McCampbell v. McCampbell.

husband directly to her during the coverture.

The chancellor

granted the relief sought, and the defendants appealed.

The estate is solvent and therefore, no question touching the rights of creditors is involved. Nor is there any serious difficulty in regard to the facts. At the time of the marriage of the testator and complainant, the complainant owned some little personal property, and a few hundred dollars due to her by note, and as her distributive share of her father's estate. The note in controversy is for $100, and bears date the 23d of June, 1866, about nine years before the death of the husband. The proof shows that the husband permitted the wife to hold and renew in her own name the notes held by her at the time of the marriage, or afterwards received. There is also proof that the husband intended that the wife should have all the property brought by her into the marriage; that no part of it should be used for the support of the family, or be divided in the division of the estate. In 1871 he made a will in which he bequeathed to his wife, among other things: "All the notes of hand in my possession that are taken in her name either before or since the marriage." In a subsequent will, which is the one under which the defendants are acting, he proposed to insert a similar provision, but the draughtsman told him it was unnecessary, the notes being payable to her. One of these notes of a third person was found in a pocketbook in a chest in which the testator kept his papers, and to which both the husband and wife had access. In the same chest was found the note in controversy, loose among the papers. The complainant had claimed that there was such a note, and it was found upon search in the presence of the parties. The complainant testifies that the note was given for money received as part of her distributive share of her father's estate. This fact is, however, not material to her rights.

The law of this State is that a wife is entitled, by right of survivorship, to all her choses in action not reduced to possession by the husband during coverture. Bryant v. Puckett, 3 Hayw. 252; Ross v. Wharton, 10 Yerg. 190. And there is in this respect no distinction between a chose in action accruing to the wife during the coverture, and a chose due her before marriage. Cox v. Scott, 1 Memph. L. J. The law is the same if the chose be made payable to husband and wife, whether the consideration pass from the wife, McMillan v. Mason, 5 Col. 263, or from the husband. Johnson v. Lusk, 6 Col. 113; S. C., 1 Tenn. Ch. 3. And creditors of the husband

248.

McCampbell v. McCampbell.

cannot reach the choses in action of the wife without his active aid in reducing them to possession. Snowden v. Lindsley, 4 Col. 122; Harris v. Taylor, 3 Sneed, 536; Embry v. Robinson, 7 Humph. 444. The wife is moreover entitled to a settlement out of such chose as against the husband and his creditors. Dearin v. Fitzpatrick, Meigs, 551. Whether an act of the husband in converting a chose in action of the wife is a reduction into possession depends upon his intention. If he actually collect the money, but only as the agent of the wife, and invest it in property for her benefit, the property will belong to the wife, even against the husband's creditors, although the title be taken to the husband. Ready v. Bragg, 1 Head, 512. So, if the wife make the collection, and with the consent of the husband, vest the money in realty in her name. Cox v. Scott, 1 Memph. L. J. 248. And the fact that the husband assents to what is done is sufficient to uphold the right of the wife, and exclude the idea of reduction into possession by him, without proof of an express promise on his part. Cox v. Scott ut supra; Tarbox v. Tonder, 1 Tenn. Ch. 164, 168. A consideration passing from the wife will sustain a direct conveyance of property by the husband to her, and the very nature of the transaction will fix the property, even if personalty, with a trust for the separate use of the wife without any words to that effect. Powell v. Powell, 9 Humph. 477; Saunders v. Harris, 1 Head, 207. And an ante-nuptial settlement will prevent the note of a firm, of which the husband is a partner, previously executed to the wife, from being extinguished by the marriage. Bennett v. Winfield, 4 Heisk. 440. And sustain the wife's right to the proceeds of such a note executed after the marriage. Cowan v. Mann, MS. opinion, by FREEMAN, J. At an early day, it was held that the consideration. of money borrowed from the wife would, in equity, make the husband a trustee for the wife. Slanning v. Styles, 3 P. Wms. 334. If, therefore, a note be given by the husband to the wife for money advanced by her out of her separate estate, it constitutes a declaration of trust in favor of the wife. 1 Dan. Neg. Inst., § 241, citing Murray v. Glasse, 23 L. J. Ch. 126. To the same effect seems to be the case of Huber v. Huber, 10 Ohio, 37, cited, with approval, by Judge TURLEY, one of the most eminent of our predecessors on this hench, in Powell v. Powell, 9 Humph. 488. And so, in principle, is the decision upon an obligation of the husband made directly to the wife, promising to pay money borrowed, in the case of Hind's Estate, 5 Whart. 138.

VOL. XXXI-79

Reneau v. State.

These principles are in accord with the current of authority in other States. 1 Bish. Mar. W. 119 et seq., 123, 161, 728, 757; 2 Story Eq. Jur., § 1373; Perry on Trusts, § 639.

The facts bring this case within the rule. The declarations of the husband, his acts and the circumstances show that it was not his intention to reduce the wife's choses in action to possession, and the execution of the note constituted a declaration of trust in favor of the wife which equity will enforce, there being no question as to the rights of creditors.

