Pierce v. Burnham , 45 Mass. 303 ( 1842 )

Shaw, C. J.

The main question presented on this bill of exceptions is, whether a married woman, after a divorce a mensa el thoro, regularly decreed by a court of this Commonwealth, can make a valid contract to bind herself, and whether an action can be maintained against her alone on such contract.

Whatever diversity of opinion there may have been on this subject, in courts professing to be governed by the rules of the common law, we consider it settled, in this Commonwealth, in the case of Dean v. Richmond, 5 Pick. 461, that a woman divorced a mensa, during the separation, and in the lifetime of her husband, may enter into contracts, take her own earnings to her own use, and, as a necessary consequence of this capacity, may sue and be sued. 2 Kent Com. (3d ed.) 157. After such divorce, the law of this Commonwealth recognizes her right to acquire and hold property, to take her own earnings to her own use, for the support and maintenance of herself and children. . She is deprived of the protection and exempted from the control of her husband. She may, by the decree of the court granting the divorce, and pursuant to the provisions of the statute law of the Commonwealth, be charged with the custody, and consequently with the support and maintenance, of the children of the marriage. The reason, therefore, why a wife cannot sue or be sued, without joining and being joined with her husband, does not exist. But the relation, in which the divorce a mensa et ihoro places the parties, opposes such a joinder. If it were necessary to join the husband as plaintiff, he might release her rights, by which she would be subjected to costs ; if he might be joined as defendant, he might be made subject to her debts ; both of which consequences are repugnant to the new relation of divided and separate interests, in which the law, by such a decree, places them. Whilst the law thus recognizes the right of a woman, so divorced, to acquire and to take the proceeds of her industry to her own use, it recognizes her power to make contracts ; and if she could not sue or be sued, it would present the anomalous case, in which the law recognizes a right without affording a remedy for vindicating it, and subjects a party to a duty, without lending its aid to enforce it.

Exceptions overruled.