REPORTED CASES.

MARRIED WOMAN-SEPARATE PROPERTY-PURCHASE ON CREDIT. LIENBACH V. TEMPLIN.

(Supreme Court Pennsylvania.. May 26, 1884.)

Goods purchased by a married woman on credit are not separate property; her credit is nothing in the eye of the law.

A married woman cannot acquire title to any property or business upon the credit of its after production.

Where a wife claims property as againt her husband's creditors, she must show affirmatively, by clear and full proof, that she paid for it with her own separate funds.

Error to the Court of Common Pleas of Berks county.

The facts are sufficiently stated in the following extract from the charge of the court below:

"The evidence discloses the fact that in 1877 Levi Templin was indebted to Amos Rothermel, and other persons, perhaps. and he at once informs Amos Rothermel that he cannot any longer continue his business, or rather that he cannot meet the payment of his notes. After some consultation together, certain of his property, which had been seized upon by the sheriff, is appraised by two persons, and Amos Rothermel agrees to purchase property for the amount of his two notes. one of $450 and the other of $315. The property which appears in this bill of sale-a schedule is added to itseems to have been transferred. It will be for the jury to say whether possession passed over into the hands of Amos Rothermel or not.

"It was sworn to by him that he got possession of this property one night, and sometime during the following forenoon the property was sold to Levina Templin, and she agreed to pay a certain sum of money. According to the agreement she was to pay that sum at the rate of $50 per month. This amount which she agreed to pay was paid. and the last payment was made on the 14th of February. 1879. It it claimed by the plaintiff that she then became the owner of the property contained in the bill of sale.

After this bill of sale had been made, the evidence discloses further, that Levi Templin iade an assignment for the benefit of creditors being the owner of household furniture and also of some real estate, which passed

into the hands of his assignee. He made claim for the benefit of the $300, which the laws permit an insolvent debtor to make. The property in the house-the household goods-was appraised at the sum of about $111, and the balance to make up the $300 was paid to him in money out of the sale of real estate. Levi Templin says, as well as his wife, that this property, and this money, after he obtained possession of it, was by him given to his wife." Opinion by CLARK, J.

The Act of 1848 provides in very clear terms that property of whatever kind or nature, which shall accrue to a married woman during coverture, "shall be" owned and enjoyed by her as her own separate property, "and shall not be subject to levy and execution for the debts and liabilities of her husband." It is her "property" only, however, that the Legislature intended to protect; her earnings, her efforts and her credit are her husband's since the Act of 1848 as before. What she may be said to acquire, as the result of her skill and industry, on her merely personal credit, accrues to the husband, and. as to the creditors, is to be taken as his: Raybold v. Raybold, 8 Har. 311; Bucher v. Ream, 18 P. F. S. 420. Goods purchased by a married woman on her own credit are not her separate property: Robinson v. Wallace, 3 Wr. 133; her credit is nothing in the eyes of the law; when she does contract, the law esteems her the agent of her husband: Keugh v. Jones, 8 Casey, 432; Hollowell v. Horter, 11 Casey, 375. A married woman must have a separate estate to protect her purchase upon credit. An estate available and proportionate to the credit it supports. The purchase must in fact be made, not upon her credit, but upon the credit of her separate estate; upon her ability to pay out of her own funds: Gault v. Sylvis, 8 Wright, 307.

estate, real or personal, The title to land gives labor may have been

The ownership of the corpus of an gives title to its incomes and profits. title to its products, no matter whose expended in the production. Rush v. Voight, 5 P. F. S. 442; Mussel v. Gardner, 16 P. F. S. 247. But a married woman cannot acquire title to land upon the credit of its afterproduction. Nor to any property or business upon its prospective profits. The production and profits are, in general,

the result of the labor of the husband and wife, or their children, and whilst creditors have no claim on the husband's labor or that of his family, as such, yet, when that labor acquires title to property, they may have a claim upon the property thus acquired. When the estate is hers, the production is hers; the labor expended in realizing incomes cannot effect the title to either.

It is admitted that Mrs. Templin had no separate estate; the purchase of the property was made on her credit alone; the business was conducted with the property thus purchased, and the property was paid for out of the earnings of the business. We may accept the verdict of the jury, under the charge of the court, as a finding that the transaction was bona fide, and was not a device to save it from Templin's creditors; but, assuming this, the property was not the property of Mrs. Templin; her credit, under the circumstances, was her husband's credit, and the earnings of the business was the husband's money; it follows, that the property involved in the transaction of 18th of December, 1877, was, as respects his creditors, the husband's property.

It was, of course, competent for Templin, so far as the transaction affected himself only, to place the title and ownership in his wife, not only of that embraced in the agreement of 18th of December, 1878, but of that also which he had taken under the exemption law. A husband may freely bestow his goods upon his wife or upon any other person, but he must be just to his creditors before he can afford to be generous to his friends. The rights of creditors rise superior to claims, which are founded in no valuable consideration.

