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Hancock was unable to acquire a permanent itors required that their claims be paid out home, and, by reason of his profession, was of such gift to the wife. obliged to live temporarily and for uncertain In most of the States, the old common law periods of time at different places and with rule has been either done away with entirely, innkeepers and others who make provision for or greatly modified. The reasons for the the entertainment of guests and travelers. He common law rule were three-fold, to-wit: was necessarily a transient person, liable to First, because the husband was required to respond to the call of his superiors at any support and protect his wife,& an obligation moment and to change the locality of himself he still owes her; second, because her marand family. The defendants kept a hotel or riage merged her legal existence in that of her inn, takir.g care of transient guests, some husband ;9 and third, because he being liable staying for a longer, some for a shorter period. for the wife's support and ante-nuptial debts General Hancock, for himself and family, and contracts, he should receive her earnings paid for their meals the same as other tran. and estate to enable him to meet these oblisient guests, and by express agreement they gations. Even after the passage of the enwere at liberty to leave at any time they saw abling statute of 1861, the courts of Illinois fit. Under these circumstances no reason ex- held that the husband was entitled to all ists why they should not be protected as well money earned by his wife, 11 all property puras the other travelers or guests at the hotel.” chased with her earnings and money, 12 and

that he was still entitled by curtesy, to a ten. ancy in all lands owned by her before mar

riage.13 But the law of 1869 changed all MARRIED WOMEN.

this in that State. Her earnings and property are now taken entirely from his control, and

he is no longer responsible for the debts and At common law, the wife's person and

contracts made by her before marriage.14 In property, as well as her skill and time, be

that State, the husband is still entitled to the longed to her husband ;1 and his creditors

services of his wife, because on him still falls could subject her property, her earnings and the burden of supporting her and the family, the bequests of her friends, to the payment of and if not entitled to her services, while the husband's debts. He could create a sep- bound for the support of her and her chilarate estate for her, and her benefit, only by dren, he could not require her to aid him, or calling in a third person to manage the trust

recover the value of her services when she for her; or by some act on his part which

works for others. 15 would show his intention to make her a gift.2 When the reason for a rule ceases, it ceases Mere declaration was not suflicient.3 Some

also; consequently, when a husband abanovert act or passive acquiescence being nec

dons his wife and children, he is entitled essary, as well as sufficient. She could not

neither to their services nor to their wages, receive gifts and devises from friends, as her

nor are their earnings liable for his debts. separate and individual property, without his

The mother, under such circumstances, beperinission Property thus acquired, where

comes the head of the household, charged the statute did not interfere, she could dis

with the support of the family, and is entitled pose

of by will, 6 and the husband could not defeat the desire by an attempt to repudiate 7 Haden v. Ivey, 51 Ala. 385. the gift. But where the husband had credit

8 Duncan v. Roselle, 15 Ia. 503.

9 Rodemeyer v. Rodman, 5 la. 426; Musgrove v. ors at the time of the gift, who were unpaid Musgrove. 54 III. 186. at her death, or at any other time, such cred- 10 Conner v. Berry, 46 11), 370; McMurtry v. Web.

ster, 48 III. 124.

il Bear v. Hays, 36 111. 280; Farrell v. Patterson, 43 1 Duncan v. Roselle, 15 Iowa, 501.

Id. 52; Conner v. Berry, Ib. 370; Schwartz v. Saun2 McLemore v. Pinkston, 31 Ala. 267.

ders, 46 Id. 24. 3 McLean v. Longhands, 5 Ves. 79; 2 Bright's 12 Farrell v. Patterson, 43 III. 52. Hlusband and Wife, 202, et seq.

13 Cole v. Van Riper, 44 III. 58. 4 Wells' Separate Property of Married Women, 174. 14 Hawarth v. Warmser, 58 III. 48; Martin v. Rob

5 Rivers v. Carleton, 50 Ala. 40; Sbanning v. Style, son, 05 II. 129. 3 P. Wms. 334; 2 Kent, 163.

16 Bean v. kiah, 4 Hun, 171; Birkback v. Ackry. 6 Cavenaugh v. Ainchbacker, 36 Ga, 500.


oyd, 11 id. 365.

