valid everywhere. Nevertheless, the courts have great difficulty in
applying the principle. Suppose that the resident of a state, for the
purpose of evading its marriage laws, should go into another state and
have the marriage solemnized, and then return, is the marriage valid
in that state? No, but to lessen the rigor of the rule, the courts
hold that both parties must have intended to evade the law, if,
therefore, one of them was innocent the marriage was valid.
After marriage the husband's domicile becomes that of his wife, and
her refusal to follow him without good cause, would be in law a
desertion. It is said that a promise before marriage not to take her
away from her mother and friends will not justify her in refusing to
go with him. If, however, she had immediately after marriage,
determined to separate from him and to take legal steps to that end,
she could legally remain.
A married woman by the common law is answerable personally for her
crimes as though she were unmarried, unless they were committed in her
husband's presence. When together the law presumes she acted from his
coercion, he therefore must be the sufferer, while she escapes. This
rule though does not apply to the gravest crimes; for these both are
liable. Like so many other legal rules the difficulty is in applying
it. How near to the husband must she be when committing a wrong to
render him liable and escape herself. In one of the cases a married
woman was properly indicted for unlawfully selling intoxicating
liquors. At the time of selling them she was alone in the room, though
she had sold them by her husband's order.
As the law regards husband and wife as one person, many peculiar
things flow from this relation. Thus one cannot steal from the other;
but either is criminally liable for an assault committed on the other.
By statute in some states the right of either party to sue the other
for wrongs has been greatly extended; nor is the husband liable for
wrongs committed by his wife unless he participated in them. For
example, in some states he is not liable for slanderous words spoken
by her in his absence; in other states his liability continues. On the
other hand, a wife who can manage and control her separate estate may
in turn be liable for the wrongs of her husband while he is acting
with authority as her agent.
A husband has a right of action for damages against any person who
alienates his wife's affections. Nor can he be defeated by showing
that he and his wife did not live happily together. Such facts though
may be used to prove that her society was worth less than it would
have been had they lived happily, in fact, by money valuation was not
worth three cents. A husband forfeits his right to sue others for
entertainment when his own misconduct justified and actually caused
the separation, otherwise his remedy is complete against all persons
whatsoever who have lent their countenance to any agreement for
breaking up his household. On the other hand, this is a one-sided rule
in some states; in others a wife has the same right to sue for the
alienation of her husband's affections as he has for the alienation of
hers.
By statute great changes have been made in the way of permitting
married women to retain their property and manage it, and to do
business. Formerly, all the personal property of a married woman went
immediately by law to her husband, and he became responsible for her
debts. She still retained her real estate and the management of it.
Now, very generally, she also retains her personal property, also the
income, very much as if she were unmarried. She often appoints him as
her agent to manage her property, and when thus acting he is
responsible to others and to her like any other agent. He may contract
for erecting any building or improvement on her land, but should he
contract in his own name for such improvement she cannot be held
therefor, nor can any one who has done work or furnished materials put
a lien thereon for them. It may be added that his right to act as her
agent is never implied solely from the marital relation.
A wife may act in a representative capacity as agent for her husband,
or for other persons, and may execute a power conferred on her by deed
or will. She may also be appointed to act as executor, administrator
or guardian, though under the common law theory her husband's consent
was needful to her acceptance of any of these undertakings.
The common law relations of husband and wife have been greatly changed
by statute since about 1844. "It is now," says Peck, "the usual rule
of law throughout the United States, established in each state by its
own statutes that the wife retains title to the property owned by her
before marriage or acquired by her during the marriage, and the right
to manage, use or sell it, without the concurrence of her husband.
The right to contract, and to sue and be sued, naturally follows from
her ownership and control of her property; in most of the states these
rights are expressly conferred by statute; and in some they have been
held to result by necessary implication."
The husband is generally relieved from liability for her debts or for
her torts, except for such debts as are for her support or that of the
family, or are within her express or implied agency to act for him.
The common law estate of dower and curtesy are retained in some of the
states, in the larger number they are materially modified by statute,
or wholly abolished and replaced by a right of succession to each
other's property as defined by statute.
The distinctive duties resting on a husband are to provide a home, to
support his wife and children, to protect her and them from injury or
insult. Thus a husband has the same right to protect his wife, to
assert and maintain her rights, even to kill a person, if necessary in
her defense, that he would have in his own behalf.
The duty of a husband to provide a home implies his right to select
and fix the marital abode. The wife must live with him, and a refusal
on her part to live in the home provided by him would constitute her a
deserter. But he must select a home in good faith and in reasonable
accordance with his means and their accustomed mode of life.
It is his duty to maintain order and law in his household. He is
therefore liable to prosecution should his wife carry on the illegal
sale of liquor, or in other ways defy the law.
