p. 687William McMullen, the husband of the defendant, which was duly docketed as therein set forth, and that an execution was duly issued on said judgment, as alleged in said complaint, and returned wholly unsatisfied, as alleged in said complaint, and that said judgment remains wholly unpaid and unsatisfied.
5. That the husband of the defendant had not, at any time during the marriage, neglected or refused to support the defendant and their children.
6. That the defendant owed debts contracted for articles consumed by his family, and had not been able to pay the same.
7. That the articles purchased of the plaintiff, and for which the judgment was recovered, were used in the family, and that during the time the family consisted of defendant, her husband and children, and one boarder ; and that the boarder paid his board, to the defendant.
8. That in the months of July and August, of the year 1866, the defendant and her children were absent from home from four to six weeks, and that during such time purchases were made from day to day, and the articles were used in the house.
The conclusions of law were :
That the defendant’s separate estate and property, described in the complaint, were liable for the debt so contracted, and for the judgment and interest on the same from the 24th day of June, 1868.
Judgment was entered that the plaintiff collect the amount of said demand out of the property of said defendant, described in said complaint.
The defendant excepted to the second finding of fact, and to the conclusion of law found, and the direction for judgment given by the referee, and appealed from the judgment.
Mr. William I. Butler for appellant.
The act of March 20,1860, chapter 90, page 157, provides that a married woman may hold certain property, specifying the same, and that “it shall not be subject to the interference or control of
p. 688her husband, or liable for his debts, except such as may have been contracted, for the support of herself or her children, by .her as his agent”
The wording of the clause under consideration is in the form of an exception. It is not an enactment; and unless the wife’s property was liable by statute, or by the common law, previous to the passage of this act, then this act does not create any such liability.
In the act of 1848, and in the amendment of 1849, it is provided that any married female may take, by inheritance, gift, &e., and hold to her sole and separate use, and convey and devise, real and personal property, and that the same shall not be liable for her husband’s debts.
The act of 1860 repeals that of 1849, with respect to one species of debts, thus leaving in force the common-law liability. But that cannot affect the real estate of the wife, and she is not alleged to be the owner of any other than real estate. “ No debt can be a charge that is not connected by agreement, either express or implied, with the estate.” If contracted for the express benefit of the estate, it would, of course, become a charge upon it; but no other debt can be thus charged without some affirmative act of the wife evincing such an intention.
Mr. Oscar Frisbie for respondent.
This action is brought under the statute of 1860, the last part of the first section of which provides th&t a married woman’s estate shall not be liable for her husband’s debts, “ except such debts as may have been contracted, for the support of herself or her children, by her as his agetit.”
, The application of the last clause of the statute above quoted to the facts of this case will determine this action.
The statute says, in effect, that if a married woman /contract a debt for the support of herself or her children, as the agent of her husband, her estate shall be liable therefor.
The manner in which she was constituted his agent, whether it
p. 689be by an implied or positive authority, makes no difference, so long as she has the authority; in either case she would be his agent.
We are to take this word “ agent” as used in the statute in its common acceptation, leaving the manner in which the wife is constituted the agent to be established by the facts of the case.
On this branch of the case it is claimed, on the part of the plaintiff, that the following propositions are established by the evidence:
That the d "bt in question was contracted by the defendant as the agent of i ter husband.
That the debt was contracted by her, as such agent, for tile support of herself or her children.
This action is brought to charge the “ sole and separate estate” of the defendant; it only has relation to her estate, not to any estate that belongs to any one else, or an estate over which any one but the defendant has any control.
By the Court:
By the judgment in this action the separate property of a married woman, consisting entirely of real estate held by her in her own right, is sought to be made liable for the payment of the amount of a judgment previously recovered against 'her husband for a debt, which the referee found was contracted by him, but through her as his agent, for her support and the support of her children. To sustain the action of the referee, the plaintiff and respondent relies upon the first section of chapter 90 of Laws of 1860, which provides, among other things, that the separate property of a married woman shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children, by her as his agent.
