(Jortifll Ham i>ri|nnl Slibrarji Cornell Unlvaralty Library KF 505X84 A treatise on the law of domestic relati 3 1924 018 828 685 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018828685 A TREATISE ON THE LAW OF DOMESTIC RELATIONS JOSEPH R. LONG Pro essor of Law in Washington and Lee University ST. PAUL KEEFE-DAVIDSON COMPANY 1905 "B 79^0^ Copyright, 1903 By JOSEPH R. LONG. Copyright, 1905 By JOSEPH R. LONG. PREFACE This book has been written. to supply a need which I have personally felt as a teacher of law. In writing it I have kept my own students constantly in mind, and have endeavored to set forth those principles of the law which I thought they ought to know, in such a man- ner as to be most readily grasped by them. In all cases my aim has been to present and emphasize principles, rather than the details of their application, such de- tails being supplied only so far as seemed desirable for purposes of illustration. In the apportionment of space among the several branches of the subject, I have acted according to my best judgment as to the relative im- portance to the student of each topic in the present state of the law; in some instances devoting to a particular topic more, and in others less, space, relatively, than is done in other works written specially for the practi- tioner. • The citation of authorities, while abundant, is, of course, far from exhaustive. Care has been taken, how- ever, to furnish a starting point in all cases from which the reader may readily find additional authorities upon any given point. Although this book is intended primarily for the use of students, it is hoped that it may be not wholly with- out value to the practitioner as well. J. R. L. Lexington, Virginia. TABLE OF CONTENTS. INTRODUCTION. § 1. The domestic relations defined and enumerated. PART I. HUSBAND AND WIFE. § 2. In general. CHAPTEK I. THE NATURE OP MARRIAGE. 3. Definition of marriage. 4. Marriage not a contract, but a status. 5. Marriage a public relation. 6. Marriage a permanent relation. 7. Marriage an exclusive relation. CHAPTER II. THE ESSENTIALS OP A VALID MARRIAGE. I. In General — Consent. § 8. Void and voidable marriages distinguished. 9. Marriage founded on consent. 10. Consent must be to marriage. II. Capacity of Parties — Impediments to Markiage. § 11. In general. 12. Precontract. ii TABLE OP CONTENTS. II. Capacity of Pabties — Impediments to Maeeiage — Cont'd 13. Consanguinity and affinity. 14. Impotency. 15. Prior marriage undissolved. 16. Want of age. 17. Want of consent of parent or guardian. 18. Want of reason. 19. Impediments of race or social condition. 20. Impediments following divorce. •III. Reality op Consent. § 21. In general. 22. Marriage under duress. 2.S. Marriage procured by fraud — In general. 24. Same — Whether void or voidable. 25. Same — Consummated and nonconsummated marriages distinguished. 26. Same — Liability for fraudulently procuring marriage. 27. Marriage entered into by mistake. IV. Expression op Consent — How Marriage is Eppected. § 28. In gisneral. 29. The agreement to marry — Breach of promise. 30. Marriage at common law. 31. Same — Marriage per verba de presenti. 32. Same — Marriage per verba de futuro cum copula. 33. Formal marriage — Statutory provisions. 34. Same — The celebrant. 35. Marriage ceremony without matrimonial intent. 36. Motives inducing marriage immaterial. 37. Curative statutes. 38. Estoppel to deny marriage. CHAPTER III. CONFLICT OF LAWS. 39. In general — Foreign marriages. 40. First general rule — Marriage valid where celebrated valid ev- erywhere — Exceptions. 41. Same — Polygamous and incestuous marriages. 42. Same — Marriages contrary to local public policy. TABLE OP CONTENTS. ix 43. Same — Marriage in evasion of law of domicile. 44. Same — Marriages after divorce. 45. Same — English doclrine. 46. Second general rule — Marriage void where celebrated void everywhere. 47. Legalized polygamy. 48. Change of law — Marriage governed by law in force when cele- brated. CHAPTER IV. PROOF OP MARRIAGE. -49. In general. 50. Presumptions in favor of marriage — In general. 51. Same — Presumption from cohabitation and repute. 52. Same — Cohabitation originally illicit. 53. Same — Presumption of dissolution of prior marriage. 54. Same — Strength of presumptions. 55. Proof of foreign marriages. 56. Proof in criminal cases. 57. Burden of proof. CHAPTER V. THE LEGAL CONSEQUENCES OP MARRIAGE. § 58. In general. I. The Personal Relations or Husband and Wife. § 59. Mutual duties of husband and wife — Husband head of family. 60. Same — Duty of wife to obey husband. 61. Right of husband to chastise or restrain wife. 62. Matrimonial cohabitation — In general. 63. Same — Right of husband to fix domicile. 64. The duty of support — Burial. 65. Right of husband to wife's services. II. The Pbopebty Rights of Hdsiiand and Wife. § 66. In general. 67. Husband's interest in wife's property — Personalty. 68. Same — The wife's earnings. X TABLE OF CONTENTS. II. The Psopektt Rights of Husband and Wife — Cont'd. 69. Same — Chattels real. 70. Same — Rea.1 property. 71. Wife's interest in husband's property. 72. Conveyances in fraud of marital rights. 73. Wife's pin money^Paraphernalla — Equity to settle- ment. 74. Wife's equitable separate estate. 75. Wife's statutory separate estate. 76. Co-ownership of property. 77. Marriage settlements — Antenuptial contracts. 78. Postnuptial settlements. 79. Rights of surviving husband or wife. 80. Conflict of laws as to property rights. III. The Disabilities of Covektdee. § 81. Disabilities of the husband. 82. Disabilities of the wife — In general. 83. Same — Disability to contract. 84. Capacity of wife to acquire or hold property. 85. Conveyances by or to wife. 86. Wills of married women. 87. Capacity of wife to act as agent or fiduciary. 88. Suits by or against married women. 89. Estoppel of married women. 90. When wife may act as feme sole. 91. Wife as sole trader — Partnership. 92. Conflict of laws as to wife's disabilities. 93. Mutual disqualification as witnesses. IV. Teansactions Between Husband and Wife. § 94. Antenuptial contracts — Effect of marriage. 95. Postnuptial contracts and transfers of property — At common law. 96. Same — Doctrine in equity. 97. Same- — Under statutes. 98. Relation of debtor and creditor between husband and wife. 99. Wife as agent of husband. 100. Husband as agent of wife. 101. Suits between husband and wife. 102. Wills in each other's favor. 103. Liability to each other in tort. TABLE OF CONTENTS. xi v. Rights of Husband and Wife Against Third Persons. § 104. On contract. 105. In tort — Wrongs against right of cohabitation— In general. 106. Same — Abduction or enticement of spouse. 107. Same — Alienation of affections. 108. Same — Criminal conversation. 109. Injuries to wife's person or reputation. 110. Injuries to wife's property. VI. Liability of Husband and Wife to Third Persons. § 111. On the husband's contracts. 112. On the wife's antenuptial contracts. 113. On the wife's postnuptial contracts — In general. 114. Same — Contracts made by wife as husband's agent. 115. Same — Wife's contracts for necessaries — In general. 116. Same — What are necessaries. 117. Same — Credit not given to husband. 118. Same — Wife living apart from husband — In general. 119. Same — Separation through fault of husband. 120. Same — Separation through fault of wife. 121. Same — Separation by mutual consent. 122. Same — Effect of wife's adultery while living apart. 123. Same — Necessity and effect of notice not to credit wife. 124. Same — Effect of divorce proceedings or decree. 125. Liability of supposed husband for supplies furnished to woman passing as wife. 126. Liability for wife's torts. VII. Criminal Liability of Husband and Wife. § 127. In general. 128. Crimes against each other. CHAPTER VI. THE DISSOLUTION OF MARRIAGE. 129. In general — Dissolution by death. 130. Dissolution by divorce — In general. 131. The several kinds of divorce. 132. Nature of divorce proceedings — Parties — Cross suit. ii TABLE OF CONTENTS. 133. The causes for divorce — At common law. 134. Same — Statutory grounds — In general. 135. Same — Adultery. 136. Same— Cruelty. 137. Same — Desertion. 138. Same — Other grounds. 139. Defenses to suit for divorce — In general. 140. Same — Special defenses. 141. Vacation of decree for fraud. 142. Foreign divorces — Domicile — Conflict of laws. 143. The effect of divorce. 144. Alimony. 145. Custody of children. 146. Separation by agreement of parties. PART II. PARENT AND CHILD. THE ESTABLISHMENT OP THE RELATION. CHAPTER VII. 147. In general. 148. The several classes of children. 149. Presumption of legitimacy. 150. Legitimation of illegitimate child. 151. Adoption of children. CHAPTER VIII. THE DUTIES AND LIABILITIES OP PARENTS. 152. In general. 153. Duty of maintenance — In general. 154. Same — Nature of duty as moral or legal. 155. Same — Liability for necessaries. 156. Same — Where child is not living with parent. TABLE OF CONTENTS. 157. Duty of protection. 158. Duty of education. 159. Liability to third persons for torta of child. CHAPTER IX. THE RIGHTS OP PARENTS. 160. In general. 161. Right to custody and control of child. 162. Right to child's services. 163. Right to child's property. 164. Right to recover for injuries to child. CHAPTEK X. CERTAIN MISCELLANEOUS MATTERS. § 165. Duties of child to parent. 166. Transactions between parent and child. 167. Emancipation of child. 168. Illegitimate children. 169. Stepchildren. PART III. GUARDIAN AND WARD. CHAPTER XL IN GENERAL. 170. In general. 171. The several kinds of guardianship. 172. Guardianship by nature and for nurture. 173. Guardianship in socage. 174. Testamentary guardianship. :iv TABLE OF CONTENTS. 175. Chancery and probate guardianship — Informal guardianship. 176. Guardianship by election of ward. 177. Guardianship ad litem. 178. Appointment and qualification of guardians— Foreign guar- dians. 179. Powers and duties of guardian as to ward's person. 180. Same — Duty of support, etc. — In general. 181. Same — Use of ward's estate for his support. 182. Powers and duties of guardian as to ward's estate. 183. Same — Duty as to investments. 184. Contracts of guardian or ward. 185. Transactions between guardian and ward. 186. Termination of guardianship. 187. Compensation and reimbursement of guardian. ■■ ^P Accounting by guardian. PART IV. INFANCY. CHAPTEE XII. IN GENERAL. 189. In general — Who are infants. 190. Domicile of infants. 191. The capacity and disabilities of infants— ^In general. 192. Same — Capacity to contract. 193. Same — Capacity to acquire, hold or dispose of property. 194. Same — Capacity to act as agent or fiduciary. 195. Same — Capacity to hold office. 196. Same — Capacity as witnesses. 197. Criminal responsibility of infants. 198. Liability of infants for torts. 199. Recovery by infants for torts. 200. Suits by or against infants. DOMESTIC RELATIONS. INTRODUCTION. § 1. The domestic relations defined and enumerated. The domestic relations are the relations existing be- tfl'een the members of a family or household. Accord-; ing to the usual classification, these relations iare four in number, namely, the relations of v , b^^^iand and wife; (2) parent and child; (3) guardian and ward; (4) master and servant. The relation of master ul- servant as a purely domestic relation is now of small importance, and the law relating thereto will be found discussed in connection with othe^' branches of the law, especially the law of contracts, agency, and torts. No discussion of this relation will therefore be attempt- ed in this work. The other three relations will now be considered in order, after which the nearly related sub- ject of infancy will be discussed. PART I . HUSBAND AND WIFE. § 2. In general. The relation of husband and wife {'baron and /eme) is perhaps the most important of the domestic relations, Long, D. R. — 1. 2 HUSBAND AND WIPE. and constitutes one of the chief foundations of our social order.i We shall investigate in detail the nature of marriage; the essentials of a valid marriage; how marriage is effected; the legal consequences of mar- riage, or the rights, duties, and liabilities growing out of the marriage relation; and, finally, the dissolution of marriage, including a full discussion of the law of divorce and separation. 1 The contract of marriage is the most Important of all human transactions. It is the very basis of the whole fabric of civilized society. Story, Confl. Laws, § 109, quoting Fergusson, Mar. & Div. 397. CHAPTER I. THE NATURE OP MARRIAGE. § 3. Definition of Marriage. 4. Marriage not a Contract, but a Status. B. Marriage a Public Relation. 6. Marriage a Permanent Relation. 7. Marriage an Exclusive Relation. § 3. Definition of marriage. The word marriage is used in two senses. It may mean either the solemnity or ceremony by which a man and a woman are joined in wedlock, or their status when they have been so joined.^ Marriage in the first sense will be considered later. An eminent authority has defined marriage in the sec- ond sense as follows : "Marriage, as distinguished from the agreement to marry, and from the act of becoming married, is the civil status of one man and one woman legally united for life, with the rights and duties which, for the establishment of families and the multiplica- tion and education of the species, are, or from time to time may thereafter be, assigned by the law to matri- mony."^ More briefly, marriage is the civil status of a man and a woman legally united as husband and wife. 2 Harvey v. Farnie, 6 Prob. Dlv. 35. 3 1 Bishop, Mar., Div. & Sep. § 11. "The word 'marriage' signifies, In the first instance, that act by which a man and woman unite for life, with the intent to discharge towards society and one another 4 HUSBAND AND "WIFE. g 3 In a number of states marriage is defined or described by statute. The statutes, however, are merely declara- tory, wholly or in part, of the common-law definition of marriage.* In the Catholic countries, and in some of the Protes- tant countries, of Europe, marriage is treated as a sacra- ment f but in England and in this country it is re- those duties which result from the relation of husband and wife. The act of union having been once accomplished, the word comes afterwards to denote the relation itself." Schouler, Dom. Rel. § 12. See, also. State v. Bittick, 103 Mo. 183, 23 Am. St. Rep. 869. 4 Thus, in California it is provided that "marriage is a personal relation arising out of a civil contract, to which the consent of par- ties capa-ble of making that contract is necessary." ■ Civ. Code, § 55; Kilburn v, Kllburn, 89 Cal. 46, 23 Am. St. Rep. 447. And in Mis- souri it is declared that "marriage is considered in law as a civil contract, to which the consent of the parties capable in law of conr tracting is essential." Rev. St. 1889, § 6840. But while here de-- clared to be a civil contract. It is something more than an ordinary- contract, — marriage is a status,' created by contract. State v. Bit- tick, 103 Mo. 183, 23 Am. St. Rep, 869. So, also, in Ne^w York, "marriage, so far as its validity in law is concerned, shall continue in this state a civil contract, to which the consent of parties, capable in law of contracting, shall be essential." Rev. St. (9th Ed.) p. 1889, § 1. This statute declares marriage to be a civil contract, as distinguished from a religious sacrament^ and makes the element of consent necessary to its legal validity; but its nature, attributes, and distinguishing features it does not interfere with or attempt to define. It is declared a civil, contract for certain purposes, but it is not thereby made synonymous with the word "contract," employed in the common law or statutes. Wade v. Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250. So, also, in Nebraska. ^Jniversity of Michigan v. McGuckin, 62 Neb. 489, 87 N. W. 180, 57 L,. R. A. 917. 6 Story, Confl. Laws, § 108. "It would seem that in the dark ages a notion prevailed of the mysterious nature of the contract of mar- riage, in which its spiritual nature almost entirely obliterated its civil character. * * * In more modern times it has been con- sidered in its proper light, — as a civil contract, as well as a religious; vow." Pornshill v. Murray, 1 Bland (Md.) 479, 18 Am. Dec. 344. See, also, Londonderry v. Chester, 2 N. H. 268, 9 Am. Dec. 61. § 4 NATURE OF MARRIAGE. 5 garded wholly as a civil institution, without any neces- sary religious character.^ § 4. Marriage not a contract, but a status. Marriage was formerly regarded as a contract. Thus Blackstone says: "Our law considers marriage in no other light than as a civil contract.'" This view is held by some modern authorities, who, however, recognize that, if a contract, it is a contract of a peculiar char- acter, and subject to peculiar principles.® The better view, however, is that marriage is not a contract at all, but a statu s. It is, indeed, founded on contract,® but marriage itself, in the sense in which we are now using 6 1 BI. Comm. 433. See, generally, cases cited in notes to sections immediately following. 7 1 Bl. Comm. 433. It is probable that, in speaking of marriage as a civil contract, Blackstone intended merely to distinguisb it from a religious sacrament, in which light it was regarded by the ec- clesiastics. He goes on to say: "The holiness of the matrimonial state is left entirely to the ecclesiastical law," thus clearly recog- nizing that marriage is a status. This remark applies, also, to the statutes defining marriage as a civil contract. See "Wade v. Kalb- fleisch, 58 N. Y. 282, 17 Am. Rep. 250. 8 See Townsend v. Griffin, 4 Har. (Del.) 440; Maguire.v. Maguire, 7 Dana (Ky.) 181; Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, 67 N. B 63, 63 L. R. A. 92. 9 "Whatever question or controversy may exist among legal writ- ers and jurists concerning the nature of the relation subsisting be- tween husband and wife after marriage, * * * all the authori- ties concur in the conclusion that marriage has its origin and foun- dation in a purely civil contract." Bigelow, J., in Little v. Little 13 Gray (Mass.) 264. The marriage relation is,' in fact, based on two contracts, namely, the contract to marry, or the "engagement, and the contract of marriage, by which the parties assume the marital status. The contract of marriage is, of course, the execu- tion or performance of the contract to marry. See post, §§ 9, 29-32 6 HUSBAND AND WIFE. § 4 the term, is not a contract.*" This becomes plain when we note some of the particulars in which marriage dif- fers from an ordinary contract. Thus, as has been well said: "That marriage executed is not a contract we know, because the parties cannot mutually dissolve it, because the act of God incapacitating one to discharge its duties will not release it, because there is no accepted performance that will end it, because a minor of mar- riageable age can no more recede from it than an adult, because it is not dissolved by a failure of the original consideration, because no suit for damages will lie for the nonfulfillment of its duties, because its duties are not derived from its terms, but from the law, because legislation may annul it at pleasure, and because none of its other elements are those of contract, but all are of status."** In considering marriage as a status, rather 10 Hyde v. Hyde, L. R. 1 Prob. Div. 130; Randall v. Kreiger, 23 Wall. (U. S.) 137; Maynard v. Hill, 125 U. S. 190, Woodruff, Cas. 23; Gregory v. Gregory, 78 Me. 187, 57 Am. Rep. 792; University of Michigan v. McGuckin, 62 Neb. 489, 87 N. W. 180, 57 L. R. A. 917; Wade V. Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250; MoKinney v. Clarke, 2 Swan (Tenn.) 321, 58 Am. Dec. 59; Hilton v. Roylance, 25 Utah, 129, 89 Pac. 660, 95 Am. St. Rep. 821, 58 L. R. A. 723; State v. Duket, 90 Wis. 272, 48 Am. St. Rep. 928, 31 L. R. A. 515. It is well settled that marriage is not a contract within the meaning of the clause of the federal constitution which prohibits the Impairment by a state of the obligation of contracts. Maynard y. Hill, 125 U. S. 205, Woodruff, Gas. 23; State v. Tutty, 41 Fed. 753, 7 L. R. A. 50; Townsend v. Griffin, 4 Har. (Del.) 440; Adams v. Palmer, 51 Me. 480; Magee v. Young, 40 Miss. 164, 90 Am. Dec. 322; State v. Duket, 90 Wis. 272, 48 Am. St. Rep. 928, 31 L. R. A. 515. 11 1 Bishop, Mar., Div. & Sep. § 13. The quotation here made from Mr. Bishop Is reviewed and disapproved in McCreery v. Davis, 44 S. C. 195, 51 Am. St. Rep. 794, 28 L. R. A. 655, and the conclusion reached that, in South Carolina, marriage is a civil contract. But the doctrine of the text is now almost universally accepted. Thus, § S NATURE OF MARRIAGE. 7 than a contract, however, we should be careful to bear in mind that we are here concerned only with mar- riage in the second sense, as above defined, namely, "marriage, as distinguished from the agreement to mar- ry, and from the act of becoming married." The agree- ment to marry may very properly be designated as the contract to marry, and the act of becoming married as the contract of marriage. And where, as is frequently the case, marriage is spoken of as a civil contract, it will usually be found that the court is concerned with mar- riage in one or the other of these senses.^^ § 5. Marriage a public relation. Marriage is not merely a personal relation between the husband and wife, but is a status established by law, in Randall v. Kreiger, 23 Wall. (U. S.) 137, it is said: "Marriage is an institution founded upon mutual consent. That consent is a contract, but it is one sui generis. Its peculiarities are very marked. It supersedes all other contracts between the parties,, and with certain exceptions it is inconsistent with the power to make any new ones. It may be entered into by persons under the age of lawful majority. It can be neither canceled nor altered at the will of the parties upon any new consideration. The public will and policy controls their will. An entire failure of the power to fulfill by one of the parties, as in case of permanent insanity, does not release the other from the pre-existing obligation. In view oi the law it is still as binding as if the parties were as they were when the marriage was entered into. Perhaps the only element of a con- tract, in the ordinary acceptation of the term, that exists, is that the consent of the parties is necessary to create the relation." See, also, McKinney v. Clarke, 2 Swan (Tenn.) 321, 58 Am. Dec. 59. "Thus, in Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 61 Am, St. Rep. 419, 34 L. R. A. 384, the court says: "The law views mar- riage as being merely a civil contract, not differing from any othei contract, except that it is not revocable or dissoluble at the will ol the parties." See, also, Meister v. Moore, 96 U. S. 76, Woodruff, Cas. 8 HUSBAND AND WIFE. § f involving not only the well-being of the parties, but also the highest interests of society and the state. It par- takes of the character of an institution regulated and controlled by public authority, upon principles of pub- lic policy, for the benefit of the community. And the power of the legislature over marriage as a status is supreme and unlimited, in the absence of some consti- tutional restriction.^* It follows that there are, in effect, three parties to every marriage, — the man, the woman, and the state.^* The man and the woman may determine whether or not they will marry, and, unless prevented by statute, may fix the form of marriage ceremony. They may also, by a contract made before marriage, settle their respective property rights; but after the relation has been voluntarily assumed by them, the law fixes its character and the rights, duties, and obligations incident to it. These may be changed by the legislature, but cannot be determined or modified in any way by the husband and wife. They may marry or not, as they choose, but, having chosen to marry, they must do so on the terms imposed by the state. For convenience we shall hereafter, except when oth- erwise indicated, use the term "parties" to mean simply the husband and wife. 2S; Barkshire v. State, 7 Ind. 389, 65 Am. Dec. 738; Holmes v. Holmes, 6 La. 463, 26 Am. Dec. 482; Fornshill v. Murray, 1 Bland (Md.) 479, 18 Am. Dec. 344; Phillips v. Gregg, 10 V^atts (Pa.) 158, 36 Am. Dec. 158. "Maynard v. Hill, 125 TJ. S. 190, Woodruff, Cas. 23; Wade v. Kalb- fleisch, 58 N. Y. 282, 17 Am. Rep. 250; Magee v. Young, 40 Miss. 164, 90 Am. Dec. 322; State v. Duket, 90 Wis. 272, 63 N. W. 83, 48 Am. St. Rep. 928, 31 L. R. A. 515. 1* The state is a third carty to every contract of marriage, and § 7 NATURE OF MARRIAGE. 9 § 6. Marriage a permanent relation. Except so far as its dissolution is proyided for by law, marriage is a permanent relation. In this respect it differs materially from some of the other personal re- lations, such as that of principal and agent, master and servant, guardian and ward. These relations may exist for a time, and be dissolved at will by the parties. Not so with marriage. It is a union for life. A tem- porary cohabitation, although accompanied by the usual incidents of the marital state, is not marriage.^® § 7. Marriage an exclusive relation. Although plural marriages' are recognized as valid in some countries, marriage, among all enlightened na- tions, is an exclusive relation; that is to say, it is the "voluntary union for life of one man and one woman, to the exclusion of all others."^® It follows that a man or woman who already has one wife or husband cannot lawfully take another. ^^ ias a direct interest therein. Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 81 Am. St. Rep. 302. 15 See Letters v. Cady, 10 Cal. 533; Peck v. Peck, 155 Mass. 479, 30 N. E. 74. Marriage is the union of one man and one woman "so long as they both shall live," to the exclusion of all others, by an obligation which, during that time, the parties cannot, of their own volition and act, dissolve, but which can be dissolved only by au- thority of the state. Roche v. Washington, 19 Ind. 53, 81 Am. Dec. 376. In this case it was held that an Indian marriage, dissoluble at will, was not a valid marriage. But see, contra, Johnson v. John- son, 30 Mo. 72, 77 Am. Dec. 598, in which it was held that perma- nency is not an essential element of marriage by the "law of nature." See, also, 1 Bishop, Mar., Div. & Sep. §§ 306-308. 16 Hyde V. Hyde, 1 Prob. Div. 130; In re Bethell, 38 Ch. Dlv. 220. 17 See post, § 15. CHAPTEE IL THE ESSENTIALS OF A VALID MAERIAGB. I. In General — Consent. § 8. Void and Voidable Marriages Distinguished. 9. Marriage Pounded on Consent. 10. Consent must be to Marriage. II. Capacity of Parties — Impediments to Makriagk. § 11. In General. 12. Precontract. 13. Consanguinity and Affinity. 14. Impotency. 15. Prior Marriage Undissolved. 16. Want of Age. 17. Want of Consent of Parent or Guardian. 18. Want of Reason. 19. Impediments of Race or Social Condition. 20. Impediments Following Divorce. III. Reality or Consent. § 21. In General. 22. Marriage under Duress. 23. Marriage Procured by Fraud — In General. 24. Same — Whether Void or Voidable. 25. Same — Consummated- and Nonconsummated Mar- riages Distinguished. 26. Same — Liability for Fraudulently Procuring Mar- riage. 27. Marriage Entered into by Mistake. IV. Expression of Consent — How Marriage is Effected. § 28. In General. 29. The Agreement to Marry— Breach of Promise. 30, Marriage at Common Law. g S VALIDITY OF MARRIAGE. H 31. Same — Marriage per Verba de Present!. 32. Same — Marriage per Verba de Future cum Copula. 33. Formal Marriage — Statutory Provisions. 34. Same — The Celebrant. 35. Marriage Ceremony without Matrimonial Intent, 36. Motives Inducing Marriage Immaterial. 37. Curative Statutes. 38. Estoppel to Deny Marriage. 1. In General — Consent. § 8. Void and voidable marriages distingpiished. Before considering the essentials of a valid marriage, the distinction between void and voidable marriages should be noted. A marriage is void when it is a mere nullity. Its invalidity may be maintained in any court, in any proceeding, between any parties, whether the question arise directly or collaterally, and whether the parties to the supposed marriage be living or dead. A marriage is voidable when it is affected with some im- perfection for which it may be set aside in a direct pro- ceeding instituted for that purpose during the life- time of both of the parties, it being deemed valid for all purposes unless and until so set aside. When once set aside, it is rendered void from the beginning.^ The origin of this distinction seems to have been as follows: Formerly marriage was governed by two dif- ferent systems of law, administered respectively by the 11 Bl. Comm. 434; Schouler, Dom. Rel. § 14; 1 Bishop, Mar., Dlv. & Sep. §§ 258, 259; Elliott v. Gurr, 2 Phillim. Ecc. 16; Cartwright V. McGown, 121 111. 388, 12 N. E. 737, 2 Am. St. Rep, 105; Stevenson V. Gray, 17 B. Mon. (Ky.) 193; Pornshill v. Murray, 1 Bland (Md.) 479, 18 Am. Dec. 344; Harrison v. State, 22 Md. 468, 85 Am. Dec. 658; Gathings v. Williams, 27 N. C. (5 Ired.) 487, 44 Am. Dec. 49; Williams v. Williams, 63 Wis. 58, 23 N. W. 110,' 53 Am. Rep. 253. 12 . HUSBAND AND WIFE. §. 8 temporal and the spiritual courts. Under each system, certain marriages were con demned as invalid for rear sons growing out of the respective views taken by the two classes of courts as to the nature of marriage. The common-law courts, looking upon marriage merely as a x;ivil contract , held that whatever„3Wild_.iuvalidate_a contract would, in general, invalidate a mai-riage. The ecclesiastical courts, on the other hand, regarding mar- riage as a sacrament, determined its validity according to its character as holy or sinful from a religious stand- point. A person might be competent at common law to contract marriage, and yet a particular marriage en- tered into by him might be invalid according to the ec- clesiastical law because sinful. Thus, an unmarried adult of sound mind was competent, by the common law, to marry, but by the ecclesiastical law he Avould not be permitted to marry, his own sister. Marriages deemed sinful by the ecclesiastical law might be set aside for the safety of the souls of the parties by a suit in a spir- itual court; but until so annulled, they were recognized as valid by both the ecclesiastical and the common law. If, now, the validity of a marriage was questioned be- fore a common-law court on a common-law ground, the court could pronounce the marriage void, if the objec- tion urged were established, for in such case it would be applying its own law. But the common-law court was presumed to have no knowledge of ecclesiastical law, and hence could not determine the validity of a marriage assailed on a canonical ground, but could only pro- nounce the marriage valid, subject to avoidance by the spiritual courts. Thus it was that a court of common § 9 VALIDITY OP MARRIAGE. ■ 13 law would hold that a marriage was void or voidable ac- cording to the character of the invalidating objection as civil or canonical. It should be added that the court would, by prohibition, prevent a spiritual court from annulling a marriage after the death of either of the par- ties, for the judgment could not then tend to their refor- mation.^ The distinction here noted, although important, is frequently overlooked by judges and legislators, and the terms "void" and "voidable" are often used inter- changeably. § 9. Marriage founded on consent. The fundamental principle with reference to which the validity of an alleged marriage is to be tested is that marriage is founded on the voluntary consent of th^ 2 1 BI. Comm. 434, 435; 1 Bishop, Mar.,' DiV. & Sep'. §5 260-268. In Gathings v. WHliams, 2T N. C. (5 Ired.) 487, 44 Am. Dec. 49, Ruffin, C. J., said: "There is a distinction in the law between void and voidable marriages where, even, they were regularly solemnized. The latter, which are sometimes called 'marriages de facto,' are such as are contracted between persons who have capacity to con- tract marriage, but are forbidden by law from contracting it with each other, as to which, therefore, there was a jurisdiction in the spiritual courts to declare the nullity of the marriage. But until the nullity was thus declared, as an existing marriage, it was recog- nized as valid both in the canon and common law; and, as there can be no proceeding in the ecclesiastical court against the parties after their death, or that of one of them, that event virtually makes the marriage good ab Initio to all intents, and the wife and hus- band may have dower and curtesy, and the issue will be legitimate. Co. Lltt. 32, 33. But where the marriage is between persons, one of whom has no capacity to contract marriage at all, as where there is a want of age or understanding, or a .prior marriage still subsist- ing, the marriage is void absolutely and from the beginning, and may be inquired of in any court. For although, in such case, there 14 HUSBAND AND WIFE. § 10 parties.^ If such consent appear, the marriage is valid; without it, the marriage is invalid. All three parties must give their consent. The consent of the state, as a party to every marriage, may ordinarily be presumed, and the law fixes the terms upon which that consent is granted. By accepting these terms, i. e., consenting thereto, in a form recognized by law, the man and woman become husband and wife. But to have this effect the consent must be a legal consent, that is, (1) it must be to a marriage, as defined by law, and not to some special arrangement of the parties; (2) the par- ties must be competent to consent; (3) the consent must be voluntary; (4) the consent must be expressed in some form which the law will recognize. These several ele- ments of a legal consent require particular examina- tion. § 10. Consent must be to marriage. To render the parties husband and wife, that to which they consent must be the relation which the law regards as marriage; an agreement to assume some other re- lation, not constituting marriage, will not have that may be a proceeding in the ecclesiastical court, it is not to dissolve the marriage, but merely, for the convenience of the parties, to find the fact and declare the marriage thereupon to have been void ab initio, and no civil rights can be acquired under such a marriage. It is said to be no marriage, but a profanation of marriage, and the factum is a nullity." s Holmes v. Holmes, 6 La. 463, 26 Am. Dec. 482; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164; Hilton v. Roylance, 25 Utah, 129, 69 Pac. 660, 95 Am. St. Rep. 821, 58 L. R. A. 723. And s-'e, gen- erally, cases cited throughout this chapter. The essence of the con- tract of marriage is the consent of the parties, as in the case of any other contract. Hulett v. Casey, 66 Minn. 327, 61 Am. St. Rep. 419. § 10 VALIDITY OF MARRIAGE. 15 effect. We have already seen that the character of the marital relation is fixed by law, and cannot be changed by the parties. If the relation which they voluntarily assume constitutes a marriage in contemplation of law, the parties are married, although they may not have intended such a result. On the other hand, if this re- lation does not constitute a legal marriage, the parties are not married, although they may have intended to become married, and may consider and call themselves husband and wife. Thus, a man already married to one woman may go through the marriage ceremony with another woman, and afterwards cohabit with her as his wife, both parties intending marriage, but they are nevertheless not married, for a polygamous relation is not a legal marriage.* Again, an agreement to cohabit temporarily as man and wife does not constitute mar- riage, for marriage is a permanent relation.* But if the agreement is to assume substantially the re- lation of husband and wife, the parties will be ad- judged such, notwithstanding some collateral stipula- tion by which they undertake to modify or limit the scope of marriage as defined by law. Such a stipulation is ^void, o r mere surplusage. Thus, an agreement by the man, before marriage, that he will not live with the woman after the marriage, is void, and does not < See post, § 16. Letters v. Cady, 10 Gal. 533. Thus, a written contract to enter into a "copartnership on the basis of the true marriage relation, * * * [and] to continue this copartnership so long as mutual affection shall exist," is not a marriage, though followed by co- habitation. Peck V. Peck, 155 Mass. 479, 30 N. E. 74. See, also, Randall's Gase, 5 Glty H. Rec. (N. Y.) 141. L6 HUSBAND AND WIFE. § 11 affect the validity of the marriage.^ So, also, a mar- riage according to the rites of the Mormon church, by which the parties are "sealed for time and eternity,"^ is good; that part of the contract and ceremony which relates to eternity being regarded as mere surplusage.^ It may be a matter of difficulty at times to determine whether the variation introduced by the parties goes to the essence of the marital relation as defined by law, and therefore defeats the marriage, or constitutes a non- essential variation, which may be disregarded. But in any case the rule to be applied is plain. If the agree- ment is to assume essentially the marital relation, the parties are married, and any terms affecting the rela^ tion, not authorized by law, are void; but if an essential ■element of a legal marriage be lacking, there is no mar- riage, although all the other elements of that relation may be present.* II. Capacity op Parties — Impediments to Marbiage. § 11. In general. There can, of course, be no valid marriage unless the parties are competent to give their consent. They must Brooke v. Brooke, 60 Md. 524; Franklin v. franklin, 154 Mass. 515; 26 Am. St. Rep. 266. In both these cases the stipulation was followed by a regular marriage ceremony in due form. See, also, Barnett v. Kimmell, 35 Pa. 13. It seems clear that any preliminary agreement inconsistent with marriage is of no effect where a mar- riage is afterwards solemnized in good faith. Hills v. State, 61 Neb. 589, 85 N. W. 836, 57 L. R. A. 155. 1 Hilton V. Roylance, 25 Utah, 129, 69 Pac. 660, 58 L. R. A. 723. In this case, however, the court stated that if the "sealing" was for eternity only, there would be no valid marriage. 8 See 1 Bishop, Mar., Div. & Sep. §§ 300-304. For a curious case, see State v. Walker, 36 Kan. 297, 59 Am. Rep. 556. § 11 VALIDITY OP Carriage. 17 be "two persons of the opposite sexes, without disqualifi- cation of blood or condition, both mentally competent and physically fit to discharge the duties of the relation, neither of them being bound by a previous nuptial tie."*^ As has already been stated, the disabilities to contract marriage were divided by the English law into two classes: (1) Canonical impediments, — so called be- cause they were derived from the canon law. They were cognizable by the ecclesiastical courts, which formerly had jurisdiction of matrimonial causes. These impedi- ments rendered the marriage voidable merely, and not void. (2) Civil or legal disabilities. These were the disabilities created or enforced by\the municipal laws, and were cognizable by the temporal courts. They ren- dered the marriage void.* The distinction is of no prac- tical importance in this country. The canonical im- pediments are (a) precontract; (b) consanguinity or afiinity; (c) incurable impotency. The legal impedi- ments are (a) prior marriage; (b) want of age; (c) want of consent of parent or guardian; (d) want of reason. To these may be added (e) impediments of race or social condition; and (f) impediments following divorce. • In all of the states, statutes have been passed declar- ing who shall and who shall not be competent to marry, and pronouncing marriages contracted by incompetent persons invalid. The statutes vary slightly as to what constitutes a disability, and also as to its effect upon 8a Schouler, Dom. Rel. § 15. Ante, § 8; 1 Bl. Comm. 434; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41. Long, D. R.— 2, 18 HUSBAND AND WIFE. § 13 the marriage. The original distinclion between the ca- nonical and civil disabilities is disregarded, and the stat- utes determine what marriage shall be void and void- able, respectively. In many cases, also, they declare a' particular marriage void only from the time of decree, thus introducing a new degree of invalidity, a marriage so dissolved being strictly neither void nor voidable, in the original sense, but corresponding exactlv to a valid marriage which has been dissolved by divorce. We shall now consider the several impediments and disabilities in detail. § 12. Precontract. This impediment, rendering a marriage voidable mere- ly, existed where one of the parties was under a prior agreement to marry a third person, or had already mar- ried a third person, but not according to the prescribed forms. It is unknown in America, and the law on the subject is obsolete.^" § 13. Consanguinity and affinity. Consanguinity is relationship by blood; affinity is relationship by marriage. Marriage, between persons nearly related in either way is deemed incestuous, and is prohibited by law. Such marriages, especially be- tween persons very nearly related, have always been regarded with peculiar abhorrence by all enlightened peoples, though the prohibited degrees of relationship are not always the same. In England the intermarri- age of near relatives was forbidden by the ecclesiastical 10 1 Bl. Comm. 434, 435; 1 Bishop, Mar., Div. & Sep. § 280. § 13 VALIDITY OF MARRIAGE. 19 law, which in this particular was based upon the Leviti- cal law as found in the eighteenth chapter of Leviticus. The ecclesiastical law, however, included in its prohibi- tion persons competent to marry by the Levitical law, and by degrees the prohibition was extended beyond all reasonable bounds. This abuse was corrected by statutes passed in the reign of Henry VIII., and later, so that at present only persons nearer related than first cousins are prohibited from marrying in England.^^ The subject is regulated in all the states by statutes which define the prohibited degrees. In several states the in- termarriage of first cousins is prohibited, but generally the prohibition does not extend so far.^^ The prohibi- 11 1 Bl. Comm, 434; Schouler, Dcm. Rel. § 16; 1 Bishop, Mar., Div. & Sep. § 730 et seq.; Butler v. Gastrin, Gibb. 156. The opinion in this case contains an extensive discussion of the subject. "Tte church extended the impediments to marriage further than was pleasing to the civil power. Consanguinity and affinity, even to the seventh degree of the canonical reckoning, which might include the four- teenth degree of the civil law, were made obstructions to the nup- tials. * * * And an aiflnity nearly equivalent to consanguinity was also created by commerce without marriage, so that a person guilty of fornication could not marry one related to the particeps criminis within a certain part of the prohibited degrees. These impediments seemed not the less burdensome though, as an offset, they were often made the means of dissolving uncongenial mar- riages, indissoluble by the general ecclesiastical law. Persons within the prohibited degrees might be permitted to marry, on cause shown, by special dispensations from the head of the church." 1 Bishop, Mar., Div. & Sep. § 262. 12 See 1 Stimson, Am. St. Law, § 6111. In England, a man cannot marry his deceased wife's sister. Brook v. Brook, 9 H. L. Gas. 193; Ex parte Naden, 9 Oh. App. 670. And this was formerly the law in Virginia (Com. v. Leftwich, 5 Rand. 657; Kelly v. Scott, 5 Grat. 479), where, also, a man could not marry his brother's widow (Com. V. Ferryman, 2 Leigh, 717). The law has since been changed Id Virginia, and it is believed that such marriages are not now invalid in any state. 20 HUSBAND AND WIFE. § 14 tion includes relatives of the half as well as the whole blood,!^ and extends to persons of illegitimate as well as of legitimate birth.^* By the ecclesiastical law, marriages within the pro- hibited degrees were voidable merely, and not void,*^ but by statute in England such marriages were in 1835 declared to be absolutely void.'« This is also the general trend of the American statutes, though under some stat- utes they have been held voidable merely." § 14. Impotency. An impotent person, physically incapable of consum- mating the marriage, cannot contract a valid marriage. By impotency is meant, not mere barrenness or sterility, but incapacity preventing complete and natural sexual . intercourse. The incapacity must exist at the time of the marriage, and must continue and be incurable, to authorize a decree of nullity.^ ^ But a decree will be 13 Reg. V. Brighton, 1 Best & S. 447, 101 E. C. L. 447; Campbell v. Crampton, 18 BlatcM. 150, 2 Fed. 417, 8 Abb. N. C. (N. Y.) 363. i*Reg. V. Brighton, 1 Best & S. 447, 101 E. C. L. 447; Morgan v. State, 11 Ala. 289. 10 Elliott V. Gurr, 2 Phillim. Ecc. 16. See, also, Sutton v. "Warren. 10 Mete. (Mass.) 451, Woodruff, Cas. 46. 10 Stat. 5 & 6 Wm. IV. c. 54; Brook v. Brook, 9 H. L. Cas. 193, 233. 17 See 1 Stimson, Am. St. Law, §§ 6112, 6113; Campbell v. Cramp- ton, 18 Blatchf. 150, 2 Fed. 417, 8 Abb. N. C. (N. Y.) 363; Harrison v. State, 22 Md. 468, 85 Am. Dec. 658; Baity v. Cranfill, 91 N. C. 293, 49 Am. Rep. 641; Bowers v. Bowers, 10 Rich. Eq. (S. C.) 551, 73 Am. Dec. 99. See, generally, 19 Am. & Eng. Enc. Law (2d Ed.) 1173- 1175, and note in 79 Am. St. Rep. 380. 18 Brown v. Brown, 1 Hagg. Ecc. 523; G. v. G., L. R. 2 Prob. Div. 287; Anon., 89 Ala. 291, 18 Am. St. Rep. 116; G. v. G., 33 Md. 401, 3 Am. Rep. 183; Payne v. Payne, 46 Minn. 467, 49 N. W. 230, 24 Am. St. Rep. 240; Devanbagh v. Devanbagh, 5 Paige (N. Y.) 554, 28 Am. Dec. 443. See, also, Powell v. Powell, 18 Kan. 371, 26 Am. Rep. 774, § 14 VALIDITY OF MARRIAGE. 21 granted, although the impotency might he cured by an operation not dangerous to life, where the afflicted party refuses to submit to the operation.^* The mere fact that the parties were of advanced age at the time of their marriage will not defeat a suit to avoid the marriage on the ground of impotency, but this fact may strongly incline the court against granting the re- lief sought.^" Impotency is one of the canonical impediments, and renders the marriage voidable merely, and not void. The validity of a marriage, therefore, cannot be im- Woodrufi, Gas. 41. The mere fact that a woman, by reason of the removal of her ovaries, is unable to bear children, does not render her incapable of marriage. Wendel v. Wendel, 30 App. Div. 447, 52 N. Y. Supp. 72; reversing 22 Misc. 152, 49 N. Y. Supp. 375. Preg- nancy of the woman at the time of the marriage does not consti- tute physical incapacity to marry. Franke v. Franke (Gal.) 31 Pac. 571, 18 L. R. A. 375. In Ryder v. Ryder, 66 Vt. 158, 28 Atl. 1029, 44 Am. St. Rep. 833, it was held that chronic and incurable syphilis, rendering inter- course dangerous to the health of the other party, though not im- possible, constitutes physical incapacity warranting the annulment of the marriage. In this case a decree was granted to the husband, although the wife, who was so afflicted at the time of the marriage, gave birth to a child which afterwards died of the disease. See, also. Smith v. Smith, 171 Mass. 404, 50 N. B. 933, 68 Am. St. Rep. 440. It is otherwise, however, if the disease is not contagious, and will yield to treatment. Vondal v. Vondal, 175 Mass. 383, 56 N. E. 586, 78 Am. St. Rep. 502. 19 L. V. L., 7 Prob. Div. 16. 20 W. V. H., 2 Swab. & T. 240; Briggs v. Morgan, 2 Hagg. Gonsist. 324, 3 Phillim. Ecc. 325; Shafto v. Shafto, 28 N. J. Eq. 34; Fulmer V. Fulmer, 13 Phila. (Pa.) 166. In Brown v. Brown, 1 Hagg. Ecc. 523, Sir John Nicholl said: "A man of sixty, who marries a woman of fifty-two, should be contented to take her tanquam soror." Puf- fendorf considers such persons as "honorary members of the mat- rimonial state, enjoying a title without an office." Puff. lib. 6, c. 1, 25, quoted in Fulmer v. Fulmer, 13 Phila. (Pa.) 166. 22 HUSBAND AND WIFE. § 15 peached on this ground after the death of one of the parties.^^ § 15. Prior marriage undissolved. Polygamous or bigamous marriages are not only in- valid by our law, but render the parties thereto sub- ject to criminal prosecution. A valid prior subsisting marriage is therefore an impediment to a second mar- riage to a different spouse. A marriage contracted while one of the parties has a husband or wife living is an absolute nullity, and, except for the statutory modification presently to be noted, is good for no pur- pose whatsoever.^^ It is generally held that the fact that the second marriage was contracted in good faith, in the honest belief that the first marriage had been dissolved by death^^ or divorce,^* does not render the second mar- 21 A. V. B., L. R. 1 Prob. Div. 559. See, also, Burtis v. Burtis, Hopk. Ch. (N. Y.) 557, 14 Am. Dec. 563. For a full discussion oj the subject of impotency in matrimonial law, see 19 Am. & Eng. Enc. Law (2d Ed.) 1165-1169, and extensive note in 28 Am. Dec. 446- 451. 22Halbrook v. State, 34 Ark.- 511, 36 Am. Rep. 17; Cartwright v. McGown, 121 111. 388, 12 N. E. 737, 2 Am. St. Rep. 105; Potter v. Clapp, 203 111. 592, 68 N. E. 81, 96 Am. St. Rep. 322; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41; Barth v. Barth, 102 Ky. 56, 42 S. W. 1116, 80 Am. St. Rep. 335; Voorhees v. Voor- hees, 46 N. J. Eq. 411, 19 Am. St. Rep. 404; Collins v. Voorhees, 47 N. J. Eq. 315, 20 Atl. 676, 24 Am. St. Rep. 412, Woodruff, Cas. 48; Fenton v. Reed, 4 Johns. (N. Y.) 52, 4 Am. Dec. 244; Gathings v. Williams, 27 N. C. (5 Ired.) 487, 44 Am. Dec. 49; Stewart v. Van- dervort, 34 W. Va. 524, 12 S. E. 736, 12 L. R. A. 50; Williams v. Wil- liams, 63 Wis. 58, 23 N. W. 110, 53 Am. Rep. 253; notes in 44 Am. Dec. 54; 46 Am. Dec. 130; 79 Am. St. Rep. 378. The supreme court has held Mormon polygamous marriage void and criminal. Reyn- olds V. United States, 98 U. S. 145. 23 Glass V. Glass, 114 Mass. 563. § IS VALIDITY OP MARRIAGE. 23 riage valid. A number of cases involving this question have arisen where a person whose husband or wife has been absent and not heard from for a number of years marries again, supposing the absent consort to be dead, when, in fact, he or she is alive. Except where the case is affected by statute, it is plain enough that the second marriage so contracted is absolutely void. A mere be- lief that one is competent to marry, when he is not, cannot remove the disability. The rule of the common law is found to work great hardship, however, where the second marriage was contracted in good faith ; and in several states it is provided by statute that where any person whose husband or wife has b een absent for five successive years , without being known to be living, shall marry during the lifetime of the absent party, the subsequent marriage shall be void only from the time that its nullity shall be pronounced by a court of com- petent authority. Under these statutes, the second mar- riage is valid unless and until set aside by a suit brought for that purpose by one of the parties to the marriage,^® or, it seems, by the absentee, upon his or her return.^^ 24 Poole V. Pf.ople, 24 Colo. 510, 52 Pac. 1025, 65 Am. St. Rep. 245; Gordon v. Gordon, 141 III. 160, 30 N. E. 446, 33 Am. St. Rep. 294, 21 L. R. A. 387. 25 Jaxikson v. Jackson, 94 Cal. 446; Charles v. Charles, 41 Minn. 201, 42 N. W. 935; Gall v. Gall, 114 N. Y. 109; Price v. Price, 124 N. Y. 589, 27 N. E. 383. The rule of the statute is based upon the presumption that the absentee is dead, the common-law period of seven years being shortened to five. Charles v. Charles, 41 Minn. 201. 20 See Valleau v. Valleau, 6 Paige (N. Y.) 207; Gall v. Gall, 114 N. Y. 109. The absentee cannot procure a divorce from his remarried consort on the ground that the cohabitation under the second mar- riage was adulterous, unless such cohabitation was continued after 24 HUSBAND AND WIFE. § 15 But since the law cannot sanction polygamy by giving effect to both marriages at the same time, the first mar- riage is considered as suspended or placed in abeyance until its reinstatement by the setting aside of the second marriage.^^ In order to come within the protection of these statutes it must appear that the second marriage was contracted in good faith, in the belief that the ab- sentee was dead.^® Another class of statutes, more gen- eral in terms, provide that marriages prohibited by law on account of either of the parties having a former wife or husband then living shall be void from the time they are so declared by a decree of divorce or nullity.^® In other states, however, the common-law rule is affirmed by statute, and all such marriages are declared to be abso- lutely void, without any decree of divorce or other legal process.^" Again, other statutes, while not making valid the second marriage, protect the parties from prosecu- tion for bigamy, where the marriage was contracted in the second marriage had been set aside by judicial decree. Valleau V. Valleau, 6 Paige (N. Y.) 207. 2T Gall V. Gall, 114 N. Y. 109. 28 Gall V. Gall, 114 N. Y. 109. 29 Stewart v. Vandervort, 34 W. Va. .524, 12 S. E. 736, 12 L. R. A. 50. 30 Glass V. Glass, 114 Mass. 563. This is the law in Virginia. Code Va. 1887, § 2252; Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. 736, 12 L. R: A. 50. In this case the court said: "But though such a marriage is void without judicial sentence of its nullity, for obvious reasons, such sentence is prudent and advisable, and the same statute, in section 4 [Code Va. 1887, § 2255], gave either party right to sue to obtain such a decree." The fact that the statute makes provision for annulling such marriages does not alter the statutory declaration that the marriage is void. Drummond v, Irish, 52 Iowa, 41. § 16 VALIDITY OP MARRIAGE. 25 good faith,^^ or make the issue of such marriage legiti- mate.^^ The dissolution of the prior marriage by a divorce granted after the second marriage will not render the second marriage valid, fot the decree of divorce becomes operative only when rendered, and does not relate back.^^ And the same rule would, of course, apply where the prior marriage is dissolved by death. But in either case, the continued cohabitation of the parties to the second marriage after the dissolution of the first may raise a presumption of a marriage by consent after the removal of the disability created by the former marriage.^* A marriage contracted after a divorce of one of the parties, which for any reason is void,^^ or after a divorce which is not perfected or fully operative,*® is unlawful. 31 state V. Zichfeld, 23 Nev. 304, 46 Pac. 802. Such a statute merely protects the party marrying again from prosecution for big- amy; it does not make the second marriage valid. Fenton v. Reed, i Johns. (N. Y.) 52, 4 Am. Dec. 244. But in several cases such stat- utes appear to have been construed as rendering the second mar- riage valid. See Strode v. Strode, 3 Bush (Ky.) 227, 96 Am. Dec. 211; Hiram v. Pierce, 45 Me. 367, 71 Am. Dec. 555. 32 Leonard v. Braswell, 99 Ky. 528, 36 S. W. 684; Hiram v. Pierce; 45 Me. 367, 71 Am. Dec. 555 (construing Massachusetts statute); Glass V. Glass, 114 Mass. 563. 33Teter v. Teter, 88 Ind. 494, 101 Ind. 129, 51 Am. Rep. 742; Har ris V. Harris, 85 Ky. 49; Hunt's Appeal, 86 Pa. 294. See In re Cook, 77 Cal. 220, 17 Pac. 923, 19 Pac. 431, 11 Am. St. Rep. 267; In re McLaughlin's Kstate, 4 V/ash. 570. 31 See post, § 52. 35 Hood V. State, 56 Ind. 263, 26 Am. Rep. 21; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260; Van Fossen v. State, 37 Ohio St 317, 41 Am. Rep. 507; Allen v. Maclellan, 12 Pa. 328, 51 Am. Dee 608; Hilton v. Roylance, 25 Utah, 129, 69 Pac. 660, 95 Am. St. Rep 821, 58 L. R. A. 723; St. Sure v. Lindslelt, 82 Wis. 346, 52 N. W 308, 33 Am. St. Rep. 50. 30 State V. Eaton, 85 Wis. 587, 55 N. W. 890, 39 Am. St. Rep. 867 And see post, § 20. 26 HUSBAND AND WIFE. § 16 § 16. Want of age. Children of immature ind,c;ment and physical develop- ment are plainly incapable of giving an intelligent con- sent to marriage, or of discharging the duties of the mar- riage relation. The age for contracting marriage, known as the "age of consent," is fixed by the common law at fourteen years in males and twelve in females. The marriage of persons of this age is as valid as the mar- riage of adults; but if either party is below the age of seven years, the marriage is a nullity. If both parties are over seven, hut either is under the age of consent, the marriage, though not void, is voidable, and may be avoid- ed by either party without any judicial decree. Such a marriage is said to be inchoate or imperfect. If both parties are under the age of consent, it may be avoided by either when both have reached that age. If one is below and the other above the age of consent, either may disaffirm when the one under age has reached the age of twelve or fourteen, as the case n\ay be. If, when both have reached the age of consent, they affirm the mar- riage, it is thereafter binding without a new ceremony. Continuing to cohabit is a sufficient affirmance. The common-law rule as to the age of consent obtains in some states, but in others it has been changed by stat- ute.'^ In some states the statutes provide that, where 37 1 Bl. Comm. 4.'36; 1 Bishop, Mar., Div. & Sep. §§ 560-586; Schou- ler, Dom. Rel. § 20; 16 Am. & Bng. Enc. Law (2d Ed.) 263-265; not© in 79 Am. St. Rep. 374; Smith v. Smith, 84 Ga. 440, 11 S. E. 496, 8 L. R. A. 362; Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462, 32 L. R. A. 848; Hevvey v. Moseley, 7 Gray (Mass.) 479, 66 Am. Dec. 515; People v Slack, 15 Mich. 193; State v. Lowell, 78 Minn. 166, 80 N. W. 877, 79 Am. St. Rep. 358, 46 L. R. A. 440; Koonce v. Wal- lace, 52 N. C. (7 Jones) 194, WoodrufC, Cas. 37; Fisher v. Bernard, § 18 VALIDITY OP MARRIAGE. 27 one of the parties is above the age of consent, the mar- riage shall be binding upon such party unless the other party elects to disafifirm it.^® § 17. Want of consent of parent or guardian. By the civil law, the consent of parent or guardian was required in the case of the marriage of infants, but such consent was not necessary at common law.^* In some states such consent is required by statute; but this requirement is generally directory merely, and its nan- observance does not invalidate the marriage.^" § 18. Want of reason. The parties must be of sufficient mental capacity to give an intelligent consent. The marriage of a person mentally incapable of giving such consent is invalid.*^ 65 Vt. 663, 27 Atl. 316, Woodruff, Cas. 40; Eliot v. Eliot, 77 Wis. 634, 46 N. W. 806, 10 L. R. A. 568; Eliot v. Eliot, 81 Wis. 295, 51 N. W. 81, 15 L. R. A. 259. As to the time when the marriage may be avoided, it seems that the better opinion now is that parties marry- ing before the age of consent may dissent to the marriage, and thus avoid it while still under age; but at common law, if one of the par- ties is above age, he cannot disaflirm the marriage until the other party arrives at the proper age. Tyler, Inf. & Gov. (2d Ed.) 134, 135; Eliot v. Eliot, 77 Wis. 634, 46 N. W. 806, 10 L.' R. A. 568. 38 People V. Slack, 15 Mich. 193. 39 1 Bl. Comm. 437. 40 1 Bishop, Mar., Div. & Sep. §§ 551-559; 19 Am. & Eng. Ene. Law (2d Ed.) 1190; note in 79 Am. St. Rep. 375; Hiram v. Pierce, 45 Me. 367, 71 Am. Dec. 555; Hervey v. Moseley, 7 Gray (Mass.) 479; 66 Am. Dec. 515; State v. Bittick, 103 Mo. 183, 15 S. W. 325, 23 Am. St. Rep. 869; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791. See, also, Carskadden v. Poorman, 10 Watts (Pa.) 82, 36 Am. Dec. 145. 41 1 Bl. Comm. 438; True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164; Cole V. Cole, 5 Sneed (Tenn.) 57, 70 Am. Dec. 275; and cases cited in notes immediately following. See exhaustive note in 40 L. R. A. 737. See, also, note in 44 Am. Dec. 55. "It was formerly adjudged 28 HUSBAND AND WIFE. .§18 There has been some difference of opinion as to what degree of mental capacity is necessary to enable a per- son to marry. Some authorities hold that the party must have the same degree of mental capacity as is re- quired for ordinary contracts.*^ "Every case," says Mr. Schouler, "stands on its own merits, but the usual test applied in the courts is that of fitness for the general transactions of life; for, it is argued, if a man is incapa- ble of entering into other contracts, neither can he con- tract marriage. This test is sufflciently precise for most purposes ; yet we apprehend the real issue is whether the man is capable of entering understandingly into the re- lation of marriage. "^^ The prevailing test at present, and, it Avould seem, the true test, is the one here suggested, namely, whether the party had sufficient mental capacity to understand the nature and effect of the marriage contract, and the that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination, since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything. And therefore the civil law judged much more sensibly when it made such deprivations of rea- son a previous impediment, though not a cause of divorce if they happened after marriage." 1 Bl. Comm. 438. The doctrine that the marriage of an idiot was valid seems to have grown out of the no- tion of the ecclesiastics that the ceremony of marriage was a sacra- ment, rather than a contract. Upon this theory, the validity of the marriage was made to depend upon the fact that the church had de- clared the parties to be married, rather than upon the consent ol the parties themselves, — a doctrine absolutely sound if it be conceded that marriage is a sacrament, rather than a contract. See Turner v. Meyers, 1 Hagg. Consist. 414; Cole v. Cole, 5 Sneed (Tenn.) 57, 70 Am. Dec. 275. 42 See Turner v. Meyers, 1 Hagg. Consist. 414; Cole v. Cole, 5 Sneed (Tenn.) 57, 70 Am. Dec. 275. 43 Schouler, Dom. Rel. § 18. 5 18 VALIDITY OF MARRIAGE. 29 rights, duties, and responsibilities growing out of the marriage relation ;** and this, it seems, does not require a high degree of intelligence.^^ Troof that a person is incapable of making ordinary contracts, or of attending to the general transactions of life, will, of course, raise a strong presumption that he is incapable, likewise, of contracting marriage, and will usually be sufficient to support a decree of nullity.^" A person is not incompe- tent to marry because deaf and dumb.*^ To constitute an impediment, the mental incapacity must exist at the time of the marriage.** Insanity aris- ing after marriage does not invalidate the marriage, and is no ground for divorce unless, as is rarely the case, it is so provided by statute.*® The marriage of a lunatic during a lucid interval is valid.®" Conversely, the marriage of a person, normally 44 Durham v. Durham, 10 Prob. Div. 80; Orchardson v. Cofield, 171 111. 14, 49 N. B. 197, 63 Am. St. Rep. 211, 40 L. R. A. 256. See, also, Lewis V. Lewis, 44 Minn. 124, 46 N. W. 323, 20 Am. St. Rep. 559, Woodruff, Cas. 44; Nonnemacher v. Nonnemacher, 159 Pa. 634, 28 Atl. 439. It seems that it is not necessary that the party should understand all the duties, obligations, responsibilities, and rights growing out of the relation, but he must have sufficient mental ca- pacity to understand the nature of the marriage relation, and of the marriage contract, and that he takes upon himself the duties, obli gations, and responsibilities which the law imposes as a result ol that contract, whatever they are. St. George v. Biddeford, 76 Me. 593. 45 Durham v. Durham, 10 Prob. Div. 80. 46 See, generally, Foster v. Means, 1 Speers Eq. (S. C.) 569, 42 Am, Dec. 332; Cole v. Cole, 5 Sneed (Tenn.) 57, 70 Am. Dec. 275. 47 Harrod v. Harrod, 1 Kay & J. 4. 4s Nonnemacher v. Nonnemacher, 159 Pa. 634, 28 Atl. 439. 49Hamaker v. Hamaker, 18 111. 137, 65 Am. Dec. 705; Powell v. Powell, 18 Kan. 371, 26 Am. Rep. 774, Woodruff, Cas. 41; Lewis v. Lewis, 44 Minn. 124, 46 N. W. 323, 20 Am. St. Rep. 559. BO 1 Bishop, Mar., Div. & Sep. § 603; Cummington v. Belchertown 149 Mass. 223, 21 N. E. 435, 4 L. R. A. 131. 30 HUSBAND AND WIFE. § Ig sane, during a period of temporary insanity, is invalid.^^ Thus, drunkenness rendering a party non compos mentis, so that he does not Icnow what he is doing, and is, for the time being, deprived of reason, renders the marriage in- valid; but a degree of intoxication less than that stated will not invalidate the marriage.®^ The marriage of a person mentally incapable of con- senting thereto is generally considered an absolute nul- lity, and no decree 6f avoidance is necessary .^^ Never- theless, for the sake of the good order of society and the peace of mind of all concerned, it is deemed expedient that a decree of nullity be obtained.^* And in some states it is provided by statute that the marriage of a lunatic shall be void only from the time when it is so declared by judicial decree.^^ It has been held that a lunatic, on regaining his reason, may affirm a marriage entered into by him when insane. 51 1 Bishop, Mar., Dlv. & Sep. § 604. 62 prine v. Prine, 36 Fla. 676, 18 So. 781, 34 L. R. A. 87. 53 Orchardson v. Cofield, 171 111. 14, 49 N. E. 197, 63 Am. St. Rep 211, 40 L. R. A. 256; Powell v. Powell, 18 Kan. 371, 26 Am. Rep. 774 Woodruff, Cas. 41; Jenkins v. Jenkins, 2 Dana (Ky.) 102, 26 Am Deo. 437; Unity y. Belgrade, 76 Me. 419; Crump v. Morgan, 38 N. C (3 Ired. Eq.) 91, 40 Am. Dec. 447; Sims v. Sims, 121 N. C. 297, 28 S E. 407, 61 Am. St. Rep. 665, 40 L. R. A. 737; Poster v. Means, 1 Speers Eq. (S. C.) 569, 42 Ata. Dec. 332. The invalidity of a mar riage on the ground of the insanity of one of the parties may be sei up in a suit brought after the death of such party. Orchardson v Cofleld,'171 111. 14, 49 N. B. 197, 40 L. R. A. 256; Jenkins v. Jenkins 2 Dana (Ky.) 102, 26 Am. Dec. 437; Foster v. Means, 1 Speers Eq (S. C.) 569, 42 Am. Dec. 332. See, also, State v. Setzer, 97 N. C 252, 2 Am. St. Rep. 290. 6-12 Kent, Comm. 76; Powell v. Powell, 18 Kan. 371, 26 Am. Rep 774. 56 1 Stimson, Am. St. Law, § 6113. g 18 VALIDITY OF MARRIAGE. 31 and this without any new solemnization.^" It is sub- mitted that this is not correct. Considering the mar- riage as void (as it is usually held to be), it cannot be ratified.^'' This case differs from that of an infant's marriage, for such a marriage is not void, but merely imperfect or "inchoate," and so may be ratified. The true view would seem to be that what is relied upon as a ratification by the lunatic, if it can have any effect, can operate only as a new marriage at common law, and not as a ratification of a marriage which, being void, could not be ratified. This question is now settled in some states by statutes providing that the marriage shall not be void or voidable, or be annulled where the par- ties have cohabited after the lunatic has been' restored to reason.^* The' burden of proving the invalidity of a marriage by reason of the insanity of one of the parties thereto rests upon the party asserting itf^ and the proof of in- sanity should be very clear. Every consideration of pol- icy and humanity demands that a contract so essentially connected with the peace and happiness of individuals and families, and the well-being of societyy should not be 56 Cole V. Cole, 5 Sneed (Tenn.) 5t, 70 Am. Dec. 275. See Prlne V. Prine, 36 Pla. 676, 18 So. 781, 34 L. R. A. 87; 1 Bishop, Mar., Dlv. & Sep. § 614 et seq. B7 Sims V. Sims, 121 N. C. 297, 28 S. B. 407, 61 Am. St. Rep. 665, 40 L. R. A. 737. 68 1 Stlmson, Am. St. Law, § 6113. 59 Nonnemacher v. Nonnemacher, 159 Pa. 634, 28 Atl. 439 ; Cole v. Cole, 5 Sneed (Tenn.) 57, 70 Am. Dec. 275. Every presumption Is In favor of the mental capacity of the parties to contract marriage, and the burden of proving incapacity is upon the party impeaching the marriage. Harrod v. Harrod, 1 K. & J. 4. 32 HUSBAND AND WIFE. § 19 annulled on this or any other ground not clearly made out.^o § 19. Impediments of race or social condition. Differences of race or social rank constitute no im- pediment to marriage at common law, or under the pres- ent law of England. Nor do differences of rank consti- tute an impediment in this country ; but in a number of the states, marriages between white persons and per- sons of negro blood are prohibited by statute, and are invalid,®^ and generally, in these states, it is made a criminal offense for a white person and a negro to inter- marry.®^ Statutes prohibiting miscegenation have been held valid, within the United States constitution, by sev- era I state courts and inferior federal courts,®^ and would doubtless be sustained if submitted to the United States supreme court.*'* 00 Cole V. Cole, 5 Sneed (Tenn.) ST, 70 Am. Dec. 275. oil Stlmson, Am. St. Law, § 6112; Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131 (statute not now in force) ; Greenhow v. James, 80 Va. 636, 56 Am. Rep. 603. See, also, Barkshire v. State, 7 Ind. 389, 65 Am. Dec. 738. 62 Green v. State, 58 Ala. 190, 29 Am. Rep. 739; State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42; State v. Jackson, 80 Mo. 175, 50 Am. Rep. 499; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683; State v. Bell, 7 Baxt. (Tenn.) 9, 32 Am. Rep. 549; Prasher v. State, 3 Tex. App. 263, 30 Am. Rep. 131; Kinney v. Com., 30 Grat. (Va.) 858, 32 Am. Rep. 690. 03 In re Hobbs, 1 Woods, 537, Fed. Cas. No. 6,550; State v. Tutty, 41 Fed. 753, 7 L. R. A. 50; Green v. State, 58 Ala. 190, 29 Am. Rep. 739, overruling Burns v. State, 48 Ala. 195, 17 Am. Rep. 34; State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42; State v. Jackson, 80 Mo. 175, 50 Am. Rep. 499; Prasher v. State, 3 Tex. App. 263, 30 Am. Rep. 131. 0* In Pace v. Alabama, 106 U. S. 583, it was held that a statute I 19 VALIDITY OF MARRIAGE. 33 The statutes usually designate the persons who shall be deemed negroes or colored persons, within their mean- ing, and include not only full-blooded negroes, but also all other persons with an admixture of negro blood, vary- ing from one-fourth to one-eighth. Under these statutes, a person of negro blood amounting to less than the pro- portion fixed by the statute is legally white, and cannot be prosecuted for marrying a person of pure white blood, such marriages being lawful.®^ -Unless prohibited by statute, the marriage of a white person with an Indian is valid f^ but in a few states such marriages are made void by statute.®^ And in several of Alabama prohibiting the intermarriage or living together in adul- tery or fornication of a white person and a negro, was not in con- flict with the constitution of the United States, although a greater punishment was provided for living together in adultery and forni- cation where the parties were of different races than where they were of the same race. In this case the parties do not appear to have been intermarried, and the question as to the constitutionality of that part of the statute relating to intermarriage was not in- volved. ssMcPherson v. Com., 28 Grat. (Va.) 939; Jones v. Com., 80 Va. 538. 66 Wells V. Thompson, 13 Ala. 793, 48 Am. Dec. 76. The question of the validity of the marriage of a white person and an Indian has arisen in several cases in which the validity of the marriage was attacked, not on the ground that the parties were of different race, but on the ground that the marriage had not been properly celebrated, or that a marriage in the Indian sense was not a true marriage. Such a marriage was sustained in Meister v. Moore, 96 U. S. 76; Johnson v. Johnson, 30 Mo. 72, 77 Am. Dec. 598. The validity of intermarriages of whites and Indians has been recognized by congress by the act of August 9, 1888 (25 Stat. 392; 3 Fed. Ann. St. 517). 67 In re Walker's Estate (Ariz.; 1896) 46 Pac. 67; In re Wilbur's Estate, 8^ Wash. 35, 35 Pac. 407, 40 Am. St. Rep. 886. Long, D. R.— 3. 34 HUSBAND AND WIFE. § 20 states marriages of white persons witli Mongolians are declared void.®* In this connection should be noted the marriage of slaves. A slave, being subject to his master's will, had not the legal capacity to contract marriage, yet the so- called marriages of slaves had a certain moral force, and were recognized for certain purposes, and, after the abo- lition of slavery, existing slave marriages were confirmed by various constitutional or statutory provisions.®" § 20. Impediments following divorce. Where a marriage is dissolved by a decree of absolute divorce, either party may marry again, although the ex- consort be still living, unless prohibited by statute. But in several states the remarriage of both parties for a cer- tain period, or of the guilty party during the lifetime of the other, or for a tei*m of years, or to his or her partner in guilt, or without permission of court, is prohibited by statute, the terms of the prohibition varying in the different states. Statutes imposing such restrictions are not unconstitutional, nor void as being contrary to pub- lic policy.''" There is some conflict among the authori- 68 Arizona: Rev. St. 1901, § 3092. California: Civ. Code, § 60. Utah: Rev. St. 1898, § 1184. 60 See Renfrew v. Renfrew, 60 Kan. 277, 56 Pac. 534, 72 Am. St. Rep. 350; Scott v. Raub, 88 Va. 721; 19 Am. & Bng. Bnc. Law (2(1 Ed.) 1169. 70 Eaton V. Eaton (Neb.) 92 N. W. 995, 60 L. R. A. 605; Owen v. Bracket, 7 Lea (Tenn.) 448. See, also, Musik v. Musik, 88 Va. 12. In Elliott V. Elliott, 38 Md. 357, it was held that such a statute was not unconstitutional, although retrospective In Its operation. Tho court based its decision upon the determination that such prohiW- § 20 VALIDITY OP MARRIAGE. 35 ties as to the precise nature and effect of sucli a proliibi- tion. As has been -well said, it is difficult to understand how a marriage can be dissolved as to one of the parties Avithout being equally dissolved as to the other.^^ Cer- tainly, a wife without a husband, or a husband without a wife, is an anomaly -p and a court, on dissolving a mar- riage, has no power to impose any restraint upon a sec- ond marriage by either party, unless such power is ex- pressly conferred by statute.^^ It is generally held that such a prohibition, when imposed on the guilty party, is in the nature of a penalty or punishments* Where the tions imposed on the guilty party are not penal in nature, which is contrary to the generally accepted doctrine. '1 Browne, Div. p. 41. '2 Crawford v. State, 73 Miss. 172, 18 So. 848, 35 L. R. A. 224. "To affirm that a person is married, and yet has no legal husband or wile, is manifestly a solecism. In the very nature of things, the mar- riage contract under such circumstances cannot exist. There can- not be a husband without a wife, nor a wife without a husband. The existence of the one necessarily and conclusively implies the exist- ence of the other. Husband and wife are correlative terms. Any- thing, therefore, which destroys that relation as to one party neces- sarily destroys it as to the other." Per Rice, J., in State v. Weath- erby, 43 Me. 258, 69 Am. Dec. 59. 73 Barber v. Barber, 16 Cal. 378. 74 Succession of Hernandez, 46 La. Ann. 962, 24 L. R. A. 831; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505. See note 77, infra. In Elliott v. Elliott, 38 Md. 357, it was held that the prohibi- tion is not a penalty, but merely a denial of relief to the offender, and a continuance of the incapacity to marry resulting from the previously existing marriage. This doctrine seems to the author to be wholly without foundation in reason. It savors of absurdity to say that a man who has been divorced remains under the incapacity to marry arising from his marriage, which Incapacity consists solely in his having a wife, when in fact he no longer has a wife. It is idle to speak of denying relief, i. e., relief from having a wife, where the law has already granted such relief by tajting the wife away. It seems plain that the sole purpose of this prohibition is to 36 HUSBAND AND WIFE. § 20 statute expressly so declares, a marriage contracted with- in the state, in disregard of the prohibition, is absolutely void f^ but where the prohibited marriage is merely de- clared to be unlawful, such marriage is voidable merely, and not voidJ® The question will, of course, be largely controlled by the language of the statutes. It is almost universally held that the statutes, being penal in their nature, have no extraterritorial operation, and the party prohibited in one state from marrying may nevertheless contract a valid marriage in another state. '^'^ Moreover, the statutes apply only to divorces granted within the state.^» punish the offender. This case, as noted in the text, is distinguish- able from those cases in which both parties are prohibited for a certain time from marrying again. 75 Succession of Taylor, 39 La. Ann. 825; White v. White, 105 Mass. 325, 7 Am. Rep. 526; Cropsey v. Ogden, 11 N. Y. 228. As to the crim- inal liability of the guilty party in marrying again, see Com. v. Putnam, 1 Pick. (Mass.) 136; Com. v. Richardson, 126 Mass. 34, 30 Am. Rep. 647; Crawford v. State, 73 Miss. 172, 18 So. 848, 35 L.. R. A. 224; People v. Faber, 92 N. Y. 146, 44 Am. Rep. 357. 76 Park V. Barron, 20 Ga. 702, 65 Am. Dec. 641; Mason v. Mason, 101 Ind. 25; Crawford v. State, 73 Miss. 172, 18 So. 848, 35 L. R. A. 224. The'^second marriage may be set aside at the suit of the inno- cent party, who was ignorant of the prohibition. Ovitt v. Smith, 68 Vt. 35. 33 Atl. 769, 35 L. R. A. 223. In Owen v. Bracket, 7 Lea (Tenn.) 448, it was held under such a statute that the parties to the second ntarriage could not claim a homestead as husband and wife. 77 Wilson V. Holt, 83 Ala. 528, 3 So. 321, 3 Am. St. Rep. 768; Phil- lips V. Madrid, 83 Me. 205, 23 Am. St. Rep. 770, 12 L. R. A. 862; West Cambridge v. Lexington, 1 Pick. (Mass.) 505, 11 Am. Dec. 231; Dickson V. Dickson, 1 Yerg. (Tenn.) 110, 24 Am. Dec. 444; Willey v. Willey, 22 Wash. 115, 60 Pac. 145, 79 Am. St. Rep. 923. See post. § 44. 7S Phillips V. Madrid, 83 Me. 205, 23 Am. St. Rep. 770, 12 L. R. A. 862; Bullock v. Bullock, 122 Mass. 3. See, contra, as to the New York statute. Smith v. Woodworth, 44 Barb. (N. Y.) 198. In Sue- § 20 VALIDITY OP MARRIAGE. 37 Statutes prohibiting either party from contracting a marriage with a third person, after a decree of divorce, until the determination of an appeal, or the expiration of the time allowed for taking an appeal, stand on a dif- ferent footing from those in which the guilty party only is prohibited from marrying again. In the latter case the marriage is dissolved, although one of the parties is prohibited from remarrying; but in the former case the decree is not operative so long as an appeal is pending or may be taken, and hence the marriage is not fully dis- solved. Neither party, therefore, is capable of marrying a third person, and a marriage in disregard of the prohi- bition is a, nullity, whether celebrated within the state in which the divorce was granted,''® or in another state.