bind him by her contracts, except when she acts as his agent. (a) If she had contracted debts before marriage he becomes liable for them, whether he obtained property by her or not; but this liability can only be enforced during the coverture; for the death of the wife discharges the husband; and the death of the husband discharges his property. (b) Finally, the husband is liable for any civil injuries, technically called torts, committed by the wife during coverture, (c) but not for her crimes.

§ 104. Rights and Liabilities of the Wife. The condition of the wife may be inferred from what has already been said. She is almost entirely at the mercy of her husband; she can exercise no control over his property or her own. As a general rule, she can make no contracts binding herself or him. (d) With the exception

them should make any enquiries at the time. Eames v. Sweetzer, 101 Mass. 78. The burden of proof is on the plaintiff to show the facts necessary to charge the husband. Keller v. Phillips, 39 N. Y. 351; Woodward v. Barnes, 43 Vt. 330. He is liable for necessaries when she lives separate from him with his consent. Corley v. Green, 12 Allen, 104. Even though he makes her an allowance, if that be too small for his condition in life. Baker v. Sampson, 14 C. B. (N. s.) 383. But he is not liable

when she deserts him without good cause. Brown v. Mudgett, 40 Vt. 68; Munroe Co. v. Budlong, 51 Barb. 493; Sturdevant v. Starin, 19 Wis. 268. Even though she be guilty of adultery, he will be liable for necessaries if he has been guilty of the same thing. Needham v. Bremner, L. R. 1 C. P. 582. If the husband introduces a woman of profligate habits into his house, and permits her to remain there as an inmate, thereby rendering it unfit for a modest and chaste woman to live in it, his wife will be justified in withdrawing from his protection, and he will be bound to provide her with necessaries. Descelles v. Kadmus, 8 Clarke (Iowa), 51. (a) Reneaux v. Teakle, 20 Eng. Law & Eq. 345, and notes. Tebbetts v. Hapgood, 34 N. H. 420; Gilman v. Andrews, 28 Vt. 241; Gill v. Read, 5 R. I. 343; Ruse v. Chilton, 26 Missouri, 598; Johnstone v. Sumner, 3 Hurl. & Nor. 261; Mayhew v. Thayer, 8 Gray, 172; Hall v. Weir, 1 Allen, 261; Rea v. Durklee, 25 Ill. 503; Keller v. Phillips, 40 Barb. 300; Cromwell v. Benjamin, 41 Barb. 558. In England, it has been held, that, although liable for necessaries furnished to the wife, the husband is not liable for money loaned to the wife, although used by her in the purchase of necessaries. Knox v. Bushell, 3 C. B. (N. s.) 343. In Massachusetts, however, a man was allowed to recover for money paid to a doctor for necessary medical attendance upon the wife. Mayhew v. Thayer, supra.

(b) 2 Kent, Com. 143, 144: Cole v. Shurtleff, 41 Vt. 311. This rule has been changed by statute in some of the States. In Mississippi it is done away with. Dunbar v. Meyer, 43 Miss. 679; Cannon v. Grantham, 45 Miss. 88. In Georgia it is limited to the property received by him from her by the act of 1856. The married women's act of 1861 of Ill. does not affect it. Connor v. Berry, 46 Ill. 370. Nor that of New York or Ohio.

(c) 2 Kent Com. 149. The new York act exempts the husband from liability for torts committed by her in the management of her separate property, but no further. Rowe. Smith, 45 N. Y. 230; Baum v. Mullen, 47 N. Y. 577

(d) Although it is the general rule of the common law, that a married woman cannot contract or sue alone, there are exceptions to the rule, as where there is a separation induced by his cruelty, and they are living in different countries. Wagg v. Gibbons, 5 Ohio State, 580. See Benadum v. Pratt, 1 id. 403; Smith v. Silence, 4 Iowa, 321. But where the ground is desertion, it must be such a desertion as amounts to a renunciation of marital rights on the part of the husband. Ayer v. Warren, 47 Maine, 217. See act of April 17, 1857, empowering a married woman to sue in cases of desertion, neglect, or inability of the husband. Though a married woman's note is not binding upon her at law, yet she may mortgage her separate property to secure such a note, or a debt of her husband, and such mortgage will be binding. Bartlett r. Bartlett, 4 Allen, 440; Brookings v. White, 49 Maine, 479; State v. Montgomery, 35 Miss. 83; Shelby v. Bartis, 18 Texas, 644. But in Kentucky, she can only encumber her property by an order of court. Pell v. Cole, 2 Met. (Ky.) 252. Where an executory contract has been fully performed on the part of a married woman, it has been held that she can sustain an action upon it. Ham v. Boody, 20 N. H. 411. And

