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*149 case of Bolton v. Prentice, a which *arose in the
K. B. as late as 18 Geo. II., goes the length of establishing this reasonable doctrine. The wife took up necessaries on credit, after the husband had used her ill, and abandoned her, and forbidden the plaintiff from trusting her. But the K. B. held, that the husband had no right to make such a prohibition in such a case, and they distinguished the case from that of Manby v. Scott, because, in that, the wife was guilty of the first wrong; and they sustained the action of the assumpsit for the goods sold to the wife.
In a modern decision in the K. B.,b it was held, that if a man turned away his wife without justifiable cause, he was bound by her contracts for necessaries suitable to her degree and estate. If they live together, he is only bound by her contracts made with his assent, which may be presumed. If the wife goes beyond what is reasonable and prudent, the tradesman trusts the wife at his peril, and the husband is not bound but by his assent, either express or -reasonably implied. The doctrine of the supreme court of New-York is to the same effect.c
(3.) Liable for her torts.
The husband is liable for the torts and frauds of the wife committed during coverture. If committed in his company, or by his order, he alone is liable. If not, they are jointly liable, and the wife must be joined in the suit
considered the law to be, that if a man rendered his house unfit for a modest woman to continue in it, or if the wise had reasonable ground to apprehend personal violence, she was justified in quitting it, and the husband would be liable for necessaries furnished for her support. · Str. Rep. 1214.
Montague v. Benedict, 3 Barnw. g. Cress. 631. • M'Cutchen v. MÖGahay, 11 Johns. Rep. 281. The husband is not liable on a negotiable note given by the wise, even in a suit by the bona fille endorsee, though given for goods purchased by her to carry on her trade, unless it was given with his authority or approbation. Reakert F. Sanford, 5 Watts. . Serg. 164.
with her husband. Where the remedy for the tort is only damages by suit, or a fine, the husband is liable with the wife; but if the remedy be sought by imprisonment, on execution, the husband is alone liable to imprisonment.a The wife, during coverture, cannot be taken on a ca. sa., for her debt dum sola, or a tort dum sola, without her husband; and if he escapes, or is not taken, the court will not let her lie in prison alone.b If the tort or offence be punished criminally by imprisonment, *or other corporal punishment, the wife alone is to *150 be punished, unless there be evidence of coercion, from the fact, that the offence was committed in the presence, or by command of the husband. This indulgence is carried so far as to excuse the wife from punishment for theft committed in the presence, or by the command of her husband. But the coercion which is supposed to exist in that case is only a presumption of law, and, like other presumptions, may be repelled.
III. Wife's capacity at law to act as a feme sole : (1.) To purchase and sell land.
The disability of the wife to contract so as to bind herself, arises not from want of discretion, but because she has entered into an indissoluble connexion, by which she is placed under the power and protection of her husband, and because she has not the administration of property, and has given up to him all personal property in possession, and the right to receive all such as may be reduced into possession.d But this general rule is subject to certain exceptions, when the principle of the rule could not be applied, and when reason and justice dictate a departure from it.
In the first place, a wife may purchase an estate in fee
* 3 Blacks. Com. 414.
without her husband's consent, and the conveyance will be good, if the husband does not avoid it by some act declaring his dissent, and the wife, after her husband's death, may waive or disagree to the purchase.a But the conveyance of a feme covert, except by some matter of record, was absolutely void at law, and in England the wife used to pass her freehold estate by a fine, and this and a common recovery were the only ways in which she could, at common law, convey her real estate. She might, by a fine, and a declaration of the uses thereof, declare a use for her husband's benefit. So, if the husband and wife levied a fine, a declaration of the uses by the husband alone, would bind the wife and her heirs, unless she disagreed to the uses during the cov
erture.b As a general rule, the husband must be "151 a *party with the wife to her conveyance, but if
she levied a fine as a feme sole, without her husband, though it would be good as against her and her heirs,c the husband may avoid it during coverture, for the benefit of the wife as well as for himself.d Now the English law is changed as to the mode of conveyance of the wife, by the abolition of fines and recoveries, and the
· Litt, sec. 677. Co. Litt. 3. a. 356. b. 2 Blacks. Comm. 292.
