the Judge of Probate may allow her to hold both, against her husband's will, or executors, &c. But if the judge make her no allowance, she has her apparel. CH. 19. Art. 19. Orrok. § 6. In this action the court decided, that the wife has a 1 Mass. R. separate interest in her alimony, and may have execution even 341, Orrok v. against her husband, on the Act of March 16, 1786. This Reeve's D. R. was in a case of divorce, a mensâ et thoro, from the nature and 37. necessity of the case; for otherwise she would be without remedy for her alimony, or means of support. In Connecticut paraphernalia, includes her beds, as well as clothing, and ornaments and trinkets, as bracelets, jewels, watches, rich laces, &c. Her clothing can hardly be considered her husband's estate, if suitable to her condition, it is not liable to his debts on the principles of the common law; and her proper apparel ought not to be inventoried as her husband's estate, nor can he devise it from her by his will; and Judge Reeve is of opinion he cannot her ornaments or trinkets, though he may take them and dispose of them during the coverture; on his death they vest in her, liable to be taken by his executor for the payment of the husband's debts, where there are not sufficient assets besides to discharge them; her right to them yields only to the rights of creditors. Her paraphernalia can never be taken to pay legacies; they become hers absolutely, after debts paid, and make no part of the personal estate of the intestate husband; and if her paraphernalia are taken to pay debts, she is viewed often as a creditor to the estate of her husband to the amount, in his life time, and after his death; as where he pledges her jewels &c., to raise money, and dies, and leaves more than personal estate enough to pay his debts. So if real estate is devised to pay debts, and the executor takes her ornaments and applies them to pay debts, she shall have a right to the amount against the estate so devised. So if they be so taken, where real estate is given in trust to pay debts. These English principles apply here, where not varied by our statutes; and as these have made the real estate of the deceased liable to pay his debts, a question arises if her paraphernalia are liable for them, while his personal and real estate is sufficient to pay them; as this real estate, so liable by statute, seems to be in the same situation as his real estate made liable by his will, for the same purpose, and as above, real estate so liable by devise, while sufficient to pay his debts, exempts her pharaphernalia from being liable for the payment of them. 3 Atk. 370, 395; 3 P. W. 30; 1 P. W. 729, 730; 2 P. W. 544. The law appoints him her trustee where necessary; as if land be devised to her for her separate use, and no trustee ap VOL. I 47 CH. 19. 2 Dallas 199 to 204, Barnes' les see, v. Irving. 2 T. R. 684, Doe v. Sta Abr. 608, pointed, the husband is trustee; so a bond so given. Toller's L. of Ex. 226, 228. ART. 20. Her appointment &c. § 1. In Pennsylvania there is no court of chancery, and the question arose, what was a good appointment by a married woman. As where the intended husband, A. D. 1774, by deed executed with the intended wife, and a third person, covenanted, that her estate should be to their joint use during their marriage, and after that she "should have full power to dispose of it by deed or will, during coverture." They had no issue. January 29, 1790, during coverture, she made a will in the usual form, made the defts. her executors, and gave them power to sell her real estate. They entered and sold it, and the sale was adjudged to be valid, and that this was a good appointment in the nature of a will, that her husband was barred, and so his heir, the plt., that the deed was like a covenant to stand seised to her use, and direction. The court in this case appeared to act on chancery principles, as there was no chancery in that state, and "so considered what ought to be done as actually done," according to the well known rule in chancery. § 2. In this case the intended husband and wife before their ples. See on marriage entered into an agreement in writing, but not under this point, a. seal, so no deed, and stipulated that a settlement should be 22, and Roll. made of her estate, reserving to her a power to dispose of it; 912.-1 Mod. before the marriage she disposed of it to him by will, and he 157.-Ambl. survived her, and devised the estate, and the devisee's title was held to be bad; for her marriage was a revocation of her will, as the marriage of every feme sole is, as a general rule, for by her marriage she totally gives up her control over her will, and the writing not being a deed did not continue in her a devising power during the marriage by the husband's consent; as might have been done by his deed. 565.