Lk Grand, C. J.,
delivered the opinion of this court.
This action was brought by the appellee, to recover damages for a trespass alleged to have been committed by the appellant. The principal facts of the case, as developed both on the part of the plaintiff and defendant, may be thus stated: The plaintiff' and defendant are brothers, and they married sisters; defendant, before, at the time, and since, lived in the house of, and with, his wife’s mother. The plaintiff was married sometime in the month of May 1855, and went to house-keeping, and was separated from his wife within the same year. His wife, sometime in the fall of the year, left the house of her husband, and went to that of her mother, declaring that she could not longer live with him, as he treated her badly. The mother sent for the husband, and both she and his brother, the defendant, sought to reconcile the parties, but did not succeed in doing so. The husband and wife, however, lived at the house of the mother of the wife for about five days, when the husband went to the house of his father, which was situate about one and a half miles from Hagerstown. During his absence, the defendant, accompanied by others, employed for the purpose, entered his house, in Hagerstown, and took from it certain household and other furniture, and conveyed the same to the house of the mother of his wife, where it remained up to the time of the trial. Evidence was offered to show that this furniture, after its removal, was used in common by the family of the defendant, and that of Mrs. Emmerl, the mother, and by the wife of the plaintiff, and, also, that the removal [120]*120was by the direction and in the presence of the wife. There was also evidence that some of the property was that of the wife, prior to her marriage.
The plaintiff, during the progress of the trial, took exceptions to certain testimony allowed by the court to be adduced in behalf of the defendant. In the view we have of this case, it is not necessary we should advert to them, and the more particularly so, as the question which they present is raised by the prayers of the respective parties.
The instructions of the court must be construed in reference, exclusively, to the circumstances given in proof, and, therefore, it is n.o part of the duty of this court to consider the possible state of law as applicable to a state of facts not presented by the record. Whether or not a wife, while living and cohabiting with her husband, can commit a trespass on his property, or whether or not, while in such a condition, she can authorize a stranger to enter upon the premises of her husband and remove therefrom his property, are not questions now before us. The uncontested fact is, that at the time of the alleged trespass, the wife was living with her mother, apart and separate from her husband, without his consent, and contrary to his wish. And it is this state of case, and none other, with which we have to deal. It may be affirmed as undeniable, that there is no case (except one in which necessaries have been procured) where.a wife is living separate from her husband, that she has been regarded as his agent. From wise and humane consideralions, when the wife is free from blame, and living separate from her husband, she is permitted to bind him for her necessaries. It is not necessary to specify the particular circumstances under which the contract of the wife will bind the husband, when she is living apart from him; it is sufficient to say, in every case, her authority is limited to the making of contracts for necessaries. There is no book otease to the contrary of this. The acts, therefore, of the defendant cannot derive a justification from any license or authority conferred by the wife of the plaintiff, while she was living apart from him,
JBut it is supposed that, inasmuch as there was proof in the [121]*121case that some of the property removed was that of the wife, prior lo her marriage with the plaintiff, our acts of Assembly, of 1841, ch. 161, 1842, ch. 293, and 1853, ch. 245, effected an enlargement of her power, and diminution of the right of custody of her husband, and, in fact, conferred upon her the authority to order the entry and removal complained of. We do not concur in this interpretation of the several acts of Assembly. With the soundness of the policy in which they originated, we have nothing to do; that, was matter for the consideration, peculiarly, of the legislative branch of the government. Although this legislation has materially abridged the rights and power of the husband, we cannot bring our minds to believe it was the purpose of the Legislature, if not absolutely to annul the nuptial tie, to utterly annihilate, in every particular, the control and right of custody of the husband. So far as property is concerned, the object of those acts was to protect the property of the wife from the debts of the husband, and, during life, secure its enjoyment to the wife, free from the liabilities incurred by the husband; they confer on her no right to separate from her husband without cause, and to remove from his custody all her personal property. If she lias been misused, and, in the judgment of a court of competent jurisdiction, she deserve it, adequate protection and allowance will be afforded, not only out of property owned by her previous to marriage, but out of the estate of her husband. But, to sanction the doctrine that a wife, from mere caprice, may separate from her husband, and live apart from him in such manner as may suit her passions and inclinations, and to deprive him of all marital rights, is nothing short of allowing a wife, at pleasure, to annul the marriage contract; in fact, to restore her to her original condition, with but one exception, the privilege of forming another matrimonial alliance. Such a state of things would be revolting to the moral sense of the community, and jret the sympathizing spirit of some well-meaning persons induce them to contend for postulates, which, in their practical consequences, would realize the disruption of civilized society. Of course we are not to be understood as intimating any such results were favoied by counsel [122]*122in argument of this case; but as only indicating that, in our opinion, the latitudinarian construction sought to be placed, by persons of generous tempers, upon our legislation, would, if sanctioned, achieve results no less shocking to them than to the rest of the community. Of so great dignity is the contract of marriage esteemed by municipal law and religion, that all others, in binding stringency, are held to be inimitably inferior. This being so, it would require much to convince this court that the Legislature designed more than to protect the wife against the crime, improvidence, or misfortunes of the husband. Such a purpose can be, and is, fulfilled by giving the construction which we have given to the several acts of Assembly.
