embezzled is her property; whereas upon the facts proved, it is clear that the property was property of her husband; and this allegation goes to the very essence of the offense, and is not capable of being made good by an amendment; for the property if described according to the truth, must have been laid to have been the property of the husband of Mary Robinson; and, if so laid, no offense whatever under the statute would be charged in the indictment. And the learned judge having reported that the objection was made, that the defendants could not be convicted on any of the counts in the indictment, I am of opinion that the conviction as to all three of the defendants is bad, and must be quashed.

MARTIN, B. I also am of opinion that this indictment fails. It fails as soon as it is shown that Mary Robinson was a married woman. The charge is laid under paragraphs three and eleven of the two hundred and twenty-first section of the Bankruptcy Act, 1861. In my judgment that section was introduced into the act in defense of the assignees and creditors of the bankrupt; and, when it is established that the supposed bankrupt is a married woman, then it is clear that her property is the property of her husband, and that her assignees are deprived of nothing; and therefore the indictment which lays the property as her property fails. With respect to the two cases of Reg. v. Scott1 and Reg. v. Levi,2 which have been commented on, in my judgment they were rightly decided; and I must say that, when a point has once been distinctly raised and decided in a reported case, I for my part regret to find such a decision criticised and disputed over again. When a point has once been clearly decided, I think it is far better to acquiesce in the decision, unless it can be brought for review before a higher court. In Reg. v. Levi 3 the court held that the advertisement in the London Gazette was conclusive against the bankrupt in criminal as well as civil cases. Now here I do not say that the adjudication, being against a married woman, was absolutely void. To hold that it was so would involve very serious consequences, as in that case every person bona fide acting upon it and dealing with the property, would be liable to be treated as a trespasser. The indictment, however, fails in substance, because it alleges that the property which Mary Robinson and the others are charged with embezzling is the property of Mary Robinson; and, as soon as it is shown that Mary Robinson is a married woman, that allegation is disproved.

BYLES, J. I agree with the Lord Chief Baron that the prisoners are entitled to their discharge; but I desire to express no opinion on the questions first, whether a married woman under these circumstances

128.

1 Dears. & B. C. C. 47; 25 L. J. (M. C.)

2 L. & C. C. C. 597; 34 L. J. (M. C.) 174.

8 L. & C. C. C. 597; 34 L. J. (M. C.) 174.

could be made a bankrupt; or, secondly, whether having been adjudged a bankrupt, she is not a bankrupt within the meaning of the statute by reason of the interpretation clause in the act of 1861; or, thirdly, whether she or her co-defendants were bound by any estoppel; or, lastly, whether the examinations were admissible against any of them. The ground on which I rest my judgment is, that the goods were from the first, and notwithstanding the bankruptcy, valid or invalid, still remained the property of the husband, and that he, at the time of the bankruptcy, was not merely in the situation of a person having a title to the goods though out of possession, but of one who, having a title to the goods, was also in actual possession; for it appears to me that on no supposition could the goods be the property of the bankrupt or of her assignees, and thus that they were at the time of the bankruptcy not only the property of the husband, but in his possession by reason of the possession of his wife.

KEATING, J. I am also of the opinion that this conviction can not be sustained; but I prefer to rest my judgment upon the ground stated by my brother Byles.

SHEE, J. I also think the conviction, as to all three of the defendants, bad. Mary Robinson, having, before the commission by her of the alleged offense, been adjudicated a bankrupt, and having taken no steps to dispute or annul the bankruptcy, was, in my opinion, by the express enactment of the two hundred and twenty-ninth section of the 24 and 25 Victoria,1 (the interpretation clause), a bankrupt. Of the fact that she was a bankrupt, the production of the Gazette of the 27th of February, 1866, was, as decided in Reg.v. Levi,2 on section 233 of the 12 and 13 Victoria,3 conclusive evidence. Although Mrs. Robinson was a feme covert, I should have thought it very clear that, if she had after her adjudication been committed as a bankrupt to prison, and her gaoler had suffered her to escape, he would have been liable under the 12 and 13 Victoria, to the forfeiture enacted; and I see no good reason for doubting that she might have been convicted of several of the misdemeanors which are declared to be such by the two hundred and twenty-first section of the 24 and 25 Victoria. She is charged, however, in all the counts of this indictment, with having embezzled, concealed, or otherwise unlawfully dealt with her property; and the other defendants are charged with having aided her in so doing. In order to support those charges, it was necessary to prove that the property in question was the property of her, Mary Robinson. The proof was that it was the property of Robert Robinson; and on that

1 ch. 134.

L. & C. C. C. 597; 34 L. J. (M. C.) 74. ch. 106.

3 ch. 106, sec. 274.

4 ch. 134.

ground I agree with my Lord Chief Baron and the other members of the court, that the conviction was bad, and must, as to all the defendants, be quashed. His objection to the conviction is not technical, but substantial. The law of husband and wife, as respects the dealings of a wife with third persons, is but a branch of the law of agency. There was some evidence in this case that the wife carried on her trade with the knowledge and authority of her husband. Her dealings might probably have heen held to be his dealings; and the property which was called her's in the Court of Bankruptcy certainly belonged to him. In taking steps to vest it in assignees, under the provisions of the Bankruptcy Act, without his authority, she did what was, as respects him, and probably also as respects some of her creditors, wrong; and it is quite consistent with the facts of the case, as reported to us, that, on better information, she desired to retrace her steps and preserve the property in question to be disposed of by its true owner. It is enough, however, to decide this point on the ground that a material allegation in all the counts of indictment, the allegation that the property was her property, was disproved by the evidence which has been reported to us. As respects the point of the admissibility of the examinations, it has been decided in Reg. v. Scott,1 that the maxim that no man shall be compelled to criminate himself, has, in the case of the examination of bankrupts and others in bankruptcy, been annulled by the Bankrupt Act. Conviction quashed.

