744 ■' BARON and FEME. 
feme foie, the court gave leave, notwithftanding the mar¬ 
riage, to enter up judgment; for that the authority (hall 
riot be deemed to be revoked or countermanded, becaufe 
it is for the hufband’s advantage; like a grant of a rever- 
fion to a-feme foie, who marries before attornment, yet 
the tenant may attorn afterwards: otherwife, if a feme 
foie gives a warrant of attorney, and marries, for that is 
to charge the luifband. i Salk. 117, 399. But, if a feme 
foie makes her will, and devifes her land to J. S. and af¬ 
terwards marries him, and then dies, yet J. S. takes no¬ 
thing by the will, becaufe the marriage was a revocation 
of it. 4 Co. 60. 
Equity will fet afide the intended wife’s contrails, tho’ 
legally executed, when they appear to have been entered 
into with an intent to deceive the hufband, and are-in de¬ 
rogation of the rights of marriage; as, where a widow 
made a deed of fettlement of her eftate, and married a fe- 
cond hufband, who was not privy to fuch fettlement ; 
and, it appearing to the court, that it was in confidence of 
her having fuch eftate that the hufband married her, the 
court fet afide the deed as fraudulent; fo, where the in¬ 
tended wife, the day before her marriage, entered private¬ 
ly into a recognizance to her brother, it was decreed to 
be delivered up. 2 Chan. Rep. 41, 79, 81. iVern.ij. But, 
where a widow, before her marriage with a fecond huf¬ 
band, afiigned over the greateff part of her eftate to truf- 
tees for children by her former hufband; though it was 
infifted, that this was without the privity of the hufband, 
and done with a defign to cheat him, yet the court thought, 
that a widow might thus provide for her children before 
fbe put herfelf under the power of a hufband; and, it 
being proved, that 8000I. was thus fettled, and that the 
hufband had fupprefted the deed, he was decreed to pay 
the whole money, without direclingany account. 1 Vern. 408. 
III. Power of the Husband over the Wife. —By 
marriage the hufband hath power over his wife’s perfon ; 
and, by the old law, he might give her moderate correc¬ 
tion (1 Hatok. P.C. 258); but this power was confined 
within reafonable bounds. Moor. 874. In the time of 
Charles II. this power of correction began to be doubted. 
The courts of law, however, flill permit a hufband to re - 
ftrain a wife of her liberty, in cafe of any grofs mifbeha- 
viour. Stra. 478. But, if he threaten to kill her, See. fbe 
may make him find furety of the peace, by fuing a writ 
of fupplicavit out of Chancery, or by preferring articles 
of the peace-again ft him in the court of King’s Bench, or 
flie may apply to the fpiritual court for a divorce, propter 
faevitiam. Crom. 28, 136. F. N. B. 80. Dalt. c. 68. Lamb 7. 
Crom. 133. So may the hufband have fecurity of the peace 
againft: his wife. Sira. 1207. But a wife cannot, either by 
herfelf or her prochein amy, bring a hotnine replegiando a- 
gainft her hufband ; /or he has by law a right to the cuf- 
tody of her, and may, if he think fit, confine her, but he 
mud not imprifori her; if he does, it will be a good caufe 
for her to apply to the fpiritual court for a divorce, propter 
J'oevitiam ; and the nature and proceedings in the writ de ho- 
mine replegiando ftiew that it cannot be maintained by the 
wife againft her luilband. Free, in Chan. 492. The coarts 
of law will grant a habeas corpus to relieve a wife from 
unjuft imprifonment. 
The ground of an aCtion for adultery, is the injury done 
to the hufband, by alienating the affections of his wife, de- 
ftroying the comforts arifing from her company, and that 
of her children, and impofing on him a fpurious ifl'ue. In 
this action the plaintiff anuft bring proof of the aCtual fo- 
lemnization of a marriage; nothing (ball fiupply its place : 
cohabitation or reputation are not fufficient, nor any col¬ 
lateral proof whatever. 4 Burr. 2057. Bull.N.P. 27. But 
it is not neceffary to prove a marriage according to the ce¬ 
remony of the church of England; if the parties are 
Jews, Quakers, See. proof of a marriage according to their 
rites is fufficient. The confeffion of the wife will be no 
proof againft the defendant; but a difeourfe between her 
and the defendant may be proved, and the defendant’s let- 
fdfs to her; but the wife’s letters to the defendant will be 
no evidence for him. The injury in the cafe of adultery 
being great, the damages are generally confiderable, but 
depend on circumftances ; fuch, on the one hand, as go in 
aggravation of damages, and to fliew the circumftances 
and property of defendant; or, on the other hand, fuch as 
go in extenuation of the offence, and mitigation of dama¬ 
ges. Bull. ALP. 27. Efp. 343,4. The defendant may prove 
particular aCts of criminality in the wife, previous to her 
guilt with him, but not her general character, in extenu¬ 
ation. If a woman is fuifered by her hufband to live as a 
common proftitute, and a man is thereby drawn into crim. 
con. no aCtion at the fuit of the hufband will lie; but, if 
the hufband does not. know this, it goes only in mitigation 
of damages. It is now_determined, that, if the hufband 
content to his wife’s adultery, this will go in bar of his 
aCtion. 4 Term Rep. 657, in the cafe of Duberly v. Gun¬ 
ning. See 12 Mod. 232. It teems to be in the diferetion of 
the court to grant a new trial in this aCtion, on account of 
exceflive damages; but which they will be very cautious 
in doing. If adultery be committed with another man’s 
wife without any force, but by her own content, though 
the hufband may have afiault and battery, and lay it vi & 
armis, yet they (hall- in that cafe punifh him below for that 
very offence ; for an indictment will not lie for fuch an af- 
fault and battery; neither (hall the hufband and wife join 
in an aCtion at common law ; and therefore they proceed 
below, either civilly, (that is, to divorce them,) or crimi¬ 
nally, becaufe they were not criminally profecuted above. 
7 Mod. 81. 
IV. Interest of Husband and Wife in their refpec- 
tive Es tates. —With refpeCt to the lands of the wife, the 
freehold or right of poffeflion of all her lands of inheri¬ 
tance vefts in the hufband immediately upon the marriage, 
the right of property (till being preferved to her. 1 Injl': 
351 a , 273 b. This eftate lie may convey to another. An 
incorrect ftatement in the book called-Cafes in Equity, 
temp. Ld. Talbot , p. 167, of what was delivered by his lord- 
fhip in the cafe of Robinfon v. Cummins, feems to have 
given rife to a notion that the luifband could not make a 
tenant to the pnecipe of his wife’s eftate for the purpofe 
of fuffering a common recovery of it, without the wife’s 
previoufiy joining in a fine ; but it now feems to be a fet¬ 
tled point that he can. See Cruife on Recoveries. By (tat, 
32 Hen.VIII. c. 28, leafes of the wife’s inheritance muff 
be made by indenture, to which the hufband and wife are 
both parties, to be fealed by the wife, and the rent to be 
referved to the hufband and wife, and to the heirs,of the 
wife; and the hufband (hall not alien the rent longer than 
during the coverture, except by fine levied by hufband 
and wife. By the fame aCt it is provided, that no fine or 
other aCt done by the hufband only of the inheritance or 
freehold of his wife fnall be any difcontinuance thereof, 
or prejudicial to the wife or her heirs, but they may en¬ 
ter according to their rights; fines whereunto the wife is 
party and privy (and the above-mentioned leafes) only ex¬ 
cepted. As to alienations of a hufband’s eftate, by a wo¬ 
man tenant in dower, &c. fee flat, n Hen. VII. c. 20, 
which makes them void. 
As to chattels real, and things in aCtion, of the wife; 
where the hufband furvives the wife. At the common 
law, no perfon had a right to adminifter. The ordinary 
might grant adminiftration to whom he pleated, till the 
ftatutes which gave it to the next of kin, and, if there 
were perfons of equal kindred, whichever took adminif¬ 
tration firft was entitled to the Jurplus. The ftatute of 
diftribution was made to prevent this. Where the wife 
w’as entitled only to the trull of a chattel real, or to any 
cliofe in aCtion, or contingent intereft in any kind of per- 
fonalty, it feems to have been doubted, whether, if the 
hufband furvived her, he was intitled to the benefit of it or 
not. 1 Injl. 351. Rol.Ab. 346. Cro. Eliz. 466. Gilb.C'a.Eq. 
234. Upon the conftruCtion of the ftatute of Diftribu- 
tions, it has been held, that the hufband may adminifter 
to his deceafed wife; -and that he is entitled for his own 
benefit to all her chattels real, things in aCtion, trufts, and 
every 
