Haile v. Palmer , 5 Mo. 403 ( 1838 )

McGirk, Judge,

delivered the opinion of the

Palmer and: wife brought an action of detinue against' Haile for several slaves. The,defendant, Haile, pleaded non detinet? and several other pleas.- A trial was had in •the circuit court of St. Francois county, and verdict was given against Haile in gross for the value of the slaves;- and also for damages. There are' two counts in the declaration: the first count alleges that Palmer and wife complain that the wife, before the'marriage, was possessed of the slaves, and lost them; and that Haile found them, and detained them against the wife before the mar--riage, and against both since the marriage.

The second count goes on the possession of the"husband-and wife since the marriage, and it alleges the de-tainer against both. On- the trial, the plaintiff offered in-evidence a sworn- copy of a marriage register and certifi--cate of a-parish judge of Louisiana;; and also a- sworn copy of an inventory, and also a' like copy of the registry of a will made in Louisiana, and the appointment of the wife as executrix under the will.-

The defendant objected to the reception- of the testimony,-on the ground that these papers-were not’proved' to be public documents. The court overruled the object tion-, and the papers were read in evidence. The defendant moved for a new trial and in arrest of judgment;: these motions were overruled. The motion in arrest of judgment rests on the" ground thar the two counts con-tara causes of action which cannot be joined. The errors assigned-, and all the points made^are'clearly embra--ced in the two foregoing points.

I Will proceed: tó consider the question, whether the court erred iri receiving the sworn copies.- The obiec-Iron made to this evidence is,-that it does not appear,-by sufficient evidence, whether the'originals, of- which- these papers are copies, by the laws-of Louisiana; are to be made matters of record at all,- This objection* appears to me to’ be well founded. One issue' to be was,-whether Fálmer and5 wife were ever marriedi- The proof adduced'is this sworn'copy; but whether Or certificate, by. the' laws of Louisiana, cari have any legal existence, has riot been shown ; and the rule of our la-W is- that, 'Where1 the law requires a- paper to- be recofded- and it is recorded, then a sworn copy is evidence, and for this see 1 Stark. 154; Bul. N. P. 229. And again, no copy of any paper on record is evidence, unless the law requires the paper or transaction to be made matter of record — see Peak’s Evi. 231. This is sufficient as re-garc(g marriage certificate. It seems, also, to be the rule regarding the inventory and other papers. The plaintiff’ also offered, and did read, a sworn copy of a will. This, as evidence of the existence of the will, i* defective; also, for the same reason, the law of Louisiana should have been produced, by yvhich it might be seen whether the original was made and .established according to that law. The 19th section of the act of the general assembly of 1835, provides that citizens of any of the United States, or of the Ten itories thereof, owning lands or personal estate in this State, may devise and bequeath the same by last will and testament, executed and proved according to the laws of this Stale, or the laws of the State where the same shall be made — M. C. 619. The sworn copy does not prove that the will was executed according to the laws of Louisiana; there is no proof what their laws require on this subject. On the admission of this evidence the court erred also. This disposes of the questions of evidence.

Quere? In detij nue, (as in tro inceptioneof the eanse of action was before UofsumdvesetoaC' the wife, must husband and wife l°f“L it certain that they may join. Tracrews, Judge,

The next question is, ought the judgment to have been arrested 1 The first count goes on the right of the wife' before marriage, and joins the husband with the wife. Mr. Scott, of counsel for the plaintiff' in error, contends that the husband in this case should sue alone, and prove this, he cites and relies on the following authorities: — 1 Chit. Plead. 60-1, 54, 119; 1 Bac. 502; 2 Bac. Abr. title “Detinue,” 317; Bul. N. P. 50; H. Black. Rep. 108, and severrl other authorities of like land. These are wh’ch establish the doctrine that, in detinue for the goods of the wife, when th'e possession and find-iDg was in the defendant before marriage and continued after the marriage, the husband alone can bring detinue; and the reason given for the thing is, that the law transfers the right, or (to use the exact expression of the books) transfers the property to the husband.

