3. But in some cases, where the wife is the party grieved, she may be a witness against her husband; as in demanding surety of the peace; in the case of a forcible abduction and marriage; where the husband was accessory to a rape on his wife, &c. See titles LVIDENCE, SURETY FOR THE PEACE, and RAPE.

4. In all cases where the crime is a violence done to the person of the other, the husband may be evidence against the wife, and the wife against the husband. This was held by all the judges in the case of Jaggur, who was convicted upon the evidence of his wife of an attempt to poison her. Christian's note (20) to 1 Bl. Com, 443.

5. After appearance and judgment against a woman as a feme sole, she shall not bring a writ of error, and plead that she was married at the time of her appearance See Stra. 811.

6. And the court said, that it was never allowed to abate the plaintiff's writ by the act of the defendant. Plaintiffs would be in a fine condition, if, after they have arrested a woman, she shall be allowed to overthrow their proceedings by a subsequent marriage. Ibid.

7 A married woman may be indicted alone, for a felony committed by her. See 1 Hawk. 2, 3. \ H. H. 47. Dalt c. 157. 1 H. H. 516. 8. A wife may be indicted together with her husband for keeping a bawdy house. 1 Hawk. 2.

9 Where a married woman buys things necessary for her apparel, diet, &c. without her husband's consent, it shall bind him. See 1 Sid. 120. Alleyn 61. 1 Bl. Com. 442. 1 Selw. N. P 230.

10. If the husband forbid particular persons to trust her, he shall not be chargeable; but a general prohibition not to trust her, as by putting her in a gazette, or the like, doth not amount to legal notice. I Vent. 42. Wood's Inst. 61.

11. If the wife voluntarily leave her husband, and live with an adulterer, the husband is not chargeable with her contracts, even though the person who trusted her had no notice of the elopement. See Stra. 647, 706, 875. 1 Selw N. P. 232.

12. But if, after the elopement, the wife returns and lives with her husband, and he turns her away without further provocation, he is liable for her debts. Stra. 1214.

13. On a judgment against husband and wife, both may be taken in See Stra. 1167, 1237. 1 Wils. 149.

execution.

But the authorities on the above point seem contradictory. See 1 Lev. 51. 2 Stra. (Nolan's edit.) 1167. note (1) and the cases there cited.

14. If the wife be in custody on mesne process, she shall be discharged, on filing common bail, if her coverture clearly appears. Ibid. and 2 W. Bl. Rep 720. 1 Term Rep. 486.

15. By the marriage, those chattels which formerly belonged to the wife, are by act of law vested in the husband, with the same degree of property, and with the same powers, as the wife, when sole, had over them. 2 Bl. Com. 433.

16. But, in a real estate, he only gains a title to the rents and profits during coverture; for that, depending on feodal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him; unless by the birth of a child he becomes tenant for life by the curtesy, Ibid.

17. But though the sole and absolute property of the chattel interests of the wife vests in the husband, yet he must reduce them into possession, by exercising some act of ownership over them; otherwise they will remain to the wife, or her representatives, after the coverture is determined. Ibid.

18. A chattel real, however, vests in the husband, not absolutely, but sub modo. As in case of a lease for years, the husband shall receive the rents, and may, if he pleases, sell or otherwise dispose of it during the coverture; it is liable to execution for his debts, and if he survives his wife, it is to all intents and purposes his own. Yet, if he has made no disposition of it in his life time, and dies before his wife, he cannot dispose of it by his will, nor shall it go to his executors; but the wife shall remain in her ancient possession. 2 Bl. Com. 434.

19. So, of choses in action, as debts upon bond, contracts, and the like; these the husband may make his absolute property, by reducing them into possession, by receiving or recovering them at law. But, if he dies before he reduces them into possession, they shall survive to the wife.

Ibid.

20. But the husband is entitled to be the administrator of his wife; and may, in that capacity, recover such things in action as became due to her before or during coverture. 2 Bl. Com. 435. 1 Rev. Code, ch. 92, sect. 28, p. 164.

21. And the husband is not bound to make distribution of the personal estate of his wife dying intestate. Ibid. sect. 27, p. 164.

22. And if the husband dies before administration is granted to him, or he has recovered his wife's property, the right to administration passes to his personal representative, and not to the wife's next of kin. Christian's note (2) to 2 Bl. Com. 435. 1 P. Wms. 378. Co. Lit. 351. Butler's note.

23. As to the wife's paraphernalia, or jewels, and necessary wearing apparel, and how far they may be disposed of by the husband, or are liable to debts. See 2 Bl. Com. 436. 3 Atk. 394. 1. P. Wms. 730. 2 Atk. 642.