^" cession of Hernandez, 46 La. Ann. 962, 15 So. 461, 24 L. R. A. 831, it was held that the New York statute prohibiting the marriage of the guilty party after divorce did not apply to and Invalidate a mar- riage between persons residing out of the state of New York, although the marriage was celebrated in that state. In this case the husband had been divorced in Louisiana for his adultery, and afterwards married in New York a woman domiciled in Paris. At the time of the marriage the parties intended to, and afterwards actually did, reside in Louisiana, in which state the marriage. If there celebrated, would have been valid. 79 Wilhlte V. Wilhite, 41 Kan. 154, 21 Pac. 173; Schuchart v. Schu- chart, 61 Kan. 597, 60 Pac. 311, 78 Am. St. Rep. 342, 50 L. R. A. 180; Eaton V. Eaton (Neb.) 92 N. W. 995, 60 L. R. A. 605; In re Smith's Estate, 4 Wash. 702, 30 Pac. 1059, 17 L. R. A. 573. See, also, Cox v. Combs, 8 B. Mon. (Ky.) 231. But if, under the statute, the right of appeal has been lost, and the decree become final, although the time allowed for appeal has not expired, the second marriage Is valid. Conn V. Conn, 2 Kan. App. 419, 42 Pac. 1006. 80 McLennan v. McLennan, 31 Or. 480, 50 Pac. 802, 65 Am. St. Rep. 835, 38 L. R. A. 863. But see, contra, Willey v. Willey, 22 Wash. ]15. 60 Pac. 145, 79 Am. St. Rep. 923. In this case it was held that the prohibition had no extraterritorial effect, and that the mar- riage In another state was valid. The court seems to consider the 38 HUSBAND AND WIFE. § 22 Such a prohibition is not penal in its nature, but applies to both parties, — to the innocent as well as to the guilty, ^and simply affects their capacity to remarry until the divorce has become fully operative*^ III. Reality of Consent. § 21. In general. -^ A party to a marriage must not only be competent to give his consent thereto, but such consent must be a real consent; that is, it must be given voluntarily, and upon a suflflcient comprehension of the facts. A consent given under duress or misapprehension, or procured by fraud, is not such a consent as is essential to a valid marriage, and a marriage procured through duress, er- ror, or fraud is void, at least in the sense that it may be avoided. We shall consider this question in detail. § 22. Marriage under duress. A consent to a marriage given under duress is no con- sent, and, if it appears that one of the parties to an al- leged marriage consented thereto through fear or duress, the marriage is invalid.^^ As has been well said:®* divorce fully operative, notwithstanding the proliibition. As pointed out by the chief justice in a separate opinion, this case directly con- flicts with the prior decision in Re Smith's Estate, 4 Wash. 702. He adds: "I am convinced, however, that the decision in that case is opposed to the great weight of authority upon the question." In the author's opinion, the decision in the earlier case is abso- lutely sound, and the later decision incorrect. 81 McLennan v. McLennan, 31 Or. 480, 50 Pac. 802, 65 Am. St. Rep. 835, 38 L. R. A. 863. 82Ferlat v. Gojon, Hopk. Ch. (N. Y.) 478, 14 Am. Dec. 554; Wil- lard v. Wlllard, 6 Baxt. (Tenn.) 297, 32 Am. Rep. 529; Mountholly v. § 22 VALIDITY OP MARRIAGE. 3y "The courts of law have always refused to recognize as binding contracts to which the consent of either party has been obtained by fraud or duress, and the validity of a contract of marriage must be tested and determined in precisely the same manner as that of any other con- tract.^^ True it is that in contracts of marriage there is an interest involved above and beyond that of the imme- diate parties. Public policy requires that marriages should not be lightly set aside,^^ and there is in some cases the strongest temptation to the parties more imme- Andover, 11 Vt. 226, 34 Am. Dec. 685; notes in 79 Am. St. Rep. 370, and 43 L. R. A. 814; 19 Am. & Eng. Bnc. Law (2d Ed.) 1188. 83 By Butt, J., In Scott v. Sebright, 12 Prob. Div. 21. s-* It has been said that the same duress that will avoid an or- dinary contract will be sufficient to avoid a marriage. 1 Bishop, Mar., Div. & Sep. § 538. It may be doubted whether this is a cor- rect statement of the law if by it is meant that the contract of marriage is to be judged in this connection by the same standard as other eontracts. Since marriage is a public as well as a private relation, public policy requires that marriages should not be lightly set aside, and hence it would seem that more care should be exer- cised by the courts in setting aside a marriage for duress than in the case of an ordinary contract. The rule is a mere generality of little practical value, and probably means no more than that the con- tract of marriage, like any other contract, may be set aside for duress sufficient to overcome the will of a party as to that particular contract. And since the degree of resistance offered by an unwilling party to a contract will ordinarily be in proportion to the importance of the contract, it seems that marriage, the mo.st important of all possible contracts, should be set aside only where the duress was of a most pronounced character. In any case, however, the sole in- quiry is whether the will of the particular party In question was so overcome that the consent given by him to the alleged marriage was not voluntary; and this is a pure question of fact in each case. 85 "In all cases of this nature it is highly necessary that great caution and deliberation should be observed by the court because of the consequences of the nullity of marriage to the parties and to the public." Per Hay, J., in Harford v. Morris, 2 Hagg. Consist. 423. 40 HUSBAND AND WIFE. § 22 diately interested to act in collusion in obtaining a dis- solution of the marriage tie. These reasons necessitate great care and circumspection on the part of the tri- bunal, but they in no wise alter the principle or the grounds on which this, like any other contract, may be avoided." No precise rule can be laid down as to what will con- stitute such force or duress as will invalidate a marriage, except that the force or duress must be such as to over- come the will of the person subjected thereto, so as to render his or her consent involuntary. What acts or circumstances will have this effect will plainly vary with the character of the person for courage and resolu- tion. In all cases regard must be had to the age, sex, and condition of the party. "It has sometimes been said," said the court in a recent case,^^ "that in order to avoid a contract entered into through fear, the fear must be such as would impel a person of ordinary courage and resolution to yield to it. I do not think that is an ac- curate statement of the law. Whenever, from natural weakness of intellect or from fear, whether reasonably entertained or not, either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger. The diffi- culty consists, not in any uncertainty of the law on the subject, but in its application to the facts of each indi- vidual case." This is plainly correct. In any case, the 88 Scott V. Sebright, 12 Prob. Div. 21. § 22 VALIDITY OF MARRIAGE. 41 question is not whether a person of ordinary courage arid resolution would have yielded in the circumstances shown, but whether, in fact, the will of the particular person was overcome. This, of course, is a pure ques- tion of fact, and each case must be determined according to its own circumstances.^'' _ To constitute duress, the force must be unlawful. Thus, if a man, lawfully arrested for probable cause and without malice on a charge of seduction, marries the wo- man to procure his discharge, he cannot have the mar- riage avoided upon the ground of duress.^® And it has been held that the fact that he could not have been con- victed of the seduction does not alter the case.*^ But where such arrest was in a proceeding instituted mali- ciously and without probable cause, the marriage will be set aside.^" For threats of bodily harm to constitute a ground for avoiding a marriage, it must appear that they were the sole reason for the party's marrying, and that he was not induced to marry by other reasons. Thus, if it ap- pears that the man married the woman in order to make 87 For illustrative cases see Harford v. Morris, 2 Hagg. Consist. 423; Scott V. Sebright, 12 Prob. Dlv. 21; Honnett v. Honnett, 33 Ark. 156, 34 Am. Rep. 39. 88 Marvin v. Marvin, 52 Ark. 425, 20 Am. St. Rep. 191; Jackson v. Winne, 7 Wend. (N. Y.) 47, 22 Am. Dec. 563; Scott v. Shufeldt, 5 Paige (N. Y.) 43; Medrano v. State, 32 Tex. Cr. R. 214, 22 S. W. 684, 40 Am. St. Rep. 775; Copeland v. Copeland (Va.; 1895) 21 S. E. 241. 89 Marvin v. Marvin, 52 Ark. 425, 20 Am. St. Rep. 191. See, also, Scott V. Sbufeldt, 5 Paige (N. Y.) 43. 80 Smith V. Smith, 51 Mich. 607; Shoro v. Shore, 60 Vt. 268, 6 Am. St. Rep. 118. 43 HUSBAND AND WIFE. § 2 reparation for the wrong he had done her, or to regain his standing in the community, or for other similar rea- sons, he cannot have the marriage set aside, although his consent was given with reluctance, and he may have been somewhat influenced by threats of violencc.^^ The authorities are in some confusion as to whether a marriage procured by duress is void, voidable, or neither, according to the uncertain and variable meaning at- tached to these words.^^ On principle, since there is no consent, the marriage is absolutely void ; and it has been so held."^ Clearly the marriage is so far invalid that oiHonnett v. Honnett, 33 Ark. 156, 34 Am. Rep. 39; Collins v. Ryan, 49 La. Ann. 1710, 22 So. 920, 43 L. R. A. 814; Todd v. Todd, 149 Pa. St. 60, 24 Atl. 128, 17 L. R. A. 320. 92 See 1 Bishop, Mar., Div. & Sep. § 548. The courts speak of such marriages as void or voidable, without using these terms in any pre- cise or constant sense. 93 In Mountholly v. Andover, 11 Vt. 226, 34 Am. Dec. 685, it was held that a marriage celebrated by a justice of the peace without the consent of the parties, being a marriage by force or duress, was absolutely void, and might be impeached in a collateral proceeding. See, also, Bassett v. Bassett, 9 Bush (Ky.) 696; Ferlat v. Gojon, Hopk. Ch. (N. Y.) 478. It has been stated or intimated in several cases that a marriage under duress may be ratified or affirmed by the coerced party after the removal of the duress. This, of course, would be to hold that the marriage is not absolutely void, for a void marriage cannot be ratified. An examination of the cases, how- ever, will show that either there was no ratification or no duress, and hence the statements made are dicta merely. See Hampstead v. Plaistow, 49 N. H. 84; Richards v. Richards, 19 Pa. Co. Ct. R. 322; Miller v. Miller, 43 S. C. 306. In this connection, a marriage undei duress should, perhaps, be distinguished from a marriage procured by fraud. In the former case the consent, not being voluntary, is no consent, and hence the marriage is properly a nullity, while in the latter case the consent is a real consent, voluntarily given, al- though induced by fraud. Such a marriage is therefore valid unless disaffirmed. § 23 VALIDITY OP MARRIAGE. 43 it may be set aside at tlie suit of tlie party coerced."'' It would seem plain that where, notwithstanding duress, the party did not consent, but positively refused to con- sent, the marriage is absolutely void.^^ In cases in which the party coerced seeks to have the marriage annulled, it will generally be found that the marriage has never been consummated, and the parties separated immediately after the ceremony.^® This fact,- of course, would not, of itself, prevent the marriage from being binding,"^ but it would more strongly incline the court to dissolve it, and, where the nonconsummation was due to the plaintiff's refusal to cohabit with the de- fendant, it would undoubtedly be evidence tending to establish the fact of coercion. On the other hand, it would seem that the voluntary consummation of the marriage after the removal of the alleged coercion would tend to prove the, absence of coercion. § 23. Marriage procured by fraud — In general. The consent to a marriage cannot be said to be vol- untary where it was induced by fraud, but for which it 9*Bassett v. Bassett, 9 Bush (Ky.) 696; Ferlat v. Gojon, Hopk. Ch. (N. Y.) 478, 14 Am. Dec. 554; Willard v. Wlllard, 6 Baxt. (Tenn.) 297, 32 Am. Rep. 529. In Lacoste v. Guidroz, 47 La. Ann. 295, 16 So. 836, it was said that a marriage the consent to which was pro- cured by threats is not void, but merely voidable. 05 See Roszel v. Roszel, 73 Mich. 133, 16 Am. St. Rep. 569. 86 See Scott v. Sebright, 12 Prob. Div. 21; Roszel v. Roszel, 73 Mich. 133, 16 Am. St. Rep. 569; Perlat v. Gojon,. Hopk. Ch. (N. Y.) 478, 14 Am. Dec. 554; Miller v. Miller, 43 S. C. 306; Willard v. Wil- lard, 6 Baxt. (Tenn.) 297, 32 Am. Rep. 529. In Harford v. Morris, 2 Hagg. Consist. 423, the marriage was annulled, notwithstanding consummation. 97 Collins v. Ryan, 49 La. Ann. 1710, 43 L. R. A. 814. And see post, § 31, that consummation is not essential. 44 HUSBAND AND WIPE. § 23 would, not have been given. Such fraud will in some cases render the marriage invalid. It may be a matter of some difficulty at times to de- termine whether or not the alleged fraud is such as will invalidate the marriage. It is settled, however, that fraud which would vitiate an ordinary contract will not necessarily have this effect.^^ From considerations of public policy, a marriage will not be lightly declared void for fraud or other reason.^^ The fraud relied on to avoid the marriage must affect the essentials of the relation. Thus, concealments or misrepresentations by a party as to his or her position or circumstancesJ aJifE; or traits or defect s^ of chara cter, Jhabits, temper, re^- tati on, he_alth, and the like, are no ground for avoiding 88 Smith V. Smith, 171 Mass. 404, 50 N. B. 933, 68 Am. St. Rep. 440; Allen's Appeal, 99 Pa. 196, 44 Am. Rep. 101. In Smith v. Smith, 171 Mass. 404, 50 N. E. 933, 68 Am. St. Rep. 440, the court said: "There is no reason why executory contracts of marriage should not be treated, in reference to the fraud of either party, like any other contracts. Ws think it is well settled that fraud of such a kind in its essential elements as would invalidate an ordinary contract is a good defense to an action upon a contract to marry; but after a contract to marry has ripened into a marriage, different considerations affect the case. On grounds of public policy, the law seeks to make the marriage relation in every case as nearly perma- nent as possible without doing injustice. The difference between the relations of a man and woman affianced and their relations after marriage is more than the difference between thiose who have made an ordinary executory contract, and the same persons after the con- tract is executed. At marriage there is a change of status, which affects them and their posterity and the whole community. It Is a change which, for important reasons, the law recognizes, and it In- augiirates conditions and relations which the law takes under its protection. It is of such a nature that it cannot lightly be disre- garded." »» Smith V. Smith, 171 Mass. 404, 50 N. E. 933, 68 Am. St, Rep. 440. § 23 VALIDITY OF MARRIAGE. 45 the marriage. These are accidental qualities, and do not constitute the essential and material elements on which the marriage relation rests ; and the parties must assume the burden of informing themselves by acquain- tance and inquiry as to these matters before they enter into so important a relation.^"" Upon their marriage they take each other for better or worse, and agree to abide the consequences of misinformation or mistake in regard to each other .^"^ A number of cases have arisen which quite fully set forth the attitude of the courts as to what fraud does or does not affect the essentials of the marriage rela- tion. Thus, the courts have refused to annul a mar- riage on the ground that the woman concealed the fact that she was a kleptomaniac,^"^ or that she had been previously married and divorced,^"* or had previously been insane.^"* So, also, chastity is not a requisite to the validity of a marriage,^"^ and hence the concealment by the woman of her unchastity, or her .fraudulent rep- resentation that she was chaste, is no ground for annul- ling the marriage."® Plainly, if the man knew or sus- 100 Reynolds v. Reynolds, 3 Allen (Mass.) 605; Smith v. Smith, 171 Mass. 404, 50 N. E. 933, 68 Am. St. Rep. 440; Lewis v. Lewis, 44 Minn. 124, 46 N. W. 323, 20 Am. St. Rep. 559, 9 L. R. A. 505. 101 Smith y. Smith, 171 Mass. 404, 50 N. E. 933, 68 Am. St. Rep. 440. 102 Lewis V. Lewis, 44 Minn. 124, 46 N. W. 323, 20 Am. St. Rep. 559, 9 L. R. A. 5t)5. 103 Donnelly y. Strong, 175 Mass. 157, 55 N. E. 892. 104 Cummington v. Belchertown, 149 Mass. 223, 21 N. E. 435, 4 L. R. A. 131. In this case the wife had been insane before the mar- riage, but was sane at the time of the marriage, though she after- wards again became insane. 106 Leayitt v. Leayltt, 13 Mich. 452, and cases cited in note im- mediately following. 106 Delpit V. Young, 51 La. Ann. 923, 25 So. 547; Varney v. Varney, 46 HUSBAND AND WIFE. § 23 pected that the woman was unchaste, and nevertheless married her, he cannot have the marriage annulled for fraudulent concealment of unchastity.^"'^ According to the weight of authority in this country, the pregnanc ;gjof_the woman, jai . the time of t h&jaar- riage, concealed from the husband, who has not himself, previous to the marriage, sustained improper relations with the wife, is a fraud whi ch is a sufficient ground for avoiding^ the marriage if the husband, upon the discov- ery of the fact, ceases to cohabit with and abandons the 52 Wis. 120, 38 Am. -Rep. 726; Williams v. Williams, 63 Wis. 58, 53 Am. Rep. 253. The concealment by the woman of the fact that she had given birth to an illegitimate child is not such fraud as will inyalidate the marriage. Smith v. Smith, 8 Or. 100. See, also, Farr v. Parr, 2 MaoArthur (D. C.) 35. In Reynolds v. Reynolds, 3 Allen (Mass.) 605, in discussing the question as to what fraud will vitiate a marriage, the court said: "Nothing can then [i. e., after the contract is executed] avoid it which does not amount to a fraud in the essentialia of the marriage relation. And as mere incontinence in a woman prior to her entrance into the marriage contract, not resulting in pregnancy, does not necessarily prevent her from being a faithful wife, or from bearing to her husband the pure offspring of his loins, there seems to be no sufficient reason for holding misrepresentation or concealment on the subject of chastity to be such a fraud as to afford a valid ground for declaring a consummated marriage void. In regard to continence, as well as to other personal traits and attributes of character, it is the duty of a party to make due inquiry beforehand, and not to ask the law to relieve him from a position into which his own indiscretion or want of diligence has led him. Certainly it would lead to disastrous consequences if a woman who had once fallen from virtue could not be permitted to represent herself as continent, and thus re- store herself to the rights and privileges of her sex, and enter into matrimony without incurring the risk of being put away by her husband on discovery of her previous immorality. Such a doc- trine is inconsistent with reason and a wise and sound policy." lOTParr v. Farr, 2 MacArthur (D. C.) 35; Steele v. Steele, 96 Ky. 382, 29 S. W. 17; Donnelly v. Strong, 175 Mass. 157, 55 N. E. 892. § 23 VALIDITY OP MARRIAGE. 47 wife."® This case is distinguislied from that of the con- cealment of a mere previous want of chastity on the ground that, while a mere want of chastity does not pre- vent a woman from discharging the duties of a true and faithful wife, pregnancy at the time of marriage ren- ders her incapable, at least for the time being, of bear- ing a child to her husband, and also subjects him to the painful alternative of either disowning the child, and thereby publishing to the world his wife's shame, or acknovrledging the illegitimate child of another as his own, and permitting him to share in his bounty, and re- ceive support along with his own legitimate children.^"" This reasoning, however, is regarded as unsatisfactory in England, and the American doctrine has been there repudiated on the ground that such pregnancy does not go to the essence of the marriage.^" And. it has been so held, also, in North Carolina." ^ Where the husband has himself had intercourse with the wife before mar- riage, her concealed pregnancy by another man is not 108 Baker v. Baker, 13 Cal. 88 ; Reynolds v. Reynolds, 3 Allen (Mass.) 605; Harrison v. Harrison, 94 Mich. 559, 34 Am. St. Rep. 364, "Woodruff, Cas. 58. See, also, Allen's Appeal, 99 Pa. 196, 44 Am. Rep. 101. See note in 18 L. R. A. 375. In a number of states, such pregnancy is by statute made a ground of divorce. 109 Reynolds v. Reynolds, 3 Allen (Mass.) 605. 110 Moss V. Moss [1897] Prob. Div. 263. See, also, 1 Bishop, Mar., Div. & Sep. §§ 486-495, in which the learned author reviews the case of Reynolds v. Reynolds, 3 Allen (Mass.) 605, and, while approving the result reached in that case, says: "It cannot, con- sequently, be disguised that the reasoning on which this case pro- ceeds is, when looked at it in its parts, unsatisfactory." Section 494. 111 Long V. Long, 77 N. C. 304, 24 Am. Rep. 449. The dissolu- tion of the marriage in such case is now authorized by statute In this state. Code, § 1285. See Steel v. Steel, 104 N. C. 631. 48 HUSBAND AND WIFE. 23 § fraud sufficient to avoid the marriage. In such case the husband is put on his guard by his knowledge of the wife's weakness.^^^ Where a woman induces a man with whom she has had illicit intercourse to marry her by falsely repre- senting to him that she is pregnant by him, when in fact she is not pregnant/^* or is pregnant by another/^* he cannot have the marriage annulled for fraud. In this case, also, the man is put on his guard by knowl- edge of the woman's unchastity. JTh^Jrtmjdulant-cmicealmfflt by; one of^ the_p^arties of the fact that he or she is afilicted with an incurable venereal disease is a sufficient ground for avoiding the marriage. Such a condition is, in effect, equivalent to impotency.^^^ It seems that fraud not sufficient of itself to consti- tute a ground for avoiding the marriage may have this ii2Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98; Seilfieimer V. Seilheimer, 40 N. J. Eq. 412. "3 Fairchild v. FaircMld, 43 N. J. Eq. 473, 11 Atl. 426. See, also, Hofeman v. Hoffman, 30 Pa. 417; Todd v. Todd, 149 Pa. 60, 24 Atl. 128, 17. L. R. A. 320. iiiFranke v. Franke (Cal.) 31 Pac. 571, 18 L. R. A. 375; Foss v. Foss, 12 Allen (Mass.) 26; States v. States, 37 N. J. Eq. 195. See, also, Sissung v. Sissung, 65 Mich. 168, In which the court was equally divided on this question. In two early cases, a marriage was dissolved at the suit of the husband where both the parties were white, and the child, which was born before m'arriage, was a mulatto. Scott v. Shufeldt, 5 Paige (N. Y.) 43; Barden v. Barden, 14 N. C. (3 Dev.) 548. See, also, Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, 67 N. B. 63, 63 L. R. A. 63. 115 Smith V. Smith, 171 Mass. 404, 50 N. E. 933, 68 Am. St. Rep. 440; Ryder v. Ryder, 66 Vt. 158, 28 Atl. 1029, 44 Am. St. Rep. 833. It is otherwise, however, if the disease is not contagious and will yield to treatment. Vondal v. Vondal, 175 Mass. 383, 56 N. E. 586, 78 Am. St. Rep. 502. § 24 VALIDITY OP MARRIAGE. 49 effect when combined with other circumstances, such as the youth or mental weakness of the party de- frauded.^^** The fraud for which a marriage may be annulled must be such a fraud, as operates upon one or the other of the immediate parties to the marriage. Third persons Avho are defrauded by a marriage cannot have it set aside. Thus, creditors jw'hose rights are defeated by the mar- riage of their debtor cannot have the marriage annulled, although the sole object of the marriage was to defeat their claims.^ ^^ § 24. Same — Whether void or voidable. The authorities are conflicting as to whether a mar- riage procured by fraud is void or voidable. Thus, Chancellor Kent says: "A marriage procured by force or fraud is also void ab initio, and may be treated as null by every court in which its validity may be inciden- tally drawn in question.""* This, however, according to the later authorities, is not correct. The better view is that such marriages are merely voidable at the suit of the party defrauded, who, upon discovery of the fraud, may elect to disaffirm or ratify the marriage. The party who commits the fraud cannot disaffirm the marriage, and is bound by it unless the other party elects to disaffirm.^^* 116 See 1 Bishop, Mar., Div. & Sep. §§ 494, 495; Orchardson v. Co- field, 171 111. 14, 49 N. B. 197, 63 Am. St. Rep. 211, 40 L. R. A. 256; Lewis V. Lewis, 44 Minn. 124, 46 N. W. 323, 20 Am. St. Rep. 559. 117 MoKlnney v. Clarke, 2 Swan (Tenn.) 321, 58 Am. Dec. 59. 118 2 Kent, Comm. 76. See, also, Schouler, Dom. Rel. § 23. 119 Farley v. Farley, 94 Ala. 501, 10 So. 646, 33 Am. St. Rep. 141, Long, D. R.— 4. 50 HUSBAND AND WIFE. § 25 § 25. Same— Consummated and nonconsummated marriages distinguished. There is a tendency at present to set aside a marriage for fraud more readily where the marriage has not been physically- consummated than where there has been con- summation. This distinction rests upon the soundest reasons. If the defrauded party discovers the fraud be- fore the marriage is consummated, and thereafter re- fuses to cohabit, it is plain that the considerations of public policy against the dissolution of marriage are entitled to far less weight than wh^re the marriage has been followed by cohabitation. In legal contemplation, the parties are indeed husband and wife as soon as the marriage ceremony is performed, but until the marriage is consummated, the new relation assumed by them is inchoate and incomplete, and their status is analogous to that of parties to an executory contract. The evil that might result, therefore, to the parties and the com- munity from a dissolution of the marriage tie is much less than it would be if the marriage had been consum- mated, or than might reasonably be expected from the continuance of a relation so inauspiciously begun. By the setting aside of the marriage, — a mere formal cere- mony of no particular consequence in itself, — the par- ties may be placed practically in statu, quo, — a thing which would be impossible if the marriage had been fol- lowed by cohabitation.!^'* Woodruff, Cas. 59; Tompert v. Tompert, 13 Bush (Ky.) 326, 26 Am. Rep. 197; note in 79 Am. St. Rep. 371. 120 1 Bishop, Mar., Div. & Sep. §§ 456, 461-466; Smith v. Smith, 171 Mass. 404, 50 N. E. 933. 68 Am. St. Rep. 440. In this case tha § 26 VALIDITY OF MARRIAGE. 51 § 26. Same — Liability for fraudulently procuring marriage. A person who fraudulently induces another to eon- tract with him or her a marriage known to the party committing the fraud, but not to the other party, to be illegal, is liable in damages to the party so deceived.^ ^^ Thus, it has been so held where a man induced a woman to marry him when he was incompetent to marry be- cause prohibited by a decree divorcing him from a for- couri, in considering wlien a contract of marriage should be deemed to be executed, said: "Clearly it is executory up to the time ol the ceremony. Viewed in its legal aspect, it becomes a binding marriage' as soon as the ceremony is performed; but the full exe- cution of the contract contemplated by the parties in their orig- inal agreement is then just beginning, and is to continue during their joint lives. Their status up to the time of the ceremony is that of parties to an executory contract. Their status as soon as the ceremony is performed is that of persons legally married, who, with the sanction and under the forms of the law, have assumed new relations to each other and to the state. But these new rela- tions are then rather inchoate than complete, and they do not as- sume their perfected form, so as to have their full possible effect upon the parties and the community, until consummation of the marriage. There are, therefore, reasons why a fraud like that In the present case, discovered before consummation of the marriage, and at once made a ground for separation, should move the court more strongly in favor of the libelant than if the discovery had come later. The reluctance of the court to recognize such frauds as a ground for legal proceedings is founded upon considerations of public policy. These considerations are much less weighty in a ease like the present- than if the parties had cohabited for a con- siderable time before the proceedings were commenced. Although in many cases the distinction between consummated and uncon- summated marriages in proceedings for separation has been over- looked, it is distinctly recognized in Lyndon v. Lyndon, 69 111. 43, and Robertson v. Cole, 12 Tex. 356, In each of which cases a de- cree of nullity was entered when the court said that the ground would have been insufficient if the marriage had been consum- mated." See, also, in support of the text, Clark v. Field, 13 Vt. 460. 121 Cooley, Torts (2d Ed.) 279. 52 HUSBAND AND WIFE. § 27 123 mer wife/^^ or because lie had a lawful wife living It seems, however, that a fraud on the marriage render- ing it voidable, such as concealed impotency on the part of the man, or concealed pregnancy on the part of the woman, affords no ground for an action at common law.i2* But a man who, by falsely representing that a woman pregnant by him is virtuous, induces another to marry her, is liable to the husband for the fraud.^^^ Of course a person who knowingly contracts a void mar- riage has no ground of complaint. Thus, where a wo- man who knew that a divorce from her husband was void married another man, from whom she contracted a venereal disease, it was held that she had no right of action for the injury.^ 126 § 27. Marriage entered into by mistake. The case of error or mistake is closely allied to fraud, for a person could hardly fall into such a mistake in marrying as would invalidate the marriage unless a fraud were practiced upon him. The most obvious ex- 122 Blossom V. Barrett, 37 N. Y. 434, 97 Am. Dec. 747. In this case it was held that the woman might recover damages for the fraud without first having the marriage annulled, it being void. 123 Pollock V. Sullivan, 53 Vt. 507; Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411. In Withee v. Brooks, 65 Me. 14, it was held that, by virtue of a state statute, the right of action survived, and might be asserted against the man's personal representative after his death; but such cause of action does not survive at com- mon law. Grim v. Carr, 31 Pa. 533. In Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721, it was held that the deceived woman could not recover from the man's administrator for her services rendered to the deceased while living with him as his wife. But see Higgins v. Breen, 9 Mo. 493. 124 Cooley, Torts (2d Ed.) 279. 125 Kujec V. Goldman, 150 N. Y. 176, 44 N. E. 773, 34 L. R. A. 156. 126 Deeds v. Strode, 6 Idaho, 317, 55 Pac. 656, 96 Am. St. Rep. 263. ^ - 29 VALIDITY OF MARRIAGE. 53 ample of error invalidating a marriage is where a party marries one person thinking he or she is marrying an- other. Thus, if A marries B thinking B is C, and in- tending to marry C, the ma rriage i s yoid . But if A marries B, intending to marry B, but thinking that B is C, the marriage is valid.^^^ IV. Expression of Consent — How Marriage is Effected. § 28. In general. To constitute a valid marriage there must not only be parties competent and willing to consent thereto, but such consent must be expressed in some form which the law will recogTiize. We shall examine the manner of entering into the marriage relation both at common law and under statutes. § 29. The agreement to marry — Breach of promise. The marriage relation, as we have seen, is founded upon a contract.^^^ This contract, commonly known as the "engagement," is, of course, the first step towards marriage. The contract to marry is, in the main, sub- ject to the same rules as ordinary contracts, with such differences as grow out of the peculiar nature of the agreement.^ ^® Unlike many ordinary contracts, this contract. cannot be specifically enforced. If either party refuses to perform, the only remedy at law the other party has is an afction for damages for breach of the promise.^ ^^ In order to entitle the plaintiff in such ac- 12T See 1 Bishop, Mar., Dlv. & Sep. §§ 524-537. 128 See ante, § 4. 120 See Lewis v. Tapman, 90 Md. 294, 45 -Atl. 459, 47 L. R. A. 385. 130 The specific performance of agreements to marry was for- 54 HUSBAND AND WIFE. § 29 tion to recover, the contract must, of course, be bind- ijjgisi jjj ^]jg ^j,^^ place, the parties must be compe- tent to contract. Thus, an infant, though above the age of consent, is not bound by a promise of marriage,^^^ though he may sue thereon if the promisor is an adult, the contract being voidable merely, and not void.^^^ There must have been a mutual promise to marry, an offer or promise of marriage by one party, and an ac- ceptance or promise in return by the other ;^^* but the agreement need not be in any particular form,^^^ nor need it be directly proved, — it may be inferred from the conduct of the parties towards each other.^^® The merly decreed in England by the spiritual courts, which compelled a celebration of the marriage in facie ecclesiae, but this jurisdic- tion was taken away by statute in 1753. The common-law courts entertained actions for damages for breach of the contract from an early date. See Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. And see, generally, as to action for breach of prom- ise, 4 Am. & Eng. Bnc. Law (2d Ed.) 882, and note in 63 Am. Dec. 532. 131 A contract to marry must satisfy the legal requirements as to parties, consideration, etc., which other contracts must satisfy. Burke v. Shaver, 92 Va. 345, 23 S. E. 749, Woodruff, Gas. 5. 132 Hunt V. Peake, 5 Cow. (N. Y.) 475, 15 Am. Dec. 475; Rush v. Wick, 31 Ohio St. 521, 27 Am. Rep. 523. 133 Cannon v. Alsbury, 1 A. K. Marsh. (Ky.) 76, 10 Am. Dec. 709; WlUard v. Stone, 7 Cow. (N. Y.) 22, 17 Am. Dec. 496. To sustain an action on the promise, the infant plaintiff need not aver or prove the consent of parent or guardian to the marriage. Cannon v. Als- bury, 1 A. K. Marsh. (Ky.) 76, 10 Am. Dec. 709. i34Burnhani v. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529; Russell v. Cowles, 15 Gray (Mass.) 582, 77 Am. Dec. 391; Yale v. Curtiss, 151 N. Y. 598, 45 N. B. 1125; Weaver v. Bachert, 2 Pa. 80, 44 Am. Dec. 159. i35Homan v. Earle, 53 N. Y. 267; Woodruff, Cas. 3; Yale v. Cur- tiss, 151 N. Y. 598; 45 N. B. 1125. The promise need not be ex- press. Hotchkins v. Hodge, 38 Barb. (N. Y.) 117. i38Burnham v. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529; § 29 VALIDITY OP MARRIAGE. 55 promise is not an "agreement made in consideration of marriage," within the statute of frauds, and so need not be in writing,^ ^'^ unless it is not to be performed within one year, in which case it must be in writing.^^® If, however, it may or may not be performed within a year, it need not be in writing.^^^ The promise must be for a consideration, the mutual promises being the usual and a sufficient consideration.^*" As in the case of other contracts, an immoral consideration is not suffi- cient. Thus, a promise to marry in consideration of future sexual intercourse is void ;"^ but intercourse be- fore'''^ or after"^ the promise does not affect it. The Wightman v. Coates, 15 Mass. 1, 8 Am. Dec. 77; Kelly v. Riley, 106 Mass. 339, 8 Am. Rep. 336, Woodruff, Cas. 10; Perkins v. Hersey, 1 R. I. 493, W^oodruff, Cas. 1; Hotchkins v. Hodge, 38 Barb. (N. Y.) 117; Munson v. Hastings, 12 Vt. 346, 36 Am. Dec. 345. The con- duct and acts relied on to prove the contract must be something more than those characteristic ol mere friendship or even court- ship. Walmsley v. Robinson, 63 111. 41, 14 Am. Rep. Ill; Burnham V. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529; Yale v. Cur- tiss, 151 N. Y. 598, 45 N. B. 1125; Munson v. Hastings, 12 Vt. 346, 36 Am. Dec. 345. See, generally, as to proof of the contract. Gates V. McKinney, 48 Ind. 562, 17 Am. Rep. 768; Russell v. Cowles, 15 Gray (Mass.) 582, 77 Am. Dec. 391; Green v. Spencer, 3 Mo. 225, 26 Am. Dec. 672; Homan v. Earle, 53 N. Y. 267, Woodruff, Cas. 3; Yale V. Curtiss, 151 N. Y. 598, 45 N. E. 1125; Wetmore v. Mell, 1 Ohio St. 26, 59 Am. Dec. 607. 137 Withers v. Richardson, 5 T. B. Mon. (Ky.) 94, 17 Am. Dec. 44. 138 Nichols V. Weaver, 7 Kan. 373. Contra, Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. 139 Lawrence v. Cooke, 56 Me. 187, 96 Am. Dgc. 443; Lewis v. Tapman, 50 Md. 294, 45 Atl. 459, 47 L. R. A. 385. 140 Millward v. Littlewood, 5 Exch. 775; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; flotchkins v. Hodge, 38 Barb. (N. Y.) 117; Weaver v. Bachert, 2 Pa. 80, 44 Am. Dec. 159. 1*1 Hanks v. Naglee, 54 Cal. 51, 35 Am. Rep. 67; Burke v. Shaver, 92 Va. 345; 23 S. E. 749, Woodruff, Cas. 5. "2 Hotchkins v. Hodge, 38 Barb. (N. Y.) 117. 56 HUSBAND AND WIFE. § 29 promise must be definite/** but it may be upon reason- able conditions or contingencies, not contrary to law or opposed to public policy."" Where no time for per- formance of the promise is agreed upon, it is construed to be a pro\»ise to be performed in a reasonable time."® To support an action there must, of course, have been a breach of the contract by the defendant.^*'' A renun- ciation of the contract, without justification, before the time fixed for performance,"^ or, where no time is set, "3 Spellings v. Parks, 104 Tenn. 351. 58 S. W. 126. On the con- trary, seduction after and on the faith of the promise may be shown in aggravation of the damages. See note 173, infra. "4 See Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L. R. A. 660. 145 Lewis V. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. A promise by a man to marry a woman as soon as her business is settled is conditional, and no liability arises thereon until the con- dition is satisfied. Cole v. Cottingham, 8 Car. & P. 75, 34 E. C. L. 618. The promise of a married man to marry within a reasonable time after a divorce should be decreed between himself and his wife in a suit then pending Is contrary to public policy, and void, and no action can be maintained upon it. Noice v. Brown, 38 N. J. Law, 228, 20 Am. Rep. 388, 39 N. J. Law, 133, 23 Am. Rep. 213. And a promise to marry after the death of a living husband or wife would also doubtless be void. See Millward v. Littlewood, 5 Exch. 775; Paddock v. Robinson, 63 111. 99, 14 Am. Rep. 112. But a con- tract to marry after the death of a divorced wife is sufficiently definite, and is valid where no legal impediment to an immediate marriage exists. Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L. R. A. 660. "I! Burks V. Shain, 2 Bibb (Ky.) 341, 5 Am. Dec. 616; Bennett v. Beam, 42 Mich. 34.6, 4 N. W. 8, 36 Am. Rep. 442. 1" Kelly V. Renfro, 9 Ala. 325, 44 Am. Dec. 441. The defendant's marriage to another woman constitutes a breach. Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L* R. A. 660. "s Kurtz v. Prank, 76 Ind. 594, 40 Am. Rep. 275; Holloway v. Griffith, 32 Iowa, 409, 7 Am. Rep. 208; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; Burtls v. Thompson, 42 "N. Y. 246, § 29 VALIDITY OF MARRIAGE. 57 a refusal to perform, upon request, after a reasonable time,^*^ constitutes a breach, and gives an immediate right of action. A request for or tender of performance by the plaintiff is not necessary where the defendant has renounced the contract,^^" but it is otherwise where no time is fixed for performance, and the defendant has not plainly repudiated his promise.^^^ The defense^ ^^ to an action may be either that the contract was not binding in the first instance,^^^ or that a refusal to perform was justified. Thus, fraud which would invalidate an ordinary contract is a good defense to an action upon a contract to marry, although it might not be suflficient to avoid a marriage.^^* False repre- sentations and fraudulent concealments by the plaintiff, or by a third person on her behalf and with her kno^yl- edge,*®^ as to her character* ^^ or social position and for- 1 Am. Rep. 516; Burke v. Shaver, 92 Va. 345, 23 S. B. 749, Woodruff, Cas. 5. "0 See cases cited in notes 146 and 151. isowillard v. Stone, 7 Cow. (N. Y.) 22, 17 Am. Dec. 496, and cases cited in note 139, supra. No tender by plaintiff is necessary where the defendant has absconded. Johnson v. Caulkins, 1 Johns. Cas. (N. Y.) 116, 1 Am. Dec. 102. 151 Burks V. Shain, 2 Bibb (Ky.) 341, 5 Am. Dec. 616; Burnham V. Cornwell, 16 B. Mon. (Ky.) 284, 63 Am. Dec. 529. 152 As to defense, see, generally, note In 40 Am. St. Rep. 172. 153 As, for example, because the defendant was an infant, or be- cause the particular contract was void under the statute of frauds, or because contrary to public policy. 154 See ante, § 23, note 98. 155 Foote V. Hayne, 1 Car. & P. 545, 12 E. C. L. 313. See, also, Wharton v. Lewis, 1 Car. & P. 529, 12 B. C. L. 305. 156 Foote V. Hayne, 1 Car. & P. 545, 12 B. C. L. 313. It is a good defense that the plaintiff fraudulently concealed the fact that be- fore the promise she had borne a bastard child. Bell v. Eaton, 28 Ind. 468. 92 Am. Dec. 329. 58 HUSBAND AND WIFE. § 29 tuue,"^ may constitute a defense.^^^ But it is not the duty of a person, before making or accepting an offer of marriage, to communicate or disclose all of his or her traits of character or circumstances of life; it is rather the duty of the other party to satisfy himself or herself in these matters before entering into the engage- ment. If the engagement is made without investiga- tion, it will ordinarily be binding, notwithstanding the subsequent discovery of facts which, if known at the time, would have prevented it.^^'' But while no dis- closure may be necessary, a partial disclosure, or a Avill- ful suppression or concealment of material facts, is such fraud as constitutes a defense.^"" Moreover, there are 15' Wharton v. Lewis, 1 Car. & P. 529, 12 E. C. L. 305. 158 For a note on express and implied representations in a con- tract to marry, see 44 Am. St. Rep. 381. See, also, note in 26 L. R. A. 430. isoBeachey v. Brown, El., Bl. & El. 796, 96 E. C. L. 796; Van Houten v. Morse, 162 Mass. 414, 38 N. E. 705, 44 Am. St. Rep. 373, 26 L. R. A. 430, Woodruff, Cas. 14; Gring v. Lerch, 112 Pa. 244, 56 Am. Rep. 314. The fact that the plaintiff, unknown to the defend- ant, had some negro blood in her veins, or had mercenary motives, or was wanting in affection, or that there was' an incompatibility resulting from disparity of age, or difference in character and dis- position, will not justify the defendant in breaking the engage- ment, in the absence of fraud. Van Houten v. Morse, 162 Mass. 414, 38 N. E. 705, 44 Am. St. Rep. 373, 26 L. R. A. 430, Woodruff, Cas. H. It is no defense that, before the promise, the plaintiff had been Insane and confined in' an asylum, provided she was sane at the time of the promise. Baker v. Cartwright, 10 C. B. (N. S.) 124, 100 E. C. L. 124. In this case the court said that want of chastity is the only exception to the binding effect of the promise. This is an extreme position. "0 Van Houten v. Morse, 162 Mass. 414, 38 N. E. 705, 44 Am. St. Rep. 373, 26 L. R. A. 430, Woodruff, Cas. 14. § 29 VALIDITY OP MARRIAGE. £9 some circumstances which must be disclosed. Thus, a man has a right to presume that the woman is physically capable of matrimonial intercourse, and her conceal- ment of the fact of her incapacity is a good defense to an action on the promise.^^^ So, also, want of chastity on the part of the woman, if unknown to the man at the time of the promise, justifies him in breaking his prom- ise on discovery of the fact, and constitutes a good de- fense.^ "^ It is otherwise, however, if her unchastity was known to him when the promise was made.^^^ The fact that the plaintiff, at the time of the promise, was engaged to a third person, is no defense, although un- known to the defendant."* The physical condition of the defendant, rendering him unfit for marriage, may in some circumstances be a good defense to an action for breach of promise. Thus, a man who, having been aiflicted with a loathsome disease, agrees to marry, believing that his disease is cured or curable, is justified in breaking the engagement upon afterwards discovering that the disease still ex- ists and is incurable."^ So, also, a disease rendering it improper or unsafe to marry, contracted or developed after the agreement, without fault, justifies a postpone- 101 Gring v. Lerch, 112 Pa. 244, 56 Am. Rep. 314. 162 Foster v. Hanchett, 68 Vt. 319, 35'AtI. 316, 54 Am. St. Rep. 887. 103 Bowman v. Bowman, 153 Ind. 498, 55 N. E. 422. i6*Beacliey v. Brown, El., Bl.'fe El. 796, 96 E. C. L. 796; Roper v. Clay, 18 Mo. 383, 59 Am. Dec. 314. 105 Shackleford v. Hamilton, 93 Ky. 80, 19 S. W. 5, 40 Am. St. Rep. 166, 15 L. R. A. 531; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444. 60 HUSBAND AND WIFE. § 29 ment or refusal to perform the contract, according to the character of the disease as curable or permanent.^®® Of course, the fact that the contract had been re- scinded by mutual consent constitutes a good defense.^ ®^ The fact that the defendant, at the time of the promise, was not competent to marry, is not necessarily a de- fense.^^* Thus, the fact that, unknown to the plaintiff, the defendant was already married at the time of the promise, is no defense.^®* In this case the wrong con- ice Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 81 Am. St. Rep. 302, 51 L. R. A. 854; Sanders v. Coleman, 97 Va. 690, 34 S. E. 621, 47 L,. R. A. 581. See, contra, Hall v. Wright, El., Bl. & El. 746, 96 E. C. L. 746, and Smith v. Compton, 67 N. J. Law, 548, 52 Atl. 386, 58 L. R. A. 480. 167 Mabln v. Webster, 129 Ind. 430, 28 N. E. 863^ 28 Am. St. Rep. 199. But the mere return of the engagement ring by the plaintiff after the defendant had broken the engagement does not constitute a rescission by the plaintiff. Kraxberger v. Roiter, 91 Mo. 404, 3 S. W. 872, 60 Am. Rep. 262. 168 In several cases it has been held that no action could be maintained for the breach of a contract to marry, where the de- fendant was not competent to marry, the promise in such case being considered contrary to public policy, and therefore void. Thus it has been so held where the defendant was impotent (Gu- lick V. Gulick, 41 N. J. Law, 13), or was a divorced person, forbid- den to marry again (Haviland v. Halstead, 34 N. Y. 643), or where the parties were within the prohibited degrees of relationship, — nephew and aunt (Campbell v. Crampton, 18 Blatchf. [U. S.] 150, 8 Abb. N. C. [N. Y.] 363) ; but kinship not within the prohibited de- grees is no defense, nor even matter in mitigation of damages (Alberts v. Albertz, 78 Wis. 72, 47 N. W. 95, 10 L. R. A. 584). In all of these cases, however, the plaintiff knew of the disability, though this fact does not seem to have particularly influenced the if celebrated, would have been valid. Campbell v. Crampton, 18 court. An agreement to marry between persons nearly related may be contrary to public policy and void, although the marriage itself, Blatchf. (U. S.) 150, 8 Abb. N. C. (N. Y.) 363. See this case for a discussion of the subject of conflict of laws in respect to contracts to marry. 160 Millward v. Littlewood, 5 Exeh. 775; Kelley v. Riley, 106 § 29 VALIDITY OP MARRIAGE. 61 sists, of course, not in the breach of the promise, which was unavoidable, but in the defendant's fraud in malt- ing a promise which he knew he could not perform. But no action can be maintained upon the promise if the plaintiff knew at the time that the defendant was married.^'" The damages awarded for breach of prom ise ofjnar- riage should include just coflipeijsation for the benefits lost_by the breach, as well as for the inental^ sufferm^. and the humiliation endured by the plaintiff. In esti- mating such damages the social condition, fortune^_char- ^ acter and _conduct jof .ihe. parties, and all J;lie_circum- ^t^Tices o£ the case should be taken into considera- tlon."i Mass. 339, 8 Am. Rep. 336, WoodrufC, Cas. 10; Coover v. Davenport, 1 Heisk. (Tenn.) 368, 2 Am. Rep. 706; Pollock v. Sullivan, 53 Vt. 507, 38 Am. Rep. 702, Woodruff, Cas. 13. iJoDrennan v. Douglass, 102 111. 341, 40 Am. Rep. 595; Paddock V. Robinson, 63 111. 99, 14 Am. Rep. 112. In the case last cited, both parties were married, and each knew the other to be so. iTiHolloway v. Griffith, 32 Iowa, 409, 7 Am. Rep. 208; Lawrence V. Cooke, 56 Me. 187, 96 Am. Dec. 443; Bennett v. Beam, 42 Mich. 346, 36 Am. Rep. 442; Hahn v. Bettingen, 84 Minn. 513, 88 N. W. 10, 50 L. R. A. 669; Green v. Spencer, 3 Mo. 225, 26 Am. Dec. 672; Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 81 Am. St. Rep. 302, 51 L. R. A. 854; Chellis v. Chapman, 125 N. Y. 214, 26 N. B. 308, 11 L. R. A. 784; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444; Perkins v. Hersey, 1 R. I. 493, Woodruff, Cas. 1; Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L. R. A. 660; Daggett v. Wallace, 75 Tex. 352, 13 S. W. 49, 16 Am. St. Rep. 908; Dent v. Pickens, 34 W. Va. 240, 12 S. E. 698, 26 Am. St. Rep. 921. The plaintiff's anxiety of mind is an element to be considered. Tobin v. Shaw, 45 Me. 331, 71 Am. Dec. 547. The plaintiff cannot recover for loss sus- tained by reason of her own wrongful act in breaking an engage- ment with another man in order to marry defendant. Trammell V. Vaughan, 158 JJo. 214, 59 S. W. 74, 81 Am. St. Rep. 302, 51 L. R. A. 854; Ilahn v. Bettingen, 84 Minn. 513, 88 N. W. 10, 50 L. R. A. 669. t)2 HUSBAND AND WIFE. § 29 Exemplary or punitive damages may be awarded in a properjcase.^^^ And the damages may be aggravated by certain circumstances, such as the seduction of the plaintiff on the faith of the promise/^* or a wanton and unsuccessful attack on the plaintiff's character by way of defense/''* or other circumstances. On the other hand, the amount of da mages may be red uced by cir- cumstances jn_ mitigation, such as the pl aintiff's bad j^haracter or conduct_before or after the promise or breach thereof."^ But the mere fact that since the breach the plaintiff's feelings towards the defendant 1" Kurtz V. Frank, 76 Ind. 594, 40 Am. Rep. 275; Coryell v. Col- baugh, 1 N. J. Law, 77, 1 Am. Dec. 192; Thorn v. Knapp, 42 N. Y. 474, 1 Am. Rep. 561; Chellis v. Chapman, 125 N. Y. 214, 26 N. E. 308, 11 L. R. A. 784. But see Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 81 Am. St. Rep. 302, 51 L. R. A. 854. iTswhalen v. .Layman, 2 Blackf. (Ind.) 194, 18 Am. Dec. 157; Kurtz V. Frank, 76 Ind. 594, 40 Am. Rep. 275; Sauer v. Schulenberg, 33 Md. 288, 3 Am. Rep. 174; Kelley v. Riley, 106 Mass. 339, 8 Am. Ilep. 336, Woodruff, Cas. 10; Bennett v. Beam, 42 Mich. 346, 36 Am. Rep. 442; Green v. Spencer, 3 Mo. 318, 26 Am. Dec. 672; Roper v. Clay, 18 Mo. 383, 59 Am. Dec. 314; Daggett v. Wallace, 75 Tex. 352, 13 S. W. 49, 16 Am. St. Rep. 908. Contra, Weaver v. Bachert, 2 Pa. 80, 44 Am. Deo. 159; Perkins v. Hersey, 1 R. I. 493, Woodruff, Cas. 1. See, also. Gates v. McKinney, 48 Ind. 562, 17 Am. Rep. 768; Burks V. Shaln, 2 Bibb (Ky.) 341, 5 Am. Dec. 616. 1T4 Lawrence v. Cooke, 56 Me. 187, 96 Am. Dec. 443. But not where the attack was made in good faith. White v. Thomas, 12 Ohio St. 312; Alberts v. Albertz, 78 Wis. 72, 47 N. W. 95, 10 L. R. A. 584. I'B Johnson v. Caulkins, 1 Johns. Cas. (N. Y.) 116, 1 Am. Dec. 102; Willard v. Stone, 7 Cow. (N. Y.) 22, 17 Am. Dec. 496; Alberts V. Albertz, 78 Wis. 72, 47 N. W. 95, 10 L. R. A. 584. See, also, Mc- Kee V. Nelson, 4 Cow. (N. Y.) 355, 15 Am. Dec. 384. This grows out of the fact that injury to the plaintiff's reputation is one ele- ment to be considered In estimating damages; but the defendant cannot avail himself of the plaintiff's bad reputation growing out of her Improper relations with himself. Boynton v. Kellogg, 3 Mass. 189, 3 Am. Dec. 122. § 29 VALIDITY OP MARRIAGE. 53 have changed from affection to dislike, and she is no longer -willing to marry him, is not a circumstance in mitigation.''" The fact that the defendant is afflicted with an incurable disease,"^ or that his motives and conduct in breaking the engagement have not been bad,'^® may be shown in mitigation. The question as to the amount of damages is left very largely to the jury. And their verdict will not be dis- turbed unless they were influenced by passion or preju- dice, or were misled by improper instructions from the court, or the damages were flagrantly excessive."^ An action for breach of promise is essentially a per- sonal action, and abates on the death of the defendant. It cannot be brought, continued, or revived against his personal representatives,^®" unless, as is sometimes the case, the right Is preserved by statute.'*^ So, also, an 1T6 Miller v. Hayes, 34 Iowa, 497; Bennett v. Beam, 42 Mich. 346, 4 N. W. 8, 36 Am. Rep. 442. 1T7 Mabin v. Webster, 129 Ind. 430? 28 N. B. 863, 28 Am. St. Rep. 199. But see Smith v. Compton, 67 N. J. Law, 548, 52 Atl. 386, 58 L. R. A. 480. 178 Thorn v. Knapp, 42 N. Y. 474, 1 Am. Rep. 561. 1T9 White V. Thomas, 12 Ohio St. 312, 80 Am. Dec. 347; Daggett V. Wallace, 75 Tex. 352, 13 S. W. 49, 16 Am. St. Rep. 908; and cases cited in note 171, supra. 180 stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146, Wood- ruff, Cas. 20; Hayden v. Vreeland, 37 N. J. Law, 372, 18 Am. Rep. 723; Wade v. Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250; Weeks v. Russell, 87 Tenn. 442, 3 L. R. A. 212; Grubb v. Suit, 32 Grat. (Va.) 203, 34 Am. Rep. 765. See, also, Kelley v. Riley, 106 Mass. 339, 8 Am. Rep. 336, Woodruff, Cas. 10. The action will possibly sur- vive where special damage is alleged and proved. See Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146; Grubb v. Suit, 32 Grat. (Va.) 203, 34 Am. Rep. 765. 181 Allen V. Baker, 86 N. C. 91, 41 Am. Rep. 444. (,4 HUSBAND AND WIPE. § 30 administrator cannot maintain an action for a breach of promise to his intestate, where no special damage is alleged.'*^ The a(;tion abates, also, upon the intermarriage of the parties ;^^^ but a mere offer of marriage by the defend- ant after suit brought does not defeat the suit. It con- stitutes no defense, and ordinarily is not even matter to be considered in mitigation of damages.^ ^^ And an offer made after breach, but before suit, is also no de- fense, though it may be a circumstance in mitigation.^ ^^ § 30. Marriage at common law. By the canon law, the consent of the two parties, ex- pressed in Avords of present mutual acceptance, consti- tuted, without more, an actual and legal marriage.^ ^^ And such informal consent constituted. at common law in England what was substantially a marriage, and the parties might be compelled in the spiritual courts to perfect it by a celebration in facie ecclesiae, — that is, by a person in holy orders.^ ^'^ But in England the sub- ject has been regulated by statute since 1753. In Scot- land it was decided in the great case of Dalrymple v. 182 Chamberlain v. Williamson, 2 Maule & S. 408. 183 Harris v. Tyson, 63 Ga. 629, 36 Am. Rep. 126. is4Holloway v. Griffith, 32 Iowa. 409, 7 Am. Rep. 208; Bennett v. Beam, 42 Mich. 346, 36 Am. Rep. 442. 185 Kurtz V. Frank, 76 Ind. 594, 40 Am. Rep. 275. But an offer to marry, made in good faith, before a definite breach of the con- tract, is a good defense. Kelly v. Renfro, 9 Ala. 325, 44 Am. Dec, 441. 180 Dalrymple v. Dalrymple, 2 Hagg. Consist. 54. 187 1 BI. Comm. 432. For a learned review of the canon law and the English law of marriage prior to the act of 1753 (26 Geo. II. c. 33), see Denison v. Denison, 35 Md. 361. § 3D VALIDITY OF MARRIAGE. 65 Dalrymple (1811)^*® that such informal marriages were valid. But in 1844, the house of lords, on an appeal from Ireland, held by an equally divided court that a marriage not celebrated by a person in holy orders (i. e., an Episcopal clergyman) was void.^*" This decision has been severely criticised and frequently disap- proved.^^" When the colonists came to America, bringing with them so much of the English law as they found appli- cable to their new situation, they usually had with them no persons in holy orders, and hence the requirement that marriages be celebrated by such persons, however it may have been in England, could not have been a part of the common law in this country, except possibly 188 Dalrymple v. Dalrymple, 2 Hagg. Consist. 54. 189 Reg. V. Millis, 10 Clark & F. 534. In this case the defendant, a member of the Church of England, contracted two marriages, the first being celebrated in Ireland, by a Presbyterian minister, ac- cording to the forms of the Presbyterian Church, and the second in England, according to the forms of the Church of England. He was prosecuted for bigamy, the question being whether his Brst marriage, not having been celebrated according to the rites of the Church of England, was valid. The lower court, by their unanimous opinion, held that the first marriage was invalid, and declared that, "by the law of England as it existed at the time of the passing of the marriage act [1753], a contract of marriage per verba de praesenti was a contract indissoluble between the parties themselves, affording to either of the contracting parties, by application to the spiritual court, the power of compelling the solemnization of an actual marriage, but that such contract never constituted a full and complete marriage in itself, unless made in the presence and with the intervention of a minister in holy or- ders." The entire learning of the subject is exhausted in this case, and the subsequent case of Beamish v. Beamish, 9 H. L. Cas. 274. By statute now in Great Britain, marriages miy be celebrated otherwise than by the rites of the Established Church. 100 See 1 Bishop, Mar., Div. & Sep. § 400 et seq. Long, D. R.— 5. 56 HUSBAND AND WIFE. § 30 Avhere the English religious conditions were repro- duced.i" It is held, therefore, in this country, by the great weight of authority, that a present agreement be- tween competent parties to take each other for husband and wife constitutes a valid marriage at common law, even if not in the presence of witnesses. No solemniza- tion or particular form or ceremony is required.^®^ The matrimonial consent will ordinarily be expressed verbally ; but it would seem that the mode of expression, whether by acts, signs, or words, is immaterial.^"* 101 In Denison v. Denison, 35 Md. 361, the court said: "It is true the common law of England has been adopted by the people of this state [Maryland], but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions. The ecclesiastical policy of England forms no part of the "common law as we have adopted it. We have in our system no tribunal, as in England, clothed with power and jurisdiction to enforce the .solemnization of marriages between parties contracting per verba de praesenti." In this case, however, it was held (following Reg. v.*Millis, 10 Clarlt & F. 534) that under the laws of Maryland, to constitute lawful marriage, there must be superadded to the civil contract some religious ceremony. 102 Meister v. Moore, 96 U. S. 76; Renfrow v. Renfrew, 60 Kan. 277, 56 Pac. 534, 72 Am. St. Rep. 350; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; People v. Mendenhall, 119 Mich. 404, 78 N. W. 325, 75 Am. St. Rep. 408; Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359; University of Michigan v. McGuckin, 62 Neb. 489, 87 N. W. 180, 57 L. R. A. 917; Eaton v. Eaton (Neb.) 92 N. W. 995, 60 L. R. A. 605; State v. Zichfeld, 23 Nev. 304, 62 Am. St. Rep. 800; Atlantic City R. Co. V. Goodin, 62 N. J. Law, 394, 42 Atl. 333, 72 Am. St. Rep. 652, 45 L. R. A. 671; Gall v. Gall, 114 N. Y. 109; Hilton v. Roylance, 25 Utah, 129, 69 Pac. 660, 95 Am. St. Rep. 821, 58 L. R. A. 723; Williams v. Williams, 46 Wis. 464, 32 Am. Rep. 722; and cases cited in note 195, infra. 103 It has been said that the matrimonial consent may be ex- ' pressed by conduct as well as verbally, and that the parties may become husband and wife without exchanging any words on the subject. University of Michigan v. McGuckin, 62 Neb. 489, 87 N. § 31 VALIDITY OF MARRIAGE. 67 Thus, the marriage of a deaf and dumb person by acts and signs is valid.^"^ Text writers and judges have distinguished two forms of marriage at common law, namelj', (1) marriage per verba de prescnti, and (2) marriage per verba de fu- tiiro cum copula. We shall examine each of these sup- posed forms separately. § 31. Same — Marriage per verba de presenti. A marriage per verba de presenti is a marriage ef- fected by the exchange of words of present consent in any form. Thus, if the man says to the woman, "I now take you to be my wife," and she replies, "I noAV take you to be my husband," they are married at common law, without any further ceremony. The parties may so marry themselves without license, officiating minis- ter, or other officer, and without witnesses. No third W. 180, 57 L. R. A. 917. In this case the court said: "The' ulti- mate fact is not that the parties made a formal promise or con- tract, but that they mutually consented to a social relation. This consent may be expressed by conduct as effectively as by words, and proof of the conduct is proof of the consent." As an abstract proposition, this is doubtless true, but it is difficult to conceive how two persons capable of speech could enter upon so important a relationship without at least a verbal agreement to do so. At the aame time, it is not always possible to establish such agreement by direct proof, and it is well settled that it may be implied, or, more properly, inferred, from their conduct. See Renfrew v. Ren- trow, 60 Kan. 277, 56 Pac. 534, 72 Am. St. Rep. 350; Francis v. Francis, 31 Grat. _(Va.) 283. And see post, § 51. The only case In which a marriage might be naturally implied from conduct without express words of consent would seem to be where parties who have married while under disability continue to cohabit after the removal of the disability. See post, § 52. is^Harrod v. Harrod, 1 Kay & J. 4. In this case the court said: "Though our law requires certain formalities to be complied with. {)8 HUSBAND AND WIFE. § 31 person need be present.^^^ So, also, a marriage by a Avritten contract is valid.'*'® But the consent must be to a present marriage. Thus, an agreement to cohabit for a time as husband and wife, and then to marry, is not sufficient.*^^ Moreover, the consent must be uncon- such as the publication of banns and the lilte, as regards the cer- emony itself, it has never been held that repetition of the words of the marriage service is necessary. I have certainly known of cases of complete marriages where perhaps it was improper that the marriage should be celebrated, in which the parties, being of the poorer classes, have willfully abstained from making the responses, especially as to obedience on the part of the woman. Swinburne says that any sign of assent is sufficient. "When the hands of the parties are joined together, and the clergyman pronounces them to be man and wife, they are married if they understand that by that act they have agreed to cohabit together, and with no other person." losHiler v. People, 156 111. 511, 41 N. B. ISl, 47 Am. St. Rep. 221; Blanchard v. Lambert, 43 Iowa, 288, 22 Am. Rep. 245; State V. Walker, 36 Kan. 297, 59 Am. Rep. 556; Londonderry v. Chester, 2 N. H. 268, 9 Am. Dec. 61; Voorhees v. Voorhees, 46 N. J. Eq. 411, 19 Am. St. Rep. 404; Fenton v. Reed, 4 Johns. (N. Y.) 52, 4 Am. Dec. 244; Hayes v. People, 25 N. Y. 390, 82 Am. Dec. 364; Com. v. Stump, 53 Pa. 132, 91 Am. Dec. 198; Richard v. Brehm, 73 Pa. 140, 13 Am. Rep. 733; Conly's Estate, 185 Pa. 208; and cases cited in note number 192, supra. "The whole law on the subject is that, to render competent parties husband and wife, they must and need only agree in the present tense to be such, no time being contemplated to elapse before the assumption of the status. If .cohabitation follows, it adds nothing in law, although it may be evidence of marriage. It is mutual, present consent, lawfully ex- pressed, which makes the marriage." Mitchell, J., in Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 61 Am. St. Rep. 419, 34 L. R. A. 384, Woodruff, Cas. 28. ins People v. Mendenhall, 119 Mich. 404, 78 N. W. 325, 75 Am. St. Rep. 408; Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 61 Am. St. Rep. 419, 34 L. R. A. 384, Woodruff, Cas. 28; State v. Bittick, 103 Mo. 183, 23 Am. St. Rep. 869, 11 L. R. A. 587; State v. Zichfeld, 23 Nev. 304, 62 Am. St. Rep. 800. 1" Estate of Grimm, 131 Pa. 199, 18 Atl. 1061, 17 Am. St. Rep. i 32 VALIDITY OF MARRIAGE. 69 ditional. Thus, a declaration by a man to a woman with whom he is cohabiting that she is his lawful wife, in the event of a child being born in consequence of their cohabitation, does not constitute a marriage, al- though a child is born.^®* ^An agreement to keep the marriage secret does not invalidate it, altho ugh t he fact of secrecy might^be^ evi- ^ dence that no marriage ever .Mak. Pi&ce.^^* The marriage need not be followed by cohabitation. By the maxim of the civil la^y, Consensus non conciir bitus facit niiptiasf" nor is the consummation of the marriage by coition necessary to its validity.^"^ § 32. Saire — Marriage per verba de futuro cum copula. An agreement to marry at some future time (per veria- de futuro) does not constitute a marriage. The parties to such an agreement are simply ejigaged; but, according to the earlier authorities, if the agreement is followed by sexual intercourse, this constitutes a mar- 796, 6 L. R. A. 717; Peck v. Peck, 12 R. I. 485, 34 Am. Rep. 702. Where a man and a woman cohabited upon an agreement to marry as soon as they could procure a license, it was held that this did not constitute a marriage. Robertson v. State, 42 Ala. 509. i!)8 Stewart v. Menzies, 2 Rob. App. (Scotch) 547. i9» Dalrymple v. Dalrymple, 2 Hagg. Consist. 54; Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 61 Am. St. Rep. 419, 34 L. R. A. 384. 200 Dalrymple v. Dalrymple, 2 Hagg. Consist. 54; Jackson v. Winne, 7 Wend. (N. Y.) 47, 22 Am. Dec. 563; Barnett v. Kimmell, 35 Pa. 13; Hilton v. Roylance, 25 Utah, 129, 69 Pac. 660, 95 Am. St. Rep. 821, 58 L. R. A. 723. Cohabitation, however. Is strong evidence that consent was exchanged. See post, § 51. In Califor- nia it is held that an informal marriage without solemnization is not valid unless followed by cohabitation. Kilburn v. Kilburn, 89 Cal. 46, 26 Pac. 636, 23 Am. St. Rep. 447. 201 Franklin v. Franklin, 154 Mass. 515, 26 Am. St. Rep. 266. 70 HUSBAND AND WIFE. § 32 riage. This is called a marriage per verba de futiiro cum copula. A good deal of confusion has arisen from a misunderstanding as to the precise effect of such in- tercourse. The truth is that it has absolutely nothing to do with making the parties husbaiid and wife. Mere sexual intercourse does not change an engagement into a marriage. That this is true the numerous suits for breach of promise brought by women who have been se- duced under promise of marriage abundantly attest. Nevertheless, "where parties competent to contract have agreed to marry at some future time, if they have cop- itla, which is lawful only in the married state, in the absence of any evidence to the contrary, they will be presumed to have become actually married by taking each other for husband and wife, and to have changed their future promise to marry to one of present mar- riage. In such a case, the copula will be presumed to have been allowed on the faith of the marriage promise, and that the parties, at the time of such copula, accepted each other as man and wife."^"^ That is to say, the agreement per verba de future is changed to an agree- ment per verba de presenti before or simultaneously with the copula. In other words, the copula is evidence 202 Cartwright v. McGown, 121 111. 388, 12 N. E. 737, 2 Am. St. Rep. 105. And see. In support of the text. White v. White, 82 Gal. 427, 23 Pac. 276, 7 L. R. A. 799; Hiler v. People, 156 HI. 511, 41 N. E. 181, 47 Am. St. Rep. 221; Voorhees v. Voorhees, 46 N. J. Eq. 411, 19 Am. St. Rep. 404; Cheney v. Arnold, 15 N. Y. 345, 69 Am. Dee. 609; Gall v. Gall, 114 N. Y. 109; DUncan v. Duncan, 10 Ohio St. 181, Woodruff, Gas. 30; Peck v. Peck, 12 R. I. 485, 84 Am. Rep. 702, Woodruff, Gas. 36. A contract of marriage must be per verba in praeseny, but a promise to marry may be per verba in futuro. Cannon v. Alsbury, 1 A. K. Marsh. (Ky.) 76, 10 Am. Dec. 709. § 33 VALIDITY OB' MARRIAGE. 71 of a marriage, but is not itself marriage. If in fact there has been no present agreement, the parties are not married, notwithstanding copula. As a practical ques- tion, however, when parties live together apparently as man and wife without having been formally married, and there is no evidence that they are not married, they will be presumed in law to be married. This is on the principle that the law always presumes in favor of in- nocence, which presumption may be rebutted.^"^ It will be seen from the foregoing that the distinction between the two forms of marriage is a verbal one only, and there is but one kind in fact, namely, a marriage per verba de presenti. § 33. Formal marriage — Statutory provisions. Ordinarily, marriages are celebrated in some formal way, usually by a semireligious service, at which a min- ister officiates. This, as we have seen, was not neces- sary under the canon law or at common law. By the decree of the Council of Trent (1563), the canon law was changed, and all marriages not celebrated in the presence of a parish priest and two witnesses were de- clared void. Thi3 decree was never in force in Eng- land.^"* But by a number of statutes, beginning with the act of 1753, various formalities, such as the publica- tion of banns, procuring a license, the consent of parent or guardian, and solemnization by a clergyman, have been made necessary in England; and a marriage not 303 See post, § 51. 204 Beamish v. Beamish, 9 H. L. Cas. 274. 72 HUSBAND AND WIFE. § 33 « celebrated as required by the statutes is void.^"^ la most of the states, statutes authorize certain persons to perform the marriage ceremony, direct the procuring of the license, and the consent of parent or guardian in the case of an infant, and require a certificate of mar- riage to be returned and recorded, the provisions vary- ing in the different states. One of the principal objects of such statutes is to . preserve evidence of marriages.^"® It is generally held that their provisions are directory merely, and that a marriage good at common law, though not celebrated in compliance with the statute, is valid, unless the statute contains express words of nullity. ^""^ This view is the 205 Reg. V. Millis, 10 Clark & F. 534; Beamish v. Beamish, 9 H L. Cas. 274. 206 "Their object has manifestly been, not to declare what shall be requisite to th& validity of a marriage, but to provide a legiti- mate mode of solemnizing it. They speak of the celebration of its rite, rather than of its validity, and thsy address themselves princtpally to the functionaries they authorize to perform the cer- emony. In most cases the leading purpose is to secure a registration of marriages, and evidence by which marriages may be proved, — ■ for example, by certificate of a clergyman or magistrate, or by an exemplification of the registry." Per Strong, J., in Meister v. Moore, 96 U. S. 76. 207 Meister v. Moore, EnS V. S. 76; Farley v. Farley, 94 Ala. 501, 33 Am. Gt. Rep. 141; Cartwright v. McGown, 121 111. 388, 12 N. E. ■^37, 2 Am. St. Rep. 105; Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742; Blanchard v. Lambert, 43 Iowa, 228, 22 Am. Rep. 245; State V. Walker, 36 Kan. 297, 59 Am. Rep. 556; Renfrow v. Renfrew, 60 Kan. 277, 56 Pac. 534, 72 Am. 3t. Rep. 350; Holmes v. Holmes, 6 La. 463, 26 Am. Dec. 482; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359; State V. Bittick, 103 Mo. 183, 15 S. W. 325, 11 L. R. A. 587; State v. Zich- feld, 23 Nev. 304, 62 Am. St. Rep. 800, 34 L. R. A. 784; London- derry V. Chester, 2 N. H. 268, 9 Am. Dec. 61; State v. Robbins, 28 N. C. (6 Ired.) 23, 44 Am. Dec. 64; Simon v. State, 31 Tex. Cr. § 33 VALIDITY OF MARRIAGE. 73 one most consistent with tlie general attitude of the law towards marriage. Marriage is recognized as a natural right, which existed before the statutes. It is favored by the law, and is rather to be promoted than discour- aged. Eestrictions placed upon it are looked upon with disfavor, and all statutory regulations constituting bar- riers to marriage should be construed as directory merely if the language used will permit. The legisla- ture has full power to prescribe reasonable regulations relating to marriage, and to impose reasonable restric- tions upon the right to marry, and it may provide a punishment for those who solemnize or contract mar- riages in violation of the statutes ; but at the same time it is settled that punishment may be inflicted on those who so disregard the statutory conditions and prohibi- tions without rendering the marriage itself void.^"* In some states the courts, influenced by the peculiar -WQrdijtig_of_the statutes, or by the general history and intent of the state marriage laws, have held that the provisions of the statutes are mandatory, and that mar- riages not celebrated in accordance Avith the statutory requirements are void. In these states there can be no valid "common-law" marriage.^"* And in one state — R. 186, 37 Am. St. Rep. 802; Thompson v. Nims, 83 Wis. 261, 53 N. W. 502, 17 L. R. A. 847. For other authorities, see 19 Am. & Eng. Enc. Law (2d Ed.) 1195. ^os State V. Walker, 36 Kan. 297, 59 Am. Rep. 556, and other cases cited in note immediately preceding. 200 Norman v. Norman, 121 Cal. 620; Harris v. Harris, 85 Ky. 49; Robinson v. Redd's Adm'r, 19 Ky. L. R. 1422, 43 S. W. 435; State V. Hodgskins, 19 Me. 155, 36 Am. Dec. 742; State v. Bowe, 61 Me. 171; Denison v. Denison, 35 Md. 370; Milford v. Worcester, 7 Mass. 48; Com. v. Munson, 127 Mass. 459, 34 Am. Rep. 411; Dunbarton v. 74 HUSBAND AND WIFE. § 34 Maryland — a marriage is not valid unless celebrated by a religious ce^emon3^'"' It Avould seem that a distinction might properly be made between the several requirements of the statutes, some of them being regarded as mandatory, and others as directory merely. Thus, a court holding void a mar- riage not celebrated by an authorized person might hesitate to set aside a marriage otherwise regular mere- ly because the consent of parents or guardian was not obtained. This point, however, has not been decided."" § 34. Same — The celebrant. As we have already seen, it is not necessary, by the common law in force in this country, to constitute a valid marriage, that any marriage ceremony be per- formed. There is therefore no necessity for any cele- brant Avhatever. In England, however, a marriage is not fully perfected at common law unless celebrated in facie ccclesiae by a clergyman of the established church.^^^ And in Roman Catholic countries, in which Franklin, 19 N. S. 257; State v. Wilson, 121 N. C. 650, 28 S. B. 41G (it was formerly otherwise in this state, State v. Robbins, 28 N. C. [6 Ired.] 23, 44 Am. Dec. 64); Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411; Offleld v. Davis, 100 Va.- 250, 40 S. E. 910; In re McLaughlin's Estate, 4 Wash. 570, 30 Pac. C51, 16 L. R. A. 609; Beverlin v. Bsverlin, 29 W. Va. 732, 3 S. E. 36 (dictum). sioFornshill v. Murray, 1 Bland (Md.) 478, 18 Am. Dec. 344; Jackson v. Jackson, 80 Md. 176. 2ti In Norman v. Norman, 121 Cal. 620, 54 Pac. 143, 66 Am. St. Rep. 74, 42 L. R. A. 343, the court, in holding that a marriage cele- brated by an unauthorized person was void, said: "We do not think It necessary to decide whether it is mandatory to obtain a license; nor whether the minority of the defendant and want of consent of her parents or guardian would invalidate the marriage." 212 See ante. « 33. § 34 VALIDITY OP MARRIAGE. 75 marriage is regarded as a sacrament, it is customary to require the presence and benediction of a priest in or- der to give validity to a marriage.^'* In tliis country the statutes universally designate the persons who may perform the marriage ceremony, such authority being given to clergymen and priests of the various religious denominations, and to various civil oflicers, such as judges, magistrates, justices of the peace, mayors of cities, etc., the statutes differing some- what as to the persons so authorized.^" By the stat- utes of England and the acts of congress, consular offi- cers are authorized to celebrate marriages in foreign countries.-^^ A clergyman, in the administration of marriage, is a public civil officer, and does not differ in this capacity from a judge or justice of the peace in the performance of the same duty.^" The performance by a clergyman or other officer of the marriage ceremony is prima facie proof of his official character and authority, and, in the absence of evidence to the contrary, it will be presumed that be was duly authorized.^^'^ The statutes providing for the celebration of mar- 213 Rice V. Rice, 31 Tex. 174. 21* See 1 Stimson, Am. St. Law, § 6120. See, generally, as to who may celebrate marriage under various statutes, Jones v. Jones, 18 Me. 308, 36 Am. Dec. 723; Com. v. Munson, 127 Mass. 459, 34 Am. Rep. 411; Londonderry v. Chester, 2 N. H. 268, 9 Am. Dec. 6. State V. Kean, 10 N. H. 347, 34 Am. Dec. 162. > 215 55 & 56 Vict. c. 23; U. S. Rev. St. § 4082, 2 Fed. St. Ann. 818, 2 U. S. Comp. St. 2768. 218 Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121. 217 Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121. See post, § 50. 76 HUSBAND AND WIFE. § 35 riages by designated persons, like other statutory regu- lations of the subject, are generally regarded as direct- ory merely, and the fact that the celebrant was not authorized to perform the ceremony does not affect the validity of the marriage, although it may subject such person to a penal ty.^^* In .some states, however, the marriage is held void in such case.^^* So, also, in some states, a marriage celebrated by the parties themselves, with no officiating clergyman or officer, is void.^^° § 35. Marriage ceremony without matrimonial intent. The mere performance of a marriage ceremony does not make the parties husband and wife where they do not in fact intend to become such.^^^ Thus, a ceremony performed in jest is no marriage, even though performed by a proper officer, Avho supposes the parties to be in earnest ;^^^ but if either party is in earnest, the mar- 218 Londonderry v. Chester, 2 N. H. 268, 9 Am. Dec. 61; Simon v. State, 31 Tex. Cr. R. 186, 20 S. W. 399, 716, 37 Am. St. Rep. 802. 210 Norman v. Norman, 121 Cal. 620, 54 Pac. 143, 66 Am. St. Rep. 74, 42 L. R. A. 343; Ligonia v. Buxton, 2 Me. 102, 11 Am. Dec. 46; State V. Bowe, 61 Me. 171. 220MUford V. Worcester, 7 Mass. 48; Com. v. Munson, 127 Mass. 459, 34 Am. Rep. 411. 221 "A simple marriage ceremony will not make a man and wo- man husband and wife. Capacity and consent are absolutely es- sential, but celebration only contingently so." Cartwright v. Mc- Gown, 121 111. 