Nor can we discover how the petition and decree of 10th of August, 1880, which secured to Mrs. Templin the rights of a feme sole trader, could, without more, have any effect upon the determination of this case. It is true that a portion of the property embraced in the sheriff's levy was purchased after the date of this decree; but with whose funds was the purchase made? It has not been shown that the purchase was made with the moneys of the wife; where a wife claims property, as against her husband's creditors, she must show affirmatively, by clear and full proof, that she paid for it

with her own separate funds: Keeny v. Good, 9 Harris, 355; Gamber v. Gamber, 6 Harris, 366. She must make it clearly appear that the means of acquisition were her own, independently of her husband: Auble, Admin'rs, v. Mason, 11 Cas. 262.

The fact that Mrs. Templin, at the time of the purchase of the cattle and hogs, possessed the privileges and exercised ths rights of a feme sole trader, does not dispense with the production of this measure of proof. It was not the intention of the Legislature to dispense with the presumptious which ordinarily and of necessity arise in favor of creditors in transactions between husband and wife, affecting the ownership of property in the wife's name. The Act of 3d of April 1872, P. L. 35, provides merely that the separate earnings of any married woman, however realized, shall accrue to and inure to her separate benefit and use, and be under her exclusive control, as if she were feme sole, and not be liable to any claim of the husband or his creditor's. The Act further provides: "That in any suit at law, or in equity, in which the ownership of such property. shall be in dispute, the person claiming such property, under this Act, shall be compelled, in the first instance, to show title and ownership in the same."

In this case no such proof was made; the purchase money was supplied from the earnings of the business; but the business, as we have already seen, belonged to the husband, and its earnings were his.

For the reason stated, therefore, we are of opinion that the several assignments of error are sustained, and the

Judgment is reversed, and a venire facias de novo awarded.

DIGEST OF CASES.

Appeal-Flight from Jurisdiction—Dismissal.--When a person who has been convicted of a criminal offense takes an appeal to an appellate court, and pending such appeal breaks jail and withdraws himself from the jurisdiction of the court, the appeal will be dismissed on motion and not heard unless such fugitive again submits himself to the jurisdiction of the court by returning to the custody of the proper officer of the law. Warwick v. State. Sup. Ct., Alb., 19 Cent. Law Tourna!, 322.

Assumpsit-Money had and Received—Identity.—Money left in trust with a person to make certain payments and misapplied cannot be recovered from the latter's assignee or a third party, unless the same can be substantially identified in the hands of the person charged with holding it. Neely v. Rood. Sup. Ct. Mich. 18 Rep. 396.

Common Carriers—Bill of Lading-Negligence-Release of Responsibility against Insurable Damage--Public Policy--Implied Release-The Objec tion Defined.-If a condition in a bill of lading, relieving the carrier from liability for "any damage that can be insured against," to receive an unqualified construction, and be deemed to include a loss arising from the negligence of the carrier, it is obnoxious to public policy, and therefore void. Public policy demands that the right of the shipper to absolute security against the negligence of the carrier, and of all persons engaged in performing his duty, shall not be taken away by any arrangement or agreement between the parties to the service. The same reasons that forbid the recognition of an express contract between the carrier and the shipper, exempting the former from liability for his own negligence, forbid a contract beetween them which is designed to work the same result. That which cannot be done directly, will not be permitted to be done indirectly. The objection to a condition releasing the carrier from liability for an insurable damage lies in its tendency to impose upon the shipper the burden of protecting himself against a risk which it is the carrier's duty to assume, and which the law will not permit him to evade. It is better that the carrier should be paid a higher freight, consequent upon his insuring himself against damage to which his own negligence may contribute, than that he should be given immunity by the shipper. The Hadji. U. S. C. C. S. D. N. Y. 20 Fed. Rep., 875.

Fire Insurance-Change of Title.-Where one of the provisions of an insurance policy given to a partnership is that "if the title of the property is transferred, incumbered or changed, the policy shall be void," a dissolution of the partnership, and a sale by one partner to the other of his interest, is a change of title to the property, and will render the policy void. Citing and discussing Hoffman v. Ætna Ins. Co., 32 N. Y. 405; Dermani v. Ins. Co., 28 La. Ann., 69; Pierce v. 17.3. Co., 50 N. H., 297; Burnett v. Ins. Co., 46 Ala., 11; and West v. Ins. Co., 27 Ohio St., 1; Cowan v. State Ins. Co., 40 Iowa, 551; Keeler v. Niagara Fire Ins. Co., 16 Wis., 523; Hartford Fire Ins. Co. v. Ross, 23 Ind., 180; Dix v. Mercantile Ins. Cb., 22 III., 272; Wood v. Rutland Ins. Co., 31 Vt., 552. Hathaway v. State Ins. Co. Iowa S. C. July 22, 1884.

Husband and Wife-Desertion-Offer of Return.-A wife's desertion of her husband is cured, if she,- before the expiration of the statutory period required to make the desertion a cause for divorce, and when in the vicinity of her husband's home, offers to go back and return to the performance of her marital duties and he refuses to receive her. Under such circumstances an actual physical return is not necessary. From the date of his refusal the husband is deemed to have deserted her. Andrew v. Runyon, Sup. Ct., Cal. 4 West Coast Rep., 81.