#### JOHN Q. BARBEE vs. WESTWOOD ARMSTEAD & AL.

A married woman oumot make a contract with her husband, except through the intervention of a third person, to whom the duty of enforcing it, in her behalf, belongs. It must be by deed, to which she must be a party.

Where a man had enticed away another’s wife, and he and the husband entered into a written contract, by which it was stipulated that the former should retain the wife and support her; Held, that this contract was against public policy, aud, at all events, that the husband could rescind it, by making a demand for the restoration of his wife, and, if this was refused, had aright to his action for the subsequent detention.

Held, that an action on the case will lie by the husband against one, who entices away his wife.

Appeal from the Superior Court of Law of Wako County, at the Spring Term 1848, his Honor Judge Card well presiding.

This was an action on the case to recover damages for enticing the wife of the paintifF to leave him and detaining her, whereby he lost her services and the comfort of her society. It appeared on his behalf, that his wife left him in August 1841, by the enticement of the female defendant, who lived with the defendant, Armstead, and is the mother of the plaintiff’s wife. She assigned, as a reason for it, that the plaintiff was lazy and did not provide for his family, and she did not wish her daughter to perish. And it also appeared that the plaintiff had a child by his wife before their separation, and that they continued to live with the defendants from August 1841 up to the trial. In the Spring of 1845, oras a witness said, speaking at the trial, about three years ago, he went with the plaintiff to the house of the defendant to demand his wife and *531child : that after some conversation between the plaintiff and the defendant, Armstead, the plaintiffdemandedof him the surrender of his wife and child: that the defendant said, he could bring them forth by speaking one' word, but he would not do it ; and further said to the plaintiff that his wife would not live with him because he had advertised her.

On the part of the defendant it appeared, that some time in the last of July or first of August 1842, the plaintiff and defendant Armstead, through the intervention of one or two of their neighbors, entered into a written contract, in which it was agreed that the defendant, Armstead, should keep the wife and child of the plaintiff, and should raise, educate and provide for the child by giving it the portion of his property intended for its mother. And it was also provided in the contract, that the plaintiff should be allowed to visit his wife and child, and remain with them not exceeding four or five days at any one time. It also appeared that the plaintiff had been at the house of the defendant in 1842 on one or two occasions before the written contract was entered into, and had said in reply to a message sent him by the defendant Armstead, that he, the said defendant, could, provide for his child better than he, the plaintiff, could, and as for his wife he did not think they could get on together. After the written contract, the plaintiff was seen at the house of the defendant on several occasions. It also appeared, that, after the written contract, the precise time not appearing, the plaintiff said he had sold his land, that he had understood his wife had a notion to come and live with him, but he did not wish her to do so. Through some of the witnesses it appeared, that the plaintiff led somewhat of an itinerant life ; and through others that he did not provide very well for his family. The child, as it appeared, was of tender years. The plaintiff‘s counsel insisted, that the written contract was *532void, because contrary to public policy; that on the demand of the plaintiff and refusal of the defendant to give up the wife, a distinct cause of action accrued,supposing there had been an assent on the part of the plaintiff. And the counsel also insisted, that the defendants were liable for the original enticement and detention of the plaintiff’s wife.

The Court charged, that all acts of enticement and detention of the plaintiff’s wife, previous to the 11th of June 1842, were barred by the statute of limitations, the writ not having been sued out till the 11th of June 1S45 ; that, if the wife was detained by the defendants from the custody of the plaintiff and against his will, between the 11th o>£ June 1842, and the execution of the written contract, he would be entitled to recover damages on that part of the case. In relation to the written contract,the Court charged, thatitwasvalid,andnodemand,on thepartofthe plaintiff, ior the surrender of his wife, would give him a cause of action after the execution of the said agreement.

The jury returned a verdict for the defendant.

A new trial was moved for and refused and the plaintiff appealed.

McRae and Busbee, for the plaintiff.

11, W. Miller for the defendants.

Nash, J.

That deeds, for the separation of married persons, may, by the laws of England, be valid and effectual, to many purposes, cannot be doubted. The principle has been affirmed in too many cases in that country,, to be now safely questioned ; yet that they are at variance with sound policy has been often diselared by many of the ablest English Judges — by Lord Rosslyn in Legard v. Johnston, 3d Vesey 358 — by Lord Eldon in Beard v. Webb, 2nd Bos. and Pul. 93, and in St. John v. St John, 11th Vesey 526 — and by Lord Elleneorouuii in Rodney *533v. Chambers, 2nd East 288, But if all these cases, decided in that country, upon that subject, be sustainable, they fall very short of being authorities in this. They are decisions, upon solemn deeds. To apply the principle tosueh a transaction as this, would be extending the evils complained of, to an alarming degree. It would be loosening another screw in the machinery of married life, marring its operations, weakening its obligations and producing discord and confusion, when peace and concord ought to reign. Without therefore intending to express any opinion upon the doctrine of the English Courts, or whether it is or is not to be introduced into this State, it is sufficient to say, the question does not arise here. A married woman cannot make a valid contract with her husband, except through the intervention of a third person, to whom the duty of enforcing it, in her behalf, belongs. It must be by deed to which she must be a party — as being deeply interested in the matter. Jones v. Waite, 35th E. C. L. R. 130, 142. If it were not so, she would be entirely at the mercy of her husband, and might at any-mo* ment and without notice be driven from her home and stript of all her rights and privileges, as a wife and mother. There is no deed of separation here, and, if the con» tract had been reduced to writing, it is but a parol contract between the plaintiff and defendant, to which the wife of the former was not a party ; a contract, in substance, giving to the defendant liberty to harbor the wife for no definite period of time, conferring on the defendant no interest whatever, and revocable by either at any moment. It also secured to the plaintiff the right to cohabit, at the defendant’s house, with his wife, at anytime he pleased ; and it is shown by the case, that the plaintiff did visit her at the defendant’s house after the contract, as well as before, and cohabit with her. It was neither in form or substance a contract for a separation, but simply a license to harbor the wife and child, securing *534ihe defendant against any legal responsibility for so doing, until withdrawn. The defendant, therefore, was a wrong doer, not only in the original act of harboring, but also for the continuance of it, after the' withdrawal of the license by the defendant. But it is urged by the defendant, that if the contiact was but a license,a demand of his wife by the plaintiff was no revocation. The license, being by parol, could be put an end to by parol, upon the principle of law “eo ligamine quo ligalur.” Nor is there any special form, by which it shall be effected : anything said or clone by the party giving the license, which notifies to the person enjoying it, that it is revoked, is sufficient. The authorities, cited by the defendant’s counsel on this point, do not sustain him. The reference to 1st Ch. Gen. Brae. p. 134 is incorrect as to the page; there is nothing thereon thatsubject. The cases from the English common law reports are rather authorities against him. That of Carpenter v. Blandford, from the 15th vol. was in assumpsit, to recover a deposit of money for failing to execute a contract for the purchase of a public house and furniture, the whole to be valued by appraisers on a particular day. At the time appointed, the plaintiff’s appraiser informed the defendant, that he could not meet on that day, but could the next. No objection was made. On the next day, the plaintiff appeared on the premises with his appraiser, when the defendant declined going on •with the business, and informed the plaintiff he ought to have come the day before — he was too late. The only point decided, that the defendant, in not notifying the plaintiff, when informed that his appraiser could not attend on the day appointed, that he would insist upon a performance of the contract agreeable to its terms, that he had waived his right to do so as a forfeiture, is '‘strictissimi juris.” The case of Lewis v. Pondsford, from the 34th E. C. L. R. 585, was an action of “quare clausum fregit.” The defendant had executed with his wife a *535deed of separation, but it was not executed by the trustee. The trespass consisted, in entering the house of the plaintiff, against her will, in search of his wife. The Court decided, that by the deed, a license was given to the wife, to live where she pleased. After this license, the Court say, “that he could not go to any person’s house to retake her; he should at least have given notice to persons that he revoked the license.” This is an authority tending to show, that, although the defendant had executed the deed, yet it operated only as a license to the wife and could be revoked by parol. The case of Warrender v. Wenrender, 2nd Clark and Finelly 561, is to the same effect. There Lord Brougham declares, that — notwithstanding a deed of separation had been executed, the husband had a right to reclaim his wife — his language is “no pledge can bind the party, not to reclaim his or her conjugal rights; foi^such pledge is against the inherent condition of the married state, and against public policy.” The plaintiff in this case, his license being by parol, had a right to reclaim his wife. His demand was a revocation of his license to the defendant, to harbor her, and he was a wrong doer in refusing to do so.

Finally, the defendant insists, that the plaintiff has misconceived his action, and ought to have sued in trespass. Mr. Chitty in the 1st Yol. of his treatise on pleadings, page 91, says that trespass is the appropriate remedy for seducing away a wife ; or seducing a daughter; but he does not say that it is, in either case, the only remedy ; and on the same page he states, that for the latter offence, it has been usual to declare in case.

The same principles govern the action for each injury; the legal inability of the wife or child to assent to the act. Where the injury is both immediate and consequential, either action can be supported — page 147. If there be a doubt as to the form'of the action in this case, it is whether *536the plaintiff could have maintained trespass for a detention, even after demand.

His Honor instructed the jury that for a detention of the wife before the 11th of June A.l). 1842, the plaintiff was not entitled to any damages, as three years had elapsed from that time, before the action was brought, which wason the 11th of June A. D. 1845, and that for the detention between the 11th of June 1842, and the making of the contract, an action would lie. In both these points no error is perceived. He further charged, that the contract was valid, and no demand, on the part of the plaintiff, for the surrender of his wife, would give him a caiise of action after its execution. In the latter part of the proposition there is error : for which a venire de novo ought to issue.

Per Curiam.

Judgment reversed and a venire de novo.