5 Mo. 403 | Mo. | 1838
delivered the opinion of the
Palmer and: wife brought an action of detinue against' Haile for several slaves. The,defendant, Haile, pleaded non detinet? and several other pleas.- A trial was had in •the circuit court of St. Francois county, and verdict was given against Haile in gross for the value of the slaves;- and also for damages. There are' two counts in the declaration: the first count alleges that Palmer and wife complain that the wife, before the'marriage, was possessed of the slaves, and lost them; and that Haile found them, and detained them against the wife before the mar--riage, and against both since the marriage.
The second count goes on the possession of the"husband-and wife since the marriage, and it alleges the de-tainer against both. On- the trial, the plaintiff offered in-evidence a sworn- copy of a marriage register and certifi--cate of a-parish judge of Louisiana;; and also a- sworn copy of an inventory, and also a' like copy of the registry of a will made in Louisiana, and the appointment of the wife as executrix under the will.-
The defendant objected to the reception- of the testimony,-on the ground that these papers-were not’proved' to be public documents. The court overruled the object tion-, and the papers were read in evidence. The defendant moved for a new trial and in arrest of judgment;: these motions were overruled. The motion in arrest of judgment rests on the" ground thar the two counts con-tara causes of action which cannot be joined. The errors assigned-, and all the points made^are'clearly embra--ced in the two foregoing points.
I Will proceed: tó consider the question, whether the court erred iri receiving the sworn copies.- The obiec-Iron made to this evidence is,-that it does not appear,-by sufficient evidence, whether the'originals, of- which- these papers are copies, by the laws-of Louisiana; are to be made matters of record at all,- This objection* appears to me to’ be well founded. One issue' to be was,-whether Fálmer and5 wife were ever marriedi- The proof adduced'is this sworn'copy; but whether Or certificate, by. the' laws of Louisiana, cari have any legal existence, has riot been shown ; and the rule of our la-W is- that, 'Where1 the law requires a- paper to- be recofded-
The next question is, ought the judgment to have been arrested 1 The first count goes on the right of the wife' before marriage, and joins the husband with the wife. Mr. Scott, of counsel for the plaintiff' in error, contends that the husband in this case should sue alone, and prove this, he cites and relies on the following authorities: — 1 Chit. Plead. 60-1, 54, 119; 1 Bac. 502; 2 Bac. Abr. title “Detinue,” 317; Bul. N. P. 50; H. Black. Rep. 108, and severrl other authorities of like land. These are wh’ch establish the doctrine that, in detinue for the goods of the wife, when th'e possession and find-iDg was in the defendant before marriage and continued after the marriage, the husband alone can bring detinue; and the reason given for the thing is, that the law transfers the right, or (to use the exact expression of the books) transfers the property to the husband.
Although the cases are numerous; I feel bound to say I have not the least confidence in the legal cox-rectncss of the doctrine. The special cases are contrary to the general rule. The general rule is this, that in all cases where the meritorious cause of action existed in the wife before the marriage, and the marriage should give the thing to the husband when recovered, the wife must be joined in
I think, therefore, the first count in this declaration is good, and that in the case put by that count the husband cannot sue alone, and at any rate, if he can, as in the cakes of trover, (1 Chit. 62,) it is no error to join the wife.
The next inquiry is as to the second count in the declaration. That count says the husband and wife were possessed as of their own proper goods, and that the
The remaining point is, whether the judgment should have been rendered on the verdict; the value being in the; aggregate». On this point the law is with plaintiff in error — see several authorities, 1 Chit. 121-2; 2 W. B. 852; Bul. N. P. 51. The judgment is reversed, and the cause remanded for a new trial, with leave to amend.