All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be addressed to the publishers. The Albany Law Journal. ALBANY, JULY 25, 1874. CONTRACTS OF MARRIED WOMEN. It is always more or less difficult for courts, as well as individuals, to overcome the conservatism created by long habit and continuous precept. Consequently the wheels of justice move heavily when a new motion is imparted to them by radical legislation. As an example we may instance the sweeping changes wrought by the married woman's acts of 1847 and 1848, and the subsequent amendments. A more radical and startling innovation was never effected, and our courts came up to its necessities with some degree of reluctance. We think it has at last come to be understood that a married woman may charge her separate estate by her contract, for the benefit of her estate, or for her own benefit upon the credit of that estate, in the same manner as if she were single. The only question ever to be inquired into is, has she charged her estate? In the first place, except as affecting the form of the contract, the consideration operating to induce the married woman to charge her estate is of no consequence. She may of course do it for the direct benefit of her estate, but she may also do it as surety for another. Yale v. Dederer, 22 N. Y. 450; Commercial Exchange Insurance Co. v. Babcock, 42 id. | 613. In the former case the wife signed a note with her husband for some cows purchased by him, and in the latter the obligation was an accommodation indorsement on the husband's note. She may even give it away. Thus Judge Comstock remarked in Yale v. Dederer, when it was first in the Court of Appeals (18 N. Y. 276), "Of course it is not to be denied that a wife may appoint or specifically appropriate her separate estate to the payment of her own or her husband's debts. She may if she pleases even give it to her husband." Again, a married woman may apply a portion of her property to the support of her husband and family, and the application will be supported even as against creditors of the latter. Buckley v. Wells, 33 N. Y. 518. In this case it is said: "The whole family received its support from the business and its profits, taking goods from the store as occasion required. No account was kept between them. The effect of the whole matter was that she supported her husband, and though the law does not enjoin this on the wife as a duty, it does not prohibit it as a wrong. If the property had come from him these would have been badges of fraud, but as it all came to her by inheritance she was merely exercising over her own property that dominion which it was the purpose of our statutes on this subject to secure." It has been doubted whether the wife could effectually charge her estate for matters which it was the husband's duty primarily to provide, such as family necessaries. That this could not be done without a contract on her part to that effect was held in Smith v. Allen, 1 Lans. 101, where the court say: "Goods purchased by the wife upon credit for family use are the goods of the husband, and the husband and not the wife is liable to pay for them, unless there is some special agreement between the parties by which they are sold to the wife for her exclusive use, and upon the credit of her separate property, and not upon the credit of the husband." See also Demott v. McMullen, 8 Abb. N. S. 335, and Robinson v. Rivers, 9 Abb. N. S. 144, and Valentine v. Loyds, 4 Abb. N. S. 371, and Ledlie v. Vrooman, 41 Barb. 109. In Demott v. McMullen there was no charge upon the separate estate; in Robinson v. Rivers, the woman had no estate and conducted no business; in Valentine v. Loyds, there was no charge, and indeed no contract, and the action was against husband and wife; and in Ledlie v. Vrooman, the undertaking was to pay an existing debt of the husband. Even before our married woman's acts, it was held by our courts that the wife might charge her separate estate for necessaries. In the case of Jacques v. Methodist Episcopal Church, 17 Johns. 581, in the Court of Errors, it was said by C. J. Spencer that "her agreement that the family expenses were to be borne out of her estate, especially when executed by her, was a valid act," and by Judge Platt, p. 594, that "when the moneys were in his, the husband's hands, she had an equal right to direct, by parol, the application of them to the support of the family." The case of Southwick v. Southwick, 9 Abb. N. S. 109, establishes that a married woman can purchase merchandise and concert tickets and employ a physician to attend herself, and by parol direct payment of the same by her husband out of her separate cstate, and this will be upheld as a valid charge. That action was brought by the wife against the husband for an accounting by him as trustee of her separate estate. In the Supreme Court it was argued on her behalf, that the