Wiki: parish law on husbands and wives

: From The present practice of a justice of the peace; and a complete library of parish law, vol 1, pp258-268, 1790.

	Baron and feme, or husband and Wife.
Husband and wife adjuded one person	BARON and feme, are husband and wife in our law, and they are adjuded but one person. Bract. lib. 5. 416. E. 12. W. Maddox v. Wynne. Error. An husband and wife were sued, and afterwards in the pleadings it was said, the parties aforesaid came by their attornies aforesaid; this was held bad on a writ of error, because they are only one person in law. 3 Salk. 63.
Directions for the publication of bans.	By the 26 G. 2. c. 33. s. 1. all bans of matrimony shall be published in an audible manner in the parish church, or in some public chapel, in which bans of matrimony have been usually published, belonging to such parish or chapelry, wherein the persons to be married dwell, upon three Sundays preceding the solemnization of the marriage, during the time of morning service (or of evening service, if there be no morning service in such church or chapel upon any of those Sundays) immediately after the second lesson; and, when the persons to be married dwell in divers parishes or chapelries, the bans shall be published in the church or chapel where each of them dwell; and where both of either of the persons to be married dwell in any extra-parochial place, having no church or chapel wherein bans have been usually published, then the bans shall be published in the parish church or chapel, belonging to some parish or chapelry adjoining to such extra-parochial place; and where bans shall be published in any church or chapel, belonging to any parish adjoining to such extra-parochial place, the parson, vicar, minister, or curate, publication thereof, in such manner as if either of the persons to be married dwelt in such adjoining parish; and all other rules prescribed by the rubric, concerning the publication of bans, and the solemnization of matrimony, not hereby altered, shall be observed: and in all cases where bans shall have been published, the marriage shall be solemnized in one of the parish churches or chapels where such bans have been published.
Punishment for marrying contrary to the stat. of 26 G. 2.	And by the same statute, s. 8, 9. if any person shall solemnize matrimony, in any other place than a church or public chapel (unless by special licence from the archbishop of Canterbury) or without publication of bans, or licence, in a church or chapel, he shall (on presecution in three years) be adjudged guilty of felony, and transported for 14 years, and the marriage shall be void. But this shall not exten to Scotland, nor to marriages of Quakers or Jews. Id. s. 17, 18.
Punishment for making a false register, &c.	If any person shall knowingly and wilfully insert, or cause to be inserted in the register-book, and false entry of any matter or thing relating to any marriage; or falsly make, alter, forge, or counterfeit any such entry in the register, or any marriage licence, or cause the same to be done, or assent thereunto, or utter as true any such falsified register, or copy thereof, or any such forged licence, he shall be guilty of felony, without benefit of clergy. Id. s. 16.
Minister not punishable for marrying, if parents do not declare against it.	No parson, vicar, minister, &c. solemnizing marriages between persons, both or one of whom shall be under the age of twenty-one years, after bans published, shall be punishable by exxlesiastical censure for solemnizing such marriages without consent of parents and guardians, whose consent is required by law, unless such parson, vicar, &c. have notice of the dissent of such parents and guardians. And in case such parents or guardians, or one of them, publically cause to be declared, in the church or chapel where the bans shall be so published, at the time of such publication, their dissent to such marriage, such publication of bans shall be void. Id. s. 3. The husband is liable to the wife's debts contracted before marriage, whether he had any portion with her or not; and this law presumes reasonable, because by the marriage the husband acquires an absolute interest in the personal estate of the wife, and has the receipt of the rents and profits of her real estate during coverture: also whatever accrues to her by her labour, or otherwise during the coverture, belongs to the husband; so that, in favour of creditors, and that no person's act should prejudice another, the law makes the husband liable to those debts with which he took her attached. 1 Rol. Abr. 352. 3 Mod. 186. But if a feme sole indebted marries and dies, the husband shall not be charged, for they must be recovered in the lifetime of the wife. 1 Rol. Abr 351.
Husband's power over his wife.	The husband by law, has power and dominion over his wife, and may keep her by force within the bounds of duty; and may beat her, but not in a violent or cruel manner; for, in such case, or if he but threaten to beat her outrageously, or use her barbarously, she may bind him to the peace, by suing out a writ of supplicavit out of the Chancery, or may apply to the Spiritual Court for a divorce propter soevitiam. Crom. 28. 136. Dolt. c. 68.
A feme covert favoured by law.	A wife, or feme covert, is so much favoured in respect to that power and authority which her husband has over her, that she shall not suffer any punishment for committing a bare theft, in company with, or by coercion of her husband. 1 Haw. 2, 65.
Not accessary in receiving her husband.	She shall not be deemed accessary to a felony for receiving her husband who has been guilty of it, as her husband shall be for receiving her, because she is under the power of her husband, and she is bound to receive him. 3. Inst. 108. 1 Haw. 2. 1 H. H. 47. But if she commit a theft of her own voluntary act, or by the bare command of her husband; or be guilty of treason, murder, or robbery, in company with, or by coercion of her husband, she is punishable as if she were sole, because of the odiousness and dangerous consequences of these crimes. 1 Haw. 2. 1 H. H. 47. Dalt. c. 157.
Where she is a principal actor.	And the coercion of the husband is only a presumption till the contrary appear; for if upon the evidence it can clearly appear that the wife was not drawn to it be the husband, but that she was the principal actor and inciter of it, she seems to be guilty as well as the husband. 1. H. H. 516. And generally a married woman shall answer as much as if she were sole, for any offence not capital, against the common law or statute; and if it be of such a nature that it may be commited by her alone, without the concurrence of her husband, she may be punished for it without the husband, by way of indictment; which being a proceeding grounded merely on breach of the law, the husband shall not be included in it for an offence to which he is no way privy. 9 Co. 71. 1 Haw. 3. But if a wife incur the forfeiture of a penal statute, the husband may be made a party to an action or information for the same (as he may generally to any suit to a cause of action given by his wife), and shall be liable to answer what shall be recovered thereupon. 1 Haw. 3.
Criminal matters.	The husband shall not answer for damages given in a criminal matter, as in an information in suppressing a will; though for civil offences it is otherwise, as battery, slander, or assumpsit, by feme covert. Noy 103, 104.
Keeping a bawdy-house.	But a wife may be indicted together with her husband, and condemned to the pillory with him for keeping a bawdy house; for this in an offence as the the government of the house, in which the wife has a principal share; and also such an offence as may generally be presumed to be managed by the intrigues of her sex. 10 Mod. 63. 1 Haw. 2.
Eloping	If a wife willingly leave her husband, and go away, and continue with the advouterer, she shall be debarred for ever of action to demand her dower. 13 Ed. 1. si. 1. c. 34.
If the wife voluntarily elopes, the husband is not bound to pay the debts she may contract.	T. 4. G. 2. Child & al. v. Hardyman, at nisi prius Guildhall. On an action brought for linen sold to the defendant's wife, on non assumpsit pleaded, the delivery was proved, and that she lived in a very lewd manner; one Mr. Nott frequently coming to her at her husband's house, and they were locked up together in a bed-chamber; and that other indecencies passed between them. And it was also proved, that she several times went to the house of this Mr. Nott, a gentleman in Wiltshire, who lived within three miles of the defendant's house. It did not appear farther than that he disliked her going and staying at Mr. Nott's, but under these circumstances they continued to live together. Afterwards she went away from him, and went to Marlborough, where she resided some time. But after the leaving her husband's house, it did not appear that she ever saw Mr. Nott, of lived in a lewd manner. After some time she sent Lucas, an attornet, to her husband, to desire that her would receive her again; the husband told him, that if she came again, she should never sit at the upper end of his table, nor have the government of the children, but should live in a garret. Then Lucas proposed to him, to make her an allowance, and proposed 80 or 100 l. per annum, he being worth about 500 or 600 l. per annum; but that was not complied with: and afterwards she came to London and bought linen to the amount of 53'. Raymond, chief justice, was of opinion, that the plaintiff should be called; and accordingly he was nonsuited. He held, if a woman elopes from her husband, though she does not go away with an adulterer, or live in an adulterous manner, the tradesman trusts her at his peril, and the husband is not bound. And this had been so adjudged in two or three cases; indeed if he refuses to receive her again, from that time it may be an answer to the elopement. In this case he does not absolutely refuse to receive her again; but that she should neither sit at his table, nor have any government of the children, but should be kept in a garret; and she deserved no better usage; so the plaintiff was nonsuited. 