1 Osborn v. Nelson, 59 Barb. 381 (1871); Chapman v. Lemon, 11 How Pr. 235.
2 Gregory v. Paul, 15 Mass. 31; M'Arthur v. Bloom, 2 Duer, 151.
3 Abbot v. Bayley, 6 Pick. 93.
4 Co. Litt. 132 b, 133 a; ante, § 86.
§ 150. Connected with this exception is another, growing out of it, which obtains when the husband is an alien or foreigner, and has never lived in the country; in which case, he is presumed to have no intention to come to his wife, and she is, therefore, enabled to contract as a feme sole1 But if he have ever resided in this country, the exception would not obtain.2
§ 151. Fifth. Another and partial exception is where a husband and wife are divorced a mensa et thoro (by which the marriage is not dissolved but may be re-established by the agreement of both parties), in which case the disability of the wife to contract is partially removed; and during such divorce she may sue her husband for the alimony decreed to her by the court, and may also bring suit in the ecclesiastical courts for any personal injury.3
§ 152. The well-settled rule of the common law, which now obtains in the English courts, is, that coverture is a good plea, notwithstanding a divorce a mensa et thoro, and that no married woman can either sue or be sued as a feme sole, though living apart from her husband, and receiving an ample allowance for her separate maintenance, unless the husband be under some civil disability.4 But the rule in some parts of this country differs from that of the common law of England, and allows the wife, during a divorce a mensa et thoro, to maintain suits, either for injuries done to her person or property, or upon contracts express or implied arising after the divorce, without joinder of the husband.5
1 Walford v. Duchesse de Pienne, 2 Esp. 554; De Gaillon v. L'Aigle, 1 Bos. & Pul. 357.
2 Kay v. Duchesse de Pienne, 3 Camp. 123; Gregory v. Paul, 15 Mass. 31; Robinson v. Reynolds, 1 Aik. 174.
3 Motteram v. Motteram, 3 Bulst. 264; Chamberlain v. Hewitson, 1 Ld. Raym. 73; s. c. 5 Mod. 71; 2 Dane's Abr. 307.
4 Hatchett v. Baddeley, 2 W. Bl. 1082; Lean v. Schutz, 2 W. Bl. 1195; Hyde v. Price, 3 Ves. 443; Marshall v. Rutton, 8 T. R. 546. This rule, after many contradictory decisions, was finally settled in the last cited case, and is supported by all the modern cases. Lewis v. Lee, 3 B. & C. 291.
5 Dean v. Richmond, 5 Pick. 467; Abbot v. Bayley, 6 Pick. 89; 2 Kent, Comm. 157. See Revised Statutes of Massachusetts, part 2, tit. 7, ch. 77, as to the power of a married woman to contract, etc. Pierce v. Burnnote negotiable.1 But if, before be reduces sucb chose in action to bis possession, she die, he can only sue thereupon as her administrator, and not personally.2 So, also, if he die before reducing it to possession, it becomes the sole property of the wife, and she can sue upon it alone.3 Again, if he should join her name with his own as co-plaintiff, and bring an action thereupon, and should die after judgment, the wife would be entitled to the benefit of the chose in action, as the judgment would survive to her.4
§ 153. But, although, during her coverture a married woman cannot render herself personally responsible on her contracts, yet if a contract be made with her on good consideration, during the marriage, the husband may, if he please, take advantage of it, and recover in an action upon it, making her a co-plaintiff in the suit. So, also, in such a case, if the husband do not elect to sue thereupon, her right to sue separately thereon remains merely in abeyance during his life, and survives to her personally upon his death.1 Thus, where the wife had undertaken to cure a wound for the sum of £10, and the patient would not pay the agreed sum after he was cured; she and her husband brought suit against him, and recovered judgment, and a writ of error being brought thereon in the .Exchequer Chamber, on the ground that a married woman could not sue, the court said, that, "being grounded in a promise made to the wife upon a matter arising upon her skill, and on a performance to be made to the wife, she is the cause of the action, and so the action brought in both their names is well enough, and such action shall survive to the wife," -wherefore the judgment was approved.2 All the earnings of the wife during her coverture, and all gifts to her, are in the same predicament. So, also, upon all choses in action, such as a bond, bill of exchange, or promissory note, given to her during her separate life, the husband may either sue alone, or make her a co-plaintiff, and his indorsement will make such bill or ham, 4 Met. 303. Mr. Chancellor Kent, in his Commentaries, vol. ii. pt. iv. lect. 28, p. 158, speaking of this rule says, " This is the more reasonable doctrine; and it seems to be indispensable that the wife should have a capacity to act for herself, and the means to protect herself, while she is withdrawn, by a judicial decree, from the dominion and protection of her husband. The court of Massachusetts has intentionally barred any inference that the same consequence would follow if the husband was imprisoned by law for a public offence or crime. But such a case might be equivalent to an abandonment of the wife, and ground for a divorce a mensa et thoro; and there is as much reason and necessity in that case as in any other, that the wife should be competent to contract, and to protect the earnings of her own industry."
1 Dougherty v. Snyder, 15 S. & R. 84; Ankerstein v. Clarke, 4T.R. 616; Gaters v. Madeley, 6M.&W. 425; ante, § 144.
2 Brashford v. Buckingham, Cro. Jac. 77.
§ 154. Since, therefore, the husband, by reducing his wife's choses in action to his possession during his life, can acquire a personal right thereto, so as to prevent the survivorship of the remedy to her, it becomes necessary to consider what constitutes a reduction to possession. And in this respect the rule is, that the husband must appropriate them to himself by some precise and specific act evidencing a clear disagreement to the further continuing of a separate interest in the wife.1 Thus, if a husband receive the money on a promissory note, or sue alone and recover upon a bond made to his wife, he will have reduced it to his possession.2 But the reception of interest on a chose in action, or even of a partial payment thereof, will only be a reduction to his possession of the portion received, and the remainder will survive to the wife.3 So, also, possession by the husband in the capacity of executor or trustee is not such a reduction to possession as to destroy her right.4