Booth V. Tousey. hearing the evidence adduced, they found due to the plaintiff 58 dols. 25 cts. being the balance of their book accounts. Josias Smith, for the defendant, moved to set aside this report, because one of the auditors, to wit, Belden Seymour, had not attended to examine the book accounts of the parties. Amos Marsh, for the plaintiff, replied, that before the meeting of the auditors, the parties had agreed to proceed to the audit before the two attesting ditors, in the absence of the third. Josias Smith. The statute empowers the Court to appoint one or more judicious and disinterested men as auditors. After the Court have elected the number, and the rule has been made out and delivered to the party, the statute makes no provision for a part of them in any case to proceed to the audit. But it is suggested, that the presence of one was Amos Marsh, for plaintiff. EDWARD GOULD against WILLIAM WEBSTER. Gould V. Webster. A lease made during cover by the husband ture, of land TRESPASS quare clausum fregit, for breaking and entering the plaintiff's close in Ferrisburgh, containing twenty acres of meadow, ten acres of arable, held in right of and ten acres of pasture land, described as the his wife, of westerly part of Lot No. 129. drawn to the original which she had been endowed in consequence riage, cannot right of Henry Davis, and there doing damage on the of a prio mar1st of June, 1800, with a continuando to the 1st of enure against September following. General issue joined, and put to the Jury. the woman after a divorce a vinculo matrimonii, but may be considered sub modo so far to secure the baron's te blements, upon tion of the lease It was conceded, that the lands described in the as declaration were, on the 21st December, 1795, by the nant in his emcommissioners under the probate, set off as dower to the determinaMary, the widow of one Benajah Webster, in whom by the divorce. the fee was at his decease; that the widow went into possession, and so continued until her marriage with William Stockman; that during the coverture, to wit, on the 10th of August, 1799, Stockman leased the land to the plaintiff by written lease; that before the expiration of the term, to wit, in January, 1800, Stockman and wife were divorced a vinculo matrimonii, and after the divorce the entry was made and the crops taken by the defendant, who justified as the servant of Mary. The question now made upon objection to the lease being read in evidence, is, whether the lease executed by William Stockman shall enure against the woman after the divorce. Gould V. Webster. Amos Marsh. We object to the shewing of this lease in evidence. We consider it as void. All the interest William Stockman ever had to the lands in question was acquired by the marriage and terminated with the divorce. In analogous cases we find it laid down as law, "that if tenant in dower or by the curtesy makes a lease for years, reserving rent, and die, this lease is absolutely determined; so that no acceptance by the heir, or those in reversion, can make it good. For though their estate is quodammodo a continuance of the estate of the husband or wife, yet it is a continuance of it only for life, and they have no power to contract for or interfere with the inheritance, and consequently their leases or charges fall off with the estate whereout they were derived, and the lessee has become tenant by sufferance by his continuance of possession after." So, in case of tenant for life, he can make no leases to continue longer than his own life. Bacon's Abridgment, vol. 4. p. 126. A divorce a vinculo matrimonii operates a civil death to the conjugal pair as husband and wife, and should have the same operation in law in all its con sequences as a natural death. Josias Smith, contra. It cannot be controverted, that our lessor, William Stockman, at the time of the executing the lease, had full power to make it, and that the lease would have been in force until the expiration of the term, if the divorce had not intervened. We consider the interest of Mary Webster in these lands by her intermarriage with William Stockman so vested in him that he had power without her aid to lease them, and his lease, the term being not expired, must operate beyond the divorce. The law looks upon the husband and wife as one person, and therefore allows but one will between them, which is placed in the husband as the fittest and ablest to provide for and govern the family. He has an absolute power over her personal, and a qualified power over her real estate. A distinction is however here to be taken between real estate which the wife holds in her own right in fee, and that interest in land which she herself held at the time of her marriage, not of inheritance, but for a term. In the former case she must join with her baron in a deed to pass the fee, or to make a lease, which shall not determine by the dissolution of the coverture. In the latter case, the husband may execute the lease alone, and it shall enure beyond the coverture; for the wife's interest in the lands is but a mere chattel interest, and subject, with her personal estate, to the control of the husband. Mary Stockman, therefore, by her marriage with William Stockman, subjected the lands in question to the absolute control of her husband, and the lease made by him during the coverture is valid. We observe further, that the law is careful that the lessees of those who hold lands dependent on contingencies, shall not suffer by those events against which common foresight cannot guard. If tenant by dower, curtesy, or for life, after having made a lease and reserved rent, die before the expiration of the term, the tenant shall have his emblements. Surely no human prudence could have Gould V. Webster. Gould V. Webster. guarded against a divorce. If, therefore, the lease was determined by the divorce, the defendant, as the servant of Mary Stockman, cannot justify the taking. the crops or emblements. But if the interest of our lessor Stockman in the lands was destroyed by the divorce, it does not follow that the lease is destroyed. We learn from the books, that a man makes a lease of lands holden by him in the right of his wife, in whom the fee is, and dies, yet if the widow, or even her second husband, accepts rent, the lease shall enure in favour of the tenant in possession to the expiration of the term. Mary Stockman, in lieu of inciting the defendant to a trespass, should, upon the dissolution of her marriage by the divorce, have given notice to the plaintiff, who would readily have attorned to her. Her interest in the land, if any existed surely could not justify a trespass. Amos Marsh. The question now before the Court is of magnitude. If a divorce a vinculo matrimonii does not restore to a woman all the estate she held to lands in her own right at the time of the marriage, and the husband during the coverture may carve such an estate out of them by durable leases as may utterly defeat her interest, then every man who marries a widow endowed may dispose of her estate in dower at will, without her consent and act; and this would be in opposition to the statute, which declares, that "no real estate, of which a woman shall be seised, shall pass by deed of herself and baron, unless the deed be acknowledged by her apart from her husband." Will it be contended, that the husband has |