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matrimonial domicile to a sort of divisum imperium. And this difficulty becomes aggravated where the wife has the fortune which supports the family, and the husband has not. The question is not new, whether reasonable exceptions to this rule may not exist; as, for instance, where the husband proposed to take the wife into an enemy's country while war was waging, or on a journey perilous to her life. Such exceptions may be justified, it is generally admitted, on the ground that the wife would be thereby exposed to bodily harm. But whether the apprehension be that of personal violence, or ill health from the fatigue of a journey or the change of climate, little favor seems to have been shown to the wife either at the English or Scotch law, unless the circumstances rendered a change of domicile on her part equivalent to a moral suicide.2 At the present day a rule less stringent would doubtless be applied. A husband would not be permitted to remove his wife to some remote and undesirable place for the sake of punishing or tormenting her, or so as to compel her to stay alone where he did not mean to reside himself; for this would not be fixing the matrimonial domicile with honest intent. Nay, more, there are several recent decisions in this country which point to an obligation on the husband's part to show reasonable cause why his wife should follow him when he changes his abode.3

This later uncertainty in the law is unfortunate. Where a pair disagree in the choice of a home, either the right of decision must belong to one of them, or the court should sit as umpire. No one has suggested that the wife should choose the domicile, nor can judicial interference be well called in, except to divorce the parties. Yet, without a home in common, of what avail is matrimony? We cannot but regret that any of our courts should seem to legalize domestic discord;

1 Boyce v. Boyce, 23 N. J. Eq. 337. 2 See 1 Fraser, Dom. Rel. 448. 3 Bishop v. Bishop, 30 Penn. St. 412; Gleason v. Gleason, 4 Wis. 64; Powell v. Powell, 29 Vt. 148. See Moffatt v. Moffatt, 5 Cal. 280; Cutler v. Cutler, 2 Brews. (Pa.) 511; 43 Ill. App. 370. A

husband dealing harshly with a wife upon an unfair allegation of her insanity may be compelled to support her at the house of her own sister with whom she takes refuge. Senft v. Carpenter (1894), R. I.

that there should be good American authority to sanction the wife's refusal to accompany her husband on any such trivial pretext as "the dislike to be near his relatives."1 Perhaps, however, the harsh remedy usually sought to be applied in modern cases - divorce for the wife's wilful desertion may tempt our tribunals to relax the old doctrine of conjugal obedience for her benefit. For, after all, the decision is in favor of prolonging the marriage relation.2


§ 39. Domicile relative to Alien and Citizen, As corollary of the general proposition already announced, it is held that an alien woman marrying with a citizen of the United States becomes, by virtue of such marriage, a citizen also, with the usual capacity as to purchase, descent, and inheritance; and that of aliens intermarried, if the husband becomes a naturalized citizen, the wife in like manner is naturalized, even though she has not yet migrated from her native country.

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§ 40. Change of Wife's Name by Marriage. Marriage at our law does not change the man's name, but it confers his surname upon the woman. Until a decree of divorce, giving a married woman leave to resume her maiden name, goes into full effect, or widowhood is succeeded by a new marriage and

1 Powell v. Powell, 29 Vt. 148.

2 The English rule as to the wife's duty of adherence still continues strict. A wife petitioned for divorce on the ground of her husband's desertion. The facts showed that shortly after her marriage she went with her husband to Jamaica, where he held an appointment from which he derived not more than £100 a year, and in consequence of his slender income she had to put up with some hardship. Her health suffered, and in less than a year, namely, in 1846, she returned to England. Her husband continued abroad, during the greater part of the time at Jamaica, where he succeeded in getting a more lucrative appointment. When she left him for England he acted kindly to her, promised to allow her £30 a year, but made no arrangement for a permanent separation. Their

correspondence continued until 1851, when the husband asked her to return, and provided funds for her passage, but she wrote that her health would not permit her to do so. Here all correspondence and intercourse ceased until 1856, when an allowance was again effected through the intervention of a relative; this the husband continued until 1860, and then stopped it. He appears to have led a loose life after the wife's refusal to return. The court held that these circumstances did not constitute desertion on the husband's part, nor entitle her to divorce. Keech v. Keech, L. R. 1 P. & D. 641 (1868). Adultery being proved, however, divorce was granted on that ground.

