The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-10-12
OPINION OF THE COURT By FREAR, J

OPINION OF THE COURT By FREAR, J..
This is an action of assumpsit
against husband and wife for $500
and interest. The Circuit Court,
First Circuit, jury waived ION de-
PENDANTS appeal from the District
Court) found as follows: "That
Flora Jones with the consent of her
husband borrowed $500 from the
plaintiff as a loan to be returned,
and that no payment had been made
to the plaintiff, and the same is due
to plaintiff with interest. x
The money being borrowed by and
loaned to the wife with consent of
her husband, and not repaid, she is
liable. 1 award judgment to the
plaintiff" To this decision the de-
PENDANTS excepted on the ground
that "said action cannot be main
tanned against said defendants joint
ly and that no Judgment for plain
tiff can legally be entered herein and
that no cause of action was shown
herein"
OF the many views of the facts of
this case suggested by counsel only
one need be considered. This is the
only one supported by the evidence
and is that taken by the Circuit
Court, namely that of an original
promise made by the wife clone with
the consent of her bus md during
coverture before the passage of the
Married Woman's Act of 1888, the
action having been brought since the
passage of that Act.
The questions raised by the first
ground of exception are: ~ Was
such promise valid, and (2j If so,
who should be parties defendant in
an action upon it?
At common law the promise would
have been void, because made dur
ing coverture. Our statutes, prior to
1855, provided among other things
as follows: The husband
shall be accountable in his own pro
nertv. for all the debts contracted by
his wife anterior to and during mar
RAGE Civ. Code, Sec. 1856. She
shall not, without his consent, unless
otherwise stipulated by anterior cou-
tract, have legal power to make con
tracts or to ALLEVIATE or dispose OF
property, except as hereinafter pro-
yided. She shall not be civllly re-
sponsibIe in any court of justice,
without Joining her husband In the
suit.n 10. Sec. 1887. 1t IS clear thai
the legislature, in curtaillpS the
rights which tie VIE enjoyed
by slc1snt Hawaiian custom, al
though following the common
law pretty closely, meant
to leave to her at least the
mower To contract with her husbands
consent, and the liability to be sued
with her husband upon such con
tract Contracts thus made with his
consent by her during marriage as
we'll as contracts made by her before
marriage. were placed by the statute
ON much the same footing as the
latter class of contracts at common
law. that is, the contract was vallC
but in a suit upon 1T during cover
tnre both husband and wife had u
ks TO parties defendart,-ther'
can he no question ttat the WIFE
sbouId be a party under the Act o
1855. as before, for that Act great.
enlsroes her liability; and we ar
farther of the opinion that her bus
band should not be joined with mel
The reason given In kalushlne
Dole, 3 Haw. 374 and by some court
elsewhere for the liability of the hus
band for his wife's ante nuptial debt
land by analogy under our statute
for her post nuptiaI debts which ar
placed In the same category IS tha
II is for the advantage of the credit
ors. since the husband upon hl
marriage takes the property OF hl
wife. to which the creditors woui
otherwise look. This reason, II tn
true one, no longer exists, for by tn
Act of 1855 the property OF the VIII
is now free from the management
control. debts and obligations of ne
husband f" (Sec. ~ and she is entltle
20 her earnings (Sec. 81. Anothe
and perhaps the more correc
historically speaking, though not
more reasonable, view IS that IL
nile grew out of the mode OF pr
cedure and was made for the pr
faction of the wife, rather than Il
the advantage of the creditors, tI
Lrsband being a necessary par
Co. conformity" This reason as
- ceased. for the Act now proVlo'
SEC 81 that "a married woman ma ma
sne and be sued in the same mal ln'
&c r. She were SOLE" In either Cd.
aba reason of the rule being take