The herald., 1897-02-02

each other obligations OF mutual re-
spect, fidelity and support" (Sectfon 155.
civil code.) Neither husband nor wife
has any interest In the property OF the
other. but neither can be excluded from
the others dwelling" (Section 157. CIV
II code.) Other sections Of the civil code
give to the wife charge and control of
her separate estate, with all of its rents,
issues and profits, and she may, without
her husbands consent. convey the same.
Her earnings are not liable for the debts
Of the husband; her separate property is
not liable for his debts; the estate by
courtesy is abolished.
HUSBAND AND WIFE NOT ONE.
Thus 1t is that woman has been eman-
cipated, and her property taken from
under the contro lof her husband. That
oneness, which once existed in law, Is
of the past In California Before the
adoption of section 1877 Of the civil code
in its present form, our supreme court,
in Galland VS.. Galland, 38 CAL, 265, held
that court of equity could compel an
offending husband to provide out Of the
common property for the support of an
ill-used wife, who had been forced to
seek protection elsewhere than under
the husbands roof; that this power ex-
listed Independently of the statute, and
within the general powers of a court of
equity, and upon the broad ground that
StioifS ODllSdliOHS HluSt Ire upO!l
any husband, who has abandoned his
wife, to support her. To fail to do so
is a wrong, acknowledged at common
law, though that law knows no remedy
because there the wife cannot sue the
husband. But in equity the wife can
sue the husband, and 1t is the province OF
court OF equity to afford a remedy
where conscience and law acknowledge
right, but know no remedy.
WIFE'S MORAL OBLIGATION
These sections above referred to of
our civil code, declare the mutual duty
OF support and the duty and obligation
or the Wife to the inf1rm husband without
means Can there exist a greater moral
obligation than the one resting upon this
defendant.with ample means to care for
her infirnnnusband, driven from home by
cruelty. penniless. alone and friend
less? The law acknowledges his right
to support. good conscience demands it,
and no remedy exists, in my opinion, ex-
cept the one sought by this proceeding
1t can scarcely be said that the right
afforded by the section last cited is to
be worked out by the contracting of
debts for support on account of which
an action might be maintained by those
furnishing necessaries of life, for we are
confronted with section III, which pro-
vides that the separate property of the
wife is not liable for the debts of her
husband. Nor can 1t be said that this
section creates a debt in favor of the
husband on account of which he might
maintain an action at law. AN action
of debt is the general remedy for the
recovery of all sums certain, whether
the legal liability arise for
contract or be created by stat
ute" Estate of California VS.. Poulterer,
16 Cal. 515.) 1t will be observed that
the section of the civil code upon which
this proceeding is based fixes no sum
certain. There is no debt created upon
which an action at law could be main
tanned, and, in my opinion, unless this
proceeding can be maintained, 1t must
be admitted that a clear right is given
by statute, for which there would be no
remedy.
But the rule is. wherever the power is
given by statute everything necessary to
make it effectual or requisite to at
tain the end, is implied; and that where
the law requires a thing to be done it
authorizes the performances of whatever
mands." (Sedgwick on Statutes and Con-
stitutioral Law, 91-92)
THE MONTHLY STIPEND
''An order will be entered directing
defendant to pay to plaintiff, on the Sth
day of February, 1897, the sum of $24, and
the further sum of $50 as attorneys fees
to plaintiffs counsel In these proceed
ings; and that on the first Monday Of
each succeeding month until the further
order of the court, she pay to plaintiff
the further sum of S24 for his support
ard maintenance"