Page:The American Cyclopædia (1879) Volume IX.djvu/95

HUSBAND AND WIFE 87 plied by law ; or else upon his marital duty as husband. If it stands upon the former foun- dation, it must follow that he may always pre- vent his liability by express refusal and prohi- bition; or, in other words, that he always has the power to limit or prevent his liability. If it stands on the foundation of his marital duty, this he is bound to discharge, and his prohibi- tions are of no effect. The former was the unquestionable rule in England and here until very recently, no other ground for the husband's liability being recognized in any way than his authority express or implied ; and therefore it was held that if a wife lived with her hus- band, no one could recover from him the price of any necessaries supplied to her, under any circumstances, against his prohibition. Thus, Chief Justice Hale said (1 Siderfin, 109): "The law will not presume so much ill, as that a husband should not provide for his wife's ne- cessities." At length, however, it began to be seen that there might be cases of incapacity, as where the husband was wholly insane, and could not be supposed to constitute an agent or confer authority upon any one ; and yet it could not be supposed that the wife was to be deprived of the necessaries of life which her husband's means were amply sufficient for, be- cause he could not authorize the purchase of them. Again, we have seen that the husband who drives his wife abroad sends his credit with her ; but the absurdity of supposing that he constitutes her his agent struck the court. Baron Alderson said (Read v. Legard, 6 Exch., 636): "It is a monstrous proposition that a man who drives a woman out of doors, who hates, who abominates her, actually gives her authority to make contracts for him." In that case the principle was recognized that the right of a wife to a proper support grows out of the marital relation, and that the liability of the husband for necessaries supplied to her is a consequence of that right. This case was so decided in 1851 ; but like decisions had pre- viously been made in this country, and are now the settled law. It must be remembered, how- ever, that there is an essential difference be- tween the case where husband and wife cohabit, and that where they live apart. In the first, the presumption of law is strong against the husband ; and he can resist payment for sup- plies furnished only by showing that they were not necessaries, either because they were un- reasonable and inappropriate in kind or in amount, or that the wife was sufficiently sup- plied elsewhere. But if she have separated from him, no such presumption exists. Who- ever supplies the wife now, takes upon himself the risk of being able to show that she needed what he gave her, and that there was no such sufficient cause for the husband's withdrawing his support of her as would destroy his liability for what was furnished to her. As to the sep- aration of husband and wife by mutual con- sent, the law has always regarded it as a kind of voluntary divorce, and formerly refused to admit or acknowledge it in any way. Of late years, however, it seems to be otherwise. It is still a rule of the common law that husband and wife cannot contract with each other, be- cause they are not two persons, but one. Hence no bargain which they can make directly with each other has any force or effect at law. But if they make their bargain through and by means of a third person, by way of trustee, and enter into certain covenants with him, a court of equity, and for some purposes a court of law, would permit this trustee to maintain such actions as might be necessary to give full effect to the bargain, although its only purpose were to provide for the separation of the parties. There are, however, two qualifications to tliis rule. One is, that if the court see that the terms of separation are catching, oppressive, or unreasonable, they will not carry them into effect. The other is, that the locus ptenitentice is always kept open. Although the bargain provides that the separation shall be perpetual, and all its terms are founded upon this suppo- sition, and are clothed for this purpose in the most stringent language, yet, as soon as either party wishes the separation to cease, it must cease. The husband cannot deprive himself of his right to recall his wife ; and she cannot deprive herself of her right to return. By the " custom of London," a married woman may be a sole trader there, but nowhere else in England. In the United States, partly by statute and partly by adjudication, a married woman would generally be permitted to carry on business on her own account, much as a single woman might, in case of continued aban- donment, or long imprisonment of the Iras- band, or alienage and non-residence, or with the knowledge and consent of the husband, which might be inferred from circumstances. It should be added that the husband is liable for the wife's wrong doings in many cases ; as for her libel, slander, fraud, cheating, and gen- erally for injurious misconduct. If she com- mit a crime in his presence, the law presumes that he ordered it; but he may remove this presumption by evidence of its falsity. Im- portant changes have been made in the com- mon law by statutes in the several states of the American Union. In Maine, the property owned by the woman at marriage or acquired afterward remains hers, and she has the same rights as any other owner in respect to it, ex- cept that if the property came from the husband she cannot dispose of it without his joining. In New Hampshire, after three months' deser- tion or any act of the husband entitling her to divorce, she may hold and dispose of the prop- erty by her acquired and the earnings of the minor children, and the judge of probate may order provision made for her from her hus- band's property in the state, and her property shall descend oh her death as if she were single. A married woman may will her property to any one except her husband, but not cut off his right by the curtesy. In Vermont, the sn-