It certainly cannot be denied that this language is sufficiently broad to give color to the claim advanced by the plaintiff. But the proposition contained therein to the effect that the estate of a married woman can be held liable for necessaries which in
p. 690law the husband is bound to furnish, whenever they are purchased by her in her husband’s name, and under express authority derived from him for that purpose, is of so novel and startling a character as to call for further investigation. Necessaries purchased by a married woman are not chargeable upon her separate estate, unless, perhaps, purchased expressly on the credit of it, and charged upon it by some affirmative act on her part sufficient in law for that purpose; if purchased by the bus-band for her, in his own name, he alone is liable for them; so, if he make the purchase through' his son or daughter, or any other agent recognized as such by the seller for that purpose, with the exception of his wife, no one will be bold enough to assert that the agent incurs a liability which can he enforced either against the person. or the property of such agent.' How then could the legislature have intended to make the separate estate of a married woman liable for necessaries purchased by the husband in his name and upon his credit, but through her agency, and upon that ground alone ? The fact that the husband in' the case at bar afterwards turned out to he insolvent is of no importance; for if the wife’s estate can be held liable at all under this statute, the liability attaches irrespectively of the solvency or insolvency of the husband, and if it can he held liable for the purchases proved to have been made in this instance, the separate estate of every married woman may he held liable for every item of family expense, which the husband should direct, or allow the wife to supply, on his credit. In this manner the whole burden of family support could be shifted from the husband to the wife, and a designing husband would thus not only he enabled to impose upon the wife burdens from which the policy of the law has at all times protected her, but to destroy her separate estate, hi case it is not too large to he overcome in that way. This is so contrary to the policy pursued by the law-making power of this State during the last twenty years that I cannot believe the legislature of 1860 intended to effect any such result. The object of all legislation upon the rights of a married woman has heretofore been to shield her against the power of her husband
p. 691and against Ms disposition to appropriate and squander her property. It may be a question whether this object has in all eases been successfully accomplished, but that this was such object cannot be disputed. The first radical change in the common-law rule that the husband, upon marriage, becomes entitled to all the personal property of the wife, and to the rents and profits of her real property during their joint lives, but becomes liable to pay her debts and perform her contracts, was made by the passage of the acts of 1848 and 1849. Under these statutes any married woman was enabled to take and hold real as well as personal property separate and apart from her husband, and to enjoy the same, and the rents, issues, and profits thereof, in the same, manner as if she were a single female, and to manage it either personally, or by the agency of her husband, or any other person; she could even purchase a business, and the good-will belonging to the same, and carry it on for her sole benefit, although meeting with many difficulties in this respect, for she had no capacity to make contracts at large which were binding upon her personally, according to the general rules of law, and those who dealt with her had to run the risk of getting their pay; she could only contract a debt for her own -benefit, and on the credit of her separate estate, which might be enforced in equity, but in no event could her property be held liable for the debts of her husband. The statute protected it against such liability in express terms. ■
The act of 1860 is more comprehensive than thosé which preceded it. It confirms her. title to her separate property in stronger terms than those used in the previous acts; it preserves her previous powers in respect to her separate estate; in addition thereto, express authority is conferred upon her to bargain, sell, assign, and transfer her separate personal property, to carry on any trade or business, and perform any labor or services on her sole and separate account, and the act makes her earnings from her trade, business, labor, or services, her sole and separate property, and enables her to use or invest the same in her-own name. The power thus conferred to carry on a trade or business includes the ability to make bargains and contracts in rela
p. 692tion to it in almost, any mode .known to the law, and according, to the practice of the commercial community, and such bargains and contracts have been held valid against her, notwithstanding her coverture, provided they were made in the regular course of her trade or business, and as an incident to it. By the act of 1862, the remaining common-law disabilities of a married woman were still further reduced. Thus it seems to have been the set •. tied policy of the law-making power to render the wife, in respect ' to her separate property, as independent of the husband as the welfare of society generally, in the judgment of the legislature, permitted. The intention of the legislature in, passing the first so-called married women’s act may be sufficiently gathered from the title of said act, which recites that it is an act for the more effectual protection of the property of married women; and the fact that all subsequent acts of a similar character were .made with the same intent most clearly appears from the gen • eral language thereof.
In view of this general legislative intent, which thus manifests itself throughout, and in view of -the fact that, under' the acts of 1848 and 1849, the courts at all times were cautious and guarded in their action, and scrupulously protected the rights of .married women as to their estates, even against their own acts (see Coakley v.Chamberlain, decided at the present term), I am satisfied that, when the legislature did pass the act of 1860, they did not mean to enact that the separate estate of a wife should be made liable for the debts of the husband, contracted for necessaries by her as his agent. I incline to the opinion that. it was their intention to make the concluding portion of the first section of said act read, that the said separate property “ shall not be subject to the interference or control of her husband, or liable for his debts, except such as may have been contracted for the support of herself or her children by him as her agent,”-and that an unintentional transposition of the words “him” an d her,” and a subsequent transformation of the word “ him ” into “ his,” took place. If the statute can be thus construed, it is within the power of the courts to bring it into harmony with the
p. 693other provisions of law defining and regulating the rights and liabilities of husband and wife, and whatever objections might still be made as to the propriety or expediency of its enactment in the form suggested could be left to be addressed exclusively to the power which is responsible for the creation of the entire statute. But although it has been determined that the acts for the more effectual protection of the property of married women are remedial statutes, and that, as such, they demand a liberal construction to carry into effect the beneficent intent of the legislature, regardless of the strict letter of the law itself, I entertain serious doubt as to my power, as well as to the propriety of adopting a construction which demands a reversal of the very words used by the legislature upon the point referred to; and inasmuch as I find, upon examination of the facts of the case, that justice may be done without resort to such construction, I shall content myself with the foregoing expression of my views.
I think it is but just and fair to hold that, before the plaintiff can insist upon a liability heretofore unknown and unrecognized even by the moral law, but created solely by statute, against the estate of the defendant, he must bring himself within the strict letter of the statute. The facts, as found by the referee, show that the husband of the defendant has not, at any time during the marriage, neglected or refused to support the defendant and his children by her; that all the articles purchased of the plaintiff, for which the plaintiff first had judgment against the husband, were articles for general family use; that the family consisted of the defendant, her husband and children, and one boarder; that the said articles were consumed generally by the family thus described, and a part of them were so consumed by the husband and boarder during the absence of the defendant and her children from home, which absence lasted from four- to six weeks. These findings tend to show, as the evidence in the case conclusively does, that it was the husband who kept the house; if the purchases were made by the wife as the agent of the husband, the payment of board to the wife must be deemed a payment to the authorized agent of the husband ; and as the
p. 694husband and boarder participated in the consumption of the articles, it cannot be truly said that the debt was contracted by the husband for the support of the defendant or her children. To entitle the plaintiff to a recovery, he was at least bbund to
show that the debt was contracted by the husband for the exclusive support of the defendant or her children. Another objection, which seems to me fatal, is that the debt of the husband became-merged in the judgment which plaintiff recovered against him, with costs of suit. ' •
I am of the opinion, therefore, that, upon the facts as found, the referee’s conclusions of law and direction for judgment are erroneous; that the judgment appealed from should be reversed, the order of reference vacated, and a new trial granted, with costs to appellant, to abide the event