FORCIBLE ENTRY AND DETAINER - NO FINE CAN BE IMPOSED ON WIFE.

STATE v. HARVEY.

[3 N. H. 65.]

In the Supreme Court of New Hampshire, May Term, 1824. Forcible Entry and Detainer may lie against husband and wife jointly where the forcible entry is the joint act of both; but no fine can be imposed upon the wife.

This was a writ of certiorari issued on the motion of the respondents, commanding two justices of the peace for this county to certify their doings, upon a certain process of forcible entry and detainer, had be fore them, on the complaint of Levi Willard against the respondents. Willard's complaint alleged, "that the said Willard, on the 27th of

1

1 Dears. & B. C. C. 47; 25 L. J. (M. C.) 128.

December, 1822, was seized and possessed of a certain farm in Surry, in this county, bounded, etc., and being so seized and possessed, the said Jonathan Harvey and Roxana, his wife, into the same farm did enter, and from thenceforth the possession of the same farm have wholly refused to deliver to the said Willard, and the same with force and arms, and with a strong hand, have unlawfully held and forcibly detained from the said Willard, and still unlawfully, violently and forcibly hold and detain from the said Willard, contrary to the statute in such case made and provided, and against the peace."

The respondents appeared before the justices and said they were not guilty, and the cause was committed to a jury, who returned a verdict, "that the facts alleged in Willard's complaint were true, that the said Harvey and wife were guilty, and Willard ought to have restitution of the premises immediately.”

Whereupon it was considered by the justices that Willard have restitution, and recover against Harvey and wife, costs taxed at $23.94, and a fine of $1.

J. Parker, for the State.

J. Wilson, for the respondent.

RICHARDSON, C. J. In this case the forcible detainer is alleged as the joint act of the husband and wife, and it is contended that this process can not be supported against a wife for acts done jointly with her husband.

In order to ascertain the weight of this objection, it is necessary to examine the nature of the proceedings in a case of forcible entry and detainer.

The mode of proceeding is prescribed by the statute of February 16, 1791,1 and although the proceedings are in the form of prosecutions for crime, and, in certain cases, a fine may be imposed upon the respondent, yet still the proceedings must be viewed in some respects as a private remedy. Thus the court may award to the complainant restitution of the premises; may adjudge costs to the complainant or respondent; the respondent is summoned to appear before the justices, and if he neglects to appear, they may proceed to the hearing in his absence. In these respects, the proceedings are, in their nature, a mere civil remedy.

It is said, that for wrongs, in which two persons may concur, a husband and wife may be sued jointly for the act of both.2 And we are of opinion that so far as redress for a private wrong, done by a husband and wife jointly, is sought by the process of forcible entry and detainer, the wife may be made a party.

11 N. H. Laws, 341.

21 Chitty's Pl. 81; Yelverton, 106; 1 Ventris, 93; 2 Levintz, 63.

But in this case, a fine was imposed upon the husband and wife jointly, and it is contended that the wife could not be liable to punishment for an act done jointly with her husband, because, in such case, she must be presumed to act by his coercion. This exception must in our opinion prevail, and the proceedings, so far as relates to the fine, must be quashed. But the rest of the proceedings may be affirmed.2

INDICTMENT AGAINST HUSBAND AND WIFE - ACQUITTAL OF FORMER, CONVICTION OF WIFE BAD.

RATHER V. STATE.

[1 Port. 132.]

In the Supreme Court of Alabama, 1834.

In a Proceeding against a Husband and Wife for obstructing a public road, where he is acquitted and she is convicted, the judgment is bad and must be reversed.

This was a proceeding for the obstructing of a public road. The jury having taken the case on the plea of not guilty, found Harriet Rather guilty and acquitted James Rather, the husband. The judgment of the court was that "James Rather go hence without day and that Harriet Rather forfeit to the State of Alabama the sum of $870.” The court reserved several questions for the Supreme Court. Wilson, for plaintiff.

The Attorney-General, contra.
SAFFOLD, J.

(After passing on other points.)

The last asssignment presents for our consideration, the question, whether for an offense of this kind, a feme covert is subject to a conviction and judgment for the forfeiture, without being joined with her husband. To establish error in the judgment, reference is made to Reeves' Domestic Relations,3 where it is said, that "for offenses by the wife against the laws where the punishment inflicted is nothing more than a fine, the husband is liable with the wife in all cases." That it is otherwise where imprisonment or corporal punishment is to be inflicted. He also says, "if the wife be liable to the penalty of a statute, the husband must be a party to the action or information." The principle is said to be general that for fines and forfeitures incurred by the act of the

1 Hawkins P. C., cap. 1, sec. 9; 1 Mass. 476, Com. v. Trimmer, 10 Mass. 152, Com. v. Neal, post.

2 3 Mass. 268; Com. v. Carpenter, 5 Mass. 420.

8.69.