CH. 19. Art. 22. 399, and means of trustees or without, to her sole and separate use, or by any words, clearly expressing such intent, it is exclusively hers, and her husband has no control over it, but will be deemed to be her trustee of it, and it will not be liable for his 2 P. W. 316, debts. As where land was devised to a feme covert to her also 3 Atkins, separate use, and no trustees appointed; held, her husband Bunb. 187, was trustee, and though he had become a bankrupt, the devised premises were not subject to the bankruptcy, as his interest therein was only that of one holding the property and legal title, as the trustee of another. So even if the baron gives his wife the estate for her separate use, it is valid. 1 Roll. R. 334; 3 Atk. 393; 2 Ver. 659. 205-3 P. W. 144, 344. 14 Ves. 642. Scammel v. Wilkinson. The wife cannot devise by her husband's consent her earnings after his death, but only property over which he has a Mod.211,212. disposing power; but alone can devise goods she has as exec--Moor 340. utrix, his assent cannot give her a disposing power over goods she acquires after his death. If he once assents, he cannot after dissent. 2 Mod. 172, 173; Eq. Ca. Abr. 66. § 11. What is her separate property. To make property such the technical mode is, to grant, give, devise, or settle it to her sole and separate use; but these technical words are not essential, but any words which clearly express such to be the intention. Her separate property is liable for her contracts made during marriage, and may be taken by process in equity. And so in the States in which there are courts of chancery, and why not at law by process against that only, and not against her body, or even against that, where her imprisonment will in no manner affect her husband's marital rights. -Pr.Ch. 84. 3 P. W. 334. On the wedding night the son's father gave diamonds to his 3 Atk. 393. wife. Held, her separate property and not paraphernalia. So a gift of ornaments to the wife by her husband or a stranger, has been deemed in the same point of view. So where A, the husband, bound himself to B to pay to him £100 for the use of A's wife, and he did not pay; held, B might compel the payment, and that B was trustee of the money for her use; we often practise on the principle of this case, as the trustee who sues and holds the money is wholly independent of the husband. The wife granted an annuity out of her separate property 14 Ves. 442. for her huband's benefit. And held valid, and she was not allowed to plead she did it by his coercion, from fear of him who treated her harshly to get it. Chancery in this case must have proceeded on the ground, that she acted as a feme sole as to her separate property, and acted freely and without coercion, that is, chancery did not presume coercion, but doubtless if that was the fact, she would have been permitted to prove it, as any other person would be. CH. 19. Art. 22. 1 Atk. 269. 2 P. W. 341. 1 Salk. 118. Money earn ed by the wife living separate, goes to wards her maintenance. 2W. Bl. 1016. If a wife advances her separate property to relieve her husband's estate, and takes his receipt for it, this is no gift of it, but she is a creditor to the amount and in the place of the mortgagee, and must be paid by her husband's representative before he can have the estate; but if she take no receipt, and has no evidence it was an advance, it will be deemed her gift to him. So if he use her separate property, it is her gift to her husband, if no evidence presumed she meant it a credit. So if she advance her separate property for the support of the family, whether a gift, or a credit, will depend on the evidence of the fact, and such evidence as will prove a similar fact in any other case will prove it in this; usually, if she lend it to him on interest, it is a credit and debt due to her, and he is trustee. It is now clear, when the wife is put under no restraint as to her separate property, she can dispose of it as she pleases, independent of the trustees, and they must convey it according to her directions. They are not appointed to control her but for legal form, and to guard against her husband, and generally she can dispose of her separate property as a feme sole can, and also subject it to her debts and contracts in like manner, but not in either case so as to affect the rights of others; nor can the feme sole do this. She sues in chancery in the name of her trustees; if there be none, in the name of her husband and herself; if he refuse, in the name of, or by a prochein ami, and she having separate property may be sued as a feme sole in a court of equity. As to her pauper settlement, see Poor, ch. 53; but it is the better opinion that articles of separation and separate maintenance do not exempt her husband from being obliged to maintain her on the pauper laws, for they cannot be repealed or varied by their agreements; but quære, if divorced from bed and board by sentence of court, as this is part of the law; but if a vinculo, she is no longer his wife. How witnesses or not, as to each other, see Evidence, ch. 90, a. 7. As to the due celebration of marriage, and age of consent, see Marriage, ch. 46, and Divorces, ch. 46. Her separate maintenance payable quarterly, is to be apportioned at her death. 