from the husband does not, however, arise when the husband and wife are living apart from each other, and in such case the husband is usually not liable if he allows his wife a sufficient allowance and takes care that it be paid, though in the absence of any such allowance he is generally liable, except in the case of her elopement and living with another man(b).(156)

(b) As to the extent of a husband's liability in respect of his wife's contracts, the question what are necessaries? will be found treated at length in Manby v. Scott, 1 Lev. 4, 1 Sid. 109; Montague v. Benedict, 3 B. & C.

631; Seaton v. Benedict, 5 Bing. 28; Jolly v. Rees, 15 C. B. N. S. 628; Wilson v. Ford, L. R. 3 Ex. 63; Bazeley v. Forder, L. R. 3 Q. B. 559. See also Needham v. Bremner, L. R. 1 C. P. 583.

So where a husband introduces a woman of profligate habits into his house, and permits her to remain there as an inmate, the wife will be justified in withdrawing from his protection, and he will be bound to provide her with necessaries. Descelles v. Kadmus, 8 Clarke (Iowa), 51; Sykes v. Halstead, 1 Sandf. 483.

If a wife, without reasonable or just cause, and in violation of her duty, deserts her husband and refuses to live with him, she cannot bind him to pay for necessaries furnished to her by a person who knows that they are living separate and apart. Brown v. Mudgett, 40 Vt. 68: Collins v. Mitchell, 5 Harr. (Del.) 369; Pool v. Everton, 5 Jones (N. C.), 241; Brown v. Patton, 3 Humph. (Tenn.) 135; Burlen v. Shannon, 14 Gray, 433; Rice v. Durkee, 25 III. 503.

And the rule is the same, even though the person who furnished the necessaries did not know of such desertion at the time of making the sale. Sturtevant v. Starin, 19 Wis. 268; Morgan v. Hughes, 20 Tex. 141; McCutchen v. McGahay, 11 Johns. 281.

Where a married woman leaves her husband's house with his consent, he is liable for the necessary expenses of her subsequent support and funeral, although at the time he gave her a third person's note, saying, "You will need something, but I have not got any money." Corley v. Green, 12 Allen (Mass.), 104. And if the husband's cruelty and neglect compels the wife to leave him, he is liable to a person who provides a burial for her remains, at a reasonable expense, and no notice is necessary in order to charge him. Cunninghum v. Reardon, 98 Mass. 538.

But a husband is not liable for money deposited with his wife, or loaned to her, unless the deposit was made at his request, or unless it is proved that she acted as his authorized agent in taking it. Gilbert v. Plant, 18 Ind. 308. So where a person lends money to a wife knowing that it is to be used for her own private purposes, and he, at the wife's request, conceals the loan from her husband, he cannot maintain an action against the husband for its recovery. Franklin v. Foster, 20 Mich. 75.

So a husband is not liable for goods sold to his wife upon her separate credit as a feme covert trader, where he has never assumed to pay for such goods. Weisker v. Lowenthal, 31 Md. 413.

The common-law liability of a husband civilly for the torts of his wife prevails very generally in this country, unless some statute has changed the rule. Where a married woman claims, as her separate property, a lien upon goods in her possession, belonging to a third person, and she refuses to deliver them, on demand, to such third person, her husband is not liable for her act, although she had in fact no lien upon the goods, and her refusal to deliver them amounted to a conversion. Peak v. Lemon, 1 Lans. 295.

When a tort is committed by the wife, in the presence of her husband, he will generally be liable for her acts. Ball v. Bennett, 21 Ind. 427; Brazil v. Moran, 18 Minn. 236.

Where a husband delivers property to a bailee, with instructions not to deliver it to any person without his written order, if the bailee delivers the property to the bailor's wife, he will be liable for the property, because the wrongful act of the wife in obtaining the property will not constitute any defense to the husband's action. Kowing v. Manly, 49 N. Y. (4 Sick.) 192. For if an action could be maintained against husband and wife for the wife's tort, this would be no defense to his action against the bailee. Ib.

(156) There may be a valid agreement between husband and wife for a separation, which the courts will sanction. Dutton v. Dutton, 30 Ind. 452; Griffin v. Banks, 37 N. Y. (10 Tiff.) 621; Chapman v. Gray, 8 Ga. 341; Calkins v.. Long, 22 Barb. 97; Hutton v. Dewey, 3 Penn

As regards property possessed by the wife whilst sole, it must here suffice to say, that all personalty of a corporeal nature, such as goods or cash, then belonging to the *wife vests in the husband by the marriage, and that [ *545] all such property given to or acquired by the wife after marriage also vests in the husband. But choses in action belonging to the wife before marriage do not on marriage vest in the husband, unless he does some act to reduce them into possession during the coverture, and even during coverture the husband may permit the wife to make a contract, in an action on which he may join with her during her life though he may disaffirm her interest and sue on the contract as made with himself alone. If he does permit the wife to make such a contract and does not reduce it into possession during the coverture it survives to the wife(c).(157)

Again, if the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together(d); but, in respect of such antecedent indebtedness he must be sued jointly with her-not separately(e); and if she die before payment the husband is free from every such claim, unless she leaves property to which he administers(ƒ).(158) If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and must bring it in his name as well as her own(g): neither can she be sued without making her husband a defendant(). There is indeed one case of rare occurrence where the wife can

(c) Fleet v. Perrins, L. R. 3 Q. B. 536, 541. (d) 3 Mod. 186. See Haydon v. Miller, 2 Roll. 53.

(e) Mitchinson v. Hewson, 7 T. R. 348. (f) Heard v. Stamford, 3 P.Wms. 409; Com. Dig. Baron & Feme, E. 3.

(g) Salk. 119; 1 Roll. Abr. 347. (h) 1 Leon. 312; 1 Sid. 120.

The husband can also sue for the loss of his wife's services, which he has sustained in consequence of an injury inflicted on her, and for the medical and surgical expenses he has incurred in procuring requisite attendance for her. Post, vol. iii. p. 150; Hemstead v. Phanix Gas Co., 3 H. & C. 745.

St. 100; Miller v. Miller, 16 Ohio St. 527; Wells v. Stout, 9 Cal. 439. In most of the cases the agreement to live separately was made after a separation had actually taken place; though in others the agreement related to a present separation, which was to continue in future.

Where such an agreement is held valid by the courts, and provision is made for the payment of a specified sum for the wife's support, if the husband makes the payments according to the terms of his agreement, the wife cannot create any debts against him for her support. Calkins v. Long, 22 Barb. 97; Baker v. Barney, 8 Johns. 72.

(157) To defeat the wife's title by survivorship, the husband must reduce her property to possession as husband. Crawford v. Brady, 35 Ga. 184.

Where a promissory note or other evidence of debt is made payable to husband and wife, and he dies, the wife, as survivor, will be entitled to the proceeds, unless the interests of creditors are thereby affected. Johnson v. Lush, 6 Cold. (Tenn.) 113.

At common law, a husband is entitled to the personal property and choses in action of his wife, and they are vested in him at her death, whether reduced to possession or not, in virtue of his marital right, and not of his right to administration. Ryder v. Hulse, 24 N. Y. (10 Smith) 372; Ransom v. Nichols, 22 N. Y. (8 Smith) 110; Barnes v. Underwood, 47 N. Y. (2 Sick.) 351.

