is not to be inferred, as in the cases under the statute of limita- 
 tions, but express, and it must be made before the commencement 
 of the action." {Ford v. PhilUps, 1 Pick. R. 202.) 
 
 And in still another case in'thcs same court, the doctrine was 
 expressly enunciated, that to sustain an action against a person of 
 full age, on a promise made by him when an infant, there must be 
 an express ratification; as by saying, "I ratify and confirm," or, 
 " I agree to pay the debt." {Thompson v. Lay, 4 Pich. li. 48.) It 
 was also declared in the last case, that the promise might be condi- 
 tional, and nevertheless binding ; but that if the evidence of rati- 
 fication is of a promise to pay " when the defendant shall be able," 
 the plaintiff must prove the defendant's ability ; though it need 
 not be proved that he could pay without inconvenience. In Ver- 
 mont, it has been held that an infant's contract to labor is ratified 
 by the infant's continuing to labor under it one month after his 
 majority. {Forsyth v. Hasti/ngs, 1 Will. [ Vt.'\ B. 646.) 
 
 § 49. The following points upon this subject have been settled 
 by express adjudication, in cases, the most of M'hicli are refeiTed to 
 in the i^otes and references by E. H. Bennett, Esq., accompany- 
 ing the text of Bingham's work on Infancy and Coverture. {Bing. 
 on Inf. 68, note 6.) The words, " I have not the money now, but 
 when I return from my voyage I will settle with you ; " and, " I 
 owe you, and wiU pay you when I return," have been held a suffi- 
 cient ratification. {Martin v. Mayo, 10 Mass. P. 137.) These 
 words have also been held a confirmation of an infant's agreement, 
 " I will pay it (the note) as soon as I can make it, but not this 
 year, I understand the holder is about to sue it, but she had better 
 not." {Bobo V. Hansen, 2 Bailey's \8. C], P. 114.) Of course, 
 this language must have been addressed to the holder of the note, 
 or her agent or attorney, or it would not have been binding. 
 
 "When a minor after coming of age wrote to the plaintiff, " I am 
 sorry to give you so much trouble in calling, but I am not prepared 
 for you, but will without neglect remit you in a short time : " this 
 
sow VOIDABLE ACTS CONFIRMED. 91 
 
 was held a sufficient ratification. {Hartley v. Wha/rton, 39 Eng. 
 C. L. R. 276.) So in another case in the English court, it is said, 
 that any written instrument signed by the infant, which in the case 
 of adults would have amounted to the adoption of the act of the 
 party acting as agent, will, in the case of an infant who has 
 attained his majority, amount to a ratification. {Harris v. Wall, 1 
 Wels., Hurl, di Gordon's R. 128.) A declaration of an intention to 
 pay a note, and authorizing an agent to take it up, has been held a 
 good ratification, although the agent had done nothing about it. 
 {Orvis V. Kimball, 3 N. H. E. 314.) 
 
 On the other hand, an admission by an infant, that he owed the 
 debt, and that the adult would get his pay, but at the same time 
 refusing to give his note, was considered no ratification of the 
 original promise. {Hale v. Gerrish, 8 JV. H M. 37i.) 
 
 So a letter to the holder of a bill of exchange accepted by an 
 infant, written after he becomes of age, "your brother tells me 
 you are very uneasy about the £500 bill drawn by Mr. Pattinger 
 on me. Please make yourself easy about it, as I will take care 
 that it is paid, and Sir Henry Pattinger comes to England in June," 
 was held by two judges against two, not to be a sufficient ratifica- 
 tion of the promise. {Mawson v. Blam,e, 26 Eng. L. & Eg. B. 
 660, 561.) 
 
 So, likewise, the language, " I consider your claim as worthy my 
 attention, but not my first attention," adding that he would soon 
 give it the attention due, was held insufficient. ( Wilcox v. Roaih, 
 12 Corm. JR. 650.) So also it was held by the same court, that a 
 submission to arbitration, whether the maker was Hable or not, on 
 his promissory note made during infancy, was no ratification of the 
 note. {Benham v. Bishop, 9 Conn. R. 330.) So in England it has 
 been held that when an infant subscribed to the capital stock of an 
 incorporated company, the retention of the shares after majority 
 would render him liable for calls. {Cork v. Oazenove, 59 Eng. G. 
 L. R. 934.) 
 
 And in this country, when an infant maker of a promissory note, 
 after he became of age, said to the payee that he had a good crop 
 of com, and if he would take com on the note, he would deliver it 
 to him as soon as it was threshed, the price per»bushel being fixed, 
 but nothing said as to the quantity, it was held that this was a suf- 
 ficient affirmance of the note. {Stokes v, Brovm, 4 Chamd, [ Wis.] 
 R. 39.) 
 
92 Ii^W OP INFANCY. 
 
 In another case, an infant after full age admitted the justice 
 of the note given during his infancy, and gave the payee a watch 
 in part payment, this was held a confirmation of the note. {Little 
 V. Duncan, 9 Eich. {_8. C] Law B. 55.) 
 
 And it has been held by the New York conrt of appeals, that 
 when a minor submitted a claim to arbitration, and on an award 
 being made in his favor and paid to his guardian, he received 
 the money after he attained his full age, the receiving of the 
 money was an affirmance of the submission and barred the claim. 
 {Jones V. Fhoenix Bamlc, 8 N. Y. B. 228.) 
 
 A promise by a minor to pay money, borrowed on joint account 
 with another person may be ratified by the minor after coming of 
 age, like other voidable promises. {Kenedy v. Doyle, 10 Allen's 
 B. 161.) 
 
 § 50. Bingham states, upon authority, that a promise after age 
 will ratify a bare security for a third person, given by the infant. 
 {Bing. on Inf. 69.) In such case, however, the English courts 
 have held that if the original transaction was not perfectly fair, 
 and the party was entrapped into a ratification, immediately on 
 coming of age, equity will give relief. {Brock v. Galhy, 2 AtTi. 
 B. 34.) 
 
 It has been held in the American courts that, in these cases of 
 infant's security for third persons, there must be a distinct act 
 of confirmation. {Gwrim, v. Patten, 11 Serg. <& BoAoleh B. 309. 
 Hinely v. Margaritz, Z Barr's B. 428.) And it has been held in 
 Connecticut, Virginia and Tennessee, that such contracts of infants 
 are absolutely void, and therefore not susceptible of ratification. 
 {Maples V. Wightman, 4 Conn. B. 376. Allen v. Minor, 2 CaWs 
 [Fffl.] B. 70. Wheaton v. East, 5 Yerger's [Tenn.], B. 41, 61.) 
 The better opinion, however, as extracted from later authorities, is, 
 that these contracts of infants are not absolutely void, but may 
 be ratified after the infant attains to the age of majority. (1 Par- 
 sons on Contracts, 244.) 
 
 § 51. It has been held in the English courts, where an infant 
 desired that lands subject to a trust for payment of younger child- 
 ren's portions, might not be sold, and ofiered, by his answer in^ 
 chancery, to settle other lands for raising the portions; that he 
 should be bound by the offer made by him in his answer, if the 
 other side were thereby delayed, and if the infant did not, imme- 
 diately after his coming of age, apply to the court in order to 
 
sow VOIDABLE ACTS CONFIRMED. 93 
 
 retract his offer, and amend his answer. (^Oeoil v. Salsbury, 2 
 YerrnofUs Gh. B. 224.) This was a very reasonable rule in a 
 given case, and in a similar case in this country the court would 
 probably make a similar ruling. Certainly, the authority would be 
 recognized here, as the adjudication of a very distinguished court. 
 The acts of an infant which are only voidable sub modo, as fines, 
 common recoveries and recognizances, to which reference is made 
 in a previous chapter, will be considered as confirmed, if not 
 avoided, in the time and manner prescribed by law. {Vide 
 ante, % 25.) 
 
 In one case in England it was held that if an infant deliver a 
 deed within age, and after age deliver it again, this second delivery 
 is void, for the reason that the deed, taking.effect as to some intents 
 from the first delivery, cannot be allowed to take any from the 
 second, and so have a double operation. {Butler c& Baker's case, 
 3 Coke's B. 35 5.) It is suggested, however, that the reason assigned 
 for the position of the court in this case is little less than a fiction, 
 and probably the second delivery of the deed, if made deliberately 
 and understandingly, would now be regarded as a confirmation of 
 the conveyance. 
 
 In a recent case in the supreme court of the State of New York, 
 the execution and delivery of a mortgage of real estate by an infant, 
 and an acknowledgment and redelivery of the same after the infant 
 became of age, was held a ratification of the instrument, and that 
 the subsequent acknowledgment related back in its effect to the 
 original delivery, and affected all intermediate sales, except for a 
 new and valuable consideration. {Pahner v. Miller, 25 Barb. 
 B. 399.) 
 
 § 52. In one case in the supreme court of the State of Connecticut, 
 the subject of the confirmation of the acts of infants was very 
 fully discussed and considered, and it was held that there were 
 three modes of affirming the voidable contracts of infants when 
 they arrived at full age : first, by express ratification ; second, by 
 acts which reasonably imply an affirmance ; third, by the omission 
 to disaffirm within a reasonable time. (2 Kent's Com. 239, note 
 a. KUne v. Beebe, 6 Conn. B. 494.) 
 
 And in the supreme court of the State of Maine the question of 
 the affirmance of contracts by infants has been thoroughly exam- 
 ined, and Shepley, J., in delivering the opinion of the court, 
 classified the subject-matter of the infant's contract as follows: 
 
94: LAW OF INFANCY. 
 
 " 1. When lie has made a conveyance of real estate during his 
 infancy, and would affirm or disaffirm after he becomes of age. In 
 such case the mere acquiescence for years to disaffirm it affiards no 
 proof of ratification. There must be some positive and clear act 
 performed for that purpose. The reason is that by his silent 
 acquiescence he occasions no injury to other persons, and secures 
 no benefits or new rights to himself. There is nothing to urge 
 him as a duty toward others to act speedily. Language, appro- 
 priate in other cases, requiring him to act within a reasonable time, 
 would become inappropriate here. He may, therefore, after years 
 of acquiescence, by an entry or by a conveyance of the estate to 
 another person, disaffirm and avoid the conveyance made during 
 his infancy. 
 
 " 2. When, during infancy, he has purchased real estate or lias 
 taken a lease of it subject to the payment of a rent, or has granted 
 a lease of it upon payment of rent. In such cases it is obvious, 
 when he becomes of age, that he is under a necessity, or that 
 common justice imposes it upon him as a duty, to make his election 
 within a reasonable time. He cannot enjoy the estate after he 
 becomes of age for years and then disaffirm the purchase and refuse 
 to pay for it, or claim the consideration paid, or thus enjoy the 
 leased estate and then avoid payment of the stipulated rent, or 
 receive rent on the lease granted and then disaffirm the lease. 
 When he will receive a benefit by silent acquiescence he must make 
 his election within a reasonable time after he arrives at full age, or 
 the benefit so received will be satisfactory proof of a ratification. 
 In the case of Benham v. Bishop, 9 Conn. It. 330, it appeared 
 that the defendant and his mother and sisters were in possession 
 and owned land in common, and that defendant, while an infant, 
 made his note to another sister for a conveyance to him of her 
 undivided share of the same estate, and that they continued to 
 occupy the land in the' same manner several years after he became 
 of age ; and it was decided not to amount to a ratification of the 
 note. This case can only be regarded as correctly decided by 
 considering the defendant as having occupied only by virtue of his 
 own previous title as a tenant in common. 
 
 " 3. When he has, during infancy, sold and delivered personal 
 property. When the contract was executed by his receiving 
 payment, it is obvious that he can receive no benefit by acqui- 
 escence ; and it alone does not confirm the contract. When the 
 
BOW VOIDABLE ACTS CONFIRMED. 95 
 
 contract remainB unexecuted, and he holds a bill or note taken in 
 payment for the property, if he should collect or receive the money 
 due upon it, or any part of it, that would affirm the contract. 
 Should he disaffirm the contract and reclaim the property, the bill 
 or note would, become valid. He cannot disaffirm it until after he 
 becomes of age ; and if he then does it, there are cases which assert, 
 when the contract has become executed, that he must restore the 
 consideration received. 
 
 " 4. When he has purchased and received personal property 
 during infancy. "When the contract has been executed by a 
 payment of the price, if he would disaffirm it he should restore the 
 property received. When the contract remains unexecuted, the 
 purchase having been made upon credit, he may avoid the contract 
 by plea during infancy or after he becomes of age, before he has 
 affirmed it. It has been asserted in such case that he should be 
 held to refund the consideration received for the contract avoided. 
 {Reeves Dom. Mel. 243.) He admits, however, that the current of 
 English authorities is otherwise. If he had received property 
 during infancy, and had spent, consumed, wastied or destroyed it, 
 to require him to restore it, or the value of it, upon avoiding the 
 contract, would be to deprive him of the very protection which it 
 is the policy of the law to afford him. T here might be more 
 ground to contend for the right to reclaim specific articles remain- 
 ing in his hands unchanged at the time of the avoidance of the 
 contract. When he continues to retain the specific property, or any 
 part of it, after he becomes of full age, it becomes his duty within a 
 reasonable time to make his election. If such were not the rule he 
 might continue to use for years a valuable machine until nearly 
 worn out, and thus derive benefit from it, and yet avoid the contract 
 and refase to pay for it. And when after a reasonable time he 
 continues to enjoy the use of the property and then sells it, or any 
 part of it, and receives the money for it, he must be considered as 
 having elected to affirm the contract; and he cannot afterward 
 avoid payment of the consideration. This, as before shown, is the 
 well-settled rule in relation to real estate purchased or leased, and 
 the principles applied in those decisions appear to be equally appli- 
 cable here." {Boody v. McKmney, 23 Mame E. 517.) 
 
 Judge Shepley fortifies his opinion by authorities both English 
 and American, the most of which are refen-ed to in other places in 
 this chapter, and are therefore not repeated here. 
 
9Q LAW OF INFANCY. 
 
 ' It has been frequently decided that acts of confirmation by an 
 infant are required to be made with a knowledge that he is not liable 
 on the contract, and this doctrine seems to be recognized by all the 
 elementary writers upon the subject. ( Vide Hvrtekj v. Margariiz, 3 
 Barr's R. 428. Norris v. Yomce, 3 Rich. R. 164. Smith v. J&yo, 
 9 Mass. R. 64. Story on Con. % 69. 1 Parsons' Mercantile Lavj, 5.) 
 If it would not be regarded effi-ontery, however, in the face of such 
 a current of authority, it might be questioned why ignorance of the 
 law should avail an adMlt any more in this than in other cases. 
 Here it must be remembered that the act of affirmance occurs 
 after the infant has attained to adult age ; and the general rule is 
 well understood to be that no act can be avoided merely because it 
 was entered into through ignorance of the law. 
 
 § 53. In England an act has been passed, known as Lord Tenter- 
 den's act, declaring that no action shall be maintained whereby to 
 charge any person upon any promise, made after full age, to pay 
 any debt contracted during infancy, or upon any ratification, after 
 full age, of any promise or simple contract made during infancy, 
 unless such promise or ratification shall be in writing, to be signed 
 by the party to be charged thereby. (9 Geo. IV, ch. 14, § 5.) 
 
 They have a statute similar to the English statute in Maine, and 
 in some other States ; and when this is the fact the ratification in 
 every case must be by a written instrument signed by the infant 
 after he has attained his majority ; and any paper which in the 
 case of adults would amount to the adoption of the act of a party 
 acting as agent would seem to be sufficient. ( Vide EarUey v. 
 Wharton, 11 Adol. c& MUs's R. 934. Harris v. Wall, 1 Exch. B. 
 122. Mawson v. Mane, 10 ib. 206.) 
 
 § 54. According to authority, it would be difficult for an infant 
 to do anything to estop him from avoiding his voidable contracts, 
 on coming of age. Indeed it is held that the doctrine of estoppel 
 is inapplicable to infants. {Brown v. McCune, 5 Sand. [S. (7.] B. 
 228.) Where the defendant even fraudulently represented himself 
 as being of full age, it was held that he was not estopped from set- 
 ting up infancy as a defense to a contract entered into under such 
 fraudulent representation. {Merriam v. Cunningham, 11 Cush. B. 
 40. Bwr-ley v. Russell, 10 N. H. R. 184.) But an opposite doc- 
 trine has been held in Texas. {Kilgore v. Jordan, 11 Texas R. 341.) 
 But after he has become of age, he may take a course which will 
 estop him from denying that his acts have been confirmed. 
 
sow VOIDABLE ACTS CONFIRMED. 97 
 
 It has been held that if an infant stiiFere another to purchase his 
 property without informing such person of his ownership, he can- 
 not recover the property of the purchaser. (2 Kenffs Com. 253, 
 note 1, citing Hall v. Simmons, 2 Bich. Eg. R. 120. But vide 
 Norris v. Wait^ 2 Rich. Law JR. 148.) So, again, a testamentary 
 guardian by an infant devisee has no right to purchase the i-eal 
 estate of the testator at a sale under a surrogate's order ; but if 
 such a sale be made, and was beneficial to the ward, and he was 
 present, and, instead of repudiating it, suffered eighteen years to 
 elapse after he became of age without impeaching the conveyance, 
 during which time the title had passed into the hands of innocent 
 parties, he will be deemed to have waived the objection, and to 
 have affirmed the sale. {Bostwich v. Atkins, 3 iV^. Y. R. 53.) A 
 simple delay, however, of fourteen years to repudiate the convey- 
 ance of an infant, after coming of age, is not an affirmance. 
 ( Urba/n v. Grimes, 2 Grants Cases {Perm,.'] 96.) 
 
 But it has been held, in the English court of chancery, that 
 where the plaintiff acquiesced for three years |fter he attained his 
 majority, in the sale of his lands by his attorney while he was a 
 minor, it was too late to file a bill praying that the sale might be 
 declared void. {Salmon v. Cutis, 5 Eng. L. <& Eq^ R. 93.) And 
 further, that when it is sought to avoid a contract on the ground 
 of infancy, the plea must show that there was a disaffirmance, and 
 that this was within a reasonable time after the defendant's 
 majority. {DubUn, etc., Radlwa/y Com^am/ v. Black, 16 Eig. L. 
 cfe Eq. R. 556.) 
 
 Accepting the money arising from an irregular sale, by the 
 infant, of her land, and saying she is satisfied with the sale after 
 she becomes of age, will not estop her from denying the validity 
 of the sale. {Ackley v. Dygert, 33 Barb. R. 166. But vide 
 Morris v. Stewart, 14 Ind. R. 334.) 
 
 An infant of the years of discretion, standing by and seeing 
 his property mortgaged, saying nothing, cannot afterward claim 
 the property as his. {Irwin v. Merill, Dud. {Geo.] R. 72.) 
 
 It is understood that an infant may remain quiescent after he 
 has arrived to the age of maturity, in case of a conveyance of land, 
 and still avoid the sale at any time, before the, statute has barred 
 an entry. There may, however, be an acquiescence under such cir- 
 cumstances as to amount to an equitable estoppel upon the vendor. 
 For example, it has been held, where an infant sold land, and, after 
 13 
 
98 LAW OF INFANCY. 
 
 i 
 
 coming of age, saw the purchaser making large expenditures in 
 valuable improvements, and said nothing in disaffirmance for four 
 years, that " the circumstances were such as not to excuse this long 
 silence ; " and there being evidence that on several occasions the 
 vendor had said, after age, that he had sold the land and been paid 
 for it and was satisfied, and had authorized a proposition to be 
 made for the purchase of the land, it was held that the sale was 
 confirmed. (1 Am. Lead. Gas. 114, citing Wheaton v. Hast, 5 
 Terger's [Tenn] B. 41, 62.) 
 
 § 55. As to what acts, after attaining full age, will amount to a 
 ratification of the contract of an infant, has been ekborately dis- 
 cussed in a late case in the court of appeals of the State of New 
 York. All that seems, however, to have been settled by the case 
 is, that when an infant has purchased real estate, and has taken 
 and continued in possession after becoming of full age, and has exer- 
 cised acts of ownership over the same, he will be deemed to have 
 ratified the contract of purchase. And further, that an infant 
 cannot retain the benefits of his contract, and thus affirm it, after 
 becoming of age, and yet plead infancy to avoid the payment of 
 the purchase-money. {Henry v. Root., 33 N. Y. R. 526.) No new 
 principle is settled in this case, and it is only important because 
 of the high authority of the court that adjudicated it, and the 
 exhaustive discussion of the question by one of the learned judges. 
 In the course of the argument, Davies, J., who delivered the 
 leading opinion of the court, took the broad ground, that the con- 
 tracts of an infant, which are declared to be only suspended during 
 his minority, may be revived and ratified by him on arriving at 
 age, upon the same principles, and for the same reasons, and by 
 the same means, as a debt barred by the statute of limitations 
 may be revived and restored to its pristine vigor and efficacy; 
 and the opinion is advanced that the current and generally received 
 rule to the contrary originated mainly from the notion of the 
 English judges that it was their peculiar duty to protect infants 
 from their own acts of imprudence and folly; and that, their con- 
 tracts being wholly void, something must be done equivalent to a 
 new contract after coming of age, to make that legal and effective 
 which before had no force or existence. Now, a bare acknowledg- 
 ment is sufficient to take a case out of the statute of limitations, 
 for the reason that the debt continues from the time it was con 
 tracted. A new promise merely rebuts the presumption of pay- 
 
CONTRACTS FOB NUCHSSABIES. 99 
 
 ment of tlie debt created by the statute, and the plaintiff 
 ' recoTOrs not on the ground of any new right of action, but that 
 the statute does not apply to bar the old one. But in case of 
 infants, the well settled doctrine is, that their contracts are more 
 analogous to the debts of a bankrupt, which have been discharged 
 and canceled by the bankrupt or insolvent discharge, and that, 
 to make binding their contracts after they have attained tlieir 
 majority, acts must be done of an equal character or degree, as in 
 case of a bankrupt. In the case of an infant, it is held with 
 respect to his contract, that there never was any legal right capa- 
 ble of being enforced, and that the promise of the infant, after he 
 becomes of age, to take upon himself a new Hability, proceeds only 
 upon a moral obligation existing before. Accordingly, it now 
 stands adjudged, that the contract of an infant can be ratified only 
 by an express promise, or what is equivalent to an express promise, 
 made after the infant arrives at full age. And, notwithstanding 
 the learned and elaborate argument in the case referred to, it does 
 not appear that the court interfered with this universally received 
 rule. The standards, therefore, which have been hereinbefore 
 stated and laid down, may be regarded as binding and safe, until 
 they shall be expressly overruled. • 
 
 CHAPTEE VII. 
 
 OF THE CONTRACTS OF mFAlTTS FOE NECESSAEIES — WHEN AND HOW AN 
 INFANT MAT BIND HIMSELF FOE NECESSAEIES — WHEN HE MAY BIND 
 OTHEES FOE NECESSAEIES — WHAT AEE AND WHAT AEE NOT NECES- 
 SAEIES HOW THE QUESTION OF NECESSAEIES IS TO BE TEIBD — THE 
 
 BUEDEN OF PEOOF. 
 
 § 56. It is clearly agreed by all the books and the authorities, 
 that the contract of an infant for necessaries is neither void nor 
 voidable. It is permitted, says Professor Parsons, for his own 
 sake, that he may make a valid contract for these things ; or other- 
 wise, whatever his need, he might not be able to obtain food, 
 shelter, or raiment. And the principles which govern this rule 
 show plainly that it is intended only for his benefit, and is regarded 
 and treated as an exception to a general rule. (1 JParsons on Con. 
 2i4:,2i5,3ded.) 
 
100 i-ATT OF INFANCY. 
 
 This question of necessaries as applied to infants involves several 
 interesting principles, and therefore demands a close and somewhat 
 extended examination. 
 
 § 57. Matthew Bacon lays it down that infants are absolutely 
 bound by their contracts for necessaries in benignity to them- 
 selves, " for if they were not allowed to bind themselves for neces- 
 saries, no person would trust them, in which case they would be in 
 worse circumstances than personsof full age." {Bac. Air. Inf. LI.) 
 
 Another writer says that the obligation of infants to pay for 
 necessaries is said to arise, not so much by virtue of any contract 
 to do so, as on the ground of an implied legal liability, based on 
 the necessity of their situation. This seems to be more in conso- 
 nance with the theory upon which the acts of infants are usually 
 treated. Precisely in the same manner as are idiots and lunatics, 
 who are absolutely incompetent to make any contracts, yet, in both 
 cases, it being necessary for the party to live, the law allows to any 
 one supplying them a reasonable compensation. The infant's 
 necessity, therefore, being the ground of his liability, it follows 
 that, when no such necessity exists, all responsibility fails. {Bing. 
 on Inf. 87, note 1.) It must appear in all cases that the things 
 furnished were actually necessary, of reasonable prices and suitable 
 to the infant's degree and estate, considerations which regularly 
 must be left to the jury. {Ive v. Chester, Cro. Jac. 560.) But if 
 the jury find that the things were necessaries and of reasonable 
 price, it will be presumed they had evidence of what they thus 
 find ; and they need not find particularly what the necessaries were 
 nor the price of each. Also, if the plaintiff declares for other 
 things as well as necessaries, or alleges too high a price for those 
 that are necessary, the jury may consider of those things that were 
 really necessaries and of their intrinsic value, proportioning the 
 damages accordingly. {Popham's H. 151. Palmer's R. 361. 1 
 Leonard's R. 114. Ooldsborough's E. 68. OodboWs R. 219.) Of 
 course, in these cases of necessaries, the infant may be sued and 
 charged in execution, and he is not permitted to plead his infancy 
 in defense, whether he is under or above full age at the time the 
 action is commenced. 
 
 § 58. The question of necessaries is governed by the real circum- 
 stances of the infant, and not by what his situation may appear to be. 
 An infant when at home under the care of his father, and sv^poried 
 ly M7n, cannot be made liable for necessaries. If he could be 
 
CONTRACTS FOR NECESSARIES. 
 
 made liable, the father would be deprived of the right of exer- 
 cising his discretion as to the manner and degree of his sxipport. 
 {Ba/inbridge v. Pickering^ 2 W. Black JR. 1325. Angell v. McLellan, 
 16 Mass. E. 31. Elwood v. Myers, 2 Eeads' [Tenn.] R. 33. Hull 
 V. Connoly, 3 MoCord's \S. C] L. R. 6.) 
 
 By the common law, parents are bound to maintain their 
 children during minority, and the same obligation is recognized by 
 the' civil law ;^ut if the authority of the parent is abjured, without 
 any necessity occasioned by the parent, all obligation to provide for 
 the infant is at an end, and the infant himself is chargeable for neces- ; 
 saries furnished for his support. /It is said that this doctrine is / 
 vindicated by an attention to the consequences which would follo\s^ 
 if a different principle were to obtain. Could a refractory or viciou? 
 son leave his father's house without being exposed to want, carrying 
 with him a credit on his father wherever he might wander, the motive 
 for subriiitting to authority might be materially impaired, and a great 
 diminution of parental influence might ensue. One of the greatest' . 
 restraints upon the bad passions and vicious propensities would be 
 removed, if young persons should feel that they could flee their^ 
 parent's presence vyithout suffering in any of the essentials of life.\ 
 \Angell v. MoLellam,, supra.) This doctrine is also enunciated or ' 
 plainly implied in a large number of cases, both English and Ameri- '■ 
 can. ( Vide Jones v. Odloin, 1 MoMullerCs {S. <7.] R. M. Smith t. 
 Young, 2 Dev. cfe Bat. [N. C] R. 26. Edwards v. Higgins, 2 
 McCord'a Oh. \_S. 6^.] R. 16. Guthrie v. Murphy, iWatts' [Pemi.] 
 R. 80. Cook V. Deaton, 14 Mig. C. L. R. 232. Story v. Perry, 19 ib, 
 508. Morta/ra v. Rail, 6 Sim. R. 465.) Every person, therefore, who 
 deals with an infant, is bound, at his peril, to inquire and ascertain the 
 real circumstances of the infant, and whether he is in a situation to 
 bind himself by a contract for necessaries. {Klines. VAmoreaux, 
 2 PaAg<Ps R. 419. Perrvn, v. Wilson, 10 Miss. R. 451. Story v. 
 P&rry, 19 Eng. C. L. R. 508.) And many years ago. Lord Kenyon 
 decided that an infant was not bound for his clothing, when it was 
 proved that his father furnished him with all that was actually neces- 
 sary. He says : " Whether he was living with his father or not, the 
 person who dealt with him was bound to inquire and know who he 
 was." {Fm-d v. FothergUl,. 1 Peake's JV. P. 230. Vide also 
 Cook v. Deaton, supra) The infant, however, may by his speech 
 and conduct give such appearance as to render any inquiry imnec- 
 etisary ; and it has been further held, that an inquiry is not a 
 
102 iiAW OF INFANCY. 
 
 condition precedent to the right of recovery for the articles 
 furnished. {Dalton v. Oih, 35 Mig. O. L. R. 49. Brayshaw v. 
 JEaton, 1 SooWs R. 183.) 
 
 § 59. If the minor be placed at school by the parent, or away to 
 board, it will be presumed that the credit was given to the parent 
 alone, and ordinarily in such cases the infant cannot bind himself 
 to pay for necessaries actually furnished. In like manner, if the 
 infant has already supplied himself elsewhere, he is not bound to 
 pay for similar articles subsequently purchased, although they were 
 per se suitable, and although he may have avoided payment for 
 those previously procured. But if the infant is living separate 
 from his parents or guardian, he may bind himself for necessaries, 
 even though he had abundant ready money and it was not at all 
 necessary that he have credit. In like manner, if the infant, with his 
 parent's or guardian's consent, is carrying on a certain business as 
 a means of support, he may bind himself to pay for articles 
 suitable and necessary for that business. 
 
 In the State of Virginia, it is provided by statute that all contracts 
 for money lent or advanced to or for the use of any student under 
 age, at the Virginia Military School, or in any incorporated coUege 
 of the State, or for anything sold or let to hire on credit to such 
 student without the previous permission in writing of the parent 
 or guardian of such student, shall be absolutely void. {Code of 
 1849, ch. 143, § 1.) This provision, however, does not apply to a 
 person so selling or letting in expectation of immediate payment, 
 if he shall, within ten days, give notice in writing, of the date, 
 nature and amount of the sale or letting, to the president or other 
 head of the institution. {II.) 
 
 In all cases the credit must be originally given to the infant, for 
 otherwise he will never be liable, although the articles were actually 
 necessary. {Bing. on Inf. 86, note 1. Varney v. Young, 11 Vt. 
 R. 258. Simffis v. JVbrris, 5 Ala. R. 42. Dunscomhe v. Tickridge, 
 Aleyn, 94. Smith v. Young, 2 Dev. <& Bat. R. 26. Maddox v. 
 Miller, 1 Mamie cfe Seho. R. 738. Burghart v. Augustein, 25 Eng. C. 
 L. R. 641. Burghart v. Bull, 4 Mees. c& Wels. 727. Wailmg v. 
 Toll, 9 Johns. R. 131. Rivers v. Gregg, 5 Rich. Eg. R. 274. 
 Rwndel v. Eeder, 7 Watts' [Penn.'] R. 237. Mcholson v. WHJborn, 
 13 Geo. R. 467.) 
 
 § 60. As to the manner in which an infant may bind himself for 
 necessarieg, the authorities do not in all respects agree. It would 
 
CONTRACTS FOR NECESSARIES. 10i$ 
 
 seem, however, to be settled that he cannot bind himself under 
 seal, or by parol, to pay any certain sum for necessaries, Jior by any 
 form of contract which on legal principles excludes an inquiry into 
 the consideration ; and should an infant promise to give an unrea- 
 sonable price for necessai-ies, he would not be bound by the 
 promise. It may therefore be said, that the contract of an infant 
 for necessaries, quatenus a contract, does not bind him any more 
 than his bond would ; but only as an infant must live, as well as an 
 adult, the law gives a reasonable price to those who furnish him 
 with necessai'ies. {Bac. Abr. Inf. I. 1, page 134) By the current 
 of authorities however, it seems that an infant may enter into a 
 single bill for the payment of necessaries, and that an action of 
 debt will lie on such obligation. (/5.) So an infant may bind 
 himself in an assumpsit for payment of necessaries, and an action 
 on the case lies against him upon the promise for this, but in the 
 nature of an action of debt. It also seems clear, that. if an infant 
 becomes indebted for necessaries, and the party takes a bond from 
 the infant, that this will not drown the single contract, because 
 the bond has no force. But it is agreed that an msimul computassit 
 will not lie against an infant, though it be for necessaries ; for he, 
 not having discretion, is not to be liable to false accounts. {Ih. a/nd 
 cases cited.) 
 
 § 61. It would seem that the promissory note given by an infant 
 for necessaries has no obligatory force as such. {Buler v. Young, 
 1 BibFs E. 519. McOrilUa v. Sowe, 3 JST. H. R. 348. McMinn v. 
 Richmond, 6 Yerger's [Tenn.] R. 9. BurcheU v. Clary, 3 Bre- 
 var^s R. 194. Swasey v. Yanderheyden, 10 JoJms. R. 33. fenton 
 V. White, 1 Southard's [iT. J.'\ R. 100. Hanks v. Beal, 3 McCord^s 
 \S. 0.] R. 227. 20 Am. Jur. 285.) It has, however, been held 
 that if the note is not negotiable, or if negotiable not yet nego- 
 tiated, so that the consideration may be examined into, the payee 
 may sue the infant on the i/nsbrwrnemt and recover the just value of 
 the necessaries, whether equal to or less than the face of the note. 
 {Earle v. Reed, 10 Mete. R. 387. Bulois v. Wheddon, 4 McGord''s 
 R. 221. Eavnes v.- Temmt, 2 HilVs {S. C] R. 400. And vide Stone 
 V. Benmson, 13 Pick. R. 1.) And the fact, as has been properly 
 suggested by one vn-iter, that the payee might not be able to 
 recover the whole amount of the notes, but would be obliged to 
 prove 'the value of the necessaries, and take judgment pro, tamto, 
 seems to constitute no technical objection to a suit on the instrument, 
 
104 ZAW OF INFAKCr. 
 
 for it is admitted that between adults a note may be apportioned 
 and judgment given for that part of the consideration -vrliich was 
 good. (Parish V. Stone, 14 PicL B. 198. And vide Harrington r. 
 Stratton, 22 ib. 516. Goodioin v. Morse, 9 Mete. R. 278.) As the 
 same writer further suggests, tlie analogy of the single bill would 
 seem to support the position of the later cases, for, as has been seen, 
 when the consideration is open to inquiry, the instrument might be 
 declared on in a suit against an infant as well as an adult. 
 If either would the infant gain imy protection by allowing him to 
 defeat an action on the note, for he M'ould be compelled to levy the 
 same amount on a quantvmi valebant. Protection is the sole end 
 of the infant's privilege, and the latter ought not to be extended 
 further than the former demands. But the point may be considered 
 as not fully settled, and in practice the general' count for goods sold 
 and delivered should always be added. {Bing. on Inf. 87, note 1, 
 sub. 2.) 
 
 § 62. Biit when the action against the infant is for necessaries, 
 no express promise is requisite to be proved ; a promise will be 
 implied if the articles furnished were actually for necessaries. This 
 doctrine is in strict accordance with the principles upon which an 
 infant is made liable for necessaries. The rule and the reason of 
 it are well illustrated in the decision of a case in the supreme court 
 of the State of New York. The actioii was brought to recover for 
 the maintenance of the defendant whilst an infant, and for neces- 
 saries furnished at the same time. No speciiic promise to pay was 
 established by the evidence. The learned judge, in delivering the 
 opinion of the court, said : " An express promise, I apprehend, 
 need not be proved, in order to render an infant liable for neces- 
 saries. When the plaintiff's demand is not for necessaries, and 
 the issue is upon a new promise after the defendant came of age, 
 an express promise must be proved ; because, there never having 
 been any legal obligation on the part of the defendant, he cannot 
 be legally liable without such promise. A moral obligation is 
 sufficieint to support an actual promise, but will not raise or support 
 an implied one. But an infant is liable for necessaries in the same 
 manner as an adult is liable ; and his contract or promise to pay 
 is established in the same manner. If an infant direct a tailor to 
 make him a suit of clothes, an express promise to pay for them is 
 not necessary in order to make him responsible ; or, if he be accom- 
 modated with board and lodging suitable to his condition, while 
 
CONTRACTS FOR NECESSARIES. 103 
 
 pursuing his academical or professional studies, he is bound to pay 
 what they were reasonably worth, though no actual promise to pay 
 can be proved. The promise is implied, and, being for necessaries, 
 it is legal and binding. Oay v. BaMou, 4 Wend. B. 403. ■Sands 
 V. Stookion, 14 B. Man. B. 232.) 
 
 § 63. The manner in which an infant may bind himself is well 
 illustrated in the decision of a case in the supreme judicial court 
 of Massachusetts. A boy, fourteen years of age, whose father 
 was dead, entered into an agreement with the defendant, to serve 
 him until he was twenty-one years of age, for his board, clothing 
 and education, and the contract was performed on both sides ; but 
 the boy, on coming of age, brought his action for his services, 
 alleging that they were worth more than the support and educa- 
 tion furnished him by the defendant. The. jury found for the 
 defendant, and the plaintiff moved for a new trial. Shaw, Ch. J., 
 in giving the opinion of the court, said: "A contract for subsis- 
 tence, clothing and education, is a -contract for necessaries, and is 
 one, therefore, which the minor has capacity to make, and which, 
 if reasonable and beneficial, will be supported by law. Most of 
 the cases, where it has been decided that a minor cannot be held 
 on his express contract for necessaries, are those where the action 
 is founded on the express obligation, and where, from the form of 
 the action, the consideration cannot be inquired into ; as an 
 action on a bond with a penalty, which implies a consideration, 
 and where an inquiry into the consideration is precluded by the 
 forms of pleading and proof. So on an msi/mul computassent, 
 when the action is founded upon the act of accounting and the 
 admission of the balance, and no further inquiry into the con- 
 sideration and terms of the contract can be ' gone into. These 
 actions are founded on the assumption that the party has full 
 power to bind himself by any lawful contract, and they only open 
 the question whether he has so bound himself. But in the other 
 forms of obligation and of action, and where it can alVays be 
 open to inquiry what the nature and terms of the contract were, 
 and whether the contract was reasonable and beneficial, a minor 
 may as well be bound by an express as by an implied contract for 
 necessaries. This is often beneficial to the minor, and enables 
 him to avail himself of any stipulations in his favor." {Stone r. 
 Dennisdn, 13 Pick. B. 1.) This is sound reasoning, and commends 
 itself to the good sense of the discriminating mind. 
 14 
 
106 LAW OF INPANCr. 
 
 It is proper to observe, also, that the fictions of legal proceed- 
 ings which formerly .prevailed, are nearly or quite superseded by 
 the present practice in our courts. The system now prevalent in 
 most of the American States, and in England, is designed, so far as is 
 practicable, to enable parties to ascertain and preserve their rights, 
 divested of the technicalities and subtleties of former systems. 
 Form now yields to substance, and the great object is to mete out 
 justice between the parties, without much respect to the form of 
 the action or proceeding. 
 ^^ 64. An infant may sometimes bind others on his contract for 
 necessaries, and it is important to understand the rules and prece- 
 dents upon the subject. And here it may be stated, as a general 
 proposition, that the only ground upon which an infant can bind 
 others by his contract, is that of an express or implied agency, 
 and unless the necessaries are purchased with the assent, express 
 or implied, of the father or guardian, or the contract be subse- 
 quently adopted by him, he is not responsible. The moral 
 obligation of a father, for example, to support his child, does not 
 make him legally liable to pay his child's debts; and to charge a 
 father, on his son's contract, the same circumstances must be 
 shown, as to charge an uncle, a brother, or any third person. The 
 son need not, however, have an express authority to bind his 
 parent, for an authority may be implied under certain circum- 
 stances, and it is always a qiiestion for the jury, whether the 
 circumstances are sufficient for that purpose. Should the father 
 know that his minor child was being boarded and clothed by 
 another, and fail to dissent or take the child away, his assent 
 would probably be implied, and he would be liable for the expense. 
 So if a father should pay a debt of his minor child for necessaries, 
 and make no objection to the tradesman, and give him no notice 
 not to trust his son again, this would probably imply an authority 
 to purchase again, even though the father, unknown to the trades- 
 man, should forbid the son to contract any moi'fe, and place him 
 under the care of a friend with directions to supply him. This 
 doctrine is abundantly sustained by a long series of authorities in 
 England, and by not a few in our own country. ( Vide Bolfe v. 
 Abbot, 25 Ung. C. L. R. 436. MorUmer v. Wright, 6 Meeson di 
 Welsby's R. 482. Seaborn v. Maddy, 38 Eng. C. L. R. 293. Baker 
 V. Keen, 3 ib. 449. Blackburn v. Mackey, 11 ib. 295. Fluck v. 
 Tollemache, 5 ib. 296. Shelton v. Springett, 63 il. 452. Clements 
 
CONTRACTS FOE NECESSARIES. 107 
 
 V. Williams, 3i ih. 291. Law v. Wilkins, 83 *5. 193. Nicliols v. 
 ^Zfen, 14 i5. 19S. Gordon v. Po^ey, 17 Vt. E. 348. Faraey v. 
 Young, 11 ti. 258. ^zm< v. Thompson, 3 /Scflwri/. [TZZ.] E. 
 180.) 
 
 Generally, it maj bo affinnecl that, if the father allow his son 
 a reasonable sum for his support, this will rebut any presumption 
 of an implied authority in him to bind the father for necessaries. 
 {Crantz v. Gill, 2 Fsp. B. 471.) 
 
 § 65. "Whether if a father turn away his child from home, or 
 neglect to provide for him, or so cruelly treat him that he cannot 
 remain under the paternal roof, is alone suflBcient to make the 
 father responsible to any one supplying the child under such 
 circumstances, seems just now to be in doubt. Certainly the rule 
 applicable in the case of husband and wife is different from that of \ 
 parent and child. If the husband abandons his wife, or sends her i 
 away, he is liable for her necessaries, and he sends credit with her | 
 to that extent ; and it is sometimes supposed that the same rule 
 would apply in case of a father abandoning or neglecting his infant 
 child. This is erroneous. There is no doubt but a parent is undei 
 a natural obligation and duty to furnish necessaries for his infant 
 children ; but how that obligation is to be enforced is not so clear. ^ 
 {^Raymond v. Loyl, 10 Barb. B. 485.) 
 
 In one case in the supreme' court of the State of New York, the 
 reporter makes the court say that, if the parent neglects that duty, 
 any other person who supplies such necessaries is deemed to have 
 conferred a benefit on a deliaquent parent, for which the law raises an 
 implied promise to pay ; though, under the circumstances of the case, 
 the parent was held not be liable. ( Van Vallcenbv/rgh v. Watson, 13 
 Johns. B. 480.) In another case in the supreme court, the learned 
 chief justice, who delivered the opinion of the court, asserted that 
 " the duty of a parent to maintain his offspring is a perfect common 
 law duty;" but that was not the question before the court for 
 adjudication. {Edwards v. Da/vies, 16 Johns. B. 285.) In a case in 
 the late court of chancery of the State of New York, the chancellor 
 said that a stranger may furnish necessaries for the child, and 
 recover of the parent compensation therefor, when there is a clear 
 and palpable omission of diity on the part of the parent in supply- 
 ing a minor child with neaessaries ; but the relief asked for in the 
 case was not granted. {In reJiider, 11 Pa/ige^s B. 188.) The same 
 doctrine is advanced by Chancellor Kent, in his commentaries on 
 
108 LAW OF INFANCY. 
 
 American law, predicated upon two or three authorities of more 
 or less weight. (2 Kenfs Com. 193.) This is the authority of very 
 eminent jurists, and yet a. careful examination of the late cases 
 will throw doubt upon the position, if it does not lead to a difiFerent 
 conclusion. There is one very strong case on this point, decided 
 by the supreme court of the State of Vermont, in the courae of 
 which Eedfield, J., said : " But there is one defect in the case, 
 which we think must clearly and indisputably preclude any 
 recovery against the father. It does not appear that the father 
 ever gave the son any authority, either expressly or by implication, 
 to pledge his credit for the articles ; but the contrary. And, unless 
 the father can be made liable for necessaries for his infant child, 
 against his own will, then, in this case, the plaintiff must fail to 
 recovej. I know there are some cases, and dicta of judges, or of 
 elementary writers, which seem to justify the conclusion that the 
 parent may be made liable for necessaries for his child, even against 
 his own will. But an examination of all the cases upon this 
 subject will not justify any such conclusion." And further on : " It 
 is obvious that the law makes no provision for strangers to furnish 
 children with necessaries against the will of parents, even in 
 extreme oases. For if it can be done in extreme cases, it can be 
 done in every case where the necessity exists ; and the right of a 
 parent to control his own child will depend altogether upon his 
 furnishing necessaries suitable to the varying taste of the times. 
 There is no stopping place short of this, if any interference what- 
 ever is allowed. If the parent abandons the child to destitution, 
 the public authorities may interfere, and, in the mode pointed out 
 by statute, compel a proper maintenance." {Gordon v. Potter, 17 
 Yt. R. 350.) This reasoning would seem to well nigh cover the 
 whole ground, though it is by no means conclusive. 
 
 § 66. In England the parent may be compelled by statute to 
 support a minor child, and, consequently, it is there held that the 
 only remedy, in case the child is abandoned to destitution, is that 
 pointed out by the statute. In a leading case. Lord Abinger, C. B., 
 said, " in point of law, a father who gives no aiithority.. and enters 
 into no contract, is no more liable fi.tr goods supplied to his son, than 
 a brother, or an uncle, or a mere stranger would be." And that 
 " the mere moral obligation on the father to maintain his child, 
 affords no inference of a legal promise to pay his debts." Still 
 further, that " to bind the father in point of law for the debt 
 
CONTRACTS FOR NECESSARIES. 109 
 
 incurred by his son, you must prove that he has contracted to be 
 bound, just in :tlie same manner as you would prove such a con- 
 tract against any other person." (Mwtim&ry. Wright^ 6 Meeson <& 
 Welsby's R. 482.) The proceedings under the statute to make the 
 father liable, are entirely independent of contract, and the liability 
 is fixed by order of court. In another case in England, Abbott, C. 
 J., left it to the jury to consider whether they could infer that the 
 order by the minor, for the articles, was given by the assent and 
 with the authority of the father. He said " that a father would 
 not be bound by the contract of his son, unless either an actual 
 authority was proved, or circumstances appeared from which such 
 an authority might be iinplied." (Baker v. Keene, 3 Eng. 0. L. B. 
 449.) 
 
 In another case the same learned chief justice held that a 
 father was not liable for clothes furnished to his son being under 
 age, unless an express or implied authority was shown. {BlacMwrn 
 V. Machey, 1 Carr. c& Pmjne, 1. S. C, 1 Eng. G. L. B. 295.) And 
 Mr. Chitty, in his excellent work on contracts, states the doctrine in 
 broad terms : " There appears, indeed, to be no responsibility on 
 the part of a father, even for necessary goods supplied to his son, 
 unless there be some proof of a contract , express or implied ; and 
 that there must be a prior authority, or a subsequent recognition 
 of the claim." {Chitty on Con. 117, Perkini ed.) -. 
 
 § 6Y. In case of desertion by the father of his minor children, 
 whether he would be liable to third persons who furnish them 
 necessaries, may be regarded in England, questio vexatio. In one 
 case in the court of king's bench, decided in 1836, Sir John 
 Campbell, attorney-general, said : " Then the question is, whether 
 a father, if he desert his legitimate child, be not liable in assumpsit 
 to any one who provides food and clothing for it. There is no 
 express decision on the point. The obligation must be as strong in 
 the case of a child as in that of a wife. The foundation, in one 
 case, is the duty on the part of the husband to provide for his wife ; 
 that foundation exists in the other case, because the primary duty is 
 equally imperative." Alexander, the counsel opposed, said : "It is 
 not true that by the common law a father is bound to maintain his 
 child. There are indeed statutory means of compelling parents to 
 provide for their .children ; but the statutes authorize only particu- 
 lar modes of enforcing the natural duty; and when such modes 
 are not resorted to, no contract can be implied like that now con- 
 
110 LAW OF INFANCY. 
 
 tended for. There is no express decision on tlie point ; and, witli 
 the exception of foreign treatises, the text-books are nearly silent 
 upon the subject." Lord Denman, C. J., said: "The general 
 question is important ; but the facts do not raise it. In order that 
 the law should imply a liability in the father to repay another for 
 supporting his child, it is absolutely necessary that desertion of the 
 child by the father should be proved. Now that is not shown 
 here." Patteson, J., said : " I agree that the question does not 
 arise. The circumstances are peculiar." The learned judge then 
 states the case, and adds : " This leaves untouched the question 
 how far a party who finds a child in a state of destitution, and 
 provides for it, can sue its father." Coleridge, J., said: "It is 
 best to say nothing on the general question. For the purpose of 
 this case, I will assume (what is not to be understood as my opinion 
 at present) that the general liability is as contended by the attorney- 
 general." The case was decided without authoritatively passing 
 upon the general question. ( JJrmston v. Newcorrihe, 31 Eng. C. L. 
 R. 393. S. a, 4.Adolph. da Ell. R. 899.) 
 
 But in another case, the law was declared to be well settled that 
 without some contract express or implied, the father is not liable 
 for necessaries. Jervis, C. J., said : " If a father turns his son 
 upon the world, the son's only resource, in the absence of anything 
 to show a contract on the father's part, is to apply to the parish, 
 and then the proper steps will Ije taken to enforce the performance 
 of the parent's duty. {Shelton v. Springett, 20 Eng. L. <& Eq^. 
 R. 281.) Neither can the question be regarded as authoritatively 
 settled in this country. In a leading case in the State of Connecti- 
 cut, the court said : " Parents are bound by law to maintain, protect 
 and educate their legitimate children during their infancy. This 
 duty rests in the father, but because the father has abandoned his 
 duty and trust, by putting the child out of his protection, he cannot 
 thereby exonerate himself from its maintenance, education and 
 support. The duty remains, and the law will enforce its perform- 
 ance, or there must be a failure of justice. The father having 
 forced his child abroad to seek sustenance under such circtmistan- 
 ces, sends a credit along with him, and shall not be permitted to say 
 it was furnished without his consent or against his will." {Stanton 
 v. Wilson, 3 Dai/s R. 37. But vide Finch v. Finch, 22 Conn. B. 
 411, where the case is commented upon, and the doctrine 
 denied.) 
 
VONTBACTS FOR NECESSARIES. Ill 
 
 § 68. In tlie States of New York and MassacliuBettB, and probably 
 in most of the states of the Union, parents may be compelled, by 
 similar statutes to those in England, to support their minor children, 
 and the later decisions seem to hold that the only remedy, in case 
 of neglect of that duty, is that pointed out by the statutes. In one 
 case in the supreme judicial court of Massachusetts, before referred 
 to upon another point, Parker, 0. J., delivering the opinion 
 of the court, said : " The liability of the father must depend 
 altogether upon the principles of law which govern the rela- 
 tion of parent and cliild. The father is obliged to support his 
 children while they remain part of his family. Perhaps 
 if he fail to furnish them with clothing and food necessary to the 
 support of life, any one who fm-nishes such necessaries may 
 maintain an action against the father, upon the presumption of an 
 assent on liis part. Perhaps, also, if he cruelly and causelessly 
 turn them out of doors, they would carry with them a credit on the 
 father, for the means of support; although it maybe questioned 
 whether, in such a case, the support of such children should not be 
 provided for pursuant to the statute, requiring the kindred of poor 
 persons within certain degrees to support them. But upon these 
 points, the case before us does not require an opinion." {Angel v. 
 MoLeUan, 16 Mass. B. 130.) This case leaves the question a little 
 in doubt as to whether the minor can make the parent liable for 
 necessaries, except by the parent's authority, express or implied, or 
 in. the manner pointed out by statute. 
 
 In the supreme court of the State of New York, a case has 
 recently been decided, in which the doctrine has been avowed, as 
 understood by the reporter, and justified by the opinion which was 
 delivered, that " there is no legal obligation on a parent to maintain 
 his child, independent of the statutes. Hence a third person who 
 supplies an infant with necessaries, cannot maintain an action 
 against the parent therefor, unless the latter has expressly or 
 impliedly contracted to pay the amount." {Raymond, v. Loyle, 10 
 Barb. E. 483.) This position, liowever, was not necessary to be 
 taken to determine the case, and it is not absolutely certain that 
 the decision by the entire court was put ujjon that ground. So 
 the question would seem to be still open in the State of New 
 York ; but considering the evident leaning of judicial opinion in 
 all the later cases, it is altogether probable that in this country, 
 as in England, the liability of the parent for necessaries fur- 
 
112 LAW OF INFANCY. 
 
 ■ nishcd to his minor children will ultimately stand solely upon 
 contract.* 
 
 § 69. There is no arbitrary rule by which to determine what are 
 necessaries for which infants may bind themselves by their contracts. 
 The term necessaries is a relative expression, to be construed with 
 reference to the actual rank, fortune and age of the infant. All 
 agree, however, that the term is not to be, strictly confined to such 
 things as are requisite for bare subsistence or support. It should 
 receive a somewhat liberal construction, and be extended to cover 
 all such things as the condition of the infant reasonably requires. 
 Lord Coke, one of the most ancient authorities upon the subject, 
 extends it to the "necessary meat, drink, apparel, physic" of the 
 infant, " and such other' necessaries ; and likewise for his good 
 teaching and instruction whereby he may profit himself afterward." 
 {Co. Hit. 172.) 
 
 The articles must be lona fide, purchased for use and not for 
 mere ornament. They need not be such as a person cannot do 
 without, or for the want of which, the infant might be uncomfort- 
 able ; but they must, in all cases, be suitable to the condition, rank, 
 fortune and circumstances of the party. 
 
 The term necessaries includes the necessary food of the infant, 
 but not dinners, confectionery and fruit, supplied him at his own 
 rooms, for a party of friends. It also includes his lodgings and 
 house rent ; but not the rent of a building for carrying on a trade, 
 or manual occupation. The term also includes pi'oper education; 
 and what would be considered a, proper education would depend 
 upon the cii'cumstances and taste of the party. A good common 
 
 * The conclasion to wMch Professor Parsons has come upon this subject, appears when he 
 says : "In this country, the rule of law varies in the different states. In most of them in which 
 the question has come before the courts, the legal liability of the parent for necessaries ftimished 
 to the infant is asserted, unless they are supplied by the fivther ; and it is put on the ground that 
 the moral obligation is also a legal one, and some of our courts have declared this quite strongly. 
 In other states the present English rule has been declared to be law, and agency and authority 
 are held to be the only ground of such liability. 
 
 The law can hardly be considered as positively settled either in England or in this country, 
 but we would state as strongly prevailing rules here, that when goods are supplied to an infant 
 which are not necessaries, the father's authority must be proved to make him liable ; where they 
 are necessaries the father's authority is presumed unless he supplies them himself, or was ready to 
 supply them. When the inlknt lives with the father, or under his control, his judgment as 
 to what are necessaries will be so far respected, that ho will be held liable only for those things 
 furnished to the infant to relieve him from absolute want. When the infant does not live with 
 the father, but has voluntarily left him, the authority of the fiither must be strictly proved, unless, 
 perhaps, in cases of absolute necessity ; K^gllfMn he has been deserted by the (Uther, or driven 
 away from him, either by command or by crtiel treatment, tJien the infant carries with him th6 
 credit and authority of the father for necessaries." (Parmns on Cm. 252-^4.) 
 
CONTRACTS FOR NECESSARIES. 113 
 
 school education would be regarded as proper and necessary in all 
 cases ; and for some a knowledge of the learned languages might 
 be included. But a regular collegiate education, for a person in 
 ordinary (iircumstances, Avould not be included within the class of 
 necesssaries ; neither would instruction in singing aind dancing, at 
 least it was formerly so held, but a phange of manners may, possi- 
 bly, now warrant a different decision. {Siderfiii's H. 446.) 
 
 Instruction in reading and writing is always regarded as neces- 
 sary ; and the reason given in an English case was, that it was for 
 the benefit of the realm. '{Manley v. Scott, 1 Sid. E. 112.) And in 
 a case in the New York supreme court, the learned judge, speaking 
 of scliooling generally, said : " It was said on the argument that 
 ' schooling ' is not a necessary. And Mr. Chitty says, it seems a 
 parent is not legally bound to educate his child. {Chit, on Con. 
 140.) A parent is almost the sole judge of what is necessary. But 
 if a parent is liable to a third person, I hope it will never be decided 
 that sending to a common school, at a suitable season, and to a 
 reasonable extent, is not.necessary in this country." {Baymond^y. 
 Loyle, 10 Barh. E. 489.) 
 
 The board of four horses for six months, the principal use of 
 which was in the business of a hackman, is held not to be within 
 the class of necessaries for which an infant is liable, although the 
 liorses are occasionally used to carry his family out to ride. 
 {Merriam, v. CunninghaTn, 11 Cush. B. 40.) So also it has been 
 held that an infant cannot be held to pay for grain furnished for 
 horses owned by a firm of which he was a member, though the 
 horfc3i5 were employed in the usual business of the firm, and though 
 he was emancipated by his father. {Mason v. Wright, 13 Meto. ■ 
 E. 306.) 
 
 It has been held that a yoke of oxen, purchased by a lad seven- 
 teen years old who was carrying on a farm for his mother, a widow, 
 and his guardian, and kept on the farm, may be a necessary accord- 
 ing to the finding of a jury ; and that the judge should not take 
 such a case from the jury. {Moheny v. Evans, 51 Penn. E. 80.) 
 
 Suitable clothing comes within the term necessaries, but not 
 suits of satin and velvet with gold lace, nor racing jackets, nor 
 cockades for an infant captain's soldiers, although regimentals for 
 a volunteer and livery for a captain's servant have been allowed ; 
 horses, saddles and bridles, liquor, pistols, powder, whips, fiddles, 
 coach hire or chronometer, balls and serenades, work bestowed on 
 15 
 
114 LAW OF INFANCY. 
 
 articles for the infant's customers, goods to trade with, money lent, 
 counsel fees and expenditures in a kwsuit, money paid for the 
 insurance of the infant's property, are all, as a general rule, excluded 
 from the class of necessaries, and will not be allowed against the 
 infant. 
 
 § 70. As before observed, no authoritative precedent can be given 
 which shall be binding in all cases, as each case is governed more 
 or less by its own peculiar circumstances, taking into consideration 
 the age, fortune, condition and rank in life of the infant ; and yet 
 the rules laid down may serve as illustrations by which to deter- 
 mine the various cases that may arise. For example, Jiorses are 
 declared generdll/y not to be within the class of necessaries ; and yet 
 if the infant was possessed of sufficient means and was in feeble 
 health and of suitable age, and was advised by his physician to 
 take exercise on horseback, a contrary rnle would imdonbtedly be 
 adopted. So, also, money lent cannot generally be recovered of an 
 infant on the ground of necessaries, even though it were lent for 
 the purchase of necessaries; and yet if the money were lent to 
 procure a liberation from arrest on a debt for necessaries, or if the 
 infant was in execution, or if the money advanced was in fact laid 
 out by the lender for the necessaries — in all these cases the money 
 lent is recoverable. 
 
 Money paid to a third person at the request of the minor, for 
 necessaries actually furnished him, is recoverable of the infant and 
 is included within the class of necessaries. 
 
 So if an infant give his promissory note for necessaries and pro- 
 cure another to sign it as surety, and the surety subsequently pay 
 the note, he may recover the amount of the infant. But articles 
 furnished to make repairs to an infant's estate are not regarded as 
 within the class denominated necessaries. ( West v. Gregg's, Adm., 
 1 Grants [Penn.] B. 53.) The authorities, both English and 
 American, upon the question what are necessaries, are very numer- 
 ous, and will tend to illustrate every possible case which can arise. 
 [Bing. on Inf. 87, note 1, svJ). 4. Peters v. Fleming, 6 Mees. <& 
 Wels. B. 43. Brookes v. Scott, 11 il. 67. Wharton v. McKmsie, 
 48 .Eng. C. L. B. 606. Burghart v. Aug-ustine, 25 ib. 690. Ear- 
 rison v. Fane, 39 ib. 556. Charles v. Boyntum, 32 il. 433. Ber- 
 alles V. Barmey, 3 ib. 32. Tuierville v. Whitehouse, 11 ib. 326. 
 Eussley v. Holt, 19 ib. 297. Kirten v. FlMot, 2 Bulstr. B. 69. 
 Love V. Griffith, 1 Scott's, 458. Mackndl v. Bachelor, Cro. Eliz. 
 
CONTRACTS FOR NECESSARIES. 115 
 
 583. Coates v. Willson, 6 Fsp. B. 152. Cla/rTc v, ZesUe, lb. 28. 
 Prohart v. Knouth, 2 i5. 472, no^e, i>i7^ v. Kingsley, lb. 480. 
 ^cfT-Ze V. Peale. 1 Salh. R. 387. Dorly v. Boucher, 2 i5. 274. 
 5anfl{s V. Slaney, 8 T. jB. 578. CZowes v. Brooks, 2 /Si!/', i?. 1100. 
 Whyhall v. Chamvpion,lb. 1083. Middleburg College v. Ohcmdler^ 
 16 Fi!. i2. 683. Bradley v. Pm«, 23 tJ. 378. J.ieZZ v. TTaT-rew, 
 4 i5. 152. Rent v. Manning, 10 iJ. 225. (7on» v. Coburn, 7 iV^. 
 //. ^. 368. A^raiiA V. Bean, 8 iJ. 15. Phelps v. Wwcesfer, 11 «5. 
 51. The M. F. Insurance Co. v. Noyes, 32 ij. 345. Beebe v. 
 rawny, 1 BiMs. R. 519. G^ZweT- v. Ott, 1 McCord's R. 524. iJawi- 
 wate/* V. Dunham, 2 iVbii tfe McCord's R. 524. GVace v. ^Ze, 2 
 mimph. R. 27. Barnes, J.<?m. v. Tarrant, 2 ^iZZ's [-& C] R. 400. 
 IFaZfe/- V. Simpson, 7 IFa^fe c6 /Ser^. J?. 83, 88. Randall v. Sweet, 
 1 Demo's R. 460. ZTa/*^ v. Prates, 1 t/w?-. ^. 623. /Slfowe v. Withipool, 
 Latch. R. 21. /Sroi^A v. Oliphant, 2 xSiindZf. [/S C] ^. 306. Mar- 
 Imo V. Pitfield, 1 P. TTm. P. 558. Ellis v. ^^Zw, 1 Z(?. Ray- 
 mond's R. 344. BrayshoAD v. Eaton, 5 Bmgham's If. C. 
 231. xSMJi/i! v. Bennett, 10 Cushvng's R. 436. Stamton v. Fi7«ora, 
 3 Z>ay's P. 57. 
 
 § 71. Necessaries for the wife of an infant are regarded in law as 
 necessaries for him, and the infant is liable to pay for them; 
 though it has been held that if the articles were furnished in order 
 for the marriage the infant husband would not be chargeable 
 though she use them. Nursing the lawful child of an infant will 
 also be considered as coming within the class of necessaries; and 
 likewise articles furnished for the necessary comfort of his children. 
 It would seem also from authority, that an infant is bound for 
 necessaries furnished for his wife dum sola / and yet it is not easy 
 to reconcile this authority with that which holds that the infant is 
 not chargeable for necessaries furnished the wife for her marriage. 
 But this rule must be understood as applying only to such debts 
 as the wife was legally liable to pay at her marriage. 
 
 In the State of New York it is provided by statute that a j"udg- 
 ment may be recovered against the husband and wife jointly, for 
 any debt of the wife contracted before marriage, but that such judg- 
 ment and the execution issued thereon shall bind the separate 
 estate and property of the wife only, and not that of the husband ; 
 except that if the husband acquire the separate property of hia 
 wife, or any portion thereof by any antenuptial contract, or oth- 
 wise, he is made liable for the debts of his wife contracted before 
 
116 LAW OF INFANCY. 
 
 marriage, to the extent only of the property so acquired. {Vide 
 JV. T. Laws of 1853, ch. 576. Parish y. Strcmd, Barnes' notes 
 95. Eadnsford v. Fenwick, CarUr's B. 215. Butler v. Brick,. 1 
 MetG. B. 164. Turner v. Trisley, 1 Stra. E. 168. Eoach v. Quick, 9 
 Wend. B. 23.) So it seems to be settled that the funeral expenses of 
 a deceased husband or wife, dying without assets, are within the 
 class of necessaries, and are chargeable upon the survivor. {0]iajp- 
 fle V. Cooper, 13 Mees. db Wets. E. 252.) 
 
 Although an infant is not in general absolutely liable for money 
 or goods supplied him for trade, still so much as was actually con- 
 sumed by him as necessaries in his own family he would be 
 chargeable for. {Turlerville v. Whitehouse, 1 Carr. S Payne's E. 
 94. S. a 11 Fng. C. L. E. 326.) 
 
 Many articles which at first sight appear to be necessaries for an 
 infant, on investigation may prove not to be so in reality ; and in 
 that case the infant is not responsible ; and there being no inflex- 
 ible rule upon this subject, an inquiry into the situation and 
 resources of the iniant would seem to be in every case almost indis- 
 pensable as a condition precedent to recover. 
 
 In addition to the authorities already cited, others may be refer- 
 red to as bearing more or less upon this question. {Montara v. 
 IlaU, 6 Sim. E. 465. Wailing v. Toll, 9 Johns. E. 141. Gnih- 
 rie V. Murphy, 4 Watts' E. 80. Butler v. Brick, 7 Mete. E. 164. 
 Tupper V. Oadwell, 12 il. 559.) 
 
 § 72. As has been before asserted, the law distinguishes between 
 persons upon this subject of necessaries, as between a nobleman 
 and gentleman's son; also in point of time and education, as at 
 school or otherwise. The infant is not to be looked upon in the 
 same condition when a school-boy as when of riper years. This 
 illustrates the statement that the condition of the infant is to be 
 considered in settling the question of necessaries for an infant. 
 
 It is asserted by Bingham, upon authority, that, if an infant 
 promises another that if he will find him meat, drink and wash- 
 ing and pay for his schooling, he will pay a certain sum yearly, an 
 action on the case lies upon the promise ; for learning is as necessary 
 as other things ; and though it is not mentioned what learning this 
 was, yet it will be intended what was fit for him till it be shown, 
 to the contrary on the other part ; and though he, to whom the 
 promise was made, do not instruct the infant but pays another for 
 it, the promise of repayment is good. {Bing. on Inf. 88.) 
 
CONTRACTS FOB NECESSARIES. 117 
 
 So in an action of assumpsit for labor and medicines in curing 
 the defendant of a distemper, nonage was pleaded by the defend- 
 ant, and the plaintiff replied, necessaries generally. Upon demurrer 
 to this replication it was objected that the plaintiff had not 
 assigned in certain, how or in what manner the medicines were 
 necessary; but the court adjudged the replication good. {lb. 
 Huggms v. Wiseman, Garth. R. 110.) The doctrine here stated 
 shows that presumptions may be indulged in these as in all other 
 cases of contract. So it has been held that if an infant comes to a 
 stranger, who instructs him in learning and boards him, there is an 
 implied contract in law, that the partylshould be paid as much as 
 his board and schooling are worth, provided the condition of the 
 infant was such as to make him liable for necessaries furnished 
 to him. {Bac. Air. Infancy, I l,p. 134.) This shows that the 
 contract of an infant may be implied as well as that of an adult. 
 
 § 73. The question of necessaries is regarded as a mixed question 
 of law and fact. The court wiU decide whether the articles fur- 
 nished come within the class of necessaries suitable to any one, 
 whether infant or adult, in the defendant's situation and condition 
 of life ; and should the court decide in the affirmative upon that ■ 
 proposition, then the jury are to judge and decide whether the par- 
 ticular articles furnished were actually necessary under the circum- 
 stances of the individual case. It is not easy in all cases to 
 determine the respective functions of the court and jury in the trial 
 of these questions ; for it has been held that the court are some- 
 times judges of the quantity, as well as the quality, of the articles 
 furnished. And, again, it has been decided that the jury are not 
 always the sole judges of what is necessary and proper; and 
 if they find a verdict contrary to the opinion of the court, a new 
 trial will be granted. But, notwithstanding the difficulty in draw- 
 ing a clear and well defined line of demarkation between their 
 respective jurisdictions, the above rule as to the legitimate duties 
 of the court and jury in these cases, will generally be found to be 
 practically correct. There are several authorities tending to illus- 
 trate and establish this rule. {Bing. on Inf. 87, note 1, suJ>.?>. 
 Peters v. Fleming, 6 Mees. <& Wels. B. 42. Bwghart v. Augustme, 
 . 25 Eng. C. L. B. 600, Whwrtm v. McKenzie, 48 ih. 606. Rarri- 
 rison v. lane, 39 ib. 556. Stanton v. Willson, 3 Bay^s B. 37. Beebe 
 v. Young, 1 BibVs R. 19. Swift v. Bennett, 10 Omh. B. 436. Bent 
 V. Marmmg, 10 Vt. B. 225. Glover v. Ott, 1 McCord's B. 672. 
 
118 LAW OF INFANCY. 
 
 Bouchett V. Clarmf^ 3 Br&oarWs R. 19i. PMps v. Worcester, 11 
 N. H. R. 51. Eckbert, Admr., v. Lines, 6 TTa^i^ cfe ^Sfery. R. 80. 
 ^MwrfeZ V. iTeefcj-, 7 PTaWs' 7?. 237. (yrace v. Rale, 2 Humph. R. 27.) 
 
 § 74. lu au action brought against an infant, if tlie plaintiff put in 
 a simple replication of n-ecesaaries to the defendant's plea of infancy ; 
 the defendant is not bound to prove his infancy, for the fact of 
 infancy is admitted by the replication ; and the burden of proving 
 the articles necessaries is, of course, always on the plaintiff. It 
 has been supposed, from the language of the court in some cases, 
 that, in order to make out a prima fade case, the plaintiff must 
 not only show that the articles came within the class of necessaries, 
 suitable to a person in the position, condition and circumstances of 
 the defendant, but that lie must also show the infant's actual, or, 
 at least, apparent want, necessity or destitution, at the time the 
 articles were furnished. It is probable, however, that the rule is 
 not thus strict, and that the replication of " necessaries suitable to 
 the then estate, degree and condition in life of the defendant," 
 throws on the plaintiff' the burden of proving only the infant's 
 degree, fortune or occupation, and standing in life, and that the 
 articles were, in their nature, quality and quantity, necessary and 
 suitable to every one in that situation and condition. In one case, 
 decided before a full bench in England, Baron Parke gave an 
 opinion obiter, " that if prima fade and abstractedly from circum- 
 stances, the ai'ticles were proper for his rank and station in life, that 
 would be BufBcient for the plaintiff to prove ; if he was supplied 
 almnde, that must be proved by the defendant." {Burgharl v. 
 Hall, 4 Mees. <Ss Wels. R. 731.) And this seems to be in accordance 
 with the pi'actioe at Nisi Prius. 
 
 It appears, from the Nisi Prius Eepoi'ts, that in one case on trial 
 the plaintiff proved only that the defendant was a lieutenant in 
 the militia, and had been introduced to the plaintiff by a peraon 
 of distinction, and then proved the delivery of the goods and their 
 value, and rested his case. The defendant then went into rebutting 
 testimony. {Ford v. Mthergill, 1 Esp. 211.) And in another case 
 reported, it does not appear that the plaintiff proved any more 
 than that the defendant was th« son of a certain lord, and 
 that the clothes were furnished at a certain time and at reasonable 
 charges on the part of the defendant, witnesses were then called 
 on the defense. {Story v. Perry, 19 Mig. G. L. R. 508.) The 
 same course appears to have been taken in still other cases on the 
 
CONTRACTS FOR NECESSARIES. 119 
 
 trial at Nisi Prius. {Crantz v. Gill, 2 Esp. 471. Steedman v. 
 Base, 4rl JSra^. C. L. M. 232.) These, of course, are not exactly 
 authority on the point, because the question does not seem to have 
 been raised and passed upon by the court ; and yet, from the fact 
 that the question was not raised, we may infer that the understand- 
 ing of the court and counsel was in accordance with the practice 
 which was adopted. 
 
 § 75. As has been very pertinently suggested by one writer upon 
 the subject, the facts concerning the infant's previous pro-vision or 
 supply and the like, being necessarily so much more peculiai'ly 
 within his own knowledge, should, it seems, more properly come in 
 as rebutting testimony, and by way of special defense. It is a general 
 rule of evidence, that the onus is on the party within whose pecu- 
 liar nieans of information the fact lies, and it would not seem that 
 this case should be an exception to the rule. This throws no 
 greater burden on the infant than is done by compelling him to 
 prove his infancy the second time in answer to a replication of a 
 new promise, as the. practice universally requiresj because the 
 personal incapacity to contract, on which the infant grounds his 
 defenses lies so peculiarly within his own knowledge. (1 Phil- 
 Ujyps on JSvidence, 199. B&rihwick v. Carruthers, 1 T. H. 648. 
 Bigihw V. Crrannis, 4 HiWs [iV. JT.] B. ,206. Bay v. Chmn, 1 
 Deino's R. 108.) 
 
 The language of some cases, that the " tradesman is bound to 
 inquire into the infant's circumstances or he trusts him at his 
 peril," means nothing more than that the tradesman runs the risk of 
 being able to prove the articles necessary at the trial. {Steedman 
 V. Bose, 41 Eng. C. L. B. 232.) The making such inquiry, there- 
 fore, has no necessary bearing on the real point at issue, and is 
 never necessary to be proved, and wholly unnecessary to be made 
 before trusting the infant, except as a matter of satisfaction and 
 safety of the tradesman. (Brashaw v. Eaton, 35 Eng. G. L. B. 99.) 
 
 If any part of the articles furnished the infant is proved to be 
 necessary, the plaintiff may recover ^w tanto. {Burt v. Mcmning, 
 10 Vt. B. 225. Maddox v. Miller, 1 Maule <& Selwyn^s B. 738. 
 TuberviUe v. WMtehouse, 12 Price's, 692.) The positions taken in 
 this and the last preceding section are substantially those which 
 are found in the American notes to Mr. Bingham's work on infancy, 
 where the references are also mostly to be found. {Bmg. on Inf. 
 87, note 1, svb. 6.) From the rules laid down and the illustrations 
 
120 LAW OF INFANCY. 
 
 given it will not be difficult to determine on which party the 
 burden of proof in all these cases lies. 
 
 § 76. Upon this subject of necessaries, then, it must always 
 appear that the things furnished were actually necessary, of reason- 
 able prices, and suitable to the infant's situation, condition and 
 estate ; that in no case is the infant bound by the specific agree- 
 ment to pay for necessaries, but the question is always open to 
 show what the articles were actually worth ; that the credit must > 
 be actually given to the infant and to no one else, and that no 
 actual promise to pay for necessaries is required, but if it appear 
 that the articles furnished were necessaries a promise to pay for 
 them will be implied. That an infant may bind his parents to pay 
 for necessaries furnished him by others when he has an authority 
 to do so, expressed or implied ; but whether he can do so without 
 such authority is still somewhat in doubt ; though the English rule 
 would seem to be tolerably well settled, tliat the father's liability 
 rests wholly upon the ground of agency ; and this rule is declared 
 to be law in several of the states, with the indications that it will 
 ultimately be adopted in aiU of the American States. That tlio 
 term " necessaries " embraces the necessary meat, drink, appai'el, 
 medical treatment, and the like, and proper teaching or instruction 
 of the infant, including necessary articles for the support of his 
 wife and children. That the wants to be supplied must be personal^ 
 either those for the body, as food, clothing and lodging, or those 
 necessary for the proper cultivation of th6 mind, as instructions 
 suitable and requisite to the useful development of the intellectual 
 powers, and qualifying the individual to engage in business when 
 he shall arrive at the age of manhood. That the term necessaries 
 does not embrace goods purchased by the infant to trade with, 
 because the law does not deem him competent to carry on such 
 business. That it is always a question of law for the court, whether 
 articles for which an infant is sued are within the class of neces- 
 saries, and the jury are to pass upon their adaptation to the 
 condition and wants of the infant ; and that the rules of evidence 
 in these cases are the same as in cases of adults. It may also be 
 added that, in an action against an infant for necessaries, he may 
 interpose the same matters of defense as adults can in similar cases. 
 {Francis v. Felmet, 4 D&o. tSs Bait. S. 496.) 
 
 The interesting views of Professor Parsons upon this subject, as 
 gathered from the authorities, may be profitably consulted, together 
 
CAPACITY OF INFANTS. 121 
 
 with the references which he makes. ( Vide Parsons on Contracts, 
 244-257, and the notes and references.) 
 
 "When the contract is for necessaries, an infant may take the case 
 out of the statute of limitations by an acknowledgment that the 
 debt was for necessaries. ( Willms v. iSmith, 82 JEhg. O. L. B,. 179.) 
 
 CHAPTEE VIII. 
 
 OF WHAT rSTFANTS AEE CAPABLE WHAT IS BrPTDING ON THEM BESHJES 
 
 THEIR CONTEACTS FOR NECESSARIES OFFICES MARRIAGE OF 
 
 INFANTS HOMAGE — WILLS OF PERSONALTY — FINES AND USES 
 
 MARRL4.GE SETTLEMENTS. 
 
 § 77. Said Lord Mansfield : " Miserable, indeed, must the condi- 
 tion of minors be ; excluded from the society and commerce of the 
 world ; deprived of necessaries, education, employment and many 
 advantages; if they could do no binding acts. Great inconven- 
 ienpe must arise to others if they were hound by no act. The law, 
 therefore, at the same time that it protects their imbecility from 
 injury through their own imprudence, enables them to do binding 
 acts for their own benefit, and, without prejudice to themselves, for 
 the benefit of others." (Cecil v. Salslury, 2 Vem. Ch. E. 224.) 
 We have aheady seen that an infant, under certain circumstances, 
 may bind himself absolutely for necessaries, and that he may be sued 
 and charged in execution in all such cases, the same as an adult. 
 An infant has a capacity to do many other binding acts which are 
 as valid in law as though done by an adult. 
 
 § 78. An infant is capable of holding and discharging the duties 
 of all such oflices as do not concern the administration of justice, 
 but only require skill and diligence ; and these he may either exer- 
 cise himself when of the age of discretion, or they may be exercised 
 by deputy. In England it has been held that he may properly hold 
 the ofiices of park-keeper, forester and jailer; and the statute 
 extends to an infant jailer, so as to charge him in an action of debt 
 for an escape of one in execution. [Slwevishwry's case, 9 CoMs E. 
 48. Sir George BeynoWs case, 11. 97. King v. JDilliston, 2 
 Mod. E. 222.) 
 
 It is laid down, as a general proposition of the common law, 
 that a mere ministerial office may be granted to an infant in pos- 
 16 
 
122 LAW OF INFANCY. 
 
 session or reversion, for he may exercise it by deputy. {Auditor 
 Cuvle's case, 11 Co. JR. 4 a.) 
 
 An infant may be deputed by the sheriff to serve a particular 
 writ, and his acts while in the discharge of that duty will be as 
 binding as though done by the sheriff himself. {Barrett v. Sewourd, 
 22 Yt. E. 176.) 
 
 It has been held, in the State of Ohio, that an infant may execute 
 a mere power. {Sheldon v. Newton, 5 Ohio R. 494.) The same 
 doctidne has been laid down in the State of Mississippi. {Thomp- 
 son V. Lyon, 20 Miss. E. 155.) And in the State of Missouri it 
 has been held that an infant may be authorized to exercise the 
 power of appointment by the instrument creating the power, but 
 that he cannot exercise such power if it is coupled with an interest. 
 {Schneider v. Staihe, 20 Mo. B. 269.) 
 
 An infant who purchases land for another, takes a deed in his 
 own name, and then immediately conveys to the proper person, 
 cannot repudiate the deed on the ground that an infant may execute 
 a power as absolutely and irrevocably as an adult. {Shddon v. 
 Newton, 3 Ohia N. S. B. 494.) But an infant cannot be authorized 
 to execute mesne process by the magistrate issuing it. {Sarvey v. 
 Ball, 22 Vt. B. 211.) 
 
 An infant may act as the attoi-ney or agent of another, for it is 
 not necessaiy that a person be sui juris, or capable of acting in his 
 own right, in order to qualify him to act for others ; though, as a 
 general thing, an infant will not be admitted to act as an attorney 
 to appear and prosecute or defend actions, or represent the persons 
 of others in courts of justice. This is prohibited by the constitu- 
 tion and laws of most of the states. "We have seen that an infant 
 may be the mayor of a city, and that his acts as such mayor cannot 
 be . avoided by reason of his nonage. {Ante, § 5.) So an infant 
 may execute a deputation to a seneschal or steward of his manor, 
 for the reason that it would be to his benefit to be permitted to do 
 BO. {Halliburton v. Leslie, 2 Sogam^s B. 252. Vide, also, Edle- 
 stone V. Collins, 13 Eng. L. & Eg. B. 331. S. C. 17 ib. 295.) 
 
 § 79. An infant may hold and own property, both real and per- 
 sonal ; and this right is as clear and well protected as that of a 
 person who has arrived at full age. {McCloshey v. Cyphert, 27 
 Penn. S. B. 220.) 
 
 A minor, who is allowed to go and make contracts for himself 
 without interference, though there may have befen no formal eman- 
 
CAPACITY OF INFANTS 123 
 
 cipation by the father, may acquire property and bring actions 
 concerning such property. [Bookier v. Boliva/r, 39 Mame B. 406.) 
 And a minor who has been emancipated by his father may hire a 
 farm and then take his father and support him on the farm, 
 and notwithstanding hold the crops raised as his own property. 
 {McCloskey v. Cyphert, 27 Penn. S. R. 220.) And if a father give 
 his infant child an article of dress or ornament; he cannot after- 
 ward reclaim it without the infant's consent. {Smith v. Smith, 32 
 Eng. G. L. R. 677.) 
 
 An infant is capable of inheriting for the reason that in law he 
 may hold property. If an infant be lord of a manor, he may 
 grant copyholds, notwithstanding his nonage, for these estates do 
 not take their perfection from the interest or abihty of the lord to 
 grant, but from the custom of the manor by which they have 
 been demised and are demisable, time out of mind. {Bog. Ab. tit. 
 Infancy, F. 127.) So also in England an infant may present to a 
 church, and it is said that this must be done by himself, of what- 
 soever age he be, and cannot be done by his guardian, for the 
 guardian can make no advantage thereof, and consequently has 
 nothing therein whereof he can give an account, and therefore the 
 infant himself must present. {Bac. Ab. tit. Infancy, F. 127.) 
 "We have no copyholds or advowsons or church presentations in 
 the United States, so that these rights, as appertaining to infants, 
 have no application here ; and yet the matter is regarded of suf- 
 ficient importance to refer to it. Cases may possibly arise where the 
 same principles are involved. 
 
 § 80. By the common law an infant may be an executor at the 
 age of seventeen, and his acts as such will bind him unless they 
 amount to a devasta/oit. If an infant, under the age of seventeen, 
 be appointed executor, and administration " durante minore mtate " 
 be granted another, such administration ceased at common law 
 when the infant arrived at the age of seventeen. {PigotPs case, 5 
 Cokeys R. 29.) And when an infant is appointed executor, adminis- 
 tratione dv/rante may be committed to the mother or another friend 
 of the infant, which will cease and be void when the infant is of 
 the age of seventeen years. {Princess case, 5 Cohens R. 30). 
 
 Eut the age of competency for the office of executor or adminis- 
 trator is fixed by statute in many of the American States at twenty- 
 one. Thus, in the State of New York it is declared by statute that 
 no person shall be deemed competent to serve as an executor who, 
 
124: LAW OF INFANCY. 
 
 at the tijne the will is proved, shall be under the age of twenty-one . 
 years. (3 ^../^. 69, § 3. 2 Stat, at Large, 11.) 
 
 By the Eevised Statutes of Vermont, if an infant is named exec- 
 utor, administration, with the will annexed, will be granted during 
 his minority unless there shall be another executor who shall accept 
 the trust and give bond, and the minor on arriving at full age may 
 be admitted as joint executor. (1 li. 8. ch. 46, § 6.) Such also is 
 the law in the State of Massachusetts {Gen. Stat. ch. 93, § 7), and the 
 same in the State of Maine {R. S. ch. 64, § 15), and the same in Khode 
 Island (i?. S. ch. 156, § 3), and the same in Pennsylvania {Purdon^s 
 Digest of 1849, ch. 425, § 23) and in Ohio (1 li. S. ch. 43, § 8), and 
 the same in tlie new State of Nebraska {Ti. S. ch. 14, § 168). 
 
 In the State of Missouri the law upon the subject is the same as 
 in New York {Gen. Stat. ch. 120, g 5) ; and the law is the same in 
 Texas {Oldham c& White's Digest, art. 706) ; and the same in the 
 State of Oregon {Gen. Laws 1864, ch. 15, § 1075). 
 
 In the State of New Jersey executors are required to give bonds 
 for the faithful performance of their trust ; and as infants are not 
 in general bound by their bonds, probably none but adults can act 
 as executors. {Elmer's Digest,lS^^, p. 2'2i,%l.) The same would 
 seem to be the law in Virginia {Code of 1849, ch. 130, §1. 
 Mv/iiros V. Jones, 4 Munf. Li. 194) ; and the same in North Caro- 
 lina {Revised Code, ch. 46, § 4) ; and also in the State of Louisiana 
 {Rev. Stat, of 1856. p. 3, % 5). 
 
 In the State of Maryland it is provided by statute that if the 
 executor named in any will shall be under eighteen years of age, 
 letters testamentary shall be granted and issued in the same man- 
 ner as though none had been named. (1 Code, art. 93, § 52.) And 
 it is further provided that the bonds of an executor over eighteen 
 years of age shall be binding in all cases and upon all parties. 
 (/5.§59.) 
 
 In Illinois persons at the age of seventeen may act'as executors, 
 though a discreet person must be appointed when the executor is 
 under twenty-one, to manage and control the trust until such 
 executor shall become of age. {Gen. Stat. p. 1185, § 23.) 
 
 In the State of Mississippi the statute expressly provides that 
 minors, at the age of eighteen, may be appointed and act as 
 executors. {Rev. Code, ch. 60, art. 51.) 
 
 In those States where the subject is not governed by statute, 
 the qualifications of executors, of coui'se, will be the same as at 
 
MARRIAGE OJ? IN-FANTS. 125 
 
 common law. In the State of New York it has been held that an 
 infant executor, who should happen to be appointed, though irreg- 
 ularly, will be responsible for all acts done after coming of age 
 and before revocation; but that he will not bo compelled to 
 account for any assets coming to his hands during infancy. 
 {Carver v. Mowatt, 2 JE<ko. Ch. B. 5T). But in the State of Ver- 
 mont it has been held that an infant executor is responsible for a 
 fraudulent execution of his trust. {.Loqf v. Zoof, 1 Vt. R. 111.) 
 
 § 81. Unless there is some statutory restriction, males at the age 
 of fourteen and females at the age of twelve are capable of con- 
 tracting and consummating marriage ; those periods respectively 
 being the age of consent to a marriage, as fixed by the common 
 law. Contracts of marriage between infants, when both are of the 
 age of consent, if executed, are as binding as if made by adults ; 
 but if either party is under that age iot/i have the privilege of 
 avoiding ; a principle, as has been well said, not found in any other 
 contracts of infants. (1 Parsons on Con. 278.) Infants under the 
 age of consent sometimes marry ; and when they do and agree to 
 the marriage when they attain those ages the marriage is good ; 
 but at common law they cannot disagree before the age of consent, 
 and both must be bound by the marriage or neither. {Co. Litt. 79 
 &.) If the parties marry within the age of consent and the wife 
 have a child begotten after the marriage solemnized wfra annos 
 iiiMles, and they are afterward divorced by reason of snch prema- 
 ture solemnization of marriage, the child will be regarded as a bas- 
 tard. {KenrCs case, 7 CoTc&s R. 42.) If after the age of consent the 
 parties disagree by parol, and subsequently agree and live together 
 as husband and wife the disagreement's not binding, for they may 
 properly cohabit together without any new marriage, and the agree- 
 ment to do so after the ,age of consent is a ratification of the mar- 
 riage. So if a man within the age of fourteen takes a wife of full 
 age and after brings a writ "de inuUere dbducta cum bonis viri;" ' 
 that is, liberally rendered, " concerning a woman taken away with 
 her husband's goods," and continues the action after fourteen, this 
 is held and considered to be an agreement to the marriage, so that 
 it cannot afterward be defeated. {Bmg. on Inf. 75.) But though it 
 is held that the party above age may as well disagree as the other, 
 yet he cannot do it before the other arrives at the proper age; at 
 least such is the rule at the common law. It has also been held 
 that if a man marries a wife within the age of consent and the 
 
126 LAW OF INWANGT. 
 
 woman at the age of eleven years disagrees to the marriage, and 
 the husband takes another wife and has issue by her, this issue is a 
 bastard; the first marriage continuing notwithstanding the disa- 
 greement of the woman ; for her disagreement within the age of 
 twelve years is void. {Bmg. on Inf. 76.) It is doubtful, however, 
 whether this doctrine would be recognized as sound in this country 
 or even in England at the present day. {Parsons on Con. 564.) 
 It has also been adjudged that if the same woman after the ago of 
 twelve years had married another, the first maniage would have 
 been thereby absolutely dissolved, so that the husband might take 
 another wife. {Bing. on Inf. T6.) The better opinion now is that 
 parties marrying before the age of consent may dissent to the mar- 
 riage within nonage, and thus avoid it in toto. 
 
 § 82. The consent of parents or guardians to the marriage of 
 minors is required by the marriage acts of England and by the 
 statutes of several of the American States. By the English statute 
 such marriage of minors without such consent is declared to be 
 absolutely void. (26 Geo. II, ch. 33.) 
 
 In the State of Ifew York the age of consent to marriage was 
 formerly fixed at seventeen in males and fourteen in females, but 
 the provision was soon repealed, and the common law rule now 
 prevails in that State. Should a marriage be solemnized between' 
 parties within the age of consent, the marriage is declared to be 
 void from the time its nullity shall be declared by a court of com- 
 petent authority ; and in no case will the taarriage be annulled on 
 the application of a party who was of legal age at the time it was 
 contracted, nor when it shall appear that the parties, after they 
 had attained the age of consent, had for any time freely cohabited 
 as husband and wife. (2 R. S.part 2, ch. 8, tit. 1, §§ 4, 21. 2 Stat, 
 at Large, 144, 148.) If the female is under twelve years of age at 
 the time of her marriage, and subsequently dissents, the court of 
 chancery in one case enjoined the husband from all intercoiu-se 
 Math her. {Ayman v. Raff, 3 Johns. Ch. R. 49.) 
 
 In the State of Maine, males under the age of twenty-one and 
 females under the age of eighteen are forbidden to be married 
 without the consent of their parents or guardians. {R. 8. ch. 59, 
 § 6.) They have a similar provision in the State of Massachu- 
 setts. {Gen. Stat. ch. 106, § 9.) 
 
 In the State of Vermont, when the male is under twenty-one 
 or the female under eighteen, the solemnization of the marriage is 
 
MARRIAGE OF INFANTS. 127 
 
 expressly forbidden, except the parent or guardian of the minor, if 
 there be any in the State competent to act, shall be present and 
 assent to it, or give consent thereto in writing. (/?. /S. 1863, ch. 
 69, § 8.) The law of New Jersey on the subject is similar to 
 that in the State of Maine. {Elmer's Digest, 1855, j?. 464, § 3.) 
 In the State of Pennsylvania all persons, both male and female, 
 wishing to join in marriage before they attain to the age of twenty- 
 one, must obtain the consent of their parents or guardians to such 
 marriage. {PurdorCs Digest, 1849, ch. 41, § 1.) 
 
 In the State of Ohio the age of consent to marry is raised to 
 eighteen in males, and fourteen in females, and even then they 
 must obtain the consent of their parents or guardians if they wish 
 to marry before they arrive at full age. (1 R. 8. ch. 11, § 10.) 
 
 By the statute of Indiana, the age of consent to marry is fixed 
 at seventeen . for males, and fourteen for females, but the consent 
 of parents or guardians is necessary for the marriage of infants. 
 (1^. >S'. 1862, cA. 95, §5.) 
 
 The law of Illinois upon the subject is the same as of Indiana. 
 {Gen. Stat. 1858,^. 579, §1.) 
 
 In the State of Wisconsin males may consummate the marriage 
 contract at eighteen, and females at fifteen, although the consent 
 of parents or guardians of infants is requisite. {B. S. ch. 109.) 
 
 In the State of Michigan males may marry at eighteen, and 
 females at sixteen. (2 Comp. Lanos, 1857, ch. 107, § 1.) Under 
 the statute of Michigan, when parties are married, one of whom 
 is over and the other under the age of consent, the former is bound 
 by the marriage, unless they separate by consent before the other 
 reaches lawful age, and do not cohabit afterward, or unless the 
 other refuse consent on arriving at that age. And a second mar- 
 riage by the former, in the absence of such mutual separation, or 
 such refusal to consent, is bigamy. {PeopU v. SlacTc, Am. Law 
 Beg.JSr. 8. 318. 8. C. 15 Mich. B. 193.) 
 
 In the State of Iowa the age of consent for males is sixteen, and 
 for females fourteen, and in all oases where the party is an infant, 
 the consent of the parents or guardian is necessary. {Bev. Laws, 
 1860, ch. 102, §§ 2515, 2521.) 
 
 In the State of Minnesota the law upon the subject is the same 
 as in "Wisconsin. {L(ms of 1848, ch. 52, §§ 2, 7.) 
 
 In the State of Missouri the age of consent is fixed for males 
 at twenty-one, and for females at eighteen, though they may marry 
 
128 LAW OF INFANCY. 
 
 under those ages respectively by and with the consent of their 
 parents or guardians. {Gen. Stat. ch. 113, §5.) 
 
 In Nebraska males may marry at the age of eighteen, and 
 females at the age of sixteen. {B. S. ch. 34, § 2.) 
 
 In Oregon the same period is fixed for males, and fifteen for 
 females. (Gen. Zaws, 1864, Cwil Code, eh. 31, § 1.) 
 
 In the State of Texas it is declared by statute that males under 
 fourteen, and females under twelve, shall not marry, being simply' 
 the re-enactment of the common law upon the subject. {Oldham 
 cS; White's Digest, art. 2440.) 
 
 In the State of Virginia the law is the same as in Texas. {Code 
 of 1849, title 31. ch. 109, § 3.) 
 
 In Maryland the right to marry is unqualified as to the age of 
 consent, except that the statute imposes a fine upon any minister 
 or other person authorized to perform the marriage ceremony, who 
 shall knowingly join in matrimony any male under twenty-one, or 
 female under the age of sixteen, without the consent of the parents 
 or guardian of such male or female. (1 Code, art. 93, § 52.) 
 
 In North Carolina the age of consent is fixed for males at sixteen, 
 and for females at fourteen. {liev. Code, ch. 68, § 14.) And in 
 the State of Mississippi the law upon the subject is the same as 
 in the State of Maine. {Rev. Code, 1857, ch. 40, oH. 6.) 
 
 In all or nearly all of the remaining states the age of consent is 
 the same as that established by the common law. 
 
 § 83. It has been observed that by the law of England, the mar- 
 riage of minors without the consent of their parents or guardians, 
 is absolutely void, unless the statute is thus explicit and pointed. 
 The marriage without such consent would probably be valid, 
 although the person celebrating the nuptials might be punished tor 
 a violation of law. Indeed, this view has been sustained by 
 express adjudication in the State of Massachusetts, in a case in 
 which it appeared that a female infant of the age of thirteen 
 years was married to an adult male, without the knowledge 
 or consent of her parent and guardian. The court, after referring 
 to the common law rule, fixing the age of consent in females 
 at twelve, and fourteen in males, proceeds : " Contracts of 
 marriage between infants, being both of the age of consent, if exe- 
 cuted, are as binding as ifniadc by adults. {Co. Ziti. 7Q h. lieeve's 
 Bom. Rel. 236, 237. 20 Am. Jurisp. 275. 2 Kent's Com. \%th ed?\ 
 78. Pool V. Pratt, 1 Chij^. B. 254. The Governor v. Hector, 10 
 
MABSIAOE OF INFANTS. 129 
 
 BJwmph. R. 61.) This rule, originally ingrafted into the common from 
 the civil law (1 Bl. Com. 436 ; MaP.onlnf. 168, 169), is undoubt- 
 edly an exception to the general principles regulating the contracts 
 of infants ; and might, at first, seem to disregard the protection 
 and restraint with which the law seeks to surround and guard the 
 inexperience and imprudence of infancy. But in regulating 
 the intercourse of the sexes, by giving its highest sanctions to the 
 contract of marriage, and rendering it, as far as possible,' inviolable, 
 the law looks beyond the welfare of the individual and a class, to 
 the general interests of society; and seeks, in the exercise of a 
 wise and sound policy, to chasten and refine this intercourse, and 
 to guard against the manifold evils which would result from illicit 
 cohabitation. "With this view, in order to prevent fraudulent 
 marriages, seduction and illegitimacy, the common law has fixed 
 that period in life when the sexual passions are usually first devel- 
 oped as the one when infants are deemed to be of the age of consent 
 and capable of entering into the contract of marriage. Biit it is 
 urged that "this rule of law is not in force in this commonwealth, 
 because, by our statute, ministers of the gospel and magistrates 
 have always been prohibited, under a heavy penalty, from solemniz- 
 ing marriages of males under twenty -one years of age, and 
 of females imder eighteen years of age, without the consent of their 
 parents or guardians. {Stat. 7 Wm. Ane. Chart. 285. Stat. 1786, 
 ch. 3, §§ 3, 5. lb. 1834, ch. 177, §§ 2, 4. B.S. ch. 75> §§ 15, 19, 
 Stat. 1853, ch. 335, § 1.) But the efiect of these and similar 
 statutes is not to render such marriages, when duly solemnized, 
 void; although the statute provisions have not been complied with. 
 They are intended as directory only upon ministers and magistrates, 
 and to prevent, as far as possible, by penalties on them, the solemni- 
 zation of marriages when prescribed conditions and formalities 
 have not been fulfilled. But in the absence of any provision 
 declaring marriages not celebrated in a prescribed manner, as 
 between parties of certain ages, absolutely void, it is held that all 
 marriages, regularly made according to the common law, are valid 
 and binding, although had in violation of the specific regulations 
 imposed by statute. (2 Xmf « <7om.90, 91. 2 Oreenl.Eo.%4,QO. Mil- 
 ford V. Worcester, 7 Mass. S. 48. Londonderry v. Chester, '^W.S. 
 R. 268. Eamtz v. Sealy, 6 Bmn. R. 405.)" {Parton v. Hervey, 1 
 Cray's B. 119.) This elaborate and lucid opinion of the court is 
 not only interesting as settling the law of the case, but as giving the 
 17 
 
130 L-A-W OF INFANCY. 
 
 reasons why an executed contract of an infant is binding, while most 
 others of his contracts may be avoided. 
 
 The law, generally speaking, recognizes any mamage which is 
 valid in the country in which it is celebrated, though contrary to 
 the law of the place where the parties may subsequently reside. 
 {Dalrymple v. JDakymple, 2 Hagg. Cons. R. 54. Ex pa/rte JIall, 1 
 Vesey (& B^ame^s B. 111.) But a marriage in one state in viola- 
 tion of the laws of another will not have the eifect to emancipate 
 the minor party to such marriage in the latter state. {Bahier v. 
 Le Blanc, 12 La. An. B. 367. Vide, also, Clement v. Wafer, lb. 
 599.) In England, a marriage was pronounced null on the ground 
 of force and custody, having been celebrated between a girl aged 
 only twelve years and a half and one of her testamentary guard- 
 ians, who had taken her from school and carried her abroad for the 
 purpose without any constraint. {Ha/rford v. Morris, 2 Sagg. Cons. 
 B. 423.) 
 
 § 84. The age of consent for minors who are illegitimate is the 
 same as for those born in lawful wedlock, and all of the rules 
 applicable are the same iti both cases. 
 
 Mr. McPherson, in his work on infants, has an interesting chapter 
 upon the subject of mamage' of infants, but the most of it is occu- 
 pied with a statement of the law as established by the statutes of 
 England, and which has little or no application to the subject in 
 this country. The substance of what he' says of a general appli- 
 cation is the following : The age of consent to marriage is fourteen 
 in males and twelve in females. If a boy under fourteen, or a girl 
 under twelve, years of age marries, this marriage is only inchoate 
 and imperfect ; and if either party be under seven yeai-s of age it 
 is absolutely void. "When the marriage is inchoate, when either 
 of the parties comes to the age of consent they may disagree and 
 declare the marriage void, without any divorce or sentence of 
 court. This is founded on the civil law. But the canon law 
 pays a greater regard to the constitution than to the age of the 
 parties, for if they are habiles ad matrimonium — fit for marriage, it 
 is a" good marriage, whatever their age may be ; and by the common 
 law, it is BO far a marriage that if, at the age of consent, they agree 
 to continue together, they need not be married again. This is the 
 rule, as a general thing, in most of the American States, and in 
 some of them the marriage is considered valid until it is dissolved 
 by the decree of a competent court. If the husband be of years of 
 
MARRIAGE OF INFANTS. 131 
 
 discretion and the wife nnder twelve, when she comes to years 
 of discretion he may disagree as well as she may ; and so it is 
 vice versa when the wife is of years of discretion and the husband 
 nnder ; the contract being of such a nature as necessarily to imply 
 a right to dissent at the age when the reason is capable of being 
 exercised. By the common law, if the parties themselves are of 
 the age of consent, no other concurrence was necessary to make the 
 marriage valid ; and this was agreeable to the canon law, although, 
 both by that and by the civil law, the consent of parents was 
 requisite for a perfectly regular and solemn marriage. {MoPherson 
 on Infants, 168.) 
 
 § 85. By the old feudal law of England a minor could do homage, 
 which was the submission and service which was usually promised 
 by the vassal or tenant to his lord or superior upon being admitted 
 to the possession of the land which he held in fee, or the ceremony 
 performed in making the submission by the tenant on being 
 invested with the fee. The ceremony was performed by the tenant 
 openly and humbly kneeling, being ungirt, uncovered, and holding 
 up his hands both together between those of the lord, who sat 
 before him, and then professed that " he did become his man, from 
 that day forth, of hfe and limb and earthly honor," iand then 
 received a kiss from his lord." {^ Black. Com. ^Z.) This homage 
 was properly an incident to tenure by knight's service only, and of 
 course has never obtained in this country. In England, however, it 
 was regarded of considerable importance, and while it continued it 
 was not a mere ceremony ; for the performance of homage, when 
 it was due, materially concerned both lord and tenant in point of 
 interest and advantage. To the lord it was of consequence because, 
 till he had received homage from the heir, he was not entitled to 
 the wardship of him and of his land, unless the lord had the 
 seigniory or manor for life or years only, in which case he could 
 not take homage, and therefore was allowed wardship without the 
 previous acts. To the tenants the homage was scarce of less 
 importance, for anciently every kind of homage, when received, but 
 not before, bound the lord to keep the tenant from every molestation 
 for services due to the lord paramount, and to defend his title to the 
 land against all others. (2 Blach. Com. note 9.) This was the pre- 
 fession and promise which a minor had the power to make, under the 
 feudal law, which formerly prevailed in England, and the influence 
 of which upon her landed estates is not lost at the present day. 
 
132 LAW OF INFANCY. 
 
 § 86. We have seen that males at fourteen, and females at 
 twelve, may, at common law; make a valid testament of personal 
 property, although the age of competency is generally fixed hy 
 statute, the provisions of which in the several states have been 
 hereinbefore given. {Ante, § 7.) It has been considered not quite 
 certain as to what is the common rule upon this subject, although 
 the weight of opinion is in accordance with the age abbve given. 
 Lork Coke stated the age to be eighteen, while other writers men- 
 tion seventeen to be the age, because that is the age at which an 
 administration, during the minority of an executor, determines. 
 According to others, fifteen is the age for males, if the party can 
 be proved of suflScient discretion ; but this opinion seems to have 
 been based upon nothing more than some loose dictum to be found 
 in an early report, and has never commanded any particular 
 respect. {Bmg. on Inf. 17.) By the Roman law the testamentary 
 power was recognized in males at fourteen, and in females at 
 twelve, and, until the matter was fixed by statute, the civilians 
 agreed that the English ecclesiastical courts followed the same 
 rule. Mr. Bingham concludes what he has to say upon this point, 
 by asserting that on the one hand the rule of the ecclesiastical 
 courts, in holding twelve and fourteen to be the ages at which males 
 and females, according to the difiPerence of sex, first have the power 
 of making wills of personalty, seems now well established ; so, on 
 the other hand, that it is in some degree consonant to the doctrine 
 of the English common law, for though that it is silent as to the 
 age for wills of personalty, these being the subject of a different 
 law, yet it adopts the same standard of twelve and fourteen for 
 other purposes, and so far deems them the ages of discretion as to 
 give infants of those ages the power of choosing guardians, and 
 to presume that they are, doU capaoes — capable of mischief, in 
 respect to crimes. {Bing. on Inf. T9.) 
 
 In a case in the Supreme Judicial Court of Massachusetts, in 
 which the will of a male infant was involved, Parker, Ch. J., 
 in delivering the opinion, said : " That an infant of fourteen years 
 and upward is capable of disposing of his personal estate by will, 
 seems to be well settled at common law." {Decme v. LitUefiM, 1 
 Pick. B. 239, 243.) 
 
 § 87. In England, if an infant levies a fine, he is enabled to 
 declare the uses thereof, and if he does not reverse the fine during his 
 nonage, the declaration of uses wiU stand good forever; for though 
 
JOINTURES OF INFANTS. 133 
 
 that be in pcds, and all such acts an infant may avoid at any time 
 after his fall age, if he do not consent, yet being made in pursu- 
 ance of the fine levied, which fine must stand good forever, unless 
 reversed, so will the declaration of uses also stand. {Bmg. on Inf. 
 80.) But the sealing of advantageous marriage articles by an 
 infant jointly with his father, is not sufficient to declare the uses of 
 a fine and recovery which he sufiers after age, jointly with his father. 
 {Bvng. on Inf. 80.) Alienation, by matter of record, as by fines and 
 recoveries, occupies a prominent place in the English Code, but 
 the practice is very little known in this country. This rule respect- 
 ing infants, therefore, is not very important with us, except in those 
 states where the doctrine of uses still exists as a modification of 
 the common law ; and even in England, fines and recoveries are 
 now swept away by statute, so that the rule will soon cease to be 
 of particular interest there. (3 and 4 Wm. IV, ch. 74.) 
 
 § 88. The question, whether an infant was barred by a jointure 
 made before marriage, was for a long time unsjettled in England. 
 In consequence of the capacity of infants to contract marriage 
 their marriage settlements, when reasonable, were held valid in 
 chancery ; but it was unsettled whether a female infant could bind 
 her real estate by a settlement upon marriagOj even after the enact 
 ment of the statute of 21 Sen. VIII, introducing jointures, until 
 the decision of a celebrated case in the House of Lords, when the 
 great question was finally settled in favor of the capacity of the 
 female infant to bar herself of her right of dower in her husband's 
 land, and to her distributive share of her husband's personal estate, 
 by her contract before marriage. {Drv/ry v. Drurif, gi/oen m 2 
 Mdio. Ch. B. 60.) And in another case in chancery, decided before 
 Drury^ v. Drwry, Lord Chancellor Hardwicke laid down a similar 
 rule, saying that marriage agreements differ from all other agree- 
 ments of infants. " The principal contract is the marriage, and an 
 infant female may contract at the age of twelve. AH other parts 
 . of the contract are collateral incidents, entered into to secure some 
 provisions for the party marrying and the issue, and may be greater 
 or less, according to circumstances. As soon as the marriage takes 
 place, the principal contract is executed, cannot be set aside 
 or rescinded ; " therefore the court will take care how they " break 
 in upon settlements made upon the marriage of infants." And 
 further on, his lordship feays : " But if this court should interpose 
 to set aside, or give relief against any part of a marriage settlement, 
 
134 LAW OF INFANCY. 
 
 it must relieve against and avoid the whole, for every part makes 
 the consideration of the whole of everything ; and it is impossible, 
 where there is no fraud, to say this fact, is unreasonable ; you have 
 gained too much on one side, and therefore that shall be deducted. 
 This makes it a different bargain, and, in consequence, the uses of 
 the estate must be broken in upon on the other side." {Ea/roey v. 
 Ashley, 3 Ath. B. 607, puhUshed in 8 Wend. B. 331.) And in still 
 another case. Lord Kyder represents Lord Chancellor Hardwicke as 
 saying, " it was clear in law that if a man married, and before 
 marriage, in consideration of it and of her portion, makes a jointure 
 on his wife, though she was an infant, she cannot waive her jointure 
 and set up her dower." (Price v. Seys, Barna/rd's Ch. Ca. 117, cited 
 m Drury v. Drury, cmd published m 8 Wend. H. 331.) These 
 cases left open the question, whether an infant female could bind 
 her own real estate by a marriage settlement, and Lord Eldon, in a 
 subsequent case, held that a female infant cannot bind her real 
 estate by a settlement on marriage so but that she may disaffirm it ; 
 and in a recent case it was expressly held that no valid settlement 
 of a female infant's real estate could be made upon her marriage, 
 by virtue of any agreement by her or her parents or guardian, or 
 by the authority of the court. {Fields. Moore, 35 Eng. L. & Eq.. 
 B. 498. Vide, also, MiVner v. Lord Harwood, 18 Yesey's E. 259.) 
 And such is now the well settled law in England. 
 
 Other decisions have been considered as favorable to the power 
 of male infants to settle their real estate upon marriage, and Mr. 
 Atherly advances the same opinion. {Aiherly on Mamage iSetUe- 
 ments, 42-45.) Chancellor Kent, however, thinks this conclusion 
 questionable in the light of the decision of Lord Eldon, in Milner 
 V. Lord Sarwood, and submits the very pertinent question, "If a 
 female infant cannot settle her real estate without leaving with 
 her the option, when twenty-one, to revoke it, why should not the 
 male infant have the same option?" (2 Kenfs Com. 258.) The 
 doctrine now held in England upon the subject seems to be estab- 
 lished in New York, Pennsylvania, Virginia, and perhaps others 
 of the American States. {Temple v. Hamley, 1 Sandf. Ch. B. 153. 
 Shaw V. Boyd, 6 Berg, ds Bawls' s B. 312. Wilson v. MoCuUouo\ 
 7 Harris' B. 77. Lee v. Stewart, Leigh's B. 76.) The settlement, 
 however, would pass the estate of the infant, and would be valid 
 until avoided. A female infant can affirm such settlement during 
 her coverture, and she may disaffirm it after she attains her major- 
 
JOINTURES OF INFANTS. 135 
 
 ity if she is then a widow. It is a vexed question whether she can 
 avoid it during coverture. {Temple ^.Hcmley, 1 Sandf. Ch. R. 153.) 
 
 In one case, in the State of Yirginia, the point was settled that 
 "infants may contract by marriage articles or settlements before 
 mamage, and such contracts will bind them when of full age." 
 {Treble v. Archer, 3 Hm,. c& Munf. B. 399.) And in a still later 
 case the court of appeals of that state re-affirmed the doctrine, say- 
 ing that " the court perceive nothing to disapprove in the case." 
 {Healey v. Bowen, 5 Grattan's B. 414.) The settlement may either 
 be of the wife's fortune, or of some proper equivalent ; and if it is 
 a settlement of the husband's estate, the matter will require evi- 
 dence of the sufficiency of the title and of the nature of the estate. 
 {McPherson on Inf. 558.) 
 
 § 89. In many of the American States the subject of jointure is 
 regulated by express statute. Thus, in the State of New York 
 a conveyance of lands for the .purpose of creating a jointure for 
 an intended wife, in order to bar her claim or right of dower 
 in the lands of her husband, must be made with the assent of the 
 wife evidenced, if she be of full age, by her becoming a party to 
 the conveyance ; or, if she be ah infant, by her joining with her 
 father or guardian in such conveyance. (1 B. 8. pari 2, ch. 1, tit. 
 3, §§ 9, 10, 11. 1 Stat, at Large, 692.) Previous to the statute a 
 competent and certain provision settled upon the female infant 
 before marriage, by way of jointure, to which there was no other 
 objection but its mere equitable quality was an equitable bar of 
 dower. But the statute has done away with the distinction between 
 legal and equitable jointures ; and any estate or pecuniary pro- 
 vision made for the benefit of the wife in that state, whether an 
 adult or an infant, in lieu of dower, will, if assented to by her in 
 the manner prescribed by statute, constitute a legal bar of her 
 dower. {McCarUr v. TeUer, 2 Paige's B. 511. S. G. 8 Wend. B. 267.) 
 And the "act for the more efi'ectual protection of the property 
 of married women," passed in 1849, expressly declares that " all 
 contracts made between persona in contemplation of marriage 
 shall remain in full force after such raarriage takes place." 
 {Laws 1849, ch. 375, § 3.) This provision would seem to render 
 vahd and effectual all contracts and conveyances made in con- 
 sideration of marriage, both of infants and adults, and in relation to 
 real as well as personal estate. ( Vide Wetmore v. Kissa/m, 3 Bos- 
 wortKsB. 321.) 
 
136 LAW OF INFANOT. 
 
 § 90. A male infant may undoubtedly bar himself by agreement 
 before marriage, either of his estate by the ciirtesy or of his right to 
 his wife's personal property. He may consent to a settlement made 
 by his wife of her own land, and should he, by settlement on the 
 marriage, covenant that her estate should be settled to certain uses, 
 or should he assent to such covenant on the part of his wife, who is 
 an adult at the time of her marriage, he will be bound by the 
 covenant. {Sloamibe v. GIaM, 2 Bro. Ch. B. 545. 2 Kent Com. 
 258.) It is thought tha,t personal property may unquestionably be 
 bound by such settlements on the part of both male and female. 
 {Ih. and Harvey v. Ashley, 3 Atk. JR. 613.) 
 
 All marriage settlements, in order to be binding upon a female 
 infant especially, must be fair and reasonable, and not tend to 
 deprive her of every thing. ( Williams v. WiUiamis, 1 Bro. Ch. R. 
 152. Vide also DurnfordY. Lame, Ih.lQQ. OanfuthersY.Caruthers,i 
 ib. 500.) But the infant wife will be bound by the marriage contract 
 if she accept of him money, or if after her husband's death she 
 accepts of a jointure under the statute. {Smith, v. Low, 1 Ath R. 
 489.) And in Virginia it has been held that infants may contract 
 by marriage articles oir settlements, and that such contracts will 
 bind them when of full age ; provided that the settlement be made 
 through the father or guardian of the infant. The court held 
 further that the law had intrusted the father or guardian with the 
 marriage of infant children or wards, and this doctrine may affect 
 the rule of marriage settlements somewhat in that State. {TM v. 
 Archer, 3 Hen. da Munf. B. 400.) 
 
 An objection to the validity of a marriage settlement, on the 
 ground that the parties to it are infants, can only be made by 
 the parties themselves. At most, it is only voidable, and unless the 
 parties, within a reasonable times after coming of age, seek to avoid 
 it, they will be considered as ratifying it. {Jones v. BuUer, 30 
 Barb.B.&il) 
 
 § 91. Questions frequently arise, especially in England, respecting 
 settlements on the marriage of wards of court, though such ques- 
 tions have usually arisen in the case of female wards ; and Mr. 
 McPherson considers it almost impossible to deduce from the 
 decided cases any general conclusions as to what the court may 
 in any particular instance hold to be a proper settlement. {McP. 
 on Inf. 201.) It seems, however, that settlements made under the 
 sanction of the court take effect, like other marriage settlements of 
 
JOINTURES OF.IJVIANTS. 137 
 
 infants, only as contracts of the adult party, and that their pro- 
 visions do not derive from the approval of the court any authority 
 or force which does not belong to them by the general rules of law. 
 {MoP. on Inf. 202.) 
 
 Upon the maniage of two infants, one being a ward of court, 
 the court has no power to compel a settlement to be made by either 
 of them during minority, not even of the personal, estate of the 
 infant ward. {Field y. More, 35 JEng. L. c& Eq. R. 498.) 
 
 When a female ward of court marries a man who has property 
 of his own to settle, the court, whether there has been contempt Or 
 not, will not allow the wife's fortune to be tied up for the children 
 of that marriage, but will take care to enable her to provide for a 
 future marriage ; and it is not sufficient, it seems, that the settle- 
 ment should contain powers for the wife to provide for a second 
 husband and children out of her real estate, because she may lose her 
 husband and marry again before she attains full age, and she cannot 
 execute powers over her real estate during infancy. ( Well& v. 
 Price, 5 Vesey's B. 398. Halsey v. Halsey, 9 ib. 4Y1. Hearle 
 V. Oreenbcmk, 1 il. 298, died m MoP. on Inf. 202.) If a female 
 ward of court is married without the consent of the court, the 
 court will compel the husband, by process of contempt, to make 
 a proper settlement ; and in such cases, the intertJst which the hus- 
 band will be allowed to take in the wife's property rests entirely in 
 the discretion of the court. {JStevens v. Savage, 1 Yes. Jr. R. 154. 
 Ball V. Coutts, 1 Ves. c& Beame's R. 300, 303.) 
 
 In one case, where a female ward had been induced, at the age 
 of sixteen, to go through a form of marriage with a person of low 
 condition, which was afterward regularly solemnized. Lord Eldon, 
 under the conviction that there could not be much expectation of 
 happiness when the husband had nothing and the wife had the 
 whole control ovdi" the property, directed a moderate settlement to 
 the husband during coverture, and left the wife to control the 
 balance of the property. {BatJmrst v. Mwrray, 8 Yes. B. 74.) 
 This same doctrine with respect to the marriage of wards of court, 
 seems to be recognized to the fullest extent in the American States^ 
 In a case in the late court of chancery of the State of New York, 
 the chancellor (Walworth) goes on to show that there is a class of 
 cases in which the court may interfere in behalf of the wife or her 
 children, and take from the husband, not only the property in action 
 which he has acquired by the marriage, but also that which he has 
 18 
 
138 LAW OF INFANCY. 
 
 reduced to possession, for the purpose of receiving a suitable pro- 
 vision for the wife herself, and also for the issue of the marriage. 
 " But," he remarks, " there are cases where the husband has married 
 a ward in cliancery without the consent of those who by law are 
 intrusted with the protection of her property and rights. In such 
 cases, as the husband is guilty of contempt, and as the whole 
 property of the infant feme-covert is under the special protection 
 of the court, the court itself, even without the consent of the wife, 
 may, upon the application of any of her friends in her behalf, 
 restrain the husband and his creditors from intermeddling with her 
 estate until a proper settlement is made for the benefit of the wife 
 and the issue of the marriage." ( Vcm Duzer v. Yan Duser, 6 
 Paige's B. 366, 369.) 
 
 A ward of chancery is a person who is under a guardian appointed 
 by the court of chancery, or a court having equity powers. Judge 
 Story says, "No person is permitted to marry a ward of court 
 without the express sanction of the comrt, even vpith the consent of 
 the guardian. If a man should marry a female ward without the 
 consent and approbation of the court, he and all others concerned 
 in aiding and abetting the act will be treated as guilty of a contempt 
 of the court; and the husband himself, even though he were 
 ignorant that she was a ward of the court, will still be deemed 
 guilty of a contempt." (2 Sto. Eq. Jur. § 1358.) 
 
 § 92. When an infant has no testamentary guardian, at common 
 law he has the power at the age of fourteen to name his guardian 
 to the court, and unless there appears to be some objection to the 
 person named, he will be appointed. The competent age of the 
 infant for choosing a guardian, however, is usually fixed by statute, 
 and in post of the American States fom-teen is the age fixed for 
 males, and when there is a difference made between the age of 
 the sexes in this respect it is of twelve in females. Infants, both 
 male and female, may choose their guardians at the age of fourteen 
 in the State of New York (2 E. 8. part 2, ch. 8, tit. 3, § 4 ; 2 Stat, at. 
 Large, 157), and in the State of Massachusetts {Gen. Stat. ch. 109^ 
 § 3), Khode Island {R. S. 1857, ch. 138, § 4), Indiana ( 2 R. S 1862, 
 ch. 4.), Michigan (2 Gomp. L. ch. 110), Wisconsin {R. S. ch. 112), 
 Nebraska {R. S. ch. 22, § 3), Oregon {Gen. Laws 1864, ch 12, § 5), 
 Texas ( Oldham <& White's Dig. arts. 951, 952 ), and probably in 
 many others. In Vermont it is provided tliat the father, if living, 
 and if dead the mother remaining unmarried, shall be the guardian 
 
BINDING ACTS OF INFANTS. 139 
 
 of their miuor children ; and that the ihother of illegitimates, while 
 unmarried, shall be guardian of her minor children for all purposes 
 until another shall be appointed. {E. S. 1863, ch. 12, §§ 2, 3.) 
 
 An infant father may generally appoint a guardian for his chil- 
 dren by deed or by his last will and testament, though in England 
 they have a statute which has taken away from an infant father, 
 the power to appoint a testamentary guardian (1 Viot. ch. 26) ; and 
 perhaps this statute has been copied into the laws of some of the 
 American States. But the statutes of New York, New Jersey, 
 Pennsylvania, Ohio, Alabama, and probably most of the other 
 states of the Union, allow a father, being a minor, to appoint a tes- 
 tamentary guardian for his infant children, who will have all the 
 powers of a guardian in common socage. (2 KenCs Com. 231, note 
 i.) In the State of New York, however, no man can create any 
 testamentary guardian for any children, unless the mother, if 
 living, signify her assent thereto in writing. {Lams 1862, ch. 172 
 § 6.) In the State of Tennessee it is expressly provided by statute 
 that a father under age may dispose of the cus^dy of his children. 
 {Code of 1858, § 2492.) In the State of Maryland the mothei 
 may appoint a guardian by will for her infant children. (1 Code^ 
 art. 93.) 
 
 CHAPTER IX. 
 
 or rSTFASTS' COIJTEAOTS WHICH THE LAW EEQUIEES ENLISTMENTS IN 
 
 THE AEMT AND NAVY INDENTIIEES OF APPEENMCESHIP — EXECU- 
 TION "OF TBUSTS. 
 
 § 93. As a general rule, whatever an infant is bound to do by 
 law, the same will bind him though he do it without a suit at law. 
 For example, after an order of filiation an infant is bound by law 
 to support his illegitimate child, and it is held in such a case that 
 his promise to pay for necessaries furnished to the child would be 
 valid. The statutes of New York and of several others of the 
 states, oblige the putative father of a bastard child to indemnify 
 the city, town or county against the expenses of supporting such 
 illegitimate child, and makes it necessary for him to enter into 
 bonds, with sureties, for that purpose, as the only means by which 
 he can obtain a discharge from arrest ; and it is held that under 
 
140 LAW OF INFANGY. 
 
 tihose Btatntes an infant putative father has a legal capacity to 
 make a binding obligation in such- a case. {The People v. Moqres, 
 4 Demons R. 518.) So, also, in the State of New York, an infent 
 imprisoned on an execution in a civil suit, is entitled to a discharge 
 from imprisonment on assigning his property in compliance with 
 the provisions of the statute ; and in such a case his assignment 
 would be valid, notwithstanding his nonage, and could not be 
 avoided. {The People v. MuUm, 25 Wend. P. 698.) And in a 
 case in Massachusetts, Parsons, Ch. J., said, infants are bound by 
 all acts which they are obliged by law to do. {Baker v. Zovett, 6 
 Mass. P. 80.) And in a stiU. later case in the same state, the court 
 held, that, inasmuch as the Massachusetts bastardy act requires that 
 the party accused of being the father of a bastard child, shall give 
 a bond, with sureties, infancy is no defense, either for the infant or 
 his sureties, to an action on such bond. {McCaU v. Par^ker, 13 
 Mete. P. 3Y2.) 
 
 Lord Mansfield, over a hundred years ago, laid down the rule, 
 that if an infant ^es a right act which he ought to do, which he 
 was compellable to do, it will bind him ; and said that " there is no 
 occasion to enumerate instances ; the authorities are ei^ress, and 
 the reason decisive. Generally, whatsoever an infant is bound to 
 do by law, the same shall bind him, albeit he doth it without suit 
 of law." {Zouch V. Parsons, 3 Burr. P. 1801.) 
 
 A promissory note given by the putative father of an illegitimate 
 child, in the State of Indiana, on a settlement with the mother, is 
 valid, and cannot be. defeated by the plea of infancy. {Garvin v. 
 Boston, 8 Ind. P. 69.) All acts of necessity perforined by an 
 infant, whatever they be, are binding and cannot be avoided. 
 {Stephe7is^ JVtsi Prius, 2049.) 
 
 § 94. An infant is bound by any act which the court would 
 require him to perform. If a father buy land, and take a deed for 
 it in the name of his infant son, for the purpose of defraiiding his 
 ci-editors, and afterward sell the land to an ionocrait purchaser 
 for a valuable consideration, and the infant, at the request of his 
 father, convey the legal title to the purchaser, he cannot avoid the 
 deed after he becomes of age, for the reason that he has only 
 the naked title, by the fraudulent act of his father, and no rights 
 against a creditor or purchaser, and therefore when he conveys, he 
 merely parts with the naked title, and only does what a court of 
 equity will compel him to do. {EUiot v. Hem, 10 Ala. P. 348, 353.) 
 
BINDINO ACTS OF INFANTS. 141 
 
 In the state of Virginia, when an infant ia bound to renew any 
 lease, it is provided by statute that the person interested may make 
 him do it by petition to the circuit court or the court of chancery. 
 {Code of 1849, ch. 36, § 1.) "Where the court directs an infant to 
 convey real estate in performance of an agreement entered into by 
 the ancestor in his life-time, and such infant releases and conveys 
 the title whereof the ancestor died seised, he cannot repudiate his 
 deed on coming of age. {Matter of Ellison, 5 Johns. Gh. JR. 261.) 
 However, when the infant is ordered to convey, in such a case the 
 conveyance should be executed and delivered for him by the 
 guardian ad litem { Van Sohaich v, Sivyvesant, 2 JEdw. Ch. B. 204) ; 
 and the conveyance must conform to the order of the court directing 
 such conveyance in performance of the contract of the ancestor. 
 {Syatt V. Seeley, 11 If. Y. B. 62.) 
 
 An infant who receives property under a contract of sale to him 
 and then surrenders it to the seller, intending to give up all his 
 interest in it, cannot afterward avoid such sm-render and retake the 
 property from the possession of the seller. He is bound by his act 
 of surrender as absolutely as though he were an adult. The sale 
 to the infant would be voidable by him and his surrender of the 
 property would be an act of avoidance,'and would invest the rights 
 of the vendor in him, and the infant would thereby cease to have 
 any right over the property. {Edgerton v. Wolf, 6 Cray's B. 453.) 
 
 Lord Mansfield laid down the rule, as collected from the books 
 in his day, " that the acts of an infant which do not touch his 
 interest, but take effect from an authority which he is trusted to 
 exercise, are binding; " and he, therefore, held that the conveyance 
 of an infant mortgagee is binding from the fact that conveying is 
 no more than delivering up a security when it is satisfied. {Zouoh 
 V. Parsons, 3 Bwrr. B. 1794, 1802.) And generally speaking, it 
 may be averred that an infant at common law may do acts in 
 which he is a "mere instrument or conduit pipe," and in which his 
 interest is not concerned. {Searle v. Greenbamk, 3 Ath. B. 710.) 
 Upon this principle he may execute a power simply collateral, 
 though he cannot execute a power over property of any kind 
 which is not simply collateral. Hea/rle v. Greenianh, 3 Aik. B. 
 695.) 
 
 "Where a statute declares the effect of any particular proceeding, 
 and makes no exception, the court can make none on the ground 
 of any inherent equity applicable to infants. {Dema/rest v. TFyra- 
 
142 LAW OF INFANCY. 
 
 coop, 3 Johns. Ch. R. 138, 14Y.) In the construction of statutes as 
 applicable to these cases, the only inference to be drawn from the 
 authorities is, that when the words of a law, in their common and 
 ordinary signification, are sufficient to include infants, the virtual 
 exception must be drawn from the intention of the legislature, 
 manifested by other parts of the law, from the general purpose and 
 design of the law, and from the subject-matter. {Ea/rl qfBitcMng- 
 haTnshire v. Drury, Wilmot's Notes 194.) 
 
 § 95. As has been before stated, the rule is that whatever the 
 law requires an infant to do he may do, and his act will absolutely 
 bind him. On this subject. Professor Parsons says, that there is no 
 principle of law placing infants on the same footing as other persons 
 whenever they enter into contracts which owe their validity and 
 the means of their enforcement to statutes ; and, further, that in all 
 statutes containing general words there is an implied or virtual 
 exception in favor of persons whose disability the common law 
 recognizes. (1 Parsons on Oon. 282, referring to the Northwestern 
 Railway v. McMichael, 6 Exch. R. 124.) 
 
 In a case in the court of queen's bench, two of the judges — ^Lord 
 Denman and Patteson, J. — expressed the opinion that when, by a 
 statute, a shareholder in an incorporated company is liable to the 
 company for calls in his character of shareholder, the fact of infancy 
 will make no diflference. {Corh and Bandon Railway v. Cazen- 
 ove, 10 Q. B. R. 935.) But the court of exchequer (in the case of 
 the Northwestern Railway v. MoMichad, supra) refused assent to 
 the doctrine. This, however, does not at all conflict with the rule 
 that when a statute requires certain specified parties to enter into 
 a given obligation, without any exception, infants are included, 
 and their acts cannot' be avoided. 
 
 § 96. Another class of binding contracts made by infants com- 
 prises those iflade in compliance with a statute authorizing them to 
 make contracts for the public service. For example, the statute 
 authorizes an infant of a certain age to enlist in the army or navy, 
 and such a contract is neither void nor voidable. (Story on Oon. 
 § 13. United States v. Bainhridge, 1 Mason's R. 71. Gommmr 
 wealth V. Harrison, 11 Mass. B. 65. Commonwealth v. Gushing, 
 lb. 71. Commonwealth v. Murray, 4 Binn. R. 487.) 
 
 In the State of Pennsylvania it has been held that such an 
 enlistment is binding at common law. {Commonwealth v. Jcmile, 
 1 Serg. do RawUs R. 93.) By the law of Congress and the statutes 
 
BINBINO ACTS OF INFANTS. 143 
 
 of most of the States, tlje consent of the parent or guardian ia 
 necessary in order to the validity of the enlistinent, and if such 
 consent he no15 obtained the minor maybe discharged by State 
 authority. {Matter of Carlton, 7 Cow. R. 471. State v. Dimich, 
 12 N. E. E. 194. Gommomjoealth v. Callcm, 6 Bmn. B. 256. 
 United States v. Anderson, CooMs [Tenn.] R. 143.) But the con- 
 sent, however, need not be obtained hefore the enlistment. {Com- 
 monwealth V. Carnao, 1 Serg. & Bowie's R. 87.) 
 
 In Maine and Massachusetts the enlistment of an infant over 
 eighteen years of age into a volunteer company is ijpither void nor 
 voidable, although made without the consent of parent or guardian. 
 {Stevens v. loss, 18 Maine R. 19. Porter v. Sherlum^, 21 ih. 
 258. Commonwealth v. Frost, 13 Mass. R. 491. Beway, Petitioner, 
 11 Pick. R. 265.) And in such case the infant would be liable on 
 a prosecution, crimmaUter, for neglect of duty. {Winslow v. 
 Anderson, 4 Mass. R. 376. Stevens v. Foss, supra. Porter v. 
 Sherburne, swpra.) 
 
 By the statute of New York it is declared that no person under 
 the age of twenty-one years shall enlist in or join any uniform 
 troop or company without the consent of his parent or guardian 
 master or mistress. {La/ws of 1862, ch. 477, § 33.) An enlistment 
 contrary to this statute would be void. An agreement of an infant 
 under the age requisite for enrollment into the militia to go as a 
 substitute for another into actual service, is not binding, even 
 though made with the consent of his father, and although the 
 consideration be fiiUy paid. {Grace v. Wilber, 10 Joh/ns. R. 453.) 
 The rule would be different when there is a statute specially provid- 
 ing for the engagement to serve as a substitute, as there was with 
 reference to service in the late war of the rebellion in the United 
 States. If the statute authorize the employment of siibstitutes 
 under age, then, of course, the engagement of a substitute. would 
 be binding on the infant the same as in the case of an original 
 enlistment. But when a minor is held to service in the army or 
 navy by force of a statute. Professor Parsons states, upon authoi'ity, 
 that it is not the contract of enlistment which binds hira, but the 
 statutory duty. "In all cases," he adds, "the only criterion is, 
 whether the likbility is derived from the contract. If it be derived 
 from contract, the common law exceptions apply to it; otherwise 
 not." {Parsons on Con. 281, dimg United States v. Rainhridge, 1 
 Mason's R. 71, amd Parke, B. Newry S Ennishillen Rail/way v. 
 
144 LAW OF INVANCT, 
 
 Coomle, 3 Ecch. B. 569.) But however this may be, perhaps, is 
 not very material. It is only important to show that minors are 
 bound by such engagements. 
 
 § 97. Another act of an infant which he may not repudiate is his 
 engagement to serve as an apprentice to learn some art or trade 
 with the consent of his parents or guardian, or other person pro- 
 vided by statute. This act, being manifestly for the benefit of the 
 infant, he is competent to perform, and the relation of master and 
 apprentice, created by the indenture to which he is a party, cannot 
 be dissolved by, the infant. {Eex v. Oreat Wigston, 10 Mig. G. L. 
 R. 161. Kmg v. Amesh/, 6 ib. 385. 10 Meea. <& Wels. R. 195. 
 Woodruff -v. Logcm,! EngUsKs [Ark.'} R. 276. 
 
 Formerly, if not at present, by the custom of London in Eugland, 
 an infant unmarried and above the age of fourteen, could bind 
 himself apprentice to a freeman of London, by indenture, with 
 proper covenants, and the same was as binding as though the party 
 had been of full age, and for a breach of the covenants contained 
 in the indenture an action could be brought in any other court as 
 well as in the courts of the city. {Bing. on Inf. 90, per o^pmion 
 of Lord Eldon. Bramd v. TFe55, 2 Bos. <& JPuU. R. 96.) 
 
 The father or parent at common law might bind his infant an 
 apprentice without the infant joining in the articles ; but, as a 
 general rule, both in England and in this country, the matter of 
 master and apprentice is governed by statute, and, in all such cases, 
 the statute is considered as controlling the common law. {Matter 
 of MoDowles, 8 J. R. 331.) It has been held in one case in Mas- 
 sachusetts, that the father may, at common law, bind his infant 
 son to service independent of a statute. (Day v. Everett, 7. Mass. 
 R. 145.), But this doctrine is contrary to the rule in England, and 
 to the construction given to the statutes of several of the American 
 States. The rule, as laid down in England, is, that infants of 
 either sex may be bound by indenture executed by themselves and 
 not otherwise, as apprentices to any person, to an infant even, for 
 any number of years, but the indentures are voidable by the infants 
 at twenty-one, and will be held to be avoided by a proper and 
 deliberate announcement to that effect. {MoPherson on Inf. 479. 
 Rex V. St. Petrex, 4 T. R. 196. Ex parte Davis, 6 ib. 715.) 
 
 § 98. The origin of the English law of apprenticeship, as given 
 by Professor Parsons, is interesting and worthy to be noted. It 
 seems that the law grew out of and rested upon the ancient estab- 
 
BINDING ACTS OF INFANTS. 145 
 
 lisliment of guilds or companies for trade or handicraft, -which were 
 once almost universal throughout Europe, and still generally subsist, 
 though much modified in form and efiect. No one could pursue a 
 trade or mechanical occupation on his own account who was not 
 a member of such guild or company. Nor could he become a 
 member except by a regular apprenticeship. A change of trade, 
 therefore, became very diflScult, and the several companies provided 
 with great care against such increase of their members as should 
 render it too difiBoult for all to find occupation. Under such circum- 
 stances, to enter upon an apprenticeship which led to such 
 membership was to acquire a support for life, and it was usual , to 
 pay large fees to the master. This custom- exists in England at 
 the present day. (1 Parsons on Con. 533.) 
 
 In this country every employment is open to all, and every 
 person is at liberty to engage in such business as he pleases, and to 
 change his business as often as he pleases, and therefore the appren- 
 ticeship system is less important and apprenticeships less common 
 vsdth us than in Europe. 
 
 § 99. The subject of apprenticeship is regulated by statute in 
 England and in most of the American States. In the State of 
 New York every male infant, and every unmarried female under 
 the age of eighteen years, may, of his or her own free will, bind 
 himself or herself, in writing, to serve as clerk, apprentice or serv- 
 ant in, any profession, trade or employment ; if a male, until the 
 age of twenty-one years, and if a female, until the age of eighteen 
 years, or for any shorter time; and such binding will be as valid 
 and effectual as if such infant was of fnll age at the time of making 
 the engagement. Such binding, however, must be with the consent 
 of the father of the infant. If he be dead, or be not in a legal 
 <;apacity to give his consent, or if he have abandoned and neglected 
 to provide for his family, and such fact be certified by a justice ot 
 the peace of the town, and indorsed on the indenture, then the 
 consent may be given by the mother of the infant. If the mother 
 be dead, or be not in a legal capacity to give such consent, or 
 refase, then the consent may be given by the guardian of the 
 infant duly appointed. If the infant have no parent living, or 
 none in a legal capacity to give consent, and there be no guardian, 
 then the overseers of the poor, or any two justices of the peace of 
 the town, or any judge of the county court of the county where the 
 infant resides, may give the consent. The consent is required to 
 19 
 
146 LAW OF INFANCY. 
 
 be signified in writing, by the person entitled to give the same, by 
 a certificate at the end of, or indorsed upon, the indentures, and not 
 otherwise. The executors of any last will of a father, who is 
 directed in such will to bring up his child to some trade or calling, 
 may bind such child to service as a clerk or apprentice, in the same 
 manner as the father might have done if living. In case the child 
 
 . has been sent to the county poor-house, or is chargeable to the 
 county, the county superintendents 'of the poor may bind out such 
 child; or in case the child is chargeable to a town or city, then the 
 overseers of the poor of such town or city may bind out such child 
 to be a clerk, apprentice or servant, with the consent, in writing, 
 of any two justices of the peace of the town, or of the mayor, 
 recorder or alderman of the city, or any two of them ; which bind- 
 ing will be as efiectual as if the child had bound himself with the 
 consent of his father. The age of the infant so bound must be 
 inserted in the indentures, and will be taken to be the true age 
 without further proof ; and whenever public officers are authorized 
 to execute the indentures, or their consent is required to the validity 
 of the same, it is made their duty to inform themselves fully of the 
 
 ■ infant's age. Every sum of money paid or agreed for, with or in 
 relation to the binding out of any clerk or apprentice, must be 
 inserted in the indentures. If the child is bound out by the super- 
 intendent of the poor of the county, or by the overseers of the 
 poor of a city or town, the indentures must contain an agreement 
 on the part of the person to whom the child is bound, that he will 
 cause such child to be instructed to read and write, and, if a male, 
 will cause him to be instructed in the general rules of arithmetic, 
 and that the master wiU give to the apprentice, at the expiration 
 of his or her service, a new Bible. . (2 i?. x^. pa/rt 2, ch. 8, title 4, 
 art. 1, §§ 1-11. 2 Stat, at Large, 160-162.) 
 
 § 100. The statute of New York may be taken as a sample, in 
 all essential respects, of the general law in the several states, and 
 contains the substance of the English statute law on the subject. 
 By the New York statute it is expressly declared that no indenture 
 or contract for the service of an apprentice shall be valid as against 
 the person whose services may be claimed, unless made in the 
 manner prescribed ; and the county superintendents of the poor and 
 the overseers of the poor are made the guardians of every person 
 bound or held to service in their respective cities or towns, to take 
 care that the terms of the contract of service be fulfilled, and that 
 
BINDING ACTS OF INFANTS. 147 
 
 such person be pi'operly used ; and it is made their especial duty to 
 inquire into the treatment of every such person and redress any 
 gi'ievance in the manner prescribed by law. It is further provided 
 that if sa\j person lawfully bound to service shall willfully absent 
 himself from such service, without the leave of his master, he shall 
 be compelled to serve double the time of such absence, unless he 
 otherwise make satisfaction for the loss and injury sustained by such 
 absence ; but the additional service can in no case extend beyond 
 three years next after the end of the original term of service. If 
 any apprentice shall refuse to serve, according to the provisions of 
 the statute or the terms of his contract or indentures, his master 
 may apply to any justice of the peace of the county, or to the 
 mayor, recorder, or any alderman of the city where he resides, who ■ 
 is authorized by warrant or otherwise to send for the person so 
 refusing, and, if such refusal be persisted in, to commit such person 
 by wan'ant to the bridewell, house of correction, or common jail of 
 the city or county, there to remain until such person consents to 
 serve according to law. On complaint being made on oath, by any 
 master, touching any misdemeanor or ill behavior of any such 
 person, to any two justices of the peace of the county, or to the 
 mayor, recorder, and aldermen of any city, or any two of them, it is 
 made their duty to cause the person complained of to be brought 
 before them, to hear, examine and determine the complaint ; and 
 if |he complaint appear to be well founded, the officers may, by 
 warrant, commit the offender to the house of correction, or to the 
 common jail of the county, for any term not exceeding one month, 
 there to be employed in hard labor and to be confined in a room 
 with no other person ; or they may, by a certificate under their 
 hands, discharge the offender .from his service and the master from 
 all obligations to such offender. And if any master be guilty of 
 any cruelty, misusage, refusal of necessary provisions or clothing, 
 or any other violation of the provisions of the law, or of the terms 
 of the indenture or contract, toward any such person bound to 
 service, such person may make complaint to any two of the officers 
 above specified, who are thereupon required to .summon the parties 
 before them, and examine into, hear and determine the complaint, 
 and by certificate under their hands discharge such person from his 
 obligation of service. In case the master or mistress of any such 
 apprentice shall have received, or be entitled to receive, any sum 
 of money with the apprentice, as a compensation for his instruction, 
 
148 LAW OF INFANCY. 
 
 then, on the complaint aforesaid, the said officers may make such 
 order and direction between the master and the person bound to 
 service as the equity of the case may require; and, if the difficulty 
 cannot be compounded or reconciled, the officer may recognize the 
 master to appear at the next court of sessions of such county, in 
 such sum and with such sureties as he shall approve, and the 
 matter will then be adjudicated upon and disposed of by the court 
 of sessions. (2 B. 8. part 2, ch. 8, tit. 4, art. 3, §§ 26-43. 2 Stat, 
 at La/rge, 165-167.) 
 
 § 101. Infants coming from any foreign country beyond sea, 
 may bind themselves to service until they attain the age of twenty- 
 one years, or for a shorter term, or if such contract of service be 
 made for the purpose of raising money to pay his passage, or for the 
 payment of such passage, the term may be for one year, although 
 such term may extend beyond the time when such person wiU be 
 of full age, but it cannot be for a longer term. Such contract, 
 however, will not bind the servant, unless it be acknowledged by 
 him before some mayor, recorder,, or alderman of a city, or before 
 some jiistice of the peace ; nor unless a certificate of such acknowl- 
 edgment, and that the same was made freely on a private examination, 
 be indorsed on such contract ; and such contracts, in cases of infants 
 coming from beyond sea, may be assigned by the master, by an 
 instrument in writing indorsed thereon, executed in the presence 
 of two witnesses, provided the assignment be approved off in 
 writing, by any of the magistrates above mentioned, and such 
 approbation must be indorsed on the contract. (2 B. S.- part 2, 
 ch. 8. tit. 4, a/rt. 1, §§ 12-14. 2 Stat, at Large, 162.) 
 
 § 102. In the State of Maine, infants may be bound as appren- 
 tices or servants, females imtil they are eighteen years of age, and 
 males until they are twenty-one, by the father, or, if he be dead or 
 legally incompetent, by the mother or lawful guardian, and if ille- 
 gitimate, by the mother, or, if there be no competent parent or 
 guardian, then the minor may bind himself, with the approbation 
 of the selectmen of the town. If the infant is above the age of 
 fourteen, he must absent to the contract by signing the indenture. 
 The overseers of the poor may bind out the children of paupers. The 
 court may discharge either party from the obligations of the con- 
 tract for good cause, as in New York. The death of the master 
 discharges the apprentice, and the articles are not assignable ; but 
 the father may assign or contract for the services of his children 
 
SINDING ACTS OF INFANTS. 149 
 
 during their minority. {H. S. ohs. 24, 62.) The same is sub- 
 stantially the law in New Hampshire, {Gorryp. Stat. 1853, ch. 
 160), also in Massachusetts {Ge7i. Stat. ch. Ill, §§ 2, 3). 
 
 In Massachusetts, however, the statute provides that a respon 
 sible person shall become obligated to the master of the apprentice 
 in the simi of two hundred dollars, that the apprentice shall faith- 
 fully serve such master the full term of apprenticeship. {Su^ylement 
 to Gen. Stat. ch. 270.) 
 
 And in the same state, it has been held that an indenture made 
 in another state, between the citizens thereof, by which a mother, 
 after the death of the father, commits a child to the care and cus- 
 tody of a trustee of a society of Shakers, to be brought up and 
 instructed according to their principles and usages, is binding on 
 the mother, although not in the form prescribed by the laws of that 
 state, in order to bind the child ; and if the child be well cared for 
 by the Shakers, and being of sufficient mind and capacity to judge, 
 desire to remain with them, the mother will not be allowed to 
 reclaim such child. {Curtis v. Curtis, 5 Gray's R. 535.) 
 
 In the State of Vennont, minors over fourteen years of age may 
 be bound as apprentices and servants by their father or guardian, 
 with the expressed consent of the minor in, the indenture, and cer- 
 tified by his signing the same. {It. S. 1863,' ch. 72 j § 48, and ch. 
 T3, §§ 1-3.) The selectmen are required to inquire into the treat- 
 ment of apprentices and servants employed in manufacturing 
 establishments. {Ih. ch. 72, § 11.) In the State of Khode Island 
 the law on this subject is similar to that in Vermont. {B. S. 1857, 
 ch. 139, §§ 1-26.) Tl^law is substantially the same in Connecticut 
 as in Vermont, and it is expressly held by the courts of Con- 
 necticut that a parol binding is not valid, and that an apprenticeship 
 cannot be created except by an instrument in writing. {B. S. 1866, 
 tit. 1,3, ch. 6, § 93. Feters v. Zord, 18 Conn. B. 337.) The law 
 is substantially the same in New Jersey as in Connecticut. 
 {Elmer's Big. 1855, _p. 22, § 1.) The same in Pennsylvania. 
 {Purdon^s Dig. ch. 51, § 1. The same in Ohio, but if the guar- 
 dian binds the infant out, the court of common pleas must approve 
 the terms. (1 B. 8. eh. 5.) The same in Missouri. {Gen. Stat., 
 ch.ltl, §§ 2, 3.) The same in Oregon. {Gen. Laws 1845-1864, 
 ch. 12, § 37.) The same in Virginia. {Code, 1849, ch. 126, § 1.) 
 
 The law in Michigan is substantially the same as in New York. 
 (2 Comp. LoMS, ch. 111.) In "Wisconsin the same. {B. S. ch. 113.) 
 
160 LAW OF INFANCY. 
 
 The same in Kentucky, thongli it is expressly provided that on the 
 death of the master, servitude ceases. (2 B. S. ch. 64.) In Iowa 
 the law is similar to the New Tork statute. {Rev. Laws 1860, ch. 
 106.) 
 
 The law in Louisiaaa is the same substantially as in Maine, except 
 that the consent may be given to the apprenticeship by the father 
 of the infant or his tutor, or the parish judge. The contract must 
 be made before a notary, and read to and signed by the parties. 
 {B. S. 1856, p. 336, § 1.) 
 
 In l!forth Carolina, the county court may bind out poor orphan 
 children and illegitimate children for the usual terms as appren- 
 tices ; and the master is required to teach them to read and write, 
 and at the expiration of their apprenticeship to make them an 
 allowance (1 Bevised Code, ch. 6, §§ 1, 2) ; and the infant can only 
 be bound by a deed executed by both the father and the child. 
 {Musgrovc v. Kerneygay, 7 Jonei Law R. 71.) 
 
 In Maryland, the father may bind out his infant child as an 
 apprentice on reasonable terms, without any consent on the part of 
 the child. (1 Maryland Code, oH. 6.) The laws of the other 
 states upon the subject are probably quite similar to those of 
 the states named, and the general principles of apprenticeships 
 applicable in' England and in the states already enumerated, are 
 recognized in all the states. 
 
 § 103. In England and in many of the states of the American 
 Union, statutes exist having for their object the protection of 
 children from laborious toil unsuitable to their years. Thus, in 
 England the hours of labor for apprentices J&d servants are limited 
 to ten hours in any one day, and to fifty hours in any one week. 
 (10 & 11 Vict. ch. 29.) 
 
 In the State of Maine, children under fourteen years of age are 
 not to. be employed in manufacturing establishments more than 
 ten hours per day. {R. 8. chs. 48, 82.) There is a similar pro- 
 vision in New Hampshire. {Comp. Laws 1853, ch. 149, § 35.) 
 And also in Pennsylvania. {Brightley^s Big. p. 452, §§ 1-6.) In 
 the State of Connecticut children under ten years are not to be 
 employed in factories at all, and those above that age and under 
 eighteen are not to be employed in any manufacturing or 
 mechanical establishment more than twelve hours in any one 
 day, or more than sixty-nine hours in one week. {B. S. 1866, tit. 
 13, ch. 4, § 50.) 
 
BINDING ACTS OF INFANTS. 151 
 
 In the State of Massachusetts, it is provided that children 
 between the ages of twelve and fifteen years of age, who have been 
 in the state six months, shall not be employed in any manufactur- 
 ing establishment unless they have been in school under competent 
 teachers for at least eleven weeks during the twelve months next 
 preceding the employment of such children in such factory, and 
 that during each twelve months of such employment they shall be 
 in school the like term of eleven weeks under like competent 
 teachers. {Gen. Stat. 1860, ek. 42, § 1.) And children under 
 twelve' yeai'S of age are not to be employed in .a factory exceed- 
 ing ten hours in any one day, under a' penalty of fifty dollars. 
 {Tb. § 3.) And in the State of IS^ew Jersey, no child under the 
 age of ten is permitted 'to work in a factory at all, and no minor 
 above that age can be required to work in any manufacturing 
 establishment more than ten hours in any one day, or more than 
 sixty hours in one week. {Lavjs 1851, p. 321. Elmer's Dig. 
 1855, p. 335.) This humane legislation is gaining ground in 
 most of the states, and exertions are being made in some instances 
 to limit the hours of labor per day still more than the examples 
 here given. 
 
 § 104. Some general rules with respect to apprenticeships may 
 be noted. The contract of apprenticeship must be in writing, and 
 is most usually by deed ; and xinless there is some statute to the 
 contrary the infant cannot be bound by an act in pais, nor 
 unless he is a party to the writing or deed. This is understood 
 to be the rule at common law, though the necessity of the infant's 
 joining in the deed is often prescribed by statute. {Tfis Ki/iig 
 V. Gromford, 8 Easfs R. 25. The King v. Amesly, 5 JEng. 
 G. L. R. 385. Mather v. McBowles, 8 Johns. R. 328. Spring- 
 field V. Si/rskill, 2 Yerger's \Tenn.\ R. 546. Pierce Y.Messen- 
 Tmry, 4 LeigKs JR. 493. Ha/rvey v. Owen, 4 BlaoJ^ord's [^Ind.l 
 R. 337. Batch v. 'Srmth, 12 N. R. R. 438. Gaster v. Aides, 
 1 SalkeMs R. 68. The King v. Bow, 4 Mauh do Selwyn^s R. 383. 
 Squire v. Whipple, 1 Vt. R. 69. Gommonwealth v. Wilbanlss, 10 
 Sergeant <& Ramie's R. 416. Stokes v. Matcher, 1 South. [iT. e/.] 
 R. 84.) The term of service for males is usually until the infant 
 arrives to the age of twenty-one ; and for females until she attains 
 the age of eighteen, although the indentures will be binding if the 
 term is to end at an earlier period. (Brown v. Harris, 6 Gfratt. 
 [Fa.Ji2. 285.) 
 
152 LAW OF INFANCY. 
 
 The master may cliastise his apprentice for negligence or misbe- 
 havior, though it must be done with moderation. {Commonwealth 
 V. Baird, 1 Ashmead^s [Penn.] E. 267.) 
 
 The better opinion is that the trust reposed in the master is a 
 personal one, and that therefore an indented apprentice cannot be 
 assigned from one master to another, and in North Carolina, Ala- 
 bama and Massachusetts, it has been expressly, and in New York, 
 impliedly, so held. {Hall v. Ga/rdner, 1 Mass. B. 172. Davis 
 T. Oolmwn, 8 «5. 299. Ramdall v. Botch, 12 Pick. B. 109. Ayn 
 V. Ghase, 19 *5. 556. Williams v. Finch, 2 Barb. B. 208. JVicJt- 
 erson v. Eoioard, 19 Johns. B. 113. Tucker v. Magee, 18 Ala. R. 
 99. Frebwell v. Tamn, 8 Ired. B. 402.) Such assignment, how- 
 ever, would amount to a contract between the two masters, that 
 the child should serve the latter master, so that the assignment is 
 good by way of covenant, though not as an assignment, to pass an 
 interest. {Nickerson v. Howard, supra.) The assignment of the 
 indentures with the assent of the apprentice, and the serving the 
 assignee by the apprentice the whole term of service, will be deemed 
 a continuance of the apprenticeship with the infant's consent, so 
 that he cannot recover pay for his services. ( WiUiams v. Mnch, 
 sv^a.) Under the statute of Pennsylvania, the assent of both father 
 and apprentice is requisite to a valid assignment by the indentures. 
 {Commonwealth v. Yam, Lear, 1 Serg. <& Ba/wle^s B. 248.) 
 
 Indentures of apprenticeship are not rendered invalid by an 
 omission to specify the profession, trade or employment in which 
 the apprentice is to be instructed. It is sufficient if the minor 
 covenants to be under the care and in the employment of the mas- 
 ter, and the master covenants that, in addition to supporting, 
 clothing and educating the minor, he will teach him, or cause him 
 to be taught, such manual occupation or branch of business as shall 
 be found best adapted, or most suitable to his genius and capacity. 
 If the indentures do not conform to the statute in any essential 
 particular, they are only voidable by the apprentice, and cannot be 
 avoided by any other person. It is no objection to the indentures 
 that the binding is to the master as trustee of a religious society or 
 sect. The additional words are merely deseriptio personae, and the 
 binding is deemed to be to the master individually and personally. 
 {Fowler v. Hollenieck, 9 Ba/ri. B. 309.) 
 
 Should a minor, indentured as an apprentice, serve his master in 
 that capacity until it was discovered that the indentures are void 
 
BINDING ACTS OF INFANTS. 153 
 
 by reason of their not having been executed by the minor's father, 
 the master will not be liable to the father to make compensation 
 for the services of the minor. Although the contract of apprentice- 
 ship be void, yeib, while the parties reside together, mutually 
 performing the conditions of the contract, the relation of master 
 and servant exists as really as if the indentures were binding. 
 {MalOy V. Rarwood, 12 Barh. JR. 473.) 
 
 An infant who has labored for another for three years may 
 recover the price agreed upon for his services, although the contract 
 was not binding upon the infant for the reason that it was not in 
 compliance with the statute in relation to apprenticeships. (Davies 
 v. Turton, 13 Wis. R. 185.) 
 
 The person who is to consent to the binding of the apprentice 
 must do so by a certificate,, at the end of or indorsed upon the 
 indentures, and the mere signatures of the latter, though they 
 express his consent, will not answer. No form of words, however, 
 is necessary in the certificate, but it is sufficient if it fairly import 
 the requisite consent. (The People v. Tfoe First Judge of lA/omgs- 
 ton 'County, 2 SilVsE. 596.) 
 
 In the bindiag of an infant town pauper, if there are two over- 
 seers of the poor of the town, they must both join in the execu- 
 tion of the indentures. {Overseers of the Poor of Handlton v. 
 Overseers of the Poor of Eaton, 6 Cow. P. 658.) 
 
 § 105. At common law the infant is not liable for a breach of 
 the covenants in his indentures of apprenticeship, and in an action 
 brought against him for violating such covenants, he may plead 
 his infancy as a defense. {Cwrmning v. Hill, 3 Barn. <& Aid. B. 
 69. Gylhert v. Fletcher, Cro. Oar. 179. Jennings v. Pitman, Mul- 
 ton's B. 63. LyThps case, 1 Mod. B. 15. Whitley v. Zoftus, 8 ib. 
 190. Frazier v. Rowam,, 2 Brem. B. 4Y. McKnight v. Hogg, 3 *5. 
 44. Blunt V. Melcher, 2 Mass. B. 228. Harper v. Gilbert, 5 Oush. 
 B. 417.) As has been observed, by the custom of London, infancy, 
 would be no defense in such cases {ante, § 97) ; and in the State 
 of Arkansas it was said in one case that the contract of apprentice- 
 ship was binding upon the infant in such a way as to make him 
 liable for a breach of his covenants ( Wood/ruff v. Logam^, 1 Fng. 
 B. 276) ; but this is not according to the current of authority. 
 The apprentice, however, cannot abandon his master's service and 
 avoid his indentures unless his master desert him, and if he does so 
 he will be liable to be proceeded against in the manner usually pre- 
 20 
 
154 ZAW OF INFANCY. 
 
 scribed by statute. {Rex v. Great Wigston, 10 Eng. C. L. B. 161. 
 Kmg V. Mountsovel, 3 Maule cfe Selw. JR. 497.) 
 
 In case of the sickness of a minor, his master is bound to furnish 
 proper medicines and attendance, and the sickness of an apprentice, 
 or his inability to learn or serve without his fault, does not discharge 
 the master from his covenants. (Hex v. Owen, 1 Strange's B. 99. 
 Winestone v. Zinn, 1 Barn, db Cress. JR. 460.) 
 
 In one case in England, Lord Denman said, " There is a great 
 difference between a contract of apprenticeship and a contract with 
 a servant. A person has a right to dismiss a servant for miscon- 
 duct, but has no right to turn away an apprentice because he 
 misbehaves." ( Wise v. Wilson, 1 Garr. <& JKirwwn^s JR. 662.) If 
 the apprentice desert his master and enter into new relations, so as 
 to put it out of his power lawfully to perform his first indentures, ' 
 the master is under no obligation to receive the apprentice back, 
 although he may offer to return. {Hughes y. JSv/m/phreys, 6 Bam. 
 <& Cress. B. 680.) Upon the death of the master the apprentice- 
 ship is dissolvedj for the same reason that the indentures cannot be 
 assigned by the master. The trust is personal. However, the 
 assets in the hands of the representatives of the master are charge- 
 able with the necessary maintenance of the infant apprentice. (2 
 Kent's Com. 266. The Kmg v. Pecit, 1 Salk. B. 6. Baxter v. 
 Burfield, Sir. B. 1266.) 
 
 It has been held in Louisiana, and the doctrine is certainly very 
 reasonable, that the contract of apprenticeship is personal, and not 
 susceptible of alienation without the consent of all parties, and 
 consequently, that it ceases on the insolvency as well as the dealh 
 of the master, inasmuch as his character and disposition enter into 
 the consideration of the contract ( Versailles v. JHJall, 5 JMilleP's li. 
 266 ; vide also 2 JKenfs Com. 266, note b) ; and this is in accordance 
 with the express provisions of the statute in several of the states. 
 {Ante, § 103.) 
 
 The master is entitled to the earnings of the apprentice, and 
 should the apprentice run away and labor for another, the master 
 would be entitled to his wages or gains. (2 KewPs Com. 265, note a.) 
 The master has no right to employ his apprentice in menial services, 
 if the apprenticeship was to a particular art or trade. {Common- 
 wealth V. Remjperly, Lam Beport&r [Penn.], July, 1849, p. 129. 
 JEllen V. Topp, 4 Mig. L. and Eg. B. 412.) And it is held in Penn- 
 sylvania that if the master neglects to take charge of the apprentice 
 
BINDING ACTS OF INFANTS. 155 
 
 for the entire term, the authority of parent or guardian will super- 
 vene. {Commonwealth v. Conrow, 2 Barr's S. 402.) This rule, 
 however, would not apply in those states where statutes exist 
 prescribing the method of proceeding to dissolve the relation of 
 master and apprentice. 
 
 § 106. Erom the fact that the infant may set up his infancy as a 
 defense for violation of his covenants, it is common for some friend 
 of the infant to undertake for his faithful discharge of his oflico, 
 according to the terms agreed on. (4 Bac. Abr. 562, tit. Master 
 and Servant) 
 
 But in order to make the third person liable, he must be a party 
 to the covenant. Thus, in one case in Massachusetts, involving the 
 question, Parker, J., in giving the opinion of the court, observed : 
 " The question for our determination is, whether the defendant is 
 bound by the covenants in this indenture for the appi-entice's good 
 conduct. My opinion is, decidedly, that he is not bound. He is 
 not mentioned as a party to that or any other covenants contained 
 in the instrument. The intent of all the parties in making this 
 indenture, appears from the instrument itself The apprentice 
 binds himself with the consent of the guardian. To express that 
 consent, and, in my opinion, with no other intent, and for no other 
 purpose, the guardian signs and seals the instrament. It is 
 objected to this, that great inconveniences and mischiefs will arise 
 from this construction of this species of indenture. But to guard 
 against these, the guardian may enter into' covenants explicitly 
 with the master, and there is no doubt such covenants will be valid 
 and binding upon him." {Blunt v. Melcher, 2 Mass. S. 228.) 
 
 The rule that in order to hold the parent or guardian on such 
 articles, the undertaking must be explicit, is supported by a case 
 also in the supreme court of the State of !N"ew York, where it was 
 held that indentures purporting to be between the master and the 
 infant, " by and with the consent of the guardian," naming him, 
 and executed by all of them, did not hold the guardian for a breach 
 of the indentures on t^e part of the apprentice. {AcMey v. 
 Soshins, 14 Johns. R. 374.) But when the indentures are in the 
 usual form, declaring the duties of the apprentice, and concluding 
 thus : " for the true performance of all and singular the said 
 covenants and agreements, the said master^ apprentice and 
 guardian, have hereunto interchangeably set their hands and seals, 
 the day and year first above written," and signed by all the 
 
156 LAW OF INFANCY 
 
 parties, the guardian will be bound to see that the apprentice jfiilfills 
 all his duties to his master. {Bull v. Follett, 5 Cow. R. 170.) 
 
 Should the parties to a contract for the apprenticing of an 
 infant, bind themselves, so far as it is in their power, to see the 
 contract fulfilled, their respective obligations will be deemed to he 
 limited to their legal liability to perform their several undertakings, 
 and they will be bound so far as it depends upon their own acts, 
 or their legal control over the minor, and no further. Should the 
 minor, thus apprenticed, leave and abandon the service of his 
 master, after having been in his employ some years, under the con- 
 tract, and refuse to work for him any longer, it would be the duty of 
 the party covenanting for the infant, to do what he has the legal 
 power to do, to effect the return of the apprentice, and if he should 
 make no endeavors, and refuse to do any thing to accomplish the 
 object, he would make himself liable for a breach of his obKgation. 
 ( Van Dam v. Young, 3 Bwrh. R. 286.) 
 
 The parties who covenant for the good behavior of the apprentice 
 are not liable for every trifling misconduct ; it must be something 
 which is substantial and positively injurious to the'interests of the 
 master. ( Wright v. Gihon, 3 Garr. ds JPayne'sR. 583. Chiming v. 
 Hill, 3 Ba/mw. c& Aid. R. 59. Vide also HolhrooTc v. Bullard, 10 
 Pick. R. 68.) 
 
 A party who seduces an apprentice from the employ of his 
 master, or employs him without the knowledge or consent of his 
 master, is liable to the master for the services of the apprentice. 
 Lightly v. Clouston, 1 Taimt. R. 112. Foster v. StewaH, 3 Mmik 
 & Selw. R. 191. Bowers v. Tibbets, 7 Crr^enl. R. 457. Gonant v. 
 Raymond, 2 Ailc. [ Vt.'\ R. 243. Munsey v. Goodwin, 3 N. H. B. 
 '2i1'2i. James v. Le Roy, 6 Johns. R. 274. But vide Ayefr v. 
 Ghase, 19 Pick. R. 556.) 
 
 A party will be liable also for harboring an apprentice against 
 the will of the master, provided he knows of the apprenticeship. 
 Ferguson v. Tucker, 2 Ear. <& GilVs R. 182. Stuart v. Simpson, 
 1 Wend. R. 376. Gonaml v. Raymond, supra.) 
 
 § 107. Mr. Story lays it down, as gathered from the authorities, 
 that the representative acts of an infant are binding generally, as 
 when he is an executor or trustee, for the reason that such contracts 
 do not concern his own interest, and to render them void would be 
 to invalidate the contract of the cestui que trust, who may be per- 
 fectly competent to contract, and who has an undoubted right, if 
 
BINDING ACTS OF INFANTS. 157 
 
 he choose, to take the risk of the infant's competency. {Story on 
 Con. § 76, citing Kmg v. Great Wigston, 5 Dowl. (& Ryl. E. 339. 
 S. G. 3 Barn. (& Cresw. R. 484.) It has been shown in what 
 manner and under what circumstances an infant may exercise the 
 oflSce of an executor {ante, § 80) ; and in all those cases the acts of 
 the infant executor are binding, and cannot be avoided. Infants 
 not being weU qualified for the performance of trusts, it is difficult 
 to consider an infant as intended to be a trustee, and the tendency 
 has been to interpret gifts to an infant as favorably to him as pos- 
 sible, and the court will not infer an intention to appoint an infant 
 a trustee, unless it is unequivocally expressed. {Blinkhorn v. Frost, 
 2 Ves. Sen. B.) 
 
 In a leading case in England, where it appeared that the father 
 had purchased property in the name of his son, who was an infant, 
 the court presimied it to be an advancement, rather than make 
 the infant a trustee. {Lamplugh v. Lamvplugli, 1 P. Wm. It. 112.) 
 But in a case in the court of chancery of the State of New York 
 where a father, who was an alien, purchased property in the naixie 
 of his wife, and while the property was vested in her she died, 
 leaving infant children, on application of the father, the tom-t 
 decided that the children held the property as trustees of the father, 
 and they were ordered to convey the legal title, by their guardian 
 ad litem, to the father. {In the matter of Windle, 2 Fdw. Oh. R. 
 585.) And in all cases, if it distinctly appears from the circum- 
 stances, that a gift has not been conferred upon the donee for his 
 own benefit ; as when, upon the construction of a will, a person is 
 plainly a trustee, or where a pei-son takes a purchase in the name 
 of another, and receives the profits himself, it will never be held 
 that there can be no trust, on the ground that the person in ques- 
 tion is an infant. {King v. Denison, 1 Ves&y & Beameh R. 260, 
 275. Ghrey v. Qrey, 2 SwanstorCs R. 600. Uen^on v. Bush, 1 Yern. 
 B. 343.) If a father purchase land in the name of an infant son, 
 though he takes the profits and control of the land, this will not be 
 regarded as evidence of a trust in the infant, but rather as an 
 advancement, and the father cannot dispose of the land in any 
 way so as to deprive his son of it. {Grey v. Gr^y, swpra. 
 Lamiphigh y. Lamplugh, swpra. Mumma v. Mvmmia, 2 Vern. 
 B. 19. Taylor v. Taylor, 1 Ath. B. 386. Stilhnan v. Ashdown, 
 2 'lb. 480. Zoyd v. Bead, 1 P. Wm. B. 607.) But in one case in 
 England an infant was held to be a trustee of an estate purchased 
 
158 LAW OF INFANCY. 
 
 in liis name on account of his tender years. {Bvnion v. Stone, 2 
 Freem. R. 168.) In all cases where an infant is a clear, express 
 trustee, he may be compelled to convey, and, in general, if he con- 
 vey without an order of court, his act will bind him, though the 
 trust must be in 'writing, not by construction of equity. {Ex parte 
 Prosser, 2 Br. Oh. R. 325. Ex paHe Johnson, 3 Atk. R. 559. 
 Ex pa/rte Vernon, 2 P- Wm. R. 549. Momkins v. Olefin, 2 Yeseyh 
 R. 559.) And it has been held in New Jersey, that a resulting 
 trust cannot be established against an infant except by decree of 
 court, in a suit regularly instituted, the chancellor remarking that 
 the principle of the cases is that the court will proceed, under the 
 statute, only when trusts are created by express declaration, or have 
 been settled by a decree. {In the matter of Follen, McOartrn's 
 Oh. R. 147.) So also it was held by the late court of chancery of 
 the State of New York, that where a resulting trust comes within 
 the provision of a statute, an infant may be decreed to convey such 
 trust, on its being established by parol proof. {lAmingston v. Im- 
 ingston, 2 Johns. Oh. R. 53Y.) If the infant trustee be ^.f&me-Goe&et, 
 she may be directed by the court to convey by fine. {Ex pa/rte 
 MoMfe, 3 Atk. R. 479.) A minor holding land in trust for another, 
 who has given a bond for its conveyance, may convey the land 
 according to the bond, and he will not be allowed to plead infancy 
 to invalidate his deed ; because he could be compelled to convey 
 the land, and his conveyance, without legal compulsion, is good. 
 {Prouty V. Edgar, 6 darkens [Iowa] R, 353.) The same rule obtains 
 in case the infant is the trustee of a charity. {Attorney- General v. 
 Pom/ret, 2 Coas's R. 221.) In fact, all the acts of infants, in the 
 capacity of trustees, are binding, and all necessary costs will be 
 allowed the infant, and he will be liable for a fraudulent execution 
 of the trust. {Piatt v. St. Glair, 6 Ohio R. 227. Exparte Vernon, 
 supra. Goodwyn v. Lyster, 3 ii>. 387. Ex parte Gamt, 10 Ves. 
 Jr. R. 554.) 
 
 § 108. An infant is bound by all conditions, charges and penal- 
 ties, in an original conveyance, whether he comes to the estate by 
 grant or descent. So by conditions annexed to the estate, at com- 
 mon law, because ^^ transit cum onere" — "it passes with the 
 burden ;" and, therefore, if the jnfant will have the estate, he must 
 observe the condition upon which it was granted. On this prin- 
 ciple, if a person devise to his granddaughter, who is not heir at 
 law, lands, upon condition she marry with the consent of certain 
 
LACHEa OF INFANTS 159 
 
 tnistees, she is obliged to take notice, at her peril, of the condition, 
 and likewise to perform it ; but had she been heir at law, she must 
 have had notice given her of the condition, to make the marriage 
 without consent, a forfeiture. {Bing. on Inf. 96.) , A gift to an 
 infant, on condition, binds him as well as an adult. {Scott v. 
 Houghton, 2 Vem. ■ E. 560.) Lord Coke makes a distinction 
 between conditions in fact that are expressed, and conditions in 
 law that are implied. If the condition is founded on skill, and is 
 broken, the infant is barred forever. If not founded on skill and 
 confidence, the rule is otherwise. ( Whittmgham^s case, 8 Coke's 
 B. 44.) 
 
 CHAPTEE X, 
 
 HOW FAte THE LAW PROTECTS X!S INFAIIT AGAINST HIS LACHES — EXCEP- 
 TIONS TO THE ETTLE IN HIS FAVOE — HOW AFFECTED BY THE STATUTE 
 OP LIMITATIONS — ^LAWS OF THE SEVERAL STATES — ^jm)GMENTS AND 
 DECEEES AGAINST INFANTS. 
 
 § 109. It is a maxim of law that no laches or neglect is imputa- 
 ble to an infant durante minoritate, because he is not supposed to 
 be cognizant of his rights, nor capable of enforcing them. ( Ware 
 T. j^-ush, 1 McLean's E. 533. State v. McNigU, 1 Bay's [S. C] 
 E. 65.) On this ground the right of entry is presumed for infants 
 in many cases in which it is lost to adults. {Zii. S. 402, 403.) The 
 staleness of the demand or transaction is no prejudice, if infancy 
 occur. {WAaley v. Miot, lA.K. Marsh. \Ky.\ E. 345. And no 
 presumption is indulged against an infant by lapse of time.* 
 {Calhmm v. Baird, ZA.K. Ma/rsh. [Ey.} E. 169.) This is the general 
 rule, but it is subject to many qualifications and exceptions. For 
 example, there is a lapse if an infant patron does not present to a 
 
 *In a distingaished case, decided three hondred years ago, by one of the highest courts of Eng- 
 land, Involving the conclusive nature of a fine levied and proclaimed, as against an infant, after 
 the running of the statute of limitations, the doctrine was unequivocally laid down, that " laches 
 of suit or entry cannot be imputed to an infant, whom God has not endowed with understanding 
 or reason ; for if he should take an action, his right and his action might be such as a writ of 
 right, and the like, which he could not prosecute, nor compel the other party to answer during 
 Ma nonage, but the parol should demur, and then it would be in vain to force or to take an action 
 during his nonage, which he cannot prosecute, nor compel the other party to answer during his 
 nonage, and such never was the intent of the makers of the act." (Stowel v. Zouch. Plowdsm's 
 B. 364.) 
 
160 LAW OF INFANCY. 
 
 benefice witMn six months ; and in former times he lost his right 
 to a villein by nonelaim for a year and a day, and forfeited his 
 copyholds by neglecting to pay his fine and to take admittance ; 
 and he may Iqsb his estate by failing to perform a condition annexed 
 to the estate. {Co. Litt. 246 a. 344, I. 380 I. Whitbrnghminls 
 case, 8 Cokeys B. 88.) So if a feofiinent be made reserving rent, 
 with a condition of re-entry in default of payment, if the person 
 entitled under the feoffment be an infant and fail to pay, his laches 
 will bar him. {Go. lAU. 246 J.) 
 
 In the State of Pennsylvania it was held that an acquiescence of 
 twenty-eight years in an award, and the enjoyment of land under it 
 by the infant, is a strong obstacle to any attempt to rid himself of 
 the sum to be paid for it, by nice objections to the form of submis- 
 sion. {Hume V. Huttw, 3 Barr's B. 144.) And in the State of 
 Maryland, it was held that when an infant waited six years after 
 the entry of a judgment against him in an action in which he 
 appeared by attorney, his laches deprived him of the right to set 
 the judgment aside for the irregularity. {Kemp v. Coolc, 18 
 Mcmjland R. 130.) 
 
 But in Kentucky, it has been decided that rents accruing during 
 the minority of the cestui que trust, are not barred by lapse of 
 time. {Pugh v. Bell, 1 J. J. Ma/rsh. B. 399.) And in South 
 Carolina, it has been held that an infant who brings a suit for the 
 recovery of land within the time allowed to infants, cannot be 
 deemed guilty of laches. ( Washington v. Suger, 1 Dessau. R. 596.) 
 When the matter is regulated by statute, and there is no saving or 
 exception in favor of any iucapacity, laches will bar an infant 
 the same as an adult. {Bayner v. Watford, 2 Dev. [iT. C] lano 
 B. 388.) 
 
 § 110. Another exception to the rule that no laches or neglect is 
 imputable to an infant, may be found in a case where the rule 
 might happen to be a public mischief, as in what is termed a 5a«- 
 tard eigne and Tnulier puisne. This happens in England, when a 
 man has a bastard son, and afterward marries the mother, and by 
 her has a legitimate son, who was begotten before wedlock. Here 
 the eldest son would be dastard eigne, and the younger son would 
 be mndier puisne. In such a case, if the father dies, and the bas- 
 tard enters upon his land, and enjoys it to his death, and dies 
 seised of it, whereby the inheritance descends to his issue, the 
 younger son, though a minor, will be barred of his rights. (2 
 
LACHES OF INFANTS. 161 
 
 Black. Com. 248.) In this case, it is said, the law has not thought 
 fit to except the infant from the imputation of laches,, because such 
 exception might happen to be a public mischief in a very tender 
 point ; for it might be any man's case to suffer by the bastardy of 
 an ancestor ; and it is difficult to review the evidence of legitim'a- 
 tion, which so easily perishes with the life of the party. (Bmg. 
 on Inf. 99.) But this indulgence was not shown to any other 
 kind of a bastard ; for if the mother was never married to the 
 father, such bastard could have no colorable title at all. {Co. lAU. 
 % 400. Pride v. Earls of Bath and Montague, 1 Salh. B. 120.) 
 
 § 111. By the common law, infants are not bound for want of 
 claim and entry within a year and a day, as is the case with adults, 
 nor are they bound by a fine and five years' non-claim, nor by the 
 statutes of limitation, provided they prosecute their right within 
 the time allowed after the impediment is removed. But if the five 
 years begin to run in the time of the ancestor, and he die before 
 they are expired, having made no claim, the heir, though an infent, 
 wiU be barred if he does not claim within, the five years. {Stowel 
 V. Zouoh, PlowdorHs P. 358.) And when an infant, not being 
 a party to a fine, and having a present right, dies during his 
 infancy, his heir must enter within five years after such death, and 
 not at any time after. {Cotton^s case, 1 Simon's P. 215. Dillon 
 V. Zeman, 2 H. Bl. B. 584.) 
 
 Infants are not bound by a " cessavit per hiennmm " — " he ceased 
 for two years" — because the law, intends that they do not know 
 what arrearages to tender. But this writ is of no consequence in 
 the American States, and in England it has given place to speedier 
 remedies. {Sargrame's Co. Litt. 142, note 2.) An infant cannot avail 
 himself of his infancy to excuse the non-assertion of his rights under 
 an executory agreement made with his ancestor, when the imme- 
 diate performance of his part of the contract is essential to the 
 interest of the other contracting party. {Griffin v. Qriffin, 1 Sch. 
 & Lef. B. 352. And vide Marker v. Marker, 41 Eng. Ch. B. 15.) 
 
 If lands are devised to trustees until debts are paid, and then to 
 an infant and his heirs, and a stranger enters on the land, levies a 
 fine, and five years and non-claim pass, and the infant, when of 
 age, is barred of his action because the trustees ought to have 
 entered, equity will relieve, and not suffer the infant to be barred 
 by the laches of liis trustees, nor to be barred of a trust estate 
 during- his infancy, and in such a case the infant will be permitted 
 21 
 
162 LAW OF INFANCT. 
 
 to recover tlie mesne profits. {Allen v. Sayer, 2 Vem. R. 368.) 
 But a fine and five years' non-claim will bar an infant cestui que 
 trust, in favor of a purchaser. {Zord v. Lady Huntingdon, 3 P. 
 Wms. E. 310 n. Wych v. East India Company, il. 309.) 
 
 If a stranger enters and receives the profits of an infant's estate, 
 he will in equity be looked upon as a trustee for the infant. And 
 if a man receive the profits of an infant's estate, and continues to 
 do so for several years after the infant comes of age before any 
 entry is made on him, he must account for the profits throughout, 
 and not during the infancy only. {Bing. on Inf. 101, a/nd cases 
 cited.) But it has been ruled in chancery in England that when 
 one receives the profits of an infant's estate, and six years after his 
 coming of age he brings a bill for an account, that the statute of 
 limitations is a bar to the suit, as it would be an action of account 
 at common law ; for the receipt of the profits of an infant's estate 
 is not regarded such a trust as, being a creation of a court of equity, 
 the statute will be no bar to, for he might have had his action of 
 account at law : and hence there was no necessity that he should 
 come into the court of chancery. The reason why such bills are 
 brought in equity is, that the plaintilF may have the discovery of 
 books, papers, and the party's oath, which they could not formerly 
 do so well at law. But if the infant lies by for six years after he 
 comes of age, as he is barred of his action of account at law, so 
 he will be of his remedy in equity, and there seems to be no sort 
 of difierence in reason between the two cases. (Lockey v. lockey, 
 Free. Ch. 518.) 
 
 § 112. If a legacy be devised generally, and no time ascertained 
 for the payment, and the legatee be an infant, the rule in England 
 is, that he will be entitled to interest on the amount of the legacy 
 from the expiration of the first year after the testator's death ; a year 
 being allowed before distribution can be compelled. But if the 
 legatee be of age, he can only have interest from the time of his 
 demand after the year, for, no time of payment being set, it is not 
 payable but on demand, and he cannot have interest only from the 
 time of his demand; the rule being otherwise as to an infant, 
 because no laches is imputed to him. {Small v. Dee, 2 Salk. B. 
 416.) Though if an infant do not present to a church within the 
 six months allowed in such cases, the church will lapse. If the 
 five years for making a claim after a fine begin in the ancestor's 
 life, the infant must claim within the five years, and he mil be 
 
LACHES 0^ INFANTS. 163 
 
 barred m an appeal of the death of his ancestor, if he do not bring 
 it within a year and a day. If the king die seized, the infant is 
 driven to his petition, for in these cases the law prefers the good 
 of the church, the repose of the realm, and the king's prerogative, 
 before the privilege of infancy. (<7o. Litt. 246.) Of course, laches, 
 after the attainment of majority, bars an individual's claims in 
 respect of what has been done or omitted during his infancy, though 
 relief may, under peculiar circumstances, be given, notwithstand- 
 ing laches after full age. {McPherson on Inf. 541.) 
 
 § 113. By the common law, the statute of limitations will not 
 run against an infant ; and by the laws of England, any person 
 entitled to bring any of the personal actions mentioned in the 
 English statute of limitations, who is within the age of twenty-one 
 years at the time the cause of action accrued, may bring such action 
 within the time limited, after he shall have become of age, and 
 the disability of infancy has terminated. (32 Sen. 8, ch. 2. 21 
 James I, ch. 16.) But it is well settled that the statute of limita- 
 tions will run against infants, except where they are specially 
 exempted from its operation. " General words of a statute, it is 
 considered, must receive a general construction ; and unless there 
 can be found in the statute itself some ground for restraining it, 
 it cannot be restrained by arbitrary addition or retrenchment." 
 {Angell on LimitaUons, § 194.) " "And it was also declared by Sir 
 Eardly Wilmot, in the House of Lords, that infants, like other 
 persons, would be barred by an act for limiting suits at law, 
 if there was no saving clause in their favor." (/5.) The same 
 doctrine is recognized by the authorities, both American and 
 English. {Bucklin v. Fond, 5 Barb. H. 393. Baynm v. Watford, 
 2 Dev. IN. C] JR. 338. Wych v. East India Co. 3 P. Wm,s. E. 309. 
 Beckford v. Wade, 17 Ves. Ch. R. 87. Demurest v. Wyncoop^ 3 
 Johns. Ch. B. 129.) 
 
 In the State of Massachusetts, the liability of heirs for the debts 
 of an ancestor, depends wholly upon statute, and is provisional 
 only ; and such heirs are liable only in case of administration, and 
 after the term of four years has expired, and then only for demands 
 on which no cause of action accrued till after the lapse of four 
 years, and in that case the action is required to be brought within 
 one year of the payment if the demand could be enforced. Under 
 this statute it was held that the fact of the plaintiff's having been 
 under the disability of infancy, during the time that the estate of 
 
164 LAW OF INFANCY. ■ 
 
 the deceased was tinder administration, will not prevent his claim 
 from being barred by the lapse of the four years. {Jlall v. Bum- 
 stead, 20 FioL R. 2. 
 
 By the Eevised Statutes, and Code of Procedure, of the State of 
 New York, it is provided that no action can be maintained for the 
 recovery of real property, or the possession thereof, unless it appears 
 that the plaintiff, his ancestor, predecessor, or grantor, was seised 
 or possessed of the premises in question, within twenty years before 
 the commencement of the a,ction. (2 li. S. pa/rt 3, ch. 4, Ut. 1, § 5. 
 Code of Procedure, § 78. 5 Stat, at- Large, 23.) Under this pro- 
 vision it has been held, that if an adverse possession commence in 
 the life-time of the ancestor, it will continue to run against the 
 heir, notwithstanding the infancy of the latter at the time the right 
 accrues to him. (tlemwig v. Griswold, 3 HilVs It. 85.) 
 
 § 114. As a general thing, both in England and in the United 
 States, infants are expressly exempted from the statute of limita- 
 tions. Thus, in England, it is provided that where a party is an 
 infant at the time the cause of action accrues for the recovery of 
 any real estate, such party may bring his action at any time within 
 ten years after coming of age. (21 James I, ch. 16, § 2. 3 am.d 4 
 William IV, ch. 27, § 16.) 
 
 In the State of Maine, if a;ny person entitled to bring a personal 
 action be an infant at the time his action accrues, he may bring his 
 action within the time limited for bringing the action after he 
 attains the age of twenty-one years ; the time not to extend, how- 
 ever, over six months beyond full age. {E. S. ch. 105, § 12.) And 
 in regard to real actions, the party has ten years to bring his action 
 after coming of age. {lb. ch. 147, § 7.) 
 
 In New Hampshire, if any party entitled to maintain an action 
 for the recovery of real estate be within the age of twenty-one 
 years at the time the action accrues, he may bring his action at 
 any time within five years after he comes of age ; and an infant 
 may commence a personal action at any time within two years 
 after arriving to the age of twenty-one years. {R. S., ch. 181, §§ 
 2,8.) 
 
 In the State of Vermont, any person who is an infant at the 
 time his cause of action accrues, may bring his action within the 
 time limited after he comes of age. {R. 8. 1863, tit. 18, ch. 63, § 19.) 
 
 In the State of Massachusetts, a person who is an infant at Ae 
 time a real action accrues in his favor, may bring his action at any 
 
LACHES OF INFANTB. 165 
 
 time within five years after coming of age ; and in case of personal 
 actions, he may bring his action within the time limited after he 
 attains the age of twenty-one years. {Gen. Stat. 1860, ch. 155, § 6.) 
 
 In Connecticut, an infant has five years after coming of age to 
 bring a real action, four years after coming of age to bring an 
 action on a bond or contract under seal or promissory note not 
 negotiable, and three years after coming of age to bring his action 
 of account, debt on book, simple contract, or of assumpsit founded 
 upon implied contract, or upon any contract in writing, not under 
 seal, except promissory notes not negotiable ; and in regard to all 
 other actions, infants do not seem to be exempted from the operation 
 of the statute of limitations. {E.S. 1866, tit. 39, §§ 1, 2, 3'.) 
 
 In the State of Rhode Island, infants may maintain a personal 
 action within the time limited for prosecuting it after coming of age ; 
 and in actions for quieting possession and avoiding suits at law 
 they have ten years after coming of age to bring their suit. {Rev. 
 Za20sl844,i>. 221, §3.) 
 
 In the State of IS&w York, if a person entitled to commence 
 any action for the recovery of real property, or to make an entry 
 Gv defense founded on the title to real property, or to rents or ser- 
 vices out of the same, be at the time such- title shall first descend 
 or accrue within the age of twenty-one years, the time during 
 wbich his infancy continues will not be deemed any portion of the 
 time limited for the commencement of such action, or the making 
 of such entry or defense; but the action may be commenced^ or 
 entry or defense made, after the period of twenty years limited, 
 and within ten years after the infancy shall terminate, or after the 
 death of the person entitled who may die during such infancy; 
 and no action can be commenced, or entry made, after that 
 period. {Code of Procedm/re, § 88. 5 Stat, at La/rge, 25.) In 
 actions other than those for the recovery of real property, if the 
 person entitled to bring the action, except for a penalty or forfeit- 
 ure, or against a sheriff or other oflBcer for an escape, be, at the 
 time the cause of action accrued, within the age of twenty-one 
 years, the time of such disability is not a part of the time limited 
 for the commencement of the action, except that the period within 
 which the action must be brought cannot be extended more than 
 one year after the disability ceases. {Code of Procedure, § 101. 
 5 Stat, at Large, 28.) And it has been held that to entitle a per- 
 son to the protection of this proviso in the statute of limitations 
 
166 LAW OF IKPANCY. 
 
 in favor of infants, the infancy and the bringing of the suit 
 within the time limited after disability removed, must be specially' 
 pleaded. {Hyde v. 8tone, 7 Wend. B. 354.) Infants are not 
 exempt from the operation of the limitation in actions for a penalty 
 or forfeiture, or against a sheriff or other officer for an escape; 
 and no person can avail himself of a disability unless it existed 
 when his right of action accrued. Code of Pro., §§ 101, 106. 
 5 Stat, at Large, 29.) 
 
 § 115. In the State of itfew Jersey, if any person having a right 
 or title to lands, tenements, or other real estate, at the time such 
 right or title first descended or accrued, shall be within the age of 
 twenty-one years, then such person or his heirs may, notwithstand- 
 ing the limitations provided, commence or sue forth his action 
 within five years after his full age ; and in respect to all other 
 actions, the time during which a person may be an infant, or within 
 the age of twenty-one years, will not be taken or computed as part 
 of the time limited for the commencement of the action. {R. S. of 
 1847, ch. 8, § 4. Digest of 1855,^. 433, § 2 ; ^. 435, § 10 ; jp. 486, 
 §§ 13-17 ;i?. 438, §24.) 
 
 In Pennsylvania, persons entitled to a personal action, who afb 
 within the age of twenty-one years at the time the cause of actioD. 
 accrued, are at liberty to bring their action within the period 
 limited, after their coming to or being of full age, as other persons ; 
 and with respect to real actions, if the cause of action accrue while 
 the person entitled to the action is within the age of twenty-one 
 years, then such person and his heirs may bring his or their action 
 at any time within ten years next after attaining full age, and no 
 time after such ten years. (PurdorHs Dig. of 1861, jp. 659, §12 ; 
 f. 656, § 19.) 
 
 In the State of Delaware, actions in respect to real property 
 may be brought by any person who is an infant at the time the cause 
 of action accrues, at any time within ten years after the disability of 
 infancy has ended ; and with regard Xo personal actions, if the 
 person entitled to the action is under the disability of infancy at 
 the time of the accruing of the cause of action the statute of 
 limitations is no bar to the action during the continuance of the 
 disability, nor until the expiration of three years from the removal 
 thereof {Code of 1852, Ut. 18, ch. 122 § 9 ; ch. 123, § 13.) 
 
 In the State of Maryland, if the person entitled to .an action, 
 real or personal, be an infant at the time the cause of action accrue 
 
LACEES OF INFANTS. 167 
 
 he is at liberty to bring his action within the time limited after 
 coming to or being of full age. (1 Maryland Code, art. 57, § 2.) 
 
 In the State of Yirginia, an infant has ten years after coming 
 of age to prosecute his action as to real property ; and with respect 
 to personal actions the statute of limitations does not run against 
 an infant at all, but he is at liberty to bring his action within the 
 period limited after coming to or being of full age, except that in no 
 case can an action be brought after twenty years from the coming 
 of age of the party. {Revised Code, 1849, tit. 45, ch. 149, §§ 3, 15.) 
 
 In North Carolina, the infant has three years after full age to 
 prosecute a real action ; and as to personal actions, except actions 
 for penalties, the period of limitation does not operate at all 
 against an infant. {R. 8. 1855, ch. 65, § 9.) 
 
 In South Carolina, an infant has ten years after coming of age, 
 to prosecute a real action ; and it is further provided that the statute 
 of limitations shall not defeat the rights of minors, unless the right of 
 their ancestors was barred by the statute before the right accrued 
 to the minor. {Act of 1824. And vide Gibson v. Taylor, 3 
 McCorWs R. 451. Rose v. Daniel, 3 Brev. R. 438.) In the State 
 of Georgia, an infant is not affected by the statute of limitations at 
 all, but he has the full time to bring his action after coming of age. 
 {CobVs Gen. Stat. 1859,^. 206, § 397.) 
 
 In Florida, the statute of limitations in regard to real actions is 
 extended ten years after an infant comes of age ; and as to personal 
 actions the statute does not run against infants at all. {Thompson's 
 Dig. tit. 5, ch. 1, § 1, subd. 2, and § 2, svJ)d. 1.) 
 
 In the State of Alabama, the time during which a person may 
 be an infant is not to be taken or computed as a part of the time 
 limited for bringing actions either real or personal, though the 
 action must be brought within three years after full age. {Code, 
 1852, ch. 21, § 248.) 
 
 In the State pf Mississippi, the statute of limitations does not 
 run as to infants in any case. {Allen and Yam. Hoesen^s Dig. 1839, 
 ch. 73, § 7. RutchynsorHs Code. 1848, ch. 57, § 7. In Louisiana, 
 besides the prescription declared with respect to land, there is 
 another of four years, which runs against a minor after he comes 
 of age, as to any real estate alienated by the tutor in cases not 
 prescribed by law ; and it is provided further by the statute that 
 minors cannot be pi'escribed against. '{Angell on lA/m. App. 113> 
 114. dv. Code of La. art. 3488.) 
 
168 LAW OF mFANCY. 
 
 In Tennessee, a person wlio is an infant at the time his cause of 
 action accrues for the recoviery of real estate, or for any other 
 cause, has three years after coming of age to prosecute his suit. 
 {Comp. Laws 1858, ch. 2, § 2757.) 
 
 In the State of Kentucky, real actions may be prosecuted by 
 infants at any time within ten years after they come of age ; and 
 in personal actions, the statute does not run against minors at all. 
 (2 B. Such. 63. art. 1 §" 8, art. 4, § 2. MacJwr y. May, 4 Mbb's 
 B. 43.) 
 
 In Missouri, infants have three years after coming of age to 
 bring a real action, notwithstanding the statute of limitations ; and 
 as to personal actions the statute does not run agaiast infants at all. 
 {R. 8. 1865, ch. 191, §§ 4, 14.) 
 
 In Arkansas, infants have five years to prosecute a real action 
 after coming of age ; and as to personal actions, infants are exempted 
 from the operation of the statute. {Dig. 1858, p. 752, § 16.) 
 
 And in the State of Texas, minors are allowed two years after 
 maturity to prosecute their claims to real estate ; and in aU other 
 cases the statute of limitations does not run against them. {Pas- 
 cJmVs Annotated Dig. 1866, a/rts. 4617, 4621.) 
 
 § 116. In the State of Ohio, a person who is an infant at the 
 time his action accrues for any real estate, may bring his action at 
 any time within ten years after attaining full age-; and the statute 
 of limitations does not run against minors with respect to any 
 other action, except for penalties and forfeitures. (2 B. S. 1860, 
 ch. 87, § 19.) 
 
 In the State of Indiana, infants are not aflPected by the statute 
 of limitations during infancy. (2 B. S. 1862, § 586.) 
 
 In the State of Illinois, the statute of limitations does not run 
 against infants at all. {Bevised Laws 1858, p. 746, § 7 ; j>. 747, §§ 
 1,2;^. 750, § 10 ; ^. 752, § 14.) In Michigan, if the person iirst 
 entitled to make entry upon lands or bring any action for the 
 recovery thereof, shall die within the age of twenty-one years, and 
 no judgment shall have passed against him with respect to such 
 lands, the entry may be made or the action brought by his heirs or 
 any person claiming from, by or under him at any time within ten 
 years after his death, notwithstanding the twenty-five years' limita- 
 tion prescribed by the statute may have expired; and with respect 
 to personal actions, the statiite does not run against minors at all. 
 (2 . B. S. ch. 165, § 6.) 
 
LACHES OF INFANTS, 169 
 
 In the State of "Wisconsin, the statute of limitations as to infants, 
 is extended, in all real actions, five years after they come of age, 
 and, in personal actions, one year after they come of age, except 
 that the statute runs against infants the same as to adults in actions 
 for penalties and forfeitures, and against sheriffs. {E. S, 1858, eh. 
 138, §§ 13, 29.) 
 
 In the State of Iowa, the statute of limitations with respect to 
 actions for the recovery of real property, does not apply to minors 
 BO far as to prevent them from having an action at least one year 
 after attaining their majority, within which time they may com- 
 mence such actions. {JRev. Laws, 1860, ch. 116, § 274 Y.) In Cali- 
 fornia, if a person is an infant at the time he is entitled to make an 
 entry upon lands, or bring his action for the recovery of real prop- 
 erty, the time during which such disability continues -will not bo 
 deemed any portion of the time in the act limited for the com- 
 mencement of the action, or making his entry or defense, but the 
 action may be commenced, or -entry or defense made, within 
 the period of five years after such person comes of age, or after his 
 death, if he die while an infant ; and in regard to all other actions, 
 infancy is excluded from the time limited for the commencement 
 of the action. (2 Gen. Loads, It 4358, 4365.) In the State 
 of Minnesota, it is provided that if any person entitled to bring 
 an action for any cause, except for a penalty or /forfeiture, or 
 against a sheriff or other oflScer for an escape, be at the time 
 the cause of action accrued, within the age of twenty -one years, the 
 time of such disability is no part of the time limited for the com- 
 mencement of the action, except that the period within which the 
 action must be brought, cannot be extended more than one year 
 after the infant becomes of age. {Convp. JStat. 1858, ck. 60, § IT.) 
 In the new State of Nebraska, the statute of limitations does not 
 run as to infants, except as to actions for a penalty or forfeiture. 
 {B. S. 1866, part 2, Ut. 2, § 17.) The law on this subject is the 
 same in Kansas. {Oomp. Laws 1^62, ch. 26,^ 2G, p. 128.) In the 
 State of Oregon, the statute of limitations does not run against 
 infants, except for a penalty or forfeiture, or against a sheriff or 
 other officer for an escape, except that the time for bringing a 
 personal action will not be extended by reason of such disability 
 more than one year after the disability ceases. {Gen. Laws 1845, 
 1864. Civ. Code, ok 1, § 17.) 
 
 22 
 
170 LAW OF INFANCY. 
 
 § 117. The general rule is that, if infancy is excepted in any 
 respect by the statute of limitations, the fact of infancy and of 
 bringing the action within the proper time after the disability 
 expires, must be specially pleaded and the burden of proof is upon 
 the party pleading it. {Jackson v. Whitlock, 1 Jofms. Cases, 213. 
 Hyde v. Stone, 7 Wend: B. 334 St. John v. Turner, 2 Yern. Ch. 
 E. 419. (MJiovn v. Bawd, 3 A. K Marsh. \_Ey.'\ R. 169.) 
 
 In , some of the American States adverse possession to a minor 
 does not operate against his rights, and although the statute began 
 to run against the ancestor, yet if the lands descend to an infant 
 the statute stops running and the infant has the time allowed by 
 law, to bring his action after arriving at full age. This, however, 
 depends upon the provisions of the statute upon the subject ; and 
 such is the rule in Kentucky, Georgia and South Carolina, and 
 some others of the states. {Machvr v. May, 4 BibVs B,. 43. Smir 
 ney v. Overton, Ih. 4A5. South v. Thomas, 7 Monroe's B. 59. Gii- 
 son V. Taylor, 3 MoCord^s [8. C] B. 451. Coohe v. Wood, 1 ih. 
 139. Bose V. Daniel, 3 Brevard '« [/S C] B. 438. Inoin v. Morell, 
 Dudley's [Geo.] B. 72.) The rule is different in the State of New 
 York, and in several others of the states. {Jackson v. Moore, 13 
 Johns. B. 513. .Fleming v. Griswold, 3 Sill's B. 85.) 
 
 § 118. The principle has long been established that the statute 
 of limitations does not bar a trust estate, and that as between the 
 trustee and cestui que trust, a trust cannot be reached by the 
 statute of limitations. This doctrine was settled over fifty years 
 ago in the English court of chancery, and seems to be admitted 
 ever since. {Chohnondeley v. Clinton, 2 Merivale's B. 93.) The 
 principle is recognized in this country, but both here and in 
 England the doctrine holds good only in the case of a direct trust, 
 and as between the cestui que trust and trustee ; and not between 
 the cestmi que trust and trustee on the one side, and a third party 
 on the other side. {Earl of Huntingdon v. Countess of Huntmgdon, 
 3 P. Wms. B. 310. Lyon v. Marclay, 1 Watt's [_Pa.] R. 275. 
 White V White, 1 Md. Ch. Dec. 53. Thomas v. BrinsfieU, 7 Geo. 
 B. 154. But vide Payne v. Bullard, 23 Miss. B. 88.) It is in this 
 sense that we must understand the dictum of Sir J. Jekyll, master 
 of the rolls in the English chancery, that the forbearance of trus- 
 tees in not doing what it was their office to have done shall in no 
 sort prejudice the cestui que trust. {Lechmere v. Carlisle, 3 P. 
 Wms. B. 215.) Lord Somers once seems to have decided that an 
 
LACEES OF INFANTS. 171 
 
 infant cestui que trust cannot be barred by the laches of his trustee. 
 {Allen V. Sayer, 2 Yern. H. 368.) Of course an infant is not any 
 more than an adult, barred by lapse of time when his trustee has 
 aliened to a person having notice of the trust. ( Yide Kenady v, 
 BcH/y, 1 Soh. <& Lef. R. 379.) 
 
 In a learned and elaborate opinion of Chancellor Kent, in the 
 late court of chancery of the State of New Toi'k, the principle is 
 laid down, that the statute of limitations is a good plea in equity, 
 as well as at law ; that those trusts which are mere creatures of a 
 court of equity are not within the statute of limitations ; and that 
 as long as there is a continuing and subsisting trust, acknowledged 
 or acted on by the parties, the statute of limitations does not 
 apply ; but if the trustee denies the right of his cestui que trust, 
 and the possession of the property becomes adverse, lapse of time, 
 from that period, may constitute a bar in equity ; but other trusts, 
 which are the ground of an action at law, are not exempted from the 
 operation of the statute. {Kane v. JBloodgood, 1 Johns. Oh. H. 90.) 
 And in a case in the English court of chancery. Lord Macclesfield 
 expressed the opinion, " that when one receives the profits of an 
 infant's estate, and, six years after his coming of age, he brings a 
 bill for an account, the statute of limitations was a bar to such 
 suit, as it would be to an action of account at common law ; for this 
 receipt of the profits of an iufant's estate was not such a trust as, 
 being a creature of a court of equity, the statute shall be no bar to, 
 for he might have had his action of account at law, so shall he be of 
 his remedy in this court ; and there is no sort of difference in reason 
 between the two cases." {Lockey v. Lockey, Free, in Ck. 518.) 
 
 "When an administrator in trust for an infant has a right to sue 
 during infancy, and does not sue within the time prescribed by the, 
 statute of limitations, the infant is barred of his remedy against 
 the debtor. ( Wych v. JEast India Company, 3 P. Wms. H. 309.) 
 And if trustees appointed to protect the inheritance neglect their 
 duty, and suffer an adverse possession of twenty years to be held, 
 the statute of limitations is a bar to the cestui que trust. ■- {Pent- 
 land V. Stokes, 2 Ball & Beatty's R. 68. Hovenden v. Lord Annesley, 
 2 Soh. & Lef. R. 607.) "When the statute makes no saving or 
 exception, the court of chancery will make none in favor of infants. 
 {Demarest v. Wyncoop, 3 Johns. Ch. R. 146.) 
 
 It has been held in Yermont that the statute of limitations is not 
 applicable to the account of a guardian against his ward while the 
 
172 ZfAW OF INFANCY. 
 
 relation continues to exist ; and that, after the relation terminates, 
 lapse of time will hot bar the guardian's claim when the delay is 
 satisfactorily explained by the circumstances of the case. (Kiiriball 
 V. Ives, 17 Vt. B. 430.) In Massachusetts, the statute will run 
 against an infant whose claim is involved in the estate of a deceased 
 under administration. {Hall v. Bwmstead, 20 Pick. R. 2.) 
 
 § 119. An infant cannot take advantage of his infancy to excuse 
 the non-assertion of his right under an executory agreement, when 
 an immediate assertion of his rights and performance of his 
 part of the contract are essential to the interest of the other party. 
 {McPherson on Inf. 541.) 
 
 An infant is bound by a judgment or decree, regularly entered 
 against him, the same as a grown person ; but he can dispute it as 
 well as a grown person, on the ground of fraud, collusion or error. 
 {Ralston v. lahee, 8 GlarKs \Iowd\ R. 17. Jeffrie v. Rdbedeam, 
 3 Miss. R. 33.) There can, however, be no valid decree against an 
 infant by default, or on answer by guardian ; but he must have a 
 day in court, after he comes of age, to show error in the decree. 
 But a decree of sale against an infant is valid. {Mills v. Dennis, 
 3 Johns. Ch. R. 367. Thayer v. Lome, W(ilker''s Oh. B. 200. Pope 
 V. Lemaster, 6 Litt. \Ky.] R. 77. Beebe v. Bullitt, 4 BiWs [Ky!\ 
 B. 11. WilTmisonh Admrs. v. OJmer's Bep's, 4 H^i. <& Munf. 
 [ Fa.] B. 450. Olase v. Drayton, 1 Desscm. [S. C] B. 109, 125. 
 Wilkinson v. Witkinson, Ih. 201. Sarlen v. Barnes, 5 Dana^s 
 [Ky.] R. 223. Chalfant v. Monroe, 3 ib. 35. Morris v. Trur 
 man, 1 Hoff. Ch. R. 178.) 
 
 An account taken before a master, upon the application of the 
 executrix, when no suit is pending, is not binding on infant heirs ; 
 but if the father and guardian of the infants attended on their 
 behalf, the account will be opened only to correct errors to be 
 pointed out by them. {Evertson v. Tappan, 5 Johns. Ch. B. 511.) 
 
 An answer filed by an infant may be amended on motion when 
 he attains full age. ( Wi/nston v. Canvpbell, 4 Hen. <& Mvmf. [ Fff.] 
 B. 477.) 
 
 Infants cannot be prejudiced by the misstatement or omissions 
 of their guardian in his answer to a complaint filed against them. 
 The court will give judgment according to the facts of the case. 
 Lenox V. Wotrele, 1 Hmnph. \Tenn.\ B. 251. James v. Jwtms, 4 
 Paige's Ch. B. 115.) And the facts which will entitle the plaintiff 
 to a judgment must be established against infants by legal proof. 
 
LACHES OF INFANTS. 173 
 
 Neither the guardian ad litem, or any other person, has power to 
 waive this proof nor consent to a judgment without it. This is a 
 rule of law which cannot be evaded ; and the guardian's responsi- 
 bility to the infant is no answer to the objection. {I^tchfield y. 
 Roswell, 5 How. Pr. R. 341, 345.) 
 
 The interest of an iafant will not be affected by the recitals in a 
 deed made diu'ing infancy, when an adult naight be bound by them. 
 {Milner v. Harewood, 18 Ves. B. 274.) 
 
 The court of chancery is guardian of infants, and will not allow 
 them to be prejudiced by acts in their infancy, especially in trans- 
 actions with the executors of their ancestors' estate. {Stooto v. 
 Stocto, 1 Dessau. [S. C] R. 201.) The court will protect the right of 
 infants, when they are manifestly entitled to something, although 
 their guardian ad litem neglects to claim it in their behalf. {Ste- 
 phens V. Van Buren, 1 PaAg(}s Ch. R. 479.) 
 
 In an action against an infant, nothing will be taken as admitted, 
 but complete proof will be required. {TvMle v. Garnett, 16 III. R. 
 354. Jam£s v. Jamies, 4 Paige's Ch. R. 115. Stephenson v. Ste- 
 phenson, 6 II. 353. Site v. Bite, 2 Rand. [ Va.] R. 409.) 
 
 In an action on a. judgment recovered in another state, without 
 actual notice to the defendant in the original suit, he m^y defend 
 on the ground that the note on which the judgment was founded 
 was given when he was an infant. {Bartlet v. Knight, 1 Mass. 
 R. 401.) 
 
 The acts and admissions of a minor, relative to the subject-mat- 
 ter of a suit, are admissible in evidence against him. The infancy 
 of the party may be shown to obviate their effect, and the weight 
 to be attached to them must depend upon the circumstances of the 
 case. {Samblett y. Bamblett, 6 ]V. H. R. 333.) 
 
 An infant defendant may take any objection, on the hearing, to 
 the relief sought, whether the objection was apparent on the bill 
 or came out in the testimony. An infant in this, respect is favored 
 above that of an adult. {Jones v. St. John, 4 Sand. Ch. R. 208.) 
 Though an infant defendant consent to be examined as a witness 
 for a co-defendant, if his testimony is against his own interest, the 
 court will suppress the deposition. {Moore v. Moore, 4 Sand. Ch. 
 R. 37.) 
 
 § 120. A decree uprooting a valid trust for infants, upon the. 
 ground of a purchase of the land by the complainant, in good faith, 
 and without notice of the trust, is erroneous if it do not give them 
 
174 LAW OF INFANCY, 
 
 a day in court after coming of age ; and the error may be corrected 
 either by original bill or bill of review. ( Wright v. Miller, 1 
 Sand. Ch. E. 103. 8. C. 4 Seld.. B. 9.) However, an infant who 
 has a day given him, after he comes of age, to show cause against 
 a decree, cannot assail thq decree in any mode he pleases by that 
 day, but must first obtain the leave and direction of the court in 
 the premises. {Field v. Williamson, 4 Sand. Ch. B. 613.) 
 
 In case of partition of real estate, when actual partition is made, 
 the infant defendant may, imder certain circumstances, come in 
 after his majority and have the decree opened. _ But if the land is 
 sold, he has no such privilege, if the judgment ordering the sale 
 was regular, but his right is cut off by the decree and sale, and he 
 is concluded. {Vide Farrom, v. Sherwood, 17 N. Y. B. 227.) 
 But infant owners will be relieved by a resale when their property 
 has been sacrificed through the misapprehension or negligence of 
 their natural or statutory guardians, on condition that a fall indem- 
 nity is offered to the purchaser. And whenever, in a suit or pro- 
 ceeding in the supreme court, or in any court of equity, the fact 
 appears that the rights of infant parties have been invaded, or are 
 in danger of being prejudiced, the court ought, without waiting to 
 be specially invoked to do so, to exercise its protective jurisdiction 
 in behalf of such infant parties. Although no application for a 
 resale is made in behalf of infants, yet such an order may be made 
 on the court's own motion, in its capacity of universal guardian to 
 all infants, and by virtue of its obligation to exercise a general 
 superintendence and protective jurisdiction over their persons and 
 property. {Lefevre v. Laraway, 22 Barb. B. 167.) 
 
 CHAPTEK XI. 
 
 « 
 
 FOE WHAT AN INFANT IS LIABLE WHEN LIABLE CIVILLT — WHEN 
 
 CEmiNALLT THE EtTLE IN SUCH CASES. 
 
 § 121. An infant may be intrusted with certain offices, and it 
 follows as a legitimate result that he must be liable to the conse- 
 quences of his acts in the exercise of those offices. This is 
 especially the rule when the office held by the infant is of a pubhc 
 
LIABILITY OF INFANTS. 175 
 
 nature. An infant, as we have seen, may act as a jailer {ante, 
 § 78), and if, while he is keeper of the jail, he should let a prisoner 
 escape out of execution, he would be liable to an action for the 
 damage, the same as an adult. ( Vide Kirig v. Dillistdn, 3 Mod. 
 JR. 222.) So an infant will be liable civilly for his negligence in 
 any office which he may legally hold. Should he be permitted, 
 however, to hold an office of pecuniary trust, and be guilty of 
 negligence with respect to the moneys placed in his hands, those 
 to whom the money belongs would have no remedy, unless the 
 infant officer should be proved guilty of a tortious conversion of 
 the money. This is assigned as a reason why an infant cannot 
 hold an office of pecuniary trust, or where it is a part of the duty 
 of the incumbent to receive money. {Glcmdge v. Eoelyn, 5 BarTvw. 
 <& Aid. a. 81.) "We have seen that an office in a parkship may be 
 given or descend to an infant {ante, § 78) ; but if the condition in 
 law annexed, to the office, which is skill, be not observed, the office is 
 forfeited. {Ki/ng v. Dilliston, sujpra. Stowel v. Zouch, PlowdovUs 
 Ji. 375.) And we have seen that in some instances an infant may 
 administer at seventeen, but he cannot commit a " devastavit " until 
 he is twenty-one. {Vide Whiimore v. Weld, 1 Vern. R. 328.) But 
 an infant executor or administrator would be liable for a fraudulent 
 execution of his trust. {Loop v. Loop, 1 Vt. JR. 177.) 
 
 § 122. In all cases where an infant is allowed to make a binding 
 contract, or perform a valid act, he is liable to an action for non- 
 performance or default, the same as an adult. Thus, an infant 
 may make a valid contract for necessaries, and having contracted 
 for them, he may be sued for their value. So an infant is liable 
 to an action upon his recognizance to appear and answer a crimi- 
 nal charge, and upon any other bond or obligation required of him 
 by law. So, also, if a minor take a lease of land, and enter and 
 continue in possession of the claim by rent, he is liable to the same 
 process and to the same action as an adult to enforce his contract 
 for rent. {Newry & EnnishiUen Ba^Vway v. Ooonibe, 3 Exch. B. 
 669. NortJwoestern Railwan/ v. McMichael, 5 ib. 126.) If he 
 wishes to exonerate himself from the obligation to pay rent, all 
 he has to do is, to disclaim, which, it seems, he may do at any 
 time before , the rent day comes, and be relieved from liability for 
 the past Occupation. (/5.) 
 
 In an action against an adult for the use of lands occupied by 
 him during minority, decided by the English court a hundred 
 
176 LAW OF INFANCY. 
 
 years ago, Tates, Justice, said: "If the defendant was still an 
 infant, I should think this action maintainable. Debt, perhaps, 
 ■would not He, because an infant cannot wage his law; but 
 assumpsit, I think, would lie, as the infant continued to occupy 
 and enjoy the estate. In Ki/rten v. JEllioU, (2 BuLsb. R. 69,) the 
 plaintiff recovered against an infant the rent upon a lease made to 
 him ; and it is there said, ' if a lease be made to an infant, and he 
 occupies and enjoys, he shall be charged with the rent.' " {^Emd/yn 
 V. Chichester, 3 Burr. R. 1Y19.) This was under the old copy- 
 hold system, but the principle is recognized at the present day. 
 In all cases where the law absolutely requires of an infant any 
 duty or act, the same may be enforced against the infant by the 
 same process as against an adult. And whenever any disability, 
 enacted by the common law, is removed by the enactment of a 
 statute, the competency of an infant to do all acts within the pur- 
 view of such statute is as complete as that of a person of full 
 age, and, of course, in such a case, the infant is liable in the same 
 manner as an adult. {United States v. Bcdniridge, 1 Mason's 
 
 R. n.) 
 
 It seems that if an infant enter into a contract for the sale or 
 pui'chase of an estate, or for any other purpose, he cannot enforce 
 it in equity, nor can it be enforced against him, for the reason that 
 it is not mutual. (G(ypes v. Mutton, 2 Russ. R. 357. Flight v. 
 BoUand, 4 ib. 298.) 
 
 § 123. The privilege of infancy is purely protective, and infants 
 are liable for torts and injuries of a private nature, and for all 
 wrongs committed by them, the same as adults. If the tort be 
 committed with force, the infant is liable at any age, for in case of 
 civil injuries with force, the intention is not regarded, for, in such a 
 case, a lunatic is as liable to compensate in damages as a man in 
 his right mind. {Reeves' Bom. Rel. 256. Baxter v. Brush, 29 Yt. 
 R. 465. Scott V. Watson, 46 Mame R. 362.) The act, however, must 
 be wholly tortious, in order to charge the infant ; and it is well 
 settled that a matter arising ex contractu, though infected with 
 fraud, cannot be changed into a tort, in order to charge the infant 
 in trover or case, by a change in the form of the action. {Jen- 
 nings V. Rundell, 8 Term R. 337. West v. Moore, 14 Vt. R. 4A7. 
 Merrill v. Aden, 19 ib. 506. Brown v. Durham, 1 Root's B. 273 
 The People v. Kendall, 25 Wend. R. 399.) "When the injiiry com- 
 plained of happened through the unskillfulness, want of knowledge, 
 
LIABILITY OF INFANTS. 177 
 
 discretion and judgment of tlie party, infancy ■will be a bar to the 
 action. {Campbell v. Stokes, 2 Wend. R. 137.) 
 
 If an infant be trusted witb personal property, for the purpose 
 of transportation from one place to another, and neglects to perform 
 ■his contract, but consumes or wastes the goods, he ig(,not liable on 
 his contract, under a plea of infancy, but an action will be sus- 
 tained against him for the wrong in consuming and wasting the 
 property. {Fumis v. Smith, 1 Boll. Abr. 530.) So if an infant 
 receive the goods of another, for the purpose of conferring labor 
 upon them (the fact of infancy being unknown to the bailor), and 
 subsequently refuses to return them on demand, he is liable to an 
 action of detinue or trover for the conversion. {Milk v. Graham, 
 1 iVew. R. [4 Bos. <& Pull.'\ 140.) In this last case. Sir James 
 Mansfield, Chief Justice, remarked that the defendant "fraudu- 
 lently received the goods, concealing the circumstances of his 
 minority, and then set up his minority as a defense against tlie 
 plaintiff's just demand. The goods being wrongfiiUy in the 
 defendant's hands from the beginning, without any valid contract 
 between him and the plaintiff^ it seems that they must be con- 
 sidered in the same situation as if the defendant had, at first, 
 wrongfully gotten possession of them without pretense of bail- 
 ment." And, in conclusion, " ib is sufficient to say, that the goods 
 did not come to the defendant under what could properly be called 
 a bailment. They came into his hands by fraud, and the right of 
 the plaintiff must be considered just the same as if the goods had 
 come to the defendant's hands without pretense of right on 
 delivery." An infant is liable for money received by him as an 
 apprentice, which he embezzles or misapplies, and this, even, in an 
 action in form ex contractu, it being, in substance, an action ex 
 delictu, and the same rule of law applies. {Bristow v. JEastman, 
 1 Esp. R. 172.) 
 
 § 124. When personal property is committed to an infant as 
 supercargo, and through his carelessness and negligence the prop- 
 erty is wasted, and the infant willfuUy disobeys instructions with 
 respect to the property, by which the owner sustains damage, the 
 owner has an action against the infant for the tort, though not upon 
 the contract for a breach of instructions. ( Vasse v. Smith, 6 Oranoh. 
 B: 226, 239.) Still, the plaintiff will not be permitted to vary the 
 liability of the infant to the prejudice of the latter, by varying 
 the form of his action j and if the transaction between the parties 
 23 
 
178 LAW OF INFANCY. 
 
 was really a contract, the plaintiflp cannot proceed upon it- as for a 
 tort. Thus it has been held that, when goods are delivered to an 
 infant on a contract, by a man who knows of the infancy, the infant 
 cannot be charged for the goods in trover and conversion. {Manley 
 V Scott, 1 Sid.yi. 129.) But this is otherwise when there has been 
 willful misconduct and breach of trust on the part of the infant, 
 and when he fills a situation of confidence. ( Vide Fumis v. 
 Smith, 1 Boll. Air. 530. Bristow v. Eastman, 1 Hsp. R. 172.) 
 
 Infancy is a good defense to an action of assumpsit on the 
 warranty of a horse, for the warranty is, in fact, an undertaking 
 that the horse is sound, and it is said that the plaintiff does not 
 make the case stronger by declaring in tort, and alleging deceit 
 practiced in the course of the contract. {Howlett v. Haswdl, i 
 Caw/p. R. 118. Oeeen v. Greenhanlc, 2 Marshall, 485. 4 Eng. U. 
 L. B. 496.) But in the State of South Carolina it has been held 
 that infancy was no defense to an action ex delicto, for a false 
 warranty in the sale of a horse. {Wood v. Yance, 1 Nott & 
 MoCord^s B. 197. An infant receiving property as bailee is pro- 
 tected if he keeps within the terms of the bailment; but if he 
 departs from the terms under which he receives the property he is 
 liable to an astion as for the conversion of the property. (Town v. 
 Wiley, 23 Vt. B. 355.) Of course an action of trover will lie 
 against an infant for taking property wrongfully, or for converting 
 property bailed to him. {Jerois v. Littlefield, 15 Maine B. 283. 
 Oreen v. Sperry, 16 Vt. B. 390. 
 
 It has been held in the State of 'Hew York, that an act of 
 exploding fire-crackers by an infant, in the public streets of a city, 
 is wrongful and unlawful ; and that if any damage to the persons 
 of individuals, or to property, animate or inanimate, results there- 
 from, the wrongdoer is liable to compensate the sufferer, upon the 
 principle that in an action ex delicto, for an injury to the plaintiff's 
 property occasioned by the wrongful act of the defendant, the 
 infancy of the defendant is no protection. He is as fully liable for 
 the damages sustained as if he were of full age. {ConMiny. Thomp- 
 son, 29 Barh. B. 218.) 
 
 § 126. In the State of Massachusetts, it has been decided that 
 an infant who hires a horse to go to a place agreed on, but goes to 
 another place in a different direction, is liable in trover, for an 
 unlawful conversion of the horse, in the same manner that an adult 
 would be liable under the same circumstances. {Homer v. Thwirig, 
 
LIABILITY OF INFANTS. 179 
 
 3 Pick. a. 492.) And in a late case in tlie Buperior court of the 
 city of New York, the same doctrine is reiterated, wherein it was 
 held that when a person hires a horse to go a fixed distance, and 
 goes beyond it, the act is, in judgment of law, a dispossession of 
 the owner and a conversion of the property to his own use ; and 
 that, therefore, when an action for damages is brought by the 
 owner, as it is founded, not upon a breach of the contract of hiring, 
 but upon the unlawful conversion, infancy is no defense. (Fish v. 
 Ferris, 6 Duerh R. 49.) 
 
 In another case in the late court of errors of the State of New 
 York, where it appeared that an infant took a mare and drove her 
 with such violence and otherwise cruelly treated the animal, as 
 that she died, it was held, that though case would not lie, trespass 
 might be maintained against him ; and the doctrine was laid down 
 that if an infant who has a horse on hire does any willful and 
 positive act amounting to an election on his part to disaffirm the 
 contract of hiring, the owner is entitled to the. immediate posses- 
 sion ; and that if the infant willfully and intentionally injures the 
 animal, an action of trespass lies against him for the tort, 
 {Gamiplell v. Stokes, 2 Wend. R. 137.) 
 
 But it has been held in the State of Pennsylvania, that an infant 
 is not liable in any way for a constructive tort or conversion, in 
 driving a hired horse elsewhere than the contract allowed, or 
 managing him negligently or unskillfully. {Penrose v. Ou/rren, 
 3 Regie's R. 351. Wilt v. Walsh, 6 Watts R. 9.) 
 
 An infant is liable to an action for his acts, by virtue of an 
 office, which by statute he is forbidden to hold, although he may 
 have been regularly elected. In such a case, he may be an officer 
 de facto, so that his acts would be bindin'g upon third persons, in 
 order to prevent the mischief to such as confide in him ; but the 
 office would be void as to the officer himself, though valid as to 
 strangers. (Green v. Bv/rke, 23 Wend. R. 490, 502. Riddle v. 
 Bedford, 7 Serg. & Ramie's R. 386, 392. Parker v. Lwff- 
 lorough, 10 ih. 249. Keys&r v. McKissam,, 2 il. 139, 140.) 
 
 In the court of common pleas of the city of New York, it has 
 been held that a minor whs obtains property upon representations 
 that he is of full age, is liable in an action of tort, either to recover 
 the property back or to recover damages upon the ground that 
 it was wrongfully obtained. {Eckstein v. Frwriks, 1 Daily'' s 
 R. 334.') 
 
180 LAW OF INFANCY. 
 
 A similar doctrine was enunciated by the supreme judicial court 
 of the commonwealth of Massachusetts, fifty years ago; and 
 Putman, J., in delivering the opinion of the court said : " The 
 goods were delivered by the plaintiff to JRand, because he under- 
 took to pay for them, and declared that he was of age. The basis 
 of this contract has failed, from the fault if not the fraud of the 
 infant, and, on that ground, the property may be considered as 
 never having passed from or as having revested in the plaintiff. It 
 is said in Pothier, 1, 13, ' If, with the intention of giving or lending 
 a thing to Pefej*, I give or lend it to Pm<Z, whom I mistake for 
 Peter, the gift or loan is void for want of my consent. The 
 plaintiff supposed that he was dealing with a man of full age, and 
 not with an infant ; and the fraud, which induced the contract, 
 famishes the ground for the impeachment of it.' " {Badger v. 
 Phvnney, 13 Mass. B. 345.) 
 L It is the clear and well settled rule in equity, that in cases of 
 fraud, infancy cannot be pleaded in defense ; and in America there 
 is a strong current of authority in favor of the equity doctrine, 
 that if an infant be guilty of fraud, or fraudulently conceal his 
 age, and thereby obtain money or goods, he is liable for the same. 
 {Story on Con. § 66, note 1 ; and vide Stoolfoos v. Jenkins, 12 Serg. 
 <& PawWs P. 339.) Such acts of an infant, however, as are only 
 voidable, are allowed in equity to be confirmed, but not such as 
 are actually void. A warrant of attorney is of the latter descrip- 
 tion, which the court cannot make good, though there appear 
 circumstances of fraud on the part of the infant. {Saunderson v. 
 Marr, 1 H. Bl. P. 75.) And in Connecticut it has been held that 
 a minor is not liable in equity for fraud in a contract, any more 
 than at law. {Qeer v. Movey, 1 Poofs P. 179.) Mr. Story, in his 
 excellent work on contracts,' says: "If the infant have been 
 guilty of positive fraud, and thereby imposed upon the other 
 party to his injury, he . cannot set up his infancy as a defense to 
 an action for the consideration, although the matter be in con- 
 tract ; for by his fraud he has put himself without the pale of his 
 privilege, and is responsible to the same extent as if he were an 
 adult. Fraud renders a contract void ah initio, and not voidable; 
 and if an infant, by fraudulent representations, therefore, deceive 
 the other party, and thereby induce him to part with his goods, 
 such an agreement will be utterly void, and the infant will be liable 
 in an action of trover for conversion." {Story on Con. § 66.) 
 
LIABILITY OF INFANTS. 181 
 
 § 126, It has been held in England, contrary to the doctrine of 
 some of the American decisions, that an action does not lie against 
 an infant for obtaining a loan by representing himself to be of full 
 age; because the aflBrmation, being by an infant, was void. 
 (johmon v. Pie, 1 Zevinz B. 169. 1 K'O). R. 905, 913. Price v. 
 Jl&witt, 18 Eng. L. <& E^. B. 522, 524.) 
 
 In the supreme court of the State of New Hampshire, a dis- 
 tinction is suggested, that an infant is not liable in case for 
 any fraudulent aflBrmation that makes a part of the contract, as 
 for a fraudulent representation as to the quality of goods ; but 
 that for fraudulent representations anterior or subsequent to the 
 contract, and not parcel of it, he is liable. Upon this principle 
 it was decided that for an affirmation that he is of age, hy which 
 n contract is afterward made with him, an infant is liable in 
 case. {FiUs v. Hall, 9 JST. M. B. 441.) This doctrine would seem 
 to be more fictitious than real, and the case is decidedly condemned 
 in American Leading Cases, where the learned editors say: "This 
 decision, which directly overrules Johnson v Pie, 1 Lerovnz. 169, is 
 clearly unsound. The representation by itself was not actionable, 
 for it was not an injury, and the avoidance of the contract, which 
 alone made it so, was the exercise. of a perfect legal right on the 
 part of the infant. The contract in such a case as Fitts v. Sail 
 forms an essential part of the right of action, and no liability grow- 
 ing out of contract can be asserted against an infant. The test of 
 an action against an infant is, whether a liability can be made out 
 without taking notice of the contract. It is admitted in the. same 
 court that such an affirmation as in Fitts v. Hall does not estop the 
 infant so as to render him liable on the contract {Burley v. Bus- 
 sdl, 10 iT. H. B. 184), which implies that the avoidance of a 
 contract induced by such a representation, is not a froAXciP 
 (1 Am. Lead. Cos. 118.) This reasoning certainly appears plau- 
 sible, and is in substance sustained by the superior court of the 
 city of ]S"ew York, in a case decided in 1851, in which it was 
 held : " It is settled law, that no action as for a deceit, can be main- 
 tained against an infant, even when he has attained his age, 
 grounded upon a false representation of his age." Judge Sandford, 
 in pronouncing the opinion of the court, said : " We believe the 
 law. remains as it was laid down m Johnson v. Pie, 1 Kih. 905, 
 913 {8. (J., on its first argument in 1 Lev. 169), which was an action 
 on the case for a fraudulent representation by the defendant that 
 
182 LAW OF INFANCY. 
 
 he was of full age, whereby he induced the plaintiff to lend him 
 money on a mortgage, when, in fact, he was only twenty years and 
 six months old; and he afterward avoided the mortgage for 
 infancy. After a verdict for the plaintiff, judgment was arrested, 
 on the ground that the action could not be maintained for such a 
 false statement, made by an infant. It is stated in that case that 
 the same point was held the previous term, in the case of Orove v. 
 Ifevil. These decisions have remained the law of England to the 
 present day {MoPherson on Inf. 482), and we are disposed to 
 acquiesce in them as well adapted to maintain the protection which 
 the common law has thrown around infants." {Brown v. IlcCkme, 
 5 Sand. B. 224.) It had, however, been held by the supreme 
 court of the State of New Tork, some eight years before the case 
 of Brown v. McOune was decided, that " an infant who fraudu- 
 lently obtains goods upon credit, with an intention not to pay for 
 them, is liable in tort to the party injured." The representation 
 by the infant was, that he was a person fit to be trusted, and he 
 fraudulently concealed the fact that he was an infant ; and Judge 
 Cowen argued that the infant was liable, both in principle and 
 authority. ( Wallace v. Morss, 5 HilVs B. 391.) 
 
 The same doctrine has been Recognized in several other American 
 cases, and the opposite rule which was laid down in Johnson v. 
 Pie, 1 Kib. B. 905, and in Brown v. McCune, supra, may be 
 regarded as overruled by an overwhelming weight of authority. 
 ( Vide Kilgrove v. Jordan, 17 Tex. B. 349. Norris v. Vance, 3 
 Bich. B. IS'i. Pergin v. SutchUffe, 4 McOord^s Ch. B. 387.) Says 
 Lord Chancellor Cowper : " If an infant is old and cunning enough 
 to contrive and carry out a fraud, he ought to make satisfaction for 
 it." (2 Eq. Ca. Air. 515.) 
 
 It has been held by the supreme judicial court of Massachusetts, 
 that an infant who prevails, on the plea of infancy, in an action on 
 a promissory note given by him for a chattel which he had 
 fraudulently obtained, on his refusal to deliver the chattel on 
 demand, is liable to an action of tort for the conversion of the 
 chattel, although he .had sold it before the demand was made upon 
 him. {Walker v. Davis, 1 dray's B. 506.) In this case a minor 
 got an old man, eighty-five years old, drunk, and then bought his 
 cow of him, and gave him his note for the purchase price, which he 
 defeated by his plea of infancy. The sale might have been avoided 
 by the old man on account of the fraud, and his intoxication when 
 
LIABILITY OF INFANTS. 183 
 
 he made the sale, and the minor, having nullified the sale, was 
 made liable for the conversion of the property, which was right. 
 
 Judge Eeeves, in his remarks upon the law of " Parent and 
 Child," says : " It is laid down as a rule in the elementary writers, 
 that an infant cannot be liable for his fraud in a contract, in a civil 
 action ; and several authorities are cited to prove this position. It 
 seems to me, that this position is destitute of principle. Infants 
 are not liable for their contracts, but may be for their .torts. The 
 contract, and the fraud in a contract, are very distinct things ; on 
 the first he would not be liable, but I cannot conceive of any reason 
 why an infant, who doli capax, and commits an injury by prac- 
 ticing fraud, should not be liable to compensate in damages the 
 person injured." {Heeve's Dom. R^. 259.) 
 
 Whether the mere silence of the infant, as to his age, knowing 
 that the other party believe him an adult, would render him liable 
 for goods purchased and converted by liiin, does not seem to be 
 conclusively settled, although the better opinion is that he would 
 not be liable, if he neither does nor says any thing to induce the 
 belief that he is of full age. It has been held, that, in the absence 
 of any positive misrepresentation, the mere omission of the infant 
 to disclose his infancy, was not such a fraud as would invalidate 
 the contract. {Stillman v. Danoson, 1 De Oex c& Smale's Gh. It. 
 90.) But if a minor purchase property, knowing that the seller 
 believed him to be of full age, and then set up his infancy to avoid 
 payment of the purchase-money, the vendor can reclaim the prop- 
 erty if it be still in the possession of the infant. ( Tide 20 Am. 
 Jur. 265.) 
 
 § 127. Infants are liable to an action for personal injuries and 
 assaults, in the same manner as adults. When the injury is not 
 the eflGect of an unavoidable accident, the person by whom it is 
 inflicted is liable to respond in damages to the sufferer ; and the 
 only difference between an infant and an adult in such a case is, 
 that an injury might probably be considered an unavoidable 
 accident in tlie case of infants which would not be so considered 
 in the case of adults. {Bulhch v. Bdbcock, 3 Wend. B. 391.) 
 
 An infant is liable in an action of trespass for having procured 
 another to commit an assault and battery ; so held by the supreme 
 judicial court of Massachusetts, upon the principle that all persons 
 aiding and- abetting, or counseling and procuring a trespass to be 
 done, are principals, whether present or not. {Sikes v. Johnson,16 
 
184 LAW OF INFANCY. 
 
 Mass. R. 389.) But Mr. Chitty, in his work on pleadings, kys 
 it down, upon the authority of Lord Coke, that an infant cannot be 
 a trespasser by prior or subsequent assent, but only by his own act 
 (1 Chitty on Plead. 1 Am. ed. 86) ; and in Bacon's Abridgment 
 it is said, that an infant cannot be guilty of a forcible entry and 
 detainer by barely commanding one, or assenting to one to his use, 
 because every such command or assent by a person under such an 
 incapacity jis infancy is void. {Bao, Air. Ut. Inf. H.) 
 
 ■ An infant is liable in an action of slander in the same cases as 
 adults, though not until he is doli ca^ax, " capable of mischief," 
 that is, having knowledge of right and wrong. At the age of 
 fourteen he is, in presumption of law, doU cwpax, and at that age, 
 therefore, he would probably, be liable in an action of slander. 
 Reeve's Bom. Rel. 259.) ' 
 
 An action of ejectment may be maintained against an infant. 
 {McCoon V. Smith, 3 HilVs R. 147.) An infant is also liable for 
 continuing a malicious prosecution after attaining his majority 
 commenced during infancy. {Sii/rling v. Adams, 3 Day's R. 411.) 
 
 An infant is not chargeable in aU cases for wrongs done by him. 
 Thus, an infant executor cannot commit a devastavit ; and when 
 letters of administration were granted to an infant, under which 
 she received and disposed of the assets of the intestate, it was held 
 that an account could not be directed of her receipts during her 
 infancy. (^Yide Whilmwre v. Wild, 1 Vem. R. 328. RusseWs 
 Case, 5 CoMs R. 37 a. Kvndma/rsh v. Southgate, 3 Ritss. R. 324. 
 SmMley v. Smalley, 1 JEq. Cas. Air. 6.) 
 
 An infant cannot be made responsible for the negligence of one 
 acting as his agent or servant. A person capable in law of being 
 a principal or master renders himself liable for the want of skill or 
 care of his agent or servant, the relation of such persons being 
 upon the principle of agency. An infant, however, is incapable in 
 law of appointing an agent, and as he cannot create an agency, he 
 cannot appoint a servant, and, therefore, cannot delegate powers to 
 another ; nor can he guarantee or insure the fidelity, care or skill of 
 such other. Such legal incapacity, however, does not exempt him 
 from the consequences of his iortdous acts. In respect to those, he 
 is responsible, if doli capax when the wrong is done. But such 
 tortious acts must be committed by the infant himsdf, or under his 
 immediate view, or by his direction or authority. He cannot be a 
 trespasser by prior or subsequent assent, but an\j for his own ad. 
 
LIABILITY OF INFANTS. 185 
 
 He is not responsible even for his own act, if it occurs through his 
 unskillfulneas and want of knowledge, discretion, or judgment. On 
 these principles an infant devisee is not liable for damages caused 
 by an imperfect fixture upon his estate erected by his ancestor and 
 devisor, though happening to the tenant of the infant after the estate 
 comes into his possession. {Edbbma v. Mount, 33 How. Pr. R. 24.) 
 
 An infant is not liable by the custom of the realm for the loss 
 of goods committed to his care as an innkeeper. {Crosse v. 
 Androes, 1 RoU. Abr. 2.) 
 
 § 128. If, through the negligence of an adult, it happens that an 
 injury is done, without malice, by an infant, the adult, and per- 
 haps also the infant, is civilly liable to the person injured. Thus, . 
 when a man sent for a loaded gun, desiring that the person who 
 was to deliver it should take out the priming, which he did ; the 
 gun, after being delivered, went off by the imprudent act of 
 the child, and wounded a bystander ; the man who sent for the 
 gun was held liable for the damage. {Dixon v. Rell, 6 Maule & 
 Sehoyn's E. 198.) 
 
 It is proper to remark that in all actions in which an infant is 
 liable, the cause of action may be proved in the same manner, and 
 by the same species of evidence, as in actions against an adult. 
 Thus, the confessions of an infant are admissible against him, the 
 same as though he were of age. {Mather v. Clarh, 2 Aik. R. 209. 
 Haile V. Lillie, 3 HilVs R. 149. But vide Lximlay v. Thomas, 26 
 Geo. R. 537.) An infant's confession, however, should be received 
 more cautiously on account of his age. {State v. Ouild; 5, Salst. 
 R. 189, 190.) 
 
 So the remedies against infants, when they are liable, are the 
 same as against adults. Thus, in an action of assumpsit against an 
 infant for' money tortiously taken by him, a debt due to him may 
 be attached by trustee process-, jmder the statutes of Vermont 
 {Elwell V. Martin, 3§ Yt. R. 217) ; and. an infant may be taken in 
 execution on a judgment against him in the sanie cases, as in those 
 of adults. {Dow v. Cla/rJc, 1 Crompt. <& Mees. R. 860.) 
 
 The court has no jurisdiction to discharge from custody an infant 
 in jBxecution for damages in an action of slander. The same rule 
 prevails in this respect, both with infants and adults. {Defries v. 
 Davis, 27 .Eng. O. L. R. 822.) 
 
 It may be proper to suggest that the plea of infancy, when justi- 
 fied by the fact, is honorable and proper, and not discouraged by 
 24 
 
186 ZAW OF INFANCr. 
 
 the courts. {DelafieU v. Tanner, 1 Eng. O. L. E. 436.) But when 
 an action is brought against an infant to recover a fair demand, 
 and infancy is pleaded as the only defense, the plaintiff will be 
 permitted to discontinue without the payment of costs. {V<m 
 Buren v. Font, 4 Wmd. R. 209.) 
 
 § 129, Infants who have attained the years of discretion, are 
 regarded in law as capable of committing crimes as adults and after 
 that period they may be prosecuted and punished for criminal offenses 
 of which they are guilty. "What the age of discretion is, in vari- 
 ous nations, is matter of some variety. The civil law distinguished 
 minors, or those under twenty-five years old, into three stages; 
 infantia, from birth till seven years of age ; jmeritiai, from seven 
 to fourteen; and pubertas, from fourteen upward. The period 
 of pueritia, or childhood, was again subdivided into two equal 
 parts; from seven to ten and a half aetas mfamticB proxima; 
 from ten and a half to fourteen- was aetas pubertaU^ proxiTna. 
 During the first stage of infancy, and the next half stage of child- 
 hood, infam.tME proxvma, they were not punishable for any crime. 
 During the other half stage of childhood, approaching to puberty, 
 from ten and a half to fourteen, they were indeed punishable if 
 found to be doli capaces, or capable of mischief; but with many 
 mitigations, and not with the utmost rigor of the law. During 
 the last stage, at the age of puberty and afterward, minors were 
 liable to be punished, as well capitally, as otherwise. (4 Black. 
 Com.. 22.) 
 
 By the ancient Saxon law, the age of twelve years was estab- 
 lished for the age of possible discretion, when first the understand- 
 ing might open ; and from thence till the offender was fourteen, it 
 was aetas pubertati proxima, in which he might or might not be 
 guilty of a crime, according to his natural capacity or incapacity. 
 This was the dubious stage of discretion ; but under twelve it was 
 held that he could not be guilty in will, neither after fourteen 
 could he be supposed innocent, of any capital crime which he in 
 fact committed. (4 Black. Com. 23.) But as the law now stands, 
 both in this country and in England, the capacity of doing ill or 
 contracting guilt, is not so much measured by years and days, as 
 by the strength of the delinquent's understanding and judgment. 
 For, one lad at ten years old may have as much cunning as another 
 of fourteen ; and in these cases the maxim is, that "mcditia sitpplet 
 mtatem" — "malice supplies the want of age." TJp to the age of 
 
LIABILITY OF INFANTS. 187 
 
 Beyen, however, the law considers a child not possessed of sufficient 
 reason to be accountable or answerable for his acts ; and in Hun- 
 gary, it is said that the date of the birth of the child runs from 
 the date of baptism. The absurdity of this iiction was illustrated 
 in 1866, in a case which occurred in the neighborhood of Presburg, 
 in which a woman was charged with being the receiver of stolen 
 goods. She had been, up to within the six months previous, a 
 Jewess, when she was converted by a priest of the church of Rome. 
 Therefore, the woman, on her trial, made tl^ ingenious plea that 
 she was an infant, not come to the years of discretion, and could 
 not be legally convicted. The tribunal held her defense to be a 
 good one, and acquitted her ! 
 
 § 129a. But the more sensible practice, as before suggested, has 
 been adopted in most civilized countries, not to look so much to 
 the age of the delinquent as to his strength of understanding and 
 judgment ; and yet it is a general rule that infants, who have not 
 arrived to seven years of age, cannot be punished as criminals, for 
 before that age they are not supposed to have a will that can con- 
 cur with a forbidden act, in contemplation of law, and it is only 
 from the age of fourteen that the law holds a person entirely 
 responsible. Under that age infants are prima facie considered 
 unacquainted with guilt, and incapable of crime ; and the fact of 
 guilty knowledge of the prisoner must be distinctly made out by the 
 prosecution. {Rex v. Owen, 19 Eng. C. L. JR. 493. Commowwealth 
 V. McKeagy, 1 AsJvmeacPs [Pa.] R. 248. State v. Aaron, 1 
 Southa^rd's [JST. J.'\ R. 231. State v. DoTierty, 2 Overton's {Tenn.'\ 
 R. 80.) This rule is especially observed and adhered to in capital 
 cases. An infant of tender years cannot be guilty of murder, and 
 when under seven years he will be excused from the guilt and pun- 
 ishment of felony, whatever circumstances proving discretion may 
 appear, for, ex presvmpUone jv/ris, — on account of the presumption 
 of right, he cannot have discretion, and no averment must be 
 received against that presumption. But, if above seven, and under 
 fourteen, years of age, though prima facie not guilty, yet if it 
 appear, by strong circumstances and pregnant evidence, that he 
 had discretion to judge between good and evil, judgment of death, 
 even may be given against him. (Reniger v. Fogossa, Plowdon's 
 R. 19, notef.) In such cases the intellectual capacity of the child 
 may be proved by the testimony of witnesses. {State v. Aa/ron, 
 svpra) But herein the circumstances must be inquired of by the 
 
188 LAW OF INFANCY. 
 
 jury, and, according to the English cases, the infant is not to be 
 convicted upon his confession ; although, in the State of New Jer. 
 sey, a boy of the age of twelve years and five months was con- 
 victed, on his own confession, of the crime of murder and executed. 
 {State V. Guild, 6 Halstead's B. 16.3.) If an infant be indicted 
 under the age of fourteen, and put upon his trial, the petit jury 
 may either find him generally not guilty, or they may find the mat- 
 ter specially that he committed the fact, but that he was xmder the 
 age of fourteen, sciliGet OBtatis, 13 amnorvm,, and had not discretion 
 to discern between good and evil; et non per feUmicm. {Bmg. on 
 Inf. 115.) 
 
 With regard to capital crimes the law is, very properly, more 
 minute and circumspect, distinguishing with greater nicety the 
 several degrees of age and discretion, than in cases of inferior 
 grade ; but if it appear to the court and jury that the ofiender was 
 doU capax, and could discern between good and evil when he com- 
 mitted the offense, he may be convicted and suffer death. Thus a 
 girl of thirteen has been burnt for killing her mistress ; and one 
 boy of ten, and another of nine years old, who had killed their 
 companions, have been sentenced to. death, and he of ten years 
 actually hanged, because it appeared on the trials that the one hid 
 himself, and the other hid the body he had killed, which hiding 
 manifested a consciousness of guilt, and a discretion to discern 
 between good and evil ; and there is an instance, in the seventeenth 
 centuiy, where a boy of eight years old was tried in England for 
 firing two barns ; and it appearing that he had malice, revenge 
 and cunning, he was found guilty, condemned and executed. 
 Thus, also, in the eighteenth century, in England, a boy of ten 
 years old was convicted, on his own confession, of murdering his 
 bed-fellow, there appearing in his whole behavior plain tokens of a 
 mischievous discretion ; and, as the sparing this boy, merely on 
 account of his tender years, might be of dangerous consequence to 
 the public, by propagating a notion that children might commit 
 such atrocious crimes with impunity, it was unanimously agreed 
 by the judges that he was a proper subject of capital punishment. 
 (4 Black. Com. 23, 24.) In the case of rape, the law presumes that 
 an infant under the age of fourteen years is unable to commit the 
 crime, and, therefore, it seems, at common law, he cannot be guilty 
 of it ; but this is upon the ground of impotency, rather than the 
 want of discretion, for he may be a principal, in the second degree, 
 
LIABILITY OF INFANTS. 189 
 
 by aiding and assisting in this offense, as well as in other felonies, 
 if it appear, by sufficient circumstances, that he had a mischievous 
 intent. (1 Holers H. 630.) Although, at common law, a person 
 under fourteen years of age is conclusively presumed incapable of 
 committing rape, yet, in this country, since males often arrive at 
 puberty at an earlier age, the presumption is not conclusive, and 
 may be rebutted by competent evidence. {The People v. Bwn- 
 dolph, 2 Pwrker's Cr. B. 174.) "Without proof of puberty, in such 
 a case, the infant can only be convicted of a simple assault and 
 battery. {Ih. Vide also Commonwealth v. Lanigan, 2 La/uo B. 
 49.) And in Massachusetts and Ohio it has been held . that an 
 infant under fourteen may be indicted for an assault with intent 
 to commit a rape. {Commomjoealth v. Green, 2 Pick. B. 380. 
 Williams v. The State, 14 Ohio B. 222.) But it seems that such 
 indictment will not be sustained in England. {Mdershaw^s case, 
 14 Miff. G. L. B. 367. Phillips^ case, 34 ih. 610. JordarCs case, 
 38 ib. 63.) Nor in New York. {Tlie People v. Bandolph, 
 supra^ 
 
 § 130. When an act is made felony or treason by a statute, it 
 extends as well to infants if above the age of fourteen, as to others, 
 but not to an infant under the age of discretion. (1 Holers B. 706.) 
 That is, this is the rule, unless the statute contains an exception in 
 favor of infants. Said Chief Justice Nelson, in giving the 
 opinion of the court in a case decided by the supreme court of 
 the State of New York : " All the books agree that when an act 
 is denounced as a crime, even of felony or treason, by a general 
 statute, it extends as well to infants, if above years, as to others." 
 {The People v. Kendall, 25 Wend. B. 399, 401.) It has, however, 
 been held that general statutes that give corporal punishment are 
 not to extend to infants ; and therefore, if an infant be convicted 
 of a ravishment of ward, he will not be imprisoned, though the 
 statute of England upon the subject be general. {Stowell t. Zouoh, 
 Plowdon's B. 364.) But this must be understood whpn the cor- 
 poral punishment is, as it were, collateral to the offense, and not 
 the direct intention of the proceeding against the infant for his 
 misdemeanor ; in many cases of which kind, the infant under the 
 age of twenty-one will be spared, though possibly the punishment be 
 enacted by parliament. (10 Petersdorff^s Abridgment, 402, note.) 
 In other words, if the statute punishes corporally an act that was 
 not an offense at common law, or that was an offense, but not 
 
190 ZAW OF INFANCY. 
 
 before punished corporally, and does not constitute it an offense by 
 name, which, by the common law, is punished corporally, an infant, 
 if infants are not named in the statute, will not be punished cor- 
 porally. Tenderness to infants led to this construction of the 
 statutes, that minors should not be ousted of their common law 
 privilege, unless the legislature had expressly declared that they 
 should be. {Eemis Dom. Bel. 258.) 
 
 As a general rule, an infant at any age is not liable for a mis- 
 demeanor which consists in not doing what the law commands to 
 be done, that is to say, for an offense which is a mere non- 
 feasance. {Fostsr, 70.) But when the offense is a notorious breach 
 of the peace, such as a riot, or battery, an infant above the age of 
 fourteen is as liable to suffer fine and punishment for such a mis- 
 demeanor, as a person of full age. {McPherson on Inf. 451.) 
 And in the State of Tennessee in such a case, the property of the 
 infant will be liable for the fine and costs. {Bea/rdsley v. The State, 
 2 Yerg. E. 481.) 
 
 In Alabama it was held,. that an infant between the ages of 
 seven and fourteen is prvma facie incapable of committing a 
 crime ; but if, after allowing due consideration to his age, and to 
 the additional fact that he is a slave, the evidence convinces the 
 . jury beyond a reasonable doubt, that he fully knew the nature and 
 consequences of his act, and plainly showed intelligent design and 
 malice in its execution, he may be convicted of murder. (Qodr 
 frey v. TJie State, 31 Ala. B. 323.) 
 
 A minor may be indicted and punished for obtaining goods by 
 false pretenses against the provisions of the statute of New York, 
 in such a case ; the statute containing no exception in favor of 
 infants. {The People v. Kendall, 25 Wend. B. 399.) And in Eng- 
 land an infant is liable to an indictment for neglecting to repair a 
 bridge, which he is otherwise bound to repair, provided there is no 
 other person against whom performance of repairs can be enforced. 
 It is otherwise, however, when the land of the infant charged with 
 the repair of the bridge is occupied by his guardian. {Bex v. 
 Sutton, 30 Eng. 0. L. B. 279.) 
 
 In England it has been held in general terms that an infant, 
 after he has arrived to the years of discretion, is liable criminally, 
 for permissive waste, for escapes, for perjury, for not coming to 
 church, for cheating with false dice, for batteries and for slanders. 
 {Anonymous, 3 Salh. B. 196.) 
 
ACTIONS BT INFANTS, 191 
 
 § 131. On the trial or examination of an infant for a crime, he 
 may appear and defend himself in person, or by attorney ; and it 
 has been held in Virginia, to be error for the court to assign the 
 infant a guardian, and try the case on a plea pleaded for him by 
 the guardian. ( Word v. The Commonwealth, 3 LeigKs R. ^4:3.) In 
 cases of simple misdemeanor, the infant may not, as a general 
 thing, appear and plead to the indictment personally, though' in 
 cases of felony he niust. 
 
 In case infancy is set up as a defense to a criminal prosecution, 
 the infancy must be proved by competent evidence. The mere 
 opinion of a witness respecting the age of a person, judging from 
 his appearance, unaccompanied by the fact on which the opinion 
 is founded, is inadmissible evidence. {Morse v. The State, 6 Corhn. 
 B. 9.) 
 
 As a general thing, the rule with respect to the indictment, 
 arraigning and trial of infants on charges of crime, is the same as 
 in case of adults. 
 
 CHAPTER XII. 
 
 ACTION IN FAVOK t)F INTANTS HOW INFANTS MUST SUE — ACTIONS 
 
 AGAINST ■ INFANTS HOW INFANTS MUST DEFEND THE PpiVILEGES 
 
 OF INFANTS IN THE COURTS THE GENERAL PKOTECTION AFFOEDED 
 
 INFANTS BT COTJETB OF EQUTTT COSTS AGAINTS INFANTS. 
 
 § 132. It may be laid down as a general rule, that, in all cases 
 personal in their nature, such as assaults, batteries, libels, verbal 
 slander, and other injuries to the person, infants have their action 
 the same as adults, and the same principle with respect to damages 
 and the like applies to them as to adults. So when an infant has 
 been emancipated by his parents he is entitled to his action for 
 personal services in the same manner as though he was of full age. 
 And whenever a party enters into a contract with a minor person- 
 ally, or purchases property of him, or deals with him on his own 
 account, such party must respond to him in an action the same as 
 though he was an adult. So in all cases when an infant has the 
 possession and control of his property, he may bring his action for 
 its. conversion, or any damage or injury to it, the same, as though 
 he was of full age. In a word, when the infant has a just cause 
 
192 LAW OF INFANCY. 
 
 of action he may bring his suit for it, and the personal disability of 
 infancy will in no case deprive him of his right. The only differ- 
 ence between infants and adults with respect to their actions, 
 is in the form of proceeding. The result of the action is the same 
 in both cases. It is said that an infant cannot sue as an informer 
 on a penal statute, because an informer must exhibit his suit in 
 person, and prosecute it either in person or by attorney. {Mg- 
 Pherson on Inf. 356.) 
 
 An infant cesfid que t/r-ust has not generally an action at law, 
 for whisn there are two kinds of estates in different persons, the one 
 equitable and the other legal, the person having the equitable 
 estate must call in aid the legal estate before he can recover in a 
 court of law. ( Vide Shewen v. Wroot, 5 East. R. 132, 137.) But 
 the rule is the same when the oestvA que tfust is an adult ; so that 
 this forms no exception against an infant. 
 
 An action by an infant must be pTosecuted by guardian ovjpro- 
 cTiein a/mi, but always in the name of the infant ; and the suit is 
 the infants to all intents, the same as though he was of full age ; 
 and in an action brought by an infant, as a general rule, the same 
 defense may be interposed as in case of an adult plaintiff. For 
 instance, it is a well settled rule, by repeated authorities, that in 
 actions for negligence the person bringing the action must be/ree 
 from negligence cont/rihutvng to the injury ; and this rule is as 
 applicable to a child six or seven years of age, who may bring the 
 action, as to an adult plaintiff. If the infant in fact becomes guilty 
 of negligence and in consequence thereof suffers personal injury, 
 he is not to take advantage of his own wrong and thereby entitle 
 himself to an action of redress. {Honegsberger v. The Second 
 Avenue Railroad Convpany, 33 How. Pr. B. 193. Martfdd v. 
 Roper, 21 Wend. B. 615.) Although the action is prosecuted by a 
 fprodhein a/mi or guardian, ^eprochein arm. or guardian cannot be 
 considered a party to the suit. {Sinclair v. Sinclair, 13 Mees. 
 & Wels. R. 640, 646. Broken v. HvM, 16 Vt. R., 673.) He is 
 rather an officer of the court, appointed to look after the interests 
 of the infant and manage the suit for him. (/&, and Puchitt v. 
 Stackwell, 12 Mees. c&Wels. R. 779.) 
 
 § 133. When an infant becomes plaintiff in an action the process 
 is sued out in the name of the infant, although, as has been inti- 
 mated, the infant cannot prosecute the action in person. As lie 
 has no power to appoint an attorney, the infant must in aU cases 
 
ACTIONS BY INFANTS. 193 
 
 prosecute Jiis action by guardian or proehein ami. If lie have a 
 guardian he may sue lojprochein ami, unless the guardian dissent. 
 {Thomas v. Dyhe, 11 Vt. E. 273. Ha/rdy v. ScanUn, 1 Miles' 
 [Fenn.'\ R. 87.) So he may prosecute his action hj proohein ami, 
 although he has a mother living ; or, at least that fact would be 
 no cause of abatement. {Trash v. Stone, 7 Mass. B. 241.) 
 
 In Indiana the writs may be in the ordinary form, but the declara- 
 tion must be by guardian or prochein ami, {Bouche v. Byan, 3 
 BiacJcford's B. 472.) In the State of New York, when an infant 
 is a party, whether plaintiff or defendant, he must appear by 
 guardian {Code of Procedure, § 115), and when he is plaintiff he 
 must have a guardian appointed before the action is commenced 
 or the summons issued, {HiH v. Thaeter, 3 How. Pr. 407.) 
 
 Under the present practice in New York it is irregular to com- 
 mence an action in favor of an infant hj prochein wmn, or next 
 friend, as formerly, but it must be by guardian. {HoftadUng v. 
 Teal, 11 JSo^o. Pr. B. 188.) And the complaint must show by 
 proper averments that such guardian was duly appointed, or the 
 pleading will be defective, and may be demurred to and the pro- 
 ceedings quashed. {Hullmt v. Young, 13 How. Pr. B. 413.) 
 
 An infant at common law could sue either by guardian or 
 prochein ami. The old cases say that when he sues pr defends by. 
 guardian, the guardian must have a warrant ; but if he sues by 
 prochein am,i, the prochein ami need not ; but it must appear that 
 both the guardian and prochein ami have been admitted by the 
 court. {Fitzgerald v. Villiers, 3 Mod. B. 236. Young v. Young, 
 Cro. Cases 86.) And it was held that it should be alleged to have' 
 been so in the declaration. {Camlens v. Walters j 1 Im. B. 22i. 
 Swift V. Mtt, 1 Sid. B. 173.) 
 
 By the modern practice, there should be a regular admission of 
 the prochein ami by the court, but the recital of admission in the 
 declaration is a sufficient record and proof of the admission. 
 {Miles V. Boyden, 3 Pich. B. 213. Judson v. Blanchard, 3 Conn. 
 ^.579. Turners. Pa/rU'idge,B Penn.B. 112. Hefty. McOill, 
 3 Ba/rr's [Penn.] B. 256.) In Indiana, without such an admission or 
 entry as would make the prochein ami liable for <;osts, the defendant 
 is not bound to plead, but may have the suit dismissed. {Beeran v. 
 Clowder, 5 Blackford s B. 604.) The fact of infancy must be dis- 
 tinctly stated, as well as the admission of the prochein ami. 
 {Shvrley v. Hagar, 3 BUcJefords B. 225. {McCHMcuddy v. For- 
 25 
 
194: LAW OF INFANCY. 
 
 syth, 5 zb. 435. Eawley v. Zevms, 5 Ohio R. 227.) However, ver- 
 dict will cure the omission to state such fact of infancy, or such 
 admission by the court. {Kid v. Mitchell, 1 Nott cfe McCorWs 
 \8. C] R. 334. Hamilton v. FosUr, 1 Brevard's \_8. (7.] R. 464.) A 
 verdict would even cure an appearance by the infant plaintiff by 
 attorney. {Apthorp v. Backus, Kirby's [Conn.] E. 407.) 
 
 In Alabama, a suit may be brought by prochein ami without 
 first obtaining leave of the court. {Bethra v. McCall, 3 Ala. R. 
 449. Isaacs v. Boyd, 5 Porter's R. 388.) 
 
 If an infant should bring his action, without guardian ovjprochein 
 amd, it is no ground of nonsuit, but advantage can be taken of the 
 irregularity only by plea in abatement. (Schermerhom v. Jenkins, 
 7 ifohns. [iV. y.] B. 373. Smith v. Van Eouten, 4 Halst. [N. /.] 
 R. 381. Fellows v. Wvoers, 38 Wend. ^. 563. Eeft v. Jfcfi^iS, 
 £«7'/-'s R. 256. Z'to^o v. J/bses, 1 Spear's \S. C] ^. 212. Bloody. 
 Ea/rrvngton, 8 Pic^. [Mass.] R. 552.) But in one case in South Caro- 
 lina, it was held that a minor can commence an action, but he will 
 be nonsuited at the trial, unless some one be appointed his 
 prochein a/mi, or guardian. {McDanid v. Nicholson, 2 Rep. 
 Const. Court, BU.) 
 
 In New York, when an infant commences his action by attorney, 
 and the defendant does not know the infancy to be material, it has 
 been held an excuse for delay, in moving to set the proceedings 
 aside. {Ex parte Scott, 1 Cow. B. 33.) If the first process be 
 issued before the appointment of a guardian ov prochein ami, the 
 proceedings will not be set aside, if the appointment had been 
 naade previous to the motion to set aside, and the costs of the motion 
 paid. {Fitch v. Fitch, 18 Wend. R. 513. Vide aho Fulhright v. 
 Carm^field, 30 Miss. R. 425. Stumps v. Mliy, 22 III. R. 140.) 
 And on plea in abatement in Massachusetts, the next friend 
 may be inserted by way of amendment. {Blood v. Sarrington, 
 supra) 
 
 % 134. If an infant and a man of full age are made executor?, 
 they may bring an action as executors, and the infant naay sue by 
 attorney, without making anj prochein ami or guardian, because 
 the executors sue in the right of the testator, and not in their own 
 right ; and therefore he that is of full age may appoint an attorney 
 for him that is within age, for the reason that an infant executor can- 
 not be summoned and sworn. {Smith v. Smith, Yel/oerton's R. 130. 
 Anonymous, 1 Roll. Air. 288. Foxwist v. Tremaine, 2 Saund. B. 
 
ACTIONS BY INFANTS. 195 
 
 212. Foxwist V. Tremaine, 1 Sid. R. 499.) And it seems that the 
 infant executor must be joined as plaintiff with the adult executor, 
 even though he have not proved the will. {CaheU v. Vaughan, 1 
 Wms. Saund. R. 291 h.) However, an infant executor who has not 
 proved the will need not join an executor of full age, in a scire 
 facias, on a judgment for the testator, the facts being stated in the 
 scire facias. {Rutton v. Mascall, 1 Zi/o. JR. 181. Sutton v. Mas- 
 call, Raym. R. 198. It has been held in one case not to be error, 
 though an infant sole executor sue by attorney, upon the principle 
 above stated. {Beale-v.StarJcey,Cro.EU3.^4:2.) The better opinion, 
 however, is that in case of a sole executor his action should be pros- 
 ecuted by his guardian or prochein arm. {Reeve^s Dom. Rel. 267. 
 Cotton V. Westoott, Oro. Jaa. 441. Foxwist v. Tremaine, 1 Ven- 
 iris' R. 103.) 
 
 The rule that an infant must appear hjproohein a/mi, or next 
 
 friend, and not by attorney, relates to the appearance upon the 
 
 record; but in notices and rules the attornery of the jJTOcAem a/mi 
 
 may use his own name. {People v. New York Common Pleas, 11 
 
 Wend. R. 164.) 
 
 The offices of guardian and prochein ami are entirely distinct, 
 and the privilege of suing hj prochein arm did not exist in England 
 until it was allowed by statute, and by the statute the privilege 
 was given only in cases of necessity, as when an infant was to sue 
 his guardian or was eloigned, as when the guardian would not sue 
 for him. In all except these exceptional cases the suit was required 
 to be by guardian and not by prochein ami. {Bae. Air. tit. 
 Infancy, K.) Judge Eeeves said : " It is contended by some that 
 he may sue hj prochein ami in all cases, but the authorities teach 
 a different doctrine. If it was allowable for an infant to sue by 
 his prochein ami in all cases, he might squander his property in 
 needless suits, in spite of his guardian ; and indeed it would be 
 wholly destructive of that necessary control of the guardian over 
 the infant, with which the law has invested him." {Re&oe^s Dom. 
 Rel. 264.) 
 
 § 135. The guardian or prochein arrd of an infant plaintiff must 
 be appointed by the court, except in some instances, by the statutes 
 of a particular state, he may be appointed by a judge of the court 
 or by some other officer authorized to discharge the duties of such 
 judge at chancery, and no legal right of parentage or guardianship 
 will enable any one to act for the infant without such appointment. 
 
196 LAW OF INFANCY. 
 
 The old practice as to the appointment oiprochein wmi or guardian 
 was for the person intended as prochevn a/mi or guardian, to 
 attend with the infant before a judge at chambers, who granted his 
 fiat for one of the masters to draw up the rule, or in a court of law 
 the judge would at once grant the admission. The admission was 
 left with the clerk or register of the court, and the rule was entered 
 in the office of the clerk or register. A copy of the rule or admis- 
 sion was annexed to the declaration before it was served. {Atck- 
 lold^s Practice, 889, ^th ed. ly Ohitty.) If ila.e prochem arm or 
 guardian and the infant could not attend, a petition was written and 
 signed by the infant, praying to be admitted to prosecute his action 
 by the person proposed as his proohem ami or guardian, stating 
 the cause of action in the petition. At the foot of the petition the 
 proposed jJTOcAem ami signed his consent to act for the infant. To 
 this was annexed an, affidavit of the signing of the petition and 
 consent ; and then all was presented to the judgie or other officer, 
 who granted his flat or admission, and the same was filed and 
 entered as above. {ArchhoWs Practice, 889, lih ed. hy Ohitty) 
 This is substantially the practice at the present day, except it is 
 varied by the statute or rule of court. In the State of New York, 
 the infant must now appear by guardian, who may be appointed 
 by the court in which the action is prosecuted, or by the judge 
 thereof, or a county judge. The application for an infant plaintiff 
 is made by himself if he is of the age of fourteen years ; or, if under 
 that age, by his general or testamentary guardian, if he has any, or 
 by a relative or friend of the infant. If made by a relative or 
 friend of the infant, notice of the application must first be given to 
 such guardian, if he has one ; if he has none, then to the person 
 with whom such infant resides. {Code of Procedure, §§ 115, 116.) 
 The application is made by petition and presented to the judge, who 
 signs an order appointing the guardian, when the petition and order 
 are filed with the clerk of the court in which the action is com- 
 menced. In a partition suit, however, the practice is regulated by 
 the revised statutes and other special acts, and the guardian must 
 be appointed in all cases by the court, whether for an inftint 
 plaintiff or defendant. (2 P. S.jpart 3, ch. 6, tit. 3, § 2. 2 Stat. 
 at Large, 396. Laws of 1852, ch. 277. 4 Stat, at La/rge, 615.) 
 
 An infant who is unable to write or make petition will be per- 
 mitted to prosecute an action by guardian or next friend. {Eades 
 V. Booth, 65 Mig. C. L. B. Y18.) 
 
ACTIONS BY INFANTS. 197 
 
 The power to appoint a guardian for an infant plaintiff is inci- 
 dent to a justice's court, as well as to every other court, and the 
 appointment is made by application to the justice in the same form 
 as to another court. {MaoTcey v. Grey, 2 Johns. R. 192.) 
 
 § 136. In England, the court will appoint a prochdn ami as its 
 officer to conduct a suit for an infant, and to look after his interests, 
 and no appointment or subsequent confirmation by the infant party 
 is requisite, whether he be an infant of the tenderest age or of years 
 of discretion; nor does it signify at all whether he is cognizant of 
 the proceeding or not, or whether he is in the country or abroad; 
 and the infant cannot disavow the action. {Morgan v. Thome, 1 
 Mees. <& Wels. B. 400.) Parke, B., says : " The law knows of no 
 distinction between infants of tender age and of mature years; 
 and as no special authority to sue is requisite in the case of an 
 infant just born, so none is requisite from an infant on the very eve 
 of attaining his majority. It appears perfectly clear that every 
 prochem ami is to be considered an officer of the court, specially 
 appointed by them to look after the interests of the infant, on 
 whoni the judgment in the action is consequently binding, and 
 who cannot be allowed, on attaining his age, to commence fresh 
 proceedings founded on the same cause of action ; so that the 
 defendant in this and all similar cases is perfectly safe in paying 
 the damages recovered." {Marga/n, v. Thorne, 7 Mees. (& Wels. 
 M. 646.) The same rule formerly prevailed in the court of chan- 
 cery of the State of New- York. In one case, the chancellor 
 remarked : " It is not necessary for the person prosecuting a suit 
 in the name of infants to show that the same was commenced with 
 their knowledge or consent. Any person may bring a suit in their 
 name as their next friend, because he does it at his peril. {Andrews 
 V. Gradock, Precedents in Chwncery 376.) The only check upon 
 this general license is, that on a proper application the court will 
 refer it to a master to inquire whether such suit is for the benefit 
 of the infants; and if the master reports that it is not for their 
 benefit, or that it is not for their interest that it should be pros- 
 ecuted by the particular person who has instituted the suit, the 
 court will order the proceedings to be stayed." {Fulton v. JRose- 
 velt, 1 Paige's B. 178, 179.) The prochein ami, however, had to 
 be appointed by the court, and an insolvent person was not per- 
 mitted to prosecute in the name of infants without giving security 
 for costs. {Fulton v. BoseveU, supra.) 
 
