The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-11-06

Luu- IL Is unnecessary W
whether the French law is well plead
ed in the complaint.
Is this contract void? By the COM
mon law il would be, as being made
between husband and wife. But a
decree of divorce q Hlensd ct thoTO
had been made. Madame Trousseau
was a separated WIFE"
Our Hawaiian statute defining the
status of sucn a woman is peculiar.
do not fiud any similar statute in
other countries. See Dean V. Rich
mond Pick. sol. The statute reads
(Sec. 1889 Civil Code. Comp. Laws, p.
400 Whenever q decree of separa-
ton Is granted, the decree shall have
the effect, during such separation, 10
Teinstate the wife, whether the wrong
doer or not, in the right 10 sue or be
sued, 10 ALLEVIATE and convey property,
TO make contracts and TO do all other
acts a. if she were fenIe SOLE"
Separation from bed and board be-
ing a relief To married persons under
certain circumstances, created by
statute, the statute must control. The
separated woman is not forbidden by
the statute TO make contracts with
her husband. This character of con-
tracts Is not excepted, as IN the Mar
ried Women Act of 1888.
Itind the statute broad enough to
allow the separated woman TO con
tract with her husband.
This construction is in accord with
! the modern policy Of the treatment of
woman. If she Is separated from her
/ husband by decree of Court she ought
| to have power to make contracts with
! every one, not excepting her husband.
! The statute says that the decree shall
have the effect TO "reiRStGte" her in
these rights as if she had not been
married.
Very many Courts have held that
where the Married Women's Acts
allow the wife to have 'sOle con-
troll" of her separate property
or ''to act as a fene SOLE" she may
sue even her husband with respect to
it. Wright V. Wright, 81 y. Y. 437;
Whitney V. Whitney, 40 Barb. 319;
Scott V. Scott, Is Ind. 225; Emerson
V. Clayton, 81 Ill, 1913; and may re-
cover against him in ejectment, Wood
V. Wood, SO \. Y. SIS. The opposite
view is sustained in Small V. Small,
129 Penn. 366.
If the right of a married woman,
separated from her husband, to con-
tract with him and to sue him, is linn
tied to contracts and suits concerning
her separate property, the case before
us seems to be of that character. A
French Court had adjudged Mons.
rousseau to be indebted TO his wife in
the large sum mentioned. The judg-
ment was, therefore, her separate
property, and she brought the suit
here to enforce it.
The exceptions are sustained and
the demurrer is Overruled.
The case is sent back to the Circuit
Court, First Circuit, for further pro-
ceedings.
HonOlulu. Oct. %. 1895.
OPINION OF FREAR, J.
While / concur in the conclusion of
the Chief Justice, and in the general
line of thought pursued by him, yet
desire to state my views somewhat
differently, though L shall do so but |
briefly, ina much as he has so fully |
stated much of the law bearing upon |
the case. L shall consider in order |
each of the five questions which, in
my opinion, must be decided in dis |
posing of the exceptions.
First, the argument against plain
tiff's capacity to bring this action,
based as it is upon supposed absence
OF statutory authority for suits by
wife against her husband, is suffi
ciently answered by the mere stale
ment of the fact that the action was
brought neither by a wife nor against
a husband, but by a widow, a fene
sole, against certain third parties,
executors.
Secondly, was there a sufficient con-
sideration for the promise sued on,
that of Mons. Trousseau?
A consideration is to be distin-
guished from a condition, aud a con-
sideratiOn consisting of a promise to
perform is to be distinguished from a
consisting of perform
ance.
In this case the contract is some
what inartificially drawn, but it seems
20 be bilateral, consisting of mutual
those on each side being
the consideration for those
IN the other side. The consideration
or Mons. Trousseau's promises was
n parently Madame TrOuuseau's prom
ses to discontinue her suit upon GER [
ain conditions and to forbear renew
Dg proceedings upon certain other (
There may be ground for argu- t
nent that the instrument in '
question contains two or more I'm 5
lateral contracts, Mons. Trousseau's l
promises being considered as made S
Upon condition that his wife should '
perform certain things, in which case j
Upon her performance thereof the con.
iition ripened into a consideration.
In either case his promises were c
ma ie for a sufficient consideration /
ither her promise or her perform {
nee. G
If the contract was bilateral, it is c
TO consider now how far :
he performance of each promise was '
dependent upon the performance of r
he other. If there were two or more a
contracts, it is unnecessary [
o say, whether there was sufficient :
consideration for her promises, for the i
nit Is not brought on her promises, ;
ut on his. | am, however, of the a
pinion that there was ample con- L
liberation for her promises. e
Thirdly, Oy what law is the validity v
f the contract to be determined so far
5 this depends upon the status of the t
laintlff as a separated wife at the v
lme the contract was made? C
That the validity of a contract, in v
o far as this depends upon the nature =