Sivut kuvina

case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of precontract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecility, subsisting previous. to their marriage (26).

II. I am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo matrimonii (b), the other merely a mensa et thoro. The total divorce, a vinculo matrimonii, must be for some of the canonical causes of impediment before mentioned; and those, existing before the marriage, as is always the case in consanguinity; not supervenient, or arising afterwards, as may be the case in affinity or corporal imbecility (27). For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio : and the parties are therefore separated pro salute animarum: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties (28). The issue of such marriage as is thus entirely dissolved, are bastards (c) (29).

(8) "From the bands of matrimony."

(26) The 26 Geo. II. c. 33. was repealed by 3 Geo. IV. c. 75. The present marriage act is the 4 Geo. IV. c. 76. which contains many regulations calculated to ensure a due solemnization of marriage without fraud. A marriage is void where persons knowingly and wilfully marry in any other place than a church or chapel wherein banus may be lawfully published, unless by special licence; or knowing ly and wilfully intermarry without due publication of banns, or licence from a person having authority to grant the same, or knowingly and wilfully consent to solemnization of marriage by a person not being in holy orders. But in all other cases of fraud, or false swearing, or other irregularity, the marriage itself is valid, though the parties offending are liable to punishment, and a forfeiture of property.

The marriage act extends only to marriages in England. Marriages on elopements to Scotland seem to be valid, Bul. N. P. 113. and Dodson's Rep. of sir Wm. Scott's judgment on Dalrymple v. Dalrymple, and 1 Ves. & B. 112. 114. 2 Haggard, 54. 1 Roper, 334. Selwyn N. P. Adultery, 3. 14. Marriages of British subjects in foreign countries are valid if made according to the laws of those countries. Herbert v. Herbert, 30 April 1819, in Consistory Court, 1 Roper, 337. The King v. Inhabitants of Brampton. 10 East, 282. Lawtoor & P. v. Teesdale & Aor. 2 Marsh. 243. Lacon v. Higgins and Aor. 1 Dowl. & R. Ni. Pri. Rep. 38. So a marriage in Ireland, performed by a clergyman of the church of Eng. land, in a private house, was held valid, although no evidence was given that any licence had been granted to the parties. Smith. v. Maxwell, Ryan & M.'s Ni. Pri. Rep. 80. to the evidence to be adduced of a foreign marriage, see the same cases, and 1 Roper, 333.

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(27) The impotency of the husband at the time of the marriage to consummate it, and still continuing, is ground for annulling it,

(c) Co. Litt. 235.

though the husband was ignorant of his constitutional defects. 2 Phil. Ec. C. 10. Corporal imbecility may arise after the marriage, which will not then vacate the marriage, be cause there was no fraud in the original contract; and one of the ends of marriage, viz. the legitimate procreation of children, may have been answered: but no kindred by affi nity can happen subsequently to the marriage; for as affinity always depends upon the previous marriage of one of the parties so related, if a husband and wife are not so related at the time of the marriage, they never can become so afterwards.

(28) But a sentence of divorce may be repealed in the spiritual court after the death of the parties. Co. Litt. 33. 244. 7 Co. 44. 5 Co. 98. but see Cro. J. 186, 7 Co. 43.

(29) In these divorces the wife, it is said, shall receive all again that she brought with her; because the nullity of the marriage arises through some impediment; and the goods of the wife were given for her advancement in marriage, which now ceaseth: but this is where the goods are not spent; and if the husband give them away during the coverture without any collusion, it shall bind her: if she knows her goods are unspent, she may bring an action of detinue for them; but, as to money, &c. which cannot be known, she must sue in the spiritual court. Dyer, 62.

This divorce enables the parties to marry again, and to do all other acts as if they had never been married. Com. Dig. Bar. and Feme, C. 1. and C. 7. Moore Rep. 666. Ca. 9, 10. 1 Salk. 115, 6. Cro. Eliz. 908. 3 Mod. 71. Cro. Car. 463. And after this di vorce, the liability of the husband for the debts of the woman does not continue. Gow. C. N. P. 10.

A sentence of divorce stands in force till reversed on appeal. 1 And. 185. 2 Lev. 169. 5 Co. 98. b. So a sentence for nullity of a marriage in causa jactitationis maritagii. Carth.