A husband cannot chastise his wife, but he may use force to restrain
her from committing a violent criminal wrong. Says a competent author:
"That depends rather on the right of every one to use reasonable
efforts to prevent violence and crime than on any peculiar power of
the husband over the wife, and it would also justify like restraint of
the husband by the wife."
It is the duty of the wife to assist in the maintenance of the family
by such reasonable labor as the necessities of the family and their
circumstances in life and financial position require; while the
husband has no right to require her to do more than to care for the
house and the family in the customary and proper manner. He cannot
compel her to engage in business, to work for wages, nor to work for
him in his business. The services of any kind which either may render
to the other, or for the family, are rendered in consideration of the
marriage relation, and of the mutual benefit received therefrom and
neither has any right of action against the other for them.
It should be noted that the legislative revolution for the benefit of
married women has chiefly affected the property relations of husband
and wife, while their personal rights remain quite as before. Probably
no single rule of the common law was so bitterly resented and so
difficult to defend, as the vesting in the husband of the sole
guardianship of their children. By statute in many states both parents
are made guardian of them, and if they separate, the welfare of the
children is regarded as the decisive question in fixing their
guardianship, rather than the superior right of either parent.
A husband and wife by the modern law may agree to live separately. The
arrangement in some states is effected through a trustee, in others
this may be done by the parties themselves. By this the parties may
agree on the disposition and division of their property when this can
be done freely and intelligently. A separation agreement made through
fear of her husband cannot be sustained.
A wife who voluntarily enters into an agreement of separation covering
all property rights cannot, after her husband's death, have it set
aside and then claim her rights in his estate, except in some states
where community rights exist. On the other hand, her right to share in
her husband's estate is not lost though she lives apart from him by
agreement, unless this shows a clear intention to relinquish all
claims to his estate.
The husband must support his wife. This is the law everywhere. While
they live together the law presumes that he has given her authority to
purchase necessaries on his credit, and therefore a tradesman can
recover who shows that they were thus living and that the things
furnished befitted their condition in life. When she is living apart
from her husband the presumption is the other way, and a tradesman
cannot recover without proof of the fact of her husband's authority to
let her have the goods. But when she is living apart from him for good
cause, and would starve if the things needful to sustain life did not
come from some source, she has an absolute right to pledge her
husband's credit for them.
What are the things for which she may pledge her husband's credit?
Those required to sustain life and preserve decency, besides other
things to maintain her in her social condition. Wearing apparel,
furniture, jewelry, even legal expenses incurred in regaining her
conjugal rights have been included.
Besides agreements to live separately, the law for several causes
permits absolute separation. These are prescribed by statute, and
vary greatly in the different states. Adultery is a cause recognized
in all of them, for which an absolute divorce can be granted. Cruelty
is another cause, almost as general, though more difficult to define.
Actual violence is not necessary to constitute cruelty, threats of
violence with an intention to do bodily harm will suffice. Again, the
cruelty must be unmerited. If she has justly provoked the indignation
of her husband, then his cruelty presents a different aspect.
Nevertheless, if his cruelty bears no relation to her wrongful
beginnings, she still has good ground for separation.
Desertion is a general ground of divorce, the law in every state
prescribing a period of time, quite often three years. The period must
be continuous. An offer to return made by the deserted spouse in good
faith at any time before the separation has run for the statutory
period will bar a divorce, but not if the offer is made afterward.
Again, a husband who drives his wife away from him by his misconduct
deserts her as clearly as if he had left her. To cease living together
for the time fixed by statute is not desertion unless this was done
intentionally. For example, separation on account of business,
sickness, etc., is not desertion. Not only must there be an intention
to leave the other party, this must be without consent.
Another cause for divorce, quite generally recognized, is habitual
drunkenness. This must be of a gross and confirmed nature. While other
causes exist the most general have now been mentioned. In some states
there is a more general ground, any reason rendering married life a
failure. Of course, much depends on the discretion, mental and moral
make-up of a judge in applying the facts to a cause for separation
that is so general. An agreement in advance to make a cause of divorce
is everywhere condemned by the law.
Divorces are of two kinds: from the bond of marriage, often called
absolute divorces, which put an end to the marriage relation and
render the parties single; and divorces from bed and board, limited
divorces, more accurately called judicial separations, in which the
marriage relation is not dissolved, but the injured party is given the
right to live separate from the other. In more than half of the
American states no distinction is made between kind of divorce, all
divorces are absolute, from the bond of marriage.
