
    John E. Perkins vs. Christina Perkins.
    All the recent statutes of this State, for the protection of married women, in their estates, being in pari materia, are to be construed as one, in their letter, spirit and intent, precisely as if they were contained in one act. Per Potter, J.
    The new powers, conferred on married women, by these statutes, were in derogation of the pommon law, and are to he strictly construed. Per Potter, J.
    The unity of persons created by the marriage cbntract, between husband and wife, has been no further severed, by those statutes, than the statutes in express terms, or by necessary implication, have effected that purpose.
    A husband cannot, since those statutes were passed, maintain an action at law against his wife, to recover pay for services rendered, any more than he could before.
    The statutes of 1848 and 1849 were passed to enfranchise married women, and to protect their property, and not to protect, or extend rights to, their husbands. Per Potter, J.
    Interpreting those statutes, together with the statute of 1862, as being in pari materia,.Bs if all were contained in one act, husbands are excluded from their provisions.
    The husband being, by the common law, under a disability to sue his wife, the act of 1862, declaring that the wife “ may sue and be sued," is not broad enough to release him from the disability.
    THE defendant, who is wife of the plaintiff, was sued in a justice’s court for services rendered by the husband whilst they were living together as husband and wife. The parties had been living separate for a time, each working out on hire. By mutual agreement they commenced living together again, about the 1st of March, 1869, under circumstances stated in the opinion.
    The plaintiff recovered a verdict of $70. The judgment was appealed from to the county court of Columbia county, upon questions of law only. The judgment/was affirmed in the county court, and from the judgmentbf affirmance an appeal was taken, to this court, by the defendant. All the facts necessary to an understanding of the questions decided are stated in the opinion.
    
      S. L. Magoun, for the appellant.
    
      R. E. Andrews, for the respondent.
   P. Potter, J.

This is an action at law, brought by a husband against his wife, to recover, in an action of assumpsit, for services claimed to have been performed for the wife.

At common law the husband and wife by marriage became one person. The very being or legal existence of the woman was, by the common law, suspended during the marriage, or at least is incorporated and consolidated into that of the husband, under whose wing and protection she performs every act. (1 Black. Com. 442. Littleton, §§ 168,291. Bright on Husband and Wife, 2.) It was in consequence of this unity of person between them that neither'the husband nor wife could make a grant or contract the one with the other. (Shepard v. Shepard, 7 John. Ch. 60. Voorhees and wife v. Presbyterian Church, 17 Barb. 104, 105. White v. Wager, 25 N. Y. 329, per Denio, J. McQueen on Husband and Wife, 18.) By these and numerous other authorities, the husband and wife are one person. In this condition of unity, a husband and wife could no more contract with each other than one individual could contract with himself; the act would be a nullity. Modern statutes in this country, however, have wrought some changes in this relationship. The incapacity of a wife to make contracts has, to some extent, been removed by these statutes. Except to the extent that this incapacity has been removed by statute, the marriage relation, in its oneness of unity, remains, unchanged, as it was at common law, before those statutes were enacted. The new powers conferred on married women, by these statutes, were in derogation of common, law, and are to be strictly construed. (Coke’s Inst. 97, b. Graham v. Van Wyck, 14 Barb. 531, 532. 4 Sandf. 236.) These modern statutes relate only to. the control and management by married women of their sole and separate estate. As to that, the wife is to be deemed a feme sole. . The husband has had no new powers conferred upon him, nor has he been released from any of the duties and obligations imposed upon him. His condition in this marriage relation is unchanged, so far as regards its unity. The wife is released from no* part of this unity, except in so far as it is expressed in these statutes. In White v. Wager, (25 N. Y. 333,) Denio, J., speaking of "these statutes, says: “ Ho doubt there was an intention to confer on the wife the legal capacity of a feme sole in respect to the conveyance of her property, but this does not prove that she can convey to her husband.” Then he proceeds to show that as femes sole have no husbands, the implication is against the power to convey to a husband.

