C Court will not make a struggle to recover it from him, which proves that equity claims no jurisdiction over even the equitable portion of the wife, and that the only mode by which it assists the wife with respect to it, is by refusing to assist her husband to remove it. The Court observes the same neutrality, where there has been a clandestine marriage with one of its female wards, for there it does not attempt to interfere with the rights that marriage gives to the husband over the property of his wife; but as he has committed a contempt of the authority of the Court, he will not be discharged from the punishment attendant upon it, unless he will make such a settlement as the Court shall think suitable to the circumstances of the case.d But it may be thought, that when a court of equity retains for a wife who has been abandoned or ill-used by her husband, the produce of her fortune to support her, it is a deviation from that rule of conduct which we have stated the Court always prescribes to itself with respect to the equitable property of a married woman; namely, to abstain from the management or settling of it, while, at the same time, it refuses its assistance to the husband to reduce it into his possession; yet, when it is considered that every woman has a right at common law to be maintained by her husband, if the Court applies her money to that purpose, it does only what the husband ought to do, and in so doing, though it interrupts his legal claim, it is by enforcing the performance of a legal duty. tical court wife de ill-treated However, it is not to be supposed that if the wife should Ecclesias have no equitable portion, she is to be altogether without gives aliremedy, for, though the Court of Chancery cannot afford mony to it, yet the spiritual court can; as, if she libel her husband serted or there, and make out a case of cruelty or desertion against by her him, an allowance, called alimony, would be decreed to husband. her, and the payment of it enforced against him by the peculiar process of that jurisdiction. Indeed, Lord Loughborough claimed a similar authority for the Court of c Glaister v. Hewer, 8 Ves, 206. Murray v. Lord Elibank, 10 Ves.90. d See Chap. XI. Book V. Writ of supplicavit for se curity of the peace by the wife against her husband. Court of law may inciden tally enforce a mainte nance for a wife abandoned by her husband. Chancery; for his Lordship said, that "if the wife applies to this Court upon a supplicavit for security of the peace. against her husband, and it is necessary that she should live apart, the Chancellor will allow her separate maintenance as incidental to that." But it is difficult to reconcile this opinion of his Lordship with the nature of the writ of supplicavit, for it is always sued out upon the supposition that husband and wife are to cohabit, as will appear from the language and the object of the writ itself, which recites, that the husband shall find sufficient bail, &c. &c. " that he will well and honestly treat and govern the aforesaid A. (the wife,) and that he will not do, or procure to be done, any damage or ill to her of her body, otherwise than lawfully and reasonably belongs to her husband for the cause of government and chastisement of his wife."% How then can a court of equity award a separate maintenance to a wife, upon a proceeding which she has recourse to, upon the idea that she is to live with her husband. If the busband violate the condition of his recognizance, then he forfeits to the Crown the amount for which the bail was given; but, it is apprehended, that even the forfeiture of his recognizance gives no jurisdiction to the Court of Chancery to separate the husband from the wife, and to give her an allowance out of his property. For the husband's property must have been the fund out of which his Lordship proposed to make the settlement, as, if the wife had a trust property in Court, and had been ill treated, then the supplicavit would not have been wanted to afford the Court the means of giving her subsistence. It seems, too, that at common law, although a separate maintenance cannot be adjudged to a woman on account of her husband's ill treatment of her, yet, if he will not maintain her, it is considered to be a breach of the peace by him; and if articles of the peace be exhibited against him by her, and he enters into a recognizance to keep the peace with her, e Ball v. Montgomery, 2 Ves. jun. 195. f Head v. Head, 3 Atk. 550. 1 Ves. sen. 17. g Fitz. N. B. 238. F. it would be a forfeiture of the recognizance, if he did not maintain her. So that, in this way, a court of law may incidentally enforce a maintenance, though not a separate one, to a married woman, where she is insufficiently provided for by her husband, for, in such a case, she may bind him to the peace, and then he must maintain her, or else forfeit his recognizance. But this is an expedient that must have been seldom, if ever, resorted to, as there is no precedent of such a proceeding to be met with in the books. to a mar man after cease. The preceding equities are administered to the wife Equity adalways in the lifetime of her husband; she has another ministered equity, arising from her property, which is never called ried wointo action until