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cases, between the wife of a foreigner and the wife of a native, and it held, that if the foreigner, though a resident abroad at the time of the suit brought, had ever resided in England, his wife was disabled to sue. The distinctions in the English law, subject to this qualification,
have been assumed as the law in this country.a *157 *This is the extent of the authorities on this
subject; and it is easy to see that there might be most distressing cases under them, for though the husband be not an alien, yet if he deserts his wife, and resides abroad permanently, the necessity that the wife should be competent to obtain credit, and acquire and recover property, and act as a feme sole, exists in full force.b It is probable, that the distinction between husbands who are aliens, and who are not aliens, cannot long be maintained in practice, because there is no solid foundation in principle for the distinction.c
If the wife be divorced a mensa et thoro, it has been suggested in some of the books, that she can sue and be
Gregory v. Paul, 15 Mass. Rep. 31. Robinson v. Reynolds, 1 Aiken's Rep. 174, supra, p. 155, n. c.
b If a feme covert be driven by cruelty from a husband's house, and sho retires to another state, and maintains herself by her labour, without any provision for her made by her husband who abandons her, she may sue as a feme sole, though her husband be a citizen. Gregory v. Paul, 15 Mass. Rep. 31. Abbot v. Bayley, 6 Pick. Rep. 89.
In Bean v. Morgan, 4 M'Cord's Rep. 148, it was held, that if the husband departs from the state, with intent to reside abroad, and without the intention of returning, his wife becomes competent to contract, and to sue and be sued as a feme sole. This was breaking down the distinction men. tioned in the text. So in Gregory v. Pierce, 4 Metcalf's Rep. 478, it was held, that if the husband deserts his wife absolutely and completely, by a continued absence from the state and with an intent to renounce de facto the marital relation, the wife may sue and be sued as a semo sole. This was considered to be an application of an old rule of the common law and equivalent to an abjuration of the realm.
sued as a feme sole.a But in Lewis v. Lee,b it was adjudged, in the English court of K. B., upon demurrer, that though the wife be divorced a mensa et thoro, and lived separate and apart from her husband, with an ample allowance as and for her separate maintenance, she should not be sued as a feme sole. The question is not settled in the jurisprudence of this country. In Massachusetts, it has been held, after a full consideration of the subject, that a wife divorced a mensa et thoro, might sue and be sued as a feme sole, for property *ac- *158 quired, or debts contracted by her subsequently to the divorce. This is the more reasonable doctrine, and it seems to be indispensable that the wife should have a capacity to act for herself, and the means to protect herself, while she is withdrawn, by a judicial decree, from the dominion and protection of her husband. The court of Massachusetts has intentionally barred any inference that the same consequence would follow if the husband was imprisoned by law for a public offence or crime. But such a case might be equivalent to an abandonment of the wife, and ground for a divorce a mensa et thoro; and there are as much reason and necessity in that case as in any other, that the wife should be competent to contract, and to protect the earnings of her own industry.d
• Bacon, tit. Baron and Feme, M. Lord Loughborough, in 2 Vesey, jun. 145. In Stephens v. Tot, Moore's Rep. 665, it was intimated (il sembloit) that the wife, on a divorce a thoro et mensa, could sue without her husband, in like manner as she could sue if her husband was exiled.
b 3 Barnw. f. Cress. 291.
· Dean v. Richmond, 5 Pick. Rep. 461. Pierce v. Burnham, 4 Metcalf's Rep. 303, S. P.
The Massachusetts Revised Statutes, of 1835, authorize a divorce from the bond of matrimony if either party be sentenced to imprisonment in the state prison. Supra, p. 96. They likewise clothe the wife with power to act, in many respects as a feme sole, if her husband absents himself from the state, and abandons his wife, and makes no sufficient provision for her maintenance. She is, in such case, authorized to contract, and to sue and be sued as a feme sole, so long as her husband remains absent. The same power and capacity are given to a married woman who comes into the state
In Hatchett v. Baddeley, 16 Geo. III., a the C. B. held that a feme covert eloping from her husband, and running in debt, could not be sued alone, for that no act of the wife could make her liable to be sued alone. If she could be sued, she could sue, acquire property, and release actions, and this would overturn first principles. In no case, said one of the judges, can a feme covert be sued alone, except in the known excepted cases of abjuration or exile, where the husband is considered as dead, and the woman as a widow. It was afterwards held by the same court, in Lean v. Schutz, 18 Geo. III.,b that if the wife had even a separate maintenance, and lived apart from her husband, she could not be sued alone. There was no instance in the books, said the court, of an action being sustained against the wife, when the husband was living at home, and under no civil disability. A wife may acquire a separate character by the civil death of her husband, but she cannot acquire it by a voluntary
*But a few years afterwards, the court of K. B.