388, 12 N. B. 737, 2 Am. St. Rep. 105. In this case the element of capacity was lacking, the man having a wife living. 222 McClurg V. Terry, 21 N. J. Eq. 225. In this case a man and woman, at a social gathering, went through the marriage cere- mony, in jest, before a justice of the peace, who was in doubt as to whether the ceremony was in earnest or In jest. In holding the marriage void the court said: "Mere words, without any intention corresponding to them, will not make a marriage or any other civil contract; but the words are the evidence of such intention, and, if § 35 VALIDITY OF MARRIAGE. 77 riage is valid and binding. Tlius, where a man, witli evil intent, fraudulently induces a woman to go tlirougli the marriage ceremony before one falsely impersonating a clergyman, the woman being in earnest, and suppos- ing the marriage to be regular, the marriage is valid, unless the party defrauded elects to disaffirm it upon discovering the fraud. The other party is estopped to deny its validity.^^^ This doctrine is expressly afflrmed in a number of states by statutie. In such case it should be noted that the rule is not that the marriage is valid i-f affirmed by the party deceived, but that it is valid unless disaffirmed. This may lead to peculiar results. Should the woman so dec eived into a mock marriage die without di scoverin g th e fraud, the marriage, having nev er been d isaffirmed by her, is valid, and the man may claim marital rights in her property, although he never intended to become her husband, thus profiting by his own fraud.^^* once exchanged, it must he clearly shown that both parties in- tended and understood that they were not to have effect. In this case the evidence is clear that no marriage was intended by either party." A somewhat remarkable case in this connection is Clark v. Field, 13 Vt. 460, in which it was held that where a marriage ceremony was had under a mistake by the woman as to its legal effect, and was not intended by her to be operative without a future public cer- emony, and was not consummated, the marriage was a nullity. 223 Parley v. Farley, 94 Ala. 501, 33 Am. St. Rep. 141; Hayes v. People, 25 N. Y. 390, 82 Am. Dec. 364. See, also. State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. 22* The doctrine of the text, although unsupported by judicial au- thority, appears to be sound. But in Lee v. State (Tex. Cr. R.) 72 S. W a005, 61 L. R. A. 904, it was held that the man, In tba circumstances stated in the text, could not set up the marriage as valid as a defense to a prosecution for rape accomplished by meafl.i' 78 HUSBAND AND WIFE § 37 § 36. Motives inducing matrimony immaterial. Where the parties are married with matrimonial in- tent, the marriage is valid and binding, whatever may have been the motives inducing that intent. Thus, the fact that the marriage was for the purpose of escaping the payment of a debt,^^^ or of defrauding the creditors of the wife,^^® does not affect its validity. But a mere pretended marriage, without matrimonial intent", but for some collateral object, as to enable the woman to transact certain business as the man's wife,--" or to en- able the man to avoid marrying another woman,-'^ is, of course, a nullity. § 37. Curative statutes. Since marriage requires the consent of the parties, the state could not, of course, make a man and a woman husband and wife, without their consent, by an act of the legislature declaring them to be such; but where they have given their consent, but the state has not, it is competent for the state afterwards to give its consent by an act confirming the prior marriage contracted with- out such consent. Thus, the legislature may confirm a marriage invalid because not celebrated by a proper per- or because informalj^so or because the parties , 229 of the sham marriage. In this case, however. It would seem that the woman, by becoming prosecutrix, disaffirmed the marriage. 225 Barnett v. Kimmell, 35 Pa. 16. 22iiMcKinney v. Clarke, 2 Swan (Tenn.) 321, 58 Am. Dec. 59. 227 Campbell v. Sassen, 2 Wlls. & S. 309. 228 Stewart v. Menzies, 2 Rob. App. 547. 220 Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec 121- Rice v Rice, 31 Tex. 174. 230Dickerson v. Brown, 49 Miss. 357 (provision of state consti- tution). § 38 VALIDITY OF MARRIAGE. 79 were incompetent, being within the prohibited degrees of relationship.^^^ Such statutes, although retrospec- tive, are not unconstitutional.^^^ § 38. Estoppel to deny marriage. A person may, in- some circumstances, be estopped to deny the fact or validity of a marriage.^^^ This estop- pel may exist either in favor of the other party to the marriage, precluding the party estopped from main- taining a suit to have the marriage annulled, or of as- serting property rights inconsistent with the fact of marriage, or in favor of third persons who have dealt with either or both of the parties as husband and wife, in which case the party estopped will not be permitted to escape liability to such persons by deiiying the mar- riage. The cases directly presenting the question of estoppel to maintain a suit to have a marriage set aside are few. It would seem, on principle, that a party to a marriage could be estopped to maintain such a suit only in the case of a marriage voidable merely, and not void. The right to have a voidable marriage set aside is a right be- •?3i Harrison v. Stajte, 22 Md. 468, 85 Am. Dec. 658. 232 Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121; Harrison V. State, 22 Md. 468, 85 Am. Dec. 658. But in White v. White, 105 Mass. 325, 7 Am. Rep. 526, it was held that a special act mailing valid the marriage of two persons, one of whom had been divorced and prohibited from marrying again without leave of court, which had not been obtained, was unconstitutional under the state con- stitution as an interference with the jurisdictio^i of the court. See, generally, as to the subject-matter of this section, 1 Bishop, Mar., Div. & Sep. §§ 816-824; 19 Am. & Eng. Enc. Law (2d Ed.) 1216. 233 See note in 86 Am. Dec. 214. 80 HUSBAND AND WIFE. § 28 longing peculiarly to the parties to the marriage, and may be exercised or not, at their option. If both par- ties are satisfied with such a marriage, the state has ordinarily no interest-Jja-ha^Dg it annulled. It is oth- erwise, however, with a void marriage. Such a mar- riage, as we have seen, is an absolute nullity, and may be pronounced so to be in a suit brought at any time, even by strangers to the marriage. It is a matter of public concern that such a marriage should not stand. It would seem, therefore, that a party to the marriage could not become estopped to have it declared void by judicial decree. In accordance with these principles it has been held that a person entitled to have set "aside a marriage void- able for any reason, such as impotency^^* or fraud,^*^ whovoluntarily con tinues c ohabitation after_discovery oTthe invalidajting fact, cannot thereafter maintain a suit to annul the marriage. So, also, a person who, by fraud, induces another to contract with him or her an invalid marriage, is estopped to deny its validity. In 23i Continued cohabitation or delay in instituting a suit to have a marriage annulled for impotency are matters to be considered as affecting the plaintiff's right to maintain the suit; and in some cases, though not necessarily in all cases, may constitute a bar. See Guest v. Shipley, 2 Hagg. Consist. 321; T. v. D., L. R. 1 Prob. Div. 127; W. v. R., 1 Prob. Div. 405; Castleden v. Castleden, 9 H. L. Cas. 186; G. v. M., 10 App. Cas. 171; Peipho v. Peipho, 88 111. 438; Shafto v. Shafto, 28 N. J. Eq. 34. In Norton v. Seton, 3 Phil. 147, it was held that a man could not maintain a suit to have his marriage annulled for his own impotency, where he knew of the defect at the time of the marriage, and had cohabited with his wife for seven years. 235 See Leavitt v. Leavitt, 13 Mich. 452; Scroggins v. Scroggins, 14 N. C. (3 Dev.) 535. f 38 VALIDITY CF MARRIAGE. gl such case the guilty party ought not to be permitted to take advantage of his or her wrong.^^^ But where a marriage is not voidable merely, but absolutely void, it has been held in several cases that a party thereto may maintain a suit to have it declared a nullity, although he was aware of its invalidity at the time of the mar- riage. In such case there is no estoppel.^^^ It has been held that an infant incapable, for want of age, to enter into a valid contract of marriage, is in- capable, also, to estop himself bv a fraudulent declara- t ion of his age to a ssert the invalidity of the marriage in an action to have it annulled. Such declaration, therefore, works no estoppel, at least where the other party was not deceived thereby.^^® 236 1 Bishop, Mar., Div. & Sep. § 546. See State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. But the party deoeiveJ is not so estopped, and may repudiate the marriage upon discovering the fraud. See ante, § 35. 237 It has been so held in the case of a marriage with a deceased wife's sister (Andrews v. Ross, 14 Prob. Div. 15), or of a bigamous marriage (Miles v. Chilton, 1 Rob. Ecc. 684; Bonaparte v. Bona- parte [1892] Prob. Div. 402; Monnier v. Contejean, 45 La.. Ann. 419). But see, contra, as to bigamous marriages, Tefft v. Tefft, 35 Ind. 44; Rooney v. Rooney, 54 N. J. Bq. 231. In the case last cited, the suit to have the marriage declared a nullity was regarded as a suit of an equitable nature, and governed by equitable rules, rather than by the rules of the English ecclesiastical courts as es- tablished in the cases above cited. In the author's opinion, the doc- trine of the English courts is the true doctrine. While in some states courts of equity have jurisdiction of suits of this nature, such suits should not be governed by the rules applying to equita- ble suits relating to ordinary contracts, for, as has been so often held, marriage is a very different thing from an ordinary contract. 238 Eliot V. Eliot, 81 Wis. 295, 51 N. W. 81, 15 L. R. A. 289. It would seem, as Intimated by the court in this case, that the infant might be estopped if the other party was deceived into the mar- riage by the infant's false statements as to his age. Long, D. R.— 6. 82 HUSBAND AND WIFE. § 38 The mere fact that a person ciaimed to be married does not estop him or her from afterwards denying the marriage in an action brought to have it annulled.^^* . The question of estoppel to deny marriage has arisen in several cases involving property rights claimed un- der an alleged marriage. It seems that if the parties have cohabited as husband and wife, thus recognizing the marriage, neither party, nor the legal representa- tives of either, should be permitted, as against the other party, who believed the marriage to be valid, or his or her representatives, to deny the marriage for the pur- pose of defeating property rights acquired by virtue of the marriage.^'"' It has been held, however, that there can be no such estoppel in the case of a marriage ab- solutely void, since no civil rights can be acquired un- der a void mar-riage.-^* Clearly, such estoppel would exist only in favor of a partj' who had been deceived by the pretense and appearance of marriage; it could not be set up by one who knew that the marriage was in- valid.^^^ A person Avho, having been divorced, marries 230 Hunter v. Hunter, 111 Cal. 261, 43 Pac. 756, 31 L. R. A. 411. See, also, Amory v. Amory, 6 Rob. (N. Y.) 514. 240 See Dillon v. Dillon, 60 Ga. 204; Donnelly v. Donnelly, 8 B. Men. (Ky.) 113; Strode v. Strode, 13 Bush (Ky.) 227, 96 Am. Dec. 211; Young v. Foster, 14 N. H.-114; Johnson v. Johnson, 1 Cold. (Tenn.) 626. "Where a man and a woman married, both believ- ing that a former husband of the -woman was dead, which was not the fact, it was held that his heirs could not, after his death, recover property conveyed to her in pursuance of an ante-nuptial contract. Ogden v. McHugh, 167 Mass. 276, 45 N. B. 731, 57 Am. St. Rep. 456. 24iGathings y. Williams, 27 N. C. (b Ired.) 487, 44 Am. Dec. 49; Ponder v. Graham, 4 Fla. 23. 212 Robins v. Potter, 98 Mass. 532. § 38 VALIDITY OF MARRIAGE. 83 again in good faith, believing that the prior marriage has been dissolved, is not thereby estopped, on learning that the divorce is invalid, from denying the validity of the second marriage, and asserting his or her rights under the first.-''^ The parties may become estopped as to third persons. Thus, a man who holds out a woman as his wife is es- topped to deny that she is such as against third persons supplying her with necessaries on his credit as her hus- band. The question here is not so much whether the parties were in fact married, as whether they repre- sented themselves to be marri^ed.^** But a party de- ceived into a void marriage is not estopped, even as against third persons, to repudiate the marriage upon discovering the fraud.^*^ 243 Hilton V. Roylance, 25 Utah 129, 69 Pac. 660, 95 Am. St. Rep. 821, 58 L. R. A. 723. 24*1 Bishop, Mar., Div. & Sep. § 1150; 1 Greenl. Ev. §§ 27, 207; Johnston v. Allen, 39 How. Pr. (N. Y.) 506. See, also, Allen v. Wood, 1 Bing. N. C. 8, 27 E. C. L. 521. 245 Proctor V. McCall, 2 Bailey (S. C.) .298, 23 Am. Dec. 135. CHAPTER III. CONFLICT OF LAWS. § 39. In General — Foreign Marriares. 40. First General Rule — Marriage Valid Where Celebrated Valid Everywhere — Exceptions. 41. Same^Polygamous and Incestuous Marriages. 42. Same — Marriages Contrary to Local Public Policy. 43. Same — Marriages in Evasion of Law of Domicile. 44. Same — Marriages after Divorce. 45. Same — English Doctrine. 46. Second General Rule — Marriage Void Where Celebrated Void Everywhere. 47. Legalized Polygamy. 48. Change of Law — Marriage Governed by Law in Force Wher Celebrated. § 39. In general — Foreign marriages. It is a well-recognized principle of international law that every sovereign nation has a right to regulate its own internal affairs to suit itself, without interference by any other power. It may make such laws as it may deem best for the government of its own citizens, and, with certain exceptions, of foreigners within its terri- torial limits; but at the same time^ these laws can, in general, have no extraterritorial effect. They are fully operative only within the territorial jurisdiction of the country by which they are made. It is competent, how- ever, for a state to pass a law expressly applying to its own citizens while temporarily on foreign soil, though, of course, such a law can be enforced only upon the re- § 39 CONFLICT OF LAWS. 85 turn of such citizens to their own country. In no case may one nation assume to regulate the conduct or af- fairs of citizens of another country while they are in their own or some other foreign land. These principles apply with peculiar force to laws relating to marriage.' Every nation and every state and territory of the Union have their own peculiar laws regulating this important institution, and the differences in these laws have given rise to many cases in conflict of laws. It should be noted in this connection that the principles of interna- tional law above stated apply not only as between sov- ereign nations, but also as between the several states of the Union. So far as the regulation of marriage is concerned, the states are fully sovereign. Under the constitution of the United States, the power to control and regulate marriages within a state is left entirely ta 1 "Marriage being, as already suggested, an organic institution in every civilized and well-regulated nation, no such nation can pre- serve its own social order, or enjoy its independent right to se- cure its own welfare in its own way, if any other sovereign could, without its consent, dissolve or disturb that domestic relation of its citizens which Is most essential to its prosperity, moral power, and happiness. To concede such a right of foreign interference would be as suicidal in principle as to acknowledge foreign con- trol over any other institution, or the terra firma of a state; and therefore it would seem to be sufficiently obvious,' without the light of direct judicial authority, that no nation should ever ar- rogate any such power over the marriage contracts of foreigners not domiciled within its jurisdictional limits, and that no free state, regardful of its rights or its dignity, should ever, by ac- quiescence or otherwise, recognize any such assumed right of in- termeddling with its domestic institutions by any foreign state." Per Robertson, C. X, in Maguire v. Maguire, 7 Dana (Ky.) 181. See, also, Sneed v. Ewiug, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41. 85 HUSBAND AND WIFE. § 40 the state, and the. federal government has no jurisdic- tion in the matter. - We shall now examine in detail the subject of the validity of foreign marriages. The general rnle is that the question as to the validity of a marriage is to be determined by the law of the place where the marriage was celebrated. A marriage valid Avhere celebrated is valid everywhei-e, and, conversely, a marriage invalid wliere celebrated is iirv'alid everywhere. § 40. First g'eneral nilc — Marriage valid where celebrated valid eveiywliere — Exceptions. Since marriage is universally recognized as constitut- ing the foundation of human society, it is rightly deemed to be an international institution, governed, in its es- sentials, by principles of law prevailing among all en- lightened nations. The well-being of society, the legiti- macy of offspring, and the disposition of property alike demand that one state or country shall recognize the validity of marriages contracted in other states or coun- tries, according to the laws of the latter, unless some positive statute or pronounced public policy of the par- ticular state demands otherwise.^ It is therefore a rule 2 state V. Gibson, 36 Ind. 389, 10 Am. Rep. 42; State v. Jackson, 80 Mo. 175, 50 Am. Rep. 499; Prasher v. State, 3 Tex. App. 263, 30 Am. Rep. 131; Green v. State, 58 Ala. 190, 29 Am. Rep. 739. Con- gress has no power, under the constitution, to regulate marriage on the high seas, between citizens of the several states. Nor- man V. Norman, 121 Cal. 620, 54 Pac. 143, 66 Am. St. Rep. 74, 42 I^. R. A. 343. s Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 10 Am. St. Rep. 648, 2 L. R. A. 703. The opinion in this case contains probably the best discussion of the validity of foreign marriages to be found In § 41 CONFLICT OP LAWS. 87 of universal recognition in all civilized countries that a marriage valid where celebrated is valid everywhere.* To this rule, however, there are some exceptions,^ name- ly, ( 1 ) marriages deemed contrary to the law of nature as generally recognized in Christian countries; (2) mar- riages positively prohibited in a state or country because contrary to local public policy. We sKall consider each exception separately. § 41. Same — Polygamous and incestuous marriages. The first class of exceptions comi^rises marriages re- pugnant to the moral sense of Christendom, of which the only recognized examples are polygamous and in- cestuous marriages. Such marriages are held void in all Christian countries, although valid where celebrated. The cases on the subject are few, but this exception is the reports. The subject is exhaustively discussed in a note in 57 L. R. A. 155. 4 Harding v. Alden, 9 Me. .140, 23 Am. Dec. 549; Hiram v. Pierce, 45 Me. 367, 71 Am. Dec. 555; E'ornshill v. Murray, 1 Bland Ch. (Md.) 479, 18 Am. Dec. 344; Sutton v. Warren, 10 Mete. (Mass.) 451, Woodruff, Cas. 46; Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509; Hills v. State, 61 Neb. 589, 85 N. W. 836, 57 L. R. A. 155; Van Voorhis V. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505; State v. Ross, 76 N. C. 242, 22 Am. Rep. 678; Phillips i. Gregg, 10 Watts (Pa.) 158, 36 Am. Dec. J 58. It has been held that the general rule that a marriage valid where made is valid everywhere applies to Indian marriages celebrated between members of a tribe which still main- tains its tribal relations and customs. Earl v. Godley, 42 Minn. 361, 44 N. W. 254, 18 Am. St. Rep. 517, 7 L. R. A. 125; Johnson V. Johnson, 30 Mo. 72, 77 Am. Dec. 598. But see, contra, Roche V. Washington, 19 Ind. 53, 81 Am. Dec. 376. 5 See True v. Ranney, 21 N. H. 52, 53 Am. Dec. 164, in which it was held that the law of the place of celebration would not pre- vail if recognizing as valid the marriage of an imbecile. 88 HUSBAND AND WIFE. § 42 admitted by all the authorities. To bring a marriage within the exception as polygamous, one of the parties must have another consort living. To bring it within the exception as incestuous, the relation between the parties must be such as makes a marriage incestuous according to the general opinion of Christendom, which relation includes only persons in the direct line of con- sanguinity and brothers and sisters.® In England it is held that a marriage contracted by a British subject according to laws and customs per- mitting polygamy is void in England, although the par- ticular marriage was not polygamous. The ground for this decision is that such a union is not marriage as un- derstood in Christendom, namely, the union for life of one man and one woman, to the exclusion of all others.^ § 42. Same — Marriages contrary to local public policy. A second exception to the general rule comprises mar- riages which liave been declared by statute to be void 6 Com. V. Lane, 113 Mass. 458, IS Am. Rep. 509; Pennegar V. State, S7 Tenn. 244, 10 Am. St. Rep. 649, 2 L. R. A. 703. In the case of incestuous marriages, the exception holds good with respect to such only as, being manifestly contrary to the law of nature, and subversive of the good order of society, are alike con- demned by the common sentiment of all civilized, or at least of all Christian, nations. Stevenson v. Gray, 17 B. Mon. (Ky.) 193. In this case a marriage celebrated in Tennessee between a nephew and his uncle's widow, not prohibited by the laws of that state, was held valid in Kentucky, where the parties were domiciled, and where such marriages were prohibited. To the same effect see Sutton v. Warren, 10 Mete. (Mass.) 451, Woodruff Cas. 46, 7 Hyde v. Hyde, L. R. 1 Prob. Div. 130 (Mormon marriage); In re Bethel], 38 Ch. Div. 220 (African marriage). See, also, Roche V. Washington, 19 Ind. 53, 81 Am. Dec. 376. § 42 CONFLICT OP LAWS. 89 because contrary to. the public policy of the state.^ In a number of states such marriages, between citizens of the state, are held void, although contracted in a state in which they are not prohibited. The cases falling within this exception dii!fer somewhat in the different states, according to differences in state policy. Thus, in the Southern states, marriages between white and colored persons are within the exception.*" But in Mas- sachusetts it has been held that the marriage in Khode Island, where such marriages were valid, of a negro and a white person, domiciled in Massachusetts, where such marriages were prohibited, was valid in Massachu- setts.^" Similarly, in ■ several states, contrary to the 8 A state is not bound by international comity to give effect in her courts to marriage laws o£ another state repugnant to her own laws and policy. Roche v. Washington, 19 Ind. 53, 81 Am. Dec. 376. To the same effect see State v. Bell, 7 Baxt. (Tenn.) 12, 32 Am. Rep. 549. 9 State V. Tutty (Ga.) 41 Fed. 753; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683; Kinney v. Com., 30 Grat. (Va.) 858, 32 Am. Rep. 692. / 10 Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 130. This prohibition is not found in the present statutes of Massachusetts. The cases relating to miscegenation are sometimes considered as conflicting, but they are not really so, although opposite con- clusions are reached upon the same state of facts. They all agree that a foreign marriage valid where celebrated will not be sus- tained if contrary to local public policy. The difference con- sists in the view taken as to whether or not such marriages are contrary to public policy, — a question which each state must de- termine for itself. Plainly, the evil to be anticipated from an oc- casional case of miscegenation in Massachusetts, where negroes are few, is inconsiderable, and hence such marriages may not un- naturally be considered as not opposed to public policy,— itself a most indefinite thing. In the southern states, however, where negroes are numerous, the conditions are far different, and such 90 HUSBAND AND WIFE. § 43 ticcided weight of authority in other states, marriages out of the state in evasion of impediments following divorce are held void as contrary to public policy.^' It should be noted that state laws prohibiting certain marriages apply only to marriages celebrated within the state, or, in some cases, to marriages of persons domi- ciled in the state celebrated in other states. The mar- riage in a state of persons domiciled there, with the ex- ception of polygamous and incestuous marriages, if valid in that state, will be upheld in another state to -which such persons may afterwards remove, although prohibit- ed in the latter state.^- § 43. Same — Marriages in evasion of law of domicile. It is held by some courts that marriages prohibited in marriages are naturally and rightly condemned. Public policy will naturally and necessarily vary with varying conditions. 11 See note 18, infra. 12 State V. Ross, 76 N. C. 242, 22 Am. Rep. 678. In this case a white woman domiciled in North Carolina, went to South Carolina for the purpose of marrying, and there married a negro domi- ciled in that state. Soon afterwards she returned with her hus- band to North Carolina to reside. Such marriages were pro- hibited in North Carolina, but lawful In South Carolina. It was held that the marriage was valid in North Carolina. See, also, "West Cambridge v. Lexington, 1 Pick. (Mass.) 505, 11 Am. Dec. 231. The case of State v. Bell, 7 Baxt. (Tenn.) 12, 32 Am. Rep. 549, probably conflicts with the text. It does not appear from the report where the parties were domiciled, but in a later case in the same state the court said that in State v. Bell "this court held that a marriage between a white person and a negro, valid in Mississippi, where celebrated, was void here, in a case where the parties were domiciled in Mississippi at the time of the marriage." Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 10 Am. St. Rep. 648, 2 L. R. A. 703. The Tennessee court thus places such mar- riages on the same footing as "polygamous and incestuous mar- riages. § 43 CONFLICT OF LAWS. 91 a state are void there, although celebrated in another state, where there is no such prohibition, if the parties, being domiciled in the former state, went out of the state to be married, for the purpose of evading the laAV of their domicile. Such an e-vasion is considered a fraud upon the law of the domicile.^^ Other courts hold that the marriage is not void merely because contracted in evasion of the state law, unless the statute expressly so provides.^* This appears to be the better doctrine, for if a statute does not have an extraterritorial operation of its own force, it is difficult to see how the mere intent of the parties can give it this effect. Bat a state may protect itself from such evasion of its law by a statute placing marriages so contracted out of the state on the sa:--ie basis as those celebrated within the state, thus i3Dupr.e V. Boulard, 10 La. Ann. 411; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683; In re Wilbur's Estate, 8 Wash. 35, 40 Am. St. Rep. 886; Kinney v. Com., 30 Grat. (Va.) 858, 32 Am. Rep. 690; and cases cited in § 44, note 18. See, also, Newman v. Kimbrough (Tenn. Ch. App.) 59 S. W. 1061, 52 L. R. A. 668, and note in 60 Am. St. Rep. 941. It is held in Louisiana that the mar- riage of a minor contracted in another state in evasion of the laws of Louisiana will not effect an emancipation. Maillefer v. Saillot, 4 La. Ann. 375; Babin v. Le Blanc, 12 La. Ann. 367. In the case first cited the court said: "Through motives of public policy, the law does not pronounce the nullity of marriages thus contracted; but it is equally against public policy that they should be held to confer upon the parties all the rights which result from the marriages of minors legally authorized." !■* Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131; Com. v. Graham, 157 Mass. 73, 31 N. E. 706, 34 Am. St. Rep. 255, 16 L. R. A. 578; and cases cited in § 44, note 19. To the same effect, see Stevenson v. Gray, 17 B. Mon. (Ky.) 193,- distinguished in Kinney V. Com., 30 Grat. (Va.) 858, 32 Am. Rep. 690, on the ground that the prohibited marriage upheld in that case was voidable merely, and not absolutely void. 92 HUbBAND AND WIFE. § 43 giving to the prohibitory statute an extraterritorial ef- fect.15 It should be noted that the decisions Avhich declare void marriages in evasion of the law of the domicile are most if not all of them cases in which the particular marriage was repugnant to local public policy. And it has been suggested that where a statute merely pro- hibits certain marriages, without expressly declaring that marriages contracted in disregard of the prohibi- tion shall be void, the question whether or not a mar- riage contracted out of the state in evasion of its laws shall be held void will depend largely upon the char- acter of the prohibition sought to be evaded. If the prohibition is the result of a positive state policy that all marriages so prohibited shall be void- in the state, wheresoever contractad, they will be so held; but if the prohibition relates to mere matters of form or ceremony or minor qualifications of the parties, not involving a question of public morals, the marriage, if contracted elsewhere, will be upheld, notwithstanding the evasion of local law.^® Instate V. Tutty, 41 Fed. 753, 7 L. R. A. 50; Tyler v. Tyler, 170 Mass. 150. Under the Massachusetts statute, both parties must have had the intention to evade the state laws in order to render the marriage void. Whippen v. "Whippen, 171 Mass. 560. 16 Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 10 Am. St. Rep. 648. In this case the court, in discussing the second class of exceptions to the general rule that a marriage valid where celebrated is valid everywhere, said: "The second class, i. e., those prohibited in terms by the statute, presents difBculties that are not always easy of solution, and have led to conflicting de- cisions. This class may be subdivided into two classes: First, where the statutory prohibition relates to form, ceremony, and qualification, it is held that compliance with the law of the place § 43 CONFLICT OF LAWS. 93 A marriage on the high seas, or in some place where there is no local law, contracted in evasion of the law of marriage Is sufficient, and Its validity will be recognized, not only in other states generally, but in the state of the domicile of the parties, even where they have left their own state to mar- ry elsewhere, for the purpose of avoiding the laws of their domi- cile. Instead of being a subdivision of the second class of ex- ceptions, it would be more accurate to say that it is an exception to the exception, and falls within the operation of the general rule, first announced, of 'valid where performed, valid everywhere.' To the second subdivision of the second class of exceptions be- long cases which, prohibited by statute, may or may not embody distinctive state policy, as affecting the morals or good order of society. "It is not always easy to determine what is a positive state policy. It will not do to say that every provision of a- statute prohibiting marriage, under certain circumstances, is indicative of a state policy in the sense in which it is used in this connec- tion. To so hold would be to overturn this most solemn rela- tion, involving legitimacy of offspring, homestead, dower, and the rights of property, in the face of the conclusions of approved text writers, and the concurrence of the adjudications in numerous cases, relating not only to forms or ceremonies and qualifications of the parties, but also to prohibited degrees of relationship, not incestuous in the common opinion of Christian countries, and relating to marriages between persons of different race and color. Each state or nation has ultimately to determine for itself what statutory inhibitions are by it intended to be imperative, as in- dicative of the decided policy of the state concerning the morals and good order of society, to that degree which will render It proper to disregard the jus gentium of 'valid where solemnized, valid everywhere.' The legislature has, beyond all possible ques- tion, the power to enact what marriages shall be void in its own state, notwithstanding their validity in the state where celebrated, whether contracted between parties who were in good faith domi- ciled in the state where the ceremony was performed, or between parties who left the state of domicile for the purpose of avoiding its statutes, when they come to return to the state; and some of the states have in terms legislated on the subject. Where, however, the legislature, as in our own state, has not deemed it proper or necessary to provide in terms what shall be the fate 94 HUSBAND AND WIFE. § 44 of the domicile of the parties, is void, since, in such case, the parties will be subject to the law of their domicile." § 44. Same — Marriages after divorce. The question as to the validity of foreign marriages has arisen in numerous cases in which a divorced per- son prohibited by statute or the decree of divorce from marrying again leaves the state for the purpose of evad- ing such prohibition, marries in another state, and then of a marriage valid where performed, but has in the particular case contented itself with merely prohibiting such marriage, the duty is devolved upon the courts of determining, from such leg- islation as is before it, whether the marriage in the other state Is valid or void when the parties come into this state. "If, as we have seen, the statutory inhibition relates to matters of form or ceremony, and in some respects to qualification of. the parties, the courts would hold such marriage valid here; but if the statutory prohibition is expressive of a decided state policy as a matter of morals, the courts must adjudge the marriage void, here, as contra bonos mores." This distinction has been approved in State v. Tutty, 41 Fed. 753, 7 L. R. A. 50; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 34 L. R. A. 773; and Estate of- Stull, 183 Pa. 625, 39 Atl. 16, 63 Am. St. Rep. 776. In the latter case the court said: "The foregoing reasoning is satisfactory to us. It involves practically three dis- tinct ideas, to-wit: (1) That the foreign marriage is contrary to the positive statute of the domicile; (2) that it is contrary to the public policy of the government of the domicile, in that It offends against the prevailing sense of good morals among the people there dwelling; and (3) it was contracted for the express purpose of evading the positive law of the domicile, and is there- fore to be regarded as a fraud upon the government and people of the domiciliary residence. The combination of these three ob- jections seems to be most fatal to the validity of the marriage thus contracted. The writer is disposed to regard each one of them as fatal." IT Norman v. Norman, 121 Cal. 620, 54 Pac. 143, 66 Am. St. Rep. 74, 43 L. R. A. 343. See note in 60 Am. St. Rep. 947. § 44 CONFLICT OF LAWS. 95 returns to the state of his domicile. It is held by some courts that such marriages are void in the domicile state, although valid in the state where celebrated.^^ But by the weight of authority it is held that these prohibitions have no extraterritorial effect unless the statutes ex- pressly^so provide, and such marriages are valid in the domicile state, although contracted elsewhere with in- tent to evade its laws.^" Statutes imposing such pro- hibitions are of a penal nature, and every presumption is against an intent of the legislature to make them op- erative beyond the limits of the state, and they will not be given this effect unless such an intent is clearly ex- pressed in the statute.^" Of course, if the statute ex- pressly so provides, a marriage in evasion of the prohi- bition is void.^^ But if the prohibition operates upon both parties, and is imposed temporarily, not as a punishment, but mere- ly for the purpose of affording an opportunity to take an appeal from the decree of divorce, the better view is that a marriage contracted in another state in viola- tion of the prohibition is void. This is upon the prin- is Estate of Stull, 183 Pa. 625, 39 Atl. 16, 63 Am. St. Rep. 776, 39 L. R. A. 539; Williams v. Oates, 27 N. C. (5 Ired.) 535; Pen- negar v. State, 87 Tenn. 244, 10 S. W. 305, 10 Am. St. Rep. 648, 2 L. R. A. 703. See, also, Newman v. Kimbrough (Tenn. Ch. App.) 59 S. W. 1061, 52 L. R. A. 668. i»Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505; Thorp V. Thorp, 90 N. Y. 602, 43 Am. Rep. 189; Moore v. Hegeman, 92 N. y. 521, 44 Am. Rep. 408; State v. Shattuck, 69 Vt. 403, 60 Am. St. Rep. 936, 40 L. R. A. 428; note in 60 Am. St. Rep. 941. See, also. Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509. 20 Van Voorhis v. Brintnall,.S6 N. Y. 18, 40 Am. Rep. 505. 21 Tyler v. Tyler, 170 Mass. 150. 96 HUSBAND AND WIFE. § 45 ciple, not that the prohibition has extraterritorial force, but that the parties have not been finally divorced. And since no final divorce has been granted, the second mar- riage would be void, even in the state where celebrated.^^ § 45. Same — English doctrine. The general rule that a marriage valid where cele- brated is valid everjnvhere has received in England an interpretation which renders it, in most cases, a nul- lity. It is there held that while the forms and cere- monies of marriage are governed by the law of the' place where the marriage is celebrated, the essentials of the marriage, including the capacity of the parties, are to be determined by the law of the country in which the parties are domiciled at the time of the marriage. The leading case in which this doctrine is announced is Brook V. Brook,^^ in which it was held that a marriage in Denmark of a man with his deceased wife's sister, both parties being British subjects, was void in Eng- land, though valid in Denmark. Tliis case has been se- verely criticised,^* but it has received judicial approval in several American cases.^° 22 McLennan v. McLennan, 31 Or. 480, 50 Pac. 802, 65' Am. St. Rep. 835, 38 L. R. A. 863. Contra, Willey v. Willey, 22 Wash. 115, 60 Pac. 145, 79 Am. St. Rep. 923. It should be noted that the validity and force of a decree of divorce is to be determined by the law of the state in which the divorce is granted. If not a valid or effective divorce in that state, it is not effective in any other state. See post, § 142. 23 Brook V. Brook, 9 H. L. Cas. 193. For a discussion of the English doctrine, see 5 Enc. Laws Eng. 434. 24 See 1 Bishop, Mar., Div. & Sep.J§ 876-879; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509. 25 State V. Kennedy, 76 N. C. 251, 22 Am. Rep. 683; Kinney v. g 47 CONFLICT OP LAWS. 97 § 46. Second general rule — Marriage void where celebrated void everywhere. Conversely to the rule just discussed, a marriage void where celebrated is void everywhere.^® To this rule there are some exceptions in the case of persons tem- porarily in a foreign country, who may, in some cases, contract a valid n^arriage without celebrating it accord- ing to the local requirements. Examples are, marriages within the lines of an army of invasion of subjects of the invading power,^'' and marriages according to the law of their domicile of persons in a foreign country who could not marry according to the local law.^* § 47. legalized polygamy. The differences in the marriage laws of the several states may lead to an interesting result. Under the de- cision of the Virginia court, the marriage in Washing- ton, D. C, of a negro man and a white woman, both residents of Virginia, who go to Washington for the pur- pose of being married in evasion of the Virginia stat- utes, is void in Virginia, though valid in Washington.^^ Com., 30 Grat. (Va.) 858, 32 Am. Rep. 690. In these cases the approval Is by way of dictum merely, for the particular marriages considered were held void because repugnant to local public policy. The English doctrine seems to receive direct support, however, in Succession of Hernandez, 46 La. Ann. 962, 15 So. 461, 24 L. R. A. 831. 28 Scrimshire v. Scrimshire, 2 Hagg. Consist. 395; Middleton v. Janverln, 2 Hagg. Consist. 437; Canale v. People, 177 111. 219, 52 N. E. 310; Norcross v. Norcross, 155 Mass. 425, 29 N. B. 506. 27Ruding V. Smith, 2 Hagg. Consist. 371. 28 See 1 Bishop, Mar., Div. & Sep. §§ 886-906; Phillips v. Gregg, iO Watts (Pa.) 158, 36 Am. Dec. 158. 2» Kinney v. Com., 30 Grat. (Va.) 858, 32 Am. Rep. 690. Long, D. R. — 7. 98 HUSBAND AND WIFE. § 48 It follows that if, after returning to Virginia, the par- ties separate, the man remaining in Virginia and the woman going back to Washington, the man may marry a negro woman in Virginia (his prior marriage being void), and thereafter may divide his time between the two women, living in Virginia with the negress, his law- ful Virginia wife, and in Washington with the white woman, his no less lawful Washington wife. Thus we may have legalized polygamy.^®^ Possibly a further study of the laws of the different states might enable him to secure a third lawful wife in some other state. § 48. Change of law — Marriage governed by law in force when celebrated. As a general rule, the validity and effect of a mar- riage are to be determined by the law in force when the marriage was celebrated. Statutes changing the law will not be construed so as to operate retrospectively unless the intent that they shall so operate be clearly expressed or necessarily implied. Every reasonable doubt is resolved against a retrospective operation of the statute.^" 29a In this case, neither in Virginia nor in Washington could the man be prosecuted for bigamy or illicit cohabitation, for no state will enforce the criminal laws of another state, nor punish Its own citizens for acts done outside of the state, in the absence of a statute so providing. Of course, if either wife objected to the ar- rangement, she could get a divorce on the ground of adultery. 30 Stewart v. Vandervort, 34 W. "Va. 524, 12 S. E. 736, 12 L R A. 50. CHAPTER IV. PROOF OF MARRIAGE. § 49. In General. 50. Presumptions In Favor of Marriage — In General. 51. Same — Presumption from Cohabitation and Repute. 52. Same — Cohabitation Originally Illicit. 53. Same — Presumption of Dissolution of Prior Marriage.- 54. Same — Strength of Presumptions. 55. Proof of Foreign Marriages. 56. Proof in Criminal Cases. 57. Burden of Proof. . § 49. In general. Marriage is a fact, and may be proved, like any other fact, by any evidence competent under the general rules of evidence.^ Where the marriage has been formally celebrated, it may be proved by the marriage license and the return thereon,? the certificate of the celebrant,^ 1 Marriage may be proved by any species of evidence not pro- hibited by law which does not presuppose a higher species within the power of the party. Holmes v. Holmes, 6 La. 463, 26 Am. Dec. 482. The record of a decree of divorce In a suit of which the defendant had legal notice is evidence of the marriage. Hal- brook V. State, 34 Ark. 511, 36 Am. Rep. 17; Williams v. Williams, 63 Wis. 58, 23 N. W. 110, 53 Am. Rep. 253. But it is not necessarily conclusive. Williams v. Williams, 63 Wis. 58, 23 N. W. 110, 53 Am. Rep. 253. See, generally, as to the presumption and proof of mar- riage, 19 Am. & Eng. Enc. Law (2d Ed.) 1197-1209; notes in 22 Am. Dec. 157; 57 Am. Rep. 451; 47 Am. St. Rep. 228; 89 Am. St. Rep. 198; 7 L. R. A. 799. 2 Tucker v. People, 122 111. 583, 13 N. E. 809. 3 Northrop v. Knowles, 52 Conn. 522, 52 Am. Rep. 613; State V. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L. R. A. 125; Moore v. 100 // HUSBAND AND WIFE. § 49 or the marriage record, or a certified copy thereof.* Such documentary evidence, when readily obtainable, is the obvious and most convenient means of proving the marriage; but it is not the only means of proof. Thus, the marriage may be proved by the witnesses to the cere- mony,^ and for this purpose the clergyman or officer who performed the ceremony is a competent witness, both of the fact that the ceremony was performed,® and of his authority to perform it.'' So, also, the parties to the marriage are competent witnesses to prove it,® or it may be proved by their admissions, declarations, or confessions.® Com., 19 Leigh (Va.) 639. See, also, Hutchins v. Klmmell, 31 Mich. 126, 18 Am. Rep. 164; State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754. iHalbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; State v. White, 19 Kan. 445, 27 Am. Rep. 137; Com. v. Hayden, 163 Mass. 453, 47 Am. St. Rep. 468. See, also, Smith v. Smith, 1 Tex. 621, 46 Am. Dec. 121. 6 State V. Kean, 10 N. H. 347, 34 Am. Dec. 162; Warner v. Com., 2 Va. Cas. 95. 6 People V. Imes, 110 Mich. 250; Taylor v. State, 52 Miss. 84; Bird V. Com., 21 Grat. (Va.) 800; State v. Goodrich, 14 W. Va. 834. ' Com. V. Hayden, 163 Mass. 453, 47 Am. St. Rep. 468, 28 L. R. A. 318; Bird v. Com., 21 Grat. (Va.) 800. The testimony of wit- nesses that the celebrant was authorized and performed the ceremony in his official capacity is sufficient proof of his author- ity. State V. Robbins, 28 N. C. (6 Ired.) 23, 44 Am. Dec. 64; State V. Abbey, 29 Vt. 60, 67 Am. Dec. 754; Warner v. Com., 2 Va. Cas. 95. 8 State V. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L. R. A. 125; Com. V. Hayden, 163 Mass. 453, 47 Am. St. Rep. 468, 28 L. R. A. 318; Richard v. Brehm, 73 Pa. 140, 13 Am. Rep. 733. Cameron v. State, 14 Ala. 546, 48 Am. Dec. Ill ; Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; State v. Schweitzer, 57 Conn. 532, 6 L. R. A. 125; Cook V. State, 11 Ga. 53, 56 Am. Dec. 410; Com. v. Jackson, 11 ^ § 50 PROOF OF MARRIAGE. § 50. Presumptions in favor of marriage — ^In general. In general, where a man and a woman have cohabited as man and wife, it will be presumed that they are mar- ried. Every presumption is in favor of the innocence of the parties and the legitimacy of their children. The law presumes morality and not immorality, marriage and not concubinage, legitimacy and not bastardy.^" Thus, where a formal marriage is proved, it will be pre- sumed that the parties were competent," and consent- ed,^^ that the celebrant was duly authorized," and that the ceremony was in all respects regular.^* But the pre- Bush (Ky.) 679, 21 Am. Rep. 225; State v. Libty, 44 Me. 469, 69 Am. Dec. 115; Wolverton v. State, 16 Ohio, 173, 47 Am. Dec. 373; Forney v. Hallacher, 8 Serg. & R. (Pa.) 159, 11 Am. Dec. 590; State V. Abbey, 29 Vt. 60, 67 Am. Dec. 754; Womack v. Tankersley, 78 Va. 242; Warner v. Com., 2 Va. Cas. 95; Eldred v. Eldred, 97 Va. 606. An admission of marriage, contained in a letter, is com- petent evidence against a party. Com. v. Hayden, 163 Mass. 453, 40 N. E. 846, 47 Am. St. Rep. 468, 28 L. R. A. 318. See, also. Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263. In an action for criminal conversation with the plaintiff's wife, the defendant's declarations that he knew the woman was married to the plaintifl are competent evidence of the marriage. Forney v. Hallacher, 8 Serg. & R. (Pa.) 159, 11 Am. Dec. 590. 10 See, generally, cases cited in this section and sections imme- diately following. iiHarrod v. Harrod, 1 Kay & G. 4. See post, § 53. i2Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Fleming V. People, 27 N. Y. 329. 13 Jones v. Jones, 18 Me. 308, 36 Am. Dec. 723; State v. Robbins, 28 N. C. (6 Ired.) 23, 44 Am. Dec. 64; Estate of Megginson, 21 Or. 387, 28 Pac. 388, 14 L. R. A. 540; State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754. 1* Pratt V. Pierce, 36 Me. 448, 58 Am. Dec. 758; People v. Calder, 30 Mich. 85; People v. Schoonmaker, 117 Mich. 190, 72 Am. St. Rep. 560;- 1 Bishop, Mar., Div. & Sep. §§ 944-948. See note in 14 L. R. A. 540. The fact that an olHcial marriage license was issued 102 HUSBAND AND WIPE. § ol sumption in favor of the validity of a marriage cannot, of course, prevail where the marriage is clearly shown to be invalid.^ ^ § 51. Same — Presumption from cohabitation and repute. The rule that every presumption is in favor of mar- riage is most frequently applied to cases in which there is no proof of a formal marriage, but the parties alleged to be married have cohabited as husband and wife, and are generally reputed to be such. In such a case it will be presumed that they are married. The marriage may thus be established by circumstantial evidence, direct proof being unnecessary ;i^ and a marriage so estab- lished will prevail over a subsequent ceremonial mar- riage." In order to raise a presumption of marriage, the co- habitation relied on must, of course, have been a matri- carries with it a presumption that all statutory prerequisites there- to had been complied with. Nofire v. XJ. S., 164 U. S. 657. 1= Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411. 16 Arthur v. Broadnax, 3 Ala. 557, 37 Am. Dec. 707; White v. . White, 82 CfI. 427, 23 Pac. 276, 7 L. R. A. 799; Hiler v. People, 156 111. 511, 41 N. E. 181, 47 Am. St. Rep. 221; Chiles v. Drake, 2 Meto. (Ky.) 146, 74 Am. Dec. 406; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41; Holmes v. Holmes, 6 'La. 463, 26 Am. Dec. 482. 17 Sellman v. Bowen, 8 Gill & J. (Md.) 50, 29 Am. Dec. 524; Boone V. Purnell, 28 Md. 607, 92 Am. Dec. 713; Jones v. Jones, 48 Md. 391, 30 Am. Rep. 466; Jackson v. Jackson, 80 Md. 176; Badger v. Badger, 88 N. Y. 547, 42 Am. Rep. 263; Hynes v. McDermott, 91 N. Y. 451; Richard v. Brehm, 73 Pa. 140, 13 Am. Rep. 733; Estate of Pickens, 163 Pa. 14, 29 Atl. 875, 25 L. R. A. 477; Eldred v. Eldred, 97 Va! eo-e, 34 S. E. 477; Thompson v. Nims, 83 Wis. 261, 53 N. W. 502, 17 L. R. A. 847; Camden v. Belgrade, 75 Me. 126, 46 Am. Rep.. 364. But see Smith v. Smith, 1 Tex. 621, 46 Am. Dec. 121. § 52 PROOF OP MARRIAGE. 103 monial cohabitation of sucli a character as to create a reputation of marriage; an occasional and irregular association is not sufficient. A marriage cannot be pre- sumed from the mere fact of cohabitation.^^ So, also, the reputation of marriage must be general, consistent, and uniform.^ ^ Where the only evidence adduced to prove a marriage is that of cohabitation and reputation, it is perhaps competent to weaken or overthrow such evidence by showing that the reputation of marriage was not general, but divided;^" but where an actual ceremonial marriage is proved, evidence that the cohab- itation of the parties was reputed to be illicit is inad- missible.^^ § 52. Same — Cohabitation originally illicit. A marriage w HJ nM %prpRi7]TiPfl frpTpaj^nhabjtgt.ioTi shown' to be illicit^ in its .origin. In such case the illicit relation is presumed to continue, and a marriage subse- quent to its commencement must be proved.^^ But the isMcKenna v. McKenna, 180 111. 577; Jackson v. Jackson, 80 Md. 176; Com. v. Stump, 53 Pa. 132, 91 Am. Dec. 198; Appeal of Reading Fire Ins., etc., Co., 113 Pa. 204, 57 Am. Rep. 448; Williams V. Herrlck, 21 R. I. 401, 43 Atl. 1036, 79 Am. St. Rep. 809; Eldred V. Eldred, 97 Va. 606, 34 S. E. 477. 19 McKenna v. McKenna, 180 111. 577; Powers v. Charmbury's Ex'rs, 35 La. Ann. 630; Jackson v. Jackson, 82 Md. 17, 33 Atl. 317, 34 L. R. A. 773; Williams v. Herrlck, 21 R. I. 401, 43 Atl. 1036, 79 Am. St. Rep. 809. See, also, Boone v. Purnell, 28 Md. 607, 92 Am. Dec. 713; Badger v. Badger, 88 N. Y. 547, 42 Am. Rep. 2,63; Gall V. Gall, 114 N. Y. 109. 20 See Northrop v. Knowles, 52 Conn. 522, 52 Am. Rep. 613; Badger v. Badger, 88 N. Y. 547, 42 Am. Rep. 263. Evidence of general reputation is admissible in disproof of marriage. Boone v. Purnell, 28 Md. 607, 92 Am. Dec. 713. 21 Northrop v. Knowles, 52 Conn. 522, 52 Am. Rep. 613. 22 White V. White, 82 Cal. 427, 23 Pac. 276, 7 L. R. A. 799; Cart- 104 - , HUSBAND AND WIPE. § 52 presumption that the relation continued to be illicit, like other presumptions respecting marriage, is rebut- table, and it may be proved that the parties, after so co- habiting, became husband and wife.^^ The rule just stated does not apply where the cohab- itation, although in fact unlawful, was innocent. Thus, where parties are married in the honest and reasonable but mistaken belief that a prior marriage of one of them has been dissolved, they are, of course, not lawfully married, and their cohabitation is illicit;^* but if, in such case, they continue to cohabit after learning that such prior marriage has been dissolved by death or di- vorce, it will be presumed that they agreed to become husband and wife after learning that the disability had ibeen removed. And in states in which common-law marriages are valid, their subsequent cohabitation is lawful, and no formal re-marriage is necessary .^^ But Wright V. McGown, 121 111. 388, 2 Am. St. Rep. 105 ; Potter v. Clapp, 203 111. 592, 68 N. E. 81, 96 Am. St. Rep. 322; Cram v. Burnham, B Me. 213, 17 Am. Dec. 218; Badger v. Badger, 88 N. Y. 547, 42 Am. Rep. 263; Hunt's Appeal, 86 Pa. 294; Appeal of Reading Fire Ins., etc., Co., 113 Pa. 204, 57 Am. Rep. 448; Estate ot Grimm, 131 Pa. 199, 18 Atl. 1061, 17 Am. St. Rep. 796, 6 L. R. A. 717; Williams V. Williams, 46 Wis. 464, 32 Am. Rep. 722; Spencer v. Pollock. 83 Wis. 215, 53 N. W. 490, 17 L. R. A. 848. See note in 14 L. R. A. 364. 23 White V. White, 82 Cal. 427, 23 Pac. 276, 7 L. R. A. 799. 24 See ante, § 15. 25 Poole V. People, 24 Colo. 510, 52 Pac. 1025', 65 Am. St. Rep. 245; Cartwright v. McGown, 121 111. 388, 2 Am. St. Rep. 105; Teter V. Teter, 101 Ind. 129, 51 Am. Rep. 742; Blanchard v. Lambert, 43 Iowa, 228, 22. Am. Rep. 245; Renfrow v. Renfrow, 60 Kan. 277, 56. Pac. 534, 72 Am. St. Rep. 350; Taylor v. Swett, 3 La. 33, 22 Am. Dec. 156; Barker v. Valentine, 125 Mich. 336, 84 N. W. 297, 84 Am. St. Rep. 578, 51 L. R. A. 787; University of Michigan v. Me- § 52 HUSBAND AND WIFE. 10£ it is plain that neither the mere removal of the disabil- ity alone, nor the removal of the disability and the con- tinued cohabitation combined, can render the parties husband and wife without a consent to marriage after the removal of the disability. The only effect of the continued cohabitation is that it raises the presumption, in favor of innocence, that there was such a consent. But this is a prefsumption merely, and cannot prevail Guckin, 62 Neb. 489, 87 N. W. 180, 57 L. R. A. 917; Baton v. Eaton (Neb.) 92 N. W. 995, 60 L. R. A. 605; Fenton v. Reed, 4 Johns. (N. Y.) 52, 4 Am. Dec. 244; North v. North, 1 Barb. Ch. (N. Y.) 241, 43 Am. Dec. 778. See, also, Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311, 78 Am. St. Rep. 342/ 50 L. R. A. 180; Smith v. Smith, 1 Tex. 621, 46 Am. Dec. 121, In Gall' v. Gall, 114 N. Y. 109, 21 N. B. 106, the court said: "The cohabitation, apparently decent and orderly, of two persons opposite In sex, raises a presumption of more or less strength that they have been duly married. While such cohabitation does not constitute marriage, it tends to prove that a marriage contract has been entered into by the parties. Where, however, the cohabitation is illicit in its origin, the pre- sumption Is that it so continues until a change in Its character is shown by acts and circumstances strongly indicating that the con- nection has become matrimonial. It is sufficient if the acts and declarations of the parties, their reputation as married people, and the circumstances surrounding them in their daily lives, naturally lead to the conclusion that, although they began to live together as man and mistress, they finally agreed to live together as hus- band and wife. A present agreement between competent parties to take each other for husband and wife constitutes a valid mar- riage, even if not in the presence of witnesses. Such a marriage may be proved by showing actual cohabitation as husband and wife, acknowledgment, declarations, conduct, repute, reception among neighbors and relations, and the like. And where the in- tercourse was illicit at first, but was not then accompanied by any of the evidences of marriage, and subsequently it assumes a matrimonial character, and is surrounded by the evidences of a valid marriage above named, a question of fact arises for the determination of the jury * * * whether all of the circum- stances, taken together, are sufiicient evidence of marriage." 106 HUSBAND AND WIFE. § 52 against proof that there -n-as no such consent. The law never indulges in presumptions contrary to what the fact is shown to be. If, therefore, it appears that there was n» matrimonial consent after the removal of the disability, there is no valid marriage, notwithstanding continued cohabitation.-" It follows that if the parties, after their marriage, learn of the existence of the dis- ability and the consequent illegality of their relation, but nevertheless continue to live together, their contin- ued cohabitation, even after they learn that the disa- bility has been removed, raises no presumption of mar- riage. In such case the cohabitation, having become clearly meretricious, is presumed to continue so.^'^ And for a stronger reason would this be true where they have no knowledge of the removal of the disability. But such knowledge would seem to be unnecessary where neither party was aware of the existence of the disabil- ity. In such case the continuing matrimonial intent with which they cohabit, although ineffective so long as either party is under disability, becomes operative as soon as the disability ceases to exist, and this, it would seem, although the parties, being unaware of the ex- istence of the disability, knew nothing of its removal. It has been held, however, that wher e one of the par- jtjgs knew of the existence of the disability, but the other did not, there is no valid marriage, notwithstanding con- so vooriiees V. Voorhees, 46 N. J. Eq. 411, 19 Am. St. Rep. 404; Collins V. Voorhees, 47 N. J. Eq. 555, 24 Am. St. Rep. 412, 14 L. R. A. 364. 27 See Cram v. Burnham, 5 Me. 213, 17 Am. Dec. 21S; Eaton v. Eaton (Neb.) 92 N. W. 995, 60 L. R. A. 605. § S3 PROOF OP MARRIAGE. 107 tinued cohabitation after the prior marriage was dis- solved.^® Of coursQ, continued cohabitation after the dissolu- tion of the prior marriage, even with matrimonial in- tent, will not constitute a valid marriage in states in which common-law marriages are not valid.^" § 53. Same — Presumption of dissolution of prior marriage. The law will presume against bigamy, and hence, in favor of the validity of a second marriage, it will ordi- narily be presumed, after a reasonable time, that the prior marriage was dissolved by death^" or divorce.^^ 28 Collins V. Voorhees, 47 N. J. Eq. 555, 24 Am. St. Rep. 412, 14 L. R. A. 364. In this case, a man who had obtained a divorce from his wife, which he knew to be void, married another woman, who knew nothing of the Impediment to the second marriage. The parties lived together as husband and wife until the man's death, the woman never suspecting that the marriage was invalid. After the second marriage, the first wife obtained a divorce, but it was held that the continued cohabitation of the parties to the second marriage thereafter did not render their marriage valid. See, also, O'Gara v. Eisenlohr, 38 N. Y. 296; Hunt's Appeal, 86 Pa. 294. It is submitted that this decision is not sound. Much stress was . laid in the opinion upon the fact that the man, in contracting a marriage which he knew was unlawful, had no matrimonial in- tent, and therefore no such intent could be presumed from his continuance of the cohabitation after the divorce. So far the ar- gument is sound; but it has already been established that if either party believes the marriage to be valid, the parties being compe- tent, itv is valid, notwithstanding the other party did not intend marriage. This doctrine would seem to apply here. See ante, § 35. And see Barker v. Valentine, 125 Mich. 336, 84 N. W. 297, 51 L. R. A. 787. 29 Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411. soHalbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; People V. Feilen, 58 Cal. 218, 41 Am. Rep. 258; Hunter v. Hunter, 111 Cal. 261, 43 Pac. 756, 52 Am. St. Rep. 180, 31 L.. R. A. 411; Johnson v. 108 HUSBAND AND WIFE. § S3 In this case there is a conflict of presumptions. The presumption of life, or of the continuance of a marriage shown once to exist, is overcome by the weightier pre- sumption, in favor of innocence and legitimacy, that the second marriage is valid. This presumption, how- ever, is not conclusive, and will not prevail where there is no room for it, or where it is overcome by evidence Johnson, 114 111. 611, 3 N. E. 232, 55 Am. Rep. 883; Kelly v. Drew, 12 Allen (Mass.) 107, 90 Am. Dec. 138. See, also, Sneathen v. Sneathen, 104 Mo. 20, 24 Am. St. Rep. 326. Where, after hav- ing been abandoned by her husband for four and one-half years, during which time he had not been heard from, a woman mar- ried again, it was held that it would be presumed, in favor of the validity of the second marriage, that the first husband was dead. Hunter v. Hunter, 111 Cal. 261, 43 Pac. 756, 52 Am. St. Rep. 180, 31 L. R. A. 411. In this case the court said: "There was no proof tending to show that Milam [the first husband] was dead or that his chance of life was below the average; therefore it is contended the court should have found that he was alive. This presumption of the continuance of life is, how- ever, overcome by another. It is presumed that a person is in- nocent of crime or wrong. There is also a presumption, and a very strong one, in favor of the legality of a marriage regu- larly solemnized. Rather than hold a second marriage invalid, and that the parties have committed a crime or been guilty of immorality, the courts have often Indulged in the presumption of ieath in less than seven years, or, when the absent party was shown to be alive, have allowed a presumption that the abssiil party has procured a divorce. A more correct statement, perhaps, would be that the burden is cast upon the party asserting guilt or immorality to prove the negative,^ — that the first marriage had not ended before the second marriage." 31 Pittinger v. Pittinger, 28 Colo. 308, 64 Pac. 195, 89 Am. St. Rep. 193; Boulden v. Mclntire, 119 Ind. 574, 21 N. E. 445, 12 Am. St. Rep. 453; Blanchard v. La-nbert, 43 Iowa, 228, 22 Am. Rep. 245; Alabama, etc., R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; Hadley v. Rash, 21 Mont. 170, 53 Pac. 312, 69 Am. St. Rep. 649. § 54 PROOF OP MARRIAGE. 109 to the contrary.^^ It seems that the presumption should be indulged with caution, each case being determined upon its own facts and circumstances.^* § 54. Same — Strength of presumptions. The presumption of marriage arising from cohabita- tion apparently matrimonial, or of the legality of a mar- riage when shown, is one of the strongest presumptions known to the law, and its strength increases with the lapse of time. When once raised, this presumption can be overcome only by evidence of the most clear and sat- isfactory character.^* But cohabitation and reputation do not constitute marriage. They are only evidence tending to raise a presumption of marriage,^^ and this 32 Cartwright v. McGo-sifn, 121 111. 388, 12 N. E. 737, 2 Am. St. Rep. 105; McCarty v. McCarty, 2 Strob. (S. C.) 6, 47 Am. Dec. 585; Williams v. Williams, 63 Wis. 58, 23 N. W. 110, 53 Am. Rep. 253. See, also, Parker v. State, 77 Ala. 47, 54 Am. Rep. 43; Com. V. Thompson, 6 Allen (Mass.) 591, 83 Am. Dec. 653; Id., 11 Allen (Mass.) 23, 87 Am. Dee. 685. 33 See monographic note in 89 Am. St. Rep. pp. 198-206, in which the subject is- fully discussed. Also note in 14 L. R. A. 542, 543. siPittinger v. Pittinger, 28 Colo. 308, 64 Pac. 195, 89 Am. St. Rep. 193; Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742; Hadley V. Rash, 21 Mont. 170, 53 Pac. 312, 69 Am. St. Rep. 649; Hynes V. McDermott, 91 N. Y. 451, 43 Am. Rep. 677; Estate of Pickens, 163 Pa. 14, 29 Atl. 875, 25 L. R. A. 477; Eldred v. Eldred, 97 Va. 606, 34 S. E. 477. The presumption of marriage is especially strong in cases involving the legitimacy of children. Hynes v. McDermott, 91 N. Y. 451, 43 Am. Rep. 677; Johnson v. Johnson's Adm'rs, 30 Mo. 72, 77 Am. Dec. 598. 35 Eldred v. Eldred, 97 Va. 606, 34 S. E. 477. "Courts cannot marry parties by mere presumption. In the absence of consent, the status of marriage is never created by any government. The law compels no one to assume the matrimonial status. Without assent, no statute or constitution can create this relation." Per Shope, J., in Cartwright v. McGown, 121 III. 388, 12 N. B. 737, 2 Am. St. Rep. 105. 110 HUSBAND AND WIFE. § 55 presumption, while ordinarily sufficient to establish a marriage, in the absence of countervailing evidence, may, of course, be overcome by counter evidence or counter presumptions, and, when the presumption is so over- come, the marriage must be established by more direct proof, or it will fail.^* § 55. Proof of foreign marriages. The general rules above stated as to the proof or pre- sumption of marriage apply to marriages celebrated in other states or foreign countries, as well as to those celebrated within the state.^^ Thus, where a formal 36 Jenkins v. Jenkins, 83 Ga. 283, 20 Am. St. Rep. 316; Hilar v. People, 156 111. 511, 41 N. E. 181, 47 Am. St. Rep. 221; Boone v. Purnell, 28 Md. 607, 92 Am. Dec. 713; Jones v. Jones, 48 Md. 391, 30 Am. Rep. 466; Stevenson's Heirs v. McReary, 12 Smedes & M. (Miss.) 9, 51 Am. Dee. 102; Appeal of Reading Fire Ins., etc., Co., 113 Pa. 204, 57 Am. Rep. 448; Allen v. Hall, 2 Nott & McC. (S. C.) 114, 10 Am. Dec. 578; Eldred v. Bldred, 97 Va. 606, 34 S. B. 477. The declarations of either of the parties are admissible to dio- prove the marriage. Allen v. Hall, 2 Nott & McC. (S. C.) 114, 10 Am. Dec. 578. But see Thompson v. Nims, 83 Wis. 261, 53 N. W. 502, 17 L. R. A. 847. The presumption of an actual marriage from the fact of cohabitation is rebutted by proof of a subsequent permanent separation without apparent cause, and the marriage in solemn form of one of the parties shortly after the separation. Weatherford v. Weatherford, 20 Ala. 548, 56 Am. Dec. 206. But proof of a subsequent ceremonial marriage will not alone be suffi- cient to overcome the presumption of marriage arising from co- habitation and reputation, nor justify the exclusion of circumstan- tial evidence of the prior marriage. Camden v. Belgrade, 75 Me. 126, 46 Am. Rep. 364. The fact that parties cohabiting as husband and wife procure the performance of a marriage ceremony between them is some evidence that they had not been previously mar- ried, but is not conclusive. Kromer v. Friday, 10 Wash. 621, 39 Pac. 229, 32 L. R. A. 671. 37 See Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; Jackson V. Jackson, 80 Md. 176, 82 Md. 17, 34 L. R. A. 773; Smith v. Smith, § 56 PROOF OF MARRIAGE. ' m marriage abroad or in anotlier state is proved, it will be presumed to be valid according to the law of the pkice where celebrated, and it is not necessary to prove the foreign law of marriage.^^ So, also, where no formal marriage is shown, marriage abroad may be presumed from cohabitation and repute.^* § 56. Proof in criminal cases. In criminal cases, — that is to say, where the result of proving the marriage would be to prove the defendant guilty of a criminal offense, as adultery, bigamy, and the like, — a stricter rule of proof is adopted than in civil cases. In a criminal case there must be direct proof,. jyt^ an actual marriage in fact ; the presumption of mar- riage arising from matrimonial cohabitation is not suffi- cient. No particular mode of proof, however, is re- quired. The marriage may be proved by documentary. evidenc e, the testimony of witness es, the c onfessions or admissions of the defendant, etc., as in other cases.*" 1 Tex. 621, 46 Am. Deo. 121. The foreign law of marriage, like any other foreign law, will not be judicially taken notice of, but must be proved as a fact. It may generally be proved by the testimony of persons familiar with it. Tayhir v Swett, 3 La. 33, 22 Am. Dec. 156; Phillips v. Gregg, 10 Watts (Pa.) 158, 36 Am. Dec. 158. In the absence of evidence of the statutory law of an- other state relating to marriage, the courts of one state will pre- sume that the common law of another state is the same as that of their own state. Com. v. Graham, 157 Mass. 73, 31 N. E. 706, 34 Am. St. Rep. 255, 16 L. R. A. 578. 38 Com. V. Kenney, 120 Mass. 387; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; State v. Kean, 10 N. H. 347, 34 Am. Dec. 162; Bird v. Com., 21 Grat. (Va.) 800; Lanotot v. State, 98 Wis. 136, 73 N. W. 575, 67 Am. St. Rep. 800. 39Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538; Id., 91 N. Y. 451, 43 Am. Rep. 677. *o Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; Parker v. ilZ HUSBAND AND WIFK. § 57 § 57. Burden of proof. The burden of proving a marriage rests, of course, in tlie first instance, upon the part y allegiji g„it, as in the case of proof of any other fact.*^ But where a prima facie case of marriage is made out, since the presumption is in favor of marriage, a person asserting the invalid- ity of the marriage has the burden of proving its in- validity, even though this maj' require proof of a nega- tive.*^ Thus, restrictions and conditions imposed upon marriage, being exceptional, must be proved; and one who Asserts that a marriage contracted in another state, state, 77 Ala. 47, 54 Am. Rep. 43; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; State v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L. R. A. 125; Green v. State, 21 Fla. 403, 58 Am. Rep. 670; Hiler V. People, 156 111. 511, 41 N. B. 181, 47 Am. St. Rep. 221; State v. Hughes, 35 Kan. 626, 57 Am. Rep. 195; Com. v. Jackson, 11 Bush (Ky.) 679, 21 Am. Rep. 225; State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742; Bird v. Com., 21 Grat. (Va.) 800; 1 Am. & Eng. Enc. Law (2d Ed.) 756; 4 Am. & Eng. Enc. Law (2d Ed.) 42; notes in 36 Am. Dec. 745, 47 Am. St. Rep. 228. The rule of the text applies also to an action for criminal conversation which is in the nature of a criminal prosecution. Morris v. Miller, 4 Burrows, 2057; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Forney v. Hallacher, 8 Serg. & R. (Pa.) 159, 11 Am. Dec. 590; 8 Am. & Eng. Enc. Law (2d Ed.) 268. 41 Brown v. Beckett, 6 D. C. 253; Clark v. Cassldy, 62 Ga. 407. In an actic«i for alimony, the burden is upon the plaintiff to estab- lish the fact of marriage, unless admitted. See Brinkley v. Brink- ley, 50 N. Y. 184, 10 Am. Rep. 460; Collins v. Collins, 80 N. Y. 1; 2 Am. & Eng. Enc. Law (2d Ed.) 103. Where the fact of mar- riage is admitted in the pleadings, it need not be proved. Arthur V. Broadnax, 3 Ala. 557, 37 Am. Dec. 707. *2 Hunter v. Hunter, 111 Cal. 261, 43 Pac. 756, 52 Am. St. Rep. 180; Boulden v. Mclntire, 119 Ind. 574, 21 N. E. 445, 12 Am. St. Rep. 453; Alabama, etc., R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; Hadley v. Rash, 21 Mont. 170, 53 Pac. 312, 69 Am. St. Rep. 649; Estate of Megginson, 21 Or. 387, 28 Pac. 388, 14 L. R. A. 540. § 57 PROOF OF MARRIAGE. I13 \vUich would be good at common law, is void because of some statutory prohibition or restriction in force in that state, has the burden of proving this fact.*^ So, also, the party charging that a marriage is void because of a prior subsisting marriage must prove the existence and validity of such prior marriage;** and where the prior marriage is established, he must prove that it has not been dissolved by death or divorce, although this may require him to prove a negative.*^ 43 Laurence v. Laurence, 164 III. 367, 45 N. E. 1071; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; State v. Shattuok, 69 Vt. 403, 38 Atl. 81, 60 Am. St. Rep. 936, 40 L. R. A. 428; Lanctot v. State, 98 Wis. 136, 73 N. W. 575, 67 Am. St. Rep. 800. « Patterson v. Gaines, 6 How. (U. S.) 550; Hunter v. Hunter, 111 Cal. 261, 43 Pac. 756, 52 Am. St. Rep. 180. See, also, Pittinger V. Pittinger, 28 Colo. 308, 64 Pac. 195, and note in 14 L. R. A. 543. *5 Potter V. Clapp, 203 111. 592, 68 N. B. 81, 96 Am. St. Rep. 322; Boulden v. Mclntire, 119 Ind. 574, 21 N. E. 445, 12 Am. St. Rep. 453; Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311, 78 Am. St. Rep. 342, 50 L. R. A. 180; Hadley v. Rash, 21 Mont. 170, 53 Pac. 312, 69 Am. St. Rep. 649. Long, D. R.— 8. CHAPTER V'. THE3 LEGAL CONSEQUENCES OF MARRIAGE. § 58. In General. I. The Peesonal Relations op Husband and Wife. § 59. Mutual' Duties of Husband and Wife — Husband Head of Family. 60. Same — Duty of Wife to Obey Husband. 61. Right of Husband to Chastise or Restrain Wife. 62. Matrimonial Cohabitation — In General. 63. Same — Right of Husband to Fix Domicile. 64. The Duty of Support — Burial. 65. Right of Husband to Wife's Services. II. TiiB PnopEETY Rights of Husband and Wife. § 66. In General. 67. Husband's Interest in Wife's Property — Personalty. 68. Same— The Wife's Earnings. 69. Same — Chattels Real. 70. Same — Real Property. 71. Wife's Interest in Husband's Property. 72. Conveyances in Fraud of Marital Rights. 73. Wife's Pin Money — Paraphernalia — Equity to Settle- ment. 74. Wife's Equitable Separate Estate. 75. Wife's Statutory Separate Estate. 76. Co-ownership of Property. 77. Marriage Settlements — Antenuptial Contracts. 78. Postnuptial Settlements. 79. Rights of Surviving Husband or Wife. 80. Conflict of Laws as to Property Rights. III. The' Disabilities op Coveetuee. §, 81. Disabilities of the Husband. 82. Disabilities of the Wife— In General. CONSEQUENCES OF MARRIAGE. US 83. Same — Disability to Contract. 84. Capacity of Wife to Acquire or Hold Property. 85. Conveyances by or to Wife. 86. Wills of Married Women. 87. Capacity of Wife to Act as Agent or Fiduciary. 88. Suits by or against Married Women. 89. Estoppel of Married Women. 90. When Wife may Act as Feme Sole. 91. Wife as Sole Trader — Partnership. 92. Conflict of Laws as to Wife's Disabilities. 93. Mutual Disqualification as Witnesses. IV. Transactions Between Husband and Wife. § 94. Antenuptial Contracts — Effect of Marriage. 95. Postnuptial Contracts and Transfers of Property— At Common Law. 96. Same — Doctrine in Equity. 97. Same — Under Statutes. 98. Relation of" Debtor and Creditor Between Husband and Wife. 99. Wife as Agent of Husband. 100. Husband as Agent of Wife. 101. Suits Between Husband and Wife. ■ 102. Wills in Each Other's Favor. 103. Liability to Each Other in Tort. V. Rights of Husband and Wife Against Tiiied Persons. § 104. On Contract. 105. In Tort — Wrongs Against Right of Cohabitation— In General. • 106. Same — Abduction or Enticement of Spouse. 107. Same — Alienation of Affections. 108. Same — Criminal Conversation. 109. Injuries to Wife's Person or Reputation. 110. Injuries to Wife's Property. VI. Liability of Husband and Wife to Third Persons. § 111. On the Husband's Contracts. 112. On the Wife's Antenuptial Contracts. 113. On the Wife's Postnuptial Contracts — In General. 114. Same — Contracts Made by Wife as Husband's Agent 116' HUSBAND AND WIFE. § 53 115. Same— Wife's Contracts for Necessaries — In Gen- eral. 116. Same — What are Necessaries. 117. Same — Credit not Given to Husband. 118. Same— Wife Living Apart from Husband — In Gen- eral. 119. Same — Separation Through Fault of Husband. 120. Same — Separation Through Fault of Wife. 121. Same — Separation by Mutual Consent. 122. Same— Effect of Wife's Adultery While Living Apart. 123. Same — Necessity and Effect of Notice not to Credit Wife. 124. Same — Effect of Divorce Proceedings or Decree. 125. Liability of Supposed Husband for Supplies Fur- nished to Woman Passing as Wife. 126. Liability for Wife's Torts. VII. Ceimijstal Liability of Husband and Wife. § 127. In General. 128. Crimes Against Each Other. § 58. In general. At common law, the husband and wife become, by mar- riage, one person ; that is, the legal existence of the wife is suspended during the marriage, or merged into that of the husband, under whose wing or cover she is, whence she is called a "feme covert," and her condition during marriage is called "coverture." The common law regards the husband as superior to the wife, and she is presumed, in general, to have no independent will, but to act under the coercion of her husband. Upon this principle of the legal union of person of husband and wife and the superiority of the husband depend almost all of the legal rights, duties, disabilities, and liabilities of either party growing out of the marriage.^ 1 1 Bl. Comm. 442. § 58 CONSEQUENCES OF MARRIAGE. X17 It will be noted that there are here two conflicting notions, — one that the existence of the wife is suspended or merged into that of her husband ; the other, that she still has a separate existence, but is under his domina- tion or control. Some of the wife's disabilities depend upon one notion and some upon the other, and some, perhaps, upon either or both.^ The doctrine of the legal identity of husband and wife is, of course, a pure fiction of the law, and we shall find that it has never been fully recognized by courts of equity,^ and is, for some pur- poses, disregarded even at common law. The doctrine that the wife is under the control of her husband is usually more or less in accordance with the fact, but even this is a. mere presumption, which may sometimes be rebutted. Our discussion of the legal consequences of marriage will involve the consideration of the effect of the mar- riage as betAveen the parties themselves, and also as be- tween either or both of them and third persons, as well as the disabilities, particularly of the" wife, growing out of coverture. It will be found that the law relating to this subject has been greatly changed by statute, many of the most striking rules of the common law having been wholly abrogated. These changes, however, relate almost entirely to property rights and liabilities, and the capacity of the wife to contract with her husband 2 See Schouler, Dom. Rel. § 34. 3 Though there are exceptional cases in which courts of equity depart from the common-law rules in regard to married women, these rules apply, in general, in courts of equity, as well as in courts of law. Schilling v. Darmody, 102 Tenn. 439, 52 S. W. 291, 73 Am. St. Rep. 892. 118 HUSBAND AND WIFE. § 58 or with third persons. The personal duties and rela- tions of the parties remain substantially unchanged.* The extent of this "emancipation" of married women will depend, of course, upon the terms of the particular statute. In general, under the statutes, as in equity, the legal fiction of the unity of husband and wife is not recognized, and most or all of the disabilities depending upon that fiction have been removed. This change has been accomplished by degrees, one after another of the common-law disabilities being removed, until a married woman has in most states substantially the same stand- ing before the law as a feme sole.