Act of March 17, 1841, Acts 1840-41, ch. 71, p. 78-79. suits; and the same time shall be allowed to absent defendants, to set aside any such decree, as is allowed in other cases; and all acts and parts of acts coming within the purview of this act, shall be, and the same are hereby repealed. Dewi Noty 184) 2. 3. See ante p. 288-9 The following is taken chiefly from Mr. Butler's Note [304,] to Co. Litt. [351 a]. On the interest which the husband takes in the chattels real and things in action of his wife: 1st, where the husband survives his wife-By the law of Virginia, (see ante, 394, No. 7,) a husband has the right to the administration of his wife's estate; and he may recover and enjoy the same exempt from the obligation of the statute of distribution. (Ante, p. 281, No. 22.) Upon the construction of the analogous statute of England, on this subject, it has been held, that the husband may administer to his deceased wife, and that he is entitled for his own benefit to all her chattels real, things in action, trusts, and every other species of personal property, whether actually vested in her and reduced into possession, or contingent, or recoverable only by action or suit. Goodwin v. Taylor, 2 Wash. 74, Roper on B. & F. 203. And that the representative of the husband is entitled as much to this species of his wife's property, as to any other; that the right of administration follows the right of the estate, and ought, in case of the husband's death, after the wife, to be granted to the next of kin of the husband; (see Mr. Hargrave's Law Tracts, 475,) and if administration de bonis non of the wife is obtained by any third person, he is a trustee for the representative of the husband. Squib v. Wyn, 1 Peere Wms. 378; Cart v. Rees, cited 381. These principles have been frequently sanctioned by the court of appeals of Virginia. Cutchin v. Wilkinson, 1 Call, 1; Hendren v. Colgin, 4 Munf. 231. See Templeman v. Fauntleroy, 3 Rand. 434. The administrator of a husband, who survives his wife, and died, without taking out administration of her effects, cannot recover her choses in action. For that purpose administration must be taken out to the wife: The question being, who has the right to sue for the property, and not who is entitled to it. Betts adm'r v. Kimpton, 2 Barn. & Adolph. 273. See Whitaker v. Whitaker, 6 Johns. R. 112, 117-18. A feme sole, being entitled to slaves in remainder or reversion, and afterwards marrying, and dying before the determination of the particular estate, the right vests in the husband. The president [Pendleton] stated, that this was the constant decision of the old general court from the year 1753, to the revolution, and has since been confirmed in this court in the cases of Sneed v. Drummond, [since reported in 2 Call, 491,] and Hord v. Upshaw, that it had become a fixed and settled rule of property. Dade v. Alexander, 1 Wash. 30. See Upshaw v. Upshaw & al. 2 H. & M. 381; Taliaferro v. Burwell, 4 Call, 321; Wade v. Boxley, 5 Leigh, 442. With respect to such part of the wife's personalty as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interest, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture; for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representatives will be entitled to it. Roll. Abr. 342, 350; Moor. 452; 2 Vent. 141. The property must be reduced into possession by the husband as husband, and not as executor, Wallace et ux. v. Taliaferro et ux. 2 Call, 447; or, trustee, Baker v. Hall, 12 Ves. jun. 497; Wall v. Tomlinson, 16 Ves. jun. 413. See Blount v. Bestland, 5 Ves. jun. 515; Wildman v. Wildman, 9 Ves. jun. 174; Nash v. Nash, 1 Madd. R. 133. A legacy, until it is recovered, is a chose in action, and the marital right of the husband to his wife's legacy does not attach, until it is reduced into possession. He may sue for it, and reduce it into possession, but so long as it continues a chose in action, it is the property of the wife. And a relinquishment by the husband of his marital right to the wife, is valid as to his creditors; and a court of equity will not interpose its authority to compel the husband to reduce the legacy into his possession, for the purpose of subjecting it to their claims: but will sustain a bill by the feme, suing by her next friend, to recover the legacy bequeathed to her, and so relinquished by her husband. Gallego v. Gallego's ex'r, 2 Brock. R. 285; and see Dennison v. Nigh, 2 Watts's R. Penn. 90; Harwood v. Fisher, 1 Younge & Collyer, 110. His disposing of it to another for valuable consideration, is the same as reducing it into his own possession, whether the interest vested in the wife before or after coverture.