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SECTION II.

OF MARRIED WOMEN.

Br the common law of England, which is our common law, husband and wife are one person, and the husband is that person; for most purposes the wife's personal existence being merged in that of the husband. This rule is qualified somewhat, in this country, by adjudication; more, however, by recent statutes in several of the States. (v) Indeed, the whole law of husband and wife may be said to be in a transition state in this country. The reasons for the old law, most of which depended upon the feudal system, having disappeared, there seems everywhere a willingness, if not an effort, to introduce new principles, better suited to our own times and circumstances. As yet, however, the common law may be said to be generally in force, although everywhere with some qualification.

A married woman cannot legally make, indorse, or accept notes or bills, as acting for herself. (w) Nor does a divorce a mensa et thoro give her this power at common law; (x) but a divorce a vinculo wholly annuls the marriage, and all its incidents and disabilities. Nor has her signature any more force because she represented herself to be unmarried.(y) Nor if she has eloped, and lives in notorious adultery.(z) Nor if she lives apart from her husband, and has a separate maintenance secured to her. (a) And in order to create a charge upon the separate estate of a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of the estate itself. Therefore, where ?

(v) See 1 Parsons on Cont. 306.

(w) Barlow v. Bishop, 1 East, 432, 3 Esp. 266; Cotes v. Davis, 1 Camp. 485; Coon v. Brook, 21 Barb. 546; Howe v. Wildes, 34 Maine, 566; Connor v. Martin, 1 Stra. 516, s. c. cited in Rawlinson v. Stone, 3 Wilson, 5.

(x) Lewis v. Lee, 3 B. & C. 291. It is otherwise in Massachusetts. Dean v. Rich. mond, 5 Pick. 461.

(y) Cannam v. Farmer, 3 Exch. 698; Lowell v. Daniels, 2 Gray, 161.

(z) Hatchett v. Baddeley, 2 W. Bl 1079.

(a) Marshall v. Rutton, 8 T. R 545; Hyde v. Price, 3 Ves. 437; Lean v. Schue, 2 W. Bl. 1195.

married woman signed a promissory note as surety for her husband, and intended to charge her separate estate, but the note contained no words to this effect, it was held that the estate was not liable.(b) Unlike an infant's, her promissory note or bill, made during coverture, is so utterly void, that her promise to pay it, made after her disability has terminated by her husband's death, will not operate as a confirmation, nor have any force, unless made upon a new consideration, so as to be binding as an independent promise. (c) Nor can she, like

an infant, convey a good title to a third party by her indorsement.(d) But if she gave a bill or note for money lent while married, and then procured a separate estate, and after her husband's death promised to pay it, it is said this promise will bind her and her.executors. (e) A second indorser cannot in an action against him on the bill dispute the legal capacity of the payee to indorse, on the ground that she was a married woman.(ƒ)

(b) Yale v. Dederer, 22 N. Y. 450, 21 Barb. 286. See Bullpin v. Clarke, 17 Ves. 365; Stuart v. Kirkwall, 3 Mad. 387.

(c) Loyd v. Lee, 1 Stra 94; Vance v. Wells, 6 Ala. 737, 8 Ala. 399; Littlefield v. Shee, 2 B. & Ad. 811; Meyer v. Haworth, 8 A. & E. 467; Eastwood v. Kenyon, 11 id. 438; Watkins v. Halstead, 2 Sandf. 311. But see Coward v. Hughes, 1 Kay & J. 443; Franklin v. Beatty, 27 Missis. 347.

(d) Thus, in Barlow v. Bishop. 3 Esp. 266, 1 East, 432, where a promissory note was given by the defendant to a married woman, whom he knew to be such, with intent that she should indorse it to the plaintiff in payment of a debt which she had contracted to him, in the course of carrying on a trade on her own account by the consent of her husband, it was held, that the property in the note vested in the husband by the delivery to the wife, and that no interest passed by her indorsement in her own name to the plaintiff. And in Savage v. King, 17 Maine, 301, it was held, that a note made payable to a married woman is in law a note to the husband, and becomes irstantly his property; and her indorsement transfers no property in the note So where an action was brought by the indorsee of promissory note, payable to Susan Connor or her order, and given to her before marriage; which note, after her marriage and while covert, she indorsed to the plaintiff; the court were of opinion that the feme covert could not assign the note, because by act of law it became the sole right and property of her husband. Connor v. Martin, 1 Stra. 516, s. c. cited in Rawlinson v. Stone, 3 Wilson, 5. See also Shuttlesworth v. Noyes, 8 Mass. 229; Commonwealth v. Manley, 12 Pick. 73; Cotes v. Davis, 1 Camp. 485. It will be seen, therefore, that there are two reasons why the indorsement of a married woman is void: 1st, Because all contracts and conveyances of a married woman are void on account of her incapacity; 2d, Because a note given to a married woman does not belong to her, but to her husband. But see infra, p. 87, note k, for the limitations to this doctrine.

