(dissenting.) The single question presented in this record is whether or not a husband is liable for the debts of his wife contracted dum sola, next preceding her marriage to him. It is, of course, admitted that he is liable at common law, and also that in this state we have no express statute changing the common-law rule. The contention here is, on the part of appellants, that the reason for the common-law rule has been taken away, and that, the reason for the rule having ceased, the rule ceases also. Therefore the first inquiry is as to what was the reason for the rule under which the husband was held liable.
Tyler, in his work on Infancy and Coverture, pages 332 and 333, accurately and concisely states the reasons for the rule thus: “The principle upon which the husband, at common law, is liable for the debts of the wife contracted dum sola is, not that he received property from her, for the circumstances of his having received property from her does not increase his liability, nor the fact that he received no property by her diminish such liability; nor is the liability based upon the idea that he is a debtor; but the real ground of this liability is that the wife, by her marriage, is entirely deprived of the use and disposal of her property, and can acquire none by .her industry. The personal property of the wife passes absolutely to the husband, and he is entitled to the use of her real estate during coverture,, and her person, labor and earnings belong unqualifiedly to him.” The contention of appellant is that none of these reasons still exist with us, but that our more recent laws, superinduced by our changed condition and circumstances, have entirely done away with each and every reason of the common-law rule, and that therefore the rule should cease to be with us. Section 7, art. 10 of the constitution of the state, and sections 4945, 4946, 4947, 4948, 4949, 4951, 4957, 4958, 4959 and 4960, Sandél’s & Hill’s Digest. If there is anything in the idea that the wife is protected from suit by her marriage, then, as all the property which is acquired both before and after marriage is made her separate property, the rule that she can sue and be sued in reference thereto applies to her generally, for all practical purposes. If this constitutional provision and these and other statutes incidentally bearing on the subject have, as is contended, taken away the reasons for the existence of the rule, then it is needless for us to speculate upon the mere advantages or disadvantages, the policy or impolicy, of the rule; for, when a law is repealed, expressly or by implication, whether or not it was a good law is no longer a question.
- The’wife, in this state, is no longer deprived, entirely or in any degree, of the use and disposal of her property; and she is at. liberty to acquire property by her industry as if she were a femme sole. Her personal property does not now pass to her husband on her marriage to him, absolutely, or in any sense of ownership, nor is he entitled to the use of her real estate during coverture; and, finally, she retains all that she brings to him, or may acquire after their marriage, and this is all made'subject to the payment of her debts, and he is relieved.
The statement that, since the rule which makes the husband liable for the wife’s torts is the same as that which makes him liable for antenuptial debts, and is based upon the same reason, and since the recent laws and statutes affecting the property rights of married women are not regarded as affecting any change in the law which makes the husband liable for the wife’s torts, therefore these laws cannot be regarded as producing any change in the rule which makes him liable for her antenuptial debts, is partly correct and partly incorrect. It is correct when applied to her torts committed before marriage, but entirely incorrect when applied to her torts committed during coverture. There is not a particle of difference in the reason which makes the husband liable for her antenuptial debts and that which makes him liable for her antenuptial torts. Both are obligations she has imposed upon herself while single; and necessarily, for identically the same reasons and no other, the husband is liable in both instances. Hawk v. Harmon, 5 Binn. (Penn.) 43.
But, while it is true that the hushand is liable for the ante-nuptial torts of the wife, as he is for her antenuptial debts, and for the same reason, the same is not said of her torts committed during her coverture with him; for, while he is bound for her postnuptial torts, it is not because he is the owner and controller of her property, or of her labor and industry, but he is liable for the simple reason that he is her husband, and is therefore responsible for her personal conduct, except under peculiar circumstances. The rule in the two instances is founded on different principles; for, while the one is based upon property rights only, the other is primarily based upon the idea of personal unity and personal control of the wife’s actions as the stronger of the two constituents of the union, and the owership and control of property and of the proceeds of labor and industry are only incidentally involved, if at all. The distinction will the better appear in the doctrine that, “to hold the husband liable for antenuptial torts of the wife, she must be a wife de jure; whereas, to hold him liable for her torts committed during coverture, it is only necessary that she be a wife de facto. Overholt v. Ellswell, 1 Ashmead, 200. This is sufficient to show -that the reasons for the rule that makes the husband liable for the antenuptial contracts and torts of the wife are not the same as for the rule that makes him liable for her postnuptial torts, the latter having the element of coercion, and the idea of mastery of the husband over the wife, in them.
It is contended that in New York, where the statutes are identical with our own on the subject of the property rights of married women, the courts hold that the common-law rule has not been repealed by these statutes. The early statutes of this state were almost literal copies of those of New York on this' and' other kindred subjects, but our more recent statutes and constitutional provisions have no connection with or likeness to the New York statutes, new or old. In 1848, a statute was passed in that state in effect giving to every female who should marry all the real and personal property owned by her at the time of her marriage, as her sole and separate property. In 1853 another statute was passed, limiting the husband’s liability for the wife’s debts to the property he had by her. In a case arising after the act of 1848 was passed and before the act of 1853, the supreme court said: “If the rule of the common law, by which the husband is made liable for all the debts of the wife contracted by her before marriage, rested solely upon the transfer to him (which the marriage effects) of all the personal property of the wife, there would be great force in the argument that the act of 1848, by preventing his acquisition of the property of the wife, has discharged him from his liability for her debts. The case might then not unreasonably be held to fall within the purview of the very sensible maxim that, ‘Cesscmte rations, cessat etiam lex.’ • But it is manifest, upon a very slight consideration of the authorities, that the acquisition by the husband of the property of the wife is not the sole foundation of his common-law liability for her debts, although it may justly be urged as mitigating in some degree the severity of the rule. His liability, it is certain, is absolute and unlimited, without any reference whatever to the property which he acquires, or to which he may become entitled. It exists even when the wife, at the time of the marriage, has no property at all, present or future, or when that which she then possesses, or to which she ■ may become entitled, is settled to her sole and separate use. We cannot therefore say that the fact or extent of his liability is at all affected by the provisions of the act of 1848.” Berley v. Rampacher, 5 Duer, 186.
Had that court been considering, the case in the light of our statutes, which, we have seen, do away with any possible reason assigned for the existence of the common-law rule, and followed in the same course of reasoning, is it not indisputable that it would have held that the sensible maxim, “ Oessante ratione, cessat lex,” was exactly applicable? So the New York decisions, in reason, are certainly in support of the contention of appellant.
To sum up, I think that our more recent laws have shorn the common-law rule that the husband is liable for the ante-nuptial debts and antenuptial torts of the wife of every particle of reason upon which it was based, while this is not the case as to the wife's postnuptial torts, and therefore I am of the opinion that the judgment in this case should have been reversed.