These statutes, being in derogation of the common law, are to be construed with reference to the common law as it existed when they were passed. Dwarris says: “It is not to be presumed that the legislature intended to make .any innovation upon the common law, further than the ' case absolutely required. The law rather infers, that the act did not intend to make any alteration, other than what is specified and besides what has been pronounced; for if they had that design, they would naturally have expressed it.” And Chancellor Kent says: “ This has been the language of courts in every age,” repeating the language of Dwarris,■ that “it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely requires.” (1 Com. 464.) The instances are repeated in our books of reports, holding this construction to be sound. It would be contrary to the public policy of the law that there should be a divorce from that conjugal union and mutual confidence demanded by the marital relation. There has been no expression, either in the titles or enacting clauses of the statutes for the protection of married women, or their property and estates, in their letter or spirit, of an intent to destroy the unity' or identity of husband and wife, or which demands or authorizes any such construction as that they may sue or be sued, at law, by each other. It would be monstrous; it would open a door to intolerable controversy and litigation, and sow the seeds of perpetual domestic discord and broil. (Longendyke v. Longendyke, 44 Barb. 369.) It would convert the holy institution and honored relation of marriage into a nursery to cultivate .the worst passions and infirmities of humanity. Surely no such downward progress was intended by the legislature, in this day of advancement in civilization—of our natural progress in knowledge and intelligence, and of our advanced social and political condition.

The spirit and intent of all the statutes enacted to protect married women in their estates, and to give them in that particular, the powers oí femes sole, are limited, in their construction, to the exercise of that power. Though very full powers in-that regard are .conferred, as they should be, in order to their proper enjoyment, yet all these statutes, "being in pari materia, are to be construed together as one, in their letter, spirit and intent, precisely as if they were all contained in one act.

The statutes of 1848 and 1849, on their face, and in their letter, recognize the disqualification of husbands and wives to contract with .each other, in the right to take and receive estates from any person other than the husband. Why except him, but to prevent the construction that the common law was intended to be abrogated ? These statutes aré the beginning, and they continue to be a part, of a new system and policy, in relation to the separate estates of married women. What part of the common law, then, is abrogated, except that which the statutes express ? Has any' jurist—has any lawyer—supposed that a- husband is not now bound to support, provide for, and maintain his wife? That from the obligations and duties which the marriage.contract imposes he has been discharged by these new statutes ? That his power to command, and her duty to obey all reasonable commands, has been severed and abrogated ? Do they confer upon her the option to say he shall not enjoy his marital rights, and to select her own chosen substitute to exercise them ? Do they, in fact, amount to a practical divorce ? Better, far, for the permanence of the blessings of the marriage relation; better far for the peace of the society, the union and tranquility of family relations; that the divorce should be total, at the option of the parties, than that there should be a partial one created by an undefined line to be guessed at by loose interpretation; thus leaving domestic bickerings to afflict* if not overwhelm, the courts; and allowing the parties to a marriage contract to sue each other for every fireside controversy.

Did any one ever suppose that the possession of some separate estate by the wife released the husband, in any degree, from the common law liability and duty to support andmaintain his wife ? If he refuses or neglects to furnish such support, may not the tradesman or mechanic sue the husband for necessaries furnished for her support? Would it be a good defense to an action for such legal liability, for the' husband to plead that the'wife had a separate estate? Is the common law changed, in this respect, because the husband abandons or lives separate from her? If the tradesman sues for necessaries furnished to the support of the wife, is the common law changed, that requires him to prove that the husband has omitted to furnish them ? Could the tradesman sue the wife, upon such an ' account, because the husband refused to pay it? .If the husband sues for such necessaries furnished whom would he sue ? What law has given him a better right than a stranger. Must he not sue the same person—sue himself—and prove his own omission to furnish the necessaries ? Why can he not do this ? Because of that legal unity which no statute has dissolved. If he may sue'her for his services, as a legal right, in a court of law, why may he not sue her for damages for withholding any marital right? Where then are the parties to stop ? What a vast new field will be thus opened to litigation ! Little did sober legislators conceive of the result of these new creations by construction, when they were engaged in making a protective statute, to secure the estates of married women. Barely to state these results and consequences is in effect to give reasonable and practical interpretation to the meaning and intent to the statutes in question.

But at common law, before the passage of these statutes, though husband and wife were held to be but one person, in law, still that person was represented by the' husband, in all courts and places, except in equity, where the separate rights of the wife could be sued for; defended and protected. In all other respects, her legal existence was suspended; she wras not known. The recent statutes, made in Tier behalf, not his, have, to-the extent expressed therein, enfranchised her, as to those rights, and as to those only. They have extended no powers, they have conferred no new rights upon the husband. If when her separate estate is affected, she can sue, and sue alone, by them she is allowed even to sue' her husband, if he interferes with it to her disadvantage. They have" not—certainly not in express, terms—conferred the corresponding right on him to sue her. They were passed for her protection, nqt his. She has just such power as the statute expressly confers on her—no more. Nor has he any more. They have conferred noneon him. They have released nothing to him.