expenditures for the articles above mentioned could not properly be charged by the husband to her account, because they were articles that he was primarily bound to provide her with. It appeared that the physician was not the husband's regular family physician but a favorite of her own, but perhaps that makes no difference. The charges were held proper, and the judgment was affirmed in the Court of Appeals (49 N. Y. 518), although this point does not seem to have been raised there. We can see no reason in principle why the wife may not charge herself with necessaries for herself, for her children, or for her husband. It certainly cannot be the policy of the law that a woman must starve herself or see her family starve, when she has the means of procuring credit for necessary supplies. If she buys necessaries on the credit of her separate estate, and an agreement that they shall be paid for out of that estate, the title to the goods rests in her and she may give them away or use them herself. In the second place, no formalities are requisite to evidence such a contract. If the consideration is for the direct benefit of the woman's estate, the law will imply the intention to charge her estate without any expression of the intent. Yale v. Dederer, 22 N. Y. 460. We think the same is also true where the consideration, although not for the direct benefit of the wife's estate, is yet for her own benefit and on the credit of her estate. This seems to have, been the law even before the enabling acts. Judge Cowen, in Gardiner v. Gardiner, 22 Wend. 528, says: "The better opinion is that separate debts contracted by her, expressly on her own account, shall in all cases be considered an appointment or appropriation for the benefit of the creditor, as to so much of the separate estate as is sufficient to pay the debt, if she be not disabled to charge it by the terms of the donation." And since those acts the same doctrine was expressed by Judge Sutherland, in Owen v. Cawley, 42 Barb. 105: "If a married woman, with a separate estate producing an annual income of $20,000 or $30,000, should buy on credit diamonds or laces to the amount of $5,000, it would be difficult to say that the diamonds or laces were bought or obtained for the benefit of her separate estate, whether real or personal, or both; but I think equity would decree it to be just that the debt should be paid out of her separate estate, even in the absence of any thing to show her intention to charge her separate estate with the payment of it, except the mere fact of purchasing the diamonds or laces on credit." See same case, 36 N. Y. 600; also, Ballin v. Dillaye, 37 id. 35. In all other cases, however, the intention to charge the separate estate must be declared in the contract itself, and so when the contract is in writing, the writing must express the intention. Yale v. Dederer. | be a charge on it, if fortified by a scrap of writing? No such distinction can be taken upon any conceivable principle." Our Court of Appeals, quoting his language, in Yale v. Dederer, say, "it is impossible to deny the force and conclusiveness of this reasoning. The distinction which it combats was clearly untenable." And the same is held in Southwick v. Southwick, where the charge was by parol. See, also, Owen v. Cawley, 36 N. Y. 600. This was so before the acts of 1847 and 1848. In Jacques v. Methodist Episcopal Church, the chief justice says, at p. 581: "She might give it away without any formal act, in the same manner as though she had been sole," and Judge Platt, at p. 594, says: "She had power to consent, by parol, that her husband should not only receive her income, but also collect her debts; and when the moneys were in his hands, she had an equal right to direct, by parol, the application of them to the support of the family; to the payment of debts due from her, or she might, in the same manner, give the money to him, or to whom she pleased; and after such application was actually made, those acts were irrevocably binding on her, and all claiming under her." It is thus certain that the wife may effectually charge her estate, by parol, in all cases where she is the primary debtor, or her estate is benefited. But where she contracts simply as surety, or her estate receives no benefit, the rule is otherwise. For example, in Ledlie v. Vrooman, 41 Barb. 109, it was held that a married woman, having a separate estate in lands, but not in the rents and profits thereof, and not conducting business on her own account, cannot charge such separate estate by a parol promise to pay the debt of her husband, where her separate estate has received no benefit on account of the contracting of the debt, and will not be benefited by the payment of the debt. And in Shorter v. Nelson, 4 Lans. 114, it was held that a married woman may not charge her separate estate with liability, from which it and