-Ld. Carteret v. Paschal, 3 Peere Wms. 197, 199; Bates v. Dandy, 2 Atk. 206. This assignment for valuable consideration passes the right of property free from the wife's contingent right of survivorship. (See Purdew v. Jackson, 1 Russell's Ch. Rep. 1-71, (1823-24,) in which it was decreed, after an elaborate discussion and most able review of the law and authorities by Sir Tho. Plumer, M. Rolls, that where the wife has an interest in reversion or remainder in a personal chattel, expectant on the death of another person, and the husband assigns this interest for valuable consideration, and dies before the denation of the life estate, the right of the surviving wife is not barred. Honner v. Morton, 3 Russell, 65, arg'd.) Though (according to the English practice) not from the wife's equity for a reasonable provision for her support. See Pryor v. Hill, 4 Bro. Ch. R. 138; Like v. Beresford, 3 Ves. jun. 506; Burnet v. Kinnerton, 2 Vern. 401, and Garforth v. Bradley, 2 Ves. sen. 675; Johnson v. Johnson, 1 Jacob & Walker, 452, 456; Udall v. Kenney, 3 Cowen, 590, (in error.) This qualification has not been as yet, ingrafted in the practice of Virginia. See Lyons, J. in Wallace et ux. v. Taliaferro et ux. 2 Call, 478; Taliaferro v. Taliaferro, 4 Call, 93. It should seem that the husband's power of disposition over his wife's contingent personal estate can extend only to such part as he may possibly become possessed of during the marriage, [Dalbiac v. Dalbiac, 16 Ves. jun. 122,] and not to any part of her estate which depends upon a contingency that cannot possibly happen during his life; as if a lease be made to the husband and wife during their lives, with remainder to the survivor, and the husband disposes of the term and dies, the disposition will not bar the wife; for during the coverture, she had a mere possibility only. 1 Roll. Abr. 343, pl. 15; Lane, 54, 55; Ch. Ca. 225; 1 Vern. 7, 18; 2 Vern. 270; Eq. Ca. Ab. 58; Pre. Ch. 519; Hutt. 17. With respect to a decree, judgment, order, or award, in favour of the husband, as to money to which he was entitled in right of his wife, it seems to be a settled rule, that if he sues alone and recovers, the property vests in him by the recovery, and is so changed as to take away the right of survivorship in the wife, but if the suit was in their joint names, the wife, as survivor, would take the benefit of the recovery. Per Kent, Ch. in Schuyler et al. v. Hoyle et ux. 5 Johns. Ch. R. 210, relying on Oglander v. Baston, 1 Vern. 396; Nanny v. Martin, 1 Ch. Cas. 27; Heygate v. Annesley, 3 Bro. Ch. R. 362; Hooe v. Woulfe, 2 Brod. & Bing. 429; 1 Roper's B. & F. 212. A bill by husband and wife, is the husband's suit only, and the wife is joined for conformity, to be bound only so far as in justice she ought to be bound. When the rights of a wife appear clearly in the record, it is the duty of the court, ex officio, to protect her against any injurious effects arising from the acts or admissions of her husband, whether the point be made in the pleadings or not. Dandridge et al. v. Minge, 4 Rand. 397; Pierce v. Thorneby, 2 Simons' R. 167. If the husband be obliged to resort to a court of equity to recover the choses in ac tion of the wife, or any property which he cannot recover without the assistance of the wife, the court (in England) will not interfere unless he will submit to dispense equity before it be administered to him: or, in other words, equity will not act on his be half, unless he submit to make a competent settlement on his wife, when no settlement has been made. Milner v. Colmer, 2 Peere Wms. 638; Adams v. Pierce, 3 Peere Wms. 11; Brown et ux. v. Elton, Ib. 202. But if the wife consent in court, or being abroad, before proper commissioners there, that the husband shall receive her fortune, he will be ordered payment of it accordingly. Minet v. Hyde, 2 Bro. Ch. R. 663; Parsons v. Dunne, 2 Ves. sen. 60. The wife may file a bill to enforce a settlement. Eubank v. Montolieu, 5 Ves. jun. 737. The equity of the wife to compel the husband to make a settlement, is merely personal; so that, if he survive his wife, the children, though unprovided for by settlement, cannot oblige him to make provision for them out of it. Scriven v. Tapley, 2 Eden, 337, Amb. 509, S. C., and Lloyd v. Williams, 1 Mad. R. 450. Although the equity of the wife does not survive to her children, a settlement made under the direction of the court ought to provide for