duty, and that she could not recover for her services from his estate. 26


A statute giving to a wife her separate earnings, does not enable her to charge her husband with her services. All that is done is to enable her to recover from third persons for labor performed with the husband's consent, or for work done or for goods furnished in a bona fide business carried on by the wife for her own benefic. The husband may consent to his wife's engaging in any kind of business, so long as it is done in good faith and not with a design to circumvent the law and defeat the claims of his own creditors; and the profits accruing from such trade or business will be her own separate property and beyond the reach of his creditors, so long as she keeps it separate from her husband's money or property. But it is otherwise, if she permit her separate earnings to become mixed with the earnings or money of the husband, 28 for in such an event, they will be regarded in law as turned over to the husband, 29 and, at most, she can be considered but a preferred creditor.30 But if her earnings, the exact amount of which can be ascertained, be invested in land together with her husband's, and the title to the same is taken in the names of the husband and wife jointly, her interest will be protected; in case she survives him, the property would all pass to her, because they are not tenants in common, and do not take by moieties, but are seized of the entirety.31 And it has been also held that where a husband purchases property in his wife's name, and pays for it out of his earnings, which earnings were exempt from execution at the time of such purchase and of subsequent payments, that the property becomes the separate estate of the wife, and not subject to the payment of the husband's pre-existing debts.32

to her own time, as well as to the services and earnings of the minor children. 16

A woman who does nothing more than take charge of her husband's household, and perform the ordinary duties of a good housewife, can not recover damages for bodily injury Bustained through the negligence or carelessness of another; but where she also does work for others, receiving compensation for her sole benefit, she may recover for the injury, and, as an element of damages, show what amount of money she was earning, or could have earned;17 and the money recovered in such an action would become her separate property.18 If a man takes boarders into his house, or converts it into a hospital, his wife is not entitled to compensation for doing work for the boarders or superintending the hospital, 19 unless there has been a special contract to that effect; because the husband, as a general rule, is not chargeable with services rendered him by his wife 20 or minor children. Neither is there any implied contract between members of the same family to pay for services rendered or living furnished;21 not even where a child remains with the parent after attaining majority, 22 and the parent hires out the services of such child to various parties.2 23 And when an infirm and helpless parent goes to live with a child, there is no obligation to pay for board furnished and services rendered,24 unless there has been a special agreement. 25 And in Iowa, where a husband was insane, and his guardian had employed the wife to take care of him at a stipulated price per week, the court held that her services belonged to the husband, that she was but performing her

16 Hazelbaker v. Goodfellow, 64 Ill. 238.

17 Brooks v. Schwerin, 54 N. Y. 343.
18 Stevenson v. Morris, 37 Ohio St. 10.
19 Reynolds v. Robinson, 64 N. Y. 589.
20 Wells' Separate Property, sec. 125.

21 Williams v. Hutchins, 3 N. Y. 812; Robinson v. Cushman, 2 Denio, 149; Andrus v. Foster, 17 Vt. 556; Fitch v. Peckham. 16 Id. 150; Owen v. Parsons, 5 W. & S. 357; Weir v. Weir, 3 B. Mon. 645; Mountain v. Fisher, 22 Wis. 93; Hall v. Finch, 29 Id. 278; s. c., 9 Am. Rep. 559; Buckman's Appeal, 61 Pa. St. 251; Duffey v. Duffey, 44 Id. 399; Reynolds v. Robinson, 64 N. Y. 589.

22 Andrus v. Foster, 17 Vt. 556; Fisher v. Fisher, 5 Wis. 472.

23 Fisher v. Fisher, supra.

24 Liddell v. Hastings, 11 Rep. 305; Wilcox v. Wilcox, 48 Barb. 327; Van Kurn v. Saxton, 3 Hun, 547; Kelly's Estate, 1 Tucker, 28.

25 Candor's Appeal, 5 W. & S. 513.

26 Grant v. Green, 41 Ia. 88.

27 Hazelbaker v. Goodfellow, 64 Ill. 241.

28 Fisk v. Cushman, 6 Cush. 20; Glover v. Alcott, 11 Mich. 47.

29 McClusky v. Provident S. Inst. 103 Mass. 300; Fisk v. Cushman, supra; contra: Hinkley v. Philips, 3 Allen, 77.

30 Taylor v. Glidden, 16 Ohio St. 509.

31 Jacobs v. Miller (Mich. Feb. 83), 16 Cent. L. J. 259.

32 Dreutzer v. Bill, 11 Wis. 114; Pike v. Miles, 23 Id. 164; Delashment v. Traer, 44 Ia. 613; Robb v. Brew. er(Ia. Feb. 3, 1883), 16 Cent. L. J. 356.

