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 Cornell university Library ■ 
 
 KF 505.B88 1890 ■ 
 
 Elements of thelawofdomestjcr^^^^^ 
 
 Cornell University Law Library. 
 
 THE GIFT OF 
 LILLIAN HUFFCUT 
 
 BINGHAMTON, N. Y. 
 
 November 27, 1915 
 
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/cu31924018807457 
 

 I 
 
 ELEMENTS 
 
 LAW OF DOMESTIC DELATIONS 
 
 EMPLOYER AND EMPLOYED. 
 
 BY 
 
 / 
 
 IRVING BROWNE. 
 
 SECOND EDITION, REVISED. 
 
 BOSTON: 
 THE BOSTON BOOK COMPANY. 
 
 1890. 
 
Copyright, 188S, 
 By Soule and Bugbee. 
 
 Copyright, 1890, 
 By The Bostom Book CoMrANY. 
 
 John Wilson asd Son, Cambridge. 
 
PREFi|lCE TO THE FIRST EDITION. 
 
 THIS work is a sort of primer of the legal prin- 
 ciples relating to the law of Domestic Rela- 
 tions. It is an attempt to present a brief but com- 
 prehensive summary of the body of this law, as it is 
 furnished in the great works of Mr. Bishop and Mr. 
 Schouler, bearing the same title, and in Mr. Wood's 
 excellent treatise on Master and Servant. 
 
 It has long been a wonder to me that a novice can 
 ever learn the laws from the great commentaries, so 
 loaded with authorities, so hampered with distinc- 
 tions, so diffuse in discussion ; and it has seemed to 
 me desirable that there should be elementary books 
 to put into the hands of students, leading up to the 
 commentaries. I have often felt, in my labors as 
 practitioner, editor, reporter, and lecturer, that such 
 books would frequently serve a useful purpose as 
 manuals for those who have passed their novitiate, 
 and who are called upon suddenly to refresh or con- 
 firm their memories, or direct their researches. I 
 have endeavored to give references to the latest 
 decisions, as an especial aid to practitioners. Such 
 works as the present are not designed to supersede, 
 
IV PBEFACB. 
 
 but to preface, and perhaps accompany, the elaborate 
 treatises. 
 
 My obligations, in the present volume, to Mr. 
 Bishop and Mr. Wood, and more especially to Mr. 
 Sehouler, are evident. These writers liave e:^hausted 
 their subjects. The art of the author of such a book 
 as this consists in expressing principles with the 
 greatest conciseness and simplicity, and in knowing 
 what to leave out. How well I have succeeded in 
 this task — not a very easy one — must be left to 
 others to say. If I have in any degree simplified 
 the learning of the law by the student, I shall be 
 satisfied. 
 
 I. B. 
 
 Albany, Sept. 1, 1883. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 HUSBAND AND WIFE. 
 
 Marriage. — Blood, 1-3. Social condition, 3. Mental ca- 
 pacity, 3, 4. Physical capacity, 5. Age, 5, 6. Prior marriage, 
 6, 7. Force or fraud, 7-9. Evidence of the assent to the con- 
 tract, 9-12. Foreign marriage, 12, 13. 
 
 CHAPTER II. 
 
 HUSBAND AND WIFE. 
 
 Duties, rights, liabilities, and disabilities. — The common-law 
 theory of marriage, 14, 15. Mutual duties, 15. Domicile, 15, 
 16. Right to person and society of wife, 16, 17. Right to 
 restrain and chastise the wife, 17, 18. Right to testify, 18. 
 Liability of husband for wife's debts, 18, 19. Wife's contract 
 for necessaries, — what are and what are not necessaries for a 
 married woman, 19-21. In what circumstances the husband 
 may be bound for necessaries — where they live together, 21, 
 22; where they live apart, 22-25. Wife's agency other than 
 for necessaries, 25, 26. Husband's liability for wife's wrongs, 
 26, 27. Husband's remedy for wrongs to wife, 27, 28. 
 
 CHAPTER in. 
 
 HUSBAND AND WIFE. 
 
 The wife's property at common law. — Iler personal property, 
 29-31. Her real estate, — leases for years, or chattels real, 31, 
 32; her real estate proper, 32-35. Death of the wife, 35, 86. 
 Death of the husband, 36. Dower, 37, 38. 
 
VI CONTENTS. 
 
 CHArXER IV. 
 
 HUSBAND AND WIFE. 
 
 The wife's separate estate, in equity, and under the modern 
 statutes. — The equity doctrine, 39-41. The modern statutes, 
 41-43. Wife's dominion over her separate estate, in equity, 
 43-45 ; under the modem statutes, 45-47. Dealings direct 
 between husband and wife, 47-49. Wife's separate business 
 and earnings 49, 51. Estoppel, 51,-52. Other contracts of 
 wife, 53. * 
 
 CHAPTER V. 
 
 HUSBAND AND WIFE. 
 
 Will, settlements, and gifts. — In general, 54, 55. Ante-nup- 
 tial settlements, 55-57. Po.st-nuptial settlements. 57-60. Con- 
 structive fraud, 60. 
 
 CHAPTER VI. 
 
 HUSBAND AND WIFE. 
 
 Separation and divorce. — Separation, 61, 62. Divorce, abso- 
 lute, — for nullity of contract, 62, 63; by dissolution of contract, 
 
 63, 64. Divorce, limited, — for cruel aud inhuman treatment, 
 
 64, 65 ; for such conduct as renders it unsafe and improper to 
 cohabit, 66; for abandonment and refusal or neglect to provide, 
 66. Alimony, 66. Foreign divorces, 66, 67. Effects and in- 
 cidents of divorce, 68, 69. Annulling divorce, 69. 
 
 CHAPTER TII. 
 
 PARENT AND CHILD. 
 
 Children. — Legitimate and illegitimate, 70, 71. Duties of 
 parents, — protection, 71 ; education, 71, 72 ; maintenance, 72, 
 73. Agency of child, 74, 75. Rights of pai-ents, — correction, 
 75; custody, 76-78; services and earnings, 78-80. The child's 
 property, 80, 81. Parent's action for injury to child, 81-84. 
 Liability for child's tort, 84, 85. Duties of children, 85. 
 Eights of children, — emancipation, 85-87; after maiority, 87; 
 voluntary conveyances, 87; constructive fraud, 87, 88; advance- 
 ments, 88. Illegitimate children, 89. 
 
CONTENTS. Vii 
 
 CHAPTER VIII. 
 
 GUARDIAN AND WARD. 
 
 Classification of guardians, 90, 91. Appointment, — by par- 
 ent, 91; by the court, 92. Guardianship, how terminated, 92, 
 93. Rights and duties of guardian, — rights as to person, 94; 
 duties as to person, 95, 96. Rights of foreign guardian as to 
 person, 96. Rights and duties of guardian as to ward's estate 
 generally, 97, 99; as to real estate, 99, 100; as to personal 
 estate, 100, 101. Suits, 101. Joint guardians, 101. Guardians 
 in fact, 101. Rights of foreign guardian as to property, 102. 
 Sale of real estate, 102, 103. Rights and liabilities of the ward, 
 104, 105. 
 
 CHAPTER IX. 
 
 INFANCY. 
 
 General disabilities of infants, — holding office, 106; crimes, 
 106 ; testifying, 107 ; wills, 107 ; contracts, 107-109. Contracts 
 binding the infant, — necessaries, what are, 109; what are not, 
 110, 111; other contracts, 112. Ratification and avoidance of 
 contract, 112-118. Injuries and frauds of infants, — committed 
 by infants, llS-120; suffered by infants, 120, 121. Infants' 
 suits, 122. 
 
 CHAPTER X. 
 
 MASTER AND SERVANT. 
 
 The relation and its rights generally, 123, 124. The crea- 
 tion of the relation, 124, 125. Termination of the relation, — 
 disobedience, 126 ; moral misconduct, 126 ; negligence, 126, 127. 
 Rights, duties, and liabilities of master toward servant, — his 
 rights, 127; his duties, 127-129; his liability, 129, 130; con- 
 tributory negligence, 130-132. AVho are co-servants, 132-135. 
 Rights, duties, and liabilities of servant toward master, 135- 
 137. Liability of master to third persons, generally, 138, 139; 
 for negligent acts, 139, 140 ; for wilful acts, 140-147. Lia- 
 bility of servant to third persons, 147, 148. Liability of third 
 persons to master, 148. 
 
TABLE OF CASES. 
 
 Aaron v. Mendel, 104. 
 Abbey o. Deyo, 47. 
 Abbott V. Abbott, 15, 68. 
 Abbott V. Bayley, 62. 
 Abbott V. Converse, 86. 
 Academy v. AU6n, 125. 
 Adams v. Beall, 117. 
 Adams v. Curtis, 48. 
 Ahrensfeldt v. Ahrensfeldt, 66. 
 AinsUe v. Mead, 48. 
 Albee w.Wyman, 61. 
 Albert v. Albert, 65. 
 Aldrich v. Bennett, 86. 
 Allen's Appeal, 9. 
 Allen V. Forbes, 19. 
 Alsworth V. Cortz, 114. 
 Althorf V. Wolf, 147. 
 Ames V. Jordan, 139. 
 Ames V. Union Ry. Co., 148. 
 Anderson v. Mather, 61. 
 Angel V. Felton, 27. 
 Angell V. McLellan, 87, 111. 
 Anonymous, 4, 76. 
 Armstrong v. Walkup, 101. 
 Arnold v. Norton, 81. 
 Atkins V. Garwood, 20, 22. 
 Atwood V. Holcomb, 79. 
 Avery v. Avery, 65. 
 
 Badger v. Badger, 10. 
 Bahn y. Bahn, 65. 
 Bailey v. Gardner, 51. 
 Baines o. Toye, 74. 
 Baker v. Baker, 7, 9. 
 Baker v. Haldeman, 84. 
 Baker v. Kennett, 112, 115. 
 Baker v. Lorillard, 102. 
 Baker v. Lovett, 121. 
 Baker v. Stewart, 35. 
 Ball V. Ball, 76. 
 
 Bank of Greenboro v. Cham- 
 bers, 57. 
 
 Bank of Silver Creek v. drown- 
 ing, 113. 
 
 Barden v. Felch, 145. 
 
 Barlow v. Barlow, 65. 
 
 Barlow v. Grant, 74. 
 
 Barnaby v. Barnaby, 108. 
 
 Barney v. Parsons, 98. 
 
 Barrow v. Barrow, 30. 
 
 Barth v. Lines, 37. 
 
 Bartholomew v. Finnembre, 115. 
 
 Bartholomew v. Jackson, 125. 
 
 Bartlett, Ex parte, 94. 
 
 Bartley v. Eichtmeyer, 82. 
 
 Bartonshill Coal Co. v. Reid, 128. 
 
 Baugh V. Baugh, 69. 
 
 Baulec «. N. Y. & H. R. Co., 130. 
 
 Baxter v. Roberts, 128, 129. 
 
 Bay V. Gunn, 114. 
 
 Baylor v. Delaware, etc., R. Co., 
 131. 
 
 Beadleston v. Beadleston, 66. 
 
 Beale v. Arabin, 24. 
 
 Bedford v. McKowl, 84. 
 
 Beeston y. Collyer, 126. 
 
 Belton V. Briggs, 114. 
 
 Benham v. Bishop, 114. 
 
 Benjamin v. Benjamin, 25. 
 
 Bennett v. Truebody, 138. 
 
 Bentley v. Terry, 78. 
 
 Berea Stone Co. v. Craft, 135. 
 
 Berkmeyer v. Kellerman, 105. 
 
 Bertles v. Nunan, 35. 
 
 Besondy, In re, 95. 
 
 Bethell, Re, 13. 
 
 Beyer v. Beyer, 65. 
 
 Bibb V. McKinley, 101. 
 
 Bihin v. Bihin, 65. 
 
 Billings V. Baker, 34. 
 
 Blnford v. Johnston, 120. 
 
 Birdzell v. Birdzell, 7, 63. 
 
 Birkbeck v. Ackroyd, 5p. 
 
 Bixby i'. Dunlap, 148. 
 
TABLE OF CASES. 
 
 Blake v. Leigh, 76. 
 Blanchard u. Ilsley, 82, 94. 
 Blodget vt Brinsmaid, 2. 
 Boddington, Re, 68. 
 Bodine v, Killeen, 52. 
 Boisseau v. Boisseau, 100. 
 Bonnett v. Bonnett, 78. 
 Boody V. MoKenney, 114, 115. 
 Booth V. B. & A. R. Co., 128. 
 Borden v. Fitch, 67. 
 Bort, Matter of, 75. 
 Bostick 0. Blades, 55. 
 Bostwick, In re, 95. 
 Bostwick V. Atkins, 98. 
 Bowker v. Bradford, 49. 
 Boyd V. Saffington, 75. 
 Boyd V. Turpin, 51. 
 Boyden v. Boyden, 114. 
 Boyle's Estate, 60. 
 Braceglrdle v. Heald, 125. 
 Bradford v. Abend, 67. 
 Bradley v. Murray, 21. 
 Bradley v. Pratt, 112. 
 Bradshaw v. Heath, 67. 
 Bray v. Wheeler, 86. 
 Brennan v. Fairhaven and West- 
 
 ville R. Co., 139. 
 Brewer v. Maurer, 47. 
 Brick's Estate, 92. 
 Briggs V. Morgan, 5. 
 Broadus v. Rosson, 96. 
 Broderick v. Detroit, etc., Co., 130. 
 Brook V. Brook, 12. 
 Brothers v. Cartter, 133. 
 Brown v. Bowers, 11. 
 Brown v. Clark, 54. 
 Brown v. McCune, 119. 
 Brown v. Midgett, 23. 
 Brown v. Mullins, 96. 
 Brown v. Scott, 87. 
 Bruce v. Burke, 6. 
 Bryan v. Jackson, 74. 
 Bryant v. Rich, 143 
 Buckley v. Wells, 48. 
 Buckworth v. Buckworth, 73. 
 Bullock V. Babcock, 118. 
 Burgess v. Carpenter, 124, 148. 
 Burke, Matter of, 73. 
 Burke v. Valentine, 34. 
 Burleigh v. CofBn, 33. 
 Burlingame v. Burlingame, 79. 
 Burnham v. Seaverns, 105. 
 Burritt v. Burritt, 73. 
 BurweU's Exr. v. Lumsden, 60. 
 
 Bussey v. McCurley, 58. 
 Butterfield v. Ashley, 86. 
 Butler.!;. Butler, 56. 
 Butler V. Rosenblath, 35. 
 Bybee v. Tharp, 96. 
 
 Caldwell v. Eneas, 125. 
 
 Callo V. Brouncker, 127. 
 
 Calvo V. Charlotte, etc., R.Co.,134. 
 
 Campbell v. Campbell, 86, 87. 
 
 Campbell w. Cranipton, 2. 
 
 Campbell v. Stakes, 118. 
 
 Campion v. Cotton, 33, 56. 
 
 Cantine v. Phillips, 24. 
 
 Card V. Alexander, 68. 
 
 Carey, In re, 54. 
 
 Carlton v. Carlton, 68. 
 
 Carroll v. Bird, 128. 
 
 Carter v. Dale, 40. 
 
 Carter v. Louisville, etc., Ey. Co., 
 145. 
 
 Carter v. Smith, 58. 
 
 Carter v. State, 107. 
 
 Carter v. Towne, 120. 
 
 Cashman v. Henry, 47. 
 
 Cate V. Gentry, 99. 
 
 Caughy v. Smith, 148. 
 
 Cent. Ry. Co. v. Peacock, 145. 
 
 Chambers v. Wherry, 116. 
 
 Champlin v. Champlin, 56. ' 
 
 Chandler v. Broughton, 145. 
 
 Chandler v. Glover, 113. 
 
 Chapin v. Shafer, 114. 
 
 Chapman v. Tibbitts, 97. 
 
 Chappie V. Cooper, .S6, 112. 
 
 Chappell V. Nunn, 21. 
 
 Chapsky v. Wood, 78. 
 
 Charleston etc., Ry. Co., 145. 
 
 Charleston v. Miller, 68. 
 
 Charrand v. Charrand, 57. 
 
 Chase v. Elkins, 86. 
 
 Cheney v. Arnold, 10. 
 
 Cheshire v. Barrett, 114. 
 
 Cheshire v. Payne, 56. 
 
 Chew's Estate, 93. 
 
 Chicago V. Starr, 121. 
 
 Chicago & Alton R. Co. v. Mur- 
 phy, 133. 
 
 Chicago, etc., Ry. Co. v. Dickson, 
 143. 
 
 Chicago, etc., Ry. Co. v. Flex- 
 man, 144. 
 
 Chicago, etc.. Ry. Co. v. McMa- 
 hon, 146. 
 
TABLE OF CASES. 
 
 XI 
 
 Chicago, etc., R. Co. v. Moranda, 
 
 134. 
 Chicago, etc., Ry. Co. v. Ross, 134. 
 Chicago, etc., Ry. Co. v. Swaiison, 
 
 134. 
 Claridge ». Evelyn, 106. 
 Clark V. Bayer, 78. 
 Clark V. Fitch, 87. 
 Clarke v. Clarke, 8. 
 Clarke b. Holmes, 132. 
 Clayton v. Wardell, 111. 
 Clement v. Mattison, 4, 
 Clerk V. Lannice, 44. 
 Clinton n. Rowland, 74. 
 Clinton v. York, 8B. 
 Coffin V. Dunliam, 20. 
 Colburn v. Woodwonh, 1.S6. 
 
 Cole V. Pennoyer, 107, 115. 
 
 Coleman v. Burr, 54. 
 
 Collins B. Collins, 61. 
 
 Collins V. Dawley, 69. 
 
 Columbine v. Penhall, 56. 
 
 Columbus, etc., R. Co. v. Troescli, 
 128, 129. 
 
 Coram's of Excise v. Keller, 50. 
 
 Com. V. Baird, 127. 
 
 Com. v. McAfee, 17. 
 
 Com. V. Munson, 10. 
 
 Compton V. Bearcroft, 12. 
 
 Comstock V. Adams, 69. 
 
 Cone V. Delaware, etc., R. Co., 
 130. 
 
 Conklin v. Conklin, 65. 
 
 Conklin v. Ogborn, 113. 
 
 Conlin v. Cantrell, 46. 
 
 Conrad v. Lane, 119. 
 
 Consolis V. Gearliart, 126. 
 
 Conway v. Reed, 118. 
 
 Coombs V. New Bedford Cordage 
 Co., 129, 131. 
 
 Cooper's Case, 91. 
 
 Cooper V. State, 127. 
 
 Copeland v. Boaz, 59. 
 
 Coppedge v. Tredgill, 30. 
 
 Corcoran v. Holbrook, 135. 
 
 Corn Ex. Bank v. Babcock, 46. 
 
 Cornelia v. Ellis, 20. 
 
 Corpe V. Overton, 111. 
 
 Cosgrove v. Ogden, 146. 
 
 Cotheal v. Cotheal, 55. 
 
 Cottrill V. Chicago, etc., R. Co. 
 132. 
 
 Counts V. Bates, 108. 
 
 County Comr's v. Hamilton, 81. 
 
 Cowden ,v. Wriglit, 84. 
 
 Cowee V. Cornell, 81, 88. 
 
 Cowles I'. Richmond & Danville 
 
 R. Co., 13.J. 
 Cox V. Kitchin, 24. 
 Crain v. Cavana, 87. 
 Cranz v. Kroger, 81. 
 Creed w. Penn R. Co., 140. 
 Cresinger v. Welch, 114, 115, 117. 
 Crispin v. Babbitt, 135. 
 Crittenden v. Schermerhorn, 24. 
 Croaker v. Chicago, etc., Ry. Co., 
 ■ 143. 
 
 Craft V. Alison, 141. 
 C'rooks V. Turpin, 101. 
 Cropsey v. Ogden, 6. 
 Cross II. Cuthery, 27. 
 Crumb, Ex parte, 93. 
 Cuff V. Newark, etc., R. Co., 138. 
 Cuming v. Brooklyn City R. Co., 
 
 82, 
 Cunjinings v. Powell, 108. 
 Cussons V. Skinner, 127. 
 Curtin v. Patton, 107, 116. 
 Curtis V. Curtis, 88. 
 Curtis v. Delaware, etc., R. Co., 
 
 31. 
 
 Dain v. Wyckoff, 83. 
 Daley v. Norwich & W. R. Co., 121, 
 Dalton V. Gib, 72. 
 Daniel v. Swearengen, 148. 
 Daniels v. State, 17, 18. 
 Darlington's Appeal, 60. 
 Darmody's Estate, 36. 
 Darrigan v. N. Y., etc., R. Co., 134; 
 Davidson v. Abbott, 84. 
 Davies v. Davies, 6.5. 
 Davis V. Detroit & M. R. Co., 131. 
 Davis V. Dinwoody, 18. 
 Davis V. State, 127. 
 Dawson, Sx parte, 94, 102. 
 Dayton v. Walsh, 51. 
 Deane v. Aveling, 5. , 
 
 Debenham v. Mellon, 22. 
 Dedham v. Natick, 73. 
 Delafleld v. Brady, 68. 
 ' Delagarde v. Lempiere, 30. 
 De Mazar v. Pybus, 91. 
 Dengate v. Gardner, 28. 
 Dennis v. Clark, 81. 
 Derocher v. Continental Mills, 118. 
 Devanbaugh v' Devanbaugh, 6. 
 
xu 
 
 TABLE OF CASES. 
 
 Dickinson v. Blisset, 4. 
 
 Dickinson v. Wincliester, 81. 
 
 Dickson v. Frisbee, 125. 
 
 Dieringer v. Meyer, 126. 
 
 DiU». Bowen, 117. 
 
 Dixon V. Harwell, 24. 
 
 Dobbin v. Richmond, etc., R. Co., 
 
 134. 
 Dodge V. Cole, 102. 
 Dohorty v. Madgett, 43. 
 Dolby V. Kinnear, 126. 
 Dowling V. Allen, 128. 
 Drake v. Ramsev, 115. 
 Drew V. Sixth Ave. R. Co., 82. 
 Drummond v. Ashton, 77. 
 Dublin & W. Ry. Co. v. Black, 
 
 115. 
 Dunlap «.- Hales, 113. 
 Dye 0. Kerr, 80. 
 Dyer v. Brannock, 9. 
 
 Eason v. Ry. Co., 140. 
 
 Eastland v. Burchell, 24. 
 
 Eaton V. European & N. Ry. Co., 
 
 138. 
 Edgar v. Castello, 82. 
 Kdson V. Edson, 69. 
 Edwards w. Davis, 85. 
 Elliott V. Gower, 45. 
 Ellis V. Ellis, 111. 
 Elwell V. Martin, 119. 
 Emerson v. Spicer, 97. 
 Emery v. Emery, 23. 
 Emmett v. Norton, 21. 
 Emmons v. Murray, 114. 
 England v. Dowes, 56. 
 English V. English, 77. 
 Ensign matter, 36, 69. 
 Erie v. Caulkins, 124. 
 Erie City Ry. Co. v. Schuster, 121. 
 Espey V. Lake, 101. 
 Etherington v. Parrott, 21. 
 Eureka Co. v. Bass, 132. 
 'Eustaphive v. Ketclmm, 47. 
 ^Evans v. Davidson, 142. 
 SEverett v. Sherfey, 82. 
 'Ewan V. Lippincott, 138. 
 
 Fairbanks v. Mothersell, 48. 
 
 Farnstill v. Murray, 12. 
 
 Farwell v. Boston & W. R. Co., 
 
 131. 
 Fawcet v. Beavres, 148. 
 
 Fawcett v. Cash, 125. 
 Felker v. Emerson, 25. 
 i'ellows V. Allen, 54. 
 Feltham r. England, 131. 
 Fenton v. Clark, 137.- 
 Ferguson ;;. Lowry, 104. 
 Ferguson w. Tweedy, 36. 
 Fernsler v. Moyer, 94. 
 Fetrow v. Wiseman, 108. 
 Fettiplace v. Gorges, 54. 
 Fewings v. Tisdal, 137. 
 Fiske V. Bailey, 43. 
 Fitzgerald v. Quann, 43. 
 Flannery v. Rohnmayer, 47. 
 Flower v. Penn. R. Co., 139. 
 Flike V. Boston & A. R. Co., 134. 
 Flynn v. Messenger, 50. 
 Fonda v. Van Home, 108. 
 Fones v. Phillips, 12b. 
 Ford V. Fitchburg R. Co., 135. 
 Ford V. Phillips, 113. 
 Foreman v. Murray, 96. 
 Forsyth w. Hastings, 114. 
 Foster v. Conger, 50. 
 Fowler v. Dinely, 24. 
 Fowler v. Frisbie, 27. 
 Fox V. D.avis, 61. 
 Frasher v. State, 3. 
 Frazer v. Freeman, 145. 
 Frecking v. Rolland, 49. 
 Freeman v. Boland, 119. 
 Freeman v. Robinson, 74. 
 Freestone v. Butcher, 21. 
 French v. Sheplor, 99. 
 Friend v. Friend, 65. 
 Furlong v. Bartlett, 117. 
 Furman v. Van Size, 80, 84. 
 Furron v. Attney, 48. 
 
 Gaffney v. Hayden, 118. 
 Gale V. Wells, 99, 105. 
 Galveston, etc., R. Co. u. Dono- 
 
 hoe, 145. 
 Galveston, etc., Ry. Co. v. Moore, 
 
 121. 
 Gardner v. Heyer, 87. 
 Garretzen v. Duenckel, 146. 
 Garvey v. Dung, 142. 
 George v. Van Horn, 83. 
 Gerdes v. Weiser, 80. 
 Gettys V. Gettys, 67. 
 Gibson V. Pacific E. Co., 128, 129. 
 Gillespie v. Bailey, 115. 
 
TABLE OF CASES. 
 
 XUl 
 
 Gilley v. Gilley, 73. 
 
 Gillies V. Lent, 60. 
 
 Gilliam y. Southern, etc., R. Co., 
 
 145. 
 Gilman o. Andrus, 20. 
 Gilman v. Eastern li. Co., 130. 
 Gilmore v. Burch, 00. 
 Glaister v. Hevver, 80. 
 Goddard v. Grand Trunk Ry. Co., 
 
 143. 
 Golding's Petition, 106. 
 Goldsworthy, In re, 76. 
 Gonsolis V. Gearheart, 124. 
 Goodale v. Lawrence, 24. 
 Goode V. Harrison, 115. 
 Goodman v. Winter, 102. 
 Goodrich v. Tracey, 26. 
 Goodsell V. Myers, 113. 
 Goodwin v. Kelley, 25, 48. 
 Goulding v. Davidson, 38. 
 Gower v. Andrew, 136. 
 GrafE v. Kinnej', 49. 
 Graham v. Dickinson, 33. 
 Graham v. Londonderry, 36. 
 Graves v. Graves, 66. 
 Graves v. Shier, 48. 
 Gray v. Durland, 84. 
 Green v. Burke, 119. 
 Green v. Green, 56, 115. 
 Green v. H. R. R. Co., 28, 82. 
 Green v. Roberts, 80. 
 Green v. State, 3. 
 Green v. Wilding, 107. 
 Grcenhow v. James's Exrs., 71. 
 Greenleaf v. Cent. R. Co., 131. 
 Griffiths V. Teetgen, 83. 
 Grindall v. Godmond, 21. 
 Griner v. Butler, 34. 
 Gring w. Lerch, 5. 
 Grinnell v. Wells, 81. 
 Gfwlnn V. Gwinn, 49. 
 
 Haack v. Fearing, 142. 
 
 Haas V, Shaw, 49. 
 
 Hagerty w. Powers, 85. 
 
 Hair v. Hair, 15. 
 
 Hanson v. European & N. A. Ry. 
 
 Co., 141. 
 Hale V. Gerrish, 113. 
 Hale V. Hale, 64. 
 Hall y. Butterfield, 117. 
 Hall V. Hall, 48, 79. 
 Hall V. Hollander, 81. 
 
 Hall V. Simmons, 114. 
 Halley v. Bannister, 78. 
 Hanson v. European Ry. Co., 144. 
 Hamilton v. Booth, 51. 
 Hainilton v. Hooper, 48. 
 Hamilton v. Smith, 66. 
 Hammond v. Corhett, 80. 
 Hare v. Gibson, 12, 68. 
 Hare v. Hare, 15. 
 Hargrave v. Hargrave, 70. 
 Harraer v. Cornelius, 127. 
 Uarner v. Dipple, 107. 
 Harring v. Coles, 73. 
 Harris v. Morris, 23. 
 Harris v. Ross, 118. 
 Harrison v. Collins, 124. 
 Harrod v. Harrod, 4. 
 Hartfeld v. Roper, 81, 121. 
 Hartford v. Morris, 8. 
 Harvey u. Farnie, 12, 68. 
 Uaskins v. Royster, 124. 
 Hathaway v. Bennett, 125. 
 Hawk V. Harmon, 26. 
 Hawkins v. Railroad, 31. 
 Hayes v. People, 11. 
 Hayward v. Barker, 24, 62. 
 Heard v. Stamford, 18, 19, 35. 
 Hebblethwaite v. Hepworth, 10. 
 Hedges v. Tagg, 84. 
 Heim v. MeCaughan, 27. 
 Heinemann's Appeal, 77. 
 Helyear v. Hawke, 138. 
 Hendee w. Cleveland, 98; 
 Henry v. Root, 113, 114. 
 Herbeck, Matter of, 90. 
 Hershberger o. Lynch, 139. 
 Hervey v. Mosely, 82. 
 Hexamer v. Webb, 124. 
 Hides V. Hides, 8. 
 Higgins V. Watervliet Turnp. Go., 
 
 130. 
 Highley «. Barrow, 114. 
 Hill V. Anderson, 107. 
 Hillyer v. Bennett, 117. 
 Hinckley v. Smith, 47. 
 Hinds V. Overacker, 147. 
 Hinely v. Margaritz, 107, 116 
 Hite V. Hite, 97. 
 
 Hoar V. Maine Cent. R. Co., 140. 
 Hoard v. Peck, 28. 
 Hobbs II. Harlan, 126. 
 Hoffman v. Hoffman, 67. 
 Hoffman v. N. Y. C. & H. R. R. 
 
 Co., 144. 
 
XIV 
 
 TABLE OF CASES. 
 
 Hogden v. Hogden, 40. 
 
 Hoit V. Underliill, 114, 115. 
 
 HoUingswurtli v. Swedeiiborg, 80. 
 
 Holmes v. Blojig, 115. 
 
 Holmes «. Setijy, 101. 
 
 Holt ». Baldwin, 74. 
 
 Holt V. Ward, 108. 
 
 Holyoke i'. Haskins, 94. 
 
 Honnett v. Honnett, 8. 
 
 Hood V. State, 65, 67. 
 
 Hopkins, Ex parte, 76. 
 
 Hopper V. Hopper, 65. 
 
 Horder v. Herder, 58. 
 
 Hosliall V. Hosliall, 65. 
 
 Houliston V. Smyth, 16, 23. 
 
 Houck V. Houck, 80. 
 
 Hough «. Ry. Co., 129, 132. 
 
 House V. House, 87. 
 
 Houston & Texas Cent. R. Co. v. 
 
 Moore, 140. 
 Hoverson v. Noker, 85. 
 Howard v. Whetstone, 23. 
 Hoyt V. Tilton, 91. 
 Hubbard v. Bugbee, 38. 
 Huff V. Watkins, 124. 
 Hulett V. Inlow, 35. 
 Hulme 1'. Tenant, 44. 
 Hunt 0. De Blaquiere, 20. 
 Hunt V. Hunt, 67. 
 Hunt V. Johnson, 48. 
 Hunton v. Hazleton, 79. 
 Husband v. Epling, 53. 
 Husband v. Husband, 73. 
 Husted V. Mathers, 47. 
 Hutcheson v. Peck, 16. 
 Hutchinson v. Hutchinson, 95. 
 Huth V. Carondelet Ry. & D. Co., 
 
 115. 
 Hylton V. Hylton, 104. 
 Hyman v. Cain, 111. 
 Hynes v. McDermott, 10, 11. 
 
 Ihl 1'. Forty-second St. R. Co., 
 
 120. 
 Indianapolis v. Kingsbury, 47. 
 Irwin V. Dearman, 84. 
 Isaacs V. Third Ave. R. Co., 144. 
 
 Jackson, Matter of, 99. 
 Jackson v. Burchin, 115. 
 Jackson !>. Post, 58. 
 Jackson v. Rutledge, 47. 
 
 Jackson r. Vanderheyden, 34. 
 Jackson v. Winne, 8, 11. 
 Jacques u. Metli. Epis. Church, 41. 
 James v. Allen Co., 137. 
 Jaques o. Pub. Adm., 11. 
 Jaynes v. Jayes, 16. 
 Jenkins v. Pye, 88. 
 Jennings v. Lyons, 127. 
 Jenny v. Alden, 87. 
 Jewell V. Jewell, 10. 
 Jewsbury v. Newbold, 21. 
 J. G. V. H. G., 62. 
 Johnson v. Gallagher, 44. 
 Johnson v. Jackson, .36. 
 Johnson v. State, 72. 
 Johnston v. Sumner, 24. 
 Jones i: Brewer, 98. 
 Jones V. Darnell, 78. 
 Jones V. Granite Mills, 129. 
 Jones V. Jones, 11. 
 Jones V. Phoenix Bank, 114. 
 Jones V. Reid, 51. 
 Jones V. Roberts, 56. 
 Jones V. Tevis, 82. 
 Joslyn u. Grand Rapids Ice Co., 
 139. 
 
 Kane, Matter of, 73. 
 
 Kauffelt !.•. Moderwell, 79. 
 
 Kaufman v. Schoepel, 49. 
 
 Kay V. Penn. R. Co., 121. 
 
 Keane v. Boycott, 107. 
 
 Keffe V. Milwaukee & St. P. R. 
 
 Co., 120. 
 Keller v. Phillips, 22. 
 Kelly V. Davis, 72, 74. 
 Kelly V. Johnson, 125. 
 Kelly u. Kelly, 65. 
 Kelly V. Scott, 2. 
 Kennedy v. Shea, 83. 
 Kerr v. Kerr, 67. 
 Kimball v. Cushman, 138. 
 Kimball v. Keyes, 72. 
 King K. Barton, 137. 
 King o: N. Y. Cent. K. Co., 138, 
 
 146. 
 Kingman v. Frank, 48. 
 Kinney's Case, 3. 
 Kinney i>. Showdy, 108. 
 Kirby v. Turner, 101. 
 Kirk V. Atlanta, etc., R. Co , 134. 
 Kline v. Beebe, 115, 117. 
 Knox V. Bushell, 20. 
 
TABLE OP CASES. 
 
 XV 
 
 Kowing V. Manly, 26. 
 Kuye V. Moore, 89. 
 Krouskop V. Shoutz, 50. 
 
 Ladd V. New Bedford R. Co., 131. 
 Lake Shore, etc., By. Co. v. Span- 
 
 gler, 135. 
 Lamar v. Micon, 98. 
 Lane v. Cotton, 147. 
 Lane v. Ironmonger, 20. 
 Langfort v. Tyler, 21. 
 Laning v. N. Y. C. R. Co., 128, 
 
 129, 133. 
 Lant's Appeal, 57. 
 Larson v. Berquist, 128. 
 Lauer v. Bandow, 49. 
 Laugher v. Pointfer, 139. 
 Lawlor v. Androscoggin B. Co., 
 
 133. 
 Lawrence v. Lawrence, 65. 
 Lawson o. Lovejoy, 114. 
 Lazear v. Porter, 37. 
 Leach v. Hannibal, etc., E. Co., 
 
 186. 
 Leavitt v. Jones, 47. 
 Lebanon v. Griffin, 85. 
 Lees V. Whitcomb, 137. 
 Legeyt v. O'Brien, 4. 
 Leggett V. Hunter, 103. 
 Lc Grand v. Eufala Bank, 52. 
 Lemmon v. Beeman, 117. 
 Lempriere ». Lange, 119. 
 Leonard v. Putnam, 102. 
 Leopold V. Salkey, 137. 
 Lewis V. Hammond, 136. 
 Lewis V. St. Louis E. Co., 133. 
 Llbby V. Berry, 68. 
 Libhart v. Wood, 126. 
 Lichty V. Hager, 33. 
 Lidlow V. Wilmot, 23. 
 Lilley v. Elwin, 126, 136. 
 Limburger v. Bauch, 105. 
 Limpus V. Gen. Omnibus Co., 141, 
 
 146. 
 Lincoln v. Alexander, 103. 
 Lipe V. Eisenlerd, 87. 
 Litowich V. Litowich, 67. 
 Little V. Duncan, 114. 
 Little Miami R. Co. v. Wetinore, 
 
 144. 
 Little Rock, etc., B. Co. v. Eu- 
 bank, 13-5. 
 Loesuhigk v. Hatfield, 59. 
 
 Long V. Long, 9. 
 
 Long V. Norcom, 96. 
 
 Loomis !;. Cline, 121. 
 
 Louisville, etc., E. Co. v. Conroy, 
 
 138. 
 Lowe V. Griffith, 111. 
 Lumb V. Milnes, 40. 
 Lumley v. Gye, 82. 
 Lushington v. Sewell, 40. 
 Lygo V, Newbold, 121. 
 Lynch v. Met. El.Ry. Co., 143. 
 Lynch v. Nurdin, 121. 
 Lyon V. Ry. Co., 49. 
 
 McCampbell v. McCampbell, 48. 
 
 McCarthy v. Second Parish of 
 Portland, 138. 
 
 McClellan v. Filson, 36. 
 
 McCloskey v. Cyphert, 86. 
 
 MoClure v. Evans, 88. 
 
 McClurg V. Terry, 11. 
 
 McCoon V. Smith, 118. 
 
 McCutchan v. McGahay, 22, 23. 
 
 McDuffie V. Mclntyre, 99. 
 
 McElroy's Case, 4. 
 
 McGary v. Loomis, 121. 
 
 McGowan v. Hitt, 66. 
 
 Mack V. Mack, 59. 
 
 McKin V. MoKin, 77. 
 
 McKinley u. Chicago, etc., Ry. 
 Co., 144. 
 
 McKinney v. Clarke, 9. 
 
 McLane v. Curran, 104. 
 
 McLure ■». Lancaster, 49. 
 
 MoManus v. Crickett, 141. 
 
 McMorris v. Webb, 120. 
 
 McMurray v, McMurrav, 115. 
 
 McVey v. Cantrell, 62. ' 
 
 Madden's Admr. v. Chesapeake, 
 etc., Ry. Co., 134. 
 
 Magruder v, Darnall, 101. 
 
 Majors v. Everton, 58. 
 
 Malone v. Hathaway, 133. 
 
 Maloney v. Kennedy, 39. 
 
 Manby v. Scott, 21, 23. 
 
 Mangam v. Brooklyn R. Co., 120. 
 
 Man gam v. Peck, 43. 
 
 Mangan v. Atterton, 120. 
 
 Manhattan B. & M. Co. v. Thomp- 
 son, 46. 
 
 Manley v. Field, 83. 
 
 Manning r. Manning, 17, 48. 
 
 Mapstrick v. Kamge, 136. 
 
XVI 
 
 TABLE OF CASES. 
 
 Marburg v. Cole, 35. 
 
 Marion v. Chicago Ky. Co., 144. 
 
 Marlow v. Pitfield, 111. 
 
 Martin v. Byrom, 113. 
 
 Martin u. Gale, 112. 
 
 Mason v. Dunbar, 51. 
 
 Mason v. Mason, 14, 65, 66. 
 
 Mattiiewson's Case, 45. 
 
 Matthewson v. Perry, 80. 
 
 Maxon v. Scott, 46. 
 
 May V. May, 48. 
 
 Medbury o. Watrous, 118. 
 
 Medway v. Needham, 12. 
 
 Melville v. De Wolf, lo7. 
 
 Melvin v. Melvin, 18, 66. 
 
 Mercer v. Mercer's Admr., 88. 
 
 Merriam v. Cuumngham, 111, 
 119. 
 
 Merrill v. City of St. Louis, 50. 
 
 Merrill v. Merrill, 5. 
 
 Merritt v. Swimley, 78. 
 
 Meyer v. Hawortli, 19, 38. 
 
 Meyer v. Meyer, 8. 
 
 Miles V. Williams, 19. 
 
 Miller's Appeal, 88. 
 
 Miller v. Anderson, 89. 
 
 Miller v. Smith, 117. 
 
 Mills V. Graham, 119. 
 
 Minier v. Minier, 48. 
 
 Mitchell V, Robinson, 135. 
 
 Mobile & Mont. Ry. Co. v. Clan- 
 ton, 136. 
 
 Mohawk Bk. v. Atwater, 59. 
 
 MoUoney v. Horan, 38. 
 
 Montagu v. Benedict, 20. 
 
 Montgomery v. Montgomery, 9. 
 
 Montgomery Bk. v. Albany Bk., 
 147. 
 
 Moon V. Towers, 85. 
 
 Moore v. Abernathy, 115. 
 
 Moore v. Christian, 78. 
 
 Moore w. Moore, 30, 48. 
 
 Morgan v. McGhee, 12. 
 
 Morgan v. Perhamus, 51. 
 
 Morgiin V. Vale of Neath Ry. Co., 
 133. 
 
 Morrell v. Dickey, 97, 102. 
 
 Morris v. Martin, 23. 
 
 Morris's Admr. v. Richmond, etc., 
 Co., 134. 
 
 Morse v. Wheeler, 115. 
 
 Moss V. Pacific R. Co., 128, 129. 
 
 Mottu. Comstock, 24. 
 
 Motteux V. St. Aubin, 108. 
 
 Mud way v. Croft, 4. 
 
 Mullan V. Phila., etc., Steamship 
 
 Co., 135. 
 Murick v. Dodson, 19, 38. 
 Murray v. Barker, 44. 
 Murphy, Matter of, 78. 
 Mustard v. Wohlford, 107, 116. 
 
 Nash V. Mitchell, 48. 
 
 Nashville, etc., R. Co. v. Starnes, 
 143. 
 
 Nat. Ex. Bank v. Watson, 55. 
 
 Neal V. Gillett, 118. 
 
 Neely v. Lancaster, 34. 
 
 NefE V. Landis, 119. 
 
 Nelson v. Johangen, 95. 
 
 Newbyu. Cox, 6P. 
 
 Newcomb's Exrs. v. Newcomb, 
 67. 
 
 Newcomer v. Hazard, 44. 
 
 New Orleans, etc., R. Co. u. Har- 
 rison, 139. 
 
 Nichol V. Martyn, 136. 
 
 Nicoll V. Greaves, 124. 
 
 Noblesville, etc., Co. v. Gause, 
 142. 
 
 Noel w. Kinney, 52. 
 
 Norris v. Corkhill, 43. 
 
 Norris v. Vance, 116. 
 
 Norris v. Wait, 114. 
 
 North Penn. R. Co. v. Mahoney, 
 121. 
 
 Northrop v. Knowles, 12. 
 
 Norton v. Turrill, 40. 
 
 Nowlen V. Ablett, 124. 
 
 Noyes v. Southworth, 55. 
 
 Nugent V. Vetzera, 96. 
 
 Oakes v. Oakes, 87. 
 Oakey, Ex parte, 88. 
 O'Gara v. Eisenlohr, 11. 
 Ogborn v. Francis, 82. 
 Ogden V. Prentice, 22. 
 Oinson v. Heritage, 12, 23. 
 Oliver v. Houdlet, 98. 
 Oliver v. Woodroffe, 108. 
 Oppley V. Clay, 19. 
 Osborne v. Morgan, 147. 
 Osgood V. Bliss, 54. 
 Osgood ?J. Breede's Heirs, 88. 
 Otis V. Spencer, 55. 
 Overhalt v. Ellswell, 27. 
 