she derives no benefit, without a written instrument expressing such an intention. Again, the contract need not describe, or even refer But the contract need not be in writing, except as to the particular property charged. It is sufficient if required by the statute of frauds. Lord Brougham the intent is declared in general terms. Com. Ex. asks, in Murray v. Barlee, 4 Sim. 82: “If, in respect Ins. Co. v. Babcock. Express words need not be emof her separate estate, the wife is in equity taken as ployed; in short, all that is requisite is that the intent a feme sole, and can charge it by instruments abso- shall appear from the words employed. Judge Selden lutely void at law, can there be any reason for hold- expresses the idea in Yale v. Dederer, p. 456, 460: ing that her liability, or more properly the power of "The intention which is here spoken of is not an inaffecting the separate estate, shall only be exercised tention which is proved by extraneous evidence, by a written instrument? Are we to invent a rule, dehors the contract, but an intention which is to be to add a new chapter to the statute of frauds, and to inferred from, and is, therefore, embraced in, or manirequire writing, when the act requires none? * * Is fested by, the contract itself. * The true there any equity reaching written dealings with the meaning of the contract, when justly interpreted, property which extends not, also, to dealings in other must be, that the debt which it created should be a ways, as by sale and delivery of goods? Shall neces- charge upon the estate. Starting from this point, it sary supplies for her maintenance not touch the estate, is plain that no debt can be a charge which is not and yet, money, furnished to squander away at play, I connected by agreement, either express or implied, with the estate. If contracted for the direct benefit of the estate itself, it would, of course, become a lien, upon a well-founded presumption that the parties so intended, and in analogy to the doctrine of equitable mortgages for purchase-money. But no other kind of debt can, as it seems to me, be thus charged without some affirmative act of the wife evincing that intention; and there is no reason why her acts in this respect should not be tested by the same principles and rules of evidence which are applied to similar questions in other cases." And the same idea is given by Com. Earl, in Com. Ex. Ins. Co. v. Babcock, p. 644: "All that was ever required in England, and so far as I have observed in this State, was that there should be an intention to charge the separate estate; such intention, in this State, to be contained in the contract." ment as to whom he was to look to for his pay. And that the wife, knowing the plaintiff was to work there, and seeing the kind of work he was doing, the law implied a promise on her part, to pay for the work, if it was in fact her work. Now, why should the defendant be held in this case, and not in the other? Why should she be held on an implied promise in the latter case, and not on an express promise in the former? Because she stood by and suffered the work, and because her estate was benefited? Then, in the other case, why not the same rule, when she expressly approved the furnishing of the goods, and said they were for the benefit of her estate? We think she was equally estopped in both cases, and on equitable principles should be compelled to respond. We expect to live to see the doctrine of Lord Brougham in Murray v. Barlee the law of this State that a married woman's contract shall charge and bind her separate estate precisely as if she were single, without any qualification whatever. We think the following propositions embody the substance of the decisions and represent the law on this subject as it at present exists: 1. The enabling acts have put the separate property of married women upon the same footing as the property of unmarried women, where they are the primary debtors, and married women in such cases may charge their separate property by any acts by which unmarried women may charge their property under like circumstances. 2. The separate estate of a married woman is responsible for all contracts, whether oral or written, made by herself as the primary debtor, whether for the benefit of her separate estate or for her own benefit on the credit of her separate estate, or for the benefit of others on the credit of her separate estate, without any declaration of an intention to charge her separate estate except such as is implied in her assumption of liability. Thus it will be seen, that after our courts became accustomed to the emancipated condition of women, they concluded to treat them accordingly. But it was a gradual change. Even after the child can walk alone, the mother or nurse is apt to stretch out the succoring hand for fear of falls. Among the rights of woman in our day, is the