Divorce a mensa et thoro is when the marriage is just and lawful [*441] ab initio, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper (31), or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made (32). And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another (d). The civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones: as, if a wife goes to the theatre or the public games, without the knowledge and consent of the husband (e); but among them adultery is the principal, and with reason named the first (ƒ). But with us in England adultery is only a cause of separation from bed and board (g): for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties (), which is now prohibited by the canons (i) (33). However, di

(d) Matt. xix. 9. (e) Nov. 117.

(f) Cod. 5, 17, 8.

But now, confessions, if not made collusively, are not rejected, see 1 Hagg. R. 304, 2 Id. 189, 316. They appear to weigh with the court, as in cases

225. And if the parties die, an examination will not be allowed to prove an heir contrary. Cro. J. 186. 7 Co. 43.

Choses in action, not reduced to possession during coverture, remain the property of the wife on a dissolution of the marriage, either by the death of the husband or a divorce a vinculo matrimonii. Legg v. Legg, 8 Mass. Rep. 99. Sodge v. Hamilton, 2 Serg. & Rawl. 491 (30).

(30) Iu New-York, divorces are obtained on application by bill to the court of chancery. For adultery they are a vinculo matrimonii. But the confessions of the parties are not admissible without other evidence. Divorces a mensa et thoro are granted, on the application of the wife, for cruel and inhuman treatment on the part of the husband, or such conduct on his part as renders it unsafe and improper for her to cohabit with him; or on account of his abandonment of her, and his refusal or neglect to provide for her.

It would seem to have been the intention of the Revised Statutes not to give relief to the husband against the ill treatment of the wife; but in 2 Paige, 501. Perry v. Perry, Chancel lor Walworth held that the former law giving such relief is still in force.

If the wife is guilty, she has nothing allowed to her, and her husband receives the rents and profits of her real estate, and her whole personal estate, as if the marriage still continued. If the husband is guilty, be must allow a support to the wife and children, and restore to the wife all the estate that he re

(g) Moor, 683.

(A) 2 Mod. 314.*

(i) Can. 1603, c. 105

where the grounds of objection to competency of a witness go rather to his credibility, in the temporal


ceived from her that still remains undisposed of. 2 R. S. 145, &c.

(31) Ill temper alone seems not a sufficient cause for divorce. See the admirable observations of sir William Scott, in Evans v. Evans, 1 Haggard's Rep. 36.

(32) But the husband and wife may live separate by agreement between themselves and a trustee; and such agreement is valid and binding, and may be sued upon, if it be not prospective in its nature as for a future separation, to be adopted at the sole pleasure of the wife, the parties being, at the time of making the agreement, living together in a state of amity. See Jee v. Thurlow, 2 Bar. & C. 547. 4 Dowl. & R. 11. 2 East, 283. 6 East, 244. 7 Price, 577. 11 Ves. 529.

If after this agreement to live separate, they appear to have cohabited, equity will consider the agreement as waived, by such subsequent cohabitation. (1 Dowes Rep. 235. Moore, 874. 2 Peere W. 82. 1 Fonbl. 106. as notes, 2 Cox.

Rep. 100. Bunb. 187. 11 Ves. 526. 537.) Or if the agreement, being in consequence of the wife's elopement, the husband offer to take her again. (1 Vern. 52.)

But at law, the wife being guilty of adultery, is no bar to a claim made by her trustee under a separation deed, for arrears of annuity, there being no clause that deed should be void on that account. 2 Bar. and Cres. 547. 4 D.

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vorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament (34).

In case of divorce a mensa et thoro, the law allows alimony to the wife: which is that allowance which is made to a woman for her support out of the husband's estate: being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers (35), for which, if he refuses payment, there is, besides the ordinary process of excommunication, a writ at common law de estoveriis habendis, in order to recover it (j). It is generally proportioned to the rank and quality of *the parties. But in case [*442] of elopement, and living with an adulterer, the law allows her no alimony (k) (36).

III. Having thus shewn how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.

(37) By marriage, the husband and wife are one person in law (1): that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, fæmina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture (38). Upon this principle, of an union of person in

(j) 1 Lev. 6.

