dissenting: I do not assent to the judicial repeal of the old rule of the law, that the husband is liable for the torts of the wife committed during coverture.
The assumed foundation of the rule is not all removed yet. A part of it, to-wit, that whatever accrues to the wife by her labor belongs to the husband, for the most part, yet remains. The act which entitles a married woman to her earnings, expressly denies to her any right to compensation for any labor performed for her husband or minor children.
Of this description chiefly are the services of married women; any other are exceptional.
As to the husband’s right to the services of his wife being one of the assigned reasons of his liability for her acts and obligations, see 2 Bac. Abr. 33, title Baron & Feme (F); Tyler on Infancy and Coverture, 333.
But are these assumed reasons of the husband’s liability, namely, his rights in the wife’s property and to her labor, the sole ground of the liability?
Blackstone lays it doivn that, “By marriage, the husband and wife are one person in law. * * Upon this principle of a union of person in husband and wife depend almost all the legal rights, duties and disabilities that either of them acquire by the marriage.” 1 Black. Com. 441-2.
“If the wife be indebted before marriage, the husband is bound afterwards to pay the debt, for he has adopted her and her circumstances together.” Id. 442-3.
Because the legislature has seen fit to interfere with this unity of person, so far as to allow the wife the enjoyment of her separate property, and to have her earnings to a limited extent, it does not follow that the courts should annul it in all other particulars.
Mere it a question before the body whose province it is to alter the law, reasons of public policy-might suggest themselves to the legislative mind, to let the rule making the husband answerable for his wife’s misbehavior remain undisturbed, as established in the wisdom of the common law.
. One remedy, which our law has provided for torts, is imprisonment on execution. But a wife is not liable to be imprisoned for a private wrong without her husband. 2 Kent’s Com. 149; 3 Black. Com. 413; Reeve’s Dom. Relations, 145.
This remedy, then, will be unavailing where a wife is a tortfeasor, if the husband be exempted from liability.
As the acquisitions of the joint industry of husband and wife belong to the former, we may expect it to be the exception, rather than the rule, where there will be found separate estate belonging to the wife, to be reached by execution.
This will make the remedy, by recovery of damages by suit against the wife alone, of little worth.
Thus the abrogation of the law in question leaves the party who may receive injuries at the hands of a married woman practically remediless. It will so be that she, in most'instances, may commit private wrongs with legal impunity, and wives will be made, as it were, licensed wrongdoers. A weakening effect will be produced in the respect of family government, which is a powerful aid to that of the State, in the maintenance of civil order.
There will no longer be the motive of pecuniary interest on the part of the husband to induce him to exercise a salutary influence in promoting good conduct in the wife, and in restraining her from the commission of wrongs.
As bearing upon the subject in hand, the following remarks of Lord Chancellor Talbot, in the case of Heard v. Stamford, 3 Peere Williams, 410-11, are not unworthy of regard : “I do not see how anything less than an act of Parliament can alter the law. * * * If the law, as it now stands, be thought inconvenient, it will be a good reason for the legislature to alter it; but till that is done, what is law at present must take place.”
Enough of uncertainty is being brought into our laws by the regularly ordained law-making power in the exercise of its functions. The evil of the law’s uncertainty is aggravated where the continuance of the ancient principles of the law is made dependent on mere judicial discretion.
Mr. Justice Scott : I concur with Mr. Justice Sheldon.
Mr. Justice Beeese : I concur in the views expressed by-Mr. Justice Sheldon.