Hause v. Gilger

The opinion of the court was delivered, February 8th 1866, by Agnew, J. It was by no means clear upon the evidence how much Hause admitted that his wife had paid for him, or that the payments were by way of loan, But conceding there was some evidence on these points to go to the jury, it was very uncertain [413] from what source the money came. There is no direct evidence that it came from her separate estate. It is quite as probable, so far as we can discover, it came, from the avails of the business carried on by her husband, and afterwards by herself, during the seven years he lay in prison. ' On the evidence it was really only a balancing question, whether it came from her means or his. But on this point there should be no such doubt. It is necessary for the peace of families and the protection of estates, that one standing in the confidential relation of a wife should prove her right as a creditor with clearness. In such a case, especially where the husband leaves children by a former marriage, it will not do to permit her to gather up loose declarations and equivocal expressions — often no more than the language of affection or of mere intention — and to ask a jury to infer doubtingly ; but she must show by distinct and clear proof, that the transaction was a loan from her own separate estate, and not that of her husband, or of the avails of her labour which belonged to him. We cannot say the learned judge erred in taking the case from the jury, and the judgment is therefore affirmed.