Murray et al. v. Keyes et Ux.
| Decision Date | 01 January 1860 |
| Parties | Murray et al. versus Keyes et ux. |
| Court | Pennsylvania Supreme Court |
C. P. & G. G. Waller, for the plaintiffs in error.
E. Wheeler, for the defendant in error.
This was an action of assumpsit against Keyes and wife, brought with a view of charging her separate real estate with the payment of the debt due to plaintiffs.
The husband was properly joined, but the original narr., which contained only the ordinary money counts, was wholly insufficient to affect the wife's separate estate. In general, she is not liable for debts contracted during coverture. The instances in which she is liable are exceptional, and are specified in the proviso to the 6th section of the Married Woman's Act of 11th April 1848, and in the 8th section. A plaintiff who seeks to charge her estate should bring his case within some of the exceptions. Where the declaration contains no averment respecting the origin of the debt, the plea of coverture is a good defence of the wife. If the plaintiff wishes to avoid its effect, he must set forth in a replication the special circumstances which make the wife liable, notwithstanding her coverture, or amend his declaration so as to set forth those circumstances: Mahon v. Gormley, 12 Harris 83.
The paper-books in this case, which seem to have been prepared in ignorance or disregard of the rules prescribed and published in 6 Harris 578, contain no pleadings whatever; but upon going to the record we find that there was a plea of coverture to the original narr., and, after an award of arbitrators in favour of the plaintiff and an appeal therefrom by the wife, but not by the husband, an amendment of the declaration, charging in one count that plaintiffs' goods, wares, and merchandise were "furnished to said defendants, at their special instance and request, such goods, wares, and merchandise being articles necessary for the support of the family of said defendants;" and also in another count "the further sum of $600 for a debt contracted by said defendants with the said plaintiffs in the management and care of the property of said Abigail Keyes, wife of John Keyes, and for her use and benefit."
The court below was of opinion that the evidence did not bring the plaintiffs' case within any of the exceptions to the statute. We not only concur with the learned judge, but we cannot construe the statute with reference to these exceptions, without saying that the pleadings, as well as the evidence, failed to make out a case for charging the wife.
The proviso to the 6th section was drawn into construction in Heugh v. Jones, 8 Casey 433, and in the case of Bear's Administor v. Bear, Id. 525. See also Glyde v. Keister, Id. 88.
And we think the effect of that proviso is not changed by what is contained in the 8th section of the act; for though the enacting clause of the 8th section would seem to make the wife's estate liable to an alias execution, "in all cases where debts may be contracted for necessaries for the support and maintenance of the family of any married woman," whether they were or were not "contracted by herself or in her name by any person authorized so to do;" yet the proviso to this 8th section is that "judgment shall not be rendered against the wife, in such joint action, unless it shall have been proved, that the debt sued for in such action was contracted by the wife, or incurred for articles necessary for the support of the family of the said husband and wife."
As this last clause of the proviso, repeats the very contingency contemplated in the enacting clause, except only that the family is described as "the family of the husband and wife," instead of "the family of any married woman," it is, as a proviso, insensible. It excepts nothing out of the enacting clause, unless we can extort a difference of meaning from the two phrases descriptive of the family. And we cannot. The family of a married woman might perhaps be held to refer to a family whose husband had absconded, or was living apart from his wife; but then that expression occurs in a clause which requires them to be sued jointly, and which contemplates a joint proceeding, and a levy on her estate only after execution process against him has been returned unsatisfied. It is scarcely possible that the...
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