Sayfadaki görseller
PDF
ePub

The

interest, which bill being dishonoured by the wife, a suit was instituted for payment of the debt, not only out of the money then due in the hands of her trustees, in respect of her separate maintenance, but also out of future accruing payments, and for an injunction to restrain the trustees from paying any more of the annuity to the wife. facts of the case being admitted by the answers, the only question was whether the wife could affect her separate estate by accepting a bill of exchange. Sir John Leach, V. C. decreed according to the prayer of the bill, and said that he had occasion to consider this doctrine in the case of Greatly v. Noble,(f) and that he then was of opinion that a feme covert, being incapable of contract, the court of chancery could not subject her separate property to general demands; but that as incident to the power of enjoyment of separate property, she had a power to appoint it, and that the court would consider a security executed by her as an appointment pro tanto of her separate estate. Lord Brougham, C. however said, that he could perceive no reason for drawing any such distinction as to the effect of any dealing whereby a general engagement only is raised, that is, where the wife becomes indebted without executing any written instrument, and intimated an opinion that the separate estate of a feme covert is liable in equity to her general engagements as well upon an implied undertaking as by a written obligation. "If (said his lordship) in respect of her separate estate, the wife is in equity taken as a feme sole, and can charge it by instruments absolutely void at law, can there be any reason for holding that her liability, or more properly her power of affecting the separate estate, shall only be exercised by a written instrument? Where a married woman, having separate estate and living apart from her husband, employed a solicitor in [ *663 ] various transactions, and promised by letters to pay him, but without referring to her separate estate, it was held that her separate estate was liable to the payment of the solicitor's bill of costs, a retainer in writing implying a promise to pay whatever should be reasonably and lawfully demanded by the solicitor acting under that retainer.(g) Sir L. Shadwell, V. C., who first decided the case in favour of the solicitor, drew a distinction between an express promise to pay by a married woman, which will bind her separate estate, although that estate is not named, and an implied assumpsit, by which that estate is not considered liable to her general debts.(h)

It has sometimes been contended that the wife cannot alien by anticipation the funds settled upon her by her husband on a separation, whilst others hold that there is no difference between this case and that of an ordinary limitation of property to her separate use. (i) The case of Hyde v. Price,(k) has been supposed to establish that she cannot dispose of such a provision, except as it becomes due. In that case the husband and wife having agreed to live separate, he executed a deed of separation, in which he covenanted with a trustee to pay a certain allowance for the support and maintenance of his wife during the joint lives of the husband and wife. The wife, whilst living from

(f) 3 Madd. 79.

(i) 2 Roper on Husband and Wife, 301; (g) Murray v. Barlee, 3 Mylne & K. 209. Clancy, 382, 3d ed. (h) Murray v. Barlee, 4 Sim. 91. (k) 3 Ves. 437.

her husband, joined with her son in executing a bond and warrant of attorney for securing an annuity to the plaintiff, who filed a bill praying an account of the dividends, in respect of certain bank annuities, which had been vested in the hands of trustees, as the fund for the payment of the maintenance, and that the fund might be transferred to the accountant general, and that what should be found due to the plaintiff, and the future payments from time to time, might be paid out of the dividends and interest of the said stock. Arden, M. R. dismissed the bill so far as it sought payment of the annuity out of the fund during the life of the wife, giving it as his opinion, "that the separate maintenance was not property she was entitled to for her sole and separate use; that there was a special trust upon [ *664 ] it; that she had no dominion over it; that her grant was in defiance of the deed, and therefore could not be enforced in a court of equity." And he said that he was to construe the deed and to say whether the husband did intend that his wife should have dominion over the fund, and that he was clearly of opinion he did not. The power of alienation seems to have been denied in this case on the ground of the deed pointing to a personal enjoyment. Where it is intended that the wife shall not dispose of the interest, an express clause should be inserted that she shall not sell, mortgage, charge, or otherwise dispose of the same in the way of anticipation. () In the absence of such a restriction, it should seem that there is no difference between separate maintenance and any other separate estate of the wife. In a recent case Lord Abinger, C. B. is reported to have said, "if this were res integra, I should say that, unless separate estate arose from circumstances in which separation was not contemplated, it ought not to be made the subject of charge by the wife; and for this reason, that a settlement of property to her separate use before marriage, and a settlement for her separate maintenance after marriage, under a deed of separation, are made with altogether different objects. At law, where the wife has separate property settled upon her before marriage, the maintenance not being the immediate or exclusive object of this provision, he is equally bound to maintain her as if she had no such property. All the obligations to which the wife may expose the husband are as strong in that case as in any other; and proof that she had separate estate would be no answer to an action brought against him on her account. But where, after the marriage, a fund is created, and a covenant entered into for the separate maintenance of the wife, it is nothing more than a declaration by the husband, that though he is bound to maintain her, he means to do so separately. Instead of receiving her in his own house, he says he will maintain her in another, and that he expects her friends will see that he is not burdened with any other debts on her account. Now the object of such a *provision is, in my opinion, sim[ *665 ] ply that of the wife's maintenance, and not that she may be able to raise money upon it. I fear, however, that I cannot act upon this distinction, however just I may deem it, after the cases have gone so great a length in giving effect to deeds of separation." These observations were made in a case where A. by a deed of separation

