, 1873-07-25
MARRIED WOMEN As PARTNERS.
What tho Authorities on tho AZ
's>-i ,nrmative Sldc Show. il
The Argument Closed and Case Taken
Under Amusement.
TIE EINKEAD GAZE.

Under AdvIsen1ent.
- >. .....
TIE K1NKEAD GAZE.
-. Tho Kinkead caso, involving tho right OF
married woman to entor into trading partner
ships and to malc binding contracts. .was resumed
before Judge Drummond yesterday morning.
Nrr. Tonney, Of Tcnney, Flower Il Aberoroln-
bio, made his argument as counsel tor tho
Assignee Of tho bankrupt, which Ia summarized
~ follows :: :. ..,..
Tho doctrine Of tho ''old rcd-aandstono
period" that wifo l,al 10. legal oxistenoe, and
coutd not hold property or mike contracts, has
boon practically obsolete for agoa.
Tho doctrine Of '.'tha wifo's separate estate"
WIS !" established in England more than con-
tury ago, and to tho equity courts belongs tho
nredit OF tho Innovation" sohoulor'a Domestic
Relations, chapters 10 and II, gives clear md
admirable history Of tho doctrine.
TIC equity doctrine ia TINT o vito can hold sep
:arate property, and therefore that sl,o can con-
troll and dispose Of 1t; md incur labIfiios on tho
credit OF It, and TINT it eau bo slbiecsod to tho
pny1nont Of hcr dobts. Afoden statutoB hayo
, merely enacted this doctrine rs, chaptor GU
tAtion. (Pareons on .partnerehfpp, P. 25-7.)
: The only controversy Inns been aa 10 low tho
'remedy should bo administered, and upon what
grounds. Somo courts laYe held that itcoutd bo
) cooding IL chancery. Our Court holds TINT It,
must be In equity. (h0 Illinois, 470. 10 Now
Rofa o2 YsG p1eysr a w;scoasn 10 Ws'o1sn Il @S
Property bought by d wifo, ayon on orolit, and
mot paid for, is hor separate property. 1Ior hus
band is not liable for IT. and Inns no interoat In
T.. 20 Illinois. 47o, 81 illinois, 127. 4 Mo:
Now York, 277. & Wisconsin r., o5.)
Illinois stntutos construed thus,-tho husband
may be tho agent Of the wife, and thoro ought to
b ~ agreement botween thom a. to his compen-
esa o 'nfy 49, q 1nes S. 6 fiaeip
4s1. 81 illinois, b26, 161. Al 1llinois, %, 425,;
Tho power of . vito to buy and sell, rs i nho
Joint nccount with another. This III spsrtnernhip.
There Is nothing to Prevent her trading Jointly
with hor huaband.' She can lend money to him,
and recover It; or borrow from him. or mako
other contracts, and mako hotaen liab1o to tho
txtcnt Of her aaparate property.
The goods in this caee were bought by and
conveyed to Kinkoad d Co.. TINT ia, Kinkead and
Its wife. 1i., Credit was given to both IN, md
t' no S fssa rss' apvs1s sary a LII sa fe0i Ths,s
} account, under tho namo Of Kinlead & Co. On
tho contrary, 1t is expressly admitted by both,
In their long aud .clrumatantial answer, that
they wore Jointly Interested, and it iB SO adtu-
property Of Kinkcal md lis Vito, aid hor aharo
could DO subjected in equity to the payment Of
her debt incurred in tho purchase Of it.. It could
not be takon to pay tho separate debt Of her hus-
band.
Proceedings in bankruptcy aro regarded as
proceedings IN equity, and governed by tho same
T1les.. They bring in all parties and intorests,
and mako comploto adjudication: lin 70 6c4uy-
ler 2 D. r., 1863; Bump 3o9)
Tho good sense and truo Interpretation Of tho
bankrupt act require that all who arc capable Of
oa aas hong ana H. ineorng
topB. Again, the printed paporb III this case
:Volyed.
Tho petition in bankruptcy waH filed Dec.
pRss 1 h haas ~s d sf9 q head t ey ene ~ere = par f.
'nors under the nalue Of kinkead q Co. They
filed IN answor, signed BY both OF them, per-
:sonally In which they. did not dcny That
hSy aush but tho
they Withdrew this anawer, and fled another, IN
substance admitting tho partnership, but deny
ing tho acts Of bankruptcy. This, was signed
and sworn to by both in person. This case was
fondants were adjudgod bankrupts as partners.
Duo proof WIS made that they bought tho
goods In question, aa Partners, aud it has mover
been deniod that they were partners, If husband
tho husband nlono, long hfter proved up hor
claim, and asked tor an order that 1t be paid out
Of the partnership assots, on tho ground That
fthero could be no partnership botwoon
husband and wife, and that tho asaetts were
consequently the assets Of Tho husband alone.
Tho Judge refused the ordcr, holding that thoro
could be, and was, such partnership; and that
the aasots were partnership assets. 1t ia this
decision which ManRer now HeekH to royorea.
Tho error. il any, waa In tho original ndjudica-
hcn, that tho defendants vero partners. Thnt
has never been attackod and as long rs it stands,
all the rest must ioeossarily follow. Mapaer at-
lacks the iuevitablo consequences OF tho adjudi-
cation; not tho adjudication itself. Tho adludi-
:. cation Gun ouly be attacked by writ OF error.
II cannot DO reached by tho supervisory juriUdlc-
= ton. (fha Knickorbocker Insurance caao il the
Supreme Court Of tho United Etatos.1f .
- Manser NOW sceka. to intrpduee new oyidonce,
showing that tho wife was not,a Partuer. This
caunot DO done. Tho Court can only pnHa upon
the same cnae that wns PASSED upon In tho Court
below. II q nuW case could DO mad0 here, this
Court would bo exercising original and not a],-
pellate jurisdiction. Tho decision below might
be right, and the proceedings here would bo 10
effect a new trial, when mono has boon grantpd
or asked for. e B. H., lis. Bump, 9th Ed, 300 !;
note 3. h., IT,. II 10 Great Western Telo-
graph Company, @. Legal NetUs, July 49, 1873.)
+ tho question sought to be reached W Mr..
decision therein was duly right, o. the. reasons
and authorities ho gives for it In lis pointed de-
ciaion nhoW and counsel did not deem 1t necoH.
eary to refer to other authoritieH.
His Honor said ho would tnke the caso undor
adqiaemont, and tho arguments closed.
--A------
PERSONAL.
N1,o unr Thin 1sro,un noafn- In ~ +bo q1,n-