(158) The liability of a husband for the debts of the wife which were contracted before the marriage is a joint one, and it terminates on her death, unless enforced during coverture by a judgment in a joint action against both. Cole v. Shurtleff, 41 Vt. 311; Jones v. Walkup, 5 Sneed (Tenn.), 135; Day v. Messick, 1 Houston (Del.), 328; Chaplin v. Moore, 7 Monr. (Ky). 179; Thaeton v. Houseal, 2 McCord's Ch. (S. C.), 430; Randolph v. Simpson, 2 Halst. (N. J ) 346; Neutz v. Reuter, 1 Watts (Penn.), 229; Howes v. Bigelow, 13 Mass. 384.

sue and be sued as a feme sole, viz., where the legal existence of the husband is considered as extinguished or suspended, that is to say when he is dead [*546] in law(i), for then the husband being thus disabled to sue for or defend the wife, it would be unreasonable, if she had no remedy or could make no defence at all. In criminal prosecutions, however, the wife might always have been indicted and punished separately(k): for marriage is only a civil union. According to the civil law husband and wife were considered as two distinct persons; and might have separate estates, contracts, or debts, and sustain separate injuries(); and, therefore, in our ecclesiastical courts, as formerly constituted, the procedure of which was in a great measure founded on, and regulated by the civil law, a woman might sue and be sued without her husband (m); and in courts of equity the husband and wife are, for many purposes, regarded as distinct persons: ex. gr. the wife may have a separate estate under the doctrine of trusts; and may bind the same by her separate contracts; and she may sue and be sued in respect of such contracts or in relation to such estate.(159)

Moreover, though our common law in general considers man and wife as one person, yet, there are some instances in which the wife is separately considered; as inferior to the husband and acting by his compulsion. She cannot by will devise property to her husband, unless under a power of appointment or other special circumstances: the original reason for which appears to have been that at the time of making the will she was supposed to have been under his coercion (n). And in some felonies and other inferior crimes, committed by the wife, through constraint of her husband, the law excuses her; but this extends not to treason or murder or some other offences(0).

The husband also (by the old law) might give his wife moderate correction(p).(160) For as he was to answer for her *misbehaviour, the [ *546] law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, with the same moderation that a man is allowed to correct his apprentices or children. But this power of correction was confined within reasonable bounds(g), and the husband was prohibited from using any violence to his wife aliter quam ad virum, ex causâ regiminis et castigationis uxoris suæ, licite et rationabiliter pertinet(r). The civil law gave the husband the same, or a larger authority over his wife: allowing him for some misdemeanors, flagellis et fustibus acriter verberare uxorem; for others, only

(160) A husband cannot be convicted of a battery on his wife unless he inflicts a permanent injury on her person, or uses such excessive violence or cruelty as indicates malignity or vindictiveness; and it makes no difference that the husband and wife are living separate by agreement. State v. Black, 1 Winst. (N. C.) 266.

A husband has no right to beat his wife, or to inflict corporal punishment upon her; but he may defend himself against her, and may restrain her from acts of violence toward himself or toward others. People v. Winters, 2 Park. Cr. Cas. 10. And when a husband is indicted for an assault and battery on his wife, he may show, in mitigation of the fine, that, at the time of the assault, he was immediately provoked to its commission by her bad behavior and misconduct. Robbins v. State, 20 Ala. 36.

VOL. I.-47

modicam castigationem adhibere(s). But with us, in the reign of Charles II., this power of correction began to be doubted (t): and a wife may now have security of the peace against her husband(u); or, a husband against his wife(x). Yet there can be no question respecting the common law right of a husband to restrain his wife of her personal liberty, with a view to prevent her going into society of which he disapproves, or otherwise disobeying his rightful authority; such right must not, however, be exercised unnecessarily or with undue severity; and the moment that the wife, by returning to her conjugal duties, makes restraint of her person unnecessary, such restraint becomes unlawful(y).

Secondly we have to consider the effect of the dissolution of marriage, which can only take place in two ways, viz., by death or divorce: the effect of the Effect of dissolu- death of either party, with regard to the wife's right of dower, tion of marriage. and the husband's tenancy by the curtesy of real estate, and their respective claims to personal estate under the statute of *distributions, [ *548] will be treated of in our Second Volume. It is only necessary here to mention that, whereas the husband of a woman indebted whilst sole, is freed from her creditor's claims after her death (z), the wife surviving her husband becomes again liable to them.

