Nolan v. Traber

Bowie, J., delivered the opinion of the Court. This appeal involves the right of a wife to an action for slanderous words imputing to her a crime committed by her jointly with her husband. The common law assuming that the free agency of a married woman is merged in the dominion of her husband, presumes that if a wife act in company with her husband in the commission of a felony, other than treason or homicide, she acts under his coercion and consequently without any guilty intent. Sir William Blackstone said this doctrine was at least a thousand years old in England, being found among the laws of King Ina, the West Saxon.

Hence, words which charged the wife with crimes in the presence of her husband, or jointly with him, imnuted no act for which she would be criminally liable, and therefore constituted no slander and were not actionable according to the earlier authorities. ⁴⁶⁸ An eminent jurist in a recent work says, this presumption may now be rebutted by positive proof that the woman acted as a free agent; and in one case that was much discussed, the Irish Judges appear to have considered that such positive proof was not required, hut that the question was always one to be determined by the jury on the evidence submitted to them. Rex vs. Stapleton, 1 Jebb. C. C., 93; Taylor’s Law of Evidence, p. 191, (6th Edition.) The relation of husband and wife, however absolute in the past, no longer implies such subserviency of the latter as to make her the slave of her husband. By gradual modifications of the common law, the wife has become in a great measure the peer of the husband in the control of her property and person, enjoying exemptions and privileges which raise her above all suspicion of' moral constraint, except in rare instances.

The legal status of the wife, although legally inferior in respect of the “ jus disponendi” of some species of property, and subjection to marital rights, is yet so elevated as to protect her from all necessity of compliance with the husband’s will in matters “ mala in se.” The better opinion would seem to be that the presumption of coercion by the husband, in cases of indictment or prosecutions against husband and wife jointly, is only prima facie, subject to be controlled by evidence that the wife intervened voluntarily and not by compulsion. Rex vs. Hughes, 2 Lewin C. C., 229; Rex vs. Pollard, 8 C. & P., 553; Rex vs. Stapleton, 1 Jebb. C. C., 93; 1 Greenleaf Evid., sec. 28, note 5; 3 Greenleaf Evid., sec. 7. The first count of the plaintiffs’ narr. alleged that the defendant charged the appellant, Bridget Nolan, with an offence for which she was liable to he prosecuted and punished criminally, if found guilty.

It does not charge that the act was done by the husband and wife in the presence of each other. The plaintiffs’ first prayer,