has the clap, that she has the pox, is actionable per se, without proof of special damage, and therefore she may unite with her husband in an action for the slander.

In Rouiller agt. Wernicki, 3 E. D. Smith, 310, General Term, October, 1854, WOODRUFF, J., it was decided, that where the evidence establishes that a married woman and her husband occupy a house together, and that the "millinery business," in relation to which both take a part, is there carried on, connected with evidence that the defendant hired a room in the house from the wife, by a parol agreement, is not sufficient to enable the wife to bring an action alone for the rent, as her separate property. Such proof does not show that she has any separate estate. The recent statutes of this state (Laws of 1848 and 1849) do not enable them to become sole traders-buy and sell-make agreements-take leases become liable for the rent-and incur responsibilities of that nature. In Eckerson agt. Volmer, 11 How., 43, Special Term, March, 1855, ROCKWELL, J., it was decided, that in an action against husband and wife, relating to real estate, when process is served only on the husband, he is bound, except where the estate is the separate property of the wife, to enter a joint appearance, and put in a joint answer for himself and wife. An inchoate right of dower is an interest which results from the marital relation, and does not belong to the wife as her separate estate. The wife is deemed, in law, to be under the protection, as well as under the power, of her husband. All of her interest in the premises was a mere incident to his.

In Main agt. Stephens, 4 E. D. Smith, 86, General Term, February, 1855, INGRAHAM, J., it was decided, that in an action for necessaries furnished to the wife during coverture, she ought not to be joined as a defendant, where the proofs will warrant a recovery against either. The husband alone is liable for such necessaries.

In Freeman agt. Orser, 5 Duer, 479, General Term, March, 1856, SLOSSON, J., it was decided, that before the acts of 1848 and 1849, a married woman, even when her property was settled to her separate use, could not carry on any trade or business separately from her husband, and hold the earnings of it secure from the claims of his creditors, unless by his assent and agreement, given either before marriage, and in consideration of it, or subsequently, upon a new and valuable consideration. The acts of 1848-9 dispensed with the necessity of trustees to protect the wife's separate property, whether owned by her at the time of the marriage, or subsequently acquired, against the claims of her husband's creditors; but they did not give her any right to deal with such property in the way of trade, as a feme sole, without the agreement or assent of her husband. It is a necessary conclusion that a married woman, having separate property, has no right to invest it in a trade carried on by her in her own name, so as to hold the accretions and profits resulting from the business protected from the claims and interference of the husband's creditors. To enable her to do this, the assent of the husband, founded on a valuable consideration, is just as indispensable as before the acts of 1848 and 1849 were passed. The time, services, talents and industry of the wife belong to the husband, and are valuable in themselves. He has, therefore, as against his creditors, no more right to part with them, without a valuable consideration, than to make a voluntary settlement of any other property belonging to him in fraud of his creditors. Therefore, where there is no proof of any valid assent by the husband to a trade carried on by the wife, and it appearing that the earnings and profits, as well as her separate capital, were invested in the stock on hand, and there being no means by which they could be discriminated: it was held, that the whole was rightfully levied upon under an execution against the property of the husband.

In Smith agt. Scribner, 11 How., 501, Special Term, April, 1856, RooSEVELT, J., it was decided, that where, under the acts of 1848-9, a married woman contracts a debt founded upon her separate property, with the approbation and consent of her husband, the creditor has a right, at his election, of suing both, or either one of them; both, if he wishes to reach the wife's property; and the husband alone, if it is desired to bind him personally.

In Goodall agt. McAdam, 14 How., 385, N. Y. Superior Court, Special Term, April, 1857, HOFFMAN, J., it was decided, that in an action against husband and wife, to charge the separate estate of the wife, upon a note or bond signed by the husband and wife, the legal inference is that it was the debt of the husband. The legal conclusion is, that it could not be the debt of the wife, she being incompetent to contract it. In order to charge the separate estate of the wife, there must be something to show that it was given for her benefit-that is, for the use of her separate estate.

In Avogadro agt. Bull, 4 E. D. Smith, 384, General Term, September, 1855, DALY, INGRAHAM and WOODRUFF, J. Js., it was decided, that a husband may sue for services rendered by his wife; but where such services were performed in pursuance of a contract made directly with her, it seems, it is optional with him to join her with himself as a party plaintiff. The husband cannot sustain a joint action in the name of himself and wife, for both her services and his own.

