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Rep. 402, where, in an action by husband and wife for wounding the wife, Lord Holt allowed what the wife said immediately upon the hurt received, and before she had time to devise anything to her own advantage, to be given in evidence as a part of the res gestae. 1

These cases may be considered as exceptions to the general rule of law, and which, as a general rule, ought to be steadily and firmly adhered to, for it has a solid foundation in public policy. (e)

In civil suits, where the wife cannot have the property demanded, either solely to herself or jointly with her husband, or where the wife cannot maintain an action for the same cause if she survive her husband, the husband must sue alone. (f) In all other cases in which this rule does not apply, they must be joined in the suit; and where the husband is * sued * 181 for the debts of the wife before coverture, the action must be joint against husband and wife, and she may be charged in execution with her husband ;1 though if she be in custody on mesne process only, she will be discharged from custody on motion. (a)? The husband may also be bound to keep the peace as

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(e) The policy of the rule of the English law, that husband and wife cannot be witnesses for or against each other, is much questioned in Am. Jur. No. 30, p. 374. I remain, however, decidedly against the abolition of the rule.?

(f) If a note be given to the husband and wife, on a sale of her property, and she survive him, she, and not his administrator, must indorse it; for the interest being joint, it went, of course, to the survivor. Draper v. Jackson, 16 Mass. 480. Executors of Schoonmaker v. Elmendorf, 10 Johns. 49. Richardson v. Daggett, 4 Vermont, 336.

(a) Anon. 3 Wils. 124. The wife will be discharged from execution in such a case,

1 The dying declarations of the wife are admissible against the husband on the trial of his indictment for her murder. People 1. Grunzig, 1 Parker Cr. R. 299.

? See the Act 14 & 14 Vict. ch. 99. In construction of this Act, it had been held, that, neither husband nor wife was by its provisions competent to give evidence for or against the other in civil cases. Stapleton v. Crost, 10 E. L. & Eq. 455. Barbat v. Allen, Id. 596. Alcock v. Alcock, 12 Id. 354. But the Evidence Amendment Act of 1853, 16 & 17 Vict. ch. 83, renders husbands and wives competent and compellable witnesses for each other, except in criminal cases, and in cases of adultery; but neither shall be compelled to disclose communications made during the marriage.

i If a judgment be rendered against husband and wife, the wife may be arrested for costs. Newton v. Rowe, 9 Ad. & El. N. S. 948.

2 Where a woman was sued before marriage, and judgment taken against her after marriage in her inaiden name, and she was taken into custody under a ca. 8a., the court refused to discharge her, though she had no separate property. The practice of discharging married women under similar circumstances, was declared to stand on no very satisfactory foundation. Beynon v. Jones, 15 Mees. & W. 566. See 3 Cowen, 339; 2 Id. 581.

against his wife; and for any unreasonable and improper confine ment by him, she may be entitled to relief upon habeas corpus. (6) But as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority and control over her person, and he may even put gentle restraints upon her liberty, if her conduct be such as to require it, unless he renounces that control by articles of separation, or it be taken from him by a qualified divorce. (c) The husband is the best judge of the wants of the family, and the means of supplying them; and if he shifts his domicil, the wife is bound to follow him wherever he chooses to go. (d) If a woman marries, pend ing a suit against her, the plaintiff may proceed to judgment and execution against her alone, without joining the husband ;(e) but for any cause of action, either on contract or for tort, arising during coverture, the husband only can be taken in execution.($) These provisions in favor of the wife are becoming of less consequence with us every year, inasmuch as imprisonment for

debt is undergoing constant relaxation; and by statute in * 182 * several of the states, no female can be imprisoned upon

any execution for debt. (a)?

if it appears that she has no separate property to pay the debt. Sparkes v. Bell, 8 Barn. & Cress. 1. The application for her discharge has been held to rest in the discretion of the court. Chalk v. Deacon, 6 J. B. Moore, 128.3 The husband and wife may be jointly guilty of a tortious conversion of a chattel, and may be sued jointly, provided the conversion be charged to be to the use of the husband. 2 Saund. 47, i. Williams's notes.

(6) In the matter of William P. Brown, on habeas corpus, before the circuit judge or the first judicial circuit in New York, Feb. 1843, it was ruled that a wife may be kidnapped by the husband within the provisions of the Revised Statutes, vol. ii. p. 664, and he and his accessories be held to answer for the crime.

(c) Bridgman Ch. J., in Manby v. Scott, Bridg. Rep. 233. Rex v. Mead, i Burr. 542. Lister's case, 8 Mod. 22.

(d) Chretien v. Her Husband, 17 Martin (Louis.) 60.
(e) Doyley v. White Cro. Jac. 323. Cooper v. Hunchin, 4 East, 521.
(f) Anon. Cro. C. 513. 3 Blackst. Com. 414.
(a) See infra, p. 399, n. b.