2 Str. 875. E. 3 Ann. Robinson v. Gosnold. A husband, discovering his wife to be a very lewd woman, goes away from her, and she, after having lived several years with an adulterer, was received in the plaintiff's house, who entertained her as the husband's wife. And this action being on an indebitatus assumpsit against the husband for lodging and dieting the wife, Holt, chief justice, held, that let the woman be ever so vicious, yet while she cohabits with the husband, he is bound to provide necessaries for her, and is liable to an action from such a furnish her with them; for his bargain was to take her for better for worse. In like manner it is, if the husband turns his wife away for her wickedness, he remains still chargeable for her necessaries; but if the wife leaves her husband, they that trust her after it is notorious that she has left him, do it at their peril, and shall not therefore charge the husband. And he seemed to be of opinion, that if a wife had run away from her husband, and contracted debts, and afterwards the husband received her, or came after her, or laid with him for a night, that would make him liable for the debts. Like the case where a wife elopes with an adulterer, though she thereby forfeits her dower, yet, if the husband will of his own accord receive her again, she shall have her dower again. 6 Mod. Rep. 171. M. 12 G. Morris v. Martin, at Guildhall. In an action for meat and other things, provided for the defendant's wife, the defendant proved she went away from him with an adulterer. Raymond, chief justice, held, that the husband should not be charged for necessaries for her, though the plaintiff, who provided for her, had no notice; and he said, Holt, chief justice, always ruled it so. He also put the case of an apothecary, who took a sick woman into his house, being the wife of a country gentleman, from whom she had gone away with an adulterer: so the plaintiff was nonsuited. Str. 646. M. 18 G. 2. Bolton v. Prentice. In assumpsit for goods sold and delivered to the defendant's wife, the case appeared to be, that the defendant and his wife had formerly lodged at the plaintiff's house, and the plaintiff furnished her with goods; and the defendant finding the plaintiff had helped her to pawn her watch, and suspecting he confederated with her, left the lodgings, after paying the plaintiff his bill, forbidding him ever to trust her again. After this, the defendant and his wife cohabited together for a year, when, without any cause appearing, he left her, locked up her cloaths, and on her finding him out, refused to admit her, and struck her, and declared he would not maintain ehr, or pay any body that did. In this distress, she borrowed cloaths of her friends, and applied to the plaintiff, who furnished her with necessaries, according to the defendant's degree, which the defendant refusing to pay for, this action was brought; and on the trial, the jury found for the plaintiff. On a motion for a new trial, the court held the verdict was right; for whilst there were at the plaintiff's, there was a particular reason for the particular prohibition; yet the turning her away destitute afterwards, without cause, gave her the general credit again: and if a husband should be allowed, under the notion of a particular prohibition, to destroy her obtaining credit in one place, he may in the same manner prevent it with all people she is acquainted with. He appears to be a wrong doer, and therefore has no right to prohibit any body. The distinguished this case from the case of Manby v. Scott, 1 Sid. 109. for there the wife was guilty of the first wrong, in eloping. Str. 1214. H. 2 Ann. Etherington v. Parrot. On a trial before Holt, chief justice, at Guildhall, in an action on the case for goods, sold and delivered, the evidence to charge the defendant was, that the goods were taken up by the defendant's wife to make her cloaths, and that they cohabited together: but on the defendant's side it was given in evidence, that his wife was an extravagant woman, and used to pawn her cloaths for money to buy drink, and get drunk: that she pawned a suit of cloaths, which cost 7 l. for 1 l. 8 s. and when her husband redeemed them, pawned the again; that at the time of buying these, she had very good cloaths; that she had bought cloaths ehre before, and her husband had paid for them, he gave notice to the plaintiff's servant, who received the money, that the master should trust her no more; which he promised not to do. By Holt, chief justice: If a husband turns away his wife, he gives her credit wherever she goes, and must pay for necessaries for her; but if she runs away from him, he shall not be liable to any of her contracts, for it is the cohabitation that is an evidence of the husband's assent to contracts made by his wife for necessaries: but if the husband has solemmly declared his dissent that she shall not be trusted, and person that has notice of this dissent, trust her at his peril after; for the husband is only liable on account of his own assent to the contracts of his wife; of which assent cohabitation causes a presumption; for the wife has no power originally to charge her husband, but is absolutely under his power and government, and must be content with what he provides; and if he does not provide necessaries, her remedy is in the Spiritual Court. But here were sufficient necessaries provided, and also the husband had forbid the plaintiff to trust her; and notice to the plaintiff's servant usually employed by him in his trade, was a good notice to his master, and therefore he cannot charge the defendant. On which the plaintiff was nonsuited. It was also observed by the chief justice, that if a wife takes up silks, and pawns them before they are made into cloaths, the husband shall not be liable for the silks, because they never came to his use: but otherwise, if they were made into cloaths, and then pawned by her. 2 Raym. 1006. An agreement between a husband and wife to live separate, and that the wife should have a separate maintenance, shall bind them both till they agree to cohabit again. 8 Mod. 22.