In Malone agt. Stilwell, 15 Abb., 421, N. Y. Common Pleas, General Term, January, 1863, HILTON, J., it was decided, that a complaint, in an action against husband and wife, which states a cause of action for slanderous words of the wife, and a further cause of action for slanderous words of the husband, is defective, as joining two causes of

action improperly. A cause of action against the husband, for the wrongful act of his wife, cannot be joined with a cause of action against him for his own wrongful act.

In Rose agt. Bell, 38 Barb., 25, General Term, September, 1862, JOHNSON, J., it was decided, that a married woman, living with her husband, and having no separate estate, cannot, in the absence of her husband, and without his knowledge or consent, enter into an agreement, in writing, for the purchase of real estate on credit. And such an agreement is a mere nullity, conferring no rights and imposing no obligations upon either party. Hence, the possession of the premises is, in law, the possession of the husband, and in no respect that of the wife. Therefore, she is improperly joined with her husband in an action by the vendor to recover the possession of the premises for a default in the payment of the purchase money.

In Horton agt. Payne, 27 How., 374, Special Term, July, 1864, BALCOM, J., it was decided, that the law now is as it always has been, that the husband is jointly liable with the wife for her torts, whether committed before or after marriage. Therefore, in an action of libel against a married woman, her husband must be joined as a party defendant with her. And where process has been served on the wife only, she will be entitled to a stay of proceedings in an action until the husband has been served or brought in as a party with her.

In Porter agt. Mount, 41 Barb., 561, General Term, September, 1863, JAMES C. SMITH, J., it was decided that an action may be maintained by a borrower, against husband and wife jointly, to recover back money paid as usurious interest, where the money loaned, and the security taken therefor, belonged exclusively to the wife, as a part of her legal estate, and the money taken for the loan and forbearance, was paid to and received by her, and the husband, so far as he participated in the transaction, acted for her and with her knowledge and assent. In S. C., 45 Barb., 425, this decision is overruled, and it is stated by E. DARWIN SMITH, J., that in common law actions the name of no person should be in or upon the record as a party, except such as must have judgment pass for or against them. Married women now sue and are suable like unmarried women, and judgments are rendered for and against them, and enforced in the same manner as for or against other persons, under the statutes of 1860 and 1862. In common law actions. before the Code, where husband and wife were necessary parties, judgment always went in favor of or against both, but was collected primarily of the husband's property, if he had any; if not it might be charged in equity upon the wife's separate estate. Executions on such judgments went only against the property of the husband for the reason that the wife had no separate personal property; all her personal property on her marriage vesting in her husband, and the usufruct of her real estate during coverture, beloning to him. To reach the wife's separate property, now, she must be sued alone; otherwise the judgment against both is really a judgment against the husband as at common law. I can think of no case at common law where a husband can be a proper nominal party and be sued merely as such with his wife. But the plaintiff, I think, might be allowed to dismiss the complaint, and discontinue the action against John Mount to the same effect as if a verdict had been found in his favor at the circuit, and enter judgment on the verdict against Harriet Mount. I see no diffiulty in granting the plaintiff's motion in this respect, if we are satisfied that justice requires it or would be subserved thereby, and that the verdict was in all respects just and fair and no valid exceptions were taken at the trial.

In Porter agt. Mount, 41 Barb., 561, General Term, September, 1863, JAMES C. SMITH, J., it was decided, that under the provisions of the acts of 1848 and 1849, for the more effectual protection of the property of married women, having a separate legal estate consisting of money, she may lend the same, take and hold securities therefor in her own name, and sue for and enforce them at law. And the power to do these things includes the ability to make all contracts incident thereto. She is not exempt from the liabilities which the law imposes upon all other lenders of money. In S. C., 45 Barb., 422, E. DARWIN SMITH, J., it was decided, that in a common law action for money had and received, brought against husband and wife to recover back money paid as a usurious premium upon a loan made by the wife of moneys of her separate estate, where the evidence tends to show that the husband made the bargains with the plaintiff for the loan, and for the extension of credit, for his wife, and that she knew the character of the bargains so made, it is proper to charge the jury that if the wife knew her husband was receiving money for his own benefit, from the borrower, on account of the loan, she would be liable for the money so paid to him. If a wife, loaning money which is her separate property, is cognizant of the acts of her husband acting in her behalf, in exacting a usurious premium, so as to taint the agreement, as to her, with the usury, she will be liable to the borrower,, in an action for money had and received, even though the money does not come to her hands, but is received by her husband and retained by him for his own benefit with her knowledge and consent. Having consented that her husband and agent shall receive the money upon the corrupt bargain, the wife can not shield herself upon the plea that he has never paid it to her, but has kept it himself, by her consent. Payment to her agent, in such case, is payment to her.

