Vol. IV.]

STATE v. HAWES.

[No. 12.

any court, and when I say that, I mean that I have been unable to find any precedent bearing upon the particular question under consideration, — have embarrassed me, but I have felt it an obligation to maintain the integrity of my country in its plighted faith in a grave constitutional treaty. I have regarded this case as not the case of Smith N. Hawes, but a case involving the honor and integrity of my country. Some other judge than I must be selected to violate the plighted faith of a solemn treaty. I hold, under the solemn sanction of my oath, that I cannot violate that by now proceeding to the trial of Smith N. Hawes. I do not mean to say that may not hereafter be tried; but what I mean to say is that, in the face of the treaty herein referred to, he is not to be tried until there is a reasonable time given him to return to the asylum from which he was taken. He may by his own act put himself within the jurisdiction of this court, and may hereafter be tried. Upon that I now express no opinion.

he

Of course, in the consideration of this question, I have read all the correspondence between high public functionaries of my own government and that of Great Britain, especially as to the cases of Lawrence and Winslow; and while it is not proper for me to reflect upon the conduct of my own government, I must be permitted to say that the position taken by Great Britain on this treaty is more in consonance with human liberty and international law than the pretensions of my own government.

Mr. Webster (and it will not be denied that he was a great statesman and publicist), in reference to the leading case of McLeod, used the remarkable language, that the opinion and decision of the court in that case was not respectable. It was not permitted him to express any opinion as to the decision of Judge Benedict. In the Lawrence case, whatever may have been the diplomatic talk or judicial expressions, this great country instructed the law officers thereof not to proceed to the trial of a non-extraditable offence; and even in the case at bar, the United States has had a distinguished representative asking for a postponement or evasion of the decision whether Smith N. Hawes can be tried for offences for which he was not extradited.

I have not felt myself at liberty to evade any responsibility arising in this case. I believe it was Stephen Decatur who said: "My country, may she be always right; but my country right or wrong." That was not a judicial expression. My country should always be right. And, as a judge, I dare not enunciate any principle not right.

A husband and wife are jointly liable for a tort done by her in his absence, but under his direction and instigation.

Evidence of acts done by a husband in the presence of his wife, similar to those done by her in his absence, in execution of the same purpose, is admissible to show that the wife acted under his direction and instigation.

TORT. The declaration alleged that the defendants did forcibly enter the plaintiff's close, and wrongfully and forcibly remove, take, and carry away, and remove, cut, break up, and destroy the plaintiff's gate, to the injury and damage of the said plaintiff as laid in his writ; and "that the acts set forth and relied upon were committed by the said Ellen Foley alone, not in the presence of said Dennis Foley, but under his direction, and as his servant and agent, and as his acts as well as her own."

At the trial in the superior court, before Allen, J., the defendants contended that an action could not be maintained against the husband and wife under this declaration; but the judge ruled that the action might be maintained against both.

It appeared in evidence that the trespasses alleged were in the line of a way claimed by the husband, extending from a public highway, over the land of the plaintiff, which lay along the line of the highway, to the husband's land, lying at the rear of the plaintiff's land, where was situated the defendant's dwelling-house; and, for the purposes of the trial, it was admitted that the husband had a right of way through gates and bars from his land through the plaintiff's land in the line of the gateway to the public highway. The plaintiff offered evidence tending to show that the wife, in the absence of the husband, but, acting as the plaintiff contended, by the husband's direction and instigation, removed the gate from its hinges and threw it upon the ground at divers times, and at one time with an axe cut up and destroyed one half of the gate.

The plaintiff, for the purpose of showing that the husband encouraged and incited the wife to her acts, offered evidence of the acts of the husband, done in the presence of the wife, in removing the gate from its hinges and throwing it upon the ground. To this the defendants objected, but the judge admitted the evidence.

The judge ruled that for the acts of the wife done by herself alone, and without the knowledge and instigation of the husband, the plaintiff could not recover in this action against both defendants; but for the acts of the wife done in the absence of the husband, with his direction or instigation, the plaintiff could recover.

The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.

Vol. IV.]

PEARL V. HARRIS.

[No. 12.

C. A. Reed, for the defendants.
J. Brown, for the plaintiff.

GRAY, C. J. The instructions were correct. A husband and wife may be jointly sued and charged for a tort done by both of them, if she does not act by his coercion. Hyde v. S―, 12 Mod. 246; S. C. Holt, 101; Vine v. Saunders, 5 Scott, 359; S. C. 4 Bing. N. C. 96; Marshall v. Oakes, 51 Maine, 308. In Tobey v. Smith, 15 Gray, 535, a declaration in tort in the nature of trover against husband and wife was held bad, merely because it alleged the conversion to have been "to their own use,' whereas in legal contemplation it could not be to the use of the wife; and it was distinctly stated in the opinion, that, if the conversion had been alleged to have been to his use, the action could have been maintained. And in Heckle v. Lurvey, 101 Mass. 344, it was held that a wife was liable in tort for the conversion of goods of which she obtained possession by her husband's order. Even in criminal cases, the husband's mere direction and instigation will not protect the wife from liability for acts done in his absence and beyond his immediate influence and control; and the presumption of coercion, which exists when she acts in his presence, is prima facie only and may be rebutted. Commonwealth v. Butler, 1 Allen, 4; Commonwealth v. Feeney, 13 Allen, 560; Commonwealth v. Munsey, 112 Mass. 287; Commonwealth v. Lewis, 1 Met. 151, 153; State v. Cleaves, 59 Maine, 298. The statement in 2 Kent Com. 149, that, if the wife commits a tort" in his company or by his order," he alone is liable, is too general, and must be limited to the case of her acting by his coercion. The evidence of acts done by the husband in the presence of the wife, similar to those done by her in his absence, in execution of the same purpose, was competent to show that the latter were done by his direction and instigation, and therefore in law his acts as well as hers.