In most of the States, with the assent of the husband, the wife may now carry on business as a feme sole, with her separate funds, money furnished her by her friends, a stranger, or even by her husband.33 This right carries with it, of course, the power to contract in reference to such separate business, or with respect to her services where her earnings are her separate property,34 and to bind her separate estate where it is necessary to do so in furtherance of her separate business, 35 wbether such property be hers beyond all reasonable question or not.36 She may bind her separate property either to pay for goods purchased, 37 or for the payment of the rent of the property where she carries on business.38 But the business must be distinctly her own, and for her separate benefit, and entirely separate and distinct from that of her husband. 39

The husband may assist or co-operate in a business purely his wife's, without in any way impairing her rights. 40 But if the business be in reality his, or his relations to it such that her services but increase his profits, then she will have no separate property therein, and can acquire no separate rights. 41 And if the proceeds of such business be invested in property in the wife's name, the property will be liable for the husband's pre-existing debts.42 Where the husband simply furnishes the wife with the means wherewith she earries on a separate business for her own benefit, he does not thereby acquire an interest in the profits, and property purchased therewith will not be liable for his debts preexisting or subsequent.48

A married woman, where permitted to carry on business for herself, can engage in any legitimate business, either personally or through agents, 45 with full power to act in all

33 Lockwood v. Callin, 4 Robt. 129.

Adams v. Honness, 62 Barb. 326.

33 Todd v. Lee, 15 Wis. 65; S. C. 16 Id. 480; Barton Beer, 35 Barb. 78.

38 Stevens v. Reed, 112 Mass. 515.

Park v. Simonds, 1 Allen, 258.

30 Draper v. Stouvenee, 35 N. Y. 507. Well's Separate Property, sec. 147. 40 Ib.

Bedford v. Crane, 16 N. J. Eq. 265; Cramer v. Reford, 17 Id. 367; Quidots, Admr. v. Pergeaux, 18 d. 472; Skillman v. Skillman, 2 Beas. 403.

42 Manfg. Co. v. Hunnell, 25 N. J. Eq. 45.

43 Sammis v. McLaughlin, 35 N. Y. 467.

4 Wells' Separate Property, 205.

45 Abbey v. Deyo, 44 Barb. 374; Allen v. Johnson, 48 Miss. 413.

matters pertaining thereto to the same extent as a feme sole could.46 If she carries on business by means of agents, she will be answerable for their contracts and frauds while they are acting within the scope of their authority, as any other principal, although such contract or fraud be made or committed without her knowledge or assent.47 It has been held that where a woman invests her separate funds in live stock, and s uch live stock trespass upon another, that she, and not her husband, will be liable therefor. 48

The husband is not, by virtue of his marital relations, the agent of his wife;49 yet she may employ him as such for her, and in her stead to manage and control her separate property, or to even conduct her separate business to the same extent as she may employ a third person, because it is immaterial who the agent is, provided only he be a person of sufficient intelligence, and competent to make valid contracts.5 50 If the husband be insolvent, this will not affect the employment or the rights of the parties. 51 And the fact of his being her husband will not deprive her of any of her rights under the statute. 52 She may employ him as a clerk,53 or as a servant.54

Should the husband volunteer to conduct his wife's business for her, and she accepts his services, he does not thereby acquire an interest in the business, or the proceeds thereof, and his creditors will not thereby acquire any equities.55 The fact that he works without any stipulation as to compensation or wages, makes contracts for work and pays off hands, is not evidence that he is carrying on business

46 Sherman v. Elder, 24 N. Y. 381. 47 Baum v. Mullen, 47 N. Y. 577. 48 Rowe v. Smith, 45 N. Y. 230.

49 Antwood v. Meredith, 37 Miss. 635.

50 Abbey v. Deyo, 44 Barb. 374; Knapp v. Smith, 27 N. Y. 277; Buckley v. Wells, 33 Id. 518. 51 Bellows v. Rosenthall, 31 Ind.116.

52 Lockwood v. Collin, 4 Robt. 129; Wells v. Smith, 54 Ga. 262; Walker v. Carrington, 74 Ill. 446; Dean v. Bailey, 50 Id. 481; Pierce v. Hasbrouck, 49 Id. 23: Wortman v. Pierce, 47 Id. 27; Brownell v. Dixon, 37 Id. 197.

53 Bellows v. Rosenthall, 31 Ind. 116.

54 Knapp v. Smith, 27 N. Y. 277; Manderbach v. Mock, 29 Pa. St. 43; Glover v. Alcott, 11 Mich. 470; Cooper v. Ham, 43 Ind. 392.

55 Abbey v. Deyo, 44 N. Y. 343; Buckley v. Well, 33 Id. 518; Wortman v. Price, 47 Ill. 22; Glidden v. Taylor, 16 Ohio St. 509; Nat. Bank v. Sprague, 20 N. J. Eq. 13.