198 LAW OF INFANCY. 
 
 In England, Lord Chancellor Brougham expressed his opinion 
 upon the suhject of suits heing instituted by next friends thus : 
 " The true and just principle which should govern all such cases 
 is this, no discouragement ought to be thrown in the way of persons 
 lona fide suing as next friends ; but no undue facility should be 
 given to mere volunteers, who interfere rather for their own pur- 
 poses than for the infant's advantage. While they appear to act 
 lona fide they will be protected ; the presumption will rather be in 
 their favor; the proof will rather be thrown upon those who 
 impeach their motives ; the leaning will be more for than against 
 them ; no forced constructions will be put on their conduct ; no 
 benefit from bare possibilities will be conjured up in their behalf. 
 They must be content to have their motives appreciated and their 
 acts judged like other parties. If they have involved themselves 
 in suspicion, their proceedings must be subjected to inquiry; if 
 they have incurred just blame, be it by improper interference, or 
 be it by unnecessary interference, they must abide the consequences ; 
 the suit at their instance must be stayed ; or, if the suit be useful 
 to the infant, but the parties instituting it be unfit to conduct it, 
 they must' give place to others in whom the court can better repose 
 confidence. It follows that every such case must depend upon its 
 circumstances; nor will the courfr even order an inquiry unless 
 just cause of suspicion exists." {NaMer v. Mawkins, 2 Mylne <& 
 Keen's R. 243.) A similar practice is now followed in many of 
 the states ; but in the State of New York this practice no longer 
 exists. ( Vide ante, § 135.) 
 
 In the State of Texas, an infant may sue by a next friend, though 
 he have a general guardian, unless the guardian expressly dissent. 
 {Rdbson v. Osborn, 13 Tex. R. 298.) The guardita must he a 
 responsible person, who is competent to answer for the costs in the 
 action. {Cooh v. Rawdon, 6 How. Pr. R. 233. Dakymphy. 
 Lamh, 3 Wend. R. 424.) Though in the State of South Carolina, 
 an insolvent person may be appointed prochein ami to prosecute 
 the action for an infant on giving security for the payment of costs. 
 {&nith V. Anderson, 1 Railey^s B. 203.) And generally, an infant 
 who has no means of indemnifying a responsible person for costs 
 will be permitted to sue by his next friend in forma pauperis. In 
 such case, however, the court will, in the first place, see that there 
 is probable cause for the proceeding, and will appoint a proper 
 person as a prochein ami. {Fulton v. Rosevdt, 1 PaAgis R. 178.) 
 
ACTIONS BY INFANTS. 199 
 
 § 137. As has been suggested, it is a general rule that in all 
 cases when an infant has a just cause of action he may bring his 
 suit for it. Thiis, he may bring an action upon any contract 
 entered into with him personally. {McOiffin v. Storrs, Cox's [iT. 
 t/".] R. 72.) So an infant can bring an action for the conversion of his 
 person al property, though he ha ve a father or guar dian. {Stafford v. 
 Hoof, 9 Cow. R. 626.) So also an infant has an action on a promise 
 of marriage, and in such action he need not aver or prove the con- 
 sent of the parent or guardian. {Cannm, v. Alsiury^ 1 A. K. Marsh'. 
 [jKy.J R. 76.) An infant performing a contract within the statute of 
 frauds may recover upon the common counts for money paid or ser- 
 vices performed under it, though he cannot recover upon the contract 
 any more than an adult. {King v. Brown, 2 SilVs [W. T.'\ B. 485.) 
 
 An infant can maintain an action for use and occupation of his 
 land, although he has a general guardian. {Porter v. Bleiler, 17 
 £arb. [iT. y.] R. 149.) And if the infant has received his rents 
 he cannot demand them again after he becomes of age. {Pa/rTcer 
 V. Elder, 11 Humph. R. 546.) An infant can maintain an action of 
 ejectment to recover the possession of his lands from a wrong-doer. 
 {Porter v. Bleiler, 17 Bao"!). 149, 153, per Marvin, J. Tide also 
 McPherson on Inf. 354, am,d cases there cited. Doe v. Thomas, 16 
 Mees. c& Wels. R. 778.) An infant may also maintain an action in 
 equity to recover personal property from the hands of executors 
 or trustees when he is entitled to the possession of such property. 
 The general guardian of such infant cannot file a bill in his own 
 name to obtain possession of the property of his ward. {Bradley 
 V. Amidon, 10 Paige's P. 235.) 
 
 An infant husband may bring an action and recover damages for 
 debauching his wife. {Morgan v. Thorne, 7 Mees. & Wels. R. 400.) 
 
 Sometimes the property of an infant may be so situated that an 
 action cannot be sustained in his name with respect to all matters 
 relating to it. For example, infant heirs to whom a farm had 
 descended, but which was in the actual possession of the mother 
 and step-father of such infants, cannot maintain an action for the 
 use and occupation of such farm, or bring trover for the value of 
 crops taken froni the farm. The reason is that the mother and 
 step-father of the infant in such a case are presumed to be in law 
 fuUy in the possession and occupation of the farm, the mother as 
 guardian im, socage, and the step-father ^twe uxoris/ and, therefore 
 the products of the farm would not belong to the infants, but rather 
 
200 LAW OF INFANCY. 
 
 to their step-father. {Bucher v. Grouse, 19 Wend. R. 306, 308.) 
 So when the guardian of a minor makes a lease of the land of his 
 ward, reserving rent, the action for the non-payment of the rent 
 cannot properly be brought in the name of the infant, but shoxild 
 be brought in the name of the guardian as plaiutiff. {Pond v. Cur- 
 tiss,1Wend.R.4S,.) 
 
 An action may be brought for an injury to a child of the most 
 tender age in the name of the child ; but in such an action, if there 
 be negligence on the part of the plaintiff, there can be no recovery. 
 Although the child, by reason of his tender age, be incapable of 
 using that ordinary care which is required by a discreet and prudent 
 person, the want of such care on the part of the parents or guardians 
 of the child furnishes the same answer to an action by the child as 
 would its omission on the part of the plaintiff in an action by an 
 adult. {Bartfdd i. Roper, 21 Wend. R. 615.) This is upon the 
 well settled pi-inciple that if the party injured has drawn the mis- 
 chief upon himself by his own neglect, he is not entitled to an 
 fiction ; but in case of an infant or an adult, though there may have 
 been negligence on the part of the plaintiff, if the injury was 
 voluntary or arose from md/pdhle negligence on the part of the 
 defendant, an action can be maintained. (/5.) An action may, in 
 some cases, also be btought by the father for personal injuries to 
 his infant child. But the gist of the action in such a case is the 
 loss of service ; and if a child be of such tender years as not to be 
 capable of performing service, the father has no action, unless it 
 might be a special action for expenses necessarily incurred by 
 reason of the injury. {Hail v. Hollwnder, 10 Eng. G. L. R. 436. 
 Tide also Flemmgton v. &nithers, 12 ib. 131.) By the 'present 
 statutes of New York every action must be prosecuted in the name 
 of the real party in interest, except in the cases of an executor or 
 administrator, a trustee of an express trust, or a person expressly 
 authorized by statute, a suit may be brought without joining the 
 person for whose benefit the action is prosecuted ; and it is declared 
 that a trustee of an express trust, within the meaning of this pre- 
 vision, shall be construed to include a person with whom; or in 
 whose name, a contract is made for the benefit of another. {Code 
 of Prooedwre, §§ 111, 113.) This, of course, would extend to a 
 case like that of Pond v. Gurtiss, supra, but does not interfere in 
 the least with the general principles suggested with respect to 
 actions in favor of infants. 
 
ACTIONS BT INFANTS. 201 
 
 § 138. The court takes great care of the interests of an infant 
 plaintiff, and will stop any suit that is not for his benefit, and will 
 remove a next friend or guardian who is not likely to conduct the 
 suit properly. (Sale v. SaU, 1 Brev. B. 586. Guy v. Ovy, 2 il. 460. 
 And vide Walker v. Else, 1 Sim. JR. 234, Amott v. Blaesdale, 4 
 ib. 387. Ga^r v. Drake, 2 Johns. Ch. B. 542. Fulton v. Bosevelt, 1 
 Pa/ige's B. 478. Watson v. Fraser, 8 Mees. d: Wels. B. 660.) An 
 unwillingness to prosecute the suit is sufficient cause for a change 
 of guardian. {Hardin v. Scanlm, 1 Miles' {Perm.} B. 87. 
 Wa/rd V. Ward, 3 Merw. H. 706.) 
 
 If two suits for the same purpose are instituted in the name of 
 an infant, by different persons acting as his next friend, the court 
 will, on motion, as a matter of course, direct an inquiry to be made, 
 to ascertain which suit is most for his benefit, and which is most 
 proper to be proceeded with. This inquiry is made on reference to 
 a master, and the master is at liberty to state special circumstances. 
 TJpon the reference it is competent for the master to point out any 
 improvements that may be made in the form of the suit, or any" 
 other circumstances that may be for the benefit of the infant. All 
 proceedings in both suits, except such as may be required in pur- 
 suance of the reference, are stayed until the master shall have made 
 his report. {Donner v. Fortescue,.3 Atk. B, 130. McPherson 
 on Inf. 371, and cases eited.) And when but one suit is commenced 
 by a next friend for an infant, the court, on suggestion, will refer 
 it to a master to report whether the suit is for the infant's benefit. 
 (Garr v. Drake, supra.) This shows how exceedingly cautious 
 the courts are in guarding the interests of infants, when any mat- 
 ter which may affect their interests is before them. Should there 
 be a change of prochein and, or guardian, pending the action, the 
 fact must be entered on the record. {Dames v. Lockeit, 4 Tcmn- 
 ton^s B. 765.) And when the change is made, the former guardian 
 is a competent witness in the case. {BwrJcs v. Shain, 2 Bibi's [-2y.J 
 ^.341.) 
 
 § 139. So also the courts always show an infant especial favor in 
 all litigations in their behalf. Thus, where a bill was brought on 
 behalf of an infant, to have the possession of a family estate as 
 tenant in tail under an old settlement, and for general relief, on 
 an issue, the father of the plantiff was found to have been illegiti- 
 mate, and the plaintiff, waiving his claim to the whole estate, 
 insisted on having tile benefit of a certain agreement between his 
 26 
 
202 TjA w of infancy. 
 
 father and his grandfather, under which he would be entitled to 
 part only of the estate ; Lord Hardwicke held that the agreement 
 was binding, and decreed for the plaintiff on this point, deciding 
 that in the case of an infant, he would allow him to have a decree 
 " upon any matter a/rising upon the state of his case, though he has 
 not particularly mentioned and insisted ,jipon it and prayed it by 
 his bill." {Stapilton v. Stajailton, 1 Aik. R. 2, 5.) So also where 
 a bill by an infant insisted on a certain construction of a settle- 
 ment, and that, if such were not the legal construction, yet such 
 was the intention of the settlor (without referring to any articles 
 of instructions) ; and upon the hearing it was proposed to read on 
 the part of the plaintiff, instructions which had been sent by the 
 settlor ; Lord Hardwicke said that if the bill had been brought to 
 make the settlement agreeable to articles or instructions, and had 
 pointed out those instructions particularly, they might have been 
 read in evidence ; that the proper method was to point out the 
 articles or instructions, though it was not to be laid down as a 
 general rule, that no case can be so circumstanced as to make it 
 unnecessary to point out the articles, or when the settlement itself 
 refers to them. But this being the case of an infant, his lordship 
 gave an opportunity to amend his bill, that he might have the 
 benefit of those instructions. {Prichard v. Quinchant, Ambl. B. 
 147.) And in all cases a court of equity will protect the rights of 
 infants when they are manifestly entitled to something, although 
 their guardian ad litem neglects to claim it in their behalf. 
 {Stephens v. Yam, Buren, 1 Paige's P. 479.) 
 
 And again, the court will not allow any advantage to be taken 
 of the mistakes of those who act for infants. {Serle v. St. Eloy, 2 
 P. Wms. P. 386.) So the court will also elect for an infant, when 
 it is necessary to decide between two modes of proceeding. Thus, 
 if an ejectment bill is brought on behalf of an infant for possession, 
 and an account of rents and profits, the court may elect for him to 
 proceed at law, and retain the bill for mesne profits ; whereas an 
 adult will be obliged to make his election to proceed in equity or 
 at law, and if at law he must proceed for the whole in a court of 
 law. ( Vide Dormer v. Fortescue, 3 Ath. R. 12&. Stevens v. 
 Stevens, 6 Madd. P. 97.) It seems also, that where an infant 
 plaintiff neglects to reply, it is not, as in the case of an adult, 
 an admission of the facts in the answer, and, therefore, he is not 
 affected by his neglect to reply, but all of the facts must be proved. 
 
ACTIONS AGAINST INFANTS. 
 
 {Logan v. /Sheffield, 2 Ath B. 3YY.) The authorities cited mn 
 suffice to show the general priaciple upon which the courts are dis- 
 posed to favor an infant plaintiff in the cause of his suit ; but an 
 infant plaintiff is as much bound by a decree, and by all the pro- 
 , ceedings in a cause, as a person of full age ; and cannot, nor can 
 his representatives, openirihe proceedings, unless upon new matter, 
 or on the ground of gross laches, or of fraud and collusion, which 
 will annul the proceedings of courts of justice, as much as any 
 other transactions. {Gregory v. Molesworth, 3 Aik. R. 626. Lord 
 Brook V. Lvrd Hertford, 2 P. Wins. E. 519.' And vide Field v 
 Williamson, 4 Saund. Oh. E. 613.) And the knowledge of the 
 next friend, when there is no collusion, is the knowledge of the 
 infant ; and, generally speaking, the infant is bound by the con- 
 duct of his solicitor in the progress of the cause. {Kemp v. Sqwi/re, 
 
 1 Dick. E. 131.) 
 
 § 140. Reference has already been made generally to those cases 
 in which an infa,nt is liable to an action {ante, ch. 11) ; and it is, 
 therefore, only necessary here to refer to the manner of proceeding 
 in suits in which an infant is defendant. An action may be com- 
 menced against an infant, as it may against a person of full age, 
 and it is no excuse, when there has been unusual delay in pro- 
 secuting a demand, to say that there has been infancy on the part of 
 those against whoni the demand is made. {Jones v. Tuierville, 
 
 2 Ves. Jr. 11.) 
 
 When the suit is instituted against an infant, his infancy is not 
 noticed in the first process, or in the bill of complaint if accom- 
 panying the process, unless it be a material fact in the cause ; and 
 the first papers are served in the usual way, the same as though he 
 was of full age. But the infant can only defend by guardian, and 
 if he appear by attorney, or in person, it is error. The authorities 
 on this point are numerous and decisive, and are general in 
 their application. ( Vide Comstoch v. Ga/rr, 6 WendeWs E. 526. 
 AldermoM v. Tirrell, 8 Joh/iisorCs R. 418. 14 il. 417. B-iis- 
 ta/rd V. Yates, 4 Bama's [Ky.] B. 429. 6 ih. 108. Bedell v. 
 Lewis, 4 J. J. MarshalVs [Ky.] E. 562. Jeffrie v. Eobideavas, 
 
 3 MissovH E. 33. Nicholson v. Wilbur, 13 Georgia, B. 467. 
 New York Code of Procedwre, § 115.) But in North Carolina, 
 the court held that a judgment of nil dicii against an infant, is 
 not void, but oniy erroneous ( White v. Allenson, 3 Bevereux's 
 E. 241.) 
 
204 LAW OF INFANCY. 
 
 This person who appears and defends for the infant defendant, 
 is called the guardian ad litem His duties are limited to the 
 particular suit, and he has none of the powers or liabilities of a 
 permanent guardian. He must be appointed by the court, or by 
 such other functionaries as the statute of the particular state may. 
 prescribe, and he may generally be appointed on the motion either 
 of the plaintiff or defendant. 
 
 In the State of New York, the guardian ad litem, is appointed 
 upon the application of the infant, if he be of the age of fourteen 
 years, and apply within twenty days after the service of the sum- 
 mons. If he be under the age of fourteen, or neglect so to apply, 
 then, upon the application of any other party to the action, or of a 
 relative or friend of the infant,, after notice of such application 
 being first given to the general or testamentary guardian of such 
 infant, if he has one within the state ; if he has hone, then to the 
 infant himself, if over fourteen years of age, or, if under that age, 
 and within the state, to the person with whom such infant resides. 
 ( Code of Procechvre, § 11 6, subd. 2.) The application for the appoint- 
 ment of the guardian ad litem, to defend for the infant,, is made to 
 the same officer, and in a similar mode, as in case of the appoint- 
 ment of a guardian for an infant plaintiff. When the infant 
 defendant is a married woman, her husband is usually appomted 
 her guardian to defend the. action for her, unless he has an interest 
 adverse to her, or is incompetent in some other respect. 
 
 The adinission of a guardian to defend one suit, will not authorize 
 the same guardian to defend another action against the infant 
 defendant, except by another, appointment. There must be a 
 separate appointment for each case. {Rule of Oowrt, 3 Bam,. & 
 Ad. R. 374.) In Pennsylvania, however, the infant may defend 
 by his gen9r.9,l guardian, who has been regularly appointed by 
 the orphan's court. {Mercer v. Watson, 1 Watts^ B. 330.) And a 
 co-defendant may be appointed the giia/rdiam, ad litem to other 
 defendants who are infants. {Prascod v. TulT/y, 5 Eng. Lorn cfc 
 Eq. R. 127.) 
 
 In the State of Virginia, the court may appoint a guardian ad 
 litem for an infant defendant, and the person appointed is obhged 
 by statute to act in the suit and take charge of the defense. {Oodx. 
 of 1849, cK. 171, § 16.) 
 
 If no appearance by guardian ad litem be entered for the infant 
 defendant within the time prescribed by statute or rule of court, 
 
ACTIONS AGAINST INFANTS. 205 
 
 the plaintiff may have a rule to assign a guardian for the infant. 
 {Jvdson V. Storer, 2 South. [i\7". J."] B. 644. Cole v. Permell, 2 
 Band. [ Va.] B. 1Y4. Mackey v. Orey, 2 Johns. B. 192. Fewring 
 V. Glauson, 1 ^aB's 5. 55. Mercer v. TTafepw, 1 TTa^te' ^. 330. 
 aa^^ V. Gilmanton, 12 if. ^. ^. 515.) 
 
 If an infant appear in person, or by attorney, it is error in fact, 
 and may be assigned in the court by which the judgment is pro- 
 nounced. {CasQ,edJme v. Mvndy, 1 Nev. <& Man. B. 635. 4 Barn. 
 <& Ad. B. 90. Meredith v. Sanders, 2 BibVs [Zy.] B. 101.) The 
 infant defendant cannot appear in person or by attorney even to 
 move to set aside former proceedings, on the ground of want of 
 appointment of a guardian ad litem. {Shepherd v. Hiblard, 19 
 Wend. B. 96.) 
 
 An infant defendant sued as administratrix cannot appear by 
 attorney. {Himdmarsh v. Chandler, 2 JEiig. C. L. B. 183.) The 
 appearance by attorney is not ground of error if the plaintiff 
 become nonsuit. {Bird v. Pegg, 7 Eng. C. L. B. 153.) But it has 
 been held in such a case before judgment that the court will order 
 such appearance struck out, and the infant to pay the costs. {Paget 
 V. Thompson, 13 Eng. C. L. B. 69.) 
 
 It has been held that a judgment against an infant defendant 
 without the regular appointment of a guardian ad litem is simply 
 erroneous, and that if an actual defense were interposed by one 
 acting as guardian ad Utem, it may be suflScient without any 
 express appointment. ( Yide Prawn v. MoBae's Executors, 4 
 Munf. [ Va.] B. 439. Priest v. Hamilton, 2 Tyler's [ 71.] B. 44. 
 Mercer v. Watson, swpra. Goto v. Easley, 2 Stew. [Ala.] B. 214.) 
 But if there is an express appointment of a guardian ad Utem, it 
 seems to be necessary that such guardian appear or otherwise 
 accept. {Shaefer v. Gates, 2 B. Mon. [Xy.] B. 453. Eox v. 
 . Casley, 2 CaU. [ Va.} P. 1. Cameal v. Sthreshley, 1 A. K. Ma/rsh. 
 \Ey.] B . 471. Pamiel v. Hamnigan, i J. J. Marsh. [Ky,] B. 48. 
 St. ClaAr v. Smith, 3 Ohio B. 355. Yovmg v. Wliitaker 1 A. K. 
 Ma/rsh. [Ky.] B. 398.) 
 
 As was suggested with respect to an infant plaintiff, the rule 
 as to appeiaring by attorney relates only to the appearance on the 
 record, and does not deprive the infant of the professional aid of 
 an attorney, in whose name rules may be entered and notices 
 served. {People v. Sew York Common Pleas, 11 WendelVs B. 
 164.) 
 
206 LAW OF INFANCY. 
 
 It has been held by the supreme coTirt of the United States, that 
 the duty of watching over the interests of iufant defendants, 
 devolves in a considerable degree on the courts ; and that it is a 
 mark of inexcusable inattention to appoint a guardian ad litem on 
 the motion of the opposite counsel, without bringing the minors 
 into court, or issuing a commission for the purpose of making 
 inquiry as to the appointment. {Bank of the United /States v. 
 Eitchie, 8 Peter's B. 128.) 
 
 In a foreclosure suit in the English court of chancery, when a 
 decree was taken against a defendant subsequently discovered to be 
 an infant, the court declined to rehear the case, or in any way expe- 
 dite the foreclosure of the equity of redemption ; but held that a 
 supplemental suit must be filed, or a new suit instituted. {Dar- 
 win V. Nicholson, 19 Eng. L. & Eq. S. 436.) 
 
 It may be repeated in this place that a judgment or decree ren- 
 dered without any guardian, or on an appearance by attorney, is 
 not void, but merely voidable on error brought, or other proceed- 
 ings to set it aside. {Bloom v. Burdich, 1 HiWs [If. Y.'\ jR. 130. 
 Barber v. Graves, 18 Yt. R. 290. Porter v. Pdbinson, 3 A. K. 
 Marsh. {Ky.} B. 253. White v. AlberUon, 3 Bev. [iT. C] R. 241.) 
 
 § 141. An appointment of a guardian ad litem, for infant non- 
 resident heirs, without order of publication or other service of 
 process on them, does not make them parties to a suit ; nor will 
 they be bound by the decree in such a case. The action must be 
 commenced agaiast the infant defendants in some of the ways pre- 
 scribed by the statute or the practice of the court for the 
 commencement of suits. {CoUard's Seirs v. Groom, 2 J. J. Marsh. 
 \_Ky.] R. 487. Shropshire v. Reno, 5 Dana's [Ky.] B. 684. Jones, 
 Bur. V. McGinty, 3 *J. 425. 
 
 When there is an infant defendant in a com-t of equity the 
 cause should not be heard without an answer for him. If 
 the guardian ad litem fail to answer, the court should coerce the 
 answer, or appoint a new guardian ad litem, and defer the hearing 
 until the answer comes in. {Henly v. Gore, 4 Dana^s [-Sy.] B. 136.) 
 
 As a general thing, a judgment against several, which is erro- 
 neous because one of the defendants, who is an infant, did not 
 appear by guardian ad litem, will be set aside as to all ; for the 
 reason that a judgment is an entirety. Even though the action be 
 one in which the parties defendants might be several, the appear- 
 ance of an infant by attorney, and judgment against him and 
 
COSTS AGAINST INFANTS. 207 
 
 others, is ground of reversal as to all. {Cruikshanlc v. Gardner, 2 
 miVs {N. F.] R. 333. Sargeant v. Frenoh, 10 N. H. R. 444.) If 
 tlie infant co-defendant plead his infancy, the plaintiff may have 
 leave to enter a nolle prosequi as to him, and take judgment against 
 an adult ; or on the trial the jury may find a verdict for the infant 
 and against the adult, for the infancy of one will in no way avail 
 the adult defendant. {Hastings v. Thompson, 5 Johns. [iT. T'.] 
 R. 160. Yan Brrnner v. Cooper, 2 *5. 279. Woo&uoard v. Nerm- 
 hall, 1 Pich. \Mass.'\ R. 500. Cutts v. Gordon, 13 Mame R. 474. 
 Barlow v. Wiley, Z A. K. Ma/rsh. \Xy.] R. 457.) If an infant 
 and one of full age are made executors, and an action is brought 
 against them, he that is under age must appear by guardian for 
 the defense. ( Weld v. Rumn&y, 2 Sto. R. 784.) 
 
 It would seem that in replevin against several, if the defendants 
 appear by attorney and avow as bailifis, and one of them is an 
 infant, yet it is no error ; for they all make one bailiff, and appear 
 in autre droit, or another's right. {Coan v. Bowles, 1 Shower's 
 B. 165.) 
 
 The guardian ad litem cannot bind the infant defendant in any 
 thing except in the ordinary proceedings in the suit. The 
 declarations of the guardian are not evidence against the infant, 
 and he has no power to release the interest of any person so as to 
 render him competent as a witness. {Fraser v. Ma/rsh, 3 Eng. 
 G. L. B. 308. CowUng v. Ely, lb. 447.) And it seems that an 
 infant wiU not be bound by his own release given on the trial to 
 qualify a witness, though his guardian ad Utem join therein, unless 
 it be lona fide a sufficient satisfaction of the debt due him. 
 {Walker v. Ferrin,AVt. R. 523.) 
 
 § 142. The next friend or guardian of an infant plaintiff is 
 primarily responsible to the defendant, and to the plaintiff's attor- 
 ney or solicitor, for the costs of the suit. The infant himself is 
 not liable to pay the costs of the defendant in any event ; but if in 
 the end the complaint is dismissed with costs, or if cofets are given 
 as against the plaintiff at any step of the "proceedings, the ques- 
 tion arises whether these costs are ultimately to be borne by the 
 infant or by the guardian, or proehei/n ami. The rule laid down 
 by Lord Thurlow in this regard is, that no degree of mistake or 
 misapprehension will be sufficient to charge a proohein ami with 
 costs ; and that any one who will stand forward in that character 
 on the behalf of infants, is to be encouraged to every possible 
 
208 LAW OF INFANCY. 
 
 extent whicli he can be supposed to intend the infant's benefit. 
 ( Whitaker r. Ma/rlcm, 1 Cox^s Gas. 285.) Lord Hardwicke held that 
 if it appears that the next friend was sufficiently warranted in bring- 
 ing suit, and that it was brought on and continued in a reasonable 
 manner, and without laches, then the infant ought to reimburse him. 
 {Taner v. Ivie^ 2 Yes. Jr. B. 466.) JBut the costs will not be charged 
 on the infant's estate, unless the court is satisfied the suit was 
 brought in good faith, and with the horm fide intent to benefit the 
 infant. (Pearce v. Pearce, 9 Ves. B. 54Y.) This is substantially 
 the rule in this country. If a bill is filed on behalf of an infant by 
 his next iriend, and the bill is dismissed or a decree is made in the 
 cause before the infant is of age, he cannot be personally charged 
 with costs. They are to be charged against the next friend, unless 
 there is 'a fund under the control of the court belonging to the 
 infant, in which case the court may direct the costs to be paid out 
 of that fund. {Wa/rmg r. Crane, 2 Paiges Ch. B. Y9, 81.) This 
 is the practice in a court of equity where the whole subject of costs 
 is, in general, in the discretion of the court. But in a com't of 
 law, if the defendant recover costs against the plaintiff in an action 
 brought by a guardian or proohein ami for an infant, the infant 
 plaintiff is not liable for those costs, but the guardian or proehem 
 arm is. {Sproule v. Botts, 5 J. J. Marsh. [By.] B. 162. Perry- 
 man V. Burgster, 6 Port. [Ala.] B. 99. Bouche v. Byan, 3 Blackf. 
 [Ind:\ B. 472.) 
 
 By construction of a statute in Massachusetts, an infant plaintiff 
 seems to be liable for costs to the defendant, and the prochei/n ami 
 is not. {Smith v. Floyd, 1 Pick. B. 275. CrandaM v. Slaid, 
 11 Mete. B. 288.) 
 
 In North Carolina, if an infant plaintiff becomes nonsuit, he 
 is liable for the defendant's costs, and a fisri facias may issue 
 against his property. (Rowett V. Alexcmder, 1 Dev. B. 431.) Bat 
 in Kentucky, the mode of compelling the payment of the defend- 
 ant's costs recovered against an iufant plaintiff is by attachment 
 against the next friend, and not by execution ( Willson v. McOee, 
 2 A. K, Marsh. B. 601) ; and upon the* reversal of a judgment 
 obtained by an infant in the name of his next friend, the judg- 
 ment and costs go against the prochein ami. ( Yeig&r v. Stone, 
 7 Mon. B. 189.) 
 
 § 143. In all cases of actions against infant defendants, the same 
 rule with respect to costs applies as in the case of adults, and costs 
 
COSTS AGAINST INFANTS. 209 
 
 are given mucli upon the same principle as in suits by and against 
 adult parties. In actions at law the rule with respect to costs is 
 peremptory, and applies equally to infants and adults. In actions 
 and proceedings in equity, the matter of costs is often in the dis- 
 cretion of the court, and in those cases the fact of infancy added 
 to the other circumstances may be considered, to relieve the defend' 
 ant from the payment of the plaintiff's costs, when costs might be 
 imposed against an adult. 
 
 An infant who prosecutes an unjust claim at law, and compels 
 the other party to come into equity for relief, and then sets up 
 an inequitable defense, will be adjudged to pay the costs of the 
 plaintiff in the equity suit. {Price v. SyTces, 1 Hawhes' [iT. C] 
 R. %%.) 
 
 In the State of Maryland, it is held that an infant defendant is 
 liable to pay the plaintiff's costs, and that a ca/pias ad satisfaci- 
 endum may issue to recover them. {Lwtie v. Gover, 1 Sarr, c6 
 McHenry's E. 459.) 
 
 In England, it has been said that the guardian of an infant 
 defendant is liable prima facie for costs; and he is personally 
 liable to costs if the answer be reported scandalous or impertinent ; 
 but where no misconduct is imputed to the guardian ad litem, 
 he seems to stand on the same footing with regard to costs as 
 the jprochein and of an infant plaintiff. {McPhersm on Infancy, 
 432.) 
 
 In one case an infant defendant was brought up by the messen- 
 ger to have a guardian assigned him to defend the suit, and Lord 
 Hardwicke said that an infant defendant pays no costs of a con- 
 tempt; that the plaintiff always pays the messenger. {Perkins v. 
 Mammiond, Dick. R. 287.) In another case, a solicitor, without 
 •authority, caused an appearance to be entered for an infant defend- 
 ant, and the appearance was ordered to be set aside, and the 
 solicitor to pay costs. {RicJia/rds v. Dudley, 2 Dan. C. P- 1.) So 
 also, it has been said : " Although an answer confesses every thing 
 that is prayed [alleged] by the bill, so that the plaintiff, in that 
 case, need not be at the trouble of proving it, yet, if the defendants 
 are infants, the court wiU compel the plaintiff to prove every thing ; 
 which he did, and had a decree ; whereupon it was prayed, that 
 the plaintiff" should have costs of all, and not for the bill and answer 
 only, which was granted." (2 Egm,ty Oases, abridged, 237, m>t6 1. 
 And vide Sill v. Omeshee, 12 III. R. 160,) 
 
 27 1 
 
210 LAW OF INFANCY. 
 
 The decree in a siiit for partition directs the costs of infants to 
 be borne by their share of the property. {Agar v. Fairfax, 17 Ves. 
 R. 557.) This is the rule generally both in England and in the 
 United States ; and in this respect it is the same with infants as 
 with adults. 
 
 CHAPTEE Xm. 
 
 HOW INTANOT IS TEIED BTIBDEN OF PEOOF THE EIGHT OF PABOL 
 
 DEMUEEEE DAT TO SHOW CAUSE AGAINST A DECEEE — EFFECT OF 
 
 THE JUDGMENT OE DECEEE AGAINST AN INFANT. 
 
 § 144. It has been laid down as a rule, that when it is alleged in 
 the pleading that the party was and still is an infant, the fact must 
 be tried by inspection of the court ; but that when the party is of 
 full age, at the time of the plea, then it will be tried fer pais. 
 But as to judicial acts, or acts done in a court of record, that the 
 trial of infancy must be by inspection, and, therefore, if an infant 
 levies a fine and attempts to reverse it, the writ of error must be 
 brought during his minority, so that the court rtiay by inspec- 
 tion determine the age of the infant ; although the judges, as by 
 adjimota, ma^n such cases inform themselves by witnesses, church 
 books and other evidence ; and by the same rule, if an infant suf- 
 fered a recovery by appearing in person, this had to be reversed by 
 inspection of the judges during his minority. {Bing. on Inf. 142, 
 and authorities cited.) 
 
 Ey the old practice in England, an infant could not properly be 
 cognizor in a fine ; but if the judge or commissioners whose duty 
 it was to see that persons acknowledging fines before them were of 
 age, and who were liable to be fined if they neglected" their duty, 
 permitted an infant to levy a fine, it was presumed, that he was of 
 full age, and he could not impeach the tine on the ground of his 
 disability in the court in which it was levied. {Mansfield's case, 
 12 Coke's R: 123. Eearle v. Oreenlanh, 3 Atle. B. 711.) But if 
 the infant broug];it a writ of error in a superior court during his 
 minority, the fact of infancy was tried, not by jury but by inspec- 
 tion of his person in open court ; and the judges might require 
 his appearance for that purpose, examine him or his relations and 
 inform themselves by any kind of evidence, {McPherson on Inf. 
 
PROOF OF INFANCY. 211 
 
 461.) If upon inspection the party was found not to be of full 
 age, the fine was reversed ; and when it had been once adjudged 
 and recorded upon such an inspection that he was within age, 
 then though he attained his full age or died beibre the fine was 
 reversed, yet he or his heirs might reverse it afterward. {Keok- 
 wicTc's case, Sir F. Moore, 844.) So, when there was a protection, 
 which rendered it impossible to proceed in the cause against the 
 cognizee, the infant might be inspected under age, and the fine 
 avoided whenever the protection ceased. {Co. lAtt. 131 a, 180 5. 
 Vide, also, MbPherson mi Inf. 462.) 
 
 The common law rule may still prevail in England, but the trial 
 by inspection is no part of the law of this country. In the United 
 States, the fact of infancy is tried in the ordinary manner of other 
 facts, by a jury. {Eyeson v. Orover, Cox^s [i\^. J.'\ H. 458. 
 Slwer V. SheUbach, 1 Dallas' [Pa.j B. 165.) The fact is tried at 
 the same place and before the same tribunal as the other facts of 
 the case ; that is, the venue in cases for or against an infant is laid 
 in the place required by the practice in other cases ; although the 
 law of the domicile of birth governs the state and condition of 
 the minor, into whatever country he removes, and his minority 
 ceases at the period fixed by those laws for his majority. {Ante, § 
 4.) For instance, if a female at the age of nineteen years should 
 make her promissory note in the State of Nebraska or Vermont, 
 where females are declared to be of full age at eighteen years, and 
 an action should be brought to recover the amount of such note in 
 the State of New York, where a female is an infant until she is 
 twenty-one years of age, her plea of infancy will not defeat the 
 note, although she might on the day of trial be under the age of 
 twenty-one years, certainly not unless the note was made payable 
 in a place where the maker would be considered an infant at the 
 time the note was made. 
 
 § 145. When infancy is interposed as a defense, or is otherwise 
 material in an action or other judicial proceeding, the burden of 
 proving it is upon the party setting it up. Thus, if a person 
 pleads his in6,ncy to avoid a contract executed by him, the proof 
 of infancy lies on him, and this rule will not be departed from, 
 even where the plaintiff replies a new promise after twenty-one, 
 for the reason that the fact of infancy is supposed to rest more 
 immediately within the infant's knowledge, while it may be 
 absolutely impossible for the adverse party to prove the con- 
 
212 LAW OF INFANCY. 
 
 trary, tliough the contrary were true. For example, in the State 
 of ifew York, where the action was upon a promissory note, 
 the defendant pleaded infancy and the plaintiff replied that the 
 defendant ratified and confirmed the promise after he had attained 
 to the age of twenty-one years, upon which the defendant took 
 issue, it was held that the plaintiff was jprima facie entitled to 
 recover upon proof of a new promise, without showing that the 
 defendant was of age at the time of making the new promise. 
 {Bigelow v. Grannis, i SilVs R. 206.) It has also been held by 
 the English courts, that in such cases the burden of proving infancy 
 is still on the infant. {Rostley v. Wharton, 39 Eng. O. L. R. 276. 
 Bosthwick V. Ca/rruthers, 1 Term R. 648. Leader v. Barrey, 1 
 Esp. E. 253. Jenne v. Ward, 2 Stark. E. 326.) 
 
 So in another case in the State of New York, where the action 
 was upon a promissory note, to a replication to a plea of infancy* 
 setting up a ratification of the promises after the defendant came 
 of age, the defendant rejoined denying such ratification after he 
 came of age, it was held that the plaintiff might give evidence of 
 such ratification at any time after the making of the original contract 
 and that it was then for the defendant to show that he was still a 
 minor at the time of such ratification. {Bay v. Gunn, 1 Denio's 
 E. 108.) The course of pleading, however, may be such as to dis- 
 pense with the proof of infancy. Upon the issue of necessaries or 
 not, when specially pleaded, no evidence of minority is requisite, 
 the fact being admitted by the course of pleading : the burden of 
 proving the issue of necessaries, in such a case, is on the plaintiff. 
 (2 GreenUafs Eo. § 364.) 
 
 § 146. The fact of infancy may be proved by the testimony of 
 persons acquainted with the party from his birth, and who can 
 speak from recollection upon the subject. The fact may also be 
 proved, like other facts in the case, by the admissions of tlie party; 
 for, although the party can know nothing personally of his birth, 
 when he asserts what his age is, it is presumed that he speaks from 
 information which is reliable. The admissions of an infant, gener- 
 ally, are competent evidence against him, both in civil and criminal 
 cases, when they relate to a matter for which the law holds him 
 accountable. {Haile v, Lillie, 3 HilVs [i\^. Z!] E. 149. McGoon 
 v. /Smith, lb. 147. Eex v. Thornton, 1 Moody''s R. 29. Mather v. 
 Clarh, 2 AiJc. [Fi!.] E. 209.) But the admissions of an infant 
 should be weighed cautiously with reference to his age and under- 
 
PROOF OF INFANCY. 213 
 
 standing. {The State v. Guild, 6 JBalst. [iV^. J.] B. 163, 189, 190.) 
 Church books also have been held to be competent evidence to go 
 to a jflry to establish the fact of infancy. {Bosthwich v. Carruthers, 
 1 Term. B. 648.) An almanac, in which a father had written the 
 nativity of his son, was allowed to be strong evidence. (H&rbert v. 
 Tv-cTcal, 1 Raym. B. 84.) 
 
 The entry of the baptismal register of the infant's birth is no 
 proof of his age. {Bex v. Glapham, 19 Eng. C. L. B. 260. 
 'WUson V. Law, 14 iib. 163. Burghartv. Augustein, 25 ib. 641.) It 
 seems, however, that if the entry was made by the parents, it may 
 be admitted as their declaration, and, in the ecclesiastical court, 
 it is strong adminicular evidence of minority. (2 Greenl. Mv. 
 % 363. Agg v. Damies, 2 Phill. B. 345.) 
 
 The infant's own affidavit of his infancy, together with proof of 
 
 the registry of his baptism, was held not sufficient proof to justify 
 
 the court in setting aside a warrant of attorney on the gi-ound of 
 
 infancy. {Tyr. <& Or. B. 512. Weaver \. Stokes, \ Mees. cS: 
 
 Wels. B. 203.) 
 
 In the United States, where births are required to be recorded, 
 the original record, or a copy thereof, is usually received as suffi- 
 cient evidence of the fact it recites, which it is the, duty of the 
 officer to record. (2 Greenl. Ev. § 36S, note 4.) 
 
 Parish registers of places out of the country where they are 
 offered in evidence, are regarded with less confidence than those of 
 the place wherein they are offered ; and Lord Kenyon, it seems, 
 when Master of the Eolls, refused to receive a register of the 
 neighboring island of Guernsey. {Hunt v. LelUsurier, 1 Cox^s 
 B. 275.) 
 
 It seems that the entry of baptism contemporaneously njade by 
 a RomanCatholic priest, in the discharge of his ecclesiastical duty, 
 in his church record of baptisms, is competent evidence, after 
 his death, of the date of the baptism, if the book is produced from 
 the proper custody ; although he was not a sworn officer, and the 
 record was not required by law to be kept ; so held by the supreme 
 judicial court of Massachusetts, in a very late case. {Kennedy v. 
 Doyle, 10 Gray's B. 161.) This was upon the ground that the death 
 ■ of the priest made his register evidence^ upon the same principle 
 that an entry of tithes in the books of a deceased rector, the books 
 of charges of a deceased attorney, or those of a deceased solicitor, 
 for professional services, memoranda, signed by an attorney of his 
 
214 LAW OF INFANCT. 
 
 having served an order or notice, and an entry made by a deceased 
 clerk, in a notary's book, of the dishonor of a bill of exchange, and 
 the like, are competent evidence of the facts therein stated, which 
 has been, admitted in a great number of cases, both in England and 
 in this country. The ground of the admission of such evidence, is 
 Btated by Lord Chief Justice Tindal, in the case of the entry in the 
 notary's book^ " that it was a;n entry made at the time of the 
 transaction, and made in the usual course of business, by a person 
 who had no interest to misstate what had occurred." {Poole \. 
 Dicas, 1- Bing. JV. C. 652.) In a very early case, the supreme 
 court of Connecticut admittted the record of a baptism by a 
 minister of a parish, who had since died, as evidence of the fact of 
 baptism. {Huntley v. Compstooh, 2 Booths R. 99.) And it has 
 often been held in the commonwealth of Massachusetts, that the 
 book of a bank messenger or a notary public, kept in the usual 
 course of business, though not required by law, is competent 
 evidence after his death. {Walsh v. JBarret, 15 Mass. R. 380. 
 Porter v. Judson, 1 Gray's R. 175.) Similar decisions have been 
 made by the supreme court of the United States, and by other 
 American courts of authority. {Nicholls v. Webh, 8 WJieat. R. 326. 
 Gale v. Nofris, 2 MoLeam^s R. 471. Sheldon v. Benham, 4 HiWs 
 [i\r. F.] R. 131. Nourse v. McCoy, 2 RawWs [Pa.J R. 70.) On 
 these authorities, the record of baptisms of the Massachusetts 
 deceased Eoman Catholic pi'iest, was admitted as evidence of the 
 date of the particular baptism. 
 
 § 147. By the feudal law, the guardian having the whole profits 
 of the estate, that he might be enabled to breed the infant up to 
 arms, was not admitted, where the right of inheritance was in 
 demand, to prosecute or defend for the infant ; and the infant, 
 being incapable of acting for himself, the action was in such cases 
 suspended till he came of age. Hence in all cases where a naked 
 right in fee descended from an ancestor to an infant, then in every 
 action ancestorial brought by the heir within age, the parol was 
 required to demur, for the law judged it less prejudicial that the 
 infant be delayed of his right, than that he should run the hazard 
 of losing it forever, which he might be in danger of by his want of 
 knowledge in setting forth his title ; and the parol was required to 
 demur in equity the same as in law. {Bing. on Inf. 145, 146.) 
 There were various other cases in which the parol demurrer was 
 required, but the doctrine long since was rendered inapplicable 
 
PAROL DEMUBEEB. 215 
 
 t 
 
 except in debt against the heir on the bond of his ancestor, and 
 now the right of parol demurrer is abolished in England, by statute, 
 and it is of no consequence to dwell upon the subject. (11 Geo. I F", 
 andlWm.IV,ch.4n.) 
 
 The parol demurring stayed all proceedings in the suit, except 
 that a receiver was sometimes appointed. {Sweet v. Partridge, 1 
 Cox^s R. 433.) The right of the parol to demur is abolished in the 
 State of New York, and the doctrine is scarce recognized in any 
 of the American States at the present time, and especially in cases 
 of devise or descent. 
 
 § 148. According to the old and well settled rule of practice in 
 a court of equity, in cases against an infant, a day was given the 
 infant defendant when he came of age, usually six months, to show 
 cause against a decree, and make a better defense, and the defend- 
 ant was called in for that purpose by the usual process of the court 
 to obtain jurisdiction of the person of the defendant ; and this is 
 the general rule at the present day, except in cases specially pro- 
 vided by statute. The decree in ordinary cases which does not 
 give a day will be bad on the face of it, and will be reversed on 
 appeal for that error alone, or will afford ground for a bill of 
 review. {Thomas v. Gyles, 2 Vern. E. 232. Gary v. Bertie, II., 
 342. Eyre v. Shaftsbury, 2 P. Wins. E.V20. Napier v. Effmgham, 
 Ih. 401. Bermett v. Lee, 2 Ath. P. 529. Kelsall v. Kelsall, 2 
 Myhie c& JTeene's P. 409. Jackson v. Turner, LeigKs [ Fa. j P, 
 119. Buler v. Bullitt, 4 BihVa \Ky.'\ P. 11. Colla/rd's Eeir's 
 v. Groom, 2 J. J. Marsh. [Ky.] P. 487, 488. Jones' Hei/rs v. 
 Adair, 4 ib. 220. AmoWsAdmr. v. Voorhies, Ih. 507, 509. Pass- 
 TThore's Heirs v. Moore, Ih. 591, 593. Harlan v. Barries' Admur. 5 
 Dana's [iTy.J P. 219, 223. Lee v. Bra/xston, 5 Gall's [ Fa.] -S.459. 
 
 Although the right of the parol to demur is abolished in Eng- 
 land, the rule of the English courts still continue to give the infant 
 a day. In a foreclosure suit it has been lately held in the English 
 court of chancery that the decree must be taken, reserving a day 
 for the infant to show cause, and that there is nothing in the trustee 
 act of 1850 to alter the rights of the infant. {Newberry v. Mar- 
 tm, 2 Ikg. Law and Eq. P. 106.) 
 
 There seems to be a distinction made in England between cer- 
 tain mortgage cases. When the decree directs the mortgaged 
 premises to be sold, the infant has not his day to show cause ; but 
 on a decree of a simple foreclosure, the infant is allowed his six 
 
216 LAW OF INl^NCr. 
 
 months to show cause against the decree. {Booth v. Bicji, 1 Vem. 
 B. 296. Godier v. Ashton, 18 Ves. li. 83. Williamson v. Gordon, 19 
 ih. 114. Scholefield v. Eeafield, 7 Simons^ JR. 66Y. F^'f^e aZso Powy* 
 V. Mmsfield, 6 i5. 637. Matlock v. G^a^fora, 3 P. Fms. P. 352.) 
 
 The rule in the State of New York is substantially the same as 
 in England, except that in cases of strict foreclosure in England 
 the infant is allowed six months after he comes of age to show 
 cause against the decree {MaUach v. Galton, supra) ; whereas, in 
 ISTew York, the time allowed for redemption, upon a bill for strict 
 foreclosure, is not certain, but rests in the discretion of the court. 
 (2 Barb. Gh. Pr. 190. Pervne v. Bmin, 4 Johns. Gh. R. 140.) 
 However, it has been held that, except in cases specially provided 
 by statute, an infant defendant is entitled to six months after 
 his coming of age to show cause against a decree affecting his title 
 to real estate. Wlien a deed to the infant's ancestor was set aside 
 as fraudulent, the court directed a clause to be inserted in the 
 decree giving him such day. {Harris v. Youman, Soff. Gh. B. 
 178.) And in another case it was held that a decree against 
 infants setting aside a conveyance made in trust for them, which 
 decree contains no provision allowing them a day to show cause 
 after they shall become of age, is erroneous, and is not conclusive 
 upon them ; and further, that if the infants have any valid interest 
 in the trust property, they are entitled to relief in a court of equity, 
 and that the error for not inserting the provision allowing such day 
 may be corrected either by original bill or by bill of review. 
 {Wright v. Miller, 1 Sand. Gh. B. 103. lb. 4 Barl. B. 600. 3. 
 4 Seld. B. 9.) 
 
 In the State of California, the supreme court has held that a 
 decree against an infant without giving him a day to show cause 
 against it, deprives him of no rights which the law gives him. 
 {Begla v. Ma/rtin, 19 Gal. B. 463.) 
 
 In a mortgage case, if, instead of seeking a foreclosure of the 
 mortgage against the infant heir of the mortgagor, there is a decree 
 for the sale of the mortgaged premises, the decree, as in England, 
 will bind the iiifant ; and a sale is usually regarded as the most ' 
 beneficial to both ps^rties. {Mills v. Bennis, 3 Johns. Gh. B. 367.) 
 
 § 149. In the late court of chancery of the State of New York, 
 the doctrine of the demurring of the parol, and the giving a day 
 to an infant to show cause, has been carefully examined, and the 
 distinction between the practice in the two cases distinguished. 
 
PAEOIj DEMITRRER. 217 
 
 The suit -was brought to set aside the deed of an infant's ancestor 
 for fraud, and the court determined to set the deed aside. Some 
 of the defendants were infknts, and in considering the question as 
 to giving them a day to show cause, the assistant vice-chancellor, 
 the Honorable Murray Hoffman, said : ' In the case of Price v. 
 Career (3 Mylne & Craig's B. 161), this subject was entered into at 
 length. The bill was by an equitable mortgagee for a foreclosure, 
 and the decree as finally settled was, that the infant upon coming 
 of age convey the premises, with the usual clause that the decree 
 be binding upon him, unless upon being served with a subpoena he 
 show cause against it within six months after coming of age.' The 
 lord chancellor then notices the difference between the parol 
 demurring and the giving a day to show cause. He considei's that 
 the parol demurred in equity only when it demurred at law, and 
 cites Flasket v. Beeby (4 East JR. 485), as well explaining the origin 
 and limits of the rule at law. 
 
 " From the case of Price v. Cwrver, and that of Lechmere v. 
 Brasi&r (2 Jac. <& Walker's R. 281), it appears, that when real estate 
 descended to an heir at law, and there was not a trust power to 
 sell, specialty creditors could not obtain a sale of the real estate 
 until the infant came of age. But if jthere was a devise in trust to 
 sell, or a power to sell and convey, so that a deed could be executed 
 by another competent, to transfer the legal title, th& parol could 
 nbt demur, nor was a day given to show cause. {Black v. Wilder, 1 
 West's B. 341.) And when a sale was directed to be made, but no 
 power given to executors or others to make it, and therefore the 
 estate descended to the infant heir, clothed with a trust to sell, the 
 parol did not demur, but a day was given to show cause against 
 the decree, upon coming of age, and the conveyance was not to be 
 executed until then. ( Uvedale v. Uvedale, 3 Atk. B. 118. Black 
 V. Wilder, ut swpra. Pope v. George, 4 Ves. B. 370 n.) It was said 
 by Lord Hardwicke {Sheffield v. Buckingham,, West's R. 684), tliat 
 he took it to be the course of the court, not to give a day, unless a 
 conveyance is directed, either in form or siibstance. And in Wilk- 
 vnsorh V. Olvver (4 Hen. (& Mimf, B. 450), it is said, that whenever 
 an infant is decreed to do an act, he must have six months given 
 him after coming of age in the decree ; but not when lands are 
 decreed to be sold, unless he is to join in the conveyance. See also 
 Bingham v. Clanmorris, 2 Molloy, 393. But a careful examination 
 of the cases shows that^ even upon the foreclosure of morto-ages 
 28. 
 
218 ZAW OF INFANCY. 
 
 this clause is inserted. {MatlooTc v. Gallon, 3 P. Wms. E. 352. 
 Zyne v. WaUis, lb. n. Williamson v. Gordon, 19 Ves. E. 114.) 
 I apprehend the English rule to be, that, except in special cases, 
 such as where there is an equitable mortgage only, no conveyance 
 is ordered upon a bill of foreclosure. The legal title passed. by the 
 English doctrine, under the mortgage, and the equity in this court 
 was extinguished by the foreclosure. (3 Powell on Mortgages, 965, 
 988. Willimson v. Gordon, ut swpra.) So in our court in former 
 times, the decree declared only the equity of redemption ban-ed, 
 and ordered a delivery of title deed. {Browne v. Gold, l&th May, 
 1800, Knox V. Pollock, 3d July, 1800 ; Cooper v. KirTcland, 11th 
 August, 1800.) In the case of Pye v. Damhurrj (3 Pro. C. R. 
 595,) a mortgage was made in fee, when the party wa!fe only tenant 
 in tail, and there was a covenant for further assurance. This was 
 held binding on his assignees, he having become bankrupt, and it 
 was urged that they were bound to suffer a recovery. The decree 
 was for them to execute proper conveyances upon being foreclosed. 
 Here the title under the mortgage as it stood was not perfect. 
 
 " The leading case of Spencer v. Bangs (4 Yesey's E. 370), illus- 
 trates the English rule. There copyhold lands were mortgaged in 
 fee by lease and release. There was a covenant for further assur- 
 ance. This was held to bind the customary heir. But, as he was 
 an infant, the decree (the bill being for foreclosure) was that an 
 account be taken, etc., and upon the defendant's paying to the 
 plaintiffs the amount reported due, etc., the plaintiffs were to 
 reconvey, but, in default of such payment, the plaintiffs were to be 
 let into possession of the premises, and to hold the same until the 
 defendant should attain twenty-one years of age, and upon attain- 
 ing that age the defendant was to surrender the mortgaged prem- 
 ises, and the decree was to be binding upon the infant, unless, etc. 
 So, Price y. Carver, before cited, and Scholejield v. Heafield (T 
 Simons'' E. 670), were cases of equitable mortgages. Again, in Eyre 
 V. The Countess of Shafisiury (2 P. Wms. E. 120), it is said by Sir 
 Joseph Jackyll, that in all decrees against infants, even in the 
 plainest cases, a day must be given to show cause when they come 
 of age. The case of Sir John JVapier v. Effingham, (1 P- Wms. B. 
 401, 3 Br. P. C. 1), is much in point. The infant brought a bill to be 
 relieved against several settlements unduly obtained; and the 
 defendant, Lady Effingham, brought a cross-bill to have a convey- 
 ance to an estate settled on her by a particular deed, and for other 
 
PAnoh DnnxmRER, 219 
 
 purposes. A decree was made, among other things, dismissing the 
 original bill, as to a particular settlement. On an appeal to the 
 House of Lords, so much of the decree as directed the dismissal of 
 the plaintiff's bill, in relation to a settlement of July, 1818, was 
 aflBrmed, with the addition of the words, ' unless the plaintiff, Sir 
 John Ifapier shall,' etc. And, as the cross cause was also before 
 the court, the decree further directed that the trustees should con- 
 vey, ' unless the said John should, within six months,' etc. We 
 see in this decree an example of a conveyance by trustees respited, 
 until the infant, who would have otherwise inherited the lands, 
 came of age. When the cause was afterward before the court of 
 chancery, upon a petition of Sir John Napier, upon coming of age , 
 leave was given him to amend his answer to the cross-bill, and to 
 rehear the causes. And the court say that all decrees against 
 infants give six months after they come of age to show cause. 
 Eut the amending the original bill, after a dismissal upon the 
 merits, was held to be without precedent, and refused. This order 
 was affirmed by the lords. (3 Brown^s P. C. 301.) See also Kelzal 
 V. Kelsall (2 Mylne c& Keen^^ R. 409), in which Lord Brougham 
 went carefully into the cases respecting an infant's rights to make 
 a new defense, and the principles on which they proceed. 
 
 " Sales in England have sometimes been ordered upon bills of fore- 
 closure, with the mortgagor's consent, and, I suppose, upon the 
 general right of a specialty creditor, to obtain a sale. {Monday v. 
 Mondey, 1 Yesey <& Beomiei B. 223. Beaton on Decrees, 274.) 
 But prior to the statute (1 Wm>. IV, oh. 47, § 1) the infant was not to 
 convey until of age, and, of course, had his day. By that act, 
 when any suit is instituted for the payment of debts, and a decree 
 of sale is made, the court may compel the infant to execute convey- 
 ances, which shall be as effectual as if the infant was of full age. 
 
 " It appears to me, as the result of these authorities, that, in Eng- 
 land, independent of statutory provisions, the rule generally is, 
 that, whenever the inheritance of an infant is bound by a decree, 
 there must be a day given him to show cause, whether a convey- 
 ance is decreed or not. The parol demurrer stays all proceedings 
 in the suit, except that a receiver will sometimes be appointed. 
 {Sweet V. Partridge, 1 Cox's B. 433.) But when the cause goes on, 
 the decree is completed, with a respite of conveyance if necessary, 
 and with a day to show cause, whether they are requisite or not. 
 I have already noticed some exceptions. 
 
220 LAW OF INFANGT. 
 
 " In applying these rules of tlie English court to cases in our own 
 state, there are some instances in which statutory provisions remove 
 all difficulty. Under the act of 1813 (1 Ji. L. 316), the privilege 
 of the parol demurring was abolished ; the action was not to be 
 delayed by reason of the nonage of the heir or devisee sued. By 
 the present law, suits against heirs and devisees are not to be sus- 
 pended by reason of their infancy, but guardians are to be 
 appointed as in other cases. (2 R. S. 454, § 43.) 
 
 " Suits may now be prosecuted against heirs and devisees jointly, 
 either at law or ip. equity, to. charge them with the debts of the 
 ancestor, pn account of lands descended. (2 R. S. 456, § 60. 
 Lcms 1837, p. 537, §§ 73, 74. Pa/rsons v. Broume, 7 Fatge's R. 360.) 
 When it is found that the heir has lands descended to him not 
 aliened at the commencement of the suit, the court is to decree 
 that the debt be levied of such real estate descended. (2 B. S. 
 454, §. 47.) And by section 54, execution on this decree, when the 
 devisee or heir is an infant, is suspended for one year. (See also 
 1 i?. Z, 1813, § 6.) , 
 
 "Now, by the statute of 11 George lY and 1 "William lY, chap- 
 ter 47,, section 10, the abolition of the right of the parol to demur is 
 made. in terms even, more comprehensive and decisive than is our 
 own act. Yet Jjord Gottenham, in Pricey. Carver, ^race&Ai upon 
 the, distinction between the parol demurring and giving a day to 
 show cause, and holds the latter requisite when the former was 
 abolished. Under our statute the debt is to be levied by execution, 
 and a sale is made, by the sheriff. E"o conveyance is therefore 
 necessary from, the infant. But still the point is not reached 
 whether the day tOi show cause must not be given, and all the 
 consequences of making a new defense be allowed. 
 
 "In partition cases in, England, the parol does not demur at law, 
 nor has the infant a day to show cause. But in equity, although a 
 decree be made, conveyances must be executed, and are respited in 
 cases of infancy until the arrival at age of the party. In our own 
 courts, conveyances were held unnecessary under the old statute. 
 The decree was the same as the judgment at law. When a sale is 
 ordered in a partition suit, the provisions of the statute are so 
 ample and decisive as to dispense with the necessity of giving the 
 infant a ,day. 
 
 " In mortgage cases it was formerly the course of our courts to 
 direct a sale by the sheriff when the mortgagor was absent or con- 
 
PAROL DEMURREB, 221 
 
 cealed, and in ordinary cases to decree it nnder the direction of a 
 master, with all proper ' parties to join in the deed. See the 
 statutes and cases, 2 HoffmarHs Oh. Pr. 95, nbU 3. In Lawler v. 
 Burry, 10th January, 1801, such a decree was made, with a day 
 given to the infant to show cause, six months after coming of age, 
 upon being served with a subpoena. A like decree was made in 
 Gardner v. Robertson, 15th September, 1800. In April 1801, the 
 first act was passed authorizing sales and conveyances by a master. 
 (1 Webster c& Skin. 443, § 13.) The provision is contained in that 
 act which has been adopted in every subsec[uent statute, that the 
 master's deed should be of the same validity as if executed by 
 ^he mortgagee and mortgagor, and be an entire bar against them 
 and their heirs. From that time I presume no decree in such a 
 case has given a day to show cause. And by the statute and the 
 universal practice the omission is fully sanctioned. 
 
 " It may be that thedoctrine in our state respecting mortgages is 
 so entirely changed as that even upon a bill of strict foreclosure, a 
 conveyance by the mortgagor should be decreed, and in a case 
 before me, in October Term, 1839, 1 directed a clause to be inserted 
 that the complainant might, if advised, compel a release from the 
 mortgagor, without, however, it being deemed essential. If the 
 heir was an infant, of course in such a case a day must be given. 
 If, on the other side, the bill is to redeem a mortgage, a declaration 
 and decree that it is satisfied might be sufficient. The execution 
 of a satisfaction given is of course so: But if either this or a con- 
 veyance was deemed necessary, and the infant was an heir, there 
 would be something for him to do, and he must have his day. 
 
 " In JBraxton v. Zee's Sevrs (4 Men. c& Munf. R. 389), commis- 
 sioners were appointed to set out dower, and they awarded that 
 the guardian of the infant should pay at the rate of $50 per 
 annum for rents and profits from the time the bill was filed, the 
 decree was held void, among other things, for not giving the infant 
 a day to show cause. 
 
 " In Wilkmsor^s Adm/r. vl OUerUs Bejpresentatmes (4 Hen. c& 
 Munf. R. 450), there was a decree for sale of lands to pay debts; 
 commissioners to conduct it. The chancellor said, when the infant 
 is decreed to do an act, as when he is foreclosed, a day is given. 
 But not when lands are decreed to be sold, unless , he is to join in 
 the conveyance. Commissioners execute deeds in Virginia where 
 a sale of land is decreed. 
 
222 LAW OF INFANCY. 
 
 " Upon the -whole, I consider the rule is broader than Lord Hard- 
 wicke stated it in the single case referred to, and that in general the 
 infant must have his day when his inheritance is affected." {Har- 
 ris V. Yov/man, Hoffmanns Ch. S. 178, 185.) 
 
 This case was decided a quarter of a century ago, but the rule 
 with respect to the parol demurrer, and giving day to the infant is, 
 in principle, the same now as it was then ; and as the practice in 
 these cases is so little understood by the profession, it was thought 
 best to give the case in extenso', as containing an epitome of the 
 practice upon this very important subject, both in England and in 
 this country. In a word, it may be averred that the parol demurrer 
 is abolished, but that a day must be given to the infant when he 
 comes of age, usually six months, to show cause against a decree 
 affecting his title to real estate, except in eases specially provided 
 for by statute, and that this is the rule of practice both in this 
 country and in England. 
 
 § 150. An infant who has a day given to him, after he comes of 
 age, to show cause against a decree, cannot assail the decree in any 
 mode he pleases by that day, but must first obtain the leave and 
 direction of the court. {Field v. WilUamson, 4 Sand. Ch. Hi 613.) 
 
 But in a case where a day has been given to show cause, an 
 infant, before he comes of age, may apply for leave to put in a 
 better answer. This permission will not be granted as a matter 
 of course, but it must depend upon the circumstances shown to 
 the court. {Bennet v. Zee, 2 Atk. B. 529.) 
 
 In the State of Virginia it is provided by statute, that an infant 
 defendant may have six months after he comes of age, to show 
 cause against a decree entered against him, and if the decree be 
 reversed, he will have restitution of the proceeds of any sale under 
 it, although it is declared that the sale shall be valid. {Code of 
 1849, oh. 1Y8, §§ 7, 8.) 
 
 If the infant succeeds in showing that the decree ought not to 
 have been made, the court will place him, so far as is conveniently 
 practicable, in the situation in which he was before the decree was 
 made. {Po;pe v. Lemaster, 6 lAttelVs [-2y.J R. 80. Prutzonan v. 
 Pitesell, 3 Hwrr. & Johns. \Md.'\ E. 77, 82.) It is held, however, 
 that a decree need not give a day to infant complainants, as they 
 have no right to overhaul the decree. {Williamson^ s Hei/rs v. 
 JohnstorHs and NasNs Heirs, 4 Monroe's \_Ky.] E. 253, 255. 
 Jameson v. Manley, lb. 414, 416. Hanna v. Spoifs Hivrs^ 5 B. 
 
INFANTS IN VENTRE SA MERE. 223 
 
 Monroe's \Ky.] R. 362, 367. Brown v. Armistead, 6 RamddlpKs 
 [ Ya.\ B. 574, 602.) And in all cases of judicial acts of the court 
 "vvhich are performed under an authority not derived from the 
 infant, the same are binding upon them and conclusive ; such as 
 decrees of sale under mortgage, or under a power in a will to sell, 
 hereinbefore referred to. ( Vide Mills v. Dennis, 3 Johns. Ch. B. 
 367, 369. Brown v. Armistead, supra.) 
 
 It was doubted in ancient times, whether a recovery barred an 
 infant who appeared by his guardian, but it was afterward settled, 
 that if an infant appeared by guardian and vouched the common 
 voucher, and so suffers a recovery, it could not be reversed for 
 error. If the recovery was to the infant's prejudice, he had his 
 remedy against the guardian. {MoPherson on Inf. 463, and cases 
 died.) And it may be submitted as a general proposition, that an 
 infant can make no new defense after decree, unless the decree 
 itself gives him a day to show cause against it, a permission which 
 would be unnecessary if infants could, in all cases, make a new de- 
 fense after the decree, whenever they came of age ; and that in all 
 other cases he is finally bound. {MoPherson on Inf. 4-29.) Of course 
 a judgment against an infant in cases of tort, or contracts which are 
 absolutely binding upon him, is as conclusive upon him as upon an 
 adult, and a judgment in partition is binding on an infant defendant, 
 although in all cases the judgment must be regularly entered upon 
 the appearance of the infant, by his guardian ad litem. ( Vide 
 Croghan v. lAmingston, 17 iT. Y. B. 218. AUhouse v. Badde, 3 
 Bosw. [IT. Y. S. C] B. 410. Vide aUo ante, § 120.) 
 
 CHAPTEE XIY. 
 
 OF rNFAlTTS rs VENTRE SA MEEE WHEN CONSmEEED IN ESSE — WETT 
 
 DE VENTEE INSPICIENDO OF POST-TESTAMENTAET CHILDEEN — OF 
 
 ILLE&rrTMATE CHILDEEN. 
 
 § 151. An infant in ventre sa Tnere, is a child in its mother's 
 womb, and for the benefit of the child the civil law reputes an 
 infant in its mother's womb in the same condition as if born. 
 (Godolph. Orph. Leg. 102.) It is also well settled, both in Eng- 
 land and in this country, that an infant in vmii/re sa m,ere is 
 
224 LAW OF INPANCr. 
 
 deemed to be in esse, or in being, for the purpose of taking a 
 remainder, or any other estate or interest which is for his benefit, 
 whether by descent, devise, or under the statute of distribution. 
 (4 Kent's Com. 249. Mogg v. Mogg, 1 Merw. R. 655. Clarhe v. 
 Blake, 2 Bro. Oh. B. 320. Cooper v. Forbes, Ih. 63. Trower v. 
 Butts, 1 8vm.. & SiM. E. 181. Beale v. Beale, 1 P. Wins. E. 244. 
 Northey v. 8t/rang, II. 342. Burdet v. Hopegood, Ih. 486. Dog 
 V. (7fc7-^, 2 j5". -BZ. i?. 399. ^afo v. Hale, Pr. Ch. 50. EaioUns 
 V. RoAjolms, 2 Coi»'« (!7ases, 425. Thellmson v. Woodford, 4 Fe«. /r. 
 S. 227. TFaZMs v. Eodson, 2 J.^^. ^. 117. Musgrame v. Parry, 
 2 Ferrt. ^. 710. 6^*5so«; v. Gibson, 2 ^wem. i?. 223. rayZor v. 
 Bydall, 1 *&. 243. iTwse v. Terworth, 3 Swanks E. 620. /*?■»«'« 
 Lessee v. Flamer, 5 Harr. <& John. [Md.'] E. 10. Stedfast v. 
 JViohoU, 3 JbAns. [iT. Z.] Cases, 18. /Sio*/)! v. Buffield, 5 /Sey-p-. c& 
 :SawZ«'s [Pa.j ^." 38. Ma/i'selUs v. Thalkwier, 2 Pa*^e'« [iT. Z] 
 ^. 35. Jenkins v. Freyer, 4 t5. 47. -Sone v. Fa»i Schaiek, 3 
 ^orS. [i\^. 7".] (7A. -S. 488. ifasora v. Jc>nes, 2 ^owJ. [If. T. 8. 
 C] E. 229, 251.) 
 
 § 152. By the civil law, a child in ventre sa mere may be 
 appointed executor, or may take a legacy. If there be two or more 
 at the birth they may be joint executors or joint legatees of the 
 thing bequeathed. {Oodolph Orph. Leg. 102.) By the civil law 
 of successions a posthumous child is entitled to the same rights as 
 those who are born in the life-time of the decedent, but only on the 
 condition that the child is bom alive and under such circum- 
 stances that the law presumes they wiU survive. Children in 
 the mother's womb are considered, in whatever relates to them- 
 selves, as if already born ; but children born dead or in such an 
 early stage of pregnancy as to be incapable of living, although they 
 be not actually dead at the time of their birth, are considered as if 
 they had never been born or conceived ; and this rule of the civil 
 law has been adopted in France. {Code Napoleon, art. 725, 906. 
 Vide Domat Prel. B. tit. 2, n. 1, arts. 4, 6, 6 ; pt. 2, lib. 2, Ut. 1, 
 § 1, arts. 6, 7.) Domat says: " Still-bom children, are not counted 
 in the number of children who succeed. And although they were 
 alive in their mother's womb at the time the successions where 
 concerned them fell, yet they have no share in them, for they are 
 considered in the same manner as if they never had been born." 
 {Domat, supra.) Children born within the first six months after 
 conception are considered by the civil law as incapable of living ; 
 
INFANT^ IN VENTRE SA- MERE. 225 
 
 and, therefore, althougli they are apparently born alive if they do 
 not in fact survive so long as to rebut the presumption of law, they 
 cannot inherit so as to transmit the property to others. {Code 
 Napoleon, wrU. 312, 725, 906. Domat Prel. B. tit. 2, § 1, aH. 5. 
 MarselUs v. Thalhimer, 2 Paige^s P. 41, 42.) 
 
 § 153. The common law upon the subject is similar to the civil 
 and the French law. Thus, by the law of England, a child in 
 ventre sa mere may be vouched ; is capable, of taking ; the mother 
 may detain charters in its behalf; a bill may be brought in its 
 behalf; a court of equity will grant an injunction in its favor to stay 
 waste ; and the destruction of such a child is murder. {Musgrame 
 V. Parry y 2 Yern,. P. 710. Bing. on Inf. 104.) So it is admitted 
 in all the books, that a devise to an infant when he shall be born, 
 and that the freehold shall descend to the heir in the mean time is, 
 good as an executory devise ; and whatever doubts were formerly 
 entertained on the subject, it seems now to be agreed that a devise 
 to an infant in ventre sa mere is good, though he be born after the 
 testator's death, and he will take by way of executory devise. So 
 also it is clear that if land be devised for life, the remainder to a 
 posthumous child, this is a good (Contingent remainder, because 
 there .is a person in being to take the particular estate, and if the 
 contingent remainder vests during the continuance of the particular 
 estate, eo instanti that it determines, it is sufficient. {Bing. on 
 Inf. 105. Snow v. Cutler, 1 Sid. P. 153. Peeves v. Long, 1 JSalk. 
 P. 228.) But it was formerly held that a man could not surrender 
 copyhold lands immediately to the use of an infant in ventre sa 
 mere, though he might by way of remainder ; for a surrender is 
 a thing executory, and nothing vests before admittance; and, 
 therefore, if there were a person to take at the time of admittance 
 it was sufficient, and not like a grant at common law, which, putr 
 ting the estate out of the grantor, must be void if there be nobody 
 to take. {Bing. on Inf. 105.) 
 
 A posthumous child is within a provision in marriage articles 
 for such children of the marriage as should be living at the death 
 of the father or mother, and will take under the statute of distribu- 
 tions. . {Miller V. Tvyrner, 1 Ves. P. 85. Burnet v. Mann, Ih. 156.) 
 So an infant in vent/re sa mere is within a devise to " all and every 
 the children of J. 0. at twenty-one." {Cosgrove y. Cosgrove, 1 Br. 
 Ch. Ca. 530. But vide Huglies v. Hughes, 3 ih. 352.) So also an 
 infant in ventre sa m£re, \Yho, by the order and course of nature,. is 
 29 
 
226 LAW OF INI'AN<W. 
 
 living, comes clearly within the description of a child living at the 
 time of its father's decease. {Doe v. Clarice, 2 H. Black. R. 399.) 
 But if a man seised of land in fee die, his wife privement enciente, 
 (privily pregnant) with a son, and a stranger abate and die seised, 
 and afterward the son is born, his entry is tolled by the descent, 
 because at the time of the descent he had no right to enter, not 
 being in esse, and by consequence had no wrong then done him, 
 and the lord had none but the heir to avow upon at the time of the 
 descent. {Co. Litt. 245 5.) 
 
 Where the birth of a posthumous child divests an estate which 
 has descended on an heir at law, and such child takes by descent, 
 the intermediate heir retains the profits which accrue during the 
 interval. {Bassett v. Basseti, 3 Atk. R. 202. Goodtitle v.* New- 
 man, 3 Wils. R. 526.) 
 
 By the strict rule of the common law, if a person were tenant for 
 life, remainder to his oldest son in tail, and died without issue born, 
 but leaving his wife enciente, and after his death a posthumous son 
 was born, this son could not take the land by virtue of this remain- 
 der, for the reason that the particular estate determined before 
 there was any person in esse, in whom the remainder could rest. 
 But to remedy this hardship, it has been enacted by the British 
 parliament, that posthumous children shall be capable of taking in 
 remainder, in the same manner as if they had been bom in their 
 father's life-time, that is, the remainder is allowed to vest in them, 
 while yet in their mother's womb, and they are entitled to the 
 intermediate profits from the death of the parent. (10 and 11 
 Will. Ill, ch. 16.) 
 
 § 154. It seems that in England, in imitation of the civil law, a 
 child in ventre sa mere, may be appointed executor, and if the 
 mother bring forth two or three children at that one birth, they 
 are all to be admitted executory. {McPherson on Inf. 566.) 
 
 An infant in ventre sa mere, is regarded as a life in being for the 
 purpose of preventing the alienation of property, and any limita- 
 tion may be made by way of executory devise, etc., provided the 
 same is to take effect within a life or lives in being, including 
 among those lives, children then in ventre sa mere, and twenty-one 
 years beyond the death of such life or lives and the time of gesta- 
 tion, so as to allow for the birth of a child in ventre sa mere, that 
 is to say, the time of gestation may be taken both at the beginning 
 and at the end. {TheWuson v. Woodford, 11 Ves. R. 149.) 
 
INFANTS IN rSNTBE SA MERE. 227 
 
 The father may appoint a guardian under the English statute, 
 for an infant in ventre sa mere, but the spiritual courts cannot 
 appoint one in such a case. (12 Gar. II, ch. 24, § 8. Thdluson v. 
 Woodford, 4 Ves. B. 322.) " If the daughter, the son being in 
 ventre sa mere, be forejudged, it shall bind the son that is born 
 afterward, because he had no right at the time of the forejudg- 
 ment." {Co. lAtl. 100 5.) In accordance with this principle, the 
 courts of equity held that, if a decree is made in a cause, and then 
 an infant is born, who if bom before the decree would have been 
 a necessary party to the suit, and would have had a day given to 
 show cause against a decree, such an infant shall be bound by the 
 decree. If an infant is born during the progress of a cause, he is 
 bound by aU the proceedings up to the time of his birth. {MoPh&r- 
 son on Inf. 567.) 
 
 § 155. There is an ancient proceeding at common law where a 
 widow is suspected to feign herself with child in order to produce 
 a suppositious heir to the estate. In this case the Heir presumptive 
 may have a writ de ventre inspioiendo — "of examining the abdo- 
 men," to examine, by a jury of matrons, whether she be with child or 
 not ; and if the jury find her with child, then she is to be removed 
 by a second writ, issuing out of the court where the first is returnable, 
 to a castle, where the sheriff is to keep her safely tiU delivered ; 
 but if the widow be, upon due examination, found not pregnant, 
 the presumptive heir will be admitted to the inheritance, though 
 liable to lose it again on the birth of a child in due time. This 
 writ is of common right, and it may be had by a person who is 
 entitled only to an estate tail, or by a devisee. A proceeding 
 analogoiis to this writ has been decreed upon a bill in equity, where a 
 sum of money was devised to a charity on the death of a certain 
 person without issue, that person dying and leaving a widow of ill 
 fame, who pretended to be with child. (Attorney- General v. Za 
 Roche, cited 2 P. Wms. B. 591.) The writ de venire inspiciendo 
 has been granted against a woman whose husband was alive, but 
 had been near ten years abroad, on the application of a devisee, 
 there being a limitation in the will that if she had a male child 
 within forty weeks after the decease of the testator, with whom she 
 had an illicit connection, it should take previous to the devisee. 
 {& paHe Wallop, 4 Bro. G. G. 90.) But an heir presumptive can- 
 not have the writ in the life-time of his ancestor, because he is not 
 verus haeres — a true heir; and on account of the hardship of 
 
228 ' LAW OF INFANCY. 
 
 separating husband and wife. If, however, the wife marries again 
 soon after the death of her first hushand, and feigns herself with 
 child by him, the heir may have this writ ; for the taking of the 
 second husband being her own act, cannot bar the heir of his rights 
 once vested in him ; and therefore neither she nor her husband can 
 complain of any hardship in the separation. {Oo. lAtt. 8 5. Tursley 
 V. Fitzhard'mge, 6 Ves. B. 260. MoPherson on Ivf. 5.68.) 
 
 § 155. The severity of the proceedings on the writs de ventre 
 mspicien'do, has been greatly relaxed in cases where the widow has 
 married again. Instead of ordering the woman into the custody 
 of the sheriff, to be kept by him till delivered of the child, as the 
 practice is if the party is a widow, the court will permit the wife 
 to remain with her husband, on his entering into a recognizance 
 that she shall not remove from the house they inhabit. That some 
 of the women retained by the sheriff shall see her every day, and 
 that three or more of them shall be present at her delivery, and 
 care haS been taken, in more modem cases, to " accommodate the 
 terms of the order of hiimanity," as far as can prudently be done. 
 ( Vide Theaher's case, Cro. Jac. 685. Ex parte BelUtt, 1 Cox^s E. 
 297, 300. McPherson on Inf. 569.) 
 
 In one case, a widow being admitted to be with chUd, the court 
 fixed on a place agreeable to both parties, where she should be 
 placed and remain until delivered, and where the heir might, from 
 time to time, at proper seasons, and on notice, send women to see 
 her, and to be present when the child was bom. {Ex parte Ais- 
 cough, 2 P. Wms. B. 591.) And, in another case, the order 
 was that the writ should lie in the office for a certain time, and if, 
 within that time, the woman chose to submit to an examination 
 by two midwives, to be named by the petitioner, then the writ not 
 to go till further orders, otherwise the writ to issue. {Ex pwrte 
 Wallop, 3 Bro. C. B. 99.) 
 
 § 156. The common law doctrine of infants in ventre m mere, 
 seems to be recognized, to its fullest extent, in the United States, 
 although, in some instances, the subject is regulated by statute. 
 Thus, in the State of New York, it is provided by statute that 
 where a future estate shall be limited to heirs or issue, or children, 
 posthumous children shall be entitled to take, in the same manner 
 as if. living at the death of their parent. (1 B. iS. part 2, ch. 1, tit. 
 2, § 30. 1 Stat, at Large, 61i.) And, again, that descendants and 
 relatives of an i^itestate, begotten before the death of the intestate, 
 
INFANTS IN VENTRE. 8A MERE. 229 
 
 but bom thereafter, shall, in all cases, inherit in the same manner 
 as if they had been born in the life-time of the intestate, and had 
 survived him. (1 E. S. part 2, ch. 2, Ht. 1, § 18. Stq.t. at Lwrge, 
 705.) By these provisions of the statute, a child in mnt/r& sa mere 
 is considered in esse, for the purposes of property, and it has been 
 held that the period of gestation, or the time for a posthumous 
 child to be born, is not to be taken into the account, under the 
 statute, in determining the rights of the child ; that infants in 
 ventre sa mere are placed on the same footing, with respect to 
 property devised, and to property coming by descent, as other 
 children of the same parent. {Mason, v. Jones, 2 Barb. 8. 0. B. 
 248, 251.) The judge who delivered the opinion of the court, in 
 referring to the statute, said : " Here, then, is a complete annihila- 
 tion, in law, of the time that may elapse between the death of a 
 father and the birth of a previously begotten child. The instant 
 such chUd is bom, it is made to step back to the end of the father's 
 life, there to take its stand and become clothed with all the rights 
 of property previously conferred. The time allowed for an accu- 
 mulation to commence ia. futuro, is the same as is allowed for a 
 future estate in lands to vest in possession ; and when the bene- 
 ficiary, under a trust for such an accumulation, happens to be in 
 vent/re sa m£re, at the death of the father, the same reason exists 
 why the time that may elapse for his birth should be disregarded." 
 (75.252.) 
 
 § 157. At a very early day it was held by the supreme court 
 of the State of New York that when lands were devised to a son 
 for life, remainder to the male children of his son, and the son 
 died leaving a daughter, and his ydie pT^ipement encemfe,' who was 
 delivered of a son, the posthumous son took the estate in remainder, 
 by the devise, in the same manner as if he had been bom in the 
 life-time of his father. {Stedfast v. Nicoll, 3 Johns. Cases, 18.) 
 Judge Eadcliff, in giving his opinion in the casej said : " On prin- 
 ciples of natural justice, no reason can be assigned why an infant 
 in ventre sa mere should not be entitled to the same rights as a 
 child previously bom. The civil law {Just. Ub. 2 tit. 13. Bomat, 
 b. 2, Ut. 1, § 1, pa/r. 6), without discrimination, confers on him every 
 beneficial interest ; and the common law generally regards him 
 with the same indulgence. It entitles him to share under the 
 statute of distributions. He might, at common law, take by 
 descent, to the exclusion of the next heir ; and according to Lord 
 
230 LAW OF INFANCY. 
 
 Coke, the estate was allowed to Test in sush heir until his birth. 
 {Plowd. 375. 3 Co. 61. Eob. 222. Dyer, 106.) In pursuance of 
 the same doctrine, he might be vouched to warranty, and an action 
 for' detainment of chattels might be brought for him as lieir. In 
 a modern case also (5 Terfn B. 59, 60), the marriage of a testator 
 subsequent to his will, and the birth of a posthumous child, was 
 resolved to be a revocation of the will, and such child was allowed 
 to take as heir." {11. 24.) 
 
 It has also been held by the court of chancery in the State of 
 New York, that an unborn child, after conception, is to be consid- 
 ered in esse, for the purpose of enabling it to take an estate, or for 
 any other purpose which is for the benefit of the child if it should 
 afterward be born alive ; or, in the language of one case, " a child 
 in ventre sa mere, at the death of the testator, is considered m 
 esse; and if it should afterward be bom alive, it would be equally 
 entitled with those children who were born in the life-time of the 
 testator." {Jenkins v. Freyer, i Paige's P. 47.) Or, in the lan- 
 guage of another and stiU later case, "an unborn child, after 
 conception, if it is subsequently born alive, and so far advanced 
 toward maturity as to be capable of living, is considered as in esse 
 from the time of conception, when it is for the benefit of the child 
 that it should be so considered." {Howe v. Vam Sohaick, 3 Barb. 
 Ch. P. 488.) 
 
 It seems, however, that 'infants unborn are not seised of real 
 estate, and hence courts cannot sell their interests, because such 
 interests do not exist : they can sell only interests existing. But 
 if a child should be born, it will be vested with the interest in the 
 share substituted for real estate, and held by its co-heirs. {Bowman 
 V. KeJman, 27 How. Pr. P. 212, 213.) 
 
 It seems also that, under the statutes of New York, an actual 
 partition or sale under a judgment in partition, is effectual to bar 
 the future contingent interests of persons not in esse, though no 
 notice is published to bring in unknown parties, and though such 
 future owners may take as purchasers under a deed or will, and not 
 as claimants under any of the parties to the action. And it seems 
 that, independent of the staitute, contingent remaindermen, or 
 persons to take under an executory devise, who may hereafter come 
 into being, are bound by the judgment as being virtually repre- 
 sented by the parties to the action in whom the present estate is 
 vested. {Mead v. Mitchell, 17 N. Y. P. 210.) 
 
INFANTS IN VENTRE SA MERE. 231 
 
 § 158. The question when an unborn child is to he considered as 
 m esse is well settled by the American decisions to be in accord- 
 ance with the civil law upon the same subject. As it respects 
 third persons, or the rights of others claiming through the infant 
 in ventre sa mere, if the child is born dead, or in such an early stage 
 of pregnancy as to be incapable of living, it is to be considered as 
 if it never had been born or conceived. "When the mother dies 
 before the birth of the child, and the latter is delivered by the 
 caesarean operation, it is considered in existence before its birth > 
 for its own benefit to take the estate of the mother by descent, but 
 not for the benefit of the father to enabl? him to hold as tenant by 
 the curtesy. And children born within the first six months after 
 conception are presumed to be incapable of living, and therefore 
 cannot take and transmit property by descent unless they actually 
 survive long enough to rebut that presumption. A party who 
 claims property through the child is bound to •establish the fact 
 that it was bom alive ; and if the child never breathed there is no 
 legal presumption in favor of the fact. {Marsellis v. Thalhimer, 2 
 Paige^s R. 35.) In this regard the courts of this country adopt the 
 rule which prevails in Great Britain. 
 
 In England there are four requisites necessary to make a tenancy 
 by the curtesy : marriage, seisin of the wife, issue, and death of the 
 wife. And in this connection Blackstone says : " The issue must 
 be bom alive. Some have had a notion that it must be heard to 
 cry ; but this is a mistake. Crying indeed is the strongest evidence 
 of its being bom alive, but it is not the only evidence. The issue 
 also must be born during the life of the mother; for if the mother 
 dies in labor and the caesarean operation is performed, the husband 
 in this case shall not be tenant by the curtesy, because at the" 
 instant of the mother's death he was not clearly entitled, as having 
 had no issue bom, but the land descended to the child while he 
 was yet in his mother's womb, and the estate being once so vested 
 shall not afterward be taken from him." (2 Blach. Com. 128.) 
 This is asserted upon the authority of a very early caSe. One 
 Keppes, of Northumberland, took to wife an inheritrix, who was 
 great with child by him, and died in her travail, and the issue 
 was ripped out of her belly alive ; and by reference out of the 
 chancery to the justice they resolved that he should not be tenant . 
 by the curtesy, for it ought to begin by the birth of the issue, and 
 be consummated by the death of the wife," {Payne^s case, 8 
 
232 LAW OF INFANCY. 
 
 Cok^s R. 34.) But as regards the rights of the child personally, 
 it is sufficient that it is bom alive, and so far advanced to maturity 
 as to be capable of living. 
 
 § 159. The rights of a post-testamentary child, or of a child 
 born to a testator after the publication of his -will, depend generally 
 npon statutory provision. Thus, in the State of New York, it is 
 provided that whenever a testator shall have a child bom after the 
 making of his will, either in his life-time or after his death, and 
 shall die, leaving such chUd, so after bom, unprovided for by any 
 settlement, and neither provided for nor in any way mentioned in 
 his will, every sneh child shall succeed to the same portion of the 
 father's real and personal estate as would have descended or been 
 distributed to such child if the father had died intestate, and shall 
 be entitled to recover the same portion from the devisees and lega- 
 tees in proportion to and out of the parts devised and bequeathed 
 to them by such* will. (2 R. S. paH 2, ch. 6, tit. 1, § 49. 2 Stat, 
 at Large, 65.) Under this provision of the statnte, it is held that 
 all the devisees and legatees must contribute ratably, in proportion 
 to the value of the real and personal estate devised or bequeathed 
 to them respectively, to make up the distributive share of the post- 
 testamentary child ; and that in making such contribution, no 
 distinction is to be made between specific, general and residuary 
 legatees; but each legacy is to abate ratably, in proportion to 
 its amount or value. And further, that even a legacy given to the 
 widow of the testator in lieu of dower, must be taken into the 
 account in estimating the amount which the other legatees are 
 bound to contribute to make up the share of a post-testamentary 
 child in the estate of the father. But, as between the widow and 
 such child, the latter cannot taJie a child's portion of the real estate 
 discharged of the widow's right of dower, and also a ratable pro- 
 portion of a legacy given by the testator to the widow in heu of 
 such dower. {Mitchell v. Blair, 5 Paige^s R. 588.) 
 
 § 160. A bastard is a child conceived and bom out of lawful 
 wedlock, or a person bom without lawful parentage. The ques- 
 tion is sometimes settled by express enactment, and the laws of 
 different countries are not uniform on the subject. 
 
 By the English laws, a^bastard is one that is not only begotten, 
 but born out of lawful matrimony. The law is not so strict as to 
 require the child to be in all cases iegotten, but it is an indispensa- 
 ble condition to make it legitimate, that it be lorn after lawful 
 
ILLEQJTIMATE CSTLDREN. 233 
 
 wedlock, {Black. Com. 454, 456.) The civil and canon laws 
 differ from the English law, in that they do not allow a child to 
 remain a bastard, if the parents afterward intermapry {Inst. 1, 10 ; 
 B. Deoot, I. 4 t. 17 o. 1). And this is the rule in France, Holland 
 and Germany. 
 
 By the statutes of New York, a child is deemed a bastard who 
 is begotten and bom out of lawful matrimony ; or while the lm&- 
 band of its mother continued absent out of the state, for one whole 
 year previous to the birth of the child, separate from its mother, 
 and leaving her during that time continuing and residing in the 
 state; or during the separation of its mother from her husband, 
 pursuant to a decree of any court of competent authority. (1 j5, 8. 
 part 1, ch. 20, tit. 6, § 1. 1 Stat, at Large, 595.) 
 
 In some others of the American States, as in Pennsylvania, Yir- 
 giaia and North Carolina, a child born during marriage may be 
 proved to be a bastard — first, by evidence of the husband's inability, ; 
 i second, by proof of the non-access of the husband to his wife ; 
 third, by proof that the child was born out of due time ; or, fourth» 
 by proof that the child was bom during the wife's, open cohabita- 
 tion with another man, and such child was considered illegitimate 
 by the family. {Qowrnioivwealth v. Strieker, 1 Browneh \PaI\ B. 
 app. 47. OommorMJoealth v . Werhtz, \ Ashm. [Pa.] jB. 269. State 
 V. Pettaway, Z Hawks' [N.O.'] B. 623. Bowles y.Bmghain, 2 
 Munf. R. 442. 3 ih. 589.) 
 
 As a general thing, it would seem that the law recognizes a child 
 as legitimate begotten hefore but honxafter marriage, on the ground 
 that a man marrying a woman in an advanced stage of pregnancy 
 thereby admits the child afterward bom to be hjs own, and in 
 some states this is conclusive upon the question of legitimacy, 
 while in others it is not, But in no case is it regarded as conclusive 
 that a child begotten in lawful wedlock is legitimate. The pre- 
 sumption of law is in favor of legitiniacy in such cases, but as a 
 general rule, such presumption may be rebutted by evidence. 
 (Morris v. Dames, 14 Mig. G. L. B. 534. Begvna v. Mamsfield, 41 
 ib. 618. Stegall v. Stegall, 2 Brook. [ U. S.'\ B. 256.) 
 
 In the State of Vermont,, it is provided by statute, that when the 
 parents of an illegitimate child shall intermarry after the birth of 
 such child, it shall, if recognized by the father as his child, be con- 
 sidered legitimate, and be capable of inheriting, {B. /& 1863, ch, 
 56. §5:) 
 
 30 
 
234 LAW OF INFANCY. 
 
 In the State of Indiana, the statute declares that if a man shall 
 marry the mother of an illegitimate child, and acknowledge it as 
 his own, the child shall be deemed legitimate. (1 B. S. 1862, ch 
 46, § 9.) 
 
 And in the State of Pennsylvania, it is provided that in any and 
 every case where the father and mother of an illegitimate child or 
 children shall enter into the bonds of lawful wedlock and cohabit, 
 such child or children shall thereby become legitimate, and enjoy 
 all the rights and privileges, as if they had been born during the 
 wedlock of their parents. {Laws of 1857, p. 607. Loajds of 1858, 
 p. 413. PurdovJs Dig. 699.) It is probable that similar provis- 
 ions are contained in the statutes of other states. 
 
 § 161. The birth of a child after the death of the husband, if 
 within a possible period of gestation commencing from a time 
 anterior to such decease, is held to be legitimate, unless there are 
 circumstances to forbid it ; and this period has been extended in 
 some instances to an extravagant extent. But now, by the common 
 consent of mankind, the time of gestation is considered to be ten 
 lunar months, or forty weeks, equal to nine calendar months and a 
 week. This period has been adopted because general observation 
 has proved its correctness, though it is not denied that diffei'ences 
 of one or two weeks have occurred. Dr. William Hunter, a dis- 
 tinguished Scottish surgeon and accoucheur of the last century, in 
 answer to a question put to him on this subject, replied, that " the 
 usual period is nine calendar months, thirty-nine weeks ; but there 
 is very commonly a difference of one, two or three weeks." (1 
 Beclc's Medical Jurisprudence, 449, 450.) 
 
 It is evident that this period of gestation cannot be accurately 
 settled, so as to establish an arbitrary rule for every individual case, 
 on account of the uncertainty which attaches to the different cir- 
 cumstances, which must be taken into the account in the reckoning 
 of almost every case. The circumstances are : first, certain 
 peculiar sensations experienced by some females at the time of con- 
 ception, or within a few hours or a day, or two or more days, after 
 the fruitful coitus ; second, the cessation of the catamenia ; third, 
 the period of quickening ; fourth, a single coitus. Upon reviewing 
 these circumstances, it is found that a degree of uncertainty 
 attaches to them all. Some females are never conscious of the 
 first circumstance mentioned, and the last is seldom applicable to 
 a married female ; while the period of quickening is sufficiently 
 
ILLEGITIMATE CHILDBEN. 235 
 
 varying to render it perfectly nugatory in the calculation. Tlie 
 cessation of the catamenia, is the point from which most females 
 date the period of conception ; but the great variety that exist as 
 to the return of the period of menstruation ih different females, 
 and other things which may be connected with the matter, render 
 this circumstance very liable to doubt and to mistake. (1 Bedims 
 Medical Jurisprudence, 450, 451.) But as the law must have 
 some criterion by which to judge in these cases, the term of ges- 
 tation is fixed at ten lunar months, or forty weeks. 
 
 To avoid any question which might arise in cases of second mar- 
 riage by the widow soon after the death of the husband, it was a rule 
 of the civil law that she should be prohibited from marrying infra 
 annum luctus, within the year of mourning, which, according to 
 the ancient Eoman calendar, was ten months, and it is said that the 
 same rule was adopted by the Saxons and Danes, except that 
 the year was twelve months ; but no such practice prevails at the 
 present, either in this country or in England. 
 
 § 162. The legal incidents of illegitimacy relate principally to 
 succession or inheritance, and as these have no peculiar connection 
 with the subject of infancy, it is not necessary to pursue the ques- 
 tion here. It may be said in passing, however, that a bastard is 
 held to be rmllvus Jilvus, and independent of express statute pro- 
 vision, he cannot take real or personal estate as the heir of either 
 parent, nor has he even the name of the father or mother, but may 
 assume it or any other name, and is known in law only by his 
 assumed or reputed name. But there are a few features which 
 distinguish the bastard infant from legitimate infants, which it is 
 proper to notice. Thus, the guardian in .socage, in the case of a 
 bastard eigne and mmUerpmsne, may enter in behalf of the rrmUer, 
 and such entry is good to prevent a descent. \Go. Litt. 245 a.) 
 
 Where the law requires the consent of parents or guardians to 
 the marriage of an infant, in the case of an illegitimate infant, he 
 is allowed to nominate a guardian in court, and the court appoints" 
 the nominee ; and the practice of choosing guardians in court is 
 unknown in modem times, except in these cases. {McPherson on 
 Inf. 78.) 
 
 A putative father will not be appointed guardian of his illegiti- 
 mate child, having no property, unless he makes settlement upon 
 him; and he has no absolute right, under any circumstances, to 
 claim the guardianship. {McP. on Inf. 110.) 
 
236 XiAW OF INFANCY. 
 
 Neither father nor mother, nor both, nor any one except a 
 guardian appointed by the court, can consent to the marriage of an 
 illegitimate minor ; and under Lord Hardwicke's act in England, 
 marriages of such persons with the concun-ence of their parents 
 were frequently anuUed on this ground, though now consent is 
 dispensed with by the English statute, where there is no person 
 having authority to give it, and the license for the marriage of the 
 minor may be granted upon oath made that there is no person who 
 can consent. (McP. on Inf. 179.) Illegitimate children are not 
 considered as relations, nor are they favored in law, and as such 
 merely they .never come within the rule which governs in case of 
 heirs. {P&rry v. Whitehead, 6 Ves. B. 547. Lovmdes v. Lovmdes, 
 15 ih. 301.) 
 
 A bastard in ventre sa mere cannot take under a bequest to aU the 
 natural children of a certain specified person, for the reason that a 
 bastard's reputation begins iwith its birth. {Melton v. Dukecf 
 Devonshire, 1 P. Wrris. M. 529.) A bastard, says Lord Coke, can- 
 not take but after he hath gained a name by repiitation ; he can 
 have no remainder limited before he be bom. {Go. Litt.Z,^) 
 But Sir "W. Grant thought that if a legacy was given to a natural 
 child, of which a particular woman was enciente, ^thout reference 
 to any person as the father, there wonld be no uncei'tainty in the 
 bequest, and it would probably be held valid. {EarU v. Wilson, 17 
 Ves. R. 528, 532.) And in a subsequent case," where a testator had 
 given an annuity for the education of the child of which a certain 
 specified female was then pregnant. Lord Eldon decided that the 
 bequest was good ; and that it was possible to hold, consistently 
 with the doctrine of Lord Coke, that if an illegitimate child in 
 ventre sa Tnere was described so as to ascertain the objects 
 intended to be pointed out, it might take under that description. 
 {Gordon v. Gordon, 1 Meriv. B. 141.) 
 
 The rights of an illegitimate child, with respect to inheriting 
 property, and the distribution of his own property, in case of 
 intestacy, are generally declared by statute, and there is but very 
 little that is peculiar to such a child while an infant. Enough, 
 therefore, perhaps, has been said upon this branch of the subject. 
 
eUAROIAKSBIP OF INFANTS. 237 
 
 CHAPTER Xy. 
 
 GUAEDIANSHIP OF INFANTS DIFFERENT KrUDS OF GUAEDIANS ^ — 
 
 GUAEDIANS, HOW CONSTmjTED OK APPOINTED POWERS AND 
 
 DUTIES OF GUARDIANS — REMEDIES AGAINST GUARDIANS JURIS- 
 DICTION OF COURTS OVER GUARDIANS ACCOUNTS BY GUAEDIANS, 
 
 AND THEIR COMPENSATION. 
 
 § 163. A GUARDIAN is a person wlio by law has tlic custody of 
 the person and estate of an infant, and the person who is under 
 the care of a guardian is called a ward. The guardian in this 
 country and in England, performs the oflBce both of the tutor and 
 curator of the Eoman laws, the former of which had the charge 
 of the maintenance and education of the minor, and the latter the 
 care of his fortune. The office was frequently united in the civil 
 law, as it always is in our law with respect to minors. 
 
 The relation of guardian and ward bears a very near resemblance 
 to that of parent and child, the guardian being a temporary parent, 
 continuing the relation during the minority of the child. 
 
 There are two kinds of guardianship ; one by the common law, 
 and the other by statute. (2 Kent^s Com: 218.) 
 
 Gruardianship at common law has fallen into comparative disuse 
 in this country; although many of the principles which entered into 
 that relation, are adopted in guardianship by statute. It is well, 
 therefore, to consider briefly the different kinds of guardians known 
 to the common law, as well as those recognized by statute. There 
 were four kinds of guardians at common law, viz. : guardian in 
 chivalry, guardian in socage, guardian by nature, and guardian by 
 nurture. 
 
 § 164. Guardianship in chivalry arose out of the feudal practice 
 of bestowing land in consideration of military service, and took 
 place only when lands came to an infant by descent, which were 
 held by knight service. It was natural that when military service 
 was suspended on account of the infancy of the tenant, the lord 
 should resume the fee which had originally moved from him- 
 self, until the heir male became capable of wearing heavy armor 
 and doing knight service, or the heir female of having a husband 
 who could perform the service for her. The infant, on the other 
 hand, whose inheritance . the lord enjoyed, had an obvious claim 
 upon him for education and protection, and he was interested in 
 training up his male vassals to arms, and in preventing his feittale 
 
238 LAW OF INFANCY. 
 
 tenants irom marrying his enemies. A system of guardianship 
 based upon these principles, existed among the Iformans, and was 
 introduced into England after the conquest. {Cokeys Copyholder, 
 § 22. MoPherson on Inf. 2.) 
 
 "When, upon the death of one holding by knight's service of a 
 single lord, his or her land descended to an unmarried male heir 
 under the age of twenty-one, the lord was entitled to the custody 
 of the heir's person, and also of the land, until he arrived at 
 the age of twenty-one, when the law supposed him to be fit for the 
 services of chivalry. . 
 
 The guardian might present to churches, bar the marriage of 
 women, and take to his own use all other profits and incidents 
 which belonged to the minor and his estates, but could make no 
 alienation of the inheritance. He was obliged to maintain the 
 infant, and was expected to see that he was " in his young years 
 taught the deeds of chivalry and other virtuous and worthy 
 sciences." Moreover, as he had all the emoluments of the heir, he 
 was to act in all the concerns of the latter, and to prosecute all suits 
 for the recovery of his rights. Finally, it was his duty to restore the 
 inheritance in good condition, and also freed from the debts of the 
 ancestor, in proportion to the duration of the custody and the value 
 of the estate. {McPherson on Inf. 2, 3, and authorities cited.) 
 
 The lord's interest in controlling the marriage of his female wards 
 led to his exacting a price for his consent, and at length it became 
 customary to sell the marriage of wards of both sexes. (2 £laak 
 Com. 70.) 
 
 If the king conferred knighthood upon an infant ward in 
 chivalry, which might be as soon as he was baptized, this amounted 
 to a judgment that he was able to do knight's service, and his 
 body was immediately out of ward, but his land remained in ward 
 till he reached twenty-one. {Sir Drue Drurie's case, 6 Coke's B. 74.) 
 
 When the male heir arrived to the age of twenty-one, or the heir 
 female to that of sixteen, they might sue out their livery or ouster- 
 lemain, that is the delivery of their lands out of their guardian's 
 hands. For this they were obliged to pay a fine, namely, half a 
 year's profits of the land, though Blackstone says this was expressly 
 contrary to magna charta. (2 Black. Com. 68.) 
 
 When the heir thus came of full age, provided he held a knight's 
 fee in capita under the crown, he was to receive the order of 
 knighthood, and might be compelled to take it upon him, or else 
 
GUARDIANSHIP OF INFANTS. 239 
 
 pay a fine to the king.' For in those • heroical times no person was 
 qualified for deeds of arms and chivaby who had not received this 
 order, which was conferred with much preparation and solemnity. 
 (2 Black. Com. 69.) 
 
 Guardianship in chivalry might be forfeited by disparagement, 
 waste, alienation, outlawry or attainder. There were various and 
 peculiar qualities, fruits and. consequences of tenure by knight's 
 service, and many interesting incidents connected with this species of 
 guardianship ; but as the military part of the feudal constitution 
 of England has been done away by statute, and as guardianship in 
 chivalry was never known in the United States, nothing further 
 need be said upon the subject. 
 
 § 165. Guardianship in socage arises only when the infant has 
 land b^ descent, and is very diflferent from guardianship as an 
 incident to knight service. {Quadring v. Downs, 2 Mod. R. 176.) 
 It takes place when socage lands descend to the infant while under 
 fourteen years of age, and ceases when the infant arrives at the 
 age of fourteen years, unless no other guardian is appointed for him. 
 The age of the tenant was originally fixed at fifteen, with reference 
 to Lis fitness for agricultural employment, but fourteen has for many 
 centuries been regarded as his full age. {McPherson on Inf. 19.) 
 The guardian in socage is only appointed in the case of a legal 
 estate, for otherwise difficulty might arise with respect to the obli- 
 gations incident to the tenure. ( Vide SexY. Toddington, 1 Barn- 
 well c& Alderson's B. 560.) 
 
 The guardian in socage is guardian of the person of the ward as 
 well as of his estate, and he cannot assign his guardianship. The 
 guardian must be a person to whom the inheritance by no possi- 
 , bility can descend ; as, when the estate descended from the father, 
 in this case .his uncle by the mother's side cannot possibly inherit 
 the estate, and therefore he would be tile guardian. For the law 
 recognized in such cases judges it improper to trust the person of 
 an infant in his hands, who may by possibility become heir to him, 
 that there may be no temptation, nor even suspicion of temptation, 
 for him to abuse his trust. (1 Black. Com. 461.) 
 
 Lord Chancellor Macclesfield vehemently condemned the rule 
 that the next of kin, to whom the land cannot descend, is to be 
 the guardian in socage, and declared that "it is not grounded 
 upon reason, but prevailed in barbarous times, before the nation 
 was civilized." {Dorm&r's case, 2 P. Wms. B. 262.) 
 
240 ' LAW OF mwANcr. 
 
 If the infant lias lands by descent both ex parte patermt and ex 
 parte materna, then the next of kin on each side will respectively 
 be guardians by socage of these lands ; and of these two claimants, 
 the first occupant will retain the custody of the infant's person. 
 (1 Black. Com. 462j note 6.) 
 
 At the age of fourteen, the ward may oust the guardian and call 
 him to account for the rents and profits of the estate, for at that 
 age 'the law supposes him capable of choosing a guardian for 
 himself. ' 
 
 Marriage, or the valor marUagii, was never in socage tenm-e any 
 perquisite or advantage to the guardian, but rather the reverse. 
 In this, and in many other respects, the socage tenures had much 
 the advantage over the military ones. 
 
 If the guardian in socage dies before the ward has completed his 
 fourteenth year, the wardship does not go to the executors, like 
 wardship in chivalry, because it only exists for the benefit of the 
 heir ; but it devolves upon the next friend to whom the inheritance 
 cannot descend. And the same is the rule when the guardian 
 becomes incapable, {MoPherson on Inf. 25.) The guardian in 
 socage must take possession of the person of the heir, and of the 
 lands and : tenements virhich he had by descent, to keep the rents 
 and profits for the heir until the latter reaches the age of fourteen, 
 to keep his evidence of title safely, and to bring him up well. 
 
 Guardianship in socage is a trust reposed in the next friend by 
 the law, and it has been said that the office cannot be refiised. 
 
 The guardian in socage has an actual estate and interest in the 
 land, though not to his own use. He has a right, therefore, to 
 elect whether he wall let the estate or occupy it for the benefit of 
 the ward ; and unless he lets it, the law which imposes the duty 
 of a guardian upon him, will necessarily protect him in the per- 
 sonal occupation and suj)erintendence of it. The law considers 
 a guardian in socage as entitled to the possession of the ward's' 
 property, and incapable of being removed from it by any person. 
 {MoPherson on Inf. 28.) He may in his own name bring trespass 
 or ejectment, distrain for damage-feasant, or make a lease for years, 
 until the heir attains the age of fourteen ; and he may avow in his 
 own name and right for rent upon a lease. {McP. on Inf. 35.) 
 
 It is laid down that a guardian in socage can make partition, and 
 that this will bind the infant if it be equal ; and, also, that if a 
 tenant in socage mortgages his land, the guardian in socage of the 
 
GUARBIANSSIP OF INMANTS. 241 
 
 heir may tender the mortgage money in the ward's name, even 
 without his consent. He may justify the occupation and govern- 
 ance of the land and likewise of the body, against the heir himself. 
 {;McP. on Inf. 37.) 
 
 The guardian must be charged upon his account as guwrdicm 
 and not as receiver, and is entitled to an allowance of his reason- 
 able costs and expenses in aU things. If he receives the rents and 
 profit of the land, and is robbed of them without his own default 
 or negligence, he will be discharged of them upon his account, and 
 not be required to sustain the loss personally. 
 
 When a woman, guardian in socage, marries, the account lies 
 against her and her husband for the profits taken before the cover- 
 ture, and against the husband alone for those taken during coverture. 
 {McP. on Inf. 39, cmd authorities died.) 
 
 Neither an infant, an idiot, or a deaf-mute, can be guardian in * 
 socage. But if an individual be guardian in socage of an infant 
 under fourteen years, the rule is that he must be guardian in socage 
 of another infant of whom the first infant ought to be guardian. 
 {Oo. Idtt. 88 5.) 
 
 There are many other suggestions which might be made with 
 respect to guardianship in socage, but perhaps enough has been 
 said, from the fact that this species of guardianship has become 
 nearly or quite obsolete in this country, and therefore no particular 
 interest is felt in the subject. This description of guardianship was 
 never very common in the United States, and in those states where 
 it was ever adopted it has now fallen into disuse. It is diflS,cult to 
 conceive how this species of guardianship can exist in this country, 
 for the reason that none can be guardian except the next of kin, 
 who cannot possibly inherit the estate, and such an instance can 
 hardly occur under the laws of inheritance prevailing in the CTnited 
 States. (2 KenCa Com. 223. Yid^ also Combs v. Jaohson, 2 Wend. ■ 
 B. 153.) In some instances, however, the rights, forms and duties 
 of a guardian in socage, are conferred and imposed upon a species 
 of guardian created by statute. ( Vide Fonda v. Yam, Some, 15 
 Wend. E. 631.) 
 
 § 166. Guardianship by nature extends only to the person, and 
 the subject of it only the heir apparent, and not the other chil- 
 dren. Under the old law, a guardian by nature was entitled to 
 the custody of his ward's person, up to the age of twenty-one, and 
 could sell the marriage of his ward for his own benefit ; but he 
 31 
 
242 LAW OF INFANCY. 
 
 could not assign the cvMody and Tnarriage, that is the right of 
 marrying the ward, for this right was inseparable from the person 
 of the guardian ; nor could he, like the lord in chivalry^ compel 
 the ward to marry by exacting penalties for refusal. The wardship, 
 therefore, was not a chattel in the guardian, and it was not forfeited 
 by his outlawry, nor transmissible to his executors. ( Vide JEngle- 
 fieWs case, 1 Coke's JR. 13 5. Calvin's case, Bro. Gourde, 6.) 
 The guardian by nature is the father, and in case of the decease of 
 the father, then the mother, and on her death the next of Mn. 
 (Co. Litt. 88. Jackson v. Comhs, 7 Cow. R. 36. Combs v. Jackr 
 son, 2 Wend. H. 153. Eldridge v. Lvppincott, Cox's \lSf. t/!] R. 
 397. Field v. Law, 2 Root's R. 320. May v. Colder, 2 Mass. R. 
 55. Futo V. Brown, 4 Mass R. 675. Smith v. Williamson, 1 
 Mat;^. (& Johns. [Md.'] R. 147. Corrie's case, 2 Bland's Ch. R. 
 488.) The mother of an illegitimate child is its natural guardian. 
 {People V. Landt, 2 Johns. R. 375. Somerset v. Dighton, 12 Mass. 
 R. 383. Wright v. Wright, 2 %b. 109. Bolton v. SlaU, 6 Black. 
 [/«<?.] R. 357. Fxpa/rte Knee, 4 Bos. <& Put R. 149.) 
 
 Guardianship by nature is quite different from the parental 
 power. The first is instituted in favor of the infant, and is regarded 
 as a burden, while the latter is a right, and is in favor of the father 
 and mother. A guardian by nature has no control over the .real 
 or personal estate of his infant children. {Combs v. Jackson, supra. 
 Hyde v. Stone, 7 Wend. R. 354. • Fonda v. Van Home, 15 i5. 
 631. • Gerret v. Talmadge, 1 Johns. Ch. R. 3. lb. 561. ' Klme v. 
 Beebe, 6 Conn. R. 444. Miles v. Kaigler, 10 Yerg. [Tenn.] R. 
 10.) In a case in the supreme court of the State of New York, it 
 was held, that if a father, during the infancy of his child, selk 
 chattel property belonging to the. child, with the assent of the 
 child, and for the purpose of having it replaced by other property, 
 and the father purchases other property and gives it to the child, 
 but it remains in the possession of the father ; as between the child 
 and the creditors of the father, such substituted property does not 
 become the property of the child, and is the property of the father, 
 and subject to a levy under an execution against him. {Fonda v. 
 Vim Home, supra.) This shows how rigidly the rule is adhered 
 to, that a giiardian by nature has no control over the property, real 
 or personal, of the child. Neither has such guardian any right, as 
 guardian by nature, to receive the rents and profits of the infant's 
 lands. {Jackson v. Combs, srupra. Combs v. Jackson, supra.) Nor 
 
aUARDIANSHIP OF INFANTS. 243 
 
 has he power to lease the lands of the infant, nor to receive a legacy- 
 due him. {May v. Colder, 2 Mass. B. 55. Miles v. Boy den, 3 BicJc. 
 B. 213. Gerret v. Tal/madge, ^wpra. Anderson v. Darby, 1 Nott. 
 & McCord's \_8. G.'\ B. 369. Boss v. Cobb, 9 Yerg. B. 463. 
 Dayley v. Talfemj, 1 P. TFots. ^. 285.) 
 
 The power of the guardian over the person of the child ceases at 
 twenty-one, and in some of the states at eighteen over females; 
 and chancery will deprive him of his authority at any time, if his 
 character render him unsuitable. ( Willesby v. WilUsby, 1 Dow. 
 N. S. 152. 2 BUgh, If. S. 124. WiUesby v. Duke of Beaufort, 2 
 Buss. B. 1, 20, 21.) 
 
 It has been held that fixed habits of intemperance farnish suffi- 
 cient cause for the removal of a guardian by nature. Such a 
 person is himself a proper subject of guardianship, and of course 
 is not fit to have the control of the persons of others. ( Yide Ket- 
 Uetas V. Gardner, 1 Badgers B. 488. Cowles v. Cowles, 3 Gilm. B. 
 435. DeMcmnville v. DeMamnmlle, 10 Ves. Jr. 52. Whitjield v. 
 Sales, 12 ib. 492. Essfwrte Mountford, 15 ib. 445. 2 Story Eg. 
 Jur. § 341. Duhe of Beaufort, v. Berty, 1 P. Wms. B. T03. 
 Shelly V. Westbrooh, JacoVs B. 266. Lyons, v. BUnTcm, B). 24o5. 
 Boach V. Gowan, 1 Dick. B. 88. Lord Shipbrooh v. Lord Hmch- 
 inbrooTc, 2 ib. 547. Crerne v. Sumter, 2 Coi»'« ^. 242. ^aZZ v. Ball, 
 2 Simons' B. 35.) 
 
 In regard to this interference of the court with ordinary rights 
 of parents, as guardians by nature of their children. Judge Story 
 says : " Although in general parents are intrusted with the custody 
 of the persons and the education of their children, yet this is done 
 upon the natural presumption that the children will be properly 
 taken care of, and will be brought up with a due education in 
 literature, and morals, and religion, and that they will be treated 
 with kindness and affection. But whenever this presumption is 
 removed ; whenever (for example) it is found that a father is guilty 
 of gross ill treatment or cruelty toward his infant children, or that 
 he is in constant habits of drunkenness and blasphemy, or low and 
 gross debauchery, or that he possesses atheistical or irreligious prin- 
 ciples, or that his domestic associations are such as tend to the 
 corruption and contamination of his children, or that he otherwise 
 acts in a manner injurious to the morals or interests of his children ; 
 in every such case the court of chancery will interfere and deprive 
 him of the custody of his children, and appoint a suitable person 
 
244 LAW OF INFANCY. 
 
 to act as guardian, and to take care of them, and to euperintend 
 their education." (2 Story Eq. Jv/r. § 1341.) 
 
 Mr. McPherson', in his excellent treatise, gives an account of the 
 ancient technical oflBce of guardian by nature, and states certain 
 reasons for thinking that the office ceased to exist when values of 
 marriage were abolished by the English statute ; and, after refer- 
 ring to numerous cases, says : " It seems plain, therefore, upon the 
 authorities, that the guardianship by nature, of which a descrip- 
 tion has been given, was an office of a technical and arbitrary 
 character, derived entirely from the interest of the ancestor in dis- 
 posing of his heir in marriage, and, as appears from its lasting 
 till twenty-one (when other guardians determined at fourteen), 
 closely connected with tenure by knight's service. It might have 
 been expected that this office would have ceased to exist when all 
 ' values and forfeitures of marriage by reason of any tenure of the 
 kings's majesty, or of any other by knight's service,' were taken 
 away, and when the practice of selling children in marriage fell 
 into general disuse. As to collateral relations, this seems to be 
 admitted ; but a question may, perhaps, be raised in behalf of the 
 father, though it seems difficult to distinguish the cases on prin- 
 ciple." {McPherson on Inf. 58.) 
 
 On the contrary, Mr. Hargrave, an author much quoted, con- 
 siders this guardianship by nature to be still in full force, and 
 strictly confines it to the heir apparent ; and he says that in modern 
 books : " "When guardianship by nature is extended to children in 
 general, or to any besides such as are heirs apparent, it is not con- 
 formable to the legal sense of the term amongst us, but must be 
 understood to have reference to some rule independent of the com- 
 mon law. Thus, when in chancery the father and mother are 
 styled the nattiral guardians of all their children born in marriage, 
 or of any of their illegitimate issue, we shonid suppose those who 
 express themselves so, generally to refer to that sort of guardian- 
 ship which the order and course of nature, so far as we are able 
 to collect it by the light of reason, seem to point out ; and to mean 
 that it is a good rule to regulate the guardianship by, when posi- 
 tive law is silent ; and it is in the discretion of the lord chancellor 
 to settle the guardianship." {Sargrwo^s note 12 to Co. Litt. 
 88 5.) And this species of guardianship is fully recognized as 
 existing at the present day by the American courts ; although, 
 under the operation of our laws making all the children equally 
 
GUARDIAN8BIP OF INFANTS. 245 
 
 heirs, the guardianship by nature would seem to extend to all the 
 children, and not to be confined, as at common law, to the heir 
 apparent or oldest son. ( Willard on JExeoutors, 444.) 
 
 § 167. Guardianship by nurture occurs only when the infant 
 has no other guardian, and belongs exclusively to the parents ; first 
 to the father, and then to the mother. This species of guardian- 
 ship is also confined to the government and education of the infant, 
 and is determined, in both males and females, at the age of four- 
 teen years. {Bing. on Inf. 159.) 
 
 The guardian may deliver the infant to another person for 
 instruction, and may take him back whenever he pleases. If he 
 grants over the custody of the infant, the grant is binding upon the 
 guardian, though the infant may choose whether he will stay with 
 the person to whom he has been granted, or not. If the guardian 
 discharges the infant out of his house, and the latter binds himself 
 apprentice, the guardian cannot retake him. {McP. on Inf. .60.) 
 
 The guardian has nothing to do with the property of the infant. 
 In all deahngs with the infant's property, the guardian for nurture 
 is very much on the same footing as a stranger. {Bac. Abr. Ut. 
 Chuardicm, O. Boss v. Cobb, 9 JTerg. ITerni.} B. 463.) 
 
 If a father, guardian for nurture, occupies the lands of his son, 
 he is regarded as a tenant at will. A guardian by nurture can 
 only make a lease at will of the infant's land. If he makes a lease 
 by indenture to one being in under the title of the infant, render- 
 ing rent to himself, which is paid accordingly, this is not a 
 disseisin to the infant. {McPherson on Inf. Gd.) The subjects 
 of this species of guardianship, at common law, are the younger 
 children, who are not heirs apparent.. It is manifest, therefore, 
 that there can be no room for guardianship by nurture in this 
 country, because, by our laws of inheritance, all the children are 
 heirs ; so it may be said that this species of guardianship here has 
 become obsolete. 
 
 § 168. With respect to the guardianship of the father, it may be 
 safely asserted that there is a right inherent in the parent, recog- 
 nized by positive law, and in no degree de]3endent on the discretion 
 of chancellors or judges, to act as guardian of all his children, not 
 only during the timeiof guardianship for nurture, but till the age 
 of twenty-one. 
 
 In one case, the Lord Chancellor of England said that " the 
 father is entitled to the custody of his own children during their 
 
246 LAW OF INFANCY. 
 
 infancy, not only as guardian by nurture, but by nature." {Ex 
 pa/rte Hopkins, 3 P. Wms. R. 480.) And, in another case. Lord 
 Hardwicke calls the father "the natural guardian of the eons 
 during their minority." {Stilemcm v. Ashdorn, 2 Ath. B. 480.) 
 And, in still another case. Lord Eldon says that " the law makes 
 the- father the guardian of his children by nature and by nurture ;" 
 and, in the same case, Lord Eedesdale said that "the father is 
 intrusted with the care of his children, because it is supposed that 
 he would best execute the trust." ( Wellsley v. The Duke of Beau- 
 fort, 2 Buss. R. 21.) In the case of an infant of the age of 
 eighteen. Lord Eldon says that " a guardian cannot be appointed 
 during the father's life, although, in certain cases, a person may he 
 nominated to act as guardian ; nor does the court of chancery ever 
 take upon it to appoint the father guardian." {Ex parte Mount- 
 fort, 15 Vesey's R. 447.) 
 
 Blackstone says that when "a fatherless child has no other 
 guardian, the court of chancery has a right to appoint one." (3 
 Black. Com. 427.) And, again, he says, that the father, and in some 
 cases the mother, is the guardian by nature of the child, " for if 
 an estate be left to an infant, the father is by common law the 
 guardian, and must account to his child for the profits." {Ih. 461.) 
 He says, again, that " there are also guardians for nurtm-e, which 
 are, of course, the father or mother, till the infant attains the age 
 of fourteen years ; and in default of father or mother, the ordinary 
 usually assigns some discreet person to- take care of the infant's 
 personal estate, and to provide for his maintenance and education." 
 (75.) The intimation, however, that the father, as guardian by 
 nature, has any control by law over the estate of his infant child, 
 must be taken with qualifications. ( Vide ante, § 166.) Blackstone 
 elsewhere says, that the power of a parent over the child is sufli- 
 cient to keep him in order and obedience. "Ho may lawfully 
 correct his child, being under age, in a reasonable manner, for this 
 is for the benefit of his education." (1 Black. Com. 452.) And 
 again, " the legal power of a father — ^for a mother, as such, is 
 entitled to no power, but only to reverence and respect — the power 
 of a father, I say, over the persons of his children ceases at the 
 age of twenty-one, for they are then enfranchised by arriving at 
 years of discretion, or that point which the law has established, as 
 gome must necessarily be established, when the empire of the father 
 or other guardian gives place to the empii-e of reason. Yet, till 
 
GOARJilANSEIP OF INFANTS. 247 
 
 that age arrives, this empire of the father contimies even after his 
 death, for he may by his will appoint a guardian for his children. 
 He may also delegate part of his parental authority, during his 
 life, to the tutor or schoolmaster of his child, who is then in loco 
 parentis, and has such a portion of the power of the parent com- 
 mitted to hiff-charge, viz., that of restraint and correction, as may 
 be necessary to answer the purposes for which he is employed." 
 {Ih. 153.) In regard to this delegated power, however, it should 
 be stated, that it must be temperately exercised, and no school- 
 master should feel himself at liberty to administer chastisement 
 co-extensively with the parent, howsoever the infant delinquent 
 may appear to deserve it. 
 
 Concerning property. Judge Blackstohe says : " A father has no 
 other power over his son's estate than as his trustee or guardian, for 
 though he may receive the profits during the child's minority, yet 
 he must account for them when he comes of age. He may indeed 
 have the benefits of his children's labor while they live with him, 
 and are maintained by him ; but this is no more than he is entitled 
 to from his apprentices or servants." (1 Black. Com. 453.) So 
 much for the different kinds of guardians at common law, some of 
 which have become obsolete, and others have been superseded by 
 guardians created by statute. 
 
 § 169. Guardians by statute are those which are created by 
 statute, or recognized by legislative enactment. There are of this 
 species of guardianship, four kinds : guardians testamentary or by 
 deed, guardians appointed by the courts, guardians ad Utem, and 
 special guardians. These statutory guardians are really at present, 
 the only ones practically known in this country, although they 
 contain many of the principles which determined the rights and 
 duties of guardians at common law ; and in some of the states 
 guardianship in socage is, ia some respects recognized by statute. 
 Thus, in the State of New York, when an estate in land becomes 
 vested in an infant, the guardianship of such infant, with the rights, 
 powers and duties of a guardian in socage, belongs by statute, to 
 the father of the infant ; and if there be no father, to the mother ; 
 and if there be neither father nor mother, then to the nearest and 
 eldest relative of full age, not being under any legal incapacity ; 
 and, as between relations of the same degree of consanguinity, 
 males are preferred. To this guardian, all statutory provisions that 
 are or may be in force relative to guardians in socage, are deemed 
 
' 248 LAW OF INFANCY. 
 
 to apply, thougli the rights and authority of every such guardian 
 are superseded, in all cases where a testamentary or other guardian 
 has been duly appointed. (1 B. 8. pa/rt 2, ch.l, tit. 1, art.l, §§ 
 5-7. 1 Stat, at La/rge, 666, 667.) Except for the provisions of this 
 statute, a father could not be guardian in socage to his child, for 
 the reason that by the laws of descent recognized in the United 
 States, and especially in New York, the inheritance of the child 
 may descend to the father, which by the common law, guardian in 
 socage is forbidden to any one to whom the inheritance may by 
 any possibility descend. ( Vide Fonda v. Van HovTie, 15 Wm'd. 
 M.QZl ; and ante, § 165.) Under the statute, it is held, that when 
 the owner of land dies, leaving a widow and infant heirs, the widow 
 becomes vested with, the powers of a guardian in socage, and as 
 such is authorized and required to take the rents and profits of the 
 land for the benefit of the heirs; and the legal intendment seems to 
 be, that from the time of her husband's death, she occupies the 
 land as guardian in socage. {Byl/oester v. Ralston, 31 Ba/rb. R. 
 286.) Notwithstanding, guardianship at common law has fallen into 
 comparative disuse in this country, many principles pertinent to 
 it are incorporated into guardianships by statute, or those created 
 by judicial or testamentary appointment. 
 
 § 170. A testamentary guardian is one appointed by the last wiU 
 and testament of the father, and, in some states, of the inother, of 
 the child. In regard to this species of guardianship, it is generally 
 understood that it could never exist except it was provided for by 
 statute, although there is some reason to think, that when there 
 was no other guardian marked out by law, testamentary disposi- 
 tions of the guardianship of children were not unknown, even before 
 the enactment .of any statute upon the subject. : Lord Coke, speak- 
 ing of a sort of guardianship, analogous to guardianship in socage, 
 ajid arising where an infant succeeds to inheritances not lying in 
 tenure, says that such guardianship takes place only " if the father 
 hath made no disposition of the custody of the child." {Co. Litt. 
 87 5.) And in another place he speaks of a guardian appointed 
 by the spiritual court, "where a man deviseth goods unto his 
 child, and appointeth him not guardian." {fio. Cop. § 23 ; and vide 
 Anonymous, 3 Saih. B. 176.) On the contrary. Lord Alvemley, 
 in a modern case, said : " The question will in a great measure 
 depend upon the determinations as to wills of land. It is clear 
 by the common law. a man could not by any testamentary disposi- 
 
GUABDIANSmP OF INFANTS. 249 
 
 tion, affect either his land or the guardianship of his children. 
 The latter appears never to have been made the subject of testar 
 mentary disposition till the statute 12 Charles II. It is impossible 
 to contend that it was comprehended under the statute 32 Henry 
 YIII. Till that time, as to land, and as to guardianship, till the later 
 statute of Charles II, the law pointed out the person to succeed ; 
 and it was incompetent to the party, by any testamentary act, to 
 alter the succession of the person to inherit the real estate, or whom 
 the law pointed out as guardian, whether the party died intestate 
 or not." {Ex parte Ilchester, Y Ves. B. 370.) This would seem 
 to be a correct statement of the law, and it is so understood 
 at the present day, both in England and in this country. 
 
 The first statute which authorized the appointment of a guardian 
 by win, was passed about two , centuries ago in England, and the 
 provisions of this statute have been generally adopted in this country, 
 with the exception perhaps of some of the New England Statejs, 
 and the same powers are given to the guardian that he possesses 
 imder the English statute. 
 
 It was provided by the statute referred to, " that where any 
 person hath or shall have any child or children under th^ age of 
 twenty-one years, and not married at the time of his death, it shall 
 and may be lawful to and for the father of such child or children, 
 whether bom at the time of the decease of the father, or at that 
 time in ventre sa iTiere, or whether such father be within the age 
 of twenty-one years, or of full age, by his deed executed in his 
 life-time, or by his last will and testament in writing, in the presence 
 of two or more credible vsdtnesses, to dispose of the custody and 
 tmtion of such child or children, for and during such time as he 
 or they shall respectively remain under the age of twenty-one 
 years, or any lesser time, to any person or persons in possession or 
 remainder, other than Papist recusants ; and such disposition of 
 the custody of such child or children, shall be good and effectual 
 against all and every person or persons claiming the custody or 
 tuition of such child or children as guardian in socage or other- 
 wise. And such person or persons to whom the custody of such 
 child, or children hath been or shall be so disposed or devised j shall 
 and may take into his or their custody, to the use of such child or 
 children, and also the custody, tuition and management of the 
 goods, chattels, and personal estate of such child or children, till 
 their respective age of one and twenty years, or any lesser time, 
 32 
 
250 LAW OF INFANCY. 
 
 according to such disposition as aforesaid; and may bring such 
 action or actions in relation thereto, as by law a guardian in com- 
 mon socage might do." (12 Car. 2, ch. 24.) 
 
 The statute laws of this country, which have adopted or followed 
 the provisions of the English statute, have generally abridged its 
 explanatory and verbose phraseology, but it is not presumed that 
 the several legislatures intended to vary the construction of it. 
 ( Vide 2 Kent's Com. 225. 
 
 It will be observed that by the English statute the right to 
 appoint a testamentary guardian is given absolutely to the father, 
 but by the statutes of several of the American States, such ri^t 
 cannot be exercised except the mother, if living, assent thereto. 
 Thus, in the State of New York, it is expressly provided, that " no 
 man shall bind his child to apprenticeship or service, or part with 
 the control of such child, or create any testamentary guardian 
 therefor, unless the mother, if living, shall in writing signify her 
 assent thereto." {Laws of 1862, ch. 172, § 6.) Guardianship by 
 will or deed supersedes all the other guardianships heretofore 
 mentioned. 
 
 § 17^ The powers of a testamentary guardian depend entirely 
 upon the particular terms of the wiU from which he derives his 
 authority. Under the English statute, it has been decided that if 
 a father devise his land to a person during the minority of his sou 
 and heir, in trust for his heir, and for his maintenance and educa- 
 tion until he comes of age, the custody of the child is not devised 
 within the statute. {Bedell v. Constable, Yaugh. R. 177, 184.) 
 And, further, if a man devise the custody of his heir apparent to 
 another, and mentions no time, either " during his minority " or 
 for any other time, that this is a good devise of the custody within 
 the act, if the heir be under fourteen at the death of the father, 
 because by the devise the inodus hahendi custodiam is changed 
 only as to the person, and left the same as it was as to time ; but 
 if the heir be above fourteen at the father's death, then the devise 
 of the custody is merely void for the uncertainty ; for the act did 
 intend that every heir should be in custody till one and twenty ; 
 own ut tamden, sed ne dintius / therefore he shall be in this cus- 
 tody but so long as the father appoints, and if he appoint no time, 
 there is no custody. (/5.) 
 
 Ordinarily, the guardianship continues until the ward is of full 
 age. In case of a female, the English authorities do not agree 
 
GUARDIANSBIP OF INFANTS. 251 
 
 ■whether the marriage of the testamentary -ward will determine the 
 guardianship before she acquires her full age or not. The better 
 opinion, however, seems to be, that if the will is explicit as to the 
 duration of the trust, the guardianship will not be terminated by 
 the marriage of the female before she is of age, against the pro- 
 Tisions of the will. The English statute substantially declares that 
 the guardianship shall continue till twenty-one, if so prescribed 
 by the father, and it was held in one case that the guardian- 
 ship would not be determined sooner, even by the marriage of the 
 infant. {Mendes v. Mendes, 3 Atk. B. 625.) Lord Hardwicke 
 held, in a case before him, that the marriage of a daughter deter- 
 mined the testamentary guardianship. {Mendes v. Mendes, 1 Ves. 
 Sen. H. 89.) But in a subsequent case, the same lord high chan- 
 cellor intimated that the marriage would not, of itself, determine a 
 guardianship, though the court would never appoint a guardian to 
 a married female infant. {Roach v. Oowcm, 1 Ves. Sen. R. 160.) 
 It woidd seem now, however, in England, to be quite of course to 
 appoint a new guardian for the female ward on her marriage. 
 {Anonymous, 8 Siw,. R. 346.) 
 
 The question does not seem to be very well settled in the United 
 States. In one case in the late court of chancery in the State of 
 !New York, the chancellor, upon the authority of Lord Shaft^urifs 
 case, referred to by Lord Hardwicke in Mendes v. Mendes, stated 
 that the marriage of a daughter determined the guardianship, but 
 held that a ward of court was not discharged upon her marriage 
 without a special order. {Matter of Whittaker, i Johns, Ch. R. 
 378, 380.) Mr. MePherson, upon the same authority of Lord 
 Hardwicke, lays it down that testamentary guardianship is not 
 determined by the marriage of a male ward, but the guardianship 
 of females is determined by their marriage, and says : " This, 
 indeed, is a necessary consequence of the rights which a husband 
 acquires by marriage, with regard to his wife's person and property." 
 {McPlberson on Inf. 90.) Judge Daly, of the New York common 
 pleas, sitting as surrogate for the city and county of !N"ew York, 
 referring to the rule laid down by MePherson upon the subject, 
 said, " as the reason he assigns is a satisfactory one, I shall treat 
 the rule as established." {Matter of Bridles estate, 15 Alh. Pr. 
 R. 12, 14.). And it was held in the State of Tennessee that the 
 guardianship' of a female ward ceases upon her marriage under age. 
 {Jones V. Ward, 10 Yerg., R. 160.") 
 
252 LAW OP INFANCY. 
 
 Sometimes, by the statute itself, the power to appoint a testa- 
 mentary guardian is limited to unmarried infants, as in 'New York, 
 the father, whether of full age or a minor, of a child likely to be 
 born, or of any living child under the age of twenty-one years, and 
 unmarried, may, by his deed. or last will, duly executed, dispose of 
 the custody and tuition of such child, during its minority, or for 
 any less time, to any person or persons in possession or remainder. 
 (2 B. S. part 2, ch. 8, tit. 3, § 1. 2 Stat, at Large, 156.) This 
 would not necessarily imply that the marriage of the infant, after 
 the guardianship actually commenced, would terminate it, and by 
 this statute there is no distinction made between males and females. 
 The statutes of England, and of mo&t of the American States, pro- 
 vide that the guardian may be appointed by deed as well as by will^ 
 but it is quite evident that the deed referred to is only a testa- 
 mentary instrument in the form of a deed, to operate only in the 
 event of the father's death. This construction was put upon the 
 English statute by Lord Chancellor Eldon, and from the reason of 
 the thing, it must be correct. • {Ex pa/rte TlcJiester, 1 Yes. R. 367.) 
 Such a deed certainly resembles a will in some respects, in that it 
 has no operation during life^ and it has been held to be revocable 
 at pleasure. {Shaftsbv/fy v. Harmam, FincKs B,. 323.) If the 
 appoiatment is by will, the instrument need not be proved. So it 
 is asserted by Chancellor Kent, although he does not refer to 
 authorities to sustain the position. (2 Ken^s Com.' ^'il?)!) The 
 instrument, however, must be a written will. {Dorsey v. Sheppwrd, 
 12 Gill (& Johns. [Md.} B. 192.) Unless the guardian is restricted 
 by the will or deed, he takes the custody and management of the 
 personal estate of his ward, and the profits of his real estate ; and 
 has power to collect and receive moneys due to the minor,, whether 
 received by mortgage or otherwise, and to execute discharges and 
 receipts therefor. {Chapman v. TibUtts, 33 W. Y. B. 289, 290.) 
 This power extends not only to the lands descended or left by the 
 father, but to all the lands and goods any way purchased or acquired 
 by the infant ; although a lease made by a testamentary guardian, 
 to last beyond the minority of the ward, is not valid after the ward 
 attains twenty-one, and is at that time not merely voidable,- but 
 absolutely void. {McPherson on Inf. 92, referring to Parry v. 
 Hodgson, 2 Wils. B. 135.) The testamentary guardian cannot assign- 
 or transfer his trust over to another, neither will his guardianship, 
 upon his death, go to his executors or administrators ; for though it 
 
GUAEOIANSHIP OF INJS'ANTS. 253 
 
 be an interest, yet it is an interest joiaed with a trust, whicli the 
 testator might have thought the assignee jinfit for. But if two 
 or more are appointed testamentary guardians, and one of them 
 dies, the survivor or survivors will continue guardians, for from 
 the nature of the appointment, the authority must be joint or 
 several. {Mdlish v. DaOosta, 2 Aikyn's H. 15. YomgharHs R. 
 181. Eyre v. Countess qf 8haftshv/ry^ 2 Peefi^e Williams^ JEi. 
 102.) And it seems that in case two or more are appointed, 
 either may qualify without the other, and without presuming to 
 accept or renounce the guardianship. {Kevan v. Waller, 11 LeUgKs 
 [Fa.} ^.414.) 
 
 If the person appointed guardian pursuant to the statute die, or 
 refuse to take upon himself the guardianship, a guardian may be 
 appointed by the com-t. So, if the person appointed become 
 lunatic or is oth^wise incapacitated to execute the trust reposed 
 in him, or if he abuses the trust, the court may either totally 
 remove him or appoint another, or, by obliging him to give security 
 to make good his deficiencies, hinder him from doing any thing 
 prejudicial to the infant. If he does not act at all, a guardian may 
 be appointed on petition, but if, after acting, he misconducts himself, 
 it is said that a bill must be filed. {Ex jparte Salter, 8 £r. Ch. 
 Oases, 500. G'Keefe v. Casey, 1 Sch. dt Lefray's H. 106. Boach 
 V. Gowan, 1 Yes. Sen. M. 160.) 'But though the court may inter- 
 pose or remove a common law guardian, it has been said that there 
 are no instances of a testamentary guardian being wholly removed. 
 {Bridget HiWs case, 3 Salh. B. 1T8.) 
 
 A testamentary guardian cannot be appointed for a natural 
 child, except the statute of the state expressly authorize the 
 appointment. The court, however, will adopt the nomination of 
 the father, unless some objection be shown to the person nomi- 
 nated. {Rex V. Comforth,2Str. R. 1162. Ward v. St. Paml, 2 
 Br. Ch. R. 583. Feckham v. Peckham, 2 Cox^s R. 46. Barry v. 
 Barry, 1 Molloy's B. 210.) 
 
 A grandfather cannot appoint a testamentary guardian for. his 
 grandson, {Fullerton v. Jackson, 5 Johns. Ch. B. 278. Hoyt v. 
 Hilton, 2 Edw. Ch. R. 202.) Yet if the grandfather leave an 
 estate to the grandson upon that condition, and the father submit 
 to it, the guardian may qualify and act. If, on the contrary, the 
 father do not submit to the guardianship, the estate will be for- 
 feited. {Blake v. Leigh, Amhl. R. 306.) 
 
254 LAW OF INFANCY. 
 
 E'o form of words is usually prescribed by the statute for the 
 appointment of a testamentary guardian, and hence, it is immate- 
 rial by what words the appointment is made, provided the father's 
 intent is suflSciently apparent. But no proof aUunde the will 
 should be admitted, as by offering parol evidence of testator's inten- 
 tion. {Sterhie v. Sterhie, 3 P.Wms. B. 51.) Of course there is 
 no objection to the appointment by the father of one guardian for 
 the person of his child, and of another for his estate, unless some 
 statute contravene. 
 
 § 171. When no testamentary guardian has been appointed for 
 an infant, and it becomes necessary that the child have one, a 
 general guardian may be appointed by a court of equity, probate 
 court or other court of similar character, having jurisdiction of 
 testamentary matters ; and this species of guardian is more com- 
 mon than any other kind. Courts of equity hajpe long exercised 
 jurisdiction for the appointment of guardians in such cases, and 
 the origin and nature of this jurisdiction has been much discussed. 
 Mr. Hargrave, in his notes to Coke's Littleton, says that it is not 
 easy to determine when this jurisdiction was acquired, but asserts 
 that such jurisdiction is not of an ancient date, and thinks that 
 in the first place it was a usurpation, though he does not con- 
 trovert the legaKty of the jurisdiction thus exercised at the time 
 of his writing. ( Vide Ha/rg. notes 16 to Co. Litt. 886.) 
 
 On the other hand, Mr. Eonblanque, a writer of equal profes- 
 sional claims, undertakes, in a reply to Mr. Hargrave's argument, 
 to prove that the general superintendence of infants originally 
 belonged to the crown; and he then concludes, a ratione, that 
 this superintendence, as exercised in the coui't of chancery, is a 
 branch of its general jurisdiction. ( Vide 2 FonJ). Tr. Ec[. 228, 
 n. ^th ed.) The arguments of these learned commentators upon 
 the subject, are interesting and instructive, and are well worth a 
 perusal. Lord Eldon says that Mr. Fonblanque has stated the 
 principle very correctly. {De Mimneville v. De ManneviUe, 10 
 Ves. li. 52.) And he concurs with Lords Hardwicke and Thur- 
 low, in the opinion, that the state must of necessity place some- 
 wliere a s^^perintending power over those who cannot take care of 
 themselves, and that the court represents the king aa parens patrae. 
 ( Vide Cutler v. Fv/rman, Ambl. 301. Powell v. Clemer, 2 Bra. 
 Ch. Gas. 449.) Again Lord Eldon says that the court has not the 
 means of acting, except when it has property to act upon ; because 
 
GUABDIANSBIP OF INFANTS. 255 
 
 it cannot take on itself the maintenance of all the children in the 
 kingdom. It is not, however, from any want of jurisdiction that 
 it does not act ; but from a want of means to exercise its jurisdic- 
 tion, by applying property for the use and maintenance of the 
 infants. ( WellesUy v. WeUesley, 2 Huss. R. 21.) Lord Eedesdale 
 considered it to be a constitutional principle, that all powers in the 
 administration of justice which are necessary in themselves, are 
 vested in the crown; and he asserts that the justices of "Wales 
 exercised jurisdiction in case of infants, ia their courts of chancery, 
 under a statute of Henry VIII, and that the chancellor of Durham 
 had done the same, without any record of the origin of his authority, 
 but without question. ( WeUesley v. Duke of Beaufort, 2 BligKs If. 
 8. H. 124.) Bat it is not necessary to continue this discussion fur- 
 ther. Suffice it to say, that the jurisdiction of a court of equity in 
 such cases, has been long and unquestionably settled ; and chancery 
 guardians, or those appointed by courts of a similar character, have 
 now essentially superseded all others. The practice was unknown 
 to the common law, and at the present day the whole matter is 
 regulated or recognized by statute. 
 
 In the State of New York, the power of appointing general 
 guardians is lodged in the supreme court, and in the surrogates of 
 the several counties. In Yermont, Massachusetts, Connecticut, 
 and several other of the United States, the power is vested in the 
 probate court. In New Jersey, the guardian may be appointed by 
 the ordinary or orphan's court, or the surrogate, as the case may be ; 
 in Pennsylvania, by the orphan's court. {Cornwell v. Cornwell, 11 
 Serg. & BawWs B. 374.) And in Ohio by the probate court. In 
 aU of the states, the court having chancery powers, has a general 
 jurisdiction over every guardian of an infant, and he is subject to 
 the superintendence and control of such court. (2 Kent^s Com. 
 22T.) 
 
 § 172. In the State of Kentucky, it has been held that the 
 county com't has no jurisdiction to appoint a guardian for an 
 infant while the father is living. {Posten v. Yoimg, 7 J. J. 
 Marsh. JR. 501.) A similar rule has been declared in the State of 
 Maryland. {Corrie^s case, 2 Bland^s B. 488.) A contrary doc- 
 trine has been held in Alabama. {Sme v. JVwson, 6 Port. M. 77.) 
 
 In the State of New York, it is understood that the supreme 
 court, by virtue of its jurisdiction as a court of equity over persons 
 laboring imder disability, can take the custody of an infant from 
 
256 LAW OF INFANCY. 
 
 the control of its father and give it to the mother ; and that, on the 
 Bame principle, the court cannot appoint a guardian for an infant 
 during the life-time of the father or mother, and without their 
 consent. ( Willa/rd on JExeoutors, 446.) It would seem, however, 
 that the surrogatje has no power to appoint a guardian for an infant 
 whose father is living.. {Foster v. Mott, 3 Bradf. B. 41'2,.) But 
 in one case in the supreme court, however, a contrary doctrine was 
 held, and the learned jtidge, in giving the opinion, said : " It is 
 unusual for the surrogate to appoint a general guardian for an 
 infant having a father, yet it may be, and sometimes is done ; and 
 then the guardian succeeds to the rights and duties of the father, 
 subject to the authority and discretion of a court of equity." 
 {Ola/rh V. Montgomery, 23 B<wl. B. 464, 472.) To this. Judge 
 Willard remarks : " It was not the direct point in the case, nor 
 does it appear to have been discussed by counsel, or to have been 
 passed upon by the associates of the learned judge, l&o case is 
 referred to as authority. Though the doctrine is entitled to great 
 respect from its source, it is believed to be incorrect. It is not 
 denied that the supreme court, succeeding to the authority of the 
 late court of chancery, has the power to take the guardianship of 
 infants from the parents, against their consent. But the surrogate 
 has not yet been clothed with that jurisdiction; which he must 
 have, if he can allow an infant of fourteen to ignore the control of 
 his father, or appoint a guardian for one still younger, against the 
 remonstrances of a living father. ( Willa/rd on Executors, 447, wofo.) 
 
 It seems that a general guardian cannot be appointed when- 
 there is a testamentary guardian living who has neither resigned 
 nor been removed. {Bdbmson v. ZoWmger, 9 Watffs [/*a.] B. 169.) 
 
 In the State of New York, the power of the surrogate to appoint 
 a general guardian is limited to the case of a minor for whom no 
 guardian shall have been appointed by the father by deed or will. 
 (2 R. S. pa/rt 2, ch. 8, Ut. 3, §§ 4, 5. 2 Stat, at Large, 157.) 
 
 A guardian cannot be appointed for an infant for whom a former 
 guardian has been appointed by the court, and such former guard- 
 ianship has not been removed or revoked. {Bledsoe v. Britt, 6 
 Terg. [Term.] B. 458.) And in Kentucky, an order of the county, 
 court superseding a guardian may be revised in the coml; of 
 appeals. {Isaacs v. Taylor, 3 Dana's B. 600.) And it has also 
 been held by the same court that an order superseding a guardian, 
 on the ground that the ward is fourteen years old, is not valid, 
 
6UARDIANSB1P OF INFANTS. 257 
 
 Without notice to the guardian. {Montgomery v. Smith, 3 Demo's 
 B. 599.) 
 
 An executor has no claim to the guardianship of the testator's 
 child, nor the husband of an executrix ; and the appointment of 
 the administrator as guardian is never encouraged. {Massingale 
 V. Tate, 4 Sayw. \Tefiin.\ B. 30. Ex parte Crutohfield, 3 Yerg. 
 [Tenn.'] JR. 336. Isaacs v. Taylor, 3 Dana's B. 600.) 
 
 In New Hampshire, where the guardian is appointed hy the 
 court of probate, for each county, it is necessary that the minor 
 reside in the county where the appointment is made. {Jhdge qf 
 Probate v. Hinds, ^N. H. B. 464:.) The letters of guardianship, 
 however, are always prima facie evidence of a legal and regular 
 appointment. {Presoott v. Gass, 9 N. M. B. 93.) 
 
 In Indiana, the probate court cannot remove a guardian except 
 for breach of trust or insufficiency of security. {Pickens v. Clay 
 ton, Y Blachf. B. 321.) 
 
 "Where guardians are appointed by the court, the . office deter- 
 mines by the death of one of them, and does not, like testamentary 
 guardianship, survive to the others, but the survivors will usually 
 be re-appointed — so held in England. {Bradshaio v. Bradshaw, 1 
 Buss. B. 528. Hall v. Jones, 2 Sim. i?. 41.) The rule, however, 
 is different in this country. Here guardianship is regarded as 
 a trust coupled with an interest, and when two guardians are 
 appointed and one of them dies, it continues to the survivor. 
 {People V. Byron, 3 Johns. Cases, 53.) 
 
 On the marriage of a mother or other female who has been 
 appointed guardian to an infant, it is a matter of com'se to appoint 
 a new guardian, for she is no longer sv/i jwris, and has become 
 liable to be controlled by her husband ; bub she is at liberty to go 
 before the court to propose herself as guardian. {Anonymous^ 8 
 Sim. B. 346. Lee v. Gowalt, 1 Bra. B. 347.) 
 
 It would seem to follow from these principles, that the marriage 
 of a female who is one of several guardians, will put an end to the 
 whole guardianship. The court may, ia its discretion, appoint one 
 person guardian of the person, and another guardian of the estate 
 of the infant. (2 Kenfs Com. 227. WUla/rd on Executors, 448.) 
 The rule, however, is different in New Jersey. In that state, the 
 guardianship of the person of the minor cannot be committed to 
 one person, and that of his property to another. {Tmbrooh v. 
 McColm, 7 Halst. B. 97.) 
 
258 LAW OF INFANCY. 
 
 Such, are some of the principles relating to the appointment of a 
 general guardian by the courts, which, of course, may not apply 
 to every case, for the reason that in some of the states statutes 
 may possibly exist to the contrary. 
 
 § 173. The general guardian is usually appointed upon the 
 application of the infant himself, if above the age of fourteen 
 years ; and under that age, upon the application of some near rela- 
 tion or friend of the child. In most or all of the American States, 
 by statutory provision, the infant may choose a guardian at the 
 age of fourteen, subject, however, to the approval of the probate 
 court, or some other court of a similar character. ( Vide ante, § 
 92.) Courts are not, of course, bound to confirm the choice of a 
 guardian made by the infant ; they may exercise a sound discretion 
 upon the subject, and it is their duty to do so. ( Wynne v. Ahoays, 
 1 Ifrnphy's [W. C] B. 38. Orcmt v. Whitaher, II. 231.) 
 
 The appointment of a guardian by the suiTogate in ]Srew York, 
 for an infant under fourteen, terminates at that age, if the infant, 
 on becoming fourteen, sees fit to nominate a different person ; and 
 his choice is allowed by the surrogate. Again, the surrogate can- 
 not appoint a guardian for an infant over fourteen years of age, 
 against the consent of the infant. The supreme court succeeding 
 to the jurisdiction of the late court of chancery, is not, thus 
 restricted. That court can appoint a guardian contrary to the 
 nomination of the infant. ( Willa/rd on Ex. 447.) So a guardian 
 appointed by the court of chancery, or other court possessing full 
 chancery jurisdiction, continues such guardian until the infant is 
 twenty-one years of age, unless sooner removed by the court 
 appointing him; and the infant, upon arriving, at the age of four- 
 teen, cannot have a new guardian appointed as of course. ^Matter 
 of Dyer,. 5 Pmge's B. 534. Matter of Mcol, 1 Johns. Gh. B. 25.) 
 
 Usually some near relative of the infant possessing the requisite 
 qualifications, will be selected as the guardian for the infant, and 
 in making the selection it is the duty of the court to consult, the 
 best interests of the infant, taking into consideration not merely 
 his temporary welfare, but the state of his affectiohs, attachments, 
 his training, education and morals. {Foster v. Mott, 3 Brad. [iT. 
 T. Sur.'] R. 409. Bemiett v. Byrne, 2 Barl. Gh. R. 216.) 
 
 The declared wishes of a deceased parent are entitled to much 
 weight in the selection of a guardian of an infant, and the wish of 
 a dying parent should have a preponderating influence in the selec- 
 
GUARDIANSBIP OF INFANTS. 259 
 
 tion, other things being equal. ( UnderhiU v. Dermis, 9 Podge's 
 E. 202. Bennett v. Byrne, 2 Ba/rl. Ch. B. 216.) So, other things 
 being equal, an uncle of the infant will be preferred to a stranger. 
 {Morehouse v. Ooohe, Hop. Ch. B. 226.) 
 
 The fact that the estate came from the father is no ground for a 
 preference of the father's relation in the appointment of the 
 guardian ; and it seems that a surrogate may appoint one of his 
 own relatives such guardian. ( Urtderhill v. Dennis, supra.) That 
 the person applying to be appointed guardian is a trustee to apply 
 the income of an estate to the support and education of the infant, 
 is a circumstance in his favor. {Bennett v. Byrne, supra.) Other 
 things being equal, the mother of a female child, whose father is 
 dead, is the most proper person to be intrusted with her nurture, 
 care and custody, and should therefore be appointed her guardian. 
 {The People v. Wilcox, 22 B<wi. B. 178.) 
 
 It is requisite that the person appointed be sui juris — "of his 
 own right," and capable of performing the appointment. He 
 must not have any interest adverse to the interest of his ward, and 
 if he is known to have any such, he will not be appointed. A 
 person under his full age, or a minor, cannot of course be appointed 
 to take care of another minor ; and one under the power of another, 
 although possessing understanding as a married woman, is not 
 qualified for the trust. (1 Bouvier's Institute, 42.) 
 
 An executor of an estate will not be appointed the guardian of 
 an infant who claims the estate, because there may have been 
 difierent interests, and the law does not put the duties of a man in 
 opposition to his interest. {Jackson v. Sears, 10 Johns. [If. Z".] 
 B. 435. And vide Parlcer v. lAncdbn, 12 Mass. B. 16.) 
 
 The appointment of a guardian, made by the court, is deemed 
 to be valid until it is reversed or set aside; and it cannot be 
 assailed in a collateral way, or by proceedings upon habeas corpus. 
 {The People v. Wilcox, supra.) 
 
 § 174. The modus operandi for procuring the appointment of a 
 general guardian, is prescribed by statute and the practice of the 
 several courts having jurisdiction ; but this subject does not come 
 within the plan of this work, and it is therefore omitted. It only 
 remains here to state some general principles in regard to the 
 powers, duties and accoxmtability of the general guardian. 
 
 The guardian is the proper judge as to the school or university 
 at which his ward shall be educated ; and the court will compel the 
 
260 LAW OF INFANCt. 
 
 obedience of the ward to the selection, nnless some reasonable 
 objection is shown. {TremcMs case, Strangle B. 168. And vide 
 Eall V. Hall, 3 Aflc. R. 721.) But if there are two or more 
 guardians appointed for the ward, and they disagree as to the 
 mode of education, the court will exercise its own discretion on 
 the subject, and will not regard itself bound by the wishes of the 
 majority upon the subject. {Hall v. Hall, sujpra) 
 
 The powers and duties of guardians are frequently, and perhaps 
 generally, declared by express provision of statute. For example, in 
 the State of JSTew York, it is provided that every general guardian, 
 whether testamentary or appointed, shall safely keep the things 
 that he may have in his custody belonging to his ward, and the 
 inheritance of his ward, and shall not make or suflfer a,ny waste, 
 sale or destruction of such things or. of such inheritance, but shall 
 keep ,up and sustain the house, gardens and other appurtenances 
 to the land of his ward, by and with the issues and profits thereof, 
 or with such other moneys belonging to his ward, as shall be in his 
 hands ; and shall deliver the same to his ward when he comes to 
 his full age, in as good order and condition, at least, as such 
 guardian received the same, inevitable decay and injury only 
 excepted ; and he shall answer to his ward for the issues and profits 
 of real estate received by him, by a lawful account. And if the 
 guardian make or suffer any waste, sale or destruction of the inheri- 
 tance of his ward, he will lose the custody of the same, and of his 
 ward, and will forfeit to the ward thrice the sum at which the 
 damages may be taxed by a jury. (2 JR. 8. part 2, ch. 8, tit. 3, §§ 
 20, 21. 2 Stat, at La/rge, 159, 160.) Here it will be observed that 
 the law is very particular and jealous with respect to the rights and 
 property of infants, and the courts are equally scrupulous and 
 guarded. 
 
 The administration of the guardian extends over the person and 
 property of the ward ; and as a general principle, it may be said 
 that the guardian stands to the ward in loco parentis. This, of 
 course, is to be understood in a qualified sense, for the guardian 
 does not enjoy all the rights and possess the full powers of the 
 parent. ( Vide Bass v. Cooh, 4 Portm's [Ala.'\ B. 390.) 
 
 According to Judge Bouvier, the guardian is bound to take care 
 of the person of the ward; to exercise, when needful, proper power 
 of restraint; to place his ward apprentice, or in some situation 
 to earn his own living ; and to represent him in all civil acts and 
 
OTfABDIANSHIP OF INFANTS. 261 
 
 in actions. (1 Bouv. Inst. 142.y The care of tlie person includes 
 the obligation to provide for the support and education of the 
 ward, and he must use a sound discretion in these respects ; but in 
 cases of doubt or difficulty he may apply to the proper court for 
 directions. (75. 143, <md Sams v. Jiiohardson, 4 Dev. [Jf. C] 
 B. 279. Byiec V; Thorp, 4 B. Mm. [Ky.] B. 313.) 
 
 The guardian may properly restrain his ward from acts which 
 are illegal or improper, and he is authorized, in case of necessity, to 
 place him out apprentice, though it is said that in an act like this, 
 he should take the precaution of consulting the mother, if living, 
 or if not, some other relations of the ward. The business, however, 
 to which the minor is bound, must be a proper one, and it hasl)een 
 held that the guardian cannot bind his ward as a servant, unless 
 by authority of some statute. (1 Bov/v. Inst. 143. Wood v. 
 Gale, 10 J^.E. B. 247. BespuUioa v. Kepple, 1 TeaUs' \Pa.] B. 
 233.) 
 
 § 175. The guardian may lawfully hold possession of his ward's 
 land during the minority of the ward, and may lease such land 
 during guardianship, but no longer. {Bacon v. Taylor, Ki/rby-s 
 iCorm.'] B. 368. Boss v. Gill, 4 Call's [Va.] B. 250. Truss y. 
 Old, 6 Band. [ Va.] E. 256. Magruder v. Beter, 4 Gill (& Johns 
 iMd.'\ B. -323. Genet v. Tallmadge, 1 Johns. Oh. B. 561. SnooTi 
 V. Sutton, 5 Ealst. [if. J.'\ B. 133. Jones v. Ward, 10 Yerg. 
 ITenn.] B. 160. Johnson v. Oarter, 16 Mass. B. 443. Waikms 
 V, Peck, 13 H. H. B. 361.) The guardian being in possession of 
 his ward's land by rightj may maintain an action of trespass or 
 ejectment against any person entering upon them without right. 
 {Holmes v. Seeley, 17 Wend. B. 75, 78, and cases cited.) 
 
 The guardian has no right to sell and convey the real estate of 
 his ward absolutely without the special authority of the court, 
 because the nature of the trust does not require it. {Field v. 
 Schieffelvn, 7 Johns. Oh. B. l50, 154.) 
 
 The guardian must necessarily have more unlimited control over 
 the personal estate of his ward than over the real estate of such 
 ward. The personal estate of the ward may, therefore, be invested, 
 called in, and reinvested, and changed and otherwise disposed of, 
 as the exigency of the trust, in the judgment of the guardian, may 
 seem to require. In every instance, however, the guardian acts ' 
 under responsibility to his ward for the faithful and judicious dis- 
 charge of his trust. {Field v. Sehieffelm, supra.) 
 
263 ZAW OF INFANCY. 
 
 The guardian has no right to trade with himself, on account of 
 his ward, nor buy or use his ward's property for his own benefit. 
 All advantageous bargains which he makes with his ward's funds 
 wiU inure to the benefit of his ward, at his election. The guardian 
 cannot convert the personal property of his ward into real estate, 
 or buy land with the money of his ward. Should he do so, his 
 ward, when he attains his full age, may take the land, or the money 
 with interest; at his election. If he takes notes or other securities 
 for money belonging to his ward, in his own name, this will be 
 regarded as a conversion of the property to his own use, and he is 
 prima fade accountable for it. Thus, if he surrenders contracts 
 for lands, and takes deeds in his own name, and pledges his per- 
 sonal responsibility for a part of the purchase-money, this will be 
 held a conversion of the contracts to his own use, and the ward 
 may adopt the transaction, or claim from the guardian the value 
 of the land contracts, as he sees fit to elect. ( White v. Pa/rker^ 8 
 Barb. E. 48.) 
 
 When personal property comes into the hands of the guardian, 
 except it be money on interest, it is a general rule that the guardian 
 should sell it and put the money at interest ; or if there are debts 
 which the ward must pay, he ought to apply it to the payment of 
 the debts ; for such property produces no interest, while the debt 
 of the ward is increasing, perhaps, by reason of the accumulating 
 interest. This principle is established and sustained by numerous 
 authorities. {Beeves^ Dom. Bel. 326. Rogers v. Rogers, Hop. 
 Ch. a. 515. Glarltson v. De Peyster, Ih. 424. Smith v. Srmth', 
 4 Johns. Ch. B. 281. Evertson v. Tappen, 5 ib. 497.) Tliis prin- 
 ciple applies to every species of personal property, though it is not 
 usual to sell family pictures, plate, watches and personal orna- 
 ments, but to keep them, as they are not of a perishable nature, 
 by which to remember their former proprietors. I^or would it be 
 improper, in certain other peculiar cases, to preserve other prop- 
 erty ; as when the ward is nearly of age, and is soon to enter upon 
 a well stocked farm, which is his own property, the guardian 
 will be justified in not selling off the stock, {Beeves' Pom. Bel. 
 326.) 
 
 The guardian should not mix up his ward's property with his 
 own, and if he ^ so, he so far makes it his own as to render him- 
 self liable for ijt J| Jost. It has been held that if a guardian 
 deposits his ward's nnojijw in his own name and it is lost, he is 
 
GUARDIANSHIP OF INFANTS. 263 
 
 accountable for it. (Jenkins v. Walter, 8 GiU <Ss Jolms. {Md.'\ 
 JR. 218.) 
 
 Should the guardian neglect to invest the funds of his ward, 
 ■which he may and ought to make productive, he will be charged 
 with simple interest for the money ; and should there he gross 
 delinquency, such as refusing to render an account, or violation of 
 an express direction of the trust, compound interest may he charged. 
 {Clarkson v. De Peyster, Hop. Oh. B., 424.) But a guardian is 
 not required to exercise the extraordinary enterprise, perseverance 
 and speculating sagacity and ingenuity which give some men 
 peculiar facility for the acquisition of property. While a,cting 
 within the scope of his powers, he is only bound to fidelity and 
 ordinary diligence and prudence in the execution of his trust. 
 Holding guardians to a more strict responsibility, would prevent 
 men from assuming duties which are as necessary in society as 
 they are profitless, and sometimes thankless, to those who perform 
 them. ( White v. Pa/rlcer, 8 Ba/rb. B. 48, 53.) He should exercise 
 the same care and management in the affairs of his ward that 
 any prudent man would exercise over his own affairs ; and what 
 is regarded the requisite diligence and prudence will depend upon 
 the attendant circumstances of each case. {Glover v. Glover, 1 
 McMuUirJs {S. <7.] B. 153. And vide Be Peyster v. Olwrkson, 
 2 Wend. B. Y7, 106. Smith V. Smith, 6 J. J. Ma/rsh. [iTy.J B. 
 238. Lmiell v. Mvnot, 20 Pick. B. 116.) , , 
 
 § 1Y6. The guardian may bring an action in his own name for 
 an injury to any property of his ward in his actual possession, or 
 to which he has the right of possession. (Fugua v. Hunt, 1 Ala. 
 B. 197. Sutherland v. Goff, 5 Port. [_Ala.'\ B. 508. And vide 
 Sylvester v. Balsfon, 31 Bwrl. B. 286, 289.) 
 
 For intermeddling with the issues and profits of real estate 
 belonging to an infant, an action, it seems, will not lie in the name 
 of the infant, but the suit must be brought in the name of the 
 guardian, for the reason that the issues and profits belong to him, 
 and he must answer to his ward for them. {Beecher v. Grouse, 19 
 Wend. B. 306, 308.) A guardian may maintain an action for 
 damages for the seduction of his ward. {Fernslee v. Meyer, 8 
 Watts (Ss Serg. [Pa.] B. 416.) Formerly the action for seduction 
 could only be maintained when the relation of master and servant 
 actually existed between the plaintiff and the girl seduced; and it 
 was deemed necessary to prove acts of service by the girL Bui 
 
264 LAW OF INFANCY. 
 
 now greater liberality is shown in applying a remedy for injuries 
 of so deep and delicate a character, and hence the action may be 
 brought by any person who stands in loco jparenUs to the girl 
 seduced, or when the constructive relation of master and servant 
 exists. ( Tide BmHey v. Eichtmyer, 2 Bmh. B. 182.) The doc- 
 trine that the guardian may bring the action is recognized in a 
 case in the New York court of appeals. (BaHley v. Bichtmyer, 4 
 W. Y. B. 38, 45.) It has been held that testamentary guardians, 
 at any rate, stand in loco ;pa/rmtis, and supersede a guardian 
 appointed by the orphan's court. (YamJiouterUa case, 2 GreerCs 
 iN'.J.-\Gh.B.220.) 
 
 A guardian of a female ward is justified in stopping her elope- 
 ment, and in obtaining' her clothes, in case she has eloped. {Bar- 
 ton V. Taylor, 12 Bkg. C. L. B. 69.) 
 
 The guardian may maintain an action jn the ward's name to 
 recover property obtained from the ward by fraud before the 
 guardian was appointed. {Somes v. Skinner, 16 Mass, B. 348.) 
 But he cannot prosecute a suit in his own name, after his female 
 ward's marriage, for a debt due her before such marmage. {Bar- 
 ret V. Commonwealth, 4: J. J. Marsh. \Ky.'\ B. 389. 5 «5. 286.) 
 
 A general guardian has power to execute a release^ to render a 
 witness competent for the infant. [Cofpehwrt^. Hesey's Adm. 1 
 MilVs IS. C] B. 499.) 
 
 The rights and poy^ers of the guardian over the person and 
 property of his ward are strictly local, and cannot be exercised in 
 other states than the one in. which he received his appointment. 
 {Morrel v. Dickey, 1 Johns. Gh. B. 156. SaUne v. CHlman, 1 if. 
 S. B. 193.) Eor has the guardian any authority over the real 
 property of his ward situate in other counties, for such property is 
 governed by the law rei sitae. (2 Kenfs Gom. 227, dtmg Story's 
 Gom. on the Gonflict of Lanos, 414-41 Y.) But it is the duty of a 
 guardian to take care of and account for the money of his ward 
 from whatever source derived, and he would, therefore, be account- 
 able as guardian for money received by him in the state where he 
 received his appointment, for the lands of his ward in another 
 state, when legally sold. {Duncan v. Patty's Heirs, 5 Dana's 
 iKy.-\ B. 223.) 
 
 If there be two or more guardians, one of them has a right to 
 receive a legacy for the ward from the executor and to give him a 
 receipt for the same, and the acquittance to him is good without 
 
GUARDIANSEIP OF INFANTS. 26& 
 
 requiring a joint receipt from them all.- On the same principle, 
 if the characters of executor and of receiving guardian be united 
 in 'the same person, the guardian who charges himself, discharges 
 himself as executor. {Alston v. Mumford, 1 £rookenhrougk's [ IT. 
 S.] R. 266. Vide also Qralwm v. Domdam, 2 D&o. c& Batt. [IT. 
 C] E. 155.) 
 
 A bill cannot join a demand for a debt due by an individual as 
 an administrator or guardian, with one for a debt due by the same 
 individual in his private capacity. ( Wrem v. Oayden, 1 Howa/rd^s 
 [U. s:] B. mb.) 
 
 A. guardian has no power to sell his, ward's real estate, and 
 should hfe attempt to do so, it has been held a sufficient cause for 
 his removal. {Ex pa/rte. Crutchfield, 3 Y&rg. [Tenn.] M. 336. 
 Mason v. Wait, 4 Scam. {IllJ] R. 127. CapUnger v. Stokes, 1 
 Meigs' {Tenn.'] R. 176. Eckford v. De Kay, 8 Paige's R. 89.) 
 Neither can the guardian apply the ward's ^imcvpal to his educa- 
 tion or support, without an order of court. {Meyers v. Wade, 6 
 Rand. [ Va.'\ R. 444. M&rn y. Gason, 1 Sow. [Miss.'] ■ R. 53. 
 Ryber v. Tfuyrp, 4 JB. Mon. [Ky.] R. 313.) 
 
 It is regarded as a violation of duty on the part of a guardian 
 to permit his infant ward to live in idleness, and to support him 
 out of his estate, when he ifi capable of supporting himself by his 
 industry. {Gla/rh v. Glwrk, 8 Paiges B. 152.) 
 
 § 177. The guardian is required to furnish an account to the 
 court that appointed him, whenever called upon, but always at 
 the determination of his guardianship; and if he neglects to do 
 so, he must be cited by the court and required to render such 
 account. {BaAley^. Rogers, 1 Greenl. [Me.} R. 186. Robertson 
 V. Robertson, 1 Root's [Gonn.'] R. 51.) And obedience to an order 
 requiring the guardian to adeount, may be enforced by attachment, 
 as for a contempt. {Doran v. Dempsey, 1 Brad. [iT. Y. Sicr.] R. 
 490. Seamm v. Puryea, 11 JV. T. R. 324.) 
 
 The court of chancery, or other court having general equity 
 jurisdiction, may call upon a guardian to account, though he may 
 be a testamentary guardian, or one appointed by an inferior court, 
 and such guardian is responsible to the former court for his con- 
 duct. {Matter of Andrews, 1 Joh/rf,s. Gh. R. 99. Matter ^ Dyer, 
 5 Paige's R. 534.) 
 
 In the State of New York, the ward, on arriving at age, may 
 compel the guardian to account without showing any cause ; and 
 34 
 
266 LAW OF INFANCr. 
 
 previous to Iiis attaining to full age, the guardian may be com 
 pelled to render his account upon the application of the ward, or 
 any near relative of the ward. (2 B. 8. pari 2, ch. 8, tit. 3, § 1"1. 
 2 Stat, at La/rge, 158.) But the administrator of a deceased 
 guardian cannot be called upon to account before the surrogate. 
 The only remedy in such a case is by complaint in a court of 
 equity. {Farnsworth v. OUpham,t, 19 Barb. B. 30, 35. Matter 
 of VanWych, 1 Barl. Ch. B. 565, 568.) 
 
 Immediately on the death of the ward all the guardian's func- 
 tions cease, because the property in his hands has become, by that 
 event, vested in others; and, of course, the guardian is then 
 required to make out and render his account. (1 Bowv. Inst. 147, 
 148.) And we have seen that when a female ward marries, the 
 better opinion is, that the guardianship determines; and then 
 the guardian will be required to render his account. {Ante, § 170.) 
 
 An action will not lie against the guardian, or against the ward, . 
 before the accounts are settled. {Nutz v. Beutter, 1 Watfs [_Pa.'\ 
 B. 229. Smith v. PUlbrick, ^ JST. H. B. 395. Dan}is v. Ford, 7 
 Ohio B. 104. Stillwell v. MiUs, 19 Johm. B. 304. Anderson v. 
 Maddox, 3 MoCord^s [S. C] B. 237.) But a suit may be sus- 
 tained on the guardian's bond, for not delivering up the property 
 of the ward, although no order has been made by the court, {Jaa"- 
 rett V. The State, 5 Gill c& Johns. [Md.] B. 27.) And in Mary- 
 land, the action may be brought against the surety, although the 
 principal, residing in the same county, had not been sued. (lb.) 
 And the sureties are not released from their responsibility, although 
 a new bond is executed with other sureties. {McMath v. The 
 State, 6 Sar. di Johns. [Md.] B. 98.) Neither are the sureties 
 discharged by the neglect of the county court, to compel the 
 guardian to render the inventory and make his annual settlements 
 according to the bond. {Convmonwealth v. Preston, 5 Mon. {By.'] 
 B. 584.) But in the State of iN'orth Carolina, it has been held 
 that the sureties will be discharged, unless the infant, on an-iving 
 at age, have a full settlement with his guardian of all matters 
 within three years, and either sue him for any balance due, or 
 notify the sureties of the deficiency. (Johnson v. Taylor, 1 RawKs 
 B. 271.) 
 
 If the legal effect of the guardian's bond is several, a separate 
 suit may be maintained for the benefit of each ward. {Barnett v. 
 Comnwnwealth, 5 J. J. Ma/rsh. [Ky.] B. 286.) A guardian's 
 
GVARDIANSHIP OF INFANTS. 267 
 
 bond is not discharged by another bond given on settlement -with 
 the ward, after she conies of age. {Hamlin v. Atkinson, 6 Band. 
 [ Va!] R. 574] 
 
 In New York, the bond cannot be sued until proceedings for 
 an account have been had against the guardian. {SaUsbv/ry v. Van 
 Hoesen, 3 EiWs JR. 77.) But the contrary doctrine is held in the 
 State of Tennessee. {ITie JusUoes, eto. v. WilUs, 3 Yerg. B. 461.) 
 In Maine, where the only breach of the bond was a neglect to 
 return an inventory of the ward's estate within a proper time, and 
 the estate was not subject to the payment of debts, nominal 
 damages only were allowed in an action upon the bond. {Fuller v. 
 Wing, 17 Maine B. 222.) But a plea to the complaint in such a 
 case, that no damage had happened to the ward from the breach of 
 the bond, would be had. {Commonwealth v. Preston, 5 Mon. B. 
 587.) The liability of the surety is not limited to the property 
 owned by the ward when the bond was taken, but extends to all 
 property subsequently acquired. {Gray v. Brown, Bich. \_S. U.I 
 B. 351.) But a surety is not liable in Massachusetts, for a breach 
 of the guardian's duty in respect to a sale of the ward's real estate 
 pursuant to a license, under the statute of 1783, ch. 32. {Lymwn 
 V. ConTc&y, 1 Met. B. 317.) 
 
 It has been held that the guardian's bond must be taken in open 
 court, and not in the clerk's office, it being a judicial and not a 
 ministerial act. {Page v. Taylor, 2 Munf. [ Va.'\ B. 492.) In 
 North Carolina, the bond should be made to the justices present in 
 court, granting the guardianship, and a bond to A B and the rest 
 of the justices, is not in pursuance of the act of 1762 in that 
 state. {Justices, etc. v. Wilson, 2 Dev. B. 6. Same v. Pozier, 
 3 ih. 287. 4 a. 392.) And a bond in the same state, payable 
 " to the justices of Caswell county court," has been held to be void 
 at common law, and also by statute. {Same v. Buchaman, 2 
 Murph. B. 40.) But unless the statute requires the bond to be 
 taken in open . court, it will be binding, if executed out of court, 
 to the proper parties and in the proper form. 
 
 In Alabama, the action upon the guardian's bond must be 
 brought in the name of the judge of the county court. {Pmis v. 
 Pickson, 2 Stewart's B. 370.) 
 
 In Kentucky, the assignor of a decree in favor of a ward, agaiiist 
 the administrator of his guardian, may sustain a suit as relator on 
 the administrator's bond. {The Jdommormealth v. Boston. 3 B. 
 
268 LAW OF INFANCY. 
 
 Man. B. 293.) In chancery, an infant may appear by leas prbahem 
 amd, and call his guardian to an account, even during minority, 
 and the court will even permit a stranger to come in a;nd complain 
 of the guardian for his :negligeiice and abuse of the infant's estate. 
 {Earl of Pomfret v. Lord Windsor, ^ Ves. H. 484. Duke of 
 Sawdlton Y.Lord Mohrn, 1 P. Wms. R. 119.) By the practice in 
 a court of chancery jurisdiction in this country, the infant is 
 allowed one year,- after arriying at majority, in which to investigate 
 the guardian's account^, and the guardian is not entitled to an 
 absolute discharge until the expiration of that time. {Matter of 
 Yam, Home, 1 Paige's P. 46.) And the guardian is liable to 
 account at all times. {In re Surjce,,! Ball (& Pea. [Irish'] B. 74() 
 In some states this matter is regulated by statute, compelling an 
 account once in two years, and the like. A settlement in the 
 orphan's court, in Maryland, is not conclusive in a court of equity. 
 {Crarpster v. Qxiffiihy 2 Bla/nd's B. 5. Vide also on this and 
 hundred s%ihjects,, Ping, on Inf.. 175 eit aeq. notes 7, 8.) 
 
 Such are some of the leading principles with respect to the duties, 
 obligations and rights of guardians, as established by the adjudged 
 cases, and it is unnecessary to elaborate further in this place. It 
 may be added, however, .that testamentary guardians stand on 
 the same footing as other trustees, and may be called to account, 
 directed in their conduct, or removed from office. by a court of com- 
 petent jurisdiction, in all proper cases. ( Willa/rd's Ex. 453.) 
 
 § 1T8. The connection between guardian and ward is so close, 
 the guardian's opportunities of acquiring knowledge of the ward's 
 property and inHuenee oyer his mind are so many and various, that 
 when a man acts as guardian, or trustee in the nature of guardian, 
 for a:n infant, the courts are extremely watchful to prevent that 
 person taking any. advantage, either by a hasty and ill-oonsidered 
 settlement of accounts, ^ or byway of direct bounty, immediately 
 upon his ward or cestui que trust coming of age, and , at the time 
 of settling the account or delivering up the trust. This rule is 
 applicable wherever the, connection and influence of guardianship 
 ha,ve continued, though the ward may have been of age for some 
 time before the date; of the transaction. Undoubtedly, if, after the 
 ward or cestwi que trust comes of age,- and has been actually put 
 into possession of the estate, he thinks fit, when sui juris, and at 
 liberty, to grant a reward for care and trouble, the court could 
 never set aside such a transaction; but the courts guard against 
 
OUARDIANSSIP OF INFANTS. 269 
 
 this being done at the very time of accounting or delivering up the 
 estate, as the terms on which the guardian will perform that duty ; 
 and so far has this vigilance been carried, that the relations of 
 guardian and ward are in equity decisive against the validity 
 of transactions which, between strangers, could not be impeached ; 
 and it is scarcely possible, in. the course of the connection of 
 guardian and ward, any more than in that of attorney and client, 
 or trustee, and cetslmi que trust, that a transaction shall stand, pur- 
 porting to be a bounty for the execution of an antecedent duty. 
 {MoPherson on Inf. 260, and vide also Sugruemn v. JBaseley, 14 
 Vesey's E. 273. Dmt v. Bennett, 4 Mylne & Craig's R. 269.) \ 
 
 In illustration of this principle it may be stated, that when 
 accounts were settled between a guardian and his female ward, a 
 few months after the latter came of age, and were signed by her 
 without having been examined by any one on her behalf, and with- 
 out any delivery of vouchers, the accounts, too, being applicable 
 only to a part of the receipts and expenditures, and waived by the 
 guardian's delivering in a subsequent account, purporting to be 
 an account from the commencement of the guardianship, the 
 accounts settled between the guardian and ward were fiet aside. 
 {Wych V. PacMngton, 3 Bro. Par. Gas. 46.) So, also, where a 
 guardian, after his ward attained full age, continued to manage the 
 property, at the request of the ward, and before the accounts of 
 his receipts and payments during the minority were settled, it was 
 held that this was, in effect, a continuance of the guardianship as 
 to property, and that he must account on the same principle as if 
 they had been transactions during the minority. {MelUsh v. Mel- 
 Ush, 1 Sim. <& Sim. B. 138. McPherson on Inf. 261.) Under 
 these circumstances an injunction was granted, in terms, to restrain 
 the guardian from proceeding in an action to recover the balance 
 claimed by him on account of the transactions after his ward came 
 of age. {li.) 
 
 So, also, it has been held in this country, upon the same principle, 
 that contracts made by guardians with their wards, immediately 
 after they became of age, are regarded with suspicion by the court 
 of chancery, and if found to have been made with a view to spec- 
 ulation, or upon the appearance of the least unfairness, they will 
 be disregarded. {Eicha/rdson v. Lkmey, 1 B. Man. {Ky.'\ B. 671.) 
 However, a full and fair settlement between guardian and ward, 
 after the ward's majority, determines the trust, and wiU be recog- 
 
& 
 
 270 hAW OF INFANCY. 
 
 nized by tlie courts. {OopUnger v. StoTces, 1 M&igs' [Tmn.'] B. lib.) 
 And the settlement of a guardian's account is so far conclusive upon 
 the infant as to throw upon him the biu-den of proving an error. 
 {Dalcm V. Demmmg, 6 Podge^s R. 95.) A parol discharge, how- 
 ever, of a' guardian by his ward, just after coming of age, without 
 an account, will not bar an account against the guardian. {Admr. 
 of Johnson v. Eocr. of Jolwison, 2 EilVs [_S. C] Oh. B. 286.) But a 
 release given by a ward, six months after she comes of age, to her 
 guardian, freely and fairly, without fraud, misrepresentation, or 
 undue means to obtain it, is valid. {Ki/rby v. Taylor, 6 Johns. 
 {N. 7".] Gh. R. 242. Tide also Eirby v. Turner, Hop. R. 309. 
 Fisher. Miller, II. 267. Rapalje v. Eall, 1 Scmd. Ch. R. 399. 
 Gale v. Wells, 12 Barl. R. 84.) 
 
 § 179. In the account of the guardian, all the transactions must 
 appear which have taken place between the guardian and the 
 ward ; and, if the guardian were indebted, in his individual account 
 to himself as guardian, he will be presumed to have received 
 the amount in his capacity of guardian. It should contain all th.e 
 moneys which have come to his hands, the dates when received, 
 and show how the money has been employed. On the other hand, 
 it ought to state all the moneys disbursed, for what purpose they 
 have been paid out, the date when paid, and to whom. Interest 
 ought to be charged on both sides. When one person is guardian 
 of several, wards, he is required to keep separate accounts with 
 each. (1 Bovm. Inst. 145,. 146, referring to GrowelVs appeal, 2 
 Watts' [Pa.] R. 295. O'mU v. Herbert, G. W. Dudley's Eg. R. 
 30. Admr. of Johnson v. Em: of Johnson, 2 HiWs \_S. (7.] Gh. R. 
 285. Hayward v. Ellis, 13 Pioh. R. 272. Ka/rr v. Ea/rr, 6 Dana's 
 [Ey.] R. 3. Hend/ricks v. Huddleston, 6 Sme. <& Marsh. [Miss.] 
 Ch. R. 422. Tide also Wait v. Wait, 1 Brad. [Jf. T. Sur.] R. 345.) 
 
 It is the duty of guardians, when necessary, to employ able coun- 
 sel, and they will be allowed, in their account, the customary 
 charges for such services ; though a guardian will not be allowed to 
 charge his ward with fees of counsel unnecessarily employed, to 
 represent him as a co-distributee, before his appointment to the 
 guardianship. ISTor will he be allowed accounts against his ward 
 to affect the capital of his ward. The income may be anticipated, 
 and in extraordinary cases part of the capital appropriated, by an 
 order of the court, but not otherwise. {Chapline v. Moore, 7 Mon. 
 [Ey.] R. 159, 166.) 
 
OUARDIANSHIP OF INFANTS. 271 
 
 "When the personal services of an infant in the family of an 
 assumed guardian are equal to her maintenance, she will not be 
 charged with her maintenance. (Bush v. White, 2 Mon. B. 101. 
 Wait V. Wait, 2 Brad. [if. Y. Sur.] B. 345.) And when minors 
 were invited by their guardian to reside with him, gratuitously, they 
 will not afterward be made to pay for their board. But the guar- 
 dian will be allowed for clothing and other necessaries furnished 
 his ward. {McDowell v. Caldwell, 2 MoCord's [S. C] Ch. B. 56.) 
 
 It has been held that proof of parol declarations of a guardian, 
 that she did not intend to charge her ward for board, is admissible 
 to repel a charge for board in her life-time, exhibited by her repre- 
 sentative after her death. {Hooper v. Savage, 1 Munf. \_Ya.] 
 B. 119.) 
 
 When the charges in the accounts of a guardian exceed the 
 annual income of his ward's estate, he must make out at least as 
 clear a case before the court for the subsequent sanction of his 
 expenditures, as he would have been required to do on an applica- 
 tion for its authority to make them in the first place. {Holmes v. 
 Logan, 3 8tr6bha/rffs [S. G:\ Eg. B. 31.) 
 
 The guardian cannot be allowed in his account for services ren- 
 dered for the ward before he was appointed guardian; and a 
 promise of the ward to pay for them, made after he became of 
 age, does not make them proper matters of charge on the account- 
 ing. {Clowes V. Yan Antwerp, 4 Ba/ri. B. 416.) 
 
 "When the guardian advances money out of his own pocket for 
 the erection of buildings upon the land of his ward, without the 
 order of a court of equity, he cannot have the amount allowed in 
 his accounts, nor can he recover the amount of his ward. {Hassard 
 V. Bowe, 11 Barl. R. 22.) 
 
 Of course, the guardian will be allowed for his reasonable 
 expenses and commissions for services incurred in the discharge of 
 the trust, and these are generally prescribed by statute or the rules 
 ' of the courts, and there is little or no difficulty in ascertaining what 
 they are. ( Vide Matter of Boberts, 3 Johns. Ch. B. 42. Matter 
 of Kellogg, 7 Paige's R. 265. Booth v. Sineath, 2 Sirolharfs \8. 
 C.I Eg. B. 31. Glwjoes v. Tan Antwerp, 4 Barb. B. 416. 75. 2 
 Seld. B. 466. Morgan v. Morgan, 39 Ba^l. B. 20. Rapalje v. 
 Hall, 1 Samd. Ch. B. 399.) 
 
 § 180. A guardian ad Utem is a person appointed by the court 
 when an infant is sued in a civil action or proceeding, to defend 
 
272 £4r OF INFANCY. 
 
 the same ; and in some instances the person appointed to prosecute 
 an action for an infant in court. The peculiarities and particulars 
 of this office, how and under what circumstances appointed, and 
 the duties, powers and responsibilities pertaining to it, have been 
 fully discusseVi in a previous chapter, and reference to that chapter 
 will suffice in this place.. {Ante, ch. 12.) A special guardian is 
 one who is appointed for a special pui-pose, to represent the infant 
 in some special proceeding, and perform some special act, which 
 the iafant would be required to perform, or might perform, if of 
 full age. For examplcj the person appointed to sell aind convey 
 the real estate of ah infant in behalf of the infant ; or the person 
 appointed by the court to represent the infant in proceedings to 
 compel the specific performance of a contract of his ancestor by 
 the infant heir, whose duty it is to examine into the circimistances 
 of the case, and protect the rights of the infant in the proceedings ; 
 and if a conveyance is ordered, to execute it on behalf of the 
 infant. In all these cases of special guardianship, the proceedings 
 are regulated by express provisions of statute, and when the par- 
 ticular transaction for which the appointment was made is accom- 
 plished, the duties of the special guardian are at an end. The 
 office is entirely temporary in its nature, and is limited to a single 
 ultimate end. Whatever the special guardian does is done for the 
 infant, and the papers he executes are executed in the name of 
 the infant, and all in pursuance of the special order of the com-t. 
 The act when done, or the conveyance when made, pursuant to the 
 order of court, is usually made, by statute, as good and effectual in 
 the law as though done or made by the infant when of fall age. 
 The provisions of the statute must be strictly observed in all these 
 cases, or the infant will not be bound by the act of the guardian. 
 It is wholly unnecessary to dweU. upon the subject here, because 
 the matter will be recurred to hereafter, when the proceedings in 
 these special cases of infants, and the rules by which they are gov- 
 erned, will be briefly considered and explained. 
 
dUSTODT OF INFANTS, f 273 
 
 CHAPTER XVI. ! 
 
 CUSTODY OF INPAUTS — WHO ENTITLED TO SUCH CTJSTODT — OrSTODT BY 
 
 STATtTTE — JTJEISDIOTION OF COTJETS IN QUESTIONS OF CUSTODY 
 
 INTEKFEEENOE OF C0UET8 BY HABEAS COEPUS CUSTODY IN OASES 
 
 OF ILLEGITIMATE INFANTS — LIBEETY OF CHOICE BY INFANTS CUS- 
 TODY IN OASES OF GUARDIANSHIP. * 
 
 § 181. Long, elaborate and tedious treatises have been written 
 and published upon the subject of the custody of infants, the 
 defects of the law in relation to it, and how the same may be 
 remedied ; the uncertainty prevailing in the application of the law 
 to the different cases as they arise, and the view which the courts 
 seem to take of the frequently conflicting wishes and claims of 
 parents and guardians where family differences unhappily occur, 
 or other circumstances exist which call for the interference of 
 judicial authority ; but it is believed that a bird'seye view may be 
 taken of the subject, and all the general and more important rules 
 and principles governing such cases may be grouped together in a 
 comparatively small compass, and stated in a comparatively few 
 paragraphs and poiuts. 
 
 The Roman law gave the father absolute power oyer the persons 
 of his children. According to some authors the atrocious power of 
 putting his children to death and of selling them in the open 
 market, was vested in the father from the earliest times of the 
 republic. Toward tlie mother the law enjoined upon children the 
 duty of showing due reverence and respect, and punished any 
 flagrant instance of the want of it ; but' beyond this she had no 
 other claim. 
 
 In France, by the Civil Code, the authority over infants is given 
 exclusively to the father during his life, and after his death the 
 right of the mother accrues. But the father may appoint by will 
 a special adviser to act in conjunction with the mother, without 
 whose concurrence she can perform no act of guardianship. 
 
 The general rule of law in England is that the legal power over 
 infant children belongs to the father, and that during his life the 
 mother has none. {Forsyth on Infants, 2-11.) According to Judge 
 Blackstone, " a mother, as such, is entitled to no power, but only to 
 reverence and respect." (1 Black. Com. 453.) And according tp 
 the common law, the father has a right to the exclusive custody of 
 his child, even at an age when it still requires nourishment from 
 35 
 
 ( 
 
274 ■'» LAW OF TNFANCT. 
 
 lAii mother's breast. " The law is perfectly clear as to the right of 
 'the father to the possession of his legitimate children, of whatever 
 age they may be." {Ex parte MoGlellan, 1 Dowl. P C. 34.) 
 Again, "it is the universal rule, with some exceptions, that the 
 father is entitled to the custody of a young child even against the will 
 of the mother.. In case of there being no father, then the mother 
 is the person next entitled to its custody." {Ex joa/rte Olover, 
 4 Dowl. P. G. 293.) This last assertion must be taken with the 
 proviso that no testamentary guardian has been appointed by 
 the father, for a testamentary guardian is expressly authorized by 
 statute, and when one is appointed, he has t^ie custody of the 
 child, in defiance of the mother. 
 
 § 182. The law upon the subject in this country is substantially 
 the same as in England, except where the same has been occasion- 
 ally changed by statute. Chancellor Kent, in his invaluable com- 
 mentaries, sums up the matter thus : 
 
 " The father may obtain the custody of his children by the writ 
 of habeas corpus, when they are improperly detained from him ; 
 but the courts, both of law and equity, will investigate the circum- 
 stances, and act according to sound discretion, and will not always, 
 and of course, interfere upon haheas corpus, and take a child, 
 though under fourteen years of age, from the possession of a third 
 person, and deliver it over to the father against the will of the child. 
 They will consult the inclination of an infant, if it be of a, suflSciently 
 mature age to judge for itself, and even control the right of the 
 
 \ father to the possession and education of his child, when the nature 
 of the case appears to warrant it." (2 Kenfs Com^ 194.) 
 
 The same learned author states in another place: "And in 
 consequence of the obligation of the father to provide for the main- 
 tenance, and, in some qualified degree, for the education of his 
 infant children, he is entitled to the custody of their persons, and 
 to the value of their labor and services. There can be no doubt 
 that this right in the father is perfect, while the child is under the 
 age of fourteen years. But as the father's guardianship, by nature, 
 continues until the child has arrived to full age, and as he is entitled 
 by statute to constitute a testamentary guardian of the person and 
 estat^j'of his 'children until the age of twenty-one, the inference 
 would seem to be, that he was, in contemplation of law, entitled 
 to the custody of the persons, and to the value of the services and 
 labor of his children during their minority." (2 Kenfs Com. 193.) 
 
CUSTODY OF INFANTa. 275 
 
 And once again the learned chancellor says : " The father, and, 
 on his death, the mother, is generally entitled to the custody of the 
 infant children, inasmuch as they are their natural protectors, for 
 maintenance and education. But the courts of justice may, in ] 
 their sound discretion, and_when the morals, or safety, or interests \ 
 of the children str ongly require it, withdraw the infants from the / 
 custody of the fameror mother, and place the care and custody of J 
 them elsewhere." (2 KetvSs Com. 205.) 
 
 § 183. Chancellor Kent cites as authorities to sustain his posi- 
 tion, numerous cases, both English and American, which settle the 
 doctrine as he states it. From the authorities collected in the note 
 subjoined to the text, the learned author, in substance, lays it 
 down : though the court of chancery has jurisdiction to control 
 the father's possession of his child, yet in England a court of com- 
 mon law has no such delegated authority. In the case of The King 
 V. GreenhUl (4 Adoljph. <& MUs, 624), it was held, that the father 
 was entitled to the custody of his legitimate children when they 
 were too young to exercise a discretion as to their custody. The 
 father's right is superior to that of the mother, unless it appears 
 that the child would be exposed to cruelty or gross corruption. 
 Upon habeas corpus the chancellor of England has the same juris- 
 diction as a judge, and has nothing to attend to but personal ill- 
 usage to the child, as a ground for taking it from the father. But 
 when there is a cause in court, other circumstances may be con- 
 sidered, and if the father cannot educate the child in a manner 
 suitable to the property given to it by another, the court will not 
 permit the father to withhold from it that education ; and in a 
 special case of the kind, chancery would not, on the father's appli- 
 cation, withdraw a child from the custody of its aunt. {Lyons v. 
 Blinhin, 1 Jacob's R. 245.) 
 
 In one case before ihe assistant vice-chancellor of New York,, on 
 a bill by the mother for a separation from her husband for abandon- ; 
 ment, and a claim for the custody of her infant children, the court 
 considered it to be the settled English law, that the father had the 
 right to the custody of his children, with the exception of very 
 tender infants, uiiless his conduct was such as to endanger the 
 bodily or moral welfare of them, or any of them, andjliat 
 the doctrine of the common law had been weakened, though not 
 overthrown, in^he United States. {Ahrenfeldt v. Ahrenfeldt, X 
 Ecff. PLB.m) 
 
 / 
 
2Y6 lA-W of infancy. 
 
 In another case in the late court of errors of New York, it was 
 decided that the father was entitled to the custody of his minor 
 children ; but that if the parents lived apart under a voluntary 
 separation and the father had left the infant in the custody of the 
 mother, that custody would not be transferred to the father on 
 habeas corpus when the infant was of tender age and sickly habit, 
 and especially if the qualifications of the mother for the case were 
 superior. The decision of the supreme court was, that the husband 
 had the better title and paramount right to the custody of his minor 
 children, in the absence of any positive disqualification on his part 
 for the discharge of his parental duties, and the alienism of the hus- 
 band was not such a disqualification : and the court of errors affirmed 
 the decision. (Mercien v. The People, 25 Wend. H. 64. The People 
 V. Mercien, 3 EilVs B. 399. Vide 2 Kent's Com. 194, notef.) 
 
 The same rule upon the subject is recognized by the courts of 
 England. It is there held that the father is entitled to the custody 
 of his legitimate children, to the exclusion of their mother, though 
 they be within the age of nurture. {Rex v. Greenhill, 6 WeviUe & 
 Manning's R. 244. 4 Adolph. d) Mlis B. 624.) And if a divorced 
 wife should detain her infant child from the father, he may main- 
 tain proceedings to obtain its custody without any previous demand 
 upon the mother to surrender it. {Ex pa/rte Wilte, 76 Eng. G. L. 
 R. 680.) 
 
 § 184. As a general thing, the custody of infaints, as between the 
 father and mother, is regulated hy statute. Thus, in England, the 
 hardships infiicted upon unoffending mothers by a state of the law 
 which took such little account of their claims or feelings in a mat- 
 I ter in which they are so deeply interested as the custody of their 
 children, had long been felt and observed, until finally in 1839, a 
 statute was passed, known by the name of Mr. Justice Talfourd'a 
 act, designed to mitigate the then existing cruelty, and which is in 
 force at the present day. 
 
 "When this bill was in the House of Lords, Lord Lyndhurst is 
 reported to have said, that by the law of England, as it then stood, 
 the father had an absolute right to the custody of his children, and 
 to take them from the mother. However pure might be her con- 
 duct, however amiable, however correct in all the relations of life, 
 the father might, if he thought proper, exclude her from all access 
 to the children, and might do this from the most corrupt motives. 
 He might be a man of the most profligate habits ; for the purpose 
 
CUSTODT OF INFANTS. 277 
 
 of extorting money, or in order to induce her to concede to his 
 profligate conduct, he might exclude her from all access to their 
 common children, and the course of the law would afford her no 
 redress. That was the state of the law as it then existed. Need 
 he say that it was a cruel law, that it was unnatural, that it was 
 tyrannous, that it was unjust ? 
 
 On the other side it was argued that the father was responsible 
 for the rearing up of the child ; but when unhappy differences 
 separated the father and mother, to give the custody of the child 
 to the father, and to allow access to it by the mother was to injure 
 the child ; for it was natural to expect that the mother would not 
 instil into the latter any respect for the husband, whom she might 
 hate or despise. Such a system would prevent a child from being 
 properly brought up. The bill, however, became a law, which 
 provides : 
 
 1. That it shall be lawful for the Lord Chancellor and the 
 Master of the Eolls in England, and for the Lord Chancellor and 
 the Master of the KoUs in Ireland, respectively, upon hearing the 
 petition of the mother of any infant or infants being in the sole 
 custody of the father thereof, or of any person by his authority, or 
 
 • of any guardian after the death of the father, if he shall see fit, to 
 make order for the access of the petitioner to such infant or infants, 
 at such times, and subject to such regulations as he shall deem 
 convenient and just ; and if such infant or infants shall be within 
 the age of seven years, to make order that such infant or infants 
 shall be delivered to and remain in the custody of the petitioner 
 until attaining such age, subject to such regulations as he shall 
 deem convenient and just. 
 
 2. That on all complaints made under this act it shall be lawful 
 for the Lord Chancellor or the Master of the Eolls in England, and 
 for the Lord Chancellor or the Master of the Eolls in Ireland, to 
 receive affidavits sworn before any master in ordinary, or master 
 extraordinary of the court of chancery, and that any person who 
 shall depose falsely and corruptly in any affidavits so sworn to, shall 
 be deemed guilty of perjury and incur the penalties thereof. 
 
 3. That all orders which shall be made by virtue of this act by 
 the Lord Chancellor or the Master of the Eolls in England, and 
 by the Lord Chancellor or the Master of the Eolls in Ireland, shall 
 be enforced by process of contempt of the high court of chancery 
 in England and Ireland respectively. 
 
278 LAW OF INFANCY. 
 
 4. Provided, always, that no order shall be made by virtue of 
 this act, whereby any mother against whom adultery shall be 
 established by judgment, in an action for criminal conversation at 
 th6 suit of her husband, or by the sentence of an ecclesiastical 
 court, shall have the custody of any infant, or access to any infant, 
 any thing herein contained to the contrary notwithstanding. (2 
 and 3 Viot. Ch. 5i. Forsyth on Inf. 13Y-139.) The object of this 
 act, as is apparent upon the face of it, is to protect mothers from the 
 tyranny of those husbands who may ill-use them, and to allow 
 the mother of her children to assert her rights as a wife, without the 
 risk of any injury being done to her feelings as a mother, and this 
 has been the construction put upon the act. In one of the first 
 cases b?:ought before the court under the act, the custody of five 
 infant children was transferred from the father to the mother, on 
 the ground that the father had been guilty of openly immoral con- 
 duct, and was, withal, of an irreligious character, and was bringing 
 up his children in a way calculated to demoralize them. ( Wa/rde 
 V. Warde, 2 Phillim. B. Y86.) 
 
 § 185. In the State of New York, the statute provides that when 
 a husband and wife shall live in a state of separation, without 
 being divorced, and shall have any minor child of the marriage, on 
 application of the wife, if she be an inhabitant of the state, the 
 supreme court, upon habeas corpus, may award the charge and 
 custody of the child to the mother, for such time, under such regu- 
 lations and restrictions, and with such provisions and directions as 
 the case may require. (^ B. S.part2,ch.?>,tit.%%%l,'2i. ^ Stat, 
 at La/rge, 155.) Under this statute the supreme court of the state 
 has declared, that the general doctrine that the right of a father to 
 the custody of his minor children is paramount to that of the 
 mother, is well settled ; although he may forfeit that right by mis- 
 conduct,, or lose it by disqualification, and it may be suspended by 
 reason of the tender age of the child and its welfare, requiring 
 that it be with the mother. But a strong case must exist to war- 
 rant the depriving him of this right, even for a limited period ; 
 that when the wife has separated from her husband without any 
 sufficient cause or excuse, she ought not to have the custody of her 
 child, unless the health and present condition of the child impera- 
 tively require it. {The People v. Humphrey, 24 Barb. B. 521.) 
 
 Of course, proceedings by habeas corpus, in behalf of a wife 
 living in a state of separation from her husband, respecting the 
 
CUSTODT OF INFANTS. 279 
 
 custody of a minor cMd, can be entertained only by tbe supreme 
 court, not by a justice of that court, nor a county judge, though 
 such justice or judge may entertain proceedings by habeas corpus 
 in most other cases. {The People v. Humphrey, 24 Barl. R. 521.) 
 
 When the husband and wife live separate and apart from each 
 other, evidence as to the causes of their separation and as to the 
 relative merits and demerits of the parties, with a view to the exer- 
 cise of a sound discretion by the court, will be received on the 
 return of a haleas corpus sued out by the wife. (TAe People v. 
 Brooks, 35 Barh. B. 85.) 
 
 There is also another provision of the New York statute, by 
 which, in any suit brought by a married woman for a divorce, or 
 for a separation from her husband, the court in which the same 
 shall be pending may, during the pendency of the cause, or at its 
 final hearing, or afterward, as occasion may require, make such 
 order as between the parties, for the custody, care and education 
 of the children of the marriage, as may seem necessary and proper, 
 and may, at any time thereafter, annul, vary or modify such order. 
 (2 R. S.pa/rt 2, ch. 8, tit. 1, § 59. 2 Stat, at Large, 154.) 
 
 Under this provision of the statute, it has been held that the 
 award of the care and custody of the child to the mother must be 
 presumed to carry with it the obligation to support the child, in 
 the absence of evidence to the contrary ; or at least to relieve the 
 father from the obligation to furnish such support upon the call of 
 the mother. The general rule, however, is recognized, that, as 
 between the father and mother, the obligation to support the child 
 rests primarily upon the father; and, in cases of divorce, when the 
 custody of the child is awarded to the mother, the decree usually 
 provides for the support of the child. {Burritt v, Burritt, 29 
 Barh. R. 124.) 
 
 § 186. The statutes of others of the American States are similar 
 to those of New York. 
 
 In the State of Vermont the statute provides that parents shall 
 have the care and custody of their minor children while living 
 and cohabiting ; but if the parents live separate and apart from each 
 other, the supreme court may order and decree in regard to the 
 care and custody of their minor children. And the same power is 
 given when a divorce is decreed. {R. S. of 1863, ch. 70, §§ 31, 46.) 
 
 In the State of Massachusetts, the father, if living, may have 
 the custody of his minor children ; and if not living, then the 
 
280 LAW OF TNFANCT. 
 
 custody is with the mother. {Gen. Stat: ch. 109, § 4) It seems,. 
 however, that the father may appoint a guardian for his infant 
 children by will. {Ih. § 5.) In case the father and mother live 
 separate and apart from each other, unless there is some good arid 
 justifiable cause of separation, the court will riot sanction such 
 unauthorized separation by ordering their infant children into the 
 custody of the mother. If there be any good cause of divorce, 
 either a mnoulo or a mensa, and proceedings are instituted, the 
 court will then take such order as to the custody both of the wife 
 and children as the circumstances of the case may require ; and in 
 all cases the proceedings are governed by the judicial discretion 
 of the court, in directing which all the circumstances are to be 
 taken into consideration. In the case of a child of tender years, 
 the good of the child is to be regarded as the prominent considera- 
 tion ; and generally the same rule in such cases is the same in 
 Massachusetts as in New Tork. {The Oommonwealtk v. Briggs, 16 
 Pic^fc. ^. 203.) 
 
 . In the State of Ehode Island, a father may appoint a guardiari 
 for his infant child by will. {R. 8. of 1857, ch. 138, § 1.) But 
 after a divorce, or where the wife lives separate from her husband, 
 the custody of her children is given to the mother. (/5. ch. 135; 
 §§ 1, 2.) In cases of application of divorce, jurisdiction in regard 
 to the custody of the minor children is vested in the supreme court. 
 {lb. ch. 137, § 12.) 
 
 In the State of Virgiriia, in case the parents are divorced, the 
 court is vested with the power to order in regard to the custody 
 and maintenance of their infant children. {Code of 1849, ch. 109, 
 §12.) 
 
 In the State of North Carolina, the father may dispose of the 
 custody and tuition of his infant children by will ; but in case the 
 parents are divorced, the court may commit the custody of the 
 children to either the father or the mother. {Rem. Code, ch. 54, §§ 
 1,4.) 
 
 In Tennessee, where the wife is abandoned by her husband, she 
 may be appointed guardian of her infant children by the county 
 court or the court of chancery, and she will then be entitled to 
 their custody. The county court may take cognizance of all 
 matters relating to minors. {Code of 1858, §§ 2490, 2493.) 
 
 In Texas, if the father is dead, the mother may be appointed the 
 guardian of her infant children, and their custody will be com- 
 
CUSTODT OF INFANTS. 281 
 
 mitted to her. In cases of sepaxation between hwsband and wife, 
 tbe district conrt may give the custody of the children to either 
 father or mother. {Oldham ds White's Dig. p. 228, art. 951.) 
 
 In the State of Indiana, the: custody , of the infant children is 
 given by statute to the father, and if the father is dead, then to 
 the mother, provided always that the parents are suitable persons 
 to exercise the trust. (2 H. S. of 1862, ch. 4.) 
 
 In the State of Nebraska, the father, if living, is entitled to the 
 custody of his infant children ; if the father is dead, then the cus- 
 tody of the children is committed by statute to the mother. {B. 8. 
 ch. 22, § 6.) 
 
 § 187. There is a considerable degree of uniformity in the laws 
 of the several states with respect to the custody of infants, and the 
 spirit of the adjudged cases upon the subject, both in England 
 and in this country, is essentially the same. As a general rule, the 
 father is entitlisd to the custody of his minor children, and in case of 
 his death, the custody will be given to the mother. There are, 
 of course, exceptions to the rule, when the matter has to be deter- 
 mined by a judicial tribunal ; and in such cases, the courts are not 
 usually bound to deliver the child into the custody of any claim- 
 ant, but will exercise a sound discretion in the matter, and leave 
 the child in such custody as may appear best for the child. In 
 cases of controversy between parents for the custody of their minor 
 children, the right of the father is preferred to that of the mother, 
 but the welfare of the child will be the criterion by which the cus- 
 tody is awarded. If the child has arrived at the age of discretion, 
 in ordinary cases upon habeas corpus, the court will permit the 
 child to elect in whose custody it will be placed, although the court 
 will always take care that the custody is not an improper one. If 
 the child is not competent to form a judgment and declare his 
 election, the court, after examination, will exercise its judgment 
 for him. {Matter of Woolstoncraft, 4 Johns. Ch. B. 80. Matter 
 of Waldron, 13 Johns. B. 418. People v. Ohega/ray, 18 Wend. B. 
 637. People y. Ming, G Baa^h. B. 366. Foster y. Alston, 6 How. 
 [Miss^ B. 406. Commonwealth v. AddicTcs, 6 Bin. [Pa.'\ B. 
 520. Ee parte Grouse, 4 Whart. B. 9. United States v. Crreen, 3 
 Mason^s B. 482. WiMesby v. DuTce of Beauford, 2 Buss. B. 1. 
 The State v. Smith, 6 Gre&nleaf's B. 262. People v. Mercem, 
 3 SilVs [iT. 7".] B. 399. Bex v. GreenUU, 6 Nev. d; Man. 
 B. 244.) 
 
 36 
 
282 • LAW OF INFANCY. 
 
 The mode in wliicli courts of common law interfere in questions 
 relating to the custody of infants is by writ of habeas corpus, which 
 " in general, lies to bring up persons who are in custody, and who 
 are alleged not to be legally restrained of their liberty. "When the 
 court clearly perceives that they are illegally detained, it will dis- 
 charge them." {Ex fo/rU Glover, 4 Bowl. P. C. 293. People v. 
 Rose Porter, 1 Duer's R. 709.) On the statutory habeas corpus, 
 the officer cannot interfere with the legal custody, and must dis- 
 miss the writ if it appear that the infant, being too young to choose, 
 is in the keeping of its general guardian. On the common law writ, 
 issued from the supreme court, and on a petition to the supreme 
 court in equity, the interest of the infant will be considered, and 
 the custody given accordingly. {People v. Wilcox, 22 Sari. R. 
 178. Wilcox V. Wilcox, 14 -ZT. Y. R. 675.) 
 
 The distinction between the powers of a court of common law 
 and those of a court of equity in this matter, stated in a few words, 
 is this : the care of the person of the infant to protect it from 
 violence belongs to a court of common law, but the care and- pro- 
 tection of the dnfant for the purpose of education belongs to a 
 court of equity. ( Wdlesly v. Wdlesby, 2 Bligh's JST. S. R. 136. 
 Ex pa/rte Skinner, 9 Moore^s R. 278. And vide Crowley's case, 
 2 JSwanst. R. 1.) 
 
 In the State of New York, the supreme court is the only tribunal 
 which has jurisdiction to entertain the application of a married 
 woman, living apart from her husband without a divorce, for a 
 habeas corpus to have their infant child brought up and its custody 
 awarded to her. {People v. Humphreys, 24 Barb. R. 521.) It 
 seems, however, that this power will not be exercised by the court 
 to give the custody of the child to the mother, in cases of separa- 
 tion of husband and wife, produced by the wife, of her own accord, 
 without justifiable cause, withdrawing herself from the protection 
 of her husband, but only when the separation is in pursuance of a 
 judicial decree or by mutual consent. {Niokerson, relator, 19 Wend. 
 R. 16.) When a child of tender years is brought before the court 
 upon habeas corpus, and the parents, disputing for its custody, are 
 living separate, a summary inquiry into their respective conduct 
 and situation may. be necessary. But if the child is of very tender 
 years, and there are no strong reasons for rejecting the mother's 
 claim, the court will not take it from her. {People v. Mercien, 8 
 Paige's R. 47.) 
 
CUSTODY OF INFANTS. 283 
 
 It has been said that a court of common law is "not bound to 
 deliver an infant over to any body, nor to give it any privilege ;" 
 but, according to a comparatively recent English decision, this 
 doctrine is not quite correct. When a clear right appears, the 
 court feels itself imperatively called upon to enforce that right, and 
 deliver up the infant to the proper and legal custody. {Rex v. Isley, 
 5 Ad. da Ell. B. 441.) And such court will also, like a court of 
 equity, protect infants against moral contamination, arising from a 
 vicious connection formed by either parent, limiting itself, however, 
 to a case where the connection is kept up in the presence of the 
 child. ■ Such is the spirit of aU the leading adjudged cases. " The 
 welfare of the infant is the polar star by which the discretion of 
 the court is to be guided. But the legal rights of the parent or 
 guardian are to be respected. They are founded in nature and 
 wisdom, and are essential to the peace, order, virtue and happiness 
 of society. But they may have been abandoned, transferred or 
 abused." {Murd on Habeas Corpus, 628.) ' 
 
 It frequently happens that the father of an infant, upon the 
 death of its mother, or other event, makes an arrangement by 
 which he gvoes his child to a third person, or relinquishes his 
 custody to it imtil it is of age, upon consideration that the party 
 agrees to adopt the child and care for it as his own ; and then, after 
 the affections of both child and adopted parent become engaged, 
 and a state of things has arisen which cannot be altered without 
 risking the happiness of his child, will attempt to reclaim the 
 custody of the child. In such ■ a case but few rules are found for 
 the government of the courts ; and there are decisions both in Eng- 
 land and this country, to the effect that the father would not be 
 Tjound by such a transaction, and could recover the custody of the 
 chUd, even though the interests of the child had been promoted 
 by the original transfer. But the better opinion is that the father 
 in such a case is not in a position to require the interference of the 
 court, in favor of a controlling legal right on his part, against 
 the rights, such as they are, the feelings and the interest of the 
 other parties. ( Tide Bool v. Gott, 14 Loajo Rep. 269. The State 
 V. Smith, 6 Oreerd. B. 462. McDowle's case, 8 Johns. B. 328. : 
 The Oommomwealth v. Oilkeson, Wallacis \BhiladeVphia\ B. 194. 
 Contra, In re Biroham, 16 Mig. L. amd Bq. B. 221. The State 
 V. Ohver, 1 Harr. IBel.] B. 419. Mayne v. Bredwm, 1 JSal- 
 stead's [if. Ji] Ch. B. 454.) 
 
284 LAW OF INFANCY. 
 
 ITpon this subject, Mr. Hurd says: "It has been seen that a 
 parent may emancipate his minor child by vohmtarily relinquish- 
 ing his claim to the services of the child, or by permitting the child 
 to contract marriage or other relations inconsistent with filial sub- 
 jection, and may also forfeit his right to custody by cruelty or 
 gross neglect of.duty. 
 
 " Why, then, may he not transfer to another this right of custody 
 which he may thus abandon or forfeit, especially where the 
 interests of the child are not prejudiced by the assignment ? And 
 how can the court pronounce that custody, which is held under a 
 fair agreement with the parent, and not injurious to the welfare 
 of the child, to be an illegal restraint ? 
 
 " It is true of this, as of many other questions in Jmheas corpus 
 proceedings, that the authorities do not all speak one opinion." 
 (Hurd on Habeas Corpus, 537.) 
 
 1 188. In the case of illegitimate children, the English decisions 
 are not entirely unanimous with respect to their legal custody 
 while infants. On one occasion, Willes, Ch. J., said he would 
 " give no opinion whether the father has any power over a child who 
 is nullius jUlAus. Grotius says truly^ that the mother is the only 
 certain parent; and an order of justices to remove the mother 
 always removes the child." (JSulland v. Malhin, 2 Wils. B. 
 126.) 
 
 In another case. Lord Kenyon, Oh. J., said, that the putative 
 father of a bastard child had no right to the custody of it. (Rex. 
 V. Saper, 5 Term R. 278.) 
 
 In still another case, the court of common pleas took away an 
 infant illegitimate child from the custody in which it had been 
 placed by its father, although there was no imputation against him, 
 and ordered the child to be delivered to the mother, who was 
 anxious to have it. Sir J. Mansfield, Ch. J., said : " It is not 
 unlikely, indeed, that by granting this application, we niay be 
 doing a great prejudice to the child, but still the mother is entitled 
 to the child if she insists upon it." {Ex parte Knee, 1 Bos. d; Bull. 
 JV. B. 148.) In other cases, however, the English courts seem to 
 recognize the right of a putative father of an infant bastard child . 
 td insist upon having his child given up to him for the purpose of 
 maintaining it. ( Vide Forsyth on Inf. 81-86.) 
 
 But the rule in these cases of illegitimate children is well settled 
 by the courts in this country. The American courts uniformly 
 
CUSTODY OF INFANTS. 285 
 
 hold that the putative father has no right to the custody of the 
 child, as against its mother, and against its consent. The mother, 
 here, is entitled to the custody of her bastard child ; and if the 
 putative father wrongfully and firaudulently obtains possession of 
 the child, and retains such possession until compelled to relinquish 
 it by the court on habeas corpus, an action for false imprisonment 
 will lie against him in the name of the child. {RosaUna v 
 Armstrong, 15 Barb. B. 247.) But if it appears that the child is 
 abused, the court will interfere in its behalf, and direct it, to be 
 placed elsewhere than with the mother, even, who has it in cus- 
 tody, and in all such cases the court will exercise a sound discretion 
 with respect to the custody of the child. The mother is the 
 natural guardian of the child ; is bound to maintain it, and ordi- 
 narily is entitled to the control of it; and when the courts inter- 
 fere, if the child is too young to determine for itself, the court or 
 officer assumes to determine for it where it shall go, and, in doing 
 so, the welfare of the child iS chiefly, if not exclusively, to be had 
 in view. This is the plain doctrine of the courts in the State of 
 New York, and the rule is the same in Massachusetts by express 
 adjudication, and is probably recognized in all of the states. 
 {The JPeqple v. Klmg, 6 B(wb. E. 366. Same v. Lamdt, 2 Johns. 
 H. 375. Ca/rpenter Y.Whdfynan, 15 ib. 2QS. Wright "v. Wright, 2 
 Mass. B. 109. Corrnnonwealth v. Me, 6 Serg. c& BawWa B. 255.) 
 
 The common law never gave to the putative father of an ille- 
 gitimate child any right to its custody, and in general no statute 
 exists securing to him such right. {The People v. Mitchell, 44 
 Barb. B. 245.) 
 
 On the marriage of the mother, the natural guardianship of an 
 illegitimate child devolves on the husband, and then the husband 
 is entitled to the custody. ( Wright v. Wright, supra) But this 
 relation between the husband and child ceases on the dissolution 
 of the marriage by divorce, and the mother's rights and Habilities 
 then revive. {Wright v. Wright, su^ra.) 
 
 The putative father, however, is generally entitled to the custody 
 of the child as against all but the mother or her husband; and if 
 she be dead, and the father a suitable person, the child will be 
 taken from the maternal grandmother and delivered to him; atid 
 if the child be unlawfully taken from him by a stranger, he seems 
 to be entitled to process to regain the custody. {Wright v. Wright, 
 su^a, and Commonweaith v. Anderson, 1 Ashm. [Pa.] B. 56.) 
 
286 LAW OF INFANCY. 
 
 But " the paternal and filial relation, in all its endearing and 
 legal consequences, does not exist between such a father and such 
 a child. The law looks coldly upon this relation, and takes no 
 further care of it than to see that the community is not put to 
 expense. In such a case there seems to he more than a legal doubt 
 who is actually the father, the sworn father being termed merely 
 iluG putative father, while there can be no doubt who is the mother. 
 As the mother is the only parent such a child can have with legal 
 certainty, she is the parent to whom the custody of such a child 
 seems properly to belong." {Matter of Doyle, ClarWs \N. Z".] 
 Ch. E. 154.) Of course, when the bastard is brought before the 
 court on haheas corpus, he has the same liberty of election as to 
 whom he will go, under the same circumstances, and in the same 
 cases, as children born in lawful wedlock. 
 
 § 189. The testamentary or general guardian of the person of an 
 infant is entitled to its custody. The very nature of guardianship, 
 and the relation of guardian and ward, gives the guardian this 
 right. The guardian is placed m loco par ent/ls, dinA as the father 
 is entitled to the custody of his child, so is the guardian of that of 
 his ward ; and he may have the writ of habeas corpus to bring up 
 the person of his ward, under the same circumstances as the father 
 for his child, and courts will be governed by the same principles in 
 determining the question of custody. {Yide Common/wealth v. 
 Hammond, 10 PicTc. {Mass.l B. 274. The State v. Gheesemwn, 2 
 South. \N. </.] E. 445. Eex v. Isley, 31 ETig. O. L. E. 682.) 
 The rights of a testamentary guardian, especially, are always 
 regarded as paramount to those of any one else, the mother, even, 
 having no right to interfere with the discretion of the guardian in 
 respect to the custody and education of his ward. 
 
 On a comparatively late occasion, in the English court of 
 chancery, the law with regard to the conflicting claims of a testa- 
 mentary guardian and a mother was explicitly laid down by Lord 
 Chancellor Cottenham, who said : " It is proper that mothers of 
 children thus circumstanced should know that they have no right, 
 as such, to interfere with testamentary guardians, and if, under the 
 peculiar circumstances, I think it proper now to leave the child in 
 the custody of the mother, it is not in respect of right in that 
 mother, but it is in consequence of that power which the court has 
 of controlling the power of testamentary guardians." {Talbot v. 
 Earl of Sh/rewsbwry, 4 Myl. (Ss Or. E. 683.) This doctrine seems 
 
CUSTODY OF INFANTS. 287 
 
 cruel and harsh in the abstract, but the courts have laid down some 
 wise and humane rules to be observed by the guardian, in respect- 
 ing the vrishes of the mother in the execution of his important and 
 responsible office. As an example, Lord Eldon, in a case before 
 him, said : " In this case, I need not add, that, though the effect 
 of the appointment of a guardian is to commit the custody of the 
 guardianship, this court looks, with great anxiety, to the execution 
 of the duty belonging to the guardian, and the attention expected 
 to be paid to the reasonable wishes of the natural parent. 
 Though it is not necessary in this instance, upon such a contest, it 
 is important to observe that it can never end happily but by 
 implanting in the hearts of the children filial and dutiful feelings 
 toward the parent, the best and most important duty imposed 
 upon the guardian by the deceased parent." (^Ex jpa/rte Earl of 
 IWhester, 7 Yesey's B. 381.) 
 
 "With respect to guardians appointed by the court, it would seem 
 that the same rule will apply in regard to the custody of the ward, 
 and the interference of the court in relation to it, as to that in case 
 of testamentary guardians. {In re Spenoe, 3 JF*Ml. R. 247.) 
 
 The right of a testamentary guardian, however, to the care and 
 custody of his ward, cannot be superseded by the surrogate or 
 probate court, by a new appointment. {The People v. Kearney, 
 31 Barl. E. 430.) 
 
 The right to the guardianship of an infant cannot be tried upon 
 a habeas corjms, and the court of chancery or other court having 
 equity powers, will exercise its discretion in disposing of the cus- 
 tody of the infant, upon the same principles which regulate the 
 exisrcise of a similar discretion by other courts and officers who 
 are authorized to allow the writ in similar cases. {The People v. 
 Mercein, 9 Paige's R. 47.) . 
 
 The principle of res adjvdicata is applicable to proceedings upon 
 habeas corpus to obtain the custody of infant children ; and it 
 makes no difference that one writ was made returnable before a 
 judge at chambers, and the other before a court of record. The 
 decision, however, is an estoppel only so far as to determine the 
 rights of the parties at the time of the proceeding. {Mercein v. 
 People, 25 Wend. P. 64. People v. Mercein, 3 MlVs [iV^. Z.] 
 P. 399.) 
 
 Such are the leading principles relating to the custody of infants 
 as settled by statute and the adjudication of courts ; and they are 
 
288 I>AW OP INFANGT. 
 
 sufficiently clear and explicit to meet every conceivable case. All 
 orders made by any court or judicial officer in relation to the 
 custody of an infant, may be enforced by attachment as for a 
 contempt. 
 
 CHAPTEE XYII. 
 
 MAHSTTENANCE OF rcn?AUTS — ^WHEN TT IS ALLOWED, UPOIT WHAT PEHT- 
 CrPLE, AHD FEOM WHAT FUNDS — SALE OF THE EEAL ESTATE OF 
 INFANTS — THE PE00EEDING8, AND DISPOSITION OF THE PROCEEDS — 
 SPECIFIC PEEFOEMANCE OF THE CONTEAOT OF THE ANCESTOE — CON- 
 VEYANCE BY AN INFANT TEUSTEE. 
 
 § 190. The question of the maintenance and support of the infant 
 is not always free from difficulty and doubt, and yet certain princi- 
 ples and rules, upon the subject, are quite well established by the 
 adjudicated cases and statutes. 
 
 When an infant has property of his own, and his father is dead 
 or not able to support him, he may be maintained out of the 
 income of his property, if his interest in it be absolute, by the per- 
 son in whose hands the property is, or a stranger may maintain 
 him, and a court of equity will allow all payments made for this 
 .purpose, which can be shown to have been proper and reasonable. 
 It is usual' to insert in wills and settlements by which property is 
 given to infants, directing the application of the income of the 
 fund, for their maintenance and education, and sometimes, of the 
 capital, or parts of it, for their advancement, while their interest 
 in the fund is not absolutely vested, and in these cases the direc- 
 tions should be implicitly followed, unless a discretion is given, 
 and then the courts will never interfere, unless the trustees are 
 making a fraudulent or mischievous use of it. But whether the 
 infant is entitled under the instrument or not, trustees and guard- 
 ians may relieve themselves of all responsibility by obtaining the 
 previous sanction of the court for the payments which they propose 
 to make. {McPherson on Inf. 213.) 
 
 A guardian may apply the infant's income to his maintenance, 
 but he does so at his peril, and it is advisable, therefore, to secure 
 the sanction of the court. {Ex paHe Whitefieldj 2 Aik. M. 315.) 
 Courts of equity have a common jurisdiction on the subject of 
 
MAINTENANCE OF INFANTS. 289 
 
 maintenance, besides they have not nnfrequently a special jurisdic- 
 tion Tinder certain statutes, which they exercise on the same princi- 
 ples by which they are guided in ordinary cases. For instance, in 
 England they have a statute which makes it lawful for the court 
 of chancery, or the court of exchequer, to direct, by order, the 
 dividends due, or to become due, in respect of certain stocks stand- 
 ing in the name of an infant, to be paid to the guardian of such 
 infant, or to any other person, according to the discretion of the 
 court, for the maintenance and education, or otherwise, for the 
 benefit of such infants. (1 Wm. IV, ch. 6$.) So, also, by the stat- 
 utes of the State of New York, it is provided that whenever it shall 
 satisfactorily appear to the supreme court, or to the county court 
 of the proper county, that a disposition of any part of the real 
 estate of an infant is necessary and proper for the maintenance 
 and support of the infant, the court may order the sale or other 
 disposition of such real estate ; and from the time of the applica- 
 tion to the court for such sale, the infant is considered a ward of 
 the court so far as relates to such property, its proceeds and income, 
 and the court is required to make order for the application and 
 disposition of the same. (2 R. 8. pwrt 3, Ut. 2, a/rt. 7. 2 Stat, at 
 Large, 202, 213. Code of Procedwre, § 30, sub. 6, Laws of 1847, 
 ch. 280, § 16. Code of Procedwre, % 10.) Other states have similar 
 provisions. \ 
 
 § 191. Generally speaking, the father is bound to maintain his 
 infant child, and no allowance wiU be made to him for this purpose 
 out of his property. Btit if the father is not able to maintaiii his 
 children, the court wiU order maintenance for them out of their 
 own property; and this does not turn upon the question of the 
 father's solvency merely, but whenever he is -not in such circum- 
 stances as to be able to give the child an education suited to the 
 fortune which he enjoys or expects. {McPhersori on Ivf. 220. 
 Buchworth v. Buckworth, 1 Cox's B. 80.) 
 
 Where the father's circun^stances are such as to make , it reason- 
 able to allow maintenance for the children, and it is for their 
 benefit to allow it, and their fortune is of such a nature that 
 maintenance may properly be given out of it, maintenance will be 
 ordered, although the instrument under which the property is held 
 contains no direction for maintenance, or even directs the income to 
 be afccumxdated. {McP/terson on Inf. 223.) But if the father is 
 living, and of sufficient ability to support and educate his child, 
 37 
 
290 LAW OF INFANCY. 
 
 the interest of the child's property cannot he applied for that pur- 
 pose, even though there be a direction in the instrument under 
 which the property is held that such interest shall be so applied, 
 for the reason that such direction is construed to mean that main- 
 tenance shall be allowed out of the fund, if no maintenance is due 
 by law, but not otherwise ; and the court will order the fund to be 
 accumulated till the child attains majority. {Andrews v. Pavtmg- 
 ton, 3 Bro. Ch. Gas. 60. 2 Cox's E. 223. Mundy v. Ewl Howe., 
 4 Bro. Ch. Cas. 224.) 
 
 After the father's death, maintenance will be allowed, without 
 regard- to the ability of the mx)ther, {Lamdy v. Duchess of Athol, 
 2 Atlc. B.' 4,4:7. Ex pa/rte Lord Pei/re, 7 Ves., R. 403. Brasby \. 
 Magratk, 2 Sch. cfe Zef. B. 35.) Where there are equal legacies to 
 a class of children not otherwise provided for, and for whom it 
 would be beneficial that maintenance should be allowed, the court 
 if it can collect before it all the persons who may be entitled to the 
 fund, so as to make each a compensation by the immediate main- 
 tenance given, for the diminution of the fund to which he may 
 eventually become entitled, will maintain them all out of the 
 interest. {Ex pa/rte Kebhle, 11 Yes. B. 606. Errat v. Ba/rlow, 14. 
 ib. 204.) But when the legacy is not given absolutely to the 
 children and the survivor, but there is a gift over to a stranger,- 
 this principle cannot be applied without the consent of the stranger. 
 {Ex pa/rte KebUe, supra.) The decisions are not uniform in the 
 case where' the class of persons beneficially interested is not wholly 
 before the court, as when children unborn may form a part of the 
 same class, although the weight of authority seems to be adverse 
 to the allowance of maintenance in such a case. {McPherson on. 
 Inf. 232, 233, amd authorities cited) 
 
 When a bequest is made to a child, payable at a future day, or 
 for the payment of which no time is specified, and the child has no 
 other provision, the court will allow interest on the fund, by way of 
 maintenance, from the death of the parent. {McPher. on Inf. 234- 
 237.) But though interest is thus given by way of maintenance, the 
 infant has no claim to any interest beyond what the court thinks 
 sufficient for his maintenance. {II. 237.) When a legacy is given 
 which would not, abstracted from the rule in favor of children, 
 carry interest, and an annual sum less than the interest is given 
 for maintenance, the child can have no more, however small the 
 maintenance may be, and however large the legacy ; for the giving 
 
MAINTENANCE OF INFANTS. 291 
 
 an express sum for maintenance bars the presumption tliat an 
 indefinite maintenance was intended. {lb. 238-241.) This shows, 
 after all, that the matter depends almost altogether, if not wholly, 
 upon the intent of the instrument under which the fund may be 
 held. Where a present absolute interest in a fund is given, the 
 court will allow maintenance in the absence of any direction to 
 that effect, and even in disregard of a direction for accumulation ; 
 and if an insufficient sum is given for maintenance, the court will 
 excuse it. It will, in like manner, grant an increase of an insuffi- 
 cient maintenance given by will, whenever maintenance is allow- 
 able upon the principle of compensation, for the principle is 
 wholly unconnected with any supposed intention of the donor. 
 {Ih. 241, 242.) And maintenance will be allowed out of the 
 interest of a legacy where there is a fair inference from the whole 
 of the will, that the testator intended it. {lb.) "When a fund is 
 expressly given to a father for the maintenance of his child, this 
 amounts to a legacy to the father, and of course he is at liberty to 
 appropriate it to the use originally intended by the giver. {Andrews 
 V. Partington, 2 Cox's R. 223. Bobmson v. Tickell, 8 Yes. E. 142. 
 Brown v. Oasamajor, 4 ib. 498.) It was formerly held that a parent 
 ought not to be allowed to determine for himself the question of 
 his ability to maintain his infant children, and that the father 
 would never be allowed for any thing paid without the authority of 
 the court. {Hughes v. Hughes, 1 £rd. Ch. Cases, 387. Hill v. 
 Chapman, 2 t5. 231.) But as the. precedents now stand, the court 
 must look at each case with the view to make such order as the 
 rule prescribed by the giver justifies, and the conduct of the parties 
 allows. {Maberly v. Tuston, 14 Ves. R. 499. Ex parte Barlmg- 
 ton, 1 Ball c& Beat. B. 240.) As an illustration ; when the father 
 of an infant son, having a large estate in England, resided in India 
 and there maintained his son, and incurred a large debt for the 
 purpose, and was vmable longer to maintain him, the court held, 
 that the father having lived out of the country, and being unable 
 to apply to the court before, was a special circumstance which 
 would enable the court to grant the sum required for past main- 
 tenance from the infant's estate. {Carmichael v. Hughes, 6 Eng. ' 
 L. andEq. B. 71.) If a guardian thinks proper to allow the infant 
 more than the maintenance settled by the court, the court will 
 make a reference as to such extra expenditure, but only under 
 special circumstances. {Bamsford v. Freema/n, 1 Cox^s B. 417.) 
 
' 292 LAW OF INFANCY. 
 
 It seems that a liberal allowance will be made for the main- 
 tenance of an infant, with a view to the circumstances of his 
 family. For instanpe, if he is the oldest, and has considerable 
 property, while the others have little or none, the court will give 
 them maintenance, or a part of maintenance, out of his provision, 
 as a part of the maintenance made for him, though to be applied 
 to them, looking upon him as the head of the family, and consid- 
 ering it to be for his benefit, not that this portion of his fortune 
 should be saved, but that by means of it his brothers and sisters 
 should be honorably brought up. And the narrow circumstances 
 of a father, or of a mother, or both, have also been considered in 
 fixing the infant's allowance for maintenance. ( Yide Pierpomt v. 
 Lord Cheney, 1 P. Wms. B. 493. Harvey v. Harvey, 2 ib. 22. 
 Larwy v. Duhe of Athol, 2 Atlc. E. 447. Petre v. Petre, Sib. 511. 
 & pwr-te Pebre, 7 Ves. E. 403. Tweddell v. .Tweddell, Turn. <& 
 Euss. E. 13. Hill V. Chapman, 2 Bro. Ch. Cas. 231. ARen v. 
 Coster, 1 Beam. R. 202.) 
 
 As a general rule, the principal must not be broken in upon for 
 the maintenance of the infant, but the courts will not scruple to 
 do so, even of a legacy not vested, when the legacy is so small that 
 the interest will not suffice to give the infant legatee a competent 
 maintenance and education, or when it will be clearly for his benefit 
 that a sum of money should be raised for that purpose. {Ex parte 
 Green, 1 Jac. da Walk. E. 253. Bx pa/rte Swift, 1 Eyan c& 
 Moody's B. 575. Ha/rvey v. Harvey, 2 P. Wms. E. 23. In re 
 Efnglamd, 1 Buss. & Mylne's R. 499. Clay v. Pennvngton, 8 Sim. 
 E. 359.) Guardians and trustees, however, are not usually per- 
 mitted, of their own authority, to break in upon the capital of 
 sums belonging to an infant, although, if the act appears to the 
 court, on inquiry, to be such as the court would have ordered to 
 be done, the expenditure will be protected by the court. {Car- 
 michael v. Wilson, 3 Moll. R. 84, 88. Walker v. Wetherell, 6 Yes. 
 B. 474.) 
 
 It is a general principle, that acts done by a guardian without 
 
 . authority will be protected, and will bind the infant, if they turn 
 
 out eventually beneficial to the latter ; but the guardian does such 
 
 acts at his own risk. ( Yide Earl of Chesterfields. Cromwell, 1 Ec[. 
 
 M. E. 287. Smith v. Low, 1 Atk. E. 489.) 
 
 As a question of practice, it seems that in an administration suit 
 an inquiry as to the propriety of maintenance to an infant may be 
 
MAINTENANCE OP INFANTS 293 
 
 directed by the decree at the hearing of the ease. {Cross v. Beman, 
 5 Eng. L. and Ec[. B. 129.) And further, that the court may direct 
 a referee to appoint a guardian to an infant, and approve of proper 
 maintenance, to be inserted in the decree upon the hearing of a 
 suit, without any petition for that purpose being presented, {dross 
 V. Brown, 7 Eng. L. and Eg. R. 58.) And, generally, in ordinary 
 cases, when the estate is not large, the court, upon petition, will 
 settle a due maintenance upon the infants. {Ex parte WJiitfield, 2 
 Ath. B. 316. Ex parte Thomas, Ambler's B. 146. Ex parte 
 Kent, 3 Bro. Ch. B. 88. Ex parte Salter, 2 Bich'. R. 769. Ex 
 parte Starhie, 3 Sim. B. 339. Clay y. Bennington, 8 ih. 359.) 
 In regard to this practice. Lord Hardwicke said: "There maybe 
 a great convenience in applications of this kind, because it may 
 be a sort of check upon infants with regard to their behavior ; and 
 it may be an inducement to persons of worth to accept of the 
 guardianship, when they have the sanction of this court for any 
 thing they do on account of maintenance;, and, likewise, of use, 
 in saving the expense of a suit to an infant's estate." {Ex parte 
 WMtfield, supra.) 
 
 Such are the rules respecting the maintenance of infants recog- 
 nized generally by the English courts, and the same principles are 
 usually accepted by the American courts. 
 
 § 192. Some of the adjudged cases in our own country upon the 
 subject of the support and maintenance of infants, will now be 
 briefly referred to ; and sufficient to put the reflecting student in 
 possession of all that is necessary upon the subject. 
 
 In this country, maintenance will be allowediout of the capital 
 of the infant's estate, when the principal is small ; otherwise it 
 must be out of the interest {Matter of Bostwiok, 4 Johns. B. 
 100), thus following the rule laid down in England. 
 
 Where an estate, is given absolutely to a class , of infants with 
 benefit of survivorship, maintenance out of the fund may be 
 allowed to them ; but maintenance cannot be allowed to an infant 
 out of a fund which belongs contingently to others. {Matter of 
 Bamison, 6 Badgers B. 136.) 
 
 Where an estate is devised to an infant, with a limitation over, 
 in case he should die without issue before arriving at the age of 
 twenty-one, the gener?il guardian can, at most, only require of the 
 executor the income for the infant's maintenance and support. 
 {BraMey v. Amidon, 10 Baige^s Ch. B. 235.) ■ 
 
294 LAW OF INFANCY. 
 
 Where tne income ia devised to a female for life, and the prin- 
 cipal, upon her death, to her children surviving her, and the issue 
 of such as have died, maintenance cannot be ordered out of the 
 principal, though the mother consent; for the reason that until 
 the mother's death, it is utterly uncertain who will be entitled 
 to the principal. {Matter of Ryder, 11 Pcdge^s Ch. B. 185.) 
 
 The court will not allow maintenance on behalf of an infant, 
 out of her property, where there is any other sufficient provision or 
 a right to maintenance which can be enforced. It will be refused 
 to the father, where he is of sufficient ability to maintain and bring 
 up his child without it, having reference to her situation and 
 prospects in life, with a due regard to the claims of others upon his 
 bounty. {Matter of Kane, 2 Barb. Ch. R. 375.) But where the 
 children were wealthy, and their father in moderate circumstances, 
 and barely sufficient for the reasonable maintenance of the residue 
 of his family, the court, deeming it promotive of the welfare of 
 thei children that they should live with their parents, ordered the 
 father a much larger allowance for their education and support in 
 his family, including compensation as guardian, than would have 
 been necessary if they were maintained at a boarding-school. 
 {Matter of Burke, 4 Samlford's Ch. R. 617.) It will be recol- 
 lected that this is in accordance with the English practice in such 
 cases. 
 
 Another rule recognized by the courts of this country, which is 
 precisely the same as that in England upon the subject, is that 
 where there is any valid limitation over, however contingent, main- 
 tenance cannot be allowed, unless provided for in the grant or will. 
 Where the fund is given absolutely to a class of infants, with the 
 right of survivorship — that is, where all have an equal chance of 
 surviving, and a present interest — an allowance may be made. 
 If those not m esse may take, as if to children bom and hereafter 
 to be born, or to children ; and in case of death of any before 
 twenty-one, to the issue of the latter, or limited over to strangers, 
 maintenance will be denied. {Matter of Turner, 10 Barb. R. 
 652, 567.) 
 
 It is the primary duty of the general guardian of an infant to 
 provide for its support, maintenance and education. He stands 
 im, loco pa/rentis to his ward, and must therefore provide for him 
 and direct his education. {Clark v. Montgomery, 23 Baal). R. 
 464, 472.) 
 
MAINTENANCE OF INFANTS. 295 
 
 It will be observed tbat the foregoing are confined to cases 
 decided in the courts of New York, but the principles are applica- 
 ble in all of the states. 
 
 In the State of South Carolina, where it appeared that th^ 
 parents of infants were unable to maintain them, the court ordered 
 them to be maintained out of their own property. {Oudmorth v. 
 Thompson, 3 Dessau. B. 258.) But a guardian is not authorized 
 to break in upon the capital of his ward for his maintenance, 
 except imder peculiar circumstances ; should he advance beyond 
 the income, as a general rule, he will not be allowed interest on a 
 balance due for maintenance. {McDowell v. Caldwell, 2 MgOwWs 
 Ch. a. 58. Teagne v. Dendy, lb. 211. J^eet v. Sweet, Speer's 
 JEg. R. 309.) 
 
 A mother who has only a bare competence for herself, and has 
 minor children living with her, who are entitled to large estates, 
 must have an allowance made her by the executor, out of their 
 Estates, &r the maintenance and education, of her daughter, and 
 for the maintenance of her sons; {Haywood v. Cuthbert, 4 Dessau. 
 B. M5.) 
 
 In the State of Iforth Carolina, it has been decided that, as a 
 general rule, a court of equity will not go beyond the income of a 
 ward's estate for his maintenance and education, but that the couTt 
 will apply a part of the capital for putting him out in life, and that, 
 even for maintenance, as a matter of necessity, the capital may be 
 appjied when, from the possession of property, the infant cannot 
 be entitled to maintenance as a pauper, and from mental imbecility, 
 or want of bodily health or strength, he cannot be maintained from 
 the profits of his property, nor put out apprentice and maintained 
 by his master ; that equity has the. power, though it may seldom 
 be willing to exercise it, to take the capital of the ward and apply 
 it for maintenance, either future or past ; and that, in ordinary 
 cases, the court would not relieve a guardian who, without its pre- 
 vious sanction, had made expenditures for the maintenance and 
 education of his ward, beyond the income of the estate, though he 
 might have acted from the best of motives; but that the court 
 will reimburse the guardian out of the estate of the ward, when 
 the expenditures were demanded by such circumstances, amount- 
 ing, indeed, to physical necessity, as would have compelled any 
 court to authorize them without a moment's hesitation. {Long v. 
 Norcom, 2 IreddVs Eg. B. 354.) 
 
29'6 ' LAW OF INFANCY. 
 
 From the authorities cited, it will be seen that there is a uni- 
 formity of doctrine running though all the decisions in this country 
 npon the subject ; and upon examination of the cases, it will be 
 found that the English authorities are often referred to and recog- 
 nized as binding authority herci 
 
 § 193. With, reference to the real estate of an infant, it may be 
 said that neither a court of law nor of equity has any inherent 
 original jurisdiction to direct the sale of it. Lord Chancellor Hart 
 said, in a recent case, "I hare no authority to bind an infant's 
 legal real estate. That was decided, long ago^ by tord Hardwicke, 
 in Taylor v. Phillvps. The chancellor has never since attempted 
 to deal with the legal inheritance of infants without the aid of 
 parliament." {Bussel v. Russel, 1 MoUoy's R. 525.) The juris- 
 diction, therefore, in cases of this kind, rests altogether upon' the 
 statute. Independently of an authority derived from the legis- 
 lature, the court has no right to entertain the question or direct a 
 sale. {Cfcmmstoney. Odimt, ICollyer's M. 511. SogemY.Dilf, 
 6 HiWs [W. T.'\ ^,416, All. ' OnderdonlcY. Mott, 34 Ba/rh. R. 
 106.) By reason of this rule, statutes exist, both in England and 
 in all of the American States, conferring jurisdiction tipon the 
 courts to order the sale and Conveyance of an infant's real estate in 
 the cases specially provided for. Thus, in the State of New Tork, 
 it is declared by statute that iaiay infant seised of any real estate, 
 or entitled to any term of years in any lands, may, by his next 
 friend, or by his guardian, apply to the Supreme couri;, or the 
 county court of the county within which the real estate is situated, 
 for the sale or disposition of his property in the manner directed 
 by such statute. And whenever it shall appear satisfactorily that 
 a disposition of any part of the real estate 'of such iiifant, or of his 
 interest in anjr term for years, is necessary and ' proper, either for 
 the support and maintenance of such infant, ot for his education, 
 or that the interest of such infant requires or Will be substantially 
 promoted by such disposition, on account of any part of his' said 
 property being exposed to waste and dilapidation, or on account of 
 its being wholly unproductive, or for any other peculiar reasons ot 
 circTlmstaHces, the court may order the letting for a term of years, 
 th&'^ale or other disposition of such real estate or interest td be 
 made by a guardito or guardians appointed by such court, in such 
 manner, and with such restrictions, as shall be deemed expedient, 
 though no real estate or term for years can be' sold or disposed of 
 
SALE OF infants' REAL ESTATE. 297 
 
 in any manner against the provisions of any last will, or of any 
 conveyance, by which such estate or term was devised or granted 
 to snch infant. (2 R. S.part3,ck. 1, tit. 2, §§ 170, 175, 176. 2 
 Stat, at Lm-ge, 202, 203. Code of Prooechire, §§ 10, 30, sub. 6. 
 Laws 0/1847, ch. 280, § 16.) 
 
 If the lands proposed to be sold are situated in the city of New 
 York, the application for the sale may be made to the coiu't of 
 common pleas of the city and county of New York ; . or if such 
 premises are situated within the limits of the city of Buffalo, the 
 application may be made to the superior court of that city. {Laws 
 of 1854, ch. 96, § 9, and ch. 198, § 6.) Similar provisions are con- 
 tained in the statutes of all of the states, some providing that the 
 estates of infants may be sold or mortgaged by certain specified 
 courts, as for instance in Pennsylvania, by the orphan's court, for 
 the education and support of subh infants, or for the payment of 
 their debts, or when the property is going to decay or running 
 down ; in others, as in the new State of "West Virginia, wherfe it is 
 provided that the estate of a minor may be sold when his guardian 
 shall think his interest will be promoted thereby, by ah application 
 by the guardian, by petition; to the cu'cuit court of the county in 
 which the estate proposed to be sold, or some part thereof, may be, 
 stating plainly the situation, etc., of the estate, and the facts show- 
 ing the propriety of the sale. At the sale the guardian nor 
 giiardian ad Utem can be a purchaser. A conveyance raay be 
 ordered by the court to be executed by the guardian; No sale can 
 be made against the provisions of any wiU or conveyance by which 
 the estate was devised or granted to the minor. {Loads of 1865, ch. 
 38.) And in others, as in several of the western states,, the estates 
 of infants may be sold for the same purposes and in 'the same 
 manner as is provided in the State of New YorE; but the plan 
 of this work admits of only a statement of some general principles 
 governing such transactions, and does not require the production 
 of the laws of all the states upon the subject. ' 
 
 § 194. Under the statutes of the State of New York, it has been 
 held that it is a sufficient ground to authorize a sale of an infant's 
 real estate that^it is held in common with adults, and that the 
 value of the property is small in comparison with the expense of a 
 partition suit, to which it must otherwise be subjected. {Matter of 
 Congdon, 2 Paiges E. 566.) So, when the situation of the infant, 
 as regards maintenance and education, or other peculiar ciroum- 
 88 
 
"298 • LAW OF INFANCY. 
 
 stances, calls for the special interposition of the court, or tnat the 
 property is exposed to waste and dilapidation, or that it is a village 
 lot which is wholly unproductive, will he sufficient grounds for the 
 exercise of the power of the court to authorize a sale. {Matter of 
 Mason, Hop. Oh. B. 122.) 
 
 To authorize the court to direct a sale of the infant's land, the 
 infant.must he seised of the property. An infant's vested remainder 
 in fee, however, may he sold by order of the court for his benefit ; 
 but whether, if it be subject to open and let in afterborn children, 
 such children will be affected by the sale, is a question not definitely 
 settled. {BaTcer v. Zorillard, 4 iT. Z". B. 257, 266, 267.) But it 
 is not the practice of the court to authorize the sale of a future 
 interest in real estate belonging to infants, except under very 
 special circumstances ; and it is never done for the mere purpose of 
 increasing the income of the adult owner of a present interest in 
 the estate. {Matter of Jones, 2 Ba/rl. Oh. B. 22.) 
 
 When land belonging to four infants was sold under an order 
 recognizing an absolute fee in an undivided fourth part as residing 
 in each, and, on the foreclosure of the mortgage taken by the clerk 
 for the purchase-money, it turned out that each had a vested fee, 
 determinable, however, xipon his dying without issue at the time 
 of his death, whereupon his estate would vest in the survivors, and 
 that one had so died since the sale, the court held, that though the 
 sale might be conclusive as to the pm'chaser's title, it would protect 
 him by retaining the proceeds of such share until proper releases 
 were executed to him, and covenants providing against a similar 
 occurrence. {Damison v. De Freest, 3 Sand. Ch. B. 456.) A sale 
 of real estate devised to an infant, if ordered by the court, con- 
 trary to the provisions of the devise, is utterly void, and passes no 
 title to the purchaser, as contravening the statute upon this subject, 
 even though " the interest of the infant" was promoted thereby. 
 Such cases are expressly excepted from the grant of power, and the 
 court is just as destitute of jurisdiction with respect to them as 
 though no statute existed. {Bogers v. Dill, 6 HUVs B. 415, 417. . 
 And vide Matter of Turner, 10 Barh. B. 553.) 
 
 § 195. In the State of New Jersey it has been held, that the 
 lands of an infant may be sold for his benefit, and the property 
 changed from real to personal, under the authority and direction of 
 the legislature without regard to the interests of personal repre- 
 sentatives ; that the validity of the title under such sale does not 
 
SALE OF INFANTS^ REAL ESTATE. 299 
 
 depend upon the assent of the infant, and that he cannot disafiarm 
 the sale on coming of age ; and further that the authority of the 
 legislature to convert the property of an infant from real to per- 
 sonal cannot be questioned ; and when there is no breach of tnist, 
 or violation of good faith, or sinister design, on the part of the 
 guardian who applies for the law, the act cannot be impeached. 
 
 It was further held, in the same case, that courts of equity may, 
 and frequently do, change the character of property belonging to 
 infants ; and that they will permit guardians or trustees to do it, 
 when it is manifestly for the advantage of the owner, without 
 reference to the contingent interests of real or personal repre- 
 sentatives, and further, that when the property of an infant is 
 changed, by authority of a competent tribunal, from real to per- 
 sonal, it will, upon the death of the infant, go to his personal 
 representatives ; and yet, if there has been a breach of trust, as 
 when the trustee or guardian has abused the trust, and changed 
 the quality of the estate to subserve his own interest, there arises 
 an equity to undo the act in favor of the person whose rights are 
 injured ; but that there is no equity between the personal repre- 
 sentative and the heir as such, because both are volunteers, and 
 each must take what they find at the death of the person entitled 
 for life in the condition in which they find it. {Snowhill v. SnoW' 
 hill, 2 Green's Ch. R. 20.) 
 
 In the State of Virginia, it has been held, that under the stat- 
 utes of the state, the court of chancery may decree a sale of the 
 property of an infant in all cases, when it manifestly appears to be 
 for their interest that such sale shall take place, and that the rights 
 of others will not be violated thereby ; and further, that the court 
 also has power to direct and secure the investment of the fund 
 for the benefit of the infant, in such manner as to the court may 
 seem best. {Ga/rland v. Loving, 1 Band. S. 396.) 
 
 In Ohio, when an administrator, by the advice of the family and 
 friends of an infant heir, receives the rents of the real .estate, 
 and applies them in payment of the debts of, the ancestor's estate, 
 instead of selling the infant's land for that purpose, and the arrange- 
 ment is beneficial to the infant, his administrator cannot afterward 
 recover such rents from the administrator of the ancestor, although 
 the arrangement has the eft'ect to change the distribution of the 
 infant's estate to the extent of the rents so ^applied. {Turpin's 
 Administrator v. Twrpm, 16 Ohio 8. It. 270.) 
 
300 LAW CiF INFANCY. 
 
 § 190. With respect to the proceedings to procure the sale of an 
 infant's real estate, they are a.lways regulated by* statute and the 
 rules of the courts. Thus, in the State of New York, it is pro- 
 vided by statute that, upon the application to the court for the;sale 
 or other disposition of the real estate of an infant, the court shall 
 appoint one or more suitable persons guardians of such infant, in 
 relation to the proceedings on such application, who must give 
 bond to the infant, to be filed with the clerk of the court,, in such 
 penalty, with such sureties, and in such form, as the court shall 
 direct, conditioned for the faithful performance of the trust 
 imposed, for the paying over, investing and accounting for all 
 moneys that shall be received iby such guardians, according to the 
 order of any court having authority to give directions in the prem- 
 ises, and for the observance of the orders and directions of the 
 court, in relation to the said trust ; and upon the filing of such 
 bond, the court is authorized ;to proceed in a summary manner, by 
 reference to a referee, to inquire into the merits, of such applica- 
 tion. (2 B. S. pwrt 3,ck. 1, tit. 2, §§ 171, 1^2, 174. 2 Stca. at 
 La/rge, 202, 203.) 
 
 By the rules of the com't, it is provided that an infant, by his 
 general guardian, if he has any, and if there is none, by his next 
 friend, may present a petition, stating the age and residence of the 
 infant, the situation and value of his real and personal estatej 
 the situation, vahie and annual income of the real estate proposed 
 to be sold, and the particular reasons which render a sale of the 
 premises necessary and proper ; and praying that a guardian may 
 be appointed to sell the same. The petition must also state the 
 name and residence, of . the person proposed as such guardian, 
 the relationship, if any, which he bears to the infent, and the 
 security proposed to be given; and the petition must be accom- 
 panied by aifidavits of disinterested persons, or other proofs, verify- 
 ing the material facts and circumstances alleged in the petition, 
 and if the infant is of the age of fourteen, he is required to join 
 in the petition. (/Swp. Cowt Eules, No. 66.) The rules of the 
 supreme court govern the county courts in proceedings relating to 
 the sale of infant's estate. {(3ode of Procedure, § 470.) 
 , "When severaL infants are interested in the same premises as 
 tenants in common, the application in behalf of all must be joined 
 in the same petitiony although they may have several general 
 guardians. (/Swp. Court Jiules, No. 69.) 
 
SALE OF infants' SEAL ESTATE. 301 
 
 If tlie infant is over fourteen, and l-esides out of the state, his 
 signature to the petition will be dispensed with. {Edwards on 
 Referees, 398.) If the infant has no general guardian, that fact 
 ought to be stated in the petition. {Matter of Lansmg, 3 P'aigis 
 B. 265.) 
 
 The application, if made to the supreme court, must be made at 
 special term, and the proceedings cannot be entertained at cham- 
 bers. "Sound policy requires that the supreme court, like the 
 temple of Janus, should sometimes be shut, and that its business 
 should be done at regular terms, and that the public hare prior 
 notice of its sittings." {Matter of Boohhart, 21 . Bwrb. B. 348, 
 351.) The same rule applies when the application is made to the 
 court of common pleas of the city and county of New York, or to 
 the superior court of the city of Buffalo. 
 
 If the application is made to the county court, the same may be 
 made in term, or to the judge at chambers, as the county court is 
 always open for the transaction of any business for which no 
 notice is required to be given to an opposing party. {Code of Pro- 
 cedure, § 31.) 
 
 The application is always ex parte, and the petition should be 
 addressed to tlie proper court. {Matter of Boohkart, supra.) 
 
 § 197. The statute above cited provides that the court shall 
 appoint one or more suitable persons guardians in relation to the 
 proceedings, and the court has further provided by rule that " if it 
 satisfactorily appears. that there is reasonable ground for the appli- 
 cation, an order may be entered appointing a guardian for the pur- 
 poses of the application, on his executing and filing with the clerk 
 the requisite security, approved of as to its form and manner of 
 execution, by a justice of the court or a county judge, signified by 
 his approbation indorsed thereon, and directing a referee to ascer- 
 tain the truth of the facts stated in the petition, and whether a sale 
 of the premises or any, and what part thereof, would be beneficial 
 to the infant, and the particular reasons therefor ; and to ascertain 
 the value of the property proposed to be sold, and of each separate 
 lot or parcel thereof, and the terms and conditions on which it 
 should be sold ; and whether the infant is in absolute need of any, 
 and what part, of the proceeds of the sale for his support and main- 
 tenance, over and above the income thereof, and his other property, 
 together with what he might earn by his own exertions. And if /i 
 there is any person entitled to dower in the premises, who is will- 
 
302 LAW OF INFANCY 
 
 ing to join in the sale, also to ascertain the value of her life estate 
 in the premises, on the principle of life annuities. But no proceed- 
 ings shall he had upon such reference until the guardian produces 
 a certificate of the clerk, that the requisite security has been duly 
 proved or acknowledged, and filed agreeably to the order of the 
 court, and which certificate shall contain the name of the oflScer by 
 whom it was approved, and shall be annexed to the report." (Sup. 
 Court Rules, No. 67.) 
 
 "With respect to the special guardian, it has been held, that a part 
 owner of the property who is also a creditor against the infant's 
 share, ought not to be appointed, however responsible and correct 
 his general conduct may be. {Matter of Tillotsons, 2 Ednjo. Ch. R. 
 113.) The court will usually appoint the general guardian of the 
 infant the special guardian in these cases, and another person 
 will not be appointed without some special reason shown to the 
 court. {Matter of Wilson, 2 Paige's R. 412.) A husband cannot 
 be appointed the special guardian to sell the estate of his infant 
 wife, though a third pei-son may be appointed with the consent of 
 the husband, to join with him in the sale. {Matter of Lansing, 3 
 Paige's Ch. R. 265.) The statute with respect to security by the 
 guardian, is imperative, and cannot therefore be dispensed with, 
 and the rule provides that it must be proved or acknowledged in 
 the same manner as deeds of real estate, and the sureties are 
 required to justify in the usual form. {Sup. Court Rules, Wos. 6, 67.) 
 It has been held, that when a piece of real estate was ordered to be 
 sold for the benefit of ji/oe infant children, and the guardian gave 
 to each infant a separate bond, under the rules of the court, with 
 the same sureties, who justified in each case according to the penalty 
 in each bond being difierent in amount, such justification was 
 not in accordance with the spirit of the rules, although it might con- 
 form to the letter. The sureties being the same in each case, they 
 should have justified in respect to their ability, as to the aggregate 
 penalties of the several bonds. {Anonymous, 4 How. Pr. R. 414.) 
 
 § 198. The referee is required to ascertain the truth of all the 
 matters stated in the rule, and make his report to the court. He 
 should take testimony as to facts, either by reference to the petition 
 or otherwise. He does not take down the testimony at length, but 
 he must examine witnesses as to the facts required to be ascer- 
 tained, and not rely upon the petition for proof of the facts, and 
 the result should be stated in the report, together with a statement 
 
SALS OF infants' HEAL ESTATE. 303 
 
 of the particular reasons which, in his opinion, render a sale neces- 
 sary or proper. {iSup. Court Rules, Wo. 67. And vide Matter of 
 Morrell, 4 Paige's B. 44.) If the referee reports in favor of the 
 application, the court will next order the guardian to contract for 
 the sale or other disposition of the property, upon terms at least as 
 favorable as those specified in the report. After the special 
 guardian has made the agreement for the sale or other disposition 
 of the property, in pursuance of the order, he must report the same 
 to the court under oath, whereupon, if satisfactory, the court will 
 grant an order confirming the report and authorizing a conveyance 
 to be executed, under the direction of the court, on the purchaser 
 complying with the terms of the contract of sale. All sales, leases, 
 dispositions and conveyances, made in good faith by the guardian, 
 in pursuance of such orders, when so confirmed, will be valid and 
 effectual, as if made by such infant when of full age. (2 M. 8. 
 paH 3, ch. 1, tit. 2, §§ 1Y5, ITY, 178. 2 Stat, at La/rge, 203.) 
 
 The special guardian cannot have an order requiring the pur- 
 chaser to take the property, without showing a legal or equitable 
 and binding contract ; and it has been held that a special guardian 
 who sells property of an infant, under an order of court, should 
 enter into a written contract with the purchaser, subject to the 
 ratification of the court, specifying therein the terms and con- 
 ditions of the sale, and the manner in which the purchase-money 
 is to be secured, and the time of payment. And the written con- 
 tract should be signed by the special guardian and by the purchaser, 
 so as to prevent any dispute as to the terms and conditions of the 
 sale. {Matter of Hazan'd, 9 Paige^s B. 365.) 
 
 The order confirming the report of the special guardian of his 
 agreement to sell, must also direct with respect to the application 
 and disposition of the proceeds of the property, and the investment 
 of the surplus belonging to the infant, so as to secure the same for 
 his benefit, and must direct a return of such investment and dispo- 
 sition to be made on oath, as soon as may be, and must require 
 accounts to be rendered periodically by any guardian or other per- 
 son who may be entrusted with the disposition of the income of 
 such proceeds. (2 B. 8. pa/rt 3, ch. 1, tit. 2, § 179. 2 Stat, at La/rge 
 203, 204.) The sale, however, will in no case give to the infant any 
 other or greater interest or estate in the proceeds of such sale, than 
 he had in the estate so sold, but the proceeds will be deemed real 
 estate of the same nature as the property sold.' {11. § 180.) The 
 
304: LAW OF INFANCY. 
 
 statute further provides, that if the real estate of the infant shall 
 be Subject to dower, and the doweress shall consent in writing to 
 accept a gross sum in lieu of such dower, or the permanent invest- 
 ment of a reasonable sum, in such manner as that the interest 
 thereof be made payable to the doweress during life, the court may 
 direct the payment of such sum in gross, or the investment of such 
 sum as shall be deemed reasonable, and shall be acceptable to the 
 doweress in manner aforesaid, and the sum so paid or invested 
 must be taken out of the proceeds of the sale; but before any such 
 sum shall be paid or invested, the court must be satisfied that an 
 effectual release of such right of dower has been executed. {Ih. 
 §§ 181, 182.) The direction with respect to dower should be con- 
 tained in the order confirming the guardian's agreement to sell. 
 In case a mortgage is given to secure the purchase-money or any 
 part of it, it should be taken' in the name of the treasurer of the 
 county in which the sale is ordered, or such other county treasurer 
 as the court shall indicate ; or the mortgage may run to the gen- 
 ; eral or special guardian of the infant, if the court so direct. {Laws 
 0/1848, ch. 277, §§ 1, 8. Sup. Cov/rl Bules, No. 81.) The mort- 
 gage would be valid if taken directly to the infant himself. 
 
 § 199. The conveyance will be executed to the purchaser by the 
 special guardian, and in making the conveyance he must follow 
 strictly the order of the court directing it. When the order 
 directed infants to convey all their interest in certain real estate, 
 the deed to be executed by their guardian obd litem, in the name of 
 the infants; it was held that a deed, reciting the appointment 
 of the special guardian^ in which the infants were named as parties 
 of the first part, without the guardian's name being mentioned, and 
 which was executed and acknowledged by the infants, and by their 
 special guardian in fact, but with-out any addition to his signature 
 indicating the character in which he executed it, was not pursuant 
 to the order, or one which the purchaser was bound to accept. 
 The guardian should execute the deed by subscribing the name of 
 the infant, and adding "by A B, his special guardian." It was 
 further held in the same case, that if the order merely directs ,the 
 infants to convey their interest, personal covenants vested in the 
 deed executed on their behalf, are void. {Hyatt Y.,Seeley, 11 N. 
 Y. B. 52. Matter of Windle, 2 Edw. Ch. R. 585.) But it has 
 been held by the, supreme court, at general term, in a case not 
 reported, that where the county court ordered a sale of the infant's 
 
SALU OF INFAXfTS' REAL ESTATE. 305 
 
 real estate, and directed the special guardian to contract therefor, 
 and he contracted in his own name as special guardian, which the 
 court approved and directed him to convey, the deed executed by 
 him in his own name, as special guardian, and not purporting to-be 
 made by the infant by him as such guardian, was duly executed. 
 It was further held that in such a case the conveyance is by the 
 court, and the guardian, in executing it, acts only as its officer, like 
 the sheriff, or a master in chancery, in conveying upon other judi- 
 cial sales. {My v. Lesshr, Oct. Oen. Term, 1858, not reported.) 
 
 § 200. An order of the court authorizing and directing the sale 
 of an infant's real estate, fraudulently obtained, is of no validity 
 whatever, and the order, and all of the proceedings founded 
 thereon, for the purpose of obtaining the title of the infants to such 
 real estate, will be annulled, vacated and set aside, whenever 
 such fraud is made to appear. Eraud not only vitiates all sales 
 and conveyances into which it enters, but the power and authority 
 to Sell and convey, also, from whatever source derived. An order 
 giving a party authority to sell and convey, fraudulently obtained 
 from a court, is no better than a power fraudulently derived from 
 the party whose rights are injuriously affected by it. It may also 
 be annulled at the instance of the party making the sale, upon 
 establishing the fraud, at least as to all persons who were parties 
 or privies to such fraud. {Clark v Underwood, 11 Barb. R. 202.) 
 
 A court of equity will not compel an unwilling purchaser in 
 these cases to take a doubtful title. At Ioajo, when a party seeks 
 to disaffirm and rescind a contract of sale, and to recover back the 
 deposit of his purchase-money, on the ground of a defective title, 
 he must satisfy the court that the title is ahsolutely bad before he 
 can recover ; but the court, in the exercise of its equity powers, 
 may give relief in case of a doubtful title. {O^BeiUy v. King, 28 
 J3<no. Pr. B. 408. Vide Pitcher v. Coster, 4 8am,d. Ck B. 1.) 
 
 An objection that the special guardian of the infant entered into a 
 contract of sale conjointly with the adult owners, and that the 
 deed tendered to the plaintiff was, in like manner, executed by 
 the guardian with the other owners, will not be regarded. That 
 other 'parties, owning other interests, joined in the same contract 
 and deed, could not deprive either instrument of its binding effect 
 upon all parties concerned. {O'Beilly v. King, supra.) The 
 statute providing for the sale or other disposition of the real estate 
 of infants by the courts, applies only to cases in which the legal 
 39 
 
306 .LAW OF INFANCY. 
 
 title is in the infants, tlioiigli courts of equity have inherent juris- 
 diction, independently of statute, to order a sale of the eqidtable 
 estates of infants. ( Wood v. Mather, 38 BcM-i. E. 473.) "When 
 infants hold land as tenants in common, determinable as to each 
 on his death without issue, and his interest, upon such contingency, 
 to go to the survivors, and, on the proper application, the court 
 directs the sale of the land, it will be deemed that the court 
 intended that the whole title should be acquired by the purchaser, 
 and on any of the proceeds coming within the control of the court, 
 it will require the infants, on coming of age, to convey to the pur- 
 chaser, as a condition of receiving such proceeds. {Damson v. 
 Be Freest, 3 Scmd. Ch. R. 456.) 
 