Exceptions overruled.

An agreement to submit to arbitration, the effect of which is to oust the courts of jurisdiction, is invalid.

A bill in equity for an account of a copartnership, one of the articles of which provided for the submission of disputed matters to arbitration, need not allege a refusal to refer by the defendants; and the defendants cannot defeat the jurisdiction of the court by alleging that they are and have been willing to refer under the articles of copartnership.

MORTON, J. The defendants' appeal from the order of the court appointing a master can only be sustained upon the ground that the agreement in the articles of copartnership, to refer all disputed matters to arbitrators, ousts this court of jurisdiction. But it is well settled that an agreement to submit to arbitration will not be held valid, either in law or equity,

Vol. IV.]

ROBERTS v. COCKE.

[No. 12

when its effect is to oust the court of jurisdiction. Wood v. Humphrey, 114 Mass. 185; Tobey v. County of Bristol, 3 Story, 800.

The defendants insist that a court of equity ought not, in its discretion, to entertain the case, because the plaintiffs in their bill do not allege a refusal to refer on the part of the defendants, and the defendants in their answer deny any refusal, and allege that they are willing to refer. It was not necessary for the plaintiffs to allege that the defendants have refused to refer. By bringing their bill they have elected to resort to the jurisdiction of this court, and the defendants cannot defeat that jurisdiction by alleging that they are and have ever been willing to refer under the articles of copartnership. We need not decide whether the court might, in its discretion, decline to proceed in the case, if it appeared that the plaintiffs unreasonably refused to submit disputed matters to arbitration, because it does not appear in this case that there was such unreasonable refusal on the part of the plaintiffs. Order affirmed.

Where, during the late war, a creditor resided within the territory of one of the belligerent powers, and his debtor within that of the other, such debtor is, under the rules of public law, entitled to abatement of interest during the continuance of the war. Where the debtor and creditor reside within the same territory, the mere existence of war does not furnish such a legal ground for abatement of interest.

In contracts for the payment of a sum certain, interest on the principal sum is a legal incident of the debt: the right to it is founded upon the presumed intention of the parties.

Wherever there is a contract, express or implied, for the payment of legal interest, the obligation of the contract extends as well to the payment of interest as it does to the payment of the principal sum; and neither court nor jury ever had the power to dispense with the performance of such contracts in whole or in part.

The laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of the contract, whether such laws affect its validity, construction, discharge, or enforcement.

While it is competent for the state to alter or change the remedy on a contract, this can only be done where the change does not impair substantial rights.

The act of the general assembly, approved April 2, 1873, entitled "An act to amend and reenact § 14, ch. 187, of the Code of 1860, in relation to interest," so far as said act confers upon courts and juries, in the suits therein mentioned, power to remit interest, as therein provided, on contracts entered into prior to April 10, 1865, which said courts and juries did not have under the laws in force at the time such contracts were entered into, is repugnant to the Constitution of the United States, and of this state, and is so far null and void.

And so much of the said act as empowers the courts to review judgments and decrees, upon motion, and to abate interest as in said act provided, is repugnant to the Constitution of the United States, and of this state, and therefore void.

Vol. IV.]

ROBERTS v. COCKE.

[No. 12.

THE facts are stated in the opinion.

F. M. Forbes, for the appellants.

Hunton, Brooke & Scott, for the appellees.

BURKS, J., delivered the opinion of the court.

The amounts in controversy in these cases are small. Besides the costs, in the first case, only $182, and in the second $119.41, not sufficient of themselves to give this court jurisdiction to review the judgments of the court below. Our jurisdiction is invoked, however, upon the ground set out by the plaintiffs in error in their petitions, that the act of the general assembly, under which the judgments were rendered, is unconstitutional and void; and we have given to the question, thus presented for our determination, that consideration which its importance demands.

Throughout our deliberations, terminating in the conclusion to which we have come, we have been guided by the wise and salutary rule enunciated by Chief Justice Marshall as long ago as 1810, in the leading case of Fletcher v. Peck, 6 Cranch, 87, generally followed by the courts of last resort in the several states in like cases, and by none more uniformly and implicitly than by this court. Griffin's Ex'or v. Cunningham, 20 Gratt. 31; Homestead Cases, 22 Ib. 266.

The question, says the chief justice, whether a law be void for its repugnancy to the Constitution, is at all times a question of much delicacy, which ought seldom if ever to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.

The act, the validity of which is drawn in question in these cases, was approved April 2, 1873, and is entitled "An act to amend and reenact section 14, of chapter 187, of the Code of 1860, in relation to interest." The section, as thus amended and reënacted, constitutes the 14th section of chapter 173 of the Code of 1873, p. 1120.

The amendment, in substance, empowers the courts and juries in all suits for the recovery of money founded on contracts, express or implied, or on causes of action, or on liabilities which were entered into or existed, or where the original consideration accrued prior to the 10th day of April, 1865, to remit the interest upon the original debts found to be due, or any part thereof, for the period between the 17th day of April, 1861, and the 10th day of April, 1865, or for any portion of said period. It further empowers the court, in which any judgment or decree has been rendered prior to the passage of the act, on motion of the defendant, upon ten days' notice to the plaintiff, to review such judgment or decree, and abate the same to the extent of the interest for the period aforesaid.

In the first of the cases now under review here, the plaintiff brought an action of debt in the court below upon a bond, which was in these words: