rence, and in his name as well as her own (s). But in consideration of this incapacity, the law on the other hand excepts her, in respect of all rights and causes of action accruing to her during the coverture, from those limitations of time within which other persons are bound to assert their legal claims; and allows her for that purpose a certain period after the coverture is determined. There are also with respect to the disabilities above enumerated several exceptions which require attention. First, as the husband is bound to maintain her, her contracts made for the sole purpose of supplying herself with necessaries suitable to her station in life, will in general be binding upon him, though not upon herself (t). For if they be living together, his consent to such contracts will ordinarily be presumed; though the presumption is capable of being repelled by special circumstances, as by notice to the particular tradesman not to trust her (u). And not only while they cohabit, but even in the event of a separation by consent, he is in general liable on her contracts for supplies of this description, if no provision be otherwise made for her; for the tradesman is then considered, (even though he have notice not to trust her,) as standing in her place, and as enforcing indirectly her right to be maintained (x). But on the other hand, the husband incurs no such liability if she depart from him against his will, and without sufficient excuse arising from his ill-treatment (y);

(s) Eubanke v. Owen, 5 Ad. & El. 298; Ayling v. Whicher, 6 Ad. & El. 259.

(t) As to a man's liability on the contracts of a woman passing as his wife, though not legally such, see Ryan v. Sams, 12 Q. B. 460.

(u) See Manby v. Scott, cited 5 Bing. 559; Etherington v. Parrot, Lord Raym. 1006; Montague v. Benedict, 3 Barn. & Cress. 635; Seaton v. Benedict, 5 Bing. 28; Reid v. Teakle, 13 C. B. 627; Re

neaux v. Teakle, 8 Exch. 680.

(x) See Bolton v. Prentice, Str. 1214; Etherington v. Parrot, ubi sup.; Montague v. Benedict, ubi sup.; Hunt v. De Blaquiere, 5 Bing. 550; Mainwaring v. Leslie, 2 C. & P.505; Edwards v. Towells, 5 Man. & G. 624; Read v. Legard, 20 L. J. (Ex.) 309; Brown v. Ackroyd, 5 Ell. & Bl. 819.

(y) Child v. Hardyman, Stra. 875; Horwood v. Heffer, 3 Taunt. 421; Houliston v. Smith, 3 Bing. 127.

or be dismissed by him for adultery; or, during the separation, commit adultery (z); or if she have a separate allowance secured to her, and regularly paid (a). A wife may also contract as a feme sole, so as to bind herself, and may sue or be sued, or do any other act as a feme sole, in case her husband be transported upon an attainder for felony (b); and by the custom of London, where a woman carries on trade within that city on her own sole account,—the husband having no concern with it,--she is competent to bind herself by simple contract, in any matter relating to such trade (c).

While a woman's coverture thus subjects her to various disabilities, it entitles her on the other hand to certain protections or privileges. For, first, she cannot be sued in a civil action, without making her husband a joint defendant (d); and this applies not only to causes of action arising against her after the marriage, but also to her debts and other liabilities contracted before that period. For he is considered as responsible for her in respect of all demands of a civil nature, having by the marriage adopted her and her circumstances together (e). And even when

(z) Govier v. Hancock, 6 T. R. 603; Symes v. Goodfellow, 2 Bing. N. C. 532; 5 T. R. 547.

(a) Hunt v. De Blaquiere, ubi sup.; Mizen v. Pick, 3 Mee. & W. 481; Grindell v. Godmond, 5 Ad. & El. 755; 1 Barn. & Ad. 803; Holder v. Cope, 2 Car. & Kir. 437; Reeve v. Conyngham, ibid. 444. By 20 & 21 Vict. c. 85, s. 26, if, upon a judicial separation, alimony has been decreed and not duly paid by the husband, he is liable for necessaries supplied to her.

(b) Co. Litt. 133 a; Marshall v. Rutton, 8 T. R. 545; Marsh v. Hutchinson, 2 Bos. & Pul. 226; Ex parte Franks, 7 Bing. 762. As to the case of her husband being an alien enemy, see Barden v. Kever

berg, 2 Mee. & W. 65; De Wahl v. Braune, 1 H. & N. 178; Clementson v. Blessig, 11 Exch. 135, in notis.

(c) Pulling's Customs of London, 179; Lavie v. Philips, 3 Burr. 1776; Beard v. Webb, 2 B. & P. 93, 101.

(d) 1 Bl. Com. 443. If judgment be obtained against husband and wife and she be taken in execution, the courts in their discretion will order her to be discharged, provided it appears that she has no separate property. See Chalk v. Deacon, 6 Moore, 128; Edwards v. Martyn, 17 Q. B. 693.

(e) 1 Bl. Com. 443; Tracey v. M'Arlton, 7 Dowl. 532. See Dodgson v. Bell, 20 L. J. (Ex.) 137.

she is sued in autre droit, she is entitled to the same shelter of being joined with her husband, though her acts in that capacity are (as already noticed) free from his control (ƒ).

