592

Stat. of Mortmain, 9 Geo. II. ch. 36.

ceedings by commission, the latter have for a long time fallen wholly

into disuse.

The modern jurisdiction, so exercised, is now generally treated as a mixed jurisdiction, compounded of the general jurisdiction of the Court of Chancery over trusts, and the prerogative jurisdiction committed to the Chancellor by the sovereign as parens patriæ, he having in that character a general superintending power over public interests where no other person is intrusted with that power (a).

It is proper to observe, a little by anticipation, that it was found necessary in later times to set bounds to charitable donations; for the legis lature, finding that the political ends of the statutes of mortmain were frequently defeated, and the just claims of kindred passed over, by large and improvident dispositions being made by languishing and dying persons, it was enacted by the statute 9 Geo. II., ch. 36, That no manors, lands, or tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal, whatsoever, nor any sum or sums of money, goods, chattels, stocks in the public funds, securities for money, or any other personal estates whatsoever, to be laid out in the purchase of lands, &c., shall be given, granted, aliened, limited, released, transferred, assigned, or appointed, or anywise conveyed or settled to or upon any person or persons, bodies politic or corporate or otherwise, for any estate or interest whatsoever, in trust, or for the benefit of any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor or grantor, including the days of the execution or the death, and enrolled in the Court of Chancery, within six months after its execution; and unless such stocks be transferred in the public books, usually kept for the transfer [*593] of stocks, six calendar months before the death of such donor or grantor, including the days of the transfer and death, and unless the same be made to take effect in possession for the charitable use intended immediately from the making thereof, and be without any power of revocation, reversion, trust, condition, limitation, clause, or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming under him; provided, always, that such limitations, &c. shall not be construed to extend to any purchase or transfer made for valuable consideration. The statute then declares all other gifts, grants, conveyances, transfers, &c., to be null and void, with a proviso that it shall not be construed to extend to the two universities, their colleges (b), and the scholars upon the foundation of the colleges of Eton, Winchester, or Westminster; such exceptions are, however, subject to the proviso, that no college shall, from June 1736, be at liberty to purchase, acquire, receive, take or hold more advowsons than are equal in number to one moiety of the fellows or students upon the respective foundations: and the act further provides, That nothing therein contained shall be construed

(a) Sup. p. 588, 1 Ch. Ca. 157, Corp. of Burford v. Lenthall, 2 Atk. 552; Lord K. Bridgman, 1 Ch. Ca. 157; Lord Somers, Cary v. Bertie, 2 Vern. 343; Attorney-General v. Matthews, 2 Levinz, 167; and see Moggridge v. Thackwell, 7 Ves. 70. 83, where this case is observed upon by Lord

Eldon; 2 Story Eq. 356; and 3 Bla. Comm. 208. 427.

(b) This exception applies only to colleges then established, and to devises for their benefit. See Attorney-General v. Tancred, 1 Eden's Rep. 16; but see also Attor ney-General v. Bowyer, 3 Ves. 728.

to extend to the disposition, grant, or settlement of any estate, real or personal, situate in Scotland. "It is not a little extraordinary," says Mr. Fonblanque, "that an act so distinctly presenting its principle and purpose, should have given rise to so great a number and variety of cases as this act appears to have done. Mr. Highmore has brought them together." Mr. Fonblanque has stated the general result of the cases, to which for the present I beg leave to refer the reader (a). The subject next in order is that of the EQUITABLE RIGHTS OF MARRIED WOMEN according to the doctrines of the Court of Chancery.

DOCTRINES OF THE COURT OF CHANCERY IN REGARD TO MARRIED

WOMEN.

SECTION I.-Introduction—Doctrines of the Common Law and of the Ecclesiastical Courts as to the relation of Husband and Wife.

SECTION II.-Doctrines of the Court of Chancery as to the rights, &c., of Married Women -Trusts of Property for their separate use.

SECTION III-Miscellaneous Doctrines as to Married Persons-Married Women parties to suits in the Court of Chancery.

SECTION I. Introduction-Doctrines of the Common Law and of the Ecclesiastical Courts as to relative state of Husband and Wife.

Ir may be proper to remark that at the Common Law husband and wife have always been treated, with some few exceptions (b), as one person (c); the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated with that of the husband under whose wing and cover she performs everything (d). One of the consequences of this union was, as we have seen, that the wife could not at the common law take anything of the gift of her husband (e); and her legal existence being as it were suspended, she cannot at law bind or affect her rights by contract, however valuable the consideration. (f). By the Roman law husband and wife, unless the marriage were accompanied by the conventio in manum, in which case there was a complete unity of persons, as at the Common Law, were distinct persons; they might have separate estates, and they might have separate rights and interests as regards contracts, debts, and injuries (g).