just stated her contracts are not merely voidable, but absolutely void. Nor can she make herself liable for his contracts, torts, or crimes. Her only separate liability is for her own crimes; her only joint liability is for her own torts, committed without his participation; and for contracts, in which the law authorizes her to unite with him. She has no power over his person, and her only claim upon his property is for bare support. In no instance can she sue or be sued alone in a civil action; and there are but few cases in which she can be joined in a suit with him. (a) In Ohio, but hardly anywhere else, she is allowed to make a will, if haply she has any thing to dispose of. On the ground of an indissoluble union of interests, and in order to prevent connubial harmony and confidence from ever being disturbed, it is a general rule of law, that neither the husband nor wife can, in any case, civil or criminal, be a witness for or against the other; an exclusion which belongs to no other of the domestic relations. This rule sometimes produces hardship, but on the whole is supposed to be salutary. There are but two exceptions, which grow out of the necessity of the case. The one is where the wife has acted as the agent of her husband in business matters; the other, where she has received personal violence from him. In these cases, and these only, if there be no other witness, she is permitted to testify. Nor does the general exclusion continue only during coverture; it lasts for ever, with respect to all matters which transpired during coverture; in order that there may be every motive for the most unlimited mutual confidence. (b)

in equity generally, a married woman's contracts will be sustained and made binding upon her separate estate, where made with the intention that they should bind such estate, and for its benefit, in order to prevent manifest injustice. Glass v. Warwick, 40 Penn. State, 140; Pentz v. Simonson, 2 Beasley, 232; Koontz v. Kalb, 16 Mo. 549; Knox v. Jordan, 5 Jones, Eq. 175; Parker v. Kane, 4 Allen, 380; Gardner v. Gardner, 7 Paige's Ch. 12; Ballin v. Dillage, 37 N. Y. 35.

(a) By the last amendment of § 28 of the code, 67 Ohio Laws, 111, the husband must be joined, except where the action concerns her separate property, or is between herself and her husband; and in every such case her separate property is to be liable to any judgment rendered therein against her to the same extent as would the property of her husband were the judgment rendered against him. She is no longer required in any event to prosecute or defend by her next friend.

(b) Cook v. Grange, 18 Ohio, 526. But a widow is a competent witness against her husband's administrator, where her testimony is not a violation of his confidence, or a disclosure of his conversations or admissions, or prejudicial to his interests. Stober . McCarter, 4 Ohio State, 513. The act of Feb. 14, 1859, repealing the 314th section of the code, among persons incompetent to testify, classes "Husband and wife, for or against each other, or concerning any communication made by one to the other during the marriage, whether called as witness while that relation subsisted, or afterwards, except in actions where the wife, were she a feme sole, would be plaintiff or defendant, in which action the wife may testify. Either the husband or wife may testify, but not both." This section is amended in this respect by the act of April 18, 1870, 67 Ohio Laws, 111, to read as follows: "Husband or wife concerning any communication made by one to the other, or any act done by either in the presence of the other during coverture, unless such communication was made or such act was done within the known presence, hearing, or knowledge of a third person, competent of being a witness, whether the husband or wife be called as a witness while the rela tion subsists or otherwise." Neither under the civil code nor the code of criminal procedure are the husband or wife competent witnesses for or against each other in criminal prosecutions. Steen v. The State, 20 Ohio St. 333. Under the last

§ 105. Divorce. (a) It has always been deemed the policy of the law, to hold marriage as nearly indissoluble as the nature of the case will admit; and therefore, unlike other contracts, marriage cannot be cancelled or dissolved by the consent of the parties. They may indeed agree to live separately, but the law still regards them as husband and wife. They can only cease to be such by divorce or by death; and it is generally agreed that divorces ought not to be granted but upon very urgent and pressing reasons. But on this subject there is great diversity of legislation in the different States; and, as a general remark, the English are much more strict in their requisitions than we are. In Ohio, the liberal doctrine has been carried so far, that a proposition was once discussed in the legislature, submitting all questions of divorce to the discretion of a jury; but, fortunately, we have stopped a little short of this. In Ohio, the cognizance of divorce and alimony is given to the supreme court and court of common pleas, sitting as a court of chancery. Practically, this seems not to be understood as excluding the legislature, which has often undertaken to grant divorces, though this would seem to be unconstitutional, as an assumption of judicial power. (b) The causes of divorce, as defined by statute, are as follows: 1. Either party having a former husband or wife living. 2. Wilful absence of either party for three years. 3. Adultery of either party. 4. Impotence. 5. Extreme cruelty. 6. Fraudulent contract. 7. Gross neglect of duty. 8. Habitual drunkenness for three years. 9. Imprisonment in the penitentiary. 10. Divorce in another State, leaving the applicant here bound by the marriage contract, when the other party has been discharged. These are the only causes expressly specified in the act relating to divorce; but there are probably two other causes; namely, being nearer of kin than first cousins, and being under the marriageable age. These causes render the parties incompetent to marry; and the only doubt is, whether void marriages can be the subject of divorce; but as the statute has expressly provided for one such case, where there is a former husband or wife living, I see no reason why these should not be placed on the same footing. Of the above-named causes of divorce, the only three which are vague and amendment, she is competent to testify for herself in an action against a third person regarding her separate property, except as to communications or acts between herself or her husband made during coverture. Robinson v. Chadwick, 22 Ohio St. 527. The 29th section of the code provides that "if a husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also." And the 28th provides that when she is a party, her husband must be joined with her, except in actions concerning her separate property, or in actions between her husband and herself. Where her separate rights are not involved, and they are necessarily joined, the husband can control the action. Coolidge v. Parris, 8 Ohio State, 594.

