Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-10-22
AN IMPORTANT DECISION.
A Wife Empowered to Execute a Bond for
Her Husband.


fore Chief Justice Lore and Associate
Justices Grubb and Marvel, was that
Of the Warder, Bushnell and Glessner
Co., plaintiff below appellant, VS.. Will
liam Il. Stewart and Janney Stewart,
defendant below respondent. The charge
to the jury by Chief Justice Lore was
as follows:
Gentlemen Of the jury: This is an
action brought by the Warder, Bush
nell and Gessner Co., plaintiffs,
against William Il. Stewart aud Janney
Stewart his wife, tho defendants, to re-
cover the amount of a lost note or obli-
CATION under seal, with warrant of at
torney thereto, claimed by the plaintiff,
to have been made, executed and de-
livered by the defendants to tho
plaintiff, dated September 1st, 1892, for
the sum Of $93-2 % payable September
1st, 1893 The plaintiff also claims in
terest from September LIST, 1893, max
ing tho aggregate claim at this date,
Sll6.33
The note itself has been misaid or
lost, and has been proved by secondary
evidence; that is, from the recollection
of the attesting witness and others as
to the tenor thereof.
iho ODliSdliui 10 pTONb W udN6 D6Bn
given by husband and wife, for the
debt OF the husband; and it's collection
is resisted by the defendants on several
grounds.
1t is objected, that as the obligation
was not given for the benefit of tho
wife, or for tho protection of her estate,
but for the debt of tho husband, that
tho obligation is void as to her; that
as the defendants are sued jointly, no
recovery can be had against either.
This involves the construction of Sec
tion 8 OF tho married wonlan's act of
April 9th, 1873, as amended. In Kohn
vs.. Collision, decided In Kent county,
April term, 1893; this court ruled,
that married woman could not be-
cone an accommodation endorser on
her husbands negotiable paper, to Sc
cure his antecedent dobts. The court
then said: In no case has the wife been
permitted to contract generally in rela-
tion to matters other than her own
property, unless expressly authorized so
to act as femme sole." We now adj
here to and emphasize that ruling,
which has since been approved in
Wright VS.. Parvis and Williams Co.,
decided in New Castle county, Novem
ber term, 1894.
Section 8 of the act Of 1878 as
amended, by act of February 9th, 1879,
reads as follows:
And in any case married woman
above the age of q years, may give
bond with or without warrant of attor-
ney, just as IL she were femme sole. !"
What might have been tho construction
of the language of the act of March
18th, 1875, docs not now concern us.
The amendment of February 9th, 1879,
above quoted, uses technical language
of such scope and precision, that after
the most careful consideration, we all
agree that under its terms married
woman may execute bond with or
without warrant of attorney, to secure
debt not her own. The language of
the section being expressly, that she
may execute such bond, ''just as il she
we're femme SOLE" The case therefore
comes within the rule in Kohn vs. Col
lison.
The use Of the words "as IL femme
sole," when unrestricted by the con-
text, have been quite uniformly consid-
cred by tho courts in constituting stat
utes relating to married women, as CIV
ing the largest possible power, and
practically emancipating the wife from
contractual limitations, imposed upon
her rs a married woman, with respect to
the subject matters of tho act.
In Roop ct uX Appeal, 10 Att. Repr.
27S, cited by the counsel for the de-
fendants; Chief Justice PaXson of the
supreme court Of the State of Pennsyl-
vania, specifically names these words as
the proper ones for the Legislature to
use IL unlimited power were intended
to be given. He there says:'" IL how
ever it was intended TO confer this
broad power, and place married
woman on the same plano as femme
sole, it could have been done in few
lines, declaring that hereafter a femme
covert, should have the same power to
contract debts as femme sole." The
same doctrine is sustained in Andrews
vs.. Matthews, l24 Mass., 10S: and also
2 Bishop on Married Women Sec. 233.
The defendants further object, that
even ii married woman has authority
to execute bond for purposes such as
this case discloses. that the obligation
proved in this case is not such bond
as comes within the terms of the statute.
Hurlstone in his work on bonds uses
this language, "a bond is an instru-
ment under seal, whereby one becomes
bound unto another, for the payment
of sum of money, or for the perform
ance OF any other act or thing" No
certain form is necessary. Amy form
of words in writing, under seal aclsnowl-
edging debt, and naming an obligee
is as obligatory as the most formal act.
9 Am. and English Ency. Law, 44S.
If therefore you believe tho lost paper
was in writing signed by the defend
ants and under seal, obliging the de-
PENDANTS TO pay to the plaintiff the
sum of money named, it WAS a bond
within the meaning Of the statute.
1t is further objected that there was
no seal opposite the signature Of the
wife, but only opposite the signature
of tho husband. On this point, in
Davis VS.. Burton Scanmon, Al, the
supreme court bf Illinois used this Ian.
guage tWe fol warranted by common
sense, by justic be and sound reason, as
well as by the principles of law, to pre-
sumo that all the signers of an instru-
mept indicating upon its face an inten-
tion to sign it, adopted any seal or scroll
| that may be annexed to the name of
one,n The supreme court OF New
Hampshire in Pequawkett Bridge vs..
Mattbes, Z N. H., $50, says: The
authorities are) conclusive. that there
NAV be less number of seals than OF
sieners to an instrument. 1t is said
that it is not necessary to have on
deed as many pieces of wax or waters
aa there are obiigors. and that one