-2 Dall. 199. 2 Bl. Com.Chris. Notes 41, and 6 Bro. P. C. 156. 2 Ves. 501.2 Vern. 6. 3. The appointment of a married woman is effectual against the heir at law, though it depends only on an agreement of her husband before marriage, without any conveyance of the estate to trustees. This point has been decided by the House of Lords, though it is not recollected that there has been any adjudication upon this point, in this state. Several cases are recollected in which such agreements have been made, and the question as to their validity may soon arise. § 4. As a jointure comes in lieu of dower, it is not viewed in equity as a purchase by the husband of his wife's choses, but a competent settlement made before marriage is, and. where they are purchased, her right of survivorship is forever What is a purchase or not dépends on the facts in the case.. СH. 19 5. It is held by some, that she may devise her estate without the consent of her husband, where no legal right of Art. 21. his is to be affected by the common law, as far as others can ད devise thereby. By statute of H. 8, she cannot devise her Reeve's D. lands. R. 137, and ART. 21. Several cases. It is now settled his donatio many cases. causa mortis to her is valid. 1. Hill and his wife brought a qui tam action against Davis and another, executors; and it was decided, that a man and his wife cannot recover in this popular action, sued in their joint names, for the wife can have no interest in the judgment jointly with her husband, nor is his interest therein in her right. This was an action against executors, for not causing a will to be proved. 4 Mass. R. 137, Hill & ux. v. Davis. 2. In this case the plt., while a feme sole, brought this 4 Mass. R. action, and pending it intermarried. The deft. pleaded this 659, Haines matter in abatement. Judgment for him, that he recover his ". Corlis jr. costs against her; and execution may go against her; the deft. may sue the judgment against her and her husband. Per kins v. Per 3. In this case the evidence was, that for a long time the 6 Mass. R. respondent had treated his wife in a very abusive manner, 60, 69, and about six years before the libel filed, had unjustifiably kins. assaulted and beat her; after which the parties continued to live together, the respondent continuing to use the same abusive and threatening language. The court did not, for this reason of their continuing to live together, refuse a divorce a mensâ et thoro on the libel of the wife. Her powers in equity, 2 Ves. jr. 488; Anstr. 93. 1 4. In this case the court said, that the husband and wife Stra. 229, Alebury v. may join, or not, in an action, at their election, as where a Walby. bond is to both of them. Same on a covenant to them as to his estate, 2 Mod. 217. § 5. The deft. promised the wife to pay her £10, if she Cro. Jam. 77, cured such a wound, which she did cure, and she and her Brashford v. husband sued for the £10, and the objection was, he ought & ux., in erto have sued alone, as it was a personal duty, that accrued ror, and 205. during the coverture; but the court held, the action was well brought, being grounded on an express promise to her, and upon a matter rising upon her skill," and such an action shall survive to the feme." This case has been questioned as to the right's surviving. 6. In this case the wife advanced monies to the deft. for Cro. El. 61, certain considerations, which failed, and the husband and wife Prat & ux. v. Taylor.-Am. both brought assumpsit for the money, and it was objected the Prec. 24.-Ch. baron ought alone to have brought the action; but the court 9, a. 19. held, it was well brought, for his agreement made the promise CH. 19. 2 Eq. Cases Abr. 139. 7 Mass. R. 95. 3 Atk. 207, 417. good to him ab initio, and the promise being made to her, they may join in the action. § 7. A bond given to husband and wife during the coverture, the right of the bond is in them both, and if the husband dies without any disagreement to her right in it, the bond shall survive to her, but the husband may disagree to her right to the bond, and bring an action on it in his own name. 8. The husband's release of damages for abuse to his wife is valid, and a bar to his and her action. 9. Though he may dissent to her purchase of real estate, that may make him tenant to his disadvantage, he cannot dissent to her estate by descent. ART. 22. Certain material principles resulting from the above and other cases. § 1. The husband is sued with his wife for her debts contracted, and her torts committed dum sola, because she remains the debtor, and if not paid, she is liable if she survive him; or if she die first, her representative in the cases of contracts. 