tinue unaltered, since the husband cannot disagree to her interest in them, and as he has only a qualified right to possess them, by reducing them into possession during her life; he is unable to maintain an action for such property without making his wife a party; (g) but for all personal estate which accrues to the wife, or to the husband and wife jointly during marriage, and for all covenants made or entered into with them during that period, the husband may, at law, commence proceedings in his own name; because the right of action having accrued after marriage, the husband may disagree as to his 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 name of both of them: (h) and in such case, it has been held, that if the husband recover a judgment for a debt due to the wife, and die before execution, his personal *representative will be entitled to the benefit of it, and not [ *120 ] the wife. (i) The distinction above pointed out does not, however, as has been stated, appear to exist in Courts of Equity, where it seems necessary that in all cases where the property sought to be recovered is the property of the wife, she should be a party co-plaintiff with the husband, whether the right to the property accrued before or after marriage. Thus in Clarke v. Lord Angier, (k) where a legacy was given to a feme whilst she was covert, and the husband without her exhibited a bill for it, to which the defendant demurred, on the ground that the wife ought to have been joined in the suit, the demurrer was allowed; (1) and the Court has even gone the length of granting an injunction to stay proceedings in the Ecclesiastical Court, in a suit instituted there by a husband alone, to obtain a legacy bequeathed to his wife. (m)

The ground upon which Courts of Equity require the wife to be joined as co-plaintiff with her husband in suits relating to her own property is, the parental care which such Courts exercise over those individuals who are not in a situation to take care of their own rights; and as it is presumed that a father would not marry his daughter without insisting upon some settlement upon her, so those Courts, standing in loco parentis, will not suffer a husband to take a wife's portion until he has agreed to make a reasonable provision for her, (n) or till it has given the wife an opportunity of making her election, whether the property shall go to her husband or shall be made the subject of a settlement upon her and her children. *Upon this principle it is, that where [ *121 ] a sum of money is declared by the decree or order of the Court to belong to a married woman, the Court will not suffer it to be paid over to the husband till the wife has been examined apart from him, to ascertain whether such payment is to be made by her consent, or whether she is willing to have a settlement of the money made upon her and her children. (0) It is therefore

(g) 1 Roper on Husband and Wife, 211, and the cases there cited notis.

(h) Ibid. 210.

(i) Oglander v. Batson, 1 Vern. 396; Garforth v. Bradley, 2 Ves. 677. (k) 2 Freeman, 160; 1 Cha. Ca. 61; Nels. 78.

(1) Vide etiam Blount v. Bestland, 5 Ves. 515.

(m) Anon. 1 Atk. 491; Meales v. Meales, 5 Ves. 517, note. From what was said by the Master of the Rolls in Carr v. Taylor, 10 Ves. 580, some doubt appears to have existed in his Honor's mind as to the application of the rule which requires a wife to be joined in all suits instituted by her husband for the recovery of her property, to cases where the property sought to be recovered is merely a legal chose in action, accrued to the wife after marriage, and for which the husband might, at law, maintain a suit alone, but is obliged to resort to a Court of Equity for the purpose of removing some legal impediments, or of obtaining the benefit of an account. With great deference, however, to so high an authority, it is submitted, that such a distinction does not exist, since the right of a wife to a settlement, which is the foundation of the rule which requires the wife to be joined, applies to all cases where the wife's estate is concerned, whether legal or equitable.

(n) 2 Atk. 420.

(0) Elliott v. Cordell, 5 Mad. 156.

the constant practice of the Court, where the object of the suit or of an interlocutory application is money or stock belonging to a married woman, if the wife be resident in town, for the judge, to whom the application is made, to take her examination in Court apart from her husband at the time when the order for payment is pronounced. (p) If the woman be resident in the country, a commission will be directed to commissioners for the purpose of taking her examination, (q) and the order for this commission may be either inserted in the decree, or made the subject of a distinct order upon motion or petition. (r) Under such commission the married woman is to be examined by the commissioners, or such number of them as are mentioned in the commission, separate and apart from her husband; and her examination must be taken down in writing and signed by her and the commissioners, who then certify to the Court the execution by them of the commission. Upon this being done, the commission, with the certificate and examination, is returned to the Court by the commissioners, and in the subsequent application to the Court to have the money paid to the husband agreeably to the wife's consent, the signatures of the commissioners to the certificate and examination, and of the wife to the latter, must be verified by affidavit. (8)

