Opinion of the Court.

during such time as she may choose to perform labor on her sole and separate account. By the common law, the husband was bound to support his wife, and therefore was entitled to her services. By the statutes, which modified the common law, his right to her services is abridged, though his obligation to support her remains. It is urged in argument that she may contract to devote her whole time to work which is to be performed away from his home, and which perhaps may require her absence for ten years, thus amounting to a desertion, which would be in violation of her matrimonial duties. But the possibility of extreme cases should not conclusively determine the construction of statutes, nor do we now decide whether the statutes would permit such action on her part against his consent. To a certain limited extent, as, for example, in fixing the domicil, and in being responsible under ordinary circumstances for its orderly management, the husband is still the head of the family. But in some particulars a married woman is now independent of her husband's control. In the case now before us, the impairment of the plaintiff's capacity to labor was an element which might be considered by the jury in the estimate of her damages. In respect of this, as with other elements of damages, no close approximation to mathematical accuracy can in all cases be reached. In some instances, the right of a married woman to perform labor for others may have no money value. How much, if anything, should be allowed on this ground, must be left to the jury to determine, under the circumstances of each particular case."

Counsel for plaintiff in error earnestly urges, however, that the Arkansas statute was adopted in 1873, and was nearly identical with an act of New York of 1860; that a different construction had been put on that act by the courts of New York; and that this construction should be followed in the present instance. But the statutes of Massachusetts, in the particulars material here, were in force long prior to 1873, and we are not advised that the statutes of Arkansas were transcribed from the statute book of New York rather than from that of some other State. We do not regard this as a case for the adoption of a construction by presumption. Nor need it be conceded that the deci

VOL. CLXXXI-5

Opinion of the Court.

sions of the courts of New York are opposed to the rulings of the Circuit Court on the facts of this case.

In Filer v. New York Central Railroad Company, 49 N. Y. 47, the decision was that unless the wife was actually engaged in some business or service in which she would, but for the injury, have earned something for her separate benefit, and which she had lost by reason of the injury, she had sustained no consequential damages.

In Brooks v. Schwerin, 54 N. Y. 443, there was evidence that the plaintiff before the injury took care of her family and, also, that she was working out by the day and earning ten shillings a day. To proof of these facts defendant objected on the ground that her time and services belonged to her husband, and could not form ground of damages in the action. The court overruled the objection and defendant excepted. The defendant also excepted to the refusal of the court to charge as requested by him, "that the plaintiff cannot recover for the value of her time and services while she was disabled; such services and time belong, in law, to the husband." It was held that the rulings of the court were proper, and Earl, C., said:

"If the defendant had requested the court to charge that the plaintiff could not recover for the loss of services to her husband in his household in the discharge of her domestic duties, the request could not properly have been refused. But the request was broader, and proceeded upon the idea that all her time and services belonged to her husband, and that she could not recover anything for the value of her time, or for the loss of any service while she was disabled. She was earning in an humble capacity ten shillings a day, and so far as she was disabled to earn this sum, the loss was hers, and the jury had the right to take it into account in estimating her damages.'

In Blaechinska v. Howard Mission, 130 N. Y. 497, it was ruled that recovery could not be had by a married woman, in an action to recover damages for injuries sustained through defendant's negligence, for loss of her services in the discharge of household duties, and of other services rendered by her to her husband, and Brooks v. Schwerin was distinguished, because in

Opinion of the Court.

that case the wife worked for a stranger, while in this she worked for her husband.

In the present case the evidence tended to show that before the plaintiff was injured she had been engaged for some years in business on her own account, supporting herself and her children, which business had been discontinued for a few months, was renewed, and then given up on account of temporary illness, from which she had in substance recovered, when the injuries sustained incapacitated her from further work.

Under these circumstances we think the Circuit Court did not err in refusing to charge that plaintiff could not recover for diminished capacity to labor because there was "no evidence showing any capacity to labor or earn money at and just before she was injured." To pin the evidence of capacity down to the very point of time when the injury was inflicted upon her was refining too much on the principle involved.