^ We shall consider the legal consequences of marriage under several different heads, namely : (1) The personal relations of husband and wife. (2) The property rights of husband and wife. (3) The disabilities of coverture. (4) Transactions between husband and wife. (5) Rights of husband and wife against third per- sons. (6) Liabilities of husband and wife to third persons. ^(7) Criminal liability of husband and wife. * A statute which deals only with the property o£ the wife, and with contracts relating thereto, is not to be construed as intended to disturb the personal relations of husband and wife. Snashall v. Metropolitan R. Co., 8 Mackey (D. C.) 399, 10 L. R: A. 746. 6 The character and extent of these changes will be noted in the succeeding sections of this chapter. It will be found that the legal fiction of marital unity is, In some states, not entirely abrogated. See Heacock v. Heacock, 108 Iowa, 540, 79 N. W. 353, 75 Am. St. Rep. 273. § 59 CONSEQUENCES OP MARRIAGE. 119 I. The Personal Relations of Husband and Wife. § 59. Mutual duties of husband and wife — Husband head of family. The duties of husband and wife to love, honor, and cherish each other, and, taking each other for better or worse, to practice mutual kindness and forbearance, are well understood, but do not fall particularly within the cognizance of the law, since, in the nature of things, the law can enforce such duties only in a very imperfect manner. At common law the husband is the head of the fam- ily, and has a right to regulate and control his house- hold. In case of differences between husband and wife as to the management of the household, it is essential to family peace that one or the other of the parties should have the right to control, and the common law gives this right to the husband.^ The fact that the dwelling house used as the family residence is the property of the wife does not change the rule.'^ Nor do the statutes enlarging the rights and pi"ivileges of married women, and giving to the wife the right to carry on any trade or business on her sole and separate account, deprive the husband of his common- law right to regulate and control his own household.^ Since matrimonial duties are imposed by law, a prom- 6 Com. V. Wood, 97 Mass. 225; Com. v. Carroll, 124 Mass. 30. A husband may refuse, in a prober case, to allow persons to visit his wife, even though such refusal be against her wishes. Rex v. Mid- dleton (1819) 1 Chit. 654, 18 E. C. L. 192. 7 Com. V. Wood, 97 Mass. 225; Com. v. Carroll, 124 Mass. 30. 8 Com. v. Wood, 97 Mass. 225; Com. v. Barry, 115 Mass. 146; Com. V. Carroll, 124 Mass. 30. See, also. Glover v. Alcott, 11 Mich. 470, 485. 120 HUSBAND AND WIFE. § 09 ise by either partj^ pay the other for performing these duties is without consideration, and therefore not en- forceable, for an agreement to do what one is already required by law to do is no consideration for a prom- ise." Moreover, contracts between husband and wife by which they mutually agree to perform their marital obligations are void because contrary to public policy. Not only would it be a delicate and difficult matter to determine whether there had been a breach of such a contract, and practically impossible to enforce a per- formance, but it would be highly improper and mis- chievous in most cases publicly to examine into every cause of domestic discord. A judicial inquiry into mat- ters of this character would ordinarily do no good, but would rather work irreparable mischief. Such con- tracts, therefore, are forbidden by the soundest consid- erations of public policy.^" § 60. Same — Duty of wife to obey husband. It is the duty of the wife, at common law, to obey her husband,^^ and, since this is a duty imposed by the law, she cannot escape from it by declining to promise obedi- ence at the altar. The omission of the word "obey" can- not help her, for the law supplies it, and an express stip- 9 See post, § 65. 10 Miller v. Miller, 78 Iowa, 177, 35 N. W. 409, 16 Am. St. Rep. 431. An agreement between husband and wife that the husband shall work for the wife, and in payment for such services the wife shall work for the husband, each being engaged in the usual and ordinary affairs of life, and that the product of such joint effort shall be the sole property of the wife, is without consideration, contrary to pub- lic policy, and void. Dempster Mill Mfg. Co. v. Bundy, 64 Kan. 444, 67 Pac. 816, 56 L. R. A. 739. See, also, post, § 65. 11 1 Bishop, Mar. Women, §§ 45, 49. § 60 CONSEQUENCES OF MARRIAGE. 121 ulation that she need not obey is also unavailing, for such stipulation is void.*^ The doctrine that the wife must obey her husband is well settled, and is clearly established by the authori- ties, though there is very little judicial authority on the subject.^^ The duty of obedience, as a legal duty, appears to be of small practical advantage to the hus- band,^* and any attempt by him to enforce it would re- ceive little encouragement from the courts, and might result in the wife's obtaining a divorce on the ground of cruelty.^ ^ The true doctrine as to obedience in a prop- erly constituted marriage seems to be that quaintly set forth by an ancient writer, to the effect that "God has given the man greater wit, better strength, better cour- age, to compel the woman to obey by reason or force ;^® and to the woman beauty, fair countenance, and sweet words, to make the man obey her again for love. Thus 12 See ante, § 10. 13 2 Kent, Comm. 129; 1 Bishop, Mar. Women, §§ 45-49; Schouler, Dom. Rel. § 34. In Oliver v. Oliver, 1 Hagg. Consist. 361, 4 Eng. Ecc. 429, Sir William Scott (Lord Stowell) said: "It is the law of re- ligion, and the law of this country, that the husband is intrusted with authority over his wife. He is to practice tenderness and af- fection, and obedience is her duty." 14 The position of the husband as the head of the family, and his legal right to the obedience of his wife, may be a serious disad- vantage to him, as where, by reason thereof, he is held criminally liable for her conducting an Illegal business in the family residence. See Com. v. Wood, 97 Mass. 229; Com. v. Hill, 145 Mass. 305, 14 N. E. 124. 15 See Kelly v. Kelly, L. R. 2 Prob. & Div. 31; and see, also, post, i 136. 16 But is not the wife constrained to obey as much by love as by reason or force? 123 HUSBAND AND WIPE. § 61 each obeyeth and commaodeth the other; and they two together rule the house so long as they remain in one."^^ § 61. Right of husband to chastise or restrain wife. Closely connected with the right of control is the right of punishment and restraint, without which the right of control could not be enforced. By the old common law, a husband had the right to chastise his wife moder- ately, though not in a violent or cruel manner.^* For this "wholesome exercise" he might use a stick not big- ger than a -man's thumb. But for a long time, both in England and in America, this right has been denied to the husband, and an attempt to exercise it would render him liable for assault and battery, and entitle the wife to have him bound over to keep the peace, or to a di- vorce on the ground of cruelty.^' The husband was also allowed by the common law to exercise over the wife a "gentle restraint" in a proper case,^" but it is doubtful whether this right now exists 17 Sir Thomas Smith, In Commonwealth of England, bk. 1, c. 2, quoted in Schouler, Dom. Rel. § 34, from Bing. Inf. & Gov. p. 184. 18 1 Bl. Comm. 444; Bacon, Abr. "Baron and Feme" (B). See, also, Adams v. Adams, 100 Mass. 365, 1 Am. Rep. 111. 19 Com. V. McAfee, 108 Mass. 458, 11 Am. Rep. 388; State v. Oliver, 70 N. C. 61; 2 Am. & Eng. Enc. Law (2d Ed.) 963. See, also, Poor V. Poor, 8 N. H. 307, 29 Am. Dec. 664; Perry v. Perry, 2 Paige (N. Y.) 501. 20 2 Kent, Comm. 181. In the old cise of Rex v. Lister (1721) 1 Strange, 478, it was declared to be the law that, where the wife will make an undue use of her liberty, either by squandering her husband's estate, or by going into lewd company, it is lawful for the husband, in order to preserve his estate or honor, to lay the wife under a restraint. In this case (also reported in 8 Mod. 22) it was held that the husband who had consented to his wife's living apart from him could not, by force, take her back and keep her in § bl CONSEQUENCES OF MARRIAGE. 123 except so far as may be necessary to prevent the wife from committing acts for which the husband may be held civilly or criminally liable. Inasmuch as the hus- band is liable at common law for his wife's torts, wheth- er by word or dee^i, and also for her crimes in certain cases, it seems not unreasonable that he should have the right to control her actions either by confinement or punishment when necessary to protect himself from lia- bility for her acts; but this right, so far as it exists, is probably much restricted, and will not be recognized further than may be necessary in each case.^^ As might be expected, there is very little judicial authority on the subject of the right of the husband to punish, restrain, or control the wife. For obvious rea- sons, family difficulties and dissensions, unless of a serious character, are rarely brought to the attention of the courts. Moreover, the courts are not disposed to take cognizance of domestic broils of a trivial nature; not, indeed, because the domestic relations are not sub- ject to the law, but because the evil of publicity would be greater, in most cases, than that complained of, and because, also, matters of this nature are best left to fam- ily government. Only in serious cases will the law in- terfere.^^ The question as to the husband's legal powers over the wife usually arises in one or another of four classes restraint, and that, upon his having done so, she procured her release by habeas corpus. See, also, the late case, Reg. v. Jackson, [1891] 1 Q. B. 671, Woodruff Cas. 173. 21 Schouler, Dom. Rel. §§ 44, 45; 15 Am. & Eng. Bnc. Law (2d Ed.) 813. 22 See State v. Black, 1 Winst. (N. C.) 266, 86 Am. Dec. 436; State V. Rhodes, Phil. Law (N. C.) 453, 98 Am. Dec. 78. 124 HUSBAND AND WIFE. § 61 of cases: (1) Where he is prosecuted criminally for the abuse of his wife;-^ (2) where the wife sues for di- vorce on the ground, of cruelty;-* (3) where the hus- band is prosecuted for a crime committed by the wife, for which the law holds him responsible ;2^ and (4) where he is sued for a tort committed by the wife.^" Each case will be considered in its proper connection. In general it may be said that at present the husband's power of control and restraint is extremely limited, and extends no further than the necessities of the case require. 23 A husband may be convicted of assault and battery for beating his wife. Gaugler v. State (Tex. Cr. App.) 22 S. W. 147; 2 Am. & Eng. Enc. Law (2d Ed.) 964. See, also, People v. Winters, 2 Park. Cr. R. (N. Y.) 10, Woodruff Cas. 173. It was formerly held other- wise in North Carolina unless some permanent injury was inflicted, or there was an excess of violence. State v. Black, 1 Winst. (N. C.) 266, 86 Am. Dec. 436; State v. Rhodes, Phil. Law (N. C.) 453, 98 Am. Dec. 78. But this doctrine has been repudiated. State v. Oliver, 70 N. C. 61. A man has no right to heat or strike his wife, even If she is drunk or insolent, and if he does so, and she dies as a result, he is guilty of manslaughter. Com. v. McAfee, 108 Mass. 458, 10 Am. Rep. 383. -i This class of cases is very numerous, and will be considered in connection with the subject of divorce. The mere refusal of the husband to permit the wife to attend a particular church, of which she is a member, does not justify a separation. Lawrence v. Lawrence, 3 Paige (N. Y.) 267. 25 Thus, the husband is criminally liable for his wife's conduct in using the family residence as a place of prostitution or for the illegal sale of liquors, in such case the husband has the legal right, and it is his duty, to prevent his wife from using the home for such purposes. Com. v. Wood, 97 Mass. 225; Com. v. Hill, 145 Mass. 305, 14 N. E. 124. In the case first cited the court said: "How far he may exercise force in restraining her is not precisely settled; but there can be no doubt that he may exercise as much power as may be reasonably necessary to prevent her, as well as other inmates of the house, from making it a brothel." 2« For an extensive note on this subject, see 86 Am. Dec. 437, § 62 CONSEQUENCES OP MARRIAGE. 125 Either spouse may, of course, use force against the other in self-defense.^^ § 62. Matrimonial cohabitation — In general. Matrimonial cohabitation is the living together of a man and a Avoman ostensibly as husband and wife.^^ It is the duty of husband and wife to live together, cohabi- tation being an essential element of the notion of mar- riage, and necessary to the full performance of the du- ties and the enjoyment of the privileges of the marital relation. Each consort has a right to the society of the other, and in England, when the right of cohabita- tion is denied by either party to the marriage, the other party may compel the performance of this duty by a suit for the restitution of conjugal rights.^^ No such 27Schouler, Dom.Rel. § 44; People v. Winters, 2 Park. Cr. R. (N. Y.) 10, Woodruff Cas. 173. See Waring v. Waring, 2 Phil. 132, 1 Eng. Ecc. 210. 2"* 1 Bishop, Mar., Div. & Sep. § 1669, quoted, together with other definitions, in Cox v. State, 117 Ala. 103, 23 So. 806, 67 Am. St. Rep. 166. See, also, Kilburn v. Kilburn, 89 Cal. 46, 26 Pac. 636, 27 Am. St. Rep. 447. A husband is living with his wife, in legal contem- plation, even when away from home for a protracted period for business or other reasons, and ceases to live with her only when, with intention never to return, he deserts or abandons her. Walton V. Walton, 76 Miss. 662, 25 So. 166, 71 Am. St. Rep. 540. 29 3 Bl. Comm. 94. See Harding v. Harding, L. R. 11 Prob. Div. Ill; Tress v. Tress, L. R. 12 Prob. Div. 128; Field v. Field, L. R. 14 Prob. Div. 26. Formerly, a decree for the restitution of conjugal rights might have been enforced by an attachment of the person for contempt, but this mode of enforcement has been taken away by statute. Reg. v. Jackson [1891] 1 Q. B. 671, Woodruff Cas. 173. In this case it was held that the husband could not, by force and con- finement, compel the wife to return to and live with him. The only duty that can be enforced in this suit is that of living together. Where the parties are already cohabiting, the allowance of marital 126 HUSBAND AND WIFE. § 62 remedy exists in this country, and the only relief avail- able to the aggrieved party is a divorce on the ground of desertion.^" Either party, however, may recover dam- ages from a third person who wrongfully deprives him or her of the society of the other .^^ Since matrimonial cohabitation is a duty as well as a right, it seems clear, on principle, that neither party to the marriage is entitled to compensation from the other party for the performance of this duty. Thus it has been held that a promissory note given by a husband to a trustee for the wife, who was living apart from him, to induce her to return, cannot be enforced. Such a note is without consideration, being given to induce the wife to do what she was already legally bound to do; and the agreement is also contrary to public policy, be- cause promotive of separation between husband and wife.^^ But the right of cohabitation may be forfeited intercourse cannot be compelled. Orme v. Orme, 2 Add. 382, 2 Eng. Eec. 354. An agreement for a separation is a bar to the suit. Clark V. Clark, L. R. 10 Prob. Div. 188. 30 No court in this country has power to compel discordant hus- bands and wives to live together. Baugh v. Baugh, 37 Mich. 59. See, also, Cruger v. Douglas, 4 Edw. Ch. (N. Y.) 433; Westlake v. Westlake, 34 Ohio, 621, 32 Am. Rep. 397. 31 See post, § 106. 32Copeland v. Boaz, 9 Baxt. (Tenn.) 223, 40 Am. Rep. 89. See, also. Miller v. Miller, 78 Iowa, 177, 35 N. W. 409, 16 Am. St. Rep. 431. In Merrill v. Peaselee, 146 Mass. 460, 16 N. E.,271, 4 Am. St. Rep. 334, it was held, by a divided court, that the consideration of such a note was illegal, even though the wife had left her husband for good cause, entitling her to a divorce, and had consulted counsel with a view to obtaining a divorce. The majority opinion was to the effect that matrimonial cohabitation cannot be made an article of trade, and is without the range of pecuniary considerations. The court declined to express an opinion as to the legality of an agree- ment not to prosecute divorce proceedings. § 63 CONSEQUENCES OP MARRIAGE. 127 by misconduct justifying a separation or divorce. In such case, cohabitation is no longer a duty; and it has been held that a note given by a husband to his wife in consideration of her dismissing divorce proceedings against him, and returning to live with him, is valid, and may be enforced.^^ So, also, a promise to convey property upon such consideration is valid, and will be specifically enforced in equity.^* § 63. Same — Right of husband to fix domicile. Since husband and wife are in law regarded as one person, they can have but one legal domicile so long as the relation upon which their legal identity depends re- mains unimpaired.^' In case of difference betAveen them as to the place of their domicile, the wishes of one of them must, of course, control ; and it is well settled that the husband, as the head of the family, has the right to fix the matrimonial domicile without reference to the consent of the wife.^® He has also the right to change his domicile as often as, and to any place where, his business, health, or comfort may require or his in- clination may suggest; and whenever he in good faith 33 Phillips V. Meyers, 82 111. 67, 25 Am. Rep. 295; Poison v. Stewart, 167 Mass. 2n, 45 N. E. 737, 57 Am. St. Rep. 452; Adams V. Adams, 91 N. Y. 381, 43 Am. Rep. 675. For an exhaustive mono- graphic note on the validity of agreements to abandon pending or contemplated divorce suits, including agreements to resume marital relations, see 60 L. R. A. 406. 3* Moayon v. Moayon, 24 Ky. L. R. 1641, 72 S. W. 33, 60 L. R. A. 415. 35 Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227. 36 Schouler, Dom. Rel. § 37; Angler v. Angier, 7 Phila. (Pa.) 305; and cases cited in notes immediately following. 123 HUSBAND AND WIPE. § 63 changes his domicile, the wife is bound to follow him, and, if she fails to do so without legal excuse, she is guilty of desertion.*^ In other words, the wife's legal domicile is that of her husband, and changes with his f^ and this is true, although she may, in fact, be living apart from him,^^ even with his consent.*" The right of the husband to fix the matrimonial domicile is deemed of such importance that he cannot relinquish it even by an antenuptial contract, such relinquishment being contrary to public policy, and therefore void.*^ It seems that the husband's right to fix the matri- monial domicile is not an entirely arbitrary one, but must be exercised by him reasonably and in good faith. He cannot change his residence from mere whim or ca- price, and compel his wife to follow him, to the detri- ment of her health or comfort. Probably, if a change of residence would injuriously affect the wife's health, she would be justified in refusing to follow him, and 37 Cutler V. Cutler, 2 Brewst. (Pa.) 511; Angler V. Angler, 7 Phlla. (Pa.) 305; 9 Am. & Eng. Enc. Law (2d Ed.) 768. 3s Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227; Hood v. Hood, 11 Allen (Mass.) 196, 87 Am. Dec. 709; Suter v. Suter, 72 Miss. 345, 16 So. 673, Woodruff Cas. 171; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Hicks v. Skinner, 71 N. C. 539, 17 Am. Rep. 16; Dougherty v. Snyder, 15 Serg. & R. (Pa.) 84, 16 Am. Dec. 520; 10 Am. & Eng. Enc. Law (2d Ed.) 32. 39 Anderson v. Watt, 138 U. S. 694; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dee. 227; Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125; In re Wlckes' Estate, 128 Cal. 270, 60 Pac. 867, 49 L. R. A. 138; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709, 34 Am. St. Rep. 282, 16 L. R. A. 497; Halrston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; Hascall v. Hafford, 107 Tenn. 355, 65 S. W. 423, 89 Am. St. Rep. 952, 40 Hood V. Hood, 11 Allen (Mass.) 196, 87 Am. Dec. 709. 41 Hair V. Hair, 10 Rich. Eq. (S. C.) 103. § 63 CONSEQUENCES OF MARRIAGE. 129 his compelling her to do so would be legal cruelty ;*2 and her refusal to folloAV him in such case is not deser- tion.*'* A wife may, in some circumstances, acquire a differ- ent domicile from that of her husband whenever it is necessary for her to do so, or when their interests con- flict. It should be remembered that the doctrine of the legpl unity of husband and wife created by the marriage is but a legal fiction, which, while it ought to be ad- hered to in every proper case, should not be applied so as to work hardship and injustice, as in cases where there is no real union of the parties, and their interests are antagonistic. In such a case, where the reason of the rule ceases to exist, the rule itself ceases to oper- ate.** Thus the wife may acquire a separate domicile when she and her husband are permanently separated, as by a divorce a mensa et thoro,^^ or where she is abandoned or deserted by him.*^ So, also, a wife who has left her husband for good reason, as where he has « See Schouler, Dom. Rel. § 38; Angier v. Angler, 7 Phila. (Pa.) 305; Colvin v. Reed, .55 Pa. 375. *3 Powell V. Powell, 29 Vt. 148, Woodruff Cas. 172. In this case it was held that the refusal of a wife to reside with her husband near his relatives was not desertion entitling him to a divorce, where it appeared that her peace of mind might be seriously disturbed by them. It seems that the refusal of the wife to follow her husband to a foreign country, where her health might suffer. Is not desertion. Haymond v. Haymond, 74 Tex. 414, 12 S. W. 90. « See Colvin v. Reed, 55 Pa. 375. 45 Barber v. Barber, 21 How. (U. S.) 588; Hunt v. Hunt, 72 N. Y. 218, 28 Am. Rep. 129. 46Watertown v. Greaves, 112 Pod. 183, 56 L, R. A. 865; Hardin."; V. Alden, 9 Me. 140, 23 Am Dec. 549. Where a husband discards his wife and institutes divorce proceedings against her, she may ac- Long, D. R.— 9. 130 HUSBAND AND WIFE. § 64 given her cause for divorce, may acquire a separate domicile for the purpose of bringing a suit for di- vorce.*'^ But a Avife who deserts her husband without sufficient cause cannot acquire a separate domicile. In such case her domicile still follows his, notwithstanding such desertion.** § 64. The duty of support — Burial. The husband is bound to support the wife.*'' This duty, while universally recognized as of the utmost bind- ing force in morals, is ordinarily»enforced, not directly, by compelling the husband to perform it, but indirectly, by allowing third persons to supply the wife's needs and recover therefor from the delinquent husband.^" In, several states it is held that a court of equity quire a separate domicile by a change of residence. McGrew v. Mutual Life Ins. Co., 1S2 Cal. 85, 64 Pac. 103, 84 Am. St. Rep. 20. 47 Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Bur- tis V. Burtis, 161 Mass. 508, 37 N. E. 740; Atlierton v. Atherton, 155 N. Y. 129, 49 N. B. 933, 63 Am. St. Rep. 650, 40 L. R. A. 291; Id., 181 U. S. 155; Shreck v. Shreck, 32 Tex. 579, 5 Am. Rep. 251; Cook V. Cook, 56 Wis. 195, 14 N. W. 33, 443, 43 Am. Rep. 706. "Cheely v. Clayton, 110 U. S. 701; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709, 34 Am. St. Rep. 252. See note 39, supra. But in Prater v. Prater, 87 Tenn. 78, 9 S. W. 361, 10 Am. St. Rep. 623, it was held that a wife who deserted her husband and resided per- manently in another state was not entitled, as his widow and a resident of the state of his domicile, to homestead rights in his estate. See, generally, as to when a wife may acquire a separate domicile, monographic note in 84 Am. St. Rep. 27. «1 Bl. Comm, 442; 2 Kent, Comm. 146; Callahan v. Patterson, 4 Tex. 61, 51 Am. Dec. 712; and cases cited in notes immediately fol- lowing. A husband is not bound to support his wife's parents. Commis- sioners V. Gansett, 2 Bailey (S. C.) 320, 23 Am. Dec. 139. i>o See post, § 115 et seq. § 64 CONSEQUENCES OF MARRIAGE. 131 has inherent jurisdiction to compel a husband to pay- to his wife an allowance for her support, known as ali- mony, Avhere he refuses to support her, or she is living apart from him, although no decree of divorce is grant- ed.^^ But according to the weight of authority, a court of equity has no such power, and alimony cannot be granted in an independent suit, but only as an incident to divorce, unless the right to alimony as an independent right is created by statute,^^ as is the case in many states."^ At present, an independent suit for alimony may be maintained in most of the states, either under statu- tory provisions, or in accordance with the doctrine that courts of equity have inherent jurisdiction to grant such 51 Hinds V. Hinds, 80 Ala. 225, "Woodruff, Cas. 240; f'earce v. Pearce, 132 Ala. 221, 31 So. 85, 90 Am. St. Rep. 901; In re Popejoy, 26 Colo. 32, 55 Pac. 1083, 77 Am. St. Rep. 223; Graves v. Graves, 33 Iowa, 310, 14 Am. Rep. 525; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; Helms v. Franclscus, 2 Bland (Md.) 544, 20 Am. Dec. 402; Crane v. Meginnis, 1 Gill & J. (Md.) 403, 19 Am. Deo. 237; Edgerton v. Edgerton, 12 Mont. 122, 29 Pac. 966, 33 Am. St. Rep. 557; Earle v. Earle, 27 Neb. 277, 43 N. W. 118, 20 Am. St. Rep. '667; Rhame v. Rhame, 1 McCord Eq. (S. C.) 197, 16 Am. Dec. 597; Purcell V. Piircell, 4 Hen. & M. (Va.) 507; Almond v. Almond, 4 Rand. (Va.) 662, 15 Am. Dec. 781. saFischli v. Fischli, 1 Blackf. (Ind.) 360, 12 Am. Dec. 251; Par- sons V. Parsons, 9 N. H. 317, 32 Am. Dec. 362. See, also, Mucken- burg V. Holler, 29 Ind. 139, 92 Am. Dec. 345; and cases cited in 2 Am. & Eng. Enc. Law (2d Ed.) 94. 53 Statutes authorizing an Independent suit for alimony, and de- fining the circumstances in which such suits may be maintained, have been passed in Arkansas, California, Georgia, Illinois, Indiana, Kansas, Massachusetts, Michigan, New Jersey, New Hampshire, New York, North Carolina, Tennessee, Wyoming, Wisconsin, and possi- bly other states. See Finley v. Finley, 9 Dana (Ky.) 52, 33 Am. Dec. 528; Crane v. Meginnis, 1 Gill & J. (Md.) 463, 19 Am. Dec. 237; Winn V. Sanford, 148 Mass. 39, 18 N. B. 677, 1 L. R. A. 512; Buck- nam v. Bucknam, 176 Mass. 229, 57 N. E. 343, 49 L. R. A. 735. ]33 HUSBAND AND WIFE. § 64 relief.^* In some states the failure of the husband to support his wife is made by statute a criminal offense in certain cases.^^ The fact that the husband is insane^^ or an infant^'^ does not relieve him from the duty of supporting his wife. I The law does not prescribe the character of the sup- port which the husband must afford to the wife. This is a question which he may decide for himself, provided only that the support be reasonably sufficient, consid- ' ering the husband's circumstances and the wife's needs.^* It seems, however, that, where the husband's means are ample, his duty extends further than merely supplying the bare necessaries of life; and it has been held that making provision for his wife against a day when he may be incapacitated by disease or removed by death is at least so far a legal duty as to constitute a sufficient consideration to support a promise made to a third per- son to secure such provision.^^ 64 For a full discussion of this subject, see 2 Am. & Eng. Bnc. Law (Sd Ed.) 93-99, and exhaustive monographic note in 77 Am. St. Rep. 228. 65 See 15 Am. & Eng. Enc. Law (2d Ed.) 814; Poole v. People, li Colo. 510, 52 Pac. 1025, 65 Am. St. Rep. 510; People v. Malsch, 119 Mich. 112, 77 N. W. 638, 75 Am. St. Rep. 381. 63 Matter of Taylor, 9 Paige (N. Y.) 611; 16 Am. & Eng. Enc. Law (2d Ed.) 581. See, also, MoAnally v. Alabama Insane Hospital, 109 Ala. 109, 19 So. 492, 55 Am. St. Rep. 923, 34 L. R. A. 223; In re Stewart (N. J. Eq.) 22 Atl. 122; Shaw v. Thompson, 16 Pick. (Mass.) 198, 26 Am. Dec. 655. 57 See Turner v. Trisby, 1 Strange, 168; 16 Am. & Eng. Enc. Law (2d Ed.) 278. 68 See post, § 115. 60 Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724, 70 Am. St. Rep. 454. § 64 CONSEQUENCES OP MARRIAGE. I33 At common law a wife is not bound to support her- self, since this duty falls upon the husband."" Nor is she bound to support him, however needy he may be, and whatever may be the extent of her separate estate."^ It has even been held that a contract by the wife to sup- port her husband is void.'^^ In several states, however, the statutes provide for an allowance out of the wife's estate to a husband unable to support himself."^ And in some states the Avife is made liable along with the husband for family expenses.'^* Clearly, a married wo- man's separate estate may be charged with her support and that of her family when she has contracted for such support on her own credit, and not on behalf of her liusband."'^ And where the wife's separate property is 60 1 Bishop, Mar. Women, §§ 894, 895. Her earnings, however, sit common law, belong to her husband. See post, § 68. 61 See Lyon v. Lyon, 102 Ga. 453, 31 S. E. 34, 42 L. R. A. 194. 62 Corcoran v. Corcoran, 119 Ind. 138, 21 N. E. 468, 12 Am. St. Rep. 390, 4 L. R. A. 782. 63 See Livingston v. Superior Court, 117 Cal. 633, 49 Pac. 836, 38 L. R. A. 175. 61 Under such statutes, the wife was held liable for the items indi- cated in the following cases: Murdy v. Skyles, 101 Iowa, 549, 70 N. W. 714, 63 Am. St. Rep. 411 (medical services rendered to hus- band) ; Neasham v. McNair, 103 Iowa, 695, 72 N. W. 773, 64 Am. St. Rep. 202, 38 L. R. A. 847 (diamond shirt stud worn by husband) ; Leake v. Lucas, 65 Neb. 359, 91 N. W. 374, 93 N. W. 1019, 62 L. R. A. 190 (medical services rendered to husband) ; Dodd v. St. John, 22 Or. 250, 29 Pac. 618, 15 L. R. A. 717 (buggy bought by husband for family use). See note in 15 L. R. A. 717. Such a statute does not apply to citizens of other states tem- porarily in the state, and will not be enforced by the courts of other states against their own citizens. Mandell v. Fogg, 182 Mass. 582, 66 N. E. 198, 94 Am. St. Rep. 667. 63 25 Am. & Eng. Enc. Law (2d Ed.) 405; Priest v. Cone, 51 Vt. 495, 31 Am. Rep. 695; Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241, 37 Am. Rep. 817. If the husband is not able to support his wife 134 HUSBAND AND WIFE. ' 65 used for the support of the family with her consent, as where husband and wife live in a house owned by the wife, the husband is not liable therefor to the wife, in the absence of an agreement to that effect, and she cannot, at least as against his creditors, claim compen- sation from him.^® It is the right and duty of the surviving husband or wife to bury the body of the deceased consort, but it is generally held that the right of controlling the body ceases with the burial, and thereafter the disposition thereof belongs to the next of kin of the deceased. There is, however, some conflict of authority as to the respec- tive rights in this connection of the surviving consort and the next of kin or personal representatives of the decedent.*'^ § 65. "Right of husband to wife's services. The wife's obligation to render family services is at and her children, her separate property may be resorted to for that purpose. Callahan v. Patterson, 4 Tex. 61, 51 Am. Dec. 712. «8Trefethen v. Lynam, 90 Me. 376, 38 Atl. 335, 60 Am. St. Rep. 271. 67 See In re Weringer's Estate, 100 Cal. 345, 34 Pac. 825; Durell V. Hayward, 9 Gray (Mass.) 248, 69 Am. Dec. 284; Wynkoop v. Wyn- koop, 42 Pa. 293, 82 Am. Dec. 506; Pettigrew v. Pettigrew, 207 Pa. 313, 56 Atl. 878, 99 Am. St. Rep. 795; HacEett v. Hackett, 18 R. I. 155, 26 Atl. 42, 49 Am. St. Rep. 762; see, also, 8 Am. & Eng. Enc. Law (2d Ed.) 836-839, and note in 75 Am. St. Rep. 424. A widow has the legal right to the custody of the body of her deceased husband for the purposes of preservation, preparation, and burial, and to maintain an action for damages for the unlawful mutilation and dissection thereof. Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 28 Am. St. Rep. 370. The estate of an insane husband is liable for the wife's funeral expenses. In re Stewart (N. J. Eq.) 22 Atl. 122. § 65 CONSEQUENCES OP MARRIAGE. (35 least coextensive with the husband's duty to support her.** And it has been held that the wife of an insane man could not claim compensation out of his estate for her services in caring for him, notwithstanding a con- tract for such compensation with his guardian.''* And an agreement by a husband to pay his wife for her serv- ices as housekeeper is contrary to public policy and void.^° In such case the promise to pay for services which the very existence of the matrimonial relation makes it the wife's duty to render is without considera- tion.^' And it has been so held even where the services rendered were outside of the wife's ordinary household duties, as where she works for her husband in his busi- ness, and this, notwithstanding a statute giving to the wife her earnings from her own labor on her sole and separate account. Such a statute contemplates services rendered to strangers, and not to her husband.''^ lin- es Randall V. Randall, 37 Mich. 563. 09 Grant v. Grant, 41 Iowa, 88. TO Michigan Trust Co. v. Chapin, 106 Mich. 384, 64 N. W. 334, 58 Am. St. Rep. 490. To the same effect, see Miller v. Miller, 78 Iowa, 177, 35 N. W. 464, 42 N. W. 641, 16 Am. St. Rep. 431. Where a man and a woman cohabit as husband and wife in pursuance of a void marriage, which, however, the woman believes to be valid, the woman cannot, upon learning that the marriage was void, recover from the man for her services as housekeeper without a contract for such compensation, and in such case no such contract will be implied by law. Robbins v. Potter, 98 Mass. 532; Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721. But see Higgins v. Breen, 9 Mo. 493. 71 Lee V. Savannah Guano Co., 99 Ga. 672, 27 S. E. 159, 59 Am. St. Rep. 243. T2Whitaker v. Whitaker, 52 N. Y. 368, 11 Am. Rep. 711; Birkbeck V. Ackroyd, 74 N. Y. 356, 30 Am. Rep. 304; Matter of Callister, 153 N. Y. 294, 47 N. B. 268, 60 Am. St. Rep. 620; Blaechinska v. Howard 136 HUSBAND AND WIFE. § 65 der some of the more liberal statutes, an agreement by the husband to pay his wife for extraordinary services performed by her for him would be valid.'^^ Clearly, however, the statutes giving the wife the right to her separate earnings do not take from the husband his right to her services in connection with the discharge of her ordinary marital and domestic duties/* The husband's right to the wife's services includes not only her services rendered in connection with the care and management of the household and family, but also her services generally for whomsoever rendered. He has at common law an absolute right to whatever she may earn by her skill and labor during coverture. This rule, however, was subject to some exceptions even at common law, and has been generally abrogated by stat- ute.^s Mission, 130 N. Y. 497, 29 N. B. 755, 15 L. R. A. 215. See, also. Citizens' St. R. Co. v. Twiname, 121 Ind. 375, 23 N. E. 159, 7 L. R. A. 352. See note on the right of husband or wife to compensation for services rendered to each other, in 15 L. R. A. 215. -"' Carse v. Reticker, 95 Iowa, 25, 63 N. W. 461, 58 Am. St. Rep. 421. That a husband may give his wife her earnings, see post. § 68. ^1 Lee V. Savannah Guano Co., 99 Ga, 572, 27 S. E. 159, 59 Am. St. Rep. 243: Citizens' St. R. Co. v. Triname, 121 Ind. 375, 23 N. E. 159, 7 L. R. A. 352; Mewhirter v. Hatten, 42 Iowa, 288, 20 Am. Rep. 618. The husband may, however, waive his right even to family serv- ices. Thus, the wife may recover for services in caring for her hus- band's blind and aged father, where the latter, with the husband's consent, has agreed to pay for such services. Mason v. Dunbar, 43 Mich. 407, S8 Am. Rep. 201. It would seem, however, that she could not recover from the husband on a promise by him to pay for such care of his father. See Coleman v. Burr, 93 N. Y. 17, 45 Am. Rep. 160. 75 Prescott V. Brown, 23 Me. 305, 39 Am. Dec. 623, Woodruff Cas. 137. In this case it was held that a widow could not recover from § 67 CONSEQUENCES OP MARRIAGE. I37 II. The Property Rights of Husband and Wife. § 66. In general. As a necessary consequence of the unity of person of husband and wife, that is, the merger of her existence into his, we should expect that, at common law, what- ever belongs to the wife at the time of the marriage, or comes to her in any manner thereafter, during cov- erture, would belong to the husband, and this we shall find to be the case, subject, however, tO' certain excep- tions and qualifications. Thus, in general, all of the Avife's personal property and the beneficial ownership of her realty is vested in the husband. In other words, at common law, a woman is stripped of her property by marriage. On the other hand, having ceased legally to exist, she can have no interest in the property of her husband. These striking but perfectly logical conse- quences of the common-law doctrine of marital unity have been largely done away with by statutes abolish- ing this legal fiction. We shall now consider this subject in detail. § 67. Husband's interest in wife's property — Personalty. In considering the right acquired by the husband to his wife's personal property, a distinction must be made between personal property which the wife has actually in her possession at the time of the marriage, and that which belongs to her, but which is not in her actual a third person for services performed for him by her during cover- ture. The right of action in such case survives to the personal rep- resentatives of the husband, and not to the widow. See, also, post, § 68. 138 HUSBAND AND WIPE. § 67 possession. An article of personal property of the first description is called a "chose (or thing) in possession"; articles of the latter class are known as "choses in ac- tion." A chose in action is merely a right to bring an action, either immediately or at some future time, to recover the actual possession of a chattel or the payment of a sum of money." "^ In a broad sense, the term in- cludes rights of action founded upon torts committed against the person, as well as those founded upon con- tract or injuries to property.'^'' At common law the husband acquires by the marriage an absolute right to all of his wife's personal property in possession, whether belonging to her at the time of the marriage or acquired afterwards. Marriage is said to operate as a gift to him of such property.'^* The wife's choses in action, such as debts due to her at the time of the marriage or afterwards, by note, bond, or otherwise, as well as legacies or distributive shares 76 See, generally, 6 Am. & Eng. Enc. Law (2d Ed.) 2; Salee v. Arnold, 32 Mo. 532, 82 Am. Dec. 144. T7 In Smith V. Smith, 98 Tenn. 101, 38 S. W. 439, MoAlister, J., said: "It is well settled that torts committed upon a married woman are comprehended within the rlefinition of the term 'choses in action.' " So, also, in Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, Bradley, J., said: "While a right of action for a personal injury may not be within the definition, as frequently given, of a chose in action, that term, in its broidest sense, does embrace it." See, also, Chicago, etc., R. Co. v. Dunn, 52 111. 260, 4 Am. Rep. 606; Berger v. Jacobs, 21 Mich. 215. 7S2 Bl. Com.m. 433; 2 Kent, Comm. 143; 15 Am. & Eng. Enc. Law (2d Ed.) 820; Washburn v. Hale, 10 Pick. (Mass.) 429; Com. V. Manley, 12 Pick. (Mass.) 173; Salee v. Arnold, 32 Mo. 532, 82 Am. Dec. 144; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236; Caffey v. Kelley, Busbee Eq. (N. C.) ,48, Woodruff Gas. 92; Daniel T. Daniel, 2 Rich. Eq. (S. C.) 115, 44 Am. Dec. 244. § 67 CONSEQUENCES OF MARRIAGE. 139 of personalty, or any other chose in action, do not be- long absolutely to the husband. He has the right to collect, sue for and recover, release or assign them, or in any ^yay to reduce them to possession during cover- ture, and, if he so reduces them to possession, they be- come his absolutely, as in the case of any chose in pos- session. If he dies before reducing_ the property to po s- session, it goe s to the wife. If she dies first, it constitutes a part of her estate, and does not strictly survive to the husband, but, as her administrator, he may recover it for his own benefit as sole distributee, subject, how- ever, to the payment of the wife's debts. In other words, the marriage operates only as a qualified gift to the hus- band of the wife's choses in action, subject to the con- dition that he reduce them to possession during the cov- erture.'''' What constitutes a reduction to possession is some- times difficult to determine, but there must be such an appropriation of the property as gives to the husband '9 2 Bl. Comm. 433; 2 Kent, Copim. 135; 15 Am. & Bng. Enc. Law (2d Ed.) 822; Fleet v. Perrins, L. R. 3 Q. B. 536; Birmingham Waterworks Co. v. Hume, 121 Ala. 168, 25 So. 806, 77 Am. St. Rep. 43; Standeford v. Devoe, 21 Ind. 404, 83 Am. Dec. 351; Dunn v. Lancaster, 4 Bush (Ky.) 581, 96 Am. Dec. 317; Slocomb v. Breedlove, 8 La. 143, 28 Am. Dec. 135; Com. v. Manley, 12 Pick. (Mass.) 173; Locke V. McPherson, 163 Mo. 493, 63 S. W. 726, 85 Am. St. Rep. 546; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236; Westervelt v. Gregg, 12 N. Y. 202, 62 Am. Dec. 160; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17; Weeks v. Weeks, 5 Ired. Bq. (N. C.) Ill, 47 Am. Dec. 358; Ferrell v. Thompson. 107 N. C. 420, 12 S. E. 109, 10 L. R. A. 361; Robinson v. Woelpper, 1 Whart. (Pa.) 179, 29 Am. Dec. 44; Boozer v. Addison, 2 Rich. Eq. (S. C.) 273, 46 Am. Dec. 43; Harris V. Taylor, 3 Sneed (Tenn.) 536, 67 Am. Dec. 576; Hill v. Wynn, 4 W. Va. 453; note in 46 Am. Dec. 47. 140 HUSBAND AND WIFE. § i 8 for some moment of time absolute dominion over it with- out any concurrence of tlie wife f some act on his part evincing an intention to appropriate the chose to his own use.^^ § 68. Same — The wife's earnings. At common law, since the husband is entitled to the wife's services and to all personal property acquired by her, he has the right to whatever she may earn during coverture by her labor and skill.^^ It follows that prop- erty purchased with such earnings belongs to him;^* and the earnings and property purchased therewith are subject to the claims of his creditors.^* A husband may give his wife's earnings to her as her separate property, just as he may give any other prop- erty to her.^^ Such a gift, in equity, will create an equi- 80 Nicholson v. Drury Bldgs. Estate Co., 17 Ch. Div. 48. 81 Pierson v. Smith, 9 Ohio St. 554, 75 Am. Dec. 486. See 2 Kent, Comm. 136; 15 Am. & Eng. Enc. Law (2d Ed.) 825; Standeford v. Devoe, 21 Ind. 404, 83 Am. Dec. 351; Needles v. Needles, 7 Ohio St. 432, 70 Am. Dec. 85;- note in 37 Am. Dec. 577. This subject is now of little importance in view of the statutes taking away the husband's common-law rights. Extended discus- sioti is therefore deemed unnecessary. 82 15 Am. & Eng. Enc. Law (2d Ed.) 832; McLemore v. Pinkston, 31 Ala. 266, 68 Am. Dec. 167; Belford v. Crane, 16 N. J. Eq. 265, 84 Am. Dec. 155; Washburn v. Hale, 10 Pick. (Mass.) 429; Skill- man V. Skillman, 15 N. J. Bq. 478, 82 Am. Dec. 279; Cramer v. Re- ford, 17 N. J. Eq. 367, 90 Am. Dec. 594. See, also, ante, § 65. 83 Cramer v. Reford, 17 N. J. Eq. 367, 90 Am. Dec. 594. 84 Cramer v. Reford, 17 N. J. Eq. 367, 90 Am. Dec. 594; Campbell V. Bowles, 30 Grat. (Va.) 362; Bailey v. Gardner, 31 W. Va. 94, 5 S. E. 636, 13 Am. St. Rep. 847. 85 See cases cited in notes immediately following. There is some conflict of authority as to the validity of such gifts as against the husband's creditors. The particular circumstances § 68 ' CONSEQUENCES OP MARRIAGE. 141 table separate estate. But even in equity the wife's earnings cannot become lier property without a clear, express, and irrevocable gift, or some distinct aifirma- tive act of the husband divesting himself of them or set- ting them apart for her separate use.^^ Under statutes permitting direct dealings between husband and wife, such gifts are, of course, valid, at least as between the parties.^'' A common form of gift arises where the hus- band consents to the wife's carrying on some business requiring her labor and skill on her own account,^® as, for example, where he agrees that she may keep board- ers.** of each case, and, in some instances, statutory provisions, have af- fected the decisions. See, generally, MoNaught v. Anderson, 78 Ga. 499, 3 S. E. 668, 6 Am. St. Rep. 27S; Carse v. Reticker, 95 Iowa, 25, 63 N. W. 461, 58 Am. St. Rep. 421; Belford v. Crane, 16 N. J. Eq. 265, 84 Am. Dec. 155; Cramer v. Reford, 17 N. J. Bq. 367, 90 Am. Dec. 594; McKinnon v. McDonald, 4 Jones Eq. (N. C.) 1, 72 Am. Dec. 574; Yake v. Pugh, 13 Wash. 78, 42 Pac. 528, 52 Am. St. Rep. 17; Bailey v. Gardner, 31 W. Va. 94, 5 S. E. 636, 13 Am. St. Rep. 847. And see note in 58 Am. St. Rep. 495, 496. «0McLemore v. Pinkston, 31 Ala. 266, 68 Am. Dec. 167; Skillman V. Skillman, 15 N. J. Eq. 478, 82 Am. Dec. 279. 87 As to the validity of gifts between husband and wife, see, gen- erally, post, §§ 95-97. 88 Carter v. Smith, 82 Ala. 334, 60 Am. Rep. 738; Coughlin v. Ryan, 43 Mo. 99, 97 Am. Dec. 375; Kerr v. Vasser, 2 Ired. Eq. (N. C.) 553, 40 Am. Dec. 443; Penn v. Whitehead, 17 Grat. (Va.) 503; Jones v. Reid, 12 W. Va. 350, 29 Am. Rep. 455. See, also, Partridge v. Stocker, 36 Vt. 108, 84 Am. Dec. 664, and note. 89 Carse v. Reticher, 95 Iov;a, 25, 63 N. W. 461, 58 Am. St. Rep. 421. In McNaught v. Anderson, 78 Ga. 499, 3 S. E. 668, 6 Am. St. Rep. 278, it was held that an agreement by a husband with his wife that she might take boarders and own the proceeds was valid, and that land paid for with such proceeds belonged to the wife. In this case Chief Justice Bleckley said: "The legal unity of husband and wife has, in Georgia, for most purposes, been dissolved, and a legal ]42 HUSBAND AND WIFE. § 68 Where a husband makes to his wife an allowance for household expenses, anything she may save out of such allowance belongs to him, unless it clearly appears that he intended that the savings should be hers. But the husband may give the wife her savings as well as her earnings, and where the facts establish such a gift, the wife's savings are her separate property."" The general propositions that a husband is bound to support and maintain his wife, and that he is entitled to her labor and earnings, are undisputed; and while they actually live together in the usual course of the marital relation, very little difficulty arises in the ap- plication of these principles. It may be otherwise, however, in cases in which, although the legal relation still subsists, the parties have, in fact, become alienated and separated, and their interests possibly conflict. The effect of such a state of facts upon the husband's duty to support the wife will be considered later.^i Since the duality established. A v/ife is a wife, and not a husband, as she was formerly. Legislative chemistry has analyzed the conjugal unit, and it is no longer treated as an element, but as a compound. A husband can make a gift to his own wife, although she lives In the house with him, and attends to her household duties, as easily as he can make a present to his neighbor's wife. This puts her on an equality with other ladies, and looks like progress. Under the new order of things, when he induces her to enter into the business of keeping boarders, and promises to let her have all the proceeds, he is allowed to keep his promise if she keeps the boarders. It would seem that the law ought to tolerate him in being faithful to his word in such a matter, even though he has pledged it only to his wife, and we think it does." 90 Kerr v. Vasser, 2 Ired. Eq. (N. C.) 553, 40 Am. L^ 443. See, also, McKinnon v. McDonald, 4 Jones Eq. (N. C.) 1, 72 Am. Dec. 574; Abbott v. Wetherby, 6 Wash. 507, 33 Pac. 1070, 36 Am. St. Rep. 176; Schouler, Dom. Rel. § 161. 01 See post, §§ 118-122. § 68 X30NSEQUBNCES OP MARRIAGE. 143 duty of the husband to support the wife and her duty to render services to him are largely correlative duties, it would seem that, in any case in ^^'hich the husband would not be liable to a third person for necessaries fur- nished to his wife, he could not recover from a third person for services rendered to the latter by the wife. This, however, is not necessarily the case, as will appear when the conditions of the husband's liability are con- sidered."^ It seems clear, on principle, that where the husband abandons his wife, or by his misconduct com- pels her to leave him, he forfeits his right to her services, and cannot recover from a third person, by whom she has been employed."^ So, also, where the parties sepa- rate by mutual consent, and the wife is employed by a third person, receiving her own wages and supporting herself, the husband cannot recover from her employer, although he might still be legally bound to support his wife. In such case his assent to her receiving her own wages would be presumed,"^ and, as has been stated above, such assent, actually given, would preclude him from claiming them even where the parties are living together, since it would amount to a gift to her of her In many states the wife's earnings are now made her 02 See post, §§ 118-122. Clearly, the fact that the wife, by her misconduct, has forfeited her right to support, does not require that the husband, who is without fault, should lose his right to her services. 83 See post, § 90. 84 Norcross v. Rodgers, 30 Vt. 588, 73 Am. Dec. 323. In so holding the court said: "It is very probable that if the plaintiff [the hus- band] had notified the defendant, before payment to the wife, not to pay her, and that he claimed her wages, the defendant might not have been justified in paying her." 144 HUSBAND AND WIFE. § 68 separate property by express statutory provisions.®^ But to have this effect the statute must so provide in ex- press terms; the husband's right to his wife's earnings is not talven away by implication by statutes securing to the wife, in general terms, property owned or acquired by her.®® Moreover, a statute permitting the Avife to perform labor or services on her sole and separate ac- count, or providing that property acquired by her by labor or • services so performed shall be her separate property, does not necessarily deprive the husband of the benefit of the wife's services. Under such a statute she may elect to work for herself and retain her own earnings, but unless she makes such an election, the hus- band's common-law right remains unimpaired.^'^ And, in general, the statutes apply only to labor and services performed for third persons, and not to labor or services performed for the husband, even though of an extraor- dinary character, as where she works for him in his busi- ness.®^ Plainly the husband's right to the wife's serv- ices in connection with her household duties is not af- fected by the statutes.®® The statutes giving to the wife the right to her own 95 Harmon v. Old Colony R. Co., 165 Mass. 100, 42 N. B. 505, 52 Am. St. Rep. 499; Dayton v. Walsh, 47 Wis. 113, 2 N. W. 65, 32 Am. Rep. 757. See 25 Am. & Eng. Enc. Liw (2d Ed.) 357. 8c Bailey v. Gardner, 31 W. Va. 94, 5 S. E. 636, 15 Am. St. Rep. 847. See, also. Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122. 07 McCluskey v. Provident Sav. Inst., 103 Mass. 300; Birkbeck V. Ackroyd, 74 N. Y. 356, 30 Am. Rep. 304; Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122. See, also, Hamilton v. Booth, 55 Miss. 60, 30 Am. Rep. 500. 08 See ante, § 65. 00 See ante, § 65. § 70 CONSEQUENCES OF MARRIAGE. 145 earnings and services do not relieve the husband from the duty of supporting the wife."" § 69. Same— Chattels real. A chattel real is a species of property partaking of the nature both of real and of personal property. The only example known to American law is a lease of land for a term of years. By marriage the husband becomes ' entitled to the wife's chattels real (i. e., her interest as lessee of lands), and may dispose of them by sale, mort- gage, or otherwise during the coverture, and they are liable to be sold for his debts. • But he cannot dispose of them by will, and, upon the death of either husband or wife, her chattels real not disposed of by the husband during the coverture vest absolutely in the survivor.^"^ Oases for the application of these principles have rarely arisen in this country, and the law of the subject is prac- tically obsolete. § 70. Same — Real property. The husband does not, by the marriage, become the owner of the wife's real estate. This remains hers, and upon her death goes to her heirs ; but the husband is en- titled during coverture to the rents, issues, and profits, or, in other words, to the beneficial enjoyment of the land. This interest he can convey by his sole deed, and it is subject to sale on execution for his debts, and it 100 Boikbeck v. Ackroyd, 74 N. Y. 356, 30 Am. Rep. 304; Coleman V. Burr, 93 N. Y. 17, 45 Am. Rep. 160. Ml 2 Bl. Comm. 434; 1 Bishop, Mar. Women, 183-205; 2 Kent, Comm^ 134; 19 Am. & Eng. Enc. Law (2d Ed.) 819; Riley v. Riley, 19 N. J. Eq. 229, Woodruff Cas. 104. I Long, D. R.— 10. l46 HUSBAND AND WIFE. § 71 cannot be defeated by any act of the wife.^"^ His in- terest, however, lasts only during coverture, unless there is issue born alive of the marriage, in which case, after the wife's death, if he survives, he continues to enjoy the property for life. This right is distinct from his marital right to the land during coverture, though of 'the same extent, except as to the period of enjoyment, and is known as "curtesy."^"* The husband has no marital interest in realty owned by the wife as her statutory separate estate, or as her equitable separate estate, when his right is excluded by the statute or the instrument creating the estate.^"* He is, however, entitled to curtesy in either her statutory or equitable separate estate, if the common-law requisites exist, unless the statute or instrument creating the es- tate provides otherwise. In some states, however, cur- tesy is abolished by statute.^"® § 71. Wife's interest in husband's property. The wife acquires by the marriage no interest whatever in the husband's personal property during his life,^*"' although, as we have seen, she is entitled to support. But after the husband's death intestate, if she survives 102 2 Bl. Comm. 433; 2 Kent, Comm. 130; Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618; Babb v. Perley, 1 Me. 6, Woodruff Cas. 105; Burleigli v. Coffin, 22 N. H. 118, 53 Am. Dec. 236; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740. 103 The subject of curtesy will be found fully treated in works on the law of real estate. See 8 Am. & Eng. Enc. Law (2d Ed.) 506. 104 This follows necessarily from the nature of the estate as a separate estate. See post, §§ 74, 75. 105 See 8 Am. & Eng. Enc. Law (2d Ed.) 521. 100 This is a necessary consequence of the fact that by marriage she, in law, ceases to exist. § 71 CONSEQUENCES OF MARRIAGE. 147 him, she may claim a distributive share of the person- alty owned by him at the time of his death. There seems to be some doubt as to whether the wife had such a right at common law; but by the English statute of distribu- tions enacted in 1670 and 1671 (22 & 23 Car. II. c. 10) it was provided that the widow of a deceased intestate was entitled to one-third or one-half of the husband's per- sonal property remaining after the payment of his debts, the proportion depending upon whether there were or were not children of the marriage. This share was called the widow's "thirds" or "reasonable parts.""'' Thfe widow's right to a distributive share of her hus- band's personalty is now regulated in all of the states by statute. As the wife has no interest in the personal estate of her husband during his life, but he is the absolute owner thereof, he may, except as against his creditors, dispose of it in any manner he sees fit, although he thereby de- feats the wife's prospective shai'e as distributee."® If, however, the disposition is merely colorable, and made for the purpose of defeating the wife's claim, the hus- band reserving the control and dominion over the prop- 107 2 Bl. Comm. 515, 516; 2 Kent, Comm. 427; Schouler, Dom. Rel. § 205. 108 Crofut V. Layton, 68 Conn. 91, 35 Atl. 783; Small v. Small, 56 Kan. 1, 42 Pac. 323, 54 Am. St. Rep. 581, 30 L. R. A. 243; Dickerson's Appeal, 115 Ea. 138, 8 Atl. 64, 2 Am. St. Rep. 547; Lines v. Lines, 142 Pa. 149, 21 Atl. 809, 24 Am. St. Rep. 487; note in 24 Am. St. Rep. 490. See, also, Schmoltz v. Schmoltz, 116 Mich. 692, 75 N. W. 135; Sanborn v. Goodhue, 28 N. H. 48, 59 Am. Dec. 398. The husband may also dispose of his personal and real property (subject to dower) by will, and thus defeat the wife's claim, ex- cept where and to the extent to which this right is restricted by .statute. Rood, Wills, §§ 99-102. 148 HUSBAND AND WIFE. § 71 erty until his death, it is held by some courts that the wife, after the husband's death, may have the transfer set aside as a fraud upon her, and secure her distribu- tive share."'' Although there is some apparent conflict among the authorities and some confusion in the minds of the judges on this subject, this holding seems correct, — not, however, because the husband may not transfer his property so as to defeat, or even for the purpose of defeating, his wife's claim, but because, in the case stated, he has made no effective transfer. And it has been held that a transfer by the husband, whether voluntary or for a valuable consideration, and whether to take full effect at once or after his death, provided it is not rev- ocable by him so as to be a will in disguise, is valid as against the widow, although made for the purpose of defeating her claim.^^" This appears to be absolutely sound, for whatever be the motive or manner of trans- fer by the husband, provided it be complete and irrevo- cable, it cannot be a fraud upon the wife, for the plain reason that she has no right to the property during the husband's life. The mere chance that she may succeed 108 Smith V. Smith, 22 Colo. 480, 46 Pac. 128,'55 Am. St. Rep. 142, 34 L. R. A. 89; Id., 24 Colo. 527, 52 Pac. 790, 65 Am. St. Rep. 251; Walker v. Walker, 66 N. H. 390, 31 Atl. 14, 49 Am. St. Rep. 616, 27 L. R. A. 799; Thayer v. Thayer, 14 Vt. 107, 39 Am. Dec. 211. 110 Cameron v. Cameron, 10 Smedes & M. (Miss.) 394, 48 Am. Dec. 759; Holmes v. Holmes, 3 Paige (N. Y.) 363; Lightfoot v. Colgin, 5 Munf. (Va.) 42; and cases cited in note 108, supra. The mere reservation of the power of revocation, which is not ex- ercised, does not render the transfer testamentary and void aa against the wife. Dickerson's Appeal, 115 Pa. 198, 8 Atl. 64, 2 Am. St. Rep. 547; Lines v. Lines, 142 Pa. 149, 21 Atl. 809, 24 Am. St. Rep. 487. § 71 CONSEQUENCES OP MARRIAGE. 149 to some of his property after his death is not such an interest in property as will weigh against his absolute ownership of it — including the power of disposition — during his life. These principles apply to the disposition of real prop- erty as well as personalty, where the wife succeeds to real property as heir of the husband, and not merely by way of dower.^i^ The wife has no interest in the husband's real estate during his life, but after his death, whether there are children of the marriage or not, she, if surviving, is en- titled to dower, which is a life interest in one-third of the real estat e owned by him at the time of his death, or at any time during coverture. Unlike her distribu- tive share of the husband's personalty, her dower inter- est is a matter of legal right, and cannot be defeated by any act of the husband. If he disposes of the land by deed or will, the grantee or devisee takes it subject to the widow's claim to dower. The common law of dower has been modified in some states by statute, and in sev- eral states both dower and curtesy have been abolished, and other interests substituted therefor.^^^ " ' 111 Jones V. Somerville, 78 Miss. 269, 28 So. 940,. 84 Am. St. Rep. 627. A colorable conveyance of realty by a husband shortly before his death, made to defeat the wife's dower interest, will be set aside where, by statute, dower Is limited to lands of which the husband died seized. Thayer v. Thayer, 14 Vt. 107, 39 Am. Dec. 211. See, also, Stroup v. Stroup, 140 Ind. 179, 39 N. E. 864, 27 L. R. A. 523. 1121 Bishop, Mar. Women, § 239 et seq.; 10 Am. & Eng. Enc. Law (2d Ed.) 122; McCauley v. Grimes, 2 Gijl & J. (Md.) 323, Woodruff Cas. 114; In re Pulling's Estate, 97 Mich. 375, 56 N. W. 765, Wood- rufle Cas. Ill; In re Alexander, 53 N. J. Eq. 96, 30 Atl. 817, Woodruff Cas, 109; Church, v. Bull, 2 Denio (N. Y.) 430,. Woodruff Cas. 117; ) ) 150 HUSBAND AND WIFE. § 72 § 72. Conveyances in fraud of marital rights. A conveyance or other transfer of property by a wo- man about to marry, made without the knowledge of the intended husband, with intent to defeat his marital rights in the property, is a fraud upon him, and he raay have the transfer set aside after the marriage by a suit in equity;"* but such a transfer, made without fraudulent intent, may be valid."* The above principle applies also to transfers by the prospective husband. Thus a conveyance of real estate made by a man about to marry, without the knowledge of his intended wife, and for the purpose of defeating her dower right or other marital right, is a fraud upon her, and she may have the transfer, so far as it affects her interest, set aside either during the lifetime of her husband,^^^ or after his death."* The transfer will be Price V. Price, 124 N. Y. 589, 27 N. E. 383, WoodrufE Cas. 115; Gelzer V. Gelzer, 1 Bailey Eq. (S. C.) 387, WoodrufE Cas. 115. The subject of dower will be found fully discussed in works on the law of real estate. 113 2 Kent, Comm. 175; Schouler, Dom. Rel. § 181; 2 Pomeroy, Eq. Jur. § 1113; Ramsay v. Joyce, 1 McMul. Eq. (S. C.) 236, 37 Am. Dec. 550; Mauss v. Durant, 2 Rich. Eq. (S. C.) 404, 46 Am. Dec. 65; Waller v. Armistead, 2 Leigh (Va.) 11. iiiMcClure v. Miller, 1 Bailey Eq. (S. C.) 107, 21 Am. Dec. 522; Fletcher v. Ashley, 6 Grat. (Va.) 332; Gregory v. Winston, 23 Grat. (Va.) 102. 115 Murray v. Murray, 115 Cal. 266, 47 Pac. 37, 56 Am. St. Rep. 97, 37 L. R. A. 626; Petty v. Petty, 9 B. Mon. (Ky.) 215, 39 Am. Dec; 501; Cranson v. Cranson, 4 Mich. 230, 66 Am. Dec. 534; note in 39 Am. Dec. 218. lis Bookout V. Bookout, 150 Ind. 63, 49 N. E. 824, 65 Am. St. Rep. 350; Murray v. Murray, 90 Ky. 1, 13 S. W. 244, 8 L. R. A. 95; Swain V. Ferine, 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318; Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797, 41 L. R. A. 258. In Ward y. Ward, 63 Ohio St. 125, 57 N. B. 1095, 81 Am. St. Rep. i ,^-\Ju § 73 CONSEQUENCES OF MARRIAGE. 151 set aside, however, only to the extent of the wife's in- terest."^ And if made with her knowledge and con- sent, it is, of course, not fraudulent as to her."* § 73. Wife's pin money — Paraphernalia — ^Equity to settle- ment. "Pin money" is an allowance made to the wife by the husband for her current personal expenses for dress, adornment, etc. Pin money is intended for expenditure, and not for accumulation ; hence the wife cannot recover arrears of unexpended pin money, at least not more than one year's arrears, from her husband or his estate, and her personal representatives cannot recover even for one year, the trust being solely for the personal benefit of the wife. Pin money is practically unknown, in America, and of rare occurrence in Bngland.^^* The wife's "paraphernalia" (from the Greek, mean- ing "besides dower") consists of suitable ornaments or 621, 51 L. R. A. 858, it was held that a conveyance made by a widow- er, immediately before his second marriage, to his children by his former marriage, with no other consideration than love and affec- tion, and without the knowledge of his intended second wife, was fraudulent as to her, whether actual fraud was intended or not. But see contra, Alkire v. Alkire, 134 Ind. 350, 32 N. E. 571; Hamilton v. Smith, 57 Iowa, 15, 10 N. W. 276, 42 Am. Rep. 39; Butler V. Butler, 21 Kan. 521, 30 Am. Rep. 441. 117 Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797, 41 L. R. A. 258; Dudley v. Dudley, 76 Wis. 567, 45 N. W. 602, 8 L. R. A. 814. 118 Clark V. Clark, 183 111. 448, 56 N. E. 82, 75 Am. St. Rep. 115; Murray v. Murray, 90 Ky. 1, 13 S. W. 244, 8 L. R. A. 95. 110 See Bispham, Principles of Equity, § 108 ; 2 Pomeroy, Eq. Jur. § 1111; Schouler, Dom. Rel. § 160; 1 Bishop, Mar. Women, §§ 229- 238. See, also. Miller v. Williamson, 5 Md. 219; McKinnon v. Mc- Donald, 4 Jones Eq. (N. C.) 1, 72 Am. Deo. 574. The allowance was not always small. Thus, £13,000 a year was allowed in one case. Schouler, Dom. Rel. § 160, note. 152 HUSBAND AND WIFE. § 74 wearing apparel A\'liich she had at the time of her mar- riage, or which are given to her by her husband before or after marriage. These are the property of the husband, and, with the probable exception of necessary clothing, they may be sold or otherwise disposed of by him during coverture, and are liable to the claims of his creditors. But he cannot dispose of them by will, and, if undisposed of at the time of his death, they become thenceforth the property of the wife if she survives, sub- ject, however, to the claims of the husband's creditors.^^" The wife's "equity to a settlement" is a right which she has in equity to an allowance out of her own prop- erty, real or personal, for the support of herself and her children, where the husband has failed to provide for them. This right is enforced only in equity, and extends to property to which the husband is seeking to enforce his marital right. The amount settled may be a part, or, in extreme cases, the whole, of the fund which the hus- band is seeking to subject.^ ^^ The rights considered in this section are now of little or no consequence, since far more extensive rights are enjoyed by married women under modern statutes. § 74. Wife's equitable separate estate. The injustice and hardship of the rules of the common 120 2 Bl. Comm. 435, 436; Schouler, Dom. Rel. § 208; 1 Bishop Mar. Women, §§ 216-228; Howard v. Menifee, 5 Pike (Arlc.) 668 Woodruff Gas. 93; Hawliins v. Providence, etc., R. Co., 119 Mass. 596, 20 Am. Rep. 353. 1211 Bisliop, Mar. Women, §§ 624-696; 2 Pomeroy, Eq. Jur. §§ 1114-1118; 15 Am. & Eng. Enc. Law (2d Ed.) 837-845; Helms v. Franciscus, 2 Bland Ch. (Md.) 544, 20 Am. Dec. 402; Poindexter v. Jeffries, 15 Grat. (Va.) 363, Woodruff Gas. 161. § 74 CONSEQUENCES OP MARRIAGE. 153 law affecting the wife's property gave rise, at an early date, to what is known as the wife's equitable separate estate. An equitable separate estate is an estate, recog- nized only in equity, consisting of property given to or settled upon a wife for her separate use, to the exclusion, more or less complete, of the marital rights of the hus- band. The estate may consist of either personal or real property, and may be created either before^ ^^'^ or after marriage. It is always a trust estate ; that is, the legal title is vested in a trustee, who holds the property for the benefit of the A^ife. If no trustee is named in the instru- ment creating the estate, — which may be either a deed or a will, — the court will supply a trustee, usually con- sidering the husband as such. The property may be bestowed upon the wife by either the husband or a stran- ger. No particular words are necessary to create the estate, but it must clearly appear from the instrument creating it, whether deed or will, or from the nature of the transaction, that the property was intended for the separate use of the wife. The safest way to create such an estate is to settle the property to the "sole and sepa- rate use" of the wife, as these words have a well-recog- nized meaning. • The extent of the wife's power over her equitable sep- arate estate, as well as the extent to which the husband's rights are excluded, depend wholly upon the intention of the settler as expresed in the language used in creating the estate. As the principal object of such an estate is to 121a Although the estate may be created before marriage, its pe- culiar character does not attach until that event. Until the mar- riage, the beneficiary has all the powers over the estate as any feme sole has over her property. 154 HUSBAND AND WIFE. § 75 secure to the wife the separate use of her property dur- ing coverture, its peculiar character will ordinarily cease upon the termination of the coverture. The subject of equitable separate estates belongs more properly to a course in equity jurisprudence, and no treatment of it will be attempted here.'-- 5} 75. Wife's statutory separate estate. In most, if not all of the states, statutes secure to a married woman some or all of the property belonging to her at the time of marriage or thei'eafter acquired. This estate is known as the wife's statutory separate es- tate. It differs from her equitable separate estate in that it is made a separate estate by the force of the stat- ute, and not by the force of the instrument creating it. Thus, a conveyance of land, in the ordinary form directly to the wife or to a trustee for her, creates, under the statutes, a statutory separate estate. A conveyance to a trustee for the "sole and separate use" of the wife, con- ferring powers or imposing restrictions upon her not conferred or imposed by the statutes, creates an equita- ble separate estate. The wife's title to her statutory separate estate may be either legal or equitable. Her title to her equitable separate estate is always equitable, 122 See, generally, 2 Pomeroy, Eq. Jur. §§ 1098-1110; Blspham, Principles of Equity, §§ 96-115; 25 Am. & Eng. Enc. Law (2d Ed.) 331; Carroll v. Lee, 3 Gill & J. (Md.) 504, 22 Am. Dec. 350; Cooney V. Woodburn, 33 Md. 320, Woodruff Gas. 148; Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974, 28 Am. St. Rep. 426; Johnson v. Vail, 14 N. J. Eq. 423, Woodruff Gas. 150; Jacques v. Methodist Episcopal Church, 17 Johns. (N. Y.) 548, Woodruff Gas. 146; Nix V. Bradley, 6 Rich. Eq. (S. C.) 43, Woodruff Gas. 139; note In 30 Am T\Dn ^S3 § 75- CONSEQUENCES OF MARRIAGE. 155 that is, the estate is always vested in a trustee for the separate use of the wife.^^* How much of the wife's property, under the statute, will be separate estate, and how much left, as at common law, subject to the husband's marital right, as well as the extent of the wife's power over the property, will depend, of course, upon the terms of the particular stat- ute. In some states the wife is now made practically a feme sole as to her property, all of the property owned or acquired by her being made her separate estate, the husband's marital rights being taken away. In other states her rights and powers are less extensive. The general theory and object of the statutes is not so much the creation of a power to acquire, hold, and deal with property which the wife never possessed, as a partial or complete restoration of the power which she has lost by marriage.^^ An examination of her peculiar provi- sions of the various statutes is not within the scope of this work.^2^ The first act creating a statutory separate estate seems to have been the Mississippi act of 1839. The last of the old states to pass such an act was Virginia, its first stat- ute having been passed in 1877. Some question has been raised as to how the statutes removing the disabilities of married women and creating 123 See ante, § 74. 124 Krouskop V. Shontz, 51 Wiff. 204, 8 N. W. 241, 37 Am. Rep. 817. 125 For a full discussion of the wife's statutory separate estate, see 25 Am. & Eng. Enc. Law (2d Ed.) 331. Consult, also, the sev- eral state statutes and note in 99 Am. Dec. 366. In some states the separate estate is created by provisions of the state constitution, but the principles applicable to such provisions are the same as those applicable to the statutes. 156 HUSBAND AND WIFE. § 75 the statutory separate estate should be construed. Ac- cording to some authorities, the statutes, since they are in derogation of the common law, are to be construed strictly, and must not be enlarged by construction be- yond the plain meaning of the language used.^^ Ac- cording to other authorities, the statutes, since they are enabling or remedial statutes, should be construed lib- erally so as to carry out the purpose of their enact- ment.^^''' The true view, perhaps, is that in all cases the statutes should receive a fair interpretation, so as to carry out the intention of the legislature. The con- struction should not be so strict or technical as to de- feat the legislative intent, nor, on the other hand, so liberal as to go beyond it.^^^ It would seem that the statutes, having been passed to promote the interests of the wife, should be so construed as best to attain this object. The statutes are to be construed as operating pros- pectively only, unless it plainly appears that they were intended to have a retrospective effect.^ ^® 126 Brown v. Pifield, 4 Mich. 323. See 25 Am. & Eng. Enc. Law (2(1 Ed.) 347. The husband's rights In the wife's property are not to be excluded by construction. Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618. 127 Tillman v. Shackleton, 15 Mich. 447, 93 Am. Dec. 198; Norfolk, etc., R. Co. V. Prlndle, 82 Va. 122; Dayton v. Walsh, 47 Wis. 113, 2 N. W. 65, 32 Am. Rep. 757; Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241, 37 Am. Rep. 817. 128 See Alexander v. Alexander, 85 Va. 353, 7 S. E. 335. It has been suggested that the construction should be both strict and lib- eral, — strict in ascertaining what property is to be held as separate estate, but liberal in declaring the powers of married women over such separate estate. Burks, Prop. Rights Mar. Women (Va.) 60. See, also, 2 Bishop, Mar. Women, § 17. 120 2 Bishop, Mar. Women, § 37; 25 Am. & Eng. Enc. Law (2d Ed.) 347; Leete v. State Bank, 115 Mo. 184, 21 S. W. 788. § 75 CONSEQUENCES OF MARRIAGE. 157 The constitutionality of tliese statutes,^^" in so far as they apply to property acquired by or coming to the married woman after the enactment of the statutes, is unquestionable. A statute providing that property thereafter acquired by a married woman shall be her separate estate does not impair the obligation of con- tracts nor take away any vested rights of the husband ;^^^ and this, although it applies to married woman whose marriage took place before the enactment of the stat- ute.^ ^^ But the legislature has no power, by such a stat- ute, to deprive the husband of rights already vested when the statute was passed.^^^ There is some conflict among the authorities as to whether certain rights are to be considered as vested. Plainly, personal property in possession at the time of the marriage, or coming to the wife at any time before the enactment of the statute, belongs absolutely to the husband, and cannot be taken away from him by the legislature.^^* There is conflict as to whether the husband takes a vested right in his wife's choses in action which he has not reduced to pos- The statute will te given a retrospective effect when this is its plain meaning. Rugh v. Ottenheimer, 6 Or. 231, 25 Am. Rep. 513. 130 See, generally, 25 Am. & Eng. Enc. Law (2d Ed.) 346; mono- graphic note in 84 Am. St. Rep. 437. 131 Allen V. Hanks, 136 TJ. S. 300; Jackson v. Jackson, 144 111. 274, 33 N. B. 51, 36 Am. St. Rep. 427; Winn v. Riley, 151 Mo. 61, 52 S. W. 27, 74 Am. St. Rep. 517. 132 Allen V. Hanks, 136 U. S. 300; Winn v. Riley, 151 Mo. 61, 52 S. W. 27, 74 Am. St. Rep. 517; Rugh v. Ottenheimer, 6 Or. 213, 25 Am. Rep. 513. But see Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dec. 618. i33Erwin v. Puryear, 50 Ark. ^56, 7 S. W. 449; Spreckels v. Spreckels, 116 Cal. 339, 48 Pac. 228, 58 Am. St. Rep. 170; Rose v. Rose, 104 Ky. 48, 46 S. W. 524, 84 Am. St. Rep. 430; Vanata v. Johnson, 170 Mo. 269, 70 S. "W. 687. 134 See ante, § 67; 6 Am. & Eng. Enc. Law (2d Ed.) 957. 158 HUSBAND AND 'WIFE. § 75 session. The better view seems to be that he has no rested interestjn^chprogert J, and that the legislature may deprive him of his mere right to reduce the chose in action into possession.^ ^^ Some courts hold, how- ever, that the right to reduce the chose in action into possession is itself a vested right, of which he cannot be deprived by statute."® Under the modem view of the nature of the estate of tenancy by the curtesy ini- tiate, — that it is a contingent estate not vesting in the husband until the death of the wife, — it is generally held that the husband's right of curtesy initiate may be taken away by statute.^^^ The same is true of the wife's inchoate right of dower.^^* The statutes creating, separate estates do not abolish or affect equitable separate estates. Notwithstanding the statutes, it is still possible to create an equitable sep- 135 Mellinger v. Bausman, 45 Pa. 522; Alexander v. Alexander, 85 Va. 353, 7 S. E. 335, 1 L. R. A. 125. 136 Leete v. State Bank, 115 Mo. 184, 21 S. "W. 788; Id., 141 Mo. 574, 42 S. W. 1074; Vanata v. Johnson, 170 Mo. 269, 70 S. W. 687; Wester- velt V. Gregg, 12 N. Y. 202, 62 Am. Dec. 160. In this case it was held that the husband's right to collect a legacy to his wife was vested at the time of the testator's death, and could not be taken away by statute. In so holding, Edwards, J., said: "A right to re- duce a chose in action to possession is one thing, and a right to the property which is the result of the process by which the chose in action has been reduced to possession is another and a different thing; but they are both equally vested rights." 137 McNeer v. McNeer, 142 111. 388, 32 N. E. 681, 19 L. R. A. 256; Rugh V. Ottenheimer, 6 Or. 231, 25 Am. Rep. 513; Alexander v. Alexander, 85 Va. 353, 7 S. E. 335. But where curtesy initiate is held to be a vested right, the legislature cannot deprive the husband of it. Jackson v. Jackson, 144 111. 274, 33 N. E. 51, 36 Am. St. Rep. 427; Wyatt v. Smith, 25 W. Va. 813. See, also, 8 Am. & Eng. Enc. Law (2d Ed.) 516, and note in 19 L. R. A. 256. 138 2 Am. & Eng. Enc. Law (2d Ed.) 957; 10 Am. & Eng. Enc. Law (2d Ed.) 145. g 75 CONSEQUENCES OP MARRIAGE. isg arate estate for the benefit of the wife by vesting prop- erty in a trustee for her use by a deed or will contain- ing apt words to create euch an estate, and defining the powers of the wife in respect to the property. In this manner the operation of statutes giving the wife entire control over her property may be avoided.^ ^® § 76. Co-ownership of property. Husband and wife may own property together as co- owners. Thus, they may take and hold personal prop- erty as joint tenants or tenants in common.^*" So, also, at common law as well as under the statutes, they may take real property as cotenants, if the instrument cre- ating the estate contains apt words for the purpose."^ ISO 25 Am. & Eng. Enc. Law (2d Ed.) 345. See Code Va. (Pol- lard) § 2294; Andes v. Roller, 98 Va. 620, 37 S. E. 297. Whether a separate estate is an equitable separate estate or a statutory separate estate must be determined from the language and provisions of the Instrument to be construed in each case. If the instrument grants powers or imposes restrictions not granted or im- posed by the statute, but which are yet consistent with the rules and principles of equity, the estate will be construed to be an equitable, and not a statutory, separate estate. Jones v. Jones, 96 Va. 749, 32 S. E. 463. 140 Matter of Albrecht, 136 N. Y. 91, 32 N. B. 632, 32 Am. St. Rep. 700; Fiedler v. Howard, 99 VPis. 388, 75 N. W. 163, 67 Am. St. Rep. 865. i« Thornburg v. W^iggins, 135 Ind. 178, 34 N. E. 999, 41 Am. St. Rep. 422; Wilkins v. Young, 144 Ind. 1, 41 N. E. 68, 590, 55 Am. St. Rep. 162; Robinson's Appeal, 88 Me. 17, 33 Atl. 652, 51 Am. St. Rep. 367. Since, at common law, husband and wife are one person, it would seem that they could not hold an estate in cotenancy, which necessarily must be held by at least two persons. At the same time, it is settled at common law that, if a man and a woman not mar- ried to each other hold land as cotenants and afterwards inter- marry, they hold as cotenants still; and also, as stated in the text, that an estate may be conveyed to husband and wife as cotenants, when this is the manifest Intent. See 2 Cruise, Real Prop. 508-511; 160 HUSBAND AND WIFE. § 76 To have this effect,hoAveyer,at common law, the intention to create such an estate must be manifest. Ordinarily a conveyance of realty to husband and wife in such form as would create in grantees other than husband and wife an estate in cotenancy, will vest in the husband and wife a peculiar joint estate, known as a "tenancy by entire- ties." This is essentially a joint tenancy, as modified by the common-law doctrine that husband and wife are one person in law. Neither consort can convey any part of the estate without the concurrence of the other, nor can there be any severance or partition during their joint lives. On the death of either, the survivor holds the en- tire estate. Tenancies by entireties exist usually in real estate, and there is strong reason and weighty authority for the view that there can be no such estate in personal property; but it has been held in a number of cases that such an estate may exist in personal as well as in real property. Tenancies by entireties are generally held not to be affected by the statutes abolishing survivorship among joint tenants and creating separate estates ; but they have been abolished in some states by other stat- utes."2 1 Bishop, Mar. Women, §§ 616-618. This is an instance in which the fiction of identity of person is not rigidly applied. 1*2 See 19 Am. & Eng. Enc. Law (2d Ed.) 847; 1 Bishop, Mar. Women, §§ 211, 613-623; Thornburg v. Wiggins, 135 Ind. 178, 34 N. E. 999, 41 Am. St. Rep. 422; Wilkins v. Young, 144 Ind. 1, 41 N. E. 68, 590, 55 Am. St. Rep. 162; Robinson's Appeal, 88 Me. 17, 33 Atl. 652. 51 Am. St. Rep. 367; Dickey v. Converse, 117 Mich. 449, 76 N. W. s80, 72 Am. St. Rep. 568; Phelps v. Simons, 159 Mass. 415, 34 N. E. 657, 38 Am. St. Rep. 430; Johnson v. Johnson, 173 Mo. 91, 73 S. W. 202, 96 Am. St. Rep. 486, 61 L. R. A. 16B; Den v. Harden- bergh, 10 N. J. Law, 42, 18 Am. Dec. 371; Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337, 43 Am. St. Rep. 762, 30 L. R. A. 305; McNeeley v. g 77 CONSEQUENCES OF MARRIAGE. 16i In several states a peculiar system of co-ownership of property exists, — based on the principle that each spouse should have an equal interest in the matrimonial gains. The system is said to have been borrowed from the Spanish law, and prevails in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. Property so held is known as "community property," and consists in general of all property ac- quired by either or both of the spouses during coverture as the product of labor or skill, or in any other man- ner, except by gift, bequest, devise, or descent. While the wife has an equal interest in community property with the husband, the property is generally under his sole control, and is liable for his debts. The subject of community property is regulated almost wholly by stat- ute."3 § 77. Marriage settlements — Antenuptial contracts. As originally understood, marriage settlements were ordinarily, if not always, settlements of property, made in trust in contemplation of marriage, by the prospective husband or by a third person, for the benefit of the pros- pective wife and the issue of the marriage. In this sense, marriage settlements have been very common in Eng- South Penn Oil Co., 52 W. Va. 616, 44 S. E. 508, 62 L. R. A. 562; notes in 18 Am. Dec. 377; 22 L. R. A. 594; and 30 L. R. A. 305. 143 See 6 Am. & Eng. Law (2d Ed.) 293; Sprcckels v. Spreck- els, 116 Cal. 339, 48 Pac. 228, 58 Am. St. Rep. 170, 36 L. R. A. 497; Cunha v. Hughes, 122 Cal. Ill, 54 Pac. 535, 68 Am. St. Rep. 27; Fennell v. Drinkhouse, 131 Cal. 447, 63 Pac. 734, 82 Am. St. Rep. 361; Morse v. Estabrook, 19 Wash. 92, 52 Pac. 531, 67 Am. St. Rep. 723; notes in 86 Am. Dec. 629, 96 Am. St. Rep. 916, and 19 L. R. A. 233. Long, D. R.— 11. Ib2 HUSBAND. AND WIFE. § 77 land, but are raxe in the United States ; but in this coun- , try antenuptial contracts, sometimes also called "mar- riage settlements," are very common. These are agree- ments made by the husband and wife before marriage, fixing their respective rights in their own or each other's property after marriage, thus excluding the ordinary operation of the law in this respect. Such agreements are valid so far as they affect property rights, but not where they attempt to affect the personal rights, duties, and liabilities growing out of the marriage. Thus, the parties may agree that both or either may retain any or all of his or her property free from any marital claim of the other, but an agreement that the wife may select the domicile is void,"* as is also an agreement that the husband shall not be liable for the wife's antenuptial debts, when such liability is imposed upon him by law.^*^ The contract, although made before marriage, is not extinguished by the intermarriage of the par- ties.^*® The marriage is a sufficient consideration to support it. Under the statute of frauds, the contract must be in writing, and marriage is not a sufficient part performance to take it out of the operation of the stat- ic Hair V. Hair, 10 Rich. Eq. (S. C.) 163. 145 Coles V. Hurt, 75 Va. 380. Whenever a peculiar status is assigned by law to the members of any particular class of persons, affecting their general position in or with regard to the rest of the community, no one belonging to such a class can vary, by any contract, the rights and liabilities in- cident to this status. If he could, his private agreements would out- weigh the law of the land. Coverture is such a status. Freeman's Appeal, 68 Conn. 533, 37 Atl. 420, 57 Am. St. Rep. 112. "6 See post, § 94. § 78 CONSEQUENCES OP MARRIAGE. 163 ute. No particular form of contract is required, so long as the agreement is definitely set forth. As between the parties the agreement is valid and binding when free from fraud and undue influence, but may be set aside for either. It may be rescinded or annulled after marriage by mutual consent, but not by one party alone, urrless a power of revocation is reserved. The divorce of the parties for a cause arising after mar- riage does not affect the contract, unless the contract expressly so provides. It seems that a decree of dissolu- tion for a cause rendering the marriage void or voidable •a6 initio annuls the contract. The misconduct of a party after marriage does not work a forfeiture of his or her rights under the contract. As to creditors and purchasers, the agreement is valid in the absence of fraud, and even if it is fraudulent on the part of one party, if the other party is innocent of the fraud. Thus, a conveyance by a man to his intended wife, made in consideration of marriage, but with intent to defraud his creditors, is valid after the marriage as against them, if the wife was ignorant of the fraud, un- less there is a statute providing otherwise. In some states, antenuptial contracts or settlements are required to be recorded in order to be valid as to creditors and purchasers without notice.^*^ y^ 78. Postnuptial settlements. Postnuptial settlements are settlements of property made after marriage either by a third person upon or in 147 For a full discussion of marriage settlements and antenuptial contracts, see the author's article in 19 Am. & Bng. Enc. Law (2d Ed.) 1224. See, also, Schouler, Dom. Rel. §§ 171-183. OSI 'raBaSui -a minis iEOS '"iaa 'IS "^Y 6* 'n 'M. "S 6S '10^ '^H 164 HUSBAND AND WIFE. § 78 trust for one or both of the parties, or transfers of prop- erty from one spouse to the other, — usually from the husband to the wife. They may be either voluntary, as gifts, or for a valuable consideration. The marriage, however, being a past consideration, is not a sufficient consideration. Such settlements, whether voluntary or for a valuable consideration, are valid between the par- ties when free from fraud or undue influence. But by reason of the husband's presumed influence "over the wife, conveyances of property from the wife to the husband, or settlements unfavorable to her, are presumptively voidable, and the burden is ordinarily upon him to prove that they are fair. This is especially true in the case of gifts from the wife to the husband. Except as to the mode of transfer where husband and wife are not per- mitted to deal directly with each other, transfers of prop- erty between husband and wife are governed by the same general rules applicable to transfers between other per- sons sustaining a confidential relation to each other. As against existing creditors of the settlor, such settle- ments or transfers are valid when founded upon a val- uable consideration, if fairly made, although the settlor may be embarrassed or insolvent; but a voluntary set- tlement is voidable if made with intent to defraud, and even where there is no such intent, if the settlor is in- solvent, or rendered so by the^ settlem^i. As against subsequent creditors the settlement is valid if founded' upon a valuable consideration, and a voluntary settle- ment is presumptively valid unless made with actual fraudulent intent, or in contemplation of future indebt- edness.1** 1*8 See 19 Am. & Eng. Enc. Law (2(i Ed.) 1224; Schouler, Dom., Rel. §§ 184-195. g 78 CONSEQUENCES OP MARRIAGE. 155 It will be observed that the above rules as to the valid- ity of postnuptial settlements as against creditors are not peculiar to the law of husband and wife. They are applicable to any case of a transfer of property by a xlebtor, and constitute a part of the general law of fraud- ulent sales and conveyances. At the same time, it is probably true that more transfers between husband and wife are or might be assailed for fraud than between any other persons. The marital relation certainly fur- nishes a most convenient cover for a fraud of this kind, by which a man may place his property beyond the reach of his creditors by transferring it to his wife, and still continue to enjoy it himself as before. In former times, when the intervention of a third person was necessary to make the transfer, the opportunity for fraud was very much less than under the modern statutes, enabling hus- band and wife to deal directly with each other; and it may well be questioned whether the principal substan- tial result of these much-lauded statutes has not been to enable fraudulent debtors to hold on to their property under cover of their wives' names while their creditors go unpaid. Certainly, the number of such fraudulent transfers has vastly increased since the statutes were passed. Of course, if the fraud in any case were proved against the parties, the transfer could be set aside ; but it should be remembered that fraud, though always easy to charge, is often hard to prove."" In some states, however, transfers of property between husband and 149 For exhaustive monographic notes on attacfe by creditors on conveyances by liusbands to their wives, see 90 Am. St. Rep. 497, and 56 L. R. A. 823. 166 HUSBAND AND WIFE. § 79 wife are presumed to be voluntary and fraudulent as to creditors, and the burden of establishing their good faith and validity is upon those claiming under them.^^" § 79. Eights of surviving husband or wife. Upon the death of the wife, the husband, if surviving, has the right to act as the administrator of his wife's estate, though whether this was originally a common- law or a statutory right is disputed.^^^ The wife has a corresponding right, subject, however, to the discretion of the court.^^^ The matter of administration is now everywhere reg- ulated by statute, the surviving husband or wife being usually, if not always, preferred, in making the appoint- ment.^^* Upon the wife's death, the surviving husband is en- titled, at common law, to all of her personal property which was in possession or was reduced to possession during the coverture. His title to such property, being leoSeltz V. Mitchell, 94 U. S. 580; Adone v. Spencer, 62 N. J. Eq. 782,- 49 Atl. 10, 90 Am. St. Rep. 484; De Paiges v. Ryland, 87 Va. 404, 12 S. E. 805, 24 Am. St. Rep. 659; Wallace v. Pereles, 109 Wis. 316, 85 N. W. 371, 83 Am. St. Rep. 898. The wife will not be allowed, as against the husband's creditors, to absorb his property under the cover of family support; and transfers by the husband to the wife of his means and earnings will be scrutinized closely by the courts. Trefethen v. Lynam, 90 Me. 376, 38 Atl. 335, 60 Am. St. Rep. 271. 1512 Kent, Comm. 135; Schouler, Dom. Rel. § 196; 1 Bishop, Mar. Women, § 172 et seq.; 11 Am. & Eng. Enc. Law (2d Ed.) 768; 15 Am. & Eng. Enc. Law (2d Ed.) 825. 102 2 Kent, Comm. 411; Schouler, Dom. Rel. § 204; 11 Am. & Eng. Enc. Law (2d Ed.) 769. 103 Sse 11 Am. & Eug. Enc. Law (2d Ed.) 720. § 79 CONSEQUENCES OP MARRIAGE. 167 absolute, is not affected by the death of the wife.^^* If, however, she dies leaving choses in action not reduced to possession, he succeeds to them only as administrator, and not in his own right. As administrator he may sue on and recover them, but they are subject, in his hands, to the payment of her antenuptial debts. Anything left after the payment of her debts belongs to him abso- lutely.i" Upon the death of the husband intestate and without lineal descendant, the surviving widow is entitled under the English statute of distributions (22 & 23 Car. II. c. 10) to one-half of his personal property remaining after the payment of his debts, the other half going to his next of kin. If the husband left children or their descend- ants, the widow's share is one-third, the other two-thirds going to the children or their representatives.^^® The surviving husband is entitled to no interest what- ever in his deceased wife's realty, unless there was a child born alive of the marriage, in which case he is en- titled to curtesy.^^'^ The surviving wife is entitled to dower in her deceased husband's realty, unless her r jght has been barred in some manner during marriage or by antenuptial contract.^ ^* The right of succession is now wholly regulated by statute in all the states.^ '^^ 154 See ante, § 67. 155 Locke V. McPherson, 163 Mo. 493, 63 S. W. 726, 85 Am. St. Rep. 546, 52 L. R. A. 420. See ante, § 67. 156 See ante, § 71. 157 See ante, § 70. 158 See ante, § 71. 159 See 27 Am. & Eng. Enc. Law (2d Ed.) 290; note In 12 Am. St. Rep. 81. 168 HUSBAND AND WIFE. § 80 § 80. Conflict of laws as to property rights. The rights acquired by the marriage by husband and wife, respectively, in each other's personal property, are determined by the law of the place of their matrimonial domicile, which, in the absence of a contrary intention, is the domicile of the husband at the time of the mar - riage. If both parties are domiciled in the same state, and the marriage takes place therein, the law of that state, and not that of a state to which the parties may afterwards remove, will govern as to the rights acquired by the marriage.^®" So, also, where a woman domiciled in one state marries a man domiciled in another state, she acquires by the marriage the domicile of her hus- band, and it is the law of his domicile, and not that of her former domicile, that will govern.^ ^^ The place of the marriage is immaterial.^ '^^ The respective rights of Although, at common law, neither husband nor wife Is the heir of the other, it is otherwise in some states under the statues. See In re Ingram, 78 Cal. 586, 21 Pac. 435, 12 Am. St. Rep. 80; In re Dobbel's Estate, 104 Cal. 432, 38 Pac. 87, 43 Am. St. Rep. 123; Lyons V. Yerex, 100 Mich. 214, 58 N. W. 1112, 43 Am. St. Rep. 452; note in 12 Am. St. Rep. 83.. leo Doss V. Campbell, 19 Ala. 590, 54 Am. Dec. 198; McLean v. Hardin, 3 Jones Eq. (N. C.) 294, 69 Am. Dec. 740. lei Parrett v. Palmer, 8 Ind. App. 356, 35 N. B. 713, 52 Am. St. Rep. 479; Townes v. Durbin, 3 Mete. (Ky.) 352, 77 Am. Djec. 176; Mason V. Homer, 105 Mass. 116; Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17; Kneeland v. Bnsley, Meigs (Tenn.) 620, 33 Am. Dec. 168. But see Locke v. McPherson, 163 Mo. 493, 63 S. W. 726, 52 L. R. A. 420. The law of the intended matrimonial domicile, though not the actual domicile at the time of the marriage, governs. Allen V. Allen, 6 Rob. (La.) 104, 39 Am. Dec. 453; Routh v. Routh, 9 Rob. (La.) 224, 41 Am. Dec. 326. See, also. State v. Barrow, 14 Tex. 179, 65 Am. Dec. 109. 102 Allen V. Allen, 6 Rob. (La.) 104, 39 Am. Dec. 553. § so CONSEQUENCES OF MARRIAGE. 169 the parties in personalty acquired subsequent to tlie mar- riage will be determined by the law of their domicile at the time the property was acquired.'^'^^ . Rights oiice ac- quired will not be divested by a subsequent change of domicile to a place where, under the local law, they would not have been acquired ;^''^ and, conversely, where no right was acquired under the law of the domicile at the time, a subsequent change of domicile t6 a place where rights would have attached will not confer such rights.^''^ In other words, rights once fixed will not be affected by any subsequent change of domicile. The rig hts of the parties depend wholly upon the ques- tion of domicile, and it is immaterial where the property is situated.^®® This rule, however, will not be applied where it would contravene some positive rule of law or of public policy of the state in which the property is located.^®'' The respective rights of husband and wife in each other's real property will be governed by the law of the place where the property is situated.^ '^* 103 Birmingham Waterworks Co. v. Hume, 121 Ala. 168, 25 So. 806, 77 Am. St. Rep. 43; Saul v. Creditors, 5 Mart. (N. S.; La.) 569, 16 Am. Dec. 212; Succession of Packwood, 9 Rob. (La.) 438, 41 Am. Dec. 341; Noonan v. Kemp, 34 Md. 73, 6 Am. Rep. 307; McCollum V. Smith, Meigs (Tenn.) 342, 33 Am. Dec. 147; Kneeland v. Ensley, Meigs (Tenn.) 620, 33 Am. Dec. 168; State v. Barrow, 14 Tex. 179, 65 Am. Dec. 109. See Puss v. Puss, 24 "Wis. 256, 1 Am. Rep. 180. i64Gluck V. Cox, 90 Ala. 331, 8 So. 161; Bonati v. Welsch, 24 N. Y. 157. See O'Neill v. Henderson, 15 Ark. 235, 60 Am. Dec. 568. 165 Doss V; Campbell, 19 Ala. 590, 54 Am. Dec. 198. 166 Noonan v.- Kemp. 34 Md. 73, 6 Am. Rep. 307; McLean v. Har- din, 3 Jones Eq. (N. C.) 294, 69 Am. Dec, 740.. 167 Smith V. McAtee, 27 Md. 420, 92 Am. Dec. 641. 168 Short V. Galway, 83 Ky. 501, 4 Am. St. Rep. 168; Staigg v 170 HUSBAND AND WIFE. § 82 III. The Disabihties op Covebtube. § 81. Disabilities of the husband. In general, marriage imposes, at common law, no dis- abilities whatever upon the husband except that he can- not deal directly with his wife nor testify as a witness for or against her. He may contract, sue and be sued, and acquire, hold, and, in general, dispose of, property in the same manner and to the same extent as if sole. The marriage does not affect his status, identity, or ca- pacity before the law. § 82. Disabilities of the wife — In general. At common law a woman, by marriage, loses, to a con- siderable extent, the legal capacity which she possessed as a feme sole. Her disability in some cases, as, for ex- ample, in respect to the making of contracts,^ ^^^ is prac- tically complete ; in other cases, as in respect to the mak- ing of wills of personalty, it is partial only. These dis- abilities are the result, in part, of the legal merger of the wife's existence into that of her husband, and in part of the presumed control exercised over her by him. Her disabilities in some cases, perhaps, work a hard- Atkinson, 144 Mass. 564, 12 N. E. 354; Depas v. Mayo, 11 Mo. 314, 49 Am. Dec. 88; McCollum v. Smith, Meigs (Tenn.) 342, 33 Am. Dec. 147. See, also, Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974, 28 Am. St. Rep. 426; Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180. See, generally, 22 Am. & Eng. Enc. Law (2d Ed.) 1354; mono- graphic notes in 85 Am. St. Rep. 552, and 57 L. R. A. 353. 108a In discussing the subject of the wife's common-law disabil- ity, Mr. Bishop says: "The conclusion of all is that, with the ex- ception of contract and what depends upon it, the coverture alone, without the element of re^.l or presumed coercion, takes from the wife no legal capacity." 1 Bishop, Mar. Women, § 70G. § 82 CONSEQUENCES OP MARRIAGE. 171 ship upon her, but in most cases they result simply in inconvenience, and, on the whole, their general effect is to protect the wife.i*"* Moreover, "for these disabilities she is liberally compensated by the obligations which the marriage imposes upon the husband to provide for her support during the coverture, and by a claim for dower after its dissolution. She has also many exemp- tions from civil and criminal process, to which he alone is liable, although both may have participated in the benefit of the contract or commission of the crime, dur- ing the continuance of the matrimonial connection."^^** The common-law rules of disability were relaxed in certain cases of necessity, in which the reasons upon which they were based had ceased to exist,^''^ and at present most of the wife's disabilities have been abol- ished by statute. Except, however, where they have been removed by statutes, — which must receive a reason- able construction in the spirit of their enactment,^the disabilities of the wife remain as at common law.^'^^ 169 These personal disabilities the common law imposed partly for the protection of the husband, and partly for that of the wife. Free- man's Appeal, 68 Conn. 533, 37 Atl. 420, 37 L. R. A. 452. See the often quoted passage of Blackstone in which, with his characteristic enthusiasm for the common law, he observes: "Even the disabilities which the wife lies uhder are for the most part in- tended for her protection and benefit; so great a favorite is the fe- male sex of the laws of England." 1 Bl. Comm. 445. See Christian's note on this passage. 170 Putnam, J., in Gregory v. Paul, 15 Mass. 31. 171 See post, § 90. 172 Bteacock v. Heacock, 108 Iowa, 540, 79 N. W. 353, 75, Am. St. Rep. 273; Brown v. Brown, 121 N. C. 8, 27 S. E. 998, 38 L. R. A. 242. As to the construction of statutes removing the disabilities of a 172 HUSBAND AND WIFE. § 83 The extent to which the wife's disabilities have been re- moved varies in the different states. The removal, espe- cially in the older states, has been somewhat gradual, and new statutes are constantly being passed abrogating more and more of the common law. The general trend of the statutes is to give to the wife the status; of a feme sole. In view of the local application and changing character of the legislation on this subject, the decisions under the various statutes are of little general inter- est."s § 83. Same — Disability to contract. At common law, since she is presumed to act under the dominion of her husband, and hence to have no in- dependent will, a married woman, except in a few special instances, has no power to bind herself by contract. Her contracts, so far as she is concerned, are absolutely void, and cannot be enforced either during the coverture^ ^* or married woman, see Haas v. Shaw, 91 Ind. 384, 46 Am. Rep. 607; Clow V. Chapman, 125 Mo. 101, 28 S. W. 328, 46 Am. St. Rep. 468. 173 For a note setting forth the statutory provisions of the vari- ous states, see 76 Am. Dec. 366; and see, generally, 2 Bishop, Mar. Women, and the sections of this work immediately following. i'*2 Kent, Comm. 150; Schouler, Dom. Rel. § 58; Rogers v. Phil- lips, 8 Ark. 366, 47 Am. Dec. -727; Dobbin v. Dobbin, 17 Ark. 189, 65 Am. Dec. 425; Sweeney v. Smith, 15 B. Mon. (Ky.) 325, 61 Am. Dec. 188; Burton v. Marshall, 4 Gill (Md.) 487, 45 Am. Dec. 171; Shaw V. Thompson, 16 Pick. (Mass.) 198, 26 Am. Dec. 655; Palmer V. Oakley, 2 Doug. (Mich.) 433, 47 Am. Dec. 41; Jackson v. Vander- heyden, 17 Johns. (N. Y.) 167, 8 Am. Dec. 378; Dorrance v. Scott, 3 Whart. (Pa.) 309, 31 Am. Dec. 509; Caldwell v. Walters, 18 Pa. 79, 55 Am. Dec. 592; Harris v. Taylor, 3 Sneed (Tenn.) 536, 67 Am. Dec. 576; Hollis v. Francois, 5 Tex. 195, 51 Am. Dec. 760; Pickens' Ex'rs V. Kniseley, 36 W. Va. 794, 15 S. B. 997. § 83 CONSEQUENCES OF MARRIAGE. 173 after its termination.^ ^'^ Tlius, she cannot bind lierself by a promissory note signed by herself alone,^'^" or jointly with her husband.^^^ Nor can she appoint an agent or attorney/''® nor bind herself for attorney's fees for procuring a divorce.^'* The fact that the wife's con- See, generally, as to the power of a married -woman to contract, 15 Am. & Eng. Enc. Law (2d Ed.) 790. It is to be noted that the married woman's disability to contract is one of the peculiar effects of the coverture, and is not the result of any personal incapacity on her part. In this respect it differs from the disability of an Infant. The infant's disability grows out of his inexperience and want of discretion; the married woman's is the consequence of the paramount authority of the husband. .It follows that the wife's disability is far more complete than that of an infant. Her contracts, even for necessaries, are, with a few ex- ceptions, absolutely void; those of an infant are generally voidable only, and, if for necessaries, are binding. See Schouler, Dom. Rel. § 58. But a woman may, at the same time, labor under the double dis- ability of infancy and coverture, as where the married woman is also an infant. In such case she is not sui juris until both disabili- ties are removed, — infancy by the lapse of time, and coverture by statute or discoverture. See StuU v. Harris, 51 Ark. 294, 11 S. W. 104, 2 L. R. A. 741; Sandford v. McLean, 3 Paige (N. Y.) 117, 23 Am. Dec. 773. 175 Her contract cannot be enforced against the wife after the death of the husband (Ross v. Singleton, 1 Del. Ch. 149, 12 Am. Dec. 86), nor against the wife's administrator after her death (Shaw v. Thompson, 16 Pick. [Mass.] 198, 26 Am. Dec. 655). 176 4 Am. & Eng. Enc. Law (2d Ed.) 168; Johnson v. Sutherland, 39 Mich. 579; Waterbury v. Andrews, 67 Mich. 281, 34 N. W. 575; Loomis v. Ruck, 56 N. Y. 462. 1T7 Sweeney v. Smith, 15 B: Mon. (Ky.) 325, 61 Am. Dec. 188; Browning v. Carson, 163 Mass. 255, 39 N. E. 1037. The husband, however, as held in this case, is liable on the note. See post, § 111. 178 Story, Agency, § 6; 1 Am. & Eng. Enc. Law (2d Ed.) 942; MacFarland v. Heim, 127 Mo. 327, 29 S. W. 1030, 48 Am. St. Rep. 629; Welsbrod v. Chicago, etc., R. Co., 18 Wis. 35, 86 Am. Dec. 143. 179 Mustek V. Dodson, 76 Mo. 624, 43 Am. Rep. 780. But this rule has been changed in some states by statute. Wolcott v. Patterson, 100 Mich. 227, 58 N. W. 1006, 43 Am. St. Rep. 456. 174 HUSBAND AND WIPE. § 83 tract is for necessaries does not render it binding, since the wife's personal incapacity, and not tlie nature or subject-matter of the contract, is the determining factor in the case.^*" The fact that the husband consents to his wife's contract, or joins in it, does not render the contract valid as to the wife.^^^ Nor can the husband bind the wife by a contract made by him in her behalf. '^'^ Since a married woman's contracts are absolutely void, she cannot ratify or aftirm them after her disability has been removed by a dissolution of the coverture or by statute.^*^ Thus, a promise by a widow or divorced woman to pay a debt contracted during coverture is without consideration, and cannot be enforced. There is, however, some conflict of authority on this point.^** In equity, married women are allowed, to a greater or less extent, to make binding contracts in respect to their equitable separate estate. There is much real or appar- ent conflict of authority as to the extent of a married woman's power to make such contracts. By some courts it is held that a juarried woman has only such power to ISO Shaw V. Thompson, 16 Pick. (Mass.) 198, 26 Am. Dec. 655; Hayward v. Barker, 52 Vt. 429, 36 Am. Rep. 762. 181 Ross V. Singleton, 1 Del. Ch. 149, 12 Am. Dec. 86; Dorrance v. Scott, 3 Whart. (Pa.) 309, 31. Am. Dec. 509; Harris v. Taylor, 3 Sneed (Tenn.) 536, 67 Am. Dec. 576; Pickens' Ex'rs v. Kniseley, 36 W. Va. 794, 15 S. E. 997. See note 177, supra. 182 Burton V. Marshall, 4 Gill (Md.) 487, 45 Am. Dec. 171. 183 Austin V. Davis, 128 Ind. 472, 26 N. E. 890, 26 Am. St. Rep. 456, 12 L. R. A. 120; 15 Am. & Eng. Enc. Law (2d Ed.) 793. 184 Holloway's Assignee v. Rudy, 22 Ky. L. R. 1406, 60 S. W. 650, 53 L. R. A. 353; Porterfield v. Butler, 47 Miss. 165, 12 Am. Rep. 329; Musick V. Dodson, 76 Mo. 624, 43 Am. Rep. 780, and note; Hayward V. Barker, 52 Vt. 429, 36 Am. Rep. 762. See notes in 39 Am. St. Rep. 742, and 53 L. R. A. 366; 4 Am. & Eng. Enc. Law (2d Ed.) 168. § 83 CONSEQUENCES OP MARRIAGE. 175 bind her separate estate as is conferred upon her by the instrument creating the estate; but the prevailing view is that, as to such estate, she is practically a feme sole, and may bind it as fully as if she were unmarried, ex- cept in so far as her powers may be restricted, by the in- strument creating the estate."^ It should be noted that a married woman's contracts respecting her equitable separate estate bind only the estate. She is not po-r- sonally liable on such contracts,, and no personal judg- ment can be rendered thereon against her.^^^ In gen- eral, the equitable doctrine applies to statutory separate estates, except where the statutes establish a different doctrine.^®'' The common law as to the wife's disability to contract is now to a great extent obsolete, for in many of the states statutes provide that a married woman may con- tract to the same extent and in the same manner as if unmarried. In other states the wife's disability has been only partially removed, and in any state a married wo- man may contract only to the extent and in the cases authorized by the statutes.^*^ 185 2 Kent, Comm. 164; Schouler, Dom. Rel. §§ 130-141; 1 Bishop, Mar. V^Tomen, §? 840-879; Dobbin v. Hubbard, 17 Arli. 189, 65 Am. Dec. 425. For a full discussion of this subject, see 25 Am. & Bng. Bnc. Law (2d Ed.) 388 et seq. 186 1 Bisbop, Mar. Women, § 842; 2 Kent, Comm. 164; Bank v. Portee, 99 II. S. 325; Prentiss v. Paisley, 25 Pla. 927, 7 So. 56, 7 L. R. A. 640; Sweeney v. Smith, 15 B. Mon. (Ky.) 325, 61 Am. Dec. 188. For note on judgments against a married woman at law. In equity, and under statutes, see 55 Am. Dec. 599. 18T 25 Am. & Eng. Enc. Law (2d Ed.) 390; Williams v. Urmston, 35 Ohio St.'296, 35 Am. Rep. 611. 188 See, generally, as to the power of a married woman to contract under the various statutes, McAnally v. Alabama Insane Hospital, vio- "Wajl-- 176 HUSBAND AND WIFE. § 84 In any case, before a married woman can be held lia- ble on her contract, two things must be established: First, that she made the contract, and, second, that it was such a contract as she had power to make.^®® § 84. Capacity of wife to acquire or hold property. At common law a married woman may purchase real estate even without her husband^s^congent, and the con- veyance is good unless he dissents thereto, as he may do; and the wife also, after his death, may disaffirm it.^^" So, also, a married woman may acquire property by de- vise.^"^ Property so acquired, whether by deed or will, may be held by her, subject, of course, to the husband's mai'ital rights, unless these are expressly or by necessary 109 Ala. 109, 19 So. 492, 55 Am. St. Rep. 923; Watters v. "Wagley, 53 Ark. 509, 14 S. W. 774, 22 Am. St. Rep. 232; Snell v. Snell, 123 111. 403, 14 N. E. 684, 5 Am. St. Rep. 526; Carstens v. Hanselman, 61 Micli. 426, 28 N. "W. 159, 1 Am. St. Rep. 606; Speier v. Opfer, 73 Mich. 35, 40 N. "W. 909, 16 Am. St. Rep. 556; Naylor v. Miniock, 96 Mich. 182, 55 N. W. 664, 35 Am. St. Rep. 595; Porter v. Haley, 55 Miss. 66, 30 Am. Rep. 502; MacFarland v. Heim, 127 Mo. 327, 29 S. W. 1030, 48 Am. St. Rep. 629 ; Thompson v. Taylor, 66 N. J. Law, 253, 49 Atl. 544,. 54 L. R. A. 585; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 34 Am. St. Rep. 473; First Nat. Bank v. Shaw, 109 Tenn. 237, 70 S. W. 807, 97 Am. St. Rep. 840; Carey v. Burruss, 20 W. Va. 571, 43 Am. Rep. 790; notes in 99 Am. Dec. 598, and 7 L. R. A. 640. As to the power of a married woman to bind her separate estate by contract, particularly with reference to the creation of mechanics' liens thereon, see Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 82 N. W. 112, 83 Am. St. Rep. 512, and note. 180 Brown v. Thomson, 31 S. C. 436, 10 S. E. 95, 17 Am. St. Rep. 40. 100 2 Bl. Comm. 292; 2 Kent, Comm. 150; Schouler, Dom. Rel. § 92; Harmon v. James, 7 Smedes & M. (Miss.) Ill, 45 Am. Dec. 296; note 57 Am. Dec. 194. 1914 Kent, Comm. 506; Rood, Wills, § 193. § 84 CONSEQUENCES OP MARRIAGE. 177 implication excluded; that is, unless the property is given to the wife as he'r equitable separate estate. A wife may also acquire personal property of any kind in the usual raodes, though title thereto vests at once in the husband if the property is a chose in possession, or he has a right to reduce it to possession if it is a chose in action. In the case of personalty, though she may receive, she cannot hold, the property as against her hus- band."2 Under modern statutes, a married woman may, in most states, acquire and hold both real and personal property as if sole.^^* 192 1 Bishop, Mar. Women, § 699. At common law, a married woman had capacity to take real or personal estate by grant, gift, or other conveyance, from any person except her husband; but as to real property, the husband, where no trust was created, had an estate during the coverture, and during his life, if there was issue of the marriage; and the wife's personal estate, in the absence of a trust, -vested in him absolutely when re- duced to his possession. Knapp v. Smith, 27 N. Y. 277. 183 See, generally, as to the power of a married woman, under statutes, to acquire and hold property, Munger v. Baldridge, 41 Kan. 236, 21 Pac. 159, 13 Am. St. Rep. 273; Kerr v. Urie, 86 Md. 72, 37 Atl. 789, 63 Am. St. Rep. 493; Blake v. Blackley, 109 N. C. 257, 13 S. E. 786, 26 Am. St. Rep. 566. In this connection it should be noted that, as a rule, husband and wife cannot hold property adversely to each other, the possession of the one being the possession of the other (1 Am. & Eng. Bnc. Law [2d Ed.] 820; Bell v. Bell, 37 Ala. 536, 79 Am. Dec. 73; Gafford v. Strauss, 89 Ala. 283, 7 So. 248, 18 Am. St. Rep. Ill; Meacham v. Bunting, 156 111. 586, 41 N. B. 175, 47 Am. St. Rep. 239; Bader v. Dyer, 106 Iowa, 715, 77 N. W. 469, 68 Am. St. Rep. 332); but the husband's possession of the wife's separate estate may become ad- verse after her death (Lide v. Park, 135 Ala. 131, 33 So. 175, 93 Am. St. Rep. 17). Long, D. R.— 12. 178 HUSBAND AND WIFE. § 85 § 85. Conveyances by or to wife. A husband may, by his sole deed, convey his own in- terest in his wife's land,^^* but at common law the wife had no power, either alone or jointly with her husband, to convey her own interest by deed. Her deed was abso- lutely void.^^^ The only ways by which she could con- 19*2 Kent, Comm. 133; Sehouler, Dom. Rel. § 90; 1 Bishop, Mar. Women, §§ 568, 586. See, also, Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245. A conveyance of the wife's lands by the husband by his sole deed ■will, at common law, pass the entire beneficial interest in the land during coverture, and, if the requisites for curtesy exist, for the husband's life if he survives the wife. In other words, the husband may convey or incumber his entire interest, or it may be taken for his debts; but his conveyance cannot affect the interest of the wife or her heirs after the husband's death. 1S5 2 Kent, Comm. 150; 1 Bishop, Mar. Women, § 586; Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245. In Albany F. Ins. Co. v. Bay, 4 N. Y. 9, the subject of convey- ances by married women at common law and under colonial usages and laws was extensively discussed by Jewett, J., who, with refer- ence to the rule of the common law, said: "By the common law, a married woman is disabled from alienating her lands by deed, either by uniting with her husband, or by executing it alone. The only mode in which she had power to transfer her title or interest in real estate was by levying a fine or suffering a common recovery, her deed being void. [Citing authorities.] The husband, as a gen- eral rule, was required to be a party with the wife in levying a fine for the conveyance of her lands. * * * The disability of a mar- ried woman to convey her lands by deed was not supposed to arise from want of reason, but, because by her marriage, she was placed under the power and protection of her husband; and it was upon that ground that the separate examination of such woman on a fine was good, because, when delivered from her husband, her judgment was supposed to be free. * * * The great object which the com- mon law arrived at was to ascertain whether the wife, in the transfer of her estate or interest In real property, acted under fear or com- pulsion of her husband. In a conveyance by fine and recovery, the wife was privately examined by the court as to her voluntary con- § 85 CONSEQUENCES OP MARRIAGE. 179 vey her land was by fine or common recovery.^®® In this country, fines and recoveries seem to have been occa- sionally, though rarely, resorted to,^^'' and during the colonial period a usage existed in some of the colonies by which, in lieu of fines and recoveries, a married wo- man might convey her land by a deed executed jointly with her husband, such deeds being usually acknowl- edged.^®^ Fines and recoveries were abolished in Eng- , land by statute in 1833, and married women were em- powered, with the concurrence of their husbands, to con- vey their lands by deeds acknowledged as prescribed by the statute.^®® Substantially this mode had already, as stated above, been for many years in vogue in this coun- try, either as a matter of usage, or under colonial or later statutes. In all of the older states statutes were enacted at an early period empowering a married wo- man, usually in conjunction with her husband, to con- vey her land by a deed privately acknowledged by her.^"" By such a conveyance the wife's title- passes, but she is not bound by the covenants in the deed.^°^ Under sent, which removed the general presumption of the law that she was acting under the compulsion of her husband." 198 See authorities cited in note immediately preceding. See, also, 2 Bl. Comm. 348. i»T 1 Bishop, Mar. Women, § 587. 198 1 Bishop, Mar. Women, § 588; Fowler v. Shearer, 7 Mass. 14; Meriam v. Harsen, 2 Barb. Ch. (N. Y.) 232; Davey v. Turner, 1 Dall. (Pa.) 11; Lloyd v. Taylor, 1 Dall. (Pa.) 17. 199 3 & 4 Wm. IV. c. 74. 200 Scarborough v. Watkins, 9 B. Mon. (Ky.) 540, 50 Am. Dec. 528. As to the acknowledgment of deeds by married women, see 1 Am. & Eng. Enc. Law (2d Ed.) 512-523. For a summary of statutory pro- visions, see note in 99 Am. Dec. 602. 180 HUSBAND AND WIFE. § 86- more recent statutes a married woman may in most states convey as if sole.^°^ As we h-ave already seen, a conveyance to a married woman is valid, subject to the dissent of her husband, and to her own dissent after his death.^"^ Under mod- ern statutes, a married woman may take property by conveyance as if sole. § 86. Wills of married women. The power to dispose of real property by will did not exist at common law, and hence could be exercised only when conferred by statute. A married woman, there- fore, can dispose of real estate by will only where there is a statute giving her this power.^°* 2012 Kent, Comm. 168; Schouler, Dom. Rel. § 95; 8 Am. & Eng. Bnc. Law (2d Ed.) 163; Wadleigh v. Glines, 6 N. H. 17, 23 Am. Dec> 705; Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245. See cases cited in note 221, infra. 202 The subject of conveyances by married women being regulated wholly by statute, no detailed treatment will be attempted here. See, generally, Brewster, Convfeyancing, §§ 349-377; note in 99 Am. Dec. 602. The power being wholly statutory, any deed or other instrument purporting to convey or incumber the land of a married woman, but not executed according to the statute, is absolutely void. Cook v. Walling, 117 Ind. 9, 19 N. B. 532, 10 Am. St. Rep. 17. Under' statutes, a married woman is bound by the covenants in her deed as if sole. Note in 99 Am. Dec. 608. Under some statutes the husband is required to join with the wife in a conveyance of the wife's separate estate, the object of such a provision being to afford her his protection against imposition and' fraud, and to aid her by his advice and counsel. Rico v. Branden- stein, 98 Cal. 465, 33 Pac. 480, 35 Am. St. Rep. 192. See Cook v. Walling, 117 Ind. 9, 19 N. E. 532, 10 Am. St. Rep. 17; Peter v. Byrne, 175 Mo. 233, 75 S. W. 443, 97 Am. St. Rep. 576; and mono- graphic note in 97 Am. St. Rep. 584. 208 See note 190, supra. 204 2 Kent, Comm. 170; 2 Bishop, Mar. "Women, §§ 534-536; Rood,. § 86 CONSEQUENCES OF MARRIAGE. 181] Wills of personalty were known to the ancient com- mon law, biit it was held that a married woman could not make such a will unless her husband consented thereto. It is perhaps true that marriage does not take away her testamentary power as to personalty, but, by transferring her personal property to her husband, it necessarily renders her will inoperative. If, however,, he waives his right to the property, and consents to her disposing of it by will, the will is valid and operative.! It seems that no particular form of consent is neces- sary ; it may be by parol or in writing, or implied from circumstances. It must be a consent to the particular will, and not a mere general consent that the wife may make a will. It seems that the consent, unless founded upon a valuable consideration, is revocable until thej will is probated.^"^ ' , A married woman may dispose of her equitable sepa- rate estate by will when so authorized, or unless re- strained, by the instrument creating the estate. ^°^ So,' also, even without special statutory authority, she may , make a will in execution of a power of appointment.^''^i The" former law on the subject of wills of married wo- "Wills, §§ 145, 146. The right to dispose of the legal title to real' estate by will did not exist in England until 1540, when it was granted by the Statute of Wills (32 Hen. VIII. c. 1). Married wo- men were expressly excepted from the operation of this statute by the ejaplanatory statute of 34 & 35 Hen. VIII. c. 5. 205 2 Bishop, Mar. Women, §§ 537-539; Gardner, Wills, 93; Rood, Wills, § 144; Cutter v. Butler, 25 N. H. 343, 57 Am. Dec. 330, and note. 206 2 Bishop, Mar. Women, § 540; Rood, Wills, § 150. 207 2 Kent, Cofnm. 171; 2 Bishop, Mar. Women, §§ 544-546; Gard- ner, Wills, 95. 182 HUSBAND AND WIFE. § 87 men is now practically obsolete, for modern statutes generally empower married women to make wills dis- posing of both real and personal property as if sole.^"* At common law the marriage of a testatrix revoked her will, and in some states it is so provided by statute. There is a conflict of authority as to whether statutes giving married women full testamentary power im- pliedly abrogate the common-law rule as to revocation, but, on principle, it seems that they should have this effect, since they remove the reason of the rule.^"^ § 87. Capacity of wife to act as agent or fiduciary. At common law, a married woman may act as the agent of her husband,^^° or of a third person.^^^ It is not necessary for a person to be sui juris, or capable of 208 Rood, wills, § 151; Gardner, Wills, 96. See the various state statutes. 209 See Rood, Wills, §§ 372-374; Gardner, Wills, 281, 285; Roane v. Hollingshead, 76 Md. 369, 25 Atl. 307, 35 Am. St. Rep. 438; Kelly v. Stevenson, 85 Minn. 247, 88 N. W. 739, 89 Am. St. Rep. 545; In re Lyon's Will, 96 Wis. 339, 71 N. W. 362, 65 Am. St. Rep. 52; note in 28 Am. St. Rep. 358. At common law, marriage and the birth of a child revoked a man's will; and under some of the statutes marriage alone has this effect. Rood, Wills, §§ 375-380; Gardner, Wills, 281; Hudnall v. Ham, 183 111. 486, 56 N. E. 172, 75 Am. St. R'ep. 124; and see, generally, the statutes. 210 See post, § 99. 211 1 Bishop, Mar. Women, § 701. It is doubtful whether, at com- mon law, a married woman might act as agent for a third person against the will of her husband, at least where her so acting would Interfere with her duties as wife. Story, Agency, § 7. Where the common-law disabilities are removed by statute, and women are allowed to practice law, a married woman may be an attorney at law. In re Ricker, 66 N. H. 207, 29 Atl. 559, 24 L. R. A. 740. § 88 CONSEQUENCES OP MARRIAG'B. 183 acting for himself or herself, in order to be able to act as the agent of another.^^^ A married woman may be a trustee, but her husband is personally liable for any breaches of trust she may commit, and hence she cannot act in the administration of the trust without his concurrence or consent.^^^ So, also, she may, at common law, execute a power without the concurrence of her husband, whether the power was given to her while sole or married, and she may execute it in favor of her husband.^^* A married woman may be executrix or administratrix, but cannot act as such without her husband's consent.^^^ At common law, the marriage of an executrix or admin- istratrix does not extinguish her powers as such, but her husband acts for her in her right.^^® "^♦T^'A^^ § 88. Suits by or against married women. At common law, since a married woman has no sepa- rate legal existence, she cannot sue or be sued alone, but all suits in which she is interested, either as plaintiff or defendant, have to be brought by or against the hus- 212 Story, Agency, § 7. 213 Hill, Trustees, 304; 28 Am. & Eng. Enc. Law (2d Ed.) 956; Trust Co. V. Sedgwick, 97 U. S. 304; Gridley v. Wynant, 23 How. (U. S.) 500. A married woman may be a guardian. Palmer v. Oakley, 2 Doug. (Mich.) 433, 47 Am. Dec. 41. 21*4 Kent, Comm. 324; Stearns v. Praleigh, 39 Fla. 603, 23 So. 18, 39 L. R. A. 705; Thompson v. Murray, 2 Hill, Ch. (S. C.) 204, 48 Am. Dec. 68. 215 11 Am. & Eng. Enc. Law (2d Ed.) 752, 780; Schouler, Dom. Rel. § 86. 216 Schouler, Dom. Rel. § 86; 11 Am. & Eng. Enc. Law (2d Ed.) 814; Gates v. Whetstone, 8 S. C. 244, 28 Am. Rep. 284. 184 HUSBAND AND WIFE. J 89 band and wife jointly,^^'^ except, of course, in tlie case of a suit by either consort against the other.^^® In gen- eral, the rule in equity is the same as at common law.^" Under the statutes creating statutory separate estates, the wife, in most of the states, may sue or be sued alone respecting her separate estate, and, at present, in many if not in most of the states, a married woman is per- mitted by statute to sue and be sued in all respects as if sole.220 § 89. Estoppel of married women. Since the contracts of a married woman are abso- lutely void at common law, they cannot, in general, op- erate as an estoppel against her. Thus, she is not ordi- narily bound by way of estoppel by the covenants or re- citals contained in her deed, although the deed is per- mitted to operate so far as to pass her title to the prop- erty conveyed.^^^ She may, however, become estopped 237 2 Chitty, Pleadings (16th Am. Ed.) 147-149, notes. 21S See post, § 101. 219 1 Bishop, Mar. Women, § 90; 10 Enc. PI. & Pr. 223. 220 10 Bno. PI. & Pr. 191. See Harvard Pub. Co. v. Benjamin, 84 Md. 333, 35 Atl. 930, 57 Am. St. Rep. 402; and see the local statutes. 221 Curry v. American Freehold Land Mortgage Co., 107 Ala. 429, 18 So. 328, 54 Am. St. Rep. 105; Cockrill v. Hutchinson, 135 Mo. 67, 36 S. W. 375, 58 Am. St. Rep. 564; Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167, 8 Am. Deo. 378; Wadkins v. Watson, 86 Tex. 194, 24 S. W. 385, 22 L. R. A. 729. See, contra, Nash y. Spofford, 10 Mete. (Mass.) 192; Hill V. West, 8 Ohio, 222, 31 Am. Dec. 442. See notes in 43 Am. Dec. 426, and 22 L. R. A. 779. A married woman can be divested of her title to real estate only in the mode pointed out by the statute. She is not estopped, by a void conveyance, to assert title to her realty, unless guilty of fraud. Curry v. American Freehold Land Mortg. Co., 107 Ala. 429, 18 So. g 89 CONSEQUENCES OP MARRIAGE. 185 by her conduct in certain cases, ^^^ as by her fraudulent misrepresentations or misconduct. Thus, if a married woman allows her property to stand in her husband's name, and knowingly permits him to procure credit on the faith of his ownership of the property, she will be estopped afterwards to assert her title against creditors so deceived.^^^ Under the modern statutes removing the disabilities of married women, a married woman may become estop- ped, so far as such disabilities are removed, in the same manner and to the same extent as any other person.^^* 328, 54 Am. St. Rep. 105; Cook v. Walling, 117 Ind. 9, 19 N. E. 532, 10 Am. St. Rep. 17; Louisville, St. L. & T. Ry. Co. v. Stephens, 96 Ky. 401, 29 S. W. 14, 49 Am. St. Rep. 303; Smith v. Ingram, 130 N. C. 100, 40 S. E. 984, 61 L. R. A. 878; Id., 132 N. C. 959, 44 S. E. 643, 95 Am. St. Rep. 680; Daniel v. Mason, 90 Tex. 240, 38 S. W. 161, 59 Am. St. Rep. 815; Central Land Co. v. Laidley, 32 W. Va. 134, 9 S. E. 61, 25 Am. St. Rep. 797, 3 L. R. A. 826. 222 See, generally, Reis v. Lawrence, 63 Cal. 129, 49 Am. Rep. 83; Temples v. Equitable Mortg. Co., 100 Ga. 503, 28 S. E. 232, 62 Am. St. Rep. 326; Cook v. Walling, 117 Ind. 9, 19 N. E. 532, 10 Am. St. Rep. 17; McDanell v. Landrum, 87 Ky. 404, 9 S. W. 223, 12 Am. St. Rep. 500; note in 58 Am. Dec. 114. A married woman is estopped from interposing her inability to contract in bar of the consequences of her own fraud. Newman v. Moore, 94 Ky. 147, 21 S. W. 759, 42 Am. St. Rep. 343. 223 Driggs & Co.'s Bank v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78; Cravens v. Booth, 8 Tex. 243, 58 Am. Dec. 112. See, also, De Berry v. Wheeler, 128 Mo. 84, 30 S. W. 338, 49 Am. St. Rep. 538. 224 See Osborne v. Cooper, 113 Ala. 405, 21 So. 320, 59 Am. St. Rep. 117; Lane v. Schlemmer, 114 Ind. 296, 15 N. E. 454, 5 Am. St. Rep. 621; Long v. Crosson, 119 Ind. 3, 21 N. E. 450, 4 L. R. A. 783; Cook V. Walling, 117 Ind. 9, 19 N. E. 532, 10 Am. St. Rep. 17, 2 L. R. A. 769; Trimble v. State, 145 Ind. 154, 44 N. E. 260, 57 Am. St. Rep. 163; Dobbin v. Cordiner, 41 Minn. 165, 42 N. W. 870, 4 L. R. A. 333; Crenshaw v. Julian, 26 S. C. 183, 2 S. E. 133, 4 Am. St. Rep. 719; Brown v. Thomson, 31 S. C. 436, 10 S. E. 95, 17 Am. St. Rep. 40; note in 83 Am. St. Rep. 520. 186 HUSBAND AND WIFE. ^ 90 The subject of estoppel as it affects married women now presents, therefore, no peculiarities calling for extended discussion in the present work.^^^ § 90. When wife may act as feme sole. At common law, in certain cases, from the necessity of the case, a married woman may act as if sole. Thus, she may do so where her husband is an alien and has never been in the realm where the wife resides, or where he is civilly dead. According to some of the authorities, mere separation or desertion by the husband will not have this effect, in the absence of statutes so providing. Other courts hold, and it would seem with better rea- son, that where the husband repudiates his marital obli- gations and abandons his wife, going into another state without making provision for her support, she may con- tract and sue and be sued as if sole. On principle, such abandonment alone, without removal to another state, ought to be sufficient to have this effect, but the weight of authority seems to be to the contrary.^^^ 225 For a full discussion of the law of estoppel as applied to mar- ried women, see 15 Am. & Eng. Enc. Law (2d Ed.) 795; 2 Bishop, Mar. Women, §§ 484-495; notes In 49 Am. Rep. 87, and 57 Am. St. Rep. 169. 226 See, generally, 15 Am. & Eng. Enc. Law (2d Ed.) 807; 4 Am. & Eng. Enc. Law (2d Ed.) 168; Arthur v. Broadnax, 3 Ala. 557, 37 Am. Dec. 707; Mead v. Hughes, 15 Ala. 123, 50 Am. Dec. 123; Rogers v. Phillips, 8 Ark. 366, 47 Am. Dec. 727; Love v. Moynehan, 16 111. 277, 63 Am. Dec. 306; Smith v. Silence, 4 Iowa, 137, 66 Am. Dec. 137; Wolf V. Bauereis, 72 Md. 481, 19 Atl. 1045, 8 L. R. A. 680; Gregory V. Paul, 15 Mass. 31; Carstens v. Hanselman, 61 Mich. 426, 28 N. W. 159, 1 Am. St. Rep. 606; Allen v. Minnesota Loan & Trust Co., 68 Minn. 8, 70 N. W. 800, 64 Am. St. Rep. 446; Starrett v. Wynn, 17 Serg. & R. (Pa.) 130, 17 Am. Dec. 654; Wright v. Hays, 10 Tex. 130, § 91 CONSEQUENCES OF MARRIAGE. 187 A divorce a vinculo matrimonii removes all the dis- abilities of coverture and renders the wife once more a feme sole.^'^'' The authorities are conflicting as to whether a divorce a mensa et thoro renders the wife competent to contract and to sue and be sued. On prin- ciple, it seems that it should have this effect, and it has been so held,^^* but there is-authority to the contrary.^^' The effect of the insanity of the husband upon the wife's disabilities is doubtful, the authorities on the sub- ject being in conflict. It would seem, on principle, that the wife of an insane man should be considered the head of the family, and clothed with such powers as the ne- cessity of the case may demand.^^" The questions considered in this section are now of little importance in consequence of the statutes remov- ing the common-law disabilities of married women. § 91. Wife as sole trader — Partnership. At common law, since a married woman cannot con- tract, she cannot engage in business on her own ac- count.^^^ She was permitted to do so, however, by the 60 Am. Dec. 200; Robinson v. Reynolds, 1 Aik. (Vt.) 174, 15 Am. Dec. 673; Hayward v. Barker, 52 Vt. 429, 36 Am. Rep. 762; Buford v. Adair, 43 W. Va. 211, 27 S. E.'260, 64 Am. St. Rep. 854; notes in 37 Am. Dec. 709, 36 Am. Rep. 764, and 64 Am. St. Rep. 861. 22T Chase v. Chase, 6 Gray (Mass.) 157. 228 Dean v. Richmond, 5 Pick. (Mass.) 461; Pierce v. Burnham, 4 Uetc. (Mass.) 303; 2 Kent, Comm. 157. 229 Lewis V. Lee, 3 Barn. & C. 291, 10 B. C. L. 84. 230 See, on this subject, McAnally v. Alabama Insane Hospital, 109 Ala. 109, 19 So. 492, 34 L. R. A. 223, 55 Am. St. Rep. 923; note in 34 L. R. A. 223. See, also, Shaw v. Thompson, 16 Pick. (Mass.) 198, 26 Am. Dec. 655; Robinson v. Frost, 54 Vt. 105, 41 Am. Rep. 835. 231 See ante, § 83, and authorities cited in notes immediately fol- lowing. 1.88 HUSBAND AND WIFE. § 91 custom of Londoii,^^^ but this custom seems never to have existed in the United States^^^ except in South Carolina. ^^* In equity, at least with the consent of her husband, she may act as a sole trader with reference to her equitable separate estate to the extent of her power over it.^^^ In many if not most of the states, statutes have been passed authorizing a married woman to carry on busi- ness as a sole trader in respect to her own property, free from the control or claims of her husband or of his cred- itors, with substantially the same privileges, rights, and liabilities as a feme sole. In some states, such power is conferred upon a married woman only in special cir- cumstances, as where she is abandoned or deserted by her husband, or is living separate and apart from him, or where, from drunkenness, profligacy, or other cause, he fails to support her.^^® As a sole trader, a married woman may in some states 232 2 Bishop, Mar. Women, § 528. See Beard v. Webb, 2 Bos. & P. 93; Petty v. Anderson, 2 Car. & P. 38, 12 E. C. L. 17. 233 Jacobs V. Featherstone, 6 Watts & S. (Pa.) 346; Carey v. Bur- russ, 20 W. Va. 571, 43 Am. Rep. 790. 234 15 Am. & Eng. Enc. Law (2d Ed.) 795, and cases cited. 235 Sohouler, Dom. Rel. § 164; Partridge v. Stocker, 36 Vt. 108, 84 Am. Dec. 664; Penn v. Whitehead, 17 Grat. (Va.) 503, 94 Am. Dec. 478. 236 See Carse v. Reticker, 95 Iowa, 25, 63 N. W. 461, 58 Am. St. Rep. 421; Tillman v. Shaokleton, 15 Mich. 447, 93 Am. Dee. 198; Noel V. Kinney, 106 N. Y. 74, 12 N. B. 351, 60 Am. Rep. 423; Nash v. Mitchell, 71 N. Y. 199, 27 Am. Rep. 38. See, generally, on the power of a married woman to act as a sole trader, 15 Am. & Eng. Enc. Law (2d Ed.) 795; 25 Am. & Eng. Enc. Law (2d Ed.) 378; Schouler, Dom. Rel. §§ 163-170; note in 84 Am. Dec. 673. § 92 CONSEQUENCES OF MARRIAGE. 189 enter into a partnership with a third person,^^^ though not, by the Aveight of authority, with her husband, un- less clearly permitted by the statute.^^^ § 92. Conflict of laws as to wife's disabilities. A married woman domiciled in a certain state may make therein a contract to be performed and enforced in that state, and in such case the validity of the con- tract will obviously be determined by the law of that state, and no question of a conflict of laws can arise.^^'' But the facts are not always so simple. A woman domi- ciled in one state may make in that state a contract to be performed in another state ; or she may make the con- tract in another state to be performed in the state of 237 Deere, Wells & Co. v. Bonne, 108 Iowa, 281, 79 N. W. 59, 75 Am. St. Rep. 254; Vail v. Winterstein, 94 Mich. 230, 53 N. W. 932, 34 Am. St. Rep. 334, 18 L. R. A. 515; notes in 31 Am. St. Rep. 934, and 34 Am. St. Rep. 339. A married woman cannot form a partnership with a third person where her disability to contract has not been removed. Carey v. Burruss, 20 W. Va. 571, 43 Am. Rep. 790. 238 See 25 Am. & Eng. Enc. Law (2d Ed.) 379; notes in 2 L. R. A. 343, 9 L. R. A. 593, 16 L. R. A. 526, and 31 Am. St. Rep. 935. That husband and wife cannot be partners, see Gilkerson-Sloss Commis- sion Co. T. Salinger, 56 Ark. 294, 19 S. W. 747, 35 Am. St. Rep. 105, 16 L. R. A. 526; Haas v. Shaw, 91 Ind. 384, 46 Am. Rep. 607; Rag- gett V. Hurley, 91 Me. 442, 40 Atl. 561, 41 L. R. A. 362; Artman v. Ferguson, 73 Mich. 146, 40 N. W. 907, 16 Am. St. Rep. 572, 2 L. R. A. 343; Board of Trade v. Hayden, 4 Wash. 263, 30 Pac. 87, 32 Pac. 224, 31 Am. St. Rep. 919, 16 L. R. A. 530; Fuller v. McHenry, 83 Wis. 573, 53 N. W. 896, 18 L. R. A. 512. That they may be partners, see Burney v. Savannah Grocery Co., 98 Ga. 711, 25 S. E. 915, 58 Am. St. Rep. 342; Hoaglin v. Henderson, 119 Iowa, 720, 94 N. W. 247, 61 L. R. A. 756; Suau v. Caffe, 122 N. Y. 308, 25 N. E. 488, 9 L. R. A. 593. 239 See Freeman's Appeal, 68 Conn. 533, 37 Atl. 420, 37 L. R. A. 452; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251. 190 HUSBAND AND WIFE. § 92 her domicile, or in a third state. Again, the enforce- ment of the contract may be sought, that is, suit may be brought upon it, in a different state from that of the domicile, or from that in which the contract was made or was to be performed. If, then, the laws of these sev- eral states as to the power of a married woman to con- tract be different, she being empowered to contract in one state, but not in another, it becomes a very -impor- tant matter to determine by what law her contract is to be governed. There is some conflict among the authori- ties,^*" but the general rule is pretty well settled that the validity of the contract is to be determined by the law of the state in which it was made, and, if -valid there, it will be enforced everywhere, although not valid by the law of the domicile, or of the place of performance, or of the forum ; and, conversely, if void where made, it is void everywhere.^*^ Thus, the contract will be enforced if valid where made, although not valid by the law of the forum, provided its enforcement would not contra- vene some rule of public policy of the forum state.^*^ 2*0 For exhaustive monographic notes on the suhject, see 57 L. R. A. 513, and 85 Am. St. Rep. 552. See, also, note in 46 Am. St. Rep. 448. 2«Miniken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; State Bank V. Maxson, 123 Mich. 250, 82 N. W. 31, 81 Am. St. Rep. 196; Thomp- son V. Taylor, 66 N. J. Law, 253, 49 Atl. 544, 54 L. R. A. 585, 88 Am. St. Rep. 485; Union Nat. Bank v. Chapman, 169 N. Y. 538, 62 N. E. 672, 88 Am. St. Rep. 614, 57 L. R. A. 513. In Brown v. Dalton, 105 Ky. 669, 49 S. W. 443, 88 Am. St. Rep. 325, it was held that a contract between a husband and wife, made in Kentucky, in which state they were domiciled, by which he con- veyed to her land lying in Virginia, and she assumed a debt of his there payable, would not be enforced in Kentucky, by the law of which such a contract was void, though valid in Virginia. 212 Baer Brothers v. Terry, 108 La. 597, 32 So. 353, 92 Am. St. Rep. § 92 CONSEQUENCES OF MARRIAGE. 191 Where the married woman's domicile is in some other state than that of the forum, there will ordinarily be no such rule of policy ; but where the state of the forum is also the state of domicile, and the contract sued on is void according to a settled policy of that state, adopted for the protection of its citizens, it will not be enforced there, though valid where made.^*^ But where there is no such rule of policy, the contract will be enforced, although both forum and domicile are in the same state, by the law of which the contract is void.^** Matters relating to the remedy, as distinguished from the validity of the contract, such as the form of action, the mode of procedure, the statute of limitations, etc., are to be determined by the law of the forum.^*^ 394; State Bank v. Maxson, 123 Mich. 250, 82 N. W. 31, 81 Am. St. Rep. 196; Wright v. Remington, 41 N. J. Law, 51, 32 Am. Rep. 180; Thompson v. Taylor, 66 N. J. Law, 253, 49 Atl. 544, 54 L. R. A. 585, 88 Am. St. Rep. 485; Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 10 Am. St. Rep. 690, 3 L. R. A. 214. 243 Bank of Louisiana v. Williams, 46 Miss. 618, 12 Am. Rep. 319; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 34 Am. St. Rep. 473; First Nat. Bank v. Shaw, 109 Tenn. 237, 70 S. W. 807, 59 L. R. A. 498, 97 Am.-St. Rep. 840. See Minor, Confl. Laws, § 72. In this sec- tion the author makes a distinction between the policy of those states in which the wife's disability is total or general, and those in which it is partial only. In the former class of states the con- tract made in another state will not be enforced in the domicile state, while in the latter class it will be so enforced. The cases cited in this note and the note immediately following illustrate this prin- ciple. 244MillIkin v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; Thompson v, Taylor, 66 N. J. Law, 253, 49 Atl. 544, 54 L. R. A. 585, 88 Am. St. Rep. 485, reversing 65 N. J. Law, 107, 46 Atl. 567. 245 Ruhe V. Buck, 124 Mo. 178, 27 S. W. 412, 46 Am. St. Rep. 439, 25 L. R. A. 178; Evans v. Cleary, 125 Pa. 204, 17 Atl. 440, 11 Am. St Rep. 886; note in 46 Am. St. Rep. 452. 192 HUSBAND AND WIFE. § 93 In some cases it has been held that the law of the place where the contract is to" be performed will govern.^*® Contracts affecting the title to real property, such as conveyances and the like, will be governed by the law of the state in which the land lies.^*'' § 93. Mutual disqualification as witnesses. At common law, husband and wife are incompetent as witnesses for or against each other. Neither can tes- tify in a suit in which the other is interested. The prin- cipal reasons for this disability are (1) the legal unity 2« Baum V. Bircliall, 150 Pa. 164, 24 Atl. 620, 30 Am. St. Rep. 797. See, also. Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251. In Union Nat. Bank v. Chapman, 169 N. Y. 538, 62 N. E. 672, 88 Am. St. Rep. 614, 57 L. R. A. 513, the general principles as to the conflict of laws in matters of contract were summed up as follows: (1) All matters hearing upon the execution, the interpretation, and the validity of contracfa, including the capacity of the parties to contract, are de- termined by the law of the place where the contract is made. (2) All matters connected with its performance, including presentation, notice, demand, etc., are regulated by the law of the place where the contract, by its terms, is to be performed. (3) All matters respect- ing the remedy to be pursued, including the bringing of suits and the service of process, depend upon the law of the place where the action is brought. 217 Walling V. Christian & C. Grocery Co., 41 Fla. 479, 27 So. 46, 47 L. R. A. 608; Rush v. Landers, 107 La. 549, 32 So. 95, 57 L. R. A. 353; Smith v. Ingram, 130 N. C. 100, 40 S. B. 984, 61 L. R. A. 878; Id., 132 N. C. 959, 44 S. E. 643, 95 Am. St. Rep. 680; Baum v. Birchall, 150 Pa. 164, 24 Atl. 620, 30 Am. St. Rep. 797. But contracts (not conveyances) relating to realty may be gov- erned by the lex loci contractus. Poison v. Stewart, 167 Mass. 211, 45 N. E. 737, 36 L. R. A. 771, 57 Am. St. Rep. 452. So, also, real property situated in one state may be taken for a debt of a married woman contracted in another state, If, by the law of the state where the contract was made, though not by that of the state in which the land lies, real property may be so taken. See State Bank v. Maxson, 123 Mich. 250, 82 N. W. 31, 81 Am. St. Rep. 196. § 93 CONSEQUENCES OP MARRIAGE. I93 of husband and wife, in consequence of which the testi- mony of either would be for or against himself or her- self, in violation of the common-law rule that no one is allowed to testify in his own cause, nor required to tes- tify in incrimination of himself; and (2) the rule of public policy which prohibits the disclosure of matters learned in matrimonial confidence.^** The general rule applies in criminal as well as in civil cases. Upon the trial of either husband or wife on a criminal charge, the other spouse is not a competent witness to prove the offense charged.^*^ The termination of the coverture by death or divorce does not remove the disability to testify either as to mat- ters learned in matrimonial confidence,^^" or, it is gen- erally held, as to any matters occurring during cover- ture.2" The general rule was subject to some exceptions and limitations, even at common law. The most conspicuous exception was that in a criminal prosecution of either spouse for an offense committed upon the person of the other, the latter is a competent witness against the ac- cused. In this case the policy of the law upon which 248Schouler, Dom. Rel. § 53; 1 Greenl. Bv. (Wigmore's Ed.) § 333c et seq.; Com. v. Sapp, 90 Ky. B80, 14 S. W. 834, 29 Am. St. Rep. 405, Woodrufe, Cas. 203; De Farges v. Ryland, 87 Va. 404, 12 S. B. 805, 24 Am. St. Rep. 659; notes In 24 Am. St. Rep. 663, and 29 Am. St. Rep. 411. 249 1 Greenl. Ev. (Wigmore's Ed.) § 334. 250 1 Greenl. Bv. (Wigmore's Ed.) § 337. 251 Rea V. Tucker, 51 111. 110, 99 Am. Dec. 539 ; Hanselman v. Dovel, 102 Mich. 505, 60 N. W. 978, 47 Am. St. Rep. 557; State v. Kodat, 158 Mo. 125, 59 S. W. 73, 81 Am. St. Rep. 292; Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255. Long, D. R.— 13. 194 HUSBAND AND WIFE. § 93 the general rule is founded is overcome by the superior policy, which demands the punishment of crime which, but for this exception, might go unpunished.^®^ Modern statutes have greatly changed the common- law rules as to the competency of husband and wife as witnesses. These changes have been the result, for the most part, of the dropping of the legal fiction of the unity of husband and wife, and the abrogation of the general rule of the common law disqualifying a witness because of interest. The statutes vary considerably in terms and in the extent to which the disqualification is removed. The general tendency of the statutes is to- wards the removal of the disqualification in all cases in which it depended upon the supposed identity of per- son of husband and wife, and their consequent interest in the suit. The rule prohibiting the disclosure of mat- ters learned in matrimonial confidence still remains in force, the statutes being, on this point, simply declara- tory of the common law.^^* 252Greenl. Bv. (Wigmore's Ed.) § 343; Com. v. Sapp, 90 Ky. 580, 14 S. W. 834, 29 Am. St. Rep. 405, Woodruff, Cas. 203. 253 See, generally, People v. Curiale, 137 Cal. 534, 70 Pac. 468, 59 L. R. A. 589; Merriam v. Hartford, etc., R. Co., 20 Conn. 354, 52 Am. Dec. 344; Walker v. State, 34 Fla. 167, 16 So. 80, 43 Am. St. Rep. 186; Mercer v. State, 40 Fla. 216, 24 So. 154, 74 Am. St. Rep. 135; Com. V. Sapp, 90 Ky. 580, 14 S. W. 834, 29 Am. St. Rep. 405, Wo'odrufe, Cas. 203; Fuller t. Fuller, 177 Mass. 184, 58 N. E. 588, 83 Am. St. Rep. 273; Reynolds v. Schaeffer, 91 Mich. 494, 52 N. W. 15, 30 Am. St. Rep. 492; People v. Schoonmaker, 117 Mich. 190, 75 N. W. 439, 72 Am. St. Rep. 560; State v. Frey, 76 Minn. 526, 79 N. W. 518, 77 Am. St. Rep. 660; Cramer v. Hurt, 154 Mo". 112, 55 S. W. 258, 72 Am. St. Rep. 752; State v. Kodat, 158 Mo. 125, 59 S. W. 73, 81 Am. St. Rep. 292; Robinson v. Robinson, 22 R. I. 121, 46 Atl. 455, 84 Am. St. Rep. 832; State v. Burt (S. D.) 94 N. W. 409, 62 L. R. A. 172; Ro- land V. State, 9 Tex. App. 277, 35 Am. Rep. 743; Brock v. State (Tex. 'A § 94 CONSEQUENCES OF MARRIAGE. 195 IV. Transactions Between Husband and Wife. § 94. Antenuptial contracts — Effect of marriage. An unmarried woman is as competent, at common law, to make a contract, as an unmarried man, and, so far as competency of parties is concerned, a contract between an unmarried woman and an unmarried man is, of course, valid. It is pertinent to inquire what is the effect of the intermarriage of the parties to such a contract. The general rule is that, since a man and a woman, by intermarriage, become one person in law, all executory contracts between them entered into before marriage are discharged at common law.^^* Thus, a debt due from either to the other is extinguished by the marriage,^^^ and is not revived by the termination of the coverture by divorce,^^* or the death of one of the par- ties.2" To the general rule there are several exceptions, name- ly: (1) Contracts to be performed after the coverture is determined, as where a man, before marriage, binds his executors to pay money to his wife after his death.^** Cr. App.) 71 S. W. 20, 60 L. R. A. 465; Pickens v. Knisely, 29 W. Va. 1, 6 Am. St. Rep. 622. A full discussion of this topic will be found in works on evidence. 254 See 15 Am. & Eng. Bnc. Law (2d Ed.) 852; note in 73 Am. St. Rep. 898. The rule in equity is the same as at law, except as to marriage settlements. Schilling v. Darmody, 102 Tenn. 439, 52 S. W. 291, 73 Am. St. Rep. 892. 255 Butler V. Butler, 14 Q. B. Div. 831; Farley v. Farley, 91 Ky. 497, 16 S; W. 129; Abbott v. Winchester, 105 Mass. 115; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236. 256 Farley v. Farley, 91 Ky. 497, IB S. W. 129, Woodruff, Cas. 84. 257 Abbott V. Winchester, 105 Mass. 115; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236. 258 Milbourn v. Bwart, 5 Term R. 375; Cage y. Acton, 12 Mod. 288. 196 HUSBAND AND WIFE. § 94 (2) Contracts made in contemplation and in considera- tion of marriage, usually known as marriage settlements or antenuptial contract^.^^^ (3) Contracts made by one or both of the parties in a representative capacity, as executor, administrator, etc. Thus, if a man exe- cutes a bond payable to an administratrix, and after- wards marries the administratrix, the bond neverthe- less remains in force.^*" (4) Contracts made by one party M'ith a trustee for the other.^'^i The excepted con- tracts are not extinguished by the marriage. It would seem that under statutes giving a married woman full contractual capacity and the right to retain her own property and her separate earnings, and exon- erating the husband from liability for her antenuptial debts, the common-law rule that debts between husband and wife are extinguished should cease, along with the reasons for it, and it has been so held under the mar- ried women's acts.^"^ But it has also been held that wherever any of the substantial reasons for the rule re- main in force, as under statutes not completely "emanci- pating" the wife, the common-law rule still obtains.^"^ 25oBispham, Princ. Eq. § 114. See ante, § 77. 260 King V. Green, 2 Stew, (Ala.) 133, 19 Am. Dec. 46. 2011 Minor, Inst. {2d Ed.) 291. A conspicuous instance is the case of marriage settlements. 262 Wilson V. Wilson, 36 Cal. 447, 95 Am. Dec. 194; Power v. Les- ter, 23 N. Y. 527. See, also. In re Callister, 153 N. Y. 294, 47 N. E. 268, 60 Am. St. Rep. 620. In Maine it has been held, under a statute providing that "a woman, having propertj', is not deprived of any part of it by her marriage," that a divorced woman may recover from her former husband for personal services performed for him before their marriage. Carlton v. Carlton, 72 Me. 115, 39 Am. Rep. 307. 263 Butler V. Butler, 14 Q. B. Div. 831; Farley v. Farley, 91 Ky. § 95 CONSEQUENCES OF MARRIAGE. 197 § 95. Postnuptial contracts and transfers of property — ^At common law. In consequence of the legal unity of husband and wife, all direct dealings between them are, in general, mere nullities at common law. Thus, they cannot contract with each other. This would necessarily follow from the fact that at common law a married woman has no power to contract at all; and, furthermore, since the, legal iden- tity of the wife is merged into that of her husband, such a contract would, in effect, be the contract of a man with himself, which is an absurdity ; and, moreover, since the wife is presumed to be under the coercion of the hus- band, she would not be bound by the contract, because she is supposed not to have entered into it of her own free will. Such contracts, therefore, are void at com- mon law.^®* 497, 16 S. W. 129; Schilling v. Darmody, 102 Tenn. 439, 52 S. W. 291, 73 Am. St. Rep. 892. Where the husband still has the right to his ■wife's services, an antenuptial promise by him to pay her for her services is extinguished by the marriage. In re Calllster, 153 N. Y. 294, 47 N. E. 268, 60 Am. St. Rep. 620. 26*1 Bl. Comm. 442; Schouler, Dom. Rel. § 52; Crater v. Crater, 118 Ind. 521, 21 N. E. 290, 10 Am. St. Rep. 161; Brown v. Dalton, 105 Ky. 668, 49 S. W. 443, 88 Am. St. Rep. 325; Helms v. Franciscus, 2 Bland (Md.) 544, 20 Am. Dec. 402; Beach v. Beach, 2 Hill (N. Y.) 260, 38 Am. Dec. 584; Hendricks v. Isaacs, 117 N. Y. 411, 22 N. E. 1029, 15 Am. St. Rep. 524. A divorced wife cannot sue her former husband at law upon an im- plied contract arising during coverture, such contract being void. Pittman v. Plttman, 4 Or. 298. As a practical question it is Immaterial whether the rule that hus- band and wife cannot contract directly with each other be considered as resulting from the legal identity of the parties or from the pre- sumed coercion of the wife by the husband, or from a combination of both reasons. It would seem, however, that the technical diffi- culty growing out of the legal identity of the parties is the stronger 198 HUSBAND AND WIPE. § 95 For the same reasons, conyeyances of property, which are but executed contracts, made by either spouse di- rectly to the other, are void. The husband cannot con- vey to the wife,^*'® nor can the wife, even though her general disability to make a conveyance has been re- moved, convey directly to the husband.-^" But a con- veyance between husband and wife may be made indi- rectly through a third person as an intermediary. Thus, the husband may convey his land to a third person for reconveyance by the latter to the wife, and, when the intermediary so conveys, the title -vests in the wife.^*^ So, also, the wife may convey her land to a third per- son, who may in turn convey it to the husband.^®^ In this case, where the law requires the deed of a married woman to be executed by her jointly with her husband, the husband must join in the wife's conveyance, to the reason; but in examining the question, the court, in Scarborough v. Watkins, 9 B. Mon. (Ky.) 540, 50 Am. Dee. 528, declared the pre- sumed coercion to be the true reason of the rule. In Barnett v. Harshbarger, 105 Ind. 410, it is said that "the rule of the common law proceeds upon the theory that, in legal contemplation, the hus- band and wife are one person, and not upon the theory that the wife is under a legal disability." 205 2 Kent, Comm. 129; Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46; Fowler v. Trebein, 16 Ohio St. 493, 91 Am. Dec. 95. 200 Rico V. Brandenstein, 98 Cal. 465, 33 Pao. 480, 35 Am. St. Rep. 192, 20 L. R. A. 702; White v. Wager, 25 N. Y. 328. But see Burdeno V. Amperse, 14 Mich. 91, 90 Am. Dec. 225. 267 Bartholomew v. Muzzy, 61 Conn. 387, 23 Atl. 604, 29 Am. St. Rep. 206; Motte v. Alger, 15 Gray (Mass.) 322; Donahue v. Hubbard, 154 Mass. 537, 28 N. E. 909, 26 Am. St. Rep. 271. 20S Scarborough v. Watkins, 9 B. Mon. (Ky.) 540, 50 Am. Dec. 528; Jackson v. Stevens, 16 Johns. (N. Y.) 110; Meriam v. Harsen, 2 Barb. Ch. (N. Y.) 232; Shepperson v. Shepperson, 2 Grat. (Va.) 501. § 96 CONSEQUENCES OP MARRIAGE. 199 intermediary f^^ but such joinder is not necessary where a wife may convey her property by her sole deed.^^" In this connection it should be noted that a statute remov- ing the disability of a wife to convey, and enabling her to convey real and personal property as if she were un- married, does not remove the disability of the husband to take by conveyance from his wife, and notwithstand- ing such a statute, a conveyance by a wife directly to her husband is void.^'^^ The foregoing considerations apply with equal force to voluntary transfers or gifts. These are generally void at common law.^'^^ § 96. Same — Doctrine in equity. Courts of equity, to a considerable extent, disregard the legal fiction of the unity of husband and wife, and, in a proper case, will uphold and enforce direct dealings between them. Thus, a contract between husband and wife, though void at law, may be sustained in equity if just and fair.^'^* As was said by the court in a recent 2«9 See cases cited in note immediately preceding. 270 See ante, § 84. 271 Rico V. Brandenstein, 98 Cal. 465, 33 Pac. 480, 35 Am. St. Rep. 192; White v. Wager, 25 N. Y. 328, Woodruff, Cas. 132. 272 14 Am. & Eng. Bnc. Law (2d Ed.) 1032; Brown v. Brown, 174 Mass. 197, 54 N. B. 532, 75 Am. St. Rep. 292. A gift of money by a liusband to liis wife is void at law, and as inoperative as a gift to himself. Washburn v. Hale, 10 Pick. (Mass.) 429. But a gift may be made by husband to wife through a third pei- son. Brown v. Brown, 174 Mass. 197, 54 N. E. 532, 75 Am. St. Rep. 292. 273 Wallingsford v. Allen, 10 .Pet. (U. S.) 583; Haussman v. Burn- ham, 59 Conn. 117, 22 Atl. 1065, 21 Am. St. Rep. 74; Veal's Adm'r v. 200 HUSBAND AND WIFE. § 96 case:"* "The doctrine of the unity of husband and wife, by which the legal existence of the wife was deemed to be merged in that of her husband, preventing them from contracting with each other as if they were two distinct persons, never prevailed in courts of equity. It may be more accurate to say that courts of equity dis- regard the fiction upon which the common law pro- ceeded, and are accustomed to lay hold of and give ef- fect to transactions or agreements between husband and wife, according to the nature and equity of the case. A court of equity does not limit its inquiry to the ascer- tainment of the fact whether what had taken place would, as between other persons, have constituted a con- tract, and give relief, as a matter of course, if a formal contract be established, but it further inquires whether the contract was just and fair, and equitably ought to be enforced, and administers relief where both the con- tract and the circumstances require it." Upon the same principles, conveyances between hus- band and wife will be upheld in equity, conveyances be- ing merely executed contracts.^'^^ So, also, gifts, if fully Veal, 89 Ky. 314, 12 S. W. 384, 25 Am. St. Rep. 534; Bowie v. Stone- street, 6 Md. 418, 61 Am. Dec. 318. "Contracts between husband and wife will sometimes be enforced In equity. But courts of chancery do not recognize the same right in husband and wife to contract with each other that they would have at common law were they single. Such contracts will be ex- amined with great caution, and will only be enforced when made in good faith, upon a valuable consideration, and when they are just, reasonable, and certain in their terms." Bispham, Princ. Bq. § 114. 274 Per Andrews, J., in Hendricks v. Isaacs, 117 N. Y. 411, 22 N. B. 1029, 15 Am. St. Rep. 524. 276 Jones V. Clifton, 101 U. S. 225; Moore v. Page, 111 U. S. 117, Woodruff, Gas. 130; Sims v. Rickets, 35 Ind. 181, 9 Am. Rep. 679. § 96 CONSEQUENCES OF MARRIAGE. 201 executed, will be sustained.^''^ "Ck>urts of equity do not entertain jurisdiction to enforce mere voluntary agree- ments not founded upon any conside.-ation, either in favor of the wife against the husband, or in his favor against the wife; but if they have been consummated, and are fair and just, courts of equity will uphold the transaction, except as against creditors."^''^ Wherever a court of equity sanctions dealings between husband and wife, they may deal with each other di- rectly. No third person as intermediary is necessary.^ ^® Since the relation existing between husband and wife is of a- most intimate and confidential character, afford- ing the greatest opportunity for the exercise of undue influence, especially on the part of the husband, courts of equity will closely scrutinize transactions between Woodruff, Cas. 133; Vv^ilder v. Brooks, 10 Minn. 50, 88 Am. Dec. 49; Turner v. Shaw, 96 Mo. 22, 8 S. W. 897, 9 Am. St. Rep. 319; Shepard V. Shepard, 7 Johns. Ch. (N. Y.) 57, 11 Am. Dec. 396; Hunt v. John- son, 44 N. Y. 27, 4 Am. Rep. 631; Sayers v. Wall, 26 Grat. (Va.) 354, 21 Am. Rep. 303. A conveyance by a hushand directly to the wifa^ though void at common law, passes an equitable title, the husband retaining the legal title as trustee for the wife. Ogden v. Ogdea, 60 Ark. 70, 28 S. W. 796, 46 Am. St. Rep. 151. 276 14 Am. & Eng. Ene. Law (2d Ed.) 1032-1034, and cases there cited; Bispham, Princ. Eq. § 114; Botts v. Gooch, 97 Mo. 88, 11 S. W. 45, 10 Am. St. Rep. 287. In some cases it has been held Ihat voluntary conveyances from hu'sband to wife are void in equity as well as at law. Dean v. Metro- politan El. R. Co., 119 N. Y. 540, 23 N. B. 1054; Fowler v. Trebein, 16 Ohio St. 493, 91 Am. Dec. 95. This can be correct, however, only in exceptional cases. It is well settled that gifts by husband to wife, whether of realty or chattels, are valid in equity if free from fraud. 2T7 Per Andrews, J., in Hendricks v. Isaacs, 117 N. Y. 411, 22 N. B. 1029, 15 Am. St. Rep. 524. 278 Wallingsford v. Allen, 10 Pet. (tJ. S.) 583; Jones v. Clifton, 101 U. S. 225. 202 HUSBAND AND WIFE. § 97 them which operate to the advantage of the stronger party, and will require clear proof of its fairness and good faith.^'^® In general, the wife has a right to rely upon the promises and representations of her husband, and is not precluded from obtaining relief against his fraud by her failure to make investigations for herself.^*" § 97. Same — Under statutes. The common-law rules as to dealings between hus- band and wife have in many if not most of the states been abrogated or greatly modified by statute. The gen- eral trend of the statutes has been to place husband and wife, in this respect, upon substantially the same footing as strangers, the common-law fiction of their legal unity being dropped, and substantially the doctrine of courts of equity adopted. Under statutes so providing, hus- band and wife may contract directly with each other or convey property to each other, in most cases as if the marital relation did not exist between them.^*^ It , 279 29 Am. & Eng. Bnc. Law (2d Ed.) 129; Meldrum v. Meldrum, 15 Colo. 478, 24 Pac. 1083, 11 L. R. A. 65; De Ruiter v. De Ruiter, 29 Ind. App. 9, 62 N. E. 100, 91 Am. St. Rep. 106; Farmer v. Farmer, 39 N. J. Eq. 215; Boyd v. De La Montagnie, 78 N. Y. 498, 29 Am. Rep. 197; Darlington's Appeal, 86 Pa. 512, 27 Am. Rep. 726. 280 De Ruiter v. De Ruiter, 29 Ind. App. 9, 62 N. E. 100, 91 Am. St. Rep. 106. 281 Osborne v. Cooper, 113 Ala. 405, 21 So. 320, 59 Am. St. Rep. 117; Jones v. Chenault, 124 Ala. 610, 27 So. 515, 82 Am. St. Rep. 211; Dimond v. Sanderson, 103 Cal. 97, 37 Pac. 189; Glas v. Glas, 114 Cal. 566, 46 Pac. 667, 55 Am. St. Rep. 90; O'Connell v. Taney, 16 Colo. 353, 27 Pac. 888, 25 Am. St. Rep. 275; Corr's Appeal, 62 Conn. 409, 26 Atl. 478; Barrows v. Barrows, 138 111. 649, 28 N. E. 983; Despain v. Wagner, 163 111. 598, 45 N. B. 129; Peaks v. Hutchinson, 96 Me. 530, 53 Atl. 38, 59 L. R. A. 279; Johnson v. Johnson, 173 Mo. 91, 73 S. W. 202, 96 Am. St. Rep. 486; Williams v. Harris, 4 S. D. 22, 54 N. W. § 97 CONSEQUENCES OF MARRIAGE. 203 should be noted, however, that this great change in the law is not accomplished except where the legislature clearly so intends. A statute giving married women power to make contracts generally as if sole does not enable a wife to enter into a binding contract with her husband.^®^ Moreover, even where husband and wife are empowered to contract with each other, their power to do so is sometimes subject to restrictions and exceptions. Thus, the statute may authorize married women to con- tract with their husbands only in matters relating to their separate estate;^®* or it may be provided that trans- actions between husband and wife shall be governed by the general rules applicable to dealings between per- sons occupying confidential relations with each other,^^* which would undoubtedly be the case even in the ab- sence of such a provision.^*^ So, also, irrespective of the 926, 46 Am. St. Rep. 753; Story v. Marshall, 24 Tex. 305, 76 Am. Dec. 106. See, generally, as to the validity of contracts and conveyances be- tween husband and wife, at common law, in equity, and under the statutes, notes in 57 Am. Dec. 195, 88 Am. Dec. 54, 99 Am. Dec. 599, and 9 Am. St. Rep. 323. 282Heacook v. Heacock, 108 Iowa, 540, 79 N. W. 353, 75 Am. St. Rep. 273; Knell v. Egleston, 140 Mass. 202, 4 N. E. 573; Hendricks v. Isaacs, 117 N. Y. 411, 22 N. B. 1029, 15 Am. St. Rep. 524, 6 L. R. A. 559. See, also, Plaisted v. Hair, 150 Mass. 275, 22 N. E. 921, 5 L. R. A. 664. 283 Heacock v. Heacock, 108 Iowa, 540, 79 N. W. 353, 75 Am. St. Rep. 273. 2«4 See Brison v. Brison, 75 Gal. 525, 17 Pac. 689, 7 Am. St. Rep. 189; Dimond v. Sanderson, 103 Gal. 97, 37 Pac. 1890. A gift from husband to wife may be revoked or set aside if pro- cured by fraud. Meldrum v. Meldrum, 15 Colo. 478, 24 Pac. 1083, 11 L. R. A. 65; Evans v. Evans, 118 Ga. 890, 45 S. E. 612, 98 Am. St. Kep. 180. 285 See ante, § 96. 204 HUSBAND AND WIFE. § S8 terms of the statute, certain contracts between husband and wife may be void either because of the relationship of the parties or the nature of the contract. Thus, in some states a married woman cannot enter into a con- tract of partnership with her husband, unless the statute expressly so provides, although her common-law disabil- ities have been so far removed that she may become a partner of a stranger. This appears to be the better doc- trine, though it is held otherwise in other states, the ap- parent conflict being probably mostly due to differences in the statutes.^^® Again, agreements by either or both of the parties to perform the obligations to each other grow- ing out of the marital relation are without consideration, contrary to public policy, and void.^^'' Since the marriage relation affords a convenient cover for the commission of fraud upon third persons by trans- fers of property from husband to wife, transactions be- tween them to the prejudice of the husband's creditors will be closely scrutinized by the courts, to see that they are fair and honest, and not mere contrivances for plac- ing the husband's property beyond the reach of his cred- itors.^^'^^ § 98. Relation of debtor and creditor between husband and wife. A wife may make a valid loan to her husband, and if 280 See ante, § 91. 287 See ante, §§ 59, 65. And see Dempster Mill Mfg. Co. v. Bundy, 64 Kan. 444, 67 Pac. 816, 56 L. R. A. 739, in which the leading cases are stated. A contract by a wife to support her husband is void. Corcoran v. Corcoran, 119 Ind. 138, 21 N. B. 468, 12 Am. St. Rep. 390. 287a Williams v. Harris, 4 S. D. 22, 54 N. W. 926, 46 Am. St. Rep. 753; note in 90 Am. St. Rep. 497. See ante, § 78. § 98 CONSEQUENCES OP MARRIAGE. 205 she gives him money out of her separate ^estate upon an express promise by him to repay it, the transaction is clearly a loan and the husband is bound to repay the amount loaned.^** There is some conflict of authority, however, as to the nature of the transaction where the husband simply receives and uses his wife's money with- out an express promise of repayment. The usual rule is that where one person gives money to another at his request, the law will imply a promise to repay, the trans- action being presumed to be a loan, and it is held by some courts that this rule applies where the parties are husband and wife, and that the husband takes the money either as the debtor of or trustee for the wife.^^^ Other courts hold that where the husband receives and uses the wife's money without an express promise of repayment, the transaction is presumed to be a gift from her to him, and not a loan.^*" It is probable that the true doctrine 288 Williams v. Harris, 4 S. D. 22, 54 N. W. 926, 46 Am. St. Rep. 753; note 90 Am. St. Rep. 540. A wife is entitled to the same remedies, and has the same stand- ing to enforce any security for the payment of her husband's debt to her, as any other creditor. Manchester v. Tibbetts, 121 N. Y. 219, 24 N. E. 304, 18 Am. St. Rep. 816. See, also, Mayers v. Kaiser, 85 Wis. 382, 55 N. W. 688, 39 Am. St. Rep. 849. 289 Parrett v. Palmer, 8 Ind. App. 356, 35 N. B. 713, 52 Am. St. Rep. 479; King v. King, 24 Ind. App. 598, 57 N. E. 275, 79 Am. St. Rep. 287; Sykes v. City Sav. Bank, 115 Mich. 321, 73 N. W. 369, 69 Am. St. Rep. 562; Riley v. Vaughan, 116 Mo. 169, 22 S. W. 707, 38 Am. St. Rep. 586. 290 Driggs & Co.'s Bank v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am> St. Rep. 78; Clark v. Patterson, 158 Mass. 388, 33 N. B. 589, 35 Am. St. Rep. 498; Beecher v. Wilson, 84 Va. 813, 6 S. E. 209, 10 Am. St. Rep. 883; Bennett v. Bennett, 37 W. Va. 396, 16 S. B. 638, 38 Am. St. Rep. 47; Crumrine v. Crumrine, 50 W. Va. 226, 40 S. B. 341, 88 Am. St. Rep. 859. 206 HUSBAND AND WIFE. § 98 is that the mere receipt and use of the wife's money by the husband raises no decided presumption either way, and that much will depend upon the circumstances of the case, including the amount involved, whether it was received at one time or at different times,^^^ whether it constitutes the principal of the wife's estate, or merely the income therefrom,^®^ whether the question arises be- tween the parties themselves, or between them and cred- itors of either,^^^ and other like considerations. A husband who is indebted to his wife may, in good faith, prefer her as a creditor, and pay his debt to her to the exclusion of his other creditors.^** 291 Where the wife permits the husband to receive and use the in- come of her property for a number of years, a gift will be presumed. Estate of Hauer, 140 Pa. 420, 21 Atl. 445, 23 Am. St. Rep. 245; Mc- Lure V. Lancaster, 24 S. C. 273, 58 Am. Rep. 259. See, also. Wells v. Batts, 112 N. C. 283, 17 S. B. 417, 34 Am. St. Rep. 506. 2S2 In Estate of Hauer, 140 Pa. 420, 21 Atl. 445, 23 Am. St. Rep. 245, the court said: "A broad and plain distinction is drawn by the cases between the receipt by the husband of the income of the wife's separate property and the receipt by him of the principal or corpus of her estate. A gift of the income may be implied from his receipt of it with her consent, but a gift of the principal will not be presumed from her mere acquiescence in his receipt and use of it." Quoted with approval in Adone v. Spencer, 62 N. J. Eq. 782, 49 Atl. 10, 90 Am. St. Rep. 484, 56 L. R. A. 817. And see note in 90 Am. St. Rep. 542, and monographic note in 56 L. R. A. 817. 293 A wife has the same right to loan money to her husband as to a stranger, but, for the prevention of fraud on his creditors, clear and satisfactory proof of a wife's claim against her husband is ex- acted to a degree not required of others. Lahr's Appeal, 90 Pa. 507. See, also, Driggs & Co.'s Bank v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78; Kanawha Valley Bank v. Atkinson, 32 W. Va. 203, 9 S. E. 175, 25 Am. St. Rep. 806. See monographic note in 56 L. R. A. 817. 291 German Ins. Co. v. Bartlett, 188 111. 165, 58 N. E. 1075, 80 Am. St. Rep. 172; Cornell v. Gibson, 114 Ind. 144, 16 N. E. 130, 5 Am. St.- § 99 CONSEQUENCES OP MARRIAGE. 207 The statute of limitations does not run as to dealings between husband and wife. This is a consequence of the doctrine of their legal unity of person, which has not been wholly abrogated by the statutes removing the wife's common-law disabilities, and, moreover, the policy of the law is rather to encourage inaction in the prose- cution of claims between them than to require the prompt assertion of such claims.^*' § 99. Wife as agent of husband. A wife may, at common law, as well as under modern statutes, act as the agent of her husband and bind him as such.^®® This is not inconsistent with the common- law doctrine that husband and wife are one person in law, for the law of agency is based upon a notional iden- tity of person of principal and agent, in consequence of which the act of the agent, within the scope of the agency, is said to be the act of the principal.^'''' The wife has, however, by virtue of the marriage relation alone, no authority to bind her husband by contracts of Rep. 605; Riley v. Vaughan, 116 Mo. 169, 22 S. W. 707, 38 Am. St. Rep. 586; Williams v. Harris, 4 S. D. 22, 54 N. W. 926, 46 Am. St. Rep. 753; note in 90 Am. St. Rep. 547. 205 19 Am. & Eng. Bnc. Law (2d Ed.) 186; note in 90 Am. St. Rep. 549; Barnett v. Harshtarger, 105 Ind. 410, 5 N. B. 718; Parrett v. Palmer, 8 Ind. App. 356, 35 N. B. 713, 52 Am. St. Rep. 479; Second Nat. Bank v. Merrill, 81 Wis. 151, 50 N. W. 505, 29 Am. St. Rep. 877; Fawcett v. Fawcett, 85 Wis. 332, 55 N. W. 405, 39 Am. St. Rep. 844. See, also, Manchester v. Tibbetts, 121 N. Y. 219, 24 N. E. 304, 18 Am. St. Rep. 816. 29S See cases cited in notes immediately following. 287 Spencer v. Tisue, Addison (Pa.) 315. "A woman indeed may be attorney for her husband, for that implies no separation from, but is rather a representation of, her lord." 1 Bl. Comm. 442. 208 HUSBAND AND WIFE. § 99 a general nature.^®* Except in the case of her contracts for necessaries, which the husband, in disregard of his legal duty to support his wife, has failed to provide,^*^ the wife has no mOTe^owrJojHn_d jiCT_^usban^ tracts made in his name than has a stranger^ The ques- tion as to her authority is purely one of agency, and is to be determined according to the principles of the law of agency in general. The husband cannot be held liable for debts contracted by the wife in his name unless he has in some way given her authority to contract such debts.^"" This authority, however, in accordance with the general principles of the law of agency, may be either express^"^ or implied,^"^ and may be conferred be- fQj.g303 ^j^g act of the wife, or afterwards, as where the husband subsequently ratifies what she has done.^"* Cases in which the husband expressly authorized the wife in advance to perform the act with which he is sought to be charged, are, of course, quite simple and present no difficulty ;^''^ but it is not always easy to de- 298 Debenham v. Mellon, L. R. 6 App. Cas. 24; Benjamin v. Benja- min, 15 Conn. 347, 39 Am. Dec. 384; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362; Tuttle v. Hoag, 46 Mo. 38, 2 Am. Rep. 481. 290 See post, § 115. 300 Montague v. Benedict, 3 Barn. & C. 631, 10 E. C. L. 205; Clark V. Cox, 32 Mich. 204. A wife can bind her husband as his agent only within the scope of her authority. Goodrich v. Tracy, 43 Vt. 314, 5 Am. Rep. 281. SOI See note 303, infra. 302 See Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Kriegler v. Smith, 13 Mont. 235, 33 Pae. 937. 303 See, generally, cases cited throughout this section. 804 Hill V. Sewald, 53 Pa. 271, 91 Am. Dec. 209. See notes 307. 308, Intra. § 99 CONSEQUENCES OF MARRIAGE. 20'J termine when the wife's authority to bind her husband should be implied. In accordance with the general principles of the law of agency, it is held that the authority of the wife to bind the husband by purchases and other contracts made on his credit may be implied from a previous course of dealing between the parties. Thus, where the wife has contracted obligations in her husband's name, and he has discharged suc h obligations without prohibiting a further extension of credit to' the wife, her authority to make similar contracts in the future will be implied, and the husband will be bound thereby.^"* So, also, a contract made by the wife in her husband's name, even though unauthorized and not binding on him when made, may become binding by his subsequent ratifica- tion thereof. Thus, the husband is bound where, upon learning of the contract, he does not repudiate it, but promises to pay the debt,^"'' or where, without objection, he permits the wife to retain articles purchased by her on his credit. In the latter case he is bound to pay what the articles were reasonably worth.^"* 305 All such cases are governed by the general principles of the law of agency. 306 Keller v. Phillips, 39 N. Y. 351; Sibley v. Gilmer, 124 N. C. 631, 32 S. E. 964; Cowell v. Phillips, 17 R. I. 188, 20 Atl. 933, 11 L. R. A. 182; Oilman v. Andrus, 28 Vt. 241, 67 Am. Dec. 713. The wife's implied authority is presumed to continue until notice to the contrary is given; it is not revoked by the mere separation of the parties. Sibley v. Gilmer, 124 N. C. 631, 32 S. E. 964; Cowell v. Phillips, 17 R. I. 188, 20 Atl. 933, 11 L. R. A. 182. 307 Conrad v. Abbott, 132 Mass. 330. sosMacKinley v. McGregor, 3 Whart. (Pa.) 369, 31 Am. Dec. 522; Oilman v. Andrus, 28 Vt. 241, 67 Am. Dec. 713. Long, D. R.— 14. 210 HUSBAND AND WIFE. § 99 Where the parties live together, it will ordinarily be presumed that the wife has authority to bind her hus- band for necessaries for herself and household; that is, for such articles as fall fairly within the domestic de- partment, which is ordinarily confided to her manage- ment, and for articles for her personal use suitable to her husband's means and position in society.^"* This presumption is founded upon the well-known fact that in modern society, almost universally, the wife, as the manager of the household, is clothed with authority thus to pledge her husband's' credit for articles of ordinary household use.^^" As was well said in an early case: "Where a wife is living with her husband, and where, in the orclijiary arrangements of her husband's household, she gives orders to tradesmen for the benefit of her hus- band and family, and these orders are proper and not extravagant, it is presumed that she has the authority of her husband for so doing. This rule is founded on com- mon sense, for a wife would be of little use to her hus- band in their domestic arrangements if she could not order such things as are proper for the use of a house, and for her own use, without the interference of her husband. The law therefore presumes that she does this by her husband's authority."^" It should be noted that modern statutory provisions regulating the rights and 309 Baker v. Carter, 83 Me. 132, 21 Atl. 834, 23 Am. St. Rep. 764; Clark V. Cox, 32 Micli. 204; Flynn v'. Messenger, 28 Minn. 208, 9 N. W. 759, 41 Am. Rep. 279; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362. aio Bergh v. Warner, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362. 811 Per Lord Abinger, in Emmett v. Norton, 8 Car. & P. 506, 34 E. C. L. 503. § 99 CONSEQUENCES OP MARRIAGE. 211 liabilities of married women have not affected either the obligation of the husband to support and maintain the family or the presumption of the wife's authority to act in his behalf in supplying the ordinary wants of his household.^^^ But the wife's implied authority to bind her husband, arising out of the fact of cohabitation, extends only to contracts for necessaries. She cannot, by virtue of such implied authority merely, bind him by any contracts or purchases she may choose to make as his wife.^^* Nor can she bind him even for articles technically neces- saries, where they were not actually necessary for the reason that the husband had already sufficiently sup- plied her wants.''^* The re.is no p resumption that a wife liv i.ng:_aBart from her husband has authOTit^Jg^bind him by Jier contract for necessaries.^^® As we have just seen, she may or may not have power so to bind him, according to the circumstances of the separation; and in an action 3i2Flymi V. Messenger, 28 Minn. 208, 9 N. W. 759, 41 Am. Rep. 279. 313 Phillipson v.-Hayter, L. R. 6 C. P. 38; Clark v. Cox, 32 Mich. 204. 314 Seaton v. Benedict, 5 Bing. 28, 15 E. C. L. 354; Debenham v. Mellon, L. R. 6 App. Cas. 24; Wanamaker v. Weaver, 176 N. Y. 75, €8 N. E. 135, 98 Am. St. Rep. 621, 65 L. R. A. 529. 315 It is declared by some authorities that the presumption is against the authority of a wife to bind her husband by her con- tracts for necessaries, where the husband and wife are living apart. Vusler V. Cox, 53 N. J. Law, 516, 22 Atl. 347, Woodruff Cas. 76; 15 Am. & Bng. Enc. Law (2d Ed.) 883. But since the husband may or may not be liable, according to circumstances, the true rule would seem to be that of the text, namely, that there is no presumption, from the mere fact of separation, either for or against such au- thority. 212 HUSBAND AND WIFE. § 99 against the husband for necessaries furnished the wife while living apart, the burden is upon the plaintiff to show that the circumstances of the separation were such as to render the husband liable.*^® Tradesmen and others supplying the wants of a married woman living separate from her husband are bound to inform them- selves as to- the cause and circumstances of the separa- tion, or they give credit at their peril f^'' and a person Avho furnishes necessaries to a married woman separat- ed from her husband through her own fault cannot re- cover therefor from the husband, although he may have been ignorant of the cause,^^® or even of the fact, of the separation.^!® In an action against a husband upon a contract made by his wife, the burden is upon the plaintiff either to show directly that the husband authorized the contract, or to lay before the jury such circumstances as will en- able them to presume that such authority was given. In the latter case, if the presumption raised is not re- butted by contrary evidence introduced by the husband, the jury may find against him.*^" 316 Mainwaring v. Leslie, 2 Car. & P. 507, 12 E. C. 'L. 238; Clifford T. Laton, 3 Car. & P. 15, 14 E. C. L. 188; Mitchell v. Treanor, 11 Ga. 324, 56 Am. Dec. 421; Peaks v. Mayhew, 94 Me. 571, 48 Atl. 172; Sturbridge v. Franklin, 160 Mass. 149, 35 N. B. 669. 817 Billing Y.. Pilcher, 7 B. Mon. (Ky.) 458, 46 Am. Dec. 523; Mc- Cutchen v. McGahay, 11 Johns. (N. Y.) 281, 6 Am. Dec. 373; Walker V. Simpson, 7 Watts & S. (Pa.) 83, 42 Am. Dec. 216; and cases cited in notes Immediately following. 318 Gill V. Read, 5 R. I. 343, 73 Am. Dec. 73. 310 Vusler v. Cox, 53 N. J. Law, 516, 22 Atl. 347, Woodruff Cas. 76. 320 Montague v. Benedict, 3 Barn. & C. 631, 10 E. C. L. 205; Tuttle- V. Hoag, 46 Mo. 38, 2 Am. Rep. 481. § 100 CQNSEQUENCBS OF MARRIAGE. 213 § 100. Husband as agent of wife. At common law, since a married woman's contracts are void, she cannot appoint an agent, and hence, of course, cannot appoint her husband as such.^^^ There is nothing, however, in the marriage relation, that ren- ders the husband incapable of acting as the wife's agent ; the difficulty lies in the wife's incapacity to make the appointment. Wherever, therefore, her disabilities in this respect are removed, as where she is empowered to manage her separate estate, or is given, in general, the status and powers of a feme sole, she may appoint her husband as her agent, and he may act as such.^^^ As in the case of any other principal, the wife will be bound by any contracts,^^^ and liable for any torts,^^* ' 321 See ante, §§ 83, 95. 322 Jones V. Chenault, 124 Ala. 610, 27 So. 515, 82 Am. St. Rep. 211; Prentiss v. Paisley, 25 Fla. 927, 7 So. 56, 7 L. R. A. 640; Hunger v. Baldridge, 41 Kan. 236, 21 Pac. 159, 13 Am. St. Rep. 273; Taylor v. Wands, 55 N. J. Eq. 491, 37 Atl. 315, 62 Am. St. Rep. 818; Third Nat. Bank v. Guenther, 123 N. Y. 568, 25 N. B. 986, 20 Am. St. Rep. 780; Wronkow v. Oakley, 133 N. Y. 505, 31 N. E. 521, 28 Am. St. Rep. 661; Brown v. Thomson, 31 S. C. 436, 10 S. E. 95, 17 Am. St. Rep. 40; Trapnell v. Conklyn, 37 W. Va. 242, 16 S. E. 570, 38 Am. St. Rep. 242; Weishrod v. Chicago, etc., R. Co., 18 Wis. 35, 86 Am. Dec. 743; Wood V. Armour, 88 Wis. 488, 60 N. W. 791, 43 Am. St. Rep. 918; 1 Am. & Eng.Enc. Law {2d Ed.) 942, 958; note in 83 Am. St. Rep. 518. Where the wife employs her husband as her agent in the man- agement of her property or the conduct of her business, the product of his labor and skill is not subject to the claims of his creditors, though there is some authority to the contrary. Taylor v. Wands, 55 N. J. Eq. 491, 37 Atl. 315, 62 Am. St. Rep. 818, and note; Mayers V. Kaiser, 85 Wis. 382, 55 N. W. 688, 39 Am. St. Rep. 843. 323 Maxcy Mfg. Co. v. Barnham, 89 Me. 538, 36 Atl. 1003. 56 Am. St. Rep. 436; Reed v. Morton, 24 Neb. 760, 40 N. W. 282, 8 Am. St. Rep. 247; Bodey v. Thackara, 143 Pa. 171, 22 Atl. 754, 24 Am. St. 214 HUSBAND AND WIFE. § 101 made or committed by her husband while acting within the scope of his authority as her agent. The agency of the husband for the wife, like that of the wife for the husband,^^^ will not be inferred from the marital relation alone, but must be established ac- cording to the general principles of agency, by proof of a previous appointment by the wife, or subsequent adoption or ratification by her of her husband's acts.^^* § 101. Suits between husband and wife. At common law, since husband and wife are regarded as one person, they cannot sue each other in a court of law;^^'^ but in equity, suits between husband and wife have always been allowed, the wife, if plaintiff, suing by her next friend, and, if defendant, defending as if sole.^^* In many states, statutes how authorize actions be- Rep. 526; Nelson v. McDonald, 80 Wis. 605, 50 N. W. 893, 27 Am. St. Rep. 71. 324 Shane v. Lyons, 172 Mass. 199, 51 N. B. 976, 70 Am. St. Rep. 261. 325 See ante, § 99. 326 Hoffman v. McFadden, 56 Ark. 217, 19 S. W. 753, 35 Am. St. Rep. 101; Henry v. Sneed, 99 Mo. 407, 12 S. W. 663, 17 Am. St. Rep. 580; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 82 N. W. 112, 83 Am. St. Rep. 512; 15 Am. & Eng. Enc. Law (2d Ed.) 855. 327 10 Enc. PI. & Pr. 195. 328 10 Enc. PI. & Pr. 195, 197; Barber v. Barber, 21 How. (U. S.) 582; Frankel v. Frankel, 173 Mass. 214, 53 N. E. 398, 73 Am. St. Rep. 266. Where a husband brings a bill against his wife he thereby "admits her to be a feme sole," and she must answer as such, and no guard- ian to defend for her should be appointed. Ex parte Strangeways, 3 Atk. 478; Mitf. Eq. PI. 96. § 102 CONSEQUENCES OF MARRIAGE. 215 tween husband and wife directly in a court of law.^^^ Thus, where a statute authorizes a married woman to sue alone for the recovery of her separate property, she may sue her husband to recover her personal prop- erty,*^" or maintain ejectment against him to recover possession of her realty.**^ In suits for divorce the wife sues or is sued alone.**^ § 102. Wills in each other's favor. At common law, a husband may give property to his wife by will. The rule, founded upon the legal unity of husband and wife, that the husband cannot transfer property directly to the wife, does not apply to the case of a transfer by will, for a will does not take effect un- til after the death of the testator, and this event severs the matrimonial union.*^* But a wife cannot make a will in favor of her hus- band, for she is presumed to act under his coercion, and hence her will in his favor is not considered as her 329 See Wilson v. Wilson, 36 Cal. 447, 95 Am. Dec. 194; May v. May, 9 Neb. 16, 31 Am. Rep. 399. For an exhaustive note on suits between husband and wife at common law, in equity, and under the statutes, see 73 Am. St. Rep. 268. 330 Bruce v. Bruce, 95 Ala. 563, 11 So. 197. 331 Cook V. Cook, 125 Ala. 583, 27 So. 918, 82 Am. Str Rep. 264; Crater v. Crater, 118 Ind. 521, 21 N. B. 290, 10 Am. St. Rep. 161; Manning v. Manning, 79 N. C. 293, 28 Am. Rep. 324. In the case last cited it was held that, while the action would lie to put the wife in possession, the husband's marital right to occupy the prop- erty could not be impaired. See, also, State v. Jones, 132 N. C. 1043, 43 S. E. 939, 95 Am. St. Rep. 688. 332 7 Enc. PI. & Pr. 60. See Van Orden v. Van Orden, 58 N. J. Eq. 545, 43 Atl. 882. 333 1 Bishop, Mar. Women, §§ 37, 715. 216 HUSBAND AND WIFE. § 103 voluntary act.^^* Under modern statutes, however, such wills are valid.^^^ § 103. Liability to each other in tort. At common law, neither spouse can maintain an ac- tion against the other for a personal tort. Thus, the wife cannot recover damages from the husband for an assault and battery,^^^ or libel,^^'^ or any other tort^^* committed during coverture. Nor have the statutes en- larging the rights of married women changed the law in this respect.^^® The fact that the marriage has been dissolved by di- vorce does not enable the injured party to maintain an action against the other for a tort committed during 3S4 1 Bishop, Mar. Women, §§ 37, 715. 335 Consult the various statutes. 330 Phillips V. Barnett, 1 Q. B. Div. 436; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Schultz v. Sehultz, 89 N. Y. 644. In denying relief to the wife in such case, the court in the Maine case above cited said: "We are not convinced that it is desirable to have the law as the plaintiff contends it to be. There is no necessity for it. Practically, the married woman has remedy enough. The criminal courts are open to her. She has the privilege of habeas corpus, if unlawfully restrained. As a last resort, if need be, she can prose- cute, at her husband's expense, a suit for divorce. If a divorce is decreed to her, she has dower in all his estate, and all her needs and all her causes of complaint, including any cruelties suffered, can be considered by the court, and compensation in the nature of ali- mony allowed for them. In this way, all matters would be settled in one suit as a finality." 337 See Smith v. Smith, 73 Mich. 445, 41 N. W. 49'9, 16 Am. St. Rep. 594. 338 Bandfield v. Bandfleld, 117 Mich. 80, 75 N. W. 287, 72 Am. St. Rep. 550, 40 L. R. A. 757. 330 Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589; Bandfield v. Band- field, 117 Mich. 80, 75 N. W. 287, 72 Am. St. Rep. 550. § 105 CONSEQUENCES OF MARRIAGE. 217 coverture. The coverture does not merely suspend the remedy, — it prevents any right of action from arising.^^" V. Rights of Husband and Wife Against Third Peesons. § 104. On contract. The rights of husband or wife or both on contracts made with third persons will depend, of course, on the validity of the particular contract. Since the husband is under no disability to contract with third persons, he may enforce such contracts whenever they are en- forceable under the law of contracts generally. On the other hand, since the wife, at common law, is unable to make a valid contract, she cannot, in general, enforce her attempted contracts against the other parties there- to, at least so long as the contract is wholly execu- tory.^*i This branch of the subject calls for no pai- ticular discussion, having already been sufficiently treat- ed incidentally in other connections. § 105. In tort — ^Wrongs against right of cohabitation — In general. There are several serious wrongs which may be com- mitted by third persons against the right of marital 340 Phillips V. Barnett, 1 Q. B. Div. 436; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287, 72 Am. St. Rep. 550, 40 L. R. A. 757. Nor can a divorced woman maintain an action against a third person for a tort committed by him against her during coverture at the instance of her husband. Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589. s-ii It seems tha:t a contract executed by the wife, but not by the other party, may be enforced against the latter. 15 Am. & Eng. Enc. Law (2d Ed.) 791. And, in such case, the wife, having, exe- cuted the contract, cannot repudiate it, but Is bound by it, although 218 HUSBAND AND WIFE. § 106 cohabitation. These are the abduction by force or fraud of husband or wife, enticing or persuading either spouse to desert the other, alienating the affections of husband or wife, and criminal conversation with either spouse. These wrongs are all more or less alike in their nature, and two or more of them frequently occur together, and are made the subject of the same action for damages. Thus, a man may win the affections of another's wife and induce her to leave her husband and live in adultery Avith himself, thus committing three of the wrongs at once in accomplishing his general purpose of possessing the wife of another. Each act, however, is a distinct injury, and may be made the subject of an independent action. We shall examine the several cases in detail. § 106. Same — Abduction or enticement of spouse. Whoever, by force or fraud, takes a man's wife away from him,^*^ or by persuasion induces her to leave him without sufficient cause,^** is liable to the husband for the injury thus done him in depriving him of his wife's society. The gist of the husband's action in such case is the loss of the consortium, — that is, of the com- she was not liable on the contract so long as it remained executory. Warwick v. Lawrence, 43 N. J. Eq. 179, 10 Atl. 376, 3 Am. St. Rep. 299. 3«3 Bl. Comm. 139; 1 Am. & Eng. Enc. Law (2d Ed.) 163. The abduction of a wife practically never occurs, and there is, there- fore, very little law on the subject. 343 Perry v. Lovejoy, 49 Mich. 529, 14 N. W. 485; Barbae v. Arm- stead, 10 Ired. (N. C.) 530, 51 Am. Dec. 404; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; Gilchrist v. Bale, 8 Watts (Pa.) 355, 34 Am. Dec. 469; 1 Am. & Eng. Enc. Law (2d Ed.) 163; and cases cited in notes immediately following. § 1-Q6 CONSEQUENCES OP MARRIAGE. 219 fort, society, and services of the wife.^** It is not nec- essary, to give a rigtit of action, that the defendant should have been criminally intimate with the wife.^''^ And where the action is for enticing the wife away, the fact that the wife consented is immaterial; she has no power to consent to disregard her marital duty.^*® More- over, if the defendant's conduct was the controlling cause, it is not necessary that it should have been the sole cause, of the wife's desertion. The fact that there were contributing causes, such as unhappy relations be- tween the husband and wife, will not excuse the defend- ant, but is a circumstance to be considered in estimat- ing damages, noj; because the defendant is the less to blame, but because, in the circumstances, the loss to the husband is less than it might have been if the rela- tions between the parties had been more satisfactory.^*'' But the defendant must have been active in causing the wife's desertion. If she leaves her husband on account of his own misconduct or for other reason, without the defendant's interference, there is no liability.^** Thus, a person who, from motives of humanity and not from any improper motive, merely harbors a wife who has left her husband for good reason, is not liable to the husband.^** And even where the defendant was active 344 Perry v. Lovejoy, 49 Mich. 529, 14 N. W. 485. 345 Perry v. Lovejoy, 49 Mich. 529, 14 N. W. 485. 346 Higham v. Vanosdol, 101 Ind. 160. 347Hadley v. Heywood, 121 Mass. 236. 348 Perry v. Lovejoy, 49 Mich. 529, 14 N. W. 485. 349 1 Am. & Bng. Enc. Law (2d Ed.) 164, and case cited In notes immediately following. "The old law was so strict in this point that, if one's wife missed her way upon the road, it was not lawful for another man to take her into his house, unless she was benighted and in danger of being lost or drowned."' 3 Bl. Comm. 139. 220 HUSBAND AND WIFE. § 106 in procuring the wife's desertion, the purity of his mo- tives may be shown in mitigation of damages, and in some cases may constitute a complete defense.^^" This is especially true where an action is brought against a parent or the parents of the wife for enticing her away or harboring her after desertion. Larger privileges are allowed by the law in this connection to a parent than to a stranger f°i but even a parent may be held liable where he acted from improper motives in inducing his daughter to leave her husband.^ ^^ At common law, a wife could not maintain an action for damages against one who deprived her of the so- ciety or affections of her husband. It is a matter of some doubt whether a wife had, at common law, any right to her husband's society which the law would rec- ognize, but, assuming that the right existed, she could not enforce it, for the technical reason that she was not competent to sue, and, furthermore, any damages re- covered would belong to the husband.^^* It is clear, ssoTasker v. Tasker, 153 Mass. 148, 26 N. E. 417, 10 L. R. A. 468; note in 44 Am. St. Rep. 850. 351 Oakman v. Belden, 94 Me. 280, 47 Atl. 553, 80 Am. St. Rep. 396; Tucker v. Tucker, 74 Miss. 93, 19 So. 955, 32 L. R. A. 623; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; and cases cited in note imme- diately following. 352 Hutcheson v. Peck, 5 Johns. (N. Y.) 196; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; Glass v. Bennett, 89 Tenn. 478, 14 S. W. 1085. So, also, where the action is brought by the wife. Wil- liams V. Williams, 20 Colo. 51, 37 Pac. 614; Price v. Price, 91 Iowa, 693, 60 N. W. 202, 51 Am. St. Rep. 360, 29 L. R. A. 150; Hodgkinson V. Hodgkinson, 43 Neb. 269, 61 N. W. 577, 47 Am. St. Rep. 759, 27 L. R. A. 120; Brown v. Brown, 124 N. C. 19, 32 S. B. 320, 70 Am. St. Rep. 574; Gernard v. Gernard, 185 Pa. 233, 39 Atl. 884, 64 Am. St. Rep. 646, 40 L. R. A. 549. "53 Smith V. Smith, 98 Tenn. 101, 38 S. W. 439, 60 Am. St. Rep. § 106 CONSEQUENCES OF MARRIAGE. 221 however, that the actual injury to the wife in such a case is as great as the corresponding injury to the hus- band, and in a number of states, under statutes giving tlie wife a separate existence, and placing her,- in respect to personal and property rights, upon an equality with her husband, it is held that she may maintain an action against any one who deprives her of the society and affections of her husband, the action being generally brought for the combined wrong.^^* Where the statutes merely remove the wife's disability to sue, the cases holding that she may maintain such an action hold, some in terms and all in effect, that the right of action 838; Duffies v. Duffies, 76 Wis. 371, 45 N. W. 523, 20 Am. St. Rep. 79, 8 L. R. A. 420; and cases cited in note Immediately following. One reason assigned by Blackstone for denying the wife's right of action is that "the inferior hath no kind of property in the com- pany, care, or assistance of the superior, as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury." 3 Bl. Comm. 142. 354 Williams v. Williams, 20 Colo. 51, 37 Pac. 614; Reed v. Reed, 6 Ind. App. 317, 38 N. E. 638, 51 Am. St. Rep. 310; Haynes v. Nowlin, 129 Ind. 581, 29 N. B. 389, 28 Am. St. Rep. 213, 14 L. R. A. 787; Price v. Price, 91 Iowa, 693, 60 N. W. 202, 51 Am. St. Rep. 360, 29 L. R. A. 150; Warren v. Warren, 89 Mich. 123, 50 N. W. 842, 14 L. R. A. 549; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328, 46 Am. St. Rep. 468, 26 L. R. A. 412; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553; Brown v. Brown, 124 N. C. 19, 32 S. E. 320, 38 Li. R. A. 242, 70 Am. St. Rep. 574; Westlake v. West- lake, 34 Ohio St. 621, 32 Am. Rep. 397; Gernard v. Gernard, 185 Pa. 233, 39 Atl. 884, 64 Am. St. Rep. 646, 40 L. R. A. 549; Smith v. Smith, 98 Tenn. 101, 38 S. W. 439, 60 Am. St. Rep. 838; Beach v. Brown, 20 Wash. 266, 55 Pac. 46, 72 Am. St. Rep. 98, 43 L. R. A. 114. But see, contra, Duffies v. Duffies, 76 Wis. 371, 45 N. W. 523, 20 Am. St. Rep. 79, 8 L. R. A. 420. See, generally, 1 Am. & Eng. Enc. Law (2d Ed.) 166, and note in 46 Am. St. Rep. 472. 222 HUSBAND AND WIFE. § 107 existed at common law, and the only effect of the stat- utes is to make it enforceable.^ ^^ Where a man's wife is kept away from him in cus- tody against her will, he may recover hex person by the writ of habeas corpus,^^^ but not where she remains away from him voluntarily and without restraint.^^'^ It is said that a wife has a corresponding right, but there seem to be no decisions to that effect.^ ^* § 107. Same — ^Alienation of affections. A true marriage relation being founded upon mutual affection, it is plainly a grievous wrong for any one to mar this relation by depriving either consort of the affections of the other; and it is held that a husband may, at common law, maintain an action against one who alienates his wife's affections.^^^ The alienation of affections is usually accompanied by inducing the wife to leave her husband, and sometimes by criminal con- 355 That the right exists at common law and is simply made en- forceable by the statutes, see Foot v. Card, 58 Conn. 1, 18 Atl. 1027, 8 Am. St. Rep. 258, 6 L. R. A. 829, Woodruff , Oas. 189; Betser v. Betser, 186 111. 537, 58 N. B. 249, 78 Am. St. Rep. 303, 52 L. R. A. 630; Dietzman v. Mullin, 108 Ky. 610, 57 S. W. 247, 94 Am. St. Rep. 390, 50 L. R. A. 808; Wolf v. Frank, 92 Md. 138, 48 Atl. 132, 52 L. R. A. 102; Hodgkinson v. Hodgkinson, 43 Neb. 269, 61 N. W. 577, 47 Am. St. Rep. 759, 27 U R. A. 120; Smith v. Smith, 98 Tenn. 101, 38 S. W. 439, 60 Am. St. Rep. 838. 366 Rex V. Wlnton, 5 Term R. 89; 15 Am. & Eng. Ene. Law (2d Ed.) 181. 36T Rex V. Clarkson, 1 Strange, 444; Rex v. Mead, 1 Burrows, 542; Ex parte Sandilands, 12 Eng. Law & Bq. 463; Reg. v. Leg- gatt, 18 Q. B. 781, 83 B. C. L. 781. 358 15 Am. & Bng. Bnc. Law (2d Bd.) 181. 850 See, generally, 15 Am. & Bng. Enc. Law (2d Ed.) 862, and note in 44 Am. St. Rep. 845. § 107 CONSEQUENCES OF MARRIAGE. 223 versationf" but an action may be maintained for tke alienation of the wife's affections, although she neither leaves her husband nor yields her person to the defend- ant.^®^ The gist of the action, as in the case of other wrongs of this character, is loosely said to be the loss of the consortium, that is, of the companionship, so- ciety, or assistance of the wifef*^ but more specifically and correctly it is the loss of the affections alone, with whatever follows therefrom, loss of the wife's society and services not being a necessary consequence. It is not necessary, in such action, to prove any actual pe- cuniary loss.^^^ It has been held that the wife cannot, at common law, maintain a corresponding action for the alienation of the affections of her husband;^®* but she may do so 360 See Prettyman v. Williamson, 1 PenBewill (Del.) 224, 39 Atl. 731; Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843. 301 Adams T. Main, 3 Ind. App. 232, 29 N. B. 792, 50 Am. St. Rep. 266. See, also, Rinehart v. Bills, 82 Mo. 534, 52 Am. Rep. 385, Woodruff Gas. 187. The doctrine of the text is denied in Lellis v. Lambert, 24 Ont. App. 653, quoted with approval in Houghton v. Rice, 174 Mass. 366, 54 N. B. 843, 47 L. R. A. 310, 75 Am. St. Rep. 351. 302 See Adams v. Main, 3 Ind. App. 232, 29 N. E. 792, 50 Am. St. Rep. 266; Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843. 363 Adams v. Main, 3 Ind. App. 232, 29 N. E. 792, 50 Am. St. Rep. 266. 364 See 15 Am. & Bng. Enc. Law (2d Ed.) 864, and cases cit«d in note 353, supra. It was so held in Houghton v. Rice, 174 Mass. 366, 54 N. B. 843, 75 Am. St. Rep. 351, 47 L. R. A. 310; but the de- cision seems to have been based upon the doctrine that no action may be maintained by either husband or wife for mere alienation, without loss of consortium, — a doctrine opposed by the overwhelm- ing weight of authority. 224 HUSBAND AND WIPE. § 108 uuder modern statutes removing her common-law dis- abilities.^ ^^ Actions for alienation of affections alone are rare, the action usually being for this wrong combined with enticement or criminal conversation. § 108. Same — Criminal conversation. A husband may, at common law, maintain an action, known as an action for criminal conversation, against a man who has sexual intercourse with his wife.^*"* Criminal conversation with another man's wife is a wrong entirely distinct from that of inducing a wife to leave her husband, or of alienating a wife's affections, though these Avrongs frequently accompany each other, and are often made the subject of the same action. The gist of this particular action is the invasion of the husband's exclusive right of marital intercourse with his wife, and it is immaterial whether the inter- see In Postlewaite v. Postlewaite, 1 Ind. App. 473, 28 N. E. 99, and Beach v. Brown, 20 Wash. 266, 55 Pac. 46, 72 Am. St Rep. 98, 43 L. R. A. 114, it was held that a divorced wife might maintain an action for the alienation of the affections of her former husband. In Holmes v. Holmes, 133 Ind. 386, 32 N. E. 932, it was held that a wife might maintain an action at common law for the alienation of the affections of her husband. In numerous cases, actions by a wife for the alienation of the husband's affections, and causing him to desert her, have been maintained. See Foot v. Card, 5S Conn. 1, 18 Atl. 1027, 18 Am. St. Rep. 258, Woodruff Cas. 189, and cases cited in note 354, supra. 366 See cases cited in notes immediately following, and see, gen- erally, 8 Am. & Bng. Enc.-Law (2d Ed.) 260. The common-law action was abolished in England In 1857 by the Divorce and Matrimonial Causes Act, which, however, gave a some- what similar substitute remedy. See Keyes v. Keyes, L. R. 11 Prob. Div. 100. § lOS CONSEQUENCES OP MARRIAGE. 225 course be accomplished with the consent of the wife or by force.^^' But if the husband consented to or con- nived at the seduction, he cannot recover.^ ^^ In esti- mating damages, the jury may take into account the character and conduct of the plaintiff as a husband, as Avell as that of the wife, together with the nature of the relations between them, as harmonious or otherwise, 367Bedan v. Turney, 99 Cal. 649, 34 Pac. 442; Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307, WoodrufE Gas. 193; Egbert v. Green- wait, 44 Mich. 245, 6 N. W. 654, 38 Am. Rep. 260; Jacobsen v. Sid- dal, 12 Or. 280, 7 Pac. 108, 53 Am. Rep. 360. See, also, Evans v. O'Connor, 174 Mass. 287, 54 N. E. 557, 75 Am. St. Rep. 316. For a discussion of the nature of this injury, with an extensive review of the cases, see Tinker v. Colwell, 193 U. S. 473, affirming 169 N. Y. 531, 62 N. E. 668, 98 Am. St. Rep. 587, 58 L. R. A. 765. In England it has been held that the gist of the action is the loss of the comfort and society of the plaintiff's wife, and that, therefore, the husband cannot recover if he was living apart from the wife at the time of the alleged wrong. Weedon v. Timbrell, 5 Term R. 357. Expressions are found, also, in some of the American decisions, to the effect that the gist of the action is the loss of the consortium; these cases, however, at the same time recognizing that the real injury is the invasion of the husband's exclusive mar- ital right. See Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Cross v. Grant, 62 N. H. 675, 13 Am. St. Rep. 607. And in this country it is held that the fact that the parties were living apart does not affect the husband's right. Michael v. Dunkle, 84 Ind. 544, 43 Am. Rep. 100; Cross v. Grant, 62 N. H. 675, 13 Am. St. Rep. 607. See, contra, the early ease. Pry v. Derstler (1798) 2 Yeates (Pa.) 278. So, also, the husband may recover for the rape of his wife, though he would not, in such case, ordinarily lose her comfort and society. See Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654, 38 Am. Rep. 260. Again, where the wife consented to the intercourse, the husband may condone her offense and continue to live with her without losing his right to recover from her se- ducer. Sikes V. Tippins, 85 Ga. 231, 11 S. E. 662. 368 Cook V. Wood, 30 Ga. 891, 76 Am. Dec. 677; Rea v. Tucker, 51 111. 110, 99 Am. Dec. 539. See, also, Gleason v. Knapp, 56 Mich. 291, 22 N. W. 865, 56 Am. Rep. 388. „ Long, D. R.— 15. 236 HUSBAND AND WIFE. § 108 and also the circumstances of the seduction, and, ac- cording to the weight of authority, the pecuniary con- dition and social rank of the parties.^"*' At common law, the wife had no corresponding right of action against the seductress of her husband,*^" but possibly such action may be maintained under the stat- utes enlarging the rights and privileges of married women .^^^ The better doctrine, however, seems to be that the wife has no such right, even under the modern statutes. 309 See Keyse v. Keyse, L. R. 11 Prob. Div. 100; Prettyman v. Wil- liamson, 1 Pennewill (Del.) 224, 39 Atl. 731; Rea v. Tucker, 51 111. 110, 99 Am. Dec. 539; Peters v. Lake, 66 111. 206, 16 Am. Rep. 593; Cross V. Grant, 62 N. H. 675, 13 Am. St. Rep. 607; Torre v. Sum- mers, 2 Nott & McC. (S. C.) 267, 10 Am. Dec. 597; Shattuck v. Hammond, 46 Vt. 466, 14 Am. Rep. 631. The mere fact that there was no affection between the plaintiff and his wife (Dallas v. Sellers, 17 Ind. 479, 79 Am. Dec. 489), or that the plaintiff had himself been guilty of adultery (Rea v. Tucker, 51 111. 110, 99 Am. Dec. 539), is no defense, though these facts may be shown in miti- gation of damages. 3T0 Doe V. Roe, 82 Me. 503, 20 Atl. 83, 17 Am. St. Rep. 499, 8 L. R. A. 833. 371 It was In terms so held in Seaver v. Adams, 66 N. H. 142, 19 Atl. 776, 49 Am. St. Rep. 597. It is not clear, however, whether the court did not consider the action as substantially the same as an action for enticing a,way the husband and depriving the wife of his society, which is distinct from an action for criminal con- versation. In Kroessin v. Keller, 60 Minn. 372, 62 N. W. 438, 51 Am. St. Rep. 533, 27 L. R. A. 685, Woodruff Gas. 195, it was held that a wife could not maintain, either at common law or under the statutes, an action against a woman with whom the husband had committed adultery. This appears to be the only case in which the very obvious distinction between an action for criminal conversation and an action for enticement is clearly recognized and acted upon, and the reasoning of the court seems conclusive. In Hart v. Knapp, 76 Conn. 135, 55 Atl. 1021, 100 Am. St. Rep. 989, it was held that a wife might maintain an action against another woman for alien- 109 CONSEQUENCES OP MARRIAGE. 227 In order to sustain an action for criminal conversa- tion, tliere must be actual proof of the marriage, a mere presumption of marriage not being sufficient. The rule in such actions is the same as in criminal prosecutions for bigamy or adultery.^'' ^ A man engaged to marry cannot maintain an action for the seduction of his betrothed, or the alienation of her a£fections, although in such case he has undoubtedly suffered a grievous wrong.^^* But a man who is in- duced to marry a woman, in the belief that she is virtu- ous, by the false representations of a man by whom she is in fact pregnant, may maintain an action for dam- ages against the wrongdoer.^^* § 109. Injuries to wife's person or reputation. Two causes of action may arise at common law from an injury to the person or reputation of the wife, com- mitted before or after marriage, such as assault and bat- tery, slander, malicious prosecution, and the like. One of these is the injury directly to the wife herself, and the other is the consequential injury to the husband, con- sisting in the loss of the wife's society or services, or any expense to which he may have been put.^"^ ating the affections of her husband, committing adultery with him, and causing him to abandon her, and that it was no defense that the husband was the active and aggressive party, and that the defendant yielded to his persuasions. 372 3 Bl. Comm. 140. See ante, § 56. 373 Case V. Smith, 107 Mich. 416, 65 N. "W. 279, 61 Am. St. Rep. 341. 374Kujec V. Goldman, 150 N. Y. 176, 44 N. B. 773, 34 L. R. A. 156. 375 See, generally, Cooley, Torts, 226, 227; Schouler, Dom. Rel. § 228 HUSBA]>ID AND WIFE. § 109 For the injury to the wife herself the husband and wife may s-ue jointly at common law. The action, in such case, is regarded as the action of the wife, she being the "meritorious cause" of the action; but since she cannot sue alone at common law, her husband must join in the suit.^'" As was said by the court in a re- cent case :^" "At common law, on account of the well- settled doctrine of marital unity, the right of a mar- ried woman to prosecute an action in her own name for the redress of personal injuries was denied. The cause of action for a personal injury to a married woman, whether committed before or after marriage, at com- mon law, belonged to her; but, on account of the dis- ability of coverture, she had no remedy unless the hus- band joined in bringing the suit for conformity. The right of action was hers, but, owing to the legal fiction of the unity of husband and wife, she could not assert it." The damages, however, if recovered during cov- erture, belong to the husband, as in the case of any other chose in action.'^* If before or pending the ac- 77; Smith v. St. Joseph, 55 Mo. 456, 17 Am. Rep. 660; notes in 94 Am. Dec. 591. 376 Ballard v. Russell, 33 Me. 620, 54 Am. Dec. 620; "Wolf v. Bauereis, 72 Ma. 481, 19 Atl. 1045, 8 L. R. A. 680; Bennett v. Ben- nett, 116 N. Y. 584, 23 N. B. 17; Hawkins v. Front St. Cable R. Co., 3 Wash. 592, 28 Pac. 1021, 28 Am. St. Rep. 72. 377 Smith V. Smith, 98" Tenn. 101, 38 S. W. 438, 60 Am. St. Rep. 838. 378 Shaddock v. Clifton, 22 Wis. 114, 94 Am. Dec. 588. Since the hushand is entitled to the damages recovered, his ad- mission of facts tending to defeat the action are competent evi- dence. Shaddock v. Clifton, 22 Wis. 114, 94 Am. Dec. 588. But see Burrell Tp. v. Uncapher, 117 Pa. 353, 11 Atl. 619, 2 Am. St. Rep. 664. And a discharge or release hy the husband is a bar to the action. Ballard v. Russell, 33 Me. 620, 54 Am. Dec. 620; Beach § 109 CONSEQUENCES OF MARRIAGE. 229 tion, the husband dies, the cause of action survives to the Avife, since the injury is to her.^'® If the wife dies, the cause of action or suit abates unless preserved by statute, since a right of action for personal injuries dies with the person.^^" The various married woman's acts have greatly affect- ed the foregoing rules of the common law. In many, perhaps most, of the states, the wife may sue alone for torts committed against her, and the damages recov- ered are her separate property.^®^ In other states the common law remains in force to a greater or less ex- tent.3«2 V. Beach, 2 Hill (N. Y.) 260, 38 Am. Dec. 584. So, also, his con- tributory negligence may defeat the action, at least where the fommon-law rules remain in force. Pennsylvania R. Co. v. Good- enough, 55 N. J. Law, 577, 28 Atl. 3, 22 L. R. A. 460. See, also, McFadden v. Santa Ana, O. & T. St. Ry. Co., 87 Cal. 464, 25 Pac. 681, 11 L. R. A. 252. But see Louisville, N. A. & C. Ry. Co. V. Creek, 130 Ind. 139, 29 N. E. 481, 14 L. R. A. 733; Davis v. Guarnieri, 45 Ohio St. 470, 15 N. B. 350, 4 Am. St. Rep. 548. But the wife's release will not defeat the joint action. Snashall v. Met- ropolitan R. Co., 8 Mackey (D. C.) 399, 10 L. R. A. 746. 3T9 15 Am. & Eng. Enc. Law (2d Ed.) 859. 380 15 Am. & Eng. Enc. Law (2d Ed.) 859; Louisville & N. R. Co. v. McElwain, 98 Ky. 700, 34 S. W. 236, 34 L. R. A. 788. 381 See 15 Am. & Eng. Enc. Law (2d Ed.) 859; 10 Enc. PI. & Pr. 206; Harmon v. Old Colony R. Co., 165 Mass. 100, 42 N. B. 505, 52 Am. St. Rep. 499; Filer v. New York Cent. R. Co., 49 N. Y. 47, 10 Am. Rep. 327; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17; Walker v. City of Philadelphia, 195 Pa. St. 168, 45 Atl. 657, 78 Am. St. Rep. 801. 382 10 Bnc. PI. & Pr. 207. The statutes relating merely to prop- erty rights and the wife's contracts do not change the common- law rules as to actions for personal Injuries. See Snashall v. Met- ropolitan R. Co., 8 Mackey (D. C.) 399, 10 L. R. A. 746; Ballard V. Russell, 33 Me. 196, 54 Am. Dec. 620; Shaddock v. Clifton, 22 Wis. 114, 94 Am. Dec. 588. 230 HUSBAND AND WIPE. § 109 For the separate loss or damage resulting consequen- tially to the husband from the injury to the wife, as in the loss of her society or services, or in putting him to expense, the husband may bring a separate action in his own liame.^^^ This right of action is not taken away by the statutes enabling a married woman to en- gage in business on her own account.*** Except in so far as statutes give her the right to the fruits of her own labor and services,**" the wife has no right of re- 383 15 Am. & Eng. Enc. Law (2d Ed.) 861; MeWhirter v. Hatten, 42 Iowa, 288, 20 Am. Rep. 618; Bowdle v. Detroit St. Ry. Co., 103 Mich. 272, 61 N. W. 529, 50 Am. St. Rep. 366; Skoglund v. Min- neapolis St. R. Co., 45 Minn. 330, 47 N. W. 1071, 11 L. R. A. 222; Smith V. St. Joseph, 55 Mo. 456, 17 Am. Rep. 660; Furnish v. Mfs- souri Pac. R. Co., 102 Mo. 669, 15 S. W. 315, 22 Am. St. Rep. 800; Holleman v. Harward, 119 N. C. 150, 25 S. E. 972, 56 Am. St. Rep. 572, 34 L. R. A. 803; Walker v. City of Philadelphia, 195 Pa. 168, 45 Atl. 657, 78 Am. St. Rep. 801; Hunt v. Winfield, 36 Wis. 154, 17 Am. Rep. 482; Selleck v. City of Janesville, 104 Wis. 570, 80 N. W. 944, 76 Am. St. Rep. 892. The term "society," in this connection, means such capacities for usefulness, aid, and comfort, as a wife, as the wife possessed at the time of the injury. Any diminution of these capacities by the defendant's tort constitutes a basis for an award of damages. Fur- nish V. Missouri Pac. R. Co., 102 Mo. 669, 15 S. W. 315, 22 Am. St. Rep. 800. The loss of prospective offspring by the wife's miscarriage cannot be considered as an element of damages to the husband. Butler V. Manhattan R. Co., 143 N. Y. 417, 38 N. E. 454, 26 L. R. A. 46. The wife's contributory negligence is a defense to the husband's ac- tion. Chicago, etc., R. Co. v. Honey, 63 Fed. 39, 26 L. R. A. 42. 384 Citizens' St. R. Co. v. Twiname, 121 Ind. 375, 23 N. E. 159, 7 L. R. A. 352; MeWhirter v. Hatten, 42 Iowa, 288, 20 Am. Rep. 618; Kelley v. New York, N. H. & H. R. Co., 168 Mass. 308, 46 N. E. 1063, 60 Am. St. Rep. 397, 38 L. R. A. 631; Filer v. New York Cent. R. Co., 49 N. Y. 47, 10 Am. Rep. 327. 385 See Fleming v. Town of Shenandoah, 67 Iowa, 505, 25 N. W. 152, 56 Am. Rep. 354; Harmon v. Old Colony R. Co., 165 Mass. 100, 42 N. E. 505, 52 Am. St. Rep. 499. § 110 CONSEQUENCES OF MARRIAGE. 231 covery for the loss of her own labor or services,^*® nor can she be joined with the husband in his action f^'^ nor should the tAvo causes of action just considered be joined in the same suit.^*^ The effect of the wife's death as a result of the tort upon the husband's right to recover for the loss of the consortium will depend upon whether or not death was instantaneous. If death results immediately from the injury, the husband cannot recover ; but if death is not immediate, he may recover for the loss of the wife's society and services from the date of the injury until the wife's death.^^' At common law, neither spouse can recover for the instantaneous death of the other as the result of a tort, but such a right is now generally given by statute.^'" § 110. Injuries to wife's property. At common law, since by the marriage the husband becomes the owner of his wife's personal property in possession, he or his representative sues alone for in- juries to such property committed during coverture, the injury in such- case being an injury to his property. So, also, for injuries to the wife's real estate affecting 386 Filer v. New York Cent. R. Co., 49 N. Y. 47, 10 Am. Rep. 327; Uransky v. Dry Dock, E. B. & B. R. Co., 118 N. Y. 304, 23 N. B. 451, 16 Am. St. Rep. 759. 387 1 Bishop, Mar. Women, § 913; Todd v. Redford, 11 Mod. 264. 388 1 Bishop, Mar. Women, § 913. 388 Baker v. Bolton, 1 Camp. 493; Louisville & N. R. Co. v. McEl- wain, 98 Ky. 700, 34 S. W. 236, 34 L. R. A. 788. In this case, how- ever, it was held that the husband's right was merged in the more extensive right to recover for the wife's death, given by statute. 390 See 8 Am. & Eng. Enc. Law (2d Ed.) 851; Cooley, Torts, 262; notes in 70 Am. St. Rep. 669, and 34 L. R. A. 788. 232 HUSBAND AND WIFE. S 111 its enjoyment merely. Since he has a right to the enjoyment of the property, any injury thereto is an injury to him alone, and does not affect the wife. But for waste, which is a permanent injury to the inher- itance, the husband and wife must sue jointly, and, if he dies before or pending suit, the action survives to her or her heir. The injury in this case is to the wife, but the husband must join in the suit since the wife cannot sue alone. For injuries to the wife's real or personal property committed before marriage, husband and wife may sue jointly. If he dies, the cause of ac- tion survives to her. If she dies, it survives to her per- sonal representatives or heirs.^^^ Under the statutes taking away the husband's right to the wife's property, any cause of action for a tort to her real or personal property belongs to her and con- stitutes a part of her separate estate.^^^ VI. LiABiuTT OF Husband and Wife to Thied Pebsons. § 111. On the husband's contracts. Since marriage imposes no contractual disability upon the husband, he is, of course, liable on his own contracts, whether made before or after the marriage.^^^ He is also bound by contracts made by his wife as his agent.^** 3911 Chitty, Plead. (16th Am. Ed.) 83-85; 1 Bishop, Mar. Women, §§ 91, 576-578; Schouler, Dom. Rel. |§ 77, 89; 10 Enc. PI. & Pr. 209-216. 3!>2 See Plerson v. Smith, 9 Ohio St. 554, 75 Am. Dec. 486. 383 15 Am. & Eng. Enc. Law (2d Ed.) 867. The husband cannot escape liability on his own contracts by making them in his wife's name. Shields v. Casey, 155 Pa. 253, 25 Atl. 619, 35 Am. St. Rep. 879. so* See post, § 114, and ante, § 99. § 112 CONSEQUEiNCES OP MARRIAGE. 233 Where a husband executes a contract jointly with his wife, he is bound thereby, although the contract, by reason of her disability, is not binding on the wife.^^'^ The wife, of course, is not liable on the contracts of her husband. § 112. On the wife's antenuptial contracts. At common law the husband is liable during coverture for all debts contracted by the wife before marriage.*^* This liability seems to follow necessarily from the fact that, since the existence of the wife is merged in that of the husband, he must be held liable, or no one can be, and the law will not permit the rights of creditors to be defeated by the marriage of their debtor. The husband's liability is also placed upon the ground that, since he acquires by the marriage the absolute title to her personalty, and all the income from her realty, it is proper that he should pay her debts. In other words, he takes the wife and her property cum onere.^^'' His liability does not depend, however, upon his having ob- tained property from her by the marriage, for he is lia- ble, whether he so obtained any property or not.**^ 395 Browning v. Carson, 163 Mass. 255, 39 N. E. 1037. 396 1 Bl. Comm. 443; 1 Bishop, Mar. Women, § 58; 2 Bishop, Mar. Women, §§ 308-318; 2 Kent, Comm. 143; Schouler, Dom. Rel. §§ 56, 57; 15 Am. & Bng. Enc. Law (2d Ed.) 867-871; Kies v. Young, 64 Ark. 381, 42 S. W. 669, 62 Am. St. Rep. 198; Allen v. McCulIough, 2 Helsk. (Tenn.) 174, 5 Am. Rep. 27. See note in 60 Am. Dec. 259. 397 See 2 Bishop, Mar. Women, §§ 312, 313. 398 1 Bishop, Mar. Women, § 313. The husband is liable for the wife's antenu"ptial debts although by antenuptial contract each may have relinquished all interest in the property of the other. Powell v. Manson, 22 Grat. (Va.) 178. 234 HUSBAND AND WIFE. § 112 The right of the wife's creditors to enforce their claims against the husband cannot be taken away, without their consent, by an antenuptial contract between husband and wife providing that he shall not be liable for her debts.399 The husband's liability for his wife's debts continues only during coverture. If the wife dies without the debt having been collected or reduced to a judgment against the husband and wife, the husband's liability ceases, although he may retain her fortune accruing to him by the marriage.**" So, also, if the husband dies first, his estate is not liable. In such case, the surviv- ing wife again becomes liable, although by her mar- riage she may have lost to her husband her fortune, on the credit of which the debts were contracted.^"^ An action to recover an antenuptial debt of the wife must be brought against the husband and wife jointly, the husband being made defendant because he is liable for the debt, and the wife because the debt is in fact her3.*»2 The fact that the husband was an infant at the time of the marriage is no defense to an action against him 399 Coles T. Hurt, 75 Va. 399. *ooLamb v. Belden, 16 Ark. 539, Woodruff Gas. 65; Williams v. Kent, 15 Wend. (N. Y.) 360; Cole v. Shurtleff, 41 Vt. 311, 98 Am. Dec. 587; Hawthorne v. Beckwith, 89 Va. 786, 17 S. E. 241. It has been held the divorce of the parties does not terminate the husband's liability (Allen v. McCullough, 2 Heisk. [Tenn.] 174, 5 Am. Rep. 27), but this seems doubtful. «i 2 Bishop, Mar. Women, § 311. *02i5 Am. & Eng. Enc. Law (2d Ed.) 868; Gray v. Thacker, 4 Ala. 136, Woodrufe Gas. 66; Keller v. Hicks, 22 Cal. 457, 83 Am. Dec. 78; Cole v. Seeley, 25 Vt. 220, 60 Am. Dec. 258. § 112 CONSEQUENCES OF MARRIAGE. 235 for his wife's antenuptial debts. His liability does not depend upon any contract on his part, but is simply an incident to the marriage.*"* The infancy of the wife, however, at the time of making the contract, may be a good defense. In order to render the husband liable, the wife's contract must have been binding upon her before the marriage,*"* and, if her infancy would have been a good defense to an action against her while sole, the husband cannot be held liable; but if the contract was binding upon her, although an infant, as in the case of a contract for necessaries, the husband is lia- ble.*"* The statute of limitations is, of course, a good defense to the action, and although the cause of action does not accrue against the husband until the marriage, the statute begins to run in his favor from the time the cause of action accrued against the wife.*"^ The common-law rule as to the husband's liability has been changed in some states by statutes providing in express terms that the husband shall not be liable for the wife's antenuptial debts.*"'' In other states it is provided that the husband shall be liable only when he has received property from the wife by the marriage, 403 Roach V. Quick, 9 Wend. (N. Y.) 238; Cole v. Seeley, 25 Vt. 220, 60 Am. Dec. 258. 404 A contract not enforceable against the wife before maxriage cannot be enforced against the husband. Musick v. Dodson, 70 Mo. 624, 43 Am. Rep. 780. In this case it was held that a contract made by a woman while married, and hence incapable of contracting, was not binding on her subsequent husband. 405 Cole V. Seeley, 25 Vt. 220, 60 Am. Dec. 258. 406 15 Am. & Eng. Bnc. Law (2d Ed.) 871; Beck v. Pierce, L. R. 23 Q. B. Div. 316; Powers v. Southgate, 15 Vt. 471, 40 Am. Dec. 691. 407 Consult the several statutes. 236 HUSBAND AND -^WE. § 114 and then only to the extent of the value of the prop- erty so received.*"® It is held, however, that the hus- band's common-law liability is not taken away by im- plication by statutes securing to the wife the right to her property.*"® § 113. On the wife's postnuptial contracts — ^In general. At common law, as we have seen, a married woman cannot make a valid contract. Contracts made by her, with such exceptions as have already been discussed, are absolutely void, and are not binding either upon her or upon her husband. Under modern statutes removing the wife's common-law disability, her contracts are valid and bind her.*i" They are not, of course, bind- ing upon the husband, for they are not his contracts. § 114. Same — Contracts made by wife as husband's agent. A married woman, either at common law or under the statutes, may bind her husband by a contract made by her as his agent. The principles governing the wife's agency for her husband have been considered in a pre- vious section. In general, the wife may bind her hus- band by such contracts, and by those only, as he has authorized her, either expressly or by implication, to make for him, or as have been ratified by him, if made without previous authority. As in the case of any other agent, the wife's power to bind her husband as 408 Clark v. Miller, 88 Ky. 108, 10 S. "W. 277. *09Kies V. Young, 64 Ark. 381, 42 S. W. 669, 62 Am. St. Rep. 199; Connor v. Berry, 46 111. 370, 95 Am. Dec. 417. See, contra, Biery v. Zlegler, 93 Pa. 367, 39 Am. Rep. 756. "0 See ante, § 83. § 114 CONSEQUENCES OP MARRIAGE. 237 his agent is determined entirely by tlie extent of her authority from him.'"^^ In addition to what has already been said on the sub- ject of the' wife's implied authority to bind her husband by contracts made by her, it shoul«l be noted that the presumption, arising from the fact of cohabitation or a previous course of dealing, that the ^yife has author- ity to bind her husband, may be destroyed by the hus- band's giving express notice to third persons not to extend credit to the wife on his account. If, after re- ceiving such notice, a third person sells goods to the wife upon the husband's credit, the husband is not lia- ble,*^^ unless such goods were necessaries which he has 411 See ante, § 99; 15 Am. & Eng. Enc. Law (2(i Ed.) 871-875. "2 Etherington v. Parrot, 1 Salk. 418, 2 Ld. Raym. 1006; Keller v. Phillips, 39 N. Y. 351; Segelbaum v. Bnsminger, 117 Pa. 248, 10 Atl. 759, 2 Am. St. Rep. 662. See, also. Smith v. Smith, 73 Mich. 445, 41 N. W. 499, 16 Am. St. Rep. 594. In Keller v. Phillips, 39 N. Y. 351, in holding that a husband was not liable for goods sold to his wife after express notice to the plaintiff not to credit her, the court, by Woodruff, J., said: "The rules of law relating to the power of the wife to bind her husband to payment for goods purchased by her for the use of herself and the family, are well settled. The husband is bound to provide for her and them whatever is necessary for their suit- able clothing and maintenance, according to his and their station and condition in life, and, ordinarily, he will be presumed to as- sent to her making such purchases as, in the conduct of the do- mestic concerns, are proper for her management and supervision; but he is at liberty to withhold such assent, and destroy such pre- sumption, by an express prohibition, and, if he does so, no one, having notice thereof, may trust the wife in reliance upon his credit, unless the husband so neglects his own duty that supplies become absolutely necessary according to their condition. "In the present case, therefore, the sale of the goods being proved, or not being denied by the defendant, the burden of proof was upon the defendant to show that the credit was given against his ex- 238 HUSBAND AND WIPE. § 114 failed to supplj^,*^^ or unless^ notwithstanding his pro- hibition, he ratifies the wife's contract and agrees to pay for the goods. In such case the mere fact that the husband permits his wife to retain the goods, and does not return them to the tradesman, or even give notice to the tradesman to come for them, does not amount to a ratification."* press dissent, and notice thereof to the plaintiffs. This being proved, the burden was upon the plaintiffs to show that the de- fendant did not suitably provide for his family according to his and their condition. Of that the plaintiffs were not to be the judges, except at the risk of establishing it by proof, and of that they offered no testimony whatever, but oh the trial objected to the defendant's proving affirmatively that he did so, and the jus- tice excluded evidence offered by him tending to show in what mode, and in part to what extent, that provision was made. The defend- ant was not bound to show affirmatively that he did so provide, and yet, so far as he appears to have been permitted, his testimony went to show that he did make suitable provision. "Nor is it enough that the articles sold are, in their nature and description, necessary and suitable for the uee of the wife and family. If they were not so, there would be no presumption of the husband's assent to the purchase in any case. It is indis- pensable, where the vendor has been forbidden to sell upon the wife's request, on the husband's credit, that the vendor show, not only that the goods were in their nature suitable and necessary, but that the husband neglected his duty to provide suppliep, and that, for that reason, they were necessary. "These rules are elementary. Modern legislation, in preserving to the wife all her own property, has taken away some of the grounds upon which the duty of the husband was placed by the common law, but it has not yet gone so far as to invest >the wife with a discretion which the husband cannot control, and enable her to spend his property or Involve him in debt against his will." *i3 Notice by a husband to a tradesman not to sell goods to his wife on his credit will not relieve the husband from liability for necessaries so furnished, where the husband has not himself sup- plied his wife's wants. McGrath v. Donnelly, 131 Pa. 549, 20 Atl. 382. See, also, post, §§ 115, 123. *" Segelbaum v. Ensminger, 117 Pa. 248, 10 Atl. 759, 2 Am. St. § lis CONSEQUENCES OF MARRIAGE. 239 § 115. Same — "Wife's contracts for necessaries — In general. The power of a wife to bind her husband for contracts made hy her as his agent is limited only by the extent of the authority conferred upon her by him; it is not confined to contracts for necessaries.^^^ But Avhile con- tracts not for necessaries bind the husband only when authorized or ratified by him, this is not always true Rep. 662. In so holding the court said: "It is difficult to under- stand how there could be ratification in the face of such notices as were given in evidence, from mere acquiescence on the part of the defendant [the husband], — that is, simply permitting the goods to remain in the house; and there certainly was no evidence ol express ratification. But we do not understand that there is any duty to return the goods resting upon the defendant when they were sold after express notice not to sell them, nor to notify the plaintiff that he may remove them, in order to relieve the defendant from liability. After notice not to sell, the plaintiff sold to the wife at his peril. He could not charge the husband as his debtor for goods sold to the wife simply because he delivered the goods to the wife. A silent acquiescence by the husband in such a delivery was no acquiescence in a delivery to himself. If the seller chose to take his chance of recovering from the husband by a delivery to the wife after notice not to deliver to her, he had a right to take such a chance, but he could not fmprove it into a right of action against the husband simply because the husband was an indifferent spectator. No duty whatever was imposed upon him by such a delivery. He was not-bound to remain out of his house in order to prevent an Implication of ratification arising from the user of the articles by the mere occupancy of his own home. [The articles were carpets and house furnishings.] Nor was he in any manner bound to abstain from the use of articles thus voluntarily placed in his house by the plaintiff against his own will. He was subject to no duty to the plaintiff in such circumstances, and hence cannot be held responsible as for the breach of a duty." But where the husband is present when the purchase Is made, and by his conduct assents to it, he will be liable, notwithstanding a previous notice to the merchant not to trust the wife. Kriegler V. Smith, 13 Mont. 235, 33 Pac. 937. "5 See ante, § 99. 240 HUSBAND AND WIFE. § US in the case of contracts for necessaries. These contracts stand upon a peculiar footing and call for careful con- sideration, the subject being of great importance.*^® It is M'ell settled that, even without any authority from her husband, either express or implied, a wife may bind her husband in certain circumstances by con- tracts for necessaries for herself and children. For the purpose of obtaining such necessaries, where the hus- band has neglected or refused to supply them, she is authorized by law to pledge his credit. This power grows out of his duty to support her. In thus supply- ing her wants the wife acts in some respects as her husband's agent, but her authority comes rather from the law, which obliges the husband to support his Avife, than from him.*^^ And he may be bound, even though he has expressly forbidden her to contract for him. The law invests her with an agency of necessity when the husband fails, without excuse, to provide for her.*^* 416 For monographic notes on the liability of husband or wife for necessaries supplied to the wife, see 98 Am. St. Rep. 627, and 65 L. R. A. 529. See, also, note in 10 A-m. Dec. 462. 417 Hanover v. Turner, 14 Mass. 227, 7 Am. Dec. 203; Cunningham V. Reardon, 98 Mass. 538, 96 Am. Dec. 670; Raynes v. Bennett, 114 Mass. 424; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362; Morrison v. Holt, 42 N. H. 478, 80 Am. Dec. 120; Ray y. Adden, 50 N. H. 82, 9 Am. Rep. 175. 418 Schouler, Dom. Rel. § 65. In Bergh v. Warner, 47 Minn. 250, 50 N. W, 77, 28 Am. St. Rep. 362, Mitchell, J., said: "The wife has, by virtue of the marriage relation alone, no authority to bind her husband by contracts of a general nature. She may, however, h6 his agent, and, as such, bind him. This agency is frequently spoken of as being of two kinds: (1) That which the law creates as the result of the mar- riage relation, by virtue of which the wife is authorized to pledge the husband's credit for the purpose of obtaining those necessaries § 115 CONSEQUENCES OP MARRIAGE. 241 Her authority in sucli case may be termed "constructive authority." But in order for the wife to have this extraordinary authority to bind her husband, two circumstances must concur : (1) The contract must de for necessaries.*^^ What constitute necessaries Avill be considered in the next sec- tion."" (2) The hushand must have failed to provide for the irife himself. In other words, he must be in default. In general, the husband has a right to determine what things shall be provided, and where they shall be pro- cured ; and when he has supplied the wife's needs suffi- ciently, though perhaps not generously nor in propor- tion to his ability, the wife cannot bind him, without his consent, for further supplies procured from third persons on his credit.* ^^ wbicli the husband himself has neglected or refused to furnish. (2) That which arises from the authority of the husband, expressly or impliedly conferred, as in other cases. The first of these, some- times called an 'agency in law' or an 'agency of necessity ' is not, ' accurately speaking, referable to the law of agency, for the liability of the husband in such cases is not at all dependent upon any au- thority conferred by him. He would, under such circumstances, be liable, although the necessaries were furnished to the wife against his express orders. The real foundation of the husband's liability in such cases is the clear legal duty of every husband to support his wife and supply her with necessaries suitable to her situation and his own circumstances and condition in life." "» Montague v. Benedict, 3 Barn. & C. 631, 10 E. C. L. 205; Clark V. Cox, 32 Mich. 204. 420 See post, § 116. 421 Clark V. Cox, 32 Mich. 204; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362; Mott v. Comstock. 8 Wend. (N. Y.) 544; Kimball v. Keyes, 11 Wend. (N. Y.) 33. Long, D. R.— 16. 242 HUSBAND AND WIFE. § 116 The burden of proving both that the articles furnished or services rendered were necessaries, arid that the hus- band was in defajilt, rests upon the party seeking to hold the husband liable.*'^ § 116. Same — What are necessaries. We have seen that in certain cases the husband can be held liable for supplies furnished or services ren- dered to the wife on his credit only when such supplies or services are what the law terms "necessaries." It is therefore a matter of importance to determine what is meant by this term. Generally speaking, necessaries are such food, clothing, medicine, or medical attendance, lodging, furniture, and the like, as the husband, consid- ering his ability and social position, ought to furnish for the comfort, health, and support of his wife and children. The meaning of the term is not confined to articles of food, clothing, etc., required to sustain life or preserve decency, but includes also such articles of utility, or even ornament, as are suitable to maintain the wife according to the estate and rank of her hus- band. Whether a particular article or service is a nec- essary depends very largely upon the means and social condition of the husband, and hence it is plain that the same article or service may be a necessary in one case and not in another. In other words, the meaning of the term is largely relative, and depends to a great ex- tent upon the circumstances of each particular case. <■ 22 Cunningham v. Reardon, 98 Mass. 538; Eames v. Sweetser, 101 Mass. 78; Raynes v. Bennett, 114 Mass. 424; Keller v. Phillips, 39 N. Y. 351. 5 116 CONSEQUENCES OP MARRIAGE. 243 A decision, therefore, in one case, that a particular ar- ticle was a necessary, will often be of very little value as authority in a subsequent case, in which the facts and circumstances are different.*^* The question whether the articles furnished the wife are necessaries or not is often one of some difficulty. In some cases it is undoubtedly the duty of the court to rule, as a matter of law, that certain articles are not necessaries for which a wife may pledge her husband's credit without his consent; but, except in very clear cases, the question is one of fact to be submitted to the jury.^^* In determining what are necessaries in a particular case, it is proper to take into account the extent of the defendant's estate, his income or ability to earn *23 See, generally, 15 Am. & Eng. Enc. Law (2d Ed.) 876; Raynes V. Bennett, 114 Mass. 424; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362; Cunningham v. Irwin, 7 Serg. & R. (Pa.) 247, 10 Am. Dec. 458; note in 10 Am. Deo. 462. Watches, jewelry, and other articles of personal adornment may he necessaries if appropriate to the husband's means and social position (Raynes v. Bennett, 114 Mass. 424) ; but not when beyond his means or already provided (Montague v. Benedict, 3 Barn. & C. 631, 10 E. C. L. 205). A set of false teeth (Oilman v. Andrus, 28 Vt. 241, 67 Am. Dec. 713), medical attendance (Carstens v. Hanselman, 61 Mich. 426, 28 N. W. 159, 1 Am. St. Rep. 606), or the services of a seamstress in family sewing (Plynn v. Messenger, 28 Minn. 208, 9 N. W. 759, 41 Am. Rep. 279), may be necessaries. A church pew has been held to be not a necessary. St. John's Parish v. Bron- son, 40 Conn. 75, 16 Am. Rep. 17. The wife's funeral expenses are necessaries, for which the husband may be held liable. Cunning- ham v. Reardon, 98 Mass. 538, 96 Am. Dec. 670; In re Stewart (N. J. Eq.) 22 Atl. 122. The services of counsel may be necessaries in some cases. 15 Am. & Eng. Enc. Law (2d Ed.) 877. 424 Raynes v. Bennett, 114 Mass. 424; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362. 244 HUSBAND AND WIFE. § 116 money, the manner in which he has been living, the mode of living and scale of expenditure of others in the social circle in which he moves, and other like cir- cumstances.*^^ The burden of proving that the articles were neces- saries rests upon the party seeking to hold the husband liable."6 It is obvious from what has already been said as to the meaning of the term "necessaries" that illustrative examples, except of the general character already given, ' would be of little value. One case, however, calls for particular notice. Loans or advances of money are not necessaries, even though used in paying for necessaries, and a person lending money to a married woman can- not recover therefor from the husband unless he request- ed or assented to the loan.*^^ At the same time, how- ever, it has been held that where the money is actually expended for such necessaries as the husband could have been required to pay for, a court of equity will put the person lending or advancing the money in the place of the person who supplied the necessaries, according to the doctrine of subrogation, and allow him to recover of the husband the amount so expended."^® 425Raynes v. Bennett, 114 Mass. 424; Clark v. Cox, 32 Mich. 204. 426 Phlllipson V. Hayter, L. R. 6 C. P. 38. 42T Skinner v. Tirrell, 159 Mass. 474, 34 N. E. 692, 38 Am. St. Rep. 447, 21 L. R. A. 673, Woodrutf Cas. 79; Walker v. Simpson, 7 Watts & S. (Pa.) 83, 42 Am. Dec. 216; Gill v. Read, 5 R. I. 343, 73 Am. Dec. 73; Marshall v. Perkins, 20 R. I. 34, 37 Atl. 301, 78 Am. St. Rep. 841. •i28Kenyon v. Farris, 47 Conn. 510, 36 Am. Rep. 86; Walker t. Simpson, 7 Watts & S. (Pa.) 83, 42 Am. Dec. 216. But see, contra, Skinner v. Tirrell, 159 Mass. 474, 34 N. E. 692, 38 Am. St. Rep. 447, 21 L. R. A. 673, Woodruff Cas. 79. § H7 CONSEQUENCES OP MARRIAGE. 245 It should be carefully noted that, even though an article purchased by the wife, or service engaged by her, may, when considered with reference to the estate and rank of the husband, fall within the class known as "necessaries," for example, food, decent clothing, or med- ical attendance, it must further appear that the article or service was in fact necessary in the particular case. A wife has no implied or constructive authority to pledge her husband's credit even for articles appropriate for her support and comfort if he has already supplied her wants himself.^ ^^ § 117. Same — Credit not given to husband. A husband is not bound for necessaries furnished to his wife, not on his credit, but on the credit of the wife herself,*^" or of a third person.*^^ This is for the ob- vious reason that, where the credit is given to the hus- band, the contract is made with him through the agency of the wife, and he is therefore bound, for it is his own contract; but where the credit is given to the wife or ■*29 Clark V. Cox, 32 Mich. 204. See ante, §§ 99, 115. *3.oBeiitley v. Griffin, 5 Taunt. 356, 1 B. C. L. 131; Gafford v. Dunham, 111 Ala. 551, 20 So. 346, Woodruff Cas. 75; Mitchell v. Treanor, 11 Ga. 324, 56 Am. Dec. 421. See, also, Mackinley v. Mc- Gregor, 3 Whart. (Pa.) 369, 31 Am. Dec. 522. The fact that the wife, by reason of coverture, is not liable on the contract for necessaries, does not render the husband liable where the credit was given to the wife. Gafford v. Dunham, 111 Ala. 551, 20 So. 346, Woodruff Cas. 75. A husband is not liable for goods purchased by his wife on her own credit for use in her separate business, in which she is en- gaged without his assent. Tuttle v. Hoag, 46 Mo. 38, 2 Am. Rep. 481. isi 15 Am. & Bng. Bnc. Law (2d Ed.) 892. 246 HUSBAND AND WIFE. § 117 to 7 N. W. 219, 21 Am. St. Rep. 605, is somewhat in conflict with the text. In this case a husband had conveyed his home and fur niture, constituting the bulk of his property, to his wife. She aft erwards refused to cohabit with him, and although she, for a time; allowed him a room in the house, she finally drove him from it, and moved away, and leased the house to strangers. It was held that she was guilty of extreme cruelty, entitling the husband to a divorce. Nonsupport by the husband Is in some states an independent ground for divorce. 47 Bonney v. Bonney, 175 Mass. 7, 55 N. B. 461, 78 Am. St. Rep. 473. In this case the husband was financially able to hire a nurse, though his wife opposed it. 48 Cowles V. Cowles, 112 Mass. 298. See, also, D'Agullar v. D'Aguilar, 1 Hagg. 773, 3 Eng. Ecc. 329; Eshbach v. Eshbach, 23 Pa. 343. § 137 DISSOLUTION OP MARRIAGE. 283 the plaintiff.**" The provocation, however, must be rea- sonably proportionate in s eriousness to the defendant's .conduct, Thus, it has been held that a wife may obtain a divorce from her husband for beating her, even though she provoked the assault by abusive words.^" It should be noted that a divorce is granted for cruel- ty, not as a punishment for an offense already commit- ted, but as a protection against probable future acts of cruelty.^i § 137. Same — Desertion. Desertion as a matrimonial offense is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabita- tion, without justification either in the consent or the wrongful conduct of the other.^^ To constitute desertion there must be, first, an actual breaki n g off of the matri naoniaj co habitation, and sec- ondly, an intent to desert.^* It is generally held that 49 9 Am. & Eng. Enc. Law (2d Ed.) 806; Poor v. Poor, 8 N. H. 307, 29 Am. Dec. 664. See, also, Morris v. Morris, 14 Cal. 76, 73 Am. Deo. 615; Youngs v. Youngs, 130 111. 230, 22 N. E. 806, 17 Am. St. Rep. 313; Hoshall v. Hoshall, 51 Md. 72, 34 Am. Rep. 298. 60 Albert v. Albert, 5 Mont. 577, 51 Am. Rep. 86. 511 Bisliop, Mar., Div. & Sep. § 1536; Morris v. Morris, 14 Cal. 76, 73 Am. Dec. 615. 52 1 Bisbop, Mar., Div. & Sep. § 1662. Desertion, in the law of di- vorce. Is tbe voluntary separation of one party from the other with- out justification, with the intention of not returning. Williams v. Williams, 130 N. Y. 193, 29 N. B. 98, 27 Am. St. Rep. 517. See, gemerally, as to desertion, 1 Bishop, Mar., Div. & Sep. §§ 1653- 1778; 9 Am. & Eng. Enc. Law (2d Ed.) 764-781; note in 9 L. R. A. 696. 53 Johnson v. Johnson, 22 Colo. 20, 43 Pac. 130, 55 Am. St. Rep. 112; Hardie v. Hardie, 162 Pa. St. 227, 29 Atl. 886, 25 L. R. A. 697; 284 HUSBAND AND WIFE. § 137 the mere refusal of sexual intercourse without sufficient reason is not desertion.^* Mr. Bishop, however, takes a contrary view.^^ The separation must be against the will, or, at least, without the consent, of the other party. A separation by mutual consent is not desertion.^" Again, the separation must be without legal excuse. If either party leaves the other for good cause, this is not desertion.^^ There is some conflict as to what consti- tutes a legal justification for breaking off matrimonial cohabitation. The better view appears to be that it must be "some physical or mental impediment creating an impossibility to do otherwise, or such ill conduct in the other party as might be foundation for a divorce suit."^^ A wife who, without excuse, refuses to follow her husband when he, in good faith, changes his domi- cile, is guilty of desertion.^® Eather curiously it has Pinkard v. Pinkard, 14 Tex. 356, 65 Am. Dec. 129; Bailey v. Bailey, 21 Grat. (Va.) 43; Latham v. Latham, 30 Grat. (Va.) 307. 51 Fritz V. Fritz, 138 111. 436, 28 N. E. 1058, 32 Am. St. Rep. 156, 14 L. R. A. 685; Southwick v. Southwick, 97 Mass. 327, 93 Am. Dec. 95; Watson v. Watson, 52 N. J. Bq. 349, 28 Atl. 467, Woodruff Cas. 221. The refusal of sexual intercourse is not "utter desertion." Stewart v. Stewart, 78 Me. 548, 57 Am. Rep. 822. B5 1 Bishop, Mar., Div. & Sep. § 1676 et seq. It seems that the authorities cited by Mr. Bishop in support of his position are not in point. See note in 14 L. R. A. 685. 50 2 Bishop, Mar., Div. & Sep. § 1475; Cooper v. Cooper, 17 Mich. 205, 97 Am. Dec. 182; Herold v. Herold, 47 N. J. Eq. 210, 20 Atl. 375, 9 L. R. A. 696; Bailey v. Bailey, 21 Grat. (Va.) 43. 5f Doolittle V. Doolittle, 78 Iowa, 691, 43 N. W. 616, 6 L. R. A. 187; Williams v. Williams, 130 N. Y. 193, 29 N. E. 98, 27 Am. St. Rep. 517, 14 L. R. A. 220. 68 1 Bishop, Mar., Div. & Sep. § 1778. See Fritz v. Fritz, 138 111. 436, 28 N. E. 1058, 32 Am. St. Rep. 156, 14 L. R. A. 685; Taylor v. Taylor, 80 Iowa, 29, 20 Am. St. Rep. 394. 59 9 Am. & Eng. Enc. Law (2d Ed.) 767. See ante, § 63. § l.-;8 DISSOLUTION OF MARRIAGE. 285 been held that where one party drives the other away by force or misconduct constituting g-round for divorce, the offender is guilty of desertion.®" In some states the desertion must continue for a pre- scribed period to constitute a ground for divorce.®^ § 138. Same — Other grounds. Besides the principal grounds already considered, di- vorces may be granted in some states for insanity,®^ habitual drunkenness or intemperance,®^ imprisonment 80 9 Am. & Eng. Enc. Law (2d Ed.) 770; Lea v. Lea, 99 Mass. 423, 96 Am. Dee. 772; McVickar v. McVickar, 46 N. J. Eq. 490, 19 Atl. 249, 19 Am. St. Rep. 422. Where a husband is compelled, by his wife's cruelty and misconduct, to leave her and live apart, he is en titled to a divorce. from her on the ground that she has abandoned him. Setzer v. Setzer, 128 N. C. 170, 38 S. E. 731, 83 Am. St. Rep. 666. A wife who leaves her husband, with his consent, because he fails to support her, cannot obtain a divorce on the ground of his desertion. Ingersoll v. IngersoU, 49 Pa. 249, 88 Am. Dec. 500. SI See Danforth v. Danforth, 88 Me. 120, 33 Atl. 781, 51 Am. St. Rep. 380, 31 L. R. A. 608, Woodrllff's Gas. 223. 62 Hickman v. Hickman, 1 Wash. St. 257, 24 Pac. 445, 22 Am. St. Rep. 148. In the absence of statute. Insanity arising after marriage is not a ground for divorce. Hamaker v. Hamaker, 18 111. 137, 65 Am. Dec. 705, I,ewis v. Lewis, 44 Minn. 124, 46 N. W. 323, 20 Am. St. Rep. 559. See, generally, note In 34 L. R. A. 161. An action for divorce may be maintained against an insane de- fendant who became insane after the cause of action accrued. Har- rigan v. Harrigan, 135 Gal. 397, 67 Pac. 506, 87 Am. St. Rep. 118. 63Mahone v. Mahone, 19 Cal. 626, 81 Am. Dec. 91; Dennis v. Den- nis, 68 Conn. 186, 36 Atl. 34, 57 Am. St. Rep. 95, 34 L. R. A. 449; Allen V. Allen, 73 Gonn. 54, 46 Atl. 242, 84 Am. St. Rep. 135, 49 L. R. A. 142; McBee v. McBee, 22 Or. 329, 29 Pac. 887, 29 Am. St. Rep. 613; note 34 L. R. A. 449. Habitual intoxication produced by the use of morphine is not "habitual drunkenness," within the meaning of the statute. Ring v. Ring, 112 Ga. 854, 38 S. E. 330; Youngs v. Youngs, 130 111. 230, 22 N. E. 806, 17 Am. St. Rep. 313, 6 L. R. A. 548. 286 HUSBAND AND 'wife. § 140 in the penitentiary or conviction of crime,®* nonsup- port,**^ and various other grounds."® § 139. Defenses to suit for divorce — In general. Since a divorce presupposes a valid marriage, it is a good defense to a suit for divorce®'^ that the parties were never married,®* or that their marriage was void for some reason, as that one of the parties was already mar- ried,®® or for other reason. It is also a good defense "it the defendant was in- sane at the time of committing the act or acts relied upon as a ground of divorce.''® § 140. Same — Special defenses. There are several special defenses which, if estab- lished, will defeat a suit for divorce, namely : 64 Davis V. Davis, 19 Ky. L. R. 1520, 43 S. W. 168, 39 L. R. A. 403; Leonard v. Leonard, 151 Mass. 151, 23 N. E. 732, 21 Am. St. Rep. 437, 6 L. R. A. 632; note in 31 L. R. A. 515. See Caswell v. Caswell, 64 Vt. 557, 24 Atl. 988, 33 Am. St. feep. 943. 05 9 Am. & Bng. Enc. Law (2d Ed.) 781. Under a statute making nonsupport a ground for divorce, a di- vorce will not be granted for the husband's failure to support his wife when he was unable to do so, even though his inability was the result of imprisonment for crime. Hammond v. Hammond, 15 R. L 40, 2 Am. St. Rep. 867. 06 See 1 Bishop, Mar., Div. & Sep. §§ 1779-1832. 07 As to defenses, see, generally, 9 Am. & Eng. Enc. Law (2d Ed.) 839. esKllburn v. Kilburn, 89 Cal. 46, 26 Pac. 636, 23 Am. St. Rep. 447; Van Dusen v. Van Dusen, 97 Mich. 70; Harbeck v. Harbeck, 102 N. Y. 714. 60 9 Am. & Eng. Enc. Law (2d Ed.) 839. In such case, however, a nullity suit, sometimes called a suit for divorce, may be main- tained. Birth V. Barth, 102 Ky. 56, 42 S. W. 1116, 80 Am. St. Rep. 335; Lea v. Lea, 104 N. C. 603, 10 S. E. 488, 17 Am. St. Rep. 692. 70 1 Bishop, Mar., Div. & Sep. §§ 1115, 1577; 9 Am. & Eng. Enc. Law (2d Ed.) 839. See, also, ante, § 135, note 29. § 140 DISSOLUTION OF MARRIAGE. 287 (1) Recrimination. Keerimination is the defense that the plaintiff is guilty of misconduct constituting a cause for divorce. The misconduct of the plaintiff need not be the same as that of the defendant, and, according to the better view, it is immaterial whether it is a ground for a divorce a mensa only, or for an absolute divorce, and this, whether the plaintiff sues for a limited or an absolute divorce/^ (2) Condonation. Condonation is the remission by one of the married parties of an offense which he knows the other has committed against the marriage, on condi- tion of being continually thereafter treated with con- jugal kindness. In other words, it is a conditional for- giveness. The breach of the condition, either by a repe- tition of the original offense or by the commission of some other offense constituting a ground for divorce, re- vives the condoned offense. Moreover, the condonation . must be with knowledge of the offense, and mere forgive- ness is not sufficient to amount to condonation without a conditional restoration of the offender to his or her conjugal rights. Continued cohabitation as husband T12 Bishop, Mar., Div. & Sep. §§ 337-409; 9 Am. & Eng. Enc. Law (2d Ed.) 816-821; notes in 86 Am. St. Rep. 333, and 15 Am. Dec. 211; Decker v. Decker, 193 111. 285, 61 N. E. 1108, 86 Am. St. Rep. 325, 55 L. R. A. 697; Burke v. Burke, 44 Kan. 307, 24 Pac. 466, 21 Am. St. Rep. 283; Fisher v. Fisher, 95 Md. 315, 52 Atl. 898, 93 Am. St. Rep. 334; Smith v. Smith, 4 Paige (N. Y.) 432, 27 Am. Dee. 75; Mattox V. Mattox, 2 Ohio, 233, 15 Am. Dee. 547; Mathewson v. Mathewson, 18 R. I. 456, 28 Atl. 801, 49 Am. St. Rep. 782; Church v. Church, 16 R. I. 667, 19 Atl. 244, 7 L. R. A. 385; Pease v. Pease, 72 Wis. 136, 39 N. W. 133, Woodruff Cas. 231; Hubbard v. Hubbard, 74 Wis. 650, 43 N. W. 655, 6 L. R. A. 58. The plaintiff's fault must be such as constitutes a cause for divorce. Setzer v. Setzer, 128 N. C. 170, 38 S. B. 731, 83 Am. St. Rep. 666. 288 HUSBAND AND WIFE. § 140 and wife will ordinarily constitute condonation. But tke cohabitation must be voluntary, and the presumption of condonation where the parties continue to live to- gether is not so strong against the wife as against the husband, for, by reason of her dependence upon him, she may be unable to find a home elsewhere.^- (3) Con)iivance. Connivance is the consent or indif- ference of the complainant to the misconduct of which he complains as a cause of divorce. Although available in a suit for divorce for any cause, it is generally set up as a defense to divorce for adultery. A husband who leads or entraps his wife into committing adultery is guilty of connivance, but not where, suspecting her guilt, he merely takes steps to procure proof. For this pur- pose he may watch her and permit her to commit adul- tery, but he may not invite her to do so. Connivance of one act of adultery will bar a suit for that or a subse- quent, but not a prior, adultery."^* 72 2 Bishop, Mar., Div. & Sep. §§ 267-336; 9 Am. & Eng. Enc. Law (2d Ed.) 822-828; Durant v. Durant, 1 Hagg. 733; D'Aguilar v. D'Agu41ar, 1 Hagg. 773; Beeby v. Beeby, 1 Hagg. 789; Alexandre v. Alexandre, 2 Prob. & Div. 164, Woodruff Gas. 225; May v. May, 108 Iowa, 1, 78 N. W. 703, 75 Am. St. Rep. 478; Gumming v. Gumming, 135 Mass. 386, 46 Am. Rep. 476; Jones v. Jones, 18 N. J; Eq. 33, 90 Am. Dec. 607, and note; Sbackleton v. Shackleton, 48 N. J. Eq. 364, 21 Atl.-935, 27 Am. St. Rep. 478; Smith v. Smith, 4 Paige (N. Y.) 432, 27 Am. Dec. 75; Langdon v. Langdon, 25 Vt. 678, 60 Am. Dec. 296. • '3 9 Am. & Eng. Enc. Law (2d Ed.) 829-832; 2 Bishop, Mar., Div. & Sep. §§ 201-248; note in 12 L. R. A. 524; Dennis v. Dennis, 68 Gonn. 186, 36 Atl. 34, 57 Am. St. Rep. 95; May v. May, 108 Iowa, 1, 78 N. W. 703, 75 Am. St. Rep. 202; Robbins v. Robbins, 140 Mass. 528, 54 Am. Rep. 488; Morrison v. Morrison, 142 Mass. 361, 56 Am. Rep. 688; Wilson v. Wilson, 154 Mass. 194, 28 N. E. 167, 26 Am. St. Rep. 237, 12 L. R. A. 524, Woodruff Gas. 227. § 141 DISSOLUTION OP MARRIAGE. 289 (4) Collusion. Collusion is a conspiracy of the hus- band and wife to obtain a divorce by suppression of the facts, or by false or manufactured testimony. A di- vorce will be denied where it appeffrs that the parties have colluded for the purpose of obtaining it.''* And contracts between husband and wife promoting their di- vorce are contrary to public policy and void.^^ Upon the same principle, it is held that a cause for a divorce cannot be established by the admissions or confessions of the parties alone, without corroborating evidence. Any other rule would enable persons unhappily mated to dissolve their marriage by a collusive admission of a ground of divorce which did not in fact exist.''* § 141. Vacation of decree for fraud. If a decree of divorce has been obtained by either party to the marriage by fraud, it may be set aside by the court in which the decree was rendered upon the application of the party aggrieved. This is in accord- ance with the general rule that a court may vacate its 74 8 Am. & Eng. Enc. Law (2d Ed.) 832-836; 2 Bishop, Mar., Div. & Sep. §§ 249-266; Barnes v. Barnes, 1 Prob. & Div. 505, WoodrufC Cas. 229. 75 Mucklenburg v. Holler, 29 Ind. 139, 92 Am. Dec. 345; Comstock V. Adams, 23 Kan. 513, 33 Am. Rep. 191; Carey v. Mackey, 82 Me. 516, WoodrufC Cas. 88; Belden v. Munger, 5 Minn. 211, 80 Am. Dec. 407; Blank v. Nohl, 112 Mo. 159, 20 S. W. 477, 18 L. R. A. 350; Sayles v. Sayles, 21 N. H. 312, 53 Am. Dee. 208; Palmer v. Palmer, 26 Uteh, 31, 72 Pac. 3, 99 Am. St. Rep. 820. See post, § 146. 76 9 Am. & Eng. Enc. Law (2d Ed.) 845; Richardson v. Richard- son, 4 Port. (Ala.) 467, 30 Am. Dec. 538; Fisher v. Fisher, 95 Md. 315, 52 Atl. 898, 93 Am. St. Rep. 334; Latham v. Latham, 30 Grat. (Va.) 307. Long, D. R.— 19. 290 HUSBAND AND WIFE. § l^l own decrees if procured by fraud/ '^ The decree may be set aside, even though the rights of innocent third par- ties are thereby prejudiced/* and although a second marriage has talien place, and issue been born thereof.^" And the fact that the party who procured the divorce is dead does not necessarily defeat a suit to vacate the decree. Thus a wife, in order to establish her rights as her husband's widow, may maintain a suit to set aside a decree of divorce obtained by her husband in his life- ■ time.*" But the jurisdiction to vacate decrees of di- vorce should be exercised with caution, especially after a long lapse of time, and after changes in the status and property rights of persons concerned have been made on the faith of such decrees.*^ A decree will not be set aside at the suit of a party guilty of fraud in obtaining TT7 Enc. PI. & Pr. 138-140; 2 Bishop, Mar., Div. & Sep. §§ 1539- 1577; note in 61 Am. Dec. 459; Brown v. Grove, 116 Ind. 84, 9 N. B. 823, 9 Am. St. Rep. 823; Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393, distinguishing Greene v. Greene, 2 Gray (Mass.) 361, 61 Am. Dec. 454; Colby v. Colby, 59 Minn. 432, 61 N. W. 460, 50 Am. St. Rep. 420; Wisdom v. Wisdom, 24 Neb. 551, 39 N. W. 594, 8 Am. St. Rep. 215; Adams v. Adams, 51 N. H. 388, 12 Am. Rep. 134; State V. Watson, 20 R. I. 354, 39 Atl. 193, 78 Am. St. Rep. 871. 78 Rush V. Rush, 46 Iowa, 648, 26 Am. Rep. 179. 79 Simpkins v. Simpkins, 14 Mont. 386, 36 Pac. 759, 43 Am. St. Rep. 641; Nichells v. Nichells, 5 N. D. 125, 64 N. W. 73, 57 Am. St. Rep. 540; Allen v. Maclellan, 12 Pa. 328, 51 Am. Dec. 608. 80 Lawrence v. Nelson, 113 Iowa, 277, 85 N. W. 84, 57 L. R. A. 583; Johnson v. Coleman, 23 Wis. 453, 99 Am. Dec. 193. But for circumstances in which such relief was denied, see Carr v. Carr, 92 Ky. 552, 36 Am. St. Rep. 614; Meyer v. Koontz, 103 Wis. 22, 79 N. W. 50, 74 Am. St. Rep. 837. See note in 57 L. R. A. 583. 81 Adams v. Adams, 51 N. H. 388, 12 Am. Rep. 131. § 141 DISSOLUTION OF MARRIAGE. 291 it or consenting thereto. Thus, a decree of divorce ob- tained by collusion cannot be attacked by either party.^^ The decree may be vacated only in the same court in which it was rendered;^* but other courts may ignore decrees of divorce fraudulently obtained in some cases, as, for example, where the divorce was obtained in an- other state upon a fraudulent pretense by the plaintiff that he or she was domiciled in such state. Such a di- vorce is void for want of jurisdiction, and no proceeding to vacate it is necessary.®* It seems that a decree of divorce may be vacated for fraud only at the suit of the immediate parties to the divorce suit, — that is to say, of the husband or the wife.^*^ The effect of vacating a decree of divorce is to place the parties back in the same situation as they were in before the divorce was granted, although there may have been a subsequent marriage and the birth of chil- dren, — the former marital status is revived.^^ It fol- lows that a man who cohabits with his second wife after the vacation of a decree dissolving his first marriage may be prosecuted for adultery .®® 82 Karren v. Karren, 25 Utah, 87, 69 Pac. 465, 95 Am. St. Rep. 815, 60 L. R. A. 294. See post, § 142, note 96, and note in 60 L. R. A. 294. 83 2 Bishop, Mar., Div. & Sep. § 1556. 84 See post, § 142. 84a Tyler v. Aspinwall, 73 Conn. 493, 47 Atl. 755, 54 L. R. A. 758; Baugh V. Baugh, 37 Mich. 59, 26 Am. Rep. 495. 85 Comstock V. Adams, 23 Kan. 513, 33 Am. Rep. 191; Voorheea V. Voorhees' Ex'rs, 46 N. J. Eq. 411, 19 Atl. 172, 19 Am. St. Rep. 404. 86 State V. Watson, 20 R. I. 354, 39 Atl. 193, 78 Am. St. Rep. 871. 292 HUSBAND AND WIFE. § 142 § 142. Foreign divorces — Domicile — Conflict of laws. It is well settled that each state has the exclusi\ right to determine the status of its own domiciled citi- zens, and no state has the right to fix or control the status of the citizens of other states. Again, the constitution of the United States provides that fall faith and credit shall he given in each state to the public acts, records, and judicial proceedings of every other state; but it is held that, in the case of a judgment rendered in another state, the question of jurisdiction may always be in- quired into, and, if it appear that the court rendering judgment had no jurisdiction, such judgment is a nul- lity.*'' From these principles it follows that a divorce granted in a state in which both parties are domiciled is valid everywhere, although the marriage may have tak- en place, or the ground of divorce arisen, in another state.** So, also, where the parties are domiciled in different states, a divorce obtained in the state where the plain- 87 Andrews v. Andrews, 188 U. S. 14; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; Van Possen v. State, 37 Ohio St. 317, 41 Am. Rep. 507. See, generally, as to the extraterritorial effect of divorce de- crees and conflict of laws in divorce matters, 2 Bishop, Mar., Div. & Sep. §§ 1-200; 9 Am. & Eng. Enc. Law (2d Ed.) 741-746; Minor, Confl. Laws, §§ 84-96; monographic note in 59 L. R. A. 135; notes in 7 Am. Dec. 206, 21 Am. Dec. 747, 83 Am. St. Rep. 616, 11 L. R. A. 443, and 19 L. R. A. 515; Cummington v. Belchertown, 149 Mass. 223, 21 N. E. 435, 4 L. R. A. 131; Falrchild v. Fairchild, 53 N. J. Eq. 678, 34 Atl. 10, 51 Am. St. Rep. 650; Rlgney v. Rigney, 127 N. Y. 408, 28 N. E. 405, 24 Am. St. Rep. 462; McCreery v. McCreery, 44 S. C. 195, 22 S. E. 178, 51 Am. St. Rep. 794, 28 L. R. A. 655; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706. 88 2 Bishop, Mar., Div. & Sep. § 48; Cheeley v. Clayton, 110 U. S. 701; Roth v. Roth, 104 111. 35, 44 Am. Rep. 81. § 142 DISSOLUTION OF MARRIAGE. 293 tiff is domiciled is j;alid everywhere.*® A suit for di- vorce is a proceeding both quasi in rem and in per- sonam, — in rem in so far as it affects the status ; in personam in so far as the decree amounts to a personal jiidgment against the defendant for alimony, costs, etc.®" So far as the decree determines merely the status, it is effective, although the defendant never ap- peared, and vras not personally served with process. Constructive service is sufficient. This result neces- sarily follows from the fact that the divorce granted to one party necessarily divorces the other, for there can be no husband without a wife, and vice versa.^^ But 89 Atherton v. Atherton, 181 U. S. 155, reversing 155 N. Y. 129, 63 Am. St. Rep. 650; Thompson v. Thompson, 91 Ala. 591, 8 So. 419, 11 L. R. A. 443; Loker v. Gerald, 157 Mass. 42, 34 Am. St. Rep. 252. See cases cited in note 91, infra. The courts of the state in which the plaintiff has a hona fide domicile have jurisdiction of a suit for divorce against a nonresident defendant for a cause which arose in another state. Tolen v. Tolen, 2 Blackf. (Ind.) 407, 21 Am. Dec. 742. Succession of Benton, 106 La. 494, 31 So. 123, 59 L. R. A. 135; Jones V. Jones, 67 Miss. 195, 6 So. 712, 19 Am. St. Rep. 299. And the nonresident defendant may maintain a cross bill in such case. Glutton V. Glutton, 108 Mich. 267, 66 N. W. 52, 31 L. R. A. 160. 90 Rigney v. Rigney, 127 N. Y. 408, 28 N. E. 405, 24 Am. St. Rep. 462. See ante, § 138. 91 Estate of Newman, 75 Cal. 213, 16 Pac. 887, 7 Am. St. Rep. 146; In re James' Estate, 99 Gal. 374, 33 Pac. 1122, 37 Am. St. Rep. 60; Dunham v. Dunham, 162 111. 589, 44 N. E. 841, 35 L. R. A. 70; Felt V. Felt, 59 N. J. Eq. 606, 45 Atl. 105, 49 Atl. 1071, 83 Am. St. Rep. 612; Kempson v. Kempson, 63 N. J. Eq. 783, 52 Atl. 360, 625, 92 Am. St. Rep. 682. See, also, McGrew v. Mut. L. Ins. Go., 132 Gal. 85, 64 Pac. 103, 84 Am. St, Rep. 20. And see, contra, in New York and North Carolina, Williams v. Williams, 130 N. Y. 193, 29 N. E. 98, 27 Am. St. Rep. 517, 14 L. R. A. 220; Harris v. Harris, 115 N. G. 587, 20 S. E. 187, 44 Am. St. Rep. 471. Where a wife leaves her husband without good cause, and he afterwards removes to another state, and there acquires a domicile and obtains a divorce from his wife. 294 HUSBAND AND WIFE. § 142 no personal judgment can be rendered against a de- fendant upon mere constructive service. The court has jurisdiction of the status of the plaintiff only.^^ It should be remembered in this connection that the wife may acquire a separate domicile from the husband for divorce purposes."* A divorce granted in a state of which neither party is a domiciled citizen is without jurisdiction and void, except, perhaps, in the state in which it is granted.®* such divorce is valid, althougli the wife remains a resident of his former domicile, for in such case her domicile follows his. Loker V. Gerald, 157 Mass. 42, 31 N. E. 709, 34 Am. St. Rep. 252. 82 De La Montanya v. De La Montanya, 112 Cal. 101, 44 Pac. 345, 53 Am. St. Rep. 165, 32 L. R. A. 82; Rigney v. Rigney, 127 N. Y. 408, 28 N. E. 405, 24 Am. St. Rep. 462; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132; Smith v. Smith, 74 Vt. 20, 51 Atl. 1060, 93 Am. St. Rep. 882. But if a husband, sued in another state by his wife re- siding in such state, appears and defends the suit, he thereby sub- mits to the jurisdiction; and a personal judgment for alimony may be rendered against him. Lynde v. Lynde, 162 N. Y. 405, 56 N. E. 979, 48 L. R. A. 679; Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200, 127 N. C. 190, 37 S. E. 212, 80 Am. St. Rep. 791. See, also, Jones V. Jones, 108 N. Y. 415, 2 Am. St. Rep. 447. It has been held that while a divorce granted in a state in which the defendant was not domiciled operates to dissolve the marriage relation, it does not affect the defendant's marital rights in the plaintiff's property sit- uated in the state of defendant's domicile. Doerr v. Forsythe 50 Ohio St. 726, 35 N. E. 1055, 40 Am. St. Rep. 703. 83 See ante, § 63. Hi Bell V. Bell, 181 U. S. 175; Streitwolf v. Streitwolf, 181 V. S. 179; Watkins v. Watkins, 125 Ind. 163, 25 N. E. 175, 21 Am. St. Rep. 217; Litowich v. Litowich, 19 Kan. 451, 27 Am. Rep. 145; Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299; Magowan v. Magowan, 57 N. J. Eq. 322, 42 Atl. 330, 73 Am. St. Rep. 645; Hoifman v. Hoffman, 46 N. Y. 30, 7 Am. Rep. 299; St. Sure v. Llndsfelt, 82 Wis. 346, 52 N. W.,308, 33 Am. St. Rep. 50, 19 L. R. A. 515. Such void divorce is no defense to a criminal prosecution of either of the parties in the domicile state for subsequently marrying again § 142 DISSOLUTION OP MARRIAGE. 295 A bona fide domicile of the plaintiff, at least, is essential to confer jurisdiction, and the fact that both parties voluntarily appeared and consented to the jurisdiction does not give validity to the proceedings, except as be- tween themselves.^^ But the parties themselves are bound by the decree thus fraudulently or collusively obtained, and cannot avoid it in a collateral proceeding afterwards instituted in the state of their actual domi- cile.8« To confer jurisdiction, the plaintiff must have a dona fide domicile in the state in which the suit is brought. A mere colorable residence, as where the plaintiff goes to the state and resides therein for the purpose of pro- curing a divorce, is not sufficient, and a divorce so ob- tained is void.*"^ Where, however, the plaintiff has during the lifetime of tlie other. Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260; Van Fos- sen V. State, 37 Ohio St. 317, 41 Am. Rep. 507. And the fact that the laws of the state in which the divorce was granted authorized the granting of divorces to nonresidents is immaterial, for such laws are void, no state having the power to regulate the domestic relations of citizens of other states. Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507. 85 See People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260. 98 In re Ellis' Estate, 55 Minn. 401, 56 N. W. 1056, 43 Am. St. Rep. 514, Woodruff's Gas. 208, 23 L. R. A. 287; Kinnier v. Kinnier, 45 N. T. 535, 6 Am. Rep. 132. See, also, Starbuck v. Starbuck, 173 N. Y. 503, 66 N. E. 193, 93 Am. St. Rep. 631; notes in 23 L. R. A. 287, and 60 L. R. A. 294. But see, contra, Andrews v. Andrews, 188 U. S. 14. 97 Andrews v. Andrews, 188 U. S. 14; Dunham v. Dunham, 162 111. 582, 44 N. E. 841, 35 L. R. A. 70; Lawrence v. Nelson, 113 Iowa, 277, 85 N. W. 84, 57 L. R. A. 583; Hanover v. Turner, 14 Mass. 227, 7 Am. Dec. 203; Reed v. Reed, 52 Mich. 117, 50 Am. Rep. 247; Ma- gowan V. Magowan, 57 N. J. Eq. 322, 42 Atl. 330, 73 Am. St. Rep. 645; Streitwolf v. Streitwolf, 58 N. J. Eq. 563, 41 Atl. 876, 43 Atl. 683; 78 Am. St. Rep. 630, affirmed 181 U. S. 179; and cases cited iu 296 HUSBAND AND WIFE. § 142 acquired a 'bona, -fide domicile in the state in which the suit is brought, the fact that he had not resided therein as long as its laws require before commencing the suit does not affect the validity of the divorce. The decree in such case, though irregular, is valid, the irregularity not affecting the jurisdiction of the court.®* The validity of a divorce is to be determined by the law of the state in which it is granted,"® provided, of course, the courts of such state have jurisdiction of the cause; and, as we have already seen, the question of jurisdiction depends wholly upon domicile. If the state in which the suit is brought is the domicile of both of the parties, or of the plaintiff alone, the decree of divorce is valid everywhere, although the marriage was celebrated or the cause of divorce arose in some other state -^"^ and where the cause arose in another state, the question as to whether it constitutes a ground for di- vorce is to be determined by the law of the state of domicile and forum, and not by the law of the state in which it arose.^"^ note 94, supra. Where husbajid and wife are domiciled in ttie same state, a court of equity of that state, at the suit of the wife, may en- join the husband from prosecuting a suit for divorce in another state, of which he fraudulently claims to be a resident. Kempson V. Kempson, 63 N. J. Eq. 783, 52 Atl. 360, 625, 92 Am. St. Rep. 682. 98 Kern v. Field, 68 Minn. 317, 71 N. W. 393, 64 Am. St. Rep. 479. This decision is plainly correct. It is the fact that the plaintiff is a citizen of the state, and not the length of time he has been such, that confers jurisdiction. oDTolen v. Tolen, 2 Blackf. (Ind.) 407, 21 Am. Dec. 742. 100 2 Bishop, Mar., Div. & Sep. §§ 160-178; Jones v. Jones, 67 Miss. 195, 6 So. 712, 19 Am. St. Rep. 299; Hubbell v. Hubbell, 3 Wis. 662, 62 Am. Dec. 702. 101 This seems to follow necessarily from the principles just § 143 DISSOLUTION OF MARRIAGE. 397 § 143. The effect of divorce. Divorce a mensa et thoro. A divorce from board and bed does not dissolve the marriage, but leaves the par- ties still husband and wife, and, in general, does not greatly affect their personal disabilities or property rights. The wife, however, may acquire a separate domicile, and is not subject to the husband's control while the cohabitation is suspended. _ The rights of dower, curtesy, administration, etc., are not affected. Neither party can marry again, except by remarrying the other. Children previously born or begotten are legitimate, but children of the wife begotten after the decree are presumed to be illegitimate, though this pre- sumption may be rebutted by showing access by the husband.^ "^ In some states the above rule has been changed by statute, especially in matters relating to property rights, so as to give to a decree of divorce from bed and board more nearly the effect, except as to mar- rying again, of a decree of absolute divorce.^"* At com- mon law, in case of a limited divorce, the decree of separation was limited in its effect until the parties should become reconciled. Under modern statutes it may be for a limited time or forever.^"* stated, and seems generally to be accepted as law without question. But see Hick v. Hick, 5 Bush (Ky.) 670, and Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372. 1029 Am. & Eng. Enc. Law (2d Ed.) 852, 853; 2 Bishop, Mar., Div. & Sep. §§ 1671-1695. 1039 Am. & Eng. Enc. Law (2d Ed.) 853; Marshall v. Baynes, 88 Va. 1040, 14 S. B. 978. 104 2 Bishop, Mar., Div. & Sep. § 476; 9 Am. & Eng. Enc. Law (2d Ed.) 852. 298 HUSBAND AND WIFE. § 143 Decree of nullity. Where the decree is not one of dis- solution, but of nullity, the marriage being declared void ah initio, the parties stand as though they had never been married. As betAveen themselves, their re- spective property rights are what they were before mar- riage, but the rights of third persons who have in good faith acquired the wife's property from the husband during the coverture will be protected. The children born of such a union are illegitimate, except where de- clared legitimate by statute. The husband cannot claim curtesy or the wife's personalty, nor can the wife claim dower. . The wife resumes her maiden name. In short, everything depending on the marriage falls with the marriage.^"^ Divorce a vinculo matrimonii. A decree dissolving a valid marriage for some cause arising after marriage does not operate retrospectively so as to render the mar- riage void ah initio, but takes effect only from the^ date of the decree. Thereafter the parties are no longer hus- band and wife, and can claim none of the rights and are subject to none of the disabilities growing out of cover- ture. The decree cannot operate retrospectively so as to take away vested property rights (e. g., the hus- band's right to the wife's personal property in posses- sion), but all non vested rights depending on the mar- riage, such as dower or curtesy, fall with the marriage. Children born of the marriage are not rendered illegiti- 105 2 Bishop, Mar., Dlv. & Sep. §§ 1596-1609; Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462, 32 L. R. A. 848; Kelly v. Scott, 5 Grat. (Va.) 479. As to the legal effect ot a void marriage, see monographic note in 96 Am. St. Rep. 267. § 144 DISSOLUTION OF MARRIAGE. 299 mate by the divorce. The wife retains her husband's surname, though in some states she is permitted to re- sume her maiden name, as she probably might do at common law.^°® § 144. Alimony. In a suit for divorce the court may compel the hus- band to pay to the wife an allowance for her support and maintenance. Such allowance is called "alimony." Its payment may be ordered pending the suit for the support of the' wife and to enable her to prosecute or defend the suit, in which case it is called "alimony pen- dente lite," or temporary alimony ; or it may be ordered in the decree for the support of the wife after the di- vorce, in which case it is called "permanent alimony." Whether alimony shall be awarded or not, and its amount if awarded, are largely matters of discretion with the courts. The circumstances of the parties will be considered, and alimony will not be awarded if the wife does not need it or the husband cannot pay it. The allowance may include the support of children, and its amount may be increased or diminished as the 106 8 Am. & Eng. Enc. Law (2d Ed.) 523; 9 Am. & Eng. Enc. Law (2d Ed.) 853 et seq.; 10 Am. & Eng. Enc. Law (2d Ed.) 200; 2 Bishop, Mar., Div. & Sep. §§ 1610-1670. See Roe v. Roe, 52 Kan. 724, 35 Pac. 808, 39 Am. St. Rep. 367; Alt v. Banholzer, 39 Minn. 511, 40 N. W. 830, 12 Am. St. Rep. 681, and note; Kern v. Field, 68 Minn. 317, 71 N. W. 393, 64 Am. St. Rep. 479; Doyle v. Rolwing, 165 Mo. 231, 65 S. W. 315, 55 L. R. A. 332; Stelz v. Shreck, 128 N. Y. 263, 28 N. E. 510, 26 Am. St. Rep. 475; Brady v. Kreuger, 8 S. D. 464, 66 N. W. 1083, 59 Am. St. Rep. 771; Ames v. Norman, 4 Sneed (Tenn.) 683, 70 Am. Dec. 269; Hopson v. Powlkes, 92 Tenn. 697; Porter v. Porter, 27 Grat. (Va.) 599, 36 Am. St. Rep. 120; Cralle v. Cralle, 79 Va. 182. 300 HUSBAND AND WIPE. § 144 case demands. The remarriage of the wife will not necessarily affect the allowance of alimony, but if the second husband is able to support her it may be cut off. So, also, a wife does not necessarily forfeit her right to alimony by adultery, but alimony will be refused where she lives with or is supported by her paramour. The right to alimony ordinarily ceases upon the death of the husband or wife."'^ Since the duty to pay alimony grows out of the duty of support, alimony cannot be_decreed in favor of the husband, the wife not being bound to support her hus- band.^°* In some states, however, alimony or main- tenance out of the wife's estate is allowed by statute to the husband.^9 107 2 Am. & Eng. Enc. Law (2d Ed.) 91; 2 Bishop, Mar., Div. & Sep. 655; notes in 60 Am. Dec. 665. See Gaston v. Gaston, 114 Cal. «42, 46 Pac. 609, 55 Am. St. Rep. 86; Cairnes v. Cairnes, 29 Colo. 260, 68 Pac. 233, 93 Am. St. Rep. 55; EickhofE v. Eickhoff, 29 Colo. 295, 68 Pac. 237, 93 Am. St. Rep. 64; Haddon v. Haddon, 36 Fla. 413, 18 So. 779, Woodruff Cas. 239; Cole v. Cole, 142 111. 19, 31 N. E. 109, 34 Am. St. Rep. 56; Bardin v. Bardin, 4 S. D. 305, 56 N. W. 1069, 46 Am. St. Rep. 791; Harris v. Harris, 31 Grat. (Va.) 13; Henin- ger V. Heninger, 90 Va. 271, 18 S. E. 193, Woodruff Cas. 236. As to alimony after the husband's death, see Murphy V. Moyle, 17 Utah, 113, 53 Pac. 1010, 70 Am. St. Rep. 767, and note. Alimony may be allowed in a statutory action to have a marriage declared void because of the husband's prior undissolved marriage. Lea v. Lea, 104 N. C. 603, 10 S. E. 488, 17 Am. St. Rep. 692. The fact that the husband has afterwards married again does not relieve him from the duty of paying alimony as decreed. State V. Brown, 31 Wash. 397, 72 Pac' 86, 62 L. R. A. 974. See note to this case on the effect of the second marriage of husband or wife on the obligation to pay alimony in report last cited. 108 Greene v. Greene, 49 ,Neb. 546, 68 N. W. 947, 34 L. R. A. 110. 100 2 Am. & Eng. Enc. Law (2d Ed.) 92; note in 34 L. R. A. 110. § 146 DISSOLUTION OF MARRIAGE. 301 § 145. Custody of children. In granting a decree of divorce the court will usually determine the custody of the children of the marriage, awarding the custody to the husband or wife or to a third person, as the welfare of the child may demand, the child's welfare being the principal consideration in determining the matter of its custody. The court may also provide for the custody and support of the children pending the suit.^^** § 146. Separation by agreement of parties. Inasmuch as the consent of the state is required to effect a marriage, it would seem that such consent is necessary to dissolve it, -and that the husband and wife cannot, by their own act, divorce themselves,^ ^^ and this is the general doctrine. Agreements for a future sepa- ration, this being in effect a divorce from bed and board, are in this country generally considered as contrary to public policy, and void; and this was formerly the law in England, but at present such agreements are there enforced. And in some states, agreements for immediate separation are held valid, it being in several states so provided by statute. In general it may be said that the law on this subject is in an unsatisfactory 110 See, as to custody and support of children, 2 Bishop, Mar., Div. & Sep. §§ 1149-1224; 9 Am. & Eng. Enc. Law (2d Ed.) 866-871; Hall V. Green, 87 Me. 122, 32 Atl. 796, 47 Am. St. Rep. 311, and note; Har- ris V. Harris, 115 N. C. 587, 20 S. E. 187, 44 Am. St. Rep. 471; Zilley V. Dunwiddie, 98 Wis. 428, 74 N. W. 126, 67 Am. St. Rep. 820. 111 Husband and wife cannot divorce themselves by mutual con- sent. Hilton V. Roylance, 25 Utah, 129, 69 Pac. 660, 95 Am. St. Rep. 660, 58 L. R. A. 723. See ante, § 140, note 75. 302 HUSBAND AND WIFE. § 146 condition. But whether the agreement be considered as valid or not as to the separation, collateral agree- ments by which the parties already separated adjust their property rights, or the husband agrees to maintain his wife while living apart from him, would seem, on principle, to be valid, and it is generally so held. The deed or agreement is ordinarily made t hrough the inter- ve ntion of a trustee, owing to the disability of the wife to contract with the husband ; but under the statutes of some of the states, no trustee is necessary.^^^ 112 See, generally, Schouler, Dom. Rel. §§ 215-218; 1 Bishop, Mar., Div. & Sep. §§ 1260-1312; 25 Am. & Eng. Enc. Law (2d Ed.) 451; notes in 83 Am. St. Rep. 859, and 90 Am. Dec. 367; Jones v. Lamont, 118 Cal. 499, 50 Pac. 766, 62 Am. St. Rep. 251; Sclierer v. Scherer, 23 Ind. App. 384, 55 N. E. 494, 77 Am. St. Rep. 437; Carey v. Mackey, 82 Me. 516, 20 Atl. 84, 17 Am. St. Rep. 500, 9 L. R. A. 113; Foote v. Nickerson, 70 N. H. 496, 48 Atl. 1088, 54 L. R. A. 554; Buttlar v. Buttlar, 57 N. J. Eq. 645, 42 Atl. 755, 73 Am. St. Rep. 648; Galusha v. Galusha, 116 N. Y. 635, 22 N. E. 1114, 15 Am. St. Rep. 453, 6 L. R. A. 487; Clark v. Fosdick, 118 N. Y. 7, 22 N. E. 1111, 16 Am. St. Rep. 732, 6 L. R. A. 132; Henderson v. Henderson, 37 Or. 141, 60 Pac. 597, 61 Pac. 136, 82 Am. St. Rep. 741, 48 L. R. A. 766; Kaiser's Es- tate, 199 Pa. 269, 49 Atl. 79, 85 Am. St. Rep. 785; Switzer v. Switzer, 26 Grat. (Va.) 574; Baun v. Baun, 109 Wis. 47, 85 N. W. 122, 83 Am. St. Rep. 854. PART II. PARENT AND CHILD. CHAPTEK VII. THE ESTABLISHMENT OF THE RELATION. £ 147. In General. 148. The Several Classes of Children. 149. Presumption of Legitimacy. 150. Legitimation of Illegitimate Child. 151. Adoption of Children. § 147. In general. The next domestic relation whicli we shall consider is that of parent and child. This relation/ termed by Blackstone the most universal in nature, differs from the relation of husband and wife, from which it usually results, and from the relation of guardian and ward, in that it is established by nature itself, and is not an artificial creature of the law. But although created in- dependently of any act of the law, it is nevertheless subject to legal regulation and control, the principles of law by which it is governed being, however, compara- tively few and simple. We shall discuss in this chapter the establishment of the relation proper by nature, and of the analogous artificial relation by authority of law. (303) 304 PARENT AND CHILD. ^^ § 149 § 148. The several classes of children. The relation of parent and child may be either the natural relation established by nature, or an artificial relation created by the parties by au thority of law. According to the character of this relation, children are of two sorts, — natural and adopted; and natural children are likewise divided into two classes, — legiti- mate and illegitimate. Strictly speaking, the relation of parent and child means the relation of a parent and his natural legitimate child. At common law, a legiti- mate child is one that is born in lawful wedlock, or Avithin a competent time afterwards, or, in other words, a child born or begotten in wedlock. A child begotten before but born after marriage, or begotten during wed- lock, but born after the husband's death, is legitimate, and all others are illegitimate.^ Children of a void marriage are, of course, illegitimate at common law, as are also children of a voidable marriage which has been rendered void by a decree of nullity.^ § 149. Presumption of legitimacy. When a married woman gives birth to a child, the presumption is that the husband is the father, and that the child is legitimate. In such case the common-law courts apply the maxim of the civil law that pater est quern nuptiae demonstrant. So s^.rongly does the law favor legitimacy that anciently this presumption was 11 Bl. Comm. 446; 3 Am. & Eng. Enc. Law (2d Ed.) 871; Zach- man v. Zachman, 201 111. 380, 66 N. E. 256, 94 Am. St. Rep. 180. See post, § 168. 2 1 Bl. Comm. 440. See ante, §§ 8, 143. § 150 ESTABLISHMENT OP RELATION. 305 bold to be conclusive, provided the busband was any- wbere witbin tbe four seas wbich surround the kingdom of Great Britain (infra qiiartuor mariaj, and was capa- ble of procreation. Tbis absurd doctrine has long since been repudiated, and tbe law now is tbat in any case th£_presumption of legitimacy is prima faci e only, and may be rebutted by proof that the husband is not the father. Tbe presumption of legitimacy is, however, very strong, and the evidence in rebuttal must be clear and convincing.^ § 150. Legitimation of illegitimate child. Legitimation is the investmen t of a child of illegiti- jnate birth with the legal status of a legitimate child. At common law the only mode by which an illegitimate child could be legitimated was by special act of parlia- ment, there being no rule of the common law nor general statute authorizing legitimation. By the more hu- mane rule of the civil and canon laws, a child begotten and born out of wedlock was made legitimate by the subsequent intermarriage of his parents.* In this coun- 3 3 Am. & Eng. Enc. Law (2d Ed.) 873; Estate of Mills, 137 Cal. 298, 70 Pac. 91, 92 Am. St. Rep. 175; Wright v. Hicks, 12 Ga. 155, 56 Am. Dec. 451; Id., 15 Ga. 160, 60 Am. Dec. 687; Orthwein v. Thomas, 127 111. 554, 21 N. E. 430, 11 Am. St. Rep. 159; Zachman v. Zachman, 201 111. 380, 66 N. E. 256, 94 Am. St. Rep. 180; Scanlon v. Walshe. 81 Md. 118, 31 Atl. 488, 48 Am. St. Rep. 488; Egbert v. Greenwalt, 44 Mich. 245, 38 Am. Rep. 260; Hemmenway v. Towner, 1 Allen (Mass.) 209, WoodruiT Gas. 289; Woodward v. Blue, 107 N. C. 407, 12 S. E, 453, 22 Am. St. Rep. 897; Dennison v. Page, 29 Pa. 420, 72 Am. Dec. 644, and note; Smith v. Perry, 80 Va. 563; Scott v. Hillenberg, 85 Va. 245. As to evidence of husband or wife to prove legitimacy, see note in 69 Am. St. Rep. 571. 4 1 Bl. Comm. 455; 2 Kent, Comm. 209. Long, D. R.— 20. 306 PARENT AND CHILD. § 151 try, in most if not all of the states, general legitimation statutes have been passed. In some states the rule of the civil law is adopted, and the intermarriage of the parents, without more, will make the child legitimate; in other states, the father's ^knowled gment of^ jhe child is sulficient; while in others there must be both intermarria^ and acknowledgment by the father.^ Statutes also generally provide that the issue of a void or voidable marriage shall be legitimate, notwithstand- ing the invalidity of the marriage, thus changing the harsh rule of the common law." § 151. Adoption of children. Adoption is an act by which the relation of parenL and child is created in law between persons not so re- lated by nature. The adoption of children, though recognized by the civil law, is unknown to the common law, and there can be no legal adoption except where authorized by statute. Statutes authorizing adoption have been passed in many of the states. These statutes prescribe the mode, conditions, and effect of adoption, B 3 Am. & Eng. Enc. Law (2d Ed.) 885; Minor, Confl. Laws, § 99; Broch V. Johnson, 85 Ind. 397, Woodruff Cas. 292; Van Horn v. Van Horn, 107 Iowa, 247, 77 N. W. 846, 45 L. R. A. 93; Soanlon v. Walshe, 81 Md. 118. 31 Atl. 498, 48 Am. St. Rep. 488; Ives v. McNicoU, 59 Ohio St. 402, 53 N. E. 60, 69 Am. St. Rep. 780; Rohrer v. Muller, 22 Wash. 151, 60 Pac. 122, 50 L. R. A. 350. 6 Leonard v. Braswell, 95 Ky. 528, 36 S. W. 084, 36 L. R. A. 707; Greenhow v. James, 80 Va. 636, 56 Am. Rep. 603. As to conflict of laws in matters of legitimacy and legitimation, see Minor, Confl. Laws, §§ 97-100; Williams v. Kimball, 35 Fla. 49, 16 So. 783, 48 Am. St. Rep. 238; Succession of Petit, 49 La. Ann. 625, 21 So. 717, 62 Am. St. Rep. 659; Ross v. Ross, 129 Mass. 243, 37 Am! Rep. 321; Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669. § 151 ESTABLISHMENT OF RELATION. 307 the persons who may adopt or be adopted, and, in gen- eral, regulate the subject. Adoption is usually effected by a proper proceeding in court. As a rule, the con- sent of the parents or guardian of the child must be -ob- tained. The effect of adoption will depend, of course, upon the terms of the particular statute governing the case. In general, adoption places the child adopted more or less completely in the position, as to rights, duties, etc., of a natural, legitimate child. He is to all intents and purposes the child of his adopted parents, at least so far as the relations between himself and them are concerned. His natural parents, if living, have no longer any control over him, and owe him no duty as parents; nor does he owe them any duty as their child. Upon the death of his adopted parents he may inherit from them , and he may also usually inherit from his natural_parents. There is some conflict as to who may inherit from him upon his death intestate and without issue, leaving both natural and adopted parents or their kin. It would seem that the better view would be that his adopt ed parents shou ld be considered in such case as his heirs a_t^ law or distributeesr"* Of course, an adopted child can claim no rights as the "issue" or "bodily heir" or "next of kin" of his adopted parents, where such rights are created by wills, etc., in such a manner that natural children of the adopting parents might take.'' 7 1 Am. & Eng. Enc. Law (2d Ed.) 726; notes In 12 Am. St. Rep. 100, and 39 Am. St. Rep. 210; Gofer v. Soroggins, 98 Ala. 342, 13 So. 115, 39 Am. St. Rep. 54; In re Williams, 102 Gal. 70, 36 Pac. 409, 41 Am. 30g PARENT AND CHILD. § 151 Besides the regular and technical adoption just con- sidered, the law recognizes a sort of informal adop- tion, where a person, meaning to put himself in loco parentis, takes upon himself the duty of a father to make provision for a child not his own, to this extent assuming the parental character. No legal duties or rights result from such relation, except that the person in loco parentis is under a qualified obligation to sup- port the child, and has a corresponding right to his serv- ices.^ The most familiar instance of this relation is found in the case of stepparents and stepchildren.* St. Rep. 163; Estate of McKeag, 141 Cal. 403, 74 Pac. 1039, 99 Am. St. Rep. 80; Van Matre v. Sankey, 148 111. 536, 36 N. E. 628, 39 Am. St. Rep. 196; Watts v. Dull, 184 111. 86, 56 N. E. 303, 75 Am. St. Rep. 141; Butterfield v. Sawyer, 187 111. 598, 58 N. B. 602, 79 Am. St. Rep. 246; Flannigan v. Howard, 200 111. 396, 65 N. B. 782, 93 Am. St. Rep. 201, 59 L. R. A. 664; Humphries v. Davis, 100 Ind. 274, Woodruff Cas. 295; Warren v. Prescott, 84 Me. 483, 24 Atl. 948, 30 Am. St. Rep. 370, 17 L. R. A. 435; Morrison v. Estate of Sessions, 70 Mich. 297, 38 N. W. 249, 14 Am. St. Rep. 500; Clarkson v. Hatton, 143 Mo. 47, 44 S. W. 761, 65 Am. St. Rep. 635; Phillips v. McConica, 59 Ohio St. 1, 51 N. E. 445, 69 Am. St. Rep. 753; Purgeson v. Jones, 17 Or. 204, 20 Pac. 842, 11 Am. St. Rep. 808, 3 L. R. A. 620, Woodruff Cas. 302. Non-She-Po v. Wa-Win-Ta, 37 Or. 213, 62 Pac. 15, 82 Am. St. Rep. 749; Schiltz v. Roenitz, 86 Wis. 31, 56 N. W. 194, 39 Am. St. Riip. 873, 21 L. R. A. 483; Parsons v. Parsons, 101 Wis. 76, 77 N. W. 147, 70 Am. St. Rep. 894; Nugent v. Powell, 4 Wyo. 173, 33 Pac. 23, 62 Am. St. Rep. 17, 20 L. R. A. 199. 8 See Bennet v. Bennet, L. R. 10 Ch. Div. 474; Whitaker v. War- ren, 60 N. H. 20, 49 Am. Rep. 302; Clark v. Bayer, 32 Ohio St. 299, SO Am. Rep. 593. » See post, § 169. CHAPTER VIII. THE DUTIES AND LIABILITIES OP PARENTS. § 152. In General. 153. Duty of Maintenance — In General. 154. Same — Nature of Duty as Moral or Legal. 155. Same — Liability for Necessaries. 156. Same — Where Child is not Living with Parent. 157. Duty of Protection. 158. Duty of Education. 159. Liability to Third Persons for Torts of Child. § 152. In general. A parent owes to his legitimate child three duties, namely, maintenance, protection, and education. We shall consider each duty in detail. § 153. Duty of maintenance — ^In general. It is the duty of parents to provide ' for the main- tenance of their minor children. This duty falls pri- marily on the father, who is bound to support his infant children, even though they may have property of theii own, or may be capable of earning their own living." During the father's lifetime, the mother, in the absence lolBl. Comm. 447; 2 Kent, Eomm. 191; 21 Am. & Eng. Ene. La-n (2d Ed.) 1049; Presley v. Davis, 7 Rich. Bq. (S. C.) 105, 62 Am Dec. 396; Nat. Valley Bank v. Hancock, 100 Va. 101, 40 S. B. 611, 9S Am. St. Rep. 933. See, generally, cases cited in §§ 153-156. The sur viving father, and not the child's estate, is liable for the funera' expenses of a minor child. Rowe v. Raper, 23 Ind. App. 27, 54 N. B 770, 77 Am. St. Rep. 411. (309) 310 PARENT AND CHILD. ' 153 of a decree of court or statute providiUa otherwise, is under no obligation to support their children." But if the father is dead, the duty of support devolves upon the mother, provided the child has no property and is unable to earn a living, but not otherwise.^ ^ A step- father is not bound to support his stepchildren, but if he receives them into his family and assumes towards them a parental relation, he is bound to support them.^^ Wher£ the father is unable to support his child, and the child has property of his own, a court of equity, up()iLapplicatiou_ of the, father, will make an allowance to him out of the child's estate for the child's support.^ ^ Similarly, an allowance may be made to the mother, after the father's death, in a proper case.^^ The fact that the parents have been divorced does not necessarily terminate the liability of the father for the support of his minor children. In some cases the de- cree makes provision in express terms for both the cus- tody and the support of the children, and in such cases, of course, the decree will settle the question of sup- port.^" But where the decree makes no provision for " 21 Am. & Eng. Enc. Law (2d Ed.) 1050; Gilley v. Gilley, 79 Me. 292, 1 Am. St. Rep. 307, WoodruflE Cas. 269; Gleason v. Boston, 144 Mass. 25. 12 21 Am. & Eng. Enc. Law (2d Ed.) 1050. See cases cited in Dote 15, infra. 13 See post, § 169. "21 Am. & Eng. Enc. Law (2d Ed.) 1051; Watts v. Steele, 19 Ala. 656, Woodruff Cas. 656; Myers v. Myers, 2 McCord (S. C.) 214, 16 Am. Dec. 648, and note; Evans v. Pearee, 15 Grat (Va.) 513, 78 A.m. Dec. 635. 16 Pitts V. Rhode Island Hospital Trust Co., 21 R. I. 544, 45 Atl. 553, 48 L. R. A. 783; Pierce v. Pierce, 64 Wis. 72, 54 Am. Rep. 581. i» See ante, § 145. § 153 DUTIES AND LIABILITIES OP PARENTS. 311 alimony or custody, it is . well s ettled that the fatheris ^(in_bou.nd to_support his children,~even though they may actually be in the custody of the mother.' ^ The authorities are in conflict as to whether the father is liable for the support of the children where the decree awards their custody to the mother, but is silent as to their support. On principle it would seem that the mother, and not the father, should be liable in such case, for she, and not he, has the right to the custody and services of the children; and, moreover, in a proper case, an express pr ovision requiringjiim to^joport the children would. u pon_ herjipplication. be embodied in the decree. It has accordingly been held that the father is not liable, at least to the mother herself.^® It has also been held, however, that, where the divorce has been granted to the mother for the father's fault, he re- •mains liable for the support of the children, although their custody is given to the mother. This is upon the ground that the mere fact that the father has forfeited the right_to the custody and services of his j;hij^dren does not relieve him of the duty of supporting them.*® 17 9 Am. & Eng. Enc. Law (2d Ed.) 871; Gilley v. Gilley, 79 Me. 292, 1 Am. St. Rep. 307, Woodruff Gas. 269; Zilley v. Dunwiddie, 98 Wis. 428, 74 N. W. 126, 67 Am. St. Rep. 820, 40 L. R. A. 579. 18 Husband v. Husband, 67 Ind. 583, 33 Am. Rep. 107; Hall v. Green, 87 Me. 122, 47 Am. St. Rep. 311, and note; Brown v. Smith, 19 R. I. 319, 33 Atl. 466, 30 L. R. A. 680. See, also, Ramsey v. Ramsey, 121 Ind. 215, 23 N. B. 69, 6 L. R. A. 682; Foss v. Hartwell, 168 Mass. 66, 46 N. E. 411, 37 L. R. A. 589. 19 Keller v. St. Louis, 152 Mo. 596, 54 S. W. 438, 47 L. R. A. 391; Pretzlnger v. Pretzinger, 45 Ohio St. 452, 15 N. E. 471, 4 Am. St. Rep. 542; Ditmar v. Ditmar, 27 Wash. 13, 67 Pac. 353, 91 Am. St, Rep. 817. But the father is not liable to the mother where the J 12 PARENT AND CHILD. ^ 154 It should be noted that the question just considered al- most always arises between the father and the mother — the mother seeking to recover from the father for support furnished by her to the children. It would seem clear that in practically any case the mother, hav- ing the right to the custody and control of the children, should be liable to thir d pers ons for jtheir suppo^t^ § 154. Same — Nature of duty as moral or legal. There is some difference of opinion as to the exact nature of the duty of support. It is universally recog- Qized as being at least a moral duty, but the authorities are not harmonious as to whether or not it is also a legal duty. In England by the statute of 43 Elizabeth, and in this country by similar statutes known as the "poor laws," the duty of support has been affirmed and ex- tended, and provision, made for its enforcement. These statutes, however, are for the protection of the public, in order to prevent children from becoming a public charge, and they cannot ordinarily be invoked for the benefit of the child. They therefore do not necessarily render the duty of support in general a legal duty, but its nature must be determined by the common law.^° In England and in some of the American states the duty is declared to be a moral duty merely.^^ But by the weight of American authority it is held that a father is legally bound, to support his minor children if able divorce was granted to him for her misconduct. Fulton v. Fulton, 52 Ohio St. 229, 39 N. E. 729, 49 Am. St. Rep. 720, 29 L. R. A. 678. 20 1 Bl. Comm. 448; 1 Stimson's Am. St. Law, § 6608*; 22 Am. & Eng. Enc. Law (2d Ed.) 1013-1015. 21 See cases cited in note 24, infra. § 1 5 DUTIES AND LIABILITIES OF PARENTS. 3I3 to do SO, although they may have property of their own.^^ It should be noted that the declarations of the courts as to the nature of the duty of support are largely dicta, and are generally unnecessary to the decisions actually rendered. Our statements of the law, therefore, should be based upon what the courts have actually decided, rather than upon what they have said.^^^ The importance of the distinction here made will be- come manifest when we consider in the next section the liability of a father for necessaries furnished to his child by a third person. § 155. Same — Liability for necessaries. The duty of support is ordinarily enforced indirectly by permitting a third person, who has supplied the child with necessaries, to recover therefor from the father. But a father cannot be held liable for neces- saries furnished to his child except upon a contract, or its equivalent, to pay for them. This contract may be made (1) by the father himself; (2) by the child as the 22 See cases cited in note 25, infra. V/e have already seen that the husband's duty to support the wife is a legal duty, and not a mere moral obligation. On principle it would seem that the duty of supporting children should be governed by precisely the same rules, and this we find to be the case, in this country at least, not- withstanding the dictum of Maule, J., in Shelton v. Springett, 11 C. B. 452, 73 E. C. L. 452, that "people are very apt to imagine that a son stands in this respect upon the same footing as a wife; but that is not so." 22a It is somewhat customary to speak of the cases on this sub- ject as being in a state of confusion and contradiction. This is true so far as the language employed by the courts is concerned, but there is little conflict in the actual decisions rendered. 314 PARENT AND CHILD. § 155 father's agent; or (3) by the law. Where the father has promised to pay for support or necessaries furnish- ed the child, or where he has authonzed Ihe chUd to con- tract Jhjeref or: on his behalf, he is plainly liable, and such promise or authority may be either express or im- plied. Where the promise or authority is express there is, of course, no difficulty in holding the father liable; and this is generally true where such promise or author- ity may be implied from other circumstances than the mere relationship of the parties.^* Such agreements by the father, whether express or implied, are governed by the ordinary law of contracts. But where the father has neither expressly nor by implication contracted for the necessaries, nor authorized his child so to contract, and the sole ground of his liability is his relationship to the child and his failure to provide for his wants, it is a question whether the law will make such contract for him and hold him liable thereon. The determination of this question will depend, in theory, upon the nature of the duty of support, as moral or legal. If the duty be merely moral the law will not enforce it, and the father cannot be held liable in the absence of an ex- press promise or authority, or of circumstances, other than the mere relationship, from which such promise or authority may be inferred. In England and a few American states, as already stated, the duty is declared to be merely moral, and hence not a sufficient basis for a contract implied by law. It seems, however, that 23 See 21 Am. & Eng Enc. Law (2d Ed.) 1052; Murphy v. Otten- heimer, 84 III. 39, 25 'Am. Rep. 424; Vancleave v. Clark, 118 Ind. 61, 20 N. E. 527, 3 L. R. A. 519; Lamson v. Varnum, 171 Mass. 237. § 155 DUTIES AND LIABILITIES OF PARENTS. 315 there has been no case in which this precise question has been squarely presented. The cases in which the lia- bility of the father was denied on the ground that his duty was a mere moral- obligation present facts suffi- cient to establish his nonliability, whether the duty be regarded as legal or moral, as, for example, that the father had already performed his duty, or that the ar- ticles furnished were .not necessaries, or that the child had forfeited his right to support, or was emanci- pated.^* If the duty be regarded as legal, thgjfather may be held liable, where he has neglected his duty, upon the mere promise implied by the law. The American courts are practically unanimous in holding that, where the father neglects his duty to furnish support and necessaries to his infant children, and their wants are supplied by others, the*law will imply^ji^ promise on his part to j)ay^_for_such jiecessaries, or authority^ in the child to_contract therefor. In so holding, the courts do not always refer to the nature of the father's duty as legal or moral, but the effect of the decision is, of course, that the duty is legal. Of course the amount for which the father is liable is the reasonable value of the service or necessaries, and not the charge made therefor by the plaintiff.^^ 24 Such cases are Mortimer V. "Wriglit, 6 Mees. & W. 486; Shelton V. Springett, 11 C. B. 452, 73 B. C. L. 452, 20 Eng. L. & Eq. 281; Hunt V. Thompson, 4 111. 179, 36 Am. Dec. 538; Kelley v. Davis, 49 N. H. 187, 6 Am. Rep. 499, Woodruff Cas. 257; Holt v. Baldwin, 46 Mo. 265, 2 Am. Rep. 515; Freeman v. Robinson, 38 N. J. Law, 383, 20- Am. Rep.- 399; Gordon v. Potter, 17 Vt. 443; Jackson v. Mull, 6 Wyo. 55, 42 Pac. 603. 25 21 Am. & Eng. Enc. Law (2d Ed.) 1054; Owen v. White, 5 Port. 316 PARENT AND CHILD. § 156 But persons supplying the wants of the child do so at their peril. Where the child is livings at home or is un- der the father's control, the father Jias the right to de-. cide what is suificient for him, and how and when it shall be procured, and there must be a clear and palpa- ble omission of his duty in this respect to authorize another to act for and charge the expense to him. And the articles furnished must be necessaries. What are necessaries will depend largely upon the situation of the child. It seems that the father should be held lia- ble only where the service rendered or supplies furnish- ed were absolutely necessary to relieve the child from actual want.^^ § 156. Same — ^Wliere child is not living with parent. Where the child is living away from home, the ques- tion of the father's liability for 4iis sujpport will depend upon the circumstances of the case. If the child leaves home voluntarily and re mains aw av_agains^jAe__will^ and without the fault of the father, he foi'feUs his right to_suj)port, and the Tather cannot be held liable there- for, especially where there has been no neglect of duty on his part.^^ But the father is liable where he ajaan-. dons the chijd, or drives him away from home by cruel (Ala.) 435, 30 Am. Deo. 572; Porter v. Powell, 79 Iowa, 151, 44 N. W. 295, 18 Am. St. Rep. 353, 7 L. R. A. 11; Van Valklnburgh v. Watson, 13 Johns. (N. Y.) 480, 7 Am. Dec. 395, Woodruff Cas. 265; Matter of Ryder, 11 Paige (N. Y.) 185, 42 Am. Dec. 109. 26 See Peacock v. Linton, 22 R. I. 328, 47 Atl. 887, 53 L. R. A. 192, and cases cited in note immediately preceding. 2' Hunt V. Thompson, 4 111. 179, 36 Am. Dec. 538; Angel v. Mc- Lellan. 16 Mass. 28. 8 Am. Dec. 119: Raymond v. Loyl, 10 Barb. (N. Y.) 488. See, also. Carney v. Barrett, 4 Or. 171, Woodruff Cas. 268. g 157 DUTIES AND LIABILITIES OF PARENTS. 317 treatment. In such case his liability depends upon the fact that he is in fault.^* So, also, the father may be held liable for the support of his minor children where a divorce has been gTanted to the mother for the father's misconduct, and the children are living with the moth- er. ^^ If the child is away from home with the father's consent, in circumstances not amounting to emancipa- tion, the father is liable for his support to the same ex- tent as if the child were at home.^° If the child is emancipated, the father is not liable for his support.^^ § 157. Duty of protection. The duty of protection is rather permitted than en- .joined by any municipal laws, "nature, in this respect, Avorking so strongly as to need rather a check than a spur." A parent may justify an assault and battery in defense of his child, but the right to protect does not in- clude the right to punish for an injury already in- flicted.32 28 Stanton v. Wilson, 3 Day (Conn.) 37, 3 Am. Dec. 255. 29 See ante, § 153. 30 21 Am. & Eng. Enc. Law (2d Ed.) 1056; Cooper v. McNamara, 92 Iowa, 243, 60 N. W. 522, Woodruff Cas. 2G6. It would seem, in this case, that the child would have implied authority from the parent to procure necessaries not furnished by the latter. 31 Varney v. Young, 11 Vt. 258. See post, § 167. 32 1 Bl. Comm. 450; 21 Am. & Eng. Enc. Law (2d Ed.) 1057; Camp- hell V. Com., 88 Ky. 402, 21 Am. St. Rep. 348; Com. v. Malone, 114 Mass. 295. The duty of a parent to protect his child and shield him from danger is frequently recognized in actions to recover for in- juries to children through the negligence of third persons. In such cases, however, the only bearing the existence of such a duty has in the action is jn connection with the question of the parent's con- tributory negligence, the effect of the duty being to protect the de- fendant from liability, rather than to benefit the child. See John- 31S PARENT AND CHILD. § 159 § 158. Duty of education. The duty of a parent to educate his child is generally recognized as a moral duty, but it is not enforceable at common law.^^ There is very little law on the subject of this parental duty, the matter being rarely brought to the attention of the courts. In this country the duty of educating children is usually discharged by the state under the public school system, leaving the parent free to discharge it himself if he wishes and is able to do gQ_33a § 159. Liability to third persons for torts of cMld. A father is^ot lijible for the torte of his child com- mitted without his knowledge, consent, participation; or son V. Reading City Pass. R. Co., 160 Pa. 647, 28 Atl. 1001, 40 Am. St. Rep. 752, and post, § 164. 33 1 Bl. Comm. 450; 2 Kent, Comm. 195. See Peacock v. Linton, 22 R. I. 328, 47 Atl. 887, 53 L. R. A. 192; Heninger v. Heninger, 90 Va. 271, 18 S. E. 193, Woodruff Cas. 236. In Re Ryder, 11 Paige (N. Y.) 185, 42 Am. Deo. 109, it was held that a son twenty years old, in good health, could not, in a court of equity, compel his mother to furnish him with the means of obtaining a professional education, whatever might he the amount of her property. In England it is held in numerous cases that as between father and mother, when of different religions, the father may determine the religious education of the children. 21 Am. & Eng. Enc. Liw (2d. Ed.) 1057. This question seems not to have arisen in the United States, but it has been held that, although a father has the right, in general, to direct the religious education of his child, he cannot interfere with or control the child's rights of conscience in religious matters, where the child has arrived at the age of discretion. Com. V. Armstrong, 1 Pa. Law J. 393; Com. v. Sigman, 3 Pa. Law J. 252. 33n As to public schools, see 25 Am. & Eng. Enc. Law (2d Ed.) 4. The compulsory education statutes have been held constitutional. State V. Bailey, 157 Ind. 324, 61 N. E. 730, 59 L. R. A. 435; State v. Jackson, 71 N. H. 552, 53 Atl. 1021, 60 L. R. A. 739. § 1S9 DUTIES AND LIABILITIES OP P/RENTS. 319 -Stfflctioiij^ and not in the course of his employment of Ihe child. But where a child commits a tort while en- gaged in his father's service, within the scope of his employment, %r with the knowledge or consent of the father, the father is liable.^* a^Schouler, Dom. Rel. § 263; 21 Am. & Eng. Enc. Law (2d Ed.) 1057; notes in 50 Am. Rep. 383, and 74 Am. St. Rep. 801; Hagerty v. Powers, 66 Cal. 368, 56 Am. Rep. 101; Teagarden v. McLaughlin, 86 Ind. 476, 44 Am. Rep. 332; Smith v. Davenport, 45 Kan. 423, 25 Pac. 851, 23 Am. St. Rep. 737, 11 L. R. A. 429; Meers v. McDowell, 110 Ky. 926, 62 S. W. 1013, 53 L. R. A. 789; Carmonche v. Bonis, 6 La. Ann. 95, 54 Am. Dec. 558; Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336; Chaddock v. Plummer, 88 Mich. 225, 50 N. W. 135, 26 Am. St. Rep. 283; Baker v. Haldeman, 24 Mo. 219, 69 Am. Dec. 430; Paul v. Hum- mel, 43 Mo. 119, 97 Am. Dec. 381, Woodruff Cas. 282; Johnson v. Glid den, 11 S. D. 237, 76 N. W. 933, 74 Am. St. Rep. 795; Andrus v Howard, 36 Vt. 248, 84 Am. Dec. 680; Hoverson v. Noker, 60 Wis. 511 50 Am. Rep. 381, Woodruff Cas. 283; Schaefer v. Osterbrink, 67 Wis 495, 58 Am. Rep. 875; Harris v. Cameron, 81 Wis. 239, 51 N. W. 437 29 Am. St. Rep. 891. CHAPTER IX. THE RIGHTS OF PARENTS. § 160. In General. 161. Right to Custody and Control of Child. 162. Right to Child's Services. 163. Right to Child's Property. 