In White v. Wager, Denio, J., says, page 332: “ It is quite apparent from the provisions of [these] acts that the design was not to confer any additional advantage upon married men, but it was intended solely for the benefit of the other party to the marriage relation.”

The statute of 1862, (chapter 172, § 3,) does, in fact, confer upon a married woman the power, in general terms; to sue and be siled in all matters having relation to her sole and separate property; and also to recover damages for injuries to her person ; (which damages, before, belonged to her husband.) This is a conference, or rather a restoration, of marital rights upon her, not on him; and if it includes the right to sue him, for interference with her separate estate, it does not, in terms, confer on him, any right to sue her. But even as to her right to sue him, in an action at law, it has been adjudged to the contrary, since the passage of that act, in two general term cases. (Gould v. Gould, 29 How. Pr. 441. Longendyke v. Longendyke, 44 Barb. 366.) These cases received much consideration by able and distinguished jurists, and we feel bound to follow their views.'

The “ right to sue and be sued” was a right that the husband always possessed, before the statute, and independent of it. A statute conferring such a right on him would add nothing to his power in this regard. But could he, therefore, though possessing such a right, sue his wife? Why not? He had, before, all the power at common law, that she had conferred upon her by statute. Did any one ever suppose that under this power he could sue his wife, in an action at law, upon a contract made between them ? Does the conferring, by law, an equal power upon the wife, increase his powers ? If the unity of the relation is so severed by this act that he Can sue her for his labor, may she not sue him for hers ? May she not sue him for the labor and care of nursing and taking care of his children ? Hay, may she not sue him even for the labor of bearing them ? To what do not these several rights to sue extend ? Where is the jurist that dares to draw the line, to say how much of the disability is removed, and how much remains; or to declare that no line of limitation exists ?

Hntil the highest court of review shall otherwise determine, I shall feel bound to hold that the unity of person created by the marriage contract between husband and wife, has been no further severed than the statutes, in express terms, or by necessary implication, have effected that purpose; that the duty of the husband is, now as ever, to labor and provide support for his wife, and that it has not been changed by those • statutes; that those statutes have not conferred the right upon husband and wife to make contracts between themselves to that end; but on the contrary, the legislature, in the last of these statutes, (Laws of 1867, ch. 887,) recognize the unity of the persons, and relations, of husband and wife, in expressly reserving, and exempting' them from communicating or disclosing, even as witnesses, any confidential communications made by one to the other during their marriage. The legislature, it -is very clear, then, regarded the sacredness and unity of the relation not as dissolved, but as existing, to some extent. If we are right in this view, the justice erred in nonsuiting the plaintiff as demanded.

I am not unaware that there are various cases holding that married women having separate estates may employ their husbands as agents to assist in managing them'; but this is-quite a different thing from the holding that the husband may bring an action against his wife, at law, for his services. This agency may be the best way in which he may labor to support his -wife, or aid in doing so. She ought not to be deprived of this aid in. managing her estate. This power to make contracts existed at common law; but it was as agent, not as an independent and separate individual. The wife might be the agent of the husband, and in that character mahe contracts which would-bind him ;■ and such agency need not even be express, but was implied from a variety of circumstances. This is in aid of the purposes and comfort of married and domestic life. So,' now, the husband may be the agent of the wife in regard to her separate estate. And the term contract, between them, means just this—a contract of agency. So reading some of the obiter remarks found in the reports, giving the word contract, as between .husband and wife, this limited meaning, it is well enough; beyond this, it is calculated to mislead.

