Separate

Individual; distinct; particular ; disconnected. Generally used in law as opposed to "joint," though the more usual antithesis of the latter term is "several." Either of these words implies division, distribution, disconnection or aloofness. See Merrill v. Pepperdine, 9 Ind. App. 416, 36 N. E. 921; Larzelere v. Starkweather, 38 Mich. 104.

— Separate action. As opposed to a joint action, this term signifies an action brought for himself alone by each of several complainants who are all concerned in the same transaction, but cannot legally join in the suit.

— Separate demise in ejectment. A demise in a declaration in ejectment used to be termed a "separate demise" when made by the lessor separately or individually, as distinguished from a demise made jointly by two or more persons, which was termed a "joint demise." No such demise, either separate or joint, is now necessary in this action. Brown.

— Separate estate. The individual property of one of two persons who stand in a social or business relation, as distinguished from that which they own jointly or are jointly interested in. Thus, "separate estate," within the meaning of the bankrupt law, is that in which each partner is separately interested at the time of the bankruptcy. The term can only be applied to such property as belonged to one or more of the partners, to the exclusion of the rest. In re Lowe, 11 Nat. Bankr. Rep. 221, Fed. Cas. No. 8,564. The separate estate of a married woman is that which belongs to her, and over which her husbsnd has no right in equity. It may consist of lands or chattels. Williams v. King, 29 Fed. Cas. 1,369.

— Separate maintenance. An allowance made to a woman by her husband on their agreement to live separately. This must not be confused with "alimony," which is judicially awarded upon granting a divorce. See Mitchell v. Mitchell, 31 Co.lo. 209, 72 Pac. 1054.

— Separate trial. The separate and individual trial of each of several persons jointly aceused of a crime. As to separate "Acknowledgment," "Covenant," and "Examination," sce those titles.

I. I.

In old English law. Several; a several or separate share or portion; a separate property.

! 1, V. To part company. See Jury, p. 585, c. 2. 2, adj. Severed or severable; set apart; distinct; existing, belonging to, enjoyed, maintained or maintainable by or for one person or class; entirely one's own, individual; independent, exclusive. Opposed, common, joint, firm, partnership. As, separate — acknowledgment, action, assets, claim, covenant, debt, earnings, estate, examination, maintenance, property, school, trial, qq. v. See also Partnership. The separate estate of a married woman is that alone of which she has the exclusive control, independent of her husband, and the proceeds of which she may dispose of as she pleases. 2 At common law, separate property in a wife is an estate, held in its use and title, for the benefit and advantage of the wife.3 " Separate " is the most apt word for creating a trust for the benefit of a married woman; it will of itself exclude the marital rights of her husband.^ In the absence of " sole and separate " or equivalent words, or of a provision that excludes the marital rights of the husband, or that gives the wife powers inconsistent with the disabilities of coverture, the rights of the husband will attach." See Sole. The English doctrine is that the wife's capacity to dispose of property settled to her separate use is absolute, unless she is expressly restrained by the terms of the settlement; and, generally speaking, the property is bound by her contracts. In the United States the decisions as to her power over her property, and its liability for her engagements, have not been uniform; but the tendency of legislation is to enlarge her power. The American doctrine is that she has no powers except such as are given by the trust instrument, and that these "must be strictly pursued. This is the law in Illinois, Mississippi, Ohio, Pennsylvania, Rhode Island, South Carolina (since 1811), Tennessee, and, formerly, in Maryland. The English doctrine has been followed in Alabama, California, Connecticut, ' L. ae-parare, to set or pui.apart. ' Petty V. Malier, 14 B. Mon. 247 (1853), Simpson, J.; Bowen v. Sebree, 2 Bush, 115 (1867); Alston v. Eowles, 13 Fla. 126(1870). ' George v. Ransom, 15 Cal. 324 (1860); Dow v. Gould, 31 id. 637 (1807). « Lewis V. Mathews, L. R., 2 Eq. 179 (1866); Massey u Eowen, L. R., 4 H. L. C. 294 [(1869); Christian v. Gunn, 80 Va. 372 (1886); Tullett v. Armstrong, 1 Beav. 1, 32 (1638). Florida, Georgia, Kentucky, Maryland, Minnesota, Missouri, North Carolina, New Jersey, New Toric, Virginia, and Vermont, and in the Federal courts. The tendency is toward placing her legal and equitable separate estates, as far as regards her power over them, upon the same footing.' See Anticipation, 1; Husband; Joinder; Joint; Right, 2, In own. Separation. Cessation of cohabitation between husband and wife, by agreement.^ Divorce from bed and board is sometimes. called a " separation," leaving the word " divorce " to refer to the dissolution of a valid marriage.' The agreement is usually evidenced by ar Ucles or a deed of separation. "Voluntary separation," or such as is mutual between the parties, is used in contradistinction to such as is "by sentence of court," that is, ' ' separation a mensa et thoro," or " judicial separation." In some States, the expression " judicial separation" has given way to "divorce a vinculo;" in others, it is still in use, being gi-anted for any c^use not sufl Soient to authorize an absolute divorce. Such separation works no change in the relation of the parties, toward each other or toward third persons, except in authorizing them to live apart until they •may choose to live together again. A reconciliation, of its own force, annuls a sentence of separation. When the terms upon which a voluntary separation takes place are not unreasonable, particularly as regards the rights and claims of the wife, the contract is likely to be upheld as valid.' There are serious objections to voluntary separations' between married persons. Nevertheless, contracts for -the separate maintenance of the wife, through the intervention of a trustee, have received the sanction of the courts for so long a period that the law must be considered as settled. His covenant to support her, where ths consideration is apparent, will be enforced, if it appears that the deed was not made in contemplation of a future possible separation, but in respect to one which was to occur immediately, or 1 See 1 Ld. Cas. Eq. 741; Schoul. H. & W. ni; Perry, Trusts, § 655; Hill, Trustees, 657; Bisp. Eq. IV; 17 Ala. 805; 26 id. 213;' 23 Cal. 554; 20 Conn. 175; 4 Fla. 418; 12 Ga. 200; 32 id. 604; 41 id. 147; 128 U. S. 236; 23 111. 209; 61 id. 426; 10 B. Men. 320; 16 id. 482, and statute since; 5 Md. 219; 11 id. 492; 26 id. 5; 12 Minn. 430; 4 N. J. E. 612; 23 id. 529; 17 Johns. 548; 18 N. Y. 265; 23 id. 466; 14 Ohio St. 619; 1 Eawle, 231; 4 Ta 93; 63 id. 430; 80 id. 380; 2E. I. 355; 3 Dessau. 417; 1 Hill, Ch. 228; 1 Strob. E. 27; 8 Humph. 169; 1 Cold. 461; 2 Leigh, 183; 37 Vt. 78; 13 Blatch. 285; 9 Wall. 119. On executions against her separate estate, see 21 Cent. Law J. 44-i9 (1885), cases; as to wife dealing with it, 24 Am. Law Reg. 470-78 (1885), oases. for the continuance of one already taken place; especially so, if the separation was occasioned by the misconduct of the husband, and the provision is reasonable, and not more than the court would have decreed as alimony." See Desbbtion, 1; Divorce; Hdsbakd.

