HUSBAND AND WIFE. The parties tv the marriage relation.
Mutual and Marital Relations. The lia bilities, rights and duties of the husband and wife, both with respect to each other, and as to third persons, necessarily depend large ly upon the legal conception of the relation existing between them which at the time ob tains within the jurisdiction in which they have their domicil. This conception; as will appear infra, has greatly changed in modern times. At common law, the identity of the wife was practically merged in that of the husband, while under modern statutes both the right of individual initiative and action is conferred upon married women to a very large extent. Under the Roman law the pOwer of the husband over the wife was even more absolute than under the English com mon law, and the wife's identity was entire ly merged in that of the husband, who could correct and chastise or sell, and even kill her, though the sale was, in fact, of her labor and not bf her person; see Sohm, Inst. 93 ; Bryce, Stud. Hist. & Jur. 787; but his power in Roman law to kill the wife has been doubted ; Hunter, Rom. L. 224. Not withstanding the greater freedom given to married women under modern statutes, as above stated, the separation of the individ uality of the husband and wife is rather with respect to property rights than personal relations. As to the letter, the merging of the identity of the wife in that of the hus band is still recognized to a large extent This is well illustrated by a case in which under a statute, a person losing money by gambling was permitted to sue for it, and if he failed to do so within three months "any other person" might sue for treble the amount ; it was held that the identity of the loser's wife was so merged in that of the husband that she was not comprehended in the phrase "any other person"; Spiller v. Close, 110 Me. 302, 86 Atl. 173. The personal and exclusive rights of a husband with re gard to his wife's person are invaded by a criminal conversation with her, and such an act, even when the wife consents, is an as sault; Tinker v. Colwell, 193 U. S. 473, 24 Sup. Ct. 505, 48 L. Ed. 754. Case as well as trespass vi of armis will lie; id.
Under the common law he was bound to furnish his wife with a home ; it was his right to choose and establish the domicil; Hair v. Hair, 10 Rich. Eq. (S. C.) 163; and
it was her duty to follow the husband to it; Boyce v. Boyce, 23 N. J. Eq. 337 ; Colvin v. Reed, 55 Pa. 375 ; Powell v. Powell, 29 Vt. 148; 4 Ves. Jr. 798; and this control by the husband of the matrimonial domicil goes to such an extent that au ante-nuptial agree ment of the husband to live in a certain state is not enforceable; Isaacs v. Isaacs, 71 Neb. 537, 99 N. W. 268; and since the domi cil of the husband is the matrimonial domi cil, it is unaffected by a change of residence of the wife ; Anderson v. Watt, 138 U. S. 694, 11 Sup. Ct. 449, 34 L. Ed. 1078; Scholes v. Iron Works Co., 44 Ia. 190; Porterfield v. Augusta, 67 Me. 556.
A wife deserted by her husband may ac quire a separate domicil which, in a suit by her for alienation of affections, gives juris diction because of diversity of citizenship; Gordon v. Yost, 140 Fed. 79 ; and see 19 Harv. L. Rev. 381. See Damien.
A wife is entitled to a home suitable with respect to the circumstances and condition of her husband, over which she shall be per mitted to preside as mistress, and she does not forfeit her right to maintenance by re fusing to live in the borne with and under the control of the husband's mother; Brew er v. Brewer, 79 Neb. 726, 113 N. W. 161, 13 L. R. A. (N. S.) 222; or by refusing to live as a boarder in the home of his family ; Ed wards v. Edwards, 69 N. J. Eq. 522, 61 Atl. 531; Powell v. Powell, 29 Vt. 148 ; Albee v. Albee, 141 III. 550, 31 N. E. 153 ; and a similar rule was applied to permit the hus band to refuse to be subjected to insults from the wife's family; Cutler v. Cutler, 2 Brewst. (Pa.) 511. In addition to furnish ing a home the husband is required to sup ply, to and for his wife, necessaries and con veniences which his fortune and his rank enable him to do, and which her situation re quire; 1 Hurl. & N. 641 ; Wagner v. Nagel, 33 Minn. 348, 23 N. W. 308; but this did not include such luxuries as, according to her fancies, she deemed necessaries; Thill v. Pohlman, 76 Ia. 638, 41 N. W. 385. His ob ligation to support his wife is based upon the policy of the law and not on his contractual relations; 196 U. S. 68.