Where the wife is resident abroad, a similar commission to take her consent will be directed to persons resident there. (t) In Minet v. Hyde (u) the order was, that she should appear before some of the plaintiffs and a magistrate of Breda, to be privately examined as to her consent, [ *122 ] such examination to be in writing in the French or German language, and to be signed by her, and attested by notaries public, whose certificate thereof was also to be in writing either in the French or German language. It was also ordered that such signing and certificate should be verified by the affidavit of some credible witnesses either in the German or French language, before a proper magistrate of Leyden aforesaid; and that the examination, certificate, and affidavit, should be translated from the language in which they should be taken into the English language, by T. A. & R. R. of London, notaries public, or either of them; and that such of them as should translate the same should be sworn to the truth of such translation. (x)

It seems that where a wife's consent has been already given upon her examination before another competent tribunal, she need not be again examined in a Court of Equity; thus, in Campbell v. French, (y) Lord Loughborough did not think it necessary to issue a commission to take the examination of a married woman residing in America, as she appeared to have been examined under a commission issued by the Government of Virginia, and had consented to a power of attorney to receive the legacy which had been executed by her husband. And so it has been held, that where a married woman is entitled to a share of money arising from the sale or mortgage of an estate which has been mortgaged or sold, and in order to effect such sale or mortgage she has joined in levying a fine of her share, and for that purpose has undergone the usual

(p) For a decree for payment to husband on consent of wife given in Court, vide Seton on Decrees, 255. For an order for ditto, vide Hand's Practice, 213.

(9) 1 Newl. 383.

(r) Grant's Practice, 367. For a precedent of such an order, vide Seton, 257; and for a return by commissioners to ditto, vide ib. 258, and Tasburgh's case, 1 V. & B. 507. (8) 1 Newl. 384; Tasburgh's case, 1 V. & B. 507.

(1) Parsons v. Dunne, 2 Ves. 60. Bourdillon v. Adair, 3 Bro. 237.

(u) 2 Bro. C. C. 663.

(x) Ibid. Ed. Belt. p. 662, N. 1, vide etiam Parsons v. Dunne, Belt's Suppl. to Ves.

276.

(y) 3 Ves. 321.

examination in the court where such fine has been levied, she will be barred, by the fine, of her equity for a settlement. (z)

It may be observed here, that all applications for payment to the husband of money belonging to the wife, with the consent of the wife, must be supported by an affidavit that there is no settlement on the marriage, or that it does not affect the fund. (a) The Court also will not take the consent of [#123 ] the wife till the amount of the fund is ascertained; (c) nor will it direct the payment where only part is ascertained, if any part remains unascertained. (d)

Formerly, where the sum exceeded 100%., the consent of the wife could not be dispensed with, (e) but now, where the sum is under 2001., or produces less than 10l. a-year, consent will be dispensed with; (f) and in Foden v. Finney, (g) where the wife's money in Court did not amount to 2007., it was ordered to be paid to the husband, though the wife had been deserted by him, and opposed the application.

It may be mentioned in this place, that where a sum of stock was bequeathed to a married woman, whose husband was of unsound mind, though no commission of lunacy had been issued against him, the Court, on a bill filed on behalf of the husband and wife for payment of the legacy, ordered the fund to be transferred into Court to the joint account of the plaintiffs, and afterwards, in consideration of their poverty, made an order upon petition, that the dividends to become due, amounting to 207. per annum, should be paid to the wife on her sole receipt, or to her solicitor, he undertaking to pay them over to the wife. (h)

By an order of the 16th Feb. 1816, (i) it is directed that where any sum is ordered to be paid, or is reported to be due to an unmarried woman, in case of her marriage before payment, where the sum does not amount to 2007., or to the sum of 107. in annual payments, upon affidavit of the husband and wife stating such marriage, and that no settlement or agreement for a settlement has been made affecting or relating to such sum, the Accountant General may make his draft for such money, payable either to the wife or to the husband. But in such a case where the sum in Court amounts to 2001. and upwards, the money cannot be paid out without an application to the Court, which also must be supported by an affidavit from the party that the money has not been the sub

