The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1895-11-08

inc 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 s Act of 1883.
| find 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
| 10 have power to make contracts with
eyery one. not excepting her husband.
The statute says that the decree shall
have the effect to "reiRStdte" 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 feme sole" she may
sue even ner husband with respect TO
il. Wright V. Wright, 81 n. Y. 437;
whitney v. Whitney, 49 Barb. 3l9
Scott V. Scott, 13 Ind. 225; Emerson
V. Clayton, 81 Ill, 1873; and may re-
cover against him in ejectment, Wood
V. Wood, So n. Y. 575. The opposite
view is sustained in Small V. Small +,
129 Penn. 366.
Ii the right of married woman,
separated from her husband, to con-
tract with him aud 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.
Trousseau 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 OverTuled.
The case is sent back to the Circuit
Court, First Circuit, for further pro-
ceedings.
Honolulu, Oct. %, 1895.
OPINION OF FREAR, ].
While | concur in the conclusion of
tine Chief Justice, and in the general
line of thought pursued by him, yet |
desire to state my views somewha
differently, though | shall do so but
briefly, ina much as he has so fully
stated much of the law bearing upon
the case. / 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
titf's capacity 10 briug this action,
based as it is upon supposed absence
of statutory authority for suits by a
wife against her husband, is suffi
ciently answered by the mere state
ment of the fact that the action was
brought neither by wife nor against
a husband, but by a widow, a feme
sole, against certain third parties,
executors.
Secondly, was there sufficient con-
for the promise sued on,
namely, that of Mons. Trousseau?
A consideration is to be distin-
guished from condition, AID con
consisting OF promise to
perform is to be distinguished from a
consisting of perform
ance.
Iu this case the contract is some
what iuartiticially drawn, but it seems
TO be bilateral, consisting of mutual
promises, those on each side being
the consideration for those
Ou the other side. The consideration
for Nous. Trousseau's promises was
Madame Trouuseau's prom
i,es to discontinue her suit upon GER
in nd IN
ing proceedings upon certain other
There may be ground for argu-
ment that the instrument in
question contains two or more un-
lateral contracts, Mons. Trousseau's
promises being considered as made
upon condition that his wife should
perform certain tbings, in which case
upon her performance thereof the con
tition ripened into "A consideration.
In either case his promises were
ma IL for a sufficient considerati n
either her promise or her perform
ance.
If the contract was bilateral, it is
to consider now how far
the performance of each promise was
dependent upon the performance of
the other. III there were two or more
contracts, it is unnecessary
TO say, whether there was "a sufficient
for her promises, for the !
-uit is not brought on her promises,
but on his. | am, however, of the
opinion that there was ample con
for her prom ses.
Thirdly, by what law is the validity |
g a. -. .l.eg /
as this depends upon the status of the |
plaintiff as separated wife at the
time the contract Was made?
That the validity of a contract, in |
so far as this depends upon the nature |
Or form of the contract itself, is gov
arnei by the Ler loci cORtrdctus, Is so |
well settled as 10 need no citation of
authority-subject always, of course,
to the qualification that the contract
must not be immoral or unjust or un-
furious 10 the country or the citiz ms
Of the country in which rights under
it are sought to be enforced.
But in so far as the validity of a
contract rests upon the status of
party thereto, there is considerable |
diversity of opinion in respect to the |
law which should govern. The con
European jurists as n rule
that the Ter dOmiciLif |
should govern. In England the ques-
ton seems to be somewhat unsettled. |
In the United States, there has been
some leaning towards the European
doctrine, as for instance, in Matthews
v. MurchisOn, IL FED. Rep. $50, in |
which, however the statement of the |
Court that the Ter dOmiciIi con- |
-rolled as to the ability of a married |
woman IN contract NAV narhana ha 1