Ellis v. State

76 Ala. 90

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

OLOPTON, J.

— At common law, the wife could have no personal property in possession. Her personal property in possession, and that in action, on reduction to possession, became the property of the husband. Therefore, at common law, an indictment for larceny must allege the ownership in the husband. By our statutes, the right and title to her separate statutory estate is secured to the wife; she has the general ownership. An action for damages to the property itself, as distinguished from its use, must under the statute be brought in her name alone. — Lee v. Tanenbaum, 62 Ala. 501; Pickens v. Oliver, 29 Ala. 528. The natural increase of domestic animals, forming part of the corpus of her statutory separate estate, is the property of the wife. — Gans v. Williams, 62 Ala. 41.

It has been held that ownership may be laid in the husband, if he has possession, because he has a special property. — Davis v. State, 17 Ala. 416; Lavender v. State, 60 Ala. 60. The case made by the record is one where the general ownership is in one person, and a special property is in another. In such case, the pleader may lay the ownership in either, at his election. — 2 Bish. on Crim. Pro. § 728; 1 Whar. on Crim. Law, § 932a; Petre and Hadden v. State, 35 N. J. L. R. 64.

Affirmed.