 § 201. The proceeds of the sale of the real estate of an infan' 
 under an order of the court are to be deemed real estate by the 
 statute, and if the infant be a feme-covert, the money cannot be 
 paid to her husband on her petition ; but on her coming of age, it 
 may be paid to him on their petition, if the court is satisfied upon 
 a private examination of her, apart from her husband, that she 
 signed the petition voluntarily, without any fear or compulsion of 
 her husband, and adheres to its prayer. {Matter of Finch, ClarTis 
 Ch. B. 538.) 
 
 In another similar case, in the supreme court, it was held that, 
 by the sale of the land under the direction of the court, there was 
 no conversion of the real estate into personalty, but that the pro- 
 ceeds were impressed with the same real uses which attached to the 
 real estate before the sale ; and that such proceeds descended, as 
 the real estate would have done, to the heirs at law of the infant, 
 and did not go to her personal representatives, for distribution 
 among the next of kin and others entitled thereto. {Shwmway v. 
 Cooper, 16 Barh. B. 556.) But the court of appeals have held 
 that the statute does not permanently impress the character of 
 realty upon the proceeds of the sale ; upon the infant's coming of 
 age, he becomes capable of controlling and disposing of such proceeds 
 and if he takes the control of the bond and mortgage given on the 
 eale of his land while an infant, such bond and mortgage will be 
 deemed personal property. {Foremam v. Ma/rsh, UN. Y. R. 544.) 
 If the proceeds of the sale exceed five hundred dollars, and the 
 guardian has not given security by mortgage upon real estate, he 
 must bring the proceeds into court, or invest the same under the 
 direction of the court for the use of the infant ; and the guardian 
 
SALE OF INFANTS^ SEAL ESTATE. 307 
 
 "will only be entitled to receive so mucli of the interest or increase 
 thereof from time to time, as may be necessary for the support and 
 maintenance of the infant, without the order of the court. {Sup. 
 Court Rules, No. 69.) "When the money is brought into court, it 
 must be paid over to the treasurer of the county in vifhich the sale 
 was ordered ; or, if the sale was ordered in the city of New York, 
 the money must be paid over to the chamberlain of the city. 
 {Laws 0/1848, ch. 277, § 1.) 
 
 No moneys arising from the sale of the real estate of an infant 
 must be paid over to his general guardians, except so much thereof 
 of the interest or income from time to time as may be necessary 
 for his support or maintenance, unless such guardian has previously 
 given sufficient security on unencumbered real estate to account 
 to the infant for the same, in the usual form. {Sup. Gowt Rules, 
 No. 62. And vide Laws of 1848, oh. 277, § 8.) The costs of the 
 proceedings are to be paid out of the proceeds of the sale ; and these 
 costs are to be allowed by the court. If the infant's interest in 
 the property sold does not exceed one thousand dollars, the whole 
 costs, including disbursements, cannot exceed twenty-five dollars. 
 {Sup. Court Rules, No. 69.) If the interest in the property exceeds 
 five hundred dollars, the costs may be allowed according to the 
 rate for similar services in civil actions. Laws of 1854, ch. 
 270, § 3.) 
 
 § 202. According to the old practice, when the sale has been 
 consummated by the payment of the purchase-money and the 
 delivery of the deed to the purchaser, the guardian should make 
 his final report to the court, stating the facts of the execution and 
 delivery of the conveyance, the payment of the purchase-money, 
 and the disposition of the same, and the deductions made from the 
 proceeds of the sale for costs, all in a plain, business-like manner ; 
 on which the court will grant an order confirming the report and 
 the sale and conveyance, and the disposition of the proceeds. (2 
 Barb. Oh. Pr. 217.) This is not required by any statute, or 
 express rule of court, but in analogy to similar proceedings in a 
 court of equity, it is safer to make the report and obtain such 
 order. 
 
 All the proceedings in the cases of special guardianship to sell 
 infant's estates must be filed in the office of the clerk where the 
 order of appointment of the guardian was entered. {Matter of 
 Seamcm, 2 Paiges B. 409.) 
 
308 LAW OF INFANCY. 
 
 % 203, In the State of Kentucky, a guardian applying to the 
 circuit court for an order to sell the real estate of infants, is 
 required by statute to give bond for the faithful performance of 
 the trust, before the decree is rendered ; also, to report his pro- 
 ceedings under the decree to the court. The proceeds of the sale 
 in such cases, are to be disposed of for the benefit of the infants, 
 according to the order of the- court decreeing the sale, and not 
 otherwise. ( Wmlock v. Wmloch, 1 Dana? 8 R. 382.) 
 
 In the State of North Carolina, the proceeds of land sold for 
 partition under the statute, to which an infant is entitled, remain 
 real estate until the infant comes of age, and elects to take them as 
 money; and if the infant be a female and marry, and her guardian, 
 to whom the proceeds of such sale had been paid by order of the 
 court of equity, pay the same to her husband, upon her death,' 
 they will descend as land to her real representatives, and this, 
 whether she married and died before or after she became of age ; 
 if in the latter case, she never elected herself while sole to take 
 such proceeds as money, nor consented in the manner provided by 
 law after marriage, that her husband should so take them. (/SbwB 
 V. Jernigan, 2 Dev. <& Bolt. R. 144.) 
 
 In the State of Massachusetts, it has been held that if a guard- 
 ian, who has obtained license to sell the real estate of his ward, 
 purchases the same himself, either directly or indirectly, the sale is 
 voidable only by the ward, and as against the guardian, or a pur- 
 chaser claiming under hiin with knowledge of the circumstances 
 of the sale; but not as against one to whom, before it is so 
 avoided, he conveys or mortgages the estate for a valuable con- 
 sideration, and without notice that it had been bought at the 
 guardian's sale for the guardian's benefit. ( Wymom v. Huston, 3 
 QroAJ's R. 141.) 
 
 § 204. In the State of New York, the statute also provides that 
 the supreme court may decree and compel a specific performance, 
 by any infant heir or other person, of any bargain, contract or 
 agreement made by any party who may die before the performance 
 thereof, on petition of the executors or administrators of the estate 
 of the deceased, or of any person or persons interested in such bar- 
 gain, contract or agreement, and on hearing all parties concerned, 
 and being satisfied that the specific performance of such bargain, 
 contract or agreenient ought to be decreed or compelled. (2 R. S. 
 2?aH 3, ch. 1, Ut. 2, § 169. 2 Stat, at La/rge, 202.) The county 
 
SALE OF INFANTS^ SEAL ESTATE. 309 
 
 court also has jurisdiction in these cases. {Code of Prooedv^e, 
 % 30, suh. 1.) 
 
 It has been held, under this statute, that the infant heir will not 
 be compelled, in the conveyance, to enter into personal covenants, 
 in ptu'suance of an agreement made by an ancestor ; but the heir 
 can be compelled to convey, in pursuance of such contract, although 
 the heir is not named in- the contract. {Sill v. JRessegien, 11 
 Barb. JR. 162. Matter of JEUison, 2- Johns. Ch. E. 20.) It has 
 also been held that •where a bill, for a specific performance pf a 
 contract, is filed against the heir of the party who made the con- 
 tract, and such heir is a lupatic, neither the lunatic nor his estate 
 can be charged with the costs of the suit ; and, in no case, will the 
 heir be charged with such costs, where no application had been 
 made to him to carry into effect the contract, previous to filing the 
 bill, and there has been no refusal or neglect on the part of the 
 heir to execute the contract. {Bwari/wout v. Burr, 1 Barb. M. 495.) 
 
 The proceedings in these cases are similar to the proceedings in 
 cases of applications to sell an infant's real estate, and it is, there- 
 fore, unnecessary to give the particulars here. 
 
 § 205. The statute of the State of New Tork also provides that 
 whenever any infant shall be seised or possessed of any lands, tene- 
 ments or hereditaments, by way of mortgage, or in trust only for 
 others, the supreme court, on the petition of the guardian of such 
 infant, or of any person in any way interested, may compel such 
 infant to convey and assure such lands, tenements and heredita- 
 ments to any other person, in such manner as the said court 
 shall direct, , (2 B. 8. pa/rt 3, ch. 1, in,t. 2, § 167. 2 Stat, at La/rge, 
 202.) 
 
 In cases under this statute the court will appoint some proper 
 person to execute a legal conveyance. {De Ba/rwnte v. Oott, 6 
 Ba/rb. R. 492.) And all of the proceedings are similar to those ia 
 applications for the sale of an infant's real estate, and the practice 
 need not be repeated here. 
 
 In all of these cases the application is regarded as a special pro- 
 ceeding, within section eleven of the Code of Procedure, and an 
 appeal may therefore be taken from the order therein to the 
 general term of the supreme court, if made at a special term or by 
 the county court ; and from the decision at general term an appeal 
 may be taken to the court of appeals. {Hyatt v. Sedey, 11 N. Y, 
 B. 52. LoAJos of 1857, ch. 723, § 19.) 
 
310 LAW OF INFANCY. 
 
 The costs of the appeal, in these cases of special proceedings, are 
 in the discretion of the court, and are governed by the Code of 
 Procedure. {The People v. Stwrt&omt, 9 How. Pr. B. 304. The 
 People y. CoTbome, 20 *5, 378.) 
 
 This brings us naturally to the conclusion of the treatise upon 
 the subject of infants. It is presumed that the survey here given 
 will enable the attentive student to determine the law applicable 
 to every case of infancy which may arise in his practice. 
 
PART II. 
 
 THE LAW OF COVERTURE. 
 
 CHAPTER XVIII. 
 
 THE COMMON LA"W DOCTEnSTE OF COVEETCTEE — THE GENEEAL DISABILnT 
 OP THE WIFE — ^MUTUAL DISABILmES INCroENT TO THE MAEEIAGE 
 UNION. 
 
 § 206. The subject of coverture is becoming more aud more 
 important, and the rights of married women are becoming more 
 and more a subject of inquiry. In all heathen nations woman is 
 the ignorant slave or the degraded plaything of the man, regarded 
 by him as fit only for the lowest drudgeries, and to minister to his 
 sensual passions and pleasures. In Christian nations she is the 
 companion of man, and considered his equal ; aud, in many of 
 the States, she is recognized as a being in every respect worthy to 
 share with man the highest culture, and to enjoy equally with him 
 the rights of property. The legislation of the country has under- 
 gone a great change upon this subject within the last fifty years, 
 and not only are laws passed to secure to married women the con- 
 trol and disposition of their property, but the question is seriously 
 agitated, both here and in England,- whether the elective franchise 
 ought not to be extended to women equally with men ; and, upon 
 purely abstract principles, much is said in favor of the proposition. 
 It is probable, however, that the " merely natural reasons, such as 
 difference of sex," will prevail against any abstract principle, and 
 that some time will yet ensue before i/rue women will claim the 
 right of suffrage for themselves. Nature seems to have assigned to 
 females a more limited sphere of action than to males, and hence 
 they may very properly be excluded from a participation in public 
 affairs. But the law of coverture is becoming a very interesting 
 and important branch of English and American jurisprudence, and 
 makes a very prominent and extensive article in the codes of all 
 civilized nations. 
 
312 . LAW OF COVERTUBE. 
 
 § 207. The word coverture, in law, signifies the state of a married 
 woman, for the reason that she has always been regarded as under 
 the cover or the power of her husband, and, because she should 
 always be under his wing and, protection. A married woman, 
 therefore, is called, in law-French, a feme-covert foemima viro 
 coopeHa. The origin of this term is not certain. Among the 
 ancient Eomans the modesty of the bride was so much consulted 
 that, upon the delicate occasion of her nuptials, she was led to the 
 home of her husband covered with a veil ; and it is quite probable 
 that the term originated in this custom. But whatever the origin 
 of the term, time out of memory the condition of woman during 
 her marriage has been called her covertfu/re. By the marriage the 
 husband and wife are one person in law, and upon this principle of 
 a union of person depend almost all the legal rights, duties and 
 disabilities that either husband or wife acquire by the marriage. 
 For this reason a husband cannot, by any conveyance at common 
 law, give an estate or grant any thing to his wife, or enter into 
 covenant with her ; for the grant would be to suppose her separate 
 existence, and to covenant with her would be only to covenant with 
 himself; and what is true of the husband in this respect is also 
 true of the wife. Neither husband nor wife can contract with the 
 other at conunon law, although each may enter into covenant or 
 contract for the benefit of the other through the intervention of a 
 trustee ; and some of the transactions between husband and wife 
 may be supported by a court of equity. It may also be laid down 
 as a general proposition that all compacts made between husband 
 and wife when single are nullified by the intermarriage. Thus, at 
 law, if a man make a bond or contract to a woman before 
 marriage, and they afterward marry, the bond or contract is dis- 
 charged ; or if two men make a bond or contract to a woman, and 
 one of them marries her, the bond or contract is discharged. 
 ( Vide 1 Black. Com. 442, n. 40.) There are, however, covenants 
 and contracts by a man with a woman which are not destroyed by 
 their marriage, and these will be noted hereafter. 
 
 § 208. At common law the personal existence of a married woman, 
 for most purposes, is merged in that of her husband ; and, especially 
 in matters of contract, she is subject to a greater disability than 
 infants. This was not the fact among the Anglo-Saxons, but such 
 has been the rule ever since the adoption of the feudal system. The 
 rule " that the husband and the wife are in law but one person," 
 
DISAJBILirr OF THE WIFE. 313 
 
 did not exist in the enlightened system of Koman jurisprudence, 
 from which the common law has derived the most durahle as well 
 as the most valuable of its rules and maxims, nor has it ever pre- 
 vailed in other countries, wh^re the law as a science has been 
 studied as profoundly, and interpreted as comprehensively, as by 
 the jurists of England. In all these countries the husband and 
 wife are considered as two distinct persons, and may have separate 
 estates, contracts, debts and injuries, and may also by agreement 
 with each other have a community of interest. 
 
 Dr. Hartley, a metaphysician of the last century, who wrote a 
 book of some. reputation, entitled " Observations upon Man," sup- 
 ports the maxim of the English law, that man and wife are to be 
 regarded as but one person, by the broad declaration that the 
 authority of the man over the wife is but a mark of our degenerate 
 state, by reason of which dominion must be placed somewhere, and 
 therefore in the man. {Gould v. Gould, 29 Sow. Pr. R. 463, dis- 
 senting opinion of Judge J)aly.) " The wife was precluded from 
 the enjoyment of property, for whatever belonged to her while 
 single, or came to her while covert, passed absolutely to the 
 husband, or fell under his dominion. In vulgar phrase, what was 
 hers became his, and what was his remained his own ; she could 
 possess nothing to her separate use ; she could alienate nothing in 
 her life-time ; she could bequeath nothing by her death." {Mao- 
 queen on Husband and Wife, 283.) 
 
 The contracts of infants, as we have seen, are, for the most part, 
 only voidable, while those of married women are, with few excep- 
 tions, absolutely void. But the disabilities incident to infancy and 
 coverture, arise on grounds very different from each other. Those 
 attached to infancy are designed as a protection for the inex- 
 perienced against the fraudulent ; while those incident to coverture 
 are the simple consequence of the authority which the law recog- 
 nizes in the husband. The law regards it as necessary for the 
 preservation of peace, that when two or more persons are destined 
 to pass their lives together, one should possess the pre-eminence, in 
 order to prevent or terminate disputes ; and the reason why this 
 pre-eminence is vested in .the man is, because he is the stronger, 
 and it was also supposed that the man, by his education and manner 
 of life, acquires more experience, more aptitude for business, "and 
 more judgment, than the woman. Of course there are exceptions 
 in this respect, but the law designs to keep in view the ordinary 
 40 
 
31A LAW OF COVEETUBK 
 
 course of tMngs, and those who would entirely abrogate this rule, 
 unwittingly hold out to the woman a dangerous snare. It is con- 
 ceded that the rule of the common law is in many respects cruel 
 and oppressive, and not in accordance with the existing state of 
 society; but in making the changes that are at present going on, 
 great caution is needed, " in order to improve and liberalize the 
 marital relation, without inflicting upon it great injury.?' (1 Par- 
 sons on Con. 284.) 
 
 §209. Says Sir Thomas Smith: "The naturalist and first con- 
 junction of two toward the making a further society of continu- 
 ance, is of the husband and wife, each having care of the family; 
 the man to get, to travel abroad, and to defend; the wife to save, 
 to stay at home, and to distribute that which is gotten, for the 
 nurture of the children and family; which to maintain, God has 
 given the man greater vrit, better strength, better courage, to 
 compel the woman to obey, by reason or force ; and to the woman, 
 beauty, fair countenance, and sweet words, to make the man obey 
 her again for love. Thus each obeys and commands the other; 
 and they two together rule the house, so long as they remaia in 
 one." {Smith's Commonwealth of Englamd, hook 1, ch. 2.) 
 
 The great apostle to the Gentiles, in his reference to the sacred 
 relation of husband and wife, exhorts the wife to be subject to her 
 own husband for her good ; and to render this submission more 
 easy, beneficial and comfortable, the husband is commanded to 
 love his wife, with that tender, constant, faithful and compassionate 
 affection which Christ showed to his church, saying : " So ought 
 men to love their wives as their own bodies;" adding: "he that 
 loveth his wife, loveth himself." {Ephesia/ns, ch. 5, verses 22, 25, 28.) 
 Here is declared the true effect which should follow the union of 
 husband and wife as one person, according to the principle of the 
 common law, which is recognized by the codes of all Christian and 
 civilized nations. 
 
 § 210. In treating further of the powers and faculties which the 
 policy of the common law withholds from married women, it may 
 be asserted that every agreement entered into by a married woman, 
 especially while living with her husband, without the express or 
 implied consent of her husband, is absolutely void ( Worthmgton 
 V. Toimg, 6 Ohio B. 313) ; nor can a married woman, at common 
 law, be sued for any cause whatever, without her husband be 
 joined with her in the process. 
 
DISABILITY OF THE WIFE. 315 
 
 At common law, the separate deed of a married woman convey- 
 ing her real estate is void ; and this is the rule, though she has 
 received the full consideration for the land conveyed, and the pro- 
 ceeds were actually necessary Jfor her maintenance and support- 
 {Stoops V. Blackford, 27 Penn. B. 213. Richards v. McOhlland, 
 29 *6. 385.) So, also, a feme-covert is incapable of making a 
 contract that can be enforced in any manner against her. Her 
 disability in this respect, though like that of an infant, is even more 
 complete. {Keen v. Hatman, 48 P&nn. B. 497, 499.) 
 
 A deed of the wife's land, executed by both husband and wife, 
 but not delivered during her life-time, cannot be rendered effectual 
 to pass the estate as against the heirs of the wife, by a delivery 
 after her decease. {Schoenierger's Ews. v. Zodk, 34 Pennsylvania 
 R. 24.) 
 
 The wife may join with her husband in the execution of a deed 
 of real estate in the manner pointed out by statute ; but at com- 
 mon law, if such a deed be defective, it cannot be rectified as to 
 the wife. {Carr \.Willia/ms, 10 Ohio B. 305. Pur cell v. Gor- 
 ham,, 17 i5. 105.) But now, by an express enactment of the Ohio 
 . legislature, such a deed may be corrected on application to the 
 court. {Oorham v. Pwrcdl, 11 Ohio St. R. 641.) 
 
 In order that the wife may be bound by her deeds or her con- 
 tracts, she must in all cases pursue the course pointed out by the 
 statute, {Needles v. Needles, 7 Ohio St. R. 432.) And a deed 
 not in accordance with the statute is a nuTMty, and, as a contract 
 for a conveyance, it is alike null and void. {Miller v. Sine, 13 
 Ohio St. R. 566.) 
 
 A feme-ccmert is incapable of executing a power of attorney, 
 but her husband may appear and act for her in any case in which 
 she may be heard without a power of attorney. {Morris v. Gar- 
 rison, 27 Penn. R. 226.) 
 
 Indeed, by the principles of the common law, a feme-covert, in 
 general, can do no act to bind herself; she is said to be sub potes- 
 tate viri, and subject to his will and control. Her acts are not like 
 those of infants, and some other disabled persons, voidable only; 
 but are, in general, absolutely void al mitio. { Vide Elliott v. 
 Pdrsol, 1 Peters' R. 338.) 
 
 It has been held that a married woman's bond cannot be made 
 good by the fact that she represented herself to be single, and 
 thereby obtained the consideration. In giving the opinion of the 
 
316 LAW OF COVERTUBE. 
 
 court, the judge made the following quotation : "If a legal inca- 
 pacity can be removed by a fraudulent representation of capacity, 
 then the legal incapacity would have only a moral bond or force, 
 which is absurd." {Keen v. Colemcm, 39 Penn. R. 299.) 
 
 A feme-covert cannot assign a mortgage executed to her, or 
 pledge it for the payment of her husband's debts, unless her hus- 
 band join with her in the assignment or pledge. {Stoops v. BZach- 
 ford, 27 Penn. R 213, S. C. 1 PMla. R. 563.) Neither can she 
 bind herself at common law by her promissory note, and her note 
 is not made valid by the statutes of Pennsylvania enlarging the 
 powers of married women. {Inhoff v. Brovm, 3 PhUa. R. 45, 
 Vide also Griffith v. Clarice, 18 Md. R. 457. Van Steenhwrgh v. 
 Hoffman, 15 Boa-I. A 28.) 
 
 It has been held, even, that a feme-covert living separate, and 
 apart from her husband, and having a separate maintenance secured 
 to her by deed, cannot contract, or be sued as a feme-sole. {Ma/r- 
 shall V. Rutton, 8 Term R. 545. Beard v. Wdib, 2 Bos. & PvU. 
 R. 93.) And again, where a wife had been living apart from her 
 husband, but both husband and wife lived within the same state, 
 for about two years, when she gave a note as feme-sole to a man 
 who knew the fact ©f her marriage, in an action to recover the 
 amount of the note of the wife, it was held to be error in the court 
 to instruct the jury that the proof of coverture was no defense to 
 this action, on the note. {Paimter v. Weaiherford, 1 Greene's 
 [^Towa'] R. 97.) At common law, a married woman has no power 
 to bind herself by contract, or to acquire to herself and for her 
 own benefit any rights, by any contract made with her; and so 
 strongly does this rule prevail, that the wife may avail herself of 
 her coverture to defeat a contract, though she have been guilty 
 of fraud. {Kem, v. Coleman, 39 Penn. R. 299. Damervpmi v. 
 WUsm, 4 Camp. R. 26.) 
 
 By statute the wife may, in conjunction with her husband, and 
 on due examination before a compet^it officer, convey her real 
 estate or any existing or contingent future interest in it ; and, by 
 the statute of some states, she may convey her lands without the 
 concurrence of her husband; but her deed in no instance can 
 operate as an estoppel to her subsequently acquired, interest in the 
 same land, nor will she be bound by her covenants of warranty. 
 {Jackson v. Van Derheyden, 17 Johns. [W. Z.] B. 167. Teal v. 
 Woodworth, 3 Paige^s Ch. R. 470. Carpenter v. Sehemerham, 3 
 
DISABILITT OF TSE WIFE. 817 
 
 Barb. Oh. B. 314. Domimck v. Michael, 4 Sanaf. Ch. JS. 374, 
 423.) In one case, however, in tlie supreme court of the State of 
 New York, a jiidge at special term has intimated that a feme- 
 covert may be estopped by her fraud, saying : " A married woman 
 can no more be allowed to commit a fraud than a single woman ; 
 her deed is not valid unless when relating to real estate and duly 
 acknowledged, but she is liable for torts committed by her, and is 
 competent to know the difference between fraud and honesty, and 
 to understand the obligation not to stand by and allow another to 
 f)urchase from her, who supposes she has a perfect title when she 
 knows she has not." {Mount v. Morton, 20 Barb. B. 123, 131.) 
 But this does not purport to overthrow the doctrine of the other 
 authorities, and the rule may still be regarded as well settled, that 
 a married woman is not bound by her covenants of warranty, and 
 her deed cannot be used to estop her from claiming a subsequently 
 acquired interest in the lands conveyed. Nor does the acceptance 
 of a deed by a feme-covert estop her from setting up a prior title 
 in herself. ( Jizolcson v. Carey, 16 Johns. B. 302. But vide Bill 
 V. West, 8 Ohio B. 222.) 
 
 A feme-covert, by the principles of the common law, is not only 
 incapable of conveying her real estate by deed, but she cannot, as a* 
 general rule, make a valid contract of any description in relation 
 either to real or personal property. This disability results from 
 the nature of the matrimonial connection. {Ma/rtim, v. JDivelly, 6 
 Wend. B. 9, 13.) Neither can a married woman state an account 
 of a debt contracted before marriage, and her promise after mar- 
 riage to pay such debt is absolutely void. {Morris v. Norfolk, 
 1 Tmmt. B. 212.) So, if a married woman execute and deliver 
 a deed to a person as an escrow, and the husband die, and then 
 the grantor perform the condition upon which the person to whom 
 the deed was delivered gives it to the grantee as the woman's deed, 
 it is void ; because the instrument receives its inception from the 
 first delivery and its completion upon the performance of the con- 
 dition ; and the second delivery is merely the execution and 
 consummation of the first ; so that, the grantor or donor, being 
 under, the disability of coverture at the time of the first delivery 
 of the deed, the subsequent death of the husband before the com- 
 pliance of the grantor or donor with the terms of it, will not 
 remedy the original defect. (2 BrigMs Huslamd and Wife, 38, 
 amd a/uthorities cited.) 
 
318 LAW OF COVERTXmM. 
 
 If the wife purehaBe an estate without her husband's knowledge 
 and he afterward disagree to it, he may recover the purchase- 
 money from the vendor in an action of trover. {Oramhy v. ATkn, 
 1 LA. Raym. B. 224.) And for the husband's protection also, the 
 law incapacitates the wife to receive or dispose of money without 
 his concurrence. Accordingly, payment of a legacy bequeathed 
 to her personally, and not given to her separate use, will be a void 
 payment as to her husband. {Palmer v. Trevor, 1 Vem. B. 261. 
 Morris v. Sendngway, 1 Sagg. Eool. B. 5.) And for a similar 
 reason, the law disables the wife, without her husband, to suspend, 
 alter, or release any debt made payable to herself generally, or 
 to give, indorse or assign a promissory note or other security. 
 {Bawlinson v. Stone, 3 Wils. B. 5. Brovm v. Benson, 3 EasCs 
 B. 331.) 
 
 In the case of Brown v. Benson, Lord EUenborough, Ch. J., after 
 speaking of certain acts implying a recognition of the authority of 
 the wife sufficient to found an assumpsit against the husband, ia a 
 given case, says : " But that will not affect this question as to the 
 general authority of a wife to bind her husband in a case where no 
 particular authority can be implied. For this purpose she is 
 no more than a servant, unless acting with a special authority; 
 and it might as well be contended that if a man sent his servant to 
 receive his money of a banker, the servant might release the debt ;" 
 and Le Blanc, J., said : " It might as well be contended that the 
 wife has authority to pay her husband's debts with her husband's 
 money." This was a case where a bond was given to the husband, 
 conditioned to pay to his wife an annuity, and soon after the date 
 of the bond the husband, being in embarrassed circumstances, left 
 the country, and, while the husband was absent, the obligors agreed 
 with the wife that she should give up five years' annuity, and con- 
 sider it paid for that period, in satisfaction of money advanced on 
 the bond, and the court held that the agreement was not binding. 
 
 Upon the same principle of protection to the husband and wife, 
 a feme-Govert is not permitted, at common law, to take upon her- 
 self the office and responsibility of an executrix or administratrix 
 without the husband's concurrence ; nor will payments made to her, 
 as executrix or administratrix, without his consent, be valid. 
 {Anonymous, 1 Salh. B. 280. Bvhlens v. Hardy, 3 Curt. B. 50.) 
 This is the rule at common law, but, in many of the states, married 
 women are authorized by statute to serve as executors and admin- 
 
DISABILITY OF THE WIFE. 319 
 
 istrators, in some instances, the same as s. feme-sole, and, in others, 
 there are certain qualifications attached. 
 
 § 211. By the common law a feme-Govert is not qualified to hold 
 or possess any chattels personal, choses in action, or chattels real, 
 and marriage operates as an absolute gift to the hushand of all 
 property coming under that description which was owned by the 
 wife at the time of the marriage ; and the husband takes the same 
 interest at common law in personal chattels which come into hi^ 
 wife's possession in her own right during coverture, whether by 
 gift or bequest, or in any other way; and the husband is also 
 entitled to all sums of money which his wife earns by her personal 
 skill or labor, and these he has absolutely and in his own right, 
 and not in hers ; and if he die without having recovered them, they 
 do not survive to her, but they pass as assets to his administrators 
 or executors. And if it be necessary to sue for them during the 
 coverture, the action must be brought in the name of the husband 
 alone, without joining the wife. {Buchley v. Collier, 1 8alh. JS. 
 Hi. Glover v. Proprietors . of Drury Lome, 2 GhiUy's B. 117. 
 Washburn v. Hale, 10 Pick. E. 429. Prescott v. Brown, 23 
 Maine B. 305. Vide also Legg v. Legg, 8 Mass. R. 99. Howes v. 
 Bigdow, 13 ib. 384. Wvnslow v. Crocker, 17 Maine B. 29. 
 Merrill v. Smith, 37 ih. 394. HasMns v. Miller, 2 Bev. B. 360. 
 Hyde v. Stone, 9 Cow. B. 230. Morgan v. Thames Bank, 14 Conn. 
 B. 99. Matter of Gramt, 2 Story''s B. 312. Hawkins v. Craig, 6 
 Mon. B. 257.) And the rule has been carried to the extent that, 
 notwithstanding the husband lives apart from his wife, and in a 
 state of adultery, his right to the personal property of his wife 
 stiU remains so long as the marital relation exists. {Eussell v. 
 Brooke, 7 Pick. B. 65. Twrtle v. Mvmcy, 2 J. J. Ma/rsh. R. 82.) 
 
 In one case, where the parties lived apart under an agreement 
 of separation, the wife saved something out of the weekly allow- 
 ance which the husband gave her for her maintenance and support. 
 The court held that the money saved belonged to the husband. 
 {Messenger v. Clwrk, 6 Eoach. B. 388.) 
 
 But the husband's interest in and rights over the personal prop- 
 erty of the wife will be treated of hereafter. It may be observed 
 that the incapabilities oi femes-covert provided by the common 
 law apply to their civil rights, and are for their protection and 
 interest. But they do not reach their political rights, or prevent 
 their acquiring or losing a national character. Their political 
 
320 ZAW OF COVERTURE. 
 
 rights do not stand on the mere footing of municipal law, applicable 
 to ordinary transactions, but stand upon the more general prin- 
 ciples of the law of nations. {Shanks v. Dupont, 3 Peter's R. 
 242.) The disabilities of the wife referred to all exist at common 
 law, and they are especially arbitrary with respect to her deeds and 
 contracts touching her own property. Whether the disability in 
 these cases is regarded as having its reason on the principle that 
 the separate legal existeiice of the wife is suspended during the 
 marriage, or in the fact that the influence of the husband may be 
 improperly exerted for the purpose of inducing the wife to part 
 with her interest in his favor, is perhaps immaterial. The rule 
 itself is one of undoubted authority. ( Vide Ca/rr v. WUlicmis, 10 
 Ohio R. 310.) 
 
 A confession of judgment, without action, by a feme-covert, is 
 void, although the consideration be money borrowed for and 
 applied to the improvement of her separate estate. If husband 
 and wife unite in confessing a judgment, the judgment may be 
 retained as against the husband, though void as to the wife. ( Watr 
 Tcms V. Abrahams, 24 N. T. R. 72.) 
 
 In the State of Pennsylvania,|however, it has been held that a 
 married woman may confess a judgment for the purchase-money 
 of real estate, but that execution will be confined to the real estate 
 purchased. {Patterson v. Rdbi/nson, 3 Am. Imajo B. 240.) And, 
 further, that such a judgment is invalid as a personal obligation, 
 but it constitutes a valid lien upon the premises purchased. 
 {Ra/mherger's Adminisirator v. Ingraha/m, 38 Penn. R. 146.) A 
 feme-covert may satisfy a judgment given to her while sole. 
 {JSckert V. Lewis, 17 Leg. Int. 156.) 
 
 § 212. But there are, also, disabilities incident to the marriage 
 union, which apply to both husband and wife. "We have seen that 
 the husband and wife cannot enter into any contracts or covenants 
 with each other during coverture, nor will any sale or gift from 
 one to the other be recognized by the law, for the simple reason 
 that the husband and wife constitute but one person. It is also 
 well settled, by the comnion law, that husband and wife cannot be 
 witnesses for or against each other in a civil suit. {Macondry v. 
 Woff'dle, 26 Boff'l. R. 612.) This principle is founded not only on 
 the interest of the parties being one, but also on public policy. 
 The rule is so inviolable, at common law, that the parties cannot 
 be permitted to give testimony for or against each other, even 
 
MVTTTAL DISABILITIES. 321 
 
 tliOTigh the individuals interested in the particular litigation should 
 all consent to it. {The Kwig v. Clmiger, 2 Tenn Bt 263.) There 
 are, however, exceptions to the rule, as in cases of personal vio- 
 lence inflicted by one upon the other, v^here, from the necessity of 
 the case, the aggrieved party will he permitted to testify to the 
 acts of violence by the husband or wife; and, it is believed,, that, 
 in criminal prosecutions, the admissibility of the husband or wife 
 must be confined to cases seeking security of the peace, and cases 
 of personal violence. {State v. BurUnghcmi, 23 Shej>; [Me.] H. 
 104. The People v. Carpenter, 9 Barh. \N. Z".] B. 580. The 
 People V. Ohegaa«y, 18 Wend. B. 637.) 
 
 In a case in the State of Tennessee, where two persons were 
 jointly indicted for murder, one as principal, and the other as aid- 
 ing and abetting, and separate trials were had, the wife of the 
 second was offered as a witness for the first, and held competent. 
 ( WorTcTTien v. State, 4 Sneed^s B. 425.) [And in a case in the court 
 of appeals of the State of New York it was held that the testimony 
 of the wife of an accomplice may be taken into consideration in 
 determining the credibility of the testimony of the husband. 
 {Haskins v. The People, 18 iV. Y. P. 344.) It has been said that 
 the confirmation of the husband, in such a case, is really no con- 
 firmation at all, because the wife and the accomplice must be 
 taken, in law, as but one person {Bex v. I^eal, 32 Eng^ O. L. B^ 
 481) ; but this will not exclude the testimony of the wife, in such a 
 case, from being taken into consideration by the jury. It was stated 
 by the great Mansfield that there had never been an instance, in a 
 civil or criminal case, where a husband or wife had been permitted 
 to give testimony for or against each other, except in those cases 
 wha:e, for security of the peace, ex necessitate, the rule had been 
 departed fi-om. {Beniley v. Cooh, 3 Doug. B. 422.) And Lord 
 Alvanley declared, in a case before him, that a witness should; not 
 be permitted to give evidence against her former husband, as to 
 any thing which occm-red during the existence of the marriage 
 relation, although she had been divorced, by act of parliament, 
 before she was examined as a witness, {Monro v. Twistleton, 
 Peals' Add. Cases, 219.) 
 
 In a case in the late court of chancery of the State of New Tork^ 
 
 the chancellor (Walworth) said : " The general rule that a wife 
 
 cannot be admitted as a witness for or against her husband, either 
 
 in criminal or civil proceedings, is well settled in that country from 
 
 41 
 
322 LAW OF COVERTURE. 
 
 ■wMch tlie common law of this state is derived, and sucli is, 
 unquestionably, the general rule of law here. The rule is founded 
 upon a principle of public policy, which forbids that the peace and 
 happiness of the married relation should be disturbed by arraying 
 the wife against her husband as a witness, where his interest is 
 concerned as a party in opposition to her testimony ; or that he 
 should be tempted to pervert the truth, by being called as a wit- 
 ness in his favor, where the intimate relation whicli does or should 
 always subsist between them, renders her interests and his nearly 
 identical. She is also prohibited from being a witness against him, 
 upon the principle that the happiness of the married relation 
 requires that perfect confidence should subsist- between the hus- 
 band and wife, so that he may freely communicate with her in 
 relation to his business, and to all the various transactions of his 
 life, in the full assurance that she can never afterward be com- 
 pelled or even permitted to give evidence against him, to his 
 injury, as to any matters thus communicated." {The People v. 
 Mercem, 8 Paige^s Ch. B. 47, 50.) This was said with respect to 
 the testimony of the wife for or against her husband, and the role 
 is as sacred with respect to the testimony of the husband for or 
 against his wife. 
 
 Mr. Phillipps, in his standard treatise on evidence, lays down the 
 law on the subject thus : " This general rule of evidence, which 
 has been adopted for the purpose of promoting a perfect union of 
 interests, and of securing mutual confidence, is so strictly observed, 
 that even after a dissolution of marriage for adultery, the wife is 
 not admitted to give any evidence of what occurred during the 
 marriage, which would have been excluded if the marriage had 
 continued. Tl^is, as Lord EUenborough has said, is on the ground 
 that the confidence which subsisted between them at the time, 
 shall not be violated in consequence of any future separation. Thus 
 one great cause of distrust is removed, by making the confidence 
 which once subsists, ever afterwards inviolable in courts of law." 
 a PMl. Pk. 83.) 
 
 Professor Greenleaf, in his excellent treatise on evidence, says : 
 " The rule by which parties are excluded from being witnesses for 
 themselves, applies to the case of husband and wife; neither of 
 them being admissible as a witness in a cause, civil or criminal, in 
 which the other is a party. This exclusion is founded partly od 
 the identity of their legal rights and interests, and partly on princi- 
 
MUTUAL DISABILITIES. 323 
 
 pies of public policy, which lie at the basis of civil society. For it 
 is essential to the happiness of social life, that the confidence sub- 
 sisting between husband and wife should be sacredly protected and 
 cherished in its most unlimited extent ; and to break down or 
 impair the great principles which protect the sanctities of that 
 relation, would be to destroy the best solace of human existence." 
 (1 Oreml. Eo. % 334.) 
 
 Professor Greenleaf says again : " Neither is it material, that 
 this relation no longer exists. The great object of the rule is to 
 secure domestic happiness, by placing the protecting seal of the 
 law upon all confidential communications between husband and 
 wife ; and whatever has come to the knowledge of either by means 
 of the hallowed confidence which that relation inspires, cannot 
 be afterward divulged in testimony, even though the other party 
 be no longer living." (1 Greenl. Eo. § 337, referrmg to Stem v. 
 Bowmcm, 13 Peter's R 209.) 
 
 And once again : " Whether the rule may be relaxed so as to 
 admit the wife to testify against the husband, ly Ids consent, the 
 authorities are not agreed. Lord Hardwicke was of opinion that 
 she was not admissible, even with the husband's consent ; and this 
 opinion has been followed in this country ; apparently upon the 
 ground that the interest of the husband in preserving the confi- 
 dence reposed in her is not the sole foundation of the rule, the 
 public having also an interest in the preservation of domestic 
 peace, which might be disturbed by her testimony, notwithstand- 
 ing his consent. The very great temptation to perjury, in such 
 case, is not to be overlooked." (1 Greenl. Ev. § 340.) 
 
 Even after the parties have been divorced a vinculo matrimomi, 
 the husband and wife will not be permitted to take the stand as a 
 witness for or against each other, and disclose any of the transac- 
 tions which passed between them while the marriage relation 
 existed, because this would clearly impair that mutual confidence 
 between husband and wife, which society requires, and which the 
 law designs to protect. If the rule were otherwise, it has been 
 well said, that designing men might even become instrumental in 
 producing a divorce, for the very purpose of using the testimony 
 of the husband or wife to penetrate the secret afiairs of the other. 
 The only safe and correct practice is, to adhere to the rule, that 
 whatever passes between husband and wife in confidence, shall 
 forever remain sacred. ( Vide Barnes v. Comach, 1 Bwrl). B. 392, 
 
324 LAW OF COVERTURE. 
 
 396. Smith v. Smith, 15 Eow. Pr. B. 165. State v. Phelps, 2 
 TyWs [ 7^.] E. 374.) 
 
 § 213. As has teen stiggested, there are exceptions to the rule at 
 common law, that neither husband nor wife can testify for or 
 against each other, but these exceptions are usually admitted from 
 the necessity of the case, to prevent an entire failure of justice. 
 These exceptions, however, are never allowed to interfere with the 
 general doctrine that trust and confidence between husband and 
 wife shall not be betrayed. Thus, in one case the dying declara- 
 tions of a wife were admitted against the husband in an action 
 upon a policy of insurance on the life of the wife, respecting her 
 health at the time the insurance was efiected. Lord JEUenborough 
 explaining : " No confidence has been violated ; nothing extracted • 
 from the bosom of the wife which was confided there by the 
 husband ; but the question being, what was the state of her own 
 health at a certain period, a witness has been received to relate 
 that which has always been received from patients to explain, her 
 own account of the cause of her being found in bed at an unrea- 
 sonable hour with the appearance of being ill. She was questioned 
 as to her bodily infirmity. She said it was of some duration, 
 several days." And again: " The admission then of the evidence in 
 this case is free from, any imputation of breaking in upon the con- 
 fidence subsisting between man and wife ; the declaration was upon 
 the subject of her own health at the time, which is a fact of which 
 her own declaration is evidence, and that too made unawares before 
 she could contrive any answer for her own advantage and that of 
 her husband." And Grose, J., in explanation said : " In strictness 
 Buch declarations are admissible not so much as evidence of con- 
 fession of the wife against her husband, as of the actual state of 
 her health in her own opinion at the time." {Aveson v. Kinnairi, 
 6 EasCa B. 188.) ^ 
 
 And in a still earlier case, which was an action by the husband 
 and wife for wounding the wife. Lord Chief Justice Holt allowed 
 what the wife said immediately upon the hurt received, and before 
 she had time to devise any thing for her own advantage, to be given 
 in evidence as part of the res gestae ; and it was supposed that the 
 evidence admitted in the case of Aveson v. Kinnaird fell within 
 the principle of the case of Lord Holt. {Thompson v. Trevannion, 
 Skm. B. 402.) 
 
MUTUAL DISABILITIES. 325 
 
 After the death of the husband, the testimony of the ■widow to 
 facts within her own knowledge, not derived from the hushand, is 
 competent to show that a conveyance by the husband was made to 
 defraud his creditors. {Short v. Tmsley, 1 Metoalfs {Ky.'X R. 397.) 
 And in an action against an administrator for work and labor per- 
 formed for the intestate, the widow of the intestate is a competent 
 witness for the plaintiff, to prove the performance of the work and 
 labor, when her testimony is not a disclosure of her husband's con- 
 versations or admissions, nor of matters the knowledge of which 
 was acquired by her in conjugal confidence, nor of matters preju- 
 dicial to her husband's reputation. {Stdber's Adrnir. '^. McOarter, 
 4 Ohio St. R. 513. NeiVs Adm/r. v. Cherry, 3 West. Law Monthly, 
 31. Cooh V. Grange, 18 Ohio R. 526.) 
 
 When the husband has expressly or impliedly made his wife his 
 agent, her declarations vidth regard to the matters within the scope 
 of her authority, are admissible evidence against him. (RiUy v. 
 Suydam,, 40 Barl). R. 222. Oasteel v. Oasteel, '& Black. \Ind^ R. 
 240.) 
 
 In an action against husband and wife for a debt due by the 
 wife dMin sola, the plaintiff cannot prove admissions made by 
 the wife during coverture respecting the debt. {Brown v. Lassdle, 
 6 Black. [Ind.l R. 147. Brovm v. Brown, 8 ib. 221. Ross v. 
 Wirmers, 1 Hoist. \N. J.I R. 366.) And the declarations of 
 either husband or wife are not generally evidence against the other. 
 {Johmson v. Sherwvn, 3 Gray's \Mass.\ R. 374. Za/yGrae v. Peter- 
 son, 2 Sand. [_S. C] R. 388. Beam v. WhiU, 7 Term B. 108. 
 Twrner v. Cove, 5 Conn. R. 93. Zogan v. lAnk, 4 E. D. SrmtNs 
 R. 63.) If, however, the action is brought by the husband to 
 recover for the services of his wife, her declarations may be given 
 in evidence during service as to the terms of her employment. 
 {Hackmam, v. Ferry, 16 Perm. R. 196.) 
 
 But the policy of the common law rule, that husband and wife 
 cannot be witnesses for or against each other, has been very much 
 questioned ; and now, by the statutes of England, and of many of 
 the American StateSj the testimony of husband and wife ds admis- 
 sible in many cases in which it was excluded by the rule of the 
 common law. 
 
 Thus, in the State of New York, it is provided that in any trial 
 or inquiry in any suit, action or proceeding, in any court, or before 
 any person having by law or consent of parties authority to 
 
326 ZAW OF COVERTUBE. 
 
 examine witneBses or hear evidence, the husband or wife of any 
 party thereto, or of any person in whose behalf any snch suit, 
 action or proceeding is brought, prosecuted, opposed or defended, 
 shall be competent and compellable to give evidence, the same as 
 any other witness, on behalf of any party to such suit, action or 
 proceeding ; except that neither husband nor wife can give evidence 
 for or against each other in any criminal action or proceeding, or 
 in any action or proceeding instituted in consequence of adultery, 
 or in any proceeding for divorce on account of adultery, except to 
 prove the fact of marriage in cases of bigamy and charges of 
 adultery ; nor can either testify for or against the other in any 
 action or proceeding for or on account of criminal conversation ; 
 and in no case can husband or wife be compelled to disclose any 
 confidential communication made by one to the other during their 
 marriage. {Laws of 1867, ch. 887.) 
 
 § 214. In the State of California it is provided that a husband 
 shall not be a witness for or against his wife, nor a wife a witness 
 for br against her husband ; nor can either, during the marriage or 
 afterward, be, without the consent of the other, examined as to 
 any communication made by one to the other during the marriage. 
 This exception, however, is declared not to apply to an action or 
 proceeding by one against the other. {Wood^s Dig. 1860, art. 
 1129.) 
 
 There does not seem to be any reported decision at the present 
 time (1867) giving a construction to this provision of the California 
 statute ; but it does not in words change or modify the common law 
 rule upon the subject of the competency of husband and wife as 
 witnesses for or against each other ; and yet it may be inferred 
 from the language of the statute that the husband and wife may 
 by consent disclose any confidential communications between them 
 during coverture; and that they may also testify for or against 
 each other gerierally in an action or proceeding by one against the 
 other. It is generally held, however, that in a matter so important 
 to the peace and good order of families and the general policy of 
 society, the common law rule upon the subject will not be regarded 
 ^s changed except by express enactment. 
 
 In the State of Iowa, it is provided that the husband or wife 
 shall in no case be a witness for or against the other, except in a 
 criminal proceeding for a crime committed by one against the 
 other, or in a civil action or proceeding of one against the other ;, 
 
MUTUAL DISABILITIES. 327 
 
 but they may in all criminal prosecutions be witnesses for each 
 other. Neither husband nor wife, however, can be examined in 
 any case as to any communication made by the one to the other 
 while married ; nor can they, after the marriage relation ceases, be 
 permitted to reveal in testimony any such communication made 
 while the marriage subsisted. {R&o. Laws of 1860, pa/rt 3, ch. 
 159, §§ 3983, 3984.) 
 
 In Kansas it is declared by statute that husband a,nd wife are 
 incompetent to testify for or against each other, or concerning any 
 communication made by one to the other during the marriage, 
 whether called as a witness while that relation ejdsted or afterward ; 
 provided that when a suit is brought by or against husband or 
 wife in his or her own right, and the other is joined as a mere 
 nominal party, the party personally interested in the suit may be a 
 witness upon the trial of the case. {Comp. La/ms of 1862, cA. 30, 
 
 §4.) 
 
 In the State of Minnesota it is provided that neither husband 
 nor wife shall be examined as a witness for or against the other 
 without the consent of each other, nor can either be permitted, 
 during the marriage or afterward, without the consent of the other, 
 to testify as to any communication made by one to the other during 
 the marriage, although this exception is declared not to apply to a 
 civil action or proceeding by ■ one against the other, nor to a 
 criminal action or proceeding for a crime committed by one .against 
 the other. {Gen. Stat. 1858, ch. 84, § 53, ml. 1.) 
 
 In Mississippi, the statute provides that in criminal cases, 
 husband and wife shall be competent vsitnessess for each other. 
 {B. 8. 0/1867, ch. 61, art. 193.) 
 
 In the new State of Nebraska, husband and wife are incompetent 
 by statute to testify concerning any communication made by one 
 to the other during the marriage, whether called as a witness while 
 that relation subsists, or afterward, nor can they be examined or 
 be permitted to reveal any such cummunicatibn in any case ; as 
 they can in no case be witnesses for or against each other, except 
 in a criminal proceeding for a crime by the one against the other, 
 but they may in all criminal prosecutions be witnesses for each 
 other. {B. S. 1866, tit. 10, §§ 328, 3Sl, 332.) 
 
 In the State of Ohio, the statute provides that husband and wife 
 are incompetent to testify for or against each other, or concerning 
 any communication made by one to the other, during the marriage, 
 
328 ' LAW OP COVEBTUSE. 
 
 whether called as a witnesB while that relation subsisted or after- 
 ward, except in actions where the wife, were she a/em^-so^, would 
 be plaintiff or defendant ; in which action the wife may testify. 
 Either the husband or wife may testify, but not both. (2 M. S. 
 ch. 87, § 314, sul. 3. Vide also Mad River and Lake Erie E. E. 
 Go. V. Fultorij, 20 Ohio B. 318. Cook t. Orange, 18 il. 526, 531. 
 Stoler's Admr. v. McCwrter, 4 Ohio St. B. 513. Nusee r. Beach, 
 16 a. 172.) 
 
 In the State of Oregon, the statute upon this subject is in aU 
 respects like that upon the same subject in the State of Minnesota, 
 with this alteration, that " in a criminal action or proceeding, a 
 husband or wife cannot be a witness for or against each other, 
 except when the crime was committed by or against the other." 
 {General Za/ws of 1864, Oiv. Code, tit. 3, ch. 8, § 702, sub. 1. And 
 Orim.. Code, ch. 22, § 212.) 
 
 In the State of Indiana, husband and wife are incompetent 
 witnesses for or against each other, and they cannot disclose any 
 communication from one to the other, made during the existence 
 of the marriage relation, whether called as a witness while the 
 relation exists or afterward. (2 E. S. 1852, pa^t 2, ch. 1, § 290. 
 Vide also Weisler v. Brdbasco,1 Ind. B. 690. Bobertson t. OaM- 
 well, 9 ib. 515. Jack v. Bussey, 8 ib. 180, Carpenter v. Dane, 
 10 «5. 128. Woolley Y. Turner, 13 ib. 253. Zapreese v. Folk, 7 
 iJ, 692.) . 
 
 Under the statutes of Indiana, husband and wife are competent 
 to testify after the marriage relation ceases to exist, as to any thing 
 the knowledge of which was not attained through the privacy of 
 the marriage relation. ( Woolley v. Turner, supra. Carpenter v 
 Dams, supra.) 
 
 In a suit for the seduction of the plaintiff's wife, her statements 
 are not competent evidence for 'the defendant. {Ma/rris v. Bussell, 
 U Ind. E. 209.) 
 
 It may be suggested that in several of the states the statutes 
 provide that ho person shall be excluded as a witness in any case 
 on the ground of interest, but the rule that husband and wife are 
 incompetent, at common law, to testify for or against each other, 
 is not changed by these statutes. "Whether the husband and wife 
 be pai;l;ies to the action, or only interested in the event, the policy 
 of the rule applies. {Bird v. Hulston, 10 Ohio St. B. 418. Eas- 
 Irouoh V. Vamdervoort^ 9 if. Y. B. 153. And vide Marsh v. 
 
MUTUAL DISABILITIES. 329 
 
 Pott&r, '30 Bao'l. It. 506. Main v. Stephens, 4 E. D. Smith's 
 E. 86.) 
 
 § 215. "With respect to the rule at common law which disquali- 
 fies husband and wife from entering into covenants with each 
 other, it may be suggested that the rule is so rigid that no agree- 
 ment between them will be recognized as removing the disabilities 
 resulting from the marital relation, or as changing the legal capaci- 
 ties or characters of either party. It has been sought in some 
 instances to give effect to a deed of separation, but the attempt is 
 answered by reference to the acknowledged principle that the con- 
 tract supposed was made between two persons who were but one 
 in law, and xmable for that reason, to contract with each other, 
 and that the foundation therefore failed upon which the deed is 
 sought to be sustained. It was said by Lord Kenyon, in such a 
 case, that, if it were otherwise, " and the parties were competent 
 to contract at all, it would then become material to consider how 
 far a compact would be valid, which had for its object the contra- 
 vention of the general policy of the law in settling the relations 
 of domestic life, and which the public is interested to preserve ; 
 and which, without dissolving the bond of marriage, would place 
 the parties in some respects in the condition of being single, and 
 leave them in others subject to the consequences of being married ; 
 and which would introduce all the confusion and inconvenience 
 which mij^t necessarily result from so anomalous and mixed a 
 character." {Mwrshall v. Sutton, 8 Term H, 545.) 
 
 The same doctrine is recognized and sangtionfed by the American 
 courts. {Beach v. Beaoh, 2 HiWs \N. T.] , B. 260. Cropsey v. 
 McKvrmey, 30 Barl.\N. Z".] R. 47.) 
 
 A deed from the husband to the wife without consideration, is 
 void both at law and in equity. The legal title in such a case 
 remains still in the husband. The relation of the parties mter se, 
 renders them incompetent to convey the legal title to real estate 
 directly from the one to the other. Such a conveyance from the 
 husband to the wife, if founded upon a sufficient consideration, 
 may be upheld in equity. {Fowlen' v. Trehe/m, 16 Ohio St. B. 493.) 
 
 A tripartate deed of trust and separation, executed by the hus- 
 band and wife, but not executed by the trustee, is binding on no 
 one, Ijut is held to -be absolutely »'void. {Smith v. Knowles, 2 
 GromCs \_Pa.'\ Oases, 413.) And it has been held in general terms 
 that contracts between husband and wife are contrary to the policy 
 42 
 
330 LAW OF COVMRTUBE. 
 
 of the lawf and are null and yoid. {Simpson v. Simpson, 4 Dana^s 
 iKy.] B. 141. 
 
 When these covenants are made with third persons as trustees, 
 for the benefit of the parties, they are sometimes sustained in a 
 court of equity, and the doctrine of equity as to enforcing such 
 covenants will be adverted to hereafter. 
 
 A married woman, at common law, cannot convey to her hus- 
 band, by deed, her dower right in his real estate, upon this same 
 principle of their mutual disability, and also upon the legal pre- 
 sumption that the wife is svb potestxtMvi/ri — "under the control 
 of her husband." {Graham v. Tan Wyek, 14 Ba/rb. B. 531.) The 
 wife is presumed to act under the influence of her husband, but it is 
 proper to remark that the husband is never presumed to act under 
 the influence of his wife {City Council v. Boven, 2 McCor^s \8. 
 C] B. 465) ; so that this principle does not enter into the rule 
 which disqualifies the husband, in general, from binding himself 
 by his contracts or covenants to his wife. 
 
 An indenture between husband and wife, after their marriage, 
 by which the husband purports to give the wife authority to use, 
 and dispose of by will, personal property acquired after the mar- 
 riage, and the rents and profits of real estate so acquired, refemng 
 to an antenuptial agreement, whereby the husband had agreed 
 that his wife might dispose of a certain amount of money by will, 
 and averring the intention of thus including personal property 
 acquired by the wife after marriage, is not binding, and will not 
 authorize the wife to devise and bequeath her property. {Osgood 
 V. Breed, 12 Mass. B. 525.) A post-nuptial agreement between 
 husband and wife, by which property is set apart for the sepai'ate 
 use of the wife, is absolutely void at law, although it may some- 
 times be sustained in equity. {Bleeker v. Bingham, 3 Paiges 
 Oh. B. 246.) So gifts, between husband and wife, without the 
 intervention of trustees, are absolutely void at law, but are some- 
 times sustained in equity. {Ehns v. Hughes, 3 Dessau. \_S. C] 
 B. 158.) 
 
 It has been held, however, by the superior court of the city of 
 New York, that when the husband draws a bill of exchange, paya- 
 ble to the order of his wife, her indorsement of the bill gives the 
 indorser a title, which enables liim to recover upon it against the 
 acceptor. Barbour, J., said : " It is true that, by the common law, 
 which, in that regard, must control in this case, a husband and his 
 
LIABILITT OF' THE BUSBAND. 331 
 
 wife are, in general, incapable of contracting with eacli other bo as 
 to create a right of action in favor of the one as against the other. 
 But a bill of exchange is not merely a contract between the drawer 
 and the payee. It is, when accepted, a new contract between the 
 acceptor and the then holder, who, in this case, was the indorser 
 of the wife ; nor is snch a bill always a contract, as between the 
 drawer and the person to whom or to whose order it is payable. 
 It may be made payable to the order of the drawee himself, or to 
 some one receiving the same for collection for the benefit and use 
 of the drawer ; or, what is a very common occurrence in commer- 
 cial communities, it may be payable to the order of some person 
 who indorses it simply for the accommodation of the maker. In 
 none of those cases is there any contract which can be enforced by 
 the payee named in the bill against the maker. In each instance 
 it is a mere direction to pay, and has no validity whatever, as an 
 obligation, until indorsed to a lona fide purchaser or acceptor," 
 {Lee Bank v. Satterlee, 1 Hobertson's H. 1, 4, 5.) 
 
 An agreement between husband and wife that they will live 
 apart, and the husband shall secure a separate maintenance to his 
 wife, through the intervention of trustees, and she shall not be 
 further chargeable to him, is void, and cannot be enforced. 
 {Goodwin v. Goodwin, i Day's [Oonn.] B. 343.) These are aU in 
 accordance with the rules of the common law, but the common 
 law rule has been greatly changed or modified by the statutes of 
 many of the states, and these will be noticed hereafter. 
 
 CHAPTEE XIX. 
 
 MABILniES OF THE HtTSBAlTD BY THE MAEEIAGE — HIS LIABILnT 
 
 DTratma cohabitation — his liabilitt aftek sBPAUATioifr— his 
 
 T.TATtTT.TTV FOE THE TOETS AND CEDHNAL ACTS OF THE WIFE. 
 
 § 216. In consequence of the rights which the husband acquires 
 over the person and the property of his wife, there are certain 
 liabilities which he incurs on her account, and by considering these 
 liabilities we are enabled the more readily to comprehend the 
 nature of the disability incident to a state of coverture. 
 
332 LAW OF COVERTXTRE. 
 
 The rule of the common law throws upon the husband the 
 burden of his wife's debts contracted by her dMm sola, whatever 
 their amount, and makes him liable for them during coverture; 
 this is the rule although the wife do not bring to the husband a 
 portion of a single shilling. {Heard v. Stamford, 3 P. Wms. R. 
 409. Welden v. Welden, 7 Ohio St. B. 30. Buchmr v. Smyth,^ 
 Dessau. [S. C] B. 371.) And this is the rule even though the 
 husband was an infant at the time the marriage was consummated 
 and the suit commenced, and this liability is held to be incident to 
 the marriage contract which an infant is competent to enter into. 
 {Parish v. Stroud, Barries' Notes, 95. Boach v. Qidck, 9 Wend. 
 [iT. y.] B. 238. BuUer v. Breck, 7 Meto. [Mas8.'\ B. 164.) It- 
 has been held that the husband is liable for the debts contracted 
 by his vdfe while she was the wife of a former husband, and living 
 separate from him, with a separate maintenance, because in such 
 case she became liable upon her contracts and .could be sued the 
 same as though she was sole. {Oorbett v. Poelnitz, 1 Term. B. 5. 
 BeGaUhu v. L'Aigle, 1 Bos. (& Pull. B. 357.) The later authori- 
 ties, however, hold that the wife cannot be sued at common law, as 
 a feme-sole, while the coverture continues. {Beard v. Webb, 2 Bos. 
 <& Pull. B. 93. Marshall v. Butter, 8 Term. B. 545.) And m a 
 still later case, it was held that no agreement between husband and 
 wife can alter the state of liability and non-liability which the law 
 imposes upon each. {Nurse v. Oraig, 5 Bos. cfe PuU. [2 New.] 
 R. 148.) The better opinion therefore is, that, as to the wife's 
 debts before marriage, the husband is only liable to pay the debts 
 of his wife contracted dum sola, and for all such he is liable. He 
 is in no case responsible for those debts of the wife for which she 
 was not legally liable at the time of the marriage. {Cowley v. 
 Bobertson, 3 Gamp. B. 438, Caldwell v. Brake, ^ J. J. Marsh. 
 iBy.} B. 246.) And according to Clancy, the rule is confined 
 to the wife's engagements contracted while she was unmamed ; for 
 if they were made during a former marriage, her subsequent hus- 
 band cannot be responsible for them, as she was, at that time, 
 incapable of entering into any contract. {Clancy on Married 
 Women, 13.) 
 
 The principle upon which the husband is liable for the debts of 
 his wife contracted dum sola, is not that he received property by 
 her, for the circumstance of his having received property from her 
 does not increase his liability, nor the faot that he received no 
 
LIABILITY OF THE HUSBAND. 333 
 
 property by her diminish such liability. Nor is this liability of 
 the husband based upon the idea that he is a debtor ; but the real 
 ground of this liability is, that the wife by her marriage, is entirely 
 deprived of the use and disposal of her property, and can acquire 
 none by her industry. The personal property of the wife passes 
 absolutely to the husband, and he is also entitled to the use of her 
 real estate during coYerture, and her person, labor and earnings, 
 belong unqualifiedly to him. This affords a very substantial reason 
 for the husband's liability for his wife's debts contracted before 
 coverture. {Yide Semes' Domestio Relations, Z.) , 
 
 § 21 Y. The responsibility of the husband for the debts of the wife, 
 contracted while she was a feme-sole, as it originates in the mar- 
 riage, ceases with it ; or the liability continues only so long as the 
 marriage, and if the wife die before the demand has been recovered 
 from the husband, he is discharged from any further liability. 
 This is the rule, although the husband may have received a large 
 fortune with his wife, and his liability is the same if he had 
 received nothing with her. {Heard v. Stamford, 8 P. Wms. R. 
 409. Tyl&r v. Lake, 4 ^m. R. 150. Oha/pUne v. Moore, 7 Mon. 
 \Ky.\ R. 179. Jones v. Walhwp, 5 Sneed^s \Tenn.\ R. 135, 
 Thaeton v. Houseal, 2 MoCord's [S. C.'\ Oh. R. 430. ' Tabl v. 
 Boyd, 4 CalVs [ Ya.] R. 453. JBwhnsr v. Smith, 4 Bessm. \8. C] 
 R. 341. Randolph v. Simpson, 2 Ealst. [if. J".] R. 346. Ifeutz 
 V. Renter, 1 Watt's [P«.] B. 229. Howes v. Bigdow, 13 Mass. 
 B. 384. After the death of the wife, the husband cannot be 
 made liable in eqv/ity for debts contracted by her before marriage, 
 when judgment has not been recovered against him in her life-time, 
 although he received with her a fortune sufficient to pay all her 
 debts. In this respect the rule is the same in equity as at law. 
 ( Witherspoon v. Dubose, 1 Bailey's \8. C] Eq. R. 167.) 
 
 In an'action for the debt of the wife dAim sola, the husband and 
 wife must be joined as parties defendants, and the plaintiff will be 
 nonsuited if he bring the action against the husband alone, {Angel 
 V. Felton, 8 Johns. [N. T.'\ R. 149. Gage y. Reed, 15 ib. 403. 
 Robinson v. Hardy, 1 Keb. R. 281. Drue v. Thorn, Alleyn's 
 R. 72. Mitchsen v. Heuson, 7 Term R. 348.) And a judgment 
 against the husband alone for such a demand will be reversed on 
 error. {Otoaj v. Thacker, 4 Ala. R. 136.) ' 
 
 In an action against husband and wife for the debt of the wife 
 dflim sola, the declaration must state the relation of husband and 
 
334: LAW OF COVERTURE. 
 
 wife in order to admit eyidence of a promise by the husband to 
 pay the demand, and should also specify whether the promise 
 relied upon was made before or after marriage. {The People v. 
 Oneida Com, Pleas, 21 Wend. 20. Fraruds v. White, 39 Eng. G. 
 L. R. 626.) No joint promise between husband arid wife, how- 
 ever, should be alleged, for the reason that the wife's promise, at 
 common law, is void. {Morris v. Norfolk, 1 Tamitmi^s B. 212. 
 Edwwrds v. Bmis, 16 Johns. P. 281.) In any action against 
 husband and wife for the debt of the wife while sole, the suit 
 abates if the wife die before the declaration is filed. ( Williams v. 
 Kent, 15 Wend. P. 360.) And in such a case, if the cause come to 
 trial, the admissions of the wife, made after marriage, that the debt 
 accrued dum sola, are not admissible in evidence to charge the 
 husband. {Poss y. Winner s, 1 Salst.\N'.J.'\ P. ZQ&. Shephmrdy. 
 Sta/rTcie, 3 Munf. [ Fa.] P. 29. Brown v. Lasalle, 6 Black. {Ind-I 
 P. liT.) 
 
 In an action against husband and wife for a debt due by the wife 
 dum sola, presumptive evidence of the marriage is sufBcient. 
 {Tracey v. McArlton, 1 Bowl. P. 533. Bacey v. McCa/rter, 3 
 Jur. 124.) 
 
 An action will lie against husband and wife for slanderous words 
 spoken by the wife before marriage. {Hank v. Sarman, 6 Bin- 
 ney>s [_Pa.\ P. 43.) 
 
 The rule is well settled, that at common law, on the espousal of 
 a damsel, she is taken with all her slanders on her head, and all 
 her trespasses, and her husband is answerable for them. It is, how- 
 ever, to the credit of the sex, that there is very seldom occasion in 
 this country to pursue the husband for the slander or breaches of 
 the peace of his wife dum sola. But by the marriage the husband 
 assumes all the liabilities to which his wife is subject at the time 
 of the marriage, including her debts, breaches of trust, trespasses, 
 slanders and libels. {Palmer v. Wakefield, 43 Eng. Ch. P. 227, 233.) 
 
 § 218. Although the husband is not answerable as such after the 
 death of his wife, for her debts contracted dum, sola, in considera- 
 tion of any personal property he has received with her, nevertheless, 
 if property belonging to the wife vests in him, not in his marital 
 right, but as administrator of his wife, he is liable to the extent 
 of her assets ; for since he cannot recover her property outstanding 
 at her death, except as her administrator, such property will, as in 
 ordinary cases, be assets to pay her debts, {Heard v. /Stamford, 3 
 
LIABILITY OF TSB HUSBAND. 335 
 
 p. Wms. R. 409. Adcm- v. Shmo, 1 8oh. di Lef. 363. Jones v. 
 WalJeuj), 5 Sneed's [Tenn.] E. 135.) In these cases, when the hus- 
 band is sued as the administrator of his wife, to recover debts due 
 from the wife dum sola, the court will decree payment to the 
 extent of what the husband has received since his wife's death as 
 her administrator, and he will be declared liable for so much only. 
 If, however, the husband make a settlement upon the wife, in con- 
 sideration of his wife's fortune, which is expressly secured to him 
 it would not be subject to her debts ditm sola, not being collected 
 during coverture. In that case the creditor would be remediless 
 unless he collect his debt during the life of the wife. {Mitford v. 
 Mitford, 9 Ves. B, 87.) 
 
 The bankruptcy of the husband does not take away the right of 
 the wife's creditors duTn sola to look for payment to her property, 
 which has been fraudulently conveyed away ; nor will his discharge 
 in bankruptcy destroy the creditor's right to enforce the debt 
 against the property of the wife. {Handm v. Bridge, 24 Maine 
 B. 145.) 
 
 It may be remarked that the husband administrator upon his 
 deceased wife's estate is not accountable to her heirs for the assets, 
 although he have a balance in his hands. Such assets belong 
 absolutely to the husband. {Clay Y. Irvine, 4 Watts c& Serg. [Pa.] 
 B. 232. WhitaJcer v. Whitaker, 6 Johns, [if. T".] B. 112.) 
 
 The husband is entitled to administer upon the intestate wife's 
 estate, and takes aU her personal property, after payment of her 
 debts ; and he cannot, of course, be cited to account by her next 
 of kin. This is the mle at common law, and always prevails 
 unless expressly changed by statute. {Shwmmay v. Cooper, 16 
 BoA'!). B. 556.) If the husband, without taking out letters of 
 administration, obtain possession of his wife's personal property, he 
 may retain it against his wife's next of kin ; and if administration 
 be granted to a third person, the administrator of the wife is 
 trustee to the husband. ( WhitaTcer v. WMtaTcer, sv^a.) But more 
 of this hereafter. 
 
 The husband is liable for a devastavit committed by his wife 
 dum sola; that is, whatever assets came to her hands as the 
 personal representative of a deceased person, and were wasted by 
 her previous to the coverture, he is chargeable with as for her debt 
 during coverture. {Adavr v. S/mw, 1 Sch. dh Zef. 263, 267. In re 
 Mo WilUams, Ih. 172. Cmroll v. Oannott, 2 J. J. Marsh. [Ky.] B. 
 
336 LAW OF COVERTURE. 
 
 199. Phillips V. Bidhmdam^ 4 t5. 215. Ormes v. Dovnwy, 3 
 Mon. {Ky.} R. 356. Ohaplm v. Simmons, 7 *5. 339. Moore^. 
 Henderson, i Desscm. [S. C] B. 459. .S^ioa; v. Picket, lb. 92, 
 .GVafe V. PMlldps, 1 Penn. B. 3?3.) So also the husband is liable 
 for the acts of his wife before coverture as executrix (^ sora fciy^, 
 that is, " of her own wrong." {Rubble v. Pogertie, 3 Bioh. [S. C] 
 R. 413.) But here again the rule conies in that the husband must 
 be prosecuted during coverture, for he is not liable for the devas- 
 tavit of his wife committed before marriage. {Maffit v. Common- 
 wealth, 5 Parr's IPa.} B. 369, Elliot v. Lmois, 3 Edno. [If. Z,] 
 Ch. B. 40, 45.) However, if judgment be had against husband 
 and wife for a devastavit by the wife as executrix dvm, sola, and 
 she die before execution issues, it may be executed against the 
 husband after her death, {Eyre v. Coward, 1 Sid. B. 337.) 
 
 If the husband dies before the wife's debt is recovered, the wife 
 surviving is liable for the debt. ( Woodman v. Chajyman, 1 Cam^. 
 B. 189.) But it has been held that the wife surviving is not liable 
 in such case, if the husband, during coverture, obtained a certificate 
 in bankruptcy, for the certificate discharges the wife's debts as well 
 as his own. {Lockwood v. Salter, 27 Eng. C. L. B. 82. MUes v. 
 Williams, 1 P. Wms. B. 249.) On the contrary, it has been held 
 in the State of ISTew York, that the discharge of the husband in 
 bankruptcy does not discharge the wife, the court of appeals hold- 
 ing that the bankruptcy of the husband extinguishes the liability 
 as to h'iin ; but it revives against the wife if she survive her hus- 
 band. {Vanderheyden v. Mallory, 1 W. Y. B. 452.) This is, 
 undoubtedly, the true rule in equity, however the rule may be at 
 law. 
 
 § 219. If a judgment be recovered against the wife previously to 
 her marriage, for her debt while single, and she die before the exe- 
 cution is sued out, the husband will be discharged from the 
 demand. But if the demand be sued after marriage, and a judg- 
 ment is recovered against both husband and wife, and the wife dies 
 before execution, the husband will continue charged for the demand ; 
 because by the judgment the nature of the debt was altered, and 
 from that time it became his own debt. {0^ Brian v. Bam, 3 Mod. 
 B. 186. Eyre v. Coward, supra. Treiban v. Lawrence, 2 Id. 
 Raym. R. 1050.) And for the same reason, if judgment be recov- 
 ered against the wife while sole, and a soire-fadas be brought upon 
 the judgment after the marriage against both husband and wife, 
 
LIABILITY OF THE HUSBAND. 337 
 
 and a judgment be obtained on tbe scire-facias, the husband will 
 not be discharged after the wife's death. This is, manifestly, the 
 doctrine as laid down in an early English case, though differently 
 understood by Mr. Bright, as stated in his treatise on the Eights of 
 Husband and Wife. {O'Brian v. Earn, 3 Mod. B. 186. 2 BrigMs 
 Hus. and Wife, 3.) But the husband is liable if the demand is put 
 into judgment during coverture, though not collected until after the 
 death of the wife ; and as a scire-faeias is treated as a new action, 
 and in cases where other parties than those named in the original 
 judgment became interested in the execution of the judgment, as 
 by marriage, the scire-fadas is resorted to, to make the new person 
 a party to the judgment, the husband will become bound by the 
 judgment originally entered against the wife. It is very clear, 
 therefore, that the judgment entered against the husband and wife 
 upon scire-facias brought upon the judgment against the wife while 
 sole, will bind the husband, though no execution issue until after 
 the death of the wife, and the husband will still continue to be 
 charged. So, also, a judgment recovered against the husband for 
 the debt of his wife d/u7n sola, may be enforced against liis estate 
 after his death, and a sdrefacias may issue against his executor.- 
 {Burton v. Burton, 5 Marring. [Z)e^.] R. 441.) 
 
 § 220. The statutes of several of the states have changed the 
 liability of the husband with respect to the debts of his wife exist- 
 ing at the period of the marriage. Thus, in the State of New 
 Tork, ib is provided by statute that an action may be maintained 
 against the husband and wife, jointly, for any debt of the wife con- 
 tracted before marriage, but the execution on any judgment in 
 such action can only issue against, and such judgment will only 
 bind, the separate estate and property of the wife; except that' 
 when the husband acquires the separate property of his wife, or 
 any portion thereof, by any antenuptial contract, or otherwise, he 
 is made Hable for the debts of his wife contracted before marriage, 
 to the extent only of the property so acquired. (Laws of 1853, ch. 
 576. 4 SM. at La/rge, 514, 515.) 
 
 In the State of Maine, the property of the husband cannot be 
 taken in execution upon a debt contracted by his wife before mar- 
 riage, but the property of the wife is alone liable for such debts. 
 {Laws 0/1852, ch. 291. R. 8. 1857, tit. 5, cK 6l, § 4.) 
 
 In the State of Massachusetts, it is expressly provided by statute, 
 that the property of the wife is alone liable for her antenuptial 
 43 
 
338 LAW OF COVERTURE. 
 
 debts. {Laws of 1855, ch. 304. Gen. Stat. 1860, ch. 108, § 8.) 
 The law is the same ia Pennsylvania. {Purdon^s Dig. of 1861, 
 pp. 669, 6Y0, § 14. LeFevre r. Witmer, 10 Fenn. R. 505.) 
 
 In the State of New Hampshire, it is provided by statute, that 
 in case the wife dies intestate, the husband shall take all of her 
 personal property subject to her debts, contracted both before ^nd 
 after marriage. [Co-mp. Laws, tit. 18, ch. 159, § 17.) In the State 
 of Connecticut, the husband is not liable for the antenuptial debts 
 of his wife. {Gen. Stat. 1866, tn,t. 13, ch. 2, § 31.) 
 
 In the State of Georgia, the property of the husband is not liable 
 for the antenuptial debts of ' his wife, further than the property 
 received by him through his wife will satisfy such debts. {Laws 
 0/1855, 1856, tit. 19, § 1T6,^. 229.) 
 
 In Florida, the property of the wife alone is liable for her debts 
 contracted- before marriage, or for any antenuptial obligation. 
 {Thompson's Fig., 2 div., tit. 5, ch. 1, § 2.) And the same is the law 
 in Alabama. {Code of 1852, § 1981.) 
 
 In the State of Mississippi, the husband cannot be made Hable 
 for the antenuptial debts of his wife, until her separate property is 
 exhausted. {Hutch. Code, ch. 34, art. 7, § 8. M. S. of 1857, ch. 
 40, a/rt. 25.) 
 
 In the State of Kentucky, the separate estate of the wife is 
 alone liable for her antenuptial debts and obligations, except that 
 the husband may be made liable for such debts to the extent only 
 of the personal property which he may receive through her. (2 E. 
 S.,ch.^1,a/rt.%%%l,B.) 
 
 In the State of Indiana, the husband is liable for the debts and 
 obligations of his wife contracted before ' marriage, only to the 
 extent of the wife's property, and this liability continues after the 
 wife's death. (2 E. 8. 1862, ch. 77, §§ 1, 2.) 
 
 In Missouri, the property of the husband, owned before marriage, 
 or acquired afterward by descent, gift, grant, or devise, and the 
 use and profits of it are not liable for the antenuptial debts of his 
 wife. {Laws of 1849, pp. 67, 68.) 
 
 In the new State of Nevada, the separate property of the hus- 
 band cannot be reached for the debts of his wife, contracted before 
 marriage. {Laws of 1864, 1865, ch. 76, § 13.) 
 
 In the State of California, the separate property of the wife is 
 alone liable for her antenuptial debts ; and in an action brought 
 to recover such debts, the husband need not be joined with the 
 
LIABILITY OF THE HUSBAND. 339 
 
 •wife as a party defendant. {Com/p. Lams 1853, ch. 147, p. 812. 
 Bostie V. Love, 16 Cal. R. 69.) 
 
 It is probable that similar provisions exist with respect to the 
 antenuptial debts of the wife, in some of the states not here men- 
 tioned ; but if there are, the statutes must have been passed quite 
 recently. 
 
 § 221. Every man is under obligation by the__common_law to 
 supply his wife with necessaries, suitable to his degree and circum- 
 stances, and if he neglects this duty, the law affords a remedy. 
 The wife in such case may have recourse to any friend for necessa- 
 ries, and the husband is bound to pay for them ; for when the law 
 imposes a duty, it raises a promise on the part of the person upon 
 whom it is imposed to discharge it. It is a settled principle in the 
 law of husband and wife, that, by virtue^f the marital relation, and 
 in consequence of the obligations assumed by him upon marriage, 
 the husband is bound for the supply of necessaries to the wife, so ' 
 long as she is not guilty of adultery or elopement. ( Vide Crom- 
 well V. Benjcmiin, 41 Barb. B. 658.) The plea of infancy of the 
 husband is no answer to a claim for necessaries furnished to the 
 wife, as a minor is liable in such a case the same as an adult. 
 {Gontine v. Phillvps, 5 Ham-mgton^s [Del.l B. 428. Cole v. Seeley, 
 25 Yt. R. 220.) 
 
 The husband is bound by the contracts of his wife, for ordinary 
 purchases, fi:om_a_presTmied assent on his part, but, if his dissent 
 be shown, the presumption, of course, is rebutted, and then he is 
 not liable, unless the seller shows the absolute necessity of the pur- 
 chase for her comfort. {Ethermgton v, Pm'rott, 1 Salk. R. 118.) 
 And this doctrine is fully recognized in this country, and is 
 believed to be founded on correct principles of justice. {Theriott v. 
 Bangioli, 9 Bosw. B. 578.) Therefore, in these cases, if it appear 
 that the husband has given notice not to sell to his wife on his 
 account, a subsequent promise to pay by the husband must be 
 shown, or that the goods furnished were actually necessary, in 
 order to make him liable. 
 
 So long as the parties cohabit as husband and wife, the husband 
 is liable for the necessaries of his wife, suitable to his degree and 
 estate ; and the misconduct, or even 'adultery, of his wife, in that 
 situation, does not excuse him from the liability. The wife pos- 
 sesses no original power to bind the husband for her necessaries ; 
 but, the very circimistance of cohabitation, and. from the goods 
 
340 LAW OF COVERTURE. 
 
 being consumed in his hcuse, the law implies the assent of the hus- 
 band to the wife's contracts for such necessaries. {Ethermgton v. 
 Parrott, 1 SaHi. R. 118 The rule of law is, that " the husband will be 
 liable when the goods purchased by her (to the payment for which 
 he would not be liable) come to her or his use with his knowledge 
 and permission, or where he allows her to retain and enjoy them." 
 (2 BrigMs Eus.da Wife, 9. Ogden v. PrenUce, 33 Barb. R. 160, 164) 
 
 It is asserted that the power of the wife to bind the husband, on 
 any of her contracts, is based on.the sole ground of agency, for the 
 reason that the wife, as such, has no original and inherent power 
 to make any contract, even for necessaries, binding on the husband. 
 {Benjamin v. Benjamin, 15 Conn. R. 347.) And, unless the 
 contract was originally made with his assent, express or implied — 
 that is, express or implied in la/uo, or' from certain facts, or was sub- 
 sequently adopted by him — ^he cannot be made liable. {Imm v. 
 Ironmonger, 13 Mees. c& Wels. R. 368. Freestone v. Butcher, 38 
 Eng. C. L. R. 269.) 
 
 Cohabitation is so strong evidence of the assent of the husband, 
 as to have been held sufficient to make him liable for necessa/ries 
 furnished the wifCj although the parties were not legally married, 
 and the tradesman knew it, the husband being liable for the debts 
 of his wife during coverture, if the relation of husband and wife 
 was only de facto. ( Watson v. Tralkeld, 2 JSsp. R. 627. Robin- 
 son V. Nahon, 1 Oam/p. R. 245. Munro v. DeChemant, 4 ih. 215. 
 Blades v. Free, 17 Fng. O. L. R. 351.) 
 
 § 222. With respect to the liability of the husband for necessa- 
 ries furnished to his wife, Mr. Story states, the rule, " that when 
 the husband and wife live together, or when they live separate 
 for any other cause than adultery, and the husband does not grant 
 to the wife an adequate allowance, he is bound to furnish her with 
 necessaries. And if he omit to furnish them, he impliedly makes 
 her his agent to procure them for herself, nor can he avoid his 
 liability therefor by a general prohibition to all persons, his pro- 
 hibition in such case being considered as merely void. When, 
 therefore, 'necessaries' are furnished to the wife, whether the hus- 
 band knows of it or not, the law raises an uncontrollable presump- 
 tion of an assent and authorization thereto on his part." (Sivry 
 on Con. %^.) 
 
 If Mr. Story means to say, in the last preceding sentence, that 
 the husband can never avoid paying for ai-tioles furnished his wife, 
 
LIABILITY OF TBE MUSBAND. 341 
 
 merely because they were necessaries, suitable to his and her estate 
 and degree, and because they cohabited together, he has stated the 
 rule much stronger than the authorities will justify. Cohabitation 
 is strong evidence of the assent of the husband to the contract of 
 his wife for necessaries, but it is not conclusive; and the pre- 
 sumption which arises from that fact may be rebutted. The 
 husband may show in his defense in such a case, that he supplied 
 his wife himself, or that he did so by his agents, or that he gave 
 her ready money to make the purchases. {Ma/ril/y v. Scott, 1 Sid. 
 E. 109.) 
 
 Lord Holt, in a case before referred to, says: "While they 
 cohabit, the husband shall answer all contracts of hers for neces- 
 saries ; for his assent shall be presumed to all necessary contracts, 
 upon the account of cohabitiag, imless the contrary appears." 
 And he held the presumption rebutted in that case, by the fact 
 that notice had been given the particular tradesman not to trust 
 his wife on his account. {JEtherington v. Parrott, 1 SdLlc. R. 118.) ' 
 
 In another English case where it appeared that the parties were 
 not separated, and the goods were necessaries, Holroyd, J., says: 
 "If a husband supplies his wife with money sufBcient for the 
 purchase of necessaries, he is not liable for any debt contracted b^ 
 her for necessaries, to a party who has notice of this allowance."* 
 {Molt V. Brien, 6 Eng. G. L. B. 418.) . / 
 
 In the supreme court of the State of New York, Piatt, J., said: 
 "The duties of the wife, while coKcMtvng with her husbaiid, form 
 the consideration of his liability for her necessaries. He is bound 
 to provide for her, m his family ; and while he is guilty of no 
 cruelty toward her, and is willing to provide her a home, and all 
 necessaries there, he is not bound to furnish them elsewhere." 
 And again : " Cohabitation is evidence of the husband's assent to 
 contracts made by his wife, for necessaries, and it can be repelled 
 only by express notice of previous dissent, or notice not to trust 
 her." {McOutchen v. McQahay, 11 Johm. R. 281, 282.) 
 
 § 223. It is doubtless true, that during cohabition, the husband is 
 bound to provide for his wife a suitable support, and if he does not 
 do it, he is legally liable for necessaries furnished to her by trades- 
 men, even though such necessaries are furnished against his positive 
 orders. By omitting to furnish his wife with necessaries, the 
 husband makes her impliedly his agent to purchase them. {Seaton 
 V. Benedict, 15 Eng. O. L. R. 355.) This, however, is altogether 
 
342 i-^W OF COVEBTURK 
 
 a different proposition than to affirm that the husband is uncon- 
 trollably bound to pay for -whatever his wife takes up, and is liable 
 on her contracts, merely because they were cohabiting, and the 
 articles furnished were necessary and suitable in quantity and 
 quality. Cohabitation is strong presumptive evidence of authority 
 to purchase necessaries, but is no evidence of authority to purchase 
 other articles not suitable to his estate and degree, or the station 
 which he permits his wife to assume ; and without some other evi- 
 dence of the husband's assent, than mere cohabitation, no action can 
 be maintained. {Morton v. Withms, Slcin. E. 349. Montague v. 
 Benedict, 10 Eng. G. L. B. 205. Montague v. Espinasse, 11 il. 
 416, 454. Spreadhury v. Chapmam, 34 ib. 434. Atkins v. Camaood, 
 32 %b. 21.) 
 
 Slight circumstances have been held sufficient in some cases to 
 charge the husband for articles not suitable to his wife's real degree ; 
 as, if he knowingly permit her to assume an appearance beyond 
 that degree. [Waiihman^. Wahefidd, 1 Camp. ^..120.) The 
 mere fact, however, that the husband had seen the articles, will 
 not charge him, when it appeared that he had disapproved of their 
 purchase. {Atkins v. Garwood, supra.) 
 If the tradesman originally gave the credit to the wife, although 
 Icohabitation continued, the husband is not chargeable, whether the 
 articles were necessaries or not. {Seniley v. Griffim, 1 Eng. C. L. B. 
 t31. Metcalfe v. Shaw, 3 Gamp. B. 22. Moses v Forgartie, 2 HilVs 
 \S. C] B. 335. Sweet v. Penrice, 24 Miss. B. 416.) When a physi- 
 cian renders professional services to a married woman at her request, 
 and expressly upon her credit, while she is living apart from her 
 husband, the supreme court of Vermont held that the rule was 
 clear that he could not afterward recover in assumpsit against 
 the husband. {Cwrtor v. Howard, 6 Am. Law Beg. iT. S. 411.) 
 In this case the separation between the husband and wife was 
 voluntary on the part of the wife, though not an adulterous elope- 
 ment, and it is probable, therefore, that the physician could have 
 recovered of the husband for his services, had the same been done 
 upon his credit. ( Vide Day v. Burnham, 36 Yt. B. 37. BUch 
 V. Bryam, 18 Texas B. 453.) 
 
 When a wife having a sepai-ate income, purchased solely upon 
 her own credit, suitable furniture for a house held for her by trus 
 tees and occupied by herself and her husband, and subsequently 
 died, having bequeathed the furniture to her husband, the supreme 
 
LIABILITY OF TBE HUSBAND. 343 
 
 court of New Hampshire held that the vendor, who had thus sold 
 the furniture to her with knowledge of the facts, could not recover 
 for it of the husband in assumpsit. {Hill v. Ooodrich, 6 Am. Law 
 Beg. N. S. 250.) And in a case in the supreme court of the State 
 of New York, where it appeared that a feme-covert had a separate 
 estate vested in a trustee, and services were rendered on the estate, 
 and the credit given to her, the court held that the husband was 
 not liable, the judge who delivered the opinion remarking : " There 
 is no equitable or legal consideration on which his liability can be 
 sustained when the credit was given exclusively to the wife." 
 {Stammers v. McComib, 2 Wend. E. 454.) 
 
 If a wife contract for necessaries, or for goods that go to the use 
 of the husband, the law presumes the wife to be his agent, and he 
 will be made liable to pay for the articles purchased. ( WilUams 
 V. Cowan, 1 Granfs \_Penn.] Oases, 21. 2 Phil. B. 10. 6 Am. Law 
 Beg. 315. Tide also McGeorge v. Egam, 7 Scott^s B. 112. Plim- 
 mer v. Sills, 3 Wmi. & Man. B. 422.) 
 
 When a husband lives with his wife, and has paid bills created 
 by her, his estate is liable for goods suitable to his condition in life, 
 bought by her without his order, and received in his house a few 
 hours before his death, and partly used before that time and at his ♦ 
 funeral, although the wife had separate property, and sometimes ', 
 paid bills with it. {Sterling v. Potts, 2 South. [iT. J,-] B. YY3.) ' 
 But it seems that the husband's executor is not bound to pay for 
 goods supplied to the wife after her husband's death, although 
 before information of his death has been received. {Blades v. Free, 
 17 Mig. C. L. B. 351.) And as, in such a case, the wife is not 
 liable, it follows that the tradesman who supplied the goods is 
 remediless. {Smwrt v. IThwry, 10 Mees. & Wels. B. 1.) 
 
 But the estate of a deceased husband is subject to the funeral 
 charges of his wife, though she had a separate maintenance which 
 she disposed of by will. {Ethervngton v. Pa/rrott, 1 Salh. B. 119. 
 Gregory v. JLockyer, 6 Madd. Oh. B. 90.) 
 
 § 224. The husband is not liable as husband for money borrowed 
 by his wife, even though the money be applied to the purchase of 
 necessaries, or to the redemption of the wife's clothes that have 
 been pawned. Neither is the husband liable if the wife take up 
 goods, and, before they are made into clothes, pawns them ; though 
 the rule is otherwise if the clothes are made up and worn and then 
 pawned, for in that case the husband may be liable. In these 
 
844 LAW OF COVEBTUBE. 
 
 cases the husband cannot be made liable unless his request be 
 averred and proved, or there be circumstances to show that the 
 ■wife contracted the debt as the agent of her husband. {Earle v. 
 Peala, 1 Salh. E. 387. Eth&rmgton v. Farrott, II. 118. Anony- 
 mous, 2 Show. B. 283, 290. 8ton6\. McNair, 2 Eng. C. L.R. 
 166. Stevenson v. Hardy, 3 Wils. B. 388. Walker v. Simpson, 1 
 Watts (& Serg. [Penn.] R. 83.) The husband can in no case be 
 made liable upon the contract of the wife if the same be illegal ; 
 for example, it is ruled that the husband is not liable for diet and 
 lodging famished his wife in a prison, unless he assented to it. 
 {Fowler v. JDyneley, 2 Stra. B. 1122.) 
 
 The rule in equity is different from that at law, when the wife 
 borrows money without the express authority of the husband, and 
 actually expends it for the purchase of necessaries. In equity, in 
 such a case, the lender of the money will be allowed to stand 
 in the place of the tradesman, and to have satisfaction as far as 
 the tradesman could had he been plaintiff. {Harris v. Lee, 1 P. 
 Wms. B. 482. Walker v. Simpson, supra.) 
 
 TJpon the same principle that cohabitation is presumptive evi- 
 dence of the authority of the wife to contract for necessaries, a 
 man is liable for the debts incurred for necessaries by a woman 
 with whom he cohabits, holding her out to the world as his wife, 
 though of right she may not be his wife ; that the relation of hus- 
 band and wife exists de facto is sufficient to fix the reputed 
 husband for such debts during coverture. {Robinson v. Nalum, 1 
 Camp. B. 245. Mumro v. DeOhemam,t, 4 ii, 215. Watson v. 
 Threlkeld, 2 Esp. B. 637. Blades v. Free, 17 Fng. O. L. B. 361.) 
 
 So, also, when a man, being already married, marries to a second 
 woman, he will be liable for necessaries furnished to the second 
 wife during their cohabitation, and he cannot discharge himself 
 from the obligation by proof of the former marriage. (RoMnson 
 v.iTaAosra, supra.) But if it could be proved that the plaintiff 
 knew of the celebration of the first marriage, it would be a bar 
 to the action. (75.) 
 
 At common law, the husband alone is liable for necessaries fur- 
 nished to the wife during coverture, and in an action therefor to 
 recover for the same, the wife ought not to be joined. {Main v. 
 Stephens, 4 F. D. Smith's B. 86.) In the State of Pennsylvania, 
 however, they have a statute providing that in cases of necessaries 
 fqrnished for the family of a married woman, an action may be 
 
LIABIUTT OF TSE SUSBAND. 845 
 
 brought therefor against the husband and wife, and if judgment 
 is recovered, an execution may issue thereon against the property 
 of the husband, and if the execution is returned unsatisfied, an 
 alias execution may issue against the property of the wife. {Pur- 
 don's Dig. p. TOO, § 13.) Un*&er this statute, in order to hold the 
 wife, the debt for the necessaries must have been contracted by 
 her. {Murray v. Keyes, 35 Perm. B. 384. Parlee v. Kleber, 37 
 *5. 251.) They have a similar statute in the State of Texas. 
 ( Vide Magee v. White, 23 Texas B. 180.) 
 
 Thus much for the liability of the husband upon the contracts 
 of the wife for neceagai-ies, and the presumptions of law during 
 cohabitation. It i? the duty of the husband, under all circum- 
 stances, to provide his wife a suitable and reasonable support, 
 according to his degree and estate, during coverture ; and if he 
 refuses or unreasonably neglects to do so, he is liable to any one 
 who performs that duty for him. 
 
 § 225. If the husband and wife separate and live apart by mutual 
 agreement, the husband is still liable for necessaries supplied to his 
 wife, imder the same circumstances and subject to the same excep- 
 tions as though they cohabited as husband and wife. {Mayhew v. 
 Thayer, 8 Gray's {Mass.) R. 172. Locknjoood v. Thomas, 12 Johns. 
 JR. 248.) 
 
 This rule, however, does not apply to the case of a man having 
 two wives, and the necessaries are furnished to the second wife. 
 In such a case, if the goods were furnished to the woman alter the 
 parties had ceased to cohabit, the plaintiff cannot recover, if it be 
 proved that they never were married, though they had lived 
 together as man and wife for seventeen years. Lord Ellenborough 
 said: "Had the goods been famished while the defendant was 
 living with this lady, his representation that she was his wife would 
 have been conclusive against him; but I think his liability for 
 necessaries supplied to her after they had separated, depends entirely 
 upon whether he really had been lawfully married to her or not. 
 If the jury think upon the evidence that she is, indeed, his wife, 
 they will find for the plaintiflf, but the action cannot otherwise 
 be sustained." The jury found for the plaintiff. {Munro v. De 
 Chemant, 4 Camp. B. 215. Clancy on Sus. and Wife, 46, 47.) He 
 is also liable for such necessaries when the separation is involuntary 
 en the part of the wife ; or when the husband turns his wife out 
 of doors without provision and without suflficient cause, his assent 
 44 
 
346 LAW OF COrHRTURE. 
 
 to her contract for the purchase of articles of necessity is implied 
 by a fiction of law founded on his duty to provide for her reason- 
 able support, by causelessly and unjustifiably sending her from his 
 home, or giving her a general credit for necessaries for which he is 
 answerable. {MoQaJiay v. Williams, 12 Johns. B. 293. Bolton 
 V. Prentice, 2 St^a. B. 1214 EmTnett v. Norton, M Eng. O. L. 
 B. 503.) If the husband drive his wife from his house by severity, 
 she not being guilty of adultery, the husband continues to be liable 
 for necessaries furnished her, the same as though he cohabited with 
 her. {Clement v. Mattison, 7 Bichardson's [S. C] B. 93. SheUon 
 V. PenMeton, 18 Conn. B. 417. Evans v. Fisher, 7 Gihn. [/S.] 
 B. 569.) Personal violence, whether actually inflicted or only 
 threatened, is cause for the separation of a wife from her husband ; 
 and as it justifies her in quitting his roof, he continues liable for 
 necessaries supplied to her. {Breinig v. Meitzler, 23 Perm. B. 
 156.) In fact, the husband continues liable for necessaries far- 
 nished to his wife in all cases where she has justifiably left him 
 and lives separate and apart from him. {Burlen v. Shannon, 14 
 Gray's \Mass.'\ B. 433. Kenvp v. Dunham,, 5 Ha/rrvng. IBel.'] B. 
 417. Ba/ulins v. Vandyke, 3 Esp. B. 251. Hodges v. Hodges, 1 
 ib. 441. McOutchen v. McGahay, 11 Johns. B. 281. Hurliston 
 V. Smith, 11 Eng. C. L. B. 64. Pom^eroy v. Wdls, 8 Paige^s B. 
 406. Pea/rson v. Darrington, 32 Ala. B. '2,%1. Hancock v. Mer- 
 rick, 10 Cush. [Mass.] B. 41.) And this is the rule, notwithstand- 
 ing the husband may have forbidden people to trust the wife on 
 his account ; or, in case the wife was originally compelled to leave 
 her husband by personal abuse, he may ask her to return, and 
 promises to use her well. {Bradish v. Huse, 1 Panels Ah. B. 355.) 
 The authority of the wife to bind her husband for necessaries fur- 
 nished to her while living separate from him, depends upon his 
 obligations to support his wife, independent of notice to persons 
 who deal with her. 1^ Therefore, if the wife is not, from her conduct, ' 
 legally entitled to support from her husband, the fact that the 
 tradesman had no knowledge of the conduct of the wife or 
 the cause of the separation, does not give him a cause of action 
 for the necessaries furnished. 1 {GUI v. Bead, 6 B. I. B. 343.) By 
 the commission of adultery, the husband justifies the wife in 
 leaving him, and, if she leaves his house in such a case, he is liable 
 for her necessaries, though he forbids trust to her; nor can he 
 shield himself by offering to provide for her in a separate apart- 
 
LIABILITY OF TEM HUSBAND. 347 
 
 ment of Lis residence. {Syhes v. Halstead, 1 Sand. E. 483.) In 
 one case it was held that the husband was not liable for necessaries 
 supplied to his wife, who had quitted him in consequence of his 
 having placed a profligate woman at the head of his table. {Hor- 
 wood T, Soffe, 3 Taunt. R. 421.) But in a later case it was held 
 that this doctrine could not be law. {Murliston v. Smyth, 11 Eng. 
 G. L. R. 64.) 
 
 "When the husband has become liable for necessaries furnished to 
 his wife by turning her out of doors, he cannot relieve himself from 
 such liability by cautioning the public in the newspapers, or giv- 
 ing notice to individuals, not to trust her on his account. It was 
 ruled by Lord Kenyon long ago, that " if he put her out of doors, 
 though he advertise her, and caution all persons not to trust her, 
 or if he even gave particular notice to individuals not to give her 
 credit, still he would be liable for necessaries furnished to her, for 
 the law has said, that when a man turns his wife out of doors, he 
 sends with her credit for her reasonable expenses." {Harris v. 
 Morris, 4 JSsp. Cas. 41.) And his Lordship said in another case, 
 that when a wife's situation in her husband's house was rendered - 
 unsafe from his cruelty or iU treatment, he should rule it equiva- < 
 lent to a turning her out of the house, and that the husband should ' 
 be liable for necessaries furnished to her under these circumstances. 
 {Hodges v. Hodges, 1 Esp. Cas. 441.) 
 
 § 226. When a husband, well able to support his wife, who was 
 insane, neglected to protect and provide for her ; and she wandered 
 into an adjoining town, where she received support, the expenses 
 of which were reimbursed in the first instance by the town where 
 she was relieved, and then repaid by the town of the husband's set- 
 tlement and abode ; it was held, in the State of Maine, that the 
 latter town might recoyer against the husband the expenses thus • 
 incurred. {Alna v. PVaywmer, 4 Greenl. B. 258. Vide also Mon- 
 son V. Williams, 6 Gray's [Mass.] B. 4l6.) Unquestionably the 
 husband would be liable, at common law, to pay for the support 
 of his wife under such circumstances, to the person furnishing such 
 support ; but it is questionable whether the pubUo could give the 
 necessary relief in such a case, and then look to the husband for 
 reimbursement, unless a statute exists providing such a remedy. 
 
 In the State of I»few York, it has been expressly held, that 
 superintendents of the poor cannot maintain an action against a 
 husband for boarding, clothing and medical aid furnished to his 
 
348 ZAW OF COVERTUEM. 
 
 wife as a pauper; notwithstanding he has maltreated her and 
 expelled her from his house without just cause, and refuses to pro- 
 vide for her though of sufficient ability to do so, on the ground that 
 the wife of a man who is bound by law to support her, and who 
 has abundant means to do so, cannot be regarded as a pauper 
 {Norton v. Rhodes, 18 Barb. B. 100.) This is doubtless the doc- 
 trine of the common law ; although in one case in the late court 
 of chancery of the State of New York, the chancellor made a 
 remark which would seem to countenance the idea that an action 
 at law would lie against the husband by the superintendents of the 
 poor, upon common law principles. {Pom&roy v. WeUs, 8 Paiges 
 B. 4:06.) But the chancellor cites no authority to sustain the 
 remark, and does not seem to have carefully considered the ques- 
 tion, and the intimation is expressly disapproved in the case of 
 Norton v. Bhodes, swpra, while the general liability of the hus- 
 band in such cases, is recognized. 
 
 / § 227. Where a husband, absent from his family, had knowledge 
 that his 'wife was keeping a boarding-house, to support herself and 
 children, and did not return to them, or make any provision for 
 them, but suffered her to continue the business and rent a house 
 for that purpose, without expressing any dissent, or publishing any 
 prohibition, and she conducted it in a reasonable and prudent 
 manner to support the family, it was held, in the State of Connec- 
 ticut, that the husband was liable on her contract to pay the rent 
 of the house. {Botch v. Miles, 2 Oonn. B. 638.) And it may be 
 laid down as a general proposition that, at common law, a husband 
 
 ' is liable for necessaries furnished his wife, when he absents himself 
 without leaving her with reasonable means of support, and the 
 same wiU be true, if he lives separate from his family, and omits 
 to furnish them with necessaries suitable to their condition in life, 
 and the means at his command. {Cheek v. Bellows, 17 Texas B. 
 613. Kimball v. Keyes, 11 Wend. B. 33. Bird v. Jones, 3 Man- 
 ning & Byl. B. 121. Wood v. 0' Kelly, 8 Cush. \_Mass.'\ B. 406. 
 Rail V. Wevr, 1 Allen^s [ifass.J B. 261. „It has even been held 
 that when the husband, knowing of his wife's adultery, abandoned 
 his house and left her in it, with children bearing his name, but 
 without making any provision for her by reason of the separation, 
 and the wife continued in a state of adultery, he was liable for 
 necessaries to her during that period. {Norton v. Kazan, 1 Bos. 
 <& Full. B. 226.) This, however, must be understood with the 
 
LIABILITY OF THE MUSBANO. 349 
 
 proviso that the tradesman was ignorant of the wife's adulterous 
 intercourse, or the fact must exist that the husband voluntarily 
 yielded his bed to the adulterer and made no provision for the 
 wife. Knowing of her criminal conduct, he must either obtain a 
 decree of divorce or continue to maintain her. Though in the 
 State of Massachusetts it has been held, that when the husband 
 turns away his wife for the cause of her adultery, he is not liable 
 on her contracts made with persons having notice that he has 
 discarded her ; and it was even questioned whether the want of 
 such notice, or that a divorce had been refused the husband on the 
 ground of like crimmality on his part, would make any difference. 
 {Hunter v. Bouoher, 3 Pick. R. 289.) This, however, comes very 
 far short of showing that the husband is not liable under the 
 same circumstances, provided the wife continue to inhabit his own 
 house. 
 
 § 228. But the husband is exempt from the duty of providing 
 necessaries for his wife, in all cases where the circumstances are 
 such as to- preclude all possibility and even propriety, to raise an 
 implication that the wife acts under his authority. 
 
 "^ Thus, if the wife leave her husband and forsakes his home of her 
 own accord, wantonly and without a justifiable cause,' the law 
 does not conbinue the implied authority from him to her to pur- 
 chase necessaries which obtains when they continue to cohabit. 
 {Collwis V. Mitchell, 5 Harrvng. IDel.} B. 369. Pool v. Everton, 
 5 Jones' [W. (7.] Lom P. 241. Etherington v. Parrott, 1 Salk. R. 
 118. 8. a 2 Id. Raym. R. 1006. Mardey v. Scott, 1 Sid. R. 130". 
 1 Kih. R. 430. Bailm/ v. Calloott, 4 Jut. 699. Brown v. Pat- 
 ton, 3 Mwmph. [Tenn.] R. 135. Burlen v. Shcmnon, 14 Gray^s 
 [Mass.] R. 433. Sindl&y v. Westmeath, 13 Eng. O. L. R. 141. 
 Ca/r&y v. Patton, 2 Ashm. ^Penn.] B. 140.) — "^ 
 
 ■^^ The cause which will justify the wife in leaving her husband so 
 as to render him liable for her necessaries while away from him, 
 must be grave and weighty, and if she forsake him except for some 
 such serious cause, he is exempt from all liability on her account. 
 {Rice V. Purkee, 25 III. R. 503.) 
 
 "When a wife elopes from her husband without any sufficient "~ 
 cause, though not with an adulterer, the husband will not be liable 
 for any of her contracts, though the person who gives her credit 
 for necessaries had no notice of the elopement. {MbCuichen v. 
 MeQahm/, 11 Johns. R. 281.) \ 
 
350 LAW OF COVERTUBE. 
 
 When the wife left the husband, not from any fear of personal 
 violence, but from dislike to inmates of the family, and went to 
 her father's, and refused to return unless the husband would get 
 rid of such inmates, it was held that the husband was not liable to 
 the father for her maintenance. {Blowers v. SPurtemnt, i Denio's 
 H. 46.) Of course, the elopement of the wife, accompanied with 
 adultery, will discharge the husband from all obligation to find ^her 
 necessaries, and consequently he will not be bound by her contracts 
 for them under such circumstances, for it would be most unreason- 
 able in such a case to continue the implication of his authority to 
 her to procure necessaries ; and in such an aggravated case, his 
 refusal to take her again will not revive his obligation to maintain 
 her. {Morris v. Martin, 1 Stra. R. 647. Mcmwaring v. Sands, 2 
 ib. Y07. Hardin v. Grcmt, 8 Oar. da Payne's B. 612. 2 BrigMs 
 Husband and Wife, 14.) And this doctrine is carried to the extent 
 that the husband is not liable to maintain his wife who has left 
 him, and committed adultery, although he has himself afterward 
 been guilty of the same offense. {Rex v. Flimian, 1 ^ooti. <& 
 Aid. R. 227.) 
 
 In one case the demand was for the wife's board and lodging; 
 and it appeared that the wife had been turned out of doors by the 
 husband, and afterward committed adultery, and finally offered to 
 return home, but the husband refused to receive her. The court 
 held that the husband was not liable, and said, " that, though this 
 precise case did not appear to have been controverted before, it was 
 probably because the points had not been doubted ; and that it 
 must be governed by the same principle on which it had been 
 determined that the husband is not liable in cases where the wife 
 goes away with an adulterer ; that this was not a modern rule, bnt 
 was mentioned by Lord Coke, that if a wife go. away with an 
 adulterer she loses her dower. That the question depended upon 
 this, whether the necessaries were provided before or after the wife 
 committed adultery ; if after, the action could not be maintained. 
 And that in this case, if the wife had instituted a suit in the 
 ecclesiastical court against the husband for restitution of conjugal 
 rights, they would not have assisted her." {Govin v. Hanoock, 6 
 Term R. 603.) 
 
 It has been held, in general terms, that the husband is not liable 
 for necessaries furnished to his wife living apai't from him if she. 
 has committed adultery, whether before or after the separation; 
 
LIABILITY OF THE HUSBAND. 351 
 
 and that the dismissal of the husband's petition against his wife for 
 a divorce is not conclusive that the wife is not guilty of adultery 
 in an action which is brought to recover for necessaries. {Gill v. 
 Bead, 6 H. I. Ji. 343. Howard v. Whitslone, 10 Ohio R. 365, 370.) 
 
 § 229. The husband is also exempt from the duty of supplying 
 his wife with necessaries, and is not liable for any of her debts con- 
 tracted for articles furnished to her when the husband and wife 
 part by consent, and the husband secures to the wife a separate 
 maintenance sufficient and suitable to his condition in life, and 
 pays it according to agreement, and the general reputation of the 
 separation will be sufficient to defeat a recovery. {Calhms- v. Long, 
 22 Bm-h. H. 97. Baker v. Barney, 8 Johns. M. 72. Fenner v. 
 Lewis, 10 -Q). 38. Todd v. Stohes, 1 8alk. R. 116.) In the case 
 of Todd V. StoJces, Holt, Ch. J., says : " If baron and feme separate 
 by consent, and she has a separate allowance, it is unreasonable 
 she should still have it in her power to charge him." 
 
 In general where a separation of husband and wife takes place 
 by consent, the obligation to maintain the wife lies upon the hus- 
 band, unless she forfeits her right to that maintenance by her own 
 misconduct. A provision for a separate maintenance is of com- 
 paratively modern introduction. Lord Mansfield, in a case before 
 him, states the origin of this practice. He says, in the ancient 
 law there was no idea of a separate maintenance ; but when it was 
 established, what said the courts ? That the husband shall not be 
 liable, even, for necessaries ; and they said so because convenience 
 and justice require it. {Ooriett v. Poelnitz, 1 Term R. 5.) 
 
 In all these cases of mutual separation, with an allowance to the 
 wife, great stress is laid upon the circumstance of the due security 
 and punctual payment of the pecuniary maintenance allowed to 
 the wife. The case may be considered as, in some measure, 
 analogous to an accord and satisfaction, when the accord avails 
 nothing unless satisfaction be made. The covenant for an allow- 
 ance is of no use if the maintenance be not paid. It gives no 
 credit to the wife, for no action, at common law, can be brought 
 against her. It is to supply her with ready money, for, if she have 
 a provision, which is duly paid, ^he will have the means in her 
 hands of acquiring all the necessaries of life suitable to her degree. 
 If tradesmen give her credit, it is their own fault. They can 
 neither sue her nor the trustees ; and, if the mere covenant exempt 
 the husband, a person who has provided clothes or meat for the 
 
352 LAW OF COVERTURE. 
 
 wife may be compelled to seek his redress in a court of equity, 
 and, in the mean time, the wife must starve. It is unreasonable, 
 in the highest degree, to consider that as a ground of exemption 
 which the law itself would impose. This is the reasoning of 
 Chambre, J., in a case in England, in which the question was most 
 thoroughly considered; and Heath, J., in the same case, said: 
 " To suppose that a woman, who is parted from her husband 
 under an agreement for a separate maintenance, is not, by law, 
 entitled to charge her husband with payment for necessaries, when 
 he withholds the stipulated j^lowance, shocks my humanity, and 
 revolts my reason;" and, although Sir James Mansfield, Ch. J., 
 differed with his brothers on the bench, it was held that the hus- 
 band must not only covenant, through the medium of a trustee, to 
 maintain his wife by a proper allowance, but the allowance must 
 be punctually paid, or the person who supplies her with neces- 
 saries may maintain an indebitatnis assumpsit against the husband 
 for such necessaries. {Nurse v. Orcdg, 5 Bos. & Pvl. B. 138.) 
 And this is the doctrine universally recognized at the present day. 
 There must not only be an ample and binding allowance, but the 
 allowance must be punctually paid, in order to exempt the hus- 
 band from his liabihty to pay for necessaries furnished to his wife, 
 while they are living separate and apart by mutual consent. 
 ( Vide Baker v. Barney, 8 Johns. B. Y2.) The actual payment of 
 the allowance, or other provision, is absolutely necessary, and it 
 has been held that a decree for alimony will not destroy the lia- 
 bility of the husband, unless the alimony be duly paid. {Hunt v. 
 JDeBlaquiere, 15 Eng. O. L. B. 535.) 
 
 §229. a The only essential requisites to a valid allowance are, 
 that it be really sufficient for the wife, and be acbvbally paid, and 
 no notice to tradesmen, or general notoriety, is necessary to dis- 
 charge the husband, whether the articles furnished were or were 
 not necessaries. {Misen v. Pick, 3 Mees. da Wels. B. 481. Carey 
 V. Patton, 2 Aslim. B. 140. Baker v. Bam&y, 8 Johns. B. 72. 
 Mott V. Comstook, 8 Wend. B. 544. Wilson v. Smith, 20 JEng. 0. 
 L. ^r486.) It has been held that if the separate maintenance 
 be secured by deed, it is void unless executed by a trustee on the 
 part of the wife. {Ewers v. Hutton, 8 Esp. B. 255.) But it seems 
 that no deed is necessary to make the separation valid, so far as to 
 exempt the husband from his liability for the debts of the wife is 
 concerned ; it is only requisite that the allowance be sufficient and 
 
LIABILITY OF TEE HUSBAND. 353 
 
 be actually paid. {Emery v. Neighbor, 2 Haht. \N. J".] R. 142. 
 Modghinson v. Fletcher, 4 Camp. B. 70.) 
 
 An agreement' made in contemplation of arid as an inducement 
 to a separation of hustand and wife is void, and this as between 
 the husband and the trustee of the wife. , {Florentine v. Wilson. . 
 Lalor's [N. Z.] B. 303. 
 
 It is proper to remark, that so far as the agreement by which 
 husband and wife are to live separate and apart is concerned, it 
 binds the parties and the public only so long as the parties live 
 separate, and the articles of separation are actually performed. 
 It is impossible for a feme-covert to make a valid agreement with 
 her husband to live separate from him, in violation of the marriage 
 contract, and of her duties to society, except under the sanction of 
 a court of equity, and in a ^ase where the husband's conduct 
 entitles her to a decree of separation. The law does not authorize 
 or sanction a voluntary agreement for a separation between hus- 
 band and wife. It merely tolerates such agreements when made 
 in such a manner that they can be enforced by or against a third 
 person acting in behalf of the wife. {Rogers v. Rogers, 4 Paiges 
 R. 516.) But it has been held ia the StatOjOf Ohio, that articles 
 of separation by husband and wife, through the medium of a 
 trustee, for the separate support and maintenance of the wife,, and 
 when separation takes place, are not void as against public policy, 
 {Settle V. Wilson, 14 Ohio R. 257.) 
 
 The return of the wife to the. bed and board of her husband 
 terminates an agreement between them to live separate forever, 
 and destroys the legal effect of a bond given by him as a part of 
 that agreement for her separate maintenance; and her subsequent 
 abandonment of him cannot revive the bond, or restore his legal 
 liability upon the agreement. {Shdthar v. Gregory, 2 Wend, 
 R. 422.) 
 
 If husband and wife agree to separate temporarily, and the hus- 
 band secure her an annual allowance, an offer by him to take her 
 back and support her ends the arrangement, and a court of equity 
 will not compel further payment of the allowance ; but if the agree- 
 ment be to live apart so long as both shall live, the rule is other- 
 wise. {Calhins v. Long., 22 Barh. R. 97.) 
 
 Of course, after an agreement of separation between husband 
 and wife is at an end, and the. wife has kept herself pure, and 
 returns or offers to return to her husband, he will thereafter be 
 45 
 
354 LAW OF COVEBTUBE. 
 
 liable for her support. The subject of articles -of separation' 
 between husband and wife in another aspect will be recurred to 
 hereafter. If the husband and wife separate by mutual consent, 
 and the husband make a contract with a third person to maintain 
 ihe wife, and she voluntarily leaves such third person and without 
 any just cause, she carries no authority to pledge the credit of her 
 husband for her support. {Pidgin v. Oram, 8 W. H. R. 350.) 
 And any individual furnishing necessaries to the wife, while sup- 
 plied by such third person, cannot recover for them ; especially if 
 the husband had given public notice not to trust his wife. {Kim- 
 lall V. Keys, 11 Wend. B. 33.) Although the husband is not gen- 
 . erally liable for necessaries for his wife, when she is living apart 
 from him with an adequate allowance, yet for articles of the peace 
 against him, rendered necessary by his own violent conduct, he has 
 been compelled to pay. {Turner v. Bookes, 37 Eng. C. L. R. 35.) 
 He is not liable, however, for money lent the wife, to prosecute him 
 for an assault upon her. {Grindell v. Godjmond, 31 E-ng. C. L. R. 
 431.) Nor for the counterpart of the deed of separation. {LaddY. 
 Lyrni, 2 Mees. <& Wels. R. 265.) Neither is he liable to his wife's 
 attorney who prosecutes her suit against him for a divorce on the 
 ground of adultery. {Morrison v. Holt, 42 N. H. R. 478.) 
 
 § 230. If the husband take back his wife after a separation, 
 whether voluntary or justifiable, he is afterward liable for neces- 
 saries furnished to her. Even though she elope with an adulterer, 
 if she return to him and he take her back, he will be liable for 
 necessaries supplied to her, notwithstanding her former adultery. 
 In one case Lord Kenyon said that, " though an adulterous elope- 
 ment will prevent the husband from being liable for articles 
 famished to the wife during the time of her elopement, that is no 
 answer now. The husband has taken her back, and she was from 
 that time entitled to dower. She was sponte retracta, and of course 
 entitled to maintenance during coverture, if her husband turned 
 her out of doors." {Harris v. Morris, 4 Esp. Jf. P. Gas. 41.) 
 
 So it has been held by the American courts that when a wife 
 elopes from hfer husband without sufl5cient cause, and he is recon- 
 ciled to her afterward, his assent to her contracts for necessaries 
 thenceforward may be inferred by the . jury. {Henderson v. 
 Stringer, 2 Dana's [JEy.J R. 291.) It, has even been held, and 
 such is the law, that when the wife leaves her husband without 
 justifiable cause, if she keeps herself pure, she may return to her 
 
LIABILITY OF THE HUSBAND, 355 
 
 husband, and if he refuses to receive her, his liability upon her 
 contract for necessaries is revived from that time, notwithstanding 
 a general notice not to trust her. {MoOutohen v. McOaha/y, 11 
 Johns. R. 281.) And if application be made to a husband by a 
 third person, on behalf of the wife, to receive her, and he, without 
 questioning the authority of the person applying, puts his refusal on 
 other grounds, it will be equivalent to a personal application by the 
 ■wife herself. {MoOahayY. Williams, 12 Johns. B. 293.) The same 
 doctrine, that the husband is liable for the necessaries furnished to 
 his wife, if he refuse to receive her on her return after leaving him, 
 providing she has remained chaste, has been also recognized by the 
 courts of South Carolina. {Clement v. MatUson, 7 Bich. S., 93.) 
 
 The receiving of the wife back into his house by the husband, 
 after she has left him and lived away from him, is regarded as a 
 condonation or forgiveness of the offense by him ; and in such a 
 case it has been held that he becomes liable for her debts during 
 her essence. {Sail v. HaU, i JV.,M. B. 462. Qidnay v. Qumcy, 
 10 ib. 272. BoUson v. Gosnold, 6 Mod. JR. 171, case 247.) 
 
 § 231. It has been stated by the text writers, and justified by 
 ancient English authority, that while husband and wife live apart, 
 the husband's assent to her contracts for necessaries will be pre- 
 sumed unless the contrary appears. {Clancy on Husbamd and 
 Wife, 28.) And it has been held in two or three cases in the 
 American courts, that the husband's assent to the contract of his 
 wife for necessaries will be presumed where they live apart, and 
 that in such a case the burden of proof is upon the husband to 
 show, that the separation was not through his fault, and that 
 prima facie he is liable for the wife's necessaries when separated. 
 {Frost V. Willis, 13 Yt. JS. 202. Burnney v. Keyes, 1 If. H. B. 
 571.) This, however, is not the doctrine now held by the courts. 
 The husband's assent is presumed so long as he cohabits with his 
 wife, but while they live apart, the presumption is, that the hus- 
 band is not liable, and the circumstances fixing his liabihty must 
 be shown by the person seeking to charge him. {Bea v. Durhee, 
 26 III. B. 503.) 
 
 The authorities of the present day abundantly show that one 
 who gives credit for necessaries furnished to the wife while sepa- 
 rate from her husband, takes the risk of establishing a case against 
 the husband, and that the burden is on him to prove his case 
 {Cartvyright v. Bates, 1 Attends [Mass.] B. 614); or, that where the 
 
356 ZAW of COVERTURE. 
 
 demand arose after the wife had left her husband^ the burden is 
 upon the plaintiff of showing that the separation had been brought 
 about by the improper conduct of the husband. {Blowers v. Stur- 
 tevantji Denials B. 46, 49.) A wife living separate from her 
 husband has no iorvpUed authority to obtain credit for Jier husband. 
 {Gill Y. Bead, 5 B. I. B. 343.) Those who trust a wife who has 
 separated from her husband, do it at their peril. They must look 
 to the grounds of the separation. {Billing v. Pitcher, 7 B. Mon.' 
 B. 458. Beese v. Chilton, 26 Miss. B. 598.) 
 
 To support an action of assumpsit, for goods sold and delivered 
 to the wife while living apart from her husband, it is necessary to 
 /show affirmatively, first, the delivery of the goods ; second, that 
 the articles srtld were necessaries ; and, third, that the wife had 
 separated from the husband for a good and justifiable cause. 
 {Breinig v. MeitzUr, 23 Penn. B. 156.) If the parties cohabited 
 at the time of the sale, it would only be necessary, in the first 
 instance, to prove the delivery of the goods, and that they were 
 necessaries, and then the assent of the husband would be implied 
 from the fact of coverture, and he would be presumed to be liable. 
 But when there is a separation, and the parties live apart, the pre- 
 sumption is against the authority of the wife to make the purchase 
 upon the credit of the husband, rather than in favor of it. In all 
 cases where goods are supplied to a married woman, no^ living 
 with her husbamd, the burden is on the plaintiff to show that the 
 circumstances of the separation were such as to make the husband 
 liable in law, or that the wife had actual authority; for in the 
 absence of cohabitation, the presumption of law is agavnst his 
 lidbiMty even for the wife's necessai-ies. {Makiwaring v. Leslie, 
 12 Eng. O. L. B. 238. CUfford v. Laton, 14 il. 188. Edwards 
 V. Towels, 44 *5. 624. Bird v. Jones, 3 Man. cfe Byt B. 121. 
 Ozard v. Bamford, Selw. iV". P. 299. Walh&^ v. Simpson, 1 
 Watts & Serg. ]_Penn.'\ B. 83. Carey y. Patton, 2 Ashm. {Penn.} 
 B. 140. Burge v. Jones, T Law J. K. B. 59.) 
 
 § 232. As the law requires the husband to provide necessaries 
 for his wife, except he have a legal excuse for omitting that duty, 
 it becomes important to ascertain what articles are embraced 
 within the meaning of that term. In a general sense, the term 
 neoessaries means all such things as are proper and requisite for 
 the sustenance of man, and, to be more specific, embraces clothes, 
 meat, medicine and habitation, and, sometimes, legal advice, 
 
LIABILITY OF TSE BUSBAND. 357 
 
 although, to bind the husband, these provisions must be consistent, 
 not only with his rank, but, also, with his estate. Besides board 
 and lodging, necessaries are such articles as comport with the 
 wife's situation in life and her husband's fortune, and are usually- 
 worn or possessed by persons in similar conditions of life. {Ozard 
 V. Dumford, Selw. JV. P- 260. Dennys v. Sargeant, 25 Mig. O. 
 L. R. 504. 2 Bright^s JSusJxmd and Wife, 1.) Among the 
 articles held to be necessaries are board and lodging, medicines 
 and medical attendance, and reasonable expenses during illness. 
 {Harris v. Zee, 1 P. Wms. P. iSS.) And, in England, it has been 
 held that costs of the proctor employed by the wife to defend a 
 suit for a divorce, are embraced in the term. {Expa/rte Moore, 1 
 De Gex's P. 173. 14 Zaw Jour. [iV. &] 19.) But, in this country, it 
 has been held that the husband is not liable to the wife's attorney 
 who was employed to prosecute her suit against him for a divorce. 
 {Coffin V. Dunham, 8 Cush. [Mass.] P. 404.) Or, if the wife, who 
 is plaintiff in an action for a divorce, discontinues the suit, or is 
 defeated in it, and judgment is rendered against her, her husband 
 is not liable to her attorney for costs incurred by her ia the action. 
 {PMlUpa V. Simmons, 11 Abhotfs Pr. R. 287, and cases there 
 ,cited.) 
 
 When the wife is living apart from her husband, the proper mode 
 of determining what articles the wife may supply herself with, [ 
 at the expense of the husband, is to ascertain what a prudent woman 
 would expect, and a good husband would be willing to furnish, if 
 the parties were living harmoniously together, which question 
 would be most fairly dealt with by calling witnesses who know the 
 circumstances, style of living, and social position of the husband 
 and his family. And, as the solution of this question, in all cases, 
 depends, im,ter alia, upon the amount of the husband's estate, any 
 testimony which tends to give light upon the subject of the hus- 
 band's property, real or personal, will be received. {Breimg v. 
 Meitder, 23 Peim. P. 156.) 
 
 A physician's bill for necessary medical attendance upon a, wife, / 
 who has justly left her husband's house, may be recovered of the i 
 husband by the person who, at th e request o f the wife, employed j' 
 and paid the physician. There is no doubt but such medical attend- 
 ance is embraced within the class denominated necessaries, and ' 
 could be recovered of the husband by the physician who rendered ■ 
 the service ; and it has been held that the person who, kt the 
 
358 LAW OF COVERTURE. 
 
 request of the wife, employed and paid the physician, may recover 
 the amount paid. {Mayhew v. Thayer, 8 Oray's [MassacJvi(,setts\ 
 
 §232. aA claim for necessaries furnished to a married woman'' 
 during the time while she was prosecuting a libel for divorce, is 
 not discharged by a decree of court granting the divorce and 
 allowing alimony to her for her past and future expenses, although 
 the person who famished the necessaries was her father, and the 
 libel for divorce was prosecuted under his direction. (Dowe v. 
 Smith, 11 AUen^s [Mass.] S. 107. And vide also Keegan v. Smith, 
 11 Eng. C. L. R. 253.) This would seem to be a sensible rule, 
 for the reason that the husband is manifestly liable for the neces- 
 saries of his wife under such circumstances, and the fact that 
 alimony is allowed for past expenses does not remedy the matter, 
 because the person who furnished the necessaries has no claim on 
 the wife, and the presumption is that the court took that claim 
 into the account in fixing the alimony. 
 
 "What are to be Considered necessaries in each particular case, is 
 a question to be decided by the jury under the proper instructions 
 by the court. {Lane v. Ironmonger, 13 Mees. c& Wels. S. 368. Hea 
 V. Durkee, 25 III. R. 503.) "What are necessaries for the wife, is 
 a question that is susceptible of no sharp definition, and is gen- 
 erally a question for the jury under all the circumstances of the 
 case ; but the court may, in many cases, pronounce authoritatively 
 on the question and withhold it firom the jury. {Mahony v. Evans, 
 51 Penn. R. 80.) It has been held that articles of jewehy are 
 not necessaries for the wife of a special pleader. {Montagite-r. 
 Benedick, 3 Ba/m. <& Cress. R. 631.) Eut in one case, where a 
 tradesman furnished the wife of a sergeant, afterward a judge, 
 with lace and silver fringes for a petticoat and side-saddle, which 
 amounted to ninety-four pounds sterling, and all within four 
 months, they were held necessaries, and a verdict was found for 
 the plaintiflf. {Morton v. Within, Skin. R. 349.) 
 
 It may be remarked, though it would hardly seem necessary, 
 that the husband is not liable for necessaries furnished to his wife 
 during coverture, or while living apart, if the tradesman has agreed 
 not to charge him. {I>ixon v. HurreU, 34 Eng. C. L. R. 599.) 
 Neither is he liable when the dealing took place on the credit of 
 another. {Harvey v. Norton, 4 Jur. 42.) Nor when the trades- 
 man made out the invoices and accounts to the wife, and drew bills 
 
LIABILITY OF THE HUSBAND. 359 
 
 of exchange for her to accept. {Freestone v. Butcher, 38 Eng. G. 
 L. B. 375.) 
 
 § 233. A husband is sometimes held responsible for the torts and 
 g°Mas»i-criminal acts of the wife dm'^ing coverture; and in some 
 instances the wife is exempt from the consequences of her criminal 
 acts. Thus, in the State of Georgia, wh^n a feme-covert commits 
 a crime under threat, command or coercion of her husband, she is 
 not punishable for the offense, but the husband is punished in her 
 stead. {CoWs Laws, 1851, p. 779, § 1.) 
 
 So, a husband is answerable for a forfeiture under a penal statute 
 incurred by his wife. Thus, when the wife, in the absence of her 
 husband, and without his consent, sold liquors by retail, without a 
 license, the husband was held answerable in a qid tarn suit for the 
 penalty given by the statutes of New Tork. {Hasbrouch v. Weaver, 
 10 Johns. JR. 247.) In the State of South Carolina, it has been 
 held that, if the wife commit a tort in the presence of her husband, 
 the law regards it as his act, and in a civil action he alone is liable. 
 (Park V. HopJcins, 2 Bailey's R. 411.) 
 
 The rule that the husband is liable for the torts of the wife, com- 
 mitted during coverture, is understood to be as well settled in this 
 country as in England. {Wagner v. Bills, 19 Barb. B. 321.) 
 And the rule applies to torts committed both before and during 
 coverture. {Ma/wkes v. Hamar, 5 Binn. [Pa.'] B. 43. Knox v. 
 Pickett, 4 Deseua. R. 92. Palmer v. Wakefield, 3 Beani. R. 23. 
 Gox V. Hoffman, 4 Pev. c& Bait. R. 180.) If the tort was com- 
 mitted by the wife dum sola, it must appear that she is the wife 
 de jure, or the husband will not be liable. {Dwhelt v. Ellswell, 
 1 Ashm. R. 200.). The husband and wife should be joined as 
 co-defendants in an action for the tort of the wife, although it was 
 the sole act of the vrafe. {Matthews v. Friestil, 2 E. D. SmitKs 
 i?.90.) 
 
 The common law rule is that, if a feme^overt commit theft, 
 burglary or other civil offenses against the laws of society, by the 
 coercion of her husband, or even in his company, which the law 
 construes a coercion, she is not guilty of any crime, upon the theory 
 that she is acting by compulsion, and not of her own free will. 
 The presumption of coercion, however, does not arise unless the 
 husband is present when the offense is committed. If the wife 
 ■commit an offense alone without, the husband's concurrence, she 
 may be punished by way of indictment, without him. The law 
 
360 LAW OF COVEETUBB. 
 
 seems to protect tlie wife in all felonies committed by lier m com- 
 pany witli her husband, except murder and manslaughter. The 
 reason why she is excused in cases of burglary, larceny and the 
 like is, because it is supposed she cannot tell what property 
 the husband may claim in the goods. (4 BZaoh. Com. 28, 29, notes 
 10, 11, 12.) This, however, can only be considered the presimp- 
 Uon of law by reason of the presence of the husband when the 
 offense was committed. The more correct rule is, that if a felony 
 be shown to have been committed by the wife in the presence of 
 the husband, the prvma facie presumption is, that it was done by 
 his coercion ; but such presumption may be rebutted by proof that 
 the wife was the more active party, or by showing an incapacity to 
 coerce. (1 Bussell on Crimes, 22.) And whenever it appears that 
 the offense of the wife was committed under the coercion of the 
 husband, express or implied, the husband is responsible for 
 the offense. There is no legal presumption that acts done by a 
 wife in her husband's absence are done under his coercion or con- 
 trol. Indeed, if she commit a crime in the absence of her husband, 
 even by his order or procurement, her coverture will be no defense. 
 {Oommwwuoealth v. JButler, 1 AUerCs \Mass!\ M. 4.) And in all 
 cases, the presumption which the law raises when the acts com- 
 plained of are done by the wife in the presence of the hasband, 
 like other presumptions it may be repelled. {Wagner v. Mil, 17 
 Barb. B. 321, 325. Convmonwealth v. Lewis, 1 Meta. [Mass.l B. 
 151, 153.) It is not necessary to allege in the indictment against 
 a feme-c&oert, that the offense was not committed by the coercion 
 of her husband. {State v. Ndson, 29 Maine B. 329.) In the State 
 of Ohio, it has been held that if the wife join with the husband in 
 committing a crime less than murder, she is presumed to act under 
 the coercion of her husband, and in law is not guilty. {Da/ois v. 
 The State, 15 Ohio B. Y2.) This doctrine needs to be quahfied. 
 The presumption in such a case is, that the wife is under the coer- 
 cion of her husband ; but if the circumstances show that she acted 
 voluntarily and with a felonious intent, she is equally guilty with 
 her husband, and should be convicted. 
 
 It has been held in the State of Massachusetts, that the wife can- 
 not be indicted jointly with her husband, for a larceny. {Oom- 
 monwealth v. Trimmer, 1 Mass. B. 476. MarUn v. Commanwedth, 
 Ih. 390.) And the same doctrine has been held in the State of 
 Pennsylvania, ' {Permsyhania v. Lovell, Addison's B. 18.) But 
 
susbanb's interest in wiee^s pebsonaltt. 361 
 
 this is undoubtedly erroneous. There is no doubt that a wife may 
 be jointly indicted Avith her husband. The later authorities on the 
 point are too numerous to be withstood. Whether she can be con- 
 victed separately, or jointly with him, is a question to be deter- 
 mined by direct evidence, or legal presumption, concerning the 
 freedom of her action, or the coercion of her husband. ( Vide Com- 
 monwealth V. Murphy, 2 Gray's [Mass.] JR. 510. Wagner v. Bill, 
 19 Barh. B. 321. StaU v. ParTcersm, 1 StrdbhaH's \_S. C;] B. 169.) 
 
 The husband is liable for the penalty denounced against a toll- 
 gatherer by statute, for exacting and receiving more than the legal 
 tolls, though it be exacted and received at the gate by his wife. 
 So held, when it appeared that the toll was demanded and received 
 by the wife in the absence of her husband. (Ma/rselis v. Seaman, 
 21 Barb. B. 319.) This is upon the principle that the wife, in the 
 absence of her husband, is presumed to be his agent, and when she 
 demanded and received the toll, she was acting within the scope 
 of the employment, and her acts bound her husband. 
 
 Thus much upon the subject of the liabilities incurred by the 
 husband on account of the marriage ; the reason assigned for which 
 liabilities, at common law, is, that he is entitled to the rents and 
 profits of .the wife's real estate during coverture, and to the absolute 
 dominion over her personal property in possession, which wiU be 
 fuUv treated of hereafter. 
 
 CHAPTEE XX. 
 t 
 
 THE INTEEEST OF THE HUSBAJSTD DI THE WIFE S PERSONAL PEOPEETT 
 
 AT COMMON LAW HIS INTEEEST IN HEE PEESONAL PEOPEETT IN 
 
 POSSESSION — HIS INTEEEST IN PEESONAL ESTATE BELONOmO TO HEE 
 AS EXECUTEIX OE ADMINISTEATEIX — HIS INTEEEST IN HEE PEESONAL 
 PEOPEETT UNEECOVEEED AT THE TIME OF HEE DEATH — HIS INTEEEST 
 IN HEE CHATTELS EEAL. 
 
 § 234. At common law, marriage is an absolute gift to the hus- 
 band of the goods, chattels and personal estate of which the wife 
 was actually or beneficially possessed at the time of the marriage, 
 and of all such as shall come to her during coverture. This is the 
 doctrine clearly laid down by the text writers, and universally 
 sanctioned by judicial authority. (1 Bright on Husband and Wife, 
 36 
 
363 LAW OF COVERTimE. 
 
 34. Bvng. on Gov. 208. legg v. Legg, 8 Mass. B. 99. Howes v. 
 Bigelow, 13 t5. 384. TFwisZom; v. Crocker, 17 J/asme ^, 29. 
 ^y(?e V. Stone, ^ Cow. [iT. F.] B. 230. Blancha/rd v. Blood, 2 
 jBarJ. ^. 352. Morgan v. Thames Bank, 14 Cowra. ^. 99. J/a^ 
 for ^ Qramt, 2 xS'toy-y'a ^. 312. Hoskins v. JfiKe?-, 2 Z>e«. \_N. 0.] 
 i?. 360. EoAxikins v. CVotjr, 6 J/ow. [^y.] B. 257.) The husband, 
 therefore, becomes absolutely vested with all such personal prop- 
 erty of his wife as comes to her actaal_ possession during coverture, 
 so that he may make any disposition of it in his life-time without 
 her consent, or devise it by will, and such disposition of it will be 
 effectual, whether he survives her- or not ; and should he neglect to 
 dispose of it by will or otherwise in his life-time, it will go to 
 his executors or administrators, and not to the wife, though she. 
 survive him. And so rigid is this rule at common law, that though 
 the husband live separate from his wife, and in continued adultery, 
 his right to her jpersonal' property is still the same, so long as the 
 relation of husband and wife continues. {Co. Litt. 351 h. Rus- 
 sell V. Brooks, 7 Pick. B. 65. Turtle v. Muncy, ^ J. J. Ma/rsh. 
 \Ky.-\ B. 82.) 
 
 If chattels are bequeathed to a wife generally, without any 
 restriction, and are reduced to possession by the husband, with her 
 consent, they become his absolute property in equity as well as law. 
 {Shirley v. Shirley, 9 Paige's B. 363.) 
 
 But if personal property be not in the possession of the wife at 
 the time of the marriage, the husband must reduce it to his posses- 
 sion during coverture, in order to acquire an absolute title to it 
 and pass it to his representatives. {Ea/rly v. Sherwood, 1 Dudley's 
 [Geo.] B. 7. Mayfield v. Clifton, 3 Stewart's [Ala.] B. 375. 
 Hynes v. Lewis, 1 Taylor's [H. C] R. 44; Whithin v. Prasier, 
 1 Haywood's [if. C] B. 375. Byrne v. Stewart, 3 Dessau. [8. C] 
 R. 135. Wilkinson v, Perrin, 7 Man. B. 216, 246.) It has been 
 held, however, that a vested remainder in chattels, dependent on 
 a life estate, vests in the husband absolutely, and without any 
 reduction to possession. {Dade v. Alexander, 1 Wash. [ Va.] B. 
 30. Lowry v. Houston, 3 How. [Miss.] B. 394. Pincka/ri v. 
 Smith, 6 Litt. [Ky.] B. 331. Pattiny. Hall, 2 B. Mon. R. 462.) • 
 
 Where the wife has a legal estate in personal chattels, and the 
 right of immediate possession in severalty, the rights of the husband 
 will vest the property in him. {Savery v. Gardner, 1 Hill's [8. 
 C] R. 191.) 
 
SUSBAND S INTEREST IN WIFE'S PEBSONALTT. 363 
 
 A share of personal estate, accruing in the right of the wife 
 during coverture, vests, even before distribution is made, in the hus- 
 band absolutely, and does not in the event of his prior death 
 survive to the wife. {Griswold v. Penniman, 2 Corvn. H. 664.) 
 
 Money in the hands of a wife at the decease of her husband, 
 earned and received by her before the marriage, or given to .her by 
 her husband afterward, is the property of the husband, and passes 
 to his administrator. ( Washhume v. Hale, 10 Pick. B. 429.) 
 
 So far as regards creditors of either husband or wife, all the 
 money and other personal property of the family are presumed to 
 be the husband's, and all the earnings of the family, with some 
 exceptions, are conclusively so presumed. {WaVcer v. Peam/y, 36 
 Penn. R. 410.) 
 
 Notwithstanding the statutes -of Pennsylvania securing to 
 married women rights not guaranteed to them by the common law, 
 in 1853 it was declared that the husband was entitled to the person 
 and labor of his wife, and all the benefits of her industry and 
 economy. {Raybold v. Man/bold, 20 Pemt. P. 308.) 
 
 With respect to the rule that requires the husband to reduce his 
 wife's personal property to possession in order to hold it as his own, 
 it has been held that where a wife before marriage owned bank 
 stock, and her husband, after marriage, received the dividends 
 until the bank charter expired, at which time the stockholders 
 were entitled to take half the amount of their shares in shares of 
 a new bank, and the balance in money, and he subscribed the 
 authorized amount in the name of his wife, and refused to receive 
 the balance in money, saying it was not his, but his wife's, and such 
 balance was then passed to his credit, under the circumstances he 
 did not reduce the shares to his possession, and it was therefore 
 further held that after his decease his wife could recover of his 
 executor the said balance of money and the dividends received by 
 him, and a sum paid to him on account of the reduction of the 
 capital stock, with interest thereon. {Stcmwood v. Stanwood, 17 
 Mass. B. 57.) And it has been held in the surrogate's court of 
 the city and county of New Tork, that the husband's taking the 
 dividends of stock standing in the wife's name only, reduces the 
 dividends, and not the stock, into his possession. {Burr y. Sher- 
 wood, 3 Brad. B. 85.) 
 
 Money earned by the wife while the parties live apart belong 
 absolutely to the husband, at common law, irrespective of the cir- 
 
364 LAW OF COVEBTURH. 
 
 cumstances of their separation, so long as the marriage relation 
 continues between them. (Glover v. Proprietors of Drury Lane, 
 18 Eng. 0. L. B. 269. . Prescott v. Brown, 23 Maine R. 305.) 
 
 By the marriage the husband becomes the owner, not only of his 
 wife's personal property, but if they unite in selling her realty 
 and receive the money for it, this is his also; and if it is invested 
 in real estate, and the title taken to the husband, the estate is his. 
 {Ramsdall v. CraighUl, 9 Ohio R. 197.) It has, however, been 
 held in the State of Pennsylvania that where a wife allows a 
 mortgage for the purchase-money on the sale of her land, to be 
 given to herself and hiisband jointly, it is not sufficient evidence 
 of a gift by her to her husband to sustain his title to the same. 
 (Trimble r. Ries, 37 Penn. R. 448.) But in the State of Michigan, 
 it has been held that the wife's property can be acquired by the 
 husband only by gift or purchase, of which use or simple possession 
 is not sufficient evidence. This, however, is in some respects 
 different from the rule at common law. ( White v. Zane, 10 Mich. 
 R. 333.) 
 
 It has been held by the English chancery, on the principle that 
 marriage is a gift of the personal property of the wife to the hus- 
 band, that there is no difference between property to which the 
 wife is entitled in equity and property to which she is entitled at 
 law. (Osbpm v. Morgan, 41 JEng. Gh. R. 432.) 
 
 § 235. The marriage at common law, also vests in the husband 
 the personal chattels of his wife in the hands of a third person at 
 the time of the marriage ; and he may therefore bring detinue or 
 replevin for them without joining his wife in the action. (Powers 
 V. Marshall, 1 Sid. R. 172. Bowen v. Maitcdre, 1 Seiko. JF. P. 
 11th ed. 314.) Of course, if the chattels be converted subsequent to 
 the marriage, the husband may bring trover for them ; becanse 
 this supposes the property in the wife,' wliich by the marriage is 
 transferred to the husband, and therefore the conversion is a tort to 
 him alone. (Powers v. Marshall, supra. BlacMome v. Ch'Ofoes, 2 
 Lev. R. 107.) And though the husband and wife may in this 
 case join in the action as plaintiffs, yet they cannot allege the con- 
 Tersion to be to the damage of both, for the reason that the 
 property is in the husband alone. (Nelthorp v. Anderson, 1 Sail. 
 R. 114.) 
 
 In all cases where the wife's chattels come to the possession of 
 the husband an action in relation to them may be brought by the 
 
musband's interest in wife's fersonaltt. 365 
 
 husband alone, upon the general principle, " that that which 
 the husband may discharge alone and of which he may make dis- 
 position to his own use, for the recovery of which he may sue 
 without; his wifej" {Brett v. Oumberlwnd, 3 Buletrode's B. 164, 
 recognised, in McNeill v. Hollowa/y^ 1 Ba/rmxall & Alderson^s 
 B. 22i.) 
 
 § 236. As has been observed, marriage is an unqualified gift to 
 the husband of all the goods and personal chattels absolutely pos- 
 sessed by the wife at the time of the marriage, or which came to 
 her possession in her own right during coverture. But marriage 
 makes no such gift to the husband of the goods and chattels held 
 by the wife in autre droit, " in rights of another," as executrix, 
 administratrix or trustee, because such a gift would do injustice to 
 the creditors and next of kin of the testator or intestate ; besides, 
 the wife in such a case takes no beneficial interest in the property, 
 and therefore has none which the law can transfer to the husband. 
 (1 BrigMs Husbcmd and Wife, 39.) But as the husband will be 
 liable if his wife should misapply the funds which may be in her 
 hands as such executrix or administratrix, for his own safety he is 
 entitled to administer in such a case in his wife's right ; and as an 
 incident to this right he may dispose of the personal property and 
 effects vested in his wife as fexecutrix or administratrix, for the 
 benefit of the estate of the testato? or intestate. He may also 
 release debts owing to the estate of the testator or intestate, to 
 whom the wife is executrix or administratrix, (1 BrigMs Hus- 
 land and Wife, 40.) 
 
 After marriage the wife will not be permitted to administer 
 without the husband's consent, nor will payments made to her as 
 executrix or adrninistratrrx without his consent be valid. This 
 rule is for the protection of the husband, for the reason that he is 
 liable for the acts of his wife with respect to the trust. {Anony- 
 fnous, 1 Salk. B. 282.) In a late case, however, administration 
 was granted to the wife without her husband joining, she living 
 separate from him, and all right to the estate of the deceased 
 having been conveyed to her under a deed of separation, and no 
 particular objection is discovered to the practice in the particular 
 case. {In re Hardinge, 2 CvH. B. 640.) The common law rule 
 upon this subject of administration is sometimes modified by 
 statute, and in that case the liability of the husband and the powers 
 of the wife depend upon the. provisions of the statute. 
 
366 LAW OF COVMRTURE. 
 
 § 237. By the rule of the common law, if the husband survive 
 the wife he is entitled to all her personal estate which continued 
 in action or unrecovered at the time of her decease, and he may- 
 demand, recover and enjoy the same. This rule has its origin, not 
 in the fact that " the husband is the next and most lawful friend " 
 of his wife, but in the fact that jure mariti he is permitted to 
 administer upon her estate. {McOosTeer v. Golden, 1 Brad. Sur. 
 B. 64. Rcmsom r. Nichols, 22 N. Y. B. 110.) But, whatever 
 the origin of the rule, the doctrine of the common law is clear that 
 where the wife dies, leaving her husband surviving, the surplus 
 of her personal estate belongs, after the payment of her debts, to 
 her husband, and not to her next of kin. (2 JBlach. Com. 515. 
 Domwngton v. Mitchell, 1 OreerOs [iT. J!] Gh. B. 243. Lush v. 
 AlhurUs, 1 Brad. B. 456. Shvmiway v. Coojper, 16 Ba/rb. B. 556.) 
 And, if he does not take out letters of administration, he is equally 
 entitled to it. {filough v. Bond, 6 Jur. 50.) Or, should he die 
 before the same is recovered, it will go to his next of kin. For- 
 merly, however, in this latter contingency, the practice was to 
 grant letters of administration de bonis non admlnistrandis of her 
 estate, to the representatives of the wife, although the adminis- 
 trators were held to be trustees of what they received for the next 
 of kin of the husband. {Hwrrvphrey v. Bullen, 1 Atk. B. 458. 
 Elliott V. Collier, 3 ib. 526.) But this practice was found to be 
 inconvenient, as it was the only case where the rule was not 
 followed of uniting the administrative to the beneficial interest, 
 and the practice now is to grant such letters to the representatives 
 of the husband, even when he dies without taking out adminis- 
 tration to the wife, unless the wife leaves nothing to which the 
 husband can be entitled as her representative. {Fielder v. Hanger, 
 3 Sagg. Egg. B. 770. In re Mary Fountney, 4 ib. 289.) 
 
 If the husband dies, leaving assets of his wife unadministered, 
 they pass to his executors or administrators, as a part of his per- 
 sonal estate, and they need not take out letters of administration 
 on her estate. This is the rule, at common law, and it is expressly 
 incorporated into the statutes of most of the States. {Boosevelt v. 
 Mlithorp, 10 Faigis B. 415. Lockwood v. Stockholm,, 11 ib. 87.) 
 
 If administration de bonis non of the wife be granted to a third 
 person, he is a trustee for the representatives of the husband in 
 case of his death after the wife. {8g%db v. Wyn, 1 F. Wms. B. 378. 
 Cart V. Eees, Ib. 381. Whitaher v. Whitaher, 6 Johns. B. 112. 
 
busband's interest in wife's personalty. 367 
 
 Hendin t. Colgm, 4 Munf. B. 231. . Olarh t. Cla/rk, 6 Watts & 
 Serg. R. 85.) 
 
 If the husband, after the decease of his wife, without taking out 
 letters of administration, obtain possession of the wife's personal 
 property, he may retain it against his wife's next of kin. {Hendin 
 T. Colgin, supra.) And if the wife's next of kin administer, he will 
 be a trustee for the husband or his representative, if the husband 
 die before administering, as has been before intimated. (Stewart 
 V. Stewart, 7 Johns. Gh. B. 229. Betts v. Kimpton, 2 Ba/rn. c& 
 Adol. B. 273. Eknt^ v. Eallett, 1 Eden's Oh. B. 388.) 
 
 "When the husband has permitted his wife, without any marriage 
 contract, to retain possession and control of the personal property 
 she had before marriage, he is nevertheless entitled to administra- 
 tion upon her estate, and to retain the balance to his own use. 
 {Jones V. Brown, 37 iT. H. B. 439.) This follows as a matter of 
 course, from the right which he has at common law, and generally 
 by statute, to take and hold the goods and chattels in the wife's 
 possession during the joint lives of himself and wife, and after her 
 death if he survives her, as his administrator or otherwise, to take 
 and hold, reduce into his possession, and- recover absolutely for his 
 own use and benefit, subject to the payment of her debts, all of 
 her chattels and personal estate, which h« does not reduce into his 
 possession in her life-time, or which may not become his absolutely, 
 prior to his death, by being by her reduced into her possession ; 
 which is a vested right in the husband by the marriage in the life- 
 time of the wife. ( Vide Xalkmce v. Bausch, 28 Barb. B. 633. 
 Lee V. Wheeler, 4 Georgia B. 541. Westervelt v. Gregg, 12 N. 
 T. B. 206.) 
 
 A devise of real and personal property to a married woman for 
 her sole and separate use, " not to be liable for her husband's 
 debts, nor subject to curtesy or any life estate or marital rights," 
 does not exclude the husband from administration under the 
 intestate laws of Pennsylvania, and the same would probably be 
 the rule at common law. {Fa/ri^s Appeal, 23 Penn. B. 29. S. 
 C. 2 Am. Law Beg. 610.) 
 
 The representative of a second wife is not entitled to represent 
 the first wife, without citing the husband's next of kin, or their 
 renouncing. {In re SowerJy, 2 Curteis' B. 853.) 
 
 § 238. The husband, upon marriage, becomes possessed of the 
 chattels real of which the wife is or may be possessed during the 
 
368 - LAW OF COVERTURE. 
 
 marriage, although the law gives to him a qualified title only in 
 these ; that is an interest in his wife's right, with a power of alien- 
 ation during coverture. Chattels real are such as are annexed to 
 or savor of the realty, as terms for years of land, leases and mort- 
 gages, and the effect of marriage, at common law, is to vest in the 
 husband all these interests of the wife during coverture. If the 
 wife is seised of an estate of inheritance, her husband gains a title 
 to the rents and profits during their joint lives. {Jones v. Patter- 
 son, 11 Bar}. B. 672, Cla^ v. Stoughton, 10 Pioh. B. 463.) 
 The husband has the power, by the rule of the common law,. to 
 sell, assign, mortgage, or otherwise dispose of these interests as he 
 pleases, by an act in his life-time, without the consent or concur- 
 rence of his wife, except it be such an interest as the wife has by 
 the provision or consent of her husband, by way of settlement. 
 (2 KenGs Com. 134. Twrner's case, lYern. P. Y. Whiimarsh 
 V. Pobinson, 1 Coll. P. 671.) 
 
 It is said that an assignment of the real chattels of the wife by 
 the husband will bind her, though it be made without considera- 
 tion ; and if the wife has a judgment, and it is extended on an 
 elegit, the husband may assign it without consideration ; and if a 
 judgment is given in trust for a fenrbe-sole who marries, and, by 
 consent of her trustees, is in possession of the land extended, 
 the husband may assign over the extended interest. {Cateret v. 
 Pasohall, 3 P. Wms. P. 200.) 
 
 If a feme-sole has a decree to hold and enjoy lands until a debt 
 due to her is paid, and she is in possession of the land under the 
 decree, and marries, the husband may assign this interest with- 
 out consideration, without regard to his wife. {Merriweather v. 
 BrooTcer, 5 Litt. [Sy.] B. 256.) He may sell the usufructuary 
 estate in his wife's land without her concurrence. {Bailey v. 
 Duncan, 4 Mon. \Ky.\ i2.. 260.) And as the same rule of property 
 prevails in equity as at law in these cases, if the wife is entitled to 
 .7 a term for years held 'in trust for her benefit, the assignment or 
 alienation of it by her husband will bind her surviving him. 
 {Turner's case, supra. Tuder v. Samyne, 2 Vem. P. 270.) And 
 it has been held that the assignment of the wife's equitable chattels 
 real by the husband defeats her right by survivorship, though made 
 without consideration. {Cateret v, Paschall, 3 P. Wms. P. 200.) 
 However, the law now seems to be settled, that the assignment 
 must be for a valuable consideration, otherwise the right of the 
 
mrssANxI's interest in wife's pebsonaltt. 369 
 
 wife will not be disturbed. {Oox^s note to SquH v. Wyn, 1 P. 
 Wms. E. 380.) 
 
 If it be an equitable interest, and the husband should find it 
 necessary to have recourse to a court of equity to assert his right 
 to the term, as when it has been vested in trustees for the benefit 
 of the wife, still he may dispose of it as he wiU, unless the trust 
 has been created with his privity and consent. {Pitt v. Mwit, 1 
 Vern.B.1%.) 
 
 § 239. Chattels real, whether they are legal or equitable inter- 
 ests, are not choses in action, because they do not stand in need 
 of being reduced to possession, being in possession abeady, and 
 lying in action ; yet, if the husband do not transfer them in his 
 life-time, which he may by grant or demise, he cannot dispose of 
 them by will, and they will survive to the wife. {Mitfofd v. Mit- 
 f(yrA 9 Yes. B. 98. Clancy's Eus. and Wife, 9.) And if the 
 husband grant part of a term which he has in right of his wife, 
 this wiU not destroy her right of survivorship altogether, for if the 
 husband die in such a case, the wife will have the remainder. 
 {Sym's Case, Cro. EUz. 33.) 
 
 If the husband does not alien the chattels real of his wife, and 
 he survives her, the law gives them to him, not as representing his 
 wife, but in his marital right ; no administration, therefore, is neces- 
 sary to be taken out by him to her. ThuSj a man possessed of 
 lands for a term of nine hundred and ninety-nine years, granted 
 the term to a lady, and her .heirs immediately after the death 
 of the grantor, to hold the same to the lady grantee, and her heirs 
 to and for her and their own proper use foreverj and afterward 
 married the grantee, and the marriage took effect. The husband 
 survived the wife, and died without issue, intestate, and without 
 having taken out administration to his wife, administration was 
 taken out to him, and his administrator claimed the term. In the 
 mean time administration had been taken out to the deceased wife, 
 and her administrator also claimed the term. The court construed 
 the grant as a present gift to the wife in case she survived her hus- 
 band, to take effect in possession on that event, and held that the 
 term upon the death of the grantor went to his administrator, 
 and not to the administrator of the wife. In the course of the 
 consideration of the case, the doctrine was clearly brought out, 
 that if the husband do not alien the chattels real of his wife, and 
 he survives her, the law gives them to Mm, {Doe v. Polgrea/n, 
 47 
 
370 , LAW OF COVERTURE. 
 
 1 H. BloLckstonis R. 535. Vide also 1 BrigMs Husbcmd and 
 Wife, 95.) 
 
 § 240. If the wife has the right only to a term, the right will 
 not survive to the husband, but will belong to the wife's represent- 
 atives ; and if the wife be the survivor, and the term remains in 
 statu quo, she, and not her husband's next of kin, will be entitled 
 to theni. So if there be two single women joint tenants of a lease 
 for years, and one of them marries and dies, the term will survive 
 to the other joint tenant ; for although the chattels real are 
 given to the husband if he outlives his wife, yet the survivorship 
 between the joint tenants was the elder title, which was not 
 severed by the husband during coverture, marriage itself not having 
 that effect. This, of necessity, is an exception to the general rule. 
 (1 BrigMs Sus. and Wife, 95, and auihoriUes there cited.) When, 
 during coverture, a lease for years is granted to the wife, adverse 
 possession, which commences during coverture, may be treated as 
 adverse to the vdfe or to the husband. {Doe v. Wilkins, 5 JV^ev. 
 <Ss Man. E. 435.) The wife's remainder in leasehold property, 
 vested in interest, though not vested in possession, becomes her 
 husband's on marriage. {Matter of Lufe, 4 Edw. Ch. B. 395.) 
 
 The wife's chattels real may be taken on execution, and sold for 
 the debts of the husband, and, by this means, the title is transferred 
 by operation of law from the wife to the creditor of the husband. 
 {Reeves' Dom. Ret 22. 2 Kent's Com. 134. ■ Miller v. Williams, 
 1 P. Wms. R. 258.) 
 
 § 241. It seems to be settled that where the husband survives 
 his wife, and, upon that event, becomes entitled to her term for 
 years, he succeeds to them, subject to all charges and equities with 
 which they were affected in her possession, so that if the wife has 
 before marriage subjected her terms to an annuity, or other incum- 
 brance, and her husband, either after her marriage or after her 
 death, has renewed the leases, or surrendered the old, and taken 
 new leases, the incumbrances in equity will attach upon such new 
 leases, and the creditors will not be bound to contribute toward 
 fines or expenses, in consequence of the transactions. {Moody v 
 Matthews, 7 Ves. Jr. R. 174. Vide Winslow v. Tighe, 2 Ball & 
 Beat. R. 195. Stvhls v. Roth, lb. 548.) 
 
 If the husband is entitled to a term of years in his wife's right 
 as executrix or administratrix, and have the reversion in fee in 
 himself, the term will not be merged, because a man may have a 
 
SUSBAIW'S INTEREST IN WIFE'S PEMSONALTT. 371 
 
 freehold in his own right, and a term for years in autre droit; and 
 it seems essential to a merger that the term and the freehold 
 should vest in a person in one and the same right. (1 ^right's 
 Sitsbarid and Wife, 97, and authorities there cited.) As the hus- 
 band is entitled to administer in his wife's right, where she is 
 executrix or administratrix, he has a power of disposition over 
 terms for years vested in her in such right. {Arnold v. Bidgood, 
 Oro. Jao. 318.) So if a residue of a term of years be vested in the 
 wife, as administratrix, her husband may release it, and his release 
 would be good. {Lemch v. Coppin, 2 Wm. El. R. 801. 8. C. 
 3 Wils. B. 277.) 
 
 § 242. Should a wife, at the time of her marriage, be a lessee for 
 years, and her husband should take a lease of the land during the 
 lives of both him and his wife, that act would amount to a dispo- 
 sition of the term, and the rights of the wife, by survivorship, would 
 be thereby defeated, because, by the acceptance of the second lease, 
 the term would be surrendered by operation of law. (1 BrigMs 
 Husband amd Wife, 105.) So where a lease was granted to hus- 
 band' and wife for a term of years, and, after they entered, the 
 lessor enfeoffed the husband, who died seised during his wife's life, 
 it was held that this extinguished the term, and defeated the wife's 
 right of survivorship, for the reason that, by such acceptance, the 
 husband admitted the lessor's power to enter and make livery, 
 which he could not lawfully do during the continuance of the 
 term, so that, of necessity, this admission by the husband amounted 
 to a surrender of the term. {Downing v. Seymour, Oro. EUz. 912.) 
 
 If the husband mortgages the wife's term, as he may lawfully 
 do, and neglects to pay the money when due, the estate of the 
 mortgagee becomes absolute, and the wife's legal right by sur- 
 vivorship is defeated. ( Vide Radford v. Young, 4 Vin. Ahr. 50, 
 pi. 15.) But if the equity of redemption be reserved to the hus- 
 band and wife, she will be entitled to it by survivorship. {Pitt v. 
 Pitt, Turn. (& Buss. R. 180. Jackson v. Parlcer, AmUler'a B. 
 687. Ola/rTc v. Burgh, 2 Ool. N. G. O. 221. 9 Vw. 679.) 
 
 The husband's agreement to mortgage the wife's term will only 
 be enforced against her to the extent of the money due. {Bates v. 
 Bamdy, 2 Aik. B. 207.) 
 
 The husband may forfeit the term of his wife, and thus defeat 
 her right of survivorship, by his misconduct, as by committing 
 waste ; and, if he have a term of years in his own right, ■ and 
 
372 LAW OF COVERTURE. 
 
 another in right of his wife, his forfeiture will extend to and com- 
 prehend both the terms. (1 BrigMs Husband amd Wife, 110.) 
 
 These are among the acts other than express alienation, by which 
 the husband may divest his wife's chattels real, and defeat her 
 right by survivorship. 
 
 § 243. If the husband alone grant ah under-lease of his wife's 
 term of years, reserving a rent, that would be a good demise, and 
 bind the wife so long as the sub-demise continued, and in case of 
 the death of the husband before the wife, his executors would be 
 entitled, not only to the subsequent accruing rents, but to the 
 arrears due at his death, to the exclusion of the surviving wife ; 
 and the same rule would prevail in case the wife had been a party 
 to the under-lease, provided the rent was reserved to the husband 
 only, because the effect of the sub-demise and reservation was an 
 absolute disposition pro tanto of the wife's original term, which 
 she could not avoid, and the rent was the sole and absolute prop- 
 erty of the husband. But if the rent was reserved to husband and 
 wif6 in such a case, the surviving wife would be entitled to the 
 future rentSj and also to the arrears at her • husband's death ; 
 because, as they remained in action, and were due in respect of the 
 joint interest of the husband and wife in the term, they would, 
 ■with their principal, the term, survive to the wife. (1 BrigMs 
 Husbomdand WifeyAS, 44.) 
 
 If an-ears of rent accrued while the wife was single, and her 
 husband gave an acquittance for what became due after the mar- 
 riage, and then died, the discharge would prevent his wife from 
 recovering the arrears which were due at the time of the marriage, 
 tmless she could prove that the prior arrears remained unsatisfied. 
 If the husband's acquittance be under seal, then it will bar the 
 wife ; if not under seal, it is merely a presumptive bar. {MerUn 
 V. MopTcMhs, Dyer's R. 271.) 
 
 Such is the doctrine at common law with respect to the interest 
 which the husband has in the personal property of his wife, and in 
 her chattels real, and the leading common law principles which 
 apply to the subject. The changes which have been made by the 
 statutes of several of the states will be fully considered hereafter. 
 It ought to be stated, however, in this connection, that, although 
 the personal property belonging to the wife at the time of her 
 marriage, as a general rule, passes at once to the husband, under 
 and in virtue of the marriage, yet it sometimes happens that the 
 
wife's csoses in action. 373 
 
 marital right of the hushand is excluded by some express or 
 implied trust, for the sole and separate and exclusive benefit of 
 the •wife ; in which case the husband has no right to appropriate 
 the property to his own use. Such a trust may be contained in the 
 provisions of a settlement, or by a trust-deed, or by the will of a 
 third person; or the trust maybe implied from the very nature 
 and character of the gift itself. Gifts made after marriage by 
 third persons inay also be expressly given for the sole and separate 
 use of the wife, independent of her husband ; and when so given, 
 if the husband consents to her receiving the gifts, he and his cred- 
 itors are bound by the trust. This subject will be more especially 
 considered hereafter. But if there be no such, trust, then, as has 
 been suggested, the husband becomes entitled to the wife's per- 
 sonal property by the marriage, and immediately after the marriage 
 may appropriate the same to his own use {In the matter of 
 'Grant, 5 Law Beporter, 11), although there is a species of per- 
 sonal property given to the wife by third persons during coverture 
 which does not pass to the husband. For example, mourning 
 rings and the like, given by third persons to the wife since her 
 marriage, are, from their very nature and- charaetery purely per- 
 sonal, and, as memorials of the dead, and also of the affection of 
 the living, they are sacred, and cannot be touched either by the 
 husband or bv his creditors. {In the matter of Grant, sv^a.) 
 
 CHAPTEE XXI. 
 
 THE INTEEEST OF THE HTTSBAITO IN HIS WIFe's CHOSES VS ACTION IN 
 
 POSSESSION — THEIE EEDUCTION INTO POSSESSION BT THE HUSBAND 
 
 EFFECT OF JUDGMENTS AND DE0EEE8 IN VESTING THEM IN HUSBAND 
 
 SUEVrVOBSHIP OF WIFE, HOW BARBED HEE LEGACIES AND DIS- 
 
 TEIBUTIVE SHARES— HEE EQUITIES. 
 
 § 244. Maeeiaqe is only a qualified gift to the husband at com- 
 mon law, of the property of his wife, falKng under the description 
 of choBes in action, which comprises debts owing to her, promissory 
 notes, legacies, residuary personal estate and the like. This 
 species of personal property belongs to the husband by the mar- 
 riage, upon condition that he reduce it into his possession during 
 
374 LAW OF COVESTUBE. 
 
 coverture, and if he happens to die before his wife, without having 
 reduced such property into possession, she and not his personal 
 representatives will be entitled to it. {Screven v. JBhmt, 7 Ves. 
 JR. 294. Zcmgham v. N&wry, 3 ib. 467. Xitsmger's Estate, 2 
 Ashn. B. 456. Pomdexter v. BlacMm/rns, 1 IredeWs [iT. C] 
 Eg. R. 286. SnowMll v. Snowhill, Executor, 1 Green's [iT. J.] Ch. 
 B. 30. Biohards v. Bioha/rds, 22 Eng. 0. L. B. 119. GatersY. 
 Madeley, 6 Mees. S Wels. B. 423. Zegg v. Ze^^, 8 Mass. R. 
 99. Whitaher v. Whitaker, 6 JbAw«. ^. 112. Glasgow v. /SW J«, 
 3 (?a cfi JoAms. [i/iZ.] ^. 96, EMarist v, Killcrist, 1 How. 
 {Mass.} B. 311. ^m/5;s v. Marhsbury, 3 Zt«. [^y.] J?. 282.) 
 
 But at common law, the husband during coverture has the abso- 
 lute right to receive his wife's choses in action, and dispose of them 
 at pleasure, the same as though he became possessed of the same 
 by purchase ; and he may sue and collect them in his own name, 
 when they accrue during coverture, and in the name of himself 
 and wife, when they belonged to the vtdfe at the time of the mar- 
 riage, and when collected the avails are his absolute property. 
 {AuthoritMS cihove cited, cmd 2 Kenfs Com. 135.) 
 
 In the State of Pennsylvania, marriage has always been treated 
 as only a conditional gift of the wife's choses in action, or a gift to 
 the husband of her power to dispose of them to himself or any 
 one else, by force of the dominion to which he has succeeded as 
 the representative of her person, and because the gift is conditional 
 he has a right to reject it by refusing to perform the condition ; 
 and hence, clear proof that a husband received his wife's money 
 as a loan, or a disclaimer of intention to make it his own property, 
 proved by his admissions, will then preserve her rights of survivor- 
 ship. The rule that a gift always requires the assent of the donor 
 is held to apply in such a case. {Gochenaur's Estate, 23 Penn. B. 
 460.) And in the State of Ohio, it has been held that a promissory 
 note given to the wife before or during coverture, continues to be 
 the property of the wife until the assertion by the husband of his 
 marital rights. {Hoop v. PluTivmer, 14 Ohio St. B. 448.) 
 
 § 245. Upon this subject it was said by the chief justice in the 
 State of Kentucky, in a case involving several important questions 
 connected with it, that " the choses in action of the wife at the 
 time of her marriage vests in the husband sui modo only ; that 
 is on condition that he reduce them to possession, or otherwise 
 disnose of them effectually during coverture. If the wife survive, 
 
wife's csoses in action. 375 
 
 no sucli dispositon having been made, they survive to her ; "but if 
 the husband survive, he may be entitled to them as her adminis- 
 trator ; and the statute of distribution having been construed as 
 not applying to him, he may, therefore, after paying her debts, 
 appropriate them to his own use, whenever recovered by him as 
 her administrator. And hence it has been decided as a settled 
 doctrine, that if any other administer, the husband will be entitled 
 to the residue remaining sifter the debts of his wife are paid." And 
 it was further observed : " But as the wife has no legal capacity to 
 take in her own right during coverture, a chose in action which 
 accrues to her while she is covert vests absolutely and eo instanti, 
 in her husband by operation of law. And hence,- it was long 
 doubted whether, if she survived her husband, such a chose in 
 action would belong to her as survivor. It has been determined, 
 however, that in most cases it would." {Jonei AdmJmistrator v. 
 WcmrerHs AdmJmistrator, 4 Dana^s B. 333. Vide also Harris 
 V. Gul/oer, 9 B. Mon. B. 365. PhilisTcirk v. PlucTcwell, 2 Mamie 
 dsSelw. B. ^^Q.) 
 
 This doctrine is well settled at common law, and innumerable 
 authorities, both ancient and modern, might be referred to, in 
 which it is enunciated, but it is considered unnecessary. So rigid 
 is the rule, that it has been held that the wife cannot receive a 
 valid payment on her own choses in action, except as the agent of 
 her husband. {Thrasher v. TutUe, 22 Maine B. 335.) 
 
 § 246. The bare reduction into possession, by the husband of a 
 wife's choses in action, is not in all cases conclusive, though it is 
 pri/ma fade evidence of a conversion to his use ; but the pre- 
 sumption of interest may be repelled by proof that he held the 
 same, or the avails thereof, as her trustee, for which to be account- 
 able. {Hinds' Estate, 5 Wheat. B. 138.) Under such or similar 
 circumstances, an actual possession by the husband will not vest 
 him with the property, for he must have reduced it to his posses- 
 sion as husband, and not in any other capacity, as executor, 
 administrator, or trustee. {Mayfield v. OUfton, 3 Stew. B. 375. 
 Baher v. Hall, 12 Ves. B. 497. Well v. TomUnson, 16 ib. 413. 
 And vide Lodge v. Hamilton, 2 Serg. & Bowlegs -S. 491. Ms parte 
 Elers, 3 BessoM. \8. CJ\ B. 155. Sturgimeyer v. Harmah, 2 JSFott <& 
 McGwd^s [S. C] B. 147.) So, if he should receive her money as a 
 loan, he would not get an absolute title to it, and should his wife 
 survive him, her right to it would not be barred by her husband's 
 
376 LAW OF COVBBTUBE. 
 
 possession. {Gochemm's Estate, 23 Penm. B. 460, Oray'a Estate, 
 1«5.328.) 
 
 The right of the husband to reduce to possession his wife's 
 choses in action cannot be exercised by a guardian appointed over 
 him as an insane person ; and in such a case the property continues 
 vested in the wife. {Andover v. Merrimack Couniy, 37 iV. S. 
 R. 438.) 
 
 It has been said that the necessity of a reduction to possession, 
 in order to vest the wife's choses in action, applies only to such 
 rights as accrue hefore marriage, for if they accrue dwrmg cover- 
 ture, as notes made to her in her own name, according to the 
 American cases, they become the property of the husband abso^ 
 lutely, and on his death pass to his representatives, although the 
 wife survive him. {Samage v. King, 17 MaJme B. 301. Corrumon- 
 wealth V. Manly, 12 Pick. B. 173. Swan v. Grey, 1 Hayw. \N. 
 C] B. 3. Jones Y. Warren, 4 Donahs B. 333. ZitHe v. Marsh, 
 2 IrecL. Eg. B. 18. Cornwall v. Hoyt, 7 Conn. B. 420. Middldon 
 V. Mather, 15 t5. 598.) The rule, however, seems to be different 
 in England. There it would appear that a promissory note given 
 to the wife during coverture is not a personal chattel vesting in the 
 husband dbsolutely, and that such a note would survive to the wife 
 unless the husband by some act. reduced it to possession during 
 coverture ; and the same is the rule when the consideration was 
 advanced by the wife ; in that case, the note would survive to the 
 wife, except it be reduced to possession during coverture by the hus- 
 band. {VideGatersY.Madely,QMees.(&Wels. B.4SiB. Richards 
 V. Bicha/rds, 22 Ehg. 0. L. B. 121. Sca^rpUUni v. Atchesoh, 53 ib. 
 874.) . And it has been held in this country, that if the note is 
 paya,ble to husband and wife, unless collected during coverture, it 
 would survive to the wife in case of the death of the husband. 
 {Richardson v. Daggett, 4 Vt. R. 336. Draper v. Jackson, 16 Mass. 
 R. 480.) In the last case cited, Jackson, J., in delivering the 
 opinion of the court, said, " The question is, whether a note and 
 mortgage, made to a man and his wife shall, in case she survives 
 him, go to his administrator or his widow. In, considering this 
 question, we except the case of a voluntary gift by a husband to 
 his wife, as when he advances his own money or other property, 
 and takes for it a note or bond to himself and his wife. This, like 
 every other voluntary conveyance, would, without doubt, be void 
 as against the creditors of the husband. But when no such fact 
 
yriFE'S CHOSES IN ACTION. 377 
 
 appears, the law seems to require that the wife shall have the note 
 or bond if she survives." {Draper v. Jdolcson, 16 Mass. B. 482.) 
 
 § 247. The possession by the husband of the wife's choses "in 
 action is the possession of the wife. This must be so from the 
 fact that, in law, they are one person, and, vice versa, the possession 
 of the wife is the possession of the husband. {McIfeUl v. Arnold, 
 17Ark2i.l54:. Zeey. Matthews,10Ala.Ii. 682.) This principle 
 . has its application in the case of a security taken by a husband in 
 the name of his wife. TJnder such circumstances, it has been held 
 that the taking the security in her name, constitutes a gift, and its 
 retention in his custody is a delivery to him, and upon his death 
 it belongs to her ajjsolutely and not to his estate. {Sooti v. Simes, 
 10 Bosw. R. 314.) In one tof the cases hereinbefore cited, a note 
 was given to the wife during coverture. Parke, B., says : " When 
 a chose in action, such as a bond or note, is given to a feme-covert, 
 the husband may elect to let his wife have the benefit of it ; or, if 
 he thinks proper, he may take it himself; and if in this case a 
 husband had in his life-time brought an action upon the note in his 
 own name, that would have amounted to an election to take it 
 himself, and to an expression of dissent on his part to his wife's 
 having any interest in it.^ On the other hand, he may, if he please, 
 leave it as it is, and in that case the remedy on it survives to the 
 wife." ( Tates v. Madeley, 6 Mees. <& Wels. B. 423. Vide also 
 Sart V. Stephens, 6 Quee/rCs B. B. 937.) And in another of the 
 cases referred to, a feme-cove/rt, being an administratrix, received a 
 sum of money in her character of administratrix and lent it to her 
 husband, and took in return for it the joint and several promissory 
 note of her husband and two other persons, payable to her with 
 interest ; and the com-t held that, although the wife could not have 
 maintained an action on the note during the life-time of her hus- 
 band, the note was a chose in action surviving to the wife, and 
 that she could bring her action upon it on the death of her husband. 
 {Richards y. Micha/rds, 22 Eng. G. L. B. 119.) 
 
 In another case in the English courts, where the husband trans- 
 ferred two sums of bank annuities into the names of himself and 
 wife, and died in her life-time, the court held that the wife, surviv- 
 ing her husband, became absolutely entitled to the stock, there 
 being nothing to show that the husband intended that the transfers 
 should have any operation but what they legally had. (Bicmmer 
 V. Pitcher, 5 Simon's R. 35.) And still another and much older 
 48 
 
,378 LAW OF COVERTURE. 
 
 case may be cited, in which the husband had lent out money in the 
 names of himself and wife, upon bond and mortgage to him in 
 their joint names, and the court held that the wife must be 
 regarded as a joint purchaser and entitled to the securities by sur- 
 vivorship. {Ghrisis Hospital v. Bvdgm, 2 Vern. R. 683. Vide 
 also Wash V. Na^h, 1 Mad. O. G. 133.) These cases have been 
 held to be good authority by the courts of this country, and go to 
 show that a married woman is not disabled from being the bene-- 
 ficiary of a promise during coverture; she may be merely a 
 promisee for her husband's benefit during his Hfe, if he chooses to 
 enforce it. But if he neglects to do it, the moment she becomes 
 sui juris by the termination of the matrimonial relation, she can 
 enforce her rights in her own name. ( Yide Scott v. Simes, 10 
 Bosw. B. 814, 324. Oihson v. Todd, 1 Bawle's R. 455.) 
 
 § 248. It is sometimes an important question as to what con- 
 stitutes a reduction to possession of the wife's choses in action by 
 the husband. A mere intention to do so, or a simple appropriation 
 of the fund, will be insufficient. (Blunt v. BesUand, 5 Yes. R. 
 515.) So it is weU settled that the mere receipt of interest on the 
 wife's choses in action is not sufficient. {Hunt v. Stephens, 51 
 Eng. C. L. R. 939. StamAoood v. Stanwood, 17 Mass. R. 57. 
 Hunter v. Hallett, 1 Edw. Gh. R. 388.) Nor is the mere fact 
 that the husband joined with the wife in giving a receipt for the 
 principal sufficient. {Tmihres v. Katx, 6 Watts d; Serg. R. 290. 
 Yide Burnham v. Bennett, 9 Jur. 888.) The husband's taking the 
 dividends of stock standing in the wife's name only reduces the 
 dividends, and not the stock, into his possession. {Burr v. Sher- 
 wood, 3 Brad. R. 85.) 
 
 The acts to efiect the transfer must be such as to cliange the 
 property in the chose in action, or something which will divest the 
 wife's right, and make that of the husband absolute. It is under- 
 stood, however, that any act which clearly shows an intention on 
 the part of the husband to make use of the property as his own, as 
 mortgaging, releasing, taking a new security for the debt, procuring 
 a judgment in his own name, appointing another to receive the 
 amount, who actually receives it, is a sufficient act of ownei-ship to 
 reduce the property to the husband's possession, and bar the wife's 
 right. {Schuyler v. Hoyle, 5 Johns. Oh. R. 196. And vide 
 Stewa/rt^s Appeal, 3 Watts c& Serg. R. 376. Forrest v. Warrington, 
 2 Dessau. R. 2,54. Moelpir's Appeal, 2 Barr's R. 71.) Pledging 
 
WIFE'S CHOSES IN ACTION. . 379 
 
 the wife's note as security for a temporary loan is not eyidenee of 
 the husband's intention to appropriate it ; and a redemption of it 
 by him places it in all respects in statu quo. This is not such a 
 reduction of the note into the possession of the husband as will 
 destroy the wife's interest in it. ifTeither will the chose in action 
 be considered reduced by the husband to his possession merely by 
 having the actual possession of the instrument. It is necessary 
 that the money should be actually received by him, or by a third 
 person as his agent, for his use ; or that a judgment should be 
 recovered and an execution issued in the name of the husband and 
 wife, or in the name of the husband alone. {Latowrette v. Wil- 
 liama, 1 JBct/rb. H. 9. Vide also Hartman v. Dowdel, 1 Ha/wl^s B. 
 279.) But a legal or equitable assignment by the husband of the 
 wife's chose in action, for value, is such a reduction of the title into 
 possession as would bar the wife's right of survivorship ; and an 
 equitable assignment as collateral security for a present advance of 
 money defeats the wife's right of survivorship, though merely 
 pledging the chose in action does not have that effect. {Tritt v. 
 Colwell, 31 Perm. R. 228.) 
 
 § 249. If the husband receives the fund which was owing to the 
 wife, or if he, or he and his wife, authorize a person to receive it, 
 who actually obtains it, either of such modes of receipt will change 
 the wife's interest in the property, and will be a reduction of the 
 chose in action into the possession of the husband, divested of her 
 title to it upon surviving him ; and he may maintain an action..for 
 the money so received by the person authorized. (1 JSright's Mus- 
 land and Wife, 53, and authorities there cited). 
 
 "When the husband was a lunatic, the payment into court of the 
 wife's chose in action to the credit of the lunacy, was held to 
 amount to a reduction into possession. {In re Jenkins, 5 Buss. E. 
 183.) 
 
 The transfer of the wife's stock into the names of the husband 
 and another, in trust for the separate use of the wife, is not a 
 redaction of the property into the possession of the husband which 
 will entitle his representatives to hold it to the exclusion of his 
 wife surviving, for it is regarded as simply made dAverso vniniiter. 
 But a transfer of the wife's stock into her husband's sole name, will 
 be a reduction of it into his possession, and defeat the wife's right 
 by survivorship, because such a transfer is considered equivalent to 
 a receipt of the money by the husband, and an act vesting the 
 
380 , ZAW OF COVEBTUBE. 
 
 sole property in him. {WallY.Tomlmsoh,lQ Yes. R.HB.) An 
 assignment by the husband-, under the insolvent laws, vests in the 
 assignors the personal estate of the wife in action, unless the same 
 is secured to her as her separate property. But the assignee 
 takes the legal interest subject to the wife's right by sm-vivorship, 
 if the husband dies before the assignor has reduced such properly 
 to possession. The assignee also takes the assignment of the wife's 
 estate in action, subject to' her equitable claim thereon, for the sup- 
 port of herself and infant children, if she has no other sufficient 
 means for that purpose ; provided such claim is asserted by the wife^ 
 or a suit is instituted in a court of equity for the recovery of such 
 property, before the assignee has reduced it to possession. ' {Yan 
 Epps.Y. Yan Deusen, 4: Paige's Oh. R. 64^ Y3, 74. Harper \. 
 BamenhiU, 1 Tamil/yti^s li. 144. Pierce v. ThorneVy, 2 Sim. P:. 
 16T. Hermerr. Morton, Z' Puss. B. Qiy^Q. Steimmitz y . Sab- 
 thin,! Olyn(& Jameson^ s P. &L 2 JTeufs Oom. 193. Yide also 
 Miiford v. Mitford, 9 Yes. P. 87. Outcale v. Yan Winkle, 1 
 Green's Ck. B. 516. Mathemy y. Guess, 2 HiWs 18. C] Oh. B. 
 66. Sa/rtmam, v. Dowdel, 1 PawWs P. 279.) 
 
 The assignees of a bankrupt cannot maintain an action in their 
 own name in a chose in action,- made to the wife when sole. ( War- 
 rington y. Yates, 12 Mees. & Wels.'P.%b&.) 
 
 A voluntary assignment by the husband, without consideration, 
 is not a bar to the wife's right of survivorship. {Burnett v. Kinas- 
 ten, ,2 Yern. < B. 401. Judson v.; Moulson, 2 Atk. P. 420. 
 Caseoll V. Carroll, 11 WheatorHs P. 134. Parsons v. Parsons, 
 9 Jf. IT. P. 321.) 
 
 § 250. It would , seem from authority that the husband* cannot 
 assign the wife's contingent interest in a chose in action, even for a 
 valuable consideration, so as to deprive her of her right of survivor- 
 ship. {Terry v. Brandon, 1 Bich. Eg. P. 78. And vide Maywood 
 V. Johnston, 1 Sill's Oh, P. 228.) And in a case where the husband 
 and wife assigned for a valuable consideration a moiety of a share 
 of an ascertained fund in which the wife had a vested interest in 
 remainder, expectant on the death of a tenant for life, and the hus- 
 band died, the wife and tenant for life being still living, it was 
 held that she might claim the whole share, as against the assignee. 
 {Purden v. Jackson, 1 Buss. P. 1.) 
 
 In another case, the husband and wife assigned the interest in 
 certain; trust stock to which she would be entitled on the death of 
 
WIFJEPS CS08ES IN ACTION. 381 
 
 her mother, as a security for the payment of an annuity granted by 
 the husband. The husband afterward took the benefit of the insol- 
 vent debtor's act, and a general assignment of his property was 
 made under it. The wife's mother, on whose death the stock was 
 to be vested in her, died, and afterward the husband died without 
 having done any act, or instituted any proceedings, to reduce the 
 trust fund into possession. It was held that neither the assignee 
 under the insolvent debtor's act, nor the annuitant, was entitled to 
 the fund, bi^t that it belonged to the surviving wife. {H&rnsby v, Lee, 
 2 Mad. O. C. R. 16. And vide Mitford v. MUfmd, 9 Yes. B. 87.) 
 The same doctrine has been recognized as sound in a very late case 
 in England, and although it is du-ectly repugnant to several of the 
 older cases, the better opinion is, that the husband cannot possibly 
 make an assignment of the reversionary interest of his wife in a 
 chose in action, so as to bar the wife as survivor, provided the 
 interest contiaues reversionary until the death of the husband. 
 {Ashley v. Ashley, 1 Collyer's B. 553. Vide also ElUson v. Elwin, 
 13 Sim. R. 309, and Mwt&j v. WTight, 11 Yes. R. 19.) 
 
 § 251. It has been held that when the wife was entitled to a 
 reversionary interest in a fund, payment of it to the husband dur- 
 ing the life of the person on whose death she would be entitled to 
 it, amounted to a reduction into possession by the husband, so as 
 to bar his wife's right by survivorship. {Dowell v. Ea/rle, 12 Yes. 
 R. 473.) And it has been held that when the wife's reversionary 
 chose in action is expectant upon a prior life interest, the assign- 
 ment or surrender of the life interest to the wife will have the 
 effect of accelerating the reversionary interest, or converting it into 
 an immediate estate so as to enable the husband to reduce it into 
 possession. {LachtonY.Admns,^ La/w Jov/r. N. 8.ch.Z%2. Sail 
 ' ' V. Mugonvn, 14 Sim. R. 598. 16 Law Jour. N. S. ch. 14. 10 Jut. 
 940.) It seems, however, that no acceleration of the reversionary 
 interest will take place when the prior interest is vested in the hus- 
 band alone. (Richards v. Roberts, 3 Mad. R. 384.) And the 
 same doctrine seems to be held in case the interest is vested in 
 the husband and wife. (Hall v. Mugonim,, supra^ , It would seem 
 to follow from the authorities, that if the whole interest in the fund 
 by any means becomes vested in the wife, it may be reduced into 
 possession by the purchaser ; although Mr. Bright thinks the doc- 
 trine can hardly be considered as fully established. (1 BrigMs Hus. 
 and Wife, 60.) 
 
382 LAW OF COVERTURE. 
 
 § 252. The husband's taking a new security m the name of the 
 wife, for a debt due to her at the time of the marriage, is not such 
 a reducing of the debt into possession as to extinguish the wife's 
 right of survivorship. But if the husband receives the debt due to 
 the wife, or novates it by taking a new security for it in his own 
 name, the wife's right is extinguished, and the new security goes 
 to his representatives. {Sea/ring v. Searing, 9 Paige's Ch. B. 289.) 
 
 The bringing of a suit by the husband alone, to recover the pro- 
 ceeds of the sale of his wife's real estate, is such a reduction to 
 possession as will defeat the wife's estate, and this notwithstand- 
 ing the death of the husband after verdict but before judgment. 
 {Teneioh v. Flagg, 6 Dutch. [_N. J.'\ E. 25.) 
 
 When the consideration of a bond or other security proceeds 
 from the wife, or her estate, or when it is the gift of a third person 
 to her, and the husband does not collect the money or dispose of 
 the security, or proceed to judgment in his own name, in his life- 
 time, the security will go to the wife by survivorship. But if in 
 such a case, the husband elects to treat the security as his own, by 
 bringing suit in his own name only, the judgment recovered in his 
 hfe-time will belong to his estate, although the wife survives him. 
 It is otherwise, however, if he sues in the joint names of himself 
 and wife, and she survives him. {Moehring v. Mitchell, 1 Barb. 
 Ch. E. 624. Thompson v. ElUworth, lb. 624.) The naming or 
 not naming the wife in an action is attended with material conse- 
 quences in relation to this subject, for if she be a party and the hus- 
 band die after judgment, and before execution sued out, the judg- 
 ment will survive to her, and she wiU be entitled to enforce the 
 judgment. {Bond v. Sirmnons, 3 Atk. E. 21.) But if the action 
 be brought by the husband alone, and he die after judgment, his 
 representatives, and not the wife, will be entitled to the benefit of 
 the judgment. {Oglander v. Boston, 1 Vem. E. 396.) And costs 
 ordered by rule of court to be "paid to husband and wife, have been 
 held to survive to her. {Tiff v. Bartlett, Hammer's E. 104.) It 
 may be laid down as a general rule that in all cases where it is 
 necessary to bring the suit in the joint names of the husband and 
 wife during coverture, the cause of action survives to the wife for 
 her benefit. {Searing v. Searing, supra.) 
 
 § 253. A judgment obtained by the husband alone in this 
 respect being so much more advantageous for him, it may be 
 useful to inquire in what cases he may or may not sue without 
 
WIFE''a CB0SE8 IN ACTION. 383 
 
 making his wife a party. It may te considered a general rule at 
 common law that the hnshand may commence proceedings at law in 
 his own name only for all personal estate in actions which accrued 
 to his wife, or to her and him jointly, during coverture, and in 
 respect to all personal contracts or covenants made or entered into 
 with them during the marriage; because the rights of action 
 accrued after marriage, and the husband might disagree to the 
 wife's interest, and make his own absolute, an intention to do 
 which he manifests in bringing an action in his own name when 
 it might have been commenced in the names of both him and his 
 wife. {Gates v. Maddey, 6 Mees. cfc Wels. B. 427.) All of the 
 text writers agree upon this subject, and yet it may be convenient 
 to refer to a few cases where the rule has been held to apply. 
 
 If a bill or note be given to husband and wife, he alone may 
 bring an action for the recovery of the money due. {Shuttles- 
 worth V. Noyes, 8 Mass. H. 229. Barlow v. Bishop, 1 EasSs R. 
 432. Day v. Padrone, 2 Maule & Selw. B. 396. Howell v. 
 
 Mairie, 3 L&u. ^.*403. Copm v. , 2 P. Wms. B. 497. 
 
 Bwrrmtgh v. Moss, 21 Eng. O. L. B. 128. Aukerstem v. Gla/rke, 
 4 Term B. 616.) 
 
 The husband may sue alone on notes and bonds given to the 
 wife during coverture, as well as those given to him and wife. 
 {PhilUshirh v. Phichwell, 2 Maule db Selw. B. 393.) 
 
 So the action may be brought in the name of the husband alone, 
 on a contract or covenant to himself and wife. {Brown v. Zane, 2 
 Mod. B. 217.) 
 
 When the interest of the wife in the distributive portion of a 
 deceased person's estate accrues after marriage, the husband may 
 bring his action to recover it in his own name without joining the 
 wife. {Henderson v. Grey, 6 Smedes da Marsh. B. 209.) 
 
 It has been held in Massachusetts that a legacy accruing to the 
 wife either before or during coverture, may be recovered by the 
 husband in his own name. {Sopgood v. Houghton,^ 22 Pioh. B. 
 480.) But in the State of Kentucky, it was held that, in an action 
 to recover the wife's interest in a residuary devise, the husband 
 and wife must join. {Darnell v. Adams, 13 B. Mon. B. 273.) 
 
 A similar doctrine prevails in Ohio. In that state it has been 
 held that the husband cannot collect a legacy in his own right, 
 accruing to the wife during coverture, after the decease of the 
 wife. {Gurry v. Fulkinson, 14 Ohio B. 100.) 
 
384 LAW OF COVERTURE. 
 
 If husband and wife demise for years the wife's estate, reserving 
 a r6nt, the husband may bring his action alone for the recovery of 
 arrears. ' {Brown'y. Zone, 2 Mod. B. 21T.) 
 
 Where a lease is granted to husband and wife, and the husband 
 underlets, the wife need not be joined in the action against the 
 lessee for an injury to the reversion. ( WalUs v. Ea/rrison, 5 Mees. 
 (&Wel8.Ii.U2.) 
 
 The rents, issues and profits of a wife's real estate, which accrue 
 during coverture, belong absolutely to the husband, and, of course, 
 he need not join his wife in an action for their recovery. {Olapp 
 V. Sbuffhton, 10 Pick. B. 463. And vid6 Jones y. Patterson, 11 
 Ba/rb. B. 572.) There are many cases in which either the husband 
 may sue alone, or the husband and wife may join, and some of the 
 foregoing are cases of this kind ; and, in all these cases, if judgment 
 is recovered in the name of the husband, alone, the wife has no 
 right by survivorship; but, if the judgment be obtained in favor 
 of the husband and wife jointly, and the husl^nd dies before exe- 
 cution sued out, the judgment will survive to the wife, as has been 
 before stated. {Ante, § 252.) 
 
 .§ 254. Where an obligation or contract is taken to the husband 
 and wife, or to the wife alone, with the assent of the husband, the 
 action survives to the wife, who is entitled to the proceeds, as 
 against the heirs and personal representatives of the husband. In 
 such a case the form of the security implies a design by the hus- 
 band to benefit the wife, and the law will give effect to this inten- 
 tion when the interest of creditors is. not affected. Indeed^ an 
 agreement with a feme-covert, and a promise to her, personally, 
 raises the presumption that she is the meritorious cause of such 
 agreement, and it will' survive to her. This is held to be the rule 
 at law, as well as equity. {Borst v. Spelman, ^ N. Y. R. 284. 
 Drojper v. Jachsm, 16 Mam. B. 483, 486.) 
 
 Where a husband, as a consideration for his wife's joining in his 
 deed of his own land, permitted her to invest a part of the pur- 
 chase-money in her own name, and assented that she treat it as her 
 own, and reinvest it in her own name, money belonging to her 
 before marriage, it was held that she took all the securities by sur- 
 vivorship. {Searing v. Searing, 9 Paige^s Gh. B. 283.) 
 
 Where a lease is executed, by husband and wife, of land in which 
 the wife has an estate for life, arid the lessee covenants, in turn, 
 to pay rent to both, this, of itself, is sufficient to entitle the hus- 
 
wife's GROSES IN ACTION. 885 
 
 band and wife to join in an action for the rent, notwithstanding 
 the wife did not acknowledge the execution of the lease, and, 
 therefore, was not bound by it. And, it is held, that one effect of 
 uniting the wife in such an action is, that upon the death of the 
 husband his interest in the cause of action survives to the wife, and 
 no interest vests in the personal representatives of the husband. 
 By uniting the wife, the husband signifies his assent to giving her 
 such an interest in the cause of action, and he thereby vests the 
 wife with his interest, in the event of his death. {Jacques v. 
 Short, 20 Barb. B. 269.) So when money is secured to the hus- 
 band and wife by a promissory note, or certificate of deposit, no 
 other facts appearing, the wife is held to be entitled to survivor- 
 ship in the money. {Orphan Asylwm, v. Sbridn, 2 Bradf. B. 34:.) 
 And so, also, an agreement to pay to husband and wife, during the 
 life of the longest liver, a given sum, survives to the wife after the 
 death of the husband, and it is held that she may assign it. {Prin>- 
 die V. Garuthers, 15 N. Y. B. 425. Yide also Pike v. GolUns, 
 23 Mame B. 38. StMckey v. Keefe'a Exr. 26 Pmn. B. 397. Tor- 
 rey v. Torrey, 4 Yern. B. 430.) 
 
 § 255. All legacies to the wife, and distributive shares in an 
 intestate's estate, which accrue to the wife during coverture, at com- 
 mon law, become the absolute property of the husband, if reduced 
 to possession in his life-time, the same as the other choses in action 
 of the wife. {Cera v. Taylor, 10 Yes. B. 578. LampTmiy. Creed, 
 8 ib. 599. Oarforth v. Bradley, 2 Yes. Sen. B. 675. ■ Palmer v. Tre- 
 vor, 1 Yern. B. 261. Schwyler v. Hoyle, 5 Johns. Ch. B. 196. 
 Tucker v. Gordon, ^ N. S. B. 564. Ha^pgood v. Houghton, 22 
 Pick. B. 480. Godda/rd v. Johnson, 14: ib. 352. Say ward v. May- 
 ward, 20 a. 517. Cannon v. Ulmer, 1 Bai. [S. C] Eg. B.20i. 
 Bevel V. Bevel, 2 Pev. <& Bait. B. 272. GaUeyo v. Galleyo, 2 Brock. 
 B. 285. Adams v. Jji/rendon, McC. & You. B. 41. Poindexter v. 
 Blackbwm, 1 Ired. Eg. B. 286. Ewrdell v. CoUen, ib. 61. Gliftmi. 
 V. Haig, 4 Dessau. B. 330. FUury v. Bak&r, 2 Barr's B. 470. 
 Boss V, Wharton, 10 Yerg. ITenn.} B. 190. Wmtercast v. Smith, 
 4 Bawle's B. 177. Snowkill v. Snowhill, 1 Greenes Ch. B. 30.) 
 
 As there are some principles peculiar to this branch of the 
 subject, it may be well to refer to some points settled by the 
 authorities in relation to the wife's legacies and distributive shares. 
 
 A legacy to the wife will not pass by an assignment of the hus 
 band, for the benefit of his creditors, of all his personal property 
 49 
 
386 ZAW OF COVHSTVSE. 
 
 in possession or in action. {Shmner's Appeal, 5 Ba/rr's B. 262.) 
 Some authorities hold, however, that such legacies or distributive 
 shares vest absolutely in the husband, without any reduction to 
 possession, and that the husband may sue for them in his own 
 right, either before or after his wife's death. {Commonwealth v. 
 Manly, 12 PicTc. B. 1Y3. Oodda/rd v. Johnson, 14 Pick. B. 352. 
 Bapgood v. Boughton, 22 ib. 480. Griswold v. Penniman, 2 Conn. 
 B. 564. Morgan v. T/iames Bank, 14 ib. 102. Ea/rly v. Sherwood, 
 
 1 Dud. {_Geo.'] B. 7. Lowry v. Houston, 3 J^ow. \_Mi8s.] B. 224. 
 TFffltZe v. Crimes, 6 *5. 425. McGee v. i^c^yc?, 2 Smedes c& Marsh. 
 [Miss.] B. 769.) But the better opinion is, that unless such legacies 
 or distributive shares are reduced to possession by the husband dur- 
 ing coverture, they survive to the wife. {Mayward v. Haywa/rd, 
 supra. Curry v. Fulkinson, 14 Ohio B. 100. Wheeler v. Moore, 
 13 iT. H. B. 159. Parsons v. Pa/rsons, 9 t5. S21. Ma/rston v. 
 Ca?-for, 12 ih. 159. TTaZtoce v. Taliaferro, 2 (7aZ^V [Fa.J ^. 
 447. Harleston v. Lynch, 1 Dessau. B. 244. CUfton v. ^a^, 4 *J. 
 330. Harper v. Archer, 8 Smedes <& Marsh. B. 229. Oalleyo v. 
 Galleyo, supra. Bevel v. ^e^eZ, 2 iJe-y. <£ ^a^. -ff. 272. Schvyl&r 
 V. ^oyZe, 5 JbAns. CA. ^. 196.) 
 
 In some of the states it has been held, that such legacies and dis- 
 tributive shares may be attached by the husband's creditors, even 
 before distribution is made. ( Wheeler v. Bowe, 20 Pick. B. 663. 
 Holbrook v. Waters, 19 ih. 354. Griswold v. Penniman, supra) 
 But the doctrine has been in other states expressly condemned as 
 unsound, and the contrary rule is confidently asserted. ( Wheeler v. 
 Moore, supra. Short v. Moore, 10 Vt. B. 446. Dennison v. Nigh, 
 
 2 Watfs B. 90. Bohinson v. FbeZw^e?-, 1 Wharton's B. 179. ^*% 
 V. Haggim,, Z J. J. Marsh. [By.] B. 215.) And in Massachusetts 
 it is held, that if the husband die before judgment, the wife's right 
 of survivorship is not barred. {Strong v. Smith, 1 Mete. B. 476.) 
 After a decree of distribution, undoubtedly such share would be 
 absolutely in the husband, and could be attached by his creditors.- 
 {Parks V. Cushman, 9 Vt. B. 320.) But no action at law can be 
 sustained by the husband, or his assignee, either in his own name, 
 or by joining the wife, to recover such share ; the only remedy is 
 in chancery. {Howard v. Brown, 11 Vt. B. 361. And vide Ding, 
 on Cov. 209, note 5, where the authorities on the subject are cited.) 
 
 Payment of a legacy bequeathed to the wife generally, and not 
 given to her separate use, to the wife, without the authority of the 
 
wife'.s ci{os£;s in action. 387. 
 
 husband, express or implied, will be void as to bim. {Palmer y. 
 Trevor, Ij Vem. H. 261. Moses t. Levi, 3 Younge db Collyer's Ex. 
 R. 359. JVorris v. Hemingway, 1 Hagg. Eco. E. 5.) 
 
 § 256. Decrees so far resemble judgments at law in respect to 
 tbose matters, that until tbe money be ordered to be paid, or 
 declared to belong to the husband, the wife's right will remain 
 undisturbed; and as a joint judgment will remain to the wife if 
 her husband die before execution is awarded, so will a joint decree 
 until an order for payment, or declaring the money to belong to 
 the husband. (1 BrigMs 3ui>and and Wife, 6Y. MoOoMley v. 
 Phillips, 4 Yes. B. 15. Mv/rrayy. Elibank, 10 ih. 84. Nanney v. 
 MarUn, 3 Aik. B. 726. Forbes v. Phijpps, 1 Edwa/rd's Oh. B. 502.) 
 
 An award has not the effect of changing the property in chat- 
 tels personal of the wife into the husband. Unless the award is 
 carried into effect by some act amounting to a reduction into 
 possession of the choses in action of the wife, the wife siu'viving 
 the husband will not be bound. {Hunter v. Bice, 15 EasCs B. 100. 
 Thorpe v. Eyre, 1 Ad. & El. B. 926.) 
 
 § 257. Some general principles on which the rights of survivor- 
 ship in these cases depend, have been succinctly stated thus : " The 
 husband, by marriage, acquires a right to the use of the real estate 
 of the wife during her life ; and if they have a child born alive, 
 then, if he survives, during his life, as tenant' by the curtesy, he 
 acquires an absolute right to the chattels real, and may dispose of 
 them. If he does not dispose of them, and survives his wife, they 
 survive to him ; but if she outlives her husband, they survive to 
 her. He acquires an absolute property in her chattels personal in 
 her possession ; but as to her choses vn action, he may maintain a 
 suit jointly with her to recover them, and if he reduces them to 
 possession during coverture, they become his, otherwise they sur- 
 vive to the wife if she outlives him, or to her administrator if she 
 does not. As to the property accruing during coverture, the same 
 rule is applicable except in regard to choses in action. These vest 
 absolutely in the husband, on the principle that the husband and 
 wife are but one in law, and her existence, in legal consideration, 
 is merged in his. He may, in such cases, bring a suit in his own 
 name without joining his wife. This clearly proves that the choses 
 in action vest in him absolutely; for if the right was in the wife, 
 she must necessarily join in the suit. When a bond or note is 
 given to the wife, the husband can maintain an action in his own 
 
388 LAW OP COVERTURE. 
 
 name. The consequence then is, that if the husband die before 
 the wife, such chases m action shall go to his executor or admin- 
 istrator, and they do not survive to the wife, for when the property 
 has been absolutely vested there can be no survivorship. 
 
 " It is true, in certain cases, when claims originate during cover- 
 ture, the husband may sue in his own name, or may join with the 
 wife, as for rents issuing out of her real estate, or when she is 
 the meritorious cause of action; and then, if the husband die 
 while the suit is pending, or after judgment and before it is satis- 
 fied, the interest in the cause of action will survive to her, and not 
 to the executor of the husband, though if he had sued alone she 
 would have had no interest. But this, so far from proving that 
 if no suit had been brottght the choses in action would survive to 
 the wife, proves directly the contrary. For in this case the 
 joinder of the wife ia the suit was the ground of the survivorship. 
 It is agreeing to and recognizirig her interest by the husband, aad 
 may be considered in the nature of a grant to her ; and for this 
 reason the suit or judgment may survive to her. That when no 
 act is done by the husband, when no suit is brought or judgment 
 rendered in favor of both, his separate absolute iaterest continues, 
 and can never survive to the wife." {Griswold v. Pennington, 2 
 Conn. B. 565.) 
 
 Choses in action of the wife not reduced to possession by the 
 husband, survive to the wife after his death; and if she dies 
 before she reduces such choses in action to possession, they go to 
 her next of kin, iand not to the representatives of her deceased 
 husband. In Ohio, the husband is not the next of kin of his wife. 
 (Dixon V. Dixon, 18 Ohio R. 113. Needles v. Needles, t Ohio St. 
 B. 432. Hoop V. Plummer, 14 ib. 448.) It may be afiSrmed, 
 however, that at common law, a husband is entitled to the personal 
 property and choses in action of his wife, and they are vested in 
 him at her death, whether reduced to possession or not, in virtue 
 of his marital rights, and not of his rights to administration. 
 {Ryder v, Hvlse, 24 N. T. R. 372.) 
 
 § 258. In order that the wife's right of survivorship to her choses 
 in action inay be barred, they must be recovered by the husband 
 during the coverture, whether they are legal or equitable ; and yet 
 there is a difiPerence betweeu a wife's legal and equitable choses in 
 action which ought to be noticed. In cases where it is necessary 
 for ttfe husband or his assignees to have recourse to equity, that 
 
wife's csoses in action. 389 
 
 jurisdiction ■will not give its assistance except upon the terms that a 
 provision is secured out of the fund for the wife. In other words, 
 a coiu-t of equity will not aid either the husband or his assignees 
 to recover the wife's choses in action, unless a suitable provision is 
 made from them for the wife. {Duvall v. Fwrmeri Bwnh, 4 QUI 
 da Johns. [Md.l E. 282. Whitesides v. Dams, 1 Demo's [J^y.] B. 
 107. Tioer v. Richardson, 7 Mon. E. 660. Faber v. Golden, 1 
 Paige's Ch. E. 166. Yam Epps v. Van Deuaen, 4: ib. 64. 
 McElhatten v. SbweU, 4 JSayw. ITerm.] E. 19. Duer v. Boyer, 
 2 MoCorcPs Ch. E. 368. liTorris v. Lam, 18 Md. E. 260.) 
 
 In one case quite recently decided in the English chancery, the 
 vice-chancellor said: "Marriage is a gift to the husband pf all 
 the persoilal property to which the wife is entitled in possession, 
 and of all the personal property to which she may become entitled, 
 subject only to the conditions of his reducing it into possession dur- 
 ing the coverture ; and I am aware of no distinction in this respect 
 between property to which the wife is entitled in equity, and prop- 
 erty to which she is entitled at law. !N"or upon principle can there 
 be any distinction, the rule resting, as I conceive, upon this — ^that 
 the husband and wife are in law one person — a rule which prevails 
 in equity as much as at law. The wife's equity for a settlement, 
 therefore, does not depend upon any right of property in her, and 
 that it does not depend upon any such right of property is the 
 more clear when it is considered to what limitation it is subject. 
 The amount is discretionary in the court| and if the wife insists 
 upon it, she must claim it for herself and her children, and not for 
 herself alone — ^limitations which are wholly inconsistent with a 
 right of property in her. 
 
 " The right, then, being thus independent of property, there 
 seems to be no ground on which it can rest, except the control 
 which courts of equity exercise over property falling under theii 
 dominion. . It is, in truth, the mere creature of a court of equity, 
 deduced, as I conceive, originally, when the husband si,ied, from 
 the rule that he who comes into equity must, do equity ; a-nd sub- 
 sequently extended to suits by the trustees and the wife, probably 
 from the necessity of the court administering the trust, whether 
 the husband thought proper to sue or not, We must consider, 
 then, when this obligation of doing equity is enforced by the court. 
 It is not upon the bill filed ; for the bill may be afterward dis- 
 missed. It is not, as I think, upon the decree being made, when 
 
390 ZAW OF COVERTURE. 
 
 the plaintiff's interest is in reversion ; for in such cases the court 
 only deals with the interest in possession. It is, I think, when the 
 property comes to be distributed ; for then, and. not till then, in 
 ordinary cases, does the court enforce obligations attaching upon 
 the property otherwise than by contract. This right to a settle- 
 ment, therefore, I take to be an obligation which the court fastens, 
 not upon the property, but upon the right to receive it, and that 
 this is the case is, I think, the more clear from this consideration : 
 if the right attaches at all, it must attach with ^11 its incidents. 
 One of its incidents is, that the wife waiving it must waive it by 
 her consent in court ; but it is now settled that the court cannot 
 take her consent to part with her reversionary interest." {Osborn 
 V. Morgan, 9 Hare's B. 432, 433, 434. S. C. 41 Eng. Ch. R. 431.) 
 
 In another much earlier case. Sir "William Grant, speaking of 
 this right, says the ordinary occasion for it is, " where the husband 
 applies to have paid to him money that belongs presently and 
 immediately to his wife." ( WoollMnds v. Crowcher, 12 Ves. R. 174.) 
 And Sir John Leach is yet more distinct, for he says, " My opinion 
 is, that a wife, by her consent in a court of equity, can only depart 
 with that interest which is the creature of a court of equity — ^the 
 right which she has in a court of equity to claim a provision by 
 way of settlement on herself and children out of that property 
 which the husband at law would take in possession in her right. 
 Her equity arises upon his legal right to present possession. This 
 principle has no application to a remainder or reversion ; when the 
 remainder or reversion falls into possession, then the equity arises. 
 If the ■v^ife, by her consent, could pass a remainder or reversion in 
 personal property to her husband, she would not only part with a 
 future possible equity, but with her chance of possessing the whole 
 property by sui-viving her husband 5 and to give this effect to her 
 consent, could make it analogous to a fine at law with respect to 
 real estate — a principle always disclaimed in a court of equity. A 
 court of equity interferes to protect the property of the wife against 
 the legal rights of the husband, and will never lend itself as an 
 instrument to enable the husband to acquire a right in the wife's 
 personal property, which he can by no means acquire at law." 
 (JPickwrd v. Roberts, 3 Madd. R. 384.) 
 
 The whole doctrine of the wife's settlement out of her personal 
 property in equity, has recently undergone considerable discussion ' 
 and criticism in the English courts, and, although generally recog- 
 
wife's csoses in action. 391 
 
 nized, it is regarded as an " innovation on the common law rights 
 of the husband, which has been introduced by a process of judicial 
 legislation, carried through many years, and that in its application 
 it involves many cm-ious anomoHes." ( Wallace v. Auldejo, 9 Jur. 
 [iV^. S.} B. 687.) 
 
 Upon this subject it was said in the late court of errors of the 
 State of New York : "It is not disputed that a husband,. in virtue 
 of his marriage, becomes absolute owner of the goods and chattels 
 of his wife ; and may, consequently, dispose of them, including 
 not only her choses in possession, but in action, when the latter are 
 reduced into possession. And the authorities go so far as to say, 
 that if the husband can obtain possession of the wife's choses in 
 action, without the aid of a court of chancery, he will be permitted 
 to do so, and then to dispose of them at his discretion. But when 
 the property of the wife is imder the care of the court, and the 
 husband cannot enjoy it without the authority of the court, care 
 will be taken that before it is placed at the husband's disposal a 
 suitable provision shall be made out of it for the wife's support. 
 That the general assignees of the husband stand in no better situa- 
 tion than the husband himself, admits of no dispute." 
 
 The result of the case established the following propositions : 
 
 1. That the wife has an undoubted right to an adequate provision 
 for her and her children, if any, out of her equitable property, as 
 against her husband or any assignee of the husband. And when 
 it is necessary to come into a court of equity for its aid in obtain- 
 ing possession of such property, the court will see that proper 
 provision is made. 
 
 2. That though, in general, a husband who lives with and main- 
 tains lis wife is entitled to receive the dividends or interest of her 
 estate^ yet when the husband deserts his wife, or neglects or 
 refuses to provide for and maintain her, or where he has misbe- 
 haved himself, or shown a total incapacity to manage his concerns, 
 or a disposition wantonly to waste his wife's property, in such cases 
 the court ought to direct the interest to be paid either to the wife 
 or to a trustee for her benefit. ( JJdall v. Eernney, 3 Cma. R. 690, 
 599, 609.) 
 
 In regard to' this authority it has been well said, that it "pre- 
 sents a striking instance of the healthful influence of a court of 
 chancery, in guarding the rights of the helpless and unprotected, 
 and it is hoped this question is finally put at rest." {Beeve^s Dom^ 
 
392 ZAW OF COVERTVBE. 
 
 Bel. 1862, p. 70, note 1, Vide also Eamon v. Keating, 4 Eare^s^ 
 R 1.) 
 
 It hag been held, however, that this rule in equity will not 
 obtain when the wife lives apart from her husband without cause, 
 or if she has a sufficient provision from any source. (J^ry v. My, 
 7 Pa/ige's Gh. B. 462. Mwrtm v. Martin, 1 Eof. Oh. B. 462.) 
 
 The wife's equity may be extended to the whole of the real and 
 personal estate descended or devised to the wife ; and it extends 
 to a debt due to her before marriage, which the husband has not 
 reduced to possession. {Havilcmd v. Bloom,, 6 Jones' Oh. B. 178, 
 &mith V. Kane, 2 Paige's Oh. B. 303.) "When the wife was 
 entitled to an equitable provision out of property devised to her, 
 her husband being a lunatic, of whose person and estate no com- 
 mittee had been appointed, the court decreed her right in the 
 property, and ordered it to be assigned to the assistant register, 
 and the income thereof to be paid to her until further order. 
 (Carter v. Carter, 1 Paige's Gh. B. 463.) 
 
 § 259. Whether a court of equity will restrain the husband or his 
 assignee from proceeding at law to possess himself of the wife's 
 property in action, or compel by order a suitable provision out of 
 the same for her support on her application, has been considered a 
 doubtful question with the equity on the side of the wife. 
 
 Upon this subject the late Chancellor Kent said : "Whether the 
 suit for the wife's debt, legacy or portion, be by the husband or by 
 his assignees, the result is the same, and a proper settlement on 
 the wife must first be made of a portion of the property. The 
 provision is to be proportioned, not merely to that part of the 
 equitable portion of the wife's estate which the husband seeks, but 
 to the whole of her personal fortune, including what the husband 
 had previously received. And perhaps chancery ought on just 
 principles to restrain the husband from availing himself of any 
 means, eitJver at law or equity, of possessing himself of the wife's 
 personal property in action, unless he would make a competent 
 provision for her. The English rule in equity is, that when there 
 is a suit in the ecclesiastical courts for subtraction of a legacy, and 
 there is a married woman to be protected, or a trust to be executed, 
 the court of chancery will restrain the suit bj» injunction." (2 
 Kenfs Oom. 139.) 
 
 And upon the same subject, the late Judge Story said : " This 
 was formerly matter of no inconsiderable doubt, as it was not 
 
susband's interest in wife's realty. 393 
 
 Tinnatnrally supposed that tlio jurisdiction rested solely upon tie 
 ground, that parties seeking relief in equity should do equity ; and 
 if they -were not seeking any relief, then that the court remained 
 passive. But the doctrine is now firmly established that whenever 
 the wife is entitled to this equity for a settlement out of her equit- 
 able interest against her husband or his assignees, she may assert 
 it in a suit as plaintiff, by bringing a biU in the name of her next 
 friend. And certainly there is much good sense in disallowing 
 any distinction founded upon the mere consideration who is plaintiff 
 on the record ; for an equity is precisely the same whether she is 
 plaintiff or whether she is defendant. If it is a substantial right, 
 it ought to be enforced in her favor, whenever it is withheld from 
 her." (2 Stwy's Eq. Jur. % 1414.) 
 
 There are very respectable authorities against the position that 
 a court of equity will restrain the husband from proceeding at law 
 in those cases until he makes a suitable provision for his wife ; but 
 they have not as good reason as the opposite doctriae, and the latter 
 seems to be a prominent feature in all the late equity decisions 
 involving the question, and the rule in favor of the wife may be 
 regarded as settled. The common law right of the husband to the 
 wife's personal property during coverture is annulled or greatly 
 modified in many of the states, which will be fully noticed here- 
 after. 
 
 OHAPTEE XXII. 
 
 THE HTTSBAKD's ETTEEEST IN HIS WIFe's EEAL ESTATE AT COMMON 
 
 LAW HIS TENANCY BY THE CUBTESY AND THE INCIDENTS EESPECT- 
 
 ING rr HOW CUETESY MAY BE DEFEATED AND BAJREED. 
 
 § 260. At common law, the husband acquires by the marriage 
 the usufruct of all the freehold estate of the wife, consisting of all 
 her lands, tenements and hereditaments which she has in fee sim- 
 ple, fee tail, or for life. This doctrine is so ancient, and so well 
 understood, that the numerous authorities on the subject need not 
 be referred to. 
 
 The interest of the husband in the land estate of his wife is of 
 a freehold character, because it may continue during his natural 
 life, and has no certain determinate period. He is said to be 
 50 
 
394 LAW OF COVERTURE. 
 
 seised jure uxoris ; and during their joint lives lie takes the rents, 
 issues and profits that accrue during coverture absolutely, and if 
 unreduced to possession during his life, they pass to his personal 
 representatives, and an action to recover them does not survive to 
 the virife, {Glapp v. Stoughton, 10 Pick. S. 463. Shaw v. Pa/r- 
 tridge, 17 Yt. R. 626. Edrington v. Harper, Z J. J. Ma/rah. E. 
 360. Bailey v. Dunca/n^ 4 Mon. P. 260.) Or, in the language 
 of one of the cases, " a husband's interest in the lands of his wife, 
 held in her own right, is denominated a freehold, because of its 
 certain continuance during coverture, and during his life, after her 
 decease, provided he is tenant by the curtesy. As a necessary 
 incident, the husband becomes entitled to the possession, and to 
 the rents and profits, commensurate with his estate, and, if vested, 
 may recover the same in his own name. These marital rights 
 were well settled by the common law," and the hnsband cannot be 
 deprived of them, except by an unmistakable provision of statute ; 
 and, even then, an estate acquired prior to the enactment of the 
 statute would not be affected by its provisons. {Smith v. Cohmt, 
 17 Pari. P. 157, 160.) 
 
 If husband and wife convey the real estate of the wife to trus- 
 tees for the use of the grantors, the husband will have the absolute 
 control of the proceeds of the sale. {Siter v. MoClanoGhan, 2 
 Gratt. [ Va.'] R. 280.) 
 
 If a lease for a term of years is executed to husband and wife 
 jointly, the husband takes the rents and profits during the joint 
 lives of the husband and vdfe ; and the husband may alien the 
 entire term or estate, so as to bind the wife and deprive her of her 
 rights of survivorship. {Jackson v. McConnell, 19 Wend. P. 175. 
 JDian v. Glover, 1 Eqf. Ch. P. 71. , Goelet v. Gori, 31 Pari. P. 
 314.) 
 
 During the joint lives of the husband and wife, he has the abso- 
 lute control of the estate of the wife, and may convey or mortgage 
 it for that period. {Ba/rler v. Harris, 15 Wend. P. 615, 617. 
 Railroad Co. v. Harris, 9 Ind. P. 184.) 
 
 The interest of the husband in his wife's lands may be taken 
 and sold on execution against the husband. {Mattocks v. Steams, 
 9 rt. P. 326. Perkins v. Cottrell, 15 Barb. P. 446, 448. Oakley 
 V. Porter, 12 Ohio P. 79. Williams v. Morgan, 1 Idit. P. 168. 
 Brown v. Gale, 5 K H. P. 416. Bobh v. Paley, 1 Greenl. P. 6. 
 But vide Jackson v. Suffern, 19 Wend. P. 175.) The purchaser, on 
 
susband's interest in wife's realty. 395 
 
 the execution sale, will take tlie rents and profits for a definite 
 period, or the whole life estate, at an appraisal of the value founded 
 on a proper estimate of the probability of human life, or just the 
 interest which the husband had in the lands during coverture. 
 {Litchfield v. Oadworth, 15 Pick. JR. 23.) If the husband has 
 released his interest in his wife's lands to his wife, reserving an 
 annuity to himself, it is held, in Pennsylvania, that his creditors 
 have no longer any lien on the lands. {BonsloMgh v. Bonslcmgh, 
 17 Serg. & Bcuwle^s B. 361.) Of course^ the husband's conveyance 
 by mortgage will only pass his life estate, or the joint life estate 
 of himself and wife, as the case may be, and no more. {Miller 
 V. Skaclcleford, 3 Demo's S. 291.) 
 
 § 261. Upon this subject Mr. Clancy says : " The husband gains 
 an estate of freehold in the inheritance of his wife, in her right 
 during her life. He is not, however, solely seised, but jointly with 
 her. The interest which the husband acquires by marriage, in the 
 estate of inheritage of his wife, is most correctly expressed in the 
 technical phraseology of the common law pleaders, viz., ' That 
 husband and wife are jointly seised in right of the wife.' " Again : 
 " But, although the husband is said to be jointly seised with his 
 wife, and not solely in her right, it is not to be inferred that he is 
 incapable of creating an estate of freehold in her inheritance, with- 
 out her being a party to the conveyance. For instance, he may 
 alone, during the coverture, create, by deed, an estate of freehold, 
 and thereby make a good tenant to the praecipe without the wife's 
 joining him in a fine. So, at the common law, a husband seised 
 in right of his wife might have made a discontinuance of the wife's 
 estate, and thus barred her right of entry, which proves that he 
 had the power of conveying the freehold, without her consent, 
 during his life ; for a discontinuance can be worked only by a 
 person having a lawful estate, to which he can give an unim- 
 peachable title during his life, and he must, consequently, have had 
 a sole seisin in the freehold for his life." {Olancy on Husband 
 and Wife, 161, 162.) 
 
 § 262. Bacon, in his Abridgment, says : " From the time of the 
 intermarriage the law looks upon the husband and wife but as one 
 person, and, therefore, allows of but one will between them, which 
 is placed in the husband, as the fittest and ablest to provide for and 
 govern the family ; and, 'for this reason, the law gives the husband 
 an absolute power of disposing of her personal property, no acts of 
 
396 LAW OF COVERTURE. 
 
 hers being of any force to aflFect or transfer that which, by the 
 intermarriage, she has resigned to the husband ; bat the freehold 
 and inheritance of the Avife is subject to other rules and regulations, 
 for the husband, by marriage, does not become absolute proprietor 
 of the inheritance, but, as the governor of the family, is so far 
 master of it as to receive the profits of it during her life, but has 
 no power to make an absolute sale of it without her consent." 
 (1 Bac. Ab. 286.) 
 
 With respect to the power of the husband to lease his wife's 
 lands during coverture, Bacon says : " If the husband seised of 
 lands in right of his wife, makes a lease thereof for years by inden- 
 ture or deed poll, reserving rent, all the books agree this to be a 
 good lease for the whole term, unless the wife, by some act after 
 her husband's death, shows her dissent thereto ; for if she accepts 
 rent, which becomes due after his death, the lease is thereby 
 become absolute and unavoidable." (1 Sao. Ah. 302.) 
 
 This position of Bacon, in regard to the effect of the acceptance 
 of rent by the wife, is not fully sustained by the authorities. The 
 lease of the husband of his wife's lands for years, is not void during 
 the joint lives of himself' and wife ; but if either dies within the 
 term, the lease becomes void, except that a tenancy by the curtesy 
 may change the rule. The lease in any event becomes absolutely 
 void, and is determined by the death of the husband. ( Walton v. 
 Hill, 2 Saund. B. 180, note b.) 
 
 § 268. A lease of the wife's land by husband and wife, at com- 
 mon law, is no better than that of the husband alone. The hus- 
 band is always bound by a lease executed by him of his wife's 
 lauds, but the wife, whether she have joined in it or not, is not 
 bound by it ; for, having been a married woman at the time of the 
 execution of it, she was incapable of contracting, and is therefore 
 at liberty, when the disability is removed, to avoid or affirm this 
 contract, if it be capable of confii-naation ; and the same power of 
 affirming or avoiding such a lease descends upon the issue of the 
 wife. {Jefery v. Grey, Telv. B. 78.) 
 
 But not only may such a lease of the wife's land be avoided by 
 the wife and her issue on the death of her husband, but the same 
 power may be exercised by a subsequent husband of the wife, or 
 any other party claiming under the wife by any legal proceeding; 
 or the lease may be confirmed by the wife or the other parties named. 
 ( Vide Clonal/ on JBusband and Wife, 174.) 
 
husband's interest in wife^s realtt. 397 
 
 The husband alone may charge the wife's land during the joint 
 lives of husband and wife. He has the power at common law, to 
 transfer the whole estate of his wife, and the estate will lie in the 
 alienee of the husband, subject to the right of entry of the wife, or 
 her heirs, and which entry is necessary to revest the estate after 
 the husband discontinues it. (2 Kevfs Com. 133. ButUrfidd v. 
 Beall, 8 Ini. R. 203.) 
 
 The interest in the wife's lands, and power over them by the 
 husband, ceases in all cases of absolute divorce, that is upon the 
 dissolution of the marriage by a divorce a vmeulo matrvmonii. 
 {Stearns v. Steams, 10 Ohio R. 540. Mattock v. Stewrns, 9 Vt. R. 326. 
 Burt V. Hurhut, 16 «5. 292. Oldham v. Senderson, 5 JDamcHs R. 
 256.) A divorce from the bond of matrimony entitles the wife, at 
 common law, of its own force, and without any order of the court, 
 to be put immediately into the possession of her real estate. Said 
 Chancellor Walworth: "If the husband has been guUty of 
 adultery, he has forfeited his right to the rents and profits of his 
 wife's estate, by this violation of the marriage contract. And if 
 the wife succeeds in obtaining a decree for a divorce, she will be 
 entitled, as a matter of course, to her real estate, and to the rents 
 and profits thereof from the time of filing her bill, so far as the 
 husband has not actually reduced the same to his possession." 
 {Ymcent v. Pao'Tcer, 7 Paige^s Gh. R. 65, 66.) 
 
 In many of the states, the husband's usufruct of the wife's free- 
 hold during coverture is abolished or modified, which will be 
 noticed hereafter. 
 
 § 264r. If the husband dies in the life-time of the wife, the fee 
 of her lands remains in her, and the heirs and personal represent- 
 atives of the husband have no interest iu the same, except that 
 crops growing upon the land at the time of his death belong to his 
 estate. Although the emblements growing upon the land adhere 
 to the freehold, they are regarded in this case as personal property, 
 and vest iiii the executors or administrators of" the husband, and 
 they have a right to enter upon the land for the purpose of gather- 
 ing such emblements. So, when a husband is seised of land in 
 right of his wife, and she dies without issue by him born alive, the 
 land descends to the heir of the wife, and the interest of the hus- 
 band in the land is at once terminated, except that if the husband 
 has sown or planted the land he is entitled to the emblements. 
 {Reeves' Bom. Rel. 28, and authorities there cited.) So, also, when 
 
398 LAW OF COVERTURE. 
 
 the husband and wife divorced causa prmoontractMS, and the hus- 
 band has sown the land of his wife previous to such divorce, he 
 will be entitled to the emblements ; for, although the divorce is 
 the act of the parties, yet the sentence which dissolves the marriage 
 is the judgment of the law, et judicium redditur in invitum. 
 (Osland's case, 5 Coke's R. 116 a. Tide also Mattock v. Steals, 9 
 Vt. B. 326.) It is also held that, at common law, the lease by a 
 husband of lands which he holds in the right of the wife, will 
 operate so far in the tenant's favor as to entitle him to the emble- 
 ments. {Mooneyes case, 2 Vern. B. 322. Gould Y.Webster, 1 
 Tyler's [ F«l.] B. 409.) 
 
 § 265. There remains to consider another very important interest 
 which the husband may have in his wife's landed estate, known as 
 his tenancy by the curtesy, which does not terminate with the 
 death of the wife, but is extended beyond that period. 
 
 The term curtesy was probably derived from the husband's 
 attendance at the lord's court, or cvHis, in respect of the wife's 
 real property. Tenant by the curtesy of England, perhaps origia- 
 ally signified nothing more than tenants by the courts of England, 
 for, in Latin, he is called tenens per legem Anglice. {Vide 2 £1 
 Com. 126, and note 8.) 
 
 According to Blackstone, as soon as any child was bom, the 
 father began to have a permanent interest in the lands ; he became 
 one of ShQjpa/res curds, did homage to the law, and was called 
 tenant by the curtesy initiate; and, this estate, being once vested 
 in him by the birth of the child, was not suffered to deteriorate by 
 the subsequent death, or coming of age, of the infant. (2 £1. 
 Com. 127.) ' 
 
 The husband's estate by the curtesy is defined by Sir Thomas 
 Littleton, in his famous treatise on " Tenures," to be an interest 
 for life in the lands and tenements belonging to his wife, of which 
 she was seised, in fee simple or fee tail, upon her having issue, by 
 her born alive, that may, by possibility, inherit the estate by 
 descent from her. {Idtt. on Ten. §§ 35, 52. 1 BrigMs Susband 
 and Wife, 116.) 
 
 This was the definition of the husband's estate by the curtesy, 
 as given by the great English jurist four hundred years ago, and 
 the same rule is universally recognized at the present day. 
 
 §266. This estate by the curtesy has been supposed to have 
 its origin within the realm of England, but it appears to have 
 
TENURE BT CUSTEST. 399 
 
 obtained in the ancient province of Normandy, and was, like- 
 wise, used among the ancient Almains or Germans. ( Vide 2 £1. 
 Com. 126.) 
 
 There are four preliminary events requisite to the completion of 
 this title by the curtesy: first, marriage; second, seisin; third, 
 issue ; fourth, death of the wife. The marriage must be canonical 
 and legal, or one that is valid by the local laws of the state. How- 
 ever, if the marriage be voidable only, it will give curtesy, unless 
 it is actually avoided during the life of the wife. It cannot be 
 declared void after the death of the wife so as to affect curtesy. 
 (1 Was/iium on Heal Property, 129, 130.) 
 
 The seisin of the wife must be an actual seisin or possession of 
 the lands, not a bare right to possess, which is a seisin in law, but 
 an actual possession, which is a seisin in deed. Courts of equity, 
 however, allow curtesy of trust, and of other interests, which, 
 although mere rights in law, are deemed estates in equity. Entry 
 is not always necessary to an actual seisin or seisin in deed, for, if 
 the land be in lease for years, curtesy may be without entry or 
 receipt of rent, the possession of the lessee being the possession 
 of the husband and wife. But if the lands were not let, and the 
 wife died before entry, there could be no curtesy. A man will 
 not be entitled to tenancy by the curtesy of a reversion or 
 remainder eaypectant upon an estate of freehold, but upon a rever- 
 sion, expectant upon an estate, for years, this right accrues, for the 
 possession of the tenant for ye^rs constitutes a legal seisin of 
 the freehold in reversion. {Vide 2 Bl. Com. 127. Watts v. 
 BaU, 1 P. Wms. R. 108. Casborne v. Scarfe, 1 Atk. B. 603.- 
 DeOray v. Richardson, 3 i5. 469, 4Y0. Goodtitle v. Nevmiam,, 
 3 Wils. B. 521. Stoughtm v. Leigh, 1 Tamnt. B. 410.) 
 
 "With regard to the third event, viz., issue^ it is an ingredient 
 essential to the completion of this title that the issue be born alive, 
 of which its crying is said not to be an essential proof, for, as Lord 
 Coke observes, " Peradventure it maybe born dumb." {Cokeys 
 Litt. 15 a.) The issue must also be of the human species ; for if 
 the wife be delivered of a monster, this is no issue in law. (Pam's. 
 case, 8 Coke's B. 34.) But if the issue be born deaf and dumb, 
 or be an idiot, such issue is lawful to make the husband tenant 
 by the curtesy. (Ih) 
 
 The issue must be born in the life-time of its mother. If the 
 mother die before the offspring comes into life, the husband cannot 
 
4.00 LAW OF COVEBTURH. 
 
 be tenant by the curtesy, for tlie title mnst commence with the 
 birth of the issue, and be perfected by the death of the wife. But 
 if the wife die before the birth of the child, then the child could 
 not be said to have been born during the marriage, nor in the life- 
 time of the wife, and therefore the husband could not allege in 
 pleading, as he ought, that he had issue during the marriage. 
 (PamUs case, 8 Colc£s R. 34.) 
 
 The issue, to make the husband tenant by the curtesy, must also 
 be such as is capable of inheriting the wife's estate ; for if the 
 lands be given to a woman and the heirs male of her body, she 
 takes a husband and has issue a daughter only and dies, he will 
 not be tenant by the curtesy, because the daughter by no prob- 
 ability could inherit the mother's estate in the land. {Pavn^s case, 
 8 CeTce's R. 34.) 
 
 It is, however, immaterial at what period of the coverture the 
 issue capable of inheriting was born, whether it be before or after 
 the descent of the lands upon the mother, or whether at the time 
 of such descent the issue be living or dead. As, if a man seised 
 of lands in fee has issue a daughter, who takes a husband and has 
 issue, the father dies, the husband enters, he will be tenant by the 
 curtesy, notwithstanding the issue was had before the wife was 
 seised, and even if the issue should die in the life-time of the 
 wife's father, before any descent of the land, still the husband 
 would be tenant by the curtesy. (PmrHs case, 8 Cokeys R. 34. 
 And vide Glcvney's Sv^land and Wife, 183, 184.) 
 
 If the wife become seised of lands during the coverture, and 
 then be disseised, and then have issue, the husband will be tenant 
 by the curtesy of those lands, arid on his wife's death may enter as 
 such ; and during her life he is called tenant by the curtesy initiate; 
 and the same is the rule if the wife become seised after issue, 
 though the issue die before her seisin. {Jackson v. Johnson, 5 Cow. 
 R. 74.) 
 
 § 267. "With respect to the nature of the estate by the curtesy. 
 Lord Mansfield, in a case decided in 1785, said : " Tenancy by the 
 curtesy existed before the statute de donis, and the definition of it 
 is, that the wife must be seised of an estate of inheritance, which by 
 possibility her issue by the husband may inherit, and there must be 
 issue born. Estates at that time were of two sorts, conditional 
 or absolute ; and curtesy applied to both equally. I cannot agree 
 with the argument, ^hat on uerformance of the condition by birth 
 
TSNANCY ST CXTRTEST. 401 
 
 of a cMld tte estate became absolute ; it was so by a subtilty in 
 odium of perpetuity, andfor the special purpose of alienation, but 
 for no other. It otherwise reverted to the donor on failure of the 
 issue according to the original restriction. At common law the 
 only modification of estates was by condition. The statute of 
 uses introduced a greater latitude of qualification, but there arose 
 a great dread of letting in perpetuities by means of the extensive 
 operation of that statute, and, in the time of Elizabeth and James, 
 many cases were decided with a view to prevent that effect ; with 
 this view it was allowed to her contingent remainders before the 
 person who was to take came into esse ; others were held to be too 
 remote in their creation. The cases proceeded in that view too far, 
 and estates were too much loosened and it became necessary to 
 restrain them again ; and in the time of troubles, eminent lawyers^ 
 who were then eminent chamber counsel, devised methods which 
 on thdr return to Westminster Hall they put in practice, such as 
 interposing trustees to preserve contingent remainders. It is not 
 of long date that the rules now in use have been established. I 
 remember the introduction of the rule which prescribes the time 
 in which executory devises must take effect to be a life or lives in 
 being, and twenty-one years afterward. It is contended that this is 
 a conditional limitation. It is not so, but a contingent limitation ; 
 all the cases cited go upon the distinction of their being conditions 
 and not limitations. During the life of the wife she continued 
 seised of a fee simple to which her issue might by possibility 
 inherit." The judgment was that the husband bf the deceased 
 cestui que trust, was entitled to be tenant by the curtesy. {Buch- 
 worth V. Tki/rkdl, 3 Bos. (& Pvl. B. 652, note a.) 
 
 § 268. In this case of Buckworih v. Thvrkell, the subject of 
 curtesy in estates determinable under conditional limitations or by 
 executory devise, underwent a very full and elaborate discussion, 
 and the case is regarded as a leading' one upon the questions 
 involved ; and it has been well said that, " few cases in modem 
 practice have provoked so much discussion, or been the subject of 
 so much '\ animadversion." (1 Scribner on Dower, 292). Lord 
 Alvanley, in 1804, remarked that, "it occasioned some noise in 
 the profession at the time it was decided." {Doe v. Sutton, 3 Bos. 
 <& Pul. B. 653.) The facts of the case were these : An estate was 
 devised to trustees in trust for Mary Barrs, till she attained twenty- 
 one, or married, and then to the use of her and her heirs, with a 
 51 
 
402 ■^•'1^ 0# COVEBTURE. 
 
 devise over in case she died under the age of twenty-one, and with- 
 out leaving issue. The events were, that she married, and had a 
 child ; the child died, and then the mother died under twenty-one ; 
 and the question was, whether the husband was entitled to be 
 tenant under the curtesy, which entirely depended upon whether 
 she had such an estate as, by possibility, her issue might inherit. 
 The case was twice argued, and the court held that the husband 
 was entitled to be tenant by the curtesy, and therefore deciding 
 that the determination of an estate by operation of an executory 
 devise does not defeat the right of the husband to be tenant by 
 the curtesy. 
 
 § 269. Mr. Butler, the learned annotator of Coke on Littleton, 
 most decidedly disapproves of the doctrine of Lord Mansfield as 
 laid down. in BucTcworth v. Thirkell, saying: "As to estates in 
 fee simple, conditional at common law, and estates tail under the 
 statute de donis, the wife was entitled to her dower, and the hus- 
 band to his curtesy out of them, after the failure of the issues in 
 tail. But, it may be observed, that though it is now difficult to 
 avoid considering estates in fee simple conditional, in any other 
 light than as estates originally granted to the donee, and to the 
 heirs general, or to some particular heirs of his body ; and the estate 
 of the donor, as that of a reversion expectant on the failure of those 
 heirs; yet this restriction to particular heirs, and exclusion of 
 others, is understood to be produced, not by any limitation of per- 
 sons introduced into the grant, but by a condition supposed to be 
 annexed to it, that if there were no such heirs, or, being such, if 
 they afterward failed, and the donee did not alien the estate, it 
 should be lawful for the donor and his heirs to enter. This entry, 
 therefore, was not an entry upon the natural expiration of a pre- 
 vious estate, but for a condition broken ; in which case, as in all 
 others where fentry is made for bfeach of a condition, the right of 
 the wife to her dower, and the husband to his curtesy, if the gen- 
 eral rule were adhered to, would be defeated." 
 
 In his notice of the case of Buckworth v. Thirkell, Mi\ Butler, 
 says: "By a mamiscript report of the case, the ground upon 
 which the court appear to have formed their opinion on it, is an 
 analogy they supposed it . to bear to the cases of estates in fee 
 simple conditional, and estates tail ; in both of which dower and 
 curtesy continue after failure of the issues ; and in both of which 
 the wife being seised of a fee, to which the issue might, by possi- 
 
TENANCY BY CURTESY. 403 
 
 bility, inlierit, entitles the husband to curtesy. Some observations 
 have been offered above, to show that the continuation of dower 
 and curtesy in the cases of estates in fee simple conditional was an 
 exception to a general rule (dower and curtesy, in all other cases 
 of conditions being defeated by the entry for the condition broken), 
 and that the same reasoning may be applied to the continuation 
 of dower and curtesy out of an estate tail, after the failure of issue. 
 It may therefore seem singular that the court, on this occasion, 
 should prefer reasoning by way of analogy from the only admitted 
 exception to the rule, to reasoning by analogy from the general 
 rule itself. It is the more singular, as the general case of estates 
 on condition approached nearer to the case then under the consid- 
 eration of the court than the particular case of estates in fee simple 
 conditional, or estates tail ; for the distinguishing feature of the 
 devise which gave rise to the case before the court (as of all devises 
 of that description) is, that, after the whole fee is tirst devised, it is 
 made defeasible by a subsequent clause. Now, neither an estate in 
 fee simple conditional, nor an estate tail, has any such defeasible 
 quality or incident annexed to it, but this quality forms the very 
 essence of all other estates upon condition, with respect to the 
 application of the maxim that when the issue may, by possibility, 
 inherit, the husband shall have his curtesy, and so vice versa of 
 dower ; in every place in the books where that is mentioned, it is 
 to introduce an inquiry whether the wife, being in the actual 
 seisin of an estate, was in fact seised of an estate, the qiialiiy of 
 which was such, that the issue of the husband might inherit it, but 
 never with a view to show that the quantity of the estate was such 
 that it might endure so long as to be inheritable by the issue. On 
 the contrary, when the wife's estate is evicted by title paramount, 
 or by an entry for the breach of a condition, in both cases the issue 
 might have inherited ; but the husband would be entitled to his 
 curtesy in neither, after the eviction or entry. Another difference 
 between the case of an estate in fee simple made defeasible by a 
 subsequent executory limitation or devise, and that of an estate in 
 fee simple conditional, or an estate tail, is, that an estate in fee 
 simple, made defeasible by an execiitory limitation or devise, can- 
 not, by any means whatever, be discharged by the first, taker or 
 devisee, from the operation of the subsequent limitation or devise, 
 but an estate in fee simple conditional may, immediately after the 
 birth of a child, and an estate tail immediately after marriage, be 
 
404 LAW OF COVERTURE. 
 
 destroyed, and a fee simple absolute acquired, by the busband and 
 wife joining in a fine or common recovery. The case is the same 
 with respect to the wife's right of dower. Besides, the quality we 
 are speaking of is not sufficient of itself to entitle the husband to 
 curtesy or the wife to dower ; it is only one of many incidents 
 which the estate ought to have to give that title." {Butler on Co. 
 Liu. 241 a, note.) 
 
 § 270. Mr. Park, another writer of distinguished ability, also 
 dissents' from the views of Lord Mansfield on this subject, and in 
 referring to his opinion in Buekworih v. ThwheU, observes : " The 
 latter passage, in which he is made to assign a reason for his deci- 
 sion, that it was not a conditional limitation, is not easily recon- 
 cilable with the case stated. The original limitation to Mary Barrs 
 was expressly a limitation of the fee, and the subsequent estates 
 being limited in derogation of that fee, and not upon the determi- 
 nation of a prior particular estate, was necessarily a conditional 
 limitation. If it was not so, it is difficult to conjecture what Lord 
 Mansfield understood by a conditional limitation. It might, per- 
 haps, be thought that his lordship's observations, as above stated, 
 merely intended to take the distinction between a limitation and a 
 condition, properly so called. But the language as stated in the 
 report of the case in OolUctwnea Juriddca is still more irreconcilable 
 with any correct view of the law, in application to the facts stated. 
 It is as foUows : ' Now it is contended that this is a conditional 
 limitation. It is no such thing. There is no condition in it. It 
 is a contingent limitation. If it is a limitation it does not defeat 
 the right of the husband to be tenant by the curtesy, though the 
 estate is spent.' It is certainly inconsistent with all ideas enter- 
 tained in modem practice, to consider an estate originally limited 
 in fee and abridged by a subsequent limitation even upon the hap- 
 pening of a particular event, in any such light as that imphed by 
 the observation that it was spent upon the happening of that event. 
 Indeed were not the observations of Lord Mansfield found in a 
 case, which, as reported, was indisputably that of a conditional 
 limitation, they would, without doubt, have been considered as 
 establishing the general distinction, as to dower and curtesy, 
 between estates expiring by their natural and regular limitation, 
 and estates abridged or defeated by some collateral term annexed 
 to this creation. So far as the language of the judgment is to be 
 relied on, it would seem to proceed upon the very distinction which 
 
TENANCY BY CURTESY. 405 
 
 Bwikworih v. TliirkeU is daily cited to overturn." {Park on 
 Bower, lYY, 179.) 
 
 § 271. Some other leading Englisli text writers agree in opinion 
 with Messrs. Butler and Park upon the subject, while several dis- 
 tinguished English writers upon the law of real property, as 
 decidedly support the doctrine of Lord Mansfield. 
 
 Mr. Jarman, in his excellent treatise on wills, which is recognized 
 as undoubted authority, both in England and in this country, 
 remarks : " It is to be observed, too, that an immediate estate in 
 fee, defeasible on the taking effect of an executory- limitation, has 
 aU,the incidents of an actual estate in fee simple in possession, 
 such as curtesy, dower, etc. ; the devisee having the inheritance in 
 fee, subject only to a possibility." (1 Ja/rman on Witts, 792.) 
 Messrs. Eoper and Bisset are also among the other eminent 
 writers who unhesitatingly indorse the rule laid down in Buch- 
 warth V. Thirkell. (1 Roper on Husbcmd and Wife, 38-43, 377. 
 Bisset on Life Estates, 82-87.) 
 
 § 272. The English courts have also generally acquiesced in, or 
 expressly approved of, the doctrine oiBuchworth v. Thirkell. Thus, 
 in a case decided in the English common pleas, in 1825, Best, Ch. 
 J., said : " Lord Aloanley does not seem to approve the decision of 
 Lord Mansfield, in Buckworth v. Thirkell ; and according to his 
 lordship's account of it, the case made a noise in Westminster Hall 
 at the time the judgment was given. The great respect I feel for 
 Lord Alwamley and the bar, is such as to make me pause before I 
 make up Hiy mind as to the certificate that should be sent to the 
 vice-chancellor. I must, however, be permitted to say, that after 
 a decision of the court of king's bench, which was much considered 
 before it was pronounced, has remained unimpeached for more than 
 forty years, and has been confirmed by the case of Goodenough v. 
 Goodenough, we ought not to overturn it unless it establishes a 
 rule productive of injustice and inconvenience. Whatever convey- 
 ancers might have thought of the case when it was first decided, 
 they have since considered it as having settled the law, and it 
 would be productive of much confusion to unsettle it again.' 
 {Moody V. 'Emg, 9 Eng. G. L. E. 475, 476.) And the case of 
 Buckworth V. Thirkell, was the authority chiefly relied upon for 
 the judgment which was Ordered by the court. 
 
 § 273. Other English authorities might b6 cited in which the 
 doctrine that the determination of an estate by operation of an 
 
406 LAW OF COVERTURE. 
 
 executory devise does not defeat the right of the husband to he 
 tenant by the curtesy, in accoTdance with the views of Lord 
 Mansfield in BuchwoHh v. TUrkell, which has been coireidcred a 
 leading authority upon the subject ever since it was delivered. So 
 late as 1856 the rule was recognized in the English chancery, and 
 the principle applied to an equitahle determinable estate. The 
 case was first decided by the vice-chancellor, and upon appeal to 
 the lord chancellor the decree of the vice-chancellor was afiirmed. 
 {^rmth V. Spenoer, 2 Junst [iT. 8.'\ 778. 6 De Oex, Macnaghten 
 <& Gordon's E. 631.) 
 
 The opposition to this doctrine is generally based upon a decision 
 in the English court of chancery as early as the forepart of the 
 eighteenth century, when the Earl of Macclesfield was lord 
 chancellor of England, wherein it was held that, " whenever the 
 estate is to be determined by express limitation or condition upon 
 the death of the wife, then the husband shall not have curtesy." 
 {Boothby v. Vernon, 9 Mad. B. 150. Vide also Sammes v. Payne, 
 1 Leon. B. 168, amd Sumner v. Partridge, 2 Aik. B. 47.) 
 
 § 274. "With respect to the case of Buckworth v. Thirkell, Mr. 
 Bright says : " It may be doubted whether the court intended to 
 decide generally that curtesy should exist notwithstanding the 
 determination of the estate by executory devise, or whether it 
 turned tipon the particular natiire of the limitation. The wife was 
 seised in fee, subject to an executory devise over, in the event, 
 which happened, of her dying under age, and without having 
 issue. Hence, if she had left children, they would have been 
 entitled by descent ; and the judgment of Lord Mansfield proceeded 
 chiefiy, if not entirely, upon the ground that the case for this 
 reason came within the definition of curtesy, that the wife had an 
 estate of inheritance, which any issue she might have had by the 
 husband would have inherited, and that that estate continued 
 during her life. The decision of the court of common pleas, in 
 Moody V. King, seems to have been founded on similar reasons ; 
 and the case of Goodenough v. Goodenough (if it involved this 
 question) is open to the same distinction. These cases, therefore, 
 Bitpposing their authority to be admitted, cannot be considered as 
 deciding any thing, except when the death of the husband or wife, 
 without leaving issue, is the event upon which the estate is deter- 
 minable; still less do they apply to cases where the limitation 
 depends upon an event which happens during coverture. To 
 
TENANCY BY CURTESY. 407 
 
 sustain the argument in favor of dower and curtesy in such cases, 
 it would be necessary to contend that after the estate of the hus- 
 band or wife had ceased, and the party entitled under the limitation 
 over had entered, the former estate should partially revive upon 
 the determination of the coverture. The doubt in tlie case of 
 Fla/oill V. Ventrice did not go to this extent, the event not having 
 happened till after the husband's death ; and though, according to 
 one of the reports of 8ammes v. Payne, this point was put by one 
 of the judges, yet the absence of the passage from the other reports 
 of the case, and the other discrepancies between them which Mr. 
 Park has pointed out, show that very little reliance can be placed 
 on the authenticity of this dictum. 
 
 It may be concluded that there is no authority for the con- 
 tinuance of dower or curtesy after the determination of the estate 
 by conditional limitation or executory devise, except when it 
 determines by the death of the husband or wife without leaving 
 issue, and that it is still extremely questionable whether the excep- 
 tion can be supported." (2 BrigMs Husband and Wife, 4T2.) 
 It is proper to remark that, since Mr. Bright came out with his 
 very able work on the law of husband and wife, several authorities 
 of considerable weight have been reported confirming the doctrine 
 he impliedly condemns. It may also be suggested that while his 
 argument is plausible, his reasoning does not necessarily dispose of 
 the eases reviewed. 
 
 § 275. The question whether the right to curtesy or dower con- 
 tinues after the estate of the wife in the one case, or of the husband 
 in the other, has determined by limitation, or by executory devise, 
 has also been much discussed in the United States, and the result 
 is that an entirely imanimous opinion has not been reached. 
 
 Chancellor Kent says that curtesy applies to qualified as well as 
 to absolute estates in fee, but the distinctions on this point, he adds, 
 are quite abstriise and subtle. He then speaks, approvingly of the 
 doctrine of Paine's case (8 Coke's B. 34), and remarks : " So when an 
 estate was devised to a woman in fee, with a devise over, in case 
 she died under the age of twenty-one, without issue, and she mar- 
 ried, had issue, which died, and then she died, under age, by which 
 the devise over took efiect; still, it was held the husband was 
 entitled to his curtesy." (4 Kenfs Com. 32.) Of course it will be 
 discovered that the chancellor refers to the case of Buchuoorth v. 
 Thirkell, as authority for this last proposition ; though in another 
 
•iOS ZAW OF COVERTXmiS. 
 
 place he avers that "the ablest writers on property law, are 
 evidently against the authority of the case of Buckworth v. Thm-- 
 Tcdlf leaving it to be wf erred that he, himself, is opposed to the 
 doctrine of the case. (4 Kenfa Com. 50.) 
 
 Mr. Hilliard, another standard author upon real property, says : 
 " Devise to a woman in fee, with a devise over, if she die under age, 
 without issue. The woman marries, has issue which dies, and dies 
 herself under age. This is a contingent limitation, not a condi- 
 tional limitation, and the husband shall have curtesy." (1 Hilliard 
 on Real Prop. 114, § 23.) It will be here observed, that the 
 learned writer recognizes the authority of Buckworth v. Thi/rhell, 
 but adopts a distinction which militates against the doctrine of 
 the case. But again the writer says : " With regard to curtesy, as 
 well as dower, if the primitive estate terminates by force of a co?i- 
 diUon instead of a limitation, the derivative interest is also 
 defeated." {Ih. § 24.) Mr. "Washburn, late one of the judges of 
 the supreme judicial court of Massachusetts, and a writer of great 
 eminence in this country, admits that questions of great, subtlety 
 and difficulty have arisen in respect to determining estates, 
 whether, upon their determining, the husband's right of curtesy is 
 defeated or not ; but lays down the rule, that if a feme-covert 
 is seised of a fee simple, and there is an executory devise over, and 
 the estate is defeated by the happening of the event on which the 
 executory devise depends, the husband would nevertheless be 
 entitled to curtesy in the same." (2 Waslib. on Real Prop. 374.) 
 " So," he says also, " when the devise was to a daiighter and her 
 heirs, and if she died without issue, the whole estate was to be sold, 
 and the proceeds paid to her brothers and sisters, and she married 
 and had a child, which died, and then she died without issue, her 
 husband had curtesy." (1 Washh. on Real Prop. 131, referring to 
 Bucharum v. Sheffer, 2 Yeates' [Penn.] R. 374. May v. Mayer, 8 
 Watt's [Penn.] R. 202. Taliaferro v. Burwell, 4 GalVs [ F<^.] B. 
 321.) It will be seen that this is the same principle which is laid 
 down in Buck/worth v. Thi/rkell^ which Mr. "Washburn evidently 
 approves. 
 
 § 276. It may be averred also, that the American cases are rather 
 in harmony with this doctrine, although they are by no means 
 uniform upon the subject. 
 
 In a case in the supreme court of Pennsylvania, decided as late 
 as 1860, it was held that curtesy attaches to an estate in fee, subject 
 
TENANCY BT CURTESY. 409 
 
 to a conditional limitation, though the grantor intended otherwise ; 
 and in giving the opinion of the court, Lowry, Oh. J., said : " The 
 case of BvfChancm v. Sheffer (2 Yeates, 374) decides this on the 
 authority of Buckworth v. Thirhell, though possibly the case might 
 have been decided in the same way on other grounds. The princi- 
 ple of this latter case has been very ably attacked and defended in 
 the arguments here, and we shall not repeat the discussion. In favor 
 of the principle we have Kent (4 Gom. 472, 8th ed.) Eoper (1 Hus- 
 hamd and Wife, 38-43), and Treston (3 Abst. of TiUe^ 372-384). 
 And against it we have Butler {note 170 to Coke on Litt. 241 a) 
 and Park {Dower, 167-191). Eoper on one side, and Park on the 
 other, go very fully into the discussion of the authorities and 
 the principle. Its supporters go on the substance of the principal 
 estate, and its assailants on the form of its creation ; and, owing to 
 the innumerable variety of the forms of expression in which the 
 same substantial estate may be created, we think it much more 
 certain to attack the incidents to its substance than to the form of 
 its creation. On a subject that involves so many difficult questions, 
 we confine ourselves carefully to the case before us, and say that 
 curtesy attaches to an estate in fee, that is subject to a condi- 
 tional limitation on the failure of issue." {TJbomton's Executors v. 
 Kna/pp's Executors, 37 Penn. JR. 391.) 
 
 § 277. The doctrine of the case of Buckworth v. Thirkell was 
 also distinctly recognized in a much earlier case in the State of 
 Pennsylvania, although the question was considered upon an 
 application for dower. Chief Justice Gibson, in speaking for the 
 court, said : " I have a deferential respect for the opinion of Mr. 
 Butler, who was, perhaps, the best conveyancer of his day, but 
 I cannot apprehend the reasons of his distinction in the note to 
 Co. Litt. 241 a, between a fee limited to continue to a particular 
 period at its creation, which curtesy or dower may survive, and 
 the devise of a fee simple or a fee tail, absolute or conditional, 
 which, by subsequent words, is made determinable upon some 
 particular event, at the happening of which dower or curtesy will 
 cease." Again: "How to reconcile to any system of reason, 
 technical or natural, the existence of a derivative estate after the 
 extinction of that from which it was derived, was for him to show, 
 and he has not done it. The case of a tenant in tail, says Mr. 
 Preston, ' is an exception arising from an equitable construction of 
 the statute de donis ; and the cases of dower of estates detennined 
 52 
 
410 LAW OF COVERTURE. 
 
 by executory devise and springing use owe their existence to the 
 circumstance that these limitations are not favored by common 
 law principles.' The mounting of a fee upon a fee by executory 
 devise is a proof of that." And again : " Before the statute of 
 wills there was no executory devise, and before the statute of uses 
 there were no springing uses ;" and adds : " It was to the benign 
 temper of the judges who molded the limitations of the estates 
 introduced by them, whether original or derivative, so as to relax 
 the severer principles of the common law, and, among other things, 
 to preserve curtesy and dower from being barred by a deter- 
 mination of the original estate, which could not be prevented." 
 {Evcms V. Evans, 9 Penn. R. 190.) The law of the case as settled 
 by the court is, that a widow is dowable of a fee simple, deter- 
 minable by executory devise on her husband dying without issue 
 living at the time of his death. 
 
 § 278. A case 'similar to Evans v. Evans has been decided by 
 the court of appeals of the State of Kentucky, aud judgment 
 given in accordance with the principles of Duckworth v. Thirkell. 
 Judge Marshall, in his opinion, says : " As curtesy and dower are 
 almost identical in respect to the estate out of which they may 
 arise, the case just cited {BuoTcworth v. ThirkelV) might be regarded 
 as sufficiently in point to form a precedent for the one before us." 
 {Northcott V. WUpp, 12 B. Mon. E. 65, Y5.) 
 
 The case of Buchanan v. 8heffer, referred to by Washburn, was 
 this : a man devised the whole of his estate to his daughter, " to 
 her, her heirs and assigns forever ;" but if she should die without 
 issue, his whole estate was to be sold by his executors, and the 
 money arising therefrom, after his widow's decease, to be equally 
 divided among his brothers' and sisters' sons. The daughter 
 married, and had issue that died during her life. Her husband 
 was held entitled to her estate as tenant by the curtesy. {Buchanan 
 V. Sheffer, 2 Teate's R. 3Y4.) 
 
 § 279. On the contrary, one of the justices of the supreme 
 court of the State of New York, sitting at special term, has 
 expressly dissented from the views of Lord Mansfield, as expressed 
 in Buchworth v. Thirkell, and refused to adopt the doctrine of 
 that case. Brown, J., referring to what he regarded the rights 
 of the wife in the case he was considering, said : " This conclusion 
 conflicts with Lord Mansfield's judgment in the case of Buckworth 
 V. Thirkell (3 Bos. <& Pull. 652). It is the rule, however, given 
 
TENANCY BT CURTESY. ill 
 
 by Mr. Cruise in his treatise on tlie law of real property {tit. 6, 
 Dmo&r, ch. 3, § 33), and is the rule maintained by Mr. Park, with 
 rangular ability, in Tiis wort on "the law of dower, page 174, to be 
 found in the 11th volume of the Law Library." ( Weller v. Weller, 
 28 Barb. B. 588, 593.) 
 
 But the doctrine of Buckworth v. Thi/rhell, is more authoritatively 
 disputed in a case at general term of the same court, decided in 
 December, 1864. The case was this : A testatrix devised her real 
 estate to her daughter, and if such daughter " should never have 
 any children, or a child living at her decease," she devised the same 
 to one Hatfield, his heirs and assigns. The daughter married and 
 bad one child, which died before its mother. The wife made her 
 will, devising the land to her husband, and died. The court held 
 that the daughter took nothing more than a life estate, which was 
 turned into a fee, only by her having a child living at her death ; 
 and that, upon her death without issiie living, Hatfield took an 
 absolute estate in fee. And it was further held, that the surviving 
 husband was not entitled to a tenancy by the curtesy in the lands. 
 
 J."F. Barnard, J., delivering the opinion of the court, said: 
 " The wife of the defendant took nothing more than a life estate, 
 and the plaintiflF takes an absolute fee on her death. ITotwith- 
 standing this result, is the defendant entitled to a tenancy by the 
 curtesy in the lands, and was there seisin of the wife of an estate 
 of inheritance ? It is claimed by the defendant that Buckworth 
 V. Thirkdl (3 Bos. & Pul. 652, w) is an authority in his favor on 
 this point. I do not think the cases quite similar. In that case 
 the wife had an estate, but it was only liable to be defeated in 
 case she died before arriving at the age of twenty-one years. She 
 died before that age, and the husband was held to be entitled to a 
 tenancy by the curtesy. Here, from the will taken together, she 
 takes at no time but a life estate, which is to be turned into a fee 
 only by her having a child living at her death. This condition 
 has never happened, and at no time has she had an estate of inher- 
 itance to be defeated by the happening of a subsequent condition, 
 as in the case of Buckworth v. Thirkell. Besides, the case of 
 WeU&r V. Weller (28 Barb. 589) conflicts with that case. It is 
 there decided that when the estate of the husband is determined 
 by the happening of an event which defeats its further continuance 
 the estate in dower must be determined with it. This seems much 
 more reasonable and just. The husband takes his estate of 
 
412 LAW OF COVERTURE. 
 
 tenancy by the curtesy through the wife, and when her right is 
 determined his should also be determined. There is no estate 
 from which his tenancy by the curtesy can attach." {Hatfield v. 
 Sneden, 42 Barb. R. 615, 622.) 
 
 § 280. It will be observed, therefore, that the question whether 
 the right to curtesy continues after the estate of the wife has deter- 
 mined by limitation, or by an executory devise, is embarrassed by 
 conflicting authorities in this country, as well as in England. It 
 would seem, however, that the adjudged cases are more in harmony 
 with the affirmative of the proposition than otherwise. The doc- 
 trine that the right to curtesy does continue after such determina- 
 tion of the wife's estate, is expressly recognized in the states of 
 Pennsylvania, Kentucky and South Carolina ; and it is probably 
 the prevailing doctrine of the cases in other states ; while the 
 contrary doctrine is rather in accordance with the spirit of the 
 authorities in !New York, though the question docs not seem to have 
 ever undergone a very full or elaborate discussion before the courts 
 of that state. 
 
 It may be thought that this branch of the subject of tenancy by 
 the curtesy is so replete with perplexing refinements, and so 
 involved in mystery and technical subtleties, as to render the con- 
 sideration of it of no practical use, and that, therefore, too much 
 space has been devoted to it in this place. But while it may be 
 admitted that the system of estates at the common law is a com- 
 plicated and an artificial one, still it may be averred that it is a 
 system complete in all its parts, and is consistent with technical 
 reason, and may be fully comprehended by the logical and phUor 
 sophical mind. 
 
 § 281. There are some other circumstances and principles 
 involved in this question of tenancy by the curtesy, which remain 
 to be examined, and more clearly brought out. 
 
 It has been stated that in the case of a tenancy by the curtesy 
 it is well settled that the child must be bom alive in the life-time of 
 the mother, to entitle the father to the estate. If, therefore, the 
 mother dies, and the child is afterward delivered by the cEesarean 
 operation, it is not considered as existing before its birth, so as to 
 entitle the husband to curtesy. {Marsellia v. Thalhimer, 2 Paige^s 
 Ch. R. 35, 42.) The reason assigned in this case, why the husband 
 is not entitled to curtesy, viz. : that the child is nof considered to 
 be in existence before its birth, is hardly satisfactory, in view of the 
 
TENANCY BY CVBTESY. 413 
 
 well known rule, that a child in ventre sa mere is considered in 
 esse, not only for its own benefit, but for other purposes. Lord 
 Coke's statement is more consistent with other established rules in 
 similar cases. He says that " if, by the death of the wife in childbed, 
 it is necessary to resort to the csesarean operation, the birth of 
 such child will not entitle the husband to curtesy ; because the issue 
 was not iom during the coverture, or the Wife's life, and the land 
 descended in the mean time, and the estate of tenant by the curtesy 
 ought to take away the immediate descent ; and in pleading, it is 
 necessary for him to allege that he had issue during the marriage, 
 which in this case he cannot do." {Paine^s cc^e, 8 Coke's R. 69. Co. 
 Litt. 29 J.) It seems not to be enough that there be inheritable 
 issue, but the child must be iorn alive in the life-time of the mother. 
 The child may be in being in the life-time of the mgther, and yet 
 not be born during her life. 
 
 § 282. The doctrine that the wife must have seisin in fact applies 
 only in cases where her title is incomplete before entry, as when 
 she takes as heir or devisee, and. not when she takes by a con- 
 veyance which passes the legal title and seisin of the land. {Adair 
 V. Lott, 3 EiWs [iT. Y.'\ R. 182.) Where a feme-covert is the 
 owner of wild and uncultivated land, she is considered in law and 
 in fact possessed, so as to enable her husband to become a tenant 
 by the curtesy. An actual entry, or pedis possessio, by the wife or 
 husband during the coverture, is not requisite tp the completion of 
 a tenancy by the curtesy. {Smoot v. Leoatt, 1 St^ew. S. 590. Jack- 
 son V. Sdlick, 8 Johris. R. 262. Jackson v. Gilchrist, 15 il). 89, 
 Damis v. Mason, 1 Peter's R. 503, 506. Clay v. White, 1 Munf. 
 B. 162. Pierce v. Wannett, 10 Iredell's R. 446. Yide also Oreen 
 V. Liter, 8 Oranch's R. 229.) 
 
 If land is in lease for years, curtesy may be without entry, or 
 even receipt of rents, the possession of the lessee being deemed 
 the possession of the husband and wife. In fact, it is sufficient 
 seisin if the wife has a tenant in possession who holds at will, or 
 who entered under a contract to purchase her estate. {Jackson 
 V. Johnson, 5 Cow. R. 74. Powell v. Gossom, 18 B. Man. R. 179. 
 I/)wry V. Steel, 4 Earn. R. 170. 8 Cratch's R. 245.) 
 
 The seisin of one tenant in common is the seisin of the others. 
 Accordingly, when a person, in right of his wife, became a partner 
 with others in the ownership of a cotton factory and other mills, 
 and in the management of the business thereof, and received a 
 
414 LAW OF COVEETTTEE, 
 
 proportionate share of the profits from the time his wife became 
 interested in the property, until her death ; it was held that this 
 was a sufficient seisin of the wife to consummate the estate by the 
 curtesy in the husband. {Buckley v. Buckley, 11 Barb. R. 43. 
 JDe Grey v. Richardson, 3 Atk. R. 469.) 
 
 The seisin of the wife is sufficient to make the husband tenant 
 by the curtesy, although a vendee of the wife's ancestor be in the 
 actual possession of the land. ( Vrooman v. Sheplisrd, 14 Barb. R. 
 441.) 
 
 It is sufficient to give the husband a title to curtesy, if there has 
 been a seisin for a moment, although it is followed by an imme- 
 diate disseisin. {Pa/rker v. Oa/rter, 4 Ha/re^a R. 418.) 
 
 § 283. But if the wife is not ordinarily seised in her life-time of 
 an estate or interest in possession, there is no estate by the curtesy. 
 {Pond V. Bergh, 10 Paige's Ch. E. 140. Orr v. HoUiday, 9 B. 
 Mon. R. 59. Petty v. Malier, 15 ib. 591.) A mere nakedise sin 
 by the wife as trustee will not suffice to make the husband tenant by . 
 the curtesy, though she has the beneficial interest in the reversion. 
 Therefore, when a woman held a ground rent in fee, in trust for 
 another during his life, and she afterward married and died, and 
 then the cestui que trust died, the husband was held not to be 
 entitled to the rent, as such tenant. {Chew v. Commissioners of 
 /Southwark, 6 Rawle's R. 160.) Although the general rule of law 
 is that there must be an entry during coverture, to enable the 
 husband to claim by the curtesy, the rule was never inflexible. It 
 has always yielded to circumstances, as in the case of an advowson 
 or rent, or where an entry was prevented by force. In like man- 
 ner, if a man have a title of entry into lands, but does not enter 
 for fear of bodily harm, and he approach as near the land as he 
 dare, and claim the land as his own, he has presently, by such a 
 claim, a possession and seisin ih the land, as if he had entered in 
 deed. And under some circumstances, living within view of the 
 land will give the feoffee a seisin in deed as fully as if he had 
 made an entry. {Mercer v. Seldsn, 1 How. U. S. R. 54.) 
 
