The Hawaiian gazette., 1894-10-12

/ statute wO1ld on both reason Snd
I suthority render the wife Slone
liable were IL not for the former
statute which inside the husband &c
eo1ntSbls in his own property for sll
/ the debts contracted by his wife But
this stStute vSs rspsSlsd by the Act
OF 1855 Sec ~ SID 70 make the
matter doubly sure i: wss further
/ provided (Ssc- s. thSt "a husband
shall net be liable 10 pay
any Judgment thst may Be recovered
against bis wife" II should perhsps
Be stated thst the provisions shove
/ quoted from the Act Of 1883 srs
/ subject 20 certain exceptions, which
however srs not spplicsble TO this
case. But it Is argued thst the &C
eountsbility Of the husband Is IN this
csss s vested night in the creditor,
since II originated prior 70 the Act Of
| ISSS. sud thst the legislature could
ros eonstitusionslly divest It. Il Is
true Ihst 5 vested right could not be
thus Invested, snd the Act itself
Sec 81 expressly excerpts from Its
I operation any rights Of property
which have already accrued under
suy law heretofore IN existence
But the creditors clsim vss not s
vested right The debt OF the wife
rensiusd her debt snd was not
transferred by the ststute 10 her
husband. The statute merely inside
hun accountable snd this could be
repealed al suy time before juds-
msrt against him. The creditors
right OF action against him upon his
wife'- debt Is analogous 70 his right
Of seton sgzirst her debtor upon
Ger chooses N seton, which. II Is well
settled. l. not vested right See 2
Bishop. Mar Women, Secs. Is, .;
also Niles '. Hall. 64 Vt. 453; Bakers
Executors '. hiIgore, rs T. 5 +ST;
and Auius '. Lsu hOns. 9 Hsw.--
Counsel for the plaintiff argues that
the case Of FuItz '. Fox, 9 B. MOur-
499. cited II section y OF 2 BIsh-
Mar. Women. requires the i0inder Of
the husband. but that was because
the statute merely removed his
personal liability for his wite's
debts. leaving him still liable 70 the
extent Of the property received by
him from her. or rather leaving such
property still liable. the Judgment
being rendered s. TO him TO De
levied only on sQco property The
court held thsr as 10 his liability out
Of his Own property the statute had
81 immediate application and the
reasoning Of the court IN thst case
requires Is to hold IN the present
case that the husband should not be
Joined under our statute which re-
moves MS lisbility entirely See ?
Cord. Mar Women, Sec 1916. 4. l,
sud Sees. II42-1145. The case of
Valentine '. Bell, (YEl % Att Rep.
-, also Is referred TO by counsel
IS holding that the husband was
after the Married Women's Act still
liable with his wife upon her ante
uuptisl debt. the marriage having
taken place before the passage OF the
Act The decision contains no
reasoning on this point, but, to
Judge from the reasoning Of the
same court n other cases, We infer
that the statute upon which the
decision YVES based must II so fsr as
Is besrs upon this case difsr from
ours.
The last ground ot exception Is
that 40 cause Of action was shown
herein The first count OF the con-
pIsIUt which alone need be consid-
cred Is upon g Joint promise and
Indebtedness Of the husband and
wife IN consideration of the money
loaned TO the wife with the consent
Of the husband. For the reasons
above stated this count would have
been bad ct common law, but under
our statutes, it shows 2 good cause
OF action against husband and wife.
i good cause Of action was also
shown by the evidence, as We have
seen, against the wife The error of
the plaintiff Is that he sued both
husband sud wife, when he should
have sued the wife alone.
That the wife alone was liable Is e
position not taken by either counsel
II lie 1--WE ED4- = u a L-S Lc6A II
before Us, bat counsel were after
wards requested b. the court to
srgua II Plaintiffs counsel eonsid-
cred both husband and wife liable.
while defendants counsel considered
the husband alone, If any one, liable
TIE Circuit Court apparently re
gzrded the wife g alone liable, but
did not consider the question OF the
MS ioi1der Of the husband
The decision excepted 10 should 0e
reversed ard z new trisi ordered. but
g the suit cannot Be maintained
against both defendants upon TIE
evidence If tee same e. At the first
trial. We think that the plaintiff
should Be allowed to amend by st-ik-
ing cut the name OF the husband
Our statute Of amen mentE Civ. |
Code, Sec 1115J Is liberal IN allow
ing any petition OF other pleading
to Be amended IN any matter Of mere |
form or By adding or striking out |
the name Of any party" and unless |
such amendment Il allowed the plain |
IF nav lose his rights. for no new /