The legal effect of divorces is still a grave matter. When a divorce
has been legally granted by a state, the courts of every other state
for obvious reasons recognize and try to uphold the decree or
judgment, though not all of them, and consequently strange results
follow. Thus a person who was married and living in New York leaves
his wife for good reason and goes to Connecticut. After acquiring a
legal residence there and proper standing in a court, he applies for a
divorce, the proceedings are regular in every respect and a divorce is
granted. He marries again and takes his wife to New York for a visit.
There he is sued by the first wife for support, moreover, by the laws
of New York he is an adulterer. In New York he is still married to the
first wife, in Connecticut to the second. If children are born of the
second marriage they are legitimate as long as they live in
Connecticut, illegitimate should they go to New York. One of the
latest legal writers on this difficult subject says: "Foreign divorce
judgments granted in states where the plaintiff had obtained an
actual, bona fide residence, will doubtless continue to be recognized
by the great majority of our states, but the states of New York,
California, Maryland, Massachusetts, Vermont, South Carolina,
Pennsylvania, and possibly some other states, which have adopted the
extreme New York doctrine, are permitted by the rule established in
the Haddock case--a decision by the Supreme Court of the United
States--to continue to refuse recognition of divorce judgments in
other states."
=Innkeeper.=--An innkeeper's house is a public place to which
travelers may resort. He cannot therefore prohibit persons who come
under that character in a proper manner and at suitable times from
entering, so long as he can accommodate them. He is not obliged to
receive one who cannot pay for his entertainment. Indeed, he must
exclude some persons who apply, notably thieves. He can refuse to
admit all whom he has reason to believe will disturb the peace and
safety of his guests; and can afterward exclude all who, though
admitted, prove to be noisy and disturbers of the comfort and safety
of others. And if having a stable he is under the same obligation to
receive and care for horses as he is to receive the person to whom
they belong. Again, he is not required to provide a guest with the
precise room he may select, but only reasonable and proper
accommodations. If he refuses to do so he is liable in law to the
applicant.
In caring for the baggage of a guest, the law is not as well settled
as it might be. A competent writer has said: "They are insurers of the
property of their guests committed to their care, and are liable for
its loss, unless caused by the act of God, a public enemy, or the
neglect or fault of the owner or his servants." This strictness of
liability, it is said is necessary to protect travelers against any
collusion between the innkeeper and his servants, and to compel him to
take care that no improper persons are admitted into his house. His
charge for the entertainment of his guests is sufficient to cover this
risk; he also has a lien on their property entrusted to his care to
indemnify him against loss.
By statute in many states innkeepers are exempt from loss by fires
which are in no way caused by their own negligence or that of their
servants. If a horse dies while in the innkeeper's charge, he is
liable unless he can show facts that excuse him.
If the goods of a guest are stolen by the innkeeper's servants or
domestics, by another guest, or by someone outside the inn, the
innkeeper must make restitution, for it is his duty to provide honest
servants, and to exercise an exact vigilance over all persons coming
into his house as guests or otherwise. His responsibility extends to
all his servants and domestics, and he is bound in every event to pay
for them if stolen, unless they were stolen by a servant or companion
of the guest. Illness or absence of the innkeeper does not excuse him.
An innkeeper is not liable for the loss of a guest's property when
this loss is due to the fault or negligence of the guest himself. Thus
an unnecessary display of money or valuables, or leaving them where
they would tempt thieves, may be negligence. But failure to lock or
bolt his door is not necessarily negligence on the part of a guest. It
is only evidence of negligence. Nor is an innkeeper exonerated when a
theft is committed by a fellow guest with whom the owner of the
property stolen had consented to occupy the same room.
An innkeeper may make needful and reasonable regulations that are to
be observed by his guests to secure the safety of his property. When
they are made and brought to the knowledge of a guest he is bound by
them. By contract, custom and statute the responsibility of an
innkeeper may be changed. In many states by statute an innkeeper
avoids liability for the valuables of his guest unless they are
deposited with him. These statutes are construed strictly in favor of
the guest. Nor can an innkeeper even by these exempt himself from
everything, for if a guest were required to deposit all he had to
secure such protection, he would be in a strange fix. Said a Georgia
court: "Is the guest to deposit his valise there, and go and send for
it to get out a clean shirt?"
If a guest goes away, leaving his valise or other things with an
innkeeper, he is not required after a reasonable time to observe such
diligence in keeping them as he receives nothing in the way of
compensation for so doing.
Keepers of lodging and boarding houses are not innkeepers, nor subject
to their liabilities. The proprietor of such a house does not hold
himself out to the world as prepared to supply accommodations for all
who may apply, nor is he required to receive any persons unless he
chooses to do so; an innkeeper's freedom is restricted in this
respect. A house may have a double character of boarding house and
inn. With transient persons who, without a definite contract, remain
from day to day it is an inn; with those under definite contract it is
a boarding house.