(k) Cowel, tit. Alimony.

in the ecclesiastical courts for the adultery of his wife if she recriminates, and can prove that he also has been unfaithful to the marriage vow. 1 Ought. 317. Burn Ecc. L. Marriage, xi. And if after the injured party has knowledge that the crime has been committed he have cohabitation with his wife, he cannot obtain a divorce. Id. ibid.

(34) For the purpose of obtaining this divorce by a bill in parliament, it is necessary that on the petition for the bill to the house of lords (where such bill usually originates), that an official copy of the proceedings and definitive sentence of divorce, a mensa et thoro in the ecclesiastical courts, at the suit of the petitioner, shall be delivered at the bar on oath. Upon the second reading of the bill, the petitioner must attend the house to be examined at the bar, if the house think fit, whether there is any collusion respecting the act of adultery, or the divorce, or any action for crim. con.; and whether the wife was living apart from her husband under articles of separation. In all divorce bills must be contained a clause, prohibiting the offending parties from intermarrying with each other (but this clause is generally struck out in the committee and the act passed without it), and evidence must be given in the committee of the house of commons on the bill, that an action for damages has been brought against the seducer, and judgment for the plaintiff had theron, or a sufficient reason given why such action was not brought, or judgment obtained. See the standing orders of the two houses. The proof of a verdict at law may be dispensed with, where

(1) Co. Litt. 12.

the circumstances are such that the adultery of the wife can be proved by satisfactory evidence, and where at the same time it is impossible for the husband to obtain a verdict in an action at law. It was dispensed with in the case of a naval officer, whose wife had been brought to bed of one child, in his absence upon duty abroad; and upon his return was far advanced in her pregnancy with the second, and where he could not discover the father. So in another case, where a married woman had gone to France, was divorced there, and had married a Frenchman. It would also be dispensed with, if the adulterer should die before the husband.could obtain a verdict.

In case of divorce for the adultery of the wife, the legislature always interferes to make her an allowance out of the husband's estate, and for this most just, humane, and moral reason, that she may not be driven by want to continue in a course of vice. Per Best, J. 4 D. & R. 17.

(35) A word used by Bracton to signify any kind of aliment. And stat. 6 E. I. c. 3, puts it as an allowance for meat or cloth. The modern acceptation of the word, if one it have, refers to house-bote, hay-bote, and ploughbote..

(36) See book iii. p. 94.
(37) See book ii. p. 433.

(38) Whatever may be the origin of femecovert, it is not perhaps unworthy of observa tion, that it nearly corresponds in its signifi cation to the Latin word nupta; for that is derived a nubendo, i. e. tegendo, because the modesty of the bride it is said, was so much con

husband and wife, depend almost all the legal rights, duties, and disabili ties, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her (m): for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself (39) and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage (n) (40). A woman indeed may be attorney for her husband (o); for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death (p) (41). The husband is bound to provide his wife with necessaries by law, as much as himself; and, if she

(m) Co. Litt. 112.

(n) Cro. Car. 551.

sulted by the Romans upon that delicate occasion, that she was led to her husband's home covered with a veil.

(39) The husband and wife being one person in law, the former cannot, after marriage, by any conveyance at common law, give an estate to the wife. Co. Lit. 112. a. 187. b. Nor the wife to the husband. Co. Lit. 187. b. But the husband may grant to the wife, by the intervention of trustees, Co. Lit. 30; and he may surrender a copyhold to her use. A husband cannot covenant or contract with his wife. Co. Lit. 112, a. though he may render his contract binding, if entered into with trustees; for unless by particular custom, as the custom of York. (Fitz. Prescription, 61. Bro. Custom, 56.) a feme covert is incapable of taking any thing of the gift of her husband, Co. Lit. 3. except by will. Lit. s. 168. 2 Vern. 385. 3 Atk. 72. Fonblauge on Eq. vol. 1, 103.

But in equity, gifts between husband and wife are supported, 1 Atk. 270. 2 Ves. 666. 1 Fonb. on Eq. 103. 3 P. Wms. 334. unless in fraud of creditors, &c. or where the gift is of the whole of the husband's estate. 3 Atk. 72. 2 Ves. 498.

But though in equity the wife may take a separate estate from her husband in respect of a gift, and even have a decree against her husband in respect of such estate, 1 Atk. 278, or avail herself of a charge for payment of his debts, Prec. Ch. 26, yet if she do not demand the produce during his life, and he maintains her, an account of such separate estate shall not be carried back beyond the year. 2 P. Wms. 82. 341. 3 P. Wms. 355. 2 Ves. 7. 190. 716. 16 Ves. 126. 11 Ves. 225. 1 Fonbl. on Eq. 104. 1 Atk. 269. 1 Equ. Ca. Ab. 140. pl. 7.

112. a.

By 17 Hen. VIII. the husband may make an estate to his wife; as if he make a feoffment to the use of his wife for life in tail or in fee, the estate will be executed by the 27 Hen. VIII. and the wife will be seised. Co. Lit. So if the husband covenant to stand scised to the use of his wife. Id. a. b. And this where by custom he might devise at common law. Lit. s. 168. So where the husband or wife act en auter droit, the one may make an estate to the other; as if the wife has an authority by will to sell, she may sell

(0) F. N. B. 27.

(p) Co. Litt. 112.

to her husband. Co. Lit. 112. a.

(40) At law, if a man make a bond or contract to a woman before marriage, and they afterwards intermarry, the bond or contract is discharged. Cro. Car. 551. 1 Lord Ray. 515. So if two men make a bond or contract to a woman, or e contra, and one of them marries with her, the bond, &c. is discharged Cro. Car. 551.

Though if it be intended for the advantage of the wife during the coverture, as that she shall have such rents, &c. at her disposal. Ca. Ch. 21. 117.

But a covenant or contract by a man with a woman is not destroyed by their marriage where the act to be performed is future, to be done after the marriage is determined, as to leave his wife so much after his death. Hut. 17. Hob. 216. 2 Cro. 571. Cro. Car. 376. 1 Ch. Ca. 21. 1 Salk. 326. Paim. 99. Carth. 512. Com. Dig. B. & F. D. 5 T. Rep. 381. So the marriage does not defeat a breach before. Skin. 409. And the courts of equity admit a debt in præsenti, or which might arise during coverture, to be extinguished at law by the marriage, upon the notion that husband and wife are but one person in law, and cannot sue each other; yet as they may sue each other in equity, a bond or other security, though void at law, shall be sustained in equity, at least as evidence of an agreement. 2 P. Wms. 243. 2 Vern. 480, 1. 2 Atk. 97. Prec. Ch. 41. Dick. 140. And an agreement to make a marriage settlement shall be decreed in equity after the marriage, though it was to be made before the marriage. 2 Vent. 343. So an agreement to permit the wife to dispose of so much money during her coverture. Dub. 1 Ver. 409. And if a wife charge her estate with payment of her husband's debts, or apply her separate estate to such purpose, and it does not appear to have been intended by her as a gift to her husband, equity will decree the hus band's assets to be applied in exoneration of her estate, or in repayment of the money advanced. 2 Vern. 347. 689. 1 Bro. P. C. 1. 2 Vern. 604. 1 P. Wms. 204. 2 Atk. 384. I Fonbl. on Eq. 102, 3.

(41) A donatio causa mortis by a husband to his wife, may also be good, as it is in the nature of a legacy. 1 P. Wms. 441.

contracts debts for them, he is obliged to pay them (q); but for any thing besides necessaries he is not chargeable (r) (42). Also if a wife

(9) Salk. 118.


(42) Every agreement of any nature entered into by a married woman, without the express or implied consent of her husband, is absolutely void. 1 Sid. 120. 1 Lev. 4. 1 Mod. 128. S. C. 2 Ak. 453. 2 Wils. 3. 8 T. R. 545. 2 B. & P. 105. Palm. 312. Taunt. 217. except indeed in the instance of the queen consort, Co. Lit. 133. a. or of a deed inrolled or covenant on the warranty of a fine, or on a covenant running with the land of the wife, demised by her during coverture, 2 Saund. 180. n. 9. and contracts binding her by special custom, Hob. 225. 34 & 35 Hen. VIII. c. 88; and this rule prevails so strongly that a feme may avail herself of her coverture to defeat a contract, though she have been guilty of fraud, 4 Camp. 26. nor can a married woman even state an account of a debt contracted before marriage. 2 Esp. 716. 1 Taunt. 212. If the wife sell, or dispose of the money or goods of the husband without his assent, the sale is void, and the husband may have trover for the goods; and if she lose money at cards, the husband may bring an action for the money, Com. Dig. Bar. & F. As a consequence of the same doctrine, a married woman cannot in general be made a bankrupt. 1 Mont. on B. L. 4. In equity, the same rule as to the husband's liability for the wife's contract applies, Prec. Ch. 255. 2 Vern. 118. Sel. Ca. Ch. 19. 3 Mod. 186; and a court of equity cannot make the husband liable in respect of the fortune he may have had with his wife for her debts contracted before marriage, 1 P. Wms. 461. 3 P. Wms. 410. Forrester, 173. but see 2 Freem. 231. Though indeed if he take out administration to her, he will be liable to the extent of what he receives as her assets. Forrester, 172. and see post as to enforcing in equity the wife's contract.

