
    Edith Myers, by Next Friend, vs. Mary Griffis and Carma Powell.
    
      Husband and Wife — Pleadings—Trover.
    A wife cannot, by appointing an attorney under the Act of 1712, maintain trover in her own name, for the conversion of a chattel in which she has the legal title with right of immediate possession, even though she be living apart from her husband and he interpose no claim.
    Where the wife acquires the legal title in severalty to chattels with right of immediate possession, the title becomes instantly vested in the husband, and he may sue alone for a conversion of them.
    • BEFORE WITHERS. J., AT DARLINGTON, FALL TERM, 1858.
    The report of bis Honor, tbe presiding Judge, is as follows:
    
      “ The action was trover for cattle, (twenty-five bead, I believe, were claimed,) brought by Edith Myers, who had executed a power-of-attorney under the 16th section of the Act of 1712, she being a married woman, but having, for a series of years, twelve or fifteen, lived separate and apart from her husband. The pleas were the general issue and the statute of limitations.
    “ Carma Powell was the son of Mary Griffis, and her husband, Kindred Griffis, who died some six or seven years ago, was the brother of the plaintiff. There was a good deal of evidence given, but I shall report only so much as gives origin to the ground of appeal.
    
      “ The plaintiff had lived at the house of her brother for some time: then went to North Carolina for years — returned, and now lived with some man, not her husband. In the life time of Kindred, her brother, neighbors had observed that hogs on his premises were in one sort of mark, and cattle in another; and, in relation to this, he had several times said tbat tbe bogs were bis own, and tbe cattle Edith’s; that be did not own a cow.
    “ Tbe cattle so marked were in Kindred’s possession twenty years or more, and be killed some, and (except bis acknowledgments) be treated them as bis own. Upon bis death, bis widow, Mary, tbe defendant, administered upon bis estate, and, with tbe assistance of Carma Powell, bad tbe cattle sold, treating them as a part of her husband’s effects. During all this time, no movement of Peter Myers towards asserting any right to the property appeared to have been made.
    
      “ Defendants moved for a nonsuit upon tbe ground tbat this was not a case in which tbe plaintiff could sue; tbat the husband’s right was exclusive by the law marital. I refused tbe nonsuit, and tbe jury rendered for tbe plaintiff a verdict for $150.
    “ A copy "of thel6th section of tbe Act of 1712 is subjoined nonsuit in this for convenient reference.”
    
    Tbe defendants appealed and renewed their motion for a Court, on tbe ground:
    
      That the sixteenth section of tbe Act of 1712, under which the plaintiff brought her suit, does not apply where the right of the husband to commence the action in his name alone, for the conversion of chattels, is perfect and complete.
    Moses, for appellant.
    As to the effect of marriage on the personal goods of the wife, whether before, or coming to her during coverture, cited Eoperl, 169. For her specific chattels in hands of third persons, the husband must alone bring trover, detinue, &c., McQueen 46 ; 1 Oh. PI. 65,51; Fryerson & Fry-erson,, Strob. 8, 461; Bobards vs. Hutson & Price, 3 McO. 475; Sansey vs. Gardner, 1 Hill, 191. Legal estate in wife, with right of immediate possession of a personal chattel in seve-ralty, the marital rights of husband attach and vest the property in him. Chancellor Harper, in Hill vs. Hill, 1 Strob. Eq. 23, says: “ The rule, is well known, that if there be a perfect legal title, and the present right of possession, this is enough to vest the property in the husband, though the're may be no actual manual possession.”
    
      Dargan, contra,
    cited 2 Bail. 349; 1 Bail. 369; 11 Eich. 196; 4 Strob. 469; 3 D. & E. 631; Com. Dig. Abatement, E. 6; 12 M. & W. 97; 1 Sp. 213.
    
