seems to protect the wife in all felonies committed by her in company with her husband, except murder and manslaughter. The reason why she is excused in cases of burglary, larceny and the like is, because it is supposed she cannot tell what property the husband may claim in the goods. (4 Black. Com. 28, 29, notes 10, 11, 12.) This, however, can only be considered the presumption of law by reason of the presence of the husband when the offense was committed. The more correct rule is, that if a felony be shown to have been committed by the wife in the presence of the husband, the prima facie presumption is, that it was done by his coercion; but such presumption may be rebutted by proof that the wife was the more active party, or by showing an incapacity to coerce. (1 Russell on Crimes, 22.) And whenever it appears that the offense of the wife was committed under the coercion of the husband, express or implied, the husband is responsible for the offense. There is no legal presumption that acts done by a wife in her husband's absence are done under his coercion or control. Indeed, if she commit a crime in the absence of her husband, even by his order or procurement, her coverture will be no defense. (Commonwealth v. Butler, 1 Allen's [Mass.] R. 4.) And in all cases, the presumption which the law raises when the acts complained of are done by the wife in the presence of the husband, like other presumptions it may be repelled. (Wagner v. Bill, 17 Barb. R. 321, 325. Commonwealth v. Lewis, 1 Metc. [Mass.] R. 151, 153.) It is not necessary to allege in the indictment against a feme-covert, that the offense was not committed by the coercion of her husband. (State v. Nelson, 29 Maine R. 329.) In the State of Ohio, it has been held that if the wife join with the husband in committing a crime less than murder, she is presumed to act under the coercion of her husband, and in law is not guilty. (Davis v. The State, 15 Ohio R. 72.) This doctrine needs to be qualified. The presumption in such a case is, that the wife is under the coercion of her husband; but if the circumstances show that she acted voluntarily and with a felonious intent, she is equally guilty with her husband, and should be convicted.

It has been held in the State of Massachusetts, that the wife can. not be indicted jointly with her husband, for a larceny. (Commonwealth v. Trimmer, 1 Mass. R. 476. Martin v. Commonwealth, Ib. 390.) And the same doctrine has been held in the State of Pennsylvania. (Pennsylvania v. Lovell, Addison's R. 18.) But

this is undoubtedly erroneous. There is no doubt that a wife may be jointly indicted with her husband. The later authorities on the point are too numerous to be withstood. Whether she can be convicted separately, or jointly with him, is a question to be determined by direct evidence, or legal presumption, concerning the freedom of her action, or the coercion of her husband. (Vide Commonwealth v. Murphy, 2 Gray's [Mass.] R. 510. Wagner v. Bill, 19 Barb. R. 321. State v. Parkerson, 1 Strobhart's [S. C.] R. 169.) The husband is liable for the penalty denounced against a tollgatherer by statute, for exacting and receiving more than the legal tolls, though it be exacted and received at the gate by his wife. So held, when it appeared that the toll was demanded and received by the wife in the absence of her husband. (Marselis v. Seaman, 21 Barb. R. 319.) This is upon the principle that the wife, in the absence of her husband, is presumed to be his agent, and when she demanded and received the toll, she was acting within the scope of the employment, and her acts bound her husband.

Thus much upon the subject of the liabilities incurred by the husband on account of the marriage; the reason assigned for which liabilities, at common law, is, that he is entitled to the rents and profits of the wife's real estate during coverture, and to the absolute dominion over her personal property in possession, which will be fully treated of hereafter.

CHAPTER XX.

THE INTEREST OF THE HUSBAND IN THE WIFE S PERSONAL PROPERTY AT COMMON LAW-HIS INTEREST IN HER PERSONAL PROPERTY IN POSSESSION HIS INTEREST IN PERSONAL ESTATE BELONGING TO HER AS EXECUTRIX OR ADMINISTRATRIX-HIS INTEREST IN HER PERSONAL PROPERTY UNRECOVERED AT THE TIME OF HER DEATH-HIS INTEREST IN HER CHATTELS REAL.

§ 234. Ar common law, marriage is an absolute gift to the husband of the goods, chattels and personal estate of which the wife was actually or beneficially possessed at the time of the marriage, and of all such as shall come to her during coverture. This is the doctrine clearly laid down by the text writers, and universally sanctioned by judicial authority. (1 Bright on Husband and Wife,

34. Bing. on Cov. 208. Legg v. Legg, 8 Mass. R. 99. Howes v. Bigelow, 13 ib. 384. Winslow v. Crocker, 17 Maine R. 29. Hyde v. Stone, 9 Cow. [N. Y.] R. 230. Blanchard v. Blood, 2 Barb. R. 352. Morgan v. Thames Bank, 14 Conn. R. 99. Matter of Grant, 2 Story's R. 312. Hoskins v. Miller, 2 Dev. [N. C.] R. 360. Hawkins v. Craig, 6 Mon. [Ky.] R. 257.) The husband, therefore, becomes absolutely vested with all such personal property of his wife as comes to her actual possession during coverture, so that he may make any disposition of it in his life-time without her consent, or devise it by will, and such disposition of it will be effectual, whether he survives her or not; and should he neglect to dispose of it by will or otherwise in his life-time, it will go to his executors or administrators, and not to the wife, though she survive him. And so rigid is this rule at common law, that though the husband live separate from his wife, and in continued adultery, his right to her personal property is still the same, so long as the relation of husband and wife continues. (Co. Litt. 351 b. Russell v. Brooks, 7 Pick. R. 65. Turtle v. Muncy, 2 J. J. Marsh. [Ky.] R. 82.)

If chattels are bequeathed to a wife generally, without any restriction, and are reduced to possession by the husband, with her consent, they become his absolute property in equity as well as law. (Shirley v. Shirley, 9 Paige's R. 363.)

But if personal property be not in the possession of the wife at the time of the marriage, the husband must reduce it to his possession during coverture, in order to acquire an absolute title to it and pass it to his representatives. (Early v. Sherwood, 1 Dudley's [Geo.] R. 7. Mayfield v. Clifton, 3 Stewart's [Ala.] R. 375. Hynes v. Lewis, 1 Taylor's [N. C.] R. 44. Whithin v. Frazier, 1 Haywood's [N. C.] R. 375. Byrne v. Stewart, 3 Dessau. [S. C.] R. 135. Wilkinson v. Perrin, 7 Mon. R. 216, 246.) It has been held, however, that a vested remainder in chattels, dependent on a life estate, vests in the husband absolutely, and without any reduction to possession. (Dade v. Alexander, 1 Wash. [Va.] R. 30. Lowry v. Houston, 3 How. [Miss.] R. 394. Pinckard v. Smith, 6 Litt. [Ky.] R. 331. Pattin v. Hall, 2 B. Mon. R. 462.) Where the wife has a legal estate in personal chattels, and the right of immediate possession in severalty, the rights of the husband will vest the property in him. (Savery v. Gardner, 1 Hill's [S. C.] R. 191.)

A share of personal estate, accruing in the right of the wife during coverture, vests, even before distribution is made, in the husband absolutely, and does not in the event of his prior death survive to the wife. (Griswold v. Penniman, 2 Conn. R. 564.)

Money in the hands of a wife at the decease of her husband, earned and received by her before the marriage, or given to her by her husband afterward, is the property of the husband, and passes to his administrator. (Washburne v. Hale, 10 Pick. R. 429.)

So far as regards creditors of either husband or wife, all the money and other personal property of the family are presumed to be the husband's, and all the earnings of the family, with some exceptions, are conclusively so presumed. (Walker v. Reamy, 36

Penn. R. 410.)

Notwithstanding the statutes of Pennsylvania securing to married women rights not guaranteed to them by the common law, in 1853 it was declared that the husband was entitled to the person and labor of his wife, and all the benefits of her industry and economy. (Raybold v. Raybold, 20 Penn. R. 308.)

With respect to the rule that requires the husband to reduce his wife's personal property to possession in order to hold it as his own, it has been held that where a wife before marriage owned bank stock, and her husband, after marriage, received the dividends until the bank charter expired, at which time the stockholders were entitled to take half the amount of their shares in shares of a new bank, and the balance in money, and he subscribed the authorized amount in the name of his wife, and refused to receive the balance in money, saying it was not his, but his wife's, and such balance was then passed to his credit, under the circumstances he did not reduce the shares to his possession, and it was therefore further held that after his decease his wife could recover of his executor the said balance of money and the dividends received by him, and a sum paid to him on account of the reduction of the capital stock, with interest thereon. (Stanwood v. Stanwood, 17 Mass. R. 57.) And it has been held in the surrogate's court of the city and county of New York, that the husband's taking the dividends of stock standing in the wife's name only, reduces the dividends, and not the stock, into his possession. (Burr v. Sherwood, 3 Brad. R. 85.)

Money earned by the wife while the parties live apart belong absolutely to the husband, at common law, irrespective of the cir

cumstances of their separation, so long as the marriage relation continues between them. (Glover v. Proprietors of Drury Lane, 18 Eng. C. L. R. 269. Prescott v. Brown, 23 Maine R. 305.) By the marriage the husband becomes the owner, not only of his wife's personal property, but if they unite in selling her realty and receive the money for it, this is his also; and if it is invested in real estate, and the title taken to the husband, the estate is his. (Ramsdall v. Craighill, 9 Ohio R. 197.) It has, however, been held in the State of Pennsylvania that where a wife allows a mortgage for the purchase-money on the sale of her land, to be given to herself and husband jointly, it is not sufficient evidence of a gift by her to her husband to sustain his title to the same. (Trimble v. Ries, 37 Penn. R. 448.) But in the State of Michigan, it has been held that the wife's property can be acquired by the husband only by gift or purchase, of which use or simple possession is not sufficient evidence. This, however, is in some respects different from the rule at common law. (White v. Zane, 10 Mich. R. 333.)

It has been held by the English chancery, on the principle that marriage is a gift of the personal property of the wife to the husband, that there is no difference between property to which the wife is entitled in equity and property to which she is entitled at law. (Osborn v. Morgan, 41 Eng. Ch. R. 432.)

§ 235. The marriage at common law, also vests in the husband the personal chattels of his wife in the hands of a third person at the time of the marriage; and he may therefore bring detinue or replevin for them without joining his wife in the action. (Powers v. Marshall, 1 Sid. R. 172. Bowen v. Mattaire, 1 Selw. N. P. 11th ed. 314.) Of course, if the chattels be converted subsequent to the marriage, the husband may bring trover for them; because this supposes the property in the wife, which by the marriage is transferred to the husband, and therefore the conversion is a tort to him alone. (Powers v. Marshall, supra. Blackborne v. Graves, 2 Lev. R. 107.) And though the husband and wife may in this case join in the action as plaintiffs, yet they cannot allege the conversion to be to the damage of both, for the reason that the property is in the husband alone. (Nelthorp v. Anderson, 1 Salk. R. 114.)

In all cases where the wife's chattels come to the possession of the husband an action in relation to them may be brought by the