(a) See the 27th lecture of Kent's Com.; Page on Divorce; Bishop on Marriage and Divorce. The English decisions, and also the English statutes on Divorce, passed in 1857, are digested in the recent work of Pritchard, entitled "A Hand-book on the Law of Marriage and Divorce."

(b) Bingham v. Miller, 17 Ohio, 445. In the constitution of 1852, the legislature is expressly forbidden to grant divorces or exercise any judicial power, not expressly conferred upon them.

liable to doubt are, extreme cruelty, fraud in the contract, and neglect of duty. With respect to extreme cruelty, it is held that there must be personal violence to constitute it; mere austerity of temper, rudeness of language, or grossness of behavior, will not be sufficient. With respect to fraud, it is held that where a female, at the time of marriage, is pregnant by another man and conceals the fact, it is a case of fraud. With respect to neglect of duty, it must be so flagrant as to shock almost any conscience, or it will not be held sufficient. And generally, whatever be the cause, if it has been forgiven, and the parties have been reconciled and live together, a divorce will not be decreed. Nor will it in any case be decreed where the applicant is living in a state of adultery. (a) Up to 1833, the court had a discretion to grant a partial divorce, a mensa et thoro, or a total divorce, a vinculo matrimonii; but since that time, partial divorces have been done away; and the courts either dissolve the contract altogether, or not at all. But a wife

(a) Mattox v. Mattox, 2 Ohio, 234; Wright's Rep. 212, 284, 563, 630, 763. It is held in Massachusetts that personal violence is necessary to constitute extreme cruelty. Ford v. Ford, 104 Mass. 198; and see Hoshall v. Hoshall, 51 Md. 72. But it is generally held otherwise. The ruling of Lord Stowell in Evans v. Evans, 1 Hagg. Const. 35: "Proof must be given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait till the hurt is actually done," is frequently cited in later English cases as the guiding rule. And "bodily hurt" is not restricted to acts of personal violence, but includes also injury to health. The matter is fully considered in Kelly v. Kelly, L. R. 2 Prob. and Div. Ca. 31 and 59, where the earlier cases are cited, p. 61. See also English v. English, 27 N. J. Eq. 579; Ruckman r. Ruckman, 58 How. Pr. 278; Latham v. Latham, 30 Gratt. 307; Beyer v. Beyer, 50 Wis. 254. Recent English cases have held that it is cruelty for a husband to kno wingly infect his wife with venereal disease. Divorce was granted on that ground in Brown v. Brown, B. L. R. 1 Prob. Div. 46; and in the United States, Cook v. Cook, 32 N. J. Eq. 475 Falsely and maliciously, and without probable cause, charging the wife with infidelity, is such cruelty as constitutes ground for divorce. Kennedy v. Kennedy, 60 How. Pr. 151; Graft v. Gran, 76 Ind. 136; Smith v. Smith, 8 Or. 100. Husband may obtain divorce on the ground of the cruelty of his wife, both in England (White v. White, 1 Swab. & T. 591) and in the United States (Beebe v. Beebe, 10 Iowa, 133).

Fraudulent misrepresentations, as to wealth, social position, or character, do not constitute such fraud in the contract as to be ground for divorce. The fraud must be, not false representations anterior to the marriage, but fraud or duress in the actual contracting of the marriage, and the applicant for divorce must himself be free from guilt and laches. Leavitt v. Leavitt, 13 Mich. 452. The wife being pregnant by a third person at the time of the marriage, and artfully concealing the fact from her husband, constitutes such fraud. Reynolds v. Reynolds, 3 Allen, 605; Baker v. Baker, 13 Cal. 87. But if the husband had sexual intercourse with his wife before marriage, and the fact concealed was that her pregnancy was not by him but by another person, he cannot have divorce. Foss v. Foss, 12 Allen, 26; Crehore v. Crehore, 97 Mass. 330; Carris v. Carris, 25 N. J. Eq. 516; Hoffman v. Hoffman, 30 Pa. St. 417. Even if such other person were a negro, and, in consequence, a mulatto child should be born after the marriage. Scroggins v. Scroggins, 3 Dev. Law, 585. But if the child were born before the marriage, and the husband were deceived without his laches into the belief that it was his child, he would be entitled to divorce. Barden v. Barden, 3 Dev. Law, 548. But see Farr v. Farr, 2 McArthur, 35. Though a marriage procured by fraud or duress may, in Kentucky, be declared null ab initio, it is only voidable at the instance of the injured party, not void ipso facto ab initio. Tomppert's Exrs. v. Tomppert, 13 Bush, 326. Divorces are very rarely granted on the ground of gross neglect of duty. It seldom happens that there is a neglect of duty sufficient to warrant a divorce which does not amount on the one hand to wilful absence or desertion, or, on the other hand, to extreme cruelty. See Smith v. Smith, 22 Kan. 699.

