CLARK, C. J., concurring in result. The defendant was indicted under Revisal, sec. 3367, for wilfully refusing to work certain crops on land "rented" to her by the prosecutor, and for wilfully abandoning the same before paying advances made by her landlord. She was at the time she entered into the contract of renting in 1905 and still is a married woman and lived on the land. Her husband's place of business was in Harnett County (621) but he came home every Saturday night and spent Sunday with his family. On a certain day in June, the prosecutor ordered her to work the crop the next Friday, as it was in had condition, but she refused to do so, as he testified, but she stated that her children were sick and she could not leave them for two weeks, and she told the prosecutor that she would work the crop on the next Monday. He began working the crop on Saturday and on Monday the defendant was in the field and, with others she had employed, was working the crop, when the prosecutor forbade her to work any longer and ordered her to leave the land and not to go on it again. She worked again on Tuesday, when he had her arrested. There was evidence that the defendant managed the business on the farm rented to her by the prosecutor. The defendant requested the Court to charge the jury that there was no evidence of defendant's guilt, and they should acquit her. The jury returned a verdict of guilty. The presiding Judge was too sick to pronounce judgment, adjourned Court and continued the motion for judgment. At the next term judgment of imprisonment for thirty days was pronounced by another Judge after refusing to grant a new trial, on motion of the defendant, who excepted and appealed. The defendant cannot be criminally liable under Revisal, sec. 3367, unless the contract with the prosecutor by which she rented and agreed to cultivate the land was valid and binding upon her. This was decided in S. v. Howard, 88 N.C. 650, as to an infant, whose contracts are merely voidable, and the principle is applicable with greater force to a married woman, whose (622) contracts, as a general rule, are void. In Howard's case, Justice Ashe, for the Court, says: "The case then results in this, that the State seeks by this indictment to hold the defendant amendable to the criminal law for the violation of a void contract. With all due respect to the opinion of those who entertain such a proposition, we must say that it seems to us preposterous." See, also, Bishop on Statutory Crimes (1873), sec. 131; S. v. Plaisted, 43 N. H., 413; Jones v. State, 31 Texas Cr. Appeals, 252; 2 McLain's Cr. Law, sec. 846.
Was the contract of the defendant void? Her general executory contracts, not authorized by the statute, have been held to be void. Mordecai's Law Lectures, pp. 328, 329, and 358. It is also settled that the husband is entitled to the society and to the services of his wife, and consequently to the fruits of her industry. She cannot contract to render those services to another without his consent. Those rights were given to the husband, it is said, because of the obligation imposed by the law upon him to provide for her support and that of their offspring, and the right continues unimpaired so long as the legal duty continues to exist. Syme v. Riddle, 88 N.C. 463; Baker v. Jordan,73 N.C. 145; Hairston v. Glenn, 120 N.C. 341; Kee v. Vasser,37 N.C. 553; McKinnon v. McDonald, 57 N.C. 1; Cunningham v.Cunningham, 121 N.C. 413. There was no evidence that the husband assented to the contract. Nor do we think there is any evidence in this case to show that the contract falls within any of the classes mentioned in the Revisal, sec. 2094, as contended by the Assistant Attorney-General in his able and well-considered argument, so as to take the case out of the general rule that her executory contracts are void. Baker v.Garris, 108 N.C. 218. On the contrary, such facts as we have in this case have been held not to bring the contract of the married (623) woman within the operation of that section. Sanderlin v. Sanderlin, 122 N.C. 1; Clark v. Hay, 98 N.C. 421. It comes to this, that in no view is the alleged contract of the defendant binding upon her, and upon the principle already stated she cannot be held responsible criminally for its breach. The evidence, therefore, discloses that she was not guilty of any offense under the law, and the Court should therefore have given the instruction requested by the defendant's counsel. In the view we take of the case, it can make no difference whether the defendant was a tenant or a cropper. *Page 463
Without intending to discuss the subject or to reexamine the reasons upon which the many decisions of this Court are based with a view of testing their soundness, it may simply be remarked that if we should hold a married woman to be bound by a contract for her services entered into, not only without the consent but against the will of her husband, it might prove disastrous to the marital relation and be productive of a long train of most evil consequences. There should be a clear expression of the policy of the State upon this important question, if there is to be a change, and it will best come from the law-making body.