5. Q. What statute has been passed relating to debts contracted by women before marriage?

A. "An act relating to debts contracted by women before marriage," passed July 18,

1853.

§ 1. An action may be maintained against the husband and wife, jointly, for any debt of the wife contracted before marriage, but the execution on any judgment in such action shall issue against, and such judgment shall bind the separate estate and property of the wife only, and not that of the husband. § 2. Any husband who may hereafter acquire the separate property of his wife, or any portion thereof by any ante-nuptial contract, or otherwise, shall be liable for the debts of his wife contracted before marriage, to the extent only of the property so acquired, as if this act had not been passed. 3. This act shall take effect immediately.

6. Q. In what cases is it improper to join the husband with the wife, in actions affecting her or her separate estate?

A. In Sherman agt. Burnham, 6 Barb., 403, General Term, May, 1849, EDMONDS, J., it was decided, that a bill cannot be filed by husband and wife jointly, against the trustees of the wife's separate estate, appointed under her father's will, for the purpose of removing the trustees; to have an account from them; and to have the estate of the testator distributed agreeably to the will. Where the wife's separate estate is held by trustees in trust for the wife for life, with the remainder to her child, the entire beneficial interest is in the wife and her child, and the husband has no interest therein. Such bill should be filed by the wife alone, by her next friend, making her husband a party defendant.

In Bronson and Wife agt. Gifford and others, 8 How., 391, Special Term, July, 1852, HARRIS, J., it was decided, that where a married woman, by virtue of a will and the operation of the statute, becomes entitled to an undivided interest in real estate as her separate property, an action to ascertain and establish the rights and interests of all the parties in interest, and that partition be made, should be brought by the wife alone, without joining her husband with her, as plaintiff.

In Rusher and Wife agt. Morris and Wife, 9 How., 266, Special Term, April, 1854, ROOSEVELT, J., it was decided, that where a suit is brought by a married woman, concerning her separate property, her husband must be joined with her, unless she elects to sue alone.

But "per contra." In Smith agt. Kearney, 9 How., 467, Special Term, N. Y. Superior Court, April, 1854, HOFFMAN, J., it was decided, that the very idea of a separate estate is an estate held by the wife in opposition to a marital right. Therefore her position is antagonistic to his as to such property, whatever may be the actual union of views and acts between them. That upon clear authority before the Code, and upon a true interpretation of the Code, an action which relates to the separate property of the wife, cannot be brought by her and her husband as plaintiffs.

In Chapman agt. Lemon and Wife, 11 How., 235, Special Term, March, 1855, HARRIS, J., it was decided, that where an action is brought to recover a debt created by the contract of the wife, and to charge her separate estate for it, it seems that it is not improper to join the husband as a defendant, although no judgment can be rendered against him in personam.

In Phillips & Northrup agt. Hagadon and Wife, 12 How., 17, Special Term, November. 1855, DEAN, J., it was decided, that where the husband and wife are sued jointly ou their joint note to charge the separate estate of the wife for its payment, the action is well brought against both, although no judgment can be rendered against her in per

sonam.

Iu Spies agt. The Accessory Transit Company. 5 Duer, 662, Special Term, April, 1856, BOSWORTH, J., it was decided, that a complaint, in an action by a married woman, which states that a passenger carrier undertook to carry her and her baggage from California to New York; that the baggage was her separate property, and was stolen on the passage, is good in substance. Her husband is not a necessary party to such an action. Whether the plaintiff is a citizen of California or New York, is of no consequence so far as concerns the remedies and forms of proceedings, when she prosecutes in the courts of this state. The court does not know that a California wife may not have separate property. The legal presumption is that she may.

In Hillman agt. Hillman, 14 Hor., 456, General Term, May 1856, HARRIS, J., it was decided, that a demurrer to a complaint will seldom lie for the non-joinder of a defendant. The case of a husband, in an action brought by the wife alone to recover her sep. arate estate, forms no exception to this rule. He should be made a defendant, if he claims any interest in the subject of the action, or if a complete determination of the matter before the court cannot be made wihont him; and it must be shown that his interest requires that he should be made a party to the litigation; but the mere fact that he is a husband is not sufficient grounds for making him a defendant.

In Walker agt. Swayzee, 3 Abb., 136, N. Y. Common Pleas, General Term, July, 1856, BRADY, J., it was decided, that in an action concerning the separate property of a mar

ried woman, in which the husband is joined, it is improper to render a judgment against him in personam. In reference to the property of a married woman, held by her under the acts of 1818 add 1849, she may be sued alone, and a personal judgment may be rend ered against her, as if she were sole.

