
    SUPREME COURT—IN BANCO.
    JULY TERM—1879.
    
      Harris, C. J., Judd and Me Cutty, J.J.
    
    Maa, w., and Manuhii, her Husband, vs. Leiau, w., Administratrix of the Estate of Kalua, k.
    ON APPEAL FROM INTERMEDIARY COURT OF OAHU ON BOINT OF LAW.
    Money loaned by a married woman during coverture, cannot be recovered in an action by the widow.-after the husband’s death.
    The debt not being in law due the widow, it is not revived to her by a promise to pay it.
   Opinion of the Court by

Mo Cully, J...

This appeal from the Intermediary Court of Oahu to the Court in Banco presents the following case. In the year 1858 the plaintiff Maa, being then the wife of one Kekai, since deceased, loaned Kaiua, whose estate is represented by defendant, $75, of money which she considered her own property, as it was in her own possession. "We are not informed of the origin of this money, whether by gift or her earnings, but it is not claimed that she acquired or held it or made the loan under the provisions of the law found in Sections 1292 and 1298 of the Civil Code, by which a married woman, whose husband has left the Kingdom without making sufficient provision for her maintenance, may be empowered to make contracts, sue and be sued, as if she were a feme sole. The debt remained, without payment of interest, but was revived by Kalua’s promise to pay it made in November, 1878. The first question for adjudication is whether this is a debt due Maa during coverture, that is a chose in action belonging to her, never reduced into possession by her husband, and surviving to her, or whether Maa’s money was the money of her husband, and the right of action belonged to him and after his death to his executor or administrator, until barred by Statute of Limitations.

Our statute fixing the rights of husband and wife in property is Section 1285 of the Civil Code, which provides inter alia that “The husband shall in virtue of his marriage and in consideration of the responsibilities imposed on him by law be the virtual owner, except otherwise stipulated by express marriage contract, of all movable property belonging to his wife anterior to marriage and of' all movable property accruing' toiler after marriage, over all which movable property he shall, unless otherwise stipulated by contract, have absolute control for the purposes of sale or otherwise, and the same shall be equally liable with his own for his private debts.” This clause is quoted in Hasslocher vs. Executors of Robinson, 3d Haw. Rep., 805, with the observation, “This enactment is the common law on this subject.” The common law authorities will therefore control the point.

Blaekstone (Com. H, 435), after stating the law with regard to chattels real and choses in action, says, “but as to chattels personal (or choses) in possession, which the wife hath in her own right, as ready money, jewels, household goods and the like, the husband hath therein an immediate and absolute property devolved to him by the marriage, not only potentially but in fact which can never again revest in the wife or her representatives.” In Chase vs. Palmer, reported in 25 Maine, 341, the wife received in money her distributive share of her grandmother’s estate, it was paid to her directly, was never in the hands of her husband, but at her instance and with the assent of her husband, her brother purchased and held in trust for her, a subsisting first mortgage on their own homestead. It was held by the Court that this mortgage had In effect been discharged by the funds of the husband, that is, by the wife’s money.

In Com. vs. Manly et al., 12 Pick., 173, the Administrator gave a married woman a promissory note for the amount of her share of her father’s estate, made payable to a third party and by him endorsed to her, in order that she might have the same for her own use notwithstanding her coverture. In an Indictment for conspiracy against the defendant for obtaining possession of her property, to wit, this note, the Court instructed the jury that a note given to a feme covert for her separate use was legally her property until reduced to possession by her husband. On exception to this charge the Court, Morton, J., held that the consideration of the note was the property of the husband and' that of course the note itself must be his, for he could not be divested of property or his rights by any acts of his wife or others without his authority or consent. That the moment the note was endorsed to the wife it became tbe property of tbe husband and be alone could collect, discharge or transfer it. In tbe same ease tbe Court says, “ So even tbe earnings of tbe wife so entirely belong to'the busband, tbat he only can give a discharge for them and must sue for them in bis own name without joining bis wife.”

In Ohver’s Precedents, page 65, it is laid down tbat a declaration for money “lent by busband and wife ” after marriage will be bad, and judgment will be arrested for tbat cause after verdict; tbe declaration is false, because she can have no money after marriage, and tbe conclusion to their damage “vitiates tbe action.”

See also Russell vs. Brooks, 7 Pick., 65; Keith vs. Woombwell, 8 Pick., 211; Jordan vs. Jordan, 52 Me., 330; Carleton vs. Hale, 10 Pick., 428; Savage vs. King, 17 Me., 301; Ames vs. Chew, 5 Met., 320; Hinman vs. Parkes, 33 Conn., 188; Burligh vs. Foster, 119.

Tbe foregoing authorities are all in harmony with tbe doctrine of Blackstone tbat ehoses in action of tbe wife, not reduced to possession of tbe busband during coverture belong to the wife. This Court, in Hasslocber vs. Executors of James Robinson, held tbat tbe busband could not be compelled to exercise bis marital rights of reducing tbe wife’s ehoses in action to possession for tbe purpose of subjecting them to tbe claims of creditors. Tbe argument of plaintiff’s counsel based on this case was on .the assumption tbat when the wife had loaned her money tbe chose in action was hers, but it must follow from the above cited cases tbat this money was in possession of tbe busband when it was in the bands of Maa, bis wife, and tbat tbe loan was made by her as her husband’s representative and became a debt due him, and not her, and she could not even have been joined with him in an action to recover it/

Castle & Hatch for plaintiff.

A. S. Hartwell for defendant.

Honolulu, October 15, 1879.

The debt not being in law due the widow, is not revived to her by a promise to pay it.

Judgment for defendant.  