WIFE; HUSBAND and WIFE. Many of the legal incidents attached to the relation of husband and wife, or, as they are called in our law books, Baron and Few, have been already noticed under their several heads : the mode of contracting the connection may be found under )1anatatte, and of dissolving it, under Dtvones ; the provision for the wife out of her husband's real estates, made by the common law and modified by statutes, is treated of under DOWER; and the right derived from the same source by the husband to a life interest in Lis wife's real estate if lie survives her and has had a child capable of inheriting, wider COURTESY OF ENGLAND; the voluntary proviaion which may be made for the husband, the wife, and the offspring of the marriage, is discussed under SETTLESIMIT and JOINTURE; and the nature of the property which the wife has, if not independently of her husband, concurrently with is described under PARAPHERNALIA and SEPARATE PROPERTY. The article PARENT AND CHILD shows what little right the law has concedetl to the wife with regard to the children of the marriage. It is, therefore, only necessary now to give a general sketch of the subject, so as to bring the separate parts under one view, and to supply such information as may not yct have been given.
The common law treats the wife (whom It calls a fern° covert, and Ler condition coverture) as aubject to the husband, and gives him leave to exercise over her reasonable restraint, and it has been said to inflict on her moderato chastisement. The wife may now, however, obtain security that the husband shall keep the peace towards her. It looks on the husband and wife in most respects as ono person, having only one mind or will, which is exercised by the husband. Hence a wife cannot sue separately from her husband for injuries done to her or to her property, or be sued alone for debts, unless her husband shall have abjured or been banished the realm ; or she has obtained a judicial separation, or protection for her earnings, in con sequence of his having deserted her; or unless where, by particular customs, she is permitted to trade alone, as in London; but even here the husband should be joined as defendant by way of conformity, though execution will home against the wife alone. For injuries to the wife's person or property the remedy is by a joint actiou, or some times by the aeparato action of the husband. Hence again not only can they not in any case, by the common law, contract with or sue one another ; but compacts made between them and all debts con tracted towards each other when single (unless those made in consi deration or at least in contemplation of marriage) are made void at the common law by their union. This rule does not, however, apply to debts due from the husband to the wife in a representative character, as adminiatratrix or executrix, for instance. They cannot make grants one to another to take effect during the joint lives; nor can the wife, excepting in the exercise of a power, devise lands to her husband or to any other person ; but the husband may devise to his wife property to be enjoyed by her after his death. They can give evidence, however, touching one another, except in criminal cases, or proceedings arising out of or relating to adultery. In criminal prosecutions, however, fouuded on injuries committed by either party on the person of the other, the iujured party may (ex ucces,itate rei) be a witness. Neither cau rob the other in the contemplation of law. The property of both is, with some modifications, liable to the debts of either, and with the person of his wife the husband takes the liability to her debts con tracted before marriage ; but those debts are only recoverable during the wife's life. If she dies before him, he is relieved from that re
sponsibility, whatsoever fortune he may have had with her, excepting that he must apply to the discharge of such debts any assets which are received by him as his wife's administrator. As the law considers the wife to be under the perpetual control of her husband, it relieves her from responsibility for offences short of murder and high treason com mitted at his instigation—the evidence of that instigation being hie presence during the commission of the offence. For the same reason all deeds executed by her are void; unless in fulfilment of powers vested in her or under the guarantee of certain solemnities to ensure her free agency. A disposition by a woman of her property after the commencement of a treaty for marriage, without the privity and con currence of her intended husband, is deemed by courts of equity to be fraudulent, and will be set aside after the marriage as an injury to her husband; a will made before marriage is also revoked by tho sub sequent marriage of the party making it. [Witt AND TESTAMENT.] This legal identity cannot be dissolved, whether in the eyes of the civil or ecclesiastical courts, by any Voluntary act of the parties. Thus no deed of separation, unless it contains an immediate and certain pro vision for the wife, and no advertisement or other public notification will relieve a husband from tho liability to provide his wife with necessaries fitting to her rank in life (the question of fitness being decided by a jury), or consequently from the duty of paying the debts contracted for such necessaries, if she has been driven from his house by his misconduct. On the other hand, a wife cannot recover at law from her husband from whom she lives apart any allowance which he has contracted with herself to pay her in consideration of the separa tion, if he desires that their union should be renewed. Nor again is a deed of separation a sufficient answer to a suit promoted by either party for restitution of conjugal rights; far less is it an answer to the charge of adultery committed either before or after separation. (Hag gard s Consistory Reports,' i. 143.) But this union may be dissolved, when sought for, bond fide, by either party without collusion with the other, as a remedy for that other's conjugal offences [Dtvonee); and the dissolution relieves the husband of his responsibility for his wife's debts contracted after the decree is pronounced, or, in case of his wife's adultery, contracted after the discovery of the adultery and the consequent separation ; for if no separation takes place, or if the husband abandons his usual residence to his wife and her paramour, he will be liable to debts con tracted by her with tradesmen who are ignorant of the facts. So too, by the common law, a husband is not liable for the debts of his wife contracted after she has quitted his house without sufficient cause, and he has given particular notice to the tradesmen that he will not pay her debts,. Still leas is he liable for debts contracted while she is living in open adultery. On the other hand, where the separation or divorce is obtained by the wife on account of the cruelty or adultery of her husband, the court continues on him tho duty of maintaining her (if her separate property will net enable her to live according to her rank in life) by requiring Lim to make her an allowance propor tionate to his means. [Austoxv.] The common law recognises this right of the wife in such circumstances to an allowance under the name of her estovera ; and grants her a writ for the recovery of them ; but this remedy is now never resorted to.