1812. HAWK v. lustrate the law as laid down with respect to the feme. The construction seems to have been so understood by the abridgers, for no distinction is taken. The year book is cited by Roll, and by Viner, who translates it, “Feme sole binds HARMAN. herself in an obligation; baron is chargeable. So if a man enters into an obligation, and after enters into religion, the abbey shall be chargeable for this during the life of the monk. The same law of a trespass." But the weight of authority is derived from this, that the law is expressly laid down to be, that in case of contracts of the feme sole, the baron is chargeable; and the limit is not drawn excluding torts; but, on the contrary, the boundary is passed, and trover, detinue, waste, and tortious entry by the feme sole, are grounds of recovery against the baron. If trespass vi et armis is maintainable, which must be in the case of a tortious entry, how shall we exclude trespass on the case, of any denomination? In the spiritual court, in which, though having cognizance of slander " merely spiritual," the common law must govern as to the person to be affected in damages, we have an express authority in the case of slander. "Citation in the spiritual court against a แ feme sole on slander, and 10l. awarded for defamation. Feme takes baron; he is answerable." 4 Viner 122, cites 12th H. 7th, 22. It is impossible therefore for me to say that, on espousal, a damsel is not taken with all her slanders on her head, and all her trespasses, and that the baron is not answerable. Nor can I say that, by losing a substantive existence by her own act, it would be reasonable that she should escape from all responsibility. Nor do I know that it can well lie in the mouth of the baron to complain, since he cannot but be considered as a party to the act of withdrawing on her part, and the taking shelter under the marriage state; more especially in the action on the case for a breach of promise of marriage; because the successful lover cannot but be considered as a party to the fadifragium; for it cannot but be presumed, that but for him there would have been no jilting. It is however to the credit of the sex, that so little occasion has there been to pursue for words, or breaches of the peace, against the feme covert and the baron joined, that it should be made a question whether an action would lie at all; and that even at this late day, the law is to VOL. V. G 49 1812. HAWK υ. HARMAN. be deduced, rather from principle than precedent; unless we suppose that the chivalry of gallant men has led them to compromise, and satisfy on behalf of their half, if I may play upon a word; so that few or no actions have been brought, or at least left upon record, of the more atrocious wrongs, personal or otherwise. I will acknowledge, I have not made an extensive search through books of entries; but I take it from the little said in the abridgments, with a reference to cases, that they have not been numerous. I have only looked so far as to see, that it cannot be avoided to be laid down, that marriage neither extinguishes nor suspends the right of action. I mean that the right of action is not so far suspended, but that it may be brought against the femme, though with a joinder of the husband. For I take it, that though, on the death of the baron, the action would survive against the feme, yet, quere, in a case where the statute of limitation intervenes, would not the suit be barred by not having brought it in the time of the husband? It is a consolation that his responsibility is confined to prosecutions merely civil, and that he is not criminally liable for her misdemeanors, or wounds inflicted, or thefts committed before coverture. Even in the case of a misdemeanor, he is subjected to no part of the imprisonment, if such be the sentence; nor would the law allow of his vicarious substitution. But if a fine is to be paid, it amounts to a levy upon him, since he must discharge it to keep her out of jail. In all affairs of human life, the sweet and the sour must be taken together; qui sentit commodum, sentire debet et onus. According to the marriage ceremony, she must be taken for better or worse; though I will not say, that in drawing up the form, there was a reference to this principle of law; but the words are broad enough to comprehend it, and it would look like a subtilty to explain away and exempt it. But the notion of marrying a lady in her shift free from incumbrances, may be set down amongst vulgar errors. The law being settled on this head, if there was any doubt of it before, it may lead to greater caution, and put the unexperienced upon enquiry, as to the conduct of the inamorata before the nuptials; and may lead the female to a single attention to her morals, as wrongs and breach of the peace may prevent her matrimony. It is true, the husband may with more propriety call her his dear wife, if some of these drawbacks should come upon him; and with a safe conscience he may use the term as an equivoque, even if his affections should not be the strongest after marriage. By the common law also it is allowable to give due chastisement, which I take it, may extend to what was done before marriage as well as after, and take personal satisfaction; though on this head I will not undertake to be as clear as I am on the principal point, that he is answerable for her torts before marriage as well as after, which is all that it is necessary to decide in this case. 1812. HAWK v. HARMAN. Judgment reversed. EBERSOLL against KRUG and Wife. IN ERROR. Lancaster, AIRD on behalf of the defendants in error, moved the A venire facias court to award a venire facias de novo. de novo cannot be awarded by this court, if the The action was brought in the Common Pleas of Dau- cause below was tried by arphin by Krug and wife, who in the same declaration joined bitrators, and slander of