Schwartz v. Reesch

Mr. Chief Justice Alvey delivered the opinion of the Court:' The general common law rule applicable to a feme covert which denies to her the right to maintain a common law action without the joinder of her husband, remains in force; [445] but that general rule, like many others of common law origin, has had engrafted upon it from time to time, several well defined exceptions. These exceptions have been the product of improved conditions of society, and the necessities of destitute wives, and have been introduced by the courts to avoid the cruel and degrading consequences to the wife of the neglect and desertion of the husband. As instances of this, if the husband be banished or exiled, or has abjured the realm, or be a foreigner residing abroad apart from his wife, whom he has refused to support, such conditions, from the necessity of the case, introduced exceptions to the general rule of the wife’s disability to contract; and, in such exceptional cases, she has been held capable of contracting, and of suing and being sued as a feme sole. In such cases, both the wife and her creditors would be remediless, without such exceptions to the general rule. 2 Kent Com., 154. Lord Coke states the exceptions to the general rule that had been recognized by the courts down to his time, in Co. Litt, 132b; but such exceptions have been extended since his day. It is easy to see, says Chancellor Kent, “that there might be most distressing cases under this principle, for though the husband be not an alien, yet if he deserts his wife, and resides abroad permanently, the necessity that the wife should be competent to obtain credit, and acquire and recover property, and act as a feme sole, exists in full force. It is probable that the distinction between husbands who are aliens, and who áre not aliens, cannot long be maintained in practice, because there is no solid foundation in principle for the distinction.” 2 Kent Com., 156-7. And the learned commentator refers to the case of Bean v. Morgan, 4 McCord’s Rep., 148, where it was held, that if the husband departs from the State, with intent to reside abroad, and without the intention of returning, his wife becomes competent to contract, and to sue and be sued as a feme sole. The same principle was adopted in the case of Gregory v. Pierce, 4 Metc., 478, where it was held that if the husband deserts his wife, absolutely and completely, by a [446] continued absence from the State, and with an intent to renounce de facto the marital relation, the wife may sue and be sued as a feme sole. And the period of desertion is important only as it may be indicative of the intention of the husband to make his desertion permanent or otherwise. The same principle would seem to be the established law of this District. In the case of Rhea v. Rhenner, 1 Pet., 105, a case taken to the Supreme Court of the United States from the Circuit Court of this District, it was held, that when the wife is left by the husband without support, and she has traded as a feme sole, and has obtained credit as such, she ought to be held liable for her debts; and that the law is the same, whether the husband is banished for his crimes, or has voluntarily abandoned his wife. The replication to the third plea alleges that the husband wilfully deserted and abandoned the plaintiff, and has hitherto continued such . desertion, and the plaintiff does not know the whereabouts of the husband, and that he has not contributed anything to her support, and that she has been compelled to support herself by means of business which she has conducted as a feme sole trader. She alleges that she has carried on such business partly with property belonging to her husband, left in her possession at the time of ■his desertion of her, and partly with property acquired by her own- efforts and exertions since such desertion by her husband. The property of the husband left in possession of the wife must be taken to have been intended as a means of support of the wife and her family; and to render such means available, it must be taken and intended to have been coupled with power of disposition. This was a question of intention to be passed upon by the jury. And so as to the allegation that the husband had wilfully deserted and abandoned the ‘plaintiff, it must, after verdict, be intended that the husband had deserted the wife and abandoned and renounced this jurisdiction. Upon motion in arrest of judgment, the plaintiff is entitled to every intendment of law that can be reason [447] ably made in support of the verdict. Everything that the defendant could object, will be presumed to have been made and urged at the trial, and it must be intended that they were overruled. Merrick v. Bank of Metropolis, 8 Gill, 59, 75. Or, as stated by Sergeant Williams, in his note to the case of Stennel v. Hogg, 1 Wms. Saund., 228, “ that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer; yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict, by the common law; or, in the phrase often used upon the occasion, such defect is not any jeofail after verdict.” And he cites many cases, and gives a great number of illustrations, in support of the principle stated. We are of opinion that, upon the application of this principle of intendment, the verdict is sustainable upon the pleadings in the cause, and therefore the motion in arrest was properly overruled, and the judgment must, consequently, be affirmed. Judgment affirmed and record remanded.