Johnson v. Johnson

4 Del. 171

• Court: Superior Court of Delaware
• Decided: July 5, 1844
• Status: Published

Opinion

The Court

directed a verdict for plaintiff; and entered a rule, on their own motion, to show cause why the verdict should not be set aside, and a judgment entered for the defendant on the plea of non cepit, for misdirection of the court on the question "whether this action could be sustained on the proof as to the taking.

As to the idea of a defence under the marriage contract, and dealings with the wife, independently of the husband, in consequence of it, the court regarded such defence in a court of law, as confusing all legal ideas of the relation of husband and wife.

By marriage the separate existence of the wife, is in point of law, merged in the wife; her liabilities are his; her acts are his; and if done in his house or presence, are presumed to be done by his command. There may be rights growing out of the marriage contract, which might be enforced in a court of equity; but in a court of law, and where there are no trustees in whom the legal title to the wife’s property is vested to assert that right of property, a wife cannot set up any separate claim to her husband’s property, or pretend to any independent action in relation to it.

On the rule to show cause, Mr. Layton cited 10 Johns. Rep. 373; 12 Wend. Rep. 29; 1 Chitty’s Pl. 164; 7 Johns. Rep. 140; 5 Mass. Rep. 283-4; 14 Johns. Rep. 87; 15 Mass. Rep. 156, 359; 15 Johns. Rep. 401.

By the Court:

Booth, Chief Justice.

—Even if replevin would lie for an unlawful detention, this action could not be supported, for there was no demand, and no evidence of a conversion.

Cullen, for plaintiff. Layton and McFee, for defendant.

It has heretofore always been considered the law of this State, that replevin would lie only in case of an unlawful taking. We hesitated at the trial on account of the reference to Hazzard vs. Burton, but'it appears by that case, that there was a demand and refusal to give up the goods, and therefore an unlawful detention, if not an unlawful taking from the sheriff by relation as a trespass ab initia.

Judgment for defendant.