Curia, per
Savage, Ch. J.
The prisoner took the goods secretly ; and no doubt with an intention to convert them to his own use; but this was done by the consent and at the solicitation of the wife, who had agreed to elope and live with him in adultery. This is urged as reducing the offence to a trespass. So far as the question depends upon authority, we are left to the conflicting opinions of commentators, without any adjudged case in point. The statute of Westm. 13 Ed. 1, c. 34, is relied on, which enacts thus: “ And of women carried away with the goods of their husbands, the king shall have the suit for the goods so taken away.” This may mean an abduction with the consent, or against the will of the wife. If it be the latter, it strikes one as singular that such a circumstance should reduce an act, which would otherwise be a felony at the common law, to a mere trespass ; and that a statute should be necessary to restore it to itsproperrank in the scale of crime. It is certainly more consistent with our present ideas on this subject, to suppose the statute an affirmance of the common law. Hale and other writers do not assert with any degree of confidence, that the consent of the wife, that the adulterer with whom *575she elopes should take the husband’s goods, will reduce the crime to a trespass. Hale puts the case by a semble, and is followed by some others. The idea may have grown out of a supposed interest which the wife has in her husband’s goods ; for it is said in some books, he endows her at the marriage with all his worldly goods. (Russ, on Crimes, 26, 7.) But I believe it is now universally received as law, that she can exercise no control over his goods except as his agent; and not in her own right. The husband may sell the goods or give them away, or bequeath them.; Her interest is no more than that of a child, . In both cases it is a mere expectancy ; and in most cases, the delivery to a stranger by either would protect him from a prosecution for felony. He has reason to presume the consent of the parent or husband ; and acts in good faith. On this principle, he would be a mere trespasser, though consent should happen to be wanting. / We are happy to find that this is so upon authority. In Dalton’s Country Justice, ch. 157, p. 504, Nelson’s ed. it is said, “ so if a man takes another man’s wife, with her husband’s goods against the husband’s will, this also is a felonyand again, “ if a married woman shall deliver to her adulterer her husband’s goods, this is a felony in the adulterer.” In a note to 1 Hal. P. C. 514, the reason mentioned is, that “iq such case no consent of the husband can be presumed.?! Russell approves of this doctrine, and the reason on which it is fonnded. (Russ. on Crimes, 27.) Here the adulterer did more than merely receive stolen goods from the wife; He assisted in stealing them, carrying some of them out of the house,' He had no reason to presume the husband’s consent to such a taking ; and is plainly guilty of felony. ,f
The court sentenced the prisoner to 3 years imprisonment in the state prison at the city of New- York, at hard labor.
Rule accordingly.