3 Whart. 48 | Pa. | 1838
The opinion of the Court was delivered by
This was an action on the case, brought by Mary Towers against the executors of her deceased husband, John Towers, to recover money lent to him during the coverture. Mr. Justice Kennedy charged the jury, that by the marriage, without the intervention of an agreement, the husband acquired an absolute right to the possession of his wife’s real estate, and an absolute right of property to all her personal estate, including her money, or right to claim money reduced into possession. • But although the husband, by the mere operation of law, became entitled to all her property, whether in possession or a chose in action, yet, that the parties, before marriage, may, by articles of marriage settlement, alter the law, so that notwithstanding the marriage, she may act in respect of her separate estate as if she were a feme sole. According to the legal effect of the agreement between Towers and his wife, before marriage, Mrs. Towers continued the owner, in equity, of her estate, as if no marriage had taken place. Her husband had no right whatever to her money, nor to the rents and profits of her real estate. She had a right to dispose of them as she pleased, either by gift or loan, as well to her husband as to a stranger ; and that, if lent to the former, he was as much bound to repay her, as the latter. If Captain Towers received any of her rents, without her consent or autho
The counsel for the defendants except to that part of the charge, which relates to 'the item of $940. A misdirection in relation to this, which was the principal item in the account, will undoubtedly entitle the defendant to a new trial. “ The item of $940,” say the Court, “has been much commented upon; and this, it must be observed, was read to you as being in the handwriting of Captain Towers, without any objection; and although the fact of its being wholly in his proper handwriting was not directly denied, yet a course of observation has been pursued, tshow that it may be well doubted. It would have been better had the counsel for the defendant apprised the counsel for the plaintiff of their doubts as to this, so as to have afforded them the chance of proving that the figures, $940, as well as the rest of the item, were in his handwriting. If the plaintiff had witnesses in attendance to prove the fact, the defendant’s counsel, by permitting the entry to be read, without objection, hesitation or remark, may, themselves, have thrown the plaintiff off his guard, and induced him„ to dispense with calling his witnesses.
The opinion of the Court on the last point, would answer the defendant’s purpose, but there are other exceptions which have been pressed upon the Court, and which it may be proper briefly to notice. The defendant’s counsel have no just ground of exception to the direction as to the entries in the books. There is no evidence to show that any books were withheld by the plain
It remains now to notice the exception of the defendant to the charge on the statute of limitations. This point depends on the question when the right of action accrued; for until then, in those cases where the remedy is suspended, the statute does not begin to run. Although the debt existed at the time of the loan, yet the remedy was postponed until the death of the husband. In Pennsylvania, a wife cannot sue her husband, nor can she maintain a suit, except, perhaps, as a feme sole trader, against a stranger, without joining her husband. In contemplation of law, the wife is scarcely considered to have a separate existence: she and her husband constitute but one person, and all the rights and duties which are hers at the period of the marriage, become his during the continuance of'that union. This unity of the persons of the husband and wife, is the source from which her disability to maintain suit is derived. The separate property of the wife was vested in trustees by the marriage settlement; but the money, for which the suit was brought, was received by her from the rents of the property, and paid to her as income. It was money, over which the trustees had no control, and for which they could not maintain an action. If we should rule that the statute bars this suit, it would, in effect, deprive wives of all remedy, when they had made a direct loan of money, derived from their separate property, to their husbands.
The exception on which he principally relies, is the exclusion of the testimony of Mary Towers. Mary Towers, who was the original plaintiff, now deceased, assigned all her interest to her son, for whose use the action was tried. She was offered as a witness at the arbitration; and being objected to, the sum of $50 was paid to Mr. Norbury, one of the arbitrators, to cover costs. There is some difference between the counsel whether this amount was fixed by the arbitrators, or by the plaintiff’s counsel; but for the purpose of this case, we shall take it to have been fixed by the arbitrators. After this, she was examined as a witness. The notes of counsel, proved to contain the whole of her testimony, were offered in evidence. The $50 ultimately proved inadequate to cover-the costs of the suit. The arbitrator retained the money until the filing of the award, and then asked the plaintiff’s counsel to receive it, and apply it towards the expenses of the arbitration. He received it accordingly, and applied $39 to the payment of the arbitrator’s fees, and the remainder towards room-hire. The full amount of the remaining costs was paid into court, during the trial. The fact of
The Court were right in rejecting the evidence, on several grounds. Because the costs should have been paid to the prothonotary, the arbitrator having no right to receive ■ them; because although the arbitrators may have fixed the amount, yet it afterwards turned out to be entirely inadequate to the payment of costs; and because the payment did not appear on the records of the court. It is well settled, that where the interest of a party on record is entirely divested by an assignment, and by payment of a sum of money, sufficient to pay all costs which have, or may accrue, the witness is competent.* But the payment of all costs is indispensable; for where a scintilla of interest remains, it is but serving the ends of justice, to exclude the witness. And here it must be remarked, that the opinion of the witness as to his interest, cannot affect his competency. It is the fact of interest at the time the witness is sworn, that is a criterion of competency. If the facts had been known, Mrs. Towers’s testimony would have been excluded; for at the time of her examination she was clearly interested. The person who wishes the benefit of such testimony, must take the risk on himself, in paying an amount sufficient to cover all costs; and where it is not done, in case of death, he has no right to complain, that the evidence has not been received. We are also of the opinion, as has been before
As the cause goes back to another jury, it is necessary to notice the charge in relation to interest. The jury were instructed to allow-interest on the money lent, from the time of the death of the husband. But whether, the plaintiff should have interest 'until the death of Captain Towers, was left to the discretion of the jury, with, however, a strong intimation, that if the jury believed the parties lived together -on good terms, during the coverture, and no interest was ever demanded, interest ought not to be allowed. In an ordinary case of loan, by a wife to her husband, of her separate estate, independent of contract, interest ought not to be given; because, usually, it would not enter into the contemplation of either party. Buf when coercion was used, or there was any impropriety of conduct on the part of the husband in obtaining the money, the jury would be justified in giving interest. The jury were, in substance, so instructed, and in this we perceive no error.
New trial awarded.
Cited by Counsel,'5 Wharton., 122, 141; 8 Watts, 15; 4 Watts & Sergeant, 547; 1 Barr, 328; 7 Casey, 452; 9 Id. 526 ; 14 Wright, 379; 1 P. 1. Smith, 73; 2 Id. 412; 5 Id. 417.
Cited by the Court below, 8 Wright, 173.
Cited by the Court, 4 Wharton, 453; 7 Barr, 204; 4 Wright, 94; 11 Wright, 310; 14 Id. 386.
See 11 Harris, 462; 7 Casey, 452; 9 Wright, 533 ; 14 Id. 138 ; 10 P. P. Smith, 415.
See oases cited, post 347.