What we have said about the wife's earnings and the validity of her contracts relates to her general right to contract, rather than to her power to dispose of her property, real or personal. The Legislature has seen fit not to change the law as it has repeatedly been declared to be, although its attention has more than once been called to the matter, and although there have been many sessions of that honorable body since the law was first so declared. We took occasion recently in Ballv. Paquin, 140 N.C. 83, to again direct attention to the subject, but an examination of the public statutes will show that there was no responsive legislation at the last session. It would, therefore, seem to be of the opinion that the Constitution and the statute have been properly interpreted, and that it is wise and expedient to let the law (624) remain as it has been settled by the numerous decisions. We are not at all disposed to question the correctness of this conclusion, as the people, by their Constitution, have appointed the Legislature, and not this Court, to declare and formulate the public policy of the State. We decide what the law is, and not what it should be. We can construe, but not legislate.
We cannot overlook the fact that the motion for a new trial, upon the exception reserved, was not made during the term of the Court at which the case was tried. This is expressly required to be done by the statute, Revisal, sec. 554, and it has been held that it cannot be made after the term has expired. Turner v. Davis, 132 N.C. 187. But it appears in this case that the Judge who presided at the trial was taken ill and could not proceed with the business of the Court. He could not even pronounce the judgment against the defendant. The motion for a new trial could be made at any time before this was done. No laches can be imputed to the defendant. Shall she lose her right to enter her motion for a new trial and to have it heard and considered where there has been no default on her part, but she was prevented from taking the proper steps for that purpose solely by the act of God, which is so treated by the law as to affect no one injuriously? The answer to this question should clearly be in the negative. What, then, is her remedy? We must ascertain from analogous cases. When an *Page 464 appeal had been duly taken, and the Judge had lost his notes, so that the case could not be stated, a new trial has always been ordered, unless the appellant had been negligent. S. v. Powers, 10 N.C. 376; Isler v.Haddock, 72 N.C. 119; Sanders v. Norris, 82 N.C. 243; S. v. Randall,88 N.C. 611; Commissioners v. Steamboat Co., 98 N.C. 163;Burton v. Green, 94 N.C. 215; Owens v. Paxton, 106 N.C. 480; and especially McGowan v. Harris, 120 N.C. 139, where the authorities (625) are collected. Formerly and prior to the enactment of the present provision of the law (Revisal, sec. 591), the rule was held to apply to a case where the Judge had died or his term had expired. So where the plaintiff was prevented from issuing an execution by the act of the County Court in erroneously refusing his application for one, and that Court was afterwards abolished before its error could be corrected by the mandate of this Court, to which an appeal had been taken, it was held that he should not be prejudiced by the error and the subsequent act of the law in abolishing the Court from which the execution would have issued.Isler v. Brown, 66 N.C. 556. See, also, Pell v. Linnell, L. R., 3, C. P., 441; Rex. v. Edwards, 4 Taunton, 309.
In Regina v. Justices, 15 Q. B. (69 E. C. L.), 88, the notice of appeal was not served in time by reason of the respondent's death, and the Court held that the condition of giving notice, annexed to the right of appeal, having been imposed by the law, and performance of it having become impossible by the act of God, the appellant was excused from such performance, and accordingly ordered the appeal to be heard as if the notice had been duly given. And substantially the same ruling was made in Newton v. Boodle, 3 C. B. (54 E. C. L.), 795. There the appellant lost the benefit of a bill of exceptions tendered to the ruling of a Judge at nisi prius, or at the assizes, by the death of the Judge and without any default of his own, and the Court permitted him to move for a new trial, notwithstanding the proper time had elapsed, so that he might be restored to the position he would have occupied if the bill of exceptions had not become abortive by the death of Chief JusticeTindal of the Court of Common Pleas, before it could be sealed and perfected by that Judge who had presided at the trial. The remedy was an adequate and an appropriate one under the practice of the Court at that time. Under our procedure, the remedy must be found (626) in merely ordering a new trial. We need not decide that the case should be treated as if the motion had been made, because it would have been made if the defendant's opportunity for making it had not been lost accidentally and by no fault on his part, or because, further, the Solicitor has agreed with the defendant's counsel upon a case on appeal and has thereby consented that it may be so treated, for even if we should so decide there would appear to be error which *Page 465 necessitates another trial. We simply grant a new trial because the defendant has lost her appeal by an act of God, which she could not foresee and the consequences of which she could not avoid. As said by Taylor, C.J., in S. v. Powers, supra, "under the circumstances, there is no other mode by which the justice of the case can be attained."
Our opinion on the merits has been expressed, thinking that it might end the prosecution unless the facts as now presented are materially changed, which does not now seem to be probable. Where a case must go back for another trial, it is not only proper, but it may be fairly regarded as a duty of the Court to decide upon the legal merits, if it appears that the State cannot ultimately succeed in the prosecution or the plaintiff in the litigation. It prevents the useless expenditure of time and the unnecessary accumulation of costs, and there are other and perhaps weightier reasons for taking such a course.
Why order a new trial unless there was error, and how can we know whether there was error or not unless we examine into the merits of the case?
New Trial.