3 Luhrs v. Eimer, 80 N. Y. 171; Kelly ". Owen, 7 Wall. 496.

Kelly v. Owen, 7 Wall. 496; Headman v. Rose, 63 Ga. 458.

another husband, she goes by her former husband's surname. This is English and American usage. And with this actual marriage name, it would appear that a wife can only obtain another name by reputation. But in consideration of the rule that a person has the right to be known by any name he or she chooses, proceedings under the assumed name of a married woman have been upheld after judgment; 2 and obligations incurred by or with third parties in her maiden name are held mutually binding.3

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§ 41. Right of one Spouse to the other's Society; Suit for Enticement; Alienation of Affections, &c. -Each spouse is entitled to the society and companionship of the other. Inasmuch as the husband is thus entitled, he may recover his wife from any person who would withhold or withdraw her from him. This is a well-understood principle the world over.1 And the common law gives him the right to sue for damages all persons who seek to entice her away, or induce her to live apart from him.5 But in such cases malice and improper motive are always to be considered; and parents and near relatives stand on a different footing from strangers. So is the previous conduct of the husband towards his wife a material element to be considered; since this, and not the interference of others, may have occasioned the separation. It is one thing to actively promote domestic discord, but quite another to harbor, from motives of kindness and humanity, one who seeks shelter from the oppression of her own lawful protector. A just necessity for the intervention, honest intent, honest advice, with the intent, not of profiting personally by the separation or divorcement of the pair, but so as to restore harmony or do justice, should be a proper defence against the husband's suit.

Yet such conduct, whatever the motives, is, on the part of male strangers, exceedingly perilous, generally open to miscon

1 Fendall v. Goldsmied, 2 P. D. 263.

2 Clark v. Clark, 19 Kans. 522.

Thompson, Wright, 636; Rabe V.
Hanna, 5 Ham. 530; 47 Barb. 120;

2 Lane v. Duchac, 73 Wis. 646; 96 Fratini v. Caslini, 66 Vt. 273; Rinehart Cal. 609.

4 1 Fraser, Dom. Rel. 240, 241. 51 Chitty, Pleading, 91; Hutcheson v. Peck, 5 Johns. 196; Friend v.

v. Bills, 82 Mo. 534; Bennett v. Smith, 21 Barb. 439; 30 Barb. 663; Modisett v. McPike, 74 Mo. 636.

6 Tasker v. Stanley, 153 Mass. 148.

struction, and never to be encouraged. They should leave the parties to their lawful remedies against one another. With parents it is different. There are several cases in the American reports where a father is not only held to be absolved from liability for sheltering his daughter, who has fled from a drunken and profligate husband, but even stimulated to do so. "A father's house," says Chancellor Kent, "is always open to his children; and whether they be married or unmarried, it is still to them a refuge from evil and a consolation in distress. Natural affection establishes and consecrates this asylum." 1 But this does not justify even a parent in hostile interference against the husband: for the latter's rights are still superior; and the father must give up his daughter and the marriage. offspring, whenever she wishes to return, unless the proper tribunal has decreed otherwise; though he might, we suppose, by fair arguments, urged to promote her true good, seek to dissuade her from returning. The parent ought to be free to give good advice honestly, at all events, to a married daughter who seeks it in distress. The legal doctrine seems to be this, that honest motives may shield a parent from the consequences of indiscretion, while adding nothing to the right of actual control, — the intent with which the parent acted being the material point, rather than the justice of the interference; that a husband forfeits his right to sue others for enticement, where his own misconduct justified and actually caused the separation; but that otherwise his remedy is complete against all persons whomsoever, who have lent their countenance to any scheme for breaking up his household.2

1 Hutcheson v. Peck, 5 Johns. 196. See also Friend v. Thompson, Wright, 636; Bennett v. Smith, 21 Barb. 439; 20 N. Y. Supr. 204; Payne v. Williams, 4 Baxt. 583; White v. Ross, 47 Mich. 172; 49 Mich. 529; 89 Tenn. 478.