The plaintiff presented seven, and the defendant five, prayers to the court, the former, save the seventh, wore granted, and the latter refused. Of the latter, however, the first three were granted with the following qualification: «That the facts set out in said prayers may be considered in mitigation of any circumstances, if any there be, that could entitle the plaintiff to exemplary damages, if the jury find that a trespass, in fact, was committed by the defendant, as alleged.”
The law contained in the plaintiff’s first prayer is admitted. The second prayer of the plaintiff asks the court to
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Lk Grand, C. J.,
delivered the opinion of this court.
This action was brought by the appellee, to recover damages for a trespass alleged to have been committed by the appellant. The principal facts of the case, as developed both on the part of the plaintiff and defendant, may be thus stated: The plaintiff' and defendant are brothers, and they married sisters; defendant, before, at the time, and since, lived in the house of, and with, his wife’s mother. The plaintiff was married sometime in the month of May 1855, and went to house-keeping, and was separated from his wife within the same year. His wife, sometime in the fall of the year, left the house of her husband, and went to that of her mother, declaring that she could not longer live with him, as he treated her badly. The mother sent for the husband, and both she and his brother, the defendant, sought to reconcile the parties, but did not succeed in doing so. The husband and wife, however, lived at the house of the mother of the wife for about five days, when the husband went to the house of his father, which was situate about one and a half miles from Hagerstown. During his absence, the defendant, accompanied by others, employed for the purpose, entered his house, in Hagerstown, and took from it certain household and other furniture, and conveyed the same to the house of the mother of his wife, where it remained up to the time of the trial. Evidence was offered to show that this furniture, after its removal, was used in common by the family of the defendant, and that of Mrs. Emmerl, the mother, and by the wife of the plaintiff, and, also, that the removal [120]*120was by the direction and in the presence of the wife. There was also evidence that some of the property was that of the wife, prior to her marriage.
The plaintiff, during the progress of the trial, took exceptions to certain testimony allowed by the court to be adduced in behalf of the defendant. In the view we have of this case, it is not necessary we should advert to them, and the more particularly so, as the question which they present is raised by the prayers of the respective parties.
The instructions of the court must be construed in reference, exclusively, to the circumstances given in proof, and, therefore, it is n.o part of the duty of this court to consider the possible state of law as applicable to a state of facts not presented by the record. Whether or not a wife, while living and cohabiting with her husband, can commit a trespass on his property, or whether or not, while in such a condition, she can authorize a stranger to enter upon the premises of her husband and remove therefrom his property, are not questions now before us. The uncontested fact is, that at the time of the alleged trespass, the wife was living with her mother, apart and separate from her husband, without his consent, and contrary to his wish. And it is this state of case, and none other, with which we have to deal. It may be affirmed as undeniable, that there is no case (except one in which necessaries have been procured) where.a wife is living separate from her husband, that she has been regarded as his agent. From wise and humane consideralions, when the wife is free from blame, and living separate from her husband, she is permitted to bind him for her necessaries. It is not necessary to specify the particular circumstances under which the contract of the wife will bind the husband, when she is living apart from him; it is sufficient to say, in every case, her authority is limited to the making of contracts for necessaries. There is no book otease to the contrary of this. The acts, therefore, of the defendant cannot derive a justification from any license or authority conferred by the wife of the plaintiff, while she was living apart from him,
JBut it is supposed that, inasmuch as there was proof in the [121]*121case that some of the property removed was that of the wife, prior lo her marriage with the plaintiff, our acts of Assembly, of 1841, ch. 161, 1842, ch. 293, and 1853, ch. 245, effected an enlargement of her power, and diminution of the right of custody of her husband, and, in fact, conferred upon her the authority to order the entry and removal complained of. We do not concur in this interpretation of the several acts of Assembly. With the soundness of the policy in which they originated, we have nothing to do; that, was matter for the consideration, peculiarly, of the legislative branch of the government. Although this legislation has materially abridged the rights and power of the husband, we cannot bring our minds to believe it was the purpose of the Legislature, if not absolutely to annul the nuptial tie, to utterly annihilate, in every particular, the control and right of custody of the husband. So far as property is concerned, the object of those acts was to protect the property of the wife from the debts of the husband, and, during life, secure its enjoyment to the wife, free from the liabilities incurred by the husband; they confer on her no right to separate from her husband without cause, and to remove from his custody all her personal property. If she lias been misused, and, in the judgment of a court of competent jurisdiction, she deserve it, adequate protection and allowance will be afforded, not only out of property owned by her previous to marriage, but out of the estate of her husband. But, to sanction the doctrine that a wife, from mere caprice, may separate from her husband, and live apart from him in such manner as may suit her passions and inclinations, and to deprive him of all marital rights, is nothing short of allowing a wife, at pleasure, to annul the marriage contract; in fact, to restore her to her original condition, with but one exception, the privilege of forming another matrimonial alliance. Such a state of things would be revolting to the moral sense of the community, and jret the sympathizing spirit of some well-meaning persons induce them to contend for postulates, which, in their practical consequences, would realize the disruption of civilized society. Of course we are not to be understood as intimating any such results were favoied by counsel [122]*122in argument of this case; but as only indicating that, in our opinion, the latitudinarian construction sought to be placed, by persons of generous tempers, upon our legislation, would, if sanctioned, achieve results no less shocking to them than to the rest of the community. Of so great dignity is the contract of marriage esteemed by municipal law and religion, that all others, in binding stringency, are held to be inimitably inferior. This being so, it would require much to convince this court that the Legislature designed more than to protect the wife against the crime, improvidence, or misfortunes of the husband. Such a purpose can be, and is, fulfilled by giving the construction which we have given to the several acts of Assembly.