right to be treated, in respect to her contracts, like "any other man." But our courts have still an advance to make, and that is to put the woman, in respect to her property, on precisely the same footing as the man. It is inconsistent to treat her in part as emancipated, and in part as under restraint, as half child and half adult. For instance, in Shorter v. Nelson, the wife had a separate estate, of which her husband was the general agent; the latter procured goods of the plaintiff, really for himself, and not for his wife's benefit, upon the representation that they were for his wife, and the plaintiff charged them to the wife. After a short period and while the husband was receiving the goods, the plaintiff went to the wife, informed her of what had occurred, and asked her if she had authorized the purchase; she replied that she had, that the goods were for her, and that she would pay for them out of her separate estate. Under these circumstances the court held her engagement void, because it was not in writing. We think it was certainly valid, for all the goods furnished after that interview, for as to those it was an original undertaking. And it puzzles us to see how the court can reconcile this decision with 4. Whenever it is necessary to express the intenthat of the very same judges, four months later, in tion of charging her separate estate it may be effected Fairbanks v. Mothersell, 60 Barb. 406. In the latter by the use of such general terms as imply the intencase, the defendant, a married woman, engaged in tion, and the charge need not be contained in an erecting a house on her own land, let the job of dig-instrument of such a character as of itself constitutes ging the cellar, and laying the cellar wall to her husband. The husband employed the plaintiff to plow, scrape and level off the lot, and he performed the work, supposing the husband to be the owner. None of that work, however, was done on the husband's job. Held, that the case implied an employment of the plaintiff by the husband, to work for his wife upon her separate property, without any express agreeing their existence. 3. Under the authority of Yale v. Dederer, the separate estate of a married woman is responsible for her contracts as surety for the payment of debts already contracted by others, and not for her benefit or the benefit of her separate estate, only when her contract is in writing, and expresses the intention of charging her separate estate. a lien on the property. 5. Whenever a married woman, having previous knowledge or notice of an intended benefit to her separate estate, acquiesces in the same without objection, even without any contract, the law will conclusively imply a contract and a charge upon her separate estate, and will hold her estopped from deny 6. A married woman in respect to contracts made concerning her separate estate by others on her behalf, is bound by the ordinary rules regulating the relation of principal and agent. Since the above was in type we have learned of a very influential authority for the doctrine of our second proposition above laid down, in the case of Quassaic Nat. Bank of Newburgh v. Waddell, decided by the general term of the first department in May. In this case it was held that now, as before the enabling acts, where the consideration of a debt contracted by a married woman is one going to the direct benefit of her estate, or for the benefit of herself on the credit of her estate, the intention to charge the separate estate need not be stated in the contract or instrument evidencing the indebtedness. The court distinguished Yale v. Dederer on the evident ground that there the contract was merely one of suretyship. In this case the cause of action was the defendant's promissory note given for a balance due on her general bank account with the plaintiff. CURRENT TOPICS. In the case of the Town of Danville v. Pace, which we print in another column, is discussed an important question of constitutional law. The opinion is a learned and able argument, and will well repay perusal. The case will hereafter rank as a leading case on the question involved. Several correspondents have inquired whether the amendment to the Bankrupt Law requiring onefourth in number and one-third in amount of the creditors to join in the petition in case of involuntary bankruptcy, and making the provision retroactive, applies to cases in which an adjudication has been had. The opinion of Judge Longyear, which we print in another column, will answer this question. He holds, and no doubt correctly, that the amendment applies only to cases still pending. A "distinguished practitioner at the Supreme Court bar," has discovered a mare's nest in the bankruptcy amendment. It seems that the revision of the United States Statutes and the amendments to the bankruptcy law were passed on the same day. The act adopting the Revised