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There is some conflict in the decisions respecting the power of married women to form partnerships for the purpose of carrying on a separate business. The Supreme Court of Massachusetts declares that she can do so, provided her partner be not her husband. 59 The Mississippi court thinks that the husband cannot make his wife his partner without her consent,60 which is eminently just and proper. It is held in some States that married woman cannot form partnership, barring marriage, of course,61 and in others that she can ;62 others still, when her husband signifies his assent thereto. It was held In re Kinkead63 that a wife may enter into partnership even with her husband. The courts draw a nice distinction between the powers and rights of husband and wife as co-partners and as joint owners.6 It may be said to be well settled that husband and wife may contract with each other after they have started out on a contract. 65 But they cannot legally contract to annul the first or marriage contract, 66 and when they, because of some disagreement or misunderstanding, are living apart, a note executed by the husband to the wife to induce her to return to his bed and board is void.67 Contrary doctrine is held in Illinois.68 But the former we consider the better doctrine, because, it seems to us, the duty of the wife to


There was no con

live with her husband. sideration for the note. Where there is no statutory provision preventing it, as there is in Indiana,69 a wife may mortgage her separate property to secure her husband's debts to third persons, and it will be valid, although she has no interest in such debts, and, as to her, the mortgage is without consideration.70 She thus becomes surety for her husband,71 and entire good faith must be exercised towards her by all the parties. Fraud or coercion works a forfeiture of the security.72

It has been held that when an alien woman marries an American citizen, by reason of the marital relation, she also becomes an American citizen;73 but the rule will not work the other way.

A husband may make his wife his agent,74 but not by merely ratifying her act.75 The wife may become the husband's creditor, 76 as well as his debtor.77 Where the husband is indebted to his wife, she will be entitled to prove her claims against his estate,78 even though such estate be insolvent.79 A husband may prefer his wife in a deed of trust for the benefit of his creditors, or he may convey property to her absolutely, in consideration and discharge of a debt due to her, in the same manner as if she were a third party.s


56 Hanfelt v. Dill, 10 N. W. Rep. 781; Dayton v. Walsh, 47 Wis. 113; Gage v. Duchy, 34 N. Y. 293; Crow v. Rogers, (Ia.) 8 N. W. Rep. 629; McIntyre v. Knowlton, 6 Allen, 565.

57 Penn v. Whiteheads, 12 Gratt. 74; Wilson v. Loomis, 55 Ill. 352.

58 Bucher v. Ream, 68 Pa. St. 421; Vide, Kelley's Contracts of Married Women," 149.

50 Plumer v. Lord, 5 Allen, 462.

60 Atwood v. Meredith, 37 Miss. 635.
61 Bradstred v. Baer, 41 Md. 23.
62 Penn v. Whitehead, 17 Gratt. 512.
63 3 Biss. 405.

64 Reiman v. Hamilton, 111 Mass. 246.

65 Schouler's Domestic Relations.

66 17 Am. L. Rev. (N. S.) 74 et seq.

67 Copeland v. Boaz, 9 Bax. 223.

68 Phillips v. Meyers, 83 Ill. 67; S. C. 25 Am. Rep. 295.

In Ohio, since the passage of the enabling statute of 186181 all money or property coming to the wife by gift, devise, descent, or

69 Revised Statutes of 1881, § 5119.

70 Bartlett v. Bartlett, 4 Allen, 442; Heburn v. Warner, 112 Mass. 276; Thacker v. Churchill, 118 Id. 108; Miller v. Lockwood, 32 N. Y. 293; Hall v. Tay, 24 Alb L. J. 517.

71 Loomer v. Wheelright, 3 Sandf. 135; Johns v Reardon, 11 Md. 465; Hammit v. Bull, 8 Phila. 29.

72 Hammit v. Bull. supra; Wolff v. VanMeter, 19 Ia. 134; Green v. Scronage, Ib. 464; Eadie v. Simmon, 26 N. Y. 9; Williams v. Bagley, L. R. 1 H. L. 200 73 Leonard v. Grant, 11 Rep. 327; Burton v. Burton,

1 Keyes 359; Kelly v. Owen, 7 Wall. 498; Kane v. McCarthy, 63 N. C. 299; Regina v. Manning, 2 Car. & K. 866; 2 Bishop's M. & D. § 505.