(a) 2 Fonbl. on Equity, p. 214 et seq. (b) Thus she might pass her interest in land by a fine, though by that means only, 18 Edw. IV. 118, Ellesmere, p. 89; indeed, her rights in real estate generally constitute a qualification of the rule; so by the assent of her husband she might make a will and appoint executors, 4 Hen. VI. &c. C. P. Coop. Append. 524. 526 and 527.

(c) 1 Bla. Comm. 442. "His wife and VOL. I.-36

he be but one person in the law," Litt. §

168.

(d) 1 Bla. Comm. ubi sup.
(e) Sup. p. 456.

(ƒ) Bla. Comm. ubi sup.

(g) V. sup. p. 302-3, and see Mr. Long's article "Marriage, Roman," Dict. of Antiquities. There is an error in Blackstone's reference, Comm. i. 444. The remains of the ancient Roman law as established in

*595 Doctrines of the Court of Chancery as to Married Women.

*The Roman doctrine, as to the separate character of the husband and the wife, has been adopted by the Ecclesiastical Courts, so that a married woman may there sue and be sued without her husband.

SECTION II.-Doctrines of the Court of Chancery as regards the Rights and Property of Married Women.

The protection which the law afforded to the husband and the wife in respect of her individual acts was equally afforded in the Court of Chancery; every act done by a woman during coverture, with the exception. of a will made by the assent of her husband of her personal chattels (which was in her favor), and her acts by matter of record, as by fine, were considered equally void in Chancery as at law (a). Thus in the 7th Edw. IV. it was held by the Chancellor (Nevil, Bishop of Exeter), the judges of the one bench and the other having been called in to assist, that although a married woman had received the purchase money for an estate held by a feoffee to her use, and the feoffee had infeoffed the purchaser at the request of herself and her husband, yet she might, on the death of her husband, recover the value of the estate by subpoena from the feoffee; and that the estate itself might be recovered by the wife from the purchaser, unless he could protect himself by the plea of not having had notice that she was a feme covert (b). It is probable that it was mainly by reason of the interference of the judges that the Court of Chancery adhered to this doctrine (c). It would appear that although a man could not grant his tenements to his wife during coverture, yet that he might create an use in favor of his wife equally as of a stranger; Lord Coke considered it to be clear that such an use would be executed by the Statute of Uses (d), though in ancient times a gift to a stranger for her use was held void, as being against the policy of the law (e).

But the first direct recognition of the wife being capable of separate rights during coverture, distinct from her husband, appears in the instance of the wife living apart under a deed of separation. In the earliest recorded case part of the proceeds of the sale of the real estates which *had belonged to the wife, in the sale of which she had joined, [*596] were on the separation secured in the names of a trustee for her separate maintenance; the wife in her own name instituted a suit against the representative of the trustee for enforcing the trust, the defendant demurred on the ground that the husband had not joined, he was ordered to answer immediately (f).

In the reign of James the First we have notices of the court having entertained jurisdiction to secure for the separate use of a married wo

(a) Y. B. 18 Ed. IV. fo. 11. C. P. Coop. 525; ib. p. 527; but see Toth. 160.

(b) Brooke, Conscience, 13, Y. B. 7 Edw. IV. 14, C. P. C. 527.

(c) Tothill, 7 Jas. I. p. 162, ed. 1671; a case decided on the certificate of the Judges. (d) Co. Litt. 112 a.

(e) Fleta, iii. c. 3; C. P. Coop. 530.

(f) Sanky v. Golding, 22 Eliz. Cary, 124. and see Georges v. Chancie, Tothill, 161; 15 Car. I.

Origin of Jurisdiction as to separate Estate.

596

man property that had been given for her personal maintenance distinct from her husband (a). It would appear that shortly afterwards it became no uncommon thing for a wife to have separate property independent of her husband (b). But at this time an agreement only that property should be at the separate disposal of the wife as against the husband, was not sufficient, the marriage would have extinguished the agreement; it was necessary there should be some legal assurance of the property, binding in law against the husband (c). In one case in the time of Charles I. the court assumed, or at least exercised the jurisdiction of enjoining the husband from suing in the Ecclesiastical Court for a legacy given to his wife till he made a competent jointure (d). It is plain therefore that the capacity of the wife to enjoy property for her separate use, through the medium of a trust, was fully recognized; though she was much at the mercy of her husband; for in a case in the same reign, where a wife by her next friend sought to enforce against her husband a marriage agreement, it was dismissed, because no precedent could be found of a feme covert suing her husband unless they were separated (e). In 1695, in the Chancellorship of Lord Somers, this, as well as many other similar difficulties, had been got over, and from that time it has been competent to the wife, by her next friend, in all cases to file a bill to enforce her equitable rights against her husband as well as others (ƒ).