(l) Tullett v. Armstrong, 1 Beavan, 1—33.

covenanted with a trustee that he would pay to his wife or to the trustee, for her separate use, an annuity during the separation; and by the same deed A. assigned leaseholds to the trustee to secure payment of the annuity. A. regularly paid the annuity to his wife, without the intervention of the trustee. Afterwards the wife, on the faith of this separate property, borrowed money of B., who filed his bill against the husband and wife (without making the trustee a party) for payment of his debt out of the annuity. The husband then filed his bill against the trustee and B.; and the wife stating that B. had filed his bill against him, and also that the trustee threatened to distrain for the arrears of the annuity; and praying to be at liberty to pay the arrears into court, and to be indemnified against the costs of B.'s suit: it was held upon demurrer that this bill was not sustainable, either as a bill quia timet in regard to the costs of B.'s suit, or as a bill of interpleader; inasmuch as B.'s suit, in its then existing frame, was not sustainable against A.(m)

of

Although the creditor has a right to proceed against the separate maintenance of the wife, and against the husband as allowing it to her, yet if with a knowledge of her separate allowance he gives her credit beyond its extent, he cannot recover the difference from the husband. Thus where the wife, who was entitled under articles of separation from her husband to 80l. per annum, went to lodge with the plaintiff, with whom she continued for eight years, when she became a lunatic, upon which her husband took her away, and placed her in The bill was filed for an account of a proper situation at 40%. a year. what was due to the plaintiff for lodging and other necessaries, and to have a receiver appointed of the profits of the *wife's [ *666 ] separate maintenance, and to be paid her demand out of them with costs, and for an injunction to prevent any conveyance her estate. The demand of the plaintiff exceeded the amount of the allowance, and the bill was dismissed; the lord chancellor saying, "that upon the question whether the creditor has a right against the separate estate of a wife, and against the husband as allowing it to her my opinion is, that prima facie a creditor has such a right. The question here is whether the plaintiff did not advance to her wantonly; for she appears to have been a very weak woman always. In point of equity, as far as the separate maintenance goes, her creditors have a right to be paid in equity, though in point of law she is not otherwise a feme sole. She contracted the debt while in possession of 801. a be a year. Her husband withdrawing the contract afterwards may more difficult point. Her bond will operate as a confession of her debt, supposing her at the time clear enough to confess it, if to no other effect. But it is out of all right to go upon the husband beyond her separate allowance, where the plaintiff knowing she had a separate allowance from her husband, suffered her to run in debt beyond that. She cannot possibly go beyond it. The husband is more a formal party than any thing else, for the plaintiff really goes against the wife in respect of her separate estate.”(n)

A trustee for a married woman, having received a notice of a

(n) Lillia v. Airey, 1 Ves. jun. 277.
(m) Palmer v. Fraser, 3 Y. & Coll. 491.
212

charge executed by her on her separate estate, was held personally liable for payments afterwards made to her; and that notwithstanding the validity of the charge was disputed by her, and no application had been made for an injunction.(o)

[ *667 ]

SECT. V.-OF THE WIFE'S REMEDIES AGAINST THE HUSBAND
WHEN MOLESTED BY HIM DURING SEPARATION.

