McCafferty v. Heritage

10 Del. 220

• Court: Superior Court of Delaware
• Decided: July 5, 1877
• Status: Published

Opinion

Houston, J.,

suggested that the court had instructed the jury in the case of Welch v. Coulborn, 3 Houst, 647, that they might for such a purpose institute a comparison between the signature to a receipt alleged to be forged and the signature to sundry other receipts admitted to be genuine already in evidence before them in the case.

The Court admitted it in evidence.

Patterson moved a nonsuit, when the plaintiff rested his case, on the ground that it appeared by the book of original entries produced in evidence by the plaintiff that all the items of charge contained in his account, and which constituted the consideration for which the note was afterward taken by him, if it was genuine, had been for the sale of intoxicating liquors exclusively ; but no proof whatever had been made in this case that the plaintiff had a license to sell such liquor during the time he was selling it to her. He cited Del. Laws, 11 vol. 273, 455, 495; 12 vol. 167; 1 Kent’s Com. 466.

Bradford, in reply, cited 1 Greenl. Ev., secs. 78, 79, 80.

The Court were equally divided on the motion, Comegys, C. J., favoring it, and Houston, J., dissenting; Wootten, J., absent. The motion for a nonsuit consequently failed.

The counsel for the defendant then proceeded to call and examine two or three witnesses, one of whom testified that he went there to board, that is, to a hotel in Wilmington at one time kept by the defendant and her husband, in March, 1871, and his wife left when he came back in the fall of that year or the next, but they lived together a little while after he came. Another testified that she went there on the 9th day of January, 1872, and that the defendant and her husband were then living there together and keeping the hotel, but she left him that day and went to Philadelphia, and he remained there, keeping the hotel until the 25th of March following. The third witness, a daughter of theirs, corroborated the testimony of the preceding witnesses, that her mother left the hotel and went to Philadelphia on the 9th day of January, 1872.

Patterson, for the defendant,

asked the court to charge the jury on the evidence that if they were satisfied that there was any cohabitation between the defendant and her husband after their separation when he came back to his home at his hotel where she was then living in the fall of 1871, or if there was any cohabitation by them there between the 1st of September in that year and the 1st of January, 1872, during which time the liquor bill was contracted, or that there was any cohabitation between them there after the day last mentioned, no action could be maintained against the defendant by the plaintiff, either on the promissory note or on the original cause of action under the statute even, and consequently their verdict should be for the defendant. And also that the plaintiff having failed to prove, and there being no evidence in the case, that he had a license under the general statutes before referred to to sell intoxicating liquor, he could not recover in the action. Wheeler v. Russell, 17 Mass. 257; Springfield Bank v. Merrick et al., 14 Mass. 321; Bailey v. McDowell, 1 Harr. 346.

Bradford, for the plaintiff,

assented to his first proposition if the evidence would warrant it, and provided their brief abiding together under the same roof could be properly considered a cohabitation within the meaning and policy of the statute. Would a dwelling together for a day or a month or so in the course of a year, followed at the end of it by a separation of equal or longer duration, serve to exempt the wife from her liabilities under the statute in such a case as that ? If so, it would be but a delusion and a snare who credited her even with the necessaries of life in one of her separations from her husband.

The Court charged the jury in conformity with the prayer of the defendant, provided they were satisfied from the evidence that there had been any cohabitation between her and her husband after the goods had been sold and delivered, for such was the express language of the statute, which was a special and peculiar one in its objects and policy, and applicable only to married women living in a state of separation from their hus bands, and the taking of her promissory note afterward for the same could not in that case entitle him to recover in-the action, as it would be against the manifest design and object of the statute. They would, therefore, if such should be them conclusion on the evidence, return a verdict for the defendant. But if, on the contrary, they should be satisfied from the evidence that she was living in a state of separation from her husband during the time the liquors were sold and delivered to her, which was from September 1st, 1871, to January 1st, 1872, and had no cohabitation with him after that time, their verdict should be for the plaintiff, and they should assess his damages at two hundred dollars, with interest from six months after the date of the promissory note.