=Land License.=--A license is an authority to do something on
another's land without acquiring ownership therein, and may be given
orally, or it may be simply a permission to use or occupy. A license
may be executory, relating to a future act, or it may relate to an act
already done or executed. An executory license may be revoked at any
time. Thus A laid a water pipe by permission across B's land who
afterward rendered the pipe useless by cutting it. A had no redress,
for B was acting within his rights. A ought to have obtained written
authority for such action. He could, however, remove the pipe or any
other improvement he had made on the strength of the license granted
to him.
A license may be to do many things on another's land. Thus one may
have a license to flood land, erect buildings, pass overland, maintain
a ditch, cut timber, use land for railroad purposes. A common form of
license is a ticket of admission to enter another's land to witness a
spectacle or similar purpose.
No formality is needed to create a license. It may be in writing or be
oral, or implied from the relations or conduct of the parties, as
where a land owner assents to the doing of certain acts on his land. A
person by opening a place of business licenses the public to enter
therein for the purpose of transacting business. And a license to do a
particular act necessarily involves any act essential thereto.
A license is usually revocable at the pleasure of the licensor, even
though it be in writing and under seal, or a consideration has been
given. If the licensee has expended money and made improvements on the
faith of the license, can it be revoked? On this question the courts
divide. The more general opinion seems to be that a license coupled
with a grant or interest cannot be revoked. Or, if a license has in
effect been so used as to become an easement it remains a burden on
the land though sold to a purchaser, unless he had no knowledge of
it. A license cannot be assigned by the licensee to another.
Again it is said that the revocation only affects the future exercise
of the privilege, and does not prevent the licensee from removing
structures or other movable articles placed by him thereon relying on
the license, provided he does this within a reasonable time after the
revocation. Even should the owner of land sell, the sale would not
operate as a revocation to one to remove trees that he had already cut
under a contract of sale and removal.
If a person grants a license to another to come on his land, he owes
no duty to him except the negative one of not wantonly injuring or
exposing him to danger. Merchants invite the public into their stores
to buy wares, but those who accompany them without any intention of
purchasing are not invitees, they are mere licensees. The duty of the
storekeeper to one who enters his premises by mere license is not to
keep the premises in a non-hazardous state, but only to abstain from
acts willfully injurious to him.
=Lease.=--A lease is for the use of land, usually for a few years or
shorter period. The lessor is more generally known as the landlord,
and the lessee as the tenant. The lease may be oral, though the better
way is to put the agreement in writing. If it be for a house or other
building the lessee should insist on this, otherwise he would fare
much worse should the building be destroyed by fire. Doubtless many do
not know that, unless the lessee makes a specific agreement relieving
himself, he is liable for the rent of a building, just the same if it
is burned down as if he were still the occupier. This is the common
law, which has been changed in some states by statute.
If the lease is for more than a year, or other short period, the
Statute of Frauds, so called, requires that it must be in writing. If
the time be less, a verbal lease may be made, even though the lessee
does not take immediate possession of the premises. If on the other
hand, it exceeds the statutory period, it is not absolutely void, but
continues during the joint wills of both parties, and may therefore
cease at the will of either party. If the landlord wishes to terminate
it, he must give the tenant notice to quit; should he disregard the
law and take immediate possession he would be a trespasser.
When the terms of a lease are in doubt, they are construed in favor of
the tenant. A lease to a specified day continues during the whole of
it, though custom or statute may prescribe a different rule. A term
may also continue during the option of either of the parties to be
ended on notice by the party exercising the option.
The most usual agreements or covenants in a lease are on the part of
the lessor for quiet enjoyment, which secures the tenant against any
hindrance or disturbance of his possession and enjoyment of the
premises from persons deriving their title from the landlord, or from
any one else who claims to be the owner. Also against all
encumbrances, in other words, that no one has any easements or other
rights in the premises. The landlord also usually agrees to repair,
and often to renew the lease, and the lessee to pay rent, to insure
and not to assign or underlet, without the landlord's consent. The
parties may of course agree to do any other lawful thing, for example,
sometimes the tenant agrees to make repairs, to reside in the
premises, not to engage in some kinds of business, to cultivate the
land, if the lease be of a farm, in a specified way. Again though an
oral lease for a term of years at a stated annual rent may not fulfill
the requirement of the Statute of Frauds, the parties may conform to
it and thus create a tenancy in fact from which the law will imply a
leasing from year to year. If therefore the tenant with the
acquiescence of the landlord continues in possession for several
months after the expiration of the original term, a tenancy for
another year will be created with a corresponding liability on the
part of the tenant for a full year's rent. And the measure and extent
of the tenant's liability would be the same, whether his continued
occupancy related to the original lease, or to a subsequent one just
like it, made as the first was soon to expire.