§ 144. We now come to the fourth division of persons incompetent to contract, namely, married women. The rule of the common law is, that a married woman cannot, during her coverture, make an obligatory contract.7 And her deed is absolutely void.8 And she cannot contract, even with her husband's consent, unless she be living as a feme sole, her husband being civiliter mortuus.9 Her legal existence is, during such period, merged in that of her husband, and neither she nor he can be sued upon her contracts, unless they are ratified or assented to by him. Upon marriage, all her personal estate is vested in her husband;1he assumes all her debts, and may sue upon all her choses in action, and receive the profits of her labor. Yet no choses in action, unless they be reduced to possession before her death, will survive to the husband, - and if he die before reducing them to possession, they become the wife's sole property,2- and if she die before they are reduced to his possession, they go to her heirs.3 So, also, he is only jointly liable with her for her debts contracted before her marriage, and he cannot be sued alone without some new consideration to him (as delay or inconvenience to the creditor), and in case of her death, he is absolved from liability therefor,4 whether he received a fortune by her or not. There is, however, one exception to this rule, which obtains when a promissory note or bill of exchange is given to her while unmarried, in which case, the marriage is considered as an indorsement to the husband, and he can sue upon it alone.5 The freehold and inheritance of the wife are subject, however, to other rules and regulations; for the husband does not by the marriage acquire an absolute power over them, so as to enable him to make a sale of them without her consent, but he has only a right to receive the rents and profits accruing from them during her life.6 It is the policy of the law, in order to prevent domestic discord, to create a legal unity; it therefore makes the will of one paramount, according to the Homeric maxim,
1 Thomas v. Dike, 11 Vt. 273; Hardy v. Scanlin, 1 Miles, 87; McGiffin v. Stout, Coxe, 92; Trask v. Stone, 7 Mass. 241; Rucker v. M'Neely, 4 Blackf. 179; Bouche v. Ryan, 3 ib. 472. A minor may recover, in an action by his next friend, for services contracted to be paid for to him. Boynton v. Clay, 58 Me. 236 (1870). See Jennings p. Collins, 99 Mass. 29 (1868).
2 Hutt. 92; Palm. 225; 1 Roll. Abr. 287; Cro. Jac. 641. See note to Bingham on Infancy, p. 123; Swan v. Horton, 14 Gray, 179.
3 Sinclair v. Sinclair, 13 M. & W. 640; Crandall v. Slaid, 11 Met. 288; Miles v. Kaigler,. 10 Yerg. 10; Isaacs v. Boyd, 5 Port. 388; Brown v. Hull, 16 Vt. 673.
4 Allen v. Roundtree, 1 Speers, 80; Smith v. Redus, 9 Ala. 99; Bethea V. McCall, 3 ib. 450.
5 Longnecker v. Greenwade, 5 Dana, 516.
6 Miles v. Boyden, 3 Pick. 213.
7 Marshall v. Rutton, 8 T. R. 545; Lewis v. Lee, 3 B. & C. 291; Faith-orne v. Blaquire, 6 M. & S. 73. But in this, as in the other cases of disability, the defence is personal, available only by the feme. Crumbley v. Searcey, 46 Ala. 328 (1871).
8 Concord Bank v. Bellis, 10 Cush. 276.
9 Davis v. Burnham, 27 Vt. 562 (1855).
1 A promissory note given by the husband to the wife before marriage becomes null upon marriage, and does not revive on the survivorship of the wife. Abbott v. Winchester, 105 Mass. 115 (1870); Chapman v. Kellogg, 102 Mass. 246 (1869).
2 Bac. Abr. Baron & Feme, C. 3; Gaters v. Madeley, 6 M. & W. 423.
3 Betts v. Kimpton, 2 B. & Ad. 273; Pattee v. Harrington, 11 Pick. 221.
4 Mitchinson v. Hewson, 7 T. R. 348; Richardson v. Hall, 1 Br. & B. 50; Com. Dig. Baron et Feme, E., 2 C. and (n.); Heard v. Stanford, Cas. t Talb. 173; s.c 3 P. Wms. 409; 1 Chitty, Plead. (6th ed.) 33; Rumsey v. George, 1 M. & S. 180; Milner v. Milnes, 3 T. R. 631; Pittam v. Foster, 1 B. & C. 248.
5 M'Neilage v. Holloway, 1 B. & Al. 218.
6 Bac. Abr. Baron & Feme, C. 1, D. I.
7 Iliad, II. 204. See also the preceding lines.
§ 145. These are, however, exceptions to this general rule, which have been introduced out of regard to the interests of man and the necessities of woman, in order to afford her the privilege of contracting to supply herself with necessaries, and to create a sufficient security for those who provide her with means of subsistence.
§ 146. First. The first of these exceptions is where the husband is civiliter mortuus, that is, where he is under a legal disability to make any contract, and his civil existence is suspended; as where he is transported for life under a judicial sentence; or where he has entered some monastic institution; or where he is banished.1 So, also, a temporary transportation of the husband enables the wife to sue as a feme sole during the term of transportation, but the husband's right revives upon his return.2 This exception in favor of the wife during the transportation of the husband, was first created in the case of Thomas of Weyland,3 who was abjured the realm for felony, - and afterwards, in the case of Sir Robert Belknap, one of the justices of the Court of Common Pleas, who was banished to Gascony until he should obtain the king's favor, and his wife, Lady Belknap, brought an action in the Common Pleas, which was sustained.4 This action was commemorated by the lawyers of the day by a rhyming distich in Latin, which Lord Coke has handed down to us in his 1st Institute, to the following effect: -
" Ecce modo mirum, quod fcemina fert breve Regis, Non noininando virum conjunctum robore Legis."5
At the common law, imprisonment for life would not, as it seems, so extinguish the legal existence of the husband, as to render the wife competent to contract and render herself liable as a feme sole.6 But in some of the States of the United