new trial. Under the provisions of our statute, we might, perhaps, make such disposition of the case. But a new trial to her alone would involve all the issues already determined, unless we should limit them, which we do not feel authorized to do. And as a verdict against her for the same or a different amount would greatly complicate matters, we think it safer to follow the old rule in such cases; and will therefore so order, that a new trial will be given to all the defendants, unless the plaintiff dismiss the action as against Margaret Moran.

TORTS OF MARRIED WOMEN. This subject has been lengthily discussed in a previous volume of this series. In the note to Commonwealth v. Neal, 6 Am. Dec. 106, all the rules of law applicable to this subject have been laid down with accuracy, and with an extensive citation of authority. Consequently, we will here content ourselves with the citation of the recent cases, and such of the earlier ones as appear to have been omitted in our former dissertation.

As therein stated, it is well settled that for the torts of a wife, committed in the company of her husband, he is alone responsible. The law presumes, from the presence of her husband, that she was coerced by him, or that she acted under his control, and by his direction: Ball v. Bennett, 21 Ind. 427; Carleton v. Haywood, 49 N. H. 314; Seiler v. People, 77 N. Y. 411; Hildreth v. Camp, 41 N. J. L. 306; Kosminsky v. Goldberg, 44 Ark. 401. But this is a rebutable presumption. The presence and command of the husband must concur to justify the exemption of the wife from responsibility.

An offense by his direction, but not in his presence, or in his presence but not by his direction, is not within the rule which gives immunity to her; and proof that these were the circumstances which surrounded the commission of the act by her, makes her jointly liable with her husband: Kosminsky v. Goldberg, 44 Ark. 401; Hildreth v. Camp, 41 N. J. L. 306; Miller v. Sweitzer, 22 Mich. 391; Warner v. Moran, 60 Me. 227; State v. Cleaves, 59 Id. 298; Carle ton v. Haywood, 49 N. H. 314; Handy v. Foley, 121 Mass. 259; Seiler v. Peo ple, 77 N. Y. 411.

For torts committed by a wife, not in the presence of her husband, and not by his coercion, they are jointly liable. In such a case, if there is a recovery, the judgment is against both, and the wife's separate estate may be taken in execution: Smith v. Taylor, 11 Ga. 20; Ball v. Bennett, 21 Ind. 427.

In the recent case of Kosminsky v. Goldberg, 44 Ark. 401, the court reduced to four very succinct rules the circumstances under which a married woman may commit a tort, and the different liabilities attached to each. The court say that the torts of a married woman may be committed under any of the following circumstances: 1. Where the husband is absent, and had no knowledge of the intended act; 2. Where the husband is absent, but where the tort is done under his direction and instigation; 3. Where the husband was present, but the wife acted of her own volition; and 4. Where the tort is committed in the company of the husband, and by his command or encouragement. "In the first three cases, they are jointly liable, and the wife must be joined. She is really the offending party, and if the marriage should be dissolved by divorce or the death of either spouse before judgment recovered, the liability of the husband ceases. He is joined because the wife cannot be sued aloue.

But in the last case supposed, the law considers the tort as committed by the husband, and he alone is liable." In trover, for the unlawful conversion of a chattel, alleged to have been committed by the wife, both husband and wife may be joined, but the conversion must be alleged to have been for the benefit of the husband. It is erroneous to charge it to have been for their joint benefit: Estill v. Fort, 2 Dana, 239; Tobey v. Smith, 15 Gray, 535; Knowing v. Manly, 49 N. Y. 192–198; Heckle v. Lurvey, 101 Mass. 344. The conversion of property to use merely by the wife, is to the use of her husband, and not of herself. The mere detention of property wrongfully by her, is not her tort, but her husband's. This appears from the fact that the action of detinue, the gist of which was wrongful detention, can be maintained against the husband only: Shaw v. Hallihan, 46 Vt. 389–393.

An action will lie against a husband and wife jointly for slanderous words spoken by the wife before marriage: Hawk v. Harman, 5 Binn. 43.

It seems that an action to recover for slanderous words spoken by a wife, the declaration must be against the husband and wife jointly, and must charge the words to have been spoken by the wife, as from the nature of slander there can be no joint utterance of the words constituting it: Roadcap v. Sipe, 6 Gratt. 213; Baker v. Young, 44 Ill. 42.