This loss of ability to make earnings outside the discharge of household duties and irrespective of her husband was under the statutes of Arkansas her loss, and not her husband's, and the mere fact that at the moment of the injury she happened to be out of business should not deprive her of the benefit of the rule which would have been otherwise applicable, according to Filer v. Railroad Company and Brooks v. Schwerin.

We have assumed, as the jury presumably did, that the earning capacity referred to in the charge had relation to earnings on plaintiff's own account, and if defendant wished this to have been made more explicit, it should have so requested.

The third paragraph of the seventh instruction refused was, "And her lessened capacity to perform household duties cannot be the basis of plaintiff's recovery." But this was not asked as an independent proposition, and the exception was saved to the refusal to give the entire instruction, which as a whole was erroneous and properly refused.

We find no reversible error, and the judgment is

Affirmed.

Statement of the Case.

BROWNE v. CHAVEZ.

BROWNE v. CHAVEZ.

ERROR TO AND APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

Nos. 165 and 247. Argued March 6, 1901.-Decided April 8, 1901.

While a scire facias, for the purpose of obtaining execution, is ordinarily a judicial writ to continue the effect of a former judgment, yet it is in the nature of an action, and is treated as such in the statutes of New Mexico. After a judgment is barred under those statutes, the writ of scire facias, giving a new right and avoiding the statute, cannot be maintained.

THIS case was brought here both by writ of error and appeal. As there was no trial by jury and the issues were only questions of law determined by the trial court on demurrer, the writ of error is dismissed, and the cause considered on the appeal.

On the 7th of October, 1885, the firm of Browne, Manzanares & Company, composed of L. P. Browne, since deceased, and F. A. Manzanares, recovered judgment against Francisco Chavez, 2d, in the District Court of Bernalillo County, for the sum of $4170, damages and costs. No action was taken in respect of this judgment, and no execution was issued upon it, so far as this record discloses. September 30, 1895, a writ of scire facias was sued out and service had. The defendant filed two pleas; the first suggesting the death of one of the plaintiffs since the rendition of the judgment, which plea was abandoned; the second, the plea of the statute of limitations, to which a demurrer was interposed by plaintiffs, which was overruled by the court. Plaintiffs thereupon refused to plead further and stood by their demurrer, whereupon the court rendered judgment dismissing the writ.

The statutes referred to are as follows:

An act of January 23, 1880, compiled in 1884 as sections 1860 and 1861, as follows:

"SEC. 1860. The following suits or actions may be brought within the time hereinafter limited, respectively, after their

Statement of the Case.

causes accrue, and not afterwards, except when otherwise specially provided.

"SEC. 1861. Actions upon any judgment of any court of record of any State or Territory of the United States, or the Federal courts of the United States, within fifteen years."

An act of February 10, 1887, compiled in 1897 as sections 3085-6, as follows:

"SEC. 3085. That hereafter it shall not be necessary to bring proceedings in any court to revive a judgment having been already obtained before a court of competent jurisdiction in this Territory, except in cases where such judgment had been rendered for a period of five years or more next preceding the issue of final process for the enforcement of the same.

"SEC. 3086. An execution may issue at any time, on behalf of any one interested in such judgment referred to in the above section, within five years after the rendition thereof, and without the necessity of bringing an action to revive the same." An act of February 24, 1891, as follows:

"SECTION 1. That so much of the laws of the Territory of New Mexico as is compiled as section 1861 of the Compiled Laws of the Territory of New Mexico of 1884 be and the same is hereby repealed, and the following be and is hereby substituted therefor:

"SEC. 2(1861). Actions founded upon any judgment of any court of the Territory of New Mexico may be brought within seven years from and after the rendition of such judgment, and not afterward, and actions founded upon any judgment of any court of record of any other Territory or State of the United States, or of the Federal courts, may be brought within seven years from and after the rendition of such judgment, and not afterward: Provided, That actions may be brought upon any existing judgment which, but for this proviso, would be barred within one year from and after the passage of this act, and not afterward; and all actions upon such judgments not commenced within the time limited by this act shall be forever barred.'"

This section was brought forward as section 2914 of the Compiled Laws of 1897.