When the Court of Chancery thus established that the wife might have a separate estate, it clearly violated the laws of property as between husband and wife, but the jurisdiction seems to have accorded with *popular feeling, and it prevailed. After it had been settled that [*597] a wife might enjoy separate estate as a feme sole, the laws of property came to be attached to this new estate, and, as part of such law, the power of alienation belonged to the wife. This power, it may be observed, though in anticipation, was found to be destructive of the security intended for such property, and prohibitions against alienation were introduced; the Court of Chancery here again interfered, and by another violation of the laws of property, supported the validity of such prohibitions in order to secure to the wife the desired protection against the marital rights. This qualification was introduced and established by virtue of the power of the Court of Chancery "to model and qualify an interest in property which it had itself created, without regard to those rules which the law has established for regulating the enjoyment of property in other cases" (g). The power of disposition of real estate by will never attached to the wife's separate estate. In that respect the common law disability was continued. Indeed it would have been a violation of principle to have opened the way to the husband's influence by giving her such permission where not expressly contracted for or bestowed by donor; Femes covert were expressly excepted in the stat. 34

(a) Tothill, p. 158, 21 Jas I. The husband

was an unthrift.

(b) Tothill, 161, 14 Car. I. "A wife hath a stock for her own use," &c. (c) Nelson, C. R. p. 16.

(d) Tothill, 14 Car. I. p. 179.

oe v. Lord Newburgh, 15 Car. I. Tothill, 161, et v. ib. 160.

(f) Drake v. Storr, 2 Freeman, 205.There a bond given to the wife in contemplation of marriage having become void by the subsequent marriage, the court ordered the husband to execute, as he ought to have done originally, a bond to trustees for her. (g) Lord Cottenham, Tullett v. Armstrong, 4 M. & Cr. 390. 405.

597

Miscellaneous Doctrines of the Court of Chancery.

& 35 Hen. VIII. c. 5 (a): However her will of lands made in execution of a power to that effect is good; the disability is a creature of civil policy, and the courts have permitted it to be dispensed with at the pleasure of the contracting or disposing parties through whom the property is derived (b).

An attempt was made in the Court of Chancery to carry the principle of protection given by the common law to the wife to the extent of relieving her from the legal effect of a fine on the ground of duress on the part of her husband, but it was settled that the court could give no relief (c).

The court having held that a wife might have separate estate, it was but just that the court should bind her to the extent of making that estate liable for her debts, and so it has accordingly been settled (d).

[*598] *SECTION III.—Miscellaneous Doctrines as to Married PersonsAs to Married Women parties to suits in the Court of Chancery. Though married women as well as infants were protected, neither coverture nor infancy was permitted to stand in the way of substantial justice; both were bound by a decree made against them (e). In some cases the husband and the wife were ordered to do acts which others had a right to require of them, as to levy a fine (f). The husband in other cases was ordered indirectly to compel his wife to do such acts as justice required, as by binding him in a recognizance that it should be done (g). In others he was directly ordered to compel his wife to do such acts, as to levy a fine (h). The husband could not plead for his wife, she must join in the plea, or plead for herself (i). In some cases she was compelled to answer alone, in respect of matters charged against her, as when her husband was in the galleys (k); but generally unless divorced she could not be sued separately from her husband (1). The next subject to be considered in the order proposed is that of MORTGAGES.

(a) A feme covert could only make a will of personal estate with the assent of her husband; "without it the will of a wife was a void thing," Lord Nottingham, Chiswell v. Blacker, 2 Freeman, 79. Yet it seems to have been held, 15 Car. I., that if separated she could make a will, Toth. 161, ed. 1671. The new Act, 1 Vict. 26, has left the personal disabilities of the wife untouched.

(b) See Jarman on Wills, 33. (c) Cary, p. 6, Doct. & Stud. 33. 154. (d) Lord Thurlow, Hulme v. Tenant. 1 Bro. 21, approved Owen v. Dickinson, 1 Cr. & P. 54. Lord K. Coventry held that a married woman living separate from her husband, was liable to repay a sum of money that she had tortiously seized, and he held that in that case her husband was not liable, Plomer v. Dom. Plomer, 1 Rep. Ch. 37, ed. 1736.

(e) Toth. 159, 173, v. infra, “ infants." (f) Toth. 156; ib. p. 124; 12 Eliz. (g) Toth. 156; 4 & 5 Edw. VI. see 1 Roper's Husband and Wife, 2d ed. p. 545.

(h) Toth. 158, to compel his own wife and another man's wife to levy a fine; et v. ib. 237, 10 Jas. I. The court will now order the wife to do acts such as to produce deeds relating to her separate estate, and will order the husband to permit her to do them. See Cowdery v. Wray, vii. Jur. 988.

(i) Toth. 136, 36 Eliz.; ib. p. 159.
(k) Cary, p. 144, 22 Eliz.; et v. Parn. v.

1 Ch. Ca. 296. At law, a wife may sue and be sued as a feme sole, where the husband has abjured the realm, or is banished. 1 Bla. Comm. 443; see the note, 11th edit. & Qu. and 2 Rop. Husb. & W. 121, 2d ed.

(1) Reg. L. B. 1589, fo. 575.