(e) Lee v. Muggeridge, 5 Taunt. 36; Vance v. Wells, 8 Ala. 399. See Franklin v. Beatty, 27 Missis 347. See 1 Parsons on Cont. 359–361.

f) Prescott Bank v. Caverly, 7 Gray, 217.

A married woman may, however, in this, as in most transactions, act as agent for another, and so she may act for her husband. In that case she should sign, "A (the husband) by B. (the wife)." But if she sign "B (the wife) for A (the husband)," this would undoubtedly be sufficient. And if she merely signed her husband's name, without adding anything to show that it was signed by an agent, perhaps the husband would be bound.(g) But if she merely sign her own name, without anything to indicate that she is acting in behalf of her husband, this presents a still more doubtful question. Indeed, we are not aware that it has ever been held, in the absence of any subsequent ratification, or other special circumstances, that such a signature would bind the husband. Where a wife indorsed a note in this form, it was held that it did not pass the husband's interest, although the note was in form payable to the wife. (h) And where a husband authorized his wife to purchase a piece of land and "give notes for the purchase-money," and the wife purchased the land and gave a note for a part of the purchasemoney, signed with her own name merely, it was held that the husband was not liable on the note. (i)

(g) We are not aware that this point has ever been expressly decided. The recent case of Wood v. Goodridge, 6 Cush. 117, contains some well-considered dicta against the validity of such a signature. The precise question was raised in Shaw v. Emery, 38 Maine, 484; but it was unnecessary to decide it, there having been a subsequent ratification by the husband. See 1 Parsons on Cont. 95-97. We shall advert to this point again when we come to speak of agents.

(h) Barlow". Bishop, 1 East, 432. This was an action against the maker of a promissory note, made payable to one Ann Parry or order, and by her indorsed to the plaintiff. It appeared that Ann Parry was a married woman, carrying on trade at Birmingham in her own name, with the consent of her husband; and that the plaintiff, who lived in London, had furnished her with goods to the amount of the note, dealing with her as a feme sole; that the plaintiff, after much delay, having pressed for pay. ment, the defendant, with a view to serve Mrs. Parry, gave her the note in question with knowledge of her being married, and with a view that she should pay it over to the plaintiff, in order to stop his proceedings against her, which she did by indorsing it over to him. It was held, that the plaintiff could not recover. Lord Kenyon said: "It is clear that the delivery of the note to the wife vested the interest in her husband; and as he permitted her to carry on trade on her own account, and this was a transaction in the course of that trade, if she had indorsed the note in the name of her husband, I am not prepared to say that that would not have availed; as many acts of this nature may be done by a power of attorney; and the jury might have presumed what was neces sary in favor of an authority from her husband for this purpose. But the indorsement being in her own name, it is quite impossible to say that she could pass away the interest of her husband by it."

(i) Minard v. Mead, 7 Wend. 68

Sutherland, J., in delivering the opinion of the

But it is a familiar principle, that a man, either in his general dealings or in a particular transaction, may adopt whatever name he chooses, and he will be bound accordingly. If, therefore, a husband should put his wife's name to a note given on his own account, he would be considered as having adopted his wife's name pro hac vice, and would be liable on the note. Upon the same principle, if the husband clearly authorizes his wife to give notes on his account and sign her own name, and she does so, he will be liable.(j) Therefore, if the wife executes a note for her husband, in his presence, and signs her own name merely, with his knowledge and consent, he will be bound.(k) So, if the

court, said: "The note was not so executed as to bind the defendant. It was signed with the name of the wife, without any reference whatever, either in the body or signature, to the defendant, and without purporting to be signed by her as the agent of, or on behalf of, her husband. Nothing but proof of a special authority from the husband to the wife to sign in that manner would make the instrument the note of her husband. Her authority as agent merely was to give a note in the name of her husband. If an agent signs his own name, instead of the name of his principal, as a general rule tho principal will not be bound."

