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person with whom such merchandise shall have been deposited, as the produce of the sale thereof, after satisfying the amount justly due to such person by reason of such deposit.
Sec. 6. Nothing contained in this act shall authorize a common carrier, warehouse-keeper, or other person to whom merchandise or other property may be committed for transportation or storage only, to sell or hypothecate the same.
Sec. 7. Every factor or agent who shall deposit any merchandise entrusted or consigned to him, or any document so possessed or entrusted as aforesaid, as a security for any money borrowed or negotiable instrument received by such factor or agent, and shall apply or dispose of the same to his own use, contrary to good faith, and with intent to defraud the true owner; and every factor or agent who shall sell any merchandise entrusted or consigned to him, in the like manner, and with the like fraudulent intent; and every other person who shall knowingly connive with or aid or assist, any such factor or agent in any such fraudulent deposit or sale, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by fine and imprisonment, at the discretion of the court in which such conviction shall take place.
Sec. 8. Nothing contained in the last preceding section, shall be construed to prevent the court of chancery from compelling discovery or granting relief upon any bill to be filed in that court, by the owner of any merchandise so entrusted or consigned, against the factor or agent by whom such merchandise shall have been applied or sold contrary to the provisions of said section, or against any person who shall have been knowingly a party to such fraudulent application or sale thereof; but no answer to any such bill shall be read in evidence against the defendant making the same, on the trial of any indictment for the fraud charged in the bill.
ART. III.-TAX ON TRUST PROPERTY.
Liability of a husband to be taxed for property held in trust, of
which his wife is entitled to the interest. [Though the following opinion relates to a question arising on a statute of Massachusetts, yet as a part of the reasoning is of a general character, it will not be wholly inapplicable in
other states, where the provisions of tax acts may be different from those particularly referred to in the opinion.]
A B deposited with the Massachusetts Hospital Life Insurance Company the sum of $20,000, upon the special trust that said Company shall and will yearly, on the first day of January, pay the dividends and interest of said sum, to the wife of C D, duriog her natural life, upon her separate order and receipt, to be dated on or subsequently to the several days when such payments shall severally become due, and for her separate use, free from the debts, control, or interference of her husband; and the Company thereupon gave their obligation to A B, promising to pay over the dividends and interest aforesaid, in manner aforesaid, and after the decease of the wife of C D, to transfer and pay the principal sum aforesaid, and all the interest then due thereon, to her children, or their issue, if any be living, and on failure of such issue, to said A B, her executors, or administrators.
The first question is whether C D, the husband, is liable to be taxed in the town of E, where he resides, or elsewhere, for the said trust fund ?
By a statute enacted in March, 1829, it is provided that 6 persons entitled to the income of any personal property held by others in trust for them, shall be liable to be taxed for the capital or principal in the town where such persons reside.'
If C D, the husband of the cestui que trust, were entitled to the income, there would be no question that by the terms of this statute he would be liable to be taxed for the principal of the sum deposited in the Life Office; but this is not the case; it is vested in strict trust for his wise, the income is payable to her only, (in person, or by her order in writing,) and the principal, at her decease, becomes the property of her children, if she leave any, and if not, reverts to A B. The husband has not the least right to either principal or interest, otherwise than through the hands of his wise.
I am therefore of opinion that C D does not come within the purview of the statute, and that he cannot be taxed in E, or elsewhere for the capital sum abovementioned.
But here arises another question of equal importance, whether the wife of C D is liable to taxation for this fund. It is personal property held by others in trust, and she is
entitled to the income of it; she is therefore clearly within the terms of the act, if being a feme covert she is liable to taxation; but after reflection, I am of opinion that married women are not subject to the provisions of the acts for the assessment and collection of taxes, including the act under consideration. If a married woman is liable to be taxed, it would seem that she must be liable to all the legal consequences of being taxed, the last of which is imprisonment, unless the tax be paid. But how is she to do this? By operation of law, her husband, upon the marriage, becomes the proprietor of all her personal estate, and is entitled to the usufruct of her real estate; he is also entitled to all her earnings and acquisitions made after marriage; if a legacy be left to her, he may release it; if a note of hand be given to her, he may collect it, (Dean v. Richmond, 5 Pick. Rep. 561 ;) and in fact the income of the trust fund itself becomes the husband's property as soon as it is paid by the trustee into her hands. The wife has, therefore, no goods or chattels by which the warrant of distress could be satisfied, and must necessarily be committed to prison. She can make no contract whatever during coverture and consequently cannot sign a bond for the prison limits ; she must lie in close confinement until delivered by the same authority that placed her there.