The plaintiff presented seven, and the defendant five, prayers to the court, the former, save the seventh, wore granted, and the latter refused. Of the latter, however, the first three were granted with the following qualification: «That the facts set out in said prayers may be considered in mitigation of any circumstances, if any there be, that could entitle the plaintiff to exemplary damages, if the jury find that a trespass, in fact, was committed by the defendant, as alleged.”
The law contained in the plaintiff’s first prayer is admitted. The second prayer of the plaintiff asks the court to instruct the jury that «the legal and proper measure of damages, as to the goods and chattels, is the true value thereof, as shown by the evidence in the case, at the time they were taken and carried away.” This, we think, the court properly granted. The affirmance of the judgment in this ease, and its payment, confer upon the defendant the ownership of the property taken by him, and, therefore, in any view of the case, ought he to pay its value at the time of the asportation. The third asked the court to saj* to the jury, they had the right to consider any facts and circumstances accompanying and giving color to the trespass, for the purpose of increasing the damages. This was clearly correct. The motives which induced a tortious act are always matters for the consideration of a jury. The man who, from bad and malicious intentions, commits a trespass, ought, in justice, to be dealt with more harshly than one [123]*123who acts from no vicious feelings, but ignorantly. Turner vs. Walker, 3 G. & J., 377. The 4th prayer of the plaintiff only requires the jury to find an additional and unnecessary fact, namely, that the property removed, after its removal, was used in common by the defendant and the inmates of the house of the mother of the wife of the plaintiff. The proof is all one way in regard to this particular, and as the other prayers were properly granted, this supplementary feet required to be found by the jury, ought not, and did not, create any embarrassment, with the court. The 5th, 6th and 7th prayers of the plaintiff, and the 1st and 2nd prayers of tihe defendant, relate to the orders given by the wife, and her agency; those of the plaintiff, denying the right of the wife to interfere, either because of her relation to the plaintiff as wife, or because of a supposed agency; and those of the defendant, claiming that the direction and superintendence of the wife of the plaintiff, if believed by the jury, ought to be taken and considered by them in mitigation of damages. We have already shown that a wife, situated as was the wife of the plaintiff, at the time of the removal, could not justify the trespass complained of, and, also, that because of the legal effect of the judgment in this case, the defendant acquires title to the property; it consequently follows, these three prayers of the plaintiff were properly granted, and those of the defendant rightfully rejected. To guard against misapprehension hereafter, as to the scope of this decision, we will observe, that in reference to negroes, as well as other personal property, our law recognizes the right of one person to have a life or lesser estate in such property, with a remainder over to another. Where the trespass consists of the asportation of property so situated, the owner of a life or lesser estate could only recover, so far as value is concerned, the value of the life or lesser estate, and the judgment would only confer on the defendant the interest of the plaintiff, without in any manner operating on the right of any other party. How the rights of parties so circumstanced are to be guarded, are questions which need not now be considered. The rejection of the plaintiff’s seventh prayer furnishes no cause of complaint to the appellant. It ought to have been granted. It declares [124]*124there is no evidence of agency on the part of the wife. The law confers none, and there is no proof of any having been given specifically; the fact is, the whole evidence negatives any such presumption. The defendant’s fourth prayer was correctly rejected, and for the reasons we have assigned in regard to the operation of the judgment. The third prayer of the defendant asks that if the jury should find that any portion of the property taken was the property of the wife, prior to her marriage, that then, as to that porlion of the goods, it should be considered in mitigation of damages. The meaning of this, if we understand it, is, that if the jury find the facts which constitute the alleged trespass, then, from the gross value of all the goods taken, should be deducted the value of the particular goods mentioned in the prayer. In speaking of the other prayers, we have stated several reasons Why the principle asserted by this prayer is wholly inadmissible. The judgment and its payment gives him title to this, as well as to the other property, and there can be no reason why he should not pay for it. In whom vest the proceeds of the judgment, can be no concern of his, he pays only for that to which he acquires title. The qualification attached by the court to the first three prayers of the defendant was proper, for the reason we have given in treating of the plaintiff’s third prayer.
(Decided June 15th, 1858.)
Judgment affirmed.