the children, as well as for the mother. Johnson v. Johnson, 1 Jacob & Walker, 459. What proportion of the fund should be allowed her? See Beresford v. Hobson, 1 Madd. R. 363. This dispensation of equity by the husband in favour of his wife-has never been exacted by the courts in Virginia. See Wickham, arg. in Bannister's ex'rs v. Shore, 1 Wash. 176. On the subject of this note the following remarks were made, in the recent case of Gregory's adm'r v. Marks's adm'r, (March 17, 1823,) 1 Randolph, 355. By Green, J.: If the rule of the English chancery (founded upon the mere practice of the court,) could be considered as the law of Virginia, (as to which I give no opinion,) to wit, that a court of equity will not assist a husband to get possession of his wife's equitable interests, unless, upon his making a reasonable settlement upon his wife, &c. The English decisions are to this effect: That if, before suit brought, the trustee pays or delivers to the husband, as husband, the wife's equitable fund, the court cannot reclaim it, or subject it in the hands of the husband, or his assignee, to the wife's equity. If the husband, or his assignee, cannot obtain the fund, without suit, then the wife's equity attaches upon the property; the extent of which equity depends entirely upon the circumstances of the case, and may not exist at all; as, if the husband had already made an equivalent provision for the wife, and if the trustee puts the husband, as husband, or his assignee, in possession of the fund pending the suit, the wife's equity fol lows the property into the hands of the husband, or his assignee, &c. The possession of the husband to give him a title, must be as husband, and not as trustee or executor, &c. p. 372. By Coalter, J.: The courts of equity in England have adopted a course of decision in regard to the equitable interests of femes covert, by directing settlements to be made by the husband, which, as yet, have never been acted upon by our courts. Whether they ever will be, is not for me to say at present; if it is, or may be a legitimate and proper course of decision, we ought to do nothing that may impair itp. 385. This (the English) rule has never been recognized, so far as we are informed, in the courts of Virginia, but it has never been denied, and we can conceive no principle on which it should be denied. That those who ask equity should do equity, is a fundamental rule of that court, which enters into, and mingles with, all its decisions; and that the property of a married woman should not be taken from her, without making some provision for her, is as equitable in Virginia as elsewhere. Pr. C. J. Marshall, in Gallego v. Gallego's ex'or, 2 Brock. R. 288. See Atherley on Marr. Set. 301, &c. Deeds executed by a woman immediately before her marriage, giving away her property, without knowledge of her intended husband, are fraudulent as to the husband. Waller v. Armistead's adm'r, 2 Leigh, 11; Goddard v. Snow, 1 Russell, 485; Linker v. Smith, 4 Wash. C. C. Rep. 224. St. George v. Wake, 1 Mylne & Keene, 610, 1 Coop. Sel. Cas. 129, (August 3, 1833,) in which the principle and its qualifications are elaborately considered by Ld. Ch. Brougham. A feme covert, quoad property settled to her separate use, is a feme sole, and has a right to dispose of all her separate personal estate, and the profits of her separate real, in same manner as if she were feme sole, unless her powers of alienation be restrained by the instrument creating the separate estate. Vizonneau v. Pegram et al. 2 Leigh, 183; West v. West's ex'ors, 3 Rand. 373; Haig v. Swiney, 1 Sim. & Stuart, 487; Barton v. Briscoe, 1 Jacob, 603; Woodmeston v. Walker, 2 Rus. & Mylne, 197; Jones v. Salter, 2 Rus. & Mylne, 208; see 3 Johns. C. R. 77; 17 Johns. 548. By deed of marriage settlement, executed before marriage, the husband conveys real estate to trustee to use of wife for life, and on trust to permit the wife to take the rents and profits, during the coverture, to her sole and separate use, in full satisfaction of all rights of dower; the husband, during the coverture, receives all the profits, and applies them to his own use, though the wife frequently demands them, and he acknowledges they are due to her, and promises her they shall be paid; but he dies without paying them: on a bill by the wife and her trustee against the husband's administrator: Held, she is entitled to an account of the rents received by the husband, in his lifetime, and a decree for the amount thereof, out of the husband's estate. Roper et