boundary between the states of South Carolina and Georgia to the city of Augusta, and, with the assent of the railroads in this state, to join its track to theirs, did not confer upon it the power to run its road through the city of Augusta so as to connect with another railroad. In order to do this express authority must be granted by the legislature: City Council v. Port Royal and Augusta Railway, 71 or 72 Ga.

REMOVAL OF CAUSES.

Objection that the Application was too late may be Waived.-Sect. 3 of the Act of March 3, 1875, prescribing the time when a petition for removal may be filed, &c., is not jurisdictional but modal and formal; application in due time and the proffer of a proper bond, as required by it, may be waived, either expressly or by implication; and the party at whose instance a removal has been effected, is estopped from objecting that the application therefor was too late; Ayers v. Watson, S. C. U. S., Oct. Term 1884.

SLANDER.

Testimony of Witness-Privileged Communication.-In an action of slander the petition charge defendant with having spoken certain false, malicious and defamatory words concerning the plaintiff, while giving his testimony before a court having jurisdiction of the subject-matter then on trial, a answer to interrogatories put to him as such witness. For aught that is stated in the petition, these answers were relative to the issue then on trial, and were honestly believed to be true, though in fact they were untrue. Upon demurrer to the petition, held, 1st. That the court will presume, in the absence of an averment to the contrary, that the answers of the witness were within the scope of inquiry pertinent to the issue then on trial, and that they were believed by the witness to be true. 2d. That upon the statements of the petition and the presumptions arising therefrom, the witness was absolutely privileged, and he is not liable to a civil action for so testifying: Liles v. Gaston, 41 or 42 Ohio St.

SPECIFIC PERFORMANCE.

Contempt Enforcement of Decree.-When, on decree for specific performance, the defendant is in contempt for refusal to perform, the court may give it effect by establishing the contract as if it had been executed; and by enjoining and restraining the defendant from denying its execution and delivery; and from defending himself in any action by denying its execution: Wharton v. Stoutenburgh, 39 N. J. Eq.

Such substituted decree, made while the defendant is in contempt, may be without notice, but he has the right of appeal therefrom: ld. STATUTE. See Constitutional Law.

Construction-Punctuation.-In construing a statute, punctuation may aid, but does not control, unless other means fail; and in rendering the meaning of a statute, punctuation may be changed or disregarded: Albright v. Payne, 41 or 42 Ohio St.

Judicial cognisance of Local Law.-It is the duty of the courts to take judicial cognisance of public local laws, within the sphere of their operation, equally with public general laws: Slymer v. Maryland, 62 Md.

STREET. See Municipal Corporation.

SUNDAY.

Publication of Ordinance m.-Publication of the preliminary and other ordinances, with respect to a street improvement, in a newspaper of general circulation, in accordance with the terms of the statute, is a valid and legal publication, although such newspaper is only published on Sunday Hastings v. City of Columbus, 41 or 42 Ohio St.

TAX AND TAXATION. See Municipal Corporation; National Bank.
TRUST. See Will.

TRUSTEES.

Orphans' Court-Opening Account.-The orphans' court has the power to open a decree settling an intermediate account of trustees, in which it appears that commissions were allowed in excess of the sum fixed by the statute: Jackson v. Reynolds, 39 N. J. Eq.

USURY.

Suit by Principal after Payment of Debt.-Where a principal debtor conveyed land to his surety, to indemnify him against loss, and, after the debt had been reduced to judgment and a levy made, the surety paid off the execution, and thereupon brought ejectment against his principal to recover the land, it was no defence to this action to allege that there was usury in the contract between the principal and the original creditors. The deed from the principal to the surety was not tainted with usury in the contract between the principal and his creditors; and as between them, the judgment fixed the indebtedness: Maples v. Cox, 71 or 72 Ga.

WILL.

Devise-Condition as to Membership of Religious Order-Public Policy-Trust-Charity-Municipal Corporation-Equity.-It is not against public policy to make a devise or bequest dependent upon the condition that the legatee should withdraw from the priesthood, or membership of any order or society connected with the Roman Catholic Church, or refrain from forming any such connection; and testator has the right to make the enjoyment of his bounty dependent upon such condition attached to it: Barnum v. Mayor, &c., of Baltimore, 62 Md. Under its charter, the city of Baltimore has the power to accept and hold in trust, any property for educational and charitable purposes: Id. Where property is held by a municipal corporation in trust, or where the trust reposed in the corporation is for a charity within the scope of its duties, à court of chancery will prevent the misapplication of the trust funds, and compel the execution of the trust. And this jurisdiction is not founded upon the statute of 43 Elizabeth, ch. 4, but is a part of the original inherent jurisdiction of the court of chancery over the subject of trusts: Id.

THE

AMERICAN LAW REGISTER.

JUNE 1885.

MARRIED WOMEN TRADERS.

THE discussion of this subject will fall under two main heads, first, the sources of married women's capacity to trade, how far they could trade at common law and in equity, and the effect of modern statutes; and second, the incidents of married women's capacity to trade their rights, powers, obligations and disabilities, when engaged in trade under some common law, equitable or statutory capacity. Many points not directly involved must be referred to for the purpose of argument and illustration, and on such points the cases are not collected in this paper.