hi or am I unaware of the obiter remark, made in the case of Fairbanks v. Mothersell, reported in 60 Barbour, 407, as follows: “I suppose, as the law now is, in regard to the-separate property of married women, they may make special contracts with their husbands, and let jobs to them of particular work, such as building and the "like, the same as though they were strangers.” From what we see of this reported case, this remark was not at all necessary to the decision. It was not a question between husband and wife, or whether one could enforce, at law, such a contract against the other. It v?as a mere question of agency, so far as we can judge. The wife, in that case, had given the husband the job of digging'a cellar, and laying the cellar wall, upon her separate property, as distinguished from the other part of the building. She agreed to pay him $138 therefor, and did pay him ; but could he have enforced the contract,’at law ? The husband employed the plaintiff to assist; the plaintiff, supposing, at the time, that the husband was the owner. Afterwards, finding out to the contrary, and that the benefit and advantage was to the wife, he sued the wife, treating the husband as her agent; and so the jury found the fact to be. This was right. The jury correctly found, in the justice’s court. The judgment was rightly affirmed on this ground, in thé county court, and by the Supreme Court. But I do not see how the question arises in.the case, that establishes the right of a husband to sue his wife, at law. That question did not arise. The court does, indeed, remark, as I have said, obiter, that they suppose women may make contracts with their husbands. I concur in this, if the appointment to an agency, in such case, can be called a special contract. I do not believe it is a legal binding contract, existing between husband and wife. And as the point we have been considering was not in that case, it is, perhaps, a little unfortunate that the first marginal note of the reporter- should be based upon an obiter remark. The case does not sustain this note. I should greatly hesitate to question the direct adjudication of that learned and able court; but they did not decide the question. It was not there to be decided.

But if we were even to look at this case upon the merits, conceding the right of the husband to sue, the case is without merit. An implied contract could never exist at law, between a husband and his wife, whom he was bound to support, for services done for her. The implication is the other way. The fact that they had previously lived separate, by turns, proves nothing but a condonation when they again came together. If an express contract was proved, according to the plaintiff’s own testimony it was not only to be for a year, but was conditioned that he should not drink whiskey. I think his own testimony showed that there was no performance on his part, but on the contrary he proved a breach—and he should have been nonsuited. But I do not put much stress upon this review on the merits.

Since preparing the foregoing opinion, two cases have appeared, reported in 4 Lansing's Reports, viz : Adams v. Curtis, p. 164, and Minier v. Minier, p. 421, which are supposed to be in conflict with the views above expressed. They are not so, in the material point. In Adams v. Curtis, the case was correctly decided, upon what appeared in it. That was an action by a wife against a copartnersip, of which her husband was a member. The husband did not appear, in the case, and his copartner did not appear for him. It does not appear what were the pleadings, nor what the issue tried. It only appears that the testimony showed that the plaintiff was the wife of the copartner, Adams, and that she performed the work for the firm, for which the action was brought. She was beaten, in -the justice’s court; she appealed, and the county court reversed the judgment; for what reason, does not appear. In the Supreme Court, the judgment of the county court was affirmed, and the law was there discussed as to the right of a wife to sue her husband. The leading opinion, by Miller, J., merely holds that such a contract could be made, and if made, could be maintained, under the statute of 1862, at law. One member of the court, Ho&eboom, J., puts his assent to the decision on the ground that the husband not having appeared, in the case, nor any one for him, there was no one to object to his being sued, or to a judgment against him-; and that even if he could not be sued, his copartner, Curtis, was bound, at all events, and he could seek contribution over from the husband. On either of these propositions, the case is not in conflict with, the views we have expressed above, that the statutes were passed to enfranchise married women, and to protect their property, and not to protect, or extend rights to, their husbands.

The case of Minier v. Minier, (supra,) is to the same effect—that a married woman may maintain an action against her husband to recover moneys intrusted to him by the wife, or for lands which had been purchased with such moneys, and title taken in his name. Such has always been the law of equity, and the modern statutes have but extended it to actions at law. The only criticism to which this last cited case is subject, is the obiter remark of the learned judge that the act of 1862 “warrants the bringing of a suit, both by a wife against her husband, and by a husband against his wife.”. This last branch of the sentence was not a question before the court, and I cannot give it my assent. It is in conflict with direct holdings in previous cases in the higher court; to wit, in White v. Wager, (25 N. Y. 328,) and in Hunt v. Johnson, (44 id. 27.) In this last case the court drew the distinction between an instrument made by a wife to hey husband, and one from a husband, to the wife, even at common law. Referring to another case, Hunt, J., says: “That case differs from the present action; that was a'conveyance by wife to the husband; this was by the husband •to the wife.” They do not necessarily stand upon the same basis, in equity. It is the duty of the husband to provide an assured and comfortable support for the. wife during his life, and after his death. No duty rests upon the wife to provide for the husband. The custom of the country, and the laws of the land, look upon her as the party to be aided and sustained by the toil and wealth of the husband. An application of the husband’s property for her comfort, is eminently equitable, and has been favored by the courts from their earliest existence, Uo judge has yet announced that this equity, or this favor, is to be extended to gifts from the wife to the husband. There is, in the nature of things, a broad and palpable distinction against an equitable claim in the husband’s favor.”