But notwithstanding the wife is thus in ge neral incapable of making a valid contract, so as to bind her husband, yet in some cases he will be rendered liable when his assent to her contract can be presumed, or was expressly given. Thus, during cohabitation the law will, from that circumstance, presume the assent of the husband to all contracts made by the wife for necessaries, which are suitable to the husband's degree and estate, and the misconduct short of the adultery of the wife, will not destroy this presumption. 2 Lord Raym. 1006. 1 Salk. 118. And this liability for necessaries is not confined to cases where they are supplied to, or for the use of, the lawful wife of the party to be charged. A man cohabiting with a woman, and allowing her to assume his name, and appearing to the world as his wife, and in that character to contract debts for necessaries, will be liable, though indeed the tradesman knew the circumstances. 2 Esp. 637. 4 Camp. 215. and though the man be married to another woman, 1 Camp. 215. 249; but this rule only holds during cohabitation. 4 Camp. 215. When a man marries a widow, and receives her children into his family, alVOL. I.

(r) 1 Sid. 120.

though he was not bound by the act of marriage to maintain the children, 4 T. R. 118. 4 East, 76. yet, having treated them as part of his family, he is liable for contracts made by the wife in his absence for the education of the children, 3 Esp. Rep. 1. If the husband be an infant, yet he is liable for necessaries furnished to his wife and children, their interests being considered as identified with his own. 1 Stra. 168. Bul. N. P. 155. This legal presumption of assent may in particular cases be rebutted; as for instance, in an action brought for the price of dresses supplied for the wife by her order, evidence may be given that she was not in want of articles of this kind, or that the husband had given notice to the tradesman not to trust her upon credit, 2 Lord Ray. 1006. 1 Salk. 118. So where in an action of assumpsit for goods sold, it appeared that the plaintiff, a jeweller, in the course of two months delivered articles of jewelry to the wife of the defendant, amounting in value to 831., and that the defendant was a certificated special pleader, and lived in a ready furnished house, of which the annual rent was 2001., that he kept no man servant, that his wife's fortune upon her marriage was less than 4000l., that she had at the time of her marriage jewelry suitable to her condition, and that she had never worn in her husband's presence any articles furnished her by the plaintiff, and it appeared also that the plaintiff, when he went to the defendant's house to ask for payment, always inquired for the wife and not for the defendant, it was held that the goods so furnished were not necessaries, and that as there was no evidence to go to the jury of any assent of the husband to the contract made by his wife, the action could not be maintained. 3 B. & C. 631.

And where a husband makes an allowance to the wife for the supply of herself and family with necessaries during his temporary absence, and a tradesman with notice of this supplies her with goods, the husband is not liable. 4 B. & A. 252. Money lent to a married woman cannot be recovered against the husband, 1 Salk. 387. 1 P. Wms. 482. Prec. Ch. 502, even though the money be laid out in the purchase of necessaries; though indeed in a court of equity the lender would, in such case, be entitled to stand in the place of the tradesman by whom the goods were supplied. Id. Where a married woman buys materials for clothing, and pawns them before they are made up, the husband is not liable, for they never came to his use, though it would be otherwise if the clothes were made up and used by the wife, although they may be afterwards pawned by her. I Salk. 118. Com. Dig. B. & F. Where a party contracts solely with, and gives credit to the wife, he cannot sue the husband, though for necessaries; and this, although the wife lives with him, and he sees her in possession of some of the goods, unless indeed the husband by any act shew that he 50

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