(j) Cotes v. Davis, 1 Camp. 485. This was an action by the indorsee against the maker of a promissory note, payable to "Mrs. Carter or order," and indorsed by her in her own name. Mrs. Carter was a married woman. It was proved that when the note was presented for payment by a notary, with the indorsement upon it, the defendant said it should be paid in a few days; and that he afterwards asked for further time, when the action was commenced and the declaration had been delivered. Upon these facts, Garrow, for the defendant, contended that no title to the note passed by the indorsement. But Lord Ellenborough said: "The husband may authorize the wife to indorse bills of exchange or promissory notes as his agent; and, after the acknowledgments and promises of the defendant in this case, it may reasonably be presumed against him, that Mrs. Carter had authority from her husband to indorse the note in question." Garrow: "But in that case, the indorsement ought to have been in the name of the husband." Lord Ellenborough: "We may fairly carry the presumption one step further, and presume that the husband authorized her to indorse notes in the name by which she herself passed in the world. The defendant is now estopped from contesting her authority for this indorsement." And see Prestwick v. Marshall, 7 Bing. 565; Prince v. Brunatte, 1 Bing. N. C. 435; Lindus v. Bradwell, 5 C. B. 583; Stevens v. Beals, 10 Cush. 291 (disapproving Savage v. King, 17 Maine, 301); Hancock Bank v. Joy, 41 Maine, 568.

(k) Prestwick v. Marshall, 7 Bing. 565. This was an action on a bill of exchange drawn by Lydia Bickerstaff, accepted by the defendant, and indorsed by Lydia to the plaintiff. It appeared that the drawer of the bill was a married woman, and kept a school, at which the defendant had placed his daughter. The bill in question was accepted by the defendant, at the request of Mrs. Bickerstaff's husband, for the expense of his daughter's education. The bill was drawn by the husband, and signed and indorsed by the wife in his presence; and it was put in that form at the defendant's request, he considering that his engagement was with the wife rather than the husband. The bill was afterwards negotiated to the plaintiff by the husband. The court held, VOL. I.-F

wife signs in this form, and afterwards the husband, upon being informed of it, ratifies and confirms the act, this will be equiva lent to a prior authority to sign in this form, and will bind him.() And it should seem, that if the husband carries on

that the plaintiff was entitled to recover. The same point was decided in Menkens v Heringhi, 17 Misso. 297.

(1) This was expressly decided, after much consideration, in Lindus v. Bradwell, 5 C. B. 583. There a bill of exchange addressed to the defendant by the name of "William Bradwell" (his true name being William David Bradwell) was accepted by his wife, by writing across it her own name, "Mary Bradwell." There was no evidence of any express authority in the wife so to accept the bill; but on its being presented to the husband after it had become due, he said he knew all about it, that the bill was a millinery bill (for which the husband appeared to be liable), and that he would pay it very shortly. Held, that he was liable as acceptor. Maule, J. said: "I think the defendant is bound by the acceptance of his wife. The evidence of Henry Lindus shows that the defendant represented himself to be a person bound by the bill, after his attention had been particularly called to it. He says he knows all about it, that it is accepted by his wife, and mentions the particular transaction out of which it grew, and promises to pay it shortly. The irresistible inference from this is, that he considers the bill as one that he is liable to pay. He, in effect, says that his wife was authorized by him to accept this particular bill in the way she did. At any rate, the conversation fairly admits of that inference. He sees that his wife has written her own name across the bill, and recognizes it as done by his authority. The question is, whether it is competent to a man to give his wife such an authority. Cotes v. Davis, a case that has been since recognized, seems to be a strong authority upon the subject. But, upon principle, it seems to me that there is no objection to the plaintiff's recovering upon this bill. The acceptance is in writing, and therefore satisfies the statute 1 & 2 Geo. 4, c. 78. If a man says to his wife, Accept such a bill drawn upon me, in your name, unless he intends to be bound by that, he means nothing. Unless such an acceptance operates to charge him, it has no operation at all. The defendant clearly meant to bind himself, if, in point of law, he could do so It is said that a drawee cannot bind himself otherwise than by writing his name on the bill. But suppose the drawee, with his own hand, accepts the bill by writing another name across it, will he not be liable? Here the defendant has, by the hand of his wife, written Mary Bradwell' on the bill. If he had done that with his own hand, it clearly would have been his own acceptance; and I know of no rule of law that makes such an authority void It is difficult to say, that, if the defendant had written his true name, William David Bradwell, across the bill, that would not have been an acceptance that would bind him; and yet, inasmuch as that would not be the name in which it was addressed, if the argument of the defendant's counsel is well founded, he would not be liable. I admit that nobody but the defendant could accept this bill, so as to charge him; but he has accepted it by the hand and in the name of his wife; and that, I think, is a sufficient acceptance to bind him." Cresswell, J. said: "The jury must be assumed to have found here, that the wife had authority to accept this bill; and as the defendant, by his subsequent conduct, showed that he was satisfied with the mode in which the authority had been exercised, we must likewise assume that the jury also found that he authorized her to bind him in that particular way. It is by no means an unusual thing for a bill of exchange to be drawn upon persons trading under a style that corresponds with the name of no one member of the existing firm; and yet bills so drawn and so nccepted are perfectly

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