M'Arthur v. Bloom — 9 N.Y. Super. Ct. 151

Majority

p. 151

M‘Arthur and another v. Frances Bloom.

(Before Oakley, Ch. J., Campbell and Bosworth, J.J.)

April 6;

April 30, 1850.

Headnote

The defendant was sued as the maker of two promissory notes, and the only defence set up was coverture. It appeared that she was a native of Prussia, but had lived in New York for more than seven years; and during that time had carried on business in her maiden name, as a feme sole. It also appeared that her husband, to whom she had been married more than twenty years, had continued to live in Prussia, and by the law of that country could not leave the kingdom without the express permission of the government.

Held, that the defendant, under these circumstances, might justly be considered and treated as a feme sole, and that the plaintiffs were therefore entitled to judgment.

This action was brought to recover judgment for two promissory notes, made by the defendant, payable to the plaintiff’s order. The making of the notes was not denied, but the defendant, in her answer, set up that she was a married woman; and that at the time of the making of the notes, and at the time of putting in her answer, her husband was living. The cause was tried before Mr. Justice Campbell and a jury, in January, 1853. On the trial, it appeared that the defendant was a native of Prussia; that she was married in that country over twenty years ago to a citizen of Prussia, named Argoe; that about seven years ago the defendant came to the United States,_ and took up her residence in New York, where she has passed under her maiden name, Frances Bloom; and in that name executed the notes in question. Argoe, the husband, still continues to live in Prussia; has never been in the United States; and it does not appear that he has ever had any intention of changing his residence. It also appeared that, by the laws of Prussia, no subject of that country can leave without a passport or permit from the government. Upon that state of facts the judge decided that the defendant must be considered and treated as a single woman; and he ordered a verdict for the plaintiff, subject to the opinion of the court. The verdict was rendered for $630.48, the amount proved to be due upon the notes.

p. 152

J. G. M'Adam, for plaintiffs,

moved for judgment upon the verdict. He cited 1 H. Black. R. 349; Gregory v. Paul, 15 Mass. 31 ; 2 Kent’s Com. pp. 138, 155, 156.

W. H. Taggard for defendant.

It would be difficult to distinguish this case from that of Gregory v. Paul, 15 Mass. 31 , except in that case it appeared that the husband had deserted the wife in England, while in this case the reasons of the separation, and of the wife assuming her maiden name, do not appear.

There is in the case before us, however, another fact, which may be considered of importance. It is, that, by the laws of Prussia, a passport or permit is required, to enable a subject of that country to emigrate. It may be that such permit would not be given to the husband, and thus the case would be brought within the rule of many of the English cases, as well as the principle upon which the rule was founded. Thus, when the husband was an alien enemy residing atiroad, the wife was always treated as a ftme sole, because it might well be that he would not be permitted to come into the country where she resided. So, when the husband was transported, even though for a limited period, the wife was also treated as a ftme sole, as the husband might not be permitted to return, or might be disposed never to return—even after his term of banishment had expired.

In such cases, it is said that it is greatly for the interest of the wife that she should be treated and considered as a ftme sole, or otherwise she could neither sue nor be sued; could neither enforce her rights, nor obtain the credit which might be necessary, in order to enable her to make a support for herself. (See cases, Gregory v. Paul, 15 Mass. 31 ; 1 Bosanquet and Pullen, 357; 2 Espinasse, 554; Robinson v. Reynolds, 1 Aiken, 174.)

There must be judgment on the verdict rendered in this case: