
    James D. Coolidge and wife v. Mary E. Parris.
    1. In an action against husband and wife for an assault and battery committed by her, she cannot control the management of the defense, or a compromise of the action, against the wishes of her husband; and if he confess judgment for himself and wife, the court will not interfere at her instance, on the ground that she did not consent, or that she objects to the compromise.
    2. Section 29 of the code, which provides that if the husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also, is not applicable to actions lilte this, in which the trial and judgment must be joint, and no right of the wife separate from the husband can be passed upon, or recognized in the final order of judgment or the court.
    In Error to the District Court of Lake county.
    Mary E. Parris sued Coolidge and wife, in the court of common pleas, for an assault and battery committed by the wife, and recovered a judgment against them for $3100, and they appealed the case to the district court. Before trial in the district court, the husband, with the advice of the attorneys he had employed to conduct the defense for himself and wife, and with the advice of the judge who presided at the trial in the common pleas, settled the case for $2,500. The wife, by counsel, objected to the validity of this settlement, and the entry of judgment thereon, as against her, insisting ‘that the same was made without her knowledge or consent.
    Some testimony was offered that she had, in fact, given her assent to the settlement, but the district court found that the evidence failed to show this, but decided that the husband had the right, as husband, to bind the wife by the settlement, without her assent, and that the same did bind her; and that, in the absence of fraud or unfairness in making the settlement, it precluded her from making any further defense; and thereupon judgment was entered against both husband and wife for the $2,500; and to the entering of judgment against her, the wife, by counsel, excepted. During the term at which the judgment was entered, the husband expressed himself satisfied with the settlement, and desired it to stand.
    Coolidge and wife now seek to reverse the judgment of the district court, and assign for error the holding of the court as to the effect of the settlement against the wife.
    
      Backus § Noble, for plaintiffs in error. No argument for them has come to the hands of the Reporter.
    
      R. F. Ranney, for defendant in error.
    1. The husband had full power to settle for both himself and wife. 1 Bla. Com. 442; Benjamin and wife v. Bartlett, 3 Missouri Rep. 86; Evans v. Mylert, 19 Penn. St. Rep. 402; McCullough v. Wilson, 21 Penn. St. Rep. 436; King v. McCampbell, 6 Blackf. Rep. 435; Ferguson v. Smith, 2 Johns. Ch. Rep. 139; Leavitt v. Cruger, 1 Paige 422; 2 Bac. Abr. 64; Watson on Arb. 43; 9 L. L. 22.
    This chain of authority most abundantly establishes the position, that the husband and wife are, in law, one person, and that the husband is the controlling head of that unity; that, in virtue of the marital power, he has the undoubted right to settle, before litigation, all claims against, himsA.l-f and wife, or to refer them to arbitration; that when sued, process need only be served upon him, and that whether process is served or not, he has the right to constitute an attorney to appear for, and confess a judgment against, both himself and wife. There is but one limit to this right, and that occurs when the sole object of the suit is to appropriate her separate property, and he is a mere nominal party. It will be seen that these principles have been constantly applied in cases in every way more doubtful than the present; indeed, in cases where the result of the judgment was to appropriate her real estate to the payment of the husband’s debt. While, in cases like this, the liability rests upon the husband, the judgment is against him, and his property is taken to satisfy it. He alone can constitute the attorney to defend; and who shall direct that attorney in conducting the business, if not him? His interest in the result certainly cannot be less than hers. If she, under the dictation of ill-advised intermeddlers, is entitled to reverse the order of nature and of law, and take from him the power, he must submit to whatever she directs; for they cannot be separated. Endless confusion would result. If she desires to challenge a juror, and he not, or to object to evidence and he not, her will must prevail; or if she desires ruinous litigation, instead of a judicious and honest compromise, he must follow her to the end of the chapter. Tied to her apron strings, he must follow her as submissively as her poodle dog. I cannot think that either law or sense requires this to be done. It seems to me that the law has very wisely invested him with the right, as the head of the family, to settle as well as to litigate, to make peace rather than continue the war; and that this right cannot be restricted or controlled, unless a case is made which shows that he is exercising the power in bad faith, or in prejudice to the interests of the wife.
    The 29th section of the code has been referred to as having some bearing upon this subject. I think this a clear mistake. To give application to that section, the husband and wife must have separate rights — “her right” and “his right” being in controversy. It properly applies in all cases where property, real or personal, in which each has a separate interest, is the object of the action, and cannot, with any reason, be extended further, and least of all, to the joint and inseparable liability for her torts. The husband did not neglect to defend, nor did she apply to defend for him. He defended as long as there was any use in it, and then terminated the litigation by his agreement. He stood by it to the end, and ended it by the exercise of his marital right, as he desired.
    2. But should the judgment be reversed as to her, it ought not to be as to him. Preble County Bank v. Russell, 1 Ohio St. Rep. 316; Wells v. Martin, 1 Ohio St. Rep. 388; Tabler v. Wiseman, 2 Ohio St. Rep. 208; Lessee of Merritt v. Horne, 5 Ohio St. Rep. 318; 1 Chit. Pl. 105; Hasbrouck v. Weaver, 10 Johns. Rep. 247.
   J. R. Swan, C. J.

The husband and wife are deemed, in many respects, one person in law. When sued jointly, and for a cause of action •which cannot be maintained except by showing a joint liability, and in which they must jointly plead, and one’ joint judgment must be rendered against them, there is necessarily a unity which cannot be severed. In such case, if any separate control over the action can be recognized in the wife, it can only be done by making the rights and power of the husband subservient to her. If the wife may control-the conduct of the action or defense in one way, and the husband may also control the action or defense in another and different way, it must bo done by permitting them to plead separately, and to sever in the trial. This would do, if the cause of action were such that separate and different judgments could be rendered against them. But in an action like the one before us, the judgment must be single and joint; and whatever might be the result of a separate defense, made by the wife, contrary to the wishes of the husband, he would be ultimately liable, jointly with her, for the costs, expenses and judgment against her. After all, it is a question, whether the wife shall control the husband, or the husband shall control the wife, where, there is a unity of interest, and they differ. We are not yet prepared to depart from the old rule, which makes the husband the head of the wife. And such is the common law. Hence when sued jointly, service of process, at common law, was sufficient on the husband alone; and he could appear and confess judgment for both. Evans v. Mylert, 19 Penn. St. Rep. 402; Benjamin and wife v. Bartlett, 8 Missouri Rep. 86.

Whether, when the husband alone confesses judgment, or the like, against himself and wife, the separate property of the wife can be taken in execution, is another question.

It is insisted that the 29th section of the code is applicable to the present case.

It provides: “ If a husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also.”

The right of the wife mentioned in the code, is undoubtedly a right involved in the controversy, and its provisions are applicable to' equity cases in which the separate rights of the wife are by decrees recognized and passed upon as distinct from the rights of the husband. Her inchoate right of dower in premises mortgaged by her and husband; her interests and rights in her separate property, and in property which came to the husband by her, are recognized and frequently passed upon by decree; and, under the code, she may, in such cases, defend her own right.

But when the action, as in the case now before us, involves no separate right of the wife, and in which no order or judgment can be rendered except a joint one, affecting both jointly, the provision of the code cannot be applied. Her right in this action, and the right of her husband, are inseparable; and if they separated in the defense the court could not, as has been before said, proceed to judgment except jointly against both.

We are of the opinion that there is no error in the proceedings or judgment of the court below.

Judgment affirmed.

Brinkerhoee, Scott, Sutliee and Peck, JJ., concurred.  