The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-10-25
THE PACIFIC
Commercial AObtrtistr.
SATURDAY, OCTOBER 25.
Supreme Court in BaneooJuly Term, 1879.
HARRIS, c. j., JuDD AND MCCuLrY, j. j.
OPINION BY NcCULLY, J.

NJ DA ANNNLL1
Maa (w) and Manuhii, her husband, VS.. Leiau
IVY, Administrative of the Estate of Kalua (k).
This appeal from the Intermediary Court OF
Oahu to the Court in Banco presents the follow
ing case. In the year 1858 the Plaintiff Maa,
being then the wife Of one Kekai, since deceased,
loaned Kalua, whose Estate is represented by
Defendant, $1,000, Of money which she consi6-
cred her own property, as it was in her own pos
session. We are not informed of the origin of
this money whether by gift or her earnings, but
1t is not claimed that she acquired or held it or
made the loan under the provisions of the law
found in Sections l292-l298 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 pay
ment 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 CO overture, that is a
chose tn Gction belonging to her, never reduced
into possession by her husband, and surviving
to her, or whether Mas 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 limita-
tions.
Our statute fixing the rights of husband and
wife in property is Section 1886 of the Civil
Code, which provides inter AHA, that = The hus-
band shall In virtue of his marriage and in con-
sideration 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 accru
ing to her after marriage. over all which nova
BILE property. he shall, unless otherwise stipulated
by contract, have absolute control for the pur-
poses of sale or otherwise, and the
same shall be equally liable with his own for his
private debts" This clause is quoted in EIass-
iocher VS. Executors of Robinson, Sd Hawaiian
PaDnrtc 20S with tho nhcapuo fio. a. Tie o1ooe
ment Is the common law on this subject" The
common law authorities will therefore control
the point.
Blackstone (Com. II 435) after stating the
law with regard to chattels real and chooses in
action, says "but as to chattels personal Tor
choses) an possession, which the wife hath in
her own right, as ready money, jewels, house
hold goods and the like, the husband hath there
in 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 v. Palmer,
reported in 25 Maine BAL, the wife received in
money her distributive share of her grand
mothers Estate, 1t 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.
1t was held by the Court that this mort
gage had in effect been discharged by the funds
of the husband, that is by the wife's money.
In Com. v. Manley ct al, II Pick. l73, the
Administrator gave a married woman a promis-
sorry note for the amount of her share of her
fathers 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 notwith-
standing her Overture. 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
terne coUert fer her separate use was legally her
property until reduced to possession by her hus-
band. 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 Invested Of property or his rights by any
acts of his wife or others without his authority
or consent. That the moment the note was en-
dorsed to the wife it became the property OF the
husband and be alone could collect, discharge or
transfer it. l the same case the Court say,
$50 even the earnings Of the wife 80 entirely be-
long to the husband, that he only can give a dis
charge for them and must sue for them in his
own name without joining his wife,
In divers PRESIDENTS, page IS, 1T is LAID down
that a declaration for money " lent by husband
and wife afte: marriage will be bad, and judg-
ment will be arrested for that cause after verdict;
the declaration s false, because she can have no
money after marriage. and the conclusion to
their damage ~''vitiates the action"
See also Russell v. Brooks, 7 Pick, 65; Keith
v. Woombwell,5 Pick. I'll Jordan v. Jordan,
SO Me. $50; Carleton v. Hale, 10 Pick. 428
Savage v. King. II Me, 3Ol Ames v. Chew, 5
Met 800 Human v. Parkes, 80 Conn. 1873 :;
Burligh v. Foster, 119.
The foregoing authorities are all in harmony
with the doctrine of Blackstone that chooses an
action of the wife, not reduced to possession of
the husband during coverture belong to the wife.
This Court, in Hasslocker v. Executors of James
Robinson, held that the husband could not be
compelled to exercise his marital rights of re-
ducing the wife's chooses in action to possession
for the purpose of subjecting them to the claims
of credititors. The argument of Plaintiff 8
counsel based on this case was on the assump-
ton that when the wife had loaned her money
the chose in action was hers, but it must
follow from the above cited cases that this money
was in possession of the husband when it was IN
the hands of MAJ, his wife, and that the loan
was made by her as her husbands representa-
tive and became a debt due him, and not her, and
she could not even have been joined with him in
All action to recover it.
The debt not being in law due the widow,
is not revived to her by a promise 30 pay it.
Judgment for defendant.
Castle & Hatch for Plaintiff, a. S. Hartwell
for Defendant.
Honolulu, Oct. 18th 1879.