Hancock was unable to acquire a permanent home, and, by reason of his profession, was obliged to live temporarily and for uncertain periods of time at different places and with innkeepers and others who make provision for the entertainment of guests and travelers. He was necessarily a transient person, liable to respond to the call of his superiors at any moment and to change the locality of himself and family. The defendants kept a hotel or inn, taking care of transient guests, some staying for a longer, some for a shorter period. General Hancock, for himself and family, paid for their meals the same as other transient guests, and by express agreement they were at liberty to leave at any time they saw fit. Under these circumstances no reason exists why they should not be protected as well as the other travelers or guests at the hotel." MARRIED WOMEN. At common law, the wife's person and property, as well as her skill and time, belonged to her husband; and his creditors could subject her property, her earnings and the bequests of her friends, to the payment of the husband's debts. He could create a separate estate for her, and her benefit, only by calling in a third person to manage the trust for her; or by some act on his part which would show his intention to make her a gift." Mere declaration was not sufficient.3 Some overt act or passive acquiescence being necessary, as well as sufficient.4 She could not receive gifts and devises from friends, as her separate and individual property, without his permission.5 Property thus acquired, where the statute did not interfere, she could dispose of by will, and the husband could not defeat the desire by an attempt to repudiate the gift. But where the husband had creditors at the time of the gift, who were unpaid at her death, or at any other time, such cred 1 Duncan v. Roselle, 15 Iowa, 501. 2 McLemore v. Pinkston, 31 Ala. 267. 3 McLean v. Longhands, 5 Ves. 79; 2 Bright's Husband and Wife, 202, et seq. 4 Wells' Separate Property of Married Women, 174. 5 Rivers v. Carleton, 50 Ala. 40; Shanning v. Style, 3 P. Wms. 334; 2 Kent, 163. 6 Cavenaugh v. Ainchbacker, 36 Ga. 500. itors required that their claims be paid out of such gift to the wife. 7 10 In most of the States, the old common law rule has been either done away with entirely, or greatly modified. The reasons for the common law rule were three-fold, to-wit: First, because the husband was required to support and protect his wife, an obligation he still owes her; second, because her marriage merged her legal existence in that of her husband; and third, because he being liable for the wife's support and ante-nuptial debts and contracts, he should receive her earnings and estate to enable him to meet these obligations. Even after the passage of the enabling statute of 1861, the courts of Illinois held that the husband was entitled to all money earned by his wife,11 all property purchased with her earnings and money, 12 and that he was still entitled by curtesy, to a tenancy in all lands owned by her before marriage.13 But the law of 1869 changed all 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 contracts made by her before marriage.14 In that State, the husband is still entitled to the services of his wife, because on him still falls the burden of supporting her and the family, and if not entitled to her services, while bound for the support of her and her children, he could not require her to aid him, or recover the value of her services when she works for others. 15 When the reason for a rule ceases, it ceases also; consequently, when a husband abandons his wife and children, he is entitled neither to their services nor to their wages, nor are their earnings liable for his debts. The mother, under such circumstances, becomes the head of the household, charged with the support of the family, and is entitled 7 Haden v. Ivey, 51 Ala. 385. 8 Duncan v. Roselle, 15 Ia. 503. 9 Rodemeyer v. Rodman, 5 Ia. 426; Musgrove v. Musgrove. 54 Ill. 186. 10 Conner v. Berry, 46 Ill. 370; McMurtry v. Webster, 48 Ill. 124. 11 Bear v. Hays, 36 I11. 280; Farrell v. Patterson, 43 Id. 52; Conner v. Berry, Ib. 370; Schwartz v. Saunders, 46 Id. 24. 12 Farrell v. Patterson, 43 Ill. 52. 13 Cole v. Van Riper, 44 Ill. 58. 14 Hawarth v. Warmser, 58 Ill. 48; Martin v. Robson, 65 Ill. 129. 15 Bean v. Kiah, 4 Hun, 171; Birkback v. Ackryoyd, 11 d. 365. 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.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,2 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. 19 Reynolds v. Robinson, 64 N. Y. 589. 21 Williams v. Hutchins, 3 N. Y. 312; 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. 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 benefit. 27 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 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 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 fur nishes 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. 43 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. 4 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. 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. 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 47 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.5 She may employ him as a clerk,53 or as a servant.54 52 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. under his wife's name.56 It is held by some courts, however, that an "insolvent" husband has no right to devote his entire time to his wife's separate business gratuitously,57 and that where he does so, all acquisitions on account of his labor and skill must be appropriated to the payment of his debts.58 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 a 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.64 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 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. 62 Penn v. Whitehead, 17 Gratt. 512. 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. 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, 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.80 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. 484; 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. 82 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. '"' เ 6 There are other cases holding the same doctrine in effect,84 and some which hold otherwise.8 85 It has been held in Ohio that the wearing apparel supplied to a wife by her husband is not her separate property; 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; 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. 89 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. 89 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. 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.98 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.9 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. § 1396. LIABILITY OF TELEGRAPH COMPANIES TO SENDEES OF MESSAGES. 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 o |