The remaining questions are as to the effect of a divorce, or a judicial separation:

Divorce.

The separation effected by a divorce is so complete that if the divorced persons again cohabited their union would be adulterous, and their children would be illegitimate, but there seems nothing to prevent divorced persons being re-married if they choose; of course if the marriage be pronounced void on the ground of consanguinity, or otherwise, the effect is the same as if it had never taken place. Further, in a case of dissolution of marriage on the ground of the misconduct of either party the court in its discretion may allot alimony, and may make arrangements with regard to subsisting settlements.

Judicial separation.

A judicial separation has the same effect(a) as had the divorce a mensa et thoro formerly granted by the ecclesiastical courts, and is, as that term implied, merely a legal severance from bed and board, leaving the matrimonial tie unloosed; consequently the parties may return to cohabitation at any time when they may mutually choose to do so. As far as property is concerned, the right of suing and being sued in court, a wife, after a sentence of judicial separation, stands in the position of a feme sole, and the court has powers of allotting alimony and making arrangements with regard to property.

The right to the custody of children in the cases of divorce or judicial separation will be treated of in the next chapter.

(*) Nov. 117, c. 14.

(t) Lord Leigh's Case, 3 Keb. 433.

(u) 2 Lev. 128.

(x) Stra. 1207.

(y) Per Coleridge, J. In re Cochrane, 8 Dowl. P. C. 631; R. v. Lister, Stra. 478.

(z) Ante, p. 545.

(a) 20 & 21 Vict. c. 85, s. 7.

*CHAPTER XVI.

PARENT AND CHILD.

[*549]

THE next relation to be noticed is immediately derived from the preceding, being that between parent and child.

Parent and child.

children.

Children are of two sorts; legitimate and illegitimate; each of which we shall consider; and first, of legitimate children.

I. A legitimate child is one born in lawful wedlock, or within a competent time afterwards.(161) "Pater est quem nuptiæ demonstrant," is the rule of (L.) Legitimate the civil law(a); and this holds with the civilians, whether the nuptials happened before, or after, the birth of the child. With us in England, however, the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. At present let us inquire into: 1. The legal duties of parents to their legitimate children. 2. The power of parents over their children. 3. The duties of such children to their parents.

1. The duties of parents to legitimate children principally consist in three particulars; their maintenance, their protection, and their education.

1. Duties of parents to

The duty of parents to provide for the maintenance of their their children. children, depends on a principle of natural law; it is an obligation, says Puffendorf(b), laid on them not only by nature herself, but by their own act, in bringing them into the world: for they would be in the highest degree *injurious to their issue, if they only gave their children life, and afterwards let them perish. By begetting children, therefore, the [*550] parents have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. Thus children have morally a perfect right of receiving maintenance from their parents. And Montesquieu(c) justly observes upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children: for marriage ascertains and makes known the person who is bound to fulfil such obligation: whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way;-shame, remorse, the constraint of her sex, and the rigour of laws; - that stifle her inclinations to perform this duty; and besides, she usually wants ability.

The municipal laws of well-regulated states have taken care to enforce this (a) Dig. 2, 4, 5.

(b) L. of N. 1. 4, c. 11.

(c) Sp. L. bk. 23, c. 2.

(161) The common law does not regard any as lawful children but those born in the bonds of matrimony, and begotten by the lawful father upon the lawful mother. No mat ter how clear, strong and satisfactory the evidence may be to show that a particular individual is the father of a child born of an unmarried woman, the common law will not recognize him as such father by giving him the rights, or subjecting him to the responsibilities, of a parent. Nor will it recognize any right of the infant to inherit the property of such father. In a subsequent note the presumptions as to legitimacy will be stated. See note 171.