 In th6 State of Connecticut, it has been held,' that it is sufficient 
 for the claim of curtesy that the wife had title to the land, though 
 she was not actually seised. {Bush v. Bradley, 4 Day's R. 209. 
 KWne V. Beebe, 6 Conn. R. 494.) And in some of the states it 
 has been expressly held that constructive seisin is sufficient to 
 sustain the husband's claim as tenant by the curtesy. {Day v. 
 
TENANOT BY CUSTEST. 415 
 
 Cochran, 24 Miss. H. 261. /Stephens v. Heme, 25 ih. 349. Mer- 
 ritt V. ^rnie, 5 Ohio St. B. 307.) 
 
 It has been held under the statute of Massachusetts of 1845, 
 chapter 208, that the birth of living children after the conveyance 
 by a married woman of land held by her to her sole and separate 
 use, will entitle her husband, after her death, to an estate by the 
 curtesy in the land. {^Corner v. Chamlerlai/n, 3 Am. Laio Beg. 
 \N. /S.] 317. 8. 0. 6 Allm's B. 166.) 
 
 § 284. An estate by the curtesy cannot attach to a mere remain- 
 der ; that is to say, a husband cannot be tenant by the curtesy of 
 the wife's estate in reversion or remainder, unless the particular 
 estate be ended during coverture. {Pierce v. Hakes, 23 Penn. 
 B. 231. Eitn^ v. JSge, Ih. 305.) 
 
 To entitle a husband to an estate by the curtesy, the wife must 
 be seised in fact and in deed. It is not sufficient that the wife has 
 a seisin in law of an estate of inheritance. Hence, if there be an 
 outstanding estate for life, the husband cannot be tenant by the 
 curtesy of the wife's estate in reversion or remainder, unless 
 the particular estate be ended during coverture. There can be 
 no seisin in fact of a vested remainder limited on a precedent 
 freehold estate. 
 
 But when a life estate and the immediate reversion meet in the ^ 
 same person, the particular estate is merged in the greater estate. 
 And if the two estates xmite in & feme-covert, her husband is 
 entitled to a life estate as tenant by the curtesy. {Taylor v. Oould, 
 10 Barh. B. 388.) 
 
 § 285. It seems that tenancy by the curtesy is not in all cases 
 confined to the lands themselves, possessed by the wife during 
 coverture; but in some instances the husband has his right in the 
 proceeds of the land, when it was sold during coverture. This, 
 however, is never the case at common law, but depends upon the 
 provisions of a statute, as in respect to the sale of lands belonging 
 to an infant. Thus, when the real estate of an infant feme-cov&rt 
 was sold by order of the court of chancery, imder the act author- 
 izing the sale of infants' real estate, and the pm-chase-money 
 secured to her, or for her, by bonds and mortgages, which securities 
 were never in her possession or in that of her husband until after 
 her death, when he obtained the same as administrator of his wife ; 
 it was held that by the sale of the land under the direction of the 
 court there was no conversion of the real estate into personalty. 
 
416 LAW OF COVERTURE. 
 
 but that tlie proceeds were impressed with the same real uses 
 which' attached to the real estate before the sale ; and that such 
 proceeds descended, as the real estate would have done, to the heirs 
 at loAO of the infant, and did not go to her pereonal representatives 
 for distribution among her next of kin and others entitled thereto. 
 It is not decided in the case under consideration what the real 
 interest the surviving husband had in the proceeds of the sale of 
 his infant wife's real estate ; but if such proceeds descended to the 
 heirs at law of the wife the same as the real estate would have 
 done, the conclusion would seem to be inevitable that the husband 
 would have his rights as tenant by the curtesy in the proceeds, pro- 
 vided the other requisites of a tenancy by the curtesy were in the 
 case. {Shvmway v. Cooper, 16 Baa-l). B. 556.) It is a well settled 
 rule in equity that lands agreed to be turned into money, or money 
 into lands, are considered as that species of property into which 
 they were agreed to be converted ; and " the authorities show that 
 money agreed or directed to be laid out in land becomes land so 
 completely as to acquire all the property of land." (1 Lead. Cos. 
 in Ec[. 598, or *641.) And perhaps, as an incident of the rule of 
 equitable conversion, the husband would have his right by the 
 curtesy in the proceeds of his wife's land in the case stated. 
 
 If the wife's realty be sold in partition, the court will direct one- 
 third of the proceeds to be invested, and the interest to be paid to 
 the husband as tenant by the curtesy initiate, or to his assigns. 
 {Schermerhorn v. Miller, 2 Cow. R. 439.) 
 
 § 286. As a general proposition, in order that, the rules of prop- 
 erty may be uniform, equitable estates are governed by the same 
 rules as legal estates. An equitable estate, therefore, which if 
 legal would have given to the husband a title to curtesy, will have 
 the same effect in equity. ( Watts v. Ball, 1 P. Wms. B. 108.) 
 In the State of Pennsylvania, dower and curtesy are incident to 
 both legal and equitable estates. {Dubs v. Bubs, 31 Benn. B. 
 149.) 
 
 The husband has been held to be entitled to curtesy of an equity 
 of redemption. Lord Hardwicke so decided, because an equity of 
 redemption was to be considered an estate in the land, was trans- 
 missible from ancestor to heir, might be granted, entailed, devised, 
 or mortgaged, and might be barred by a common recovery ; also, 
 because the person entitled to equity of redemption is owner of the 
 land, and therefore in equity seised of the estate ; a seisin perfected 
 
TENANCY BY CURTESY. 417 
 
 in the case before him by the wife's possession. yCashome v. 
 Scarfe, 1 Ath. B. 603.) 
 
 In equity the rule is also, that what is agreed to be done, is 
 considered as actually completed. In accordance with this rule, 
 if money be Tested in trustees, by will, or othei-wise, in trust, to 
 purchase lands, with a declaration of trusts which would give the 
 wife an equitable estate tail, although the money be not converted 
 into real property during the life of the wife, yet her husband will 
 be entitled to curtesy. {Ounningham v. Moody, 1 Yes. Sen. B. 
 174. Sweetwpple v. Bvndon, 2 Vern. B. 536. Dodson v. Say, 3 
 Bro. Ch. Ca. 404.) But if the grant or devise be to the wife for 
 her separate use, and it manifestly appears from the conveyance 
 or will that it was the intention of the grantor, or devisor, that her 
 husband should not be tenant by the curtesy, this intention will 
 govern, and the husband will not be entitled to curtesy. {Burnet, v, 
 Davis, 2 P. Wms. R. 316.) Indeed, the hxisband may be excluded 
 from the control of or any interest in his wife's property, by the 
 conditions of the will or conveyance giving or granting him the 
 property, or by an antenuptial agreement. {Hardy v. Yan Ha/rTAn- 
 gen, 7 Ohio St. R. 208.) "Where, however, the intention to prevent 
 curtesy is not clear, courts of equity so far favor the husband's 
 right, that if, from the wife's interest, he is or would be at law 
 entitled to curtesy, they will not disappoint his title. {Steadman 
 Y. Bulling, 3 AtJe. R. i23-^27.) 
 
 When the estate is limited in trust for the sepwate use of the 
 wife for her life, with the equitable remainder or reversion in fee 
 to her, the decisions differ with respect to the husband's right to be 
 tenant by the curtesy. ( Yide BTeo/rle v. Greenbank, 3 Aik. R. 
 696, 716. Bolens v. Bixwell, 1 ii. 607. i*«« v. Jachon., 2 Bro. 
 G. C. 51. Morgan \. Morgan, 5 Madd. B. 4:08. FoUety.Tyrer, 
 14 Sim. R. 125.) It has, however, been held in the State of Penn- 
 sylvania, that where a testator devised his lands in trust for his 
 daughter, for her separate use, free from the control of any future 
 husband, without any power to alienate or to anticipate the income, 
 her husband surviving took his curtesy. ( Wightmam^s Oippeal, 29 
 Penn. B. 280.) 
 
 § 287. There are many incidents, privileges and powers belong- 
 ing to the estate of tenant by the curtesy, and there are also 
 liabilities incurred by the husband in respect of the right. Thus, 
 a tenant by the curtesy, as other tenants for life, is entitled to the 
 53 
 
418 LAW OF COVERTUBE. 
 
 emblements, and may dispose of them by his will, or if he makes 
 no such disposition they will belong to his executor or administra- 
 tor. So a tenant by the curtesy is entitled to the interference of a 
 court of equity for the removal of a satisfied term of years, which 
 would prejudice his title .in a court of law, whether such term be 
 outstanding or assigned to attend the inheritance. 
 
 An estate by curtesy is considered in many respects as a con- 
 tinuation of the estate of the wife, and the consequence is that the 
 husband takes it after the wife's death, with all the incumbrances 
 which would affect the estate in her possession if she were living. 
 He will be obliged in equity, to keep down the interest of the 
 charges upon the estate. It has been doubted whether a tenant by 
 the curtesy |s punishable for waste at common law, but his liability 
 to make satisfaction for waste committed stands on the same foot- 
 ing as other tenants for life. During his life he may be held for 
 damages by an action on the case, and the value of the timber or 
 other property acquired by the waste may be recovered against 
 him in an action of trover, or by a bill in equity for an injunction 
 and account ; and if the property taken off has been sold, an action 
 of assumpsit will lie for the money produced by the sale. After 
 his death, in cases of equitable waste committed by him, it has 
 been decided that a bill in equity lies against his executors for an 
 account ; although with respect to permissive waste suffered by 
 him, there is no remedy after his death. 
 
 A tenant by the curtesy may grant leases for the property, which 
 will continue so long as he lives, but he cannot lawfully dispose of 
 the estate for a longer period than during his life. In a word, 
 whatever a mere tenant for life may do, either as to passing or 
 changing his interest, a tenant by the curtesy may do. ( Yide 1 
 BrigMs Husband and Wife, 142-151, a/nd authorities there cited.) 
 
 It is proper to remark, that upon the death of the wife, the hus- 
 band is at once in as tenant by the curtesy, without having to 
 resort to any preliminary form to consummate his title to the same. 
 (1 Washl. on Real Prop. 142.) 
 
 § 288. The interest of a tenant by the curtesy, and also of a 
 tenant by the curtesy initiate, may be taken in execution for his 
 debts, and it may be set off by appraisement, or the rents and 
 profits may be levied upon at the election of the creditor. {Roberts 
 V. Whiting, 16 Mass. R. 186. Bu^d v. Bansdale, 2 Binn. R. 
 80. Mattooh v. Stearns, 9 Vt. R. 326.) But it seems that the 
 
TENANCY BY CURTESY. 419 
 
 ■widow of the execution creditor is not entitled to dower in bucIi an 
 estate. {GiUia v. Brown, 5 Cow. 12. 388.) 
 
 When the real estate of the wife in which the husband has a life 
 estate as tenant by the curtesy initiate, is sold under a decree in 
 partition, the creditors of the husband may by a creditor's bill, 
 reach his interest in the fund produced by the sale, to the extent 
 of his legal interest in the estate sold. {Ellsworth v. CooTc, 8 
 Paige's Ch. E. 643.) 
 
 It has been held by the supreme court of the State of New 
 York, in a case not reported, that the bankrupt's. tenancy by the 
 curtesy initiate, passes to the asssignee in bankruptcy, under 
 the act of congress passed in 1841, though such interest be not 
 mentioned in the schedule of property. {Williams v. Smith, Oen. 
 T. March, 1856.) Neither the tenant by the curtesy, nor one who 
 claims under him is entitled, under the Massachusetts statute of 
 1807, giving relief to persons who make improvements upon lands 
 which they afterward lose by reason of a defect in their title, to 
 an allowance for the increased value of the premises by virtue of 
 the buildings and improvements made by him. {Romey v. 
 Edwards, 15 Mass. li, 291.) 
 
 § 289. To enable the husband to acquire an interest in his 
 wife's land, he must be such a person as the law allows to hold 
 and enjoy real estate. Thus, an alien is not allowed at common 
 law to hold and retain land for his own benefit, accordingly, if the 
 husband be an alien, he will take no interest in his wife's real 
 estate, unless he is naturalized or made a denizen. 
 
 It has been held in the State of Massachusetts, that an alien 
 husband cannot hold the lands of his deceased wife as tenant by 
 the curtesy, although he had made his preliminary declaration to 
 become a citizen before the death of his wife, and completed his 
 naturalization after her death and before suit brought by her heirs, 
 the children of a former husband, to recover the premises which he 
 claimed as tenant by the curtesy. {Eoss v. Orisp, 20 Pich. B. 
 121.) The rule, however, is modified by the statutes of many of 
 the states, and whether the husband can hold his wife's lands will 
 depend upon the question as to his abihty to hold any land. 
 
 Naturalization removes all defects and disabilities ah initio, but 
 denization only removes them from the date of the instrument of 
 denization, and therefore the extent of the husband's rights in his 
 wife's property will depend upon the mode in which his disability 
 
420 LAW OF COVERTURE. 
 
 has been removed. The distinction, however, between a naturalized 
 citizen and a denizen, which prevails in English law has no appli- 
 cation in this country. By our law, there is no middle class 
 between aliens and citizens, except that in some of the states an 
 alien who has declared his intention to become a citizen is entitled 
 to take and convey lands, the same as a citizen, although in no 
 other respect is he favored beyond an alien who has taken no steps 
 toward becoming a citizen, 
 
 § 290. There are various ways by which the husband's right of 
 tenancy by the curtesy may be defeated or barred. Thus, if the 
 wife's seisin be defeasible by a condition annexed to the grant, and 
 the condition be broken, and the donor enters, the husband's right to 
 curtesy will be defeated, because the donor resumes his original 
 and formter estate, by which resumption the seisin of the wife is 
 the same as if it never existed, it being the donor's re-entry ab 
 origine, with all the rights, charges and incumbrances attaching to 
 it before the condition was broken. 
 
 The recovery of the wife's estate in an action against the husband 
 and wife wiU defeat the husband's title to curtesy, in consequence 
 of the eviction of her seisin and possession. But if the recovery 
 be afterward reversed, the husband will be entitled to curtesy. 
 
 There were many cases under the old practice of fines and 
 recoveries, where curtesy was defeated or barred, which it is 
 unnecessary to refer to, because fines and recoveries have been 
 abolished in England, and the practice is nearly or quite unknown 
 in the United States at the presient day. ( Vide 1 BrigMs Sus- 
 land and Wife, 152, 155, and authorities there cited.) 
 
 A conveyance in fee by a tenant by the cm-tesy, though by 
 indenture duly recorded, and with a covenant of special warranty, 
 is not a forfeiture of the estate. {McKee v. Pfont, 3 Dall. JR. 
 486. Jackson v. Mancius, 2 Wend. B. 357.) Neither is the 
 abandonment of an undivided portion of land by the tenant of 
 the curtesy for more than forty years, leaving it in the possession 
 of another tenant in common, whose occupancy was not an ouster, 
 a forfeiture of the estate. ( Witham v. Perkins, 2 Greent. P. 400.) 
 Nor will any forfeiture of her estate by the wife defeat the hus- 
 band's right by the curtesy. {Smoot v. Lecatt, 1 Stew. P. 590. 
 4 Kent's Com. 34.) 
 
 The husband does not forfeit his estate by the curtesy by his 
 adultery. {Sidney y. Sidney, 3 P. Wms. P. 269-276.) 
 
wife''s own pbopertt. 421 
 
 Whether an absolute divorce will destroy the right of curtesy, 
 depends upon the statutes of the States, and there is a variety in 
 the laws upon the subject. If the cause of the divorce arise before 
 marriage, the right to curtesy, as well as to other rights growing 
 out of the marriage, is gone; but if for causes subsequent to 
 marriage, the rule is not absolutely stable and uniform. ^ ( Vide 4 
 Rentes Com. 34, note 6.) , , 
 
 In the States of Vermont and Connecticut, it has been expressly 
 held that a divorce a viticulo terminates the husband's right to 
 curtesy. {Mattoelis v. Steams, 9 Vt. Ji. 326. Wheeler v. Eotchlciss, 
 10 Conn. B. 225.) And in the State of Alabama it has been as 
 distinctly held that a decree of divorce a mensa et thoro pro- 
 nounced against the husband, does not bar him of the right to 
 curtesy. {Smoot v. Lecatt, 1 Stew. R. 590.) 
 
 The whole subject of the husband's interest in his wife's real 
 estate has been under review by the reformers, and great changes 
 have recently been made by the potent hand of the law-giver, 
 which wiU be succinctly noticed in another place. 
 
 Tenancy by curtesy is abolished by st&,tute, and no longer exists 
 in the States of California, Indiana, Michigan, and some others of 
 the states. 
 
 CHAPTER XXIII. 
 
 -HEE tNTEEEST m HEE 
 HUSBAUd's PEESOKTAIi ESTATE AFTEE HIS DECEASE — HEE PAEAPHEE- 
 NALIA AND PIN-MONET ^HEE 6EPAEATE ESTATE. 
 
 § 291. The wife's real estate tmdergoes no change by the mar- 
 riage, unless it has been the subject of settlement, and on the 
 death of the husband it continues hers as before, with the restora- 
 tion of all those powers of disposition which the coverture had sus- 
 pended. With respect to her personal property we have seen that 
 by the strict rule of the common law, marriage operates as a gift 
 of the whole of it to her husband. This rule, however, may be 
 very much modified in favor of the wife by a court of equity, 
 which has the power of considering a feme-covert as sole, and will 
 
422 LAW OF COVERTURE. 
 
 often treat her as having interests and obligations distinct from 
 those of her husband. 
 
 When the husband becomes civilly dead, the wife may hold per- 
 sonal property as a feme-sole, and her disability is entirely at an end 
 on the termination of her husband's natural life, and all her rights 
 ■with respect to her property, which were dormant during the mar- 
 riage revive and come into being as soon as the coverture is at an 
 end. 
 
 § 292. By the common law, the wife's chattels real remain her 
 property until they are reduced to the possession of the husband, 
 and unless he disposes of them during his life-time, they survive 
 to her. If the husband should alien a part of a term for years 
 belonging to the wife, the remainder will survive to the wife ; and 
 she also takes by survivorship arrears of rent due on any lease 
 made by her before marriage, or by her and her husband after her 
 marriage. She also takes by survivorship aU her choses in action, 
 such as bonds, mortgages, and all negotiable securities passed to 
 her previous to or dm*ing her marriage. So also the wife has by 
 survivorship all actions which she and her husband might have 
 had for injuries to her property or person. All these interests of 
 the wife survive to her after the death of her husband. The way 
 and manner, in which the wife's survivorship in these interests may 
 be barred, have been fully discussed heretofore, and the considera- 
 tion of the subject need not be resumed here. ( Yide ante, chap. 
 XXI.) The wife's equity to a settlement out of her own property, 
 and against -whom, out of what property, and when it is given, 
 have also been considered in another place, and it is xmnecessary 
 to repeat the discussion here. (/5.) 
 
 § 293. There are some exceptions to the general rule at common 
 law, that the whole of the personal estate of the wife becomes her 
 husband's at the time of the marriage. Thus, what is understood 
 as the wife's paraphernalia, belongs to the wife upon the death of 
 her husband. This term comprises such apparel and ornaments 
 of the wife as are suitable to her condition in life. The word is 
 derived from the Greek word parapherna, that is, property belong- 
 ing to the wife over and above the dower which she brought to her 
 husband ; and what articles are to be considered the wife's para- 
 phernalia depends upon the rank and fortune of the parties. 
 Pearls and jewels, usually or sometimes worn by the wife, prop- 
 erly fall within the term. So when the widow claimed her gold 
 
WIF£l''S PARAPSEBNALIA. 423 
 
 ■watch, and several gold rings as paraphernalia, which had heen 
 given to her at the funerals of relations, the court decreed them to 
 her. {Mangay v. Hungerford, 2 Egmty Cases Ahridgedy 156, in 
 margin.) 
 
 When gifts are made by husbands to their wives of pearls, jewels, 
 and the like, and they are worn as ornaments, the articles are 
 regarded as paraphernalia, and not as gifts to the separate use of 
 the wives; and although the trinkets are only sometimes worn 
 by the wife, such occasional use of them will constitute them her 
 paraphernalia. {Graham v. Londonderry, 3 Atk. B. 394.) To 
 constitute that kind of property called paraphernalia, they must 
 have been the husband's, and given by him to his wife to be worn 
 by her, or at least they must have" been appropriated to her use. 
 {Graham v. Londonderry, sujora.) 
 
 Jewels purchased by the husband, and worn by the wife with 
 others belonging to her husband, become her paraphernalia in the 
 absence of evidence to the contrary; but family jewels, merely 
 worn by the wife, do not become part of her paraphernalia. {Jer- 
 voice V. Jervoice, 17 Beav. H. 566.) 
 
 As these ornaments are intended for the use of the wife, they are 
 usually given to her, and left in her custody, yet she has not the 
 power of alienating them during coverture, and only gets an abso- 
 lute title to them on the death of the husband. The himband has 
 the power of disposing of them during his life, but in 'order to 
 destroy the wife's right of survivorship, the disposition of the hus- 
 band must be a complete sale. The husband's power over his 
 wife's paraphernalia, is limited to acts which operate during his life, , 
 for he cannot dispose of such articles by will, neither can they be 
 made liable to legacies. {Ti^pping v. Tipping, 1 P. Wms. H. 729. 
 Snelson v. Corbet, 3 Atk. 369.) 
 
 § 294; The paraphernalia of the wife are subject to the debts of 
 the husband after his decease ; but this rule is confined to the omar 
 ments of the wife, such as jewels and a watch, for her necessary 
 apparel- is not liable to his debts. {2 Black. Com. 436. JVoy^s 
 Maxims, ch. 49, p. 188.) This liability of the wife's paraphernalia 
 to the husband's debts, exists both at law and in equity, but equity 
 so far favors this claim of the wife as to permit her to indemnify 
 herself out of the real assets of the husband, if his specialty credit- 
 ors exhaust his personal estate in the satisfaction of their demands ; 
 in other words, although after the husband's death this species of 
 
424: LAW OF COVERTURE. 
 
 property ia liable to his debts, if his personal estate is exhausted, 
 yet the widow may recover from the heir the amount of what she ia 
 obliged to pay in consequence of her husband's specialty creditors 
 obtaining payment out of her paraphernalia. {Tvpping v. T'lpping, 
 1 P. Wms. E. Y29. Snelson v. Corbet, 3 Ath. R. 369.) It has been 
 said, however, that the wife cannot be satisfied for this claim out of 
 the husband's real estate at all events ; for if the debts exhaust the 
 husband's personal fortune, and the creditors are only by simple con- 
 tract, and no. trust is created of the real estate for the payment of 
 debts, she can have no relief, and if the real estate be devised, 
 and the debts exhaust the personal estate, the widow cannot have 
 satisfaction decreed to her against the devisee ; this equity is to be 
 enforced only a;gainst the heir on whom the estate has descended, 
 and he cannot have the paraphernalia applied in exoneration of the 
 real estate. ( Vide Ridant v. Plymouth, 2 Atk. P. 104. Incledon 
 V. Northcote, 3 %. 438. Prdbert v. Morgcm,. 1 ih. 440. Glwncy 
 on Husband and Wife, 96, 97. Vide also Boynton v. Boynton, 
 1 Cox's. P. 106.) 
 
 § 295. Upon this subject. Lord Macclesfield said, "that if there 
 should not be assets, real and personal, at the testator's death, or at 
 least at the time when the jewels or paraphernalia were applied to 
 debts, then the paraphernalia should be liable." {Burton v. Pier- 
 point, 2 P. Wms. P. 79.) Upon this rule Mr. Eoper remarks : 
 " The above distinction taken by Lord Macclesfield, seems to be 
 founded upon this principle, that when the wife's right is left to 
 the provision of law, and the real and personal assets are insuffi- 
 cient to pay his debts, then for the sake of the creditors her para- 
 phernalia must be applied in payment of their demands, and not 
 detained from them in e^ectation of that which may never hap- 
 pen, a contingency of subsequent assets falling in ; and that such 
 possibility in contingency happening after the paraphernalia are so 
 applied, shall not, for the sake of certainty and quiet, as also from 
 the nature of such provision, entitle the wife, or the persons claim- 
 ing under her, to institute proceedings for the purpose of recover- 
 ing out of the accidental assets the value of the paraphernalia which 
 had been so applied. But when they are given to the wife by will 
 and the i-eal and personal assets are charged with debts and 
 legacies, then, since the wife is made a legatee of her paraphernalia 
 she, as well as any other legatee, or her representative, will be 
 entitled to an execution of the trust, and, upon the assets fallino- 
 
WIFMl^S PIN-KONET. 425 
 
 in, to have them, applied in the discharge of such legacy." {Roper 
 on Husband and Wife, 146.) 
 
 If the husband in his life-time simply pledge or mortgage his 
 wife's paraphernalia for money, his wife surviving him will be 
 entitled to have them redeemed out of his personal' estate, even to 
 the prejudice of legatees ; because her right is anterior and to be 
 preferred to their claims, which are merely voluntary. {Burton v. 
 Pi&irpoint, 2 P. Wms. B. 79.) 
 
 § 296. The wife may bar her rights to her paraphernalia in 
 several ways. Thus, if she entered into an agreement before mar- 
 riage with her intended husband, that she would claim no part of 
 his personal estate but what he should devise to her, this will be a 
 bar to her right in her paraphernalia. {Oholm^ v. Cholmely, 2 
 Yem. E. 83. Bead v. SneU, 2 Atk. B. 642.) 
 
 So when the husband takeS upon himself to bequeath to his 
 wife her paraphernalia for life, and she does not claim them 
 absolutely by her elder title as paraphernalia, it is presumed that 
 her administrator after her death will not be entitled to them. 
 ( Vide Clarges v. Albemarle, 2 Yem. R. 247.) It is therefore to be 
 considered as a legal inference, that if a widow, when her parapher- 
 nalia are bequeathed to her for life, do not manifest by some act 
 her intention to take them by her elder and better title, she will be 
 presumed to have elected to take them under the will, so as to bind 
 her executor or administrator; and this seems to be the doctrine of 
 the case of Cla/rges v. AXbema/rle, as understood by Mr. Bright. 
 ( Yide 1 BrigMs Husband and Wife, 294.) 
 
 § 297. Near akin to the wife's paraphernalia is what is familiarly 
 known as the wife's pin-money. This is understood to be an 
 annual income settled, or agreed to be settled, before marriage, by 
 the husband on his intended wife, or allowed by him to her, after 
 marriage, gratuitously for her personal and private expenditure, 
 for clothes and ornaments of her person during the coverture. 
 {Clancy's Huabamd and Wife, 376.) Pin-money is not regarded as 
 an absolute gift from the husband to the 'wife, nor like money set 
 apart for the sole and separate use of the wife during coverture, 
 excluding the jus mariU, but as a sum allowed for the wife's per- 
 sonal expenses, and to deck her person suitably to her husband's 
 rank, who has accordingly an interest in its expenditure. {Howard 
 V. Digly, 8 Bligh's [N. S.'] R. 269. Jodrell v. Jodrell, 9 Beav. 
 R. 45.) 
 
 54 
 
426 LAW OF COVERTURE. 
 
 Pin-money proper is usually secured by the creation of a trust 
 vested in trustees, by whose aid she may recover the arrears of it 
 whenever the same is withheld. However, it seems to be settled 
 that when the wife permits her pin-money to run in arrear for a 
 considerable time, upon surviving her husband she will be per- 
 mitted to claim arrears for one year only prior to his death. {Aston 
 V. Aston, 1 Ves. Sen. B. 267. Townsend v. Wyndham, 2 il. 7. 
 Peacock v. MonTc, II. 290. Offiey v. Offley, Free. Ch. 26.) This 
 rule is adopted by equity, says Lord Brougham, not so much on 
 account of the presumption o^ satisfaction of the wife's claim by 
 her acquiescence, as to secure the appropriation of the money to the 
 purpose for which it was intended. {Howard v. Digby, 8 Blights [ilT. 
 S.'] E. 269.) Should it appear that the wife has demanded her pin- 
 money without success,, perhaps she might be permitted to recover 
 all arrears at her husband's death. {Ridout v. Lewis, 1 Ath. B. 269.) 
 
 § 298. "Where the provision is expressed to be made for particular 
 purposes, as for the wife's iapparel or private expenses, and these 
 are all amply furnished by the husband, the wife will not be 
 entitled to any arrears of her pin-money, which might otherwise be 
 due at the time of the death of the husband ; for this is considered 
 a payment or satisfaction by the husband. {Howwrd v. Digby, 
 supra. Powell, v. RamJcey, 2 P. Wms. B. 84. Thomas .y. 
 Bennett, Ih. 341. Fowler v. Fowler, 3 ih. 355.) 
 
 In the case of Fowler v. Fowler, Lord Talbot said that when 
 pin-money was secured to the wife, and it appeared that the hus- 
 band, nevertheless, provided her with clothes and other necessaries, 
 that circumstance, during the time that she was so provided for, 
 would be a bar to any demand for arrears of pin-money. It is 
 understood, however, that this case turned upon the doctrine of 
 the satisfaction of a debt by a legacy. The husband settled one 
 hundred pounds a year upon his wife for pin-money. Two years' 
 arrears became due, when he gave her a legacy of five hundred 
 pounds. After the making of the will another year's arrears 
 became due, and then the husband died. Lord Talbot decided 
 that the legacy, was a satisfaction of the two years' arrears, because 
 it was larger than the debt, and that the creditor and legatee being 
 a wife made no difference. The rule is a reasonable one, and will 
 not be departed from. 
 
 It follows from the nature and purpose of pin-money that the 
 wife's executors have no claim against the husband or his estate 
 
wife's PIN-MONET. 427 
 
 even for one year's arrears. {Howard v. Dighj, 8 BUgNs [JN". S."] 
 R. 271.) 
 
 It has been held that, when the wife is entitled to pin-money, 
 and she is separated from her husband, no deduction will be made 
 out of her pin-money for alimony, because she would have been 
 entitled to maintenance beyond the pin-money if she and her hus- 
 band had lived together. {Ball v. Coutta, 1 Yes. & Bea. R. 305. 
 2 Brighfs Husbamd and Wife, 291.) 
 
 § 298. The court will sometimes not only refuse to assist the wife 
 to recover the arrears of her pin-money in the life-time of her 
 husband, but will actually prevent her trustees by injunction, from 
 using their legal remedies for the recovery of it. Thus, if the 
 wife be guilty of criminal conversation she is not entitled to her 
 pin-money, and should she attempt to recover it, the court would 
 restrain her trustees by injunction from proceeding to get it. 
 {More V. Scwrborough, 2 Eg. Ca. Ab. 156.) 
 
 So, also, if the wife should elope from her husband without good 
 and justifiable cause, this will be a bar to a recovery of her pin- 
 money. It has been held, however, that the injunction will be 
 granted on the ground of adultery, only in a case where the offense 
 was plainly put in issue in the cause, and plainly proved. {Moore 
 V. Moore, 1 Aik. JR. 276.) If the wife leave her husband in con- 
 sequence of ill-usage, or other reasonable grounds, or the husband 
 have acquiesced in her departure, equity will not interfere. 
 
 The wife has not the same power with respect to her pin-money, 
 that a feme-sole has in regard to her own property. She cannot 
 convey, or in any way dispose of her interest in it to a third person. 
 She may, indeed, bestow of the gales as she receives them, but she 
 cannot make a total disposition of the entire annuity. Equity 
 would not enforce or restrain such an act, because it would defeat 
 the very intent and object of the first creation of the allowance, for 
 it is designed especially for the private expense and personal use 
 of the wife. {Clam.cy's Husband and Wife, 380, 381.) 
 
 § 299. The distinct property which the wife has in her parapher- 
 nalia and pin-money, naturally leads to the consideration of the 
 wife's separate estate at large. In passing, however, it may be 
 remarked with respect to her paraphernalia, that what shall be so 
 considered irrespective of the husband's debts, is provided for, and 
 to some extent designated by the statutes of the several states. 
 These statutory provisions will be noted in another place. 
 
428 LAW OF COVERTURE. 
 
 The s,abject of the wife's separate estate, independent of statute, 
 is one of considerable importance, and the nature of it needs to be 
 "well understood. There are certain principles peculiar to this 
 species of property, the manner of acquiring and enjoying it, the 
 power and manner of disposition exercisable by the wife over it, 
 and the aid afforded by equity in the protection of the estate, 
 which must be fully comprehended before the subject is under- 
 stood and properly appreciated. 
 
 § 300. "We have seen that at the common law, a feme-covert is 
 incapable of possessing personal property as her own. But there 
 may be a trust for her sole benefit which a court of equity will 
 take care to see strictly performed. Property of any description 
 may be limited to the use of a married woman; but whether that 
 use shall be separate or not, and whether her husband shall be 
 barred of the interest which the law gives to him in the possession 
 of his wife, depends upon the intention of the donor. If the inten- 
 tion of the donor is ascertained to be that the use is for the wife 
 alone, and not for her husband, equity will give effect to it without 
 any regard to the legal maxim, that " the husband is the head of 
 the wife, and, therefore, all that she has belongs to him." {FincKs 
 Lam), 29. Clcmcy's Hus. c&Wife, 251.) And every kind of prop- 
 erty, including estates in fee simple, and chattels personal, may be 
 subject to a trust for the wife's separate use, which will be sup- 
 ported in equity. {Baggrett v. Meux, 1 PA. H. 628. Newlamd v. 
 Paynter, 4 Myl. cSs Ora. R. 408. 10 Sim. B. 378.) But in all 
 cases, the intention to create a trust estate for the wife must clearly 
 appear. No technical words are necessary, provided they indicate 
 with clearness and certainty, that such w;as the intention of the 
 grantor. {Hmmlton v. Bishop, 8 Yerg. B. 33.) The words " for 
 her own use and benefit," or " to pay the same to her and her 
 assigns," or " to pay the same into her own proper hands to and for 
 her own use and benefit," have been held not sufficient to give the 
 wife a separate estate. {Kinsington v. JDoUand, 2 Myl. d; ICeen's 
 Ch. B. 184. Dakvns v. Beresford, 1 Gh. Cos. 194. Tyler v. Zake, 
 2 Buss. S My. B. 183.) On the contrary, the words, " for her 
 own use," have been differently construed in this country. '( Vide 
 Jameson v. Brady, 6 Serg. <& BawWs B. 467.) Any words 
 showing the intention will sufSce. {Gaines v. Boor, 3 Met. [By.] 
 B. 507.) 
 
wife's separate estate. 429 
 
 § 301. With respect to the words -wliicli will be sufficient to 
 mipart an intention to create a trust for the wife, Judge Story has 
 the following : 
 
 " On the one hand, if the language of a marriage settlement 
 made before marriage, or if a gift or bequest to a married woman 
 after marriage, be, that she is to have the property 'to her sole 
 use or disposal;' or, 'to her sole use and benefit;' or, 'for her 
 own use and at her own disposal ; ' or, ' to her own use during her 
 life, independent of her husband;' or, 'that she shall enjoy and 
 receive the issues and profits ;' or, ' that it is an allowance as, or 
 for pin-money' {eo nomine) ; in all these cases, the marital rights 
 of her husband will be excluded, and the property will be for her 
 exclusive use. So, a bequest to a married woman, ' her receipt to 
 the executors to be a sufficient discharge to the executors,' is 
 equivalent to saying to her sole and separate use. So, money 
 paid to the husband 'for the livelihood of the wife;' and 
 money given to a married woman for her own use, ' indej)endent 
 of her husband,' and money or stock given to such married 
 woman, ' not to be disposed of by her husband, without her con- 
 sent,' will be construed to give her the property to her ,sole and 
 separate use. So, a bequest to a married woman and her infant 
 daughter, to be equally divided between, them, share and share 
 alike, ' for their own use and benefit, independent of any other 
 person,' will be construed to mean to their sole and separate use. 
 So, a bequest to a married woman, ' for her benefit, independent 
 of the control of her husband,' will receive the like construction. 
 In all these cases, the words manifest an unequivocal intent to 
 exclude the power and marital rights of the husband. 
 
 " On the other hand, a gift or bequest after marriage, to a mar- 
 ried woman, ' for her own use and benefit,' or ' to pay the same 
 into her own proper hands to and for her own use and benefit,' 
 have been held not to amount to a sufficient expression of an inten- 
 tion to exclude the marital rights of the husband ; for, although 
 the money is to be paid into her own hands, or to her own use, yet 
 there is nothing in that inconsistent Avith its being subject to his 
 marital rights. So, an annuity given in trust for a married woman 
 xfor life, ' to pay the same to her and her assigns,' will not exclude 
 the marital rights of the husband." (2 Story^s Eq^. Jur. §§ 1382, 
 1383.) 
 
430 LAW OF COVERTURE. 
 
 Judge Story gives no express opinion of his own upon the sub- 
 ject, but simply gives the tenor of the authorities, which he cites 
 in order under the sections quoted. 
 
 § 302. The language of the trust is usually interpreted to sustain 
 the marital rights of the husband, if it can, by any reasonable 
 construction, be interpreted to effect that object. A case in the 
 English high court of chancery illustrates very nicely this inclina- 
 tion of the courts. George Hoffman, by his will, gave to his sister 
 Mary Brown, and his brother, William Hoffman, certain moneys. 
 Baying, " which sum or sums, the interest to be equally divided 
 between them, the principal to be lodged in the bank or some 
 secure place, at the death of my sister Mary Brown, then one-half 
 of the principal to be equally divided between her children ; the 
 husband of the said Mary Brown by no means to have any part 
 whatever, but to be entirely for the poor children, and should she 
 have none alive, in that case the said sum is to become the prop- 
 erty of my brother "William's children, equally to be divided ; and 
 after the death of the said brother and his wife, then the other half 
 of the principal is to be equally divided among his children." 
 Daniel Brown, the husband of Mary Brown, became a bankrupt, 
 and, upon the question whether the share of his wife was given to 
 her separate use for life, the master of the rolls said : " Upon the 
 first point it has been contended, that there is a plain, evident 
 intention, that the interest should be to the sole and separate use 
 of Mary Brown. I profess, upon reading it over and over again, I 
 can hardly bring myself to think such an argument has any founda- 
 tion whatever, for nothing is given to her but the interest, no part 
 of the principal, and it is given in words that cannot by any 
 ingenuity be tortured to deprive the husband of that right the 
 law gives him. It is said, these words must mean that the husband 
 shall have no part whatsoever of the interest before given ; other- 
 wise they are unnecessary and superfluous. This is admitted ; but 
 it is no uncommon thing for the testator to suppose the father 
 would have the fingering of the money given to the children, and 
 tt might be inserted to prevent that. I cannot apply it to any thing 
 but the last antecedent. What is to be divided among them? 
 JS'ot the interest ; for they had no share of that. The interest only, 
 therefore, is given to the wife, and, there being no restriction, it 
 must be subject to the right of the husband; but his assignees 
 must make a provision for the wife, before they can call it out of 
 
VtlFS'S SEPARATE ESTATE. 431 
 
 ttis court." {Brown v. Clark, 3 Yes. B. 166.) Here it will be 
 observed the language is very nicely interpreted to sustain the 
 marital rights of the husband, but in all cases the courts hold that 
 the intention to deprive the husband of his rights must be clear 
 and unequivocal. 
 
 § 303. It was formerly doubted whether a female could take an 
 estate to her separate use, so that her rights could be protected as 
 against her husband, unless trustees were interposed. But it is now 
 well settled that the intervention of trustees is not indispensable, 
 though it is conceded that in strict propriety the better practice is 
 to interpose trustees. It has been expressly held, upon authorities 
 a century old, that when personal chattels are bequeathed to a 
 feme-covert for her separate use, or to a single woman free from the 
 control of her future husband, the "court of chancery will protect 
 her interest therein against the creditors of her husband, although 
 no trustee is named in the will of the testator to hold them for her 
 separate use. {Shirley v. Shirley, 9 Pcdge^s Ch. R. 363.) Or, as 
 Judge Story extracts the rule from a large number of authorities 
 which he cites, both English and American, " Whenever real or 
 personal property is given, or devised, or settled upon a married 
 woman, either before or after marriage, for her separate and 
 exclusive use, without the intervention of trustees, the intention of 
 the parties shall be effectual in equity, and the wife's interest pro- 
 tected against the marital rights and claims of her husband. In 
 all such cases the husband will be held a mere trustee for her ; and, 
 although the agreement is made between him and her alone, the 
 trust will attach upon him, and be enforced in the same manner 
 and under the same circumstances that it would be if he were a 
 mere stranger." (2 Story^s J^q. Jwr. § 1380.) 
 
 So the rule seems to be well settled that in equity no trustees 
 are necessary, whether the devise or settlement was before or 
 during coverture, or concerning real or personal property. ( Yide 
 Jamison v. Brady, 6 Serg. & Rawle^s R. 467. Abramis v. Whit- 
 more, 4 Dessau. \_S. C:\ B. 255.) 
 
 § 304. An estate to the separate use of a married woman may 
 be created either before or during coverture. Before marriage it 
 may be created by the woman herself of her own property, or by 
 the intended husband, or by a stranger. During the marriage the 
 estate maybe created by the husband, or by a stranger, but not 
 by the wife ; as she would then be rendered incapable of disposing 
 
432 1,AW OF COVERTURE. 
 
 of any property which had not been already limited to her sole 
 use. {Coomes v. EUvng, 3 AtTc. B. 679.) Before marriage a 
 woman may vest her entire fortune in trustees for her own use, so 
 as to deprive her intended husband of any share in it or control 
 over it, a.nd she may make such a settlement of it as to enable 
 herself to carry on trade with her own money, and not to render 
 it or the produce of it liable to the debts of her husband. {Jar- 
 mcm v. Woolstcm, 3 Term li. 618. Dean v. JSrown, 12 Miff. O. 
 L. li. 62.) But a disposition of her property for her separate use 
 previous to her marriage, may be impeached by her husband, if 
 any fraud has been practiced upon him with respect to it. If 
 it be made without her intended husband's privity, it will be 
 regarded as being in derogation of the rights of marriage, and 
 will not bind him. {Glcmcy's Husband cmd Wife, 252. Vide 
 also IMcer v. Sjnith, 4 Wash. O. C. B. 224.) 
 
 It has been held that no conveyance of a term for years before 
 marriage, in trust for the separate use of a woman, whether it be 
 made by herself or by any one else, will bar her future husband's 
 legal right over it, unless it be made with his privity and consent. 
 But the validity of such a trust, especially from a third person, is 
 now fully established, and when a term for years is settled to the 
 wife's separate use, the husband cannot dispose of it. {Tullett v. 
 Armstrong, 4 Myl. c& Cra. R. 395.) If the trust, however, is con- 
 fined to a particular coverture, it will of com-se be inoperative 
 against a second husband. {Bradley v. Hughes, 8 Sim. B. 149. 
 Knight v. Knight, 6 ih. 129. Benson v. Benson, Ih. 126.) A 
 gift to a woman then married " for her whole and sole use during 
 her life, free from the control of any fuinire husband," has been 
 held efiectual as well during the then existing as a future cover- 
 ture. {SUedman v. Poole, 6 Hare's B. 193. 11 Jw/'.-449, 555.) ' 
 
 The general rule is that in equity the wife is capable of taking 
 real as well as personal property, of every name and nature, to her 
 own separate use, and of holding it independently of her husband. 
 {Suiter v. Turner, 10 Iowa B. 61Y.) And when both husband 
 and wife have always treated as the wife's separate property, 
 money and notes taken for the loa,n of money belonging to her 
 before or during marriage, her right to dispose of the same will 
 be recognized by both law and equity in the State of Vermont, 
 and by equity everywhere. {Caldwell v. Benfrew, 83 Vermont B. 
 213.) 
 
WIFH^S SEPARATE ESTATE. 433 
 
 § 305. When the husband, before marriage, agrees in writing 
 that his wife shall be entitled to specific parts of real or personal 
 estate for her personal use, but, in consequence of the property not 
 having been so actually settled, the legal title to it becomes vested 
 in him by the subsequent marriage, in all such cases the husband 
 will be a trustee for her separate use. The power of the wife over 
 her separate property may be qualified by the term^ of the instru- 
 ment securing it to her. Thus, when there was a bequest of money 
 and leaseholds to a feme-sole, " for her own absolute use, without 
 liberty to sell or assign during her life," it was held that she took 
 the property absolutely, but without any power to dispose of it 
 during her life. {Baker v. Newton^ 2 Beam. B. 112. 2 Storifa 
 Eq. Jur. % 1382, a.) 
 
 If the agreement merely gives to the wife disposing power over 
 her property in general terms, it will be considered to apply only 
 to what she has at the time, and not to subsequent acquisitibns. 
 {Pilkmtm v. Cuthl&rtson, 1 Bro. P. O. 337.) 
 
 A devise to trustees for the wife's separate use in terms which 
 would execute the use in the wife, will be held to vest the legal 
 estate in the trustees, in order to effectuate the testator's intention 
 by excluding the control of the husband. {JVemlle v. Smmdera, 1 
 Vem. B. 415. Jones v. Say, 1 Eq. Ab. 383. Harton v. Hartoii, 
 7 Term R. 652. Manjokins v. iMscomhe, 2 Swanst. B. 391.) But 
 it is said that if the trust be secured by deed in similar terms, it 
 will not be so construed. ( Williams v. Wales, 13 Meea. da Wels. 
 B. 166.) ' 
 
 Wben the husband conveys property to a trustee for his wife, 
 she takes the same, as against him, as a separate estate. {Spencer 
 V. Godnjoim, 30 Ala. B. 355.) 
 
 § 306. "With respect to the wife's power of disposition over her 
 separate estate, much depends upon the fact as to whether or not 
 there are conditions annexed to her power of disposal or enjoyment 
 thereof. In regard to personal estate, it has long been settled that 
 when personal property is actually given or settled, or is agreed to 
 be given or settled, to the separate use of a married woman, she 
 may dispose of it as a feme-sole to the full extent of her interest. 
 {Fetbi/place v. Gorges, 1 Yes. Jwn. B. 46.) The general principle 
 applicable to all such cases is, that when once the wife is permitted 
 to take personal property to her separate use as a feme-sole, she 
 must take it with all its privileges and incidents, one of which is the 
 05 
 
434: ZAW OF COVERTURE. 
 
 jus disponendi; and a court of equity will enforce all of the rights 
 of the wife as against the husband and his representatives, and all 
 others. {Rich v. CoGhell, 9 Ves. E. 369. Wagstaff v. Smith, Tb. 
 530. BuTchaU v. BurohaU, 3 Add. Ecc. R. 263. Doe v. Sta:ples, 
 2 Term. R. 695. Wright v. Englefield, Ambler's R. 468. 2 Edw. 
 R. 239. Fybus v. Smith, 3 Rro. Ch. R. 339. Dowell v. i>ew, 1 
 Younge <& Coll. New R. 545.) And the wife has the same power 
 of disposing of reversionary interests, when settled to her separate 
 use, as of interests in possession. (Sturgis v. Corp, 13 Yes. R. 190. 
 Seaden v. Mosher, McClelcmd (& You. R. 89.) So, also, it has 
 long been settled with respect to rents and profits of real estate, a 
 gift of them to, or rather in trust for, the wife for her separate use, 
 enables her to dispose of them as a feme-sole. (Hulme v. Tenant, 
 1 Bro. 0. C. 16.) The principle is also well settled that the vrife 
 has a general power to dispose of the savings arising from her 
 separate property, for the reason that having the power to dis- 
 pose of the principal, she has necessarily the like power over its 
 produce; for the sprout is to savor of the root, and to go the 
 same way. {Gore v. Knight, 2 Vern. R. 535. Gold v. Rutland, 
 1 1^. Ca. Ab. 346, pi. 18. Cecil v. Juxon, 1 Atk. R. 278.) But 
 when the wife does not dispose of such savings, the quality of 
 separate property ceases at her death, and the husband is entitled 
 to them by his marital right. {Molony v. Kermedy, 10 Sim. R. 
 255. Tugman v. MopTti/ns, 4 Man. & Gr. R. 389.) Arrears of sepa- 
 rate estate, which were due to the wife at the time of a second 
 marriage, have been held to belong to her as separate estate. 
 (Ashton V. McDougall, 5 Beav. R. 56.) The wife having the 
 power of absolutely disposing of her separate estate, she may con- 
 sequently make grants out of it, or otherwise incumber it. ( Wag- 
 staff V. Smith, 9 Ves. R. 521. Parkes v. White, 11 ib. 210. 
 Power V. Bailey, 1 Ball <& Beatty's R. 49.) 
 
 § 307. With respect to the separate estate of &fem£-covert, which 
 courts of equity have long recognized and acted upon, in a late 
 case in the supreme court of the State of New York, it was said : 
 " Such separate estate was a provision for the wife's separate use 
 and benefit, independent of her husband, in which he had no 
 interest, over which he had no right of control, which was usually, 
 though not neceparily or invariably, held by a trustee, and which 
 she disposed of by way of appointment. She could not, at common 
 law, hold the legal title to property, either personal or real, for the 
 
WIFlfS SMP ABATE ESTATE. 435 
 
 reason that during her state of coverture she and her husband were 
 considered one person, and her identity, so far at least as the right to 
 hold was involved, was lost or merged in him. Hence, there was no 
 way at law in which such separate estate of the wife could be 
 reached to satisfy the demands upon it, however equitable and just ; 
 and although they may have been created by her for her individual 
 benefit and upon the credit of her separate estate. (2 Story^s Eq. 
 Jur. %% 1366, 1367, 1368.) To prevent the great injustice which 
 might otherwise arise, and inasmuch as the wife's creditors had not 
 the means at law of compelling payment of her debts which she 
 contracted to pay out of her separate estate, courts of equity under- 
 took to give effect to them, not as personal liabilities, but by laying 
 hold of the separate property as the only means by which they 
 could be satisfied." i^.Spence's Hist, of Eq. Jur. of Ch. 324.) The 
 judge then goes on to show that the only difference between the 
 separate estate of a married woman, as recognized and acted upon 
 by courts of equity for centuries, and their title to property 
 acquired or held under a statute is, " that the former is an equita- 
 ble and the latter a legal estate or title." {Colmin v. Currier, 22 
 Barl. R. 371, 387.) 
 
 § 308. It was formerly a matter of doubt, in case the trust was 
 created before coverture and rested in an antenuptial agreement 
 between husband and wife, whether the wife could dispose of her 
 separate real estate, although it was conceded that she had full 
 power over her separate personal estate. On this subject Lord 
 Hardwicke said : " Agreements for settling estates to the separate 
 use of the wife on marriage are very frequent, relating to both 
 real and personal estate. As to personal property, undoubtedly, 
 when there is an agreement between husband and wife before mar- 
 riage, that the wife shall have to her separate use either the whole 
 or particular parts, she may dispose of it by an act in her life or 
 will. She may do it by either, though nothing is said of the man- 
 ner of disposing of it. But there is a much stronger ground in that 
 case than there can be in the case of real estate, because that is 
 to take effect during the life of the husband ; for, if the husband 
 survives he is entitled to the whole, and none can come into a 
 share with the husband on the statute of distributions. Then such 
 an agreement binds and bars the husband, and consequently bars 
 every body. But it is very different as to real estate, for her real 
 estate will descend to her heir at law, and that more or less 
 
436 LAW OF COVHRTUBE. 
 
 beneficially; for the husband .may Tje tenant by the curtesy if they 
 have issue, otherwise not. But still it descends to her heir at law. 
 Undoubtedly, on her marriage, a woman may take such a method, 
 that she may dispose of that real estate from going to her heir at 
 law, that is she may do it without a fine. But I doubt whether it 
 can be done but by way of trust or of power over an use." {Pea- 
 cogTc v. Monk, 2 Ves. B. 191.) 
 
 § 309. "With respect to the distinction made by Lord Hardwicke 
 between the real and personal estate of the wife, and his doubt in 
 regard to her power over her separate real estate. Judge Story 
 says : " But this doubt, however powerfully urged upon technical 
 principles, has been overcome; and the doctrine is now firmly 
 established by the highest authority, that in such a case courts of 
 equity will compel the heir of the wife to make a conveyance to 
 the party in whose favor she has made a disposition of the real 
 estate ; in other words, he will be treated as a trustee of the donee, 
 or appointee of the wife. So that it may now be laid down as a 
 general rule, that all antenuptial agreements for securing to a wife 
 separate property will, unless the contrary is stipulated or implied, 
 give her, in equity, the full power of disposing of the same, 
 whether real or personal, by any suitable act or instrument in her 
 life-time, or by her last will, in the same manner and to the same 
 extent as if she were a feme-sole. And in all cases where a power 
 for this purpose is reserved to her by means of a trust, which is 
 created for the purpose, she may execute the power without joining 
 her trustees, unless it is made necessary by the instrument of 
 trust." (2 Story's Eq. Jur. % 1390.) 
 
 And it has been held that a feme-covert having a separate estate 
 may dispose of it or of its income by gift or loan to her husband ; 
 and that his receipt or use of her money with her consent, is 
 sufficient to raise the presumption of a gift to him. {Rinney v. 
 Phillips, 50 Penn. R. 382. Magler v. Ingersoll, 7 ib. 204. 
 McGUnsey''s wppecd, 14 Serg. c6 Remits E. 64. Ware v. Hagner, 
 3 Wiiart. P. 48.) This doctrine, of course, is necessai-ily limited 
 to those cases where there is no restraint upon the wife, by the 
 instrument giving her the separate property, as to her power of 
 disposing of it. In the absence of any fetter on anticipation the 
 wife has the same power over her separate estate as if she were 
 unmarried. Her disability to bind herself or her general property 
 is left untouched • but she may pledge or bind her separate prop- 
 
wife's separate estate. 437 
 
 erty, and the court, may proceed in rem against it, though not in 
 personam against herself unless there is a statute allowing it. 
 
 § 310. There seems to be a material distinction between real 
 and personal estate of the wife, in regard to the wife's power over 
 it, when the power rests merely upon a post-nuptial agreement of 
 the husband. As to her personal estate, the wife's power to dis- 
 pose of it only affects the husband's rights and hence his assent to 
 the disposition of it will bind him. But the case is different with 
 respect to real estate, for here her heirs may be affected. The 
 husband may bind his own interest by his post-nuptial agreement, 
 but he cannot encroach upon the rights of the heir who is not a 
 party to the agreement. The heir in such a case will tate the real 
 estate of the wife unaffected by the agreement. (2 Siory^s Eo[. 
 Jur. § 1391 and the authorities there cited.) 
 
 With respect to the wife's power over real estate given to her 
 by a third person during coverture for her separate use, "the 
 received doctrine seems to be, that if an estate is, during coverture, 
 given to a married woman and her heirs for her separate use, 
 without more, she cannpt in equity dispose of the fee from her 
 heirs ; but she must dispose of it, if at all, in the manner pre- 
 scribed by law." And yet, in such a case, if power is expressly 
 given to the wife to dispose of the estate by the terms of the gift, 
 courts of equity will enable her to exercise such power, notwith- 
 standing no trustees are interposed. (2 Story^s Eq. Jur. § 1392, 
 and authorities there cited.) There is no doubt that a gift of per- 
 sonal estate or of the rents and profits of real estate, to a married 
 woman for her separate use during her life, would give her a com- 
 plete power to dispose of the same. (/5.) 
 
 In 1838, Lord Langdale, master of the rolls, reviewed the con- 
 tradictory cases, and came to the conclusion, first, that- if the gift 
 be made to a woman for her sole and separate use, without more, 
 she has, during coverture, an alienable estate independent of her 
 husband ; second, that if the gift be made to her sole and separate 
 use without power to alienate, she has, during the coverture, the 
 present enjoyment of an unalienable estate ; but that in either case 
 she has, while discovert, the power of alienation. The restraint is 
 annexed to the separate estate only, and the separate estate has 
 its existence only during coverture. (Tullett v. Armstrong, 1 
 Beavam!s R. 1, 20.) And subsequently the lord chancellor con- 
 sidered that case as settling the doctrine of the court. {BaggeU v. 
 
438 LAW OF COVERTURE. 
 
 Meux, 1 Phillip's JR. 627. 2 Kenth Commentwries 165, notes a, 
 and 1.) 
 
 Personal property settled upon the wife as her separate estate 
 goes to her next of kin, after her death. {GamUe v. JS'aine, 5 
 Sand. B. 465.) 
 
 § 311. When no mode of disposition is prescribed for the wife 
 to dispose of the funds settled to her separate use, any appoint- 
 ment of such property in writing is sufficient. But there are cases 
 in which the property is not only limited to the separate use of the 
 wife, but she has expressly given to her a power of appointment. 
 
 When there is an express limitation for life, with a power to 
 dispose by will, the' interest is equivalent only to an estate for life, 
 and the power is to be executed ^^*ma facie at least by will, on the 
 ground that a partial interest having been expressly given, it will 
 not be permitted, contrary to the intention expressly declared, to be 
 enlarged by implication. {Bradley v. Westcoit, 13 Yes. S. 445, 
 451. Anonymous, 3 Sim. JR. 71. Major v. Lansley, 2 Buss. c& 
 Mylne's E. 355.) 
 
 From the authorities the. following conclusion may be drawn : 
 That when the wife takes an express estate for life in the fund, with a 
 power to appoint the principal after her death, in such instances 
 the wife can only dispose of the capital by an execution of her 
 power, which may be immediate, if the power authorize a deed ; 
 but if it require the appointment to be made by will only, the dis- 
 position cannot take effect till after the appointor's death, and the 
 wife is precluded from making an immediate disposal of the fund. 
 {Doe v. Thorley, 10 East's B. 438. Sachett v. Wray, 4 Bro. C. G. 
 483.) 
 
 § 312. It has been held sometimes, that although an express 
 estate be given to the wife's separate use for life, with a power to 
 dispose of the principal, yet if in default of appointment such 
 principal be limited to her executors or administrators, and not to 
 her next of kin, the absolute interest in the fund will vest in her, 
 and be disposable with her husband's concurrence, without resort 
 to t«e particular power given her for the purpose. Upon this 
 subject, Mr. Jacob remarks: "A distinction is to be noticed 
 between these cases where, after a limitation to a party for life, in 
 default of appointment to the same party or to his or her represent- 
 atives, and those in which, in default of appointment, the principal 
 is limited or results to other persons. In cases of the latter class, 
 
WIFE^S SEPARATE ESTATE. 439 
 
 the donee lias not the absolute interest; if the power be 'not exer- 
 cised, the limitation in default of appointment takes effect and 
 vests the principal in others ; it can therefore only be disposed of 
 by virtue of the power. In cases of the former class the donee has 
 the entire beneficial interest in the principal, and consequently (if 
 not under disability) may dispose of it independently of the power 
 by virtue of the general right of alienation which is incident to 
 property. But if the donee be a feme-covert, her absolute right 
 to the property does not carry with it a general right of alienation 
 unless the property be given to her separate use. If the principal 
 be in effect given generally to her separate use, she has an unquali- 
 fied power of disposition ; if not, it seems that she can only dispose 
 of it by means of the power." (2 Bop, Husbamd and Wife, 200 n^ 
 
 Mr. Roper is of the opinion that when the limitation in default 
 of appointment is to the wife's executors or administrators, it will 
 be required that she should execute her power in order to dispose 
 of the fund during the m'arriage. (Ih. 212.) 
 
 An express provision that in the event of the wife surviving the 
 husband the property shall be absolutely hers, implies an exclusion 
 of a power of so appointing it during the coverture as that it shall 
 not in that event belong to her. This doctrine has been recognized 
 in several instances in the English courts. (Yide Richards v. 
 Chamhers, 10 Ves. H. 380. Lee v. Muggeridge, 1 Yes. <& Beanies' 
 R. 118.) 
 
 In a comparatively late case, where the fund was limited in trust 
 for the separate use of the wife during the joint lives of herself 
 and her husband, and if she should survive him, then in. trust for 
 her and her assigns for her life, and after her decease, as to one 
 moiety of the fund, for her use, to be disposed of by her in such 
 manner as she should, by deed or will, notwithstanding her covert- 
 ure, direct, it was held that she could not dispose of the moiety 
 during the coverture. {Nixon v. Nixon, 2 Jones c& Lot. R. 416.) 
 
 Where an appointment by the wife is necessary, the trustees 
 acting on her behalf need not join as parties to it unless their con- 
 currence be expressly required by the power. {Grigley v. Cox, 1 
 Yes. Sen. R. 518. Essex v. Atkins, 14 Yes. R. 547. Pybus v. 
 Smith, 1 Yes. Jun. R. 169, 393.) 
 
 § 313. If the fund be given to the wife, to be " at her sole and 
 separate disposal," or to be disposed of by her " by will or deed," 
 notwithstanding coverture, 'the absolute fund will vest in her 
 
440 LAW OF COVERTURE. 
 
 which she may dispose of as a feme-sole under her general power 
 to do so, and without any of the ceremonies required by the 
 special power provided for her. {Robinson v. Dusgate, 2 Vern. R. 
 181. MasJcelyne v. MasheVyne, Ambler's R. 750. PhilUps v. 
 Chamlerlcdne, 2 Ves. R. 51, 58. Hixon v. Oliver, 13 ib. 108.) 
 
 There is a species of limitations, says Mr. Bright, very similar 
 to those in which the wife takes only an estate for life, with a 
 power of appointment, which, without minute attention, are likely 
 to mislead, since such limitations have been held to give the wife 
 an absolute interest, on the ground that it was the testator's inten- 
 tion that the wife should have the property absolutely, qualified 
 and, guarded only during the coverture in respect of her situation 
 as a married woman, and to prevent the fund, upon her death, 
 becoming the property of her husband as her administrator, in the 
 event of his being the survivor. (2 Rrigkfs ITusband and Wife, 
 243, referring to Elton v. Sheppard, 1 Bro. C. C. 532.) 
 
 In a late case where a testator desired his daughter's share to be 
 secured in the funds, and for his trustee to pay in the dividends, 
 and he wished that neither the principal nor the interest of the 
 funds should be subject to the control of any husband she might 
 marry, but that the same should be subject to her will only, prop- 
 erly executed, whether covert or sole, at her decease, it was held 
 that the daughter took an absolute interest. {Tawney v. Ward, 1 
 Beav. R. 563. And vide Baker v. Newton, 2 ib. 112. Mayer v. 
 Townshend, 3 ib. 443.) 
 
 It seems from the authorities that if the interest of a fund be 
 directed to be paid as & feme-covert should appoint,. by note or writ- 
 ing under her hand, and for want of such appointment, then into 
 her own hands for her separate use for life, she may dispose of it 
 either under her general power incident to her life estate, or by the 
 particular mode prescribed by the special authority. ( Vide Witts 
 v. Bawkins, 12 Yes. R. 501. Brown v. Like, 14 tb. 302. Bull- 
 pin V. Clarhe, 17 ib. 365. Stead v. Nelson, 2 Beav. R. 245.) 
 
 § 314. The American authorities are very decided that where 
 property is settled to the separate use of & feme-covert, she is to be 
 regarded as & feme-sole as to such separate estate, to the extent that 
 she may dispose of it without the consent or concurrence of her 
 trustee, unless she is specially restrained by the instruinent under 
 which slie acquires such separate estate, and although a particular 
 mode of disposition be specifically pointed out in the instrument or 
 
WJF^^S SEPARATE ESTATE. 441 
 
 deed of settlement, it will not preclude her adopting another mode 
 of disposition; unless there are negative words restraining her 
 power of disposition, except in the very mode so pointed out, and 
 she may give her separate property to her husband or to any other 
 person, if her disposition of it be free, and not the result of flattery 
 or force, or improper treatment. {FiremevUa Ins. Go. of Albany 
 V. Bay, 4 Barb. B. 407. OuiloL v. Peoh, 11 Paige's Ch. B. 475. 
 Vezonneau v. Pegram, 2 LeigKs B. 183. Jagues y. MeihodAd, 
 Episcopal Church, 17 Johns. B. 548. Whitall v. Ola/rh, 2 Edw. 
 Ch. B. 149.) And the doctrine has been carried so far that, by the 
 permission of her husband, the wife may become, a sole trader, and 
 be entitled to all her earnings. {Megrath v. Bobertson, 1 Dessau. 
 B. 445.) 
 
 It has been held that a woman whose husband is banished, and 
 his estate confiscated, is to be considered as a feme-sole in every 
 point of view. ( Wright v. Wright, 2 Dessau. B. 244.) And it 
 was even held in one case that if the husband flies the country and 
 remains absent, his wife is regarded as a feme-sole, and has the 
 right to convey property. {Troughton v. Sill, 2 Hayw. B. 406.) 
 The wife may mortgage her separate property for her husband's 
 debts. {Demurest v. Wyncoop, 3 Johns. Ch. B. 123.) And she 
 may execute, by will, a power in favor of a husband given to her 
 when sole, over her real estate. {BraMsh v. Gihbs, 3 Johns. Ch. 
 B. 523. Burr v. Burr, 7 HilVs B. 207, 213.) But in Connecti- 
 cut, it has been held that a will, executed by a feme-covert, devis- 
 ing her real estate to her husband, is void. {Fitch v. Brainard, 2 
 Day's B. 163.) 
 
 A married woman can do' no act which tends to the destruction 
 of her trust estate ; as, when she gave a note with her husband, 
 upon which a judgment was obtained and the trust estate sold, a 
 court of equity will enjoin the proceedings at law. ( Watson v. 
 Cheshire, 1 McCord's Ch. R. 241.) Words implying a separate 
 use in a wife, will be construed a separate estate. "When a father 
 makes a deed of gift to his married daughter of personal property, 
 the court will presume he intended to give her a separate estate. 
 {Johnson V. Thompson, 4 Dessau. B. 468.) 
 
 Equity will give effect to a deed conveying property to a fem£- 
 
 covert for her exclusive use even when no trustee is appointed, and 
 
 will consider the husband a trustee, although, of course, to create a 
 
 trust estate, the intent must be clear. {Hawkins v. Coalter, 2 Por- 
 
 56 
 
442 LAW OF COVERTXmE. 
 
 tor's R. 463.) An agreement entered into before marriage with 
 her husband by the wife, that she shall ■have the power to dispose 
 of her real and personal estate during coverture, will enable her to 
 do so. Although such agreement becomes extinguished at law, by 
 the subsequent marriage, yet equity supports it, and will compel 
 the husband to perform it. The wife has the right not only of 
 selling her separate estate but with the proceeds thereof of purchas- 
 ing other property, even from her husband, and to hold the 
 substituted property as her separate estate, free from the control or 
 debts of her husband. And she may purchase with her separate 
 estate either mortgages or judgments against her husband, and 
 hold such securities as a part of her separate estate, and enforce 
 the collection thereof by a sale of the mortgaged premises, or of 
 the lands subject to the lien of the judgments. And at the sale 
 she may purchase in her own name, the real estate of her husband, 
 and hold the same as part of her separate estate. {Sfy'ong v. 
 Slcmner, 4 Barb. B. 546.) 
 
 § 316. A feTTie-covert may, either in person or by her legally 
 authorized agent, bind her separate estate with the payment of 
 debts contracted for the benefit of the estate, or contracted upon 
 the credit of that estate, to the same extent that the estate of a 
 feTne-sole is chargeable with her debts, at common law. {North 
 Am. Coal Co. v. Dyett, 7 Paige's Ch. B. 15.) Although she is 
 incapable of charging herself at law, and equally incapable in 
 equity of charging herself personally with debts, yet the courts 
 have often held that separate debts contracted by her expressly on 
 her own account, shall in all cases be considered an appointment 
 or appropriation for the benefit of the* creditor, as to so much of 
 her separate estate as is sufficient to pay the debt, if she be not 
 disabled to charge it by the terms of the deed of settlement. 
 {Gardner v. Gardner, 22 Wend. B. 528. Murray v. Bartlett, 4 
 Sim: B. 82.) Chancery considers the debt as a valid charge pro 
 tanio, and will at least enforce its collection specifically, by fixing 
 it as a lien npon the separate estate. {Gardner v. Gardner, supra. 
 Owens V. Dickenson, 1 Craig cSi Phil. Ch. B. 48.) The wife may 
 contract such debt directly to her husband. In such case she will 
 be considered as acting as a feme-sole, or under a power of appoint- 
 ment in favor of her husband. {Gardner v. Gardner, supra. 
 Seatley v. Thomas, 15 Ves. B. 596.) She may deal with her 
 husband or with her trustee in regard to her separate estate. She 
 
WIF£!''S SEPARATE ESTATE, 443 
 
 may go surety for her husband, mortgage her estate to secure his 
 debt, or otherwise charge her estate on his account, {Janes v. Fisk, 
 9 Sme. (& Marsh. B. 144. Barnett v. Lichtenstein, 39 Barb. R. 194.) 
 
 Chancellor Kent was of the opinion that the power of disposition 
 of the separate estate of the wife by her, is not absolute, but only 
 svh modo, to the extent of the power given her by the instrument ; 
 and if the instrument points out a particular manner of disposi- 
 tion, that then no other can be adopted, although there is no 
 express prohibition of any other mode ; and there are other respect- 
 able authorities of the same purport. . {Jaques v. Methodist Epis- 
 copal Church, 3 Johns. Oh. R. 77. iMnoaster v. Dolam,, 1 RawWs 
 R. 231. Thomas v. Farwell, 2 Wharton's R. 11. Morgan v. 
 Elam, 4 Terg. R. 375. Rogers v. Smith, 4 Penn. R. 93.) But 
 the better opinion is that a feme-covert is absolutely a feme-sole 
 with respect to her separate estate, when she is not specially 
 restrained by the instrument under which she acts, to some par- 
 ticular mode of disposition ; and although a particular mode of 
 disposition is pointed out, it will not preclude her from adopting 
 any other mode of disposition, unless there are words restraining her 
 power of disposition to the very mode so pointed out. {Jacques 
 V. Methodist Episcopal Church, 17 Johns. R. 548. Yezonneau v. 
 Pegram, 2 JLeigKs R. 183. West v. West, 3 Randolph's R. 373. 
 Whitalcer v. Blai/r, Z J. J. Marsh. R. 239. Stn^ong v. Shirmer, 4 
 Barb. R. 546, 553. Maclvti v. Burroughs, 14 Ohio, St. R. 519. 
 Leaycraft Y. Sadden, 5 Green's Ch. R. 512.) 
 
 § 316. The rule with respect to the wife's power to charge her 
 separate estate, has been recently explained by the court of 
 appeals of the State of !New York, where it was held that a feme- 
 covert does not charge her separate estate by the execution of a 
 promissory note with her husband and as his surety, not for her 
 own benefit or the enhancement of her estate, and farther that 
 equity recognizes a married woman's debt and charges it upon her 
 separate estate, not on the ground that the contracting it is of itself 
 an appointment or charge, but because, when contracted on the 
 credit of the separate estate, or for its benefit, or that of the woman, 
 it is just that the estate should answer it. But that when the mar- 
 ried woman is a mere surety, then equity will not enforce against 
 her a promise which is void at law, and in such a case her separate 
 estate can only be charged by virtue of some instrument for that 
 express purpose. {Yale v. Dederer, 18 N. Y. R. 265.) 
 
444 LAW OF COVERTTmH. 
 
 And it was held by the same court in the same case, upon 
 another hearing, that in order to create a charge upon the separate 
 estate of a feme-covert, the intention to do so must be declared in 
 the very contract which is the foundation of the charge, or the con- 
 sideration must be obtained for the direct benefit of the estate 
 itself, and that the signing of a promissory note by a wife as the 
 mere surety of her husband, though she intended to charge her 
 separate estate, did not have the effect to charge it. {Yale v. 
 Dedcr&r, 22 N. Y. E. 450.) 
 
 § 317. "When the case of Yale v. Dederer, was last before the 
 court of appeals of New York, Selden, J., went into an elaborate 
 review of the cases upon the subject of the power of the wife to 
 charge her separate estate, and the ground upon which a charge 
 was established was distinctly stated. The judge substantially 
 remarks, that if the instrument by which the wife's separate estate 
 was created, conferred upon her either a general or qualified power 
 of disposition, no one ever questioned her right to execute this 
 power ; but that independently of any such special authority, the 
 right of the wife to dispose of or charge her separate property was 
 established soon after the introduction of such estates, upon the 
 ground that the right of disposal was a necessary incident of the 
 right of property; and that this universal jus disponendi was 
 the sole and only foundation of this right. This doctrine the 
 learned judge extracted from the leading and standard authorities 
 upon the subject, bt)th English and American. Assuming this 
 doctrine to be the foundation of the right of the wife in such cases, 
 it is plain that to avail herself of it, she must make some specific 
 disposition of the specific property itself. It is clearly impossible 
 to deduce from the_;MS disponendi, which accompanies all rights of 
 property, power to make any contracts, except such as related 
 directly to the property to which the right of disposition is attached. 
 
 It is frankly admitted that some of the earlier English author- 
 ities established the doctrine that the separate estate of a married 
 woman was liable for the payment of her bond, although the bond 
 in no way referred to such separate estate, and even when the bond 
 was given for money lent to the husband ; and upon the same 
 principle the separate estate of the wife would be liable for all of 
 her debts, however created, whether by bond, note, or by a mere 
 oral promise. While all of the English chancellors, from Lord 
 Loughborough to and including Lord Oottenham, have held to the 
 
wife's sbfabatm estate. 445 
 
 doctrine of this liability of tlie wife's separate estate, they have 
 greatly fluctuated in regard to the principle or theory upon which 
 the doctrine is sustained. The courts of New York have never, 
 as yet, adopted the doctrines of the English court of chancery on 
 the subject ; certainly not to their full extent ; and, in the judgment 
 of Judge Selden, it would be inexpedient to do so. The learned 
 judge remarks: "K we attempt to follow a class of decisions 
 which obviously rest upon no solid basis of principles, we can 
 never arrive at any settled conclusion. * * * No rule can ever 
 be stable the reasons for which are constantly changing. If we 
 desire precision and certainty in this branch of the law, we must 
 recur to the foundation of the power of a feme-covert to charge 
 her separate estate ; and this has heretofore arisen solely from her 
 incidental power to dispose of that estate. Starting from this 
 point, it is plain that no debt can be a charge which is not con- 
 nected by agreement, either express or implied, with the estate. 
 If contracted for -the direct benefit of the estate itself, it would, of 
 course, become a lien, upon a well founded presumption that the 
 parties so intended, and in analogy to the doctrine of equitable 
 mortgages for purchase-money. But no other kind of debt can, as 
 it seems to me, be thus charged without some affirmative act of the 
 wife evincing that intention ; and there is no reason why her acts 
 in this respect should not be tested by the same principles and 
 rules of evidence which are applied to similar questions in other 
 cases." ^ 
 
 The view of Judge Selden was concurred in, and adopted by a 
 majority of the court, and it was accordingly held " that the inten- 
 tion to charge the separate estate must be stated in the contract 
 itself, or the consideration must be one going to the direct benefit 
 of the estate." This is substantially the doctrine of the English 
 court of chancery, that the court has no power against a feme- 
 Goveri in personam, but that, if she has separate property, the court 
 has control over that separate property. But in all cases the 
 court ■ must proceed in rem against the property. {Fra/ncis v. 
 Wigsell, 1 Madd. R. 258.) 
 
 In the case of Francis v. Wigzell, Sir Thomas Plumer said : 
 " There is no case in which this court has made a personal decree 
 against a feme-covert. She may pledge her separate property, and 
 make it answerable for her engagements ; but, when her trustees are 
 not made parties to a bill, and no particular fund is sought to be 
 
446 LAW OF COVERTURE. 
 
 charged, but only a personal decree against her, -the bill cannot be 
 sustained." And in a case before .the late assistant vice-chancellor, 
 Sandford, of the New York court of chancery, it was expressly held 
 that the separate estate of a married woman is not always liable 
 for her debts ; that the debt must have been contracted either for 
 her separate estate, or relying on it for payment. {Curtis v. Erigel, 
 2 Sand. Ch. R. 287. Vide also Frasier v. Brownlow, 3 Ired. Eg. 
 R. 236. McKay v. Allen, 6 Yerg. R. 45.) 
 
 But independent of statutory provision, the rule laid down in 
 the case of Yale v. Dederer upon this subject, is the true doctrine, 
 and will undoubtedly be ultimately recognized by all the Ameri- 
 can courts. The supreme court of the State of New York adheres 
 so rigidly to the rule as to hold, that the subsequent promise of the 
 married woman to pay the debt out of her separate estate, will not 
 supply the defect of proof in the original contract. ( White v. 
 Story, Adnnim,ist/rator, 43 Barb. R. 124.) And again, that the 
 power of a married woman to charge her separate estate should not 
 be extended beyond the rule laid down by the court of appeals in 
 the case of Yale v. Dederer. {Bellows v. Cawley, 36 Ban%. R. 52.) 
 In a recent case in the supreme court of Wisconsin, Chief Justice 
 Dixon, in delivering the opinion of the court, reviewed the cases 
 bearing on the question, and approved of the ruling in Yale v. 
 Dederer, reported in 18 iT. Y. R. 265, but disapproved of the rul- 
 ing in the case as reported in 22 N. Y. R. 450. {Todd v. Lee, 15 
 Wis. R. 365.) 
 
 And in a late case in the supreme court of Indiana, without 
 ruling as to the extent of the power of a married woman over her 
 separate estate by way of charging it with debts contracted by 
 her, it was held, on the weight of authority in that state, that a 
 court of equity will give execution against her separate estate, not 
 only for debts created for the benefit of such estate, but for her 
 own benefit in her support. {Kani/rowitz v. Prather, 6 Law Reg. 
 [W. S.'] 602, 604. Vide also Major v. Symmes, 19 Ind. R. 117.) 
 But the form in which the wife may bind her separate estate may 
 depend upon the deed or instrument under which she holds it. 
 ( Vide Hidks v. Johnston, 24 Geo. R. 194. Caldwell v. Savage, 30 
 Ala. R. 283.) 
 
 § 318. Judge Story says that the doctrines maintained by courts 
 of equity, as to the nature and extent of the liability of the sepa- 
 rate estate of a married woman for her debts and other charges 
 
wife's separate estate. 447 
 
 created during coverture, are somewhat artificial in their texture, 
 and, therefore, require to be carefully distinguished from each 
 other, as they cannot all be resolved into the general proposition, 
 that she is, as to such property, to be deemed a. feme-sole. In 
 the first place, her separate property is net, in equity, liable for the 
 payment of her' general debts, or for her general personal engage- 
 ments. So far, courts of equity follow the analogies of the com- 
 mon law. If, therefore, a married woman should, during her 
 coverture, contract debts generally, without doing any act indicat- 
 ing an intention to charge her separate estate with the payment 
 of them, eom-ts of equity will not entertain any jurisdiction to 
 enforce payment thereof out of such estate during her life. 
 
 But, in the second place, he says, her. separate estate will, in 
 equity, be held liable for all her debts, charges, incumbrances, and 
 other engagements, which she does expressly, or by implication 
 charge thereon ; for, having the absolute power of disposing of the 
 whole, she may, a fortiori, dispose of a part thereof. Her agree- 
 ment, however, creating the charge, is not (it has been said), prop- 
 erly speaking, an obligatory contract, for, as a feme-covert, she is 
 incapable of contracting ; but is rather an appointment out of her 
 separate estate. The power of appointment is incident to the 
 power of enjoyment of her separate property ; and every security 
 thereon executed by her is to be deemed an appointment pro 
 tanto of the separate estate. (2 Story's Ec[. Jv/r. §§ 1398, 1399, 
 and mde authorities there cited.) 
 
 § 319. The courts have settled some general principles with 
 respect to the rights of a married woman regarding her 'separate 
 estate, which may be noted. These principles will be extracted 
 from the authorities without any particular reference to the date 
 of the decisions or the kindred nature of the rules which are 
 established. A contract for a valuable consideration, by which a 
 husband agrees to transfer certain property to his wife, although 
 void at law, will be enforced in a court of equity. {Jones v. Jones, 
 18 JUd. R. 468.) ■ ' 
 
 That a husband has had the use of his wife's separate property 
 for his own purposes, is a good consideration for his conveyance of 
 land for the use of his wife. {Hill v. West, 8 Ohio E. 222.) 
 Possession of money by a married woman is evidence, but not suf- 
 ficient evidence, of her ownership of it, as against her husband's 
 creditors. {Caldwell v. Oopelcmd, 37 Pemi. B. 430.) 
 
448 LAW OF COVERTURE. 
 
 Of course, the wife may sell lier separate estate to pay tlie debts 
 of her husband, unless she is restrained from doing so by the terms 
 of the instrument under which she holds such separate estate. 
 {Block V. Oalway^ 24 Penn. E. 18.) 
 
 A feme-covert can charge the whole, or a portion of her separate 
 estate, as a surety for her husband, the intention to charge such 
 separate estate being declared in the contract. And, although the 
 instrument by which she promises to pay the debt of her husband, 
 out of her separate estate declares that the consideration is for the 
 benefit of her separate estate, instead of stating the real consider- 
 ation, this will not vitiate the instrument or exempt the wife's 
 separate estate, provided she expressly charges her separate estate 
 in the instrument. {Barnett v. lAcMenstem, 39 Ba/rb. R. 194.) 
 
 A married woman may employ counsel to procure a divorce for 
 ner from her husband, and when she does so she is liable to him 
 for his compensation, and the same is a charge upon her separate 
 estate. {Oswalt v. Moore, 19 Ark. R. 257.) 
 
 By an antenuptial agreement a woman gave to her future husi 
 band a sum of money, he agreeing to pay to her interest thereon 
 during her life, the same as though she remained sole, and as if 
 the money was her sole and separate property, and at her death he 
 to be at liberty to dispose of both principal and interest without 
 any reference to the agreement ; the interest was regarded the hus- 
 band's to dispose of by will. {Mary v. Michael, 18 Md. B. 227.) 
 
 "When land was purchased for a married woman, as a homestead, 
 with her separate means, and she went into possession and made 
 valuable improvements thereon with her own separate funds, an 
 arrangement between husband and wife in respect to such purchase, 
 when there was no fraudulent intent, is lawful and will be sus- 
 tained. And though, in such a case, the conveyance of the 
 property was made, through mistake, to the husband instead of 
 the wife, her equity is superior to that of a creditor of the husband 
 whose debt matured and whose judgment was recovered after the 
 title to the property had passed from the husband and wife by 
 conveyance to iona fide creditors. {Damon v. Hall, 38 Barbour's 
 R. 136.) 
 
 "Whenever a husband has received or borrowed the property of 
 his wife, under circumstances which in a, court of equity Vo,uld be 
 regarded as creating a debt to her, froni-'him, and ^s entitling her 
 to be considered and treated as his creditor therefor, he will be 
 
' WTF£l''S SEPARATE ESTATE. 449 
 
 allowed to pay such debt from his property, in the same mamier 
 and upon the same principles, on which he would be allowed to 
 pay any other debt to any other creditor ; and a payment to her or 
 a transfer of property to her, in consideration of such debt, will not 
 be regarded as a gift, or a voluntary conveyance of property in. 
 fraud of his creditors, This is independent of any statutory 
 provision. {McCartney, Meceiver, v. Welch, 44 Barb. R. 271.) 
 
 So also when a husband is indebted to his wife in a certain sum, 
 for money arising from the sale of her separate real estate, w^hich 
 6um she had' lent to him, he agreeing to "keep it for her, and treat 
 it as her separate property, and repay it to her with interest, equity , 
 will hold the husband to be the trustee of his wife for that amount, 
 and allow time to pay her the same, upon his becoming insolvent, 
 in the same manner that he might pay any other creditor. But to 
 authorize him to prefer his wife as a creditor, it is necessary that 
 the money in his hands' should be held and regarded as between 
 them, at and from its receipt by him, as a loan frona her ; that he 
 be deemed to be in fact a debtor to her for the same ; and that 
 they should have constantly and intentionally treated the same in 
 his hands as her separate property. ( Wood/worth v. Sweet, 44 Bcmb. 
 R. 268. Banfffrth v. Woods, 11 Paige's Ch. R. 9.) 
 
 § 320. A feme-covert maj, as respects her separate estate, become 
 surety for her husband, and she is entitled as against him and his 
 creditor, to all the rights as a surety. {Neimcewicz v. Gakn, 3 
 Paige's Oh. R. 614. 11 Wend. R. 312. Vartie v. Underwood, 
 18 Pa/rh. R. 561.) So -if the wife mortgages her property as 
 security for the husband's debt, she is entitled in equity to have his 
 interest in the land, as tenant by the curtesy initiate, first sold and 
 applied to its extinguishment. {Tb.) And when the wife pledges 
 her separate estate, or her reversionary interest in her real property, 
 for the debt of her husband, she is entitled to the ordinary rights 
 and- privileges of a surety. {Sawl&y v. Bradford, 9 PaAge^s C\. 
 R. 200.) 
 
 Possession of the wife's separate property by the husband, if not 
 inconsistent with the trust, is not fraudulent as against his cred- 
 itors. {Merritt v. Lyon, 3 Barb. B. 110. Vide also Bcmcow v. 
 Kuhn, 36 Penn. R. 383.) 
 
 When the wife gives a mortgage of her laud as collateral to her 
 husband's debt, the husband cannot pay it, and take a transfer va. 
 trust for himself ; and a bona fide purchaser for value from the 
 67 . 
 
450 LAW OF COVMBTUBE. 
 
 trustee has no equity as against the wife. {Fitch v. Oothedl, 2 
 Sand. Oh. E. 29. And vide Loomer v. Wheehoright, 5 it. 135.) 
 
 "Where real estate of a wife, which is held subject to the marital 
 rights of her husband, is sold, the proceeds of the sale, being 
 money or personal property, belong to the husband ; and, if the 
 same is appropriated to the payment of an incumbrance upon 
 the wife's separate estate, without the husband's assent, he has an 
 equitable claim against the wife's separate estate for the money. 
 {Mm-tm V. Martim,, 1 Gomst. R. 473.) 
 
 § 321. The creditor of the husband cannot subject the proceeds 
 of the wife's separate estate to their claims against the husband. 
 {Gross y: Ransom, 15 Gal. R. 322.) 
 
 Equity will not give any relief, out of the wife's separate estate, 
 to the creditor of the husband, when the debt is not on account of 
 the wife, but is the debt of the husband. {Hatz's appeal, 40 P&nn. 
 R. 209.) And an execution issued against the wife's separate 
 estate in favor of the creditor of the husband will be restrained 
 by injunction. {Hunter'' s appeal, 40 Penn. R. 194.) 
 
 But a feme-covert has a right to raake a gift to her husband of 
 the use and income of her separate estate, and, consequently, his 
 creditors may attach such income or other property for which it 
 has been exchanged ; and acquiesence on the part of the wife in the 
 husband's receipt of the profits of her estate, will be equivalent to 
 a gift. {Gage v. Bauohy, 28 Barl. R. 622.) 
 
 A married woman, whose separate property has been sold under 
 an execution against her husband, may come into equity for its 
 recovery, when no trustee was created by the deed which created 
 her separate estate. {Gole v. Yarner, 31 Ala. R. 244.) The sepa- 
 rate estate of the wife can be barred only by her, or by some one 
 acting for her. {Whitesoa/rver v. Bonney, 9 Iowa R. 480.) A 
 mortgage given to a husband and wife for the wife's separate 
 money, cannot be discharged by the husband alone. {McKinney 
 V. Hamilton, bl.Renn. R. 63.) 
 
 h. feme-covert may transmit her separate property to her husband 
 through the medium of a trustee. {Lewis v. Bald/win, 11 Ohm R. 
 352. AlloU V. Hwrd, 6 Blaclf. R. 510.) 
 
 If a wife thinks fit or proper to keep up an establishment against 
 the wishes of the husband, what is applied for the establishment 
 will be a consideration for payments out of her estate on that 
 accoimt. That the proceeds of the settled funds having been 
 
WWE^S SEPARATE ESTATE. 451 
 
 placed to the wife's account at her banlcei''s, and applied princi- 
 pally to the current expenses of the establishment of the husband 
 and herself, by the order and direction of the wife, the husband 
 being the agent in their application as to moneys so applied, it 
 was held there was a defective appointment which ought to be 
 aided by the court. If the husband have not in any degree 
 influenced the acts or conduct of the wife, there is no reason why 
 her assets, including the trust funds which have become her assets, 
 by the exercise of her power, should not be bound to the same 
 extent as the assets of any other person, not under the disability 
 of coverture, would be bound in the same circumstances. 
 
 The rights of married women may be barred, and their estates 
 affected by active participation in breaches of trust, and if — their 
 powers having been exercised by will— the trust funds become 
 their assets, they must be liable for those breaches of trust, it 
 would seem. But the fact that a married woman having permitted 
 her husband to receive the trust funds, does not preclude a right 
 to release by her or her appointee, for that would be to defeat the 
 purpose for which the trust was created — the protection of the 
 wife against the husband. {Hughes v. Wells, 9 Hare's H. 749. 
 S. C. 41 Eng. Gh. R. 748.) 
 
 § 322. In transactions between husband and wife relative to the 
 separate estate of the wife, she, prima facie, will be viewed in 
 the light of a,, feme-sole, and as such, as we have seen, she is com- 
 petent to dispose of it to him, or for his use, subject to proof of 
 fraud or undue influence on his part. {Gruger v. Cruger, 5 Ba/rh. 
 JR. 225.) And whenever she gives it to her husband, or permits 
 him to receive it, she will be precluded after his death of charging 
 his estate with what he so received. {Pa/mlet v. Delamdl, 2 Ves. 
 Sen. R. 663. Smith v., Gamelford, 2 Ves. Jun. R. 716. Pauoell v. 
 Hankey, 2 P. Wms. R. 82. Squi/res v. Bean, 4 Bro. G. G. 326. 
 And vide Garter v. Anderson, 3 Sim. R. 370. Beresford v. 
 Armagh, 13 il, 643. Bartlett v. Oiffard, 3 Russ. ^.149.) 
 
 Upon the same principle, when the trustees, under the marriage 
 settlement, had lent the wife's money to the husband with her 
 consent, it was held that the husband was liable to account for 
 only the principal. {Ex parte Green, 2 Bea. dk Chit. R. 113.) 
 But if no such consent be given, nor can be presumed, then the 
 wife will be entitled to reimbursement out of her husband's estate 
 for the whole of what he received of her separate property. 
 
452 LAW OF 'COVBRTUEia. , 
 
 {Parker v. Brooke, 9 Yes. R. 583. Vide WettleuMp v. JSfettlesMp, 
 10 Sim. R. 236. Attorney- General v. Paruther, 3 Pro. C. C. 441.) 
 
 In some cases when the wife was entitled to the interest of the 
 fund for life to her separate use, with a prescribed power to 
 dispose of it, and upon her death the capital was given to her 
 husband, on their filing a bill in chancery praying that the prin- 
 cipal might be immediately paid to her husband, and the wife 
 consenting to part with her life estate, the court has ordered tlie 
 fund to be paid or transferred to the husband. {Chesslyn v. 
 Smith, 8 Ves. B. 183. Allen v. Pa^orth, 1 Ves. Sen. R. 163.) 
 But in later cases such a transfer has been refused, on the ground 
 that the suit must be considered that of the husband, and the 
 wife, for all the purposes of the suit, must be taken to be entirely 
 under the influence of the husband. {Svrrnns t. Horwood, 1 
 Keene^s R. 1.) 
 
 It may, therefore, be considered as settled, that whether the 
 wife's interest is such as she may dispose of independently of any 
 special power, or she has merely a power to dispose of it, the court 
 will not act upon a bill filed by her and her husband. (2 BrigMs 
 Husband and Wife, 265 ^ 
 
 The changes made b;;. statute with respect to the wife's separate 
 property, wiU be noticed hereafter. ' 
 
 CHAPTEE XXIV. 
 
 AlTTENtTPTIAL OONTBAOTS AND ETTLES EESPBOTING .'HEM POST-NTTP- 
 
 TIAL AGEEEMBNTS AND SETTLEMENTS SEPAEATE USES EOE PEME8- 
 
 OOVEET. 
 
 § 323. Theee are certain rules with respect to the contract of 
 husband and wife entered into before marriage, which were not 
 noticed when treating of the wife's separate estate. These will 
 now be referred to. 
 
 It appears to be a well settled principle of law, that all rights 
 
 dependent on the nuptial contract are governed by the lex loci con- 
 
 . tractus, and^ when the parties marry with reference to the laws 
 
 of a particular place or country as their future domicile, the 
 
 law of that place or country is to. govern in relation to their 
 
ANT-ENUPTTAL CONTRACTS. 453 
 
 right of property under the marriage. For example, when a con- 
 tract of marriage executed in Paris between French citizens 
 contained a clause by which the parties mutually give to each other 
 and the survivor, all the estate and property acquired or purchased, 
 or belonging to either at the time of his or her death, to be enjoyed 
 by the survivor exclusively ; and the husband afterward abandoned 
 his wife and came to reside in New Tork, where he lived many 
 years, and having acquired a large personal estate, died intestate, 
 "without lawful issue, leaving his wife living in France. The late 
 court of chancery of the State of New Tork held that, under the 
 law of France, by the antenuptial contract, the wife, as survivor, 
 took all the estate to the exclusion of the husband's relatives, and 
 the estate was decreed to the wife accordingly. (Z>ecwaAe v. 
 Savetder, 3 Jokns. Gh. R. 190.) 
 
 So, when an antenuptial contract, made by two residents of the 
 State of New Tork, with reference to removing to France, their 
 native country, declared that they intended to marry under the 
 law or legal rule of community ; in giving effect to it here it was 
 construed in reference to that rule as it existed in France when the 
 marriage took place, though the parties had abandoned their inten- 
 tion and remained in the State of New Tork. {Le Breton v. Miles, 
 8 PwigSs Oh. B. 261.) So, a marriage contract made by Prussians, 
 in Prussia, was recognized by the surrogate of the city of New 
 Tork, in construing a will made by the husband in this country. 
 {Sohultz V. Darrnebma/n, 3 Brad. R. 379.) 
 
 So also a marriage contract made in France between citizens of 
 that country, touching the succession to the personalty of the 
 parties, was recognized and enforced here. {Crosby v. Badger, 3 
 ^dw. Gh. R. 538.) It was, however, held by the late assistant 
 vice-chancellor, Sandford, of the city of New Tork, that a marriage 
 contract executed in France, whatever right it may confer there 
 under the French laws, cannot operate as a mortgage of the hus- 
 band's real estate situate in the State of New Tork, nor give the 
 wife priority over other creditors of the husband in the administra- 
 tion of his estate. {Ord/roneaux v. Bey, 2 Samd. Gh. M. 33.) 
 
 In France, the rights of husband and wife with respect to their 
 ■property may be defined and regulated by a contract between the 
 parties before marriage ; and there are two principles, either of 
 which may be adopted in such a contract : First, a community of 
 goods, which merges all the personal property of the wife, present 
 
4-54: LAW OF COVERTURE. 
 
 and future, and all the income of her real estate, into an eventiial 
 community of goods, of which the husband has~the entire disposal, 
 "without liability to account to any one for the same. Second, the 
 dotal system, which has a different effect, and aims at keeping 
 separate the respective rights of thte parties to such property as they 
 owned before marriage, and especially to secure to the wife the 
 exclusive control and enjoyment of her estate, principal and interest, 
 unless surrendered to the husband by express stipulation. The 
 parties may declare in general terms that they intend to marry 
 tinder the principle of community of goods, or under the dotal 
 system, which must be done in a specific clause in the contract. 
 "When this is done the intentions of the parties will be enforced in 
 this country. ( Ycdl v. Vail, 7 Barb. E. 226.) 
 
 The doctrine that the leai loci Gontraotus shall control in cases of 
 antenuptial contract is well settled, and will be recognized, unless 
 the contract contains provisions contrary to the policy of the laws 
 of the State wherein it is sought to be enforced. {Scheforlvng v. 
 Huffman, 4 Ohio St. E. 241.') 
 
 § 324. Marriage is a good consideration to sustain a contract 
 made in contemplation of it, or as Chancellor Kent says : " Marriage 
 has always been held to be the highest consideration in law." 
 {Strong v. Arden, 1 John^s Gh. E. 271.) And a contract made 
 upon such consideration will be enforced in equity npon the 
 application of any person within the scope of the consideratioL of 
 the marriage. (2 Story's Eq. Jut. § 986.) 
 
 The mutual stipulations and grants of the parties to an ante- 
 nuptial contract, in favor of each other, are alone sufficient to give 
 validity to the provisions of the instrument. 
 
 When it was stipulated in an antenuptial contract executed in, 
 France, that, in case of the death of the wife without bearing 
 children, her husband surviving, the real estate of which she should 
 die possessed in the United States, should be immediately sold, 
 and the proceeds remitted to her husband ; this provision operated 
 as a gramt to the husband, contingent upon the death of the wife, 
 to which effect was to be given upon the principle of equitable 
 conversion. And if the antenuptial agreement fails to appoint a 
 trustee to carry that object into effect, and the heirs at law are 
 infants, a court of equity has power to appoint a trustee f/- sell 
 such real estate and remit the powers to the husband {De 
 Barant v. Gott, 6 Barb. E. 492.) 
 
ANTENUPTIAL CONTRACTS. 465 
 
 When tlie IiusLand, after covenanting in the deed of settlement, 
 to allow his wife %o enjoy her separate property to her own use 
 during the coverture, and that she might convey the same, and 
 adding that he thereby released all his marital rights in and over 
 the same, it was held that this release was to be construed in 
 connection with the words immediately preceding and operated only 
 as to his rights during coverture, and did not affect his rights as 
 survivor of his wife. {Stewart v. Stewart, 1 Johns. Gh. B. 229.) , 
 
 The general personal estate of a female infant is barred by a settle- 
 ment made upon her marriage, because such personal estate becomes 
 by the marriage the absolute property of the husband, and the 
 settlement is in effect his settlement and not hers. {Sirong v. 
 Wilkin, 1 Ba/rb. Ch. E. 8.) 
 
 § 325. The intervention of a trustee in an antenuptial contract 
 is not necessary to give the wife control of her separate estate. 
 (Strong v. Skinmsr, 4 Barb. R. 646. Ahrcmis v. Whitmore, 4 
 Dessa/u. R. 255.) And when by an antenuptial agreement the 
 chattels of the woman are secured to her without the intervention 
 of a trustee, equity will treat the husband as trustee, and hold him 
 to account as such ; but at law the title is in the husband, so that 
 he alone can sue for the conversion of the property. {Blancha/rd 
 V. Blood, 2 Ba/rl. R. 362.) 
 
 It is the well settled doctrine of a court of equity, that if real 
 or personal estate be settled on a married woman without the inteii- 
 vention of trustees, her interest will, notwithstanding, be protected 
 by the conversion of the husband into a trustee ; and this is the 
 rule, though the settlement be made by an antenuptial agreement. 
 {Barkins v. Oiles, 1 Rice^s Eg. R. 315.) And a marriage contract 
 entered into before marriage is good without any parties thereto, 
 except the intended husband and wife. {Roane v. Hern, 1 Wash. 
 R. 47.) In one case in the State of South Carolina, where there 
 were no trustees named in a marriage settlement, the court named 
 trustees, although there was no necessity for such a proceeding 
 provided- there was no objection to the husband as a trustee. 
 {Barrett v. Barrett, 4 DessoAi. R. 448.) 
 
 When a female, in .contemplation of marriage, conveys her real 
 estate to a trustee, with an unlimited power to sell with her con- 
 sent, or"to pay such sums for her support and maintenance as she 
 may require, upon her own receipt, free from the control of any 
 husband she may have, and the residue, if any, for the benefit of 
 
456 LAW OF COVERTURH. 
 
 her children, the absolute power of disposal resides in her, and con- 
 fers upon her an equitable fee. and renders the intended limitation 
 over for the children void. ( Wright v. Miller, 4 B(wb. R. 600.) 
 
 If an antenuptial agreement, by which the husband agreed by 
 will or otherwise to assure to the wife an annuity for life, and she 
 to receive the same in satisfaction of all claim of his estate, be not 
 performed by the husband, as when he leaves the annuity during 
 her widowhood, instead of for life, the wife is not bound by 
 the contract, and may claim her portion of the estate. {Bliss v. 
 Seldm, 7 Barb. R. 152. S. C. 8 iT. Y. R. 31.) 
 
 When an antenuptial agreement gives the woman after marriage 
 power " to enjoy, control, and dispose of her separate property in 
 the same manner, and with the like effect as though she had con- 
 tinued a feme-sole" she has the power during coverture to dispose 
 of the property by will. {Amerioan Home Missionary Society v. 
 Wadhams, 10 Ba/rh. R. 597.) 
 
 A reconveyance to a cestui que trust will be decreed after the 
 termination of her coverture, when the plain intention of the settle- 
 ment was to protect her against her husband. {Fox v. Scott, 3 
 PUla. R. 326.) 
 
 § 326. In order to protect property against the claims of cred- 
 itors by an agreement made in consideration of marriage, it is 
 indispensable that the contract should be executed before marriage. 
 {Jones V. Henry, 3 Zitt. R. 427.) 
 
 In the State of Yirginia, marriage settlements made in pursu- 
 ance of antenuptial contracts, must be recorded within ei2;ht 
 months after they are made, or they will be void as against prior 
 creditors of the husband. {Anderson v. Anderson, 2 CaWs R. 
 198.) And in the same state a contract in consideration of mai'- 
 riage, will be enforced upon acknowledgment before witnesses, 
 although they were not present when it was made. {Foster v. Fos- 
 ter, 4 CaWs R. 231.) 
 
 Unless a marriage settlement is required by statute to be re- 
 corded, it is valid without it. In South Carolina, as in Virginia, 
 they have a statute requiring such settlements to be recorded, and 
 hence in that state a marriage settlement not recorded within the 
 time prescribed by statute,. is void as to creditors, though the prop- 
 erty was the wife's, and though it was recorded before the debt 
 was contracted. The mere recording after the legal time is not 
 sufficient notice to the creditor to set up the settlement against his 
 
ANTENUPTIAL CONTRACTS. idl 
 
 demand. {Taylor v. Merioot, 4 Dessau. B. 2^7. Wilson v. Wilso% 
 1 ii. 401. 
 
 When a deed of marriage settlement is made before marriage, 
 between an infant female and ber guardian, the intended husband, 
 and trustees, whereby her real estate is settled on her and her child- 
 ren, and the husband covenants that he will, whenever required, 
 execute any and every further conveyance proper for more effectu- 
 ally settling and assuring the subject to the uses declared by deed ; 
 whether the infant is bound by the deed or not, the husband is 
 bound by his covenant, and equity will not aid him to avoid it. 
 {Zee V. StucM-t, 2 LeigKs R. 76.) 
 
 Property conveyed by deed of marriage settlement, in tiiust, 
 that the husband and wife shall be permitted, during their joint 
 lives, to enjOy the profits, may be taken in execution to satisfy a 
 debt incurred, after the marriage, for supplies furnished for the 
 proper support of the husband and wife. {Scott v. JLorine, 6 
 Munf. R. 117.) 
 
 When, by a deed of settlement, in anticipation of marriage, the 
 property of the wife was conveyed to a trustee, iii trust for her use 
 until tlie marriage, and after the marriage for her separate use, not- 
 withstanding such coverture; and, after her death, for the use of 
 such person or persons as she should, by will, notwithstanding siich 
 coverture, appoint ; and, in default of such appointment, to' the 
 use of her heirs, and to the exclusion of the intended husband, 
 either as tenant by the curtesy, or otherwise, so that the wife 
 should not, at any time thereafter, either by herself or in conjunc- 
 tion with others, have the pother of exonerating, releasing or 
 discharging the property from the operation of her settlement, or 
 of receiving any portion thereof, except the annual income thereof; 
 by the operation of the rule in Shelley's case, the husband having 
 died before the wife, the limitation of the equitable estate to th& 
 wife for life, with an unlimited power of appointing the inherit- 
 ance by will, united itself with the equitable estate in remainder to 
 her heirs generally, so as to create an equitable estate, in fee, in the 
 whole property in the event that happened ; and, having united 
 this equitable fee with the legal estate, by a conveyance from the 
 trustee, she was able to give a perfect title to the property. 
 {McWhorter y. Agnew, 6 PaAgeh Oh. B. 111.) 
 
 § 327. The rule in SheUey's case, so often referred to, was stated, 
 on the authority .of the Year Books, to be " that when the ancestor, 
 58 
 
458 LAW OF COVERTmE. 
 
 t'y ^^y gift ^^ conveyance, takes an estate of freehold, and, in tlie 
 ' same gift or conveyance, an estate is limited, either mediately or 
 immediately, to his heirs, in fee or in tail, the heirs are words of 
 limitation of the estate, and not words of purchase." {Shelley^s 
 case, 1 Cokeys H. 9.) In plain terms, the ancestor takes the whole 
 estate, and the heirs, if they take at all, can take only by descent, 
 contrary, it is admitted, to the natural meaning of the words and 
 the clear intent of the grantor. 
 
 The deiinition of this rule, as given by. Mr. Preston, and 
 abridged by Chancellor Kent, is, " "When a person takes an estate of 
 freehold, legally or equitably, under a deed, will, or other writing, 
 and in the same instrument there is a limitation, by way of 
 remainder, either with or without the interposition of another 
 estate, of an interest of the same legal or equitable quality, to his 
 heirs, or heirs of his body, as a class of persons to take in succes- 
 sion, irom generation to generation, the. limitation to the heirs 
 entitles the ancestor to the whole estate." (1 Preston on Estates, 
 263-419. 4 Kenfs Com. 215.) 
 
 The rule in Shelley's case occupies a veiy prominent place in the 
 history of the law of real property, and it is quite interesting to 
 ■understand it. The rule has been iirmly established as an axiom 
 in the English law of real property for five hundred years ; and as 
 to legal estates, it has had a prescriptive and uncontrollable 
 authority, although the courts of equity have not always iniplicitly 
 observed it in respect to limitations which do not include or carry 
 the legal estate. (4 Kenfs Com. 218.) For instance, if articles be 
 entered into before marriage wi1fh a view to a future settlement, 
 limiting real estates of the husband to the parents for their lives, 
 and during the life of the surviyor, remainder to the heirs of the 
 body of the husband, the limitation to such heirs will be considered 
 words of purchase, and_ a settlement directed accordingly ; that is 
 to say, after the life estates to the parents, to their son or sons in 
 tail ; on the ground that, if an estate tail were given by the settle- 
 ment to the husband as directed by the articles, he alone might, 
 immediately after the marriage, bar the issue and defeat a principal 
 part of the settlement, the intended pi'ovision for the children of 
 the marriage. In a word, the court will carry out the declared 
 intention of the partie's to the instrument in all cases of marriage 
 settlements where it is possible consistently to do so. {Trevor v. 
 Trevor, 1 Ga. Abr. 387. Btreatfield v. Streatfield, Forresfs Cases, 
 
ANTENUPTIAL CONTRACTS. 459 
 
 176. Honour v. Honour, 2 Vern. E. 658. Bale v. Oolemcm, 1 
 P. Ftos. ^. 142. Highway v. Bermer, 1 ^to. ^. C. 584.) 
 
 The like rule prevails when the estate belongs to the wife, and 
 the articles limit to her an estate in tail. 
 
 § 328. But the rule in Shelley's case is now abolished by the 
 statutes of several of the states, and, of course, is no longer applied 
 to marriage settlements or other conveyances of real estate. 
 Chancellor Kent said of it many years ago : " The judicial scholar, 
 on whom his great master. Coke, has bestowed some portion of the 
 gladsome light of jurisprudence, will scarcely be able to withhold 
 an involuntary sigh as he casts a retrospective glance over the 
 piles of learning devoted to destruction by an edict as sweeping 
 and unrelenting as the torch of Omar. He must bid adieu for- 
 ever to the renowned discussions in Shelley^s case, which was so 
 vehement and so protracted as to rouse the scepter of the haughty 
 Elizabeth. He may equally take leave of the multiplied specimens 
 of profound logic, skillful criticism and refined distinctions which 
 pervade the various cases in law and equity, from those of Shelley 
 and Archer down to the direct collision between the courts of law 
 and equity in the time of Lord Hardwicke. He will have no 
 more concern with the powerful and animated discussions in Perrim, 
 V. Blake, which awakened all that was noble and illustrious in 
 talent and endowment through every precinct of Westminster 
 Hall. He will have occasion no longer, in pursuit of the learning 
 of that case, to tread the clear and light paths illuminated by Sir 
 WilUiam, Blackstone's illustrations^ or to study and admire the 
 spirited and ingenious dissertation of Hargrave, the comprehensive 
 and profound disquisition of Fearne, the acute and analytical essay 
 of Preston, the neat and orderly abridgement of Cruise, and the . 
 severe and piercing criticisms of Reeve. What I have, therefore, 
 written on this subject may be considered, so far as my native 
 state is concerned, as an humble monument to the memory of 
 departed learning." (4 KenCs Com. 233, note a.) . 
 
 § 329. Marriage articles are considered as the heads or minutes, 
 only, of an agreement entered into between the parties upon con 
 sideration of the marriage, and being in their nature executory, 
 they ought to be construed and molded in equity, according to 
 the intention of the parties at the time of concluding them. {Taib 
 V. Archer, 3 Hen. & Mimf. R. 319. May v. May, 1 Florida R. 
 207 Adams v. Dichson, 23 Geo. R. 406. Tide also Tyson v. 
 
460 LAW OF COVERTUBE. 
 
 Tyson, 2 Hawkei R. 472.) The intention of the parties to mar- 
 riage articles is to be collected from the nature of the agreement, 
 the language and context thereof, the usage in similar eases, and 
 the legal rights of the parties, as they existed before, and would^ 
 have existed after the marriage, if no such articles had been made ; 
 but, parol or other evidence, dehors the articles to explain or vary 
 their meaning, ought not to be resorted to, unless there be some 
 latent ambiguity which is otherwise impossible to be solved or 
 e^lained ; or umless something agreed on by the parties at the 
 time has been omitted through fraud or accident. 
 
 An indorsement made on articles by the husband and wife sub- 
 sequent to the marriage can neither be regarded as a part of the 
 original contract nor as explanatory thereof. 
 
 Majrriage articles are not to be rescinded after the marriage, even 
 by consent of the husband and wife, or by any conveyance which 
 they or either of them can make ; but they will be enforced in equity 
 at the suit of the issue of the parties, whether in esse, or in venl/re 
 sa mere, or of any other person for whose benefit the articles were 
 intended.. {Tabb v. Archer, 3 Hen. (& Mtmf. R. 319.) In the last 
 case cited, it was also held that infants may contract by marriage 
 articles or settlements, and that such contracts will bind both parties 
 when of full age. ( Vide also Lester v. Frasier, 2 MUVs Ch. B. 537.) 
 But it was held by the assistant vice-chancellor in the State of New 
 York, that the settlement by an infant female of her real estate, 
 executed on the eve of her marriage, was voidable on her coming 
 of age. Whether she could disaffirm the instrument during cover-- 
 ture, was regarded as a vexed question, though the preponderance 
 of opinion was adverse to the power. But it was held that she 
 could affirm it during coverture, after she come of full age, by a 
 conveyance acknowledged by her pursuant to the statute. {Tern- 
 pie V. Ha/mley, 1 Sand. Ch. S. 153.) And in a late case in Penn- 
 sylvania, it was held, that the weight of authority inclines in favor 
 of the right of a feme-covert to disaffirm her marriage settlement 
 entered into while an infant, so far as the arrangement affects her 
 real estate. ( Whichcote v. lyle, 28 Penn. B. 73.) And in the 
 same case it was held that the husband is bound by articles of 
 marriage settlement, although the wife was a minor when they were 
 entered into. ( Vide also Wilson v. McOuUough, 19 Penn. R. 87.) 
 
 Contracts in consideration of marriage are greatly favored in 
 equity; and between the parties themselves, and Othei's falling 
 
ANTENUPTIAL CONTRACTS. 461 
 
 ■within the express objects of the contract, they will be enforced 
 accoi'ding to the obvious intent, however informally or irnegularly 
 they may have been executed, and that too although they may have 
 been rendered inoperative at law by the marriage of the parties. 
 {Allen V. Eumph, 2 EilVs Ch. JR. 3.) 
 
 § 330. A parol agreement made by a father in consideration of 
 the marriage of his illegitimate daughter, to settle. all his estatt 
 upon her husband, herself, and the issue of her marriage is binding, 
 and although it does not attach specifically upon any portion of the 
 father's property, so as to defeat a purchaser with notice, yet it will 
 be enforced against volunteers claiming under, him. For though the 
 relation between the father and the illegitimate daughter is not a 
 sufficient consideration to raise a use, yet the intervention of the 
 husband extends to the wife and the issue. And the husband sub- 
 mitting, the estate was limited to him for life, with a power to 
 make advancements upon the marriage or full age of the children, 
 Avith remainder to .the issue, as tenants in common, and cross 
 remainders between them, upon their death imder age and unmar- 
 ried. {Wall V. Scales, 1 Dev. Sq. R. 472.) 
 
 In the State of North Carolina, antenuptial- settlements are 
 required to be registered, and when registered, an antenuptial set 
 tlement in articles, is, in equity, valid as a lien upon the property 
 agreed to be settled against the general creditors of the debtor, 
 and of course is valid against one claiming in the place of a creditor. 
 {Freemcm v. Hill, 1 Dev. & Batt. R. 389.) 
 
 "When a h^^sband by an antenuptial contract relinquishes and 
 releases all claims by virtue of his marital rights, to the separate 
 estate of his wife, the next of kin of the wife will be entitled to it. 
 {Henrico v. Lcdrd, 10 Yerg. S. 222.) 
 
 A settlement by a widow about to marry, of her interest in her 
 former husband's estate, with the knowledge of her intended 
 husband is valid. (Latimer v. Elgin, 4 Desscm. H. 26.) 
 
 Marriage, as has been before suggested, is not only a hona fde 
 and valuable consideration, but the very highest consideration in 
 law. A court of equity will, therefore, always support marriage 
 settlements,if no particular evidence of fraud is made out, showing 
 an intention to deceive or defraud creditors. For example, a man 
 made'a settlement before marriage, including his wife's fortune, and 
 all his private property, the settlement was dictated by the uncle 
 and guardian of the intended wife, who would not otherwise con- 
 
462 LAW OF COVERTURE. 
 
 Bent to the marriage, and was gnorant of the insolvency of the 
 intended husband, at the time. After the marriage, the creditors 
 of the copartnership to which the husband belonged, tiled a bill to 
 set aside the settlement as respected his property as being fraudulent 
 and void; but the court refused to set it aside. (Tvmmx) v. Treze- 
 mnt, 2 DessoM. B. 269.) • 
 
 Though there be no express evidence of the delivery of an ante- 
 nuptial agreement, and though it be found in the husband's posses- 
 sion after his death, its delivery will be presumed, if its due execu- 
 tion be proved, and it appears that it was recognized by the 
 husband. {Smith v. Moore, 3 OreerCs Oh. R. 485.) 
 , Courts will give effect to stipulations in marriage settlements and 
 in other contracts of a similar nature, in favor of third persons 
 for whose special use and benefit such stipulations were intended, 
 although such third persons were not parties to the contract. 
 {King v. Whitley, 10 Podge's Ch. H. 465. Tide Bleeker v. Bing- 
 ham, 3 il. 246. Baird v. Bland, 3 Munf. B. 570. Goutts v. 
 Greenhow, 2 ih. 363.) 
 
 An antenuptial agreement to keep separate purses and manage 
 the property of each for individual account, does not embrace a 
 legacy afterward bequeathed to the wife. {Boughn v. Miller, 
 Wright's Ohio B. 328.) 
 
 § 331. "When a marriage settlement does not conform to the 
 intention of the parties, either through, mistake or the fraud of one 
 of the parties, it will be corrected by a icourt of equity. When, 
 however, the correction interferes with the rights of the husband 
 and wife, or issue of the marriage, it will be made with more 
 caution then when it affects collaterals only, who are strangers to 
 the consideration of the deed. 
 
 • A marriage settlement which does not confoi-m to the intention 
 of the wife, will not be annulled, so as to leave the property sub- 
 ject to the legal rights of the husband ; but it will be reformed by 
 inserting the omitted provision upon the same principles on which 
 articles are executed ; and upon the articles being reformed, col- 
 laterals who claim under a settlement procured by the fraud of 
 the father are excluded fropi any benefit under it. {Scott v. Dun- 
 can, 4 Dev. Eg. R. 403.) 
 
 A gross error in a marriage settlement, which was caused by an 
 interlineation made by the husband, was rectified by the court, 
 and the deed was made to speak its original language. {Garner v. 
 
ANTENUPTIAL CONTRACTS. 463 
 
 Garner, 1 Dessau. S. 437.) But the person who drew a marriage 
 settlement and swears that it was drawn in conformity to his 
 instructions, will not be permitted to prove that the object or 
 intention of the deed is different from that which appears on ita 
 face ; there being no allegation of fraud. {Dwpree v. McDonald, 
 4 Dessau. E. 209.) 
 
 When a husband on marriage imposed on his wife by giving her 
 a bond void at law, equity established the agreement according to 
 the intent of the parties. ( Watkins v. Waikms, 2 Atk. B. 96.) 
 
 Two parties being infants and contemplating a marriage, the 
 intended wife being possessed of a large amount of United States 
 stock, a few days before her marriage transferred the entire legal 
 estate therein to trustees, virho were to permit her to receive during 
 life the dividends and profits of the stock. She reserved no 
 power over the principal except the jus disponendi by last will 
 and testament to take effect in case she died, without leaving a 
 child or descendant. After the marriage of the parties and they 
 had attained their full age, a bill was filed by them against the 
 trustees praying a modification of the trust by having a part of 
 the trust fund invested under the direction of the husband in. the 
 purchase of a farm ; it was held, that whether the deed of transfer 
 was valid or fi*audulent, the coui-t could not change the trust ; that 
 if valid it had given the parties no control over the principal 
 fund, and a court of equity did not possess aily power to change 
 and modify trusts so contrary to the manifest intention of the 
 deeds creating them ; or if a fraud on the rights of the intended 
 husband, though the court might set the deed aside, yet it could 
 make no terms with a fraudulent instrument. {Lowry v. Tierman, 
 2 Harr. <& Gill. E. 34.) 
 
 When a lady married before she attained twenty-one, and by 
 her mai-riage articles she and her husband covenanted to assign a 
 trult fund, in which she had a reversionary interest, to trustees in 
 trust for her and her husband and the children of their marriage, 
 a bill for a specific performance of the articles filed by the children 
 against their father and mother, after the mother's interest had 
 become an interest in possession, but whilst the fund remained 
 outstanding, cannot be sustained. The fact that the property has 
 not been reduced to the possession of the husband, in such a case, 
 prevents the articles from binding him. Whether he might not be 
 liable in respect of such interest in the property as he might ulti- 
 
464 LAW OF COVERTURE. 
 
 mately acquire is another question. But so long as the fund 
 remains outstanding, a bill cannot be sustained against the husband. 
 {Berton v. Berton, 16 8im. R. 552. 8. C. 39 Eng. Ch. R. 551 
 JEllison V. Ellison,- Z<o Eng. Ch. R. 308.) 
 
 It is the province of a court of eqjiity to decree the specific 
 execution of marriage articles, when the apparent intention of the 
 parties will direct the decree, without a strict scanning of the arti- 
 cles according to nice grammatical rules, or the technical meaning 
 of words! {Rocme v. Kern, 1 Wash. R. 47.) 
 
 It is a general rule that the husband is precluded from disturb- 
 ing an antenruptial settlement, or even aiding the wife in setting it 
 aside when voidable as to ♦her; but if it clearly appear that the 
 husband executed the deed in ignorance of the fact that his 
 intended wife was not a party to it, and that it did not affect her 
 real estate, and his covenants and conveyance were, therefore, 
 made under a mistake ; and, further, that the dispositions of the 
 settlement were highly injurious, the court, in view of the fact of 
 the -entire failure of the consideration, of the complainant's grant 
 and covenants as to the real "estate, in connection with other facts, 
 will hold that the husband is nqt bound by the deed, and upon the 
 submission of the parties, a new settlement will be decreed, with 
 proper guards for the parties. (^Temple v. Ha/wley, 1 Sand. Ch. 
 R. 153.) 
 
 § 332. The law "is well settled, that a provision made for the 
 wife in contemplation of. marriage, which, by the terms of it, is 
 not to take effect until after the death of the husband, is not 
 extinguished by the subsequent marriage. {Gage v. Acton, 1 Salh. 
 R. 325, Gibson v. Gibson, 15 Mass. R. 106, 111.) 
 
 So, contracts by the husband with the wife previous to marriage, 
 containing duties not to be performed until after the dissolution of 
 the coverture, which were entered into with a view of providing 
 for the wife, or his issue by her, are binding upon him, botlf in 
 law and equity ; and in every case, when the agreement is fair, 
 and in accordance with the spirit and policy of the law, equity 
 wiU enforce its specific performance. ( West v. West, 10 S&rg. (& 
 RoajMs i?..44Y.) And equity will compel a specific performance 
 of an antenuptial agreement, at the request of any person coming 
 within the i«ifluence of the marriage consideration in favor of col- 
 lateral relations, and all who rest their claims upon a valuable 
 consideration. {Pulvertoft v. Pulvertoft, 18 Yes. R. 92. BradAsh 
 
ANTSNUFTIAL CONTRACTS. 465 
 
 V. CHhls, 3 Johns. Ch. R. 550.) In fact, a contract made in con- 
 templation of the marriage of the parties, respecting tlie property 
 of either, to be performed after marriage, may be enforced in 
 equity. {Miller v. Goodwin, 8 Oraxfa R. 542.) ' 
 
 A promise made by an intended husband before marriage not to 
 take the wife away from the immediate neighborhood of her 
 mother without her consent^ is not legally binding \xpon the hue- 
 band. {Rair v. Eair,l(i Rich. Eq. R. 163;) 
 
 Antenuptial agreements, being peculiarly liable to misappre- 
 hension and misrepresentation, will not be enforced in the courts, 
 unless they are entirely satisfied that such agreements were made. 
 {Montgomery v. Henderson, 3 Jones' Eq. R. 113.) 
 
 An antenuptial settlement not evidenced by deed, but resting in 
 the husband's written covenant, if final and clear and complete, 
 and there is nothing else to prevent, will be enforced in a court 
 of equity for the benefit of the wife, if she so elect, or she may dis- 
 regard it, and claim her right of dower and distribution. {Wood- 
 wa/rd V. Woodman-d, 6 8neeWs R. 49.) 
 
 A bond given by the husband to his intended wife, to be paid to 
 her by his executors after his death, is not avoided by the mamage, 
 but is recoverable at law. This doctrine is well sustained in a 
 case in the English courts, in which Lord Kenyon observed that 
 he readily, acceded to the general proposition that a person, by 
 marrying his creditor, releases the debts of his wife, but lamented 
 that Lord Holt should (in lA. Raymond) have had recourse to 
 such flimsy and technical arguments to enforce a case so directly 
 against law and conscience as that a man could not bind his prop- 
 erty in favor of his wife, and could not make it liable to the pay- 
 ment of a bond executed before marriage. No case is probably to 
 be found in the modern decisions of sufficient authority to over- 
 throw the reasoning of Lord Kenyon in the case referred to, and 
 the doctrine of the case may now be relied on as good law. {Mel- 
 hov/rne v. Ewart, 6 Term R. 381. Reeves' Bom. Rel. 169, note 1.) 
 
 But there can be no doubt at all, that a bond given to the wife 
 by the husband before marriage, the condition of which is to 
 make a settlement on her, will be enforced by a court of equity. 
 Such a bond is sufficient evidence of an agreement, to make a 
 settlement, and it will therefore be specifically enforced. 
 
 § 333. It is well settled upon principle and authority, that to 
 make an antenuptial agreement void as a fraud upon creditors, it 
 59 
 
466 LAW OP COVERTUBE. 
 
 is necessary that both parties should concur in or have cognizance 
 of the intended fraud. If the settler alone intend a fraud, and the 
 other party had no notice of it, but is innocent of it, she is not 
 and cannot be affected by it. As has been before suggested, mar- 
 riage, in contemplation of the law, is not only a valuable consider- 
 ation to support an antenuptial settlement, but is a consideration 
 of the highest value, and from motives of the soundest policy, is 
 upheld with a strong resolution. The husband and wife, parties 
 to such contract, are, therefore, deemed in the highest sense, pur- 
 chasers for a valuable consideration ; and so, that it is hona fide, 
 and without notice of fraud, brought home to both sides, it becomes 
 unimpeachable by creditors. 
 
 A contract, in consideration of a future man-iage, is of that 
 nature which creates a legal and equitable obligation on the parties 
 to perform it — good faith, according to its stipulations. The con- 
 sideration is good and valuable in contemplation of the law, as if 
 it was made on the loan or payment of money. If the contract is 
 excluded, the parties become purchasers ; if it remains executory 
 till after the marriage, they become creditors on its consummation, 
 or assume ^TO tanto the character and acquire the rights of both, if 
 executed only in part. They are entitled -to the protection of all 
 courts in the enjoyment of what is granted, and to their aid in 
 enforcing the pei-formance of what has been stipulated to be done, 
 and when either party can rightfully call on a court of law or 
 equity to compel the other to perform an act necessary to the exe- 
 cution of the contract, and the judgment or decree of the court 
 would be given in his favor, a voluntary performance of the legal 
 or equitable obligation would be equally valid. The consideration 
 being valuable if the contract, whether executed or executory, is 
 made in good faith with one having no notice or knowledge of any 
 fraud, covin or collusion to defraud creditors, performance may be 
 enforced or voluntarily made, and the contract carried into execution 
 at any time, either in whole or in part, as is in the power of the 
 party ; and whatever is so done, will be as valid and binding, 
 between the parties and in relation to third persons, as if the exe- 
 cution had been completed on its date. The law is express in 
 referring to the time of the conveyance and assurance, and 
 embraces not only perfect grants or gifts, but any estate or interest 
 in lands, goods and chattels made, conveyed or assured. {Vide 
 Maguire v. Thompson, 1 Peters' B. 348.) 
 
POST-NUPTIAL CONTRACTS. 467 
 
 § 334. The decisions with respect to post-rmptial agreements 
 are very numerous, and not always harmonious. It may be 
 affirmed, however, as a general principle, that a post-nuptial 
 agreement between husband and wife, fairly entered into, and 
 untainted with fraud,- by which property is set apart for the sepa- 
 rate use of the wife, will be sustained in equitj' as a valid transac- 
 tion. It depends, very much, to be sure as to the objects of the 
 settlement in regard to the future relations of the parties, but there 
 is no doubt that a post-nuptial agreement between husband and 
 wife, made upon a legal and sufficient consideration, will be 
 enforced. When the agreement contemplates the continued co-hab- 
 itation of the parties, the courts are always disposed to uphold it, 
 provided no technicalor substantial principle of law intervenes. 
 But when the post-nuptial agreement contemplates a separation of 
 the parties, there is always some question. Indeed, it has some- 
 times been questioned whether such an agreement ought not to be 
 beld utterly void, to all intents and purposes, as against the policy 
 of the law, and many very respectable authorities have gone to this 
 extent. But generally, however, the authorities upon the subject 
 d,o not adopt this broad principle, whatever may be thought of the 
 policy or venality of a provision for such a separation. 
 
 §335. With respect to stipulations for a separate maintenance 
 of the wife apart from her Imsband, Lord Stowell said : " The 
 law has said, that married persons shall not be legally separated, 
 upon, the mere disinclination of one or both to cohabit together; 
 the disinclination must be founded upon reasons which the law 
 approves, and it is my duty to see whether thoge reasons exist in 
 the present case. To vindicate the policy of the law is no necessary 
 part of the office of a judge ; but, if it were, it would not be diffi- 
 cult to show that the law, in this respect, has acted with its usual 
 vrisdom and humanity, with that true wisdom, and that real 
 humanity, that regards the general interests of mankind. For 
 though, in particular cases, the repugnance of the law to dissolve 
 the obligations of matrimonial cohabitation may operate with 
 great severity upon individuals ; yet it nust be carefully remem- 
 bered, that the general happiness of the married life is secured by 
 its indissolubility. When people understand that they must live 
 together, except for a very few reasons known to the law, .they 
 learn to soften, by mutual accommodation, that yoke which they 
 know they cannot shake off; they become good husbands, ' and 
 
468 . LAW OF COVERTURE. 
 
 good wives, from the necessity of remaining husbands and wives ; 
 for necessity is a powerful master in teaching the duties which it 
 imposes. If it were once understood, that, upon mutual disgust, 
 married persons might be legally separated, many couples, who 
 now pass through the world with mutual cOmfort, with attention 
 to their common offspring, and to the usual order of civil society, 
 might have been at this moment living in a state of mutual 
 unkindness, in a state of estrangement from their common off- 
 spring, and in a state of the most licentious and unreserved crim- 
 inality. In this case, as in many others, the happiness of some 
 individuals must be sacrificed to the greater and more general 
 good." {Evans v. Evans, 1 Hagga/rd's Consistory S. 36.) 
 
 § 336. In another case where the subject was elaborately dis- 
 cussed, Lord Eldon expressed himself thus : " According to the 
 law of this country, marriage is an indissoluble contract. It can 
 only be dissolved a vinculo matrimonii by the legislature ; and that 
 contract, once entered into, imposes upon the husband and wife, 
 both with respect to themselves and with respect to their offspring, 
 most important and most sacred duties ; so important and so sacred, 
 that it does seem a little astonishing, that it ever should have hap- 
 pened, that it should be thought that they could, by a mutual 
 agreement between themselves, destroy all the duties they owed to 
 each other, and all the duties they owed to their offspring. I do 
 not go through what has been stated in a great variety of cases upon 
 the subject, nor do I refer to them for any other purpose than that 
 of .stating that which I think can admit of no contradiction, that 
 it is impossible for any person to read the judgments I have had 
 the honor to pronounce upon the subject, without seeing that I 
 never could, originally, have been a party to any such doctrine. 
 But, when decision followed decision; when men whose profes- 
 sional knowledge, whose talents, and whose abilities I was bound 
 not only to respect, but to revere, had so often in courts of law 
 stated doctrines to which I could not agree, it seemed to me a 
 most improper thing, that I should take upon myself to say, that 
 these doctrines were wrong ; and I believe it will be found, if your 
 lordships look at the judgment to which I am referring, that I 
 was always exceedingly anxious that a case of this important 
 nature should be brought before the House of Lords." {West- 
 meath v. Salisbury, 6 BligKs {N. S.'\ R. 339.) 
 
POST-NUPTIAL CONTRACTS. ' 469 
 
 §337. Judge Story says: "The principal distinctions on this 
 subject, as they are now established, seem to be as follows : In the 
 first place, a deed of separation does not relieve the wife from any 
 of the ordinary disabilities of coverture. In the next place, a deed 
 of separation entered into by the husband and wife alone, without 
 the intervention of trustees, is utterly void. In the next place, a 
 deed for an immediate separation, with the intervention of trustees, 
 will not be enforced, so far as it regards any covenant of separation, 
 but only so far as maintenance is covenanted for by the husband, 
 and the trustees covenant to exonerate him from any debts con- 
 tracted therefor. In tke next place, if a deed of separation contains 
 a covenant purporting to preclude thp parties from any future 
 suits for the restitution of conjugal rights, the covenant will be 
 utterly void. In ^e next place, a deed containing a covenant with 
 trustees for a future separation of the husband and wife, and for 
 her maintenance consequent thereon, will be utterly void. In the 
 next place, even in case of a deed for an immediate separation, if 
 the parties come together again, there is an end to it with respect 
 to any future as well as to the last separation." (2 Story's Eq. 
 Jut. § 1428.) 
 
 § 338. The doctrine of the authorities upon the subject, somewhat 
 indiscriminately given, are : Articles of separation, when there is 
 a trustee with whom the husband covenanted for the separate 
 maintenance of the wife, will be valid, although the wife herself 
 covenanted not to molest the husband, and to indemnify him 
 against her debts. {Brown v. Clark, 1 PMla. H: 561.) 
 
 A post-nuptial agreement between husband and wife, made in 
 view of a voluntary separation, which is fair and reasonable, will 
 be upheld in equity. {Miller v. Miller,!^ Ohio St. E. 527. Wells 
 V. Street, 9 Cal. R. 439.) 
 
 Articles of separation between husband and wife, through the 
 medium of a trustee, for the separate support of the wife, are not 
 v^id as against public policy. {Butler v. Wilson, 14 Ohio B. 257. 
 Vide Schindell v, Schindell, 12 Md. B. 294.) But the court will 
 not enforce a contract between husband and wife to live separate. 
 {Mansfield v. Mansfield^ Wright's [_Ohio] B. 284.) ' 
 
 A deed of gift of chattels from the husband to the wife, without 
 the intervention of a trustee, upon an agreement to live separate, 
 will be no bar to an action at law by the husband for the recovery 
 of the property. {Towney V. Sinolan,r, 3 Row: [Jjfiss.] B. 324.) ' 
 
4Y0 LAW OF COVERTTTBE. 
 
 A post-nuptial agreement, by which the husband and wife agree 
 to live apart, and the husband conveys one-third of his estate to 
 trustees, for the sole use and support of the wife, the trustees cov- 
 enanting that the wife sliall not claim any other portion of the 
 estate, will not bar the wife of her dower and distributive share in 
 her husband's estate. But the wife cannot hold the property con- 
 veyed by the deed, and also be entitled to dower and distribution, 
 and if she files her bill for dower and distribution, it will be con- 
 sidered that she elects to take the latter. ( Watkins v. Watkin^, 
 1 Terg. B. 283.) 
 
 A deed of separation between husband and wife, without con- 
 sideration, is void at law between the parties thereto, and it is of 
 no effect, even in equity, as against the assignees of the husband. 
 The wife's covenant in such articles cannot for^ the consideration 
 for the execution of the deed on the part of the husband. {Oropsey 
 V. McKinney, 30 Barb. H. 47.) An indenture entered into in 
 contemplation of, and as an inducement to, a future separation 
 between husband and wife, is void. {Florentine v. Wilson, Lalor's 
 mU d> Demo's R. 303.) A trust created by a husband, for the sup ■ 
 port and maintenance of his wife, who has left him in consequence 
 of alleged ill-treatment, and is living separate and apart from him, 
 is a valid trust, and wiU uphold a mortgage given by the husband 
 to a trustee, to recover the payment of a specified sum annually 
 for the wife's support. (Calkins v. Ixmg, 22 BarT). R. 97.) And 
 in this case it was substantially held that when husband and wife 
 agree to separate, a stipulation on the part of the husband to pay a 
 specified sum annually, for the separate maintenance and support 
 of the wife, is valid, and may be enforced. This doctrine is laid 
 down as the sequence of the well settled rule, that the husband is 
 bound to support his wife, and the relation of husband and wife is 
 ipso facto a letter of credit to the wife for necessaries suitable and 
 proper to the sphere in which she moves, and that if the husband 
 and wife part by consent, and he secures to her a separate main- 
 tenance, suitable to his condition and circimistances in life, and 
 pays it according to agreement, he is not answerable, even for neces- 
 saries ; while, if they separate without any provision being made 
 for the wife's maintenance, the husband is liable for necessaries 
 furnished her suitable to his condition in life. 
 
 § 339. Judge Keeve says that articles of agreement entered into 
 between husband and wife to live separately are recognized both 
 
POST-NUPTIAL CONTRACTS. 471 
 
 in the courts of law and equity ; and that the parties are bound 
 by all the legal covenants entered into, and. those marital rights 
 which the husband, iu such articles, renounces, he can never 
 resume. And, in a learned note to the third edition of Judge 
 Keeve's work on the domestic relations, it is said : " The question 
 whether an agreement made between husband and wife, during 
 coverture, to her separately, is valid in law, has been a subject of . 
 much discussion in the English courts of law and chancery. It 
 was formerly held that such an agreement was void, and so Lord 
 Eldon intimated in the case of St. John v. St. John (11 Ves. R. 530). 
 His lordship placed it upon the ground that, it was against the 
 policy of the law, and, consequently, void, inasmuch as such settle- 
 ments, creating a separate maintenance, by a mere voluntary 
 agreement between husband and wife, were, in their consequences, 
 destructive to the indissoluble nature of the marriage contract ; 
 and treated it as one of the most serious questions that could be 
 discussed in a court of justice. In Worrall v. Jacob (3 Merri/uale's 
 H. 256), it was considered as settled that chancery would not carry 
 into execution such articles between husband and wife ; though it 
 was admitted that an engagement between the husband and a 
 third person, as a trustee, though originating out of, and having 
 reference to, a> separation, was valid, and would be so considered 
 in chancery. The reason of this decision was said to be that, if 
 such agreements were enforced, it would give the parties th% power 
 to alter- the duties growing out of, and the effect of the marriage 
 contract, and to effect, at their pleasure, a partial dissolution of it. 
 There seems to be no reason why the mere introduction of a trustee 
 should be sufficient to enforce the agreement in chancery. It cer- 
 tainly makes no difference with the effect of the contract. If, as 
 having a tendency to the dissolution of the marriage contract, it is 
 against the policy of the law in the one case, it most clearly is in 
 the other, it is not now necessary to seek for the reason of this 
 anomaly, for the balance of authorities, both in England and the 
 United States, are in favor of sustaining such an agreement, with 
 or without a trustee. {Carson;^. Merry., 3 Paige's Oh. R. 483. 
 Beed v. Beazely, 1 Blaokf. [Ind.'j B. 97. [See the high compliment 
 to the authority of the latter case, in note, 2 Kenfs Com. 176.] 
 Boss V. Willoughhy, 10 Priceh B. 2. 2 BadMy^s Vernon, 386, m 
 note. Bodrny v. Chamlers, 2 East. B. 383. Cooke v. Wiggins, 10 
 Ves. B. 191.) But the introduction of the fiction of a trustee places 
 
472 LAW OF COVEETUBE. 
 
 the agreement valid, Loth in law and chancery. (2 Kenfs Oem. 
 177. Vide Nurse v. Craig, 6 Bos. ds Pul. 148. HindUy v. West- 
 'meath, 6 Barn. c& Cress. B. 100. Sheltha/r v. Gregory, 2 TFew(?. 
 R. 422.) 
 
 "The course of decisions upon the effect of such agreements has 
 been very uniform in the United States. {Randall v. Murgatroyd, 
 4 BaU. R. 304, 307. Browning v. Coppage, 3 BibVs R. 37. Crost- 
 wadght v. Bhdkinson, 2 i&. 4S7. Maguire v. Thompson, 1 Baldwin's 
 a C. [ ZT: /^.] 5. 344. /&;p« V. Loraine, 6 J/mm/. ^. 117. Bray v. 
 Bvdgeon, lb. 132. Tyson v. 7V«ow, 2 EawTcei R. 472.) But in 
 Connecticut the decisions are different, and seem rather to follow 
 the course pointed out by Lord Eldon in St. John v. St. John." In 
 Debhle v. Button (1 Dorj's R. 221), it was held that an agreement 
 between husband and wife, during coverture, could not be engrossed 
 in chancery ; but in another, with the assistance of a trustee, it 
 was held to be binding." {Nicholas v. Palmer, 5 Bay's R. 47. 
 Beeve's Bom. Rel. \Zd ed.] 174, note 1.) 
 
 The learned annotators do not express a decided opinion upon 
 the subject for themselves, but the weight of authority favors the 
 doctrine that these provisions for the separate maintenance «f the 
 wife, when the separation has actually taken place, are valid, and 
 will be enforced by the courts. So that, although the courts will 
 not, in direct terms, decree a separation between husband and 
 wife, yet thej' will do so indirectly by compelling the husband to 
 perform his agreement to pay separate maintenance. Still, the 
 courts will invariably decline to do any thing which may tend to 
 the continuance of a division between husband and wife, under their 
 mutual agreement to live apart, when the husband has placed him- 
 self under no legal or equitable obligation to allow separate 
 maintenance. 
 
 § 340. It is usual in these post-nuptial agreements providing for 
 the separate naaintenance of the wife, that a trustee of the wife is 
 made the medium of the parties, who becomes responsible to the 
 husband that he shall not be made liable for his wife's debts ; and 
 yet there are instances where the contract is between the husband 
 anda third person acting for the wife, and no indemnity is given 
 to the husband against his liability to pay such debts. Upon this 
 subject the cases show that the wife has precisely the same rights 
 as any other cestid que t/rust to call for the execution of the trust 
 created in her favor. So, whether the deed x»f separation securing 
 
POST-NUPTIAL CONTSACTS. 473 
 
 to her maintenance be purely voluntary, or be supported by a 
 valuable consideration, as the covenant of her trustee to indemnify 
 the husband against her debts, she will be entitled in either case to 
 call for an execution of the trust. ( Vide Turner v. Wa/rwiGk, 
 Finch's Gi. Ca. 73. Fitser v. Fitz&r, 2 Ath. R. 511. Clough v. 
 Zmnb.&rt, 10 JSim. M. 174:.) This, of course, is upon the assumption 
 that the rights of creditors and purchasers are not involved. In 
 order that the settlement be valid as to the creditors of the hus- 
 band and purchasers in good faith, it is necessary that it be made 
 for valuable considerations. 
 
 Upon the death of the -wife, separated from her husband upon a 
 post-nuptial settlement, the allowance will be apportioned between 
 the last and accruing times of payment. {Howell v. Hanforth, 2 
 BlaoM. R, 843. 
 
 § 341. The question as to the wife's power of. absolutely dispos- 
 ing of the funds settled upon her by her husband, in consequence 
 of their mutual agreement to live separate, does not appear to be 
 definitely settled. Some judges have held to the opinion that the 
 allowance being made for the wife's maintenance, she cannot alien 
 it by anticipation. While others contend that, the wife being a 
 feme-sole in regard to this provision, there is no ordinary distinc- 
 tion between such a case and the one of a limitation of property 
 to the wife's separate use ; so that the jus disponendi applies to 
 each indiscriminately. Lord Alvanly, Master of the Kolls, said 
 that such an allowance was not property to which the wife was 
 entitled to her sole and separate use ; that there was a special trust 
 xipon it ; that she had no dominion over it, and any attempted dis- 
 position of it by her could not be enforced in a court of equity. 
 (Ryde v. Price, 3 Ves. R. 487.) 
 
 On the contrary, Mr. Eoper expresses the opinion, that when the 
 property is so settled by the husband upon separation as to vest 
 it in the wife for her separate use, consistency requires that she 
 should have the same powers of disposition over it as over funds 
 given to her in the like form of settlement by any other person. 
 {Raper on Husband and Wife, 304.) V 
 
 In a late case. Lord Alvinger, 0. B., though strongly in favor 
 
 * of the doctrine that separate estates created by deeds of separation 
 
 ought not to be made the subject of charge by the wife, said that 
 
 he could not act upon it, however just he might deem it, after the 
 
 cases had gone to so great' a length in giving effect to deeds of 
 
 60 
 
474 LAW OF COVERTURE. 
 
 separation. {Palmer v. Fraser, 3 Tou. <& Goll. Eq. Ex. B. 499.) 
 After all, the question of the wife's power over such funds depends 
 upon the terms of the instrument seciiring the allowance. How- 
 ever, the intent of the provision made for the wife upon separation 
 being to enable her to procure necessaries, it follows that the appli- 
 cation of it to those purposesj whatever the terms of the settlement, 
 is a legitimate appropriation of the property. . 
 
 § 342. It has sometimes been intimated that the same rule of 
 necessity existed that the wife should manifest an intention to 
 charge her separate maintenance with the debts of. particular 
 creditors, as was considered to exist, to entitle her creditors to claim 
 upon her separate estate when not settled upon her for support 
 and maintenance upon separation. Mr. Koper, however, observes 
 that there appears to be a wide difference in principle between the 
 two cases ; for where the property is limited to the wife's separate 
 use, and she cohabits with her husband, the creditor has the hus- 
 band's security for necessaries ; it is but just, therefore, to require 
 some evidence of an agreement between her and her creditor that 
 her separate estate should be applied in satisfaction of his demand. 
 But that when the creditor is deprived of the husband's security, 
 by the allowance to the wife of a yearly sum for maintenance upon 
 separation, *. e. for the express purpose of discharging her neces- 
 sary debts, it seems but reasonable that a com-t of equity should 
 consider this to be such an appropriation of the fund for those 
 demands, as to entitle her separate creditors to maintain a suit in 
 equity to subject it in the hands of her trustees, to the satisfaction 
 of her debts. (2 Roper on Sushand and Wife, 305.) And in a case 
 of separation before Lord Thurlow, he expressed himself upon the 
 subject thus: "Upon the question whether a creditor has aright 
 against the separate estate of the wife and against the husband as 
 allowing it to her, my opinion is, that prima facie a creditor has 
 such right." {Lilia v. Airey, 1 Yes. Jun. R. 277.) Undoubtedly, 
 when the wife's intention appears or is inferred to charge her 
 separate maintenance with a debt for necessaries, it will entitle the 
 creditor to a satisfaction of his debt out of the fund provided for 
 such maintenance. {Stuart v. Richwell, ZMad. R. 387. Murray ' 
 V. Barler, 3 Mylne <& KeerHs R. 209.) Judge Selden, late of the 
 New York court of appeals, seems to be of the opinion that there 
 is no difference between the case of separate maintenance and an 
 ordinary one of a separate estate, with respect to the power of the 
 
POST-NUPTIAL CONTRACTS. 475 
 
 ■wife to charge it. {Tale v. Dederer, 22 N. 7. E. 450, 454.) 
 While Judge Harris, sitting in the same court, evidently places 
 much reliance upon the circumstance that the wife is living apart 
 from her husband when she attempts to charge her estate. ( Yale 
 y. Dederer, 18 N. T. R. 265, 280.) 
 
 § 343. "What will determine a separate maintenance secured to 
 the wife by agreement of the hitsband, is not always an easy matter 
 to determine. Upon principle it would seem that the separate 
 maintenance being founded upon express contract between the 
 parties, or between the husband and the friends of the wife, .it 
 would require the same mutual agreement to dissolve as to make 
 the contract. But this would depend much upon the terms of the 
 separation. If the separation be intended to be permanent, that 
 is during the lives of the parties ; or if the agreement for separation 
 be until both agree to live together again, the wife's consent to 
 put an end to the allowance of separate maintenance is necessary, 
 and . the offer of the husband to take the wife back again and 
 cohabit with her, will not have the effect to' put an end to such 
 contract. But if the agreement for separation be merely tem- 
 porary, or for an uncertain period, then the husband's offer to take 
 back his wife and maintain her, if not artfully and insincerely 
 made, will, without regard to her refusal to return, put an 
 end to the agreement, and a court of equity will not enforce 
 the payment of the separate allowance to the wife. Such seems to 
 be the doctrine of the authorities, both English and American. 
 (Guth V. Ch/,th, 3 Brown^s O. O. 614. Hoare v. Hoa/re, 2 Eidgway's 
 Pari. Ca. 268. Gawder v. Draper, 2 Vent. E. 217. Head v. 
 Head, 3 Atk. E. 647. Oalhms v. Lony, 22 Boff'l. E. 97.) Eecon- 
 ciliation and recohabitation will avoid a deed of separation, but the 
 husband may, nevertheless, so conduct himself afterward as to con- 
 tract a new obligation on the footing of the separation deed. 
 ( Webster v. Webster, 17 English Law amd Equity E. 278. Vide 
 Pidgin v. Cram,, 8 JH. H. E. 350.) However, in such a case, 
 when the wife returns for the purpose of resuming her duties 
 and privileges as a married woman, and is received by her hus- 
 band, the previous agreement to live separate from each other is 
 at an end, and the bond given for the separate maintenance falls 
 with it; and the subsequent abandonment of the husband by 
 the wife does not revive the bond or the legal liability of the 
 husband to afford her a separate maintenance. {Sheltha/r v. 
 
4Y6 LAW OF COVERTURE. 
 
 Gregory, 2 WehdelVs B. 422. And vide Wells v. Stout, 9 Cal. 
 E. 479.) 
 
 If a third person covenant, for a valuable consideration moving 
 from the husband, to pay to the wife a separate maintenance, who 
 was then living apart from her husband by mutual agreement, it 
 seems that the offer of such person to take her to his house will 
 not exempt him from her demand for the separate allowance, 
 because the law imposes upon her no obligation, to reside with 
 such person ; besides, if such a residence were accepted by her, it 
 would have no effect in promoting a reconciliation between her 
 and her husband, which is the object the law has in view in with- 
 holding the maintenance when it is proper to do so. {Button v. 
 Button, 4 Yin. Air. 173.) 
 
 It has been held that the crime of adultery on the part of the 
 wife will not incapacitate her from compelling her husband to pay 
 her separate maintenance, because at common law that • did not 
 affect her right to prosecute her civil actions. ( Vide Seagrame v. 
 Seagrame, 13 Yes. R. 439. Jee v. Thurhw, 2 Barn, cfe Cress. B. 
 651. 8. 0. 9 Eng. C. L. B. 174. Fidd v. Svim, 4 Bos. & PuL 
 B. 121.) In one case, however, the court seemed to doubt whether 
 such an act would not determine the allowance to the wife. 
 {Scholey v. Goodman, 8 Eng. C. L. B. 342.) But the ease of Seoy 
 gi''3Bt2A^WCSiO.&,'^MJ^o'^ cited, and the court designedlyabstaineil" 
 from expressing a decided opinion upon the subject, although the 
 turn which the case took would indicate that the judges were 
 undecided upon the question. Since that, however, the case of 
 Jee V. Thurlow has been decided, and the weight of authority is 
 clear that the adultery of the wife will not ordinarily avoid the 
 allowance, particularly when the covenant is founded upon the 
 engagements of a trustee to indemnify the husband against the sup- 
 port of the wife, on the ground that if the husband, when executing 
 his deed* of settlement, thinks proper to make the non-commission 
 of adultery, or any thing else, a condition of paying the annuity 
 to his wife, he should have covenanted to pay it guamdin cas ta 
 vixerit — that is, as long as she might have lived chaste or virtuous. 
 
 § 344. When husband and wife enter into covenants to ^ive sep- 
 arately, the husband renoimces his marital rights to the pei-son of 
 his wife. Of course, she is then entitled to all acquisitions of prop- 
 erty which may arise from her personal services ; and it has been 
 said tnat the husbajid can never recover any thing of the man who 
 
POST-NUPTIAL CONTRACTS. 477 
 
 should take away his wife so separated, or maintain a suit against 
 any man for criminal conversation with her. This latter doctrine, 
 however, is not without contradictory authorities. Mr. Eoper lays 
 down the rule that the wife, after a separation, retains the character 
 of a married woman, and that the husband may recover damages 
 for adultery committed by the wife while living apart from him 
 though the adultery does not cause any forfeiture of the provisions 
 under the deed of settlement ; and Chancellor Kent, it seems, enter- 
 tained the same opinion. (2 Roper on Rmbamd and Wife, ly 
 Jacob, 301-322. 2 Kent's Cam. 177, note h.) 
 
 But Judge Eeeve states the doctrine, unreservedly, that th^ hus- 
 band, while living apart from his wife under a post-nuptial 
 agreement, cannot maintain an action against any man for criminal 
 conversation with his wife, or for takiag her away. {Reeve's Dom. 
 Rel. 92.) 
 
 Lord.Kenyou once ruled at nisi prius, that an action for the 
 adultery of the wife was founded on the injury which the husband 
 has sustained in the deprivation of the comfort, society and assis- 
 tance of his wife, and therefore, when the husband voluntarily 
 relinquishes the comfort, society and assistance of his wife by con- 
 senting to a separation from her, he can suffer no loss from her , 
 incontinency while such separation continues ; and his opinion was 
 afterward confirmed by the court of king's bench iipon a motion 
 for a new trial. {Weedon v. Timbrell, 5 Term R. 357.) 
 
 Lord EUenborough laid down the proposition, and the court of 
 king's bench affirmed it, that the surrender by the husband of his 
 marital rights to the comfort, society and assistance of his wife, 
 under the instrument of separation must be complete and absolute ; 
 so that, if the husband reserve his wife's assistance for the benefit 
 of their infant children, and she is to have liberty to visit his house 
 as often as she pleases, to afford them all necessary care and atten- 
 tion, in such and the like instances the husband may maintain an 
 action for criminal intercourse with her during the separation, 
 upon the principle that he had not, in fact, wholly parted with the 
 comfort, society and assistance of his wife ; and, at the same time, 
 his lordship intimated that the decision of Weedon v. Timbrell 
 was not good law to the extent there decided. {Chambers v. Ocml- 
 jield, 6 East's R. 245.) 
 
 Perhaps the point may be regarded as unsettled, and yet the 
 better opinion is that, notwithstanding the agreement of separa- 
 
478 ZAW OF COVMRTUBM. 
 
 tion, the relation of husband and wife, and the rights arising out 
 of that relation, must be considered as subsisting for all legal pur 
 poses; and, therefore, that a separation will not deprive the 
 husband of the legal right of maintaining his action for criminal 
 conversation with his wife, whatever effect it may have upon the 
 amount of damages. ( Vide Ma/rshall v. Mutton, 8 Term R. 548. 
 Winter v. Henn, 19 Eng. C. L. H. 491. Ha/rvey v. Watson, 7 
 Man. & Gran. E. 644.) 
 
 It should be remarked that the wife who lives separate and 
 apart from her husband is wholly freed and discharged from all 
 government and restraint on the part of the husband. Should he 
 attempt to seize her person, and compel her to cohabit with him, 
 she would be set at liberty on habeas corpas, and the husband 
 might be punished criminallyi, as for a breach of the peace, or an 
 assault and battery. The contract by the husband to permit his 
 wife to live apart from him is a formal renunciation of the marital 
 right to seize her person', and hence the remedy which the la vr pro- 
 vides in case he violate his engagement. ( Vide Rex v. Lester, 1 
 Sl/range^s R. 478. Rex v. Cla/rTcson, 2 il). 444. Rex v. Mead, 1 
 Burr. R. 542. The King v. Winton, 5 Term R. 89.) E'er is the 
 husband justified in entering the house of a third person to reclaim 
 his wife, when he has allowed her, by a separation deed, to live 
 where slie pleases. (Lewis v. Pansford, 34 Eng. C. L. R. 584.) 
 
 § 345. As has been before intimated, a settlement of property 
 upon a wife by articles of separation does not affect the right of 
 purchasers or creditors, unless it be made upon ample pecuniary 
 consideration, or there be a covenant, on the part of some friend of 
 the wife, or her trustees, to indemnify the husband. Indeed, all 
 post-nuptial settlements of property, whether with a view to a 
 separation of the husband and wife or not, are void as to creditors 
 and purchasers in good faith, unless made upon adequate considera- 
 tion, and such a consideration as would bar creditors in other cases 
 between debtors and creditors. A reference to some of the authori- 
 ties will illustrate the rule. 
 
 A marriage settlement made when the husband was deeply in 
 deM, covering the greater part of the grantor's property, on the 
 e^ of judgment, and not recorded, was held absolutely void as to 
 creditors. (Croft v. Arthur, 3 Dessau. R. 223.) 
 
 A conveyance of the whole of his property by a husband to 
 trustees, for .the benefit of the wife and his issue, is a voluntary 
 
POSJ^NUPTIAL CONTSACTS. 479 
 
 conveyance, and the subsequent sale of the property is carried back 
 to the deed of settlement, and considered as proving that deed to 
 have been executed with a fraudulent intent to deceive a subsequent 
 creditor. {Caihcart v. Robinson, 5 Peters' B. 264.) 
 
 A voluntary settlement after marriage, in pursuance of a parol 
 agreement entered into before man-iage, is not valid as to creditors, 
 and especially if the post-nuptial agreement does not recite the 
 parol antenuptial agreement. But a settlement after marriage in 
 pursuance of a valid written agreement before marriage, is good. 
 {Reade v. Livingston, 3 Johns. Ch. R. 488.) And vide Satter- 
 thwaite V. Gredey, 3 OreerHs Ch. R. 489.) And a settlement after 
 marriage, on a wife, of property belonging to her before marriage, 
 in pursuance of an antenuptial parol agreement, is good as against 
 creditors. {Wood v. Smiage, Walker's Ch. R. 471.) A post- 
 nuptial settlement by a husband upon his wife, is void as to credit- 
 ors then existing, but may be good as to subsequent creditors. 
 (Bank JJ. S. v. Ennis, WrigMs lOhio] R. 604. Rut vide Picquet 
 V. Swan, 4 Mason^s R. 443.) "When it is established that, at the 
 time of a voluntary settlement on the wife by the husband, he was 
 indebted to any amount, the burden of proof is on the claimant 
 und^r the settlement to show the solvency of the husband sufficie^t ^ 
 to establish that it was not covinous. Such a settlement, though 
 not fraudulent per se, if made with a fraudulent intent as to any 
 creditor then existing, or who might in fature exist, would be 
 void. ( Woolsten's Appeal, 51 Penn. R. 452. Vide also Hvdnal 
 V. Wilder, 4 McCord's R. 294.) A voluntary settlement, of 
 either lands or chattels, by a person indebted at the time, for 
 the benefit of his wife and children, is void as against creditors. 
 (Bayard v. Hoffman, 4 Johns. Ch. R. 460. But vide Teasdale v. 
 Reaiorne, 2 Bay's R.54:6.) A post-nuptial settlement in pursuance 
 of a parol agreement entered into before marriage is not valid, if 
 the husband be indebted at the time of the settlement, and as to his 
 antecedent creditors, it will be declared absolutely void. (Borst 
 V. Careij, 16 Barb. R. 136.) 
 
 § 346. But all the authorities agree that a post-nuptial agreement 
 between husband and wife, by which property is set apart for the 
 wife, though void at law, will be sustained in equity, unless the 
 rights of creditors interfere. ( Wood v. Worden, 20 Ohio R. 518. 
 Oa/rUoh v. 8f/rong, 3 Podge's Ch. R. 440.) And a fair post-nuptial 
 agreement by which the conveyance .of land is provided for, wiU 
 
480 LAW OF COVEETURB. 
 
 be enforced and a conveyance decreed after the death of the hus- 
 band. {Thomas v. Br own; W Ohio St. B. 247.) 
 
 A post-nuptial agreement between husband and wife, by which 
 the husband settled upon his wife the land and personal property 
 which had come to the wife by descent, the personalty being about 
 equivalent to her equity, was sustained as to that, but declared 
 void as to his tenancy by the curtesy initiate, at the suit of his 
 creditors. ( Wickes v. Clarke, 8 Paige's Ch. B. 161.) The wife's 
 equity in a legacy is a sufficient consideration for a post-nuptial 
 agreement of the husband that a part of it, when collected, shall 
 be appropriated for the sole benefit of herself and her children. 
 {Partridge v. Havens, 10 Pcdgis Ch. R. 618.) 
 
 In a contract between the wife, by the obligee as her trustee, 
 and the husband's personal representative, a bond given by the 
 husband, after marriage, to secure to her the amount of a legacy 
 bequeathed to her by her father's will, was held valid. {^Northrwp 
 V. Ba/rnum, 15 Wend. R. 167.) 
 
 The presumption that he who supplies the money to make a 
 purchase, intends it for his own benefit rather than that of another, 
 does not apply in cases like that of parent and child, or husband 
 and wife, when the purchase may fairly be deemed to have been 
 made for another from motives of natural love and affection. The 
 presumption in such cases is, that the purchase is intended as an 
 advancement, and it will be sustained iinless the contraiy is estab- 
 lished by proof. ' Upon this principle, when a purchase is made by 
 a husband, and the deed taken in the name of the wife, a resulting 
 trust cannot be established, in favor of the husband without some 
 evidence to rebut the presumption that the deed was intended as a 
 provision in the wife's favor. ( Wilton v. Bevine, 20 Bari. R. 9. 
 Yide also Jencks v. Alexander, 11 Paige's Ch. R. 619.) 
 
 § 347. The doctrine of the authorities upon the subject of agree- 
 ments for a separate maintenance has been intelligently extracted, 
 and the following conclusions arrived at: "First, that they are 
 valid, and will be enforced both at law and in equity, without the 
 intervention of a trustee to support them ; secondly, that they are 
 valid both against purchasers and creditors, when made in pur- 
 suance of an agreement in writing, entered into by the parties 
 anterior to the marriage, the marriage in such case being a valuable 
 consideration for the settlement, and that when made after marriage, 
 though void as against creditors at the time of the conveyance, they 
 
POST-NUPTIAL CONTRACTS. 481 
 
 are valid against subsequent purchasers and creditors ; and, thirdly, 
 that they are not contrary to the spirit and policy of the law. It 
 would, indeed, he strange that when, from family discords or 
 otherwise, a separation between husband and wife becomes indis- 
 pensably necessary to the happiness of both, that the law should 
 refuse its sanction to a provision made by the husband to shield 
 the wife, when he is amply able and willing to place her in a situa- 
 tion where^ she will be protected from poverty and want, and no 
 longer be a burden upon her friends ; or when his brutal insults 
 may have driven her forth upon the world, that the law should 
 not grasp at that momentary relaxation of his barbarity which 
 influences him to provide such a settlement for his wife. But this 
 question is now too well settled to be longer susceptible of litiga- 
 tion ; and the courts of law and equity, both in England and the 
 TJnited States, now almost universally lend their assistance in. 
 carrying out the humane provisions in support of the wife." 
 {Eerne^s Dom. Rel. 3d ed. 181, note 1.) 
 
 § 348. The terms "separate estate" and "separate use" are 
 very often used in connection with the rights .of a feme-ooyert as 
 synonymous, but there is a great difference in thpir real signiflca-, 
 tion. The expression " separate estate " means property given or 
 settled to the separate use of a married wOman, or as it is defined 
 in a late case, it means an equitable estate held by some one in 
 trust for a married woman. {Todd's Ap^peal, 24 Perm. R. 429.) 
 Or, according to Judge Bouvier, by the term separate estate is 
 meant that property which belongs to a married woman, and over 
 which her husband has no right in equity.. (4, Boy/p. Inst. 272.) 
 The estate may consist of lands or personal chattels. 
 
 According to Lord Bacon, " a use is an owner's life in trust." 
 (3 BacorCs Works, 298.) As the word uses was employed in the 
 Eoman civil law, it meant a right to take so much of the fruit or 
 profit of a thing as was needed for sustenance ; and by the common 
 law a use is the right in equity to have the profit or benefit of 
 lands or tenements ; or it means a confidence reposed in one who 
 has the property in possession, or in whom is the legal title, that 
 he will hold it for the use or benefit of another, who is called the 
 cestui qui use. It will be seen, therefore, that the two terms 
 " separate estate," and " separate use," although often spoken of 
 together, and in many respects similar in their meaning, are 
 different in important particulars. The first term is invariably: 
 61 
 
482 LAW OF COVERTURE. 
 
 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 y. Caldwell, 31 Penn. B. 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 
 {Hams' Estate, 3 Phila. E. 326. Harrison v. Brolasky, 1 Am. 
 Zaiv Beg. i39.) 
 
 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. Blake- 
 man, a Sand. B. 631. S.G.i^ N. T. B. 567.) 
 
 ISTo 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. B. 493. 
 Tide HAmov/reoMX v. Van Bensselaer, 1 Barh. Ch. B. 34.) 
 
 A conveyance by a husband of all his right in his wife's prop- 
 erty 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. {Bon^ 
 neWy's Estate, 2 Phila. B. 51.) 
 
 CHAPTEE XXV. 
 
 AOQtnsrnoNS of the wife dueing coveetttee — transactions 
 
 BETWEEN HUSBAND AND WIFE — ^EEAL ESTATE CONVEYED TO HUS- 
 BAND AND WIFE, HOW HELD WIFE's EEAL PEOPEETT, HOW 
 
 TEANSFEEEED. "^ 
 
 § 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 
 
WIPE S ACQUISITIONS. 483 
 
 into contracts and incur liabilities in reference to such property, 
 and dispose of it as a feme-sole, notwithstanding her coverture and 
 disability at la\<r. But independently of the acqtiirement 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 urider 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 dp 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 prop- 
 erty ; for the custom does not extend to this point, it regarding 
 only trade and commerce. {Lwoie v. PhiUips, 3 Burr. B. 1Y82.) 
 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 subse- 
 quent permission. Upon the abstract question of the legal power 
 of the wife to carry on trade upon her separate account during mar- 
 riage. Lord Mansfield has observed, " that whether by any means 
 a man might before marriage put his intended wife in a situatioa 
 to carry on a separate trade, there was no authority that he might 
 not do so." {Jarmcm v. WaUoton, Z Term R. 620.) , 
 
 When the agreement is made previously to the mamage, 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 him- 
 self, 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. 
 
484 LAW OF COVERTURE. 
 
 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 BrigMs Huslomd cmd Wife, 298. 
 Vide Kami 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 theni, 
 and therefore she becomes entitled to all her earnings, as her 
 separate estate. {Megrath v. Robertson, 1 Desscm. 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. Chamher- 
 ladn, 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, 11 Serg. & 
 Rawl^s R. 130. Lawrence v. 8])ea/r, 17 Cal. B. 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 & feme-sole. ( Yide 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, rnay 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 ofpjpeal, 26 Penn. R. 233.) 
 
 And in the State of Ohio, it has been decided that a wife aban- 
 doned in a foreign country, and who comes to this country to 
 reside after such abandonment, is competent to contract for neces- 
 saries and acquire property by her own labor, and bring suits, and 
 be sued, in the same manner as though she was a feme-, 
 {Wagg v. Oihlons, 5 Ohio St. R. 680.) 
 
WIFE^S ACQUISITIONS. 485 
 
 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. {AVbot v. JSagley, 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 
 hiisband 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: "Misera- 
 ble, 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 con- 
 tinuance of such desertion. If that were the case, they could 
 obtain no credit on accoimt of their husbands, for no process could 
 reach him ; and they could not recover fgr 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 com- 
 mon law, founded in reason and necessity, in cases of exile and 
 abjuration. The plaintiff has been domiciled here many, years as 
 a fem^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 mate 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 fpreiga 
 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 fem^-sole, and that 
 
486 LAW OF COVEMTUSK 
 
 her release would be a yalid 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. {Chegory v. Pierce, 4 Mete. [Jfass.] B. 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 y. Price, ZVes. P. 4AZ. Beard 
 V. WM, 2 Bos. & Pvl. P. 105. Wardell v. Gooch, 7 East's B. 
 582. St. John v. St. John, 11 Yes. B. 529. Baker v. Barney, 8 
 Johns. B. 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 deser- 
 tion 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 pro- 
 vision 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 Maime B. 217.) 
 
 § 353. In the State of !New Tork, it has been held that previous 
 to 1860 the common law controlled the relation and rights of hus- 
 band 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 
 
wiFiPs AcqmsiTiom. 487 
 
 the citation of authorities to prove that by the common law the 
 husband and wife are but a single person, and that during coverture 
 the husband is entitled to all the services and earnings of the wife, 
 as well as her personal estate, which vests in him absolutely the 
 moment it comes into his possession, as one of his marital rights. ' 
 * * * It follows from this that the plaintiff has no right to 
 these earnings which can be enforced in an action at law, nor 
 indeed in equity. She has no more right to collect the debt than 
 any other third person. For, although the agreement was with 
 her, and she was to be paid, she was incapable of entering into 
 any such contract on her own account at the time, and could 
 acquire no separate right by it. The assent of the husband was 
 nothing in law, other than that she might labor on his account and 
 receive the money for him as his agent; even if the fact found can 
 be construed into a consent that the money might be paid directly 
 to her." ( Woodbeck v. Hmens, 42 Barb. B. 66, 69.) Here it did 
 not appear that the husband expressly permitted his wife to do the 
 work upon her own account, and receive compensation for her 
 separate use; and yet the tenor of the decision is to the effect that, 
 if such fact had appeared, it would not change the result. This 
 would seem to be in conflict with the doctrine laid down in South 
 Carolina that a wife may become a sole trader "bj permission of 
 her husband, and thereby becomes entitled to all her earnings as her 
 separate estate. {YideMagrdth\. Robertson, 1 Desscm. B. 445.) 
 But in the State of Massachusetts, it has been held that an ante- 
 nuptial agreement that the wife shall have her own earnings to her 
 separate use is fraudulent and void as against previous or subse- 
 quent creditors of the husband. {Keith v. Woombell, 8 Pick. B. 
 215.) 
 
 In Kentucky, it has been held that when the acquisition of the 
 title to property is fair, the husband's rescission of the contract 
 whereby it was acquired cannot affect her, although she cannot 
 hold an estate acquired by the joint fraud of herself and husband. 
 {Gere v. SummersaM, 5 Mow. B. 512. Vide also Bashaw v. 
 Chamberlain, 7 B. Man. B. 443.) 
 
 § 354. The power of a married woman to carry on business on 
 her own account, and to sue and be sued; is regulated in several of 
 the states by statute, which will be particularly noted hereafter. ■ 
 
 Of course, where the marriage is dissolved by an absolute divorce, 
 the wife may then do business and receive all the fruits of -her. 
 
488 LAW OF COVERTURE. 
 
 business and personal earnings, the same as tliongli she was never 
 married; although upon this matter we have no very distinct 
 light from the English common law. The approved doctrine, how- 
 ever, is that a divorce from the bond of matrimony places both 
 ' parties, the innocent and the guilty, so far as this question is con- 
 cerned, in the condition of single persons. Certain disabilities may 
 still attach to the offending party, but so far as the acquisition of 
 property is concerned, the condition of the parties is the same to all 
 intents and purposes as though they had never been married. 
 
 Whether the wife, after a divorce from bed and board, may do 
 business, and sue and be sued in all respects as a feme-sole, is a 
 question of more doubt ; and yet the better opinion is .that she may. 
 In a case in the supreme judicial court of Massachusetts, Chief 
 Justice Shaw observed : " After such divorce, the law of this com- 
 monwealth recognizes her right to acquire and hold property, to 
 take her Own earnings to her own use, for the support and main- 
 tenance of herself and children. She is deprived of the protection 
 and exempted from the control of her husband. She may, by the 
 decree of the court granting the divorce, and pursuant to the 
 provisions of the statute laws of the commonwealth, be charged 
 with the custody, and consequently with the support and main- 
 tenance, of the children of the marriage. The reason, therefore, 
 why a wife cannot sue or be sued without joining and being 
 jpined with her husband, does -not exist. But the relation in which 
 \he AiYorce a mensa et thoro places the parties, opposes such joinder. 
 If it were necessary to join the husband as plaintifiF, he might 
 release her rights, by which she would be subjected to costs ; if he 
 might be joined as defendant, he might be made subject to her 
 debts ; both of which consequences are repugnant to the new rela- 
 tion of divided and separate interests, in which the law by such a 
 decree places them. Whilst the law thus recognizes the right of a 
 woman so divorced to acquire and take the proceeds of her indus- 
 try to her own use, it recognizes her power to make contracts ; and 
 if she could not sue or be sued, it would present the anomalous case 
 in which the law recognizes a right without affording a remedy for 
 vindicating it, and subjects a party to a duty without lending its 
 aid to enforce it." {Pierce v. Burnhwm, 4 Mete. R. 303, 306. Vide 
 also Dean v. Richmond, 5 Pick. R. 461.) And there are cases in 
 others of the states where the same doctrine is favored, {Vide 
 L^&ore V. Murdock, Wrights R. 205. Taylor v. Simpson, 5 J. J. 
 
WIFH^S ACQUISITIONS. 489 
 
 Marsh. R. 689. Benadum v. Pratt, 1 Ohio St. R. 403. Prather v. 
 Ciarke, 1 Tread. P. 453.) This would seem to be a very reason- 
 able doctrine, and yet there are authorities apparently opposed to 
 it, ( Vide Bwrr v. Burr, 10 Paigia Oh. P. 166. Olarh v. Clark, 
 6 Watts d: Sm-g. P. 85. Bcvrh&ry. Barber, 1 Chand. P. 280.) 
 
 § 355. It may be remarked that the capacity of a feme-covert to 
 contract, and her liability for her debts, being exceptional cases, a 
 plaintiff who seeks to charge her by a judgment must bring his 
 case within some of the exceptions stated. {Mahen V. Qormley^ 
 24 Penn. P. 80.) 
 
 When the declaration contains no averment respecting the origiij. 
 of the debt, the plea of coverture is a good defense of the wife. 
 If the plaintiff wishes to avoid the effect of such a plea, he must 
 set forth in hia replication the special circumstances which make 
 the wife liable notwithstanding her coverture, or amend his declara- 
 tion so as to do so. {Murry v. Keyes, 35 Penn,. P. 484.) It is 
 proper that this doctrine be borne in mind in connection with the 
 subject of the wife's acquisitions during coverture, as the subjects 
 are closely related. 
 
 When the husband and wife cohabit, the presumption always is 
 that the labor or business of the wife is on the account of her hus- 
 band. When a wife and her son went into business together, and 
 her husband acted as their business agent, the court required 
 strong proof that the property was the separate estate of the wife, 
 as against the creditors of the husband, on account of the legal 
 presumptions to the contrary. {Horneffer v. Dwress, 13 Wis. P. 
 603.) 
 
 § 356. When the husband permits the wife to have and make 
 profit of certain articles of his property, either for her own use, or 
 in consideration of her supplying the family with particular kinds 
 of necessaries, or when he makes to her a yearly allowance for the 
 keeping of his house, the profits in the first case, and the savings 
 in the other, have in equity been considered as the wife's own 
 separate estate, although it is admitted that at law, upon the 
 principle that all the personal property which a married woman 
 acquires is that of her husband, they belong to him. This doc- 
 trine has been recognized in several cases in England, especially 
 where there was no creditor of the husband to contend with. 
 ( Tide SlMvning v. Style, 3 P. Wms. P. 337. Oalmady v. OaZ- 
 mady, 11 Vin. Ahr. 181. Maaigey v. Ewngerford, 2 1^. Ca^ Air. 
 62 
 
490 , LAW OF COVMSTURE. 
 
 156, in margm.) The same doctrine has been recognized to the 
 fullest extent hy the courts of ]!Torth Carolina. {Kee t. Vassar, 2 
 IredelVs Eq. R. 553.) 
 
 But Mr. Eoper remarks ; " These cases, in which the wife has 
 been considered to have a separate property in her savings out of 
 a voluntary allowance from her husband, are shaken by later 
 authorities, which have laid down the principle that the wife can- 
 not acquire separate property from her husband, except by a clear, 
 irrevocable gift, either to some person as a trustee, or by some 
 clear and distinct act of his, by which he divests himself of the 
 property, engaging to hold it as a trustee for the separate use of 
 his wife." (2 Roper on Husband and Wife, 104, note.) And in a 
 leading case, when the question was as to the wife's right to jewels, 
 stated to have been bought out of a yearly sum allowed by her 
 husband for her expenses during cohabitation, the lord keeper 
 thought that would make no difference, that if the wife saved 
 any thing out of such allowance, it belonged to the husband. 
 {TyrrelVs case, 1 Freem. R. 304.) 
 
 § 357. Upon the principle of union of husband and wife so as 
 to be but one person,' the husband cannot by any common law 
 conveyance give or grant any estate ito the wife, either in possession, 
 reversion or remainder; and the same disability at common law 
 prevails in regard to the wife. But there are transactions between 
 husband and wife which, though void at law, are good in equity, 
 and will be supported when they are bona fide, and not intended 
 as covers for fraud, nor are such unreasonable acts as to prevent 
 the interference of the court. 
 
 It has been held that the wife may take from the husband by a 
 purchase made by him in her name, or in their joint names, which 
 will be presumed to have been intended as a gift and advancement 
 to her, unless evidence of a different intention be adduced. {King- 
 dom V. Bridges, 2 Tern. R. 67. Glaister v. Hewes, 8 Yes. R. 99.) 
 And in a caise where the husband purchased stock in the name of 
 himself and wife. Lord Eldon said that,^*ma facie, it was a gift 
 to her in the event of her surviving, unless evidence of contem- 
 poraneous acts showing a contrary intention was produced, (fioates 
 V. Stevens, 1 You. & Qol. Ex. R. 66.) A transfer by the husband 
 ois stock already purchased, into his wife's name, or into their joint 
 names, would a fortiori be presumed to be a gift to her ; a transfer 
 being stronger evidence of an intention to give than a purchase in 
 
GIFTS FROM HUSBAND TO WIFE. 491 
 
 the name of another. {George v. Bcmh of England, 1 Prions B. 
 646. Bider v. Kidder, 10 Yes. B. 360. Dummer v. Pitcher, 5 
 Sim. B. 25. • Low v. Carter, 1 .Seaw. i2. 426.) But it has been 
 said that gifts from husband to wife mnst be reasonable, or they 
 ■will not be sustained. Thus in a case where the husband, by a 
 deed-poll, gave and granted to his wife all the property which he 
 then had or might afterward have, Lord Hardwicke said that such 
 a grant or gift could not take effect, because the law would not 
 permit a man to make a grant or conveyance to his wife during his 
 life, and that the court would not allow the wife to have the whole 
 of her husband's estate while he lived, for that was not in the 
 nature of a provision, which was all that she was entitled to. 
 {Beard v. Beard, 3 Ath. B. 72.) And yet there must be satis- 
 factory evidence that the husband has divested himself of the 
 projierty, and agreed to hold it as trustee for his wife. ( Walter v. 
 Hodge, 2 Swanst. B: 107. McLean v. Lamglavd, 5 Ves. B. 79.) Or 
 as was said by the master of the rolls in the case of McLean v. 
 Lamgland, involving the validity of a gift from the husband to his 
 wife, there must be nothing less than a clear, irrevocable gift, 
 cither to some person as a trustee, or by some clear and distinct 
 act of the husband, by which he divested himself of his property, 
 and engaged to hold it as a trustee for the separate use of his 
 wife. When the gifts are not from the husband but from strangers 
 either before or after marriage, the wife is entitled to them in her 
 own right, and the husband will be regarded as the trustee of the ' 
 wife for her separate gift, where she receives it after the marriage, 
 in case no other trustee is appointed. {Graham v. Londonderry, 3 
 Ath B. 393. Bile'!/ ^- Biley, 25 Conn. B. 154.) These cases are 
 clear of many of the questions which arise where the gift is direct 
 froni the husband. 
 
 § 358. The American authorities are quite uniform to the effect 
 that although gifts directly from husband to wife,^or from wife to 
 husband, are not good at law, yet in equity'they may be supported, 
 when they are not prejudicial to creditors, even without the inter- 
 vention of trustees. A brief reference to the spirit of some of the 
 cases will : be all that is necessary to understand the rule as it is 
 recognized by the courts of this country. 
 
 "When there was an antenuptial agreement, by which the vdfe 
 released aU her dower to arise under the marriage, on the. agree- 
 ment of the husband that she should be endowed of all laud 
 
492 . LAW OF COVERTURE. 
 
 acquired by them during the marriage, and after marriage the hus- 
 band gave his wife a deed of certain lands, parcel of his estate, for 
 the purpose of making a suitable provision for her when he should 
 leave her a widow, to be held by her during her widowhood, the 
 late court of chancery of New York held that equity would lend 
 its aid to enforce the provisions of the deed, and the conveyance 
 was declared operative. {Shepherd v. Shepherd, 7 Johns. Ch. H. 
 57.) When the husband who was about to sell his estate, agreed 
 with his wife, and with the knowledge of the purchaser, that if she 
 would join in a deed of the premises so as to release her dower, 
 she should receive a certain portion of the purchase-money as her 
 separate property, free from the control of the husband ; and the 
 purchaser gave a note to the wife for her share of the purchase- 
 money ; and the agent for the wife, in whose hands the note had 
 been placed for her use, loaned a part of the money received on the 
 note, and took a bond and mortgage directly to the wife ; and the 
 husband afterward assigned the mortgage to the Original purchaser 
 of the estate without the assent of the wife or her agent ; it was 
 held by the late court of chancery of the State of New York, that 
 in equity the bond and mortgage belonged to the wife, and that 
 she was entitled to the money due thereon, for her separate use. 
 {GarUck v. Strong, 3 Paige's Gh. B. 440.) When a husband caused 
 to be purchased certain articles of silver plate of considerable value, 
 intended as a present for his wife as expressed by him at the time, 
 and after the purchase he received the articles, and with his own 
 hand gave and delivered the same to his wife, as her own separate 
 property, and always after spoke of the same as her separate prop- 
 erty until his death, the late court of chancery of New York held 
 that the gift was perfect in equity and should be protected ; declar- 
 ing, however, that to make a gift inter vivos, valid from husband 
 to wifCj there must be a divesting of the title, and the act of giving 
 must be clearly proved, and be irrevocable. {Neufmlle v. Thom- 
 son, 3 Edw. Gh. R. 92.) In pronouncing judgment, the vice- 
 chancellor observed : " In equity, gifts to the separate use of a mar- 
 ried woman, as well those presented by the husband in his life-time 
 as those given by third persons, with or without the intervention 
 of trustees expressly named, will be protected in cases where they 
 have been made in good faith, and the rights of creditors are not 
 infringed. The case of Walter v. Hodge (2 Swanst. 97 ; S. G. 1 
 Wils. Gh. R. 445) contains all that it is necessary to refer to on the 
 
GIFTS FROM HUSBAND TO WIFE, 493 
 
 Bubjeot. It admits the proposition that, in equity, a gift by a 
 husband to his wife may, under circumstances, be valid; that 
 she may in this way acquire property to her separate use during 
 coverture, and, if necessary, this court will consider the husband a 
 trustee for her." {Ih. 93, 94.) 
 
 § 359. When a husband borrowed money of his wife which came 
 to her from a former husband, and gave her his promissory note 
 for it, it was held in the State of Ohio that the note was good, and 
 after the death of the husband that it could be set up in equity 
 against the husband's administrator; and the court reiterated the 
 doctrine in the same case that a husband may settle a separate 
 estate upon his wife, which will be valid, except as to creditors of 
 the husband existing at the time of the settlement. {Ruber v. 
 Hvh&t, 10 Ohio It. 371, 373.) And in another case in the same 
 state, the court held that the husband may settle a separate estate 
 upon his wife, which will be good in equity without the ini:erven- 
 tion of a court of equity. ( "Wood v. WorAen^ 20 Ohio R. 618.) 
 
 When real estate was purchased by the husband, and a deed 
 taken to his wife subject to a mortgage, and the land covered by 
 the deed was sold by virtue of an execution against the husband, 
 and the purchaser got possession by an action of ejectment against 
 the wife, and subsequently the mortgage was foreclosed, and the 
 land sold for a sum more than sufficient to pay the amount of the 
 mortgage and costs of foreclosure, it was held in Pennsylvania 
 that the wife was entitled to the surplus money. (WoolstmUs 
 appeal, 61 Penn. R. 452.) And, in the same state, it was held 
 that a transfer of land directly to the wife by the husband conveys 
 nothing, though it respects the wife's interest. This, of coui'se, is 
 the rule at law, however the court might have held the rule to be 
 in equity. {Pa/rJcer v. Stuekert, 2 Miles^ R. 278.) 
 
 When a leasehold estate was conveyed to husband and wife, and 
 the reversion was subsequently sold to the husband alone, it was 
 held, in the State of Maryland, that the deed to the husband, 
 at common law, extinguished the leasehold interest. (Lomea v. 
 ImmpUn, 18 Md. R. 334.) 
 
 When the husband, for a valuable consideration, mortgaged a farm 
 to his wife, and the mortgage was recorded, and afterward the 
 husband and wife joined in a deed granting the land by apt words 
 of conveyance, it was held, in Ohio, that the land went clear of all 
 equities of the wife. {Gregory v. Gregory, 16 OMo St. R. 660.) 
 
494 LAW OF COVERTTTRE. 
 
 It has been held in Pennsylvania, that a conveyance of land by 
 a father to his daughter and her husband, which was intended as 
 an advancement or gift to the daughter, vests no estate in the hus- 
 band except as a trustee for his wife. {Bomcord v. Kuhn, 36 Penn. 
 B. 383.) And in the same state it was held, that when a husband 
 and wife convey the wife's land and take a mortgage to them 
 jointly to secure the purchase-money, the husband has no legal 
 right to release the mortgage without consideration. {Trimble v. 
 Reis, 37 Fenn. E. 448.) 
 
 § 360. It has been held by the supreme court of the United 
 States, that the. income or profit arising to the wife from post- 
 nuptial settlements, follows the nature of the principal estates, and 
 cannot be taken by the husband or his creditors, but belongs to the 
 wife, and is subject to the control and disposition of the vrife. That 
 it is her separate property, and when invested by her will be pro- 
 tected for, her use ; and into whosesoever hands it comes, it is clothed 
 with the trust for her, and not for her husband, even when no 
 trustees are expressly providied for. {Picquei v. Swan, 4 Mason's 
 JR. 443.) 
 
 It has been held in the State of Louisiana, that a donation of a 
 sum of money at a future time, by a marriage contract, does not 
 require a delivery, neither is it necessary that it should be in the 
 form of a testament, to render it valid. ( Wood v. Stokes, 13 La. 
 An. R. 143.) 
 
 It has been held in Ohio, that when a husband carries on busi- 
 ness in the name of his wife and with her means, and makes profits 
 by his personal services, and no bargain was made between them 
 concerning the business and the profits arising therefrom, the wife, 
 in equity, is a preferred creditor of her husband to get her own 
 means out of the concern and the legal interest on it, and that the 
 balance must go to the creditors of the husband. {Glidden v. Tay- 
 lor, 16 Ohio St. a. 609.) But the contrary doctrine has been held 
 in the State of Vermont, where it was decided in such a case that 
 the creditors of the husband could take nothing on account of the 
 business or the profits thereof ( Webster v. Hild/reth, 33 Yt. R. 457.) 
 
 § 361. In respect to gifts or grants of property by a husband to his 
 wife after marriage. Judge Story says : " They are ordinarily, but 
 not universally, void at law. But courts of equity will uphold 
 them in many cases where they would be void at law ; although,, in 
 other cases, the rule of law will be recognized and enforced. * * * 
 
WIFE AS SOLE TRADER. 495 
 
 If the nature and circumstances of the gift or grant, whether it be 
 express or implied, are such that there is no ground to suspect 
 fraud, but it amounts only to a reasonable provision for the wife, 
 it will, even though made after coverture, be sustained in equity. 
 * * * It is true that courts of equity will require clear and 
 incontrovertible evidence to establish such gifts, as a matter of 
 intention and fact; but when that is established, full effect will be 
 given to them." (2 Bt<yry''s Eq. Jur. §§ 174, 175.) 
 
 Other authorities may be referred to and consulted wherein the 
 doctrine is fully recognized that, although gifts directly from the 
 husband to the wife are not good at law, that in equity they 
 may be supported. {Vide Duffy v. T/ie Ins. Co. 8 Watis ds 
 Serg. E. 413. Gihson v. Todd, 1 Brnde's B. 452. Serr's a^eal, 
 6 Lmo a. 408. Imingston v. Imvngston, 2 Johns. Oh. R. 537; 
 BraMsh v. GiJibs, 3 *5. 623. Elms v. Sughss, 3 Dessau. Ch. B. 
 158. Bulla/rd v. Briggs, 7 Pich. B. 533. Towers v. Hayne, 3 
 Wharton^ s B. 48.) An insolvent husband cannot give property to 
 his wife ; but it has been held that, although he cannot do that, he 
 may give to her his personal services, and her separate estate will 
 not in such a case be made chargeable to her husband's creditors. 
 {Hoot V. Sorell, 11 Ala. B. 386.) 
 
 It was held in TexaSy that a husband may settle his.property on 
 his wife and family, when he can do so without impairing the 
 rights of existing creditors. {Reynolds v. Lansford, 16 Tex. B. 
 286.) And in Maiue the court decided that a husband may 
 transfer his creditor's promissory note to his wife, unless it be done 
 for an inadequate consideration, and with intent to defraud existing 
 creditors. {Motley v. Sawyer, 38 Maine B. 68. Tide also Barron 
 V. Barron, 24 Vt. B. 399. George v. Spencer, 2 Md. Ch. Dec. 
 353. Meeds v. Meeds, 21 Eig. L. am.d Eq. B. 556. Demvng v. 
 Willia7m,1^ Conn. B. 226. Wells v. Treadwell, 28 Miss. B. 717.) 
 
 A contract by the husband to pay the wife money had by him 
 from her has been held in Pennsylvania to be void for want of 
 parties. {Johnston v. Johnston, 1 Grant^s Cases, 468. S. C. 31 
 Pmn. B. 450.) 
 
 § 362. With respect to the right of the wife to carry on trade on 
 her sole account, Judge Story says that such right may be estab- 
 lished by an agreement between the husband and wife before or 
 after marriage. "When such agreement is entered into before 
 marriage, it stands upon a valuable consideration ; and, therefore, 
 
496 LAW OF COVERTXmH. 
 
 if there is the interposition of trustees, it will be maintained 
 against the husband and his creditors, as well at law as in equity. 
 * * * Even if no trustees are interposed, the property will, in 
 the like case, be protected in equity against the claims of the hus- 
 band and his creditors, and excepted out of the general rules 
 which govern in cases of husband and wife. 
 
 " When the agreement for a separate trade by the wife occurs after 
 marriage, and it is founded upon a valuable consideration, the like 
 protection wiU be given at law, if the property is vested in trus- 
 tees ; and the property, and the income and profits thereof, will be 
 held secure for the wife against the husband and his creditors. A 
 fortiori, the doctrine will be enforced in equity. . But if it is a 
 voluntary agreement, it will be good against the husband only, and 
 not against his creditors. Care, however, must be taken in all 
 these cases, that the negotiations are not carried on in the name of 
 the wife, as by taking notes and other securities in her name, for 
 then they will, at law, be held to belong to the husband, although 
 in equity it will be otherwise. 
 
 " We here -perceive that the law will give effect to such agree- 
 ments only when those forms have been observed, which will vest 
 the property in parties capable of enforcing the proper rights of 
 the wife in legal tribunals ; as is the case when the property is 
 vested in trustees for her sole use and benefit, in order to enable 
 her to carry on trade. But courts of equity will go further : and 
 if there is any such agreement before marriage, resting in articles 
 and without trustees, by which she is to be permitted to carry on 
 business on her sole and separate account ; or if, without any such 
 antenuptial agreement, the husband should permit her, after mar- 
 riage, to carry on business on her sole and separate account ; all 
 that she earns in trade will be deemed to be her separate property, 
 and disposable by her as such, subject, however, to the- claims of 
 third persons properly affecting it. In the former case, the earnings 
 will, in equity, be supported for her separate use against her hus- 
 band and his creditors ; in the latter, against him only, unless the 
 permission after marriage arises from a valuable consideration. So, 
 if a husband should desert his wife, and she should be enabled, by 
 the aid of her friends, to carry on a separate trade, as that of a 
 milliner, her earnings in such trade will be enforced in equity 
 against the claims of her husband." (2 Story's Eq. Jur. §§ 1385, 
 1386, 1387.) 
 
THE wife's convetance. 497 
 
 § 363. It may be well to note that when the wife carries on 
 trade under an agreement made before marriage, and the property 
 is vested in trustees, the husband would not be liable to the pay- 
 ment of the debts relative to such trade, even at law. But if no 
 trustees intervened, and the agreement was after marriage, then 
 the husband would be liable at law for the debts contracted on 
 account of the business. At least, he would be liable unless a 
 credit was exclusively given to the wife in relation to the trade, or 
 the trade had been carried on without his sanction or permission. 
 If, however, he should be liable at law, a court of equity would 
 relieve him, at least to the extent of making the funds in the 
 trade applicable to the payment of the debts. (2 Story's Eg^. Jur. 
 § 138Y, note 3.) 
 
 It has been held in the State of New York, that, independent 
 of a statute allowing married women to take, hold and dispose of 
 property, and carry on a trade as if they were single and unmar- 
 ried, personal property purchased by a married woman, with the 
 knowledge of her husband, and used by the wife in keeping a 
 boarding-house, as a mod^of supporting the family, Jielongs to the 
 husband, and that he is liable for its price to the vendor, although 
 it was bought in the name of the wife, and the boarding-house was 
 conducted by her ; and, further, that the husband is entitled to the 
 profits of any business conducted by his wife,; and is liable for 
 articles bought with his knowledge and assent for the purpose of 
 prosecuting it. {Swifser v. Valentine, 4 Duer^s H. 96.) 
 
 And again, when a married woman, living and cohabiting with 
 her husband, purchased goods upon credit and moved them to her 
 residence, where she carried on the milKnery business in her own 
 name, it was held that the goods became vested in the husband at 
 the moment of the purchase, and he was respdnsiblefor the pay- 
 ment of them. It was admitted, however, that, in equity, the wife 
 is allowed, through the medium of a trustise, to enjoy' property as 
 freely as a fem.&'Sole. {Lovett v. Sobmson, 7 How. Pr. R. 105, 
 106.) And once again, it was held that when a feme-covert pur- 
 chases property on her personal credit, the title becomes vested in 
 her husband, and the property is liable to be taken on execution 
 for his debts. {Qlann v. Younglove, 27 Bari. R. 480.) 
 
 § 364. The deed of Afeme-coveH, without her husband joins with 
 her in it, is voidable by her heirs or any of them ; and if fraud be 
 practiced on the husband to procure himto join in the deed, it is the 
 63 
 
498 LAW OF COVERTTTRE. 
 
 « 
 
 same as to him and his heirs as if he had not joined in the execu- 
 tion of the deed at all. ( Underwood v. Warner, 3 Phila. R. 414.) 
 
 A fraudulent conveyance from a husband to his wife, through 
 the medium of a third person, of the life estate of the husband in 
 liis wife's lands, will not prevent the creditors of the husband 
 levying on the crops growing upon such land. {Stehman v. Miiber, 
 21 Penn. B. 260.) 
 
 When the wife's separate property is lost or destroyed by reason 
 of the. wrongful act of a third party, or by such wrongful act, the 
 property is made subject to the creditors of the husband, the wife 
 may have an action against the wrong-doer for the value of the 
 property Ipst or destroyed. {Pi&rson v. Smith, 9 Ohio St. H. 554.) 
 
 A wife who joins with her husband in a mortgage of her hus- 
 band's land, may redeem the land after his death ; and a suit in 
 equity to foreclose such mortgage to which she is not a party is no 
 bar of her equity of redemption. Process served on the husband 
 alone, does not in the least affect the wife, and she is not bound by 
 the judgment entered upon it. {McArthur v. FranTdin, 15 Ohio 
 St. B. 485.) 
 
 A husband can recover on a covenant made between himself and 
 others for the purpose of defrauding his wife out of her interest in 
 real estate owned iy him, on the principle that obligors in a 
 fraudulent bond cannot shield themselves from liability by alleging 
 their own fraud. {Evans v. Dravo, 24 Penn. B. 62.) 
 
 In an action of ejectment against husband and wife by one who 
 pm'chased land at a sheriff's sale on a judgment against the hus- 
 band, it is competent for the plaintiff to prove that the wife, who 
 now claims the land, used admissions of her vendor to show title 
 in her husband, upon the trial of a former ejectment brought 
 against herself and husband by the representative of such vendor. 
 (J7'int&' V. Walt&r, 37 Penn. B. 160.) 
 
 § 365.. With respect to the manner or capacity in which husband 
 and wife hold real property conveyed to them jointly, the rule is 
 not uniform in all the states, and it is sometimes the subject of 
 statute. At common law, if an estate in fee be given to a man 
 and his wife, they are neither joint tenants nor tenants in common ; 
 for husband and wife being considered as one person in law, they 
 cannot take the estate by moieties, but both are seised of the 
 entirety, per tout, ei non per my ; that is, " by the whole, and not 
 by a part ;" the consequence of which is, that neither the husband 
 
GRANTS TO BUSBAND AND WIFE. 499 
 
 nor the wife can dispose of any part -nlthout the assent of the 
 other, but the whole must remain to the survivor. The whole 
 estate belongs to the wife as well as the husband, and hence neither 
 alone can forfeit or alien the property, (2 Black. Com. 182.) And 
 if a grant is made of a joint estate to husband and wife and a 
 third person, the husband and wife will have one moiety, and the 
 third person the other moiety, in the same manner as if it had 
 been granted only to two persons. 
 
 So if the grant is to husband and wife and two others, the hus- 
 band and wife take one-third in joint tenancy. In all these cases 
 the husband and wife are counted as one person and take the 
 interest of one person. {Litt. % 291.) But when an estate is con- 
 veyed to a man and a woman, who are not married together, and 
 who afterward intermarry, as they took originally by moieties, 
 they vrili continue to hold by moieties after the marriage. {Moody 
 V. Moody, Ambler's R. 649. 1 Inst. 187 J.) 
 
 § 366. The rule of the common law upon the subject of grants 
 and conveyances to husband and wife jointly, is founded upon the 
 principle of the imity existing between them in legal contempla- 
 tion, and is the only rule that can be adopted which will preserve 
 the symmetry of the law of husband and wife. The rule is, how- 
 ever, changed by statute, in some of the states, although it is 
 usually recognised where no statute to the contrary exists. This 
 rule is the settled law of the State of New York. It has been held 
 by the court of appeals of that state that, when land is conveyed 
 to husband and wife, they do not take as joint tenants or as tenants 
 iit common ; for, being considered as one person in law, they can- 
 not take by moieties, but both are seised of the entirety, and 
 neither of them can dispose of any part without the assent of the 
 other, and the whole goes to the survivor. {Torrey v. Torrey, 14 
 iT. T. B. 430. Wright v. Sadler, 20 *5. 320.) This, it wiU be 
 observed, is in exact accordance with the common law doctrine 
 upon the subject. 
 
 The supreme court of the State' of New York, has also recogni- 
 zed the same doctrine, and in similar language. That court laid 
 down the rule, that a deed to a husband and wife and to six 
 children, naming them, and to such other children of the marriage 
 as might be subsequently born', creates a tenancy in common 
 between the husband and wife and the children, the husband and 
 wife, being considered in law but as one person, take while there 
 
500 LAW OP COVERTURE. 
 
 are six children, one-sewnih of the estate granted, and when two 
 more children are born, take only one-ninth of the estate. And 
 that, as between^ themselves, the husband and wife hold neither 
 as joint tenants or as tenants in common — each is seised of the 
 entirety per tout et non per rm/, and for that reason the husband 
 alone cannot al/kn the estate ; biit having the absolute control of 
 the estate dwivng Ms life, he may convey or mortgage it during 
 that period. {Barler v. R(wris, 15 Wend. E. 615. Vide also 
 Jackson v. Stevens,lQ: JohnSi _E, no. Doe v. Howland, 8 Cow. E. 
 277. Jackson v. Suffem, 19 Wend. E. 175.) And precisely the 
 same doctrine was frequently enunciated by the late court of 
 chancery of that state. ( Vide Dickenson v. -Codewise, 1 Samd. Gh. 
 E. 214. Dias v. Glover, Soff. Oh. E. 71. Eogers v. Beiison, 5 
 Johns. Oh. E. 431.) Though it was held that a grant to a husband 
 and wife is to have just such effect, in respect to the estate which 
 they take, as was intended to be created. The deed purported to 
 convey the property in distinct moieties, the one equal half part to 
 each, and provided that neither should sell or incumber his or her half 
 without the consent of the other, but to have power to devise it, in 
 which case the survivor should nevertheless have the rents and 
 profits of the whole for life, and that, in default of a will, the sur- 
 vivor should take the moiety of the decedent ; the court held, that 
 they took as tenants in common, and subject to the provisions of 
 the deed. (Sicks v. Gochan, 4 Mw. Oh. E. 107.) 
 
 § 367. The common law rule upon the subject also prevails in 
 the State of Massachusetts. There the legislature passed a statute 
 at an early day, which, after reciting that joint tenancies are often 
 created by grantors and devisors against their intentions, through 
 ignorance of the proper terms to create tenancies in common, 
 which are more beneficial to the commonwealth, and consonant to 
 the genius of republics, enacted that all conveyances and devises 
 made to two or more persons, shall be adjudged' to be tenancies 
 in common, unless it manifestly appears to have been the intent 
 of the parties to the instrument that joint tenancies were intended. 
 It has been held that this provision does not apply to conveyances 
 to husband and wife, as they are in law but one person, and the 
 survivor will take the whble estate. In giving the opinion of 
 the court, Chief Justice Parsons said: "Joint tenancies, when the 
 tenants are not man and wife, may be severed, and the right of 
 survivorship be defeated at the will of either tenant, either by par- 
 
eSANTS TO HUSBAND AWO WIFE. 501 
 
 tition or by alienation of his projperty, which shall be holden by the 
 purchaser as a tenant in common. For two joint tenants generally 
 hold by inoieties, and not by entireties. As, therefore, a joint 
 tenancy of this nature may be destroyed ait the pleasure of either 
 tenant, the statute very reasonably presumes that such tenancy was 
 not intended in the conveyance, and has;enacted that, unless a joint 
 tenancy appear to be intended, the estate shall be holden in com- 
 mon. But this construction of the statute cannot reasonably be 
 extended to a conveyance to husband and wife; Here a severance 
 of the tenancy cannot be had at the wUi either of the husband or 
 the wife. They do not take by moieties, but by entireties ; and the 
 alienation of the husband of a moiety will not defeat the wife's 
 title to that moiety, if she survive him. The statute speaks of 
 conveyances to two or more persons ; but a conveyance to husband 
 and wife is, in legal construction, a conveyance but to one person. 
 For if an estate be conveyed expressly in joint teiiancy to a hus- 
 band and wife and to a stranger, the latter shall take one moiety, 
 and the husband and wife, as one person, shall take the other 
 moiety." {Shaw v. Hursey, 5 Mass. E. 521, 522, 523. Vide also 
 Dutch V. Mannmg, 2 Dane's Abr. 230.) And in other cases, 
 although it is said that when the conveyance is to husband and 
 wife, they are joint tenants, it is held that no conveyance by one 
 can bind the other, and that the survivor will take the whole 
 estate. {Yide Fox v. Fletcher, 8 Mass. JR. 274. Vaa-num v. 
 Alhott, 12 ih. 479.) 
 
 § 368. So also the common law doctrine on the subject stiU 
 obtains in many other of the United States. Thus in the State 
 of ISew Jersey it was held that a conveyance of lands to husband 
 and wife, made after their intermarriage, does not, strictly speak- 
 ing, create them joint tenants, but creates a peculiar estate, of 
 which they are seised not per Twy etper tout, as joint tenants would 
 be, but solely and simply jpe?" tout. But that a conveyance of land 
 to husband and wife, and to Ms heirs and assigns, vests in the wife 
 a life estate, and in the husband a fee simple, in all the land con- 
 veyed. (^Deer v. Hardenbergh, 5 Halst. B. 42.) 
 
 In the State of North Carolina, if lands are conveyed to hus- 
 band and wife, they each have an entirety, and the survivor takes 
 the whole estate, notwithstanding the act of 1784, section two. 
 {Motley V. Whitemore, 2 Dev. <& Bat. B. 537. Needham^.Brcm- 
 son, 5 Ired. B. 426.) ' . \ 
 
502 LAW OF COVERTXTRE. 
 
 In the State of Kentucky, it has been held that the statute 
 aholishing the jits aocrescendi does not apply to the estate of hus- 
 band and wife. {Hoss v. Garrison, 1 Dana's B. 35.) And again 
 it is expressly declared that an estate conyeyed to husband and 
 wife is not a joint tenancy, but each takes the entirety, and neither 
 can alienate or forfeit it ; and on the death of one the other is 
 entitled to the whole. {Eoss t. Oarrison, supra. Vide also 
 Sogers v. Grider, 1 Dana^s B. 243.) But the statute of that state 
 now provides that " when any real estate is conveyed or devised 
 to husband and wife, unless a right by survivorship is expressly 
 provided for, there shaU be no mutual right to the entirety by sur- 
 vivorship between them ; but they shall take as tenants in common, 
 and the respective moieties be subject to curtesy or dower, with all 
 other incidents to such a tenancy." (2 Bev. Stat. ch. 47, § 14.) 
 This, it will be observed, is very clearly a modification of the 
 common law rule upon the subject. And in the State of Ohio, it 
 is held that when an equitable estate is conveyed to husband and 
 wife, they hold as tenants in common; and the husband may, 
 during the life of the wife, convey a moiety of such estate. Upon 
 the wife's death, the husband surviving, he does not take the whole 
 by survivorship, but her moiety descends to her heirs. So, if the 
 husband die first, the wife does not take by survivorship, but a 
 moiety descends to his heirs. ( Wilson v. Fleming, 13 Ohio B. 
 68.) Or, according to the declaration in one case in Ohio, no 
 joint tenancy exists between husband and wife, and the doctrine 
 of survivorship is unknown. They take as tenants in common. 
 {Sergeant v. Steinherger, 2 Ohio B. 305.) 
 
 In the State of Wisconsin, by a grant to husband and wife, they 
 take as one person, not by moieties, and the wife surviving takes 
 the estate discharged of the husband's debts, as well by the 
 territorial statutes as by the common law ; in other words, the 
 common law rule upon the subject is recognized in all its force 
 and incidents. {Ketoham v. Walsworth, 5 Wis. B. 95.) 
 
 In Connecticut, husband and wife ai-e declared to be joint 
 tenants, and the husband may convey his interest ; so held where 
 the estate was a term of years. (Whittlesey v. Fuller, 11 Conn. 
 B. 337.) 
 
 In the State of Pennsylvania the common law rule applies ; and 
 it is held that husband and wife are both seised of the entirety, 
 though the conveyance in terms is, to them as " tenants in common 
 
GRANTS TO HUSBAND AND WIFE. 503 
 
 and not as joint tenants." {Stuckey v. Keefe^s JSkecutor, 26 
 Penn. E. 397. Vide also FairoMld v. Ohistallecmx, 1 Pemi. 
 R. 176.) 
 
 In the State of Maine it has been held in so many words that 
 husband and wife are regarded in law as one person, and that when 
 land is conveyed to them jointly, they are not seised of moieties, 
 but of the entirety of the estate, and the survivor takes the whole. 
 {Harding v. Springer, 2 Shepley's E. 407.) 
 
 In the State of Yermont the same doctrine is held, and in one 
 case the court declared that husband and wife each has an entirety 
 of interest with the right of survivorship, so that neither can con- 
 vey any part of the estate without the consent of the other, and* 
 that on the death of the husband, the whole estate in the land so 
 conveyed vests in the wife ; and, if the creditors of the husband 
 have levied upon the land in his life-time as his property, the 
 widow may recover it fi'om them in an .action of ejectment. 
 {Brownson v. SvU, 16 Yt. E. 309.) The common law rule upon 
 the subject is also recognized in the State of Tennessee. {Taul v. 
 Campbell, 7 Yerg. E. 319.) 
 
 § 369. Upon the subject of conveyances to husband and wife, 
 Mr. Cord states the doctrine, as gathered principally from cases 
 decided in Kentucky, substantially as follows: "The unity of 
 person subsisting between man and wife in legal contemplation 
 permits their receiving separate interests in an estate conveyed to 
 them during coverture. The estate of joint tenants is an unit, 
 made up of divisible parts, subsisting in different natural persons ; 
 the estate of husband and wife is an unit not made up in any 
 divisible parts, subsisting in different natural persons, but is an 
 indivisible whole, vested in two persons who are actually distinct, 
 yet who, according to legal intendment, are one and the same. 
 On the death of husband or wife, the survivor takes no new estate 
 or interest ; nothing that was not in him or her before. It is a 
 mere change in the properties of the legal person holding, not 
 of the estate holder, and by the loss of an adjunct, reducing the 
 legal personage to an individuality identical with the natural one. 
 Not so, however, with regard to joint tenants. On the death of 
 one a new interest, or additional estate, does accrue to the survivor 
 by the jus accrescend/i. The distinction between joint tenants and 
 husband and wife holding by conveyance to them during cover- 
 tare, is, therefore, not merely ideal and arbitrary, but is founded 
 
504 LAW OF COVEBTTTRE. 
 
 in a substantial difference." {OorcPs Bights of Married Women, 
 §§ 109, 110, citing Boss v. Oa/rrison, 1 DamCs B. 37, cmd Bogers 
 V. Grindsr, Ih. 243.) 
 
 § 370. It remains now to state briefly the method by which the 
 real estate of a feme-eovert may be disposed of and transfen-ed 
 during coverture. By the common law, the only way by which a 
 married woman could pass her real estate was by a fine, or a com- 
 mon recovery, for the reason that her conveyance, exciept by some 
 matter of record, was absolutely void. She could levy a fine with- 
 out her husband, which would be good as against her and her heirs, 
 but the husband could avoid it dulring coverture, for the benefit of 
 •the wife as well as himself. (2 Zenfs Com. 151.) But the substi- 
 tute of a deed for a conveyance by fine has generally prevailed 
 throughout the United States, as the more simple, cheap and con- 
 venient mode of conveyance. And in England, fines and recoveries 
 have been abolished by statute, and the wife's real estate is now 
 transferred by the deed of the wife with the husband's concur- 
 rence, and in special cases, without the concurrence of the husband, 
 provided that her deed in all cases be acknowledged by her before 
 a competent officer, on a "private examination, apart from the hus- 
 band. (3 cmd4:WilUam IV, ch. 74.) Chancellor Kent says that 
 upon the view of our American law on the subject, we may con- 
 clude the general rule to be, that the wife may convey by deed ; 
 that she must be privately examined ; that the husband must show 
 his concurrence to the wife's conveyance by becoming a party to 
 the deed ; and that the cases in which her deed without such con- 
 currence is valid, are tb be considered as exceptions to the general 
 rule ; and, further, he says the weight of authority would seem to 
 be in favor of the existence of a general rule of law, that the hus- 
 band must be a party to the conveyance or release of the wife. 
 Such a rule, he adds, is founded on sound principles arising from 
 the relation of husband and vrife. (2 Kenfs Com. l52, 154.) 
 
 The method of the wife's aclmowledgment of her deed, and the 
 form of the certificate of acknowledgment to be indorsed by the 
 officer taking it upon the conveyance, are prescribed by statute, 
 and are similar in all the states. It is generally required that as 
 to the conveyance of a,feme-oovert, the officer must certify that, on 
 an examination apart from her husband, she acknowledged that she 
 executed the deed freely, and without any fear or compulsion of her 
 husband. 
 
GRANT OF WIFE'S LAND. 506 
 
 A married woman lias no capacity to contract for the sale of her 
 land or to convey it, except in the precise statutory mode. This 
 is the rule at law, and equity follows the law, however meritorious 
 the consideration. Equity will not aid defects which are of the 
 essence of the power, nor supply any circumstance for want of which 
 the legislature has declared the instrument void. {GUdden v. 
 Strupler, 6 Am. Lcm. Beg. \N. /S.] 635, 636. 8. O. 52 Penn. B.) 
 
 § 371. It may be convenient to note the substance: of a few of 
 the authorities upon this subject, giving the rule in several of the 
 states. 
 
 The rule of the English common law,, which disabled a feme- 
 covert from conveying her real estate in any other manner than by « 
 fine or common recovery, was never in force in the State of New 
 York, when it was a colony,, or since. At least, it is held, that no 
 such law has existed in that state since the colonial act of May 6, 
 1691, was rejected by the crown in 1697. {Merriam v. Ha/raon, 2 
 Barb. Ch. B. 232.) 
 
 The statute of New York requires that the ofiicer taking the 
 acknowledgment of a conveyance of real estaiie, shall know, or have 
 satisfactory evidence that the person making the acknowledgment 
 is the individual described in and who executed the conveyance ; 
 and in case of a maiTied woman, in addition to these requisites, 
 she must acknowledge on a private examination, apart from her 
 husband, that she executed the conveyance freely, and without any 
 fear or compulsion of her husband. (1 B. 8. part 2, ch. 3, §§ 9, 
 10. • 1 8tat at Large, 709.) And it has been held that a married 
 woman's deed is of no force until acknowledged by her, and that 
 her acknowledgment does not relate back to her execution of it. 
 {Jackson v. Stevens, 16 Johrjus. B. 110. Jackson v. Cairns, 20 ib. 
 301.) And if she freely acknowledge the deed after her husband's 
 death, it becomes operative only from the time of such acknowledg- 
 ment. {Doe V. Howlam.d, 8 Cow. B. 277.) Her deed not 
 acknowledged is a nullity. {Oillett v. 8tamley, 1 JSilVs B. 121. 
 Van NostramA v. Wright, Lalor's B. 260. Curtiss v. Folleit, 15 
 Ba/rh. B. 337.) 
 
 A feme-covert executed, by her maiden name, a conveyance of 
 her land, bearing a date before her marriage, and it was proved and 
 recorded, but the court held the deed void, because it was not 
 acknowledged by her in statute form, and because her husband was 
 not a party to it. {Galliano v. Lan^, 2 Sand. Oh. B. 147.) But 
 64 
 
506 LAW OF COVERTURE. 
 
 subsequently it was doubted whether, in New Tork, the husband 
 must join the wife in the conveyance of her estate, to give it 
 validity. Parker, J., delivering the opinion of the court, said : 
 " At common law a feme-covert could convey her real estate in no 
 other way except by fine or a common recovery. Yet such has 
 not been the law in this state; for although fines and common 
 recoveries were not abolished here by statute till 1830 (2 H. S. 343, 
 § 24) it had always previously been the practice for a married woman 
 to convey by deed. Under the government of the colony df New 
 Tork, & feme-covert conveyed by deed, upon the usual acknowledg- 
 ment before a competent officer ; and by the act of February 16, 
 1771, such previous conveyances were confirmed, and as to future 
 conveyances it was enacted that no estate of a feme-covert should 
 thenceforth pass by deed, without a previous acknowledgment 
 made by her, apart from her husband, and on a private examina- 
 tion, that she executed the same freely and without any fear or 
 compulsion of her husband. {See Colonial Acts, 3 R. 8. 22.) This 
 act prescribing the form in which the deed of a feme-covert should 
 be acknowledged, has been substantially continued to the present 
 time by the act of February 26, 1788. (2 Oreenleafs Laws, 99, 
 § 3) April 12, 1813 (1 B. L. 369) and by the present statute in 
 force when this mortgage was executed. (1 It. 8. 758.) It was 
 said by Justice Bronson, in Bool v. Mix (17 Wend. 128), it seems 
 to have been assumed that we had not adopted the common law 
 riile, and that a deed of a feme-covert was effectual to pass her 
 interest in lands. 
 
 " It has never been judicially settled in this state whether a hus- 
 band must join the wife in a conveyance to give it validity. It 
 seems to have been taken for granted by Chief Justice Spencer, in 
 Jachson v. Vanderheyden (17 Johns. R. 167), and by Justice Bron- 
 son, in Oillett v. Stanley (1 HiWs R. 125) that such was the rule. 
 But in neither of these cases was the question presented for 
 adjudication. It is said by Chancellor Kent, in 2 Kent's Com. 
 153, that the question is still undetermined in this State." {The 
 Firemen's Insurcmce Company of Albany v. Bay, i Bari. R. 407, 
 411, 412, 413.) The better opinion is decidedly in favor of the 
 rule that the deed of a feme-covert, properly acknowledged, is 
 valid although the husband does not join with her in it. {The 
 Albany Fire Insurance Company v. Bay, 4 N". T. R. 9, 14, 19.) 
 This being a decision of the court of appeals, the question may be 
 
GRANT OF wife's LAND. 507 
 
 considered settled in the State of New York, although two of the 
 seven judges who sat in the case dissented from that view, and 
 held that the concurrence of the husband in the wife's deed was 
 necessary in ordinary cases in order to make it effectual and valid. 
 The rule is different in some of the other states, as will appear 
 hereafter. 
 
 But however the rule may be at law, it seems that a f&me-covert 
 in equity may sell and transfer her separate estate by deed, and 
 her husband's execution of it is not necessary, though he is named 
 in it as a party. With regard to her separate property, which is 
 that in which the husband has no interest, and over which he has 
 no control, a feme-covert is to be regarded in equity as a feme-sole. 
 {Fo^oell V. Murray, 2 Mw. Ch. B. 636. Affirmed, 10 Paige's Oh. 
 H. 256. The FiremerCs Insurance Com/pcmy of Albany v. Say, 
 i Barh. JR. 407.) It is held, even, in regard to her separate estate, a 
 married woman may dispose of it without the solemnity of an 
 acknowledgment or private examination. Such disposition is in the 
 nature of an appointment. {The Albamy Fire Insurance Company 
 V. Bay, 4 JST. Y. B. 9.) 
 
 § 372. The law upon the subject is the same as in New York in 
 many, of the states, while the rule is different in others. By the 
 customary and ancient law of Rhode Island, a feme-covert may 
 pass her real estate by a deed in which her husband is joined, 
 which is duly executed and acknowledged. {Manchester v. Hough, 
 5 Mason's B. 67.) 
 
 In Massachusetts a feme-oovert may convey her estate by deed, 
 joining with her husband, as fully as the same could be conveyed 
 in England by a fine and recovery. {Dii/rant v. Bitchie, 4 Mason's 
 B. 45.) Indeed the statutes of the state give a sanction to such a 
 conveyance. But it would seem that in this state the deed of a 
 feme-covert would not be valid except the husband join in it. 
 Chief Justice Parker in one case speaks of the custom of married 
 women conveying by deed as the common law of New England, 
 and says " that the usage never extended to authorize the wife to 
 convey any interest she has in lands without her husband joining 
 in the deed of conveyance. {Fowler v. Shea/rer, 7 Mass. B. 14.) 
 And the same was laid down as the custom by Judge Story. 
 {Powell V. Monson, 3 Mason's B. 347. Hall v. Savage, 4 il. 273. 
 Manchester v. Hough, supra.) And at an earlier date Judge 
 "Wilde recognized the same doctrine in a case in which he declared 
 
508 ' LAW OF COVMBTURE. 
 
 that "the deed of & feme-cmeTt in which the husband does not 
 join is void." {Andrews v. Hooper y 13 Mass. B. 476.) If the 
 -husband make a deed of land held in. right of his wife, and she, in 
 the close of the deed, merely relinquish all her right in the land, 
 and execute the deed with, her husband, such an instrument wiU 
 not pass the estate. {Lithgow t. Kcmenagh, 9 Mass. B. 161.) 
 
 In the State of Maine, the method of transferring the real estate 
 of the wife is the same as in Massachusetts. (Rowe v. Samilton, 
 3 Greenl. B. 63. Sham v. Buss, 14 Mame B. 432. Payne v. 
 Parker, 1 Famf. B. 178.) And it 'is held in Maine that a feTue- 
 oovert cannot bind herself, by an executory contract, to convey her 
 own lands, even though her husband join with her in the obliga- 
 tion, and the same is for a valuable consideration. {Ex pa/rte 
 T/i07nas,3 Greenl. B. 5.0, £ane v. MeKean, 3 Shepley's B. 304.) 
 And as to the deed of the wife for the land, it is inefi'ectual to pass 
 the fee simple estate, though she sign, seal and acknowledge it in 
 due form, unless her husband join as a party to the conveyance. 
 {Payne v. ParJcer, svpra.) 
 
 In the State of 'S&w Hampshire, the wife's real estate is trans- 
 ferred by the joint conveyance of the husband and wife, and it is 
 necessary that they both join in the conveyance ; the wife may 
 alone, however, and in a separate deed, at a separate time, convey 
 her right of dower. {Ela v. Gmrd, ^ JST. H. B. 176.) If the hus- 
 band and wife join in a deed, and use language calculated to pass 
 all their interest, it is immaterial that they do not use the same 
 identical words in the instrument, if their legal effect is the same. 
 {Gordon v. Haywood, 2 N. H. B. 402.) And again, when a deed 
 of the wife's land purports to be the conveyance of the wife alone, 
 and contains no recital that the husband is a party, but is executed 
 by the husband and wife, it is regarded the deed of both, and 
 passes the title of both. ( Woodwa/rd v. Sea/oer, 38 Mew Hamp. 
 B. 29.) • 
 
 In the State of Yermont, the right of a married woman to con- 
 vey her lands by deed, is given by statute to convey by " deed of 
 herself and baron," and making her separate examination and 
 acknowledgment necessary, and to be certified upon the deed. 
 {Sumner v. Gonant, 10 Vt. B. 20.) 
 
 In the State of Connecticut, the husband must join with his 
 wife in the conveyance of the wife's real estate, by express provision 
 of statute. {B. S. 1866, tit. 37, ch. 1, § 26.) A conveyance may be 
 
GRANT OF WIFlPS LAND. 609 
 
 void in part, and valid in part, under this statute. {Hyde v. Mor- 
 gan, 14 Conn. B. 104.) A deed jointly executed by a feme-covert 
 ■who was a native citizen, and her husband who is an alien,; is valid 
 and good to pass the land of which she is seised in fee. ( Whiting 
 V. Stevens, 4 Conn. E. 44.) 
 
 § 373. In the State of New Jersey, by their early colony laws, 
 the wife might convey her estate by deedy provided she was pre- 
 viously and privately examined by a magistrate; but as the law 
 now stands there, her deed, without the co-operation of her hus- 
 band, is absolutely void. {Moore v. Bake, 2 Dutch. B. 574.) 
 And a feme-covert cannot bind herself or her heirs by covenant of 
 warranty. {Deer v. Crcmford, 3 Halst. B. 90.) 
 
 In Pennsylvania, the wife's lands are passed by the joint deed 
 of the husband and wife ; and the separate deed of the wife, pur- 
 porting to convey real estate belonging to her in her own right, is 
 void, whether against her or her husband, even though a full con- 
 sideration has been paid to the wife for the estate conveyed. 
 {Bichards v. McClelland, 29 Penn. B. 385.) 
 
 A deed executed by the husband and wife for the wife's lands, 
 but not delivered in her life-time, cannot be rendered effectual to 
 pass the estate, as against the heirs of the wife, by a delivery after 
 her decease. {Schoenberger v. Zooh, 34 Penn. B. 24. Same v. 
 Hackman, 37 *5. 87.) But though a wife's deed is void for defec- 
 tive acknowledgment, parol evidence may be given that she ratified 
 it after her husband's death. {Jourdan v. Jourdmi, 9 Serg. (& 
 BoAJole's B. 268.) 
 
 A husband and wife joined in a conveyance of the wife's lands 
 to trustees for certain uses, and afterward they acknowledged the 
 deed before a justice of the court of common pleas, who indorsed 
 upon the deed that the wife was examined apart from her husband, 
 and declared that she had voluntarily executed it ; it was held that 
 this was a good conveyance according to the usage in Pennsylvania. 
 {Da/oey v. Tv/rner, 1 Dall. B. 11. And vide Lloyd v. Taylor, lb. 
 17. Watson Y. Bailey, 1 £inney''s'B. 470.) 
 
 A married woman by agreement signed only by herself and 
 without an acknowledgnient, contracted to sell land, and received 
 one year's interest and a small part of the purchase-money. The 
 purchaser took possession and made improvements, with her knowl- 
 edge and encouragement. It was held that neither the principle 
 of estoppel nor compensation would prevent her recovering the 
 
510 ZAW OF COVERTURE. 
 
 land. {Glidden v. Strupler, 6 Am. Law. Reg. [N. /SI] 635, 8. C. 
 52 Penn. E) 
 
 By the laws of Maryland, z,fe7ne-Govert cannot execute a deed of 
 real property, or dispose of the same, without the consent of her 
 husband, until he has been absent seven years, and unheard from 
 in the mean time ; and the statute law is explicit that the husband 
 and wife must join in the conveyance. {Ehea v. Bheuner, 1 
 Peter's R. 109. Lawrence v. Heister, 3 Ha^. & Johns. B. 371.) 
 And the deed of a married woman will not pass her estate in Mary- 
 land, unless her acknowledgment is made according to the form 
 prescribed by statute. {Lewis v. Waters, 3 Sar. ds McHen. B. 
 430.) But if the wife gives a mortgage of lands held in trust for 
 her separate use, though it be not acknowledged as the statute 
 requires in respect to deeds of femes-covert, the deed creates a 
 specific lien, which will be enforced in equity. {Brundage v. Pom; 
 2 Gill (6 Johns. R. 1.) The act of Maryland, directing the 
 acknowledgment of the wife as grantor in a deed, is prescribed for 
 her benefit, and a literal compliance with the specified form has 
 never been required. ( Young v. The State, 7 Gill da Johns. B. 
 253.) But it has been held that a warranty in a deed of bargain 
 and sale, executed by the wife together with her husband, and 
 aclmowledged after she was privately examined according to the 
 act of the a,ssembly, will not bind the wife and her heirs. {Nichol- 
 son V. Hemsley, 3 Ua/r. & McHen. R. 409.) 
 
 In Virginia, it is laid down as the general rule, that the wife's 
 deed, to be valid, must be executed by the husband also. {Sexton 
 V. Pickervng, 3 Bamd. B. 468.) But a conveyance by a hus- 
 band will pass the entu'e interest of his wife entitled to a life estate 
 in his lands in the event of his surviving ; but if she survives him, 
 it passes only an interest during his life. {Evoms v. Kingsbury, 2 
 Band. B. 120.) The deed of a feme-covert in Virginia must be 
 acknowledged by her on a private examination apart from her 
 husband ; and any court of record in the United States is author- 
 ized to take the privy examination and acknowledgment. {Grove 
 V. Tumbro, 14 Crratt. B. 501. And vide Tody. Baylor, 4 Leigh^s 
 B. 498.) And the wife must relinquish her equitable as well as 
 legal rights separately and apart from her husband. {Comets v. 
 Girger, 1 CalVs B. 190.) A deed from a husband and wife without 
 her privy examination and relinquishment, is utterly void as to her ; 
 and furnishes no consideration to support a subsequent conveyance. 
 
GRANT OF WIPE'S LAND. 611 
 
 {Harvey v. Pedes, 1 Munf. li. 518.) But if & feme-covert be privily 
 examined, her covenant for further assurance in a deed is obligatory, 
 and a specific execution •will be decreed. {Nelson v. Harwood, 3 
 CalVs B. 384.) 
 
 § 374. In the State of North Carolina, the husband must join 
 his wife in the conveyance of her land, and the wife must be 
 separately examined before the officer. And a deed of husband 
 and wife, when the privy examination of the wife was taken before 
 the acknowledgement of both, is void. {Gilchrist v. Brioe, 1 Bev. 
 <& Batt. B. 359. Vide Davis v. Buke, 2 Eon/w. [iT. C:\ B. 401.) 
 
 In South Carolina, the wife conveys her real estate by a deed in 
 which her husband must join in order to make it effectual and 
 valid ; and the wife must be privately and separately examined, 
 and thereupon declare that she did freely, voluntarily, and without 
 any compulsion, dread or fear, of any person or persons whom- 
 soever, renounce, release, and forever relinquish unto the grantee, 
 all her interest and estate in the land conveyed. This must all be 
 certified to by the magistrate taking the acknowledgipent, and a 
 seal is necessary to be affixed to the certificate, and when such seal 
 is wanting the conveyance is null and void. {McCreary v. 
 McCreary, 9 Rich. Eg. B. 34. Vide also Brown v. Sham,d, 2 Bep. 
 Con. at. 12.) 
 
 The usage is the same in Alabama with respect to the convey- 
 ance by the wife being with the concurrence of her husband, and 
 the private examination of the wife ; although it has been held 
 that when the conveyance is for the separate estate of the wife the 
 private examination is not necessary. {Fish v. Stubbs, 30 Ala. ' 
 B. 335.) 
 
 So also the custom is substantially the same in the State of Mis- 
 sissippi, and the certificate of the magistrate must show that the 
 conveyance was signed, sealed and delivered by the wife without 
 the fear, threats, or compulsion of the husband. {Toulmin v. 
 Heidelberg, 32 Miss. B. 268.) 
 
 The real estate of the wife is passed in the same way in the 
 States of Georgia and Tennessee. In the latter state, the court 
 has no jurisdiction to inquire into the regularity of the privy 
 examination. {Gomvpbell v. Taull, 3 Yerg. B. 548. Lapeter v. 
 Turner, 1 ib. 413.) 
 
 In the State of Kentucky, the power of a feme-covert to convey 
 land by deed is given by statute, and the deed must be executed 
 
512 LAW OF COVEBTTmE. 
 
 "with all the forms required by the statute. The statute provides 
 for the privy examination of the wife, and unless this is made, the 
 deed does not bind her or her heirs. {Elliott v. Piersol, 1 Peters- 
 B. 328. Vide also Stule v. Lewis, 1 Mon. E. 49.) The privy 
 examination of the wife by the clerk out of court, is sufficient to 
 pass her title. {Pendergast v. Owathmey, 2 A. K. Marsh. P. 67.) 
 And a deed of a husband of land belonging to the wife in her own 
 right, passes his interest therein, but does not work a discontinu- 
 ance of, her estate, nor bar her right to enter upon the land after 
 his death. {Miller v. Shackelford, 3 DcmcHs R. 289.) 
 
 The wife's equity in land may be conveyed by her and her hus- 
 band during coverture, by privy examination, and recording the 
 deed in the proper office.. {Whitaher v. Plwir, 3 J. J. Ma/rsh. P. 
 241.) And it would seem that the deed of a feme-covert will pass 
 no interest in her land, except in her separate estate, unless her 
 privy acknowledgment is recorded in proper time. ( Whitaher v. 
 Blair, supra. Hepbu/rn v. Dubois, 12 Peters' P. 345.) 
 
 In the State of Indiana, the husband must be a party with the 
 wife to her conveyance in order to pass her estate. {Scott v. Pur- 
 cell, 7 BlacTcf. R. 66.) And, indeed, such is the law in most of 
 the other states not mentioned. As a general rule, where the com- 
 mon law is in force, the real estate of a feme-covert is transferred 
 by her deed, in which her husband must join. 
 
 In California, the rule is adopted by express statute, and the 
 statute must be complied with. ( Vide Barrett v. TewTcsTmry, 9 
 Cal. P. 13. KindallY. Miller, li. 6^1. SeVoon v. Commercial 
 Co. 7 il. 266.). 
 
 In the State of Ohio, the statute requires the certificate of the 
 separate examination of the wife to her deed to state that the con- 
 tents of the deed were made known to her. A power of attorney 
 executed by husband and wife, to convey real estate held by them 
 in common, is not obligatory on the wife unless acknowledged by 
 her. {Bococh v. Pamey, 8 Ohio St. R. 270.) 
 
 § 376. It may be remarked generally that in many of the states the 
 concurrence of the husband in the conveyance of the wife is made 
 necessary by statute ; but, except in the new states, these statutes 
 only enacted what had already become law by general usage, or 
 rather the usage had grown out of the requirements of the common 
 law, and hence the statntes may be deemed simply declaratory of 
 the common law. In the new states some regulation was probably 
 
GRANT OF wife's LAND. 513 
 
 deemed necessary in order to abolish the common law method of 
 conveyance by fine and recovery, and to substitute the conveyance 
 by deed. Hence most of their statutes relating to the subject are 
 in form enabling statutes — enabling married women to convey by 
 deed, but retaining in other respects all the substantial require- 
 ments of the common law method of conveyance. ( Vide tUssenting 
 opinion in Album/ JFire Insurance Comjpany v. JBay, 4 J!f. Y. 
 Ji. 33.) 
 
 In the early settlement of this country the common law mode of 
 conveying the lands of married women by fine or common recovery 
 was never adopted by the colonies, but the more simple mode of 
 conveyance by deed was used. This custom became so general at 
 an early period in the colonies, that it became a portion of the 
 general law of the land, and as firmly established as if it had been 
 expressly enacted by statute. (H.) 
 
 The deed of a feme-covert, conveying her interest in lands which 
 she owns in fee, does not pass her interest by force of its execution 
 and delivery, as in the common case of a deed by a person nnder 
 no legal incapacity. In such cases an acknowledgment gives no 
 additional efiect between the parties to the deed. It operates only 
 as to third persons under the provisions of recording and kindred 
 laws. The law presumes a feme-comert to act under the coercion 
 of her husband, unless, before a court of record, a judge, or some 
 commissioner in England, by a separate acknowledgment, out of 
 the presence of her husband, or, in the United States, before 
 some court or judicial officer authorized to take and certify such 
 acknowledgment, the contrary appears. (Hepburn v. Dubois, 12 
 PeUrs' B. 346.) 
 
 In the states generally, except "Eew York, the deed of a fetne- 
 covert is not valid unless her husband joins in the conveyance. 
 Usually the husband and wife should so join in the conveyance 
 that the husband may convey his estate therein which lasts at least 
 during the coverture, and that the wife may transfer the fee. 
 
 § 376. Upon this subject the learned annotators of Eeeve's 
 Domestic Eelations say : " The method of passing an estate by 
 fine and recovery is unknown in the laws of most if not all of the 
 United States, and it is only from analogy that it bears to the 
 forms of conveyance usually resorted to for the purpose of divesting 
 the wife of her estate during coverture, that a consideration of the 
 many English cases upon the subject of fines and recoveries becomes 
 65 
 
614 LAW OF COVSETUBE. 
 
 at all important. That a wife during coverture has power to make 
 a contract binding upon herself, is "one of the general principles of 
 the law ; but, like nearly all others, it has its exceptions. This, to 
 use a favorite expression of the author, may ' mar its symmetry,' 
 but, in general, the line is so distinctly marked to these exceptions 
 as to render them by no means intricate. Thus a wife may, by 
 deed executed with her husband and separately acknowledged, con- 
 vey her real estate so as to bind herself and her heirs ; and why ? 
 Because it would be highly inconvenient and impolitic that the 
 separate real property of the wife should ex necessitate, remain in 
 precisely the situation during the existence of coverture that the 
 marriage found it, when such change might be most beneficial to 
 the interest of the wife and all persons claiming through her. 
 Hence it is that this mode of conveyance is resorted to, as being, 
 by virtue of the separate acknowledgment, the most secure from 
 the coercion of her husband. But when the question of her 
 liability on her covenants of warranty, made during the coverture, 
 comes up, the rule of her inability to contract while a fetne-covert, 
 comes in to protect her from such covenants. It is believed that 
 the doctrine that a wife may, by deed separately acknowledged from 
 her husband, pass her interest in real estate, obtains generally 
 throughout the United States, and it is somewhat surprising that 
 a branch of the law of husband and wife, of so much importance 
 and of so frequent occurrence as this, should not have been con- 
 sidered by the learned author as worthy of more importance." 
 {lieeve^s Dom. Eel. 3d ed. 199, note 1.) And it may be affirmed 
 as a general rule, that in all of the American States, the real estate 
 of a feme-covert is transferred by the conveyance of the wife, 
 acknowledged on. a private examination, separate and apart from 
 her husband, which must be certified to by the officer taking the 
 acknowledgment. That though she may thus convey her laud, 
 she cannot bind herself or her heirs by any of the covenants con- 
 tained in her deed ; and that as to her " separate estate" she may 
 execute the conveyance without the concurrence of her husband. 
 But in all other cases, the cardinal principle of the common law is 
 recognized, that a feme-covert has no power to contract or dispose 
 of property independent of her husband. Some changes in the 
 rule may be observed when the statutes of the several states respect- 
 ing the " rights of married women," are considered. 
 
LAW OF DOWER. 515 
 
 CHAPTER XXVI. 
 
 THE LAW OF DOWEE — THE NATTTRE OF DOWEE AND ITS HISTOET — DIF- 
 FEEENT KINDS OF DOWEE — ^EEQUISITES FOE DOWEE — ^MAEEIAGE — 
 SEISm OF THE HUSBAND — ^DEATH OF THE HUSBAND — ^ISSUE NOT 
 NECESSAET. 
 
 § 3Y7. DowEE is the estate wMcbi the wife has, by operation of 
 law, in the property of her deceased husband, or, more properly, 
 the right which the widow has, in law, to enjoy, for the term of her 
 natural life, a specified portion of the lands and tenements of 
 which her husband was seised during coverture. This applies only 
 to what the law gives the wife independent of any act of the hus- 
 band, of which he has no power to deprive her. 
 
 Some have defined dower to be the provision which was made 
 by the common law for the support of the wife and the nurture of 
 the younger children. {Crili. on Dower, 363. 2 Black. Com. 130.) 
 Littleton said : " Tenant in dower is, when a man is seised of cer- 
 tain lands or tenements in fee simple, fee tail general, or as heir in 
 special tail, and takes a wife and dies, the wife, after the death of 
 her husband, shall be endowed of the third part of such lands and 
 tenements as were her husband's at any time during the coverture, 
 to have and to hold to the same wife in severalty by metes and 
 bounds, for the term of her life, whether she has issue by her hus- 
 band or not, and of what age soever the wife be, so as she be past 
 the age of nine years at the time of the death of her husband." 
 {Litt. § 36. Co. lAU. 31 a.) 
 
 It appears that by the common law the widow has one-third 
 part of the lands and tenements which were her husband's during 
 the marriage (Oray v. McCwne, 23 Perm. H. 447); but by the 
 custom in some places, she may have more or less, and in all cases 
 she is called tenant in dower. The general rule, both in England 
 and in the United States, is to allow the widow an estate for life 
 in one-third of all the lands of which the husband was seised in 
 fee during coverture, although the rule is changed or modified by 
 the statutes of some of the states. Dower is a title inchoate, and 
 not consummate until the death of the husband. 
 
 § 378. The origin of dower is involved in considerable doubt 
 and obscurity. The right of dower has been recognized by the 
 customs and laws of every civilized country from a very early age. 
 It was said in one case that " the introduction of dower into Eng- 
 
516 LAW OF COVEBTUSE. 
 
 land is of sueli antiquity that its origin cannot be traced witli any 
 degree of certainty." {Wright v. Jennings, 1 BaAley's Law B. 
 217, 278.) In another, that " it is difficult to trace the origin of 
 dower, but all -writers admit it to be of great antiquity." (Jlill v. 
 Mitchell, 5 ArJc. R. 608, 610.) And in still another case it is said 
 to be " so ancient that neither Coke nor Blackstone can trace it to 
 its origin." {Oombs v. Yornig, 4 Yerg. H. 218.) 
 
 Dower is called in Latin by the foreign jurists doarium, but 
 by Bracton and the early English wribers (ios, which among the 
 Eomans signified the marriage portion which the wife brought to 
 her husband, or the money or property given or settled on a 
 marriage. This species of dower, especially in the middle ages, 
 was often very rich. For instance, the Duke of Brabant con- 
 tracted his daughter to the Black Prince, son of Edward the Third, 
 A. D. 1339, and gave her a portion, which was reckoned in England 
 of the value of over three hundred thousand pounds sterling ; and 
 John Galeazzo Visconte, Duke of Milan, concluded a treaty of 
 marriage between his daughter and Lionel, Duke of Clarence, 
 Edward's third son, A. D. 1367, and granted him a portion equal 
 to two hundred thousand pounds sterling. From this statement, 
 some idea may be had of the wealth of the Flemish and Italian 
 commercial states in those ages. But dower in this sense bears 
 no resemblance to the term as now understood. Dower out of 
 the lands seems also to have been unknown in the early part of the 
 Saxon constitution. In the time of King Edmond, the wife was 
 directed to be supported wholly out of the personal estate. After- 
 ward the widow became entitled to a conditional estate in one- 
 half of the lands, upon condition that she remained chaste and 
 unmarried. Some have ascribed the introduction of dower into 
 England to the [Normans, as a branch of their local tenures, though 
 Blackstone did not credit that theory. He thought it possible that 
 it might be in England the relic of a Danish custom ; since, accord- 
 ing to historians, dower was introduced into Denmark by Swein, 
 the father of Canute the Great, out of gratitude to the Danish 
 ladies, who sold all their jewels to ransom him when taken prisoner 
 by the Vandals. (2 Blaoh. Com. 129.) Other writers ascribe the 
 origin of dower in England to the Germans. Chancellor Kent 
 says : " In the customs of the ancient Germans recorded by 
 Tacitus {De Mor. Oerm. c. 18), dotem non uxor marito, sed uxori 
 mcmitia qfert. In this custom we probably have the origin of the 
 
LAW OF DOWER. 517 
 
 riglit of dower, whicli was carried by tlie northern barbarians into 
 their extensive conquests ; and when a permanent interest was 
 acquired in land, the dower of the widow was extended and 
 applied to real estate, from principle and affection, and by the 
 influence of the same generosity of sentiment which first applied 
 it to chattels." (2 KemCs Com. 36, note J.) And Mr. Cruise says 
 the estate called dower "is derived from the Germans, among 
 whom it was a rule that a virgin should have no marriage portion, 
 but that the husband should allot a part of his property for her 
 use in case she survived him. * * f^ And when the Germans 
 established themselves in the southern parts of Europe, and reduced 
 their customs into writing, they fixed the portion of the husband's 
 lands which he might aUot for his wife's dower." (1 Oreenl'. 
 Cruise, 152, § 1.) 
 
 § 379. The law of dower appears to have been altered in the 
 reign of King Henry II. In that reign, according to Glanville, 
 every man was bound, both by the civil and ecclesiastical law, to 
 endow his wife at the time of his marriage, either by naming the 
 dower in particular, or by endowing her generally of all his 
 lands. If he endowed her generally, then the wife was entitled to 
 her dos rationdbiMs, which was one-third of her husband's freehold. 
 If he named a dower which amounted to more than a third, it was 
 not allowed, but was reduced to a third. Nor was the wife 
 entitled to dower out of any of her husband's subsequent acqui- 
 sitions, unless he specially engaged before the priest to endower 
 her of them. And, it is said, these regulations are exactly similar 
 to those contained in the Oromd ConsiumHer of Normandy. (1 
 Oreenl. Crvdse, 152, § 3.) 
 
 Mr. Cruise says that nothing is mentioned in King John's 
 Magna Charta, or the first charter of Henry III, respecting 
 dower ; but in the charters of 121Y and 1224, it is declared that 
 dower should consist of a third of all the lands which the husband 
 held dm-ing his life, unless the wife had been endowed of a smalleu 
 portion at the church door. (1 Oreenl. Cruise, 152, § 4.) But Mr. 
 Scribner says : " This is manifestly an error, for, as we have seen, 
 the right of dower is expressly recognized in both these charters. 
 But it is true that in neither of them is there any thing said as to 
 the extent to which the widow might be endowed, and perhaps 
 it is this omission to which that writer refers." (1 Scribner on 
 Dovier, 13.) 
 
518 LAW OF COVERTURE. 
 
 § 380. But whatever the origin of dower or the date of its intro- 
 duction into England, Blaekstone says that the reason which the 
 English law gives for adopting it is a very plain and sensible one, 
 " for the sustenance of the wife, and the nurture and education of 
 the younger children." (2 Black. Com. 130.) Sir Joseph Jekyll 
 says : " The relation of husband and wife, as it is the nearest, so it 
 is the earliest ; and, therefore, the wife is the proper object of the 
 care and kindness of the husband. The husband is bound by 
 the law of God and man to provide for her during his life; and 
 after his death the moral obligation is not at an end, but he ought 
 to take care of her provision during his own life. This is the more 
 reasonable, as, during the coverture, the wife can acquire no prop- 
 erty of her own. If before her marriage she had a real estate, 
 this, by the coverture, ceases to be hers, and the right thereto, 
 while she is married, vests in her husband. Her personal estate 
 becomes his absolutely, or at least is subject to his control ; so that, 
 unless she has a real estate of her own (which is the case of but 
 few), she may by his death be destitute of the necessaries of life, 
 unless provided for out of his estate, either by a jointure or dower. 
 As to the husband's personal estate, imless restrained by special 
 custom, which very rarely takes place, he may give it all away 
 from her. So that his real estate, if he has any, is the only plank 
 she can lay hold of to prevent her sinking under her distress. 
 Thus the wife is said to have a moral right to dower." {Banks v. 
 Sutton, 2 P. Wms. B. 702.) It has been said that the husband's 
 tenancy by the curtesy has no moral foundation, and is therefore 
 called an estate by the favor of the law ; but, as Sir Joseph Jekyll 
 well says, dower is not only a legal but also a moral right. 
 
 One writer on ancient law says that "the provision for the 
 widow was attributable to the exertions of the church, which 
 never relaxed its solicitude for the . interest of wives surviving 
 their husbands — ^winning, perhaps, one of the most arduous of its 
 triumphs, when, after exacting for two or three centuries an 
 express promise from the husband at marriage to endow his wife, 
 it at length succeeded in ingrafting the principle of dower in the 
 customary law of all western Europe. Curiously enough, the 
 dower of lands proved a more suitable institution than the analo- 
 gous and more ancient reseiwation of certain shares of the personal 
 property to the widow and children." {Mame^s Ancient Law, 224.) 
 Some of the reasons, however, which existed in the earlier ages for 
 
LAW OF DOWER. 519 
 
 the institution of dower, have disappeared under the usages and 
 refinements of modern society ; and yet the estate in dower is still 
 recognized to a greater or less extent by the laws of all Christian 
 nations, and in some of the American States the right has been 
 extended much beyond the provisions of the common law. 
 
 § 381. Anciently there were five kinds of dower, viz. : dower ad 
 ostium ecolesicB, dower by the common law, dower by the custom, 
 dower ex assensu patris, and dower de lapluis leall. 
 
 Dower ad ostium ecclesice, " at the church door," was when a 
 man of the age of twenty-one years, seised in fee simple, took his 
 intended wife to the church door to be mari'ied, and after the 
 marriage was solemnized, endowed the woman of the whole land, 
 or of the haK or other lesser part thereof, and then openly declared 
 the quantity and the certainty of the land which she should have 
 for her dower. In this case the wife, after the death of her hus-- 
 band, entered into the quantity of land of which her husband 
 endowed her without any assignment or process. [Go. Zitt. 34 a.) 
 It is said, however, that the widow could never take more than 
 one-third of the lands of which her husband was seised at the 
 time of her espousals, and the husband might endow her with less. 
 
 Dower by the common law has been stated in a previous section. 
 {Ante, § 377.) Dower by the custom is where a widow becomes 
 entitled to a certain portion of her husband's lands, in consequence 
 of some local and peculiar custom. And in cases of this kind the 
 widow cannot waive the provision thereby made for her and claim 
 dower at common law, because all customs are equally ancient 
 with the common law. {Co. lAtt. 33 5.) 
 
 Dower ex assensu patris, "with the father's consent," was when 
 the father was seised of tenements in fee, and his son and heir 
 apparent, when he was married, endowed his wife at the church 
 door of parcel of his father's lands or tenements with the assent of 
 his father, and assigned the quantity and parcels. This species of 
 dower, like that ad ostiwn ecdesim, was assigned after the marriage 
 ceremony took place, and was valid without any deed, because the 
 husband cannot make a deed to his wife ; besides, she could enter 
 after the death of her husband without any assignment, because 
 the demand of dower was certain in those cases, and no assignment 
 was necessary to fix the quantity of land to which she was entitled. 
 {Co. Zitt. 34, 35, 37.) This was greatly convenient for the wife, 
 and saved her the delays and vexations of a suit to recover her 
 
520 ZAW OF COVEBTmiE. 
 
 dower. Assignment of dower ad ostvwm ecclesiw or ex assensu 
 patris is now abolished by statute in England, and the practice 
 never prevailed in the United States. Dower de lapluia leall was 
 an incident of tenure by knight service, and the act which 
 abolished the military tenures, necessarily put an end to this title ; 
 it is, therefore, of no practical importance to consider its nature or 
 provisions. 
 
 § 382. Dower by the common law is the only one that prevails 
 in the TTnited States, and is the only species of dower which it is 
 important to consider in extenso here. This provision for the 
 widow was introduced into this country upon its first settlement, 
 and was firmly established by some of the earliest colonial acts. 
 The colony act of Massachusetts, in 1641, was the first enactment 
 this side of the Atlantic upon the subject, and that was soon fol- 
 lowed by similar statutes in Virginia, 'New York, and elsewhere ; 
 and in most of the United States, the right of the wife to her 
 dower is at present the same as provided by the common law. 
 
 There are three requisites to dower at common law; marriage, 
 seisin by the hiisband, and his death. First, then, the woman must 
 answer the description of a lawful wife, in order to entitle her to 
 this provision ; that is, she will not be entitled to dower when she. 
 has not contracted a legal marriage. What is a regular and valid 
 marriage in England and in the United States, will be considered 
 hereafter; and in this place it is sufficient to affirm that dower 
 attaches upon aU marriages not absolutely void, and existing at 
 the time of the death of the husband. It will not attach, however, 
 if the marriage was absolutely void, as in a case where the husband 
 had a former wife then living. (Smart y. Wlidley, 6 Smedes da 
 Mcersh. B. 308.) 
 
 A void marriage is at all times a nullity, while a voidable mar- 
 riage is valid for all civil purposes lintil, by the judgment of a 
 competent court, its nullity is declared. The woman must have 
 been the wife of a man who, at the time of the marriage, was of 
 sound mind, for a man of an unsound mind is incapable of con- 
 tracting marriage. Hence, if the husband was of unsound mind 
 at the time of the marri^e, dower does not attach. {Jenkins v. 
 Jenkms, 2 Bands R, 102.) A person, however, who is married 
 while a lunatic may, on being restored to reason, affirm the mar- 
 riage, by acts recognizing its validity, without any new solemniza- 
 tion ; as when the parties cohabit during the lucid interval of the 
 
LAW OF SOWEB. 521 
 
 husband, he haAdng been fully advised of the mamage, such recog- 
 nition of the marriage would undoubtedly aflBrm it, and entitle the 
 ■wife to all of the rights incident to a valid marriage. ( Vide Cole 
 V. Cole, 6 Sneed's R. 57.) 
 
 It was formerly held that the wife of an idiot might bo endowed, 
 though the husband of an idiot coiild not be tenant by the curtesy ; 
 but it is at present agreed, upon principles of sound sense and 
 reason, that an idiot cannot marry, being incapable of consenting 
 to any contract, and therofore the wife of an idiot is not, entitled 
 to dower. (2 Black. Com. 130.) 
 
 § 383. An alien widow, by the common law, is excluded from 
 dower, on account of her alienism ; and this, although she is the 
 widow of a natural born citizen. {Mick v. Mich, 10 Wend. R. 379. 
 Vide also Kelly v. Harrison, 2 Johns. Ch'. R. 29. SutUffe v. 
 Forgey, 1 Cow. R. 89. Alsberry v. Hawkim^, 9 Dana^s R. 177. 
 Conolhj V. Smith, 21 Wend. R. 59. Sistare y. Sistare, 2 Roofs S. 
 468.) Generally, however, if an alien widow become naturalized, 
 she may be endowed in all the lands of which the husband was 
 seised during coverture. {Buchamm v. Deshon, 1 Har. & GilVs 
 R. 289. Alsberry v. HomTdns, supra. Priest v. Cvmmings, 16 
 WeTid. R. 617.) The same rule is applied at common law to the 
 widows of aliens as to alien widows, with respect to their right of 
 dower. {Sewall v. Zee, 9 Mass. B. 363.) But with respect to 
 alien women, the congress of the United States, in 1855, declared 
 that any woman who might lawfully be naturalized under the 
 existing laws, married, or who shall be married to a citizen of 
 the United States, shall be deemed and taken to be a citizen of the 
 United States. (10 Stat, at La/rge, p. 604, § 2. BrighUey's Dig. 
 jp. 132, § 2. Vide Bv/rton v. Burton, 26 Ema. Pr. R. 474.) 
 It'is seen, therefore, that the rule is now uniform throughout the 
 American States that the widow of a citizeh, whether native or 
 naturalized, is entitled to dower in her husband's land, irrespective 
 of the nativity of the widow. 
 
 In those of the United States in which an alien is permitted to 
 hold lands, alienage is no impediment to the title of dower, and 
 in some of the states it is expressly provided that the alienage 
 of the wife shall not bar her title; and in England, by a special 
 act of parliament, it is provided that all women aliens who shall 
 marry by license of the crown, shall be entitled to dower in the 
 same manner as English women ; and by another statute, the rights 
 66 
 
622 LAW OF COVEBTUEE, 
 
 of natural bom subjects are extended to all women aliens married 
 to any natural born subjects or persons naturalized. (7 and 8 
 Vict. ch. 66. Co. Litt. 3 5, note 9.) ' 
 
 In the States of Arkansas, Delaware, Florida, Georgia, Illinois, 
 Kansas, Louisiana, Maine, Massacbusetts, Michigan, Minnesota, 
 New Hampshire, New Jersey, Ohio, Oregon and Wisconsin, and 
 in the District of Columbia, aliens may, by statute, take, hold, 
 transmit and convey lands in the same manner as natural born 
 citizens, and hence alienage is no impediment to dower. 
 
 In the State of Connecticut, any alien who is a resident of the 
 state, or of any of the United States, may purchase, hold, inherit 
 or transmit real estate, and the wife of any alien capable of hold- 
 ing land in the state by devise or inheritance, is entitled to dower 
 in the land of her deceased husband. ( Yide Whiting v. Stevens, 
 4 Conn. R. 44.) It would seem, therefore, that alienage, by the 
 Connecticut statute, whether of husband or wife, is no impediment 
 to the wife's dower ; and the same is substantially the statute of 
 California, 
 
 In the State of Pennsylvania, aliens may hold land to the 
 amount of five thousand acres, as fully as any natural born citizen 
 can ; and with reference to such lands, of course, the wife may be 
 endowed, but beyond that the common law doctrine probably 
 obtains. 
 
 In the States of Indiana, Texas and California, tenancies by the 
 curtesy and in dower are abolished by statute, with respect to 
 citizens as well as aliens. In California the statute provides that 
 no estate shall be allowed to the husband as tenant by the curtesy, 
 nor any estate in dower be allowed to the wife ; but instead of 
 these provisions of the common law, upon the death of either, the 
 survivor takes one-half of the common property of the deceased, 
 and if there are no descendants, the whole goes to the survivor. 
 ( Wood's Big. 486-489, §§ 1-13. And vide Beard v. Knox, 5 Cal. 
 R. 252.) And the law is substantially the same in Texas. {Old- 
 ham & Whitens Big. 313.) In Indiana the statute abolishes 
 tenancies by the curtesy and in dower ; and in case of the death of 
 the husband intestate leaving a widow, one-third of his real estate 
 descends to her in fee simple, free from all demands of creditors, 
 provided it does not exceed in value ten thousand dollars ; if it 
 exceeds that sum in value, and does not exceed twenty thou- 
 sand dollars in value, she has one-fourth ; if it exceeds twenty 
 
LAW OF DOWSB. 523 
 
 thousand dollars, then she takes one-fifth; and if his property- 
 does not exceed in value three hundred dollars, the whole goes to 
 his -widow, -whether he dies testate or intestate. In all cases the 
 ■wido-w is entitled to three hundred dollars of the deceased hus- 
 band's personal property, to be selected by her out of its appraised 
 value. In case of the death of the -wife, leaving her husband, he 
 is entitled to one-third of her real estate ; and if she dies intestate, 
 leaving a minor child or children, one-half of her real estate goes 
 to her husband, and her personal property is divided equally 
 between her surviving husband and children. In case husband or 
 wife dies intestate, leaving no child or children, and no father or 
 mother, the whole estate goes to the survivor. (1 B. 8. 1862, ch. 
 46, §§ 16, 17, 26.) 
 
 In the State of Iowa, alienage is no impediment to dower, 
 provided the parties were, at the death of the husband, residents 
 of the state ; and every married woman whose husband dies, capa- 
 ble at the time of his death of acquiring and holding an absolute 
 title to real estate, though she be an alien, is entitled to the same 
 rights of dower as if she were a resident of the state. {Yide 
 StmrvpU V. HemvingJtouser, 3 Iowa R. 408.) 
 
 In the State of Kentucky, alienage is no impediment to the 
 -wife's dower in any lands acquired by the husband while the par- 
 ties actually reside in the state, provided they continue to reside 
 in the state until the death of the husband ; otherwise the common 
 law of England relating to aliens is in force in the state. ( Yide 
 Hunt V. Wcvrwicke, Sardines R. 61. Fry v. Smith, 2 Dana's B. 
 39. Dudley v. Grayson, 6 Mon. R. 260. Steoenson v. Dunlofp, 7 
 i5. 143. Alsberry v. Homkms, 9 Dana^s R. 177. Mome v. Tis- 
 dale, 5 B. Mon. B. 352.) 
 
 In the State of Maryland, alien females intermarried with citi- 
 zens of the United States, and residing therein, become entitled to 
 dower. This is by the statute of 1813, and it has been held that 
 it is limited to residents, and does not apply to alien women who 
 have never resided in the United States during coverture. 
 {McCreery v. Albender, 4 Har. c& McHen. B. 409. McCreery 
 V. Somermlle, 9 Wheat. B. 354. Owings v. Norwood, 2 Har. cfe 
 Johns. B. 96. Buchwnam, v. Deshon, 1 Ha/r. & OilVs B. 280.) 
 
 In the State of New Tork, the wife of an alien resident dying 
 seised, and an alien woman marrying a citizen, are respectively 
 entitled to dower. {Laws of 1845, ch. 116.) Under this statute, 
 
524 LAW OF COVERTUBE. 
 
 however, it has been held that an alien widow cannot be endowed 
 of lands of her husband, who was a naturalized citizen of the 
 United States at the time of his death, when the marriage took 
 place prior to the passage of the act, when both husband and wife 
 were aliens, and the widow never having been a resident of this 
 country. {Greer v. Samikatpn, 26 How, Pr. B. 4:T1.) 
 
 In the State of South Carolina, an alien widow of a citizen of 
 the United States is entitled to dower. 
 
 In Rhode Island, when the alien is a resident within the gtate, 
 and has made declaration according to law of his intention to 
 become a naturalized citizen of the United States, the court of 
 probate has power to grant his or her pjetition to purchase, hold 
 and dispose of real estate, and then the wife is entitled to dower. 
 
 In Tennessee, any alien who is a resident of the state, and has 
 declared his intention to become a citizen in conformity to the 
 naturalization laws of congress, may hold real estate in the same 
 manner as a citizen of the United States ; and, in that case, alienage 
 is no hinderance to dower. 
 
 In the State of Yermont, any person of good moral character 
 who comes to settle in the, state, having first taken an oath or 
 affirmation of allegiance to the state, may hold real estate, in which 
 case alienage is no impediment to, dower. 
 
 In the State of North Carolina the law upon the subject is 
 substantially the same as in Vermont. 
 
 In Virginia, the law with reference to holding and enjoying real 
 estate by an ahen is about the same as in North Carolina and 
 Vermont, and hence the rule with respect to dower in connection 
 with alienage is substantially the same as in those states. 
 
 In the State of Missoui-i, all aliens residing in the United States 
 who shall have made a declaration on oath of their intention to 
 become citizen^ of the United States, and all alien residents in the 
 state are capable of holding real estate ; and, with this qualification, 
 alienage is no impediment to dower. 
 
 In the State of Alabama, alienage is a bar to the wife's right of 
 dower. {Congregational Church v. Morris, 8 Ala. B. 182. Vide 
 Mheridge v. Mahmpre, 18 ii. 565.) And in the State of Mississippi 
 the common law rule relating to alieos in connection with dower 
 substantially obtains. {For full references to the statutes of tJie 
 United States upon the subject, vide 1 JScribner on Dower, 148-174:. 
 
 It will thus be seen that the common law in respect to the effect 
 
LAW OF Downs. 525 
 
 of alienage upon dower, has been greatly modified, or entirely 
 abrogated in most of the American States. 
 
 § 384. In respect to the effect of color upon the question of 
 dower there seems to be considerable doubt. In England, persons 
 of the colored races enjoy equally with the " whites " the privileges 
 of dower ; for, by the common law, all women who are natural 
 born subjects, and have attained the age of nine years, are entitled 
 to dower. But in most of the United States there is a distinction, 
 in respect to political privileges, between " white persons " and 
 colored persons of African blood, and in very few of the states do 
 the latter, at present, participate equally with the former in the 
 exercise of civil and political rights. The African race is generally 
 looked upon as essentially a degraded caste, of inferior rank and 
 condition in society. Marriages between them and whites are for- 
 bidden in all, or nearly all, of the late slaveholding states, and in 
 Bome of the states where slavery has not existed for forty years ; 
 and when such marriages are not absolutely contrary to law, they 
 are revolting, and regarded as an offense against public decorum. 
 But blacks, whether born free or in bondage, if born under the 
 jurisdiction and allegiance of the United States, have always been 
 considered natives, and not aliens. They are what the common 
 law terms natural bom subjects, and have always been so recog- 
 nized by the United States. ( Vide 2 Kent^s Com. 258, note h.) 
 
 So, also, the Indians, though natives of the United States, are 
 seldom, if ever, regarded as citizens. They do not possess the 
 rights, nor are they bound to the duties, of citizens. • They are 
 governed by the laws and usages of their tribe, and are only sub- 
 ject to the laws of the state where they reside so far as the public 
 safety requires. Each Indian tribe has been uniformly regarded 
 as an independent sovereignty ; and yet, in its weak and dependent 
 condition, as the object of protecting care. {Yide Sastings -y. 
 Farmer, 4 if. Y. B. 293, 294. Bole v. Irish, 2 Barl. R. 639. 
 The State v. Boss, 7 Yerg. JR. li. The State v. Managers of Eleo- 
 iions, 1 Bailey's B. 215. Goodell v. JacJcson, 20 Johns. B. 693.) 
 And it is generally understood, and in some instances judicially 
 declared, that Africans and their descendants, the copper-colored 
 natives of America, and the yellow or tawny races of the Asiatics, 
 are excluded from the benefits of the naturalization laws of the 
 American congress. It does not follow from all this, however, 
 that the colored races are excluded from all the rights of property ; 
 
526 LAW OF COVERTURE. 
 
 and virtually, their right to hold and transmit property, both real 
 and personal, is now recognized in all the states. So, however 
 perplexing the question may have been heretofore considered, it is 
 quite certain for the future that no persons of the colored races, 
 who are native born subjects of this country, can be excluded 
 from the privileges of dower. 
 
 It seems that the widows of persons attainted, of . conspirators, 
 and of absentees, are entitled to dower. {Sewall v. Zee, 9 Mass. 
 R. 363. Wells v. Mcvrtim., 2 Bay's R. 20. Mongin v. Baker, 1 ib. 
 Y3. Palmer v. Horton, 1 Johns. Gas. 37. Cozens v. Long, 2 
 Pennington^s R. Y64.) 
 
 § 385. The second requisite to dower at common law is, that the 
 husband should be seised, some time during the coverture, of the 
 estate whereof the wife is dowable. This rule of the common law 
 has been modified by the statutes of some of the states; for 
 example, in many of the states it is necessary that the husband die 
 seised. Beference will be made to the changes made in the com- 
 mon law rule hereafter. Though it is required that the husband 
 should be seised of the estate, there is no necessity for a seisin in 
 deed, as in the case of curtesy, for a seisin in lam will be sufficient, 
 otherwise it would be in the husband's power, either by his neg- 
 ligence or his malice, to defeat his wife of that subsistence after 
 his death which the law has provided for her. When the ancestor 
 dies seised, and the heir being married dies without making an 
 actual entry on the lands, his widow is entitled to dower in the 
 lands ; for, by the descent of the land upon the heir, he acquired a 
 seisin and freehold in law, though not in deed. (1 Greenl. Cruise, 
 156.) When, however, the husband has only a right of entry 
 during coverture, and does not exercise it before his death, no title 
 to dower arises to his widow ; for in such case it cannot be said 
 that the husband had either seisin in law or in deed during the 
 marriage. ( Tide Oalhraiih v. Greene, 13 Serg. & Ramle^s R. 85.) 
 A widow can recover dower only upon the strength of her hus- 
 band's title. She must show a seisin in him during coverture. 
 (Poor V. Horton, 15 Barb. B. 485.) And in order that dower 
 arise, the husband must have been seised, during the marriage, of a 
 present freehold interest, and not of a remainder in the land. 
 {Pretts V. Rickey, 29 Perm. R. Yl.) In a word, to entitle a widow 
 to dower, the husband must have been seised, either in fact or in 
 law, of an estate of inheritance in the land at some time during 
 
LAW OF DOWER. 527 
 
 coverture. This rule is inflexible. Simply a reversion in fee, or a 
 vested remainder expectant upon estate for life, is not sufficient. 
 (JDurando v. JDwando, 23 N. Y. JR. 331.) Eut thougli the seisin 
 at law of the husband without actual entry will entitle the wife to 
 dower, this seisin at common law must be of a legal and not an 
 equitable estate. {Godwin v. Winsmore, 2 Atk. H. 526.) However, 
 in some of the states the widow is entitled by statute to dower out of 
 the equitable estates in lands of which the husband was the owner, 
 in the same manner as in the legal estates of which the husband 
 died seised or possessed. This is the rule in Virginia, Tennessee, 
 Maryland, Ulinois, and perhaps others of the states. In Kentucky 
 it is declared by statute that the wife shall have dower of real 
 estate, although there may have been no actual possession, or 
 recovery of possession, by the husband in his life-time. (2 Ji. S. 
 art. 2, oh. 47.) 
 
 Lord Coke lays it down that of a seism for an i/nstant a woman 
 shall not be endowed. Sir William Blackstone explains this 
 position thus : ".The seisin of the husband for a transitory instant 
 only, whea the same act which gives him the estate conveys it also 
 out of him again, as where, by a fine, land is granted to a man, 
 and he immediately renders it back by the same fine, such seisin 
 will not entitle the wife to dower, for the land was merely in 
 transitu, and never vested in the husband, the grant and render 
 being one continued act. But if the land abides in him for the 
 interval of but a single moment, it seems that the wife shall be 
 endowed thereof." (1 Co. Litt. ch. 5, § 36. 2 Black. Com. 131. 
 Broughton v. Randall, Cro. Eliz. 503.) When the husband takes 
 a conveyance in fee, and at the same time mortgages the land back 
 to the grantor, or to a third person, to secure the purchase-money 
 in whole or in part, dower cannot be claimed as against rights 
 under the mortgage. The husband is not deemed sufficiently or 
 beneficially seised by an instantaneous passage of the fee out of 
 him to entitle his wife to dower as against the mortgage. {May- 
 Imrry v. Brien, 15 Peter's R. 21.) The doctrine that of a seisin 
 for an instant a woman shall not be endowed, seems to be well estab- 
 lished in this country. (Hofhrodk v. Finney, 4 Mass. R. 566. 
 ClarJa v. Muroe, 14 ib. 352. Slow v. Tift, 15 Johns. R. 485.) 
 But the court say in one case : " Perhaps there is no general rule, 
 in strictness, that in cases of instantaneous seisin the widow shall 
 or shall not be entitled to dower. * * * When. a man has the 
 
528 ZAW OF COVERTURE. 
 
 seisin of an estate beneficially for Ids own use, the widow shall be 
 endowed." {McOcmley v. Grimes, 2 Gill cS> Johns. B. 324.) 
 "What may be a beneficial seisin in the husband, so as to entitle his 
 widow to dower, may be a matter of controversy, and must lead to 
 some uncertainty. It has been held, where a man conveyed land to 
 one who at the same time conveyed the same land to another, that 
 the widow of the first grantee was entitled to dower in the land 
 conveyed. (StamwooA v. Dunning, 2 Shepleyh R. 290.) But 
 more of this when the nature and qualities of the property subject 
 to dower is considered. By the dower act now in force in Eng- 
 land, the widow may claim dower when the husband has had only 
 a right of entry or action ; but the dower must be sued for or 
 obtained within the period during which the right of entry or 
 action might be enforced. (3 and 4 Will. IV. ch. 105, §§ 2, 3.) 
 But tlie principle is well settled by the common law that the 
 wife's right of dower attaches only to the beneficial seisin of the 
 husband. 
 
 § 386. The last circumstance required to the existence of an 
 estate in dower is the death of the husband, by which the wife's 
 estate is consummate. It is generally understood that nothing but 
 the natural death of the husband will give a title to dower, though 
 there are some old authorities to prove that the wife of a man ban- 
 ished by abjuration, or by act of parliament, which is a civil death, 
 would be entitled to dower. But the civil death of the husband 
 by his entry into religion had not this effect. 
 
