Schultz agt. Schultz. that he thought that such was not the meaning and intention of the legislature, and should not be the construction given to the act, for certain reasons which he assigned-one of which was that it was contrary to the policy of the law and destructive of that conjugal union and tranquillity which it has always been the object of the law to guard and protect. And he said that the act of 1862 conferred the power to sue and be sued in somewhat broader terms than those contained in the act of 1860, but not in the manner he thought, to lead to the implication that the husband was intended to be permitted to be sued by the wife for injuries to her person and character, as in an action for assault and battery or slander. It is not regarded as discourteous to say that the illtreatment of the wife by the husband, which consists in the violence of an assault and battery, is more destructive to conjugal union and tranquillity than the declaration of a right in the wife to maintain an action against her husband for an assault and battery upon her would be. It is not at all unlikely that it would operate as a restraint upon militant husbands disposed to indulge in such evidence of conjugal union and tranquillity. No husband either by the laws of God or man, in any civilized community, has the right to abuse his wife, although it was perhaps recognized in earlier times as a principle of the Saxon law, and was as contemptible as it was barbarous. But that view no longer prevails. If the husband be disposed to indulge in violence against his wife he should be restrained by all the rules designed to prevent brutality. This class are the only persons who would be affected by the enunciation of the right of a wife to maintain such an action. Men who have no kindred propensities would not fail to recognize the rule as a just one. It would be a condemnation of barbarous acts, as well as an expression of the right to indemnity for their commission. In the case of Perkins agt. Perkins (reported in 62 N. Y., 531) it was declared that a husband could not maintain an Schultz agt. Schultz. action at law against his wife to recover pay for services rendered, no more than he could before the acts under consideration were passed. The learned justice who delivered the opinion in that case exhibited his devotion to the common law doctrine which prevailed in this State prior to the passage of the acts mentioned. He said that "at common law the husband and wife, when married, became one person." The very being or legal existence of a woman was by the common law suspended during the marriage, or at least was incorporated and consolidated into that of the husband under whose wing and protection she performs every act. It may not be improper to say that she could not derive any particular benefit from being under the wing and protection of a husband who commits an assault and battery upon her. It may possibly be that the husband, in performing such an act, designed to exercise in anticipation all the privileges that might be assumed by any man over a woman, and by committing it to anticipate as well a similar act by any other person, and from the proud consciousness of being the absolute possessor of the woman to whom he was united by the marriage tie. It may possibly be that this incorporation and consolidation spoken of is of such a character that any husband beating his wife must necessarily beat himself. This is certainly a logical result. These statutes, it was also declared, were in derogation of the common law, and were to be construed with reference to that law as it existed when they were passed. The answer to this is, the object of these statutes was to invade the common law, and dispel it, which they have successfully done. If the common law was to be preserved, then it was not necessary to pass any statutes in reference to the subject. The statutes were presumably intended to overcome in many respects the disability which the common law had created, and to remove the impediments by which married women were surrounded and their rights subverted. The learned justice admits that the statute of 1862 conferred in general terms uvon a married VOL. LXIII 24 Schultz agt. Schultz. woman the power to sue and be sued, in all matters having reference to her sole and separate property, and also to recover damages for injuries to her person, which damages, he stated, prior to the passage of the act belonged to her husband. Then giving evidence of the influence upon his mind of the rules of the common law, to which he so frequently refers, he concluded by saying that until the highest court of review should determine otherwise, he felt bound to hold that the unity of person created by the marriage contract between the husband and wife had been no further severed than the statutes, in express terms or by necessary implication, had effected that purpose. It is respectfully insisted that the statute of 1862 conferred in express terms the right to maintain an action against any person for a personal injury and by implication, if implication was necessary, to be invoked against her husband, who has no more right to beat her than a stranger. The marriage tie conferred no such power, no such right aud no such privilege. It is, on the contrary, founded or supposed to be if not in fact upon the proposition of love and affection, which would not only repudiate but look with abhorrence upon any such treatment. In the case of Berdell agt. Parkhurst (reported in 19 Hun, 358), however, it was held, in the second district, that a husband might maintain an action at law against his wife to recover property belonging to him which had been forcibly seized and carried away by her. The learned justice who delivered the opinion in that case said, "the plaintiff is entitled to his own property and so is his wife. He can bring an action for a conversion against anyone who violates his right to have and possess his own property, unless his wife be a person excepted by the relation of husband and wife. She has the same right of action against all trespassers, unless her husband is the sole exception." And he further said: "It has been decided that a wife cannot sue her husband for slander, nor for assault and battery, nor for wages," Schultz agt. Schultz. referring to the cases which have been cited herein and criticised; and also the case of Shuttleworth agt. Winter (55 N. Y., 628), which has no bearing upon the subject under consideration. No reference is otherwise made to the acts of 1860 and 1862 in the opinion of the court. In the case of Jamieson agt. Jamieson (reported in 11 Hun, 38, and decided in this district and in this court) it was held that in an action by a wife for a limited divorce on account of cruel and inhuman treatment by her husband, an order of arrest could be maintained under section 179 of the Code, and there is no substantial difference between that section and section 549 of the Code of Civil Procedure, to which reference has been made. They both provide for orders of arrest in actions for a personal injury. The learned justice who delivered the opinion in that case said that the relief in the action must be strictly equitable, but that there was nothing inconsistent between that fact and the fact that the action was for an injury to the person. That the cause of action as alleged, and as required by the title relating to divorces of the kind sought, sprang out of direct personal injury by the husband of his wife, which must be of such a character as to prove cruel and inhuman treatment, or such conduct on his part as to render it unsafe and improper for her to cohabit with him. And further, that upon the facts alleged the acts of the husband were in part criminal assaults and batteries frequently repeated, and which inflicted serious injuries upon the person of the plaintiff, which injuries gave her the right of action for the remedy which she pursued, and that her cause of action might be properly described in the language of the Code as one of pure injury to the person. If so, the right of arrest against the defendant was given by section 179 of the Code, on showing that the cause of action existed in the manner described. This case, therefore, decides that in an action equitable in its character, resort might be had to a provision relating to actions at law for an injury to the person, to secure the application of a provisional remedy, Schultz agt. Schultz. namely, the right to arrest, and as the right to arrest is predicated in that case of the assaults and batteries committed, and which could not be resorted to except in an action relating to them, no difference in principle is discovered between that action and the present, except in the prayer for judg ment. In an action for limited divorce, the plaintiff, if successful, would obtain a decree of separation and also a money judg ment directing the support and maintenance of the wife. The court would in such a case order the payment of a sum of money for the support and maintenance of the wife, unless there was some special circumstance in the case which would prevent such a decree. The legislature did not fail in the laws passed in 1848 and 1849 to exclude the husband from transactions with which it was deemed just or proper he should not be connected, and it was accordingly provided that any married woman might take by gift, grant, devise or bequest from any person other than her husband, and hold to her own use, &c. If the words other than her husband had not been inserted the act would have authorized the gift or grant from the husband directly, and this was foreseen and prevented because it was not then so intended. In the act of 1860, (supra), by the seventh section the right was given to any married woman to sue and be sued on all matters having relation to her property which might be her sole and separate property, or which might thereafter come to her by descent, devise, bequest or the gift of any person except her husband, in the same manner as if she were sole; but in the amendatory act of 1862 (supra), the words except her husband were omitted, thus removing all restrictions and giving a right unlimited. These features of legislation in the state on the subject of a married woman's disabilities arising from the strict rules of the common law, are referred to only for the purpose of showing that when the husband was to be excepted from the provisions expressed, it was so declared. The legislature, therefore, proclaimed its own intention in its own form. |