In its vernacular meaning of distinct, set apart, occurs in some technical phrases. Separate action. A phrase used with reference to the doctrine which, in Tnany cases, allows two persons interested in the same demand, or injured by the same wrong, to join in one suit. Where such privilege is refused it is common to say they must bring separate actions. Separate demise. A demise In a declaration in ejectment used to be termed a separate demise, when made by the lessor separately or individually, as distinguished from a demise made jointly by two or more persons, which was termed a joint demise. No such demise, either separate or joint, is now necessary in this action. Brown. Separate estate, or property. Is chiefly employed in speaking of ownership of property enjoyed by a married woman to her own use independent of her husband, so that she may dispose of it by will, and bind it by her contracts in writing, as if she were unmarried (except as restricted by the instrument creating it). At common law, the rents and profits of a wife's lands, with her chattel property, and her choses in action, as far as he reduced them to possession, were the husband's in right of marriage; but a separate estate might arise in favor of a wife in several ways. One was by local custom; but this has lost importance. Another was by any deed or instrument in writing, whereby property was settled to her sole and separate use, or by other sufficient words to that effect. The enforcement and protection of separate property rights of married women, under settlements and trusts, has long been an important head of equity jurisprudence. By statutes in very many of the United States, the property of a wife is preserved to her notwithstanding the marriage, and she may acquire or part with it, or contract with reference to it, substantially as if unmarried. These enactments, where they prevail, deprive the rules relative to separate property of much of their distinct importance, and the term separate property of its definite meaning and use. Where the rights of a wife in cerher estate is peculiarly of equitable creation and protection, there is need for a distinctive term, and separate property arose naturally, and was serviceable. But under statutes which in effect obliterate the marital right over the wife's property, and preserve it to her as if she were unmanned, there seems less reason for a distinguishing name for a married woman's ownership of property. The wife's property is hers, just as the husband's is his. Separate property, as distinguished from the wife's general property, is that of which she has the exclusive disposal independent of her husband. Alston v. Rowles, 13 Fla. 117, 126. The term separate estate, used in Ala. Code, §§ 1991, 1992, which take away or limit the right of dower of a widow who has a separate estate, means a separate estate created by law, and not one arising by contract or will. Smith v. Smith, 30 Ala. 642; Glenn v. Glenn, 41 Id. 571. Separate estate, within the meaning of the bankrupt law, is that in which each partner is separately interested at the time of the bankruptcy. The term can only be applied to such property as belonged to one or more of the partners, to the exclusion of the rest. Re Lowe, 11 Bankr. Reg. 221. Separate maintenance. An allowance made to a woman by her husband on their agreement to live apart; and distinguishable from alimony, which is an allowance decreed as incident to a divorce. Separate post. Within a statute authorizing extra allowances to army officers commanding at separate posts, an officer may be said to command at a separate post when he is out of the reach of the orders of the commander-in-chief, or of a superior officer in command in tiie neighborhood. Parker v. United States, 1 Pet. 293.