Statutes provides that the revision shall take effect from December 1, 1873, and repeals all prior acts any portion of which is contained in the revision. In the revision, the Bankruptcy act of 1867 is considerably transposed. The amended bankruptcy act, however, amends the sections of the act of 1867- which act was repealed by the revision. It is therefore claimed that the bankruptcy amendment act amended a statute already repealed. A semi-official telegram from Washington announces that "it is all right," inasmuch "as the bill for the revision contains a clause providing that it shall be considered as the first bill passed after the meeting in December last, and all other laws passed at the session to be regarded as amendments to the revision." But we are not quite sure that this obviates the difficulty. We complete in this issue the publication of the General Statutes of the State so far as they have been signed by the governor. The last act thus far signed makes chapter 653. There are several acts still in the hands of the governor, but whether or not they will receive his signature cannot of course be now answered. We have not published in the LAW JOURNAL the act relating to the care and custody of the insane because of its extreme length, and also because it has been very widely circulated by the secretary of State. NOTES OF CASES. In Pulver v. Richardson, 3 N. Y. Sup. Ct. R. 439, the General Term in the fourth departinent, speaking "A purchase by a mortgagee by Mullin, P. J., say: at a sale in foreclosure of a mortgage of chattels is not such a sale and purchase as bars the mortgagor's equity of redemption, or limits the amount at which the property shall apply on the mortgage," citing as authority Buffalo Steam Engine Co. v. Sun Mut. Ins. Co., 17 N. Y. 403. The object of this note is to say, that the doctrine of 17 N. Y. in this regard is examined and pretty strongly challenged by Selden, J., in giving an opinion concurred in by all the judges, in Olcott v. Tioga R. R. Co., 27 N. Y. 566, 567. On the A question of interest to common carriers was decided by the court of Exchequer, in the Great Northern Railway Co. v. Swaffield, 30 L. T. R. 562. The facts were these: On the 5th July, 1872, the defendant sent a horse, carriage paid, by the plaintiffs' railway, from King's Cross to the Sandy Station, on their line, consigned to himself at that station. horse's arrival at Sandy, at 10:8 P. M., the same evening, there was no one there to receive it on the defendant's behalf, and, the defendant and his residence being unknown to the plaintiffs' servants at the station, the horse was, by the station master's direction, taken to an adjacent livery stable for safe custody. Shortly afterward, about 10:40 P. M., the defendant's servant arrived at the station and asked for delivery of the horse, when he was told by the station master, who had gone to bed, but was called up, that it was at the livery stable, and could be had on payment of the livery charge, which a man belonging to the stable, who came up at the moment, said would be This the defendant's servant refused to pay. The next day the station master offered to allow the defendant to take the horse away without paying the livery charges, but the defendant refused, requiring the horse to be delivered at his house, and compensation to be made to him for lost time. The horse remained at livery until the 18th November, when the station master sent it to the defendant's residence, 6d. no demand being then made on the defendant for the livery charges. The livery stable keeper subsequently sent in his bill, amounting to £17, to the plaintiffs for the keep of the horse from 5th July to 18th November, at 17s. 6d. a week, which was admitted to be a fair and reasonable charge. This the plaintiffs paid, and subsequently sued the defendant in the County Court to recover the amount. The learned judge gave judgment for the defendant, on the ground that, the payment of the livery charges and the delivery of the horse to the defendant being voluntary acts on the part of the plaintiffs, they were precluded by their own acts from recovering against the defendant, and that there was no contract, express or implied, upon which they could found their claim. On appeal from that decision the court held (reversing the decision of the County Court judge), that as the plaintiffs were bound to take reasonable care of the horse on its arrival, when no one was there to receive it on the defendant's behalf, they were justified in sending it to the livery stable, and that, whatever question there may be as to the right to refuse delivery of the horse to the defendant's servant, except on payment of the livery charge, on the evening of its arrival, yet on the next day the defendant was clearly in the wrong in refusing to accept the station master's offer, and take his horse away; and that the