that purpose. The domicile must of course be bona fide. (2) The proceedings must be according to the rules of international law prescribed as to foreign judgments. (3) The defendant must be actually notified if he can be found. In Pensylvania it is held that his forum must be sought. (Reed v. Elder, 62 Pa. St. 315; Colvin v. Reed, 55 Pa. St. 416; 2 West. Jur. 229, with note. Dorsey v. Dorsey, 7 Watts, 350; 32 Am. Dec. 767; is the leading case.) (4) The place of the marriage or its law is not material. Even in England the lex loci contractus no longer prevails. (5) It is immaterial where the offense was committed or the parties resided at that time. (Aliter in Pa., see above cases.) (6) There must be no collusion. (35) The very being or legal existence of the woman is suspended during the marriage, page 442. The common law is often criticised for the complete absorption of the wife's legal existence in that of the husband, and the control given to the latter over the wife's property. These criticisms are perhaps just enough, if we compare its rules with our present notions of the true relations between the sexes. But when the critics reproach the English people with injustice toward the female sex according to the ideas of their own time, and assume that their law was peculiar in this respect, they err greatly. How completely its provisions reflected the general sentiment of christendom at the time they were formed, may be seen by comparing Bodinus(de Repub. lib. 1, cap. 3, and especially the last paragraph, page 31), who states the husband's rights of property from civilian authors, almost exactly as the English law does, and even declares that settlements giving the wife control of her own property are contrary to all law, human and divine. (Cf. Kame's Equity, p. 151, to same effect in our law.) 1 BLACKST.-65. (36) The husband is bound to provide his wife with necessaries, etc., pages 442, 443. The husband is bound to support the wife by common law, independent of any statute, at his own home. If she leave him of her own accord the duty ceases. If he drive her away or fail to support her there, he is liable to those who furnish her with necessaries, either individuals or town authorities. This is true even where they live apart by agreement. (Rumney v. Keyes, 7 N. H. 576; Charlestown v. Groodand, 15 Gray, 15.) If she wilfully abandons him she does not carry his credit with her or impose any liability on him. That liability depends entirely on his neglect or default (People v. Pettit, 74 N. Y. 320); unless she is insane, then she is incapable of abandoning him, and it is his duty to support her. (Goodale v. Lawrence, 88 N. Y. 513.) For debts of the wife during coverture there can be no obligation at common law, except so far as she can be considered the husband's agent to charge him. While covert she cannot charge herself nor can he charge her. His liability to pay debts of her contracting will depend as a question of fact upon her agency, save in the rare cases where it becomes a question of law by his breach of the duty to provide for her. If he by his conduct render the home unsuitable for her to live in, or wrongfully send her away without any provision for her support, she has the right to buy necessaries on his credit. (Ross v. Ross, 69 Ill. 569; Billing v. Pitcher, 7 Mon. B. 458; Allen v. Aldrich, 29 N. H. 63; Hultz v. Gibbs, 66 Pa. St. 360.) If they separate by consent, and he furnish her no suitable support, his obligation for her necessaries continues (Rumney v. Keyes, 7 N. H. 571; Baker v. Barney, 8 Johns. 92; 5 Am. Dec. 326); but if he make her an allowance sufficient to support her, or otherwise provide for her, he cannot be charged by her or others for such necessaries (Mott v. Comstock, 8 Wend. 544; Nurse v. Craig, 5 Bos. & P. 148, reviewing English cases); and whether the provision be sufficient will be a question of fact for the jury. (Pearsen v. Darrington, 32 Ala. 227.) If the separation be her fault, no liability attaches to him. (Allen v. Allen, 29 N. H. 63; Porter v. Bobb, 25 Mo. 36; McCutchen v. McGahay, 11 Johns. 