This disability is almost entire at common law. The usages of this country, recognized more or less distinctly by the courts, have lessened this somewhat, and the recent legislation of most of the States has modified it very materially; as may be seen in the synopsis at the close of this chapter. (c)

Even at common law there were some exceptions. Thus, a wife might purchase land in fee, and the grant would not be void. But it would be voidable by the husband by any act distinctly expressing his dissent; and voidable also by the wife after her husband's death. (d) Her conveyance of her real estate was absolutely void at common law. But the usages of this country, from the earliest colonial times, have so modified this rule, that a conveyance by her and her husband, jointly, of her land, is valid; but not by separate deeds, (dd)1 In some of the States precautions

532. And see Norwood v. Stevenson, Andrews, 227. But to be liable for the wife's torts committed before coverture, a marriage de facto is not sufficient; and a man with whom a woman already married contracts matrimony, her first and lawful husband still living, is not responsible for her torts committed before coverture. Overholt v. Elswell, 1 Ashin. 200. And the same reasoning would seem to apply to her debts contracted before coverture. And a husband is not liable for the debts of his wife dum sola, unless the wife herself was liable for them at the time of her marriage. Caldwell v. Drake, 4 J. J. Marsh. 247.

(b) Norwood v. Stevenson, Andrews, 227.

(c) See Yale v. Dederer, 18 N. Y. 265; S. C. 22 N. Y. 450; 68 N. Y. 329, fur an examination of the question how far and when the note of a married woman binds her separate estate under the existing law of New York. It seems that it does not, unless she distinctly consent that the debt should be created on the credit of that estate, and should bind it.

(d) Co. Lit. 352 a: 2 Bl. Com. 292. (dd) Baxter v. Bodkin, 25 Ind. 172.

1 So a subsequent assent of the husband renders her deed valid, if the wife has not meanwhile repudiated the conveyance, Wing v. Schramm, 79 N. Y. 619; or where a deed is expressed as the wife's, but the husband signs and acknowledges it with her. Thompson v. Lovrein, 82 Penn. St. 432. But if a husband is insane, the wile's deed is void. Leggate v. Clark, 111 Mass. .308. - A wife's mortgage, without husband's joinder, is also void, Weed, etc. Co. v. Emerson, 115 Mass. 554; Herdman v. Pace, 85 are taken by statute to secure her actual consent, by requiring that she should be examined concerning this matter by a magistrate, without her husband being present. (e)1

She may relinquish her dower, by executing with her husband his deed of the land; provided that apt words, to indicate her purpose of release, are in the deed; for these are necessary to make the release effectual. (/) Generally, she cannot release her dower by her own separate deed; but in a very few of the States it is said that she may. (g)

The agreement of a wife for a sale of her real estate, though *made with the assent of the husband, is said to be wholly void at law and in equity.(h)2 Nor will she be held after her husband's death on any of her covenants of warranty, unless so far as they may operate upon her by way of estoppel. (i)3

In England, a married woman, trading independently of her husband within the city of London, may, by the "custom of London," sue and be sued as a feme sole, with reference to such dealings of trade. (j) But even there the husband should be made a party to the suit, (k) though she will be treated as the substantial party. Elsewhere in England she can act as a single woman only when the legal existence of her husband may be considered as extinguished, wholly or for a definite period; as in case of outlawry, abjuration of the realm, or transportation for life, or for a limited term. (l) In this country, however, in part

(e) 2 Kent, Com. 152.

(f) Catlin v. Ware, 9 Mass. 218; Luffkin v. Curtis, 13 Mass. 223.

(g) Ela v. Card, 2 N. H. 175, Gordon v. Haywood, id. 405; Fowler v. Shearer, 7 Mass. 14; Rowe v. Hamilton, 3 Greenl. 63. But see Powell v. Mouson Man. Co. 3 Mason, 347, and Hall v. Savage, 4 Mason, 273; Lawrence v. Heister, 3 Har. & J. 371; Manchester v. Hough, 5 Mason, 67; 2 Kent, Com. 153.

(h) Butler v. Buckingham, 5 Day, 492; Watrous v. Chalker, 7 Conn. 224.

(i) Fowler v. Shearer, 7 Mass. 21; Colcord v. Swan, 7 Mass. 291; Jackson v. Vanderheyden, 17 Johns. 167. See as to estoppel," Hill v. West, 8 Ohio, 225, opposing Jackson v. Vanderheyden, and agreeing with the Massachusetts cases.

(j) Bac. Abr. Baron & Feme (M).

(k) Caudell v. Shaw, 4 T. R. 361; Beard v. Webb. 2 B. & P. 93; Starr v. Taylor, 4 McCord, 413; Laughan v. Bewett, Cro. C. 68.

(l) Marshall v. Rutton, 8 T. R. 545. And a married woman cannot there he by statute, as in Pennsylvania and South Carolina, (m) and as an effect of the powers and privileges now given to the wife in many States, and to some extent by the decisions of the courts, the law, as we have already intimated, is much more reasonable, * and a married woman may act as if unmarried under many circumstances; as for continued abandonment, (n) alienage, and non-residence, or the privity and acquiescence of the husband, although not expressed by deed. (o)

Ill. 345; Yager v Merkle, 26 Minn. 429; as well as her assignment of a mortgage, Moore v. Cornell, 68 Peun. St. 320. - Where a husband and wife are both named " parties of the first part," and then such parties as " grantors," it is a good deed, and binds them both. Thornton v. Exchange Bank, 71 Mo. 221. - K.