24. If the husband assigns the wife's choses in action, for a valuable consideration, and she survives, she is only bound to the amount of the consideration, and the residue survives to her. 2 Atk. 207. 1 P. Wms. (Cox's edit.) 381, note (1).

25. But if the husband, before marriage, makes a settlement on the wife in consideration of her fortune, the representative of the husband will be entitled to all her things in action (3 P. Wms. 199.) but if it be in consideration of part of the estate only, the residue not reduced into possession will survive to the wife: and where there is a settlement made equivalent to the wife's fortune, though no mention be made of her personal estate, the husband's representative will be entitled to the whole. Christian's note (1) to 2 Bl. Com. 433. Co. Lit. 352. Butler's note.

26. If the husband cannot recover the choses in action of his wife, but by the assistance of a court of equity, the court, upon the principle, that he who seeks equity must do equity, will not assist him in recovering the property, unless he either has made a previous provision for her, or agrees to do it out of the estate prayed for; or unless the

wife appears personally in court, and consents to the property being 603 given to him. 2 Ves, 669. 2 Bl. Com. 433. Christian's note.

27. But the court will not direct the fortune in all cases to be paid to the husband, though the wife appears to consent, where no previous provision whatever is made for her. 2 Ves. 579. 2 Bl. Com. 433. Christian's note.

28. And it is determined the wife shall have the same relief, under a general assignment by the husband of his estate, for the benefit of creditors. (4 Bro. Ch. Ca 139. 2 Bl. Com. 433. Christian's note.) Nor is there any distinction made between an assignee by contract, and by operation of law. 4 Bro, Ch. Ca. 326. 2 Ves, jr. 680. 2 Bl. Cam. 433. Christian's note.

29. But if the wife's fortune is paid to the husband, or he can receive it without applying to a court of equity, then it can give no relief to the wife. 2 Atk. 420. Co. Lit, 351. Butler's note.

2 Bl. Com. 433. Christian's note.

1 Fonb. 304.

30. The husband is liable to the debts of his wife, contracted by her before the coverture, and the husband and wife may be sued for such debts during the coverture. (And they must be joined. 7 Term Rep. 348.) But if these debts are not recovered against the husband and wife, in the life time of the wife, the husband cannot be charged for them, either at law or in equity, after the death of the wife.

N. P. 228, 229.

1 Selw.

31. As on one hand, the husband is by law liable, during the coverture, to all debts contracted by the wife, while sole, whatever their amount may be, although she did not bring him a portion of one shilling; so on the other hand, if such debts are not recovered during the coverture, the husband as such is not chargeable, let the fortune he received with his wife be ever so great. 1 Selw. N. P. 229. 3 P. Wms. Ca. Temp. Talb. 173.

409.

32. But if there be any part of the wife's personal property, which the husband did not reduce into his possession before her death, which he must afterwards recover as her administrator, he will be liable to the extent of the value of that property to pay his wife's debts, while sole, which remained undischarged during the coverture. 1 P. Wms. 468. 1 Bl. Com. 443. Christian's note (18). 3 P. Wms. 409. Temp. Talb. 173.

Ca.

33. During cohabitation the law will presume the assent of the husband to all contracts made by the wife for necessaries, and the misconduct and even adultery of the wife during that period will not destroy the presumption. The same law is, where the husband deserts his wife, or turns her away without any reasonable ground, or compels her by ill usage or severity to leave him; in all which cases he gives the wife a general credit. 1 Selw. N. P. 230.

34. If the husband turn his wife out of doors, though he advertises her, and cautions all persons not to trust her, or if he even gave particular notice to individuals not to give her credit, still he would be liable for necessaries furnished to her; for the law has said, that where a man turns his wife out of doors, he sends with her credit for her reasonable expences. Per Ld. Kenyon, in Harris v. Morris. 4'Esp. Rep.

42.

35. And if a man will not receive his wife into his house, he turns her out of doors; and if he does so, he sends with her credit for her reasonable expences. (Per Ld. Eldon, Rawlyn's v. Vandyke. 3'Esp. Rp. 250. (Day's edit.) where the leading cases relative to the husband's liability are collected with the usual accuracy of that laborious and learned editor.

36. So, where the wife's situation in her husband's house is rendered unsafe from his cruelty or ill treatment, it has been ruled to be equivalent to a turning her out of doors; and the husband held liable for necessaries furnished to her under such circumstances. Per Ld. Kenyon, in Hodges v. Hodges. 1'Esp. Rep. 441.