      
      
        {a) The copy is as follows :
      
        “ And whereas, hy this Act, a person being a feme covertf is limited as to the time of laying claim to lands or tenements, and to commencing actions or suits of law, and not excepted generally until discoverture, and that such person may he no way prejudiced by the same. Be it further enacted by the authority aforesaid, that in case any feme covert have any right or claim to any lands or tenements within this Province, or any other action or suit whatsoever, such feme covert shall have power to constitute an attorney under her hand and seal to prosecute such her claim, action or suit, either in her own name or in the name of her husband and self, as if her husband had joined with her in such power of attorney; and such person so constituted shall have power'to prosecute such suit or claim to effect, and her husband shall not have power to abate, discontinue or release her claim or action, without her voluntary consent, given in open Court and recorded in the proceedings; neither shall such suit or action be in any way abated upon the account of such woman being under coverture; but the proceedings shall be in all things as good and effectual in law as if such woman was sole, and joined her husband with her in such suit; any law, statute, act or usage, or custom, in this Province, to the contrary notwithstanding.”
    
   The opinion of the Court was delivered by

O’Neáll, J.

This case assumes a ground greatly beyond that of Guphill vs. Isbell, 2 Bail. 349. That merely decided that where a feme sole commenced an action of trover, and married ‘pendente lile, a replication to the plea of coverture puis darein continuance, confessing the marriage, but setting out that under the 16th section of the Act of 1712, she had constituted an attorney under hand and seal to prosecut ethe said suit, would prevent an abatement of the suit. The present case assumes, that suob an act done at tbe beginning of a suit for personalty would defeat tbe marital rights of tbe husband.

Judge Harper in reasoning out bis conclusions in Gruphill vs. Isbell, points out in a single sentence tbe gist of tbe whole matter. “ The Act (he says, speaking of the 16th section of the Act of 1712,) certainly removes her disability to sue, in her own name, as a feme sole, upon the appointment of an attorney.”

This is all which the Act in words or intendment acom-plishes.

That personal property of the wife, to which ,she has a present legal right, vests, jure mariti, in the husband, is an undisputed legal maxim.

Mr. Eoper, in his excellent legal treatise on Husband and Wife, at page 166, tells us, that “ marriage is an absolute gift to the husband of all the goods, personal chattels and estate of which the wife was actually and beneficially possessed, at that time in her own right, and of such other goods, and personal chattels as come to herd uring the marriage.” 1 Rop. Hus. and Wife, 166.

Under this plain, well-settled principle, can there be a doubt that the cattle in dispute are the property of the husband ? That he and his wife have not for many years lived together cannot alter the law.

He may on demand and refusal, or other proof of conversion, unless barred by the statute of limitations, sue for and recover from these very defendants the value of the cattle now in dispute: and if this recovery could stand, it would be" no bar to his recovery.

For he may sue alone for his wife’s property accruing to her after marriage, 1 Eop. 210, So, too, it is plain from the principle stated in 1 Eoper, 166, he can sue alone for her personal property, at marriage.

The case of Saussy vs. Gardner, 1 Hill, 191, in which I delivered the opinion of the Court twenty-six years ago, which ruled, as I am now holding, that “ where the wife has a legal estate, in personal chattels, and the right of immediate possession in severalty, the marital rights of the husband will attach and vest the property in him,” is a clear and decisive authority against the decision below.

This is not, as I understand, questioned now. But it was supposed that the power given to a wife to sue as a feme sole, by constituting an attorney, might so far overrule the husband’s legal estate in her goods as to permit her to recover.

This effect, however, cannot be given to the Act. The motion for a nonsuit is granted.

WhitNER, Glover, and MüNRO, JJ., concurred.

Withers AND Wardlaw, JJ.1

We construe the 16th section of the Act of 1712 -thus: that in all actions whatsoever in which, by the rules of the common law, the husband and wife must join or may join, the wife may bring her writ by virtue of this section. If such be not the interpretation, her right to bring her action will be limited to the class of cases wherein the husband would, at common law, be obliged to join her •name; and thus restrict very comprehensive words of a remedial statute within such bounds, that, in such cases as the present the statute of limitations, of five years, would bar the wife of interests which an obstinate, or'thriftless, or insolvent, or absent husband neglected; a result which does not seem to comport with the fair scope of the Act. It does not seem logical to test the question by the common law standard of marital rights, for the legislation is clearly an invasion and abrogation of the common law rule of pleading, and practice; nor does it seem congruous to dwarf the feme covert's rights, touching-personal actions, bestowed upon her on account of disability, while the Act of 1774 has enlarged her protection, touching real estate, until two years after the removal of her disability.

Motion granted.  