Stokes v. Macken

| N.Y. Sup. Ct. | Oct 1, 1861

By the Court,

Mullin, J.

It is not shown what rights husbands acquire, in the property of their wives, by virtue of the marriage, by the laws of England in force when the plaintiff and her husband were married. In the absence of proof of the law of England, are we to presume the common law, in regard to the rights of a husband in the property owned by the- wife at the marriage, as well as that subsequently acquired, to be in force, or the law of this State ? /

The general rule laid down in Avoy v. Carroll, (1 Mill. Louis. R. 541,) and Crozier v. Hodge, (3 id. 358,) is that if the court has no means of information as to what the law of another country or state is, it will act upon its own laws. But if such country once constituted part of the same kingdom or government with that where, the court sits, and they were governed by the same laws, the court will take judicial notice of the laws which prevailed in both before their separation, as matter of public history, and presume them unchanged, till the contrary be shown. The court say: “We have Looked into the jurisprudence on this subject, and do not discover that the different States of the Union require proof that the common law prevails in each, or that it has ever béen deemed necessary to establish by testimony that the same system governs in England. It is true they require proof of British statutes which never were in force in their own .state,” (Holmes v. Broughton, 10 Wend. 75, 78. 1 Mass. 103. 2 id. 34. 1 Pick. 415. Monroe v. Douglass, 1 Seld. 447. Cutler v. Wright, 22 N. Y. 472.

Having been once a part of the British empire, we take judicial notice that the common law was in force within her dominions at the time of our separation. And we presume, also, that that law remains unchanged, in the absence of proof td the contrary. The rights of the husband in the property of the wife, at and after the marriage, were regulated by the common law, and we must assume that the husband’s rights were the same at the time of the’ plaintiff’s marriage as at the time of the separation. By the common law, the husband, on the marriage, became vested with the title to the personal property of the wife, and with the right to all that she acquired during the coverture.

Robert Stokes, then, on his marriage with the plaintiff, became the owner of the property then owned by the wife; and although he may have permitted her to retain possession of it, or to invest it in trade, or in other property, his right still continued, to the property, or that into which it had been converted by the wife, whom the law made the agent of the husband, in her dealings with the property.

As part of the property for which the action was brought was purchased with the money owned by the wife at the time of the marriage, and as there is no means furnished by which to distinguish such property from that purchased with the money last received in England, this judgment must be reversed, whatever the wife’s interest may be in the money last named.

[Onondaga General Term, October 1, 1861.

Alien, Mullin, Morgan and Bacon, Justices.]

Prior to the - passage of chapter 90 of the laws of 1860, the husband was entitled to the wife’s earnings during the coverture. A part of the property taken by the defendant was purchased with those earnings. As to so much of the property, also, the plaintiff was not entitled to recover; and no means are afforded by which we can distinguish that part from that to which she may be entitled.

Without examining the question whether the plaintiff is entitled to recover for so much of the property as she can prove, to have been purchased with the money last received from England, I am entirely satisfied that the judgment of the justice was properly reversed by the county court; and that the judgment of the latter court ought to be affirmed.

Judgment affirmed.