under the influence of Lord Mansfield, in the celebrated case of Corbett v. Poelnitz,c introduced a new principle into the English law, respecting the relation of husband and wife; but a principle that was familiar to the Roman law, and to the municipal law of most of the nations of Europe. The court in that case, held that a feme covert living apart from her husband, by a deed of separation, mutually executed, and having a large and competent maintenance settled upon her, beyond the con
without her husband, he having never lived with her in the state. If the husband afterwards comes into the state, he assumes bis marital rights. Massachusetts Revised Statutes, part 2. tit. 7, ch. 77.
a 2 Wm. Blacks. Rep. 1079. Gilchrist v. Brown, 4 Term. Rep. 766. S. P.
6 5 Wm. Blacks. Rep. 1195.
• 1 Term. Rep. 5. Ringsted v. Lady Lanesborough, and Barwell v. Brooks, 3 Doug. Rep. 197, 371, were cases that preceded the one of Corbett v. Poelnitz, and declared the same doctrine.
trol of her husband, might contract, and sue, and be sued at law as a feme sole. Lord Mansfield put the action, upon the ground of the wife having an estate settled upon her to her separate use, and acquiring credit, and assuming the character and competency of a feme sole. The ancient law had no idea of a separate maintenance; and when that was introduced, the change of customs and manners required, as indispensable to justice, the extension of the exceptions to the old rule of law, which disabled a married woman from contracting. The reason of the rule ceased when the wife was allowed to possess separate property, and was disabled from charging her husband.
This decision of the K. B. was in 1785, and it gave rise to great scrutiny and criticism. It was considered as a deep and dangerous innovation upon the ancient law.
In Compton v. Collinson, a Lord Loughborough held, notwithstanding that decision, that it was an unsettled point, whether an action could be maintained against a married woman, separated from her husband by consent, and enjoying a separate maintenance. Again in Ellah v. Leigh, the K. B., in 1794, indirectly assailed the decision of Corbett v. Poelnitz, and did not agree that the court could change the law, so as to adapt it to the fashion of the times. They declared, however, without touching the authority of the decision, *that *160 upon a voluntary separation of husband and wife, without a permanent fund for her separate use, she could not be sued alone as a feme sole. Afterwards, in Clayton V. Adams, the court of K. B. went a step further towards overturning the authority of Corbett v. Poelnitz, and held, that though the wife lived apart from her husband, and carried on a separate trade, she was not suable ; for if she could be sued as a feme sole, she might be taken in
• 1 H. Blacks. Rep. 350.
5 Term. Rep. 679. • 6 Term. Rep. 604.
execution, which would operate as a divorce between husband and wife. At last in Marshall v. Rutton, a the K. B. decided, in 1800, after a very solemn argument, before all the judges, that a feme covert could not contract, and be sued, as a feme sole, even though she be living apart from her husband, with his consent, and have a separate maintenance secured to her by deed. The court said, that the husband and wife, being but one person in law, were unable to contract with each other, and that such a contract, with the consequences attached to it, of giving the wife a capacity to contract, and to sue and be sued, would contravene the general policy of the law in settling the relations of domestic life, and would introduce all the confusion and inconvenience, which must necessarily result from so anomalous and mixed a character as such a married woman would be. The only way in which such a separation can be safe and effectual, is by having recourse to trustees, in whom the property, of which it is intended the wife shall have the disposition, may vest, uncontrolled by the rights of the husband, and it would fall within the province of a court of equity, to recognize and enforce such a trust.b At law, a woman cannot be sued as a feme sole, while the relation of marriage subsists, and she and her husband are living under the same government. Lord Eldon afterwards, in the case of Lord St. John
v. Lady St. John,d speaking of these decisions *161 at law, expressed himself very decidedly against
. 8 Term. Rep. 545.
b 2 Story's Equity, 652. Clancy on the rights of Husband and Wife, 240. Bettle v. Wilson, 14 Ohio Rep. 257. In this last case it was adjudged that articles of separation between husband and wife through the medium of a trustee, for her support, were valid.
c It has been adjudged in Benedict v. Montgomery, 7 Watts f. Serg. 238, that if husband and wife join in a sale of her real estate, and he takes the proceeds to his own use, there is no implied fund raised in favour of the wife.
a 11 Vesey, 539, 540.