I. SOURCES OF MARRIED WOMEN'S CAPACITY TO TRADE. Sect. 1. General view.-(a). At Common Law generally, a married woman could make no contract whatever; Norris v. Lantz, 18 Md. 260, 269; all her time and labor belonged to her husband (Seitz v. Mitchell, 94 U. S. 580, 584), as did all the present enjoyment of her property. See Mann's Appeal, 50 Penn. St. 375, 381. She had in fact no legal existence apart from her husband: White v. Wager, 25 N. Y. 325, 328; therefore she could not trade at all: Carey v. Burruss, 20 W. Va. 571, 575; 43 Am. Rep. 790; see Bradstreet v. Baer, 41 Md. 19, 23; Netterville v. Barber, 52 Miss. 168, 171; McKinnon v. McDonald, 4 Jones' Eq. 1. If a female trader married, the trade became her husband's (Ashworth V. Outram, L. R., 5 Ch. Div. 923, 929), and if she had been trading as partner, the partnership was dissolved: Alexander v. Morgan, 31 Ohio St. 546, 550. But when owing to her husband's VOL. XXXIII.-45 (353)

abandonment of the state, &c., she had the capacities of a feme sole (see Stewart Mar. & Div., sect. 177), and in some places by custom (Carey v. Burruss, 20 W. Va. 571, 575, 43 Am. Rep. 790), a married woman could trade as if unmarried.

(b). Wife's Earnings.-As a married woman could not contract at all by the common law, she could not enter into any kind of engagement or employment on her own account, but all her time, services, wages and earnings of every kind, belonged to her husband: Cecil v. Juxon, 1 Atk. 278, 279; Glenn v. Johnson, 18 Wall. 476, 478; McLemore v. Pinkston, 31 Ala. 267, 270; Hinman v. Parkis, 33 Conn. 188, 197; Hazelbaker v. Goodfellow, 64 Ill. 238, 241; Cranor v. Winters, 75 Ind. 301, 303; Glover v. Alcott, 11 Mich. 471, 482; Raybold v. Raybold, 20 Penn. St. 308, 311; Hallowell v. Horter, 35 Id. 375, 380. Still her husband could agree that she should have her earnings, just as he could invest her with any property of his, except as against his creditors, and his agreement would be enforced in equity: McLemore v. Pinkston, 31 Ala. 267, 269; Peterson v. Mulford, 36 N. J. L. 482, 487; Hoyt v. White, 46 N. H. 45, 47; Elliott v. Bentley, 17 Wis. 591, 596. His agreement, however, could give her no personal capacity, but only the right, in his place and stead, to collect and keep the wages or rewards of her labors: Uhrig v. Horstman, 8 Bush 172, 177; Stewart Mar & Div., sect. 181. So by statute, in most states, the wife's earnings are secured to her separate use: see Martin v. Robson, 65 Ill. 129, 135, 16 Am. Rep. 578. These statutes were passed to protect wives from shiftless, improvident and dissipated husbands (Youngworth v. Jewell, 15 Nev. 45, 47), and were in form the earliest of the statutes relating to the trade of married

women.

(e) The Increase of Wives' Separate Property.-Although at common law all the interest, profits, rents and increase of a married woman's property vested in the husband just as the property itself did, except that the rents and profits of real estate vested in him as personalty, she had her separate estate first in equity and then by statute, and the increase of such estate was also separate property: Gore v. Knight, 2 Vern. 535; Barrack v. McCulloch, 3 Kay & J. 110, 119; Hoot v. Sorrell, 11 Ala. 386, 399, 404; Sanford v. Atwood, 44 Conn. 141, 143; Bongard v. Core, 82 Ill. 19, 21; Stout v. Perry, 70 Ind. 501, 504; Russell v. Long, 52 Iowa 250, 252; Hanson v. Millett, 55 Me. 184, 189; Hill v.

Chambers, 30 Mich. 422, 429; Williams v. MeGrade, 13 Minn. 46, 52; Hutchins v. Colby, 43 N. H. 159, 161; Knapp v. Smith, 27 N. Y. 280; Holcomb v. Meadville, 92 Penn. St. 338, 343; Nelson v. Hollins, 9 Baxt. 553, 554; Braden v. Gose, 57 Tex. 37, 40; Dayton v. Walsh, 47 Wis. 113, 118; and therefore the products of all investments or uses of her separate property, though such products result in part from her own efforts and from the labor, skill and knowledge of her husband: Aldridge v. Muirhead, 101 U. S. 397, 399; Stout v. Terry, 70 Ind. 501, 504; Cooper v. Ham, 49 Id. 393, 400; Langford v. Grierson, 5 Bradf. 361, 365; Russell v. Long, 52 Iowa 250, 252; Miller v. Peck, 18 W. Va. 75, 79-97. In a sense, therefore, as will be shown below, she can trade with her separate property.

(d). Summary of Sources.-So that a married woman may be found on her own account earning money, trading or in business— the meaning of these words will be defined below-by virtue (1) of her right to her earnings, depending on her husband's consent or on statute; or (2) of her ownership of equitable or statutory separate property; or (3) of her capacities as a feme sole, due to the peculiar conduct of her husband or to statute; or (4) of her capacity to trade, due to custom or to statute.

Sect. 2. Definitions.-Earnings, Trade, Business, etc.-Although the distinction between personal earnings and the increase of property is quite clear (see Mitchell v. Sawyer, 21 Iowa 582, 583; also, supra), and for this reason, as hereinafter shown, married women's separate property acts do not destroy a husband's rights to his wife's personal services: Glover v. Alcott, 11 Mich. 470, 480; it is very hard to draw any line between personal earnings and the profits of trade in which property is used. See Haight v. McVeagh, 69 Ill. 624, 629; Dayton v. Walsh, 46 Wis. 113, 120. The terms used in the books in connection with married women's trade are not sharply defined, and their meaning has given rise to considerable discussion.

(a). Earnings. "Earnings" are what is earned, gained or merited by labor, services or performances, wages or reward: Dayton v. Walsh, 47 Wis. 113, 120; and the earnings secured to a married woman by a statute are not confined to the results of manual labor-to wages for washing or sewing-but include the products of trade also: Haight v. Mc Veagh, 69 Ill. 624, 628; and the stock in trade of a married woman, bought with her earn