47 Me. 217 | Me. | 1859
The opinion of the Court was drawn up by
Rebecca Warren, one of the defendants, denies her liability on the note in suit, because, at the time she signed her name thereto, she was the lawful wife of Samuel S. Warren, then in full life. And the question before the Court is whether, under the facts reported in the case, the plaintiff is entitled to recover against her. In Corbett's case, as stated in 1 Dane’s Abr., 357, the learned author, “Lord Mansfield, and the Court, held the general
That a suit may be maintained against a woman who has a husband living, as if she were a feme sole, has long been settled in England and in this country. But eminent English Judges have differed in relation to the principle, which, on being applied to cases, would render her liable or otherwise. It was not doubted, under the jurisprudence of that country, that she might be sued alone on her contracts, or for her torts, when her husband was banished; when he was an alien enemy; was transported, though only for seven years; or when there was a judicial divorce from bed and board.
It has been supposed, by those who most strongly resist the liability of the wife while her husband is living, that it is upon the ground that he is civilly dead. Marshall v. Rutter, 8 T. R., 545. On the other hand, Lord Mansfield and others have held the wife liable on her contracts, in cases in some respects similar to those in which other Judges have treated them as exempted, on the ground of a separation, between the husband and wife, the agreement to live separate, and a separate maintenance in favor of the latter. Corbett v. Poelnitz, 1 T. R., 5. The test of the wife’s liability by the former class of jurists, has been pronounced unsound,'as the rule cannot be universally true; as, for example, it cannot with propriety be said that the husband is civilly dead, when his wife cannot be married again; when he is an alien enemy; has been transported and in exile; when no administration of his estate can be granted, no descent to his children ; and no dower can be assigned in it. 1 Dane’s Abr.,
In the case of Ringstead v. Lady Lanesborough, 23 Geo. 3, B. R., — -Cooke’s Bank. Laws, 24, decided in 1783, which was assumpsit for goods sold and delivered; upon the plea of coverture, and replication that she lived separate from her husband at the time of making the promise, and that she had a large and sufficient maintenance secured to her by deed; and. a special demurrer to this replication; the replication was adjudged good, and the plaintiff had judgment.
In Barwell v. Brooks, 24 Geo. 3, B. R.,— Cooke’s Bank. Laws, 28, decided the next year, which was also assumpsit against the wife, on her separate promise, for goods delivered to her, she was held liable though her husband resided in England.
The case of Corbett v. Poelnitz, before cited, was one which, was presented to the Court soon after the two last cited, and the result was similar, they being regarded as authority and cited in the case by Buller, J.
In the year 1800, the case of Marshall v. Rutter, before referred to, was decided by Lord Kenton and his associates, in which decision Lord Chief Justice Etre, who heard the first argument, concurred. After the decisions upon this question, in Lord Mansfield’s time, the law as to the wife’s liability seemed to have been altered, but, upon the announcement of the judgment in Marshall v. Rutter, the old law was thought to be restored; and the former decisions have been treated as overruled by the latter case. Gregory v. Paul, Ex'r, 15 Mass., 31.
It is not understood that, in English Courts, the decision of Marshall v. Rutter has been overruled, as applied to the facts of the case, but is treated as being in harmony with previous- decisions, though the exact principle on which they respectively rest has not been always distinctly enunciated. Rut it is believed that, in no case, in that country, has the test of Lawrence, J., before quoted, that the wife cannot be sued alone, because her husband had not renounced his marital rights to her person, society, service, &c., been denied to be true.
The separate maintenance secured to the wife effectually, upon a separation, and other facts in cases referred to, may be regarded as evidence of a renunciation by the husband of his marital rights. Rut, when this effectual renunciation has been fully established, it is, believed that no case can there be found, denying to the wife the power to bind herself by her contracts, and making her liable to be sued thereon.
In this country, the question has been examined by able jurists and Courts, and although the decisions have not always been in all respects consistent with each other, but still the great principle referred to has not been repudiated, expressly.
Judge Reeve, in his work on Domestic Relations, holds the wife, while her husband is living, suable merely on the
In the case of Gregory v. Paul, 15 Mass., 31, the English authorities were fully examined, and, it appearing that the husband deserted his wife in a foreign country, and she maintained herself, and for five years had lived in Massachusetts, the husband being a foreigner, and never having been in the United States, it was held, that she was competent to sue, and be sued as a feme sole, and her release would be a valid discharge of any judgment she might recover, upon the ground that the case fell within the spirit of the rule of the common law, founded in reason and necessity, in case of exile and abjuration.
The case of Abbott v. Bailey, 6 Pick., 89, was an action of trover, brought for a note running to the plaintiff, a woman having a husband living. The defendant pleaded in abatement, that the plaintiff was under coverture of Peter Abbott, who was then living in New Hampshire, under proper pleadings, which resulted in an issue of law on demurrer; it appeared that the plaintiff was driven from her husband, and her home, more than twenty years before. She had all the time acted as a feme sole, and been treated as such by those with whom she had had dealings. The husband had considered the connection as at an end, and had married, and was then living with another woman. And it was admitted that this separation was caused by the cruelty and ill usage of the husband. . He obliged the plaintiff to live separately from him, and to obtain her own living, and she had sustained herself in the State where she resided. According to the principle of Gregory v. Paul, her action was maintained. In both these cases, the facts showed that the husband had renounced his marital relations.
The case of Gregory v. Pierce, 4 Met., 478, was a suit upon a promissory note signed by the defendant, a married woman, and submitted on an agreed statement of facts. She
By the statutes of this State, married women enjoy rights entirely unknown to the common law, touching the ability to hold and dispose of property independent of their husbands, and also to enforce remedies, when their property is taken away or injured, without joining them in suits, which they may institute. But it is not perceived that the case now before us is in any manner affected by those statutes, and further consideration thereof is unnecessary.
It appears, from the evidence in the case, that many years ago, the defendant, Rebecca Warren, was married to Samuel S. Warren, in the town of Montville, and immediately moved to Clinton, both towns in this State, and, after some time, they moved to Albion, in this State, and cohabited together as man
The general rule being, that a married woman cannot make a binding contract, or be subject to a suit, the plaintiff must show, by sufficient proof, that she falls within the exception.
The fact of the desertion of the husband from his wife, according to the ordinary meaning of the term has not taken place. The desertion was nothing more than the separation, which took place under an agreement between them. It was not a desertion, under the statute of 1841, c. 80, § 2, as would authorize, under that provision, a dissolution of the bonds of matrimony. Nothing, is proved, showing that the separation was designed to be perpetual, farther than its continuance since it took place.
No separate maintenance was provided by the husband, much less, that- it was sufficient, or made effectual permanently, by any contract which could be regarded as binding;' the separation being “by mutual consent,” and no intervention of trustee, or other contracting parties. The husband and the .wife cannot be regarded as under any legal prohibition