Citation Numbers: 42 Me. 105
Judges: Appleton, Goodenow, Hathaway, Tenney
Filed Date: 7/1/1856
Status: Precedential
Modified Date: 9/24/2021
The facts in this case show that the wife óf the defendant was in prison for the non-payment of certain fines and costs, which had been imposed upon her by a magistrate, upon conviction for offences committed by her against the statute prohibiting the sale of intoxicating drinks. The notes in suit being required were given by her to procure her release from such imprisonment. It is contended by the counsel for the plaintiff that these notes, being authorized by the Revised Statutes, c. 175, § 1, are valid, and that the defendant, as husband of the maker, is liable therefor.
Are the notes in controversy valid contracts as against the defendant’s wife ? By her marriage the right of a wife to all her personal estate, at common law, vests in her husband, and he becomes liable to make provision for her suited to her
The question then arises whether the notes in suit are valid as against the defendant’s wife, under the statute c. 115, § 1, before cited; and if so, whether that fact will make the defendant responsible in this suit therefor. Does, then, that statute give to a married woman, who is in prison and unable to pay the fine and costs for which she is imprisoned, a capacity to bind herself by note for the amount due, for the purpose of procuring her release ? If she has not such capacity, then no mode seems to be provided by law for her discharge; and her imprisonment may be for life, unless her husband or some friend volunteers and pays the amount required as the condition of her release. By the statute the sheriff is authorized to take the note of the convict only who is imprisoned and unable to pay his fine and costs. In terms, it applies to “ any person convicted of a criminal offence and in favor of
By the common law there are many cases where such an obligation on the part of the husband, to pay and discharge the debts and liabilities of his wife, is implied. He is liable for her debts contracted before marriage. He is also liable with her for her torts and frauds, committed by her during the coverture, where the remedy for the tort is only damages by suit or fine. 2 Kent’s Com. 149. So, too, he may be held liable in an action upon a penal statute, to recover a forfeiture incurred by her, especially where such forfeiture goes to the plaintiff and is in the nature of damages for injuries sustained by reason of her tortious acts. Harbroach v. Weaver, 10 Johns. 247. But when the wife is prosecuted by indictment, for an offence to which her husband is in no way privy, he shall not be included in it, because it is a proceeding grounded merely on a breach of the law. 1 Bacon’s Abr. 487, and cases there cited. It is also said, in a note on the same page, that the husband is not liable to pay the forfeiture recovered on an indictment against the wife. It has also been held, that the husband is liable with the wife to an action of debt or scire facias, upon a judgment recovered against her for costs during the coverture, but his property cannot be taken, nor his body arrested, upon an execution against her alone. Haines v. Corliss, 4 Mass. 659.
In the cases before cited, where the husband is held responsible for the debts, torts and liabilities of his wife, his obligation arises principally from the fact that he is supposed to have in his hands, by virtue of his marriage, all the wife’s per
If the notes, then, now in suit, may be regarded under the statute as valid contracts of the wife, since the principal reasons which were deemed sufficient at common law to create a legal liability on the part of the husband, to pay and discharge her legal liabilities, have ceased to exist, we are of opinion that they should not be now applied for the purpose of extending the husband’s liability to cases in which they were never before applied, even though by the principles of that law the cases might have fallen within it. The common law liability of the husband, has never been extended to any contracts of the wife made during coverture, for the simple reason that by that law, as we have seen, no such contracts could exist. The notes in suit, if valid as against the wife, under the statute relied upon as authorizing them, having been given before the passage'of the statute of 1844, c. 117, § 1, before cited, are only the contracts of the wife, and not the contracts of the husband; and she alone can be held liable thereon, although for the sake of the remedy, the husband might perhaps be joined with her in the suit, as he now may be in actions upon her contracts before coverture, in which case execution can only be levied upon her estate. Stat. 1852, c. 291, § 1. If the notes are her contracts, no action can be maintained upon them against the defendant alone.
It is, however, contended, that if the notes in suit are not valid contracts as against the wife, they are nevertheless valid
But, if it could be made to appear, that the defendant was liable at common law, for the items which constitute the consideration of the notes, this fact would not necessarily make him a party to the notes. According to all the authorities which have been examined, the husband’s liability for necessaries rests wholly upon his supposed assent to her contracts, made upon his credit, or rather upon his promise implied from his marital duties and the circumstances of the case; and his liability for her torts and upon judgments recovered against her during the coverture, results from an obligation imposed by law; but such promise or legal obligation arises only to such persons as furnish the necessaries, or are injured by her
The simple fact of being a man’s wife does not confer authority upon her to sign her husband’s name to any contract, (Shaw v. Emery, 38 Maine, 484,) and she cannot bind him by signing her own signature, except it be in cases where she is authorized to use her own name as his, .or where his assent to such use may be fairly inferred; as where a note or draft is made payable to her with her husband’s consent, and after-wards, by his authority, either express, or implied from accompanying circumstances, is indorsed by her in her own name. In such a case the note or draft, though literally payable to her, is in fact payable to her husband, and her name, in legal contemplation, stands for his. Hancock Bank v. Joy, 41 Maine, 568.
In the case at bar, so far as appears from the statement of facts, the notes were signed by the defendant’s wife without his knowledge or consent, and they cannot, therefore, be regarded as binding on him. If she had signed the defendant’s name instead of her own, he.could not have been held without proof of her authority; and it has been held, in a case where the wife signed her husband’s name, that he was not bound,, because her authority to make the note was not referred to, or recognized upon its face, neither in the body of it, nor in the signature. Minard v. Mead, 7 Wend. 68.
In view of all the facts, we are satisfied that this action cannot be maintained. Plaintiff nonsuit.