281; 6 Am. Dec. 373.) That the husband's liability for contracts made by the wife during coverture, and while both are discharging their marital duties, rests solely on agency, and that the agency is a matter of fact not law, is fully shown in Benjamin v. Benjamin, 15 Conn. 347; 39 Am. Dec. 384; Sawyer v. Cutting, 13 Vt. 489; Butts v. Newton, 29 Wis. 637; even when the contracts are for necessaries. (Tuttle v. Hoag, 46 Mo. 43.) Even for actual necessaries furnished the wife, the vendor cannot recover without showing that the hus→ band has not supplied her, the burden of proof of the negative being on him. (Rea v. Durkee, 25 Ill. 503; Mitchell v. Treanor, 11 Ga. 324; 56 Am. Dec. 421; Kimball v. Keyes, 11 Wend. 33; Barr v. Armstrong, 56 Mo. 577.) But if the husband is in default a notice not to supply the wife on his credit will be of no avail. (Church, C. J., in Daubney v. Hughes, 60 N. Y. 187; Black v. Bryon, 18 Tex. 467.) Upon his liability generally for support, cf. Cunningham v. Irwin, 7 Serg. & R. 247; 10 Am. Dec. 458, and n. Upon the connection and distinction between this and his right to earnings, Norcross v. Rodgers, 30 Vt. 588; 73 Am. Dec. 323. The husband's liability for necessaries is made by some cases to be the counterpart of cohabitation, and the consequent right to her obedience and services. "The duties of the wife while cohabiting with the husband form the consideration of his liability for her necessaries." (McCutchen v. McGahay, 11 Johns. 281; 6 Am. Dec. 373; Thornton, J., in Martin v. Robson, 65 Ill. 129, 135.) From the legislator's or moralist's point of view this is no doubt true, but not from the lawyer's. It is much on a par with the statement that he is liable for her debts, because he has her property. (65 Ill. 136; 2 Bright's H. & W. p. 2; Tyler on Coverture, ?? 216, 233.) Both are consequences of a single cause, but no causal connection exists between them. If it were so, his liability would cease with cohabitation, and some new reason must be found for it when he turns her out of doors. The true ground is still the unity of person. A married woman is as liable for torts as a single woman. There is nothing in her coverture to exempt her from the rights and duties imposed by the general law of the land on all alike, or from the consequences of their violation. Hence there is no such distinction between torts committed dum sola and during coverture, as there is between debts or contracts in the two cases. And "the distinction between the liability of the husband for the contracts of the wife before marriage, and for her torts during marriage [as well as before] is too dim to be easily seen." (Thornton, J., in 65 Ill. 136.) But there are two important qualifications of her liability for these torts: (1) She is not liable when she is under coercion of her husband, actual or implied. (2) The liability can be enforced during coverture only on the joint person. If he dies it survives against her. If she dies it dies with her. Frauds by the wife as well as her other torts come under this rule. "But where the fraud is directly connected with the contract with the wife, and is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, and the husband be sued for it together with the wife. If this were allowed, it is obvious that the wife would lose the protection which the law gives her against contracts made by her during coverture." (Per Pollock, C. B., 9 Ex. 429; leading cases, Cooper v. Witham, 2 Keb. 399; Adelphi Loan Assoc. v. Fairhurst and Wife, 9 Ex. 422, 1854.) In other words, "where the husband is liable for the torts of his wife, the tort upon which such liability is founded must be a tort simpliciter, and not one which is either founded upon or connected with a contract. Where the wife makes a representation which is in fact false, and fraudulently made to her knowledge to a third party, who by giving credit to it is thereby induced to enter into a contract, the husband is not liable for that tort, but the party who believes a representation so made must bear the consequences of his own credulity." (Arguendo, 9 Ex. 428.) If the wife be damnified by a tort to her person or reputation, the right of recovery is in her of action, in the joint person. He cannot sue without her (Johnsen v. Dicken, 25 Mo. 580); nor she without him. But the action survives to her, not to him. The husband's liability cannot be prevented from arising on marriage by any agreement between husband and wife, or any antenuptial settlement by which it was stipulated that each should have exclusive ownership and control of their own property, which should be exempt from liability for the antenuptial debts of the other. A note given by the wife before marriage is collectible from both during coverture in spite of such agreement. (Obermyer v. Greenleaf, 42 Mo. 304.) The same rule applies to torts. It is not affected by the fact that she has a separate estate. (Callahan v. Patterson, 4 Tex. 61; Neit v. Johnson, 11 Ala. 615; Strong v. Skinner, 4 Barb. 516; Methodist Church v. Jaques, 1 Johns. Ch. 450.) But in most respects the above doctrine as to her Immunity from obligations in personam is greatly changed by statute, which gives her the enjoyment of her own separate estate. The best account I know of the various married women's acts, in different states, allowing them to take, hold, convey, and devise separate property, etc., is in 6 S. L. Rev. p. 633, by Henry Hitchcock, of the St. Louis bar. The acts themselves will be found collected in 76 Am. Dec. 337-401. |