• Beckwith's case, 2 Co. 57. Swanton v. Raven, 3 Atk. Rep. 105. In Durant v. Ritchie, 4 Mason's Rep. 45, the husband and wife conveyed to A. in fee, to the use of the grantors for their joint lives, and to the survivor in fee, and the uses were held to be well raised out of the seisin of A.
c Bro. Abr. tit. Fines, pl. 75. Perkins, sec. 20. Shep. T. by Preston,
d Preston on Abstracts of Title, vol. i. p. 336. By the Fine and Recovery Act of 3 & 4 W. IV. c. 74, the court of C. B. may, whenever the husband's concurrence cannot be procured from any cause whatever, authorize the wife to convey her lands by deed without his concurrence. This is analogous to the provision in the Civil Code of Louisiana, art, 127, taken from the Code Napoleon, art. 218, by which, in case the husband refuses to authorize his wife to sell her paraphernal property, she may apply to the judge of the place of her domicil for authority, and which he may grant after hearing the parties.
wife conveys by deed with her husband's concurrence.a The wife may, as an attorney to another, convey an estate in the same manner as her principal could, and she may execute a power simply collateral, and, in some cases, a power coupled with an interest, without the concurrence of her husband.b She may also transfer a trust estate, by lease and release, as a feme sole.c
The conveyance of land by femes covert, under the government of the colony of New York, was, in point of fact, by deed and not by fine, and upon the simple acknowledgment of the wife before a competent officer, without private examination. Such loose modes of conveyance were mentioned in the act of the 16th of February, 1771, and were confirmed; but it was declared, that in future no estate of a feme covert should pass by deed, without her previous private acknowledgment before the officer, apart from her husband, that she executed the deed freely, without any fear or compulsion of her husband. The deeds of femes covert, in the form used in
· By the English statute, of 3 and 4 William IV. ch. 74, abolishing fines and recoveries, married women are enabled, with the concurrence of their husbands, and in special cases without it, to dispose by deed, or relinquish any estate they may have, as effectually as they could do if sole, provided the deed of a married woman be acknowledged by her before a competent officer, on a previous examination, apart from her husband.
Sugden on Powers, 148. Co. Litt. 52. a. 112. a. • Barnaby v. Griffin, 3 Vesey, 266.
a It is worthy of notice, however, that in the act of the first legislature of New York, in 1683, under the Duke of York, and which was termed " the charter of liberties," it was provided, that no estate of a feme covert should be conveyed but by deed acknowledged by her in some court of record, and she being secretly examined, whether she did it freely, without threats or compulsion of her husband. In the old colony of Plymouth, it was enacted by law in 1646, that the acknowledgment of a sale of lands by the wife before a magistrate was sufficient. Plymouth Colony Laws, by Brigham, 1836, p. 86. In Massachusetts, under the province act of 9 William III., a wife, in conjunction with her husband, might convey her real estate, by deed of bargain and sale duly executed, acknowledged, and recorded, without being privately examined, whether she did it freely or not. Judge Towbridge said, such had been the practice in the province VOL. II.
other cases, accompanied by such an examination, and which is still required by statute, a have ever since been held sufficient to convey their estates, or any future contingent interest in real property, and fines and recoveries are now abolished by statute in New-York.b If the wife resides out of the state, she may unite with her husband
and convey all her right and interest, present and *152 contingent, equally *as if she were a feme sole,
and without any such special acknowledgment. Nor does a deed by the wife in execution of a power or trust, require a private examination.d
This substitute of a deed for a conveyance by fine, has prevailed throughout the United States, as the more simple, cheap, and convenient mode of conveyance.e
down to his time, and he held such conveyances, so authenticated, to bo valid. See his opinion in the American Jurist, No. 27. See, also, Fowler v. Shearer, 7 Mass. Rep. 14. 19–22. The Revised Statutes of Mussachusetts, of 1835, give a sanction to the joint deed of husband and wife ; but though the deed will pass her real estate, it will not bind her by any covenant or estoppel.
* N. Y. Revised Statutes, vol. i. p. 758. sec. 10.
• Ibid. vol. ii. p. 343. If, however, the party was an infant as well as a feme covert the disability arising from infancy remains, though she execute and acknowledge the deed in the form prescribed by the statute. Bool v. Mix, 17 Wendell's Rep. 119.
• New-York Revised Statutes. vol. i. p. 758. sec. 11.
a Platt, J., in Jaques v. Method. Epis. Church, 17 Johns. Rep. 590. Sturges v. Corp, 13 Vesey, 190. When the wife's property settled on her is the subject of a deed, equity looks upon her as a feme sole, and an incident to the ownership in her is her power of disposition without the concurrence of her husband. Powell v. Murray, 2 Edw. V. Ch. Rep. 636.
• Davoy v. Turner, 1 Dall. Rep. 11. Watson v. Bailey, 1 Binney's Rep. 470. Jackson v. Gilchrist, 15 Johns. Rep. 89. Fowler v. Shearer, 7 Mass. Rep. 14. Gordon v. Haywood, 2 N. H. Rep. 402. Thatcher v. Omans, Supplement to 3 Pick. Rep. 521. Lithgow v. Kavenaugh, 9 Mass. Rep. 172. Elmer's N. J. Dig. 83. Acts of North Carolina, 1715. 1750. The method of conveying lands by fine and common recovery was never in use in North Carolina, and the statutes of 1715 and 1750, required the wife's previous private examination before her conveyance by deed was binding. The law of the Island of Jamaica allows a married woman to convey by a simple conveyance with her separate acknowledgment.