But there is no case within my recollection where a married woman is liable to be committed to prison without her husband being also liable, (except for crime,) nor any case where she may be committed with him, unless it be for a debt of her own, contracted before marriage.
A married woman is incapable of contracting a debt for any purpose whatever; in common parlance it is said that the husband is, under some circumstances, liable for the debts of his wife, but this is an inaccurate mode of speech; the husband is sometimes liable for debts contracted by his wife, but they are his debts contracted by her as his agent, express or implied ; they are not the wife's debts in any sense. How then is the tax assessed on her to be collected ? It is shown that she has no goods or chattels to be levied on, which were her's before marriage; the income of the trust-fund, if there be any, is not her's till it has been paid to her, and then it immediately becomes her husband's property, and I conceive cannot be seized for a debt or duty for which the husband is not liable. The only alternative is commitment to prison, which is un
precedented for such a cause, and would not be sanctioned by the courts of law, without an unequivocal expression of the legislative will and intention; for on the one hand, it would be an interference with the rights of the husband, and on the other it would subject the wife to penalties from which she could obtain no remedy or relief; for by the act of 1829, the mere possession by a trustee, of personal property for the use of a married woman, is sufficient to render her liable to be taxed for the value of it; neither her assent nor her husband's is required; the fund itself may be unproductive, still she is to be taxed for the capital. As the legislature have not said this in express terms, I do not believe the courts will say it for them. The legislature have provided no specific means for collecting taxes assessed under and by force of this statute of 1829; they leave them to the common remedy for the collection of taxes in general; but the legislature were early sensible of the impossibility of collecting taxes of married women; for in 1789, they enacted that where a tax was assessed on a feme sole, who was married before payment of it, the collector might maintain an action for the amount in the same manner as he could for any other debt of a feme covert.
This remedied the difficulty in that case, but cannot be extended to any other.
The want of a legal remedy to recover a tax assessed on a female after marriage, is almost a conclusive argument against the legality of the assessment, for when a duty is prescribed by statute, and remedies are provided for the breach of it, which remedies cannot be applied to a particular subject, it may fairly be inferred that the subject was not within the view of the legislature, when they exacted the duty.' Ayers v. Knox, 7 Mass. R. 310. This, I think, is precisely applicable to the case before us. The act of 1829, is an act in addition to the general statutes concerning taxation, and consequently a remedy is provided for the recovery of this new duty or tax from all but married women; as to them there is no remedy, as I think has been shown, and therefore we may fairly conclude that the legislature did not intend to comprehend them in the provision.
For these reasons I am of opinion that the wife of C D cannot legally be assessed for the capital or principal of the sum deposited by A B in the Life Office, as above stated.
Another inquiry has been made by CD, whether he is
taxable for the income of the fund deposited in the Life Office, and if he is, whether he has any right to elect where he will pay such tax. To this I answer that C D is taxable for such part of the annual income received by his wife in January as may not have been expended or used up previous to the first of May following, under that item in the tax act specifying moneys on hand' as a subject of taxation, but for the accruing income, he is not liable to be taxed; for in the first place there is no clause in the tax act authorizing any assessment on the income of money, and if there were, the income of this fund could not be chargeable to C D till it was actually received; for if his wise should die before the first of January following the assessment, the income for the current year would belong to her children, if she left any, or otherwise to A B, and thus C D might be taxed for an income which never was and never could be his.
As to the other question; C D must pay such taxes as may be lawfully assessed upon him, in the place where he was an inhabitant on the first day of May. He can change his place of abode at his election, but wherever he dwells or has his home on that day, there he is bound to pay his taxes.
ART. IV.-RULES OF EVIDENCE.
Of Incompetency of Witnesses on account of Religious Opinion.
[The correspondent, from whom we receive the following article, authorizes us to make corrections. But we shall let his argument stand much as he presents it, though we were tempted to alter a few of the sentences, in which the peculiar Benthamic phraseology occurs. Ed. Jur.]
Perhaps there is no portion of the law, in which investigation of principles is more necessary, and will be attended with more valuable and important results, than that division which treats of the law of evidence. The rules of evidence will, therefore, be the subject of this and future numbers. In examining these rules, the substantive part of the law, that