an action against every stockholder in every State of the Union where service can be obtained, and pursue such action until satisfaction is obtained from some stockholder in some State, it is obvious that a large amount of litigation might ensue, under which substantial justice, as among the stockholders, could not be worked out. The liability of the stockholder, as set forth in the declaration, is not a general liability for all the debts of the corporation. The execution against the stockholder which can be issued in Kansas. in the action against the corporation, as set forth in the declaration, is only "to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon." Probably, by the true construction of the statute, the action at law to charge stockholders, which is given as an alternative remedy, would be limited to a like amount as the execution; though, according to the averment of the declaration, the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment, without any other limitation being expressed. The present plaintiff does not contend that it can recover against the defendant the full amount of its judgment, but only the par value of the defendant's stock in the bank. The liability sought to be enforced is a strictly limited one. It seems to us that a bona fide, or at any rate a compulsory, payment to one creditor would discharge a stockholder to that extent from liability to others; and a payment of the full par value of his stock would, according to the view which has been expressed by this court be a full discharge. Halsey v. McLean, 12 Allen, 442, though as to this other courts might hold otherwise; Fowler v. Robinson, 31 Me. 189; Grose v. Hilt, 36 Me. 22. There is no averment in the declaration that the defendant has not thus been discharged from liability, and perhaps this is not necessary, as it would be more properly a matter of defense. But in case of several actions in different States, questions of priority of the claims of creditors might arise upon which the decis ions of the courts of the different States might not be uniform, and thus the defendant might be held liable more than once, and even a compulsory payment might not avail to protect him, as is shown by the cases cited by the defendant. Moreover, the defendant might, by way of set-off, present claims which he holds either against the corporation in Kansas, or against the creditor who sues him, and different decisions in respect to his right of set-off might be made in different States. These considerations are suggested to illustrate the practical difficulty of enforcing a liability such as that set forth in the declaration, in other States than that where the corporation is established, in such a way as to secure substantial justice. This difficulty is far greater in cases where no steps have been taken in the State where the corporation is established, to ascertain and determine the amount of each stockholder's liability. There the whole amount of debts can be ascertained, and the proper proportion assessed upon each stockholder; or his liability can be otherwise determined in a manner which will avoid many of the objections which exist against the maintenance of actions like the present. We remain satis fied with the conclusions heretofore reached by this court, that such an action, under the circumstances which appear here, ought not to be entertained in this State.

PRINCIPAL AND SURETY - BANK CLERK'S BOND-DEFALCATION.-In Garnett v. Farmer's Nat. Bank, 16 S. W. Rep. 709, decided

by the court of appeals of Kentucky which was an action against the sureties on the bond of a bank clerk, conditioned for the faithful performance of his duties as such, it appeared that the clerk made false entries in his individual deposit account kept by him as clerk, by which he defrauded the bank to a large amount, and also, while acting temporarily as cashier, converted to his own use other sums. It was held that the sureties were only liable for the amount fraudulently obtained by him while acting as clerk. Lewis, J. says:

In Morse on Banking (section 17) it is said that on principle it would seem clear-First. That, if loss to a bank is caused by the employment of an officer out of his sphere, the surety is not liable; and to this the cases agree. Second. That if it can be clearly shown that the extra duties had nothing to do with the loss, but that it was caused by the officer's conduct in the sphere of his own office, or by a wrongful advantage of the opportunities afforded by that office, the surety should be held; for it is a loss within the bond, unless there be an express provision that such duties shall avoid it. It is, however, stated by the author that the cases do not assent to the second proposition if the duties are of a higher grade than those of the bonded office. But the reason for that exception does not exist, and consequently it should not be applied, where it is made clearly to appear that the loss was caused alone by the non performance or wrongful performance by the officer of the proper and regular duties of his own office; for in such case it cannot be said to have resulted from greater temptation beirg put in his way, or greater facilities being afforded to do the particular wrong, than were contemplated and provided for in the bond. It is true, the surety has a right to judge of the circumstances and conditions in which he is willing to be liable, and cannot be made so beyond express terms of his bond; but where, as in this case, the clerk is enabled, by simply erasing and changing figures in books of which he has exclusive charge, to not only perpetrate, but conceal from the other officers, a fraud, we do not see how the loss to the bank thereby caused can be connected with, or fairly made a sequence of, his performance of the duties of casbier during the occasional and temporary absence of that officer. In Bank v. Traube, 75 Mo. 199, a case like this it was said: "It is clear that the sureties could not be held for any defalcation of Rodell as teller, and it may be they should not be held liable for any false entries made by him in order to conceal such defalcation, as they might be regarded as having been indirectly occasioned by the action of the bank in appointing him teller; but when the omission of Rodell to perform his duty as book-keeper is wholly disconnected from any improper act on his part as teller, and was not superinduced by his appointment as teller, we do not see why the sureties should not be held liable therefor." In our opinion the evidence clearly shows that King, without any other opportunity or means than such as his office of clerk afforded, and while acting entirely within the sphere of that office, fraudulently converted the sum of $3, 622. 92, and the express terms and conditions of the bond being thereby and thus violated, without contributing fault of the bank, his sureties are liable therefor. But we think it is just as clear they are not liable for the other sum, $1,000.