TABLE OF CASES. 
 
 XVU 
 
 Owen V. Cawley, 46. 
 Owen V. Long, 107, 116. 
 Owens V. Uickinsoo, 44. 
 
 Pace V. State, 3. 
 Palmer v. Palmer, 65. 
 Parke v. Kleeber, 20. 
 Passenger Ky. Co. v. Young, 143. 
 Patcliin V. Cromach, 107. 
 Patterson v. Gaines, 6, 12, 70. 
 Patterson v. Lawrence, 51. 
 Patterson t. Pittsburgh R. Co., 
 
 135. 
 Peck V. Peck, 10. 
 Pelzer i>. Campbell, 45. 
 People V. Baker, 67. 
 People u. Byron, 93. 
 People V. Paber, 64. 
 People V. Humphreys, 77. 
 People V. Kearney, 91. 
 People V. Mercein, 76. 
 People V. Randolph, 106. 
 People V. Townsend, 50. 
 People V. Winters, 18. 
 People V. Wright, 26. 
 Perkins v, Perkins, 48. 
 Perry v. Perry, 64. 
 Person v. Chase, 108. 
 Peterson v. HafEner, 118. 
 Peterson v. Whitebreast C. & M. 
 
 Co., 133. 
 Pettit V. Pettit, 62. 
 Petty V. Roberts, 115. 
 Petzer v. Campbell, 45. 
 Phelps V. Wait, 148. 
 Phila., etc., R. Co. v. Larkin, 139. 
 Phillips V. Gregg, 12. 
 Phillips V. Meyer, 59. 
 Phillips V. Wooster, 58. 
 Piepho V. Piepho, 5. 
 Pierce v. Pierce, 56, 60, 73. 
 Pierpont v. Wilson, 22. 
 Pile V. Pile, 59. 
 Pillow V. Bushnell, 27. 
 Pitcher v. Lay cock, 117. 
 Platts V. Rosebury, 74. 
 Plumley v. Birge, 120. 
 Plummer v. Webb, 80, 82. 
 Pool V. Gott, 78. 
 Poole, In re, 78. 
 Porterfield v. Butler, 19, 38. 
 Pottinger v. Wightman, 94. 
 Powell V. Powell, 16, 63. 
 
 Pray v. Stebbins, 35. 
 Prentice v. Decker, 80. 
 Pretzinger v. Pretzinger, 73. 
 Priest V. Cone, 44. 
 Priestley v. Fowler, 130. 
 Proctor i). Sears, 112. 
 Putnam v. Ritchie, 99. 
 
 Quarman v. Bennett, 147. 
 Queen v. Morby, 72. 
 Queen v. Nash, 88. 
 Queen v. Willis, 10. 
 Quincy v. Quincy, 23. 
 Quinn v. Power, 142. 
 
 Rains v. Hays, 88. 
 Randall v. Sweet, 111. 
 Rawlins v. Vandyke, 24. 
 Rawson v. Penn. R. Co., 31. 
 Ray V. Tubbs, 119. 
 Raymond v. Loyd, 75. 
 Reade v. Livingston, 58. 
 Reading, etc., Co., Appeal of, 11. 
 Reed v. Batehelder, 107. 
 Reed v. Gannon, 59. 
 Reed v. Moore, 23. 
 Reed v. Reed, 59. 
 Reese v. Chilton, 23. 
 Reg. V. Orgill, 8. 
 Reg. V. Smith, 77, 128. 
 Reis V. Lawrence, o3 Cal. 129. 
 Reynolds v. Reynolds, 9, 65. 
 Reynolds v. Robinson, 51. 
 Reynolds v. United States, 6. 
 Rice V. Boyer, 119. 
 Rice V. Railroad Co., 53. 
 Rich V. Cockell, 44. 
 Richardson v. Boright, 115. 
 Richardson v. Eagle Machine 
 
 Works, 136. 
 Richardson v. Wyman, S8. 
 Rickenbacker v. Zimmerman, 88. 
 Ridgway v. Matting, 38. 
 Robalina v. Armstrong, 89. 
 Robbins v. Eaton, 114. 
 Robbins v. Robbins, 63. 
 Robertson v. Terre Haute, etc., 
 
 R. Co., 134. 
 Robinson v. Cone, 121. 
 Robinson v. Frost, 16. 
 Robinson v. Nabon, 25. 
 Robinson v. Rivers, 50. 
 
xvaii 
 
 TABLE OP CASES. 
 
 Robinson v. Robinson, 88. 
 
 Roche V. Chaplin, 98. 
 
 Rogers b. Union Cent. Ins. Co., 
 
 52. 
 Rollins V. Marsh, 97. 
 Rosener v. Herman, 135. 
 Ross w. Winners, 19. 
 Rotche V. Miles, 25. 
 Rounds I). Del. L. & W. R. Co., 
 
 144, 145. 
 Rowe V. Smith, 43, 50. 
 Ruddeman v. Smith, 143. 
 Rush V. Rush, 69. 
 Russell V. People's Sav. Bk., 53. 
 Ryan w. Dayton, 135. 
 
 Sands v. Child, 147. 
 Sargent v. Matthewson, 82. 
 Savage v. Murphy, 58. 
 Savage v. Walthew, 138. 
 Scanimel v. Wilkinson, 54. 
 Scarritt, Matter of, 78. 
 Schaetfer v. Osterbrink, 85. 
 Schultz V. Schultz, 48. 
 Scott V. Buchanan, 108. 
 Scott V. Shufeldt, 9. 
 Scott V. Watson, 119. 
 Scrimshire v. Scrimshire, 12. 
 Seaton v. Benedict, 22. 
 Security Co. v. Boyant, 37. 
 Segelbaum v. Segelbaum, B6. 
 Seiler v. People, 26. 
 Senseraan's Appeal, 94. 
 Sewall V. Sewall, 64. 
 Seward v. Jackson, 58. 
 Sharpley v. Doutre, 21. 
 Shaver v. Ingham, 126. 
 Shaw V. Coffin, 119. 
 Shaw V. Thompson, 24. 
 Shea V. Sixth Ave. R. Co., 144. 
 Sherley v. Billings, 143. 
 Sherman v. Champ. Transp. Co., 
 
 137. 
 Sherwin v. Sanders, 38. 
 Shivers v. Simmons, 51. 
 Shorter v. Nelson, 49. 
 Shropshire v. Burns, 108. 
 ShurtlefE v. Millard, 117, 118. 
 Shute V. Dorr, 79. 
 Simms v. Norris, 98. 
 Simpson v. Buck, 80. 
 Sims V. Bverhardt, 115. 
 Singer v. McCormick, 124. 
 
 Skean v. Skean, 66. 
 
 Slater v. Jewett, 134. 
 
 Sloper V. Cottrell, 40. 
 
 Smalley v. Anderson, 27. 
 
 Smith V. Bean, 97. 
 
 Smith V. Foran, 136. 
 
 Smith V. Hestonville R. Co., 82. 
 
 Smith V. Oliphant, 111. 
 
 Smith V. Rogers, 72. 80. 
 
 Smith V. Smith, 8, 64, 79, 88. 
 
 Smout V. Ilberry, 147. 
 
 Smyley v. Reese, 36. 
 
 Snowden v. State, 75. 
 
 Sottomayor v. De Barros, 13, 68. 
 
 Soule 0. Bonney, 8. 
 
 Spain V. Arnott, 126. 
 
 Spencer v. C^rr, 120. 
 
 Spicer v. Earl, 118. 
 
 Spotswood V. Barrow, 126, 127. 
 
 Spring V. Woodworth, 102. 
 
 Squires v. Squires, 62. 
 
 St. John V. St. John, 61. 
 
 St. John's Parish v. Bronson, 21. 
 
 St. Louis, etc., K. Co. v. Irwin, 
 
 131. 
 St. Louis, etc., R. Co. v. Weaver, 
 
 134. 
 Stark V. Patterson, 129. 
 State V. Cleaves, 26. 
 State V. Cook, 96. 
 State V. Edens, 48. 
 State V. Gibson, 3. 
 State V. Greensdale, 97. 
 State V. Housekeeper, 28. 
 State V. Jones, 75. 
 State V. Kennedy, 3, 13. 
 State V. Pettie, 18. 
 State V. Plaisted, 116. 
 State V. Ritchie, 107. 
 State V. Ross, 13. 
 State V. Sanders, 98. 
 State V. Slevin, 95, 98. 
 State V. Walker, 10. 
 Stevens v. Woodward, 143. 
 Stevenson v. Belknap, 83. 
 Stevenson v. Gray, 12. 
 Stewart v. Brooklyn Crosstown 
 
 R. Co., 143. 
 Stewart v. Stewart, 66. 
 Stillman v. Stillman, 66. 
 Stocton V. Earsey, 53. 
 Stokes V. Brown 114. 
 Stone V. Hills, 1*7. 
 Stone I'. Stone, 85. 
 
TABLE OP CASES. 
 
 XIX 
 
 Stratton v. Stratton, 57, 68. 
 Straus 1'. Meertief, 137. 
 Street Ry. Co. v. Bolton 140. 
 StroliI V. Levan, 84. 
 Strong V. Moe, 95. 
 Stroop V. Swartz, 27. 
 Studwell V. Shapter, 119. 
 Sturtevant v. State, 77. 
 Siickinan v. Wood, 86. < 
 
 Sullivan v. India Mfg. Co., 128. 
 Sullivan v. Sullivan, 9. 
 SutclifEe V. Atlantic Mills, 125. 
 Sutton V. Hoffman, 83. 
 Swift V. Kelley, 12. 
 
 Taddiken ?>. Cantrell, 51. 
 
 Tait V. Culbertson, 43. 
 
 Taunton v. Plymouth, 86. 
 
 Tarrant v. Webb, 129. 
 
 Taylor v. Mead, 54. 
 
 Taylor v. Phillips, 102. 
 
 Taylor v. Tavlor, 68. 
 
 Tatro V. Tatro, 68. 
 
 Teagarden v. MeLaughlln, 85. 
 
 Terhune v. Terhune, 65. 
 
 Terre Haute, etc., R. Co. v. Jack- 
 son, 144. 
 
 Terry v. Hutchinson, 83. 
 
 Teter v. Teter, 12. 
 
 Thayer v. White, 74. 
 
 Thompson v. Allen, 48, 58. 
 
 Thompson v. Herman, 132. 
 
 Thompson v. Lay, 113. 
 
 Thompson v. Ross, 83. 
 
 Thompson v. Strickland, 114. 
 
 Thorne v. Kathan, 24. 
 
 Thorp V. Thorp, 7. 
 
 Tiemyer v. Turnquist, 50. 
 
 Tierney v. Minn., etc., R. Co , 134. 
 
 TifEt V. Tifft, 84. 
 
 Tipping V. Tipping, 31. 
 
 Tobey v. Wood, 116. 
 
 Todd V. Kerrich, 124. 
 
 Tompert's Exrs. v. Tompert, 7, 
 63. 
 
 Torrey v. Torrey, 34. 
 
 Torrington v. Norwich, 78. 
 
 Touch V. Parsons, 107. 
 
 Towne v. Wiley, 118, 119. 
 
 Townsend v. Kendall, 96. 
 
 Trustees n. Anderson, 108. 
 
 Tubb V. Harrison, 80. 
 
 Tucker v. Moreland, 115 
 
 Tuller, /ij re, 55. 
 Turner v. Gaither, 71. 
 Turner v. Mason, 126, 137. 
 
 Ueeker v. Koehn, 114. 
 United States v. Bainbridge, 107. 
 United States v. Bixby, 106. 
 Unity, etc.. Association, In re, 119. 
 Urban v. Grimes, 115. 
 
 Vanderhyden v. Mallory, 19. 
 Van Dorn v. Young, 79. 
 Van Duzer v. Van Duzer, 105. 
 Van Fossen v State, 67. 
 Vanneman v. Powers, 52. 
 Vansittart v. Vansittart, 61. 
 Van Valkenburgh v. Watson, 75. 
 Van Veghten v. Van Veghten, 64. 
 Van Voorhis v. Brintnall, 7, 13, 64. 
 Varney v. Varney, 8. 
 Vaughan v. Vanderstegen, 44. 
 Vaughn v. Parr, 107, 115. 
 Velde V. Severing, 98. 
 Voorhies v. Voorhies, 115. 
 
 W. o. H., 5. 
 W. V. W., 65. 
 Wailing v. Toll, 111. 
 Waite V. N. R. Co., 121. 
 Wakefield v. Mackay, 8. 
 Waldfon's Case, 77. 
 Walker v. Laighton, 22. 
 Wall V. Williamson, 12. 
 Wallace v. Latham, 115. 
 Wallace v. Lewis, 114. 
 Wallace v. Morss, 119. 
 Walsh V. Powers, 114. 
 Waltermire v. Waltennire, ( 
 Wambold v. Vick, 79. 
 Ware v. Brush, 115. 
 Warliek v. White, 47, 58. 
 Warwick v. Lawrence, 49. 
 Watkins v. Abrahams, 53. 
 Watkins, Ex parte, flfe. 
 W.atson V. Billings, 120. 
 Watson V. Threckeld, 25. 
 Weaver v. Jones, 117. 
 Webb r. Cole, 125. 
 Webb i>. Jones, 54. 
 Webster ;). McGinnis, 25. 
 Weed V. Ellis, 97. 
 
XX 
 
 TABLE 01" CASES. 
 
 Wellesley v. Beaufort, 76. 
 Wcstbrook V. Mobile, etc., K. Co., 
 
 121. 
 Western E. Co. v. Bishop, 135. 
 Westlake v. Westlake, IB. 
 Wheaton v. East, 112. 
 Wlieeler v. Wlieeler, 64. 
 Whelan v. Whelan, 55, 56. 
 Whispell V. Whispell, 65. 
 Whltaker's Case, 93. 
 Wliite V. Graves, 38. 
 Wliite V. Henry, 86. 
 White V. Story, 47. 
 White V. Wager, 47, 55. 
 Whitney v. Dutch, 107, 114. 
 Whittaker v. Whittaker, 59. 
 Wieland w. Kobick, 119. 
 Wier V. Groat, 50. 
 Wigmore v. Jay, 133. 
 Wilcox V. Koath, 113. , 
 Wilcox V. Wilcox, 78, 94. 
 Wilder v. Abernethy, 52. 
 Wilkinson v. Joughin, 118. 
 Willard v. Willard, 8. 
 Williams v. Churchill, 132. 
 Williams v. Cramston, 147. 
 Williams u. Hutchinson, 78, 80. 
 Williams v. Jones, 140. 
 Williams v. Moor, 107. 
 Williams v. Prince, 23. 
 Williams v. Urmston, 45. 
 
 Williams v. Williams, 11. 
 Wiilson V. Smith, 24. 
 Wilmer v. Gaither, 19. 
 Wilson V. Ford, 20. 
 Wilson V. Glossop, 23. 
 Wilson V. McMillan, 79. 
 Wilson V. Merry, 133. 
 Wilson V. Wilson, 61. 
 Wilt V. Vickers, 81. 
 Wilton V. Middlesex E. Co., 139. 
 Winans v. Peebles, 47. 
 Winne, Matter of, 34. 
 Wise V. Wilson, 127. 
 Wiseman v. Wiseman, 37. 
 Wodell V. Coggeshall, 86. 
 Wolfe V. Howes, 137. 
 Wood V. Gale, 94. 
 Wood V. Mather, 103. 
 Wood V. O'Kelly, 21. 
 Woodman, y. Chapman, 19. 
 Woodman v. Joiner, 140. 
 Woods V. Ayers, 125. 
 Wray v. Wray, 24. 
 Wright V. Maiden E. Co., 121. 
 Wrigiit V. Eawson, 130. 
 Wright V. Wright, 57. 
 Wyman v. Adams, 108. 
 Wymore v. Mahask Co., 121. 
 
 Yale V. Dederer, 45. 
 
CHAPTER I. 
 
 The Domestic Relations are those of Husband 
 and Wife, Parent and Child, Guardian and Ward, 
 and Master and Servant. 
 
 HUSBAND AND WIFE. 
 
 Under the head of Husband and Wife we have to 
 consider: first, the formation of the relation, or 
 Marriage ; second, its rights, duties, and liabilities ; 
 third, its dissolution, or Divorce. 
 
 MAEEIAGB. 
 
 In order to form a valid marriage the parties must 
 not be within the prohibited degrees of kindred; must 
 be of proper social condition ; must be mentally and 
 physically competent; of proper age; unmarried; 
 must give an intelligent assent; and that assent 
 must be evidenced in accordance with the prescribed 
 forms of law. We are therefore in this connection 
 to treat, first, of blood ; second, of social condition ; 
 third, of mental capacity; fourth, of physical ca- 
 pacity ; fifth, of age ; sixth, of prior marriage ; 
 seventh, of force or fraud; eighth, of the evidence 
 of the assent to the contract. 
 
 1. Blood. — Law forbids the marriage of near rela- 
 tions. Such marriages are not only forbidden by 
 divine law, but physiological experience shows that 
 
 1 
 
2 THE DOMESTIC BELATIONS. 
 
 the issue of such connections is nearly always cIbt 
 generate, frequently monstrous. The English law 
 draws the line of prohibition at first cousins. The 
 children even of first cousins are apt to be mentally 
 and physically feeble. Close intermarriage between 
 royal and other aristocratic families has been observed 
 to breed a degenerate offspring. The English law 
 not only prohibits marriage between persons thus 
 allied by blood, or consanguinity, but extends the 
 prohibition to affinity, or the relationship between 
 the husband and the wife's kindred, and the wife and 
 the husband's kindred. Thus in England marriage 
 with a deceased wife's sister is prohibited. This has 
 never obtained in this country.^ The contrary has 
 been held in Vermont.^* In Massachusetts, marriage 
 between step-father and step-daughter is forbidden. 
 
 1 Except formerly in Virginia. ' Kelly v. Scott, 5 Gratt. 499. 
 
 1* Blodget V. Brinsmaid, 9 Vt. 27. See 2 Kent Com. 85, note a. 
 The basis of the idea that such marriages are immoral is this: In 
 Leviticus v. 6, it is said, " None of you shall approach to any that is 
 near of kin to him.'' This, we are told by the theologians, is a mis- 
 translation ; it should be " flesh of his flesh." The Bible also says 
 that husband and wife are "one flesh." Therefore the wife's sister is 
 flesh of the husband ! Many times hare the House of Commons by 
 enormous majorities voted to abolish this rule, and eight times have 
 the House of Lords by narrow majorities preserved it. A few years 
 ago, the measure was saved by a majority of eleven, precisely the 
 number of bishops in the upper house voting that way. Very re- 
 cently the measure was defeated in that house by a majority of five. 
 The innate sense of decency on the subject of such marriages will 
 generally save a community from* error. Thus, although in New 
 York a marriage between nephew and aunt is not void, yet it is so 
 abhorrent that an action for breach of promise of such a marriage, the 
 promise having been made in a State where such a marriage is pro- 
 nounced incestuous, will not be maintained in this State. Campbell 
 V. Crampton, 8 Abb. N. Cas. 363 ; 18 Blatch. 150. 
 
MAEEIAGE. 3 
 
 In most of our States the matter is regulated by 
 statute. 
 
 2. Social Condition. — At common law, and in 
 England, race, color, and social rank constitute no 
 impediment to marriage. In this country, in many 
 States marriage is by statute forbidden between 
 whites and negroes or Indians. Such laws prcTail 
 in Alabama, California, Delaware, Florida, Georgia, 
 Indiana, Kentucky, Maine, Maryland, Michigan, 
 Missouri, Nebraska, North Carohna, Oregon, Rhode 
 Island, Tennessee, Texas, Virginia, and West Vir- 
 ginia. In six of these States slavery never pre- 
 vailed. In Maine and Rhode Island, as well as in 
 North Carolina, marriages between whites and 
 Indians, as well as between whites and negroes, are 
 prohibited. These laws have recently been pro- 
 nounced valid within the Federal constitution, since 
 the abolition of slavery, by several State courts,^ 
 but the question is yet to be settled by the Federal 
 supreme court.^* 
 
 3. Mental Capacity. — An intelligent consent is 
 essential to a valid marriage. Hence an idiot or 
 
 2 State V. Gibson, 36 Ind. 389; s. c, 10 Am. Rep. 42; State v. 
 Kennedy, 76 N. C. 251; s. C, 22 Am. Eep. 683; Green v. State, 58 
 Ala. 190; B.C., 29 Am. Kep. 739; Kinney's Case, 30 Gratt. 859; B.C., 
 32 Am. Eep. 690; Frasher v. State, 3 Tex. Ct. App. 263; B.C., 30 
 Am. Eep. 131. 
 
 *' But that court, in Pace v. State, have recently held that a state 
 statute punishing adultery and fornication, and providing a greater 
 punishment for each " if any white person and any negro intermarry 
 or live in adultery or fornication with each other," is not invalid under 
 the Fourteenth Amendment of the Federal Constitution. 106 U. S. 
 583, affirming 61 Ala. 231 ; 44 Am. Eep. 513. 
 
4 THE DOMESTIC BELATIONS. 
 
 lunatic cannot contract marriage. So of other per- 
 sons who haye not the capacity to understand the 
 duties and obligations of the relation. The test 
 usually applied in the courts is that of fitness for 
 the general transactions of life.^ Yet as the highest 
 degree of intelligence is not requisite to enable one 
 to make his will, so it is not necessary to enable him 
 to make a valid marriage. So he may contract a 
 valid marriage although he has a particular mental 
 delusion, or is eccentric or morbid, provided he is 
 otherwise of sound mind and ordinary prudence and 
 skiU.'' Marriage contracted during temporary insan- 
 ity is void ; ^ but marriage contracted during a lucid 
 interval is valid ;^ except when provided, as in 
 England and in some of our States, by statute, that 
 it is void during an unrevoked commission of lu- 
 nacy. Drunkenness does not incapacitate, unless so 
 great that the party does not know what he is 
 about.^ Deaf and dumb persons, formerly classed as 
 idiots, may now, it is held, contract a valid marriage.* 
 Kent says (2 Com. 76) that a marriage with an 
 idiot or lunatic is absolutely void, and no sentence 
 of avoidance is absolutely necessary; but in many 
 States guch a marriage, by statute, is not void, but 
 only voidable. 
 
 s Mudway v. Croft, 3 Curt. Ec. 671 ; Anon., 4 Pick, 32 ; McEl- 
 roy's Case, 6 "W. & S. 451. 
 
 * 2 Kent Com. 76. 
 
 6 Legeyt v. O'Brien, Milward,-325. 
 
 « 1 Bish. Marr. & Div. 130. 
 
 ' Clement v. Mattison, 3 Rich. 83 ; 2 Kent Com. 451. 
 
 * Dickinson v. Blisset, 1 Dickens, 268 ; Harrod v. Harrod, 1 Kay 
 & J. 4. 
 
MARRIAGE. 5 
 
 4. Physical Capacity. — Where impotence exists 
 there can be no valid marriage. But impotence 
 means physical incapacity; not mere coldness, 
 reluctance, or unwillingness, or even absolute refusal 
 to consent to sexual connexion.® Barrenness con- 
 stitutes no incapacity, nor does any pialformation 
 not preventing copulation, nor any curable disa- 
 bility.^" The impotency must have existed at the 
 time of the marriage. ^^ It is generally provided that 
 the invalidity must be established by the decree of a 
 competent court. Where the impotence is simply 
 the result of old age, the marriage is still binding. 
 " A man of 60, who marries a woman of 52, should 
 be content to take her tamquam soror."^ Puffendorf 
 says such old folks are " honorary members of the 
 matrimonial state, enjoying a title without an office." 
 But in one case a man of 54 was decreed a divorce 
 from a woman of 49 for impotence.^® 
 
 5. Age. — The common law fixes an age of con- 
 sent for a valid marriage at 14 in males and 12 in 
 females. A marriage, either party to which was 
 under the age of consent, may be avoided by either 
 party on arriving at such age.-'* A marriage, either 
 
 » Piepho V. Piepho, 88 111. 438; Merrill v. Merrill, 126 Mass. 228; 
 S. u. A., 3 P. Div. 72. But where there has never been any inter- 
 course, and the wife persistently refuses, the court will infer inca- 
 pacity. S. V. A., 3 P. Div. 72. The woman's conceded impotence, 
 and her refusal to submit to a surgical operation, constitute a valid 
 defence to an action for breach of promise of marriage. Gring v. 
 Lerch, 112 Penn. St. 244; s. c, 56 Am. Rep. 314. 
 
 w 1 Bish. Marr. & Div. §§ 321-340; Deane v. Aveling, 1 Robt. 279. 
 
 11 Devanbaugh v. Devanbaugh, 5 Pai. 554. 
 
 ^ Briggs V. Morgan, 2 Hag. Cons. 339. 
 
 w W. V. H., 2 Swab. & T. 240. " 1 Bish. Marr. & Div. § 149. 
 
6 THE DOMESTIC RELATIONS. 
 
 party to which was under the age of consent, may be 
 ratified, on arriving at that age, by consent implied 
 from continued intercourse or slight circumstances. 
 Consent of parents is not necessary to the marriage 
 of minors.^^ In some States such marriages are for- 
 bidden without being declared void, and penalties 
 are denounced for celebrating or contracting them. 
 Consent of parents was necessary by the civil law, 
 and is now in some European countries. 
 
 6. Prior Marriage. — Polygamy or bigamy is 
 denounced as a crime by all Christian communities, 
 and polygamous or bigamous marriages are void. 
 The polygamous marriages of Utah have recently 
 been pronounced invalid by the United States 
 Supreme Court, under the Federal statute.^® But to 
 render a subsequent marriage void, the former must 
 have been valid.^" At common law the subsequent 
 marriage is void ab initio, but statutes have relaxed 
 this rule by declaring that such marriages shall be 
 void only from the time when so pronounced by the 
 decree of a competent court. In most States, where 
 an absolute divorce is granted, the offending party 
 is prohibited from marrying again in the lifetime of 
 the other, and such marriage is void.^^ But in the 
 absence of specific statutory provision to the con- 
 trary, this can have no extra-territorial effect ; and if 
 
 15 2 Kent Com. 85. 
 " Reynolds v. U. S., 98 U. S. 145. 
 
 " Bruce v. Burke, 2 Add. Ec. 471 ; Patterson v. Gaines, 6 How. 
 650. 
 
 " Cropsey v. Ogden, 11 N. T. 230. 
 
MAEEIAGB. 7 
 
 the prohibited party contracts a marriage in another 
 State, even if he went there for the express purpose 
 of evading the prohibition, the marriage if valid 
 there will be recognized as valid in the former 
 State.19 
 
 7. Force or Fraud. — Kent says "a marriage pro- 
 cured by force or fraud is void ah initio, and may be 
 treated as void by every court in which its validity 
 may be incidentally drawn in question."^" So says 
 Schouler.21 But this has recently been denied, and 
 it has been held that such a marriage can only be 
 avoided by the person defrauded, in his lifetime.^^ 
 Statutes have changed the rule in some States, and 
 attached the invalidity to the time of a decree of 
 nullity. 
 
 Force implies physical restraint; fraud implies 
 deception. The general rule is that the force must 
 be such as would naturally serve to overcome the 
 will. The question of the amount of force depends 
 upon circumstances. If the person exercising the: 
 force occupies a position of authority and influence ^ 
 over the other, as guardian, a less degree of force 
 
 "Van. Voorhis v. Brintnall, 86 N. Y. 18; 40 Am. Rep. 505; 
 Thorp V. Thorp, 90 N. Y. 602. There is a singyilar statutory pro- 
 vision in New York, that such a prohibited party may he permitted 
 by the court to marry again, upon his showing that the other party 
 has re-married, that fire years have elapsed since the divorce, and 
 that his conduct has been uniformly good. 
 
 ^ 2 Kent Com. 76. 21 geji. Dom. Rel. 35. 
 
 22 Tompert's Exec. v. Tompert, 13 Bush, 326; 26 Am. Rep. 197. 
 But the committee of a lunatic may bring a suit for absolute divorce 
 for his ward. Baker v. Baker, 5 P. Div. 142 ; 6 id. 12. The guardian 
 of an insane woman cannot maintain an action for her divorce. Bird- 
 zell V. Birdzell, 33 Kans. 433 ; 52 Am. Rep. 539. 
 
8' THE DOMESTIC RELATIONS. 
 
 will suffice.^ A marriage procured by illegal arrest 
 may be avoided, and so where the arrest was legal 
 but malicious.^ But when a man under legal arrest 
 for seduction reluctantly marries the woman, the 
 marriage will not be set aside.® The right to avoid 
 a marriage for duress exists although it may not be 
 included among the statutory grounds.^ 
 
 As to Fraud. — The fraud which will avoid a mar- 
 riage must go to the essence of the contract. Caveat 
 emptor, the rule of trade, seems to apply. So fraud- 
 ulent representations by one party as to birth, age, 
 social position, fortune, health, manners, or character 
 will not suffice. " The law makes no provision for 
 a blind credulity, however it may have been pro- 
 duced." ^" So where a man represented that his 
 former wife was dead, but she was living, they hav- 
 ing been divorced; and where a woman concealed 
 the fact that she had some time before given birth to 
 an illegitimate child ; these facts were held not to 
 avoid the marriages.^ A false personation would 
 undoubtedly avoid the marriage.^* It has been held 
 that a concealed pregnancy by another at the time of 
 
 ^ Hartford v. Morris, 2 Hag. Cons. 423. 
 
 "* Eeg. V. Orgill, 9 C. & P. 80 ; Soule v. Bonney, 37 Me. 128. 
 
 ^* Jackson v. Winne, 7 Wend. 47 ; Honnett v. Honnett, 33 Ark. 
 156,; 34 Am. Eep. 39. 
 
 26 Willard v. Willard, 6 Baxt. 297; 32 Am. Eep. 529. 
 
 " Wakefield v. Mackay, 1 Phill. 137 ; Varney v. Varney, 52 Wis. 
 U20; 38 Am. Rep. 726. 
 
 ^ Clarke v. Clarke, 11 Abb. Pr. 228; Smith b. Smith, 8 Or. 100; 
 Meyer v. Meyer, 49 How. Pr. 311, must be regarded as bad law. 
 Hides V. Hides, 65 id. 17, is a case where a marriage was set aside 
 for fraud and undue influence through the means of spiritualism. 
 
 29 2 Kent Com. 77. 
 
MAEEIAGE. 9 
 
 the marriage, followed by birth, will avoid the mar- 
 riage.^" This doctrine has recently been denied in 
 North Carolina.^i The rule is the subject of enact- 
 ment in some States. Where a white man was 
 charged in bastardy proceedings by a white woman 
 with being the father of her child previously born, 
 which he had not seen, and he married her believing 
 the child to have been his, and it turned out that 
 the child was a mulatto, this was held fraud suffi- 
 cient to avoid the marriage.*^ If the fraud is not 
 that of a party, but of third persons, without his 
 knowledge, the marriage is not invalid.^ Generally, 
 a third person cannot interfere to avoid a marriage 
 for force or fraud.^ Ratification of a forcible or 
 fraudulent marriage by the injured party will render 
 it valid; as by connexion after removal of the 
 restraint or knowledge of the fraud.^^ 
 
 8. Evidence of the Assent to the Contract. — At 
 common law marriage is a civil contract, to which 
 consent alone is essential. It requires no legal 
 forms nor religious solemnities, nor special mode of 
 proof.^® The common rule is, that in the absence of 
 statutory regulation, consent per verba de presenti 
 
 ^'' EejnQolds v. Eeynolds, 3 Allen, 605 ; Montgomery v. Mont- 
 gomery, 3 Barb. Ch. 132 ; Baker v. Baker, 13 Cal. 87 ; Allen's Appeal, 
 99 Penn. St. 196 ; s. c, 44 Am. Eep. 101. 
 
 SI Long V. Long, 77 N. C. 304; 24 Am. Eep. 449. 
 
 '2 Scott V. SliTifeldt, 5 Pai. 43; note, 24 Am. Eep. 453. 
 
 ^ SulUvan v. Sullivan, 2 Hag. Cons. 246. 
 
 " McKinney v. Clarke, 2 Swan, 321. 
 
 S5 Scott V. Shufeldt, 5 Pai. 43. 
 
 '« Dyer v. Brannock, 66 Mo. 691 ; 37 Am. Eep. 369. 
 
10 THE DOMESTIC RELATIONS. 
 
 with or without consummation, or per verba defuturo 
 with consummation, constitutes a valid marriage.^" 
 The two highest legal tribunals in the world, how- - 
 ever, namely, the House of Lords and the Supreme 
 Court of the United States, were both equally- 
 divided in opinion on this proposition.^ In New 
 York, Illinois, and Rhode Island, it is now held that 
 mere verba de futuro, although followed by consum- 
 mation, do not constitute a valid marriage .^^ 
 
 Although " in most if not all of the United States 
 there are statutes regulating the celebration of mar- 
 riage, and inflicting penalties on all who disobey the 
 regulations, yet it is generally considered that in the 
 absence of any positive statute declaring that all 
 marriages not celebrated in the prescribed manner 
 shall be absolutely void, or that none but certain 
 magistrates or ministers shall celebrate a marriage, 
 any marriage regularly made according to the com- 
 mon law, without observing the statutory regula- 
 tions, would still be a valid marriage."*" 
 
 So a man may generally "marry himself," but 
 even if he is a magistrate or clergyman, he cannot 
 act as such in his own marriage, where a ceremonial 
 marriage is required. 
 
 8T Bish. Marr. & Div. § 227 ; 2 Kent Com. 87. 
 
 88 Queen v. Willis, 10 C. & P. 534; Jewell v. Jewell, I How. 219. 
 
 39 Cheney u. Arnold, 15 N. Y. 345 ; Peck v. Peck, 12 E. I. 485 ; 
 34 Am. Rep. 702 ; Hebblethwaite v. Hepworth, lU. 
 
 « 2 Greenl. Ev. 531 ; Hynes v. McDermott, 82 N. Y. 41 ; s. c, 37 
 Am. Eep. 538; Badger v. Badger, 88 N. Y. 546; s. c, 42 Am. Kep. 
 263. Contra : Com. v. Munson, 127 Mass. 459 ; s. c, 34 Am. Rep. 411. 
 See also 16 Alb. Law Jour. 217. State i>. Walker, 36 Kans. 297, s. c, 
 59 Am. Eep. 556, is an Interesting case, where the court refused to 
 sanction a " free love " marriage. 
 
MARRIAGE. 11 
 
 Present consent without cohabitation or ceremony 
 makes a yalid marriage.*^ This however has been 
 denied by an eminent authority .^^ But mere cohab- 
 itation without consent to marriage never makes a 
 valid marriage.*^ An assent to a ceremony under- 
 stood on both sides to be, given in jest, even if the 
 clergyman is in earnest, will not constitute a valid 
 marriage ; ** but otherwise, if one of the parties is in 
 earnest ; ^^ and where one party procures a mock ce:^- 
 emony to be performed by one falsely personating a 
 clergyman, it will bind both if the other assents in 
 good faith.*^ 
 
 Intercourse illicit in its commencement will be 
 presumed always so to continue, and no marriage can 
 be presumed from it.*'' Without express proof of 
 words of consent a valid marriage may be predicated 
 of cohabitation, acknowledgment of a marriage by 
 the parties, reception of them by relatives and 
 friends and in society as husband and wife, and com- 
 mon reputation.*^ Even though it may invalidate 
 a subsequent marriage.**- But not as against a prior 
 ceremonial marriage.^* A formal marriage being 
 
 *i Jackson v. Winne, 7 Wend. 47. 
 ^ Jaqnes v. Pub. Adra., 1 Bradf. 499. 
 " Clayton v. Wardell, 4 N. T. 230. 
 *4 McClurg V. Terry, 21 N. J. Eq. 225. 
 *'' Hayes v. People, 25 N. Y. 390. 
 «6 Id. 
 
 *'' 'Williams v. Williams, 46 Wis. 464 ; 32 Am. Rep. 466 ; Appeal 
 of Reading, etc. Co., 113 Penn. St. 204 ; 57 Am. Rep. 448. 
 
 ** O'Gara v. Eisenlohr, 38 N. Y. 296 ; Hynes v. McDermott, supra. 
 *' Brown v. Bowers, 1 Abb. Ct. App. Dec. 214. 
 M Jones V. Jones, 48- Md. 391 ; 30 Am. Rep. 466. 
 
12 THE DOMESTIC KELATIONS. 
 
 proved, evidence that the cohabitation was reputed 
 to be unlawful is incompetent.^"* Where there is 
 evidence of marital cohabitation, the presumption 
 of marriage will not be overcome by the contrary 
 statement of one of the parties-^^t 
 
 Foreign Marriage. — It is a well settled principle 
 that a marriage valid where celebrated is valid 
 everywhere, and one invalid where celebrated is 
 invalid everywhere.^^ It was even held at an early 
 day, in respect to the Gretna Green marriages, that 
 where parties leave their own State or country for 
 the express purpose of evading the local legal re- 
 quirements, marry abroad, and return, the marriage 
 is valid.^2 This is now the law of England and of 
 most of our States.^^ This doctrine however is sub- 
 ject to an exception in case of marriages regarded in 
 the domicile of the parties as immoral or incestuous ; 
 as in England, where an Englishman met in Den- 
 mark the sister of his deceased wife, and there mar- 
 ried her, the marriage although valid in Denmark 
 was held void in England.^* So, in North Carolina, 
 a marriage between a white and a negro, residents 
 of that State, who left that State for the purpose of 
 
 ^ll' Northrop v. Knowles, 52 Conn. 522 ; 52 Am. Eep. 613. 
 
 sot Teter v. Teter, 101 Ind. 129 ; 51 Am. Eep. 472. 
 
 51 Scrimshire v. Scrimshire, 2 Hag. Cons. 395 ; Hare v. Gibson, 32 
 Ohio St. 33 ; Oinson v. Heritage, 45 Ind. 73 ; 15 Am. Eep. 258. 
 
 i*'^ Corapton V. Bearcroft, 2 Hag. Cons. 443. 
 
 ^ Medway v. Needham, 16 Mass. 157 ; Stevenson v. Gray, 17 B. 
 Monr. 193; Swift v. Kelley, 3 Knapp, 257; Morgan v. McGhee, 5 
 Hnmph. 13 ; Wall v. Williamson, 8 Ala. 48 ; Patterson v. Gaines, 6 
 How. 550; Phillips v. Gregg, 10 "Watts, 158; FornstiU v. Murray, 
 1 Bland, 479. 
 
 " Brook V. Brook, 9 H. L. 193 ; Harvey v. Farnie, 6 P. Div. 35. 
 
MARRIAGE. 13 
 
 evading the law, and were married in a State where 
 such marriage was legal, and returned to North Caro- 
 lina, the marriage was held void under the statute 
 of that State.^^ Yet where such intent was lacking, 
 and the negro was a resident of the other State, the 
 marriage was held valid in North Carolina.^^ In a 
 very recent case, the marriage of first cousins, Por- 
 tuguese, one of whom was domiciled in England and 
 the other in Portugal, where such marriages are for- 
 bidden, was upheld in England.^' A polygamous 
 marriage contracted by a domiciled Englishman in 
 an uncivilized country, according to the custom of 
 a native tribe, is invalid under English law.^^ 
 
 65 State V. Kennedy, 76 N. C. 251 ; 22 Am. Rep. 683. 
 
 66 State V. Ross, 76 N. C. 242; 22 Am. Rep. 678. See Van Voorhis 
 V. Brintnall, supra. 
 
 6^ Sottomayor v. DeBarros, 3 P. Div. 1 ; 5 id. 94. 
 68 Re BetheU, 38 Ch. Div. 220. 
 
CHAPTER II. 
 
 DUTIES, BIGHTS, LIABILITIES, AND DISABILITIES. 
 
 The common-law idea of marriage is that the hus- 
 band and wife become one person, and that person is 
 principally husband, the legal existence of the wife 
 being suspended and merged in that of the husband, 
 under whose wing or cover she is; whence she is 
 called feme covert, and her condition during marriage 
 is called coverture. She is subordinate to the wiU 
 and dominion of her laron or lord. It is her duty 
 to obey and follow him. He is the houseband or 
 bond that holds together the house or family. He 
 has the custody and control of her person. He may 
 moderately chastise her. Neither can testify for or 
 against the other. The husband becomes entitled to 
 all her personal property, whether acquired before 
 or after marriage, and to a tenancy during coverture 
 and by curtesy in her real estate. She acquires no 
 absolute interest in his property except dower. As 
 an offset, the husband becomes alone liable in 
 damages for all frauds and injuries committed by the 
 wife before or after marriage, whether she brought 
 him any fortune or not. On the other hand, he 
 alone is entitled to compensation for the like 
 fraiids and injuries committed against her. She 
 alone is liable for her crimes committed before mar- 
 riage; but after marriage, if she commits a crime. 
 
' MUTUAL DUTIES. — DOMICILE. 15 
 
 less than treason or murder, in his presence and by 
 hia command, it is presumed prima facie that he 
 coerced her, and she is not responsible. She cannot 
 bind herself by contract with others than her hus- 
 band, nor can she contract with her husband. 
 Neither can give or sell to the other, and neither can 
 sue the other except for divorce. Nor after divorce 
 can one sue the other for a wrong during coverture. ^ 
 Such is the common-law theory, unaffected by the 
 doctrines of equity and irrespective of the recent 
 statutes.^ To particularize : 
 
 MUTUAL DUTIES. 
 
 It is the wife's duty to love, honor, and obey the 
 husband, and it is the husband's duty to love, pro- 
 tect, and maintain the wife. He is bound to furnish 
 and guard the house; to provide according to his 
 means and condition for her maintenance ; to defend 
 her from personal insult and wrong ; to be kind to 
 her; to see that the offspring are reared with care 
 and tenderness. 
 
 DOMICILE. 
 
 The husband is entitled to select the mutual dom- 
 icile, where the wife is bound to reside, and whither 
 she is bound to follow him. It has even been held 
 that his ante-nuptial contract not to take the wife 
 away from her parents is void.* But the wife is not 
 
 ' Abbott V. Abbott, 67 Me. 304 ; 24 Am. Bep. 27. 
 
 2 Schoul. Dom. Eel. 
 
 8 Hair v. Hair, 10 Rich. Eq. 163. 
 
16 THE DOMESTIC KELATIONS. 
 
 bound to follow the husband to prison or into ban- 
 ishment. If he treats her cruelly, or renders her 
 home unfit for a chaste woman, she may leave him.* 
 Probably she would not be bound to follow him into 
 an unsafe country or on a perilous journey. Some 
 recent cases have gone great lengths in lenity toward 
 the wife, one even holding that she may excuse her- 
 self from accompanying him on account of her dis- 
 like to be near his relatives.® (But this is doubtful.) 
 But neither husband nor wife can legally be com- 
 pelled to live with the other, nor to submit to sexual 
 intercourse.®* 
 
 EIGHT TO PERSON AND SOCIETY OF WIFE. 
 
 The husband is entitled to the custody and pos- 
 session of his wife's person and to her society and 
 services. So he can recover his wife from any per- 
 son who withholds her from him, and may recover 
 damages against all who improperly entice her away 
 or withhold her.^ The wife has no corresponding 
 right to her husband's person, but she has a corre- 
 sponding right of action, for the loss of his society 
 and companionship, against one who wrongfully pro- 
 cures and induces him to abandon or send her away.'' 
 
 * Houliston V. Smyth, 3 Bing. 127. 
 
 6 Powell V. Powell, 29 Vt. 148. 
 
 5* The Koman law did not exact any sexual intercourse. In the 
 Greek and the Jewish law it was otherwise. 
 , 6 Huteheson v. Peck, 5 Johns. 196. 
 
 ' Westlake v. Westlake, 34 Ohio St. 621 ; 32 Am. Eep. 397 ; Jaynes 
 Wi Jaynes, 39 Hun, 40. The wife is the natural guardian of her insane 
 husband, and is entitled to the custody of his person, as against his 
 relatives. Robinson v. Frost, 54 Vt. 105 ; 41 Am. Eep. 835. 
 
EIGHT TO CHASTISE AKD EESTRAIN THE "WIFE. 1? 
 
 Parents and near relatives stand on a different foot- 
 ing from strangers, and may' harbor a wife who 
 leaves her husband for good cause ; ^ but even the 
 father must relinquish the. daughter to the husband 
 if she wishes to return. The husband's right to the 
 wife's society cannot be defeated by her action to 
 eject him from her lands.^ 
 
 EIGHT TO CHASTISE AND EESTEAIN THE WIFe/ 
 
 At ancient common law the husband had the right 
 moderately to chastise his wife, and the ancient idea 
 of moderation is indicated by the permission to use 
 for that wholesome exercise a stick not bigger than 
 the man's thumb.^ But under modern common law, 
 the husband has no right to strike his wife even if 
 she is drunk or insolent.^" Kent intimates that the 
 husband has the right of " gentle restraint " over the 
 wife, but it is doubtful that he has any right forcibly 
 to restrain or imprison her, except to prevent her 
 miscondiict. It is said in England that he may pro- 
 hibit her from receiving visits from her relatives,,, 
 because, as one writer says, " Although she may be 
 very amiable, her connections 'may not be so."^^ 
 There is no doubt that the husband may forcibly 
 prevent the wife from eloping, or restrain her from 
 
 8 Manning v. Manning, 79 N. C. 293 ; 28 Am. Eep. 324. 
 
 ■» 1 Bl. Com. 444. 
 
 '» Com. V. McAfee, 108 Mass. 458 ; 11 Am. Eop. 383 ; Daniels v. 
 State, 2 Tex. Ct. App. 353. 
 
 '' Fras. Dom. Eel. 459. But the English are an ungallant people, 
 who name the bitterest kind of beer " Mother-in-law." 
 
 '■§«. aA.*,K. o«,ji^ ui Av«. tiAvJ ihJ. /111. • 
 
18 THE DOMESTIC RELATIONS. 
 
 acts of violence against others as well as himself.^^ 
 Undoubtedly the wife may defend herself from her 
 husband's violence. Either may be indicted for an 
 assault on the other.^^ 
 
 BIGHT TO TESTIFY. 
 At common law husband and wife cannot be wit- 
 nesses for or, against one another in civil actions nor 
 on a criminal prosecution, even by mutual consent.^* 
 Some writers put this on the ground of the marital 
 unity, others on that of public policy. This rule 
 holds even after the dissolution of the marriage by 
 death or divorce,^^ and extends to their declara- 
 tions.^^ The chief exception to this rule is in the 
 case of criminal complaints by the one against the 
 other for personal injuries.^^ In a suit for limited 
 divorce on the ground of cruel treatment, the wife is 
 a competent witness against the husband.^^ After the 
 dissolution of the marriage, either may testify to facts 
 not acquired by means of the matrimonial relation.^® 
 
 LIABILITY OF HUSBAISTD FOR "WIFE'S DEBTS. 
 
 At common law the husband remains liable for his 
 wife's debts contracted before marriage only so long 
 .as the coverture lasts.^" His liability ceases with his 
 
 12 People V. Winters, s! Park. Cr. 10. 
 
 IS Daniels v. State, 2 Tex. Ct. App. 353 ; State v. Pettie, 80 N. C. 367. 
 i« Davis V. Dinwoody, 4 T. R. 679. 'e Ibid. § 34,1. 
 
 15 1 Greeul. Ev. § 337. " Ibid. § 343. 
 
 1' Even when the cruelty is excessive sexual intercourse. Melviii 
 V. Melvin, 58 N. H. 569 ; 42 Am. Eep. 605. 
 w 1 Greenl. Ev. § 338. 
 M Heard v. Stamford, 3 P. Wms. 409. 
 
"wife's contract foe NBCESSAtirES. 19 
 
 wife's death, and his estate is not liable after his own 
 death. If the wife survives the hnsband, her liabil- 
 ity for her debts contracted before marriage re- 
 attaches, even though she has lost her means by the 
 marriage.^^ The discharge of the husband in bank- 
 ruptcy formerly discharged the wife's debt as well as 
 his own,^ but it is otherwise now.^'' Promise or part 
 payment by one cannot take a debt out of the stat- 
 ute of limitations as against the other. ^* 
 
 wife's conteact foe necessaries. 
 
 At common law the wife's power to contract 
 ceased with marriage. During marriage her con- 
 tracts of every description were absolutely void. So 
 a widow's agreement to pay her debt incurred during 
 marriage was legally void.^^ She could not earn money 
 for herself. ^^ She could convey her real estate by join- 
 ing in a deed with her husband, but she was not bound 
 by her covenant in the deed, nor could she separately 
 convey her own real estate. But the wife at common 
 law had and still has power by an implied Agency to 
 bind her husband for necessaries for herself. 
 
 We will inquire, first, what are necessaries; and 
 second, in what circumstances the wife may bind the 
 husband therefor. 
 
 20 Heard v. Stamford, 3 P. Wins. 409. 
 
 21 Woodman v. Chapman, 1 Camp. N. P. 189. 
 23 Miles V. Williams, I P. Wms. 249. 
 
 23 Vanderheyden v. Mallory, I Comst. 483. So of the husband's 
 discharge in insolvency. Allen v. Forbes, 59 Md. 
 
 2* Ross V. Winners, 1 Halst. 366 ; Wilmer v. Gaither, 68 Md. 342. 
 
 25 Meyer v. Haworth, 8 Ad. & EI. 467 ; Musick v. Dodson, 76 Mo. 
 624; 43 Am. Eep. 780; Porterfield v. Butler, 47 Miss. 165; 12 Am. 
 Eep. 339. 
 
 2a Oppley V. Clay, 2 Man. & Gr. 172. 
 
20 THE DOMESTIC BELATIONS. • 
 
 1. What are necessaries. — The wife's necessaries 
 are such as the law deems, essential to her health and 
 comfort : food, lodging, clothing, fuel, washing, med- 
 ical attendance, etc. These are to be determined, 
 both in amount and kind, by the apparent means and 
 social position of the husband and wife. The follow- 
 ing are illustrations of what may or may not be nec- 
 essaries for the wife : — 
 
 What are, for a married woman : Furniture of a 
 house, when she has a decree for .£380 a year as ali- 
 mony: Hunt V. DeBlaquiere, 5 Bing. 650. SUver 
 fringes to a petticoat and sidesaddle, worth £94, for 
 the wife of a sergeant-at-law : Skin. 349. A horse 
 worth f40, for the exercise of an invalid wife of a 
 miller earning $80 a month : Cornelia v. Ellis, 11 111. 
 584. A set of artificial teeth : Gilman v. Andrus, 28 
 Vt. 241. A piano : Parke v. Kleeber, 37 Penn. St. 
 241. Counsel fees to a deserted wife for advice as 
 to dealing with pressing tradesmen : Wilson v. Ford, 
 3 Ex. 63. (See Conant v. Burnham, 133 Mass. 503.) 
 
 What are not : £61 worth of dry goods, outfit for 
 a watering-place, for the wife of a poor barrister: 
 Atkins V. Curwood, 7 C. & P. 759. Bonnets, laces, 
 feathers, and ribbons, to the amount of £5,287, in 
 part of a year : Lane v. Ironmonger, 13 M. & W. 
 368. Jewelry for the wife of a special pleader: 
 Montague v. Benedict, 3 B. & C. 631. Passage 
 money to enable wife to join husband: Knox v. 
 Bushell, 3 C. B. (N. S.) 334. Counsel fees in a 
 divorce suit : Coffin v. Dunham, 8 Cush. 404 ; Clarke 
 y., Burke, 65 Wis. 859; 36 Am. Rep. 631. The 
 expense of an indictment against the husband for 
 
wife's contract for necessaries. 21 
 
 assault on wife : Grindall v. Godmond, 5 Ad. & Ell. 
 755. Services of a clairvoyant prescribing medi- 
 cines in mesmeric sleep: Wood v. O'Kelly, 8 Cush. 
 406. A church pew : St. John's Parish v. Bronson, 
 40 Conn. 75 ; 16 Am. Rep. 17. A pianette : Chappell 
 V. Nunn, 20 Alb. L. J. 18. £959 worth of foreign 
 birds for the rich wife of a poor rector : Freestone v. 
 Butcher, 6 C. & P. 643. A ball dress worth $80 : 
 Sharpley v. Doutre, 4 Can. Leg. News, 185. Pipes, 
 tobacco, and cigars : Bradley v. Murray, 66 Ala. 270. 
 
 2. In what circumstances the husband may he hound 
 for necessaries. — The liability may arise where the 
 parties live together or where they Ijve apart. 
 
 A. — Where they live together, the husband's 
 assent may be inferred from circumstances indicating 
 actual assent, or the law will imply an assent from 
 his iinfulfiUed duty to supply them, as by neglect or 
 refusal. Cohabitation in itself furnishes evidence of 
 the requisite authority, for it is not to be supposed 
 that the husband will go in person to buy every pin 
 or needle.^ This presumption is strengthened by 
 proof of the husband's assent to similar purchases.^^ 
 But this presumption may be rebutted by proof that 
 the husband had already furnished the wife sufB- 
 ciently, or had given her ready money for such pur- 
 chases.^ But the husband may be held to have 
 
 "Langfort t. Tyler, 1 Salk. 113; Emmett v. Norton, 8 C. & 
 P. 506. 
 
 «8 Jewsbury v. Newbold, 40 Eng. L. & E. 518. 
 
 29 Manby v. Scott, 1 Sid. 109 ; Etherington u. Parrott, 2 Ld. 
 Eaym. 1006. 
 
22 THE DOMESTIC BELATIONS. 
 
 ratified an unauthorized purchase, either by not 
 rescinding it upon learning it, or by his tacit consent 
 to his wife's retaining the articles.^ But ratification 
 is not presumed from his merely seeing his wife wear- 
 ing the articles.^i The husband may prohibit partic- 
 ular persons from selling goods to the wife on his 
 credit, ^^ but notice in the newspapers will not suf- 
 fice.^^ During cohabitation the wife may pledge the 
 husband's credit against his will, if he neglects or 
 refuses to supply her with necessaries, and in spite of 
 an express prohibition.^ But a husband who is able 
 and willing to supply his wife with necessaries, and 
 who has forbidden her to pledge his credit, cannot be 
 held liable for necessaries bought by her ; and a 
 tradesman, without notice of the husband's prohibi- 
 tion, and without having had previous dealings with 
 the wife with his assent, cannot maintain an action 
 against him for the price of articles of fetoale attire 
 suitable to her station in life, and supphed to her 
 upon his credit but without his knowledge or 
 assent.^^ 
 
 B. — Where the husband and wife live apart, the 
 general rule is that the husband is liable for the 
 wife's necessaries if the separation is by his fault, but 
 not otherwise. If the husband abandons or expels 
 
 81 Seaton v. Benedict, 5 Bing. 528 ; Ogden v. Prentice, 33 Barb. 160. 
 81 Atltins V. Curweod, 7 C. & P. 756 ; but contra Ogden v. Pren- 
 tice, supra. 
 
 32 McCutchen v. McGahay, 11 Johns. 281. 
 88 Walker v. Laighton, 11 Post. 111. 
 
 84 Keller v. Phillips, 40 Barb. 390. 
 
 85 Dehenham o. Mellon, 6 App. Cas. 24; Pierpont v. Wilson, 49 
 Conn. 450. 
 
wife's CONTRACT FOE NECESSARIES. 23 
 
 the wife, his liability is clear. So if she voluntarily 
 leaves in just apprehension of personal violence.^^ 
 It was once said that if she left his home because he 
 had placed a profligate woman at the head of his 
 table, he was not liable for necessaries.^'^ But this is 
 now denied, and it is held that ^he may leave, and 
 pledge his credit for necessaries if he renders his 
 house unfit for a modest woman to share it.^ The 
 husband cannot eva^e this liability by notice or 
 express prohibition 5^^ nor by a request that she shall 
 return ;*<• nor by an offer to take her back on improper 
 coriditions.^i If the wife leaves the husband without 
 sufficient cause she cannot bind him.^^ If she leaves 
 without sufficient cause, and returns, and her hus- 
 band refuses to receive her, she can henceforth bind 
 him if she has not misbehaved in his absence.*^ But 
 if the wife elopes and commits adultery, the husband 
 is not liable for her necessaries,^* even if he refuses 
 to take her back. But if he again receives her he 
 again becomes liable ; *^ but not for necessaries pro- 
 cured during her absence.*^ For the latter (says Mr. 
 
 S3 Houliston v. Smith, 2 C. & P. 22. =' 3 Taunt. 421 . 
 
 38 Lidlow V. Wilmot, 2 Stark. 77. '' Harris v. Morris, 4 Esp. 41. 
 
 ^u Emery v. Emery, 1 You. & Jer. .501. 
 
 41 Reed v. Moore, 5 0. & P. 200. 
 
 *^ Brown v. Midgett, 40 Vt. 68, and 29 siiprn. 
 
 « Manby v. Scott, 1 Sid. 129 ; Howard v. Whetstone, 10 Ohio, 365 ; 
 McCutchen v. McGahay, 11 Johns. 281. 
 
 " Morris v. Martin, 1 Str. 647. 
 
 *5 Harris v. Morris, 4 Esp. 41 ; Quincy v. Quiney, 10 N. H. 272. 
 
 *8 Williams v. Prince, 3 Strob. 490; Reese v. Chilton, 26 Miss. 598 ; 
 Oiuson u. Heritage, 45 Ind. 73 ; s. c, 15 Am. Rep. 258. If the hus- 
 band has expelled the wife for adultery at which he connived, he is 
 liable for her necessaries. Wilson v. Glossop, 20 Q. B. Div. 354. 
 
24 THE DOMESTIC KELATIONS. 
 
 Schouler) she is probably herself liable.*'' But this 
 cannot be unless the husband is out of the State or 
 country.*^ A lunatic husband in an asylum is lia- 
 ble;*^ but one in prison is not. If the wife is in 
 the lunatic asylum the husband is liable ; ^ but not 
 if she is in prison. ^^ If the parties live apart by 
 mutual consent, and the husband regularly pays the 
 wife a reasonable allowance, he is not further liable 
 for necessaries ; ®^ but he must pay regularly ; ^^ and 
 so if he pays decreed alimony, although insuffi- 
 cient;^* and so if he pays an allowance fixed by the 
 wife, although it proves insufficient.^^ If the hus- 
 band keeps up an appearance of cohabitation by 
 occasional visits, he is prima facie liable.®^ In all 
 cases of separation it is incumbent on the claimant 
 to show that it is by consent or the fault of the hus- 
 band.^'^ An infant husband is liable for his wife's 
 necessaries.®^ Mr. Schouler says: "If old' enough to 
 
 " Cox V. Kitchin, 1 B. & P. 339. 
 
 *8 Hayward v. Barker, 52 Vt. 429 ; s. c, 36 Am. Rep. 762. 
 <» Shaw V. Thompson, 16 Pick. 198. 
 
 '» Wray v. Wray, 33 Ala. 187 ; Goodale v. Lawrence, 88 N. Y. 
 513; 42 Am. Kep. 259. 
 
 51 Fowler v. Dinely, 2 Str. 1122. 
 
 52 Dixon u. Harwell, 8 C. & P. 717 ; Mott v. Comstock, 8 Wend. 
 554. 
 
 53 Beale v. Arabin, 36 L. T. (N. S.) 249. 
 
 5» Willson V. Smith, 1 B. & Ad. 801 ; Crittenden v. Schermerhorn, 
 39 Mich. 661 ; 33 Am. Rep. 440. 
 
 55 Eastland v. Burchell, 3 Q. B. D. 432. 
 
 55 Rawlins v. Vandyke, 3 Esp. 250. 
 
 5' Thorue v. Kathan, 51 Vt. 520. For an excellent summary of 
 the doctrine of the husband's liability for necessaries procured by 
 an absent wife, see Johnston v. Sumner, 3 Hurl. & Nor. 261. 
 
 55 Cantine v. Phillips, 5 Hairing. 428. 
 
wipe's agency other than for necessaries. 25 
 
 contract marriage, an infant is presumed old enough 
 to pay for his wife's board and lodging, as well as his 
 own." 
 
 The wife's agency to procure necessaries is al- 
 ways inferred wliere there is marital cohabitation, 
 although there may not be a valid marriage.^^ It 
 has been said that this is so even if the tradesman 
 knew the association to be illicit.^" But this has 
 been doubted.^^ 
 
 ■wipe's agency other than for necessaries. 
 
 The wife may bind the husband by contracts other 
 than for necessaries, upon an express or an implied 
 agency. She may be appointed by him an attorney 
 by a sealed instrument.^^ An implied agency arises 
 where his employment is such that his wife may be 
 expected to share in it, as farmers, victuallers, or 
 small shop-keepers;®^ or. when the husband is absent 
 from home. The wife in the husband's temporary 
 absence has undoubted authority to purchase house- 
 hold necessaries, and may even do, so when he is at 
 home, or bind him in a larger scope if it is such as 
 she has usually acted in with his knowledge and 
 assent. But her authority in business matters is 
 special and limited, and if she exceeds it, her hus- 
 
 ^ Watson V. Threckeld, 2 Esp. 637. 
 
 «» Ibid. 
 
 ^^ Robinson v. Nabon, 1 Camp. 245. 
 
 «' Goodwin v. Kelly, 42 Barb. 194. 
 
 ^^ Webster o. McGinnis, 5 Binn. 2.35; Rotche v. Miles, 2 Conn. 
 6.38. Compare Felker u. Emerson, 16 Vt. 653, with Benjamin v. 
 Benjamin, 15 Conn. 347. 
 
26 THE DOiMESTIC RELATIONS. 
 
 band is not bound.^* Much would depend upon cir- 
 cumstances and the habit of the husband; as for 
 example, the wife of a sailor would have a larger 
 implied authority than the wife of a clergyman. 
 
 husband's liability for wipe's wrongs. 
 
 For all frauds or injuries committed by the 
 wife, before or during coverture, whether to person, 
 property, or character, when made the subject of 
 a civil action, the husband alone is liable to make 
 reparation.^^ 
 
 The husband is not punished for the wife's crimes, 
 unless committed by his express or implied direction. 
 As to crimes which are merely mala prohilita, if 
 they are committed by the wife in the presence or by 
 the command of her husband, she is not responsible. 
 Where he is present she is presumed to act by his 
 coercion.^^ But it must be actual and not merely 
 constructive presence.^^ This presumption however 
 may be rebutted, and she then becomes responsible ; 
 as for example, if she should choke a man while her 
 husband picked his pockets.^** But the wife is always 
 responsible for her heinous crimes of the order of 
 mala in se. 
 
 But the husband is not liable for the wife's frauds 
 or injuries, nor can he derive any benefit from those 
 
 "* Goodrich v. Tracey, 43 Vt. 314 ; 5 Am. Rep. 281 ; Kowing v. 
 Manly, 49 N. Y. 192; 10 Am. Eep. 846. 
 ** Hawk V. Harmon, 5 Binn. 47. 
 «" State V. Cleaves, 59 Me. 298 ; 8 Am. Rep. 422. 
 " Seller v. People, 77 N. Y. 411. 
 ^ People V. Wright, 38 Mich. 744; 31 Am. Rep. 331. 
 
HTJSBAND'3 KEMEDY foe •wrongs to "WIFE. 27 
 
 committed against her, unless there is a marriage in 
 fact. Mere cohabitation will not suffice."^ This is 
 different from the rule as to necessaries. 
 
 If the fraud or injury by the wife is committed in 
 his presence or by his order, he alone is liable, upon 
 the principle of presumed coercion ; otherwise, both 
 are liable, upon the principle of responsibility arising 
 from coverture.™ So in the former case he is sued 
 alone ; in the latter the wife is joined. 
 
 The husband's liability for his wife's wrongs ceases 
 with coverture, and the wife alone remains liable 
 where she was joined and survives the husband."^ 
 
 husband's KEMEDY FOE WEONGS TO WIFE. ' 
 
 For injuries to the wife's person or character, 
 before or after marriage, the husband and wife sue 
 together, at common law.^^ But in an action of 
 damages founded on the prior possession of personal 
 property, the husband sues alone. 
 
 At common law the husband not onlj^ has a' right 
 of action for injuries to his wife's person, but he has 
 a right of action for the loss of her society and his 
 outlay caused thereby, and in the former action there 
 can be no recovery for matters recoverable in the 
 latter ; as for example, in an action for assault on 
 the wife, he cannot recover his outlay for a sur- 
 
 «» Overhalt v. Ellswell, 1 Ashm. 200. 
 
 ™ Angel V. Felton, 8 Johns. 149 ; 2 Kent Com. 149. 
 
 '1 Stroop V. Swartz, 12 S. & R. 70. 
 
 " Smalley v. Anderson, 2 Mour. 56 ; Pillow v. Bushnell, 5 Barb. 
 156 ; Heim v. McCaughan, 32 Miss. 17 ; Cross v. Cuthery, 2 Root, 
 90; Fowler v. Frisbie, 3 Conn. 320. 
 
28 THE DOMESTIC BELATIONS. 
 
 geon's bill, but only for the precise injury to the 
 
 The husband has an action for seduction of his 
 wife, which is treated as one of trespass^* 
 
 Neither husband nor wife can recover at common 
 law for the instantaneous death of the other pro- 
 duced by t,lje negligence of a thiid.'^ This is gen- 
 erally changed by statute. 
 
 73 Dengate v. Gardner, 4 M. & "W. 6. 
 
 "* Hoard v. Peck, 56 Barb. 202, seems an anomalous case. And in 
 State V. Housekeeper, 70 Md. 162, it was held that a husband had no 
 right of action against a surgeon for performing a surgical operation 
 on the wife with her consent. 
 
 '6 Green v. Hudson E. R. Co., 23 Barb. 9. 
 
CHAPTER III. 
 
 THE wife's PBOPERTY, AT COMMON LAW. 
 
 1. Her personal property. The wife at com- 
 mon law got no interest whatever in her husband's 
 personal property, but by the marriage he acquired 
 the absolute ownership and. control of all of hers 
 when once reduced to possession. This extended to 
 her personal property acquired both before and after 
 marriage, and to all her earnings. As to the wife's 
 personalty in possession, his right became absolute 
 instantly upon marriage. This extended to her mov- 
 ables, such as jewels, household goods, cash in. hand, 
 and the like. As to her things in action, or property- 
 requiring some action to realize its full possession or 
 enjoyment, such as, notes, checks, bills, bonds, ac- 
 counts, rents, profits, legacies, and the like, the hus- 
 band's right was qualified, and such things did not 
 vest in him until he reduced them to possession. If 
 he failed to do this in his life, they reverted to his 
 widow. The question, what amounts to a reduction 
 to possession, is much debated, but is perhaps best 
 answered by the expression, "realized." Mere pos- 
 session of the evidences of property will not suffice. 
 There must be a collection or sale of them.^ 
 
 It must be observed that the husband's right ex- 
 
 1 Schoul. Dom. Rel. ch. 5.. 
 
30. THE DOMESTIC KELATIONS. 
 
 tends not to property held by the Avife in trust for 
 others. 
 
 His right is also subject to an important qualifi- 
 cation known as the wife's "equity of settlement." 
 This is thus defined : " If the husband wants the aid 
 of chancery to enable him to get possession of his 
 wife's property, or if fter fortune be within the reach 
 of the court, he must do what is equitable, by making 
 a reasonable provision out of it for the maintenance 
 of her and her children." ^ This equity arises only 
 when the husband has to resort to the aid of the court. 
 If third persons, holding the wife's property, choose to 
 deliver it directly to the husband, she gets no equity.^ 
 The husband cannot evade it by assignment.* The 
 equity expires with the wife,^ and is barred by her 
 adultery.^ She may however waive it.'^ 
 
 [Modern statutes have wrought great changes in 
 the wife's property rights.. Bj- recent statutes of 
 New York, which have been adopted with greater or 
 less modifications in many other States, it is provided 
 that the wife is the absolute owner of all her per- 
 sonal property, whether acquired before or after mar- 
 riage, and to her separate earnings after marriage, 
 free from the interference or control of her husband, 
 and from any liability for his debts, except such as 
 she may contract for the support of herself, or her 
 
 •■' 2 Kent Com. 1.39. 
 
 ' Glaister v. Hewer, 8 Ves. 205. 
 
 * Moore v. Moore, 15 B. Mon. 259. 
 
 ^ Delagarde v. Lempiere, 6 Beav. 344. 
 
 " Barrow v. Barrow, 18 Beav. 529. 
 
 ' Coppedge v. TredglU, 3 Sneed, 577. 
 
THE "wife's property, AT COMMON LAW. 31 
 
 children, as his agent. This includes the right to 
 dispose of her property at her pleasure by gift, sale, 
 grant, or will. If, however, she does not so dispose 
 of it during her life or by will, it goes to the surviv- 
 ing husband and children, or to her relatives.^] 
 
 As to paraphernalia, or the ornaments and wearing 
 apparel of the wife, which she had at marriage, 
 or which come to her from the husband during cov- 
 erture, they are the husband's property, and he may 
 sell or dispose of them during his life, but he cannot 
 bequeath them away ,from her, and if they remain 
 after his death they belong to her.^ He alone can 
 sue for them where he furnished them or they were 
 bought with the joint earnings.^" [Under the New 
 York statute she may sue for such as were given her 
 by her husband; '^ but in the absence of evidence of 
 a gift to her, if he furnished them he must sue for 
 them.i2] 
 
 2. HER REAL ESTATE. 
 
 1. Leases for years, or chattels real. — These the 
 husband may appropriate absolutely, by sale, assign- 
 ment, mortgage, etc. But if he neglects so to 
 appropriate or reduce them to possession, they revert 
 to the wife if she survives him. If he survives her, 
 they vest absolutely in him, like movables, except 
 where the wife was joint-tenant with another, in 
 
 8 Laws 1860, ch. 90; 2 R. S. 96, § 75; Laws 1867, ch. 782, § 79. 
 
 9 Tipping V. Tipping, 1 P. Wms. 730. 
 
 w Plawkins v. Railroad, 119 Mass. 596 ; 20 Am. Rep. 353. 
 " Rawson v. Penn. R. Co., 48 N. Y. 212 ; 8 Am. Rep. 543. 
 J2 Curtis V. Del., etc., R. Co., 74 N. T. 110; 30 Am. Rep. 271. 
 
32 THE DOMESTIC RELATION'S. 
 
 which case the other joint-tenant takes to the exclu 
 sion of the husband. The wife's right of survivor- 
 ship may be defeated : — 
 
 1. By the act of the husband as above. 
 
 2. By his underlease commencing after his death. 
 
 3. By his lease for the lives of himself and' his 
 
 wife. 
 
 4. By disseverance of the joint-tenancy during 
 
 coverture. 
 
 5. By an executed award of the term to the hus- 
 
 band. 
 
 6. By the husband's crime, as by attainder. 
 
 7. By his alienage. 
 
 8. By sale of the chattels on execution by the hus- 
 
 band's creditors. 
 
 2. As to her real estate proper. — By marriage the 
 husband becomes entitled to the- use during cover- 
 ture of all real estate owned by the wife before or 
 coming to her after marriage. He takes all the rents 
 and profits during the joint lives. If living issue is 
 born of the marriage, the husband's interest is ex- 
 tended to his life, whether his wife survives him or 
 not. This is called tenancy by curtesy. The own- 
 ership of the real estate continues in the wife and 
 descends to her heirs, subject to these conditions. 
 For an injury to the profits of the wife's real estate 
 the husband may sue in his own name; as for 
 destruction of crops. But for an injury to the inher- 
 itance, as for waste, the wife must be joined. The 
 husband after the wife's death may collect all arrears 
 of rent accruing during coverture ; not being bound 
 
THE wife's property, AT COMMON LAW. 33 
 
 to reduce them to possession during coverture. 
 Emblements or growing crops go to the husband or 
 his representatives at the termination of his estate. 
 The husband's interest in Iiis wife's real estate can be 
 sold on execution against him for his own debts or 
 those of his wife before marriage. The husband can- 
 not recover for his improvements to her real estate, ^^ 
 
 ' nor can his creditots reach them.^* Alienage de- 
 feated the acquisition, and attainder effected the for- 
 feiture, of this estate by the husband; and the 
 attainder of the wife worked the same result. 
 
 At common law the husband alone had power to 
 bind or alienate the wife's real estate during cover- 
 ture, or during his tenancy by curtesy. Bitt he 
 cotdd'^not encumber it beyond his own term, nor 
 defeat the right of survivorship in the wife or her- 
 heirs. In a word, he could do no act to prejudice his. 
 wife's inheritance. 
 
 The husband is not liable for waste. 
 
 If the real estate is converted into personalty, by 
 
 voluntary act of the parties, the proceeds become- 
 
 personalty, and the husband's right attaches as to> 
 
 other personal property. If it is so converted by- 
 
 • operation of law, the same effect ensues in New 
 York.i5 
 
 An agreement by the wife to sell her real estate is 
 void, but if she joins her husband in a deed or mort- 
 gage, she is bound by the convey an ce.^'' But not by 
 
 18 Campion v. Colton, 17 Yes. 264; Burleigh v. Coffin, 2 Fost. 118. 
 " Lichty V. Hager, 13 Penn. St. 565. 
 
 15 Graham v. Dickinson, 3 Barb. Ch. 170. 
 
 16 2 Kent Com. 187. 
 
 3 
 
34 THE DOMESTIC RELATIONS . 
 
 a warranty in such deed, nor by any of its covenants, 
 although the husband is bound." So she may de- 
 feat the title by subsequently acquiring an adverse 
 interest.18 It may be said generally that the hus- 
 band's interest in his wife's real estate is bounded by 
 her own interest ; as where it is a life estate, or for 
 years, or under a trust, or in joint tenancy with 
 others. 
 
 Lands conveyed or devised to husband and wife 
 jointly, are held in tenancy by entirety, and the sur- 
 vivor takes the whole estate.^^ 
 
 [The modern married women's acts have radically 
 changed the foregoing rules. Now, taking the New 
 York statutes as the example, the wife is the abso- 
 lute owner or her real estate, whether acquired 
 before or after marriage, free from any interference 
 or control of her husband, and from any liability for 
 his debts, except such as she may contract for the 
 support of herself and her children as his agent.^" 
 She may grant, mortgage, lease, sell, or will it, in the 
 same manner as if she were single, and the husband 
 has no interest whatever in it, except that if she dies 
 intestate his tenancy by curtesy attaches as at com- 
 mon law.^^ (This has been denied ;^^ but such seems • 
 the better opinion.^^) The wife however can cut off 
 
 " Ibid. 167 ; Griner v. Butler, 61 Ind. 362 ; 28 Am. Rep. 675. 
 ^' Jackson o. Vanderheyden, 17 Johns. 167. 
 19 Torrey v. Torrey, 14 N. Y. 430. 
 2' Laws 1860, ch. 90. 
 
 21 Matter of Winne, 2 Lans. 21. 
 
 22 Billings V. Baker, 28 Barb. 343. 
 
 25 Burke v. Valentine, 52 Barb. 412 ; Neely b. Lancaster, 47 Ark. 
 175; 58 Am. Rep. 752. 
 
THE wife's PKOPERTY, AT COMMON LA"W. 35 
 
 that right by granting or devising her lands. As to 
 tenancy by the entirety, it has been much debated 
 whether the modern statutes have abolished it, and 
 also whether the estate can be sold on execution 
 against the husband. The weight of authority seems 
 to be that the estate still exists.^] 
 
 Death of the Wife. — On the death of the wifd the 
 husband is entitled to administer on her estate. 
 
 Although, as we have seen, the husband may, after 
 the wife's death, enforce her choses in action not 
 reduced to possession during her life, yet they are 
 subject to her debts.^ 
 
 Under the English statute of distribution, and gen- 
 erally in this country in the absence of statutes, the 
 husband takes the wife's outstanding personal prop- 
 erty, to the exclusion of her children and kin- 
 dred.26 
 
 To tenancy by curtesy four things are requisite, 
 namely: marriage, seisin of the wife during cover- 
 ture, issue born alive, and death of the wife. After 
 such birth, the estate becomes possible, and is then 
 called initiate. After the wife's death it becomes 
 complete, and is called consummate. The estate is in 
 some States abolished.^'' Generally actual seisin of 
 the wife during coverture is necessary, and the hus- 
 band takes no tenancy in the wife's estate in reversion 
 
 21 Hulett V. Mow, 57 Ind. 412; 26 Am. Rep. 64 and note, 65; 
 Bertles v. Nunau, 92 N. Y. 152; 44 Am. Rep. 361; Pray u. Stebbins, 
 141 Mass. 219; 55 Am. Rep. 462; Butler v. Rosenblath, 42 N. J. Eq. 
 651 ; 59 Am. Rep. 52; Baker v. Stewart, 40 Kans. 442; Marburg v. 
 Cole, 49 M(l. 402; 33 Am. Rep. 266. 
 
 25 Heard v. Stamford, 3 P. Wms. 409. 
 
 26 2 Kent Com. 136. ^^ Schoul. Dom. Rel. 164. 
 
36 THE DOMESTIC KELATIONS. 
 
 or remainder unless the particular estate terminates 
 during coverture.^® 
 
 The husband is bound to bury his wife in a suita- 
 ble manner at his own expense, even if she had a 
 separate estate .2" 
 
 Death of the Husband. — At common law the widow 
 had a corresponding right of administration. In some 
 States by statute she has the first right. But this right, 
 and her right to a distributive share in his estate, are 
 lost by divorce for the fault of either.^^* 
 
 At common law she took no interest in the hus- 
 band's personal estate, but this is generally changed 
 by statute. 
 
 The widow is entitled to her paraphernalia, con- 
 sisting of her ornaments and wearing apparel, re- 
 maining to her after her husband's death.^ The 
 husband has the right during his life to appropriate 
 these articles, but unless he does so, they go to the 
 widow on his death. If he has pledged them, she 
 may redeem them on his death, and may recover the 
 redemption money out of his estate next after the 
 chiims of his creditors are satisfied.^^ 
 
 The husband's estate is primarily liable for the 
 expenses of his burial. Whether the widow, if able, 
 is bound to bury him if he leaves no estate, seems 
 doubtful.32 
 
 25 Terguson v. Tweedy, 43 N. Y. 543 ; Johnson v. Jackson, 5 Cow. 74. 
 
 M Smyley v. Keese, 53 Ala. 89; 25 Am. Rep. 598; Darmody's 
 estate, 19 Alb. L. J. 367. 
 
 29* Matter of Ensign, 103 N. Y. 284. 
 
 " Schonl. Dora. Rel. 173. 'i Grahara «. Londonderry, 3 Atk. 393. 
 
 82 Chappie V. Cooper, 13 M. & W. 252; McClellan v. Filson, 44 
 Ohio St. 184; 58 Am. Rep. 814. 
 
THE wipe's property, AT COMMON LAW. 37 
 
 Bower. — This is the right of the widow to the 
 use and enjoyment, for her life, of one-third of ail 
 the real estate in which the husband was seised of 
 an estate of inheritance at any time during the cov- 
 erture. This estate is superior to curtesy, because 
 it is not dependent on the birth of issue ; but inferior, 
 because it extends only to one-third and not to the 
 whole of the rents, income, and profits. 
 
 During the husband's life this estate is called 
 inchoate. It cannot be divested by any act of the 
 husband, nor by his creditors, even if his estate is 
 insolvent, nor is it barred by his bankruptcy .^2* 
 
 It may be barred or lost by the act of the wife in 
 the following ways : — 
 
 1. By jointure, or the conveyance of other lands to 
 
 the wife and accepted by her in lieu. 
 
 2. By her acceptance of a pecuniary provision in 
 
 lieu. This must be such as she can take and 
 enjoy after his death.^ 
 
 3. By her acceptance of a provision of her husband's 
 
 will conditioned to be in lieu. 
 
 4. By her joining in a deed of the lands with her 
 
 husband. 
 
 5. By absolute divorce for her misconduct.^' 
 
 6. By equitable estoppel. 
 
 7. By ante-nuptial agreement.^* 
 
 32* Lazear v. Porter, 87 Penn. St. 513 ; 30 Am. Rep. 380. 
 88 Grain v. Cavana, 36 Barb. 410; 62 id. 60. And is not liable to 
 abatement. Security Co. v. Bryant, 52 Conn. 311 ; 52 Am. Eep. 599. 
 81 Wiseman v. Wiseman, 73 Ind. 113;' 38 Am. Rep. 113. 
 84* Barth v. Lines, 115 111. 374; 59 Am. Rep. 374. 
 
38 THE DOMESTIC RELATIONS. 
 
 Dower does not exist as against a purchase-money 
 mortgage during coverture, nor against a mortgage 
 executed before coverture. 
 
 If the wife joins the husband in a deed to release 
 her dower, and the deed is set aside as fraudulent, 
 her right of dower is not barred.^* 
 
 If the wife to release dower joins in her husband's 
 deed and suffers it to be delivered, she cannot avoid 
 it on the ground of fraud or undue influence on the 
 part of the husband, if the grantee was innocent, 
 and the wife was of sufficient mental capacity, and 
 there was no duress or misrepresentation as to the 
 nature of the instrument.'^^ 
 
 The widow upon the husband's death has quaran- 
 tine, or the right to remain free in the chief house of 
 the husband forty days, and meantime to have a rea- 
 sonable sustenance out of his estate. 
 
 At common law, as the wife's contracts are utterly 
 void, so a widow's promise to pay her debt con- 
 tracted during marriage does not bind her.^'' 
 
 '5 Molloney v. Horan, 49 N. Y. Ill; 10 Am. Rep. 335; Ridgway 
 V. Matting, 2 Ohio St. 294 ; 13 Am. Rep. 251 ; Richardson v. Wymau, 
 62 Me. 280 ; 16 Am. Rep. 459. 
 
 88 White V. Graves, 107 Mass. 325 ; 9 Am. Rep. 38. 
 
 87 Porterfield v. Butler, 47 Miss. 165 ; 12 Am. Rep. 329 ; Musick v. 
 Dodson, 76 Mo. 624; 43 Am. Rep. 780; Meyer v. Haworth, 8 Ad. & 
 Ell. 427. But a written promise by a widow to pay a note given by 
 her during marriage for the benefit of her separate estate is binding. 
 Hubbard v. Bngbee, 55 Vt. 506 ; 45 Am. Rep. 637. Same principle, 
 Sherwin !'. Sanders, 59 Vt. 499; 59 Am. Rep. 750; Goulding v. 
 Davidson, 26 N. Y. 604. 
 
CHAPTER IV. 
 
 THE wipe's separate ESTATE, IN EQUITY, AND 
 UNDER THE MODERN STATUTES. 
 
 Thus far the wife's property has been considered 
 mainly as affected by the common law. A very dif- 
 ferent rule has long prevailed in equity, out of which 
 sprang the recent statutes which in many States have 
 given the married woman an independent and equal 
 position in respect to her pecuniary rights. 
 
 The principle of the equity courts was this: the 
 wife will be protected in the ownership of her prop- 
 erty, whether acquired by contract with her husband 
 before marriage, or by gift from him or a stranger 
 independently of such contract, if duly set apart as 
 her separate estate, even if it must be effected 
 through the agency of her husband as trustee. It is 
 essential that this intent shall be manifested by apt 
 words, indicating the intention to invest her with 
 the sole and separate use and enjoyment, or clearly 
 excluding the husband from any dominion in ov 
 interest over it.' 
 
 The quality of separate estate ceases with the 
 wife's life, and if the husband survives her he be- 
 comes entitled to the property as if it had never 
 been settled to her separate use,^ unless the terms of 
 
 1 Schouk Dom. Rel. 189. 
 
 2 Maloney v. Kennedy, 10 Sim. 254. 
 
40 THE DOMESTIC EELATIONS. 
 
 the settlement expressly provide against it. The 
 separate property upon her death is freed from its 
 peculiar incidents, and becomes like any other prop- 
 erty of hers remaining on her decease.^ The hus- 
 band's tenancy by curtesy will attach unless ex- 
 pressly prohibited.* 
 
 But the wife may defeat the attaching of the hus- 
 band's title after death by exercising her power of 
 disposition during her life.^ She can deal with her 
 separate estate like a single woman unless expressly 
 prohibited by the instrument of settlement. 
 
 In England the husband's marital obligations are 
 not changed by the separate settlement. The wife is 
 not bound to maintain the husband nor contribute to 
 the family support out of her separate property.® 
 Even if she elopes her separate property will not be 
 charged for the maintenance and education of her 
 children.^ But after the wife's death her separate 
 estate is a trust for the payment of her debts.^ In 
 English settlements it is usual to provide against an- 
 ticipation of the income or infringement upon the 
 capital, and this is regarded as a salutary device "to 
 prevent the wife from bringing ruin upon herself." 
 This provision is imperative before marriage or dur- 
 ing widowhood. 
 
 ' Sloper V. Cottrell, 6 Ell. & El. 501. 
 
 ^Lushington v. Sewell, 1 Sim. 548; Carter v. Dale, 3 Sea, 710; 
 31 Am. Rep. 660. 
 
 6 Schoul. Dom. Eel. 194; 20 Alb. L. J. 244. 
 ^ Lumb V. Milnes, 5 Ves. 520. 
 ' Hogden v. Hogden, 4 CI. & Fin. 323. 
 s Norton v. Turrill, 2 P. "Wms. 144. 
 
THE wife's separate ESTATE. 41 
 
 The doctrine of separate use was adopted at an 
 early day in this country, mainly through the instru- 
 mentality of the New York chancellors, Kent and 
 "Walworth. The doctrine prevailed in New York, 
 New Jersey, Pennsylvania, Maryland, Virginia, and 
 most of the Southern States, and in Kentucky and 
 Tennessee, but not in the New England and Western 
 States. The power of the wife to deal with her sep- 
 arate property as if unmarried, unless restricted by 
 the deed of settlement, was recognized.^ 
 
 About 1848 a revolution began as to the property 
 rights of married women, and before 1850 Mississippi, 
 New York, New Hampshire, Maine, Vermont, Ten- 
 nessee, Kentucky, and Michigan had passed important 
 modifying laws, and gradually th^ march of legislative 
 amelioration has extended to nearly every other State. 
 It is not necessary nor useful here to review these 
 various changes in detail, especially as the laws differ 
 quite essentially ; but as New York was one of the 
 earliest, and has been perhaps the most radical in 
 this reform, it will be sufficient and useful to note 
 the present state of the law there, and cursorily refer 
 to the decisions under it and similar laws in other 
 States. The New York law of 1848 was amended 
 in 1849 ; there was an act of corresponding relief for 
 the husband in 1853 ; and finally, in 1860, 1862, 1884, 
 and 1887, the revolution was completed, so that, as 
 Mr. Schouler observes, " married women in that State 
 are well nigh emancipated altogether from marital re- 
 straints, so far as concerns their property, while the 
 husband's own rights are exceedingly precarious." 
 9 Jacques v. M. E. Church, 17 Johns. 548. 
 
42 THE DOMESTIC KELATIONS. 
 
 , The substance of these provisions is as follows : — 
 1. The property, both real and personal, which 
 any married woman now owns as her sole and sepa- 
 rate property; that which comes to her by descent, 
 devise, bequest, gift, or grant ; that which she acquires 
 by trade, labor, business, or services, carried on or 
 performed on her sole and separate account; that 
 which a woman married there owns at the time of 
 her marriage, and the rents, issues and proceeds of 
 all such property, shall be her sole and separate prop- 
 ert}', and may be used, collected, and invested by her 
 in her own name, and shall not be subject to the in- 
 terference or control of her husband, or liable for his 
 debts, except such as may have been contracted by 
 her as his- agent for the support of herself and her 
 children. 2. She may bargain, sell, assign and 
 transfer her personal property, and carry on any 
 trade or business, and perform any labor or services 
 on her sole or separate account, -and her .earnings 
 therefrom shall be her sole and separate property, 
 and may be used or invested by her in her own name. 
 3. She may bargain, sell and convey her real estate, 
 and contract with reference to the same as if unmar- 
 ried, and she may bind her separate real estate by 
 her covenant. 4. She may sue and be sued like an 
 unmarried woman in all matters relating to her sep- 
 arate property; she may sue in her own name for 
 damages, or for any injury to her person or character, 
 and the recovery shall be her sole property ; and in 
 all such actions she may execute any necessary bond 
 or undertaking as if unmarried, and the same shall 
 
wife's dominion ovbe her separate estate. 43 
 
 bind her separate estate. 5. No bargain or contract 
 made by her respecting her separate property or busi- 
 ness shall bind her husband, unless it relates to prop- 
 erty given or granted her by him. 6. In any such 
 action the husband shall not be liable for costs or 
 damages, and a judgment against her shall be en- 
 forced out of her separate property. 7. No husband 
 shall bind his child to apprenticeship, or part with 
 its control, or create a gtiardian for it by will, with- 
 out the written assent of the mother if living. 8. 
 The husband shall not be liable for his wife's ante- 
 nuptial debts except to the amount of her separate 
 property acquired by him. 
 
 In 1884 a law was passed enabling the wife to 
 contract, except with her husband, as if unmarried. 
 In 1887 a law was passed enabling husband and wife 
 to deed directly to each other. 
 
 These acts have not relieved the husband from his 
 common-law liability for his wife's torts.^" But where 
 husband and wife live upon the wife's separate real 
 estate, the husband, in absence of proof of his per- 
 sonal neglect, is not liable to a third person for an in- 
 jury occasioned by the condition of that property.^^ 
 
 wife's dominion over her separate estate. 
 
 1. In equity. — As has been said in general terms, 
 the wife's dominion over her separate estate in 
 
 10 Tait o. Culbertson, 57 Barb. 9 ; Fitzgerald v. Quann, 109 N. Y. 
 441; Mangam v. Peck, 111 N. Y. 401; Dohorty v. Madgett, 58 Vt. 
 323. Contra : Norris v. Corkhill, 32 Kans. 409 ; 49 Am. Rep. 489. 
 
 n Eowe v. Smith, 45 N. Y. 230; Fiske v. Bailey, 51 id. 151. 
 
44 THE DOMESTIC EELATIONS. 
 
 equity was absolute, in respect to the disposal both 
 of the principal and the income, unless she was re- 
 stricted by the terms of the settlement. This was 
 the earliest English doctrine, from which the courts 
 swerved for a while, but to which they have of late 
 returned. ^^ The restrictive intent must have been 
 clearly expressed to be effectual. ^^ So the wife might 
 contract with reference to her separate property as 
 if unmarried. This was at one time denied in Eng- 
 land,i* but at length it was admitted that she might 
 charge her separate estate by an instrument under 
 seal;i'^ next it was conceded that she might do so 
 by any written instrument, such as her note and 
 the like ; and finally it is now admitted in England 
 that she may even charge it by her oral engage- 
 ment.^^ The engagement need not even expressly 
 charge her estate, but the law will imply the 
 charge.^^ The wife may even so charge her estate 
 for the debt of her husband or another, and even 
 for necessaries.^^ A very recent case thus states the 
 law : " If a married woman, having separate prop- 
 erty, enters into a pecuniary engagement, whether 
 by ordering goods or otherwise, which, if she were a 
 
 " 20 Alb. L. J. 244, 264. 
 
 IS Rich V. Cookell, 9 Ves. 369. 
 
 11 Vaughau v. Vanderstegeu, 2 Drew. 180; Newcomer v. Hazzard, 
 4 Ir. Ch. 274. 
 
 IS Hulme V. Tenant, 1 Br. C. C. 16. 
 
 18 Murray v. Barker, 3 M. & K. 210; 4 Sim. 82. 
 
 " Owens V. Dickenson, Craig & P. 48; Johnson v. Gallagher, 3 
 DeG. F. & J. 494. 
 
 18 Clerk V. Lanuice, 2 H. & N. 199; Priest v. Cone, 51 Vt. 495; 
 31 Am. Rep. 695. 
 
wife's dominion over her separate estate. 45 
 
 feme sole, would constitute her a debtor, and in en- 
 tering into such engagement she purports to contract 
 not for her husband, but for herself, and on the credit 
 of her separate estate, and it was so intended by her, 
 and so understood by the person with whom she is 
 contracting, that constitutes an obligation for which 
 llie person with whom she contracts has the right to 
 make her separate estate liable ; and the question 
 whether the obligation was contracted in this manner 
 must depend upon the facts and. circumstances of 
 each particular case.''^^ 
 
 The American doctrine in equity is much the 
 same, except as to engagements as surety for the 
 husband or others.^" 
 
 2. Under the modern statutes. — This has been very 
 much discussed and variously decided in tliis coun- 
 try. The leading case holds that there must be an 
 express charge or appointment in the contract creat- 
 ing the debt, or the debt must be for the benefit of 
 the separate estate.^^ This is now the law of New 
 York, but this doctrine has. been reluctantly acqui- 
 esced in there, and severely criticised and expressly 
 repudiated in some other States.^ The best state- 
 ment of the prevailing rule in New York is the fol- 
 lowing. The contract of a married woman may be 
 
 1' Matthewson's case, L. R. 3 Eq. 787 ; see, also, 20 Alb. L. J. 244, 
 264. 
 
 2» 20 Alb. L. J. 244, 264; Elliott v. Gower, 12 E. I. 79; 34 Am. 
 Rep. 600. 
 
 21 Yale V. Dederer, 18 N. Y. 265 ; 22 id. 451 ; 68 id. 335. 
 
 22 20 Alb. L. J. 264 ; "Williams v. Urmston, 35 Ohio pt. 296 ; 35 
 Am. Eep. 611 ; Pelzer v. Campbell, 15 S. C. 581 ; 40 Am. Rep. 705. 
 
46 THE DOMESTIC KELATIONS. 
 
 enforced against her separate property, " 1st. When 
 created in or about carrying on a trade or business 
 of the wife. 2d. When the contract relates to or 
 is made for the benefit of the separate estate. 3d. 
 When the intention to charge the separate estate is 
 expressed in the instrument or contract by which the 
 liability is created." ^^ 
 
 When the engagement is as surety for another, 
 the charge need not be by way of mortgage or other 
 instrument creating a specific lien, but, as on the 
 indorsement of a promissory note, is sufficiently 
 effected by the use of words indicating the inten- 
 tion.2* It heed not be evidenced by writing.^^ But 
 where the contract is in writing the charge must be 
 contained in it. And it is not necessarj' that whether 
 written or oral there should be a specific agreement 
 to charge the separate estate, but the intent may be 
 inferred from the circumstances.'-'^ 
 
 It is not material, where the purpose of the con- 
 tract was to benefit the separate estate, that actual 
 benefit should accrue. .So the wife is liable for the 
 fees of an attorney employed by her husband, when 
 authorized by her to collect rents belonging to her 
 separate estate, although his services were unavail- 
 ing.27 But the beneficial purpose must exist. So 
 the wife is 'not liable to paj' for the wedding supper 
 of her daughter, although she ordered it, and after- 
 
 23 Manhattan B. & M. Co. v. Thompson, 58 N. Y. 80. 
 
 2* Corn Ex. Bk. v. Babcock, 42 N. Y. 613 ; 1 Am. Eep. 601. 
 
 "^ Maxon v. Scott, 55 N. Y. 247. 
 
 26 Conlin v. Cantrell, 64 N. Y. 217. 
 
 2' Owen V. Cawley, 36 N. Y 600. 
 
DEALINGS DIRECT BETWEEN HUSBAND AND WIFE. 47 
 
 wards promised to pay for it.^^ Nor is she liable 
 upon a lease, executed by herself and lier husband, 
 of a house used as a home for herself and the family, 
 unless she therein expressly, charges her separate es- 
 tate.^^ She is liable to an action of specific perform- 
 ance of her contract to buy land.^** Her land is 
 liable to a mechanic's lien for a house built on it 
 with her knowledge and silent assent, without any 
 express contract.^' When she accepts a deed of 
 land, expressly providing that she is to pay an ex- 
 isting mortgage on the land, she is personally liable 
 for its payment, and so she is bound by accepting a 
 deed reserving a lien for the purchase-money.^^ A 
 dedication of a street may be presumed as appurte- 
 nant to her deed.32* 
 
 DEALINGS DIRECT BETWEEN HUSBAND AND WIFE. 
 
 The married woman's acts have not removed the 
 disability of husband and wife to contract directly 
 with each other. Now, as formerly, a deed direct 
 from the wife to the husband is void at lavv.^^ But 
 now, as former]}', a deed direct from husband to 
 
 23 White V. Story, 43 Barb. 124. 
 29 Eustaphieve v. Ketclium, 6 Hun, 621. 
 
 w Hinckley v. Smith, 51 N. Y. 21 ; Flannery v. Eohrmayer, 46 
 Conn. 558 ; 33 Am. Eep. 36. 
 
 81 Husted V. Mathers, 77 N. Y. 388. 
 
 82 Cashmau u. Henry, 75 N. Y. 103; 31 Am. Rep. 437; Jackson v. 
 Eutledge, 3 Sea. 626 ; 31 Am. Rep. 655 ; Brewer v. Maurer, 38 Ohio 
 St. 543. 
 
 32* Cityof Indianapolis U.Kingsbury, 101 Ind. 200; 51 Am. Rep. 749. 
 88 White V. Wager, 25 N. Y. 328; Winans v. Peebles, 32 id. 423. 
 
48 THE DOMESTIC EELATIONB. 
 
 wife will be supported if there is any equitable 
 reason for it.^* But an executed sale of personal 
 property by husband to wife is valid.^* 
 
 Either husband or wife may act as agent the one 
 for the other.^5 The agency need not be created in 
 writing. And where the wife so employs the hus- 
 band, she may support him out of her business and 
 estate, in spite of his creditors.^^ The husband cannot 
 sue his wife for services.^'' The wife may maintain 
 partition against liim;^^ or any equitable action;^® 
 and an aetion against her husband's firm for services.*" 
 She may also maintain ejectment against him, but not 
 so as to prevent his right of occupancy with her.*i 
 She may maintain an action against him on a note 
 executed by him to her for value during marriage.^ 
 But no action for a personal tort, as assault.*^* 
 
 M Hunt V. Johnson, 44 N. Y. 27; 4 Am. Eep. 631; Warlick v. 
 "White, 86 N. C. 139; 41 Am. Rep. 453; Thompson u. Allen, 103 
 Penn. St. 104; 49 Am. Rep. 116; Furron u. Attrey, 21 Neb. 621; 
 59 Am. Rep. 867. 
 
 8** Leavitt v. Jones, 54 Vt. 423 ; 41 Am. Rep. 849. 
 
 85 Abbey v. Deyo, 44 N. Y. 343; Goodwin v. Kelly, 42 Barb. 194. 
 
 '5 Buckley v. Wells, 33 N. Y. 518. But where she employs him 
 on a salary, his creditors may attach it. Kingman v. Frank, 33 
 Hun, 471. 
 
 8' Perkins v. Perkins, 62 Barb. 531. 
 
 38 Moore v. Moore, 47 N. Y. 467. 
 
 8' Minier v. Minier, 4 Lans. 421. 
 
 *^ Adams r. Curtis, 4 Lans. 164. 
 
 ^1 Manning v. Manning, 79 N. C. 293 ; 28 Am. Rep. 344. 
 
 12 May V. May, 9 Neb. 16; 31 Am. Rep. 399; Hall v. Hall, 52 
 Tex. 294 ; 36 Am. Rep. 725 ; McCampbell v. McCampbell, 2 Lea, 661 ; 
 31 Am. Rep. 623. 
 
 12' Schnltz V. Schultz, 89 N. Y. 644 The husband is not indict- 
 able for libelling his wife. State v. Edens, 95 N. C. 696; 59 Am. 
 Kep. 294. 
 
■wife's separate business and eaenings. 49 
 
 The wife cannot carry on a partnership with her 
 husband .^3 
 
 As to the husband's agency, the general rules of 
 agency apply.*'''* The wife is bound by her husband's 
 act when expressly authorized or ratified by her, and 
 when she knowingly accepts the benefit.** But she 
 is not liable for improvements made on her property 
 under contract with her husband, in the absence of 
 fraud on her part.*^ She may also employ her hus- 
 band as contractor.*^ Where she accepts the fruits 
 of a contract made by him as her agent, she is liable 
 in damages for his deceit therein.*^ If she suffers 
 her husband for a long time without objection to 
 receive and appropriate to his own or their joint 
 use the income of her separate estate, she cannot 
 compel him to account for it.*^ 
 
 wife's separate business and earnings. 
 
 The wife maj'' contract debts to commence as well 
 as to carry on business.*^ She may carry on business. 
 
 4' Kaufman v. Schoepel, 37 Hun, 140; Haas v. Shaw, 91 Ind. 384;; 
 46 Am. Eep. 607 ; Bowker u. Bradford, 140 Mass. 521 ; Gwynn v. 
 Gwynn, 27 S. C. 525. Contra : Graff v. Kinney, 37 Hun, 405. 
 
 43* Hamilton v. Hooper, 46 Iowa, 515; 26 Am. Eep. 161 ; Nash v. 
 Mitchell, 71 N. Y. 199 ; 27 Am. Rep. 38. 
 
 « Fairbanks v. Mothersell, 60 Barb. 406 ; Grares w. 'Shier, 58 id. 349. 
 
 45 Ainslie a. Mead, 3 Lans. 116; Lauer v. Bandow, 43 Wis. 556; 
 28 Am. Eep. 571. 
 
 48 Ibid. 
 
 « Ibid. 
 
 48 Lyon V. Ey. Co., 42 Wis. 538 ; McLnre v. Lancaster, 24 S. C. 
 273 ; 58 Am. Eep. 259 ; Warwick v. Lawrence, 43 N. J. Eq. 179. 
 
 49 Frecking v. Holland, 53 N. Y. 422. 
 
 i 
 
50 THE DOMESTIC EELATIONS. 
 
 without a separate estate;™ but if she has a separate 
 estate but no business she cannot make her sepa- 
 rate estate liable for the price of goods except by ex- 
 press charge.^i If she has neither estate nor business 
 she cannot make herself personally liable.^^ jf her 
 business is carried on with her husband she cannot 
 claim the proceeds.®^ To enable the wife to claim 
 her separate earnings there must be an election on 
 her part to do so, and in the absence of such an 
 election, or of circumstances showing her intention 
 to avail herself of her privilege, the husband's com- 
 mon-law right remains.^ If the wife carries on an 
 unlawful business with his knowledge, he is still 
 liable for the misdemeanor.^s xhe wife is not lia- 
 ble during marriage to indictment for a nuisance 
 erected by her husband on her land.^^ She is how- 
 ever civilly liable for the negligence of her servant 
 in her business.^' If on her sale of her business she 
 covenants not to carry on the same business again, 
 
 50 Foster v. Conger, 61 Barb. 145. 
 
 61 Shorter v. Nelson, 4 Lans. 114; Wier u. Groat, 6 T. & C. 444; 
 Flynn v. Messenger, 28 Minn. 208; 41 Am. Eep. 279; Tyemyer v. 
 Turnquist, 85 N. Y. 516 ; 39 Am. Eep. 674. And see Kronskop v. 
 Shontz, 51 Wis. 204 ; 37 Am. Eep. 817. 
 
 62 Eobinson v. Eivers, 9 Abb. (N. S.) 144. 
 -*= Boyle's Est., 1 Tuck. 4. 
 
 M Birkbeck v. Ackroyd, 74 N. Y. 356 ; 30 Am. Eep. 304. 
 ■65 Comrs. of Excise v. Keller, 20 How. Pr. 280. 
 '68 People 11. Townsend, 3 Hill, 479. And the husband, acting as 
 ■the wife's agent, is not indictable for a nuisance on her land. People 
 •V. Crounse, 51 Hun, 489. 
 
 5' Gillies V. Lent, 2 Abb. Pr. (N. S.) 455. And for injury by her 
 own negligence in respect to her separate property, as by her cattle 
 straying. Eowe v. Smith, 45 N. Y. 230. Even when the husband is 
 trustee. Merrill v. City of St. Louis, 82 Mo. 244; 53 Am. Eep. 576. 
 
ESTOPPEL. 51 
 
 she is bound thereby ."^ She may recover for services 
 rendered in the family to a third person and to be 
 paid for by him, in pursuance of an agreement with 
 the husband ; and even at equity the widow is en- 
 titled, as against devisees and distributees of her 
 deceased husband, to money earned by her in a sepa- 
 rate business during the marriage, on his agreement 
 that it was to be hers, although he fraudulently 
 reduced it to his own possession.^' 
 
 Crops raised by the wife's money and animals on 
 land leased by the husband are his, and liable for 
 his debts ; ^ but otherwise as to crops raised by his 
 labor on her land.^^ 
 
 ESTOPPEL. 
 
 A married woman suing and managing her sepa- 
 rate property is subject to the same equitable estop- 
 pels as other persons.^^ But the general rule seems 
 to be that a married woman is not estopped in 
 matters of contract except by her tort or fraud.^^ 
 If she borrows money avowedly for the benefit of 
 
 68 Morgan v. Perhamus, 36 Ohio St. 517 ; 38 Am. ;^ep. 607. 
 
 '' Mason v. Dunbar, 43 Mich. 407 ; 38 Am. Kep. 201 ; Eeynolds v. 
 Robinson, 64 N. Y. 589; Jones v. Eeid, 12 W. Va. 350; 29 Am. Eep. 
 455. Contra: Bailey v. Gardner, 31 W. Va. 94. But she cannot re- 
 cover unless they are to be paid for by the third person. Coleman v. 
 Burr, 93 N. Y. 17 ; 45 Am. Rep. 160. 
 
 6" Hamilton v. Booth, 55 Miss. 60 ; 30 Am. Rep. 500. 
 
 61 Dayton v. Walsh, 47 Wis. 43 ; 32 Am. Rep. 757. 
 
 62 Anderson v. Mather, 44 N. Y. 249 ; Taddikin v. Cantrell, 69 id. 
 597 ; 5 Am. Rep. 253. 
 
 63 Note to Shivers v. Simmons, 28 Am. Rep. 374 ; Boyd v. Turpin, 
 94 N. C. 137; 55 Am. Rep. 597; Patterson v. Lawrence, 90 HI. 174; 
 32 Am. Rep. 22. 
 
62 THE DOMESTIC EELATIONS. 
 
 a separate estate which she really possesses, her 
 estate is liable for it although the money was not 
 so applied.^* Prior assent, advice, or authoiization 
 by a wife, or passive acquiescence at the time, does 
 not make her liable for her husband's tort in which 
 she does not participate as an actor, and by which 
 neither she nor her estate is benefited.® But a wife 
 who on ceasing to do business permits her husband 
 to continue it on her credit may be held as if she 
 still had a separate business.^® And the husband 
 cannot carry on business in the name and for the 
 benefit of the wife, partly on her credit and by her 
 means, so as to exempt the property from liability 
 for his debts.^^ A woman living under her maiden 
 name, under a void decree of divorce, and acting and 
 representing herself as a single woman, is bound by 
 her acknowledgment of a deed as a single woman.^^ 
 A married woman is bound by her engagement as 
 surety, if she represented that it was for her own 
 benefit."^ She is estopped by her representation that 
 she is a partner.™ Even when tjae firm is represented 
 to consist of her husband and herself.''^ 
 
 «4 McVey v. Cantrell, 70 N. Y. 295 ; 26 Am. Eep. 605. 
 66 Vanneman v. Powers, 56 N. Y. 39. 
 
 66 Bodine v. KiUeen, 53 N. Y. 93. 
 
 67 Wilder v. Abernethy, 54 Ala. 644 ; 25 Am. Eep. 734. 
 
 68 Reis V. Lawrence, 63 Cal. 129 ; 49 Am. Kep. 83 ; Hand v. Hand, 
 68 Cal. 135 ; 58 Am. Eep. 5. 
 
 69 Rogers V. Union Cent. Ins. Co., Ill Ind. 343; 60 Am. Rep. 
 701. 
 
 ™ Le Grand v. Eufala Nat. Bank, 81 Ala. 123 ; 60 Am. Eep. 
 140. 
 
 '1 Noel V. Kinney, 106 N. Y. 74 ; 60 Am. Rep. 423. 
 
OTHER CONTRACTS OP "WIFE. 53 
 OTHER CONTRACTS OP WIPE. 
 
 The wife is not liable on her own contract for 
 family necessaries unless she agrees so to be, but she 
 may bind herself for them even orally and even if 
 she has no estate. She is bound by her contract 
 in compromise of a claim upon an estate in which 
 she is interested.'^ But she is not liable on her in- 
 dorsement for a debt of a corporation in which she 
 is a stockholder ; ^^ nor on her mere subscription 
 to capital stock.'* Nor 'by her note, under a statute 
 merely authorizing her to take, hold, and convey 
 property .''^ Nor by her confession of judgment.''^ 
 
 " Husband v. Epling, 81 El. 172 ; 25 Am. Eep. 273. 
 '» RusseU V. People's Sav. Bk., 39 Mich. 671 ; 33 Am. Eep. 444. 
 7* Rice V. Railroad Co., 32 Ohio St. 380 ; 30 Am. Rep. 610. 
 " Stockton V. Farsey, 10 W. Va. 171 ; 27 Am. Rep. 566. 
 " Watkins v. Abrahams, 24 N. Y. 72. But see N. Y. Laws of 
 1884, ch. 381. 
 
CHAPTER V. 
 
 WILLS, SETTLEMENTS, AND GIFTS. 
 
 At common law a married woman could not make 
 a valid will. Marriage revoked her will already 
 made,^ and widowhood did not restore it. But her 
 will may be rendered valid by ante-nuptial agree- 
 ment to that effect.!* Marriage did not revoke the 
 husband's will previously made, but marriage and 
 the birth of a child had that effect.^ But the wife 
 could make a valid will of personalty with the assent 
 of the husba,nd. And she might dispose of her per- 
 sonal property separately settled upon her by will,' 
 unless the settlement denied that power. And so, 
 though long doubted, she might devise her separate 
 real estate.* So she might make a will when. her 
 husband was civilly dead. Property acquired by her 
 after marriage did not pass by will during marriage.^ 
 
 Under the modern married woman's acts the wife's 
 will made before marriage is not revoked by mar- 
 riage,^* and she may generally make a will as if un- 
 
 • In re Carey, 40 Vt. 236 ; 24 Am. Rep. 133. 
 1* Osgood V. Bliss, 141 Mass. 474 ; 55 Am. Rep. 488. 
 2 Note to Negus ;;. Negus, 26 Am. Rep. 159. 
 ^ Fettiplace v. Gorges, 1 Ves. Jr. 46. 
 « Taylor v. Mead, 10 Jur. (N. S.) 127. 
 5 Scammell v. Wilkinson, 2 East, 556. 
 
 ^ Webb V. Jones, 9 Stew. (36 N. J. Eq.) 163; Fellows v. Allen, 60 
 N. H. 439 ; 49 Am. Rep. 328. Contra : Brown v. Clark, 77 N. Y. 369. 
 
ANTE-NUPTIAL SETTLEMENTS. 65 
 
 married. It has been held that this does not author- 
 ize a deed to the husband in contemplation of death, 
 where the statute empowers her to devise and convey 
 as if unmarried, but does not remove the common- 
 law disability to take land from him.^ But the wife, 
 certainly'- can make a will in favor of her husband, 
 and such will is no longer revoked by implication by 
 her second marriage.^ And so where she has power 
 to make a will as if singleJ* She may even devise to 
 her husband on condition of his not marrying again.'t 
 And her will is not affected by the subsequent birth 
 of issued* 
 
 ANTE-NUPTIAL SETTLEMENTS. 
 
 These are much less in vogue in this country than 
 in England. 
 
 A settlement of property by the prospective hus- 
 band upon the prospective wife, in consideration of 
 her engagement to marry him, is valid.^ 
 
 Such a settlement is valid as against the husband's 
 creditors, even if fraudulent on his part, if the 
 woman was innocent.® If the husband is indebted,, 
 to the woman's knowledge, a settlement not grossly 
 out of proportion to his station and circumstances 
 
 6 White V. "Wager, 25 N. Y. 328. 
 
 ' In re TuUer, 79 111. 99; 22 Am. Hep. 164. 
 
 '* Noyeg v. Southworth, 55 Mich. 173; 55 Am. Eep. 359. 
 
 '+ BoBtick V. Blades, 59 Md. 231 ; 43 Am. Eep. 548. 
 
 't Cotheal v. Cotheal, 40 N. Y. 405. 
 
 8 2 Kent Com. 165. 
 
 9 Whelan v. Whelan, 3 Cow. 537 ; Nat. Ex. Bk. v. Watson, 13 E. I. 
 78 : 40 Am. Eep. 623 ; Otis v. Spencer, 102 111. 622 ; 40 Am. Eep. 617. 
 
56 THE DOMESTIC RELATIONS. 
 
 is valid.'" But otherwise if fraudulent on both 
 sides ; ^^ and so, if there was fraud on the grantor's 
 part, and the woman knew he conveyed his entire 
 estate.^ 
 
 A voluntary conveyance, not expressly in con- 
 sideration of, but forming an inducement to and fol- 
 lowed by marriage, is valid as against creditors of 
 the grantor if not actually fraudulent.'^ 
 
 A secret and fraudulent conveyance by a woman, 
 in contemplation of marriage, to third persons, may 
 be avoided by the husband.'* The same is true of 
 conveyances fraudulently made or procured by the 
 intended husband with design to cut off the wife's 
 dower.'^ But if the husband marry with notice of 
 such settlement by the wife, he is remediless.'^ And 
 the intended husband may make such convej'ance to 
 provide for children by a former marriage, although 
 secretly."** 
 
 An ante-nuptial agreement that if the wife would 
 take a farm on which she held a mortgage, and the 
 husband would carry it on, she would contribute the 
 products to the support of herself and the family, 
 
 1" Campion v. Cotton, 17 Ves. 272. 
 
 11 Columbine v. Penhall, 1 Sm. & Gift. 228. 
 
 12 McGowan v. Hitt, 16 S. C. 602 ; 92 Am. Rep. 650. 
 1' "Whelan v. Whelan, 3 Cow. 537. 
 
 1* England v. Dowes, 2 Beav. 522; 2 Kent Com.' 174; Green v. 
 Green, 34 Kans, 740; 55 Am. Rep. 256. 
 
 15 Pierce v. Pierce, 71 N. Y. 154; 27 Am. Rep. 22; Butler v. 
 Butler, 21 Kans. 521 ; 30 Am. Rep. 441 ; Jones v. Roberts, 65 Me. 
 273 ; Hamilton v. Smith, 57 Iowa, 15 ; 42 Am. Rep. 39. 
 
 18 Cheshire v. Payne, 16 B. Mon. 618. 
 
 1^ Champlin v. Champlin, R. I. 39 Alb. L. Jour. 321. 
 
POST-NUPTIAL SETTLEMENTS. 67 
 
 having been carried out two years, and the husband 
 having made valuable improvements at his own ex- 
 pense, will be specifically enforced as against the 
 wife and her grantee with notice.^^ 
 
 An ante-nuptial settlement is not avoided merely 
 by the wife's subsequent adultery, but a divorce on 
 account thereof annuls such settlement.^^ 
 
 The usual form of such settlements is a deed or the 
 like ; but the husband's note, in consideration of the 
 marriage promise afterward fulfilled, is binding.^^ 
 
 Where such settlement is by a formal instrument, 
 it is strictly construed, and the wife's rights and 
 powers thereunder are bounded by its exact terms.* 
 
 Where an affianced woman executed her will be- 
 fore marriage, with the oral consent of her intended 
 husband, it was held valid as an ante-nuptial settle- 
 ment, although revoked as a will by force of the 
 statute.^ 
 
 POST-NUPTIAL SETTLEMENTS. 
 
 These are simple gifts of lands or chattels from 
 husband to wife, executed through a third person. 
 They are valid as between the parties, but under 
 some circumstances may be avoided by third persons, 
 such as purchasers and creditors. 
 
 A reasonable voluntary deed from husband to wife 
 
 " Stratton v. Stratton, 58 N. H. 473 ; 42 Am. Hep. 604. 
 
 18 Charrand v. Charrand, 1 N. Y. Leg. Obs. 134. 
 
 19 Wriglit V. Wright, 54 N. Y. 437. 
 
 20 Bank of Greensboro v. Chambers, 30 Gratt. 202. 
 
 21 Lant's Appeal, 95 Penn. St. 279 ; 40 Am. Rejj. 646. 
 
58 THE DOMESTIC BELATIONS. 
 
 is valid as against his heirs ; certainly when they are 
 not dependent on him for support.^ 
 
 A settlement after marriage, in pursuance of a 
 valid ante-nuptial agreement in writing, is good even 
 as against existing creditors of the grantor; but 
 otherwise if the agreement was not written.^^ 
 
 A voluntary conveyance by husband to wife, if the 
 husband was not indebted at the time, is valid as 
 against subsequent creditors.^* Even if it conveyed 
 all his land and a large proportion of his personalty.^* 
 But even then, if the grantor remains in possession, 
 and the transfer is made with a view to procuring 
 future credit on the strength of the apparent owner- 
 ship, and to a possible failure, it will be void even as 
 against subsequent creditors. ^^ 
 
 But a voluntary convej'ance by husband to wife is 
 valid even as against existing creditors, if the grantor 
 reserves an ample fund for their paymeut.^^ 
 
 As to existing creditors of the husband, his volun- 
 tary convej'ance is presumptively fraudulent, but the 
 presumption may be rebutted.^' As to subsequent 
 
 22 Majors v. Everton, 89 HI. 56 ; 31 Am. Eep. 651 ; Horder v. 
 Horder, 23 Kans. 391 ; 33 Am. Rep. 167. As to an attempted evasion 
 of an ante-nuptial settlement, see Bnssey v. McCurley, 61 Md. 436 ; 
 48 Am. Eep. 118. 
 
 23 Eeade v. Livingston, 3 Johns. Ch. 481 ; Carter v. Smith, 82 Ala. 
 334 ; 60 Am. Rep. 738. 
 
 2« Phillips V. Wooster, 36 N. Y. 412. 
 
 2«' Thompson v. Allen, 103 Penn. St. 104 ; 49 Am. Eep. 116. But 
 not if she is an adulteress or the provision is extravagant. Warlick v. 
 White, 84 N. C. 139 ; 41 Am. Eep. 453. 
 
 26 Savage v. Murphy, 34 N. Y. 508; Carr v. Phelps, 39 id. 164. 
 28 Jackson v. Post, 15 Wend. 588. 
 
 27 Seward i>. Jackson, 8 Cow. 406. 
 
POST-NUPTIAL SETTLEMENTS. 59 
 
 creditors, there must be an actual fraudulent intent 
 on the part of the grantor to avoid the conveyauce.^^ 
 Where sucli intent exists the grantee's innocence will 
 not avail.2^ 
 
 Presents of chattels by the husband to the wife 
 may be held by her as against his creditors, where 
 they were bought for her, and brought into the house 
 and recognized as hers.^" A gift of chattels from 
 husband to wife is valid where the claims bf creditors 
 do not intervene.^i But his voluntary note to her 
 is not good as against his heirs.^^ Yet the note of a 
 third person, upon a consideration moving from the 
 husband, and by him given to the wife, is valid as a 
 gift.^ If he takes for a debt due to him a note pay- 
 able to himself and his wife, it is presumed to be in- 
 tended as a gift to her if she survives him, but he 
 may defeat this right by will.^ 
 
 Whether a note executed by a husband to his wife 
 living separate from him to induce her to return, is 
 enforceable, is variously decided.^^ 
 
 A settlement on the wife in consideration of her 
 release of her inchoate right of dower is valid as 
 against creditors unless grossly excessive, and then 
 void only as to the excess.^® 
 
 28 Loeschigk v. Hatfield, 5 Eobt. 26. 
 
 29 Mohawk Bank v. Atwater, 2 Pai. 54. 
 
 80 Reed v. Gannon, 50 N. Y. 345. 
 
 81 Mack V. Mack, 3 Hun, 323. 
 
 82 Whitaker v. Whitaker, 52 N. Y. 368. 
 
 83 Eeed v. Eeed, 52 N. Y. 651. 
 
 8* Pile V. Pile, 6 Lea. 508 ; 40 Am. Rep. 50. 
 
 85 Phillips V. Meyers, 82 111. 67 ; 25 Am. Rep. 295 ; Copeland v. 
 Boaz, 9 Baxt. 223 ; 40 Am. Rep. 39. 
 
 88 Collins !>._r)awley, 4 Col. 138 ; 34 Am. Rep. 72. ' 
 
60 THE DOMESTIC KELATIONS. 
 
 A, post-nuptial contract between husband and wife 
 
 to renounce their mutual rights of property is 
 Yoid.86* 
 
 Many States by statute permit the wife to have 
 the benefit of an insurance on the husband's life as 
 against his creditors, although he pays the premiums, 
 and the wife may pledge it as security for his debt.^' 
 
 CONSTKUCTIVE FRAUD. 
 
 It must be observed that a conveyance or gift 
 by a woman to her husband or intended husband 
 is presumed to be fraudulent and void as to her, and 
 will not be sustained except upon clear proof of the 
 strictest good faith on the part of the grantee. This 
 doctrine is founded on the presumed influence and 
 dominion of the husband. It is the same although 
 the conveyance is apparently for value.^ 
 
 «6* Newby v. Cox, 81 Ky. 58. 
 
 '■^ Burwell's Exr. v. Lumsden, 24 Gratt. 443 ; 18 Am. Eep. 648. 
 
 «8 Darlington's Appeal, 86 Penu. St. 512; 27 Am. Rep. 726; Pierce 
 V. Pierce, 71 N. Y. 154; 27 Am. Rep. 22, and note, 26; Gilmore v. 
 Burch, 7 Or. 374 ; 33 Am. Eep. 710. 
 
CHAPTER VI. 
 
 SEPARATION AND DIVORCE. 
 
 The law is opposed to voluntary separation of 
 husband and wife, and regards an agreement there- 
 for as illegal.! A settlement by way of separate 
 maintenance on such a separation is void.^ But 
 equity has come to recognize deeds of separation so 
 far as they concern the rights of third parties,^ and 
 will enforce specific performance so far as their pro- 
 visions are not contrary to law or public policy.* 
 Such deeds are not uncommon in England, but are 
 infrequent in this country. They seem not to be 
 recognized generally in New England,^ and they are 
 discarded in North CaroUna.® In Massachusetts, 
 although a contract for future separation is void, yet 
 when a husband agrees to pay a trustee a sum of 
 money for the support of his wife in contemplation' 
 of an immediate separation which takes place, this 
 is valid.® It is also there held that a contract for the 
 support of the wife made after separation is valid.'^ 
 An executed agreement for separation is a valid de- 
 
 1 2 Kent Com. 177. 
 
 2 St. John V. St. John, 11 Ves. 530. 
 
 ' "Wilson V. "Wilson, 1 H. of L. Cas. 538. 
 
 * "Vansittart v. "Vansittart, 2 DeG. & J. 249. 
 
 6 Albee v. "Wyman, 10 Gray, 222. 
 
 « Collins V. ColUns, 1 Phill. N. 0. Eq. 153. 
 
 ' Pox V. Davis, 113 Mass. 255; 18 Am. Kep. 476. 
 
62 THE DOMESTIC RELATIONS. 
 
 fence to an action for divorce for acts of cruelty 
 committed before the agreement;^ but otherwise as 
 to an action for divorce for impotency.^ An agree- 
 ment for separation and maintenance pending an 
 action for absolute divorce is valid.^* 
 
 Where the wife is abandoned by the husband, and 
 he leaves the State, the law recognizes her right to 
 earn, contract, sue, and be sued, like a single woman ; 
 but not unless he has left the State.^" 
 
 The law recognizes three kinds of divorces : — 
 
 1. Divorces on the ground of the nullity of the mar- 
 
 riage contract. 
 
 2. Divorces dissolving the marriage contract, called 
 
 absolute divorces or divorces a vinculo. 
 
 3. Divorces from bed and board, a mensa et thoro, 
 
 called limited divorces. 
 
 These are regulated in all communities by statute, 
 and these statutes differ so radically that it is impos- 
 sible to review them in an elementary work, or to do 
 more than point out a few general principles every- 
 where recognized. 
 
 1. Nullity of contract. — For this divorce there are 
 generally five causes : lack of legal age, former mar- 
 riage, lack of mental capacity, force or fraud, and 
 impotence. These matters have been somewhat re- 
 
 8 Squires v. Squires, 53 "Vt. 208 ; 38 Am. Rep. 668. 
 
 9 J. G. V. H. G., 33 Md. 401 ; 3 Am. Rep. 183. 
 9* Pettit V. Pettit, 107 N. Y. 677. 
 
 10 Abbott V. Bayley, 6 Pick. 89 ; Hayward v. Barker, 52 "Vt. 429 ; 
 36 Am. Rep. 762. 
 
SEPARATION AND DIVORCE. 63 
 
 marked upon in the opening chapter. It may now 
 be said generally, that marriages coming within these 
 prohibitions are usually valid until pronounced void, 
 and the children are legitimate." It has been held, 
 however, that a judgment annulling a marriage con- 
 tracted by an insane party is unnecessary.^^ The 
 lack of mental capacity and the impotence to justify 
 a divorce must have existed at the time of the mar- 
 riage.^ 
 
 A marriage procured by fraud can be avoided only 
 by the person defrauded." 
 
 2. Dissolution of the contract. — The main and uni- 
 vei'sally recognized cause for this is adultery. In 
 England a divorce for this cause is denied to the 
 wife unless accompanied by cruel treatment. But a 
 divorce for this cause will never be granted where 
 the offence was committed by the procurement or 
 connivance^^* of the complainant; or has been for- 
 given and the parties have voluntarily cohabited 
 with knowledge of its commission, which is called 
 Condonation ; or the complainant has also been 
 guilty of the like offence, so that the defendant, if 
 innocent, might have a divorce therefor, which is 
 called Recrimination. 
 
 Adultery pending suit is also a bar. 
 
 11 Tompert's Exrs. v. Tompert, 13 Bush, 326 ; 26 Am. Rep. 197 ; 
 Birdzell v. Birdzell, 33 Kans. 433; 52 Am. Rep. 539. 
 
 12 Powell V. Powell, 18 Kans. 371 ; 29 Am. Rep. 774; Insanity, 17 
 Alb. L. J. 220. 
 
 1^ See a doubtful decision as to connivance, Robbins v. Robbins, 
 140 Mass. 528 ; 54 Am. Rep. 488. 
 
64 1 THE DOMESTIC RELATIONS. 
 
 Condonation is a conditional forgiveness; repeti- 
 tion revives the iujury.^^ 
 
 Recrimination is a valid defence in all actions for 
 divorce.^* 
 
 Generally the defendant on judgment passing 
 against him is prohibited from remarrying during 
 the plaintiff's life. But this provision has no extra- 
 territorial effect.i^ It is held that a marriage within 
 this State in violation of this injunction subjects the 
 prohibited party to the penalties of bigamy.^^ 
 
 3. From bed and hoard. — The common law did 
 not allow this divorce to the husband.^'^ It may be 
 granted for a limited time or forever. 
 
 The causes differ very greatly in different commu- 
 nities, but the following, recognized in New York, 
 are probably universal : — 
 
 1. Cruel and inhuman treatment. 
 
 2. Such conduct as renders it unsafe and improper 
 
 to cohabit. 
 
 3. Abandonment and refusal or neglect to provide. 
 
 1. Cruel and inhuman treatment. — This must be 
 such as renders the life or health of the plaintiff 
 unsafe.^^ Words of menace creating a reasonable 
 
 18 Smith V. Smith, 4 Pai. 432; Sewall o. Sewall, 122 Mass. 156; 
 23 Am. Rep. 299. . 
 
 w Hale V. Hale, 47 Tex. 336 ; 26 Am. Eep. 294. ' 
 
 15 Van Voorhis v. Brintnall, 86 N. Y. 18 ; 40 Am. Rep. 505. 
 
 i« People V. Faber, 92 N. Y. 146 ; 44 Am. Rep. 357. 
 
 " Van Veghteu v. Van Veghten, 4 Johns. Ch. 501. 
 
 •8 Perry w. Perry, 2 Pai. 501 ; Wheeler v. Wheeler, 53 Iowa, 511 ; 
 36 Am. Rep. 240. 
 
SEPARATION AND DIVOECE. 65 
 
 apprehension of bodily violence will suflBce.^^ It 
 need not be personal ; unmercifully whipping her 
 child in the wile's presence and in spite of her en- 
 treaties will suffice.^" But mere bad temper, or con- 
 duct producing annoyance, discontent, and disgust, is 
 not enough.^i Nor does mere intoxication, occasional 
 or frequent, constitute " cruel or inhuman treat- 
 ment."^ Nor an angry expulsion of the wife under 
 suspicion of infidelity.^* Nor refusal to permit her 
 to attend her own church.^ 
 
 A single cruel act does not constitute " cruelty of 
 treatment."'^ But when accompanied by circum- 
 stances indicative of a probability of repetition, it 
 may warrant a divorce.^^ But not unless it threat- 
 ens life or affects health.^" A single false accusation 
 of unchastity warrants a divorce for cruelty .'■2'* 
 
 Recrimination in kind, but only when in kind, is a 
 defence.^ Cohabitation does not condone cruelty .^s* 
 
 1' Whispell I-. "Whispell, 4 Barb. 217 ; Davies v. Dairies, 55 id. 130. 
 2» Bihin v. Bihin, 17 Abb. Pr. 19. 
 
 21 Conklin v. Conklin, 17 Abb. Pr. 20. 
 
 22 Mason v. Mason, 1 Edw. 278. 
 
 28 Barlow v. Barlow, 2 Abb. Pr. (N. S.) 259. 
 
 2* Lawrence u. Lawrence, 3 Pai. 267. See W. u, W., 141 Mass;. 
 495; 55 Am. Rep. 491. 
 
 25 Hoshall V. Hoshall, 51 Md. 72 ; 34 Am. Rep. 298. 
 
 26 Beyer o. Beyer, 50 Wis. 254 ; 36 Am. Rep. 848 ; Palmer v. 
 Palmer, 45 Mich. 150 ; 40 Am. Rep. 461. 
 
 27 See note to last case, 40 Am. Rep. 463. 
 
 21* Bahn v. Bahn, 62 Tex. 518 ; 50 Am. Rep. 539 ; Avery v. Avery, 
 33 Kans. 1 ; 52 Am. Rep. 523 ; Albert v. Albert, 5 Mont. 577 ; 51 Am. 
 Rep. 86 ; Friend v. Friend, 53 Mich. 543 ; Kelly v. Kelly, 18 Nev. 49; 
 51 Am. Rep. 742. 
 
 28 Hopper V. Hopper, 1 1 Pai. 46 ; Terhune v. Terhune, 40 How. Pr. 258. 
 28* Reynolds v. Reynolds, 3 Keyes, 368. 
 
 5 
 
66 THE DOMESTIC RELATIONS. 
 
 2. Such conduct as renders it unsafe and improper 
 to cohabit. — ^'■'Unsaie" means a reasonable apprehen- 
 sion of bodily injury.'^^ As subjecting the wife to 
 excessive sexual intercourse.^" 
 
 3. Abandonment and refusal or neglect to provide. 
 — These must concur.^i The neglect must be wil- 
 ful.^2 Denial of sexual intercourse is not " utter de- 
 sertion";^^* nor "desertion" nor "cruelty."^^ On 
 a suit b}' a husband for separation for abandonment, 
 the wife may be awarded a separation for cruelty.^ 
 
 Alimony. — Pending the suit the court may grant 
 the wife a pecuniary provision from the husband to 
 enable her to live separatelj' from him, which is 
 called alimony ; and also compel him to pay her 
 counsel fees to enable her to wage or defend the 
 suit. On granting her a divorce the court may 
 also impose alimony, and order the husband to 
 make provision for supporting the children. If 
 the wife remarries, the court may revoke or reduce 
 her alimony, it not appearing that the new husband 
 is not able to support her.^^ 
 
 The court may also grant alimony although no 
 divorce is sought.^s* -phe application must be made 
 before judgment.^^ 
 
 '^ Mason v. MaBon, 1 Edw. 278. 
 
 '" Melvin v. Melvin, 58 N. H. 569 ; 42 Am. Eep. 605. 
 '31 Ahrensfeldt t>. Ahrensfeldt, Hoffm. 47. 
 "*2 Skean t). Skean,'6 Stew. 149. 
 •5-* Stewart v. Stewart, 78 Me. 548 ; 57 Am. Rep. 822. 
 82+ Segelbaum v. Segelbaum, 39 Minn. 258. 
 '32* Waltermire v. Waltermire, 110 N. Y. 183. 
 '8 Stillmau v. Stillman, 99 111. 196 ; 39 Am. Rep. 21. 
 "* Graves v. Graves, 36 Iowa, 310 j 14 Am. Rep. 405. 
 ' 3St Beadleston v. Beadleston, 103 N. Y. 
 
FOREIGN DIVORCES'. 67 
 
 FOREIGK DIVORCES. 
 
 A divorce obtained by the husband against the 
 wife, who was not within the jurisdiction, nor per- 
 sonally served with process, and did not appear, 
 is void.^ The same is true of a divorce so obtained 
 against the husband.^ Even when there was an 
 appearance, but unaiJthorized.^® The record of such 
 a judgment may always be impeached by proof of 
 the facts.^ A divorce rendered in a State where 
 neither of the parties lived at the time is void ; ^ 
 and a State statute authorizing divorces to non- 
 residents who desire to become residents is void.^ 
 But a divorce in another State, against an absent 
 wife, who was a resident of that State, upon sub- 
 stituted service of process in accordance with the 
 laws of that State, is valid elsewhere.*" But a 
 wife confined by the husband in an insane asylum 
 in another State is not absent so as to warrant 
 constructive service, and even a domestic decree 
 rendered on such service in such case may be 
 collaterally impeached.*^ 
 
 M Borden v. Fitch, 15 Johns. 121; People v. Baker, 76 N. Y. 78; 
 32 Am. Rep. 274. 
 
 86 Bradshaw v. Heuth, 13 Wend. 407. 
 8» Kerr v. Kerr, 41 N. Y. 272. 
 
 87 Hoffman v. Hoffman, 46 N. Y. 30 ; 7 Am. Rep. 299. 
 
 88 Hood V. State, 56 Ind. 263; 26 Am. Rep. 21 ; Gettys v. Gettys, 
 3 Lea, 260; 31 Am. Rep. 637; Sitowich v. Sitowich, 19 Kans. 451; 
 27 Am. Rep. 145. 
 
 89 Hood ». State, supra; Van Foaaen u. State, 37 Ohio St. 317; 41 
 
 Am. Rep. 507. 
 
 « Hunt V. Hunt, 72 N. Y. 217 ; 28 Am. Rep. 129. 
 
 « NewcomVs Exrs. v. Newcomh, 13 Bush, 544; 26 Am. Rep. 222. 
 See, also, Bradford v. Ahend, 89 lU. 78; 31 Am. Rep. 67. 
 
68 THE DOMESTIC EELATIONS. 
 
 Divorce is always measured by the law of dom- 
 icile.*2 
 
 EFFECT AND INCIDENTS OF DIVOECE. 
 
 Absolute divorce, as we have seen, bars dower, 
 but it does not annul a provision by will in favor 
 of either party .^^ Limited divorce with provision for 
 payment of a gross sum in discharge of liability for 
 future support does not bar dower.*^* But where 
 both are allowed to remarry, a decree in favor of 
 the wife, with provision for permanent alimony, bars 
 dower.^^t A woman to whom has been granted a 
 separation may acknowledge a deed of her own land 
 as if single.*^ A divorced woman can recover for 
 services rendered by her to her former husband before 
 the marriage ; ** but not for a tort during the mar- 
 riage.*^ The court may always provide for the cus- 
 tody of the children. The adequacy of alimony cannot 
 be collaterally attacked by a stranger.*^* Alimony 
 for life subsists even after defendant's death.*-^* 
 
 *^ Harvey v. Earnie, 6 P. Div. 35 ; Sottomayor v. Be Barros, 3 P. 
 Div. 1 ; 5 id. 94. 
 
 ^ Charlton v. Miller, 27 Ohio St. 298 ; 22 Am. Eep. 307 ; Card v. 
 Alexander, 48 Conn. 492; 40 Am. Eep. 187; Ke Boddington, Ch. 
 Div., Jan., 1883. 
 
 *^ Taylor v. Taylor, 93 N. C. 418 ; 53 Am. Eep. 460. 
 
 48t Tatro V. Tatro, 18 Neb. 395 ; 53 Am. Eep. 820. 
 
 «* Delafield v. Brady, 108 N. Y. 524. 
 
 <* Carlton v. Carlton, 72 Me. 115; 39 Am. Eep. 307. 
 
 " Abbott V. Abbott, 67 Me. 304 ; 24 Am. Eep. 27 ; Libby v. Berry, 
 74 Me. 286. 
 
 '^ Hare v. Gibson, 32 Ohio St. 33 ; 30 Am. Eep. 568. 
 
 i^t Stratton v. Stratton, 77 Me. 373; 52 Am. Eep. 779. 
 
AKNTJLLING DIVORCE. 69 
 
 Divorce for fault of either destroys wife's right to 
 administer on or share in his estate.*^* 
 
 ANNULLING DIVORCE. 
 
 A decree of divorce may be vacated for fraud .*^ 
 Although the rights of innocent third parties are 
 thereby prejudiced.*'^ But not by strangers to the 
 record, as infant children of divorced parents.^^ 
 Annulling the decree puts the parties in statu 
 quo, without regard to subsequent marriage and 
 birth of children, or agreement of parties ; *® and 
 where the decree was granted in another State, 
 the annulling will be presumed valid.*^ 
 
 «t Matter of Ensign's Estate, 103 N. Y. 284 ; 57 Am. Eep. 717. 
 " Edson V. Edson, 108 Mass. 590 ; 11 Am. Rep. 393. 
 " Rush V. Rush, 46 Iowa, 648 ; 26 Am. Rep. 179. 
 48 Baugh V. Baugh, 37 Mich. 59 ; 26 Am. Rep. 495. 
 IB Comstock V. Adams, 23 Kans. 513 ; 33 Am. Rep. 191. 
 
CHAPTER VII. 
 
 PAEENT AND CHILD. 
 
 Childeen are of two classes: legitimate and 
 illegitimate. A legitimate child is one begotten 
 or born in wedlock. An illegitimate cliild is one 
 begotten and born out of wedlock. 
 
 The legal presumption is that a child born dur- 
 ing wedlock is legitimate. But this presumption 
 may be rebutted. The common-law rule was that 
 a child born during wedlock was legitimate if the 
 husband was within the four seas and not impo- 
 tent. But this has been modified, and now it is 
 generally held that proof of non-access of the 
 husband establishes illegitimacy, and this is a ques- 
 tion of fact. Legitimacy is favored in law, and 
 illegitimacy can be established only by clear proof.^ 
 
 At the civil law subsequent marriage legitimated 
 issue previously born, and this is the law of a num- 
 ber of our States, but not of England nor New 
 York. 
 
 Parliament may legitimate illegitimate children, 
 and so may our legislatures unless restrained by con- 
 stitutional provision. 
 
 The domicile of a child's origin is determined 
 by that of his father. As a general rule the ques- 
 
 1 Hargrave v. Hargrave, 9 Beav. 552 ; Patterson v. Gaines, 6 
 How. 582. 
 
DUTIES OP PARENTS. 71 
 
 tion of legitimacy is governed by the law of the 
 domicile of the child's origin. One born a bastard 
 is not rendered legitimate in England by the sub- 
 sequent marriage of his parents in a country where 
 such subsequent marriage legitimates. And a per- 
 son illegitimate by the law of the domicile of his 
 birth is held illegitimate in England.^* 
 
 Adoption was not recognized at common law, 
 but is recognized by statute in a few States. 
 
 DUTIES OF PARENTS. 
 
 There are three : 1. To protect ; 2. To educate ; 
 3. To maintain. 
 
 1. Protection. — This duty will justify a parent 
 in upholding a child in his law-suits, and commit- 
 ting an assault and battery in his defence. 
 
 2. Education. — This is generally a moral rather 
 than a legal duty. In New York there is a system 
 of compulsory education, but it is practically a 
 dead-letter. In England the question of education 
 frequently arises under the father's will. In the 
 absence of any direction the child is to be educated 
 in the father's religion. The religious education 
 of an infant of fifteen will not be changed unless 
 he desires it, but no regard is paid to the wishes 
 of one of ten. The father may direct the plan of 
 education to be pursued after his death. The 
 English court of chancery exercised a direction 
 of the education of minor wards. With this our 
 
 1* See Greenhow v. James's Exrs., 80 Va. 636 ; 56 Am. Eep. 603. 
 
72 THE DOMESTIC RELATIONS. 
 
 courts, have little to do. The duty of educating 
 does not extend to a trade or profession.^ 
 
 3. Maintenance. — The father is bound to support 
 his minor child. It would seem that this is an 
 obligation imposed by nature, but- it has been held 
 that at common law it does not exist.^ By statute, 
 43 Eliz., generally regarded as a part of our own 
 law, the parents of blind, lame, and impotent per- 
 sons were bound to maintain them, but this obli- 
 gation extends only to necessaries. This is also 
 generally the statutory rule in this country. 
 
 The father at common law is indictable for 
 exposure or neglect of his children, and one who 
 wilfully suffers his little child to starve to death 
 commits murder; but when children grow up they 
 are presumed to provide for their own urgent 
 wants.* And a father is not criminally liable for 
 mere neglect to call a physician for his child.^ 
 
 The father is not bound to support the child 
 in idleness if the child is able to work. 
 
 The step-father is not bound to support his step- 
 child unless he practically adopts him by taking 
 him into his family and providing for him.® 
 
 In a state of voluntary separation the husband 
 and not the wife is prima facie bound for the 
 support of children living with the wife.'^ But 
 
 2 Turner v. Gaither, 82 N. C. 357 ; 35 Am. Rep. 574. 
 
 » Kelly V. Davis, 49 N. H. 176 ; 6 Am. Rep. 499. 
 
 * Johnson v. State, 2 Humph. 283. 
 
 ' Queen v. Morby, 8 Q. B. Div. 571. 
 
 6 Smith V. Rogers, 24 Kans. 140 ; 36 Am. Rep. 254. 
 
 ' liimball v. Keyea, 11 Wend. 33. 
 
DUTIES OB' PAEENTS. 73 
 
 this is not so where tnere is a divorce, even for 
 the husband's fault, and an award of children to 
 the mother imposes the duty of support on her 
 beyond alimony.* 
 
 Although the father js generally bound to main- 
 tain the children whatever their circumstances, 
 yet if he is unable, and they have property of 
 their own, the court will order it applied to their 
 maintenance.® This will be done where the father 
 is unable to support the child according to its for- 
 tune and expectations.^" Frequently this is allowed 
 where, although the father is not destitute, yet the 
 children are better off.^^ The father may even 
 be allowed out of the estate for past maintenance.^^ 
 
 After the father's death the mother is bound to 
 support the child if able.^* But if the child has 
 property that will be applied without regard to 
 the mother's ability.^* If the father is living but 
 unable, and the child has property, the mother 
 will not be taxed except when necessary.^* 
 
 8 Burritt v. Burritt, 29 Barb. 124 ; Husband e. Husband, 67 Ind. 
 583 ; 33 Am. Eep. 107. But if there is no decree for custody, and the 
 wife supports the children, she may recover from the husband therefor. 
 Gilley v. Gilley, 79 Me. 292 ; 1 Am. St. Eep. 307. And so, where she 
 was awarded the custody, but there was no provision for the child's 
 support. Pretzinger b. Pretzinger, 45 Ohio St. 452 ; 4 Am. St. Eep. 542. 
 9 2 Kent Com. 191. 
 
 1" Buckworth v. Buckworth, 1 Cox, 80; Matter of Kane, 2 Barb. 
 Ch. 375. 
 
 " 2 Kent Com. 191 ; Harring v. Coles, 2 Bradf. 249. 
 
 12 Matter of Burke, 4 Sandf. Ch. 619. ' 
 
 18 Dedham v. Natick, 16 Mass. 140. 
 
 1* Halley v. Bannister, 4 Mad. 275. And she may be allowed for 
 support of the child out of its estate. Pierce v. Pierce, 64 Wis. 72 ; 
 54 Am. Eep. 581. 
 
74 THE DOMESTIC RELATIONS. 
 
 As a general rule the capital of the child's prop- 
 erty will not be infringed for his support except 
 when absolutely necessary .^^ 
 
 Agency of Child. — The father is not bound by the 
 contracts or for the debts of his child, even for neces- 
 saries, except upon actual or implied authority.^® 
 
 If the infant resides at home, and is there prop- 
 erly supported by his father, a third person can- 
 not furnish him necessaries so as to bind the father, 
 ■without express authority." But if the father fails 
 in this duty, so that the child is obliged to leave 
 home, it has been held that he may bind him for 
 necessaries." In such case the authorities differ 
 as to whether the liability rests upon an implied 
 authority or moral obligation. But this seems gen- 
 erally a dispute over words, for the slightest evi- 
 dence will sustain a finding of authority by implica- 
 tion. As where the father knows the circumstances, 
 and makes no objection.^^ And having been made 
 liable once, he may be again in the same circum- 
 stances.^^ As where he has paid former similar bills.^" 
 But in the absence of any such circumstances the 
 moral obligation will not raise the liability.^i 
 
 i>6 Barlow v. Grant, 1 Vem. 255. " 2 Kent Com. 192. 
 
 " Clinton v. Rowland, 24 Barb. 634. Although the third person 
 was ignorant that he was already supplied. Baines v. Toye, 13 Q. B. 
 Div. 410 ; 41 L. T. Rep. (N. S.) 292. 
 
 18 Thayer v. White, 12 Met. 343 ; Dalton v. Gib, 5 Bing. (N. C.) 198. 
 
 M Platts V. Rosebury, 4 Dutch. 146. 
 
 20 Bryan w. Jackson, 4 Conn. 288. 
 
 21 Kelly I). Davis, 49 N. H. 176 ; 6 Am. Rep. 499 ; Holt v. Baldwin, 
 46 Mo. 265; 2 Am. Rep. 515; Freeman «. Robinson, 38 N.J. 383; 
 20 Am. Rep. 399, and note 403. 
 
RIGHTS OF PAEENTS. 75 
 
 The child after majority is presumed to furnish 
 his own necessaries, and a mere request from the 
 father to furnish them, though the son is still 
 living with him, does not bind the father.^^ 
 
 Where the child is absent from home, the person 
 furnishing necessaries to the child must ascertain 
 at his peril whether the child is warrantably 
 absent,^^ and must take notice at his peril of what 
 is necessary according to the child's situation.^* 
 
 EIGHTS OP PAEENTS. 
 
 The law gives to parents the custody, control, and 
 services of their minor children, to aid the fulfil- 
 ment of their obligations toward them and to com- 
 pensate them therefor. 
 
 1. Correction. — Very ancient laws gave to the 
 father the power of life and death over his children. 
 The common law gives only a moderate degree of 
 authority, relaxing as the child grows older. The fa- 
 ther ma}' correct the child in a reasonable manner,^** 
 but for cruel punishment he is liable to indictment, 
 and may even be found guilty of manslaughter or 
 murder where death ensues. One standing in loco 
 pa/rentia has the same right of correction.^^ 
 
 22 Boyd o. Sappington, 4 Watt», 247. 
 
 23 Raymond v. Loyd, 10 Barb. 483. 
 
 24 Van Valkenbargh v. Watson, 13 Johns. 480. 
 
 24* It has been held that he is not indictable for a cruel chastise- 
 ment unless malicious and permanently injurious. State i'. Jones, 
 95 N. C. 588 ; 59 Am. Rep. 282. See note, 59 Am. Rep. 286. 
 
 26 Snowden v. State, 12 Tex. App. 105 ; 41 Am. Rep. 667. 
 
76 THE DOMESTIC RELATIONS. 
 
 2. Custody. — At common law the father has the 
 paramount right to the care, cnstody, maintenance, 
 and nurture of the minor child.^^ The mother has 
 little or no authority. The father may appoint a 
 testamentary guardian ; but in case of the father's 
 death without the exercise of this power, the mother 
 succeeds to these rights. 
 
 But courts of equity established a different rule, 
 and gave these rights to the mother where the father 
 was unfit or unable, as when he was an outlaw and 
 resided abroad, or was living in adultery ,^^ or en- 
 couraged his children in bad habits, or if they could 
 not associate witli him without moral contamination 
 or being shunned by others.^ Mere adultery on the 
 father's part was not regarded unless the child was 
 brought into contact with the paramour.^^ Atheism, 
 blasphemy, and irreligion have been accounted suffi- 
 cient to warrant the court in depriving the father of 
 the custody of the child. So, where the father was 
 intemperate, vicious, and coarse, the court refused to 
 take a child of nine from his maternal grandfather 
 and give him to the father.^" 
 
 But mere poverty or insolvency will not suffice, 
 even if another offers ample security for the child's 
 support ; ^' but otherwise if the father has acquiesced 
 for a time.^^ 
 
 26 People V. Mercein, 3 Hill, 399. 
 
 2' Wellesley v. Beaufort, 2 Euss. I. 
 
 =8 Anon., 2 Sim. (N. S.) 54. M Ball ». Ball, 2 Sim. 85. 
 
 »i In re Goldsworthy, L. R. 2 Q. B. D. 75. 
 
 '1 Ex parte Hopkins, 3 P. Wms. 152. 
 
 »2 Blake v. Leigh, Amb. 307. 
 
EIGHTS OF PAKENTS. 77 
 
 The English common law was ameliorated in 1839 
 by Justice Talfourd's act, which made the father's 
 right of custody dependent on his performance of his 
 parental dutj' and on the interests of the child. 
 
 In America the father has the paramount right of 
 custody in the absence of statutes to the contrary,^^ 
 but it may be forfeited by misconduct. As for re- 
 fusal to provide proper medical attendance.^* The 
 welfare of the child is the paramount consideration.^^ 
 In a word, it is in the discretion of the court to 
 change the custody of the infant, as between the par- 
 ents. But generally a stranger may not interfere.^^ 
 
 The wishes of the child will be consulted if he is 
 of years of discretion, but not otherwise. Nine or 
 ten years has been considered too young, but some- 
 times less than fourteen will answer. 
 
 In England it has been held that a father may re- 
 Toke an agreement to surrender the custody of the 
 child.2'^ The general doctrine seems to be against 
 permanent transfer, except upon apprenticeship or 
 legal adoption. But where a child has been given 
 up at birth to third persons, especially relatives, 
 who have for a period of years supported it with the 
 acquiescence of the parents, the court may refuse in 
 
 " People V. Humphreys, 24 Barb. 321. 
 
 34 Heinemann's Appeal, 96 Penn. St. 112 ; 42 Am. Eep. 532. 
 
 35 Case of "Waldron, 13 Johns. 418; McKim v. McKim, 12 R. I. 
 462 ; 34 Am. Rep. 694 ; English v. English, 22 Alb. L. J. 243 ; Drum- 
 mond V. Ashton, 22 Alb. L. J. 183 ; Matter of Bort, 25 Kans. 308 ; 
 37 Am. Eep. 255 ; Sturtevant v. State, 15 Neb. 459 ; 48 Am. 
 Rep. 349. 
 
 88 Schoul. Dom. Rel. 340. 
 
 8' Reg. V. Smith, 16 E. L. & Eq. 221. 
 
78 THE DOMESTIC KELATIONS. 
 
 the interest of the child to award the custody to tlie 
 parents.^ 
 
 At common law the father may not divest himself 
 of his right by contract with the mother.^^ And it 
 seems that the father cannot give away the child so 
 as to bar the mother's right to its custody on the 
 father's death, even where the custody had been 
 changed for ten years, the child preferred to remain, 
 and the mother was poor.*" 
 
 Where the custody of the child has been given by 
 the parents to a third person, he may maintain an 
 action against one unlawfully taking it away, with- 
 out proving any loss of service.*^ 
 
 The widow loses the right of custody by remar- 
 riage.*^ 
 
 The usual remedy to obtain the custody is habeas 
 corpus, but this only lies when the child is restrained 
 of his liberty.*^ 
 
 3. Services and earnings. — The father has the 
 right to the child's services and earnings until its 
 majority. But not where he refuses or neglects to 
 
 '8 Pool V. Gott, 14 Law Reporter, 269 ; Matter of Mnrphy, 12 
 How. Pr. 513; but see Wilcox «. Wilcox, 14 N. Y. 575; Bentley v. 
 Terry, 59 Ga. 555 ; 27 Am. Eep. 399 ; Chapsky v. Wood, 26 Kans. 
 660 ; 40 Am. Eep. 321 ; Bonnett v. Bennett, 61 Iowa, 198 ; 47 Am. 
 Eep. 810 ; Matter of Scarritt, 76 Mo. 565 ; 43 Am. Eep. 768 ; Jones 
 !i. Darnell, 103 Ind. 569; 53 Am. Eep. 545 ; Merritt v. Swimley, 82 
 Va. 433 ; 3 Am. St. Eep. 115. 
 
 '^ Torrington v. Norwich, 21 Conn. 543. 
 
 <" Moore v. Christian, 56 Miss. 408 ; 31 Am. Eep. 375. 
 
 ^1 Clark V. Bayer, 32 Ohio St. 299 ; 30 Am. Eep. 593. 
 
 *2 Williams v. Hutchinson, 5 Barb. 122. 
 
 <8 In re Poole, 2 McA. 583 ; 29 Am. Eep. 628. 
 
RIGHTS OP PAEENTS. 79 
 
 support the child, or compels him to support himself. 
 The right of actiou for a minor's services is presumed 
 to be in the father.''* 
 
 But the father may voluntarily relinquish this 
 right to the child. This is called Emancipation. 
 The agreement may be express, or implied from cir- 
 cumstances.*" The father may do this although in- 
 solvent.** In such case payment by a third person 
 of the minor's wages to him is valid. 
 
 But where the child has not been emancipated the 
 father may forfeit his right to recover his wages from 
 a third by delay and acquiescence in payment to the 
 child.*^ No secret arrangement between father and 
 child can justify payment to the minor.*^ 
 
 The father may bind himself that a third may 
 have the services of his minor child for any speci- 
 fied time during minority, for a compensation to the 
 father and the support and education of the child.*® 
 
 If a minor absconds and serves one who supports 
 him, the father cannot recover his wages without 
 allowing for his support.^ An emancipated minor 
 stands on the footing of a stranger as to employment 
 by his father.si 
 
 ** Shute V. Dorr, 5 Wend. 204. 
 
 *' Burlingame v. Burlingame, 7 Cow. 92. 
 
 « Atwood V. Holcomb, 39 Conn. 270; 12 Am. Rep. 386; Wilson 
 V. McMillan, 62 Ga. 16 ; 35 Am. Eep. 115 ; Wambold v. Vick, 23 Alb. 
 L. J. 97. 
 
 « Smith V. Smith, 30 Conn. 111. 
 
 48 Kaufielt V. ModerweU, 21 Penn. St. 222. 
 
 4" Van Dorn v. Young, 13 Barb. 286. 
 
 " Hunton v. Hazelton, 20 N. H. 388. 
 
 61 Hally. Hall, 44N. H. 293. 
 
80 THE DOMESTIC RELATIONS. 
 
 A widow is entitled to the earnings and services of 
 her minor child, unless he is emancipated or has a 
 guardian.^2 But not after remarriage."^ 
 
 The right to services and earnings ceases with the 
 attaining of majority. After majority, if the child 
 continues with the parents, the family relation is pre- 
 sumed to continue, and the child cannot recover for 
 services to the parent, unless there was an agreement 
 therefor.^ 
 
 The right does not extend to step-children.^ 
 Where the step-father voluntarily assumes their care 
 and support, he stands in loco parentis, and he cannot 
 recover for their support nor can they for their ser- 
 vices.^^ 
 
 THE child's property. 
 
 The father has no right in the child's separate per- 
 sonal or real estate. 
 
 Clothing furnished by the father to the child be- 
 longs to the father, and he may maintain suit for 
 injury thereof.^' But not so when he gives him 
 money for general purposes, and the child buys 
 
 52 Simpson v. Buck, 5 Lans. 337 ; Hammond v. Corbett, 50 N. H. 
 501 ; 9 Am. Rep. 288 ; Matthewson v. Perry, 37 Conn. 435 ; 9 Am. 
 Rep. 339 ; Furman o. Van Sise, 56 N. Y. 435 ; 15 Am. Rep. 441. 
 
 ^ Hollingsworth v. Swedentorg, 49 Ind. 378; 19 Am. Rep. 687; 
 Williams v. Hutchinson, 5 Barb. 122. 
 
 5* Dye V. Kerr, 15 Barb. 444; Green v. Roberts, 47 Barb. 521; 
 Houck u. Houck, 99 Penn. St. 552. 
 
 65 Tubb V. Harrison, 4 T. R. 18. 
 
 "6 Smith u. Rogers, 24 Kans. 140 ; 36 Am. Rep. 254 ; Gerdes v. 
 Weiser, 54 low^, 591 ; 37 Am. Rep. 239. 
 
 5' Prentice v. Decker, 49 Barb. 21. 
 
parent's action for injury to child. 81. 
 
 clothing with it.^^ Gifts from father to child may be^ 
 revoked.^ 
 
 All conveyances and gifts by a child to a parent 
 before or shortly after majority are presumptively 
 void, and only supported by proof of absolute good 
 faith. But this does not apply as to grandfather 
 and grandchild.™ 
 
 parent's action por injury to child. 
 
 The parent has a right of action for expenses and 
 loss of the child's services caused by the negligence 
 or wrong of another. The action is founded on the 
 Joss of service. So in England, if the child is so 
 young as to be incapable of performing any service, 
 the action would not lie,®i and it is doubted whether 
 in such case the action for expenses would lie.^^ , 
 But the rule is otherwise in tliis country ,^^ at least as 
 to expenses.^* After the father's death, the mother 
 may maintain the action.^^* 
 
 The right of the parent is not defeated by the fact 
 that the child is living with and in the service of 
 another ;^^ but it is otherwise if the parent has re- 
 linquished all right to the child's service.^^ 
 
 '8 Dickinson v. Winchester, 4 Cusli. 114. 
 
 69 Cranz ;;. Kroger, 22 111. 74. 
 
 6» Cowee V. Cornell, 75 N. Y. 91 ; 31 Am. Eep. 426. 
 
 61 Hall V. Hollander, 4 B. & C. 660. 
 
 62 GrinneU v. Wells, 8 Scott, N. K. 741. 
 68 Hartfield v. Roper, 21 Wend. 615. 
 
 6* Dennis v. Clark, 2 Cush. 347. 
 
 6i* County Commrs. v. Hamilton, 60 Md. 340 ; 45 Am. Eep. 739. 
 66 Wilt V. Vickers, 8 Watts, 227. 
 66 Arnold v. Norton, 25 Conn. 92. 
 6 
 
82 THE DOMESTIC RELATIONS. 
 
 The recovery may extend to prospective loss of 
 service.^^ But not to prospective medical outlay.^^* 
 
 The parent has no right of action for injury result- 
 ing in the instantaneous death of the child, but if 
 the child lingers and finally dies, he may recover for 
 intermediate loss of service.®^ 
 
 The parent's negligence always defeats his own 
 actio n.^^ 
 
 The father, or after his death the mother, has 
 a right of action for enticing away or abducting 
 the child.™ But the mere employment of a run- 
 away child is not enticement,^^ unless done with 
 knowledge of his absconding, and with intent to aid 
 and encourage him in staying awajP No action 
 lies for enticing the child into a marriage against the 
 parent's consent/^ 
 
 The theory of this action is reimbursement for loss 
 of service, hot compensation for wrong to the child. 
 
 In an action for seduction of a daughter the prin- 
 ciple is the same.'^* Injyry to the daughter will 
 not suffice. But the service lost need only be slight, 
 
 67 Drew V. Sixth Ave. E. R. Co., 26 N. Y. 49. 
 
 6'* Cuming v. Brooklyn City R. Co., 109 N. Y. 95. 
 
 68 Green v. H. R. R. Co., 2 Keyes, 294 ; Plummer v. "Wetb, Ware, 
 380; Edgar v. Castello, 14 S. C. 20; 37 Am. Rep. 714. 
 
 69 Smith w. Hestonville R. Co., 92 Penn. St. 450; 37 Am. Rep. 705. 
 '0 Lumley v. Gye, 2 Ell. & Bl. 224 ; Sargent v. Matthewson, 38 
 
 Jf . H. 54 ; Jones v. Tevis, 4 Litt. 25 ; Plummer v. Webb, Ware, 380. 
 
 " Butteifield v. Ashley, 6 Cnsh. 249. 
 
 72 Everett v. Sherfey, 1 Iowa, 256. 
 
 ■" Hervey v. Mosely, 7 Gray, 249. 
 
 '* Bartley v. Rlchtmeyer, 4 Comst. 38 ; Blagge v. Ilsley, 127 Mass. 
 191 ; 34 Am. Eep. 361 ; Ogborn n. Francis, 45 N. J. 441 ; 43 Am. 
 Rep. 394. 
 
parent's action for injury to child. 83 
 
 as making tea or milkirtg cows. Whatever the ser- 
 vice, the parent must have a genuine right to it. So 
 if the child was out at service at the time, the father 
 cannot maintain the action, but otherwise if he had 
 a right to recall her at any time. So where the child 
 was in the service of another, but by permission 
 . came home to render slight assistance from time to 
 time, the action does not lie ; '^ but otherwise if the 
 visits home were in the bargain by the father's re- 
 quirement.'^ Mere temporary absence on a visit 
 constitutes no impediment to the action.'^'^ Where 
 the girl was dismissed from service, and was seduced 
 on her way home, the action was held to li6.'^ Hir- 
 ing the girl on purpose to seduce her does not defeat 
 the action.'^^ The action lies after the daughter is of 
 age, if the relation of master and servant exists;^" 
 but not when the daughter is working for herself ; ^^ 
 nor where, although under age, she was at the head 
 of her own house, and the father was visiting with 
 her.^ 
 
 The mother has a right of action for the seduc- 
 tion of the minor daughter effected after the father's 
 death, if the daughter was actually in her service. 
 So when the father has been absent unheard of for 
 
 " Thompson v. Ross, 5 H. & N. 16. 
 73 Kennedy v. Shea, 110 Mass. 147 ; 14 Am. Eep. 584. 
 " Griffiths V. Teetgen, 15 C. B. 344; Sutton v. Hoffman, 32 
 N. J. 58. 
 
 fs Terry v. Hutchinson, 3 Q. B. 599. 
 '9 Daiu V. Wyckoff, 18 N. Y. 45. 
 "' Stevenson ». Belknap, 6 Iowa, 97. 
 
 81 George v. Van Horn, 9 Barb. 523. 
 
 82 Manley v. Field, 7 C. B. (N. S.) 96. 
 
84 THE DOMESTIC EELATIONS. 
 
 seven years.^^ And so when the daughter was out at 
 service, but came home and assisted her mother a 
 Tew days, becoming then pregnant by defendant, and 
 afterwards returned to service.** But not so when 
 the daughter was at service, and was seduced while 
 on a visit to her mother, and confined while in ser- 
 vice of another employer.^ It has even been held 
 that her action will lie even if the seduction occurred 
 while the daughter was out at service, but this does 
 not obtain in England and some of our States.^ 
 
 The action of seduction may be maintained by any 
 one standing in the parent's place. 
 
 Although the ground of the action of seduction is 
 loss of service, yet the damages are not restricted to 
 the loss of those services, but may embrace distress 
 of mind and loss of society.^" 
 
 In other actions the recovery is limited to loss of 
 services and expenses.** 
 
 LIABILITY FOE CHILD's TORTS. 
 
 The parent is not liable for his child's torts,*® 
 although committed in his presence but without his 
 approval.^'' Not even if he did not subsequently 
 
 83 DaTidson v. Abbott, 52 Vt. 570 ; 36 Am. Eep. 567. 
 w Gray v. Durlaud, 51 N. Y. 424. 
 85 Hedges v. Tagg, L. E. 7 Ex. 283. 
 8" Furman v. Van Sise, 56 N. Y. 435 ; 15 Am. Eep. 441. 
 ^^ Irwin V. Dearman, 11 East, 23 ; Bedford v. McKowl, 3 Esp. 120. 
 f Cowden v. Wright, 24 "Wend. 429. 
 89 Baker v. Haldeman, 24 Mo. 219. 
 
 9" Tifit u. Tifft, 4 Den. 175. Contra: Strohl v. Levan, 39 Penn. 
 St. 177. 
 
DUTIES OF CHILDKEK. 85 
 
 disapprove, as a malicious prosecution.^^ But he is 
 liable for the child's negligence in his service.^^* 
 And for injury by the child's negligent acts which 
 he knows of and permits on his premises.^" 
 
 DUTIES OF CHILDREN. 
 
 The child owes honor and obedience to his par- 
 ents. At common law he is not bound to support his 
 parents.®^ But this is generally changed by statute. 
 For necessaries furnished his parents at his request 
 he is liable,^^ and he is liable to contribute for neces- 
 saries furnished by other children at his request.^* 
 
 EIGHTS OP CHILDREN. 
 
 These have been already considered to some ex- 
 tent "Under Duties of Parents. But to particularize : 
 
 Emancipation. — This gives the child the right to 
 his own time and wages, and the control of his own 
 person, and discharges the parent from obligation to 
 support, unless the child becomes unable to support 
 himself. It may be in writing or by parol ; for the 
 whole minority or a shorter term ; gratuitous or for 
 
 91 Moon V. Towers, 8 C. B. (N. S.) 6n. 
 
 91' Teagarden v. McLaaghlin, 86 Ind. 476 ; 44 Am. Eep. 332 ; 
 SchaefEer v. Osterbrink, 67 Wis. 495 ; 58 Am. Rep. 875. 
 
 9it Horerson v. Noker, 60 Wis. 511 ; 50 Am. Rep. 381, and note, 
 383. But not for merely allowing the child to have a pistol. Hagerty 
 V. Powers, 66 Gal. 368 ; 56 Am. Rep. 101. 
 
 "'■' Edwards v. Davis, 16 Johns. 281. 
 
 98 Lebanon v. Griffin, 45 N. H. 558. 
 
 9* Stone V. Stone, 32 Conn. 142. 
 
8^ THE DOMESTIC RELATIONS. 
 
 a valuable consideration. It requires the child's 
 assent. If gratuitous and by parol, it is revocable 
 until acted upon.^^ Emancipation is always pre- 
 sumed in cases of necessity, as where the father 
 expels the child,^^ abandons him to his mother ,^^ or 
 leaves him to shift for himself, refusing or neglecting 
 to provide for him. Slight circumstances will sus- 
 tain a finding of emancipation, although not imply- 
 ing misconduct on the father's part.^^ It may take 
 place although the child continues at home.^ Mar- 
 riage with parental consent emancipates,^™ but not 
 so where it is without consent.^"' The child's earn- 
 ings after emancipation cannot be recovered by the 
 father,^"^ although he has notified the employer not 
 to pay the child.^''^ Nor can the father's creditors 
 attach thenlji"^ although he is insolvent.^"^ After 
 emancipation the father may deal with the child as a 
 stranger 5^"* but it has been said that as to creditors 
 he can only relinquish the right to the child's ser- 
 vices, and may not also "pay him therefor.i''^ The 
 fact that the father received the earnings or the 
 
 "5 Abbott V. Converse, 4 Allen, 530. 
 
 98 Clinton v. York, 26 Me. 167. 
 
 9T Wodell V. Coggeshall, 2 Met. 89. 
 
 98 Campbell v. Campbell, 3 Stockt. 268. 
 
 89 McCloskey v. Cyphert, 27 Penn. St. 220. 
 
 1™ Taunton v. Plymouth, 15 Mass. 203; Aldrich v. Bennett, 63 
 N. H. 415 ; 56 Am. Eep. 529. 
 101 VT'hite e. Henry, 24 Me. 531. Contra : Aldrich v. Bennett, supra. 
 l»ii Bray v. Wheeler, 29 Vt. 514. 
 "3 Chase v. Elkins, 2 Vt. 290. 
 1"^ See note 46, supra. 
 
 1"* See note 51, supra; Suckmau v. Wood, 25 Cal. 147. 
 we Note, 35 Am. Rep. 121. 
 
EIGHTS OF CHILDEEN. 87 
 
 fruits thereof does not revoke or annul the emanci- 
 pation.^"® The father's duty to support the child 
 revives if the child becomes unable to support him- 
 self.i"'^ Emancipation is not presumed where the 
 child leaves home without consent, the father being 
 able and willing to provide for him.^"^ 
 
 After Majority. — If the child continues with the 
 parent, the family relation is presumed to continue, 
 and the child cannot recover for services to the par- 
 ent without proof of an agreement or understand- 
 ing for compensation.^*'* But circumstances showing 
 an unusual burden assumed by the child, or special 
 advantages reaped by the father, are sometimes con,- 
 strued in the child's favor .^i" Where an adult child 
 occupies the parents' real estate, an agreement to pay 
 rent is presumed, but is easily rebutted.^'^ 
 
 Voluntary Conveyances. — The rules concerning 
 gifts and voluntary conveyances to children are 
 much the same as in the case of husband and wife. 
 If a son purchases and stocks a farm as a home for a 
 poor father, who works it, the products are not sub- 
 ject to attachment as the son's property."^ If the 
 parent permits the/ child to receive and invest his 
 earnings they belong to the child.^^^ 
 
 Constructive Fraud. — As has been said, a benefit 
 
 M8 Jenny v. Alden, 12 Mass. 375 
 1°' Clark V. Pitch, 2 Wend. 463. 
 108 Angell V. McLellau, 16 Mass. 28. 
 1™ Lipe V. Eisenlerd, 32 N. Y. 229. 
 "0 House V. House, 6 Ind. 60. 
 Ul Oakes v. Oakes, 16 111. 106 
 
 112 Brown v. Scott, 7 Vt. 57. 
 
 113 Campbell v. Campbell, 3 Stockt. 268. 
 
88 THE DOMESTIC KELATIONS. 
 
 from child to parent in or near minority is jealously 
 and suspiciously regarded, on account of the pre- 
 sumed influence and control. Not so of a benefit 
 from parent to child, iu the absence of proof of 
 inequality, undue influence, or fraud."* 
 
 Advancements. — In England large sums of money 
 and valuable chattels and real estate delivered and 
 conveyed by the parent to the child are reckoned as 
 advancements, to be deducted from the child's dis- 
 tributive share in the parent's estate, unless shown 
 to be gifts.-'^* Not so of small sums for ornaments, 
 education, and the like.^^® In this country generally 
 nothing is reckoned as an advancement unless proved 
 to have been so intended at the time,"'^ and that 
 intention cannot afterwards be changed without the 
 child's consent. Money et cetera given to a son-in- 
 law is not presumed an advancement."** The amount 
 of an insurance on the father's life for the benefit of 
 the child, and the premiums paid by him therefor, 
 have been held an advancement."^ The subject is 
 regulated by statute in some States. 
 
 The child may sell his expectancy,^2o jj^j; -jvhether 
 he may release it to his parent is doubted. '^i 
 
 "* Jenkins u. Pye, 12 Pet. 2.53; Cowee v. CorneU, 75 N. Y. 91; 
 31 Am. Rep. 428. 
 
 116 Smith V Smith, 3 Gif. 263. 
 
 ™ Miller's Appeal, 40 Penn. St. 57. 
 
 1'^ Osgood V. Breede's Heirs, 17 Mass. 356. 
 
 1'^ Ex parte Oakey, 1 Brad. 281 ; McClure v. Evans, 29 Beav. 422 ; 
 Rains v. Hays, 6 Lea, 303 ; 40 Am. Rep. 39. 
 
 "9 Rickenbacker v. Zimmerman, 10 S. C. 110; 30 Am. Rep. 37. 
 
 120 Curtis V. Curtis, 40 Me. 24. 
 
 121 Robinson v. Robinson, Brayt. 59. 
 
ILLEGITIMATE CHILDREN, 
 
 ILLEGITIMATE CHILDREN. 
 
 At common law a bastard has very few rights. 
 He is nulUus filius. He is incapable of being heir 
 to any one. He can have no heirs save of his own 
 body. He has no name except from reputation. 
 
 In this country the general rule is that he and his 
 mother can mutually inherit. Under our laws the 
 father can be compelled to support his illegitimate 
 child, but there was no such liability at common law. 
 The father is not bound to support his bastard child 
 if the mother during pregnancy marries another who 
 knows her condition. i^^* A voluntary promise by 
 father to mother to support the bastard is invalid.^^^t 
 
 The mother is its natural guardian, bound to sup- 
 port it, and entitled to its custody as against the 
 father.122 
 
 An illegitimate child may take by purchase if suf- 
 ficiently described, and in this country generally by 
 will. Even a devise to an unborn illegitimate child 
 in being is good.^^ A voluntary settlement in fa- 
 vor of an illegitimate child has been upheld and 
 enforce d.^^* 
 
 Ml* Miller v. Anderson, 43 Ohio St. 473; 54 Am. Ttep. 823. 
 I2it Mercer v. Mercer's Admr., Ky., 37 Alb. L. J. 367. 
 
 122 Eobalina v. Armstrong, 15 Barb. 247 ; Queen v. Nash, 10 Q. B. 
 Dir. 454. 
 
 123 Knye v. Moore, 1 Sim. & Stu. 61. 
 12* Gardner v. Heyer, 2 Pai. 11. 
 
CHAPTER VIII. 
 
 GUARDIAN ANB "WAED. 
 
 A GTJAKDiAN is a person entrusted with the 
 interests of a minor, whose youth and inexperience 
 disqualify him from acting for himself, and who 
 is called the ward. 
 
 Guardians at common law are of three kinds: 
 by nature, by nurture, and by socage. Testamen- 
 tary guardians were created by statute. 
 
 Guardians by nature and by nurture are really 
 the same in character and powers. They are 
 always the parents ; first the father, and on his death 
 the mother. The office of natural guardian lasted 
 through minority; that by nurture ceased at four- 
 teen. This authority extended only to person, and 
 not to property. 
 
 Guardianship by socage arose when an infant 
 under fourteen acquired title to real estate, and 
 was designed to protect it. This guardian took 
 possession of the heir's person and real estate, and 
 received the rents and profits until the infant 
 became fourteen. The office belonged without 
 appointment to the next of kin incapable of inherit- 
 ing from the ward. This guardianship has become 
 disused. 
 
 A testamentary guardian was one appointed by 
 'the father's last Avill, who- took the ward's person 
 
APPOINTMEKT. 91 
 
 and entire estate from every source. This guar- 
 dianship was created by statute of Charles II. It 
 was unknown to the common law. 
 
 In addition there was the chancery guardian 
 appointed by the equity court whenever an infant 
 was brought by suit into that court, but generally 
 only where he had property. 
 
 In this country this subject is generally regulated 
 "by statute. The right of appointing a testamentary 
 guardian is generally recognized and limited to the 
 father. 
 
 APPOINTMENT. 
 
 Guardians are appointed either by the parent or 
 a court. 
 
 1. By the parent. — Generally the father has 
 first right, and on his death without appointment 
 the mother may appoint. A grandfather canno;t 
 appoint.^ 
 
 The appointment must be in writing, generally 
 by deed or will. But where a father, shortly 
 before death, committed and surrendered his chil- 
 dren to a charitable institution, pursuant to its 
 charter, by a witnessed writing, it was held a good 
 appointment, although neither a deed or will.^ 
 
 Neither a firm nor a mere corporation can be 
 guardian.^ 
 
 1 Hoyt V. Tilton, 2 Edw. 202. 
 
 2 People V. Kearney, 31 Barb. 430. 
 ' De Mazar v. Pybus, 4 Ves. 644. 
 
92 THE DOMESTIC EBLATIONS. 
 
 2. By the court. — Generallj', on arriving at the 
 age of fourteen, the infant, if there is no guardian 
 by deed or will, or such guardian declines or is 
 disqualified, may have his guardian appointed by 
 the court. This appointment is regulated by 
 statutes and rules. This guardian is called the 
 general guardian. The father will usually be 
 appointed, in the absence of any valid objection, 
 but relatives or strangers may be appointed. The 
 wishes of deceased parents may be consulted. The 
 infant's own preference will have weight, but will 
 not be conclusive. The appointment is always 
 within the discretion of the court, and will be made 
 for the infant's best interests. 
 
 Cruardianship how terminated. — Guardianship is 
 terminated by the majority, death, or marriage of 
 the ward ; by death, resignation, or removal of the 
 guardian ; or if the guardian is a woman, by her 
 marriage ; or by the expiration of the term of one 
 appointed by deed or will for a period short of 
 minority. 
 
 Marriage of the ward terminates the power of 
 the guardian over the person of the ward of either 
 sex. As to property, the guardian of a male ward 
 retains his power notwithstanding the marriage ; 
 but as to a female ward, under the modern 
 married woman's acts, it is variously held.* Where 
 wards intermarry, it is a question whether the 
 wife's guardian retains his control of her property, 
 
 * Brick's Estate, 15 Abb. Pr. 12; Matter of Herbeck, 16 Abb. Pr. 
 
 (N. S.) 214. 
 
APPOINTMENT. 93 
 
 or it goes to the husband, and consequently under 
 the power of his guardian. But at all events an 
 order of court is necessary to transfer the wifei's 
 estate.^ 
 
 On death of a guardian another may be appointed, 
 or the survivor, if any, named by deed or will, will 
 succeed. If two or more were appointed, the sur- 
 vivors will succeed. 
 
 Natural guardians and guardians in socage cannot 
 resign, nor generally guardians by will.'^ Probably 
 all guardians who have once accepted must serve 
 until released by the court. 
 
 Any guardian may be removed for abuse of his 
 trust. Some statutes add incompetency, and removal 
 or intent to remove from the State. Natural guar- 
 dians and guardians in socage are simply superseded. 
 The main causes for removal generally are : appoint- 
 ment without due notice; gross and confirmed 
 intoxication; any official misconduct; abandonment 
 of the trust ; ignorance, or imprudence, or waste ; 
 imprisonment for crime ; bankruptcy. But mere 
 insolvency will not suffice.^ 
 
 At common law, marriage of a female guardian 
 terminates the guardianship, and transfers it to the 
 husband. If marriage does nof put an end to her 
 authority under the modern married woman's acts, 
 it probably couples the husband in the trust. 
 
 6 Whitaker's Case, 4 Johns. Ch. 378. 
 
 8 People V. Byron, 3 Johns. Cas. 53. 
 
 ' Ex parte Crumb, 2 Johns. Ch. 439. 
 
 8 Chew's Estate, 4 Md. Ch. 60; Cooper's Case, 2 Pai. 34. 
 
94 THE DOMESTIC RELATIONS. 
 
 EIGHTS AND DITTIES OP 6XJAEDIAN. 
 
 These relate to person and estate. 
 
 1. Rights as to Person. — The guardian is entitled 
 to the custody of the ward's person subject to the 
 regulation of the court. Where a person other than 
 the parent is appointed, his right is superior even to 
 that of the parent, for ordinarily the parent is 
 appointed unless uniit.^ But access will be granted 
 to the parents under proper restrictions. The guar- 
 dian may change the domicile of the wai"d within 
 the State,^** or without ;" but an improper removal 
 of the ward from the State may be restrained by 
 the court.^2 If however the guardian is the parent, 
 he may exercise the power of removal unrestricted.^^ 
 The guardian may recover the person of the ward 
 from one unlawfully detaining him.^* He may 
 select the place of the ward's education. He may 
 bind his ward to apprenticeship. He may warn 
 away and forcibly expel improper associates.^^ 
 
 The guardian is not entitled to his ward's ser- 
 vices. Consequently he cannot maintain an action 
 for seduction of his female ward.^^ 
 
 ° Senseman's Appeal, 21 Penn. St. 331. 
 
 1° Ex parte Bartlett, 4 Bradf. 221. 
 
 " 2 Kent Com. 227. 
 
 12 Wilcox V. "Wilcox, 14 N. Y. 575. 
 
 18 Pottinger v. "Wightman, 3 Mer. 67 ; Holyoke v. Haskins, 5 
 Pick. 20. 
 
 " Ex parte Dawson, 3 Bradf. 130. 
 
 w -Wood V. Gale, 10 N. H. 247. 
 
 w Blanchard v. Ilsley, 120 Mass. 487 ; 21 Am. Rep. 535. But 
 contra, Fernsler u. Moyer, 3 W. & S. 416. 
 
EIGHTS AND DUTIES OP GUARDIAN. 95 
 
 2. Duties as to Person. — These are protection, edu- 
 cation, and maintenance.^®* 
 
 The guardian is bound to maintain the ward only 
 from the ward's own estate. In supplying his wants 
 he must consult his income. If necessary he may 
 place him at work, or, if he is too young and feeble, 
 may entrust him to some charitable institution.^^t 
 
 Oi'dinarily, therefbre, the guardian will not be per- 
 sonally liable for the ward's maintenance, but he may 
 make himself liable by contract express or implied, 
 as by failure to limit the right of indemnity to the 
 estate in his hands.^'^ 
 
 No guardian may expend more than the income of 
 his ward's estate without consent of the court, ex- 
 cept in case of imperative and sudden necessity ; 
 but the court may afterwards ratify his doing so.^^ 
 
 The order of expenditure is, first, the interest or 
 income ; next, the principal of personalty ; and last, 
 the real estate ; but the latter can never be sold ex- 
 cept by order of the court and for the purpose of 
 maintenance.^® 
 
 But capital will never be encroached upon except 
 in case of necessity, as sickness, inability to labor, or 
 to finish education. The guardian may, however, 
 
 16* The guardian is liable in damages for his ndglect to clothe the 
 ward. Nelson v. Johansen, 18 Neb. 180; 53 Am. Eep. 806. 
 
 i^t As to when the guardian will be reimbursed for support. In re 
 Besondy, 32 Minn. 385 ; note, 57 Am. Dec. 223 ; State v. Slevin, 93 
 Mo. 253 ; 3 Am. Eep. 526. 
 
 " Hutchinson v. Hutchinson, 19 Vt. 437. 
 
 18 In re Bostwick, 4 Johns. Ch. 100. 
 
 19 Strong V. Moe, 8 Allen, 125. 
 
96 THE DOMESTIC KELATIONS. 
 
 anticipate income to supply a casual deficiency,^'' or 
 treat an increase of value as income,^^ or use accu- 
 mulated profits when necessary. He has a large dis- 
 cretion in expenditure not encroaching on the capi- 
 tal,^ and he may resort to the income of the entire 
 property wherever situated.^ "" 
 
 The father, when guardian, may not use his child's 
 income or principal except by authority of the court, 
 being ordinarily bound himself to support the child. 
 
 The guardian is presumed to furnish necessaries, 
 and a stranger furnishing them must generally con- 
 tract with the guardian.^* But the party furnishing 
 is not bound to see that payment is made from the 
 ward's income ; that is the guardian's risk.^s 
 
 EIGHTS OP FOREIGN GUARDIAN AS TO PERSON. 
 
 In England, the claim of a foreign guardian to the 
 ward's person is not regarded, but a guardian will 
 there be appointed.^^ Recently, however, a foreign 
 guardian whose ward was being educated in England 
 was allowed to remove him to his own country.^ But 
 the paternal right of removal is there recognized, 
 and this is so in this country .^^ But in the Ameri- 
 go Bybee v. Tharp, 4 B. Mon. 313. 
 
 21 Long V. Norcom, 2 Ired, Eq. 354. 
 
 "2 Brown v. MuUins, 24 Miss. 204. 
 
 28 Foreman v. Murray, 7 Leigh, 412. 
 
 2* State V. Cook, 12 Ired. 67. 
 
 26 Broadus v. Eosson, 3 Leigh, 12. 
 
 28 Ex parte Watkins, 2 Ves. Sr. 470. 
 
 2' Nugent V. Vetzera, L. E. 2 Eq. 704. 
 
 28 Townsend v. Kendall, 4 Minn. 412. 
 
EIGHTS AND DUTIES OF GUARDIAN. 97 
 
 can States the rights and powers of guardians are 
 regarded as strictly local.^^ 
 
 EIGHTS AND DUTIES OF GUARDIAN AS TO "WARD'S 
 ESTATE. 
 
 There are two leading principles : — 
 
 1. Unauthorized acts of the guardian will be sanc- 
 tioned if they are beneficial to the ward, but if det- 
 rimental, the guardian alone must suffer. 
 
 2. The guardian is not permitted to reap any per- 
 sonal benefit from the use of the ward's estate, nor 
 from any bargain or transaction relating to it. 
 
 The guardian must receive, collect, invest, and 
 generally manage the ward's estate, pay the neces- 
 sary expenses of his ward's protection, education, 
 and support, and account for his trust.^s* 
 
 He may lease,^ and may discharge a mortgage.^* 
 He may sue for debts,^^ compromise, release, or sub- 
 mit to arbitration.^^ If he imprudently 'brings an 
 unsuccessful suit, he is personally to bear the costs.. 
 He may compromise a suit and release a debt, but, 
 not imprudently or fraudulently. He cannot release 
 a benefit to which his ward is entitled by decree.^ 
 
 29 Morrell v. Dickey, 1 Johns. Ch. 153. 
 
 29* Taking a note payable to a former guardian individually, as 
 part of the estate, he does it at his own risk. State v. Greensdale, 
 106 Ind. 364; 55 Am. Kep. 753. 
 
 8» Emerson v. Spicer, 46 N. Y. 594. 
 
 81 Chapman v. Tibbitts, 33 N. Y. 289. 
 
 8-2 Smith V. Bean, 8 N. H. 15. 
 
 »s Weed v. Ellis, 3 Cai. 253. 
 
 s» Hite V. Hite, 2 Band. 409. 
 
 1 
 
98 THE DOMESTIC RELATIONS. 
 
 He cannot by general contract bind his ward's 
 estate,^* nor avoid a beneficial contract made by his 
 ■ward.^^ He is personally bound by his own contract 
 for his ward, even for necessaries,^" but not for his 
 ward's own breach of contract.^ And the guardian 
 is entitled to reimbursement out of the ward's estate 
 for all contracts fairly made, and for all necessary 
 expenditures. His promise to pay his ward's debt is 
 valid, although not in writing.^^ 
 
 Although he has no right to purchase the ward's 
 property, yet such purchase is not absolutely void, but 
 the ward may affirm it at majority.*" He may not 
 even in good faith sell his own property to his ward, 
 and the ward may recover the purchase price paid.*"* 
 
 He must not apply exempt property to his ward's 
 debts. He must not mingle his ward's money with 
 his own, nor invest it in his own business ; ^^ but if 
 he lends his ward's money and his own to the same 
 person upon the same security, acting in good faith 
 and with due care, he is not liable for loss.*^ 
 
 He is not liable for unfortunate investments care- 
 fully made, nor for moneys lost by robbery without 
 his fault. Yet he is liable for moneys robbed unless 
 
 '5 Jones V. Brewer, I Pick. 317; EoUins v. Marsh, 128 Mass. 116. 
 '3 Oliver v. Houdlet, 13 Mass. 237. 
 
 •'' Simms v. Norris, 5 Ala. 42; KoUins v. Marsh, 128 Mass. 116. 
 ^' Velde V. Severing, 2 Eawle, 269. 
 »9 Roche V. Chaplin, 1 Bailey, 419. 
 « Bostwick V. Atkins, 3 N. Y. 53. 
 <"* Hendee v. Cleveland, 54 Vt. 142. 
 *i State ex rel. v. Sanders, 62 Ind. 562 ; 30 Am. Eep. 203. 
 *2 Barney v. Parsons, 54 Vt. 623 ; 4I Am. Eep. 858 ; Lamar v. Mi- 
 cou, 104 U. S. 465 ; State v. Slevin, 93 Mo. 253 ; 3 Am. St. Eep. 526. 
 
EIGHTS AND DUTIES OF GUAEDIAN. 99 
 
 he takes pains to recover them.** And for fraud or 
 negligence he is liable, and so for loss by ignorance 
 of his duty. But he is liable to account only for 
 property accessible to him. 
 
 Innocent third parties are not affected by his 
 fraud. Others will be held as trustees. But if they 
 neglect to make reasonable inquiries they will be 
 liable for loss by their imprudence.** So if a legacy 
 charged on land and payable at majority is paid be- 
 fore to the guardian, the land will be liable until 
 the ward actually receives the money.*^ One who 
 takes the ward's property in payment of the guar^ 
 dian's debt, knowing the trust, must refund to the 
 ward unless the guardian accounts.*^ 
 
 Where a guardian buys land for himself, upon 
 his own credit and in his own name, and afterwards 
 uses his ward's money to pay for it, his ward gets 
 no resulting trust in the land.*' 
 
 As to Real Estate. — The guardian may lease the 
 land, execute deeds when judicially authorized, col- 
 lect and sue for rent, and bring ejectment and tres- 
 pass. He is personally liable for neglect herein, and 
 for occupancy of the land himself, or for suffering 
 the land to remain unoccupied. He may lease for a 
 term longer than his trust, and such a lease is only 
 void at his ward's election at majority.*^ He may 
 
 *' Matter of Jackson, 1 Tucker, 71. 
 
 « Gale V. Wells, 12 Barb. 84. 
 
 « Cate V. Gentry, 28 Ga. 327. 
 
 « McDuffie V. Mclntyre, 11 S. C. 551 ; S2 Am. Rep. 500. 
 
 «' French v. Sheplor, 83 Ind. 266 ; 43 Am. Rep. 67. 
 
 «8 Putnam v. Ritchie, 6 Pai. 390. 
 
100 THE DOMESTIC RELATIONS. 
 
 hire land. He may grant an easement or lioense, 
 institute partition, assign dower. He should repair, 
 but must not make improvements without author- 
 ity of the court. He should keep the buildings in- 
 sured. 
 
 As to Personal Estate. — The guardian should 
 reduce it to possession.*^* Money should be deposited 
 in bank, to his account as guardian, until invested:. 
 If he deposits to his own account he is liable for its 
 loss. He has a reasonable time to collect debts and 
 demands. He must contest all improper claims. He 
 must not suffer his ward's money to remain idle, but 
 may keep on hand a reasonable amount for expenses. 
 Testamentary guardians should follow the directions 
 of the will for investment, and in so doing are not 
 liable for loss. Investments generally must be made 
 upon real estate security or in public stocks, but 
 small sums may be deposited in savings banks. For 
 loss upon investments made on other security the 
 guardian is personally liable. When the guardian 
 unreasonably neglects to invest he is liable for in- 
 terest, and, in cases of misconduct, for compound 
 interest. If he speculates with the trust fund, he. is 
 liable for the profits and compound interest. If he 
 loses the ward's mone}' by a usurious loan, he is 
 liable for principal and interest. 
 
 In general, the guardian, if he has acted in good 
 faith and according to his best judgment, will not be 
 
 *8* He may not convert personalty into realty without the previous 
 sanction of the court. Boisseau v. Boisseau, 79 Va. 73; 52 Am, 
 Rep. 516. 
 
BIGHTS AND DUTIES OF GUAEi>iAN. 101 
 
 strictly held for losses, although he did not exercise 
 all the promptitude and skill which the occasion 
 demanded. 
 
 Suits. — Generally the guardian must sue in his 
 ward's name. But ejectment must be brought in 
 his own name.*^ Generally, if unsuccessful, he is 
 entitled to his costs and expenses out of the ward's 
 estate, but not so in groundless, speculative, fraudu- 
 lent, or imprudent suits. If he is appointed guardian 
 ad litem in a particular suit, and is by statute liable 
 for costs, and is compelled to pay them, he has his 
 remedy against the ward's estate if he has not mis- 
 conducted. Joint guardians may sue jointly. 
 
 Joint Guardians. — The receipt or discharge of 
 one binds all. Neither can act in defiance of the 
 other. Each is liable for the other's misapplication 
 of the trust funds with his consent, but otherwise, in 
 the absence of negligence, is liable only for what he 
 receives.®" 
 
 Guardian in Fact. — One who acts as guardian is 
 liable as such ; as a step-father,^^ or one irregularly 
 appointed.^ But not an executor or administrator 
 in lawful possession of the minor's property.^ One 
 appointed is liable for acts before qualifying,^ and 
 after the ward's majority so long as he retains the 
 estate .5® 
 
 « Holmes v. Seely, 17 Wend. 75. 
 M Kirby v. Turner, Hopkins, 309. 
 " Espey V. Lake, 15 Eng. L. & Eq. 579. 
 62 Crooks V. Turpin, 1 B. Mon. 183. 
 ra Bibb V. McKinley, 9 Port. 636. 
 " Magruder v. Darnall, 6 Gill, 269. 
 55 Armstrong v. Walkup, 12 Gratt. 608. 
 
102 THE DOMESTIC BELATIONS. 
 
 Rights of Foreign Guardians as to Property. — 
 As to real estate, the law of the country where it 
 is situated must govern. It is held that a foreign 
 guardian is not entitled to personal property situated 
 in another State.^^ This is the general rule. In the 
 absence of statutory authority a guardian cannot 
 maintain an action abroad.^^ On principles of com- 
 ity foreign guardians are sometimes recognized, but 
 not without reciprocity. So where an English court 
 refused to award the custody of a minor to his 
 American guardian, our court refused to recognize 
 the decree of the English court that the American 
 guardian should transmit the income of the ward's 
 property to England.^^ 
 
 A guardian may be personally liable for the sup- 
 port and education of his ward, left by his consent 
 with a guardian in another State.^* 
 
 Sale of Real Ustate. — Tliis is regulated by statute.. 
 The court of chancery possessed no inherent power 
 to order sale of an infant's real estate.^" So of our 
 own courts.^i And whenever a sale was author- 
 ized it was subject to his right of disaflBrmance 
 at majority. But the legislature might always or- 
 der a sale, and therefore statutory authority for 
 
 ^ Morrell v. Dickey, 1 Johns. Ch. 153. 
 
 " Leonard v. Putnam, 51 N. H. 247 ; 12 Am. Rep. 106. 
 
 ^8 Ex parte Dawson, 3 Bradf. 130. 
 
 '^ Spring V. Woodworth, 2 Allen, 206. 
 
 «» Taylor v. Phillips, 2 Ves. Sr. 23. 
 
 '1 Baker v. Lorillard, 4 N. Y. 257. Contra : Dodge v. Cole, 97 HI. 
 338; 37 Am. Eep. HI; Goodman •;. "Winter, 64 Ala. 410; 38 Am. 
 Rep. 13. 
 
EIGHTS AND DUTIES OP GUARDIAN. 103 
 
 such sales is valid, and such sales confer absolute 
 title.62 
 
 Generally such sales are authorized when necessary 
 for the infant's support or education ; or his interest 
 requires or will be promoted thereby on account of 
 the land being waste, dilapidated, or unproductive ; 
 or for any other peculiar reasons. This power in- 
 cludes letting for a term of years and mortgaging, 
 and mortgaging will always be preferred if sufficient 
 for the purpose, but no sale or lease may be made 
 contrary to the provisions of a devise by which the 
 infant acquired his interest. The sale is made by a 
 guardian specially appointed, who must give secu-. 
 rity. The proceeds are deemed real estate, and go 
 to the general guardian, to be disposed of as the 
 court shall direct. 
 
 To confer valid title, the statutory directions must 
 be strictly pursued as to all essentials. 
 
 It has been held that these statutes, unless it is 
 otherwise specially provided, apply only to sales of 
 legal interests, and tliat independently the court 
 may order sales of equitable estates.^* 
 
 A guardian has an authority coupled with an 
 interest, and therefore an act of the legislature 
 empowering another to dispose of the estate is 
 unconstitu tional .^ 
 
 The bond, accounting, and compensation of the 
 guardian are regulated by statute. 
 
 62 Leggett V. Hunter, 19 N. Y. 445. 
 
 63 Wood V. Mather, 38 Barb. 473. 
 
 M Lincoln v. Alexander, 52 Cal. 482 ; 28 Am. Eep. 639. 
 
104 THE DOMESTIC BELATIONS. 
 
 EIGHTS AND LIABILITIES OP THE WARD. 
 
 The ward may restrain his guardian from com- 
 mitting waste, but whether he may sue him during 
 the guardianship has been recently denied.^** He 
 certainly cannot sue him for money had and re- 
 ceived, but must remove him and resort to his 
 official bond. 
 
 On the termination of the guardianship he may 
 sue him for an accounting, but he may lose this 
 right by delay. He must move in a reasonable 
 time. 
 
 He will always receive the aid of the court in 
 recovering property embezzled, concealed, or con- 
 veyed away in fraud of his rights. He may within 
 a reasonable time after majority disaffirm a purchase 
 of his property made by his guardian. 
 
 A settlement between guardian and ward before 
 or shortly after majority is carefully scrutinized by 
 the courts, and the ward will be protected against 
 any unfair or unequal dealing.^® But long acquies- 
 cence will debar the ward from impeaching it as 
 against the guardian's surety, although the guardian 
 is insolvent.®^ 
 
 A gift or conveyance from ward to guardian 
 during or shortly after majority is presumed fraudu- 
 lent, and will not be sustained except on the clear- 
 est proof of the utmost good faith.^^ This applies 
 
 6'* McLane v. Curran, 133 Mass. 531. 
 
 66 Ferguson v. Lowry, 54 Ala. 510; 25 Am. Eep. 718, and note, 728. 
 
 66 Aaron v. Mendel, 78 Ky. 427 ; 39 Am. Rep. 248. 
 
 " Hylton V. Hylton, 2 Ves. Sr. 547. 
 
EIGHTS AND LIABILITIES OF THE WARD. 105 
 
 to any one in loco parentis.^^ So where the late 
 guardian procured the accommodation indorsement 
 of his late ward on notes which parties took with 
 notice of the fiduciary relationship, those parties 
 were enjoined from resorting to the indorser.^^ But 
 a voluntary will by the ward in the guardian's favor 
 is not within this rule.™ 
 
 In England a chancery ward could not marry 
 without consent of the court, but this doctrine never 
 obtained here. But here, if a ward's property is 
 under control of a court of equity, a provision may 
 be made in case of an improvident marriage.'^^ 
 
 An infant is not liable for his guardian's malicious 
 suit in his behalf, not originally authorized by the 
 infantJ^ 
 
 «8 Berkmeyer v. Kellerman, 32 Ohio St. 239 ; 30 Am. Rep. 577. 
 
 69 Gale V. Wells, 12 Barb. 84. 
 
 '» Limburger v. Eauch, 2 Abb. Pr. (N. S.) 279. 
 
 71 Van Duzer v. Van Duzer, 6 Pai. 366. 
 
 '2 Bnrnham v. Seaverns, 101 Mass. 360. 
 
CHAPTER IX. 
 
 INFANCY. 
 
 An infant is any person, male or female, under 21 
 years of age. 
 
 GENERAL DISABILITIES OF INFANTS. 
 
 1. Holding Office. — Generally an infant cannol 
 hold any office of pecuniary or public responsibility.^ 
 He cannot be an administrator, executor, or trustee, 
 nor an attorney, bailiff, factor, or receiver. He can- 
 not now hold a legislative office, although in ancient 
 times minors sat in Parliament. He cannot hold 
 judicial office, such as justice of the peace.^ He can- 
 not be a juror nor an attorney at law. But he may 
 be a notary public.^ 
 
 2. As to Crimes. — An infant under 7 is conclu- 
 sively deemed incapable of crime ; between 7 and 14 
 prima facie so ; and above 14 prima facie capable.* 
 But an infant under 14 is generally held incapable of 
 committing rape.^ In New York, Ohio, and Louisi- 
 ana, however, this presumption may be rebutted.^ 
 
 1 Claridge v. Evelyn, 5 B. & Aid. 81. 
 
 2 Golding's Petition, 57 N. H. 146 ; 24 Am. Eep. 66. 
 8 U. S. u. Bixby, 9 Fed. Rep. 78. 
 
 4 Bish. Cr. L., § 460. 
 
 6 Ibid., §§ 466, 672. 
 
 6 People V. Eandolph, 2 Park. Cr. 213. 
 
GENERAL DISABILITIES OF DTFANTS. 107 
 
 3. As to Testifying. — An infant under 14 is pre- 
 sumed incompetent to testify, but there is no precise 
 age at which he is excluded. One of 6 years lias 
 been permitted to testifyJ Above 14 he is presumed 
 competent, but may be shown not to be. The test 
 is his capacity to understand the nature of an oath. 
 
 4. As to Wills. — At common law an infant' cannot 
 devise, but may make a will of personal property at 
 14, if a male, and at 12, if a female. 
 
 6. As to Contracts. — Formerly a distinction was 
 recognized between, void contracts and voidable con- 
 tracts of an infant. Some were deemed absolutely 
 void without disaffirmance at majority, while others 
 were deemed binding unless so disaffirmed. It was 
 early held that where the court can see that a con- 
 tract is for the benefit of the infant it is bind- 
 ing; where it can see that it is to his prejudice it 
 is void; where it is uncertain, it is voidable only.^ 
 This rule is approved by Story ,^ and by Kent.^" 
 
 But the modern doctrine pronounces all his con- 
 tracts, except those for necessaries and those void as 
 between adults-, voidable only.^^ 
 
 ' State V. Ritchie, 28 La. Ann. 827 ; 26 Am. Kep. 100. See Car- 
 ter V. State, 63 Ala. 52 ; 35 Am. Rep. 4. 
 
 8 Keane v. Boycott, 2 H. Bl. 511. 
 
 9 U. S. V. Bainbridge, 1 Mason, 82. 
 
 10 2 Kent Com. 236 ; Green v. Wilding,'59 lo. 679 ; 44 Am. Rep. 696.* 
 
 11 Earner v. Dipple, 31 Ohio St. 72 ; 27 Am. Rep. 496 ; Owen v. 
 Long, 112 Mass. 403; Williams v. Moor, 11 M. & W. 266; Touch w. 
 Parsons, 3 Barrow, 1794; Whitney v. Dutch, 14 Mass. 457; Reed 
 V. Batchelder, 1 Meto. 559; Curtin v. Patton, 11 S. & R. 305; Hinely 
 V. Margaritz, 3 Barr. 428; Ratchin v. Cromach, 13 Vt. 330; Vaughn 
 
108 THE DOMESTIC, EELATIONS. 
 
 An infant's contracts therefore differ from those of 
 a married woman, at common law, the latter being 
 absolutely void. 
 
 But infancy is a personal privilege. The adult 
 is always bound, although the infant may retract. 
 Thus, although a minor is not bound by his promise 
 to marry an adult, yet the adult is bound .^ So a 
 third person, not a party to the contract, cannot 
 take advantage of the infancy of a party; as an 
 indorser, or surety, or one sued for enticing away an 
 infant servant.^^ But others are not bound to con- 
 tract with an infant; so an auctioneer is not bound 
 to accept his bid.^* An indorser of an infant's note 
 is not bound without demand of the maker.^* But 
 the right of avoidance extends to representatives 
 and privies; so an administrator may avoid his 
 infant intestate's contract.^® 
 
 An infant cannot bind himself by confession of 
 judgment,^'' nor by agreement to arbitrate.^^ He 
 may revoke his gift of personal property.!^ 
 
 V. Parr, 20 Ark. 600 ; Shropshire v. Burns, 46 Ala. 108 ; Fetrow v. 
 Wiseman, 40 Ind. 148 ; Fonda v. Van Home, 15 Wend. 631 ; Scott 
 V. Buchanan, 11 Humph. 468; Cole v. Pennoyer, 14 111. 168; Cum- 
 mings V. Powell, 8 Tex. 80; IJ. J. Marsh, 236; Mustard v. Wohl- 
 ford, 15 Gratt. 329. 
 
 12 Holt V. Ward, 2 Str. 937. 
 
 w Motteux V. St. Aubin, 2 W. Bl. 1133. 
 
 1* Kinney v. Showdy, 1 Hill, 544. 
 
 15 Wyman v. Adams, 12 Cush. 210; Trustees v. Anderson, 63 
 Ind. 367. 
 
 1^ Counts V. Bates, Harp. 464. 
 
 " Oliver «. Woodroffe, 4 M. & W. 653. 
 
 18 Barnaby v. Barnaby, 1 Pick. 221. 
 
 w Person v. Chase, 37 Vt. 647. 
 
CONTRACTS BINDING THE INT? ANT. 109 
 
 His executed contract is voidable as well as his 
 executory contract; lie may rescind the one as well 
 as the other.* 
 
 CONTRACTS BINDING THE INFANT. 
 
 Necessaries. — The infant may bind himself by his 
 contract for necessaries. 
 
 An infant's contracts are judged by the same rules 
 as those of a married woman, and are the same with 
 one addition — education. 
 
 What are necessaries for an infant: Presents to 
 his bride: Genner v. Walker, 3 Am. L. Rev. 590. 
 Wedding garments when about to marry: Sams v. 
 Stockton, 14 B. Monr. 232. A bridal outfit and a 
 chamber set: Jordan v. Cofl&eld, 70 N. C. 110. A 
 imiform for an officer's servant: Hands v. Staney, 8 
 T. R. 578. Counsel fees about his business: Mun- 
 son V. Washband, 31 Conn. 303 ; as for defending 
 him in a bastardy proceeding: Barker v. Hibbard, 
 54 N. H. 639; 20 Am. Rep. 160; or in a proper 
 divorce suit for his wife : Stocken v. Pattrick, 29 L. 
 T. (N. S.). Dentistry: Strong v. Foote, 42 Conn. 
 203. Regimentals for a member of a volunteer 
 corps: Coates v. Wilson, 5 Esp. 152. A pair of 
 spurs, a suit of best kersey-made horse-clothing, a 
 breastplate, and a set of best plated harness, for an 
 infant of some expectations, who managed his 
 father's farm: Hill v. Arbon, 34 L. T. (N. S.) 125. 
 A horse prescribed for exercise: Hart v. Prater, 1 
 
 20 Hill V. Anderson, 5 S. & M. 216. 
 
110 THE DOMESTIC RELATIONS. 
 
 Jur. 623. Sleeve-links : Ryder v. WombweU, L. R. 
 3 Exch. 90. 
 
 What are not necessaries for an infant : Treats of 
 an undergraduate at college: Brooker v. Scott, 11 M. 
 & W. 67. A collegiate education : Middlebury Col- 
 lege V. Chandler, 16 Vt. 683. A professional educa- 
 tion: Turner v. Gaither, 89 N. C. 357; 35 Am. Rep. 
 574. A pair of shirt-studs worth £25, and a silver 
 presentation goblet: Ryder v. WombweU, L. R. 3 
 Exch. 90. A stud of horses : Merrain v. Cunning- 
 ham, 11 Cush. 40. Betting books: Gehner v. 
 Walker, 3 Am. L. Rev. 590. Saddles, horses, and 
 carriages : Harrison v. Fane, 1 M. & G. 550. Cock- 
 ades for an officer's whole company: Hands v. Sta- 
 ney, 8 T. R. 578. A tailor's bill of £840 in thirteen 
 months, including nineteen coats, forty-five waist- 
 coats, and thirty-eight pairs of trousers: Barghardt 
 V. Angerstein, 6 C. & P. 690. Kid gloves, cologne, 
 and walking canes: Lefils v. Lugg, 15 Ark. 137. 
 An insurance policy : N. H. Ins. Co. v. Noyes, 32 N. 
 H. 345. Counsel fees about his real estate : Phelps 
 V. Worcester, 11 N. H. 51. Timber to repair his 
 house : Freeman v. Bridger, 4 Jones' L. 1. Tobacco : 
 Bryant v. Richardson, L. R. 3 Ex. 93. A chronom- 
 eter, for a lieutenant in the royal navy: Berolles v. 
 Ramsay, Holt, 77. A pony : Miller v. Smith, 20 A. 
 L. J. 412. A hunter wotth £150, for an infant rep- 
 resenting himself to haVe an allowance of £600 a 
 year. A stanhope for a son of a. clergyman : Char- 
 ters V. Baynton, 7 C. & P. 52. Dinners, game, 
 poultry, suppers, ices, soda water, fruits and confec- 
 
CONTRACTS BINDING THE INFANT. Ill 
 
 tionery, prima facie: Wharton v. Mackenzie, 5 Q. B. 
 606. The old books shut out balls and serenades. 
 
 The doctrine of necessaries does not apply to an 
 infant's trading contracts. So, board of horses of an 
 infant hackman is not a necessary ; ^^ nor is rent of 
 a shop where he carries on the business of a bar- 
 ber.^ 
 
 The infant's contract for necessaries does not bind 
 him when he is sufficiently supplied by his father, 
 mother, or guardian. If he resides at home, prima 
 fade he is not liable ; ^ but if away, he is usually lia- 
 ble.^ And the law will imply a promise where he 
 has no protector.^^ 
 
 An infant is liable for money advanced by another 
 to a third for necessaries for him.^^ It has been held 
 otherwise at law, where the money was advanced 
 directly to the infant, although used by him^ for 
 necessaries.^^ But in equity he is liable.^^ 
 
 Anciently an infant was held bound by his deed 
 for necessaries,^^ but not by his bond.^" Recently 
 his deed for necessaries was held voidable, but he 
 was adjudged to pay the value of the necessaries 
 
 21 Merriam v. Cunningham, 11 Cush. 40. 
 
 22 Lowe V. Griffith, 1 Scott, 458. 
 28 Wailing v. Toll, 9 Joh^s. 141. 
 
 2* Angel V. McLellan, 16 Mass. 28. 
 ^ Hyman v. Cain, 3 Jones L. 111. 
 
 26 Eandall v. Sweet, 1 Den. 460. 
 
 27 Ellis V. Ellis, 5 Mod. 368. 
 
 28 Marlow v. Pitfeild, 1 P. Wms. 558 ; Smith v. Oliphant, 2 
 Sandf . 306. 
 
 29 Com. Dig. Inft. 
 
 85 Corpe V. Overton, 10 Bing. 252. 
 
112 THE DOMESTIC RELATIONS. 
 
 with interest.^1 Whether his note binds him for 
 necessaries has been debated, but undoubtedly he 
 may ratify it at majority. In the best opinion, how- 
 ever, such a note is binding, as an express promise 
 can hardly be less effectual than an implied one.^^ 
 
 In addition, the following contracts of an infant 
 are binding: — 
 
 Executed contracts of marriage. 
 
 For custody and maintenance of wife and chil- 
 dren. 
 
 To bury his wife.^ 
 
 Respecting a legal authority vested in him; as 
 official contracts. 
 
 By statute; such as enlistments. 
 
 Apprenticeship. 
 
 During emancipation. 
 
 An infant is bound by a decree in equity against 
 him, and by any judgment at law founded on an 
 obligation legally binding him. 
 
 EATIPICATION AND AVOIDANCE OF CONTRACT. 
 
 Ratification. — In England the question of ratifi- 
 cation is settled by statute providing that the ratifi- 
 cation to be binding must be in writing signed by 
 the party. 
 
 In this country the authorities are not harmoni- 
 ous. One line of authorities . hold that a direct 
 promise after majority is necessary to establish a 
 
 81 Martin v. Gale, 36 L. T. (N. S.) 357. 
 
 =2 Bradley f. Pratt, 23 Vt. 378. 
 
 «» Chappie V. Cooper, 13 M. & W. 259. 
 
KATIFICATION AST) AVOIDANCE OF CONTEACT. 113'. 
 
 direct contract made during minority, and that at 
 mere acknowledgment will not have that effect.^ 
 But this doctrine is repudiated in later cases, and' 
 the more modern doctrine seems to be that there 
 need not be a precise and positive promise to pay 
 the particular debt, but that an express confirmation 
 and substantial promise, after majority, is suffi- 
 cient.^® 
 
 But what amounts to a tatification has been much 
 mooted. A direct promise to pay would seem to 
 constitute a perfect ratification, but there is much 
 hair-splitting as to what constitutes a direct promise. 
 Some cases hold that where one says he owes the 
 debt, but has not the means to pay it, but will pay 
 it as soon as he can, or words to that effect, this is a 
 mere acknowledgment, not amounting to a direct or 
 new promise.^ 
 
 Without any express promise, the general doctrine 
 is that affirmative acts of ownership and enjoyment 
 of the property, with knowledge of all the circum- 
 stances, or recognition of the validity of the con- 
 tract, without any act or declaration of disaffirmance,, 
 are sufficient; as retaining possession, using, selling,, 
 mortgaging, or converting the property to the in- 
 
 ^ Proctor V. Sears, 4 Allen, 95. 
 
 85 Henry v. Root, 33 N. Y. 545; Baker v. Kennett, 54 Mo. 82. 
 
 86 Proctor V. Sears, supra ; Ford v. Phillips, 1 Pick. 202 ; Thomp- 
 son V. Lay, 4 id. 48 ; Goodsell v. Myers, 3 Wend. 479 ; Hale v. Ger- 
 rish, 8 N. H. 374; Wilcox v. Roath, 12 Conn. 550; Chandler v. 
 Glover, 32 Penn. St. 509 ; Conklin v. Ogborn, 7 Ind. 553 ; Martin v. 
 Byrom, Dudley (Ga.) 203; Bank of Silver Creek u. Browning, 16 
 Abb. Pr. 272 ; Dunlap v. Hales, 2 Jones (N. C.) L. 381. 
 
 8 
 
114 THE DOMESTIC RELATIONS. 
 
 fant's own use.^^ So of part payment.^ So of con- 
 tinuing to work for a month after majority on a 
 contract for labor.^^ Slight declarations indicating 
 recognition of the contract will suffice to warrant a 
 verdict.*" 
 
 But the acts must be affirmative ; mere passive or 
 indecisive conduct will not answer. So submitting 
 the question of liability to arbitration, or retaining 
 consideration money, wiU not work a ratification.*^ 
 And the sale during minority of real estate acquired 
 in infancy, and the retention of the proceeds after 
 majority, is not an affirmance.*^ Passive conduct 
 amounting to an estoppel may effect a ratification ; 
 as where the infant, after coming of age, sees a pur- 
 chaser of his real estate expending considerable sums 
 in permanent improvements on it, and for years fails 
 to assert his title ;*^ or knowingly permits another 
 to purchase from such purchaser without notifying 
 him of his claim.** But a married woman, on arriv- 
 
 ^ Lawson v. Lovejoy, 8 Me. 405 ; Boyden v. Boydeu, 9 Mete. 519 ; 
 Cheshire v. Barrett, 4 McCord, 241 ; Boody v. McKenney, 23 Me. 
 517 ; Robbins v. Eaton, 10 N. H. 561 ; Chapln v. Shafer, 49 N. Y. 407. 
 
 88 Little V. Duncan, 9 Rich. Law. 55; Stokes v. Brown, 4 Chand. 
 (Wis.) 39 ; Henry v. Root, 33 N. Y. 526. 
 
 S9 Forsyth v. Hastings, 27 Vt. 646. 
 
 *» Hoit V. XJnderhill, 9 N. H. 436; Bay v. Gunn, 1 Den. 108; 
 Cheshire v. Barrett, 4 McCord, 241 ; Whitney v. Dutch, 14 Mass. 457 ; 
 lUecker v. Koehn, 21 Neb. 559; 59 Am. Rep. 849. 
 
 '*! Benham v. Bishop, 9 Conn. 330. 
 
 «2 Walsh V. Powers, 43 N. Y. 23; 3 Am. Rep. 654. 
 
 *8 Wheaton v. East, 5 Yerg. 41 ; Wallace v. Lewis, 4 Harring. 75 ; 
 Highley v. Barrow, 49 Me. 103; Thompson v. Strickland, 52 Miss. 
 574; Jones v. Phoenix Bank, 4 Seld. 235. 
 
 " Hall V. Simmons, 2 Rich. Eq. 120 ; Alsworth ;;. Cordtz, 31 
 Miss. 32; Belton v. Briggs, 4 Dessaus. 465; Cresinger v. Welch, 15 
 Ohio, 156 ; Emmons v. Murray, 16 N. H. 885 ; Norris v. Wait, 2 
 Rich. (S. C.) 148. 
 
EATIFICATION AND AVOIDANCE OF CONTRACT. 115 
 
 ing at full age, is still excused by her coverture from 
 implied ratification.*^ 
 
 Mere lapse of time, disconnected from affirmative 
 acts or conduct amounting to an estoppel, will not 
 amount to a ratification. So of a conveyance of 
 real estate, and acquiescence, short of the statutory 
 period of limitation, and in the absence of improve- 
 ments.*^ But even a brief lapse of time, in con- 
 nection with affirmative acts, will strengthen the 
 evidence of ratification.*' 
 
 The absence of express repudiation will not alone 
 constitute a ratification.*^ If has been held other- 
 wise in a few partnership and stock cases.*^ 
 
 It has been held that it is not essential to a valid 
 ratification that the party should know that he was 
 not legally liable.^" But the contrary seems more 
 reasonable and better supported.^^ 
 
 « Sims V. Everhardt, 102 U. S. 300; McMorris v. Webb, 17 S. C. 
 558. 
 
 *" Tucker v. Moreland, 10 Pet. 58 ; Boody v. McKenney, 23 Me 
 517; Drake v. Ramsey, 5 Ohio, 251; Jackson v. Burchin, 14 Johns- 
 124; Urban v. Grimes, 2 Grant, 96; Vaughn v. Parr, 20 Ark. 600; 
 Voorhies v. Voorhies, 24 Barb. 150 ; Ware v. Brush, 1 McLean, 533 ; 
 Moore v. Abemathy, 7 Blackf . 442 ; Cole v. Pennoyer, 14 111. 158 ; 
 Green v. Green, 69 N. Y. 553; Huth v. Carondelet Ey. and D. Co., 
 56 Mo. 202 ; Wallace v. Latham, 52 Miss. 291 ; McMurray v. Mc- 
 Murray, 66 N. Y. 175 ; Gillespie v. Bailey, 12 W. Va. 70 ; 29 Am. 
 Rep. 445. 
 
 *' Cresinger v. Welch, mpra. 
 
 " Holmes <-. Blogg, 8 Taunt. 39 ; Richardson v. Boright, 9 Vt. 
 368 ; Kline v. Beebe, 6 Conn. 494 ; Hoit v. Underbill, 9 N. H. 439. 
 
 *9 Goode V. Harrison, 5 B. & Aid. 147 ; Dublin and W. Ey. Co. v. 
 Black, 8 Exch. 181. 
 
 M Morse v. Wheeler, 4 Allen, 570. 
 
 " Baker v. Kennett, 54 Mo. 82; Petty v. Roberts, 7 Bush (Ky.) 
 
116 THE DOMESTIC EELATIONS. 
 
 As good a rule as can be constructed on this sub- 
 ject is laid down by Mr. Schouler as follows : " That 
 the mere acknowledgment that a certain transaction 
 constitutes a debt, is sufficient to bind him lately an 
 infant; but that an acknowledgment to the extent 
 that he justly owes a debt, with equivocal expres- 
 sions as to some future payment, may or may not be 
 considered sufficient, though the better opinion is in 
 favor of their sufficiency ; that acts or omissions on 
 his part, which are prejudicial to the adult party's 
 interests, or evince his own intention to retain the 
 advantages of a contract made during infancy, may 
 be, especially when reasonable time has elapsed, con- 
 strued into a ratification, the presumption of honor- 
 able motives being fair and reasonable under such 
 circumstances ; and finally that a distinct, unequiv- 
 ocal promise, verbal or written, made after attain- 
 ing majority, is always sufficient, this apparently 
 superseding the former promise altogether." ^^ 
 
 Avoidance. — Any act clearly showing an inten- 
 tion not to be bound, such as a distinct declaration 
 and conveyance to another, will suffice.^ So of a 
 contract of sale.^ 
 
 Disaffirmance of a sale of real estate need not be 
 preceded by refunding or offering to refund the pur- 
 
 410; Owen v. Long, 112 Mass. 403; Curtin u. Patton, 11 S. & R. 
 305 ; Hinely v. Margariz, 3 Barr, 428 ; Chambers v. Wherry, 1 
 Bailey (S. C.) 28; Norris v. Vance, 3 Rich. (S. C.) 164; Tobey ■/. 
 Wood, 123 Mass. 88; 26 Am. Rep. 27. 
 
 62 Schoul. Dom. Rel. 582. 
 
 68 State V. Plalsted, 43 N. H. 413. 
 
 s* Mustard v. Wohlford, 16 Gratt. 329. 
 
KATIPICATION AND AVOIDANCE OF CONTRACT. 117 
 
 chase money.^^ And where the infant has spent or 
 wasted the consideration before majority, and has no 
 other property, he may still recover the property 
 without refunding the consideration, and mere ac- 
 quiescence for three years after majority is not a 
 ratification.^^ But he cannot retjiin property and 
 avoid paying the purchase money.^^ This applies 
 to both real and personal property. 
 
 If the infant sells goods and receives the price, 
 he cannot recover the goods without restoring the 
 price. ®^ Nor may he injure property which he has 
 received, and recover the full price on offering to 
 restore it.^^ Nor recover partnership property, after 
 rescinding the partnership agreement, while partner- 
 ship debts are outstanding.^* If his former vendee 
 is sued for use and occupation of land, he Hiay re- 
 coup for improvements.^^ 
 
 Money paid by an infant on a contract which he 
 has repudiated may be recovered, without any allow- 
 ance to the other party for expenses or trouble.^^ 
 
 Where an infant contracts to perform labor, he 
 may disaffirm on coming of age, and recover quantum 
 
 «6 Pitcher v. Laycock, 7 Ind. 398 ; Cresinger v. Welch, 15 Ohio, 156. 
 
 66 Green v. Green, 69 N. Y. 553 ; 25 Am. Rep. 233 ; Dill u. Bowen, 
 54 Ind. 204 ; Miller v. Smith, 26 Minn. 248 ; 37 Am. Eep. 407. , 
 
 6' Kline v. Beebe, 6 Conn. 494 ; Hillyer v. Bennett, 3 Edw. 222 ; 
 Hall V. Butterfield, 59 Am. Rep. 354; 47 Am. Rep. 209. But he may 
 rescind without restoring goods when they have been taken from him 
 on execution. Lemmon v. Beeman, 45 Ohio St. 505. 
 
 68 Bartholomew v. Finnemore, 17 Barb. 428. 69 ibid. 
 
 811 Furlong v. Bartlett, 21 Pick. 401 ; Adams v. Beall, 67 Md. 53 ; 
 1 Am. St. Rep. 379. 
 
 61 Weaver v. Jones, 24 Ala. 420. 
 
 62 Shurtleff v. Millard, 12 E. 1. 272 ; 34 Am. Eep. 640. 
 
118 THE DOMESTIC RELATIONS, 
 
 meruit ;^^ without any allowaBce to the other party 
 for damages.^^ But not where the contract was rea- 
 sonable, is executed, and the other party did not 
 know of his infancy .^^ So where an infant had con- 
 tracted for service, covenanting not to carry on the 
 same business, and continued in the service eighteen 
 months after majority, without repudiating, held that 
 he was boiind.^ The right of disaffirmance extends 
 to a minor's heir.^* 
 
 INJURIES AND FRAUDS OF INFANTS. 
 
 1. Committed by Infants. — An infant is liable for 
 his torts like an adult. 
 
 For every injury to the person or property of 
 another he is bound to respond, and his infancy is 
 no defence. 
 
 His age may render a tort an unavoidable acci- 
 dent which wouxd not be so in an adult ; ^^ but for a 
 tort with force he is liable at any age.®^ Thus : 
 
 Infancy is no defence to. an action of assault and 
 battery ; ^^ even when unintentional ; ™ nor for over- 
 driving a horse ;^^ nor for nuisance ;'^2 nor for con- 
 es GafEney v. Hayden, 110 Mass. 137 ; 14 Am. Rep. 580. 
 
 "* Medbury v. "Watrous, 7 Hill, 110 ; Derocher v. Continental 
 Mills, 58 Me. 217; 4 Am. Rep. 286. But contra on last point, 
 ShurtlefE v. Millard, supra. 
 
 66 Spicer v. Earl, 41 Mich. 191 ; 32 Am. Rep. 152. 
 
 «" WUkinson v. Joughin, 41 L. J. Ch. 2-34. 
 
 «*• Harris v. Ross, 86 Mo. 89 ; 56 Am. Rep. 411. 
 
 " Bullock V. Babcock, 3 Wend. 391. 
 
 <" Neal V. Gillett, 23 Conn. 437. 
 
 69 Peterson v. Haffner, 59 Ind. 130 ; 26 Am. Rep. 81, and note, 83. 
 
 '"> Conway v. Reed, 66 Mo. 346 ; 27 Am. Rep. 354. 
 
 " Towne v. Wiley, 23 Vt. 355. '^ McCoon v. Smith, 3 Hill, 147. 
 
INJURIES AND FRAUDS OF INFANTS. 119 
 
 version of an article bailed ; ''^ nor for trover ; '•^ nor 
 for detinue ; ''^ nor for embezzlement ; '^ nor for money 
 stolen ;'^^ nor for obtaining goods on credit intend- 
 ing not to pay.'* 
 
 An infant is liable for his trespass even if com- 
 mitted by command of his father ; ™ and on his note 
 given to settle his tort ; *" and for a wrongful act by 
 color of office, as a levy by an infant constable.^^ 
 
 Infancy is a good defence to an action on a con- 
 tract procured by the infant's fraudulent represen- 
 tations; as for goods sold him on his fraudulent 
 representation that he was of age.*^ So in an action 
 for the fraudulent representation aiid deceit.*^ But 
 in equity in England he is held accountable.^ 
 
 An infant is not estopped by his act unless it is 
 fraudulent. Thus, where an infant of 16, at her 
 mother's request, signed her mother's name to a 
 deed of the infant's real estate, for which an inno- 
 cent person paid a large sum of money, the infanj; 
 
 " Towne v. Wiley, supra. 
 
 74 Campbell v. Stakes, 2 "Wend. 137 ; Freeman v. Boland, H E. 1. 27. 
 
 " Mills V. Graham, 4 B. & P. 140. 
 
 '8 Elwell V. Martin, 32 Vt. 217. 
 
 '7 Shaw V. Coffin, 58 Me. 254 ; 4 Am. Rep. 290. 
 
 '8 Wallace v. Morss, 5 Hill, 391. 
 
 79 Scott V. Watson, 46 Me. 362. 
 
 80 Ray V. Tubbs, 50 Vt. 688 ; 28 Am. Rep. 519. 
 
 81 Green w. Burke, 23 Wend. 490. 
 
 82 Conrad v. Lane, 26 Minn. 389 ; 37 Am. Rep. 412 ; Wieland v. 
 Kobick, 110 lU. 16 ; 51 Am. Rep. 676 ; Neff v. Landis, 110 Penn. St. 
 204. Contra ; Rice v. Boyer, 108 Ind. 272 ; 58 Am. Rep. 53. 
 
 88 Merriam v. Cunningham, 11 Cush. 40; Brown v. McCune, 5 
 Sandf. 224; Studwell v. Shapter, 54 N. Y. 249. 
 
 64 In re Unity, etc., Asso., 3 DeG. & J. 63 ; Lempriere v. Lange, 
 41 L. T. (N. S.) 378; 12 Ch. D. 675. 
 
120 THE DOMESTIC RELATIONS. 
 
 was held not estopped from subsequently claiming 
 title to the premises. And it has been held that an 
 infant wife is not bound by her release of dower, 
 although she declared herself of age to the acknowl- 
 edging officer.^^ 
 
 2. Suffered hy Infants. — The ordinary principles 
 apply as in the case of adults, with some enlarge- 
 ment on account of the inexperience of infants. 
 
 Thus, a child, eight years old, may maintain an 
 action against one who sold him gunpowder at his 
 own request, whereby he was injured.^^ 
 
 But on the other hand, it has been held that if he 
 is clearly a trespasser, he cannot recover ; as where 
 he puts his fingers in a dangerous machine left on 
 sale in a public place.^'^ But yet he may recover, 
 even when a trespasser, provided he acted with the 
 care usual in persons of his age, and the defendant 
 was negligent ; as where injured while plajdng on a 
 turntable left unfastened and unguarded in a public 
 place ; ^ or where a boy 13 years old struck a dog, 
 vicious and at large, which thereupon bit him.^^ 
 
 The negligence of parents or others having charge 
 of an infant is attributable to the infant ; as where 
 
 85 Spencer w. Carr, 45 N. Y. 406 ; 6 Am. Eep. 112 ; Watson v. 
 Billings, 38 Ark. 278 ; 42 Am. Kep. 1 ; McMorris ■,. "Webb, 17 S. C. 
 558. 
 
 88 Carter v. Towne, 98 Mass. 567 ; Binf ord </. Johnston, 82 lud. 
 426; 42 Am. Eep. 508. 
 
 8' Mangan v. Atterton, L. R. 1 Exch. 239. 
 
 88 Keffe V. Mil. and St. P. R. R. Co., 21 Minn. 207 ; 18 Am. Rep. 
 393. See 31 Am. Rep. 203. 
 
 89 Pluraley v. Birge, 124 Mass. 67 ; 26 Am. Rep. 645. 
 
INJURIES AND FRAtTDS OF INFANTS. 1^1 
 
 a child of tender years is negligently suffered to run 
 in the highway, and there sustains injury.^" The 
 rule of New York, Massachusetts, and Illinois is that 
 a child too young to have discretion cannot recover 
 if his protector fails to exercise ordinary care, but he 
 may recover if he uses the care common to such chil- 
 dren and his protector exercises ordinary care.^^ If 
 the child exercises due care, the defendant is liable 
 irrespective of the parent's negligence ; but if not, 
 the conduct of the parents is essential to determine 
 the liability .^2 In Vermont, Pennsylvania, and Con- 
 necticut, the child's exercise of ordinary care is 
 alone regarded.^^ Formerly in England the pro- 
 tector's negligence was ignored,^ but more recently 
 the New York doctrine seems gaining favor.®^ That 
 doctrine however has been very recently repudiated 
 in Texas, Michigan, Mississippi, and lowa.^ 
 
 The infant's release or compromise of his right of 
 action is not binding ; ^ nor is his father's release 
 binding on the infant.^^ 
 
 8» Hartfeld v. Eopev, 21 Wend. 617.. 
 
 9' Mangam v. Brooklyn E. Co., 38 N. Y. 455 ; Chicago v. Starr, 
 42 III. 174; Wright v. Maiden R. Co., 4 Allen, 283. 
 
 92 Ihl V. Forty-second Street E. Co., 47 N. Y. 317 ; 7 Am. Eep. 450 ; 
 McGary v. Loomis, 63 N. Y. 104 ; 20 Am. Eep. 510, and note, 512. 
 
 93 Eobiuson v. Cone, 22 Vt. 214; Daley v. Norwich and W. E. 
 Co., 26 Conn. 591 ; ' Kay v. Penn. E. Co., 65 Penn. St. 269 ; 3 Am. 
 Eep. 628; North Penn. E. Co. v. Mahoney, 57 Penn. St. 187;, Erie 
 City Pass. Ey. Co. v. Schuster, 113 Penn. St. 412; 57 Am. Eep. 471. 
 
 9* Lynch v. Nurdin, 1 A. & E. (Q. B.) 29. 
 
 9S Lygo w.Newbold, 9 Ex. 302; Waite v. N. E. Co., 5 Jur. (N. S.) 
 936; El. Bl. & El. 719. 
 
 98 Galveston, etc., Ey. Co. v. Moore, 59 Tex. 64 ; Westhrook v. Mo- 
 bile, etc., E. Co., Miss. ; Wymore v. Mahask County, Iowa, 
 
 9' Baker v. Lorett, 6 Mass. 78. 
 
 88 Loomis V. Cliue, 4 Barb. 453. 
 
122 THE DOMESTIC RELATIONS. 
 
 Infants' Suits. — Infants have rights of action and 
 are subject to suit. But they cannot prosecute or 
 defend either in person or by attorney, but only by 
 guardian or next friend. Nothing can be taken 
 against an infant by his admission in the suit. He 
 is liable for costs. The statute of limitations does 
 not run against him during minority, and usually 
 by statute this immunity is extended for a certain 
 period after majority. 
 
CHAPTER X. 
 
 MASTEE AND SERVANT. 
 
 A MASTER is one who has legal authority over 
 another who owes him service. i 
 
 Strictly speaking, so far as this subject comes 
 within Domestic Relations, it should be confined to 
 menial service, but usage has brought under this 
 title many other relations, particularly that of em- 
 ployer and employee. I shall inquire particularly 
 concerning 
 
 1. The relation and its rights generally. 
 
 2. The rights, liabilities, and duties of master toward 
 
 servant. 
 
 3. The rights, duties, and liabilities of servant to- 
 
 ward master. 
 
 4. The liability of master to third persons. 
 
 5. The liability of servant to third persons. 
 
 6. The liability of third persons to master. 
 
 I. THE RELATION AND ITS RIGHTS GENERALLY. 
 
 1. Who are servants. — The boundary between 
 master and servant and principal and agent is un- 
 certain and capricious. By servants generally are 
 understood not only house servants, but farm serv- 
 ants and apprentices. I shall use the term as 
 including all such employees as are in the exclusive 
 
124 THE DOMESTIC RELATIONS. 
 
 service of the employer and constructively under his 
 supervision, as clerks in stores, operatives in mills, 
 persons employed on public conveyances, and the 
 like. 
 
 It must be observed that the relation implies the 
 right of the master to direct and control the servant. 
 Therefore one exercising an independent employ- 
 ment, like a contractor, is not within the relation or 
 its rules.i 
 
 A distinction is made by custom between menial 
 or domestic servants and others, in reference to the 
 right of discharge; and a huntsman ^ and a gardener^ 
 are' included within the description of menials or 
 domestics, although not living in the master's house; 
 while a governess in the house is not.* 
 
 A laborer working a farm on shares has been 
 deemed not a servant so as to give the master a 
 right of action for enticing him away;* but the 
 contrary has been held.^ 
 
 2. The creation of the relation. — This is always by 
 contract express or implied, usually by hiring. A 
 general hiring, without any limitation of time, is 
 construed by the common law as a year in the case 
 
 1 Harrison v. Collins, 86 Penu. St, 153 ; 27 Am. Eep. 699, and note, 
 702 ; City of Erie v. Caulkins, 85 Penu. St. 247 ; 27 Am. Kep. 642, and 
 note, 647 ; Hexamer v. Webb, 101 N. Y. 377 ; 54 Am. Rep. 703. 
 
 2 Nicoll V. Greaves, 17 C. B. (N. S.) 27. 
 
 3 Nowleu V. Ablett, 2 0. M. & K. 54. 
 
 4 Todd V. Kerrich, 8 Ex. 151. 
 
 6 Burgess v. Carpenter, 2 S. C. 7; s. c, 16 Am. Rep. 643. 
 8 Haskins v. Royster, 70 N. C. 601 ; s. c, 16 Am. Rep. 780 ; HufE 
 V. Watkins, 15 S. 0. 82 ; 40 Am. Rep. 680. 
 
MASTER AND SERVANT. 125 
 
 of agricultural servantsJ By custom, in the case 
 of domestic servants the hiring is construed as 
 monthly .5 The rule of the common law is modified 
 by contract; by custom; and by date and frequency 
 of payments; but generally the common-law rule 
 still holds.9 
 
 A contract for service which by its terms cannot 
 be completed in a year is void under the statute of 
 frauds unless in writing. So an oral hiring for a 
 year to commence at a future day is void.^" But 
 for a year from the next day is valid.^^ 
 
 The contract must be between persons capable of 
 contracting. When any legal disability exists on 
 either side it cannot be enforced. 
 
 The contract may be created by implication, with- 
 out an express hiring, as where one volunteers a ser- 
 vice which the other knows of and recognizes. ' But 
 there must be knowledge and recognition to render 
 it binding.^ One cannot by simply volunteering a 
 service compel the other to pay for it.^^ 
 
 Nor does one already a servant become a servant 
 of another by the latter's false statement that the 
 master had directed him to assist." 
 
 T 1 Bl. Com. 425. 
 
 8 Fawcett v. Cash, 5 B. & Ad. 904. 
 ° Hathaway v. Bennett, 10 N. Y. 108. 
 
 M Bracegirdle v. Heald, 1 B. & Aid. 722 ; SutcliSe v. Atlantic 
 Mills, 13 E. I. 480; 4.3 Am. Rep. 39. 
 
 11 Dickson V. Frisbee, 52 Ala. 165 ; s. c, 23 Am. Rep. 566. 
 
 12 "Webb V. Cole, 20 N. H. 490 ; Academy v. Allen, 14 Mass. 176. 
 18 Caldwell u. Eneas, 2 Mill. (S. C.) 348; Bartholomew t>. Jack- 
 son, 20 Johns. 28 ; Woods v. Ayers, 39 Mich. 345 ; 33 Am. Rep. 396. 
 
 " Kelly V. Johnson, 128 Mass. 530 ; 35 Am. Rep. 398. 
 
1^6 
 
 THE DOMESTIC BBLATIONS. 
 
 3. Termination of the relation. — This is ordinarily 
 by expiration of the term of service ; but the master 
 may discharge the servant for wilful disobedience 
 of a lawful order; for gross moral misconduct; for 
 habitual negligence. 
 
 1. Disobedience. — As where a servant was or- 
 dered to go on an errand just as dinner was ready, 
 and refused to go without his dinner ;^^ or where a 
 harvest hand refused to work without beer;^^ or 
 where a housemaid persisted in going to see her 
 sick mother.!' 
 
 2. Moral misconduct. — As pregnancy of a maid- 
 servant; ^^ embezzlement, although less than his ar- 
 rears of wages ; !^ robbery ; 2" habitual drunkenness;^ 
 fraudulent conduct toward the master;^ engaging 
 in the same business on his own account during 
 the term of service ;^^ betraying his master's confi- 
 dence ; ^* sending a challenge to fight a duel.^** 
 
 3. Negligence. — The servant may be discharged 
 for wanton negligence, or palpable inefficiency 
 
 15 Spain V. Arnott, 2 Stark. 256. 
 
 16 Lilley v. Elwin, U Q. B. 742. 
 
 " Turner v. Mason, 14 M. & W. 112. But see Shaver v. Ingham, 
 58 Mich. 649 ; 55 Am. Rep. 712. 
 18 Hobbs V. Harlan, 10 Lea, 268. 
 1' Spotswood V. Barrow, 5 Ex. 110. 
 
 20 Libhart v. Wood, 1 W. & S. 265. 
 
 21 Consolis V. Gearhart, 31 Mo. 585. 
 
 22 Singer v. McCormick, 4 W. & S. 266. 
 
 23 Dieringer v. Meyer, 42 Wis. 311 ; s. c, 24 Am. Eep. 415. 
 
 24 Beeston v. Collyer, 2 C. & P. 607. 
 
 24' Dolby V. Kinnear, 1 Kerr (N. Bruna. ) 480. 
 
MASTER AND SERVANT. 127 
 
 amounting to a breach of an implied undertaking;^^ 
 as where an apothecary's assistant employs an igno^ 
 rant shop-boy to put up prescriptions to save himself 
 ■work; 28 or where a scene-painter proves incompe- 
 tent.27 
 
 The servant may also be discharged for any actual 
 breach ; as where a man contracts for the service of 
 himself and his wife, and his wife dies.^^ 
 
 The contract is also dissolved by the death of 
 either. 
 
 An unjustifiable act of the servant, not known to 
 the master, does not justify dismissal for a cause 
 insufficient in itself.^ 
 
 n. EIGHTS, DUTIES, AND LIABILITIES OF MASTER 
 TOWARD SERVANT. 
 
 1. Mis rights. — The master has no right to chas- 
 tise an ordinary servant.^" But he may chastise an 
 apprentice. He may justify an assault in defence of 
 his servant.^^ 
 
 2. His duties. — He is not bound to furnish the 
 servant with medicines or medical attendance.^^ But 
 
 25 Callo V. Brouncker, 4 C. & P. 518. 
 
 26 Wise V. Wilson, 1 Car. & K. 662. 
 
 27 Harmer v. Cornelius, 5 C. B. (N. S.) 236. 
 
 28 Jennings v. Lyons, 39 Wis. 553 ; s. c, 20 Am. Eep. 67. 
 
 28 Cussons V. Skinner, 11 M. & W. 161. But see Spotswood v. 
 Barrow, 5 Ex. 110. 
 
 <*' Commonwealth v. Baird, 1 Ashm. 267 ; Davis v. State, 6 Tex. 
 App. 133; Cooper v. State, 8 Baxt. 324; 35 Am. Kep. 704. 
 
 81 2 Kent Com. 261. 
 
 82 Ibid. 
 
128 THE DOMESTIC RELATIONS. 
 
 otherwise as to an apprentice.^ He is not bound to 
 give him a " character " on dismissal.^ 
 
 If the employment is dangerous beyond what man- 
 ifestly appears, or if the servant is not of sufficient 
 age or discretion to understand the manifest risks, it 
 is the master's duty to notify him of the danger ; ^ 
 and in the case of an inexperienced person the mas- 
 ter is bound to instruct him how to avoid the dan- 
 ger.^ < 
 
 The master is bound to the exercise of reasonable 
 care in the selection of co-servants;^'^ and to dis- 
 charge them if to his knowledge they become incom- 
 petent;^^ and to employ a sufficient number for the . 
 safe performance of the work.^^ 
 
 The master is bound to use reasonable care in the 
 selection and repair of machinery and appliances 
 used by the servant.*" 
 
 But the master does not warrant the competency, 
 skill, or care of the co-servants.*^ He is only bound 
 to use reasonable care in the selection and retention. 
 That care is measured by the nature of the occupa- 
 tion and the probable consequences of the employ- 
 es -Reg. V. Smith, 8 C. & P. 153. 
 
 84 Carroll v. Bird, 3 Esp. 201. 
 
 85 Baxter v. Roberts, 44 Cal. 187; s. c, 13 Am. Eep. 160, and 
 note, 164 ; Bowling v. Allen, 74 Mo. 13 ; 41 Am. Rep. 298. 
 
 86 Sullivan v. India Mfg. Co., 1 13 Mass. 396 ; Fones v. Pliillips, 39 Ark. 
 17 ; 43 Am. Rep. 264 ; Larson v Berqnist, 34 Kaus. 334 ; 55 Am. Rep. 249. 
 
 8' Moss V. Pacific R. Co., 49 Miss. 167 ; s. c, 8 Am. Rep. 126. 
 
 88 Laning«. N. Y. C. R. Co., 49 N. Y. 621 ; s. c, 10 Am. Rep. 417. 
 
 89 Booth V. B. & A. R. Co., 73 N. Y. 38; s. c, 29 Am. Rep. 97. 
 « Gibson v. Pacific R. Co., 46 Mo. 163; s. c, 2 Am. Rep. 497. 
 
 *i Columbus, etc., R. Co. v. Troesch, 68 111. 545 ; s. c, 18 Am. 
 Rep. 578. 
 
MASTER AND SERVANT. 129 
 
 ment of an incompetent person.*^ Thus a greater 
 degree of care would be required in the selection of 
 a locomotive engineer than of a brakeman or fire- 
 man. 
 
 Nor does the master warrant the soundness or fit- 
 ness of the machinery or appliances.** Nor is he 
 bound to adopt the latest improvements.** As for 
 example, he is not bound to furnish a fire-escape for 
 his mill.*5 
 
 3. Sis Liability. — The master is liable to the ser- 
 vant for any injury arising from a breach of his duty 
 to exercise reasonable care in the selection*^ and 
 retention*^ of co-servants, or in the selection or 
 repair of machinery or appliances ; *8 or to point out 
 dangers not manifest or appreciable in the employ- 
 ment ; *^ but not otherwise.^" 
 
 In respect to co-servants, the test in selection is 
 due and reasonable care ; and in retention, knowl- 
 edge or notice of incompetency or unsafeness. It 
 has been said that if the servant's unfitness is matter 
 of general reputation, the master is chargeable with 
 
 « Tarrant v. Webb, 18 C. B. 797. 
 
 «» Columbus, etc., R. Co. v. Troesch, 68 111. 545 ; s. c, 18 Am. 
 Rep. 578 ; Hough v. Ry. Co. 100 V. S. 213. 
 
 " Stark V. Patterson, 6 Phila. 225. 
 
 « Jones V. Granite Mills, 126 Mass. 84;i 30 Am. Rep. 661. 
 
 « Moss V. Pacific R. Co., 49 Mo. 167 ; s. c, 8 Am. Rep. 126. 
 
 " Laning v. N. Y. C. R. Co., 49 N. Y. 521 ; s. c, 10 Am. Rep. 417. 
 
 <8 Gibson v. Pacific R. Co., 46 Mo. 163 ; b. c, 2 Am. Rep. 497. 
 
 « Baxter v. Roberts, 44 Cal. 187; s. c, 13 Am. Bep. 160, and 
 note, 164. 
 
 63 See 1, 2, 3, 4. 
 
 9 
 
130 THE DOMESTIC BELATIONS. 
 
 negligence in employing or retaining him.^^ But to 
 render the master liable for retaining a negligent 
 servant, it must appear that the negligence is ha- 
 bitual. A single act of negligence is not sufScient.^^ 
 
 In respect to machinery or appliances the test is 
 the master's knowledge of the defect, or his ability 
 by the exercise of reasonable care to have learned it. 
 If he knew or ought to have known, he is liable. 
 
 The master is not liable for an injury to the 
 servant except when the servant is in the regular 
 discharge of his duty. As where the servant, em- 
 ployed in a mine, went to a part of the mine which 
 he knew to be dangerous, to visit another servant, 
 and was there injured by reason of the dangerous 
 condition of the mine, the master was held not 
 liable.53 
 
 The master may be liable for an injury from defec- 
 tive machinery although the negligence of a co-ser- 
 vant contributed.^* 
 
 Oontributory Negligence. — It is a universal rule 
 that subject to the master's duty to use reasonable 
 care in selecting and retaining co-servants, in select- 
 ing and repairing machinery and appliances, and in 
 pointing out dangers not manifest or appreciable, 
 the servant takes upon himself the risks of the 
 £mployment.^^ 
 
 ■« Gilraan v. Eastern R. Co., 10 Allen, 233. 
 
 « Baiilec V. N. Y. & H. E. Co., 59 N. Y. 356 ; 17 Am. Eep. 325. 
 
 68 Wright V. Eawson, 52 Iowa, 329 ; 35 Am. Rep. 275. But see 
 Broderick v. Detroit, etc., Co., 56 Mich. 261 ; 56 Am. Rep. 382. 
 
 " Cone V. Delaware, etc., R. Co., 81 N. H. 206 ; 37 Am. Rep. 491. 
 
 66 Priestley v. Fowler, 3 M. & W. 1 ; Bartonshill Coal Co. v. Reid, 
 3 Macq. 284. 
 
MASTER AKD SEEVANT. 131 
 
 If the danger is as well known or as manifest to 
 the servant as to the master, the servant enters or 
 continues in the employment at his own risk.^^ The 
 cases of unfenced machinery, low railway bridges, or 
 coupling cars are examples. 
 
 If the servant continues in the employment after 
 learning of the incompetency of his co-servant, he 
 does so at his own risk.^' 
 
 So if he continues in the employment after learn- 
 ing of its danger or of the defectiveness of any of 
 the machinery or appliances.^^ 
 
 Subject to the master's duty to exercise reasonable 
 care in the selection and retention of co-servants, 
 the master is not liable to the servant for an injury 
 occasioned to him by the negligence or want of 
 skill of a co-servant.^^ 
 
 A general exception to the last two rules is where 
 the servant notifies the master of the incompetency 
 or the defectiveness, and the master promises to dis- 
 charge the incompetent servant or repair the defesc- 
 tive machinery or appliances, or the servant has a 
 reasonable expectation that he will do so, if the ser- 
 vant continues in the employment it is a question of 
 fact whether he was negligent in so doing.^" 
 
 ^ Baylor v. Delaware, etc., R. Co., 11 Vroom, 23 ; s. c, 29 Am. 
 Kep. 208, and note, 210 ; Ladd v. New Bedford R. Co., 119 Mass. 
 412; B. c, 20 Am. Rep. 331. But see St. Louis, etc., R. Co. v. Irwin, 
 37 Kans. 701 ; 1 Am. St. Rep. 266. 
 
 6' Davis V. Detroit & M. R. Co., 20 Mich. 105 ; s. c, 4 Am. Rep. 364. 
 
 5' Greenleaf v. Cent. R. Co., 29 Iowa, 14 ; s. c, 4 Am. Rep. 181. 
 
 ^ Farwell v. B. & W. R. Co., 4 Mete. (Mass.) 49; Feltham v. 
 England, L. R. 2 Q. B. 33. 
 
 6» Davis V. Detroit & M. R. Co., 20 Mich. 105 ; s. c, 4 Am. Rep. 
 364 ; Coombs v. New Bedford Cordage Co., 102 Mass. 572 ; s. c, 3 
 
132 THE DOMESTIC RELATIONS. 
 
 Ordinarily, contributory negligence is a question 
 of fact. Sometimes negligence is so apparent as to 
 be matter of legal conclusion, but in otber cases it is 
 modified by circumstances so as to be negligence 
 neither in fact nor law, although apparently negli- 
 gent. For example : a seaman on a Toyage is bound 
 to obey the orders of the master at all hazards, and 
 consequently in so doing is not chargeable with con- 
 tributory negligence where he exposes himself to a 
 manifest risk and danger and receives injury in con- 
 sequence of the defective condition of the ship's 
 appliances.^^ So of a locomotive engineer who re- 
 mains at his post of duty in the face of danger, 
 when he might have left it and escaped.^^ 
 
 Who are Co-servants. — The rule is thus stated in a 
 leading case. "A master is not liable to those in 
 his employ for injuries resulting from the negligence, 
 carelessness, or misconduct of a fellow-servant en- 
 gaged in the same general business. Nor is the lia- 
 bility of the master enlarged where the servant who 
 has sustained an injury is of a grade of the service 
 inferior to that of the Servant or agent whose negli- 
 gence, carelessness, or misconduct has caused the 
 injury, if the services of each, in his particular labor, 
 are directed to the same general end. And though 
 the iaferior in grade is subject to the direction or 
 
 Am. Rep. 506 ; Clarke v. Holmes, 7 Hurl. & N. 937 ; Hough v. Ey. 
 Co., 100 TJ. S. 213. But he must not continue longer than a reasonable 
 time after the unfulfilled promise. Eureka Co. v. Bass, 81 Ala. 200; 
 60 Am. Rep. 152. 
 
 61 Thompson v. Herman, 47 Wis. 602; 32 Am. Rep. 784. See 
 Williams v. Churchill, 137 Mass. 243 ; 50 Am. Rep. 304. 
 
 62 CottriU V. Chicago, etc., R. Co., 47 Wis. 634 ; 32 Am. Rep. 796. 
 
MASTER AND SERVANT. 133 
 
 control of the superior whose act or omission has 
 caused the injury, the rule is the same. Nor is it 
 necessary, to exempt the master from liability, that 
 the sufferer and the one who causes the injury 
 should be at the time engaged in the same particu- 
 lar work. If they are in the emplojonent of the 
 same master, engaged in the same common work, 
 and performing duties and services for the same 
 general purposes, the master is not liable."®^ 
 
 Thus, if the negligence is that of a foreman' or 
 superintendent, the master is not liable.^* 
 
 The common employment and the same general 
 coiitrol must combine. It is subjection to the same 
 general control, coupled with an engagement in the 
 same common pursuit, that affords the test.®^ If 
 there is a natural connection between the different 
 classes of service, such as necessarily brings the ser- 
 vants into contact with each other in the prosecution 
 of their work, they are co-servants, however dissimi- 
 lar their occupations may be. As where a carpenter 
 on a scaffold was injured by porters shifting a loco- 
 motive on a turntable.®'^ A railway brakeman, and 
 
 68 Xaning v. N. Y. C. R. Co., 49 N. Y. 521 ; s. c, 10 Am. Rep. 417. 
 See, also, Chicago & Alton R. Co. v. Murphy, 53 111. 336; s. c, 5 
 Am. Rep. 48; Lawlor v. Androscoggin R. Co., 62 Me. 463; s. c, 16 
 Am. Rep. 492, and note, 495. But see Cowles v. Richmond & Dan- 
 ville R. Co., 84 N. C. 309; 37 Am. Rep. 620. 
 
 M Wigmore v. Jay, 5 Ex. 354 ; Wilson v. Merry, L. R. 1 Sc. 
 App. 326; Malone v. Hathaway, 64 N. Y. 5; s. c, 21 Am. Rep. 573, 
 and note, 579; Brothers v. Cartter, 52 Mo. 373 ; s. o., 14 Am. Rep. 
 424 ; Lewis v. St. Louis R. Co., 59 Mo. 495 ; s. c, 21 Am. Rep. 385 ; 
 Peterson u. Whitebreast Coal & Mining Co., 50 Iowa, 673; 82 Am. 
 Bep. 143. 
 
 «6 Wood, Mast. & Serv., § 435. 
 
 6' Morgan v. Vale of Meath 'By. Co., L. R. 1 Q. B. 149. 
 
134 THE DOMESTIC EELATIONS. 
 
 a train-despatch er ; ®^ a railway fireman, and a tele- 
 graph" operator and the conductor ; ^® are examples. 
 In Illinois, the holding that a track-repairer and a 
 fireman on an engine are not fellow-servants must 
 be regarded as a departure from the law as well- 
 established except in a few jurisdictions.™ 
 
 To this general rule there are two exceptions 
 arising out of the master's delegation of his au- 
 thority : 
 
 1. Where the delegation is necessary, as in the 
 case of a corporation, which can act only by agents 
 of different grades. There the corporation is liable 
 for negligence or want of proper care, in respect to 
 such acts and duties as it is required to perform and 
 discharge as master or principal, without regard to 
 the rank or title of the agent intrusted with their 
 performance. As to such acts the agent occupies the 
 place of the corporation, and the latter is deemed 
 present and consequently liable for the manner of 
 performance.^^ 
 
 68 Eobertson v. Terre Haute, etc., E. Co., 78 Ind. 77; 41 Am. 
 Eep. 5.52. 
 
 «9 Slater v. Jewett, 85 N. Y. 61 ; 39 Am. Eep. 627. See Tierney v. 
 Minn., etc., E. Co., 33 Minn. 311 ; 53 Am. Rep. 35 ; Darrigan u. 
 N. Y., etc., E. Co., 52 Conn. 285 ; 52 Am. Eep. 590. See notes, 49 
 Am. Eep. 406 ; 52 id. 280 ; 55 id. 45, 621 ; Chic, etc., E. Co. v. Eoss, 
 112 U. S. 337. 
 
 ™ Chicago, etc., E. Co. v. Moranda, 93 HI. 302 ; 34 Am. Eep. 168 
 Morris's Admr. v. Eichmond, etc., Co., 78 Va. 745 ; 49 Am. Eep. 401 
 Chicago, etc., Ey. Co. v. Swanson, 16 Neb. 254; 49 Am. Eep. 718 
 Calvo t). Charlotte, etc., E. Co., 23 S. C. 526 ; 55 Am. Eep. 28 ; Kirk 
 V. Atlanta, etc., E. Co., 94 N. C 625 ; 55 Am. Eep. 621 ; Madden's 
 Admr. v. Chesapeake, etc., Ey. Co., 28 W. Va. 610 ; 57 Am. Eep. 695 ; 
 St. Louis, etc., Ey. Co. v. Weaver, 35 Kans. 412 ; 57 Am. Eep. 176. 
 
 '1 riike V. Boston & A. E. Co., 53 N. Y. 549 ; 13 Am. Eep. 545; 
 Dobbin v. Eichmond, etc., E. Co., 81 N. C. 446 ; 31 Am. Eep. 512. 
 
MASTER AND SERVANT. 135 
 
 lu the case of a corporation necessarily acting by 
 agents, it has been held that the principal is liable 
 to the inferior servant for the negligent act of the 
 superior servant, as superintendent or foreman, al- 
 though the latter at the time is discharging the 
 duties of an inferior servant under his control. But 
 the contrary has also been held.''^ 
 
 2. Where the delegation is voluntary, and includes 
 the power of selecting and discharging servants, or 
 purchasing and repairing machinery and appliances, 
 as where the agent is alter egoP In such cases the 
 knowledge or notification of the agent, as well as his 
 negligence, is attributable to the principal.''* 
 
 The master may not contract beforehand with the 
 servant for release from liability for injury by his 
 own or his employee's neglect.'^^ 
 
 III. RIGHTS, DUTIES, AND LIABILITIES OP SERVANT 
 TOWARD MASTER. 
 
 The servant may justify an assault in defence of 
 his master.^s The servant is bound to protect his 
 
 « Berea Stone Co. v. Kraft, 31 Ohio St. 287 ; 27 Am. Rep. 510 ; 
 Crispin v. Babbitt, 81 N. Y. 516 ; 37 Am. Rep. 521. 
 
 '8 Corcoran v. Holbrook, 59 N. Y. 517; s. c, 17 Am. Rep. 369; 
 Mullan V. Phila., etc.. Steamship Co., 78 Penn. St. 25 ; s. c, 21 Am. 
 Rep. 2, and note, 7 ; Mitchell v. Robinson, 80 Ind. 281 ; 41 Am. Rep. 812. 
 
 " Patterson v. Pittsburgh, etc., R. Co., 76 Penn. St. 389 ; s. c , 18 
 Am. Rep. 412; Ford v. Fitchburg R. Co., 110 Mass. 240; s. c, 14 
 Am. Rep. 598. 
 
 " Rosener v. Herman, 8 Fed. Rep. 782 ; Lake Shore, etc., Ry. Co. 
 V. Spangler, 44 Ohio St. 571 ; 58 Am. Rep. 833 ; Little Rock, etc., 
 R. Co. V. Eubank, 48 Ark. 460; 3 Am. St. Rep. 245. Contra ; West. 
 K. Co. V. Bishop, 50 Ga. 465. ( 
 
 w Wood, Mast. & Serv., § 289. 
 
136 THE DOMESTIC RELATIONS. 
 
 master's property. During the service he may not 
 solicit the master's customers into his own business, 
 but he may do so after the service has ended.^^ He 
 must give the master his whole time.'^"* He may 
 not, when his employer's lease is about to expire, 
 secretly take to himself a lease of the same premises 
 with the purpose of carrying on the like business 
 there.'^^ He is bound to account for his master's 
 money, and may not set up the right of a third per- 
 son in opposition.''^ 
 
 He is liable for gross negligence in the care of his 
 master's property, but not for ordinary accidents.^ 
 So he is liable to indemnify his master against the 
 consequences of his negligence or misconduct.^^ So 
 for his fraud or misfeasance.^ So for conspiracy to 
 injure his master's business.^^ 
 
 If the master unlawfully terminates the service, 
 the servant may treat the contract as continuing, 
 and sue for damages for the breach ; or he may treat 
 it as rescinded, and recover for service rendered, 
 quantum meruit.^ In a suit for damages, the master 
 may offset any compensation which he can prove 
 
 '■^ Nichol V. Martyn, 2 Esp. 732. 
 
 "* Leach v. Hannibal, etc., K. Co., 86 Mo. 27 ; 56 Am. Rep. 935. 
 
 " Gower v. Andrew, 59 Cal. 119. 
 
 '9 Lewis V. Hammond, 2 B. & Aid. 207. 
 
 80 Savage ». Walthew, 11 Mod. 135. 
 
 81 Smith V. Foran, 43 Conn. 244 ; 21 Am. Rep. 647 ; Mobile & 
 Mont. Ry. Co. v. Clanton, 59 Ala. 392; 31 Am. Rep. 15. 
 
 *2 Bac. Abr. Tit. " Master & Servant," M. 
 
 ^ Mapstrick v. Ramge, 9 Neb. 390 ; 31 Am. Rep. 415. 
 
 8* LiUey v. Elwin, 11 Q. B. 742 ; Colbnm u. "Woodworth, 31 Barb. 
 381 ; Richardson v. Eagle Machine Works, 78 Ind. 422 ; 41 Am. 
 Rep. 584. 
 
MASTER AND SERVANT. 137 
 
 that the servant might have earned by other similar 
 employment in the same neighborhood.^^ The ser- 
 vant may not unnecessarily lie idle, but it is for 
 the master to prove that he might have got other 
 employment. 
 
 If the servant is prevented by the act of God, 
 such as sickness, from fulfilling his engagement, he 
 is still entitled to compensation quantum meruit;^ 
 but he cannot recover damages for the master's refu- 
 sal to take him back.^^ If he leaves the employment 
 without, good excuse he is liable in damages to the 
 master.88 " When a servant is prevented from per- 
 forming his contract vi majore, the question whether 
 or not he is liable in damages for breach of contract 
 depends on circumstances. If he is carried to prison 
 for crime of which he is found guilty, or for a debt 
 unpaid, then, as the contract was broken by his own 
 voluntary act, he is liable in damages and the master 
 is free from the contract. But if on the other hand 
 he is carried to prison on suspicion of being guilty of 
 a crime of which he is ultimately acquitted, he is not 
 liable in reparation to the master, because there was 
 no voluntary breach of engagement." ^^ 
 
 86 Fewings v. Tisdal, 1 Ex. 295 ; Sherman v. Cham. Trans. Co., 31 
 Vt. 162 ; Strauss v. Meertief, 64 Ala. 299 ; 38 Am. Rep. 8. The 
 doctrine of constructive service is repudiated in Ohio. James v. Allen 
 County, 44 Ohio St. 226 ; 58 Am. Rep, 821. 
 
 88 Wolfe V. Howes, 20 N. Y. 197. 
 
 " Leopold V. Salkey, 89 HI. 412 ; 31 Am. Rep. 93. 
 
 88 Lees V. Whitcomb, 5 Bing. 34. 
 
 89 Tras. Mast. & Ser. 55, § 4 ; King v. Barton, 2 M. & S. 329 ; Ryan 
 V. Dayton, 25 Conn. 188 ; Melville v. De Wolf, 4 Ell. & B. 844 ; Turner 
 V. Mason, 14 M. & W. 112 ; Fenton v. Clark, 11 Vt. 557. 
 
138 THE DOMESTIC RELATIONS. 
 
 IV. LIABILITY OF MASTER TO THIRD PERSONS. 
 
 A master is liable for the act of his servant done 
 in the course of his employment.^" 
 
 As to contracts, the liability is governed by the 
 law of contracts and of agency, and does not come 
 within my scope. 
 
 As to the servant's torts and negligence, the uni- 
 versal rule is, that the master is responsible in dam- 
 ages to third persons, for the act of his servant 
 occasioning an injury, whether the act is of omission 
 or commission, in conformity to or in disobedience 
 of the master's order, by negligence, fraud, deceit, 
 or even wilful misconduct, so long as it was in the 
 course of the employment.®^ 
 
 But to establish this liability the relation of mas- 
 ter and servant must exist, with its incident right 
 of control in the master.®^ The relation of contrac- 
 tors does not raise the liability.®^ So if the person 
 causing the injury is engaged on the business of 
 another at the time, but is really the servant of a 
 third party, that other is not liable-; as where a ear- 
 so Helyear ti. Hawke, 5 Esp. 72. 
 
 91 Smith's Mast. & Ser. 151. 
 
 92 Kimball v. Cushman, 103 Mass. 194 ; 4 Am. Rep. 528. 
 
 93 King V. N. Y. Cent. K. Co., 66 N. Y. 181 ; 23 Am. Rep. 37 ; 
 Eaton V. European & N. Ry. Co., 59 Me. 520; 8 Am. Rep. 430; CuS 
 V. Newark, etc., R. Co., 35 N. J. 17 ; 10 Am. Rep. 205 ; McCarthy v. 
 Second Parish of Portland, 71 Me. 318; 36 Am. Rep. 320; Bennett 
 V. Truebody, 66 Cal. 509; 56 Am. Rep. 117. As to injury to con- 
 tractor's servant, see Ewau v. Lippincott, 47 N. J. L. 192 ; 54 Am. 
 Rep. 148 ; Louisville, etc., R. Co. i,. Conroy, 63 Miss. 562 ; 56 Am. 
 Rep. 835. 
 
MASTEK AND SEEVANT. 139 
 
 riage and horses are let out to" hire by the day, week, 
 month, or job, and the driver is selected and ap- 
 pointed by the owner of the carriage, the latter is 
 liable for injury by the driver's negligence, although 
 the carriage may be in the possession and under the 
 control of the hirer.^ 
 
 The master is liable for the consequences to a 
 third person of excessive force or improper means in 
 the execution by the servant of a lawful order.^^ 
 
 As to Negligent Acts. — Although the master would 
 be liable for an injury through the negligence of the 
 driver of his street car to a passenger riding without 
 paying fare, by invitation of the driver ; ^^ because 
 those in charge of the cars are employed to solicit 
 passengers and carry them ; yet he would not be 
 liable for an injury to a bystander at a railway sta- 
 tion, received while helping the fireman take in 
 water, at his request ;^^ nor for an injury received 
 by a bystander while uncoupling cars at the con- 
 ductor's request ; ^ because these servants are not 
 authorized to solicit such aid in their duties. But a 
 passenger, assisting the railroad company's servants, 
 
 ^ Laugher v. Pointer, 5 B. & C. 572. See Ames v. Jordan, 71 Me. 
 540 ; 36 Am. Eep. 352 ; Joslyn v. Grand Eapids Ice Co., 50 Mich. 516 ; 
 45 Am. Eep. 54; Hershberger v. Lynch, Penn. St. ; 37 Alb. 
 L. J. 199. 
 
 95 Higgius v. Watervliet Turn. Co., 46 N. T. 23 ; 7 Am. Eep. 293 ; 
 Phila., etc., E. Co. v. Larkin, 47 Md.-155 ; 28 Am. Eep. 442. 
 
 98 Wilton V. Middlesex E. Co., 107 Mass. 108 ; 9 Am. Eep.xll ; Bren- 
 nan v. Pairhaven & Westville E. Co., 45 Conn. 284 ; 29 Am. Eep. 679. 
 
 9' New brleans, etc., E. Co. v. Harrison, 48 Miss. 112; 12 Am. 
 Eep. 356. 
 
 98 Flower v. Penn. E. Co., 69 Penn. St. 210 ; 8 Am. Eep. 251. 
 
140 THE DOMESTIC EELATIONS. 
 
 at their request, aud injured in that service, may 
 recover of the company .^^* 
 
 If the third person knows the servant's act is con- 
 trary to his employment, he is without remedy ; as 
 where he rides on a freight train with the conduc- 
 tor's assent, knowing it to be against the master's 
 rules or orders ; ^^ but otherwise, if he was igno- 
 rant of the regulation.^"* Again : The master is not 
 liable if the servant's act is so manifestly outside his 
 employment as to carry with it presumptive notice 
 of his want of authority, as where a third person 
 was permitted by railway section-hands to ride on a 
 hand-car, and there received injury.^"^ And so in 
 respect to acts of mere passive negligence resulting 
 in injury to property, the master is not liable where 
 the act cannot under any circumstances have been 
 within the employment ; as where a carpenter, using 
 the plaintiffs shed for his master's work, accident- 
 ally sets it on fire in lighting his pipe.^"^ 
 
 As to Wilful Acts. — The master is not liable for 
 a wrongful, wilful, and unlawful act of his servant 
 toward a third person, although the servant pro- 
 fesses to be acting in the master's employment, if 
 the act is entirely independent and outside of, and 
 
 88* St. Ey. Co; V. Bolton, 43 Ohio St. 224 ; 54 Am. Rep. 803 ; Eason 
 V. Ry. Co., 65 Tex. 577 ; 57 Am. Eep. 606. 
 
 93 Houston & Texas Cent. R. Co. v. Moore, 49 Tex. 31 ; s. c, SO 
 Am. Rep. 98. 
 
 i"" Creed v. Penu. R. Co., 86 Penn. St. 139 ; s. c, 27 Am. Rep. 693. 
 
 Ml Hoar a. Maine Cent. R. Co., 70 Me. 65 ; s. c, 35 Am. Rep. 299. 
 
 102 -Woodman u. Joiner, 10 Jur. (N. S.) 852 ; Williams v. Jones, 3 
 H. & C. 256. 
 
MASTER AND SERVANT. 141 
 
 having no proper connection with the employment. 
 As if the servant should make a wanton and un- 
 provoked assault, or wantonly drive his master's 
 carriage against another.^^^ So where through the 
 negligence of the defendant's driver the defend- 
 ant's carriage-wheels became entangled with those 
 of the plaintiff, and the defendant's driver struck 
 the plaintiff's horses with his whip, and they sud- 
 denly started and overturned the plaintiff's car- 
 riage, the court said : " If a servant, driving a 
 carriage, in order to effect some purpose of his own, 
 wantonly strikes the horses of another person, and 
 produces the accident, the master will not be liable. 
 But if, in order to perform his master's orders, he 
 strikes, but injudiciously, and in order to extricate 
 himself from a difficulty, that will be negligent and 
 careless conduct, for which the master will be liable, 
 being an act done in pursuance of the servant's 
 employment." '^'^ 
 
 To illustrate this distinction: Suppose it to be 
 the duty of a servant to unload a locomotive tender 
 by throwing the wood overboard, and in so doing 
 he accidentally or purposely hits and wounds a 
 bystander; the master will be liable. But if this 
 unloading were no part of his duty at the time, 
 and he should purposely throw a stick at and in- 
 jure a bystander, the master would not be liable. 
 So if a hod-carrier, employed on a third person's 
 
 W8 McManus v. Crickett, 1 East, 106. 
 
 !"♦ Croft V. Alison, 4 B. & Aid. 590. See Limpus t>. General Om- 
 nibus Co., 1 H. & C. 528. 
 
142 THE DOMESTIC EELATIONS. 
 
 house, wilfully bespattered the walls, his master 
 would not be liable ; ^^ but if a painter, employed to 
 paint the walls, should wilfully bespatter them with 
 paint, the master would be liable. So where the 
 crew of a vessel, without the master's knowledge 
 or authority, fired a salute with a cannon on board, 
 and thereby, injured a third person, the master was 
 held not liable ; ^^ but if they had been instructed 
 to fire the salute, and in so doing had accidentally 
 or purposely inflicted the injury, so long as it was 
 not purely felonious, the master would have been 
 liable. So where a general farm-servant, undertak- 
 ing to drive out a trespassing cow from his master's 
 field, struck her with a stone and killed her, the 
 master was held liable. ^"^ And so where a toll-gate 
 keeper, not required to collect toll after nine o'clock 
 at nighty let the beam of the gate down upon the 
 plaintiff, who was endeavoring to pass after that 
 hour, and injured him, the company was held lia- 
 ble. ^°^ So where a ferry pilot took on a boatman, 
 agreeing to put him on his tow in the river without 
 compensation, and diverging from his regular course 
 to do so, collided with a canal-boat and killed a 
 man, the employer was held liable.^™ So where a 
 railway company had ordered its gate-keepers not to 
 allow passengers to go out unless they surrendered 
 tickets or paid fares, and a passenger having lost 
 
 I's Garvey ». Dung, 30 How. Pr. 315. 
 
 W8 Haack v. Fearing, 4 Abb. Pr. (N. S.) 297. 
 
 W Evans «. Davidson, 53 Md. 245 ; 36 Am. Rep. 400. 
 
 108 Noblesville, etc., Co. v. Gause, 76 Ind. 142 ; 40 Am. Eep. 224. 
 
 109 Quinn v. Power, 87 N. Y. 535 ; 41 Am, Eep. 392. 
 
MASTER AND SERVANT. 143 
 
 his ticket refused to pay his fare, and the gate-keep- 
 er caused his arrest by the police, the company was 
 held liable.^"^* But where a solicitor's clerk used a 
 lavatory in his master's ofiBce, in disobedience of 
 his master's orders, and left the water turned on, 
 and it overflowed and injured the premises of a 
 tenant below, it was held that the master was not 
 Uable.u" 
 
 But in respect to public carriers it is held that the 
 master owes the duty of protection of his passen- 
 gers against even wanton assaults by his servants, 
 entirely disconnected from the employment. As 
 where a railway conductor kissed a female passen- 
 ger against her will ; ""* or assaulted a passenger 
 on demanding his ticket ; ^^^ or brakemen unlaw- 
 fully ejected a passenger by the conductor's or- 
 der ;i^ or officers of a steamboat assaulted a pas- 
 senger ; ^^^ or an engineman maliciously sounded a 
 locomotive whistle ; ^^* or a street-car driver threw 
 one off the car platform who had stepped on it to 
 
 W9* Lynch v. Metropolitan Elevated Ry. Co., 90 N. Y. 77 ; 43 Am. 
 Eep. 141. See Stewart v. Brooklyn Crosstown R. Co., 90 N. Y. 588. 
 
 i'" Stevens v. Woodward, 6 Q. B. Div. 318 (but see Euddeman e. 
 Smith, Q. B. Div. ). 
 
 iio» Croaker v. Chicago, etc., Ry. Co., 36 Wis. 657 ; s. c, 17 Am. 
 Eep. 504. 
 
 m Goddard v. Grand Trunk Ey. Co., 57 Me. 202; s. c, 2 Am, 
 Eep. 39. 
 
 112 Passenger Ey. Co. v. Young, 21 Ohio St. 518; s. c, 8 Am. 
 Eep. 78. 
 
 lis Bryant v. Eich, 106 Maas. 180; s. c, 8 Am. Eep. 311 ; Sherley 
 V. Billings, 8 Bush, 147 ; s. c, 8 Am. Eep. 451. 
 
 11* Chicago, etc., Ey. Co. v. Dickson, 63 111. 151 ; s. c, 14 Am. Eep. 
 114 ; Nashville, etc., E. Co. v. Starnes, 9 Heisk. 52 ; s. o., 24 Am. Eep. 296. 
 
144 THE DOMESTIC RELATIONS. 
 
 cross the street ;^^^ or a brakeman kicked a tres- 
 passer from the platform of a baggage car in mo- 
 tion ; 11^ or a baggage-master struck with a hatchet 
 a passenger in a quarrel about baggage ; ^^'' or a 
 brakeman assaulted a passenger, who, resenting the 
 ejection of his dog from a car, first laid hands on 
 the brakeman ; ^^^ even for a malicious and criminal 
 assault by the servant on a passenger in carrying 
 out a supposed order of the master ; '^^ or where a 
 passenger accused a brakeman of having stolen his 
 watch, and the brakeman thereupon struck him;^^ 
 or where the brakeman in washing out a car di- 
 rected a jet of water purposely upon a passenger.^ 
 On the other hand, it has been held that the 
 employer was not liable where a street-car con- 
 ductor pushed a passenger off who was about to 
 alight. ^^ So where a brakeman put a trespasser 
 off a freight train in motion without orders from 
 the conductor.^^^ So where a railway conductor 
 
 "5 Shea V. Sixth Ave. R. Co., 62 N. Y. 180; s. c, 20 Am. Eep. 
 480. 
 
 >" Rounds V. Delaware, etc., R. Co., 64 N. Y. 129 ; 21 Am. Rep. 
 597; Hoffman o. N. Y. C. & H. R. R. Co., 87 N. Y. 25; 41 Am. 
 Rep. 337. 
 
 "7 Little Miami R. Co. v. Wetmore, 19 Ohio St. 110; s. c, 2 Am. 
 Rep. 373. 
 
 118 Hanson v. European & N. A. Ry. Co., 62 Me. 84 ; s. c, 16 Am. 
 Rep. 404. 
 
 iw McKinley v. Chicago, etc., Ry. Co., 44 Iowa, 314 ; s. c, 24 Am. 
 Il,ep> 748. 
 
 120 Chicago, etc., Ry. Co. v. Flexman, 103 HI. 546 ; 42 Am. Rep. 33. 
 
 121 Terre Haute, etc., R. Co. v. Jackson, 81 Ind. 19. 
 
 122 Isaacs u. Third Ave. R. Co., 47 N. Y. 122; 7 Am. Rep. 418. 
 Substantially overruled by later cases. 
 
 128 Marion v. Chicago, etc., Ry. Co., Iowa Sup. Ct. 
 
MASTER AND SERVANT. 145 
 
 had a passenger wrongfully arrested for giving him 
 counterfeit money for his fare.^* And so where a 
 railway conductor stopped his train near the plain- 
 tiff's house, entered the premises, seized the plain- 
 tiffs minor son, and carried him off on the train by 
 force.-'^^ So where a street-car driver followed a 
 passenger and assaulted him.^^^* So where a con- 
 ductor had a passenger arrested for giving him bad 
 money for his fare.^^^t 
 
 Even if the third person is a trespasser, the mas- 
 ter is liable for any excess of force used by the ser- 
 vant, or any improper execution of his order ; as 
 where an intruder was pushed off a train in a violent 
 manner at a dangerous place.-'^^ But for the ser- 
 vant's criminally malicious and wilful act the master 
 is not liable ; ■'^^ as for an intentional killing. 
 
 The master is liable for the trespass of his ser- 
 vant committed by his order ;i28 or in his presence 
 with his foreknowledge ; ^^^ but not when committed 
 against his order. 
 
 The test of the master's responsibility is not 
 whether the act was done according to his instruc- 
 tions, but whether it was done in the prosecution of 
 
 124 Galreston, etc., R. Co. v. Donahoe, 56 Tex. 162. 
 
 125 Gilliam v. Southern, etc., R. Co., 70 Ala. 268. 
 125* Cent. R7. Co. V. Peacock, 69 Md. 257. 
 
 i'5+ Charleston v. London, etc., Co., Q. B. Div. ; 37 Alb. L. J. 102. 
 
 126 Rounds V. Del. L. & "W. R. Co., 64 N. Y. 129; 21 Am. Rep. 
 597 ; Carter v. Louisville, etc., Ry. Co., 98 Ind. 552 ; 49 Am. Rep. 
 780. 
 
 127 Frazer v. Freeman, 43 N. Y. 566 ; 3 Am, Rep. 740. 
 
 128 Barden 1;. Felch, 109 Mass. 154. 
 
 129 Chandler v. Broughton, 1 C. & M. 29. 
 
 10 
 
146 THE DOMESTIC RELATIONS. 
 
 the business that the servant was employed by the 
 master to do.^^" As where the superintendent of a 
 lumber yard, in violation of his employer's direc- 
 tions, piled lumber on a sidewalk, where it fell and 
 injured a person ; the master was held liable.-'^^ 
 
 In regard to the matter of disobedience this dis- 
 tinction must be observed. If the servant in doing 
 a particular act in a particular manner departs from 
 the appointed mode of performance to inflict a 
 wanton injury on a third person, the master will 
 not be liable. As where the owner of a building 
 instructs his servant to throw the snow from the 
 roof into a vacant adjoining lot, where no one 
 would be endangered, and the servant, disregard- 
 ing the direction, carelessly throws it into the 
 street and injures a person, the master will be 
 liable ; but if the servant intentionally threw it 
 on the passer, the master would not be liable, for 
 he had not engaged the servant to throw snow into 
 the street. ^^0 
 
 If the master vests the servant with any discre- 
 tion, the master is liable to third persons for the con- 
 sequences of the servant's abuse or mistake in its 
 exercise.-^^^ 
 
 Tlie master is liable for the consequences to third 
 persons of the acts of the servant's servant in all 
 cases where he would be liable for the same act if 
 
 iwi Cosgrove v. Ogden, 49 N. Y. 255 ; s. c, 10 Am. Rep. 361 ; King 
 V. N. Y. Cent., etc., R. Co., 66 N. Y. 181 ; s. c, 23 Am. Kep. 37. 
 
 I'l Garretzen v. Duenckel, 50 Mo. 104 ; s. c, 11 Am. Rep. 405. 
 
 W2 Limpus u. Gen. Omnibus Co., 1 H. & C. 528. Consult Chicago, 
 etc., Ry. Co. v. McMahon, 103 111. 485 ; 42 Am. Rep. 29. 
 
MASTER AND SERVANT. 147 
 
 done by his servant. As where one, employed to 
 shovel snow from a roof, engaged another to help 
 him, who threw snow on a passer and injured him, 
 the latter recovered from the master.^^ 
 
 Where the injury to the third person occurs while 
 the servant is acting in his own business, although 
 in his master's time and with his master's appliances, 
 the master is not liable.^^* 
 
 V. LIABILITY OP SERVANT TO THIRD PERSONS. 
 
 In respect to contract liability, as a rule servants 
 are not liable to third persons on contracts made on 
 behalf of their masters, unless they act without or in 
 excess of authority.^^ \ 
 
 For misfeasance or positive wrong the servant is 
 liable to third persons.^^^ But for mere negligence 
 or non-feasance the servant is not so liable ; ^^ as for 
 neglect to collect a note;^^ or loss of a parcel .^^^ 
 
 The servant is liable for his negligence toward a 
 fellow-servant.^*" 
 
 It has been held that a joint action will lie against 
 master and servant for a personal injury caused by 
 
 IM Althorf V. Wolfe, 22 N. Y. 355; Qnarman <;. Burnett, 6 M; 
 & "W. 499. 
 
 13« Stone V. Hills, 45 Conn. 44 ; 29 Am. Eep. 635, and note, 640. 
 135 Smout V. Hberry, 10 M. & W. 1. 
 
 133 Sands v. Child, 3 Lev. 352 ; Bennett !>. Ives, 30 Conn. 329. 
 187 Lane v. Cotton, 12 Mod. 488. 
 
 138 Montgomery Bank v. Albany Bank, 7 N. Y. 459. 
 
 139 Williams v. Cranston, 2 Stark. 82. 
 
 V> Osborne v. Morgan, 130 Mass. 102 ; 39 Am. Eep. 437 ; Hinds v. 
 Overacker, 66 Ind. 547 ; 32 Am. Eep. 114. 
 
148 THE DOMESTIC BELATIONS. 
 
 tlie- negligence of the latter in the absence of the 
 former.^*! 
 
 "VT. LIABILITY OP THIRD PEESONS TO MASTEE. 
 
 The master has a right of action against a third 
 person for injury to his servant causing loss of ser- 
 tice.^*^ The action of seduction is a common ex- 
 ample. It has been held that this right exists only 
 in respect to menial servants,"^ but this seems 
 questionable. 
 
 The right exists against a passenger carrier for 
 wrongful delay in carrying a servant.^*^ 
 
 The right exists against one who entices away the 
 servant knowingly and wilfully.^** But not unless 
 the servant was in the actual service at the time.^*^ 
 The ingredients of this action are : (1) actual ser- 
 vice ; (2) knowledge of it in the defendant ; (3) 
 wrongful intent ; (4) the servant's desertion in con- 
 sequence of the solicitation. 
 
 An action also lies for harboiing a servant after 
 notice that his services are due to another.^*^ 
 
 i« Phelps V. "Wait, 30 N. Y. 78. 
 "2 Burgess v. Carpenter, 2 S. C. 7 ; 16 Am. Kep. 643. 
 "5 Ames V. Union By. Co., 117 Mass. 541 ; 19 Am. Kep. 426. 
 w* Daniel v. Swearengen, 6 S. C. 297 ; 24 Am. Eep. 471 ; Bixby 
 V. Dunlap, 56 N. H. 456 ; 22 Am. Eep. 475, and note, 485. 
 1*5 Caughey v. Smith, 47 N. Y. 244. 
 "' Jawcet V. Beavres, 2 Lev. 63, 
 
II^DEX. 
 
INDEX. 
 
 A. 
 
 ABANDONMENT. See Divorce, 66. 
 ACTIONS, 
 
 by husband for enticing away wife, 16. 
 
 by wife for alienatinghusband, 16. 
 
 by husband and wife, the one against the other, 48. 
 
 by infant, 122. 
 
 by parent for injury to child, 81, 82. 
 ADMINISTRATION, 
 
 of husband or wife, 35, 36. 
 
 divorce bars wife's right to, 69. 
 ADOPTION, 
 
 of child, 71. 
 ADULTERY, 
 
 effect on husband's liability for necessaries, 23. 
 
 divorce for, bars dower, 37, 68. 
 
 pending suit, bars divorce, 63. 
 
 See Husband and Wife. 
 ADVANCEMENTS, 88. 
 AFFINITY, 
 
 as obstacle to marriage, 2. 
 
 See Foreign Marriage, 11-13. 
 AGE, 
 
 as an essential of marriage, 5. 
 AGENCY, 
 
 of husband or wife, the one for the other, 48, 49. 
 
 of wife for necessaries, 19-25. 
 
 other than for necessaries, 25, 26. 
 
152 INDEX. 
 
 ALIMONY. 
 
 decree for, effect on husband's liability for necessaries, 24. 
 See DivoBCE, 66. 
 
 ALLOWANCE, 
 
 by husband for wife, effect on husband's liability for neces- 
 saries, 24. 
 ANNULLING DIVORCE, 69. 
 ANTE-NUPTIAL SETTLEMENTS, 55-57. 
 ASSAULT, 
 
 liability of husband or wife, 18. 
 AVOIDANCE, 
 
 of infant's contract, 116-118. 
 
 B. 
 BANKRUPTCY, 
 
 husband's discharge, efEect on wife's debt, 19. 
 BASTARDS, 70, 71, 89. 
 BIGAMY, 6, 
 BLOOD, 
 
 nearness of, as obstacle to marriage, 1, 2. 
 BURIAL, 
 
 husband bound to bury his wife, 36. 
 
 whether widow bound to bury her husband, 36. 
 
 c. 
 
 CAPACITY, 
 
 mental, requisite to marriage, 3, 4. 
 
 physical, requisite to marriage, 5. 
 CARRIER. See MastKr and Servant, 143. 
 CEREMONY, 
 
 not essential to marriage, 10, 11. 
 CHASTISEMENT, 
 
 of wife, husband's right of, 17. 
 CHATTELS REAL, 
 
 of married woman, 31. 
 
INDEX. 153 
 
 CHILDREN, 
 
 axe legitimate or illegitimate, 70, 71. 
 
 See Parent and Child. 
 CLERGYMAN, 
 
 when must perform ceremony of marriage, 10. 
 COERCION, 
 
 of wife by husband, when presumed, 26, 27. 
 COHABITATION, 
 
 when marriage presumed from, 11. 
 
 not sufficient to give right of action to man for injury to 
 woman, 27. 
 CONDONATION, 63. 
 CONFLICT OF LAW, 
 
 as to foreign marriages, 12, 13. / 
 
 CONNIVANCE, 63. 
 CONSANGUINITY, , 
 
 as obstacle to marriage, 2. 
 CONSENT, 
 
 to marriage, 9, 11. 
 
 of parents not essential to marriage, 6. 
 
 of pai-ties, as evidence of marriage, 9-11. 
 CONSTRUCTIVE FRAUD, 
 
 as betweeii husband and wife, 60. 
 
 guardian and ward, 104, 105. 
 parent and child, 87, 88. 
 CONSUMMATION, 
 
 when essential to formation of marriage, 9, 10. 
 CONTRACTS, 
 
 of married woman, when valid, under the statutes, 49, 51. 
 
 wife's, for necessaries, 19-25. 
 CONTRIBUTORY NEGLIGENCE, 
 
 of servant, 130-132. 
 CONVERSION, 
 
 of wife's realty into personalty, 33. 
 ^.of lands into personalty, 33. 
 CORPORATION, 
 
 when liable for servants' acts, 132, 138. 
 
154 INDEX. 
 
 COUSINS, 
 
 marriage between, 2. 
 
 CRIMES, 
 
 of infants, 106. 
 
 when wife not responsible for her, 26. 
 
 of wife, when husband responsible for, 26. 
 CRUELTY. See Divorce. 
 CURTESY, 
 
 husband's tenancy by, requisites of, 32, 33, 35. 
 CUSTODY, 
 
 of wife, husband's right to, 16, 17. 
 
 of child, parent's right to, 75, 76-78. 
 
 how lost, 76-78. 
 
 transferred, 77, 78. 
 
 D. 
 
 DAMAGES, 
 
 measure of, in husband's action for injury to wife, 27, 28. 
 
 in parent's action for injury to child, 82. 
 
 seduction of child, 84. 
 
 of husband, effects of, 36. 
 
 wife, effects of, 35, 36. 
 DEATH, 
 
 no action by survivor for death of husband or wife, 28. 
 DEBTS, 
 
 husband's liability for wife's, 18. 
 
 wife's liability for her own, 19. 
 
 widow's liability for her ante-nuptial, 19. 
 DEEDS, 
 
 between husband and wife, 47. 
 DESERTION. See Abakdonment, 66. 
 DISSOLUTION, 
 
 of inarriage, 63. 
 DIVORCE, 61, 69. 
 
 for nullity of contract, 62, 63. 
 
 dissolution of the contract — adultery, 63, 64. 
 
 connivance, 63. 
 
INDEX. 155 
 
 DIVORCE {continued). 
 
 condonation, 63. 
 
 recrimination, 63. 
 
 from bed and board, 64, 65. 
 
 for cruel and inhuman treatment, 64, 65. 
 
 for unsafe and improper conduct, 66. 
 
 for abandonment and refusal or neglect to provide, 66. 
 
 alimony, 66. 
 
 foreign, 67, 68. 
 
 of other States, 67, 68. 
 
 effect and incidents of, 68, 69. 
 
 custody of children, 68. 
 
 annulling, 69. 
 DOMICILE, 
 
 as to foreign marriage, 12-13. 
 
 husband may appoint wife's, 15. 
 
 of child, how determined, 70. 
 
 when guardian may change, 94. 
 DOWER, 
 
 requisites of, 37, 38. 
 
 how barred, 37, 38. 
 DRUNKENNESS, 
 
 when an obstacle to marriage, 4. 
 DURESS, 
 
 when avoids marriage, 7. 
 
 E. 
 
 EMANCIPATION, 79, 81-85. 
 EMBLEMENTS, 33. 
 ENTICING AWAY, 
 
 child, action for, 82. 
 
 husband, 16. 
 
 servant, 148. 
 
 wife, 16. 
 ENTIRETY, 
 
 tenancy by, 35. 
 EQUITY OF SETTLEMENT, 30. 
 
156 INDEX. 
 
 ESTOPPEL, 
 
 of married woman, 51, 52. 
 
 of husband, 51. 
 EVIDENCE, 
 
 what, establishes marriage, 9. 
 
 P. 
 
 PORCE, 
 
 when avoids marriage, 7, 8. 
 FOREIGN GUARDIAN, 96, 102. 
 FOREIGN MARRIAGE, 12. 
 
 FRAUD, 
 
 constrictive. See Constructive Fraud. 
 
 what, avoids marriage, 7, 8, 9. 
 
 by wife, husband's liability for, 26, 27. 
 FRAUDULENT CONVEYANCES, 
 
 in anticipation of marriage, 55. 
 
 G. 
 
 GIFTS, 
 
 between husband and wife, 57, 59. 
 from father to child, revocable, 81. 
 from child to father, presumptively void, 81. 
 
 See Constructive Fraud; Settlements. 
 
 GUARDIAN. See Guardian and Ward. 
 GUARDIAN AND WARD, 90-105. 
 
 different kinds of guardian defined, 90, 91. 
 appointment of guardian by parent, 91. 
 
 by court, 92. 
 guardian, in fact, 101. ^ 
 
 guardianship, how terminated, 92, 93. 
 
 by marriage, 92, 93. 
 rights of guardian as to person, 94. 
 duties of guardian as to person, 95, 96. 
 
 as to ward's estate, in general, 97-101. 
 powers of guardian as to ward's real estate, 99, 100. 
 
INDEX. 157 
 
 GUARDIAN" AND WARD (continued). 
 
 rights and duties of guardian as to ward's personal estate, 
 
 100, 101. 
 foreign guardian, rights as to person, 96, 97. 
 
 as to property, 100, 101. 
 suits, 101, 102, 103, 104, 105. 
 joint guardians, 101. 
 real estate of ward, sale of, 102, 103. 
 rights and liabilities of ward, 104, 105. 
 marriage of ward, 92, 105. 
 settlements between, 104, 105. 
 
 H. 
 
 HUSBAND AND WIFE, 
 mutual duties, 15. 
 
 husband may appoint the domicile, 15. 
 right to wife's person and society, 16, 17. 
 action for enticing away wife, 16. 
 wife's action for loss of husband's society, 16. 
 husband's right to chastise and restrain wife, 17. 
 wife may defend herself against husband's violence, 118. 
 either indictable for assault on the other, 18. 
 right of testifying, 18. 
 
 husband's liability for wife's ante-nuptial debts, 19. 
 wife's liability for her ante-nuptial debts, 19. 
 discharge of husband in bankruptcy, effect of, on wife's 
 
 debt, 19. 
 promise or payment, as to Statute of Limitations, 19. 
 wife's power to contract generally, 19. 
 
 to convey, 19. 
 
 to bind husband for necessaries, 19. 
 when husband bound for necessaries, 21-26. 
 living apart, when husband bound for necessaries, 22-24. 
 living together, when husband bound for necessaries, 21, 22. 
 alimony, decree for, effect on husband's liability for neces- 
 saries, 24. 
 wife's agency other than for necessaries, 25, 26. 
 husband's liability for wrongs by wife, 26, 27. 
 
158 INDEX. 
 
 HUSBAND AND WIFE (continued). 
 
 when wife not responsible for her crimes, 26. 
 
 husband's liability for wife's crimes, 26. 
 
 when wife not responsible for her frauds and wrongs, 27- 
 
 when her responsibility re-attacbes, 27. 
 
 husband's remedy for wrongs to wife, 27, 28. 
 
 measure of damages in action for, 27, 28. 
 
 wife's property at common law, husband's rights in, 29. 
 
 equity of settlement, 30. 
 
 rights of property under modern statutes, ,30, 31. 
 
 real estate at common law, husband's rights in, 31-34. 
 
 leases for years,iOr chattels real, 31, 32. 
 
 right of survivorship in leases, how defeated, 32. 
 husband's tenancy by curtesy, 32, 33, 85, 40. 
 husband not liable for waste of wife's land, 33. 
 how wife may alienate her realty, 33. 
 tenancy by entirety, 34. 
 
 wife's rights in real estate, how affected by modem stat- 
 utes, 34, 35. 
 on wife's death, husband may administer on her estate, 35. 
 husband's interest in deceased intestate wife's estate, 35. 
 husband bound to bury his wife, 36. 
 wife's rights on death of husband, 36-38. 
 
 dower, 37, 38. 
 
 separate estate in equity, 39-41. 
 husband has right of survivorship in wife's separate prop- 
 erty, 39. 
 wife's separate estate, how regarded under modern stat- 
 utes, 41-43. 
 wife's dominion over her separate estate in equity, 43-45. 
 husband's liability for wife's torts, 43. 
 wife's dominion over her separate estate under modern 
 
 statutes, 45-53. 
 'dealings direct between, 47-49. 
 as agents for each other, 47-49. 
 actions, what may be maintained, by the one against the 
 
 other, 48. 
 ratification of agency, 48. 
 partnership of husband and wife, 45. 
 
INDEX. 159 
 
 HUSBAND AND WIFE (continued). 
 
 wife's separate business and earnings, 49-51. 
 husband's liability for wife's misdemeanor, 50. 
 wife's liability for nuisance, 50. 
 estoppel, 51, 52. 
 liability for husband's tort, 51. 
 husband when responsible for wife's separate business, 51. 
 contracts binding the wife under the statutes, 53. 
 when wife bound for necessaries, 53. 
 wife's power to make will, 54, 55. 
 
 will, how revoked, 54, 55. 
 wife may insure husband's life for her benefit, 60. 
 husband may settle property on prospective wife in consid- 
 eration of marriage, 55. 
 make gifts to wife, 57. 
 See Divorce ; Marriage. 
 
 I. 
 
 IDIOCY, 
 
 obstacle to marriage, 3, 4. 
 
 ILLEGITIMATE CHILDREN, 70, 71, 89. 
 IMPOTENCY, 
 
 obstacle to marriage, 5. 
 
 cause for divorce, 63. 
 IMPRISONMENT, 
 
 of husband, effect on his liability for necessaries of wife, 24. 
 IMPROVEMENTS, 
 
 by husband on wife's land, 83. 
 
 INDIANS, 
 
 marriage of whites with, 3. 
 
 INFANCY, 
 
 general disabilities of infants, 106-109. 
 
 holding office, 106. 
 
 crimes of infant, 106. 
 
 infant's power of testifying, 107. 
 
 wills of infants, 107. 
 
 contracts of infants, 105-110. 
 
160 INDEX. 
 
 INFANCY (continued). 
 
 ■what contracts bind an infant, 107-112. 
 
 infant's contract for necessaries, 109-112. 
 
 what are necessaries for infant, 109. 
 
 what are not necessaries for infant, 110, 111. 
 
 infant husband liable for necessaries, 24. 
 
 other contracts binding infant, 112. 
 
 avoidance of infant's contract, 116-118. 
 
 ratification of infant's contract, 112-116. 
 
 injuries and frauds committed by infants, 118-120. 
 
 committed against infants, 120, 121. 
 
 infant's suits, 122. 
 
 See Divorce, 69. 
 INSANITY, 
 
 obstacle to marriage, 3, 4. 
 
 See Lunatic. 
 INSURANCE, 
 
 by wife, of husband's life, 60. 
 INTERCOURSE, 
 
 sexual, when marriage presumed from, 11. 
 
 refusal of, when ground for divorce, 6. 
 
 not desertion, nor cruelty, 66. 
 
 JOINDER. See Parties. 
 
 L. 
 
 LEASES, 
 
 of married woman, 31. 
 LEGITIMATION, 
 
 of bastard, 70, 71. 
 LIMITATIONS STATUTE OF, 
 
 promise or payment by husband or wife, 19. 
 LUNACY, 
 
 obstacle to marriage, 4. 
 LUNATIC, 
 
 liability for wife's necessaries, 24. 
 
INDEX. 161 
 
 M. 
 MAINTENANCE, 
 of children, 72. 
 MARRIAGE, 
 
 essentials of, 1-11. 
 prior, 6. 
 
 out of State, in disobedience of decree of divorce, 6. 
 foreign, 12, 13. 
 
 the common law theory of, 14, 15. 
 nullity of, 62. 
 dissolution of, 63. 
 of guardian, 92, 93. 
 of ward, 92, 105. 
 MASTER. See Master and Servant. 
 MASTER AND SERVANT, 
 
 the relation and its rights, 123-127. 
 
 who are servants, 123, 124. 
 
 the creation of the relation, 124, 125. 
 
 termination of the relation for disobedience, 126. 
 
 for moral misconduct, 126. 
 for negligence, 126, 127. 
 for breach of contract, 126, 127. 
 by death, 127. 
 rights, duties, and liabilities of master towards servant, 127. 
 master's rights, 127. 
 master's duties, 127-129. 
 
 as to medical attendance, 127. 
 as to explaining employment, 128. 
 as to selection of co-servants, 128. 
 as to machinery, 128, 129. 
 master's liability, 129. 
 
 as to co-servants, 129, 130. 
 as to machinery, 130. 
 who are co-servants, 132-133. 
 
 master's delegation of authority — corporation, 134, 135. 
 
 to general agent, 135. 
 rights, duties, and liabilities of servant toward master, 135- 
 137. 
 
162 INDEX. 
 
 MASTER AND SERVANT (continued). 
 
 servant's remedy for breach of the contract, 136. 
 ■when servant's breach of the contract is excused, 137. 
 servant's liability for misfeasance, 136. 
 
 for negligence, 136. 
 liability of master to third persons, 138-148. 
 general rule as to master's liability for servant's acts, 138. 
 master's liability for servant's negligence, 139, 140. 
 for servant's wilful act, 140-145. 
 distinction between negligent and wilful acts, 141-143. 
 liability of public carrier for servant's wilful act, 143-145. 
 illustrations of the course of the employment, 141-145. 
 liability of master for servant's act toward trespasser, 145. 
 for servant's disobedient act, 145, 146. 
 for act of servant's servant, 146. 
 master not liable for act of servant in his own business, 147. 
 liability of servant to third persons, 147, 148. 
 
 fellow servant, 147. 
 liability of third persons to master, 148. 
 action for enticing away servant, ingredients of, 148. 
 for harboring servant, 148. 
 MISDEMEANOR, 
 
 husband when liable for wife's, 50. 
 
 N. 
 NECESSARIES, 
 
 what are, for married woman, 21. 
 
 what are not, for married woman, 20, 21. 
 
 when husband bound for, 21-25. 
 
 when wife bound for, 51. ^ 
 
 what are for infant, 109. 
 
 what are not for infant, 110, 111. 
 
 infant's agency for, 74, 75. 
 NEGLIGENCE, 
 
 of servant, 130-132. 
 
 of parent, 82, 118. 
 
 of master. See Master and Servant. 
 
 See Contributory Negligence. 
 
INDEX. 163 
 
 NEGROES, 
 
 mairiage of vhites with, 3. 
 NUISANCE, 
 
 wife's liability for, 50. 
 
 PARAPHERNALIA, 31, 36. 
 PARENT, 
 
 consent to marriage not essential, 6. 
 
 See Parent and Child. 
 PARENT AND CHILD, 68-87. 
 parents' duty to protect child, 71. 
 to educate child, 71. 
 to maintain child, 72, 73. 
 when wife bound to support child, 72, 73. 
 parent's right of correction of child, 75. 
 
 of custody of child, 76-78. 
 when mother entitled to custody of child, 76, 78. 
 parent's right of custody how lost, 76-78. 
 
 how transferred, 77, 78. 
 parent's rights to services and earnings of child, 78-80. 
 
 how released, 78. 
 how lost, 79. 
 emancipation, 79. 
 
 parent has no right in child's separate property, 80. 
 gift from father to child revocable, 81. 
 
 child to father presumptively void, 81. 
 parent's action for injury to child, 81, 82. 
 
 seduction of child, 82-84. 
 parent when not liable for child's tort, 84. 
 when liable, 85. 
 
 agency of child for necessaries, 74, 75. 
 duties of children, 85. 
 rights of children, 85-88. 
 
 emancipation, 85-87. 
 after majority, 87. 
 
164 INDEX. 
 
 PARTIES, 
 
 iu actions for wrongs by or to wife, 27. 
 possession of property, 27. 
 for injury to wife's realty, 32 
 PARTNERSHIP, 
 
 of husband and wife, 49. 
 POLYGAMY, 6., 
 
 POST-NUPTIAL SETTLEMENT, 57-60. 
 PREGNANCY, 
 
 prior, when avoids marriage, 8, 9. 
 PRIOR MARRIAGE, 6. 
 PROPERTY OF CHILD, 
 
 father has no right in, 80. 
 PROPERTY OF WIFE, 
 
 at common law, 29-38. 
 
 in equity, 39-41, 43-45. 
 
 under statutes, 30-81, 41-53. 
 
 Q. 
 
 QUARANTINE, 38. 
 
 R. 
 
 RACE, 
 
 mixture of, in marriage, prohibited, 3. 
 RATIFICATION, 
 
 of voidable marriage, 9. 
 
 by husband or wife, the one of the other's agency, 
 
 ■of infant's contract, 116-118. 
 RECRIMINATION, 63, 6i5. 
 ^REDUCING TO POSSESSION, 
 
 of wife's personalty, by husband, 29. 
 REVOCATION, 
 
 of married woman's) will, 54, 55. 
 
INDEX. 165 
 
 S. 
 
 SEDUCTION, 
 
 husband's action for, 28. 
 
 Jjarent's action for, 82-8i. 
 SEPARATION, 
 
 of husband and wife, efiect on husband's liability for nec- 
 essaries, 22-24. 
 
 of husband and wife, voluntary, 61. 
 SERVANT. See Master and Servant. 
 SETTLEMENT, 
 
 on wife, how regarded in equity, 39-41. 
 
 ante-nuptial, 55-57. 
 
 form of, 55, 56. 
 how avoided, 57. 
 
 post-nuptial, 57-60. 
 SISTER, 
 
 deceased wife's, marriage with, 2. 
 SOCIAL CONDITION, 
 
 no impediment to marriage, 3. 
 SOCIETY OF WIFE, 
 
 husband's right to, 16, 17. 
 STEP-CHILDREN. See Step-father 
 STEP-FATHER, 
 
 not bound to maintain step-child, 72. 
 
 nor entitled to his earnings, 80. 
 SURVIVORSHIP, 
 
 husband's right of, in wife's separate estate, 31, 32. 
 
 T. 
 
 TENANCY BY CURTESY, 32, 33, 35, 40. 
 TENANCY BY ENTIRETY, 35. 
 
 TESTIFYING, 
 
 husband's or wife's right of, 18. 
 infant, 107. 
 
166 INDEX. 
 
 VOLUNTARY CONVEYANCE, 
 
 by husband or wife, 55. 
 
 by husband to wife, 55-58. 
 
 as between parent and child, 87. 
 
 W. 
 
 WARD. See Guardian and Ward. 
 WASTE, 
 
 husband not liable for, of wife's land, 33, 
 WIDOW, 
 
 liability for ante-nuptial debts, 19. 
 
 obligation to bury husband, 36. 
 
 promise to pay ante-nuptial debt void, 38. 
 
 right of dower, 37, 38. 
 quarantine, 38. 
 custody of children, 78. 
 
 right to services and earnings of, 80. 
 WILL, 
 
 married woman's power to make, 54, 55. 
 
 how revoked, 54, 55. 
 
 of infants, 107. 
 
 infant's power to make, 107. 
 WITNESS, 
 
 husband and wife as, 18. 
 
 infant as, 107. 
 WRONGS, 
 
 by wife, husband's liability for, 26, 27. 
 
 to wife, husband's liability for, 27, 28. 
 
KF 505 b88 1890 
 
 Author 
 
 Browne, Irving 
 
 Vol.. 
 
 Title Copy 
 
 Eelements of the law of domestic 
 
 relations and of anployer and 
 anplo jred . 
 
 Date Borrower's Name