Frostburg mining journal. [volume] (Frostburg, Md.) 1871-1913, 1891-07-04
MAN AND WIFE ARE TWO.
JUDGE ARNOLD SKATERS THE OLD
MARRIAGE LAW.

n Decision of Interest-The Man and
Woman Are United, but They Are Not
Welded as of Old--An American Decis-
Ion Similar to English Procedure.
If the opinion of Judge Arnold of the
court of common pleas No. of Pennsyl-
vania, is correct, the old idea that man
and wife are one is likely to be over
thrown in our jurisprudence. In an opin-
ion just handed down the judge, in treat
ing upon the rights existing between hus-
band and wife under the marriage law,
takes occasion to distinctly throw down
the old idea in the following words:
The plaintiff claims witness fees for
his wife, the defendant objects; and
hence the appeal. The question is new,
because the law admitting husband and
wife to testify for but not against each
other is new. But in the few cases in
which party may be excluded from
testifying his wife is also excluded. This
is not because of any supposed unity of
husband and wife, for it is manifest that
as witnesses they are two in number,
but because of their identity of interest
and the policy of the law. A husband
joined for conformity in a suit by his
wife prior to the married persons
property act of June 3, 1887, can not re-
cover witness fees, because he is party.
No one who is party can have witness
fees, whether he has an interest in the
suit or not.
"The law now regards the unity of
husband and wife as an obsolete legal tic-
J. l,, ,1n% 30
that fact. The old rule of law that on a
gift to a man and his wife and third
person, the man and wife together took
only half the property, and the third
person took the other half, is abolished
by the modern legislation in regard to
married persons Each takes third
now. Statute laws recognize that hus-
band and wife are two persons in SUBJ
stantial matters. The act of June 3, 1887,
recognizes the customs and habits of the
people, and declares these customs to be
lawful. The common law was the GUS
tomary law of the people, declared by the
judges. 1t was the best craftsmanship,
the faculty to observe what was needed
and then to grant it.
"There was time when husband and
wife We're one in the eye of the law. The
husband on marriage took all his wifes
horses, CATTLE sheep, and oxen. He could
chastise her-moderately, say the books
but if he does it now he will be pun
ished as a wife beater A wife was a
helpmate indeed. She spun yarn, wove
cloth, made frocks and breeches, and was
generally merged into her husbands
pocket, if not into his person. Women
who bring out the spinning wheels of
their ancestors, or buy them if they have
them not, exhibit badge of womans
bondage. Now husband and wife wear
clothes made and bought in stores. In
olden time there were no bazaars and
grand depots and establishments of
smaller size in which all that is worn by
man or woman can be bought.
Formerly married women Were under
an actual disability to buy goods and
make contracts; now they are not, except
that the law of this State, in its transition
state, still puts the burden on the store
keeper to prove and for judges and juries
to decide that the articles sold by him to
women were necessary for her, overlook
ing the fact that the best Judge of what
is necessary for woman, sound in mind,
body and estate, is herself. Her disa-
bility in this respect is changed into a
privilege to get and keep all she can,
with an immunity from liability except
for necessaries. The next legislation will
change this, no doubt, as it has been
changed in England and nearly all the
States.
"As there is no policy of law violated by
allowing witness fees to wife in suit
by her husband if she is a material wit
ness, we think the allowance of her fees
by the Prothonotary is proper in this
case. Whether she was material wit
ness is a questio.,. for the taxing officer
to determine. The affidavit of a party
that a witness is material is not con-
elusive, but it may be overcome by
proof. The materiality of testimony is
always open to inquiry. Appeal dis
missed"