The domicile of the husband is that of the wife. It is a general rule that the domicile of the wife is that of the husband, and so continues after widowhood until she acquires a new one.1 It has even been said that the husband may establish his domicile in any part of the world, and that it is the duty of the wife to follow him. This rule may have an important effect upon the wife's capacity to contract under the recent "Married Women's Acts." The general capacity of the wife depends upon the law of the domicile, and the husband may, by his sole act, according to this theory, enlarge or impair this capacity, or modify it from time to time.

The rule is subject to some qualifications. It does not fully apply to actions for divorce, in which a wife may obtain a separate domicile from that of the husband, So if a wife has been judicially separated from her husband, she may become a citizen of a different State, so as to enforce the decree in a United States court.8

The fact that the parties live apart under a separation deed does not give the wife the power to acquire a domicile of her own. It was considered doubtful whether even a judicial separation would lead to the inference that the wife might change her domicile by her own act.5 Under the English law, the wife must, as a rule, seek her remedy for matrimonial wrongs in the courts of the country where her husband is domiciled. Under recent decisions, the capacity of a married woman, being an infant, to deal with her property, depends upon the law of her domicile, instead of the place where the contract is made.7

Husband and wife as witnesses for or against each other. The rules of the common law are very rigorous in excluding the testimony of the parties to a marriage, either for or against each other, both in civil and criminal cases. This is both on the ground of their legal identity, and from rules of public policy. One is a technical ground, and the other matter of substance. Considered as a rule of public policy a wife should not be allowed in an action after the husband's death against his exec

1 Bloxam v. Favre, L. R. 9 P. D. 130; In re Cooke's Trusts, 56 L. J. Ch. 637.

2 Hairv. Hair, 10 Rich. (S. C.) Eq. 163. This rule does not apply to the case where a husband leaves his domicile and resides abroad in order to avoid his creditors. Pitt v. Pitt, 4 Macq. H. L. Cases, 627. 8 Barber v. Barber, 21 How. U. S.

582.

4 Warrender v. Warrender, 2 Cl. & F.

488; Dolphin v. Robins, 7 H. L. Cases, 390. This is an important case.

5 Remarks of LORD KINGSDOWN. 7 H. L. Cases, 420.

6 Firebrace v. Firebrace, L. R. 4 P. D. 63. See also Yelverton v. Yelverton, 1 Sw. & T. 574.

7 In re Cooke's Trusts, 56 L. J. Ch. 637, following Sottomayor v. De Barros, L. R. 3 P. D. 1.

utors to disclose confidential communications made during the marriage. Were the sole ground of exclusion "legal identity" there would be no reason for refusing to receive the wife's testimony in that case. The rule does not apply where the marriage turns out to be void, even though it may have been supposed by the parties to be valid. So a kept mistress may give evidence against her protector.*

There are certain special cases where the wife may give testimony, as where the husband is prosecuted criminally for acts of violence against her. This is from the necessity of the case, as otherwise the crime would, in general, go unpunished, and the wife would fail of protection. There are also cases where there is a secret fact in which her testimony is allowable, as, for example, where an action is brought by a husband against a carrier for loss of baggage, and the wife having packed the trunk, is alone acquainted with its contents.

Reference must also be made to declarations made by a wife out of court, as evidence against the husband. As she may be his agent for certain purposes, she may make declarations and admissions out of court in connection with the agency, which will be as binding on him as if made by any other agent, and which can be proved in evidence against him. Declarations made by her are in like manner in a proper case admissible in his favor. 6

5

So in actions for criminal conversation brought by the husband, letters written by her to him and others prior to the alleged illicit intercourse showing the state of her feelings towards him are admissible in his behalf if there is no reason to suspect collusion between them.7

Statutes are found both in England and in this country relaxing these rules. It is now the law in England that either husband or wife are competent and compellable to give evidence for or against each other in civil actions, except that neither of the parties shall be required to disclose communications made during the marriage by one to the other. This rule is not extended to criminal proceedings, nor, except with modifications, to a proceeding instituted in consequence of adultery.8

Under the existing New York law, a husband and wife are not

1 Doker v. Hasler, Ryan & M. 198. 2 Beveridge v. Minter, 1 C. & P. 364. 8 Wells v. Fletcher, 5 C. & P. 12. Batthews v. Galindo, 4 Bing. 610. 5 Clifford v. Burton, 1 Bing. 199; M'George v. Egan, 5 Bing. N. C. 196; Meredith v. Footner, 11 M. & W. 202.

Walton v. Green, 1 C. & P. 621.

7 Willis v. Bernard, 8 Bing. 376; Trelawney v. Coleman, 1 B. & Ald. 90.

8 16 & 17 Vict. c. 83, modified by 32 & 33 Id. c. 68.

in general excluded or excused from giving testimony for or against each other. There are the following exceptions: neither of them is competent to testify against the other in the trial of an action or the hearing upon the merits of a special proceeding founded upon an allegation of adultery, except to prove the marriage or disprove the allegations of adultery; neither party can be compelled, or without the consent of the other allowed, to disclose a confidential communication made during the marriage. In an action for criminal conversation, the wife is not a competent witness for her husband, but is for the defendant, except that she cannot, without the husband's consent, disclose confidential communications had with her husband.2

Similar provisions are now quite generally adopted in the several States, for the details of which the statutes of the States respectively should be consulted.

