The Corn Exchange Insurance Company v. Babcock.

a lien upon that estate. But, on the other hand, that if the demand against her arise merely from an implied undertaking, then it cannot be executed out of such separate estate."

In Murray v. Beebe, 4 Simons, 82, it was held, that, where a married woman, having separate property, living apart from her husband, employed the plaintiffs as her solicitors, and promised them, by letter, that she would pay their bills, but did not refer to her separate property, her separate property was liable to pay the bills. The bill filed to enforce payment was demurred to, on the ground that the general engagement of a married woman does not affect her separate property, and that the letters contained no reference to her separate property. The demurrer was overruled.

In Owens v. Dickinson, 1 Craig & Ph. 48, the same rule is laid down, and it is held by Lord Brougham that the doctrine is applicable to all debts, whether written or verbal. The very recent case of Mrs. Matthewmans, Eng. Law Rep., 3 Eq. Cas. 781, 1866, and of Butler v. Crumpton, 7 ib. 16, 1869, reiterate the same doctrine. They were cases under the constitution acts, where the separate estate of the married woman was charged as a contributory, upon the ground that, in giving the order for the purchase of the stock, she had intended to charge her separate estate, and had done so. In neither case was there any description of the property intended to be charged.

In Shattock v. Shattock, 2 id. 182, 189, Lord ROMILLY lays down in substance the same doctrine, but insists upon the long contested proposition that the power of charging the estate arises from the power of appointment or disposition, and not the power to contract.

In McHenry v. Davies, 10 id. 88, Equity series, August, 1870, Lord ROMILLY held, where a married woman living abroad, alone, under circumstances which led to the belief that she was a feme sole, indorsed a bill of exchange and drew a check on her London bankers, for the purpose of enabling T., who acted as her agent, to raise money, the bill and check being cashed by a banker in Paris and dishonored, that the separate estate of the married woman was liable to make good the amount, and that the equities between herself and T. could not be inquired into.

Among all these cases there is not one that holds, that, where a married woman having separate property incurs a liability, for which she declares at the time of incurring it, and in the instrument by which it is incurred, that her separate estate shall be held, the separate property does not become charged; at least, I may say,

The Corn Exchange Insurance Company v. Babcock.

after diligent examination, that I have met with no such case, either in the English courts or those of the last resort in this state. There are, however, several in which the precise objection has been made and overruled.

There is no more propriety in the principle sought to be sustained than there would be in holding that the promissory note of a male adult must describe the property seized on execution issued on a judgment recovered upon the note. In each case the note or bond creates a binding obligation. The law holds all of the property of the maker or obligor responsible for its satisfaction. The judgment, when recovered, creates the lien. When the proceeding was strictly one in equity, it may have been necessary that the judgment should specify the property against which the process should issue. Under our statutes, the suit, the judgment and the execution were in the ordinary manner of suits at law.

While, as has been seen, there has been some contest on the proposition whether a general engagement would subject the separate property of a married woman to the payment of her debts, the principal controversy has been as to the ground upon which their liability should be placed. On this point there will probably continue to be a difference of opinion. One statute (1860, p. 197) gives to the married woman formal authority to "enter into any contact in reference to the same." It may also well be rested upon the principle of jus disponendi. The law gives the married woman the practical ownership of the property. She has the power of dealing with it at pleasure. She therefore has the power to bind it for the payment of her debts.

Under our decisions the liability arises, ipso facto, where the debt is for the benefit of her estate. Where she incurs liability for another, there is required then the further condition that the intent to make the charge must be declared in the contract creating the indebtedness. Yale v. Dederer, supra. The English authorities do not require the existence of this condition. Her bond, in the ordinary form of a surety for another, will create a charge upon the estate. Authorities supra.

I do not see that the question whether the estate is legal or equitable, or whether it was secured before or after 1848, has any thing to do with the case. Under the English system trustees were not indispensable. The property might be conveyed to the wife directly, and for her separate use. 2 Roper on H. and W. 229. This would

The Corn Exchange Insurance Company v. Babcock.

give her a legal estate. Under our laws the married woman may take "by inheritance, gift, grant, devise or bequest,"-words implying legal estates; and, when she has thus taken, she holds "to her sole and separate use, in the same manner and with the like effect as if she were unmarried." The equitable estate of a feme sole, under the old system, if that was its necessary form, defined the rights of a married woman now having control of a legal estate. Nor do I perceive how the time when she receives the estate can be important, except so far as there may be a claim by the husband or by his creditors, where the marital rights had attached prior to 1848.

Upon the whole case the order of the general term should be reversed, and the judgment of the special term affirmed, with costs

EARL, Com., wrote an opinion reaching the same conclusion, except as to the form of the judgment entered upon the report of the referee.

The other commissioners concurred with HUNT, Com.

INDEX.

ACKNOWLEDGMENT
See DEED, 1.

ACTION.

Bee BAILMENT, 1; BREACH OF PROMISE, 1,2; MALICIOUS PROSECUTION,

ADULTERY.
See DIVORCE, 8.
AGENT.

See COMMON CARRIER, 2, 8; INSURANCE, 9; PRINCIPAL AND AGENT.

APPRAISEMENT.

See LESSOR AND LESSEE, 1.

ASSIGNMENT.

An insolvent debtor made a deed of assignment, wherein it was recited that the
assignor “is indebted to divers persons, etc., and is desirous of providing for
the payment thereof by assignment of all his property." And in the grant-
ing clause the property was described as "all his goods, etc., choses in action
and property of every name and nature whatever belonging to him, and
which are more particularly and fully enumerated in the schedule hereto
annexed, marked schedule A." Held, that the general words of the deed
were limited and controlled by the schedule, and that a sum of money not
named in the schedule did not pass to the assignee under the deed.
Armstrong, 22.

Mims v.

See MORTGAGE, 3.

BAGGAGE.

1. The right of a traveler to recover of a carrier for lost baggage is not limited
to such apparel or other articles as he expects to need or use by the way, but
extends to such baggage as is ordinarily carried by passengers. Dexter v.
The Syracuse, etc., Railroad Co., 527.

1. The plaintiff purchased in New York, and checked over defendants' road, as
baggage, a trunk and contents, consisting of wearing apparel for himself and
wife, articles for members of his family, and cloth for some dresses, including
one for his landlady. The trunk was lost, and in action to recover the value
of it and contents, held, that defendants were liable, except for the cloth pur.
chased for landlady. Ib.

See COMMON CARRIER, 9, 10.

VOL. I.-78