Masten v. Herring

Boyce, J.: This an action of debt. The facts fully appear in the case stated. Counsel for the plaintiff, in support of his claim of right to maintain the said action, relies upon that part of Sec. 9, Chap. 550, Vol. 14 (Revised Code, 600) Laws of Delaware,as amended, which provides: ‘ ‘And in any case, a married woman,at the age of twenty-one years, may give a bond, with or without a warrant of attorney, just as if she were a femme sole.”And he cited the case of Warder, Bushnell & Glessner Co. vs. Stewart, 2 Mar. 275, in which the Court held that, under the terms of said act, a married woman may execute a bond to secure a debt not her own. Undoubtedly, the said provision is sufficiently broad and comprehensive to authorize a married woman to give her bond to one other than her husband. But does it authorize her to give a bond to her husband? And if she does, can he enforce a recovery thereon in an action at law against her? The said act, including the said provision, is in derogation of the common law. It is remedial—the purpose of its enactment being to remove from a femme covert certain disabilities existing at common law. And while it is true that a married woman may do those acts and things which the act authorizes her to do, the same as if unmarried, yet the act should not be construed so as to alter or change the common law status of husband and wife beyond its clearly expressed scope and purpose. At. common law both husband and wife were under such legal disabilities as that they could not contract with or maintain an action against each other. If it be conceded, as contended by counsel for the plaintiff, that the provision of the act relied upon, is, in itself, sufficiently comprehensive to authorize a married woman,of the age of twenty-one years, to give a bond to her husband as well as to another, [286] still it is obvious that the common law disability of the husband to contract with his wife has not been removed by the act, but on the contrary, it still exists. The husband is, therefore, incapable of legally assenting to the execution and delivery of a bond by his wife to him. And he being thus disabled, her bond to him is invalid', and he cannot enforce its collection by an action at law against her. White vs. Wagner, 25 N. Y. 328; Heacock vs. Heacock, 108 Iowa 540. In the case of Forbes vs. Thompson, 2 Pennewill, 530, this Court said: “It seems not only illogical, but unwarranted by any rule or canon of statutory construction, to hold that an act passed for the benefit of married women gives the husband the right to sue his wife at law when such power is not clearly conferred by the statute in question.” Our opinion is that the said provision should be construed as clothing a married woman with legal authority to give a bond to another person other than her husband, but as to him she is not in that respect authorized to act as a femme sole. The bond sued upon in this action being invalid from.the time of its execution and delivery, the executors of the deceased husband stand in no better position, in an action at law against the administrator of the deseased wife, than the husband would, if living. We, therefore, order that judgment be entered in favor of the defendant for costs. Note :—The above case was taken to the Supreme Court upon a writ of error, and on January 20,1909, the said Court, consisting of Nicholson, Chancellor, Lore, C. J., and Grubb and Pennewill, J. J., unanimiously affirmed the judgment of the court below.