12. Contracts for separation. It is now beyond all doubt that these, and for separate maintenance for the wife, are valid, not only in equity but in law, as before stated; and see 10 Vesey 191; 2 Vent. 217; 2 Atk. 511, 599; 2 East 282, Rodney v. Chambers. The trustee need not covenant to indemnify the husband against his wife's debts, in order to bind him. If no creditors, he is bound, and if creditors, the settle213, 214, &c. ment will be enforced, she paying them. Lord Hardwicke held, a contract between husband and wife, without a trustee, 2 Atk. 511.3 Atk. 294, Reeve's D. R. 295 to 297. for a separate maintenance, was binding on him, and to be enforced in chancery in her suit against him; and his letter to her father, promising to pay her a sum of money, was a contract to her, and valid to this purpose; and in point of public policy it is as unexceptionable as a contract with the intervention of a trustee, a case doubted by none of late years. All these contracts are rendered void by fraud or concealment, practised on any party concerned. 1 Vern. 358, 475; 2 Ves. 275; 11 Ves. 165; 1 Bro. 543. § 13. Her person, how liable to imprisonment or not in civil actions. The husband in custody, before declaration she must be arrested, he to give bail for both. CH. 19. Art. 22. 1 Salk. 114. Both rendered after judgment in discharge of bail, wife dis- 3 Wils. 124. charged on motion. Both taken in execution in an action for her assault; both 1 Wils. 149. 1 Ld. Raym. equally charged in trespass. White v. Oldridge. 443. The feme dum sola gave a warrant of attorney and mar- Lofft. 320.ried; leave given to enter up judgment against both, but Salk. 399, it is said an after marriage revokes such a warrant. Salk. 117. 1 4D. & E.362. 3 Bos. & P. 128. In custody on mesne process, she shall be discharged on 2 W. Bl. 720. common bail, and this given by her husband. On the feme's contracts, interlocutory judgment was had 4 East 521, Cooper v. against her; she married; plt. got judgment and execution Hunchin. against her alone, and did not join her husband by scire facias. Execution by capias against her alone was well issued, (the plt. knew of the marriage) for it followed the judgment, and it was her own act to marry pending the suit. A wife sued alone, has no claim to be delivered out of cus- Lofft 396. tody on motion, unless it be shewn she lives with her husband, and openly. 2 W. Bl. 903. The wife dum sola gave her bond and married A, both out- 2 Wils. 127, lawed, and her separate goods were taken in execution. Out- Briscoe v. Kennedy & lawry, as to her set aside but not the execution. It was ux. deemed proper her separate goods should be taken to pay her debt contracted dum sola. Wardell v. A wife discharged on common bail, sued for goods sold and 7 East 582, delivered to her by the plt., then knowing she was a married Gooch. woman, though living apart from her husband, with a separate maintenance. Cleland v. § 14. If the husband claim, in equity, the wife's fortune, by Pr. Ch. 63, reason of his settlement made upon her before marriage, it Cleland.must clearly appear in it he was intended as a purchaser of it 2 Vern. 502, to carry to his representatives, (he dying in her life time,) all Garforth v. her things in action, not reduced by him into possesion; so of Amb. 692. any part. 2 Ves. 675. And if he so acquires her portion she has at the time of the settlement, he does not acquire any Bradley, CH. 20. 2 Vern. 659. -2 P. W. Darley v. future accession to it, unless expressly mentioned. 6 Ves. jr. 385, Drew v. Dennison; 9 Ves. jr. 87, Mitford v. Mitford. 15. When land or stocks are devised, or conveyed, or transferred to the wife for her separate use, and no trustees interposed, her husband becomes her trustee by construction of law, and is accountable in chancery accordingly. And there is no difference where a trust is created by the act of the par3 Ves. jr. 166, ty, or by act of law. Rolfe v. Budder, Bunb. 187; 3 Atk. 399; 9 Ves. jr. 369, Rich v. Cockell; and equity will not only raise a trust, but will infer some gifts from the nature of them to be to her separate use, though not expressly so made. 3 Atk. 393, Graham v. Londonderry. But the intention must be clear, to destroy his marital rights in her property. 5 Ves. jr. 517, Lumb v. Milnes; do. 545, Hartley v. Hurle; 3P. W. 355; Atk. 278; 3 Atk. 72, 270; 3 Br. Ch. R. 340; 2 Vern. Brown v. 385. CHAPTER XX. As to evi dence herein see Ch. 90, a. 10; as to variances be tween the writing and declaration, see Vari ance, index. ASSUMPSIT. BILLS, NOTES, AND NEGOTIABLE CONTRACTS. ACTIONS of assumpsit grounded on bills of exchange, and other negotiable contracts have become very numerous in the United States, as well as in the British dominions, from an immense increase of trade and commerce within a century past. And law books and adjudged cases on these subject have still much more increased. Even as late as 1770, all the English law books then published upon the subject of commerce and negotiable contracts might have been read, and even studied in a few weeks by an English or an American lawyer. These in forty years since have probably increased tenfold, Ch. 80 to Ch. and are still rapidly increasing in bulk and value. To bring into view the laws at large on these important subjects would require thousands of pages; whereas only leading principles, illustrated by a few adjudged cases, can be here noticed, these briefly stated and selected from the best authorities. See Chose in Action, Ch. 24. As to evidence, see Evidence. 100. ART. 1. General principles. A bill of exchange is a written request, and a simple contract, made by one man on another, desiring him to pay monies to a third person, on the drawer's account, and is foreign, when drawn on a merchant abroad, and inland, when drawn on one in the kingdom or government by a drawer there. A foreign bill was originally CH. 20. negotiable, and is an instrument of the law merchant. This Art. 1. law merchant is a part of the law of nations, in which a consideration is not material to make a contract valid, and is part of the common law of England and America. 2. By these English statutes of William the Third and 9 and 10 W. Anne, inland bills are put on the same footing as foreign ones; III, Ch. 17.so that now in law, there is no manner of difference between Anne, Ch. 9. them." 66 3 and 4 of 407. 3. No precise form of words is necessary to make a bill 2 Bl. Com. or note, and the bare drawing a bill makes the drawer a merchant as to that bill. 12 Mod. 30. 2 Burr. 669, 678, Hylen v. Adamson. 2 4. The acceptor of a bill of exchange, when accepted, is the original debtor, and the drawer is liable only on his default. And when endorsed it is a new bill between the en- Show 504. dorser and endorsee, and there is no difference between --I Salk. 133. foreign and inland bills; and the endorsee may sue the endorser, though there be no demand upon, or even inquiry after the drawer, and declare accordingly. Phil. Evid. 12. -2 Bl. Com. 467. 5. But the maker of a note is as the acceptor of a bill, 9 Mass. R. 6. and there must be a demand on him, and notice thereof to the endorser before he can be resorted to by the holder: the maker is the real debtor. 30. 6. A promissory note is a direct and plain engagement Imp. 389.— in writing to pay monies specified, at the time therein limited, Kyd on Bills to a person therein named, or sometimes to his order, or to bearer at large. And by the 3d and 4th of Anne these money notes are made negotiable, assignable, and endorsible in like manner as inland bills of exchange are. considera 7. Before a note is endorsed, it is wholly an instrument See above, of municipal law, and a want of a consideration is a clear tion.-2 Burr. objection; but when it is endorsed, then it is as a bill by the 676, Hylen v. statute, and is governed by the law merchant. It then begins Adamson.Imp. 394, to resemble a bill, the endorsement is the payee's order on the 407.-Chitty maker, his debtor by the note, to pay the contents to the 182, 183, 256. -Chitty 419. endorsee. The maker by drawing the note has promised and accepted to pay; and he now stands in the situation of the acceptor of a bill, each is the original debtor, and in a bill or note endorsed a consideration is presumed. Peckham v. 8. Notes and bills are always presumed to have been W. Bl. 445, made on good consideration, unless the contrary be shewn by Wood. the deft., and the plt. need not aver or prove one. This point was settled A. D. 1785, in White v. Sedwick. So also an Kyd 41. endorsement supposes a consideration. Guichard . 9. But in France, by an ordinance of March 1673, not Kyd 31, 41, only "value received" must be inserted in a bill, but its kind, Roberts. whether money, merchandise, &c. Deft. may prove an illegal consideration, 1 W. Bl. 445. |