There are also cases in which the coverture protects her from criminal prosecution, and that absolutely, so that she cannot even be indicted jointly with her husband. For a feme covert is not liable to be prosecuted at all for some felonies committed by her in the presence of her husband (g), the law supposing her to act in such case under his coercion (h). But the exemption extends not to treason, murder, or manslaughter (i); nor to any crime whatever committed by her in the absence of her husband (k), or even in his presence, if the evidence shows that she was acting voluntarily, and was the principal instrument (1). And where she is liable as a criminal, she may be indicted as such (in general), without making her husband a joint defendant, contrary to the rule which obtains (as already stated) in a civil action.

Having thus examined the effects which result at common law from the conjugal relation, it may be desirable to advert to the manner in which they are modified by the principles of equity.

Though the husband and wife cannot at common law contract with each other, or grant to each other directly, yet even direct gifts between husband and wife are often considered as effectual in the courts of equity (m); and

(f) Mounson v. Bourn, Cro. Car.

519.

(g) 1 Hale, P. C. 45, 516; Hawk. b. 1, c. 1, s. 9; 1 Bl. Com. 444; vide post, bk. vi. c. II. As to acquittal of wife on the ground of coercion, see also R. v. Price, 8 Car. & P. 19; Reg. v. Cruse, ib. 541; The Queen v. Brooks, 22 L. J. (M. C.) 121.

(h) 1 Bl. Com. 444.

(i) 1 Hale, P. C. 47.

(k) Russ. & Ry. 27. As to the case of her obtaining money under the fraudulent pretence of being a feme sole, see Liverpool Adelphi Loan Association v. Fairhurst, 9 Exch. 422.

(1) 1 Hale, P. C. 516.

(m) Lucas v. Lucas, 1 Atk. 271; Slanning v. Style, 3 P. Wms. 334.

these courts will also take cognizance of any trust created in favour of the wife, whether by the husband or a stranger; and, in administering that jurisdiction, will take views of the rights of a feme covert materially different in some respects from those of the common law. For though by that law her personal property in general vests absolutely in her husband, and he takes a joint interest also in her real estate, so that she can have no separate property, yet in contemplation of equity, she has a separate and independent estate in whatever property or interest is secured to her through the medium of a trustee,-provided the intention of the grantor be distinctly declared, that she should have it to her sole and separate use (n). And as it is a rule in equity that a trust shall never fail for want of a trustee, it follows that where the intention to give her a separate benefit is clear, she will be held in equity to take a separate estate, even though the donor should have omitted to name any trustee, and the estate consequently vests at common law in the husband; for to effectuate such intended trust, the court will, if necessary, consider the husband himself as her trustee (o). Where the wife indeed becomes entitled during the coverture to any equitable property not settled. to her separate use, the courts of equity follow the principle of the common law, and allow the husband to claim it as his own; but even in that case they will not assist his claim, except upon condition of his making an adequate provision for her out of the fund, unless she already enjoys a competent settlement, or freely consents to its being paid. over to him without condition (p). It is also to be observed, that in respect of any trust property settled to the separate use of the wife, the courts of equity allow her to sue her husband, or be sued by him; though it is a rule, as we have seen, of the common law, founded on the iden

(n) Fonb. Tr. Eq. 94.

(0) Bennet v. Davis, 2 P. Wms. 316.

(p) Fonb. Tr. Eq. 95; Co. Litt.

by Butler, 351 a, n.; Creed v. Perry, 14 Sim. 592; Hall v. Hugonin, ibid. 595.

tity of person, that they are incapable of standing towards each other in the relation of plaintiff and defendant in the courts where that law is administered (g). Indeed, it is incidental, of course, to the practice of all courts which recognize any separate interest in the wife as against the husband, to permit them to take towards each other the position of litigant parties.

A court of equity will also allow the estate of a married woman, settled on her to her separate use, to be conveyed or charged by her at her pleasure, though by the rule of the common law she is generally incapable, as we have seen, of making any conveyance or disposition of her property (r). Gifts of income, however, to the separate use of a married woman, are often accompanied with a proviso against her making any assignment of her interest, by way of anticipation of the growing payments during the coverture; and such a proviso, (notwithstanding the general rule of law invalidating all restrictions on alienation,) will be effectual ($).

Provision being often made for married women by way of marriage settlement, and it being also of frequent occurrence between husband and wife to enter into an arrangement for living separately,-it will be desirable, before we conclude the present head, to take some notice of both these subjects. And

1. With respect to marriage settlements.

Where a marriage is contemplated, it is common for the intended husband, if possessed of considerable property, to make a settlement out of it, for the benefit of the intended wife. This provision for her is very usually made by securing to her, through the medium of trustees, a rent-charge on his landed estate, during their joint lives (to be paid into her proper hands and to her separate use),

(q) Fonb. Tr. Eq. 94; sup. p.

271.

(r) Bac. Ab. Bar. & F. 507.

(s) See Sockett v. Wray, 4 Bro.

C. C. 483; Woodmeston v. Walker, 2 Russ. & M. 197; Brown v. Pocock, ibid. 210; Harnett v. Macdougall, 8 Beav. 187.