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3 Edwards v. Martyn, 23 E. L. & Eq. 83.

By recent statutes in New York, (Laws of 1847, ch. 450, p. 575, Laws of 1849, ch. 256, p. 388,) in case of the death of a person through the negligence of another, an action is given to his personal representatives, and the damages are to be estimated with reference to the pecuniary injury resulting to the wife and next of kin, but cannot exceed five thousand dollars. These actions are to be sustained by such proof of negligence as would have been necessary if, the injury not resulting in death, the action had been brought by the party injured.

I trust I need not apologize for having dwelt so long upon the consideration of this most interesting of the domestic relations. The law concerning husband and wife has always made a very prominent and extensive article in the codes of civilized nations. It occupies a large title in the English equity jurisprudence. So extensive have become the trusts growing out. of marriage settlements, that a lawyer of very great experience (6) considered that half the property of England was vested in nominal owners, and it had become difficult to ascertain whether third persons were safe in dealing for fiduciary property with the trustee, without the concurrence of the beneficial owner. There are no regulations on

(b) Mr. Butler.

It must appear that negligence on the part of the person injured did not contribute to the production of the injury. In determining this question, as well as that of negligence on the part of the defendant, all the presumptions of fact arising out of the circumstances in proof, as well as the evidence directly bearing on the question of negligence by either party are to be considered, both by the court on a motion for a non-suit, and by the jury in deciding the issue. The plaintiff must upon the whole issue satisty the tribunal, that every fact necessary to make out his legal case exists. Button v. Hudson R. R. 18 N. Y. 248. Steves o. Oswego and Syr. R. R. 18 N. Y. 422. Curtis v. Rochester and Syr. L. R. 18 N. Y. 534. Johnson v. Hudson R. R. 20 N. Y. 66. Wilds v. Hudson R. R. 24 N. Y. 430. Whether death has been caused instantaneously, or only consequentially, is not material, under these statutes. Brown v. Buffalo and State R. R. 22 N. Y. 191. The acts do not extend, to give a remedy, on deaths not occasioned in the state. Whitford v. Panama R. Co. 23 N. Y. 465.

Although the husband, as personal representative of his deceased wife, may maintain an action for her death, his loss of her services or society cannot be considered in estimating the damages. The statutes do not embrace pecuniary injury to the husband resulting from the wife's death. Dickins v. New York Central R. 23 N. Y. 158. Tilley v. Hudson River R. 24 N. Y. 471.

The rules which govern the estimate of pecuniary damages in England in actions on a similar statute, (9 & 10 Vic. ch. 93,) are the same as prevail in New York. Duckworth v. Johnson, 4 Hurls. & Norm. 653. And see Blenkiron v. Great Cent. Gas Co. 2 Fost. & Fin. 437.

In Carey . The Berkshire R. R. Co. 1 Cush. 475, it was held that no such action could be maintained at common law. An Act of Maryland (Laws of 1852, ch. 299) gives a similar right of action to a surviving wife, parent, husband, or child. Damages are confined to injuries for which a pecuniary estimate can be made. The mental sufferings of the survivors are not subjects for damages. Blake v. Midland Company, 10 Eng. L. & Eq. 437. S. C. 18 Ad. & Ell. N. S. 93. Canning v. Williamstown, 1 Cush. 451.

Under a statute which gives a remedy to those who receive any injury to their persons through defects in the highway, a husband cannot recover in a several action for medical and other expenses incurred in consequence of such an injury to the wife, nor for the loss of her service. Harwood v. Lowell, 4 Cush. 310. Starbird v. Frankfort, 35 Maine, 89. It is held in Maine, that a reasonable construction of such a statute will allow these damages to be recovered in the action brought by the husband and wife for the personal injury. Sanford v. Augusta, 32 Maine, 536. See Fuller v. Naugatuck. R. R. Co. 21 Conn. 557, where allegations of expense and loss of service were construed to be descriptive of the extent of the injury, and recoverable in the joint action. VOL. II.

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any other branch of the law, which affect so many minute interests, and interfere so deeply with the prosperity, the honor, and happiness of private life. As evidence of the immense importance which in every age has been attached to this subject, we may refer to the Roman law, where this title occupies two entire books of the Pandects, (c) and the better part of the fifth book of the Code. Among the modern civilians, Dr. Taylor devotes upwards of one sixth part of his whole work on the Elements of the Civil Law to the article of marriage; and Heineccius, in his voluminous works, pours a flood of various and profound learning on the subject of the conjugal relations. (d) Pothier, who has examined, in thirty-one volumes, the whole immense subject of the municipal law of France, which has its foundations principally laid upon the civil law, devotes six entire volumes to the law of the matrimonial state. When we reflect on the labors of those great masters in jurisprudence, and compare them with what is here written, a consciousness arises of the great imperfection of this humble view of the subject; and I console myself with the hope,

that I may have been able to point out at least the paths * 183 of inquiry to the student, and to stimulate his * exertions

to become better acquainted with this very comprehensive and most interesting head of domestic polity.

