The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1869-05-27

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Nay Term, 1869.
Boyd, Coleman q Graham.J
VS..
! Nithers x Wife.
| This action of assumpsit was brought by
| the plaintiffs against the defendants, to re-
! cover the amount stated to be due upon an
| account current rendered against them. The
| declaration alleges that the wife is possessed
as of her separate property, of plant ton,
etc, that the amount stated TO be due l. for
| advances in cash, made upon the Joint bills
! of defendants, that the cash so received was
! used in the purchase ofhorses, mules, farm
! ing utensils, and other necessaries for the
| plantation of the wife, for necessaries fur
/ Dished for the wife, and her children. also
| tor their education, ETC. and seeks payment
I for the sums so advanced, out of the separ-
| ate property Of the wife. To this declara-
! ton. the defendants have demurred, and in
| sist a. cause of demurrer. that a married wo-
| man cannot bind herself upon q contract
for the loan of money, so as 20 charge her
| separate property for payment thereof; this
| being the main grounds of demurrer relied
| upon, others staued need not be considered
/ By the common law, the husband became
vested on the marriage. with the title to all
/ the personal property of the wife then in
/ her possession, or which might be reduced
/ TO possession, during the marriage. also 10
| the rents, and profits OF her real estate. her
! rights became merged in the nus band. such
| being the case, ne became liable for her oh
| legations incurred before marriage, and he
alone became liable for her maintenance
/ and support during marriage. as well as
| for that of her children by tie marriage.
| Thus the legal relations remained In this
| state until 1889, when her rights were en-
| larged by statute, and again further enlarged
| by the act OF lo4G. The enlargement of
| her rights, necessarially enlarged her
| liabilities. These rights and liabilities were
/ further extended by Revised Code, Chan
| NJ Sec. ), Art. % providing that all con-
| tracts made by the husband and vile or by
either of them, for supplies for the planta-
| ton of the wife, or for the maintenance,
| clothing, care aud support of her slaves, and
| for the employment OF an agent or Overseer
| for their management, may be enforced and
| satisfaction had ont 0fher separate eSldte. And
| all contracts made by the wite. or bv the
husband, with her consent. for family sup
| plies or necessaTies, wearing apparel for her
self or children, or for their education or
for household furniture, or fer carri2 ge. or
horses, or for buildings on her lands or
premises, and the materials therefor, or for
! the use, benefit, or improvement of her
| separate estate, shall be binding on her. and
| satisfaction may be had out of her separate
property"
BY Art. 20, it is provided, That the wife
may be sued Jointly with the husband, on
| all contracts @ other matters for which her
| separate property is liable but if the suit be
| against husband and wife. no judgment shall
| be rendered against her unless the liability
of her separate property be first establish
ed
This is the first time the question now
presented has come before this Court, or
| that of the High Court of Errors aud APP
peals of this State, so far rs ] am aware.
| have, in addition TO the able argument of
counsel, searched for adjudicatiOns by the
courts of other States, having statutes some
what similar TO our own, for something to
guide me in determining the decision of TINS
question, but have found nothing.
In a case determined at the last term of
this Court, it was held that where SUPPLIES
had been furnished the wife for the use OF
her plantation and family, and money was
advanced for their payment, that the prom
Use Of the wife 10 repay the amount adYan-
ced. would bind her. or in other words that
the party making the advance. was substi- !
tuted to the rights of the person furnishing
the supplies. but this is case in which
money was advanced before the supplies
were furnished.
BY the Common law the wife could not
bind herself, or render her separate property
liable. her legal existence being during mar
rage, merged into that of her husband, and
il is only by the statute that her rights and
liabilities are enlarged, and only TO the eX-
tent specified in the statute. SO 70 enable
her TO enjoy her property for the benefit of
herself and children, and to preserve and
improve its condition.
The High Court of this State, in the case
of Morris q wife. vs.. Palmer. CT al, 30 Miss
| 27S determined that the wife is not bound
| by her contracts, in carrying on 4 separate
| trade, or business. and in the case OF Berry
vs.. Bland, ). d. NJ, -. That the statute
| rendering the separate property OF the wife
| liable TO her contracts must be strictly con-
strued.
From these and other adjudicatious, am
| satisfied that the wife cannot. rs general
| borrower OF money, bind herself, so u to
| render her separate property liable, 10 mat
ter to what purpose the money may be after
wards applied, but whilst this is so | am
| equally well satisfied that under the powers
| conferred by this provision of the Code,
when it is necessary to procure money for
| the purposes mentioned, that she may Oor-
| row money and bind herself and render her
| separate property liable; but in such case
| the money must be necessary for the Dur-
chase of the articles so stated, and must be
so applied. and must be loaned for that pur-
pose. upon the contract, and consent of the
wife, and upon her credit; the lender look
| ing to her separate estate for payment. To
I hold otherwise would in many instances de-
| feat the very object of the law. The party
having the required articles, or labor TO fur
| nish. might not be willing 10 90 so OH a
| credit, but another might have the money
| and be willing to advance il. and if done.
and the supplies were furnished. or the la
| Dor performed. the party so advancing the
| money would be the very one Who really fur
| nished the thing needed. The statute uses the
/ words for family supplies or peceSsdfteS.-|
/ Wearing apparel Tor herself, or children. or
| for their education: Money is often found
| TO be very urgent family necessity to pro-
| cure supplieS,-something which the family
needs. and cannot well do without, for food,
| clothing, medicines SO money may be held
! TO be within the very words of the Act.
For what purpose can a married woman
desire TO hold separate property. but for the
| use and beneft of herself aa5 children and
| after food and clothing, what is more dear
| to the heart OF the mother, than to see her
| childres, Bell educated: This often can only
be attained by sending them from home,
| among strangers where the mother has no
credit. If she has not the money, how can
| She obtain it, only by borrowing ii, from her
| friends and can it be said that she cannot
contract for it. and bind her separate prop
| erty, which she holds in trust for this very
| purpose:
1t will be observed, that so much of the
statute as relates to the wife'S plantation
and slaves, the husband being the general
agent of the wife, may bind her separate
property by his contract for her. without
the conditiGa, that tt shall be by her eossseIt,
| but rs TO the other purposes. it requires If
1 the contracts are made by the husband, it
must be by the consent of the wife. And
| why? Because She might say that 10 was his
| duty and not hers, TO procure the thing
| needed Ii iS more necessary that she
| should consent TO be bound feP the borrowed
| money, and that il should be used for the
purposes designated; otherwise prolitGaJe.
! or even imprudent husband. might i'm prop
| erlv spend it; hence the lender should be
held to tske the risk for the application of
| the funds IoSped. This gives ample protec-
| ton 10 the vile. ana enables her and her
| children TO derive the benefits ihSegae1 by
| this provision of the law. Had the provis-
/ isions of the common law remained un-
] changed, the estate would have been vested
! in the husband, who would have been bound
| TO furnish the things needed, and the prop
b.,,-., 1.,tN
ment OF any funds necessarily borrowed Tor
rbair announcement