after his decease, and which is produced her husby a transaction of this nature; namely, if the wife have band's depledged her real estate, or have surrendered her own interest in her husband's real estate for the purpose of paying his debts, or of otherwise forwarding his views, or if she have advanced her separate money for the same object, a court of equity will take care to see her reimbursed out of her husband's property, if any shall remain after his creditors have been satisfied.i a All these equities belong to the wife, and are administered to her only. But the husband also has his equity, attaching to and produced by the wife's property; for, if woman, before her marriage, and in contemplation of it, do any act relating to her property, for her own benefit, which abridges the marital rights, this Court will treat the transaction as fraudulent and void, and place the husband in the unrestricted enjoyment of the interest of which she intended to deprive him. However, if she have made such disposition of her property not for her own use, but in the discharge of a bona fide debt, or in the performance of a moral obligation, such as in making a provision for her children by a former husband, the purity of the motive will give validity to the act, and protect it from the legal claims of the husband.j h See the judgment of Lord Chancellor King in Colmer v. Colmer, Mos. 120. i See Chap. XII. Book V. OF 456 CHAP. II. THR WIFE'S EQUITY, AS IT IS ADMINISTERED TO HER "Wife's equity" a rule of long standing. THE equity of securing a provision to a married woman out of her unsettled fortune, has been for a long period administered to her against the husband himself, as an instance in which it was applied is to be found in one of the earliest Chancery reports; that is in Tothill, in the case of Tanfield v. Davenport, where the husband had sued in the Ecclesiastical Court, and Lord Keeper Coventry ordered an injunction to stay the proceedings, till he should make a competent jointure. So also this equity of the wife, as against the husband, was recognized in Micoe v. Powell,b although the facts of the case did not call on the Court to act upon it. There Micoe filed his bill against Powell and his wife, and the trustees of her estate, in which it was stated that the plaintiff's daughter was seised of an estate in lands to the value of 400l. per annum; that the defendant Powell had obtained her clandestinely without the plaintiff's consent, and had made no provision for her, or settlement on her or her children; and that plaintiff was informed that the defendant, Powell, intended to make his wife, (who was an infant,) as soon as she should come of age, to sell her lands and levy a fine of them; and forasmuch as the estate in law of the said lands was vested in trustees, who could not be compelled to transfer their estate, but in this Court, but threatened to do it voluntarily, unless prohibited by order of this Court; therefore, out of the fatherly care of his said daughter, and to the intent that a provision and settlement be made for her, and that he might be relieved in all and singular the premises, he prays process against husband and wife, her two trustees, &c. &c. There was a demurrer to this bill, for want of interest in the plaintiff, which was allowed; but his Lordship said, that "If Mr. Powell had been plaintiff here in Chancery to have the trustees transfer their estate, or for any other favour of the Court, then, indeed, when he had such a hand upon Mr. Powell, he could make him do such things as should be reasonable." In this case of Micoe v. Powell, there is no decision on the wife's right to a provision out of her fortune; there is merely an intimation of the Court as to the relief to which the wife would be entitled under certain circumstances, without any question being raised upon the subject; but the strength of this equity was afterwards fully tried, and its superiority over the legal claims of the husband amply established, in the subsequent case of Milner v. Colmer ;© and, though it would seem, from the two former cases, that the wife's equity had been long and firmly settled as the fixed practice of the Court, we find, in this case, that the husband's legal rights were as warmly defended, and this doctrine as strongly combated, as if it had been a novel encroachment. Even his Lordship (Lord Chancellor King) Wife's expressed much disapprobation of the rule; and although equity reluctantly an order was made on the husband to make proposals for a enforced settlement on his wife, before he was suffered to receive by Lord King. her portion, yet it was made with great reluctance by the Court. In this case, the defendant, Colmer, had married a minor, without the consent of her mother, or of the Court, during the pendency of a bill for an account of the personal estate of the minor's late father, in which there was a decree that one third should go to the widow, according to the custom, and the remaining two thirds to the children. Mrs. Colmer's share amounted to 14,000l., and her husband having applied to the Court for this money, he was sent to the Master to make proposals as to the settlement which he was willing to make on his wife. When his proposal came e 2 P. Wms. 639. |