Husband's Authority over his Wife.]-By the law of religion, and the law of this country, the husband is entrusted with authority over his wife. (p) So, generally, the husband has a right to the custody of the person of his wife, but he is not justified in obtaining it by illegal means, as by force.(q) The husband has, however, by law, power over his wife to keep her by force within the bounds of duty.(r) The husband also by the old law might give his wife moderate correction. But this power of correction was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causâ regiminis et castigationis uxoris suæ, licite et rationabiliter pertinet. (s) But Blackstone(t) observes, that in the politer reign of Charles the Second, this power of correction began to be doubted.(u) and a wife may now have security of the peace against her husband, or in return a husband against his wife. The coercive power which the husband has over his wife does not extend to confine her; for by the law of England she is entitled to all reasonable liberty if her behaviour be not very bad; but where the wife will make an undue use of her liberty either by squandering away the husband's estate, or going into lewd company, the husband, in order to preserve his honour and estate, may lay such a wife under a restraint.(w) It has been said that the husband has in consequence of his marriage a right to the custody of his wife; and whoever detains her from him violates that right, and he has a right to seize her wherever he finds her (x)

In a recent case, it was held that the husband, in order [ *668 ] to *prevent his wife from eloping, has a right to confine her in his own dwelling-house, and restrain her from her liberty for an indefinite time, using no cruelty, nor imposing any hardship or unne cessary restraint on his part, and on her's there being no reason from her past conduct to apprehend that she will avail herself of her absence from his control, to injure either his honour or his property. By the return to the writ of habeas corpus, which was obtained on behalf of the wife, it appeared that the parties lived together for about three years immediately after their marriage, on terms of apparent affection,

[blocks in formation]
[ocr errors]

and had two children; that in May, 1836, without any imputation of immorality, coldness, or cruelty on the part of the husband, the wife withdrew herself and offspring from his house and protection, and had resided away from him against his will for nearly four years, during all or the greater part of which time her place of residence in Ireland and France had been unknown to him. It further appeared that she had been induced to return to this country, and placed in her husband's power by a stratagem only; and that she had repeatedly asserted (and she still avowed the same intention) that whenever she had it in her power she would again run away from him, and that he should never see or hear of her again. But on the other side it appeared that the wife left her husband either with her mother, a widow, who had been living with them, or immediately went to her; that she had resided under her roof, and that there was nothing in the return to justify the slightest imputation on her honour beyond having appeared at masked balls, unprotected by the presence and without the permission of her husband. The court was of opinion that the wife must be restored to her husband, as the restraint imposed upon her arose from her own breach of duty; but that the moment such restraint became unnecessary for keeping her in the path of duty, it would become illegal, and she would be entitled to claim the protection of the court.(y)

The court will not grant a writ of habeas corpus, unless there distinctly appears to be some improper restraint on the personal liberty of the party desired to be brought up. Therefore the court would not grant such a writ to bring up the body of [ *669 ] a married woman on an affidavit that she was desirous of disposing of her separate property, and that her husband would not admit the necessary parties to see her, and that she was confined by illness, and not likely to live long; nor would they under such circumstances grant a rule to show cause why the necessary parties should not be admitted to see her, for if there be no restraint of personal liberty the matter is only cognizable in a court of equity.(z)

In cases of unreasonable or improper confinement by the husband, the courts will relieve the wife on habeas corpus. (a) Where the wife was brought up upon the return of a habeas corpus, directed to her mother and uncle, which had issued on her husband's application, it appeared that the wife had been very ill used by her husband, and fled from him to the defendants for security and protection, and swore the peace against him. The court refused to order her to be delivered to her husband, and told her "she was at liberty to go where she thought proper," and offered her the assistance of an officer of the court to secure her from any insult in returning to her friends.(b)

Husband's Right to control Wife waived by Articles of Separation.] -If the husband, after articles of separation between him and his wife, confine her, she may obtain her liberty by means of a writ of habeas corpus.(c) The husband may waive his right to the custody of his

(y) In re Cochrane, 4 Jurist, 534.

(z) Rex v. Middleton, 1 Chitty's R. 654; sec Case of Hottentot Venus, 13 East, 195; Atwood v. Atwood, Pre. Ch. 492; Bridg. Ind. Baron and Ferne, 9, s. 284; Rex v. Turling

ton, 2 Burr. 1115.

(a) Lord Ferrers's case, 1 Burr. 634. (b) Gregory's case, 4 Burr. 1991; see Lord Ferrers's case, 1 Burr. 634.

(c) Lord Vane's case, 13 East, 172, n.

« ÖncekiDevam »