al. v. Wren, adm'r, 6 Leigh, 38. This case distinguished from Moore's ex'x v. Ferguson, 2 Munf. 421; and see Thrupp v. Harman, 3 Mynle & K. 513; see Williamson v. Beckhorn, 8 Leigh, 20. Devise of lands to trustees, on trust to pay the rents and profits to J. H. for life; but if he should attempt to assign the same, or should commit an act of bankruptcy, or become insolvent, then on trust to pay thereout to the wife of J. H. an annuity of £100. during his life, and after his decease, an annuity of £30. during her widowhood, and on certain other trusts as to the residue for the children of the marriage: Held, that the annuity of £100. was not the separate estate of the wife, but passed by the husband's assignment to a purchaser for value. Stanton v. Hall, 2 Rus. & Mylne, 175, and authorities cited; and see Tyler v. Lake, 4 Simon, 144, 2 Rus. & Mylne, 183; Massey v. Parker, 2 Mylne & Keene, 174; Kensington v. Dollond, 2 Mylne & Keene, 184. On this subject, see West v. West's ex'ors, 3 Rand. 373; Lumb v. Milnes, 5 Ves. jun. 517; Wills v. Sayers, 4 Madd. R. 409; Roberts v. Spicer, ex'or, 5 Madd. R. 491; Jamison v. Brady et ux. 6 Serg. & Raw. 466; Lewis v. Adams, 6 Leigh, 320; Anderson v. Anderson, 2 Mylne & Keene, 427. To debt on bond, defendant pleaded that she was feme covert at the time the bond was executed; replication that defendant's husband had abjured the commonwealth, and was not then or now a citizen thereof; general demurrer; dem. sustained. Branch v. Bowman, 2 Leigh, 170. To plea of coverture plaintiff replied, that before the cause of action accrued the defendant's husband became bankrupt, absconded without appearing to his commission, and continued to reside in foreign parts: demurrer, replication held ill. Williamson et al. v. Dawes, 9 Bing. 292, 23 C, L. R. 280. 1. § 1. [When any person owning(a) lands on any water course,(b) and desiring to build a water grist mill, or other machine or engine, useful to the public on such lands, (3) and to supply the same with water, by cutting a canal or race through lands lying above or below on the same side of such water course, and by drawing the water therefrom, into such canal, either without a dam across the stream, or with such dam only, as will not raise the water above its natural level; or having a mill or other engine useful to the public, on such land, and desiring in like manner to supply the same with water by a canal, and not having the fee simple property in the lands through which he would cut his canal, or against which he would make the abutments of his dam; he shall make application(1) for a writ of ad quod damnum, to the court of the county wherein the greater part of the lands, proposed for the canal and abutments, may lie; and such writ shall be awarded to him, in the manner and upon the conditions [herein after prescribed]: Provided, however, That no such writ of ad quod damnum (a) It seems that the possessor, the visible owner, will satisfy the meaning of the law, leaving any person claiming title, to pursue the legal remedy for asserting it. In this procedure the ownership is supposed. Wood v. Boughan, 1 Call, 329, 331-2; see Wilkinson v. Mayo, 3 H. & M. 565. Anthony et al. v. Lawhorne, 1 Leigh, 1L. owning lands on both sides of a stream, asked leave of court to build a mill upon, and dam across it; it was found by inquest, on an ad quod damnum, that lands in the possession of A. of the value of thirty-five dollars would be overflowed; the court, on a hearing, being of opinion that these lands belonged not to A. but to L. granted L. leave to build his dam, without paying any damages to A. Held, error: for the right in the land could not be thus collaterally tried. In such case, leave should be granted, only on condition, that L. paid A. the damages assessed by the jury; and L. might build his dam, at his peril, without paying them, and then defend A.'s action against him, on the ground that the lands overflowed are his own, and thus put the title directly in issue. (b) In this case, the applicant owning lands only on one side the stream, it should be stated on the record, that the bed of the river is in himself, or in the commonwealth. Richards v. Hoome, 2 Wash. 36; and see Wroe v. Harris, Ibid. 128, and post. (j.) (3) See Stokes et al. v. The Upper Appomattox Company, 3 Leigh, 318. (1) This application may be ore tenus. Mead et al. v. Haynes, 3 Rand. 33. It is necessary to state in the petition for a mill on navigable rivers, that the bed is in the commonwealth. If the beds of all navigable rivers belonged to the commonwealth, it would be sufficient to state in the petition, that the land proposed as the site of the mill, adjoined such river; but they do not. Martin v. Beverley et al. 5 Call, 444. See Mead et al. v. Haynes, 3 Rand. 33, where it was decided that a petition for leave to build a mill, where the bed of the Act of March 2, 1819-January 1, 1820. 