Parting by articles of separation.	E. 31 G. 2. K. v. Mead. On a habeas corpus brought by John Wilkes, esq. to bring up the body of Mary Wilkes, his wife, before Denison, justice: the substance of the return was, that her husband, (having used her very ill) in consideration of a great sum which she gave him out of her separate estate, had consented to her living alone, executed articles of separation, and therein covenanted never to disturb her, or any person with whom she should live: that she lived with her mother, and that this writ was brought with a view of seizing her by force. The court held the deed of separation to be a formal renunciation by the husband of his marital right to seize his wife, or force her back to live with him. They also declared that any attempt made by the husband to molest her in return from Westminsterhall, would be a contempt of the court; and they told the lady she was at full liberty to go where, and to whom she pleased. Burr. 542. M. 8 G. Mr. Lister's Case. Mr. Lister married Lady Rawlinson, who was a widow, and had before her marriage with Lister settled her estate in her own power, and out of his controul; and afterwards there being some disagreement between them, he, by a proper writing duly executed, covenanted to allow her so much every year for her maintenance, and that she might live separate from him, to which she agreed, and accordingly they lived apart for some time; the husband pretending a desire to be reconciled to his wife, but in fact only wanting more money of her, she refused, whereon he, with the assistance of another person, forced her into a coach as she was coming from church on a Sunday, and carried her into the Mint, and kept her under strict confinement. And she being brought into court by habeas corpus, her husband moved by his council, that the court would not interpose between husband and wife; that she could not deny herself to be his wife, adn that by law the husband had a coercive power over the wife. By the court: An agreement between husband and wife to live separate, and that she should have a separate maintenance, shall bind them both, till they both agree to cohabit again; and if the wife is willing to return to her husband, no court will interpose or obstruct her. But as to the coercive power which the husband has over his wife, it is not a power to confine her; for by the law of England, she is entitled to all reasonable liberty, if her behaviour is not very bad; and therefore, she shall now be set at liberty, if it is her pleasure so to be. She answered, she desired to be set at liberty; and thereon she was discharged out of the custody of her husband, and went out of the court with her son; but that he (the husband) should have leave to write to her, and use any lawful means in order to a reconcilliation, provided she was willing to see him, and that her children and servants should not hinder him, unless by her order; but that whenever she permitted him to come to her, he should not offer any violence or uncivil behaviour to her person. 8 Mod. 22.
A scold indictable	T. 3 Ann. Q. v. Foxby. Error. She brought a writ of error on a judgement against her, on an indictment for being common scold; and on affidavits taht she was so ill, that without danger of her life, she could not come up out of Kent, where she lived, to assign error in person, according to the course of the court, it was prayed by her cousel, that she might have leave to assign error by her clerk in court. By the court: Scolding is not the offence; but the frequent repetition of it, to the disturbance of the neighbourhood, makes it a nuisance, and as such it has always been punishable by the leet, therefore indictable; and we have of late indulged people on writs of error, on judgements on indictments, to appear by attourney; and here that court enlarged the time till the next term, to see how she would behave in the mean time: and in Michaelmas term she and her husband came into court, and assigned errors. 6 Mod. 213. Husband and wife cannot be witnesses for one another, nor regularly against one another. 2 Haw. But in criminal cases, the wife may be a witness against her husband, where she is the party grieved; but not in civil cases. Dalt. c. 164. T. 11 G. K. v. Azire, on an indictment against the husband for an assult on the wife, the chief justice allowed her to be a good witness for the king; and cited lord Audley's case. State Trials. Str. 633.
