22 Tex. 544 | Tex. | 1858
We are of opinion that the court erred in the sixth instruction, and that the verdict, in so far as it is a response to the sixth and seventh instructions, was contrary to law and the evidence.
It appears that the slave, Zack, was given in exchange for a slave, Peter, which had been given to the former Mrs. Hawkins, by her father, in Mississippi, in 1819. It is agreed, that the common law of England was the law of Mississippi, except as altered or modified by statute. It has not been shown, that there had been any such alteration or modification of the common law, in' Mississippi, affecting this case.
Irrespective of the question, whether the gift to Mrs. Hawkins, “and the heirs of her body,” could be established, as in this case, by parol; by the rule of the common law, Mrs. Hawkins became, by force of the gift, absolute owner of the property. Being personal property of the wife, absolutely, in possession, the marital rights of the husband attached, and it became, by the common law, his property; for there is nothing in the language employed in making the gift, to exclude his marital rights. (Nimmo v. Davis, 7 Tex. Rep. 26.) The principle which, at common law, governs gifts and conveyances of this nature, is, that, in order to exclude the marital rights of the husband from attaching, and converting the property to his sole ownership, there must be a clear and unequivocal intention manifested by the grantor, in the instrument giving or conveying the property, that the wife shall possess the exclusive interest in the property conveyed. It must be clearly manifest, either that the husband is excluded, or that the wife’s control is independent of the husband’s power. And so the common law is held by the courts in Mississippi. (Grand Gulf Bank v. Barnes, 2 Sm. & Marsh. Rep. 165 to 184.) The statute of Mississippi of 1839, enacted “for the protection and preservation of the rights and property of married women,” effected a change in the law of that State in this respect. (Ibid.) But that Act was not passed until twenty years after the gift in question, and could not affect the rights of the husband to the property previously acquired. His rights had vested and become abso
The verdict, in so far, is unsupported by evidence. Moreover, as to hire, the verdict does not distinguish between the hire of this and the other slaves, but is for a gross sum. Should we hold the recovery right, as to- the other slaves, we have not the means of knowing what amount of hire the plaintiff is entitled to recover for them. The verdict is not so certain, as to enable us to render judgment for them and their hire.
We think proper to observe, that we do not recognize the propriety of the practice, adopted by the parties in this case, of referring us to “the Codes and Digests” generally of Mississippi and Arkansas, without indicating the particular sections, or provisions of law, on which the parties rely. The provisions of the laws of other States, which were in evidence upon the trial, should distinctly appear by a particular reference; and should either be copied in the record, or accompany it, when the case is submitted for decision.
We think proper also to observe, upon the practice of copying into the record, as a statement of facts, the depositions of numerous witnesses deposing to the same facts, with the commissions, and certificates of the officers, and other irrelevant matters, swelling the record to an inconvenient size, by useless repetitions of the same, and a mass of irrelevant matter ; when the material facts might be much more intelligibly presented by a concise statement, as the law requires, and the parties thus saved much unnecessary expense, and the court spared an unprofitable consumption of time, in the examination of the case. What purports to be a statement of facts, in this case,
We think we may well decline to recognize such general references to the laws of other States, and such a presentation of the evidence, as requiring an examination of other questions, which, though not necessarily involved in the present disposition of the case, if properly presented, it might he desirable at present to take some notice of, with a view to its final disposition upon another trial. It will suffice for the present, that there is error in the judgment in the particulars herein before indicated; for which the judgment must he reversed, and the eause remanded.
Beversed and remanded.