Smith v. Gorman

Appleton, J.

The writ in this case discloses no relationship between the plaintiff and either of the defendants. So far as the proceedings upon their face afford any indications, the action was rightly commenced.

At the return term a plea in abatement, alleging the plaintiff to be the wife of the defendant Smith, was filed.

By the common law a wife can only enforce her rights in conjunction with her husband. By statute 1848, c. 13, the wife is authorized to bring an action in her own name in vindication of her rights. So far as the statute gives her authority, she may commence and prosecute suits and no further. By § 1, “ she may commence, prosecute and defend any suit in law or equity to final judgment and execution in her own name, in the same manner as if she were unmarried, or she may prosecute or defend such suit jointly with her husband.” The statute is in derogation of the common law, and is not to be construed as giving the wife a right of action against the husband, unless it results from the express terms of the statute, or from necessary implication. The alternative is given to the wife to sue in her own name or “jointly with her husband.” The authority is in the alternative, and in either case is co-extensive. As the husband and wife cannot “jointly” maintain an action against the husband, so neither can the wife alone. So the right of prosecution and of defence is co-extensive. If the wife may sue the husband, *409 the husband may sue the wife. 'The statute gives no mutual right of action between each other, to the husband and wife, and none such exists by the common law.

The suit could not have been successfully maintained against the husband, if he had properly pleaded the facts upon which he relied. His plea, being found upon demurrer to be fatally defective, was overruled, and a respondáis ouster awarded.

.The case then stood for trial. The writ and pleadings disclosed no facts duly pleaded, on account of which the suit should be abated.

At a subsequent term it was referred by rule of Court. The referee awarded damages in favor of the plaintiff against the defendant Gorman, and made a special report setting forth that the defendant Smith was the husband of the plaintiff, and submitted the question, whether or not he was entitled to costs, to the determination of the Court.

The counsel for the defendant filed objections to the acceptance of the report of the referee, which were all overruled by the presiding Judge.

In an action of trover against two or more defendants, the judgment may be against all or a portion of the defendants, as the facts may be established by the proof adduced. No exception to the misjoinder of parties can be taken advantage of on the acceptance of the report, unless they are specially set forth and submitted to the Court.

There was an allegation of misconduct on the part of the referee. The counsel for the defendant made an affidavit setting forth the facts he expected to prove, and the ground of such expectation, and requesting delay that he might furnish such proof. Whether he was entitled to delay was a matter of discretion. The Court may have regarded the facts proposed to be proved as immaterial ¡ or, if material, that no sufficient reason .was afforded for granting the requested delay. It is immaterial on which ground a postponement was denied. It was discretionary with the Judge in either case.

The referee was at liberty to receive testimony which by the rules of the common law would be inadmissible, or to re *410 ject it. Of the force and effect of the evidence received, and of the legal rights of the parties resulting therefrom, he was the selected and exclusive judge.

The husband not being liable to the suit of the wife cannot recover costs against her. The right to issue execution against her alone is derivable only from the statutes relating to this subject. The executions which may be issued under § 2, of the statute of 1848, c. 73, are limited to “such suits” as she may commence and prosecute by virtue of § 1. But, as has been seen, § 1 does not authorize a suit by the wife against the husband. Neither does it allow an execution to issue in favor of the husband against the wife. So great a change of the common law should be established by the clear language of a statute, or by necessary implication. Nothing indicates such to have been the intention of the Legislature.

Exceptions overruled.

Tenney, C. J., and Rice, Cutting, and May, J. J., concurred.