plaintiffs were entitled to recover from the defendant the expenses rightly incurred by them for his benefit in the keep of the horse at the livery stable. This decision is in conformity to the decisions in Notára v. Henderson, L. R., 7 Q. B. 225; 41 L. J. 158, Q. B., and The Cargo, ex Argos, Gaudet v. Brown, in the Privy Council, 28 L. T. Rep. N. S. 745; L. R., 5 P. C. Cas. 134; 42 L. J. 49, Adm. In Baldwin v. Greenwood Turnpike Company, 13 Am. L. Reg. 423, the Supreme Court of Errors of Connecticut decided a point of some interest to travelers on highways. The plaintiff's horse, driven by his servant in his carriage along a public highway, in the exercise of ordinary care, became frightened by the breaking of the carriage in consequence of a defect for which no negligence was attributable to the plaintiff, and ran furiously, throwing out the driver, soon after which he left the highway and passed over private property to and upon a turnpike road, where, still running furiously, he fell over the side of a bridge by reason of a defect in the railing and was injured, such defect being attributable to the negligence of the turnpike company. Held, that the turnpike company was liable for the injury, and that a traveler is not responsible for a secret defect in his carriage or harness, where there has been no want of ordinary care on his part in relation to it. In harmony with this decision is Hunt v. Pownal, 9 Vt. 411; but Davis v. Dudley, 4 Allen, 557; Moore v. Abbott, 32 Me. 46, and Moulton v. Sandford, 51 id. 127, are authorities to the contrary. THE AMENDED BANKRUPT LAW. for the Eastern District of Michigan, has delivered the following judgment, holding that section thirty-nine, as amended June 22, 1874, does not apply to cases in which adjudications had been had before the passage of the act. LONGYEAR, J.-That the provisions of the recent act requiring one-fourth in number and one-third in amount of the creditors to join in an involuntary petition for adjudication of bankruptcy, were intended to apply, and can and must be applied to all cases commenced between December 1, 1873, and the passage of that act, in which there has been no adjudication, I entertain no doubt; and it has been so held by the District Court for the Northern District of Illinois. (In re Scammon, 6 Chi. Leg. N. 328.) But the question here goes beyond that. It is whether those provisions were intended to apply, and can be applied, to cases so commenced which had passed into judgment before the passage of the act. The act cannot be given the application and effect contended for, because it involves the vacating and annulling the judgment of the court and granting a new trial. No rule of constitutional law is better settled than that, in a constitutional government, with a division of powers, like that of the United States, no legislative enactment can have the effect and operation to annul the judgment of a court already rendered, or grant a new trial, especially as it respects adjudications upon the private rights of parties. "When they have passed into judgment," says Justice Nelson, in State v. Wheeling Bridge Co., cited below, "the right becomes absolute, and it is the duty of the court to enforce it." (Cooley's Const. Lim. 93 to 95, and cases cited; The State v. The Wheeling, etc., Bridge Co., 18 How. 421, 431; and see also the dissenting opinions of Justices McLean, Greer and Wayne, at pages 437, 449; Mason v. White, decided by the Supreme Court of Michigan at the January Term of 1874, not yet reported.) Courts will not presume that congress intended to exceed the powers, or in any manner to invade the domain of the judiciary, unless such intent is clearly expressed by the words used, or by necessary implication. The words used in a statute may be broad enough, and they probably are in the statute under consideration, to admit of such a construction; but the court will in no case give them a construction that involves the exercise of an excess of power, where, by a more limited application of them, such exercise of power is not involved. given full effect, and in my opinion all the effect conIn the present instance the enactment in question is gress intended it should have, by applying and limiting it to cases still pending and undisposed of by adjudication. It is abundantly evident that congress did not intend these provisions to apply to cases already adjudicated, for the following reasons: 1. It was not in their power to do so, as already shown. 2. They did not so expressly enact. 3. The provisions can have full and consistent effect without giving them such application. 4. They made no provision for the saving of rights accrued or acts done under adjudications in cases question, eventually fail and be dismissed. And this where the proceedings might, under the provisions in has still greater force for the further fact that they did |