 When it was uncertain whether the husband was dead, as when 
 he was absent beyond seas, and no intelligence of him could be 
 obtained, it seems that the wife might recover dower condition- 
 ally. (1 BrigMs Husband and Wife, 325.) Eeputation in the 
 family is pnma facie evidence of the death of the husband. 
 {Cochrane v. Inhly, 6 Shepley's B. 39.) So, in general, is the 
 granting of letters of administration evidence of 'Such death- 
 {Thompson v. Donaldson, 3 Esp. B. 63. Succession of Mamhlin, 3 
 Boh. [Za.J B. 130. Newman v. Jenkins, 10 Pich. B. 515. Moores 
 V. De Bernales, 1 Buss. B. 301.) But a treatise on evidence may 
 be consulted as to what is competent proof of the death of the hus- 
 band, and as to the presumption of survivorship when two persons 
 perish by the same calamity. {Yide 1 GreenZ. on Eo. §§ 29, 30, 
 41, 550. Also Ta/ylor v. Dipach, 2 PhUl. B. 261. Oolvin v. 
 Proowator-Omeral, 1 Sagg. EgoI. B. 93. In re Murray, 1 Curt. 
 
IjAW of Downs. 529 
 
 £. 596. Satterthwaite v. Powell, Ih. 705. SilUch t. Booth, 1 
 Tm. (& Col. Gas. 121.) 
 
 § 387. The birth of issue is not required in order to give a right 
 to dower, as it is in order to found a right to curtesy. But the 
 widow will not be entitled to dower unless her issue could by possi- 
 bility have inherited the estate. If, therefore, a man seised of 
 lands in fee simple have a son by his first wife, and after her death 
 marry a second, she will be entitled to dower of his lands, for her 
 issue might, by possibility, have been heir to and inherited the 
 estate after the son's death. 
 
 It is laid down by Lord Coke that if the wife is past the age of 
 nine years at the time of her husband's death, she will be endowed, 
 although her husband be but four years old. It is observed that 
 though a woman cannot consent to marriage before twelve years, 
 nor a man before fourteen, yet this inchoate and imperfect mar- 
 riage, from which either of the parties may, at the age of consent? 
 disagree,. shall entitle the wife to dower. {Go. Litt. 33.) The law 
 did not deem it necessary that the woman should be nine years old 
 at the time of marriage, for if she were then of the age of seven 
 years only, and survives nine at the husband's death, she would be 
 entitled to dower, the law supposing her capable from, that period 
 of having heritable issue. The wife will be entitled to dowpr how- 
 ever far advanced in years she may be at the time of her marriage, 
 because the law cannot fix upon the precise period when her 
 capability of having issue determines. Lord Coke mentions an 
 instance of a woman having a child after she attained heri sixtieth 
 year. The law sets no bounds to the possibility of having issue at 
 the most advanced age, for the reason, as Lord Coke said ! " Seeing 
 that women in ancient times have had children at that age where- 
 imto no woman doth now attain, the law cannot judge that to be 
 impossible which by nature was possible;) and. in my time a 
 woman above threescore years old hath had a child, and Adeo nan, 
 definitur in jure." {Co. Litt. 4:0 a.) 
 
 Upon this subject, Mr. Scribner very properly remarks in the 
 light of authority, that "it is believed not to be essential to the 
 right of dower in any case that the wife should be physically capa- 
 ble of bearing children. Dower is a right incident to marriage, 
 and at this day the possibility of having issue can hardly be 
 regarded as a prerequisite to the inception of the estate. If, by 
 the law of the place where the marriage is contracted, the wife is 
 67 
 
530 LAW OF COVMRTUBE. 
 
 competent to enter into that contract, and the marriage be valid 
 in other respects, the necessary effect would seem to be to clothe 
 her with all the rights pertaining to the marital relation. And if 
 the marriage remain undissolved during the life of the husband, it 
 seems clear that the widow would be entitled to dower, even 
 though it were rendered absolutely certain that, by reason of physi- 
 cal malformation, or other cause, she was utterly incapable of 
 bearing children." (1 Scrihner on Dower, 21Y, referrimg to 1 
 Washburn on Real Property, 153.) 
 
 CHAPTER XXVII. 
 
 OF WHAT PEOPEETT THE WIFE IS DOW ABLE — DOWEE DT LANDS — ^DOWEB 
 
 m ■ MINES AND OEE-BEDS PAETNEESHIP LAITOS EXCHANGE OP 
 
 LANDS LANDS PAETITIONED MOETGAGED LANDS EEVEESI0N8 
 
 AND EEMAINDEES TEUST ESTATES EQUITABLE ESTATES — LANDS 
 
 APPEOPEIATED TO PUBLIC USES SUMMARY. ■ 
 
 § 388. "WriH respect to the description of the property which is 
 subject to dower, it may be affirmed, in general terms, that, at the 
 common law, dower may be claimed out of all lands jvhereof the 
 husband was seised in fee simple, at any time during the coverture, 
 and out of all incorporeal hereditaments that savor of the realty, 
 or which issue out of corporeal ones, or which concern or are annexed 
 to or may be exercised within the same, as rents, estovers, common 
 appendant woods, mills, piscaries and the like. (2 Black. Com. 
 131.) The widow is not entitled to dower out of all her husband's 
 incorporeal hereditaments of what nature soever, but only out of 
 Buch incorporeal hereditaments as savor of the realty. {^Buck- 
 ridge V. Ingra/m, 2 Yes. Jun. B. 664.) 
 
 The widow is dowable of all mines wrought during the coverture, 
 whether by the husband, or lessees for years; whether paying 
 pecuniary rents, or rents in kind; and whether the mines are under 
 the husband's own lands, or have been absolutely granted to him, 
 to take the whole stratum in the land of others ; and dower may be 
 assigned of mines, either collectively with other lands, or separately 
 of themselves. {Stoughion v. Leigh, 1 Taunt. B. 402.) This is 
 correct in respect to mines opened during coverture, but as to 
 
LAW OF DOWER. 531 
 
 mines in general, including beds of irqn ore, if they are unopened 
 at the time of the owner's death, his widow must take her dower in 
 other land merely. The newly opening a mine is waste, and the 
 widow, having only an estate for' life, can legally do no act which 
 injures theinheritance. All the cases agree in this. ( Vide Ooates 
 V. Cheever, 1 Oow. JR. 460, 474.) "Where a man died seised of a 
 tract of land of four acres, consisting of a slate quarry partially 
 above ground, a small portion of which had been worked at the 
 usual depth, the whole quarry was held to be opened, and there- 
 fore subject to dower. {BilUngs v. Taylor, 10 Pick. E. 460.) 
 And it has been held that a tenant in dower of coal lands, may take 
 coal to any extent from a mine already opened, or sink new shafts 
 into the same veins of coal, or dig into a new seam through one 
 abeady opened above it. (Grcmch v. Puryear, 1 Band. P. 258.) 
 In iNTorth Carolina, the widow has no authority to make turpentine 
 unless it had been done by the husband ; but if her husband had 
 done so, then she may use trees already hoxed in his life-time, or box 
 new ones, not exceeding the amount of tui'pentine obtained when 
 dower was assigned. {Ckrr v. Carr, 4 Pev. cfe Patt. P. 179.) 
 
 Of a mere annuity granted to the husband and his heirs, the 
 widow will not be entitled to dower, because it is a personal 
 demand only, a mere charge upon the person of the grantor, and 
 does not issue out of any lands or tenements. {Earl of Stafford 
 V. Buckley, 2 Yes. Sen. P. 170. Aubi/ii v. Paly, 4 Pam. c& Aid. 
 P. 69. Pblderness v. Carmarthen, 1 Pro. G. 0. 377.) 
 
 When real estate is purchased for the use of a commercial part- 
 nership, and paid out of the proceeds of the partnership, and con- 
 veyed to one of the partners, although he will have the legal 
 interest, the estate will, in equity, be converted into personalty, 
 and his widow will not, therefore, be entitled to dower out of his 
 share. So if in such a case the estate was conveyed to the partners 
 as tenants in common, their widbws have no right to be endowed 
 out of their I'espective shares. {Thornton v. Dixon, 3 Pro. G. G. 
 19. Pipley v. Waterworth, 1 Yes. P. 425.) It was formerly 
 doubtful whether, in the absence of any agreement between the 
 partners, that real estate purchased with partnership funds, should 
 be sold on the dissolution of the partnership, the circumstance that 
 the land was bought for the purposes of the partnership would con- 
 vert it into personalty as between the representatives of a partner. 
 But it now seems to be well settled that real estate purchased with 
 
532 LAW OF COVEBTUBB. 
 
 partnership property for partnership purposes, is to all intents and 
 purposes to be considered as personalty, and therefore the wives of 
 the partners have no right of dower in such lands. {Selkrig v. 
 Davies, 2 Dow. B. 242. Phillips y. FhilUps, 1 Mylne & KeerHs 
 Oil. R. 649. Eale v. Fhimmer, 6 Ind. R. 121. Galbraith v. 
 Gedge, 16 JB. Mon. R. 634.) But the land will not become per- 
 sonalty unless it is purchased for the purposes of the partnership 
 trade. {Randall v. Randall, t Sim. R. 271.) Nor will it become 
 personalty, if, although used for partnership property, it ia not 
 necessary that it should be sold for the purposes of the partnership, 
 unless it has been treated by the partners as partnership property. 
 {Oookson V. Cooleson, 8 Sim. R. 529. Hov^hton v. Houghton, 11 
 ih. 491.) In one case where real estate was purchased for the 
 purposes of a partnership, and paid for out of joint effects, but by 
 the agreement between the partners, it was to become the separate 
 property of one of them, to whom it was conveyed, and he was to 
 be a debtor to the partnership for the purchase-money, his wife was 
 held entitled to dower of the whole. {Smith v. 8m/ith, 5 Yes. R. 
 189. And vide Greene v. Greene, 1 Ohio B. 244.) 
 
 It may be affirmed that estates held by partners may or may not 
 be liable to dower, according to the pircumstances of each case. 
 Whenever real estate is purchased as part of the capital, whether 
 by the form of the conveyance the legal estate vests in them as 
 joint tenants or tenants in common, it. vests in them and their 
 respective heirs in trust for the purposes of the partnership, until 
 those pu:rposes are accomplished. Until then, the land has in 
 equity all the attributes of personal property, held in partnership 
 and in trust ; and the widow of a deceased partner cannot have 
 dower until the claims of the partnership creditors and of tlie-sur- 
 viving partner are adjusted and settled. (1 Greenl. Cruise, 180. 
 Dyer v. Clwrlc, 4 Met. R. 562, 579, 580. Sigourney v. Munn, 7 
 Conn. R. 11. Moxie v. Carr, 1 Satnner''s B. 173. Orawshay v. 
 MoAJble, 1 Swanst. R. 495, 522. Broom v. Broom, 3 Mylne (& 
 Keen's R. 443.) 
 
 § 389. It may happen from the nature of the property and the 
 different kinds of remedies given for the recovery of it, that it will 
 be considered either a real or a personal inheritance, at the election 
 of the heir, so as to place the widow's right of dower in his power. 
 The right to dower may also depend on the election of a third 
 person. If, previously to the title of dower attaching, the husband 
 
LAW OF DOWBR. 633 
 
 has by contract given to the tenant of another the option of pur- 
 chasing the estate, the exercise of that option either before or after 
 the husband's death, will, at common law, convert the estate into 
 personalty, and defeat the widow's right to endowment. {Townley 
 V. Bidwell, 14 Ves. JS. 591.) The widow is prima fade entitled 
 to be endowed of a rent-charge ; but if, before distress and avowry 
 made, her husband die, and the heir brings his writ of annuity and 
 recovers judgment in it, or proceed no flirther than filing a decla- 
 ration, the heir's election is barred and the rent-charge will be 
 converted into a mere personal annuity, in which the widow can- 
 not claim dower, for the lands ar6 forever discharged from the real 
 remedy by distress. These are examples when the widow's right 
 to endowment is sometimes in the power of the heir or a third 
 person. {Oo. lAtt. 144, 145.) 
 
 When the husband has exchanged lands, the wife will not be 
 dowable both of the lands given and taken in exchange, but she 
 will be permitted to elect out of one of the two estates, because 
 her husband was seised of both during coverture. [Co. Litt. 31. 
 1 Greenl. Cruise, 163. Butter's case, 3 Leon. S. 271. 1 WasM. 
 Real Prop. 158, § 11.) 
 
 The doctrine of the common law in regard to the exchange of 
 lands does not prevail in all of the American States. Indeed the 
 rule in a majority of the states is that when lands are exchanged, 
 both parties are regarded as ordinary pm-chasers, and in such case, 
 of course, the widow's right of doWer attaches to both the land 
 conveyed and the land received in exchange. ( Vide 1 Sorihner on 
 Dower, 272. Cossy. Thompson,! W. H. B. 65,) The common 
 law rule upon the subject is recognized in the States of New York, 
 "Wisconsin, Arkansas, Michigan, Illinois, Kentucky, Minnesota, 
 and Oregon, and perhaps in some others, in all of which the right 
 of dower is limited, upon the exchange of lands, to the estate in 
 only one parcel, to be elected by the widow. The rule of the 
 common law upon the subject also prevails in the District of 
 Columbia. ( Vide the stMutes of the several states.) 
 
 It is important, however, in this connection, to understand the 
 meaning of an exchange in the legal acceptation of the term. An 
 exchange is defined by Blackstone to be " a mutual grant of equal 
 interests, the one in consideration of the other. * * * The 
 estates exchanged must be equal in quantity, not of val/ue, for that 
 is immaterial, but of interest, z& fee simple for fee simple^ a lease 
 
534 LAW OF COVERTURE. 
 
 for twenty years for a lease for twenty years, and the like." (2 
 Black. Com. 223.) And when the common law rule is adopted by 
 the statute of any state, the conclusion is that it was adopted with 
 reference to the common law definition of this species of conveyance, 
 ( Wilcox V. Bandall, 1 Barb. B. 633, 639.) 
 
 But if, for a valuable consideration, the division of lands held in 
 common by two or more parties is purposdy made in unequal 
 parts, the widow will not be limited in her right of dower to the 
 part which was released to her husband. {Mosher v. Mosher, 32 
 Maine B. 412.) 
 
 § 390. If, at common law, the husband seised of a rent-charge in 
 fee, purchase the inheritance of the lands out of which the rent 
 issues, his widow must elect of which she will be endowed. And 
 if the husband, make a feoffment in fee, reserving a rent, she must 
 elect to be endowed either of the lands or of the rent ; and if she 
 make a choice of the former, she will hold them discharged of the 
 latter. (Perkins on Conveyancing, %% 320, 324.) 
 
 As the period for the wife to make her election in these cases is 
 at her husband's death, and not sooner, it has been determined 
 that if she and her husband exchange her lands for others, and 
 then they convey away by deed and fine the lands taken in 
 exchange, she will nevertheless be at liberty to enter upon her 
 own estate after her husband's death. {Anonymous, 1 Leon. B. 
 285.) But this would not be the case if the lands exchanged were 
 conveyed in the manner by which the separate lands of a wife 
 may be legally transferred. 
 
 If the husband were seised in fee, and conveyed away the estate, 
 and then took it back again in fee or in tail, the widow may elect 
 whether she will be endowed upon the first or second seisin, the 
 exercise of which may be of material consequence to her. {Co. 
 lAtt. 33.) But the right of election hereinbefore noticed, has no 
 application at the present day in England, for the reason that by 
 statute, no widow is entitled to dower out of any land which shall 
 have been absolutely disposed of by her husband in his life-time or 
 by his will. (3 am,d 4 William IV, ch. 105, § 14.) The dower of 
 the wife is therefore defeated by her husband's alienation, and in 
 several of the American States it js necessary that the husband dde 
 seised of the lands in order that dower may attach. This is the 
 rule in Connecticut,Vermont, North Carolina, Tennessee, Georgia, 
 Mississippi, New Hampshire, and possibly in some others, although 
 
LAW OF DOWEB. 535 
 
 it is quite certain that in most of the remaining states the rule of 
 the common law, that seisin d/wring coverture is sufficient, is still 
 retained. 
 
 § 391. In some of the states the law expressly excludes wild find 
 uncultivated lands from the operation of dower. Thus, in the 
 State of Massachusetts it is provided by statute that " a widow 
 shall not be endowed of wild lands of which her husband shall die 
 seised, nor of wild lands conveyed by him, although they should 
 be afterward cleared ; but this shall not bar her right of dower in 
 any wood lot, or other land used with the farm or dwelling-house, 
 although such wood lot or other land should never have been 
 cleared." {(}m. Stat. 1860, ch. 90, § 12.) 
 
 Upon this subject, Chief Justice Parker said, in one case before 
 the supreme judicial court : " By the common law, the widow is 
 dowable of all the real estate of which her husband was seised 
 during coverture, with the exception only of a castle erected for 
 public defense, of a common in gross, and some other kinds of 
 estate not known in this country. The question whether forests, 
 parks, and other property of a similar nature, are also exceptions, 
 seems never to have occurred ; probably because there is no instance 
 in Great Britain of any such property held separately and distinct 
 from improved and cultivated estates. In this country, op the 
 contrary, there are many large tracts of uncultivated territory 
 owned by individuals who have no intention of reducing them to 
 a state of improvement, but consider them rather the subject of 
 speculation and sale, or as a future fund for their prosperity, 
 increasing in value with the population and improvements of the 
 country. If dower could be assigned in estates of this nature, 
 the views of those who purchase such property would be obstructed ; 
 and an impediment to their transfer would be created, and in 
 many instances the inheritance would be prejudiced without any 
 actual advantage to the widow, to whom the dower might be 
 assigned. For, according to the principles of the common law, her 
 estate would be forfeited if she were to cut down any of the trees 
 valuable as timber. It would seem, too, that the mere change of 
 the .property from wilderness to arable or pasture land, by cutting 
 down the wood and clearing up the land, might be considered 
 waste ; for the alteration of the property even if it became thereby 
 valuable would subject the estate in dower to forfeiture ; the heir 
 having a right to the inheritance in the same character it was left 
 
536 LAW OF COVMSTVUE. ■ 
 
 by tie ancestor. * * There would seem, then, to be no reason 
 for allowing dower to the widow in property of this kind. If she 
 did not improve the land, the dower would be wholly useless ; if 
 she did improve it she would be exposed to disputes with the heir, 
 and to the forfeiture of her estate after having expended her sub- 
 stance upon it. * * Upon the whole, seeing no possible benefit 
 to the widow from an assignment of dpwer in such property ; and, 
 on the contrary, believing that it would operate as a clog 'upon 
 estates designed to be the subject of transfer ; and finding that the 
 principles upon which the estate of dower rests at common law 
 are not applicable to a case of the kind before us, we feel con- 
 strained to say that the demandant cannot sustain her action." 
 (Conner v. Shepherd, 15 Mass. E. 164.) 
 
 It has also been held that the widow is not dowable of lands 
 which were alienated by the husband when they were in a state of 
 nature, though at the tinie of his death were cultivated and made 
 tillable as a farm, but altpgether by the labor of the grantee of 
 the husband or those who claimed under him. ( Webb v. Townsend, 
 1 Pick. R. 21.) 
 
 But the widow is entitled to dower in woodland which is used 
 as an appendage to the dwelling-house and cultivated land, for the 
 purpose of procuring fuel and timber for repairs. ( White v. WilMs, 
 1 Pick. B. 193. Shattudk v. Oregg, 23 ib. 88. Bat videWhite v. 
 Oi^?-, 17 *5. 248.) 
 
 In the State of Maine the same rule prevails upon this subject 
 as in Massachusetts; the statute is precisely similar, iand the 
 authorities, so far as the question has been involved in the cases, 
 agree in all respects with the decisions of the Massachusetts courts. 
 (iJi 8. 1857, ch. 103, § 2. Mosher v. Mosher, 3 8h^. R. 371. Dur- 
 hmth v. Angier, 20 Mcdne R. 243. Khii/ri v. KaZer, 2 Shep. B. 409. 
 Stevens v. (?wJeM, 12 ih. 94.) And in the State of New Hampshire 
 the statute upon the subject is substantially the same as the 
 ' statutes of Massachusetts and Maine. {Comp. Laws of 1853, ch. 
 175, •§§ 4, 5. ¥ide Johnson v. Perley, 2 N. H. R. 66.) 
 
 § 392. In all or nearly all of the remaining, states, where the 
 right of dower has not been abolished by statute, dower is allowed 
 in all the lands of the husband, whether in a state of nature or 
 improved. In a case before the courts of Virginia, Judge Eoane 
 said : " In considering what is waste in this country, it is to be 
 remarked that the common law, by which it is regulated, adapts 
 
LAW OF SOWER. 537 
 
 itself in this, as in other cases, to the varied situation and cir- 
 cumstances of the country. That cannot be waste, for example, 
 in an entire woodland country which would be so in a cleared one. 
 The contrary doctrine would starve a widow, for example, who 
 could not subsist without cultivating her dower land, nor cultivate 
 it without felling the timber. A clearing of the land in such cir- 
 cumstances would not be a lasting damage to the inheritance, nor 
 a disinherison of him in the remainder, which is the true definition 
 of waste. It would, on the contrary, be beneficial." {Fmdlay v. 
 Smith, 6 Munf. B. 134:. Vide also Maoaul&y v. Dismal Swam^ 
 Company, 2 JSdbinson's R. 507.) 
 
 In an early case in Ohio, in which the question was presented, 
 the court said : " The second question in what seems to the court the 
 appropriate order for considering the points in the case is, can 
 the widow claim to be endowed of lands lying wild and uncleared 
 of timber, during the husband's seisin, and at the time of the 
 alienation ? This question is raised upon a technical nicety of the 
 common law. One of the incidents attached to a dower estate is 
 its forfeiture for waste, and a prominent act of waste is converting 
 woodland into arable. Thus, it is argued, dower in wild land is 
 a useless property. It can be of no value to the widow in its wild- 
 state, and it cannot be reduced to cultivation without forfeiting the 
 estate itself. This argument is too subtle to.be received as premises 
 for the conclusio^it seeks to enforce. The common law doctrine of 
 waste has never been recognized in Ohio, either as an incident 
 of title, or as affording a remedy for -wrong." {Allen v. McCoy, 8 
 Ohio E. 418.) This is still the doctrine in the State of Ohio. 
 And the same doctrine prevails, certainly, in the States of New 
 York, Michigan, Illinois, Kentucky and Georgia^ and, with some 
 little qualification, in Ehode Island, Pennsylvania, North Carolina, 
 and Tennessee. ( Vide Walker v. Sohvyler,' 10 Wend. H. 480. 
 Cattvphdl, Appellant, 2 Doug. [JficA.] R. 141. Schnebly v. 
 Sohnebly, 26 III. B. 116. Miokmam. v. Irmne, 3 Dands [Ky.] R, 
 121. diapnian v. Shroeder, 10 Oeo. ^.321. Pvh. Lams of R.I. 
 1844, _p. 188, § 3. Sastvngs^. Crunclcleton, 3 Yeates'' [Penn.] B. 
 261. Ballantme v. Poyner, 2 Hayw. [iT. <7.] B. 110. Parkins 
 V, Cox, II. 339. Wilson v. Sm,ith, 6 Terg. [Tenn.'] B, 379. And 
 vide Comies v. Young, 4 ib. 218. Owen v. Myde, 6 ib. 334.) 
 
 Mr. Scribner says upon this question : " In the absence of any 
 express legislation on the subject, the question whether a widow 
 68 
 
538 
 
 LAW OF COrSBTUBE. 
 
 is dowable of wild lands, depends very mnch upon tlie extent to 
 wliich the courts have gone in adopting the rigid rules of the com- 
 mon law respecting the doctrine of waste. In several of the older 
 states the common law is held to be in force. In others, and per- 
 haps in a majority of them, the strict rule obtaining in a highly 
 cultivated country like England, is considered inapplicable in a 
 comparatively new and unsettled country like ours, and is there- 
 fore received with such modification as properly adapts it to the 
 condition of things existing with us. And it may be here stated 
 as a general principle, that in those states where a tenant for life is 
 authorized, either by express statute, or by a judicial exposition of 
 the law of waste, to clear a reasonable proportior( of wild lands 
 and fit them for cultivation, a widow is entitled to be endowed of 
 such lands, and to exercise therein all the rights and privileges 
 commonly permitted to tenants for life." (1 Senbner on Dow. 202, 
 citing 1 Milliard's Beal Prop. M ed. 141, § 22.) 
 
 It has been held in New York and Virginia, however, that, as a 
 general rule, when the lands are alienated by the husband in his 
 life-time, the widow's dower is assigned according to the value ot 
 the lands at the time of alienation, and not at the time of the death 
 of the husband, unless the lands have decreased in value since the 
 alienation, ( Vide Tod v. Baylor, 4 Leigh's R. 493. Humphrey v. 
 Phinney, 2 Johns. B. 484. Dorchester v. Coventry, 11 ib. 510. 
 Walker v. Schuyler, 10 WcTid. R. 480. Dillle v. Cjpjop, 31 Hmo. Pr. 
 R. 420.) But in other states it is held, on the contrary, that when the 
 land has increased in value, not by the labors of the heir, or of 
 the purchaser, but from extrinsic and collateral causes, as the increas- 
 ing prosperity of the country, the erection of manufactories or other 
 improvements in the neighborhood, the wife shall have the benefit 
 of such increased value, or, in other words, the value at the time 
 of allotment, excluding the purchaser's improvements, and such 
 seems to be the current of authority on the subject. ( Vide Dun- 
 seth V. Bank of United States, 6 Ohio R. 76. AUen\. McCoy, 8 
 il. 418. Dashill v. Collier, 4 J. J. Marsh. R. 603. Taylor v. 
 Broderic, 1 Dana's R. 348. Lawson v. Morton, 6 il. 4T1. Smith 
 V. Addleman, 5 Blackf. R. 406. Green v. Tennant, 2 Earring. B. 
 336. Mosher v. Mosher, 15 Maine R. 371. Gore v. Brasier, 3 
 Mass. R. 544. Powell v. Mons. cfe Brim. Mam,. Co. 3 Mason's 
 R. 374, 375. Thompson v. Morrow, 5 Serg. & Rawle's R. 289. 
 Shirtz V. Shirtz, 5 Watt's R. 255.) But in New York and 
 
LAW OF Downs. S39 
 
 Virginia, the opposite rule has been adopted, and the ■widow is con- 
 fined strictly to the value, at the time of alienation. 
 
 § 393. In cases of partition of lands held in common, the statutes 
 of all or nearly all of the states, prescribe the form and eflfect of all of 
 the proceedings, and as a general rule it may be affirmed, that the 
 widow's dower attaches to the share allotted to her husband, 
 the same as in cases of an exchange of lands. Partition of an 
 estate owned by tenants in common may be made by deeds of 
 release as well as by deeds of partition, and by process of law. 
 Where a simple partition of a common estate is made, the right of 
 the widow of each tenant to claim dower, may well be restricted 
 to the share assigned or conveyed to her husband. That must be 
 presumed to have been of equal value to the husband's share of the 
 whole estate. If partition be not made by assigning or conveying 
 to each his own share, and the estate is conveyed in unequal shares 
 of unequal values, and especially when other considerations beside 
 that of a division of the common estate occasion the conveyances, 
 no principle is perceived, or authority found, limiting the right of 
 the widow to a claim of dower only in the portion conveyed to her 
 husband.' ( Vide Mosher v. Mbsher, 32 Maine H. 412.) But when 
 lands held in common are legally partitioned by proceedings at 
 law or in equity, or by equal partition deeds between the parties, 
 the wife's dower attaches only to the husband's share in severalty ; 
 though in cases of legal partition the wife should be made a party 
 to the proceedings. {Potter v. Wheeler, 13 Mass. R. 504. Lloyd 
 V. Conover, 1 Dutch. H. 47. Sut -vide Lee v. LJmddl, 2 Missouri 
 H. 202, 206.) However, if the tenant in common conveys his 
 interest, and the grantee in the life-time of the husband obtains 
 partition of the lands, the dower of the wife wiU be assigned as 
 though no partition had been made. {Rank v. Manna, 6 Lnd. R. 
 20.) Partition of lands among co-devisees does not deprive the 
 wife of one of the devisees of her inchoate right of dower in a 
 parcel set off to another, though equity will make all contribute 
 to mate the latter good. ( WalTier v. Hall, 15 Ohio St. R. 355.) 
 
 § 394. In case the joint property cannot be divided or partitioned 
 without great prejudice to the owners, or irom its situation it can- 
 not be consistently divided into the requisite number of equal 
 parts, the property has to be sold, and the proceeds divided among 
 the parties ; and a sale made in conformity to the statute, divests 
 the contingent right of dower of the wife of a co-tenant, and 
 
540 LAW OF COVERTURE. 
 
 passes the entire estate absolutely to the purchaser. In siich a 
 case, however, it is the duty of the court under whose direction 
 the sale is made, to require a proper portion of the husband's share 
 of the money to be safely invested for the benefit of the wife, in 
 case she survives her husbaiid, and her right of dower becomes abso- 
 lute. {Jackson V. JEdwards, 1 Paigeh Ch. M. 391. Wilkinson v. 
 Parish, 3 ib. 653. Lee v. Linddl, 2 Mo. E. 202. Weaver v. Chregg^ 
 6 Ohio St. JR. 547. Ba^tlett v. Van Zandt, 4 Samd. Ch. B. 396.) 
 But this may depend upon the terms of the etatute under which 
 the sale of the land is made. ( Vide Wam-en v. Twilley, 10 Md. 
 B. 39.) The question, under the New York statute, was for some 
 time in doubt ; and in one case it was held that the act of the 
 husband in subjecting' his wife to a partition suit, nor a judgment 
 or decree rendered therein without her assent evidenced in the 
 manner pointed out by law, did not have the effect of barring her 
 right of dower. {Matthews v. Matthews, 1 Edw. Ch. B. 565.) 
 But the question is now settled in New York the other way. In 
 the first case before the chancellor involving the question, he 
 reasoned thus : " That it was the intention of the revisers to enable 
 the courts to give to a purchaser under the judgment or decree, 
 where a sale of the premises was found to be necessary, a perfect 
 title as against every portion or contingent interest in any undi- 
 vided share of the property, is evident from the note which they 
 appended to the new provisions introduced by them in relation to 
 incumbrances on such shares. Indeed, without such a power, it 
 would be very difficult to make the partition equal in the case of a 
 sale, as a contingent right of dower or other defect in the title as 
 to one share in the property must, upon a sale, necessarily diminish 
 the amount bid for all the shares collectively. The same diffi- 
 culty, therefore, would exist in determining the value of a wife's 
 inchoate right of dower in the undivided share of her husband, for 
 the purpose of dividing the proceeds of the sale among the different 
 tenants in common according to equity, as is apprehended by the 
 counsel to exist in making a suitable provision for this contingent 
 right of the wife, out of the whole of the proceeds of her husband's 
 share of the sale, if she chose to insist upon her right to such a 
 provision. And, in addition to that, the fact that the title in the 
 hands of the purchaser would be incumbered with a contingent 
 right of ddwer of a feme-covert, in an undivided share of the 
 premises, which might subject the owner to future expense and 
 
LAW OF DOWEH. 541 
 
 litigation, would diminish the Talue of the property in the hands 
 of the purchaser to more than double the actual value of such con- 
 tingent right." {Jackson v. Edmards, 7 Paiges Ch. E. 391, 406, 
 407.) But the case was carried by appeal to the court of errors, 
 where the decree of the chancellor was unanimously aiBrmed, 
 without, however, passing upon the question whether the inchoate 
 right of dower of the wife would be barred by a sale of the lands 
 in a partition suit, as argued by the chancellor. Judge Bronson, 
 who delivered one of the opinions of the court, doubted whether 
 the wife would be barred, and questioned the authority of the 
 court to direct investments for her indemnity ; while Senator Ver- 
 planck, who delivered the other opinion, concurred in the views 
 of the chancellor. {Jackson v. Edwards, 22 Wend. H. 498.) But 
 the law is now well settled in ITe'V^ York that when the joint 
 premises cannot be partitioned without great prejudice to the 
 owner, so that a sale becomes necessary, the purchaser will hold 
 the land purchased by him, free and discharged from the dower 
 interest, provided the doweress has been made a party to the suit. 
 {Tanner v. Mies, 1 Barb. E. 660.) 
 
 In Pennsylvania it has been decided to be elementary law in 
 that state, that the dower interest a widow has in her husband's 
 lands is not changed into personalty by. proceedings in partition, 
 but that it retains its character of realty. {Manor's a/ppeal, 51 
 Penn. B. 375.) 
 
 § 395. When the lands of the husband are mortgaged in fee 
 before the marriage, or by the husband and wife after the marriage, 
 the legal estate is regarded as still in the mortgagor, as to all per- 
 sons except the mortgagee and his assigns ; and therefore the wife 
 is held dowable in the lands mortgaged. The equity of redemp- 
 tion in such lands, before entry or foreclosure, is equivalent to the 
 estate in fee, descendible by inheritance, devisable by will and 
 alienable by deed. The widow is entitled to dower therefore in 
 an equity of redemption, as well when the mortgage was executed 
 before marriage, as when it is executed by the husband and wife 
 during coverture. And as against the mortgagee and those claim- 
 ing under him, she is entitled in equity to redeem, upon payment 
 of the mortgage debt. No act, deed, or conveyance of the Iiusband 
 or judgment or decree confessed by or recovered against liim, will 
 prejudice the wife's right of dower. A purcliaser under a decree 
 of foreclosure and sale in equity, in the life-time of the husband, 
 
542 LAW OF COVERTURE.' 
 
 wlien the wife is not made a party, takes tlie estate subject to her 
 equity of redemption. In order to bar her right to redeem she is 
 a necessary party to the foreclosure suit ; and then if there are 
 surplus moneys in court arising from the sale of the mortgaged 
 premises, she is entitled, as against judgment creditors, to have 
 the amount of her dower, being, in New York, one-third, invested 
 for her benefit and kept invested during the joint lives of herself 
 and her husband, and during her own life in case of her surviving 
 her husband, as and for her dower in such surplus money. This 
 is upon the assumption that land has been sold in which the wife 
 had a legal interest which was not required to pay the mortgage 
 debt, and therefore upon the principle of equitable conversion, the 
 proceeds, so far as it respects her, must be regarded as real estate. 
 {Denton v. JVanny, 8 Barh. E. 618, 623, 624, 626. Vartie v. 
 
 Underwood, 18 ib. 661, 564. Mills y. Van Voorhis, 23 ih. 125. 
 8. a 20 Hr. T. B. 412, 416. Vide also TiUs v. NeHson, 5 
 Johns. Ch. R. 452. Newton v. CooTc, 4 Gray's R. 46. Bell v. 
 The Moyor of New York, 10 Paige^s Oh. JR. 49. Zewis v. Smith, 
 11 JBarb. E. 152. Smith v. Eustis, 7 Greenl. E. 41. Ca^ll v. 
 Butrnxm, II. 102. Cass v. Martin, 6 N. H. E. 25. Van Vronker 
 V. Easbman, 1 Met. E. 157. Walker v. Oriswold, 6 Pick. E. 416. 
 MacculMn v. Cromwell, 2 Harr. db OilVs E. 243.) 
 
 The right of the wife to redeem the mortgaged premises from the 
 incumbrance of the mortgage, and thus entitle herself to dower as 
 against the mortgagee, is now universally recognized in the Ameri- 
 can States. In a very early case, Parker, Ch. J., in discussing this 
 subject, says : " If it should be for the interest of the wife, as in some 
 cases it may be, to redeem the estate, there can be no good reason 
 why she should not enjoy an estate, which, but for an incumbrance 
 which she has removed, would always be subject to her claim." 
 Bolton v. BalloA'd, 13 Mass. E. 227.) And this doctrine is most 
 clearly recognized in a large number of cases decided by the Massa- 
 chusetts courts. ( Vide Snow v. Stevens, 15 Mass. E. 278. Pedbody 
 V. Patten, 2 Pick. R. 517, 519. Gibson v. Cuhon, 5 ib. 146. Eatan v. 
 Simons, 14 ib. 98. Messiter v. Wright, 16 ib. 151, 153. Lund 
 V. Woods, 11 Met. E. 566. Draper v. Baker, 12 Cush. E. 288. 
 MoCabe v. Bellows, 7 Gray^s E. 148.) And perhaps the general 
 doctrine is equally well settled in most of the other states. ( Vide 
 Hcth V. Cocke, 1 Eand. E. 344, 348. Van Duyne v. Thayer, 14 
 
 Wend. E. 233. S. C. 19 ib. 162. Wheeler v. Morris, 2 Bosw. E. 
 
LAW OF BOWER. 543 
 
 524. Rossiter v. Cossit, 15 N. H. B. 38, 43, Sastings v. Stevens, 
 9 Foster's R. 564. Bullard t. Bowers, 10 t5. 500. Adams v. 
 ^«7Z, 75. 202. Furman v. C^ar^, 3 Stockton's Ch. E. 135. iVo^ 
 Ungham, v. Oalvert, 1 Oart&r's [/nd] i2. 527, 529. TTafoo^i t. 6'Zera- 
 <?enm, 6 Blackf. R. 47Y. Rcmrow v. Johnson, 3 ife^. [^.] ^. 578. 
 ^ee<Z V. Morrison, 12 ^e^-g'. cfe Rawle's R. 18, 21. Matthewson v. 
 ^mi^A, 1 AngelVs R. 22. TFi'Z^iws v. French, 20 Jfaiwe i?. 111. 
 Campbell v. Knights, 24 i&. 332. G^^a^e v. Fow^, 25 tJ. 101, 103. 
 SimontonY. Gra/i/,34:ih.50. Moore y. Rollins, 4:&ib. 4:93. Danforth 
 Y. Smith, 23 Fi!. J?. 247. Campbell y. Murphy, 2 Jones' [iT. C] ^^. 
 jB. 357. Daniel v. Leitch, 13 G^i'aiiJ. ^. 195. Manly v, Buchanany 
 1 i!f<Z. C^. Decis. 202. Stewart v. ^ear-c?, 4 ^5. 319. i^^j^ v. Jf^r- 
 chant's Ins. Co. 15 .AZa. ^. 810. Wheatley v. Calhoun, 12 Leigh's 
 R. 264. Stoppelbem y. Shulte, 1 ^*«'s [/SI C] CA. 5. 200. ^e?M- 
 grasji V. Harller, 10 ^*cA. ^g'. ^. 285. Snyder v. Snyder, 6 JftcA. 
 i?. 470.) The doctrine of the American cases upon this subject has 
 been carefully extracted by Mr. Scribner and inserted in his gen- 
 erally very accurate work on dower, and the authorities fuUy cited. 
 (1 Scrib. on Dower, 460-466. Vide also MoArthur v. McArthur, 
 16 Ohio St. R. 193.) A mortgage fraudulently obtained from a 
 wife, does not affect her inchoate right of dower, upon the princi- 
 ple that fraud vitiates every transaction induced by it. {Cownover 
 V. Porter, 14 Ohio St. R. 450.) "Where a husband and wife mort- 
 gaged both real and personal estate to secure a debt, it was held 
 that after the death of the husband the widow might insist upom 
 having the personalty first applied to pay the debt, in order to save 
 her right of dower in the realty. {Harrow v. Johnson, 3 Met. 
 [Fy.] R. 678.) In all cases where the land of the husband is held 
 subject to a lien, the wife may go into equity to have the land sold, 
 and get her dower in the surplus. {Daniel y. Leitch, 13 Gratt. R. 
 195.) 
 
 § 396. It sometimes happens that the rights of both mortgagor 
 and mortgagee meet and unite in the same person, and in these 
 cases the rule is not uniform as to the effect upon the widow's right 
 of dower where the mortgagee becomes himself the owner of the 
 equity of redemption. In a case of this character lately decided 
 by the New Jersey court of errors and appeals, the court remarked : 
 " The mortgagee holding, as against the mortgagor, the legal title, 
 subject only to the condition or equity of redemption, may unite 
 that equitable interest to his legal title, either by foreclosure or by 
 
544 LAW OF COVERTURE. 
 
 the voluntary release or conveyance, of the mortgagor. Such union 
 of the legal and equitable estate extinguishes, or, as the phrase is, 
 merges the equitable in the legal esta,te, and the latter becomes 
 absolute. The estate which was before a fee simple is still the 
 same, but it is relieved of the condition or equity with which :it 
 had been previously incumbered. If by foreclosure, the condition 
 is gone for all piarposes, and the estate is absolute in the mortgagee. 
 If by conveyance, it is bo at law, and if the widow has any right, 
 it is only in equity to TediGem pro tam,to. In such case the mort- 
 gagor does not hold under the subsequent conveyance, but under 
 the mortgage, and, the equity of redemption being extinguished, 
 his title is paramount to the dower title of the wife. It is an 
 entirely different case when, the mortgage having been discharged, 
 the tenant can rely only on the title derived from the husband. 
 He who claims under the husband by conveyance during coverture 
 will hold subject, to the wife's dower. * * * It is diifiicult to 
 see how the prior or subsequent acquisition of the legal title under 
 the mortgage can affect the doctrine of merger. * * * The 
 present seem^ to be the plain case of the equity of redemption 
 united by purchase to the prior legal title of the mortgagee, and 
 thus extinguished at law." {Tkowpsan v. JSoy^, 2 ZahrisMe's M. 
 643.) The reasoning in this case appears to be plausible, but the 
 conclusion to which the court arrived, viz., that the wife was 
 deprived absolutely of her right to dower, without having joined 
 in the absolute conveyance, will not generally be accepted as 
 correct. The most that could be required of the widow in such a 
 case would be that she should pay the fuU amount of the mortgage ; 
 probably she should be required only to pay her due proportion of 
 the mortgage debt, when her right of dower would attach ; and 
 this is according to the better authority. {Vide Yarn, Vronker\. 
 Eastman, 7 Met. {Mass.} B. 157. Lund v. Woods, 11 ib. 566. 
 Campbell v. Knights, 24 Maim B. 332. Wood v. Wallace, 10 
 Foster's B. ,384. Snyder v. Snyder, 6 Mich. B. 470. Keith v. 
 Trailer, 1 Bailey's Ch. B. 63. Bussel v. Austin, 1 Paige's Ch. 
 B. 192. Bunyam, v. Stewart, 12 Barb. B. 537.) And it has been 
 held in New York that when the tenant in possession enters by 
 virtue of a purchase of the equity of redemption from the mort- 
 gagor for purchase-money, and then buys the mortgage, and takes 
 an assignment to himself, this extinguishes the mortgage, and the 
 widow of the mortgagor is entitled to her dower, and that in such 
 
LAW OF DOWER. 545 
 
 case her right relates back to the purchase of her husband. {Ooates 
 V. Cheev&r, 1 Cow. M. 460, 479.) But unless the grantee of the 
 husband took his conveyance subject to the mortgage in such a 
 case, probably the wife would be obliged to contribute her propor- 
 tion of the mortgage debt before her right of dower would fully 
 attach. 
 
 § 397. As the husband must be seised of or entitled to the entire 
 inheritance at some time during the marriage, the wife, at common 
 law, is not entitled to dower of a reversion or remainder, and hence, 
 if the estate of the husband be subject to ah outstanding freehold 
 estate which remains undetermined during the coveture, the right 
 of dower does not attach. The freehold and the inheritance must 
 be consolidated, and be in the husband simul et s€n\el, " at once 
 and together," during the marriage to render the wife dowable. 
 (4 Kenfs Com. 39.) This is the plain language of text writers, 
 and yet there are authorities which render the true doctrine quite 
 uncertain. It appears that the courts, in their leaning in favor of 
 and with a view of sustaining the right of dower, have been satis- 
 fied with a kind of svh modo union of the two estates. And' 
 accordingly it has been decided that the union will be regarded as 
 sufficient to create the title to dower, when an estate for years 
 intervenes between the particular estate and the remainder. {Bates 
 V. Bates, 1 Ld. Baym. B. 326.) But the doctrine is well settled, 
 that the wife is not entitled to dower in a vested remainder in fee 
 belonging to her husband, limited on a precedent estate for life, 
 because the husband must have been seised in fact or in law, in 
 fee simple, at some time during the coverture, to entitle «the wife 
 to dower ; the seisin must be an actual corporeal seisin, or a right 
 to such seisin, and there can be no seisin in deed or in law, of a 
 vested remainder limited on a precedent freehold estate. 
 
 The question whether the interposition of a contingent estate or 
 freehold between a limitation to the husband for life and a sub- 
 sequent remainder to his heirs will prevent dower, is elaborately 
 discussed by Mr. Park, Mr. Scribner and others who have treated 
 specially upon the subject of dower ; but it would be of little use 
 to enter into this abstruse learning here, as it has been well said 
 that " such recondite points rarely occur." (4 Kent's Com. 40, note 
 h.) Lord Hale states the general doctrine thus : " If the contin- 
 gent remainder cannot take effect immediately on the first 
 determination of the particular estate, whether it be determined 
 69 
 
546 LAW OF COVSBTUBE. 
 
 by merger or surrender, or in any other way whatsoever, it will 
 never vest afterward, though the particular estate should come in 
 esse again. * * * "When an estate in esse and a contingent 
 remainder over to him who had the first estate in esse are united 
 together by one and the same conveyance, then the remainder in esse 
 ■ is vested until the contingent remainder comes in esse, and then 
 the estate shall be opened and disjoined by the letting in of the 
 contingent remainder, because they were all created together by 
 the same conveyance, and therefore the estates shall be opened and 
 closed as appointed by the original conveyance ; but otherwise it is 
 when the remainder in esse comes to the particular estate by any 
 grant or conveyance made after the original conveyance, for then 
 the contingent remainder will be destroyed." {Purefoy v. Rogers, 
 2 Saund. B. 380, 387.) 
 
 " Whenever a greater estate and a less coincide and meet in the 
 same person, without any intermediate estate, the less is immediately 
 annihilated ; or, in the law phrase, is said to be merged; that is, 
 sunk or drowned in the greater." (2 Black. Com. 177.) In such 
 case, the intervening . contingent interest would seem to inter- 
 pose no obstacle to the attachment of dower. Mr. Scribner gives 
 it as the result of the adjudged cases, and the concurring opinion 
 of many of the writers on the law of real property, " that when a 
 contingent estate of freehold is interposed between a limitation to 
 the husband for life, and a subsequent remainder to his heirs, the 
 remainder is executed in possession in the tenant for life sub modo ; 
 or, in other words, that the estates are consolidated or united unUl 
 the happening of the contingency ; but with the qualification 
 annexed to such consolidation, that if the contingency happen, 
 they shall again divide, and resume the character of several or dis- 
 tinct estates, so as to let in the estate limited upon that contingency. 
 And it appears to be the prevailing opinion that upon this union of 
 the freehold and inheritance svh modo, a right of dower attaches, 
 subject to a liability to be divested upon the happening of the con- 
 tingency, and the consequent vesting of the contingent estate." 
 (1 Scrib. on Dow. 227, 228.) But except in cases of express statute, 
 the authorities are quite uniform, that a wife is not entitled to dower 
 in a vested remainder in fee limited on a precedent estate for life, 
 nor in an estate in reversion expectant upon an estate of freehold.^ 
 ( Vide Oreen v. Putnam, 1 Barb. B. 500. Beardslee v. Beardslee, 
 5 ib. 324, 332, Durando v. Durando, 32 ih. 529. Dunhwm v. 
 
ZAW OF DOWEB. 547 
 
 Osbom, 1 Paige's Ch. B. 634. Bates' case, 1 Salk. JR. 354. 
 Eldredge v. Forrestal, 7 Mass. B. 253. ^wA v. Eastmwn, b N. H. 
 
 B. 240. JfooTO V. Esty, lb. 469. JSforthcutt v. W%*>jp, 12 -S. 
 Jfo«. B. 65. TTe^r v. Humphries, 4 /redZ: ^'g'. ^. 273.) 
 
 § 398. If a man demise his estate to a person for life, reserving to 
 himself and heirs a rent, and then marry, and die before the lessee, 
 his widow will not be entitled to dower, either of the reversion or of 
 the rent ; not of the reversion, because the husband had no legal 
 seisin of the freehold during- the marriage; nor of the rent, because 
 it partook of the nature of the estate out of which it was reserved, 
 and the husband had only a freehold interest in the rent, although 
 it might descend to his heirs. {Darcy v. Blake, 2 Sch. <& Leff. B. 
 387.) But if a lease for years be made before the lessor marries, 
 his wife will be endowed of both the reversion and the rent as 
 incident to it; provided always that the term expired during 
 coverture ; and it has been held that a widow is entitled to dower 
 in rents of lands leased by her husband, notwithstanding she 
 executed a release to the lessee of her dower right; that such 
 release only has the effect of a confirmation of the tenant's estate, 
 and is not an abandonment of her dower as between herself and her 
 husband's heirs. ( Williams v. Cox, 3 Edw. Ch. B. 178. Bamks v. 
 Sutton, 2 P. Wms. B. 716. Shrewsbury v. Shrewsbury, 2 Bra. 
 
 C. C. 120. Tracy v. Hereford, lb. note. Wheatley v. Best, Cro. 
 Eliz. 564.) She cannot, however, claim dower in rents which 
 accrued after the death of her husband. Her remedy in such a 
 case is against the heirs for detention of her dower. ( WilUain- 
 son V. Ash, 7 Ind. B. 495.) 
 
 The widow is not entitled to dower of an estate held by the hus- 
 band in joint tenancy, if he die before the other joint tenant, 
 because the claim of the surviving joint tenant is paramount to 
 the widow's title, by survivorship under the original conveyance. 
 The seisin of the husband must in all cases be sole by the rules of 
 the common law. Littleton states the rule : " And it is to be 
 understood that the wife shall not be endowed of lands or tene- 
 ments which her husband holdeth jointly with another at the time 
 of his death." {Co. lAtt. 30.) This rule is imperative and 
 universal except in those states where the jus accrescendi has been 
 abolished. A severance of the jointure by an act of the husband 
 which at the same time passes the fee of his moiety will not entitle 
 his widow to dower. {Co. lAtt. 31 J.) 
 
548 LAW OF COVERTURE. 
 
 But the law lias been greatly modified in the United States with 
 respect to estates held in joint tenancy, and in several of the states 
 the jus aooresoendi has been expressly abolished. Thus, the right 
 of survivorship is substantially taken away in Maine, New Hamp- 
 shire, Vermont, Massachusetts, Connecticut, Ehode Island, New 
 York, New Jersey, Pennsylvania, Delaware, Maryland, Michigan, 
 Ohio, Wisconsin, Illinois, Minnesota, Iowa, Missouii, Mississippi, 
 Tennessee, Kentucky, Arkansas, Texas, California, Alabama, 
 Georgia, Florida, North Carolina and Virginia, although there is 
 occasionally an exception in cases of executors, administrators and 
 the like, none of which affect the question of dower, and it is well 
 understood that when the Jiia accrescendi is abolished, the impedi- 
 ment to dower created by the common law of survivorship is effect- 
 ually removed. {Vide Hollrook v. Firmey, 4 Mass. B. 566. 
 Davis V. Zogcm, 9 Dana's B. 185. Weir v. Tate, 4 Ired. Eq. B. 
 264. Beed v. Kennedy, 2 Strrobh. B. 67. Segrant v. Steiniergev, 
 
 2 Ohio B. 306. Miles v. Fisher, 10 ih. 1. Ta^he v. Wiseman, 2 
 Ohio St. B. 207. Phelps v. Jepson, 1 Boofs B. 48.) But the 
 widows of tenants; in common or coparceners may claim dower, 
 since tenants in common and coparceners have several inheritances 
 which descend to their respective heirs ; so that a title to dower 
 necessarily arises out of the seisins of their husbands. {Litt. § 45. 
 Sutton v. Bolf, 3 Levinz. B. 84. Potter v. Wheder, 13. if ass. B. 
 504. Mosher v. Mosher, 32 Maine R. 412. Wilkinson v. Parish, 
 
 3 Paigeh Ch. B. 653. Totten v. Stuyvesant, 3 Mw. Ch. B. 500. 
 Dolf^. JBassett, 15 Johns. B. 21. Jackson v. Edwards, 22 Wend. 
 B. 498. Damis v. Logan, swpra.) 
 
 § 399. At common law a widow is not entitled to dower of a 
 trust estate, for the reason that so far as dower is a legal remedy, 
 and is to be pursued by legal remedies, it is obvious that the 
 estates in respect of which it is claimed, can be such only as have 
 existence in the contemplation of a court of law. And it is now 
 well settled that the wife of a trustee is not dowable in equity of 
 the trust estate, and a widow was never allowed dower of a use. 
 ( Vide Powell v. Monson, 3 Mason's B. 347, 364, 366. Germond 
 V. Jones, 2 EiWs B. 569. Cooper v. Whitney, 3 ik 101. Cow- 
 mam V. Mall, 3 Oill <& Johns. B. 398. Ifoel v. Jevon, 2 Freem. 
 B. 43. Bevam v. Pope, lb. 71. Stevens v. Smith, 4 J". /. 
 Marsh. B. 64. Small v. Proctor, 15 Mass. B. 495. Stanwood v. 
 Dunmmg, 2 Shep.B. 290. Gomes v. Tradesmen's Bank, 4 Sand. 
 
LAW OF DOWER. 549 
 
 R. .102. Herron v. Williamson, 6 Ziti. B. 250. Ldwson v. Mor- 
 ton, 6 Dana's H. ill. Bartlelt v: 6'oMy6, 5 B. Mon. B. 152. 
 Edmondson v. TTeZsA, 27 J.Za. i?. 578. Derush v. Brown, 8 OAio 
 ^. 412. Firestone v. Firestone, 2 CAio <Si(. -S. 415. ,MoNish v. 
 Pope, 8 ^icA. ^2'. ^. 112. Crittenden v. Johnson, 6 ^p'. [J.?-^.] 
 J?. 94. Lenox v. Notrehe, 1 Hemp. B. 251. James v. Bowan, 6 
 /Sme(?es <£ JtfcwsA. i2. 393.) 
 
 But wlien the husband becomes entitled both to the equitable 
 estate and legal fees, the equitable estate will merge in the legal 
 estate, and the widow will be entitled to dower. {Tulley v. Alston, 
 3 Ves. R. 339. Rophinson v. Dumas, 42 N. S. E. 296. And 
 vide Bdbison v. Codman, 1 Sunvn.- R. 121.' Z>ea»i v. Mitchell, 4 
 J". J. Marsh. B. 451. Cosfer v. <7Za?'/5», 3 Edw. Ch. R. 428.) 
 However, the union of the legal and equitable estates must be per- 
 fect, or the widow will not be entitled to her dower. {Knight v. 
 Knight, 4 Bea/o..R. 10. Lyster t. Mahoney, 4 Drury c& WarrerCs 
 R. 286.) 
 
 In the State of Pennsylvania, the widow is entitled to dower in 
 trust estates, and it is possible a similar rule prevails in one or two 
 others of the American States. {Shoemaker v. Walker, 2 8erg. & 
 BamoWs R. 556.) 
 
 In many of the states, where the equity of the husband is per- 
 fect and complete, and his interest is of such a character that if it 
 were a legal estate it would be subject to dower at common law, 
 the right of the widow to be endowed thereof is recognized ; and 
 in some of the states dower is allowed unqualifiedly in equitable 
 estates. "Where the equity of the husband is perfect and complete, 
 the widow has her dower in Yirginia, Kentucky, New Jersey, 
 Pennsylvania, Alabama and Mississippi, and in the District of 
 Columbia; and in New York, Maryland, North Carolina, Ohio, 
 Illinois, Iowa, Ehode Island, Tennessee, Missouri and Kansas, 
 dower is allowed in all equitable estates. (1 Scrihner on Dower, 
 ZSi:, Z^b, amd authorities there cited.) 
 
 It is understood that when the widow is entitled to dower in 
 equities, her right is restricted to such equitable estates as the hus- 
 band held at the time of his decease ; and this is especially the rule 
 with respect to equitable interests acquired under executory con- 
 traetSj (1 Sor^ner on Dower, 389. 1 Washh. Real Prop. § 14.) 
 The principle '^extends only to those cases in which the equitable 
 interest of the husband in the trust property continues down to the 
 
650 ZAW OF COVERTURE. 
 
 time of his death, so as to be inheritable by his heirs. And if he 
 aliens it in his life-time, the widow will not be entitled to dower 
 therein as against the grantee." {JSawley v. James, 5 Paige^s Ch. 
 B. 318, 453.) And this is the dpctrine of the authorities. (Pritts 
 T. Ritchey, 29 Penn. E. 11. Purdy v. Pwdy, 3 Md. Ch. Becis. 
 54Y. Rands v. Kendall, 16 Ohio B. 6Y1. Wooley v. Magie, 26 
 III. B. 526. Barnes v. GoAf, 7 ClarMs [Iowa] B. 26. Zobdell 
 T. Rayes, 4 Allen's. B. 187, 191. Beed v. Ford, 16 B. Mon. B. 
 114. Edmondson v. Montague, 14 ^to. i2. 370.) 
 
 § 400. A widow is dowable in lands devised to her husband in 
 fee, although the estate is defeasible on his death without surviving 
 issue. (Kenedy v. Kenedy, 5 Butch. B. 185.) But if the husband 
 execute a warranty deed for lands in which he has no title, and 
 afterward obtains a patent for the same lands from the United 
 States, and dies, his widow is not entitled to dower in such lands. 
 The rule would probably be different if the conveyance by him 
 had been by quitclaim instead of a warranty deed. ( Wooley v. 
 Magie, 26 Bl. R. 626.) 
 
 When buildings are burned on lands in which a widow has a 
 dower right, and the same are insured, she is entitled to her portion 
 of the insurance money. {Campbell v. Murphy, 2 Jonei Eq. B. 357.) 
 
 Wheat growing upon land set off to a widow as her dower, 
 belongs to her, and not to the heirs of her husband. {Ralston v. 
 Balston, 3 Iowa R. 533.) But grass and fruits growing at the 
 intestate's death go with the land, and the widow is not entitled to 
 any part of them as dower. If, however, the land is assigned to 
 her, she takes the whole. {Kain v. Fisher, 6 W'. Y. R. 597.) 
 
 The widow is entitled to dower in land sold upon execution 
 during the year for redeeming. {Russell v. Austm,, 1 Paiges Ch. 
 R. 192.) 
 
 A widow is not entitled to dower in a land contract held by her 
 husband at the time of his death, in which he had paid only a part 
 of the purchase-money. {Pritts v. Ritchey, 29 Penn. R. 71. Vide 
 also Owen v. Rdbbins, 19 III. R. 545.) But she is entitled to 
 dower in lands paid, for and covenanted to be conveyed to her 
 husband. {Thompson v. Thompson, 1 Jones' [_J!f. C] R. 430. 
 Reed v. Whitney, 7 Gray's R. 533.) 
 
 In Kentucky it is held that stock in a railroad company is real 
 estate, and subject to the widow's right of dower. {Price v. Price, 
 6 Bana's R. 107.) But in the State of Florida it was held that 
 
LAW OF DOWER. 551 
 
 the wife is not entitled to dower in shares of stock in a land com- 
 pany, which the husband had disposed of during his life. {Mo- 
 Donough v. Hepburn, 5 Florida E. 568.) 
 
 Dower cannot be recovered upon dower, but this rule applies 
 only where dower has been actually assigned, and an outstanding 
 right of dower in one cannot affect the right of a widow subse- 
 quently entitled to dower. A release by the former widow to the 
 owner of the fee, before assignment, operates as an extinguishment 
 of her rights. {Elwood v. Klock, 13 Barb. H. 50.) And to an 
 action of dower, a prior right of dower which has been released 
 to the tenant without being enforced, is no' defense. {Lea/vittY, 
 Lam/prey, 13 Pick. B. 382. And vide Atwood v. Almood, 22 
 ib. 283.) 
 
 In equity, lands agreed to be turned into money, and money into 
 lands, are considered as that species of property into which they 
 were agreed to be converted ; and the right of dower is regulated 
 in equity by the nature of the property in the equity view of it. 
 (4 Kenfs Com. 50. Oreene v. Greene, 1 Ham. [(?.] B. 538. 
 Coster V. Clarice, 3 Edw. Ch. B. 4T.) This is upon the principle 
 of equitable conversion, which is well understood by equity 
 lawyers, and is defined to be " that change in the nature of prop- 
 erty by which, for certain purposes, real estate is considered 
 as personal, and personal estate as real, and transmissible and 
 descendible as such." {Franois' Maxims, Mam. 13.) 
 
 § 401. The general rule is that the right of dower does not 
 attach to lands appropriated to public uses. This was held at the 
 period when castles were built and held for the protection and 
 defense of the kingdom of Great Britain, the law in this respect 
 preferring the public good to private individual claims. Upon the 
 same principle the courts, at a later day, have held that the inchoate 
 right of dower is extinguished in lands legally appropriated to the 
 uses of the public. Thus, it has been held that the widow is not 
 entitled to dower in lands dedicated to the public, by the husband, 
 for a market-house. The court, in deciding the case, observes: 
 " The whole space became subject to the same regulations as the 
 grounds originally laid out in streets, and for other public uses 
 and purposes. The claim of dower must stand upon the same 
 principle that it would stand in any case to the ground thus appro- 
 priated. The counsel for the complainants insist that it is a case to 
 be distinguished from that of public grounds condemned for public 
 
562 LAW OF COVEBTURE. 
 
 uses, but the court are ixnable to comprehend the distinction. 
 When a town is laid out, the law requires the plat to be recorded, 
 and by such record the streets become public highways, and the 
 title to the grounds set apart for public uses is vested in the county 
 for the purposes contemplated. The uses thus created are incon- 
 sistent with the exertion of any private right while the use remains, 
 consequently all private rights must be either suspended or abro- 
 gated. Such has been the general understanding, not only in this 
 state, but, so far as wc are informed, in other states also. A claim 
 of dower in the streets of a town, or in the public jail, court-house 
 or public oflSces, would be a novel one, and if sustained could not 
 be enjoyed without defeating the original purpose and present use 
 of the grant. It cannot be admitted, for the same reason that it is 
 not admitted to a castle in England. It could yield nothing to the 
 support of the widow, by a direct participation in the possession, 
 without such an interference with the public right to control the 
 whole subject as to render its enjoyment inconvenient and unsafe, 
 if not impossible." [Gwynne v. Gmcinnati, 3:OMo B,. 24.) 
 
 The same rule is held where the land is appropriated by an act 
 of the legislature. Thus, where land was taken by the authori- 
 ties of the city of New York under an act of the staite legislature, 
 for the purposes of a public market, the court held that the land 
 was discharged of any claim of dower, saying: "The question 
 which is now presented is, whether a wife has such an interest in 
 the premises owned by her husband, while her right of dower is 
 inchoate, as cannot be divested by this act of the legislature and 
 the proceedings under it. * * The power of the state to take 
 private property for piiblic uses, results from its right of eminent 
 domain, and that power is not restricted except by the constitu- 
 tional provision that just compensation shall be made to the owner 
 of the entire estate in the land, and the inchoate right of the wife 
 was not considered by ;the commissioners, and we think justly so, 
 as an interest distinct from that of her husband, as the subject of 
 estimate as to its value, separate from his. Indeed, the value 
 of her interest, such as it was, would seem to be scarcely capable of 
 being estimated as a separate interest. We see no reason to doubt 
 that the commissioners were right in considering the entire estate in 
 these- lands as vested in the husband, and that he haVing been paid 
 the full value of them, the corporation, by force of the act, became 
 seised of the lands in fee simple absolute, discharged of any claim 
 
DOWER, BOW BARBED. 553 
 
 of dower of the wife therein." {Moore v. TJie City of New TorTe, 
 4 Sandf. B. 456, 460. S. C. 8 N. T. R. 110.) Other authorities 
 might be referred to upon the same subject, but it is unnecessary. 
 The rule excludes dower in all cases where lands are legally appro- 
 priated for the purposes of streets and public highways, railroads, 
 jails, court-houses, burial-grounds, market places, and the like; 
 and in some cases burial-grounds are exempted from dower by 
 statute. (1 Scribner on Dower, 555. Weaver v. Gregg, 6 Ohio St. 
 H. 547. lAttle Maimi H. H. Co. v. Jones, 5 Weekly Law Gas. 
 [If. S.] 5. Melisefs appeal, 17 JPenn. H. 449. Kennerly v. Mis- 
 souri Ins. Co. 11 Missouri E. 204. Strong v. Clemj 12 In,d. E^ 
 37. Giles v. GulUm, 13 ib. 487. JVoel v. Moing, 9 ib. 37.) 
 
 In a word, the widow is entitled to dower in all lands and tene- 
 ments in which her husband was seised during coverture, unless 
 she is lawfully barred, and in some instances she is dowable in the 
 equities and trusts of which her husband was possessed at the time 
 of his decease, except that in some states the widow's, dower is 
 limited to the lands and tenements, both legal and equitable, of 
 which her husband died seised. 
 
 CHAPTEE XXVIII. 
 
 HOW DOWEE IS BAitEED OE PEEVENTED EAELT DEVICES TO EFFECT 
 
 IT wife's EELEASE CONVEYANCE BY HUSBAN^D BEFOEE MAE- 
 
 EIAGE — THE WIFe's JOINTUEE — DEVISE EST LIEU OF DOWEE — SALE 
 
 ON EXECUTION AISTD FOE TAXES — DIVOEOE ADULTEET OP THE 
 
 WIFE AETTCLES OF SEPAEATION — ESTOPPEL OF THE WIFE. 
 
 § 402. Many are the devices which have been invented for the 
 purpose of barring or preventing dower, but most of them have 
 failed to answer the end proposed, without being attended in other 
 respects with hazard and inconvenience. The first limitation 
 contrived was " to the purchaser and his trustee, and their heirs, 
 in trust for the purchaser and his heirs ; " the effect of which was to 
 vest a legal joint tenancy in fee in the husband and his trustee, 
 with the beneficial interest of the trustee's share in the purchaser,- 
 and the widow of a joint tenant is not entitled to dower. But if 
 the husband survived his tmstee, he became at once solely seised 
 70 
 
554 LAW OF COVUBTUBE. 
 
 of the inheritance, and the right of dower immediately attached to 
 that seisin. This method to exclude dower, therefore, failed. 
 
 An improvement was then attempted by grafting upon the limi- 
 tation, " to the purchaser and his trustee, and the heirs of the 
 trustee, in trust for the purchaser;" or "to the trustee and his 
 heirs, in trust for the purchaser and his heirs." But serious 
 objections were soon discovered to this ; for the trustee might die 
 without an heir, and then the estate would escheat to the crowM, 
 or, if the trustee left an heir, that person might be a minor, a mar- 
 ried woman or a lunatic, in which cases it might be difiicult to 
 procure the proper conveyance of the legal fee-simple. The 
 objections, therefore, to the adoption of these limitations, were such 
 as to induce a perseverance in the attempt to frame a more eligible 
 limitation in these cases, until finally two forms were adopted 
 which seemed to answer the end desired. One form of limitation 
 was " to such uses as the purchaser shall by deed, etc., appoint, and 
 in default of, appointment to the use of himself for life, without 
 impeachment of waste ; and from and after the determination of 
 that estate in his life-time, by forfeiture or otherwise, to the use of 
 a trustee and his heirs, or his executors and administrators, during 
 the purchaser's life, in trust for him for life, and from and after the 
 determination of the estate so limited in use to the trustee and his 
 heirs, or his executors and administrators, during the purchaser's 
 life, to the use of the purchaser, his heirs and assigns forever." 
 
 The other form was, " to such uses as the pui'chaser shall by 
 deed or will appoint ; and for want of appointment to the use of a 
 trustee, his heirs and assigns, or executors and administrators, 
 during the life of the purchaser, in trust for him, and subject 
 thereto, to the use of the purchaser, his heirs and assigns." These 
 limitations, with some slight variations, were in general use in 
 England until 1834, when, by the late dower act, a man was enabled 
 to prevent his wife's dower from attaching by a declaration to that 
 effect in the deed of purchase, or any deed executed by him. 
 (3 and 4 William IV, ch. 106, § 6. Vide also Pa/rk on Dower, 83 
 et seq) 
 
 § 403. The usual way of barring dower in this country is for the 
 wife to join with her husband in the deed of conveyance, although 
 she must use apt and proper words of grant and release on her own 
 part, and such as clearly manifest an intention to relinquish her 
 dower, for the instrument is not the wife's deed if the husband by 
 
DO WEB, SOW BARBEV. 555 
 
 the direction of the wife and in her presence, put her name to it 
 without any manual act on her part, notwithstanding she subse- 
 quently acknowledge it in the usual manner ; and therefore in such 
 a case the deed will not bar the widow's dower. ( Vide Linsley v. 
 Brown, 13 Conn. B. 192. Oatlin v. Ware, 9 Mass. E. 218. Luf- 
 Tcin V. Curtis, 13 ih. 223. Stearn^s v. Swift, 8 Pick. R. 532. 
 Zeavitt v. Lamprey, 13 ib. 382. Melpin v. Locks, 16 i5. 137. Hall 
 V. Savage, 4 Mason's R, 273. Powell v. Monson and Bri/mfield 
 Manufacturing Company, 3 ih. 347. Stevens v. Owen, 25 Mavne 
 P. 94. G^o?-<2on. v. /Siewews, 2 HilVs Oh. P. 48. Fes^/aZi! t. Lee, 7 
 Clarke's [Iowa'] P. 12. Put vide Frost v. Peering, 21 Mavne P. 
 156.) But if the wife was not of full age at the time of executing 
 the deed, or if the deed does not contain apt words showing her 
 intention to relinquish her dower, she will not be barred, though 
 she has signed and sealed the deed and made the statute acknowl- 
 edgment. {Priest V. Cumndngs, 16 Wend. P. 617. MarJcham t. 
 Merritt, 7 Sow. [Miss.] P. 437. Thomas v. Gomel, 6 Leigh's P. 9.) 
 And the deed of an adult married woman, executed by her alone, 
 relinquishing her dower in land previously conveyed by her hus- 
 band by his separate deed does not bar the widow of her dower. 
 {Page v. Page, 6 Cush. P. 196. Vide also Podge v. Aycrigg, 1 
 Peasley's [iT. J.] P. 82.) Although a mortgage executed by the 
 husband, his own name alone being used in the body of the instru- 
 ment, but signed by his wife also, who relinquished her right of 
 dower and made her acknowledgment in an after part of the instru- 
 ment, and there being sufBcient from an inspection of* the whole 
 instrument to believe that the intention of the parties was to con- 
 sider the whole paper as forming one assurance, was held by the 
 supreme court of the United States to bar the wife of her dower 
 as far as the mortgaged premises were concerned. (Dundas v. 
 Hitchcoch, 12 How. \_U. S.] P. 256.) 
 
 The deed must in many of the states be separately acknowledged 
 by the wife, after a private examination apart from her husband, 
 and such acknowledgment must be certified by a competent oflScer 
 and in the mode pointed out by statute ; and if the acknowledge- 
 ment or certificate of the magistrate be not in strict compliance 
 with the statute, the deed is void as to the wife, and her right of 
 dower is not thereby barred or discharged. ( Vide KirTi v. Beam,, 
 2 Bimn. P. 341. Molntire v. Ward, 5 ib. 296. Shatter v. Brand, 
 6 ib. 435. JEvans v. The Oorwmomjoealth, 4 Serg. & Pawle's P. 272. 
 
556 ZAW OF COVERTURE. 
 
 Jowdcm V. Jourdmiy 9 ib, 268. Sha/re v. Anderson, 7 t5. 43. 
 CasseZ V. Cbo^, 8 ih. 268. Barnei v. Bwfnet, 15 *5. 72. xSfe^^c v. 
 Thompson, 14 t'5. 84. Thompson v. Morrow, 5 i5. 289. Jamison 
 V. Jamison^ 3 TTAasr^. i?. 457. Soanlar v. Turner, 1 Bailey's R. 
 421. TPafeon V. Bailey, Ih. 470. Middoch v. WilUams, 12 (?A«(? 
 i2. 377. Connell v. Conrvell, 6 i5. 353. Jackson v. Stevens, 16 
 Johns.. B. 110. Jackson v. Cajvrns, 20 *5. 301. Sheppard v. TFb?"- 
 (^eZZ, 1 Cboj's ^. 452. CZa/-^ v. Redman, 1 Blackf. R. 379. ^«zo!! 
 T. Pier sol, 1 McLean^ s R. 11. Rogers y. Moody, 23 Jfo. ^. 548.) 
 But by ancient custom in some of the states, dower was barred 
 if the wife simply joined with the husband without making any. 
 separate acknowledgment. ( :F*<^ Constantine v. Fan. Winkle, 6 
 .Z?2:?Z's iJ. 177. Durant v. Ritchie, 4 Mason's R. 45.) And in 
 some of the states the wife might formerly bar her dower by a 
 sispfflT-afedeed, executed after and in consideration of her husband's 
 sale, and conveyance. (^Fowler v. Shearer, 7 Mass. R. 14. ^a v. 
 Cord, 2 If. H. R. 176. Shepherd m. Howard, II. 507. ^owe v. 
 Ha/inilton, 3 Oreenl. R. 65. , Thompson r. Peebles, 6 Dances R. 
 391.) Of course, in these states, as in Connecticut, Yermont, 
 North Carolina, Tennessee, Georgia, Mississippi, New Hampshire, 
 and perhaps one or two others, where the right of dower is 
 restricted to the lands of which the husband died seised, the hus- 
 band's conveyance independent of his wife bars her dower. But 
 in most of the states, as in Alabama, Arkansas, Delaware, Florida, 
 Illinois^ Iowa, Kentucky, Kansas, Maine, Maryland, Massachusetts, 
 Michigan, Minnesota, Missouri, New Jersey, New Tork, Ohio, 
 Oregon, Ehode Island, South Carolina, Virginia, "Wisconsin, and 
 in the District of Columbia, the concurrence of the wife is necessarv 
 to divest her of her right of dower in all legal estates ; though in 
 case of an equitable estate, the husband may transfer it alone at 
 any time before his decease, and. thus cut off the dower right of 
 his wife. In Pennsylvania the common law rule applies the same 
 as in the last above mentioned states, except that " the widow's 
 right of dower, though much respected, is liable to be defeated by 
 a judicial sale for the payment of debts ; and on a mortgage after 
 coverture not executed by the wife, by a sale or judicial process, 
 her dower is defeated." {Reed y. Morrison, 12 Serg. db Ramie's 
 R. 18, 21.) But the rule is limited to judicial sales, and does not 
 extend to transfers made by the husband. "Dower would be 
 altogether insecure if the husband might bar it by a voluntary 
 
, DOW£!S, MOW BARRED, 557 
 
 Bale for payment of a debt, however smallj even when incurred to 
 serve for a pretext. For that reason it was ruled in JEherle v. 
 Fisher (1 Hams' E. 526) that a husband's assignment in insol- 
 vency does not divest his wife's dower in the land, inasmuch as it 
 was not, at the time, in the gripe of his creditors. In the present 
 case the husband was free to do with it what he pleased, but 
 always in subordination to the incipient estate of his wife. Had 
 he sold it himself, and paid his debts with the price of it, her 
 dower would have remained in it, and his sale can have no other 
 effect when made by the instrumentality of trustees appointed and 
 empowered by him." {Hel/rich v. Obermyer, 15 Penn. Hi 113.) 
 And it was said in a recent case : " Our common law dower exists 
 only in relation to land sold by the husband without his wife's 
 consent ; and dower in such case may generally be very unjust ; for 
 thus a widow may be endowed of land sold by her husband in his 
 life-time, and yet share in other estate, real and personal, that may 
 have been obtained by the sale of it." {Pritts v. Pitchey, 29 
 Penn. P. 11.) 
 
 § 404. A release to the husband by the wife during coverture is 
 no bar of the dower. {Powe v. Sarnilton, 3 Greenl. P. 63. \Ela 
 V. Card, 2 W- S. P. 176. Grain v. Cmana, 36 Barb. P. 410.) 
 Nor is a release by the wife to a third person under whom the 
 tenant does not claim, a bar to the widow's dower. {PoVmson v. 
 Bales, 3 Md,. P. 40. SKoajo v. Poss, 14 Maine P. 432.) And it 
 has been held that a contract before coverture not to claim dower 
 is no bar. {Hastings v. Hichmson, 7 Mass. i2. 153. Gibson v. 
 Gibson, 15 ih. 106. Croadl v. Ingraham, 13 Pick. R. 33. Vamce 
 V. Vance, 21 Maine P. 364.) An instrument purporting to release 
 a widow's dower, signed by her, but not sealed, is not a release of 
 her dower. {Giles v. Meore, 4 Gray's P. 600.) But a quitclaim 
 deed from two grantors, signed and sealed by each of them, and 
 signed by their wives, with one seal against both signatures, and 
 concluding, after the clause of release of dower, "in witness 
 whereof, we, the grantors, have hereunto set our hands and seals," 
 is sufficient to bar the dower of the wives. {Tasker v. Bartlett, 5 
 Gush. P. 359.) 
 
 "When the widow conveys to the administrator of her deceased 
 husband aU her " right, title and interest of dower," her dower in 
 the lands, and share in the personal property of her husband 
 pass. {McFarland v. Baze, 24 Miss. P. 156.) 
 
658 LAW OF COVERTURE. 
 
 The wife's release of dower in mortgaged premises will not bind 
 the wife and defeat her dower if the mortgaged estate is subse- 
 quently redeemed by the husband's administrator. {Hildreth v. 
 Jones, 13 Mass. E. 626.) But after the wife has duly released her 
 claim to dower in the mortgaged premises, and the husband's 
 equity of redemption is subsequently sold by his administrator, 
 and the estate redeemed by the purchaser, it has been held in 
 Massachusetts that the widow will not be entitled to dOwer. 
 {PopTevn v. Burnstead, 8 Mass. B. 491. Gibson v. Crehore, 3 
 Bick. B. 4:75.) 
 
 A release of dower will not be presumed from the fact that- the 
 premises on which dower is claimed were in the adverse posses- 
 sion to the husband for more than twenty years during his life- 
 time. {Durham v. Angier, 20 Maine B. 242.) Nor will a release 
 of dower by the wife to one tenant in common, of her husband, 
 operate as a release to the other. {White v. White, 1 Harris. 
 \_N. J.'\ B. 202.) And a parol release is void. ( Worthvngton v. 
 Middlet07i, 6 Dana^s B. 300.) 
 
 A release of dower can operate only as a release / it must accom- 
 pany the conveyance of another, and ceases to operate with that ; 
 it cannot operate as the transfer of an independent estate. Thus, 
 when a Imsband, whose land is bound by the lien of a judgment, 
 conveys the land with a release of dower, and the land is after- 
 ward sold under the judgment, the purchaser from the husband 
 cannot claim as an assignee of the wife, or as deriving a distinct 
 estate from her, against the execution purchaser. So, upon the 
 sale of mortgaged lands, the vendee takes them clear of dower, if 
 released ; but if the mortgage is paid, never takes eflFect, or ceases 
 to operate, the right of dower revives. {Douglas v. McCoy, 6 Ohio 
 B. 527. Pride v. Boyce, 1 Bice's Eg_. B. 275.) 
 
 The wife may bar her dower in a particular close, even before 
 it is assigned, by executing a quitclaim deed after the husband's 
 death, in which she covenants that she will claim no dower in the 
 premises. {Gra/nt v. Perham,, 15 Vt. B. 649. Thatcher v. How- 
 land, 2 Met. B. 41.) Under some circumstances, although the wife 
 do join with her husband in the deed, she does not thereby lose 
 her dower ; as when, after the execution of the deed, the purchaser 
 recovers damages of the husband for breach of the covenant of 
 good right to convey, the release of dower then becomes void, 
 because the recovery in such action debars the purchaser from 
 
DOWER, BOW BARRED. 559 
 
 afterward claiming any thing by his deed ; or, when, after the joint 
 conveyance, an execution against the husband is levied on the land 
 so conveyed, and the judgnaent creditor recovers it from the prior 
 purchaser on the ground that the conveyance to him was fraud- 
 ulent, here the right of dower revives, notwithstanding the wife's 
 release was properly executed, and she may recover her dower from 
 the creditor or his assigns. {Stinson v. Sumner, 9 Mass. R. 143. 
 And vide Robinson v. Bates, 3 Met. R. 40. And also Ring, on 
 Cofo. 328, note 2, where most of the points taken in this section 
 are suggested.) Neither will the wife be barred when she has 
 released her claim to dower in premises mortgaged by her hus- 
 band, and after his decease his administrator has discharged the 
 mortgage, although before such discharge, the judge of probate, by 
 reason of her release, had made an allowance out of the personal 
 estate. {Hildreth v. Jones, 13 Mass. R. 525.) 
 , § 405. It seems that a renunciation of dower is not so much a 
 conveyance as it is a bar to the wife's claim to attend the convey- 
 ance of the husband, to endure while ths(t endures, and cease to 
 operate when that expires. So, as has been before suggested, when 
 mortgaged lands are sold under a mortgage whereupon dower has 
 been released, the purchaser takes not only the fee but the dower 
 also. But when the mortgage is satisfied by payment of the debt, 
 the dower reverts to the wife eo instanti. So, if the mortgage ceases 
 to operate, or never begins to operate, the dower remains with the 
 wife, or returns to her, as the case may be, without the necessity 
 of a reconveyance. {Richa/rd v. Talbaird, 1 Rice's Eq. R. 158.) 
 
 It may be further affirmed that a renunciation of dower on a 
 mortgage cannot operate beyond the estate conveyed, so as to have 
 the effect of a perpetual bar ; it can only postpone the claim of dower 
 to the satisfaction of the lien, and the land stands as security for the 
 debt secured by the mortgage, unincumbered by the wife's rights. 
 The other creditors have no right to the aid of the wife's dower for 
 the payment of their debts. Therefore, when the wife had 
 renounced her dower on mortgage by her husband, and after his 
 death on marshaling his assets in a court of equity, the mortgage 
 debts were paid out of the personalty, it was held that the widow 
 was entitled to her dower, and a sum of money assigned in lieu 
 thereof was ordered to be paid to her out of the land which was 
 ordered to be sold for the payment of debts. (Keokley v. Keohley, 
 2 miVa Oh. R. 252.) 
 
560 LAW OF COVMRTXmE. 
 
 It has been also held in South Carolina that a covenant by a 
 wife, prior to and in consideration of the marriage, not to claim or 
 demand dower or any other right, title or interest, in the real estate 
 of her husband, cannot operate as an estoppel against her at law ; 
 nor will it bar her dower under the statute, 27 Henry VIII, chap- 
 ter 10, section 6, without a competent jointure ; but if she were 
 of full age at the time, such an agreement will be enforced in 
 equity, and the wife be excluded both from dower and a distribu- 
 tive share of her husband's real estate where he has died intestate ; 
 although it seems she will still be entitled to her distributive share 
 of the personal estate under the act of 1791. {GelzevY. Gelzer, 1 
 Bcdley's Eq. B. 387.) But a fair antenuptial agreement executed 
 by the wife for a valuable consideration will unquestionably bar 
 her of her dower. (StnUey v. Folger, 14 Ohio B. 610. PhilUps 
 V. PhiUi;ps, 14 Ohio St. R. 308. Murphy v. Murphy, 12 ib. 407. 
 Cawley v. Lawson, 5 Jones^ Eq. B. 132.) But where the antenup- 
 tial provision for the wife rests only on the undertaking by the hus- 
 band to pay or restore money to her, equity will see the provision 
 executed before it deprives H5r of her dower, at least where the 
 claim to dower is resisted by volunteers. Whether the same strict- 
 ness would be held in the ease of purchasers, quere. {Jbhnsoti v. 
 Johnson, 23 Miss. B. 561.) 
 
 An antenuptial agreement between husband and wife, by which 
 she was to enjoy exclusively certain property to which she was 
 entitled as the widow of her former husband, and which was not 
 stated to be in lieu of dower, was held to be no bar to the wife's 
 claim of dower in the lands of her second husband. {Swaine 
 Ferine, 5 Johns. Ch. B. 482, 489.) 
 
 § 406. A deed given by a husband just before his marriage to 
 his daughter, without any consideration, and kept secret until after 
 the marriage, was held fraudulent and void as to the wife, and did 
 not bar her of her dower in the lands conveyed. {Swaine v. 
 Ferine, supra.) But where a father, in contemplation of marriage, 
 conveyed by way of advancement to his son, with intent to prevent 
 his intended wife from taking dower, and she married him in igno- 
 rance of the conveyance, it was held, by the supreme court of the 
 State of New York, that the widow was not entitled to dower. 
 Bronson, J., delivering the opinion of the court, said : " What a court 
 of equity might say about such a fraud as that, I will not under- 
 take to determine; but, notwithstanding the case of Swaine v. 
 
561 
 
 Perme (5 Johm,s. Gh. E. 482), I think the court would say that 
 there was no fraud in the matter. But, however that may be, we 
 have not been referred to any case, nor have I met with any, where 
 a court of law has undertaken to set aside a deed upon this ground. 
 The husband was not seised at any time during the coverture, and 
 if the plaintiff can succeed anywhere, she cannot in a court of 
 law." {Baker v. Chase, 6 JSiWs E. 482, 488. Vide Oramon v. 
 Cranson, 4 Mich. B. 230.) It has been held that the retention by 
 the husband of the possession of the property after the transfer 
 of the title, or keeping the deed in his hands after its execution, is 
 one of the badges of fraud upon the right of his wife to prevent 
 her receiving her dower, and a conveyance thus fraudulently 
 executed will not bar the wife's dower. (Mays v. JSenry^ 1. Md. 
 Ch. Decis. 337.) In the State of North Carolina) the court held, 
 in accordance with the rule laid down in Swaine v. Perime, that a 
 deed made by the husband before marriage, without coiisideration, 
 and for the purpose of defeating the dower of his intended wife, 
 did not bar her dower. {Littldon v. lAUtekm, 1 Dev. <& Bait. P^ 
 327.) And in Yermont, where, by statute, the wife's dower is 
 restricted to the lands of which her husband died seisedj it has been 
 held that an absolute conveyance to children, without valuable 
 consideration, and with intent to defeat the wife of dower,, does 
 not bar her of her rights. {Thayer v.' Thayer, HVt. P. 107.) 
 But it seems that the mere absence of valuable consideratiop. is not 
 BuflBcient to avoid the deed; there must be a specific intent to 
 defraud the wife of her dower, or the deed will defeat her right. 
 {Mcintosh V, Zadd, 1 Pumph. P. 469.) 
 
 Whether the wife shall have dower in lands conveyed by her 
 husband with the intent to defraud his creditors, she having joined 
 in the deed, is not definitively settled, although.the better opinion is, 
 that, in such a case, where the creditors have set aside the convey- 
 ance, the wife will be entitled to her dower. ( Vide Pohinson v. 
 Bates, 3 Mete. P. 40. Kimlall v. Eaton, 8 If. E. P. 391. FiW 
 ship V. Lamherton, referred to in Woodworth v. Paige, 5 Oh/io St. 
 P. 70. Miller v. Wilson, 35 Ohio P. 108, 117. Summers v. 
 Ball, 13 III. P. 483, StrilUng v. Poss, 16 H. 122. But vide 
 also Manhattan Cornpany v.. Evertson, 6 Paiges XJh, P. 457. 
 Wiswall V. Hall, 3 il. 313, and Pen v, Johnson, 3 Har. P. 87.) 
 
 In Massachusetts, it has been held, in so many words, that a con- 
 veyance by the husband before marriage, although in fraud of his 
 71 
 
662 LAW OF COVERTUBE. 
 
 creditors, bars the wife's dower. ( Whithed v. Mallory, 4 Oush. 
 B. 138.) And dower is in all cases extinguished by the convey- 
 ance of the lands by the husband before dower attaches. {Raw- 
 lings V. Adams, 7 Md. B. 26. Firestone v. Firestme, 2 Ohio St. 
 B. 415. Bowie v. Berry, 3 Md. Ch. Beds. 359.) 
 
 Dower, in North Carolina, is barred by the voidable deed of the 
 husband, but which is never avoided by him ; otherwise, if the 
 deed is void, as if given for an usurious consideration. {Norwood 
 V. Marrow, 4 Bev. d; Batt. B. 442.) But a widow, in Virginia, 
 will not be barred by attempting to claim under a deed of the 
 husband, which was avoided by his creditors as fraudulent, it being 
 made to the use of the husband and his children, and consequently 
 to the use of his wife, she not having signed the deed. {Blow v. 
 Maynard, 2 LeigKs B. 30.) 
 
 The mere fact that the husband failed to acknowledge and put 
 on record his deed, hona fide made before marriage, does not give 
 the wife a right of dower in the premises so conveyed. {Blood, v. 
 Blood, 23 Pioh. B. 80. Tide also' Emerson v. Harris, 6 Mete, 
 B. 475.) 
 
 The lien of a vendor upon land sold to the husband for the pur- 
 chase-money is paramount to the claim of the vendee's widow, and 
 will bar the dower unless discharged. {Ellicott v. Walch, 2 Bland's 
 B. 244.) And when the husband purchases land, and gives back 
 a mortgage to secure the purchase-money, the mortgage overrides 
 the wife's dower. {Boynton v. Sawyer, 35 Alabama B. 497.) 
 It has been held, however, in the State of Illinois, that the 
 mechanics' lien has to give way to dower. {Gove v. Catlier, 23 
 Illinois B. 634.) 
 
 § 407. A good and valid jointure, so called, made before covert- 
 ure, to the woman herself, and not to others in trust for her ; to be 
 in satisfaction of her whole dower ; the estate to take effect imme- 
 diately from the death of the husband, and being for the term of 
 the wife's life, or greater estate, is a bar to the wife's right of dower ; 
 and a jointure possessing all these requisites, will be a bar of 
 dower, although the wife was an infant at the time of the settle- 
 ment. {Drv/ry v. Brury, 5 Bro. P. G. 370. CarrvMier% v. Car- 
 ruthers, 4 Bro. Ch. B. 500. Smith v. Smith, 5 Yes. B. 189. 
 Corbet v. Corbet, 1 Sim. c& Stu., B. 612. Levering v. Levering, 2 
 Md. Ch. Beds. 81. MoCa/rter v. Teller, 2 Paige's Ch. B. 511. Sham 
 V. Boyd, 5 Serg. & Rawlis B. 311.) But such a jointure, in case 
 
DOWER, HOW BABBED. 563 
 
 of an infant wife, to be an equitable bar, must be as certain and as 
 beneficial to the infant as a legal jointure must be to be a legal 
 bar. It must be a provision to take effect immediately on the 
 death of the husband, and to continue during the life of the widow, 
 and be a reasonable and competent livelihood for her under all 
 the circumstances. A conditional jointure is not binding unless 
 accepted by the wife after the husband's death. A lease, or deter- 
 minable freehold, which might not continue for her life, was not 
 considered an equivalent for dower. A condition that the wife 
 should live chaste during marriage is not objectionable ; but a con- 
 dition that she should not run her husband in debt is doubtful. 
 An annuity limited to widowhood may not be considered unreason- 
 able in ordinaiy marriages ; but when the man was seventy-five 
 years old, and the woman an infant, the restraint upon matrimony 
 was deemed imreasonablc, and the jointure was held no bar. {Mc- 
 Carter v. Teller, 2 Paige's Ch. R. 511. And S. C. 8 Wend. B. 267.) 
 
 A grant of a rent charge, out of particular lands, to an infant for 
 her jointure, although tlic grantor be afterward evicted, yet the 
 contract being in equity a general agreement to grant a rent charge 
 to that amount out of some lands, will bind the infant, it seems, if 
 her parent or guardian assent to it. (Corhet v. Corbet, 1 Sim. di 
 Stu. E. 612. 8. C. 5 Euss. E. 254.) 
 
 If the jointiiro be made to the wife during coverture in satisfac- 
 tion of dower, she may waive it after her husband's death, but if 
 she enter and agree thereto, she is concluded ; for though a woman 
 is not bound by any act when she is not at her own disposal, yet 
 if she agree after she is at liberty, it is her own act, and she cannot 
 avoid it. (FrwnTc v. Frank, 3 Myl. <& Or. E. 111. Vance r. 
 Vance, 21 Maine E. 364.) 
 
 It is said by the learned editors of Keeve'g Domestic Eelations, 
 in a note at page 113 of the last edition of that work, that this is 
 one of the provisions of the statute of 27 Henry VIII, and it has 
 probably been adopted in all the states where the law of jointure 
 in bar of dower has been introduced. In Vermont, by the Revised 
 Statutes of 1839, the widow may make her election within eight 
 months after the will of the. husband shall have been proved, or 
 after letters of administration shall have been granted on his 
 estate, to receive the jointure or pecuniary provision in lieu of 
 dower, or to waive it, and have her dower set out; and this, 
 whether the jointure or provision was settled biefore or after mar- 
 
664: ■ LAW OF COVBETUBE. 
 
 riage. By the Revised Statutes of 1863, it is declared that the 
 ■widow may be barred of her dpwer in all the lands of her husband, 
 in the following ways : First, where a jointure shall ha-v^e been 
 settled on such widow by her husband or other person, or some 
 pecuniary provision shall have been made for her before her mar- 
 riage, with or without her consent, to have effect after the death 
 of her husband, and expressed to be in lieu and discharge of her 
 dower; second, where her husband, by his last wiU and testament, 
 shall have made provision for such. widow, which it shall appear 
 to the probate court was intended to be in lieu of dower; and, 
 third, where the husband shall die, leaving no children or repre- 
 sentatives of children, and the widow shall thereby be entitled to 
 one-half of the estate of her husband. {E. S. 1863, cA. 55, § 5.) 
 This- is the law now in force in the state, and it. will be observed 
 that the provisions are absolute, and give the widow no power of 
 election. And the statute further provides that a devise bars all 
 claim to curtesy, or dower. : {E. S. ch. 55, § 15.) 
 
 In Massachusetts, the statute of 27 Henry VIII has always been 
 in force upon this point. {Hastings v. Dickinson,. 7 Mass. E. 173.) 
 And the same provision; is now incorporated into the Massachusetts 
 General Statutes. {Gen, Stat. 1860, cA. 90, §§ 9-11.) 
 
 In the State of JSTew York, the assent of the wife to the jointure 
 must be evidenced, if she be of full age, by her becoming, a party 
 to the conveyance by which it shall be settled ; if she be an infant, 
 by her joining with her. father or guardian in such conveyance. 
 Any pecuniary provision madje for the beneit of an intended wife 
 and in lieu of dower, if assented to by her in the manner provided, 
 is made a bar to any right or claim of dower of such wife in all the 
 lands of her husband. If, before her coverture but without her 
 assent, or if, after her coverture, lands are given or assured for the 
 jointure of a wife, or a pecuniary provision be made for her in 
 lieu, of dower, she must make her election whether she will take 
 such jointure or pecuniary provision, or whether she will be 
 endowed of the lands of her husband. And if laws be devised, or 
 a pecuniary or other provision be made for the wife by will, she 
 must make her election in the same manner ; and in each case the 
 settlement will be binding on the wife unless she dissents, and 
 enters or sues for dower within one year after the death of her 
 husband. (1 B. S. part 2, ch. 1, tit. 3. §§ 9-14. 1 Stat, at large 
 692, 693.) 
 
VOWEE, BOW BARRED. 565 
 
 In Connecticut the law is substantially the same, though in that 
 state a jointure may as well consist of personal . as real property. 
 (1 Swift's Diff.M. JS. S. 1866, tit. 20, ch. 4, § 86.) 
 
 A legacy to the wife of the testator is regarded in lieu of dower 
 where it appears from the will that such is the manifest intention 
 of the testator ; and the rule applies as well to a devise of real 
 estate as a bequest of personal estate. {Zard v. Lord, 23 Conn. B. 
 327. Sichey v. Eickey, 26 iJ). 361.) 
 
 In the State of Pennsylvania the widow is entitled to her choice 
 either of her dower or of the estate or property devised or bequeathed 
 in lieu of dower. {Laws of 1833, p. 249.) In this state the widow's 
 interest in the real estate of her deceased husband does not come 
 within the ordinary definition of dower, because that refers to the 
 common law provision for widows ; but it is a statutory substitute 
 for that provision, and may very well be called her statutory dower. 
 Like dower at common law, it is a defined interest in her late hus- 
 band's lands, arising at his death, arid is a freehold estate. {Bach- 
 man V. Ohrisman, 23 Penn. E. 163. Vide Gor^s Rights of 
 Married Women, 6Y1, note 2.) It may be considered doubtfui 
 whether a settlement of personal estate woxild be held a jointure 
 sufficient to bar dower, but the doctrine of the case of Drury r. 
 Drury, that an infant?s dower may be barred by jointure, is con- 
 sidered as settled law. {Shaw^. Boyd, 5 Serg. db BawWa JS. 309. 
 Vide also on the subject of Jointure in Pennsylvania, Sinnershitz 
 V. Bernhard^s executors, 13 Penn. B. 521, 522. Boreland v. 
 Nichols, 2 Jones^ R. 38. Meliseffs appeal, 17 Perm.. R. 4:5B, 4:54:. 
 Taylor v. Birmingham, 29 ib. 306. Anderson^s appeal, 36 ib. 476.) 
 
 In Yirginia, if the widow is evicted of her jointure, she' may 
 still enforce her right of dower. {ArrMer v. Weston, 4 Sen. <& 
 Munf. B. 23.) 
 
 In the State of Illinois^ a jointure for an intended wife, with 
 her assent, to be taken in lieu of dower, is a bar to any right or 
 claini of dower of the wife in any land of her husband ; but such 
 assent must be evidenced, if she be of frill age, by her becoming a 
 party to the conveyance by which the jointure is settled ; if an 
 infant, by her joining with ier father or guardian in the convey- 
 ance. If the jointure be made before marriage, but without her 
 assent, or after marriage, she must make hei' election whether she 
 will take the jointure or be endowed of the lands of her husband, 
 but she cannot have both ; and she will be deemed to have elected 
 
566 LAW OF COVEBTUEE. 
 
 to take the jointure, unless she file a written renunciation thereof 
 in the office of the court of probate within one year after the 
 authentication or probate of the will. {Law of 1845. 1 PurjpWs 
 Big. 494, oh. 2, title Bower, %% 7-11. Vide also Sisk v. Smith, 1 
 OilmwfUs R. 509, 510.) Similar provisions in regard to jointures 
 barring dower are found in the statutes of some others of the states. 
 
 It has been held, in Kentucky, that a jointure not intended to 
 satisfy dower is no bar. ( Yancy v. Smith, 2 Met. [-S^.] H. 408.) 
 And the same doctrine ,has been held in the State of Illinois. 
 {Hoots V. Graham, 23 lU. B. 81.) The provision must also be 
 positive, and not optional or conditional, and must be performed, 
 or it will be no bar. ( Vincent v. Spooner, 2 Oush. H. 467. Hone 
 V. Vam Soha/ioJc, 7 PaAgeh Oh. R. 221. Blackman v. Blackman, 
 16 AU. R. 633.) 
 
 An antenuptial bond is no lien on the real estate of the husband, 
 but is taken, like any security, with all its defects. {ByJce v. Ren- 
 dall, 13 Bng. L. & JEq. R. 404.) 
 
 The term "jointure," as used in the Kentucky statutes, denotes 
 any species of estate in real or personal property created by con- 
 veyance or devise, and intended to be in lieu or satisfaction of 
 dower. {Tevis v. MoCreary, 3 Met. -R. 151.) But the agreement 
 of a third person to indemnify the husband against alimony and 
 dower does not bar the wife's dower. {Ga/ines v. Poor, 3 Met. 
 R. 603.) 
 
 § 408. It is a very common practice for husbands to give prop- 
 erty or money to their wives, by will, in lieu of dower, and it is a 
 well established principle that the acceptance of such a provision 
 by a widow is a bar at law as well as in equity to her right of 
 dower in any lands of the husband other than those devised to her. 
 ( Wahe V. Wake, 1 Ves. R. 335. Edwards v. Morgan, 13 Price's 
 Ex. R. 782. Kennedy v. Mills, 13 Wend. R. 553. Jackson r. 
 Churchill, 7 Cow. R. 287. Van Orden v. Van Orden, 10 Johns. 
 R. '30, Hoyle v. Stewart, 8 ib. 104. Kennedy v. Nedrow, 2 Ball. 
 R. 418, Kennedy v. Wistar, cited 1 ib. 418. Evans v. Webb, 1 
 Yeate^ R. 424. Bwncan v. Buncan, 2 ih. 302. Hamilton v. 
 Buchwalter, Ib. 389. McCullough v. Alien, 3 ib. 10. Wilson v. 
 Hamilton, 9 Serg. da RawWs R. 424. Simaweaver v. Stoever 1 
 Watts cSs Serg. R. 160. Shotwell v. Sedam., 3 Ohio R. 5. Chapin 
 V. Hill, 1 R. I. R. 446.) But it is held that it must expressly 
 appear by the will, or the implication ought strongly to appear by 
 
DOWEB, SOW JBASSED. 567 
 
 tlie instrument, that it was the husband's intention that the wife 
 should Hot have both the testamentary provision and her dower. 
 {Kennedy v. JHfedrow, 2 Dall. JS. 418. Hamilton v. BuckwalUr^ 
 2 Yeatei R. 389. McCvllough v. Allen, 3 iS. 10. Jaokson v. 
 Churchill, 1 Cow. R. 28Y.) 
 
 In some of the states it is provided by statute, however, that 
 every devise to the wife of the testator, unless otherwise expressed, 
 is to be construed in lieu of dower. Such is the law in Mississippi, 
 Missouri, Ohio, Massachusetts, Tennessee, North Carolina, Alar 
 bama, New Jersey, Pennsylvania, and Minnesota, although the 
 widow may dissent from the devise within a limited time, and she 
 can in no instance enjoy both unless it clearly appears to be the 
 intention of the testator. ( Vide Thompson v. Eghert,3 Harr. 
 [N'. J.'\ B. 460. Crane v. -Crane, 17 Pick. E. 422. AUen v. 
 Pray, 3 Fai/rf. B. 138. Stilley v. Folger, 14 Ohio B. 610. Mil- 
 liard V. Binfield, 10 Ala. B. 977. Reid v. Campbell, Meigs' B. 
 378. McDaniel v. Douglas, 6 Humph. B. 220. Lewis v. Lewis, 
 7 Ired. B. 72. Minion v. Minton, 6 ib. '2i1^. Welch v. Anderson, 
 28 Miss. B. 293. Vide also the statutes of the several states.) 
 
 In New York the widow is entitled to dower, unless the pro- 
 vision be expressly made in lieu. of dower, or be so repugnant to 
 the other provisions of the will that they cannot stand together. 
 (jSandford v. Jackson, 10 Paigis Oh. B. 266. Fuller v. Yates, 8 
 ih. 325. Lewis v. Smith, 9 iV^. T. B. 502. Lasher v. Lasher, 13 
 Barb. B. 106.) And when the provision is in lieu of dower, the 
 widow has one year in which to make her election. The fact that 
 specific provisions made for the wife by the will exceed the value 
 of her dower right is no reason for implying that the testator 
 intended to bar her dower in the residue. {Mills v. Mills, 28 Barh. 
 B. 454.) The intention of the testator, as gathered from the 
 whole instrument, governs as to the question whether a legacy to 
 the wife is in lieu of dower. If it is apparent that to allow the 
 widow dower and the legacy in addition thereto would defeat or 
 materially lessen the allotments to all or any of the devisees or 
 legatees, the court will require the widow to elect. {Dodge v. 
 Dodge, 31 Ba/rh. B. 413.) And a similar doctrine is held in New 
 Jersey. ( White v. White, 1 Marr. B. 202.) 
 
 A devise of all the testator's property, real or personal, during 
 widowhood, or during widowhood and the minority of children, 
 and then to be divided among the children was held not to be a 
 
568 LAW OF COrERTZTRE. 
 
 devise in lien of dower, so as to pnt the widow to her election. 
 {Sandford v. Jackson, 10 Paige's Oh. B. 266. , Ohv/roh v. Ball, 2 
 Denio's B. 430.) 
 
 If the husband in his will gives a legacy to his wife on condition 
 that she releases her dower, if she elect to take her legacy, and 
 there is a deficiency of assets to pay all the legacies, her legacy will 
 not abate. This is upon the principle that a devise- implies a con- 
 sideration. {Morgan v. Edwards, 1 Dow. & Clark's B. 104. Smith 
 V. Einiskern, 4 Johns. Oh. B. 9. Adsit v. Adsit, 2 ih. 448. Wood v, 
 Lee, 5 Mon. B. 58, Bdiley v. Duncan, 4: 'ih 265. Bwrridge 
 V. Bradyl,! P. Wms. B. 127.) But when the provision is in lieu 
 of dower, the wife must elect, or she will be barred. {Axtell v. 
 Axtell, 2 Oh. Oas. 24. Lwwrence \. Lawrence, iVem. B. 365. 
 EMchi/n V. Eitchi/n, Preo. Oh. 133. 'GcdterY. Eanoock, 2 Aik. B. 
 427. Tinney v. Tinney,-5 ib. 8. Tncledon v. Norihcote, Ih. 436. 
 Ayres V. Willis, 1 Ves. B. 230. Oharles v. Andrews, 9 J/o^Z. ^. 152. 
 BrougJdon v. Erington, IBro. P. O. 12. Eerbert v. TTrew, 7 
 Oranch'sB. 370. Blimtrv.Lee,5 OaWsB. 481. Boberts y. Smith, 
 1 x^MW. c& /Si!w. i?. 513. Dickson v. Bolinson, Jacob's Oh. B. 503. 
 Bowley v. Dickson, 3 ^wss, ^. 192. Tide also OoUi/ns v. Oa/rman, 
 5 JfcTcZ. ^. 503.) "Where the legacy is in lieu of dower the legatee 
 is not compellable to contribute with the other legacies to the pay- 
 ment of debts due from the estate. {Lord v. Lord,'i2> Oonn. B. 
 327.) But the legatee in siich case must contribute with all other 
 legacies to make up the share of a post-testamentary child not pro- 
 vided for in the will. {Mitchell v. Blain, 5 Podge's Oh. B. 588.) 
 The legatee, however, is treated as a purchaser in such a case, and 
 is entitled to all the incidents resulting from that relation. {Tiffi 
 V. Porter, 8 If. Y. B. 522.) 
 
 "Where the widow elects to take the testamentary provision 
 in lieu of dower, she takes the estate devised subject to all contin- 
 gent charges upon it. {Oopp V. Eers&y, 11 Foster's B. 317.) The 
 widow may renounce the provision made for her in lieu of dower, 
 which has the effect to surrender her right to the heirs or devisees 
 of her husband ; and she may make this renunciation upon the 
 condition that she die within the period of one year from the death 
 of her husband. {McOallister v. Brand, 11 B. Mon. B. 325, 370.) 
 
 The intention of the testator is the pole-star in all these cases, 
 as in all others which a,riBe under wills ; and this intention must 
 be collected from the dispositions of the estate in the will. 
 
SOWSB, SOW BARREV. 569 
 
 {Arnold v. Hemstead, AmMer'a B, 130. Wake v. Wake, 3 £ro. Ch. 
 R. 255. Boyntori Y. Boynton, 1 ib. 445.) It is (JoubtM whether 
 it mnst not appear from the terma of the will that the testator 
 intended the devise to be in lieu of dower. But this is said to be 
 at least certain, that the implication that the wife shall not have 
 both the devise and dower, must be strong and necessary before the 
 widow will be put to her election. {Foster v. Cooh, 3 BrowrCa 
 Ch. B. 347. Frmch v. Davis, 2 Yesey's B. 572.) And it has 
 been held that a widow shall in no case be forced to make 
 her election until an account, is taken and it is ascertained out 
 of what estate she is dowable. {Sail v. Mall, 2 MoCord's Ch. 
 B. 280. And vide Birmingham v. Birwan, 1 Schoale's c& 
 Zefroy^s B. 444, 452. Chalmers v. Storil, 2 Vesey da Beam^s^ 
 B. 222. Yide also Beeve's Domestic Belations, Sd ed. 116-122.) 
 
 In the older cases the disposition to reject evidence of the 
 testator's intention foreign to the will is much more emphatically 
 expressed than in the riiodern ones. But, notwithstanding the 
 older decisions to the contrary, the better opinion seems to be that 
 evidence extraneous to the will is admissible; in general, to show 
 the intention of the testator, where it cannot be gathered from the 
 instrument itself. {Druce -sr. Dennison, 6 Yes. B. 385. PulteM'y 
 T. Da/rlington, 1 Bro. Ch. B. 118.) 
 
 Upon general principles, it may be affirmed that the fightof the 
 wife to dower in the estate of her husband cannot be absolutely 
 and effectually barred by any testamentary or other provision 
 without her consent. 
 
 § 409. It may be remarked that, though- the wife's dower may 
 be barred by a jointure, yet heir anteiiuptial covenant in a marriage 
 settlement never to claim dower will not have that effect, even 
 though it contain an agreement that it may be pleaded in bar of 
 any action of dower, unless the consideration on which the covenant 
 was founded has been performed. Thus, when, by an antenuptial 
 indenture, the husband settled an annuity on the wife for her life, 
 and she covenanted never to claim dower in his estate, and he 
 afterward died insolvent, it was held that the covenant could not 
 be set up by "way of defense to her claim of dower ; for, being of a 
 future interest, it was not technically a release, and the consider- 
 ation or condition apparent on the face of. the instrument not 
 having been performed, it could not operate either as an estoppel 
 or by way of rebutter. (1 Greenl. Cruise, 203, dimg Hastings v. 
 72 
 
570 LAW OF COVERTURE. 
 
 Dickinson, 7 Mass. JR. 153. Gibson v. Oibson, 15 -ib. 106, 110, 
 Vance v. Vwnce, 8 Shepl. B. 364.) 
 
 It is not essential thkt .the lands intended and secured as a 
 jointure should be free of incumbrance; for if the incumbrance is 
 paid off, the jointure remains good ; and if the wife is evicted, she 
 may claim her dower ; otherwise her dower is barred or prevented. 
 {Ambler v. Norton, 4 Hen. & Munf. R. 23.) Or, there is a proviso 
 in the statute 27 Henry YIII, ch. 10, § 7, which has been adopted 
 in most if not all of the United States, where the common law 
 doctrine of dower is recognized : " That if any such woman be law- 
 fully expulsed or evicted from her said jointure, or from any part 
 thereof, without any fraud or covin, by lawful entry, or by discon- 
 tinuance of her husband ; then every such \voman shall be endowed 
 of as much of the residue" of her husband's tenements or heredita- 
 ments, whereof she was dowable, as the same land and tenements 
 so evicted and expulsed, shall amount or extend unto;" and this is 
 adopted as the rule where the common law doctrine vrith respect 
 to dower prevails. {AmMer v. Norton, sujn'a.) 
 
 If the wife is evicted Of her jointure lands, she will have dower 
 in other lands of her husband. The effect of eviction is to remit 
 her to her dower ^ro tcmto ; if the value of the dower be greater 
 than that of the jointure, she can recover only the amount of the 
 latter; and if the jointure be greater, she can only recover to 
 the amoimt of her dower ; and she will only be pennitted to hold 
 the lands recovered during life, though the jointure might have been 
 settled in fee or in tail. (1 Greenl. Cruise, 202. Hastings v. 
 Dickenson, 7 Mass. B. 153. Arnbler v. Norton, i Hen. da Munf. 
 B. 23.) The consequences of eviction of equitable jointure seem 
 to be the same as if it were legal. The widow, also, in case of 
 eviction, may avail herself of any remedies she may have against 
 her husband's assets, by covenant or otherwise. {Ambler v Norton, 
 supra.) 
 
 § 410. When a jointure is settled on a woman before marriage, 
 it so far resembles dower, that it cannot be defeated by the aliena- 
 tion of the husband alone, or be charged with any incumbrances 
 created by him after the marriage. 
 
 A jointure is in several cases more favored in law than dower, 
 and there are many things which bar dower, and acts of the wife 
 by which she forfeits her claim to dower, which do not prevent her 
 from enforcing her jointure. It is, however, expressly enacted in 
 
DOWHB, SOW SABRED. 571 
 
 some of tlie American States that a jointure, devise, or other pro- 
 vision in lieu of dower, shall be forfeited by any cause which 
 would be a forfeiture of the dower at common law. 
 
 A general devise of other lands, or of personal property, by a 
 husband to his wiffe, will not, independent of any statutory pro- 
 vision to the contrary, operate as a bar to a jointure settled on the 
 wife either before or after marriage. {Grove y. Hook, 4 Bro. P. 
 0. 593.) If, however, a devise was made expressly in bar of a 
 jointure, or it should appear from any circumstances in the will 
 that it was the intention of the testator that the devise was meant 
 as a satisfaction of the jointure, the court would probably compel 
 the jointress to make her election, in analogy with the cases in 
 which a devise has been held a satisfaction of dower. Mr. Cruise 
 refers to one case where there was a deficiency in a jointure, and 
 the husband having devised lands to the jointress for her life, 
 and also a sum of money, such devise and bequest were held to be 
 a satisfaction for the deficiency of the jointure. {Montague v. 
 MaoRwell, 4 Sro. P. G. 598.) He does not . seem, however, to be 
 very well satisfied with the doctrine of the case, and suggests that 
 it is not reconcilable to some other cases. (1 Greenl. Gridse, 221.) 
 
 Although a jointure be very unequal, and much in favor of the 
 wife, yet the court will not relieve against it. {Whitfield v. Tay- 
 lor, Shower's Pari. Gas. 20. Wickerly v. Wiokerly, 2 P. Wms. P. 
 619. Vide also Prime v. StelUng, 2 Ves. P. 409.) 
 
 In many respects a jointure and a devise in lieu of dower stand 
 upon the same footing. Indeed, a provision for the wife by wiU 
 is often called a jointure, and was originally upheld as a bar to 
 dower, as being within the equity and reason of the statute of uses, 
 which establishes jointures. (1 Silliard on Peal Property, 105.) 
 A jointure is ordinarily settled hefore marriage, and a devise takes 
 effect after it is ended by death. They are, therefore, held to 
 stand on substantially the same ground. ( Vernon^s case, 4 GoTce's 
 B. 4.) There is this difference, however, as we have before seen, 
 that a jointure, to be binding on the wife, must, in general, be 
 made before marriage, and a provision for her after marriage may 
 be accepted or rejected by the wife at her election. ( Vide Fra/nk 
 V. FranTt, 3 Myl. & Gr. P. 171.) 
 
 § 411. "With respect to the provision made for the wife after 
 marriage, it has been held that the same will never be construed 
 by implication to be in lieu of dower or the interest the law may 
 
572 LAW OF COVERTURE. 
 
 give her in the personal property not disposed of by the husband ; 
 and the provision must be fully enjoyed by the wife in order to bar 
 her dower. Where, by an antenuptial agreement, a provision is 
 made that the husband shall provide by will for an annuity to his 
 widow for her life, with an interest in a certain part of his real estate, 
 in lieu of dower or any portibn of his estate, and the husband by 
 will gives her an annuity only during her widowhood, he has failed 
 to pefform.his part, and his widow is not precluded from claiming 
 the property which by statute is to be set apart to her use. And 
 it is held that the fact that she is in possession of the real estate 
 and some personal property held by her before marriage, and 
 secured to her by the 'agreement, claiming to' hold them under it, 
 will not prevent hef from asserting her right. {Sheldon v. Bliss, 
 8- W. Y. E. 31.) This is upon the principle that the wife has a 
 right to look to a performance and not to the mere covenant of her 
 husband as a consideration of relinquishing claims upon her hus- 
 band's estate, which would be effected by his death. 
 
 The right to dower being in itself a clear legal right, an intent 
 by a testator to exclude it, or that it should be relinquished, must 
 be demonstrated by express words or by manifest implication. In 
 order to exclude it, the will itself should contain a provision incon- 
 sistent with the assertion of such legal right. {Leonard v. Steele, 
 4 Barh. B. 20, 22. Birminghdm v. Kvnoan, 2 Scho. cfe Lef. B. 
 452.) But when it clearly appears from a will that the testator 
 has distributed the residue of his property, after making provision 
 for his widow, amongst his children or other persons, in such pro- 
 portions as he considered them entitled to; and that, to allow the 
 widow to take both the provision of the will and her dower out of 
 the estate, would d6feat, or materially lessen, the allotments to all 
 or any of the devisees or legatees, the intention of the testator not 
 to give her both the provision and dower out of his estate is plainly 
 manifested, and the court should require the widow to elect which 
 she will take. {Dodge v. Dodge, 31 Barb. B. 413.) 
 
 Again, it has been decided that wheire a testator devised his real 
 and personal estate to his wife during her life, or so long as she 
 should remain his widow, and after her decease or remarriiage, to 
 his children, and the widow, having survived him, entered and 
 occupied under the will for several years, and then married a 
 second husband, she was entitled to dower. The widow's claim 
 of dOwer is regarded with favor by the courts, and she will not bo 
 
DOWEB, SOW BAMRMD. 673 
 
 deprived of it by accepting a testamentary provision in her favor, 
 when it is doubtful whether or not the testator intended she should 
 have both, ; The principle, is reiterated that, in order that the pro- 
 vision bar her dower, the testator must declare his intention in 
 terms that it shall, or the other provisions of the will mnst be 
 totally inconsistent with the claim of dower. {Chimchr. Bull^ 2 
 i?emVs^; 430.) 
 
 So also where a testator , devised all his property, real and per- 
 sonal, to his wife and to two other persons, to be kept for her use 
 and support as long as she should continue his widow, and until 
 his youngest child should become of age, and then directed that all 
 his property should be divided equally among his children; and 
 she survived the testator and afterward married a second time, it 
 was held that the devise, in her favor, was not inconsistent with her 
 claim of dower in the testator's real estate, after his youngest child 
 arrived at the age of twenty-one, and that her acceptance bf the 
 devise was no bar to her claim of dower. {Sccnfprd v. Jaehson, 10 
 Paige's Ch. R. 266.) 
 
 But the provision made for the widow under a trust vesting the 
 entire legal estate in trustees, is inconsistent with a right pf dower, 
 and in such a case the widow is bound to elect which she will take. 
 {Savage v. Bv/mham, 17 If. T. B. 561.) 
 
 The assignment of something to the wife in lieu of dower, with 
 her consent and acceptance, must be of some part of the lands of 
 which she is dowable, or a rent issuing out of them, and for such 
 an interest as may endure for her life, or the same will be no bar 
 to her claim of dower. In order to bar the widow of her action 
 for dower, when rent has been assigned . with her consent, and 
 , accepted by her, it must appear that the rent will endure for her 
 life. (11 Barl. B. 574j 580.) 
 
 "Where a testator by his will makes a provision for the benefit of 
 his wife, and directs that such provision shall be received by her in 
 lieu of all her dower or thirds in his real or personal estate, these 
 words are not to be limited and restrained to thelands of which the 
 testator was seised, but comprehend all the lands of which the tes- 
 tator was seised during the marriage, and in which his wife might 
 be entitled to dower, so as to put the widow to her election between 
 the provisions of the wiU and her dower in lands conveyed away 
 by the testator during coverture. {Palmer v. VoorhiSj 35 Barb. 
 B. 479.) 
 
574 LAW OF COVERTURE. 
 
 A devise of the testator's whole estate to his -widow for life, with 
 remainders over, is not a provision in lieu of dower, unless such 
 intention be implied from other terms of the will ; and the widow 
 under such a provision in the State of New York, may take one- 
 third of the estate as doweress and the residue as devisee. {Lewis 
 V. STwith, 9 N. T. E. 602.) That the provision by will in lieu of 
 dower must be positive and unconditional, and clearly intended to 
 be in lieu of dower, in order to bar the widow of her dower or 
 drive her to her election, is well settled by a long current of authori- 
 ties, both English and American. ( Vide Holdrich v. Hold/rich,^ 
 Ton. & Coll. R. 18. Lcyrd v. Lord, 23 Conn. E. 327. CastoreY. 
 Castore, 2 Eich. Eq. E. 23. Buist v. Dawes, 5 il. 281. Higgiv^ 
 hotham v. Comwell, 8 Oratt. E. 83. Gaw v. Huffman, 12 ib. 
 628. Thomas v. Wood, 1 Md. Ch. Deois. 296. Bailey v. Boyce, 4 
 StTolh. JEq. E. 84. Cornell v. Sam, 2 Lowa E. 552. ClarTc v. Grif- 
 fith, 4 %b. 405. Sim/rgis v. Ewing, 18 Lll. E. 176. Borland v. 
 Nichols, 12 Penn. E. 38. Morris v. GloArk, 2 StocTd. E. 51. Tan 
 Arsdale v. Van Arsdah, 2 Dutch. E. 404. Fulton v. Fulton, 30 
 Miss. E. 586. Gilson v. 6^'5«ow, 17 Eng. L. <& Eg. E. 349. War- 
 iurton v. TFaySwrifoji, 23 il. 415. Packer v. Sowerhy; 27 i&. 154. 
 Eathbone v. Dyckmcm, 3 Paige^s Ch. E. 9. Fboc? v. TFooc?, 5 i5. 
 596. Fuller v. Jafe«, 8 t5. 325. Havens v. Havens, 1 /Sane?. C%. 
 E.ZM. Lasher v. Lasher, 13 ^owS. i?. 106. Tobias v. Keteham, 
 36 i5. 304.) 
 
 In South Carolina it has been held that a widow's acceptance of 
 her distributive share of the personalty of her husband dying 
 intestate, bars her dower in both the realty aliened and in which 
 he was seised at the time of his death. {Euans v. Pierson, 9 Eich. 
 Law E. 9.) 
 
 § 412. Dower will be defeated by a sale of real estate after the 
 marriage, under an execution upon a judgment rendered against 
 the husband prior to the marriage, even when sought to be 
 recovered by an action at law. , So held upon the authority of 
 Kent, that "as a general principle, it maybe observed that the 
 wife's dower is liable to be defeated by every subsisting claim or 
 incumbrance, in law or equity, existing before the inception of the 
 title, and which would have defeated the husband's seisin." {Mc- 
 Clure V. Harris, 12 B. Mon. E. 261. Striblvng v. Eoss, 16 lU. E. 
 122. Trustees of the Poor of Queen Anne's County v. Pratt,\0 
 Md. E. 5. Mants v. Buchanan, 1 Md. Ch. Decis. 202. Brown 
 
SOWJEB, MOW BAEBMD. 5Y5 
 
 V. WiUiams, 31 Maine E. 403. Ohugh v. Elliott, 3 Foster's 
 E. 182. Sandford v. McLean, 3 Paige's Ch. E. 117. ,Sco« v. 
 Howard, 3 ^awS. i?. 319.) The same doctrine is more troadly 
 affirmed by Judge Sherman, in a case in the Ohio supreme court, 
 where he says, in speaking of the widow's right of dower : " Her 
 estate is but a part of his, is derived from him, and must be subject 
 to all incumbrances existing against it at the time of the marriage, 
 or the acquisition by the husband. The husband can, by no act 
 of his, destroy or affect her right of dower where it has once 
 attached, but it only attaches when he has a real beneficial 
 interest in the lands of which dower is claimed." {Greene v. 
 Greene, 1 Ohio E. 535, 542.) Dower is. likewise barred by a valid 
 sale and conveyance of land, by the proper officer, for the non- 
 payment of taxes. {Jones v. Devore, 8 OMo St. E. 430.) 
 
 ' So, by the rules of the common law, dower vrill be defeated where 
 the estate of the husband is conditional, and is defeated or deter- 
 mined by re-entry on account of non-performance of the condition 
 by the husband. This must be the natural consequence arising out 
 of the nature of such an estate. The same act which conveys the 
 estate to the husband creates in the wife the only right of dower 
 which she can claim. The dower right in the wife is an incident, 
 merely, of the conditional estate of the husband, and it would seem 
 to follow as a necessary consequence that it should itself be condi- 
 iional. {Beardslee v. Bea/rdslee, 5 Boa"}).. E. 324, 333.) 
 
 Although the policy of the law has always been to preserve with 
 great care the right of dower, when it has once attached to the 
 property of the husband, yet it has never gone so far as to attach 
 the right of dower to property other than the husband's. Whilst 
 it is reasonable that, in case of the death of the husband, a support 
 for the wife should be provided out of his estate, it is neither 
 reasonable nor legal that such support should be provided out of 
 the property and rights of others. In order to avoid this, it has 
 been found necessary that the right of dower should attach subject 
 to all equities that may exist against the title of the husband at 
 the time it attaches. The right of dower arises alone upon the 
 title of the husband, and cannot be higher or more extensive than 
 it. Therefore, it has been held, that where the legal title is in the 
 husband, and the equitable title in another, at the time of the mar- 
 riage, no right of dower attaches as against such equitable title ; 
 and when the equitable title is asserted, the right of dower is 
 
6T6 LAW OF COVERTURE. 
 
 defeated. {Firestone v. Mrestone, 2 Ohio St. R. 415. itandmgs 
 V. Adams, 7 Md. R. 26. Bowie, v. Berry, 3 Md. Ch. Decis, 359.) 
 
 §413. As a general rule, a divorce a vinculo matrimonii haxs 
 the wife's claim to dower, for it is said that the patty claiming 
 dower must have heen the wife at the death of the husband. 
 {Burdich v. Briggs, 11 Wis. R. 126. JDohson v. Butler, 17 Miss. 
 R. 87.) This would seem to be a very proper rule, where, as in 
 the States of Massachusetts and New York, it is limited to a case 
 of divorce a vinculo for the misconduct of the wife, or on convic- 
 tion of adultery on a bill by the husband for a divorce. {Davol v. 
 JSoviland, 14 Mass. R. 219. Lakin v. Lakin, 2 Attends R. 45. 
 Wait y. Wait, 4 iT. IT. R. 25.) But it is more questionable, when 
 it is carried to the extent of depriving the wife of her dower, 
 when she has obtained a decree for a divorce a vinculo matri- 
 monii, for the adultery of her husband. {Wait v. Wait, 4: Barb. 
 R. 192. Forrest v. Forrest, 6 Buer^s R. 102, 153. Rice v. 
 Lumley, 10 Ohio St. -S. 696.) In such a case, however, the dower 
 IS not lost by way of forfeiture, but because the woman cannot be 
 considered the widow of the man from whom she has been abso- 
 lutely divorced. By the decree, the marriage between the parties 
 is dissolved, and each party freed from the obligations thereof. 
 Besides, in such cases, as a general rule, the court is required to 
 compel the defendant to provide, not only for the children of the 
 marriage, but a suitable allowance for the support of the com- 
 plainant for life, and to give security therefor. And the divorced 
 wife is also at liberty to marry again, to seek another protector, 
 to become the doweress of the lands of another. In this view, 
 there is, perhaps, nothing unjust or harsh in the rule, when car- 
 ried to its logical consequence, which deprives the wife of her 
 dower in the lands of the man from whom she is absolutely 
 divorced, whichever party may have applied for the divorce. 
 
 It seems that an absolute divorce will deprive the wife of her 
 dower, as well when it is granted by legislative enactment as by 
 the decree of a competent court. {Zevins v. Sleator, 2 Greeners 
 [Iowa'] R. 604.) And a decree of divorce xmappealed from and 
 unreversed, has been held to be an absolute bar of the wife's dower 
 in her divorced husband's property, {Miltimore v. Miltim^re, 40 
 Pmn. R. 151.) 
 
 In the State of Ohio it is held that a divorce in another state 
 for wiUful abandonment by the husband, is no bar of dower in 
 
DOWER, SOW BARBED. 577 
 
 Ohio lands ; and this is undoubtedly the rule in all of the states 
 where willful abandonment is not a legal cause for an absolute 
 divorce. {Mansfield v. Molntyre, 10 Ohio Ji. 27.) 
 
 Says Bishop, in his treatise upon the law of marriage and divorce : 
 " The common law of this country is clearly established, that no 
 woman can have dower in her husband's lands unless the coverture 
 was continuing at the time of his death. The reason appears to 
 be that, as the English common law never recognized any right of 
 dower unless the woman were covert when the husband died, our 
 courts cannot create such a right in her by' construction, merely 
 because, in consequence of a legislative enactment, she is found in 
 circumstances unknown to the common law." (2 Bish. on Mar. arid 
 J)w. § '706, referring to Crimen v. Marr, 27 Maine B. 212. Mo 
 Cafferty v. McCafferty, 8 Blachf. E. 218. Clarh v. CUrh, 6 Watts 
 <& Serg. R. 83, 88. Cunningham, v. Cunni/ngham, 2 Ind. H. 233. 
 Whitsell V. MiUs, 6 ih., 229. Miltimore v. MiltMnore, 40 Penn. 
 a. 151. Bwdick v. Briggs, 11 Wis. B. 126. Bice v. Lumley, 10 
 Ohio St. B. 596. McOraney v. MaOmney, 5 Iowa B. 232.) 
 " But in many or most of the United States," he adds, " it is pro- 
 vided by statute that, when the wife is the innocent party, she shall 
 be entitled, immediately on the divorce, to dower in the lands of 
 the husband, in like manner as if he were dead. In such cases, 
 the dower is not to be set off to her in the divorce siiitj but she is 
 to recover it by the same process she would if he had died." (2 
 Bish. on Man-, and Biv. 709.) 
 
 And in a late case in the court of appeals of the State of New 
 York, it was held that a divorce dissolving the marriage contract 
 on the ground of the adultery of the husband, does not deprive 
 the wife of her right of dower in his real estate. The learned 
 judge who deKvered the opinion of the court concluded by saying : 
 " My conclusion, therefore, is that the common law doctrine, 'ubi 
 null/am matrimonii ihi nuUa dos, is not applicable to a divorce 
 which admits the validity of the marriage, and dissolves it for some 
 subsequent cause, as adultery. It is conceded that a divorce under 
 the statute has no retroactive effect. Its operation is specifically 
 defined. It has no other effect than that declared by statute. 
 When the wife is the complaining party, if she obtains a decree, 
 the marriage is so far dissolved as to release the parties from the 
 duty of mutual cohabitation, and, so far as her own property is 
 concerned, the wife is as far as practicable restored to the position 
 ' 13 
 
578 LAW OF COVEBTUB^. 
 
 in which she stood before the marriage. But in respect to the 
 husband's property, her rights are not changed. She is still entitled 
 to a support while the husband lives, and her dower in case she 
 survives him. She and her children, alike unoflFending, retain the 
 same rights as if her husband had been faithful to his obligations. 
 His offense.works no forfeiture of their rights. The children will 
 still inherit as heirs at law, and when they inherit she may be 
 endowed. The only difference is that they inherit the lands not 
 devised of which the father at the time of his death was seised, 
 while she is endowed of all the lands of which her husband was 
 seised at any time during coverture," ( Wait v. Wait, 4 iV, Y. R. 
 95, 109.) 
 
 A divorce a mensa et thoro, from bed and board, does not at com- 
 mon law change the relation of the parties, and consequently the 
 wife is entitled to dower in her deceased husband's estate, the same 
 as though the marriage relation had not been disturbed. {Kriger 
 V. Bay, 2 PicTc. B. 316. Deam, v. Richmond, 5 ih. 461. Clark v. 
 dark, 6 Watts c& Serg. B. 85. And vide Potier v. Barclay, 15 
 Ala. B. 429. Gee v. Thoimpson, 11 La. An. B. 657.) In some of 
 the states, however, the same rule with respect to dower applies in 
 cases of divorce a mensa et thoro as in divorce a vinculo matri- 
 monii, and dower is barred in both cases. 
 
 In New York it has been held that the court has no authority in 
 an action by the wife against the husband for a. divorce a inensa 
 et thoro, to require her to accept a gross sum from her husband in 
 lieu of and in satisfaction of her dower ; and her acceptance of 
 such sum in the life-time of her husband will not defeat her dower. 
 {Cram v. Cavama, 36 Barl. B. 410.) 
 
 § 414. By the common law, the adultery of the wife bars her dower, 
 and in England it is held that her adultery bars her dower although 
 she was previously driven to leave her husband by cruelty. ( Wood- 
 iMwrd V. Bowse, 10 Com. Bench. B. \_N. S?\ 722, The rule, how- 
 ever, under the statute of 13 Edw, I, ch, 34, was, that " if a wife 
 wUVrnglAj leave her husband, and go away, and continue with her 
 adulterer, she shall be barred forever by an action to demand 
 her dower ;" and this is still the rule in many of the states, while, 
 in several of the states, the adultery must be established by the 
 decree of a competent court. Indeed, it would seem that previous 
 to the statute of 13 Edw, I, adultery did not work a forfeiture of 
 the wife's dower at common law, {Beynolds v. Reynolds, 24 
 
DOWER, HOW BARRED. 579 
 
 Wmd. E. 193-197. Cooper v. WTiitney, 3 miPs R. 95. Cogs- 
 well V. Tibbetts, 3 JST. H. B. 41. Bell v. Neeley, 1 ^ai'Zey's ^. 312. 
 Cochrane v. IMiby, 18 Mame H. 39. Stigall v. 8t/igall, 2 Brock. 
 a. 256.) But the statute of 13 Edw. I is understood to be the 
 common law of the United States ; an-d it was said by Wnies, J., 
 in the case of Woodward v. Dowse, supra: " The best construction 
 of the statute seems to be, that the leaving sponfe is not the 
 essence of the offense which leads to the forfeiture. It is enough, 
 if, having left her husband's house, the woman afterward commits 
 adultery." This was said in 1861 ; but in a case decided in the 
 same court more than thirty years previous, Tindal, Ch. J., after 
 examining the cases upon the subject, said : " The authorities, 
 therefore, above referred to, place the forfeiture of the dower upon 
 the fact of a living from the husband in adultery, and not upon the 
 circumstances attending the elopement ; and as we think the good 
 sense and reason of the case concur with these authorities, we hold 
 the proper construction of the statute to be what the words still 
 wan-ant, that if a woman leaves her husband with her own free 
 will, and afterward lives in adultery, the dower is forfeited." 
 {Ketherington v. Graham, 19 Eng. C. L. R. 31.) The same doc- 
 trine prevails in the State of North Carolina, where Kuffin, Ch. J., 
 approved of the rule laid down in Hethermgton v. Graham, saying 
 it " is also a clear authority and upon sound reason, that there 
 need not be any adultery, before the wife leaves her husband, nor 
 any elopement with the man with whom she afterward commits 
 adultery ; but that she is barred by adultery with any person, 
 entu'ely supervenient on a separation by mutual consent ; " holding, 
 however, that in order to support a bar to the claim of dower, it 
 must appear that the wife willingly left her husband ; and if driven 
 away by the husband, or by his compulsion, the wife does not 
 forfeit her dower. ( Walters v. Jordam,, 13 Ired. Law. B. 361.) 
 
 Chief Justice Marshall said : " The words ' and go away and 
 continue with her adulterer,' would, I am inclined to think, be 
 satisfied by an open state of adultery, whether the woman resided 
 in the same house with her adulterer, or in separate houses; 
 whether in her own or a friend's house, or in his ; whether with or 
 without the ceremony of marriage." {Stigali v. St/igall, 2 Brock. 
 R. 256, 260.) But, on the contrary, it -was early held by the 
 superior court of New Hampshire that the wife does not forfeit 
 her right of dower by committing adultery, unless she elopes with 
 
580 .LAW OF COVERTUnK 
 
 the adulterer. {Cogswell v. Tihletts, 3 W. H. R. 41.) And, as was 
 before shown, in New York and Massacluisetts, elopement with an 
 adulterer is not a bar to dower, unless followed by a divorce. 
 {Reynolds v. Reynolds, 24 Wend. R. 193. Lakin v. Lahin, 2 
 Allen^s R. 45.) The rule is the same in Ehode Island. {Bryan y. 
 Ratoheller, 6 R. I. R. 543.) It is nowhere held that mere separa- 
 tion, however unjustifiable, without adultery, will prevent dower; 
 but, on the contrary, it has been expressly held that it will not 
 have that effect. {Thayer v. Thayer, 14 Vt. R. 107.) In the 
 State of Alabama, dower has been refused where both parties had 
 been guilty of adultery^ but no divorce had taken place. {Ford v. 
 Ford, 4 Ala. R. 142.) 
 
 § 415. "When the husband and wife enter into a post-nuptial 
 agreement, in view of a voluntary separation, whereby, for a con- 
 sideration which, in the light of all the circumstances of the 
 parties at the time the contract is made, is fair, reasonable and 
 just, the wife relinquishes all claim to dower "in her husband's 
 estate, and the same is fully executed on the part of the husband, 
 it has been held that the court will uphold and enforce the contract 
 in equity, and bar the wife's dower. {Miller v. Miller, 16 Ohio St. 
 R. 527.) But an agreement not under seal between the husband 
 and wife to live . separate and apart, and that neither shall claim 
 any interest in the other's property, is not a bar to the wife's 
 dower. ( Walsh v. Ketley, 34 Penn. R. 84.) And an arrangement 
 by which the husband and wife separate and Mve apart, and the 
 husband conveys to the wife a separate estate, does not bar her 
 claim to dower. ( Waikins v. Wathins, 7 Yerg. R. 283.) "When 
 the widow knowingly permits the purchaser to part with his money 
 for real estate under the assurance that the land is free from her 
 claim of dower therein, and she accepts and enjoys the use of the 
 whole purchase-money, as a bequest imder the will of her husband, 
 such acts on her part constitute . an estojojpelin pais, and she will 
 not be permitted to set up a claim to dower in the premises. 
 ( Wood V. Seely, 32 N. Y. B. 105. But vide Lawrence v. Brown, 
 5 ib. 394, Heth v. Cooke, 1 Rand. R. 344.) The heirs of a grantor 
 cannot set up against a claim of dower by his widow, their 
 liability to the grantee upon a covenant of warranty in a deed of 
 the land in whicli the dower is sought. {Hill v. Golden, 16 B. 
 Mon. R. 551.) And the plea that the defendant had a large claim 
 against the husband, who owned a large personal estate at the time 
 
ASSiemrENT of dower. 581 
 
 of his death, which the widow had converted to her own use, is 
 not suflScient to bar the widow's dower. (Kennedy v. MoAUley, 9 
 Hich. Law B. 395.) Neither is it a defense to' the widow's claim 
 for ^ower that the purchaser bought without any notice of 6uch 
 claim, and paid a full consideration for the property. {Oarmpbell 
 V. Murphy, 2 Jones' Eq. B. 357.) 
 
 Dower is connected with and inheres in the title of the heirs, 
 and that which bars the right of the heirs bars the widow's right 
 to dower. Where the land of the deceased husband was sold under 
 a void judgment, and the possession voluntarily relinquished by 
 the widow, who failed to assert her right to dower by suit for 
 twenty years, it was held that she was barred of her right. {Oar- 
 michxtdY. Garmichad, 5 Humph. JS. 96.) A similar rule prevails 
 in the State of N'ew York. {Sayre v. Wisner,'8- Wend. B. 661.) 
 
 CHAPTEE XXIX. 
 
 ASSIGNMENT OF DOWEE — THE WIDOW's INTEEEST IN THE ESTATE BEFOEE 
 ASSIGNMENT — ^PEINCIPLES AND MODE OF ADMEASUEEMENT AND ITS 
 EFFECT — THE METHOD OF OBTAINING THE LAND ASSIGNED — THE 
 widow's ESTATE ACQUIEED BT THE ASSIGNMENT. 
 
 § 416. Upon the death of the husband, the right to dower which 
 the wife acquired by her marriage becomes consummate. But, 
 unless the precise portion of land which she is to have is particu- 
 larly specified as in dower, " ad ostium ecclesim," and " ex assensu 
 patris,^^ she is not entitled to enter upon her third or other part 
 of the estate until her dower has been duly assigned to her by the 
 heir or other competent authority. This is required^ it is said, not 
 only for notoriety to the public,' or to the owner of the lands, to 
 enable them to" implead the tenant, but also to entitle the lord of 
 the fee to demand the heirs' services in respect of the estate so 
 held. This consideration, howeverj is of no moment at the present 
 day. The widow is entitled to be- endowed immediately after her 
 husband's death; and, strictly speaking, her dower ought to be 
 assigned to her within forty days after the happening of that event. 
 In the mean time she is entitled, at common law, to remain in her 
 
582 ZAW OF COVEETUBB. 
 
 husband's dwelling-house, of which she is dowable, for the space 
 of forty days, and to be supported de bonis viri. This right of 
 residence is called the widow's quaraintine. But if she marry 
 during these days, or depart from her husband's house, her right 
 to quarantine determines. 
 
 In the State of Maine, the widow, though entitled to dower, has 
 no claim to occupy any part of the estate until her dower has 
 been assigned {Bolster v. Cushman, 34 Maine R. 428) ; while in 
 !New York it is provided by statute that a widow may tarry in 
 the chief house of her husband forty days after his death, whether 
 her dower be sooner assigned to her or not, without being liable to 
 any rent for the same, and in the mean time she shall have her 
 reasonable sustenance out of the estate of her husband. (1 R. 8. 
 part 2,ch. 1, tit. 3, § 17. 1 Stat, at La/rge, 693.) And unless her 
 dower is assigned to her within the forty days, she may take 
 measures to have her dower admeasured. (2 R. 8. jpart 3, ch. 8, 
 tit. 7, § 1. 2 8tat. at Large, 510. Ward v. Eilts, 12 Wend. 
 R. 137.) The widow, after her quarantine of forty days has 
 expired, has no right to the possession of the premises of which her 
 husband died seised, and no right to enter thereon for her dower 
 before it has been assigned to her. {Corery v. The People, 45 
 Barb. R. 262.) The widow's quarantine, which was a provision 
 originally of magna charta of England, is recognized in most of 
 the United States, and it is certainly a very proper and humane 
 provision. {Tide Batik qf U. 8. v. Bunseth, 10 Ohio R. 18. 
 Barnet v. Barnet, 15 8erg. (& RawWs R. 71. McCully v. Smith, 
 2 Bailey's R. 103.) 
 
 In pleading quarantine, the widow must show with certainty the 
 period when her husband died and the time of the forty days after. 
 {Kettillsby v. Kettillsby, Dyer's R. 76.) 
 
 § 417. It may be proper, though perhaps unnecessary, to remark 
 that the incipient or inchoate right of dower becomes consum- 
 mated and perfected only upon the natural death of the husband. 
 It was anciently contended that the dwil death of the husband 
 would entitle the wife to her dower, and that upon the happening 
 of that event, she could at once proceed to have her dower 
 admeasured. Lord Eldon said : " In the case of abjuration, and 
 in those other cases which amount to a civil death, I think that I 
 understand the situation in which the wife was placed. The hus- 
 band being civilly dead, the wife was entitled to dower of his land 
 
ASSIGNMENT OF DOWER. 583 
 
 in the same manner as if he were actually dead." {Ma/rsh t. 
 Hutchinson, 2 Bos. <& Pull. B. 226-231.) And this position was 
 supported by the authority of Bracton and Fleta, in whose books 
 the wife seems to have been considered as equally entitled to dower 
 in the case of a civil as of a natural death. The same doctrine 
 was intimated in one case in the State of South Carolina, where 
 the court held that if the husband be banished, he " is considered 
 as cwiliter mortu-m, and such rights as woiild have survived to him 
 on the death of his wife are extinct, and gone with him." ( Wright 
 V. Wright, 2 Dessau. B. 2A3i, 244.) But it is usually held, in the 
 absence of any statutory provision, that nothing short of the 
 natural death of the husband will entitle the wife to have her 
 dower set off to her. ( Vide Frazer v. Fletcher, 17 Ohio B. 260. 
 Wooldridge v. Lucas, 7 B. Mon. B. 49.) 
 
 In several of the states, however, the wife is entitled by statute, 
 for certain causes, to demand her dower in the life-time of her 
 husband. Thus, in the State of Maryland, if the husband is 
 guilty of polygamy, " his first wife shall, on his conviction, be 
 forthwith endowed of one-third part of his real estate, which she 
 shall hold as tenant in dower, the assignment of which shall be 
 made as prescribed by law in other cases of dower, and she shall 
 have the like remedy for the recovery thereof; and she shall also, 
 on his conviction, be forthwith entitled to one-third part of his 
 personal estate, in the same manner as if such husband had died 
 intestate and she had, survived him, which third part shall be 
 .divided and allotted to her in the same manner as distribution is 
 made of the personal estate of intestates." (1 Md. Code, p. 207, § 11.) 
 
 In the State of Michigan, upon the conviction of the husband 
 for a felony, whereby he is sentenced to imprisonment for the term 
 of his natural life, his wife is entitled to dower in the same manner 
 as if he was actually dead. (2 Comp. Lams, p. 957, § 24.) And 
 the wife is also entitled to her dower in that state when a divorce 
 is decreed by reason of the adultery of the husband. {Lb.) 
 
 In the State of Wisconsin, when the husband is sentenced to 
 imprisonment for a term of three years or more, or when the wife 
 is-divorced from her husband on account of his adultery, she is at 
 once entitled to her dower, the same as though her husband was 
 dead. {B. S. 1858, p. 626, § 25.) And the law is the same in 
 Minnesota. {B. S. 1859, p. 466, § 24.) And the same in the 
 State of Oregon. {Oen. Stat. 1864, ch. 5. § 495.) 
 
684; LAW OF COVERTURE. 
 
 In the State of Massachusetts, when a divorce is granted by 
 reason of the adultery of her husband, the wife is at once dowable 
 in his lands as if he was dead. {Gen. Stat. 1860, p. 53.5, § 38. 
 Vide Davol v. HowUnd^ 14 Mass. E. 219.) And in Maine the 
 wife is dowable when divorced from her husband for his fault. 
 (5, /S 1840-41,^.608, § 10. Toimg v. Gregory, AQ Maine B. 
 4:75. Harding v. Alden, 9 Greenl. R. 140.) . 
 
 § 418. The right of dower becomes consummate upon the death 
 of the husband or other event referred to, but the widow cannot 
 enter for her dower until it is assigned— until assignment she has 
 no estate in the land, for Ihe law casts the freehold on the heir 
 immediaitely upon the death of the ancestor. Before the dower is 
 assigned, the widow's right is a mere chose in action or claim, 
 which she cannot assign or convey, though she may release it. 
 {Cwade v. Ingfaham, 13 I^ick. B. 33. Lawrence v. Miller, 2i W. 
 T. B. 245. Stewart v. McMartvn, 6 Barl. B. 438. Green v. 
 Putna/n, 1 ib. 500. Scott v. Mowwrd, 3 ih. 319. ' Siglar v. Van 
 Evper, 10 Werid. B. 414.) This is the doctrine in New York, and 
 the same rule is recognized in the State of Illinois, where it has 
 been expressly held, that until assignment the right of' dower is 
 inchoate, and is not the subject-matter of sale or transfer ; the only 
 use the widow can make of her dower interest, is to release it to the 
 owner of the fee, until it has been set apart to her. It was further 
 held that until dower has been assigned, thedoweress does not 
 acquire a right of entry ; and this is the doctrine of the common 
 law. {Roots Vi Graham, 23 III. B. 81. Blair v. JSarrison, 11 . 
 ih. 384.) So also a similar, doctrine prevails in the State of Ken- 
 tucky, where it is held that until the widow's dower is assigned, 
 she has only the right of quaranUne, and no such interest in the 
 land of her deceased husband as may be sold on execution, or enable 
 her to make a lease or bring ejectment, {Shield v. Baits, 5 J. J. 
 Marsh. B- 13.) And /the doctrine is general that the widow's 
 dower cannot be sold on execution against her until it has been 
 assigned ; and the; widow cannot release it even to a stranger. But 
 after it'is; assigned, then, of course, it becomes the subject-matter 
 of sale and transfer. {Gooch v. Atkins, 14 Mass. B. 378. Nason 
 V. Allen, 5 Greenl. Bi 479. Johnson v. Shields, 32 Maine B. 424. 
 Summers v. Bubh^ .13 III. B. 483.) Before the dower is assigned, 
 however, it would seem that the widow can make a contract con- 
 cerning it, which a court of equity will enforce. {Potter v. Mjerett, 
 
ASSWNMSNT OF BOWER. 685 
 
 7 Ired. E^. JR. 152.) Bti.t in Alabama it has been held, that if 
 a widow, before her dower is allotted to hbi", convey her interest in 
 the lands of her deceased husband, the heir at law may recover in 
 ejectment ■ against the alienee. ( Wallaoe v. Mall, 19 Ala. R. 367. 
 But vide Powell v. Powell, 10 *5. 900.) So also the doctrine has 
 been recognized in Alabama, that nntil the widow's dower is 
 assigned her, she has not such a legal title in the estate of her 
 deceased husband as can be sold' on execution at law. {Cooh v. 
 Wchh, 18 Ala. R. 810.) In Pennsylvania, however, the widow's 
 statutory dower is not treated as a lien upon the land, but as an 
 interest in it. Her right attaches immediately upon the death of 
 her husband, and sh» may be endowed temporarily. {SchalVs 
 appeal, iO Penn. R. 170. Price v. JoJmston, 4 Yeates' R. 626.) 
 
 It has been decided in general terms that a wife has no vested 
 right, of any kind, to dower in the estate of her husband before his 
 decease, and until then, her right may be modified, changed, or 
 abolished by the legislature. {Barbour v. Barbowr, 46 Maims B. 9.) 
 
 In Iowa, it is held that the widow's dower attaches on the death . 
 of her husband, and before it is assigned. {Bwrke v. Barron, 8 
 Cla/rke^8 R. 132.) And in the State of Ohio, it has been held 
 that a conveyance by the widow before assignment of her dower 
 is not vdct, and will not be set aside on application of a pur- 
 chaser who has entered and enjoyed ; he can only claim a perfect 
 release after the assignment. The same rule, however, as to 
 alienation is recognized as that which prevails in , New York, 
 .Massachusetts and Illinois. {Todd v. Beatley, Wrighfs R. 661. 
 Douglass v. McCoy, ^ Ohio R. 527.) But the general doctrine is, 
 that the widow has no estate in the lands which she can assign or 
 transfer until her dower is assigned ; and if no assignment is made 
 before her death, all right is gone. {Rowe v. Johnson, 19 Maine 
 ' R. 146. Sandhack v. Quigley, 8 Watts' R. 460. Vide also John- 
 son V. Thomas, 2 Paigis Ch. R. 377. Atkins v. Yeomans, 6 Meto. 
 [Mass.] R. 438.) But if the widow is in possession, or is entitled 
 to an assignment of dower immediately, the want of a mere formal 
 assignment of her dower is not material in equity; and her interest 
 in such case may be reached upon a creditor's bill a,nd applied to 
 the satisfaction of the complainant's judgment. {Tompkins v. 
 Fonda, 4 Paige's Ch. B. 448.) So also in equity the assignee of a 
 right of dower may state the assignment, and sue in. his own name 
 as assignee,; but the right to be perfected is still the assignor's 
 74 
 
586 LAW OF COVERTURE. 
 
 right, and being a legal and not an equitable one, is subject to all 
 the incidents which would at law attach to it, and, among other 
 things, to the legal rule for applying the statute. The case is as 
 though the doweress herself were the complainant in the bill. 
 ' ( Wilson V. McLenaghan, McMullan's Eq^. R. 35. Vide also EoUn 
 V. Flanders, 33 N. M. B. 624.) But the rule at law is, that the 
 widow does not acquire a vested estate in the lands which enables 
 her to sustain an action, or which she can transfer, until her dowpr 
 is assigned, as before stated. ( Vide, addiUoruil, Doe v. IfuU, 12 
 JEkg. C. L. B. 205. Jackson v. CfDonaghy, 7 Johns. B. 247. 
 Jadkson v. Aspell, 20 ih. 4:11. Jackson v. Vanderheyden, 17 ib. 
 167. Oha^nan y. Armstead, i Munf. B. 362. Moore v. Gilliam, 
 5 ib. 346. Johnson v. Morse, 2 If. H. B. 49. Shiffer v; O^Neil, 
 9 Mass. B. 13. Brown v. Adams, 2 Whart. B. 188. McGully v. 
 Smith, 2 BaMey's R. 103. Shield v. Bates, 5 J. J. Marsh. B. 
 15.) The same authorities show that after the expiration of her 
 quarantine, the heir may put the widow out of possession, and 
 drive her to her suit for dower. 
 
 However, in several of the states, the widow, if in possession, 
 cannot be ousted until her dower is assigned ; and she is deemed 
 a tenant in common with the heirs to the extent of her rights. 
 This is the rule in Virginia, Kentucky, Connecticut, Ehode Island, 
 New Jersey, Alabama, Illinois and MissourL {Den v. Dod, 1 Salst. 
 B. 367. Stedmcm v. Fortune, 5 Conn. B. 462. Crocker v. Fox, 1 
 Roofs B. 227. Colder v. Bull, 2 il. 50. Stokes v. McAllister, 2 
 Missouri B. 163. Pharis v. Leachman, 20 Ala. B. 662. Springle 
 V. Shields, 17 ib. 295. Shelton v. Carrol, 16 ib. 148. Singleton v. 
 Singleton, 5 Dana's B. 89. Ramio v. Bell, 3 KeUy's B. 207.) But 
 in all or nearly all of the other states, the widow is only entitled to 
 remain in possession of the husband's mansion during her quaran- 
 tine before referred to. 
 
 § 419. The interest which the wife has in this country in the estate 
 of her deceased husband differs materially from her right at common 
 law. By the common law. she is entitled to one-third part of such 
 lands and tenements as her husband was seised of in fee during 
 coverture ; while in some of the States she takes one-third of the 
 profits of his estate, and if there are children one-half; in others 
 she has the same right in fee, and if there are no kindred, she takes 
 the whole ; and still in others she has two-thirds, if there are no 
 lineal ascendants or descendants, or brothers and sisters of the half 
 
ASSIGNMENT OF SOWER. 687 
 
 blood. More generally, however, the widow has, for her dower, 
 one-third part of the real estate of which her husband was seised 
 during coverture, or, as in some instances, of which he died seised. 
 The other modifications of the common law with respect to the 
 interest which the wife has in her deceased husband's lands, relate 
 usually to an estate in addition to or in lieu of her dower. But 
 whatever the share may be which the widow takes as her dower, 
 the common doctrine of its assignment will generally apply. 
 
 § 420. The assignment of dower may be made by the heir, or 
 whoever may be the owner of the freehold ; it being settled that no 
 person can assign dower who has not a freehold in the estate, or 
 against whom the writ of dower does not lie. For this reason, a 
 guardian in socage cannot assign ; neither can a tenant for years, 
 since he is possessed of only a chattel interest. If the heir be a 
 miilor, he is, notwithstanding, competent to the assignment of 
 dower • because he would be obliged to do so in a suit in which 
 he would not be permitted to take advantage of infancy, so as to 
 prevent an immediate assignment. {Gere v. Perdme, Oro. Elizi, 
 309. Stoughton v. Lee, 1 Tavmt. B. 402.) The infant, however, 
 should make the assignment by guardian. {Jones v. Brewer, 1 
 P-ich. P. 314.) But if the heir were under age, when he assigned 
 dower^he wiU be protected against the consequences of excessive 
 assignments, and may have his writ of admeasurement of dower. 
 He cannot, however, defeat the assignment by entry. (1 Greenl. 
 Cruise, 171.) 
 
 By the former practice in England, it was regarded as the duty 
 of the heir in common cases, as lord of the manor, and who was to 
 create the tenure, to assign the dower. If there was any dispute 
 as to the quantity of land assigned, it was determined by the pares 
 curies, in the court baron ; but the suit might be removed to the 
 county court, and also to the king's court; and probably this is 
 the practice there at present. (1 Oreenl. Cruise, 169.) 
 
 It is not necessary to the validity of the assignment that the 
 estate in the person making it should be a lawful freehold, because 
 assignment of dower is a legal obligation upon the tenant of the 
 freehold, whether he obtain it by right or by wrong ; and if by 
 wrong, the widow is not obliged to wait for an assignment until 
 the heir thinks proper to enter and defeat the tortious estate, an 
 event which may never happen. If, therefore, the land is in 
 possession of an intruder or other wrongful occupant, he may make 
 
688 LAW OF COVERTURE. 
 
 the assignment, and it will be binding upon the lawful tenant, 
 unless he is in possession by the connivance of the widow for the 
 purpose of obtaining dower. 
 
 When the husband has conveyed his lands to different persons in 
 severalty, and one of tlie grantees assigns to the widow in satis- 
 faction of her whole dower, the other grantees cannot avail them- 
 selves of the assignment. The rule is different when a part of the 
 land descends to the, heir, and he makes an assignment in satisfac- 
 tion of the whole dower. In such case the grantee of another 
 portion of the land may plead the assignment in bar, because there 
 is a privity between the heir and the grantee. {Co. LiU. 35.) 
 However, in several of the American States, as in Virginia, Ken- 
 tucky, Missouri, New Jersey and Delaware, it is provided by 
 statute that it shall be no defense to a suit for dower that another 
 person has assigned it, unless the assignment be shown to be in 
 satisfaction of dower from the lands in question. (^ HiWia/rd on 
 Real Property, 142.) Provision is made by statute in all of the 
 states for the assignment of dowe;r, but this does not affect the 
 right of the heir to assign it himself. {Moore v. WaZkr, 2 Rand. 
 
 li. 4:18.). 
 
 § 421. Dower may be assigned in pads by the party authorized 
 to make it. The widow being entitled of common right, nothing 
 is required but to ascertain her share ; and when that is accom- 
 plished by the assignment, and she has entered, the freehold vests 
 in her without livery of seisin or writing. {Bowe v. Power, 5 Bos, 
 c& Pull. R. 1, 34.) A parol assignment is generally regarded as 
 suificient in the United States, although in Ohio, and perhaps in 
 some other of the states the assignment must be by deed. ( Vide 
 Robinson ^.MiUer,l B. Man. R. 88. Conant t. Little, 1 Pioh. R. 
 189. Shattuck v. Gregg, 23 ib. 88. Johnson v. Morse, 2JV.If.R. 
 48. Pinkham v. Gear, 3 ib. 163. Raker v. Baker, 4 Greenl. 
 R. 67. Johnson v. Neil, 4 Ala. R. 166.) 
 
 If the owner of land assign dower therein to a widow by parol 
 he vsdll, as against her, be bound by the assignment. The assign- 
 ment is certainly good as between him and the doweress. {Shat- 
 tuck V. Gregg, 23 Pick. R. 189.) 
 
 If an assignment of dower by the heir or other person liable to 
 have it demanded from him, was a conveyance to the widow the 
 statute of frauds would undoubtedly require it to be made by an 
 instrument in writing or by deed, but it is not a conveyance;" the 
 
ASSIGNMENT OV DOWER. 589 
 
 widow, holding her estate by law and not by contract, wants 
 nothing but to have that part which she is to enjoy set out and 
 distinguished from the rest, and this may be done by setting it out 
 by metes and bounds, as well as by deed. The widow, does not 
 hold the land or her estate of the heir, but of her deceased husband, 
 or rather by appointment of law. If she received land that was 
 not her husband's, or other things in lieu of dower, a deed would be 
 necessary, because she would derive her. title from the person 
 making the conveyance in lieu of dower. But her estate does not 
 depend upon the heir, but upon the seisin of her deceased husband j 
 so that the assignment of her dower may be made by parol as well as 
 by an instrument in writing. {ConantY. IAttU,l Pick. B. 1^9.) By 
 the assignment the widow acquires no new freehold, but her seisin 
 is a continuation of the husband's seisin, and her possession is not 
 adverse to her husband's mortgagee or his assignee. ( Williams v. 
 Bennett, 4^ IredelPs B.X'i^. Jones v. Brewer,! Pick H. 317.) It 
 would be quite well in all cases to have the assignment in writing, 
 to save all dispute as to the extent of the land set off, and sometimes 
 this is required, but generally a parol assignment is sufficient. Form- 
 erly, as a general thing, dower was assigned by the heir by a parol 
 declaration that the widow should have such particular lands for 
 her dower ; or else that she should have a third part of all lands 
 whereof her husband died seised. {Booth v. Lambert, Stylets B. 
 276.) And the heir has the whole of the quarantine of the widow 
 within which to make the assignment. It is his duty, and not that 
 of the widow, to make it, and if he neglects it, and a suit is brought, 
 and he is subjected to costs. or damages, it is his own fault, and 
 not the fault of the law. ( Yates v. PaddocJe, 10 Wend. P. 529, 
 634.) But a parol assignment of dower does not bind the widow 
 until it is accepted. {Johnson v. Morse, 2 If. H. B. 48.) 
 
 § 422. "When the heir or other tenant of the land refuses to 
 assign the dower, the widow has her action at law by writ of dower, 
 'unde nihil hdbei, or by writ of right 'of dower against the tenant 
 of the freehold. The writ of right of dower, however, is scarcely 
 known in this country, or at aU events is seldom resorted to here. 
 (4 Kenfs Com. 63.) The writ unde nihil hdbet is to be preferred, 
 because the widow under that recovers damages for the non-assign- 
 ment of her dower. This writ is the only one provided in Maine, 
 Massachusetts, Virginia and Kentucky. The writ lies only against 
 a tenant of the freehold. {Miller v. Beverly, 1 Hen. ds Mvmf. B, 
 
590 LAW OF COVERTURE. 
 
 368. Eurdy. Grant, 3 Wend. B. 340.) But a vendor, by articles, 
 before making a deed, and while any part of the consideration 
 remains due, is so far tenant of the freehold as to make him a 
 proper party to the action of dower wnde nihil hahet. {Jones v. 
 Patterson, 12 Penn. E. 149. Shamer v. Boyd, Ih. 215. Bef erred 
 to in 1 HilUa/rd's Beal Prop. 243, note a.) 
 
 A suit for dower in most of the states may be brought at the 
 election of the widow. By the common law, when there was a 
 custom in a manor that the widow should enjoy during her widow- 
 hood, the whole or part of the customary lands of which her husband 
 died seised, as of freebench, she might, after challenging her right, 
 and praying to be admitted, maintain ejectment, even against the 
 land, because her right was regarded as an excrescence which, by 
 the custom and the law, grew out of the estate. But when the 
 widow's claim is in the nature of dower, an ejectment at common 
 law will not lie before assignment, but she must levy a plaint in the 
 nature of a writ of dower in the proper court. {Jurdan v. Stone, 
 Sutton's B. 18. Howard v. Bartlett, Moba/rfs B. 181. Doe v. 
 Nutt, 5 Bos. & Pull. B. 430. Chapmwn v. Sharp, 2 Shmo. B. 184.) 
 
 But by the statutes of several of the states, the common law 
 remedy of the widow for her dower has been abolished, and instead 
 she may bring her action of ejectment. For instance, in the State 
 of ]!^ew York, the statute provides that the widow entitled to 
 dower, after the expiration of six months from the time her right 
 accrued, may recover her dower, of any lands, tenements or heredit- 
 aments, by action of ejectment. (2 B. S.part 3, chapter 5, tit. 1, 
 § 1, sub. 2. 2 Stat, at La/rge, 312.) ^TJnder this provision of the 
 statute, it is held that the action must be brought against the 
 actual occupant of the land of which she is dowable, and not as in 
 the former action of dower against the tenant of the freehold. 
 {Ellicott V. Moshier, Y If. T. B. 201. S. C. 11 Bari. B. 574. 
 Sherwood v. Yandenburgh, 2 SilVs B. 303.) If the action is brought 
 before dower has been admeasured, and the widow recovers judg- 
 ment, she then proceeds to have her dower assigned ; and for that 
 purpose she files the record of judgment, whereupon the court 
 appoints three reputable and disinterested freeholders, commis- 
 sioners to make admeasurement of the dower out of the lands 
 described in the record, and the commissioners so appointed are 
 required, as speedily as may be, to admeasure and set off the one- 
 third part of the said lands to the widow as her dowex. (2 B. S. 
 
ASSIGNMENT OF DOWEB. 591 
 
 part 3, ch. 5, Ut. 1, § 55. 2 Stat, at La/rge, 321.) It has been held 
 that these provisions of the statute substituting the actioi^ of eject- 
 ment to recover dower in lieu of the writ of dower affect only the 
 fwrms or mode of proceeding in prosecuting the suit, and do not 
 alter or modify the right or interest of the widow in the land. 
 {Tates V. Paddock, 10 Wend. R. 529.) 
 
 § 423. In England a widow cannot recover her dower without a 
 previous demand for it; and, in general, a previous demand is 
 necessary to maintain an action for it in the United States. In 
 New York the action of ejectment may be brought before demand 
 of dower, but in that case the widow does not recover costs, pro- 
 vided the action is brought for dower in real property aliened by 
 the husband. {Code qf Procednwe, % 307.) 
 
 "When a demand is held to be necessary, it may be made by 
 parol, and "by the widow in person or by her attorney or agent. 
 The demand should be made of the tenant of the freehold at the 
 time it is made, and it should describe with reasonable certainty 
 the land in which the dower is claimed. ( Vide Baker v. Baker, 
 1 Qreenl. R. 61. Zea/vitt v. Zamprey, 13 Pick. E. 382. Page v. 
 Page, 6 Cush. B. 196. Pinkham v. Gear, 3 JV. H. B. 163. 
 Saynes v. Powers, 2 Posterns B. 590. Watson v. Watson, 1 Eng. 
 Z. and Eg. B. 371.) The demand is held to be sufficient if it 
 apprise the tenant with reasonable certainty with respect to the 
 claim. {Davis v. Walker, 42 If. H. B. 482.) And the description 
 will be deemed sufficient if it give notice to the tenant to what 
 land the demand refers. {Atwood v. Atwood, 22 Pick. B. 283.) 
 But a demand for dower made by an attorney in fact, in virtue of 
 a power authorizing him, for the constituent and in her name and 
 behalf, to demand her just dower to be assigned to her " in any 
 and all of the beforementioned premises, or any other," no premises 
 whatever being mentioned in the instrument, was held by the 
 supreme judicial court of Massachusetts to be insufficient, although 
 such authority is subsequently ratified by the constituent by a 
 second power of attorney, in which she recites the former, and 
 authorizes the same attorney to commute for and settle all her 
 claims of dower in the premises, no premises being otherwise men- 
 tioned in such power of attorney than by reference to the former 
 power. {Sloan v. Whitman, 5 Cush. B. 532.) The same court 
 held in another case that the demand of dower need not be made 
 in writing. {Page v. Page, 6 Cush. B. 196.) 
 
692 LAW OF COVERTURE. 
 
 Under tlie Eevised Statutes of Massacliusettg, a woman, Lefore 
 commencing her a,ction for dower, must make personal demand of 
 the tenant of the freehold, if within the commonwealth, and when 
 there is more than one person seised of the freehold a personal 
 demand must be made on each of them. A written demand upon 
 all, served by handing a copy to one personally, and leaving copies 
 at the dwellings of the others, was held insufficient. {Burbanh v, 
 ;Day, 12 Mete. E. 557. . But mde Gen. Stat. 1860, ch. 135, § 3.) 
 
 When a demand is alleged in the writ, > and is not denied in the 
 pleadings, it is not necessary for the demandant to prove it. {Ayer 
 V. Spring, 10 Mass. R. 80.) 
 
 In New Hampshire it has been held that the statute of limita- 
 tions begins to run from the time the widow's right accrues to a 
 writ of dower after a demand, and not when she became entitled 
 to her dower upon the death of her husband. {Bobin v. Flanders, 
 33 i\7'. H. B. 524.) 
 
 § 424. But the common law remedy for the recovery of dower 
 by action, has been generally superseded by a convenient and 
 summary mode of assignment of dower, by commissioners appointed 
 by courts of probate and other competent tribunals, under special 
 statutory enactments. Thus, in the State of New York, it is pro- 
 vided by statute, that any widow whose dower has not been 
 assigned within forty days after the decease of her husband, may 
 apply, by petition, for the admeasurement of her dower, to the 
 supreme court, or to the county court of the county in which 
 the lands subject- to dower lie ; or to the surrogate of the same 
 county, specifying the lands to which she claims dOwer. Notice of 
 the time and place of presenting the petition has to be served on the 
 proper parties, all of which is prescribed by the statute, and if 
 the widow do not make her demand of dower, by commencing a 
 suit, or by an application for admeasurement as prescribed, the 
 heirs, or any of them, or the owners of the land subject to dower, 
 claiming a freehold estate therein, may make a similar application 
 to a similar court for such admeasurement of the widow's dower. 
 Upon the application being made as prescribed, the court may, 
 upon hearing the parties, order that admeasurement be made of . 
 such widow's dower of all the lands of her husband, or of such 
 part thereof as may be specified in the application ; and thereupon 
 appoint three reputable and disinterested freeholders commis- 
 sioners for the purpose of making the admeasurement. These com- 
 
ASSIGNMENT OF DOWEE. 693 
 
 missioners are required to go on and admeasure and lay off the 
 widow's dower according to certain rules prescribed, and make a 
 report of their proceedings to the court, and on the report being 
 confirmed, the widow may bring and maintaiij an action of eject- 
 ment to recover the possession of the lands admeasured to her for 
 her dower, and, upon recovery, she may hold the same during her 
 natural life. The practice and manner of proceeding are fully 
 prescribed by statute. (2 B. S. pa/rt 3, oh. 8, tit. 7, §§ 1-27. 2 Stat. 
 at Large, 510-515.) Tinder this statute it has been held, that, in 
 proceedings before a surrogate by a widow, to obtain admeasure- 
 ment of dower, it is necessary to give notice of the proceedings 
 only to the tenant of the freehold; tenants for years are not 
 entitled to notice. {Ward y. Kitts, 12 Wend. R. 137.) And 
 again, that on a proceeding before a surrogate for the appoint- 
 ment of admeasurers of dower, an inquiry, wether a set- 
 tlement has been made by the husband in lieu of dower, cannot be 
 gone into ; if there be a defense to the widow's claim of dower it 
 must be set up when she brings her action for the recovery of the 
 part assigned to her. {Hyde v. Hyde, 4 Wend. H. 630.) If one 
 of the admeasurers dies before the execution of his trust, the 
 vacancy may be supplied by a new appointmenf made by the sur- 
 rogate for the time being, although the original appointment was 
 made by his predecessor. {Oale v. Edsall, 8 Wend. R. 460. And 
 vide White v. Story, 2 HilVs R. 543.) And when, in proceedings 
 before the surrogate for the admeasurement of dower, due notice 
 of the application was given to the tenant, who did not attend 
 before the surrogate, and the latter appointed three commissioners 
 according to the statute, but on ascertaining that one of them could 
 not serve by reason of ill-health, substituted another in his place ; 
 it appearing from the surrogate's return that both the first appoint- 
 ment and the substitution took place on the day for which the 
 apphcation was noticed ; it was held that the whole might be 
 regarded as one continuous act, and the substitution therefore 
 regular without any additional notice. ( WMte v. Story, 2 SilVs 
 R. 543.) 
 
 Similar provisions are made by statute for the admeasurement of 
 dower, in most or all of the states ; in some by the court of pro- 
 bate, in some by the orphan's court, and in some by commissioners 
 appointed by the county court, and the practice is regulated by 
 statute or x-ule of court. 
 75 
 
694 LAW OF COVERTURE, 
 
 In the State of Yirginia, an assignment of dower made by com- 
 missioners under an order of court, at the instance of one of several 
 co-heirs, is held to be binding on the widow, provided it be a just 
 and full assignment, and it is binding on the co-heirs even if they 
 are infants. {Moore v. Waller, 2 Band. B. 418.) 
 
 When an assignment of dower was made by the commissioners 
 duly appointed, but the court never confirmed or acted upon their 
 report, although the doweress took possession of the land assigned, 
 and the heir acquiesced and took a lease of the land, it was held 
 by the court that the assignment was good and effectual. {Hick- 
 man V. Irvmg, 3 Dana^s R. 124.) 
 
 In the State of Massachusetts, it is not necessary that the com- 
 missioners appointed by the judge of probate to assign dower 
 should be freeholders of the county where the husband last dwelt. 
 {Miller v. Miller, 12 Mass. B. 454. And vide Gen. Stat. ch. 90, § 
 3.) The judge of probate in Massachusetts has no authority under 
 the statute to assign dower in mortgaged lands in opposition to the 
 mortgagee. {Baynkam v. Wihnarih, 13 Mete. B. 414.) Nor in 
 lands whereof the. husband did not die seised. {Sheaf e v. 0''Neil, 
 9 Mass. B. 9.) But the widow of a mortgagor of real estate, who 
 has released her dower therein, is nevertheless entitled to have 
 dower assigned to her in the mortgaged premises, the mortgage 
 debt still subsistihg, upon a petition to the court of probate there- 
 for, under the statute, provided the mortgagor died seised, and 
 neither the mortgagee nor the heirs or devisees of the mortgagor 
 object to such assignment. {Henry's case, 4 Gush B. 257.) 
 
 In the State of Michigan, notice to the administrator of proceed- 
 ings in the probate court for the assignment of the widow's dower 
 under the statute, is not necessary. {Matter of Canvpbell, 2 Doug. 
 B. 141.) 
 
 In Kentucky, the jurisdiction of county courts in allotting 
 dower is special, and their records must show every fact required 
 by statute ; and an allotment of dower by such courts is a pro- 
 ceeding im> rem, operating as general notice, and no other notice is 
 necessary. The allotment merely fixes the bounds of the land 
 allotted. {Stevens v. Stevens, 3 Dana^s B. 371.) The county court 
 has no right to appoint commissioners to assign dower, except in 
 cases where the husband died seised of the land ; in cases where 
 the husband alienated, lands before his death, the circuit court has 
 jurisdiction. {Buitoh v. Cunningham, 4 Bill's B. 462.) And 
 
ASSIGimSNT OF SOWER. 595 
 
 dower can only be assigned by the county court upon the applica- 
 tion of the widow or heirs, or some one having a legal interest in 
 the land. {Shield v. Batts, hJ.J. Mm'sh. B. 13.) And the order 
 of such court, appointing commissioners to assign dower, ought to 
 show on whose application it was made. {Smith v. Maxwell, 3 
 Litt. B. 471.) The appointment of commissioners, however, is 
 prima facie evidence of a lawful application ; and a statement in 
 the commissioners' report that they were duly sworn before pro- 
 ceeding to execute them, is sufficient evidence of the fact. ( Wil- 
 liams V. Morgan, 1 Litt. B. 167.) But when an order appointing 
 commissioners to assign dower has been set aside, and new com- 
 missioners appointed, any report afterward made by the former is 
 void, and cannot be rendered valid by any order of the com-t. 
 {Smith V. Maxviell, supra.) 
 
 It may be affirmed generally that when dower is assignable by 
 commissioners under these summary proceedings,, the husband 
 must have died seised of the lands from which the dower is claimed, 
 or, at least, the right must not be disputed by the heirs. The 
 widow's only remedy in case of dispute with respect to her right 
 is by a suit. {Sheaf e v. O^Weil, 9 Mass. B. 9. French. x. Crosby, 
 23 Mavne B. 276. Hollomon v. Hollomon, 5 Smedes <& Marsh. 
 B. 559. Stiver v. Gawthorn, 4 Dev. & Batt. B. 501.) 
 
 § 425. The statutory provisions for the summary admeasurement 
 of dower do not in general vary the .right to dower, or supersede 
 the old remedy, but they are designed to institute a more easy and 
 certain mode of obtaiaing the widow's dower. This method of 
 proceeding for the assignment of dower is not always uniform in 
 respect to the nature of the proceeding, in the different staltes. 
 Usually the proceeding is called a petition, but in some states it is 
 called a complaint, although it is in fact everywhere, in its nature, 
 summary. Thus, in Yermont the proceeding is called a complaint ; 
 and in the State of New York the widow may proceed by petition 
 for the admeasurement of dower, or she may proceed by complaint, 
 and the complaint may be regarded under the code either as in 
 place of the petition or as a bill in equity, and not as an act of 
 ejectment. {Townsend v. Townsend, 2 Sand. B. 711.) The pro- 
 ceeding is founded on the assumption that the widow is entitled to 
 her dower out of the estate in question, and that it is only to be 
 designated and set off. There is generally no provision for trying 
 the title to dower in this proceeding, and the admeasurement which 
 
596 LAW OF COVERTURJS. 
 
 is made does not affect or prejudice the right to dower, or the legal 
 or equitable bar to it. Those rights, if litigated, remain open for 
 investigation in the ordinary course of justice. The admeasurers 
 are not to do execution as the sheriff does when the dower is 
 assigned in an action, on a writ of habere facias possessionem. If 
 the right to dower be denied, the party may protect his possession 
 notwithstanding the admeasurement, and drive the widow to her 
 action at law. {Matter of Ifatkvns, 9 JoJvns. H. 246. Jackson v. 
 Ramdal\ 5 Cow. B. 168, 169.) The chief object of the proceedings 
 is to ascertain the extent of the widow's dower, and save difficulty 
 and contention between her and the heir or tenant. ( Williams v. 
 Morgan, 1 Litt. B.IGI.) And the record of the assignment of 
 dower, in the absence of positive proof, is presumptive evidence 
 that the assignment was made upon the petition of the widow and 
 with her assent, as the proceeding is for her benefit. So held in 
 Massachusetts. {Tilson v. Thomson, 10 Pick. R. 359.) 
 
 In Alabama it is held that the statutory method of assigning 
 dower is merely cumulative, and does not at aU affect the jurisdic- 
 tion of the common law courts on the subject. {Johnson v. Weil, 
 4 Ala. R. 166.) And in Pennsylvania the common law courts 
 have concurrent jurisdiction with the probate court in the matter 
 of the admeasurement of dower ; and in some cases the probate 
 court has no jurisdiction. {Brown v. Adamis, 2 Whart. R. 188. 
 Evans v. Evans, 9 Boar's R. 190. But vide Bratton v. Mitchell, 
 1 Watts' R. 113. Rittenhouse v. Levering, 6 Watts & Serg. R. 
 190.) In the State of Missouri the proceeding is in the form of a 
 petition, and the assignment is made by commissioners ; but a writ 
 of possession issues, and the proceeding does not supersede the 
 "writ of dower." The practice is similar in New Jersey. 
 
 In South Carolina the petition is to a common law court, which 
 issues a writ for admeasurement to commissioners, and the commis- 
 sioners are required to put the widow in full possession of the 
 lands set off to her ; and the practice is substantially the same in 
 Delaware. 
 
 The admeasurement of dower is ordinarily founded upon the 
 application of the widow, though in some states it may be done on 
 the petition of the heirs, and in others upon the application of the 
 heir or other party interested. 
 
 In some of the states the statute of limitations constitutes no 
 bar to the widow's claim of dower, and in others it does. But a 
 
ASSIGNMENT OF DOWER. 597 
 
 statute of limitation in common form is held inapplicable to dower, 
 for the reason that the wife has no seisin,* {Jones v. Powell, 6 
 Johns. Oh. JR. 194) 
 
 § 426. As has been before intimated, Where dower is summarily 
 admeasured, the proceedings are not usually the foundation of a 
 judgment, upon which a writ of possession issues ; but the widow 
 stm has to institute a suit to obtain possession of the land set off 
 to her, unless it is amicably conceded to her. But when the widow 
 resorts to the common law courts to recover her dower, on recovery, 
 the sheriff makes the assignment, and under the wi:it of seisiii 
 delivers to the demandant possession of her dower by metes and ■ 
 bounds, if the subjects be properly divisible and the lands be held 
 in severalty. {Co. Idtt. 34. 4 Kenfs Oo'in. 63.) If the sheriff makes 
 an improper assignment of dower, it will be set aside by the court, . 
 and in some cases he will be punished. Thus, when the sheriff 
 returned that he had assigned to the widow for her dower of a 
 house, the third part of each chamber, and had chalked it out for 
 her, the court held this an idle and malicious assignment, and the 
 sheriff was committed for it, as he ought to have assigned to her 
 certain chambers or rooms. {Hoviwrd v. Cavendish, Palmi. JR. 264. 
 1 Greenl. Cruise, 171. Vide also Zongvill's case, 1 JKeb. JR. 743.) 
 And in one case, where the heir sought relief against an assign- 
 ment of dower by the sheriff, on the ground that a third part of| 
 the land was assigned' without taking notice of a coal work that 
 was on the estate, offering the widow one entire third, both of the 
 land and boal work, by way of rent-charge on the whole, the court 
 ordered that she accept the offer, or that otherwise a new assign- 
 ment of dower should be made. {Hobby v. JHoUby, 1 YernovUs 
 R. 218.) 
 
 If the widow be entitled to dower out of manors and lands, the 
 sheriff must assign to her one-third part of each, by metes and 
 bounds. {lAit. § 36.) The reason is, that it is more eligible and 
 conveUient for the widow and tenant of the lands to enjoy their 
 shares in severalty than in common. But if the writ directed to 
 the sheriff command him to deliver possession of a third part of aU 
 lands and tenements,; and there were lands in meadow, pasture 
 and com, he would act in obedience to the writ by assigning dower 
 
 * For a fall and elaborate discossion of the different matteM hinted at, in this seotion.tha 
 student is referred to 1 RWiard on IReal Property, 150-153, where the authorities are also appro- 
 priately cited. 
 
598 LAYT OF COVERTURE. 
 
 in toto out of those descriptions of lands, and his return to the 
 court of having done so would be approved. {Moore, 12 pi. &Q.) 
 
 The sheriff is a mere ministerial oflScer, and can only assign 
 dower according to the rule of the common law and the tenor of 
 the writ addressed to him by the court. If, therefore, the subject 
 out of which dower is to be assigned be divisible into shares, and 
 he does not return that he has delivered seisin of a third part of it 
 by metes and bounds, the assignment cannot be supported. But it 
 is not necessary for him to state in his return to the court the 
 particular fields which he has allotted for the widow's third ; it 
 will be suflScient if he mention with certainty and precision of 
 what such third consists. {Howa/rd v. Cavendish, Pahn. B. 264. 
 Vide also Den v. Abingdon, D(mg. B. 466. Fenny v. Dv/rrant, 
 1 Barn. & Aid. B. 40.) 
 
 When the property does not admit of an assignment of dower 
 in severalty, either from the nature of the husband's interest in it 
 or from the quality of the thing itself, an assignment by metes and 
 bounds will by necessity be dispensed with. An instance of this 
 kind occurs in the case of a tenancy in common, and another in 
 the case of coparcenei's. {Fitzherbert^s Watura Brevium, 149. 
 Perh. § 412.) 
 
 § 427. But it is necessary to refer to the principles and rules with 
 respect to the admeasurement of dower as settled by the author- 
 ities in the United States. Generally speaking they are the same 
 as those which have prevailed in England ; but in some instances 
 they have been considerably modified. Though dower must, in 
 general, be assigned by metes and bounds, yet there are exceptions 
 to this rule ; for example, where the subject-matter is of such a 
 nature that no division can be made which will give the parties the 
 enjoyment of their respective shares in severalty, in which case it 
 may be so assigned as to give the widow one-third of the profits, 
 or the parties may have an alternate occupation of the entire prop- 
 erty. In the case of incorporeal hereditaments, the dower must 
 be assigned in a special manner, having respect to the nature of 
 the subject and the mode of enjoyment. This is quite reasonable, 
 and there is nothing new in the rule. It is as old as Littleton and 
 Coke, but it has been frequently referred to and explained in this 
 country. Where part of a dwelling-house is assigned to the widow 
 for her dower, it must often be necessary to allow her the use of 
 some of the halls and passages in common with the heir or tenant, 
 
■ ASSIGNMENT OF DOWEB. 699 
 
 as the only mode in which she can have the beneflcial enjoyment 
 of her part of the property. Sometimes the claim of dower is in 
 a mill, a division of which is impracticable. Then, the widow 
 must be endowed in a special manner, as by having every third 
 toU-dish, or the entire miU every third year or month, or by taking 
 a share of the profits in some other foim. And in mines which 
 have been opened in the life-time of the husband, if dower cannot 
 be assigned by metes and bounds, the parties may have an alter- 
 nate occupancy of the whole, or the widow may take a third of the 
 rents and profits. {Ooates v. Gheever, 1 Cow. B. 460. And vide 
 StougMon v. Leigh, 1 Taunt. B. 402.) There are cases where the 
 thing is of such a quality that no division can be made which will 
 give the parties the enjoyment of their respective shares in 
 severalty. 
 
 Where the premises in which dower was claimed consisted of a 
 village lot with a dwelling-house thereon, and the commissioners, 
 among other things, assigned to the widow particular rooms in the 
 house, with the right of using the stairways, halls and other pas- 
 sages, so as to afford ingress and egress for the enjoyment of the 
 rooms, the court held that it was not an assignment to which the 
 tenant could legally object ; although it is a question, perhaps, 
 whether the widow might not properly object to having " a cham- 
 ber within the house of another man," but there is nothing found 
 in the book to relieve the man from the " trouble and vexation " 
 which may follow. ( White v. Story, 2 HilVs B. 543.) This does 
 not conflict with the authority of Rowa/rd v. Ca/oendish, Palmer's 
 B. 246, where the sheriff assigned to the widow a third part of 
 each chamber, and chalked out her part, and the court held it an 
 idle and malicious assignment and committed the sheriff to prison. 
 On the contrary, the New York supreme court recognized the case 
 as authority, but remarked that it decided nothing against the 
 principle of assigning to the widow the whole of particular rooms 
 in the house. {White v. Story, supra, 549.) The premises being 
 a single lot and building, the widow consenting, particular rooms, 
 with the use of the halls and passages so as to give ingress and 
 egress, may be set apart as dower. {Barks v. Ha/rd&y, 4 Brad. 
 B. 15.) 
 
 In South Carolina, an assignment of an entire tract, in lieu of 
 one-third of each separate tract, may be set aside. {Scott v. Scott, 
 1 Bay's B. 504.) But in Delaware dower may be assigned in one 
 
600 LAW OF COVERTURE. 
 
 tract for the whole, according to the English rule, the court holding 
 that in general this is the mode of assignment in cases of intestacy, 
 and against, the heir; but that as against devisees or purchasers 
 from the husband, dower is to be assigned, if practicable, in the 
 separate parcels. {Coulter v. Holland, 2 Mafr. H. 330.) ■ 
 
 In North Carolina, it is provided by statute that the assignment 
 need not embrace one-third of each tract; but the jury may allot 
 the same in one body or several, or one or more tracts. {Rev. Code 
 1855, ch. 118, § 3j) And in Massachusetts, in the assignment of 
 dower, the commissioners are to regard the annual income of the 
 estate out of which dower is to be assigned, and set off to the widow 
 so much as will yield her one-third of such income, in parcels best 
 calculated to the convenience, of herself and heirs. {Leonardo. 
 Leonard, 4 Mass. B. 533. Miller v. Miller, 12 i5. 455.. Conner 
 V. Shepherd, 15 ib. 164. And vide Jones v. Bremer, 1 Pich. JR. 
 314. Gen. Stat. ch. 90, § 5.) 
 
 In 1796, in the State of Massachusetts, a widow was allowed 
 dower in yiffo^ parts of the great sheep pasture in l^Tantucket. 
 {Coffin V. Coffin, 4 Dane's Air. 674.) 
 
 In 'New Jersey it is held that a widow is not bound to claim or 
 take dower eritire out of the whole plantation in possession of the 
 husband's heirs, but may recover it in parcels of the several tenants 
 in possession. {Sip v. Zahimok, 2 Ha/rr. R. 442.) The general 
 rule is, that dower is to be assigned in separate parcels, and by 
 metes and bounds, if practicable ; but if impracticable, then it 
 may be assigned out of the rents and profits, or the parties may 
 occupy the whole alternately. {Matter of Chase, 1 Bland's R. 
 206. Stevens v. Stevens, Z Dana's R. 373. Hyserv. Stoker, 3 £. 
 Mon. R. 117. And vide Pierce v. Williams, 2 Penn. B. 709.) 
 And in Yermont, Maine, New Hampshire, Ehode. Island, and per- 
 haps some other states, it is expressly provided by statute that the 
 widow shall take one-third of the rents and profits, if no division is 
 practicable. In Kentucky the widow may elect to have the prop- 
 erty every third year, or one-third of the rents, issues and profits. 
 In Illinois and Missouri, when the commissioners for assigning 
 dower report that a division will be injurious, the widow is to have 
 the yearly value in lieu of dower, to be assessed by a jury. In . 
 Georgia, if the property is situate within a city, or village, or public 
 place of business, the commissioners are to assign the dower accord- 
 ing to quantity or valuation, at then- discretion. ( Vide 1 HUliard's 
 
ASaiONMENT OF DOWER. 601 
 
 Meal Prop. 136.) In Alabama, dower is not admeasured under 
 the statute unless it can be designated by metes and bounds. If 
 tie admeasurement cannot be made in that way, compensation 
 must be made in money. {Barney v. Frownojr, 9 Ala,. R. 901. 
 But vide Adams v. Ba/rrow, 13 il. 205.) And when compensation 
 is made in money in lieu of dower, it must be by way of an annual 
 payment corresponding with the annual value of the dower interest 
 during the life of the doweress, and the payment should be secured 
 by a mortgage on the estate. {Beamis- t. Smith, 11 Ala. B. 20.) 
 The rule in this regard is substantially the same in South Carolina. 
 {HaywoM'd v. Cwthhert, 3 Brevard^ s R^ 482. Zesesue ^.Russell, 1 
 Bay's R. 459.) 
 
 When the widow agrees to take a sum of money in lieii of her 
 dower, the amount agreed upon must be paid, or the widow may 
 recover her dower. {Sargeant v. Roberts, 34 Maine R. 135.) 
 
 § 428. It is well Settled that the right to have the assignment of 
 dower by metes and bounds may be waived by the widow, and in 
 such cases an assignment to hold her dower in common and not in 
 severalty will be binding upon her. If the widow be dowable of 
 several manors, lands,: tenements and commons, she may accept an 
 assignment for life of any one or more of them in lieu of her dower 
 in all the rest ; and such assignment confirmed by entry will bind 
 her, although it may be less than the value of her third part of 
 each. {Rowe v. Power, 5 Bos. c& Pull. R. 1, 33. Cootes v. Zam- 
 iert, 9 Yin. Abr^ 256.) But mere consent to accept dower contrary 
 to the common right wiU not be sufficient to bind the widow. 
 (1 Roper'' a Husband amd Wife, 400.) 
 
 Where rent was granted by the tenant in tail out of the estate 
 to the widow, who was entitled to dower out of the lands, in lieu 
 of her dower, which she accepted, it was determined to be a good 
 assignment, to the extent at least of excluding her right to endow- 
 ment while the rent continued and was not determined by the 
 issue in tail. {Biahley v. BicMey, Anderson's R. 287.) And if 
 the widow recover judgment for her dower out of certain lands, 
 and before execution she accepts from the tenant an assignment of 
 a rent out of them, this assignment will be a good answer by the 
 tenant to a scire-facias brought by her to obtain execution upon 
 the judgment, because the assignment is a compliance with and 
 satisfaction of the judgment. ( Vide Hanger v. Fry, Oro. EUz. 
 310. But vide Sargeant v. Roberts, 34 Maine R. 135.) 
 76 
 
602 LAW OF COVERTURE. 
 
 Upon this subject Mr, Eoper remarks : " It is observable that 
 it was the widow's consent, entry and acceptance which in the 
 above instances gave validity to the particular assignment of dower 
 against common right. But her consent will not avail to establish 
 them when, from the nature of the transaction, she cannot have 
 the like estate or interest in the subject assigned in lieu of dower 
 as she would have had if her dower had been assigned in the 
 regular way, viz., during her life. It may therefore be considered 
 as settled at law, that an assignment, with the consent and accept- 
 ance of the widow, of something, in lieu of dower, to which she is 
 entitled of common right, must either be of some part of the lands 
 of which she is dowable, or of a rent issuing out of them, and for 
 such an interest as may endure for life ; and that if any of these 
 particulars be wanting, the assignment wiU be void." (1 Roper's 
 Husband and Wife, 401, citing Co. Litt. 34 5.) . 
 
 It was at a very early day expressly decided that if, after the 
 death of the husband, the heir makes an estate to the wife for life 
 of any land whereof she is dowable, in full satisfaction of her 
 dower, that is no bar of dower. This was on the supposition that 
 the estate given in lieu of dower was eflfectually conveyed to her, 
 and it proceeded on the principle that a right to an estate of free- 
 hold could not be barred by acceptance of any collateral recom- 
 pense. ( Vernon^s case, 4 CoMs B. 1. Turney v. Sturges, Dyer's 
 B. 91.) 
 
 § 429. The assignment of dower must be for the widow's life, 
 whether it be of common right or of a compensation in lieu of 
 dower. Besides, the assignment must be absolute, and not subject 
 to be defeated by any condition, nor lessened by any exception or 
 reservation. {Go. Litt. 34.) It has been held, however, at law, 
 that where dower is assigned upon condition, the assignment would 
 be good, but the condition void. Thus, if dower were assigned of 
 the land with the exception of the trees growing upon it, the 
 exception would be void. {Bullock v. Finch, 1 Boll. Ahr. 682.) 
 In equity, however, under the doctrine of election, the widow 
 would be considered to be excluded from her dower in those 
 instances, if she .accepted the compensation in lieu of it, or the 
 assignment made upon conditions. {Birmingham Vv Kirwan, 2 
 8ch. S Zefroy^s R. 444.) Should the sheriff, heir, or tenant assign 
 more to the widow than a third part of the subject in which she 
 is entitled to dower, the remedies vary according to the persons by 
 
AsswifMEm' OF Downs. 603 
 
 whom it was assigned. If it be assigned by the sheriff, his mis- 
 take in assigning more than one-third for dower will be corrected 
 npon sdre-facias for an assignment de novo by the heir or tenant. 
 (Howa/rd v. Cavendish, Palmer's R. 266, 1 BrigMs Husband 
 and Wife, 380.) And if the assignment be of lands not comprised 
 in the judgment, they may be recovered back by an ejectment ; 
 for whatever is included in the sheriff's return, and not authorized 
 by the judgment, to that extent the execution is void. {Brock v. 
 Lvndsey, 2 Ld. Baym. R. 1293-1295.) If the widow should be 
 lawfully evicted of her dower which has been assigned to her, she 
 will be entitled to be endowed anew ; and then she will receive the 
 full third part of all the real estate of her deceased husband of 
 which she is by law dowable. {Soott v. Ham,opck, 13 Mass. R. 
 162, 168. Vide also St. ClaAr v. Williams, 1 Ohio R. M7. Sin- 
 gleton V. Singleton, 5 Bana's B. 87. Pierson v. William^s, 23 Miss. 
 R. 64. WiUet v. Beatty, 12 B. Mon. R. 172.) 
 
 Equity has given relief against a partial or improper return by 
 the sheriff. {Holy v. Holy, 1 Vern. R. 218. Sneyd v. Sneyd, 1 
 Atk. R. 442.) This case, however, was decided many years ago, 
 and it is doubtful whether courts of equity would at the present 
 day entertain jurisdiction, if it appeared that the party aggrieved 
 might have adequate redress in the court of law under whose 
 authority the sheriff acted. And in a case decided in the English 
 court of chancery, in 1822, the master of the rolls expressed the 
 opinion that there was no jurisdiction in equity to set aside a sale 
 by a sheriff under an execution, but that the proper course was to 
 apply to the- court of law from whence the process issued. {Strat- 
 ford V. Twynam, cited in 1 BrigMs Huslamd amd Wife, 381.) 
 
 "When the assignment of dower is made by commissioners under 
 the statute, the commissioners have the same powers as a sheriff 
 under an execution upon a judgment in dower ; and if they make 
 any mistake in the method of making the admeasurement, or of 
 the quantity assigned to the widow for her dower, the proper cor- 
 rection will be ordered by the court on the coming in of their 
 report. {Ooqtes v. Cheever, 1 Ooib. R. 460. Matter of Sha/w, B). 
 176. Hawkins v. Hall, 2 Bay^s R. 449.) When, on application to 
 the surrogate, dower has been duly admeasured and assigned, 
 pursuant to the statute, and there has been no appeal or review of 
 the proceedings, the admeasurement, until reversed, is conclusive 
 in an action of ejectment brought by the widow, as t© the part 
 
604 LAW OF covehture. 
 
 which she is entitled to recover. {Jackson v. Nhson, 17 Johns. R. 
 123^ But, as has been before intimated, although the admeasure- 
 ment of dower is conclusive, as to the part to which she is entitled, 
 if entitled at all, it is no evidence in New Tork, of her title, and 
 she must make proof of it as in other cases. {Jackson v. Sandall, 
 6 Cow. S. 168. Jackson v. De Witt, 6 *S. 316. Jackson v. 
 Chv/rchill, lib. 287. Pariks v. Mardey, 4 Brad. R. 15.) 
 
 § 430. When the assignment is made, not by the sheriff, or commis- 
 sioners appointed under the statute, but by the heir, then if he be of 
 full age, and were under no disability when he made the assignment, 
 although the assignment exceeded the widow's one-third part of 
 the value of the estate, a court of law would not relieve him 
 against it. {Stoughton v. Leigh, 1 ToAjmi. B. 404, 412.) But. if the 
 heir were under age when he assigned dower, the law protects him 
 against the consequences of an excessive assignment, and supplies 
 him with the writ of admeasurement of dower. ( Yide Eagles v. 
 Eagles, 2 Sayw. E. 181. McOormiok v. Taylor, 2 Cart. B. 336.) 
 This writ is addressed to. the sheriff, directing him to make the 
 admeasm'ement filially. It is not. made returnable, and the parties 
 may plead before him if they think proper. The books differ in 
 regard to the time when the heir is. entitled to issue the writ; 
 whether before he is of full age or not ; but reason and principle 
 seem to be in favor of the irule that he is entitled to the writ during 
 his nonage. {Fitz. W. B. 149. 1 Brighfs Husband and Wife, 382. 
 But vide Co. lAtt. 39.) 
 
 An infant heir who has assigned, too large a portion of lands 
 for dower, cannot defeat the. assignment by entry upon attaining 
 twenty-one, because, the widow being entitled to dower, the assign- 
 ment is good in part' and can only be avoided quoad the excess, 
 which is uncertain previous to admeasurement. {Gil}). Dower, 388. 
 Aind vide 1 Bop. Husband a/rhd Wife, 409. McCormick v. Tay- 
 lor, supra.) According to Mr. Gilbert, if the sheriff, in carrying 
 into effect the writ of execution, did actually assign more than a 
 third part of the lands for dower, when the widow was entitled to 
 a tliii'd only, the heir might bring a scirefdcias, or he would be 
 without a remedy. {Oilb. Dower, 389.) If the lands assigned by 
 the infant heir exceed one-third of the whole, and they become more 
 valuable than the remainder by improvements made by the widow, 
 it is said that a writ of admeasurement will not lie on account of 
 such improvements, as that would be unjust, since she may have 
 
ASSIGNMENT OF SOWER. 605 
 
 been induced to make them nnder a presumption that the assign- 
 ment was proper. But there seems to be no objection to the 
 admeasurement of the lands assigned, and to their taking the over- 
 plus, upon allowing for the value of the improvements of the 
 excess of the lands assigned. {Mts. W. B. 149. 1 BrigMs Eus- 
 land and Wife, 383.) 
 
 § 431. When the heir, on the acceptance of the widow, assigns 
 one tract in lieu of a third part of each of several tracts of the 
 deceased husband's land, this is called an assignment against com- 
 mon right ; and it is a principle in such cases that the widow takes 
 subject to all incumbrances by the husband. If the estate turns 
 out to be more valuable than a third, she may still hold it ; and on 
 the contrary, if it proves less Valuable, she must bear the loss. 
 The important point in every case of that kind is, that the widow 
 has accepted what could not have been lawfully assigned to her 
 against her will. It is a voluntary release of a legal right for 
 something supposed to be equivalent or more. The release must 
 stand, though the consideration fail. This is upon the principle 
 that it would be highly injurious to the public if an innocent pur- 
 chaser should not be protected in such a case. He is not bound to 
 look beyond the deed of release. {Jones v. Brewer, 1 Pioh. R. 31Y, 
 318. Vide also French v. Pratt, 27 Maine B. 381. Sargeant v. 
 BobeHs, 34 ib. 135.) 
 
 "When the tenant assigned to the widow twenty bushels of wheat 
 every year, for her life, out of lands in which she was entitled to 
 dower, that being in the nature of rent, and aoeepied ly her, it was 
 held to be a good assignment of dower. An assignment of rent 
 for dower is said to be against common right, and it is therefore 
 the consent and acceptance of the widow which give validity to 
 the assignment; and her consent will not avail whenj from the 
 natui'e of the transaction, she cannot have the life estate or interest 
 in the STibject assigned in lieu of dower, as she would have had if 
 her dower had been assigned in the usual way during her life. 
 (JElUcott V. Mosier, 11 Ba/rl. B. 5Y4, 5T9.) And we have seen 
 that, except in case of endowment against convmon right, when 
 the widow is evicted from the lands assigned to her as dower, by 
 a title paramount to that of her husband, she is entitled to be 
 endowed anew of a third of the remaining lands. {Ante, § 429. 
 Hollomen v. Hollomen, 5 Smedes <& Marsh. B. 559. Bustard^s 
 case, 4 CoTce's B. 122.) 
 
606 LAW OF COVERTURE. 
 
 § 432. By virtue of the ancient statute' of Merton, 20 Hen. HI, 
 ch. 1, whioh has been expressly or impliedly adopted in most of the 
 United States, the widow is entitled to recover damages from the 
 death of her husband, as well as her share of the land, provided 
 her husband died seised ; but as against an alienee, only from the 
 time that dower is demanded. (1 SilUa/rd^s Real Prop. 144. 4 
 Kenfs Com. 65. Jackson v. O'Dmaghy, 7 Johns. B. 247.) But 
 damages can only be recovered in writs of doWer vmde nihil hahet, 
 and do not extend to the writ of right of dower, because damages 
 can only be given for the detention of the possession ; and in writs 
 of right, when the right itself is doubtful, no damages are given, 
 because no wrong is done till the right is determined. And gen- 
 erally, damages are only due from the time when the claim of 
 dower has been made, for the heir on whom the law casts the free- 
 hold is not bound to assign dower until it is demanded. But this 
 rule is modified by the statutes of some of the states. At common 
 law, no damages were recoverable in dower, and consequently they 
 depend entirely upon the provisions of the statute. {Emhler v. 
 Ellis, 2 Johns. B. 119.) 
 
 In the State of New York the widow is entitled to damages 
 from the death of the husband provided he died seised. She can 
 recover them only against the tenant, and he is liable for them for 
 the whole time, though he has not himself been half the time in 
 possession. {Hitchcock v. Harrington, 6 Johns. B. 290.) The 
 damages by statute are one-third part of the annual value of the 
 mesne profits of the lands in which she recovers dower, to be esti- 
 mated in a suit against the heirs of her husband from the time of 
 his death ; and in suits against other persons, from the time of her 
 demanding her dower of such persons ; and in all cases to be esti- 
 mated to the time of recovering judgment for such damages, but 
 not to exceed six years in the whole in any case. But the damages 
 are not to be estimated for the use of any permanent improve- 
 ments made after the death of her husband by his heirs, or by any 
 other person claiming title to such lands. And when the widow 
 recovers her dower in any lands claimed by the heir of her husband, 
 she is entitled to recover of Such heir, in an action on the case, her 
 damages for withholding such dower from the time of the death of 
 her husband to the time of such alienation by the heir, not exceed- 
 ing six years in the whole ; and the amount recovered from such 
 heir must be deducted from the amount she would otherwise be 
 
ASSIGNMENi' OF DOWER. 607 
 
 entitled to recover from such grantee; and also any amount 
 recovered as damages from sucli grantee, must be deducted from 
 the sum she would otherwise be entitled to recover from such heir. 
 (1 B. 8. part 2, ch. 1, tit. 3, §§ 20, 21, 22. 1 Stat, at Large, 694.) 
 
 When there are several heirs and terre-tenants, the amount of 
 the widow's damages, to which she is entitled for the use of the 
 undivided third of the premises of which the husband died seised, 
 from the death of her husband, exclusive of the improvements 
 since made thereon, must be assessed upon such heirs and terre- 
 tenants respectively, according to the time of their enjoyment of 
 the premises. {Sazen v. Thurber, 4 Johns. Ch. B. 604.) 
 
 The widow is not entitled to recover against the purchaser any 
 arrears which accrued previous to his purchase of the premises. 
 These arrears are to be ascertained, when there is an outstanding 
 mortgage, by deducting one-third of the interest on the amount 
 due thereon at the time of the purchase from one-third of the rents 
 and profits of the property, over and above necessary repairs, taxes 
 and other proper charges thereon. {MusseU v. Austin, 1 Paiges 
 Oh. B. 192.) But if the husband died seised the widow may 
 recover in equity her share of the rents and profits from the death 
 of her husband, although no demand was made by her before suit ; 
 and on her death pending the suit, her executors may revive, 
 although equity cannot give her such arrears in a direct proceed- 
 ing for their recovery, when the husband aliened the premises 
 before his death. {Johnson v. Thomas, 2 Paige^s Ch. JR. 377.) 
 
 § 433. In the State of Massachusetts, damages are recoverable in 
 cases of dower, from the time of demand made on him who was the 
 tenant of the freehold at the time of the demand. {Gen. Stat. 
 1860, ch. 135, § 5. Leamtt v. Lamprey, 13 Pick. B. 382.) And 
 damages are measured in actions of dower by the annual value of 
 the land, and may be assessed by the court, with the demandant's 
 assent. {Perry v. Goodwin, 6 Mass. B. 499.) 
 
 In an action for dower, where the only issues are upon the 
 demandant's marriage and on her husband's seisin, the tenant can- 
 not avail himself of any improvements by him made since the 
 husband's alienation. {Ayer v. Spring, 10 Mass. B. 80.) And 
 when the tenant, a purchaser, pleaded to a writ of dower that he 
 could not deny the demandant's right, but that he made improve- 
 ments on the land, and had assigned to the demandant what was 
 equal to a full third part of the premises as they were at the time 
 
608 LAW OF COVERTOBE. 
 
 of the husband's alienation thereof, upon demurrer, it was held, that 
 as a plea in bar, the plea was bad, and must be construed as admit- 
 ting dower in the premises, without the improvements. {^Steams v. 
 Swift, 8 Pick. E. 538.) If a demandant in a writ of dower dies 
 after she recovers judgment for her dower, but before dower is set 
 out to her, the action dies with her, and judgment for damages for 
 the detention of dower cannot be rendered on motion of her 
 administrator as of a former term. (Atkvns v. Yeomans, 6 Mete. 
 a. 438.) In the State of New Jersey, the rule with respect to 
 damages is substantially the same as in !N"ew Tork ; as against the 
 heir, they are estimated from the husband's death. But it has been 
 held in E"ew Jersey, 1;hat "tout ternps prist" — ready at all times 
 — is a good plea for the heir or devisee of the husband, if he died 
 seised, and he need not aver in his plea that he is heir or devisee. 
 {Hojoper v. Hopper, 1 IT. J. B. 543.) But it is not a good plea for 
 the husband's alienee, who is liable to damages from the husband's 
 death. ( Wood/rwff v. Brown, 4 Harrison^ s B 246. As per 1 HiU- 
 iarWs Real Prop. 144, rhote c.) 
 
 So also the rule is the same in the State of Delaware; and it 
 has been held in Delaware, that interest may be recovered on 
 arrears of an annuity given in lieu of dower, though there be a 
 power of distress. {Houston v. Ja/mison, 4 HarringtorOs R. 330. 
 Zayton v. Butler, 11. 507. And vide 1 HilUard's Beal Prop. 
 144, and note d.) 
 
 In the States of Maine, !N"ew Hampshire, Ehode Island and 
 Maryland, damages are recovered after but not before the dower 
 is demanded ; and in Maine the widow is entitled to one-third of 
 the rents till the dower is assigned. (1 Hilliard's Beal Prop. 
 144, 145. Steiffer v. Hiller, 6 Gill S Johns. B. 121.) 
 
 In Ohio and Alabama, no damages are allowed the widow on 
 the admeasurement or recovery of her dower, but in Ohio the com- 
 missioners for assigning dower are required to appraise the yearly 
 value of the land, from the date of the petition to that of the 
 assignment, and one-third of the amount, deducting any improve- 
 ments by a purchaser from the husband, is decreed to the widow. 
 {Zaws of 1842, 6. 1 HilUard's Beal Prop. 145, note h. Bank 
 V. Dum^eth, 10 Ohio B. 18.) And in South Carolina, interest, 
 or rents, issues and profits are allowed when the husband died 
 seised. {Heyward v. Cuthburt, 1 McCorWs B. 386. Wright v 
 JeTvnings, 1 Bailey^s B. 2Y7. Creary v. Cloud, 2 ib. 343. Biohard 
 
ASSIGNMENT OF DOWEB. 609 
 
 V. Talhm, 1 Bice's Eg. E. 158. Vide also Woodward v. Wood- 
 ward, 2 Mich. Eq. B. 23.) 
 
 In the State of Missouri, damages are recovered to the time of 
 the trial ; and in Alabama from the commencement of the action. 
 In Yirginia, the widow has an accoiint of profits, as against a pur- 
 chaser from the husband, only from the date of. the subpoena. 
 (1 HiZUard's Beal Prop. 145. McClanehan v. Porter, 10 Mo. 
 B. 746. BamJcin v. Oliphant, 9 il>. 239. Beavers v. Smith, 11 
 Ala. B. 20. Smith y. Smith, 13 ii. 329. , Francis v. Garrard, 18 
 iJ, T94. Tod v. Baylor, 4 Leigh's B. 498.) 
 
 In Wisconsin the widow recovers one-third of the profits from 
 the husband's death, from the heir, and from others only from 
 demand. If the heir alienate the land, he is liable to damages 
 from the husband's death to such alienation, not exceeding six 
 years ; and damages are not recoverable against both the heir and 
 purchaser. (1 MiMiard's Beal Prop. 145.) Similar provisions to 
 those of the ancient statute of Merton are contained in the statutes 
 of others of the American States. {Vide Sliarp v. Pettit, 3 
 Yeate's B. 38. Seaton v. Jemison, 7 Watts' B. 5, 33. Marshall 
 V. Anderson, 1 B. Mon. B. 198. McElroy v. Walters, 3 ih. 137. 
 Gauton V. Bates, 4 ih. 367. Davis v. Logan, 9 Dcmc^s. B. 186. 
 Waters v. Goooh, & J. J. Marsh. B. 590. TelVman v. Bowen, 8 
 Gill (& Johns. B. 333. Kiddall v. Trimble, 1 Md. Ch. Beds. 143. 
 Goodhxi/m v. Stevens, lb. 420.) 
 
 § 434. With respect to the principles upon which dower is 
 admeasured, there is a similarity in the laws of the states, though 
 there is not entire uniformity. Thus, in the State of E^ew York, 
 where the land has been aliened during the coverture, the widow's 
 dower is to be taken according to the value of the land at the time 
 of the alienation ; that is to say, the assignment to the widow 
 should be of one-third of the whole estimated value of the prop- 
 erty, deducting the value of the improvements made since the 
 alienation by the husband. {Coates v. Oheever, 1 Cow. B. 460. 
 Humphrey v. PUmney, 2 Johns. B. 484. Borohester v. Coventry, 
 11 ih. 510. Shaw v. White, 13 ib. 179. Bolf v. Bassett, 15 ih. 
 21. Hale v. Jjam,es, 6 Johns. Ch. B. 258. Wallter v. Schuyler, 10 
 Wend. B. 480.) Or, by the terms of the statute now in force, in 
 making the admeasurement, the commissioners are required to 
 take into view any permanent improvements made upon the lands 
 from which the dower is to be assigned, by any heir, guardian of 
 11 
 
610 LAW OF COVERTURE. 
 
 minors, or other owners, since the death of the husband of the 
 widow, or since the alienation thereof by such husband ; and, if 
 practicable, they are to award such improvements within that part 
 of the lands not -allotted to the widow, and if not practicable so 
 to award the same, they must make a deduction from the lands 
 allotted to such widow proportionate to the benefit she will derive 
 from such part of the improvements as may be included in the 
 portion assigned to her. (2 B. 8. part 3, ch. 8, tit. 7, § 13. 
 2 Stat, at Large, 512. Vide also Leonard v. Steele, 4 Barbour's 
 B. 20, 23.) 
 
 Admeasurers of dower, in ascertaining the part to be assigned to 
 the widow, are not authorized to make any deduction in conse- 
 quence of any conveyance of land or other gift made to the wife 
 during coverture. {Hyde v. Hyde, 4 Wend. R. 630.) 
 
 In the State of Massachusetts the right to dower as against the 
 husband's grantees is limited to the value of the premises at 
 the time of the husband's last seisin, and does not include improve- 
 ments made by the grantees and those claiming under them. 
 {Lebbey v. Scott, 4 Dane^s Abr. 675. Ayer v. Spring, 9 Mass. B. 
 8. OatUn v. Ware, lb. 218. Webb v. Townsend, 1 Bieh B. 21. 
 Stearns v. Swift, 8 ib. 535. And vide White v. WilUs, 7 ib. 143. 
 White V. Cutler, 17 ib. 248.) The reason given for the rule is, that 
 the heir is not bound to warrant except according to the value as 
 it was at the time of the alienation, and therefore the wife ought 
 not to recover more against the alienee of the husband ; and the 
 rule is said to be supported in Massachusetts upon principles of 
 public policy, that purchasers may not be discouraged from improv- 
 ing their lands. {Gore v. Brazier, 3 Mass. B. 523, 544. Powells. 
 Monson, 3 Masonh B. 347, 365-370. Parker v. Parker, 17 Pick. 
 B. 236.) But when the heir of the husband makes improvements 
 after the land descends to him the rule is otherwise, for it is said to be 
 his folly not to assign the widow her dower before he makes the 
 improvements. {Oatlin Y.Ware, swpra.) And if the lands have 
 greatly increased in value, not from improvements made upon them, 
 nor from the discovery of any new sources of profit, but from 
 extrinsic causes, as the increase of commerce or population, it may 
 be a question whether, on the extendi ad valentiam, the lands to be 
 recovered in recompense would be valued at the increased price, so 
 that the quantity might be proportionally reduced. {Gore v. Bra- 
 zier, supra.) 
 
ASSIGNMENT OF DOWEB. 611 
 
 In the assignment of dower in MassacliuBetts, the commissioners 
 are to regard the annual income of the estate out of which the 
 dower is to be assigned, and set off to the widow so much as will 
 yield her one-third of such income, in parcels best calculated to the 
 convenience of herself and the heirs, as has been before intimated. 
 {Leonard v. Leonard, 4. Mass. R. 533, Miller v. Miller, 12 ih. 455. 
 Oen. Stat ch. 90, § 5.) 
 
 In the State of Kentucky, an allotment of dower in land aliened 
 by the husband in his life-time, must include one-third in value of 
 the estate, as it was when the alienee took possession. {Mahoney 
 V. Toung, 3 Dmia's B. 588. Wall v. HiU^I ib. 175.) And the 
 rule is substantially the same in the State of Mississippi. ( Wood- 
 hridge v. Wilkins, 3 Mow. R. 360.) So also in Pennsylvania, the 
 rule is similar, and improvements upon lands after alienation by 
 the husband, are not to be included in the admeasurement of dower. 
 {Thompson v. Morrow, 5 Serg. & Rowleys R. 289. Van JDoreri v. 
 Vaji Doren, 2 Penn. R. 697. Shirtz v. Shirts, 5 Wattes R. 255.) 
 So also in the State of Ohio. {Dunseth v. BanJe of the United 
 States, 6 Ohio R. 76.) So also in Alabama. {Bi/mey v. Frowner, 
 9 Ala. R. 901.) And so likewise, in the State of South Carolina, 
 when land has been aliened by the husband, his widow is entitled 
 to dower only according, to the value of the land at the time it was 
 aliened. {Russell v. Gee, 2 Rep. Con. Ct. 254. Brown v. Duncam, 
 4 McCarWs R. 346.) 
 
 The ancient and settled rule of the common law was, that in all 
 cases of alienation by the husband, the widow took her dower 
 according to the value of the land at the time of the alienation, 
 and not according to its subsequent increased or improved value ; 
 and it may be affirmed that as a general rule the same doctrine 
 applies in the American States, when the widow is entitled to 
 dower at all in the lands aliened by the husband during coverture. 
 ( Tide 4 Kenfs Com. 66. But vide Tod v. Bayler, 4 LdgKs R. 
 498.) And so also it is the general rule that when the hei/r 
 improves the estate after the husband's death, as by building or 
 draining, or, if the property be more valuable, by other means at 
 the time of the assignment of dower than at the husband's decease 
 the widow will be entitled to have her dower of the lands so 
 improved and become more valuable, without any allowance to the 
 heir on either of these accounts, because, by the death of the hus- 
 band, the widow's title to dower was consummate, and she was 
 
612 LAW OF COVERTURE. 
 
 entitled to an assignment of it immediately. And upon the same 
 principle the widow must bear a proportion of the loss which may 
 be incm-red in an unavoidable diminution in the value of the lands 
 during the time which intervenes between the death of her hus- 
 band and the assignment of her dower. In other words, as between 
 the heir and the widow, she is entitled to have her dower of the 
 lands according to their value at the time she was entitled to have 
 her dower assigned. This is the doctrine at common law, and as 
 a general rule it is recognize 4 both in this country and in England. 
 {Thompson v. Morrow, 5 Serg. <& HcmWs B. 289. Parle orb Bower, 
 266. Doe v. Gwinnell, 1 Gale di Dav. R. 180.) 
 
 § 435. It has been affirmed as the current of authority in this 
 country, that most unquestionably the widow is entitled to the 
 benefit of any improvement by the heir / because the assignment 
 of dower relates lach to the death of the husband, but any improve- 
 ments by a purchaser of the husband are not to be taken into the 
 account, but dower is to be assigned in that case, according to 
 the value of the land at the time of the transfer ; and that, whether 
 the improvements are made before or after the husband's death, or 
 with or without notice of the widow's right of dower. If the 
 property decreases in value, either through the fault of the heir or 
 the purchaser, it seems the wife has no remedy, and must take 
 dower according to the value of the assignment. 
 
 If, however, the land has increased in value not by the labors 
 of the heir, or of the purchaser, but frord extrinsic and collateral 
 causes, as the increasing prosperity of the country, the erection of 
 manufactories in the vicinity, and the like, the wife shall have the 
 benefit of such increased value, or, in other words, the value at 
 the time of allotment, excluding the ^purchaser's improvements. 
 {Bmg. on Cov. 318, note 3.) This aspect of the subject has been 
 referred to before, and the rule stated is the doctrine in most of 
 the states ; though in New York and Yirginia the rule has been 
 adopted as we have seen, which confines the widow in cases of 
 alienation by the husband, to one-third of the value at the time 
 of the sale by the husband. 
 
 §436. A few words may not be out of place respecting the 
 proof necessary to be made by the widow in her action to recover 
 her dower, or the land set off to her by the commissioners appointed 
 to admeasure her dower. There are certain rules which may be 
 regarded as peculiar, though not exclusively applicable to this 
 
ASSIGNMENT OF DOWMR 613 
 
 class of cases. Thus if one tenant in common of land occupies the 
 whole, and conveys it in fee, his grantor is estopped, in a writ of 
 dower brought against him by the widow of the grantor, to deny 
 the title and seisin of the latter in the whole estate. {Wedge v. 
 Moore, 6 Cush. R. 8.) 
 
 The proceedings under the statute for the admeasurement of 
 dower cannot be impeached in ejectment for the dower for any 
 mere formal irregularity; if enough appears to show that the 
 tribunal making the assignment had jurisdiction, it is sufficient. 
 {Jackson v. Waltermire, 7 Cow. B. 353. Jackson y. Wixon, 17 
 Johns. B. 123. Jackson v. Aspell, 20 ih. 411.) The admeasure- 
 ment of dower in the widow's ejectment is conclusive as to the part 
 to which she is entitled, but is no evidence of her title. {Jackson 
 V. Randall, 5 Cow. B. 168. Jackson v. JDe Witt, 6 il. 316. Jack- 
 son V. ChurcMU, 1 ih. 287.) 
 
 In ejectment for dower against a grantee of the husband by 
 quitclaim deed, or a person holding under such grantee, the 
 defendant is not estopped from showing that the husband was not 
 seised of such an estate in the premises as to entitle his widow to 
 dower. {Sjparrcno v. Kingman, 1 -ZV^. Y. B. 242.) Indeed the 
 rule would seem to be the same if the defendant in such a case 
 holds under a warranty deed from the husband of the plaintiff. 
 The doctrine of estoppel, which naight apply between the grantor 
 and grantee, cannot be set up by the widow of the grantor in her 
 action for dower, for the reason that the covenants of her husband 
 could not estop her. She must be regarded as neither a party nor 
 privy, but a stranger to the conveyance, claiming by paramount 
 title. An estoppel must be mutual, and therefore none exists in 
 the case supposed. {lb. Vide also Ga/unf v. Wainman, 3 Bing. 
 JVew Cases, 69.) The contrary doctrine, however, was held by a 
 current of authorities, from Bancroft v. White (1 Cainss' B. 185), 
 to Sherwood v. Yamdenhough (2 HilVs B. 203) ; but those author- 
 ities are now overruled by the case oi Spa/rrow v. Kingman, deter- 
 mined by the New Xork court of appeals. So also in the State 
 of Maine the doctrine was asserted in several cases that the tenant 
 against whom the widow brought, jher action for dower was 
 estopped from denying that the wife was entitled to dower when 
 the tenant claimed title derived fron; the husband. {Kimhall v. 
 Kimbdll, 2 Cheenl.. B. 226. Nason v. ARert,, 6 ih. 243. Haines 
 V. Gardner, 10 Maine B. 383, Smith \. IngalU, 13 i5. 284. 
 
614 LAW OF COVEETUEE. 
 
 Hamblin v. Bamh of Cumberland, 19 ib. QQ.) Eut this doctrine 
 has been overruled in that state, and the contrary doctrine fully 
 established. In one case where the point was made, Chief Justice 
 Shepley thus disposed of it : " It is insisted that the tenant is 
 estopped to deny the seisin of the husband, as he holds the estate 
 by a title derived from him. While he may not be permitted to 
 deny that the husband was seised, he may be permitted to show the 
 character of that seisin, and that it was not such that his widow 
 would be entitled to dower." {Oa/mmon v. Freeman, 31 Maine S. 
 243.) In a much earlier case the same principle was indicated, 
 though not fully established. {Gamipbell v. Knight, 24 *5. 232.) 
 And in a case decided as late as 1862, the rule was fully settled that 
 a tenant in an action of dower is not estopped from showing that 
 the seisin of the husband was not such as to give his wife a right of 
 dower when he or his grantor has accepted a deed of the premises 
 from the husband and claims under it, although he may be estopped 
 from denying the right of the husband to give the deed. {Foster 
 v. Dwinel, 1 Am. Law. Reg. [iT. S.'\ 604. S. O. 49 Maine E. 44.) 
 
 In New Hampshire the rule upon the subject is substantially the 
 same as in Maine. {Moore v. Fsty, 5 N. H. R. 479. Yide also 
 JEutchins v. Carlton, 19 *5. 487.) And the same may be said of 
 the State of Ehode Island, where it has been held that the accept- 
 ance of a deed-poll conveying with covenants of warranty lands 
 purchased, and taking and holding possession under it, do not 
 estop the grantee from disputing the grantor's title to such lands, 
 prior to and at the time of the conveyance, upon a subsequent 
 claim of dower in the lands by the widow of the grantor. {Ga/rdner 
 v. Greene, 5 B. I. R. 104.) 
 
 The doctrine in Massachusetts upon the subject is the same as at 
 present recognized in New York and in Maine. {Small v. Proctor, 
 15 Mass. R. 495.) But the rule is different in New Jersey, and 
 perhaps in some others of the states. {English v. Wright, Cox's R. 
 437.) Undoubtedly when the defendant in such a case holds 
 under a conveyance from the husband of the widow, prima facie 
 she is entitled to her dower ; but the doctrine of estoppel cannot be 
 properly applied to this class; of cases. And it probably makes no 
 difference whether the conveyance from the husband be a full 
 covenant warranty deed or a simple quitclaim; the reasoning 
 would be the same in each case. {Fmn v. Sleight, 8 Barhowr's 
 R. 401. Foster v. Dwinel, supra) 
 
ASSIGNMENT OF JDOWEB. 615 
 
 The widow in her action for dower can recover only upon the 
 strength of her husband's title ; and she must show a seism in him 
 during coverture, or she vrill fail in her suit. {Poor v. Morton, 15 
 Barb. B. 485. Vide Keator v. Bvmmiick, 46 iS. 168.) But the 
 production of a deed conveying the legal title to the husband, 
 proof that he was in possession of the land, and aliened it during 
 the coverture, and that the defendant claims and holds it, are 
 sufficient, in the absence of evidence, that he holds or claims under 
 adverse title, or any fact inconsistent with the right of the widow 
 to support her claim to dower against the husband's alienee. The 
 widow is not bound to show a regular paper title. ( Wall v. EM, 
 7 Dcma's B. 174. Origgs v. Smith, 7 Ealst. B. 22.) 
 
 Under the Massachusetts statute in relation to the competency 
 of a party to give testimony as to a matter in which thg adverse 
 party is dead, the demandant in a writ of dower is a competent 
 witness to prove her husband's death. {Flynn v. Coffee, 12 Allen^s 
 B. 133.) 
 
 Parol evidence is admissible to prove that land granted to the 
 husband of the demandant is the same land of which dower is 
 demanded. {Keefer v. Young, 2 Hwr. c& Johns. B. 53.) And in 
 ejectment for dower, the admissions of the husband, while living, 
 are competent in bar of the title of the widow. ( Tan JDuyne v. 
 Thayre, 14 Wend. B. 233.) 
 
 His possession of the land in which dower is claimed being 
 proved, the husband's declarations are admissible to show its 
 extent; and office copies of deeds have been held to be admis- 
 sible for the same purpose, without proof of the executibn of the 
 orginals. {Forrest v. TrammeU, 1 Bailey's B. 77.) And in South 
 Carolina it has also been held that, to support her claim for dower, 
 a widow is not obliged to produce the title-deeds to her husband 
 {Smith V. Paysenger, 2 Bep. Con. Ct. 59); but it is sufficient for 
 her to show that her husband had been in possession during 
 coverture ; this raises a presumption of title in him. {Forrest v. 
 TrammeU, supra.) And the same doctrine has been recognized in 
 Maine. {Knight v. Mains, 3 Fairf. B. 41.) 
 
 § 437. "With respect to the estate which the widow acquires by 
 the assignment of her dower, the doctrine of the common law. is 
 that, although the title of the widow is consummate upon the 
 death of the husband, she is not seised, but the heir, and she con- 
 sequently claims through his seisin. But by the assignment of the 
 
616 LAW OF COVEBTUEE. 
 
 dower, the seisin of the heir is defeated db initio, and the doweress 
 is in of the seisin of her husband, as of the time when that seisin 
 was first acquired. Or, as Mr. Cruise collects the rule from the 
 elementary writers, the widow acquires an estate oi freehold by 
 the assignment, without li/oery of seisin ; because dower is due of 
 common right, and the assignment is an act of equal notoriety. 
 As soon as dower is assigned, the widow holds by the institution of 
 the law, arid is in of the estate of her husband j therefore the heir 
 is not considered as having ever been seised of that part of his 
 ancestor's estate whereof the widow is endowed. (1 Oreenl. Cruise, 
 172.) This is the rule at common law, and the same doctrine pre- 
 vails in most of the American States. Thus, in the State of New 
 York, it has been expressly determined by the court of appeals, 
 that by the assignment of dower the seisin of the heir is defeated 
 at initio, and the heir i6 not afterward considered as ever having 
 been seised. And also that a widow, after assignment of her dower 
 in lands of which her husband died seised, is in possession of the 
 seisin of her husband. Her title relates back to the time of the 
 marriage, if the husband was then seised, and, if not then seised, it 
 relates back to the time when he became seised. {Lwwrence v. 
 Brown, 5 i\^. Y. B. 394.' Lawrence v. Miller, 2 ib. 245. Fowler 
 V. Griffin, 3 Sand. B. 3850 
 
 In the State of Massachusetts the rule upon the subject is sub- 
 stantially the same as at common law, and it has been there held, 
 that a widow, having a right of dower, cannot lawfully enter after 
 her husband's death until an assignment be made by the heir, or the 
 tenant of the freehold, or in a course of legal proceedings. When 
 the assignment is made, she acquires no new freehold, but is in by 
 her husband, her seisin being deemed in law to be a continuation 
 of her husband's seisin. {Windham v. Portland, 4 Mass. B. 384, 
 387. YidedlsoSheafeY:0''Neill,^ib.lZ. Jones x. Brewer,! Pick. 
 B. 314, 317. Oonant v. Little, 11. 189, 191.) And the same rule 
 has been expressly recognized by the courts in others of the states. 
 ( Vide Wewi)er v. Crenshaw, 6 Ala. B. 873. Norwood v. Morrow, 
 3 Bait. B. 448. Boss v. Boss, 12 B. Mon. B. 437.) A right of 
 way assigned to a dowager over land of her husband, with her 
 dower, is appurtenant to her estate and expires with it. {floffrhan 
 T. Savage, 15 Mass. B. 130.) 
 
 At common law, when the widow's dower is assigned, her title 
 has Buch a relation to her husband's first and original seisin of the 
 
ASSIGNMENT OF DOWEB. 617 
 
 estate, and the period of the marriage, as to defeat not only all 
 charges and incumbrances which he alone made during the cover- 
 ture after acquiring the estate, but also all debts which he con- 
 tracted during the marriage, in respect of which such property 
 might be affected, without regard to the circumstance whether the 
 debts were owing to a private individual or to the crown. {Mill- 
 wood's case, 4 Coke's B. 64. And vide OiU>. Dow. 407-411.) So 
 also the widow at common law holds her dower discharged from 
 leases made by her husband during the coverture, and she is not 
 bound by his release of a rent, {Stoughton v. Leigh, 1 TavM, It. 
 404r-410. Co. lAtt. 32.) But if the incumbrances have been 
 effected by the husband before the marriage, by securities which 
 did not prevent his vridow's title to dower of the, estate, her 
 endowment will not suspend the rights of the creditors against 
 the third part of the lands assigned to her in dower, because her 
 title, having relation pnly to the time when the marriage' was 
 solemnized, is preceded by the securities of the incumbrances, who 
 are therefore entitled to a priority \ consequently she will be liable 
 to them for the amount of their .demands, tP the extent even of the 
 whole of her dower. {Tide Jorves v. Onffith, 2 Coll. I(. C. 207. 
 Palmer \. Dariby^Prea. Ch. 137i Williams y. Wray, Ih. 151. 
 Hamilton v. Mohvm,, 1 P. Wms. R. 118. Sgwier v. Compton, 2 Pq. 
 Ca. Air. 387. White v. White, 9 Ves. B. 564. Hitohem v. Hitchens, 
 2 Yern. R. 403.) But it is presumed that, as against her husband's 
 general estate, she would be entitled to have her dower exonerated 
 from such incumbrances. If, however, the debts are not of the 
 husband's contracting, as when the estate descends to him before 
 the marriage charged or incumbered, the widow must take her 
 dower cum onere; for his own personal property is not liable to 
 answer for the debts of other persons, and consequtently not in the 
 present instance, to exonerate the dowable estate from incum- 
 brances so made upon.it. ( Vide 1 BrigMs Husb. avd Wife, 500.) 
 Such is the common law rule with respect to incumbrances upon 
 the estate in which the widow has her claim of dower, and the same 
 doctrine is- generally recognized in the United States. Though in 
 England, at the present time, the widow's dower is subject to all 
 incumbrances created by the husband, and to all debts and incum- 
 brances to which the land is liable. (3 c6 4 Wm. 1 V, ch. 105, § 5.) 
 And the same rule has been incorporated into the statutes of 
 several of the states. 
 18 
 
618 LAW OF COVEBTURE. 
 
 CHAPTER XXX. 
 
 DOWEE m EQUTTT JUEISDICTIOIT OF EQTnTT — PEACTIOE HT EQUITT 
 
 FOE THE EEOOVEET OF DOWEE COSTS m PEOOEEDUfGS FOE DOWEE 
 
 THE widow's POWEE OVEE THE LAND ASSIGNED HEE HEE LIABILITT 
 
 FOE WASTE HEE EIGHT TO EMBLEMENTS — HEE LIABILITIES ON 
 
 TAKING POSSESSION OF THE ESTATE. 
 
 § 438. In some respects a court of equity is tlie most complete 
 and appropriate forum afforded the widow for the recovery of her 
 doWer. In a court of equity there are fewer embarrassments from 
 forms of proceeding than at law, and obstacles which improperly 
 tend to delay or defeat the widow of her rights are also more 
 readily removed in equity than at law. It was formerly made a 
 question as to how far courts of equity should entertain general 
 jurisdiction in cases of dower, where no obstacle appeared to the 
 legal remedy of the widow ; but it is now well settled that a court 
 of equity has a concurrent jurisdiction with a court of law upon 
 this subject. The principle upon which this concurrent jurisdic- 
 tion is entertained is said to be intelligible and reasonable ; that is, 
 that the widow labors under so many disadvantages at law from the 
 embarrassment of trust terms and the like, and from an ignorance 
 of the titles, values and quantities of the lands of which her hus- 
 band was seised, that she is entitled and ought to have every 
 assistance that a court of equity can give her, not only in paving the 
 way to establish her right at law, but also by giving complete 
 relief when the right is ascertained. {Curtis v. Curtis, 2 Bro. Ch. 
 B. 634.) And when the widow brings her action in a court of 
 •equity for the assignment of 'her dower, it is not necessary to charge 
 in her bill that there is any impediment to her obtaining an endow- 
 ment at law. If the title to dower is admitted, and nothing is to 
 be done but to assign it, it would be useless to send the matter 
 to a court of law, and the court may proceed at once to the assign- 
 ment of dower. {Mundy v. Mundy, 2 Ves. Jun. JR. 122. S. C. 4 
 Bro. Ch. B. 294.) But if the title to dower is disputed, that must 
 be established by an issue at law, the court in the mean time 
 retaining the bill, and assisting the widow in trying her right, and 
 deriving the full benefit of it, when it is determined in her favor at 
 law, and giving her possession according to her right. {Curtis v. 
 Curtis, supra. Mundy v. Mundy, supra.) A commission usually 
 issues, however, to set out and assign the dower. ( Wild v. Wells, 
 
DOWER iw EQUirr. 619 
 
 1 JDiok. E. 3. LiKas v. Caloraft, 2 ih. 694. Morgan v. Ryder, 1 
 Pes. cfi B^ame^s Ii.20.) But the decree sometimes directs the master 
 to assign the dower. {Goodenough v. Goodenough, 2 J)iok. li. 795. 
 Bwmford v. Bwmford, 5 Harems R. 206.) 
 
 When the marriage is disputed, it has been the practice to send 
 the case to a court of law to be adjudicated. However, witnesses 
 are sometimes examined in the court of equity upon the issue upon 
 the plea ne ungues acoouple. {Poole v. Poole, Yowng's Eg. Ex. 
 R. 331.) 
 
 § 439. Judge Story affirms, that " there are some cases in which 
 the remedy for dower in equity seems indispensable at law ; if the 
 tenant dies after judgment, and before damages are assessed, the 
 widow loses her damages ; and so, if the widow herself dies before 
 the damages are assessed, her personal representatives cannot claim 
 any. But a court of equity will, in such cases, entertain a bill for 
 relief, and decree an account of rents and profits against the respect- 
 ive representatives of the several persons who may have been in 
 possession of the estate since the death of the husband ; provided, 
 at»the time of £ling the bill, the legal right to damages is not gone." 
 (1 Story^s Eg. Jur. § 625, citing Curtis t. Curtis, 2 Rro. Ch. 
 R. 632. Dormer v. Fortescue, 3 Aik. R. 130. Mordcmt v. 
 Therold, 3 Lev. B. 275.) 
 
 And, further, the learned judge says : " Upon principle there 
 would not seem to be any real difficulty in courts of equity in all 
 cases of dower ; for a case can scarcely be supposed in which the 
 widow may not want, either a discovery of the title-deeds, or of 
 dowable lands, or some impediment to her recovery at law 
 removed^ or an account of mense profits before the assignment of 
 dower, or a more full ascertainment of the relative values of the 
 dowable lands; and, for any of these purposes, independent of 
 cases of accident, mistake, or fraud, or other occasional equities, 
 there seems to be a positive necessity for the assistance of a court 
 of equity. And if a court of equity has once a just possession of 
 the cause in point of jurisdiction, there seems no reason why it 
 should stop short of giving full relief, instead of turning the 
 doweress round to her ultimate remedy at law, which is often 
 dilaitory and always expensive. Dower is favored as well in law 
 as in equity. And the mere circumstance that a discovery of any 
 fact may be wanted to enforce the claim, would, under such 
 circumstances, seem to furnish a sufficient reason why the jnrisdic- 
 
620 LAW OF COVERTURE. 
 
 tion for discovery should carry the jurisdiction for relief." (1 Story's 
 JEq. Jur.% 626, citing Borm&r v. Fortescue, 3 Atle. E. 130. Moor 
 Y.BlaOe, Cds. Temp. Talb. 126. M&rleH v. Wren, 1 CrancKs E. 370, 
 376. CwrUs v. CvHis, 2 ^o. Oh. E. 632. Mundy v. Mwndy, 2 Ves. 
 Jwn. E. 122. jS. C. i Bro. Gh. E. 294 Oraham v. Oraham, 1 
 Fes. J?. 262. 2)' J.rey v. ^Zafe, 2 ,ScA. c& Ze/?-. ^. 389, 390. PweZZ 
 V. 2%6 Mbnson Man. Co. 3 Mason's E. 347.) And it is said by the 
 English parliamentary commissioners, that " the necessity for n, dis- 
 covery to ascertain the state of the legal title, before a widow can 
 safely resolve to commence an action against any person as tenant 
 of the freehold, and the convenience of a commission for setting 
 out her dower under the authority of a court of equity, generally 
 make it expedient that a suit in equity should be instituted," (2 
 Eeipori of Common Law, 1830, p. 7.) 
 
 § 440. The case of the doweress has been said to be upon a prin- 
 ciple somewhat, though not entirely, analagous to that of the heir. 
 An indulgence has been allowed to her case upon the great diffi- 
 culty of determining a priori, whether she could recover at law, 
 ignorant of all the circumstances; and the . person against whom 
 she seeks relief, having in his possession all the information neces- 
 sary to enable her to establish her rights, therefore it is considered 
 unconscientious in him to expose her to all that difficulty, to which, 
 if that information was fairly, imparted, as conscience and justice 
 require, she could not possibly he expo'sed. {Pultney v. Warren, 6 
 Yes: R. 73, 89.) This certainly presents a very strong reason why 
 a court of equity should have jurisdiction in these cases of dower ; 
 and, as before stated, it is now well settled, that courts of equity 
 have a general concurrent jurisdiction with courts of law in all 
 matters of dower, and the propriety of maintaining it has been so 
 long and so well vindicated, that it has ceased to be questioned. 
 The widow's dower is favored in the law, and proceedings having 
 in view its enforcement or establishment is encom-aged, rather than 
 defeated ; and this rule makes it peculiarly proper that courts of 
 equity should take cognizance of the widow's claim in such caseg. 
 {Tide Matter of SipperVy,^ Barl. E. 370.) Indeed, the right 
 that a doweress has to her dower is not only a legal right, but it is 
 also a moral right, to be provided for and have a miaintenance and 
 sustenance out of her husband's estate to live upon. She is, there^ 
 fbre, in the care of the law, and a favorite of the law. So much 
 is this the case that the widow will be aided in equity for her dower 
 
DOWEk IN EQUITY. 621 
 
 against a term of years, wHcli attends the inheritance, if it is not 
 the case of a purchaser against whom she claims. And if she 
 has recovered her dower against an heir who is an infant, and there 
 is a term to protect the inheritance, which, by the neglect of his 
 guardian, is not pleaded, the term will not be allowed in equity to 
 be set up against her. Such Judge Story understands to be the 
 doctrine of the authorities. {I.Story's Eq. Jur. § 629. Vide also 
 Dudley v. Dudley, Prec. Ch. 241. Bcmks v. Sutton, 2 P. Wms, 
 P. 703, 704. Badnor v. Yandebv;rdy, 1 Tern. P. 356. D'Arcyy. 
 Blake, 2 Soh. <& Zefr. P. 389, 390. Mole v. Srmth, 1 Jao. P. 496, 
 497. Swannooh v. Lyford, Amhl. P. 6, 7. Hitohins v. Hitchins, 
 2 Freem. P. 242.) 
 
 § 441. "Whether a plea of a purchase for a valuable consideration 
 without notice is a defense when a widow institutes proceedings in 
 equity for her dower, is a question which has' been much discugsed, 
 and the authorities are by no means imiform on the subject. In 
 an early case in the English court of chancery it was decided that 
 a widow who filed her bill for dower against the purchaser of the 
 lands from her husband during the marriage, praying a discovery 
 of them, and an assignment of dower, could not be defeated of 
 either by a plea, that the tenant was a purchaser for a valuable con- 
 sideration without notice. {Williams v. Zambe, 3 Pro. Ch. P. 
 264.) And a similar rule has been acted upon in other cases in 
 the same distinguished court ; and, upon the authority of Williams 
 v. Zambe, it has been held, in general terms, that a purchaser for a 
 valuable consideration, without notice, has no defense in equity 
 against a plaintiff relying upon a legal title. {Rogers v. Seale, 2 
 Freem. P. 84. ColUns v. Aroher, 1 Puss, da Mylne's P. 284. Med- 
 licott V. O'Donell, 1 Ball & Beatty's P. 171.) On the contrary, 
 Mr. Bright affirms that the principle that equity will not interfere 
 against a purchaser for a valuable consideration without notice, is 
 commonly laid down in general terms without reference to the 
 nature of the plaintiff's title ; and he seems to think it now to be 
 well settled that a plea of a purchase for a valuable consideration 
 without notice is a defense to the widow's action in equity. (1 
 BrigkSs Mus. and Wife, 421, 422.) So also Sir Edward Sugden, in 
 his treatise on vendors and purchasers, after citing the authorities, 
 concludes with remarking that the point can hardly be considered 
 as concluded by the weight of authority ; but in the last edition 
 of his work he seems to maintain that the authorities preponderate 
 
622 LAW OF COVERTURE. 
 
 in favor of the sufficiency of the plea against a legal title, and that 
 upon principle such a plea should stand good. (2 Swgden on Yen- 
 dors, 577, 578, Ith, American edition.) And there are numerous 
 authorities which, in principle, sustain this view. The general 
 doctrine that the plea of a purchase for a valuable consideration 
 without notice is good against a legal as well as against an equita- 
 ble claim, is universally conceded, and the authorities cited by 
 Messrs. Bright and Sugden to sustain their position make no excep- 
 tion in case of dower. ( Vide Burlao v. Goohe, 2 Freem. B. 24. 
 Pwrk&r V. Blythmore, 2 Eq. Abr. 79. Jerrard v. Saunders, 2 Ves. 
 Jun. R. 454'. Robinson v. Hayns, Oilh. Eq. B. 184. Worcester v. 
 Barker, 2 Vern. B. 255. Roare v. Pa/rlcer, 1 Cox^s B. 224. Payne 
 V. Gompton, 2 You. & Coll. Eq. B. 457, 461. Bowen v. Evans, 1 
 Jones & Lot. B. 263. Joyce v. BeMoleyns, 2 ih. 374.) 
 
 Mr. Beames, Mr. Belt, and Mr. Roper — all able elementary 
 writers — support the doctrine that the plea of purchase for a good 
 consideration, without notice, is no defense in a case of dower. 
 {Beam. PI. Eg. 234, 245. Williams v. iMmle, 3 Bro. Ch. B. 264. 
 BeWs, note 1. 1 Boper's Husband and Wife, 446, 447.) 
 
 Judge Story, referring to the decision of Williams v. JLarnbe, 
 says : " It has been often found fault with, and, in some cases, the 
 doctrine of it denied. It has, however, been vindicated with great 
 apparent force, upon the following reasoning. It is admitted that 
 dower is a mere legal right, and that a court of equity, in assuming 
 a concurrent jurisdiction with courts of law upon the subject, 
 professedly acts upon the legal right, for dower does not attach 
 upon an equitable estate. In so doing the court should proceed in 
 analogy to the law where such a plea of a purchase for a valuable 
 consideration, without notice, would not be looked at ; and, there- 
 fore, as an equitable plea, it should also be inadmissible." (1 SUyry's 
 Eq. Jur. § 630.) The learned judge refers to the fact that other 
 minds have arrived at a different conclusion, and says : " They put 
 themselves upon the general principle of conscience and equity, 
 upon which such a plea must always stand ; that such a purchaser 
 has an equal right to protection and support as any other claimant ; 
 and that he has a right to say that, having bona fide and honestly 
 paid his money, no person has a right to require him to discover 
 any facts which shall show any infirmity in his title. The general 
 correctness of the argument cannot be doubted ; and the only 
 recognized exception seems to be that of dower, if that can be 
 
DOWER IN EQUITT. 623 
 
 deemed a fixed exception." {11. § 631.) The judge finally con- 
 cludes that in a case of such a conflict of learned opinions, a 
 commentator's duty is best performed by leaving the authorities 
 for the reader's own judgment, ^lUd therefore he gives no decided 
 opinion as to what ought to be the rule, or to which side of the 
 question the authorities preponderate. {Ih. note 2.). The question 
 will probably depend so.mewhat upon the provisions of the statute 
 with respect to what the widow shall be endowed. "Where the 
 law is, as in New York, that she shall be endowed of the third 
 part of all the lands whereof her husband was seised of an 
 inheritance at any time during the marriage, it is not probable that 
 her dower can be defeated by the plea that the tenant is a pui-- 
 chaser for a valuable consideration without notice. 
 
 "When the widow applies for equitable relief, as for the removal 
 of terms out of the way, it seems to be conceded that the plea of 
 a purchase for a valuable consideration without notice cannot ^be 
 resisted. ( Vide D'Arcy v. Blake, 2 Soh. ds Zefr. «. 390.) 
 
 § 442. As a general rule, dower is recovered and admeasured in 
 the United States in a court of law. A court of equity is seldom 
 resorted to for that purpose. There are cases, however, where it 
 is very convenient, and almost indispensable to invoke the aid of a 
 court possessing equitable jurisdiction. "Whenever the widow's 
 title is admitted, but impediments are thrown in the way of her 
 proceeding at law, a court of equity is the proper forum in which 
 to institute her proceedings. (JSwaine v. Perme, 6 Johnson^s Ch. 
 B. 482.) 
 
 Generally, a widow is entitled to dower in the equity of redemp- 
 tion of an estate mortgaged by her husband before coverture, but 
 she must resort to a court of equity to recover it. In such a case 
 her remedy is confined to a court of equity, and her rights can be 
 eijforced only in that forum. Her clainis cannot be enforced against 
 the mortgagee, or those claiming under him. {Vcm Dvke v. 
 Thayre, 19 Wend. R. 162. Cooper v. Whilney, 3 EiWs R. 95. 
 Smith V. Gardner, ^'^ Barl. R. 356.) The same rule applies when 
 the mortgage is executed by the husband and wife during coverture. 
 In such a case, the widow must come into a court of equity to 
 recover her dower, and may redeem the land from the mortgage 
 so far as her dower interest is concerned, by the payment of her 
 proportion of the mortgage debt. She would have this right even 
 though the mortgage had been foreclosed provided the wife was 
 
624 ' LAW OF COVERTUBE. 
 
 not a party to tlie foreclosure suit. Her inchoate right of dower, 
 as has been before observed, is not divested by a sale had on such 
 a decree of foreclosure. ( Vide Denton v, Nanny, 8 Barb. R. 618. 
 Wheeler v. Morris, 2 Bosw. E. 624.) When the premises in which 
 the widow claims dower are in the possession of a tenant whose 
 term has not expired, and the heir refuses to assign her dower, the 
 widow's bill for dower will be sustained. This was so held by 
 the late court of chancery of the State of New York, upon the 
 recognized theory, that a court of equity has concurrent jurisdic- 
 tion with a court of law in suits for the recovery or assignment of 
 dower. In such case, if the right of the widow is admitted by the 
 answer, the court will proceed at once to assign the dower ; and 
 to take an account of the arrears, if it is a case in which she can 
 recover damages. But if her right is disputed, the court will 
 retain the bill, and direct a suit at law to ascertain the title. This 
 is the rule as settled in England before referred to, and it is 
 distinctly recognized by the American courts. {Badgley v. Bruce, 
 4 Fa/ige's Gh. B. 98.) 
 
 So also a similar jurisdiction is exercised in others of the Ameri- 
 can Statefe, in their equity courts. Thus, in one case in the State 
 of Yirginia, the widow had filed her bill in equity against her 
 infant children for the assignment of her dower, and had a decree 
 thereon. And the judge who delivered the opinion in the com't 
 of appeals said, that the widow might have filed her bill at the 
 first court after her husband's death, thereby recognizing the doc- 
 trine that the jurisdiction of the equity courts in matters of dower 
 is well settled in that state. {Or ay son v. Moncore, 1 LeigKs R. 
 449. Tod V. Baylor, 4 *5. 498.) The court of appeals in the 
 State of Maryland has also decided that the court of chancery in 
 that state has jurisdiction to decree dower to the widow, and rents 
 and profits from the death of the husband, and it was said in the 
 same case that when the title is controverted, it must be made out 
 at law. But the judge who delivered the opinion of the court said, 
 that it did not follow that the complainant's bill is to be dismissed 
 because the right of dower is denied by the defendants ; but that 
 the chancellor should retain the bill a reasonable time, until the 
 right at law is established. ( Wells v. Beall, 2 QUI & Johns. R. 
 464.) And in the same state, when an action at law has been 
 brought for dower against the alienee of the demandant's husband, 
 and a judgment was given for the demandant upon the plea 
 
DOWEE IN EQUITY. 625 
 
 of the non-seisure of the husband during coverture ; after which 
 .the widow filed her bill in equity against the same party to recover 
 mesne profits, the court held that the proceedings in equity were 
 properly instituted ; that the widow could only recover damages 
 from the alienee of her husband for the detention of her dower, in 
 a court of equity, and that a court of law could not award them. 
 {Sellman v. Bowen, 8 Gill c& Johns. E. 50. And vide Steigcr v. ^ 
 milen, 5 ih. 121.) 
 
 In the State of Kentucky, also, it appears the conrts of equity 
 have an acknowledged jurisdiction in cases of dower. And the 
 reports of the court of appeals in this state contain many cases in 
 which bills have been filed to obtain assignments of dower, and to 
 recover the arrears of dower from the death of the husband. 
 {Kendall v. Honey, 5 Mon. H. 283. Jortes v, Todd, 2 J. J. 
 Marsh. li. 359. Stevens v. Smith, 4 ib. 64.) 
 
 And in the State of New Jersey, it has been expressly held that 
 courts of law and equity hold a concurrent jurisdiction in relation 
 to dower and partition ; and that in many cases there is an indis- 
 pensable necessity for the exercise of this jurisdiction by a court 
 of equity. That if the legal title of the complainant be denied, it 
 is in the power of the court to send that question to be tried at 
 law, and that such is the universal practice ; thus recognizing the 
 rule as laid down in the State of New York to the fullest extent. 
 {Hartshome v. Hartshorne, 1 Greenes Ch. B. 349.) 
 
 But in the State of JSTorth Carolina, it has been held that dower 
 having been assigned to the widow iipon a partition at law, equity 
 will not entertain a bill for the detention of the dower, unless there 
 be some equitable circumstance, such as loss of title deeds, or 
 detention of such deeds, or a discovery is iieeessary. {Whitehead 
 V. Clynch,! Murphy'^ E. 128.) And in the State of New York, 
 where a bill was filed to restrain a widow' from proceeding at law 
 to recover her dower, the court determined the case in favor of 
 the widow, and decreed that she was entitled to her dower, but 
 declined further jurisdiction, and dismissed the bill; the chan- 
 cellor remarking that he did not understand the usual practice in 
 such cases to be to proceed to the assignment of the dower,, but 
 that dismissing the bill upon the merits, after decreeing that the 
 widow was entitled to her dower, settled the rights of the parties 
 conclusively as to all the questions which the court was called 
 upon to decide, and that the widow might then proceed and enforce 
 ?9 
 
626 LAW OF COVERTURE. 
 
 her rights in the suit at law. {Sanf&rd v. McLean, 3 Pcdge^s (JIi. 
 R. 117.) 
 
 It may be aflSrmed, however, as a general nile, in the United 
 StateSj. as well as in England, that courts of equity will entertain 
 a concurrent jurisdiction with courts of law in the assignment of 
 dower. ' 
 
 § 443. As a general rule at law mesne profits, under the term 
 damages, are lost by the death of either the plaintiff or defendant 
 before they are assessed and ascertained. But this is not the rule 
 in equity. A court of equity is more liberal to the widow, from 
 the consideration that the profits of a third part of the husband's 
 real estates are her only subsistence from his death. It is, there- 
 fore, the course of a court of equity to assign to her dower, and 
 universally to give her an account of mense profits from the death 
 of her husband, and not to permit her title to them to be defeated 
 by the death of the tenant ^pendente lite, upon the principle that 
 it would be unjust if the heir's denial of her right to dower, and 
 the accident of his death before the establishment of it, should be 
 allowed to place her in a worse situation than if he had thrown no • 
 impediment in her way, and fairly and candidly admitted her 
 claim. {Curtis v. Curtis, 2 £ro. Ch. R. 620. Johnson v. Thomas, 
 2 Paige^s Ch. R. 377.) And by reason of this, it has been 
 held that the length of time which may have elapsed since the 
 husband's death, although it may have exceeded six years prior to 
 the bill being filed, will not narrow the rule nor confine the 
 account to the six years preceding the exhibition of such bill, in 
 analogy to the statute of limitations. {Oliver v. Richardson, 9 Ves. 
 R. 222.) But now, by the statutes of England, no arrears of 
 dower, nor any damages on account of arrears, are to be recovered 
 or obtained by any action or suit for any longer period than six 
 yeai's before the commencement of the action or suit. (3 and 4 
 William IV, ch. 27, § 41. Bamford v. Bamford, 6 Hare's R. 
 203.) A similar rule has been incorporated into the statutes of 
 several of the American States ; and, after all, the right to arrears 
 in equity is about the same as at law, except, perhaps, in one case 
 where the tenant may die after the commencement of the action 
 and before the dower is assigned, when the ordinary principle of 
 equity, that the decree is to be made according to the rights of the 
 parties as they exist at the institution of the suit, will prevail and 
 save the arrears. 
 
DOWER IN EQUITT. 62T 
 
 In consideration of the widow requiring the profit of her dower 
 for immediate support, if her claim form an ingredient only in the 
 suit, and several matters are referred to a master to inquire into 
 and make a general report, the court will not delay the payment 
 of arrears of the widow's dower until the general report is made, 
 but it will direct the master to make an immediate separate report 
 of what is due to her for arrears, in order that she may receive 
 them for her maintenance. {Eccleston v. BerTdey, Bidgw. Ca. 
 Temp. Hardw. 253.) 
 
 It is the general rule of the court in England not to allow 
 interest upon arrears of dower, and the rule has been considered 
 to be so absolute as to render it doubtful whether it will be relaxed 
 in the most distressing cases. {Ferrers v. Ferrers, Foresfs R. 2. 
 Batten v. Farnly, 2 P. Wms. M. 163. BoMnson v. Gumming, 2 
 Ath. B. 411. Newmcm v. Aulmg, 3 ih. 6Y9.) But no case can 
 probably be found holding that a. widow, under no circumstances, 
 shall receive interest upon the money arising' from her dower, 
 improperly detained from her by the person who ought to have 
 assigned it ; and there are cases going to show that circumstances 
 might exist to warrant a departure from the general rule upon the 
 subject. .{Anderson v. Dwyer, 1 8ch. <& Lefr. B. 303. Bv/rton v. 
 Todd, 1 Swan. B. 255.) And in the State of New York, it has 
 been held that the widow is entitled to interest or mense profits up 
 to the time her dower is assigned to her. {Gordon v. Stevens, 2 
 HilVs B. 429.) 
 
 § 444. "With respect to costs in proceedings for dower in equity, 
 they are in the discretion of the court, and that discretion is regu- 
 lated by the conduct of the parties. Thus, when the widow's suit 
 is for the single purpose of obtaining an assignment of dower, 
 costs are not allowed to the doweress if there has been no vexation 
 or undue hinderance to her claim, or other misconduct on the 
 part of the defendant. {Lucas v. Oalffraft, 1 Bro. Ch. B. 134, 
 Curtis V. Curtis, 2 ih. 632. Hazen v. Thurher, 4 Johns. Ch. B. 
 604. Sale v. Jamies, 6 iS. 258. Mundy v. Mundnj, 2 Yes, Jim. 
 B. 128.) 
 
 If, however, the defendant's opposition be vexatious, or if he 
 fraudulently withhold her dower, he will be saddled with the costs 
 of the suit. {Morgan v. Byder, 1 Yes. db Beames^ B. 20, Outhnjoaite 
 v. Outhwaite, Beames on Costs, 36.) Or, if the [defendant refused 
 before suit, upon reasonable request, to assign dower or pay an 
 
628 
 
 LAW OF COVEHTUEE, 
 
 equivalent, the widow will have costs ; but if she iiles her bill 
 without having made such application, and claims more than she 
 is entitled to from him, .costs will be given to neither party. 
 {Russell Y. Austin, 1 PmgisCh. R. 192.) 
 
 If the defendant sets up any ground of defense which fails, he 
 may be liable to the costs thereby occasioned. {Bamford v. ^am- 
 fordyi Hare's R.Wt:) 
 
 % 445. In relation to the power which the widow has over the 
 land assigned her for her dower, and her rights in respect of it, it 
 may be suggested that, as she has only a fi-eehold interest for life 
 in the third part of her husband's freehold estates, she cannot 
 legally dispose of it for a longer period than during her natural 
 life. This, of course, is obvious from the fact that her interest is 
 only, that of a tenant for life. 
 
 The widow may grant leases of or otherwise incumber her estate 
 in dower to the extent of her life interest, so that if she demise it 
 for. years, reserving a rent, it will be good, and if she die, and rents 
 be in arrear, her executor or administraitor will be entitled to them. 
 
 The doweress must not commit waste by felling timber trees, 
 pulling down buildings, opening mines or pits, changing the course 
 of husbandry, destroying heirlooms or other things which are not 
 included in the temporary profits of the land assigned to ker. In 
 this respect the doweress stands upon the same footing with other 
 tenants for life, unless an exception is made in her favor by express 
 statute. 
 
 The doweress, like other tenants for life, is entitled, in the 
 ancient but well defined language of the law, to reasonable and 
 customary estovers, such &% house-lote, fire-iote, fence-hote, and 
 plow-iote,' but she is not permitted to cut and take off any of 
 the timber for sale, or for any othex purpose than to provide neces- 
 sary fuel, repair and rebuild the fences, and keep up the buildings 
 upon the land ; and if she do any act of a permanent injury to the 
 inheritance, except to take her reasonable estovers, she is guilty of 
 waste, and may be proceeded against for the damages, or a com-t 
 of equity will grarit an injunction to restrain her from further 
 damage. 
 
 In those states, however, where a widow is dowable of wild and 
 forest lands, she may clear up and take off the timber from a 
 reasonable portion of the premises assigned to her, in order that 
 she may enjoy the benefit of her dower right. {Hastings v. Orun- 
 
W4STE OF DOWER LANDS. 629 
 
 detm, 3 Yeates' JR. 261. Findlmj v. Smith, 6 Munf. B, 134, 148.) 
 And in the State of North Carolina it was held that the widow 
 might convert timber into staves and shingles, where guch had been 
 the ordinary and was the only beneficial use to which slie; could 
 make of the land assigned to her. {Ballentine v. Fayner, 2 Hayw. 
 B. 110.) And again, in Tennessee, it was decided tha,t she might 
 cut down the timber for any necessary uses^ provided she left 
 enough standing upon the premises for permanent use, and the 
 estate was not essentially injured by .taking off the timber cut. 
 {Owen V. Hyde, 6 Yerg. R. 334.) And generally, when a prudent 
 owner of the land would clear off the timber, and by doing so the 
 value of the entire premises would be enhanced, the widow will be 
 I'ustified in taking such timber off; and in doing so will npt be 
 liable for waste, {Gimens v. MoGalmont, 4 Watts' li. 463. iQJuise 
 V. Hazelton, 1 N. R. R. 171. Keeler v. Eastmcm, 11 Vt. B. 293.) 
 She must in no event, however, cut and take off all of the timber 
 standing upon the land, for that would be considered a permanent 
 injury to the premises, and waste. (Jackson v. Brownson, 7 Johns. 
 B. 2'2il. Hicken v. Irvine,^ Dana's B. 123. ■. Pa/rhins;Y. Coxe, 2 
 Hayw. B. 339. Kfider y. Eastman, supra. Padelfqrd. v. Padel- 
 ford, 7 Pick. B. 152. 1 Greenl, Cruise on Beal Prop. 116, note 
 2.) It haS; been held in Massiachusetts, that when oak . and Other 
 tiniber is so abundant that such trees are customarily used for fuel, 
 the tenant may cut them for that purpose. (Paddfotd^.Padel- 
 ford, supra.) But in .the State of I^ew York, it has been;decided 
 that a tenant for life has no -right, to dig, up the soil and cut down 
 valuable timber, and use the same for making brick for sale off 
 the premises; and it was even doubted whether the clearing the 
 land of its timber and reducing it to cultivation, when the same 
 would be a benefit rather than an injury to the general estate, 
 would not be an act of waste,, and it was added that injury in such 
 a case was.not the test of. wassfo, but disherison of ihim in remainder 
 or reversion. {Imingston v, Beynold.s,^Q Wend. B. 115, 122.) And 
 a similar quere was expressed in one.case in the State of Tennessee. 
 {Oioen V. Hyde, supra.)- The do:yFeress must not pu^l down or 
 destroy the buildings upon the land assigned her, n,or alter them 
 injuriously, nor suffer thena to be uncovered, whereby the timbers 
 become rotten. ( Vide Hov^lOsffy. Wiggins, 1 Johns.. Ch. B. 437. 
 Befinett x. Sadler,, 14:Ves. iZ. 526. i JDoe y. Jones, 4 Bam. cSi, Ad. 
 i2. 126. Hasty V.Wheeler, 3 Fairf.B. 4:84:, 4:39.) 
 
630 LAyf OF COVERTUKE. 
 
 With respect to mines or ore beds in the lands assigned to the 
 widow for her dower, the rule seems to be that the opening and 
 working such mines, including ore beds, for the first time by the 
 widow, will be regarded as an act of waste ; but if the mines were 
 opened and worked dui-ing the life-time of the doweress' husband, 
 she is entitled to work them, although she cannot legally profit by 
 any extension of that opening. {Coates v. Cheever, 1 Cow. JR. 460, 
 474. Stoughton v. Leig\, 1 T<mnt. R. 402.) What is not waste 
 in a tenant under a lease, will not be so considered in tenants in 
 dower, as there is an analogy or agreement in principle between the 
 two tenancies. 
 
 § 446. In England, where their system of agriculture, from the 
 peculiar circumstances and necessity of the case, is more fixed and 
 regular than in this country, the conversion not only of woodland, 
 but even of meadow and pasturage, into arable, and the reverse, as 
 well as that of meadow and pasturage into woodland, and the 
 reverse, would be deemed waste. But these strict rules of the old 
 world have never been adopted in all their rigor among the broad 
 and fertile acres of our own young and free country, and in many 
 of the states, either by statute or express judicial decisions, the 
 doweress may do many acts which in England would be waste. 
 Thus, in Massachusetts, when the husband leaves no issue, and the 
 widow elects to takfe half the real estate, consisting of wild or 
 woodland, she may clear and improve it. In Vermont, Ifew York 
 and Ohio, if the land assigned is wholly wild and uncultivated, 
 the tenant may clear a part of it for cultivation, leaving, however, 
 enough for the permanent use of the farm and consistent with good 
 husbandry, which is a point of fact for the jury. So, in JSTorth 
 Carolina, as before stated, the doweress is permitted to cut timber 
 to make into shingles and staves, if this is the coromon. and only 
 beneficial use of the land. So, in ITew Hampshire, the consump- 
 tion of necessary fuel at the residence of the widow, cut from 
 the dower land, she not residing thereon, is not waste. So, in 
 Maine, it is not waste to cut wood for necessary fuel and repairs. 
 So, in Pennsylvania, Yirginia and Tennessee, tenants in dower 
 have been allowed to clear wild land, not exceeding (in the former 
 state) a just proportion of the whole tract. This is substantially 
 the statement made by Mr. Hilliard in his treatise on the American 
 law of real property, and some of it is a repetition of mattera 
 stated in the last preceding section ; but the rule in the several 
 
EMBLEMENTS ON DOWER LANDS. 631 
 
 states upon the subject is so intelligently condensed by Mr. Hilliard 
 that it was thought best to insert his statement in this place. ( Vide 
 1 Hill on Beal Prop. 263.) 
 
 In the State of New York it is expressly provided by statute 
 t^iat if any tenant in dower, among others, or the assigns of any 
 such tenant, shall commit waste during her term, of the houses, 
 gardens, orchards, lands or woods, or of any other thing belonging 
 to the tenements so held, without a special, and lawful license in 
 writing so to do, she or they shall be subject to an action of waste ; 
 and if the plaintiff prevail in the action, the judgment shall be that 
 the plaintiff recover the place wasted and treble the damages found 
 by the jury. (2 R. S. part 3, ch. 5, tit. 5, §§ 1, 10. 2 Stat, at Large, 
 344.) And similar provisions are contained in the statutes of other 
 states. The rule of the common law is, that the committing of 
 waste by the widow is a forfeiture of the estate. {Conner v. Shep- 
 /ierd,15Mass.Ii.l64:. Allen \. McCoy, S Ohio R 4:18.) Although 
 this rule is no part of the common law of some of the states. 
 (Allen V. McCoy, supra.) 
 
 § 44T. With respect to the widow's right to emblements, her 
 right to them is indisputable in England, for by the statute of 
 Merton the tenant in dower is expressly empowered to dispose 
 of the com growing upon her estate at the period of her death. 
 (20 Hen. III. ch. 2.) It is said that this act was passed to remove 
 the doubt which previously existed upon the subject. . It was 
 imquestionable that the widow was entitled to the benefit of the 
 corn growing upon the third part of the lands assigned to her, if 
 there happened to be any growing thereon at that time, and it was 
 thought the advantages received by her at the commencement of 
 her estate, should be a satisfaction of those of the same kind which 
 she would otherwise have been entitled to when her estate expired. 
 This peculiarity attending the widow's estate distinguished it from 
 that of other tenants for life who are entitled to emblements ; and 
 to settle the law in this matter was the object of this provision of 
 the statute of Merton, which places the widow in the same situa- 
 tion in regard to emblements as a tenant for life. Her power 
 of disposition under the statute was not merely extended to com 
 growing at the time of her death, but to roots planted, and to other 
 animal and artificial profits, such as hemp and flax, and hops, 
 although gi'owing upon ancient roots, and to other things which 
 are yearly produced by the industry of man. If the widow omit to 
 
632 LAW OF COVERTUBE. 
 
 dispose of such emblements, they will belong to her executor or . 
 administrator, who may retain possession of the lands until they 
 can be reasonably carried away. 
 
 From the fact that the tenant in dower is placed upon the same 
 footing in regard to emblements, as a tenant for life, it of course 
 follows that the same principles will regulate her right to them as 
 are applicable to other tenants for life. The fudamental reason for 
 admitting such right is to encourage husbandry, by allowing the 
 tenants a full compensation for their labor and expense in tilling, 
 manuring, and sowing the lands. 
 
