STATE v. ROBINSON. McGowan v. Harris, 120 N. C., 139, where the authorities are collected. Formerly and prior to the enactment of the present provision of the law (Revisal, sec. 591), the rule was held to apply to a case where the Judge had died or his term had expired. So where the plaintiff was prevented from issuing an execution by the act of the County Court in erroneously refusing his application for one, and that Court was afterwards abolished before its error could be corrected by the mandate of this Court, to which an appeal had been taken, it was held that he should not be prejudiced by the error and the subsequent act of the law in abolishing the Court from which the execution would have issued. Isler v. Brown, 66 N. C., 556. See, also, Pell v. Linnell, L. R., 3, C. P., 441; Rex v. Edwards, 4 Taunton, 309. In Regina v. Justices, 15 Q. B. (69 E. C. L.), 88, the notice of appeal was not served in time by reason of the respondent's death, and the Court held that the condition of giving notice, annexed to the right of appeal, having been imposed by the law, and performance of it having become impossible by the act of God, the appellant was excused from such performance, and accordingly ordered the appeal to be heard as if the notice had been duly given. And substantially the same ruling was made in Newton v. Boodle, 3 C. B. (54 E. C. L.), 795. There the appellant lost the benefit of a bill of exceptions tendered to the ruling of a Judge at nisi prius, or at the assizes, by the death of the Judge and without any default of his own, and the Court permitted him to move for a new trial, notwithstanding the proper time had elapsed, so that he might be restored to the position he would have occupied if the bill of exceptions had not become abortive by the death of Chief Justice Tindal of the Court of Common Pleas, before it could be sealed and perfected by that Judge who had presided at the trial. The remedy was an adequate and an appropriate one under the practice of the Court at STATE v. ROBINSON. that time. Under our procedure, the remedy must be found in merely ordering a new trial. We need not decide that the case should be treated as if the motion had been made, because it would have been made if the defendant's opportunity for making it had not been lost accidentally and by no fault. on his part, or because, further, the Solicitor has agreed with the defendant's counsel upon a case on appeal and has thereby consented that it may be so treated, for even if we should so decide there would appear to be error which necessitates another trial. We simply grant a new trial because the defendant has lost her appeal by an act of God, which she could not foresee and the consequences of which she could not avoid. As said by Chief Justice Taylor in State v. Powers, supra, "under the circumstances, there is no other mode by which the justice of the case can be attained." Our opinion on the merits has been expressed, thinking that it might end the prosecution unless the facts as now presented are materially changed, which does not now seem to be probable. Where a case must go back for another trial, it is not only proper, but it may be fairly regarded as a duty of the Court to decide upon the legal merits, if it appears that the State cannot ultimately succeed in the prosecution or the plaintiff in the litigation. It prevents the useless expenditure of time and the unnecessary accumulation of costs, and there are other and perhaps weightier reasons for taking such a course. Why order a new trial unless there was error, and how can we know whether there was error or not unless we examine into the merits of the case? New Trial. CLARK, C. J., concurring in result: The defendant has lost her right of appeal by no fault of her own, but in consequence of the illness of the Judge, who was taken ill and STATE v. ROBINSON. could not proceed to judgment. The succeeding Judge could neither impose judgment nor "settle a case on appeal," as he had no personal knowledge of the incidents of the trial. The only remedy is in ordering a new trial. Indeed, the Judge might well have instructed the jury that there was no evidence that the defendant voluntarily abandoned the work. This renders it obiter to discuss the merits of the case. It is true that Syme v. Riddle, 88 N. C., 463, and some cases following it, have held (not without question, however) that a husband is entitled to the earnings of his wife; but in my judgment that decision is opposed to the entire thought and civilization of the day and ought not to be held now as authority. It was based upon the preconceived opinion of Judges who rested their decision upon the barbarous doctrine of the common law under which a woman upon marriage became non sui juris, and her husband took her property and her earnings as fully as a master became entitled to the property and earnings of his slave. The decision in Syme v. Riddle is directly opposed to the language of the Constitution, Art. X, sec. 6: "The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may after marriage become in any manner entitled, shall be and remain the sole and separate estate and property of such female." This guarantees her control of her property of all kinds, whether acquired before or after marriage, and it can make no difference whether it is income from her property or earnings from her labor. Of the two, the wife's right to control the latter is stronger of natural right. There can be no force in the argument used in Syme v. Riddle, that her earnings are needed for the support of the family, and therefore her husband should have them, for there is no guarantee that he will so apply them; indeed, there is much less certainty thereof than that the wife and mother will use her earnings for the benefit of her children. Besides, STATE v. ROBINSON. by the same token, as it devolves especially upon the husband to support his wife and children, there is a stronger reason that he shall not dispose of his earnings without his wife's concurrence than that she shall be constrained not to receive and use her own earnings without the husband's consent. By unanimous decision of the Court of Appeals in England in the Clitheroe case (Reg. v. Jackson), Q. B. D. (1891), 697, it was held that the husband could not enforce the unwilling companionship of the wife. The law now recognizes the equality of rights of both parties to the marital relation, and no longer asserts the inferiority or subjection of the woman. But argument ought to be out of the question in view of the language of the Constitution. In Syme v. Riddle, 88 N. C., 463, and that class of cases, the Court overlooked the fact that there is no statute with us giving the wife's earnings to the husband, and that the Constitution had entirely abrogated the common-law doctrine as to the subjective status of the wife. In England the Court of Chancery by judicial legislation, pure and simple, originated the status of the wife's separate property, and created the doctrine, by judicial enactment, of "charging in equity," which has since been completely repealed and effaced by the more progressive action of Parliament. In 1870 Parliament enacted that a married woman was entitled to her earnings, for the above action of the courts had applied only to the wealthier classes, to married women owning property, which the Court of Chancery could reach and control. In 1882 Parliament enacted in substance the provision of the North Carolina Constitution, that a married woman's property of every description, whether acquired before or after marriage, shall be in her sole control, and went further by dispensing with any necessity of the husband's assent to conveyances of the wife's property (which is the only restriction upon her freedom of control required by our Constitution), and gave the wife absolute freedom of contract. STATE v. ROBINSON. The Judges of England being, as sometimes is the case with courts, unable or unwilling to recognize the completeness of a change made by an enactment of the law-making power, held, notwithstanding the broad terms of the Act of 1882, that if a married woman possessed no property at the time she made a contract, her subsequently acquired property could not be subjected to execution. In 1893 Parliament swept away this refinement, and ever since in England a married woman's property rights and her right to contract are the same as her husband's. The same is true of New York (from whose Constitution the married woman's clause in our Constitution is copied), and in most other States. 1 A. and E. Enc. (2 Ed.), 522. The above summary of the changes in the English law is taken from the Century of Law Reform, 358-370; Dicey's Law and Opinion in England 373, 395. Professor Dicey in summing up these statutory changes says that they made simple and plain and more complete the changes which the Court of Chancery by ingenious and successive tentative decisions had made in favor of the daughters of the wealthy, and that Parliament applied the benefits of "the change to the daughters of the poor as well as in favor of the daughters of the rich," which the courts had done. It would seem, indeed, that the wife here had a right to her earnings; the Constitution so says, and there is certainly no statute upon our books to the contrary. As the husband went home every Saturday and spent Sunday with his wife, and there is no evidence that he raised any objection to her working the crop, the jury would doubtless have found upon proper instructions that the defendant's contract for work was to aid in the support of herself and family. They could hardly have supposed in reason that it was for any other purpose. This being so, she had a legal right to agree that the product of her labor should go to the payment for provisions furnished her, being necessaries for herself and family. The Consti |