The opinion of the Court was drawn up by
The questions presented in this case are new with us, and quite important in relation to the effect of a divorce a mensa et thoro, upon the condition and capacity of a married woman, who has obtained a decree of that nature against her husband. Can she maintain an action in her own name only upon any contract made with her before the marriage, and left unexecuted at the time when the divorce takes place ? Can she sue in her own name for any property which she may acquire after the divorce, or for her earnings by business, labor, &c., done during her state of separation ? Can she maintain an action against her husband; should he intermeddle with the1 property so acquired, or should he refuse to execute the decree by which alimony may be allowed to the wife ? In other words, is she to be treated as a feme sole, after such a decree, in all respects, or in any particular limited degree, so as to give her the right to maintain some actions and not others ? Our several statutes providing for such divorces are wholly silent on the subject. Our judicial decisions have touched only the question of enforcing the decree itself in relation to alimony. And the English cases have been confined to the discussion and adjudication of the rights and liabilities of married women separated by agreement iron their husbands by deed, in which a sufficient maintenance has been provided for them according to their rank and degree And here it is remarkable, that a unanimous decision of the whole Court of King’s Bench, in the year 1786, Lord Mansfield and justices dlshliurst, Grose and Buller composing the bench, was entirely overruled' by the unanimous voice of all the judges except Buller, who was absent, in the year 1800. It was settled in the first case, that a married woman living separate and apart from her husband under a settlement by which a competent maintenance was secured to her, was liable as a feme sole for debts incurred by her ; and in the latter case, presenting similar facts, that a plea in abatement of cover *464ture at the time when the debt accrued, was a sufficient answer to the action. The first case above alluded to is that of Corbett v. Poelnitz, 1 T. R. 5 ; the other is that of Marshall v. Rutton, 8 T. R. 545.
There are several intermediate cases in which the Court of King’s Bench, under the chief administration of Lord Kenyon, and the Court of Common Pleas, seem to have been gradually undermining the decision of their celebrated predecessors ; suchas Compton v. Collinson, 1 H. Bl. 350, — Ellah v. Leigh, 5 T. R. 679, and Clayton v. Adams, 6 T. R. 604. In this uncertain state of the law on a subject of universal interest and of frequent recurrence, it was thought necessary to obtain a more solemn adjudication, which was done in the case of Marshall v. Rutton before cited. Thus the law is now clearly and unequivocally settled in England, that while the marriage subsists in law, a separation de facto, however solemnly made and strictly enforced by contract between the parties, viz. the husband and trustees for the wife, although an adequate fund is secured for her maintenance and support, the parties remaining in the realm, the wife can neither sue in her own name nor be sued for debts owing to or incurred by her, but that in either case a plea of coverture is a sufficient defence to the action. The hardship and injustice which might sometimes arise in the case of persons supplying the wite with necessaries, neither she nor her husband being liable af law, is mitigated in England by the power of the court of chancery over all trust funds. But at common law, while the marriage contract subsists, unless the husband is banished or has abjured the realm, the wife cannot be treated as a feme sole, saving however the custom of London, according to which, if a married woman trades by herself without the intermeddling of her husband, she may sue and be sued as a feme sole. Now without doubt the law is the same with us, in relation to the effect of a voluntary separation of husband and wife or the absence of the husband. The wife is still a feme covert and is to be treated as such in all judicial proceedings, for it will not be allowed to parties, by their own act, without, as it may be, any sufficient cause, to destroy the effect of that *465relation which for most important reasons the laws of society have chosen to establish
The common law of England must be taken to be settled by the case of Marshall v. Rutton, not then declared as a new principle, but restored from the changes which great men had incautiously introduced into it. This common law is ours, and therefore in cases similar to those wherein decisions have taken place, we should undoubtedly adopt those decisions as the rule.
But the question which alone affects the present action in regard to the capacity of the plaintiff to sue, appears not to have been settled, and that is, the effect of a divorce a mensa et thoro. Such a divorce does not dissolve the marriage, though it separates the parties and establishes separate interests between them. By our statute the wife, after such a divorce, is not only free from the control of the husband, but all her interest in real estate is restored to her; alimony is allowed her out of the estate of her husband ; and she is left to procure her own maintenance by her own labor, where the husband is unable to afford any alimony ; which is the case in most instances of divorce of this nature. In addition to these burdens she frequently has to support young children, without any means but her own industry. Shall she not maintain an action even against her husband for alimony, which, though able, he may refuse to pay ? May she not sue those who trespass upon her lands, or the tenants who may withhold the rent, or for the earnings of her labor, or the specific articles of property she may have purchased with the savings of her alimony, her rents or the rewards of her labor ? If not, the law, instead of protecting her from the oppression and abuse of power of the husband, has merely released him from an inconvenient connexion, reserving to him the right to deprive her of all comfort and support.1 If she must join him in an action, he may release it; he may receive her rents and discharge her tenants ; he may seize all her necessary articles of furniture and appropriate them to himselt; and he may intercept the little fruits of her industry which are absolutely *466necessary for her support. If the common law allows all this, and there is no relief except by application to a court of equity, the common law is indeed most impotent, and where there is no court of equity, as there is not with us to these purposes, the system is most iniquitous. But it is not so. The common law only prohibits actions by women who have husbands alive, whose rights are not impaired by law but by compact between them, the law recognising no authority to make such compacts. Where the law itself has separated them, and established separate interests and separate property, it acknowledges no such absurdity as to continue the power of the husband over every thing but the person of the wife. No case appears in the English books, and without doubt because the interests of the wife so situated may be taken care of in chancery. In Bac. Abr. Baron and Feme, M, the editor, in the margin, puts the qucere, whether a woman divorced a mensa et thoro may not be sued without her husband ; which is enough to show that until his time there had been no decision to the contrary. In a recently published book, which I trust from the eminence of its author and the merits of the work will soon become of common reference in our courts, (Kent’s Commentaries, vol. 2, p. 136,) the learned author, after tracing the English authorities upon the siroject of liability of married women living separate and having a maintenance, says, “ I should apprehend that the wife could sue, and be sued, without her husband, when the separation between the husband and wife was by the act of the law, and that takes place not only in the case of a divorce a mensa et thoro, but also in the case of imprisonment of the husband as a punishment for crimes. Such a separation may, in this respect, be equivalent to transportation for a limited time; and the sentence which suspended the marital power, suspends the disability of the wife to act for herself, because she cannot have the authority of her husband, and is necessarily deprived of his protection.” So far as this opinion relates to the case of divorce, we fully concur with him, and are satisfied that, although the marriage is not to all purposes dissolved by a divorce a mensa et thoro, it is so tar *467suspended that the wife may maintain her rights by suit, whether for injuries done to her person or property, or in regard to contracts express or implied arising after the divorce, and that she shall not be obliged to join her husband in such suit; and to the same extent she is liable to be sued alone, she being to all legal intents a feme sole in regard to subjects of this nature.1 Such however is not the law of England, it having been recently decided that coverture is a good plea, notwithstanding a divorce a mensa et thoro. Lewis v. Lee, 3 Barn. & Cressw. 291. But the difference in the administration of their law of divorce and ours, and the power of the court of chancery there to protect the suffering party, will sufficiently account for the seeming rigor of their common law on this subject. If the husband is not liable for the debts of the wife after a divorce a mensa, the chief reason for denying her the right to sue alone, fails.
The difficulty then is not in respect to the capacity of the plaintiff in this action to sue, but whether the promissory note which is sued is her property or the property of the husband. The note was made payable to her by consent of her husband, and it was given for the price of real estate belonging to her before the marriage. It is supposed to have been restored to her by the decree of the Court, which, after divorcing her from her husband, directs, “ that all the real and personal estate which came to the husband by his marriage with the plaintiff should be restored to her.”
It is a matter of much regret to find that the statute which gives jurisdiction to the Court, of the subject of divorces, contains no provision for restoration of personal property in the case of divorce a mensa et thoro. It provides that the wife shall be restored to all her lands, tenements and hereditaments, and that she shall have reasonable allowance of alimony out of her husband’s estate, having regard to the personal property which she carried to the husband. Beyond this the Court have no authority to make provision for a suffering wife. The legislature seems to have overlooked the case, which we find often happens, where necessary articles of furniture or other personal property remain in the possession of the husband, and where he may not be able to pay so much alimony as will enable the wife, who is driven from his doors by abusive or cruel conduct, to provide herself with such articles. The decree in regard to the personal property is void, and nothing can be claimed under it.1
It remains therefore only to be inquired, whether the legal effect of the divorce is to deprive the husband of his power over a chose in action which would survive to the wife, in case of his death, if he had not reduced it to possession. The cases of Draper v. Jackson et ux. 16 Mass. R. 480, and Stanwood v. Stanwood et al. 17 Mass. R. 57, show that in case of his death, the security remaining in its present form, it would be the sole property of the wife.2 But we cannot see our way clear to determine that a divorce a mensa et thoro is to have the same effect. The statute has limited the effect of such a divorce. The husband’s property or rights cannot be affected beyond the statute. Supposing the wife to have carried a fortune to1 him in personal property, it cannot be reached, except indirectly through alimony. By the marriage he acquired a right over all her personal property and choses in action. The latter he may reduce to possession without her consent. The divorce is only a legal separation terminable at the will of the parties, the marriage continuing-in regard to every thing not necessarily withdrawn from its operation by the divorce. His power over the note sued is not extinguished: By the common law, if there be a divorce a mensa et thoro, and afterwards a legacy given to the wife, the husband may release it. Bac. Abr. Baron and Feme, D ; 1 Rol. Abr. 343 ; Stephens v. Totty, Cro. Eliz. 908. This shows that the marital power over the property of the *468wife is not impaired by the divorce alone. It is only where t^ie consequence of the divorce is a separation of prop erty, that he is restrained from the exercise of his maritat power. Upon the marriage choses in action as well as personal property go to the husband. It is only where he signifies his assent by leaving them uncalled for and unchanged until his death, that the property of the wife is restored The legislature seems to have contemplated cases like the present, 'and provided a remedy, though an ineffectual one In decreeing alimony the Court is to have regard to the per sonal property which came to the husband by the marriage, that is, may enlarge or diminish it according to the amount of that property. And this is the only legal way in which we can afford relief in the present instance, it being still in the power of the Court, on petition therefor, to increase the alimony ;1 which was probably, from the mistake in the decree, graduated in some measure by the supposed fact, that all the wife’s personal property at the marriage, as well as debts due to her or arising out of the sale of her property, would become hers.
The plaintiff therefore must be nonsuited.