ASSIGNMENT FOR BENEFIT OF CREDITORS PREFERENCES.-Berger v. Varrelman, 27 N. E. Rep. 2065, decided by the court of appeals of New York is of interest on the subject of preferences, recalling the same question which came before the United States Supreme Court in White v. Cotzhausen involving the validity of a preference contemporaneous with but outside the instrument of assignment in this case. Immediately before making a general assignment for the benefit of creditors, the assignors confessed a judgment in favor of the father of one of them, they and he knowing that the amount of such judgment was more than one-third of the assets of the firm. It was held that a judgment setting aside such confession, as made in contemplation of the assignment and as part thereof, for the purpose of unduly preferring the creditor, contrary to Laws N. Y. 1887, ch. 503, which restricts such preferences to "one-third in value of the assigned estate," should be sustained, although there was no finding of fact that, when the debtors confessed the judgment, they contemplated making the assignment, but such conclusion was embraced as a finding of law. Such judgment is not rendered valid, in whole or in part, by the fact that the creditor had no knowledge that the debtor contemplated making an assignment. Though the terms of the act provide that "in all general assignments' such preferences are invalid, they are none the less invalid because made by a separate instrument, where they are made in contemplation of the assignment. Upon the last point the court says:

The question has several times arisen whether preferences created, not in a voluntary assignment, but by instruments executed at about the same time, and in contemplation of making a general assignment, were within the statute. In Preston v. Spaulding, 120 Ill. 208, 10 N. E. Rep. 903, the insolvents preferred certain of their creditors by confessing judgments, and on the same day that their gêneral assignment for the benefit of creditors was made. The point was taken that the statute made void only preferences in the general assignment, and not those otherwise given. In discussing this question it was said: "We hold that it is within the spirit and intent of the statute that, when a debtor has formed a determination to voluntarily dispose of his whole estate, and has entered upon that determination, it is immaterial into how many parts the performance or execution of his determination may be broken; the law will regard all his acts, having for their object and effect the disposition of his estate, as parts of a single transaction, and on the execution of a formal assignment will, under the statute, draw to it, and the law will regard as embraced within its provisions, all prior acts of

the debtor having for their object and purpose the voluntary transfer or disposition of his estate to or for creditors; and that, any preference so shown to have been made or given by the debtor to one creditor over another in such disposition of his estate, full effect will be given to the assignment, and such preference will, in a court of equity, be declared void, and set aside as in fraud of the statute." This doctrine has been approved in subsequent cases in that State, and also in the Supreme Court of the United States in White v. Cotzhausen, 122 U. S. 329, 9 Sup. Ct. Rep. 309, which arose under the Illinois statute. In that case an insolvent debtor, by deeds, bills of sale and warrants for the confession of judgments, disposed of all his property for the benefit of his brothers and sisters, who were creditors, but made no general as. signment. In an action brought in the Circuit Court of the United States to set aside the conveyances as violations of the thirteenth section of the voluntary assignment act, it was held that it was quite immaterial that no general assignment had been executed, but that any preference, however created, by an insolvent while engaged in making a complete disposition of his property, was forbidden and void under the act. The judgment of the circuit court was placed in part upon the ground that the conveyances and confessions of judgment "were made without adequate consideration, and with intent to hinder, delay and defraud the appellee Cotzhausen" (page 333, 129 U. S., and page 310, 9 Sup. Ct. Rep.), the complaining creditor, but the judgment of the supreme court was not rested upon that ground. It was said: "We have already seen that the circuit court proceeded upon the ground that the conveyances, bill of sale, confession of judgment and transfers by Alex. White, Jr., were made without consideration, and with intent to hinder, delay and defraud the appellee. Upon these grounds it gave him a prior right in the disposition of the property. We are not able to assent to this determination of the rights of the parties; for the mother, sisters and brothers of Alex. White, Jr., were his creditors, and, so far as the record discloses, they only sought to obtain a preference over other creditors." Page 344, 129 U. S., and page 313, 9 Sup. Ct. Rep. The reference to White v. Cotzhausen must not be taken as an indication of approval, nor this cautionary remark as an intimation that we disapprove of the doctrine that, when an insolvent, without making' a general assignment, transfers his entire estate to favored creditors by several instruments, it is a violation of the section, but the case is instructive in its reasoning, and shows the trend of courts when called upon to consider like statutes. In this State the supreme court (Stein v. Levy, 8 N. Y. Supp. 505), one judge dissenting, has declined to follow the doctrine of the case cited to its logical conclusion. In Pennsylvania it has been held (Banking Co. v. Fuller, 110 Pa. St. 156, 1 Atl. Rep. 731) that a confession of judgment to a bona fide creditor by an insolvent, on the eve of making a general assignment for the benefit of creditors, is not a violation of the statute which for bids preferences in assignments; but in most of the States the construction which we have indicated prevails.

LIBEL-INDORSEMENT ON ENVELOPE "BAD DEBT COLLECTION AGENCY."-The Supreme Court of Missouri, in State v. Armstrong, 16 S. W. Rep., hold that it is a libel to send through the mail an envelope having indorsed

thereon, in large letters, "Bad Debt Collecting Agency." Having employed the agency with knowledge of its methods, and having refused to stop its proceedings after having reason to believe that it was sending these envelopes to the prosecuting witness, the accused is responsible for the acts of the agency. Evidence that the prosecuting witness owed a few small bills is not competent for the defense. Gantt, P. J., says:

This information is drawn under section 3869, Rev. St. 1889, (section 1591, Rev. St. 1879), which defines a libel as follows: "A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation, or effigy tending to provoke him to wrath, or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends." Was the sending of this envelope with these indorsements on it the publishing of a libel, tending to provoke the prosecutrix to contempt or ridicule, and bring her in disrepute with her employers and the public? We are clearly of the opinion that it was. The words "Bad Debt Collecting Agency" were printed in large, bold type on the envelopes, and were obviously intended to attract the attention of the public? The words must be construed in the light of the times in which they are used. Similar associations had sprung up all over the country, and these devices were resorted to to force debtors to pay their debts. To such extent did they go that the congress of the United States forbade the use of the mails for their distribution. They had become so common that they were thoroughly understood in the mercantile world. Under this state of affairs, the defendant resorts to this Chicago agency to collect this debt of the prosecutrix. He sets in motion this machine for extorting this money from her. It was known that the prosecutrix was earning her living by her work in the large and responsible dry goods house of Scruggs, Vandervoort & Barney. Accordingly, these letters, four in number, are directed to her in the care of her employ

ers.

All the mail for the employees of this large house was put together and taken by the carriers to the store. There the various clerks went to a common repository for their mail. So that the scheme was well devised to attract the attention of those with whom she was most intimately connected, and without whose respect and good opinion the life of a sensitive woman would soon become a burden and unendurable. This envelope on its face was designed to attract the attention of the public, and when the prosecutrix received these letters in these envelopes the fact was thereby published that this association was in correspondence with her for the purpose of collecting a bad debt; and we cannot shut our eyes to the necessary implication that she was a bad debtor; that she was not in the habit of paying her honest debts; and was unworthy of credit. Nor are we left in doubt that this was the purpose of the association. In the letter which came under cover of this envelope the agency asks her: "Can you afford to have the public know that you refuse to pay this bill? You may need credit again some time, but as long as this account re

mains in this unsatisfactory manner it will be hard for you to obtain it." In other words: "By means of this style of publishing you to the world we will advertise you as unworthy of credit." Nor was this all. She is warned: "Should you positively refuse to make any arrangements for a liquidation of this claim, we feel justified in advertising the same for sale in the newspapers, as well as to send you a statement regularly until the matter is settled." These regular communications, if sent without these libelous words in large type, would not attract any attention; but, received regularly in this form, would give a painful publicity. The evident purpose and design of the defendant and the association he employed, and for whose acts he is responsible in this matter, was to publish the prosecutrix as a bad debtor, a dishonest person, who would not pay her honest debts, and to degrade her in the eyes of the public and her employers, and as such was clearly libelous, and within the meaning of the statute. Muetze v. Tuteur (Wis.), 46 N. W. Rep. 123; Dennis v. Johnson (Minn.), 44 N. W. Rep. 68; Johnson v. Com. (Pa.), 14 Atl. Rep. 425. The law will not countenance or tolerate this method of collecting a debt. The facts that the debt was originally only $3.45; that it was barred by the statute of limitations; that defendant persisted in his endeavor to extort the money from the prosecutrix after her protest; and the avowed intention of his agents to publish her to the world, and advertise this account for sale in the newspapers, amply sustain the charge that this was maliciously done. To permit a defenseless woman in this day of enlightenment to be thus persecuted would be a reproach to our laws. Beals v. Thompson (Mass.), 21 N. E. Rep. 959.

LIABILITY OF WIFE FOR FAMILY EXPENSES.

Many of the States have passed laws making family expenses chargeable upon the property of the husband or wife, or both. The statute generally declares that the expenses of the family, and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of the creditors, are in relation thereto, they may be sued jointly or separately.1

The State of Iowa was one of the first to enact this law, which declares that the expenses of the family, the education of the children, and such other obligations as come within the equity of the provisions, are chargeable upon the property of both husband and wife, or either of them, and in relation thereto, they may be sued jointly, or separately. This law is a radical change from the common-law rule that a married woman could not contract. This statute is enacted on the principle that the expenses of the family, and

1 Rev. Stat. Ill., ch. 68, § 15, adopted from the Iowa Code of 1873, § 2214.

the education of the children should, to the extent of their property, be met by both; so their property is chargeable for family expenses. Not that the wife is liable generally, though the husband is, but that the property is liable.

In the absence of fraud and collusion between the creditor and the husband, or some other circumstances giving to the wife peculiar equities, those debts are binding on both husband and wife, to the extent of their property, thus making his acts, agreements and promises in this regard, alike obligatory upon both of them. The fact that the form of the debt is changed from an account to a note of the husband does not make any difference as to the wife's liability, unless the creditor makes an agreement that the husband's note is taken as a payment of the account. This law does not take away the right of the husband to be at the head of the family, and to manage his affairs to the best of his judgment and discretion. The wife, as a general rule, must be controlled by his contracts in this regard; so the merchant need wait for the consent or the wife before he seus the husband articles for the support of the family. She is entitled to whatever advantage he may obtain from the creditor in the payment of the debt, and must as a general rule be held to the same remedies and defenses. It is indicated in this case that if the wife has no property, and it is so shown at the trial, no judgment can be rendered against her. The court says: "And here we remark that the petition seeks a general judgment against the wife. Nor is it suggested that there is nothing to show that she has property upon which this debt should be charged." This decision implies that if the wife has no property, no judgment can be rendered against her.

..

In order to charge the property of both husband and wife, the articles must not only have been bought for the family use, but actually used in the family. But when one advances money to the husband, which is used for the payment of family expenses, he cannot claim a lien upon the separate property of the wife therefor, where such advances were not made at her request, and there is no assignment of the original account for such

2 Lawrence v. Sinnamon, 24 Iowa, 80. 3 Fitzgerald v. McCarty, 55 Iowa, 702.

It will be noticed that the statute does not say necessary expenses of the family. So the law does not limit the liability of the property of the wife to expenditures for necessary family expenses. It applies to the expenses of the family without limitation or qualification as to kind or amount. What is necessary depends very much upon the wealth, habits and social position of the party. What is a family expense depends upon none of these conditions. Hence, the separate property of the wife is liable for the price agreed to be paid for a piano for the use of the family.8 So a cook-stove and fixtures, when purchased for that use and used at the house, properly come within the meaning of the statute, as clothing, fuel or medicine. The only criterion which the statute furnishes is, was the expenditure a family expense, was it incurred for, on account of, and to be used in the family.

9

The Illinois decision is not so broad as those of Iowa. It is held in Illinois that the words "expenses of the family" mean such expenses as were incurred for, on account of and to be used in the family, and as to what would be included in the term must, within the above limitation, be determined by the circumstances of each case." This decision is qualified by terms not found in the Iowa decisions, though it cites the Iowa doctrine.11 But the article must be used in the family. Provisions and clothing come under expenses of the family.12 But a reaping machine, al

10

4 Sherman v. King, 51 Iowa, 182; Davis v. Ritchey, 55 Iowa, 719.

5 Jones v. Glass, 48 Iowa, 345. 6 Black v. Sippy, 15 Oreg. 574.

7 Watkins v. Mason, 11 Oreg. 72.

8 Smedley v. Felt, 41 Iowa, 588.

9 Finn v. Rose, 12 Iowa, 565.

10 Von Platen v. Krueger, 11 Ill. App. 627.

11 See Smedley v. Felt, 41 Iowa, 588.

12 Hawks v. Urban, 18 Iowa, 83.

13

though it might assist the husband in supporting his family, is not a family expense. In this case the court says: "The expenses of a family are something quite different from whatever may contribute, either remotely or directly, to the support of the family. The merchant purchases goods on credit, and, by selling them at a profit, supports his family; or a farmer purchases cattle on credit, and, by selling them at a profit, contributes to the comfort and support of his family. But the indebtedness so contracted does not, we think, become a family expense." So a breaking plow is not a family expense.14 Attorney's fees and interest are not family expenses. 15 So the expenses incurred in the treatment of an insane wife in a hospital for the insane is not a family expense, within the meaning of the statute.16

The Illinois court says that this language is too broad: "Expenses for the comfort, convenience and welfare of the family." Because, "many expenditures may contribute, directly or indirectly, to the comfort, convenience and welfare of a family, which, in no proper sense can be denominated family expenses. All successful business enterprises of the husband may, and usually do, contribute, both directly and indirectly, to the comfort, convenience and welfare of the family. He thereby obtains the means of supporting them and defraying their expenses. It cannot, however, be said that expenditures in the pursuit of such business enterprises are therefore family expenses. 9917

The cost of an organ, though purchased by the husband for resale, but never actually sold by him, but for some years used in his family, as organs are ordinarily used, is a family expense, for which the property of the wife is chargeable. Where the husband gives his individual note for goods purchased and used as family expenses, the cause of action against the wife is not barred until the cause of action upon the note would be barred as against the husband, and this is so when the

note has been put in judgment against the husband.20

In Alabama all property belonging to the wife's statutory estate is liable for the payment of necessary family expenses,21 whether held by legal or equitable title.22 In Mississippi, under the code, the separate estate of a married woman is liable for family supplies and necessaries, but it is essential that her consent should be shown.34 In North Carolina the wife's separate estate is liable "for her necessary personal expenses or the support of the family."25 But her separate estate is not liable for goods supplied to enable her to keep a boarding-house, because this is not within the meaning of the code, though the family be supported from the profits of the business. 26

27

At common law a married woman cannot bind herself personally, and hence, her contract will not be enforced against her in personam, but equity will so far recognize it as to make it bind her separate estate, and will proceed in rem against it; such estate being regarded as a sort of artificial person created by the ourts of equity, is the debtor and liable to her engagement." Lord Thurlow declared that he knew of no instance in which a contract of a feme covert had been held to warrant a personal decree against her, and that the only result of an action against her could be "to fetch forth her separate property and make it liable to her engagements."'26 At law a married woman cannot bind herself personally, and a court of equity has no power to enforce a contract against her in personam; but if she has separate property, the court may proceed in rem against it.29 And it is a fallacy to suppose that a married woman is a debtor at law, because she is liable to have proceedings taken against her to obtain satisfaction of a debt out of her separate estate; for that, "it is not the woman, as a woman, who becomes the debtor, but her engagement has made her property, which