Wife may demand surety for the peace against the husband.	A wife may demand surety of the peace against her husband, threatening to beat her outrageously, and a husband also may have it against his wife. 1 Haw. 147. T. 31 G. 2. K. v. Earl Ferrers. An habeas corpus was issued, commanding Laurence earl Ferrers to bring up the body of his countess, that she might receive the protection of the court against the said earl, and swear the peace agaisnt him, if she should think proper. The earl disobeying the writ of habeas corpus, an attachment was granted against him. Upon which he permitted her to come into court, and she exhibited articles of the peace against him. And the earl was obliged to enter into recognizance accordingly; himself in 5000 l. and two sureties in 2500 l. each. E. 17 G. 2. Sim's case. He exibited articles of peace against his wife, and the court received the same without any objection. Str. 1207. A wife cannot be bound herself by recognizance, but her sureties only. Dalt. c. 117. She may surrender a lease in the court of Chancery or Exchequer, in order to renew the same. 29 G. 2. c. 31.
Husband not liable to a wife's debts after her death.	H. 1735, in Chancery. Heard and Stamford. The husband, as such, is not chargeable in a court of equity, any more than at law, with the debts of his wife after her decease, not even though he had a large fortune with her: but, during the coverture, he is liable to all her debts, though he had no fortune with her. Cas. Talb. 173. 3 Peere Will. 409.
Prosecution for conspiracy not maintainable.	A prosecution for conspiracy is not maintainable against a husband and wife only, because they are esteemed but one as a person in law, and are presumed to have but one will. 1 Haw. 192.
Receiving stolen goods.	If a married woman shall receive stolen goods into her house, knowing them so to be; or shall lock them in her chest or chamber, her husband not knowing thereof; if her husband, as soon as he is made acquainted therewith, shall forthwith forsake his house and her company, and make his abode elsewhere, he shall not be charged for her offence; whereas otherwise the law will impute the fault to him, and not to her. Dalt. c. 157. If a married woman shall maliciously kill her husband, it is petty treason; but if the husband kill his wife, it is but murder. Dalt. c. 142.
Being guilty of forcible entry.	A married woman by her own act (but not in respect of what is done by others at her command, because all such commands of hers are void) may commit a forcible entry or detainer; and, upon the justice's view of the force, she shall be therefore imprisoned, and she may be fined in such a case: but such fine set upon the wife shall not be levied upon the husband; for the husband shall never be charged for the act or default of his wife, but when he is made a party to the action, and judgement given against him and his wife. Dalt. c. 136. 9 Co, 72. 11 Co. 61.
Wife guilty of slander, trespass, or assault.	If a wife shall commit any riot, or do any trespass or other wrong, she is punishable for it; and for a trespass done by her, or for a scandal published by her, the action lies both against the husband and wife, and there the husband is chargeable to the damages or fine, because he is party to the action and judgement; but if a wife, without her husband, be indicted of a trespass, riot, or any other wrong, there the wife shall answer, and be party to the judgement only: and, in such case, the fine set upon the wife shall not be levied upon the husband: yet after the husband's death, such damages or fine shall then be levied of the wife herself; and as for imprisonment, or other corporal pain, it shall be inflicted upon the wife only, and not upon the husband for his wife's act or default. Dalt. c. 139.
Wife taken in execution.	In the case of Finch and his wife, against Dudding and his wife, M. 19 G. 2. in an action for the battery of the plaintiff's wife by the defendant's wife, there was judgement for the plaintiff's, and the wife of the defendant was only taken in execution. She moved to be discharged, but upon affidavits of endeavours to take the husband, and, it not appearing that there was any design to screen him, the court refused it. Str. 1237. If a woman be found guilty of battery, and fined, the husband shall not be liable. 11 Hod. 253.
Husband cannot stop proceedings in his wife's suit in the Spiritual Court.	M. 10 G. Tarrant and Mawr: the wife libelled in the Spiritual Court for calling her a whore, and there being proceedings likewise for defamation against her by the other, the two husbands enter into an agreement to stay proceedings on both sides; and, upon one of the wives going on, the husband moved for a prohibition, but it was denied: for by the court, the suit is by the wife, to recover her fame, and it is not in the power of the husband to restrain her. Str. 576. Where the husband, during his cohabitation with the wife, makes her an allowance of so much a year for her expences, if she from her own housewifery saves any thing out if it, this will be the husband's estate, and he shall reap the benefit of his wife's frugality; because, when he agrees to allow her a certain sum yearly, the end of the agreement is, that she may be provided with cloaths and other necessaries; and whatever is saved out of this belongs to the husband. Freem. Rep. See also [[parish law on women\|WOMEN]], [[parish law on bigamy\|POLYGAMY]], and [[parish law on rape\|RAPE]].

parish law on husbands and wives

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