In Smart agt. Comstock, 24 Barb., 411, General Term, January, 1857, S. B. STRONG. J., it was decided, that where money belonged to a married woman, and which has never been in her husband's possession, is lent by her, with his assent, and a promissory note given to her for the amount, she may maintain an action thereon without joining her husband as co plaintiff. Where a female, prior to her marriage, comes into possession of money, which she invests, and after her marriage she keeps the same in the form of a chose in action, payable to her, with the express consent of her husband, it remains her property, and an action upon the security is properly brought in her name alone. In Darby agt. Callaghan, 16 N. Y. R., 71, September, 1857, SHANKLAND, J., it was decided, that a lease for years is a chattel real, and is an interest in lands, within the act of 1849, which a married woman may take and hold, the same as if she were unmarried. And the demise to a married woman, by a person other than her husband, of a term for years in land, by a lease reserving rent but containing no covenant or agreement on her part for its payment, is a valid grant, by which she may take and hold the premises to her sole and separate use, under the acts for the protection of the property of married women (ch. 200 of 1844; ch. 375 of 1849.) When a married woman had the actual possession of land, held by her for her separate use, and has been wrongfully ejected therefrom, she may, under the Code of Procedure, maintain an action in her own name to recover the possession, without joining her husband.

In Vincent agt. Buhler, 1 Daly, 165, General Term, August, 1861, HILTON, J., it was decided, that a lease executed by a married woman, containing covenants on her part to pay the rent, and expressing no intention to charge her separate estate therefor, is absoIntely void, and constitutes no bar to an action against the husband for use and occupa

tion.

In Arnold and Others agt. Ringold and Wife, 16 How.. 158, Special Term, April, 1858, CLERKE, J., it was decided, that the acts of 1848 and 1849, have made no change with regard to the personal liability of a married woman. When she has a separate estate, her obligations incurred on the faith of it, or for the benefit of it, are enforced when capable of being enforced, as a charge and never as a personal liability. But it is essential that it should expressly appear that she charged her separate estate; this is the gravamen of the claim, and is indispensable to the remedy, which the plaintiff asks the court to afford. When in general language it is declared that "a married woman cannot make a contract, it is meant that she cannot make a contract charging herself personally. But she can incur a debt by the purchase of goods or any other obligation, and such are contracts, and make them a charge on her separate estate, although she may not be personally liable.

In Ackley agt. Tarbox, 29 Barb., 512, General Term, July, 1859, MASON, J., it was decided, that a husband and wife cannot maintain an action in their joint names to recover for the conversion of the separate property of the wife. The wife should bring the action alone in such a case. [The decision of WILLARD. J., in Ingraham agt. Baldwin, (12 Barb., 10), and ROOSEVELT, J., in Rusher agt. Morris, (9 How., 266), is questioned, and that of HOFFMAN, J., in Smith art. Kearney, (9 How., 466), approved.] In S. C., 31 N. Y. R., 564, this decision of Judge MASON is reversed, (without changing the doctrine), and the court. DAVIES, J., says: In an action brought in the name of the husband and wife for damages to the separate property of the wife, the joining of the name of the husband is unnecessary; and, under the 173d section of the Code, it may be stricken from the proceedings, either before or after judgment. It is, therefore, not such an error as calls for a reversal of the judgment; but his name will be stricken out, on motion, leaving the judgment to stand in the name of the wife.

In Newbery agt. Garland, 31 Barb., 127, General Term, February, 1860, EMOTт, J., it was decided, that an action brought by a married woman, for fraudulent representations, whereby the plaintiff was induced to sell, and part with, certain lands of which she was seized to her separate use, and in which she had a separate estate, and with this separate property to purchase certain worthless stock, relates to her separate estate, and is properly brought by her alone, without joining her husband.

In Merchants Insurance Co. of New York agt. Hinman, 34 Barb., 410, General Term, May, 1861, it was decided by the COURT, that if the widow has married again, her husband is not a necessary or proper party to an action brought against her, by a creditor of the estate, for the purpose of recovering the value of assets paid over to her as one of the next of kin, by the administrator.

In Fox agt. Duff, 1 Daly, 196, General Term, March, 1862, HILTON, J., it was decided, that a married woman who hires premises in her own name has an interest therein, within the meaning of Laws of 1849, chap. 375, p. 528, and may maintain an action for a trespass thereon in her own name. The action was also properly brought in her own name, without joining her husband as a party plaintiff, as it concerned her separate property, and in respect to which she was competent to sue or be sued alone. (Darby agt. Cal

laghan. 16 N. Y. Rep., 71; Code, § 114, sub. 1; Laws 1860, p. 158, §7; Vincent agt. Buhler, Com. Pleas, General Term, August, 1861.)

