Tunks v. Grover , 57 Me. 586 ( 1870 )

Barrows, J.

The plaintiff in this action, a married woman, summoned her husband as trustee of the principal defendant; or, at least, this is what the principal defendant proposes to offer in defense of the action.

The suit is brought to recover the wages of her personal labor, not performed for her own family, for which by the express provisions contained in § 3, c. 61, of the Revised Statutes, she may maintain an action in her own name, and hold them in her <5wn right, against the husband or any other person.

Is she entitled to the benefit of a process of foreign attachment to recover them where the husband is the garnishee of the debtor ? Under such a statute provision as that above cited, we see no valid reason to debar her from it, even if it followed as a necessary result that she must “ array herself against her husband in an action of law ” to obtam it.

Ubi jus, ibi remedium; and when the legislature has conferred rights of this description upon married women in such emphatic terms, it is not for us to deny the appropriate process to enforce them, although long-cherished and familiar doctrines of the common law are thereby overturned. '

The case stands upon a different footing from those of Smith v. Gorman, 41 Maine, 406, and Crowther v. Crowther, 55 Maine, 358, cited for the defendant, by reason of the more specific statute .provision enabling the wife to maintain suit in her own name for the wages of her personal labor, not performed for her own family, as well as by reason of other enactments since those cases arose. Moreover, the alleged trustee does not seek to raise the question, and it is not competent for the principal defendant to intervene in this manner with allegations of fact dehors the record to affect the decision as to the liability of the trustee. Legally speaking, there is nothing before us to show that the relation of husband and wife exists between the plaintiff and the supposed trustee. Upon the disclosure which he submits, the trustee is apparently chargeable; and while by § 29, of c. 86, R. S. the plaintiff and trustee is allowed to allege and prove additional facts material in deciding the question of the trustee’s liability, the principal defendant is not thereby authorized to file such allegations, and we know of no law permitting him to contest the validity of the plaintiff’s attachment in the manner proposed. The question of the trustee’s liability is to be settled between the plaintiff and trustee. The principal defendant is called upon in this suit to answer to the plaintiff’s claim against him, and has had his opportunity to be heard thereon. If he has nothing to say except that by reason of something not disclosed by the record, nor appearing in the disclosure of the trustee, the plaintiff’s attachment of his rights and credits is invalid, his answer is nugatory, and the demurrer thereto was properly sustained.

jExceptions overruled.

Appleton, C. J.; Cutting, Kent, Walton, and Danforth, JJ., concurred.