[#124 ]ject of settlement. (k) This restriction, however, applies only to

applications for the capital, for where the interest only of a fund is ordered to be paid to a single woman who afterwards marries, the Accountant General may, even where the amount exceeds 107. per annum, continue to make the payments to the husband; but in such case also it is necessary, that besides the usual affidavit of the marriage and identity of the party, there should be an affidavit that there was no settlement or agreement for a settlement. (7)

The wife, as we have seen, may, upon her examination in Court or before commissioners, waive her right to a settlement altogether, and give the property to her husband. In Ex parte Higham, (m) however, Lord Hardwicke appears to have considered himself entitled to object to the whole fund being paid over to the husband, who was in trade, even though the wife consented.

(z) May v. Roper, 4 Sim. 360.

(c) Sperling v. Rochfort, 8 Ves. 178;

v. Baxter, 6 Mad. 32.

(a) Minet v. Hyde, 2 Bro. C. C. 603. Woollands v. Crowcher, 12 Ves. 178; Jernegan

(d) Godber v. Laurie, 10 Pri. 152.
(f) Elworthy v. Wickstead, 1 J. & W.
(g) 4 Russ. 428.

(i) Beame's Ord. 464.

Clayton v. Gresham, 10 Ves. 289.

69.

(e) Bourdillon v. Adair, 3 Bro. 237.

(h) Steed v. Calley, 2 M. & K. 52.
(k) Hough v. Ryley, 2 Cox, 157.
(m) 2 Ves. 579.

But in Willats v. Cay (n) where the wife had appeared in Court, and being examined desired that the whole money might be paid to her husband, the Master of the Rolls, although the parties had married without the consent of the wife's relations, and the husband appeared to be insolvent, refused to refer it to the Master to consider a scheme for securing a provision for the wife, observing, that it was never done unless circumstances of fraud or of compulsion on the part of the husband appeared; and that a wife might as well dispose of her personal estate, over which she has an absolute control, as of real estate, which she might do by joining in a fine with her husband. (0)

But, although a wife may consent to waive her equity for a settlement out of her immediate personal property, yet where property has been settled to her use for life, and after her death to such persons as she should appoint by will, and in default of appointment to her executors, &c., she cannot, in her lifetime consent that the property should be given to her husband. (p)

*The rule of the Court appears to be, that the wife can only [ *125 ] consent to depart with that interest which is the creature of a Court of Equity; viz: the right which she has in a Court of Equity to claim a provision by way of settlement on herself and children, out of the property which at law the husband could take possession of in her right. This equity arises upon the husband's legal right to present possession; and the principle has no application to a remainder or reversion, which can only be passed to the husband when it falls into possession. Upon this ground a petition, which had for its object the payment to the husband of a sum of money to which the wife was entitled in reversion after the death of her mother, was refused by Sir J. Leach, V. C., (q) his Honor observing, that if a wife by her consent could pass a remainder or reversion in personal property to the husband, she would not only part with a future possible equity, but with her chance of possessing the whole property by surviving her husband. "A Court of Equity," his Honor observed, "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."

The same principle was acted upon by the Court in Richards v. Chambers, (r) and in Ritchie v. Broadbent. (s) In Howard v. Damiani, (t) however, a different order appears to have been made by Sir William Grant, M. R., but that was a mere order made by consent, and according to the opinion of Lord Lyndhurst in Honor v. Morton, (u) not to be relied upon. In Macarmick v. Buller, (v) however, Lord Kenyon, M. R., made an order, upon the consent of a married woman given in Court, for the payment of trust-money to her husband, which appears to be completely at variance with the rule laid down in the cases just cited. In that case, on the marriage of the plaintiff, a sum of 9,000l. had been vested in trustees upon trust to pay the interest to the husband for life, and after his death to the wife for life, and upon the death of the sur

vivor to pay the principal to such persons as such survivor should [ *126 ] direct; but the husband having occasion for the money, joined with the wife in

(n) 2 Atk. 67.