EFFECT OF RECENT STATUTES CONFERRING ADDITIONAL RIGHTS UPON MARRIED WOMEN, UPON ACTIONS FOR THEIR TORTS.-The recent statutes adopted in many of the states, conferring additional property rights, and enlarging the power to contract, of married women, have materially affected the liability of husbands and wives for the torts of the latter. The reasons why the husband was made liable at common law for the torts of his wife, were very satisfactory. He was entitled to the rents and profits of his wife's real estate during coverture, and to the dominion over her personal property in possession. By the marriage, the wife was entirely deprived of the use and disposal of her property, and as, without qualification, her person, her labor, and her earnings belonged absolutely to her husband, she could acquire no new property by her industry; and as he had the power of restraining her by domestic chastisement in moderation, the law thought it reasonable to make him answer for her misbehavior. In contrast to this, the supreme court of Illinois, in discussing the effect of these statutes, say: "Now, he cannot enjoy the profits of her real estate without her permission. He has no control over her separate personal property. It is not subject to his 'disposal, control, or interference.' Language could not be more explicit. All her separate property is 'under her sole control, to be held, owned, possessed, and enjoyed by her the same as though she was sole and unmarried.' He has no right to use or dispose of a horse or a cow without her consent. He can no longer interfere with her choses in action. They are under her sole control. The product of her labor is her exclusive property. She alone can sue for and enjoy it Any suit for her earnings must be in her own name, and she may use and possess them free from the interference of her husband or his creditors." Again it is said: "The rights acquired by the husband by virtue of the marriage have almost all been taken away; and the disabilities of the wife have nearly all been removed." The court then forcibly say: "A liability which has for its consideration rights conferred should no longer exist when the consideration has failed. If the relations of husband and wife have been so changed as to deprive him of all right to her property and to the control of her person and her time, every principle of right would be violated, to hold him still responsible for her conduct. If she is emancipated, he should no onger be enslaved": Martin v. Robson, 65 Ill. 129; almost identical views

are expressed in Norris v. Corkill, 32 Kan. 409, where the court conclude: "Under the provisions of our statute, the reasons assigned for the liability of the husband for the torts of his wife no longer hold good, and therefore, in our opinion, under the changes made by the statute, the liability no longer exists. It is a part of the common law that where the reason of the rule fails, the rule fails with it." In New York, the court hold that the statutes of that state relating to the property rights of married women have not altered the common-law liability of the husband for the personal torts of his wife, but that such rule is changed only as to torts committed by her in the management and control of her separate property, for which she alone is liable: Baum v. Mullen, 47 N. Y. 577; Rowe v. Smith, 45 Id. 230; Brooks v. Schwerin, 54 Id. 343. The provisions of the Pennsylvania statute are not as broad as those from Illinois and Kansas above mentioned, and it is held by the courts of that state that under their statutes no exemption is given the husband from liability for the wife's torts, except that where a judgment is obtained against him for such torts execution must first issue against her property: Quick v. Miller, 103 Pa. St. 67.

It seems that under the Michigan and Iowa statutes, a husband would enjoy as great immunities as under the Illinois and Kansas enactments: Berger v. Jacobs, 21 Mich. 215; Musselman v. Galligher, 32 Iowa, 383; Pancoast v. Burnell, 32 Id. 394; Mewhirter v. Hatten, 42 Id. 288.

RICE v. TAVERNIER.

18 MINNESOTA, 248.]

POWER OF ATTORNEY TO ONE TO SELL CERTAIN REAL ESTATE IN "LOTS AS SURVEYED BY" CERTAIN PERSON, where the land was about to be so surveyed as an addition to a town, does not empower the agent to sell the entire tract for a certain sum or at so much per acre.

WHERE ONE, IN GIVING NAKED POWER, PRESCRIBES IN INSTRUMENT CREATING IT the manner of exercising it, every requirement must be strictly complied with, or the power does not arise.

WHERE AGENT WAS EMPOWERED TO SELL CERTAIN REAL ESTATE IN TOWN LOTS AS SAME was about to bE SURVEYED, and when but a small part of it had been surveyed, he conveyed the entire tract in bulk, at so much per acre, the sale was unauthorized, and void even as to the part already surveyed.

NOT RATIFICATION.

Where an attorney in fact, in excess of his authority, conveys lands of his principal, and the principal himself afterwards sells other lands of his, adjoining thereto, and describes it as being bounded by the land deeded by his attorney, this is not a ratification or confirmation of the unauthorized sale.

THE opinion states the case.

Heard, for the plaintiff in error.

J. and C. D. Gilfillan, for the defendant in error.

By Court, EMMETT, C. J. The plaintiff was the owner of a tract of land, adjoining the original town of St. Paul, in the county of St. Croix, Wisconsin, now county of Ramsey, Min

nesota, which was then being, or about to be, in part at least, laid out into lots, as an addition to said town. In January, 1849, he gave to one Roswell P. Russell a power of attorney to sell and convey the same, "in lots as surveyed by B. W. Brunson, and Russell afterwards, in the absence of the plaintiff, but in pursuance, as he supposed, of the authority conferred by said letter of attorney, conveyed to Guerin, the grantor of the defendant, a portion of said tract, consisting of about thirteen acres. The part thus conveyed had not yet been surveyed into lots, nor had it, or any portion thereof, been in any manner surveyed, except that a very small part, of about one third of an acre in extent, and constituting the land in dispute in this action, had been surveyed into a block and streets. The first question to be determined therefore is, whether Russell was authorized by the power to sell and convey any portion of the property not surveyed into lots. We must first ascertain, if possible, what was intended by the use of the words "in lots, as surveyed by B. W. Brunson," and then give effect to that intention, if we can reasonably and equitably do so; for it must not be lost sight of that the plaintiff had the right to annex just such conditions to the exercise of the power as he saw proper; and they being contained in the instrument creating the power, all persons dealing with the attorney were bound to know these conditions or restrictions upon his power to convey, and are answerable for a proper construction of the terms by which they are imposed.

As before remarked, the tract mentioned and described in the power adjoined the town of St. Paul, and its value was doubtless greatly enhanced by that fact. It was then being or about to be laid out into town lots, as an addition to said town, and the inference is fair that this was being done because it could be disposed of to better advantage as town property than by the acre. It was perfectly natural for the owner, therefore, when authorizing an agent to sell, that he should limit him to sales by the lot, instead of by the acre,-indeed, not to have done so would have been very remarkable, after having laid it out into town lots, or provided for so doing. And what form more convenient or comprehensive than that adopted, considered either in regard to the description of the property embraced, or the particular manner in which it should be disposed of? By adopting this general description, a particular enumeration of all the lots and blocks which had been or might be made out of eighty acres of land was

avoided,- -an enumeration which could not possibly be made until after the land had been surveyed and platted. And to my mind, by the use of the words "in lots as surveyed by B. W. Brunson," the idea is clearly conveyed that it could only be sold in small parcels, as designated on the plat. No one, I think, could reasonably conclude, after reading this instrument, that the plaintiff intended thereby to authorize Russell to sell and convey the whole tract in one parcel. This would not only be inconsistent with his having it surveyed into lots at all (a fact plainly inferred from the instrument), but would be ignoring the words "in lots as surveyed," etc., which, if used for any purpose, we are bound to give effect to if we can. And yet Russell had the same power to sell the whole tract as one parcel that he had to sell any portion by the acre. We believe that it was the intention of the plaintiff, by the use of these words, to limit Russell to a sale of lots only, and thus secure to himself the benefit to be derived from a sale of the tract as town property.

The power given was but a naked power, and where the owner of an estate prescribes in the instrument creating such a power the manner of exercising it, every requirement must be strictly complied with, or the power does not arise: Jaques v. Todd, 3 Wend. 83; Munn v. Commission Co., 15 Johns. 43 [8 Am. Dec. 219]; Blackwell on Tax Titles, 49; Hawkins v. Kemp, 3 East, 410; Loomis v. McClintock, 10 Watts, 274; and applying a remark made in the case last cited, the attorney here, and those with whom he dealt, were bound to notice that there was meaning if not wisdom in the use of the words "in lots as surveyed by B. W. Brunson." The particular manner in which property is directed to be sold and conveyed, is matter of substance, and not of form merely. A power to sell at public auction does not authorize a sale by private contract, whatever may be the price offered: Dart's Vendor and Purchaser of Real Estate, 30. Not even if the price is greater than that limited: Id.; 1 Sugden on Vendors, 62. Nor does an authority to sell to A for a given sum necessarily justify a sale to B for that or even a greater sum: Dart's Vendor and Purchaser, 31. A power to sell at retail would not authorize a sale at wholesale, nor should a power to sell a tract in town lots be construed as authorizing a sale of the whole in one body as an entire tract.

It is contended, however, that although Russell may not have had authority to sell and convey all the land mentioned