1826, ch. 29, Ses. Acts 1825-6, p. 32. Ses. Acts, ch. 78, p. 96. R. C. ch. 235. Amended by act of March 2, shall be awarded, unless the owner of lands(d) on the said water course, between the points at which the water is proposed to be withdrawn from the stream, and that at which it will be returned thereto, shall have previous notice(c) of the application therefor, as follows, that is to say: if such owner live within the county in which his land lies, or have an agent therein, he or his agent shall have ten days previous notice; if he lives not within the county and have no agent therein, then the applicant may either serve him with personal notice, ten days prior to the application, or he may advertise his intended application, on the door of the courthouse of the county, on the first day of two terms next preceding, and for four weeks successively in some newspaper, such as the court of the county shall have described; infant owners shall have like notice by their guardians, and married women by their husbands. Act of Mar. 2, 1826, c. 29. The court shall thereupon order their clerk to issue such writ, to be directed to the sheriff, commanding him(e) to summon and impannel twelve fit persons, to meet upon the lands so proposed for the abutment [and for a canal or race](2) on a certain day, to be named by the court and inserted in the said writ, of which notice shall be given by the sheriff to the proprietor or his agent, as before directed, if neither of them were present in court at the time of the order made. Sept. 1667, act 4, 2 Stat. Larg. 260; Oct. 1705, c. 41, 3 Stat. Larg. 401; Feb. 1745, c. 11, 5 S. L. 359; Oct. 1748, c, 26, 6 Stat. Larg. 55; Oct. 1785, c. 82, 12 Stat. Larg. 187; Dec. 1792, c. 105, R. C.; Jan. 1807, c. 100, ed. 1808. [Provided, That nothing herein contained, shall be so construed as to authorize any person, by means of any such canal, to draw the water from any mill pond existing at the time of application for such canal, nor in any other way to conflict with any vested right in any water works erected on any stream. Act of March 2, 1826, c. 29, § 8.] [The court granting the leave may lay the party applying for the same, under such terms and conditions as in the exercise of a sound discretion it may think proper, and shall reserve leave to the proprietor of the land through which the said race or canal shall pass, to cross the same with such fencing and bridges, and to erect such water gates as he may, from time to time, deem necessary, not obstructing the passage of the water to the mill, or other engine, to which it is proposed to be conducted; and the party applying for leave to cut the said canal shall become seized of the land so located for that purpose in fee simple, subject to the terms, conditions and rights, so prescribed and reserved: Provided always, That nothing herein contained shall be so construed, as in any manner to infringe or impair the rights and immunities of the public, now existing in the navigation of any stream or water course now navigated, or which hereafter may be necessary for navigation by the public. Act of Jan. 4, 1834, Ses. Acts 1833-4, c. 78, p. 96.] 2. § 2. [The freeholders summoned by the sheriff, shall be charged by him impartially, and to the best of their skill and judgment, to view the said lands stream belongs in part to the petitioner, will be sufficient, on shewing that fact, although the petition itself does not state it, but on the contrary, states that the bed of the stream belongs to the commonwealth. (d) See post. note (i). (c) It should appear affirmatively that the party had ten days previous notice of the motion for the writ of ad quod damnum: It seems, that if it had appeared by the record, that the party appeared and contested the motion on the merits, he could not after wards have availed himself of the want of notice to defeat the order. Bernard v. Brewer, 2 Wash. 76. (e) This writ may be executed by the deputy sheriff. Wroe v. Harris, 2 Wash. 126; Noel v. Sale, 1 Call, 495; and see C. J. Kent's op. in Tillotson v. Cheetham, 2 Johns. R. 70-73. (2) The law as it formerly stood gave no power to condemn land for å tail-race. Hunter v. Coalter, 4 Rand. 58. a |