Black v. Tricker

The opinion of the court was delivered, May 20th 1868, by

Thompson, C. J.

We are of opinion that the learned judge below gave a substantially accurate exposition of the law of the 2d section of the Act of the 4th of May 1855, when he instructed the jury, “ that when a husband by reason of habits of drunkenness, profligacy or other cause neglects to provide for his wife and family, and the wife by her labor, industry and frugality provides for the family, and accumulates property, she is entitled to claim and hold the same as her own as if she was a feme sole trader against the husband, his creditors and the whole world;” and in holding that a decree by a court that she is to be regarded as a feme sole trader, is not necessary to enable her to hold property acquired by her under the circumstances mentioned in the act.¡

The section provides that “whensoever any husband, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader under the Act of the 22d February 1718; and be subject as therein provided, and her property, real and personal, howsoever acquired, shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by such husband, and in case of intestacy shall go to her next of kin as if he were previously dead.

It would seem from these provisions that the acquisitions of the wife, under the contingencies mentioned in the act, being declared by it to belong to her, and subject only to her control, without any right in the husband to interfere with them, his creditors cannot come upon them. But that is attempted here. The jury have found the profligacy, drunkenness, failure and neglect of the husband to provide for his wife in the case, upon the evidence, and under proper instructions submitting it. But it is claimed that the finding was upon insufficient evidence, — that the only proper evidence on this point should be a decree of a court, passing on the question of profligacy, drunkenness and neglect, and certifying the wife as a feme sole trader.

We have no adjudicated cases on this point, in its applicability to the 2d section of the act quoted above. The only question therefore is, whether the property bought by, and paid for by the defendant out of the fruits of her earnings, without the aid and assistance of her husband, and in despite of his profligacy and neglect, can be held by her against his creditors, it having been acquired without a decree being first had in her favor that she was a feme sole trader. There is certainly nothing in the section which expressly requires it. “ She shall have all the rights and privileges secured to a feme sole trader by the Act of 22d February 1718,” is the language of the act. Married women, by that act, whose husbands have gone to sea, leaving them to work for their livelihood, are to be “ deemed, adjudged and taken, and are hereby declared to be as feme sole traders,” and liable as such to sue and he sued, &e. This act creates or rather declares the conditions of the wife as the result of the circumstances, and no decree of a court is required to determine it. The fact being established in any controversy in the ordinary way by proof, the privilege results. This I understand to he what the court meant in Jacobs v. Featherstone, 6 W. & S. 346, in saying: “ It is her being left to contract debts for which his person cannot be reached by process that gives her the credit, and subjects her to the responsibility of a feme sole.” No decree is expressly required in this act, and this serves to explain the section under consideration; being on the same subject-matter, they are to be regarded as in pari materid, and subject to the same construction ; and if' so no decree was required in this case.

But without this aid it seems to me the proper construction of' this act must result in the same way. The section was designed to suspend the marital rights of the husband as a consequence of the acts enumerated, and at the same time to. relieve the wife from her marital disabilities. It was intended to put her on a footing, where she could acquire and exercise dominion over property, to sue and defend; and when the act declares that property acquired under the circumstances described, the proof of or establishment of those circumstances is surely all that is required in this, as in the bther act. I see not how a creditor could complain of want of notice of the situation of the parties. In the absence of any deceit practised on him he cannot complain. He ought to have inquired before he trusted. Any one who trusts a drunken profligate has himself to blame, for he ought not to be deceived if he exercises any reasonable care and circumspection.

The construction contended for, would require the decree to precede the efforts of the wife to accumulate the means of supporting herself and family, and how she could accomplish this in most instances it would be difficult to tell. The statute simply, therefore, restores her to her natural rights under the circumstances, one of which is to acquire and hold dominion over her acquisitions against all but her own creditors. We think the law is to be carried out in reference to her property as it is in other cases of a feme sole. It is a remedial statute and to be benignly interpreted.

The 3d section of the act substitutes the wife and mother to the authority of the father over the children, in case of the neglect of the father to provide, as in the 2d section. Like the 2d section, no provision exists for any decree of the court in aid of this power; and it is not until we come to the 4th that there is any provision in regard to a decree and certificate to the wife as a feme sole trader. But the object of it is there declared. It is that “ creditors, purchasers and others may with certainty and safety transact business with the married woman under the circumstances aforesaid.” I agree with the able argument of the counsel for the defendant in error, that in view of the provisions of the preceding sections, and the difference in character and .subjects embraced by them from those of the 4th, we would mot be justified in holding this decree as a necessity in all of .them without regard to this difference. It is not needed to -enable the married woman to hold property, nor is it necessary in order to enable her to control her children. The act fixes her ■status in regard to them, by substituting her authority in place of the father’s voluntarily withdrawn, and we think we ought to .regard it as fixed by the same authority as to acquiring and holding property acquired by her. Nor does the section, when it • declares that the certificate under the decree shall be conclusive of the right of the married woman to transact business, exclude • other modes of competent proof.

The -5th section also throws light on this point, we think. It declares .that where a husband shall have for one whole year or upwards^ previous to the death of his wife, wilfully neglected or refused to provide for her, or deserted her, he shall not be entitled to claim .any right in her real or personal estate as tenant by the curtesy.. .No decree is declared necessary to have been made in the lifetime of the wife to effectuate this intention of the act. The facts to establish this, when it is relied on to defeat the claims of a husband, are to be proved and found by a jury in the ordinary way. No other mode is provided.

Again, by the 3d section of the Act of 11th April 1866, it is provided that where a husband has neglected or refused to support his wife, or she has been divorced from bed and board, it shall be lawful for her to maintain actions of slander or libel, for the protection of her reputation, and to recover her separate earnings or property. This act being in pari materid with the acts already cited, shows very satisfactorily that a decree oí feme sole trader is not absolutely necessary in order to enable the wife to assert her rights and privileges in regard to her own property acquired under them. This is the only point which needs to be discussed in the case. We think the court committed no error in its ruling upon it, and as there is no error in either of the other assignments, the judgment must be affirmed.

Judgment affirmed.