37. If the husband gives express notice to a tradesman not to trust his wife, he shall not be charged; and if a tradesman has notice of a separate maintenance being allowed to the wife, that, according to Holt, chief justice, shall be notice of dissent on the part of the husband, and he shall not be charged; but where the demand is for necessaries, it is incumbent on the husband to shew that the tradesman had notice of the separate maintenance. Per Ld Eldon, in Rawlyn's v. Vandyke 3'Esp. Rep. 250

38. A feme covert (or married woman) having a separate estate, may, in a court of equity, be sued as a feme sole, and be proceeded against without her husband; for. in respect of her separate estate, she is looked upon as a feme sole. 2 Vern. 614. 1 Bl. Com. 444. Christian's note (21).

39 And in a court of equity, husband and wife are looked upon as two distinct persons, and therefore a wife by her prochien amy (or next friend) may sue her own husband. 3 P. Wms. (Cox's edit.) 39. 1 Bl Com. 444. Christian's note (21).

40. Where the husband has abjured the country, or is banished, it has long been held, that the wife might sue, or be sued, as a feme sole. (1 Bl. Com 443.) And the same principle was for some time extended to cases where the wife had a separate maintenance from the husband, and had separated from him. (1 Term Rep. 5.) But it has since been solemnly determined, that a feme covert cannot bring an action or be impleaded as a feme sole, while the relation of marriage subsists, and she and her husband are living in the country, notwithstanding she lives separately from her husband, and has a separate maintenance secured by deed. 8 Term Rep. 545. Selw. N. P. 236. 1 Bl. Com. 443. Christian's note (19).

41. So, where the husband is an alien, who has deserted the country, leaving his wife to act as a feme sole, the wife may be charged as a feme sole for contracts made after such desertion. 1 Selw. N. P. 239. 2 'Esp. Rep. 554, 587. 1 Bos. & Pull. 357. 2 Bos. & Pull. 226. 1 New. Rep. 80.

42. If a man cohabits with a woman, to whom he is not married, and permits her to assume his name, and appear to the world as his wife, and in that character to contract debts for necessaries, he will become liable, although the creditor be acquainted with her real situation; for here a like assent will be implied, as in the case of husband and wife. 1 Selw. N. P. 235. 2'Esp. Rep. 637.

WITNESSES.

FOR matter in general relating to witnesses, see title EVIDENCE. See also Virginia Laws, 1 Rev Code. ch. 141, p. 278, and Index to 1st and 2d vol. Rev. Code, tit. WITNESSES.

The only clauses of the above act of assembly, which particularly fall under the notice of a magistrate, are sections 12 and 14, which authorise the clerk of the court in which a suit is depending to issue a commission to take the depositions of witnesses about to depart the country, or by age, sickness, or otherwise, unable to attend the cour.; or where the claim or defence, or a material point, depends on a single vitness, upon affidavit thereof, or on a certificate that an affidavit has been made to that effect.

Witnesses may be compelled to attend before a single justice of the peace. 2 Rev Code, ch. 11, sect

, p. 8.

The fine for non-attendance, not having a reasonable excuse, is five dollars; which may be imposed by the magistrate. 2 Rev Code, ch. 96, p. 122.

But if sufficient cause be shewn to the justice of the inability of the witness to attend, at the time when he ought to have attended, or within one month afterwards the witness being first served with a copy of the order imposing the fine) then no fine shall be incurred. 2 Rev.. Code, ch. 11, sect. 1, p. 8.

Witnesses are allowed for attendance, if residents of the county, twenty-five cents a day; if non-residents. twenty-five cents a day, and three cents a mile for travelling to the place of attendance, and the same for returning, besides ferriages; to be charged to the person summoning them, and taxed in the bill of costs. Ibid. sect 2, p. 8, 9.

The attendance of but one witness, to the same fact, shall be taxed in the bill of costs. Ibid. p. 9.

Witnesses attending a magistrate are privileged from arrests, in the same manner as those attending courts Ibid. p. 9.

Subpoenas for witnesses may be issued by a justice to any county where the witness resides. 2 Rev. Code, ch. 88, sect. 9, p. 116.

(A) Summons for a witness.

The commonwealth of Virginia to the constable of

in the county of

greeting.

district,

You are hereby commanded to summon A W to appear before my or some other justice of the peace for the county of

in the said county, on the

day of

at

next, to testify,

the truth to speak in a certain matter of controversy depending. by warrant, and undetermined, between A B, plaintiff, and C D, defen