The wife's right of dower in the husband's real estate. This is only mentioned here for the sake of completeness, as the treatment of it more appropriately belongs to a work upon real estate. Dower at common law is a right given to a wife in case she survive her husband to have an estate for her life in one third of all the land in which he was seized of an estate of inheritance at any time during the marriage. During the marriage it is but an inchoate right; after the husband's death it is a right of action until her interest is assigned or set apart to her; whereupon it becomes an estate in the land. There are many distinctions on this subject, making it an important and intricate branch of real property law.

1 Code of Civ. Pro. § 828; Code of Crim. 2 Code of Civ. Pro. § 831. Pro. § 392.

CHAPTER VI.

PARENT AND CHILD.

CHILDREN from a legal point of view are of two classes, legitimate and illegitimate. Their respective rights will be considered under these two divisions. A third division will be devoted to adopted children.

DIVISION I.- Legitimate Children.

Legitimate children are those who are born in wedlock or within a competent time afterwards. The legal maxim is, "He is the father who is shown to be such by the marriage" (pater est quem nuptiæ demonstrant). It is not necessary to legitimacy that a child should be conceived in wedlock. It is enough that he is born after marriage, the fact of the marriage being an implied admission by the husband that he is the father.

The first section of this division treats of the duties of parents; the second of their power and authority; and the third of the relations of children towards parents.

SECTION I. The Duties of Parents towards Children.

I. Maintenance. -The duty here intended is not merely a moral, but a legal duty. There is a marked distinction between this case and that of husband and wife. The duty of the husband to maintain his wife springs out of contract, upon which, it is true, the law grafts certain implied obligations; the duty of the father is in no respect derived from contract. Whatever legal duty there may be, seems to be a duty towards society, a duty not to bring a child into the world so as to make him a burden upon his fellows. Accordingly, legislation is proper which compels a parent to sustain a child, makes him obnoxious to the poor laws in case he does not, and if he absconds, sequesters his property.

This is the basis of the English statute passed in the reign of Queen Elizabeth. This act provided a mode whereby the father and grandfather, the mother and grandmother, and the children of poor persons, if they were of sufficient pecuniary ability, should

1 43 Eliz. c. 2, § 7 (A. D. 1601).

maintain their poor relatives according to a rate fixed by the justices of the peace of the county where they lived, under the penalty of a specified forfeiture.

This is the basis of similar legislation in this country. The New York statute omits the mention of grandfather and grandmother, thus confining the statutory duty to parents and children. There are detailed measures for enforcing the obligation.

A husband is by general rules of law under no legal duty to maintain the children of his wife by a former husband.1 (a) If he takes them into his family as if they were his children, he cannot subsequently compel them to pay for past support.2 Nor can they under like circumstances claim payment for any services rendered in the family. As their relation depends on tacit consent, either party may break it off at any time; whereupon all further obligation is terminated. The same rule applies to a widow on remarriage as to the children of a former husband.* This rule is a defect in the law, which has been corrected in England by statute.5 Rules of this kind have a local effect, and do not follow the parties into other countries. Thus it is a rule in France that a father-in-law must make an allowance to a needy son-in-law for his support. This is a statute analogous to poorlaw legislation, and has no extra-territorial effect."

The settled English opinion is, that, independent of all statutes, the father cannot legally be compelled to sustain his children. The test of his liability would be found in the following facts: The father refuses to sustain his child; the latter applies to a tradesman to supply him with necessaries in the same general manner that a wife does when support is refused by a husband. The tradesman then sues the father. Can he recover? The answer would be in the negative. The son has no agency in such a case to bind the father.7

The American decisions are in a more confused condition, some holding with the English authorities and others maintaining that a child not supplied with necessaries may bind the father by con

1 Elliott v. Lewis, 3 Edw. Ch. 40; Hillman v. Stephens, 16 N. Y. 278; Cooper v. Martin, 4 East, 76.

2 Sharp v. Cropsey, 11 Barb. 224. Williams v. Hutchinson, 5 Barb. 122;

3 N. Y. 312.

4 Re Besondy, 32 Minn. 385.

6 4 & 5 Wm. IV. c. 76. The husband under that act must maintain the prior

children of his wife, whether legitimate or illegitimate, as a part of his family, until they attain the age of 16, or until the wife's death. § 57.

6 De Brimont v. Penniman, 10 Blatch. 436.

7 Shelton v. Springett, 11 C. B. 452; Mortimore v. Wright, 6 M. & W. 482.

(a) In the Matter of Ackerman, 116 N. Y. 654; Brown's Appeal, 112 Pa. St. 18.