Page:The New International Encyclopædia 1st ed. v. 10.djvu/397

* HUSBAND AND WITE. 343 HUSBAND AND WIFE. in modem law. The husband can enforce the wife's antenuptial contracts, and can recover for torts committed toward her either before or after the marriage by joining her with himself as. plain- tiff in an action. For torts resulting in loss of her services to liim or requiring him to provide medi- cal attendance or other necessaries he can recover in his own name and right. He may also recover damages from a third person for unlawful inter- course with his wife, and either husband or wife might recover damages from a third person for alienating the affections of the other. As regards crimes committed by a wife, she is in general lia- ble to be punished for them in the same way as if she were unmarried. But there is a peculiarity as regards crimes committed by the husband and wife joiiitly in the husband's presence. If the crime be treason or murder, both are punished precisely as if they were unmarried. But in all the lesser crimes the theory, as well as the prac- tice, is that if tlie wife was a party to the crime, and committed it in her husband's presence, she is presumed by the law to have so acted under the compulsion or coercion of her hu.sband. and is acquitted as a matter of course. The presump- tion, however, is a presumption of fact only, and may be rebutted by showing that in fact the wife was not coerced by the husband : but in the ab- sence of any direct evidence one way or the other on the subject of coercion it is presumed that the wife acted under this marital coercion, and so she escapes punishment. Another curious anom- aly arising from the common-law ma.xim that husband and wife are one person is that the wife cannot he convicted of stealing her husband's goods. If she absconds with his property, how- ever valuable, she cannot be punished. But this rule is qualified by the circumstance that if she commits adultery, and afterwards absconds with the adulterer, both taking away the husband's goods, the adulterer may be convicted of the lar- ceny, though it is doubtful if she is in that case liable to any punishment. Where the third party does not have in view any adultery with the wife, but joins her in taking aw.ay the husband's goods, neither he nor the wife can he punished criminally. At the common law also husbands and wives may be witnesses for or against other parties in all civil cases, i.e. actions and suits relating to debts, contracts, and wrongs which are not crimes, and in all inquiries of a civil nature. But neither can testify for the other in an action to which the other is a party; but either can be compelled by the opposite party to be a witness. Tn all cases neither husband nor wife c.in be compelled to dis- close any confidential communication made to him or her by the other spouse during the mar- riage. As regards all criminal proceedings in- stituted against either husband or wife, the other spouse is neither competent nor ran tie compelled to be a witness: but where the husband and wife are not the accused, but are the prosecuting par- ties, then, inasmuch as the State is presumed to be the prosecutor, and the husband and wife are not parties, they may be both witnesses, subject to the qualification as to not being bound to dis- close confidential communications made by and to each other during marriairc. There is an excep- tion also to the rule that neither can be a vitness against the other in criminal proceedinss — viz. where the wife charges her husband with an as- sault or other crime of greater degree upon her person, she is in that case only a competent wit- ness against him, for otherwise the crime might go unpunished. Jloreover, in all proceedings in- stituted in consequence of adultery of the hus- band or wife, neither of the married parties is competent or can be comjielled to be a witness. (2) As TO THE Property of the Married Per- sons. As regards the husband, he not only re- mains sole owner of his property, and, subject to the wife's right of dower, can do what he likes with it, but he becomes absolute owner of her personal property of even' kind which is capable of being reduced to possession. As will lie here- after explained, he also becomes a qualified owner of her choses in action (q.v. ) and her chattels real. The legal title of the wife's real estate remains in the wife, but she cannot con ve3' it without the hus- band joining in the conveyance by fine and re- coverj-, and the rents, issues, and profits of her real estate belong absolutely to her hus- band. Owing to the common-law rule that the husband is entitled to the services of the wife, he becomes entitled to her earnings acquired by ren- dering service to others. It will thus be seen that during the coverture the wife cannot, at common law. acquire any personal property, and her title to real property acquired before or after her marriage is subject to the rights of the hus- band, as stated. But as regards the wife the case is different. The old rule as to the wife's personal property becoming the husband's abso- lutely after marriage suffered qualification when such property consisted not of money or chattels, but of what are called chattels real, such as leases and mortgages. (See Chattels.) In such a case they become so far the property of the hu.sband that he can sell them during his life, but he cannot bequeath them by will ; and on his death they remain hers, while on her death they become his. Again, where the wife's per- sonal estate before marriage consists of mere rights of action, or debts due to lier, they become so far his that he can at any time sue for thera, and so reduce them into possession, and make them his own absolutely; but he ca-nnot bequeath them by will, and if he does not sue for them in his' lifetime they sun-ive to the wife after his death. .s regards the wife's real estate — i.e. her lands and houses held in freehold — the husband does not acquire any legal interest in the title by the marriage, but, as has been pointed out. he acquires the right to the rents, issues, and profits, and consequently the right to dispose of the real estate during the coverture; and. if the wife bear him a living child, upon her death he becomes entitled to a life interest in her real estate, known as tenancy by the curtesy (q.v.). Upon marriage the wife also acquires an inchoate right to dower in real estate of which the husband may be seized or which he may thereafter acquire — that is. a life estate or interest in onethinl of all such real estate. Tliis right becomes complete (inly upon death of the hu.sband before the wife, but it cannot be impaired by any act of the husband during tha coverture or by the wife her- self e.vcept by joining with her husband in .1 conveyance by fine and recovery. (See Dower.) All real estate conveyed to husband and wife together, unless otherwi.se defined by the in- stniment of conveyance, is deemed to be an es- tate known as an estate by the entirety. Its pe- culiarity is that while the husband is entitled to the rents, issue, and profit* .hiring coverture.