Interpreting these statutes (including that of 1862,) to be in pari materia, as if all were contained in one act, beginning'with those of 1848 and 1849, entitled “for the more effectual protection of the property of married women taking the common law as it has ever been declared; abrogating none of the common law by forced construction, not expressed by a statute; and giving due force to the maxim “ expressio unius est exclusio alterius,” husbands are excluded from their provisions. The statutes of the State of Pennsylvania, (Laws of Session, 1848, p. 536, &c.,) which are almost identical with our own, have been so construed in their highest courts. In the case of Diver v. Diver, reported in 56 Penn., at page 109, Strong, J., (now of the United States Supreme Court,) said : “ The design of this Statute (1848) was single. It was not to destroy the oneness of husband and wife, but to protect the wife’s property. To effectuate this object she is enabled to own, and use and enjoy, her property, by removing it from under the dominion of her husband.” “ It is to be, as her separate property is enjoyed; as property settled to her separate use. The act no more destroys her. union with her husband than does a settlement for her separate use.” “It is a remedial statute, and we must construe it so as to suppress the mischief against which it was aimed, but not as altering the common law any further than is necessary to remove the mischief.”

There is, then, no doubt as to what the common law was,'and is. It is equally as clear that there is no expression of an intent, in this statute, to destroy the unity or oneness of husband and wife, except as to her, in the single particular of her control of her separate estate. There is no question that statutes are to be interpreted as not changing the common law, unless it is so expressed in terms, or by necessary implication. There is nothing in the act of 1862, or in its title, that intimates an intent to add new rights or remedies, in favor of a husband. Looking, then, at the common law as still being in force, except as expressly changed by these statutes, let us see what are the expressions in the act of 1862, from which it is attempted to imply a power of destruction of-the unity of the parties, husband and wife, further than is expressed. § 7. “ She may sue and be sued, in all matters having relation to her sole and separate property.” But by whom may she be sued ? By herself ? Of course not. By him who is in oneness or unity with her ? Can he, the one-half of this united one, sue the other half, by virtue of this statute ? He certainly could not sue, by the common law. "What language then is found in this statute, that authorizes him to sue her? It is á universal canon of construction of statutes that unless the provisions of a new statute are so repugnant to the common law that, both cannot exist together, the common law is not abrogated, but remains in all its force. (Dwarris, Am. ed., 185, and notes.) This is the law of interpretation. True, the language of the. statute of 1862, that “she may sue and be sued,” is broad enough, in general terms, to include all parties that are several and equal, and under no disability; but it does not include persons that are under disability. The husband is, under the common law disability, unable to sue his wife. This statute is not broad enough, and does not divorce him from that disability; whatever it may do for her. It is not broad enough to absolve Mm from the liability, as well as the duty, to labor for the support and •maintenance of the wife; far less does it authorize him to sue her for his support. Though in its language it does, in one particular, and in that only, enfranchise her, and confer rights upon married women, for a particular purpose, there is not one expression in it that confers new powers upon him. The marriage contract, with its liabilities, cannot be so severed by legislative or judicial construction in favor of a husband. He cannot be so released from a binding civil contract. Besides, such a contract is clearly against public policy. If, indeed, the statute contained an express provision to that effect, it would, I think, be void, on the ground of its being retrospective in its operation upon marriages solemnized before its passage.

I have been the more inclined to meet and resist the construction claimed by the plaintiff, thus earnestly, at this time, because I have seen the disposition manifested in several dicta which are already found in the reports, tending in that direction. I regard such a construction as, in effect, judicial legislation; though in none of the cases, has the question been necessary to a direct adjudication. It is entering into a new and unexplored region for judicial action. Its explorations, are without compass or chart to direct its forward course, or its retreat. The way will be found dark, and full of stumbling-blocks, and with no experienced guide. Hntil the legislature shall open the way, or light up the path, I am not disposed to enter.

I think, upon the main question I have discussed above, that the judgment of the county court, and that of the justice, should be reversed, with costs.

[Third Department, General Term, at Albany,

March 5, 1872.

Miller, P. J., and P. Potter and Balcom, Justices,]

Balcom, J., concurred.

Miller, P. J., concurred in the result, for the reasons stated in a written opinion.

Judgments reversed.  