the wife with slander of the husband. The cause not by a jury. Nor can it be was then arbitrated; and after an award of twenty dollars, awarded, and judgment for the plaintiffs, the defendant below brought where, to enathis writ of error. The court reversed the judgment for the to recover at all, defect in the declaration, and upon this the present motion he must state a was made. cause of action different from that which has been already Laird argued that this case was within the rule of Shaef-submitted to fer v. Kintzer (a), and those stated in a note to Davies v. the jury. (a) 1 Binn. 537. The object of a venire de novo is to submit the same cause of action to another jury, an error which took place upon a former trial being corrected. As where there has been irregularity in choosing or returning the jury, error in rejecting competent, or admitting incompetent evidence,-error in the court's opinion upon the law arising from the evidence,-entire damages assessed upon several counts, some of which are bad,-and the like. The act of the 21st of March 1806, does not extend so far as to authorise the court to permit a declaration to be withdrawn, and one for a different cause of action to be substituted. A declaration in malicious prosecution cannot be substituted for one in slander; nor can a declaration for a slander of husband and wife, be withdrawn, and one for slander of the wife, introduced; although the writ might justify either. 1812. V. KRUG. Pierce (a). It was the case of a defective declaration, which EBERSOLL by leave of the court below, could be amended, or under the act of the 21st of March 1806, withdrawn, or supplied by another; for within the comprehensive power given to the court by that act, the Common Pleas might permit a declaration for the slander of the wife alone, or for any cause of action which could be embraced by the writ. Elder and Hopkins contended that there were two invincible objections to the motion. 1. That the case had never been before a jury, but had been decided by arbitrators. There could be no venire de novo, where there never had been a venire at all. 2. That a venire de novo was never awarded, but to submit to a second jury the cause of action already submitted; and this was a motion to obtain a jury for a different cause, as the cause before submitted, however displayed upon the record, would not entitle the plaintiffs to a verdict. The motion could not succeed unless the court should be of opinion that the power of amendment went so far under the act of 1806, as to authorise the substitution of a totally different cause of action, which would make law suits endless. That act permits amendments in matter of form, not of substance. It has already been decided, that such an amendment as the plaintiffs must ask, to derive any benefit from the venire, cannot be granted. Grasser v. Echart (b), Shock v. M'Chesney, at the Sunbury district, July 1808. TILGHMAN C. J. The court having given their opinion in this case in favor of the plaintiff in error, a motion has been made on the part of the defendants in error for a venire facias de novo. Considering that there never was a trial by jury, the cause having been decided by arbitrators, it is not in the power of this court to award a venire de novo. Under the circumstances of the case, such an order would be an absurdity. Whether we might not send it back in some shape, to receive another hearing, it is unnecessary at present to consider, because I am of opinion, that if the cause had been tried by jury, it is not one of those cases in which (b) 1 Binn. 575. (a) 2 D. & E.126. a venire de novo would be proper. The object of such a writ is to submit the same cause to the consideration of another jury, having corrected an error which took place with respect to the former trial; as where there has been some irregularity in choosing or returning the jury, or where there has been error in law in rejecting competent, or admitting incompetent evidence, or the jury have been misled by an erroneous opinion of the court with respect to the law arising from the evidence. And of late the same remedy has been extended to cases where entire damages have been assessed on several counts, some of which are bad, in order that the jury may have an opportunity of assessing the damages on each count severally. But here the defendant in error has no such object in view; he wishes to have another and quite different cause submitted to the jury. His idea is, that when the court below get possession of the record, they will permit him to withdraw the declaration already filed, and introduce another for any cause of action which may be covered under the form of an action on the case; that is to say, he may declare in trover, slander, libel, malicious prosecution, or upon any species of contract not under seal. A practice of this kind would produce infinite confusion, vexation, expense and delay. A single suit would be a business for life. Such could never be the intent of the act of assembly, which has been relied on, and which was only intended to correct matters of form, standing in the way of the merits of the case, but by no means to alter the cause of action. This principle has been already established in Shock v. M'Chesney, where this court, having awarded a venire de novo to the Circuit Court, at that time held before one of themselves, refused an amendment by which an action of slander was to have been converted to malicious prosecution. My opinion therefore is, that the motion should not be granted. YEATES J. The court have reversed the judgment given in this action, on the ground of there having been a misjoinder of actions by uniting a count for slanderous words spoken against the husband, with other counts for slanderous words spoken against the wife. The counsel for the defendants in error have now moved 1812. EBERSOLL V. KRUG. |