1 A wife's deed is void, unless the statute formalities are fully complied with, Wentworth v. Clark, 33 Ark. 432; but a substantial compliance with the statute is sufficient, Thayer v. Torrey, 8 Vroom, 339; Hamar v. Medsker, 60 Ind. 413; Laughlin v. Fream, 14 W. Va. 322; Allen v. Lenoir, 53 Miss. 321; Little v. Dodge, 32 Ark. 453.

2 Nor can she bind herself to buy land. Robinson v. Robinson, 11 Bush, 174.

3 Nor are her heirs and devisees answerable on her covenants. Foster v. Wilcox, 10 R. I. 443.

It may be added, that the husband is, in general, held for the torts or frauds of the wife, committed during coverture. If committed by his order, he is alone liable. If while she is in his company the law presumes his order; but this presumption may be overcome by evidence.1 Where both are liable, and must be sued on her contracts, although she live apart from her husband in a state of adultery, and there exist a valid divorce a mensa et thoro, and she contract during such separation in the assumed character of a single woman. Lewis v. Lee, 3 B. & C 291. 5 Dow. & R. 98; Faithorne v. Blaquire, 6 M. & Sel. 73; Turtle v. Wore-ley, 3 Dougl. 290. But see Cox v. Kitchin, 1 B. & P. 338. Neither is her personal representative liable under such circumstances, although he have abundant assets. Clayton v. Adams, 6 T. R. 604. But if the legal existence of the husband is considered as extinguished, the wife may contract as a feme sole. Lady Belknap's case, Year Book, 1 Hen. 4, 1 a; Lean v. Shutz, 2 W. Bl. 1195; Marsh v. Hutchinson, 1 B. & P. 231; Ex parte Franks, 7 Bing. 762, 1 M. & Scott, 1; Carrol v. Blencow, 4 Esp. 27; Stretton v. Busnach, 1 Bing. N. C. 140.

(m) In Pennsylvania and South Carolina a wife may become a sole trader, and become liable as such, in imitation of the custom of London. Starr v. Taylor, 4 McCord, 413; Newbiggin v. Pillans, 2 Bay, 162; McDowall v. Wood, 2 Nott & McC. 242; Burke v. Winkle, 2 S. & R. 189; Jacobs v. Featherstoue, 6 W. & S. 346. She must, however, in order to have the privilege of contracting as a feme sole, be technically a trader. McDaniel v. Cornwell, 1 Hill (S. C), 428. The privilege does not extend to a woman who is a common carrier. Ewart v. Nagel, 1 McMull. 50. Nor to one who was separated from her husband, and supported herself by her daily labor. Robafds v. Hutson, 8 McCord, 475. Keeping a shop as a milliner brings her within the privilege. Surtell v. Brails-ford, 2 Bay, 333. But her privilege to contract as a feme sole extends no further than to such contracts as are connected with her trade. McDowall v. Wood, 2 Nott & McC. 242. And see Wallace v. Rippon,2 Bay, 112.

(n) If the husband is banished, then, as we have seen, by the laws of England and of this country, a wife may contract as a feme sole. Wright v. Wright, 2 De-saus. 244. And the law is the same whether he is banished for his crimes, or has voluntarily abandoned his wife. Rhea v. Rhenner, 1 Pet. 105; Chapman v. Lemon, 11 How. Pr. 235. The voluntary absence of the husband, however, must be more than temporary in order to have this effect. Robinson v. Reynolds, 1 Aik. 174; Gregory v. Fierce, 4 Met. 478; Commonwealth v. Collins, 1 Mass. 116; Chouteau v. Merry, 3 Mo. 254. If it amount to absolute and complete desertion, then it may be sufficient. Cases supra, and likewise Ayer v. Warren, 47 Me. 217. Whether the imprisonment of the husband for life, or a term of years, in our State prisons, will have the same effect, is more doubtful. See 21 Am. Jur. 8; 1 Swift, Dig. 36; Cornwall v. Hoyt, 7 Conn. 427. If the husband is an alien, and never resided in this country, the wife may sue and be sued as a feme sole. Kay v. Duchess de Pienne, 3 Camp. 123; Deerly v. Mazarine, 1 Salk. 116: Robinson v. Reynolds, l Aik. 174; De Gaillon v. L'Aigle, 1 B. & P. 356, compared with Farrer v. Granard, 4 B. & P. 80. But this rule is qualified in Harden v. Sever-berg, 2 M. & W. 61, in whirl, it is held that she is responsible only if she represents herself as a feme sole, or the plaintiff has knowledge of the facts. (o) McGrath v. Robertson, l Desaus.

445.

1 Her defence of coercion should be set up in the pleadings. Clark v Bayer, 32 Ohio St. 299. See Handy v. Foley, 121 Mass. 259; Ferguson v. Brooks, 67 Me. 251.

sued jointly, the remedy, by imprisonment or execution, must be sought of the husband alone. (p) But if the tort of the wife alone be punishable by imprisonment, this punishment falls on her alone. If the wife be sued jointly with her husband, for her libel (and perhaps for other torts), the damages shall be the same as if she were unmarried. (q) If the husband assumes to be the agent of the wife, and in that capacity commits a fraud, it is said that she cannot be made liable, because she has no power to make her husband her agent. (r) But this we think may be doubted.