 If the widow, after assignment of dower, sow the lands and 
 marries, and her second husband, after appointing executors, dies 
 before the crop is severed, his surviving widow will be entitled to 
 it. But the executor, and not the widow, would have been entitled, 
 to the crop if it had been sown by the husband, because he was at 
 the expense of sowing it. ( Vide 1 Brighffs Husband and Wife, 
 393,394.) 
 
 § 448. The English rule with respect to the widow's right to 
 emblements is generally recognized in the United States. With 
 some exceptions, it is held that if a husband sow the lands, and die 
 before a severance, and the widow be endowed of that land, she, 
 and not the executor, shall have the emblements, and this is put 
 expressly upon the ancient rule of the common law, that a widow, 
 who is endowed, shall have land cultivated, or not cultivated, w-ith 
 all the crops and produce growing thereon ; and that the doweress 
 is entitled to the emblements, because dower is considered as an 
 excresence, or continuance of the estate of the husband. (2 JSrao- 
 ton, 96. Fisher v. Fisher, Vinerh, Ahr, PL 82.) It has, however, 
 been held by the court of appeals of the State of New York, that 
 the grapes and fruits growing upon lands belonging to an intes- 
 tate at the time of his decease, are not assets belonging to the 
 administrator, but descend with the land to the heir ; and that a 
 widow, in receiving the fruits and grapes growing on her hus- 
 band's lands at the time of his death, is liable to the heir for their 
 full valiiBf and cannot retain one-third on account of her right of 
 dower in the lands. But the judge who delivered the opinion 
 of the court, stated that if the land on which the grapes and fruits 
 in question were growing at the time of the husband's death, had 
 been assigned to the, widow for her dower, she would thereupon 
 hpive become entitled to the grapes and fi-uits growing on the 
 
CBAROES ON DOWER JUANDS. 633 
 
 lands. {Earn v, Fisher, 6 N. Y. R. 597, 598.) And in the State 
 of Iowa, it has been expressly decided that wheat growing upon land 
 set off to the widow as her dower, belongs to her and not to the 
 heirs of her husband. {Ralston v. Ralston, 3 Iowa R. 533.) By the 
 common law, the tenant in dower could not devise the emblements 
 growing on the land ; neither wonld the emblements, in case there 
 was no devise, go to the executor of the wife, but they belonged to 
 the reversioner. But this rule of the common law, as we haye seen, 
 was changed in England by the statute of Merton in favor of 
 widows, and they were placed on the same footing as other tenants 
 for life. In some of the American States, the common law rule 
 prevails, while in others the rule in England has been adopted. 
 Thus, in the State of New York, it is provided by, statute that a 
 widow may bequeath the crop in the ground of the land holden by 
 her in dower. (1 R. S. part 2,' ch. 1, tit. 3, § 25. 1 Stat, at -Large, 
 695.) And similar provisions are found in the statutes of some of 
 the other states. 
 
 § 449. There are certain liabilities which the widow assumes 
 upon taking possession of the land, set off to her; for her dower. 
 Thus, in the State of New York, the statute provides that she 
 takes the land subject to the payment of all taxes and charges 
 accruing thereon subsequent to her taking possession. (2 R. S.., 
 part 3, ch. 8, tit, 1, § 18.) And most likely the widow is liable, in 
 all of the states, for the taxes laid upon the estate after she takes 
 possession ; although she is not liable, usually, for the taxes on 
 the part not assigned to her. Thus, under the New York statute, 
 it has been held that, -when certain apartments in a house are 
 assigned to the widow, and the residue are in the possession of the 
 heir or his grantor, a tax, or an assessment or water-rate upon 
 the house and lot, is to be. paid by contribution ; and that if either 
 pay the whole, the equitable share of the other may be recovered 
 back. {Graham y. Dunigan, 2 Bosw. R., 616.) 
 
 Where the heir has redeemed the land by paying off a mortgage, 
 and the widow files her bill against him for dower, she must con- 
 tribute, by paying to the heir during her life, an annuity of one- 
 third of the interest on the atnount paid by him, to be computed 
 from the time of such payment, or the yalue of such annuity, 
 according to the circumstances. {Swame.v. JPerine^ 5 Johns, Oh. 
 R. 482.) So also, the widow must bear the interest, at seven 
 per cent, of one-third of assessments on the land in which she 
 80 
 
634 ZAW OF COVERTURE. 
 
 is entitled to dower, to commence from the time the assessments 
 became a charge, provided this was subsequent to the death of her 
 husband ; and if not, then from his death. ( Williams v. Oox, 3 
 EdMard''s Chancery R. 178.) , And it has been held that one 
 who is the owner in fee and in possession of real estate, sub- 
 ject to the right of dower of a widow therein, may maintain 
 an action against the widow for an adjustment and apportion- 
 ment of the taxes and assessments which are a lien upon the 
 premises, and for a decree directing the widow to pay her propor- 
 tion of such taxes and assessments, and that such action may be 
 maintained in equity, under the old system of practice, or under 
 the act of the New York legislature, passed in 1855, providing for 
 the due apportionment of taxes and assessments, and for the sale 
 of real estate to pay the same. (lAnd&n v. Graham, 34 Barb. 
 R. 316.) 
 
 § 450. The duties or services to which the widow is liable in 
 respect of her dower, are founded upon her title to the estate. Her 
 interest, as has been before asserted, is a continuation of her 
 husband's seisin, and consequently she is liable, as standing in his ' 
 place, to one-third of all the duties and services to which the estate 
 was subject in his possession, and for which one-third she is answer- 
 able to the person entitled to the reversion of the property. 
 {AscougKs case, 9 Cokeys R. 135. 9 Viner's Abridgment, 268, pi. 
 6,6,7,8.) 
 
 Upon the principle applicable to these cases, if the estate be 
 subject to a mortgage for a term of years granted before the hus- 
 band became entitled to it, his widow will be obliged to keep 
 down one-third of the interest. ( Vide Jones v. Griffith, 2 Coll. 
 N. C. 207.) 
 
 The liability of the widow to contribution for part of the duties 
 reserved out of the dowable estate, is founded on justice ; on the 
 principle that the owner of two-thirds of the estate should not be 
 obliged to pay over the whole of such reservation, but fhat the 
 proprietor of the other third should contribute jpro rata. 
 
 It is also equal justice, that if the heir or his grantor become dis- 
 charged of the render or duty, it should operate in favor of the 
 widow. Accordingly, if the husband's estate, upon its creation, 
 were siibject to a rent, and the reversion or dower of the estate, 
 or if the person to whom it is payable release the whole or part 
 
MARITAL SIGHTS ITT NEW YORK. 635 
 
 of it to the heir, the widow will also hold her dower discharged 
 from it, a third of which she was previously liable to pay to 
 the heir. {CoMs IMUeton, 241. 1 Brighffs Musbwnd and Wife, 
 395, 396.)* 
 
 CHAPTEK XXXI. 
 
 the statutoet pecttliaemes of the seteeal states wtth eespect 
 
 to husband and wdte, and the eights oe maeeied women 
 
 the laws of new toek — ^the act foe the peotectipn of the 
 peopeett of maeeied women eights and liabilities of hus- 
 band and wife — peesumptions in favoe of the wife — ^the 
 husband's tenancy bt the OUETESY. 
 
 § 451. The law with respect to husband and wife, and especially 
 the law which defines the position and the rights of the feme- 
 covert, has undergone a very great change in this country within 
 the last few years. Some of the peculiarities of these local 
 changes will now be referred to more fully than in the previous 
 discussion; and it will be convenient to advert to the states in 
 their ordei", beginning with the State of New York. 
 
 The first radical change which was made in the old rules respect- 
 ing the property and rights of married women, in itfew York, was 
 the passage of the act of 1848. This act has been amended from 
 time to time by subsequent legislatures until the law has become 
 tolerably well settled. 
 
 Previous to the year 1848 there was a strong sentiment that the 
 wife was the victim of an oppressive legal system, from which she 
 ought to be relieved. This was a prominent subject of debate in 
 the constitutional convention which sat in 1846 ; and the substance 
 of the subsequent act of 1848 was at one time incorporated into 
 the project of the new constitution, but it was finally rejected by a 
 
 * It is not consistent with the design and plan of this treatise to pursne the discassion of tlio 
 Bnhject of dower farther. Enough has probably been said to give the stadeut a bird's-eye view 
 of the entire subject, and to enable him to comprehend and master most cases which are met 
 with in ordinary practice. Should the reader, however, desire to possess himself of the very 
 great variety of learning to be found upon the subject, both ancient and modern, he is referred to 
 Park on Dower, or to the elaborate work of Mr, Scribncr, now just published, or some of the 
 other standard treatises in which the subject is specially and ezclusively treated. 
 
636 ZAW OF COVERTURH. 
 
 close vote. {Debates ly Oroswelland Sutton, pp. 55, 116, 794, Y95, 
 811-813.) The advocates foi* a reform as to the legal condition of 
 Carried women then addressed themselves to the legislature, and 
 the result, in the firsfinstance, was the act of 1848, referred to. 
 
 As the law now stands, any married female may take by inherit' 
 ance or by gift, grant, devise or bequest from any person other 
 than her husband, and hold to her sole and separate xise, and 
 convey and devise, real and personal property, and any interest or 
 estate therein, and the rents, issues and profits thereof, in the same 
 manner and, with the like effect as if she were unmarried, and the 
 same is not subject to the disposal of her husband, nor liable for 
 his debts. {Laws of 1848, cK. 200, § 3, as amended ly the Laws of 
 1849, ch. 375. 4 Stat, at Large, 513, 514.) And by another act, 
 the property, both real and personal, which any married woman 
 owns as her sole and separate property, and that which comes to 
 her by descent, devise, bequest, gift or grant, or which she acquires 
 by her trade, business, labor, or services, carried on or performed 
 on her sole or separate account ; or which a woman married in this 
 state owns at the time of her marriage, and the rents, issues and 
 proceeds of all such property will, notwithstanding her marriage, 
 be and remain her sole and separate property, and may be used, 
 collected and invested by her in her owji name, and is not subject 
 to the interference or control of her husband, or liable for his 
 debts, except such debts as may have been contracted for the 
 support of herself or her children by her as his agent. {Laws of 
 1860, ch. 90, § 1. 4 Stat, at Large, 515, 516.) 
 
 §452. By the statutes of the State of New York, a married 
 woman ma,j also bargain, sell, assign and transfer- her peraonal 
 property, and carry on any trade or business, and perform any labor 
 or services on her sole a;nd separate account, and the earnings of 
 any married woman from her trade, business, labor or services, are 
 declared to be her sole and separate property, and may be used or 
 invested by her in her own name. And any woman possessed of 
 real estate as her separate property, may bargain, sell and convey 
 such property, and enter into any contract in reference to the 
 same, with the like effect in all respects as if she were unmarried, 
 and she may in like manner enter into any such covenant or cove- 
 nants for title as are usual in conveyances of real estate, which 
 covenants are declared obligatory to bind her. separate property, 
 in case the sa,rae or any of them be broken. {Laws of 1860, ch, 
 
MARITAL BIQHTS IN NEW XORK. 637 
 
 90, §§ % 3, as amended hf Laws of 1862, cK 1Y2. 4 Stat, at 
 Large, 516.) And it is further provided that no bargain or con- 
 tract made by any married woman in respect to her sole and 
 separate property, or any property which may come to her by 
 descent, devise, bequest, purchase, or the gift or grant of any per- 
 son, except lier husband ; and no bargain or contract entered into 
 by any married woman in or about the carrying on of any trade or 
 business, under any statute of the state, shall be binding upon her 
 husband, or render him or his'property in any way liable therefor. 
 {Laws of 1860, ch. 90, § 8, as amended by Laws of 1862, ch. 172, 
 4 Siat. at Large, 516, 517.) 
 
 § 453. It has been judicially declared that the statutes of 1848 
 and 1849, referred to, gave no power to the wife to dispose by will 
 of property acquired by her before the passage of the acts, or of 
 the interest accruing after the acts, upon nioney previously given 
 to her, or of the proceeds of her own labor which ■ her husband 
 permitted her to receive, manage and invest in her owii name, 
 and as if it were her own property. It was admitted, however, 
 that the language of the acts was broad enough to embrace all 
 property owned by the wife at the time of the marriage, or 
 acquired by her by gift, devise or otherwise dm'ing coverture and 
 before the passage of the act, excluding any title or right which 
 the husband had acquired in it by pre-existing laws, saving only the 
 rights of creditors. In short, that the effect of the statute was to take 
 away from the husband all right to the personal estate and choses in 
 action of the wife acquired by virtue of the marital relation ; but it 
 was held that it was not competent for the legislature to enact a 
 law thus affecting existing rights of property, and that the statute, 
 so far as it related to such existing rights of property, was uncon- 
 stitutional and void. (Byder v. Hulse, 24 ^. Y. B. 372, 375.) 
 Indeed, the same doctrine had been held by the court of appeals 
 eight years before, when it was decided that the husband had a 
 vested interest in a legacy which was bequeathed to his wife prior to 
 the act of 1848, although the legacy was not reduced to possession 
 when that act took effect, and therefore the legislature had not 
 power to deprive the husband of his rights to such a legacy, and 
 make it the sole and separate property of the wife ; and that so far 
 as the act purports to do so, it violates the provision of the con- 
 stitution of the state, declaring that no person shall be deprived of 
 " property without due process of law." ( Westervelt v. Gregg^ 12 
 
638 ZAW OF COVERTURE. 
 
 JV. Y. R. 202.) Similar decisions have also been made by the 
 supreme court of the. state, and the doctrine settled by them is 
 important, not only as determining the rights of parties under the 
 act, but also as an index by -which to decide with respect to other 
 acts of the legislature. But it seems that the statute, so far as it 
 provides that all future property descending to the wife shall be 
 transmitted to her, to her sole and separate use, and that she shall 
 hold the rents, issues and profits thereof in the same manner, and 
 with the like effect as if she were unmarried, was in effect a modi- 
 fication of the laws of inheritance entirely within the control and 
 direction of the legislature. {Sleight v. Bead, 18 Barb. B. 1 59.) 
 And the married woman's acts of 1848 and 1849 are not liable to 
 objection, as impairing the obligation of a contract, because they 
 defeat the expectation which .the father of a living child had, pre- 
 vious to those acts, of being tenant in curtesy in lands acquired by 
 his wife during coverture and subsequent to those acts. {Steverir 
 son V. Townsend, 22 JT. T. B. 517.) 
 ' § 454. It has been deliberately held in at least two cases in the 
 court of appeals, that the common law disability of a husband to 
 take land by conveyance from his wife, is not removed by the 
 statute of 1849, enabling the wife " to convey and devise real and 
 personal property, as if she were unmarried;" and therefore it 
 was decided that a deed executed by a wife, in contemplation of 
 death, in good faith and voluntarily, was wholly ineffectual. The 
 learned judge who delivered the opinion of the court said : " No 
 doubt there was an intention to confer upon the wife the legal 
 capacity of a feme-sole, in respect to conveyances of her property, 
 but this does not prove that she can convey to her husband, for no 
 such question could possibly arise in respect to a feme-sole, there 
 being no person to whom, in respect to conveyances as made by 
 her, the rule of the common law could apply. By assimulating 
 the case of a wife to that of an unmarried woman, the legislature 
 merely meant to say that she should have the same power as though 
 she was not under the disability of coverture. Taking away that 
 disability, she would have power to make all such conveyances as 
 were not forbidden by special provisions of law ; but such general 
 statutes are never understood to overreach particular prohibitions, 
 founded on special reasons of policy or convenience. Corporations 
 cannot in general take title to lands by will. The removing of the 
 disabilities of fem^s-covert would not allow them to make a devise 
 
MARITAL EIGBTS IN NEW ioRE. 639 
 
 to a corporation not authorized to take. It ia not the disability of 
 the wife alone which would, by the common law, render void her 
 conveyance to her husband. The husband is as much disabled to 
 take under such a conveyance as she was to convey. Therefore, 
 to render the conveyance valid, the husband's disability, as well as 
 that of the wife, must be removed ; but as has been remarked, 
 there is no language in these acts, and nothing in their apparent 
 intention, which looks to the removal of any disabilities under 
 which he labored." The decision of the court was not unanimous, 
 but was pronoimced in accordance with the opinion read ; and it 
 was further held in the case, that the defective conveyance could 
 not be aided by the application of equitable principles. ( White v. 
 Wa-ger, 25 W. Y. B. 328, 333, 334. S. C. 31 Barh. 250.) As was 
 intimated, one of the judges dissented from the determination in 
 the case of White v. Wager ; but a case was subsequently decided 
 by the court in which all of the judges agreed, that the disability 
 of the husband to take land by conveyance from the wife remains 
 as before the statute of 1849, although it was said that such a deed 
 might be established by the application of principles of equity 
 when a consideration has been paid, and also when the grantee is 
 entitled to equitable relief for improvements made upon the 
 premises in good faith, to the extent of such equitable claim. 
 ( Winans v. Peebles, 32 IH'. 7. R. 423. Tide also Smage v. G'Neil, 
 42 Barb. R. 374.) 
 
 § 455. It seems that it was the purpose of the legislature, by the 
 married woman's acts of 1848 and 1849, to confer new rights of 
 property upon the wife, separate from and indepeiident of her 
 husband, and to enlarge and render more fixed and certain those 
 already existing. Long anterior to those acts, the right of the 
 wife to the ownership of property, both real and personal, distinct 
 and independent of her husband, was thoroughly recognized and 
 enforced by the courts. But the legislature thought proper to 
 enlarge the rights of the wife in this respect, and make them more 
 certain and stable, and with that view the enabling acts were 
 passed. As the statute law now stands, a married woman may 
 acquire the title to personal property, as well as real, by grant or 
 purchase ; and this purchase may be made in any of the ordinary 
 modes known to the law or to the cours^ of business. It may be 
 made by the payment of cash for the property purchased, and if 
 this cash be the property of the female, and paid with the intent 
 
6i0 IiAW OF COVESTUSE. 
 
 to vest the title to the gobds in her, she undoubtedly acquires 
 thereby a perfect and indisputable title to the property. So the 
 purchase may be on credit — on her credit ; and if there be no 
 doubt that the purchase was made by her; that the credit was 
 given to her ; that the object was to vest the title in her, and that 
 all this was well known both to the seller and the purchaser, there 
 can be no possible- doubt that she acquires title thereby to the 
 property in her own name, and as her sole and separate property. 
 So the purchase may be made by herself in person, or by her 
 authorized agent. There is nothing in the statute or in principle, 
 which when her right to act as & feme-sole is recognized, forbids 
 her employment of an agent, any more than it forbids the employ- 
 ment of such agent by any other person. So long as the transaction 
 is thus understood by the vendor and by the vendee and by the 
 agent, this conclusion is irresistible. And there would seem to be 
 no good and legal reason why she tnay not employ or at least use 
 her husband as her agent to make such purchase, provided it be 
 done honestly and in good faith. - For the purpose of such a 
 purchase she is regia,rd^d as & feine-sole, and as a person distinct from 
 and independent of her husband, and he stands in the same relation 
 to her. It is immaterial who such agent may be, provided he be 
 a person of sufficient intelligence and competence to make a valid 
 contract. The act of agency may be performed for compensation 
 express or implied, or it may be gratuitous, and in either case it is 
 valid. If gratuitous, it cannot interpose any obstacle to the pas- 
 sage of the title from the vendor to the intended vendee. If 
 worthy of compensation it may create an obligation to pay a 
 quantum meruit to the husband of which his creditors may avail 
 themselves, but it cannot prevent the transfer of the title to her. 
 If agreed to be for compensation between the husband and wife, 
 such agreement is either void or valid. If void, it does not destroy 
 the agency nor affect the title to the property ; but only the title to 
 the compensation. If valid, and the better opinion inclines in 
 that direction, it entitles the husband to that compensation. If 
 not paid at the time, there may be a technical difficulty in the 
 way of the husband's bringing a suit to recover it directly against 
 his wife. If there is, that cannot destroy the wife's title to the 
 property. The husband may receive the amount of it out of 
 the wife's funds which come into his hands ; or he may transfer 
 the right of action to a third person ; or his creditors may obtain 
 
MARITAL SIGHTS IN NEW rORK. 641 
 
 the benefit of it by action. But it cannot; operate to bar the wife's 
 acquisition of title. Of course, if the transaction be a mere cover, 
 if the object be to use the >vife's name to cover the husband's 
 property, parties are at liberty to show the facts, and thus to nullify 
 the transaction. 
 
 But the act of 1860 is more comprehensive than those which 
 preceded it. The first, section recognizes the various sources of 
 title by descent, devise, bequest, gift, gi-ant, and also such as she 
 acquires by her trade, business, labor or services carried on or 
 performed on her sole or separate account, and confirms that title 
 in stronger terms than those used in the previous acts. 
 
 The second section authorizes her to bargain^ sell, assign, and 
 transfer her separate personal property, and carry on any trade or 
 business, and perform any labor or services, on her sole and sepa- 
 rate account, and declares the earnings thus made to be her sole 
 and separate property, which may be used or invested by her in 
 her own name. 
 
 By the provisions of the act of 1860, as amended by the act 
 of 1862, the married wonian's right to. acquire and dispose, of 
 property, and to make bargains and contracts in relation to it, in 
 almost any mode known to the law or to the practice o^the com- 
 mercial community, would seem to be recognized. In carrying 
 on her trade or business, while, it is done in her own name or for 
 her own benefit, it may, like all other trades and business, be 
 carried on by herself personally, or through the instrumentality 
 of others. There is no greater disability imposed- upon her than 
 upon any feme-sole, and there is nq reason or principle why there 
 should be. So, also, in this business, as in the purchase of prop- 
 erty, she may employ her husband as her agent. Eor the purpose 
 of the business she is a ferm-soUy and , he is a rrum-sole. He 
 may act for her like another person, and whether he is entitled to 
 his compensation, and, if so, how he is to obtain it, seems not 
 necessarily involved in the issue. The law gives a married woman 
 a right to purchase personal property;, to purchase it for cash; to 
 purchase it on credit; to purchase it personally; to purchase it 
 through, the medium of an agent; to do it through the agency 
 of a third person ; to do it through the agency of her husband. 
 If the purchase be fair, the intent made, known, the agency 
 disclosed, and the transaction honest, her title to the property is 
 unquestioned — is indisputable, , 
 81 
 
642 LAW OF COVERTURE. 
 
 She may intend to employ the property thus purchased in trade, 
 and in trade for the benefit of her husband, by the fraudulent 
 iise of her own name ; until she does so, the property is hers, and 
 intangible by his creditors. She may carry on the trade or busi- 
 ness of a merchant ; she has a right to do so ; she may carry it on 
 with the property and means to which she has thus fairly acquired 
 title. She may carry it on herself by her personal labor and 
 services, exclusively, or exclusively through the medium of agents, 
 or partly in each mode ; and it is lawful. She may make her 
 husband her agent, and if she 'does it bona fide, without permitting 
 her name to be used as a cover for fraud, if she carries it on for her 
 own benefit, employing him fairly as her agent, and willing and 
 intending to compensate him, or through him his creditors, 
 and not to absorb the proceeds of his labor and earnings in her 
 business for her own benefit, excluding his creditors therefrom, 
 the transaction is lawful and will be upheld by the law. 
 
 Such is the judicial reasoning in a case where the creditors 
 of the husband sought to satisfy an execution out of property 
 employed in business carried on in the name of the wife, by her 
 husband, nominally as her agent ; and there are principles enunci- 
 ated in tlje discussion which are very interesting and important, 
 and which may apply to cases constantly arising as the law now 
 stands. {AMey v. Deyo, 4i Bari. ^.374, 378-384. But vide 
 Coon V. Brooh, 21 ib. 546 ; Woodbeok v. Ha/oens, 42 ib. 66 ; and 
 Base V. Bell, 38 ib. 25.) 
 
 § 456. It has likewise been determined by the court of appeals, 
 that the acts for the more effectual protection of the property of 
 married women demand a liberal construction to carry into effect 
 the beneficent intent of the legislature ; and it was affirmed that 
 the design was not to render the property of the wife inalienable 
 during coverture, but to secure to her the beneficial use of it. In 
 respect to property owned by her at the time of the marriage, it 
 relieved her from the common law disabilities incident to cover- 
 ture, and continued to her her rights as if she had remained sole. 
 The property continued "her sole and separate property;" that 
 is, her property absolutely and with all the incidents of property, 
 and as " if she was a single woman." Property, considered as an 
 exclusive right to things, contains not only a right to use them 
 but a right to dispose of them, either by exchanging them for 
 other things, or by giving them away to any other person without 
 
MAEITAL BIGMTS IN NEW YORK. 643 
 
 consideration, or even throwing them away. The property con- 
 tinues in her without qualification, and with all the rights which 
 a feme-sole or other person not under disability could take or enjo^ 
 ■in respect to it. The statute gives the wife the property, and she 
 takes it with all the incidents of ownership absolute and unquali- 
 fied. Upon this reasoning it was decided that a wife, by allowing 
 her chattels belonging to her, and which remain in specie, to be 
 employed by her husband in the carrying on of a business for 
 their common benefit, does not devote them to her husband so as 
 to render them liable for his debts. {Sherman v. Elder, 24 W. Y. 
 E. 381. Vide also Van Ellen y. Carrier, 29 Barb. H. 644.) 
 
 § 457. The object of the married woman's acts of 1848 and 1849 
 was to divest the title of the husband ^/wre mariti during coverture, 
 and to enable the wife to take the absolute title, as though she 
 were unmarried. Before the act of 1860 there was some difficulty 
 in a married woman purchasing property, whether real or personal, 
 on credit, arising out of the principle that she could not make a 
 contract for payment which would be binding upon her personally, 
 according to the general rules of law ; but if the vendor would 
 run the risk of being able to obtain payment of the consideration 
 of the sale, it has been held that the transfer would be valid, and 
 no estate would pass to the husband, whether the wife had ante- 
 cedently any separate estate or not. Upon this principle a demise . 
 to a married woman, by a person other than her husband, of a term 
 for years in land, by a lease reserving rent, but containing no 
 covenant or agreement on her part for its payment, was sustained 
 as a valid grant, by which she might take and hold the premises 
 to her sole and separate use. {Dariy v. Callagham,, 16 W. Y. B. 
 71. Vide also Fox v. Duff, 1 BoIaj's B. 196.) And, upon the same 
 principle, it was held by the court of appeals that, after the 
 statutes of 1848 and 1849, and independently of the act of 1860, a 
 married woman might acquire the title to real or personal property 
 by buying the same upon credit, and that no interest therein would 
 pass to her husband, whether she had antecedently any separate 
 estate or not. If the vendor would take the risk of payment, the 
 transfer was perfect ; and, having thus obtained the property, she 
 could manage it by the agency of her husband or any other, and 
 hold the profits and increase to her separate use. {Knajpp v. Srmth, 
 27 N. Y. B. 277.) And, upon the authority of the case of Knajpp 
 V. Smith, the supreme court held that, under the acts of 1848 and 
 
644 ZAW OF covestvue: 
 
 1849, a married woman lias capacity, notwithstanding her coverfc- 
 nre,.and irrespective of the act of 1860, authorizing a, feme-covert 
 t'o carry on a trade or business, and protecting her earnings, to 
 purchase a stock in trade, business arid good will, by executing a 
 mortgage on her own separate real estate, and to recover for work, 
 labor and services done and performed, and materials furnished by 
 her in the course of such business. (James v. Taylor, 43 JSwri. H. 
 530,632.) The court of appeals, ' however, in September,, 1866, 
 held that, prior to the statute of 1860, a married woman could not 
 render herself personally liable for the payment of rent, since the 
 enabling. acts 1 of 1848 and 1849 did not abrogate the general rule 
 of law that & feme-covert cannot bind herself personally by contract 
 for payment ; but the proposition was re-affirmed, that if the lessor 
 will assume the risk of being able to obtain payment of the rent, 
 the lease will be valid, and no estate will pass to the husband. 
 {D.raper v. Stouvenel,- 35 iT. Y. S. 507. And vide Goulding v. 
 Davidson; 26 ib. 604.) 
 
 § 458. The married woman's acts of 1848 and 1849 have been 
 declared by the supreme court to be remedial statutes, intended to 
 remedy and remove a disability which was thought to be unwise, 
 unjust and a reproach to the civilization of the age.' These statutes 
 must, therefore, have a liberal and beneficent interpretation, so as 
 to give effect to the intention' of the legislature, notwithstanding 
 Boriie of the results may seem to proceed beyond the letter of the 
 acts. The manifest intention was to enable married women to 
 take, hold, and use and erijoy real and personal property obtained 
 in the way prescribed in the statute, and also to grant, devise and 
 convey the same, to the same extent and with the like effect as if 
 they were sole and unmarried. Incidental to the right of property 
 and the power of disposition, is the power to improve it and increase 
 its value, and a like incident to the use of real property, is the right 
 to the increased value, whether it proceeds from improvements put 
 upon it by the owner or from a rise in value. Neither of these 
 elements of value can be separated from the property in its original 
 and primary condition, and become an integral part of the prop- 
 erty itself. A married woman who borrows money \ipon the credit 
 of her separate estate, makes valuable improvements upon it, and 
 thus enhances its value beyond the cost of the expenditure, does, not 
 derive the enhanced value by any of the ways mentioned in the 
 statute, but takes it as an incident and as a part of the property itself. 
 
MARITAI, BIOBTS IN NJEW YORK. 645 
 
 Such improvement and enhanced value may and would b© deemed 
 to be the fruits and results of her- skill and labor, but no one would 
 probably think it should , inure to the benefit of her husband and 
 his creditors, for the very obvious reason that the improvements 
 are blended with, and have become a part of, the property itself, 
 and no new property ha,8 been created or acquired. The value or 
 the equivalent in money has been enlarged, but the lands, the 
 property, is still the same. Upon this r'easoning the court decided, 
 that when the wife purchased real estate, and borrowed money and 
 built upon it, and hy her skill and good fortune greatly enhanced 
 its value, the whole belonged to her, and did not constitute, prop- 
 erty to which her husband or his creditors could have any legal or 
 equitable rights, {Goss v. Oahill, 42 Barb. R. 310, 315.) 
 
 But the same court held, however, that when a married woman, 
 receiving a sum of money as a preferred creditor, under the assign- 
 ment of her husband, embarks it. in trade, in a business under the 
 control of her husband, and carried on by him in liis own-name, as 
 "agent," commingling it with the avails of hiS; labor, she deprives 
 herself of the shield provided by the acts of 1848 and 1849, "for 
 the more effectual protection of the property of married women," 
 and subjects it to the claims of -her "husband's ereiditors. : {Bneldey 
 V. Wells, 32 Barb. B. 569, But vide Abbey v. BffyOi 44 ib. 374.) 
 And the court had previously held that a wife may confer upon 
 her husband. the use or income of her separate property as a gift, 
 and thatiher acquiescence, or assent to its receipt or use by him, is 
 evidence of a gift by! her.' Therefore, wheQ a married womain, 
 owning a farm, in her own right, goes into the possession of it with 
 her husband, and occupies it with him and their family ; she per- 
 mitting him to cultivate the land, hut without any agreeUieht as to 
 the rents or produce, and to use the proceeds in the support of her- 
 self and family, and to sell^ exchange and deal with the crops at his 
 pleasure; it is decided- that she thereby confers, on him rights 
 which cannot be withdrawn or repudiated when his Credi tore, seek 
 to collect their demandsout of property for- which he has exchanged 
 the produce of the farm ; but that at law and in equity property 
 thus purchased by the liushand belongs to him, and may be seized 
 by his creditors. {Gage y. BaviQhyjW Barb. .ff. 622. Avdmde 
 Van Sickle v. Van Sickle, S How. Pr. R. 265.)' But the court; of 
 appeails reversed the judgment in Buckley v. Wells {siiipra), laying 
 down the rule, that,, as theilaw now Bt.ands,;a mjarried woman may 
 
646 IiAW OF COVEBTUBE. 
 
 manage her separate property through the agency of her husband, 
 without subjecting it to the claims of his creditors ; holding also 
 that the wife is entitled to the profits of a mercantile business, 
 conducted by the husband in her name, when the capital is fur- 
 nished by her, and he has no interest but that of mere agent ; and, 
 further, that the application of an indefinite portion of the income 
 to the support of the husband does not impair the title of the 
 wife to her property ; and that no interest in her separate estate 
 is acquired by the husband or his creditors through his voluntary 
 services as her managing agent. {BuoTdey v. WeUs, 33 JT. Y. 
 E. 518.) 
 
 § 459. It has been held by the supreme court, that the power 
 conferred upon married women to devise real and personal estate, 
 by the act of April 11, 1849, amending the act of April 7, 1848, 
 for the more effectual protection of the property of married women, 
 was not repealed by the act of March 20, 1860, concerning the 
 rights and liabilities of husband and wife. ( Wallace v. Bassett, 41 
 Barb. JR. 92.) And the court of appeals have held that where a mar- 
 ried woman, possessed of a separate personal estate, dies without 
 having made any disposition of it in her life-time, or by way of 
 testamentary appointment, the title thereto vests in her surviving 
 husband, and cannot be affected by the granting of adnunistration 
 upon her estate to any other person ; declaring that the statutes of . 
 1848 and 1849, do not change the rule at common law in this 
 respect, but affect only such property as she disposes of in her life- 
 time or by will. {Ransom v. Nichols, I'h N. T. R. 110.) The 
 separate estate of a married woman, in real property owned by her 
 since the acts of 1848 and 1849 in relation to married women, is 
 none the less a sejoa/rate estate because it is a legal instead of an 
 equitalle estate ; and the only difference between the separate 
 estate of a married woman, as previously recognized and acted 
 upon by courts of equity, and their title to property acquired or 
 held under those acts, is, that the former is an equitable and the 
 latter a legal estate or title. {Colvin v. Currier, 22 Barbour'' s 
 R. 371.) 
 
 A trust for the benefit of an unmarried female, .ccompanied by 
 a limitation of the income of the trust property to her sole and 
 separate use, for life, free from the control or interference of any 
 future husband, created prior to the acts of 1848 and 1849, will 
 prevent a husband whom she may marry subsequent to those acts, 
 
MABITAL BIGSTS IN NEW YORK. 64:7 
 
 from acquiring by the marriage, any vested rights in the wife's life- 
 time, in or to her savings from her income, and those acts give to 
 the wife the power to dispose of such savings by will. But, as has 
 been before shown in principle, if she dies without having. disposed 
 of such savings, or of the property arising therefrom, by will or 
 otherwise, her husband, on her death, wiU be entitled, in his marital 
 right, to such savings or property. {Rieben v. White, 43 Barb. S. 
 92. 8. C. 28 How. Pr. B. 320.) 
 
 § 460. Since the married women's acts of 1848 and 1849, \rhen 
 the wife is in possession of property under claim of ownership, her 
 right as owner cannot be overlooked without evidence, any more 
 readily than if she was unmarried. The statute has worked this 
 change, and instead of an adverse presumption that the property 
 connected with a business which she carried on as a single woman, 
 with the property in her possession, belonged to the husband, the 
 presumption is now in her favor, and must be overcome by^ 
 the party who disputes her right or title. The fact of coverture 
 has ceased to have any relation to the technical right of a married 
 woman to maintain an action in respect to her separate property ; 
 and the allegation of coverture in the complaint is no longer 
 necessary. {Peter's v. Fowler, 41 Barh. P. 467.) 
 
 Under the provisions of the acts of 1848 and 1849, a married 
 woman, having a separate legal estate consisting of money, may 
 lend the same, take and hold securities therefor in her own 
 name, and sue for and enforce them at law, and. the power to do 
 these things includes the ability to make all contracts incident' 
 thereto ; and she is not exempt from the liabilities which the law 
 imposes upon all other lenders of money. It was held, therefore, ^ 
 that an action may be maintained by a borrower against husband / 
 and wife jointly, to recover back money paid as usurious interest, ) 
 where the money loaned and the security taken therefor belonged \ 
 exclusively to the wife, as a part of her legaLestate, and the money ) 
 taken for the loan and forbearance was paid to and received by ^ 
 her, and the husband, so far as he participated in the transaction, 
 acted for her and with her knowledge and assent. {Porter v. 
 Mownt, 41 Barl. E. 561. But vide S. C. 45 ih. 422.) 
 
 § 461. The acts of 1848 and 1849 were not intended to enable 
 Hiarried women to take, and hold property jfmitly with their hus- 
 bands, but to take and hold and dispose of property as if they had 
 no husbands. It was determined, therefore, that when a lease for 
 
 
648 LAW OF COVERTUBB. 
 
 a term of years is executed to husbaiid and wife jointly, the rights 
 and interests of the • lessees, respectively, by and under the lease, 
 and in and over the demised premises, are what they are declared 
 to be by the common law, and are unaffected by those acts. If 
 such a lease were executed to the wife alone, the term or leasehold 
 interest, under the protection of the statute, might be held by her 
 ^ to her sole and separate use, free from the control, disposition or 
 debts of her husband ; though previous to the statute of 1860, her 
 covenant to pay the rent reserved in such lease, would have been 
 absolutely void at law, and it is not certain that the execution of 
 such a covenant would have been held in equity suflScient evidence 
 of an intention on her part to charge real estate of hers, held by 
 her at the time to her separate use, with the payment of the rent. 
 But clearly, when the leaae is executed to the husband and wife 
 jomtl/i/, the payment of the rent reserved by the lease cannot be 
 enforced ag&,inst the Wif6, and the interest of the lessees may be 
 made subject to the debts of the husband. {Goelet v. Gori, 31 
 Barb. E. 314.) 
 
 § 462. Whether the 'acts of 1848 aiid 1849 entirely abrogate the 
 existence of prospective tenancy by the curtesy, is a question about 
 which there has been considerable doubt, and the decisions have 
 been both ways upon the subject. It was held by the supreme 
 court, at spedal term, at an early day, that the act of 1848, as 
 amended by the act of 1849, in no way changed the law of descent 
 and that real estate, by the law of descent, is cast the same as if the 
 law had never been passed. It was admitted that the statute cuts 
 off most emphaticalty all that freehold estate which the husband 
 acquires J we wajom during coverture, and which is a freehold 
 estate during the joint lives of the husband and wifej and that the 
 husband has now no interest in his wife's lands during coverture 
 which he can use or transfer, or which his creditors can in any 
 manner reach. But it was afiSrrned that the estate is vested in the 
 wife during coverture, and iipon her death descends to her heirs, 
 charged with the inciimbrance of the husband's rights as tenant by 
 the curtesy, if there has been a child born alive of the marriage; 
 and this view was sustained by a learned and elaborate opinion 
 of the court. {Hurd v. Cass, 9 :^a/rb. R. 366, 370.) This doctrine 
 was concurred in several years later by another judge sitting at 
 special term, who held that if a married woman, seised of real 
 estate which accrued to her during coverture, does not avail herself 
 
ITARITAL RiaSTS JCV NEVt YORK. 649 
 
 of the right given by the statutej to convey or devise the same,'lier 
 husband will, upon her decease, become tenant by the curtesy when- 
 ever he would have been such tenant prior to the act of April, 
 1848. {Ohrh v. GlarJc, 24 Barb. R. 581.) 
 
 On the contrary it has been held by the supreme court at general 
 term, upon mature deliberation, that the acts of 1848 and 1849 
 entirely abrogate the existence of the prospective tenancy by the 
 curtesy, and that every quality and incident that is tiecessary to 
 constitute a tenancy by the curtesy is destroyed by the provisions 
 of these acts. The judge who decided the case at special term 
 delivered the opinion of the court at general term, and after examr 
 ining a large number of authorities, including those of MurdY. 
 Cass (9 Barb. B. 366), and Clarh v. Clarlc {sv^a), said : " These 
 statutes execute their own purpose. Trustees are dispensed with, 
 and husbands excluded. The machineiy is simple, the intent clear. 
 From the influences of suchi considerations, I held before, and, 
 seeing no reason to change those views, I hold now, that our 
 natural progress in knowledge and intelligertce, our advanced social 
 an^ political condition, our changed system of government, our 
 better appreciation of equal and natural rights of every class and 
 condition of citizens, presented a reason, and I thought, and still 
 think, a necessity, for the passage of an act for the eradication of 
 this unnatural and worse than useless tenure called curtesy, as one 
 of the vestiges of a by-gone military age, which had too long 
 remained an, excrescence upon our system of law, based, as we 
 claim it to be, upon the theory of an equality of natural rights. 
 In' my judgment the provisions of these statutes of 1848: and 1849 
 were aptly fitted, and were intended, to effect a radical change in 
 relation to th^e tenures ; tha,t they introduced changes more suited 
 to the necessities of the times, and to the pfesient condition of 
 parties; and that such a change was demanded by the highest con- 
 siderations of public policy, was dictated by the soundest view's of 
 justice, and rested on a substantial basis of good sense. * * * 
 I cannot hold that a renudial statute whose letter and title declare 
 its design to be protection of the estates oi married women, shall, 
 by construction not warranted by its language, be imade to protect 
 thehmband, and to give to the latter aU estate which all elementary 
 writers declare that they have neither a natural nor a moral right 
 to hold." IBUUngs v. BaJcer, 28 Barb. E. 343, 370, 371, 378.) 
 This case was very fully considered at general term, and, although 
 82 
 
650 LAW OF COVEBTUBE. 
 
 one of t]ie four judges dissented, it must be regarded as settling 
 the question that tenancy by the curtesy no longer exists in the 
 St^te of New: York, unless the authority shall be overruled by 
 the court of appeals. 
 
 CHAPTEE XXXII. 
 
 THE STATUTOET POLICY OF NEW TOEK EESPECTING HUSBAND AND WIFE 
 
 DECISIONS TTNDEE THE PEESENT STATUTES OONTEOL OF MAEEIED 
 
 WOMEN OVEE THEIE OWN PEOPEETY — EFFECT OF THE MAEEIAGB OF 
 THE PARTIES TO. A BOND OE PEOMISSOEY NOTE UNDEE EXISTING 
 STATUTES — LIABILITIES OF MAEEIED WOMEN UNDEE THE STATUTE — 
 CONSENT OF HUSBAND TO HIS WIFe's CONVEYANCE — ACTIONS BY AND 
 AGAINST MAEEIED WOMEN — CHAEGES AGAINST HEE SEP ABATE ESTATE 
 
 ACTIONS BY HEE AGAINST HEE HUSBAND — TRUSTEES OF MAEEIED 
 
 WOMEN — mSUEANCE OF HUSBANd's LIFE BY WIFE — SUMMAEY. 
 
 § 463. The marriage of a female mortgagee with the mortgagor, 
 since the act of 1848 for the protection of the rights of married 
 women, does not extinguish her right of action upon the mortgage ; 
 and when such mortgagee unites with her husband in a j unior mort- 
 gage of the same land, the act affects only her inchoate dower inter- 
 est, but does not in the absence of words for that purpose impair 
 her right to priority of lien. In the State of New York, the Code 
 and the acts of 1848 and 1849 have completely swept away the com- 
 mon law rule which gave the husband rights in, and control over, the 
 property of the wife. Now eyery female, in respect to property 
 owned by her at the time of marriage, continues its owner after 
 marriage, with full power to use, control or dispose of it in every 
 particular, the same as if she had remained unmarried. Marriage 
 no longer operates upon the property, but only upon the person ; 
 by it the estate of the female is no longer transferred to the hus- 
 band, nor the right to use or control it. The statutes declare " that 
 the property of any female who shall thereafter marry, and which 
 she shall own at the time of marriage, shall continue her sole and 
 separate estate, as if she were a single woman." This language is 
 clear and explicit ; it leaves no room for doubt or construction, and 
 should receive at the hands of the court a faithful and fair con- 
 struction. To hold that the marriage of the mortgagor with the 
 
MARITAL EIGSTS IN NEW YORK. 651 
 
 t 
 
 mortgagee released the debt, would be to nullify the express lan- 
 guage of the act. These statutes are inconsistent with the common 
 law, and, as both cannot stand, the latter must yield. The reason 
 for the common law rule, viz., the unity of burdens which disabled 
 the wife from suing the husband, has also been repealed. {Code, 
 § 114.) The wife has been admitted^to separaterights of action as 
 well as of property. Now a wife may maintain an action in her 
 own name, concerning her separate estate, against her husband or 
 any other person. This was the reasoning of one of the judges who 
 gave opinions in the court of appeals in a case involving the ques- 
 . tion, and the other two judges who wi'ote opinions concurred in the 
 decision that the mortgagee was within the protection of the statute. 
 If the bond and mortgage in question had been given by some third 
 person, it was conceded that the rights of the wife would not have 
 been affected by her subsequent marriage. But the statute makes 
 no distinction in favor of a husband who is himself the debtor of 
 the wife, antecedently to the marriage ; and it was suggested that 
 the bond and mortgage in the case were the property of the wife, 
 which she owned at " the time of her marriage," and, by the -letter 
 of the act, they were to continue .her " sole and separate property 
 as if she were a single female," and that there is manifestly nothing 
 in the language or in the general policy of the statute which will 
 justify a discrimination in favor of the husband. {Power v. Lester, 
 23 N. 7. a. 527.) However, if an unmarried female makes a 
 promissory note, and subsequently intermarries with the payee and 
 holder of the note, the marriage operates to discharge the note 
 and all liability thereon en the part of the maker. ( Curtis v. Brooks, 
 ^1 Barb. B. 4c1Q.) 
 
 § 464. Married women are authorized, under the acts of 1848 
 and 1849, to subscribe for and own stock in banks in their own 
 right; and such stocldiolders are liable, under the act of 1849 
 {Laws of 1849, ch. 226), to the amount of the stock held by them 
 in case default is made by the bank in the payment of any of its 
 debts or liabilities. The legislature had tlie power to alter the 
 common law, so as to make married women personally liable to the 
 amount of their stock. It has thought proper to do soj and 
 the courts are bound, as in all other cases, to enforce the liability. 
 The liability is a statutory one, and extends to ilia feme-covert, but 
 affects lier property alone. Wliat it may be worth to the creditors 
 of the bank, or by what particular proceeding it is to bo enforced 
 
652 " LAW OF COVERTURE. 
 
 in a giren case/ are questions to be decided by reference to the 
 statute. It is sufficient that the courts hold that a married woman, 
 under the acts of 1848 and 1849, may hold stock in a bank, and 
 holding such stock is within the act (cA. 226 ofl9,iS) to enfoi-ce 
 the liability of stockholders, and is liable as such to assessment 
 for its debts. {Matter of th^ Reciprocity Bank, 29 Ba/rh. E. 369. 
 S. C. 22 If. T. R. 9.) This is important simply as settling the 
 principle that a fcTne-covert may. subscribe for and hold stock in a 
 corporate company, and, when she does hold such stock, she is sub- 
 ject to the same liabilities on account of it as other holders of 
 stock in the same company. She cannot, in such cases, shield 
 herself from the burdens that attach to a stockholder, on the plea 
 of coverture. 
 
 § 465. The act of 1860, concerning the rights and liabilities of 
 husband and wife, relieves the wife from her disabilities as di feme- 
 covert, and enables her to carry on her trade or business, and 
 perform any labor and services on her sole and separate account. 
 The power to carry on a trade or business includes the ability 
 to make all contracts incident to such trade or business. And 
 the same act, by exempting the husband from all liability upon 
 or in respect to bargains or contracts made by the wife in or about 
 the carrying on of her trade or business, recognizes the ability of 
 the wife to make executory contracts which will be valid as against 
 her, notwithstanding her coverture. {Bartons. Burr, 35.BarI>. 
 R. 78, 80.) The construction, given in this case to the statute was 
 fully assented to and indorsed by the New York common pleas, 
 in a case in which it was determined, that when a married woman 
 carries on the millinery business upon her own account, and 
 purchases goods upon credit for such business on her own account, 
 an action may be brought against her the same as if she were unmar- 
 ried, and a judgnlent recovered, and the amount collected by 
 execution out of property belonging to her in her own right, 
 iKlen V. Giiney, 24 JIow. Pr. -ff. 31.) 
 
 A iHarried woman may compromise a doubtful claim affecting 
 her separate eatate. So held in a case where a feme-covert agreed 
 with the principal beneficiary under a will, to withdraw her 
 opposition to the probate of such will upon consideration of the pay- 
 ment to her of a sura of money ; it appearing that her separate 
 estate would be increased by defeating the probate of such will. 
 {Palmer v. North, 35 Barb. R. 282.) 
 
MASITAL RIGETS IN,NJ!1W^ YORK. • 653 
 
 § 466. Where a married woman, on purchasing afarm as, hei* 
 separate estate, also purchased certain stoc)? and farming imple- 
 ments thereon, and executed a mortgage of the, chattels to secure 
 the payment of the price therepf, to the vendor, the payment of 
 ■which chattel. mortgage was guaranteed by two other persons ; the 
 court held that the vendor, by accepting the chattel mortgage and 
 guaranty, must be deemed to have trusted to the sanie as his 
 security for the payment of the price ; and that in the absence of 
 any finding that the chattels were bought or the debt incurred for 
 the benefit of the wife's separate estate, the same could not be 
 charged with the payment. The court, however, laid down the 
 proposition that a married woman not being able to make a con- 
 tract valid at law, so as to bind herself personally, if she has a 
 separate estate and contracts debts for her benefit, on the credit of 
 it, it is just and right that a court of equity should enforce . pay- 
 ment of the debts out of her separate estate, {Lecleliey v. ^Powers, 
 39 Barb. B. 655.) The action in this case was brought upon a 
 transaction which occurred long before the acts of 1860 and 1862 ; 
 therefore, some of the reasoning of the court may not be applicable 
 to a case arising under the last mentioned acts. 
 
 A married woman, having a separate estate in lands, but not in . 
 the rents and profits thereof, not conducting, any business on her ■ 
 own account, cannot charge such separate estate by a parol promise 
 to pay the debt of her husband, where the separate estate has 
 received no benefit on account of the contracting of the debt, and 
 will not be benefited by the payment of the debt. The judge, in 
 giving his opinion holding this doctrine, said : " No promise of a 
 man, orally made, will bind his real estate ; why should not the 
 oral promise of a woman have as much protection ? The case of 
 Yale V. Dederer (18 iT. Y. R. 265, same case, in 22 id. .450), and 
 the cases cited therein, I think, control this case. The defendant 
 has neither made a separate instrument binding. her separate estate 
 to pay a debt not beneficial to her estate, nor has she created an 
 equitable charge upon it by pledging payment from it as a debt 
 which is beneficial. It is urged that the modem spirit of legisla- 
 tion evinces a desire and intent to give to married women more 
 absolute control over their separate estates than formerly. This is 
 doubtless, true, so far as relates to their estates acquired in a cer- 
 tain way, after these acts took effect, and so far as such control 
 will protect their estates ; but what is claimed in this case would 
 
654 LAW OF COVERTURJS. 
 
 hardly be a protection, to them ; on the contrary, it -would open a 
 door by which worthless, insolvent and sjjendthrift husbands, who 
 perhaps exercise as much control over the minds, the fears and 
 the apprehensions of their wives as better disposed husbands, could, 
 and thus would, control their estates, and thus might exhcmst the 
 separate estates of their wives by thei/r improvidence. The pro- 
 tection of the disability of coverture, therefore, is still the best 
 protection for them in this respect. This disability has not been 
 removed by this modern legislation; certainly not as to estates 
 previously acquired." {LedUe v. Vroomcm, 41 Barb. H. 109, 113.) 
 The doctrine of this case is simply that the wife cannot charge her 
 separate estate by pwrol for the payment of the debts of her hus- 
 band ; but it cannot be denied that a married woman can charge 
 the whole or a portion of her separate estate as a surety for her 
 husband. The undertaking, however, must be in writing, and 
 the intention to charge her separate estate must be expressed 
 in the instrument, although it is not necessary to specify the 
 property to be charged, unless the wife intends to charge only a 
 specific portion of it. {Bennett v. Juichtensthin, 39 Barb. B. 194.) 
 
 § 467. When a married woman by the terms of a trust created 
 for her benefit under a will, is to have the income of a certain 
 fund and real estate during her life, for her sole and separate use, 
 free from the control or interference of any future husband whom 
 she may marry, her husband has no vested right to or interest in 
 the income, or her savings out of the income during her life, 
 although the marriage took place previous to the acts of 1848 
 and 1849. By such marriage the husband acquired no vested 
 rights which could not be interfered with or taken away by his 
 wife's will under the statute. {Bieben v. Wliite, 28 How. Pr. B. 
 320. 8. G. 43 Ba^l. B. 92.) 
 
 A married woman, by accepting a deed of land subject to a 
 mortgage, and covenanting to pay the mortgage, does not thereby 
 charge herself, or any of her separate property, except the land 
 conveyed, unless the deed and covenants are made in the course 
 of a trade or business canied on by her. The act of 18C0 gives 
 her full power to bind herself in all proper matters concerning 
 any business carried on by her for her OM'n benefit, and on such 
 contracts she is personally liable, but otherwise the common law 
 disability still attaches to the wife. (Brown v. Hermarm 14 
 Abbott's Pr. B. 394.) 
 
MARITAL RIQBTS IN NEW TORE. 635 
 
 When a promissory note is indorsed over and delivered to a 
 married woman by the payee, the property in the note vests in her 
 under the act of 1849. The note being thus indorsed to her, she 
 acquires it in the form and mode prescribed by the statute for the 
 acquisition of property by married women which they are to hold 
 and enjoy as their separate estate. The possession of and property 
 in the note, constitutes a separate estate of itself, and though she 
 has no other estate, she may receive and hold such note. {Dillaye 
 V. Parks, 31 Barb. E. 132.) 
 
 § 468. By the provisions of the act of 1860 as it originally passed 
 and existed, until the amendment of 1862, no conveyance or con- 
 tract of the wife was valid without the assent in writing of her 
 husband, or leave of the county court. {Laws of 1860, ah. 90, §§ 3, 
 4, 5, 6.) This provision, while it existed, was held not to apply to 
 an act of the wife by which she merely created a charge or lien 
 upon her property. Thus, her contract to pay a debt, charging 
 the same upon her separate estate, did not need the assent of the 
 husband or the order of the court to render it valid. ( Ward v. 
 Servoss, 15 Aib. Pr. B. ^9.) These provisions of the act were 
 amended or repealed by the act of 1862. {Laws of 1862, ch. 172, 
 §§ 1, 2.) But until the amendment of 1862, they were in force, , 
 and no conveyance or contract executed by the wife during that 
 period was valid, except in accordance with the act. {Manchester 
 V. Sahler, 47 Barb. R. 155, 159. Townsley v. Oha^pin, 12 Allen's 
 R. 476. And vide Yale v. Dederer, 22 M. Y. R. 450, 460.) 
 
 § 469. Any married woman may, while married, sue and be sued 
 in all matters having relation to her sole and separate property, or 
 which may come to her by descent,' devise, purchase, or the gift or 
 grant of any person, in the same manner as if she were sole ; and 
 any married woman may bring and maintain an action in her own 
 name, for damages against any person or body corporate, for 
 any injury to her person or character, the same as if she were sole ; 
 and the money received upon the settlement of any such action or 
 recovered upon a judgment is made her sole and separate property. 
 And it is provided that in case it shall be necessary in the prose- 
 cution or defense of any action brought by or against a married 
 woman, to enter into any bond or undertaking, such bond or 
 undertaking may be executed by such married woman with the 
 same effect in all respects as if she were sole, and in case the said 
 bond or undertaking shall become broken or forfeited, the same 
 
656 LAW OF COVERTURE. 
 
 may be .enforised against her separate estate. {Laws of 1860, c7i 
 90, %\1,as amended ly Laws of 1862, ch. 172, 4 Stat, at Large, 
 516.) This ' statute has essentially changed the rights of the 
 husband and wife in respect to torts committed ilpon the person or 
 character of the wife, and has made her the sole -plaintiff in actions 
 brought for them, and given her the exclusive right to the damages 
 and recovery therefor', and has taken from the husband. all right to 
 or control over the damages in actions brought' for such injuries. 
 Assaults and batteries and slanders are now made a part of the 
 separate estate of the wife, and in respect to them she is as a feme- 
 sole,' and in actions to recover damages in such cases,- the husband 
 must not be joined with the wife as a co-plaintiff. {Mann v. 
 Marsh, 35 Barb. B. 68, 72.) , 
 
 § 470. Under the statutes relating to married women as they 
 now stand, the common law principle that a wife cannot take any 
 gift from her husband, except through the intervention of a 
 trustee, is abrogated. Therefore a married woman may maintain 
 an action for the loss of any valuable thing given to her by her 
 husband. The judge, in pronouncing' the opinion of the court 
 establishing this doctrine, said : " The act of 1848 merely provided 
 that the property of ' any woman who should thereafter marry 
 shoulcT'be 's'ubject to the disposal of her husband or liable for his 
 debts, and that the property of any woman thus married should be 
 likewise exempted from the disposal of the husband, except so far 
 as it may be liable for his debts theretofore contracted. In both 
 cases it was declared that her property should be sole and separate, 
 like that of a single woman, with the exception just mentioned. 
 The apt of 1849 extended this privilege by providing that any 
 married woman may take by inheritance, grant, devise, or bequest, 
 from any person other than her husband, and hold to her sole and 
 separate use, and dispose of the property ; and it was to be free 
 from the disposal of her husband, and' from the liability for his 
 debts. The act of 1860 {Laws of 1860, p. 157) still further extends 
 the privileges of married women; and in the seventh section it 
 allows a marr,3d woman to sue and be sued in the same manner 
 as a single wof-ian in all matters relating to her property which 
 she then possessed, or which may thereafter come to her by descent, 
 devise, bequest, or the gift of any person, except her husband. We 
 see that these several acts were all progressive, each successively 
 increasing the privileges of married women with regard to prop- 
 
MARITAL SIGST3 IN NEW YORK. 657 
 
 erty ; but they contain nothing ■vrhicli warrants the supposition 
 that a husband could make a gift to his wife that he could not 
 have made previous to 1848. The act of 1862 {Laws of 1862, p. 
 373), which is chiefly amendatory, amends the seventh section, to 
 which I have referred, of the act of 1860, by omitting the words 
 'except her husband' after the word 'person,' so that she may 
 sue and be sued in all matters having relation to any property 
 obtained froqi her husband, as well as from any other person. 
 When we consider the spirit by which this legislation was set in 
 motion, and the progressive character of these several enactipents, 
 I think that we may safely infer that the legislature intended, by 
 the act of 1862, to repeal the rule of the common law, that a gift 
 from a husband to a wife could not invest the property in her. 
 This rule, indeed, is not repealed by express words, but the seveiith 
 section of the act of 1860, as amended by . that of 1862, is 
 inconsistent with it, and the common law rule may therefore be 
 considered as impliedly repealed." (Rawson v. The Permsyl/oama 
 Railroad Company, 2 Abb. Pr. E. [iT. a?.] 220, 222, 223, Yide 
 also Scott V. Simes, 10 Bosw. B. 314.^ 
 
 § 471. Under the statutes of 1848 and 1849, an . mfimt feme- 
 covert may execute a deed of tfust of her real estate, and on 
 arriving at majority ma.y execute a deed of revocation of the trust, 
 and thereupon convey by deed absolutely such real estate without 
 joining her husband in either. Nor need her conveyance be 
 acknowledged in the manner required by the Revised Sjtatutes 
 respecting acknowledgments of mamed women. It would seem, 
 therefore, that under these statutes, a deed of trust by an infant 
 feme-Govert is unnecessary. The protection afforded by the law to 
 the property of a married female is quite as effectual as it can be 
 made by the contract of parties. The act for the protection of the 
 property of married women has worked a complete radical change 
 in the marital rights of husbands. Their old common law right to 
 the personal, and the' use of the real property is gone; and they 
 have no estate or interest, or right whatever, absolute or contin- 
 gent, except that upon the death of the wife, after issue bom, 
 without exercising the jus ddsponendi, he has, possibly, an estate 
 for life aa tenant l>y the curtesy. {MoIVodine y. Kadel,ZO How. 
 Pr. E. 193.) Indeed, it is the opinion of some judges, as we 
 have seen, that the acts " for the more effectual protection of the 
 rights of married women," have entirely swept away the common 
 S3 
 
658 LAW OF COVERTURE. 
 
 law right of the linsband to his tenancy by the curtesy ; but the 
 better opinion is that the estate of a tenant hy the curtesy has 
 survived these acts ; and vrhen the wife omits to exercise her right 
 of disposal of her property, real and personal, by deed or by will, 
 those acts are not intended to interfere with the laws of descent — 
 in respect to the real estate, or the laws giving the husband the 
 right of succession to the personalty. ( Vide Jay cox v. Collins, 
 26 Ebw. Pr. R. 496. Ransom v. Nichols, 22 N. T. R. 110.) 
 
 § 472. In equity, there is no difference between the separate 
 estate of a wife, created by operation 'of the statutes of 1848 and 
 1849, relating to married women, and a similar estate created by 
 deed or any other instrument. It has been said that if it be 
 considered that the effect of these statutes is to vest in her a legal 
 title, whereas, before, when her interest was acquired by means 
 of a settlement or deed, she had only an equitable estate, still, so 
 long as her contracts are affected by the disability of coverture, 
 the debts of the wife can only be enforced against her separate 
 estate, however acquired, by a specific charge of such debts upon 
 the separate estate, although the general legal disability to con- 
 tract remains, as at common law, a married woman may, as 
 incidental to the perfect right of property and power of disposition 
 which she takes under the statute, charge her estate for the 
 purposes and to the extent which the rule in equity has heretofore 
 sanctioned in reference to separate estates. But this charge against 
 her estate can only be enforced in a court of equity, upon the 
 principle that the engagements of a married woman ought to» be 
 enforced against her separate property, not as the execution of a 
 power, but as the exercise of a right of property to which is 
 necessarily incident the power of contracting debts to be paid out 
 of it. {jide Yale v. Dederer, 18 N..T. R. 265, 279. Owens v. 
 Dickinson, 1 Craig, and Phil. R. 48.) The effect of this reasoning, 
 however, has been considerably limited by the statute passed 
 since the case of Yale v. Pederer was decided, which provides 
 that a married woman may be sued in any of the courts in the 
 State, and whenever a judgment shall be recovered against a 
 married woman, the same may be enforced by execution against 
 her sole and separate estate in the same manner as if she were 
 sole. {Laws of 1863, ch. 172, § 7. 4 Stat, at Large, 517.) 
 
 § 473. When the wife conveys away a part of her real estate 
 owned in her own right, and takes back, in part payment of the 
 
MARITAL BIGHTS IN NEW YORK. 659 
 
 consideration thereof, bonds and mortgages of her grantee, ■which 
 she afterward sells and assigns by deed with a covenant of 
 guaranty by herself and husband, that the money payable thereby 
 is collectible ; in an action on such covenant of guaranty against 
 the husband and wife for breach of such covenant, in order to sus- 
 tain the action and charge the unpaid balance upon the separate 
 estate of the wife, it is incumbent upon the plaintiff to show, either 
 that there was an intention to charge such estate in the contract 
 of sale and guaranty by the wife, or that the consideration* obtained 
 upon the sale was for the direct benefit of her separate estate. 
 {White V. McNett, 33 N. Y. B. 371.) 
 
 An action by a judgment creditor to reach real estate conveyed 
 to the wife of his judgment debtor, a part of the consideration for 
 such conveyance being paid by the judgment debtor, who is alleged 
 to be insolvent, cannot be sustained, when the presumption of 
 fraud, which attaches by reason of the payment of such considera- 
 tion, is overcome by the evidence, and, therefore, in such a case, 
 evidence tending to show that the debt to the plaintiff' was con- 
 tracted by a partner of the judgment debtor, of which the latter 
 was ignorant at the time he paid the consideration money, and that 
 the plaintiff made no claim against him personally till after the con- 
 veyance to his wife, was held by the supreme court to be properly 
 admissible to show the want of a fraudulent intent on the part of 
 the husband and wife. {Ack&rman v. Sulmon, 31 How. Pr. It. 259.) 
 
 When a married woman having a separate estate and transact- 
 ing business on her own account, by her husband as her agentj 
 employs attorneys to commence suits upon accounts growing out 
 of the wife's business, the separate estate of the wife is liable for 
 such services rendered by the attorneys as are found to have been 
 for the benefit of the wife and her separate estate. If the suits and 
 proceedings were instituted for the purpose of benefiting the wife's 
 estate, the fact that they, or some of them, were unsuccessful, is 
 not of controlling importance, on the question of the liability of 
 her separate estate. The principle, in short, which now governs in ' 
 cases of this kind is, that a wife's separate estate is liable to pay 
 her debts during coverture, in whatever form they are incurred, 
 not because her contracts have any validity at law, nor by way of 
 appointment, or charge, but because equity decrees it to be just 
 that they should be paid out of her estate. {Owen v. Cawley, 42 
 Barb. B. 105.) 
 
660 LAW OF COVBRTURE. 
 
 § 474. Tlie statutes " for the more effectual protection of the 
 rights of married 'women," of 1848 and 1849, were not intended 
 to confer any greater authority upon them, to enter into contracts 
 generally, than previously existed, and did not remove their legal 
 incapacity to contract debts. [Neither were the provisions of the 
 act of 1860 intended to remove the common law disability of 
 married women to bind themselves by their contracts at large. To 
 be obligatory upon them under these statutes, the contract must 
 relate entirely to their separate estate, or the trade and business in 
 which they are engaged. The' act of 1860 enables a married 
 woman to carry on her trade and business, and to perform any 
 labor or service, on her sole and separate account; but it does not 
 extend her rights beyond the conduct of her business, so as to per- 
 mit her to make contracts without regard to her trade or business, 
 or her separate property. The act authorizes a feme-covertio carry 
 on any trade or business upon her own account, but with this 
 exception, the only contracts which it empowers her to make are 
 those which have a direct reference to her separate property. 
 {Manchester v, Sahler, 47 Bwrb. R. 155. Yide also Yale v. Dederer, 
 22 N. Y. R. 450, 462.) 
 
 Under the statutes as they now exist, a fenie-covert cannot bind 
 herself, or create a charge upon her separate estate, by a promise to 
 pay for nursing and taking care of her sick and infirjn father, when 
 she does not agree or indicate an intention to bind her separate 
 property. Nor is she liable in such a case, on the ground that under 
 the statute (1 R. 8. 614, § 1) she is bound to maintain her father, 
 when it appears that she did not assume to pay for that reason and 
 upon that consideration, and did not agree to bind her separate 
 estate. {Manchester v. Sahler, supra.) 
 
 In common law actions the name of no person should be in or 
 upon the record as a party except such as must have judgment 
 pass for or against them. Married women now sue and are suable 
 like unmarried women, and judgments are rendered for 'and against 
 them, and enforced in the same manner as for or against other per- 
 sons, under th6 statutes of 1860 and 1862. To reach the wife's 
 separate property now, she must be sued alone ; a judgment 
 against both husband and wife is really a judgment against the 
 husband at common law, and the execution in such judgment 
 goes only against the property of the husband. {Porter v. Mount, 
 45 Barb. R. 422.) 
 
MARITAL RIGHTS IN NEW YORK. 661 
 
 § 475. By tlie statute of 1860, a married woman has the right 
 to keep a boarding-house on her own account, and consequently to 
 employ servants to assist her in carrying on the business. It 
 follows, therefore, that for any injury to her servant, per qxioad 
 serviiium amisit, a right of action accrues to her, equally as if she 
 had been unmarried. This is a necessary incident to the right to 
 carry on business on her own account, and to employ servants 
 therein. And for such a cause of action a suit may doubtless be 
 maintained in her own name,; without , joining her husband with 
 her. Inasmuch as section two of the act of 1860 authorizes a 
 married woman to carry on any trade or business on her own 
 account, it must be conceded that. when in section seven of the 
 same act it provides that she may sue in all 'matters homing rela- , 
 tion to her property^ it intended to authorize her to bring all 
 actions necessary to protect her rights in carrying on such trade- or 
 business. The proceeds of her trade or business are specifically 
 declared to be her separate property, and any wrongful inter- 
 ference with her business, either by, enticing away her servants, or 
 otherwise depriving her of their services, whereby the proceeds of 
 her business are lessened, is a matter having relation to her prop- 
 erty. Such must haye been the, intent of the law-makers in using 
 that language ; especially when, considered in connection with the 
 latter part of the section, which gives to a married woman tho 
 right to bring actions for injuries to, their persons or characters. 
 A construction of the i language " all matters having relation to 
 her property," which, would ^xclud,e such a matter as' this, it. is 
 thought, does not comport at all with the spirit and intent of the 
 act. Upon this reasoning, it was held jih^t when a husband has 
 abandoned his wife and family, and resides- in au,other state, , the 
 wife, owning a house, and being engaged in the business of keep- 
 ing boarders, on her sole and separate account, may sue alone for 
 the seduction of her daughter, over twenty-one yeai;s of age,; who 
 resides with her, and perfornis services; for her about-: the house. 
 The law gives the wife, thus situated, an fjrctipfli ; against any one 
 who seduces and debauches her servant, if there is a loss of service 
 shown. Sudi acts directly a,ffect her legitimate business, which 
 the law allows her to carry on^ and have ' a dlpept ; relation to; the 
 earnings and; fruits of her business, and therefore, indirectly if 
 not directly, have relation to her separate property.; {Badgley v. 
 Jjlecker, U Bari. B. 577.) , , i 
 
662 LAW OF COVERTURE. 
 
 But a married woman cannot sue her husband in an action for 
 assault and battery, or for damages arising from slander or libel. 
 The right to sue her husband for such a cause may perhaps be 
 covered under the literal language of the act of 1860, which declares 
 that a married Avoman may bring actions to recover damages for 
 injuries to their person or character, against any person or body 
 corporate ; but it is thought that such was not the meaning and 
 inteht of the legislature, and that such should not be the construc- 
 tion given to the act, for the reason : 
 
 1. It is contrary, not only to the rule of the common law, but to 
 the spirit and intent of the married woman's acts the object of 
 which was to add to her property rights as a feme-sole, and to 
 distinguish her property from her husband's, and not to confer 
 rights of action upon her, against him. 
 
 2. It is contrary to the policy of the law, and destructive of 
 that conjugal union and tranquillity, which it has always been the 
 object of the law to guard and protect. 
 
 3. The effect of giving so broad a construction to the act of 1860 
 might be to involve the husband and wife in perpetual controversy 
 and litigation — to sow the seeds of perpetual domestic discord and 
 broil — ^to produce the most discordant and conflicting interest of 
 property between them, and to offer a bounty or temptation to 
 the wife to seek encroachment upon her husband's property, which 
 would not only be at war with domestic peace, but deprive her 
 probably of those testamentary dispositions by the husband, in her 
 favor, which he would otherwise be likely to make. 
 
 4. Under the acts of 18i8 and 1849, which are qnite compre- 
 hensive, the courts held that they did not remove the wife's common 
 law disability to contract, otherwise than as respected her separate 
 property. They therefore held her promissory notes, and executory 
 contracts invalid, evincing a disposition not to enlarge the acts in 
 question beyond their most plain and obvious scope, nor to remove 
 the disabilities of the common law, to any greater extent than was 
 required by the plain words of the statute. 
 
 6. The acts of 1860 and 1862 confer upon the wife the power to 
 sue. and be sued in rather broad terms, but not in a manner to lead 
 to the implication that the husband was intended to be permitted 
 to be sued by the wife for injuries to her person and character, as 
 in an action of assault and battery, or slander. On the contrary, 
 the provision of the act which declares that in actions brought or 
 
MARITAL RIGHTS IN NEW YORK. 663 
 
 defended by the wife, neither the husband or his property shall be 
 liable for the costs thereof, gives strong color to the presumption 
 that neither her bargains or contracts, or actions, which the law 
 intended to authorize, were bargains, contracts or actions with her 
 husband. {Longendyke v. Longendyhe^ 44 Barb. It. 366.) 
 
 § 476. "Whenever a husband has received or borrowed the prop- 
 erty of his wife under circumstances which in a court of equity 
 would be regarded as creating a debt to her, from him, and as 
 entitling her to be considered and treated as his creditor therefor, 
 he will be allowed to pay such debt from his property, in the same 
 manner and upon the same principles on which he would be 
 allowed to pay any other debt, to any other creditor ; and a pay- 
 ment to her or a transfer of property to her in consideration of 
 such debt, will not be regarded as a gift or a voluntary conveyance 
 of property in fraud of his creditors. Upon this principle it was 
 determined, that when the husband received from his wife's father 
 a conveyance of a piece of land upon the express understanding 
 that he might sell the land, and use the proceeds in his business, 
 and that at some future time he should pay or secure to his wife, 
 in her own right, the amount of such avails or proceeds, and the 
 husband did accordingly sell the land and use the proceeds, and 
 subsequently accounted and settled with his wife's agent in l-espect 
 to such proceeds, and gave his promissory notes therefor, payable 
 to such agent, and paid a part of the same, and ^preferred the 
 balance in an assignment afterward made by him for the benefit 
 of his creditors ; such settlement and assignment having been found 
 to have been made in good faith, and for the piu^pose of securing 
 to the wife the avails of the land, according to the verbal agree- 
 ment with her father, and without any intent to hinder, delay, or 
 defraud creditors, the husband had a right in equity to make such 
 settlement and assignment, and the same were valid as against his 
 creditors. (McOartney v. Welch, 44 Barb. R. 271.) 
 
 So also where a husbandj who was married prior to the married 
 woman's acts of 1848 and 1849, was indebted to his wife in a 
 certain sum for money arising from the sale of her separate real 
 estate, whicJi sum she had previous to those acts lent to him, he 
 agreeing to keep it for her and treat it as her separate property, 
 and repay it to her with interest, it was held by the supreme court, 
 one of the three judges dissenting, that equity would hold the 
 husband to be his wife's trustee for the amount, and allow him to 
 
664 I>AW OF COVMRTURE. 
 
 pay her the same, upon his becoming insolvent, in the same man« 
 ner that he might pay any other creditor. Bnt that to authorize 
 him to prefer his wife as a creditor, it was necessary that the money 
 in his hands should be held and regarded, as between them, at and 
 from the time of its receipt by him, as a loan from her ; and that 
 they should have constantly and intentionally treated the sum in 
 his hands as her separate property. And the doctrine was asserted 
 that courts of equity regard husband and wife as distinct persons, 
 andj allow them to contract with each other as though they were 
 unmarried persons, {Woodwm'th v. Sweet, 44 Barb. R. 468, 
 470,271.) 
 
 § 477. Under sections ,274 and 2&7 of the Code of Procedure as 
 amended in 1862, relative to actions ISgainst married women, it is 
 only the cause of action against or liability of a married woman 
 defendant, that is to be tried in the action against her. The deter- 
 mination of the mode of satisfying the amount recovered is post- 
 poned until the execution. ThS judgment thereby does Hot cease 
 to be in rem, but becomes nominally 'ki /personam, only to be 
 enforced agaiust a particular kind of property. The amendments 
 of the code referred to, do not do away with the necessity of 
 alleging in the complaint and showing the liability of a married 
 woman, for an act relating to her separate estate or trade, carried 
 on by her under the act of 1860, or generally whatever was neces- 
 sairy to show her liability. 
 
 The amendments of 1862 leave undetermined several important 
 questions : whether a married woman against whom a judgment 
 has been obtained may be subjected to supplementary proceedings 
 as Regards her separate property ; wh&ther, on a judgment against 
 a married woman for a tort, her separate estate may be levied on ; 
 whether she can give a confession of judgment, and whether a new 
 action can be commenced on a judgment against her for any cause, 
 so as to enable the plaintiff to make her separate property liable 
 on execution ; in other words, whether a married woman is to be 
 considered' in all respects as z, f erne-sole in regard to her liability 
 and the judgment in: an action against her, except as to the mode 
 of enforcing such judgment. 
 
 In all cases of a judgment against a married woman, it should 
 be expressly stated therein that the amount is " to be levied or col- 
 lected out of her separate estate and not otherwise," and the 
 execution should follotv the judgment in its terms. A mere abso- 
 
MARITAL SIGSTS Ilf NEW YORE. 665 
 
 lute, judgment in personam ,&^siii?,i a married woman, recovered 
 prior to 1862, i$ not suflficient to entitle the creditor to sue thereon, 
 and recovei: a judgment against her separate property. The 
 creditor in such action on the judgment must also establish, at 
 least, that the original cause of. action was s\ich as to entitle th& 
 plaintiff to a judgment ag'ainst her separate estate. Otherwise 
 the eflFect of the, amendments of 1863 would be, to allow the 
 plaintiff to reach property on the faith of which the original 
 liability never was incurred, which could not then have, been applied 
 to its' satisfaction, but which the legislature now by a species of 
 confiscation is presumed to apply for that purpose, thus stripping 
 every married woman in the state of heryested rights under any 
 deed of trust in her favor — an intention: not to be presumed, even 
 if the act itself were constitutional. {Baldkoin v. Kvmmel, 1 
 Bobinson^s B. 109.) - "^ 
 
 The statute which has been before referred to, and which, was in 
 force when Baldwin v. Kimmetl ^as decided, deelares.that " when 
 a judgment shall be recovered against a married woman the same 
 may be enforced by execution against her sole and separate estate 
 in the same manner as if she were sole." {'Laws of 1862, ch. 172, 
 § Y.) It would seem, therefore, that any. judgment against a. femer 
 covert xna.y now be enforced by the ordinary execution against her 
 separate property, irrespective of the cause for which it was entered. 
 {^Yide Sexton v. Fleet, 2 Hilton^s B. 483. . Walher y. Swazy, 3 
 Ahh.Pr. ^.136.) 
 
 § 4:1%, Previous to the statute of 1860, a married woman could 
 not purchase personal property in her own name, upon her own 
 personal credit, and hold it for her own uses, unless she had a 
 separate estate, and agreed or intended to charge it with the, pur- 
 chase price. Her services, talents and capacity for business and 
 credit all belonged to her husband. A purchase made by a married 
 woman under such circumstances, was regarded as a purchase by 
 the husband, and he was liable to the vendor for the purchase 
 price, provided the property came into his possession, or was used 
 by his wife with his knowledge or consent. ' {Glann v. Yomiqlove, 
 27 Barh. B. 480.) 
 
 So also previous to the statute of 1860, a marriied woman got no 
 
 title to her own earnings in her own right, for services performed 
 
 by her under an agreement that she should be paid therefor what 
 
 her services were reasonably worth, and the agreement was made 
 
 84 
 
LAW OF COVMRTUItE. 
 
 with the knowledge of the husband, and without any objection 
 on his part. In law the services of the wife belonged absolutely 
 to her husband, and the promise to pay her was in law a promise 
 to pay the husband and no one else. The common law controls 
 the relation and rights of husband and wife, except where those 
 rights have been modified or changed by statute, and there was no 
 statute in the State of ^New York giving a married woman the 
 right to perform labor or services on her sole and separate account, 
 until Mai'ch 20, 1860, before which her services and earnings 
 belonged to her husband. ( Woodbeck v. Jffav&ns, 42 Barb. B. 66.) 
 But since the act of 1860, married women may caiTy on business 
 on their own account, and purchase goods for and use them in 
 their business, and they may bind themselves to pay for goods 
 sold and delivered to them, and in default of payment according 
 to agreement, they may be sued for the purchase price, and a 
 recovery may be had against them, and such judgment may be 
 collected. Whether the business of the fenne-covert is profitable or 
 not, or will benefit or waste her property, is immaterial. She has 
 attained the dignity and possesses the capacity of every trader of 
 an age to make a valid contract, and must pay for her purchases, 
 or submit to a judgment if "sued. 
 
 So, too, if she leases a store or other place for a business con- 
 ducted by her on her separate account, and uses it for that purpose, 
 she must pay the stipulated . rent, whether the business be wise or 
 foolish, or likely to be profitable or ruinous. "When she buys on a 
 representation that the goods are to be used in her separate business, 
 or hires a store, representing that it is to be so used, a vendor or 
 lessor, in a suit to recover the price of his goods or the rent due, 
 must, however, allege that the one and the other were in fact 
 actually used in her separate business ; and if it should appear that 
 she did not in fact Use the goods purchased or the premises hired 
 in carrying on her separate business, possibly that could be set up 
 as a defense to the action. Probably it was not the design of the 
 statute of 1860 to relieve entirely married women from the disa- 
 bility of marriage in making contracts, and to make all their 
 contracts good ; otherwise it would not have been so. minute and 
 exact in its provisions. Parties dealing with them were doubtless 
 intended still to be required to use some caution in ascertaining 
 that a contract entered into by them was necessary and proper for 
 the carrying on of their trade or benefiting their estate. But 
 
MARITAL EIOBTS IN NEW YORK. 667 
 
 where the property is bought, or premises hired, for the purpose 
 of being used in her separate business, and are actually so used, 
 the wife must pay for the goods and for the use of the premises 
 hired. {Coster v. Isaacs, 1 Robertson^ s B. 176.) 
 
 So, also, where a married woman hires premises in her own 
 name, and pays the rent therefor, she has such an interest in the 
 premises hired, under the present statutes of the state, as will 
 enable her to maintain an action in her own name for trespasses 
 committed upon the property. By virtue of such hiring and pay 
 ment of rent, she is entitled to the possession of the premises 
 hired, and her possession cannot be lawfully disturbed until the 
 expiration of her term. {Fox v. Duff, 1 Daly's B. 196. Vide also 
 Darby v. Callaghan, 16 N. T. B. 71.) 
 
 § 479. We have seen that a wife cannot sue her husband for an 
 assault and battery {ante, § 475) ; and the court of common pleas 
 of the city of New York has also decided that a married woman 
 living apart from her husband cannot maintain an action of eject- 
 ment against her husband to remove him from premises belonging 
 to her as her separate property and in his possession. The judge 
 who delivered the prevailing opinion of the court said: "The 
 literal construction of the act of 1862 would authorize any pro- 
 ceeding by a wife against her husband that she could initiate 
 against any other person, and it may be that it was the intention 
 of the legislature to grant her the right suggested. She is author- 
 ized by section two of the act of 1860 to carry on any trade or 
 business, and perform any labor or services on her sole and separate 
 account, and her earnings are secured to. her as her sole and 
 separate property.' It may be that the legislature intended, by the 
 act referred to, to authorize a married woman to abandon her hus- 
 band, neglect her children, and, in disobedience to her husband, 
 engage in any pursuit in which she chose to invest her separate 
 estate or risk her credit. A literal reading of the statute would 
 lead to no other conclusion, and if such was the intention of the 
 legislature, it has inaugurated an element which strikes at the very 
 foundation of conjugal happiness, and which must ultimately pro- 
 duce great mischief. I do not believe the legislature designed to 
 establish any such authority. * * There is nothing in any of 
 the acts mentioned which shows an intention on the part of the 
 legislature so to invade the existing legal relation of husband and 
 wife as to authorize the latter to commence an action of this 
 
668 LAW OF COVERTURE. 
 
 character, against her husband, an action in form and by proof on 
 the trial presenting no other feature than a title to the premises. 
 * * * "When a -wife having a separate estate, of which she is 
 unjustly deprived by her husband, wholly ok partially, shall establish 
 by proper proofs her right to its absolute possession, then she must 
 be protected by the law, and her property restored. When she 
 becomes, an actor, it must be upon proper allegations and proof, 
 and not upon the mere abstract doctrine of title. * * * She 
 is not entitled, therefore, to the relief demanded upon the whole 
 law of the land." {Gould v. Gould, 29 How. Pr. M.Ul, 458, 
 459, 460.) 
 
 This case was regarded as an action of ejectment brought by 
 the wife against her husband, from whom she had voluntarily 
 separated ; and it will be observed that the court decided simply 
 that the action could not be maintained in the form in which it 
 was brought. It was expressly or impliedly admitted that facts 
 might exist which would entitle the wife to recover the possession 
 of her property from her husband ; but the impression seemed to 
 be that she must bring her action in equitnf. Undoubtedly an action 
 would be entertained in equity, brought by the wife directly against 
 her husband, to restrain him from inierfering with her separate 
 estate, and to obtain the control of it; and it is diflScult to conceive 
 of any good reason -vSrhy a wife should be turned out of court, and 
 denied relief against her husband, merely because the form of her 
 proceedings was le^l instead of equitable. Since, by the present 
 practice in Ifew York, the functions of the courts of common law and 
 the court of Chancery are united in the same court, and the distinc- 
 tions between an action at law and a suit in equity no longer exist, 
 certainly the reasoning of the judge who pronounced the prevail- 
 ing opinion in the case of Gould y., Gould, would be as pertinent 
 in the one form of proceeding as the other.' If there was any defect . 
 in the pleadings for want of propSif averments, of course it was in 
 the power of the cour.t to order an amendment. Besides, " mai'ried 
 women are not hereafter to be indebted to equity only for protec- 
 tion in the enjoyment of their separate estates. * * * They 
 hold them by a legal title, and have a legal right to dispose of 
 them. * * * There is no longer any foundation for the argu^ 
 ment that, as equity creates and protects these estates, equity has a 
 right to control them. Eules which have grown up under this 
 idea, which are regarded to some extent illusory, will be hereafter 
 
MAS.ITAL RiaSTS IN NEW YORK. 669 
 
 inappropriate." ( Tale v. Dederer, 22 iT. T. R. 450, 460.)' And 
 Judge Daly, in his dissenting opinion in Oould v. Gould, adds : 
 " She has no longer occasion for that protection which a court of 
 equity afforded, as the husband is now deprived of that right to or 
 that control over her property which he previously possessed ; and 
 as, where rights which did not before exist are conferred, the reme- 
 dies which are adequate to maintain and secure them are regarded 
 as conferred also, I can see no reason why a married woman should 
 not have that remedy in a matter relating to her separate propei'ty, 
 even as against her husband, which is best adapted and the most 
 adequate to enable her to enforce her rights. To that remedy she 
 is entitled, and it is altogether immaterial whether it be a legal or 
 an equitable one. Her rights are no longer dependent upon the 
 favor and protection of a court of equity^ but are founded upon 
 positive legislation, which has greatly enlarged them, and if a legal 
 remedy is the best adapted to" enforce a right eonfeifed upon her 
 by statute, I can see no reason why she should not have it even 
 against her husband." {Gould v. Gould, 29 JSow. Pr. Ji. 441, 
 468, 469.) " The question in an action is not whether the plaint- 
 iff has a legal or an equitable right, or the defendant a legal or an 
 equitable defense against the plaintiff's claim ; but whether, accord- 
 ing to the whole law of the land applicable to the case, the plaintiff 
 makes out the right which he seeks to establish, or the defendant 
 shows that the plaintiff ought not to have the relief sought for." 
 {Grary v. Goodman, 12 if. T. E. 266, 268.) 
 
 §480. Under the married woman's acts of 1848 and 1849, a 
 feme-covert may recover from her husband and his partner, her 
 personal property loaned by her to carry on the business of the 
 firm. The judge who decided the case said : " Nor am I prepared 
 to hold that a loan of money made by a wife under such circum- 
 stanqes, to a 'firm of which her husband is one of the partners, 
 cannot be recovered because they can make no contract. , On the 
 contrary, I think such a contract can be made, and if made, can 
 be enforced at any rate in an equitable proceeding, if not at law." 
 {Devin r. Devm, 17 Sow. Pr. R. 514, 515.) 
 
 A feme-covert is not liable upon her contract to pay for a supper 
 furnished on the occasion of her daughter's marriage, as that will 
 not be deemed a consideration going to the direct benefit of her 
 separate estate. Unless the consideration for her promise went 
 directly to the benefit of her separate estate, she must have done 
 
670 LAW OF COVERTURE. 
 
 enough to charge it at the time of the contracting the debt, or 
 there i3 no action against her, and her estate cannot be legally 
 charged with the debt. ( White v. Story, 43 Barb. R. 124, 129.) 
 
 A judgment recovered against husband and wife during covert- 
 ure, and for a cause of action accruing after marriage, will not 
 bind the separate estate of the wife. {Tiadale v. Jones, 38 Barl. 
 Ji. 523.) 
 
 A married woman, claiming the benefit of the married woman's 
 acts of 1848 and 1849, must show that she was a resident of the 
 state at a time and under such circumstances to entitle her to such 
 benefit. So held in a case where the wife, who was married in 
 Eussia in 1847, and came to this state nine years after, and, 
 in January, 1862, took a bill of sale of personal property from her 
 husband in consideration of money loaned by her to him while in 
 Eussia, which property was taken upon an execution against her 
 husband, and the action was brought by her to recover its value ; 
 and the court decided that the pretended transfer from the husband 
 to the wife, under the circimistances, was null and void. {Savage 
 V. O^mUl, 42 Barl. B. 374.) 
 
 § 481. Any person who may hold as trustee for any married 
 woman, any real or personal estate, or other property, under any 
 deed of conveyance or otherwise, oh the written request of such 
 married woman, accompanied by a certificate of a justice of the 
 supreme court that he has examined the condition and situation 
 of the property, and made due inquiry into the capacity of such 
 married woman to manage and control the same, may convey to 
 such married woman, by deed or otherwise, all or any portion 
 of such property, or the rents, issues or profits thereof, for her sole 
 and separate use and benefit. {Laws of 1849, ch. 375, § 2. 4 
 Stat, at Large, 514.) This enactment is in pursuance of the policy 
 inaugurated in 1848, for the more eifectual protection of the prop- 
 erty of married, women, and for extending their rights and powers 
 with respect to it. But as the law now stands, the provisions of 
 this statute will be very seldom brought into requisition, for the 
 legislature of the state has almost dispensed with the necessity of 
 marriage settlements, as it has left little to the husband but a con- 
 tingent and possible interest in one-third of his wife's real estate. 
 It has taken away the necessity of compelling settlements for the 
 maintenance of the wife, founded upon what was termed her 
 equity, as she has now during her marriage the sole right to the 
 
MAEITAL RIBHTS IN NEW TOSK, 671 
 
 use of her property, wliether r,eal or personal, and the effect of 
 these changes must be to dispense hereafter with ^ large portion 
 of that equitable jurisdiction in respect to a married woman's 
 property, or in enforcing what was equitable when property had 
 been derived through her, which was exercised for her protection 
 and benefit by courts of equity. Married women are now declared 
 to have a separate legal existence, and are supposed to be abun- 
 dantly' qualified to take care of their own interests and rights, 
 independent of their husbands ; and therefore the interposition of 
 trustees between them and their husbands is in theory unnecessary, 
 and trustees of their separate property will seldom be appointed. 
 
 § 4&2. It has been made lawful by statute for any married 
 woman, by herself and in her name, or in the name of any third 
 person with his assent as her trustee, to cause to be insured for her 
 sole use the life of her husband for any definite period or for the 
 term of his natural life ; and, in case of her surviving such period 
 or term, the sum, or net amount of the insurance, becoming due 
 and payable by the terms of the insurance, must be payable to her 
 and for her use, free from the claims of the representatives of the 
 husband or of any of his creditors ; but such exemption will not 
 apply when the amount of premium annually paid out of the funds 
 or property of the husband shall exceed three hundred dollars. 
 The amount of the insurance may be made payable in case of the 
 death of the wife before the period at which it becomes due, to 
 her husband or to his, her or their children, for their use, as shall 
 be provided in the policy of insurance and to their guardian, if 
 under age. ' {Laws of 1858, ch. 187, aa aTnended ly Laws qf 
 1866, cA. 656.) 
 
 The first act in respect to insurances for lives for the benefit of 
 married women, was passed by the legislature in 1840 {Laws of 
 1840, ch. 80), which was in principle the same as the present law. 
 Under the act of 1840, a married woman procured a policy of 
 insurance upon the life of her husband, in her own name and for 
 her sole use, making the. insurance money payable to her children 
 in case she should die before her husband ; subsequently both 
 husband and wife and their only child perished at sea, by the 
 same disaster, and probably at the same moment ; the late court 
 of chancery held that the act did not extend to the case, and that 
 the contract of insurance, in those circumstances, stood upon the 
 same footing as any other contract made by a fein6-oovert, in her 
 
672 ZAW OF COVEETURE. ' 
 
 own name, in the life-time, of her husband, and without the inter- 
 vention of a trustee. The decision of the chanceEor was based upon 
 the fact that there was no legal presumption from the evidence 
 that the daughter survived the mother, and further, that, inasmuch 
 as the husband and wife both perished together at sea, and there 
 was no evidence to' authorize a diflferent conclusion, it was pre- 
 sumed that the husband survived the wife/ {Moehring v. Mitehell, 
 1 £(M-h. Ch. R. 264.) ■ - 
 
 The surrogate of the city and county of New York decided, that 
 the policy of the law of the state in relation to life insui-ance, is 
 in favor of allowing the wife, either in her own name or through 
 the medium of a trustee, to insure her husband's life free- from the 
 claims of his representatives or his creditors. Therefore, in a case 
 ■where, an intestate before his decease had effected an insm-ance on 
 his life for $4:,000, subsequently surrendered the policy and took 
 out two new policies for $2,000 each, one of which he assigned in 
 consideration of $300, the assignee agreeing to pay the future 
 premiums, and on the assignor's decease to pay his widow $1,500, 
 and the other of which he assigned for the benefit of his wife,. the 
 assignee obligating himself to pay the premiums, the policies being 
 of little if any pecuniary .value at the time of the assignment, so 
 far as related to the premiums that had been paid, and the com- 
 pany with whom the insurance was effected were empowered by 
 their charter to insure the life of a husband for the benefit of his 
 wife, it was held that, the title being transferred, the legal repre- 
 sentatives of the husband and assignor could not recover on the 
 policies. {McCord v. Moyes, 3 Brad. R. 139.) 
 
 § 483. Such' are the statutory peculiarities of the State of New 
 York respecting hxisband and ^ife, and the position, powers, and 
 rights of married women, together with the construction which 
 has been given to the various enactments upon the subject, b'y 
 the judicial tribunals of the state. The statement, which is fall 
 and complete, bringing down the statutes and authorities to the 
 present time, necessarily occupies considerable space, but it is 
 thought that the exposition may be of service to the legal profes- 
 sion, not only in the State of New York, but in other states, where 
 a similar policy has been adopted. It will be seen that the reform 
 was inaugurated in the New York legislature, in 1848, but long 
 before this there was a strong sentiment that the wife was the 
 victim of legal oppression, from which she ought to be relieved, 
 
MABITAI, RIQBTS tlf MAINE. 673 
 
 and that the subject came prominently before the constitutional 
 convention of 1846, but failed to' become incorporated into the 
 new constitution by a close vote. 
 
 Previous to the enabling a,ct of 1848, the common la,w rule 
 with respect to married women prevailed in the state, by which 
 the personar property of a woman passed absolutely to her hus- 
 band upon her marriage, nor could she by her own labor or 
 service acquire any thing during its continuance, unless an express 
 agreement was entered into before marriage, or a;fter, by the inter- 
 position of trustees, authorizing her to carry on trade or business 
 on her own account. Her husband was entitled to the rents and 
 profits of her real estate, and .after her death, if there were issue 
 by ;the marriage, he had in it a life estate as tenant by the curtesy. 
 All this has been essentially changed by the legislation which ]ia&^ 
 occurred. The statutes have now taken away from the husband 
 any right to the personal iproperty which the wife has at the time e 
 of her marriage,: or to the rents, issues and profits of her real 
 estate during marriage; and she is allowed during coverture to 
 take real or personal property, and hold it to her sole and separate 
 use; to acquire property by trade, business, labor or service, 
 carried on or performed on her own account, and dispose of the 
 same, and to make bargains and contracts in rel^ion to such 
 property, in almost any mode knovm to the law or to the practice 
 of the commercial community ; and she may sue and be sued in all 
 matters having relation to her property, and may bring and main- 
 tain an action in her own name for damages against any person or 
 body corporate, for any injury to her person or character, the same 
 as if she were sole. In a word, the statutes have weU nigh 
 removed all of her disabilities by reason of coverture, and have 
 placed her upon substantially the same footing of a feme-sole. 
 
 CHAPTEE XXXIII. 
 
 BTATUTOET POLICY OF THE NEW ENGLAND STATES EELATQIG TO 
 MAEEIED VVOMEN AHD MAEITAL EIGHTS — LAWS OF MAINE — ^LAWS 
 
 OF NEW HAMPSniEE LAWS OF VEEMONT — ^JUDICIAL CONSTEUOTION 
 
 AND DECISIONS. 
 
 § 484. In the State of Maine, a married woman of any age may 
 own in her own right real and personal estate acquired by descent, 
 85 
 
674 LAW OF COVERTURE. 
 
 gift, or purchase, and may manage, sell, convey and devise the same 
 by will, as if sole, and without the joinder or assent of her husband ; 
 but real estate directly or indirectly conveyed to her by her hus- 
 band or paid for by him, or given or devised to her by his relatives, 
 cannot be conveyed by her without the joinder of her husband in 
 such conveyance. When payment was made for property conveyed 
 to her from the property of her husband, or it was conveyed by 
 him to her without a valuable consideration paid therefor, it may 
 be taken as the property of her husband to pay his debts contracted 
 before such purchase. The husband acquires no right to any prop- 
 erty of his wife by marriage ; but the wife may release to her hus- 
 band the right to control her property, or any part of it, and to 
 dispose of the income thereof for their mutual benefit, and may 
 in wiiting revoke the same. The wife may prosecute and defend 
 suits at law or in equity for the preservation and protection of her 
 property, as if unmarried, or may do it jointly with her husband. 
 Neither of them can be arrested on such writ or execution ; nor 
 can he alone maintain an action respecting his wife's property. 
 She may receive the wages of her personal labor not performed 
 for her own family, maintain an action therefor in her own 
 name, and hold them in her own right against her husband or any 
 other person. 
 
 When a married woman dies intestate, her property descends to 
 her heirs ; and administration and distribution may take place, as 
 if she had not been married. When the husband abandons his 
 wife or is confined in state prison, the supreme judicial court may 
 authorize her to make contracts, and any person holding personal 
 property to which the husband is entitled in her right, to pay or 
 deliver the same to her, for her disposal, and for which she may 
 make a valid discharge. All contracts lawfully made by the wife 
 by virtue, of such power are binding upon her and her husband, 
 and during such absence or confinement she may sue and be sued 
 thereon, and for all acts done by her; and execution may be 
 enforced against her, as if unmarried. 
 
 When a married woman comes from any other state or country, 
 and remains in the State of Maine, without living with her hus- 
 band, she may make contracts, dispose of property, sue and be 
 sued, as if unmarried. When her husband comes and claims his 
 marital rights, her contracts and suits will be aflected the same as 
 if they were tlien first married. {R. 8. 1857, ch. 61.) 
 
mABITAL RIGHTS IN MAINE. 675 
 
 § 485. The statutes respecting the rights and property of mal-ried 
 women were enacted in 1844, or since that time ; and the husband 
 has a life estate in the real property of the wife acquired prior to 
 the statute of 1844, which may be taken in execution for liis debts, 
 provided the mai-riage was celebrated before that date. Simul- 
 taneously with her acquisition of title to the estate, the rights of 
 her husband therein were perfected ; and their rights remain unaf- • 
 fected by the subsequent statutes securing to married women their 
 rights of property. The deed of a married woman of her real 
 estate acquired prior to the enactment of the statute of 1844 is 
 void if the husband did not join her in the conveyance. {Beale v. 
 Knowles, 45 Mavne H. 479.) And when the wife owned the 
 money for which she sued, in her own right, at the time of her 
 marriage in 1834, and it was never reduced to possession by her 
 husband during her coverture, but remained under her sole control, 
 the court held that the money became absolutely vested in the 
 husband at the time of his marriage, and, at his death, descended 
 to his heirs as a part of his estate, though he left his wife surviving 
 him as his widow, who then had the money under her own control. 
 {Jordan v. Jordcm, 52 Maine JS. 320.) 
 
 A feme-covert is not capable, under the statutes of Maine, to 
 bind herself by a promissory note, and such an instrument cannot 
 be legally enforced. And when she joins with her*husband in a 
 note for money loaned to him, and gives a mortgage of her real 
 estate as security for the payment of the note, the case is not 
 altered. It will then be considered that the money was borrowed 
 on the personal security of the husband, and the wife is not liable 
 for it. {Roach v. Jiandail, 45 Maine B. 438. Vide also Howe 
 V. Wildes, 34 ib. 556.) 
 
 The general rule of law 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 com- 
 plete 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. This has been held to be 
 the rule at common law, as has been before shown. The rights of 
 the parties in such a case, when the contract was made in 1856, 
 are not materially affected by the statutes of the state giving to 
 married women the power to hold and manage their property, and 
 
6t6 LAW OF OOVMBtUBE. 
 
 to enforce remedies in their own natnes when it has been injured. 
 {Ayer v. Warren-j 4:1 Maine B. 217.) ' 
 
 §486. Although the recent, statutes ^ relating to the rights of 
 married women neithter authorize them nor recognize thdr right to 
 mortgage their real Estate, yet it was manifestly not the intention 
 of the legislature thereby to rSstriet them in thes' exercise of that 
 right, wliich existed at common laW; and where the wife^ the hus- 
 band joining with her in the deed, eoAveyed her estate' in liieirtgage 
 to secure a debt of her husband, the mortgage was held to be 
 valid. (Eaton Y.Nason, 47 'Maine R. ] 32. Spihxer v. JBerey, Ih. 
 330.) More yet ; the courts now hold that, by the provisions of the 
 statutes of the state, a man-iod woman may execute a deed of 
 mortgage of her ' separate ' estate, which will be valid, ■ notwith- 
 standing her promissory notes secured thereby cannot, t'ji ldw,'be 
 enforced against her. Therefore, a ihortgage to secure the payment 
 of a smn of money may be U'pheld, although there is connected 
 with it no other obligation or contract of the mortgagor or of 
 any other person to pay the same. The court say, in their opinion, 
 that thejjower conferred upon married women by the statute, to 
 control, sell and convey their estate, real and personal, is full and 
 perfect. It cannot be mOrfe complete. They may,' under its pro- 
 visions, bind their estates as effectually as any other citizen. Thus 
 far the law extends the rights of women under coverture; and, 
 although they still remain under the common law disabilities as to 
 persona! contracts, yet, as a mortgage is simply a conditional con- 
 veyance of land, designed as security for the payment of money, 
 or performance of some other act, and to be void upoii payment or 
 performance, married women may mortgage their property in such 
 a way as fully to pass the title upon the mortgage being foreclosed. 
 (Brookings v. White, 49 Maine JS. 479. Vide also 'EumpKreys v. 
 Newman, 51 iJ>. 40.) 
 
 § 487. As the law now stands in Maine, the wife 'may deed her 
 lands directly td her husbar.d. {Allen v. Hooper, 50 Maine S. 
 371.) And a husband, although he be insolvent, may convey real 
 ^estate to his wife, in payment of a note given her by him, for 
 money of hers loaned him, if there be no intent to defraud or 
 delay creditors. {Eandall v. Sweet, 51 Maine R. 246.) And 
 where the creditors of the husband in any case would impeach the 
 title of the wife to any property conveyed to her, the burden is on 
 him to prove that it came to her directly or indirectly from her 
 
MABITAL RIBBTS IN ilAINE. 677 
 
 linsfeand, after. coverture, and fraudulently as to cy.'editors. {Wins- 
 low V. Gilbreth, 50 Maine i?. 90.) 
 
 A feme-covert may carry on business on her own accouiut, and 
 no action can be sustained against the husband for goods and chat- 
 tels furnished in the course of h^r business, even tliough a portiop, 
 of the proceeds go toward the support of her husband and family. 
 But where the purchases -and sales were made with his knowledge 
 and consent^ and lie participates in the profits of the business, 
 knowing them to be. such, and that she professed to act for him, 
 the court held that .the jury may infer that the purchases were 
 made on his credit, and he will be liable to pay the purchase price 
 of such goods. ; {Coljfy, v. Lamson, 39 Mavne- B. 119. Otmavd v. 
 /Swantan, lb. 125.) 
 
 §488. Under the present statutes of the state, the husband may 
 lawfully transfer a promissory note to his wife, although. the maker 
 is at the time his creditor. To defeat such , a transfer, inadequacy 
 of consideration is not;Sufficient, There must be an m,^i3n^ also to 
 defraud existing creditors. But inadequacy of consideration ia 
 proper to be submitted, to the jui-y for the sole purpose of ascer- 
 taining the intent of the 'parties. The common law rulfe which 
 makes such a transfer from husband tp; wife absolutely void, has 
 been changed by the statute,'and now the same may be sustained. 
 (Motley V. Sawyer, 38 _Mat/>j,e li, 68. An.d mdeJ^oms v. Herriioh, 
 37 i5. 397.) '■ 
 
 Although by the. statitte.a.naarried woman may beconie the 
 owner of real or personal property by . bequest, devise, gift, pur- 
 chase or distributionj in order to become the owner by purchase, 
 she must make it from iier own property, ; or that of, others, by 
 their consent, for her use; The earnings of a feme-covert are still 
 the property of her husband, and a purchase^ made on the credit 
 or from the means of her hupband, or by. the avails of her labor, 
 gives the wife no piroperty in the article purchased. .{M^rrill.v. 
 Smith, 37 Mairne. R. 394,) But under the act of 1844, chapter 
 117, amended. by the act of 1S47, chapter 2^7, a woman, during 
 coverture,, may acquire property by purchase; in her own exclusive 
 right ; and in. property thus acquired, and paid for with, her money, 
 though the husband was the agent employed by .hei' in making 
 the", purchase, he.has no iriight of possession, and can maintain 
 no action for taking it away against personsliactirig under her 
 direction. iX&MjSAa/-^ v. P*per, 36 Jfaiwe .ff. 84.) - . '. . 
 
678 ZAW OF Coverture. 
 
 § 489. By the statute of 1847 amending the act of 1844, to 
 secure to married women their rights in property, a subsequent con- 
 veyance of land by a husband directly to his'wife is made effectual 
 to pass the title, unless the creditors may be thereby defrauded. 
 {Johnson v. Stillings, 35 Maine JR. 427.) 
 
 A married woman may maintain a suit in her own name alone, 
 to recover possession of land belonging to her. She may convey 
 her land by a deed executed jointly by herself and husband for 
 that purpose ; and a deed so executed is not entirely void as to the 
 wife, though executed .when she was imder the age of twenty-one 
 years. She may, however, avoid it after coming of age by bring- 
 ing her suit for the land ; although the tenant in such suit claiming 
 under such a deed will not be accountable for any rents or profits 
 which accrued prior to notice that the wife intended to avoid the 
 deed. ( Webi v. Sail, 35 Maine E. 336.) 
 
 The life estate which the husband had in his wife's land at com- 
 mon law has been taken from him by the act of 1844, in behalf of 
 the wife ; only upon condition, however, that she proved the title 
 not to have come to her from the husband after coverture. This 
 act of 1844, and the amendatory act of 1847, and the additional act 
 of 1848, respecting the rights of married women, were prospective 
 only in their operation. {Eldridge v. Preble, 34 Maine R. 148. 
 ClarTc v. Viles, 32 ib. 32. GreenUaf v. Hill, 31 ib. 562. McLellan 
 V. Nelson, 27 ib. 129.) 
 
 § 490. The statutes enlarging the rights of married women as 
 to property do not extend to rights of action for tort ; therefore, to 
 recover for an injury sustained by a married woman through the 
 malpractice of a surgeon, the husband must be a party to the suit. 
 The previous desertion of the wife by the husband does not remove 
 the necessity that, in such a suit, he should join as co-plaintiff; and 
 a discharge of the cause of action, given by such husband to the 
 defendant, is a bar to such a suit, when brought in the joint names 
 of the husband and wife. {BuUard v. Ev^seU, 33 Maine B. 196.) 
 
 The statute of 1844 securing to married women their property 
 did not so alter the common law as to enable a feme-covert to sell 
 her personal property without the assent of her husband. {Swift 
 V. Luce, 27 Maine R. 285.) 
 
 The foregoing are substantially the distinctive features of the 
 statutes and judicial decisions respecting marital rights in the 
 State of Maine, and more especially of the policy of the state, 
 
MARITAL RIQHTS IN NEW BAMPSBIBM. 679 
 
 concerning tlie rights, powers and liabilities of married ■women. 
 Some of the provisions of the statute upon the subject are copied 
 in substance from the statutes of Massachusetts, which will be 
 noticed hereafter. 
 
 § 491. Irrthe State of New Hampshire, it is provided by statute 
 that every married woman shall hold to her use, free from the 
 interference or control of her husband, all property inherited by, 
 bequeathed, given or conveyed to her, provided such conveyance, 
 gift or bequest is not occasioned by payment or pledge of the 
 property of the husband ; and any married woman holding prop- 
 erty to her sole and separate use, free from the interference or 
 control of her husband, may sue and be sued in her own name, as 
 though sole, in all matters pertaining to such property, and upon 
 all debts contracted by her before marriage. {Laws of 1860, ch. 
 2342.) And with respect to all such property, a married woman 
 has the same rights, and possesses and is entitled to the same 
 remedies, in her own name, both at law and in equity, and she is 
 made liable to be sued at law and in equity, upon any contract by 
 her made, or any wrong by her done, in respect to such property, 
 in the same manner and with the same effect as if she were 
 unmarried. {Comp. Stat. 382.) 
 
 It is further provided by statute, that after three months of 
 desertion, or of any other thing, which, if longer continued, will 
 be a cause of divorce, the wife may hold in. her several right, and 
 dispose of property acquired by her in any way, and the earnings 
 of the minor children, until the desertion ceases. And the judge of 
 probate in the county where she resides has power to make pro- 
 vision for her and her children from the property of the husband, 
 whereupon she will possess the same rights, and her property will 
 descend, the same as if she were single. {Comp. Stat, of 1853, 
 ch. 158.) 
 
 There is another provision of the statute of 1860, which 
 empowers the supreme judicial court to assign to the wife such 
 part of the real, personal or mixed estate of her husband as may 
 be deemed just and expedient, in cases where the husband is 
 insane, or has joined any religious society which professes to 
 believe the relation of husband and wife unlawful ; and the estate 
 so assigned to the wife may be held by her to her sole and separate 
 use so long as such husband shall continue insane, or connected 
 with such religious society. {Laws of 1860, ch. 2342, § 2.) 
 
680 LAW OF COVJSBTaSE. 
 
 A. feme-covert may make a will of the property whicli she holds 
 in her own right, and such will passes the property devised to any 
 devisee except the husband, although she cannot make a will to 
 affect the husband's tenancy by the curtesy. (Iio/ws.of 1854, ch. 
 1522. Laws of 1860, ch. 2342, § 3.) * 
 
 § 492. Under the statute of 1846, the courts have held that a 
 larried woman can contract only in respect to property conveyed 
 to her sole and separate use, free from the control and interference 
 of hor husband. She cannot contract in anticipation of any such 
 purchase to her sole use. And no action can be maintained against 
 a married woman upon a note or obligation given by her for money 
 hired as the purchase-money of land to be conveyed to her sole 
 and separate use, though it appears the money was in fact so 
 applied. The judge who delivered the . opinion of the court 
 remarked: "Considering the great changes which have been 
 making from year to year in relation to the rights of married 
 women, which have steadily tended to release to them their rights 
 of property, and their free agency in relation to its control and 
 management, the court are not disposed to adopt a narrow con- 
 struction of the statutes on this subject ; but they are, at the same 
 time, painfully aware that whenever the line may be drawn, it will 
 be long before the public will understand and recognize the point 
 where the power of a married woman to bind herself by her 
 bai'gains ceases, and that frauds upon the thoughtless and incon- 
 siderate must often occur." After reviewing several eases, the 
 learned judge adds : "And the principles thus settled are approved 
 by the coutt hete, and must govern this case. They go to the 
 extent that the poNver of the married woman to bind herself by 
 her contract, under this statute, and, as we incline to think, under 
 the statute of 1860, eiists only in cases where she was, at the time 
 of making the same, entitled to hold separate property to her own 
 use, and where the contract relates to that property. From this 
 view it results that she can make no contract, for money or prop- 
 erty, in anticipation of the purbhase of such separate estate; and 
 consequeiitly the note on which this action is founded, being given 
 for money hired for the purpose of buying such property, vras 
 unauthorized by the act, and is not binding on the defendant." 
 {Ames V. I^osUr, 42 iV. K H. 381, 383, 385.) 
 
 Whether the statute of 1860 applies to property owned by a 
 woman before her inarriage, seems to be in some doiibt. The 
 
MARITAL RI0BT8 IN NEW EAMFSHIRE. 681 
 
 judge, in giving the opinion of the court, said : " It may be doubt- 
 ful whether the statute of 1860 does not mean simply this, that 
 •when any property shall be inherited by, bequeathed, given or con- 
 veyed to, any married woman, she shall hold the same to her own 
 use, etc. ; that is, that it relates to property only which shall thus 
 come to the wife after marriage." {PetUngill v. Buttfirfield, 45 W. 
 J?. ^. 195, 199.) 
 
 § 493. When land was purchased in 1855, and conyeyed to the 
 wife in the ordinary form, and not to .her sole and separate use, a 
 note and mortgage given by her as security for the price, ihave no 
 legal validity whatever, In such , case, if; the. conveyance was 
 assented to by the husband, and he acquired and claimed an 
 interest in the land by it, a court of equity, on proof of a demand 
 and refusal, will decree that the. husband' and wife make a valid 
 mortgage to secure the payment of the, pi-ice. {Leach v. Woyes, 
 45 if. J3". ^. 364.) 
 
 So, when a wife, haying a separate income, purchased solely 
 upon her own credit suita.ble fuijniture for a, house held for; her by 
 trustees, and occupied by herself and her husband, and subsequently 
 died, having bequeathed the furniture to her husband,; it was held 
 that the vendor, who had thus sold the furniture to her with 
 knowledge of the facts, xjould not recover for it pf the husband in 
 assimapsit. {Hillv.Qoo^ich^i;&]!f.I£.Ii.^l.) 
 
 So it has been held that a married woman is not bound by a 
 promissory note given during coverture, although at the time, of 
 her marriage she had, by inheritance,, both r^al ,and personal 
 estate, unless it- be shown that such estate ,was held to her sole, and 
 separate use,, and that thepromise was made in respect to tha't 
 estate/ {Shannon v. Canney, 44 -ZT. -S. H. 592.) , 
 
 §494. Bythe ata-tute it is provided, that " any devise, conveyance, 
 or bequest of iproperty, real, personal, or, mixed, may be made to 
 any, married woman,. to be held, by hpr without the intervention of 
 a trustee, to her sole. and separate use,' free from 'the interference pr 
 control of her husband ; and shp shall hold, possess and enjoy the 
 estate so given, devised, conveyed or bequeathed accordingly ; ajid 
 shall iu like manner hold any property wfaicji she.may receive under 
 the, provisions of any deed oi' trust ma,de either beforje or after mar- 
 riage." It is further enacted by the statute, that in case . any such 
 married woman "shall difi intestate, all her right, and interest in 
 thcr personal property thus held, shall vest ia her hu^baad,' unless 
 86 
 
682 LAW OF COVERTURE. 
 
 other provision is made in relation thereto by the terms of the con- 
 tracts or conveyances " by which she holds the property ; and that 
 the husband shall be entitled to his estate by the curtesy, in all 
 lands and tenements so held by her. The husband, however, is 
 required to take administration on the estate of his wife, and hold 
 all the property, except the right by curtesy, subject to her debts. 
 {Laws of 1846, ch. 327, §§ 2, 17. Comjp. Laws, ch. 158, §§ 12, 29.) 
 
 As the statutes now stand, it has been held that a mai'ried 
 woman holding real estate to her sole and separate use, possesses 
 the same rights and powers, and is entitled to the same remedies at 
 law and in equity, in respect to such property, as if she were sole and 
 unmarried ; and that she may rent or lease the same to her husband 
 or any other person. {Albm v. Lord, 39 JV. H. R. 196.) But 
 under the statutes, a feme-covert cannot contract and be liable for 
 debts generally, so as to subject her separate property to their pay- 
 ment, but her contracts to be valid, must be confined to and con- 
 nected with the property itself ; her liabilities are, first, contracts 
 made in regard to the property itself; secondly, wrongs connected 
 with the property; and, thirdly, contracts made by and causes of 
 action existing against her while sole before her marriage. {Bailey 
 V. Pearson, 29 N. R. E. 77.) 
 
 § 495. The personal services and earnings of the wife and the 
 profits and income of any business in which she may engage, under 
 the statutes relating to the rights of married women, belong to the 
 husband, and cannot be held by the wife to her sole and separate 
 use. {Hoyt v. White, 46 iT. H. E. 45.) 
 
 A chattel purchased by a married woman with property held by 
 her to her separate use, under the statute of 1846, or with the 
 proceeds or income of such property, when the husband has not 
 attempted to exercise any ownership over such proceeds or income, 
 and has not in any way made claim to such chattel, is her property, 
 and is not liable to be taken on execution for his debts. In such a 
 case it has been held that the husband may act as agent for his 
 wife in making the purchase. {Hutchins v. Colby, 43 If, IT. R. 
 159.) 
 
 When a husband purchases land and the deed is taken to his 
 wife, prima facie, no trust results in his favor. And when money 
 raised by a mortgage of the wife's land is held by her, and the 
 husband has not assumed the mortgage debt, or attempted to con- 
 trol the money borrowed, she is not liable in a foreign attachment 
 
MARITAL RIOSTS IN NEW HAMPSEIRE. 683 
 
 as tnistee for her husband on account of such money. {Dioldnson 
 V. Davis, 43 N. H. B. 647.) 
 
 When a deed of the wife's land purports to be the conveyance 
 of the wife alone, and contains no recital that the husband is a 
 party, but is executed by the husband and wife, it is the deed of 
 both, and passes the title of both. ( Woodward v. Seamer, 38 iV. 
 H. R. 29.) 
 
 When real estate is conveyed to the wife, no trust arises to the 
 husband from payments made after the time of the purchase. 
 {Francestown v. Deering, 41 'JV. H. R. 438.) 
 
 When bank stock was transferred to the wife on the fifth day of 
 July, 1860, the court held that the husband's marital right to 
 reduce it to possession was not affected by the act of July 4, 1860, 
 as that act did not take effect until August of that year, and there- 
 fore that the husband's interest on the stock was to be determined 
 by the rules of the common law; and when in such case the 
 husband survived the wife, and afterward died without having 
 reduced the stock into possession, it was held that the administrator 
 of the wife, who owed no debts, could not maintain an action for 
 this stock, against the husband's representative ; and it was further 
 held that on the death of the wife the husband was entitled abso- 
 lutely to the stock, subject only to her debts, and that on his sub- 
 sequent death this interest vested in his representative. [Atherton, 
 Admr. v. McQueston, 6 Am. Loajo Reg. \_JSr. 8.1 250. S. C. 46 iV. 
 E. R. 205.) 
 
 § 496. By the statutes of New Hampshire, a homestead to the 
 value of $500, is exempt from attachment and execution and is in 
 no way liable for the husband's debts, nor subject to distribution or 
 devise, while a widow or a minor child lives thereon. But the 
 right may be waived by the deed of the husband and wife, and is 
 not valid against a claim on note or mortgage of husband and wife, 
 or for labor less than $100, or a lien by the seller of the estate for 
 its price, or a debt contracted for the erection of the buildings, or 
 for taxes. {Camp. Stat. ch. 196, and vide Laws of 1866, ch. 4252.) 
 
 Under this statute the courts hold that a widow is entitled to 
 dower and homestead in an equity of redemption in real estate of 
 her late husband against all persons, except the mortgagee or those 
 claiming under him. But she cannot have dower or homestead as 
 against the mortgagee, except by payment of the whole mortgage 
 debt ; against any and every one having an interest in the redemp- 
 
684 LAW OF COVERTURE. 
 
 tion, and who has actually redeemed the mortgage. She can hold 
 her dower and homestead upon payment of contribution. If the 
 administrator of the husband redeems the mortgage from assets of 
 the estate, then the widow takes dower and homestead without 
 contribution. After the decease of the mortgagee, if the equity 
 of redemption is purchased by t^he mortgagor, the two estates, 
 under the mortgage and the equity of redemption, become mferged, 
 as though some third person had; purchased the equity and then 
 redeemed the mortgage ; and in such case the widow may hold her 
 dower and homestead discharged. from the mortgage by contribution 
 only. In such case, it is immaterial whether the dower and home- 
 stead, or either of them, be first assigned or the equity be first sold, 
 since the owners of these interests, in either case, stand on the same 
 ground in equity, their separate estates commencing, not from the 
 time of the assignment or sale, but from the death of the intestate ; 
 hence the mortgage debt is to be shared between the owner of the 
 equity of redemption and the widow having dower and homestead, 
 according to the relative value of the proportion of mortgaged 
 property held by each, {Norris y, Morrison,.. b Am. Law Reg. 
 \N. ^.] 7Q0, 701. 8. a 45 If. H. R. 490.) This homestead pro- 
 vision is a policy somewhat peculiar to New Hampshire, and some 
 of the other !tfew England States. If a creditor, whose debt accrued 
 before the passage of the act, present his claim to the commissioner 
 on an insolvent estate, tates his dividend, and without objection 
 allow the widow's homestead to be assigned by the probate court ; 
 and the administrator, for the payment of the debts allowed, sells 
 the land assigned subject to the widow's homestead, such' creditor 
 cannot afterward require the administrator to sell any interest of 
 the estate in the land assigned for homestead to pay the balance 
 of his debt ; in such case, if a creditor would enforce his claim 
 aga,iiist the.widow!s right of homestead, h^ should object to the 
 ajssignment till his debt is paid. {Judge of Probate v. Simondsjd 
 Am. Law Reg.\N.. xS.] 317, 318.- S. C. 45 N. S. B. 363.) 
 
 In New Hampshire, a negotiable note given to a third party 
 by a husband before his marriage, is not extinguished by the mere 
 fact of its purchase fi-om such third party, by the wife, after mar- 
 riage, with money l}elongiug to her before marriage, not reduced 
 to possession by the husband ; and in case of such purchase by the 
 wife, the note may be transferred by her with her husband's assent, 
 and the purchaser may raaintaip an action upon it against the hug- 
 
MARITAL BiaSTS IN VERMONT. 685 
 
 ■band. {Russ v. Oeorge, 6 Am. Law Reg. \_W. 8^^ 700. 8. C. 45 
 N.E.R.m.) . , 
 
 § 497. In the State of Vermont, when any married man shall 
 leave the state, abandoning his wife,' and not making sufficient 
 ■provision for her maintenance, such -wife, if of the age of eighteen 
 years, maybe authorized by the supreme court, to s^ and convey 
 her real estate, or any part thereof, and also any personal estate which 
 may have come to the husband by reason' of the marriage, and 
 which may remain within the state undisposed of by him; 'and the 
 court may also in such case authorize the wife to receive any money 
 or other personal property, to which the husband is entitled in her 
 right, and to give a discharge for the same. The wife, in such 
 case, daring the absence of her husba,nd, is entitled' to the proceeds 
 of her own earnings, and of her minor children, and the same are 
 to be under her sole control, and are not liable for the debts of the 
 husband. All the proceeds of the sales authorised to be made by 
 the wife, and all other money and personal estate coming into the 
 hands of the wife as above provided, may be used and disposed 
 of by her, dm-ing the absence of her husband, foi* the necessai''y 
 support of herself and family. 
 
 When the real estate of the wife is taken for a public use, or for 
 a railroad, turnpike or way, or may be damaged by reason of 
 the taking thereof, the damages or compensation awarded may be 
 so invested and disposed of as to secure to her the same right, use 
 and benefit of and in the sum so awarded, and the income thereof 
 as if it had not been so taken or damaged. 
 
 "When any married man is confined in the state prison, his wife 
 is deemed a y^OTe-sofe, and is given the same remedy by statute as 
 when the husband absconds, as above provided ; and the real estate 
 of any married woman who livCs apart from her husband, by reason 
 of the criminal conduct or ill-usage of her husband may be ordered 
 and decreed by the chancellor to her sole use and benefit, or such 
 part thereof as he may think reasonable, may be decreed to her 
 sole use. Married women may devise, by last will and testament, 
 their lands, tenements and hereditaments, or any interest therein 
 descendible to their heirs. 
 
 The statute further provides that the rents, issues and products 
 of the real estate of the wife, and all moneys and obligations arising 
 from the sale of such real estate, shall be exempt from attachment 
 for her husband's debts ; and no conveyance made by the husband 
 
686 LAW OF COVERTURE. 
 
 during coverture of tlie same, or of interest in such real estate, will 
 be valid unless it be by the joint deed of the husband and wife ; and 
 all property consisting of stocks or bonds given a married woman 
 by her parents or parent, is exempt from her husband's debts, and 
 may be disposed of by her as if unmarried. 
 
 A feme-covfirt may cause the insurance of the life of her husband 
 for her own use and benefit, and the policy will inure to the benefit 
 of herself and cliildren. These are substantially the provisions 
 of the statutes of Yermont in respect to the rights and powers of 
 married women. {Gen. Stat. 1863, ch. Tl.) 
 
 There is also a provision of the statute securing to the husband 
 and wife a substantial homestead, which upon the death of the 
 husband vests In the widow and children, without being subject to 
 the payment of the debts of the deceased, unless the same was 
 legally discharged during the life of the husband. The homestead 
 cannot be conveyed by the owner unless the wife joins in the con- 
 veyance. {Gen. Stat. 1863, ch. 68.) 
 
 § 498. The statutes of the state declare that a husband and wife 
 may, by their joint deed, convey the real estate of the wife in like 
 manner as she might do by her separate deed if she were unmar- 
 ried ; and in case of desertion or ill-treatment of the wife by the 
 husband, the wife may make disposition of her property without 
 the husband's joining in the deed or conveyance. {Gen. Stat. ch. 65, 
 § 2, and ch. 71, § L) The first of these enactments does not declare 
 the sole deed of the wife void, nor does it imply that it is, except 
 as resulting from the effect of coverture, at common law. It has 
 regard only to the effect of that relation at common law, and was 
 designed to provide a mode by which the wife might transfer the 
 title to her real estate at law, notwithstanding the common law 
 effect of coverture. It is an enabling and not a disabling or restrict- 
 ive act, and can by no means be regarded as trenching upon the 
 scope of equitable jurisdiction and interposition in reference to 
 the rights, liabilities, and duties of married women in respect 
 to their property and contracts. The latter of said statutory pro- 
 visions, as judicially interpreted, was designed to give not an 
 exclusive, but an additional and somewhat summary means as 
 against the husband, for insuring to the wife the use and benefit 
 of her own property for her support in case she should be aban- 
 doned by, or compelled by ill-treatment to live apart from him. 
 They cannot, upon any ground of reason, be construed as taking 
 
MARITAL JXieSTS IN VERMONT. Q?i''i 
 
 away or curtailing the scope of interposition by courts of equity in 
 cases falling within the ordinary cognizance of such courts. Upon 
 this reasoning, it has been held that a married woman contracting 
 a debt for her own benefit, may make it an express charge on her 
 separate estate, and her mortgage for that purpose will be upheld 
 in equity. The court farther held in the same case, that a husband 
 may by his acts, as well as by express agreement, divest himself of 
 his marital rights in property so as to make it her separate estate. 
 
 In the year 1847, a wife left her husband, and, in 1853, property 
 was devised to her, which she occupied and controlled ever after, 
 without any interference of her husband. In 1857, she made a 
 mortgage upon her estate to secure payment of a debt for necessa- 
 ries for the support of herself and children, and in 1858 she 
 obtained a divorce and made a second mortgage on the same prop- 
 erty. The court held that although as between luisband and wife 
 the devise to her lacked the affirmative words necessary to consti- 
 tute a separate estate in the strict meaning of the terms, yet under 
 the circumstances it was to be considered .her separate estate as 
 between her and the first mortgagee, and the court declared that 
 the first mortgage might also be supported in equity on the prin- 
 ciple that when a married woman trades as a feme-sole, or obtains 
 credit on her separate estate, a court of equity will hold the pro- 
 ceeds of the business or the estate subject to the claims of her 
 creditors ; or on the principle that the estate of a married woman 
 living apart from her husband is liable for her maintenance. The 
 second mortgage having been taken with notice of the circumstances 
 of the first, was held to have no equity to come in before that. 
 {Frary v. Booth, 4 Am. Law Beg. [iT. s'.} 142. 8. G. 37 Yt. B. 78.) 
 
 A mortgage given by the wife to secure the payfaent of money 
 borrowed to pay toward the purchase of the mortgaged property, 
 was held by the court to be valid against the husband and the 
 children, the wife having deceased. {Buchancm v. Ghamberlin, 
 referred to in Frary v. Booth, supra.) And in a still later case, 
 the court held that an agreement made between husband and wife 
 during coverture, that certain personal- property or funds belong- 
 ing to him shall become her separate property, will be enforced in 
 equity, if it is so far carried into effect as to separate the property 
 or fund from the residue of the husband's estate, and place it in the 
 name and exclusive control of the wife. {Cordell v. Ryder, 4 Am, 
 LoAJo Beg. [Iff. S.] 66. S. O. 35 Vt. B. 47.) 
 
LAW OF GOVBETXmB. 
 
 § 499. The mere fact that a husband signed a note with hig 
 wife, given for money to -pay' in part for laiid deeded to the wife, 
 when it does not appear that any reliance was, or could be placed 
 upon his ^paiying it, and the note was secured whblly by inortgaga 
 of her knds, and those of her relations, is held by the court, not 
 enough to shoAvthat the husband had any real or equitable interest 
 in the premises that could be taken by his creditors. {Bwh v. 
 Gilson,Z1Yt.B.QZZ.). ' 
 
 If a husband improve his wife's land without any agreement 
 with her through trustees or otherwise, that his labor and money 
 expended thereon shall vest in him any interest thereiuj or entitle 
 him to any claim against or cdniperisation from her propertyj h& 
 gains no right or title thereto which his creditors can reach by 
 attachment or by the aid of a court of equity; ( Webster v. Hil- 
 drei/i, 33 Vt. R. 457.) 
 
 Since the passage of the married woman's act of 1847, a husband 
 has not, during his wife's life, an interest subject to attachment by 
 his creditors, in the betterments made by him upon her land, 
 by way of cultivation, or buildings in the ordinary ciourse of 
 occupancy, husbandry and improvement, or in the rent of such 
 liands when leased under such improvements to a third part" 
 ( White V. midreth, 32 Vt. R. 265.) 
 
 But it has been held that, by the language of the married 
 womaft's act, the annual product of the wife's land is not exempted 
 from the husband's control, or from his creditors. In giving the 
 opinion of the court, Redfield, Gh. J. observed : " In regard to 
 the effect of the statute, which is similar to those of the other 
 American States, there seems to havfe been, to some extent, a 
 popular impression that it would exempt the annual products of 
 the wife's lands from the control of the husband or his creditors. 
 Such was the decision of the court below, and such the impression 
 of one member of this court, at the first argument. But a care- 
 ful examination of the terms of the statute, cannot fail, we think, 
 to convince all, that the words used have no very marked fitness 
 to express the yearly products of land, which are the joint results 
 of labor and the use of the land." {Bruce v. Thoirvpson, 26 Yt. B. 
 741, 746.) 
 
 § 500. The .prima facie inference that a deed taken to the wife 
 of the person who pays the consideration for it, was intended as a 
 gift to her, may be rebutted and overcome by parol proof to the 
 
XABITAL EIGHTS IK VERMONT. 689 
 
 ( 
 
 contrary ; and if this is done, a resulting trust will exist in favor of 
 the husband. Upon this principle, where the orator purchased and 
 paid for a piece of land, the deed of which was taken to ■ the wife, 
 and the proof being satisfactory that it was not intended as an abso- 
 lute gift to her, the court held that there was an implied or resulting 
 trust which a court of chancery would execute in his favor ; and it 
 seems that if the husband had so taken the deed' under a misappre- 
 hension as to its legal operation, supposing that it would have the 
 same effect as though taken to himself and wife jointly, a court of 
 equity would be justified in compelling the parties interested to 
 allow it to have that operation. ( Wallace v. Boweri, 28 Vt. B. 638.) 
 
 No transaction between husband and wife^ during coverture, 
 will create a debt against the estate of the wife after her decease. 
 Bat if a husband should make permanent' improvements upon the 
 wife's estate, greatly beyond the value of the rents, and should 
 unexpectedly be deprived of the same, by a dissolution of the 
 coverture, by the death of the wifoj it is possible a court of equity, 
 in a strong case, might grant some relief, by a division of the 
 estate^ to prevent great injustice, as in some sense an Unexpected 
 occurrence, and so coming fairly within its jurisdictibn to relieve 
 from accident.! But as the ease before the court afforded no such 
 state of facts, the point was not decided, and thereupon left in 
 doubt. {Pierce v. Pierce, 25 Vt. B. 511.) 
 
 A husband suffered his wife to' set up the millinery business in 
 her own name, and to manage it at her own discretion,' he having 
 nothing to do with making the purchases, teepihg the accounts, 
 or paying the debts of the business, and having furnished no 
 capital for which he had not been repaid, and having had no com- 
 munication with those of whom his wife made her purchases. The 
 court held that, on oquity principles, the stock' and property iii 
 the millinery shop must be treated as the separate property of the 
 wife, and be held liable for her debts and subject to the demtods 
 affecting it ; and that in such a ease the husband has no equity to 
 the goods of his wife on the ground that he had supported her and 
 assisted her occasionally in the business, which will stand agaihst 
 the right of her creditors. {Poflrtridge v. StocTeer, 36 Vt. B. 108.) 
 
 § 501. The wife of an intestate received during coverture certain 
 
 personal property by gift and inheritance, and also acqtlired some 
 
 money by her own personal earnings ; the intestate always regarded 
 
 all this as his wife's 6epara,te. property, and allowed her to treat and 
 
 8V 
 
690 LAW OF COVEBTURE. 
 
 control it as such. The property was, during coverture, reducea 
 to money, and all her money was then loaned and notes taken 
 therefor in the husband's name ; but they were always regarded 
 and treated by him as her separate property, and she kept them in 
 a separate parcel and room from that belonging to him. Shortly 
 before the intestate's death,' his wife, being about to leave home 
 temporarily, left her parcel of notes in her husband's care for safe 
 keeping, and they were found among his papers by his adminis- 
 trator and inventoried by him as belonging to the intestate's estate, 
 the widow, however, claiming them as her own. On this state of 
 facts the court held that, as against the heirs of the husband, the 
 notes were, in equity, the sole property of the wife ; and the 
 administrator was therefore allowed, in the settlement of his 
 account, to credit himself with their full amount, which he had 
 realized and, paid over to the widow. {Richardson v. Merrill, 32 
 Yt. R. 27. Tide also Porter v. The Rank of Rutland, 19 ii. 410.) 
 
 So also it was held that when both husband and wife have 
 always treated as the latter's separate property, and as under her 
 entire control, money and notes taken for the loan of money- 
 belonging to her before, or accruing to her during, coverture, her 
 right to hold and dispose of the same as she may choose will be 
 recognized and protected by courts of law as well as of equity. 
 She may, therefore, make such notes the subject of a donatio inortis 
 to her husband as trustee for other persons ; and, even though the 
 husband do not reduce them to possession during her life, the 
 delivery of them to him by her for that purpose will vest in him a 
 good legal title to them as against her administrator. {Caldwell v. 
 Renfrew, 33 Vt. R. 213.) 
 
 § 502. The mere delivery to the husband, by the makers of a 
 promissory note, given for the purchase of the real estate of the 
 wife, and payable to her or bearer, which the husband immediately 
 afterward delivers to the wife, who thereafter retains the same in 
 her possession, it has been held, does not constitute such a reduc- 
 tion of the note to possession by the husband as divests the property 
 of the wife therein. To constitute such a reduction to possession 
 of the cJwses in action of the wife, the husband must do some 
 positive act to reduce them to his own possession. (Barber v. 
 Slade, 30 Vt. R. 191.) 
 
 So, also, it is held that the mere fact that a note is made payable 
 to a married woman during coverture, and is expressed to be for 
 
MABITAL EIGHTS IN VERMONT. 691 
 
 value received, imports prima fade, that the consideration pro- 
 ceeded from her or her real or personal estate, and the note is her 
 chose in action, and passes to her administrator unless reduced to 
 actual possession by the husband before her death. {Stearns v. 
 Steams, 30 Yt. li. 213.) 
 
 A wife who voluntarily and without good reason, has, for a con- 
 siderable period, lived apart from her husband, and has supported 
 herself without any assistance from him, may, if the husband does 
 not previously claim her earnings, receive them herself, and after 
 they have been paid to her, the husband cannot recover them of 
 the person from whom they were due. {I^orcross v. Rogers, 30 Vt. 
 B. 588.) 
 
 The plaintiff and his wife had difficulty and separated, and he sub- 
 sequently told her that " if she was not going to live with him again 
 she might have a part of the household furniture," but nothing was 
 said as to what articles, or how much, she should have ; the court 
 held that this language did not import a license to the wife to go 
 to the plaintiff's house in his absence and take away whatever she 
 pleased without his knowledge or consent ; and the defendant hav- 
 ing, in such a case, assisted the wife in a 'wrongful taking and 
 removal of the husband's household furniture, the court further 
 held, that, in an action of trover against such defendant therefor, 
 the rule of damages was correctly held to be the value of the 
 property, with the interest, notwithstanding it had been in 
 the exclusive lise and occupation of the plaintiff's wife. {Crump 
 V. Cofe, 38 Fit. ^. 566.) 
 
 TJnder a deed to a husband and wife to hold during their lives 
 and the life of the survivor of them, the husband, in an action of 
 ejectment, may recover to the extent of the interest of both, without 
 joining his wife as co-plaintiff. {Parh v. Pratt, 38 Vt. B. 545.) 
 
 § 503. "With respect to the Vermont homestead law, the courts 
 have held that the property is subject to the payment of the 
 owner's debts contracted before the act took effect, December 1, 
 1850, or the purchase of the homestead. {Perrin, Adrrwnistrator, 
 V. Sargeamt, 33 Yt. B. 84.) 
 
 The owner of a homestead, having a wife, may convey it by his 
 own deed, and pass the title thereto during his life-time. After his 
 death, and not before, the wife, if she survives him, maiy assert her 
 right to it, provided it has not been lost by acquiring another 
 homestead. {Dams v. Andrews, 30 Yt. B. 6T8.) 
 
LAW OF aoVERTUME. 
 
 Under the act, it has been held, that after, the decease of the 
 housekeeper or head of the family, his widow has the right to hold, 
 control. and enjoy the homestead as a. home for herself, without 
 restraint or abatement by any of, tlie children of her deceased hus- 
 band, who are, not members of her family. The clear design of 
 the law, the court holds to be to continue the homestead, entire, 
 as the home of the widow, or of the widow and children constit.utitig 
 the family at the decease of the husband, and ; no rights- of , the 
 children become operative to sever or divert such homestead from 
 full occupancy and enjoyment, m the family home^ so long as- the 
 widow, or widow and children^ see. fit to continue it: as such family 
 home. {EeyesY.IIill,?,()Vt.E.1?>'d.) 
 
 The provisions of , the statute relating to homesteads are held to 
 be sufficiently broad and comprehensive to include' and establish 0. 
 homestead right in lands in which the housekeeper or head of the 
 family is the owner of an xindivided share as tenant in common with 
 others ; and the provisions of the statute. are adequate to ascertain 
 and set out the homestead right in cases where the title is thus 
 special and limited.. The incumbrance of the homestead right is 
 attached, not to the land, but to the husband's , estate in. the land; 
 and his widow and minor children are entitled to a- full homestead 
 right in his moiety or share in the common property. The right 
 does not attach to the whole of the real estate owned in common. 
 {McClary v. Bixly, 36 Vt. E. 254.) 
 
 Under the provisions of the statute, the exeinption of the home- 
 stead applies only to the house and the land connected with it, and 
 will not include a distinct and separate parcel not adjoining the 
 house lot. {Mills v. Grant, 36 Yt. E, 269.) 
 
 The products of a homestead are exempt from attachment and 
 execution absolutely and without any qualification or exception, 
 even if the debtor has received an eqxiivalent from otlier portions 
 of his possessions.. {Jewett v. Ouyer, 38 Vt. E. 209.) 
 
 The act of 1857, providing for relief in certain cases where the 
 homestead cannot be conveniently set out in severalty, applies as 
 well to the homestead left by a deceased person., as to that of 
 persons in life. {GhapUn v. Sawyer, 35 Vt. R. 286.) Under the 
 laws of the state relating to the homstead, in force in 1858, both 
 homestead and dower may be set up in the same estate, but the 
 dower is to be reduced by the amount of the widow's interest in 
 the homestead. {Chajilm v. Sawyer, supra.) 
 
liARITAH RIQSTSm MASSACSUSETTS. 693 
 
 CHAPTER XXXIY. 
 
 « 
 
 STATTTTOET POLICY OF THE NEW ENGLAND STATES EELATTNG TO MAEEIED 
 WOMEN AND MAEITAL EIGHTS — LAWS OF MASSACHUSETTS — LAWS OF 
 EHODE ISLAND— LAWS OF CONNECTICUT — JUDICIAL CONSTEUCTION AND 
 DECISIONS. , , ' 
 
 § 504. In the State of Massachusetts, the property both real and 
 personal, which a married woman owns as her sole and separate 
 property, that which comes to her by descent, devise, bequest, 
 gift or grant, that which she acquires by her trade, business, 
 labor, or services, carried on or performed on her sole and separate 
 account, or received by her for releasing her dower by a deed exe- 
 cuted subsequently to a conveyance of the estate of her husband ; 
 that which a woman, married in the state, owns at the time of her 
 marriage, and the rents, issues, profits, and proceeds of all such 
 property, are declared by statute to be her sole and separatei prop- 
 erty, and may be used, collected, and invested by her in her Own 
 name, and are not subject to the interference or control of her hus- 
 band; or liable for his debtsl The husband and wife may, by their 
 joint deed, convey the real estate of the wife which is not her sepa- 
 rate property, in like manner as she' might do by her separate deed 
 if she were unmarried, but the wife will not be bound by any 
 covenant contained in such joint deed. {Gen. Stata. 1860, ch. 
 108, §§1,2.) 
 
 § 505. A married woman ifl Massachusetts may bargain, sell 
 and convey her separate real and personal estate, enter into any 
 contracts in reference -to the same^ carry on any trade or business, 
 and perform any labor or services on her sole and separate account, 
 and sue and be sued in all matters having relation to her sej^arate 
 property, business, trade; services, labor, 'and .earnings^ in the Same 
 manner as if she were sole. But no conveyance by her of shares 
 in a corporation or of afty real property, except' a lease for- a term 
 not exceeding one year, and a release of dower' executed subset 
 quently to a conVeyanceof the estate of her husband, will be valid, 
 without the assent of her husband in writing," or iis joining with 
 her in the 'conveyanee, or the consent of one of the judges of the 
 fiupreriie judicial court, superior court, or the probate court, granted 
 on her petition in any courts on' account of the sickness, insanity, 
 or absence from the 'state of her husband, or other good cause ; and 
 
694 LAW OF COVSRTUBE. 
 
 the husband if within the state must have such notice of the peti- 
 tion as the judge may order. {Oen. Stat. ch. 108, § 3.) 
 
 § 506. Trustees may be appointed by the supreme judicial court, 
 on the petition of a mamed woman having separate property, to 
 hold the same in trust for her, and she may thereupon convey the 
 same to the trustee upon such trusts and to such uses as she may 
 declare. The trustee may prosecute and defend all actions in 
 relation to such property brought by or against her, founded on. 
 any cause of action relating to the same ; and the property in his 
 hands is made liable to be attached or taken on execution in any 
 such action. 
 
 The contracts inade by a married woman in respect to her 
 separate property, trade, business, labor, or services, will not be 
 binding on her husband, nor render him or his property liable 
 therefor ; but she and her separate property will be liable for such 
 contracts in the same manner as if she were sole. 
 
 Payment may be made to a married woman for wages earned 
 by her labor, and her receipt for the income of property held in 
 trust for her, or for the principal where the same is payable to her, 
 or for the payment to her of money deposited by or due to her, 
 before or after marriage, will be a valid receipt and discharge, 
 although her husband does not join therein. 
 
 The real estate and ' shares in any corporation standing in the 
 name of a married woman, which were her property at the time of 
 her marriage, or which became her property by devise, bequest, or 
 gift, of -any person except her husband, are not liable to be taken 
 on execution against her husband for any debt contracted or cause 
 of action arising after the third day of June, 1856. {Gmi. Stat. 
 ch. 108, §§ 4, 5, 6, 7.) 
 
 § 507. A married woman having a separate estate may be sued 
 for any cause of action which originated against her before 
 marriage, and her property is made liable to be attached and 
 taken on execution in the same manner and with the same effect 
 as if she were sole. The husband of a wife married in the state 
 after the third day of June, 1855, is not liable to be sued for any 
 cause of action which originated against her before marriage. 
 
 A married woman may make a will of her real and separate 
 personal estate, in the same manner as though he were sole ; but 
 such will cannot operate to deprive her husband of more than one- 
 half of her personal property without his consent in writing. 
 
NARITAL EIGBTS IN MASSACEUSETTS. 695 
 
 These provisions, however, are declared not to invalidate any 
 marriage settlement or contract, or authorize the husband to con- 
 vey or give property to his wife, or destroy or impair his rights as 
 tenant by the curtesy, or enable a married woman to destroy or 
 impair the same by any will or conveyance without his written 
 assent. 
 
 "Where the guardian of a ward is licensed to sell the interest of 
 his ward in any real estate, the wife may join with the guardian in 
 the conveyance, and release her right of dower and the estate, or 
 right of homestead in the premises granted ; and when such 
 guardian is licensed to sell the interest of his ward in any real 
 estate of his wife, the wife may join in the conveyance, and thereby 
 sell and convey all her estate and interest in the premises granted. 
 But in case of any such release of dower, or the estate or right of 
 homestead, or of such conveyance of her own estate, the proceeds 
 of the sale may be so invested and disposed of as to secure to her 
 and the minor children of the owner, if it is an estate or right of 
 homestead, the same right, use and beneiit of and in the principal 
 sum and the income thereof that she or they would have had 
 therein if it had not been sold ; and any agreement made between 
 her and such guardian for receiving and disposing of such proceeds 
 will be valid and binding on all persons interested in such premises, 
 provided that the agreement must be approved by the probate 
 court for the county in which the guardian was appointed, or by 
 the supreme court of probate, in case she and the guardian cannot 
 agree. {Gen. Stat. ch. 108, §§ 8-13.) 
 
 § 508. The wife of a man who is under guardianship may join 
 with the guardian, and the guardian of a woman may join with 
 her husband, in making partition of her real estate held in joint 
 tenancy or in common, and they may make the necessary release or 
 conveyance necessary or proper for the purpose. 
 
 Provisions are also made by statute for the conveyance of the 
 husband's or wife's real estate, in cases of insanity of the owner, 
 by a guardian duly appointed and authorized for that purpose, and, 
 in such cases of insanity of the husband, provisions may be made 
 for the wife in lieu of dower, and for an allowance for the support 
 of the wife out of the estate of the husband, to be paid to her by 
 the guardian. The amount of allowance in such case is deter- 
 mined by commissioners appointed by the court upon her petition. 
 {Gen. Stat. ch. 108, §§ 14-26.) 
 
6&6 LAW OF COVES-TUBE. 
 
 The provisions in favor of married women are extended to par- 
 ties marrying out of the state, and to women coming from another 
 state or county into the state without their husbands, such hus- 
 bands having never lived in the State of Massachusetts. {Gen- 
 /S'tot cA. 108,' §§ 29, 30.) : , 
 
 § 509. A wife whose husband has absented himself from the 
 tatej abandoning and not sufficiently maintaining her, or whose 
 Husband has been sentenced to confinement in the state prison, 
 may upon her petition be authorized by the supreme judicial court 
 to sell, convey and receipt for, her real and personal estate, and any 
 personal estate which may have come to her husband by reason of 
 the marriage, and which remains in the state undisposed of by him, 
 or to which he is entitled in her right ; and to use and dispose of 
 such property or the proceeds thereof during the: absence or impris- 
 onment of her husband, as if she were unmarried. And the court 
 may further authorize such wife to make contracts in her own name, 
 and to sue and be sued in law or equity, as if she were sole. The 
 authority so granted will continue until the husband returns into 
 the state and claims his marital rights, or is discharged from prison, 
 and during its continuance the wife may do all acts necessary for 
 its full exercise. And no suit when such ' woman is a iparty will be 
 abated by the return of her husband into the state or his discharge 
 from prison, but he can be admitted to prosecute or defend the ■ 
 same jointly with his wife in like manner as if they had intermar- 
 ried after the commencement of the suit; {Gen. Stat. ch. 108, 
 §§31-35.) 
 
 % 510. TJiider the provision of the statute requiring the assent of 
 the husband to the wife's deed of her sole and separate property, it 
 has been held that a woman who during coverture executed such a 
 deed without the assent of her husband in writing, as required by 
 the statute, will not be compelled, after her husband's death, by a 
 court of equity, to execute a new and valid deed to the grantee ; 
 although the woman's husband orally assented to the original deed. 
 Foster, J., in delivering the opinion of the court, obseirved ;: " The 
 defendant, while a niarried woman, executed to the plaintiff a quit- 
 claim deed of an estate held by her as sole and separate property*, 
 who has since deceased, her husband did riot join, and- to which he 
 never gave any written assent; The consideration of the convey"- 
 ance was an agreement by the plaintiff to support the defendant 
 and her husband during their joint'l lives and^the life of the sur- 
 
MASITAL EIGHTS IN MASSACHUSETTS. 697 
 
 vivor. The deed of a married woman, without her husband's 
 joinder, at common law is absolutely void. The statute from which 
 she derives, her only power to convey her. sole and separate property 
 {Oen. Stat. cAi 108, § 3) in express terms enacts that no conveyance 
 of any real property, except a lease for a term not exceeding one 
 year, and a release of dower subsequently to a conveyance by her 
 husband, shall be valid without the assent of her husband in writ- 
 ing or his joining with her in the conveyance. - 
 
 "It is not contended that the deed actually executed was other- 
 wise than utterly void ; its admitted invalidity is the foundation of 
 the supposed equity which the plaintiff now invokes the aid of the 
 court to enforce. Nor is it claimed that while the husband lived 
 there was any foundation for a suit in equity against him to com- 
 pel his Avritten assent, and thereby to perfect the void conveyance. 
 Bat, by reason of his death, the plaintiff insists that he is entitled 
 to require from the defendant a new conveyance,' which, as &f6me- 
 aole, she is now competent to execute. In our opinion, however, 
 the written assent of the' husband is as indispensableto the validity 
 of an executory agreement, by a married woman, to convey her 
 real estate, as to an executed conveyance thereof. The restrictive 
 clause of the section requiring the husband's written consent is as 
 broad as that which confers the power to convey. Itwould be a 
 preposterous construction to hold that a married woman might 
 alone enter into a binding agreement to do that which .she 
 could not actually do: without heri husband's concurrence. * * ^ 
 Upon what principle can it be maintained, that an instrument wholly 
 void, upon its execution is made valid and capable of enforcement 
 in equity by the contingency of the husband's.death? The deed, 
 when executed, was inoperative for want of power on the part of 
 the grantor. The removal of the disability of coverture cannot 
 possibly! render effectual and binding a: contract or ' conveyance 
 made while that disability continued, : and by reason thereof 
 originally a mere nullity. Whether the section under considera- 
 tion be eonsidered as one conferring' a power not previously 
 possessed by married women, but on condition of. the husband's 
 written consent, which is its form ;> or as a pii'otective enactment 
 requiring such written consent for the benefit and security of: the 
 wife's interests, which is its substance ; in either view, its effect 
 and construction must be the same. * * * A court of equity 
 has no more jurisdiction than a court of law to recognize and give 
 88 
 
698 LAW OF COVERTURE. 
 
 effect to instruments inoperative for want of compliance ^rith a 
 condition made by statute prerequisite to their validity." {Tovns- 
 ley V. Ch<ipin, 12 Allen''& R. 476, 478, 479, 480.) The principle 
 settled . in" this case is an important one, and amply justifies the 
 space given to the opinion of the court. 
 
 The assent in writing required by the statute of the husband of 
 his vrife's conveyance of her separate real estate which is not 
 occupied by them as a homestead, is sufficiently shown by proof of 
 a deed thereof signed and sealed by both of them, and containing 
 these words : " In witness whereof I, the said ' married woman,' 
 and B. my husband, in token of our release of all right and title of 
 or to both dower and homestead in the granted premises, have here- 
 unto set our hands and seals." {Hills v. Bearse, 9 Allen's H. 403.) 
 
 § 511. Under the statute, it is observed that a married woman 
 may, if she choose, keep her personal earnings to herself as her sole 
 and separate property ; but it has been held, nevertheless, that she 
 may waive that right if she sees -fit; and, in conformity with this 
 holding, it was decided, that if a married woman buys articles of 
 furniture for family use from time to time, paying for them partly 
 with her own earnings, and partly with money furnished by her 
 husband, aud not discriminating or separating part of the property 
 as her own from the rest, and there being nothing in the articles 
 themselves to indicate that they were for her personal and exclusive 
 use, it is prima fade evidence that the wife does not claim or have 
 any separate title or exclusive right in any portion of them. (Kelly 
 v. Drew, 12 Allen's R 107.) 
 
 A feme-covert cannot sustain an action against partners, of whom 
 her husband is one, to recover compensation for services performed 
 for them. She cannot contract with her husband, and is not there- 
 fore able to contract with other parties jointly with him. {Edwards 
 V. Stevens, 3 Allen's R. 315.) Neither can a married woman form 
 a partnership with her husband, and she is not liable upon a prom- 
 issory note given by a firm of which by partnership articles she and 
 her husband have agreed to be members. {Lord v. Parker, 3 
 Allen's R. 127.) But a married woman may belong to a trading 
 partnership, so as to be bound by a promissory note given in the 
 partnership name, if her husband is not a member thereof. {Plumer 
 v. Lord, 5 Allen's R. 460.) 
 
 It has been held that if a married woman who has joined in 
 several deeds of her own estate, by her husband's request, and ' 
 
MARTFAL RIGHTS lUT MASSACHUSETTS. 699 
 
 allowed him to keep the money received therefor, afterward joins 
 in another similar deed, in consideration of his executing to their 
 daughter a note and mortgage for a larger sum than the amount 
 received for the last conveyance, the mortgage will be valid, in the 
 absence of any fraudulent intent in either of the parties to it, 
 {Brooks V. Dabrymjple, 12 Allen^s JR. 102.) 
 
 By the statute, a married woman is enabled to hold money and 
 personal property within iiertain limits, and obtained in a particu- 
 lar way, but that is an exceptional case, and it is held that, not- 
 withstanding the statute, personal property in the possession of the 
 wife is to be presumed, in the absence of other evidence, to be 
 the property of her husband. This was the rule of the common law, 
 adopted and acted upon in the commonwealth, until the passage 
 of the statute of 1855, chapter 304, enabling married women to 
 have property in their own right and to their own use ; and it is 
 thought the statute does not vary this presumption of fact, and the 
 party whose case requires him to prove property in the wife must 
 therefore rebut such presumption, and show facts which bring it 
 within the statute as a case in which the statute declares it to be 
 the separate property of the wife. {Commo7iwealth v. Williams,'^ 
 Gray's R. 337, 338.) The rule, as we have seen, has been declared 
 to be different in the State of New York. 
 
 Money paid by a married woman before the statute of 1855, upon 
 a bond to convey land to her, has been held to be prima facie the 
 property of her husband, and may be recovered back by him on 
 offering to surrender the bond. And, before the statute, the earn- 
 ings of the personal labor of a wife, even when living apart from 
 her husband, were his property, and might be recovered by him 
 from one to whom she had assigned them without value. The 
 statute, however, has now changed this common law rule. {Casey 
 V. Wiggin, 8 Gray's R. 231. McKamlin v. BresUn, II. 177.) 
 
 If a married woman purchase personal property with her own 
 means, or upon her own credit exclusively, and takes the convey- 
 ance to herself for her own use, the property becomes her separate 
 property, and is not liable for her husband's debts, although, in 
 making the conveyance there is no express statement, in writing or 
 otherwise, that it is to be held as her separate property. {Spauld- 
 ing V. Day, 10 Allen's R. 96.) 
 
 § 512. It is provided by statute that whenever any property shall 
 be secured to any married woman, or conveyed, devised or 
 
700 LAW OF COVESTUEE. 
 
 bequeathed to her, pursuant to the provisions of the statute, " such 
 woman shall, in respect to all such property, have the same rights 
 and powers, and be entitled to the same remedies in her own 
 name, at law and in equity,: and be liable to be sued at law 
 and in equity upon any contract by her made, or any wrong by 
 her done, in respect to such property, and also upon any con- 
 tract by her made or wrong by her done before her marriage, in the 
 same manner and with the same effect as if she was unmarried; 
 and all such property may be attached in any such suit, and may 
 be taken on execution, as if she held the same being unmarried." 
 ■ The statute further provides, that if any married woman, holding 
 property to her separate use by virtue of this act, shall die intestate, 
 all her right and interest in any personal property thus held shall 
 vest in the husband, unless other provision is made in relation 
 thereto by the terms of the contracts or conveyances under which 
 she holds ; and that he shall be entitled to his estate by the curtesy 
 in all lands and tenements held by his wife, as if the act had not 
 been passed. {Laws of 1845, cA. 208.) Under this statute it has 
 bfeen held that a conveyance by a i married woman, in which her 
 Lusband does not join, of property held by her to her separate use 
 by virtue of the statute, passes a valid title,' subject only to the 
 estate by the curtesy secured to the husband by the statute. {Beal 
 V. Warreii, 2 Gray's R. 447.) 
 
 A wife, by joining with her husband in a written contract with 
 a mechanic for furnishing labor or materials for erecting a building 
 on her land, does not thereby create a lien on her estate in the land, 
 for the amount due to the mechanic for such labor or materials, 
 under the provisions of the statute which give a lien to mechanics 
 and others forthe cost of repairs and improvements on real estate j 
 but if the husband and wife have a child born alive in such a case^ 
 the mechanic's lien will extend to the husband's estate in the land 
 as tenant by the curtesy initiate. {Kirby v. Tead, 13 Meted} fs 
 ^.149.) 
 
 § 613. By an antenuptial contract between a man and his in*- 
 tended wife,. such intended wife was to hold her property to her 
 sole and separate use, and was to advance to the intended husband 
 certain promissory notes owned by her;, with the proceeds of which 
 the husband was to redeem his mortgaged farm, and convey one 
 half thereof to his intended wife, and have the use of such half so 
 long, as he should be a faithful " husband to his intended wife ; the 
 
MASITAL SIOBTS IN MASSACSUSBTTS. 701 
 
 intended Jiaisband, however, even then had nolegal right to redeem 
 his farm, as the right to redeem it was wholly gone from him; 
 whereupon the parties were married and the husband soon there- 
 after took the notes from his wife without her consent, and put 
 them into the hands of his attorneys, to be collected for him ; the 
 wife petitioned the court to appoint a trustee to hold her separate 
 property in trust for her, and the court appointed a trustee accord- 
 ingly, and the wife immediately conveyed to such trustee all her 
 separate property in trust according to the provisions of the statute ; 
 and the .trustee then brought a bill in equity against the husband 
 and his attorneys, praying that they might be required, by decree^ 
 to deliver said notes to him, and might be restrained from prose- 
 cuting actions against the makers of the notes, and from receiving 
 any money due thereon : the court held that the trustee was entitled 
 to a decree against the husband declaring the title of such trustee 
 to the notes and the proceeds thereof, and also to a decree against 
 the husband's attorneys, requiring them to account for and deliver 
 over to the trustee the notes or the proceeds thereof, on payment 
 of their legal costs and expenses for services and disbursements. 
 {Tinker v. Beach, 11 Mete. E. 349.) 
 
 § 514. By a recent statute of the general court, it is provided 
 that any married woman doing or proposing to do business on her 
 separate account shall file a certificate in the clerk's ofiiee of the 
 city or town where she does or proposes to do business, setting forth 
 the name of her husband, the nature of the business proposed to 
 be done, and in case no such certificate shall be filed, such married 
 woman is not allowed to claim any property employed in said 
 business as against any creditors of her husband, but the same may 
 be attached on mesne process by any such creditor, or taken upon 
 execution against the husband of such woman. {La/uos of 1862, 
 ch. 198.) 
 
 The language of this statute is broad and comprehensive, and 
 includes property belonging to a married woman of every kind 
 which is employed by her in carrying on business on her sole 
 account. The object of the statute has been declared to be to 
 aflbrd the means of ascertaining in which of the two persons, the 
 husband or wife, apparently in the possession and use of, property 
 in carrying on any kind of trade or occupation, the title is vested, 
 so that all having occasion to transact business with either may 
 regulate their dealings accordingly. It has, therefore, been held 
 
702 LAW OF COVERTURE. 
 
 that the statute applies to furniture used in a boarding-house 
 kept by a married woman. {Cha^nan v. Briggs, 11 Attends 
 B. 546.) 
 
 § 515. Under the statute of 1845, chapter 208, a married woman 
 to whom real estate had been conveyed, without words expressing 
 that it was to be held by her to her sole and separate use, could not 
 make a valid conveyance thereof without her husband's joining as 
 grantor ; and a deed not so executed cannot be refonned in equity. 
 {Jewett V. Damis, 10 Allen's E. 68. Gerrish v. Mason, 4 Gray's 
 H. 432. But vide Perkins v. Richardson, 11 Allen's B. 538.) But 
 in reference to the separate property of the wife which is held 
 exclusively to her own use, and which she may, by virtue of a later 
 statute, convey by her own deed, with the Avritten assent of her 
 husband, a diiferent rule would apply, and she may be required 
 specifically to perform her contract entered into with respect to 
 such separate property. ( Vide Baker v. Hathamay, 5 Allen's B. 
 103. But vide Townsley v. Chaphi, 12 ih. 476.) 
 
 If a woman mortgages her land to secure a debt to a third person, 
 her subsequent marriage to the mortgagor will not extinguish the 
 mortgage ; but after his death his legal representatives may enforce 
 it. Nor will the appointment of the mortgagor as administrator 
 of the estate of the third person have this effect, if no funds come 
 into his hands which can be applied to the payment of the mortgage 
 debt. In such case, the fact that during the marriage her husband 
 undertook to foreclose the mortgage, and that he executed a will 
 treating the mortgaged premises as his own, cannot legally preju- 
 dice her rights after his death. A married woman cannot during 
 coverture be barred of her estate, held without any limitation to her 
 sole and separate use, by an esto;ppel in pais. {Bemis v. Call, 10 
 Allen's B. 512.) 
 
 § 516. There are three statutes bearing upon the question of the 
 power of a feme-covert to bind herself by her contract, which 
 essentially modify the marital rights of parties as they exist at 
 common law, and greatly increase the rights and obligations of 
 married women. By the statute of 1845 it is provided that a mar- 
 ried woman may, upon certain prescribed terms and conditions, in 
 pursuance of a written contract entered into between the parties 
 before the solemnization of the marriage, hold the whole or any 
 designated part of the real or personal estate of which she may be 
 seised or possessed at the time of the marriage, to her sole and separ 
 
MASITAL BIQETS IN MASSACSUSETTS. 703 
 
 rate use, free from the interference and control of her husband, 
 and also may in like manner hold such as shall be conveyed or 
 bequeathed to her afterward, to be held in like manner and for the 
 same purpose. {Laws of 1845, ch. 208, §§ 1, 2, 3.) The statute of 
 1855 declares that all the real and personal property of any woman 
 who sha,ll thenceforward be married in the commonwealth, which 
 she owns at the time of her marriage, or to which she afterward 
 acquires a title by descent, devise or bequest, or by the gift of any 
 person except her husband, shall be and remain her sole and sepa- 
 rate property notwithstanding her marriage. {Laws of 1855, ch. 
 304, § 1.) The statute of 1857 goes still further, and declares not 
 only that " the property, both real and personal, which any woman 
 who may now be married in this commonwealth, may now own as 
 her sole and separate property," but also that " any real or personal 
 property which shall hereafter come to her by descent, devise or 
 bequest, or the gift of any person except her husband, shall remain 
 her sole and separate property notwithstanding her marriage, and 
 shall not be subject to the disposal of her husband, or liable for his 
 debts." {Laws of 1857, ch. 249, § 1.) These statutes are all in 
 derogation of the common law, and are not to be extended by con- 
 struction. Hence, it lias been held that no claim arises against a 
 married woman for money paid by her request in reference to land 
 of which, after her marriage, and before the passage of the act of 
 1855, referred to, she received a deed from her father in her own 
 name, but with no provision therein that she should hold the land 
 to her sole and separate use, or free from the interference or con- 
 trol of her husband. {Smith v. Bird, 3 Allen^s H. 34.) It has, 
 however, been held that a married woman who holds a bond with 
 condition to convey land to her, to her sole and separate use, free 
 from the interference and control of her husband, upon ijajTiient 
 of a certain sum, is liable in an action at law, under the statutes of 
 the commonwealth, upon a promissory note given by her for money 
 borrowed to be applied and actually applied in payment of the 
 amount necessary to secure to her the conveyance of the land, and 
 also upon a promissory note given by her for money borrowed for 
 the purpose of paying debts contracted by her for matters neces- 
 sary for the carrying on of a farm, after she had received a deed 
 therefor. {Attics v. Foster, 3 Allen? s R. 541.) 
 
 Under the statute of 1857, a note made payable to a married 
 woman is exempt from attachment by subsequent creditors of her 
 
704 LAW OF COVERTURE. 
 
 husband, [Chaprmn Y.WilMams, IS Graf s R. 416. But vidn 
 Woodcock V. Heed, 5 Allen?s B; 207.) 
 
 § 517. A married woman who carries on the business of keeping 
 boarders on her sole and separate account, and has purchased goods 
 to be used in her business upon her sole credit, is liable therefor 
 under the statute of 1855, although her husband lived with her at 
 the time when the goods were purchased; and her own acts and 
 admissions in reference' to her business are competent evidence 
 against her; but she is not liable on a note given by her in 
 payment' for goods originally sold and charged to her husband. 
 {;ParJcery^.8im0nds-lAU6n^sR.25S.) 
 
 So a married woman is- liable upon a Bote signed by her jointly 
 with her husband in payment for lumber and materials Sold 
 and delivered upon land owned and held by her to her' sole and 
 separate use, and designed for and actually used in the repair of 
 buildings standing thereon, she knowing all the facts; and also 
 on notes given in renewal thereof. {Pother t. Kane, 1 Allen^a 
 ^.346.) 
 
 So, alsoj under the statutes in force, a mortgage of the land of 
 a married woman held by her to hersole and separate use, executed 
 without duress by her and her husband jointly, to secure a debt of 
 her husband and a third person, is valid; and the fact that she 
 signed a note for the same debt as surety for them is immaterial. 
 And if a married woman has jointly with her husband executed a 
 deed of land held by her to her sole and separate use, the effect of 
 the words of grant in the early part of the deed is not controlled 
 by a statement in the last clause that she signs in token of her 
 release of dower. {Bartlett v. Bwrtlett,! Allen's R. 440.) 
 
 An indorsement of a draft by a husband to his wife, and her 
 subsequent indorsement of it with his assent to a third person, are 
 sufficient to vest in the latter a valid title. {Slawson v. Zoring, 5 
 Allen's R. 340.) 
 
 A married woman who carries on the business of farming upon 
 land for which she holds a bond for a deed, to her sole and separate 
 use, is liable upon a promissory note given by her for money 
 borrowed to enable her to pay for the land, and actually applied by ■ 
 her to that purpose. {Chwpman v. Foster, 6 Allen's R. 136.) And 
 a promissory note given by a married woman for land conveyed to 
 her, to her sole and separate use, is valid under the statute. 
 {Stewart V. JenJcms, 6 Allen's R. 300.) 
 
KARITAh RmWIS IN MASSACHUSETTS. Y05 
 
 § 518. Under articles of agreement signed by a married ■woman, 
 her husband, and several other persons, reciting that she and one 
 of the others had taken a lease of certain manufacturing -works, 
 and providing that she shall furnish a certain amount of capital, at 
 eight per cent, and that her husband shall devote his whole time 
 to the business of manufacturing and selling the articles, and mak- 
 ing special provisions as to the duties and rights of the others, andi 
 further providing that " she or her husband, as they two may 
 decide or agree, shall receive one-half of the net profits of the con- 
 cern ; " the court held that the husband is a partner in the firm ; 
 and that therefore the wife is not a partner, and is not liable upon 
 a promissory note given in the name of the firm. {Plumer v. 
 Lord, 1 AUerCs R 481.) 
 
 A married woman is not liable for lumber purchased by and 
 delivered to her prior to the enactment of the statute of 1857, 
 chapter 249, to be used in making alterations and repairs on a 
 building upon land held by her under a Seed which contained no 
 provision that she should hold the land to her sole and separate 
 use, or free from the interference or control of her husband. {Gram 
 V. Kdley, 1 Allen's M. 250.) But a married woman may be held 
 liable under the statute of 1845, chapter 308, upon covenants con- 
 tained in a deed of land in another state, held by her to her sole 
 and separate use, and conveyed as the consideration of a deed of 
 land in the State of Massachusetts, which was conveyed to, her, to 
 her sole and separate use, free fi-om the interference or control of 
 her husband ; and it was held that the fact that her husband joined 
 with her in the deed and covenants is immaterial. {Basford v. 
 Pearson, 1, Allen's H. 504.) 
 
 A bill in equity lies to enforce payment out of the separate 
 estate of a married woman, so far as she has the right of disposal 
 thereof, of a bond given by her for the price of land conveyed to 
 her sole and separate use, provided that no effectual remedy exists 
 at law, and the creditor is not confined to collateral security held 
 by him for the bond. In such case the bill need not set out any 
 specific estate or property belonging to the defendant in her own 
 right, but may allege generally, that she is possessed of property 
 to her sole and separate use, and subject to her disposal, which ia 
 chargeable with the payment of the bond. {Sobers v. Ward, 8 
 AUen's H. SS7.) 
 
 89 
 
706 LAW OF COVERTUEE. 
 
 No further review of the cases which have arisen under the 
 Massachusetts statutes respecting marital rights, and the powers 
 and obligations of married women, is deemed necessary, as the 
 foregoing seem to cover the whole ground, and embrace fully 
 the doctrine of the courts upon the subject. 
 
 § 519. In the State of Ehode Island, the statute provides that 
 when any married woman coming into the state to reside, from 
 another state or country, without her husband, he never having 
 lived with her in the state, and shall continue to reside in the state 
 without her husband, for the space of one year continuously, she 
 may afterward, during her separate residence therein, transact 
 business, make contracts, prosecute and defend suits in her own 
 name, and dispose of such of her property which she may acquire 
 by her own industry or otherwise. And she may make and exe- 
 cute any deeds and other instruments in her own name, and do all 
 other lawful acts that may be necessary or proper to carry into 
 effect the power granted to her. She will be liable to be sued as 
 if she were unmarried, upon all contracts, and for all other acts 
 made or done by her after the expiration of said term of one year. 
 If her husband shall afterward come into the state and claim his 
 marital rights, his arrival in the state will have the same effect 
 with regard to any suit then pending in which she is a party, 
 except to abate the same, and to any contract or business trans- 
 acted by her imder the power granted in these provisions, as if 
 they had been first married at the tinae of his arrival, and no other 
 effect. {Rev. Stat. 1857, ch. 135, §§ 1-5.) 
 
 § 520. The real estate, chattels real, and personal estate, which 
 are the property of a married woman before marriage, or which 
 may become her property after marriage, .or which may be acquired 
 by her own industry, are so far secured to her sole and separate 
 use that the same, and the rents, profits, and income thereof, shall 
 not be liable to be attached or in any way taken for the debts of 
 the husband, either before or after his death ; and, upon the death 
 of the husband in the life-time of the wife, will be and remain her 
 sole and separate property. In- case of the sale of any such prop- 
 perty, the proceeds of the sale, or any part of the same, may be 
 invested in the name of the wife In any property, and be secured 
 to and holden by the wife in the same manner and with the same 
 rights and effect as the property sold. The receipt or discharge of 
 the husband for the rents and profits of such property will be a 
 
MARITAL BIOHTS IN RBOt)E ISLAND. 707 
 
 sufficient I'eceipt or discharge therefor, unless previous notice in 
 ■writing be given by the wife to tlie lessee, debtor, or incorporated 
 company, from whom such rents or profits are payable ; in which 
 case the sole and separate receipt or discharge of the wife will 
 alone be a sufficient receipt and discharge therefor, and the receipt 
 of the wife will in all cases be a sufficient discharge for the pay- 
 ment or delivery to her of her own property. {Rev. Stat. ch. 136, 
 §§ 1, 2, 3.) 
 
 § 521. The chattels real, household furniture, plate,, jewels, stock 
 or shares in the capital stock of any incorporated company, money 
 on deposit in any savings bank or institution for savings, with the 
 interest thereon, or debts secured by mortgage on property, which 
 are the property of any woman before marriage, or which may 
 become her property after marriage, cannot be sold, leased, or con- 
 yeyed by the husband unless by deed, in which the wife must join 
 as grantor, which deed is required to be acknowledged in the manner 
 provided for the conveyance of the real estate of married women. 
 
 Any married woman is authorized by statute to sell and convey 
 any of her personal estate, in the same manner as if she were 
 single and unmarried ; and to make contracts respecting the sale 
 and conveyance thereof, with the same effect, and with the same 
 rights, remedies and liabilities as if such contracts had been made 
 before marriage ; although this provision is not to be construed to 
 authorize any married woman to transact business as a trader. 
 Neither does this provision apply to the case of lands and tene- 
 ments, or other real estate, held by the husband and wife, being of 
 lawful age, in the right of the wife. Such real estate can only be 
 conveyed by deed or other instrument in writing, signed, sealed 
 and delivered by the husband and wife respectively. The wife in 
 such cases must acknowledge the execution of the deed or other 
 instrument upon a private examination apart from her husband, 
 {Rev. Stat. ch. 136, §§ 4-8.) 
 
 § 522. If any deed affecting the wife's dower right in the estate 
 of her husband be executed by the attorney of the wife during the 
 life of the husband, the letter of attorney must be executed and 
 acknowledged with the same formalities as are required in the 
 execution and acknowledgment of a deed by a husband and wife 
 of an estate held in the right of the wife. 
 
 Any married woman of sane mind, and of twenty-one years of 
 age and upward, may dispose of her real estate, or any portion 
 
708 LAW OF COVESTUEE. 
 
 of the same, and, being of the age of eighteen years and upward, 
 may dispose of her personal estate, or any portion of the same, by 
 last will and testament, executed in the manner in which other 
 wills are required to be executed for disposition of like property. 
 The right of the husband in the real estate of the wife as tenant by 
 the curtesy, and his right to administer without action upon her 
 personal estate not disposed of by her last will and testament, are 
 not impaired by these provisions of the statute ; nor do these pro- 
 visions authorize the husband to give unto, or settle any of his 
 property upon his wife, in any' other manner or with any other 
 effect than is by general law allowed. {Eev. Stat. ch. 136, §§ 9-13.) 
 
 § 523. The property secured to any married woman by these 
 provisions of the statute is made liable to attachment or levy for 
 her debts contracted before marriage, and for her liabilities on such 
 contracts, as she is authorized to make under such provisions, under 
 the same circumstances, and with the same effect, as if she had 
 continued sole and unmarried. And it is -declared that nothing 
 in such provisions shall be construed to impair any lien or right of 
 lien therein, or any remedy by law provided for the enforcement 
 thereof. In all actions relating to the property of any married 
 woman, secured to her by these provisions, the husband and wife 
 must jointly sue £ind be sued, except in case a trustee of the same 
 be appointed as provided by law, and except in actions upon such 
 contracts as she is authorized to inake in relation to her personal 
 estate, the wife rbay sue and be sued alone. In case of recovery 
 by any husband and wife, or wife, in any such action the amount 
 recovered may be invested in the name of the wife, in any property, 
 with the same rights and effect as if the same had remained in the 
 possession of the wife, whether the right of action accrued before 
 or after marriage ; and all such actions and rights of action will 
 survive the death of either husband or wife. {Rev. Stat. cA. 136, 
 §§ 14, 15, 16.) 
 
 Eeal estate in the state belonging to, or coming or descending to 
 any woman born in the United States, or who has been otherwise 
 a citizen thereof, will, upon her death, notwithstanding her mar- 
 riage with any alien and residence in a foreign country, descend to 
 her lawful children of such marriage, if any, and their descendants 
 in like manner and with like effect, as if such childi-en or their 
 descendants were native born or naturalized citizens of the United 
 States. (Rev. Stat. ch. 176, § 22.^ 
 
MARITAL EIGHTS IIT BBODB ISLAND. ^09 
 
 § 524. It lias been held that in a suit by husband, and wife tp 
 recover wages earned by the wife before marriage, the wife is not 
 competent to testify in favor of her claim, her husband being a 
 party and interested in the costs of the suit. {Donnelly v. Sn^th, 
 1R.I.B.12) ' 
 
 It has been further held, that in trover for the note given on the 
 purchase of the property of a married woman by the adminis- 
 trator of the wife against the purchaser, into whose hands it had 
 got during the life of the wife, the act with respect to the wife 
 under age joining with her husband in the sale of her estate, was 
 not designed to prevent the succession of the wife's administrator 
 to the note, and to give it to her heirs, but merely to designate that 
 the same class of heirs under the ancestral clause of the statute of 
 descents, should be entitled to the distribution of the proceeds of 
 the note as would have inherited the real estate had it never been 
 converted into personalty. {TilUnghast, Ad/ininistrator, v. Itol- 
 hrooJc, 7 JR. I. H. 230.) 
 
 A married woman is not liable in covenant jointly with her hus- 
 band, for the breach of a covenant against incumbrances, contained 
 in the deed of the husband and wife, of her estate ; and, in strict 
 course, the plaintiff joining her in such action, must become nonsuit ; 
 although the court may allow the plaintiff in such a case to amend 
 the writ and declaration by striking out the wife as a party defend- 
 ant, and take judgment against the husband alone, without costs. 
 {Porter y..£radley, 7 B. I. B. &38.) '"■,"."" 
 
 A married woman haying separate property may purchase with 
 it property from her husband, and, if the price paid by her be 
 adequate to the value of her purchase, her title will be maintained 
 against her husband's creditors, both at law and in equity. {Stead- 
 man v. Wilbur, 7 B. I. B. iSl.) 
 
 A husband in the actuaV possession of the wife's real estate, Jio 
 trustee of the same haying been appointed under the "act concern- 
 ing the property of married women," is, notwithstanding the pro- 
 visions of said act, so far seised of her real estate that, when his 
 interest in the same is sold under, a decree against him for the 
 enforcement of a mechanic's lien, the purchaser may maintain 
 trespass and ejectment against tlie husband to recover possession of 
 such estate. (Martin y. Pep'all, 6 B. I. B- 92.) 
 
 A trustee of the property of a marked woman, appointed by the 
 court during her separation from her husband under the statute, 
 
710 tAW OF COVERTURE. 
 
 will at her request be removed, and the management of her prop- 
 erty restored to her, if such request be made freely and without 
 the coercion of her husband, and there be no equitable reason to 
 the contrary. (Johnson v. Snow, 5 R. I. R. 72.) 
 
 Husband and wife must join in an action of replevin for property 
 mortgaged to the wife before marriage, to recover her sole and sep- 
 arate debt, by the express provision of the "act concerning the 
 property of married women." '( WaterTnan v. Matteson, ^ S. I. 
 B. 539.) 
 
 A married woman holding separate property under the married 
 woman's act, is not to be viewed, as respects such property, as 
 a feme-sole. A solicitor who has, at the request of a married 
 woman, performed services and expended moneys in prosecuting a 
 suit in equity relating to her separate leasehold property, cannot 
 therefore sustain a suit in equity to obtain compensation and reim- 
 bursement out of that property. {Cozzens v. Whitney, Z H. I. JR. 
 79.) 
 
 § 625. The courts of Ehode Island hold that although no form 
 of words is necessary to create an estate to the sole and separate 
 use of a woman as against her present or future husband, yet such 
 words must be used in the language limiting the use, as clearly and 
 unequivocally express the intent to exclude the marital rights of 
 the husband, and does not leave that intent a matter of doubt and 
 speculation. Upon this principle, it was held that when the guar- 
 dian and brother of & feme-sole, who was under age and contracted 
 to be married, at her request, purchased an estate with her money, 
 and took a deed to himself in fee, described therein as her guardian, 
 habendum "to him, his heirs forever, to and for the only proper 
 use, benefit and behoof" of his ward, " her heirs and assigns forever," 
 and the covenants of warranty for quiet enjoyment ran to him, 
 " his heirs and assigns, to and for the sole use, benefit and behoof 
 of her, her heirs and assigns," these words, merely, did not create 
 a trust for the sole and separate use of the ward, but, there being 
 .nothing for the guardian to do under the provisions of the deed, 
 the statute of uses transferred the legal title to the ward, so as to 
 admit her husband to curtesy in her estate. {Nightingale v. Hid- 
 den, 2 Am. Law Reg. {N. S.'\ § 443. S. C. 7 R. I. R. 115.) 
 
 § 526. In the State of Connecticut, it is declared by statute that 
 all real estate conveyed to the wife during coverture, paid for by 
 her means or by money earned by her personal service, shall 
 
ItAniTAL BIOSTS IN CONNECTICUT. 711 
 
 belong to her to lier sole use ; and all the proceeds of her real 
 estate are also hers, in equity, and are exempt from her husband's 
 debts ; and all personal property coming to the wife during the 
 abandonment of her by her husband, or during their separation, 
 from the abuse or intemperance of the husband, is declared to 
 belong to the wife, and, liy reason of such abandonment or separa- 
 tion, the husband loses all control over all of his wife's property. 
 Personal estate coming to the husband in the right of the wife, or 
 through her as the meritorious cause, is held by him as the trustee 
 of the wife for her use, excepting so far as he may have paid her 
 antenuptial debts, and he may be required to give bond's as such 
 trustee, and for reasonable cause he may be removed and anotlaer 
 appointed in his place. During the time of the abandonment of 
 the wife. by the husband, she may act as her own trustee, and, after 
 the same has continued three years, she may, with the leave of the 
 court, execute deeds of her real estate, without the concurrence of 
 her husband. The interest of the husband in his wife's real estate 
 is not liable for the husband's debts during the life of the wife or 
 that of her children. Payments made to married women of money 
 by Tier deposited with, or loaned to, any person, or corporation, or 
 of money earned by her personal services, during coverture, will 
 be valid payments, and her receipt for the same will have the same 
 effect as the receipt of a, feme-sole. {Gen. Stat. 1866, tit. 13, ch. 2.) 
 
 § 527. The courts of the state hold that statutes are not to be so 
 construed as to have a retrospective effect, unless such construction 
 be required in the most explicit terms ; the presumption being 
 that they are to operate prospectively, and not to impair vested 
 rights. Therefore, the statute relating to the domestic relations, 
 providing for the conveyance of real estate to the wife during 
 coverture, is held applicable to conveyances subsequently made, and 
 contains no express allusion to those previously made ; and hence 
 is not retrospective. {Plumh v. Sawyer, 21 Conn. R. 351.) 
 
 The act provides that when the real estate of a married woman 
 is sold, and the avails are " secured or invested in her pame," the 
 same shall in equity belong to her. Where a note was taken iti 
 the name of the wife for the price of her land sold, it was held 
 that the avails of the sale were secured cmd invested in her name 
 within the meaning of the statute. And where money received by 
 the wife for her real estate sold was deposited by her in her own 
 name in bank, it was held to be invested within the meaning of 
 
712 LAW OF COVERTURE, 
 
 the statute. If the money so deposited could, not be regarded as 
 invested, it would be considered as still in the possession of the 
 wife, deposited for safe keeping to await an investment. So where 
 railroad bonds were taken in the name of the wife for her real 
 estate sold, and after the wife's death the husband received the 
 interest upon them, it was held that the bonds belonged to her 
 estate, and that the estate of the husband was liable to her repre- 
 sentatives for the interest so received. And where a note was 
 made payable to the wife for the price of her land sold, and after- 
 ward the maker had done work on buildingO)elonging to the wife, 
 under an agreement with herself and her husband that this bill of 
 work should be indorsed on the note as part payment of it, which, 
 however, was hot done, and the note was kept by the husbanjd 
 until his death, and was always claimed by him, it was held that 
 the note was the property of the wife, but that the bill of work 
 ought to be applied in part payment of it. {Jennings v. Davis, 
 31 Com. B. 134.) 
 
 The act of 1860 provides that money or other property acquired 
 by a married woman during coverture by her personal services, 
 shall be held by her to her sole and separate use. Under this act, 
 money due for her services is protected as hers, in the same man- 
 ner as if the money had been received. Where, therefore, a suit 
 was brought by the husband and wife for the recovery of money 
 duo for her personal services, it was held that a claim against the 
 husband could not be set off by the defendant. ( WhiUng v. Beck- 
 with, 31 Conn. B. 596. And vide SherwQod v. Sherwood, 32 ih. 1.) 
 
 CHAPTER XXXy, 
 
 THE STATDTOET POLICY OF THE STATES OF KEW JERSEY, PENNSTL 
 VANIA, DELAWARE AND MAEYLAETO IH EESPEOT TO MAEEIED WOMEN 
 AND MAETTAL EIGHTS — LAWS OF SUCH STATES EESPECTTVELY — JUDI- 
 CIAL CONSTEUOnON AND DECISIONS. 
 
 § 528. By the statutes of New Jersey, the real and personal 
 property of any female, which she shall own at the time of her 
 marriage, and the rents, issues and profits thereof, are declared not 
 to be subject to the disposal of her husband, nor liable for' his debts, 
 
XABITAL SIGHTS IN NEW JEBSST, 718 
 
 and will contiaue her sole and separate property, as if she were a 
 ■single woman ; and the. real and personal property, and the rents, 
 issues and profits thereof, of any female now married, irrespective 
 of the date of her marriage, will not be subject to the disposal of 
 her husband, but will be her sole and separate, property, as if she 
 were a single female. And it is made lawful for any married 
 female to receive by gift, grant, descent, devise or bequest, and 
 hold to her separate use, as if she were a single female, real 
 and personal property, and the rents, issues and profits thereof, and 
 the same are declared not to be subject to the disposal of her hus- 
 band, nor liable for his, debts ; and it is provided that all contracts 
 made between persons in contemplation of marriage shall remain 
 in full force after such marriage takes place. {Laws of 1851,^. 34 
 amd Laws of 1852, p. 407. Elmer's Dig. 1855, p. 466, ancZ Laws 
 of 1866, ch. 294.) 
 
 It is further provided by statute, that in, any deed made by any 
 married woman of full age, who joins with her husband in execut- 
 ing said deed, of any.lands or any estate therein, it shall be kwful 
 for her to enter into any covenant as to title of the land conveyed, 
 or intended to be coiiveyed, or against incumbrances thereon, or 
 warranting the samei, and such coveriants will have the same force 
 and effect against her and all persons claiming by, through or under 
 her, as if she were a feme-sole and unmarried. {Laws of 1857, 
 ch. 189.) * ; 
 
 By a recent statute, it is made lawful for any married woman to 
 cause suit to be brought in any court of record in the state, for the 
 redress of any wrong she may have suflfered, or may hereafter suf- 
 fer, or for the recovery of any right withheld from her, and for that 
 purpose to cause the name of her husband to be joined with her 
 own in said suit or action, though without Ms. consent ; but if she 
 commence her suit vsdthout the consent of her husband, she is 
 required to file certain freehold security, specified in the statute. 
 This provision of the statute, authorizing such actions, is declared 
 not to apply to actions brought by married women living separate 
 fi'om their husbands^ through abandonment or otherwise. It is 
 made unlawful for the husband in any such ■. action to control, dis- 
 continue, release, or in any way interfere with the; same, but the 
 action is to proceed, and be under the control and discretion of 
 such married woman, as if she were a femie-sole. {Laws of, 186T, 
 oA. 444.) 
 
 90 
 
714 LAW OF COVERTURE. 
 
 % 529. Under the statute of 1852, for the better securing the 
 property of married women, a married woman can receive to her 
 sole use a deed for lands for a term of years. When such a deed 
 expresses on its fkce that the consideration was paid by the wife, 
 the presumption is held to be that the consideration was her own 
 money. The creditors of the husband under judgment and execu- 
 tion against him upon a cause of action arising anterior to the 
 deed, cannot get a title at law, as against the wife, so as to main- 
 tain ejectment against the husband and wife, nor turn her out of 
 possession. The whole legal title remains in the wife by force 
 of the statute, even if the consideration money of the deed was the 
 property of the husband. The court held in the same case, that 
 the earnings of the wife, upon express promise to pay her, belong 
 to her, and not to her husband, until he does some act witli intent to 
 reduce them into possession ; and if with such proceeds she buys 
 land, and the deed is made to her before the conversion by the hus- 
 band, the land belongs to her, and cannot be seized and sold by his 
 creditors under judgment against him; and the husband is not 
 obliged to, nor is. he guilty of any fraud against creditors, if ho 
 does not convert to his or their use the earnings of the wife. 
 {Stall V. Fulton, S JST. J. Law E. 430.) 
 
 But when a married woman, with the consent of her husband, 
 contracted for the purchase of a lot of land, which was afterward 
 conveyed to the husband, who paid the purchase-money and 
 ei'ected a house on the lot, part of the cost of which was paid by 
 the husband, and the balance was secured by his bond and mort- 
 gage on the premises, which was afterward paid by the wife by 
 money from her own earnings ; the court of errors and appeals 
 held, that these circumstances fail to establish any resulting trust 
 in the wife, or show any interest in the property in the wife para- 
 mount to the title of the husband. The court also held in tlie 
 same case, that by the common law, the earnings of the wife by 
 the product of her skill and labor belong to the husband ; and that 
 they do not become the property of the wife even in equity, without 
 a clear, express, irrevocable gift, or some distinct affirmative act of 
 the husband divesting himself of them or setting them apai't for 
 her separate use. {Skillman v. SkiUmaii. 15 HF. J. JEq. li. 478.) 
 A married woman cannot execute a deed without the consent of her 
 husband; the separate examination and acknowledgment directed 
 by statute, only i-emove her absolute incapacity to execute a deed, 
 
MARITAL RIGHTS 'IN NMW JERSEY. 715 
 
 and do not change the principle that requires the consent of her 
 husband. {Deer v. Lawahee, 4 Zabrishie's E. 613.) And the 
 agreement of a feme-covert, with the assent of her husband, for 
 the sale of her real estate, is absolutely void at law, and courts 
 of equity never enforce such a contract against her. ( Wooden 
 V. Morris, 2 Greenes Ch. E. 65.) But it has been held in New 
 Jersey, that a feme-covert is regarded in equity as a feme-sole, in 
 respect to her separate estate, so far as to enable her to dispose 
 of it in any way not inconsistent with the terms of the instrument 
 under which she holds it. {Leaycraft v. Medden, 3 OreerHs Ch. 
 E. 512.) 
 
 § 530. A married woman, owning real estate by devise from her 
 father, obtained an injunction against a purchaser of the real estate 
 under executioii against her husband, restraining him from pro- 
 ceeding with a suitat law to recover the possession of the property. 
 ,0n a motion to dissolve this injunction, it was held by the coiu't 
 of chancery, that as the wife's claim to protection was founded pn 
 her allegation that by her father's will the real estate was devised 
 to her sole and separate use, and that her husband had no estate in 
 the land which could be the subject of a levy and sale at law ; if 
 that be so the wife has a valid and complete defense at law, and 
 there is no need of the intervention of the court of chancery to 
 protect her interest. The claim of the wife that if the purchaser 
 under the exeoution be permitted to proceed with his suit, it would 
 result in defeating the intention of the testator as to his widow, by 
 depriving her of the home which by the will he directed she should 
 enjoy with his daughter on the premises in question, cannot avail 
 her in the suit in chancery. So far as these considerations estab- 
 hsh any legal right in the widow, they are available only in her 
 behalf and at her instance. The complainant cannot by her bill 
 enforce the legal or equitable rights of another. {Emery v. Y<m- 
 sickel, 15 IT. J. Eq. E.U4c.) 
 
 The husband is a necessary party to a bill filed by the grantee 
 of the husband against the wife for the partition of lands alleged 
 to have been held by the husband and wife as tenants in common. 
 The wife can only defend the suit jointly with her husband, except 
 tinder special circumstances. A wife, though living separate from 
 her husband, even though she has been separated by deed, cannot 
 be sued alone ; her husband must be joined if only for conformity. 
 {McDermott v, Freiich, 15 N. J. Eq. B. 78.) 
 
716 LAW OF COVEBTURE. 
 
 In an action, against liusband and wife, if there be apprehension 
 on the part of the wife that her husband will not make a proper 
 defense for her, leave will be granted to her to answer separately 
 from her husband. {Edbbins v. Airahmns, 1 Halstead's Ch. R. 51.) 
 
 § 531. Liabilities voluntarily incurred by a married woman will 
 be charged upon her separate estate, but she cannot by her contract 
 make herself personally liable.' 
 
 The act of 1857, which provides that & feme-covert may covenant 
 as to the title of her lands, affords the strongest legislative, con- 
 struction that, the act of 1852 does not by necessary implication 
 confer upon her the right to dispose of her real estate, o.r to make 
 contracts in regard to it. A contract, entered into by a married 
 woman for the sale of her estate cannot be enforced ; but equity 
 will charge her separate property with the repayment of money 
 advanced to the wife, at her instance, and for her benefit, or on 
 account of her estate. {Pents v. Simonson, 13 If. J. Ch. B. 232. 
 Xeay craft v. 3edden, 3 Green's Ch. R. 512.) 
 
 When the title to land is in a married woman as her separate 
 property, she and her husband living separate, and money is paid 
 and advanced at her instance and for her benefit, a mortgage 
 executed by her alone to secure such advances will be a valid and 
 equitable lien on such property. ( WUson v. Brown, 13 N. J. Ch. 
 B. 277.) 
 
 It has been held that the act of March, 1862, does not authorize 
 women previously married to convey real estate, conveyed to them 
 subsequently to the passage of the act. {Naylor v. Field, 5 Dutch. 
 B. 287.) 
 
 § 532. In the State of Pennsylvania it is provided by statute that 
 eveiy species and description of property, whether consisting of 
 real, personal, or mixed, which may be owned by or belong to any 
 single woman, shall continue to be the property of such woman, 
 as fully after her marriage as before ; and all such property, of 
 whatever name or kind, which shall accrue to any married woman 
 during coverture, by will, descent, deed of conveyance or other- 
 wise, shall be owned, used and enjoyed by such married woman as 
 her own separate property; and the said property, whether owned 
 by her before marriage or which shall accrue to her afterward, is 
 declared not to be subject to levy and execution for the debts or 
 liabilities of her husband during the life of the wife, and the same 
 cannot be sold, conveyed, mortgaged or transfei'red,' except by a 
 
HABITAL RIOBTS IN PENNSYLVANIA. 717 
 
 deed or conveyance duly executed by the wife in which, her husbaild 
 shall join. But it is expressly declared that no property of a mar- 
 ried woman shall be protected by the statute from liability for 
 debts contracted by herself or in her name by any person authorized 
 so to do, or from levy and execution on any judgment that may be 
 recovered against a husband for the torts of the wife ' in which 
 cases execution must be first had against the property of the wife, 
 and in no case is the husband liable for the debts of the wife con- 
 tracted before marriage. {Laws of 1848, 536, § 6, as applied h/ 
 laws of 1850, 553, § 20, and Laws of 1856, 315, § 1.) 
 
 This act enables a married woman to hold property, but not as a 
 feme-sole, but rather in eifect as though it was settled upon her as 
 a feme-covert. {Bear's Administrator v. Bear, 33 JPenn. JR. 525. 
 Pettitt V. Fritz's Executor, Ih. 118. Pennsyhiamia Company \. 
 Foster, 35 ib. 134. Walker v. Beamy, 36 ii. 410. Wright v. 
 Brovm, 44 ib. 224. But vide Cumming's appeal, 11 ib. 272. 
 Goodyear v. Rumbaugh, 13 ib. 480.) 
 
 When real estate is paid for with the earnings or savings of the 
 wife, this does not give her a separate estate in the property pur- 
 chased. The act does not change the common law rule that the 
 husband is absolutely entitled to the earnings and services of his 
 wife during coverture. {Eaylold v. Baybold, 20 Penn. R. 308.) 
 Neither can the wife acquire and hold property as against the 
 creditors of the husband by carrying on a business or trade in her 
 own name, while cohabiting with her husband, with capital loaned 
 to her for that purpose. In such a case the husband is regai'ded 
 as the actual owner of the goods employed in 'the business, and 
 entitled to the proceeds of the skill and labor of his wife. {Hallo- 
 well V. Horter, 35 Penn. E. 375.) 
 
 The statute is designed to protect the interest of the wife in her 
 separate property, both- as respects the title and the possession ; 
 and it has been held that when the husband and wife are in the 
 joint possession of the wife's property, a purchaser at sheriff's sale 
 of the husband's interest cannot recover possession in an action of 
 ejectment against the husband. (McElfatriok v. Hides, 20 Penn. 
 R. 402.) And the provisions of the act do not require of the wife 
 that she shall use and possess her separate property exclusive of- 
 her husband, or lose the benefit of the statute. If this were the 
 rule, the act would ordinarily be of little or no protection to 
 the wife, and the law cannot be so construed. {JSfanderbach v. 
 
718 LAW OF COVERTURE. 
 
 Mooh, 29 Penn. B. 43. Eoar v. Axe, 22 ii. 381. Bamoord v. 
 Zuhn, 36 il. 383. Walher v. ^^amy, /5. 410.) 
 
 § 533. When property is claimed by a married woman as against 
 the cfreditors of her husband, she is required to show, by evidence 
 clear and conclusive, either that she owned the property at the 
 time of her marriage, or else acquired it afterward in some of 
 the ways provided for by the statute ; and if she claims that she got 
 title to the property by purchase after her marriage, the burden is 
 upon her to prove distinctly and clearly that it was paid for with 
 funds which did not belong to her husband. ( WoLTcer v. Beam/y, 
 supra. Gamier v. Qamher, 18 Penn. B. 366. Baybold v. Bay- 
 lold, 20 ib. 311.) Unless the proof is clear and satisfactory that 
 the property thus purchased by a feme-covert was paid for out of 
 her separate estate, the presumption of law is that it was paid for 
 out of means furnished by the husband ; and this rule applies as 
 well to purchases of real as of personal property. (FlicTc v. Devins, 
 50 Penn, B. 266. Keeiiey v. Oood, 21 ih. 349. Bradford's 
 appeal, 29 ib. 613. Topley v. Topley's Administrator, 2>1 ib. 328. 
 Auble's Administrator, 35 ib. 261.) For example, when a testator, 
 having directed his executor to sell his stock of goods and real 
 estate, and, after payment of his debts and specific legacies, to 
 divide the residue between his brother and sister, a married woman, 
 who took the goods at the appraisement from the administrator, 
 agreeing therefor to pay the testator's debts, in amount greater 
 than the value of the goods, and kept store, the husband living in 
 the house and assisting in the business, the court held that, as the 
 goods were purchased on credit, and the stock kept up by 
 the wife with the assent of the husband, this did not in effect con- 
 stitute her a separate owner, and make the property hers under the 
 provisions of the married woman's act, and reiterated the rule that 
 when a married woman acquires property by purchase, she must 
 clearly show that the purchase-money was her own, in some way 
 within the recognition and protection of the act of 1848, as the law 
 presumes it to have belonged to her husband. {Hoffman v. Toner, 
 49 Penn. B. 231.) But it has been held that this rule is not 
 applicable when the action is brought by the wife against a mere 
 trespasser. {Hoar v. Axe, supra) Since the act of 1848, when 
 money is received by the husband from his wife's separate estate, 
 ostensibly for her use, and without an attending promise of repay- 
 ment on his part, his subsequent bond to secure his wife for the 
 
MARITAL JliaSTS IN PENNSYLVANIA. T19 
 
 money, made to her trustee, will be sustained against the creditors 
 of the husband. But a bond given by the husband to his wife's 
 trustee for moneys reduced to the husband's possession before the 
 married woman's act of 1848, would be without valid consideration 
 and void as to the creditors of the husband. {Eclcer's Adminis- 
 trator V. Martin, 50 Penn. B. 138.) 
 
 The statute of 1848 does not authorize the wife to convey her 
 real estate, except by a deed or conveyance in which her husband 
 is joined ; and the form of the acknowledgment has not been 
 changed by the act. {Peck v. Ward, 18 Penn. B. 506. Thorndell 
 V. Morrison, 25 ib. 326. Haines v. EUis, 24 ih. 253. SJdnn v. 
 Holmes, 25 ih. 142.) It has even been held that a married woman's 
 separate deed to release her dower is void. ( Ulp v. Campbell, 19 
 Pmn. B. 361.) The statute does not empower the wife, while 
 cohabiting with her husband, to execute an obligation for the pay- 
 ment of money, or the performance of any other act, except it be 
 to agree to pay for the improvement of her separate estate. {Gald- 
 weU V. Walters, 18 Penn. H. 82.) Neither does the law authorize 
 her under such circumstances to enter into a valid recognizance as 
 bail for her husband. The plea of coverture is a perfect defense 
 to such an instrument. {Bennet v. Smith, 3 Am. Law Jov/r. 138.). 
 The wife, however, may bind her separate estate for the payment 
 of her husband's debts, and she may assign her interest in her 
 deceased father's i-esiduary estate, to recover the debts of her hus- 
 band, though she cannot legally bind her separate property to 
 pay the expenses of collecting a debt against her husband. {Magaw 
 V. Stevenson, 1 Ch'anCs Cases, 402. Li/tie's ajppeal, 36 Penn. B. 131.) 
 
 The provisions of the married woman's act of 1 848 do not con- 
 fer upon the wife any new power to contract debts, with the priv- 
 ilege of being sued for them. The debts referred to in the statute 
 for which her separate property is liable to be .taken on execution^ 
 are those from which the husband is exempted from liability. {Clyde 
 V. KeistUr, 32 Penn. R. 85. Bear's Administrator v. Bear, 33 *S. 
 529.) The wife, however, is permitted, as before intimated, to con- 
 tract debts for the improvement of her separate estate, and for 
 debts contracted for that purpose her separate property can be made 
 liable. But it has been held that she can avoid a debt contracted 
 for the avowed purpose of improving her separate estate ; it must 
 be made to appear that the money was actually used for that 
 object. {Mahoy, v. Qormley, 24 Penn. B. 80, Hough v. Jones, 32 
 
720 LAW OF CdVSBTUSS. 
 
 ih. 432. Murray v. Keyes, 35 ih. 384.) If the courts adhere, 
 strictly to this rule, it behooves those dealing with married women 
 to be careful to see not only that their advances made to them aie 
 ybr the proper objects, but that they are actually appropriated to 
 Biich objects. 
 
 Where a feme-covert executed a mortgage of her separate estate 
 to secure the debt of her husband, it was determined that she 
 might waive the limitation provided by the act of 1705, and agree 
 that a writ of scvre-facias may issue at once on default of payment 
 of tne mortgage debt. {Slack v. Oahowy, 24:, Penn. Ji. IS. 
 Patterson v. Robinson, 25 ib. 82.) 
 
 § 534. By the statute, a married woman may dispose, by her 
 last will and testament, of her separate property, real, personal, or 
 mixed, whether the same accrues to her before or during coverture, 
 although her last will and testament must be executed by her, it 
 order to be valid, in the presence of two or more witnesses, neither 
 of whom must be her husband. {Laws of 1848, 536, § 7.) 
 
 It has been determined and held by the courts of New York, 
 that this power conferred upon married women to dispose of their 
 separate property by will is a general one, and not limited to 
 property acquired subsequently to the passage of the act. They 
 may dispose of their entu-e property by a will properly executed, 
 whether such property was acquired before or during coverture. 
 The statute removes 'a disability, and therefore the power to devise 
 is not limited to subsequently acquired property. {YanWert v. 
 Benedict, 1 Brad. R. 114.) This decision, though pronounced in 
 New York, is good authority upon this subject in Pennsylvania. 
 
 The provision of the married woman's act of 1848, giving power 
 to a feme-covert to make a will, does not prevent the will of a 
 feme-sole from being revoked by her subsequent marriage. The 
 act simply removes the disability by reason of coverture to make 
 a will, but in no way affects other statutory regulations relating to 
 the consequence resulting from marriage. {Fra/merHs wiU, 26 
 Penn. B. 202.) 
 
 The power of a feme-covert to bequeath or devise her property is 
 restricted, as regards her husband, to the same extent as the hus- 
 band's power BO to dispose of his property is restricted, as regards 
 the wife, namely, so that any surviving husband may, against her 
 will, elect to take such share and interest in her real and personal 
 estate as she can, when surviving, elect to take against his will in 
 
MABITAL RIGHTS IN PENNSYLVANIA. 721 
 
 his estates, or otherwise to take only her real estate as tenant by 
 the curtesy ; though this provision is not to affect the right or 
 power of the wife, by virtue of any authority or appointment 
 contained in any deed or will, to grant, bequeath or devise any 
 property held in trust for her sole and separate use. {Laws of 
 1855, 430, § 1.) 
 
 The first impression of the courts, in the construction of the act; 
 of 1848, was that it made a radical change in the condition of a 
 feme-covert, an(} gave her, in all respects that concerned her prop- 
 erty, the fuU rights and privileges of a feme-sole, and there are 
 dicta to that effect. {Gummmgi Ofppeal, 11 Perm. R. 272. 
 Goodyear v. RwrrAaugTh, 13 i5. 480. Sheidel Y.Weishlee, 16 il. 
 188.) The subsequent cases, however, have pot been disposed, as 
 we have seen, to give the act so wide a scope, and have been 
 adverse to a married woman's possession of many powers claimed 
 for her under it. (3 Am. Law Reg. \N. S.'\ 534) 
 
 § 535. Whenever the property of a married woman is secured to 
 her by the statute of 1848, and she shall have no trustee for the ■ 
 same, it is made lawful for her to apply to the court of common 
 pleas of the county where she was ddmiciled at the time of her 
 marriage, for the appointment of a trustee of the same, and such 
 court is required to appoint a trustee of the same, not being the 
 husband of the petitioner; and it is further lawful for any such 
 married woman to declare a trust in regard to such propei'ty or 
 any part thereof, in favor of any of her children. {Laws of 1850, 
 i?. 569, §11.) 
 
 The courts hold that this provision of the statute does not 
 authorize the appointment of a trustee to take charge of the prop- 
 erty of a married woMan, which she owned prior to the passage of 
 the act of 1848, to the exclusion of her husband. {BwrtorCs 
 ct^eal, 22 Penn. R. 164.) 
 
 Any suit or suits at law to be commenced in any of the courts of 
 the commonwealth, touching or concerning, or for the recovery 
 of any property, real; personal or mixed, belonging or secured to 
 any married woman, by virtue of the provisions of the act relating 
 to the rights of married women, passed the 11th of April, 1848, 
 may be brought in the names of such married woman and her hus- 
 band to the use of the said married woman ; and a recovery in 
 such suit or suits will be for the exclusive benefit of such married 
 woman. {Laws of 1850, p. 569, § 39.) 
 91 
 
t23 LAW OF COVEBTUBM. 
 
 Before the passage of the act of 1850, it had been decided by 
 the courts, that an action for the recovery of the separate property 
 of a married woman, or for any matter concerning it, might be 
 prosecuted in the joint names of the husband and wife,, or that the 
 wife might bring the action in her own name alone, as circum- 
 stances might require. ' {Goodyear v. Rumhaugh, 13 Penn. R. 
 480. Sheidel v. WdsUee, 16 il. 134.) 
 
 It was the impression in the first place, that the act of 1850 
 autliorized, but did not enjoin the action concerning the wife's 
 separate estate, to be brought by both husband and wife. But the 
 courts have held, that the action should be brought in the names 
 of both, to the use of the wife. {Kennedy v. Oood, 21 Penn. R. 
 349.) It was subsequently declared in unqualified terms, that the 
 act of 1850 took away the right of the wife to bring her separate 
 action. {Ritter v. Ritter, 31 Penn. R. 396.) 
 
 § 536. In all cases where debts may be contracted for necessaries, 
 for the support and maintenance of the family of any married 
 woman, it ismade lawful for the creditor, in such case, to institute 
 suit against the husband and wife for the price of such necessaries, 
 and, after obtaining a judgment, have an execution against the 
 >> husband alone; and, if no property of the husband be found, the 
 ofiScer executing the writ must so return, and thereupon an alias 
 execution may be issued, which may be levied upon and satisfied 
 out of the separate property of the wife, secured to her under the 
 provisions of the first section of the act of 11th April, 1848, with 
 the condition, however, that judgment cannot be rendered against 
 the wife in such joint action, unless it shall have been proved that 
 the debt sued for in such action was contracted by the wife, or 
 incurred for articles necessary for the support of the family of the 
 said husband and wife. {Laws of 1848, 536, § 8. Purden^s Dig. 
 ^.700, §13.) 
 
 An action cannot be sustained against a married woman under 
 this provision of the statute for necessaries furnished *3r the support 
 or maintenance of her family previous to the passage of the act. 
 {Headley v. Ettling, I PMla. R. 39.) And in all cases it must 
 appear that the articles furnished were actually necessary for the 
 support and maintenance of the family of the wife, and the question 
 of family necessaries, like that of necessaries in general, is a 
 question for the jury, to be determined from the circumstances of 
 the particular case. {Parke v. Meier, 37 Penn. R. 251. 8. C. 
 
MABITAL RiaSTS IN PENNSTLVAltlA. Y23 
 
 8 Pittsburg Leg. Jour. 170.) So, also, in order to sustain the 
 action against the wife in such a case, it is incumbent upon the 
 plaintiff to aver and prove, not only that the debt was incurred for 
 family necessaries, but- that the same was contracted by the wife 
 herself; otherwise the plea of coverture is a good defense, and will 
 defeat the action. {Murray v. Keyes, 35 Perm. R. 384. Parke 
 V, KUler, 37 Penn. B. 251. • -' 
 
 § 537. Whenever any husband, from drunkenness, profligacy or 
 other cause, shall neglect or refuse to provide for his wife, or shall 
 desert her, the statute confers upon her all the rights and privileges 
 secured to a feme-sole trader, under the act of the 22d of February, 
 1718, entitled " An act concerning feme-sole traders," and she is 
 made subject as therein provided, and her property, real and per- 
 sonal, howsoever acquired, is made subject to her free and absolute 
 disposal during life, or by will, without any liability to be interfered 
 with or be obtained by her husband, and, in case of her intestacy, 
 her property will go to her next of kin, as if her husband were pre- 
 viously dead. But in order that creditors, purchasers and others may 
 with certainty and safety transact business with a married woman 
 under such circumstances, she may present her petition to the court 
 of common pleas of the proper county, setting forth under affidavit 
 the facts which authoirize her to act as aforesaid, and, if sustained 
 by the testimony of at least two respectable witnesses, and the court 
 be satisfied of the justice and propriety of the application, such 
 court may, upon such notice as it may direct, make a decree and 
 grant her a certificate, that she shall be authorized to act, have the 
 power and transact business as before stated ; and such certificate 
 is made conclusive evidence of her authority, until revoked by such 
 court for any failure on her part to perform the duties by the act 
 made incumbent upon her. 
 
 The statute further declares that no husband who shall have for 
 one year or upward previous to the death of his wife, willfully 
 neglected or refused to provide for his wife, or shall have for that 
 period or upward willfully and maliciously deserted her, shall have 
 the right to claim any right or title in her real or personal estate, 
 after her decease, as tenant by the curtesy or under the intestate laws 
 of the commonwealth. {Lcms of 1855, 430, §§ 2,- 4, 5.) 
 
 Desertion is an actual abandonment of matrimonial cohabitation, 
 with an intent to desert, willfully and maliciously persisted in with- 
 out cause. {IngersoU v. Ingersoll, 49 Perm. B. 249.) 
 
724 LAW OF COVERTURE. 
 
 The act of 1718 referred to gives a feme-sole trader the capacity 
 to sue and be sued without joining her husband. But a married 
 woman is not liable to be sued as a feme-sole trader under the act 
 of 1855, unless she has been so decreed by the court under the 
 provisions of the act. {Hyde v. Hesser, 16 Leff. Inst. 364. CoroCs 
 Sights of Married Women, 667, note 1.) 
 
 § 538. Whensoever any husband shall have deserted or separated 
 himself from his wife, or neglected or refused to support her, or 
 she shall have been divorced from his bed and board, it is made 
 lawful by statute for her to protect her reputation by an action to 
 recover for slander or libel; and she is also given the right by 
 action to recover her separate earnings or property, with the con- 
 dition,, however, that if her husband be the defendant, the action 
 must be prosecuted in the name of a next friend. {Laws of 1856, 
 315, § 3;) It will be observed that by the provisions of this statute 
 the right is not expressly given to the wife to prosecute an action 
 against her husband for the protection of her reputation against 
 his slander or libel, and yet the right is implied by the proviso 
 requiring the action to be in the name of a next friend when the 
 husband may be the defendant. By the New York statute it is 
 provided that a married woman "may bring and maintain an 
 action in her own name for damages against any person or body 
 corporate, for any injury to her person or character, the same as if 
 she were sole ;" and we have seen that under that statute a married 
 woman cannot sue her husband for an assault and battery, slander 
 or libel. {Ante, § 475.) It was there admitted that the right of 
 the wife to sue in such a case was covered by the literal language 
 of the statute, but it was thought not to be justified, because it 
 was contrary to the policy of the law, and destructive of that con- 
 jugal union and tranquillity which it has always been the object 
 of the law to guard and protect. But in this case we have not 
 only the genisral language of the act, but the proviso declaring in 
 what way the action must be brought in the contingency that the 
 husband is the defendant. It is quite clear, therefore, that under 
 the Pennsylvania act the wife will be permitted to bring her action 
 against her husband in the circumstances supposed by the statute. 
 
 But it has been expressly held' by the courts, that neither the 
 married woman's act of 1848, nor any of its supplements, empowers 
 the wife, by her next friend or otherwise, to maintain an action of 
 debt against her husband, on a contract made during coverture. 
 
MARITAL BIGHTS IN PENNSYLVANIA. 725 
 
 {Bitter v. Bitter, 31 Penn. R. 396.) And it has been further held, 
 that a married woman can neither sue nor be sued on her contract 
 made during coverture. But an action may be brought by or 
 against her upon her antenuptial contract, though in such action 
 she must be joined with her husband. ( WilUams v. Cowa/i'd, 1 
 Oranfa Cases, 21. Hertzog v. Rertzog, 29 Penn. B. 465.) 
 
 § 539. It is made lawful by statute for married women to loan 
 to their husbands moneys, being of the separate estate of the wife, 
 and to take in security therefor a judgment or mortgage against 
 the estate of the husband; in the name of a third person, who will 
 act as trustee for such married woman; and any such security 
 taken honafide to secure such loan or moneys received by the, hus- 
 band from the proceeds of the real or personal estate of the wife, 
 is declared to be as good and valid in law against the estate of 
 the husband as though the same had been invested, by a trustee 
 appointed by the court. {Laws of 1851,. 669, § 22.) 
 
 A husband may effect an insurance upon his own life for the 
 benefit of his wife, and, when the policy is effected without fraud, 
 and on its face it appears to have been taken for the benefit of the 
 wife, and payable to her, it will be upheld. But the assignment 
 of a policy of life insurance by a debtor who is insolvent w^ien 
 insured, in trust for the benefit of his wife, was held to be fraud- 
 ulent and void as to creditors. {Elliotts Executor's appeal, 50 
 Penn. R. 75.) 
 
 § 540. "Whenever any married woman of lawful age shall . be 
 entitled to a legacy, or to a distributive share of the personal estate, 
 or of the proceeds of the real estate of a deceased person, it is made 
 competent for her, either in person or by attorney, to sign,.seal and 
 deliver a refunding bond, in pursuance of the act of the assembly 
 in such case made aud provided, and also to execute all such other 
 instruments, and to perform all such other acts as may by law be 
 necessary ito be done, or may be lawfully required by the executor 
 or administrator, upon the payment to her of the moneys to be 
 distributed as aforesaid, with the same effect, for the intent and 
 purpose of binding her separate estate, as if she were sole and 
 unmarried. {Laws of 1856, 315, § 4.) . 
 
 The courts of the state may permit married women to be incor- 
 porated with others, .in any institution composed of women, or to be 
 under their management, for the care and education of children, or 
 for the support of sick or indigent women. {Lciws of 1859, 78, § 1.) 
 
T26 LAW OF COVEBTUBE. 
 
 There are some other statutory peculiarities relating to marital 
 rights in Pennsylvania, having reference principally to the rule of 
 descent and distribution in cases of intestacy and the like, but 
 none so distinguishing as to make it appropriate to dwell upon 
 them in this place. The various statutes themselves in these 
 instances will need to be consulted as cases respectively arise. 
 
 § 541. There have been some quite interesting points recently 
 settled by the courts under the legislation of the State of Pennsyl- 
 vania respecting the rights j.nd powers of married women, a 
 reference to which will close the discussion for this commonwealth 
 under this head. 
 
 In general, terms it may be affinned that the married woman's 
 acts ai-e none of them intended to affect the vested rights of a hus- 
 band, and do not protect those rights, such as they may be, for the 
 wife's benefit, against the claims of the creditors of the husband. 
 ( Vide Lcmcaster Banh v. Stauffer, 10 Barr's Ji. 398. • Lefevre v. 
 Wiimer, II. 605. Boose's Appeal, 18 Penn. R. 392. Peck 
 V. Ward, Ih. 509. Stehman v. Iluier, 21 ib. 260. Burson's 
 appeal, 22 il, 164r. Bachman v. Chrmnan, 23 *5. 162.) 
 
 A married woman in Pennsylvania has no capacity to contract 
 for the sale of her land or to convey it, except in the precise 
 statutory mode. At law, femes-covert have no capacity to make 
 contracts. Their contracts are nullities, and in this respect equity 
 follows the law. Of course this does not apply to those cases where 
 the statute expressly empowers them to contract. A married 
 woman's power to convey her land is derived from the act of 1770, 
 and in regard to powers in their nature statutable, equity follows 
 the law, however meritorious the consideration. Equity will not 
 aid defects which are of the essence of the power, nor supply any 
 circumstance for want of which the legislatw-e has declared the 
 instrument void. 
 
 The contract of a married woman being void, it cannot be 
 ratified unless by deed in the mode prescribed by the statute. 
 Positive acts of encouragement which might operate to estop one 
 sui juris, will not affect one under legal disability ; and a wife can 
 do or forbear to do no act to affect her property, unless settled to 
 her separate use. 
 
 A married woman, by agreement signed only by herself and 
 without an acknowledgment, contracted to sell land ; she received 
 one year's interest and a small part of the purchase-money. The 
 
MARITAL EIOSTS IN' PENNSYLVANIA. 727 
 
 pureliaser took possession, and made improvements with her 
 knowledge and encouragement. Under the rules above suggested, 
 the court held that neither the principle of estoppel nor compen- 
 sation would prevent her recovering the land. {Olidden v. Strtopler, 
 6 Am. Zaw. Beg. [JV. S.] 635, 636. S. C. 52 Fenn. B. 400.) 
 
 A husband may, without the intervention of a trustee, settle 
 upon his wife a reasonable portion of his estate, if it be not done 
 in contemplation of future indebtedness, and he be free from debt 
 or perfectly solvent after payment, of all existing debts ; but the 
 settlement must be in such form as to place tbe gift within her 
 power and under her control. Upon such a settlement no legal 
 presumption of fraud arises, but the question is one of fact for the 
 jury as to the intention of the parties. Where a settlement by a 
 husband was made in another, state by permitting a mortgage 
 taken for real estate sold by him to be made to his wife, who, on 
 payment of the amount due, loaned it to him upon his note to a 
 trustee for her use, such settlement cannot be impeached by creditors 
 in the State of Pennsylvania whose claims arose several years 
 thereafter, and more than one year after the husband had removed 
 and engaged in business in the state, the transaction being valid 
 under the Ux loci contractus. [Townsend v. Maynard, 3 Am. Law 
 Beg. [iT. *'.] 572. S. C. 45 Penn. B. 198.) 
 
 The wife may be a creditor of the husband under the laws of 
 the commonwealth ; but it is necessary in such a case that she 
 prove her right as such creditor with great clearness. On this 
 point it is held that there should be no doubt. Where there is a 
 balancing question as to whether the money alleged to have been 
 lent by the wife to her husband came from her moans or his, it is 
 held not to be error in the court to take the question from the 
 jury. {HoAise v. GUger, Adminisl^ator, 6 Am. Law Beg. [JSF. S.l 
 635. S. 0. 52 Penn. R. 412.) 
 
 The bond of a married woman is declared absolutely void, and 
 60 is any judgment on it, whether by warrant of attorney or other- 
 wise. A married woman, owning real estate in Pennsylvania, sold 
 part of it, and, with the proceeds of the land and of a note given 
 by her, bought property in Maryland, and removed there; for 
 this note there was substituted a bond and mortgage upon her 
 remaining land, the proceeds of which on a sale did not discharge 
 the mortgage, but left a deficiency for which the holder of the 
 bond issued a foreign attachment. The court held that as the debt 
 
728 LAW OF COVJEBTUHjB. 
 
 ■was not within any of the provisions of the married woman's act 
 of 1848, or covered by any of the decisions of the courts iinder that 
 act, the action could not be maintained. (Steinman v. Ewing, 2 
 Am. Zaw Reg, [if. 8.} 635. 8. C. 43 Penn. E. 63.) 
 
 § 542. Since the married woman's act of April 11, 1848, in 
 Pennsylvania, the property of a married woman is absolutely 
 v.ested in herself, and hence it has been heldj that, in a prosecution 
 for larceny of the wife's property, such property must be laid in 
 the . indictment to be in the wife, or the prosecution cannot be 
 sustained. By this act, the husband has no control over his wife's 
 property, such property cannot be taken in execution for the pay- 
 ment of his debts, and, therefore, in no sense can the property be 
 regarded as his. {Oommonmealth v. Martin, 1 Am. Law Meg. 434.) 
 
 It may be added that, by a statute of the commonwealth, the 
 wives of mariners and others employed upon the high seas may 
 trade and do business, and enjoy generally the rights ot femes-sole. 
 (Duhlop^s JLaios, ed. of 1853, pp. 75, 76.) And further that the 
 husband is permitted to administer upon his deceased wife's estate, 
 and the wife; may generally administer upon the estate of her 
 deceased husband. {Dimlcp's Laws y pp. 461, 462.) And still 
 further, if money is awarded to a married woman upon distribution 
 or partition, or sale of her real estate, the statute requires that it 
 be secured for her benefit. {Bmilop's Loms, pp. 483, 484.) It 
 has been held, under the statutes of the commonwealth respect- 
 ing marital rights, that a judgment admitted to be unobjectionable 
 in point of honesty,, given by a husband to his wife to recover her 
 separate estate, is not void either in law or equity because of the 
 legal unity of the parties. ( WUliavu' appeal, 47 Penn. P. 307.) 
 Eut the judgment- bond of a married woman is absolutely void, 
 though given for debts contracted before marriage, or for necessaries 
 for the support and maintenance of her family ; her separate estate, 
 if liable for debts thus contracted, must be reached through the 
 proper form of action, and not by means of instruments declared 
 to be null and void. Accordingly, when a married woman gave a 
 judgment bpnd to one who advanced her money to be applied at 
 the time for the purchase of real estate by her for her sole and 
 separate use, and which was in fact so applied, the court held that 
 the bond so given was void, and could not be enforced against her 
 separate estate. {Keiper v. Selfrioh&p, 2 Am. Lcm Peg. [If. xS.] 
 504, 505. 8. O. 42 Penn. P. 325.) But though a judgment gives 
 
XABITAL RIGHTS IN PENNSYLVANIA. 729 
 
 by a wife for a debt contracted for the improvoment of her real 
 estate, is held to be absolutely void, she may agree to revive a 
 judgment which was entered on a bond executed by her. before 
 marriage. {Bruner's appeal, 4 Am. Law Beg. [iT. 8.\ 254. 8. O. 
 47 P«'m. B. 67.) 
 
 It was not the intent of the legislature, in passing the married 
 woman's act of 1848, to change the marital relation, or to place the 
 wife upon the footing of a feme-sole. It was intended to preserve 
 to her, and to protect her honafde separate estate, but not to make 
 the law a means of fraud, or the wife a receptacle of her husband's 
 means, into which they could be clandestinely thrown to the prej- 
 udice of his creditors. It is now well settled by the authorities 
 that evidence that the wife purchased real or personal estate 
 amounts to nothing unless it be accompanied by clear and full 
 proof that she paid for it with her own separate funds — not that 
 she had the means of paying, but that she in fact thus paid. ■ This 
 is regarded by the court as a definite, precise and just rule. (Gault 
 V. Saffin, 44 Penn. B. 307. Yide also Bhoads v. Gowen, 38 ib, 
 277. Aurand v. Sohaffer, 43 il. 363.) But if it distinctly appears 
 that the purchase of property by the wife was paid for as far as 
 payments were made with the money of the wife, who at the time 
 had ample means distinctly shown, from other sources, while her 
 husband was a man of no property, and the judgment levied upon 
 the property was obtained after her rights had fully vested ; under 
 such special circumstances the courts will sustain the title of the 
 wife to the property, and permit her to hold it independent of her 
 husband or his creditors. {Conrad <y. Shomo, 44 Pennsyl/vam,ia 
 B. 193.) 
 
 It seems, however, that a married woman who has no separate 
 estate cannot, as against her husband's creditors, acquire a title to 
 property sold as his at sheriff's sale, by repurchase from the pur- 
 chaser, and giving a mortgage on the property for the whole 
 purchase-money. The court, in deiciding the case, said : " "We 
 adhere to the settled doctrine that it is only when the property 
 acqiuired after marriage has been paid for with her own separate 
 estate, clearly and satisfactorily established, it -is hers, and is pro- 
 tected from her husband's creditors. To suffer a wife to purchase 
 on credit, is to open a wide door for fraud. Its effect is to throw 
 upon the creditors the burden of proving whose funds afterward 
 enter into the payments. For, starting with title founded on her 
 92 
 
730 LAW OF COVERTURE, 
 
 credit, she must stand upon it until the husband's means can be 
 shown to enter into the purchase." Barringer v. Stwer, 4 Am.. 
 Law Beg. [If. S.} 559. S. 0. 49 Perm. B. 129.) 
 
 Tlie declaration of the husband that certain property belonged 
 to his wife is not admissible as evidence in favor of the wife; and 
 the mere possession of money by a wife is no evidence of her title 
 to it for the purposes of the statutes of the commonwealth ; such 
 possession ordinarily implies that she is holding it for her husband. 
 Ij; is held further that the mefe gift of money by the husband to 
 the wife is not a settlement of it as her separate estate. {Parvin 
 V. Cwpewell, 3 Am. Law Beg. [JST. S.^ 575. 8. 0. 45 Penn. B. 89.) 
 
 The rent of real estate bought by a married woman, who had 
 with her husband given a mortgage for the purchase-money, cannot 
 be attached by one of the creditors of the husband for a debt con- 
 tracted by him after the purchase. {Goff v. Wuttall, 3 Am. Law 
 Beg. [i\r. S.l 309. S. C. 44 Penn. B. 78.) 
 
 In Pennsylvania, dower and curtesy attach to both legal and 
 equitable estates ; although the widow's interest does not come 
 within the ordinary definition of dower, but it is a statutory pro- 
 vision in lieu of that made by the common law ; it has all the 
 inbidents of dower at common law and is a freehold estate. {Dubs 
 V. Diibs^ 32 Penn. B. 149. Kurtz^s appeal, 26 ih. 465. Bachman 
 V. Chrismai},, 23 ib. 163. Smithes appeal, ib. 9. ZeigUr's appeal, 
 lb. 173. Thomas v. Simpson, 3 Ib. 60. Power v. Power, 7 Watts 
 B. 212. Pringle v. Oaw, 5 Serg. <& Bawlis R. 536.) * 
 
 § 543. In the State of Delaware, the common law governs as a 
 general thing in respect to husband and wife, although some 
 changes have been made by statute. For example, the will made 
 by a husband before his marriage does not affect his widow. She 
 takes the same share of his estate as though the husband died 
 intestate. {Be/v.8tat.ch.%'^,%'iiZ^ Again, if the husband abandon 
 his wife, the court may provide for the support of the wife and her 
 , children, if she have any, out of the property of the delinquent 
 husband. {B&o. Stat. ch. 48, § 15.) And the statute expressly declares 
 that the wife has no power to make a power of attorney. {Bev. 
 Stat. ch. 83, § 13.) 
 
 • Mr. Cord, in his work on the rights of married women, lias given the statutes of Pennsylvania 
 with respeet to marital rights tolerably full, together with a statement of many points settled by 
 the authorities under those statutes, which has rendered essential aid in making this compilation. 
 {CorcTs Busband and Wife, 653-073.) 
 
MARITAL RIBSTS IN MARYLAND. 731 
 
 The courts hold in Delaware that the husband takes the wife's 
 property by force of the marital right, and not as a purchaser, 
 and he therefore takes the rights of the wife subject to all equities. 
 {Gol&tnan v. Waples, 1 Harring. E. 196.) 
 
 The Delaware courts also hold that a married woman's covenant 
 to convey land will not bind her, and cannot be pleaded as an 
 estoppel. {Hersey v. Hersey, i Harring. B. 517.) 
 
 It is likewise held that a court of law will not recognize a 
 married woman's right to transact "business and acquire property 
 independent of her husband. {Johnson v. Johnson, i Harring. 
 B. 171.) 
 
 A married woman in Delaware cannot make a valid deed of her 
 own land so as to bind herself without her husband. {Harris v. 
 Burton, 4 Hwrring. R. 66.) 
 
 § 544. In the State of Maryland it is provided by statute that 
 the property, real and personal, belonging to a woman at the time 
 of her marriage, and all property which she may acquire or receive 
 after her marriage, by purchase, gift, grant, devise, bequest, or in 
 a course of distribution, shall be protected from the debts of the 
 husband, and not in any way liable for the payment thereof, except 
 that no acquisition of property passing to the wife from the hus- 
 band after coverture shall be valid if the same has been made or 
 granted to her in prejudice of the rights of his subsisting creditors ; 
 and the property thus acquired or owned by a married woman, 
 she will hold for her separate use, with the power of devising the 
 same as fully as if she were a feme-sole, or she may convey the 
 same by a joint deed with the husband ; provided, that if she die 
 intestate, and leaving children, her husband shall have a life estate 
 in her property, real and personal, but if she die intestate, leaving 
 no children, her husband shall have a life estate in her real prop- 
 perty, and her personal property shall vest in him absolutely. It 
 is not necessary for a married woman to have a trustee to secure 
 to her the sole and Separate use of her property ; but if she desires 
 it, she may make a trustee by deed, her husband joining in tho 
 deed, or she may apply to a court of equity and have a trustee 
 appointed,' in which appointment the uses and trusts for which the 
 trustee holds the property must be declared. (1 Gen. Laws, art. 
 45, §§1,2, 3.) 
 
 Curtesy and dower are allowed in lands held by equitable title, 
 but not to the prejudice of any claim for the purchase-money of 
 
732 LAW OF COVERTURE. 
 
 the lands, or other lien on the same. (1 General Laws, art. 45, 
 §§ 5, 6.) 
 
 § 545. The statutes of this state also provide that any married 
 ■woman who by her skill, industry, or pei-sonal labor shall earn 
 fsiiij money, or other property, real, personal or mixed, to the value 
 of one thousand dollars or less, over and above her debts, may hold 
 the same and the fruits, increase and profits thereof to her sole and 
 separate use, with power as a feme-sole to invest and re-invest 
 and sell and dispose of the same ; provided that the same shall 
 be liable for the payment of any claim or debt incurred by such 
 married woman, and be liable to be proceeded against by attach- 
 ment or in equity at the election of the creditor. (1 Gen. Laws, 
 art. 45, § 7.) 
 
 Any married woman may convey her real and personal property, 
 if her husband joins in the conveyance, whether the conveyance 
 be absolute or by way of mortgage, and she may execute and 
 acknowledge any deed, mortgage or bill of sale, in the same man- 
 ner as other grantors or bargainers vdthout any private examination 
 or other ceremony, and she may relinquish her dower in any real 
 estate by the joint deed of herself and husband, or by her separate 
 deed. (1 Gen. Laws, art. 45.) 
 
 Provision is also made for a married woman to effect an insur- 
 ance upon the life of her husband for her sole and separate use. 
 (1 Gen. Laws, art. 45, § 8.) 
 
 § 546. "Whenever lands are leased to a roiarried woman, she 
 becomes liable to pay the rent reserved, and distress may be made 
 for such rent, the same as though she was a feme-sole, or an action 
 may be brought against her to recover the said rent in the same 
 manner as against a feme-sole, and a married woman may bind 
 herself in her conveyance of real estate, by any covenant running 
 with the land, the same as a feme-sole. {Laws of 1867, ch. 223.) 
 
 The Maryland court of appeals have held, that when a married 
 woman entitled to a distributive share of the proceeds of sale of 
 real estate sold under a decree of a court of equity, for partition, 
 after final ratification of sale, a compliance with the terms of 
 sale by the purchaser and the filing of the creditor's report and 
 account, died intestate and without issue, her surviving husband 
 was entitled to the wife's distributive share of the proceeds of the 
 pale. Such a sale was held to render the conversion of the land 
 into personalty complete. {Jones v. Plummer, 20 Md. H. 416.) 
 
MASITAL SIQST8 IN MARYLAND. Y33 
 
 All covenants, contracts and agreements of & feme-covert, except 
 in regard to her separate property, are absolutely null and void, at 
 law as well as in equity, and she is under no obligation, and can- 
 not be compelled to perform them, whether made by herself, or on 
 her behalf, by her husband, with or without his consent. {Norris 
 V. Lautz, 18 MA. R. 260.) This rule is a little modified, as will 
 be observed, by the laws of 1867, in this section contained. 
 
 A promissory note signed by a feme-covert cannot be enforced 
 against her by any proceeding at law ; a judgment by default 
 against her, when sued at law on such note, is a nulUty, and 
 enforcement of it against her separate estate may be restrained in 
 equity by injunction. The principle that a party cannot impeach 
 a judgment on any ground which might have been pleaded or 
 rehed on as a defense to the suit, does not apply to a case when 
 the defendant is & feme-covert, and not nd juris. {Oriffithy. 
 Clarice, 18 Md. E. 457. Bridges v. MoKenna, U Ih. 258.) 
 
 § 547. The court of appeals of Maryland have held that, at law, 
 the right of the husband to release a legacy bequeathed to his wife, 
 so as to bar her interest in it, is indisputable. This power of a 
 husband over money to which the wife might become entitled by 
 bequest, does not appear to have been restricted in Maryland? 
 by any legislative act, until it was suspended by 1 Code, article 
 45, section 2, which provides that the property bequeathed to the 
 wife shall be held for her separate use. The provisions of the act 
 of 1853, chapter 245, operated to protect the property of a wife 
 thus acquired, from the creditors of the husband, but did not affect 
 the husband's marital rights or power over it. ( Weems v. Weems, 
 19 Md. B. 334.) 
 
 The courts of Maryland hold that a married woman, having a 
 separate estate, cannot affect that separate estate unless the obliga- 
 tion sought to be enforced presents, upon its face, some evidence 
 of the intent to charge the estate, or there be evidence, aliunde, 
 tending to prove such intent. {Koontz v. Nolle, 16 Md. R. 549.) 
 
 Where personal property is given to a fem^covert to her sepa- 
 rate use simply, without restricting her power of disposing of it, 
 or prescribing the mode in which that power is to be exercised, 
 she may act, in reference to the disposition of it, as a feme-sole. 
 {Chew V. Beall, 13 Md. R. 348.) 
 
 The statutes of Maryland, relating to the rights of married 
 women, simply protect the property of the wife from the debts of 
 
T34 LAW OF COVERTURE. 
 
 the Imsband during her life, but in no other way interfere with his 
 marital rights and control over it. {Schindel v. Schi/ndel, 12 Md. 
 B. 294.) 
 
 . A married woman becoming seised of land by cbnveyance under 
 the act of 1842, chapter 293, section 1, is vested with the estate in 
 fee simple ; not, however, to her sole and separate use, but subject 
 to the marital rights of the husband,- as a tenant by the curtesy. 
 {Mutual Insv/rwnce Co. v. Deale, 18 Md. B. 26.) 
 
 CHAPTER XXXYI. 
 
 THE ETATUTOET PECtTLIAEiriES OF THE WESTEEN STATES^LAWS OF 
 OHIO, MICHIGAN, INDIANA, ILLINOIS, WISCONSIN, MINNESOTA, IOWA, 
 MISSOUEI, KANSAS, NEVADA, NEBEASKA, OEEGON AND OALIFOENIA, 
 IN EESPECT TO MAEEIED WOMEN AND MAKITAi EIGHTS — ^JUDICIAL 
 CONSTEtrcnON AND DECISIONS. 
 
 § 548. In the State of Ohio, any married woman whose, husband 
 shall desert her, or from intemperance or other cause become 
 incapacitated, or neglect to provide for his family, may, in her own 
 name, make contracts for her own labor, and the labor of her minor 
 children, and in her own name sue for and collect her own or their 
 earnings. So also the interest of any married man in the real 
 estate of his wife belonging to her at the' time of their intermar- 
 riage, or which may have come to her by devise, gift, or inherit- 
 ance during coverture, or which iwaay have been purchased with 
 her sole and separate money or other property, and, during her 
 coverture, shall have been deeded to her, or to any trustee, in 
 trust for her, cannot be taken, by any process of law or chancery, 
 for the payment of his debts during the life of the wife, or the 
 life or lives of the heir or heirs of her body. No interest of the 
 husband in any chose in action, demand, legacy or bequest of his 
 wife is liable to be taken by any process for the payment of his 
 debts, unless reduced to possession by him, so as, by the rules of 
 law, to have become the owner thereof in his marital right ; and 
 all articles of furniture and household goods which a wife shall 
 have brought with her at marriage, or which shall have come to 
 
MASITAL RIGHTS IN OHIO. YSS 
 
 her by bequest or gift, or which shall have been, after marriage, 
 purchased with her separate money or other property, are declared 
 to be exempt from liability for the debts of her husband during 
 the life of the wife, and during the life of any heir of her body. 
 (1 Bm}. Stat. ch. 55, §§ 3, 4, 6, 7.) 
 
 § 5i9. Under the statutes of Ohio, it has been held that a deed 
 made without consideration, and purporting to be a conveyance of 
 real estate from a husband du'ectly to his wife, is void, both at law 
 and in equity, {fowler v. Trebein, 16 Ohio St. B. 493.) All con- 
 veyances and incumbrances of a husband's interest in hia wife's 
 land described in the statute, unless made or created as therein 
 required, are held to be absolutely void as to the wife, if the hus- 
 band's interest accrued after the taking effect of the statute. They 
 are not void merely, as against a claim by the wife for her support, 
 but as to her^ they are void to all intents and purposes, and it is a 
 question of doubt whether they have any validity as to the hus- 
 band. {Jenney v. Grey, 5 Ohio St. R. 45.) 
 
 The act of April 17, 1857, securing to married women such per- 
 sonal property as may be exempt from execution, prohibits the 
 husband from the sale, without the wife's consent, of any property 
 which would be exempt if an execution had been levied thereon, „ 
 and he, in good faith, had asserted the exemptions secured to him' 
 by the statute. The act confers upon the wife, when property thus 
 exempted has been sold without her consent, an election to main- 
 tain an action against the purchaser for the specific property sold, 
 or a suit to recover its value. {Slauson v. JBeardsley, 9 Ohio St. B. 
 589. Vide also Cohoell v. Ga/rper, 15 *5. 279.) 
 
 A deed made by a married woman, not in conformity with the 
 statute, her husband not joining with her in the conveyance, is 
 held to be a nullity : and as a conti'act for a conveyance is alike 
 •Boid, and the failure of the husband to join in the conveyance, is 
 not an " omission " within the meaning of the proviso of the 
 twenty-eighth section of the second article of the constitution, so as 
 to be cured by a judgment rendered in accordance with the provis- 
 ions of the act of April 17, 1857. {Miller v. Eine, 13 Ohio St. B. 
 S65. Gashom v. Purcell, 11 ih. 641-646.) 
 
 A widow who in the life-time of her husband united with him 
 m a mortgage of lands, of which he was seised in fee, has in 
 equity a right to redeem ; and a foreclosure, during the life-time 
 of the husband, in .chancery, to which the wife is not a party, does 
 
736 LAW OP COVERTURE. 
 
 not bar her equity of redemption. {MoArthur v. FrcmMm, 15 
 Ohio JSt: JR. 4k85.) 
 
 A married woman in Ohio may dispose of her property by will ; 
 and the will of a feme-sole is not revoked by her subsequent mar- 
 riage. The husband must be joined with the wife in all actions in 
 which she is a party, except those concerning her separate property, 
 when she may sue by her next friend, as she may when the action 
 is between herself and her husband ; except when she sues her hus- 
 band for divorce or alimony, she sues alone. 
 
 § 550. In the State of Michigan the statutes have given power 
 to a, married woman to enjoy, contract, sell, transfer, mortgage, con- 
 vey, devise or bequeath her property, in the same manner, and 
 with the like effect as if she were unmarried. (2 Cortvp. Laws, § 
 3292.) When property stands in trust for her, the trustees are 
 authorized to. transfer the same to her. (2 Cormp. Laws, § 3293.) 
 1 Under these statutes the supreme court of the state has held that 
 the husband can convey real estate to his wife by deed directly, 
 without the intervention of a trustee. The court holds that the 
 statute evidently designs to do away with indirect dealings between 
 husband and wife, and make the rights of the wife legal instead of 
 equitable, observing, " to require a husband (who is not supposed 
 to be under her control or fear) to go through the farce of convey- 
 ing to some one else, who is at once to pass the property over to 
 his wife, is to keep up a fiction which has not even a legal basis 
 to support it, since the husband has ceased to have possessory 
 claims over her property. He is now in law a stranger to her 
 estate during coverture, instead of its possessor and manager. * * 
 Whatever protection she may require when dealing with him, he 
 certainly never was supposed to need any against her. Believing, 
 as we do, that the basis of the common law disability was in the pecu- 
 liar disqualifications and burdens of the wife, and that the removal 
 of these removes all the reasons which ever required the interven- 
 tion of equitable trusts, we think there is now no objection to a 
 deed from husband to wife, which should render it invalid." 
 {Amperse v. Burdeno, 5 Am. Law Beg. [N. S.'\ 2T5, 280.) The wife 
 may transfer and convey her own property without the consent of 
 her husband. (Farr v. Sherman, 11 Mich. R. 33. Watson v. 
 Thurber, 11. 457.) 
 
 The rule which allows the husband to convey his own property 
 directly to his wife does not seem to apply with all its force in casp 
 
MARITAL BIGHTS IN INDIANA. 737 
 
 of a transfer from the wife to her husband. The supreme court 
 has held that a husband who, under the pretense of a contract 
 obtains his wife's property for a consideration entirely nominal, 
 which neither benefits her nor really incommodes him, is bound to 
 make clear and satisfactory proof of fair dealing, or a court of 
 equity will set aside the transfer. (Stiles v. Stiles, 5 Am. Law 
 Reg. [N. S.'\ 252, 253. S. C. 14 Mioh. B. 72.) 
 
 § 551. The statute empowering a married woman to contract, 
 Bell, and dispose of her property the same as if she were unmarried, 
 does not authorize her to engage generally in a business of a com- 
 mercial nature, to be carried on mostly on the credit of the business 
 and with the money derived therefrom, so as to make the proceeds 
 her own. Where a married woman, being owner of a grist-mill, 
 nominally entered into the business of buying, flouring and selling 
 wheat on a large sdale, and the business was done by her husband 
 acting ostensibly as her agent, and was done principally upon the 
 credit of the business ; and the husband being indebted, one of 
 his creditors levied upon some of the personal property in the busi- 
 ness as his, the court held that the wife could not maintain an 
 action against the officer for the property levied upon. {Glover x, 
 Aleott, 2 Am. Law Reg. [iV^. S."] 696. S. O. 11 Mich. R. 471.) 
 
 When a married woman beej)s a boarding-house with the consent 
 of her husband and controls the entire business, contracts of pur- 
 chase made by her for the purpose of such biisiness must be con- 
 sidered as contracts in relation to her sole property, and therefore 
 binding upon her. {Tillman v. ShaJcelton, 15 Mich. B. 447.) 
 
 Under the act of 1855 {Oorwp. Laws, p. 966) a wife can make 
 a mortgage to secure her husband's debts, and the same may 
 be executed in the same manner as though she was a fem^sole, and 
 will bind her lands which are covered by the mortgage, ( Watson 
 V. ThMvler, 11 Mich. B. 457.) 
 
 § 552. In the State of Indiana it is provided that the personal 
 property of the wife held by her at the time of her marriage, or 
 acquired during coverture by descent, devise or gift, shall remain 
 her own property to the same extent and under the same rules as 
 her real estate so remains, and on the death of the husband before 
 the wife, such personal property shall go to the wife, and on the 
 death of the wife- before the, husband, shall be distributed in 
 the same manner as her real estate descends, and is apportioned 
 under the same circumstances. (1 Bev. Stat. 1862, j?, 295, note 2.)' 
 93 
 
738 LAW OF COVERTURE. 
 
 Under this statute it has been held that the personal property 
 of the wife held by her at the time of her marriage, remains her 
 separate property. ( Williams v. Miller, 9 2nd. R. 100.) 
 
 "When a feme-sole, being the payee of a promissory note, mar- 
 ried prior to this act, it was held that the husband acquired 
 a property in the note, and he alone can pass it by indorsement, 
 and he could sue upon it without joining his wife. The husband's 
 right to the note in such case vested at the time of the enactment 
 of the statute, and was not affected by the enactment. {Holland 
 V. Moody, 12 Itid. B. 170.) 
 
 A promissory note given to a feme-covert for money belonging 
 to her before her marriage, and remaining her separate property 
 afterward cannot, under the statutes of Indiana, be pleaded as a 
 set-off in a suit against her husband. {McCarty v. Mewhinney, 8 
 Ind. R. 513.) 
 
 By the statutes of Indiana, a married woman cannot convey her 
 separate property, either real or personal, without the consent of 
 her husband. {Ruse v. Cochran, 10 Ind. R. 195.) 
 
 § 553. "With respect to the real estate of the wife in the State of 
 Indiana, it is provided that no lands of any married woman shall 
 be liable for the debts of the husband, but such lands and the 
 profits therefrom are declared to be her separate property, as fully 
 as if she was unmarried, although she has no power granted her to 
 incumber or convey such lands except by deed, in which her hus- 
 band shall join. (1 Rev. Stat. ch. 77, § 4.) 
 
 Under this statute a feme-covert is authorized to join with her 
 husband in the execution of a conveyance of real estate, but she 
 cannot be bound by any of the covenants contained in the convey- 
 ance. {Aldridge v. BurUson, 3 BlacTcf. R. 201.) 
 
 If a widow having an estate in dower marry, her husband, and 
 those claiming under him, have a right to the enjoyment of the 
 premises during the existence of the marriage. However, if the 
 wife after such marriage, be divorced a vinculo matrimonii, 
 the estate is thereby restored to her. {Doe v. Brovm, 5 BlacJcf. 
 R. 309.) 
 
 A feme-covert, under the statute of the state, cannot alien her 
 real estate unless her husband join in the conveyance. {Scoit v. 
 Puroell, 7 Blaclcf. R. 66.) 
 
 If the husband sell the lands of his wife for his own benefit, 
 with an agreement with her that he will purchase other land of 
 
JIIASITAL SIGSTS IN INDIANA. Y39 
 
 equal value for her, and, in pursuance of such agreement, buys 
 lands and takes the conveyance to his wife, it is held that the 
 lands thus conveyed will not be subject in equity to the debts of 
 the husband contracted after he paid for the lands, but before the 
 conveyance. {Bamett v. Gering, 8 Blackf. R. 284.) 
 
 Debts contracted by the wife on the faith of her separate prop- 
 erty are not, in a legal sense, an incumbrance upon such separate 
 estate, and are, therefore, not embraced in the restriction of the 
 statute, which provides that the wife shall have no power to 
 incumber or convey lands constituting her separate estate, " except 
 by deed in which her husband shall join." (Kautrowits v. Pra- 
 ther, 6 Am. law Reg. \_N'. 8:\ 602.) 
 
 The statute does not in any way impair the husband's rights in 
 the real estate of his wife held before the statute was enacted, pro- 
 vided the marriage was also entered into prior to the statute. 
 {Junction Railroad Co. v. Ha/rris, 9 Ind. R. 184.) 
 
 The separate deed of the husband will convey no interest in the 
 wife's land. . (1 Reo. Stat. ch. 76. § 6.) 
 
 All suits relative to the lands of the wife must be prosecuted by 
 or against the husband and wife jointly, except they are separated, 
 and then in the name of the wife alone ; and, in case of a separate 
 suit, the husband will not be liable for costs. (1 Rev. Stat. ch. 
 76,§7.) 
 
 § 554. When the wife receives money during coverture, which 
 is left under the control and management of the husband, and 
 which they both treat as her separate property, the jury may find 
 from these circumstances that the wife is the sole owner. (Swing 
 V. Gmtf, 12 Ind. R. 64.) 
 
 Although the presumption is that money of the wife reduced to 
 possession by the husband during the marriage becomes his, such 
 presumption is not conclusive, and the husband may so treat it as 
 to charge himself and his heirs as the trustees of the wife, with the 
 duty of applying it to her separate use. {Resor v. Resor, 9 Ind. 
 R.'Zil. Totten v. McManus, 5 ib. 407.) 
 
 In an action in relation to her separate property, a wife may, 
 under the statutes of Indiana, sue her husband without prochein 
 ami, except she be under twenty-one years of age. ( Wilkins v. 
 MiOm; 9 Ind. R. 100.) 
 
 § 555. It is provided by the statutes of Indiana that when a 
 married man shall absent himself from the state, abandon his wife, 
 
740 LAW OF COVBBTURE. 
 
 and not making sufficient provision for her maintenance, if the 
 wife is of the age of twenty-one years, the circuit court, or court 
 of common pleas of the county in which she resides, may, on her 
 petition, authorize her to sell and convey her real estate, or any 
 part thereof, and also any personal estate which shall at any time 
 have come to her husband by reason of the marriage, and which 
 may remain within the state undisposed of by him. The court 
 may also authorize any person holding money or personal property 
 to which the husband is entitled in right of the wife, to deliver it 
 to the wife, and authorize her to give a discharge for the same. 
 And it is further provided that during such absence of the hus- 
 band the -^-ife shall be entitled to receive payment for her labor 
 a;nd that of her minor children, in the same manner as if she were 
 sole, free from the control of her husband, and from all liability 
 for the payment of his debts of any description. And all the pro- 
 ceeds of all sales, and all other money and personal property 
 coming td the hands of the wife under the authority mentioned, 
 may be used and disposed of by her during the absence of her 
 husband as her own property, in the same manner as if she were 
 unmarried. 
 
 The court may also authorize such married woman to make any 
 contract under seal or otherwise, in her own name, and also to 
 commence, prosecute and defend any suit at law to a final judg- 
 ment and execution in like manner as if she were unmarried ; and 
 when so authorized may execute all papers', and do all other acts 
 that may be necessary or proper to carry into efifect the power so 
 granted to her. All the powers thus granted to a married woman 
 will continue and may be exercised by her until her husband shall 
 return into the state and claim his marital rights. The wife will 
 be liable to be sued- on all contracts executed by her under the 
 powers thus granted her, and no suit against her in regard to any 
 such contract will abate by reason of the retui-n of her husband 
 but the husband may be admitted to defend the action ; and any 
 judgment against the wife in such case may be enforced against 
 the husband. {Act of March 4, 1857, Lcms of 1857, p. 92. 1 
 Eev. Stat. pp. 375, 376, § 1-11.) 
 
 In case the husband absents himself from his home, his wife may , 
 exercise the rights that the husband could in all cases of attachment 
 or execution against his property. {Laws of 1857, p, 94. 1 Eev. 
 Stat. p. 377.) ^ 
 
MABITAL RIGHTS IN ILLINOIS. -741 
 
 § 556. Married women in Indiana of full age and of sound mind, 
 are authorized by statute to execute a will, and by it devise any 
 interest descendible to their heirs, which they have in any lands, 
 tenements, and hereditaments, or in any personal property, to any 
 person or corporation. In this respect they are placed upon the 
 same footing with their husbands. (2 Rm. Stat, part i, ch. 3, § 1.) 
 
 If a husband die testate or intestate leaving a widow, one-third 
 of his real estate will descend to her in fee simple free from all 
 demands of creditors ; provided, that if the real estate exceeds in 
 value ten thousand dollars, the widow will take but one-fourth ; 
 and if it exceeds in value twenty thousand dollars, as agaijist 
 creditors, she will take but one-fifth, and, with this proviso, a sur- 
 viving wife is entitled to one-third of all the real estate of which 
 her husband may have been seised in fee simple at any time during 
 the marriage, and in the conveyance of which she may not have 
 joined in due form of law ; and also of all the lands in which her 
 husband had an equitable interest at the time of his death ; pro- 
 vided, that if the husband shall have left a will, the wife may elect 
 to take under the will instead of the provisions of the statute above 
 stated. (1 Bev. Stat. ch. 46, §§ 17, 19, 20.) 
 
 Tenancy by the curtesy and in dower is abolished by the statutes 
 of the state, and it is unnecessary, therefore, to refer to the numer- 
 ous decisions of the courts upon this' subject, which were reported 
 before the estate was abolished. (1 Hev. Stat. 46, § 16.) 
 
 The husband does not, under the statutes of Indiana, acquire any 
 legal interest or estate in the lands of the wife, but the same and 
 the profits thereof remain her separate property. {Davis v. Clarh, 
 26%<Z. R. 424.) 
 
 § 557. In the State of 'Illinois, an act was passed by the general 
 assembly on the twenty-first day of February, 1861, entitled " An 
 act to protect married women in their sepa,rate property," which 
 provides that all the property, both real and personal, belonging 
 to any married woman, as her sole and separate property, or which 
 any woman hereafter married owns at the time of h-er marriage, 
 or which any married woman during coverture acquires in good 
 faith, from anyiperson, other than her husband, by descent, devise, 
 or otherwise, together with all the rents, issues,,increase and profits 
 thereof, shall, notwithstanding her marriage, be and remain, during 
 coverture, her sole and separate property, under her sole control, 
 and be held, owned, possessed and enjoyed by her the same as 
 
742 LAW OF COVERTURE. 
 
 thongli she was sole and unmarried ; and shall not be subject to the 
 disposal, control, or interference of her husband, and shall be 
 exempt from execution or attachment for the debts of her husband. 
 {Laws of 1861,^. 143.) 
 
 Under this statute, the supreme court of the state have decided 
 that a feme-covert must be considered a feme-sole in regard to her 
 estate of every sort owned by her before marriage, or which she 
 may acquire during coverture in good faith from any person not 
 her husband, by descent, devise or otherwise, together with all the 
 rents, issues, increase and profits thereof; and that the same is to be 
 under her " sole control," and to be held, owned, possessed and 
 enjoyed by her the same as though she was sole and immarried. 
 By the statute the feme-covert is unmarried so far as her property 
 is concerned, and can deal with it as she pleases. Having the 
 "sole control" of it, she may bring actions in her own name, 
 without joining her husband to recover it, or for trespasses on it. 
 The object of the statute was to keep the wife's property out of the 
 control of her husband in any and every respect ; that the wife 
 should be wholly independent of him in regard to it. 
 
 The court say: "In the progress of civilization, an artificial 
 state of society has grown up incompatible, to some extent, with 
 that state of simplicity from which many rules of the common law 
 have been derived, and affecting in a serious degree the artificial 
 relations of society, and among them, that of husband and wife. 
 In these days of excitement and speculation, by which fortunes are 
 wrecked in a moment, and the innocent made to suffer for no mis- 
 conduct of their own, it has been thought wise and expedient, by 
 the legislature of this and of other states, to protect the property of 
 married women, not only from such catastrophies, but to remove it 
 entirely from the control of her husband, and making her, as it 
 regards such property, to all intents and purposes a single women." 
 The court therefore decided that a married woman, imder the act, 
 may bring an action at law in her own name, in all matters con- 
 cerning her separate property, without joining her husband; 
 adding : " "We are well satisfied the act can have no very beneficial 
 operation in favor of married women, to be effective in the protec- 
 tion of her separate property, unless the 'sole control' conferred 
 upon her over it, is made to extend to the commencement and 
 prosecution of suits for its recovery, even against her husband, 
 should he, contrary to her wishes, and in contempt of her rights, 
 
MARITAL EIGSTS IN ILLINOIS. 743 
 
 unlawfully interfere with it. * * * We see no otlier mode 
 by wliich this statute can be made effectual for the purposes con- 
 templated hy the legislature, than by holding the wife, as to her 
 separate property, capable of suing for its recovery in all courts." 
 {Emerson v. Clatjton, 3 Am. Law Beg. [W. S.^ 530-533. S. 0. 
 32 III. R. 493.) 
 
 The courts of Illinois hold that the domicile of the husband is the 
 domicile of the wife. {Damis v. Davis, 30 III. R. 180.) 
 
 § 558. When a feme-covert, owning real estate in her own right, 
 voluntarily mortgaged it to secure a debt due by her husband, the 
 courts of Illinois held it not to be contrary to equity and good con- 
 science that the debt should be paid out of this fund so set apart 
 for that purpose. {Toung y. Graff, 29, lU. R. 20,2%.) But it is 
 held that a married woman, who has a separate estate, cannot part 
 with it, or charge it in any way, without an examination, as by 
 marriage she loses all the powers of a feme-sole. A separate estate 
 does not confer all those powers on her, and, therefore, the power 
 of appointing such estate must be expressly given, and the mode pre- 
 scribed be strictly pursued. The weight of authority is held cleai-ly 
 to be, that a married woman can convey her trust property only in 
 the manner authorized, and for the purposes specified in the instru 
 ment creating the trust, if it contains any such provisions. {Swift 
 V. Oastle, 23 III. R. 209, 217, 222.)) Acting upon the principle 
 that the participation of the wife in the transfer of her real estate 
 must be free and unconstrained, the courts have held that an agree- 
 ment made by a, feme-covert, with the assent of her husband, to sell 
 her real estate, is absolutely void at the common law, and that such 
 contract cannot be enforced in equity in Illinois ; and the courts 
 further hold that a court of equity has no power to rectify and 
 reform mistakes in deeds made by married women for a conveyance 
 of their real estate, upon the ground that their deeds, to be effect- 
 ual, must be acknowledged freely and voluntarily, and in the 
 mode prescribed by statute. {Mbulton v. Hurd, 20 III. R. 137, 
 142, 143.) 
 
 It is held that a conveyance from the husband to a third party 
 creates in the wife an equitable estatfe, and, having an equitable 
 estate, she is entitled to redeem from a mortgage. So, a fem^- 
 covert may redeem her equitable estate in property conveyed by 
 her husband and herself to secure the payment of money loaned 
 to the husband, where the husband and wife continued to occupy 
 
T4:4 IiAW OF COVMBTUBE, 
 
 the premises as a jhomestead. {Whiteoml v. Sutherland, 18 III. 
 M, 678, 579.) 
 
 § 559i In the State of Wisconsin, the real estate, and the rents? 
 issues and profits thereof, belonging to any married woman, are 
 declared by statute to be her sole ancj separate property as if she 
 were a single female, and are not subject to the disposal of her 
 husband ; and the real and personal property of any female, which 
 she owns at the time of her marriage, and the rents, issues and 
 profits thereof, continue to be her sole and separate property, 
 and' are not subject to the disposal of her husband, nor liable for 
 his debts. The statute further provides that any married female 
 may receive by inheritance, or by gift, grant, devise, or bequest, 
 from any person other than her' husband, and hold to her sole and 
 separate use, and convey and devise, real and personal property, 
 and any interest or estate therein, and the rents, issues, and profits 
 thereof, in the same manner, and with like effect as if she were 
 unmarried, and the same are not subject to the disposal of her 
 husband, nor liable for his debts. {Eev. Stat. 1858, ch. 95, §§ 1, 2, 3.) 
 
 Under these provisions of the statute, it has been held that 
 married women can make all siich contracts as are necessary or 
 convenient to the beneficial enjoyment of their separate property, 
 and that such contracts are valid in law {Conway v. Smith, 13 Wis. 
 H. 125) ; but that all her other engagements stand as before the 
 passage of the statute, good only in equity. The change from 
 an equitable to a legal estate has not, with respect to her general 
 engagements, enlarged her powers or removed the disability of 
 coverture, but she remains as if still possessed of an estate in 
 equity without restriction as to the jus disponendi, capable of 
 charging it with debts incurred for her own. benefit, or the benefit 
 of her e^state, to its full extent ; and such charge may be enforced 
 in a civil action under the "Wisconsin Code of Procedure, although 
 the action should be in rem, not in personam, because the wife is 
 incapable of charging hQT&Q\S personally either in law or equity. 
 The courts further hold that injunctions and receivers in such 
 actions may be had to preserve'the property during the pendency 
 of the suits, and to convert the property and satisfy the debts, for 
 want of other process, after judgment. And, further, that the 
 husband is a proper party, but no personal demand can be made 
 against him in such cases. At common law, the personalty of the 
 wife ves,t3 absolutely in the husband, and, although he may be liable 
 
MARITAL RieSTS IN WISCONSIN. Y4'5 
 
 for her debts upon the principlea of agency, yet, even under the 
 Wisconsin Code of Procedure, to bind him or his property, a 
 separate action at law must be brought. This common law rule 
 has no application in such cases in equity ; and whether the hus- 
 band is liable or not, is a question for the jury. Therefore, where 
 a feme-covert, the owner of a separate estate under the enabling 
 statute, with her husband's permission, upon the faith and credit 
 of her separate estate, purchased goods and hired a store, and 
 engaged in ti'ade as if she were sole, failed to pay for the rent, 
 and refused to pay for the goods, because of coverture, in an 
 action brought to charge the rent and price of the goods upon her 
 separate estate, and to apply the goods left to liquidate the .claims 
 in suit, the court held that, as it is an established rule in equity 
 that a feme-covert may, with her husband's permission, given even 
 after marriage, become a sole trader, and hold the profits arising 
 out of her business to her sole and separate use, so, in equity, in 
 consideration of the benefit thus accruing to her separate property, 
 the court will charge the debts properly incurred in trade upon it, 
 and apply both her separate property and stock in trade to their 
 payment, through a receiver. {Todd v. Lee, 1 Am. Law Reg. 
 \n. S?^ 657. 8. G. 15 Wis. R. 365.) 
 
 § 560. In delivering the opinion of the court in Todd v. Lee 
 [suprd), Dixon, Ch. J., reviewed the authorities of New York 
 and other states, with marked ability, and, among other things, 
 remarked : " Before the case of Yale v. Dederer (22 N. Y. E. 450), 
 it was well settled in !N"ew York, if in fact any thing can ever be 
 said to be settled in that state, that a, married woman, hoAjing a 
 separate estate, might hind it iy her general engagements to pay 
 debts contracted for the benefit of mich estate, or on her own account, 
 or for her lenefit vpon the credit of it. * * * In England 
 a broader doctrine prevails. It has been decided that she may not 
 only bind her separate property by a general engagement, written 
 or 'parol, for her own benefit, or that of her estate {Murray v. 
 Ba/rhe, S M. c& K R 209 ; Owens v. Dickenson, 1 Or. dh Ph. R. 
 48), but that she can do so by the execution of a bond as surety fpr 
 her husband (2 AtTc. B. 69 ; 1 Bro. 0. O. R. 16) ; and for, a stranger 
 even. (15 Yesey's R. 596.) In Kentucky her separate estate 
 has been charged with the payment of a note executed as surety 
 for her son, and parol evidence of her declaration, made at the time 
 of executing it, that she would not pay it, and her separate property 
 94 
 
746 LAW OF COVEBTVEE. 
 
 should not go for that purpose, was excluded. (7 B. Mon. E. 293.) 
 The courts of New York, however, have held to a narrower rule, 
 and she has been restricted within the limits above stated. * * * 
 The contracts of a man-ied woman, when necessary or convenient 
 to the proper use and enjoyment of her separate estate, are bind- 
 ing at law. {Cowway v. Smith, 13 Wis. R. 125.) All her other 
 engagements stood, as before the passage of the statutes, good in 
 equity. The change from an equitable to a legal estate has not, 
 with respect to them, enlarged her powers or removed the dis- 
 ability of coverture, but she remains as if still possessed of an 
 estate in equity, without restriction as to the power of dispo- 
 sition. {Id. Wooster v. N'orthrups, 5 Wis. B. 245. Yale v. Dederer, 
 18 iY. Y. R. 265.) * * * Within all the authorities, the sepa- 
 rate estate of a married woman will be charged in equity with 
 the payment of debts contracted for her benefit." 
 
 § 561. Under the statutes of Wisconsin, the courts have held, 
 that, in trespass by a firm, one member of which is a married 
 woman, against an officer, for taking, on an execution against the 
 husband of the female plaintifi", goods which are alleged to belong 
 to the firm, it is necessary for the plaintiffs to show that the interest 
 of the female plaintiff in the goods was her separate estate. 
 {Duress Y. Sorneffer, 3 Am. Law Reg. \N. S:\ 509. S. G. 15 Wis. 
 R. 195.) In a suit to foreclose a mortgage against a subsequent 
 purchaser of the mortgaged premises, the answer of the defendant 
 that at the time of the' execution of the note and the mortgage, 
 the mortgagor was a married woman, was held bad on demurrer, 
 under the laws of the state. {Dodge v. Sil/oerthorn, 12 Wisconsin 
 R. 644.) 
 
 When services are performed by an attorney for a married woman 
 at her request, in reducing to her possession her separate estate, 
 the courts hold that the action of the attorney against such married 
 woman to recover his claim is properly at law and not in equity. 
 Dixon, Oh. J., in delivering the opinion of the court, said: "It 
 would seem to be not only very convenient but especially necessary 
 to the proper use and enjoyment of her separate estate, that a 
 married woman having such estate should have power to contract 
 Avith an attorney for his services in order to reduce the same or 
 any part of it to her possession, whenever it is wrongfully withheld 
 by another. It would also seem to be one of the essential attri- 
 butes of the unqualified dominion given by statute to a married 
 
MARITAL RIGBTS IN WISCONSm. 747 
 
 ■woman over laer separate estate, not only that she should be capa- 
 ble of entering into a contract of this nature with reference to such 
 estate, but that such contract should be binding at law : we think 
 it is." {Leonard v. Eagan, 20 Wis. H. 540, 542.) The same 
 doctrine has been enunciated in other cases, and it may therefore 
 be regarded as well settled under the statute of "Wisconsin, how- 
 ever it may be regarded in other states. ( Vide Conway v. Smith, 
 13 Wis. £. 125. Todd v. Zee, 15 ib. 365.) When a feme-covert, 
 with the assent of her husband, engages in business as a sole trader, 
 and contracts a debt for goods to carry it on, upon the faith of her 
 separate estate, the property which she holds to her sole and sepa- 
 rate use is chargeable with its payment. The decision in Todd v. 
 Lee {supra) was referred to and adhered to. In enforcing payment 
 of such debts out of the separate estate of the feme-covert, when 
 there is no writing constituting the debt a specific lien, it is held 
 that courts do not proceed upon the ground that the. transaction 
 creates a specific lien for the debt upon any particular property ; 
 but upon the ground that all her separate estate becomes charge- 
 able with a debt so contracted, through the intervention of a court 
 of equity ; and if several debts have been thus contracted at diifer- 
 ent times, the several creditors are to be paid pari passu. Pay- 
 ment of a debt thus contracted by & feme-covert on the faith of her 
 separate estate will be enforced as well against the separate estate 
 which she may thereafter acquire as that which she had when the 
 debt was created. {ToM v. Lee, 16 Wis. Li. 480.) 
 