164. Right to Recover for Injuries to Child. § 160. In general. A parent, as such, has certain legal rights with re- spect to his child, which, in a measure, compensate him for discharging the duties and liabilities which we have just considered. It should be noted, however, that the relation of parent and child, so far as the legal benefits growing out of it are concerned, is a relation principally for the benefit of the child. In this respect it differs from the relation of husband and wife and most of the other legal relations, which are usually for the benefit of both parties. Even the rights of parents exist for the benefit of the child, and, as a rule, the exercise of a parental right is in fact the discharge of a parental duty. As has been said: "The exercise of parental authority is not necessarily for the profit of the parent, but for the advantage of the child; the duty of service by the child, being deemed necessary to the proper ex- ercise of parental authority, for its own good. Al- though we still recognize the right of the father to the personal services of his children, that right is simply incidental to the duty of the father to discipline and (320) § 161 RIGHTS OF PARENTS. 321 direct them. His right to personal custody and per- sonal service is secured to him, therefore, in order that, through them, prompted by natural affection, he may succes.ifully impart to tliem habits of industry, methods of thrift, and the means of personal success in life."^^ The recognized rights of parents are the right to the custody and control of the child, the right to the child's services, and a limited right to recover for an injury to the child. § 161. Right to custody and control of child. At common law a father has the paramount right to the custody and control of his minor^ children, this right springing naturally from his duty to maintain, protect, and educate them. But this right is not abso- lute; it may be forfeited by the father's misconduct. And a court of equity will take a child away from the father when he is an unfit person, and the welfare of the child demands it. The child, in such case, will be given preferably to the mother, if a fit person, or to such other person as the court may approve. In all cases, the welfare of the child is the controlling consid- eration by which the court is to be guided.^® 35 Per Clark, J., in Beaver v. Bare, 104 Pa. 58, 49 Am. Rep. 567. See, also, 1 Bl. Comm. 452; 2 Kent, Comm. 203. 30 21 Am. & Eng. Enc. Law (2d Ed.) 1036; note in 2 Am. St. Rep 183; Neville v. Reed, 134 Ala. 317, .32 So. 659, 92 Am. St. Rep. 35; Kelsey v. Green, 69 Conn. 291, 37 Atl. 679, 38 L. R. A. 471; Miller v Miller, 38 Pla. 227, 20 So. 989, 56 Am. St. Rep. 166; Hussey v. V\?hit ing, 145 Ind. 580, 44 N. E. 639, 57 Am. St. Rep. 220; Chapsky v Wood, 26 Kan. 650, 40 Am. Rep. 321; State v. Michel, 105 La. 741, 3C So. 122, 54 L. R. A. 927; Corrle v. Corrie, 42 Mich. 509, WoodrufC Cas 255; Norval v. Zinsmaster, 57 Neb. 158, 77 N. W. 373, 73 Am. St. Rep Long, D. R.— 21. 322 PARENT AND CHILD. § Ibl Upon the death of the father, the mother, if she sur- vives, and no testamentary guardian has been appoint- ed, is entitled to the custody of the child. But except where a statute provides otherwise, the right of a testa- mentary guardian appointed by the father is superior to that of the mother. In some states the mother loses her right of custody by marrying again, but this is not the case in other states ;^''^ and there seems to be no good reason why the mother should lose her right by marry- ing again, unless, in the particular case, her marriage renders her unable properly to care for the child. Many cases Jhave come before the courts in which a parent who had by contract surrendered his right to the custody of his minor child sought afterwards to re- cover possession of the child, in violation of his agree- ment. The decisions are conflicting as to the validity of such agreements. The weight of American author- ity is to the effect that such a contract is valid, and will be enforced against the parent, especially when acted upon, unless the welfare of the child would be "better promoted by not enforcing it.^^ There are able courts, 500; Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831, 14 Am. St. Rep. 726; Mercein v. People, 25 Wend. (N. Y.) 64, 35 Am. Dec. 653, Wood- ruff Cas. 256; Merritt v. Swimley, 82 Va. 433, 3 Am. St. Rep. 115; Kentzler v. Kentzler, 3 Wash. 166, 28 Pac. 370, 28 Am. St. Rep. 21; Cunningham v. Barnes, 37 W. Va. 746, 17 S. E. 308, 38 Am. St. Rep. 57; Nugent v. Powell, 4 Wyo. 173, 33 Pac. 23, 62 Am. St. Rep. 17. 37 21 Am. & Eng. Enc. Law (2d Ed.) 1037; Moore v. Christian, 56 Miss. 408, 31 Am. Rep. 375; In re Van Houten, 3 N. J. Eq. 220, 29 Am. Dec. 707; Armstrong v. Stone, 9 Grat. (Va.) 102; State v. Reuff, 29 W. Va. 751, 6 Am. St. Rep. 676. In this case It was held that an agreement by the father, surrendering the right of custody, was not binding on the mother after the father's death. 38Bonnett v. Bonnett, 61 Iowa, 199, 16 N. W. 91, 47 Am. Rep. 810; § 101 RIGHTS OF PARENTS. 323 however, which hold that such an agreement is contrary to public policy, and void, and is therefore not binding upon the parent, and will not prevent his afterwards regaining the custody of the child from one who has received and cared for it upon the faith of the agree- ment.^^ In the author's judgment, the latter is the true doctrine. The parent does not enjoy the right to the custody of the child solely for his own benefit, but also and principally for the benefit of the child, and he ought not to be permitted to throw off his responsibility to the child by any such contract. All the cases recognize that the welfare of the child is the paramount consider- ation, and it would seem that, wherever the parent's fitness for the trust is established, it might be found, almost as a matter of law, that the welfare of the child would be best promoted by committing it to the care of the parent. Clearly a parent ought not lightly to be deprived of the custody of his child,*" and it is right- ly held that no agreement by which this natural right is surrendered will be enforced unless it is clear, dis- Enders v. Bnders. 16-1 Pa. 266, 30 Atl. 129, 44 Am. St. Rep. 598, 27 L. R. A. 56; Merritt v. Swimley, 82 Va. 433, 3 Am. St. Rep. 115; Stringfellow v. Somerville, 95 Va. 701, 29 S. E. 685, 40 L. R. A. 623; Green V. Campbell. 35 W. Va. 698, 14 S. E. 212, 29 Am. St. Rep. 843; Cunringham v. Barnes, 37 W. Va. 746, 17 S. E. 308, 38 Am. St. Rep. 57; Fletcher v. Hickman, 50 W. Va. 244, 40 S. E. 371, 88 Am. St. Rep. 862. See notes in 88 Am. St. Rep. 866, and 27 L. R. A. 56. 39 21 Am. & Eng. Enc. Law (2d Ed.) 1039; Brooke v. Logan, 112 Ind. 183, 13 N. E. 669, 2 Am. St. Rep. 177; Hussey v. Whiting, 145 Ind. 580, 44 N. E. 639, 57 Am. St. Rep. 220; Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L. R. A. 839; Weir v. Morley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672. See, also, Stapleton v. Poynter, 111 Ky. 264, 62 S. W. 730, 53 L. R. A. 784. 40 Lovell V. House of Good Shepherd, 9 Wash. 419, 37 Pae. 660, 43 Am. St. Rep. 839. 324 PARENT AND CHILD. § 162 tinct, and certain in terms.^^ Of course, an agreement by which a parent consents to the apprenticing or adop- tion of his child as provided by law is valid. Upon the divorce of husband and wife, the court may make such decree as it may deem proper as to the cus- tody and maintenance of their minor children.*^ The usual mode of enforcing the right to the custody of a child is by habeas corpus proceedings.*^ A parent has a right to chastise or otherwise punisli his child in a reasonable and proper manner for the purpose of discipline and correction ; but if, in the exer- cise of this right, he exceeds the bounds of moderation, and wantonly inflicts cruel, merciless, and unnecessary punishment upon the child, he may be prosecuted crim- inally therefor.*^^ § 162. Eig^ht to child's services. A father has a right to the services of his minor child unless he has in some way relinquished this right;** and if the child works for another, the father, and not the child, has a right to recover for such services, un- 41 Miller v. Wallace, 76 Ga. 479, 2 Am. St. Rep. 48; Nerval v. Zinsmaster, 57 Neb. 158, 77 N. W. 373, 73 Am. St. Rep. 500. ■42 See ante, § 145. *3 See cases cited in notes to this section. "ai Bl. Comm. 452; Fletcher v. People, 52 111. 395, WoodrufE Cas. 281: State v. Washington, 104 La. 443, 29 So. 55, 81 Am. St. Rep. 141; State v. Jones, 95 N. C. 58S, 59 Am. Rep. 282; Johnson v. State, 2 Humph. (Tenn.) 283, 36 Am. Dec. 322. The parent may delegate to another the power to punish the child. Rowe v. Rugg, 117 Iowa, .606, 91 N. W. 903, 94 Am. St. Rep. 318. I" 21 Am. & Bng. Enc. Law (2d Ed.) 1039. See cases cited in notes immediately following, and to sections 164, 167, post. § 162 RIGHTS OF PARENTS. 3]5 less the fatlier has otherwise agreed.''^ T4iis right seems to be allowed as a compensation for the dutj; of niain- tenance. The father may waive his right either by per- mitting the child to contract for and collect his own wages, or by his crwQ failure to provide for the child, thus forcing him to earn his own living.*" A father has ordi- narily no right to the services of an adult child, but if the child continues to live with and render service to the father, it will ordinarily be presumed that such services were rendered gratuitously, and the child cannot recover therefor, in the absence of a promise -to pay for them.*'' The same rule applies to services rendered by a child to his stepparent,*® or to any one else in loco parentis *^^ Since a father has a right to his child/s services, he may recover damages from anyone who wrongfully de- prives hm.,of such services;*^ and, moreover, since the child's earnings belong to the father, they are subject to the claims of his creditors to the same extent as any 43 21 Am. & Eng. Bnc. Law (2d Ed.) 1040; Hunt v. Adams, 81 Me. 356, 17 Atl. 298, 3 L. R. A. 608; Bishop v. Shepherd, 23 Pick. (Mass.) 492, WoodrufE Cas. 273. A father may make contracts hir- ing his child to another. New v. Southern R. Co., 116 Ga. 147, 42 S. B. 391, 59 L. R. A. 115. 46 Cloud V. Hamilton, 11 Humph. (Tenn.) 104, 53 Am. Dec. 778, "Woodruff Cas. 275. See post, § 167. 4T 21 Am. & Eng. Enc. Law (2d Ed.) 1061; Zimmerman v. Zim- merman, 129 Pa. 229, 15 Am. St. Rep. 720. 48 Harris v. Smith, 79 Mich. 54, 44 N. W. 169, 6 L. R. A. 702; Ellis V. Gary, 74 Wis. 176, 42 N. W. 252, 17 Am. St. Rep. 125. See post, § 169. 48a Murphy v. Murphy, 1 S. D. 316, 47 N. W. 142, 9 L. R. A. 820; Hall V. Finch, 29 Wis. 278, 9 Am. Rep. 559. 49 Lawyer v. Friteher, 130 N. Y. 239, 29 N. E. 267, 27 Am. St. Rep. 521; Gulf, etc., R. Co. v. Redeker, 75 Tex. 310, 12 S. W. 855, 16 Am. St. Rep. 887. See post, § 164. 326 PARENT AND CHILD. § 163 of his other property,^" though, of course, the creditor could not force the debtor to ^vork himself, or make his children work, to pay the debt.^^ Where the father is dead, or the parents have been divorced, and the custody of the children awarded to the mother, the mother succeeds to the father's right to the children's services.^^ So, also, a person standing m loco parentis is entitled to the child's services.^ ^'^ § 163. Right to child's property. A parent, as such, has no interest in or right to prop- erty belonging to the child, and cannot in any way con- trol, manage, or dispose of it. If, therefore, the father of a child owning property wishes to manage or deal with such property in any way, it will be necessary for him first to be duly constituted guardian of the child, 00 Godfrey v. Hays, 6 Ala. 501, 41 Am. Dec. 58; StuiflDaStlL y. Anderson, 46 Kan. 541, 26 Pac. 1045, 26 Am. St. Rep. 121; Schuster V. Bauman Jewelry Co., 79 Tex. 179, 15 S. W. 259, 23 Am. St. Rep. 327. But the father may emancipate the son, giving him a right to his own earnings, and In such case the son's earnings are not subject to the claims of the father's creditors. See post, § 167. 51 See Halllday v. Miller, 29 W. Va. 424. 1 S. E. 821, 6 Am. St. Rep. 653. 52 21 Am. & Eng. Enc. Law (2d Ed.) 1042; Matthewson v. Perry, 87 Conn. 435, 9 Am. Rep. 339; Horgan v. Pacific Mills, 158 Mass. 402, 33 N. E. 581, 35 Am. St. Rep. 504, Woodruff Cas. 285; Ham- mond V. Corbett, 50 N. H. 501, 9 Am. Rep. 288; Fulton v. Pulton, 52 Ohio St. 229, 39 N. E. 729, 49 Am. St. Rep. 720, 29 L. R. A. 678. See cases cited in note 64, § 164, post. Some authorities allow the mother the right to the child's wages only while the child re- mains a member of her family and is supported by her. HoUings- worth V. Swedenborg, 49 Ind. 378, 19 Am. Rep. 687. 62a Clark V. Boyer, 32 Ohio St. 299, 30 Am. Rep. 593. See post, I 169. § 164 RIGHTS OP PARENTS. 327 with power as guardian to manage the child's estate.^^ Since in this country it is not common for children whose parents are living to own property in their own right, cases in which this doctrine is applied are not of frequent occurrence. It should be added that articles of clothing and the like, given by the father to the child for his support, belong to the father, and he may re- cover for the loss or injury thereof.^* § 164. Eight to recover for injuries to child. A parent cannot recover for an injury, as such, lO the person of his child, since, as we shall hereafter see,^^ this right belongs to the child; but such injury may give rise to an independent right in favor of the parent. Thus, in the case of personal injury, the parent may recover for the l^s_ of the child's servi ces, and for any expenses f or medical atten danc e, etc., incurred by him in consequence of the injury. This right is based upon the technical relation of master and servant, and not upon that of parent and child. And in England the parent is not allowed to recover if the child was too young to render any service; but in the United States a more liberal rule prevails, and the parent may re- cover, at least for the expens e incurre d, although the child's services may be of no substantial value. And 63 1 Bl. Comm. 453; 21 Am. & Eng. Enc. Law (2d Ed.) 1044; iiote in 89 Am. St. Rep. 268; Linton v. Walker, 8 Pla. 144, 71 Am. Dec. 105; Shanks v. Seamonds, 24 Iowa, 131, 92 Am. Dec. 465; Banks V. Conant, 14 Allen (Mass.) 497, Woodruff Gas. 279. 64 Richardson v. Louisville, etc., R. Co., 85 Ala. 559, 5 So. 308, 2 L. R. A. 716; Dickenson v. Winchester, 4 Gush. (Mass.) 114, 50 Am. Dec. 760; Bpps v. Hinds, 27 Miss. 657, 61 Am. Dec. 528. 65 See post, § 199. 328 PARENT AND CHILD. § 164 it is not necessary that services be actually rendered; it is sufficient that the parent has a right to command them.^** The rule permitting a recovery by the parent applies with peculiar force to the case of the seduction of an infant daughter, for in such case the daughter herself, being a party to the act, has at common law no right of action.^^ In this case the theory of an injury to the master in loss of service "is now little more than a legal fiction, used as a peg to hang a •sustantial award of damages upon as compensation, not to the master, but to the head of the family."^^ And in some states this legal fiction is abolished by statute, and an action for seduction may be maintained without allegation or proof of loss of service.^* The fact that the child is an adult will not defeat the parent's right of action where the child remains in his service."" A parent has, at common law, no right of action for 66 21 Am. & Bng. Enc. Law (2d Ed.) 1044-1049; Baker v. Flint, etc., R. Co., 91 Mich. 298, 51 N. W. 897, 30 Am. St. Rep. 471, 16 L. R. A. 154; Texas, etc., R. Co. v. Brick, 83 Tex. 526, 18 S. W. 947, 29 Am. St. Rep. 675; Holdridge v. Mendenhall, 108 Wis. 1, S3 N. W. 1109, 81 Am. St. Rep. 871, and cases cited in notes immediately following. 5T25 Am. & Eug. Enc. Law (2d Ed.) 193; notes in 44 Am. Dec. 162, and 76 Am. St. Rep. 659; Blagge v. Ilsley, 127 Mass. 191, 34 Am. Rpp. 361; Lawyer v. Fritcher, ISO N. Y. 239, 29 N. E. 267, 27 Am. St. Rep. 521; Da-vidson v. Abbott, 52 Vt. 570, 36 Am. Rep. 767. »*■ Simpson v. Grayson, 54 Ark. 404, 26 Am. St. Rep. 52. 69 See Anthony v. Norton, 60 Kan. 341, 56 Pac. 529, 44 L. R. A. 757. «» Anthony v. Norton, 60 Kan. 341, 56 Pac. 529, 44 L. R. A. 757; Davidson v. Abbott, 52 Vt. 570, 36 Am. Rep. 767. § 1G4 RIGHTS OP PARENTS. 329 the death of a child, but such right is generally given by statute.^^ If the parent's own negligence contributed to the in- jury, his right of action is thereby defeated, unless the injury was caused by the wanton, reckless, or willful negligence of the defendant."'^ So, also, the contribu- tory negligence of the child will defeat the parent's ac- tion.«3 Where the mother has a right to the child's services, as, for example, where the father is dead, she may re- cover for an injury to the child, as the father might have done.®* 618 Am. & Eng. Enc. Law (2(J Ed.) 891; note in 41 L. R. A. 807; Fox V. Oakland Consolidated St. R. Co., 118 Gal. 55, 50 Pac. 25, 62 Am. St. Rep. 216; Atlanta, etc., R. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550, 44 Am. St. Rep. 145, 26 L. R. A. 553; Gulf, etc., R. Co. v. Beall, 91 Tex. 310, 42 S. W. 1054, 41 L. R. A. 807. 62 Pratt Coal, etc., Co. v. Brawley, 83 Ala. 371, 3 Am. St. Rep. 751; Westerberg v. Kinzua Creek, etc., R. Co., 142 Pa. St. 471, 21 Atl. 878, 24 Am. St. Rep. 510; Western Union Tel. Co. v. Hoffman, 80 Tex. 420, 15 S. W. 1048, 26 Am. St. Rep. 759. It is not negli- gence per se for parents to permit their infant children to be upon city streets unattended. Fox v. Oakland Consolidated St. R. Co., 118 Cal. 55, 50 Pac. 25, 62 Am. St. Rep. 216; Holdridge v. Mendenhall, 108 Wis. 1, 83 N. W. 1109, 81 Am. St. Rep. 871. 63 See Pratt Coal, etc., Co. v. Brawley, 83 Ala. 371, 3 Am. St. Rep. 751; Holdridge v. Mendenhall, 108 Wis. 1, 83 N. W. 1109, 81 Am. St. Rep. 871. 6* Ohio, etc., R. Co. v. Tindalf, 13 Ind. 366, 74 Am. Dec. 259; Anthony v. Norton, 60 Kan. 341, 56 Pac. 529, 44 L. r; A. 757; County Commissioners v. Hamilton, 60 Md. 340, 45 Am. Rep. 739; Horgan v.. Pacific Mills, 158 Mass. 402, 33 N. E. 581, 35 Am. St. Rep. 504, Woodruff Gas. 285; Furman v. Van Sise, 56 N. Y. 435, 15 Am. Rep. 441. A divorced wife, having custody of her child, cannot recover for an injury to the child while the father is still charged with the duty of supporting it. Keller v. St. Louis, 152 Mo. 596, 54 S. W. 438, 47 L. R. A. 391. CHAPTER X, CERTAIN MISCELLANEOUS MATTERS. § 1C5. Duties of Child to Parent. 166. Transactions Between Parent and Child. 167. Emancipation of Child. 16S. Illegitimate Children. 169. Stepchildren. § 165. Duties of child to parent. The duties which children owe to their parents are for the most part moral duties merely. They are de- scribed by Blackstone as follows : "The duties of chil- dren to their parents arise from a principle of natural justice and retribution. For to those Avho gave us ex- istence we naturally owe subjec tion and o bedience dur- ing our minority, and honor and reverence ever after. They who protected the weakness of our infancy are entitled to our protection in the infirmity of their age. They who, by sustenance and education, have enabled their offspring to prosper, ought in return to be sup- ported by that offspring in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents which are enjoined by posi- tive laws."*"' So, also. Chancellor Kent says: "The duties that are enjoined upon children to their parents are obedience and assistance during their own minor- OB 1 Bl. Comm. 453. (330) § 166 MISCELLANEOUS MATTERS. 33I ity, and gratitude and reverence during tlie rest of their lives. Tliis, as well as the other primary duties of domestic life, have generally been the object of mu- nicipal law.""® As pointed out by these authors, the filial duties of obedience and maintenance were en- forced under the laws of some of the ancient states, but by our law they are regarded as moral, rather than as legal, duties. At common law, a child is not liable for the support of an infirm and indigent parent,"'' but under the various poor laws, enacted for the benefit of the public to prevent such persons from becoming a public charge, children may, in some cases, be com- pelled to support their parents."® The duty of obedi- ence, ^^'hich by the Jewish law was enforced by pun- ishing disobedience with death,"" is recognized by our law only to the extent that a parent is permitted to pun- ish his child to a reasonable extent for disobedicHce.'" § 166. Transactions between parent and child. A parent and his child are under no legal disability, so far as contracts or other dealings with each other are concerned, by reason of their relationship alone. . Cooney v. Woodburn, 74. Cooper V. Cooper, 26, 65, 137. V. Lloyd, 122, 123. V. McNamara, 156. Coover v. Davenport, 29. Copeland v. Boaz, 62. 38S TABLE OF CASES. [KEFERENCES ABE TO SECTIONS.] Copeland v. Copeland, 22. Corcoran v. Corcoran, 64, 67. Cornell v. Gibson, 98. Corr's Appeal, 97. Corrie v. Corrie, 161. Coryell v. Colbaugh, 29. Coughlln V. Ryan, 68. County Commissioners v. Hamilton, 164. Cowell V. Phillips, 99, 120, 123. Cowles V. Cowles, 136. Cox V. Boyce, 190. V. Combs, 20. V. State, 62. Cralle v. Cralle, 143. Cram v. Burnham, 52. Cramer v. Hart, 93. V. Reford, 68. Crane v. McGinnls, 64. Cranston v. Cranston, 72. Crater v. Crater, 95, 101. Cravens v. Booth, 89. Crawford v. Doggett, 126. V. State, 20. Crehore v. Crehore, 23. Crenshaw v. Julian, 89. Crittenden v. Schermerhorn, 124. Crofut V. Layton, 71. Cropsey v. Ogden, 20. Cross V. Grant, 108. Cruger v. Douglas, 62. Crumline v. Crumline, 98. Crump V. Morgan, 18. Culmer v. Wilson, 126. Gumming v. Gumming, 140. Cummington v. Belchertown, 18, 23, 142. Cunha v. Hughes, 76. Cunningham v. Barnes, 161. V. Irwin, 116, 119, 120, 124. V. Reardon, 115, 116, 119. Curran v. Abbott, 183. Curry v. American Freehold Land Mortgage Co., 89. Gushing v. Hederman, 126. TABLE OP CASES. 389 [references are to sections.] Cutler V. Cutler, 63. Cutter V. Butler, 86. D. Daggett V. Wallace, 29. D'Agullar v. D'Aguilar, 136, 140. Dallas V. Sellers, 108. Dalrymple v. Dalrymple, 30, 31. Dalton V. State, 168. Danforth v. Danforth, 137. Daniel v. Daniel, 67. V. Mason, 89. Darlington's Appeal, 96. Daubney v. Hughes, 123. Daughtry v. Thweat, 182. Davey v. Turner, 85. Davis V. Davis, 138. V. Guarnieri, 109. V. Harkness, 175, 181. V. State, 127. Davidson v. Abtott, 164. Dayton v. Walsh, 68, 75. Dean v. Richmond, 90. V. Metropolitan El. R. Co., 96. Debenham v. Mellon, 99. De Berry v. Wheeler, 89. Decker v. Decker, 140. Deeds v. Strode, 26. Deegan v. Deegan, 178, 182, 186, 188. Deer, Wells & Co. v. Bonne, 91. De Farges v. Ryland, 78, 93. De La Montanya v. De La Montanya, 142. Delpit v. Young, 23. Dempster Mill Mfg. Co. v. Bundy, 59, 97. Den V. Hardenbergh, 76. Denison v. Denison, 30, 33. Dennis v. Dennis, 130, 132, 138, 140. Dennison v. Page, 149. Dent v. Pickens, 29. Depas V. Ma-yo, 80. De Ruiter v. De Ruiter, 96. Despain v. Wagner, 97. 390 . TABLE OF CASES. [EEFEEENCES ABE TO SECTIONS.] Desribes v. Wilmer, 174. Detrich v. Migatt, 193. Devanbagh v. Devanbagh, 14. Dickenson v. Winchester, 163. Dickerson v. Brown, 37. Dickerson's Appeal, 71. Dickey v. Converse, 76. Dickson, v. Dickson, 20. Dietzman v. Mullin, 106. Dillon V. Dillon, 38. Di Lorenzo v. Di Lorenzo, 4, 23. Dimond v. Sanderson, 97. Ditmar v. Ditmar, 153. Dobbel's Estate, In re, 79. Dobbin v. Cordmer, 89. V. Dobbin, 83. V. Hubbard, 83. Dodd V. St. John, 64. Doe V. Roe, 108. Doerr v. Porsythe, 142. Donahue v. Hubbard, 95. Donnelly v. Donnelly, 38. V. Strong, 23. Doolittle V. Doolittle, 137. Dorrance v. Scott, 83. Doss V. Campbell, 80. Dougherty v. Snyder, 63 Douglass V. Ferris, 188. Dowe V. S:l ith, 124. Doyle V. Rolwing, 143. Draper v. Joiner, 182, 183. Drennan v. Douglas, 29. Driggs & Co.'s Bank v. Norwood, 89, 98. Dudley v. Dudley,. 72. Duffies V. Duffies, 106. Dunbarton v. Franklin, 33. Duncan v. Duncan, 32. Dunham v. Dunham, 142. Dunn V. Lanaster, 67. Dupre V. Boulard, 43. Durant v. Durant, 140. Durham v. Durham, 18. TABLE OF CASES. 391 [EEFERENCES ABE TO SECTIONS.] Durell V. Hayward, 64. Dyer v. Brannock, 30, 33. B. Eames v. Sweetser, 115. Earl V. Dresser, 172, 178. V. Godley, 40. Earle v. Earle, 64. Eastland v. Burchell, 121. Easton v. Somerville, 183. Eaton V. Eaton, 20, 30, 52. V. Hill, 198. Edgerton v. Edgerton, 64. Edson V. Edson, 141. Edwards v. Davis, 166. V. Wessinger, 126. Egbert v. Greenwalt, 108, 149. Eickhoff V. Elckhoff, 144. Eldred v. Eldred, 49, 51, 54. Eliot V. Eliot, 16, 38. Elliott V. Elliott, 20. V. Gurr, 8, 13. Ellis V. Cory, 162, 169. Ellis' Estate, In re, 142. Emmett v. Norton, 99. Enders v. Enders, 161. Epps V. Hinds, 163. Erie City Passenger R. Co. v. Schuster, 99. Erwin v. Puryear, 75. Eshbach v. Eshbach, 136. Etherington v. Parrot, 114. Evana v. Cleary, 92. V. Evans, 97, 134, 136. V. O'Connor, 108. V. Pearce, 153, 175. P. Fairchlld v. Pairchlld, 23, 142. Parley v. Farley, 24, 33, 35, 94. Farmer v. Farmer, 96. Parr v. Farr, 23. Pawcett V. Fawcett, 98. 392 TABLE OF CASES. [REFERENCES ARE TO SECTIONS.] Felt V. Felt, 142. Fennell v. Drinkhouse, 76. Fenton v. Reed, 15, 31, 52. Ferguson v. Lowery, 185. V. Neilson, 126. Ferlat v. Gojon, 22. Fernsler v. Moyer, 179. Ferrell v. Thompson, 67. Fessenden v. Jones, 184. Fiedler v. Howard. 76. Field V. Field, 62. Filer v. New York Cent. R. Co., 109. Finley v. Finley, 64. First Nat. Bank v. Shaw, 83, 92. Fischli V. Fischli, 64. Fisher v. Bernard, 16. V. Fisher, 140. Fitzgerald v. St. Paul, etc., R. Co., 199. Flannigan v. Howard, 152. Fleet V. Perrins, 67. Fleming v. Fleming, 136. V. People, 50. V. Town of Shenandoah, 109. Flesh V. Lindsay, 26. Fletcher v. Ashley, 72. V. Hickman, 161. V. People, 161. Flynn v. Baisley, 167. V. Messenger, 99, 116, 117. Foley V. Mut. L. Ins. Co., 173. Fonda v. Van Horn, 172. Foot V. Card, 106, 107 Foote V. Hayne, 29. V. Nickerson, 146. Forney v. Hallacher, 49, 56. Fornshill v. Murray, 4, 8, 33, 40. Forster v. Fuller, 184. Foss V. Foss, 23. V. Hartwell, 153. Foster v. Com., 197. V. Hanchett, 29. T. Means, 18. TABLE OF CASES. 393 [references are to sections.] Fowler v. Shearer, 85. V. Trebein, 95, 96. Fox V. Hicks, 190. V. Oakland Consolidated St. R. Co., 164. Francis v. Francis, 30. Franke v. Franke, 14, 23. Frankel v. Frankel, 101. Franklin v. Franklin, 10, 31. Franklin's Adm'r, Appeal of, 126. Frasher v. State, 19, 39. Fratini v. Caslini, 107. Freeman v. Boland, 198. V. Robinson, 155. Freeman's Appeal, 77, 82, 92. Freto V. Brown, 169. Fritz V. Fritz, 136, 137. Fry V. Derstler, 108. Fuller V. Fuller, 93. V. McHenry, 91. Fulmer v. Fulmer, 14. Fulton V. Fulton, 153, 162. Furgeson v. Jones, 152. Furman v. Van Sise, 164. Furnish v. Missouri Pac. R. Co., 109. Fuss V. Fuss, 80. (i. G. V. M., 38. GafCord v. Dunham, 117. V. Strauss, 84. Gall T. Gall, 15, 30, 32, 51, 52. Galusha v. Galusha, 146. Gardner v. Gardner, 136. Garrett v. State, 128. Garvin v. Williams, 185. Gaston v. Gaston, 144. Gates V. Whetstone, 87. Gathings v. Williams, 8, 15, 38. Gelzer v. Gelzer, 72. Gerdes v. Weiser, 169. German Ins. Co. v. Bartlett, 98. Gernard v. Gernard. 106. 394 TABLE OF CASES. [REFERENCES ARE TO SECTIONS.] Gilchrist v. Bale, 106. Gilflllen's Estate, 175. Gilkerson-Sloss Commission Co. v. Salinger, 91. Gill V. Read, 99, 116, 120, 122. V. State, 126. Gillespie v. Bailey, 193. Gillett V. Wiley, 185. Gilley v. Gilley, 153. Gilman v. Andrus, 99, 116. Glas V. Glas, 97. Glass V. Bennett, 106. V. Glass, 15. Gleason v. Boston, 153. V. Knapp, 108. Glocke V. Glocke, 166. Glover v. Olcott, 59. Gluck V. Cox, 80. Godfrey v. Hays, 162. V. State, 197. Golding's Petition, 195. Gongler v. State, 61. Goodrich v. Tracy, 99. Gordon v. Gordon, 15, 135. V. Potter, 155. V. State, 197. Goshen v. Stonington, 34, 37. Govier v. Hancock, 120, 122. Grace v. Hale, 193. Grant v. Fitchburg, 199. V. Grant, 65. Grattan v. Grattan, 175. Graves v. Graves, 64. Gray v. Thacker, 112. Gregory v. Gregory, 4. V. Paul, 82, 90. V. Winston, 72. Green v. Burke, 195. V. Campbell, 161. V. Green, 136. V, Spencer, 29 V. State, 19, 39, 56. Greene v. Greene, 141, 144* TABLE OF CASES. 395 [EEFEIiENCES ABB TO SECTIONS.] Greenhow v. James, 19, 150. Gridley v. Wynant, 87. Grim v. Carr, 26. Grimm, Estate of, 31, 52. Gruig V. Lerch, 29. Grubb V. Suit, 29. Guest V. Shipley, 38. Gulf, etc., R. Go. v. Beall, 164. V. Redeker, 162. Gulick V. Gulick, 29. H. Haas V. Shaw, 82, 91. Hackett v. Hackett, 64. Haddon v. Haddon, 144. Hadley v. Hey wood, 106. V. Rash, 53, 54, 57. Hagerty v. Powers, 159, Haggett V. Hurley, 91. Hahn v. Bettingen, 29. Hair v. Hair, 63, 77. Hairston v. Hairston, 63. Halbrook v. State, 15, 49, 53, 56. Hall V. Finch, 162. V. Green, 145, 153. V. Hancock, 193. V. Wright, 29. Halliday v. Miller, 162, 167. Hallis V. Francois, 83. Hamaker v. Hamaker, 18, 134, 138. Hamilton v. Booth, 68. V. Smith, 72. Hammond v. Corbett, 162. V. Hammond, 138. Hampstead v. Plaistow, 22. Hancock v. Merrick, 124. Handy v. Foley, 126. Hanks v. Naglee, 29. Hanover v. Turner, 115, 142. Hanselman v, Dorel, 93. Harbeck v. Harbeck, 139. Hardie v. Hardie, 136, 137. 396 TABLE OF CASES. [references ABE TO SECTIONS.] Harding v. Alden, 40, 63. V. Harding, 62. Hare v. Gibson, 124. Harford v. Morris, 22. Harmon v. James, 84. V. Old Colony R. Co., 68, 109. Harper v. Archer, 193. Harral v. Harral, 80. Harratt v. Harratt, 136. Harrigan v. Harrigan, 138. Harris v. Cameron, 159. V. Harris, 15, 33, 142, 144, 145. V. Orr, 165. V. Smith, 162. V. Taylor, 67, 83. V. Tyson, 29. Harrison v. Harrison, 23, 62, 63. V. State, 8, 13, 37. Harrod v. Harrod, 18, 30, 50. Hart V. Knapp, 108. Harteau v. Harteau, 63, 142. Hartfield v. Roper, 199. Harvard Pub. Co. v. Benjamin, 88. Harvey v. Farnie, 3. Hascall v. Hofford, 63. Hauer, Estate of, 98. Haussman v. Burnham, 96. Haviland v. Halstead, 29. Hawkins v. Front St. Cable R. Co., 109. V. Providence, etc., R. Co., 73. Hawthorne v. Beckwith, 112. Hayden v. Vreeland, 29. Hayes v. People, 31, 35. Haymond v. Haymond, 63. Haynes v. Nowlln, 106. Haynie v. Hall, 172. Hayward v. Barker, 83, 90. Heacock v. Heacock, 58, 82, 97. Heckle v. Lurvey, 126. Heilman v. Com., 197. Helmes v. Franciscus, 64, 73, 95. Hemmenway v. Towner, 149. TABLE OF CASES. 3V7 [KEFEUENCES AKE TO SECTIONS.] Henderson v. Henderson, 146. V. Isaacs, 95, 96, 97. Heninger v. Heninger, 144, 158. Henly v. Wilson, 26. Henneger v. Lomas, 16, 143. Hennessy v. Bavarian Brewing Co., 169. Henning, Estate of, 186, 190. Henry v. Sneed, 100. Hernandez, Succession of, 20, 46. Herold v. Herold, 137. Hervey v. Moseley, 16, 17, 167. Hibbette v. Baines, 161. Hick V. Hicli, 142. Hicltman v. Hickman, 134, 138. Hicks V. Skinner, 63. V. Smith, 168. HigginS V. Breen, 26, 65. Higham v. Vanosdol, 106. Hiler v. People, 31, 32, 51, 54, 56. Hiles V. Fisher, 76. Hill V. Sewald, 99. V. State, 197. V. West, 89. V. Wynn, 67. Hills V. State, 10, 40. Hilton V. Roylance, 4, 9, 10, 15, 30, 31, 38, 146. Hinds V. Hinds, 64. Hiram v. Pierce, 15, 17, 40. Hite V. Com., 195. Hoaglin v. Henderson, 91. Hobbs, In re, 19. Hobbs y. Harlan, 181. V. Nashville, etc., R. Co., iSi. Hodgkinson v. Fletcher, 121. • V. Hodgkinson, 106. Hoffman v. HofCman, 23, 142. V. McFadden, 100. Holdridge v. Mendenhall, 164. Holleman v. Harward, 109. Hollingsworth v. Swedenborg, 162. Holloway v. Griffith, 29. Holloway's Assignee v. Rudy, 83. 398 TABLE OP CASES. [references are to sections.] Holmes v. Holmes, 4, 9, 33, 49, 51, 71, 107. Hoist V. State, 196. Holt V. Baldwin, 155, 156. Holtz V. Dick, 17, 106. Homan v. Earle, 29. Honseal v. Gibbes, 175. Hood V. Hood, 63. T. State, 15, 142. Hopson V. Fowlkes, 143. Horgan v. Pacific Mills, 162, 164. Hoshall V. Hoshall, 136. Hotchkins v. Hodge, 29. Houghton V. Rice, 107. Houliston V. Smith, 119. House V. Alexander, 193. Houston, etc., R. Co. v. Boozer, 199, Hoverson v. Noker, 159. Howard v. Cassels, 182. V. Menifee, 73. Hubbard v. Hubbard, 140. Hubbell V. Hubbell, 142. Hubble V. Fogartie, 126. Huchting v. Engel, 198. Hudnall v. Ham, 86, 168. Hughes V. Goodale, 182. Hulett V. Carey, 4, 9, 31. Humphreys v. Douglass, 198. Humphries v. Davis, 152. Hunt V. Adams, 1G2. V. De Blaquire, 119, 124. V. Hayes, 119. V. Hunt, 63. V. Johnson, 96. V. Peake, 29. • V. State, 128. V. Thompson, 155. V. Winfleld, 109. Hunt's Appeal, 15, 52. Hunter v. Boucher, 120. V. Hunter, 38, 53, 57. Hurst V. Goodwin, 199. Husband v. Husband, 153. TABLE OF CASES. 399 [BEFERENCES ARE TO SECTIONS.] Hussey v. Whiting, 161. Hutcheson v. Peck, 106. Hutchins v. Kimmell, 30, 33, 49, 50, 55, 56, 57. Hyde v. Hyde, 4, 7, 41. Hynes v. McDermott, 51, 54, 55. Ihl V. Forty-second Street, etc., R. Co., 199. Ingersoll v. Ingersoll, 137: Ingram, In re, 79. Ives V. McNicoll, 150. J. Jackson v. Jackson, 15, 33, 43, 51, 55, 75. V. Mull, 155. V. Stevens, 95. V. Vanderheyden, 83, 89. V. Wlnne, 22, 31. • Jacobs V. Featherstone, 91. Jacobsen v. Siddal, 108. Jacques v. Methodist Episcopal Church, 74. James' Estate, In re, 142. Jamesville, etc., R. Co. v. Fisher, 195. Jenkins v. Jenkins, 18, 54. V. Walter, 183. Johnson v. Caulkins, 29. V. Coleman, 141. V. Glidden, 159. V. Johnson, 6, 19, 38, 40, 53, 54, 76, 97, 136, 137, 188. V. Reading City Pass. R. Co., 157. V. State, 161. V. Sutherland, 83. V. Vail, 74. Johnston v. Allen, 38. V. Sumner, 121. Johnstone v. Taliaferro, 168. Jones V. Chenaultj 97, 100. V. Clifton, 96. V. Com., 19. V. Jones, 34, 50, 51, 54, 75, 131, 140, 142. V. Lament, 146. 400 TABLE OF CASES. [KEFEEENCES ABE TO SECTIOKS.] Jones V. Reid, 68. V. Somerville, 71. Junction R. Co. v. Harris, 70, 75. K. Kaiser's Estate, 146. Kanawha Valley Bank v. Atkinson, 98. Karren v. Karren, 141. Keegan v. Smith, 124. Keen v. Hartman, 126. Keller v. Hicks, 112. V. Phillips, 99, 114, 115, 123. T. St. ■Louis, 153, 164. Kelley v. Davis, 155. V. New York, N. H. & H. R. Co., 100. V. Riley, 29. Kelly V. Drew, 53. V. Kelly, 60, 136. V. Renfro, 29. • V. Scott, 13, 142. V. Stevenson, 86. Kelsey v. Green, 161. Kempson v. Kempson, 142, Kentzler v. Kentzler, 161. Kenyon v. Farris, 116. Kern v. Field, 142, 143. Kerr v. Urie, 84. V. Vasser, 68. Kevan v. Waller, 174. Keyes v. Keyes, 108. Kies V. Young, 112. Kilburn v. Kilburn, 31, 62, 139. Kimball v. Keyes, 115, 123. V. Kimball, 132. King V. Green, 94. V. King, 98. Kinney v. Com:., 19, 42, 43, 45, 47, Kinnier v. Kinnier, 142. Kirk V. Chinstrand, 119. Koonce v. Wallace, 16. Knapp V. Smith, 84. Kneeland v. Bnsley, 80. TABLE OP CASES. 401 [references are to sections.] Kneil v. Egleston, 97. Knowack, Matter of, 175. Konigmacher v. Kimmel, 183. Kraft V. Wickey, 179. Kraxberger v. Rolter, 29. Kriegler v. Smith, 99, 114. Kroessin v. Keller, 108. Kromer v. Friday, 54. Kronskop v. Shontz, 64, 75. Kujec V. Goldman, 26, 108. Kurtz V. Frank, 29. V. St. Paul, etc., R. Co., 179. L. V. L., 14. Laooste v. Guidroz, 22. Lamar v. Micou, 179, 183, 190. Lamb v. Belden, 112. Lamson v. Varnum, 155. Lanctot v. State, 55, 57. Landmesser's Appeal, 182. Lane v. Bryant, 126. V. Schlemmer, 89. Langdon v. Langdon, 140. Larson v. Chase, 64. Lataillade v. Orena, 188. Latham v. Latham, 136, 137, 140. Laurence. V. Laurence, 57. Law V. Com., 197. Liw's Estate, In re, 183, Lawrence v. Cooke, 29. V. Lawrence, 61. V. Nelson, 141, 142. Lawyer v. Fritcher, 162, 164. Lea V. Lea, 137, 139, 144. Leake v. Lucas, 64. Leavitt v. Leavitt, 23, 38. Lee V. Savannah Guano Co., 65. V. State, 35. Leete v. State Bank, 75. Lellis V. Lambert, 107. Lenders v. Thomas, 182. 402 TABLE OP CASES. [UEFERENCES ARE TO SECTIONS.] Leonard v. Braswell, 15, 150. V. Leonard, 138. Letters v. Cady, 6, 10. Lewis, Succession of, 178. Lewis V. Lee, 90. V. Lewis, 18, 23, 138. V. Tapman, 29. Libbey v. Berry, 103. Lide V. Park, 84. Lightfoot V. Colgin, 71. Ligonia v. Buxton, 34. Lines v. Lines, 71. Linhart v. State, 189. Linton v. Walker, 163. Litowich V. Litowich, 142. Little V. Little, 4. Livermore, Estate of, 186. Llvingsttin v. Superior Court, 64. Lloyd V. Taylor, 85. Locke V. McPherson, 67, 79, 80. Lockridge v. Lockridge, 64. Lohr's Appeal, 98. Loker v. Gerald, 63, 142. Londonderry v. Chester, 31, 33, 34. Long V. Grosson, 89. V. Long, 23. Loomis V. Ruck, 83. Louisville, etc., R. Co. v. Blythe, 182. Louisville, N. A. & C. R. Co. v. Greek, 109. Louisville & N. R. Co. v. McBlwaln, 109. Louisville, St. L. & T. R. Co. v. Stephens, 89. Love V. Moynehan, 90. Lovell V. House of Good Shepherd, 161. V. Minot, 183. Lowery v. Cote, 198. Lynch v. Smith, 199. Lynde v. Budd, 193. V. Lynde, 142. Lyon V. Lyon, 64. Lyons v. Yerex, 79. Lyon's Will, In re, 86. TABLE OF CASES. 403 [references are to sections.] M. Mabin v. Webster, 29. McAlister v. McAlister, 136. McAnally v. Alabama Insane Hospital, 64, 83, 90. McBee v. McBee, 138. McCallum v. Smith, 80. McCarthy v. Boston, 167. McCarty v. McCarty, 53, 134. McCauley v. Grimes, 71. McCIure v. Miller, 72. McClurg V. Terry, 35. McCluskey v. Provident Sav. Inst., 68. McCollum V. Smith, 81. McCook County v. Kammoss, 165. McCreery v. Davis, 4, 134. V. McCreery, 142. McCutchin v. McGahey, 99, 120. McDannell v. Landrum, 89. McDonald v. Pittsburg, etc., R. Co., 168. McDowell V. Caldwell, 187. McPadden v. Santa Ana, 0. & T. St. R. Co., 109. MacFarland v. Heim, 83. McGahay v. Williams, 120. McGrath v. Donnelly, 114, 123. McGrew v. Mutual Lite Ins. Co., 63, 142. McGuire v. People, 196. McKeag, Estate of, 152. McKee v. Nelson, 29. McKenna v. McKenna, 51. McKeown v. Johnson, 126. MacKinley v. McGregor, 99, 116. McKinney v. Clarke, 4, 23, 36. McKinnon v. McDonald, 68, 73. McLaughlin's Estate, 15, 33. McLean v. Hardin, 80. McLemore v. Pinkston, 68. McLennan v. McLennan, 20, 44. McLure v. Lancaster, 98. McMahen v. McMahen, 136. McNaught v. Anderson, 68. McNeeley v. South Penn Oil Co., 76. McNeer v. McNeer, 75. 404 TABLE OP CASES. [REFERENCES ABE TO SECTIONS.] McPherson v. Com., 19. McVickar v. McVickar, 136, 137. Maddox v. Brown,- 159. V. Maddox, 134, 136. Magee v. Young, 4, 5. Magowan v. Magowan, 142. Maguire v. Maguire, 4, 39. Mahone v. Mahone, 136, 138. Maillefer v. Saillot, 43. Mainwairing v. Leslie, 99. Malnwarlng v. Sands, 122. Manby v.' Scott, 119. Manchester v. Tlbbetts, 98. Mandel v. Fogg, 64. Manning v. Manning, 101. V. Pippen, 95. Marsellls v. Thalhlmer, 193. Marshall v. Baynes, 143. V. Macon Sash, etc., Co., 169. V. Perkins, 116. V. Reams, IBS. Martin v. Dwelly, 85, 89. V. Robson, 126. V. State, 197. Marvin v. Marvin, 22. Mason v. Dunbar, 65. V. Homer, 80. v. Mason, 20. Matchin v. Matchin, 135. Mathewson v. Mathewson, 140. Matthewson v. Perry, 162. Mattox v. Mattox, 140. Mauss V. Durant, 72. Maxcy Mfg. Co. v. Barnham, 100. May v. May, 101, 140. Mayers v. Kaiser, 98, 100. Mayhew v. Mayhew, 136. Maynard v. Hill, 4, 5, 131. Meacham v. Bunting, 84. Mead v. Hughes, 90. Medrano v. State, 22. Medway v. Needham, 19, 40, 42, 43. TABLE OP CASES. 405 [references are to sections.] Meers v. McDowell, 159. Megglnson, Estate of, 50, 57. Meister v. Moore, 4, 19, 30, 33. Meldrum v. Meldrum, 96, 97. Mellinger v. Bausman, 75. Melvin v. Melvin, 136. Menzer v. Menzer, 136. Mercein v. People, 161. Mercer v. State, 93. Meriam v. Harsen, 85, 95. Merriam v. Hartford, etc., R. Co., 93. Merrill v. Peaselee,' 62. V. St. Louis, 126. Merritt v. Swimley, 161. Mewhirter v. Hatten, 65, 109. Michael v. Dunkle, 108. Michigan Trust Co. v. Chapin, 65. Middleton v. Janverin, 47. V. Middleton, 134. Milbourn v. Ewart, 94. Miles V. Chilton, 38. Milford V. Worcester, 33, 34. . Miller V. Hayes, 29. V. Miller, 22, 59, 61, 62, 65, 150. V. Wallace, 161. V. Williamson, 73. Milliken v. Pratt, 92. Mills, Estate of, 149. Millward v. Littlewood, 29. Mitchell V. Treanor, 99, 116, 117, 119, 124, Moayon v. Moayon, 62. Mohler V. Shamk, 132. Monnier v. Contejean, 38. Montague v. Benedict, 99, 115, 116. Montoya de Antonio v. Miller, 167, 186. Moore v. Christian, 161. V. Copley, 117. V. Graves, 195. V. Hegeman, 44. V. Moore, 168. V. Page, 96. Moors V. Moors, 135. 406 TABLE OF CASES. [REFERENCES ARE TO SECTIOlJiS.] Morgan v. Kennedy, 126. V. State, 13. Morrill v. Palmer, 26, 33, 50, 52. Morris v. Martin, 120, 122. V. Miller, 56. V. Morris, 136. Morrison v. Estate of Sessions, 152. V. Holt, 115. V. Morrison, 140. Morse v. Bstabrook, 76. Mortimer v. Wright, 155. Moss V. Moss, 23. Mott V. Comstock, 115, 123. Motte V. Alger, 95. Mountholly v. Andover, 22. Moyer v. Koontz, 141. Mucklenburg v. Holler, 64, 140. Mulvey v. State, 127. Munger v. Baldridge, 84, 100. Munro v. DeChemant, 126. Munson v. Hastings, 29. Murdy v. Skyles, 64. Murphy v. Moyle, 144. V. Murphy, 162. V. Ottenheimer, 155. Murray v. Murray, 72. Musick V. Dodson, 83, 112. V. Musick, 20. Myers v. Myers, 153. ' ' N. Naden, Ex parte, 13. Nash V. Mitchell, 91. V. Spofford, 89. National Valley Bank v. Hancock, 153. Nay lor v. Minock, 83. Neasham v. McNair, 64. Needles v. Needles, 67. Nelson v. McDonald, 100. TSTeville v. Reed, 161. New V. Southern R. Co., 162. Newman v. Kingshrough, 43, 44. TABLE OP CASES. 407 [BEFERENCES ARE TO SECTIONS.] Newman v. Moore, 89. Nichells v. Nichells, 141. Nichols V. Nichols, 135. j V. Sargent, 184. V. Weaver, 29. Nicholson Drury Bldgs. Estate Co., 67. Nix V. Bradley, 74. Noel V. Kinney, 91. Noflre V. U. S., 50. Noice V. Brown, 29. Nonnemacher v. Nonnemacher, 18. Non She-Po v. Wa-Win-Ta, 152. Noonan v. Kemp, 80. Norcross v. Norcross, 46. V. Rodgers, 68. Norfolk, etc., R. Co. v. Groseclose's Adm'r, 199, V. Prindle, 75. Norman v. Norman, 33, 34, 39, 43. Norris v. Corkill, 126. North V. North, 52. Northrop v. Knowles, 49, 51. Northwestern Guaranty Loan Co. v. Smith, 182. Norton v. Faza, 122. V. Seton, 38. Norval V. Zinsmaster, 161. Nugent V. Powell, 152, 161. Nye's Appeal, 136. O. Oakman v. Belden, 106. O'Connell v. Taney, 97. Offield V. Davis, 33. O'Gara v. Bisenlohr, 52. Ogden V. Ogden, 96. V. McHugh, 38. O'Herron v. Gray, 182. Ohio, etc., R. Co. v. Tindall, 164. Oinson v. Heritage, 120. Oliver v. Com., 196. V. Houdlet, 184. V. Oliver, 60. O'Neill v. Henderson, 80. 408 TABLE OF CASES. [references are to sections.] !hardson v. Cofleld, 18, 23. Orme v. Orme, 62. Ortheim v. Thomas, 149. Osborne v. Cooper, 89, 97. Ott V. Hentall, 119. Overton v. Beavers, 184, 186. Ovitt V. Smith, 20. Owen V. Bracket, 20. V. White, 155. Owens V. Owens, 136. Pace V. Alabama, 19. Packwood, Succession of, 80. Paddock v. Robinson, 29. Palmer v. Oakley, 83, 87. V. Palmer, 136, 140. Park V. Barrow, 20. Parker v. State, 53. Parrett v. Palmer, 80, 98. Parsons v. Parsons, 64, 152. Partridge v. Stocker, 68, 91. Patterson v. Gaines, 57. Paul v. Hummel, 159. Payne v. Payne, 14. Peacock v. Linton, 155, 157. Peaks V. Hutchinson, 97. v. Mayhew, 99, 120. Peale v. Thurmond, 175. Pearce v. Pearce, 64. Pease v. Pease, 140. Peck V. Peck, 6, 10, 31, 32. Peel V. McCarthy, 188. Peipho V. Peipho, 38. Penn v. Whitehead, 68, 91, 167. Pcnnegar v. State, 40-44. Pennsylvania R. Co. v. Goodenough, 109. People v. Calder, 50. V. Chapman, 135. V. Curiale, 93. V. Dowell, 15, 132, 142. V. Faber, 20. TABLE OP CASES. 409 [EEFERENCEo ABE TO SECTIONS.] People V. Peilen, 53. V. Hersey, 29. ■ V. Imes, 49. V. Malsch, 64. V. Mendenhall, 30, 31. , ' V. Slack, 16. I -. V. Schoonmaker, 50, 93, 172. V. Winters, 61. V. Wright, 127. Peppercorn v. Black River Falls, 199. Perkins v. Cheney, 186. V. Hersey, 29. V. Stimmel, 188. Perry v. Lovejoy, 106. V. Perry, 61. Person v. Chase, 193. Peter v. Byrne, 85. Peters v. Lake, 108. Peterson v. Hoftuer, 198. Petit, Succession of, 150. Pettigrew v. Pettigrew, 64. Petty V. Anderson, 91. V. Petty, 72. Phelps V. Simons, 76. Phillips V. Barnett, 103. V. Gregg, 4, 40, 46, 55. V. McConica, 152. V. Madrid, 20. V. Meyers, 62. Phillipson v. Hayter, 99, 116. Pickens, Estate of, 51, 54. Pickens' Bx'rs v. Kniseley, 83, 94. Pierce v. Burnham, 90. V. Pierce, 153. Pierson v. Smith, 67, 110. Pinkard v. Pinkard, 136, 137. Pittinger v. Pittinger, 53, 54, 57. Pittman v. Pittman, 95. Pitts V. Rhode Island Hospital Trust Co., 153. Plaisted v. Hair, 97. Poindexter v. Jeffries, 73. Pollock V. Sullivan, 26, 29. 410 TABLE OF CASES. [references are to sections.] Poison V. Stewart, 62, 92. Ponder v. Graham, 38. Poole V. People, 15, 52, 64. Poor V. Poor, 61, 136. Poorman v. Kilgore, 166. Popejoy, In re, 64. Porter v. Dunn, 68. V. Haley, 83. V. Porter, 143. V. Powell, 155, 167. PorterHeld v. Butler, 83. Postlewaite v. Postlewaite, 107. Potter V. Clapp, 15, 52, 57. Powell V. Manson, 112. V. Powell, 14, 18, 63. Power V. Lester, 94. Powers V. Charmbury's Ex'rs, 51. V. Russell, 117. V. Southgate, 112. Prater v. Prater, 63. Pratt Coal, etc., Co. v. Brawley, 164, 199. Pratt V. Pierce, 50. V. Pratt, 135. Prentiss v. Parsley, 83, 100, 126. Prescott V. Brown, 65. Presley v. Davis, 153. Prettyman v. Williamson, 107, 108. Pretzinger v. Pretzlnger, 153. Price V. Price, 15, 71, 106. Price's Appeal, 184. Priest V. Cone, 64. Prine v. Prine, 18. Procter v. McCall, 38. Prosser v. Warner, 142. Pulling's Estate, In re, 71- Purcell V. Purcell, 64. B. Ramsay v. Joyce, 72. V. Thompson, 172, 174. Ramsey v. Ramsey, 153. Randall v. Kreiger, 4. TABLE OP CASE? 411 [REFERENCES ABE TO SECTIONS.] Randall v. Randall, 65. Randall's Case, 10. Ray V. Adden, 115. V. Tubbs, 198. Raymond v. Loye, 156. Raynes v. Bennett, 115, 116. Rea V. Tucker, 93, 108. Reed v. Moore, 120. V. Morton, 100. V. Reed, 106, 142. Reeve v. Conyngham, 121, 123. Reg. V. Brigbton, 13. V. Jackson, 61, 62. V. Kenny, 128. V. Leggatt, 106. V. Lord Mayor of London, 128. V. Millis, 30. Relnhard v. Reinhard, 136. Reis V. Lawrence, 89. Renfro v. Renfro, 19, 30, 33, 52. Rex V. Clarkson, 106. V. Lister, 61. V. Marcb, 128. V. Mead, 106. V. Middleton, 59. V. Munden, 167. T. Winton, 106. Reynolds v. Reynolds, 23. V. Schaeffer, 93. V. U. S., 15. Rhame v. Rhame, 64. Ricci V. Mueller, 126. Rice V. Boyer, 198. V. Rice, 37. Richard v. Brehm, 31, 49, 51. Richards v. Collins, 161. V. Richards, 22. Richardson v. Boynton, 183. V. De Giverville, 74, 82. V. Louisville, etc., R. Co., 163. * V. Richardson, 140. Ricker, In re, 87. 413 TABLE OP CASES. [REVERENCES ARE TO SECTIONS.] Rico V. Brandenstein, 85, 95. Rigney v. Rigney, 142. Riley v. Riley, 69. V. Vaughan, 98. Rlnehart v. Bills, 107. Ring V. Ring, 136, 138, Roacli V. Quick, 193. Roadcap v. Sipe, 126. Roadhouse v. Roadhouse, 182, Roane v. Hollingshead, 86. Roanoke v. Shull, 199. Robbins v. Robbing, 140. Robertson v. Cole, 25. V. State, 31. Robins v. Potter, 38. Robinson v. Cone, 199. V. Queen, 92. V. Reed's Adm'r, 33. V. Robinson, 136. Robinson's Appeal, 76. Roche y. Washington, 5, 6, 40-42. Roe V. Roe, 143. Rogers V. Phillips, 83, 90. V. Smith, 199. Rohrer v. Muller, 150. Rooney v. Rooney, 38. ^ Roper V. Clay, 29. Ross V. Morrow, 189. V. Ross, 150. V. Singleton, 83. Roszel V. Roszel, 22. Roth V. Roth, 142. Routh V. Routh, 80. Rowe V. Raper, 153. V. Rugg, 161. Rube V. Buck, 92. Ruding V. Smith, 46. Rugh V. Ottenheimer, 75. Rush V. Rush, 141. , Russell V. Cowles, 29. Rust-Owen Luiiiher Co. v. Holt, 83, 100. Ryan v. Sams, 125. TABLE OF CASES. 413 [REFERENCES ARE TO SECTIONS.] Ryder, Matter of, 155, 158. Ryder v. Ryder, 14, 23. S. St. George v. Biddeford, 18. St. John's Parish v. Bronson, 116. St. Sure V. Lindsfelt, 142. Sales V. Arnold, 67. Sanborn v. Goodhue, 71. Sanders v. Coleman, 29. Sandford v. McLean, 83. Sandilands, Ex parte, 106. Sauer v. Schulenberg, 29. Saul V. Creditors, 80. Saum V. Coffelt, 194. Sawyer v. Richards, 120. Sayers v. Wall, 96. Sayles v. Sayles, 140. Scanlon v. Walshe, 149, 150. Scarborough v. Watkins, 85, 95. Scarf V. Oldrich, 182. Sehaefer v. Osterbrink, 159. Scherer v. Scherer, 146. Schilling v. Darmody, 58, 94. Schliltz V. Roenitz, 152. Schmidt v. Shaver, 182. Schmoltz V. Schmoltz, 71. School Directors v. James, 190. Schuchart v. Schuchart, 20, 52, 56. Schultz V. Schultz, 103. Schuster v. Bauman Jewelry Co., 162. Scott V. Hillenberg, 149. V. Raub, 19. V. Sebright, 22. V. Shufeldt, 22, 23. V. Watson, 198. Scrimshire v. Scrimshire, 46. Scroggins v. Scroggins, 38. Seaton v. Benedict, 99. Seaver v. Adams, 108. Second Nat. Bank v. Merrill, 98, Segelbaum y. Ensminger, 114. 414 TABLE OF CASES. [RErEKENCES ARE TO SECTIONS.] Seilheimer v. Sellheimer, 23. Seitz V. Mitchell, 78. Selleck v. City of Janesville, 109, Sellman v. Bowen, 51. Setzer v. Setzer, 137, 140. Sewall V. Sewall, 142. Shackleford v. Hamilton, 29. Shackleton v. Shackleton, 140. Shaddock v. Clifton, 109. Shafto V. Shafto, 14, 38. Shane v. Lyons, 100. Shanks v. Seamonds, 163. Shattuck V. Hammond, 108. Shaw V. Halllhan, 126. V. Thompson, 64, 83, 90. Sheltou V. Springett, 154, 155. Shepard v. Shepard, 96. Shepperson v. Shepperson, 95. Shields v. Casey, 111. Shoro V. Shoro, 22. Short V. Galway, 80. Shreck v. Shreck, 63. Shutt V. Shutt, 136. Sibley v. Gilmer, 99, 120, 123. Sikes V. Tippins, 108. Simmons v. Brown, 126. Simon v. State, 33, 34. Simonds v. Simonds, 135. Simpkins v. Simpkins, 141. Simpson v. Grayson, 164. Sims V. Rickets, 96. V. Sims, 18, 132. Sissung V. Sissung, 23. Skillman v. Sklllman, 68. Skinner v. Tirrell, 116. Skoglund V. Minneapolis St. R. Co., 109. Slater v. Barrow, 80. Slaughter v. Cunningham, 193. V. Favorite, 182, 183. Slayton v. Barry, 198. Slocomb V. Breedlove, 67. Small V. Small, 71. TABLE OF CASB£ . 415 [references ABE TO SECTIONS.] Smith V. Borden, 126. V. Compton, 29. V. Davenport, 159. V. Ingram, 89, 92. V. McAtee, 80. V. Perry, 149, 168. V. Rogers, 169. V. St. Joseph, 109. V. Silence, 90. V. Smith, 14, 16, 23, 25, 49, 51, 52, 55, 67, 71, 103, 106, 109, 114, 120, 140, 142. V. Taylor, 126. V. Wiodworth, 20. Smith's Estate, In re, 20. Snashall v. Metropolitan R. Co., 58, 109. Sneathen v. Sneathen, 53. Sneed v. Bwing, 11, 15, 39, 51. Snell V. Snell, 83. ■ Snyder v. People, 128. Southwick V. Southwick, 137. Speier v. Opfer, 83. Spellings V. Parks, 29. Spencer v. Pollock, 52. V. Tissue, 99. Spreckles v. Spreckles, 75, 76. Staigg V. Atkinson, 81. Standeford v. De Voe, 67. Stanley's Appeal, 188. Stanton v. Wilson, 156. Stapleton v. Poynter, 161. Starbuck v. Starbuck, 142. Starrett v. Wynn, 90. State V. Abbey, 49, 50. V. Bailey, 158. V. Banks, 128. ■* V. Bell, 19, 42. V. Bittick, 3, 17, 31, 33, V. Black, 61. V. Bowe, 33, 34. V. Branch, 182. V. Brown, 144. V. Burt, 93. 416 TABLE OP CASES. [REFERENCES ARE TO SECTIONS.] State V. Clarke, 189. V. Cleaves, 127. V. Ducket, 4, 5, 129. V. Eaton, 15. V. Bdens, 128. V. Elliott, 183. V. Frey, 93. V. Gibson, 19, 39. V. Gooch, 175, 183, 188. V. Goodrich, 49. V. Guild, 197. V. Hodgkins, 33, 56. V. Hughes, 56. V. Jackson, 19, 39, 158. V. Jones, 101, 128, 161. V. Kean, 34, 49, 55. V. Kermedan, 19, 42, 43, 45. V. Kodat, 93. V. Libby, 49. v. Lowell, 16, 167. V. Ma Poo, 127. •v. Michel, 161. V. Miller, 127. V. Murphy, 35, 38. V. Oliver, 61. V. Parsons, 188. V. Reuff, 161. V. Richie, 196. V. Rhodes, 61. V. Robbins, 33, 49, 50. V. Ross, 40, 42. V. Sanders, 182. V. Schweitzer, 49, 56. / V. Setzer, 18. V. Shattuck, 44, 56. V. Slevin, 180, 182. V. Tice, 197. V. Tutty, 4, 19, 42, 43. V. Walker, 10, 31, 33. v. Washington, 161. V. Watson, 141. V. Weatherby, 20. TABLEl bB* CASES. 41^ fiiiirSaiENCE^ AEE TO SECTIONS.] State V. White, 49. V. Wilson, 33. V. Yeargan, 197. V. Zlchfield, 15, 30, 31, 33. State Bank v. Maxson, 92. States V. States, 23. Stearns v. Fralelgh, 87. Stebbins v. Palmer, 29. Steel V. Steel, 23. Steele v. Steele, 23. %rl Stelz V. Shreck, 143. Stevenson v. Gray, 8, 41, 43. Stevenson's Heirs v. McReary, 54. Stewart, In re, 64, 116. Stewart v. Menzies, 31, 36. V. Stewart, 134, 137. V. Vandervort, 15, 48. Story V. Marshall, 97. Strangeways, Ex parte, 101. Streitwolf v. Streitwolf, 142. Stringfellow v. Somerville, 161. Strode v. Strode, 15, 38. Stroup V. Stroup, 71. Strouse v. Leipf, 126. Stull, Estate of, 43, 44. V. Harris, 83. Stumbaugh v. Anderson, 162. Sturbridge v. Franklin, 49. Suan V. CofEe, 91. Sure V. Lundsfelt, 15. Suter V. Suter, 63. Sutton V. Warren, 13, 40, 41. Swain v. Ferine. 72. Sweeney v. Smith, 83. Switzer v. Switzer, 146. Sykes v. City Sav. Bank, 98. T. V. D., 38. Taffinderv. Merrell, 182. Talbot V. Bowen, 194. Tasker y. Tasker, 106. 418 TABLE OF CASES. [KEFEBENCES ABE TO SECTIONS.] Taylor, Matter of, 64. Taylor, Succession of, 20. Taylor v. Jeter, 172, 190. V. State, 49. V. Swett, 52, 55. V. Taylor, 137. V. Wands, 100. Teagarden v. McLaughlin, 159. Tefft V. TefEt, 38. Temples v. Equitable Mortg. Co., 89. Tennessee Mfg. Co. v. James, 167. Teter v. Teter, 15, 33, 52, 54. Texas, etc., R. Co. v. Brick, 164. Thayer v. Thayer, 71. Third Nat. Bank v. Guenther, 100. Thom V. Knapp, 29. Thompson v. Murray, 87. V. Nims, 33, 51, 54. V. Taylor, 83, 92. V. Thompson, 142. Thornburg v. Wiggins, 76. Thorp V. Thorp, 44. Tillman v. Shackleton, 75, 91. Tinker v. Colwell, 108. Tobin V. Shaw, 29. Tod V. Stokes, 121. Todd V. Redford, 109. V. Todd, 22, 23. Tolen V. Tolen, 134, 142. Tompert v. Tompert, 24. Torre v. Summers, 108. Townes v. Durbin, 80. Townsend v. GrifBn, 4. V. Kendall, 175, 178, 179. Towne v. Wiley, 198. Tracy v. Roberts, 182. Trammell v. Vaughan, 5, 29. Trapnell v. Conklyn, 100, 167. Trefethen v. Lynam, 64, 78. Tress v. Tress, 62. Trimble v. State, 89. Trotter v. Mutual Reserve Fund L. Ass'n, 175. TABLE OF CASES. 419 [EEFEKENCES ABE TO SECTIONS.] Truo V. Ranney, 9, 17, 40. Trust Co. V. Sedgwick, 87. Tucker v. People, 49. V. Tucker, 106. Tufts V. Tufts, 134. Turner v. Meyers, 18. V. Tusby, 64. Tuttle V. Hoag, 99, 117. Tyler v. Asplnwall, 141. V. Tyler, 43, 44. , TJ. Union Nat. Bank v. Chapman, 92. Unity V. Belgrade, 18. University of Michigan v. McGuckin, 4, 30, 52. Uransky v. Dry Dock, B. B. & B. E. Co., 109. U. S. V. Bixby, 195. Vail V. Winterstein, 91. Valleau v. Valleau, 15, 135. Vanata v. Johnson, 75. Vancleave v. Clark, 155. Van Dusen v. Van Dusen, 139. Van Bpps V. Van Deusen, 175. Van Fossen v. State, 15, 142. Van Horn v. Van Horn, 150. Van Houten, In re, 161, 174. V. Morse, 29. Van Matre v. Sankey, 152, 190' Van Orden v. Van Orden, 101. Van Valkinburgh v. Watson, 155. Van Voorhis v. Brintnall, 20, 40, 44. Varney v. Varney, 23. V. Young, 156. Veal's Adm'r v. Veal, 96. Vondal v. Vondal, 14, 23. Voorhees v. Voorhees, 15, 31, 32, 52, 141. Vusler V. Cox, 99, 120. W. "W. T. H., 14. 420 TABLE OF CASES. [BEFEKENCES ARE TO eECTlONB.] W. V. R., 38. W. V. W., 136. Wade V. Kalbfleisch, i, 5, 29. Wadkins v. Watson, 89. Wadleigh v. Clines, 85. Wadsworth v. Wadsworth, 132. Wagoner v. State, 197. Waldron v. Waldron, 136. Walker v. City of Philadelphia, 109. V. Simpson, 99, 116, 120. V. State, 93. V. Walker, 71. Walker's Estate, In re, 19. Wallace v. Pereles, 78. Waller v. Armistead, 72, 185. Walling V. Christian & 0. GrOctery Co., 92. Wallingsford v. Allen, 96. Walmsley v. Robinson, 29. Walters v. Wagley, 83. Walton V. Walton, 62. Wanamaker v. Weaver, 99. Ward V. Ward, 72. Waring v. Waring, 61. Warr v. Huntly, 119. Warner v. Com., 49. Warren v. Prescott, 152. V. Union Bank of Rochester, 182. 183. V. Warren, 106. Warwick v. Lawrence, 105. Washburn v. Hale, 67, 68, 95. Wassum v. Feeney, 195. Waterbury v. Andrews, 83. Watertown v. Greaves, 63. Watkins v. Watson, 137. Watson V. Threkeld, 125. Watts V. Dull, 152. V. Steele, 153. Weatherford v. Weatherford, St, Weaver v. Bachert, 29. Weedon v. Timbrell, 108. Weeks v. Russell, 29. v. Weeks, 67. TABLE Qf gASBS- 42|, [inferences are tq sections.! Weir V. Morley, 161. Weisbrod v. Chicago, etc., R. Co., 83, 100. Wells V. Batts, 98. V. Thompson, 19. Wendel v. Wendel, 14. Werlnger's Estate, In re, 64. West Cambridge v. Lexington, 20, 42. Westbrook v. Mobile, etc., R. Co., 199. Westerberg v. Kinzua Creek, etc., R. Co., 161. Western, etc., R. Co. v. Young, 199. Western Union Tel. Co. v. Hoffman, 164, 199. Westervelt v. Gregg, 67, 75. Westlake v. Westlake, 62, 106. Wetmore v. Mell, 29. Whalen v. Layman, 29. V. Olmstead, 175. Wharton v. Lewis, 29. Wheeler v. Hollis. 179. V. U. S., 196. V. Wheeler, 136. Wheeler & W. Mfg. Co. v. Heil, 126. Whippen v. Whippen, 43. Whitaker v. Warren, 152. V. Whitaker, 65. White V. Henry, 167. V. Thomas, 29. T. Wager, 95. V. White, 20, 32, 37, 51, 52. Wicke's Estate, In re, 63. Wightman v. Coates. 29. Wilbur's Estate, In re, 19, 43. Wilder v. Brooks, 96. Wilhite V. Wilhite, 20. Wllkins V. Young, 76. Willard v. Stone, 29. V. Willard, 22. Willey V. Willey, 20, 44. Williams, In re, 151. Williams v. Harris, 97, 98. V. Herrick, 51. V. Hutchinson, 169. V. Kent, 112. 422 TABLE OF CASES. • [BEFEEENCES ABE TO SECTIONS.] Williams v. Kimball, 150. V. Oates, 44. V. State, 49, 55, 56. V. Williams, 8, 15, 23, 30, 49, 52, 53, 106, 137, 142. Willson V. Smyth, 124. Wilson V. Glossop, 119, 120. V. Holt, 20. V. McMillan, 167. V. Wilson, 94, 101, 1'40. Winn V. Riley, 75. V. Sanford, 64. Winter v. Truax, 182. Winters v. Kansas City Cable R. Co., 199. Wisdom V. Wisdom, 141. Wiswell V. Doyle, 199. Withee v. Brooks, 26. Withers v. Richardson, 29. Wodell V. Coggeshall, 167. Wolcott V. Patterson, 83. Wolf V. Bauereis, 90, 109. V. Frank, 106. Wolverton v. State', 49. Womack v. Tankersley, 49. Wood V. Armour, 100. V. Wood, 179. Woodward v. Barnes, 123, 126. V. Blue, 149. Ward V. Com., 200 Word V. Vance, 198. Worthy v. Worthy, 132. Wright V. Arnold, 185. V. Hays, 90. V. Hicks, 149. V. Remington, 92. Wronkow v. Oakley, 100. Wyatt V. Smith, 75. Wymore v. Mahaska County, 199. Wynkoop v. Wynkoop, 64. Y. Yake v. Pugh, 68. Yale V. Curtlss, 29. TABLE OP CASES. 433 [EBFEBENCES AEE TO SECTIONS.] Young V. Foster, 38. Youngs V. Youngs, 136, 138. Zachman v. Zachman, 148, 149. ZlUey V. Dunwiddie, 145, 153. Zimmerman v. Zimmerman, 162. INDEX. [BEFEBENCES ARE TO SECTIONS.] A. ABDUCTION OF SPOUSE. 106. ABSOLUTE DIVORCE, 131, 143. ADMINISTRATION, by surviving husband or wife, 79. ADOPTION OF CHILDREN, 151. ADULT CHILD, right to services of, 162. action for seduction of, 164. ADULTERY, wife's forfeiture of right to support by, 120, 122. &s ground for divorce, 135. ADULTEROUS MARRIAGE, 15, 52, 135. ADVERSE POSSESSION, between h\lSba^d and wife, 84, note. AFFECTIONS, ALIENATION OF, 107. (425) 426 INDEX. [EEFEEENCES ABE TO SECTIONS.] AFFINITY, as Impediment to marriage, 13. AFFIRMANCE, of inchoate marriage by infant, 16. of marriage while insane, 18. of marriage procured by fraud, 24, 35. see "Ratification." AGE, of consent to marriage, 16. of majority, 189. AGENT, married woman as, 87. wife as husband's, 99, 114. husband as wife's, 100. infant as, 194. AGREEMENT, to marry, 3, 4, 29, 32. not constituting marriage, 10. to perform marital duties, 59, 62, 65, 97. for separation, 146. relinquishing custody of child, 161. ALIENATION OF AFFECTIONS, 107. ALIMONY, without divorce, 64. as incident to divorce, 144. ANTENUPTIAL CONTRACTS, marriage settlements, 77. between husband and wife, extinguishment of, by marriage, 94. of wife, 112. ANTENUPTIAL DEBTS, wife's, husband's liability for, 112. INDEX. 421 [-EEFEKEflCES ARE TO SECTIONS.] ANTENUPTIAL TORTS, wife's, husband's liability for, 126. B. BARRENNESS, is not Impotency, 14. BASTARDS, see "Illegitimate Children." BED AND BOARD, divorce from, 131, 133, 143. BIGAMOUS MARRIAGE, 7, 10, 15, 41. BREACH OP PROMISE OF MARRIAGE, 29. BURDEN OF PROOF, of invalidity of marriage, 18, 57. of marriage, 57. in action for necessaries furnished to married woman, 99, 115, 116. BURIAL, of deceased consort, 64. C. CANON LAW, marriage according to, 30, 33. CANONICAL IMPEDIMENTS, to marriage, 8, 11-14, 133. CAPACITY TO MARRY, in full, 11-20. 428 INDEX. [references ABE TO SECTIONS.] CELEBRANT OF MARRIAGE, 34. CEREMONY OF MARRIAGE, at common law, SO, 32. under statutes, 33. without matrimonial intent, 35. omission of word "obey" in, 60. CHANGE OP LAW, as affecting marriage, 48. CHASTISEMENT, of wife, 61. of child, 161. CHASTITY, not essential to matrimonial capacity, 23. false representations or concealments as to, 23, 29. CHATTELS REAL, T^ife's, husband's interest in, 69. CHILD see "Infant;" "Parent and Child." CHOSES IN ACTION, wife's, husband's right to, 67. CIVIL DEATH, of husband, removes wife's disabilities, 90. dissolves marriage, 129. CIVIL DISABILITIES, to marriage, 8, 11, 15-20. INbEX.. 429 [KEEiEREiroES Ars to sections.] COERCION, of wife by husband, 58, 126, 127, COHABITATION, MATRIMONIAL, not necessary to complete marflage, 31. presumption of marriage from, 51, 52. defined, 62. right and duty of, 62. ■wrongs against, 105-108. COLLUSION. in procuring divorce, 140. COMMON-LAW MARRIAGE, 30-32. COMMUNITY PROPERTY, CONCEALMENTS OR MISREPRESENTATIONS, as ground for avoiding marriage, 23. as defense to action for breach of promise, 29. CONDONATION, as defense to divorce suit, 140. CONFIDENTIAL RELATIONS, between husband and *:f6, 96, 97. between parent and child, 166. between guardian and ward, 185. CONFLICT OF LAWS, as to validity of marriage, 39-48. as to property rights of husband anc^ wife, 80. as to wife's disabilities, 92. in divorce matters, 142. as to legitimacy, 150, note. 430. INDEX. [references are to sections.] CONJUGAL RIGHTS, suit for restitution of, 62. CONNIVANCE, as defense to divorce suit, 140. CONSENT, marriage founded on, 9. of parent, to marriage of infart, 17. of guardian, to marriage, etc., of ward, 17, 179. CONSENT TO MARRIAGE, essentials of, 9, 10. competency of parties to give, 11-20. reality of, 21-27. expression of, 28-34. CONSANGUINITY, as impediment to marriage, 13. CONSORTIUM, actions for loss of, 105-lOS. CONSTITUTIONALITY OF STATUTES, prohibiting miscegenation, 19. prohibiting marriage after divorce, 20. curing defective marriages, 37. creating wife's separate estate, 75. dissolving marriage, 129, 131. authorizing divorce, 134. CONSUMMATION OF MARRIAGE, not essential to complete marriage, 22, 31. as affecting question of avoidance, 22, 25. INDEX. 431 [BEFEBENCES ABE TO SECTIONS.] CONTRACT, marriage as a, 4, 8. see "Agreement." CONTRACT OF MARRIAGE, 3, 4, 31. CONTRACT TO MARRY, 3. 4, 29, 32. CONTRIBUTORY NEGLIGENCE, as defense to action for injuries to child, of parent, 164, 199. of child, 164, 199. CONVEYANCES, in fraud of marital rights, 72. by or to married woman, 85. by husband or wife to defraud creditors, 77, 78. by infants, 193. CONVICTION OF CRIME, as ground for divorce, 138. CO-OWNERSHIP OP PROPERTY, by husband and wife, 76. COPULA, 32. •. . ■ COTENANCY, between husband and wife, 76, COUNCIL OF TRENT, decree of, 33. COUSINS, intermarriage of, 13. J32 INDEX. [hiF^ENCES ABE TO SECTIONS.] COTBNANTS, husband and wife as, 76. COVENANTS, in married woman's deed, 85, 89. CRIMES, of married women, 127. of husband and wife against each other, 128i of infants, 197. CRIMINAL CONVERSATION, 107. CROSS SUIT, for divorce, ISS, CURATIVE STATUTES, curing defective marriages, 37. CURTESY, 70, 79. CUSTODY OP CHILDREN, after divorce, 145. right to, 161. contract relinquishing, 161. D. DEAF AND DUMB PERSONS, not incompetent to marry, 18, marriage of, by signs, 30. DEATH, presumed from absence, 15, 53. abates suit for breach of promise, 29. of wife, action for, 109 INDEX. 433 [BEFEKENCES ABB TO SECITIONS ] DEATH— Cont'd. dissolves marriage, 129. of child, action for, 164. of guardian or ward, terminates guardianship, 186. DECEASED WIPE'S SISTER, marriage with, 13, note, 45. DESERTION, as ground for divorce, 137. DISABILITIES, of husband, 81. of wife, in full, 58, 82-92. of infant, in full, 191-198. DISEASE, as justification for breach of promise, 29. see "Venereal Disease." DISSOLUTION OF MARRIAGE, by act of parties, 4, 146. presumption of, 53. by death, 129. by imprisonment, 129. by divorce, see "Divorce." DIVORCE, in full, 130-145. not favored, 130. several kinds of, 131. nature of proceedings, 132, 142. parties to suit, 132. cross suit for, 132. causes for, at common law, 133. statutory grounds for, 134. defenses, 139, 140. Long, D. R.— 28. 434 INDEX. [reiterbnces aee to sections.] DIVORCE— Cont'd. vacation of decree for fraud, 141. foreign, conflict of laws, 142. effect of, 143. DOMESTIC RELATIONS, defined and enumerated, 1. DOMICILE, matrimonial, 63. of wife, 63. in divorce causes, 142. of infant, 179, 190. DOWER, 71, 79. DRUNKENNESS, marriage during, 18. as ground for divorce, 136, 138. DURESS, marriage under, 22. EARNINGS, WIPE'S, husband's right to, 65, 68. wife's right to, under statutes, 68. ECCLESIASTICAL COURTS, jurisdiction of, over marriage, 8. doctrine of, as to marriage, 3, 18, note, divorce in, 8, 133. EDUCATION OP CHILD, duty of parent as to, 158. INDEX. 435 [REFEEENCEa ARE TO SECTIONS.] ELECTION, GUARDIANSHIP BY, 176. EMANCIPATION OF CHILD, 167. ENGAGEMENT TO MARRY, 4, 29, 32. ENLISTMENT OF CHILD, emancipation by, 167. consent of guardian to, 179. ENTICEMENT OF SPOUSE, 106. ENTIRETIES, TENANCY BY, 76. EQUITY TO SETTLEMENT, WIFE'S, 73. ESTOPPEL, to deny marriage, 35, 38. of married women, 89. EVASION, of local law of marriage, 43, 44. EXECUTRIX, married woman as, 87. EXECUTOR, infant as, 191, 195. EXTRATERRITORIAL EFFECT, of prohibitions to marry, 20. of marriage laws, 39. of decrees of divorce, 142. 436 INDEX. [BEFEEENCES AEE TO SECTIONS.] P. FALSE REPRESENTATIONS, inducing marriage, 23. inducing promise of marriage, 29. FATHER, see "Parent and Child." FEDERAL GOVERNMENT, has no jurisdiction over marriage and divorce, 39, 134, note. FEME COVERT, wife is, 58. FEME SOLE, when wife may act as, 90. FINES AND RECOVERIES, wife's conveyance by, 85. FORCE, marriage induced by, 22. FOREIGN DIVORCE, 142. ' FOREIGN GUARDIAN, 178. FOREIGN MARRIAGE, in full, 39-47. proof of, 55. FRAUD, marriage procured by, In full, 23 26. whether void or voidable, 24. INDEX. 437 [REFEEENCES ARE TO SECTIONS.] FRAUD— Cont'd. liability for procuring, 26. as defense to action for breach of promise, 29. upon marital rights, 72. by husband and wife upon creditors, 77, 78, 97. vacation of decree of divorce for, 141. infant's liability for, 198. G. GIFTS, of wife's earnings to wife, 68. between husband and wife, 78, 95, 96, 98. between parent and child, 166. by infant, 193. GRANDPARENT, as child's natural guardian, 172. GUARDIAN, defined, 170. several kinds of, ^71. by nature and for nurture, 172. in socage, 173. testamentary, 174. chancery and probate, 175. de son tort, 175. by election of ward, 176. ad litem, 177, 200. appointment and qualification of, 178. foreign, 178. powers and duties as to ward's person, 179. duty of supporting ward, 180. use of ward's estate for his support, 181. powers and duties as to ward's estate, 182, 183. investments by, 183. personal liability on contracts, 184. transactions of, with ward, 185. termination of ofiice of, 186. 438 INDEX. [BEFERENCES ABE TO SECTIONS.] GUARDIAN— Cont'd. compensation and reimbursement of, 187. accounting by, 188. GUARDIAN AND "WARD, in full, 170-188. transactions between, 185, 188. GUARDIANSHIP, in full, 170-188. defined, 170. the several kinds, 171-177. termination of, 186. H. HABEAS CORPUS, to recover wife, IOC. to recover child, 161. HABITUAL DRUNKENNESS, as ground for divorce, 138. HEAD OP FAMILY, husband is, 58-60. HIGH SEAS, marriage on, governed by law of domicile, 43. HUSBAND, head of family, 58-60. right of, to chastise and restrain wife, 61. right of, to fix matrimonial domicile, 63. duty of, to support wife, 64. burial of wife by, 64. right of, to wife's services, 65, 68. rights of, in wife's personalty, 67. right of, to wife's earnings, 68. right of, to wife's chattels real, 69. INDEX. 439 [REFKBENCES ARE TO SECTIONS.] HUSBAND— Cont'd. rights of, in wife's realty, 70. wife's interest in property of, 71. disabilities of, 81. as wife's agent, 100. HUSBAND'S PROPERTY, wife's interest in, 71, 79. HUSBAND AND WIPE, in full, 2-146. importance of relation, 2. one person in law, 58. mutual duties of, 59. as co-owners of property, 76. rights of survivor, 79. partnership between, 91. mutual disqualification as witnesses, 93. extinguishment of antenuptial contracts between, 94. contracts and conveyances between — at common law, 95. in equity, 96. under statutes, 96. confidential nature of relationship between, 96, 97. relation of debtor and creditor between, 98. suits between, 101. wills in each other's favor, 102. liability to each other in tort, 103. crimes against each other, 128. see "Husband;" "Wife." IDENTITY OF PERSON, FICTION OF, of husband and wife, 58. not fully recognized in equity, 58, 196. largely abolished by statute, 58. IDIOT, marriage of, 18, note. 440 INDEX. [KEFEKBNCES AEE TO SECTIONS.] ILLEGITIMATE CHILD, defined, 148, 168. legitimation of, 150. rights, etc., of, 168. natural guardian of, 168, 172. domicile of, 190. ILLICIT COHABITATION, marriage not presumed from, 52. IMPEDIMENTS TO MARRIAGE, in full, 11-20. canonical and civil, 8, 11. following divorce, 20, 44. IMPOTENCY, as impediment to marriage, 14. as ground for divorce, 133. IMPRISONMENT, may dissolve marriage, 129. as ground for divorce, 138. INCESTUOUS MARRIAGE, void everywhere, 41. see "Atfinity;" "Consanguinity." INDIAN MARRIAGE, validity of, 6, note. INDIANS, intermarriage with whites, 19. INFANCY, see "Infant." INDEX. 441 [EEFBRENCES ABE TO SECTIONS.] INFANT, marriage of, 16. not bound by promise of marriage, 29. estoppel of, to deny marriage, 38. contributory negligence of, 164, 199. emancipation of, 167. denned, 189. domicile of, 190. capacity and disabilities of, 191. contracts of, 192. acquisition, etc., of property by, 193. as agent or fiduciary, 194. capacity to hold office, 195. as witness, 196. criminal responsibility of, 197. liability of, for torts, 198. recovery by, for torts, 199. suits by or against, 200. INFANT HUSBAND, liable for wife's support, 64, 192, note. liable for wife's antenuptial debts, 112, 192, note. INSANITY. as disability to marry, 18. as ground for divorce, 138. as defense to divorce suit, 135, 139. INSANE HUSBAND, liable for wife's support, 64. whether wife of, may act as if sole, 90. INSANE PERSON, marriage of, 18. suit for divorce by or against, 132. INVESTMENTS, by guardian, 183, 442 INDEX. [REFERENCES ARE TO SECTIONS.] J. JEST, marriage in, 35. L. LAW OP NATURE, marriage according to, 6, note. LEGISLATIVE DIVORCE, 131. LEGITIMACY, presumption of, 149. ■LEGITIMATION OF CHILD, 150. LEVITICAL LAW, as to consanguinity, 13. LICENSE TO MARRY, 33. LIMITATIONS, STATUTE OF, as between liusband and wife, 98. bars action on wife's antenuptial debts, 112. LIMITED DIVORCE, 131, 133, 143. LITEM, GUARDIAN AD, 177, 200. LOAN, by wife to husband, 98. by guardian to liimself or to ward, 182. LOCO PARENTIS, PERSON IN, 152, 162. INDEX. 443 [EEFEKENCES AKE' TO SECTIONS.] LUNATIC, marriage of, 18. LUCID INTERVAL, marriage of lunatic during, 18. M. MAINTENANCE, suit for, by wife, 64. see "Support." MAJORITY, AGE OF, 189. MARRIAGE, defined, 3. as a sacrament, 3, 8, 34. as a contract, 3, 4. as a status, 4. a public relation, 5. state as party to, 5. terms of, defined by law, 5, 10. a permanent relation, 6. an exclusive relation, 7. void and voidable, distinguished, 8. founded on consent, 9. see "Consent." according to canon law, 30. at common law, 30. by signs, 30. per verba de present!, 31. by written contract, 31. per verba de futuro cum copula, 32. statutory requirements of, 33. celebration of, 33. favored by law, 33, 130. statutes curing defective, 37. estoppel to deny, 38. conflict of laws as to, 39-47. 444 INDEX. [BBFEEENCES ARE TO SECTIONS.] MARRIAGE— Cont'd. change of law as tOj 48. proof of, 49-57. legal consequences of, in full, 59-128. dissolution of, in full, 129-146. MARRIAGE CEREMONY, 30, 32, 33. MARRIAGE SETTLEMENTS, antenuptial, 77. postnuptial, 78. MARRIED WOMAN, disabilities of, in full, 82-93. contracts of, 83. conveyances by, 85. wills of, 86. estoppel of, 89. torts of, 126. crimes of, 127. MARRIED WOMAN'S ACTS, as to property rights, 58, 59, 65, 68, 75, 110. removing wife's disabilities, 82-86, 88, 89, 91. MENTAL CAPACITY, to marry, 18. MENTAL SUFFERING, causing, as cruelty, 136. MISCEGENATION, conflict of laws as to, 42. MISTAKE, as invalidating marriage, 27, second marriage by, 135. INDEX. 445 [references are to sections.] MISTRESS, liability for support of, 125. MOCK MARRIAGE, 35. MONGOLIANS, intermarriage of, with whites, 19. MORMAN MARRIAGE, 10, 15, note. MOTHER, liability for child's support, 153. right of, to custody of child, 161. right of, to services of child, 162. recovery by, for injury to child, 164. as natural guardian of child, 172, 190. see "Parent and Child." MOTIVES, inducing marriage immaterial, 36. N. NATURE, GUARDIANSHIP BY, 172. NATURE, LAW OF, marriage according to, 6, note. NECESSARIES, wife's contract for, in full, 115-124. what are necessaries, 116. credit not given to husband, 117. wife living apart from husband — in general, 118. separation through fault of husband, 119. separation through fault of wife, 120. separation by mutual consent, 121. effect of wife's adultery, 122. 446 INDEX. [EEFEKENCES ARE TO SECTIONS.] NECESSARIES— Cont'd. notice by husband not to credit wife, 123. effect of divorce, 124. liability of parent for, furnished to child, 155. infant's contracts for, 192. NEGLIGENCE, guardian liable for, 182, 183. see "Contributory Negligence." NEGROES, intermarriage of, with whites, 19. NEXT FRIEND, 200. NONSUPPORT, as ground for divorce, 138. NOTICE, by husband not to credit wife, 114, 123. NULLITY, DECREE OP, 131, 133, 143. NURTURE, GUARDIANSHIP FOR, 172. O. OBEDIENCE, duty of wife, 60. duty of child, 165. P. PARAPHERNALIA, WIPE'S, 73. PARENT AND CHILD, in full, 147-169. the several classes of children, 148. INDEX. 447 [references are to sections.] PARENT AND CHILD— Cont'd. duties of parents, 152-158. rights of parents, 160-164. duties of cliild, 165. ' transactions between, 166. PARTIES, to marriage, 5, competency of, 11-20. to divorce suit, 132. PARTNERSHIP, married woman as member of, 91. between liusband and wife, 91, 97. PERSONAL INJURIES, to married woman, 109. to child, recovery by parent, 164. recovery by child, 199. PERSONAL PROPERTY, husband's right to wife's, 67, 79. wife's interest in husband's, 71, 79. use of ward's, for his support, 181. PIN MONEY, WIPE'S, 73. POLYGAMOUS MARRIAGE, illegal, 7, 10, 15, 41. hypothetical case of legalized, 47. POSTNUPTIAL CONTRACTS, between husband and wife, 95-98. POSTNUPTIAL SETTLEMENTS, 78. 448 INDEX. [EEFEEENCES ABE TO SECTIONS.] PRECONTRACT, as impediment to marriage, 12. PREGNANCY, concealment of, or false representations as to, as fraud, 23. PRESUMPTION, of validity of marriage, 50-54. of marriage from cohabitation and repute, 51, 52, 54. of dissolution of marriage, 53. of wife's authority as husband's agent, 99. of coercion of wife by husband, 126, 127. , PRIOR MARRIAGE, as impediment to later marriage, 15. presumption of dissolution of, 53. PROCHBIN AMI, 200. PROHIBITION TO MARRY, after divorce, 20, 44. PROOF OF MARRIAGE, In full, 49-57. evidence admissible, 49. presumptions in favor of, 50, 54. circumstantial evidence, 51. by cohabitation and repute, 51, 52, 54. foreign marriage, 55. in actions for criminal conversation, 56. burden of, 57. PROPERTY OP CHILD, parent has no interest in, 163. PROPERTY RIGHTS, of husband and wife, in full, 66-80. see "Husband;" "Wife." INDEX. 44y IREFBEBNCES ARE TO SECTIONS.] PROTECTION, of child, duty of parent, 157. PUBLIC POLICY, opposed to setting aside marriage, 22, 23, 25. favors marriage, 33, 130. validity of foreign marriages determined by, 40-44. agreements contrary to, 59, 62, 63, 65, 97, 140, 161. opposed to judicial cognizance of marital discords, 61, 128. opposed to divorcBj 130. PUNISHMENT, ■ • of wife, 61. of child, 161. R. RACE, difference of, as impediment to marriage, 19. RATIFICATION, of void or voidable marriage, 18, 22, note, 124, of wife's contracts, 83, 99, 114. by ward of guardian's acts, 182. of infant's contracts, 192, 193. see "Affirmance." REAL PROPERTY, wife's, husband's interest in, 70, 79. REASON, want of, as disability to marry, 18. RECRIMINATION, as defense to divorce suit, 140. Long, D. R.— 29. 450 INDEX. [REFERENCES ARE TO SECTIONS.] REMOVAL, of wife's disabilities, 58, 82, 90. of guardian, 186. REPUTE, marriage presumed from, 51, 52, 54. RESIGNATION, of guardian, 186. RESTRAINT, - of wife by husband, 61. S. SACRAMENT marriage as a, 3, 8, 18, note. SAVINGS, wife's, belong to husband, 68. SECRECY, does not invalidate marriage, 31. SEDUCTION, ACTION FOR, of wife or husband, 108. of daughter, 164. of ward, 179. SEPARATION, AGREEMENTS FOR, 146. SERVICES, of wife, husband's right to, 65, 68. of child, right to, 162. of ward, guardian not entitled to, 179. INDEX. 451 [beferences aee to sections.] SEPARATE ESTATE, wife's, equitable, 74. statutory, 75. SETTLEMENT, EQUITY TO', 73. SETTLEMENTS, antenuptial, 77. postnuptial, 78. SEXUAL INTERCOURSE, as consideration for promise to marry-, 29. in breacli of promise suits, 29. not necessary to complete marriage, 31. excessive, as cruelty, 136, note. denial of, as cruelty, 136. ienial of, as desertion, 137. SLAVE MARRIAGES, 19. SOCAGE, GUARDIANSHIP IN, 173. SOCIAL CONDITION, difference of, no bar to marriage, 19. SOLE TRADER, wife as, 91. SOUTH CAROLINA, no divorce in, 134, 135. STATE, as party to every marriage, 5. as party to every divorce, 132. STATUS, marriage a, 4. 452 INDEX. [EBrERENCES AEE TO SECTIONS.] STEPCHILD; STEPFATHER, 153, 162, 169, 172. SUITS, by or against married women, 88. between husband and wife, 101. by or against infants, 200. SUPPORT, of wife, duty of husband, 64. where parties live apart, 118-120. through fault of husband, 119. through fault of wife, 120. by mutual consent, 121. effect of divorce proceedings, 12*. of mistress, 125. of child, duty of parent, 153-156. nature of duty as legal or moral, 154. where child is not living with parent, 156. of parent by child, 165. of ward, 180, 181. SURVIVING CONSORT, burial of decedent by, 64. rights of, 79. T. TESTAMENTARY GUARDIAN, 174. right to custody of ward, 161. THREATS, as duress, 22. as cruelty, 136. TORTS, as between husband and wife, 103. I against wife's person, 109. against, wife's property, 110. INDEX. 453 [BEFKBENCES ABE TO SECTIONS.] TORTS— Cont'd. of wife, 126. of husband and wife jointly, 126. of child, liability of parent, 159. against child, recovery by parent, 164. liability of infant for, 198. recovery by infant for, 199. TRUSTEE, married woman as, 87. guardian is, 170, 182. infant as, 194. U. UNBORN CHILD, may take property, 193. V. VACATION, of decree of divorce, 141. VENEREAL DISEASE, as impotency, 14, note, 23. action for communication of, 26. may justify breach of promise, 29. VOID AND VOIDABLE MARRIAGES, distinguished, 8. W. WARD, domicile of, 179, 190. may ratify guardian's unauthorized acts, 182. not bound by guardian's contracts, 184. cannot bind guardian, 184. 454 INDEX. [references are to sections.] WARD— Cont'd. termination of guardianship by dcatli or marriage of, 186. see "Guardian;" "Guardian and Ward." WIFE, identity of, merged into tliat of husband, 58. dominated by husband, 58. must obey husband, 60. chastisement or restraint of, 61. domicile of, 63, 142. refusal of, to follow husband as desertion, 63, 187. husband must support, 64. not bound to support herself or family, 64. burial of deceased husband by, 64. services of, belong to husband, 65, 68. Interest of, in husband's property, 71, 79. as husband's agent, 99, 114. see "Married Woman;" "Husband and Wife." WIPE'S CONTRACTS, antenuptial, 112. postnuptial, 83, 104, 113. with her husband, 95-97. as husband's agent, 99, 114. for necessaries, 115-124. WIFE'S CRIMES; 127, 128. WIPE'S DOMICILE, 63, 142. WIPE'S PROPERTY, husband's interest in, 67-70, 79. WIPE'S SEPARATE ESTATE, equitable, 74. statutory, 75. may be charged with her support, 64. INDEX. 455 [refekences aee to sections.] WIPE'S TORTS, 126. WILLS, of married women, 86. of husband and wife in each other's favor, 102. of infants, 191, 193. WITNESSES, to marriage, not necessary at common law, 30, 31. mutual disqualification of husband and wife as, 93. infants as, 196. I KF 505 l8^ 1 Author Vol. Long, Joseph Ragland Title Copy A Treatise on the law of domesti relat Lons Date Borrower's Name