(0) Vide acc. Milner v. Colmer, 2 P. Wms. 642; Lanoy v. Athol, 2 Atk. 448; Oldham v. Hughes, 2 Atk. 452; Hearle v. Greenbank, 3 Atk. 709; Parsons v. Dunne, 2 Ves. 60; Anon. 2 Ves. 671; Minet v. Hyde, 2 Bro. C. C. 663; Dimmoch v. Atkinson, 3 Bro. 195; Ellis v. Atkinson, ib. 565; Hood v. Burlton, 4 Bro. C. C. 121.

(p) Socket v. Wray, 2 Atk. 6, n.

(r) 10 Ves. 580.

(4) Picard v. Roberts, 3 Mad. 384.

($) 2 Jac. & W. 456; Vide etiam Woollands v. Crowcher, 12 Ves. 175; ib. 458, n. (t) 2 Jac. & W. 258, n. (u) 3 Russell, 63.

1 Cox, 357.

executing a deed-poll, whereby they appointed the money immediately to the husband, and upon personal examination of the wife in Court, the trustees were directed to pay the money to the husband, and to deliver up the settlement to be cancelled. In a recent case, where a feme covert was tenant in tail in remainder after a subsisting life estate of money to be laid out in land, it was held by Sir J. Leach, M. R., that she could by an arrangement with the tenant for life, and on a private examination under the 7 Geo. 4, c. 45, consent to the payment of a portion of the money to the husband. (w) But that the Act, it is to be remarked, gives to the tenant in tail in remainder an immediate right to apply, in concurrence with the tenant for life, for the payment of the money out of Court, so that the order so made under the Act is not at variance with the rule above noticed, that the wife can only consent to depart with that which the husband, in her right, has an immediate right to reduce into possession.

Where property is settled to the separate use of a married woman, her examination in Court is not necessary in order to pass her interest to a purchaser. The principle upon which this rule is founded is that she is, as to that property, a feme sole, and as such has a disposing power over it; and it applies as much to reversionary property as to property in possession. (x) Upon the same principle, where a married woman to whom an annuity was bequeathed for her separate use, joined with her husband in assigning part of it for a valuable consideration, and she, the husband, and the purchaser, afterwards filed a bill against the executors of the testator under whom the annuity is claimed, a doubt having occurred whether in such a case a decree could be taken by consent; the Master of the Rolls was of opinion that it could, and directed the decree to be drawn up accordingly. (y)

But although where property has been settled to the separate [ *127 ] *use of a married woman, the Court will give effect to her alienation of such property, in the same manner that it gives effect to an alienation by a feme sole, the rule does not extend to transactions with her husband, which are looked upon by the Court with considerable jealousy, so much so, that it is very constantly the course where the trustees have obliged the party to come to the Court, not to establish a deed between the husband and wife disposing of the separate estate of the wife, without the actual presence of the wife.

Upon this principle the order in Gullan v. Trimbey (z) appears to have been made. In that case a sum of money had been bequeathed to a married woman, to be laid out by trustees in the purchase of an annuity for her life, to be settled to her separate use, but the testator's estate not being sufficient to pay the whole legacy, a smaller sum was apportioned to the legatee, and a petition was presented by the legatee and her husband, praying that the 'money might be paid to him, and an order to that effect was made, but not till the consent of the wife had been taken. It has not, however, been determined that a wife may not, in any case, dispose of her separate property to her husband, unless by consent in Court Several instances have occurred where wives, by acts in pais, have parted with separate property to their husbands. (a) It should be observed, however, that such gifts are never to be inferred without very clear evidence. (b)

It may be remarked here, that if the wife is the subject of a foreign State, by the law of which her husband would be entitled to receive the whole of her

(w) In re Silcock's Est. 3 Russ. 369.
(y) Stinson v. Ashley, 5 Russ. 4.
(a) Pawlet v. Delaval, 2 Ves. 669.

(x) Sturgis v. Corp, 13 Ves. 190.
(z) 2 Jac. & W. 457, n.

(b) Rich v. Cockell, 9 Ves. 369; Harvey v. Ashley, cited 2 Ves. 671; S. C. 3 Atk. 607; Harg. Co. Lit. 37 a. n.