 When a husband, a hotel-keeper, made an agreement with his 
 wife, "withoiit any valuable consideration, that she should keep the 
 hotel during his absence from the state, and have all the avails of 
 the business as her separate estate, the court held that her earnings 
 in such business were in law his property, and that she could not 
 maintain an action on a note purchased by her with such earnings. 
 {Stimson v. White, 20 Wis. B. 562. Vide also ElUott v. Bentley, 17 
 il. 591.) 
 
 § 562. The statute provides that any married woman whose hus- 
 band, either from drunkenness, profligacy, or from any other cause, 
 shall neglect or refuse to provide for her support, or for the support 
 and education of her children, and any married woman who may 
 be deserted by her husband, shall have the right in her own name 
 to transact business, and to receive and collect her own earnings 
 and the earnings of her own minor children, and apply the same 
 
748 LAW OF COVEBTUBM. 
 
 for her own support and the support and education of such children, 
 free from the control or interference of her husband, or any person 
 claiming the same, or claiming to be released from the same by or 
 through her husband. {Rev. Stat. ch. 95, § 4.) 
 
 It has been held by the supreme court of the state that the words 
 " any other cause," used in this statute, must be understood of 
 causes ejusdem generis, or to conduct tending to the same result as 
 drunkenness or profligacy, and do not include mere physical or 
 mental incapacity, unless it was caused by vice. But laziness, 
 idleness or indolence will be sufficient to enable the wife under the 
 provisions of this statute to act as a feme-sole. (Edson v. Hayden, 
 20 Wis. E. 682.) 
 
 The supreme coiirt has held that a married woman w'hose hus- 
 band has deserted her, and ceased to support his family, and has 
 left the state without any intention to return, cannot maintain an 
 action to set aside an assignment, made- by her husband, of a 
 school-land certificate, and to have the certificate delivered up to 
 her by the assignee, on the ground that the assignment was pro- 
 cured fraudulently, nor on the ground that the land embraced in 
 the certificate was, at the time of the assignment, occupied by the 
 husband and family as a homestea4,.ai)d that she refused to become 
 a party to the assignment. But if the assignment in such case is 
 void, the court held that the wife can maintain possession of the 
 homestead against the holder of the certificate. {Gre^en v. Lyndes,, 
 12 Wis. E. 404.) 
 
 § 563, The courts hold, in Wisconsin, that a husband may act as 
 the agent of his wife in transactions relating to her separate estate, 
 and may execute in her name a conveyance of her land under a 
 power of attorney. ( Weislrod v. Chicago and Worthwestern Eail- 
 way Company, 18 Wis. R. 35.) The courts have also held that, 
 though void at law, an absolute conveyance of real or personal 
 property from a husband directly to his wife is sufficient in equity 
 to vest the property in the wife as against all persons except the 
 creditors of the husband, especially when the transfer is fairly made 
 upon a meritorious or valuable consideration. {Putnam v. Bioknel, 
 18 Wis. E. 333.) 
 
 A wife has no power, by virtue of the marital relation merely, 
 to bind her husband by any contract made by her ; but he is bound 
 by such contracts only when it is shown, or the law pres\imes, that 
 she acted as his agent. {Savage v. Davis, 18 Wis. E. 608.) 
 
MABITAL BIGSTS IN MmimSOTA. 749 
 
 Under the statutes of Wisconsin, tenancies by the curtesy, in 
 cases where the wife dies intestate, still exist. The statute has not 
 abolished tenancies by the ciu-tesy in such 9ases. (Kmgsley v. 
 Smith, 14 Wis. B. 360.) 
 
 § 564. In the State of Minnesota, a general and beneficial power 
 may be given to a married woman to dispose, during the marriage, 
 and without the concurrence of her husband, of land conveyed or 
 devised to her in fee. And a married woman may execute a power 
 during her marriage by grant or devise, as may be authorized by 
 the power, without the concurrence of her husband, unless by the 
 terms of the power its execution by her during marriage is 
 expressly or impliedly prohibited ; but no power vested in a mar- 
 ried woman during infancy can be exercised by her until she attains . 
 her fuU age. {Oen. Stat. 1858, ch. 34, §§ 8, 38.) 
 
 The statutes of the state further declare that any real or per- 
 sonal estate which may have been acquired by any female before 
 her marriage, either by her own personal industry or by inheritance, 
 gift, grant or devise, or to which she may at any time after her 
 marriage be entitled by inheritance, gift, grant or devise, and the 
 rents, profits and income of such real estate, shall be and continuie 
 the real and personal estate of such female after marriage to the 
 same extent as before marriage; and none of such property is 
 hable for her husband's debts, engagements or liabilities ; though the 
 wife cannot give, grant, or sell any such real or personal property 
 daring coverture, without the consent of' her husband, excepl by 
 order of the district court of the county. {Gen. Stat. 1858, ch. 61, 
 § 106.) And if any married woman dies without disposing of such 
 real estate, the husband surviving her is entitled to a life estate 
 therein by the curtesy. {Gen. Stat. 1858, ch. 61, § 108.) 
 
 § 565. Where a husband transferred to his wife certain promissory 
 notes owned by him, in consideration of five hxmdred dollars in 
 money received from her own separate and individual property, 
 and soon afterward applied for a discharge from his debts under 
 the insolvent act, the court held that such transfer was not concln- 
 sive evidence of a fraudulent intent on the part of the husband, 
 even though he was insolvent at the time ; and, the referee having 
 found that the transfer was made in good faith, and not with the 
 intent to cover up the property of the husband, or to defraud his 
 creditors, the jndgment of the referee in favor of the defendants 
 was not disturbed on error. {Teller v. Bishop, 8 Minn. B. 226.) 
 
750 LAW OF COVESTUSJE. 
 
 The supreme court of the state further held, that a gift from a 
 husband to his wife of a promissory note directly and without the 
 intervention of a trustee, although a nullity at law, will be recog- 
 nized and enforced in equity, as against the maker of the note and 
 the husband, when the rights of creditors are not prejudiced 
 thereby. {TulUs v. Fridley, 9 Minn. R. 79.) 
 
 And still further, the court held in another case, that a convey- 
 ance of real estate by the husband directly to his wife will be upheld 
 as a suitable provision for her maintenance, when it appears to be a 
 fair transaction, not made in fraud of cz-editors and not unreasonable 
 in its amount, taking into consideration all the circumstances of 
 the case. ( WUder v. Brooks, 10 Mimn. R. 50.) 
 
 When a married woman sues for her separate property under 
 the statutes of Minnesota, her husband is not a necessary party, 
 plaintiff or defendant. {Nininger v. Commissioners of Carver 
 county, 10 Minn. R. 133.) 
 
 When a married woman objects to signing a deed of real prop- 
 perty, and is thereupon addressed by her husband in harsh, threat- 
 ening and abusive language, though not in the presence of the 
 acknowledging officer, and immediately thereafter in the presence 
 of her husband she acknowledges the same to be her voluntary 
 act, the court held that the presence of the husband is a coer- 
 cive presence, and the acknowledgment is not taken "separately 
 and apart" from her husband in the spirit and meaning of the 
 statute, and the instrument is ineffectual to pass her interest in 
 the land. {Edgerton v. Jones, 10 Minn. R. 427.) 
 
 And the court held in another case, that threats by a husband to 
 separate from his wife, accompanied by general abusive treatment, 
 will constitute duress so as to avoid a deed executed by her under 
 a reasonable apprehension that they will be carried into effect. 
 {Tapley v. Tapley, 10 Minn. R. 448.) 
 
 1 In the State of Minnesota they have a very liberal provision with 
 respect to the homestead, and the same cannot be sold or incum- 
 bered by the husband except his wife join in the conveyance or 
 incumbrance, and it is exempt from the husband's debts, although 
 the exemption does not extend to any mortgage on the homestead 
 lawfully obtained, but the same is declared not to be valid " with- 
 out the signature of the wife to the same, unless such mortgage 
 shall be given to secure the payment of the purchase-money or 
 some portion thereof." {Comp. Stat. p. 570, § 93.) Under this 
 
MARITAL RIGHTS IN IOWA. T51 
 
 provision, tte court holds that only the signature of the wife to a 
 mortgage of the homestead by her husband is reqiiired. {Lawver 
 V. Slingerland, 11 Minn. R. 447.) 
 
 § 566. In the State of Iowa, the personal property of the wife 
 does not vest at once in the husband ; but, if left under his control, 
 it will, in favor of third persons acting in good faith and without 
 knowledge of the real ownership, be presumed to have been 
 transferred to him, except that if the wife file with the recorder of 
 deeds a statement of the amount in value of such property, and a 
 notice that she has a claim therefor out of the estate of her hus- 
 band, then she will be a preferred creditor of her husband to that 
 extent. And specific articles of personal property may be owned 
 by the wife exempt from the husband's debts, although left under 
 his control, if notice is filed with the vendee of her ownership of 
 such property. (R&o. Laws 1860, ch. 101, §§ 2499, 2500, 2501, 
 2502. Tide also Smith v. Hewett, 13 Iowa H. 94. Odell v. Lee, 
 14 il. 411.) 
 
 Contracts made by a wife in relation to her separate property, or 
 those purporting to bind herself only, do not bind the husband ; 
 and married women abandoned by their husbands may obtain 
 authority from the district court of the county in which they* 
 reside to act and to transact business as though unmarried, and 
 then all deeds made, and receipts given, and discharges executed 
 and delivered, by the wife, in accordance with the power given by 
 the court, are declared valid. The husband has the same rights in 
 relation to the wife and her property as is given to the wife, and 
 he may have the same proceedings in like cases. The husband 
 cannot remove the wife nor their children from their homestead 
 without the consent of the wife ; and if he abandons her, she is 
 entitled to the custody of their minor children, unless the district 
 court, upon application for that purpose, shall, for good cause, 
 otherwise direct. {Rev. Loms, ch. 101, §§ 2506, 2508-2514.) 
 
 Married women may receive grants or gifts of property from 
 their husbands without the intei-vention of trustees ; but this pro- 
 vision applies only to form and manner, and leaves the substantial 
 rights of all parties unchanged. {Rev. Laws, ch. 92, § 2200.) 
 
 A married woman may convey her interest in real estate in Iowa 
 in the same manner as other persons. {R&o. Laws, ch, 95, § 2216.) 
 
 When a married woman is a party to an action, her liusband 
 must be joined with her, except that when the action concerns her 
 
752 LAW OF COVEETUSE. 
 
 separate property, or is founded on her own contract, she may siie 
 and be sued alone; and when the action is between herself and 
 husband, she may sue and be sued alone, and in no case need she 
 prosecute or defend by a guardian or next friend. {Rev. Lams, ch. 
 117, § 2771. And vide Kramer y. Conger, 1Q Iowa R. 434.) 
 
 § 567. When & feme-covert, by her contract, as a promissory note 
 or the like, becomes liable, she may sue and be sued at law, in the 
 same manner as any other person.- Generally, the liability of a 
 ferrie^covert upon her contract^ is not a personal liability, but it 
 only tends to and can only affect her separate property or estate ; 
 &vl^ prima facie a, feme-covert is still, in Iowa, unable to contract, 
 or to sue and to be sued. With reference to certain matters, how- 
 ever, by the statute, a feme-covert may contract, and sue and be 
 sued. But in order to make her liable in her separate property, 
 upon a contract entered into during coverture, it must be shown 
 that such contract related to the expenses of the family, or to other 
 purposes as contemplated by the Code, or that it related to her 
 separate property, or that the contract purports to bind herself only, 
 according to the provision of the statute. {Eodem^yer v. Rod 
 man, 5 Iowa R. 426.) 
 
 When a wife is deserted by the husband, and she continues to 
 live apart from him, and is dependent upon herself for a support, 
 she may sue and be sued alone, and, in the same case, the court 
 held, that to call a woman a " whore," is actionable of itself, 
 withoutproof of special damage. (Smithy. Silm,er,iIozoaR. 321.) 
 
 It was the main purposis of the Code of 1851 and the Revision of 
 1860, to protect the rights of married women in their property, but 
 not to invest them with power to make contracts of all kinds, sign 
 notes, become sureties for their husbands and others, and engage 
 in general business by executory contracts which can be enforcisd 
 in actions at law. An executory contract by a married woman to 
 purchase property is not " a contract in relation to her separate 
 property " within the meaning of section 2506 of the Revision of 
 1860. {Jones v. Crosthwaite, 17 Iowa R. 393.) 
 
 The earnings of a wife in Iowa, during coverture, are held to 
 belong to the husband, and are subject to the payment of his debts. 
 {Laing v. Cunningham, 17 Iowa R. 510. Duncan v. Roselle, 15 
 ii. 501.) 
 
 A feme-covert in the State of Iowa having the power to convey 
 her i-eal estate in the same manner as other persons, the courts there 
 
JITABITAL RIGBTS IN MISSOURI. Y63 
 
 hold that she may convey it to her husband, and in return or in 
 consideration thereof, receive from him a grant or conveyance of 
 other property, and that she may also, for a money consideration, 
 make or. execute to him a release of her interest in his real estate. 
 {Blalce V. Blake, 7 Iowa E. 46. But vide MoMullin v. McMulUn, 
 10 «i. il2.) 
 
 It has been held that a wife will be entitled in equity to obtain 
 a separate provision out of property held by her husband in h^r 
 right, only in case that he has deserted her without giving her 
 adequate means of support, or has forced her by cruel treatment to 
 leave him. (McMulUn v. MoMullm, sivpra.) 
 
 § 568. In the State of Missouri, when any married man shall 
 abandon his wife, or from worthlessness, drunkenness, or other 
 cause, fail to make sufficient provision for her support, the circuit 
 court of the county where she has her home aiid residence may 
 authorize her to sell and convey her real estate or any part thereof, 
 or any personal estate, which came to the husband by reason of 
 the marriage, and which may remain within the state undisposed 
 of by him. The court may also authorize auy person holding 
 money or other personal estate to which the husband is entitled in 
 her right, to pay and deliver the same to the wife, and authorize 
 her to give a discharge for the same. And, during the period her 
 husband shall fail to provide for her as above stated, the wife is 
 entitled to the proceeds of her own earnings, and also to the pro- 
 ceeds of the earnings of her minor children ; and the same are 
 declared to be under her sole control, and exempt from her hus- 
 band's debts ; and all the proceeds of such sales, and all other 
 money and personal estate which shall come to the hands of the 
 wife by force of the above provisions, may be used and disposed of 
 by her, during the absence of her husband, for the necessary sup- 
 port of herself and family. 
 
 The statute further provides that when any married man shall 
 be sentenced to and shall be confined in the state penitentiary, his 
 wife, during his confinement shall be deemed a feme-sole, so far as 
 to enable her to carry on and transact business on her own account 
 during such confinement of her husband, and she may sue and be 
 sued as a feme-sole in all cases where the cause of action arose 
 while her husba,nd was so imprisoned, and she is entitled to the 
 same privileges during the husband's imprisonment as are secured 
 to the wife when her husband abandons her as above provided. 
 95 
 
754 LAW OF COVERTVnE. 
 
 Any married woman is authorized by the statute, to devise by 
 her last will and testament, her lands, tenements, or any descend- 
 ible interest therein, provided that the same shall not affect the 
 estate of her husband therein by the curtesy. 
 
 The statute also provides that the rents, issues and products of 
 the real estate of any married woman, and all moneys and obliga- 
 tions arising from the sale of such real estate, shall, during cover- 
 ture, be exempt from attachment or levy of execution for the sole 
 debts of her husband ; and the husband can make no valid convey- 
 ance thereof, unless his wife join in the conveyance ; and any pi'op- 
 erty, consisting of stocks and bonds of any kind, given by a parent 
 to a daughter, with the proceeds thereof, are declared to belong to 
 such daughter, if married, in her own right, and cannot be made 
 subject to the payment of the debts of her husband, and the same 
 may be disposed of by her the same as if she were unmarried. ( Gen, 
 Stat. 1865, ch. 115.) 
 
 § 569. The courts have held that, under the statutes of the state, 
 the property of the wife owned by her at, or acquired by her after, 
 marriage, and the interest of her husband therein, are exempt from 
 levy and sale under execution against the husband, for debts con- 
 tracted by him before marriage, or the acquisition of such property 
 by the wife. ( White v. Dorris, 35 Mo. E. 181.) 
 
 When husband and wife live together, the possession of the sepa- 
 rate property of the wife by the husband will be deemed in law the 
 possession of the wife, who has the title. {St&wa/rt t. BalVs 
 Admirmtrator, 33 Mo. R. 154.) 
 
 It is held in Missouri, that the recitals in a deed, by which a 
 married woman purports to convey her title to land, do not estop 
 her, nor those claiming under her, from asserting the truth against 
 the recitals. {Hempstead v. Easton, 33 Mo. R. 142.) 
 
 The husband cannot, in Missouri, by his deed, alien the estate 
 of his wife in lands without her consent. {Boyle v. Chairubers, 32 
 Mo. R. 46.) 
 
 "When property had been conveyed to trustees to the sole use of a 
 married woman, " and to such uses and purposes, and in such man- 
 ner, as she might, in writing, appoint," and subsequently she became 
 an indorser of a negotiable promissory note ; the court held, that 
 such indorsement was an appointment in writing, whereby she 
 charged her separate estate. The court farther held, in the same 
 case, that when the action concerns the separate property of the 
 
MARITAL BIOBTS IN KANSAS. 755 
 
 wife, she must sue or defend by her next friend, without joining 
 the husband. But when it is sought to charge the wife's separate 
 estate with her debts, her trustee is a proper party defendant, so 
 that in case of sale the legal title may be conveyed. {Claflvn v. 
 Tan Warmer, 32 Mo. B. 252.) And it has been held that, in a 
 Buit to charge the separate estate of a married woman, she cannot 
 appear and defend by attorney ; and that, if she do tlius appear, the 
 judgment will be reversed for error. {Fox v.. TooTee, 34 Mo. B. 
 509.) 
 
 In Missouri, when a deed was offered in evidence, purporting to 
 convey the titles of married women to land, and their names were 
 in the handwriting of other persons, and there was no proof that 
 the women had either signed or acknowledged the deed, the supreme 
 court of the United States held, that it was properly refused by the 
 court below to be allowed to go to the jury. It was further held, 
 in the same case, that a succession accruing to the wife during 
 marriage is her paraphernal property, which she may administer 
 without the consent or control of her husband, and that the real 
 estate in question was paraphernal, and could not be conveyed 
 away by the husbands of the wives on whom it descended from 
 their father. (Meegan v. Boyle, 19 Mow. IF. S. B. 130.) 
 
 § 570. In the State of Kansas, the statute provides that the prop- 
 erty, real and personal, which any woman owns at the time of her 
 marriage, and the rents, issues, profits or proceeds thereof, and any 
 real, personal or mixed property which shall come to her by devise, 
 bequest or descent, or the gifts of any person, except her husband, 
 shall remain her sole and separate property, notwithstanding her 
 marriage, and, shall not be subject to the disposal of her husband, 
 or hable for his debts. Any feme-covert may sell and convey her 
 personal and real property, and enter into any contract with refer- 
 ence to the same, as if she were sole, and she may sue and be sued 
 as to all matters respecting her separate property, the same as if 
 she were sole, and she may make a valid will. Sh^ may also carry 
 on any trade or business, and perform any labor or services on her 
 sole and sepai'ate account, and the earnings of any married woman, 
 from her trade, business, labor or services, are declared to be her 
 sole and separate property, and they may be used or invested by 
 her in her own name. {Bev. Stat, of 1862, ch. 91.) 
 
 It has been held by the supreme court of Kansas, that a married 
 woman in bringing a suit upon a promissory note in her own name, 
 
756 LAW OF COVERTITBE. 
 
 can only maintain her action on the ground that the note is her 
 sole property. Therefore, it seems to be a defense to a note held 
 by a married woman, to show that it actually belongs to her hus- 
 band. {Hadley v. Brown, 2 Kansas S. 416.) 
 
 § 571. In the new State of Nevada the statute provides that a 
 husband and wife may by their joint deed convey the real estate 
 of the wife, in like manner as she could do by her separate deed 
 if unmarried ; but that no covenant, express or implied, in any such 
 conveyance, shall bind such married woman or her heirs, except 
 so far as may be necessary effectually to convey all the right and 
 interest belonging to her and expressed to be conveyed. {Laws of 
 1861, ch. 9, § 2.) 
 
 The statute of the state further provides that all property, both 
 real and personal, of the wife, owned by her before marriage, and 
 that acquired afterward by gift, bequest, devise or descent, shall be 
 her separate property, and that property similarly owned before or 
 acquired after marriage by the husband shall be his separate prop- 
 erty, and that all property acquired after marriage by either party, 
 except as above stated, shall be common property. 
 
 In oi'der to protect the property of the wife from liability foi- the 
 debts of her husband, the statute requires that she make, sign and 
 acknowledge, and record in the office of the recorder of the county 
 ' in which the parties reside, an inventory of her separate property. 
 The statute further declares that the husband shall have the man- 
 agement and control of the separate property of the wife during 
 covertiire ; but no alienation, sale or conveyance of the real prop- 
 erty of the wife or any contract for the alienation thereof, or of 
 any lien or incumbrance created thereon, will be valid except by 
 an instrument in writing, executed and acknowledged by the hus- 
 band and wife. The wife may have a tnistee for her separate 
 property appointed by the district court, if justly apprehensive that 
 the same will be mismanaged or wasted by the husband. The 
 husband has the entire management and control of the common 
 property, but it can only be disposed of by transfer, in the same 
 ma,nner that the wife's separate property can be disposed of. 
 Dower and curtesy are abolished, but on the death of the wife the 
 whole common property goes to the husband, and on the death of 
 the husband half of the common property goes to the wife, and 
 the' other half to the descendants of the husband, or parties 
 entitled to his separate property. {Laws of 1864, 1865, ch. 76.) 
 
MABITAL EIGHTS m obegon: 757 
 
 By a recent statute, a married woman may be a trader in her 
 own name, on application to the conrt, upon a notice publicly 
 advertised four weeks, of her intention to apply for the order ; and 
 upon the granting the application by the court, she becomes a sole 
 trader, and is made responsible for the maintenance of her own 
 children, and the husband is not liable for any debts contracted by 
 her in the business. {Laws of 1867 , ch. 10.) 
 
 When any married woman is a party to an action, her husband^ 
 is required to be joined with her, except when the action concerns 
 her separate property, she may sue alone, and when the action is 
 between husband, and wife, she may sue or be sued alone. {Laws 
 0/1861, cA. 103, §7.) 
 
 § 572. In the new State of Nebraska, the statute provides that 
 anf real estate belonging to a married woman, may be managed, 
 controlled, leased, devised or conveyed by her by deed, or by will, 
 in the same manner, and with the like effect as if she were single ; 
 but she can convey her right of dower in her husband's real estate 
 only by a joint conveyance with her husband, and she is not bound 
 by any covenant in a joint deed by herself and husband. (Rev. 
 Stat. 1866, ch. 43, §§ 47, 48, 53.) 
 
 The statutes of Nebraska further provide that when a married 
 woman is a party to an action, her husband must be joined with 
 her, except that when the action concerns her separate property 
 she may sue without her husband by her next friend. {Rev. 8tat 
 Ut. 3, § 33.) 
 
 § 573. In the State of Oregon, by the constitution, the property 
 and pecuniary rights of every mai'ried woman at the time of her 
 marriage, or afterward acquired by gift, devise or inheritance, are 
 not subject to the debts or contracts of the husband. {State Const, 
 art. 15, § 5.) And by statute all such property and rights are 
 declared to be the separate property of such married woman, and 
 not subject to be taken in execution, or in any way charged on 
 account of the debts or contracts of her husband, from and after the 
 time said property or pecuniary rights are recorded. A declaration 
 to hold separate property executed and acknowledged by a feme^ 
 covert must be : recorded with the county clerk, in order to secure 
 the benefits of the statutory provision. {General Laws, 1864, 
 cA. 32.) 
 
 A married woman in Oregon may, by will, dispose of aiiy real 
 estate held in her own right, subject to any rights which her 
 
758 LAW OF COVERTURE. 
 
 husband may hare as tenant by the curtesy. {Gen. Laws, 1864, 
 6h. 62, § 13.) And in all suits where the action concerns her 
 separate property, a feme-covert may sue alone. {Oen. Laws, 1864, 
 oh. 1, § 30.) Without acknowledgment, a married woman does 
 not relinguish her dower by signing and sealing her husband's 
 deed. . {Moore v. Thomas, 1 Oregon R. 201.) The courts have 
 held, that, under the constitution of the state, in cases of deeds 
 without covenants, the same rule applies to a feme-covert as to a 
 feme-sole, as the constitution gives married women the control 
 and disposition of their real estate. Hence, the doctrine of 
 estoppel is held to apply to married women, and they are bound 
 by recitals contained in their deeds. {Graham, v. Meek, 1 Oregon 
 R. 325. But vide Fahie v. Pressey, Decisions 8ujp. Court, 1866, 
 p. 16.) 
 
 It has also been held, by the supreme court, that the provisions 
 of the constitution and statutes must be so construed as to allow a 
 married woman not only to hold property as separate property, 
 without the intervention of a trustee, but also to exchange one 
 species of her separate property for another, and to authorize her 
 to sell any part of her separate property and retain the purchase- 
 money as her own, or, with it, buy other property, to be held by 
 her in the same manner and for the same purpose. {Brummet v. 
 WeaA>6r, Dec. Sup. Court, 1866, p. 42.) And in the same case, it 
 was held that either registration or actual or constructive notice, 
 as in cases of deeds and mortgages of lands, would be sufiicient to 
 bind the party attempting to deal with her husband concerning her 
 property. {Ih. 46.) And it has also been held, that a married 
 woman cannot be deprived of her real estate, except by her deed. 
 {Ca/rter v. Ohapmam, Dec. Sup. Court, 1866, p. 5.) 
 
 § 574. In California, all property, both real and personal, owned 
 before marriage by husband and wife, or acquired during coverture 
 by either party, by gift, bequest, devise, or descent, is declared to 
 be the separate property of each ; all otherwise acquired property 
 during coverture is the common property of both. The law, how- 
 ever, requires an inventory of the wife's separate property to be 
 made, acknowledged and recorded, as is required in the new State 
 of Nevada ; and this inventory is regarded as notice of the wife's 
 title, and the property included' in it is exempt from seizure or 
 execution for the husband's debts. The husband has the manage- 
 ment and control of the wife's property, but has no power to 
 
MARITAL EIOSTS IN CALIFORNIA. ' 759 
 
 alienate it or create any lien upon it, except Ms wife join him in 
 the conveyance. The personal property of the wife cannot be sold, 
 assigned, or transferred, unless both husband and wife join in the 
 sale, assignment, or transfer thereof, except property which she is 
 or may be authorized by law to sell, asssign, or transfer as a feme- 
 sole. The husband has the entire control and management of the 
 common property, and an absolute power to dispose of his own 
 separate property. The rents and profits of the separate property 
 of both parties are considered common property, unless the terms 
 of the gift to the wife require a different arrangement. . Dower 
 and curtesy are abolished by statute, and, in lieu of these tenures, 
 upon the death of either party the survivor takes an interest in 
 the common property. 
 
 When a married woman is a party to an action, her husband 
 must be joined, except, if the action concerns her separate prop- 
 erty, she may sue alone ; and, if the action is between herself and 
 her husband, she may sue and be sued alone. If both husband 
 and wife are sued together, the wife may defend in her own right. 
 The wife may carry on in her own name any business, trade, pro- 
 fession, or art, under her own name, and the money, property, etc., 
 invested belongs exclusively to her, and in respect to this she has 
 all the legal privileges and disabilities of debtor and creditor; and, 
 in these circumstances, the wife is responsible for the maintenance 
 of her children. But, in order that a wife may avail herself of 
 this provision of law, she is required to reside in the state, and 
 must make a declaration before a notary public or other person 
 authorized to take acknowledgment of deeds, that she intends to 
 carry on business in her own name and on her own account, 
 specifically setting forth in her declaration the nature of the 
 business, trade, profession, or art in which she proposes to engage ; 
 and the amount invested in the business must not exceed five 
 thousand dollars, unless the declaration contain also a statement 
 under oath that the surplus of money above five thousand dollars 
 invested in said business did not come from any funds belonging to 
 her husband. {WoocPs Dig. ch. 44, arts. 2605-2614, 2624^2629. 
 laws of 1862, p. 518, § 1. Wood's Big. ch. 23, §§ Y, 8.) 
 
 § 575. A married woman of legal age is given the power to con- 
 vey and transfer lands or any estate or interest therein, vested in or 
 held by her in her own right, as fully and pei'fectly as she might 
 or could do if single or unmarried ; provided, the husband be not, 
 
760 LAW OF COVEBTUSE. 
 
 _and for one year next preceding the execution of the instrument 
 of conveyance by the wife has not been, hona fide residing in the 
 state. ( Wood's Dig. ch. 44, § 2630.) 
 
 A feme-covert may dispose of all her separate estate by will, 
 absolutely, without the consent of her husband, either express, or 
 implied, and may alter or revoke the same in like, manner as a 
 person under no disability may do ; but her will is required to be 
 attested, witnessed, and proven in like manner as aU other wills. 
 {Laws 0/1866, ch. 285, § 1.) 
 
 Upon the dissolution of the community by the death of the wife, 
 the entire common property, without administration, goes to the 
 surviving husband ; upon the dissolution of the community ' by 
 the death of the husband, one-half of the common property goes to 
 the surviving wife, and the other half is subject to the testamentary 
 disposition of the husband, and in the absence of such disposition, 
 such other half goes to the descendants of the husband, equally, if 
 such descendants are in the same degree of kindred to the intest- 
 ate, otherwise, according to the right of representation ; and in the 
 absence of both such disposition and such descendants, such remain- 
 ing half is subject to distribution in the same manner as the 
 separate property of the husband ; provided, that in case of the dis- 
 solution of the community by the death of the husband, the entire 
 common property is made equally subject to his debts, the family 
 allowance, and the charges and expenses of administration. {Laws 
 of 1864, ck. 333, § 1.) 
 
 The laws of !Nevada in respect to husband and wife, so far as 
 they go, are so very .similar to the laws of California upon the same 
 subject, that it is probable the former were copied from the latter. 
 
 It will be observed that the statute of California has done away 
 with the common law right of dower, and substituted in place of 
 it the half interest in the common property, of which the husband 
 and wife are jointly seised during coverture, subject only to the 
 husband's disposal during their joint lives ; and this provision is 
 the same whether the wife resides in the state or not. {Beard v. 
 Knox, 6 Gcd.S. 256. Scott v. Ward, 13 ib. 469.) 
 
 Upon the death of the husband, the wife is entitled to half the 
 -common property, subject to the payment of the debts of the com- 
 munity. The husband has not the power, by a last will and testa- 
 ment, to dispose of the wife's interest and estate in the common 
 property. {Morrisori v. Boioman, 29 €al. E. 337.) 
 
MABJTAL RIGHTS IN CALIFORNIA. 761 
 
 § 576. It, has been held that the statute does not affect the prop- 
 erty after acquired in the state, if acquired by a husband or wife 
 •whose marriage occurred elsewhere, unless they "resided and 
 acquired the property herein." {Dye v. Bye, 11 Cal. B. 167.) 
 
 The reasonable presumption which attends the possession of 
 property by either spouse during the existence of the community, 
 can only be overcome by clear and certain proof that it was owned 
 by the claimant after maniage, or acquired afterward in one of 
 the particular ways specified in the statutes, and that it is property 
 taken in exchange for or in the investment, or as the price of the 
 property so originally owned or acquired. {Meyer v. Kimer, 12 
 Gal. R 253. Tryon v. Sutton, 13 ik 493.) 
 
 Under the statutes of California, the joining of the husband in 
 the conveyance of a wife of her separate estate, is not for the 
 purpose of passing title, for he has none to convey. It is only a 
 precaution against imposition, or similar reasons of policy, or to 
 evidence his renunciation of the right to manage or control it. 
 {Ingokby v. Juan, 12 Cal. JR. 576.) 
 
 A deed by a husband of his separate real estate to a trustee for 
 the benefit of his wife, whether executed in compliance with an 
 antenuptial contract, or by way of settlement upon his wife, inde- 
 pendent of any previous contract, the husband being at the time 
 free from debts and liabilities, is held to be valid. The law allows, 
 and even regards with favor, . pro^'isions made by the husband, 
 when in solvent circumstances, for his wife and family against the 
 possible misfortunes of a future day, by setting apart a portion 
 of his property for their benefit. {Barker v. Kmeman, 13 Cal. 
 B. 10.) 
 
 Where husband and wife execute a note and mortgage; the note 
 is held to be good as to the husband, even if void as to the wife, 
 and the property is bound by the mortgage, independent of the 
 note of the wife. {Pfeiffer r. Beihn, 13 Cal. R. 649.) 
 
 The mortgage of the husband and wife of the wife's land to 
 secure the debt of the husband, is held to be valid. {De Leon v. 
 Eegue/ra, 15 Cah R. 489.) 
 
 § 577. The Code of California gives to a married woman the right 
 to sue without the husband, in an action concerning her separate 
 estate. Property ovmed by the wife before marriage, and that 
 acquired afterward by gift, bequest, devise or descent, are declared 
 to be her separate property, and the rents and profits of the separate 
 96 
 
762 LAW OF COVERTURE. 
 
 property are declared to be common property. The statute confers 
 on the parties before marriage an unlimited right to make what- 
 ever stipulation they may agree upon in respect to property, and 
 this is not confined to property in esse, but contemplates property 
 to be acquired, and the rents and profits of the present estate. It 
 does not dispense with the interposition of trustees to protect the 
 wife, except with respect to the property specified in the act. In 
 all other respects the common law remains unaltered, and the wife 
 may resort to trustees for all purposes of security. If the husband 
 should take the rents and profits, he will be held to account for the 
 wife's benefit, and to the same extent as if he had undertaken a 
 specific trust. The law which deprives a married woman of the 
 right to make contracts is not altered by the statute, unless in 
 respect to the property specified by it, and she cannot bring suit in 
 her own name upon a contract which she is not authorized by 
 statute to make. {Snyder v. Webi, 3 Gal. R. 86, 87, 88. And vide 
 Bowe V. KoMe, i ib. 285. Luning v. Brady, 10 *5. 267.) 
 
 But the Code permits the wife to sue alone when the action is 
 between herself and her husband, and takes away the necessity of 
 suing by prochien ami. It is a remedial statute, and must be 
 beneficially construed. {Kashaw v. Kashaw, 3 Cal. R. 321.) 
 
 The interest of the wife in the common property is held to be a 
 present, definite and certain interest, which becomes absolute at 
 the death of her husband. Taking a legacy by a wife, under the 
 will of the husband, will not prevent her from contesting the 
 validity of the will, so far as it disposes of the half intei-est in 
 the common pi'operty to others. She is entitled to her own share 
 and to the legacy out of the share of her husband. {Beard v. Knox, 
 6 Ccd. E. 256, 257.) 
 
 A promissory note executed by a feme-covert is held to be abso- 
 lutely void, unless it is a well defined exception of the law. {Smb- 
 pers V. Sloan, 5 .Cal. B. 458. Poole v. Gerrard, 6 ib. 72.) 
 
 The capacity of the wife to hold separate property is created by 
 the constitution of the state, and her title thereto depends upon 
 the mode of acquisition, and vests before the inventory provided 
 for can be filed. Under the statute of the state, the sale of the 
 separate property of the wife, whether i-eal or personal, must be in 
 writing, signed and acknowledged in the manner pointed out by 
 the statute, or it is void. A married woman can, to some extent, 
 avoid the inconvenience of the privy examination, in the sale of 
 
MARITAL RIGHTS IN CALIFORNIA. Y63 
 
 articles of personal property, by executing a power of attorney. 
 From the position that the capacity of the wife as to her separate 
 property is equal to that of the husband as to his separate prop- 
 erty, grave doubts have been expressed as to the validity of some 
 of the provisions of the California statutes. {Selover v. American 
 Bussim Com. Co., 1 Cal. R. 270, 271, 172, 273.) 
 
 A sheriff may be enjoined from selling real property belonging 
 to the wife, under an execution against the husband. {Alverson v. 
 Jones, 10 Cal. E. 12.) 
 
 The court will not support a voluntary disposition of the com- 
 mon property, or any portion of it, with the view of defeating any 
 claims of the wife. {Smith v. Smith, 12 Cal. R. 226.) 
 
 The courts of California hold that the doctrine of estoppel m 
 pais has no application to the estates of married women ; and 
 farther, that a conveyance of & feme-covert, not executed according 
 to the forms prescribed by statute, is invalid. {Morrison v. Wilson, 
 13 Gal. R. 497.) 
 
 It is held that the title of the common property is in the bus 
 hand, and he can dispose of the same absolutely, as if it were his 
 own separate property. The interest of the wife is a mere expect- 
 ancy, like the interest which an heir may possess in the property 
 of his ancestor. ( Van Mar en v. Johnson, 15 Cal. R. 310. But 
 vide Smith v. Smith, supra.) 
 
 Neither the husband nor his creditors can claim the proceeds or 
 fruits of the separate estates of the wife. A law giving them such 
 fruits is unconstitutional. {Geopge v. Ransom, 15 Cal. R. 323.) 
 
 § 578. In an action against a feme-sole trader, it is improper to 
 join her husband with her as defendant, and a complaint so 
 drawn is demurrable. The effect of the statute is to make z. feme- 
 sole of a married woman who is a sole trader^ as to the particular 
 business in which she is engaged. And in an action brought by a 
 married woman concerning property belonging to her as a sole 
 trader, the husband need not be joined. {McKune v. McOarvey, 
 6 Cal. R. 498. Guttman v. Soannell, 7 ib. 458.) 
 
 By the provisions of the sole trader's act, the legislature designed 
 to afford to every married woman an opportunity of providing 
 against the improvidence or misfortunes of her husband, by engag- 
 ing in all legitimate callings, by protecting her earnings against 
 her husband and his creditors, and enabling her, by her own 
 energy and industry, to support herself and children. So far from 
 
764 LAW OF COVERTUBE. 
 
 forbidding, the law, by the plainest implication, intends that the 
 capital invested by the wife as a sole trader, to the extent of $5,000, 
 may be furnished by the husband. If the husband at the time 
 was insolvent, the transfer as to his creditors would be fraudulent 
 and void. The act does not confine sole trading to any particular 
 trade or occupation, nor prohibit the husband from being employed 
 by, or acting for his wife in the business. The fact that the business 
 was unsuited to the sex of the wife, and the employment of the 
 husband therein, would be circumstantial evidence tending to 
 establish fraud, but not conclusive evidence of it. {Guitman v. 
 Scarmell, 7 Gal. B. 458. Vide AVoerson v. Jones, 10 Gal. R. 12. 
 And also Aiken v. Damis, 17 ih. 119. Lawrence v. Spear, Ih. 421.) 
 
 § 579. The courts hold that property purchased during cover- 
 ture with funds which constitute a part of the separate estate of 
 the wife, will also be her separate estate. A mortgage executed 
 by the grantee of the husband upon property purchased with funds 
 belonging to the separate estate of the wife, and deeded to the wife 
 during coverture, is a cloud upon the wife's title which a court of 
 equity will remove. 
 
 The presumption is, that property conveyed to the wife for a 
 money consideration is common property ; but this presumption 
 may be rebutted by showing that it was purchased with money 
 belonging to her separate estate. Parties purchasing of the hus- 
 band real estate deeded to the wife for a money consideration during 
 coverture, do so at their peril. The record of the deed to the wife 
 is regarded as notice to all the .world that the land may be the 
 separate property of the wife, and is sufficient to put purchasers 
 upon inquiry. {Bamsdell v. duller, 28 Gal. H. 41. And vide 
 Mart v. Robertson, 21 %b. 346. Burton v. Sies, lb. 87.) 
 
 The rights of married women as to their separate property and 
 their power over it, in California, do not depend alone on the prin- 
 ciples of the common law, or upon the doctrines of courts of equity, 
 but mainly upon the constitution and statutes of the state. Except 
 in special cases, as under the sole trader's act, a married woman 
 cannot, by contract, create a personal liability against herself in 
 . any form. 
 
 Under the laws of California a married woman, by the mere 
 execution of a promissory note in the ordinary form, in considera- 
 tion of services rendered or moneys furnished for her benefit or 
 the benefit of her separate estate, or by the purchase of gooda iu 
 
MASITAi SIOSTS IN WEST VIRQINIA. 765 
 
 tie ordinary mode for her separate use, with the intent and under- 
 standing that the demai^d thus arising shall be satisfied out of her 
 separate estate, cannot create a charge or incumbrance upon such 
 separate estate ; nor can a court of equity impose and enforce 
 such claim or demand as a charge or incumbrance upon such sepa- 
 rate estate. {Maclay v. Love, 25. Cal. E. 374, 381.) 
 
 All property which can be shown by satisfactory testimony to 
 belong to the separate estate of the wife, whether real, personal or 
 mixed, and all the rents, issues, and increase thereof, are, under 
 section fourteen of article eleven of the constitution, sacred to the 
 use and enjoyment of the wife, and cannot be held to answer for the 
 debts of the husband. No legal or beneficial interest in the use or 
 enjoyment of the wife's separate property passes by the fact of 
 marriage to the husband, and the wife's right of property in the 
 same is as complete after marriage as while a feni^sole. The 
 husband cannot, by any independent act of his, acquire an interest 
 in such separate estate of the wife, nor by his supervision or labor 
 can he acquire any interest in the increase of the same. In the 
 absence of any express agreement to that effect, there is no implied 
 obligation on the part of the wife to compensate the husband for'^ 
 his supervision of, and labor bestowed upon, her separate property.! 
 {Rope V. Jones, 24 Cal. B. 92.) 
 
 CHAPTEE XXXVII. 
 
 STAT0TOET POLICY OF THE SOUTHEEN STATES IN EESPECT TO HUSBAND 
 AND WIFE AND MABITAL EIGHTS — LAWS OF TIEGINIA, WEST VIEGINIA, 
 EENTUCKT, TENNESSEE, NOETH CAEOLINA, SOUTH OAEOLINA, GEOEGIA, 
 FLOEIDA, ALABAMA, MISSISSIPPI, LOUISIANA, AEKANSAS AND TEXAS — 
 JUDICIAL OONSTEUCTION AND DECISIONS. 
 
 § 580. Theee does not seem to be any thing distinctive in the 
 statutes of Virginia, or "West Virginia, in respect to husband and 
 wife, or marital rights ; in the main, the common law doctrine 
 prevails. In West Virginia the court of appeals have held, upon 
 common law principles, that a gift of ohoaes in action from a hus- 
 band to his wife, although void at law; will be sustained by a court 
 of equity when it is not unreasonable in its provisions, nor in fraud 
 
766 LAW OF COVERTXIRE. 
 
 of creditors, and that the intervention of a trustee is not necessary 
 to make a gift or settlement to a wife, whether the estate is derived 
 from the husband or a stranger ; and, further, that the husband, 
 during his life-time, and his personal representatives after his 
 death, will be treated as a trustee for the wife of such estate, and 
 be enjoined from making any legal disposition of it in contraven- 
 tion to the trust. But there is nothing peculiar in this doctrine, as 
 it is recognized in all the states and in England. {Fox v. Jones, 
 1 W. Ya. R. 205.) 
 
 By the statute of Yirginia a married woman may convey " any 
 estate or interest " belonging to her by uniting in a deed with her 
 husband, and being privily examined, and such deed is declared to 
 have the same effect to pass her interest as if she were an unmar- 
 ried woman. (1 Bev. Code, 1819, p. 368. Code 1849, ch. 121, 
 § 7.) The court of appeals have held that this statute does not 
 apply to personal estate, and that a deed executed by husband and 
 wife, with the formalities of the act, and admitted to record, is not 
 sufficient to pass the interest of the wife in personal estate which 
 was incapable of being reduced into possession by the husband. 
 {Nelson v. Jennings, 2 Ya. H. 369.) 
 
 § 581. The courts of Virginia hold that a court of equity will 
 not decree a specific performance of a contract by a husband and 
 wife for the sale of the wife's land, at the suit of the vendee, the 
 wife refusing to execute the contract ; nor will the court compel 
 the husband to convey his life estate to the vendee, with compen- 
 sation for the failure of the wife to convey her interest in the land. 
 The court declared, in the same case, that, under the statute {Code, 
 ch. 121, § 7, p. 514), the deed of a married woman with general 
 warranty can operate no further on her representatives than to pass 
 such right, title and interest as at the date of such deed she might 
 have in the estate thereby conveyed. {Clarice v. Reins, 12 Gratt, 
 B. 98.) 
 
 "When a husband carries on a mercantile business as agent for his 
 wife, and he is aided by his sons, who are minors, and the business 
 is profitable, and property is accumulated from its profits, the courts 
 of Yirginia hold that the husband has an interest in the property, 
 which may be subjected by his creditors to the payment of his 
 debts. {Penn v. WhiUhiads, 12 Gratt. B. 74.) 
 
 The courts of Yirginia hold that under their statutes a husband 
 is not a competent witness to a deed executed during the marriage 
 
liIA.RnAh RIQBTS IN KENTUCKY. 767 
 
 by which real estate is conveyed to his wife, either for the purpose 
 of proving due execution of the deed when called in question, or 
 for the purpose of having it admitted to record. {Johnston v. 
 Slater, 11 Oratt. R. 321.) 
 
 It has been held by the court of appeals of Virginia that a deed 
 from a husband to his wife, conveying to her all his property, real 
 and personal, under circumstances showing a strong meritorious 
 consideration, set up in equity against a nephew, the heir at law 
 of the grantor, may be sustained. {Jones v. Obenchain, 10 Oratt. 
 B. 269.) 
 
 A deed executed by husband and wife under a power of attorney, 
 ■was held to be the deed of the husband, though void as to the wife, 
 the -power as to the wife being void. {Shanks v. Lcmcaster, 5 Oratt. 
 B. 110.) 
 
 The court of appeals doubted, in a case before them, whether 
 the wife joining with her husband in a conveyance of land as his 
 land, thereby divests herself of her equitable interest in the land. 
 {Beth V. Richmond, Fredericksburgh and Potomac H. R. Co., 4 
 Gratt. R. 482.) 
 
 § 582. In the State of Kentucky it is provided by statute that 
 marriage shall give to the husband, during the life of the wife, no , 
 estate or interest in her real estate or chattels real, owned at the 
 time or acquired by her after marriage, except the use thereof, 
 with power to rent the real estate for not more than three years at 
 a time, and receive the rent therefor ; and further that such real 
 estate and rent shall not be liable for any debt or responsibility of 
 his, contracted or incurred before or after marriage, but are liable 
 for her debts and responsibilities contracted or incurred before 
 marriage, and for such contracted after marriage on account of 
 necessaries for herself or any member of her family, her husband 
 included, as shall be evidenced by writing signed by her and her 
 husband ; and the remedy may be against both or against her alone, 
 as the case may require. Though the husband's contingent right 
 of curtesy or life estate, or right to the use and rent of the wife's 
 real estate, cannot be sold for, or otherwise subjected to the pay- 
 ment of, any separate debt or responsibility of his during the life 
 of his wife, the husband is not liable for any debt or responsibility 
 of the wife contracted or incurred before marriage, except to the 
 amount of whatever he may receive by her, independent of real 
 estate, and the use and rent thereof; except for necessaries fur- 
 
768 LAW OF COVEBTUSH. 
 
 nished her after marriage, he is liable as formerly. (2 JR&e.'Stai. 
 art. 2, eh. 4Y, §§ 1, 3.) 
 
 The well settled doctrine formerly was, that, by virtue of the 
 marriage, the husband acquired an estate for life of the wife, or 
 during coverture, in lands owned by her ; this is the rule at common 
 law, and therefore the husband might sell his interest in his wife's 
 lands, or the same might be sold by virtue of a judgment and exe- 
 cution against him, and, on such sale, the purchaser was entitled to 
 the husband's interest, and with it the right to the possession dur- 
 ing coverture, and, in case a tenancy by the curtesy attached, during 
 the life of the husband. (MoZain v. Gregg, 2 Marsh. B. 455. 
 Smith V. Long, 1 J. P. Meto. E. 487.) But it will be observed 
 that this rule of the common law is now changed by the statute. 
 It has been held, however, that although the statute essentially 
 modifies the pre-existing marital rights of the husba;nd as therein 
 named, yet the only object of the restrictiou upon the power of 
 the husband, as it respects the period for which he may rent the 
 real estate of his wife, evidently was to secure more effectually to 
 her the exercise of her right of appropriating the rents and profits 
 in the purchase of necessaries for herself and family, and also of 
 her further right to demand of the chancellor an equitable settle- 
 ment upon herself, out of the rents and issues of her real estate, 
 whenever she may present a case which would authorize such 
 equitable remedy on her behalf. The restriction is merely upon 
 the property, as to the general pre-existing marital rights of the 
 husband ; and it is decided that the statute was not intended to 
 convert the rents and profits of the wife's lands into a separate 
 estate, for her exclusive use and benefit, and subject to her exclu- 
 sive control and dominion, without regard to the circumstances of 
 herself and husband, or their family ; and that she cannot recover 
 rents and profits of the vendors for her lands against the contract 
 of her husband, on a rescission of such contract, in the absence of 
 sufiicient ground for an equitable settlement upon her, xipon the 
 pre-existing principles of equity. {Smith v. Long, supra.) 
 
 As the law now stands, the real estate owned by the wife, and 
 the rents and profits thereof, are exempted from any liability for 
 the debts of the husband ; but they are liable for her debts con- 
 tracted before coverture. {Smith v. Wilson, 2 Mete. R. 237.) The 
 provision of the statute with respect to the liability of the wife's 
 property for necessaries furnished the family, relates simply to the 
 
MARITAL m&STH Z2V KENTUOKT, T69 
 
 general property as contradistinguished from her separate Qiizie. 
 {Toombs V. Stone, 2 Meto. i2.,622.) The general estate of a. feme- 
 covert is liable to tlie payment of debts contracted after marriage 
 for necessaries for herself and family, but only when evidenced by 
 a writing mgned by herself and her husband. {J^arsJudl v. Miller, 
 3 Meto. B. 333.) 
 
 § 583. It has been judicially declared that by the authorities the 
 following propositions are substantially settled : 
 
 1. That, before the Kentucky act of 1846, the husband upon his 
 marriage became entitled absolutely to all the personal estate 
 belonging to his wife, in possession or reduced to possession during 
 coverture, and the same was, to all intents and purposes, his prop- 
 erty. This was simply the common law rule. 
 
 2. That the husband, either as distributee of the wife's estate, or 
 as her administrator if he survived her, was entitled to; all the 
 choses in action and vested rights to her personal estate belonging 
 to the wife before her marriage, or coming to her during her 
 marriage, and when reduced to his possession as administrator he 
 was not bound to distribute them, but might appropriate them to 
 Ms own use. TJhis, too, is the common law rule. But these rights 
 are now subject to the provisions of the acts of 184:6 and 1852. 
 
 3. That personal property conveyed before 1846, to- a trustee for 
 the separate use of the wife, on her death vests absolutely in the 
 husband, unless otherwise directed by the terms of the deed, or 
 will, creating the estate. {Cox y. Coleman, 13 JS. Mon. H. 458. 
 And vide Brown v. Alden, 14 %b. 148. Payne v. Payne, 11 i5. 138. 
 Adkett V. Everett, 12 ih. 371. Richardson v. Spencer,, 18 *5. 450.) 
 
 Where, by an antenuptial contract, it is agreed that the wife 
 shall hold her property to her separate use, to dispose of as she 
 pleases during the coverture, by deed or will, and the wife dies 
 without making any disposition thereof, the 'agreement is at an 
 end, and the husband has the same right therein as if the ante- 
 nuptial contract had never existed, and, before the acts of 1846 
 and 1852, would have vested absolutely in the husband ; but those 
 acts restrain and limit his estate therein to that of an estate for 
 life. {Hart v. Seward, 14 B. Mon. B. 304.) 
 
 A release by a wife of her potential right of dower forms a 
 valuable consideration sufficient to sustain a settlement upon her 
 by her husband, even against the creditors of the husband. ( Wa/rd 
 v. Orathj, 4 Mete. B. 59.) 
 • 97 
 
T70 LAW OF eOVEBfrURE. 
 
 Antenuptial agreements which are fair and reasonable will be 
 enforced in equity. A conveyance from the husband to his wife 
 will be upheld in equity ; and even executory contracts between 
 husband and wife, without a trustee, are good in equity. So held 
 by the courts of Kentucky upon authority. {Marramcm v. Mar- 
 raman, 4 Meto. B. 84.) 
 
 It has been held that the word "necessaries," as used in the 
 statute, should receive a liberal construction, to embrace such 
 things as the family ought to have and enjoy, including the hus- 
 band, considering the social position of the family and the estate 
 of the wife. But the proof must show that the debt is for such 
 necessaries within the law, for which the wife's estate can be 
 rendered liable, or the action will fail as to the wife. {Berger 
 V. Forsythe, 17 B. Mom-oe's B. 556. Pell v. Cole, 2 Metcal/'s 
 B. 252.) 
 
 § 584. Since the act of 1846, the wife's legal title is recognized 
 as a separate estate, and such separate estate may be created by a 
 parol gift, or other transfer, when the title to the property will 
 pass without a transfer or conveyance in writing, but, to sustain 
 such a gift, it must be clearly and distinctly proved that it was 
 made for the sole and separate use of the wife to the exclusion of 
 the husband. {Tinsley v. Boll, 2 Mete. R. 509. Wheeler v. Jen- 
 nings, 16 B. Mon. B. 481. MeClanahan v. Beasley, 17 ih. 113.) 
 But the presumption of title in the husband, of the wife's prop- 
 erty, which obtained from his possession before the act of 1846, 
 does not since that act exist, and her property is not now liable 
 fox his debts. {Craig v. Payne, 4 BiWs R. 337. Blair v. Davis, 
 Moecwtor, 9 B. Mon. B. 61. MeClanahan v. Beasley, supra. 
 Wheeler v. Jennings, supra^ The wife cannot, as the law now 
 stands, make a valid executory contract for the sale or purchase of 
 land, except in the manner authorized by statute, unless she has a 
 separate estate in the land sold or agreed to be sold. Her power 
 as to her separate property is imparted under the instrument 
 creating it as such, and she has the exclusive control of such 
 property, except as limited by the instrument under which she 
 holds it. It seems that all of her real estate does not, even now, 
 belong to her as her separate estate. (Johnson v. Jones, 12 B. 
 Mon. B. 330. Petty v. Malier, 14 ih. 247.) No statute prior to 
 those of 1846 and 1852 authorized the wife to convey any thing 
 but land, and consequently no conveyance previous to those acts, 
 
. MARITAL RIQHTS IN KENTUCKY. Til 
 
 and none since not made in conformity thereto, could pass any 
 interest of the wife. {Lynn v. Bradley, 1 Mete. B. 232.) 
 
 There has been a large amount of litigation under the married 
 ■woman's acts with respect to property in slaves, but as that 
 species of property is no longer recognized in Kentucky, it is not 
 necessary to state here the result of such litigation. 
 
 The husband is liable under the present law for the debts con- 
 tracted by his wife dum sola to the extent of the personal estate 
 received by her ; but in order to recover such a debt, it is necessary 
 that the action be prosecuted against the husband and wife. The 
 passage of the act of 1846 and 1853 does not require any change 
 in the mode of proceedings against husband and wife for the debts 
 of the wife, other than that the judgment should show how it is to 
 be levied. The obligation of the husband for the debts of the 
 wife created before marriage, is not absolute, but contingent. 
 The death of the husband or the wife destroys the liability. For, 
 as the law stood prior to the act, the debt of a feme-sole was not, 
 on her marriage, considered as transferred to her husband. If it 
 had been, he or his executor would have been liable after the 
 termination of the coverture. The debt remained hers, notwith- 
 standing her marriage, and upon her husband's death, if the debt 
 was unpaid, her liability existed, as it had done prior to her mar- 
 riage. The contract was the contract of the wife, and not of the 
 husband, and, therefore, the law exempting his estate from the 
 payment of the debt of his wife contracted dum sola, cannot be 
 regarded as having the effect of impairing the obligation of 
 the contract. {Fultz v. Fox, 9 B. Mon. E. 502.) 
 
 Iii an action against a husband and his wife to recover upon the 
 contract of the wife dum sola, it is not necessary to aver that 
 the husband has received property by his wife. {Fultz v. Fox, 
 supra.) The provisions of law with respect to actions against 
 married women are contained in the Code, which declares that 
 " when a married woman is a party, her husband must be joined 
 with her, except that, when the action concerns her separate prop- 
 erty, she may sue alone." {Civil Code, ch. 5, § 49. And vide 
 Beavmwnt v. Miller, 1 Mete. R. TO.) 
 
 The provision of section forty-nine of the Civil Code, that when 
 the action concerns the separate esta,te of the wife, or when the 
 action is between husband and wife, she, may sue alone, relates 
 merely to the form of procedure. It confers no new right of 
 
17^ LAW OF COVERTURE. 
 
 action. It, in fact, dispenses with the necessity of a next friend, 
 and that is about all. {Matson v. Matson, i'Mefo. B. 262.) 
 
 § 585. When the husband abandons the wife and lives separately 
 and apart from her, or abandons her and leaves the state, without 
 making sufficient provision for her maintenance, or when he is 
 confined in the penitentiary for an unexpired term of more than 
 one year, the wife may, by petition in chancery, be empowered to 
 use, enjoy and sell, for her own benefit, ' any property she may 
 acquire thereafter, or may have acquired since the abandonment 
 or leaving the state; to make contracts, sue and be sued as a 
 single woman ; and also to rebover in her own name, any property 
 or debt to which she may be entitled, or to which the husband is 
 entitled in her right. She may also be empowered to sell and 
 convey by her own deed, any of her real estate freed from any 
 claim of her husband. But such husband, upon manifesting 
 proper disposition again to cohabit with his wife, and make suita- 
 ble provision for her, or upon his release from the penitentiary, by 
 his petition may, in the discretion of the court, have all or part of 
 said powers revoked, and take upon himself the prosecution or 
 defense of any suit pending by or against him. (2 Bev. Stat. art. 
 2, cA. 47, §§ 4, 5.) 
 
 When the real estate of a wife is taken for a railroad, turnpike, 
 or other public use, or shall be damaged by such road, turnpike, or 
 other public work, the compensation or damages must be appro- 
 priated by the court in such manner as she on privy examination 
 may direct, or without such examination, for her benefit, in such 
 manner as to the court may seem just. (2 Bev. Stat. art. 2, ch. 47, 
 §7.) 
 
 A married woman coming from another state or country, to 
 Kentucky, without her husband, he never having resided in the 
 state, may contract, buy and sell, sue and be sued, as an unmarried 
 woman ; but the arrival of her husband in the state, and claiming 
 his marital rights, will revoke all such power, leaving existing 
 liabilities of herself, and all property held by her, and all suits, 
 unaffected by the revocation. (2 Rev. Stat. art. 2, ch. 47, § 8.) 
 
 § 586. Instead of the common law tenancy by the curtesy, the 
 husband, when there is issue ' of the marriage born alive, has an 
 estate for his own life in all the real estate owned and possessed 
 by the vnfe at the time of her death, or of which another may then 
 be seised to her use ; but he will hold the same subject to the 
 
MARITAL RIGHTS IN KENTUCKY. 773 
 
 debts of his wife ; and, after the death of her husband, the wife is 
 endowed for her life of one-tMrd of the real estate whereof he, or 
 anyone for his use was seised of an estate iafee simple at any time 
 during the coverture, unless her right to such dower shall have 
 been barred, forfeited, or relinquished. A divorce bars all claim to 
 curtesy or dower. (2 Bev. Stat. a/rt. 4, ch. 47, §§ 1, 3, 15.) 
 
 It seems that in order that the husband be entitled to the provis- 
 ion of the statute in his favor upon the death of his wife, there 
 must be all the requisites to entitle the husband to curtesy at com- 
 mon law. The only essential difference between this provision 
 and the provision of the common law is, that here the husband 
 takes, in addition to the common law provision, a life estate in the 
 real estate of which another is seised,ito the use of the wife at 
 the time of her death ; and the entire estate is subject to the debts 
 of the wife. {Yide Oldham, v. Menderson, 5 Dana's B. 257. Stine- 
 hoAigh V. Wisdom, 13 B. Mon. B. 469. Welok v. Chandler, lb. 
 431. Yanarsdale v. FoAintleroy's heirs, 7 ih. 401. Powell v. 
 Gossam, 18 ih. 192. Payne v. Payne, 11 ib. 139. Mackey v. 
 Procter, 12 *5. 435. Iforthcutt v. Whipp, lb, 72. I^eely v. But- 
 ler, 10 ib, 50. Orr v. Holliday, 9 ib. 69. Siemens v. Smith, A J. 
 J. Ma/rsh. B. 65. Johnson v. Johnson, 2 Meto. B. 331.) The 
 wife's dower, under the, statutes of Kentucky, depends substantially 
 upon the same circumstances which entitle a widow to her dower 
 at common law; except that by the Kentucky statute the wife 
 will have dower of real estate, -although there may have been no 
 actual possession, or recovery of possession, by the husband in his 
 life-time. (3 Bev. Stat. a/rt. 4, ch. 47, § 5. And vide Iforthcutt v. 
 Whipp, 12 B. Mon. B. 73. Hickman v. Irvine's hewrs,^ Danda 
 B. 122. Price v. Prions heir's, 6 *5. 107. _ Laaoson v. Morton, 
 Ib. 472.) Another change made by the statutes of Kentucky with 
 respect to dower is, that, whenever the, husband has such arT equity 
 as will authorize the chancellor to decree a conveyance of the legal 
 title to the husband, the widow is entitled to be endowed, while at 
 common law she only had dower in laiids to which the husband 
 had legal title, {Oulh/ v. Bay, 18 B. Mon. B. 113.) But it is 
 the design here only to refer to such changes in the marital rights 
 of husband and wife as are made by the statute, and hence but 
 little is appropriate upon the general subject of curtesy or dower. 
 
 § 587. If any stock in any of the banks or other corporations 
 of the state is taken for or transferred to any feruale, and it is 
 
774 LAW OF COVERTURE. 
 
 expressed on tlie face of the certificate or transfer book of such 
 stock that it is for the exclusive use of such female for her annual 
 support, no husband she then has, or may thereafter have, shall 
 take any interest in such stock, or the dividends therein ; but if 
 unmarried, she may dispose of it by will, or, if married, so dispose 
 of it with the consent of her husband, or without such consent, if 
 so provided in the deed or wiU creating the trust. She may also 
 receive the dividends, and give acquittances therefor, as though 
 unmarried ; but she cannot in any way anticipate the same ; nor 
 can any dividend be paid upon any order or power given by her, 
 before the same is declared. 
 
 It is further provided by statute, that if real or personal estate 
 be conveyed or devised for the separate use of a married woman, 
 or for that of an unmarried woman, to the exclusion of any hus- 
 band she may thereafter have, she shall not alienate such estate 
 with or without the consent of any husband she may have ; but. 
 may do so where it is a gift by the consent of the donor or his 
 personal representative. The alienation, however, of the separate 
 estate of a married woman, is not forbidden, whether such estates 
 were created before or since the passage of the statute, by a trustee 
 under the express power in the will or deed creating such estates. 
 But the separate estates of married women cannot be sold or 
 incumbered. 
 
 A married woman may, by will, dispose of any estate secured to 
 her separate use by deed, or in the exercise of a special power 
 to that efifect. So, also, married women -may convey any real or 
 personal estate which they own, or in which they have an interest, 
 legal or equitable, in possession, reversion or remainder. The 
 court ordering a sale of a man-ied woman's lands, must cause 
 the proceeds of the same to be re-invested in lands in or out of the 
 state, subject to the same uses, limitations and trusts as the lands 
 sold were held. (2 Rev. Stat. art. 4, ch. 47, §§ 16, 17, 20, as 
 amended, March 3, 1856.) 
 
 A wife may dispose of her separate estate by will, and may 
 make a will in pursuance of a power for that purpose. She 
 may with the assent of her husband dispose of her personal estate. 
 The grant of such a power is implied from his consent that she 
 may make a will. A general assent is suflBcient ; 'this consent 
 should be given to the probate court, because he may'revoke his 
 consent during the life of the wife, or at any time before probate. , 
 
MABITAI, RIGHTS IN KENTUCKY, 115 
 
 "When a ■will is made with the express consent of the husband, very 
 little proof will be required to show the continuance of the consent. 
 The statute of wiUs applies only to real estate, and though it does 
 not confer on a feme-covert the power to devise real estate, it has 
 never been held to prevent her from devising real estate under a 
 power of appointment. {Oeorge t. Bussing,. 15 B. Mon. B. 363. 
 Vide also MoWy Yate^s will, 2 Dana's B. 216. Prisoilla Kelly's 
 will, 5B. Mon. B. 373.) 
 
 The provision giving a feme-covert power to convey her real and 
 personal estate, applies alone to the general property of married 
 women. The separate estate of a feme-covert created since the 
 adoption of the Eevised Statutes, cannot be sold or incumbered 
 but by an order of the court of equity ; and the.se separate estates are 
 included in the directions to this effect contained in section seven 
 teen of the statute, equally with estates created before the adoption 
 of the Eevised Statutes. {Stacker v. WTiiilocJc, 3 Mete. B. 244. 
 Stuart V. Wilder, 17 B. Mon. B. 59.) 
 
 By section twenty of the Eevised Statutes, married women can 
 still convey their general property; and the section is comprehen- 
 sive enough to embrace every conceivable interest or right which 
 a married woman may have in property real or personal, and every 
 kind of conveyance by deed. A deed of trust or mortgage either, 
 is a conveyance by deed in the legal sense of that phrase in the 
 statute. {Smdth v. Wilson, 2 Mete. B. 237.) 
 
 The provision forbidding the separate estates of married women 
 to be sold or incumbered, completely fetters the powers of a fem£- 
 covert to alienate such estate, and it may have the effect of limiting 
 her expenditures to an outlay of the profits merely as they may 
 accrue. Such a restriction may be considered severe in some cases ; 
 but, from the words of the statute, it is declared that there is no 
 room left to doubt that such was the intention of the legislature, 
 and that such is the law. The terms of prohibition are general, 
 and embrace all separate estates. 
 
 It has been judicially declared that this provision of the Eevised 
 Statutes was enacted, not only to protect the rights of married 
 women by securing their separate estates against their own 
 improvidence, as well as all improper influences which might be 
 attempted to be exercised over them, but also more effectually to 
 secure the attainments of the object of the donor in their creation. 
 Instead of depriving married women of any of their rights in their 
 
776 LAW OF COVERTURE. 
 
 separate estate, it tends to secure them in the possession and enjoy- 
 ment of them. The power to violate the instrument creating her 
 estate, and to make a disposition of the property embraced by it 
 inconsistent with and calculated to defeat the evident intention of 
 the donor in making her the object of his bounty, cannot be regai-ded 
 as such a vested right in a married woman as to place it beyond 
 egislative control or regulation. Indeed, the existence of such a 
 power was only recognized in a court of equity, and the propriety 
 of permitting its exercise unless it was expressly conferred by the 
 instrument which created the estate, has been frequently questioned 
 by. the most enlightened chancellors. 
 
 Married women can still sell and convey their separate estates ; 
 but it must be done as prescribed by the statute, and not otherwise, 
 and, under the superintendence t)f a court of equity, when created 
 before the 1st of July, 1852 ; and the proceeds must be invested for 
 the same use as that contained in the conveyance or devise by 
 which the separate estate was originally created. The mode in 
 which the sale and conveyance are to be made is varied ; but the 
 restriction is entirely consistent with the nature of th« estate, and 
 its operation is evidently advantageous to the owners of such prop- 
 erty, by securing them in the continued enjoyment of it. As the 
 proceeds pf a sale, when made, are required to be reinvested for the 
 separate use of the wife, she is. thereby guarded against that influ- 
 ence to which her condition naturally subjects her, and which it is 
 almost impossible for her to resist, by the withdrawal of aU tempta- 
 tion for its exercise. {Daniel v. Sdbinson, 18 B. Man. H. 306. 
 WUliamson v. WilUamson, lb. 385.) Before the act of 1852, there- 
 fore, the separate estate of a feme-covert could be sold and conveyed 
 under the superintendence of a court of equity ; but, as the law 
 now stands, it can be done only by consent of the donor. {Stewart 
 V. WMer, IT B. Mori. B. 59. Stone v. Guthrie, 2 Mete. B. 520.) 
 The husband cannot now bind the separate estfte of his wife by 
 mortgage, as his power over such estate is restricted by the statute. 
 {St6wwrt V. Wilder, supra.) 
 
 § 688. "Where a creditor brought suit against the trustee of the 
 wife to subject property conveyed to him in trust for the use, ben- 
 efit aiid support of the wife and her children, and to permit her 
 and her children to use, possess and enjoy every part and parcel 
 of the property, and to be controlled by the wife for her comfort 
 and support, to the exclusion of the husband, viz., to subject the 
 
MARITAL RIGSTa IN KENTUCKY. 777 
 
 rent and hire of this property for debts created by the wife in the 
 purchase of goods for the use of her family, and for which she and 
 her husband had executed their notes, expressing upon their face 
 the consideration, the court of appeals held that, under the Kevised 
 Statutes, this property was the separate estate of the wife, and that, 
 therefore, she and her husband could not charge or incumber it , in 
 any way; and it was declared that the proyision in the Eevised 
 Statutes concerning estates held in trust has no application to sep- 
 arate estates, which are sometimes more than rtiere trust estates. 
 It only applies to estates that are^ properly speaking, trust estates. 
 A separate estate is peculiar in its character, and can only belong 
 to a married woman, although it may be created previous to her 
 marriage. The trust estates, referred to in the acts are those that 
 may belong to any person whatever ; nor, has the provision of the 
 Kevised Statutes, which renders the real estate of the wife -liable 
 for such debts and liabilities contracted on account of necessaries 
 for herself and family, as may be evidenced by writing signed by 
 her and her husband, any application to her separate estate. That 
 provision relates to , the wife's general property, as contradistin 
 guished from her s&pa/fate estate. The same chapter contains the 
 provisions relating to her separate estate, which are wholly incon- 
 sistent with those concerning her other and. general property, by 
 which it clearly appears that a distinction between them was 
 intended to be made and observed.' {Stone v; Guthrie, 2 Mete. B. 
 520.) The right which a married woman acquires to property 
 under the operation of the statute, to be protected in her general 
 property, does not confer upon her the rights incidental to a sep- 
 arate estate in its legal acceptation. {Johnson v. Jones, 12 B. 
 Monroe's R. 329. Lillard, y. T'm'ner,lQ ib. 376.). "'i^hen there 
 is a general property, such as that by descent, devised generally 
 or conveyed by an ordinary deed; of conveyance to the wife, not 
 indicating a separate estate, the husband has certain well-defined 
 marital rights vesting in him. {Burgin v. Forsythe, 17 B. Mon- 
 roes B. 555.: Pe%i V. Malier, 14 ih. 247.) Eut a devise of 
 rents and profits of land for the separate and sole use qf the 
 devisee during her natural life is, in substance and effect, an appro- 
 priation of the land itself, and is a separate estate, and embraced 
 within, the provisions of the statute, and the devisee has no power 
 to convey or charge it., : ( Williamson: v. Williamson, 18 B. Mon. 
 R. 383.) : 
 
 98 
 
Y78 LAW OF COVERTURE. 
 
 § 589. The conveyance of the real estate of & feme-covert may 
 be by the joint deed of husband and wife, oi' by separate instru- 
 ment, but in the latter case the husband must first convey or have 
 theretofore conveyed. The deed as to the husband may be 
 acknowledged or proved and recorded as provided for in the pre- 
 ceding sections of the statute. A deed of a married woman to be 
 effectual, must be acknowledged before some of the officers named 
 in the statute, and recorded in the proper office. Previous to such 
 acknowledgment, it is made the duty of the officer to explain to 
 her the contents and effect of the deed separately and apart irom 
 her husband ; and thereupon, if she freely and voluntarily acknowl- 
 edge the same, and is willing for it to be recorded, the officer must 
 certify the same in the form prescribed by the statute. (2 Rev. 
 Stat. art. 4, oh. 47, §§ 21, 22.) 
 
 The provisions of the statute are sufficiently comprehensive to 
 enable a married woman to make a deed of jcvery description ; she 
 may join with her husband in an absolute deed of her estate to 
 pay a debt, or in a mortgage to secure a debt, and a court of 
 equity in such a case will not interpose to set it aside upon the 
 ground that such estate was in fact exempt by law from liability 
 for her husband's debts, if she voluntarily execute it in the form 
 prescribed. {Smith v. Wilson, 2 Mete. S. 237.) But when the 
 wife joiMS with the husband, it is merely a permission to him to 
 sell her estate, and she is not bound by any covenant in the deed. 
 {Falmouth Bridge Company v. Tihiatts, 16 £. Mon. H. 637. 
 Vide also Moore v. Moore, 12 ib. 665.) If a deed be properly cer- 
 tified to pass the title of a feme-covert, and lodged by the grantee 
 in the proper office in due time, it is effectual for all the purposes 
 of a recorded instrument, even against a feme-oovert grantor, 
 though neither the deed nor certificate be recorded ; and if a deed 
 be in fact recorded in due time, though the certificate remains 
 unrecorded, it effectually binds the feme. {Oedges v. West. Bap. 
 Theo, Inst. 13 B. Mon. R. 635.) 
 
 § 590. It may be added that the courts of Kentucky hold that, 
 in the absence of express agreement, the law of the matrimonial 
 domicile will govern the present property in that place, and all the 
 personal property then in possession, wherever situated, as between 
 husband and wife, provided the law of the place where such rights 
 are sought to bo enforced, does not prohibit such an arrangement ; 
 and that where there is a change of domicile after marriage, the 
 
MARITAL RIGHTS IN KENTUCKY. 779 
 
 riglits of ownership as between husband and wife to subseqiiently 
 acquired personal property, will be governed by the law of the 
 actual domicile ; provided the local laws do not expressly prohibit 
 the arrangement. {Townes v. Durbin, 3 Mete. It. 352.) The 
 principle here enunciated would seem to be general in its appli- 
 cation, and will, therefore, be recognized as binding in other states 
 as well as in Kentucky. 
 
 The court of appeals of Kentucky have just made an important 
 decision affecting the marital rights of women, though the rule 
 laid down may not be peculiar to that state. The court have held 
 in a case not yet reported, that a husband has no control over, and 
 cannot open his wife's private correspondence. In pronouncing 
 the opinion, the court said : " Nor would we admit that in this 
 age and country, a husband's rightful authority gives him during 
 marriage dominion over his wife's chaste and friendly correspon- 
 dence, not affecting his rights ; nor that in all the plentitude of 
 his marital power he could, without her free consent, take from 
 her or destroy or in any way control the possession or gift of such 
 letters. Any such ungracious interference with her confidential 
 correspondence would impair social confidence and disturb domes- 
 tic peace, and ought not to be encouraged by the judiciary, 
 especially as it could do no other good than to gratify a jealous 
 and prying curiosity. According to befitting decorum, and in 
 every valuable sense, such letters, written to her to keep and 
 read and cherish, are hers ; and if she, for reasons satisfactory to 
 her own taste and judgment, choose not to give or show them to 
 her husband, she has a right to keep them to herself as her own 
 inviolable property, and a confiding wife will never withhold from 
 a true husband her confidential letters without good and sufficient 
 reason. The existing code of both British and American law 
 recognizes the personal individuality and moral responsibility of 
 wives, and consequently guarantees their freedom of thought and 
 interchange of sentiment. Their ideas are their own ; their emo- 
 tions their own, and their affections their own. Here and now a 
 husband must not be a tyrant, and ought not to be a spy on his 
 wife who is neither his slave nor his mistress ; but should always 
 be his free and equal companion." 
 
 This is good reasoning and sound doctrine, and will be recognized 
 as binding in every Christian state. 
 
Y80 LAW OF COVMRTXTRE. 
 
 The legislature of Kentucky haa recently made provision for 
 additional facilities for the transaction of business by femes-covert, 
 provided they can obtain the preliminary co-operation of their hus- 
 bands. It is now provided that, on the joint petition of husband 
 and wife, the court of chancery may, by order and decree, empower 
 the wife to use, enjoy, sell and convey, for her own benefit, any 
 property she may own, and to make contracts, sue and be sued, as 
 a feme-sole, or to trade in her own name, or dispose of her own 
 property by will or deed. {Supplement to H&o. Stat. 1866, p. 728.) 
 
 The peculiarities of ,the Kentucky statutes, in respect to divoi'ce 
 and alimony, will be noticed when the subject of marriage and 
 divorce is considered.* 
 
 § 591. In the State of Tennessee it is made lawful for a/eTOe-c<wer< 
 to act in all respects as a feme-sole in aU cases where the husband has 
 been found by a jury to be insane and incapable to manage his own 
 affairs, and the verdict of the jury shall have been, confirmed by the 
 county court. {Laws of 1835, ch. 36, § 1.) Marriage settlements 
 between husband and wife ai-e valid, provided no more property is 
 concerned in them than the husband and wife had at the time of 
 their mamage.i All legacies made to the wife during coverture 
 are regarded as her separate property. {Laws of 1785, ch. 12.) 
 And a feme-covert may dispose of her own property by will. 
 {Laws of 1852, ch. 180.) The real estate of a fem^-covert is 
 exempt from the debts of her husband during her life, and the 
 husband and wife cannot be ejected from or dispossessed of the real 
 estate of the wife. The proceeds of the wife's real estate cannot 
 be paid to any person except by hei* consent upon privy examina- 
 tion by the court, or unless a deed or, power of attorney is executed 
 by the husband and wife, and her privy examination taken as in 
 other cases. Her real estate cannot be sold during her life without 
 her joining in the conveyance in the manner prescribed by law, in 
 which married women shall convey lands. {Code of 1858, §§ 2481- 
 2486.) 
 
 Certain household goods and other necessary property of a house- 
 holder are exempt from execution, seizure or attachment ; and when 
 a debtor absconds and leaves his family, the same property is 
 
 * The labor of ooqiplllng tho statutes and judicial deciBlons, In respect to marital riglits, In 
 Kentucky, has been greatly abridged by consulting Mr. Cord's work npon the legal and 
 equitable rights of married women, in which the most of the statutes are literally transcribed 
 and the points settled by Judicial authority are liberally given. (Cord's Husband and Wift, 
 60&-C31.) 
 
MARITAL RIGHTS IN TENNESSEE. 781 
 
 required to be set apart for the use of the wife and family, and 
 is exempt in the hands of the wife or children ; and wlien the 
 owner of such property dies, the same is exempt from execution in 
 the hands of the widow and children. ( Code o/" 1858, §§ 2107-2113.) 
 
 § 592. The courts of Tennessee hold that the husband and wife, 
 being tenants in common, if a wife consent to a sale of part of her 
 interest in lands so held by them, and joins her husband in a con- 
 veyance, made according to the forms of law, without an imder- 
 standing that the proceeds of the sale are to be held or Tested for 
 her use, or that she is to be remunerated out of the estate of her 
 husband, all her interest in the estate is gone, and the husband 
 holds the consideration for which it was sold in his own absolute 
 right, discharged from any claim of hers, which might under other 
 circumstances be paramount to his or that of his representatives, 
 either real or personal. {Ex parte Yarborough, 1 Swanks H. 202. 
 And vide Chester v. Greer, 5 Humph. S, 26.) 
 
 When the real estate of the wife was sold by a decree of the 
 court, and the sale reported and confirmed, without a divestiture 
 of title, the court held, that upon the death of the wife^ the hus- 
 band, as her admiaistrator, was entitled to her share of the notes 
 on hand for the purchase-money ; that by the confirmation of the 
 report the land was converted into personalty, to which the marital 
 right of the husband would attach. {Jones v. Walkup, 6 Sneed^s 
 B. 135.) 
 
 The statute which protects the lands of the wife from the cred- 
 itors of the husband is held to have reference alone to such lands 
 as the husband may hold or claim in right of the wife. It applies 
 only to cases where the fee is in the wife alone, and not to cases 
 where they are jointly seised in fee. Where land is conveyed to 
 husband and wife, the courts of Tennessee hold that they hold by 
 entireties ; but if land be conveyed to a man and woman, and they 
 afterward marry, as they took originally by moieties, it is held that 
 they will continue to hold by moieties after the marriage. {Ames 
 V. Normmi, 4 SneeoPs B. 683. Tide Young v. Lea, 3 SneeWs 
 B. 249.) 
 
 When a husband, having sold his wife's remainder or reversion- 
 ary interest in property, gets possession by himself or his assignee 
 during his life, upon the termination of the intervening estate, 
 such sale will be good against the wife. {Bugg v. FranlcUn, 4 
 Sneed's B. 129.) 
 
782 LAW OF COVERTURE. 
 
 It is held, under the laws of Tennessee, that in no case can a 
 feme-covert be sued, either separately or jointly with her husband, 
 upon a mere personal contract made by her during coverture, 
 although she live apart from her husband. {Harris v. Taylor, 3 
 SneeWs R. 636.) 
 
 The courts of Tennessee hold that the separate estate of a. feme- 
 covert cannot, in any case, be charged for debts, except on her 
 express agreement to that effect. {Cherry v. Clements, 10 I£um,ph. 
 R. 652.) 
 
 When the wife rented land and made com on it by the labor of 
 slaves, secured to her separate use, the corn was held to belong to 
 the wife, and was not subject to the husband's debts. Although a 
 feme-covert wiU, most likely, never again be able, in Tennessee, to 
 hold slaves as her separate estate, yet the principle decided in this 
 case is important. ( Yowng v. Jones, 9 Humph. B. 661.) A note 
 or obligation, executed by a feme-covert, has been held by the 
 courts of Tennessee to create no cause of action, and when the 
 declaration shows this fact it is held that such declaration is bad on 
 demurrer, and that the defect may be taken advantage of in arrest 
 of judgment. {Sheppard v. Kendle, 3 Humph. R. 80.) It is also 
 held, by the courts of Tennessee, that a deed from the husband to 
 his wife, or vice versa, is absolutely void, and nothing is conveyed 
 by it. \Perry v. Oill, 2 Humph. R. 218.) 
 
 § '593. In the State of North Carolina, all real estate belonging 
 to the wife at the time of her marriage, is exempt from sale on 
 execution against the husband, and cannot be sold or leased by the 
 husband except with the consent of the wife, acknowledged on a 
 private examination; and the proceeds of her land sold by the 
 court are secured to her separate use. A marriage settlement or 
 contract may be made, but as to creditors it is invalid, if a greater 
 value is secured to the intended wife and children than is received 
 with her marriage, and the estate of the husband over and above 
 his debts at the time of the marriage ; and in any suit, the burden 
 of proof is on the person claiming under the contract. A legacy 
 to the wife in general words, and not as an interest in, or a distribu- 
 tive share of, an estate falling to her during coverture, is taken as 
 a part of the portion received with the wife, if the estate of the 
 husband and wife is not sufficient at the time of the marriage to 
 make good the marriage contract. If the wife marry under the 
 age of fifteen years, all her estate is secured to her separate use, 
 
MARITAL RIBETS IN SOUTH CAROLINA. 783 
 
 free from all control or dominion of her husband. {B&o. Code, ch. 
 37, §§ 8, 11, 25 ; ch. 56, § 1 ; ch. 68, § 10.) 
 
 It has been held by the courts in North Carolina that the words 
 " for her sole and separate use," when apphed in a will to- an 
 unmarried female, do not create any such separate interest as upon 
 her marriage afterward, will prevent the property from vesting 
 fully in her husband. {Apple v. Allen, 3 iT. 0. B. 120.) And, 
 further, that the words in a will "to the only proper use and 
 behoof of my daughter," do not secure to a feme-covert a separate 
 estate so as to deprive the husband of his marital rights. {Baron 
 V. Holt, 2 Jones' Law B. 323.) 
 
 In North Carolina, lands under a conveyance to husband and 
 wife jointly, are held by the grantees by entireties, notwithstanding 
 the act of 1784 abolishing the right of survivor. {Motley v. White- 
 more, 2 Dev. <& Batt. B. 537.) 
 
 The deed of a feme-covert, without a private examination, as 
 directed by the act of assembly {Bev. Stat. ch. 37, §§ 9-14), is • a 
 mere nulhty and void ; and to give validity to her deed, it must 
 a^ear that her private examination has been had pursuant to the 
 act; if it appear by the clerk's certificate that "the deed was 
 , acknowledged in open court and ordered to be registered," the 
 court will not presume a private examination from such certificate. 
 {Den V. Barfield, 2 Murph. B. 390. Yide also Oreen v. Branton, 
 1 Dev. Eg. B. 500. Burgess v. Wilsm, 2 Dev. B. 306.) 
 
 The deed of a feme-cov&rt is void at common law, and can only 
 be effectual when taken according to the statute. {Sutton v. Sut- 
 ton, 1 Dev. (b Batt. B. 582. Crilchrist v. Brice, 1 Dev. c6 Batt. 
 Eq. B. 346.) 
 
 § 594. In the State of South Carolina, a feme-covert may be a 
 sole trader, in which case she is liable to be sued as if she were 
 single, and she may appoint an attorney to bring a suit either in 
 her own name or joined with her husband, in respect to her land 
 or any other action, and her husband has no control over such suit. 
 (2 Stat, at Large, 587, § 16, 593, § 12.) The will of a married 
 woman is declared void by statute. (3 Stat, at Large, 342, § 5.) 
 
 In the State of South Carolina the courts hold that an insolvent 
 husband may stipulate beforehand, that the proceeds of his labor 
 shall be appropriated to the sole and separate use of his wife, ani 
 that such a stipulation is no fraud on his creditors. {Hodges v. 
 Cobb, 8 Bich. Lam B. 50.) 
 
784: LAW OF COVERTURE. 
 
 A married woman has no power, under the statutes of South 
 Carolina, to release, before a magistrate, her interest in lands when 
 it is less than an estate of inheritance; It seems, however, that she 
 may release such an interest befbfe a judge, as she may amy estate.' 
 {Hays V. Hays, 5 Hick. Law R. 31. And, vide Reese v. Holmes, 
 5 Rich. Eq;. R. 531.) 
 
 The courts of South Carolina hold that when land is conveyed 
 to husband and wife, they become seised of an estate in entirety, 
 and that neither can alien so as to bind the other, and the sui'vivor 
 takes the whole. And it was held, in the same case, that the wife 
 having an estate for life, and the husband and wife being seised ot 
 the remainder in entirety, the estate fori life does not merge in the 
 estate in remainder. {Bonier v. Mullins, 4 Riohardson^s Equity 
 R. 80.) 
 
 § 595. In the State of Georgia, all the real estate belonging to 
 the wife at the time of her marriage, becomes vested in and passes 
 to the husband in the same manner as personal property does ; and 
 in case of the death of the husband thereafter, intestate, the same 
 descends and becomes subject to distribution in the same manner 
 as personal property. {CoWs Dig. of 1851, pp. 305, 306.) But 
 in all cases where a married woman has been deserted by her hus- 
 band, and has, while so deserted, by her exertions and those of her 
 children or otherwise, acquired property of any kind, the same is 
 declared to be exempt from the payment of her husband's debts, 
 and shall be vested in such married woman for her sole and sepa- 
 rate use, not subject to the debts, contracts or control of her hus- 
 band. {LoAJOs of 1851, 1852, Wo. 136.) 
 
 In Georgia, when persons intermarry, the statute provides that 
 the husband shall not be liable for the debts of the wife further 
 than the property received through the wife will satisfy ; and the 
 property received by the husband through the wife is in no case lia- 
 ble for the debts, defaults, or contracts of the husband existing at 
 the time of the marriage. {Laws of 1855, 1856, JSFo. 176.) And 
 it is made lawful for any married woman to deposit in any savings 
 bank or institution for savings, chartered in the State, any sums of 
 money, the proceeds of her own labor, or that of her children, 
 less than two thousand dollars taken in the aggregate, and to con- 
 trol, draw for, dispose of, devise or transfer, in any way whatever, 
 the sum or sums thus deposited, in every respect as if she were not 
 a married woman. {La/uos of 1865, 1866, No. 230.) 
 
MARITAL RIGHTS IN FLORIDA. 785 
 
 § 596. The courts have held that the act of 1845,; " to change and 
 point out the mode of inheritance, in certain cases therein men- 
 tioned," divests no right of a fem&^ole who, hefore the passing of 
 the act, was entitled to , property by inheritance. The property 
 vests in her. The marital rights of a husband who, after the 
 passage of the act of 1845, intermarries with a lady having a child 
 by a former marriage, and who is eiititled tO; property by inherit- 
 ance from a father who died anterior to the passage of that act, 
 are regulated by that act, and attach to the part only to which the 
 wife would be entitled under its provisions. {Bciby v. Boswdl, 23 
 Ga. B. 51.) 
 
 As the law stands in Georgia,, upon naarriage, the real, as well 
 as the personal, estate of the wife vests i^ the husband, and his 
 occupancy of the land ig evideUiJe that he had reduced it to pos- 
 session, even if that were necessary to the . cpnsuipimation of his 
 right {Boyston V. Boyston^ 21 Ga. B. 161); although it would 
 seem that a husband may give to his wife all his property, so that 
 she can hold it against debts subsequently contracted. {JEiom v, 
 Boss, 20 Ga. B. 210.) , 
 
 The courts hold that when a husband receives property as the 
 separate estate of his wife, treats it as such, and in his will recites 
 that, in consideration of that separate estate, he; makes no other 
 provision for her, his executor was estopped to deny the separate 
 estate of the wife in the same.. {WilUams.Y. Allen, 1^ Ga. B- 81.) 
 
 When a feme-eovert possesses and enjoys all the rights and 
 powers of ^femersole over her separate estate, thp courts hold that 
 she must perform the corresponding obligations of one. {Boston v. 
 Cwmmms, 16 Ga. B. 102.) ^ It seems that, under the statutes of 
 G-eorgia, ^feme-covert maybe constituted ^ free dealer, wi^,xa. 
 such case, she, is liable on all contracts; ujade in respect to such 
 business. ( Waters v. Beam,, 15 Ga. B. 358.) 
 
 § 597. In the State of Florida, when any female who is a citizen 
 of the state marries, or any female inarriea a , citizen of the state, 
 the female being, seised or pdssessed of, real or personal property, 
 her title to the same continues separate fl.nd, independent,, and 
 beyond the control ,of , her husband, notwithstanding her coverture, 
 and cannot be taken in execution for the debts of her husband, 
 although the property of the female will remain in the care and 
 management of the husband. So also married women may become 
 seised or possessed of real and personal property, during coverture, 
 99 
 
786 LAW OF COVERTURE, 
 
 by bequest, devise, gift, purchase, or distribution. Any married 
 ■woman having separate and independent title to property under 
 the statute is not entitled to sue her husband for the rents, hire, 
 issues, proceeds, or profits, of such property, and . the husband is 
 not allowed to charge the wife for his care and management of her 
 property. The husband and wife must join in all sales and 
 transfers of the property of the wife, and her real estate can only 
 be conveyed by the joint deed of the husband and wife, duly . 
 attested, authenticated, and admitted to record, according to the 
 laws of Florida regulating conveyances of real property. The 
 wife may make a will if sbe is of full age. If the wife die in the 
 state possessed of real and personal property, or of either species 
 of property, the husband takes the same interest in her property, 
 and no other, which a child would inhei-it ; and if she die without 
 children, then her surviving husband is entitled to administration, 
 and to aU her property, both real and personal. The wife is 
 required to file an inventory of her j^roperty in the circuit court 
 clerk's oflSce, within six months after it is acquired, at the peril of 
 its becoming liable to the debts of her husband ; although the 
 omission to file such inventory confers no rights upon the husband. 
 Such are substantially the provisions of the statutes in Florida 
 relating to marital rights. {Thompson's Dig. pp. 219, 220, 221, 222.) 
 
 The courts of Florida hold that the separate estate of a married 
 woman is liable in equity for a debt contracted for the benefit of it. 
 {Smith V. Poythress, 2 Fla. li. 92.) The courts also hold that the 
 claimant of ganancial right under the laws existing in the province 
 of Florida while it was a part of the Spanish dominion, takes the 
 same, subject to the debts contracted dm-ing the marriage, which 
 are to be paid out of the common property ; he cannot take this 
 property and leave the debts unpaid. {McHardy v. McHardy, 7 
 Fla. B. 301.) 
 
 § 598. In the State of Alabama, all property held by the wife 
 previous to her marriage, or which she became entitled to after the 
 marriage, in any manner, is declared by statute to be her separate 
 estate, and is not subject to the payment of the debts of the hus- 
 band. The property belonging to the wife vests in the husband as 
 her trustee, and he has the management of it, and is not required to 
 account for the rents, income or profits thereof; but such rents, 
 income and profits are not subject to the payment of the debts of 
 the husband. The property of the wife may be sold by the husband 
 
MARITAL liianTS IN ALABAMA. 787 
 
 and wife and convoyed by tliem jointly, by an instrument in writing, 
 attested by two witnesses. The proceeds of the sale, however, are 
 declared still to be the separate estate of the wife. The husband 
 may receive property coming to his wife, and his receipt thei-efor 
 is declared to bo a full discharge in law and equity. The separate 
 estate of the wife is liable for articles of comfort and support of the 
 household suitable to the degree and condition in life of the family. - 
 Married women may, by last will and testament, dispose of their 
 separate estate. But, on the death of the wife, the husband is 
 entitled to one-half of the personalty of her separate estate abso- 
 lutely, and to the use of the realty during his life, unless he has 
 been divested of all control over it by a decree of a court of chan- 
 cery, as provided by statute. If the husband of a feme-covertf 
 having a separate estate, becomes incapable of or unfit for the dis- 
 creet management and control of such separate estate, such husband 
 may be removed from the trust by bill in chancery ; and thencefor- 
 ward the wife has the entire control of her separate estate, and may 
 sue and be sued in her own name in respect to the same. And if, 
 by reason of intemperance, the husband becomes unfit to manage 
 such separate estate, it may be protected by an order of the court of 
 chancery, in the same manner that the separate estates of married 
 women are protected by the courts of chancery. {Code of 1852, 
 tit. 5, ch. 1, art. 3, §§ 1982-1995, 1998-2000.) 
 
 § 599. In the State of Alabama, the, surviving husband of an 
 intestate wife is entitled to one-half of her personal estate abso- 
 lutely, and to the use of her realty during life, whether in possession 
 or not. {Marshall v. Crow, 29 Ala. E. 278.) 
 
 If the husband abandon his wife, or, from imbecility, intemper- 
 ance, or profligacy, is unfit for the management of his estate, or 
 has wasted it, or from any cause has no estate but what the law 
 exempts from sale by execution, and the wife shall, by her own 
 industry, be able to maintain herself, or to accumulate property, 
 she may obtain an order of the court of chancery to have her earn- 
 ings and accumulations secured to her sole and separate use ; and 
 thenceforward she may act as a feme-sole, and as such she may 
 hold real or personal estate, may buy or sell, sue and be sued. 
 {Code of 1852, Ut. 6, ch. 1, §§ 2003-2005.) 
 
 It is settled in the State of Alabama, that a valid gift of per- 
 sonal property to the separate use of a married woman may be 
 made orally. {Maoh&n, v. Maohen, 38 Ala. E. 364) 
 
788 LAW OF COVERTURE. 
 
 The separate estate of a feme-covert, held under tne provisions 
 of the Code, can only be conveyed by her and her husband jointly, 
 by an instrument of writing, attested by two witnesses, and cannot 
 be subjected in equity to the payment of her debts and contracts. 
 {Wa/rfield v. Hcmesies,: 38 Ala. H. 518. And vide Alexander v. 
 Saulsbury, 37 ■iS. 513.) 
 
 § 600. The courts hold that the liability of the wife's separate 
 estate "for articles of comfort and support of the household" 
 {Code § 19:8Y) is limited to the property owned by her at the time 
 the contract is. made. {Ravisies v. Stoddart, 32 Ala. li. 599.) 
 And further that the (provisions of the Code (§§1891-97) respect- 
 ing the separate estates of married women do not apply to separate 
 estates created by deed, either before or since the adoption of the 
 Code. {Carman v. Turner, 32 Ala. R. 483.) 
 
 A quitclaim bond executed since the passage of the " woman's 
 law " of 1848, by which lands are conveyed to a married woman, 
 creates in her a separate estate under the act. {Fisk v. Stubbs, 30 
 Ala. B. 335.) And when the husband conveys property to a 
 trustee for his wife, she takes, as against him, a separate estate in 
 the property. {Spencer v. Godwin', 30 Ala. R. 355.) By the 
 statute, the " wife and mother " who has been deserted by her 
 husband, has the power to prosecute or defend suits in the name 
 of her husband. {Code § 2136.) Under this provision the court 
 held that it miist appear that the wife is a mother, and the husband 
 a father, in order that the wife may act under it. {Em parte Cole, 
 28 Ala. B. 50.) 
 
 The courts hold that under the Alabama statute, a feme-covert 
 may charge her separate estate by fe verbal or implied promise, for 
 labor or property contracted for the benefit of such separate estate. 
 {Walker v. Smith, 28 Ala. B. 569.) 
 
 "When the wife is seised in fee simple of lands at the time .of her 
 marriage, her husband, by virtue of the marriage, takes at least an 
 estate. for life, which is a legal freehold subject to levy and sale 
 under execution at law against him. {Cheek v. WaMman, 25 Ala. 
 B. 152.) 
 
 § 601. In the State of Mississippi, the legislatxire has enacted 
 that any married woman may become seised or possessed of any 
 property, real or personal, by direct bequest, demise, gift, purchase, 
 or disti'ibution, in her own name, and as if her own property ; pro- 
 vided the same does not come from the husband during coverture. 
 
MARITAL EIGHTS IN imSSISSIPPI. 7S9 
 
 And the rents, issues, profits, products, and income of citllcr real 
 or personal estate, or botli, owned by a.marricd woman at the time 
 of her marriage, or which may have accrued to her. afterward, are 
 declared by statute to imire to the wife as her separate ])roperty, 
 and exempt from her husband's debts ; a feme-covert may also pur- 
 chase property, real or personal, with her own money, which she 
 may have had at the time of her marriage, or which may have 
 accrued to her afterward, either as rents, issues, or profits' of licr 
 estate, or otherwise, and may take a conveyance thereof in her own 
 name, and in like, manner hold and enjoy the same as her separate 
 property, and if the husband shall purchase property in his own 
 name, with the money of the wife^ he will hold the same as trustee 
 for the use of his wife. (Rev. Code of 1857, ck. 40, § 5, arts. 23, 
 24.) It is further pi'ovided that all actions afiecting the separate 
 property of the wife may be prosecuted and defended in the joint 
 names of the husband and wife, and in case of an action concern- 
 ing her land she may defend alone, if her husband neglects to do 
 so. {Rev. Code 1857, ch. 4, § 5, art. 26.) 
 
 The court of appeals of the state has held that this statute is a 
 limitation of the marital rights of the husband, as they existed at 
 common law, but that it does not restrict such rights beyond the 
 express and positive language of the act, or by necessary implica- 
 tion therefrom. The court further held that the contract of mar- 
 riage is not made an exception to the well settled rule of the 
 common law, that the law of the place where contracts are entered 
 into, unless made with i a view to performance in another place, is 
 to determine the relative rights and obligations of the parties. 
 "Where there is no express contract, the law of the matrimonial 
 domicile will govern as to all the rights of the parties to their 
 present property in that: place, and as tO' all personal property 
 everywhere, and the same rule holds good as well to future acqui- 
 sitions as to present property, where there is no change of domicile ; 
 but where there is a change, the law of the actual and not of the 
 matrimonial domicile will prevail as to future acqiiisition of movable 
 property, and, further, that national comity, being a prinraple of the 
 law of nations, constitutes a part of the civil jurisprudence of every 
 state. Therefore, when the rule is settled by'whichithe right is to 
 be deteimined, and which would prevail iii' the courts of Missis- 
 sippi, where the contract was entered into, the court will ascertain 
 the rule by which, under the ^^jim gentium jprivatum" the tribu- 
 
T90 . LAW OF COVERTURE. 
 
 nals of a foreign state would be guided in determining the rights 
 of the parties arising out of the contract. Hence, though, by the 
 laws of Texas, where the wife died childless, her next of kin suc- 
 ceed to her separate property, yet, as by the laws of Mississippi, 
 where the contract of marriage was held in such event, the husband 
 is entitled ; in the conflict upon principles of settled law his rights 
 must prevail. {Lyon v. Knott, 2 Am. Law Beg. 604.) 
 
 § 602. In the State of Mississippi, all contra(fts made for neces- 
 saries for the family, wearing apparel for herself and her children, 
 by the wife, or by the husband with her consent, are made binding 
 upon the separate property of the wife. {Eev. Code 1857, ch. 40, § 5, 
 wrt. 25.) And any married woman may, either jointly with her 
 husband, or separately, execute any bond which may be necessary, 
 in any proceedings, either at law or in equity, to establish or 
 enforce her right to property or to the profits thereof, and the same 
 is declared binding upon her separate property. {Bev. Code 1857, ch. 
 40, § 5, art. 31.) The provisions of the statutes which empower a 
 feme-covert to dispose of her separate estate in the mode therein 
 prescribed; do not apply to a case where the wife did not acquire 
 her separate estate under these acts. {Andrews v. Jones, 32 Miss. 
 B. 274.) 
 
 The courts of Mississippi hold that the jewelry and furniture of 
 the wife are paraphernal property, and may be sold by her, and 
 the proceeds invested in other property in the name of a trustee, 
 for her separate estate. {OuUy v. E.vll, 31 Miss. B. 20.) 
 
 The right of the widow to the personal estate of her deceased 
 husband, exempt by law from execution, is a chose in action, and 
 goes to a subsequent husband, under the rule of the common law, 
 her interest therein not being protected by the acts of 1839 or 1846. 
 The courts hold that those acts for the protection of married 
 women only extend to the property enumerated in them. {Lowery 
 v, EerleH, 30 Miss. E. 19.) 
 
 § 603. In the State of Louisiana they have what is called a part- 
 nership or community of acquests or gains, which consists of the 
 produce of the reciprocal industry and labor of both husband and 
 wife, and of the estates which they may acquire during marriage. 
 The husband is the head and master of the community, manages 
 its effects, disposes of the revenue, and may alienate the same. 
 {Civil Code, %% 2371, 2374.) The statutes of the state also provide 
 that either of the married couple may, either by marriage contract, 
 
MARITAL RIGHTS IN LOUISIANA. 791 
 
 or during the marriage, give to the other, in full property, all 
 that he or she might give to a 'stranger. {Rev. Stat, of 1856, p. 
 T9, § 17.) 
 
 It is further declared by statute that, in all cases, when either 
 husband or wife shall die, leaving no ascendants or descendants, 
 and without having disposed by will and testament, of his or her 
 share in the community property, such share shall be held bj' the 
 survivor in usufruct during his or her natural life ; and when there 
 are children of the issue of the marriage left with the survivor of 
 husband or wife, the share of the deceased in the community prop- 
 erty shall be held by the survivor in usufruct during his or her 
 natural life ; provided that such usufruct shall cease when the 
 survivor shall enter into a second marriage. {Bev. Stat. p. 103, 
 § 2, and p. 104, § 2.) 
 
 The statute further provides that the wife shall have a legal 
 mortgage on her husband's immovables ; but when, by a marriage 
 contract, the parties, being of full age, shall agree that the legal 
 mortgage of the wife shall exist only on one or more immovables 
 belonging to the husband, all of the immovables apd other property 
 of the husband not included therein sha,ll remain free and released 
 from such legal mortgage ; provided that the wife cannot legally 
 stipulate that no mortgage whatever shall exist in her favor. {Rev. 
 Stat. p. 242, § 1.) And the statute also declares .that all married 
 women over twenty-one years of age, may be authorized by their 
 husbands to borrow money, or contract debts for their separate 
 benefit and advantage, and secure the same by mortgage upon their 
 separate estate, paraphernal or dotal ; provided that the sanction 
 of the judge of the district court be given to the same; and a 
 feme-covert may also relinquish her rights in favor of third persons 
 a.nd may appoint agents to contract for her. {Rev. Stat. p. 
 660, §§ 1-6.) 
 
 § 604. The courts of Louisiana hold that property bought with 
 the funds of the wife, or acquired by her in consequence of a 
 datien en payermeni made to her by her tutor, and which never 
 came under her husband's administration, is her separate or para- 
 phernal property. {Dominiquez v. Zee, 17 La. R. 296.) 
 
 The paraphernal property of married women is not bound for 
 the debts contracted by the husband while at the head of the com- 
 munity. Neither are the fruits liable when the wife administers 
 her own property. {Lambert v. Franchebois, 16 La. R. 1.) 
 
792 ZAW OF COVERTURE. 
 
 The courts have declared that the partnership or commiinity 
 cousists of the profits of all theeffects of which the husband has the 
 administration and enjoyment, either of right or in fact, of the 
 produce of the reciprocal industry and labor of both husband and 
 ■wife, and of the estates which they may acqiiire during the mar- 
 riage, either by donations made jointly to them both, or by 
 purchase, or in any other similar way^ even although the purchase 
 be only in the name of one of the' two, and not of both, because in 
 that case the period of time when the purchase is made is alone 
 attended to; and not the person who. made the purchase. At the 
 time of the dissolution of the marriage, all effects which both hus- 
 band and wife reciprocally possess are presumed common effects or 
 gains, uilless satisfactorily proved which of such effects they brought 
 in marriage, or have been given them separately, or they have 
 respectively inherited. :(IIv,ntmgtony. Legros, 18 La. An. H. 126.) 
 
 All property which is not declared to be brought in marriage by 
 the wife, or to be given to her in consideration of the marriage, or 
 to belong to her at the time of the marriage,! is paraphernal, and 
 the wife has a right to administer personally her paraphernal prop- 
 erty without the assistance of her husband. The wife has, even 
 during marriage^ a right of action against her husband for the res- 
 titution of her pai:apheriial effects and their fruits. {Pecquet y. 
 Pecquet, 17 La. An. E. 204.) ■ ' , 
 
 The incapacity of the wife to contract, in Louisiana, is removed 
 by the assent of the husband, but this is true only in cases where 
 she can legall/y contract. For example, she can only contract 
 with her husband "in, certain cases ; she cannot, except in certain 
 enumerated cases^ dispose of her dotal property; she cannot, 
 when there exists a community of acquests and gains between her 
 and her husband, acquire property for her separate account. To 
 this last rule there are exceptions. {BouUgvy v. FortMr,!^ La. 
 An. R. 209.) . : ' 
 
 § 605. IntheStateof Arkansas any married woman may become 
 seised and possessed of any property, real or personal, by direct 
 bequest, devise, gift or distribution, in her own right and name, and 
 as of her Own property"; provided, it does not come from her hus- 
 band after coverture. And whenever the deed, bequest, grant, 
 decree or other tranrfer of property of any kind, to any married 
 woman, shall exprfessly set forth' that the same is designed to be 
 held exeinpt from the liabilities of her husband,. such property and 
 
MARITAL SICfSTS IN ARKANSAS. 793 
 
 the natural increase thereof ■will be deemed and considered as 
 belonging exclusively to such married woman, exempt, fi'otn the 
 debts and liabilities of her husband. {Dig. of 1858, ch. Ill, §§ 1, 
 8.) The courts of Arkansas hold that chancery has no jurisdiction 
 to. enjoin the sale of the property of the wife under an execution 
 against the husband, when the wife, after the sale, would have an 
 adequate remedy to recover back the possession of the propierty. 
 {Lovctte v. Zongmire, 14 .4?'^. E. 339.) It is held that, under the 
 general law of Arkansas, when personal property comes to the wife 
 by distribution, the title vests in the husband, and the property is 
 liable for his debts ; and if in such a case, the wife sets up a 
 separate estate in the property, under the statute of another state, 
 such statute is a matter of fact to be established by competent 
 evidence. {Tatum y.Mmes, 15 Ark. B. 180.) 
 
 "Whenever a perfect title; according to the laws in force in the 
 state in which it is made,, vests property in the wife, or in trustees 
 for her use, such title is held to remain in her notwithstanding any 
 change of residence of the husband, who mky exerbise an apparent 
 control and ownership of the propertyj or any act of fraud or 
 negligence on the part of the trustee or. the husband ; nor is she 
 required to do any act to protect her title. And if her separate 
 property is levied upon and sold for the husband's debts, no 
 demand is held to be necessary to entitle the trustee to recover 
 against the purchaser in a,h action of detinue. {CfNeiU •^.Mender- 
 son, 15 ArTc. R. 235. Aixdvide McDwiiid v. Grace, Ih. 465.) 
 
 Under the statutes of Arkansas, the courts of that State hold that 
 property may be conveyed by the husband directly td his wife ; in 
 which case the husband will take the legal' interest and be treated 
 in equity as a trustee for the wife. {Dyer v. Bean, 15 Arh. B. 519.) 
 
 It is held that a married woman may charge her separate estate 
 in equity for the payment of a debt contracted by her. {Oswalt v. 
 Moore, IQ ArTc. B.2h1.) 
 
 § 606. The proceeds of the sale of the sole and separate property 
 of the wife are to be regarded as her separate isstate ; and so are 
 lands purchased with such proceeds, and they are subject to the same 
 rules as was the originaF estate before it was sold and converted 
 into a different species of property; and lands purchased with the 
 separate means of the wife are not subject to execution for the debts 
 of theliusband. {Ki^Jc^atrich-v. Bufiord,21Arh. B.'iiQB. Allen 
 y. Sightown, li. 316.) r '^ ■ ' "' . 
 
 100 
 
794 LAW OF COVEETUBE. 
 
 To enable a married woman to hold separate property under the 
 married woman's law, it must be recorded as hers in the county in 
 which she lives, by being scheduled under the law ; or, if devised, 
 granted, decreed or transferred to her, it must be by words that 
 expressly set forth that the property is to be held by her, exempt 
 from the liabilities of her husband. {Beeman v. Cowser, 22 Arh. 
 R. 429.) 
 
 The court holds that the wife has no legal authority to dispose 
 of the husband's property by sale or otherwise, and to bind him by 
 a contract without a power from him, or his subsequent approval 
 or ratification. {Dunnahoe v. Williams, 24 Ark. E. 264.) 
 
 § 607. In th6 State of Texas, parties intending to enter into the 
 marriage state may enter into what stipulations they please, provi- 
 ded they be not contrary to good morals, or to some rule of law ; 
 and in no case can they enter into any agreement, or make any 
 renunciation, the object of which would be to alter the legal orders 
 of descent, either with respect to themselves in what concerns the 
 inheritance of their children or posterity, which either may have 
 by any other person, or in respect to their common children, nor 
 can they make any valid agreement to impair the legal rights of 
 the husband over the person of the wife, or the persons of their 
 common children. Every matrimonial agreement must be made 
 by an act before a notary public and two witnesses ; and the same 
 cannot be altered after the celebration of the marriage. {Paschal'' s 
 Annotated Dig. arts. 4632, 4633, 4634.) 
 
 All property, both real and personal, of the husband, owned or 
 claimed by him before marriage, and that acquired afterward by 
 gift, devise, or descent, as also the increase of all lands thus 
 acquired, are declared to be his separate property ; and the rule is 
 the same with respect to the wife, except that during the marriage 
 the husband may have the sole management of his wife's property. 
 All property acquired by either husband or wife during the mar- 
 riage, except that which is acquired in the manner before specified, 
 will be deemed the common property of the husband and wife, 
 and, during the coverture, may be disposed of by the husband only ; 
 it is made liable for the debts of both husband and wife, con- 
 tracted during the marriage for necessaries ; and upon the dissolu- 
 tion of the marriage by death, the remainder of such common 
 property will go to the survivor, if the deceased has no child or 
 children ; but if the deceased have a child or children, the survivor 
 
MARITAL RiaSTS IN TEXAS. 795 
 
 will be entitled to one-half of said property, and the other half 
 will pass to the child or children of the deceased. {PaschaVa 
 Annotated Big. arts. 4641, 4642.) 
 
 The husband or wife may by last will and testament give to the 
 survivor's husband or wife the power to keep his or her separate 
 property together, until each of the several heirs shall become of 
 lawful age, and to manage and control the same under the provi- 
 sions of the statute, and such other restrictions as may be imposed 
 by will ; provided, the surviving husband or wife, is the father or 
 mother, as the case may be, of the minor heirs; and provided, 
 further, that any child or heir entitled to any part of said property 
 shall, at any time, upon coming of age, be entitled to receive 
 his distributive portion of said estate. {Paschal's Annotated Dig. 
 art. 4653.) 
 
 § 608. The intention of the husband, in taking the conveyance 
 of community property in the name of his wife, has no effect upon 
 either his own or the rights of the wife. The law prescribes the 
 operation of such deed, irrespective of the motives in taking it, in 
 either the name of the husband or of the wife, or of both jointly ; 
 for, whether taken in the one form or the other, the community 
 > character of the property is not changed. {Smith v. Sirahan, 16 
 Tex. H. 314. But vide Biggins v. Johnson, 20 ib. 389.) 
 
 Under the statutes as they now exist, the separate property of 
 the wife cannot be charged with the debts of the husband con- 
 tracted for necessaries for himself, although it may be bound for 
 necessaries bought by her for herself and children ; but she is not 
 bound to support her husband, and necessaries procured by him 
 for himself cannot be charged upon her property. (Magee v. 
 White, 23 Tex. B. 180. Vide Brown v. Eeter, 19 ib. 346.) 
 
 The rights of husband and wife to property Acquired during 
 coverture are precisely equivalent ; the only difference being that 
 he has the management and control of it, for the benefit of both. 
 But where the husband leaves his home and is absent for several 
 years, the wife acquires a right to manage, control, and dispose of 
 the common property, as well as her separate property. And when 
 the husband was absent for nearly six years, and, in the mean time 
 the wife had purchased a tract of land, and made a deed of gift of 
 a portion of it to her child by a former husband, the deed of gift 
 was sustained by the court. {Wright v. Says, 10 Tex. B. 130. 
 And vide Futlerton v, Boyle, 18 ib. 3.) 
 
796 LAW OF COVERTUBE. 
 
 It has been held, that when the wife, without good cause, volun- 
 tarily abandons her husband for several years (say three or four) 
 immediately previous to his decease, she forfeits her claim to the 
 homestead and widow's allowance. {Earle v. Earle, 9 Tex. i2.630.) 
 
 The relation between husband and wife is such that the wife is 
 often called upon to act as the impliedly authorized agent of the 
 husband, even in the management of his own property ; more 
 especially may she manage and control her separate property dur- 
 ing his absence. {JBlanchet v. Dugat, 5 Tex. H. 507.) 
 
 § 609. Husband and wife are not regarded as one person under 
 the laws of Texas ; the existence of the wife is not merged in that 
 of the husband. Most certainly is this true, so far as the rights of 
 property are concerned; they are distinct persons as to their 
 estates; when property is in question, the husband is not a baron, 
 nor is the wife a covert, if by the former is meant a lord and 
 master and by the latter a dependent creature under protection 
 or iniiuence. The husband and wife are co-equals in life ; and at 
 death the survivor, whether husband or wife, I'emains the head of 
 the family, Hemphill, Ch. J., in giving the opinion of the court, 
 remarked: "The staunchest advocates of the doctrine of ■wowara 
 merger during the existence of the marriage, will not assert that 
 the sex, of itself, disqualifies a female from being the head of a 
 family. Even the common law, hostile as it is to the rights of 
 married women, confers on the single woman, or spinster, as she is 
 termed, the civil rights and capacities of man. She requires no 
 guardian to protect her person or property. In legal contempla- 
 tion and in fact, she is capable of managing and disposing of her 
 possessions and interests prudently and advantageously. The 
 statute does not declare that the head of the family must be of 
 the stronger sex ; and the occu.pant, whether of the one sex oi 
 the other, is entitled to all the rights and exemptions pertaining by 
 law to the position." On tWs reasoning the court held that, at the 
 death of the husband, the surviving wife becomes the head of 
 the family ; and, in the absence of the act requiring the probate 
 court to set apart certain property for the sole use and benefit of 
 herself and children, she would nevertheless be entitled to retain 
 out of the community property, the homestead and other property 
 which is exempted from forced sale ; and that the one hundred and 
 second section of the act of 1848 {a/rf,. 1211), must be construed 
 with reference to existing laws on the subject of exAaptions ; and, 
 
MABITAL BI6BTS JlN T^XAS. T97 
 
 1)0 its expressions or constructions what . tkey may, they cannot 
 affect the homestead guaranteed by the constitution to every head 
 of a family. ( Wood v. Wheeler, 1 Texas E. .13.) 
 
 Audit seems that the husband may mafce a valid bill of sale or 
 deed of gift to his -wife, which will be enforced against his heirs. 
 {Bartwell v. Jackson, 1 Texas H. §76.) 
 
 § 610. By the common law, during coverture, the separate, legal 
 existence of the wife is extinguished; and,, as a consequence, suits 
 in relation to her rights must be in the joint names of husband 
 and wife, and he may sue alone for all such property of the wife 
 as he can dispose of for his own use. When the suit is in relation 
 to the separate estate of the wife, the suit must be brought by the 
 wife alone, in the name of her next friend. If she be joined with 
 her husband, or the suit be brought in his name as next friend, the 
 suit will be regarded as that of the husbaud alone, and will not 
 prejudice the separate interest of the wife, nor bar a subsequent 
 suit by her next friend ; and, as a consequence of this right of the 
 wife, the defendant may demur unless the sxiit be bi'Ought in the 
 name of the wife by her pvoohein ami. But the courts of Texas 
 hold that these distinctions, and the grounds on which they pro- 
 ceed, are unknown to their system, of jurisprudence. The right of 
 the wife in her own property cannot be affected under their laws 
 by the circumstance of the joinder of the husband in a suit for its 
 recovery. Let it be recovered by whom and how it may, it 
 remains unchanged, the absolute j)roperty of the wife. By the 
 statute of 1840, article 2415, it is declared that the husband may 
 sue either alone, or jointly with his wife, for the recovery of any 
 effects of the wife. This vests him with authority to prosecute the 
 suit in his own name, or by joinder with the wife at his option. 
 The law constitutes him her agent or attorney in this particular ; 
 and his acts in this capacity, done ^n good faith, must be binding 
 and conclusive upon his principal. She would be, entitled to no 
 redress for errors in the proceedings, of which he could not avail 
 himself. If he were incompetent, or was endangering the. rights 
 of his wife by negligence, the court would, doubtless, on proper 
 representation, interfere for her protection ; or if he were guilty of 
 fraud or collusion, she might impeach the decree vitiated by such 
 fraud. But the husband should then be made defendant, and not 
 a co-plaintiff with his wife. {Cannon v. Hemphill,^ Texas B. 184. 
 And vide Bossier v. Dear, 24 ib. 11.) 
 
T98 LAW OF COVEBTUBE. 
 
 § 611. Whether the authority of the legislature to pass laws 
 more clearly definiug the rights of the wife to her separate prop- 
 erty, and to the community property, is the same in respect to 
 property acquired before the adoption of the Constitution, as it is 
 in respect of property acquired afterward, seems to be a question 
 not definitely settled. But the courts hold that the principles and 
 rules of the common law, as to the effect of coverture, so far as 
 they affect the capacity of the wife to hold property in her separate 
 right, are totally expunged from their code of jurisprudence, and, in 
 an investigation of the rights of the wife, must be altogether dis- 
 carded from consideration. The capacity of the wite to hold 
 property in her own right, separate and apart from her husband, 
 is as complete and perfect as that of the husband to hold property 
 in his own right, separate and apart from his wife. There is not 
 the slightest difference, in this particular, between their civil rights 
 and capacities. {Edrington v. Mayfield, 5 Texas It. 363.) 
 
 It has been judicially declared that it was the obvious purpose 
 of the act of 1840, which introduced the common law, to preserve 
 from the wreck of the Spanish system of jurisprudence those rules, 
 with some modifications, which regarded the matrimonial union, 
 so far as property was concerned, as a species of partnership, in 
 which each partner might have separate estates or property, as 
 well as common stock of acquisitions and gains. The distinction 
 between the. separate property of the wife and property limited to 
 her sole and separate use, is not recognized by the Texas laws. 
 The property denominated separate is regarded as limited to the 
 sole and separate use of the wife, and necessarily excludes the 
 common law rights of the husband in such property by virtue of 
 the coverture. {Cartwright v. JBoUis, 6 Texas JR. 152.) 
 
 But the marital rights of persons in the state, married before the 
 introduction of the common law, are to be regulated by the law 
 " as it aforetime was." {Smith v. Smith, 1 Texas li. 621. And 
 vide Portis v. Parker, 22 i5. 699.) The private property of each 
 partner to the matrimonial union must, as a general rule, bear its 
 own charges and expenses. (Womackv. Womach, 8 Texas B. 397.) 
 
 § 612. Property purchased during the mari-iage, whether the 
 conveyance be made to the husband or wife separately, or to them 
 jointly, is presupied to belong to the community. This presump- 
 tion may bo rebutted by clear and satisfactory proof that the pur- 
 chase was made with the separate funds of either husband or wife ; 
 
MARXTAL EiaSTS IN TEXAS. 799" 
 
 in which case it remains the separate property of the part)' -whose 
 money was employed in the acquisition. It seems that, in order 
 to rebut the presumption that property purchased during marriage 
 is common property, where a creditor is concerned, it must bo 
 shown that the funds with which the purchase was made were 
 owned by the claimant before the marriage, or were acquired by 
 gift, devise or descent, or that such funds were the proceeds of 
 property thus acquired. {Huston v. Curl, % Texas H. 239. Mitch- 
 ell V. Marr, 26 ih. 329.) 
 
 A married woman was capable of receiving a concession of land 
 
 by onerous title under the colonization laws of Mexico and Coa- 
 
 huila and Texas ; and such a grant became community property, 
 
 and the husband could dispose of it in any mode not intended to 
 
 , defi-aud the wife. {Edwards v. Jaines, 7 Texas H. 372.) 
 
 The law create^ a presumption that all property held by husband 
 and Avife is common property and subject to the payment of the 
 debts of the husband. {Lott v. Keach, 5 Texas S. 394:.) But there 
 is no presumption that property in the possession of a conjugal 
 partnership belongs to the husband rather than to the wife. 
 When the matrimonial union has continued for any considerable 
 period, the presumption is strong that the property belongs to the 
 common stock of acquests and gains. {Edrington v. Mayfield, 5 
 Temas E. 363.) 
 
 § 613. The general rule is, that, when a wife joins her husband 
 in a mortgage of her estate, for his benefit, as between the hus- 
 band and wife the mortgage will be considered the debt of the 
 husband ; and after his death, the wife, or her representatives, will 
 be entitled to stand in the place of the mortgagee, and have the 
 mortgage satisfied out of the husband's assets. But when the forms 
 of law are all complied with, the courts will examine with vigi- 
 lance transactions in which the wife disposes of or charges her 
 separate property, and protect her from undue influence, or the fraud 
 or compulsion of her husband and others ; but such fraud or com- 
 pulsion must be averred by the wife, and be sustained by proof, in 
 an action to set aside a conveyance. {SolUs v. Francois, 5 Texas 
 B. 195.) 
 
 A married woman in Texas cannot make a contract by which 
 she herself, or her separate property, will be rendered liable. The 
 act of 1840, " regulating marital rights," was intended to secure the 
 separate property of the wife, and its object would be defeated if 
 
800 • LAW OF COVERTURE. 
 
 she could bind it by her separate contracts during the coverture. 
 The common law rule respecting the capacity of the wife to con- 
 tract Was not changed by the statute, {Eavcmcmgh v. Brown, 1 
 Tems B. 4:'i\.) 
 
 The wife loses many of her civil rights by marriage. The law 
 has deemed it sound policy, and beneficial to her interest, that cer- 
 tain onerous restrictions should be imposed upon her ability to deal 
 with her separate estate. And if it be shielded from her voluntary 
 disposition, a fortiori, would it be protected against debts, engage- 
 ments or contracts of her husband, unless made for the benefit of 
 Such estate, or under certain circumstances, for the support of the 
 wife and family. The constitutional provision, that "laws shall 
 be passed " more clearly " defining the rights of the wife, in relation 
 as well to her separate property as to that held in common with , 
 her husband," cannot, in any degree, have been intended to 
 abridge the rights of the wife in her separate estate. {Edringt&n 
 V. Mayfield, 5 Texas B. 363.) ■ 
 
 It seenis that the separate property of the wife is liaUe to 
 respond in damages' for the frauds in which she participates, in 
 relation to her own property, and which inure to her exclusive 
 benefit. {Howard v. North, 6 Totos ^. 290.) The distinction, 
 in some of the cases, exempting the separate estate of the wife 
 from liability, because credit is given to the husband and not to 
 the wife, has been declared to be frivolous in Texas. {GartwrigTit 
 v. Hollis, 5 Texas B. 162.) The privy examination of the wife 
 apart from her husband is indispensable to the conveyance of the 
 separate property of the wife. {Callahan v. Patterson, 4 Texas 
 R. 61.) A married woman can, jointly with her husband, make 
 a valid conveyance of lands, her separate property, by an attorney 
 in fact duly appointed and authorized by power of attorney, exe- 
 cuted and acknowleidgfed in the manner prescribed by law for the 
 execution and acknowledgijient of deeds of conveyance, {Pattqn 
 V. King, 26 Texas B. 685.)] 
 
 A husband may make a gift or grant of the community, or liis 
 separate property, to his wife, by a conveyance directly to her, 
 without the intervention of trustees. And a deed from the hus- 
 band to his wife, purporting to be for a valuable consideration, if 
 without consideration, will be upheld as a donation or gift. ' {Story 
 V. Mitohell, 24 Texas B. 305. And vide Reynolds v. Lansford, 16 
 il. 286. Bennett v. Cooks, 15 ib. 67. Mttsv. Fitts, 14 ib. 443.) 
 
MARITAL RIQHTS IN TEXAS. ' 801 
 
 § 614. On the death of the wife ■without children, the com- 
 munity property belongs to the surviving husband, and neither the 
 county court nor the administrator of the wife can exercise any 
 control over it ; and it would seem that, in such case, the husband 
 is not required to file an inventory and appraisement imder the 
 statute of 1848, better defining the marital rights of the parties. 
 ( Wall v. Clarh, 19 Texas H. 321. And vide Fishhack v. Young, lb. 
 615.) The statute of 26th August, 1856, provides, " that it shall 
 not be necessary for any surviving husband to administer upon the 
 commimity property of himself and his deceased wife, but he shall 
 have the exclusive management, control and disposition of the same 
 after her death, in the same mariner as during her life, subject to 
 the provisions of this act." The third section of the act requires 
 the husband, in the event his wife had a surviving child or children, 
 to file an inventory of the common property. The fifth section 
 empowers the county court to require a bond from the husband, or 
 to " appoint administration over the estate, as in other cases," 
 upon the heirs of the wife, showing that the " husband is wasting 
 or mismanaging, or is about to waste or mismanage, said com- 
 munity property, or is about to remove it out of the state, or 
 otherwise dispose of it in such manner as to injure or defraud the 
 right of such heirs." {Laws of 1856, Adjourned Session, page 61.) 
 This law was in force when the case of Wall v. Claris, supra, was 
 decided, and the statute received a construction, in the decision of 
 the case, as above indicated. 
 
 The husband has authority, as survivor of the connubial partner- 
 ship, when there is no administration upon the wife's estate, to 
 fulfill all contracts respecting the common property, entered into by 
 himself alone or jointly with the wife, before her death ; and 
 where the heir of the wife sought to set aside a conveyance of the 
 surviving husband, which was made in pursuance of such prior 
 agreement by the husband and wife, on the ground that the con- 
 tract had been forfeited by the obligee, and become null during 
 the life of the wife, it was held by the court that he must make 
 strict proof. {Primm v. Barton, 18 Texas E. 206.) 
 
 § 613. When the husband is absent, leaving no one else author- 
 ized to take care of the common property, the wife has the implied 
 authority to do so. In such a case, there is no reason or rule of 
 law that' would prohibit the wife from making such contracts 
 
 101 
 
802 LAW OF COVERTURE. 
 
 respecting the community property as are necessary for its pre- 
 servation and the support of herself and children. 
 
 When the husband kept a hotel, which was the common prop- 
 erty of himself and wife, and, being arrested for crime, broke jail 
 and escaped, and the wife,- alleging that she was in a state of des- 
 titution, rented the hotel for a year for a reasonable rent in money 
 and board for herself and children, it was held. that she had author- 
 ity to do so, and that the contract was such as the circmnstances 
 justified, and, where the circumstances exist which give the wife 
 authority to make contracts during the absence of the husband 
 from his home, it would seem that her contracts may be proved or 
 acknowledged in the same manner as those of & feme-sole, and that 
 a privy examination is not essential to give them effect. (GheeTc v. 
 Bellows, 17 Texas R. 613.) 
 
 § 616. Where the deed to real property is taken in the name of 
 the wife, and part only of the purchase-money or consideration is 
 her separate property, and her husband gives his note for part of 
 the purchase-money, upon which judgment is afterward obtained, 
 without making the wife a party to the suit, a sale by virtue of 
 execution on such judgment will only pass the interest of the com- 
 munity, and the separate interest of the husband, if any, and not 
 the separate ' interest of the wife, corresponding to the proportion 
 of the consideration paid out of her separate property. (Claiborne 
 V. Tanner, 18 Texas R. 68.) 
 
 It has been judicially declared that if there be any good sense in 
 the rule, that, when credit is once given to the wife, the husband 
 will not be liable, though the articles be necessary, it is in cases 
 where the wife has a separate income, or separate property of her 
 own, and under her own control. 
 
 The liability of the husband for necessaries furnished the wife, 
 is not affected by the fact that she had, without allegation of fault 
 on her part, deserted her husband's house, and was taking measures 
 to procure a separation of the marital relation, of all which the 
 party plaintiff had notice, and dealt with the wife as if the separa- 
 tion had been then obtained, taking her note for the amoimt of the 
 debt incurred ; nor by the further fact, taken in connection there- 
 with, that since the necessaries were furnished, the wife had pro- 
 cured a separation and a separate maintenance amply sufficient for 
 her support and the payment of this demand. And it wotild seem 
 that the wife would be entitled in many instances to necessaries, that 
 
MARITAL RIGBTS IN TEXAS. 803 
 
 is, that the husband would he liable for necessaries furnished her, 
 although the separation may have been by her fault ; as, for instance, 
 where her sepai-ate property is under her husband's control, or there 
 is a sufficient amount of common property ; and where the wife is 
 separated from the husband without fault on her part, her hus- 
 band's express prohibition to furnish a given article is declared 
 to be entitled to little or no weight. {Blaoh v. Bryan, 18 Texas 
 B. 453.) 
 
 The constitution of the state declares that a homestead for the 
 head of a family, not exceeding two hundred acres of land, not 
 included in a town or city, shall be exempt from sale on execution, 
 and there have been several decisions of the court in respect to 
 this provision ; but it is thought to be unnecessary to refer to them. 
 It has been held that the design of the exemption was not only to 
 protect citizens and their families from the miseries and dangers of 
 destitution, but also to cherish and support in the bosoms of indi- 
 viduals, those feelings of sublime independence which are so essen- 
 tial to the maintenance of free institutions. The provision does 
 not exempt from forced sale, two hundred acres of land, not 
 included in a town or city, for a homestead ; but a homestead not 
 to exceed two hundred acres. {FranMin v. Coffee, 18 Texas R. 
 413. Yide also on the subject of the homestead, Paschal v. Cush^ 
 "man, 26 iJ. 74. North v. Shaver, 15 ib. 175. Baxter v. Dear, 
 24 ib. 17. Stanley v. Greenwood, lb. 224. Norris v. Duncam, 21 
 ib. 594.) 
 
 Snch are the distinctive peculiarities created by statute in the 
 several states relating to married women and marital rights, and 
 the leading decisions of the courts under the statutes of each state. 
 It will be observed that there is a considerable variety in the 
 statutory provisions, and yet the decisions of the courts upon the 
 subject may often be consulted to great advantage in construing 
 the local statute of any particular state. 
 
804 LAW OF COVMRTUSB. 
 
 CHAPTER XXXVIII. 
 
 THE INSTITUTION OF MAEEIAGE — HOW MAUEIAGE IS EEGAEDED IN 
 LAW — DIFEEEENT VIEWS UPON THE SUBJECT — SOLEMNIZATIOK OF 
 MAEEIAGE. 
 
 § 61Y. Maeeiage is the conjugal union of one man witli one 
 woman for life. The institution of marriage is an ancient and 
 honorable one, and the marriage relation exists in all Christian 
 communities especially, and, in some form, it is almost universally 
 recognized among the heathen. In Protestant communities, mar- 
 riage is not regarded as a sacrament, nor as peculiar to the church 
 of Christ ; but it is considered in aU countries as the most sacred of 
 all contracts, and in England it is celebrated as a religious cere- 
 mony. In the United States, it is only a civil contract, and certain 
 magistrates,- equally with the ministers of religion, have a right to 
 solemnize it ; but the prevailing practice among the cultivated and 
 refined is to have it performed by a clergyman, and attended with 
 religious ceremonies. 
 
 Marriage is of a public nature, and the welfare of civil society, 
 the happiness of families, and the credit of religion, are deeply 
 interested in it. Indeed, the institution of marriage is really the 
 most important of all the domestic relations. It is emphatically 
 one of the chief foundations of social order; it involves moral 
 duties and legal obligations of a most serious concern; and the 
 ties and relations which result from it, are of the highest import- 
 ance to the parties and to society. It is regulated by law in every 
 civilized commonwealth, and all good citizens are bound by the 
 regulations which are made. In all civilized countries, especially, 
 the doctrine is conceded that men and women ought not to follow 
 their animal instincts in their social relations to one another, but 
 that they should be conjugally united by a band which nothing 
 but death can sunder. In some countries men are permitted to 
 take to themselves more than one wife ; but the practice is looked 
 npon with horror and disgust among Christian communities, Siud 
 it is nowhere tolerated in a Christian country except by the Mor- 
 mons of the United States. 
 
 Mr. Bishop, in his excellent commentaries npon the law of. 
 marriage and divorce, well says : " The institution of marriage, 
 commencing with the race, and attending man in all periods, in 
 
TBE INSTITUTION OF MARB.IAQM. 805 
 
 all countries, of his existence, has ever been considered the par- 
 ticular glory of the social system. It has shone forth in dark 
 countries, and in dark periods of the world, a bright luminary on 
 his horizon. And but for this institution, all that is valuable, all 
 that is virtuous, all that is desirable in human existence, would 
 long since have faded away in the general retrograde of the race, 
 and in the perilous darkness in which its joys and its hopes would 
 have been wrecked together. And as man has gone up in the 
 path of his improvement, and higher and purer light. has shone 
 around him, still has this institution of marriage, receiving acces- 
 sions of glory with every step of the race toward its ultimate 
 glory, remained ever the first among the institutions of human 
 society. And the idea that any government could, consistently 
 with the general weal, permit this institution to become merely 
 matter of bargain between men and women, and not regulate it 
 by its own power, is too absurd to require a word of refutation." 
 (1 Bishop on Ma/rriage and Dvuorae, § 12.) 
 
 Marriage in South Carolina is declared to be " a civil contract 
 of mutual partnership and cohabitation during life, under the pro- 
 visions of laws passed on this subject. The parties are the man, 
 the woman and the state. The state is interested, her interest 
 being that the contract shall be fulfilled beneficially to the progeny, 
 of whom the future citizens are to be composed." (2 8. 0. 8t«,t. at 
 Large, Y33.) 
 
 § 618. Marriage is considered by the law in no other light than 
 as a civil contract. This is the doctrine now universally conceded 
 both in England and America. Whatever question or controversy 
 may exist among legal writers and jurists concerning the nature 
 of the relation subsisting between husband and wife after marriage 
 — whether the rights and liabilities of the parties are then to be 
 regulated and governed by the principles applicable to aU civil 
 contracts, or the contract is to be considered as merged in the 
 higher nature of -the status created by the agreement of the parties 
 — aU the authorities concur in this, that marriage has its origin and 
 foundation in a purely civil contract. But while it is undoubtedly 
 a contract, it is a contract sanctioned by law, controlled*by con- 
 siderations of public policy vital to the order and harmony of social 
 life, and in its nature indissoluble, except by violations of duty on 
 the one part, to be taken advantage of in a special manner, pro- 
 vided by law, on the other. 
 
806 LAW OF COVERTURE. 
 
 Some writers prefer to treat mamage rather as a status than as 
 a contract ; and Judge Story seems to have sanctioned this view. 
 He says, in his work on the conflict of laws : " I have throughout 
 treated marriage as a contract in the common sense of the word, 
 because this is the light in which it is ordinarily viewed by jurists, 
 domestic as well as foreign. But it appears to me to be something 
 more than a mere contract. It is rather to be deemed an institution 
 of society, founded upon the consent and contract of the parties \ 
 and in this view it has some peculiarities in its nature, character, 
 operation, and extent of obligation, different from what belongs to 
 ordinary contracts. * * * Marriage is not treated as a mere 
 contract between the parties, subject, as to its continuance, dissolu- 
 tion, and effects, to their mere pleasure and intentions. But it is 
 treated as a civil institution, the most interesting and important in 
 its nature of any in society." {Story's Conflict of Laws, § 200.) 
 And Mr. Bishop says : " Definitions are not necessarily law ; and 
 legal writers are bound to reform definitions as lexicographers do, 
 so that they may truly describe the object intended. Thus, to say 
 that marriage is a contract, when speaking of the marital condition, 
 not of the agreement to assume it, is, as we have seen, according 
 to the current of authorities, inaccurate, since they further declare 
 that it differs in many particulars from other contracts. And, when 
 the idifferences are pointed out, we find that they have covered 
 every quality of the marriage, and left nothing of the contract 
 uncovered. All is submerged in the status. To term marriage, 
 therefore, a contract, is as great a practical inconvenience as to 
 call a certain well known engine for propelling railroad cars ' a 
 horse,' adding, 'but it differs irom other horses in several important 
 particulars,' and then to explain the particulars. More convenient 
 would it be to use at once the word locomotive." (1 Bishop on 
 Marriage amd Divorce, § 18.) He, therefore, designates the 
 relation of marriage in his work by the words " status of marriage^'' 
 to signify the same thing which is usually meant by the phrase 
 " contract of marriage." 
 
 § 619. Mr. Shelford, in his treatise on marriage and divorce, 
 says : " Marriage is considered in every country, and may be 
 defined tcr be a contract according to the form prescribed by 
 the law, by which a man and woman, capable of entering into 
 such a contract, mutually engage with each other to live their 
 whole lives together in the state of union which ought to exist 
 
TBE INSTITUTION OF MARRIAGE. 807 
 
 between a husband and his wife." {Sh6lford''s Ma/rriage and 
 Dvoorce, 1.) 
 
 Mr. Eogers, in his work on ecclesiastical law, says : " Marriage 
 is a contract having its origin in the law of nature antecedent to 
 all civil institutions, but adopted by political society, and charged 
 thereby with various civil obligations. It is founded on mutual 
 consent, which is the essence of all contracts; and is entered 
 into by two persons of different sexes, with a view to their mutual 
 comfort and support, and for the procreation of children." {Sogers^ 
 JEcclesiasUcal Law \%d ed."], 595, tit. Marriage!) 
 
 Ayliff says : " Marriage is a lawful coupling and joining together 
 of a man and woman in an individual state or society of life, during 
 the life-time of one of the parties ; and this society of life is con- 
 tracted by the consent and mutual good will of the parties toward 
 each other." {AyUff^s Parergon, juris canonici Anglicani, 359.) 
 
 Lord Eobertson, a Scotch judge, said: "Marriage is a contract 
 sui geyiei'is, and differing, in some respects, from all other contracts, 
 so that the rules of law which are applicable in expounding and 
 enforcing other contracts may not apply to this. The contract of 
 marriage is the most important of all human transactions. It is 
 the very basis of the whole fabric of civilized society. The status 
 of marriage is juris gentium, and the foundation of it, like that of 
 all other contracts, rests on the consent of parties ; but it differs 
 from other contracts in this, that the right, obligations, or duties 
 arising from it are not left entirely to be regulated by the agree- 
 ments of parties, but are, to a certain extent, matters of municipal 
 regulation over which the parties have no control by any declara- 
 tion of their will. It confers the status of legitimacy on children 
 born in wedlock, with all the consequential rights, duties and 
 privileges thence arising. It gives rise to the relations of con- 
 sanguinity and affimity. In short, it pervades the whole system of 
 civil society. Unlike other contracts, it cannot, in general, among 
 civilized nations, be dissolved by mutual consent, and it subsists in 
 full force, even although one of the parties should be fofever ren- 
 dered incapable, as in the case of incurable insanity, or the like, 
 from performing his part of the mutual contract. No wonder that 
 the rights, duties, and obligations arising from so important a 
 contract should not be left to the discretion or caprice of the con- 
 tracting parties, but should be regulated, in many important 
 particulars, by the laws of every civilized country." {Dvnts v. 
 
808 L-^W OF COVERTURE. 
 
 I^Uf, Ferg. B. 68, 385, 397.) And Lord Bannatine, another 
 Scotch judge, in the same case, said: " Though the origin of mar- 
 riage is contract, it is in a different situation from all others. It is a 
 contract coeval with and essential to the existence of society, while 
 the relations of husband and wife, parent and child, to which it 
 gives rise, are the foundation of many rights acknowledged all the 
 world over, and which, though differently modified in different 
 countries, have everywhere a legal character altogether independent 
 of the will of the parties." (J)unts, v. Lemtt, Ferg. B. 401.) 
 
 § 620. Chief Justice Kobertson, of Kentucky, observed: "Mar- 
 riage, though in one sense a contract, because, being both stipula- 
 tory and consensual, it cannot be valid without the spontaneous 
 concurrence of two competent minds, is nevertheless sui generis / 
 and, unlike ordinary or commercial contracts,' is piibUci juris, 
 bec£|,use it establishes fundamental and most important domestic 
 relations. And therefore, as every well organized society is essen- 
 tially interested in the existence and harmony and decorum of all 
 its social relations, marriage, the most elementary and useful of 
 them all, is regulated and controlled by the sovereign power of the 
 state, and cannot, like Tnere contracts, be dissolved by the mutual 
 consent only of contracting parties, but may be abrogated by the 
 sovereign will, either with or without the consent of hoth pa/rties, 
 whenever the public good, or the justice to both or either of the 
 parties, will be thereby subserved. Such a remedial and conserva- 
 tive power is inherent in every independent nation, and cannot be 
 subjected to political restraint or foreign control consistently with 
 the public welfare. And therefore, marriage, being much more 
 than a contract, and depending essentially on the sovereign will, is 
 not, as we presume?, embraced by the constitutional interdiction of 
 legislative acts impairing the obligation of contracts. The obliga- 
 tion is created by the public law, subject to the public will, and 
 not to that of the parties." {Maguire v. Maguire, 7 Dana's B. 
 181, 183.) 
 
 So, the judge who delivered the opinion of the court of Ten- 
 nessee, in a case, observed : " By the English canon and ecclesiasti- 
 cal law, this union of marriage is of a nature so widely differing 
 from ordinary contracts ; creating disabilities and conferring privi- 
 leges between husband and wife ; producing interests, attachments 
 and feelings, partly from necessity, but mainly from a principle in 
 our nature, which together form the strongest ligament in human 
 
THE INSTITUTION OF MAERIAGK 809 
 
 society, without which, perhaps, it could not exist in a civilized 
 state ; it is a connection of such a deep-toned and solemn character 
 that society has even more interest in preserving it than the 
 parties themselves. So it has been deemed in all societies, civilized 
 andjiot corrupt, in all ages." {Dickson v. Dickson, 1 Yerg. R. 
 110, 112.) So also in a case in the State of Delaware, the court 
 remarked : " The marriage contract is one of a peculiar character, 
 and subject to peculiar principles. It may be entered into by 
 persons who are capable of forming any other lawful contract ; it 
 can be violated and annulled by law, which no other contract can ; 
 it cannot be determined by the will of the parties, as any other 
 contract may be ; and its rights and obligations are derived rather 
 from the law relating to it, than from the contract itself." {Tovm- 
 send V. Grriffin, 4 Harring, B. 440, 442.) And in a late^ case in 
 the State of Rhode Island, Chief Justice Ames observed : " Ma/r 
 riage, in the sense in which it is dealt with by a decree of divorce, 
 is not a contract, but one of the domestic relations. In strictness, 
 thotigh formed by contract, it signifies the relation of husband and 
 wife, deriving both its rights and duties from a source higher than 
 any contract of which the parties are capable, and as to those, 
 uncontrollable by any contract which they can make. When 
 formed, this relation is no more a contract than a ' fatherhood ' or 
 ' sonship ' is a contract. It is no more a contract than serfdom, 
 slavery and apprenticeship are contracts ; the latter of which it 
 resembles in this, that it is formed by contract. To this relation 
 there are two parties, as to the others ; two or more interested, 
 without doubt, in the existence of the relation, and so interested 
 in its dissolution. These parties are placed by the relation in a 
 certain relative state or condition under the law, as are parents 
 and children, masters and servants ; and as every nation or state 
 has an exclusive sovereignty and jurisdiction within its own 
 territory, so it has exclusively the right to determine the domestic 
 and social condition of the persons domiciled within that territory. 
 It may, except so far as checked by constitution or treaty, create by 
 law new rights in, or impose new duties upon, the parties to these 
 relations, or lessen both rights and duties, or abrogate them, and so 
 the legal obligation of the relation which involves them, altogether. 
 This it may do, with the exception above stated, as to some 
 relations, by law, when it wills, declaring that the legal relation of 
 master and slave, for instance, shall cease to exist within its 
 102 
 
810 LAW OF COVEBTURE. 
 
 jurisdiction ; or for what cause or breaches of duty in the relation, 
 this or the legal relation of husband and wife, or of parent and 
 child, may be restricted in its rights and duties, or altogether dis- 
 solved, through the judicial intervention of the courts." (Ditson 
 V. Ditson, 4 R I. B. 8Y, 101, 102.) 
 
 But in a recent case in Pennsylvania, the statement of -an 
 auditor was sanctioned by the court, when he observed : " In this 
 commonwealth marriage, in its legal aspect, is, emphatically, a 
 civil contract, and nothing more. The precepts of religion and 
 morality may add to its solemnity, but they have nothing to do 
 with its civil obligations. Even the restrictions arising from con- 
 sanguinity, or from a prior existing engagement of the same 
 nature, or from other incapacities to contract, derive their validity 
 from the enactments which follow the dictates of religion, and hot 
 from those dictates themselves. The essence of the engagement 
 consists in a consent, freely given, by parties competent at the 
 time to contract." (Physickis estate, 4 Am. Law Reg. \N. 8I\ 418, 
 423, 432. Vide also EoAitz v. Seely, 6 Binn. B. 405.) 
 
 § 621. The Ute learned surrogate of the city of New Tork 
 said : 
 
 " Though marriage is a civil contract, it differs from other con- 
 tracts, in being also a civil institution. It lies at the very basis of 
 society, and the state is interested in its regulation. In respect to 
 rights, duties and obligations, the will of the parties is not supreme, 
 but is subject to those rules of social and moral order which the 
 law has seen fit to impose. Thus it still continues to subsist, 
 though one of the parties has become incapable of performing his 
 part of the compact. It cannot be dissolved by mutual consent. 
 In cases of other contracts these rules would be esteemed grossly 
 unjust; in respect to marriage, they are recommended by the 
 highest considerations of morals and humanity. 
 
 " It is evident, also, that the relations and conduct of husband 
 and wife are of such concern to the state that the law of the place 
 where they reside cannot be made entirely subservient to the law 
 of the place where the contract was made. If marriage be such a 
 contract as to embody in it all the laws respecting husband and 
 wife existing at the time of its creation, so that these laws are part 
 of the contract, just as much as if they were expressed in a written 
 agreement, then it is obvious that parties domiciled and married 
 abroad may import into any country to which they may have 
 
THE mSTITUTION OF MAMRIAOE. 811 
 
 changed their domicile laws utterly repugnant to its social policy 
 and institutions." {Kelly t. MoCartny, 3 Brad. E. 1, 9, 10.) 
 
 The marriage relation is sometimes confounded with the con- 
 tract under which the relation is entered into, and, perhaps, none 
 of the' definitions given are entirely free from metaphysical object- 
 ions. More accurately speaking, perhaps, marriage may be defined 
 to be a civil status existing between one man and one woman, 
 legally united for life, for those civil and social purposes which are 
 based upon the distinctions of sex. The parties enter into the con- 
 tract of marriage, but when the contract is consummated by the 
 conjugal union, all the rights, obligations and duties arising from 
 the institution are regulated by law. Marriage is not a contract 
 which receives its entire character, force and construction from the 
 laws operating upon the parties at the time of its celebration. It 
 is rather a continuing contract, and one whose duties and obliga- 
 tions, as well as the subsisting rights resulting from it, are as much 
 ambulatory, almost, as a will. It is not only executory, but con- 
 tinuing, and subject to modification, from time to time, by the 
 general legislation of the states, as to its rights a,nd duties, and, 
 therefore, not within the constitutional provision against laws 
 impairing the obligation of contracts. (3 American Law Meg. 
 [i\^. S.'\ 196, referring to Dart/mouth College v. Woodnca/rd, 4 
 Wheat. B. 528.) 
 
 But the statutes of the state sometimes declare the rule upon the 
 subject. Thus, by the laws of New York, it is enacted that 
 " marriage, so far as its validity is concerned, shall continue in the 
 state a civil contract, to which the consent of the parties, capable 
 in law of contracting, shall be essential." (2 li S. pa/rt 2, ch. 8, 
 tit. 1, § 1. 2 Stat, at La/rge, 144. Vide also Clayton v. Wa/rdell, 4 
 iT. Y. E. 230.) 
 
 The marriage relation, when entered into, may be more accu- 
 rately defined by the term '■'■ slaims of marriage'''' than by the 
 phrase " contract of marriage ; " nevertheless, this status is con- 
 stituted by a contract, and the law allows the parties to regulate it 
 in many important respects by an antenuptial agreement. So, 
 after all, the institution of marriage may be regarded, as the law 
 regards it, as exclusively a civil contract. The holiness of the 
 matrimonial state is left entirely to the ecclesiastical law; the 
 temporal courts never having jurisdiction to consider unlawful 
 marriage as a sin, but merely as a civil inconvenience. 
 
812 IiAW OF COVMRTUBE. 
 
 § 622. "What 18 necessary to constitute a complete ' and valid 
 marriage, is a question wHclifor a long time remained in a state 
 of singular uncertainty, if it can be regarded as definitely settled at 
 the present day. The question, whether the ceremonies and forms, 
 or any of them, which are indicated by law or are customarily 
 used for the solemnization of a marriage, are indispensable to the 
 validity of the marriage, or not, has received much discussion in 
 the courts, both in England and America, and the decisions have 
 been far from unanimous on the subject. Sometimes it has been 
 held that the marriage is not full and complete without both the 
 civil and the religious ceremony, and at others that the mere con- 
 sent of the parties is sufficient; although it has been doubted 
 whether a single case can be found, in England or in this country, 
 where the widow has been allowed her dower, or a child his inherit- 
 ance, when the validity of the marriage rested on nothing but the 
 consent of the parties. The matter is of sufficient interest to war- 
 rent a moment's examination to ascertain which way the authorities 
 bear, if they, do not substantially settle the question. 
 
 It is generally understood that,, by the ancient common law of 
 England, marriage being regarded as a sacrament, must, to be 
 valid, have been celebrated in facie ecclesice.- But since the 
 Reformation, it has been regarded as a civil contract. That mar- 
 riage might be validly contracted by mutual promises alone, or 
 what were called sponsalia de prmsenti, without the presence or 
 benediction of a priest, was an established principle of civil and 
 canon law antecedent to the council of Trent. {Dalrym/ple v. 
 X^ajrynvple, 2 Haggard'' s Consistory B. 54.) Whether such a 
 marriage was isufficient by the common law of England previous 
 to the marriage a,ct, has been disputed of late years in that king- 
 dom. {The Queen v. Millis, 10 Glarh & Fm. B. 534.) 
 
 § 623. Previous to the marriage act, so called, of 26 George II, 
 the legal validity of carriages depended upon the doctrines of the 
 ecclesiastical courts. Some former statutes had inflicted penalties 
 upon parties concerned in the celebration of clandestine marriages, 
 but without venturing to control the rules which the church had 
 established with reference to their validity. An opinion was com- 
 monly entertained that matrimony ordained, and regulated by the 
 divine law, was not to be treated as a human institution, and was 
 not a proper subject for the interference of the civil legislature. 
 This opinion formed one of the principal grounds upon which the 
 
TEE INSTITUTION OF MAEBIAOM. 813 
 
 new principle of nullity of marriage, introduced by the marriage 
 act, was opposed. 
 
 That statute also effected another important alteration in the 
 law of marriage by the clause enacting that no suit or proceeding 
 should be had in any ecclesiastical court, to compel a celebration 
 of marriage m facie ecclesicB, by reason of any contract of matri- 
 mony, whether jper verba de proBsenti or per verba de future. 
 Before the passing of this statute, the spiritual courts possessed the 
 power of securing the performance of a contract of matrimony ; 
 and, as such was thus capable of being enforced, it had for some 
 purposes the effect of marriage. 
 
 In later times the attention of the courts has seldom been called 
 to the distinctions which previously prevailed upon this subject, 
 and expressions have sometimes been used, which seem to imply 
 an opinion that a matrimonial contract, unattended with any 
 religious ceremony, was before the alteration of the law equiv- 
 alent to a marriage legally solemnized. Matrimonial contracts 
 or spousals were divided into contracts per verba de fuiuro^ zXi&. 
 contracts per verba de praesenti ; and contracts of the former 
 description, when followed by carnal intercourse, were commonly 
 considered equivalent in legal effect to contracts per verba d6 
 prmsenti. Contracts per verba de futuro, without consummation, 
 might be released by mutual consent ; and the spiritual courts had 
 not the power of effectually enforping them. But a present con- 
 tract or a future contract cvmi, copula, could be carried into effect 
 by those courts. It would appear, however, that the doctrine was 
 settled from a very early period, that, until the contract of marriage 
 was sanctioned by a religious ceremony performed by a person in 
 holy orders, it was incomplete ; that it did not constitute lawful 
 matrimony, and that it did not confer the civil rights incident to 
 that state. 
 
 § 624. At one period, it was held that a scrupulous observance 
 of the prescribed forms in the solemnization of matrimony was essen- 
 tial to the validity of the marriage. In one case, the marriage was 
 by a priest, but a ring was not used according. to the book of com- 
 mon prayer. It was doubted whether this informality might not 
 vitiate the marriage, and a case was ordered to be made upon the 
 point; but the chief justice, Pemberton, inclined to think it a good 
 marriage, there being words of contract de prcesenti repeated after 
 a parson in orders. ( Weld v. Chamberlwyne, 2 Slww. R. 300.) 
 
814 LAW OF OOVERTURE. 
 
 In another case, on a motion in arrest of judgment in an action 
 by a -woman . for a breach of promise of marriage, Yaughan's 
 opinion was against the plaintiff; and one of his reasons was, that 
 a priest was requisite to the marriage, and that she ought, there- 
 fore, to have averred in the declaration, " quod dbtulit se, in the 
 presence of a parson." The other judges differed from Vaughan, 
 not as to the necessity of the intervention of a priest, but as to the 
 necessity of introducing such an allegation into the declaration, 
 {Holder v. Dichmsoh, 1 Freem. B. 95.) 
 
 The judgment of Sir E. gimpson, in a case relative to the valid- 
 ity of a marriage celebrated abroad, which occurred shortly before 
 the marriage act, illustrates the doctrine at that time adopted by 
 the ecclesiastical courts. The marriage had been solemnized by 
 a Roman Catholic priest according to the Eoman ritual. The 
 learned judge doubted whether even this species of marriage would 
 be deemed perfect if it had taken place in England. He said that, 
 " as a priest popishly ordained is allowed to be a legal presbyter, it 
 is generally said that a marriage by a popish priest is good ; and 
 it is true, where it is celebrated after the English ritual, for he is 
 allowed to be a priest ; but upon what foundation a marriage after 
 the popish ritual can be deemed a legal marriage is hard to say. 
 Indeed, the canon law received here calls an absolute contract 
 ^sum matrimormim, and will enforce solemnization according to 
 English rites ; and that contract or ipsum matrimonium does not 
 convey a legal right to restitution of conjugal rights, though an 
 English priest had intervened, if it were otherwise than according 
 to the English ritual. Upon what reason or foundation then should 
 a contract of marriage, entered into by the intervention of a popish 
 priest, not in the form prescribed by law, be deemed a legal mar- 
 riage in this country, more than any other contract that is consid- 
 ered by the canon law as ipsum matrimonium f * * * j 
 apprehend, unless persons in England are married according to the 
 rites of the Church of England, they are not entitled to the priv- 
 ileges attending legal marriages." {Scrvmshire v. Scrim^hire, 2 
 Hagg. B. 395.) But, in a case which occurred before Lord Stow- 
 ell in the year 1820, his lordship observed that it was a generally 
 accredited opinion that, if a marriage was had by the ministration 
 of a parson in the church who was ostensibly in holy orders, and 
 was not known by the parties to be otherwise, such man-iage should 
 be supported ; parties who come to be married were not expected 
 
TBE INSTITUTION OF MARSIAOE. 815 
 
 to ask for a sight of the minister's letters of orders ; and, if they 
 saw them, they could not be expected to inquire into their authen- 
 ticity. {HawTce v. Corri, 2 Sagg. Ji. 280.) 
 
 § 625. The statute formerly in force in England declared that if 
 any person should knowingly and wiUfuUy marry in any other placa 
 than a church, or such public chapel wherein bans may be law- 
 fully published, except by special license, or should knowingly and 
 willfully intermarry without due publication of bans, or license 
 from a person having authority to grant the same, or should know- 
 ingly and willfully consent to or acquiesce in the solemnization of 
 such marriage by any person not being in holy orders, the mar- 
 riage of such persons should be null and void to all intents and 
 purposes. (4 Geo. IV, oh. Y6.) But by a later statute now in force, 
 the intervention of a person in orders is not necessary, and valid 
 marriages may be solemnized in a building duly registered, instead 
 of a church, and with the certificate required by the act, instead of 
 bans or license. (6 and 1 William IV, oh. 85.) However, if 
 any parties shall knowingly and willfully marry, under the pro- 
 visions of this latter act, in any other place than the church, chapel, 
 registered building, or office, specified in the notice to be given 
 under the act, or without due notice, or certificate, or license 
 when necessary, or in the absence of a registrar or superintendent 
 registrar, when required, the marriage is declared null and void. 
 (6 and 1 William IV, eh. 85, § 39.) 
 
 In the great case recently decided in the house of lords on an 
 appeal from Ireland, after a profound investigation of the question 
 of marriage at the common law, the unanimous opinion of the 
 twelve judges of England, first given, that a marriage of members 
 of the Church of England, not solemnized according to the rites of 
 the Church of England, was not a legal, valid marriage at common 
 law to give the wife a right qf dower, or for any purpose except to 
 charge the parties civilly, was sustained by the most profound 
 learning . and discrimination in the opinions subsequently pro-' 
 nounced on the same side of the question by Lord Ch. Baron 
 Abinger, Lord Chancellor Lyndhurst and Lord Cottenham. 
 
 In the very clear and logical opinion of Lord Cottenham, the 
 following propositions were distinctly announced and proved: 
 First, that a contract per verba de prcesenti did not give to the 
 woman the right of a wife in respect to dower ; second, that such 
 a contract did not give to the man the right of a husband in the 
 
816 LAW OF COVUBTUBM. 
 
 property of tlie ■woman ; third, that such a contract between a man 
 and a woman did not confer upon their issue the right of legiti- 
 macy ; fourth, that a contract of marriage per verba de prcBsenti 
 did not impose upon a woman the incapacities of coTerture; fifth, 
 'that a contract of marriage ^er verba de prcesenti did not make 
 the marriage of one of the parties, while the other was living, with 
 a third person void. Until a sentence of nullity was pronounced 
 by the spiritual court, on the canonical ground oi pre contract, 
 said second marriage, in the face of the church, or by a person in 
 holy orders, privately celebrated, was legal and valid to all intents 
 and purposes whatever. 
 
 This view was concurred in by Lord Chancellor Lyndhurst and 
 Lord Abinger ; but, on the contrary. Lord Brougham, Lord Den- 
 man, Ch. J., and Lord Campbell, declared themselves in favor 
 of the marriage, and each gave their oj)inions at great length. 
 {The Queen v. MilUs, 10 Cla/rh (& Fmelly's B. 875.) So the 
 question was not definitely settled whether a marriage per verba 
 de proBsenU — " by words of the present time," in the presence of 
 witnesses only, is a valid marriage under the English laws ; ■ the 
 better opinion, however, is adverse to such a marriage. ( Vide 
 Catherwood v. Caslon, 13 Mees. <& Wels. B. 261.) 
 
 In a case decided in the high court of chancery, in 1840, it was 
 held that where a marriage between a British subject domiciled in 
 England, and a female ward of court, was celebrated in the pres- 
 ence of the British consul, and in the English church at Antwerp, 
 by a clergyman of the Church of England, who had been appointed 
 chaplain to the church, and was paid by the British government, 
 it was invalid, because certain ceremonies prescribed by the law 
 of Belgium had not been observed. {Kent v. Burgess, 11 8im. 
 B. 361. 8. C. 34 Eng. Oh. B. 361.) 
 
 § 626. On the continent of Europe, clandestine marriages, and 
 marriages contracted by mutual promises alone, or what were 
 called sponsaUa de prmsenti, without the presence or benediction 
 of a priest, although they subjected the parties to the censures of 
 the church, were not only held valid by the civil and the canon 
 law, but were pronounced by the council of Trent to be " vera 
 matfimonia." But a difierent rule was established for the future 
 by that council, in their decree of the 11th of November, 1563. 
 This decree makes null and void every marriage not celebrated 
 before the parish or other priest, or by license of the ordinary, and 
 
TBE INSTITUTION OF MARRIAGE. 817 
 
 before two or three witnesses. But it was not within the power of 
 an ecclesiastical decree, propria mgore, to aflfect the status or civil 
 relations of persons. This could only be effected by the supreme 
 civil power. The church might punish by her censures those who 
 disregarded her ordinances, but until the decree of council was 
 adopted and confirmed by the civil power, the offspring of a clan- 
 destine marriage, which was ecclesiastically void, would be held as 
 canonically legitimate. In France the decree of the council was 
 not promulgated, but a more stringent system of law was estab- 
 lished by the ordinance de Blois, and others which followed it. In 
 Spain it was received and promulgated by Philip the Second in his 
 European dominions. This is the understanding of Mr. Justice 
 Grier, of the supreme court of the United States, as collected from 
 the British Consistory Reports, where all the learning upon the sub- 
 ject is collected. ( Yide Hallett v. Collins, 10 JSowa/rd's U. S. M. 
 174, 181. Dalrymple v. Dalrymple, 2 Hag. B. 64.) 
 
 In order to constitute a valid marriage in the Spanish colonies, 
 all that was necessary was that there should be consent joined with 
 the will to marry. The decree of the council of Trent requiring 
 that marriage should be celebrated before the parish or other priest^ 
 or license of the ordinary, and before two or three witnesses, was 
 never extended by the king of Spain to the colonies ; and there- 
 fore the rule established by the parties above mentioned was per- 
 mitted to remain unchanged. {Hallett v. Collins, supra.) 
 
 § 627. Perhaps the question whether a marriage by consent or 
 contract merely is valid in the United States, may be considered 
 as yet unsettled. Chancellor Kent laid down the rule, that if the 
 contract of marriage be made per verba prcesenti, and remains 
 without cohabitation, or if made per verba de fwbwro, and be fol- 
 lowed by consummation, it amounts to a valid marriage in the 
 absence of all civil regulations to the contrary, and that the mar- 
 riage in such case is equally binding as if made i/n, facie ecclesicB / 
 in a word, that there is no recognition of any ecclesiastical authority 
 in forming the connection, and that marriage here is considered 
 entirely in the light of a civil contract. (2 KenHs Com. 87.) And 
 Chancellor Walworth, while he admitted that, by the ancient com- 
 mon law of England, a marriage was invalid unless it was cele- 
 brated im, facie ecolesiw, thought the law on the subject was unques- 
 tionably changed at the Reformation, if not before; and unquali- 
 fiedly asserted that " it is now a settled rule of the common law 
 103 
 
818 LAW OF COVERTURE, 
 
 which was brought into this state by. its first English settlers, and 
 which was probably the same among the ancient protestant Dutch 
 inhabitants, that any mutual agreement between the parties to be 
 husband and wife in presenti, especially when it is followed by 
 cohabitation, constitutes a valid and binding marriage ; if there is 
 no legal disability on the part of either to contract matrimony." 
 {Rose V. Clarlc, 8 Pcdge's Ch. B. 574, 580.) Chancellor Kent 
 said: "The only doubt entertained by the common law was, 
 whether cohabitation was also necessary to give validity to the con- 
 tract. It is not necessary that a clergyman should be present to 
 give validity to the marriage, though it is doubtless a very becom- 
 ing practice, and suitable to the solemnity of the occasion. The 
 consent of the parties may be declared before a magistrate, or 
 simply before witnesses, or subsequently confessed or acknowl- 
 edged." (2 Kent^s Com. 87.) 
 
 The supreme court of the State of New York declared that 
 the maxim of the civil law, nv/ptias non concuMtas sed consensus 
 facit {Dig. Laws 50, tit. 17, § 30), or one of the same import, has 
 ever been regarded in courts of common law as a good definition 
 of marriage ; excepting to the expression in Wood's Institutes of 
 the Laws of England, that " marriage or matrimony is an espousal 
 de prcBsenti, and a conjunction of man and woman in a constant 
 society." {Jackson v. Win-fie, 7 Wend. B. 47, 50.) 
 
 But this question came up before the supreme coui't of the 
 United States in 1850, on error from the circuit court in South 
 Carolina, and the judges were equally divided upon it, and gave no 
 opinion.. Chief Justice Taney observed: "The question has, of 
 course, no concern with, the nature and character of the union 
 of man and wife, in a religious point of view. But regarding it (as 
 a court of justice must do) merely as a civil contract, and deciding 
 in what form it ought to have been celebrated in order to give the 
 parties the legal rights of property which belong to the husband 
 or the wife, and to render the issue legitimate, the circuit court 
 held, and so instructed the jury, that, if they believed that, before 
 any sexual connection between the parties, they, in the presence 
 of the family and friends, agreed to marry, and did afterward 
 live together as man and wife, the tie was indissoluble even by 
 mutual consent, and that if the contract be made per verba de 
 prcBsenti and remains without cohabitation, or if made per verba 
 defuVu/ro and be followed by consummation, it amounts to a valid 
 
i 
 
 TOE INSTITUTION OF MABEIACtE. 819 
 
 marriage, and whicli the parties (being competent as to age and 
 consent) cannot dissolve ; and that it is equally binding as if made 
 in facie ecclesioB. Upon the point thus decided, this court is 
 equally divided ; and no opinion can therefore be given." {JeweWs 
 Lessee v. Jewell, 1 How. B. 219, 233, 234.) The late Surrogate 
 Bradford laid down the. rule, that "marriage in its origin is a 
 contract of natural law, and in a civil society is a civic contract, 
 requiring no form or ceremony unless imposed by the local law, 
 and hence when the law directs the ceremony to be conducted in a 
 prescribed manner, a failure to comply with such forms does not 
 affect the validity of the contract unless such effect be expressly 
 directed by statute." {Ferrie v. The PuUio Administrator, 3 
 Brad. R. 151, 169, 170.) 
 
 The late Chief Justice Parsons, in a case before the supreme 
 judicial court of Massachusetts, observed : " Marriage being essen- 
 tial to the peace and harmony and to the virtues and improvements 
 of civil society, it has been, in all well regulated governments, 
 among the first attentions of the civil magistrate to regulate mar- 
 riages, by defining the characters and relations of parties who may 
 marry, so as to prevent a conflict of duties, and to preserve the 
 purity of families ; by describing the solemnities by which. the con- 
 tract shall be executed, so as to guard against fraud, surprise and 
 seduction ; by annexing civil rights to the parties and their issue, 
 to encourage marriage, and to discoimtenance wanton and lascivious 
 cohabitation, which, if not checked, is followed by prostration of 
 morals and a dissolution of manners ; and by declaring the causes 
 and the judicature for rescinding the contract, when the conduct 
 of either party and the interests of the state authorize a dissolution. 
 A marriage contracted by parties authorized by law to contract, 
 and solemnized in the manner prescribed by law, is a lawful mar- 
 riage; and to no other marriages are incident the rights and 
 privileges secured to husband and wife and to the issue of the 
 marriage." {Milford v. Worcester, 7 Mass. R. 48, 52, 53.) 
 
 § 628. An article has been lately prepared in the office of the attor- 
 ney-general of the United States, for the use of one of the foreign 
 ministers, and published in the American Law Register, discussing 
 at great length the laws regulating the forms of marriage in the 
 United States ; and it is thought that no better service can be ren- 
 dered the profession than by giving the substance of some of the 
 statements contained in this article. 
 
820 LAW OF COVERTURE. 
 
 It is affirmed that marriage in the United States is not a federal 
 question, but one over which the states and territories have control, 
 under civil regulations immemorially understood, or through special 
 legislation. The solemnization of this civil contract was a cardinal 
 idea with primitive colonists along the entire coast-country of 
 America, and, according to the respective creeds of each body of 
 settlers, regular ministers and priests were chosen to remain perma- 
 nently in the exercise of their holy office. The earliest traditions 
 and records alike prove that such ministers and priests claimed the 
 marriage ceremony as a peculiar right. An act of parliament, 
 passed in the time of the commonwealth, on the 16th of August, 
 1653, authorized justices of the peace to marry. And this addi- 
 tional form, adopted in the English "West India islands and the 
 colonies, under the common law, as well calculated to enforce 
 decorum and order, has continued from the first settlement to the 
 present time in many of the states and territories. "With a fixed 
 religious idea, making some church ceremony preferable, public 
 sentiment was modified under the influence of this act; but thei-e 
 has been no period of time in this country when loose admissions 
 of parties, excluding all specialform, could have reduced the rule 
 of marriage to the low standard of the Scotch law. 
 
 It has not been long since the supreme court of the United 
 States was equally divided cm a question of marriage law, arising 
 tinder the laws of South Carolina and Georgia, and no opinion 
 could consequently be given in regard to the necessity of a cere- 
 monial as essential to a valid marriage. Bishop, a recent text 
 wi'iter on marriage law, has misstated the law of Maryland, though 
 his view had the advantage of a very recent dictum of Mr. Justice 
 Giles, in the United States district court of that state. It had 
 been previously maintained in Maryland, by Chancellor Bland, 
 that no marriage could be legal there without the intervention of 
 a religioiis form, or the blessing of some clergyman. The Mary- 
 land case is about to be brought before the supreme court of the 
 United States on appeal, and this high tribunal may thus decide 
 what constitutes marriage. 
 
 There is no state or territory in the United States without some 
 form of marriage legislation, either statutory or under established 
 usage; and it has been shown that casual assemblages are far 
 removed from the religious associations incorporated by law. The 
 churches into which the Christian world had been subdivided at the 
 
THE INSTITUTION OF MABSIAQE. 821 
 
 period of the settlement had full rights according to their respect- 
 ive creeds, and nothing better attests the reverence for this sacred 
 obligation, under the marriage contract, than the unequivocal 
 sentiment 6f disgust pervading "all sorts of people everywhere at 
 the attempted introduction of polygamy into Utah, a remote 
 wilderness, to which the Mormons had been forced solely on 
 account of this obnoxious doctrine, in defiance of morals,- and 
 against common law. 
 
 There has been a growing sentiment that a mere agreement 
 between parties, properly witnessed, would make a valid marriage. 
 It is a vexed question in many states of the union, needing further 
 adjudication ; and yet marriage in the colonies of America was 
 always celebrated by a clergyman, or before a magistrate. ' This 
 question, settled in England, has been decided one way for Scot- 
 land, and just contrariwise for Ireland. How far the intervention 
 of some special form for solemnizing it is essential remains an 
 open question in Maine. In South Carolina the supreme court has 
 intimated the opinion that the statutory forms must be strictly 
 followed. Marriage in Maryland is regulated by the act of the 
 general assembly of 1777, recently made an article of the new 
 Maryland Code. In this state some form, Christian or Jewish, or 
 the blessing of some accredited minister, is absolutely required. 
 What constitutes marriage, in itself, is altogether different from the 
 mere proof and evidence of a marriage. It may be inferred from 
 various circumstances, without weakening the argument in favor 
 of needful legal forms in the face of some church, or before some 
 judicial tribunal in the United States. In the states and territorial 
 gOTernments, the religious form of marriage is the general rule, 
 being imperative in some of the states ; and, save the State of New 
 York, there is no state or tenitory in which some special form has 
 not been prescribed. 
 
 In England, and in every state of the United States, the greatest 
 indulgence has been conceded to the Friends, called Quakers. 
 Their mode maintains, in its integrity, the order of marriage, and 
 secures its due authentication. Clandestineness is altogether ex- 
 cluded. The marriage must be in the face of a congregation, duly 
 assembled, and the mutual promise of the man and 'syoman is 
 attested by those present. Marriage in the Eoman Catholic 
 Church, since the twenty-fourth session of the council of Trent, 
 has been regarded as a sacrament, and the Friends, called Quakers, 
 
822 LAW OF COVERTURE, 
 
 as if in emulation, while denying the eflScacy of all forms, have 
 been at special pains to hedge the marriage ceremony in the strict- 
 est manner. Their example has not been withont its salutary 
 effect, in this behalf, with other dengminations of Christians. 
 Marriage is not a civil contract disjoined at the option of parties 
 from all religious forms. (3 Am. Law Reg. \N. -SI] 129-144.) 
 
 § 629. The legislation, as well as the judicial decisions, of the 
 different states upon the subject of marriage, present many of 
 the most interesting and difficult questions in the law, as that 
 vital domestic relation may be said to lay at the very foundation 
 of civil society. Nothing which touches either its formation or 
 dissolution can be unimportant in any well governed common- 
 wealth, and, therefore, the question has heen much and learnedly 
 discussed. The rule laid kown in New York, and especially the 
 position assumed by Chancellor Kent, that " the consent of the 
 parties may be declared before a magistrate, or sim,ply hefore wit- 
 nesses, or subsequently confessed or acknowledged, or the marriage 
 may even be inferred from continual cohabitation and reputation 
 as husband and wife, except in civil actions for adultery, or in 
 public prosecutions for bigamy or adultery, when actual proof of 
 the marriage is required," has been the subject of considerable 
 criticisin and learned examination. Mr. Lockwood, in one of his 
 able and copious notes to the text of Bright's treatise on the law of 
 husband and wife, examines the position of Chancellor- Kent, and 
 says : " From that part of the foregoing extract in italics we take 
 leave to dissent, without qualification or reason, so far as the law 
 of our state is concerned. What is meant by ' actual proof of the 
 marriage,' in the closing line, is not very clearly expressed. It 
 probably means ' proof of an actual marriage,' as that is what the 
 law requires in the cases mentioned in the text. In support of 
 this doctrine that such a marriage before witnesses in verba deprcB' 
 senti, or a confession or acknowledgment, would ipso facto make a 
 legal, valid marriage, the chancellor cites several English cases, 
 worthy of being examined, as also a multitude of Scotch cases, 
 which we do most heartily abhor and repudiate. The cases cited 
 from Dow's Parliamentary Cases are Scotch appeals to the house 
 of lords, and only decide what is the law of marriage in Scotland. 
 Heaven forbid that we should resort to that qfficini nuptiarum 
 raptorum to ascertain the law of marriage in New York ! But 
 Bome of the English cases cited are full of illustrations of the very 
 
TBE INSTITUTION- OF MASRIAGE. 823 
 
 opposite doctrine to that which the chancellor has laid down of a 
 marriage by calling in a witness to the sponsalia, or a subsequent 
 confession or acknowledgment." And after examining critically, 
 and at considerable length, a large number of the English and some 
 of the American cases involving the question, and referring briefly 
 to the authorities as to the validity of marriages contracted with- 
 out the legal prerequisites in those states of the Union where 
 clergymen, judges and justices of the peace have the power of 
 marrying by statute, and finding those decisions somewhat contra- 
 dictory, Mr. Lockwood concludes : " The weight of authority seems 
 to preponderate in favor of such validity, if the number of cases be 
 the test. But whether they are sufficient to turn the scale, if 
 strict legal principles be made the touchstone, will probably remain 
 a vexed question, in many states of the Union, until further dis- 
 cussions and adjudications have taken place upon the subject." 
 (1 BrigMs Sus. and Wife, 10, note 1.) This note of Mr. Lock- 
 wood's was written in 1850, since which time several new authori- 
 ties have appeared upon the subj ect, and yet the question is as 
 much unsettled now, perhaps, as it was then. 
 
 § 630. In the year 1851 a very important case came before the 
 late lamented Surrogate Bradford, of the city of New York, involv- 
 ing the validity of a marriage contract, and he gave the subject a 
 very careful, critical and elaborate examination. Among other 
 things, he observed : " Whether, previous to the English marriage 
 act of 1754, a contract of vnaximge per verba deprcesenti constituted 
 a legal marriage at common law, or whether a religious ceremony 
 or public solemnization was essential to its validity, is a question 
 of great interest. Mr. Eoper, in the addenda to his treatise on 
 husband and wife, discussed the point very elal^orately, and arrived 
 at the conclusion that, ' according to the law administered in Eng- 
 land before the marriage act, a matrimonial contract, de prcesenU, 
 was essentially distinct from a marriage solemnized by a person in 
 holy orders ; that it did not confer on the woman the right to 
 dower, or the man the right to the woman's property, or on the 
 issue the rights of legitimacy ; and that it did not render a subse- 
 quent marriage with a third person ipso faotoYoid at law, though 
 it formed a ground for a sentence annulling it.' {Roper on Bus. 
 and Wife, p. 474.) In Dumaresly v. FisUy (3 MarshalVs R 368), 
 the same view was taken of the effect of a mere contract by present 
 words, in the able opinion of Justice Mills, who contended that 
 
824 LAW OF COVERTURE. 
 
 such a marriage was not sufficient to confer upon the patties the 
 usual rights of property. The majority of the court, however, 
 ruled the other way. * * * This subject came before the 
 supreme court of this state at an early period. * « * But 
 there is not a solitary case in our books where the marriage was 
 held to be valid unless there was either cohabitation or solemniza- 
 tion before a magistrate or minister. I have not met with a 
 decision establishing a marriage or proof of a private contract, 
 unconnected with either previous or subsequent cohabitation. It 
 is not to be denied, however, that the courts, in pronouncing judg- 
 ment, have incidentally recognized the doctrine that no formal 
 solemnization of Inarriage is requisite by the common law; that a 
 marriage per verba^ de prmsenti was as valid as if made in facie 
 eoolesice, and that a full, free and mutual consent between parties 
 capable of contracting is sufficient to constitute marriage, though 
 not followed by cohabitation. These opinions were based upon 
 the supposed rule of the common law, in this respect conceived to 
 be coincident with the canon law that, as stated by Poynter, ' a 
 contract per veria de prcesenH, that is to say, between parties 
 entering into a present agreement to become husband and wife, or 
 a promise^e?" verba defuturo, which was an agreement to become 
 husband and wife at some future time, if the promise were followed 
 by consummation, constituted mairiage without the intervention 
 of a priest, for the contract jpe?" verba de prcesetiti was held to be a 
 marriage complete in substance, but deiicient in ceremony ; and 
 though the promise^e;" verba defuturo, of itself, was incomplete 
 in both pointSj yet the cohabitation of the parties, after exchanging 
 the mutual promise) implied such a present consent at the time of 
 the sexual intercourse as to complete the marriage in substance, 
 and give it equal Validity with the contract deprmsenti.'' {Poytiter 
 on Marriage and Divorce^ p. 15.) If this proposition be true it 
 may well be the subject of anxiety and apprehension that a con- 
 tract of such infinite consequence to the order and well-being of 
 society, and the security of the rights of property, has been left, in 
 regard to the evidences of its existence, in so loose' and uncertain 
 condition. The policy ought seriously to be considered of per- 
 mitting the formation of an indissoluble contract of the most 
 sacred character, the certainty of which lies at the very founda- 
 tions of social peace and virtue, withoiit requiring such a formal 
 solemnization as may secure the unequivocal demonstration of the 
 
TKE INSTITUTION OF MABBIA&E. 825 
 
 marriage. The statutes of frauds and of will^ regulate contracts 
 and transactions of much inferior moment by requiring certain 
 acts to be performed or signified in a certain mode, and established 
 by certain evidences ; and yet the matrimonial contract is left, as 
 regards the proof of its formation or existence, in this most dan- 
 gerous condition." {Jagues v. The Puhlio Administrator, 1 Brad. 
 E. 499, 506-509.) 
 
 § 631. Mr. Bishop says : " There was a time when the Anglo- 
 Saxon race, though rude and uncultivated in modern. chicanery, 
 never inflicted the disgrace of concubinage on a woman who lived 
 with one man, and one man only, as his wife, and bore him 
 children, unless the man was of too near affinity or consanguinity 
 to her, or unless he had another wife to whom he was earlier mar- 
 ried. But in these days of modem refinement, many an Anglo- 
 Saxon woman learns, or her offspring after she is dead learns, that 
 some slip in the form of marriage has made her a sort of select 
 strumpet, and has made her children bastards. Men who like to 
 deceive honest women, and men who value riches in a wife, or a 
 settlement, more than they value true marriage, admire this ; and 
 they consider the Scotch people, who do not like it, and the people 
 of some of our states, who also do not like it, to be, by reason of 
 their want of love for the refinement, almost barbarians. May 
 barbarism, if this is such, long prevail in the United States." (1 
 Bishop on Marriage and Divorce, § 20.) 
 
 But the principles of the common law respecting marriage are 
 few and simple. It requires no ceremony, no solemnization by 
 minister, priest, or magistrate. A marriage is complete where 
 there is a full, free and mutual consent by the parties capable of 
 contracting, even when not followed by cohabitation. Such was 
 the simplicity of the law throughout Christendom on the subject 
 of marriage, that before the time of Pope Innocent III, who 
 died in 1216, there never had been' any solemnization of mar- 
 riage ; but the man went to the house inhabited by the woman, 
 and led her away to his own house. This was the only cere- 
 mony then used. At least this is the statement of Justice Gierke 
 of the New York supreme court, made in a case decided in 
 1857, and there is no doubt but liistory, and the principles 
 of the New Tork decisions, justify the position. {Oanjolle v. 
 Ferrie, 26 Barlow's B. 177, 184, 185. Same Case, 23 iT, Y. 
 B. 90.) 
 
 104 
 
826 LAW OF COVERTURE. 
 
 It may be stated, that by a recent act of the national legislature, 
 it is enacted that " all marriages in the presence of any consular 
 officer in a foreign country, between persons who would be 
 authorized to marry if residing in the District of Columbia, shall 
 have the same force and effect, and shall be valid to all intents and 
 purposes as if the said marriage had been solemnized within the 
 United States." {Laws of Congress of 1860, ch. 179, § 31.) 
 
 § 632. Among the savage tribes of North American Indians, mar- 
 riage is merely a natural contract, and neither law, custom nor 
 religion has affixed any conditions, limitations or forms other than 
 those which nature herself has prescribed. Permanency is not to 
 be regarded as an essential element of marriage by the law of 
 nature ; otherwise all such connections as have taken place among 
 the various tribes of the North American Indians, either between 
 persons of pure Indian blood, or between half breeds, or between 
 the white and Indian races, must be regarded as illicit and the 
 offspring illegitimate ; for it is well established that in most of the 
 tribes, perhaps in all, the understanding of the parties is that 
 the husband may dissolve the contract at his pleasure. The power 
 of divorce in one or both of the parties to a contract of marriage 
 at his or her pleasure, is not inconsistent with the law of nature. 
 But a mere casual commerce between the sexes does not constitute 
 a marriage by the law of nature ; but when there is a cohabitation 
 by consent, for an indefinite period of time for the procreation and 
 bringing up of children, that, in a state of nature, would be a 
 marriage. {Johnson v. Johnson, 30 Mo. R. 72.) 
 
 CHAPTER XXXIX. 
 
 THE PARTIES TO A MAEEIAGE — PAETIES MUST BE ABLE TO CONTEACT 
 
 mPEDIMENTS TO MAEEIAGE — WANT OF AGE— WANT OP MENTAL 
 
 CAPAOrrY — IMPOTENCE — CONSANGUINITT AND AEFINnT — EACE AND 
 COLOE AND CIVIL CONDITION — PEIOE MAEEIAGE. 
 
 § 633. Taking marriage in the civil light indicated in the last 
 chapter, the law treats it as it does all other contracts, allowing it 
 to be good and valid in all cases where the parties, at the time of 
 making it, were, in the first place, able to contract; secondly. 
 
TSE INSTITUTION OF MABRIAQE. 827 
 
 willing to contract ; and, lastly, actually did, contract, in the proper 
 forms and solemnities required by law. 
 
 TJie parties must be able to contract. In general, all persons are 
 able to contract themselves in marriage, unless they labor under 
 some particular disabilities and incapacities. There are, however, 
 several disabilities and incapacities which disqualify the parties 
 from entering into a valid contract of marriage, and these will be 
 noted in their order. 
 
 1. Want of the requisite age to consent to the marriage dis- 
 qualifies the person from entering into the marriage relation. 
 What is the age of consent, and under what circumstances infants 
 may contract marriage, has been fully discussed in another place, 
 and, of course, the discussion need not be repeated here. {Ante, 
 §§ 81-86.) 
 
 2. Want of mental capacity is an impediment to marriage. It 
 has been said that the marriage of an idiot or lunatic was valid by 
 the common law {Hamaker t. HamaJcer, 18 III. R. 137 ; Parh y. 
 Barron, 20 Geo. R. 702) ; but Lord Stowell thinks the conclusion 
 is " founded on some notion that prevailed in the dark ages of the 
 mysterious nature of the contract of marriage, in which its 
 spiritual nature almost entirely obliterated its civil character." 
 {Twrner v. Meyers, 1 Hag. Con. R. 414.) And Sir William Black- 
 stone, very pertinently remarks : "A strange determination, since 
 consent is absolutely requisite to matrimony, and neither idiots nor 
 lunatics are capable of consenting to any thing. And therefore the 
 civil law judged much more sensibly when it made such depriva- 
 tion of reason a previous impediment. And modern resolutions 
 have adhered to the reason of the civil law by determining that the 
 marriage of a lunatic, not being in a lucid interval, was absolutely 
 void." (2 Black. Com. 438,439.) And it. is now well settled, 
 both in this country and in England, that an idiot cannot marry, 
 because incapable of entering into any contract ; and, for the same 
 reason, lunatics are incapable of marrying, except during lucid 
 intervals; and their marriages, as well as those of idiots, are 
 absolutely void. It makes no dilBference what the defect of reason 
 is ; it is enough that the mind is so deranged as to be unable to deal 
 with the common affairs of life, although a mere weakness of mind, 
 not amounting to derangement, will not disqualify the person from 
 entering into a valid marriage. {Turner v. Meyers, 1 Hag. Con. 
 R. 414. Browni/ng v. Reeme, 2. Phillim. R. 69. Ex pa/rte 
 
828 LAW OF COVEBTUBE. 
 
 Tijoing, 1 Ves. (& Bea. H. 140. Orump y. Morgan, 3 Ired: JSq. R. 
 91, 96. Foster v. Me(ms,X Spears' Eg. R. 559, 574. Ball v. 
 Mannin, 3 BKgKs \_N'. 8.'] R. 1, 21. Baxter v. Portsmouth, 1 ^«^. 
 Com. ZaM) ^. 190. Ex parte Barnsley, 3 ^<^. ^. 168, 171.) 
 
 The subject of insanity is a fruitful one, and of course it would 
 not be appropriate here to enter upon any extended discussion of 
 the theme.' As applied to marriage, the test of insanity is the same 
 as in other contracts. If the incapacity be such that the party is 
 incapable of understanding the nature of the contract itself, and . 
 incapable, from mental imbecUity, to take care of his or her own 
 person and property, such an individual cannot dispose of his or her 
 own person and property by the matrimonial contract any more 
 than by any other contract. The exact line of separation between 
 reason and incapacity may be difficult to be found and marked out 
 in the abstract, though it may not be difficult, in most cases, to 
 decide upon the result of the circumstances. {Browning v. Reane, 
 supra.) Madness may subsist in various degrees ; sometimes slight, 
 as partaking rather of disposition or humor, which will not inca- 
 pacitate a man from, managing his own affairs, or making a valid 
 contract. It must be something more than this, something which, 
 if there be any test, is held, by the common judgment of mankind, 
 to affect his general fitness to be trusted with the managemeaU of 
 hiniself and his own concerns. {Turner v. Meyers, supra^ 
 
 It has been held in some cases that there may be so much imbe- 
 cility as to render the party incapable of making contracts which 
 will bind his estate, and yet not incapacitate the party from con- 
 tracting marriage. {Ex pa/rte Glen, 4 Dessau. R. 546.) But this 
 would seem to be an erroneous view pf the subject entirely. It is 
 but reasonable to suppose that these unhappy persons who are pro- 
 hibited by law from making any binding contract for the merest 
 trifle, should be protected from the effects of a covenant of so high 
 a nature as that of marriage, which never could be entered into by 
 the party without some base or sinister design. Certainly no other 
 contract requires more brain-quantity, or brain-quality, than that 
 which in effect is to dispose of the person and the property of the 
 individual for life ; and it is the duty of the law to protect those 
 unhappy beings who are incapacitated by reason of mental weak- 
 ness or derangement, to enter into an ordinary contract respecting 
 their property, from the artifice of desperate persons who might be 
 willing to speculate on their misfortunes. ( Vide Anonymous, 4 
 
TBE INSTITUTION OF MAHBIAOE. 829 
 
 Pick. R. 32. Middlelorough v. Rochester^ 12 Mass. R. 363. CoU 
 V. Cole, 5 Sneed's R. 57. Atkinson v. Medford, 46 Maine R. 510.) 
 
 What degree of mental imbecility, what extent of intellectual 
 aberration will suffice to annul a contract of marriage, it is (Jifficult 
 to pronounce ; certainly mere weakness of intellect, or even great 
 eccentricity of conduct, unless it reaches a point that evinces 
 inability to comprehend the subject-matter of the contract, will 
 not suffice; and every principle of sound policy and humanity 
 admonishes us that a contract so important in its social relations, 
 and bearing so materially on the peace and happiness of families, 
 should not be set aside upon slight grounds, or on less proof than 
 would suffice to annul contracts less sacred and important in their 
 nature, "No other test, therefore, in cases of marriage, can be 
 resorted to, except that the mental unsoundness which will dis- 
 qualify persons from entering into other contracts disqualifies 
 them from entering into matrimony. ( Ward v. Dulanex/, 23 Miss. 
 R. 410.) It has frequently been attempted to furnish some general 
 rules which might serve as guides to courts of law in the investi- 
 gation and decision of. cases of this description, but all endeavors 
 to do so seem to have failed ; every case has some distinguishing 
 features, and each case must, therefore, be governed by its own 
 peculiar circumstances. {Medway v. Croft, 3 Cv/rteii Ec. R. S71, 
 675. And vide McElroy's case, 6 Watts & Serg. R. 451.) 
 
 § 634. Drunkenness, of itself merely, unless fraud be practiced, 
 wUl not avoid a contract of marriage ; but if the party be in such 
 a state of intoxication that he is for the time deprived of reason, 
 he cannot be said to have an agreeing mind, and matrimony con- 
 tracted in such a state can be avoided. {Clement v. Mattison, 3 
 Rich. R. 93. Legeyt v. O'Brien,. Milmard^s R. 325, Menkina 
 V. Llghtner, 18 III. R. 282. Gorey. Gibson, 13 Mees. & Wels. 
 R. 623. SJiaw v. Thackary, 23 Eng. L. da Eg. R. 18.) 
 
 The rule of law in criminal cases is, that a man is liable for a 
 criminal act committed during a fit of drunkenness brought on by 
 his own wrongful indulgence ; unless the crime were committed 
 under the influence of insanity which is habitual or fixed, though 
 caused by frequent intoxication, and originally contracted by his 
 own a;cts. The law discriminates between the delirium of intoxi- 
 cation and the insanity which it sometimes produces. "While the 
 drunkenness continues, the person under its influence is responsible 
 as a moral agent, though reason in the mean time has left her 
 
830 LAW OF COVEETUItE. 
 
 dominion, and he is held for his criminal act under such circum- 
 stances, upon the principle that his drinking to excess is a criminal 
 assent. But this doctrine does not obtain in civil jurisprudence ; 
 and any obligation entered into by a person when deprived of the 
 exercise of his understanding by intoxication, is voidable by him- 
 self, though the intoxication was voluntary and not procured 
 through the circumvention of the other party. {Barrett v. Bux- 
 ton, 2 AikirCs [ Fi!.] li. 167. Hutchinson v. TindalZ, 2 GreerCs 
 Ch. B. 357. Johnston v. Brown, 2 Scotch Sess. Cos. [new ed.] 437. 
 Browning v. Bewne, 2 PhilUm. B. 69.) 
 
 It would hardly seem possible that any decent person would be 
 willing to stand up and be joined in matrimony with another 
 known to be beastly drunk, and yet such instances have occurred, 
 especially when there has been a great disparity in the pecuniary 
 cii'cumstances and social condition of the parties. 
 
 Deaf mutes may contract matrimony, and the engagement may 
 be solemnized by signs. {Dickenson v. Blisset, 1 DicTcen^ B. 268. 
 Brown v. Fisher, 4 Johns. Ch. B. Ml. Harrod v. Harrod, 1 
 Kay (& Johns. B. 4. Elyo^s case. Cart. B. 53.) Formerly these 
 afflicted persons were regarded as idiots, especially when they were 
 deaf and dumb from their nativity ; but many of them have often 
 displayed great intelligence and capabilities for intellectual and 
 moral cultivation ; and now they are permitted to enter into mar- 
 riage and other engagements, except upon proof of their mental 
 capacity it is found wanting in the same degree as would disqualify 
 other persons from making a valid contract. Of course it is no 
 objection to a matrimonial alliance that the parties are blind. 
 
 § 635. By a statute passed in England in 1742, and still in 
 force there, it is provided that the marriage of lunatics and persons 
 under frenzies (if found lunatics under a commission, or committed 
 to the care of trustees by an act of parliament), before they are 
 declared of sound mind by the lord chancellor, or the majority 
 of s\ich trustees, shall be void. (15 George II, ch. 30.) And by 
 another act the provisions of the former are extended to Ireland. 
 (51 George III, ch. 37.) These statutes render the marriages in 
 question null and void, although they may have been contracted 
 during lucid intervals. But if no commission of lunacy has issued, 
 the marriage of a lunatic during a lucid interval is good. {Turner 
 V. Meyers, 1 Hag. Con. B. 414. Wheeled' v. Alderson, 3 Hag. 
 Ec. B. 574, 599. Ca/rtvyright v. Ca/rlnimght, 1 PhiUim. B. 90. 
 
THE INSTITUTION OF MAREIAQE. 831 
 
 JBorlaae v. Borlase, 4 Notes Cases 108. Orimani v. Draper, 12 
 Jur. 925.) It is not understood that the statute of George II is a 
 part of the common law of the American States ; and in general 
 in this country, if it appears that both parties to a marriage were 
 sane, and possessed of the requisite mental capacity, at the time 
 the nuptials were celebrated, the marriage will be sustained, 
 though one of the parties may have been insane before or sub- 
 sequent to the marriage ; at the same time, if it appears that a 
 party to a marriage who is habitually of sane mind, was temporarily 
 insane at the time the marriage was celebrated, the marriage may 
 be avoided. {Legeyt v. O'Brien, Milward^s B. 325. Parlcer v. 
 Paries, 2 Zee's B. 382. S. C. 6 Eng. Eo. B. 165.) 
 
 It is generally laid down that marriage with an idiot or lunatic 
 is absolutely void, and that no sentence or decree of avoidance is 
 necessary, and this is the rule at common law ; but the statutes of 
 some of the states render such marriages absolutely void only from 
 the time their nullity is declared by a court of competent authority. 
 Thus, in the State of New York, where either party to a marriage 
 shall be incapable of contracting to it, the marriage will be void 
 from the time its nullity shall be declared by a court of equity. 
 (2 Bevised Statutes, pa/rt, 2 ch. 8, tit. 1, § 4, 2 Statutes at La/rge, 
 144.) 
 
 In the State of Massachusetts, it is enacted by statute that the 
 validity of a marriage shall not be questioned in the trial of a 
 collateral issue on account of the insanity or idiocy of either party, 
 but only in a process duly instituted in the life-time of both par- 
 ties for determining such validity. {Oen. Stat. ch. 107, § 2.) 
 
 In Wisconsin, the statute provides that when either of the 
 parties to a marriage, for want of age or understanding, shall be 
 mcapable of assenting thereto, and there shall have been no subse- 
 quent voluntary cohabitation of the parties, the marriage shall be 
 void from the time its nullity shall be declared by a court of 
 competent authority. {Rev. Stat. ch. 79, § 2.) 
 
 Others of the states have similar enactments in imitation more 
 especially of the State of lifew York. And for the sake of the 
 good order of society, and the peace of mind of all persons con- 
 cerned, and to save all question as to the real capacity of the party 
 at the time the marriage was entered into, it is deemed expedient 
 and best in all cases that the nullity of the marriage should be 
 ascertained and (Jeclared by the decree of a coui't of competent 
 
832 ZAW OF COVERTUBE. 
 
 jurisdiction. Morality and policy requirjB that it should not be 
 left unknown or uncertain, either to the parties or to others, 
 whether the relation of husband and wife actually exists or not. 
 {Ferlat v. Oogin, HoplcWs Oh. B. 478, 484. Hayes v. Watts, 3 
 Phillvinore^s R. 44. Petn'eis^. Tondear,! Itag. Oon. R. 138. 
 Crump V. Morgan, 3 Ire^. Eg. R. 91.) 
 
 In the State of New York, children of a marriage annulled on 
 the ground of lunacy or idiocy, are entitled to succeed in the same 
 manner as legitimate children to the real and personal estate of 
 the parent who was of sound mind, and the marriage of the lunatic 
 may be declared void upon the application of the lunatic, after the 
 restoration of reason ; but in such case, no sentence of nullity will 
 be pronounced if it shall appear that the parties freely cohabited 
 as husband and wife after the lunatic was restored to a sound 
 mind. "When a marriage is sought to be annulled on the ground 
 of the idiocy of one of the parties, it may be declared void on the 
 application of any relation of the idiot, interested to avoid the 
 marriage, at any time during the life-time of either of the parties ; 
 when it is sought to be annulled on the ground of the lunacy of 
 one of the parties, it may be declared void at any time, during the 
 continuance of the lunacy, or after the death of the lunatic in that 
 state, during the life-time of the other party to the marriage, on 
 the application of any relative of the lunatic interested to avoid 
 the maiTiage; and when the marriage of an idiot or lunatic is 
 sought to be annulled; during the life-time of both the parties to 
 the marriage, and no suit shall be prosecuted by any near relative, 
 a sentence of nullity may be pronounced, on the application of any 
 person admitted by the court to prosecute as the next friend of 
 such idiot or lunatic. (2 Rev. Stat, part 2, ch. 8, tit. 1, §§ 24, 25, 
 26, 27, 28. 2 Stat, at La/rge, 148, 149.) In other states similar 
 provisions in the statute may be found. 
 
 § 636. A third impediment to marriage is the impotence of one 
 or both of the parties. This is defined to " consist in the inca- 
 pacity for copulation, or in the impossibility of accomplishing the 
 act of procreation " {Shelf orcC's Marriage and Di/ooroe, 202) ; or, 
 the " incapacity of either spouse for the act of copulation ; or, as 
 some think, the want of power to procreate children." (1 
 Eraser's Dom. Rel. .53.) Or, impotence may be said to be the 
 permanent inability, from malformation, accident or disease, for 
 copulation or procreation. 
 
THE Ih'STITirriON OP MARRIAGE. 833 
 
 It has been said, that the first cause and reason of matrimony 
 ought to be the design of having an offspring ; and that the second 
 ought to be the avoiding of tornication. {Ayl. Barer. 360.) And 
 it is perfectly legitimate for parties to have in view, when they 
 enter the married state, a lawful indulgence of the passions to pre- 
 vent licentiousness, and the procreation of children, according to 
 the evident design of Divine Providence. {Dean y.Aveling, 1 Jioh- 
 ertson's B. 279, 298. Briggs v. Morgan, 3 PhilUm. B. 325.) The 
 propositions laid down in the marriage service of the English 
 church embody the common sense of the miatter^ wherein they 
 state that marriage is ordained for three purposes : the procreation 
 and education of children ; the avoidance of incontinence ; and the 
 mutual society, help and comfort of the married pair. Any union 
 where provision is not made for fulfilling all of these purposes, may 
 be. proved contrary to natm-al law, using that word in its widest 
 sense. No person should ever offer himself in marriage unless he 
 has the ability of consummating it ; and when an inipoten-t person 
 palms himself upon a female not cognizant of his condition, he 
 perpetrates a most grievous wrong. It is interesting to note the 
 points that have been made in the discussion of this question of 
 impotency, and the different views which have been expressed by 
 text-writers and judges upon the subject, and as to what is suffi-' 
 cient to forbid marriage. Mr. Fraser says : "The ninety-eighth 
 constitution of Leo, the philosopher, expresses at great length the 
 utter abhorrence of the emperor at the doctrine, that the potentia 
 copulandi, without the power of procreating children, was suffi- 
 cient. The most eminent commentators on the canon law are 
 of the same opinion. Bower argues the point with great warmth, 
 holding, as his leading principle, that marriage is not instituted for 
 the satisfying of lust, or the exciting of passion, but for the beget- 
 ting of children. {Brown, 2, 4, 10.) In a late criminal case, as 
 to whether emissio was necessary to constitute the crime of rape, 
 Lord Medwyn is reported to have said, that he held the potentia 
 copulandi, without the potentia seminandi, to form a good defense 
 to an action of nullity on the head of impotency. {Lord Advocate 
 V. Bdbertson, 12 Mar. 1836.) This must, however, be a misreport, 
 as the opinion is based on that of Sanchez, which is entirely oppo- 
 site ; for that learned canonist holds it to be impotency if a woman 
 was ita arcta ut mater esse non potest. {Sanchez, 7, 92, Ifos. 1, 8, 
 11, and 2, 21, 5, and 7, 96, 7.) A quotation is professed to be 
 105 
 
834 LAW OF COVEBTUBE. 
 
 made in the report from Sanchez ; but there is no reference given, 
 and the words quoted seem to be those employed by Sanchez to 
 designate the views of authors that he condemns." (1 Fraser'a 
 Bom. Eel. 53-55.) 
 
 In a case before Dr. Lushington sitting in the consistory court of 
 London in 1845, the judge observed : " Mere incapability of con- 
 ception is not sufficient ground whereon to found a decree of nullity, 
 and alone so clearly insufficient that it would be a waste of time to 
 discuss an admitted point. The only question is, whether the lady 
 is or is not capable of sexual intercoui-se ; or, if at present incapable, 
 whether that incapacity can be removed." {Dean v. Aveling, 1 
 liobertson^s R. 279.) Sexual intercourse, in the proper meaning 
 of the term, is ordinary and complete intercourse ; and yet it can- 
 not be said that every degree of perfection would deprive it of its 
 essential character. There must be degrees difficult to deal with ; 
 but if so imperfect as scarcely to be natural, it would probably be 
 regarded as no intercourse at all. It can hardly be said that the 
 true interests of society would be advanced by taking within 
 the marriage bonds parties driven to such disgusting practices. 
 Certainly it would not tend to the prevention of illicit intercourse, 
 one of the greatest evils to be avoided. And Dr. Lushington said 
 with respect to the case before him : " If there be a reasonable 
 probability, that the lady can be made capable of vera copula, of 
 the natural sort of coitus, though without the power of conception, 
 I cannot pronounce this marriage void. I will briefly state the 
 reasons. In the case first supposed, the. husband must submit to 
 the misfortune of a barren wife, as much when the cause is visible 
 and capable of being ascertained, as when it rests in indiscoverable 
 and unascertained causes. There is no justifiable motive for inter- 
 course with other women in the one case more than in the other. 
 J3ut when the coitus itself is absolutely imperfect, and I must call 
 it unnatural, there is not a natural indulgence of natural desire ; 
 and almost of necessity disgust is generated, and the probable con- 
 sequences of other connections, with men of ordinary self-control, 
 become almost certain. I am of opinion, that no man ought to be 
 reduced to this state of quasi unnatural connection, and consequent 
 temptation ; and therefore I should hold the marriage void. The 
 condition of the lady is greatly to be pitied, but on no principle of 
 justice can her calamity be thrown upon another." {Dean v. 
 AveUng, 1 Rolertson's E. 279, 299.) 
 
THE INSTITUTION OF MARSIAGE. 835 
 
 Although this was a case for a divorce before Dr. Liishington, 
 the principles enunciated by him apply as well to parties proposing 
 to enter the marriage relation as to that. Of course it cannot 
 honestly be known for a certainty before marriage that the female 
 may not prove to be a barren or sterile wife, but it is ordinarily 
 known to the parties, when they propose the matrimonial alliance, 
 whether there is natural malformation of the sexual organs to ren- 
 der the natm-al coitus impossible, and if such be the fact they should 
 understand that it is a natural impediment to maniage. It is 
 wholly immaterial as to the origin of the impotence, whether 
 connate or the result of accident or disease, if it exist at the time 
 of the proposed marriage. Upon this subject the Archbishop of 
 Canterbury, in a case before the twelve commissioners to be decided, 
 of which he was one, said : " There are three sorts of eunuchs, or 
 men unfit to marry ; the one is of God's making, the second is of 
 man's making, and the third is of their own. making. Tlie first 
 are they that are past from their mother's belly, who either are 
 frigidi or such as have no members fit for generation, or some 
 apparent debility. The second are those who are castrated by 
 men, or by some violence have that hindered in them, whereunto, 
 by nature, they are fit in respect of procreation. The third hath 
 no coherence with this nobleman." {Essex Y.Essex, 2 JSowelVs 
 State Trials, 786, 887.) 
 
 § 637. "With respect to the female. Chancellor "Walworth well 
 said in a, case before him : " Impotence on the part of the female, 
 which cannot be cured by proper medical treatment or/a surgical 
 operation, is a case of very rare occurrence. And the cases of this 
 kind which will be likely to come up before this court for adjudica- 
 tion, on the complaint of the husband, will be limited to cases of 
 impervious vagina, from an original malformation, or the effect 
 of some supervening infirmity or disease, as mere sterility can in 
 no case form a sufficient ground for a decree of nullity." {Devan- 
 hagh v. Devanbagh, 6 Paige^s Oh. JS. 554, 557.) 
 
 Dr. Beck, in his " Elements of Medical Jurisprudence," says : 
 " From a review of the causes of impotence in both sexes, it is 
 evident that the absolute ones are few in number, in that they are 
 mostly palpable to the senses, and that the number formerly 
 assigned to this class has been greatly reduced by the improvements 
 in surgery." (1 BeoFs Med. Jur. 89.) 
 
836 LAW OF COrEBTTrRH. 
 
 When the parties have the least reason to suspect that they are 
 impotent they should never venture upon marriage until they have 
 been thoroughly tested by surgical e^^amination and treatment. 
 However unpleasant and mortifying such an examination may be, 
 far better that it be submitted to than run the hazard of not being 
 able to consummate their nuptials, and being under the necessity 
 of submitting to the disgrace of a separation. 
 
 Of course, simple sterility is no legal impediment to niarriage ; 
 if it was, no female beyond the ordinary time of child-bearing 
 could enter the marriage state. When a man knowingly marries 
 a woman past the age of child-bearing, he has no cause to com- 
 plain of the barrenness of the connection, and no unpleasant effects 
 are likely to result from the union. But in case of the impotence 
 of either of the parties, none of the peculiar ends of matrimony 
 can be accomplished by marriage, and a union should be discarded 
 as much as the marriage of two persons of the same sex. 
 
 In the State of ISTew York, a suit to annul a marriage on the 
 ground of the physical incapacity of one of the parties,. can only 
 be maintained by the injured party against the party whose inca- 
 pacity is alleged, and must in all cases be brought within two 
 years from the solemnization of the marriage. (2 R&o. Stat, part 
 2, ch. 8, tit. 1 § 33. 2 Stat, at Large, 149.) And in all these cases 
 the court should proceed with the greatest diligence and care, not 
 only to avoid collusion by the parties, but also to guard against an 
 honest mistake under which they may be acting, merely from the 
 want of proper medical advice and assistance. {Daveribagh v. 
 BaveTihagh, 5 Paige's Ch. B., 554. K B. v. K C. B. 28 Bari. 
 B. 299.) 
 
 Ordinarily, impotency is a matter which cannot be proved by 
 witnesses. The ilature of the fact precludes it, and therefo"re it 
 has been held that the courts have the power to compel the party 
 alleged to be impotent to submit to a medical examination, for the 
 purpose of ascertaining how the fact is. Such an examination, to 
 be sure, is offensive to natural modesty, but if the court should 
 hesitate to exercise the power to compel it, it would in most cases 
 amount to an absolute denial of justice, and the court must not 
 sacrifice justice to notions of delicacy of its own. {Newell v. Newell, 
 9 Paige's Ch. B. 25. Davenhagh v. Daveribagh, supra. LeBa/r- 
 Ton V. LeBarron, Am. Law Beg. {^N. 8.'] 212. Norton v. Seton, 
 l.Lkg. EcG. B. 384. Briggs v. Morgan, lb. 408.) 
 
THE INSTITUTION OP MARRIAGE. 837 
 
 § 638. A fourth impediment to marriage is the consanguinity or 
 affinity of the parties. Consanguinity and affinity differ widely in 
 their nature, and yet by the law little or no distinction is made 
 between them. TJiey may, therefore, be treated together as an 
 impediment to marriage. 
 
 In all countries where the canon law has had authority or 
 influence, marriage between near relatives by blood or affinity is 
 prohibited. Similar prohibitions were contained in the Jewish 
 laws; and, indeed, the test of the Levitical degrees adopted in 
 most countries had its origin in the Mosaic Code. The same pro- 
 hibitions also existed in the laws and usages of the Greeks and 
 the Romans, and they may be said to be founded in the law of 
 nature ; and a marriage within the Levitical degrees is regarded 
 in all Christian communities as a nuisance extremely offensive to 
 the laws and manners of society, and tending to endless confusion, 
 and the pollution of the sanctity of private life. {Bv/rgess v. 
 Bv/rgess, 1 Hag. Con. B. 386. Woods v. Woods, 2 Curt. B. 516. 
 2 Kent's Com. 82.) 
 
 It is very difficult to ascertain the exact point at which the law 
 of nature would discountenance the union, and hence the matter is 
 generally regulated by statute. Usually the Levitical degrees are 
 adopted as the test of prohibition, ' and marriages within those 
 degrees, under some exceptions, are made void by statute. 
 
 In 1563, Archbishop Parker published a table of prohibited 
 degrees, which has ever since been regarded the basis of judicial 
 opinion on the subject in England, and of legislative enactments in 
 the United States. "With respect to this table, it was observed in 
 a leading case that " these tables do show the sense of the Church 
 of England, and so are a proper exposition of the law of God, and, 
 by consequence, ought to have great weight with the judges when 
 they expound the Levitical law ; and they are plainly the decision 
 of this reformed church touching the crime of incest ; and they do 
 retrench the exorbitant and unwan'anta,ble constructions of the 
 Church of Eome, who made the law of God of none effect by 
 their traditions; and yet they expound the law of God in its full 
 latitude." {Buthv v. Gastrill, GiWerth Ch. B. 156.) 
 
 According to Archbishop Parker's table of degrees, a man may 
 not marry his grandmother, grandfather^s wife, wife's grandmother, 
 father's sister, mother's sister, father's brother's wife, mother's 
 brother's wife, his mother, step-mother, wife's mother, his daughter, 
 
838 LAW OF COVERTURE. 
 
 wife's daughter, son's wife, his sister, wife's sister, brother's wife, 
 son's daughter, daughter's daughter, son's son's wife, daughter's 
 son's wife, wife's son's daughter, wife's daughter's daughter, brother's 
 daughter, sister's daughter, brother's son's wife, sister's son's wife, 
 wife's brother's daughter, or wife's sister's daughter ; and a woman 
 may not marry her grandfather, grandmother's husband, husband's 
 grandfather, father's brother, mother's brother, father's sister's hus- 
 band, mother's sister's husband, husband's father's brother, husband's 
 mother's brother, her father, step-father, husband's father, her son, 
 husband's son, daughter's husband, her brother, husband's brother, 
 sister's husband, son's son, daughter's son, son's daughter's husband, 
 daughter's daughter's husband, husband's son's son, husband's 
 daughter's son, brother's son, sister's son, brother's daughter's 
 husband, sister's daughter's husband, husband's brother's son, or 
 husband's sister's son. ( Vide 1 Bishop on Marriage and Divorce, 
 § 318, note 2.) 
 
 § 639. Marriages in the ascending and descending line, as between 
 parents and children, are everywhere regarded as monstrous con- 
 nections and repugnant to the law of nature, and so far the Leviti- 
 cal is a moral law, as contradistinguished from a positive prohibition 
 to the Jews, and binding upon all mankind. {Harrison v. Ruswell, 
 Yaughan's E. 206. S. G. 2 Vent. B. 9.) And it has been laid down 
 in the State of New York that marriages between brothers and 
 sisters in the collateral line, are equally, with persons in the lineal 
 line of consanguinity, unlawful and void, as being plainly repug- 
 nant to the first principles of society and the moral sense of the 
 civilized world ; but it is thought that the prohibition will not 
 extend further, without a statute prescribing the forbidden degrees. 
 ( Wightman v. Wightman, 4 Johns. Ch. B. 343, 347.) 
 
 The canon and common law make no distinction between con- 
 nections by consanguinity and aflSnity, although the effect upon 
 the offspring is not the same in the one case as the other. Upon 
 this subject in a leading case in England, the judge observed : " It 
 was necessary, in order to perfect the union of marriage, that the 
 husband should take the wife's relations, in the same degree to be 
 the same as his own, without distinction, and vice versa j for if they 
 are to be the same person, as was intended by the law of God, they 
 can have no difference in relations and by consequence the prohi- 
 bition touching affinity must be carried as far as the prohibition 
 touching consanguinity ; for what was found convenient to extin- 
 
THE INSTITUTION OF MABBIAGK 839 
 
 guish jealousies amongst near relations, and to govern families and 
 educate children amongst people of the same consanguinity, would 
 likewise have the same operation amongst those of the same 
 affinity. And when we consider who are prohibited to marry by 
 the Levitical law, we must not only consider the mere words of the 
 law itself, but what, by a just and fair interpretation may be 
 adduced from it." {Butler v. Gastrill, Gilbert's Ch. B. 156, 158.) 
 
 Affinity properly means the tie which arises from marriage 
 betwixt the husband and the blood relatives of the wife, and 
 betwixt the wife and the blood relatives of the husband, conse- 
 quently while the marriage remains unbroken, the blood relatives 
 of the wife stand in the same degree of affinity to the husband as 
 they do in consanguinity to her. Thus, the father of the wife 
 stands in the first degree of affinity to his son-in-law, as he does in 
 the first degree of consanguinity to his daughter. Relationship by 
 affinity may also exist between the husband and one who is con- 
 nected by marriage with a blood relative of the wife. Thus, when 
 two men marry sisters, they become related to each other in the 
 second degree of affinity, as their wives are related in the second 
 degree of consanguinity. But there is no affinity between the 
 blood relatives of the husband and the blood relatives of the wife. 
 .{Paddock v. WeUs, 2 Barl. Ch. B. 331, 333. Vide also Charles 
 V. John, Year Booh, 41 Edw. 3, p. 9.) 
 
 The relationship by consanguinity is, in its nature, incapable 
 of dissolution ; but the relationship by affinity ceases with the 
 dissolution of the marriage which produced it. Therefore, though 
 a man is, by affinity, brother to his wife's sister, yet, upon the 
 death of his wife, he may lawfully marry her sister. Such is 
 the doctrine in Vermont and most of the American States, although 
 in England a man is not permitted to marry his deceased wife's 
 sister. {Blodget v. Brinsmaid, 9 Vt. B. 27.) 
 
 Whether it be proper or lawful, in a religious or moral sense, for 
 a man to marry his deceased wife's sister, has been much discussed 
 in the American States, especially by essayists and in the church 
 judicatories, and both sides of the question have been sustained 
 with great ability. Such a marriage, however, is not forbidden by 
 the statutes of any of the states, unless it be by the Code of 
 Virginia. It has been so held in Virginia, and probably thei law 
 is the same there now. {Comw^rvwealth v. Perrymam,, 2 Leigh's 
 Bi T17. Vide also Hutohins v. Commonwealth, 2 Va. Cases, 331. 
 
840 ZAW OF COVJSBTUEE. 
 
 Comrrmxwealth v. Lefimoich, 6 Rand. B. 657. Kelly t. Scott, 5 
 Oratt. R. 479.) But in several of the states, the practice has been 
 expressly or implielily sanctioned by judicial authority. {Pad- 
 d&ch Y, Wells, 2 Rarb. Ch. R. 331. Rlodget v. Rrinsmaid, 9 Vt. 
 R. 27. The State v. Shaw, 3 Ired. R. 532. Jfoses v. The State, 
 11 Humph. R. 232. Morgans. The State, 11 Ala. R. 289. Ooodall 
 V. Thurman, 1 HeaWs R. 209. Greenwood v. Curtis, 6 Mass. R. 
 358, 379.) As before intimated, under the English statute, it is 
 incestuous for a man to marry his deceased wife's sister, or for a 
 woman to marry her deceased husband's brother. {Hill v. Good, 
 Vamgh. R. 302; Harris v. Hicks, 2 Salk. R. 548. Ray v. /S'Ae?'- 
 Mjoocf, 1 Cwj-^. ^c. ^. 173. Regina v. Chadwioh, 12 t/w?". 174. 
 Aughtie v. Aughtie, 1 Phillim. R. 201.) And in most Catholic 
 countries such marriages are formally prohibited, while in most 
 Protestant countries they are lawful. Under the statute in force 
 in England, it has been held that the marriage of a man with the 
 daughter of the half sister of his deceased wife, is null and void ; 
 and further that a marriage within the prohibited degrees of con- 
 sanguinity or affinity, is null and void, although one of the parties 
 is illegitimate. {The Queen v. Brighton, 101 JSng. G. L. R. 446.) 
 
 § 640, By the statute of New York, marriages between parents 
 and children, including grandparents and grandchildren of every 
 degree, ascending and descending, and between brothers and 
 sisters of the half, as well as. the whole blood, are declared to be 
 incestuous and absolutely void ; and the prohibition extends to 
 illegitimate as well as legitimate children and relatives. (2 Rev, 
 Stat, part 2, ch: 8, tit. 1, § 3. 2 Stat, at Large, 144.) 
 
 The law of Massachusetts upon the subject is substantially the 
 same as in New York. {Gen,. Stat. ch. 106, §§ 1-6.) 
 
 It has been held that a man-iage, valid where it was contracted, 
 is valid in Massachusetts, if not incestuous by the law of nature, 
 or not made void by the statute in regard to residents of the state 
 going out of the state and there having their marriage solemnized, 
 when such marriage, if solemnized in the state, would be void ; 
 and, in the same case, it was decided that the intermarriage of a 
 man and his mother's sister, though void by the statutes of the 
 state, is not incestuous by the law of nature, and was not void by 
 the law of England before the statute of 6 William lY, chapter 54, 
 though it was voidable by process in the ecclesiastical courts, and, 
 therefore, such a jnarriage celebrated in England, between a man 
 
THE INSTITUTION OF MARRIAQE. 841 
 
 and his mother's sister, and never avoided there, though absolutely 
 prohibited by the Massachusetts statute, was, nevertheless, recog- 
 nized as binding in that state. {Sutton v. Warren, 10 Metcalfs 
 R. 451.) 
 
 By the statutes of Pennsylvania all marriages within the degree 
 . of consanguinity or aflSnity, according to the table established by 
 law, are declared void to all intents and purposes ; and the table 
 of forbidden degrees established by the statute is about the same 
 as that established in Englandj except the grandparents, of the par- 
 ties are not mentioned, and some of the more distant collateral 
 relatives are omitted. {Laws of 1860, Pwdon's Dig. 346.) 
 
 Other states have similar enactments to those already referred 
 to, and probably in most of them marriages witliin the prohibited 
 degrees are, by statute, absolutely void. 
 
 § 641. Another and fifth impediment to marriage, proper to be 
 noticed, is that which sometimes obtains by reason of race or color 
 and civil condition. In some countries and states statutes exist to 
 prevent intermarriages between the white races and people : of 
 color ; and, under the civil law, certain persons were prohibited 
 from joining in marriage because of their civil condition. Thus, 
 in several of the United States, marriages are positively forbidden 
 between the white and colored races, and occasionally a very nice 
 question has been presented to the courts respecting the meaning 
 of the words "negro," "mulatto,", "persons of color," and "white 
 persons." In one case, in the State of Maine, Shepley, Ch. J.-, 
 observed : " There is a difference of opinion respecting the propor- 
 tion of African blood which will prevent a perso^j possessing it from 
 being regarded as white. Some courts appear to have held that a 
 person should be so regarded when his white blood predominated 
 both in proportion and in appearance. Those least disposed to 
 consider persons to be white who have any proportion of African 
 blood have admitted that persons possessing only one-eighth part 
 of such blood should be regarded as white." {Bailey v. Mske, 34 
 Maine B. 77.) Most of the late slave states had statutes prohibits 
 ing intermarriage between free negroes and slaves, but all of those 
 laws have been either repealed or become obsolete, and but few of 
 the states have statutes, at present, positively prohibiting intermar- 
 riages between white persons and. persons of color. {But vide The 
 State V. Walters, 3 Ired; B.. 455. The State v. Fore, 1 ib. 378. 
 The State v„ Hooper, 5 ih. 201, The State v. Boland,. 6 ib.- 241. 
 106 
 
842 
 
 LAW OF COVEBTTTRE. 
 
 The State v. Milton, Busbee's E. 49. BarlcsUre v. The State, 7 
 Ind. R. 389. Tlie State v. Brady, 9 Humph. R. 74.) 
 
 Mr. Burge, in his treatise upon the colonial and foreign laws, 
 observes : " There were certain impediments to marriage peculiar 
 to the civil law, which are not adopted in the codes of other 
 countries. These were impediments described as being ex causa 
 potestatis. Thus, a tutor or curator could not marry his ward 
 until his office had terminated, or unless his accounts had been 
 passed. A person administering a government, or public office, in 
 a province, and the members of his family, were not permitted to 
 intermarry with a person domiciled in his province, unless they 
 had been betrothed to each other before he had accepted the office. 
 Notwithstanding these prohibitions, the subsequent voluntary 
 cohabitation of the parties, after the relation which caused the pro- 
 hibition had ceased, rendered the marriage valid ah initio^ (1 
 Surge's Colonial and Foreign Laws, 138.) 
 
 So, also, no person is permitted to marry a ward of the court 
 without the express sanction of the court ; and if a man should 
 marry a female ward without the consent and approbation of the 
 court, he will be treated as guilty of contempt, even though he was 
 ignorant of the fact that she was a ward of court. And when 
 there is reason to suspect an intended and improper marriage with- 
 out its sanction, the court will, by an injunction, not only interdict 
 the marriage, but also interdict communication between the ward 
 and her admirer. (2 Story's Eg. Jur. §§ 1359, 1360.) This may not 
 be regarded as strictly an impediment, but it is a provision of law 
 to secure due marriages and protection to infants very proper to 
 notice. The interdict of marriages between persons of the white 
 and colored races by statute is becoming more and more uncom- 
 mon, as experience has shown that the matter may very properly 
 and safely be left to the education, taste and customs of the people. 
 
 § 642. By the civil law, persons in a state of slavery or servitude 
 are not entitled to the rights and considerations of matrimony, and 
 hence, there is no recognized mai-riage relation in law between 
 slaves. Nor were slaves under the civil law proper objects of cog- 
 nation or affinity, but of g'wasz-cognation only. {Taylor'' s Elements 
 of Civil Load, 429. Cooper's Justinian, 411, 420.) Contubernium 
 was the matrimony of slaves ; a permitted cohabitation not par- 
 taking of lawful marriage, which they could not contract. The 
 same disability applies at the present day in the case of slaves 
 
TSE INSTITUTION OF MARRIAOS. 843 
 
 wherever slavery exists. The state of slavery in Cuba, and in 
 Brazil, and lately in this country, compares with that existing 
 under the Eoman law in many respects. The progress of society 
 in civilization, more correct notions on the subject of moral obli- 
 gation, and, above all, the benign influence of the Christian religion, 
 have softened many of the rigors attendant on slavery among the 
 ancients ; but the rights of the slave in respect to man'iage remain 
 substantially as under the civil law. The Hebrew law did not 
 recognize marriage among slaves of other than Hebrew origin, 
 although a relation existed similar to the contubernium of Eome. 
 The marriage of free men and women with slaves was very much 
 discouraged by the laws, civil and ecclesiastical, of the middle ages. 
 Heavy penalties were annexed, and the right was even conceded 
 to parents to kill their children who persisted in such an alliance. 
 The question was submitted to the See of Eome, whether a free 
 man might put away a wife taken from the servile class, and take 
 a free woman to his bed ; and Leo responded in the affirmative. 
 The contract of marriage not being recognized among slaves, none 
 of its consequences follow from the contabernial state existing 
 between them. {Gdbb on Slavery, §§ 273, 274.) But this question 
 has ceased to be of much interest in this country, as 'slavery no 
 longer exists here; and it is to be hoped that the inhuman institu- 
 tion will soon be abolished throughout the civilized world. 
 
 § 643. The sixth and last impediment to marriage, is a prior 
 marriage, or having another husband or wife living, in which case, 
 besides the pains and penalties consequent upon the act as a felony, 
 the second marriage is to all intents and purposes absolutely, void. 
 Such is the common law upon the subject, and the same may 
 probably be said to be the law in all of the American States and 
 territories, except the territory of Utah. Polygamy is condemned 
 both by the law of the l^ew Testament and the policy of all 
 Christian states. For example, by the statutes of New York, it is 
 declared that no second or subsequent marriage shall be contracted 
 by any person during the life-time of any former husband or wife 
 of such person, unless the marriage with such former husband or 
 wife shall have been annulled or dissolved for some cause other 
 than the adultery of such person ; or unless such former husband 
 or wife shall have been finally sentenced to imprisonment for life ; 
 and every marriage contracted in violation of this provision shall 
 be absolutley void; except that if any person whose husband or 
 
84:4: LAW OF COVEETUMi;. 
 
 ■wife shall have absented himself or herself for the space of five 
 successive years, without being known to such person to be living 
 during that time, shall marry during the life-time of such absent 
 husband or wife, the marriage will be void only from the time that 
 its nullity shall be pronounced by a court of competent authority. 
 And, further, no pardon granted to a person sentenced to imprison- 
 ment for life shall restore such person to the rights of any previous 
 marriage. (2 E&v. Stat, part 2, cK. 8, Ut. 1, §§ 6, 6, T. 2 Stat, at 
 Large, 144, 145.) 
 
 Under these provisions of the statute it has been held that when 
 the husband has been absent more than five years, and his wife has 
 contracted a second marriage in good faith, her husband not being 
 known to her to be living -within the five years, a cohabitation 
 ■with the second husband after the mistake is discovered will not 
 entitle the first husband to a divorce on the ground of adultery. 
 The last marriage being voidable merely, but not void, the remedy 
 of the first husband is by a bill to annul the voidable mamage. 
 ( Yalleau v. YalleoAi, 6 Paige^s Ch. B. 207.) And it has been 
 further held that such second marriage under such circumstances, 
 can be declared void only on the application of one of the parties 
 to 'it, during the life-time of the other ; and that it cannot be 
 declared void collaterally, after the death of the first husband in 
 actions instituted by creditors. {Gropsey v. MeKenney, 30 JBarl. 
 B. 4Y. Vide also Crojpsey v. Ogden, 11 JSf. Y. E. 228.) 
 
 In the State of Massachusetts, the statute upon the subject, 
 except that the provision with respect to the absence of one of the 
 parties under the circumstances suggested is seven years instead of 
 five, as in New York. {Gm. Stat. ch. 106, § 4, ch. 107, § 30. Vide 
 Commorvwealth v. Mash, 7 Met. B. 472.) • 
 
 In this state it has been held that when a man is divorced for 
 adultery, and marries again during the life of his former wife, his 
 ' last marriage is absolutely void. {Commonwealth v. Sunt, 4 Gush. 
 B. 99.) But when a marriage in this state is entered into by a 
 woman previously married in^another state, and then divorced for 
 the acts of the husband which would not be a cause of divorce in 
 this state, it was held that the last marriage was valid, although 
 contracted while her former husband was stiU living. {Clark v. 
 Clarh, 8 Gush. B. 385.) 
 
 In the State of Ohio, the provisions of the statute are similar to 
 those of JSTew Tork upon the subject, except that the absence must 
 
TSE INSTITUTIOif OF MARRIAGE. 845 
 
 be continual and willful for three years next before the second 
 marriage in order to justify the mari'iage. (1 Bev. Stat. ch. 71, § 1.) 
 
 If there be no statute regulation, the common law doctrine will 
 prevail ; and the second marriage, while the first remains undis- 
 solved by a competent court, or by the death of one of the parties, 
 will be actually void, and, being void, it imposes no legal restraint 
 upon the party imposed upon from contracting another, though, as 
 has bieen well said, prudence and delicacy impose a restraint in 
 such case until the fact is so generally known as not to be a matter 
 of doubt, or until such marriage has been impeached in a judicial 
 proceeding, whenever that may be done. {Patterson v. Gaines, 6 
 Eow. U. S. R. 550, 592. Vide also Martin v. Martin, 22 Ala. B. 
 86.) Of course, if the first marriage was void, it is no impediment 
 to the second; and, unless the first was a valid marriage, the 
 parties may contract a second without procuring a judicial sentence 
 annulling the first. 
 
 The general rule is, that the validity or invalidity of a marriage 
 is to be determined by the lex loci contractus. Thus, it has been 
 held in the State of New York, that where a former marriage has 
 been dissolved on account of the adultery of the husband, he can- 
 not contract a valid second marriage during the life of the former 
 wife. To bring a case within the prohibition of the statute, and 
 render the second marriage void, it is enough that there was a 
 prior marriage, and that the former wife was living at the time of 
 the second marriage. It is not material that the former marriage 
 should have taken place within the state. {Smith v. Woodworth, 44 
 Barh. B. 198.) 
 
 CHAPTEE XL. 
 
 PAETIES TO A MAEEIAGE — THET IffUST BE WILLING TO CONTRACT 
 
 DUEESS FEAUD — EEEOE — PAETIES MUST CONTEACT IN PEOPEE FOEM 
 
 — VOID AND VOIDABLE MAEEIAGES — IMPEEFEOT MAEEIAGE — HOW 
 NULLIFIED — EFFECT OF THE SENTENCE OF NULLITY. 
 
 § 644. ThsI parties to a marriage must not only be c^le to con- 
 tract, but they must be willing to join iu the matrimonial union. 
 If the free and voluntary assent' of the parties in contracts pertain- 
 ing to the ordinary business concerns of life, is important and 
 
846 LAW OF COVEBTUHE. 
 
 requisite to bind the parties, much more is it in a contract of 
 marriage, which involves, to the greatest extent, all that is sacred 
 and enjoyable in social life. The parties must be perfectly free to 
 give their consent to the nuptials, or the contract will not be bind- 
 ing, and the marriage may be avoided. Upon this principle, a mar- 
 riage contracted by a party under compulsion is void, because 
 consent is the essence of this, as it is of all contracts, and when 
 there is compulsion there is no consent. Besides, such an agree- 
 ment would be founded in wrong, and would be void on that 
 account. The violence was itself an injury to ^e party compelled 
 to give his assent, and the party on whose behalf the violence was 
 used cannot be permitted to establish a right on his own wrong 
 doing. The consent of the party brought about by force, menace 
 or duress, is a consent only in form, and is of no legal effect. This 
 is the rule as applied to all contracts, and it finds no exception in 
 marriage ; and the same principles which govern the question of 
 duress in other contracts, hold good in their application to mar- 
 riage. It is not, however, all cases of compulsion or coercion 
 which will invalidate the marriage contract, it must amount to 
 durities, or duress, and this may be either actual violence, or 
 threat. As civilization has advanced, the law has tended much 
 more strongly than it formerly did to ovei-throw every thing which 
 is built upon violence or threats producing fear. In the time of 
 C^sar, it was said that a man could not avoid his act on the 
 ground that it was procured by the fear of battery, burning his 
 hoiise, taking away or destroying his goods, or the like ; for the 
 reason that he may have satisfaction by the recovery of damages. 
 But this is not the rule at the present day, and especially not in a 
 case of marriage, when the injured party cannot be compensated in 
 damages for the wrong. There can be no doubt that a contract of 
 marriage procured by threat, and the fear of personal injmy, or the 
 destruction of property, may be avoided on the ground of duress. 
 There is nothing in such a case but the form of a contract with- 
 out the substance. It wants the voluntary assent of the party to 
 be bound by it, and no good reason can be assigned for upholding 
 it. So cautiously does the law watch over all contracts that it will 
 not permit any to be binding but such as are made by persons per- 
 fectly free, and at full liberty to make or refuse such contracts, and 
 that not only with respect to their persons, but in regard to their 
 goods and chattels, also. Contracts to be binding must not be 
 
THE INSTITUTION OF MARRIAGE. 847 
 
 made under any restraint or fear of their persons, otherwise they 
 are void. ( Vide Sasputas v. Jennings, 1 Bay^s B. 470. Collins 
 V. Westlury, 2 ih. 211. Nelson v. Suddarth^ 1 lien, dh Munf. H. 
 350. Foshay v. Fergerson, 5 JSilVs B. 154, 158.) This is the rule 
 and the reasoning in ordinary business transactions, and it applies 
 with equal or more force in the momentous transaction of marriage. 
 § 645. But the rule will be better illustrated by a reference to 
 cases directly in point \ipon the question of marriage. The maxim 
 of the civil law, nuptias non concubitas sed consensus faoit, has been 
 regarded as a good definition of marriage, and mutual consent makes 
 the marriage before consummation, but the consent must be full and 
 free, or the marriage is not valid. In deciding iipon the question 
 of the sufficiency of the assent to the marriage, the court will look 
 principally to the facts which transpired at the espousals ; and it 
 has been held that the circumstance of a party being under arrest 
 as ihe putative father of a bastard child, is not enough to avoid the 
 contract on the ground of duress. This decision was pronounced 
 with respect to a case where the husband was in the custody of an 
 officer on a proceeding instituted against him as the putative father 
 of a bastard child of which the wife was pregnant, and while he 
 was under the arrest, the nuptials were celebrated ; but the evi- 
 dence was very satisfactory that the parties went before the officer 
 who married them expressly for the purpose of solemnizing their 
 matrimonial contract, and yielded their several consent to it. It 
 was, of course understood that the necessary consequence of the 
 marriage was a discharge from the arrest and from any liability in 
 the proceeding, but that was no reason why any force, fear or 
 threats in the transaction should be inferred. The court felt bound 
 to confine their attention almost exclusively to-the facts attending 
 the espousals before the magisti-ate, and in doing so they could not 
 say that the mere circumstance that the husband had involved 
 hiniself in difficulty with the authorities by his previous connec- 
 tion with the proposed wife, was enough to show that he did not 
 yield his full and free assent to the marriage solemnized, though 
 he may have taken the step with reluctance. The court therefore 
 held that the marriage was valid. {Jackson v. Winne, 1 Wend. B. 
 47.) But if, in this case, it had clearly appeared that the husband 
 submitted to the marriage by reason of threats of injury to his 
 person, or character or property, made at the time of the espousals,, 
 the result would have been different. Mr. Bishop, in his treatise 
 
848 LAW OF COVERTURE. 
 
 on marriage and divorce, gives the substance of a case decided by 
 one of the judges of the silpreme judicial court of Massachusetts, 
 involving. this question; wherein it appeared thalt the husband had 
 been unlawfully arrested by a deputy sheriff at the instance of two 
 selectmen, and taken to the oflBce of a magistralte, where he was 
 charged with being the father of a bastard child born of the pro- 
 posed wife, and the selectmen threatened to shut him up in jail 
 and imprison him, if he refused to inarry the woman who was 
 then present, or pay theifli five hundred dollars, all which threats 
 were made while he was held in close custody by the selectmen 
 and the deputy sheriff, and he, being unable to pay the money, 
 and through fear of being deprived of his liberty, and while sur- 
 rounded by the depiity sheriff and his associates, consented to 
 marry the woman, and while still continuing in the custody of 
 the deputy sheriff, the marriage ceremony was performed, where- 
 upon he immediately left the woman and never had connection 
 with her ; it appearing also as a fact that the officer at the time of 
 making the arrest; had no warrant or precept, nor had he any 
 warrant during all the time the man was in his official custody ; 
 the court declared the marriage null and void for duress and ille- 
 gal restraint. {Jones v. Smith, 1 Bishop on Marriage and Divorcd, 
 § 213.) Stress was however laid in this case upon the fact that 
 the arrest and restraint were without process and illegal. 
 
 And in another case, decided by the supreme judicial court of 
 Massachusetts, before the full bench, the rule was laid down that a 
 promise of marriage made while the party is under an arrest which 
 is illegal, is void ; and, further, that not only is a direct promise 
 void, if made under duress and an illegaV arrest, but so is an admis- 
 sion thus made of a former promise, the court saying : " There is 
 no distinction between a promise to marry and an acknowledgment 
 that such promise had been made upon some former occasion, upon 
 which the rejection of the former and the admissibility of the latter 
 can be justified and defended. The general principle is that 
 neither acts done nor declarations or admissions made by a party 
 under duress shall be allowed, against his objection, to operate 
 injuriously to him. He is not bound by a contract, nor held 
 responsible for concessions or acknowledgments made in such an 
 exigency. He may avoid his deed, when so executed, if he will; 
 and the law will reject the evidence of his confessions, if objected 
 to, when they were induced by means of, or uttered while he was 
 
TSE INSTITUTION OF MARRIAGE. 849 
 
 subject to, sucli unlawful restraint. It is the presumption, sanc- 
 tioned by the law, th^t confessions made under such circumstances 
 are the- result of fear, apprehension, and of the consequences to 
 result from the force, violence, or compulsion applied. And be- 
 cause it is impossible to measure the extent of the controlling 
 influence which such causes may exert, and, of course, impossible 
 to determine whether any or what reliance ought to be placed^ or 
 what effect should justly be given to acts done, or to declarations 
 made by a party held in such condition, it has Come to be an 
 established principle of law that the evidence of whatever has 
 transpired while a party is under duress shall, upon his objection 
 as to the party by whom it was occasioned, be altogether disal- 
 lowed and rejected." {Tilley v. Damon, 11 Citsh. B. 247, 251 ' 
 And vide also Regina v. Baldey, 5 Cox^s B. 523. S. O. 2 Ben- 
 ison's Crown Cases, 430.) 
 
 The case of Tilley v. Damon was an action for breach' of promise 
 of marriage, but the principles stated apply equally to the mar- 
 riage, where the same has never been subsequently ,ratified, or the 
 duress waived. 
 
 In England a marriage, though celebrated in fade eaclesice, was 
 formerly held to be void by judges of the common law, before sen- 
 tence of nullity, if the wife were under duress, though such a 
 marriage is now held binding until its nullity is declared by a com- 
 petent court. And, in a very early case, where an heiress had 
 consented to marriage, but the consent was caused by precedent 
 menaces, the defendant had judgment to die. Hale, treating of the 
 case, says the reason she gave evidence was, first, she was rescued, 
 flagrante crimine, before she was defiled ; second, it was a forced 
 marriage, and so no marriage de jure; third*, no cohabitation ; 
 fourth, there was concurrent evidence to prove the whole fact, and 
 she was a good witness, being but a wife de facto. {Bex v. Brown, 
 3 Bib. B. 193.) It is difficult to conceive of a reason why a mar- 
 riage, confessedly the most important of all contracts, should be 
 held valid when obtained by duress, while all other contracts are 
 not so ; and, whatever difference of opinion formerly existed upon 
 the subject, the invalidity of such a marriage is now universally- 
 conceded. 
 
 § 646. Another instance of marriage under a constraint of the 
 will, whereupon the consent which in form passes is no consent in 
 fact, is where the party is induced to join in the marriage by a 
 10? 
 
850 LAW OF COVERTURE. 
 
 fraud. It is not, however, every misrepresentation or deception 
 that will affect the validity of the marriage. The law presumes 
 that a person uses due caution in a matter in which his happiness 
 for life is so materially involved as in that of matrimony, and it 
 therefore makes no provision for the relief of a blind credulity, 
 however it may have been produced. {^Wakefield v. Mackay, 1 
 Phillim. B. 134) 
 
 The phrase fraudulent contract, in common parlance, admits of 
 great latitude of construction, and will include all those deceptive 
 acts to which the sexes too frequently have recourse, with a view 
 to obtain what they consider an advantageous connection; by 
 setting off their persons, characters, tempers, circumstances and 
 connections in a too favorable light ; or by professions of ardent 
 affection, which they either may not feel, or not in a degree equal 
 to what they profess. These acts, though they meet with various 
 degrees of indulgence, according to circumstances, are still incon- 
 sistent with truth and sincerity ; and may be, and often are, pro- 
 ductive of serious mischief; they partake of the nature of fraud, 
 and a marriage grounded on them is, in a sense, a fraudulent con- 
 tract. If the phrase be taken in this large sense, it would degrade 
 the marriage contract, which in its original design and institution 
 was to continue indissoluble during the joint lives of the con-elates, 
 and which is a main pillar on which society itself is founded, to a 
 level with the most trifling bargains. This aspect is not tolerated 
 by the courts. ( Vide Benton v. Benton, 1 Bay's H. 111.) 
 
 But the authorities are clear that where there is actual fraud in 
 the transaction, a marriage, like all other contracts, may be 
 avoided by the party injured. In a case in the late court of chan- 
 cery of the State of New York, it was expressly decided that a 
 marriage procured by abduction, terror or fraud would be annulled 
 by the court. This was before there was any statute there declaring 
 such a marriage invalid. The chancellor found that the marriage 
 in the case was procured by fraud, saying that the woman had 
 been entrapped into the marriage with the man by the artifices 
 which he employed ; and though she gave an apparent consent at 
 the moment of the celebration, yet it fully appeared that this con- 
 sent was feigned, and that it was the effect not of her choice, but 
 of her terror. The complainant had never consented freely to 
 become the wife of the defendant, and had never cohabited with 
 him ; , and the marriage was declared to be a foul fraud practiced 
 
TSM INSTITUTION OF MARRIAGE. 851 
 
 upon her by the defendant, and on that ground was adjudged to 
 he utterly null and dissolved. {Ferlat v. Gojon, Hop. Ch. i?. 478.) 
 In the argument of the case of Ferlat v. Gojon, on behalf of tlie 
 complainant, the late Mr. Sampson, of the city of New York, 
 most forcibly and eloquently remarked: "Here is a contract 
 obtained by fraudulent contrivance, by suppressions of the truth 
 and suggestions of falsehood, by duress and by surprise, entered 
 into by a girl of nineteen, in a moment of great agitation and 
 apprehended danger, no matter whether real or imaginary; the 
 consequences of which must blast her maiden honor, endanger her 
 virtue, and bring her tender parent who bore her, with anguish to 
 the grave. And is there no relief, no helping hand, no mercy or 
 justice in the law ? Are we yet, with all our boasted institutions, 
 in that state of uncivilized barbarity; with all our subtle and 
 refined distinction, with all our infinity of books and cases, can we 
 find no remedy for such an evil? Must fraud and conspiracy 
 triumph with impunity, and youth and innocence droop and decay, 
 like a tender blossom on a wounded stem, and no one be found to 
 bind it up or shelter it ? Is it because this contract is so holy, and 
 beyond all others so sacred, that our laws are too unholy and pro- 
 fane to meddle with it ? Must our judges, for very reverence, look 
 on, and shutting their ears to the cries of religion and humanity, 
 turn their backs upon the desolating ruin ? Must the poor victim 
 of iniquity be doomed to sufler all the consequences of an ill- 
 omened and barren union ; be bound forever to honor and obey one 
 whom she cannot honor and obey, because we have no spiritual 
 court, no doctors' commons, no doctors or proctors ? Must this be 
 the answer of the only earthly judge to whom we can appeal? 
 Address your complaint to the great Judge of judges ; no doubt 
 your prayers will find grace in heaven ; but our law allows you 
 nothing but to weep and to despair ; for we cannot excommunicate, 
 and there is no other remedy." The difficulty was not in the fact 
 that the marriage was not invalid, but as. to where was the proper 
 forum to seek the remedy. Now, however, the statute provides 
 that in such a case a sentence of nullity may be declared by the 
 supreme court. Indeed, that part of the ancient common law of 
 England which rendered a marriage absolutely void, where either 
 of the parties had not the legal capacity to contract matrimony, or 
 where there was in fact no legal consent by one of the parties, the 
 same having been obtained by force and fraud, and never afterward 
 
852 LAW OF COfTERTURE. 
 
 voluntarily acquiesced in, was undoubtedly brought to this country 
 by our ancestors, and formed a part -of the colonial law. In such 
 cases, for all the substantial purposes of justice, the courts of com- 
 mon law and of equity in England had concurrent jurisdiction 
 with the ecclesiastical courts. Although the other courts yielded 
 to the courts Christian the exclusive jurisdiction to declare the 
 nullity of the marriage by a direct proceeding between the parties, 
 it was rather on the ground of convenience than from a want of 
 ' power in the court of chancery to grant similar relief to the par- 
 ties. The court of chancery and courts of common law always 
 exercised the power to determine the marriage absolutely void, 
 whenever the question came before them in any collateral proceed- 
 ing. {Botsworth V. JSotsworth, Styles' R. 10. Middleson v. Wogan, 
 Cro. EUz. 858.) In those cases the sentence of the ecclesiastical 
 -courts does not dissolve the marriage, inasmuch as no lawful mar- 
 riage can have taken place. It merely declares the fact of marriage 
 to be a nullity. The marriage act declares marriages in such cases 
 to be ifpso facto void. The sentence of the ecclesiastical court is 
 declaratory only ; it does not make them void. {JSowzer v. liich- 
 etts, 1 Sagg. Con. R. 214.) In such cases, where the rights of the 
 parties existed independent of any peculiar remedies which were 
 intrusted to the exclusive cognizance of a particular court, it was 
 competent for the superior courts of the colony to administer such 
 relief as was consistent with their ordinary forms of proceedings 
 in other cases, and such as was proper under the circumstances of 
 each case. Jurisdiction in such cases is usually conferred upon 
 certain specific courts by statute in this country; but in the 
 absence of any statutory provision, the ordinary courts of equity 
 have the power to grants the proper relief. {Perry v. Perry, 2 
 PaAge's Ch. R. 501,^504, 505.) 
 
 § 647. It may be laid down as a general proposition that the law 
 regards a marriage brought about by fraud as invalid if the fraud 
 is such as would vitiate any other contract, unless the marriage has 
 been consummated by copulation. ( Vide Hartford v. Morris, 1 
 JSagg. Con. R. 423. Portsmouth v. Portsmouth, 1 Sagg. Eg. R. 
 355. Jolly V. McGregor, 3 Wilson db Shawns R. 85. Clarh v. 
 Meld, 13 Vt. R. 460. Eeyes v. R^eyes, 2 Fost. [if. H.] R. 553. 
 Robertson v. Cole, 12 Texas R. 356. Hull v. Hull, 5 Eng. L. and 
 Eg. R. 589. 8. C. 15 Jur. 710.) In an early case before the late 
 court of chancery of New York, the chancellor laid down the rule 
 
TEE INSTITUTION OF MARRIAGE. 853 
 
 that, independent of statutory provision, the power of that court 
 to vacate contracts obtained by fraud is an unquestioned branch of 
 its jurisdiction ; a gross fraud in obtaining a marriage falls within 
 Buch jurisdiction, and the court adjudged such a marriage void, 
 {Buriis v. liurtis, Hop. Oh. H. 55Y, 568.) 
 
 In a more recent case in the present supreme court of New York, 
 where it appeared that the consent of a minor female to a marriage 
 contract was obtained by fraud, through a plot of the pretended 
 husband, in which the priest shared pretty largely, it was held that • 
 the-marriage was a nullity, and a disgrace to the men concerned 4n 
 it. The consent was obtained by inflaming the brain and stupefy- 
 ing the senses of the young woman, in which state the nuptials 
 were celebrated, but she immediately refused, and ever after 
 refused, to cohabit with her pretended husband, or to acknowledge 
 any claims on his part in that or any other character. {Sloan v. 
 Kane, 10 Sow. Pr. R. 66.) 
 
 And in a case in the late court of chancery of the State of New 
 York, where the parties were white persons, and the complainant 
 was charged by the oath of the defendant as the putative father of 
 her bastard child, and the complainant thereupon, believing the 
 child to be his, married her to obtain his discharge from the pro- 
 ceedings against him under the bastardy act, and he subsequently 
 ascertained that the child was a mulatto, and that the defendant 
 knew that fact at the time she swore it to be his, she then having 
 been delivered and saw the child ; the court held that the com- 
 plainant was entitled to a decree declaring the marriage contract 
 void, on the ground that his consent was obtained by fraud. How- 
 ever, if a party kaowing that he cannot be the father of a bastard 
 child, is induced to marry the mother to avoid a prosecution, it is 
 no ground for annulling the marriage contract on the ground of 
 fraud, although he should afterward be able to establish the fact 
 that the child was not his ; and although it is legally impossible 
 that a white man should have a mulatto child by a white woman, 
 yet if the former, before the birth of the child, believing it to be 
 his child, married the mother on the ground of such belief, it seems 
 he cannot have a decree annulling the marriage, notwithstanding 
 her concealment of the fact from him that she had received the 
 embraces of a negro about the time she was receiving his. The 
 material element of fraud would not then be so patent. But if 
 the mother Tmew that her child was black at the time she charged 
 
854 ZAW OF COVERTnBE.' 
 
 the man ■with it, no person could believe it possible she did not 
 intend to commit a fraud upon him, by charging him as the father 
 of the child, ■when she had the most satisfactory reasons for belicT- 
 ing it could not be his, but that it -was in fact the child of a negro, 
 with whom she must also have had connection. {Scott v. Shufeldt, 
 6 Paige^s Ch. E. 43.) This case of Scott v. Shufeldt, illustrates 
 very lucidly the principle upon ■which a marriage ■will be regarded 
 as a nullity on the ground of fraud, and -flit; Tules by -which the 
 courts are governed in the decision of such cases. ( Vide also 
 Hoffman v. Soffman, 30 Penn. B. 417. Ba/rent v. Kimimel, 17 
 Beg. Int. 100.) In a later case in the supreme court of Michigan, 
 ■where the bill was filed by the husband several years after the mar- 
 riage to have it annulled on the ground of fraud ; the alleged fraud 
 consisting in the -woman passing herself ofi" as chaste -when she -was 
 not, and the bill alleging that the facts had just come to the com- 
 plainant's knowledge ; several children had been born to the parties, 
 and ■were stiU living, and no complaint was made of the ■wif&'s 
 conduct after marriage ; the court very properly dismissed the bill 
 as unprecedented and shameful. {Leamtt v. Lea/vitt, 5 Am. Baw 
 Beg. [iT. S.'\ 252. S. C. 13 Mich. 452.) 
 
 § 648. It is generally necessary that one of the parties is impli- 
 cated in order to nullify a marriage on the ground of fraud ; the 
 conspiracy even of third persons will not in general have the effect 
 to invalidate the marriage when the party to the marriage was not 
 one of the conspirators. UpOn this subject. Lord Stowell said : 
 " I wiU not lay it do^wn that in no possible case can a marriage be 
 set aside on the ground of having been effected by conspiracy. 
 Suppose three or iova persons were to combine to effect such a 
 purpose by intoxicating another and marrying him in that perverted 
 state of mind, this court would not hesitate to annul a marriage on 
 clear proof of such a cause connected with such an effect. Not 
 many cases occur to me in which the co-operation of other persons 
 to produce a marriage can be considered, if the party was not in a 
 state of disability, natural or artificial, which created a want of 
 reason or volition, amounting to an incapacity to contract." {Sul- 
 Uvan V. Sullivan, 2 Hogg. Oon. B. 238, 246.) 
 
 In a recent case in the State of Yermont, the court declared a 
 marriage void on the ground principally, that it was effected 
 through the conspiracy of third persons. The court said : " "We 
 are satisfied that the form of marriage was brought about between 
 
TBE INSTITUTION OF MARRIAGE. 855 
 
 these parties, chiefly through the instrumentality of certain inhab- 
 itants of Moretown, who had charge of maintaining the town's 
 poor, for the purpose of changing the settlement of the petitioner, 
 and to effect this they promised the husband $100, and paid him 
 $60 ; that his purpose was not to contract in good faith, a marriage, 
 but to get money and revenge an imaginary grievance against Mid- 
 dlesex, and abandon the petitioner, which he did in about three 
 weeks. She is a cripple, feeble both in body and mind, and was 
 wholly at the disposal of those who had her in charge. It is diffi- 
 cult to lay down any general rule in regard to the precise character 
 of fraud which will render null a marriage contract.- But we are 
 reluctant to say that such a transaction as the present is to receive 
 the countenance of the courts of the state. It would, we think, 
 be of evil example. The transaction possesses no one feature of a 
 marriage contract but the ceremony. The cohabitation, so long as 
 it continued, seems to have been, on the part of the petitioner, the 
 result of the general imposition ; and on the part of the defendant 
 a part of the attempted villainy. A decree of nullity, if it have 
 no other good effect (and, as to the parties, it seems to be of no 
 great importance, both being virtual paupers), will deprive the 
 conspirators of the wages of their iniquity, and be of good example 
 to others, "We are not satisfied there was any such duress in the 
 case as to justify a decree of nullity. But one of the chief actors 
 testifies that he told the petitioner the laws were so altered that the 
 town authority said they had a right to marry paupers to whom 
 they saw fit ; and the petitioner testifies that she believed it, and 
 supposed that if she refused to submit to the marriage she should 
 be left to starve. It is impossible to know how much such badinage 
 might have influenced so simple a creature in the outset ; but we 
 are not satisfied she finally acted under the delusion, and still she 
 might have done so. Petition granted." {Barnes v. Wyeihe, 28 
 Vt. li. 41.) 
 
 This was an extreme case, and it is quite probable that the 
 apparent duress and want of mental capacity in the petitioner had 
 something to do in producing the decision of the court. Usually, 
 if the party is capable of consenting to the marriage, and has con- 
 sented, the law does not ask how the consent was induced. His 
 own consent, however procured, is his own act, and he must impute 
 all the consequences resulting from it either to himself or to others 
 whose happiness he ought to have consulted, to his own responsi- 
 
856 
 
 LAW OF COVERTURE. 
 
 bility for that consent. The law looks no further back, provided 
 always that the party has not been wantonly deceived. ( Vide 
 SuUwan v. Sullivan, 3 Sagg. Con. B. 238, 247. Eex v. Min- 
 shuU, 1 JVev. <& Manning's R. 277.) 
 
 "When one of the parties to the marriage supplies a third person 
 with the means of perpetrating the fraud, or when he is in any 
 way intentionally instrumental in the fraud practiced by a third 
 person, by which the marriage is effected, he is himself responsible 
 for the fraud, and the marriage may be avoided on that ground. 
 When a person knowingly takes the benefit of the fraudulent acts 
 of another, he adopts the act including the fraud. ( Yide Mason v. 
 Crosby, 1 Woodhv/ry & Minors R. 342. Fisher v. Boody, 1 Curt. 
 C. C. 206. Wilson v. Green, 25 Vt. R. 450.) 
 
 § 649. Sometimes the question of annulling a marriage on the 
 ground of fraud is regulated by statute. Thus, in the State of New 
 York, the statute provides that a marriage may be annulled on the 
 ground that the consent of one of the parties was obtained by force 
 or fraud, during the life-time of the parties, or one of them, on 
 the application of the party whose consent was so obtained, or 
 of the parent or guardian of such party, or of some relative 
 intrusted to contest the validity of the marriage. (2 Rev. Stat, 
 part 2, ch.S,Ut.l,%Z(i. 2 Stat. at La/rge, 149.) Under this statute 
 it has been held that if the defendant in the action by the husband 
 to annul a marriage on the ground of fraud, is an idiot, the com- 
 plainant must procure the appointment of a guardian ad Utem to 
 appear and defend the suit for the wife ; and when no guardian 
 ad Utem is appointed for the defendant in such a case, the com- 
 plainant will derive no benefit from the tacit admission of the fraud 
 charged in the bill, arising from the wife's suffering such bill to be 
 taken as confessed against her. A court of equity will not annul 
 a marriage contract as having been fraudulent upon the mere 
 admission by the defendant of the fact charged in the bill. 
 
 The further point was settled in the case, that a suit to annul 
 such a marriage must be brought within six years after the dis- 
 covery, by the aggrieved party, of the facts constituting the iraud ; 
 that the meaning of the provision of the statute in relation to suits 
 of that nature, which declares that a marriage may be annulled on 
 account of force or fraud, during the Ufe-time of the parties, or one 
 of them, is not that the suit can be brought at any distance of 
 time after the right to institute it occurred, provided either of the 
 
THE INSTITUTION- OF MARRIAGE. 857 
 
 parties is still living, but that the suit can only be brought during 
 the life-time of the parties, or during the life of one of them, and 
 not afterward. {Montgomery v. Montgomery, 3 Barb. Ch. H. 132.) 
 The common law makes the marriage a nullity, which is produced 
 by the perpetration of a fraud upon one of the parties by the other ; 
 but the practice in procuring a judicial sentence declaring the 
 nullity of the marriage is usually regulated by statute. 
 
 § 650. Upon this subject, Mr. Fraser, in his excellent treatise on 
 the domestic relations, observes : " Fraud, in the constitution of the 
 contract of marriage, renders it void. Force imTplies physical con- 
 straint of the will; frand, some overruling moral necessity, whereby ' 
 a certain state of the will is brought about which would not have 
 so been without deceit. In both cases the result is the same, 
 although the constraint employed operates differently. And as to 
 both, morality and law visit the deed with the same condemnation." 
 And after citing several cases where the fraud was practiced upon 
 parties who were certainly capable of marriage, but who, from 
 their youth, were peculiarly liable to be deceived, and the nuptials 
 were nullified, he adds : ■ " There are, however, cases where, with 
 regard to persons of mature age, fraud in obtaining the consent 
 to the contract has been held sufficient to annul the pretended 
 marriage. The cases in which this has been sustained are of this 
 nature : The woman gets the man into some retired place, for the 
 purpose of carnal connection, and then, before this is allowed to 
 proceed, she obtains from him a promise of marriage, and copula 
 immediately follows. She has, at the same time, two or three 
 witnesses stationed so as to hear the promise, but concealed from 
 the man. The consent here has been obtained in cestto amoris, 
 without any intention on his part, she well knowing it, of entering 
 into marriage, and where, if he had known that there were wit- 
 nesses to the transaction, he would not have made the. promise. 
 The marriage, therefore, being brought about by the fraudulent 
 contrivance of the woman, the court has refused in such cases to 
 sustain." (1 Iras. Bom. Bel. 234^237.) 
 
 Upon the same subject Mr. Bishop says : " In all cases where 
 the party entering into the form of marriage gives no real consent, 
 because the will is overpowered by the arts of cunning, or the 
 force of menace, or by any other means, the. marriage remains a 
 nullity until, as it sometimes happens, the will, in a disenthralled 
 condition, affirms the marriage. Therefore it has been held that, 
 108 
 
858 LAW OF COVERTURE. 
 
 'if one knowing the law entrap another ignorant of it into a cere- 
 mony, valid in form, before a magistrate or minister of the gospel. 
 Tinder the representation of its not being binding, which repre- 
 sentation is believed, and if the party deceived do not intend it 
 shall be followed by cohabitation without a further public cere- 
 mony, and it is not so followed, the marriage is void. And the 
 remark has been made that there may be extraordinary eases in 
 which such marriage would be invalid after consummation." (1 
 Bishop .on Marriage and Divorce, § 205. Vide also Mount 
 EoUey v. Andover, 11 Vt. B. 226. Clark v. Field, 13 ih. 460. 
 Robertson v. Cowdry, 2 West. Law Jour. 191.) 
 
 If a person of a bad character palms himself off as a person 
 of good character by a false name, known by reputation to the per- 
 son to whom he offers himself, and the party marries him under 
 that deception, the marriage is a nullity. The fact, however, of 
 the assumed name does not vitiate the marriage, provided there is 
 no deception with respect to the real identity of the person bearing 
 such assumed name. {Bex v. Burton-wpon-Trent, 3 Moore <Ss 
 Scott's B. 537. Heffer v. Eeffer, II. 265. CUwes v. Clowes, 3 
 Curt. Eg. B. 185, 191.) When one person is actually substituted 
 for another, in case of marriage. Chancellor Kent says : " This 
 would be a palpable fraud, going to the substance of the contract, 
 and it would be diflBcult to state a case in which error, simply, and 
 without any other ingredient as to the parties, or one of them in 
 respect to the other, would vitiate the contract. It is well under- 
 stood that error, and even disingenuous representation, ih respect 
 to the qualities of one of the contracting parties, as to his con- 
 dition, rank, fortune, manners and character would be insuffi- 
 cient. The law makes no provision for the relief of a blind 
 credulity, however it may have been produced." (2 Eenfs Com- 
 mentaries, 77.) 
 
 § 651. In all these cases of duress, fraud, or mistake in respect 
 to the marriage of parties, it may be affirmed as a general rule that 
 the marriage is valid so long as it is acquiesced in by both parties. 
 Again, the guilty party cannot procure a sentence of nullity on his 
 own personal application, and the injured party may ratify the 
 marriage by a free and voluntary cohabitation after the error or 
 fraud is discovered, or the duress is at an end. {State v. Murphy, 
 6 Ala. B. 765. Soott v. Schufeldt, 5 Paige's B. 43. 1 Bishop on 
 Marriage and Divorce, § 214.) 
 
THE INSTITUTION OF MARRIAGE. 859 
 
 This matter is frequently regulated by statute. For example, 
 in the State of New York it is j)rovided that " no marriage shall be 
 annulled on the ground of force or fraud if it shall appear that at 
 any time before the commenceiaent of the suit there was a volun- 
 tary cohabitation of the parties as husband and wife, nor on the 
 ground of fraud where there was such voluntary cohabitation with 
 full knowledge of the facts constituting the fraud." (2 JSev. Stat. 
 paH 2, ch. 8, tit. 1, § 31. 2 Stat, at Large, 149.) The rule with 
 respect to all contracts procured by fraud, error, or duress^ is, that 
 the injured party may waive the wrong and ratify the contract, 
 after which it is too late to repudiate it, or seek to nullify it. 
 {Vide Morris v. Morris, Wright's S. 630. Miller's appeal, 30 
 Penn. B. 478, Gilmer v. Ware, 19 Ala. B. 252. Thompson v. 
 Lee, 31 ib. 292. Gutswiller v. Laokman, 23 Mo. B. 168. Oallo- 
 way V. Holmes, 1 Doug. \Mich.\ B. 330.) 
 
 Where both parties are equally in the wrong, the law will never 
 lend its aid to either. The maxim in such a case is, in pari delicto 
 potior est conditio defenda/ntis, and it will apply as well in cases 
 of marriage as in other transactions. ( Westfall v. Jones 23 Barh. 
 B. 9. White v. Cr&w, 16 Geo. B. 416. Miller v. Marckle, 21 III. 
 B. 152. Pincleston v. Sevan, 3 Jones'' Eg. B. 494.) 
 
 § 652. Lastly, the parties must not only be able and willing to 
 contract matrimony, but all of the requirements of law respecting 
 the nuptials must be complied with. In other words, the parties 
 must actually contract themselves in due form of law, to make a 
 good and valid civil marriage. What observances are requisite in 
 the celebration of a marriage has been fully discussed in several 
 sections of a preceding chapter {ante, §§ 622-632), and it ia hardly 
 necessary to dwell upon the subject here. SuflBoe it to say, jthat in 
 no case can a marriage be avoided by reason of the non-compliance 
 of the parties with any given ceremony or form in its solemnization, 
 unless the statute makes the same a pre-requisite to a valid mar- 
 riage. In most of the states the marriage is held to be valid and 
 binding notwithstanding it is entered into with no rites or cere 
 monies. {Clarh v. ClarTc, 10 N. S. B. 383.) And a valid mar- 
 riage may exist without any formal solemnization. {Clayton v. 
 Wardell 4 N. T. B. 230.) At all events, a precise compliance 
 with aU the requirements of law is never deemed necessary to the 
 validity of the marriage ;, and in some important provisions it has 
 been held that a disregard of them might be punishable, but did 
 
860 
 
 LAW OF COVERTURE, 
 
 not vitiate the marriage. For example, by the statutes of Ifew 
 York, it is provided that marriages shall be solemnized only by 
 ministers of the gospel and certain specified civil magistrates, and 
 if the same is solemnized contrary to a certain provision of the 
 statute, the minister or magistrate officiating is deemed guilty of a 
 misdemeanor (2 Rev. Stat.pa/ri 2, ch. 8, tit. 1, §§ 8, 11, 12 j 2 Stat, 
 at Lcurge, 145, 146) ; and yet the courts hold that the marriage 
 may be valid without any solemnization at all. {Clayton v. Wardell, 
 4 If. Y. E. 230.) 
 
 Again, in the State of Massachusetts, the statute requires the 
 solemnization of marriages by ministers of the gospel and certain 
 magistrates, and they are prohibited, under a heavy penalty, from 
 ■solemnizing marriages of males under twenty-one years of age, or 
 of females under eighteen years of age, without the consent of 
 their parents or guardians ; and yet the courts in that state hold 
 that the effect of these and similar statutes is not to render such 
 marriages void, although the statute provisions have not been com- 
 plied with. The com'ts hold that such statutes are intended as 
 directory only upon ministers and magistrates, and to prevent, 
 as far as possible, by penalties on them, the solemnization of mar- 
 riages, when the prescribed conditions and formalities have not 
 been fulfilled. {Parian v. Servey, 1 Gray'^ R. 119.) In the lan- 
 guage of Parsons, Ch. J., "When a justice or minister shall 
 solemnize a marriage between parties who may lawfully marry, 
 although without the consent of the parents or guardians, such- 
 marriage would nnquestionably be lawful, although the officer 
 would incur the penalty for a breach of duty." {Milford v. Wor- 
 cester, Y Mass. R. 48, 54, 55.) 
 
