The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-10-12

| 0lZ, DID, az, 90, and cases there
cited, also Story V. Downey, 62 Vt.
23. The above provisions of the
statute would on both reason and
| authority render the wife alone
liable were it not for the former
statute which made the husband sac
countable In his own property for all
the debts contracted by his wife" But
| this statute was repealed by the Act
of 1883 (Sec. 12) and to make the
matter doubly sure it was further
provided (Sec. s. that "a husband
shall not = = be liable to pay
any judgment that may be recovered
against his wife" 1t should perhaps
be stated that the provisions above
quoted from the Act OF 1888 are
subject TO certain exceptions, which
however are not applicable to this
case. But 1t is argued that the ac-
countability of the husband is in this
case a vested right in the creditor,
since it originated prior to the Act of
1888, and that the Legislature could
not constitutionally divest it. 1t is
true that vested right could not be
thus Invested, and the Act itself
(Sec. 13) expressly excerpts from its
operation ANY rights of property
which have already accrued under
any law heretofore In existence.
But the creditors claim was not
vested right. The debt of the wife
remained her debt and was not
transferred by the statute to her
husband. The statute merely made
him accountable and this could be
repealed at any time before judg-
ment against him. The creditors
right of action against him upon his
wife's debt is analogous to his right
of action against her debtor upoa
her chooses in action, which, it Is well
settled, is not vested right. See 2
Bishop, Mar. Women, Secs. 40, 81;
also Niles V. Hall, 81 VT. 453; Bakers
Executors V. Kilgore, las U. S. 4S7;
and Anima v. Lau Kona, 9 Haw.".
Counsel for the plaintiff argues that
the case of Fultz v. Fox, 8 Il. Monr.
499, cited In section 50 of z Bish.
Mar Women, requires the joinder OF
the husband, but that was because
the statute merely removed his
personal liability for his wife's
debts, leaving him still liable to the
extent of the property received by
him from her, or rather leaving such
property still liable, the Judgment
being rendered as to him to be
levied only on such property. The
court held that as to his liability out
of his own property the statute had
an immediate application, and the
reasoning of the court In that case
requires us to hold in the present
case that the husband should not be
Joined under our statute which re-
moves his liability entirely. See 2
Cord, Mar Women, Sec. 1136, n. l,
and Secs. 1142-1145. The case of
Valentine v. Bell, (Vt) 20 Att. Rep.
-, also is referred TO by counsel
as holding that the husband was
after the Married Women's Act still
liable with his wife upon her ante
nuptial 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 in other cases, we infer
that the statute upon which the
decision was based must In SO far as
it bears upon this case differ from
ours.
The last ground Of exception is
that mo cause of action was shown
herein" The first count Of the COM
plant (which alone need be consid-
ered) is upon a joint promise and
Indebtedness OF the husband ana
wife In consideration of the money
loaned to the wife with The consent
Of the husband IL or the reasons
above stated this count would have
beep-5 at common law, but under
Sur statutes, it shows a good cause
of action against husband and wife.
A 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 and wife, when he should
have sued the wife alone.
That the wife alone was liable Is a
position not taken by either counsel
! in the lower courts or at the hearing
before us, but counsel were after
wards requested by the court to
argue it. Plaintiffs counsel consld-
cred both husband and wife liable,
while defendants counsel considered
the husband alone, if any one, liable
The Circuit Court apparently re-
garded the wife as alone liable, but
did not consider the question OF the
mis- .joinder of the husband.
The decision excepted to should be
reversed and new trial ordered, but
as the suit cannot be maintained
against both defendants upon the
evidence If the same as at the hrs
trial, we think that the plaintiff
should be allowed to amend by strik
ing out the name Of the husband
Our statute of amendments Civ
Code, Sec. 1145) is liberal In allow
ing ..sny petition or other pleading
to be amended IN any matter Of mere
form or by adding or striking on
the name OF any party" and unless
such amendment is allowed the plain
tiff may lose his rights, for no new