may still file her petition for alimony, (a) without praying for a divorce. Doubts have sometimes been intimated whether divorce laws do not impair the obligation of contracts, within the meaning of the constitutional prohibition; but the better opinion is, that they do not; because they only liberate one party from a contract, when it has been broken by the other. (b) A much more questionable point is, whether divorces are not made too frequent in Ohio for the good of society. (c) It is indeed difficult to fix upon the exact medium in such cases. On the one hand, to hold the marriage contract dissoluble for slight causes, must operate as an encouragement to matrimonial strife and contention; and on the other, not to hold it dissoluble for any cause, would often occasion intolerable suffering. Perhaps the true medium would be somewhere between the severity of the English law and the liberality of our own. (d) With respect to foreign divorces, a great diversity of opinion exists in the different States; (e) but as our statute

(a) A gross sum may be allowed as alimony, payable in one sum or by instalments, in the discretion of the court; and the decree may be enforced by execution for each instalment. Piatt v. Piatt, 9 Ohio, 37; Sheafe v. Sheafe, 36 N. H. 155. In determining the amount, the court will take into consideration the circumstances of the parties, their social position, the wants of the person_requiring it, and the pecuniary resources of the party who is to pay it. Foote v. Foote, 22 Ill. 425. As to alimony pendente lite and allowance for counsel fees, see the very singular case of D'Arusmont r. D'Arusmont, 8 Western Law Jour. 548. A wife, who by gross abuse of her husband has been driven beyond the pale of his protection, and a separation de facto exists, she living and maintaining herself as a single woman, and having had specific property decreed her as alimony, may maintain an action at law in regard to such property, without the joinder of her husband, although no divorce has been decreed. Benadum v. Pratt, 1 Ohio State, 403. See on the subject of alimony, Bishop on Marriage and Divorce, ch. 27, and the act of April 15, 1857. After an ex parte divorce obtained by the husband in another State, the wife may petition for alimony here, and the court may take into consideration in awarding it property acquired since the date of the decree of divorce. Cox v. Cox, 20 Ohio St. 439. But see Cheever v. Wilson, 9 Wall. 108, 123, where the supreme court of the United States held that a decree in a divorce suit affecting real estate situated outside of the jurisdiction of the court, though it could not have extra-territorial operation, bound the parties personally, and could be enforced in the situs rei by proper proceedings conducted there for that purpose. In this case, however, the defendant had appeared, so that the court had jurisdiction of his person. Real estate of the husband may be decreed to the wife in fee, as alimony under the Ohio statute. Broadwell v. Broadwell, 21 Ohio St. 657.

(b) Cabell v. Cabell, 1 Met. (Ky.) 319; Adams v. Palmer, 51 Maine, 480. (e) See 1 Western Law Jour. 170.

(d) The English law of divorce has been greatly liberalized by recent acts of parliament. See acts 20 and 21 Victoria, cap. 85, 28th August, 1857, and the acts amending the same passed 2d August, 1858.

(e) The great number of States in the Union, all foreign to each other as to their jurisdiction and judgments, and the diversity in their laws as to divorce, make the question as to the validity of foreign divorces a matter of great importance. The constitution of the United States provides that full faith and credit shall be given in each State to the judicial proceedings in every other State. But a decision pronounced by a court not having jurisdiction of the subject-matter and the parties, is not a judgment in the purview of that provision. A court to which is produced the certified record of a court of another State, is not bound by a recital, or by a finding of jurisdiction in such record, but can inquire for itself into the fact of jurisdiction. Christmas v. Russell, 5 Wall. 290; Thonipson v. Whitman, 18 Wall. 457; Knowles v. Gas Light Co., 19 Wall. 58; Pennoyer v. Neff, 95 U. S. 714.

A decree of divorce is not the rescission of a contract, but the dissolution of a relation, the change of the status of the parties from married to single. The marriage is the fact which creates the relation. The offence is the fact which authorizes