Where husband and

wife taken

in execu

court refused it on the authory of the preceding case. In like manner, in Wilmot v. Butler and wife, the latter was in custody under a ca. sa. which issued upon the judgment had against both; and on a motion to discharge her, it was refused, the court stating the rule to be, that if a wife be in custody upon mesne process, which issued in an action against her and her husband, she is entitled to her discharge; but that if she be in custody under a ca. sa. which issued against her and her husband, she is not entitled to a discharge, unless it appear that her being in custody is the consequence of some fraud or collusion between the plaintiff and her husband, for that execution must always follow the judgment. And in a late case, Chalk v. Deacon and wife," where the wife was arrested alone on a writ of ca. sa. issued on a judgment against her husband and wife, the court refused to discharge her. It was contended in support of the rule for her discharge, that it is the practice at present to discharge a teme covert, when taken in execution, as well as on mesne process; but the court said, that applications of this kind are in the discretion of the court, who are to exercise it justly according to the peculiar circumstances of the case before them. The same party afterward applied to the Court of King's Bench for a mandamus to the commissioners of the insolvent court, who had refused to discharge her as an insolvent; and the court refused the application, being of opinion with the commissioners, that a married woman, who, with her husband, is in execution for a debt contracted before her marriage, is not entitled to be discharged under the insolvent debtors' act, because she is incapable of executing a warrant of attorney, and complying with the other terms required by that act."

So where the the husband is arrested with his wife, she will not be discharged. In Berriman v. Gilbert and wife," the court refused to discharge the wife, who had been taken in

t Sayer's Rep. 149.

u 6 Moore, 128.

v Ex parte Deacon, 5 Barn. & Ald.

759.

w Barnes, 203.

tion, she will not be dischar

execution with her husband for a debt contracted by her
whilst sole, and it was then said that no instance could be
shown where a married woman had been discharged from ged.
an execution. So in Langstaff v. Rain und Wife, where
the action was for an assault and battery by the defendant's
wife, and a verdict and judgment had for the plaintiff, the
defendants, husband and wife, were both taken in execu-
tion, and the court refused to discharge her.

If wife arrested on

final pro

cess by contri

vance, she charged.

will be dis

There is only one instance in which a married woman has been discharged, as such, where she and her husband have been in custody under an execution. In Lady Cha-ces worth's case, her husband had confessed a judgment against himself and his wife, as for a debt contracted by her whilst sole, whereas it appeared on inquiry that the debt had been incurred during the coverture, and that it had been made the pretext for taking the wife in execution. But it appearing that the husband also had been arrested, the wife was discharged, for the husband being in execution, the wife should be in custody also, even supposing the contract to have been made before marriage. But the court said, that as this matter had been effected by artifice, if it could be shown who were guilty of it, they would wish to punish them. However, the authority of this case has been since denied.2

The summary of the cases on this point of practice is this, if a married woman be sued as a feme sole, she will be discharged from an arrest on mesne process, unless it appears that she has represented herself to be a feme solc, or has done some act amounting to such a representation. But where she has given a warrant of attorney to confess a judgment as a feme sole, she will not be discharged from an execution issued upon that judgment. If a married woman be sued as such jointly with her husband, and be arrested alone on mesne process issued against both, she will be entitled to be discharged from custody, or if she be arrested on similar process with her husband, she will still be dis

x 1 Wils. 149. y 1 Lev. 51.

z Harrison v. Bearcliffe and wife, 2 Str. 1272.

charged; but the husband must remain in custody, until he puts in special bail for both. And, lastly, if a married woman be arrested on final process, issued against husband and wife, either alone or with him, she shall not be discharged, unless there be some collusion between the plaintiff in the suit, and the husband, to detain her in custody.

can Interest of

the

It has been already shown that a married woman
have no property during her coverture, except where her
husband has undergone a civil death. However, this dis-
ability terminates with her husband's life, for so soon as
coverture is at an end, her rights, not only with respect to
her own property, which were dormant during the marriage,
revive and come into being, but she acquires in her new
character of widow, interests in her husband's property,
which she had not before, unless they have been limited or
surrendered by some settlement previous to the marriage.

And, first, with respect to her interest in her own property after her husband's decease. As to the wife's real property, her estates of inheritance and of freehold, which have not been the subject of settlement, they undergo no change by the marriage, and, on the death of the husband, they continue hers, as before it, with the restoration of all those powers of disposition which the coverture had suspended.

The wife's chattels real, that is, her terms for years, not being, like chattlels personal, and absolute to the husband by the marriage, survive to her, unless he have (as he may) disposed of them in his lifetime. And if the husband should aliene part of her term, the remainder will survive to She and her husband may be joint tenants for years, and if she survive, she will necessarily take the entire.d

her.

a Co. Lit. 46 b. 351 a.

b Co. Lit. 46 b. Cro. Eliz. 33.

a

e 1 Roll. Ab. 343.

d 1 Roll. Ab. 349. 2 Com. Dig

Wife takes by survivorship arrears of

rent due on

lease made by

her before marriage, and on leases made of her lands by her and her husband.

Wife takes
by survi-
vorship
her choses

in action.

Wife has by survi

vorship all actions, which she and her husband

The wife shall have also by survivorship, the arrears of rent due under leases made by her of her own lands prior to her marriage. As if she lease for life or years, and marry, she shall have the arrears of rent after her husband's death. And even where husband and wife made a lease for life or years of the wife's lands, if she agree to the lease after her husband's death, she shall have by survivorship the arrears of rent incurred during the coverture. And the arrears of all rents, which became due during the coverture, and of which the husband was seised in right of his wife, whether it be a rent service, charge or seek, shall survive to her.g

The wife shall also have, if she survive, the estates by statute merchant, statute staple, and elegit, of which her husband was seised during the coverture in her right. And by the same right she takes all choses in action, such as bonds, mortgages, and all negotiable securities passed to her previous to, or during her marriage.i

And the surviving wife shall not only have these different kinds of property, as her own, but there will also survive to her all those actions, which husband and wife might have had for injuries done to the property or the person of the wife during the coverture. As if trees be cut on the land had for in- of the wife during the coverture, she may maintain trespass for the injury after her husband's death. So if a battery or other personal tort be committed against a married woman, she may maintain an action for the injury, after her husband's death.k

might have

juries to

her proper

ty or per

son.

of para

Such are the interests of the wife in her own chattels, real phernalia. and personal, and in those rights of action arising from injuries to her property and her person, which survive to her after the death of her husband. It is now to be inquired, what interest she derives from her husband's per