2 A curious case of this sort came before the Supreme Court of North Carolina in 1849. The defendant had enticed away the wife of the plaintiff. The two afterwards entered into an agreement that the defendant should keep the plaintiff's wife and child at

his own home, and should raise, educate, and provide for the child by appropriating the portion of property formerly intended for the mother's' provision; that he should not be liable for having enticed the wife away; and that the plaintiff might visit his wife and child not exceeding four or five days at a time. The wife was not made a party to the contract, though it appears to have been made with her approval. The plaintiff afterwards rescinded the agreement, demanded his wife, and,

Differences of sex may account for a denial of the enticement suit to the wife, though her right to her husband's society is unquestionable. Woman claims protection where man acts for himself. There is some contradiction of the cases on this point.1 With the increase of divorce facilities the general principle of suing for enticement may part with some of its force even for the husband. The right of action for criminal intercourse with one's wife rests on stronger ground than mere enticement.3

upon refusal of the defendant to give be shown to have enticed knowingly her up, sued him in damages. The court sustained him; pronouncing the contract to be "neither in form or substance a contract for a separation, but simply a license to harbor the wife and child, securing the defendant against any legal responsibility for so doing until withdrawn." And it was further intimated that such a contract was absolutely void as against public policy. Barbee v. Armstead, 10 Ired. 530. See also 1 Burge, Col. & For. Laws, 238, for a like doctrine at the civil law.

The father's right to protect his own daughter against a cruel husband is strongly asserted in some of the latest cases. 88 Ky. 403.

1 Van Arnam v. Ayers, 67 Barb. 544; Logan v. Logan, 77 Ind. 558. But see Breman v. Paasch, 7 Abb. (N. Y.) N. Cas. 249; Jaynes v. Jaynes, 39 Hun, 40; 26 Fed. R. 13.

Great interest is taken by women in this subject, according to the latest American decisions (1884-1895). Partly upon consideration of the rules of common law, but still more because of the development of equal companionship in marriage under the policy of modern legislation, the wife has been permitted to sue other persons for wrongfully enticing away or seducing her husband, by the rule of various States in recent instances. Haynes v. Nowlin, 129 Ind. 581; 133 Ind. 386; Foot v. Card, 58 Conn. 1; Seaver v. Adams, (1890) N. H; Warren v. Warren, 89 Mich. 123, with citations; Price v. Price, (1894), Iowa; Bennett v. Bennett, 116 N. Y. 584. But the rival woman should

and directly, so as actively to interfere with a wife's privileges. Waldron v. Waldron, 45 Fed. Rep. 315. Exemplary damages have been ruled where the injury was wanton and malicious. 45 Fed. Rep. 315. Other States, however, oppose this whole doctrine, which at the old common law was at least undeveloped. Doe v. Roe, 82 Me. 503; Duffies v. Duffies, 76 Wis. 374; Hester v. Hester, 88 Tenn. 270. In Kroessin v. Keller, Minn. (1895), suit for crim. con. is denied.

2 A wife having just cause for separation or divorce may be afforded shelter by even a stranger, acting in good faith. Modisett v. McPike, 74 Mo. 636. And see Tasker v. Stanley, 153 Mass. 148.

8 Michael v. Dunkle, 84 Ind. 544; 2 Ld. Raym. 809; 7 Mod. 78; 2 Chitty, Pleading, 855. The husband may sue, thus, for the loss of his wife's society, if he has not renounced his marital rights, although such criminal converse was without her consent, and caused no actual loss of service. Bigaouette v. Paulet, 134 Mass. 123; Cross v. Grant, 62 N. H. 675. Cf. Neilson v. Brown, 13 R. I. 651. That the plaintiff and his wife were divorced before the suit, is no defence; nor can the wife give such consent to the seduction as will bar the husband's right of action. Wales . Miner, 89 Ind. 118; 101 Ind. 160. A husband may attack the adulterer whom he finds engaged in the criminal act, and the latter has no right to defend himself with a deadly weapon. Drysdale v. State, 83 Ga. 744; § 45, note.

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