Ordinarily, when a husband is charged as a trustee with the funds of the wife, he will not be held liable for the interest used for their common benefit. Lishey v. Lishey, 2 Tenn. Ch. 5; Hind's Estate, 5 Whart. 138. But this doctrine proceeds on the ground of an agreement on the part of the wife, express or fairly implied, that the interest might be so used, and that it was used. The evidence in this case fails to show any such agreement or use of the money, and on the contrary, fairly implies, if it does not positively establish, that it was the intention of the husband to give the wife the benefit of the interest, as well as the principal.

Affirm the decree with costs.

RENEAU V. STATE.

(2 Lea. 720.)

Oriminal law-homicide-officer shooting prisoner to prevent his escape.

Where an officer had in custody a prisoner charged with a misdemeanor, and the prisoner trying to escape, the officer shot and killed him, without intending his death, he was guilty of manslaughter. (See note, p. 628.)

ONVICTION of manslaughter. The opinion states the facts.

CONVICTION

J. M. Meek and J. P. Swann, for defendant.

Attorney-General Lea, for State.

MCFARLAND, J. The prisoner appeals from a conviction of manalaughter for the killing of Vineyard Thomas. The facts are that

Reneau v. State.

Thomas, the deceased, was arrested by the prisoner, who was a constable, under a warrant charging an assault and battery, before the justice of the peace. Thomas pleaded guilty, and was adjudged to pay a fine and costs, and in default of security was committed to jail, and in the exccution of a mittimus issued by the justice for that purpose, the prisoner started with Thomas to the county jail, accompanied by another person as guard. On the route Thomas started to run and make his escape. Neither the prisoner or his guard pursued, but after commanding Thomas three times to halt, and not being obeyed, the prisoner fired two shots at Thomas, one of which took effect, killing him almost instantly. The prisoner is shown to be a man of good character, and he expressed regret at the result, saying that he did not intend to kill the deceased. The latter was of bad character for violence, and had threatened that he would not submit to arrest. The law on this subject, as laid down by Mr. Bishop, is in substance, that an officer having a prisoner in custody for felony who attempts escape, will be excused for killing him if he cannot be otherwise retaken, but if he can be otherwise retaken in any case without resort to such harsh measures, it will be at least manslaughter to kill him. But in cases where the person slain is arrested or held in custody for a misdemeanor, and he fly or attempt to escape, it will be murder in the officer to kill him, although he cannot be otherwise overtaken; yet under some circumstances, it may be only manslaughter, as if it appear that death was not intended. 2 Bish. Cr. Law, §§ 648, 649. It is considered better to allow one guilty only of a misdemeanor to escape altogether than to take his life. And we may add that it may be a question worthy of consideration whether the law ought not to be modified in respect to the lower grade of felonies, especially in view of the large number of crimes of this character created by comparatively recent legislation, whether as to these even escape would not be better than to take life. The charge of the judge in this case was in accord with the law as above stated, and the jury have given the prisoner the benefit of all doubts, and convicted him of the lower grade of homicide. It is argued that the offense for which the deceased was arrested was in reality a felonious assault, and the prisoner had the right to hold him in custody for this grade of offense, but it clearly appears that the warrant under which he was arrested charged only an assault and battery, and the judgment and mittimus of the justice only committed him in default of security for fine and costs for a

Reneau v. State.

misdemeanor. We see nothing to change the principle, in the fact that the deceased had been adjudged to pay the fine and costs by the justice of the peace, as to the duties of the officer. His duties were the same, whether he held the prisoner in custody after or before the judgment of the justice. The prisoner doubtless acted under the belief that erroneously prevails as to the rights of a public officer, that is, that he may lawfully kill a prisoner if he fails to obey his command to halt. This is a very erroneous and very fatal doctrine, and must be corrected. Officers should understand that it is their duty to use such means to secure their prisoners as will enable them to hold them in custody without resorting to the use of fire-arms or dangerous weapons, and that they will not be excused for taking life in any case, where, with diligence and caution, the prisoner could be otherwise held.

While the prisoner in this case seems to have honestly entertained the opinion that his duty required him to do what he did, and to have acted entirely without malice, and while he is entitled to strong sympathy, still we are constrained to affirm the judgment.

NOTE BY THE REPORTER. Wharton (1 Cr. Law, §§ 404, 406) draws the same distinction between felonies and misdemeanors, in respect to the officer's right to kill to prevent escape. As to misdemeanors, he says: Unless it be in case of riots, it is not lawful for an officer to kill a party accused of misdemeanor if he fly from the arrest, though he cannot otherwise be overtaken. Under such circumstances (the deceased being only charged with a misdemeanor), killing him intentionally is murder; but the offense will amount only to manslaughter, if it appear that death was not intended."

In Skidmore v. State, 2 Tex. Ct. App. 20, a policeman was conducting a prisoner to the calaboose, when the latter stopped and refused to go further, and tried to get away, whereupon the policeman struck him over the head with a six-shooter pistol. There was no evidence that the prisoner was assaulting the policeman, and it was proved that other persons were within call, but that their aid was not sought by the policeman. Held, that, under the circumstances, the policeman was not justified in striking the blow, and his conviction fc an aggravated assault affirmed.