7. Q. Can a married woman, sued with her husband in respect to her separate estate, demur or answer separately?

A. In Arnold agt. Ringold and Wife, 16 How., 158, Special Term, April, 1858, CLERKE, J., it was decided, that a married woman sued with her husband in respect to her separate estate, may put in a separate demurrer. Where she is proceeded against in respect to her separate estate, she must be treated and may act as a feme sole, whether her husband is or is not united with her in defense of the action. If the rule was not so, a married women when sued by her husband, as in some cases she can be, would be under the necessity of asking permission to do what it probably would be against his interest to grant, and she would thus be entirely in the power of her opponent, placing her separate rights practically at his disposal.

In Harley agt. Ritter and Wife, 18 Hour., 147, N. Y. Common Pleas, Special Term, November, 1859, BRADY, J., it was decided, that in an action against husband and wife, where the husband is joined in right of his wife: That is, when the action concerns the separate estate of the wife-it is not now necessary, as it was under the former practice, that application be made to the court for the wife to answer separately. She may now answer separately, of course, and without such application.

8. Q. Where it is a misjoinder to bring an action by husband and wife jointly, can the objection be taken by demurrer ?

A. In Dunderdale agt. Grimes, 16 How., 197, Special Term, May, 1858, EMOTT, J., it was decided, that where the husband and wife sue together to recover debts due him, or damages incurred by or inflicted on him; it is a misjoinder, and the objection may be taken by demurrer; because the relation existing between husband and wife, is not the same as that which exists between two ordinary co-plaintiff's-they are incapable of several judgments at the trial.

In Palmer agt. Davis, 28 N. Y. R., 242, September, 1863, MARVIN, J., it was decided, that a husband is not a proper party, in an action by the wife concerning her separate property-as upon an award in her favor. Such property is held by her in opposition, and without regard to marital rights. If a husband be joined as a plaintiff, in such an action, the defendant may demur to the complaint, on the ground that it does not state a canse of action in favor of the husband: and as to him, the complaint will be dismissed. The defendant may also raise the question on the trial-no cause of action appearing in his favor-and procure as to him, a dismissal of the complaint. But he can not claim a dismissal as to both plaintiffs. The wife having no legal capacity to sue, except by a next friend, previous to the amendment of section 114 of the Code, in 1857, the defendant might demur on that ground, where she sued jointly with her husband. As that objection appears upon the face of the complaint, it will be waived, if not taken by demurrer, and can not be raised upon the trial.

9. Q. When and how does a married woman charge her separate estate; and in what cases will her separate estate be recognized and protected for her benefit?

A. In Yale agt. Dederer, 18 N. Y. R., 265, S. C., 17 How., 165, December, 1858, CoмSTOCK and HARRIS, J. J., it was decided, that there are two modes in which the separate estate of a married woman may be charged with the payment of her pecuniary engagement. The one where she has, in terms and by an appropriate instrument, made such charge, and the other where though she has not, in making the contract, referred to the separate estate, or expressed her intention to satisfy it out of such estate, yet the circumstances of the case are such as to leave no reasonable doubt that such was her intention. A married woman does not charge her separate estate by the execution of a promissory note with her husband as his surety, not for her own benefit or the enhanceiment of her estate. When she is a mere surety, equity will not enforce against her a promise which is void at law, and in such case her separate estate can only be charged by virtue of some instrument for that express purpose. The statutes (ch. 200 of 1818, and ch. 375 of 1849) do not remove their legal incapacity to contract debts. Equity recognizes a married woman's debt and charges it upon her separate estate, not on the ground that the contracting it is of itself an appointment or charge, but because, when contracted on the credit of the separate estate, or for its benefit or that of the woman, it is just that the estate should answer it. It seems that, as incident to the power of disposition given by the statutes, above referred to, a married woman may create an express charge on her separate estate, held under them, in the same manner as if she were a feme sole.

In Vallance agt. Bausch, 17 How., 213, General Term, May, 1859, SUTHERLAND, J., it was decided, that the personal property of a married woman, continued in her, or acquired and held by her as a married woman, under the provisions of the statutes of 1848 and 1849, go, on her death, without having made any disposition thereof by will or otherwise, absolutely to the surviving husband as his own, and not to her next of kin. And the husband is so entitled to it, as before those acts, as husband, and as an incident of the