Schultz agt. Schultz. Nothing of this kind was done in conferring upon a married woman the right to sue and be sued, and if any argument is to be indulged on the question of intention, then the result is in favor of the proposition that the husband was not to enjoy amenity from arrest in any action the wife might bring against him in which the right to arrest was allowed. But without pursuing this subject further, it is considered quite sufficient to say that the language of the statute is, as conceded by some of the learned judges to whose opinions reference has been made, quite comprehensive enough to include the husband as one of the persons against whom the wife may bring an action for an assault and battery, and who has been relieved from liability under the language of the statute only by judicial resort to what is declared to have been the intention of the legislature on the subject. To allow the right in an action of this character, in accordance with the language of the statute, would be to promote greater harmony by enlarging the rights of married women and increasing the obligations of husbands by affording greater protection to the former, and by enforcing greater restraint upon the latter in the indulgence of their evil passions. The declaration of such a rule is not against the policy of the law. It is in harmony with it, and calculated to preserve peace, and in a great measure prevent barbarous acts, acts of cruelty regarded by mankind as inexcusable, contemptible, detestable. It is neither too early nor too late to promulgate the doctrine that if a husband commits an assault and battery upon his wife he may be held responsible civilly and criminally for the act, which is not only committed in violation of the laws of God and man, but in direct antagonism to the contract of marriage, its obligations, duties, responsibilities and the very basis on which it rests. The rules of the common law on this subject have been dispelled, routed—and justly so- by the acts of 1860 and 1862. They are things of the past which have succumbed to more liberal and more just views, like many other doctrines of the common law, which could Schultz agt. Schultz. not stand the scrutiny and analysis of modern civilization. They have gone to that bourne from which no traveler returns; where they must rest forever, undistinguished by a single tear shed over their departure. The order appealed from should therefore be affirmed, with ten dollars costs and disbursements. DANIELS, J., concurs. DAVIS, P. J. (dissenting).· -Several authorities cited by my learned brother BRADY show that it has been adjudicated by the supreme court of this state that actions of assault and battery and of slander cannot be brought by a wife against her husband. Those adjudications necessarily involved the construction of the statute under which the right to bring such an action is now claimed. I think they should be accepted by us (after they have stood unreversed for so many years), until the question is otherwise decided by the court of last resort. There was nothing in conflict with those decisions in holding, as this court did, that in an equitable action for limited divorce on the ground of cruel and inhuman treatment, rendering it unsafe for the wife to live with her husband, he could, on a proper case shown, be arrested and held to abide the judgment, because the nature of the action was one for injury to the person. The order of arrest in such case was in lieu of the old writ of ne exeat, by which the court of chancery held the husband to await its judgment within the jurisdiction of the court. I heartily concur in the unbounded detestation of wifebeaters which my brother BRADY has so forcibly expressed; and I think the legislature might well provide a carefully prepared statute giving direct personal remedies by suit in such cases; but the courts have decided that that has not yet been done, and the doctrine stare decisis requires us to leave to the court of appeals or to the legislature the gallant duty of setting the law free to redress by civil actions all the domestic disputes of husband and wife, whether committed Cross agt. Williams. by unbridled tongues or angry blows. Their rights, however, to such redress ought, I think, to be mutual; and to have due regard to the fact that many acts, words and things that would be assaults and batteries and slanders between other persons, have no such character between husbands and wives. And perhaps some provision should be made allowing reasonable opportunities for the restoration of domestic peace by amicable settlements, free from the liens of litigious attorneys. I must, therefore, in the present state of things, dissent from the conclusion of my brethren. SUPREME COURT. ALFRED F. CROSS and HENRY E. BEGWELIN, appellants, agt. HOLLAND B. WILLIAMS, late sheriff of Steuben county, respondent. Sheriff-Executions - Action against a sheriff for a false return - What may be set up as a defense. In an action against a sheriff for an alleged false