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to be settled now, that a writ of ne exeat regno cannot be granted against a married woman as an executrix or administratrix merely, because she has no power as such to act without her husband.

us

and ap

pear alone,

she is

pearance,

and can

not set it

aside for

ty.

It is decided, by the case of Commissary Hyde's wife," If wife be sued jointthat if a married woman have separate property, and a bill ly with her be filed against her and her husband in respect to it, she must appear and answer without her husband, if he cannot be found; but even if the wife be not obliged to appear, bound by and do appear alone, she cannot afterwards set aside that the apappearance for irregularity. In Travers v. Buckley,' the bill was filed against husband and wife, who were administrators, with the will annexed, of the late husband of the irregulariwife. The defendants lived in France, and were served there with a subpoena. The wife came to England, and was taken on process of contempt, which had issued against both. She gave a bail bond for her appearance, and appeared for herself only; she also applied for time to answer, and obtained an order for that purpose. Afterwards, she moved that her bail bond and her appearance should be both discharged, she being a feme covert, and incapable of appearing for herself; but the motion was refused, on the ground that, she having appeared, had cured the irregularity. So that this case is no authority to prove that a feme covert must appear alone in respect to her separate estate, or her separate character; it only proves, that when she is sued jointly with her husband, and does appear alone, she cannot complain of it as an irregular proceeding. Still, it is conceived, that no decree could have been pronounced against her alone, without her husband's appearance having been procured. No doubt, in Dubois v. Hole and Wife," there was a decree against the wife only, but there was this good reason for it, that the wife alone had got possession of the property, which was the object of the suit, and had

s Prec. Chan. 113.

t 1 Ves. sen. 384. 1 Wilson, 264.

u 2 Vern. 614. Sed vide Pan

nell v. Tayler, 1 Turner, 101.
where Lord Eldon says, the de-
cree was against the husband
alone.

vested it in trustees for the purpose of protecting it against her husband. But such a reason does not exist in Travers v. Buckley, for, although the wife was joint administrator with her husband, yet it did not appear that she had ever any part of the assets in her possession, or any separate property, and, therefore, there was nothing on which a decree could attach. In Bell v. Commissary Hyde's Wife," Mrs. Hyde had property distinct from her husband, upon which a decree might act, and which, according to Dubois v. Hole and Wife would have warranted a decree against her alone. But Lord Hardwicke, in Travers v. Buckley, said, that Dubois v. Hole and Wife, was decided, not on the ground of separate property in the wife, but because she had appeared, and had cured the irregularity of the process against her by the appearance. However, no such reason is reported to have been given by the Chancellor in Dubois v. Hole and Wife; on the contrary, his Lordship distinctly assigned his reasons to be, the separate property of the wife in the object of the suit, and the absence of her husband beyond the seas. As to the appearance of Mrs. Hole, although that might have been a good reason for holding the process to be regular, yet it never could have warranted the decree pronounced against her, unless it had been stated in the bill, that she had a separate character, and a separate estate, and if a decree had not been prayed in respect to it. So that the inference to be drawn from Dubois v. Hole and Wife, Bell v. Commissary Hyde's Wife," and Moore v. Meynell, is, that if a bill be filed against husband and wife, praying relief with respect to separate property of the wife, she must appear alone, and there may be a separate decree against her, if her husband be not amenable to the process of the Court; and Travers v. Buckley establishes only this, that if the wife, in any case in which she is sued jointly with her husband, does appear without her husband, that appear

a

v 1 Ves. sen. 384.

w Prec. Chan. 118.

x 2 Vern. 614.

y Ibid,

z Prec. Chan. 328.

a Cited in Dubois v. Hole,

2 Vern. 614.

b 1 Ves. sen. 384.

ance cures the irregularity, which was in the process which issued to enforce such appearance, but that such appearance without any other circumstance would not authorize a decree against her alone. And all these cases united concur in establishing this proposition, that, in a court of equity, separate property in the wife confers a separate character and imposes a separate responsibility.

BOOK IV.

Separate provisions

consist of

rate main

tenance.

CHAPTER I.

OF THE WIFE'S SEPARATE PROVISIONS.

In addition to the interests which a married woman may of married possess for her separate use, and with respect to which she woman, is empowered in a court of equity to act as if she were pinmoney sole, there is another species of property, which she may and sepa- have during the marriage, as independent of her husband as if it were her separate estate, and in the enjoyment of which she will be equally protected. This class consists of two kinds, viz. pinmoney, and separate maintenance, both payable by the husband to his wife by his own agreement, and out of his own property; both capable of being settled before marriage or during the marriage; and neither capable of being disposed of by the wife by a sweeping appointment.b However, these provisions, although resembling each other in these particulars, differ essentially in other respects for pinmoney is payable only during cohabitation, and separate maintenance, as the name imports, only during separation, the former for personal use and private expenditure, the latter for daily subsistence. There is this additional important distinction between pinmoney and separate maintenance, that, if the wife be guilty of adultery, a court of equity will not assist her in the recovery of the

a See Book III.

b Hyde v. Price, 3 Ves, 437.

arrears of the former, while such misconduct will not be any bar to her recovery of the latter.d

Pinmoney is a yearly sum payable by a husband to his Pinmoney payable wife during cohabitation, either in pursuance of a settlement, during coor an agreement for a settlement, before marriage, or allow- habitation. ed by him to her gratuitously, without any previous stipulation. As this allowance is not intended for the procurement of necessaries for the wife, but merely to enable her to indulge in dress, and the ornaments of her person, and that too during cohabitation, it is natural to find that few disputes on this subject have reached our courts of law or equity during the lives of husband and wife. After his death, indeed, the question has often arisen, how far back a court of equity would extend an account of the arrears of pinmoney alleged to be due to the wife against the representatives of the husband, and the rule, almost without exception, is not to go back farther than a year.

maintenance pay

ration.

Separate maintenance from a husband to his wife, is the Separate result of an agreement between them to live apart from cach other, either immediately, or at a future period, for a able dutime only, or permanently. If the separation be intended ring sepato be only temporary, then, if the husband offer to take back his wife, and to maintain her, it puts an end to the agreement, and a court of equity will not enforce the payment of the separate allowance to the wife. But if the separation be intended to be permanent, that is, during life, there, the offer of the husband to cohabit with his wife does not put an end to the contract for a separate maintenance.f And the payment of this allowance, and the performance of the other parts of the contract, are generally secured by deed. As husband and wife are incapable of contracting with each other, and the wife is incapable of contracting with any one, this engagement must be entered into by the husband with a third person, as a trustee on her part. Indeed, Lord Alvanley did, on one occasion, enforce such a contract between husband and wife only,

c 2 Eq. Ab. 156.

d 13 Ves. 439.

e See Chap. II. of this Book.
f See Chap. V. of this Book.

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