 On the contrary, in Maine, where clergymen are authorized by 
 statute to solemnize marriages, if "a stated and ordained minister 
 of the gospel, duly appointed and confirmed for that purpose by 
 the governor and council, for the county in which he resides," it 
 was held that " a marriage solemnized by a minister at his own 
 house, neither of the parties residing in that town, was void, as 
 being against the express provisions of the statute, although not 
 expressly declared to be void by the statute." {lAgonia v. Baxter, 
 2 Oreenl. R. 102.) So, also, in the State of Tennessee, the supreme 
 court lias decided that " to constitute a valid marriage under the 
 statutes, two things are essentially necessary : first, a lawful and 
 proper authority for the solemnization of the marriage ; second, a 
 
THE INSTITUTION OF MARRIAQB. 861 
 
 solemnization of the marriage, and performance of tlie marriage 
 ceremony by a person duly qualified by the acts of assembly of 
 North Carolina and Tennessee, in force in the latter state. If 
 a marriage be celebrated, therefore, without the license prescribed 
 by these acts, or in its absence, without a lawful certificate of the 
 publication of the bans of marriage, it is illegal and void," as 
 being in contravention of a positive statute; the judge who 
 delivered the opinion of the court maintaining " that though there 
 are no prohibitory words in a statute, yet,^if the act is forbidden 
 under a penalty, a contract to do it is void." {Bashaw v. State of 
 Tennessee, 1 Yerg. E. 111. Vide also State v. Orisham, 2 ih. 589.) 
 
 But, as before hinted, the weight of authority is in favor of the 
 rule that in the absence of any provision of law declaring marriages 
 not celebrated in a prescribed manner, or between parties of certain 
 ages, absolutely void, all marriages regularly made according to 
 the common law, are valid and binding, although had in violation 
 of the specific regulations imposed by statute. This is the general 
 doctrine of the courts, both in this country and in England. {Par- 
 ton V. Hervey, 1 Gray's ^.119 Mil ford v. Worcester, 7 Mass. H. 
 48. Londonderry v. Chester, 2 iV. H. R. 268, Haritz v. Sealey, 6 
 Binn. R. 405. The King v. Birmingham, 15 Eng. C. L. R. 151. 
 Cutterell v. Sweetmam,, 1 Rohertson^s R. 304.) Of course, when civil 
 government has established regulations for the due celebration of 
 marriages, it is the duty as well as the interest of all the citizens to 
 conform to such regulations. A deviation from them may tend 
 to introduce fraud and surprise in the contract ; or by a celebration 
 without witnesses, the vilest seduction may be practiced under the 
 pretext of matrimony. Nevertheless, the marriage may be valid, 
 though solemnized without conforming to the provisions of the 
 statute requiring the publication of the bans, the previous consent- 
 of parents or guardians, and the like ; provided, that in all cases 
 that the actual consent of the parties to the contract must be 
 expressed in the presence of witnesses, and when required by the 
 statute, in the presence of a minister or magistrate, the law may 
 forbid a particular form or method of solemnization of the mar- 
 riage, and yet the parties may disregard it, and interchange with 
 each other their mutual consent in any other form, and they will 
 thereby be constituted husband and wife. 
 
 § 653. It must be understood that all irregular or unlawful mar- 
 riages are not absolutely void ; some may be valid and binding, 
 
862 LAW OF COVERTimE. 
 
 until repudiated by the parties, or actually nullified by the sentence 
 or decree of a court of competent jurisdiction ; while others are 
 null and void from the beginning. There is a great difference 
 between a void and voidable marriage, which it is important to 
 notice. A void marriage is at all times a nullity, and binds no 
 one, and is not valid for any legal purpose whatever ; it leaves the 
 parties to it in just the same sit\iation, to all intents and purposes, 
 as though there had been no pretended marriage at all. In such 
 cases, if the parties cohabit, they are adulterers and fornicators, and 
 their offspring, if they have any, are bastards. But a voidable 
 marriage is valid for all civil purposes, and binding upon the 
 parties so long as it is acted upon and recognized by them, and 
 until its nullity is declared by a competent tribunal ; and if the 
 marriage has not been dissolved by sentence or decree during 
 the joint lives of the parties, it will be too late to apply for its 
 avoidance, and consequently the survivor will be entitled to 
 curtesy, dower, and the other rights of a surviving husband or 
 wife. If the parties cohabit, their cohabitation, especially as to 
 those who are innocent, is proper and lawful, and their offspring, 
 if they have any, are respected as legitimate ; and when the mar- 
 riage is dissolved, the court usually decrees the custody of the issue 
 to the innocent parent, and makes a provision for their education 
 and maintenance out of the estate and property of the guilty party. 
 When a voidable marriage is set aside, it is rendered void ah initio, 
 with the exceptions sometimes in favor of the innocent party, and 
 the issue of the marriage. {Perry v. Perry, 2 Paige's Ch. B. 
 501. Aughtie v. Aughtie, 1 Phillim. P. 201. Penham v. 
 Badgly, 2 GiWs P. 622.) The difference between void and 
 voidable acts is so important that it lies at the foundation of the 
 rights of parties in all cases of marriage. The general rule is that 
 all canonical disabilities make the marriage voidable, unless a 
 statute otherwise direct, and not ipso facto void ; but civil disabili- 
 ties make the marriage void ai initio, not merely voidable. This 
 is then generally the test : if the disability is' canonical merely, the 
 marriage is voidaHe only; but if civil, it is absolutely void. {Elliot 
 V. Gurr, 2 Phillim. P. 16. Pex v. Wroxton, 4 Ba7'n. (& Ad. P. 640. 
 S. 0. 24 £kg. C. L. P. 131. Jagues v. The Pullic Administrator, 
 1 Brad. R. 499.) 
 
 § 654. The canonical impediments to marriage are consanguinity, 
 affinity, impotence and the like, and they render the marriage void- 
 
THE INSTITUTION OF MAREIAOE.] 863 
 
 able only. Thus, in a case where the widow claimed dower, and it 
 was urged against her demand that she was niece to her deceased 
 husband's first wife, the objection was overruled by the court, 
 because the marriage was not annulled during the husband's life. 
 {Bemington's case, Nay's B. 29.) And in another case, where 
 parties within the prohibited degrees had married, and the mar- 
 riage had not been declared void during the life of the wife, it was 
 held that the husband surviving was entitled to the administration 
 of the wife's effects. {Elliott v. Gurr, 2 Phillim. B. 16.) 
 
 The civil impediments to marriage are prior marriage, want of 
 age, idiocy, lunacy and the like, and these mate the contract void 
 ah initio. Those disabilities do not dissolve a contract already 
 made, but they render the parties incapable of contracting at all ; 
 they do not put asunder those who are joined together, but they 
 previously hinder th» junction, and if any persons under these 
 legal incapacities come together, it is a meretricious and not a 
 matrimonial union, and, therefore, no sentence of avoidance is 
 necessary. {Elliott v. Gurr, supra. Hemming v. Price, 12 Mod. 
 B. 432.) A sentence of divorce in such cases is only declaratory 
 that the marriage is dissolved, for it was absolutely void before, 
 and either of the parties might marry again, though the other was 
 living. {Ayliffe's Paregon, 229. Aughtie v. Aughtie, 1 Phillim. 
 B. 201.) This is the view that the law takes of the subject, but 
 strictly speaking a marriage entered into by a person under the 
 age of consent, or by a lunatic, cannot be said to be void, because 
 it may be ratified after the party becomes of full age, or sane, as 
 the case may be, without any new celebration of the nuptials; 
 simply a voluntary cohabitation of the parties after the disability 
 ceases is generally a ratification of the marriage, and makes it valid. 
 The same rule, as we have before seen, exists in the case of fear, 
 error, or fraud j cohabitation after the duress is removed, or the 
 error or fraud is discovered, makes the marriage good. 
 
 § 655. "With respect to the difference between void and voidable 
 marriages, a very able and learned judge of North Carolina has 
 said : " There is a distinction in the law between void and voidable 
 marriages, when even they were regularly solemnized. The latter, 
 which are sometimes called marriages de facto, are such as are con- 
 tracted between persons who have capacity to contract, but are 
 forbidden by law from contracting with each other ; as to which, 
 therefore, there was a jurisdiction in the spiritual courts to declare 
 
864 LAW OF COVERTURE. 
 
 the nullity of the marriage. But until the nullity was thus 
 declared, as an existing marriage it was recognized as valid both 
 in the canon and common law ; and as there can be no proceed- 
 ing in the ecclesiastical court against the parties after their death, 
 or that of one of them, that event virtually makes the marriage 
 good db initio to all intents, and the wife and husband may have 
 dower and curtesy, and the issue will be legitimate. . {Co. Litt, 32, 
 33.) But when the marriage is between persons one of whom has 
 no capacity to contract at all — as where there is a want of age or 
 understanding, or where a prior marriage is still subsisting — the 
 marriage is void absolutely and from the beginning, and may be 
 inquired into in any court." {GathingsY. Williams, 5 Ired. E. 487.) 
 
 And it was said in a Pennsylvania case by the court : " In like 
 manner do the books of common law resolve, in case of a divorce 
 a vinculo for impotency, after three years' trial and examination, 
 and sentence in the spiritual court for the perpetual impotency of 
 generation. As it was in Bury'a case (5 CoMs R. 98), who was so 
 divorced, but afterward married another wife, and had children 
 by her ; upon which it was urged that, the church being evidently 
 deceived as to his perpetual impotency, the divorce therefore was 
 null; and if so, that the second marriage was unlawful, and the 
 issue illegitimate. But the court resolved that, since there had 
 been a divorce for frigidity or impotence, it was clear that each 
 of them might law:fully marry again ; and though it should be 
 allowed that, the church appearing to have been deceived in the 
 foundation of their sentence, the second marriage was voidable, 
 yet till it should be dissolved it remained a marriage, and the issue 
 during the coverture lawful." 
 
 But it was said in a case of impotence disposed of in the Eng- 
 lish courts ; " If the parties should be divorced, and both should 
 have children by the second marriage, these second marriages must 
 be set aside, and the first marriage declared valid, for, where the 
 church appears to have been deceived, the sentence must be re- 
 voked." {Welde V. Welde, 2 Lee's R. 580, 586.) Upon this 
 doctrine Sir John Nicholl very justly exclaimed : " What a state 
 to place parties in ! This is something in the text law which I 
 cannot readily assent to belong to the law of England." {Norton 
 V. Seton, 3 PMllim. B. 147.) And certainly no such doctrine is 
 recognized in any of the American courts. But the common law 
 rule in respect to void and voidable marriages is sometimes modi 
 
THE INSTITUTION OF MARRIAGE. 86S 
 
 fied or chaBged by the statutes of the state, so that a marriage 
 Toidable only in one place may be absolutely void in another, and' 
 vice versa. 
 
 § 656. "With respect to the evidence proper and requisite to 
 establish the marriage of the parties, reference may be had to a pre- 
 vious section wherein the subject is partially treated. ( Vide § 382.) 
 It may be suggested, in addition, that marriage may be proved, ' 
 lilce any other fact, by direct proof from witnesses who were 
 present at the nuptials. But direct and positive evidence is neces- 
 sary only in cases of bigamy and charges of adultery. {Patterson 
 V. Gmnes, 6 How. U. 8. B. 550.) In all other cases marriage may 
 be proved by cohabitation as husband and wife, reputation, and 
 the like. The acts and declarations of a man and woman, and 
 other attending circumstances during their cohabitation together,, 
 being a part of the res gestae, are proper evidence to show the char- 
 acter of their intercourse, whether it was matrimonial or mere- 
 tricious. {Harman v. Harman, 16 III. B. 85. Henderson v. 
 Cargill, 31 Miss. R. 367. Ford v. Ford, A: Ala. R. 142. Tho-rn- 
 dell V. Morrison, 25 Pervn. It. 326. Kenyon v. Ashhcidge, 35 ib. 
 157. In the matter of Taylor, 9 Paige's Oh. R. 611. Rose v. 
 Clark, 8 *5. 574. Kohl v. Kraner, 7 B. Mon. R. 130. Jenkins v. 
 Bisiee, 1 Fdw. Ch. R. 377. Tilts v. Foster, Taylor's B. 121. And 
 vide JEoans v. Morgan, 2 Cromp. c& Jerv. R. 453.) But, although 
 the parties cohabit together, and, as regards society,- hold them- 
 selves out as husband and wife, and other facts indicative of 
 wedlock have been sworn to by witnesses, a court or jury may 
 find that the cohabitation was illicit, and that no vialid marriage 
 had taken place. {Robertson v. Crawford, 3 Bea/van's R. 102. 
 S. C. 43 Fng. Ch. R. 101. Blackburn v. Cranjiferds, 3 Wallaces 
 TJ. 8. R. 175.) 
 
 An oiEcial registry of marriages kept in a church by the clesrgy- 
 man ministering there, or in case no such registry is kept, a private 
 memorandum, in which the minister, in the ordinary course of his 
 business, has entered, or intended to enter, as it occurred, each 
 marriage celebrated by him, seems to be admissible on a question 
 whether such minister ever did or did not celebrate a particular 
 marriage. {Blackburn v. Crawferds, sv/pra.) 
 
 % 657. It should be observed more distinctly that there is a dif- 
 ference, when the question of marriage or no marriage arises ■ 
 between the husband and third persons, and when it arises 
 109 
 
866 LAW OP COVERTURE. 
 
 between the husband and the wife themselves. Much slighter 
 proof will render the husband responsible in the one case than the 
 other. Upon gounds of public policy, a man cannot hold himself 
 out to be that which he is not, without incurring all the responsi- 
 bilities of his falsehood, a single . admission of partnership or mar- 
 riage may establish a liability where an innocent third person is 
 concerned, and yet such an admission might not go very far to 
 establish a marriage in a case between husband and wife, or in a 
 case involving the legitimacy of the offspring of the parties. The 
 admissions of parties in cases of marriage, as in all others, come 
 within the class of direct proofs. If once established, they are of 
 great weight, especially when made under circumstances which are 
 against the interest, or may be turned to the disadvantage of the 
 party by w'hom they are made. Like other proof, they can only 
 be repelled by superior proof of the same nature, amounting to a 
 contradiction. 
 
 Again, it should be stated that the general and ordinary pre- 
 sumption of the law is in favor of innocence, in questions of mar- 
 riage and legitimacy, when children are concerned. Cohabitation 
 is presumed to be lawful until the contrary appears, and moreover, 
 in cases of conflicting presumptions on the subject of marriage and 
 legitimacy, that in favor of innocence must prevail. {PfiysicJc's 
 appeal, 4: Am. Law Reg. \_N. Si\ 418, 423, 424. Sensor v. Bower, 
 1 Penn. R. 450. Hill v. HilVs Admrs. 32 ih. 511. Vide also 
 Sta?T V. RecJc, 1 mU's B. 270.) 
 
 When there is no proof of actual marriage, it seems that cohab- 
 itation and reputation are necessary to ground a presumption of 
 marriage ; proof of cohabitation alone is not sufficient. Reputation 
 must also be proved, which consists of the speech of the people 
 who have an opportunity to know the parties, to be proved by 
 them. It seems further by the same case, that marriage is in law 
 a civil contract, not requiring any particular form of solemnization 
 before of&cers of church or state, but it must be evidenced by 
 words in the present tense, uttered for the purpose of establishing 
 the relation of husband and wife, and should be proved by the sig- 
 nature of the parties; or bj^witnesses present when it was made. 
 (Commonwealth v. Stump, T Am. Law Reg. [IST. S.] 61. S. C. 53 
 Penn. R.) 
 
 § 658. In regard to the effect of a sentence or decree nullifying a 
 voidable marriage, Mr. Bishop observes : " The doctrine is a broad 
 
SUBJECT OF mVOBCE. 867 
 
 one, that, when a marriage is set aside by a decree of nullity, 
 the parties are then considered as having never been married. The 
 children, for example, -vvho were before legitimate, become by force 
 of the decree illegitimate ; and the late husband is treated as hav- 
 ing never acquired any right to the property of the wife, though 
 the claims of third persons are to some extent protected." (1 Bish. 
 on Mar. cmd Div. % 11 8.) This delicate and important matter, how-^ 
 ever, is often the subject of express statutory enactment ; and not 
 unfrequently the rights and reputation of the innocent party and 
 the issue of the marriage, are preserved. Sometimes the effect of 
 the sentence of nullity in such cases is declared in the same pro- 
 vision which declares the condition of the parties after an absolute 
 divorce ; which will be referred to hereafter, when the subject of 
 divorce is considered. 
 
 CHAPTER XLI. 
 
 THE LAW OF DIVOECE — ^MEANING OF THE TEEM — HISTOEY OF THE EEGU- 
 LATIONS CONCEENING DIVOECE — PEESENT OPINIONS UPON THE SUBJECT 
 OF DIVOECE — ^THE POLICY FULLY VINDICATED. 
 
 § 659. DivoEOE, in the strict, popular sense, is a dissolution of 
 the matrimonial relation, for causes occurring subsequent to the 
 marriage ; but jurists, in treating the subject, usually include those 
 cases in which the marriage is void ah initio, for causes existing at 
 or before the celebration of the nuptials, and the sentence of the 
 court simply declares the contract a nullity. It will only be neces^ 
 sary here to consider the subject in the sense first indicated, from 
 the fact that the impediments to marriage by reason of impotence, 
 want of mental capacity, consanguinity, and other antecedent causes 
 which invalidate the relation, have been noticed in a previous 
 chapter. {Vide ante, ch. xxxix.) And again, the propriety of 
 calling a sentence of nullity of the marriage "relation a divorce is 
 very questionable. "The civil and canonical disabilities which 
 render the marriage contract void or voidable are grounds of separa- 
 tion for nullity of marriage, but not, correctly speaking, for a 
 dioorce." {Shelford's Mar. and Div. 365, Godol. Ab. 600.) 
 
°o° LAW OF COVERTURE. 
 
 There is a general concurrence of opinion throughout the civil- 
 ized world, thiat marriage is to be between one man and one woman, 
 and that ordinarily the relation cannot properly be dissolved until 
 a separation by death. In other words, it is generally considered 
 that marriage is an ordinance of God, and " what therefore God hath 
 joined together, no man should put asunder." According to the 
 opinion of some, the interests of society are best consulted by treat- 
 ing the institution as an indissoluble contract in all cases whatever ; 
 while to others this rule of policy has appeared far too severe, and 
 they have held that the welfare of society is best promoted by 
 separating the parties, when their happiness is destroyed, and the 
 legitimate ends of matrimony are wholly perverted. The regula- 
 tions of civilized society upon the subject, have generally been in 
 harmony with the latter view, and from the earliest ages of the 
 world, divorces have been granted for certain aggravated causes 
 occurring after the celebration of the marriage, and these causes 
 have been more or less in numher, according to the different views 
 of expediency which have been entertained. 
 
 § 660. Among the ancient Jews, who lived under the Mosaic 
 dispensation, it is generally supposed the husband was the sole 
 judge in the premises, and was permitted to divorce his wjfe at 
 his own pleasure. The rule was thus laid down : " When a man 
 hath taken a wife, and married her, and it come to pass that she 
 find no favor in his eyes, because he hath found some uncleanness 
 in her; then let him write her a bill of divorcement, and give it 
 in her hand, and send her out of his house. And when she is 
 departed out of his house, she may go and be another' man's wife." 
 {Deut. 24 : 1, 2.) But this arbitrary doctrine was repudiated by 
 Christ, who restricted the rule, and perhaps limited it to the single 
 case of adultery. When, the corrupt Pharisees came before him, 
 and rallied him concerning the Mosaic law, " he saith unto them, 
 Moses, because of the hardness of your hearts, suffered you to put 
 away your wives ; but from the beginning it was not so. And I 
 say unto you, whosoever shall put aWay his wife, except it be for 
 fornication, and shall marry another, committeth adultery; and 
 whoso marrieth her which is put away doth commit adulter}'." 
 {Matt. 19 : 8, 9.) Strictly rendered, fornication can only apply to 
 an offense "before mari'iage ; but, as antenuptial incontinence was 
 not intended to be put forward as a just cause of divorce, it is 
 altogether probable that the Saviour used the word fornication as 
 
JOIVORCE AMONG THE ATBENIANS. 869 
 
 synonymous with adultery^ or, in other words, Christ meant to 
 say that "no cause for separation can be good except adultery, or 
 such facts as had the nature, the rationern, of adultery ; such as 
 ■were like it, tended to it, or, in short, would finally defeat and 
 interrupt the destined end of this institution, as adultery actually 
 did." This is the view taken by some very sensible writers upon 
 the subject, and probably this interpretation of the language is tjie 
 true one. ( Vide Taylor's Elements of the Civil Zaw, 351.) The 
 Greek word rendered fornication is in many places used as a gen- 
 eral term, and in some it necessarily requires to be interpreted 
 adultery ; and, in this instance, Christ designed to say that who- 
 soever should put away his wife, except for unohasi/ity, which is ,a 
 violation of the marriage covenant, and destroys, as it were, the 
 very nature of. it, and should marry another, woman, would be 
 adjudged an adulterer, as he also would that should marry the 
 divorced woman. Whatever injustice there might be in the 
 divorce, it could not be adultery aga/inst the divorced woman if 
 the man and woman were riot put entirely upon a level in this 
 respect; so that, under the Christian dispetnsation, it, is as much 
 adultery for the husband to take another woman as for the wife to 
 take another man. But, according to either interpretation of the 
 passage, where it is lawful to put away the wife, it would seem to 
 be lawful to marry again. 
 
 § 661. The ancient Athenians allowed divorces with great lati- 
 tude, although the party applying for a divorce was obliged to 
 submit his case to the magistrate, and abide by his judgment, and 
 if the wife was the complainant she was required to appear in 
 person. Hepparete, the prudent and affectiona-te wife of the great 
 Alcibiades, was forced to quit the house of her husband on account 
 of his associating with so many courtesans, both strangers and 
 Athenians, and finally his debaucheries were so flagrant that she 
 felt compelled to apply for a divorce ; but it was necessary for her, 
 in order to a legal separation, to give in her bill to the archon, an,d 
 to appear persdiially with it, for the sending of it: by another hand 
 would not answer the purpose. When she came to do this, accord- 
 ing to law, Alcibiades rushed in, caught her in liis arms, and 
 carried her through the market-place to his own house, no one pre- 
 suming to, oppose him or to take her from him. From that time 
 she remained with him until her death, which happened not long 
 after, when Alcibiades was upon his voyage to Ephesus. The 
 
870 LAW OF COVERTURE. 
 
 violence used in this case seems not to have been contrary to the 
 laws, either of society in general, or of that republic in particular, 
 for Plutarch says that the law of Athens, in requiring her who 
 wanted to be divorced to appear publicly in person was probably 
 intended to give the husband an opportunity to meet with her and 
 recover her. {PlutwrcKs lAfe of Alcihiades.) It is quite certain 
 that the practice of requiring the party to submit his case to the 
 magistrate had the effect to limit, in some degree, the instances of 
 divorce, although the law was not specific as to the causes which 
 would justify the divorce, yet the parties had to institute a regular 
 action before the court, and the magistrate was not apt to give 
 judgment divorcing the parties if they could be reconciled, nor for 
 a trivial cause. The result was that the Greeks were compara- 
 tively exemplary in their domestic relations. (2 Kenfs Com. 102.) 
 § 662.' Among the ancient Eomans the liberty of divorce was 
 allowed to an almost unlimited extent. The maxim of the civil 
 law was that either party might renounce the marriage union at 
 pleasure, and, as may well be inferred, this facility for separation 
 tended to destroy all mutual confidence, and to inflame every 
 trifling dispute. Divorces were far the most numerous in the 
 most polished ages of the Roman republic ; they were very seldom 
 in its early history, and it has been asserted that, although the 
 twelve tables gaye to the husband the freedom of divorce, yet 
 the republic had existed five hundred years when the first instance 
 of a divorce occuiTed. (2 KenCs Com,. 103.) It was enacted by 
 Eomulus that no wife could leave her husband under any circum- 
 stances, but the husband had the power to divorce his wife, in case 
 of her poisoning his children, or counterfeiting his keys, or being 
 guilty of adultery. But if on any other occasion he put her away, 
 she was to have one moiety of his goods, and the other half was to 
 be consecrated to Ceres ; and whoever put away his wife was to 
 make an atonement to the gods of the earth. {PlutarcKs Life of 
 Bomuhts.) One P. Servilius, or Carvilius Spurius, was the firat 
 of the Eomans that ever put away his wife, and he was impelled 
 to do so, not because he did not love and respect her, but because 
 of her barrenness, and he had been obliged by the censors to take 
 an oath that he would give children to the republic. The women 
 among the Eomans came at length to divorce their husbands, as 
 appears from Juvenal {sat. 9), and Martial (Zi5. 10, ep. 41), as 
 indeed the marriage might be renounced at the pleasure of either 
 
DIVORCE IN FRANCE. 871 
 
 pajty, and so wanton and extreme was the abuse of this liberty of 
 divorce that it was held up to public scorn and indignation by the 
 Eoman philosophers, poets and satirists. {Seneca de Benef. HI. 
 16. Martial, lib. 9. Juvenal, sat. 6, v. 228.) The Emperor Augustus 
 undertook to put some restraint upon the facility of divorce, but 
 the check was overpowered by the influence and corruption of 
 manners. Voluntary divorces were abolished by one of the novels 
 of Justinian, but they were afterward revived by another novel 
 of the Emperor Justin. In the novel restoring the unlimited free- 
 dom of divorce, the reasons for it are assigned ; and while it was 
 admitted that nothing ought to be held so sacred in civil society as 
 marriage, it was declared that the hatred, misery and crimes which 
 often flowed from indissoluble connections required, as a necessary 
 remedy, the restoration of the old' law, by which marriage was 
 dissolved by mutual will and consent. (2 Kent's Com. 103, citing 
 Nov. 140.) And it is understood that this liberty of divorce con- 
 tinued in the Byzantine or Eastern empire until it was Anally sub- 
 dued by the power and influence of Christianity. 
 
 Says Mr. Bishop : " Tracing the Eoman law down from these 
 early times, we find that, during all those ages in which its light is 
 distinctly discernible, it allowed greater or less latitude of divorce; 
 and the doctrine of indissolubility was ingrafted on the law, not 
 by the wise men who, at any time, swayed the civil affairs of Eome, 
 but by the Eoman church, as a religious tenet. This doctrine is 
 beheved to have been first made a general tenet of the church by 
 the council of Trent in the year 1653. It never was accepted by 
 the Greek or Eastern church." (1 Bish. on Mar. and Dim. % 24.) 
 However this may be, the Christian sentiment of the present day 
 is most decidedly in favor of the stability of the marriage union ; 
 and, while the policy that the marriage contract is an indissoluble 
 contract in all cases has little sympathy, the opinion is universally 
 prevalent that the parties should never be divorced, except in those 
 extreme cases where the happiness of the liusband and wife is 
 entirely destroyed and the legitimate ends of matrimony wholly 
 fail. 
 
 § 663. In France, during the revolution of 1789, an unlimited 
 power was given to the civil tribunals to dissolve marriages, when 
 ever applications were made, founded upon the mutual consent of 
 parties or at the mere pleasure of either party, on a month's 
 notice, upon the ground of alleged incompatibility of temper. A 
 
872 iAW OF COVESTURE. 
 
 ■writer on the subject remarks that, fortunately for that country, 
 perhaps for mankind, this system was not permitted to endure 
 BuflBeiently long to make the full experiment of moi-al degradation 
 to which a; nation, once the most polished and refined, could bo 
 reduced by the existence of a license for almost promiscuous con- 
 cubinage; and Mr. Burke, in one of his letters on the Kegicide 
 iPeace, has shown the frightful extent to which divorces were car- 
 ried Under that system; The number of divorces in the city of 
 Paris aloney in the first three months of the year 1793, was nearly 
 five times as great as the whole number of divorces or judicial sep- 
 arations granted in England in the course of an hundred years. 
 
 "When the Code Napoleon came to be adopted, the subject of 
 divorce was placed upon nearly the same footing as it stands at 
 this day in the State of New York. A dissolutioh of the marriage 
 for the cause of adultery was thereby allowed. But after the 
 restoration of the Bourbon dynasty, it was deemed expedient to 
 depart from the system of indulgence afforded by the Code 
 Napoleon ; and by a law of the 8th of May, 1816, divorce was 
 abolished, and a judicial sentence of separation from bed and board 
 only was allowed, for any definite cause. In France, therefore, 
 after the experiment was tried, they went back to what they 
 deemed the soundest and best policy in regard to public morals 
 and the sanctity of the marriage contract, which was held to be 
 indissoluble except by death. Thus the law stood there when the 
 late Viee-Chapcellor McCoun delivered his opinion in a case pend- 
 ing in the late court Of chancery of the State of New York, in 
 18il, from which this sketch is taken, and such is the law there at 
 the present day." ( Vide Sanies v. Hanks, 3 Edw. Ch. H. 469, 470, 
 471.) Ineffectual attempts were inade in 1831 and 1832 to repeal 
 the law of ' May 8, 181'6, and there is therefore at present no 
 divorce a 'omOulo mutrimonii in France. 
 
 § 664, In Prussia, thelaws respecting divorce are the same that 
 were enacted in the reign of Frederick the Great, and as he was 
 no friend of married life, he was instrumental in framing a code 
 which established a facility of divorce greatly beyond any precedent 
 in modern Europe. By; this code, incurable impotency, whether 
 from causes before or after man-iage, madness of one year's dura- 
 tion, inexcusable desertion, drunkenness, or other disorder of long 
 standing, ineradicable repugnance, and the like, are causes justify- 
 ing an absolute divorce, and the complainant in. such cases has little 
 
DIVORCE m ENGLAND. 873 
 
 or no difficulty in procuring the decree of the court; and divorces 
 are allowed for many causes fatal to the stability and sanctity of the 
 marriage contract. But in modern Europe, in those countries where 
 the Roman Catholic religion prevails as the national religion, 
 divorces are not generally allowed^ for the reason that, by the 
 Eoman church, marriage is Qonsidered a sacrament, and held to be 
 indissoluble during the life of the parties ; though this is not the 
 case in the Greek or Protestant churches ; and in Austria divorces 
 between Protestants may be had, not only for several substantial 
 causes, but at the request of both parties, on the ground of uncon- 
 querable aversion. (2 Kenfs Oom. 104:, note a.) By the Dutch 
 law, the only causes for an absolute divorce are adultery and 
 malicious desertion. ( Voct de Dmontia et Hepudis, § 5, lib. 24, 
 tit. 2.) . 
 
 § 665. The subject of divorce in England, until recently, was 
 governed by the common law, which considers marriage as indis- 
 soluble, and its rights inalienable, except by the authority of the 
 legislature or by the sentence of the ecclesiastical court, the former 
 jurisdiction alone having the power of dissolving marriage, and 
 the authority of the latter extending no farther than to divorce a 
 mensa et thoro. From a very early period in that country, divorce 
 a mnculo matrimonii was not allowed for any cause without an 
 act of parliament, but for certain causes a divorce a mensa et thoro 
 was allowed, which did not authorize either party to marry again. 
 In the feign of Elizabeth, it would seem, divorces o mnculo were 
 sometimes allowed for adultery ; but in a case in the forty-fourth 
 year of her reign the rule was changed, and it'was held in the. star 
 chamber that adultery was only a cause of divorce a -mensa et 
 thoro; and the Archbishop of Canterbury declared that it had 
 been so settled before him, on appeal,' by many divines and 
 civilians. {Bye \. Foljamh, Moore's E. 683. S. €. 3 8alk. B. 
 138.) Ko reason seems to have been assigned for this change of 
 opinion ; perhaps it arose from an apprehension that the crime of 
 adultery would become more frequent if, when, coirimitted by 
 either party, it was ' admitted to be a sufficient cause for the 
 dissolution of the marriage. 
 
 In 1669 Lord de Eoos instituted proceedings in the spiritual court, 
 and procured a divorce a mensa et thoro, on the ground of the adul- 
 tery of Lady de Roos, and then presented his petition to parliament 
 to have the ikarriage absolutely dissolved, and an act was passed 
 110 
 
874 LAW OF COVERTURE. 
 
 granting him liberty to marry again ; and this is said to be the 
 first case in which application was ever made to the English parlia- 
 ment for a special act of divorce, and the practice was very seldom 
 resorted to for many years afterward, except in cases of adultery. 
 Says Mr. Macqueen : " On a retrospect of one hundred and sev- 
 enty years, since the establishment of the system of parliamentary 
 divorce a vinculo, I find no case in which that remedy has been 
 awarded or sought without a charge of adultery. There is no exam- 
 ple of a bill of divorce for malicious desertion, although, in the other 
 Protestant countries of Europe, that offense, properly established, is 
 considered a scriptural ground of divorce a vinculo matrimonii. 
 * * It is not undeserving of attention that the argument of Bishop 
 Cozens, in Lord de Eoos's case, was not limited to adultery, but 
 included within its range this crime of malicious desertion, by which, 
 as well as by adultery, he appears to have contended that the nuptial 
 bond was rescinded. * * * What might be the result of such 
 an application, strongly supported by evidence of willful and long 
 continued desertion and abandonment, must be matter of conjec- 
 ture, or, at least, of very doubtful speculation ; the discretion of 
 parliament being unfettered by precedents and open to a free con- 
 sideration of the special circumstances of every new case." 
 (Macqueen, H. L. Pract. 473, 474.) But, in the year 1857, an act 
 was passed by the English parliament, essentially modifying the 
 practice in respect to divorce. This act retains substantially the 
 old rule respecting divorces a mensa et thoro in cases of adultery 
 by the court, calling them judicial separations ; and, in place of 
 the old parliamentary practice, it provides that " it shall be lawful 
 for any husband to present a petition to the said court, praying 
 that his marriage may be dissolved, on the ground that his wife 
 has, since the celebration thereof, been guilty of adultery ; and it 
 shall be lawful for any wife to present a petition to the said court, 
 praying that her marriage may be dissolved, on the ground that, 
 since the celebration thereof, her husband has been guilty of inces- 
 Ijuous adultery, or of bigamy with adultery, or of rape, or of sod- 
 omy or bestiality, or of adultery coupled with such cruelty as, 
 without adultery, would have entitled her to a divorce a mensa et 
 thoro, or of adultery coupled with desertion without reasonable 
 excuse for two years or upward ; * * * provided that, for the 
 purposes of this act, incestuous adultery shall be taken to mean 
 adultery committed by a husband with a woman with whom, if his 
 
DIVORCE IN NEW YORK. 875 
 
 ■wife were dead, he could not lawfully contract marriage, by reason 
 of her being within the prohibited degrees of consanguinity or 
 affinity ; and bigamy shall be taken to mean marriage of any per- 
 son, being married, to any other person during the life of the for- 
 mer husband or wife, whether the second marriage shall have taken 
 place within the dominions of Her Majesty or elsewhere." (20, 21 
 Viot. ch. 85.) It will be observed that the simple adultery of the 
 wife is cause for an absolute divorce, while that of the husband is 
 not ; the reason of the distinction being, probably, not because the 
 husband's adultery is a less grave offense against the marriage than 
 the adultery of the wife, but because the violation of the marriage 
 vow on the part of the wife may be much more mischievous in its 
 effect and may impose on the marriage a spurious issue. 
 
 Lords Thurlow, Loughborough, Granville and other statesmen 
 of England, expressed a strong desire to have the subject of divorce, 
 propter advlteriam, submitted to the disposition of some regular 
 judicial tribunal, where the crime and the provocation to commit 
 it could be carefully balanced and investigated with the temper, 
 deliberation and caution that ought to accompany such a delibera 
 tion ; but the practice was never adopted there until 1858, when 
 the statute of 20 and 21 Victoria went into operation. By this 
 act a new tribune, called the court for divorce ■ and matrimonial 
 causes, haa been established, and the jurisdiction of the ecclesiasti- 
 cal courts has been entirely superseded in all matters for divorce. 
 
 By the law of Scotland, an absolute divorce is granted in cases 
 of adultery and willful desertion by either party ; and divorces a 
 mensa et thoro are granted in cases of gross abuse and the like. 
 {Bell's Principles of tlie Law of Scotland, 419, 420.) 
 
 § 666. The history of the subject of divorce in this country is 
 not without interest. It may be remarked that the matrimonial 
 law of England is the common law of this country, except in 
 America we have no matrimonial courts, and it is therefore diificult 
 to procure the dissolution of the marriage contract without legis- 
 lation upon the subject. 
 
 The history of the early policy concerning divorces in the State 
 of New York has been judicially declared. When New York 
 became a province of England, it was for some years ruled by a 
 governor, or a governor and council ; and during that period the gov- 
 ernor, either alone or in conjunction with the council, seems to 
 have exercised all magistracy, executive, legislative and judicial. 
 
876 ZAW OF COVEBTWJIE. 
 
 DuriBg that period one of the' governors, Lovelace, granted four 
 divorces, of which one was in 1670 and the other three in 1672. 
 These are the only instances of divorce which appear to have taken 
 place in the colony during the long period in which JN^ew York 
 was a province of England. In 1683 the people were admitted to 
 a participation of the legislative power, and from that time laws 
 were enacted by the colonial legislature. The colony never had 
 any court possessing jurisdiction of matrimonial causes, or power 
 to grant divorces. No statute defining causes of divorce, or author- 
 izing divorce, in any case whatever, was ever enacted by the legis- 
 lature of the colony. Sonie special applications for divorces were 
 made to the colonial legislature, but all such applications were 
 refused. The governor of the colony, with the consent of the 
 council, had power to establish courts of justice, and all the 
 courts of the cplony derived their origin from this source of 
 authority. JBut no court having cognizance of matrimonial causes 
 or divorces was ever established in the colony ; no court of the 
 colony ever exercised any such jurisdiction, and no law concerning 
 divorce was ever enacted by the colonial legislature. The four 
 divorces granted by Governor Lovelace must be regarded as extra- 
 ordinary acts of power, by a chief magistrate who possessed very 
 great and indefinite authority. They were the acts of one gov- 
 ernor ; they stand alone in the history and practice of the colony, 
 and they afibrd no proof of any law of the colony authorizing 
 divorces. From the best information that can be obtained from 
 the records or otherwise, it appears that no divorce took place in 
 the colony of !N^ew York during more than one hundred years pre- 
 ceding the time when it became a state, and that the only divorces 
 which ever took place in the colony, were the four granted by Gov- 
 ernor Lovelace, in 1670 and 1672. Thus, it appears that the law 
 of England concerning divorces and matrimonial causes, was never 
 adopted in the colony of New York. It was not adopted in fact 
 or in practice, and it was never the law of the colony. 
 
 When the colony became a state in 1777, the law of the colony 
 was adopted as the law of the state; and during more than ten 
 years after the colony became a state there was no law authorizing 
 a divorce in any case whatever. On the 30th day of March, 1787, 
 the legislature passed a statute entitled ." An act directing a mode 
 of trial, and allowing of divorces in cases of adultery." This was 
 the fii'st law of the state authorizing a divorce, and it was confined 
 
DIVORCE m SOUTS CAROLINA. 877 
 
 to the case of adultery. It continued to be. the only law until the 
 9th day of April, 1813, when the legislature passed an act which 
 gave the wife the right to obtain a divorce from her husband when 
 he had been guilty of cruel and inhuman treatment toward her, 
 or such conduct as rendered it unsafe and improper that she . 
 should cohabit with him ; or where he had abandoned her and 
 neglected to provide for her; and the provisions of this act were 
 extended by statute on the 10th April, 1824, to husbands against 
 their wives ; and these statutes continued in force imtil the Eevised 
 Statutes of 1830 took effect. Upon this history, and upon a 
 review of the legislation upon the subject, the late court of chan- 
 cery, in 1825, refused a divorce in case of impotence; and the 
 chancellor, in giving his opinion, said : " The cause for which this 
 court is now asked to dissolve a marriage is corporal impotence on 
 the part of the husband. This fact is not a cause of divorce by 
 our statutes; and it is impossible to yield to this suit without 
 adopting the law of England, or of some other country, concerning 
 divorces, as the law of this state. If a divorce can be granted for 
 this cause, the whole catalogue of causes allowed by the laws of 
 England may be equally adopted ; the acts of the legislature and 
 the policy of the state respecting divorces would be superseded by 
 the doctrines of a foreign code ; and a power hitherto unknown in 
 this state would be exercised. The corporal impotence of the hus- 
 band is a cause of divorce in England, and by the laws of most 
 countries ; but it is not a cause of divorce by the laws of this state. 
 This suit must, therefore, be dismissed." {Burtis v. BurUs, 
 Hop. Ch. R. 557.) It may be stated here that by the Eevised 
 Statutes now in force in the state, physical incapacity is made a 
 ground of divorce, if suit is brought within two years after the 
 marriage. (2 Rev. Stat. part. 2, ch. 8, tit. 1, § 20. 2 Stat, at Large, 
 148.) But it is proposed to give the causes for divorce in the State 
 of New York in another place. 
 
 § 667. In the State of South Carolina, to her unfading honor, as 
 has been claimed, " a divorce has not been granted since the 
 Eevolution." {Head v. Head, 2 Kelly''s li. 191.) Judge Nott, in 
 delivering the opinion of the court in a case, very singularly 
 observed : " In this country, where divorces are not allowed for any 
 cause whatever, we sometimes see men of excellent character 
 unfortunate in their marriages, and virtuous women abandoned or 
 driven away houseless by their husbands, who would be doomed 
 
878 LAW OF COVERTURE. 
 
 to celibacy and solitude if they did not form connections which the 
 law does not allow, and who make excellent husbands and virtuous 
 wives still. Yet they are considered as living in adultery, because 
 a rigorous and unyielding law from motives of policy alone, has 
 .ordained it so." {Ousack v. White, 2 MilVs R. 279, 292.) 
 
 Judge O'Neill, while expressing himself in laudatory terms of 
 the legislation of the state upon the subject, remarked : " The most 
 distressing cases, justifying divorce even upon Scriptural grounds, 
 have been again and again presented to the legislature, and they 
 have uniformly refused to annul the marriage tie. They have 
 nobly adhered to the injunction, " Those whom God hath joined 
 together let no man put asunder.' The working of this stern 
 policy has been to the good of the people and the state in every 
 respect." {McCarty v. McCarty, 2 Strdb. R. 6, II.) And Chan- 
 cellor Durgan declared : " The policy of this state has ever been 
 against divorces. It is one of her boasts that no divorce has ever 
 been granted in South Carolina." {Hair v. Hair, 10 Richl JSq. 
 R. 163, 164.) It is perceived, therefore, that in South Carolina 
 they have no history upon the subject of divorce, because no 
 divorce is ever granted ; but this state is an exception, and perhaps 
 the declaration of one of her judges is' the result of the policy, 
 when he said : " All marriages, almost, are entered into on one of 
 two considerations,Move or interest, and the court is induced to 
 believe the latter is the foundation of most of them." {IJevall v. 
 Devall, 4 Des. R. 19.) But all the other states have a history of 
 more or less duration upon this important subject of divorce. 
 
 § 668. In N'ew Hampshire, Parker, Ch. J., in 1838, gave a history 
 of the laws of divorce in that state, thus : " Prior to the revohi- 
 tion divorces are supposed uniformly to have been granted by the 
 legislature, as they are sometimes granted by parliament in Eng- 
 land, ^o law is found giving the ordinary courts of judicature 
 any power upon the subject. They were so granted afterward, and 
 prior to the adoption of the constitution of 1783. In the edition 
 of the laws printed in 1780, page 115, is an act to dissolve the mar- 
 riage between Eobert Eogers, and Elizabeth his wife, passed March 
 4, 1778. And during the existence of the provincial government, 
 that part of the jurisdiction of the ecclesiastical courts relating to 
 the probate of wills and settlement of estates was exercised by 
 judges of probate, with an appeal to the governor and council, as 
 the supreme court of probate. {Frov. Laws, 103-106.) 
 
DIVORCE ly NORTS CAROLINA. 879 
 
 "Upon the adoption of the constitution, in 1783, it was deemed 
 expedient to make a different provision in this respect, and the 
 clause referred to in the argument was inserted, providing that all 
 causes of marriage, divorce and alimony, and all appeals from the 
 respective judges of probate, shall be heard and tried by the supe- 
 rior court, until the legislature shall by law make other provision. 
 
 " It is evident, from this view of the matter, that this clause of the 
 constitution was not intended to create any new rules in relation 
 to marriage, or its dissolution, or the maintenance of married 
 women. It provided for a mere transfer of the jurisdiction which 
 had existed in the assembly and the governor and council, leaving 
 the legislatm-e to make such provision upon the subject as should 
 afterward be deemed expedient. 
 
 "In 1791, the legislature passed an act specifying the causes for 
 which divorces might be granted. * * » This act is still in 
 force, and has ever since been regarded as a legislation upon the 
 whole subject, and not as in aid of any practice such as is adopted 
 in the English ecclesiastical courts. It embraces nearly all of the 
 laws of divorce from bed and board in England, and authorizes, in 
 all the cases specified, a divorce from the bans of matrimony," 
 {Parsons v. Parsons, 2 If. H. E. 309, 318, 319.) In 1839, an 
 act was passed extending the list of causes for divorce to that of 
 desertion and refusal to cohabit for the space of three years, and 
 thus the law stands at the present day. 
 
 § 669. In the State of North Carolina, the first law which gave 
 authority to the courts to take cognizance of the subject of divorce 
 was passed in 1814, and declared the causes^ for divorce from the 
 bans of matrimony to be natural impotence, or that either party 
 has separated him or herself from the other, and is living in adul- 
 tery, and a divorce from bed and board might be decreed when 
 the husband maliciously turns his wife out of doors, endangers her 
 life by cruel treatment, or ofiers intolerable indignities to her per- 
 son. {Laws of 1814, ch. 5. And vide Dickinson v. Dickinson, 3 
 Murph. li. 327.) Before the passage of this act of 1814, divorces 
 in North Carolina could be only granted by the legislature, and it 
 wa,s competent for the legislature to divorce either from bed and 
 board, or from the bans of matrimony, at discretion, without regard 
 to the law as it then stood. But in that year th^ legislature trans- 
 ferred full jurisdiction to the courts in cases of impotency and 
 adultery to divorce either from bed and board, or from the bans of 
 
880 LAW OF COVERTUSE. 
 
 matrimony, at their discretion. {Collier v. Collier, 1 Dev. Eq. R. 
 152.) ■ 
 
 These brief sketches, showing the sources of authority and the 
 early practice in cases of divorce, are derived from the opinions of 
 judges, who have taken the trouble to examine the records and 
 bring out the history of the subject; and very likely other judges 
 have taken a similar interest in other States, and the result of their 
 examinations may be found in the published reports of the states ; 
 but it is not thought to be of sufficient importance to justify any 
 further injury in this place. As has been before suggested, all of 
 the states, with the exception of South Carolina, have a system 
 of divorce, and, for causes more or less numerous, the marriage 
 relation may be dissolved. 
 
 § 670. It might be interesting to trace the history of opinion 
 upon this subject of divorce, and the modifying effect which the 
 changing conditions of society have produced in the opinions of 
 good men in respect to the real nature and object of the marriage 
 union, and the policy of a system which contemplates its dissolu- 
 tion in certain extreme cases during the lives of the parties; but 
 it is not consistent With the plan of this work to occupy any con- 
 siderable space with this matter. The prevailing opinion upon 
 the subject at the present day may be summa;rily given : " The 
 rendering of the contract of marriage indissoluble is running into 
 the opposite extreme from that of permitting divorces at the pleas- 
 ure of the parties. There are many persons who, on the idea that 
 the marriage contract cannot be vacated for any misconduct, will 
 not behave with the propriety they would if the continuance of the 
 conti'act were dependent on their exertions to .niake themselves 
 agreeable to the persons with whom they are connected. It is a 
 great hardship that a person who has been unfortunate in forming 
 a matrimonial connection must be forever precluded from any pos- 
 sibility of extricating himself from such a misfortune, and be shut 
 out from enjoying the best pleasures of life. This consideration, 
 instead of adding to the happiness of the connection, must frighten 
 persons from entering into it. It is, therefore, the best policy to 
 admit a dissolution of the contract when it is evident that the par- 
 ties cannot derive from it the benefits for which it was instituted ; 
 and when, instead, of being a source of the highest pleasure and 
 most enduring felicity, it becomes the source of the deepest woe 
 and misery." (1 Swift^s System, 191.) 
 
OPINIONS mSSPECTINQ ^DIVORCE. 881 
 
 "The idea that, according to any just view, whenever parties 
 have come together in marriage, they have thereby placed them- 
 selves so far in each other's power for life as to be incapable of 
 freeing themselves by any act of the law, tliough the ends of their 
 union are all frustrated, thongli one of them is unwilling to dis- 
 charge the duties undertaken, though every h(3pe of its ministering 
 to the well-being of the pai'ties is obliterated, surely can have place 
 only in a perverted understanding. True, indeed, is it that this 
 union is intended to be for life, that only in the most extreme cir- 
 cumstances should it be dissolved ; but the very fact of its sacred 
 nature, too sacred to be made matter of temporary arrangement, is 
 the strong reason why, when it ceases to have any thing worthy to 
 be called sacred about it, whfen an erring one has trampled it in 
 the mud of his corruption by his polluted feet, the law should 
 cease to call it sacred, and pronounce it profaned and dissolved. 
 The idea of promoting in the community reverence for marriage 
 by holding that to be marriage from which aU disgusting things do 
 flow, by receiving as too sacred to be molested the relation which 
 breeds corruption in the souls of the parties, adulteries in the com- 
 munity, unnatural developments of wickedness in children, sorrow 
 in the hearts of multitudes made by God to be happy, blasphemies 
 in the temple of matrimonial purity, is too pl-eposterous, too 
 absdrd, to be reasoned against ; too monstrous to be credited as a 
 fact of human legislation, did not testimony not to be rejected 
 prove its existence." (1 Bishop on Marriage' cmd Di/oorce, § 46.) 
 
 But there is a general concurrence of opinion at the present day 
 
 that the objects of the matrimonial union are best subserved by a 
 
 legal policy which provides, in certain aggravated cases, for its 
 
 dissolution, although the opinions of men very naturally differ as 
 
 to the extent to which the latitude of divorce should be carried. 
 
 An opinion adverse to a divorce under any circumstances is an 
 
 exception to the rule; and it is doubtful, even in South Carolina, 
 
 whether the prevailing sentiment is not opposed to the policy 
 
 which forbids all divorces, although as yet no system of divorce 
 
 has been inaugurated in that state. The divergency of opinion 
 
 among thoughtful men is in respect to the facilities for obtaining a 
 
 divorce, and not in respect to the propriety of granting divorces 
 
 at all. 
 
 Ill 
 
882 LAW OF COVERTURE. 
 
 CHAPTER XLII. 
 
 THE DIITEEENT KINDS OF DTVOECE — THE DIVOECE FEOM THE BONDS 
 
 OF MATEIMONY CAUSES FOE AN ABSOLUTE DIVOECE THE DIVOECE 
 
 FEOM BED AND BOAED — GEOUNDS OF SUCH DIVOECE. 
 
 § 671. Theee are two kinds of divorce usually recognized ia 
 England and the United States : an absolute divorce from the 
 bond of matrimony, or, in Latin, a divorce a vinculo matrimonii ; 
 and a divorce simply from bed and board, or, as the Latin expresses 
 it, a divorce a mensa et thoro. The divorce a vinculo matrimonii 
 is a complete dissolution of the bond of matrimony, and puts an 
 end to the marriage i-elation. The divorce a mensa et thoro, is not 
 a dissolution of the marriage contract, but is a mere judicial separa- 
 ration of the parties, while the matrimonial relation still continues 
 to exist. In some of the states all divorces are absolute and com- 
 pletely terminate the marriage relation ; and technically in England 
 they have only the divorce from the bond of matrimony, though 
 they have a judicial separation which has the same force and effect 
 as a divorce a msnsa et thoro. In a few of the states the divorce 
 may be either absolute or limited, in the discretion of the court, 
 or even at the election of the party applying for it, and sometimes 
 for the same causes, and upon the same state of facts ; and in one 
 or two of the states the divorce a mensa et thoro is granted as a 
 preliminary to the divorce a vvnoulo matrimonii. As a general 
 rule, however, it may be affirmed that the character of the divorce 
 is determined by statute, leaving no discretion in the tribunal before 
 which the application is made. In those states where the statute 
 authorizes the court to make the separation perpetual or only for 
 a limited period, the courts always hold this is not an arbitrary 
 discretion, but one which should be judiciously exercised. It was 
 said in one case ; " although a divorce a mensa et thoro may be 
 allowed in some instances to a person who is not entirely impecca- 
 ble, who may not have been exemplaiy in all the attentions and 
 stipulated offices assumed in contracting this relation, yet the 
 policy of the law, the interest of the offspring, the tranquillity and 
 happiness of families in general, forbid the dissolution of mar- 
 riage at the suit of a person to whom default in any of the essen- 
 tial duties of married life can be fairly imputed." ( ]Vhittington v, 
 Whittington, 2 Dev. <& Bat. B. 64. Vide also Eutledge v. BuUedge^ 
 
LEGISLATIVE DIVORCES. 883 
 
 6 Sneed's R. 654. BurMolts v. BucMolts, 24 Geo. R. 23,8. 
 Conant v. Conant, 10 CaZ. ^. 249.) In a case before the late 
 court of chancery in the State of New York, in 1819, where, by the 
 statute concerning divorces, the enlarged discretion was given the 
 court. Chancellor Kent observed : " There is much embarrassment- 
 on the ground of policy and public morality, with these partial 
 dissolutions of the matrimonial union. It is throwing the parties ' 
 back upon society, in the undefined and dangerous characters of a 
 wife without a husband, and a husband without a wife. 
 
 » * * 
 
 There are objections to a separation for a precise or limited time, 
 though such decrees have been rendered. It may inspire a con- 
 stant fear on the one side, and nourish hopes of revenge on the 
 other. It rather appears to me to be the most kind and salutary 
 course to declare the separation perpetual, with a power, however, 
 reserved to the parties to come together under the sanction of the 
 court, whenever they shall find it to be their mutual and voluntary 
 disposition." {Barrere v. Barrere, 4 Johns. Ch. R. 187, 191.) 
 And in another case before the same learned chancellor, as early 
 as 1815, wherein it appeared that the parties were young, and it 
 was thought possible that a temporary separation would be suffi- 
 cient for correction and admonition ; the chancellor said : " I shall 
 give them an opportunity at a distant period of re-entering into 
 their dirties, and of seeking for mutual consolation and happiness 
 in conjugal life." {Beddl v. Bedell, 1 Johns. Ch. R. 604, 606.) 
 
 § 672. The divorce is sometimes granted by act of the legisla- 
 ture, and, in such cases, no rule can be stated in respect to the 
 causes for which an absolute divorce will be granted. It is gen- 
 erally supposed that unless the fundamental law of the state 
 expressly prohibits legislative divorces, the legislature may grant 
 such divorces in its discretion, although a satisfactory reason is 
 usually given for the divorce, in every case. But the subject of 
 legislative divorces is at present of but little practical interest in 
 the United States, from the fact that jurisdiction is generally given 
 to the courts in all cases of divorce, and in many states constitu- 
 tional provisions exist prohibiting such divorces. In fact, 'the 
 courts have occasionally held in those states where there is no 
 express inhibition, that such divorces are an infringement of the 
 provisions of the federal constitution prohibiting the passage of 
 any law impairing the obligation of contracts. In a case in the 
 State of Florida, the supreme court of the state took this view. 
 
88i LAW OF COVERTURE. 
 
 Semmes, J,, who delivered the opinion of the court, insisted that 
 there was no good reason why this provision of the constitution 
 should be restricted to contracts of a pecuniary nature, and not 
 embrace that of marriage, saying that the contract of marriage was 
 comprehended bjr the Words, of the constitution, and that there 
 was no rule of construction that would exclude it, in the absence 
 of any thing to show that, it is not within its spirit. {Ponder v. 
 Graham, 4 Flor. E. 23.) A similar opinion lias been advanced in 
 other cases, but the doctrine is not generally recognized as being 
 sound, and yet the -practice of dissolving the marriage relation by 
 acts of the legislature is so little resorted to in the United States, 
 that it is not thought necessary to refer to the discussions which 
 have been had, and the doctrines declared in respect to that species 
 of divorce. 
 
 % 673. The causes for an absolute divorce are generally pre- 
 scribed by statute, and there is a wide difference in the. statutes of 
 the several states upon the subject. The adultery of the party, 
 however, is a ground of divorce a vinculo mairimonii in all, or 
 nearly all, of the states ; perhaps in all of the states, with the 
 exception of South Carolina, where they have no divorces at all, 
 either by the sentence of a court of justice, or by act of the legis- 
 laturc; Indeed no offense is regarded so repugnant to the mar- 
 riage relation as 'that of adultery, and hence that is a cause for an 
 absolute divorce in all countries where divorces are granted for 
 any cause whatever. Adultery consists in the carnal connection 
 of one of the married parties with any other person than him or 
 her to whom he or she is married. The offense can be committed 
 only by a married person, although the associate in the act may 
 be either married or single. The law formerly treated adultery as 
 an offense against society, but recently it is treated as an offense 
 against the mbral law, for which the offender is accountable to the 
 injured party. The public sentiment is generally against treating 
 it as a criminal offense, although in some of the states it is punish-, 
 able by fine and imprisonment. In all countries the offense of 
 incontinence by the man is differently considered from the same 
 offense in: the woman, although' it is very difficult in principle to 
 discover the distinction. In England, it is only the husband, ordi- 
 narily, that can have an absolute divorce for the incontinence 
 of the wife, but in France and in all of the United States, the 
 adultery of either party is a ground of absolute divorce, on the 
 
GROUNDS FOB AN; ABSOLVfTE DIVORCE. 885 
 
 petition of the party aggrieved ; and in England, if the adultery 
 of the husband is incestuous, or coupled with bigamy or rape, the 
 wife may have her absolute divorce. The adultery in every case 
 must be voluntary, for if the connection were the result of mistake, 
 or force, it is not the foundation for a divorce ; that is if the wife 
 were ravished, or if the husband should have carnal knowledge of 
 a woman honestly belie\|Lng her to be his wife, the offense is not 
 committed so as to justify a divorce, or if the party were insane at 
 the time of the connection. The carnal act xmder such circum- 
 stances, would not constitute adultery. > {JVicfiioh v. JVzc/iols, 31 
 Vt. E. 328. Broadstreet v. Broadstreet, 7 Mass. E. 474.) But 
 no pretended religioiis opinion favoring adultery can be urged in 
 defense of the act. {D''Aqmlar v. D^Aqmlar, 1 Hag.Eo. E. 773. 
 1 Bish. Mar. arid Div. § 713.) 
 
 § 674. As a general rule a person sentenced to imprisonment in a 
 state prison or penitentiary for life, is deemed civilly dead, and there- 
 fore such sentence, in case of a married man or woman, i^so facto 
 dissolves the .marriage union. And in several of the, states, the 
 conviction and sentence to the state prison for a specified number 
 of years, less than for life, is cause for an absolute divorce. Thus, 
 in the States of Vermont, Michigan, Wisconsin, Nevada, JSTebraska 
 and others, a conviction of felony and sentence to the state prison 
 for the term of three years or more, is made a ground for divorce 
 a vinculo matrimonii; and in some of the states, as in Illinois, 
 Kentucky, Missouri, Minnesota and Oregon, the simple conviction 
 of a felony or infamous crime is. cause for a divorce ; and in others 
 of the states, as in Connecticut,, the conviction of the offense of 
 bestiality, or any other infamous crime involving a violation, of con-r 
 jugal duty and punishable by imprisonment in a state prison, is 
 deemed a sufiicient cause of divorce from the bonds of niiatrimony. 
 In these cases it has been held that if th6re should, be a discrepancy 
 between the name of the party in the record of conviction and in 
 the proceedings for a divorce, evideiice rflsfoVn^ft 'Will be admissible 
 toishow that both names refer to the same person, . ( Utsler v. Utsler, 
 Wright's E.627.) ' ■■ 
 
 § 675. Jn many of the states, as in Vermont, Connecticut, New 
 Jersey, Pennsylvania, Illinois and most of the western states, 
 cruelty, or as it is sometimes named, " extreme ; cruelty," "such 
 inhuman treatment as to endanger life," or " cruel and barbarous 
 treatment," is a valid ground for an absolute divorce.: When this 
 
886 ZAW OF OOVERTUBE. 
 
 is made a cause of divorce, there is often difficulty in determining 
 •whether the act complained of amounts to cruelty within the 
 meaning of the statute, and there has been no small amount of 
 litigation as to the deiinition and nature of legal cruelty. But in 
 cases where the divorce is from the bond of matrimony for this 
 cause, it is generally understood that legal cruelty is that which may 
 endanger the life or health of the party. Lord Stowell, in his 
 master opinion, pronounced eighty years ago, is often qtioted as a 
 leading authority upon the subject; and he said, "what merely 
 wounds the mental 'feelings is in few cases to be admitted, where 
 not accompanied with bodily injury, either actual or menaced. 
 Mere austerity of temper, petulance of manner, rudeness of lan- 
 guage, a want of civil attention and accommodation, even occasional 
 sallies of passion, if they do not threaten bodily harm, do not 
 amount to legal cruelty; they are high moral offenses in the mar- 
 riage state undoubtedly, not innocent sm-ely in any state of life, 
 but still they are not that cruelty which the law can relieve. Under 
 such misconduct of either of the parties, for it may exist on one 
 side as well as on the other, the suffering party must bear in some 
 degree the consequences of an injudicious connection ; must sub- 
 due by decent resistance or by prudent conciliation ; and, if this 
 cannot be done, both must suffer in silence. * * * In the 
 older cases of this sort, which I have had an opportunity of look- 
 ing into, I have observed that the danger of life, limb or health is 
 usually inserted as the ground upon which the court has proceeded 
 to a separation. This doctrine has been repeatedly applied by the 
 court in the cases that have been cited. The court has never been 
 driven off this ground. It has been always jealous of the fncon- 
 venience of departing from it, and I have heard no one case cited 
 in which the court has granted a divorce without proof given of a 
 reasonable a^pprehension of bodily hurt." {Evans v. Evans, 1 Sag. 
 Cm. E. 35.) 
 
 In England, at the time this opinion was pronounced, cruelty 
 was cause for a divorce only from bed and board, but the definition 
 of legal cruelty laid down by the eminent judge, is generally 
 recognized as authority in those states where cruelty is a ground 
 for an absolute divorce. The general doctrine would seem to be 
 that there must be either actual violence committed, attended with 
 danger to life, limb or health, or there must be a reasonable 
 apprehension of such violence. {Tide Shaw v. ShoAJOy 17 Conn. 
 
GROUNDS FOB AN ABSOLUTE DIVORCE. 887 
 
 B. 189. Butler v. Butler, 1 Parson's E. 329, 334. Shannan v. 
 Sharman, 18 Texas B. 521, 525. Mahone v. Mahone, 19 0«Z. i?. 
 626. Morris v. Morris, 14 «5. 76. TFand? v, TFancZ, /J. 512. 
 Finley v. Finley, 9 Dana's B. 52. TAomberry v. Thornlerry, 2 
 /. y. Marsh. B. 322.) In the statute of Illinois the words are, 
 "and for extreme and repeated cruelty, and habitual drunkenness 
 for the space of two years ; " the courts hold that the twd* years 
 specified do not apply when the case is one of cruelty. {Harman 
 V. Barman, 16 Hi. B. 85.) 
 
 As a general I'ule, one act of cruelty, unless a very aggravated one, 
 will not suffice to authorize a divorce. The acts must be persistent, 
 unless they are such as to lead to the presumption that they will 
 be repeated. {Mahone v. Mahone, 19 Cal. B. 626, 628. Richards 
 V. Bichards, 1 Grant's Cases, 389. Graecen v. Graecen, 1 Green's 
 Gh. B. 459. Finley v. Finley, 9 Dama's B. 63. Zauber v. Mash, 
 15 Za. An. B. 593. Doyle v. Doyle, 26 Mo. B. 545.) As has 
 been intimated, actual violence is not always necessary. By the 
 statute of Iowa, when the husband " is guilty of such inhuman 
 treatment as to endanger the life of his wife," the court held that, 
 as a specific cause of divorce, this clause is the definition of 
 that degree of cruelty which entitles the party to a divorce ; " but 
 threats of violence, when there is danger of harm — that is, of harm 
 or injury to the life of the party, are sufficient." (Beehe v. Beeie^ 10 
 Iowa B. 133, 135, 139. Carathurs v. Carathurs, 13 ib. 266.) 
 
 Usually in cases of applications for divorce on the ground of 
 cruelty, the complaint proceeds from the wife, and yet the law 
 of most of the states where cruelty is a cause for an absolute 
 divorce, authorizes the divorce as well on the application of the 
 husband as of the wife. {Beebe v. Beehe, sufpra.) 
 
 § 676. So also in many of the states abandonment and desertion 
 is ground for a divorce a vinculo matrimonii, although the dura- 
 tion of such abandonment and desertion in order to justify the 
 divorce, is varied by the statutes authorizing the same. 
 
 The civil and canon law, according to Godolphin, allow of 
 divorce after a long absence, but are not agreed touching tke time 
 of that absence : for in one place it is often two years, in another 
 three years, in another four. Others hold that the civil law requires 
 five years' absence before there may be a divorce on that account. 
 " But the truth is," he affirms, " no absence, be it for any time 
 whatever, doth properly cause a divorce in law. Indeed, seven 
 
LAW OF COVEETVEE. 
 
 years' absence, without any tidings or intelligence' of or from tHe 
 absent party, as to indempnise the woman from the penalty of 
 polygamy, if in any case she marry again. Also the canon law 
 hath decreed, that if the wife. refuse to dwell with her Ghristian 
 husband, he may lawfully leave her." {Godolph. Ah. 19i.) And 
 there are provisions, as we have seen, in the statutes of several of 
 the Tlftiited. States," sanctioning the marriage of a person whose 
 husband or wife shall have absented himself or herself for a speci- 
 fied number of years, without being known to such person to be 
 living {ante § 642) ; but in these cases such absence is no cause 
 for divorce, and such absence does not come under the head of 
 abandonment and desertion where that is declared to be a cause 
 for divorce. 
 
 The offense of abandonment and desertion, ■ as a ground of 
 divorce, although . differently expressed in the, statutes of those 
 states where it is made a ground of divorce, is .generally understood 
 to .be a willful and malicious desertion of the party, intending 
 thereby to renounce the marriage relation. The period of deser- 
 tion to justify the divorce is usually fixed by the statute, and differs 
 in many of the states. ■ Thus, by the laws of .Vermont, there must 
 be " willful desertion for three consecutive years." {Gen. Stat. 1863, 
 ch. 70, §.20.) In New Hampshire the. provision is "when either 
 party, without sufficient cause, and without the consent of the 
 other,, shall have abandoned such other, and refused for three years 
 to cohabit with.such other." {^Vide Payson v. Payson, 34 I^. H. 
 B. 518.) , In Maine willful desertion for five years is a ground of 
 divorce.; .{Fdltiws v. Fellows, 31 Maine P. 342.) In Connecticut 
 there must be "seven years' absence, not heard of." {Gen. Stat.. 
 1866, tit. 13, ch. 3, § 32.) In New Jersey it is "willful, continued 
 and. obstinate desertion; for the term of, five years." {Ehn.Pig.p. 
 206, §§ 3,4, 8.) In Tenrisylvania the language is "willful and 
 malicious desertion and absence from the habitation of the other, 
 without a reasonable cause, for and during the term and space of 
 two years.!' {Laws of 1815. 6 SmitKs Laws, 286. Dunlop's 
 Laws, pt 319.) In Ohio, when either of the parties is willfully 
 absent for three years, a divorce maybe granted. In Indiana, 
 willful desertion for one year is sufficient. (2 Pev. Stat, of 1862, 
 ch. 6, § 7.) In Illinois, where th& party "has willfully deserted 
 and-absented himself or herself from the husband or wife, without 
 any reasonable cause, for the space of two years," an absolute 
 
GROUNDS FOR AN ABSOLUTE DIVORCE. 889 
 
 divorce may be granted. (1 Gen. Stat, of 1858, jj. 150, § 1.) And 
 the law is substantially the same in Michigan. {Comp. Stat., 1857, 
 ch. 108, § 6.) In Missouri, a divorce a vineulo matrimonii -will 
 be granted when the husband or wife absents himself or herself 
 " without reasonable cause for the space of one year." {Gen. Stat. 
 of 1865, oh. 114, § 1.) The law is the same in Minnesota. {Gen. 
 Stat, of 1858, ch. 53.) In Iowa the desertion must be tw,o years. 
 {laws of 1860, :p. 429, 1 2534.) In the new State of Nevada, the 
 law is substantially the same. {Laws of 1861, ch. 33, ;§ 22.) And 
 the law is the same in the new State oi' Nebraska. {Hev. Stat, of 
 1866, ch. 16, § 6.) In Oregon, it is "willful desertion for the 
 period of three years." {Gen, Stat. 1864:, ch^ 5, % idl.) The laws 
 of California and Mississippi are similar. {Gomp. Stat. Gal. 1853, 
 ch. 116. JSev. Stat, of Miss. p. 333, art.ll) In Kentucky the 
 court of chancery may decree an absolute divorce for the abandon^ 
 ment and separation by one party fro.m the other i for one year, 
 upon the application, of conirse, of the party not in fault. (2 Eev. 
 Stat. p. 17, OFt. 3, § 1.) In Tennessee the words of the statute are 
 "willful and malicious desertion or absence by the husband or wife, 
 without a reasonable cause, for the space, of two years." : {Vide 
 Stewart v. Stewart, 2 Swan's ^.591. Idutledge.r. JRutledge, 5 
 SneedJ's R. 554.) ,In Georgia, it is "willful and continued desert- 
 tion for the term of three years." . ( Vide Wood v. Wood^ 2^ Geo. H. 
 281.) And in Florida the provision is "for willfal, obstinate 
 and continued desertion,' by either party; for the term of a year." 
 (Thomp. Dig. 223.) 
 
 The provisions given are supposed to be in accordance, with the 
 statutes of the several states now in force ; but as the statutes are 
 occasionally changed, the praqtitioner will be careful to examine 
 the statutes of the state in which the application is made. .,. 
 - § 677. It would seem that the legal meaning of these words 
 "desertion" and "abandonment" was so apparent that there 
 should be no question in regard to it ; and yet there has beeii a 
 vast deal of litigation involving simply the interpretation to be 
 given to the various phrases made use of in the statutes. In 
 theory, the courts hold that the assent of the .party to the separation 
 and absence of the other will prevent the divorce, although such 
 assent may be revoked when the absence may amount to desertion 
 {Butler -v. Butler, 1 Parson's B. 329); or, if the husband, should 
 make a provision for the support of his wife away from him, he 
 112 
 
890 LAW OF COVERTURE. 
 
 cannot claim her absence to be desertion ( Vcmleer v. Vanleer, 13 
 Penn. B. 211); or, if the husband should decide to leave the 
 country, and his wife should refuse to accompany him, it would 
 not be desertion. {Bishop v. Bishop, Zd Penn. R. 412. And vide 
 Smith V. Smith, 16 Leg. Int. 356.) In theory it is held that the 
 party must actually cease to cohabit, with the intention to desert 
 the other party, and the desertion must be, to all intents and pur- 
 poses, continued the term of time prescribed ; but in practice the 
 offending party, that is, the deserter, often obtains the divorce upon 
 his own application. For instance, the cases are very frequent 
 where the husband in the State of New York, for example, gets at 
 variance with his wife, and wishes to be freed fi'om her, whereupon 
 he abandons her and goes into one of the western states, remains 
 there the requisite time, and then complains that his wife has 
 deserted him, and applies for a divorce, and, upon complying 
 technically with the practice of the court, he obtains his decree ; 
 the fact being all the while that his forsaken and deserted wife 
 would rejoice to follow and cohabit with him, if he would but 
 jpermit it. To be sure, if all the facts were got before the court, 
 the application would be denied ; but, as a general rule, the wife 
 has no notice of the proceedings until the matter is ended and the 
 divorce granted. 
 
 § 678. As a general rule in these cases suggested in the closing 
 paragraphs of the last section, the husband bases his application 
 upon the ground that he has seen fit to emigrate to the new state 
 in order to better his condition, and his wife, not following him, is 
 guilty of desertion. But even if the fact was as he affirms, his 
 wife might not be guilty of desertion within the meaning of the 
 statute. lii a case arising under the Vermont statute, Eedfield, 
 Ch. J., said : " While we recognize fully the rights of the husband 
 to direct the affairs of his own house, and to determine the place 
 of the abode of the family, and that it is in general the duty of the 
 wife to submit to such determinations, it is still not an entirely arbi- 
 trary power which the husband exercises in those matters. He must 
 exercise reason and discretion in regard to them. If there is any 
 ground to conjecture, that the husband requires the wife to reside 
 where her health and her comfort will be jeoparded, or even where 
 she seriously believes such results will follow which will almost of 
 necessity produce this effect, and it is only upon that ground that 
 she separates from him, the court cannot regard her desertion as 
 
GROUNDS FOB AN ABSOLUTE DIVORCE. 891 
 
 pontinued from mere willfulness." {Powell v. i Powell, 29 Vt. B. 
 148, 150.) And a similar doctrine has been held by the courts in 
 Pennsylvania and in Wisconsin. {Bishop v. Bishop, 30 Penn. R. 
 412. Gleason v. Gleason, 4 Wis. R. 64. Tide also Hardenhurgh 
 V. Eardenlurgh, 14 Cal. R. 654.) If the husband, in good faith, 
 undertakes to change his residence, and there is no good and legal 
 reason why his wife should objept to it, and, notwithstanding, she 
 refuses to accompany him and stays behind, the rule would be 
 different, and it might be regarded as a case of desertion. ( Vide 
 Walker t. Leighton, 11 Foster's R. 111.) 
 
 It seems there may be cases of literal abandonment of the husband 
 by the wife, and yet not amount to desertion, so as to justify a 
 divorce. For example, where the absence of the wife is occasioned 
 by the ill-treatment or neglect of the husband, and vice versa. 
 {Gray v. Gray, 15 Ala. R. 779, 784, 785.) Upon this point, it 
 was said in a Maryland case, " if a man fails to supply his wife 
 with such necessaries and comforts of life as are within his reach, 
 and by cruelty compels her to quit him and seek shelter and pro- 
 tection elsewhere, we should have no hesitation in saying it would 
 be as much abandonment of her by him as if he had deserted her 
 and gone away himself." {Levering v. Zeveri/ng, 16 Md. R. 213, 
 219.) It is observed here that the court intimates that the wife 
 might be divorced on account of the abandonment by her husband ; 
 and the same doctrine has been maintained in Connecticut and 
 North Carolina. ( Vide Reeve's Dom. Rel. Zd ed. 327. Wood v. 
 Wood, 5 Ired. R. 674.) 
 
 Willful neglect without desertion in the State of California is a 
 ground of divorce. ( Washburn v. Washburn, 9 Cal. R. 475.) 
 
 § 679. In several of the states habitual drunkenness for a speci- 
 fied time is a ground of divorce a vinculo matrimonii. Thus, in 
 the State of Connecticut, the superior court may grant an absolute 
 divorce on the ground of the " habitual intemperance " of the party, 
 without specifying the length of time during which the habit must 
 exist in order to constitute the offense {Gen. Stat. 1866, tit. 13, ch. 
 3, § 32); and, by the statutes of Nebraska and Nevada, it is only 
 necessary to show that the party is an " habitual drunkard," regard- 
 less of the duration of the habit, except that it must, of course, 
 exist long enough to become "habitual" or confirmed. {Rev. 
 Stat. Nelraska, 1866, ch. 16, § 6. Lams of N&uada of 1861, ch. 
 33, §.22.) 
 
LAW OF COVERTURE. 
 
 In the State of Iowa, "habitual drunketiness " is the cause stated 
 {Rev. Laws of 1860, p. 429); and the provisions of the Indiana 
 statxite are^ in substance, the same. (2 Mev. Stat, 1862, ch. 6, § 7.) 
 
 In Minnesota and Missouri, the provision is, the "'habitual drunk- 
 enness" of the party for one year next preceding the bringing of 
 the action. {Gen. Laws of Minn, of 1858, ch. 63, § 7. Gen. Stat, 
 of Mo. of 1865, ch. 114, § 1.) 
 
 In the State of Illinois the ground is, " habitual drunkenness for 
 the space of two years ", (1 Geji. Stat, of 1858, p. 150, § 1) ; and, 
 in Oregon, the provision is, " habitual gross dninkenness, contracted 
 since marriage, and continuing for two years prior to the commence- 
 ment of the suit." {Gen. Stat.: 1864, ch. 5, § 491.) 
 
 In the State of Kentucky the wife is entitled to a divorce a vin- 
 culo matrimonii on the ground of " confirmed drunkenness on the 
 part of the husband not less than one year's duration, accompanied 
 with a wasting ot his estate, and without any suitable provision 
 for the maintenance of his wife and children." (2 Jiev. Stat. p. 
 17, art. 3, § 1. And vide McKay v. McKay, 18 jB. Man. E. 8.) 
 
 In order to constitute the offense of " habitual drunkenness,", 
 within the meaning of the law, it is not necessary that the party 
 be drunk all the time. If there is a fixed habit of drinking to 
 excess to such a degree as to disqualify a person from attending 
 to his business during, the principal portion of the time usually 
 devoted to business, it is " habitual drunkenness," although the 
 person may, at intervals, be in a condition to attend to his business 
 affairs. {Mahone v. MahoTte, 19 Gal. R. 626, 628.) But there ig, 
 in general, little or no danger of the person prematurely regarding 
 his or her spouse as a drunkard, for the last person to learn that 
 a man is a .drunkard is himself, and the next to the last person to 
 find it out is his wife. 
 
 § 680. In. a few of the states, "personal indignities, rendering 
 life burdensome," is made a ground of divorce a vinculo matri- 
 monii. This is the law of Oregon {Gen. Stat.. 1864, ch. 5, § 491) ; 
 and in the States of Minnesota and Missouri the law is the same, 
 except the language of the statute is "intolerable indignities." 
 {Gen. Stat, of Minn. 1858, ch. 53. Gen, Stat, of Mo. 1865, ch, 
 114, § 1. And vide Chatham v. Ghatha,rh, 10 Mo. R. 296.) In 
 Kentucky the provision is, "habitually behaving, toward her by 
 the husband for not less than six months in such an inhuman 
 manner as to indicate a settled aversion to her, and to destroy per- 
 
eROUNDS FOR AN ABSOLUTE BIVORCE. 893 
 
 manently her peace and' happiness." (2 Bev. Stat. f. 17, art. 3, 
 § 1.) And in Pennsylvania the provision is, where the husband 
 shall have " offered such indignities to her person as to render her 
 condition intolerable, and life burdensome, and thereby force her 
 to -withdraw from his house and family." (6 SmitNs Laws, 286, 
 And vide Butler v. Butler, 1 Pars. B. 329. Light y. Light, IT 
 Serg. <& Howie's B. 273.) In Connecticut the language of the 
 statute is, " such misconduct as permanently destroys the happiness 
 of the petitioner, and defeats the purposes of the marriage rela- 
 tion.''- {Gm. Stat. 1866, tit. 13, ch. 3, § 32.) In these cases the 
 provision is in favor of the wife as a general rule, pre-supposing 
 that there is no occasion for such relief for the husband^ although 
 in Boiiie instances the statute makes the offense mutual; 
 
 An indignity to the person may be offered without striking the 
 body, or even touching it in a rude and offensive manner. Con- 
 tumelious words, especially when accompanied with a contempt- 
 uous demeanor, toward a person, may amount to an indignity 
 which would be felt by a sensitive mind with far keener anguish 
 than would be inflicted by a blow. ( Vide Cobh v. Cobb, 2 Jdnes^. 
 Eq. R. 392.) It is impossible to lay down any rules that will 
 apply to all cases in determining what indignities are grounds of 
 divorce because they render the condition of the injured party 
 intolerable. The habits and feelings of different persons differ so 
 much that treatment which would produce the deepest distress 
 with one would make but a slight impression upon the feelings of 
 the other. It is obvious, therefore, that each case must be deter- 
 mined according to its own peculiar circumstances. ( Vide Hooper 
 V. Hooper, 19 Mo. B. 355. Bowers v. Bowers, Ih. 351. Shell v. 
 Shell, 2 Sneed's B. 716.) 
 
 In some states there are other causes for an absolute divorce than 
 those already mentioned, and sometimes the matter is in the dis- 
 cretion of the court. Thus, in Missouri, the pregnancy of the wife 
 before marriage, or the common vagrancy of the husband, is a 
 cause for divorce. {Gen. Stat. 1865, ch. 114, § 1.) In jSTorth 
 Carolina, after naming two causes, the statute aads,. " or other just 
 cause for divorce, at the discretion of the court." {Bev. Code of 
 1856, ch. 39, §§ 2, 3. Vide Scroggins v. Soroggins, 3 Dev. B. 535.) 
 And in Illinois the statute enacts that, in addition to the causes 
 specified, courts of chancery in the state " shall have full power 
 and authority to hear and determine all causes for divorce not pro 
 
894 LAW OF COVEBTURE. 
 
 vided for by, any law of this state." (1 Oen. Stat, of 1858, j). 151, 
 § 8. But vide Vignas v. Vignas, 15 III. B. 120.) In the State 
 of Maine the statute provides that " a divorce from the bonds of 
 matrimony may be decreed by any justice of the supreme judicial 
 court, when, in the exercise of a sound discretion, he deems it 
 reasonable and proper, conducive to domestic harmony, and con- 
 sistent with the peace and morality of society." {Rev. Stat. 1857, 
 ch. 60, § 2. And vide Anonymous, 27 Maine R. 563. Richer v. 
 Ridker, 29 il. 281. Small v. Small. 31 ib. 493. Motley v. Motley, 
 Ih. 490.) These cases in the discretion of the court are often very 
 embarrassing and difficult ; but it is held that the public has an 
 interest in them, and that the parties cannot be their own judges, 
 but that the court must decide when so many interests are involved. 
 ( Vide Inskup v. Inshup, 5 Iowa R. 204.) 
 
 In the State of New York it has been decided that the supreme 
 court has no inherent power to declare a marriage contract void, 
 or to decree a limited or an absolute divorce. Whatever power it 
 possesses is given by statute ; and it can exercise no power on the 
 subject of divorce except what is expressly specified in the statute. 
 Therefore, it was held, that the court has no jurisdiction to declare 
 a marriage void on the ground that a decree for divorce was 
 obtained against the defendant by her former husband for adultery, 
 in which decree she was forbidden to marry again until her said 
 husband should be dead, and that, in disobedience of this provision, 
 she and the present plaintiff went to another state and were there 
 married. {Peugnet v. Phelps, 7 Am. Law Reg. [N. xSl] 124. S. C. 
 48 Ba^l. R. 566.) 
 
 § 681. In a majority of the states of the Union, the causes for 
 a divorce a vinculo matrimonii are quite limited, but they have 
 in addition to this what is called a divorce a mensa et tlwro or 
 " from bed and board." This process does not make the marriage 
 void cih i/nitio, nor does it dissolve the relation of husband and 
 wife. It simply operates to separate the parties and in most 
 other respects the marriage relation remains intact. Very strong 
 objections have been ui'ged against this judicial separation, and in 
 several of the states the distinction between divorces a mensa et 
 thoro and a vinculo matrimonii is no longer kept up. Such is-the 
 case in "Vermont, Connecticut, Ohio, Indiana, Missouri, Iowa, 
 Minnesota, Nebraska, Nevada, Oregon, and perhaps in some others. 
 While in New York, Massachusetts, New Jersey, Michigan, Ken- 
 
THE ACTION FOR DIVORCE. 895 
 
 tucky, Mississippi, Louisiana, North Carolina, and others, divorces 
 a mensa et ihoro axe granted for the usual common law causis and 
 causes specified in the statute, such as cruelty, willful desertion, 
 refusal to provide for the wife and the like. ( Vide the statutes of 
 the several states.) 
 
 The policy of these limited divorces is indeed questionable. 
 They place the parties " in the undefined and dangerous characters 
 of a wife without a husband and a husband without a wife," and 
 "in a situation where there is an irresistible temptation to the 
 commission of adultery, unless they possess more frigidity or more 
 virtue than usually falls to the share of human beings." It is not 
 necessary to dwell upon this species of divorce in this place, as the 
 remarks which have been made respecting cruelty, desertion and 
 the other causes specified, where they are grounds of divorce a 
 vinculo matrimonii, are equally applicable to the subject where 
 they are grounds of divorce simply a mensa et thoro. 
 
 CHAPTER XLIII. 
 
 THE ACTION FOE DIVORCE — THE LAW OF DOMIOaE — THE DEFENSE TO 
 
 THE ACTION CONNIVANCE — CONDONATION — ^EECEIMINATION — ^WIFE's 
 
 ADVANCES PENDING SUIT. 
 
 § 682. The proceeding in this country to procure a divorce, 
 either a vinculo matrijnonii, or a mensa et tJioro, is by process in a 
 court of equity, or, in those states where law and equity are admin- 
 istered by the same tribunal,' by the usual process in an action at 
 law. Where the action is instituted by the husband against the 
 wife, the process is similar to that of an action between other par- 
 ties, except that the wife must appear and defend by guardian ; 
 and if the action is brought by the wife, the process is the same as 
 in other cases, except that the plaintiff prosecutes by prochien 
 ami, or by guardian, although by the codes of practice in several 
 of the states the wife may prosecute or defend alone, when the 
 action is for a divorce. If the parties are minors, plaintiff or 
 defendant, there must be a prochein ami, or guardian, as the case 
 may be, the same as in other cases where the parties are infanta. 
 (TFbod! V. Wood, 2 Paige's €h. H. 108. JBut vide Jones v. Jones, 
 
896 LAW OF COVERTURE. 
 
 18 Mame B. 308.) In no case can a divoTce be allowed except 
 tlie husband and wife be both parties to the action, the one as 
 plaintiff and the other as defendant, and in some of the states it 
 is required that the libellant or plaintiff shall sign 'the petition or 
 process personally, and not by attorney. ( Vide PMIhridk v. Phil- 
 brick, 27 Vt. B. 786. Winslow v. Winslow, 7 Mass. B. 96. Gould 
 V. Gould, 1 Mete. B. 382.) The statute of Massachusetts requires 
 that "every libel shall rbe signed by' the libellants, if of sound 
 mind and of legal age to consent to marria,ge; otherwise it may be 
 signed by his- or her guardian, or by any person admitted by the 
 court to prosecute the same as next friend of the libellant." {Gen. 
 Stat. ch. 107, § 16.) ■ In case either party is insane, of course the 
 insane person must prosiecute or defend by guardian, prochein 
 ami, or committee. But, as a general thing, the practice, in case 
 the parties are infknts, insane or laboring under other disability, is 
 regulated by statute, and therefore the local statutes of the state 
 .must be consulted in order to determine the rale. It is obvious 
 that there may be cases where a divorce should be procured, even 
 in behalf of a person who is insane at the time of the decree, or 
 against a party who is in like manner insane, and provision is 
 made for the action in such cases. {Yide Crump v. Morgan, 3 
 Ired. Eq. B. 9. Brown v. Westbrooh, 27 Ga. B. 102. Clement 
 V. Mattison, 3 Bioh. B. 93. Montgomery v. Montgomery, 3 Barb. 
 Ch. B. 132.) The way and manner of obtaining jurisdiction of 
 the person of the defendant in divorce cases is the same as in 
 other cases. It is important and requisite that the defendant have 
 notice of the proceeding, and an opportunity to defend the action, 
 before a decree passes against him ; and, as a general rule, if the 
 process by which the action is commenced is not personally served 
 on the defendant, the divorce would be irregular. {Bandall v. 
 Bandall, 7 Mass. B. 502. Zabbtiere v. Labotiere, 8 ib. 383. 
 Schetzler v. Schetzlei', 2 Edw. Ch. B. 584. Phelps v. Phelps, 7 
 Paige's Ch. B. 150. Townsend v. Townsend, 21 III. li. 540. 
 Smith V. Smith, 20 Mo. B. 166. Welch v. Welch, 16 Ark. B. 527.) 
 It will not be sufficient to leave the process at the usual place of 
 abode of the defendant, the defendant being absent at the time. 
 {Bandall v. Bandall, supra. And vide Smith v. Smith, 9 Mass. 
 B. 422. Alexander v. Alexander, 2 Swab. <& Tris. B. 95.) This is 
 the general rule where the party to be served is within the juris- 
 diction of the court ; but where the defendant is absent from the 
 
THE ACTION FOB DIVORCE, 897 
 
 state in which the action is brought, provision is usually made by- 
 statute for a substituted service of the process, by publication or 
 the like. In all these cases the provision of the statute must be 
 strictly pursued. {Smith v. Smith, 4 Oreem's [Iowa] B. 266. 
 Jmm V. Jenne, 1 Mass. E. 94. Ditson v. Ditson, 4 E. I. E. 87, 
 102, 103. Tide Bachelor v. Bachelor, 1 Mass. E. 256.) 
 
 § 683. But a very nice question is often presented as to the 
 extent to which a court of a sister state may have power to dissolve 
 the marriage relation, for any cause hot arising within the juris- 
 diction of the court, or while the parties were domiciled within that 
 jmisdiction. In respect to this it has been laid down as a princi- 
 ple of general law, that the jurisdiction over causes of divorce 
 depends, primarily at least, upon the domicile of the parties at the 
 time such alleged cause occurred ; but it is not indispensable that 
 the act should, in all cases, have occurred within the local jurisdic- 
 tion ; if it occur elsewhere, while the parties, or one of them, is 
 temporarily abroad, it will be referred to the place of the fixed 
 domicile of the parties, and will then have the same effect as if com- 
 mitted within that jurisdiction. {Dorsey v. 3orsey, 7 Watfs E. 
 349. Brett v. Brett, 5 Met. E. 233.) Judge Story says : " The 
 doctrine now firmly established in America upon the subject of , 
 divorce is, that the law of the place of the actual hona fide domicile' 
 of the parties gives jurisdiction to the proper courts to decree a 
 divorce for any cause allowed by the local law, without any 
 reference to the law of the place of the original marriage, or to the 
 place where the offense for which the divorce is allowed was com- 
 mitted." (Story's Confidct of Laws^ % 230. Tide also Tolen v. 
 ToUn, 2 Blaohf. E. 407. Fellows v. Fellows, 8 N. H. E. 160. 
 Furman v. Furmwn, 3 West. Lom Jov/r. 475. Maguire. v. 
 Maguire, 1 Dam^s B. 181. Harrison v. Harrison, 19 Ala. E. 
 499.) .And Hosack observes that this doctrine "seems to be iat 
 once the most equitable in itself, and to afibrd the best guaranty 
 of the lona fides of the parties in seeking a judicial dissolution of 
 the marriage." {Ebsack's Confiict of Laws, 286.) This seems to 
 be the rule in England. " A suit to dissolve the tie of marriage 
 ought to be entertained only by the courts of the country in which 
 the parties whose marriage is to be dissolved are iona fide domi- 
 ciled according to the well known law by which the succession to 
 movable estate is regulated in cases of intestacy" (Fraser's 
 Confiict ofZaws in cases of Divorce, 10.) 
 113 
 
LAW OF COVERTUHE. 
 
 In several of the American States, statutes exist giving the courts, 
 in express terms, jurisdiction to grant divorce for causes accruing 
 out of the state, and while both parties were domiciled in another 
 state ; but as a general rule the courts have no jurisdiction over a 
 divorce ease, regardless of the place where the cause accrued, 
 except one of the parties at least, has an actual and lona fide 
 residence within the territorial jurisdiction of such courts ; it is 
 sufficient, however, if one of the parties is domiciled in the state 
 where the proceedings are instituted. It may also be laid down 
 as a general rule that the courts have no jurisdiction to grant 
 divorces for causes accruing out of the state, when such causes 
 would not afford, just ground for dissolving the marriage relation, 
 if they had accrued within the state. Undoubtedly a state might 
 allow its courts to grant such divorces to persons domiciled there, 
 but they would have no effect in any other forum, than in that in 
 which they were granted. The subject-matter of a divorce suit is 
 the act which constitutes the cause of action, and that must be a 
 breach of the law of the state where the parties are domiciled at 
 the time it occurs ; or it must be an act which is a cause for a 
 divorce in the state where the plaintiff resides at the time of the 
 suit. For instance, cruelty or desertion is made ground of divorce 
 a vinculo in several of the states, but the divorce will not be 
 granted in any state where such act is not a ground of such divorce, 
 though the cause of action may have accrued in a state where it 
 was ground for divorce. But if the action is brought in a state 
 where the act is ground of divorce, it will be granted, though the 
 cause of action arose in a state where it was not a ground of 
 divorce. Mr. Bishop says this is the universal doctrine, and that 
 it prevails alike in the English, Scotch and American courts. (2 
 Bislwp on Marriage aiid Divorce, § 171, referring to 1 Burge Col. 
 <& For. Laws, 680. 1 Fras. Dom. Eel. 658. Duntze v. Leroelt, 
 Ferg. R. 68. 3 Fng. Eg. B. 360. 379. Harding v. Alden, 9 
 Oreenl. B. 140. Clarh v. Glarh, 8 N. E. B. 21. Earteau v. 
 EarteoM, 14 Pick. B. 181. Thompson v. The State, 28 Ala. B. 
 12. Eanlerry v. Eanherry, 29 il. 719. Ratcliff v. Batcliff, 1 
 Swab. c& Tris. B. 467, 470. Brodie v. Brodie, 2 ih. 259.) 
 
 § 684. But exception has been taken to the doctrine of the last 
 section that the place where the offense was committed is imma,- 
 terial. Mr. Bishop thinks there is no conflict of authority upon 
 the point, but Judge Kedfield, one of the learned editors of the 
 
TEE ACTION FOB DIVOBCE. 899 
 
 American Law Eegister (new series), in a very able article, pub- 
 lished in that periodical under the head of " Conflict of Laws 
 affecting Marriage and Divorce," says : " The validity of wills, and 
 the rules of divorce, so far as personalty is concerned, depend 
 upon the domicile of the decedent at the time of the decease ; and 
 the courts of the place of domicile have the exclusive jurisdiction 
 to determine what the law is upon these points, and the decision of 
 any other court, not having the proper jurisdiction in these ques- 
 tions, is of no validity. This has too often been decided, and 
 there is too little question upon the point to justify the citation of 
 authorities in regard to probate proceedings. And the course 
 of decision is equally uniform in regard to decrees of divorce. 
 The cause of action is entirely local, depending upon the violation 
 of the law of the place of domicile at the time, and can only be 
 enforced in that forum and under that law, the same as any other 
 corrective penal consequence. 
 
 " We may therefore conclude, we think, that when any court 
 attempts to take cognizance of an action for divorce, based upon 
 facts accruing while the parties were domiciled without the 
 forum, they are acting wholly without jurisdiction. Such acts 
 could not be a violation of the laws of any state where the parties 
 were not domiciled. For, if they could be so viewed, they might 
 equally be regarded as a violation of the laws of all other states, 
 and there would be no security. An act which, according to the 
 law of the place of domicile, was indifferent, or to which no penal 
 consequences attached at the time of perpetration, if it could be 
 treated as a violation of the laws of all%reign states, or of the con- 
 tract of marriage, and of its duties and obligations, as construed, 
 measured or defined by the laws of all other states, might become 
 the instrument of forfeiting the most important and vital interests 
 pertaining to social life. The absurdity of such a construction is 
 too glaring to require illustration. To be consistent, foreign courts, 
 if they assume to take jurisdiction of causes of divorce, accruing 
 while the parties were domiciled abroad, ought to judge the matter 
 according to the law by which the parties were governed at the 
 time of the commission of the acts. * * * No court, in any 
 civilized country, would presume to determine the rights of the 
 parties, in relation to torts or breaches of contract, by a law to 
 which th§y owed no allegiance, and to which they had no refer- 
 ence, even in intent, at the time the facts occurred. And it would 
 
900 LAW OF COVERTURE. 
 
 be an equal violation of principle to apply any different rule to 
 causes of divorce from what is of universal application to all transi- 
 tory causes of action, when a cause of divorce is attempted to be 
 determined in another forum." (3 Am. Lorn Reg. \_N. 8^ 207, 
 208, 209.) 
 
 The reasoning of Judge Eedfield is certainly sound, and is in 
 strict accordance with the decisions of England and most of the 
 American States ; the contrary doctrine has only been held in an 
 occasional state. It may, perhaps, be regarded as the general rule, 
 having its exceptions in few states, that one state vdll not attempt 
 to enforce the laws of another in regard to the grounds of granting 
 divorces a vinculo / nor will one state attempt to grant divorces 
 of that character, for causes accruing while the parties were domi- 
 ciled in another. {McDermoWs appeal, 8 Watts di Serg. H. 251. 
 Edwa/rds v. Green, 8 La. An. B. 317. Hare v. Hare, 10 Texas 
 ^.355,357.) 
 
 § 685. With very few exceptions, the courts of no state will 
 grant a divorce in favor of a party who is not at the time a hona 
 fide resident of the state ; and in most of the states the statute 
 requires that the complainant shall be a resident of the state a cer- 
 tain specified length of time before the courts can take cognizance 
 of his case. Thus, in Connecticut, the petitioner must have 
 steadily resided in the state three years next before the date of the 
 petition. ( Vide Sawtelle v. Sawtelle, 17 Conn. JR. 284.) In Iowa, 
 the petitioner must have been for the last six months prior to pre- 
 senting his petition a resident of the state, or he can take* nothing 
 by his petition ; and the residence must be intended as a perma- 
 nent one, and not merely a temporary sojourn for six months. 
 {Hinds V. Hinds. 1 Iowa M. 36, 49.) In Illinois, no person is 
 entitled to a divorce under the provisions of the statute who has 
 not resided in the state one whole year previous to filing his or her 
 bill or petition, unless the offense or injury complained of was 
 committed within the state, or while one or both of the parties 
 resided in the state. ( Vide Ashlaugh v. Ashlaugh, 17 III. B. 476.) 
 In the State of Pennsylvania, no person is entitled to a divorce 
 from the bond of matrimony who is not a citizen of the state, and 
 who shall not have resided therein at least one whole year previous 
 to the tiling of his or her petition or libel. In Kentucky, suits for 
 divorce must be brought in the county where the wife usually 
 resides, if she has a residence in the state ; if not, then in the 
 
DEFENSE TO A DIVORCE SUIT. 901 
 
 county of the husband's residence ; and no such suit can be brought 
 by one who has not been a continual resident of the state for a 
 year next before its institution. (2 Bev. Stat. p. 17, art. 3, § 4.) 
 In Tennessee it is provided by statute tliat " no person shall be 
 entitled to a divorce from the bond of matrimony, by virtue of 
 this act, who is not a citizen of this state, and who has not resided 
 therein at least one whole year previous to filing his or her petition." 
 {Vide Person Y. Person,^ Humph. R. 148. Ficlcle v. Fickle^ 5 
 Terg. B. 203.) And without occupying space with this matter, 
 it may be affirmed that in all or nearly all of the remaining states, 
 the plaintiff must be an actual and lona fide resident of the state, 
 and must have been such resident for a specified time before com- 
 mencement of the suit, in order to obtain a sentence of divorce. 
 
 As a general rule the practice is the same in actions for a divorce 
 a mensa et thoro as in those for the divorce a vinculo mairimonu, 
 and all of the principles governing the proceedings and the parties 
 are similar in both cases ; so nearly so, at all events, as to render 
 it unnecessary to point out in this place the slight difference which 
 may exist in some localities. What has been said therefore in 
 respect to the divorce a vinculo may be generally and in most par- 
 ticulars applied in case the proceeding is for a divorce a mensa et 
 thoro. 
 
 § 686. The pleadings, practice and evidence in a divorce suit, 
 are in some respects peculiar, and much may be said upon the sub- 
 ject, but it is not consistent with the objects of this treatise to 
 enter upon the discussion here; generally the process and proceed- 
 ings in divorce cases are the same as those in other cases on the 
 equity side of the court. There is this peculiarity, however, which 
 may be noted in a word, that the decree will never be granted 
 except upon evidence ; and never upon the admissions of the party. 
 Although the suit may go by default, the plaintiff must prove his 
 or her case. The defenses, however, which may be set up in bar 
 of a divorce, should be briefly stated. One defense which is 
 available in all divorce causes is the connivance or corrupt consent 
 of the complainant to the offense charged upon the party accused. 
 In such a case, "the rule of law comes in ^s,t volenti non fit 
 injuria, no injury has been done, and therefore there is nothing 
 to redress." {Forster V. Forster, 1 Hag. Con. B. ^144.) What is 
 Bufiicient proof of connivance or collusion to bar the divorce is 
 sometimes attended with difficulty, because the intent of the party 
 
902 ZAW OF COVEETURK 
 
 enters largely into the subject. "Different men haTe different 
 degrees of judgment, and judge differently, nor are we to' judge 
 by the event. A court of justice must look qiio animo the step is 
 taken." {Roar v. Hoar, 3 Ect,g. Eg. R. 137. Moorsom v. Moor- 
 som, II. 87. Turton v. Turton, II. 338.) Lord Stowell remarked : 
 " It is true, a husband is not baiTed by a mere perinission of oppor- 
 tunity for adultery, nor is it every degree of inattention on his 
 part which will deprive him of relief; but it is one thing to permit 
 and another to invite ; he is perfectly at liberty to let the licen- 
 tiousness of the wife take its full scope ; but that he is to contrive 
 the meeting, that he is to invite the adulterer, then to decamp and 
 give him the opportunity, I do think amounts to legal prostitution." 
 {Tvmmings v. Timmings, 3 Hobg. Ec. R. 76. And vide Phillips, 
 V. Phillvps, 1 Rol. R. 144.) And Dr. Lushington said that the 
 court could conceive of a case that might " arise of such willful 
 neglect or rather exposure, as might, without proving actual con- 
 nivance, possibly bar the husband of all remedy by a divorce. 
 A husband might introduce his wife to society so abandoned, and 
 expose her to risks so great, as to render a deviation from the paths 
 of chastity the most probable if not the necessary consequence. 
 Under such circumstances perhaps the court would not wait for 
 proof of actual connivance on the part of the husband, but would 
 hold him to the consequences of his own conduct, where the adul- 
 terous connection arose from the society and temptations to which 
 he had introduced his wife." {Hcmris v. Harris, 2 Hag. Eg. R. 
 376.) It is doubtful whether any mere negligence or carelessness 
 on the part of the plaintiff 'would be sufficient to bar the divorce, 
 unless it was of such a nature as to lead to the conclusion that it 
 was intended to effect the result. Connivance is from the Latin 
 conniveo, literally to wink, to close the eyes upon a fault, or to for- 
 bear to see it, to wink at it ; but generally there must be some overt 
 act of the party, at least an intent to effect the result ; connivance 
 of this character destroys all claim to remedy by way of divorce, 
 on the obvious principle that no man has a right to relief from a 
 court for an injury which he was chiefly instrumental in effecting 
 himself. A man must come with pure hands hitaself in this 
 respect, before he can expect due purity on the part of his wife, 
 and the same may be said of the wife. The petition for divorce 
 will always be dismissed when it appears that the offense com- 
 plained of was procured through the positive, intentional instru- 
 
DEFENSE TO A DIVORCE SUIT. 903 
 
 mentality of the complainant. {Myers v. Myers, 41 Barh. S. 114, 
 120. Timmings v. Timmings, 3 Mag. Ec. R. Y6.) Sometimes 
 this is provided by the statute, and.tlie divorce is denied unless 
 it appears that the act charged was " committed without the con- 
 sent, connivance, privity or procurement of the plaintiff," and 
 this is what is usually understood by connvoance which is a bar 
 to the action of divorce. 
 
 § 687. Another defense to the action for a divorce is what is 
 called condonation or the forgiveness of the offense chai-ged as the 
 cause for the divorce. The connivance of the party is a bar, 
 because no injury has been sustained by- him ; and condonation is 
 a bar, because the injury is forgiven. 
 
 The definition, as given by the decisions, is " a blotting out of 
 the offense imputed, so as to restore the offending party to the 
 same position he or she occupied before the offense was conimit- 
 ted;" and Lord Chancellor Chelmsford, while assenting to the 
 correctness of the definition, said : " I think that the forgiveness 
 which is to take away the husband's right to a divorce must 
 not fall short of reconciliation, and that this must be shown by 
 the re-instatement of the wife in her former position, which ren 
 ders proof of conjugal cohabitation or the restitution of conjugal 
 rights necessary." {Keats v. Keats, 1 &wah. & Tris. B. 334, 346, 
 357. And vide BatcUff v. BatcUff, Ih. 467, 473.) 
 
 Mr. Bishop gives the definition thus: "Condonation is the 
 remission of a matrimonial offense known to the remitting party 
 to have been committed by the other, on the condition subsequent 
 that ever afterward the party remitting shall be treated by the 
 other with conjugal kindness." (2 Bish. mi Mar. and Div. § 34.) 
 But, without seeking for any hypercritical meaning of tlie word, it 
 is enough to say that condonation is the full and free forgiveness, 
 of the offense which is the ground of the application for a divorce : 
 and, of course, there can be no condonation, unless there is an 
 offense, nor unless the party has knowledge that the . offense has 
 been committed- 
 Condonation may be expressed, or it may be presumed from the 
 conduct of the parties. There may be positive evidence of the 
 reconciliation of the parties ; or the forgiveness of the offense by 
 the party injured may be implied by the cohabitation of the par- 
 ties, with a full knowledge of the facts by the party aggrieved. 
 Condonation is usually established by proof of cohabitation ; and, 
 
904 LAW OF COVERTURE. 
 
 where a man and wife live together in the Bame honse, the pre» 
 sumption is that they were on terms of matrimonial- cohabitation. 
 {Beele v. Beele, 1 Hag. Eg. B. 789, 796.) But, although condona- 
 tion may be inferred from cohabitation, the presumption may be 
 rebutted by proof of the accompanying circumstances, provided 
 they are such as shall prove that, notwithstanding the parties dwell 
 in the same house, they do not cohabit as husband and wife. 
 ( Whispell V. Whispell, i Barb. E. 217.) 
 
 Chief Justice Parsons said : " The true import of the rule, in 
 my opinion, is, that the cohabitation of the husband, afber the com- 
 mission of the offense, and after he Relieves, on probable evidence, 
 the guilt of his wife, is conclusive evidence of the remission. For 
 he cannot be considered as having impliedly forgiven a crime 
 which he does not believe to have been committed. And without 
 that belief he cannot have knowledge of the crime ; for he may 
 have received the information without giving it credit." {Anony- 
 mous, 6 Mass. B. 147, 148.) It is often a difficult question to 
 determine whether the cohabitation is after a knowledge of the 
 offense. Said Lord Stowell : " A husband has suspicions ; he has 
 some intimations ; he has enough to convince his own mind, but 
 not enough, to institute a legal case. In that distressing interval, 
 his conduct is nice ; and it is difficult to refrain from cohabitation, 
 as the means of 'discovery would be frustrated ; and, if he continues 
 cohabitation, it then becomes liable to that species of imputation 
 which has passed to the disadvantage of this gentleman." {Elwes 
 V. Elwes, 1 Hagl Con. B. 269, 292.) It is requisite that the com- 
 plainant be not only morally satisfied of the guilt of his spouse, 
 but that he should have such a knowledge of the fact as to justify 
 him in seeking legal redress, before his cohabitation can be such 
 evidence of condonation as to bar his divorce. Especially is 
 this the rule, when the wife is the complainant ; and it has been 
 held that her cohabitation with her husband after his private con- 
 fession to her of an act of adultery, biit which she had no means 
 of proving, so as to justify ber in leaving his bed and board, and to 
 protect her friends who might receive and harbor her against his 
 will, is not such a condonation of the offense as will bar her suit 
 for a divorce, upon a subsequent discovery of the means of estab- 
 lishing his guilt. {Hofmire v. Hofmire, 7 Paiges Ch. B. .60. 
 And vide D^Aquilar v. D^Aquilar, 1 HaggarcPs Eoclesiastical 
 B. 17B.) 
 
DEFENSE TO A DIVORCE SUIT. 905 
 
 But that a condonation of the offense by the reconciliation of 
 the parties, -or a subsequent cohabitation with a full knowledge 
 of the facts by the injured party, is a bar to a divorce, is recog- 
 nized by the laws of most civilized countries. {Johnson v. John- 
 son, 4 Paige^s Gh. R. 460, 469. Burr v. Bwrr, 10 il. 20. Mar- 
 tin V. Martin, 15 iT. 3. H. 159, 160. Wright v. Wright, 3 Texas 
 B. 168, 187. However, condonation is but a conditional forgive- 
 ness, and a repetition of the offense revives the condoned act ; and 
 in England it has been held that to revive a condoned adultery, it 
 is not necessary that the new injury should be of the same nature ; 
 but that cruelty, desertion, or other improper conduct of the hus- 
 band toward his wife, is sufficient for that purpose. {JDurant v. 
 Durant, 1 Hag. Ec. R. 745.) But in this country the principle of 
 revival of the condoned offense, is only applied upon the commis- 
 sion of a new offense of the like nature, which would of itself 
 entitle the injured party to a divorce. {Johnson \. Johnson, supra. 
 But vide S. O. 14 Wend. R. 637. Smith v. Smith, 7 Paige's Gh. 
 E. 434. Whi»peU v. Whispell, 4 Bari. R. 217.) 
 
 § 688. The last general defense to an action for a divorce to be 
 noticed is that of recrimination ; that is, the guilt of the complain- 
 , ant of the same offense charged upon the defendant as the ground 
 of divorce. The plaintiff, in this respect, must cSme into court 
 with clean hands. This doctrine, said Lord Sto well, has its founda- 
 tion in reason and propriety. It would be hard if a man could 
 complain of the breach of a contract which he has violated ; if 
 he could complain of an injury, when he is open to a charge of 
 the same nature. It is not imfit, if he who is the guardian of the 
 purity of his own house has converted it into a brothel, that he 
 should not be allowed to complain of the pollution which he him- 
 self has introduced ; if he, who has first violated his marriage vow, 
 should be barred of his remedy, the parties may live together, and 
 find sources of mutual forgiveness in the humiliation of mutual 
 giiilt I {Beele v. Beebe, 1 Edg. Ec. R. 789, 790. And vide Mattox 
 V. Mattox, 2 Ohio R. 233.) And Chancellor Walworth declared 
 that if both parties are guilty, neither has any claim to relief; and 
 they are in that case suitable and fit companions for each other. 
 ( Wood V. Wood, 2 Paige's B. 108, 111.) 
 
 There is a variety of opinion and of practice as to whether a 
 divorce should be barred by proof that the complainant is guilty 
 of an offense which is naade ground of divorce, but different from 
 114 
 
906 LAW OF COVERTURE. 
 
 the offense charged against the defendant. On this question Lord 
 Stowell said: "It is certain that the wife has a right to say 'yon 
 shall not have a sentence against me for adultery if you are guilty 
 of the same offense yourself.' 'The received doctrine of compensa- 
 tion would have this effect, because both parties are in eodevi 
 delicto; but this is not so in i-ecrimination of cruelty ; the delictum 
 is not of the same kind. If the wife was the prior petens, in a suit 
 of cruelty, I do not know that she would be barred by a recrimina- 
 tion of that species, for the consideration would be very different ; 
 the court might not oblige her to cohabitation which would be 
 dangerous. Here the husband is a prior pefens in a suit of 
 adultery, and I take the general doctrine to be that a wife cannot 
 plead cruelty as a bar to divorce for her violation of the marriage 
 bed." {Chambers v. Chambers, 1 Sag. Con. H. 439. And vide 
 Cocksedge v. Cocksedge, 1 Hobertsori's li. 90, 92.) In most of the 
 states, if not all, this matter is regulated by statute. Sometimes it 
 is provided that when both parties are guilty of the same offense 
 neither shall be entitled to a divorce, and sometimes the provision 
 is such that, where several offenses are equally ground of divorce, 
 one offense may be set up in bar of a suit predicated upon another. 
 Thus, in the State of New York, adultery is ground of a divorce 
 a vinculo, and the statute provides that the divorce may be denied 
 if it be proved that the complainant has also been guilty of 
 adultery, under such circumstances as would have entitled the 
 defendant, if innocent, to a divorce. (2 Rev. Stat, part 2, ch. 8, tit. 
 3, §42. 2 Stat, at Za/rge, 151.) In case of cruel and inhuman treat- 
 ment by the husband of his wife, abandonment of the wife by the 
 husband, or such conduct on the part of the husband toward his 
 wife as may render it unsafe and improper for her to cohabit with 
 him, entitles the wife to a decree of separation ; and the statute 
 provides that the defendant may be permitted to prove, in his- jus- 
 tification, the ill-conduct of the complainant ; and, on establishing 
 such defense to the satisfaction of the court, the bill shall be dis- 
 missed. (2 Bev. Stat, part 2, ch. 8, tit. 3, § 53. 2 Stat, at Large, 
 153.) Here, in case the action is for an absolute divorce, the 
 defendant can only recriminate by charging the same offense which 
 is the subject of the plaintiff's complaint, while in case the appli- 
 cation is for a divorce a mensa et thoro the defendant may recrim- 
 inate the complainant by charging any ill-conduct on her part in bar 
 of her suit. 
 
DEFENSE TO A DIVORCE SUIT. 907 
 
 In California it has been judicially declared that " the statute 
 has specified certain acts or conduct which shall constitute grounds 
 of divorce, and so far as the matrimonial contract is concerned, the 
 courts cannot distinguish between {hem, whatever difference there 
 may be in a moral point of view. The several offenses must, 
 therefore, be held equally ple^idable in bar to the suit for divorce, 
 the one to the other, within the principle of the doctrine of recrimi- 
 nation." {Conant v. Conant, 10 Cal. R. 249, 256.) And the same 
 doctrine has been enunciated in the State of Missouri. {Neagle v. 
 Neagle, 12 Mo. R. 53. Duncan v. Dunccm, Ih. 157. And vide 
 Harjper v. Harper, 29 ib. 301.) In some states the application for 
 a divorce by the husband will be denied, though he prove the wife 
 guilty, if it appear that he had deserted her or been guilty of other 
 offenses which might not technically entitle her to a divorce a vin- 
 culo if she were herself innocent ; and in North Carolina a divorce 
 to the wife was denied on the ground solely that she had left her 
 husband and refused to live with him before he committed the 
 adultery for which she sought her divorce, (i^y v. jFoy, 13 Ired. 
 R. 90. And vide Whittington v. WMttington, 2 Dev. db Bait. R. 
 64.) And in the State of New York it was declared in one case 
 that an absolute divorce should never be granted " except when 
 the complaining party is entirely innocent, and is really aggrieved 
 by the misconduct of the other, and seeks the relief which the law 
 affords from a sincere desire to avoid a greater shame." {Hanks 
 V. Hanks, 3 Edward's Ch. R. 468. And vide Christiamherry v. 
 Christianberry, 3 Blackf. R. 202. Ryan v. Rywn, 9 Mo. R. 539.) 
 
 § 689. It has sometimes been decided that where the defendant 
 recriminates the complainant as a bar to the action, it is not neces- 
 sary for the defense to prove the recriminating charge by as strong 
 evidence as would be requisite to convict the party on a direct 
 proceeding for a divorce. {Forster v. Forster, 1 Hag. Con. R. 
 144. AsUey v. Astley, 1 Hag. Ec. R. 714.) But there would 
 seem to be no good reason for the distinction. It is true the 
 plaintiff in a divorce case should come into court with clean hands, 
 and be able to purge his own conduct of all reasonable imputation 
 of guilt; still, every person is presumed to be innocent of a 
 criminal charge until he is proved guilty ; and therefore he does 
 stand in court with clean hands, and free from the imputation of 
 guilt until the proof establishes to the contrary. There certainly 
 should be no presumptions indulged in against the complainant, 
 
908 LAW OF COVERTURE. 
 
 because the defendant is shown to he guilty of an offense which is 
 the ground of divorce. In the' first place, the onus probandi is on 
 the plaintiff to establish the guilt of the defendant, but when this 
 is established, the burden, of proof shifts; and if the defendant 
 seeks to deprive the plaintiff of his remedy by imputing a charge 
 of criminality on his part, the charge should be made good by 
 evidence which admits of no reasonable doubt. This would seem 
 to be the reasonable view, and it is in accordance with the better 
 authority. ( Vide' Stone v. Sixtne, 3 Notes Cos. 278. Goodall v. 
 Goodall, 2 Zee's R. 384. Tivrton v. Turton, 3 Hag. Ec. E. 338, 
 350. Sopwiih v. Sopwith, 2 Swab. <& Tris. E. 160, 164.) In the 
 last case cited, the. judge ordinary remarked : " It is certainly a 
 startling proposition that, if an issue be joined as to the same 
 identical fact, a different amount of evidence is necessary to sus- 
 tain the issue a6cording as the averment of that fact is made by 
 the plaintiff or defendant." 
 
 § 690. It has also sometimes been questioned whether a con- 
 doned offense may be pleaded as a defense by way of recrimina-. 
 tion. Upon this subject, Lord Stowell remarked: "A man, it is 
 true, who has forgiven adultery, cannot bring a suit; but, where 
 he complains of his wife. Will her forgiveness of his previous miscon- 
 duct make, him a proper person to receive the sentence of the 
 court? Does her act bind the court ? If both are equally guilty, 
 will her condonation make him reel/as in curia, and enable him 
 to procure a sentence ? There may be cases where a wife may, 
 by forgiveness, by cohabitation, by the reformation of the husband, 
 be so barred that an obsolete fact shall not be a defense. * * * 
 It is said, that condonation is favored because it induces the 
 parties to live together again ; but here the effect would be to 
 separate them, to shut the door more completely against a return ; 
 here, if the court does not pronounce a sentence of separation, is 
 no impossibility of a return." {Beebe v. Beebe, 1 Rag. Eg. R. 789, 
 797.) But Dr. Lushington, in a subsequent case, said : " When 
 a condonation has taken place, with a full knowledge of the facts, 
 it is said to be a conditional forgiveness. Conditional on what ? 
 On the future conduct of the husband ? Suppose he fulfills the con- 
 dition, and never after -violates the obligation of the marriage bed, ia 
 the condonation to have no other effect than to bar a suit against 
 him ? I think the effect is to make him rectus in integer, except 
 that his past transgression niay be riBvived by subsequent miscon- 
 
DEFENSE TO A DIVORCE SUIT. 909 
 
 duct." {AnicMni v. Anichini, 2 Curt. Eg. R. 210.) The doctrine 
 of Dr. Lushington was followed by Cresswell, J., in a later case 
 before the new divorce court of England. {Seller v. Seller, 1 SiBob. 
 & Tris. E. 482. But vide Ooode v. Qoode, 2 il. 253. ) Some- 
 times this question is regulated by statute, and is, therefore, deter- 
 mmed by the language of the provision making the recrimination 
 a defense. Thus, in the State of New York, the recriminatory act 
 must be proved to have been committed " under such circumstances 
 as would have entitled the defendant, if innocent, to a divorce ;" and 
 it has been held that under this provision, as a condoned offense 
 of the defendant will not entitle the complainant to a divorce, so 
 a condoned act of a similar character on the part of the complain- 
 ant will not bar the suit for a divorce. So that, when in a suit for 
 a divorce on the ground of adultery, and the defendant makes a 
 recriminatory charge in his answer, the offense of the plaintiff must 
 be set up in the same manner, and be accompanied with the same 
 allegations, as are required to be charged in a bill of complaint. 
 {Morrell v. Morrell, 1 Barb. E. 318. S. C. 3 ib. 236.) But when 
 the case was last before the court, some doubt was expressed as to 
 whether that was the true construction of the statute. Sill, J., 
 observed : " In giving construction to the forty-second section of 
 the statute concerning divorces, the justice before whom this motion 
 was argued at the special term, came to the conclusion that an 
 adultery of a complainant condoned, was no bar to a suit for a 
 divorce in his favor. That the circumstances under which the 
 adultery must be committed, to constitute a bar under that statute, 
 were absence of procurement or connivance of forgiveness, or a bar 
 arising from lapse of time. Even upon this construction of the 
 section, the plaintiff would not, in this .case, be entitled to the issue 
 to try the question of forgiveness. "We are not, however, prepared 
 to give our assent to this construction of the statute. It declares 
 that the court may deny a decree for a divorce, ' when it shall be 
 proved that the complainant has been guilty of adultery under 
 such circumstances as would entitle the defendant, if innocent, to 
 a divorce.' The circumstances meant are undoubtedly absence of 
 procurement or connivance, or any thing else which would involve 
 the other party directly or indirectlyin the guilt of the act. But 
 it seems to us that condonation and lapse of time (where they 
 have transpired) cannot appropriately, and within the meaning of 
 the statute, be taken as the circumstance.s under which a party is 
 
910 ZAW OF COVEBTUBE. 
 
 guilty ; they have no connection with the commission of the offense." 
 {Morrell v, MorreU, 3 Barb. B. 236, 24:1, 242.) The point, how- 
 ever, was considered too important to dispose of upon special 
 motion, and the question was left unsettled. But where there is 
 no statute to control the question, it does not follow because a con- 
 donation or forgiveness by the complainant will bar a suit for a 
 divorce, that it will have the same effect as a defense, by way of 
 recrimination, set up by the defendant. That must depend upon 
 the particular circumstances of the case. {Wood v. Wood, 2 
 Paige^s Ch. B. 108.) The guilt of the plaintiff in a moral sense, 
 is the same whether the offense has been condoned or not, and 
 that is probably what the law intends to say shall prevent him 
 from obtaining the divorce. ( Vide Leseur v. Leseur, 31 Barb. B. 
 330. Anonymous, 17 Abb. Pr. B. 48. B. v. B. 11 JSf. T. Leg. 
 Obs. 350. MasUn v. Masien, 15 IST. H. B. 159.) 
 
 But Mr. Bishop says : " If we look at this question in the light 
 of principle, we shall be led to the following result : After an 
 offense ias been condoned, the guilty one stands npright as to 
 his relations with the other, so long as his own conduct is correct 
 in all particulars, perhaps even when it is not fully correct. This 
 places the forgiving party under no new liberty of evil doing ; but 
 suppose the condoned offense were to operate as a recriminatory 
 bar, then the forgiving party would have practically obtained a 
 license for himself when he suffered the condonation to pass. 
 And surely any construction of either a common law or a statutory 
 rule the effect of which is to license profligacy or other ill conduct 
 in the matrimonial relation, is to be strenuously avoided." (2 
 BisJuyp's Ma/rriage and Divorce, § 100.) 
 
 It may be suggested that, although the case should go by default, 
 if it appears by the plaintiff's own showing that there is a good and 
 valid defense to the action, the divorce will not be granted. 
 {Timmings v. Timmmgs, 3 Hag. Ec. B. T6.) 
 
 § 691. In the English ecclesiastical courts, the defendant may 
 not only recriminate the plaintiff and show a competent wrong in 
 him for the purpose of defeating his action for a divorce, but the 
 defendant may also, in a proper case, obtain a divorce by the decree 
 of the court in the same action. ( Yide Dysart v. Dysart, 1 Bob. 
 B. 106. Clowes v. Clowes, 3 Curteii Ec. B. 185, 194.) And 
 the same rule applies in many of the American States, sometimes 
 by a cross-suit and sometimes by setting up the matters in the 
 
ADVAWCES FENDINO SUIT. 9U 
 
 answer, and praying for the affirmative relief desired, {Vide 
 MoOafferty v. McCafferty, 8 Blaokf. B. 218. Stafford v. Stafford, 
 9 Ind. B. 162. Birkley v. BirUey, 15 III. B. 120. Boggess v. 
 Boggess, 4 Banana R. 307. Anonymous, 17 J.J5. Pr. P. 48. ^. 
 v. ^. 11 iV^. r: Ze^. 05s. 350.) In Indiana, the matter is regu- 
 lated by statute, which provides that "the defendant may, in 
 addition to his or her answer, file a cross petition for divorce, and 
 the court shall in such case decree the divorce, if any, in favor of 
 the party legally entitled to the same." ( Vide Stoner v. Stoner, 9 
 Ind. B. 505, 506.) And in New York and several others of the 
 states, their Code of Procedure provides that if it appears on the 
 trial of a cause that the defendant is entitled to any affirmative 
 reUef, judgment must be given accordingly. Under such a pi'ovi- 
 sion there could be no doubt but a defendant in a proper case 
 could have his divorce. But in all these cases where the defendant 
 seeks a divorce by recrimination, he should set up in his answer all 
 the facts constituting his claim for a divorce in the same manner, 
 and it should be accompanied with the same allegations as are re- 
 quired when charged in a bill. (Morrell v. Morrell, 3 Barh. B. 236.) 
 § 692. It has always been the practice in the ecclesiastical courts, 
 in cases for divorce, to require the husband to advance the means 
 to the wife to enable her to prosecute or defend the action, whether 
 she be plaintiff or defendant ; and this has also been the general 
 practice of the American courts. Formerly it was usual to require 
 this almost as a matter of course, but of late the rule has been 
 relaxed. It is now held not to be a matter of right, under all cir- 
 cumstances, for the wife who has commenced a suit for a divorce 
 or for a separation, or against whom the husband has brought his 
 action for a divorce, to require the court to direct an allowance to 
 be paid to her by the husband, plaintiff or defendant, for the pur- 
 pose of defraying the expenses of the suit. When it is probable, 
 however, that the wife may succeed in such action, and when it 
 appears that she is destitute of the means of carrying on or 
 defending the action, as the case may be, it is almost a matter of 
 course, at the present day, to require the husband to make the 
 wife a reasonable allowance for the necessary expenses of the suit, 
 having a due regard to the value of his property, the amount of 
 his income from his own exertions, and the necessary support 
 of himself and others who have claims upon him for subsistence. 
 And, as it would be improper for the wife to cohabit with her bus- 
 
912 LAW OF COVEMTUSE. 
 
 band during the pendency of the action, if she is unable to provide 
 for her own subsistence, and he has the means of supporting her, it 
 is also a naatter of course to require him to contribute of those 
 means to furnish her with the necessary clothing and subsistence, un- 
 til it can be legally determined whether the charges preferred are 
 true or false. But if the proofs presented on the application render 
 it morally certain that the action brought by the .wife will ultimately 
 fail for want of merit ; or if it is made to appear, when the action is 
 brought by the husband, that the wife lived in adultery, or a life of 
 prostitution, the allowance will not be naade; {Koch v. Koch, 42 
 Barb. E. 515. Jones v. Jones, 2 Bmh. Ch. li. 146. Whitney v. 
 Whibney, 22 Sow. Pr. B. 175. Oa/rpenter v. Carpenter, 19 ih. 639.) 
 
 It is not at all a matter of course to allow an advance to the 
 wife on a bill filed by her for divorce a inensa et thoro, to enable 
 her to prosecute her suit. Ihjuiy and a meritorious cause of action 
 must be made to appear, and then a suitable allowance will be 
 made. {Worden v. Worden, 3 Kdw. Ch. B. 387.) Where the 
 husband comes for divorce, and his wife denies on oath the charges 
 made against her, he must supply money for temporary support, 
 and to help the wife to make her defense ; his poverty will not 
 shield him; he must conform to the rule or abandon his suit. 
 {Purcell V. Purcell, 3 Edw. Ch. B. 194. Bruere v. Bruere, 1 
 Curt. Eg. B. 566. Walker v. Walker, lb. 560.) 
 
 Sometimes the matter of advances by the husband to the wife, 
 to enable her to prosecute or defend the action of divorce, is reg- 
 ulated by statute ; but, if there be no statute upon the subject, the 
 allowance, in a proper case, will be made. {Worth v. North, 1 
 Barl. Ch. B. 241. Mix v. Mix, 1 Johns. Ch. B. 108. Story v. 
 Story, Walker's [Mich.] B. 421. FishU v. Fishli, 2 Litt. B. 337. 
 Amos V. Amos, 8 Green's Ch. B. 171. Patterson v. Patterson, 1 
 Balst. Ch.B. 389. Byan v. Byan, 9 Mo. B. 539. McGee v. 
 McGee,. 10 Ga. B. 477. Farwell v. Farwell, 31 Maine B. 591. 
 Melizet V. Melizet; 1 Pa/rson's B. 78. Bichetts v. Bichetts, 4 
 GiWs B. 101. Daiger v. Daiger, 2 Md. Ch. B. 335. Tayman v. 
 Tayman, lb. 393. Coles v. Coles, lb. 341.) In Connecticut, when 
 the wife is respondent and defends herself against the application of 
 her husband, the practice is uniform to order him to provide, in 
 case of her inability, funds for her defense ; but it seems that such 
 aid is never furnished her when she is the prosecuting party. 
 {Shelton v. Pendleton, 18 Conn. B. 417.) 
 
DECREE m DIVORCE SUITS. 913 
 
 CHAPTER XLiy. 
 
 THE DECEEB IN A DIVOECE STIIT — ALIMOITT AUD THE ETTLES EESPEOT- 
 
 ma rr-^THE effect of the deobee op divoecE' — validity of 
 
 F0EEI6N DIVOECES CONCLUSION. 
 
 § 693. The decree in a divorce suit is the sentence or judgment 
 of the conrt, dissolving the marriage relation, or separating the 
 parties from bed and board, as the case may be, and determining 
 the incidental rights of the parties in respect to each other and to 
 society. In England they have a statute which provides that " every 
 decree for a divorce shall in the first instance be a decree nisi^ not 
 to be made absolute till after the expiration of such time, not less 
 than three months from the pronouncing thereof, as the court shall 
 by general or special order from time to time direict ; and during 
 that period any person shall be at liberty, in such manner as the 
 court shall by general or special order in that behalf from time 
 to time direct, to show cause why the said decree should not be 
 made absolute by reason of the same having been obtained by col- 
 lusion, or by reason of material facts not brought before the court ; 
 and, on cause being shown, the court shall deal with the case by 
 making the decree absolute, or by reversing the decree nid, or by 
 requiring further inquiry, or otherwise, as justice may require." 
 (23 and 24 Vict. ch. 14A, § 7. And vide BouUon v. JBoultqn, 
 2 Swab. (& Tris. E. 405. Stoate v. Stoate, 11. 384. Lewis v. 
 Lewis, lb. 394.) But this practice does not generally obtain in the 
 American States. The decree in the first instance is made absolute, 
 although, for good cause shown, the court would open the decree 
 and hear the cause further. If, however, the divorced party has 
 married in the mean time, the case would have to be an extreme 
 one for the court to interfere. ( Vide Olin v. LTungerford, 10 
 Ohio R. 268. Piatt v. Piatt, 9 ib. 37. Laughery v. Laughery, 
 15 il. 404. Johnson v. Johnson, Walk. [Mich.'] P. 309. Smith 
 V. Smith, 4 Paige's Ch. P. 433. Punn y.Dwmi, 11. 425. CoVoin 
 V. Cdlmin, 2 ih. 385. Boggess v. Boggess, 4 Bana^s P. 307. Jeam 
 V. Jeans, 3 Harr. [Bel.] P. 136. Lucas v. Lucas, 3 Oram's R. 
 136. Sheaf e v. Sheaf e, 9 Fast. P. 269. Hoffman v. Hoffman, 
 30 Penn. P. 417. Mansfield v.. Mansfidd, 20 Mo. P. 163, 
 Smith V. Smith, lb. 166.) 
 
 § 694. The form of the decree is generally prescribed by statute. 
 In cases of divorce a vinculo muinmonii the decree declares the 
 115 
 
914 LAW OF COVEBTURE. 
 
 dissolution of the marriage contract, and further provides that the 
 defendant is prohibited from marrying again until the complainant 
 is actually dead, but permitting the complainant to marry again,, 
 the same as though the defendant was actually dead. The decree 
 also regulates the question as to the custody of infant children, if 
 the parties have any, and sometimes as to the property of the par- 
 ties. {Hansford v. Hcmsford, 10 Ala. E. 561.) In some of the 
 states, however, the dissolution of the marriage relation is absolute 
 as to both parties, and they may both marry again, as though they 
 had never before been married. In cases of divorce a mensa et 
 thoro the decree provides for the separation of the parties and the 
 support of the wife apart from her husband, and for the custody of 
 the infant children of the parties, if they have any ; and, as a gen- 
 eral rule, when the wife succeeds in the action, the decree provides 
 for the collection of her costs and expenses out of the husband, 
 whether the case was for an absolute or limited divorce. ( Yide 
 Ora/oes v. Qra/oes, 2 Paiges Ch. R. 62.) In some cases, where the 
 wife is defeated in her action for a divorce, her costs will be 
 allowed against the husband. Thus, in a case before the Alabama 
 courts, the learned judge said: "It was manifestly wi'ong to 
 render a decree against her for costs in a suit prosecuted against 
 her husband under any circumstances ; but, in this case, the court 
 is of the opinion that he should have been compelled, by the 
 decree, to pay the same, as from the admissions of the answer it 
 appears that she had probable cause for instituting her proceed- 
 ings, although she may not have been able to prosecute the case to 
 a successful issae." {Richardson v. Richardson, 4 Porter's R. 
 467, 478, 479.) But, however the case may be, the decree usually 
 determines the question of the wife's costs, and oftentimes other 
 incidental matters not necessary here to be noticed. 
 
 § 695. It may also be affirmed as a general proposition, that 
 when there is a separation decreed upon the application of the wife, 
 alimony will be allowed if the wife asks it. Alimony in law is the 
 allowance made to the wife out of the husband's estate or income, 
 upon a decree of separation. This allowance is made upon the 
 theory that the husband is bound to support his wife, and this 
 obligation does not cease after her separation from him for causes 
 originating with him after the marriage. " This alimony, in strict- 
 ness of law, being a duty properly due from the husband to the 
 wife during her cohabitation with him, the canon law says, that 
 
PESHANENT ALIMONY. 915 
 
 if she does, without any default of his, of her accord, depart from 
 Mm, he shall not be obliged to allow her alimony during such her 
 willful desertion of him, though she be not charged with adultery, 
 and though he had a considerable dowry with her. But if she 
 departs from her husband through any default of his,- as on the 
 account of cruelty and the like, then he shall in that case be com- 
 pelled to allow her alimony, though he had no dowry with her ; 
 for the law deems her to be a dutiful wife as long as the fault lies 
 at his door." {Ayl. Pa/rer. 58.) 
 
 When the wife is the offender and a divorce is granted on the 
 petition of the husband, alimony is very seldom allowed. There 
 may be circumstances attending such a' case, however, when it 
 would be but simple justice that the husband should be required 
 to make a provision for her support; and where there is no 
 statutory impediment the husband has been occasionally decreed 
 to make such provision for his discarded wife ; " and for this most 
 just, humane and moral reason, that she may not be driven by 
 want to continue in a course of vice." {Jee v. Thwrlow, 4 Bowl. 
 & Byl. B. 11, 17.) 
 
 " It is not too much to suppose," said Eastman, J., in a case in 
 the supreme court of New Hampshire, " that there are those who 
 would enter into the marriage relation solely with the view of 
 possessing themselves of the property of their wives, and who would 
 readily sacrifice their virtue, if by so doing they could break up 
 the marriage contract, and at the same time retain the property 
 of which she had gained possession. Nor is it too much to suppose 
 that a weak-minded woman might become the victim of an artful 
 and unprincipled husband ; and yet in such a way that it would be 
 impossible to produce any evidence implicating him in her fall. 
 To cast such a woman destitute upon the world would be doing 
 the grossest injustice, and at the same time be rewarding the most 
 infamous iniquity." {Sheaf e v. Sheaf e, 4 Fost. B. 564, 568.) In a 
 case in the late court of chancery of the State of New York, 
 wherein the decree was against the wife on the petitior of the hus- 
 band, the late distinguished Chancellor "Walworth said : " Although 
 I am compelled to decree a separation in this case, I should not 
 leave the future support of the wife, beyond what she is able to 
 earn by her own exertions, wholly unprovided for, but should direct 
 the husband to pay the same amount for her support which he has 
 Voluntarily paid, did I not doubt my power to make such a .decree 
 
916 ZAW OF COVERTURE. 
 
 against the husband." After referring to the statute and conclud- 
 ing that the alimony could not he allowed under its provisions, 
 "when the husband has obtained a decree of sepa,ration from his 
 wife, on account of her own misconduct, the learned chancellor 
 added, " I -can therefore only recommend to him that he should 
 hereafter allow her at the rate of tliree dollars a week, if he has 
 the means of doing so, in addition to what she can. earn by her 
 own exertions, while she continues to provide for herself therewith, 
 without being a charge upon any of her relatives or friends." 
 {Perry v. Perry, 2 Ba/rl. Gh. P. 311, 312, 313.) , 
 
 In a case which arose under the Ifew Hampshire statute upon 
 the subject. Judge Bell said: "The ordinary course is to allow 
 alimony to the wife, where she is the injured party and the libel- 
 lant ; but the power of the court is not limited to that case. The 
 wife may be in the wrong. She may have an unhappy temper, or 
 an unfortunate disposition ; she may have ill-treated her husband, 
 or deserted him, or have otherwise misconducted herself, and yet 
 the property she may ask as alimony may be all such as has been 
 accumulated, in whole or in part, by her own industry ; and her 
 fault may be far from such as ought to be punished by the forfeit- 
 ure of all her property, or her interest in the husband's property, 
 thus leaving her to beg or starve. She may have so conducted 
 herself that her husband may be well entitled to a divorce, and 
 yet she may be a wronged and injured woman ; and there seems, 
 therefore, to be good reason why the com-t should be vested with 
 the power of making to her a just and reasonable allowance in, 
 any such case." (Sheaf e v. Laighton, 36 iT. H. R. .240, 243.) 
 And several of the states have statutes under which the courts 
 have granted an allowance from the husband's estate, notwith- 
 standing the divorce was ordered on the complaint of the husband. 
 ( Vide Pence v. Pence, 6 B. Moth. P. 496. Dailey v. Dailey, 
 WrigMs [Ohio] P. 514. McCafferty v. McCafferty, 8 BlacTcJ\ P. 
 218. Peavis v. Pecwis, 1 Scam. P. 242. Pichardson v. Wilson, 
 8 Yerg. P. 67. Lovett v. Lovett, 11 Ala. P. 769. But vide 
 Oliver v. OUver, 5 il>, 75.) But the policy of allowing the delin- 
 quent wife alimony is quite questionable, although there may be 
 circumstances which justify it. 
 
 § 696. The question of alimony is not always a peremptory one ; 
 it is, in genei-al, in the discretion of the court which grants the 
 decree. In the State of New York, where a bill was filed by 
 
PERMANENT ALIMONY. 917 
 
 the wife against her husband for a divorce a mensa et thoro, on 
 the ground of cruel usage, the coui-t, under the circumstances, 
 decreed a divorce for five years, and required the husband to pay a 
 certain sura per year, in half-yearly payments, for the support of 
 the wife and the education and maintenance of their infant child • 
 but the rule was declared that the licentious conduct of the wife, 
 if existing prior to the alleged acts of cruel treatment by the hus- 
 band, will destroy any just claim for maintenance. {Bedell v. 
 Beddl, 1 Johns. Ch. E. 604.) But this discretion is a Judidal dis- 
 cretion and not an arbitrary one ; and, when the delinquency of 
 the husband has been established, and the wife is the injured party, 
 driven by his cruelty, for example, from the benefit of domestic 
 enjoyments, the courts will always make the allowance. (Burr v. 
 Burr, 1 EiWs E. 207, 211.) 
 
 The law has fixed no definite proportion of the husband's estate 
 to be allotted to the wife in these cases for permanent alimony ; 
 therefore, the court is always required to look to all the circum- 
 stances of the particular case, as no two are alike, in order to award 
 what is fair and just between the parties. The general rule is, that 
 the wife is entitled to a. support corresponding to her rank and con- 
 dition in Kfe and the fortune of the, husband; and it seems to be a 
 settled principle to make a more liberal allowance in case of aggra- 
 vating circumstances in the conduct of the husband, and when no 
 imputation exists against the wife, than in other cases. So, the 
 amount is always influenced, more or less, by the fact that the hus- 
 band has a family of children to support, or that he himself is in 
 feeble health. In many cases, the third part of the annual income 
 of the husband has been assigned as permanent alimony ; in others, 
 a moiety. {Bwrr v. Burr, supra.) If the parties are laboring 
 people, the wife does not usually require as much as though she 
 was brought up unused to labor, aud this is taken into the account 
 by the courts. If the husband is in good health and skillful, and 
 is actually realizing considerable profits, it has been said that "the 
 partner of his fortunes should not be refused a reasonable participa- 
 tion in them." {Prinoe v. Prince, 1 Bich. Eq. B. 282. And 
 vide Kirby v, Kirby, 1 Paige's Ch. B. 261.) Dr. Lushington said : 
 "I think that, with regard to permanent alimony, the court would 
 make a different allotment in a case where the income of the hus- 
 band was derived from his sole personal labor or exertions, from 
 what it would do where he had moreover a large reversionary prop- 
 
918 LAW OF COVERTURE. 
 
 erty in expectancy." {Stone v. StOTie, 3 Curt. Ec. R. 341.) Upon 
 this subject, Mr. Bishop says : " If a wife has capacity to carry on 
 business and to earn a livelihood, the husband has his rights con- 
 cerning this capacity ; if the wife has it, the wife has her corres- 
 ponding rights; and, when alimony is to be decreed, whether 
 between parties possessed of visible fortune or not, the respective 
 capacities, as thus explained, should enter largely into the calcula- 
 tion. There are, undoubtedly, instances in which the wife's duty 
 is to support wholly her husband by her own mental and physical 
 exertions ; and though, if he were delinquent in the duties of the 
 marriage, on account of which she obtained a divorce from him, he 
 would then have lost, by his own fault, his claim upon her, yet she 
 would have no "claim on him for alimony." (2 Bish. Mar. and 
 Div. § 458.) 
 
 But it seems to be generally understood, that at least one-third 
 of the husband's income is the usual rate at which permanent 
 alimony will be allotted, but it is liable to variation, according to 
 the husband's ability to pay, and the conduct of the parties. The 
 law, however, has laid down no exact proportion ; it sometimes 
 gives a third, sometimes a moiety, according to cii'cumstances. 
 {Oinjoay v. Otway, 2 PMllvm. R. 109.) 
 
 § 697. It will be borne in. mind that alimony is a provision or 
 allowance for the maintenance of the wife, and it is not, therefore, 
 a specified proportion of the husband's property set off, or given 
 absolutely to her ; but a specific sum secured to be paid periodi- 
 cally for her actual- support ; or it is sometimes an assignment to 
 her separate use of such part of the real and personal estate of 
 the husband as the court shall think fit. {Maguire v. Maguire, 
 7 Bana^s E. 181. WalUngsford v. Wallmgsford, 6 Rar. c6 Johns. 
 E. 485. Pwcell v. Purcdl, 4 Hen. (& Munf. E. 507. EusseU 
 V. Ewssell, 4 Oreenis \Iowd\ E. 26. And vide Eogers v. Vines, 
 6 Ired. B. 293.) 
 
 The authorities are adverse to alimony being allowed to the 
 wife for her natm-al life, for the husband may die before she does, 
 and his duty to maintain her ceases on his own decease. {Loeh- 
 ridge v. ZocTcridge, 3 Bana's E. 28. Zogan t. Logon, 2 B. Mon. 
 E. 142. Mayhugh v. Mayhugh, 7 ib. 424.) The allowance is 
 usually a specified sum, but the parties are at liberty to apply to 
 the court at any time subsequent to the decree to have the allow- 
 ance varied. {Paff v. Paf, Sop. Ch. E. 584.) Dr. Lusliington 
 
PERMANENT ALIMONY. 919 
 
 laid down the rule that " where there is a marital alteration of 
 circnmatanccs, a change in the rate of alimony may be made. If 
 the facilities are improved, the wife's allowance ought to be 
 increased ; and, if the husband is lapsus facultatib'us, the wife's 
 allowance ought to be reduced. Applications of this sort are of 
 rare occurrence." {De Blaquiere v. De JSlaqwiere, 3 Hag. Eo. R. 
 ■ 323. Vide Westmeath v. Westmeath, 3 Knajop's B. 4:'2. Peniber- 
 ton V. Peniberton, 2 Notes Cas. 17. Cox v. Cox, 3 AM. Eg. B. 
 276.) But, although the wife is at liberty to apply to the court 
 for an increase of the amount allowed her as permanent alimony, 
 on a change of cii-cumstances, it is not every change which in- 
 creases her expenses of living, that will entitle her to an increased 
 allowance. For example, where her expenses have been increased 
 by the addition to her family of a person whom the husband is 
 under no obligation to support, the application for an increased 
 allowance will not be granted, although the ability of the husband 
 to pay may have been improved subsequent to the decree fixing 
 the original amount. To increase the amount of her alimony 
 merely on account of such expenses, would, in effect, compel the- 
 husband to support such third person as the wife might permit to 
 eat up her own estate. {Hdlstead v. Halstead, 5 Duer's B. 659.) 
 It is not denied, however, that there may be cases in which the 
 improvement of the pecimiary condition of the husband subse- 
 quent to the decree of divorce, when considered in connection with 
 the amount of alimony allowed by the judgment, and the social 
 position of the parties, and their general mode of life previously, 
 would make a further allowance just; but alimony is a mainte- 
 nance to the wife, and the amount is always fixed with respect to 
 that particular object. 
 
 § 698. In a suit brought by the wife for a divorce she cannot, 
 previous to the decree dissolving the marriage^ make any valid 
 agreement as to her allowance for alimony, and the court will not 
 sanction any such agreement made by her, unless it satisfactorily 
 appears that the allowance made in her favor for alimony is as 
 much as she is fairly entitled to. After the bond of matrimony has 
 actually been dissolved as to the wife, by a decree of court, she 
 may make such arrangement aS she pleases in regard to her ali- 
 mony. {Daggett v. Daggett, 5 PaAge^s Ch. B. 609.) A wife, how- 
 ever, may compromise a suit brought by her against her husband 
 for a divorce, and the court will only interfere so far as to see that 
 
920 LAW OW C0V11BTUR& 
 
 she is not overreaclied or imposed upon in the settlement. In such 
 a case the parties may agree upon the allowance to he made hy the 
 hnshand, and the same will he sanctioned by the court, but a 
 decree of divorce cannot be ordered in pursuance of any under- 
 standing between the parties, although, Vithout doubt, many such 
 decrees are entered, where the court has no knowledge of the col- 
 lision. (Kvrfyy y. Kirby, 1 Paige^s Gh. R. 565,.) 
 
 It has. been doubted even whether a wife would be bound by an 
 agreement to relinquish her alimony after the decree of the court 
 granting the divorce. Upon this subject. Dr. Lushington said : 
 " I doubt whether, in law, it was competent for her, in that form, 
 to relinquish the benefits of the decree of the court. This is a con- 
 tract between husband and wife ; and though the principles appli- 
 cable to such contracts are not strictly the same after a, legal 
 separation as they may be regarded while the parties are living 
 together, yet they are not widely different. In the one case, there 
 is the influence arising from affection ; afterward an influence of 
 a different sortj arising from an anxiety to communicate with her 
 children. If it were necessary to settle this point, I should be of 
 opinion that the whole alimony decreed to her in 1830 must be 
 placed at her disposal, and then she will be at liberty to appro' 
 priate it as she pleases." {De JBlaquiere y. De Blaquierc, 3 Hag. 
 Ee: B. 323.) It would seem that this was a case of legal separation 
 merely ; but when the divorce is from the bond of matrimony, the 
 wife is; free to act for herself, and is capable of modifying, or 
 entirely relinquishing, the alimony decreed to her, provided it is 
 based upon a valid consideration. ■ {Blake v. Blake, Y Iowa B. 46.) 
 
 The circumstances of, the, parties may sometimes so change ;snbf 
 sequent to the decree as to justify a reduction of the allowance, 
 although a reduction is very seldom made ; and, it has been held in 
 some instances, that where a woman is divorced from her husband 
 by reason of his adultery, her right to such suitable allowance as 
 may be just, . having regard to the circumstances of the parties 
 respectively, as they exist at the time the decree is pronounced, is 
 perfect and absolute ; and that her subsequent misconduct no more 
 irapaira her right to it than such subsequent misconduct would 
 impair her right to dower, or to a distributive share of her husband's 
 personal estate, if he had died intestatOj and no divorce had been 
 pronounced ; that her subsequent ill-conduct cannot be punished 
 by a forfeiture of part of an allowance, just in itself, when fixed 
 
EFFECT OF TSE DIVORCE. 921 
 
 and adjudged to lier by reason of her husband's violation of legal 
 duties. {Forrest y. Forrest, 3Bom.Ii.6Gl.) But if the pecuniar/ 
 or physical condition of the parties should change subsequent to 
 the decree, the case might be different, even though it may not 
 concern her former husband or the court in respect to the way in 
 ■ffhicli she spends her alimony. It was observed by the court in a 
 Canada case : " Should any application be made to this court to 
 reduce the allowance to the wife in consequence of the altered 
 circumstances of the case, it will consider itself at liberty to con- 
 sider the question anew, and to re-adjust the allowance proper to 
 be made in the new state of affairs." {Severn v. Severn, 7 Grant's 
 U. C. Oh. B. 109.) Alimony is fixed by the decree of the court^ 
 and the husband is required to give security for its payment, in 
 Buch wdy as the court shall approve ; and the court is not author- 
 ized to sequester the estate of the husband, appoint a receiver, and 
 apply it to the payment of such allowance, until after making an 
 order' requiring the liusband to give security for the payment of 
 the allowance awarded to the wife in the decree, and the failure 
 of the husband to perform it. And if security be given in such a 
 case, by order of the court, for the payment of such allowance, the 
 security must first be resorted to and exhausted before the estate 
 of the husband can be sequestered. {Forrest v. Forrest, 9 Bosw. 
 5.686.) 
 
 If the husband should refuse to comply with the order of the 
 court to give the security required for the payment of the alimony 
 awarded, he may be attached and imprisoned a^ for a contenipt of 
 court. {Qraley v. Graley, 31 Sow. Pr. R. 475.) 
 
 § 699. "With respect to the consequences which flow from the 
 divorce it may be. said, in general terms, that the effect of the 
 decree, in the first place, is to place the parties in the condition 
 therein expressed, and, as to third persons, their relation to the 
 parties, iu many particulars, may be determined by the provisions 
 of the decree ; but, in most respects, the effect of the decree of 
 divorce is declared by law, irrespective of what appears upon the 
 face of the judgnient. The dissolution of the marriage relation, or 
 the separation of the parties, and the right of either or both to 
 marry agfl,in, are usually regulated by statute, though expressly 
 provided for in the decree. If the divorce is absolute the decree 
 dissolves the marriage, and declares that each party is freed from 
 its obligations. The marriage contract, therefore, is at an end, 
 116 
 
922 ZAW OF COVERTURE. 
 
 and both parties are absolved from all the obligations arising out 
 of that contract. The relation of the parties, consisting of their 
 mutual rights and duties, no longer exists, and the words husband 
 and wife are no longer applicable to them. But for the prohibi- 
 tion of a statute, in such case, there would be no restraint upon 
 either party as to a second marriage. The statute in most of the 
 states prohibits the offending party from marrying again until the 
 death of the other. The effect of the divorce upon the property 
 rights of the parties and third persons is determined entirely by 
 the law, and is seldom learned from the face of the decree. If the 
 divorce is a vinculo matrimonii, things executed where the hus- 
 band is seised in right of the wife are not avoided by the divorce ; 
 and if the common law prevails so that the husband becomes the 
 owner of his wife's personal property, reduced to possession, his 
 title to it remains undisturbed. {Lawson v. Shotwell, 27 Miss. li. 
 630, 636.) And, as a general thing, the husband would be entitled 
 to take the emblements growing upon his wife's land at the time 
 of the decree. {Gould v. Webster, 1 Tyler'' s S. 409. Oldham, v. 
 Henderson, 5 Dana!s H. 254.) Usually, upon the dissolution of 
 the matrimonial union, the inchoate right of curtesy and dower is 
 at an end. {Dobson v. Butler, 17 Mo. R. 87. Given v. Marr, 27 
 Maine B. 212. Clark v. Olarh, 6 Watts & Serg. R. 85, 88. 
 Levins v. Sleator, 2 Greene's [lowal R. 604. Cunningham v. 
 Cunningham, 2 Ind. R. 233. Wliitsell v. Mills, 6 ib. 229. 
 Burdiok v. Briggs, 11 Wis. R. 126. Rice v. Lumley, 10 Ohio 
 St. R. 596. McCraney Y. McCram^y,h lowaR. 232. Wheeler 
 V. HotchTciss, 10 Conn. R. 225. Ba/rber v. Root, 10 Mass. R. 260. 
 Renwich v. Renwich, 10 Paiges Ch. R. 420, 424. Burt v. Hurl- 
 burt, 16 Yt. R. 292. Boyhim, v. Bain, 28 Ala. R. 332.) But in 
 some of the states statutes exist providing that where the wife is 
 the innocent party she shall, upon the dissolution of the marriage, 
 become at once entitled to her dower. {Smith v. Smith, 13 Mass. 
 B. 231. Davol v. Howlamd, 14 ib. 219. Harding v. Alden, 9 
 Greenl. R. 140.) If lands are conveyed to the husband and wife 
 jointly, after a divorce a vinculo matrimonii, each takes a moiety, 
 although before the divorce there were no moieties; after the 
 divorce they would be tenants in common. ( Tide Ames v. Nor- 
 man, 4 Sneedh B. 687.) 
 
 Whether the provisions of marriage settlements can be enforced 
 after an absolute divorce, does not seem to be definitely settled. 
 
EFFECT OF THE DIVORCE. 923 
 
 It was held in one case, " that a decree for a divorce a vinculo 
 matrimonii, for the crime of the wife, annuls every provision made 
 for a wife in marriage articles, or a marriage settlement in the 
 nature of jointure, or otherwise, as well as any provision in articles 
 executed upon a separation." {Charraud v. Charraud, 1 If. Y. 
 Leg. Ohs. 134. And vide Hastings v. Orde, 11 Sim. S. 205.) And 
 in a case in Illinois, the court observed : " The marriage is dis- 
 solved, and all rights and obligations dependent on the existence of 
 the marriage relation are extinguished. Tlie parties are no longer 
 husband and wife, but are permitted to marry at pleasuie. The 
 husband is released from all obligation to maintain the wife, and his 
 right to her separate property is at an end. * * * It follows, 
 that this suit cannot be maintained. The sole object of the agree- 
 ment, so far as the wife was concerned, was to provide her a sup- 
 port as the widow of Somerville. Before any estate vested in the ' 
 trustees, the marriage was dissolved, for her misconduct, and she 
 ceased to be his wife. He was no longer legally or morally bound 
 to support her, or to carry into eflfect any provision previously 
 intended for that purpose. * * * If the estate had been con- 
 veyed to the trustee in pursuance of the agreement, it is possible 
 that her right to receive the income would not be lost by the 
 divorce." {Glarh v. Lott, 11 III. B. 105. And vide GarPmright 
 V. Carlmright, 19 Eng. L. and Eg. R. 46. Alhee v. Wyman, 10 
 Gray's B. 222.) 
 
 After the dissolution of the marriage, the divorced husband and 
 wife are competent witnesses for or against each other, except 
 they cannot be permitted to reveal any thing which transpired 
 between them in the confidence of the marriage relation. {Barns 
 V. Gamack, 1 Barb. B. 392. The State v. Jolly, 3 Bev. <& Batt. 
 B. 110. BatcUffY. Wales, 1 EilVs B. 63. DichermauY. Graves, 
 6 Gush. B. 308.) 
 
 It seems that after a divorce a vinculo matrimonii, the husband 
 may maintain an action «f criminal conversation against the man 
 who debauched his wife during coverture, and the discarded wife 
 is a competent witness to prove the criminal intercourse. {Batcliff 
 V. Wales, sv/pra. Dioherman v. Oraves, sv^a.) 
 
 § 700. The effect of the divorce a mensa et thoro is quite dif- 
 ferent in many particulars from that of the divorce a vinculo 
 matrimonii. In the former the parties continue to be husband 
 and wife, and neither can marry again while the other lives. The 
 
924 AW OF COVERTURE. 
 
 sentence of divorce a mensa et thoro does not so far destroy the 
 relation of husband and wife as to make the IsAXqt & feme-sole ; it 
 merely suspends for a time some of the obligations arising out of 
 that relation. {Cla/rh v. Clarh, 6 Watts <& Serg. i?. 85.) The 
 divorce is only a legal separation, terminable at the will of the 
 parties ; the marriage continuing in. regard to every thing not 
 necessarily withdrawn from its operation by the divorce. {Dean v. 
 Bichmond, 6 PiGk. R. 461, 468.) The rights of tbe parties as 
 respects property, curtesy and dower remain unchanged, unless 
 the rule is modified, as it sometimes is, by statutory enactment. 
 In the State of Louisiana, however, the courts have held that 
 such a .divorce terminates all of the marital rights of. the parties, 
 and completely separate^ them, except that neither can marry 
 while, the other lives. {Scmoie v. Ignogoso, 7 La. B. 281, 285. 
 But vide Gee v. Thompson, 11 La. An, B. 657.) But the better 
 authority is decidedly! against this doctrine. 
 
 The right of the husband to the wife's choses in action after 
 such a divorce, has sometimes been recognized at law; but "the 
 rale of the court of equity in siich cases follows that of natm-al 
 justice ; the husband by his violation of the marriage contract 
 forfeits all equitable right to the wife's property. Even when the 
 property has belonged to her before the separation, and has not 
 been reduced into actual possession by the husband, courts of equity 
 will restore it to the wife." {Holmes v. Holmes, 4 Barh. R. 295, 297. 
 Andmde Van Buser v. Van Buser, 6 Paige's Ok. B. 366. Fry 
 V. Fry, 7 ii. 461. ' Benwioky. Benwiok, 10 iJ>. 420.) In an early 
 case after a divorce a mensa et tkoiro,wi injunction was moved for 
 to prevent the husband from selling a team belonging to the wife. 
 The court was of the impression, first, that it should not be granted, 
 because the marriage continued, and the husband had the same 
 power over it as before the divorce ; but, finally, upon due deliber- 
 ation, it was held that, though the marriage continued notwith- 
 standing the divorce, yet the husband did no act as a husband nor 
 the wife as a wife; and the injunction was accordingly granted. 
 
 i{Anonymous, 9 Mod. B. 43,, 44. 2 BrigMs Hus.mnd Wife, 363.) 
 After the divorce a mensa et thoro, the husband is no longer 
 
 ( liable for his wife's debts, contracted for necessaries or otherwise ; 
 a,limony is decreed for her maintenance and support, and that dis- 
 charges the husband from such liability for her debts. ( Willson v. 
 Smdth, 1 Barn, db Ad. R. 801. But vide Keegan v.; Smith, 5 
 
EFFECT OF TEE DIVORCE. 925 
 
 Bam. & Cres. B. 375.) Generally the wife, after a divorce of 
 either kind, may do business upon her own account, and is liable 
 upon her contracts. 
 
 , ', § 701. As a general rule, the sentence of divorce, when regularly 
 and fairly obtained, is conclusive upon all parties, both at home and 
 abroad. {Bwrher v. Root, 10 Mass. R. 260. Wall v. Williamson, 
 8 Ala. R. 48. Wall v. Williams, 11 ib. 826. ][Iull v. Eull, 2 Strob. 
 El. R. 174, 177, 178. Patterson v. Gaim.es, 6 How. JJ. S. R. 550, 
 599.) But this rule has its exceptions, and depends upon many 
 circumstances. Indeed the authorities are not entirely harmonious 
 upon this subject. In England a suit was instituted in the arches 
 ooiu;t, in 1850, by the husband for restitution of conjugal rights. 
 The parties, who were then Protestants, and members of the Epis- 
 copal church, the husband being a clergyman, were married in 
 Philadelphia, and were residents of the United States, and after- 
 ward, embracing Catholicism, went to Rome and resided there, and 
 the husband was ordained a priest of the Eomish church. While 
 at Eome, a rescript or decree of the authority of Rome was 
 obtained, which was claimed and pleaded to be, in effect, a separa- 
 tion. Both afterward went to England, where the wife became a 
 superioress of a convent. The court overruled the plea, and held 
 that the parties were subject to the laws of Pome only while 
 there, and that they did not carry that law with them into Eng- 
 land. The court said : " "We all know that in questions of mar- 
 riage contract the lex loci contractus is that which is to determine 
 the stattis of the parties." That " by consent of all nations, it is 
 the JTis ffewtium that the solemnities of the different nations with 
 respect to marriage should be observed, and that contracts of this 
 kind are to be determined by the laws of the country where they 
 are made." {Connelly v. Connelly, 14 Jur. 437. S. C. 2 Mig. L. 
 omdEq^. R. 570.) Now^ if it is implied that the contract shall not 
 be dissolved by the courts of another state, except for causes 
 allowed by the law of the state where it was made, a divorce by 
 the courts of another state for any other cause would, perhaps, be 
 impairing the obligation of a contract. But this contract is some- 
 what peculiar, and perhaps there is an implied agreement that the 
 marital • obligation shall always be regulated by the law of the 
 state or country where the' parties acquire a domicile ; and their 
 rights, duties, and obligations, from the relation of husband and 
 wife, be defined by the municipal law of that domicile. The 
 
926 JjAW of COVERTUnE. 
 
 validity of the marriage, of course, depends upon its conformity 
 to the lex loci contractus. And, perhaps, if the parties are 
 both residents of the same state, and intend to continue so, it 
 is hardly reasonable to say that a marriage in transitu or in 
 itinere, in another state, in which divorces are granted for minor 
 causes, is an agreement that the marriage shall be dissoluble for 
 those causes. Being a civil contract, it may be said, it is to be 
 performed in any place where the parties shall afterward volun- 
 tarily reside, animo manendi. This is the judicial reasoning in a 
 case before the supreme court of the State of New Tork, wherein 
 it was held, that, where the parties, having a domicile in the state, 
 were married there, and afterward the wife obtained a divorce a 
 mensa et thoro; and still later, the husband went to Michigan and 
 obtained a decree a vinculo, on a charge of willful desertion, the 
 wife not having appeared, nor having notice, except by publication 
 in a newspaper in the latter state ; the divorce was a nullity ; and 
 the husband, having married again in the former state, the court 
 granted a divorce on the petition of the wife, for adultery. ( Yischer 
 V. Yischer, 12 Barb. R. 640.) However, it was rather conceded, 
 that a divorce granted by the court of a sister state, after appear- 
 ance, or if the parties are domiciled there, after personal service, 
 there being no fraud or collusion, would be conclusive in New 
 York. And it may be doubted, in case of an appearance and liti- 
 gation on the merits, whether proof of the domicile of the parties 
 or the lex loci contractus, or the locus delicti, should affect the 
 decree anywhere. But it is a sound principle of law, as well as of 
 natural justice, that no person should be bound by a judgment 
 without an opportunity of being heard ; and there is no good 
 . reason why this rule should not apply in cases of foreign divorce. 
 {Borden y. Fitch, 15 Johns. E. 121. Bradshaw v. Heath, 13 Wend. 
 E. 407.) 
 
 § 702. It has been held by the supreme court of the State of New 
 York, that the legislature of a foreign state has no power to dis- 
 solve the marriage contract when the wife alone is resident within 
 the state and subject to its jurisdiction, so as to affect rights of 
 property in another state, where the husband is actually resident. 
 Brown, J., who gave the opinion of the court at general term, 
 said : " The contract of marriage is entire and indivisible, confer- 
 ring rights and imposing obligations upon both parties. "When the 
 courts exercise the power of dissolving the contract and relieving 
 
FOBEWN DIVORCES. 927 
 
 the parties from its obligations, they must have jurisdiction over 
 both. They cannot, at the suit of one, entertain proceedings 
 against the other for a dissolution of the contract, unless they have 
 jurisdiction of such other, either by the serving of process 6r by 
 voluntary appearance. Such an act — and there have been'' such 
 acts — ^has been denoiuiced as contrary to the first principles of 
 justice. What cannot be done by the judicial power of a state, in 
 this respect, is equally beyond the reach of the legislative power. 
 If they may give effect to such legislation within their own bor- 
 ders, they cannot, certainly, thereby affect the rights of property 
 of either party who are not, and where the property is not, subject 
 to their jurisdiction. Under our laws, marriage is not a sacrament, 
 but a civil contract, made like other contracts, with the consent of 
 the parties, and upon sufficient consideration. Assuming that the 
 husband is a citizen of one state and the wife resident within 
 another, can a state legislature destroy or impair the obligation of 
 the marriage contract by an act which takes the form of a law ? 
 Is not such an act within the spirit, if not the very letter of the 
 constitutional provision which forbids a state to pass any law 
 which impairs the obligation of contracts ? Quere." {Todd v. 
 Zerr, 42 Bari. B. 317, 318, 319.) 
 
 Upon the effect of foreign divorces, the courts of ISTew Tork 
 have uniformly held the same doctrine from a very early period. 
 In one case the parties were married in the state, in September, 
 1800 ; they resided in the state and lived together until the winter 
 of 1802. In October, 1 802, the wife Avent to Vermont for the ex- 
 press purpose of obtaining a divorce ; in April, 1808, she returned 
 to the State of New Tork, having in February preceding obtained 
 a divorce, discharging her from the marriage contract and award- 
 ing her alimony against her husband. The ground upon which 
 the divorce was granted was ill treatment and severity of temper ; 
 for which causes the laws of Yermont authorized a divorce a vin- 
 culo, when by the laws of New Tork, where the contract was 
 entered into, and where the parties resided, no such divorce could 
 be granted except for adultery. The supreme court held that the 
 divorce in Vermont was a fraud upon the laws of New Tork, 
 and was therefore a nullity. (Jackson v. Jackson, 1 Johns. R. 
 424.) In a later case, a similar decision was made where the hus- 
 band obtained a divorce in Vermont, while his wife resided in 
 New Tork, and it did not appear that personal notice of, the pro- 
 
928 LAW OF COTERTirRE. 
 
 ceeding in the Yermont court was given to the wife, although the 
 law of Vermont only required notice in the newspapers; the 
 supreme court of New York held that the divorce was void and 
 not available for any purpose. {Borden v. Fitch, 15 Johns. R. 
 140. And vide Bradshaw v. Heath, 13 Wend. R. 407. McOif- 
 fert V. McGiffert, 31 Barb. R. 69.) A divorce obtained under 
 similar circumstances was declared null and void in Massachusetts. 
 The court said : " If we were to give effect to this decree, we 
 should permit another state to govern our citizens in direct con- 
 travention of our own statutes, and this can be required by no rule 
 of comity." {Sanover v. Turner, 14 Mass. R. 227, 231.) And 
 in a late case a similar doctrine was declared, wherein Shaw, Ch. 
 J., said : " Even before the Eevised Statutis, upon general princi- 
 ples of justice and policy, such a decree would not have been held 
 valid, but void, partly on the ground that it was a proceeding in 
 fraud of our law, and partly because the court of the foreign state 
 could ha/ve no jurisdiction of the subject-vnatter, and of ioth of the 
 parties." {Lyon v. Lyon,,^ Gray^s R. 369.) 
 
 § 703. Upon this subject, it may be affirmed, that although the 
 cases which have arisen in the American States are not entirely 
 uniform, the better and prevailing doctrine is, that where the hus- 
 band and wife are both residents of the same state, and one of them 
 leaves the other and goes to another state, and in a suit brought 
 ther^ obtains a decree of divorce against the other, without any 
 service of process upon, or notice to the adverse party, or appear- 
 ance by the defendant, such decree will nowhere be recognized as 
 of any validity outside of the state where it was granted. The 
 court granting the divorce must have complete jurisdiction of the 
 subject-matter, and of both the parties, or the decree is regarded 
 as wholly inoperative out of the jurisdiction, whatever may be said 
 of it within that jurisdiction. This rule has been settled by 
 express adjudication in many of the states, and is just as binding 
 in cases of divorce, as in any other case. " It is held that no state 
 or nation has power to dissolve the marriage contract between 
 citizens of any other state or nation, not resident or domiciled 
 within its limits, for no nation could preserve its social order, 
 if any other foreign state could, without its consent, dissolve or 
 disturb that most important domestic institution of marriage." 
 {Maguire v. Maguire, 7 Dana^s R. 181. 2 Zenfs Com. 117, 118, 
 note. Vide also Bvm.n v, Dimn. 4 Paiges Ch. E. 426. lAjon v. 
 
CONCLUSION. 929 
 
 Lyon, 2 Gray's R. 367. Dorsey v. Dorsey, 1 Watfs B. 349. Bull 
 V. EuU, 2 /S^o5. ^s-. R. 174. J% v. FiZsow, 1 Dev. <& Bait. R. 
 568. Sarteau v. Harteau, 14 P*c^. ^. 181, 186. Telverton v. 
 Tdverton, 6 Jwr. iV^. /S 24.) 
 
 § 704. Much more miglit be said respecting the validity and 
 effect of a divorce granted in one State where one or both of the 
 parties are domiciled in another ; but it is not considered necessary 
 to pursue the subject any further in this place. Those who may 
 desire more information upon the subject, or upon the general sub- 
 ject of marriage and divorce, than is contained in these chapters, 
 are referred to the excellent work of Mr. Eishop on the law of 
 marriage and divorce, which has been freely and profitably con- 
 sulted in the preparation of these chapters upon the same subject. 
 
 And now this treatise on the law of infancy and coverture may 
 be appropriately concluded. The materials are abimdant for 
 enlarging the volume, but they would not add essentially to its 
 authority or value. The work is respectfully submitted to the 
 candor of the profession, in the hope that it will prove both con- 
 venient and useful. 
 
 117 
 
ALPHABETICAL IMEX. 
 
 A. 
 
 ABANDONMENT. Vide Desebtion. 
 
 ABSENCE, ^^„. 
 
 effect of on subsequent marriage, 844, 845 
 
 cause for divorce, when, 887, 888 
 
 ACCOUNT STATED, 
 
 infants not bound by, 41, 48, 173 
 
 of infants not void, but voidable only, 48 
 
 ACTION, 
 
 infants must appear in by guardian otprochein ami, 71, 193-207 
 
 in favor of infants, when, 133, 153, 191-303 
 
 on indentures of apprenticeship, defense of infancy to, 153 
 
 against infants for necessaries, when, 175 
 
 on recognizance in criminal case, when, 175 
 
 for rent, when, 175, 176 
 
 for acts required by law, when, 176 
 
 for their torts, when, > 176-185 
 
 involving negligence or want of skill, infancy bars, when,. . . . 176, 177, 185 
 
 against infants as bailee, when, 178, 179 
 
 for official acts, when, 179 
 
 for fraudulent representations, when, 179 
 
 against adults for negligence of infants, when, 185 
 
 difference between infants and adults, in respect to, 193 
 
 by in&nt executor, how prosecuted, 194 
 
 infant may prosecute in forma pcmperis, when, 198 
 
 infant parties to, favored by courts, when, 301-303, 206 
 
 plea of infancy in, 207 
 
 by husband for personal property of wife, when, 319, 364, 365 
 
 not against wife alone, when, 333 
 
 against husband, for wife's debts, when, 333-349, 353 
 
 for wife's necessaries, when, 339-349, 353 
 
 for wife's torts, wlen, 359, 361 
 
 in favor of husband and wife jointly, effect of, 383-385, 388 
 
 by husband, for wife's choses in action, when, 383-387 
 
 for debauching his wife, when, 476-478 
 
 by wife, for destruction of her own property, when, 498 
 
 for dower, when, 590-595, 597 
 
933 ALPHABETICAL INDEX. 
 
 ACTION— CONTINTJED. PAOB. 
 
 for dower, proof in, 613-615 
 
 by wife for debauching her servant, when, 661 
 
 for divorce, how prosecuted, • 895, 896 
 
 defense in, 901—911 
 
 ADMEAStTREMENT, 
 
 of dower, how made and rules in respect to, 593-605 
 
 on what principles made, 609-613 
 
 ADULTERY, 
 
 of wife, does iipt excuse husband from her support, when, 339, 340, 348, 349 
 
 of husband, justifies wife in leaving him, when, 346, 347 
 
 does not defeat curtesy, when, 420 
 
 maintenance, when 476 
 
 divorce for, bars dower, when, 576, 580 
 
 distinguished from fornication, how, 868, 869 
 
 cause for divorce, when, 872-876, 879, 884 
 
 definition of, 884, 885 
 
 ADVANCES, 
 
 to wife, pending divorce suit, when, 911, 913 
 
 not allowed as matter of course, 911, 913 
 
 AFFINITY, 
 
 an impediment to marriage, when, ..: 837-841 
 
 whatiSi ; 830 
 
 AGE, ' 
 
 of consent to marriage, what is, 56, 135-128, 130 
 
 want of, an impediment to marriage, when, 837 
 
 AGENT, 
 
 husband may be wife's, when, 639-643, 645, 646, 683, 748 
 
 ALABAMA, 
 
 testamentary giiar^ans in, 139 
 
 statute of limitations as to infants in, 167 
 
 actions by infants in, 194 
 
 general guardians of infants in, 255 
 
 liability of husband for wife's antenuptial debts in, 338 
 
 wife's real estate in, how conveyed, 511, 788 
 
 marital rights in, 786-788 
 
 wife's separate estate in, 786-788 
 
 husband controls wife's property in, when, 786-788 
 
 wife's property in, not liable for husband's debts, when, 786 
 
 wife's separate estate in, liable for necessaries, when, 787, 788 
 
 wife in, may make will, when, 787 
 
 wife's property in, descends to husband, when, 787 
 
 wife in, may act as feme-sole, when, 787 
 
 wife's separate estate in, how charged, . .-. 788 
 
 ALIENATION, 
 
 dower, defeated by, when, 534, 685, 538, 639, 561. Vide Real Estate. 
 
ALPBABETICAI, INDEX. 933 
 
 ALIMONT, p^a„ 
 
 to -wifeafter divorce, when, , 914-917 
 
 what is,..., 914, 9I8, 919 
 
 when wife is the offender, when allowed, 915, 916 
 
 in the discretion of thecoiirt, when, 91Q 
 
 ' amount of, rule in respect to, " 917, 9I8 
 
 not allowed for life of wife, when, 918 
 
 may be varied subsequent to decree, when, 918, 919 
 
 cannot be agreed upon before decree, when, 919, 920 
 
 reduction of, when made, 920, 921 
 
 how secured to the wife, 921 
 
 ANTENUPTIAL CONTRACT, 
 
 the lex loei eontraetus governs, when, 45^-454 
 
 in France, rule in respect to, 453, 454 
 
 marriage, a good consideration of, when, 454 
 
 trustees appointed to carry into effect, when, 454, 455 
 
 female infant barred by, when, 455, 460 
 
 intended husband and wife, the only necessary parties to, when, 455 
 
 wife not bound by, when, 456 
 
 necessary to protect wife's property, when, , 456 
 
 intention of, to be carried out, when,. 456, 458, 459 
 
 must be recorded, when, 456, 461 
 
 adult husband of infant wife, bound by, when, .• • 457 
 
 prt^rty secured by, liable for debts, when, ;. 457 
 
 power of wife under, 457 
 
 rule in Shelley's case applied to, when, 457, 458 
 
 construction of, 457, 458, 464 
 
 parol, when binding,, ,....,,,,..,,.., , 461 
 
 by a widow about to marry, when valid,, , 461 
 
 delivery of, w:hen presumed,. ., 462 
 
 effect of as to third persons, 462 
 
 legacy not embraced in, when, 462 
 
 wiU be corrected in equity, when, 463, 463 
 
 cannot be changed after marriage, when, 463 
 
 husband barred by, when, 463-465 
 
 specific performance of, when decreed, 464-466, 473 
 
 void as to creditors, when, 465, 466, 487 
 
 valid as to creditors, when, .465, 466, 483, 496 
 
 does not bar dower, when, 557, 560, 569, 573 
 
 no lien on husband's lands, when, 566 
 
 in Texas, effect of, 794 
 
 APPRENTICES, 
 
 infants bound as such, when, 144r-151 
 
 origin of law in respect to, 144, 145 
 
 parents may bind their children, when, 144, 148 
 
 public officers may bind minors, when, 145, 146, 148 
 
 statutes of the several states in respect to, 145-156 
 
 indentures of apprenticeship, what to contain, 146, 149, 151, 153 
 
 public officers, guardians of, when, 146 
 
934 ALPSABETICAL INDEX. 
 
 APPRENTICES— CONTiinJED. page. 
 
 refusal of to serve, liow punislied, 147, 153 
 
 indentures of, wlien to be diseliarged, ^ 147 
 
 minors coming from beyond seas may be bound, -when, 148 
 
 indentures of, may be assigned, when, » 148, 152, 154 
 
 discharged by death of master, wlien, 148 
 
 term of service of, how regulated, 151 
 
 master of, ijiay chastise, when, 153 
 
 defective indentures of, effect of, 153 
 
 indentures of, how executed by public officers, 153 
 
 master not liable for support of, when, 154 
 
 cannot be employed in menial services, when, 154 
 
 master entitled to earnings of, when, 154, 156 
 
 surety for, when liable, 155, 156 
 
 persons liable for harboring, when> 156 
 
 ARBITRATION, 
 
 submission to by infants, when voidable, .....; 55 
 
 ARKAJSrSAS, 
 
 statute of limitations in respect to infants in, 168 
 
 marital rights in, 792-794 
 
 wife in, may hold property clear of her husband, when, 792-794 
 
 personal property of wife in, vests in husband, when, 793 
 
 deeds from husband to wife in, when vaM, 793 
 
 wife's separate estate in, how charged, 793 
 
 wife in, cannot bind her husband, when, 794 
 
 ARTICLES OF SEPARATION, 
 
 not effectual, when, i 829, 353, 467-481 
 
 bar dower, when, 580 
 
 when valid, 469-471, 490 
 
 ASSIGNMENT, 
 
 of husband in bankruptcy, defeats dower, when, 557 
 
 of dower, rules in respect to, . . : 687-605, 609-612 
 
 ATTORNEY, 
 
 infants cannot appoint, when, 46, 47, 58 
 
 may appoint, when, 47, 51 
 
 rule that infants cannot appoint, criticised, 58 
 
 AVOIDANCE, ^ 
 
 of acts of infants, by whom, 57, 59-64 
 
 by infant during minority, when, 64, 65 
 
 of conveyances of real property by infants, when, 66-69, 72, 73, 
 
 of assignment of dower by infant, when, 67 
 
 of executory contracts of infants, rule in respect to, 67-69 
 
 of sale of chattels by infants, when, 68, 69, 72, 74 
 
 of matters of record, how effected, 68, 70 
 
 m pais, how effected, 68, 133 
 
 of contracts for service, how effected, 70, 73 
 
 to sell land by infants, how effected, 73, 74 
 
AhFSABETIOAL INDEX. 935 
 
 AVOIDANCE— CONTuniED. paqi,. 
 
 by infants, consequence of, 75, 80, 95 
 
 of contracts of marriage by infants, 135-131 
 
 of marriage settlements by infants, 133, 134 
 
 B. 
 
 BAB, 
 
 of dower, what is, 653-581 
 
 BASTARD. 
 
 who is, 125, 136, 333 
 
 eigne, who is, 160 
 
 evidence in respect to, : . . 283 
 
 legitimatized, when, 238, 384 
 
 peculiarities and rights of, 285, 336 
 
 guardians for, how appointed, 234, 253, 359 
 
 marriage of, who to consent to, 375 
 
 not favored in law, when, 275 
 
 custody of, rule in respect to, 284, 385 
 
 guardianship of, on marriage of mother, i.. 385 
 
 BIGAMY. 
 
 husband guilty of, vrife may have dower, when, 583 
 
 BINDING ACTS, 
 
 of infants, what are, 49, 131-158 
 
 contracts of infants for necessaries are, when, 57, 99«-113, 117, 131 
 
 ofBcial acts of infants are, when, 121, 123 
 
 acts of infant executor and administrator are, when, 125 
 
 consummated contracts of marriage of infants are, when, . . . . : 135 
 
 acts of infants which the law requires are, when,, 189, 141 
 
 bonds of infant putative father of bastard are, when, 140 
 
 infants' assignments are, when, ' 140 
 
 acts of infants of necessity are, when, 140 
 
 required by the court are, when, 140 
 
 not excepted by statute are, when, 141, 143 
 
 by statuteauthority are, when, 143 
 
 enlistments of infants in the army and navy are, when, 143, 148 
 
 by infants as substitutes are, when, 143 
 
 infants' indentures of apprenticeship are, when, 144-151 
 
 apprenticeships by custom of London are, when, 144 
 
 acts of infant trustees are, when, 156 
 
 infant's liability in respect to, 175 
 
 BONDS, 
 
 antenuptial, when valid, *v5 
 
 marriage of parties to, in New York, effect of, 650, 651 
 
 of married women in New York, when bmding, 655, 656 
 
 Vide Wife. 
 
 BURIAL GEOUNDS, 
 
 no dower in, when, """ 
 
936 ALPSABETICAL INDEX. 
 
 BUSINESS, PAOB. 
 
 married women in New York, may Garr7on, when, 636, 639-^47 
 
 . . Tide WiFB, 
 
 0. 
 
 CALIFORNIA 
 
 statute of limitations in respect to infantajn, 167 
 
 testimony of husband and wife in, rule in respect to, 326 
 
 husband liable for wife's antenuptial debts in, when, 338, 339 
 
 wife's real estate in, how cpnyeyed, 513 
 
 .curtesy and dpw?r in,.. 532, 759, 760 
 
 marital rights in, 758-765 
 
 wife's rights of property in, 758, 759 
 
 husband's control over wife's. property in, 758, 759 
 
 community property jn, rule in respect to, 759-761 
 
 , femeri^ert,iu, hpw tQ sue and be, sued, 759, 761-763 
 
 wife in, may carry on business, when, 759 . 
 
 may dispose, of property and make will, when, 759, 760 
 
 community propei:ty in, hpw disposed of on death of parties, 760, 763 
 
 lands of wife in, how conveyed, 761-763 
 
 husband may settle property on his wife in, when, 76i 
 
 wife's Mortgage to secure husbands debt in, when valid, 761 
 
 antenuptial contracts in, when valid, , 761, 763 
 
 wife in, may make contracts, .when, 763 
 
 trustee /)f wife in, when necessary, 763 
 
 promissory npte of wife in, when void, 763 
 
 wife's title to property in, how held, 763-764 
 
 claims of wife to property in, when protected, 763-765 
 
 wife in, may be sole trader, when, 763, 764 
 
 separate estate of wife in, how charged, 764, 765 
 
 CANON LAW, 
 
 in rfespeCt to marnage of ihfaiits, rule of, 130, 131 
 
 CAPACITY, 
 
 of infants to hoM offices, 38, 131, 133 
 
 to act as executor or administrator, 41, 123 
 
 to contract for necessaries, 57, 99-107 
 
 to deed land, 123 
 
 . tp.ao^. by attorney,.... 123 
 
 to hold property,. 123, 123 
 
 to jirosecujte actions 123 
 
 to grant copyholds, 123 
 
 to present to a church 123 
 
 to contract marriiige, rule in respect to, 135-131 
 
 to do homage, 1 31 
 
 ttfmakewili, 40,47,133 
 
 to commit crime, 132 
 
 to declare uses, 132, I33 
 
 to execute. marriage settlements, 133-188 
 
ALPHABETICAL INLEX. 937 
 
 ' CAPACITY— CoNTHftTED. p^gj. 
 
 of infants to nsme guardian, ^^ 
 
 , to make contracts tlio law requires,. , I39 
 
 to bind themselves as apprentices, 144-lSl 
 
 Tide WiFB. 
 CHARGES, 
 
 doweress to pay oflE", when, ■. 633-635 
 
 on wife's separate estate, how made, and when valid,. . , . 653, 654, 658, 659 
 
 enforced in equity, when,. - 658 
 
 CHATTELS REAL, 
 
 husband's estate in, 867-371 
 
 what are, ; 368, 369 
 
 retained by wife, when,.... 368-370 
 
 of wife, liable to husband's debts, when, 370 
 
 Vide Mabttal Rights. 
 CfflLDKEU, 
 
 are illegitimate, when, 125, 126, 233 
 
 are legitimate, when, 333, 234 
 
 evidence of legitimacy of, 234 
 
 illegitimate, rights of, 235 
 
 CHOSES IN ACTION, 
 
 of wife, belong to husband, when, , . 873-389 
 
 husband's title to, conditional, when,.. 374 
 
 possession of, wife's, when, axiAince versa, ,... 377 
 
 of wife, how reduced to possession by husband, 378-390 
 
 survivorship of wife in respect to, 375-383 
 
 wife entitled to provision out of, when, 389 
 
 CIVIL CONDITION, 
 
 an impediment to marriage, when, 843, 843 
 
 CIVIL DEATH, 
 
 what constitutes, and effect of, 885 
 
 CIVIL LAW, 
 
 in respect to InfEincy, rule of, 83 
 
 to testament of chattels, rule of, 40 
 
 to marriage of in&nts, rule o.f, 131 
 
 rule of, in respect to infants in ventre sa mere, 239 
 
 to marriage of vridow^s, 335 
 
 to guardians of in&nts,. 337 
 
 COHABITATION, 
 
 evidence of husband's assent to wife's contracts, when, 340, 343, 344 
 
 346, 355, 356 
 
 evidence of marriage, when, 859, 866 
 
 presumed to be innocent, when, 866 
 
 evidence of condonation in divorce cases, when, , 903, 904 
 
 COLORED PERSONS, 
 
 may intermarry with white persons, when, 635 
 
 may have dower, when, .i 535, 536 
 
 not allowed to intermarry with white persons, when, 841, 843 
 
 lis 
 
938 ALPHABETICAL INDEX. 
 
 COMMUNITY, PAGK. 
 
 property, •what is, and rules respecting it, 790-792, 794-803 
 
 CONDONATION, 
 
 bars a divorce, when, 903-905 
 
 definition of, 903 
 
 evidence of, rules in respect to,.. 903-905 
 
 CONFIRMATION, 
 
 by infant, -what is, 50 
 
 of voidable acts of infants, how effected, 80-99, 104 
 
 rule in respect to, criticised, 98, 99 
 
 CONNECTICUT, 
 
 infants cannot serve process in, when, 37 
 
 testament of chattels by infants in, rule in respect to, 40 
 
 apprentices in, rules in respect to,. 149 
 
 minor children in, how employed in factories, 150 
 
 statute of limitations, rule in respect to infants in, 165 
 
 general guardians of infants in, rule in respect.to,; 355 
 
 husband not liable for wife's antenuptial debts in, when, 838 
 
 deeds to husband and wife in, effect of,.. 503 
 
 wife's real estate in, how conveyed, 508, 509 
 
 dower barred by jointure in, when, 565 
 
 marital rights in, 710-713 
 
 wife in, may hold property, do business, and have her earnings in, 
 when, 710-713 
 
 CONNIVANCE, 
 
 bars a divorce, when, 901-903 
 
 what is, 903 
 
 CONSi|fGUINITT, 
 
 an impediment to marriage, when, 837-841 
 
 what is, 839 
 
 CONTRACTS, 
 
 of infants, when void, 43, 43, 45, 46, 48, 136, 130 
 
 voidable only, when, 43, 44, 46, 51, 53, 55, 56, 136, 130 
 
 who may avoid, 59-64 
 
 when to be avoided, 64-69 
 
 how disaffirmed, 70-75 
 
 effect of disaffirmance of, 75-80, 95 
 
 of infants, how confirmed, 80,99, 104, 130 
 
 confirmation of to be in writing, when, 96 
 
 of infants for necessaries, when valid, 99-106, 116 
 
 of marriage by infants, when valid, 55, 56, 135-131. 
 
 settlements by infants, when valid, 133, 138 
 
 of infants which the law requires, when binding, 139 
 
 of apprenticeship by infants, when binding, 144-151 
 
 infants may sue on, when, 191 199 
 
 between husband and wife, when valid, 313, 339, 330 
 
 of wife, husband liable on, when, 339, 340, 346, 348 
 
ALPBABETICAL INDEX. 939 
 
 CONTEACTS-'CoNTnrDED. 
 
 PAOIE. 
 
 to husband and wife, husband may Bue on, when, 333 
 
 of wife in New York, when binding, 653, 655, 656, 660 
 
 of marriage, when vaJid. F«ie Maekiagb. 
 of wife, when binding. Vide Wife. 
 
 COSTS, 
 
 against infanta, when allowed, 205, 208-310 
 
 when prochein ami, liable for, 207 
 
 on sale of infant's land, when allowed, 307 310 
 
 in actions for dower, rule in respect to, , 59I 
 
 in proceedings in equity for dower, when allowed, 637, 628 
 
 Vide Abtances. 
 
 COVERTURE, 
 
 meaning and origin of, 3I3 
 
 disabilities of, and reason therefor, '. 313 
 
 CRIME, 
 
 infant responsible for, when, 133 
 
 conviction of, cause for divorce, when, 885 
 
 Vide Wipe. 
 
 CEUELTT, 
 
 cause for divorce, when, 885, 887 
 
 legal definition of, i 886 
 
 CURTESY, 
 
 tenancy by, requisites for, 231 
 
 husband entitled to, when, 398, 431 
 
 derivation and origin of, 398, 399 
 
 husband's estate by, nature of, 898, 400 
 
 marriage, seisin, issue and death of wife, requisite to, 399 
 
 must be legal, and seisin actual, 899 
 
 issue must be bom alive and of the human species,. . , 399, 413 
 
 in life of mother,.. 399, 400, 413, 413 
 
 such as may inherit, 400 
 
 whether in conditional or contingent, estate, discussed, 401-413 
 
 seisin of wife, a requisite for, 413-415 
 
 does not attach to a mere remainder or reversion, 415 
 
 had in proceeds of wife's land, when, 415, 416 
 
 in equitable estate, when, 416, 417 
 
 defeated, how, 417, 430, 431 
 
 privileges of husband by,. ' 417, 418 
 
 liability of husband by, 418 
 
 when consummate, 418 
 
 interest by, may be taken on execution, when, 418, 419 
 
 passes to assignee in bankruptcy, when, 419 
 
 tenant by, must be able to hold real estate, 419, 420 
 
 abolished by statute, when,. 431, 533 
 
 Vide Statutes. 
 
 CUSTODY OP INFANTS, 
 
 right of the father to, when, 273-387 
 
 of the mother to, when, 274-387 
 
940 ALPHABETICAL INDEX, 
 
 CUSTODY OF INFANTS— CONTDTOED. paqb. 
 
 power of the courts in respect to, 275, 278, 280—283, 287 
 
 infant may elect in respect to, when, 281, 283, 286 
 
 wel&re of child governs, when, 281-285 
 
 may be transferred by father, when, 283, 284 
 
 of illegitimates, rule in respect to, 284-386 
 
 right of guardians to, when,.... 286, 387 
 
 order in respect to,, how enforced, 388 
 
 in dower right, of wife to, • • 751 
 
 D. 
 
 DAMAGES, 
 
 on recovery of dower, when allowed, 606 
 
 in dower, how estimated, .,. 606-609 
 
 Fide Judgments. 
 
 DEAF MUTES. 
 
 may mariy, Trhen, • 830 
 
 DECREE. Yv3a Judombnts. 
 
 DEED, 
 
 of married woman, when valid and when not, 315, 497, 498 
 
 between husband and wife, when void, 329, 330, 467-481, 638, 639 
 
 to husband and wife; eflfectof,.. 495, 498, 499 
 
 of wife's real estate, how executed, 505-514, 657 
 
 of husband and wife, bars dower when, 554-560 
 
 F«i« Makitaii Eights. 
 
 DELAWARE, 
 
 statute of limitations in respect to infants in, 166 
 
 marital rights in, 730, 731 
 
 common law governs in; when, 730 
 
 antenuptial will of husband in, effect of, 730 
 
 husband's property in, taken fol: wiffe's support, when, 730 
 
 "wife in, cannot make will or appoint an attorney, 730 
 
 wife's property in, husband's title to, 731 
 
 wife's covenant in, not binding, when,.. 731 
 
 Vnfe in, cannot transact business, when, 731 
 
 wife's land, how coaveyed, 731 
 
 DESERTION, 
 
 cause for divorce, when, 873, 873, 879, 887-891 
 
 definition of, and what is, 888-890 
 
 laws of the several states in respect to, 888-890 
 
 separation of parties, not, when, 890, 891 
 
 DEVISE, . . 
 
 bars dowerj when, 565-569, 572 
 
 jointure, ■yrhen, 571 
 
 DISABILITY, 
 
 of infants, rule in respect to, 37 
 
 YiAi Infants. 
 of husband and wife, rule in respect tq, 811-331,433 
 
ALPSABHTIOAL IIWMX. 941 
 
 DISABILITY— CONTINTJBD. ^^^^ 
 
 of married women, ggw gog 
 
 Vide WiPB. 
 
 DISAFFIRMANCE. 
 
 of infant's acts, what is, 70-74 
 
 consequence of, , 75-80 
 
 DISCRETION OP COURT, 
 
 may be exercised in respect to divorce, when, 883, 883, 898, 894 
 
 to alimony, when, 916, 017 
 
 DIVORCE, 
 
 terminates husband's control of wife's lands, when, 897 
 
 wife acquires power over her own lands by, when, 397 
 
 defeats curtesy, when, 431^ 932, 934 
 
 a mnculo matrimonii, how obtained, 468 
 
 wife may do business as feme^ole after, 487-489 
 
 bars dower, when ^,,. 575, 933, 934 
 
 entitles wife to dower, when, i 583, 584 
 
 definition of, 867 
 
 the policy of, opinions in respect to, 868, 871, 880, 881 
 
 among the iincient Jews, when allowed, 868, 869 
 
 Christ's view of, 868, 869 
 
 among the ancient Greeks, when allowed, , 869, 870 
 
 Romans, when allowed, 870, 871 
 
 in France, when allowed, 871, 873 
 
 in Prussia, when allowed, 873, 873 
 
 in England, when allowed, 873-875 
 
 in New York, history of, 875-877 
 
 in South Carolina, none allowed.......... 877, 878 
 
 in New Hampshire, history of and when granted, 878, 879 
 
 in North Carolina, history of and when granted, 879, 880 
 
 different kinds of, absolute and limited, , 883 
 
 discretion of the court in respect to, how exercised, 883, 883 
 
 limited, objections to, 883, 895 
 
 legislative, when and for what causes granted, 8S3, 884 
 
 absolute, causes for, 884-894 
 
 adultery a cause for, when 884, 885 
 
 impiigonment, cause for, when, 885 
 
 cruelty, cause for, when, 885-887 
 
 desertion, cause for, when, 887-891 
 
 willful neglect, cause for, when, 891 
 
 habitual drunkenness, cause for, when, 891, 893 
 
 pergonal indignities, cause for, when,. 893, 898 
 
 in discretion of the court, when, 893, 894 
 
 jurisdiction of courts in c£ise of, how obtained, 894 
 
 conditional, effect of and when granted, 894, 895 
 
 action for, how prosecuted, 885-901 
 
 defense to, .'.... 901, 911 
 
 advances to wife pending suit for, when allowed, 911, 913 
 
 decree in action for, its effect, 913, 914, 921-935 
 
942 ALPHABETICAL INDEX. 
 
 DIVORCE— CONTISTOED. PAOE. 
 
 costs in action for, to wife, when allowed, , = 5 914 
 
 alimony after decree of, when allowed, 914-921 
 
 a mmaa et tlwro, effect of, c « » 933, 934 
 
 decree of, conclusive, when, 935-939 
 
 foreign, effect of, 936-939 
 
 DOMICILE, 
 
 law of in respect to infancy, 35, 130, 311 
 
 in respect to promissory note of infant, law of, 311 
 
 of hiisband, that of the wife, when, ■. . 743 
 
 ■ jaatrimonial, governs, when, 789, 790 
 
 DOWEE, 
 
 assignment o oy infant, when allowed to he correctea, ; 67 
 
 on sale of infant's land, how adjusted, 304 
 
 wife cajmot release to husband, when, ■ 830 
 
 whether in conditional or contingent estates, discussed, .' . 403-410, 575 
 
 barred by post-nuptial agreement, when, 470 
 
 what it is and how defined, 515, 516 
 
 inchoate, when, ' 515 
 
 origin of,. 515-517 
 
 in the middle ages, what, 516 
 
 reason and object of,. 518, 519 
 
 is a legal and moral right, when, 518 
 
 different kindsof, .■ 519, 530 
 
 at common law, requisites for, 530, 531 
 
 an alien widow- excluded from, when,. 531-534 
 
 abolished in Indiana, Texas and California, 533 
 
 color in respect to, effect of, 525, 536 
 
 widow of attainted person, entitled to, when, 536 
 
 seisin of husband, requisite for, when, 536-538, 545 
 
 none in equitable estate, when, 537, 549-551 
 
 death of husband, a prerequisite for, when, 538, 581-583 
 
 may be recovered conditionally, when, 538 
 
 birth of issue, not requisite for, when, 539, 530 
 
 out of wha,t property allowed, 530-553 
 
 defeated by alienation of husband,, when, 534, 535, 561 
 
 in case of partition, how allotted, 539 
 
 in lands held in common, rule in respect to, 539-541, 548 
 
 in mortgaged lauds, when allowed, 541-545 
 
 in lands subject to a lien, when, 543 
 
 where legal and equitable titles meet, when, 543-546, 549 
 
 not in remainders and reversions, when, 544 546 
 
 in rents, when allowed, 547 
 
 in lands held in joint tenancy, when, 547 543 
 
 in trust estates, when allowed, 54g 553 
 
 in insurance money, when, 55O 
 
 in land contracts and railroad stock, when, 549 550 
 
 in stock of land company, when, 55I 
 
 upon dower when, 55I 
 
ALFSAJBETIOAh INDEX. 943 
 
 DOWER— CONTDfTJBD. PAOE. 
 
 not in lands appropriated to public use, when 551-553 
 
 how barred or defeated, 553-581 
 
 taken subject to all equities, when, 675, 576 
 
 in husband's lands on divorce, when, 577 
 
 assignment of, rules in respect to, 581-605, 609-612 
 
 is consummate, when, 581-584, 615 
 
 nature of estate of^ before assignment of, 584, 585 
 
 assignment of, by whom made, 587, 588, 597 
 
 maybe assigned by parol, when, 588, 589 
 
 after assignment, nature of estate of, 589, 615-617 
 
 recovered by writ unde nihil hdbet, when, 589, 590, 606 
 
 assignment of, by commissioners, when, 590-604 
 
 ejectment for, when proper, 590-593 
 
 admeasurement of, when conclusive, 603, 604, 613 
 
 damages on recovery of, when proper, 606-609, 636, 627 
 
 action for, proof in, 613-615 
 
 taken subject to incumbrances, when, 616, 617 
 
 proceedings in equity to recover, 618-623 
 
 assignment of, in equity, when, 618, 619, 625 
 
 costs in equity to recover, when allowed, 637, 628 
 
 tenant in, rights and liabilities of, 633-635 
 
 in New Hampshire, rule in respect to, 683, 684 
 
 Vide WiFB. 
 
 DOWBEESS, 
 
 her estate, nature of, » 584 585 615-617 
 
 her seisin, that of her husband, when, 616 
 
 takes the estate subject to incumbrances, when, 616, 617 
 
 favorite of the law, when, 630 
 
 privileges in her estate, rule In respect to, 633 
 
 her light to emblements, when, 631, 633 
 
 liability of in respect to the estate, 633-635 
 
 DRUNKENNESS, 
 
 avoids marriage contract, when, 839, 830 
 
 no excuse for crime, when, 839, 830 
 
 cause for divorce, when, 873, 873, 887, 891, 893 
 
 habitual, what constitutes, • — • 893 
 
 DURESS, 
 
 avoids marriage contract, when, 846-849 
 
 E. 
 
 EMBLEMENTS, 
 
 on wife's land at husband's death, how disposed of, 397 
 
 belong to tenant on lease lands, when, 398 
 
 on dower lands, widow's right to, 631-633 
 
 after divorce, who entitled to, ""3 
 
 ENGLAND, 
 
 termination of infancy in, °^ 
 
 confirmation of infants' promises in, to be in writing, when, 96 
 
944 . ALFSABMTICAL INDEX. 
 
 ENQLAKD— CoNTiNlTED. pagb. 
 
 marriageof infants in, rule in respect to, 128, 129 
 
 homage bj.iufants in, 181 
 
 fines and recoveries by infants in, 133 
 
 statute of limitations In respect to infants in, 163, 164 
 
 action by infants in, how. prosecuted, 197, 198 
 
 children in. ventre aa mere in, rights of, 236, 227 
 
 who are considered bastards in, : 233 
 
 custody of infants in, rule.in respect to, 276-278 
 
 maintenance of infants in, rule-in respect to, ■ 289 
 
 dower in, rules in respect to, . . '. 521, 532, 528 
 
 divorce in, rules in respect to, > 873-875, 883 
 
 decree of divorce in, nid, when^ 913 
 
 ENLISTMENTS. 
 
 of in£ints in army and navy, when binding, 142, 143 
 
 in volunteer company, when binding, 143 
 
 EQUITY, 
 
 dower in, proceedings to recover, ...- 618-628 
 
 courts of,. have jurisdiction in cases of dower, when, 618, 630, 635, 636 
 
 dower, how assignedin, , G18, 619, 635 
 
 favored.in, when, 630 
 
 whether plea of purchase without notice, available in, 631-633 
 
 dower can only be recovered in, when, 623, 624 
 
 mesne profits and damages in dower, when recovered in, 636, 627 
 
 costs in dower cases, when recovered in, 637, 623 
 
 ESTOPPBLi 
 
 not applicable to in&nts, when, 96 
 
 different rule,'When, ..........' 96, 97 
 
 • applicable to infantson craning of age, when, 96-98 
 
 in cases of dower, when applicable;.. 613 
 
 not applicable to /e»?ie^!o»er*, when, 703, 726, 727, 731, 733, 754 
 
 applies to feme-covert in Oregon, when, 758 
 
 EVIDENCE, 
 
 in case of necessaries, bordeil of,. ..■.■.. 118-120 
 
 of infancy, burden Of, . . . . ... . . 119, 211-214 
 
 against infants, tule in respect to,. 185 
 
 of birth of children alive, what, 231 
 
 of legitimacy of children, what;. . . ; 233 
 
 in case of dower, of death of husband, what, 538, -539 
 
 parol, to explain will, rule in respect to, 569 
 
 m cases of dower, rule in respect to, 612-615 
 
 of marriage, what is, 865, 886 
 
 EXCHANGE, 
 
 . of lands by infants, when voidable, , 56 
 
 EXECUTOR, 
 
 infant, the rule in respect to, , ,.,. 41, 123, 124 
 
 . infant, how to sue, 194, 195 
 
ALPMABETIOAL INDEX. 945 
 
 F. 
 FEME-COVERT. Vide Wife. 
 
 FEME-SOLE, , p^^gj. 
 
 wife may act as, when, 431. 433^ 484-486 
 
 Vide WiPB. 
 
 FLORIDA, 
 
 will of infants in, rule in respect to, ;...,. 40 
 
 statute of limitations in respect to infants in, 167 
 
 husband liable for wife's antenuptial debts, when, 338 
 
 marital rigfhts in, 1 785, 786 
 
 wife's property in, held as her separate estate, when, 785, 786 
 
 husband controls wife's property in, when,. 785, 786 
 
 wife's property in, how sold, 786 
 
 wife in, may make will, when, , 786 
 
 descent of wife's property in, rule in respect to, , . . 786 
 
 wife's separate estate in, liable for debt, when, 786 
 
 FOENICATION, 
 
 what is, and how it affects the marriage relation, 868, 869 
 
 meajis adultery, when, 869 
 
 FRANCE, 
 
 illegitimate children in, rule in respect to, 233 
 
 antenuptial contracts in, r(de in respect to, 453, 454 
 
 divorce in, when allowed, 871, 873 
 
 FRAUD, 
 
 vitiates transactions, when, 543 
 
 avoids contract of marriage, when, 849-859 
 
 G. 
 
 QEORGLi, 
 
 statute of limitations as to infants in, ' 167, 170 
 
 husband's liability for wife's antenuptial debts in, when, 338, 784 
 
 wife's real estate in, how conveyed, '. 611 
 
 marital rights in, 784, 785 
 
 wife's property not liable for husband's debts in, when, 784, 785 
 
 wife may control her own labor in, when, 784 
 
 wife's property in, vests in husband, when, 785 
 
 husband may give property to wife in, when, 785 
 
 wife's obligations in respect to her separate estate in, r . . 785 
 
 wifein, may ]:>e freedsaler, when, '. 785 
 
 GERMANT, 
 
 illegitimate children in, rule in respect to, 233 
 
 GESTATION, 
 
 period of, how calculated, 234 
 
 evidence of, S34, 235 
 
 GIFTS, 
 
 from husband to wife, when valid, 490-495 
 
 GREEKS, 
 
 divorce among, when allowed, 869, 870 
 
 119 
 
946 ALPHABETICAL INDEX. 
 
 GUABDIAN, PAGE. 
 
 cannot avoid act of infant, wlien, : 63 
 
 infant may nominate, when, 138 
 
 <es*£wrae»^ory, whpis, and liov appointed, » 139, 348, 253, 354 
 
 statute of limitations not applicable to, ■when, 171, 173 
 
 infants not prejudiced hy misrepresentations and omissions of, when, . . . 173 
 
 , court of chanqery. is, when,, , 173 
 
 ffld litem for infants, when necessary and how appointed,. .193,' 193, 195-197, 
 
 303-207, 271, 373 
 
 how differsfrpm prochem ami, 195 
 
 ad Ut&m., may he removed, when, 201 
 
 in suits againstinfants, duties of, 304, 207 
 
 . a^,K<«m,may employ an attorney, when, 305 
 
 . ./or totar^.ho'K appointed, 335, 353, 259 
 
 different kinds of, for infants, by the common law and by statute, 237 
 
 at common Icm, rules in respect to, , 237-247 
 
 in cTmaJ/ry, origin of and powers and duties of, 237,. 238 
 
 how perfected and when terminated, 238, 239 
 
 —~ in adeage, who may be and how appointed, 239-341 
 
 rules in respect to, 339-343 
 
 h/ natwe, powers and duties of, , 241-345 
 
 • Jy nv/rtwre, who is; and pbWers and duties of, 245-247 
 
 ly statute, powers and duties of, and rules in respect to, 347, 248 
 
 teatametita/ry,-povferB and duties of, and rules in respect to, . . . 349-353, 364, 
 
 268, 374 
 
 general, a.ppoiniment of, and powers and duties of, 358-368 
 
 accounts of, what to contain, and may be investigated, when, 268-270 
 
 services of, how paid, 371 
 
 speeiai, how appointed and duties- of, 273 
 
 entitled to custody of ward, when, 286, 387 
 
 ' maintenance of ward by, rules in respect to, 291-395 
 
 may sell infant's real estate, when, 396-298, 302-308 
 
 A; to sell infant's 'lands, rules in respect to, 302-308 
 
 H. 
 
 HABEAS CpEPIJS, 
 
 to obtain custody of infants, when proper, 274 
 
 power of courts on, 375 337 
 
 in favor of mother of infant, when, 378, 279, 381-286 
 
 gniardian may have, when, 388 
 
 . ■'^liat triable on, and when principle of res adjridicata applicable to, 287 
 
 HOLLAND, 
 
 illegitimate childrpn in,. . . , 233 
 
 HOMiESTEAD, 
 
 in New Hampshire, law in respect to, g83 684 
 
 in Vermont; law in respect to;.. ■ g8g ggj 593 
 
 in Minnesota, law in respect to 75O 751 
 
 in Tejas, law in respect to, 79g' 797 
 
ALPHABETICAL INDEX. 947 
 
 HUSBAND, Piaj,. 
 
 cannot contract with, his wife, when,. , 313, 329 
 
 his relations to his wife, , 314, 330 
 
 holds his wife's personal property and earnings, when, 319, 361, 365, 
 
 395, 497 
 
 disabUities of, 330-335 
 
 may be witness for and against wife by statute, when, 335-328 
 
 liable for his wife's debts, when, 333, 355, 497 
 
 principle on which is liable for wife's debt, 832, 333, 361 
 
 may administer on wife's estate, when, 335, 365, 371 
 
 liable for wife's devastavit, when,. 335, 836 
 
 discharged from wife's liabilities, when, 836, 837 
 
 liable for wife's necessaries, when, . , 889-349, 352-356 
 
 y liable for wife's crimes fmd torts, when, 359 
 
 principle on which liable for wife's torts and debts, 361 
 
 must reduce wife's property to possession, when, 363, 864 
 
 entitled to avails of wife's realty, when, 364, 394, 450 
 
 evidence of title to. vrife's personal property, 363, 364, 448 
 
 survives to wife's personal property, when, . 366, 367, 369-371 
 
 his estate in chattels real of wife, 867-371 
 
 may devise wife's term, when, , 873 
 
 does not take wife's personalty, when, : 373 
 
 his title to wife's choses in action, and how acquired,. 373-393 
 
 cannot assign wife's contingent interest in choses in action, when, . . 380, 881 
 
 may sue without joining wife, when, 883-387 
 
 not entitled to wife's interest, when, 391 
 
 his interest in his wife's land 893-431 
 
 may convey or mortgage Wife's laiid, when, 394-397 
 
 has tenancy by the curtesy, When,. 398-421 
 
 his power over his wife's paraphernalia, ■ . • . • ^3, 434 
 
 his marital rights id trust property, 430 
 
 trustee for his wife, when........ 481,433,441,455 
 
 must perform antenuptial agreement, when, 443-466 
 
 maybe wife's debtor, when, ..;.... 448, 449, 494 
 
 must discharge mortgage to his Wife, when, 450 
 
 his post-nuptial contracts, when binding, and rules in respect to,. . . 467-483 
 
 renounces his right to wife's person, when, • . .47^-478 
 
 may permit his wife to do business, when, 483, 495, 496 
 
 loses his right to his wife's earnings, when, 484-486 
 
 gifts from, to wife, when good, 490-495 
 
 entitled to securitiee given to wife, when, 496 
 
 joint grants to him and wife, effect of, 498-504 
 
 must join in wife's conveyaiuce, when,.. ' • • 504r-514 
 
 wife's dower right in his land, rules in respect to, 515-535 
 
 may be agent foi; his wife,. when, • 639-643 
 
 marital right of, in New York, ...635-673 
 
 may not open vrife's correspondence, when, >- 779 
 
 Vide Mamtai- Rights. 
 
948 ALPHABETICAL INDEX. 
 
 HUSBAND AND WIPE. pasb. 
 
 their rights to the custody of their children, rules in respect to,. . . . 373-378 
 
 mutual disabilities of,. 335-331, 490 
 
 cannot remove disabilities of, Trhen, • • • 339 
 
 deed of separation by, not eflfectual, when, 339, 353, 467-481 
 
 covenants of, to trustees, when valid, 330, 331 
 
 gifts between, rule in respect to, 330, 490, 495 
 
 actions against for wife's antenuptial debts, 333-337 
 
 must be joined in actions, when, 333-337, 359 
 
 may be jointly indicted, when>. ; 360, 361 
 
 contracts to jrantly, effect of/; , 384 
 
 one person in law, when, 389, 490 
 
 lease of wife's lands by, effect of,. ^ 396 
 
 . transactions between, when binding, 447, 448, 451, 490-495 
 
 mortgage to jointly, how discharged, '. 450 
 
 antenuptial agreements of, rules in respect to, 453-466 
 
 post-nuptial contracts, of, rules in respect to, 467-483 
 
 articles of separation between, when valid, 469-471, 490 
 
 grants to jointly, effect of, 498-504 
 
 not joint tenants, or tenants in common, when, 499, 500 
 
 must join in conveyance of wife's land, when, 504r-514 
 
 Videi MAMTAii Rights. 
 may be witnesses for and against each other after divorce when, 933 
 
 L 
 
 ILLINOIS, 
 
 infancy of females in, 34 
 
 wills of infants ill, when valid, , ,. 40 
 
 infants in, may act as executors, when, 124 
 
 age of consent to marry in, what is, •. 127 
 
 statute of limitations in respect to infants in, 168 
 
 dower in, barred by jointure, when, 565, 566 
 
 marital rights in, 741-744 
 
 wife in, may act aa feme-sole, when, ' 741-743 
 
 wife's separate estate in, how charged, 743 
 
 IMPEDIMENT, 
 
 to .marriage, what is, . , ■ 837-845 
 
 impotence is, when, 827-836 
 
 consanguinity, is, when,.. 837-841 
 
 affinity is, when, 837--841 
 
 race or color is, when,....,.. , 841 843 
 
 civil condition is, when,. ..,.,. 843 843 ■ 
 
 prior marriage is, when, 843-845 
 
 canonical and civil, effects of, ..... , 863, . 863 
 
 IMPOTENCE, 
 
 ■wliatis, 833-834 
 
 an impediment to marriage, when, 833-836 
 
 discussions in respect to,.., 833-835 
 
ALPSARETIOAL INDEX, 949 
 
 IMPOTENCE— CONTHSTOKD. paoe 
 
 how proTed, 4 . . . ,, 886 . 
 
 cause for divorce, when, ,.... 873, 873, 877, 879 
 
 IMPEISONMENT, 
 
 cause for diyorce, when, 885 
 
 INDIANA, 
 
 age of consent to marriage in, what is, 127 
 
 testamentary guardians in, rule in respect to, 138 
 
 statute of limitations in, rule in respect to infants,. 163 
 
 < snitshy infants in, rule iu respect to,... 193 
 
 hastards in, how legitimatized, 244 
 
 custody of infants in, rule in respect to,..'. 281 
 
 testimony of husband and wife in, rule in respect to, ; 328 
 
 husband's liability for wife's antenuptial debts in, 388 
 
 wife's real estate in, how conreyed; 512, 738, 739 
 
 curtesy and dower abolished in,: ; . . ; ; 622, 741 
 
 tights of widow in, ..... 1 622, 523 
 
 marital rights in, ; 737-741 
 
 wife retains her own personal property in, when, , . 1 737, 738 
 
 wife's separate estate in, rules in respect to, 738,739 
 
 actionsby wife-, how prosecuted in;.. <.. 739, 740 
 
 wife in, may do -business, when, .:,. ; • . 740 
 
 ■ make -will; when, 1. 741 
 
 INDIANS, 
 
 their rights tci pi-bpertj' alrid dd-wer, rules in respect to,. 525, 526 
 
 marriage among, what is,. • . ■ • • • • 826 
 
 INFANCT, 
 
 ijerminates, when, ...... ......,.•.,.. ......... ..,..., • 33-35 
 
 when pleaded, burden of proof, and how tried, 65, 119, 210-213 
 
 fact of, how proved,. • • • • 213-214 
 
 INFANT, 
 
 who is, and who is notj •. ••• 33, 36, 37 
 
 is emancipated, when, 33-34 
 
 male and female, difference between, 34 
 
 law of domioUe in respect to, i . . . < 35 
 
 Tm lod andZea fori m respect to, ■..-.-.. ..-..-.■. ....... 36 
 
 disabilities of,.., • 37-41,46,47 
 
 liability of, 38, 99-112, 117, 131, 139, 174^185 
 
 may be witness, when, .,......,.•...•.<.' "" 
 
 may make -wiUj when, , ...;... 40, 47 
 
 Whatactsof are- void........... 41, 43, 47, 48 
 
 void and voidable acts of, how determiaed, 43-46, 48, 50 
 
 may plead infancy, when, 45/59-64, 68 
 
 voidableacts of, whatare, • • - • ■ • • ^^-^^ 
 
 . how confirmed, 60, 51, 80-99; 135, 126, 134 
 
 iudgments against, when valid, ' .. . • ; ... 53, 173 
 
 may be avoided, when, 65, 66, 173, 174, 215, 333 
 
 voidable acts of, when to be avoided, 64^-69, 126, 134. 135 
 
960 ALPSABETICAIi INDEX. 
 
 INFANT— Continued page. 
 
 voidable acts of, how disaffirmed, ;. ..•.....• 70-75 
 
 effect of disaffirmance of, 75-60, 95 . 
 
 confirmation of voidable acts of, to be in writing, when, 90 
 
 contracts of for necessaries, rule in respect to, 99-113, 117, 121 
 
 may hold what offices 131, 133, 175 
 
 property, when, 133 
 
 may act as attorney, when, 133 
 
 may be executor or administrator, when, 133, 124 
 
 may present to a church, when, 123 
 
 may contract marriage, when, 135-131 
 
 may do homage, when, 131 
 
 capable of committing crime, when, 133, 186-191 
 
 may declare uses, when, 132, 183 
 
 may execute marriage settlenients, when, 133, 134, 138, 460 
 
 may nominate guardian, when, • 138 
 
 contracts by, when binding,... ,. 139-141 
 
 may execute a power and convey land, when,. 141 
 
 may enlist into the army and navy, when, 143 
 
 may become an apprentice, when and how, 144-151 
 
 may sue for services, when, 153 
 
 may be trustee, when, , 156-158 
 
 barred by conditions in conveyance, when, 158, 159, 173 
 
 laches not imputed to, when, 159-173 
 
 not barred by statute of limitations, when, 160-173 
 
 action against must be established by proof, when, 173, 173 
 
 not barred by recitals in deed, when, 173 
 
 admissions of are evidence against, when, 173-185, 212 
 
 liable for what aetSi 174-191 
 
 cannot be discharged on execution, when, 185 
 
 age of discretion of, rule in respect to,. 186, 188, 190 
 
 appearance of in criminal cases, rules in respect to, 191 
 
 proof in criminal cases, when infancy set up, , , 191 
 
 may bring actions, when and in what cases, 191-303 
 
 how to bring and defend actions by and against, 193-307 
 
 ca,nnot be pognizpr in a fine, when, , . , 210 
 
 baptism of, how proved,. 213, 214 
 
 parol demurrer by, when allowed, , , , , 214-223 
 
 in ventre sa mere, who is, and right of, 233, 229, 230 
 
 when considered in esse, , , 234, 230, 231 
 
 guardianship of, , 237-272 
 
 •^ custody of, , 273-287 
 
 services of, who entitled, to, 274 
 
 maintenance of, rules in respect to, .. - ,. ., ; . . . . 279, 388-296 
 
 real estate of, how and when may be Bold, 396-308 
 
 contract of ancestor, when to be performed by, 808, 309 
 
 husband, liable for wife's antenuptial debts, when, 332 
 
 necessaries, when, 339 
 
 curtesy in proceeds of land oi feme-covert, when, 415, 416 
 
ALPBABETIOAL INDEX. 951 
 
 INFANT— CONTINTJED. p^aj,. 
 
 wife, barred by jointure, ■when, ' 565 
 
 may assign dower, when 587 
 
 barred by admeasurement of dower, when, 594 
 
 relief of, in case of improper assignment of dower, 604 
 
 /67»e-«<«!ert, may execute trust deed, when, 657 
 
 INSANITY, 
 
 cause for divorce in Prussia, when, 872, 873 
 
 IOWA, 
 
 marriage of infants in, rule in respect to, 127 
 
 apprentices in, regulations in respect to,... 150 
 
 statute of limitations iu respect to infants in, 169 
 
 ■ testimony of husband and wife in, rule in respect to, 326, 327 
 
 marital rights in, 751-753 
 
 wife in, may hold property and transact business, when, 751 
 
 have custody of her minor children, when, 751 
 
 re»l estate of wife in, how conveyed, 751-753 
 
 actions respecting' wife in, how prosecuted and defended, 751, 752 
 
 ' wife in, bound by her contracts, when, 752 
 
 transactions between husband and wife in, when valid, 752, 753 
 
 separate provisions for wife in, when allowed, •. 753 
 
 JOINTtrBE, 
 
 by Infants, when binding, • 133 
 
 when husband required to make, 137 
 
 by wards of court, rules in respect to,. 136-138 
 
 bars dower, when, 562-571 
 
 rules respecting, 570, 571 
 
 JUDGMENT, 
 
 againstinfants,when valid and when may be avoided,.. 52, 65, 66, 172-174 
 
 215-223 
 
 whenandhow avoided, 65, 66, 70, 71, 203 
 
 may not be avoided, when 160, 172, 203 
 
 cannot be taken against infants by default, when, 172, 173, 209 
 
 infancy may be pleaded to action on, when, : • • • 173 
 
 against infants, day must be| g^ven when, 173, 174, 215-223 
 
 may be opened against infants when, 174, 203, 205, 206 
 
 in respect to infants in ventre aa mere, , when binding, .....; 227 
 
 for wife's debts dum sola, how enforced, 336-339 
 
 against married women, form and effect of, 664, 665, 670 
 
 of wife against husband, when valid, - 728 
 
 in divorce cases, its effect, 913, 914, 921-925 
 
 JUDICIAL ACTS, 
 
 of infants, voidable when,. 56, 6? 
 
 • K. 
 
 KANSAS, 
 
 statute of limitations in respect to infants in, 169 
 
 testimony of husband and wife in, rules in respect to, 327 
 
952 ALPSABETICAL INDEX. 
 
 KANSAS— CONTEnJBD. PAGB. 
 
 marital lights in, 755, 75S 
 
 ■wife in, may hold property, and do bueineaa as feme-sole when,. . . . 755, 756 
 
 KENTUCKY, 
 
 apprentices in, Tegolations respecting, 150 
 
 etatnte c^ limitations in respect to infants in, 168, 170 
 
 gnardianship of infants in, rules in respect to, 255 
 
 Bale of infant's lands in, law in. respect to, 308 
 
 liabilityof husband for wife's antenuptial debts in, rule in respect to, 838, 771 
 
 deed to husband and wife in, effect of, 503 
 
 wife's real estate in, how conreyed,. , 611, 513 
 
 jointure bars dower in, when, , 566 
 
 marital rights in, 767-780 
 
 husband's interest in wife's property in, 767-769, 776 
 
 necessaries in, wife's property liable for, when, 768-770, 777 
 
 settlement of husband on wife in, when upheld, 769 
 
 transactions between husband and wife in, when upheld, 770 
 
 wife's separate estate in, how created and held, 770 
 
 contracts of wife in, when valid, 770 
 
 actions for and against wife, rules ia respect to, 771, 773 
 
 wife in, may act as feme-tole, when, 773 
 
 curtesy and dower in, law in respect to, 773, 773 
 
 corporate stock in, may be secured to wife, when, 778, 774 
 
 wife in, may make will, when, 774, 775 
 
 wife's real estate in, how conveyed, 775-778 
 
 rule in respect to domicile in 778, 779 
 
 husband in, not allowed to open wife's correspondence, when, 779 
 
 wife in, may act as sole trader, when, 780 
 
 L. 
 
 LACHES, 
 
 not imputed to infiints, when, 159-173 
 
 exceptions to the rule as to infants, 160 
 
 of trustees, do not prejudice infants, when, 170, 171 
 
 LANDS, 
 
 privileges of doweress in, 628 
 
 waste of by doweress, what is, ;.. 628-631 
 
 dower, emblements on, rule in respect to, 631-633 
 
 charges on, to be discharged by doweress when, 633-635 
 
 Vide Wipe, MiarrAL Biqets. 
 
 LEGACY, 
 
 to infint, interest allowed on, when, 163 
 
 to infants in ventre ta mere, when valid, 234 235 
 
 to wife, husband may recover, when, 383^ 395, 386 
 
 survives to her, when, 386 
 
 liable for husband's debts, when, 386 
 
 must be recovered in chancery, when, 386 
 
 payment of to wife, when void as to husband, 386, 387 
 
 bars dower, when, 564-569 
 
ALPHABETICAL INDEX. 953 
 
 LEVITICAL DEGREES, 
 
 FAOX. 
 
 marriage ■vrithin, when prohibited, 837 888 
 
 LEX LOCI, 
 
 governs as to domicile, when, 85, 86, 130 174 
 
 governs in respect to infant's contracts, when 211 
 
 LIABILITY, 
 
 of infants, rule in respect to, 38 57 
 
 for necessaries, when , .,.,,..;.. 99-105 
 
 for breach of trust, when, ', 158 
 
 for malfeasance in office, when, 174, 175, 179 
 
 as executor, when, , 175 
 
 for what acts,. 175, 176 
 
 for torts, when, 176-185 
 
 for criminal acts, when, 186-191 
 
 of parties, to infantSi when, 191-303 
 
 of proehien ami when, ...,.; i ; . . . . ao7, 309 
 
 of infant, on promissory note, when, .■ 311 
 
 of husband for wife's debts, when, 333-334 
 
 and torts, reason of, 333, 333, 361 
 
 torts, when, 334, 359, 361 
 
 as wife's administrator when, 334; 335 
 
 for wife's antenuptial .debts, statutes in respect to, 337-339 
 
 necessaries, when, 339-349, 353, 354, 359 
 
 criminal acts, when, 359-361 
 
 attaching to tenancy by. curtesy, what, 418 
 
 of doweress in respect to her la,nds, wliat, 633-635 
 
 LIMITATIONS, . . 
 
 infants notboimd by statute o^ when, 160-173 
 
 bovmd by statute of, when, 161, 163, 171 
 
 statute of, in respect to in&nts,- plea of and burden of proof, 170 
 
 no bar to trust estate, when, 170 
 
 not applicable to guardlam's account, when, 171, 173 
 
 LODISLANA, 
 
 in&nt executors in, rule in respect to, , 134 
 
 regulations respecting apprentices in; 150 
 
 statute of limitations as to infants in,' : , . 167 
 
 marital xights in, : 790-793 
 
 community property in, rules in respect to,. 790, 793 
 
 gifts between husband and wife, in, when valid, 790, 791 
 
 legal mortgage to wife.ia, rules.in respect to, 791 
 
 wife in, may contract debts, when,. 791 793 
 
 . . may, hold separate and paraphernal property, when, 791, 793 
 
 ' ' M. 
 
 MAINE, 
 
 will of , infants in, when valid, , 40 
 
 Infant executor in, rule in respect to,. , - 134 
 
 marriage of infants in, rule in respect to, 136, 137 
 
 regulations in respect to apprentices in, 148 
 
 120. 
 
954 ALPHABETICAL INDEX. 
 
 MAINE — CoNTrcroED. page. 
 
 . infanta in, may be employed in factories, ■when, ' 150 
 
 statute of limitations in respect to infants in, 164 
 
 ' liability of husband, for wife's antenuptial debts in, 337 
 
 . . deeds to busband {ind wife in, effect of, — 503 
 
 wife's real estate in, bow conveyed, 508 
 
 marital rights in, 673-678 
 
 , wife in, may bold and control property in, when, 673, 674 
 
 may make contracts, and. sue and be sued, when, 674 
 
 treated as /(5»i6-«ofe, wben, 675, 676 
 
 may convey lands to ber busband, when, 676, 677 
 
 may carry on business, wben, 677 
 
 MATNTENAJ^CE, 
 
 of infants, from their own property, when, 288-295 
 
 jurisdiction of courts in respect to...... , 288-293 
 
 of infants, from legacies, .when,,., .....,..,., 290-293 
 
 principle on wliich allowed,.,.... 292-295 
 
 inquiry, when made in respect to, , . i 292, 293 
 
 out of what fiind to be allowed, 293, 294 
 
 Vide WrPB. 
 
 MAEITAL EIGHTS, 
 
 in New York, rules in respect to, . ; 635-673 
 
 in Maine, do do 673-679 
 
 in-New Hampshire, do do 679-685 
 
 in Vermont, ■ do do ; 685-693 
 
 in Massachusetts, do do 693-705 
 
 in Rhode Island, do do 705-710 
 
 in Connp.cticut, . , do do ;.... 710-712 
 
 in New J.ersey, . , . do. do 712-716 
 
 in .Pennsylvania, do do^ '..716-730 
 
 in Delaware, do . do ; 730-731 
 
 in Maryland, . do do 731-734 
 
 inObio, do do i 734-736 
 
 in Michigan, .... do do 736,737 
 
 . in Indiana, do do 737-741 
 
 . in Illinois,. . . do. ... do » 741_744 
 
 in Wisconsin, .. do do 744-749 
 
 in Minnesota, do . do 749-751 
 
 in Iowa, , do ' do 751-753 
 
 in Missouri, . do do 753-755 
 
 in Kansas, do do 755, 756 
 
 in Nevada, do do 756, 757 
 
 in Nebraska, do do 757 
 
 inOregon, do do 757,758 
 
 in California, do do 758-765 
 
 in Virginia and "West Virginia, rules in respect to, ; 765-767 
 
 in Kentucky, rules in respect tOj 767-780 
 
 in Tennessee, do do 780-782 
 
 in North Carolina, do do .i... . 783, 783 
 
in Georgia, 
 
 do 
 
 in Florida, 
 
 do 
 
 in Alabama, 
 
 do 
 
 in Mississippi, 
 
 do 
 
 in Loaisiana, 
 
 do 
 
 in Arkansas, 
 
 do 
 
 in Texas, 
 
 dp 
 
 ALPHABETICAL INDEX. 955 
 
 MARITAL EIGHTS— CONTnronD. pj^oj,_ 
 
 in South Carolina, rules in respect to, . ,'. 783, 784 
 
 do 784,785 
 
 do 785,786 
 
 do 786-788 
 
 do 788-790 
 
 do 790-792 
 
 do 792-794 
 
 do , 794r-803 
 
 MARBIAQE, 
 
 contract of by infant, when voidable; 65, 56, 126, 130 
 
 age of consent requisite for, 56, 125-128, 130 
 
 contract of by infant, when void 136, 130 
 
 consent of parents or guardians to, when necessary, 126-138, 131 
 
 without consent of parents, effect of, 138-130 
 
 forbidden to be solemnized, when, 138, 129 
 
 law of domicUe, in respect to, 130 
 
 canon and civil law, in respect to, ; . . , . 130, 131 
 
 of ward of court, when a contempt, 138 
 
 of female ward, terminates guardianship, when, 151, 153, 357 
 
 effect of on the parties to,. 813 
 
 operates as a gift to husband of wife's personal property, when, 319, 361, 363 
 
 365, 873, 389, 421 
 
 mutual disabilities incident to, 320-831 
 
 evidenceo^ ........< 334, 865, 866 
 
 vests wife's chattels real in husband,' how, 368, 870 
 
 effect of upon wife's real estate, 421, 423 
 
 a good consideration for contract, when, 454, 461, 466 
 
 an indissoluble contract, when, i 468 
 
 effect of on wife's property, in New York, 650, 651 
 
 nature of, and its importance, ., 804-811, 836 
 
 regarded as a civil contract, when, 804-812, 817, 866 
 
 peculiarities of the contract of,. 806, 808-811 
 
 is an institution or state, 806, 807, 809-811 
 
 objects and purposes of, 807, 811, 833 
 
 how constituted and completed, 813-836, 861 
 
 solenmization of, when necessary, 813-817, 819-831, 833, 834, 866 
 
 consent of parties to, rules in respect to, 818, 820-835 
 
 who may solemnize, 826, 860 
 
 who Qiay contract, 827 
 
 impediments to, 837-845, 863 
 
 parties to, must be willing to contract, 845, 846 
 
 duress, avoids contract of, when, 846-849 
 
 fraud, avoids contract of, when, 849-859 
 
 need not be solemnized, when, • t 859, 860 
 
 iiregulor, only voidable, when, 861, 863 
 
 void and voidable,, what is, ; 863-864 
 
 canonical impediments to, effect of, 863 
 
 civil impediments to, effect of, , 863 
 
956 ALPBABETICAL INDEX. 
 
 MAEEIAGE— CONTETOBD. "-agb. 
 
 decree nullifying voidable, effect of, 866, 867 
 
 Fide DiTOKCB.. 
 
 . MARRIAGE SHTTLEMBNTS, 
 
 by infants, rule in respect to, 133-138, 460, 463 
 
 intention of parties to, Tule in respect to, • • 458-460 
 
 may be disaffirmed by infant; when, ™" 
 
 cannot be rescinded after marriage. When, ; 460, 463 
 
 parol, when binding, ..-.•. .-..-.. ; ...:.. 461 
 
 when strict performance of will be decreed, 464 
 
 to be registered, when, .■. ^"•'• 
 
 •supported in equity, when, • • 461, 463 
 
 will be corrected in equitj, when,.. 463-465 
 
 defeated by divorce, when, • 823, 933 
 
 MARYLAND, '. 
 
 rights of infants in,..- ^^ 
 
 infant executor in........ • ••• ^^ 
 
 age of consent to marriage in,, • • • • 128 
 
 gnardiaA for infant in, ...•...^., 135, 3oj 
 
 regulations in respect to apprentices in, 150 
 
 statute of limitations astoinfantfl, in,.. » ^66, 167 
 
 wife's real estate in, how conveyed,. 510, 731-734 
 
 marital ri'ghts*in, 731-734 
 
 wife in, may hold separate, estate, when, ■ 731-734 
 
 curtesy .and dower in,, 731—734 
 
 wife in, may.insure husband's life, when, 734 
 
 liable for rent and pu cpven?mts, when, 732 
 
 wife's distributive share in, goes to husband, when, 733 
 
 contract in, whw void, '''•^3 
 
 separate eptate in, ho:vir charged; 733 
 
 MASSACHUSETTS, - • 
 
 will of infautsjn, ruleinrespectto, 40 
 
 infant executor in, rule in respect to; 134, 133 
 
 marriage of infants in, law in respect to......... 136, 138, 139 
 
 guardianship of infants in, rule in respect to, 138, 255 
 
 regulations in respect to apprentices in, 149 
 
 employment of minors in factories in, rule in respect to, 151 
 
 statute of limitations in respect to infants in, 163-165 
 
 custody of minor children in, 379, 380 
 
 sale of infant's real estate in, law In respectto, 308 
 
 husband liable for wife's -antenuptial debts in, when, 337, 338 
 
 deeds to husband and wife, effect of, 500, 501 
 
 wife's real estate in, how conveyed, 507, 508, 693, 695-698, 703 
 
 dower in, barredby jointure, when; 564 
 
 marital rights in, ....>...,> 693-709 
 
 witein, may hold separateestate and do business in, when, 693, 694, 698, 703 
 
 contracts of wife in, who bound by, ; . 694, 702-705 
 
 wife in, may sue and be sued, how, 694 
 
 make will, when, 694 
 
ALPMABETICAL IJWEX. 957 
 
 MASSACHUSETTS— CoNTrNraiD. p^oj, 
 
 curtesy in, rule in respect to, 695 70O 
 
 fdfe in, ma^ do business, ■when, , 696 
 
 husband and wife cannot contract together in, ■when, 698 
 
 ■wife dying intestate in, how her property is disposed of, 700 
 
 marriage of parties to mortgage in, effect of, .,.. 703 
 
 promissory note of ■wife in, when binding, 703-705 
 
 separate estate of ■wife in, liable for her debts, when, 705 
 
 MICHIGAN, 
 
 age of consent to marriage in, 127 
 
 testamentary guardians in, 138 
 
 regulations respecting apprentices iu, 149 
 
 statute of limitations as to infantain, 168 
 
 marital rights in, 736, 737 
 
 wife in, may act as feme^ole, when, 786, 787 
 
 dealings between husband and wife in, when valid, 736, 737 
 
 MINNESOTA, 
 
 age of consent to marriage in, ..... , 127 
 
 statute of limitations in respect to infants in,.. . ; 169 
 
 testimony of husband and ■wife in, rule in respect to, 837 
 
 marital rights in , 749-751 
 
 wife in, may hold and control property in, when, 749 
 
 ■wife's property in, how Conveyed, 749, 750 
 
 curtesy in, rule in respect to, 749 
 
 transactions between husband and ■wife in, when upheld, 750 
 
 suits in &vor of wife in, how prosecuted, 750 
 
 the homestead in, law in respect to, 750, 751 
 
 MISSISSIPPI, 
 
 ■wiU by infants in, rale iu respect to, 40 
 
 infant executors in, rul6 in respect to....... 124 
 
 age of consent to marriage in, ; 138 
 
 statute of limitations as to infants in, 167 
 
 testimony of husband and ■wife in, rale in respect to, 837 
 
 husband liable for ■wife's a&tentiptial debts in, when, 338 
 
 ■wife's real estate in, how conveyed, 511 
 
 marital rights in, 788-790 
 
 wife in, may hold separate estate, when, 788, 789 
 
 ■wife's separate estate in, when liable for necessaries, 790 
 
 paraphernal properly in, rule in respect to, 790 
 
 MISSOURI, 
 
 ■will of infants in, rule in respect to, 40 
 
 infant executors in, rule in respect to, 134 
 
 marriage of infants in, rule in respect to, 137, 138 
 
 regulations respecting apprentices in,. 149 
 
 statute of limitations as to infants in, , . 168 
 
 husband liable for wife's antenuptial debts in, when, 388 
 
 marital rights in, 753-755 
 
 wife in, may act as feme-sole, when, 753, 754 
 
 wife's property in, how conveyed, 753-755 
 
958 ALPHABETICAL INDEX. 
 
 MISSOURI— CoNTuniED. tage. 
 
 ■wife in, may make will, when, 754 
 
 . .wife's. separate. estate in,.how charged, ' 754 
 
 wife in, how to sue and be sued, 754, 755 
 
 .paraphemal.property in, rule in respect to, 755 
 
 MORTGAGE, 
 
 of infants, when voidable, 55 
 
 foreclosure of, against infants, rule in respect to, 315-323 
 
 from husband to wife, when valid, 493 
 
 . widow may redeem, from, to save dower, when, 541, 545, 735, 743 
 
 bars dower, when, 555, 558, 559, 563 
 
 . effect of. marjiageof parties to, 650, 651, 703 
 
 executed by wife, when binding, 676, 737 
 
 N. 
 
 NEBRASKA, 
 
 termination of infancy in, , 35 
 
 infant may be executor in, when, 134 
 
 age of consent to marry in, 128 
 
 statute of limitations, respecting infants in, 169 
 
 custody of infants in, rule in respect to, 381 
 
 testimony of husband and wife in, rule in respect to, 387 
 
 marital rights in 757 
 
 wife in, may hold and control property, when, 757 
 
 how to sue and be sued, 757 
 
 wife's property in, how conveyed, 757 
 
 NECESSARIES, . 
 
 infants liable for, when, 57, 99-106, 116, 131, 175 
 
 contracts for, rule in respect to, , 99-107 
 
 how question of, determined, 100-113, 116, 357, 358 
 
 what are, .......;.. 105,112-117, 120, 356-358 
 
 when parents of minors are liable for, 106-113 
 
 ' question of, how tried, 117-120, 213 
 
 for wife, who liable for, 339-359 
 
 husband's assent to, how proved 340-348 
 
 credit for, to whom must be given, 343, 343, 358 
 
 action for, how brought, 344, 345 
 
 in Pennsylvania and Texas, 344, 345, 722, 723 
 
 husband not liable for, after divorce, when, 934, 925 
 
 NEGLIGENCE, 
 
 infants not liable for, when , 176, 177, 185 
 
 Vide Liability. 
 
 NEGLECT, 
 
 cause for divorce, when; :: 891 
 
 NEVADA, 
 
 husband liable for wife's antenuptial debts in, when, 338 
 
 marital rights in, 756, 757 
 
 wife in, may hold and control property, when, 756 
 
 husband's rights in, 756 
 
ALPSABETIOAL INDEX. 959 
 
 NEVADA— CoKTnnjBD. p^aj,_ 
 
 ,. ouiteay and dower in, abolished, .,.;...i 756 
 
 wife in, may be Bole trader, when, , 757 
 
 wife in, how to sue andhe sued, ,, 757 
 
 NEW HAMPSHIRE, 
 
 will of infante in, law in respect to, .; 40 
 
 regulations in respect to apprentices in, ......... ..i 149 
 
 ■ minor children in factories in, regulations in respect to, 150 
 
 statute of limitations in respect to infants in, ..: 164 
 
 husband liable for wife's antenuptial debts in, when, 838 
 
 w^e's real estate in, how conveyed, ..< 508 
 
 marital rights in, i. 679-685 
 
 married women may hold and control property in, when, 679 
 
 wife in, may sue and be suedj when, 679, 683 
 
 may make will, when, ;., 680 
 
 contracts of wife in, when binding, 680-683 
 
 Wife's eamingsin, belong to husband, when, 683 
 
 land in, how conveyed, 683 
 
 property in-, descent of, ; 683 
 
 homestead in, law in respect to, 68?i 
 
 divorce in, history of, and when granted,... 878 879 
 
 NEW JERSET, 
 
 infant executors in, fulis in respect, to, 134 
 
 age of consent to marriage in, 137 
 
 testamentary guardians in, law in respect to, 139 
 
 regulations respecting apprentices and factory children in, 149, 151 
 
 statute of limitations as to infants in, 166 
 
 general guardians in, rules in respect to, 255 
 
 sale of infant's real estate in, law In respect to, 298, 299 
 
 deeds to husband and wife in; effect of,. .....:..... 501 
 
 wife's real estate in, how conveyed, ;.... 509, 713, 714 
 
 marital Tights in, '712-716 
 
 wife's property in, free from husband's debts, when, 718, 713 
 
 wife in,has action for personal wrong, when........ 713 
 
 may have her own earnings, when,' 714 
 
 may act as a/e«i«-«ofe, when,.. ...715 
 
 how to sue and be sued, 715, 716 
 
 wifb's separate estate in, how charged, ....,....;.. 716 
 
 NEWTORK, 
 
 infancy in, rule in respect to, 36, 38 
 
 husband liable for wife's antenuptial debts in, when, , . 115, 116, 337 
 
 age of consent to marriage in, what is, 136 
 
 law in respect to marriage settlements in, 135 
 
 ^ guardianship of infants in, ... . 188, 139, 147, 348, 250, 353, 255, 356, 360 
 
 regulations in respect to apprentices in, 145 
 
 statute of limitations as toinfants in,;. ...;;:..... '..'. 164-166, 170 
 
 suits against infants in, rules in respect to, 193, 196, 200, 304 
 
 foreclosure of mortgages against infants in, rule in respect to, 330-333 
 
 in&nts in ventre sa m&re in,.their rights, 338-380, 233 
 
960 ALPSABETICAL INDEX. 
 
 NEW TOEK— CONTOTOED. pagb. 
 
 who are bastards in, ^.. • 233 
 
 custody of infants in, rules in respect to,>.... 278, 379 
 
 maintenance of infants in,. ....:.. 289 
 
 real estate of infants in, how sold, , .. 296-298, 300-809 
 
 testimony of husband and wife in, law in respect to,. 335, 336 
 
 deeds to husbaiid and wife in, effect of, 499, 500 
 
 wife's real estate in, how conveyed, 505-507 
 
 dower in, how barred, • 564, 567 
 
 admeasured and recovered, ■ 590-593 
 
 marital rights in, 635-673 
 
 wife in, may acquire and hold property, when,.,, 635, 636, 639-647, 651, 652 
 
 655-657,665-668,670,673 
 
 may carry on trade, when, 636, 652, 654, 660, 666, 667, 673 
 
 tenancy by the curtesy in, ,.., 638, 648, 649, 657, 658 
 
 conveyances between husband and wife in, 638, 689 
 
 wife in, may make a will, when, 646, 647 
 
 may sue and be sued, how, .... (547. 6M, 6 55-65 8, 660-664, 667-669 
 
 separate estate of wife in, how charged, 653, 654, 658, 659 
 
 assent of husband to wife's deed, when necessary, 655 
 
 gifts between husband and wife in, when vaM, 656, 657 
 
 husband may recover wife's debt in, when, 663, 664 
 
 judgments against wife in, form and effect of, 664, 665 
 
 wife in, may insure her husband's life, when, 671, 673 
 
 divorce in, history of,.'. , 875-877 
 
 Vide DivoKCB. 
 NOETH CAEOLINA, 
 
 will of infants in, rule in respect to, 40 
 
 infant executors in, rule in respect to, , 134 
 
 age of consent to marriage in, 128 
 
 regulations respecting apprentices in, ; . . 149 
 
 statute of limitations as to infants in, 167 
 
 children in, how bastardized, 233 
 
 custody of infants in, rule in respect to, 280 
 
 sale of infant's real estate in, rule in respect to, 308 
 
 deedstohusbandandwifein, effect of,.. 501, 783 
 
 wife's real estate in, how conveyed, 511 
 
 marital rights in, 783, 783 
 
 wife's property in, how held, 782, 783 
 
 marriage settlements in, when valid, : 783 
 
 deed of wife in, when valid, ; 783 
 
 divorce in, history of and when granted, 879, 880 
 
 o. 
 
 OFFICE, 
 
 infants may hold, when, 87, 88, 40, 41, 131, 123 
 
 OHIO, 
 
 infancy in, rule in respect to, 35 
 
 age of consent to marriage in, 137 
 
ALPBABETlGAh INDEX, 961 
 
 OHIO— CONTINITKD. y^gj._ 
 
 testamentary guardians in,. . , I39 
 
 regulations respecting apprentices in, 149 
 
 statute pf limitations as to infants in 168 
 
 general guardians of infants in, , 255 
 
 sale of real estate by infants in, . . ., 299 
 
 testimony of husband and wife in, rule in respect to, 337, 338 
 
 deeds to husband and wife in, effect of, 502 
 
 wife's real estate in, how conveyed, 613 
 
 marital rights in, 734-736 
 
 wife in, may transact business and hold property, when, 734, 735 
 
 deed from husband to wife in, when void, 735 
 
 wife's conveyance ii), when void, 735 
 
 wife may redeem from mortgage in, when, 735, 736 
 
 wife in, may make will, when 736 
 
 how to sue and be sued, ••■••■ • 736 
 
 OREGON, 
 
 will of infants in, rule in respect to, 40 
 
 infant executors in, rule in respect to, 134 
 
 age of consent to marriage in, '. 138 
 
 testamentary guardians in, 138 
 
 regulations respecting apprentices in, . . . , ;.....:. 149 
 
 statute of limitations as to infants in, 169 
 
 testimony of husband and wife in, rule in respect to, 1 . 338 
 
 marital rights in, 757, 758 
 
 wife's separate estate in, rule in respect to, 757, 758 , 
 
 wife in, may make wiU, when 757, 758 * 
 
 how to sue and be sued, 758 
 
 estopped by her deed, when, 758 
 
 ■wife's propei-ty in, how conveyed, 758 
 
 P. 
 
 PAEAPHERNALU, 
 
 what is, and belongs absolutely to wife, when, 423, 424 
 
 right to, when qualified,.. ^^ 
 
 subject to husband's debts, when, •• 4?*. 435 
 
 vrife's right to, when barred, ^5 
 
 PARENTS, 
 
 liable to support their children, when, 101-107, 279 
 
 for ohUd's necessaries, when, 106-113 
 
 liability of to support their children, how enforced, 107-113 
 
 may bind out their children, when, 14^, 148 
 
 duties and rights of, in respect to their chUdren, 243-247 
 
 guardians of their children, when,-. 245, 246, 348 
 
 custody of their minor children, which entitled to, 373-287 
 
 PAROL DEMURRER, 
 
 origin of and rules respecting it, ' 214-323 
 
 121 
 
962 ALPHABETICAL INDEX. 
 
 PENNSYLVANIA, tage. 
 
 testamentary capacity of infants in 40 
 
 infant executor in, rule in respect to, 134 
 
 marriage of infants in, rule in respect to, 127 
 
 testamentary guardians in, 139 
 
 regulations respecting apprentices and factory children in, 149-152 
 
 statute of limitations as to infants in, 166 
 
 actions against infants in, how defended, 204 
 
 children in, how bastardized, 234 
 
 general guardians of infants in, 255 
 
 sale of infanta' real estate in, 297 
 
 husband liable for wife's antenuptial debts in, when, 338 
 
 deeds to husband and wife in, effect of, 502, 503 
 
 wife's lands in, how conveyed, 509, 510 
 
 dower in, what and how barred, 565 
 
 marital rights in, 716-730 
 
 wife in, may hold and enjoy property, when, 716, 717, 738, 730 
 
 wife's property in, how transferred, 716, 717, 719, 736 
 
 property claimed by wife in, when presumed to be her husband's, . . 718, 729 
 
 wife's contract in, not binding, when, 719, 720, 726-728 
 
 wife in, may make a will, when, 730, 731 
 
 actions for wife in, how prosecuted, 731-733 
 
 wife in, may \>efemB-sol6 trader, when, 733, 734, 738 
 
 curtesy and dower in, 733, 730 
 
 wife in, has action when, and how to sue and be sued, 724, 725 
 
 may insure life of her hugband, and loan him money, when; 725 
 
 may give bond and receipt legacy, when, 735 
 
 may be member of corporation, when, 725 
 
 husband's vested right in, not affected, when 726 
 
 wife in, not estopped, when, 726, 737 
 
 settlement on wife in, when valid, 737, 730 
 
 wife in, may be her husband's creditor, when, 737 
 
 judgment from husband to wife in, when valid 738 
 
 PERSONAL INDIGNITY, 
 
 cause for divorce, when, 893^ 893 
 
 what is, 893 
 
 PERSONAL PROPERTY, 
 
 of wife, belongs to husband, when, 861-865, 873, 874r-393 
 
 may be owned and controlled by vrife, when, 636, 689, 340, 673-705 
 
 Vide Maeitai, Rights. 
 
 PIN-MONEY, 
 
 what is, and the wife's right to it, 425-437 
 
 wife entitled to arrears of, when, 426 427 
 
 wife's right to, when barred, 427 
 
 POLYGAMY, 
 
 in Utah, how viewed, 831 
 
 condemned, when, 848-845 
 
ALFSABETICAL INDEX. 963 
 
 POSTHUMOUS CHILDREN, paoe. 
 
 yfhsn. considered in ease and rights of, 233-331 
 
 may be executor, and take legacy, wlien, 334-326 
 
 must be bom alive, and rule in respect to, 224, 331 
 
 effect of will in respect to, 333 
 
 illegitimate, rights of, 235 
 
 POST-NUPTIAL CONTEACTS, 
 
 sustained in equity, when, 467-483 
 
 bars wife's dower, when, 470, 571, 573, 580 
 
 declared void, when, 470 
 
 when valid as against creditors, 471, 478-481, 483, 496 
 
 for maintenance, when determined, 475, 476 
 
 Income of, belongs to wife, when, 494 
 
 PEEGNANCT, 
 
 cause for divorce, when, 893 
 
 PRESUMPTIONS, 
 
 in favor of married women, when, 647 
 
 against claim of married women, when,. 718, 739, 739 
 
 how overcome in case of community property, 761, 798, 799 
 
 PEOCHEIN AMI, 
 
 liability of, 207-309 
 
 Vide GUABDIANS. 
 
 PROMISSORY NOTE, 
 
 of infant, when voidable, 53, 53, 103, 104 
 
 putative father of bastard, when binding, 140 
 
 law of domicile governs, when, 311 
 
 to wife, continues her prbperty. When, 374, 376 
 
 taken during coverture, belongs to wife, when, 377 
 
 given to wife, how sued, 383 
 
 from husband to wife, when valid, 493 
 
 marriage of parties to, effect of, ... , 651 
 
 by wife, when void, 675, 703-705, 733, 762 
 
 PEUSSLA., 
 
 divorce in, when allowed, i 872, 873 
 
 PUBLIC LANDS, 
 
 no dower in, when, 551-553 
 
 Q. 
 
 QUAKERS, 
 
 marriage of, how celebriated, 821 
 
 QUARANTINE, 
 
 of widow, what is 581, 583 
 
 E. 
 
 REAL ESTATE. Vide Iiwaht— Wifb. 
 
964 ALPEABETICAL INDEX. 
 
 RBCEIMINATION, PAau. 
 
 maybe a bar to diTrorce.Tvlten,. 905-910 
 
 liow proved in divorce case;...'.. .....i ^07, 908 
 
 may be charged for divorce, when, .....; 910, 911 
 
 BELEASE, 
 
 6t dower/effect of, . > 658 
 
 Vide Dower. 
 
 RHODE ISLAND, 
 
 will of infant in, rule in respect to, 40 
 
 infant executor in, rule in respect to, .• •• •• — 134 
 
 testamentary guardian in, rtde in respect to, 138 
 
 regulations respecting apprentices in, 149 
 
 statute of limitations as to infants in, ; 165 
 
 custody of infants in, rule in respect to, 280 
 
 wife's real estate in, how conveyed, 507 
 
 mariial rights in, 706-710 
 
 wife in, may do business and acquire property, when, . . .■ 706, 707 
 
 wife's separate estate in, how charged,. 707, 708 
 
 personal estate in, how sold, 707 
 
 wife in, may make a will when,... '. 707, 708 
 
 curtesy in,. . . 708 
 
 wife's property in, ]}pw it descends,,. .,...,.. , 708, 709 
 
 wife not liable on her covenants in, when, 709 
 
 •mis in, may take property from her husband,' when, 709 
 
 not viewed as b, feme-sole, when, 710 
 
 separate estate iu, how created,.... ...'.'. 710 
 
 ROMANS, 
 
 divorce among, when allowed, 870, 871 
 
 •s.- ■• 
 
 SCOTLAND,, 
 
 divorce in, when allowed, < 875 
 
 SECURITY, 
 
 of infant, when voidable, 54 
 
 a gift to wife when,..,.., 877, 883 
 
 by wife, when binding, 484 
 
 SEPARATE ESTATE, 
 
 of wife, how acquired and enjoyed, 428-453, 488-495 
 
 what words will create, 428-433 
 
 may be secured without trustee, when, 431, 434, 441 
 
 how secured before marriage, 431, 433 
 
 to "Mfe' during coverture, 431, 432, 437 
 
 may be qualified by the grant, when, 433, 443, 446 
 
 disposed of by wife, and how disposed of, . . . 433-441, 448, 450, 451 
 
 507, 511, 614 
 
 how disposed of on death of wife,. 438 
 
 separate use, construed as, when, 441 
 
 how charged, 443-448, 474, 475 
 
alpbabetioal index. 965 
 
 SEPARATE ESTATE— Continued. paob. 
 
 use of, may be given to husband, when, i . . '. 450 
 
 may be recovered from husband's creditor, When, 450 
 
 difference between, and " separate use," ; . . 481, 483 
 
 ection for, by wife, when, 498 
 
 Vide Mabital Bights. 
 
 SEPARA.TE USE, 
 
 what is, 481, 482 
 
 how created, , 483 
 
 wlieii BU9taiAe.d, 493, 493 
 
 SHELLEY'S CASE, 
 
 the rule in, 458, 459 
 
 SLAVERY, 
 
 an impediment to majniage,' when, v 843, 843 
 
 SOUTH CAEoLiNA, 
 
 wUl of infants in, rule in rbspect to, 40 
 
 action by infant to recover land in,. '. 68 
 
 statute of limitations as to infants in, 167, 170 
 
 wife's real estate in, how conveyed, 511 
 
 marital rights in, . . . 783, 784 
 
 feme-anert in, may be sole trader, when, '.'... 783 
 
 cannot make will, when, 783 
 
 gift from husband to wife in, when valid, '. . . 783 
 
 wife in, may release her estate, when, 784 
 
 deed to husband and wife' in, effect of, 784 
 
 divorce in, rule in respect to, 877, 878 
 
 STATUTES, 
 
 in respect to husband and wife, 635-803 
 
 Vide Mabital Eights. 
 
 SUBEENDEE, 
 
 by infants, voidable, when, '. 56 
 
 how avoided, 68 
 
 when infants bound by, ••■••. ^^^ 
 
 cannot be made to infants, when, 335 
 
 T. 
 
 TEACHEES, 
 
 of schools; their powers and duties in respect to their pupils, 247 
 
 TENANT. Vide Cuktest— Dowbk. 
 
 TENNESSEE, 
 
 infants cannot hold office in, 38 
 
 custody of infants ih) rtilein respect to....... 139, 380 
 
 statute of liinitatioris as to infants in, 168 
 
 deed to husband and wife in, effect of, 503, 781 
 
 wife's real estate in, how conveyed, 511, 780, 781 
 
 marital rights in, • • • • 'i'80-783 
 
 • marriage settlements iB< when-valid, 780 
 
966 ALPHABETICAL INDEX. 
 
 TENNESSEE— CoNTEsruED. page. 
 
 wife inay make will in, when, 780 
 
 real estate of wife in, exempt from husband's dehts, when, 780-783 
 
 hOiOsehold goods of wife in, when exempt from execution, 780, 781 
 
 hushand's right in wife's personal property in, , 781 
 
 suits by and against wife in, rule in respect to, 783 
 
 separate estate of wife in, how charged, 783 
 
 TEXAS, 
 
 termination of infancy in, < 35 
 
 age of consent to marriage in, 188 
 
 guardian of infants in, 138 
 
 statute of Umitations as to infants in, ....... ,. , 168 
 
 suits by infants in, how prosecuted, 198 
 
 custody of infants, rule in respect to; 380, 381 
 
 curtesy and dower abolished in, 533 
 
 marital rights in, 794r-803 
 
 antenuptial contracts in, rules in respect to, 794 
 
 separate property in, rules in respect to, 794, 795, 798 
 
 community property in, rules in respect to, 794r-799, 801, 803 
 
 wife's separate estate in, how charged, 795, 799, 800 
 
 homestead in, wife forfeits her claim to, when, 796 
 
 husband and wife in, distinct persons, when, 796, 797 
 
 lomestead in, rules in respect to, 796, 797 
 
 gifts from husband to wife in, when valid, 797, 800 
 
 actions concerning wife's property in, how prosecuted, 797 
 
 common law governs in respect to marital rights in, when, 798 
 
 presumptions as to comjnunity property in, .■ 798, 799 
 
 TRUSTEE, 
 
 infants may be, when, 156, 158 
 
 infant, acts of, when binding, 157, 158 
 
 may convey land, when, 158 
 
 laches of, no bar, when, 170, 171 
 
 of infants, powers and duties, 393 
 
 husband is, when,... 431, 433, 449, 455, 494 
 
 named in post-nuptial contracts, effect of, 471, 473 
 
 of wife, powers and duties of, '. 670, 671, 694, 701, 736, 786 
 
 may be removed, when, 710 
 
 when may be appointed, 731, 731, 756 
 
 when necessary, 761, 764 
 
 TRUSTS, 
 
 in favor of infants, how established, 158 
 
 execution of by infant, infant liable, when, 158 
 
 in favor of wife, rules in respect to, 438-452 
 
 estates in, wten dower allowed in, 548, 549, 653 
 
 V. 
 
 VAGRANCY, 
 
 , of, hufibafld, ■yvhen ft caupe fpr divorce, 898 
 
ALPHABETICAL INDEX. 967 
 
 VERMONT, Pioj,. 
 
 infancy in, rule in respect to, 34 
 
 infant executors in, rule in respect to, 134 
 
 age of consent to marriage in, 126, 127 
 
 guardianship of infants in, 138, 255 
 
 regulations respecting apprentices in, 149 
 
 statute of limitations as to infants in 164 
 
 bastards in, how legitimatized, 233 
 
 custody of infants in, rules in respect to, 279 
 
 deeds to husband and wife in, effect of, 503 
 
 wife's real estate in, how conveyed, 508, 686 
 
 dower in, how barred, 563 
 
 marital rights in 685-693 
 
 wife in, may hold and convey property, when, 685, 686, 691 
 
 may make will, when, 685 
 
 may insure husband's life, when, 686 
 
 homestead in, rules in respect to, 686, 691, 692 
 
 husband in, may be divested of his marital rights, when, 687 
 
 wife's separate estate in, rules in respect to, 687, 689, 690 
 
 products of wife's land belong to husband, when, 688, 689 
 
 wife's choses in action in, rule in respect to, 690, 691 
 
 VIRGINIA, 
 
 infants' contract for necessaries in, when void, 102 
 
 age of consent to marriage in, 128 
 
 law as to marriage settlements in, 136 
 
 regulations respecting apprentices in, 149 
 
 statute of limitations as to infants in, 167 
 
 guardian ad litem for infant in, 204 
 
 judgments against infants in, rule in respect to 223 
 
 children in, how bastardized, i. .. 233 
 
 custody and maintenance of infants in, 280 
 
 sale of infants' real estate in, ; 299 
 
 wife's real estate in, how conveyed, 510, 511, 766, 767 
 
 dower in, how barred, 565 
 
 marital rights in, 765-767 
 
 grant from husband to wife in, when upheld, 767 
 
 VOIDABLE ACT, 
 
 in respect to infants, what is, 48, 51-58, 125-130, 136, 144, 862, 863 
 
 criterion to determine what is, 49 
 
 may be ratified, when, 51, 80-99, 104, 130 
 
 who may avoid, 57, 59-64, 136 
 
 when must be avoided 64r^9, 125, 134-136 
 
 how disaffirmed, 70-75 
 
 consequence of disaffirmance of, 75-80, 95 
 
 how confirmed, 80-9.6, 126 
 
 confirmation of, to be in writing, when, 96 
 
 contract of marriage is, when, . .• 862, 863 
 
968 AZPMABETICAL INDEX. 
 
 VOID ACT, PAGE. 
 
 in lespect to infants, what, is, 41, 43, 47, 48, 136, 130, 863, 863 
 
 distinguiflhed from voidable, how, 43-46, 48 
 
 contract of marriage is, when, 136, 130, 863, 863 
 
 WARD, 
 
 of court, who is, , , . . 138 
 
 marriage of, rtile in respect to, , 138 
 
 in chivalry;, rule in respect to, 338, 239 
 
 in socage, rules in respect to, 339, 240 
 
 care of courts over, 268, 269 
 
 release by, when valid^ , . . 370 
 
 liability of, for maintenance, when, 271 
 
 Fid« QUAEDIAN — ^Maekiage, 
 
 WASTE, 
 
 of dower lamj, what is, ..... , 628 -631 
 
 WEST VIRGINIA, 
 
 real estate of infants ia, how and for what sold, .' 397 
 
 marital rights in, 765, 766 
 
 WIDOW, 
 
 writ of investigation against, when allowed and proceedings upon it, 337, 238 
 
 • civU.law.in respect to marriage of,. 23.5 
 
 guardian of her minor, children, when, ; 248 
 
 her estate in dower, 515-635 
 
 her dower, when barred,., 553-581 
 
 has her election in respect to dower, when, 566-568, 572-574 
 
 estopped from.claiming dower, when, 580 
 
 can enter dower estate, when, 581, 582, 584 
 
 her quarantine, rule in respect to, 581, 582, 586 
 
 her dower, how and when assigned, 581-605, 609-613 
 
 nature of the estate, 586, 587, 615-617 
 
 may have writ, for dower, when,. 589 590 
 
 may recover damages with dower, when, 606-609, 626, 627 
 
 her dpwer in equity, proceedings to recover, 618-628 
 
 her right to emblements, when, 631-633 
 
 WIFE, , 
 
 disbability of, 313-331, 422 
 
 merged in husband, when, 312 313 
 
 acts of, when void, 313-315, 317* 330 
 
 relations to her husband, 314 
 
 acts of, when vaUd, 315, 316, 318, 320, 330, 331 
 
 fraud of, efifect of, on her contracts, '_ 315 gj^ 
 
 her lands, how conveyed, 31g 504-514 
 
 estoppel applies to, when, 3I7 
 
 incapacity of, reason for, 3ig 30A 
 
 enjoys political rights, when, gig gon 
 
 cannot testify for or against husband, when, 320-835 
 
ALPBABETICAL INDEX. 969 
 
 WIFE— CONTINTJED. p^g^ 
 
 may be a witness against husband, when, 321-335 
 
 declarations of, not evidence against husband, when, 325, 498 
 
 may be a witness for or against husband, when, 335-338 
 
 presumed to be under influence of husband, when, 830, 452, 513 
 
 transactions with husband, rule in respect to, 830, 443, 490-495 
 
 cannot be sued alone, when, 333i.334 
 
 property of, liable for her debts, when, 335-388 
 
 oecessaries for, rules in respect to, 339-349 
 
 may bind her husband, when, 340-348 
 
 when husband not liable for necessaries for, 349-356 
 
 not liable for crime, when, .- 359, 360 
 
 personal property of, belongs to husband, when, 361-365, 374r-393, 496 
 
 earnings of, belong to husband, when, 363, 486, 487, 497 
 
 cannot be executor or administrator, when, , 365 
 
 personal property of, descends to husband, when, 766, 767, 788 
 
 her chattels real, her husband's interest in, 367-369, 371, 423 
 
 what property survives to her, 371, 372, 875-380, 884, 387, 888, 432 
 
 of, belongs to her absolutely, 373 
 
 may be the beneficiary of a promise, when, 378 
 
 must be joined with husband in an action, when, 888-387 
 
 has right to a settlement in equity, when, 889-393 
 
 raa,j restrain her husband, when, 392, 893 
 
 her lands, rules la respect to, 393, 897, 421 
 
 treated as a feme-sale, when, 421, 422, 440-443, -447, 451, 484, 485, 488 
 
 dower of, rules in respect to, 423-435 
 
 her paraphernalia and pin-money, '. 433-437 
 
 her separate estate, rules in respect to, 428-452 
 
 may charge her separate estate, when, 448-448, 450 
 
 cannot have personal decree against, when, 445 
 
 liable to an action, when, 448 
 
 barred by breach of trust, when, 451 
 
 antenuptial contracts of, rules in respect to, 453-466 
 
 post-nuptial contracts of, rules in respect to, 467-483 
 
 her separate maintenance, rules in respect to, 473-476 
 
 entitled to her personal earnings, when, 476, 484r490, 495, 496 
 
 freed from her husband, when, 478 
 
 may acquire property, when, 483, 483 
 
 may carry on business, when, 483-489, 495, 496 
 
 plea of coverture, when good, ; 489 
 
 may be creditor of her husband, when, 494 
 
 deeds of, when valid, 497, 498 
 
 may redeem lands from mortgage, when, 498 
 
 grants to with husband jointly, effect of, 498-504 
 
 may bind herself by contract, when, 505 
 
 dower of, rules in respect to, 515-635 
 
 when barred, 553-581 
 
 how and when assigned, 581-605, 609-613 
 
 her dower in equity, proceedings to recover, 618-638 
 
 dower lands of, rules in respect to, 633-633 
 
 122 
 
970 ALPHABETICAL INDEX. 
 
 WIFE— CoNTnruED. pAois. 
 
 may hold property and do business ia New Tork, when, 635-673 
 
 Y\d& MAKiTAii Bights. 
 after divorce, rights of, 914, 921-935 
 
 WILL, 
 
 by infants, rule in respect to, 40, 47, 133 
 
 revoked, when, S30 
 
 of wife, when void,. 441 
 
 provision in, bars dower, when, ,. 565-574 
 
 of wife, when vfllid, 637, 646, 647, 685, 694, 695, 707, 708, 730, 
 
 736, 741, 754, 760, 774, 775. 780, 786, 787 
 
 WISCONSIN, 
 
 marriage of infants in, 137 
 
 testamentary guardians in, 133 
 
 ' regulations respecting apprentices in, 149 
 
 statute of limitations as to infants in, 169 
 
 deed to husband and wife in, efTect of, 503 
 
 marital rights in, .' 7'44r-749 
 
 wife's property in, rules in respect to, 744-747 
 
 wife in, may make contracts, when, 744 
 
 wife's separate estate in, how charged, 744-747 
 
 earnings in, belong to husband, wh6n, 747 
 
 wife in, may do business when, 747, 748 
 
 husband in, bound by wife's contracts, when, , 748 
 
 curtesy in, rule in respect to, , 749 
 
 WITNESS, 
 
 husband and wife, rule in respect to, 330-828, 933 
 
 Fide Maeital Eights. 
 
 WOMAN. 
 
 how regarded by heathen and Christian nations, in contrast, 311