return (of no property) the sheriff gave evidence tending to show that before the plaintiff's execution was received, his other executions had been delivered to him upon prior judgments for an amount exceeding the value of the property, the title to which was claimed by plaintiffs to be in Cross against whom the executions were issued. The three executions were all returned on the same day before either of them had run out. It was not shown that the sheriff had collected anything on either of them : Held, that if the sheriff made a fair honest effort to determine whether Cross had any property on which he could levy and could not find it, he was justified in making his return. Held, also, that the sheriff would have been bound to apply the avails of the property to the payment of his several executions in the order of their priority. Held, further, that the law in regard to calling a sheriff's jury was not applicable to this case. Fourth Department, General Term, April, 1881. Before TALCOTT, P. J., SMITH and HARDIN, JJ. Cross agt. Williams. APPEAL from a judgment, entered on a verdict rendered at the Steuben circuit, in an action brought to recover damages against the defendant, as sheriff of Steuben county, for a false return (of no property) of an execution, directing the sheriff to levy $181.42 damages and costs, with interest from June 6, 1876, besides sheriff's fee, &c., and returned by him unsatisfied. D. M. Page, for appellant, cited Paton agt. Westervelt, (2 Duer, 362); Town agt. Crowder (2 Cas. & P., 356); Johnson agt. Reilly (59 How. Pr., 354); Horton agt. Hendershott (1 Hill, 118); Handly agt. Greene (15 Barb., 601); Stebbin agt. Cooper (4 Denio, 191). I. W. Near, for respondent, cited Watson agt. Brennan (66 N. Y., 621); Code of Civil Procedure, sec. 102; Wehle agt. Connor (69 N. Y., 546); Gains agt. Downes (Harper [So. Car.], 49); Smith agt. Hogan (4 Ala., 93); Hopkins agt. Grinnell (28 Barb., 537); Murphy agt. People (4 Hun, 102); McFadden agt. Kingsbury (11 Wend., 667); Mumford agt. Bowne (Anthm., N. P., 40); Tuker agt. Walsh (17 Mass., 160, 165); Spiers agt. Willson (4 Cranch, 398). SMITH, J.-The action is for an alleged false return of nulla bona to an execution, issued to the defendant as sheriff upon a judgment in favor of the present plaintiffs against James B. Cross. There was a conflict of evidence on the trial as to whether certain personal property which the plaintiffs claimed belonged to Cross, was in fact his, or whether he had parted with the title to it. That question was submitted to the jury. The defendant gave evidence tending to show that before the plaintiffs execution was received by him, two other executions had been delivered to him upon prior judgments against Cross, for an amount exceeding the value of the above mentioned property, the title to which was claimed by the plaintiffs to be in Cross. Cross agt. Williams. It appeared that those executions, as well as the plaintiffs, were returned nulla bona on June 10, 1876, before either of them had run out. It was not shown that the defendant had collected anything on either of them. The judge instructed the jury that if they should find that the property belonged to Cross, they were then to inquire whether the defendant made a fair, honest effort to determine whether Cross had any property on which he could levy, and that if he made such effort to discover property and could not find it, he was justified in making his return. He also charged that if Cross owned the property the plaintiffs were only entitled to recover such amount as would have remained after applying the proceeds of the property to the satisfaction of the prior executions. To the last proposition the plaintiffs excepted. The plaintiff's counsel asked the judge to charge the jury in regard to the law in respect to the sheriff calling a jury; also, that having returned the execution on the tenth of June, the sheriff could have levied on the property without being charged with the duty of applying it on the prior execution, also, that the prior executions constitute no defense until the property is absorbed by a levy and sale under them. Each request was declined, and the plaintiffs duly excepted. We are of the opinion that there is no merit in either of the exceptions. The sheriff could have been bound to apply the avails of the property to the payment of the several executions in the order of their priority. The case would have been different, if when he returned the prior executions, he had retained that of the plaintiffs, and property of the judgment debtor had then or subsequently been in his hands. That was the case in Paton agt. Westervelt (2 Duer, 362), cited by the plaintiff's counsel. The law in regard to calling a sheriff's jury was not applicable to the case (Sammis agt. Kasson 43 Barb., 373; Dolson agt. Saxton, 11 Hun, 565). The appellant's counsel insists that there was no proof that the prior executions were issued on valid judgments. The objection was not made at the trial. Had it been raised |