74 Wells' Separate Property, § 172.

75 Miners v. Munson, 53 Ind. 138.

76 In re Wood, 5 Fed. R. 443; Glidden v. Taylor, 16

O. St. 509; Oliver v. Moore, 26 Id. 298; Kaufman v
Whitney, 50 Miss. 103; 2 Story's Eq. Jur. § 1373.

77 Oliver v. Moore, 23 O. St. 473.

78 In re Wood, supra.

79 In re Corse, 2 Fed. Rep. 307.

80 Crane v. Barkdall. 10 Md. L. Rec. No. 6.

81 58 Ohio L. 54.


otherwise, becomes her separate estate. It is at times a little difficult to decide just what is separate property and what is not, just as it, at times, puzzles the courts to tell what is " wearing apparel" and what is not. In the case of In re Steele83 the court said: "It would not be doing any great violence to the meaning of the term wearing apparel' as used in the bankrupt act, to include in it a gold watch of moderate value. The definition of the word apparel,' as given by lexicographers, is not confined to clothing; the idea of ornamentation seems to be a rather prominent element in the world, and it is not improper to say that a man wears' a watch or' wears' a cane. The exemption law of Arkansas says that wearing apparel shall be exempt except watches.


are her separate property.93 An expectancy in land has been held not her separate estate, but the possession of lands of an absconding husband together with an inchoate right of dower, may be.95 The execution of a mortgage by

a wife is presumptive evidence that the property is a part of her separate estate.96 If the husband takes in the name of himself and his wife security for a debt due from a third person, he is understood to assent and intend that she shall have some peculiar benefit from it;97 and where he makes an investment of her funds, at the time declaring that the funds are hers and that he makes the investment for her, her claims thereto will be upheld against his administrator.9


There are other cases holding the same doctrine in effect,81 and some which hold otherwise. 85 It has been held in Ohio that the wearing apparel supplied to a wife by her husband is not her separate property;8 .86 and when the husband steals the jewelry and clothes of his wife, even though they are living apart, it is not larceny.87 Damages recovered by the wife for an assault becomes her separate property. 88 If the husband makes a deposit in bank in his wife's name, declaring at the time that it is her's and his desire that it be placed to her credit, it becomes her separate property;89 but if a wife make a deposit in bank in the name of herself and her husband, it belongs to the latter.90 Deposits made in a savings bank by the wife in her name, from the joint earnings of herself and husband, have been held to be hers as against his heirs, but his, as against his creditors.91 A note made by a husband to his wife, in her hands, has been held to be her separate property. 92 Lands rented to the wife, whether upon her own credit or payment from her separate estate,

8! In re Wood, 5 Fed. R. 443.

83 Flip. 324.

84 Bumpus v. Maynard, 38 Barb. 626; Mack v. Parks, 8 Gray, 517.

85 Smith v. Rogers, 16 Ga. 479.

86 Pratt v. State, 35 O. St. 514.

87 State v. Parker. 3 Ohio Law Journal, 208.

88 Stevenson v. Morris, 37 O. St. 10.

8 Fisk v. Cushman, 6 Cush. 20.

90 Green v. Green, 11 Week. Dig. 374.

91 Ames v. Chew, 5 Met. 320.

92 Tredwell v. Hoffman, 5 Daily, 207.

If the husband wrongfully use the wife's money to pay a debt of his, which was secured, she will be subrogated to the interest of the creditor in such security.99

A wife may lease her property to her husband the same as to a third party; and where he lives with her upon her separate property and occupies it, he will be looked upon in law as her tenant, and presumed to hold it as tenant under contract, verbal or written.100 JAMES M. Kerr.

Columbus, O.

93 Preott v. Lawrence, 51 N. Y. 219; Westwelt v. Ackley, 2 Hun. 258.

91 Kinne v. Kinne, 45 How. Pr. 61.
95 Hart v. Young, 1 Lans. 417.

96 Kidd v. Conway, 65 Barb. 158.

97 Draper v. Jackson, 16 Mass. 480; Fisk v. Cushman, 6 Cush. 20.

98 Stanwood v. Stanwood, 17 Mass. 57; Phelps v. Phelps, 20 Pick. 556.

99 Greiner v. Greiner (Cal.) 12 Rep. 647.
100 Albin v. Lord, 39 N. H. 196; 2 Story's Eq. J. §


While the actual adjudications by the courts, materially assisted by discussions in legal periodicals and text-books, have gone a long way in removing the doubts and uncertainties in which the law of telegraph companies was originally involved, there yet remains to be settled a number of important questions in this branch of jurisprudence. Among such questions may be instanced that of the responsibility of the company to the sendee of

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