CHAPTER XXXIII.

HUSBAND AND WIFE.

§ 443. Right to marry.-A refusal to perform a promise of marriage is only a breach of contract, the remedy for which is in general the same as for breach of any other contract. It sometimes happens that a fraud becomes mingled in the making or breaking of the promise, and in such case the whole becomes a tort. For example, if a man of negro blood, pretending to be white, should induce a white woman to enter into an engagement for marriage with him, such marriage being illegal, there would be a wrong whether the marriage ceremony were performed or not. The same would be true if one of the parties were already married.

If third persons wrongfully interfere with mutual promises of marriage and break the engagement an action lies in favor of the one injured. But, generally, such a wrong will be one that is actionable upon some other ground.

§ 444. Marriage.-Under this head there are to be considered, first, the formation of the relation; second, the rights, duties and liabilities that arise out of marriage, and third, its dissolution.

Marriage is defined to be the lawful union of one man with one woman, to the exclusion of all others, by a bond that can not be dissolved by the act of either

or both, and can only be dissolved by the authority of the state. If the union be made as a temporary arrangement, to be ended at the pleasure of either party, it is not a marriage.

§ 445. Illegal marriage.-In order to be a valid marriage, the union must be lawful. Some persons are by law incompetent to marry and marriage between certain classes is prohibited. The subject is

controlled by statute of the various states, and the legislation has not been harmonious. Some of the principal grounds upon which marriages are prohibited will be stated.

The marriage of near relations is forbidden, the degrees varying in the several states. Marriage between a black and a white person is in many states void, in some others is punishable criminally. If either party is physically incapable of marriage, it is null and void. If either party have a wife or husband living, the second marriage is void. A marriage procured by force or fraud is voidable at the option of the party wronged.

§ 446. Marriage ceremony.-The law contemplates that the marriage ceremony shall be attended with some degree of publicity. Usually, only a judicial officer or minister of the gospel is by law allowed to solemnize marriage. A license by the state must usually be obtained. Violation of such provisions does not generally invalidate the marriage. Any marriage may be valid, if the parties in the presence of witnesses declare that they then and there take each other as husband and wife.

§ 447. Foreign marriages.-It is a well settled principle that a marriage valid where it is cele

brated will be deemed valid everywhere, and one invalid where celebrated will be deemed invalid everywhere. This, however, is subject to the exception that if the marriage be deemed immoral or incestuous in the domicile of the parties, and they go into another country merely to evade the law of their own, the marriage will be void.

§ 448. Duties and rights of husband and wife.The duty of the husband is to love and protect the wife, and to provide for her according to his means and condition. The duty of the wife is to love, honor and obey the husband. The husband has the right to select the domicile, and it is the wife's duty to follow him. The husband has not now any right to chastise or restrain the wife, whatever may be her fault, and neither can be compelled to live with the other. It is the duty of the husband to provide for the offspring of the marriage, according to his station. By reason of the fiction of legal unity of husband and wife, and also upon grounds of public policy, husband and wife can not be compelled to, and will not be permitted to, testify as to communications made between them. And formerly they were not allowed to be witnesses for or against each other.

At common law a husband was liable for his wife's antenuptial debts, and the wife could make no contract that bound her. In most of the states legislation has greatly enlarged the powers and liabilities of married women, so that now ability seems to be the rule and disability the exception. A wife may be the agent of her husband, or the husband may be agent for the wife. A wife may always bind her husband for necessaries furnished her, and what

these are depends largely upon the condition of the parties. Formerly, a husband was liable for all wrongs done by his wife; now, however, keeping pace with the enlargement of her rights and powers, a married woman is liable for her own wrongs, and the husband is not liable except for such as he was party to. The law now is in nearly all states that a married woman may own property the same as if unmarried, and but few limitations are placed upon her power to dispose of her property.

§ 449. Divorce.-Many of the duties owing from a husband or wife to the other are of imperfect legal obligation, in that performance of them can not be enforced, but for some of the grosser violations of the marriage contract, the law gives a remedy by divorc ing the parties. What shall be cause for divorce is the subject of diverse statutes in the various states. Generally the causes are adultery, abandonment, failure to provide, or cruelty. The suit to put an end to the marriage contract differs from the ordinary suit upon contract, in that the plaintiff's domicile, and not the defendant's, fixes the place for beginning suit. The reason for this is that there is more than a contract involved, namely, the legal status of the party complaining. On account of the interest the state has in the marriage, the parties have no legal right to agree upon a decree of divorce, but the court may, and usually does, hear some evidence.

If cause for divorce exists, the court usually allows alimony to the wife, if she is the innocent one. It is usual in estimating alimony to base it upon the value of the wife's interest in her husband's property.

§ 450. Injuries between husband and wife.-At common law the legal existence of the wife merged in her husband. No suit in her name could be maintained unless he joined. There was scant redress by civil suit for any injury done by one to the other, and but few injuries were punished criminally. As has been said, the tendency of legislation has been to detroy the legal fiction that husband and wife are one person, and to treat them as separate individuals, especially in their property rights. In some states statutes have placed the wife on such a footing that she can sue her husband for any civil wrong, the same as if unmarried. In others the courts have been conservative, and have restrained what was apparently the liberal intention of the legislature, and the wife is not allowed to sue her husband for many civil wrongs.

§ 451. Injuries by third person.-The right to recover for injuries done by a third person to husband or wife depended originally on the right each had to services of the other, and the damage consisted in the loss of such services.

From the fact that at common law a wife was the inferior person, it followed that she suffered no legal damage by the loss of her husband's society and services, and hence she was not permitted to recover damages for any personal injuries to him, nor for his being enticed away whereby she was deprived of support.

With the statutory enlargements of the wife's rights the courts have gradually enlarged her rights as to her husband's society, until now it is generally