Le Beau v. Trudeau

Porter, J. delivered the opinion of the court. The plaintiff claimed $681 on an open account. The defendant pleaded the general issue. The cause was submitted to a jury, who found a verdict for the petitioner for the sum of $261. The defendant appealed. This sum of $261 was for the board, washing and lodging of the wife of the defendant from the 4th of January to the 25th. of June 1820, and was incurred in consequence of an order given by the judge, of the fourth district in an action in which the daughter of the [94] plaintiff had sued the present defendant, for separation from bed and board. It was directed that she should remain in the house of appellee and that one dollar and fifty cents be allowed her until the termination of the suit. East’n District. March, 1823. The defendant requested the judge to charge the jury; that the wife of Le Beau having failed to maintain her action for separation from bed and board, the present plaintiff had no right to maintain this action for her support. The judge refusing to do so, his opinion was excepted to. We do not think the judge erred. There is nothing in the law which directs this provision for the wife during the pendency of the action for bed and board to be conditional on her success. Whether separated from the husband or not, she has a right to subsistence, and until sentence pronounced, it is the duty of the husband to furnish it. He is the head of the community, and its revenues are in his hands for this purpose. The only condition which the law has added is, that the wife shall prove she constantly resided in the residence assigned her; and this condition it is contended has not been complied with in this case. Two witnesses prove that the plaintiff res [95] ided constantly at the place fixed by the judge, with the exception of a short visit she made to Baton Rouge. Carleton for the plaintiff, Dumoulin for the defendant. We are of opinion that a short visit, such as was proved here, does not deprive the wife of her right of daily allowance. It is impossible to understand the law to mean, that she must never quit the house assigned her, for then the place of her residence would be converted into one of imprisonment. We do not think that a person who furnishes subsistence to the wife requires an assignment from her to maintain an action against the husband; and, on the whole, we are of opinion that the judgment of the court below be affirmed with costs.