2. Because by the marriage she loses all the means of payment, as he has her personal property in possession absolutely, the usufruct of her real estate during the marriage, a right to all her earnings, and to recover to his use her choses in action whenever he pleases. § 3. She can in no civil case be imprisoned but with him; because it would be most unreasonable to have her in prison alone, till she should pay, when the law has thus deprived her of the means of payment, and to remain till her husband should see fit to pay, who in some cases might never see fit to pay; but when he is imprisoned with her, he will pay the debt to gain his own liberty, and with it hers. Hence, if he escapes, she must be discharged after a reasonable time to re-take him, and if she be arrested, and he is not, she shall be discharged after a reasonable time to take him. And in order he be imprisoned with her, he must be sued with her for her debts and torts. For such both may be arrested. If he be bailed, she shall be discharged on common bail in England, and here where it is known; where not, she is discharged. If he be imprisoned she may be with him, except she finds, substantial bail. So on execution. 4. When is she barred her survivorship? The husband may clearly reduce, during the coverture, all her choses to his use, or he may assign them and bar her. But it is said to bar her surviving of a chose in action, his assignment of it must be for a valuable consideration; but quære, for why 3 P. W. 196. should he be held to receive to him a quid pro quo in disposing of a thing over which the law gives him an absolute power? And it is held, if he voluntarily assign the trust of a term that -2 Vern. 407.-2 Ves. 675. CH. 19. belongs to her, without consideration, she is barred of her right of survivorship; but if he voluntarily assign, and without Art. 22. consideration, her chose in action, or equitable interest, not Salk. 281. the trust of a term, it does not bar her survivorship; but Pr. in Ch. quære, as to the consideration. See 1 P. W. 378. He 419.-9 Mod. may 108. assign a mere possibility in a chose in action, and her right of survivorship is barred. So her right and obligation of survi- 1 P. W. 249, vorship is forever gone, as to debts due to, and from her, by 453-3 Ves. the bankruptcy of her husband, even if the coverture end 617, but before they be reduced to possession &c., and on the princi- 9 Ves. 87. ple that his bankruptcy and the assignment &c. is a disposition in the eye of the law. Though she will be barred of her right of survivorship to her choses, by legal assignment made of them by her husband; yet many cases may exist, in which, in equity, he will be held liable to make provision for her. These cases are so numerous and complicated, and of so little use in the United States, that there is not room or reason here for stating them; but monies in the hands of her trustee, is as money collected in her hands, and not a chose in action. Plow. 363. 5. It is one of the marital rights, that the wife's chattels Reeve's D. real survive to her husband absolutely, on her death, and this R. 22. on the principles of the common law; whereas, her choses not collected, go to her executor or administrator in such case; nor are these chattels real in his hands so surviving, liable for 1 Rol. 345.his debts, and if he mortgage her term and survive her, the Hob. 8. right of redemption is his, by the jus accrescendi, in those States wherein this and joint tenancy are allowed, according to some; but according to others, he cannot be joint tenant with her of her chattels real she has before marriage, as their titles do not commence at the same time, nor from the same act of the parties &c. He can make a lease of her chattels real, to commence even after his death for a valuable consideration, but he cannot devise them away by will. 6. If a feme sole have a term for years, and is dispossessed Co. L. 351.of it and marries, her husband never has possession, and 1 Atk. 92. she dies, her administrator has it, as he has her choses in action; her possibility in such term does not vest in him, or survive to him. 157.-2 P. § 7. If the wife do not join with her husband in a mortgage Pre. in Chan. of his estate, her dower is no way affected by it. If she joins, w. 252. she has a right to redeem paying the debt. So where he 1 Cha. Ca. mortgages his estate before the marriage, she has this right, 27-Reeve's D. R. 52, 53, and in both cases she pays one third, and his heir or devisee two thirds; and when she redeems, she holds the mortgaged premises till repaid the two thirds and interest, if more than the usufruct in the mean time. If her jointure be mortgaged, |