Although the cases are numerous; I feel bound to say I have not the least confidence in the legal cox-rectncss of the doctrine. The special cases are contrary to the general rule. The general rule is this, that in all cases where the meritorious cause of action existed in the wife before the marriage, and the marriage should give the thing to the husband when recovered, the wife must be joined in the action; and when the causes of action would survive to her, she must be joined. To support this position, Mr. Brickey cites 1 Chit. Plead. 17, 18, 60-1. These last authorities satisfy me that when the inception of the cause of action was before marriage and the completion afterwards, they both may join, as in case of trover before marriage, and conversion afterwards; or the husband may sue alone for the conversion after the marriage. The first authorities cited from 1 Chit. 17 and 18, ara entirely clear to me that the true criterion is, if the •cause of action would survive to the wife, the husband and wife should and must join in the action; and why? Because, if the husband die before judgment, or even af-terwards, and before the money is made, the right goes to' the wife. Chitty says, on this point the authorities are contradictory. But the better opinion seems to be, that in all such cases the husband and wife must join. If this were an action of trover, the husband and wife might join — 1 Chit. 62; or they might sever, and the husband •sue alone. This is against the general rule, which requires the parties who have the legal interest to join in the suit. To let the husband sue alone is against the right secured to the wife of taking as survivor.

kinT^the^ dis-most show Sterest of the* -wife; and fore a count, sta- and wife wots possessed as of their own goods, *nt!detained.6" * them, &c, is bad.

As to detinue, .the books and cases say the husband must sue alone; and the reason given is, that the law-transfers the property to the husband. Now, there is no truth in this reason. It is not then in law that when a wife possesses goods before marriage, and these goods are taken and retained from her before marriage, that on her marriage the goods or the right of them is vested in the husband. He may sue and recover them, and if he does this before the marriage is ended, and reduces them to possession or actually possesses the money recovered, then, and not before, the law transfers the right and property to him. This idea is supported by at least one hundred books. I take the cases above cited, to prove the husband alone can sue, to be cases against the law, and to be cases without reason — see some of the cases, Bacon, title “Detinue;” Bul. N. P. 53; Salkield, 114, Nolthrop & wife v. Evans.

I think, therefore, the first count in this declaration is good, and that in the case put by that count the husband cannot sue alone, and at any rate, if he can, as in the cakes of trover, (1 Chit. 62,) it is no error to join the wife.

The next inquiry is as to the second count in the declaration. That count says the husband and wife were possessed as of their own proper goods, and that the fondant detains them, &c. In my opinion this, count is-a count or case that cannot exist-. If the property is in truth the property of the husband,; then he alone could, law be possessed. The property could not be the pro--perty of both, in any other sense than as joint tenants.. But in regard to husband and wife joining in an action; the law requires the right of the wife to be stated, so the court can see on the record what that right is— see 1 Chit. Plead. 20. It is said-' in all cases when the wife is joined with the husband, her interest must be expressly stated, and it'must hot arise by-intendment. Im it “can only be by intendment and supposition that she is joint tenant with her husband. This count is, as it stands, a count in right of the husband and wife as- joint tenants, though in that respect bad; and the second is a count in¡ regard, to the right of the husband and wife; as such the-right'seems to me to be distinct. There is therefore a misjoinder of counts, and the judgment for this cause should have been arrested.

The remaining point is, whether the judgment should have been rendered on the verdict; the value being in the; aggregate». On this point the law is with plaintiff in error — see several authorities, 1 Chit. 121-2; 2 W. B. 852; Bul. N. P. 51. The judgment is reversed, and the cause remanded for a new trial, with leave to amend.

Tompkins, Judge. — I concur in reversing the judgment" for the reasons given,,but believe that the husband ought' tó sue alone.. Edwards, Judge. — I concur in reversing the judgment in, this. case: for the reasons given, but I do not think that-the. wife must necessarily be. joined in detinue. I think, the husband may sue alone.