There is a marked difference between the provisions of the common law and the civil law, in respect to the rights of property belonging to the matrimonial parties. Our law concerning marriage settlements appears, to us at least, to be quite simple and easy to be digested, when compared with the complicated regulations of the community or partnership system between husband and wife, which prevails in many parts of Europe, as France, Spain, and Holland, and also in the state of Louisiana. This system was carried by the colonists of those European powers into their colonies, such as Ceylon, Mauritius, the Cape of Good Hope, Guiana, Demarara, Canada, and Louisiana. Many of the regulations concerning the matrimonial union, though not the community system, are founded on the Roman law, which Van Leuwen,

(c) Lib. 23 and 24.

(d) Vide Opera Heinecc. tom. ii. De marito Tutore et Curatore Uxoris legitimo, and tom. vii. Commentarius ad legem Juliam et Papiam Poppæam.

in his Commentaries, terms the common law of nations. (a) I do not allude to the * earlier laws of the Roman republic, * 184 by which the husband was invested with the plenitude of

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(a) In Louisiana, according to their new Civil Code, as amended and promulgated in 1824, Art. 2312, 2369, 2370,) the partnership or community of acquets or gains (communauté des biens) arising during coverture, exists by law in every marriage contract in the state, where there is no stipulation to the contrary. This was a legal consequence of marriage, under the Spanish law. The doctrine of the community of acquets and gains was unknown to the Roman law, but it is common to the greater number of the European Gations, and is supposed to have taken its rise with the Germans, and may be founded on the presumption that the wife, by her industry and care, contributes, equally with her husband, to the acquisition of property. All the property left at the death of either party, is presumed to constitute the community of acquets and gains, and this presumption stands good antil destroyed by proof to the contrary. Toullier's Droit Civil Français, tom. xii. art. 72. 17 Martin (Louis.) 258. Christy, Dig. tit. Marriage. Cole's Wife v. His Heirs, 19 Martin (Louis.) 41. But the parties may modify or limit this partnership, or agree that it shall not exist. They may regulate their matrimonial agreements as they please, provided the regulations be not contrary to good morals, and be conformable to certain prescribed modifications. (Art. 2305.) Parties can, by an express matrimonial contract, subject themselves to the communio bonorum as to personal property, or adopt the law of any country in respect thereof, and the courts will give effect to it, unless prohibited by a positive law, either of the matrimonial domicil or of the locus rei sitæ. Vide infra, p. 459, and note b, Ibid. In the case of married persons removing into the state from another state, or from foreign countries, their subsequently acquired property is subjected to the community of acquets. (Art. 2370.) This very point was decided at New Orleans, in Gale v. Davis, 4 Martin (Louis.) 645, and in the case of Saul v. His Creditors, 17 Martin (Louis.) 569. The Supreme Court of Louisiana, in the able opinion pronounced by Judge Porter, on behalf of the court in the latter case, held, that though the marriage was contracted in a state governed by the English common law, yet if the parties removed into Louisiana, and there acquired property, such property, on the dissolution of the marriage in that state, by the death of the wife, would be regulated by the law of Louisiana. Consequently, a community of acquets and gains did exist between the married parties, from the time of their removal into the state, and the property they acquired after their removal became common, and was to be equally divided between them, on the principles of partnership. The decision was founded on an ancient Spanish statute, in the Partidas, which governed at New Orleans when it was a Spanish colony; and it is also the law of the Civil Code of Louisiana, as already mentioned. So, property acquired before the removal from the matrimonial domicil is governed by the law of that domicil, and if married persons move out of the country where the community of acquets and gains exist, into one where it does not, their future acquisitions are governed by the law of their new domicil. Porter J., 4 Louisiana, 193. McCollum v. Smith, Meigs (Tenn.) 342. Kneeland v. Ensley, Ibid. 620. The principles declared in the case of Saul v. His Creditors, are essentially re-declared in the case of Packwood v. Packwood, 9 Rob. (Louis.) 438. The community of acquets and gains applies to all the property, real and personal, acquired while the parties were domiciled in Louisiana, though not to property previously acquired during their matrimonial domicil in another state, nor to property subsequently acquired after a change of domicil from Louisiana to another state. Saul v. His Creditors, supra. This was the doctrine in the Partidas ; but it seems, according to the jurists in France and Holland, that the

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