Gross v. Reddig

45 Pa. 406, 1863 Pa. LEXIS 173

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1863
• Status: Published

Opinion

The opinion of the court was delivered,

by

Lowrie, C. J.

It was many years before the Married Woman’s Act of 1848, that Gross received in money of his wife’s share of her father’s estate, and therefore, in strict law, it was his own money. It is only in equity that his wife’s title can be restored or preserved: and we do not see how equity could do it, after the husband has used it for so many years as his own and mingled with his own, as part of his capital in trade. It all seemed to be pledged to the success of his business, and we cannot comprehend an equity that would allow the wife’s claims to be asserted to the exclusion of the just right of the husband’s credit-; ors. If the husband’s business had continued successful, we suppose that the wife’s claim would never have been thought of.

Nor was the husband a competent witness for her. And it was for her he was offered. It was her claim that was attached, and for it that the garnishee was defendant. He was bound to defend it as well as he could, or to give her notice to defend it herself. It is only personally that she is not a party; in interest she is defendant, for the title to her property is on trial. The garnishee could not make her a witness for herself, by not giving her notice so as to make her a formal party to the suit. And as she cannot be a witness, so neither can her husband be.

We find no error in the trial.

Judgment afiirmed.