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Rowe agt. Smith.

45 Barb., 425; Klen agt. Gibney, 24 How., 31; Morrell agt. Cowley, 17 Abb., 76 ; Code, $$ 118, 119.)

By the act of 1860, property acquired by the labor of a married woman belongs to her; and this stock which committed this trespass was bought out of such earnings.

There is nothing in the return showing whether such earnings were before or after 1860, and in such cases every presumption is in favor of the judgment, and that the property was hers. (Bishop agt, Main, 17 How., 162.) Even if this were not so, the defendant would still be responsible, for trespass committed by cattle in her possession and under her control. (Tonawanda R. R. Co., agt. Munger, 5 Denio, 255.) I cannot see how the evidence relating to the lane or highway and the division fence, can operate as a ground for reversing this judgment, since there is no attempt to show that plaintiff removed any portion of the fence which he was bound to maintain. (Colden agt. Eldred, 15 J. R., 220.)

As a question of fact, that has been settled by the justice against the defendant, and there is nothing in the return from which we can say that such conclusion was wrong; all the inquiries as to the location of the division fence, or the existence of a highway, were wholly immaterial.

There is nothing in the other exceptions which calls for particular notice.

There were no fatal errors committed on the trial before the justice, and the judgment of the justice and of the county court should, therefore, be affirmed with costs.

PARKER, J. concurs.
BALCOM, J. dissents.

BALCOM, P. J., dissenting. This was an action for trespasses committed on plaintiff's land by defendant's cattle. One defense was, that the defendant was a married woman and that her husband, who was living with her, should have been joined with her as a defendant in the action.

Rowe agt. Smith.

The action was brought before a justice of the peace, where the plaintiff recovered a judgment against the defendant, personally, for $20 damages, besides costs.

The defendant appealed to the Cortland county court, where the judgment against her was affirmed with costs.

The defendant appealed from the judgment of the Cortland county court to this court.

The cause was first argued at the July term of this court in 1868—the court being equally divided in opinion, a reargument was ordered at the November general term of this court in 1868.

The cause was again argued at the January general term of this court in 1869, and was decided at the May general term, 1869, by BOARDMAN, PARKER and Balcom, Justices— Justice MURRAY was then sitting as a member of the court of appeals.

It is provided by section 114 of the Code, “when a married woman is a party, her husband must be joined with her, except that: 1. When the action concerns her separate property, she may sue alone.” The second subdivision of that section relates to actions between husband and wife and need not be considered.

There can be no doubt that it is necessary for the plaintiff to join the husband as a defendant with the wife in an action like this, unless the old rule was changed by the legislature in 1860 or 1862. (See Coon agt. Brook, 21 Barb., 546; Horton agt. Payne, 27 How., Pr. R., 374; and cases there cited), Horton agt. Payne, was affirmed at a general term of this court.

This action concerned the damage the defendant's cattle did upon the plaintiff's land. It did not concern the separate estate of the defendant within the meaning of section 114 of the Code.

The action was ex delicto, for a tort. The law always was, prior to 1860, that the husband was jointly liable with the wife for her torts. If the cattle of the wife escape and

Rowe agt. Smith.

do damage upon the land of another it is her tort; for which her husband is jointly liable with her, unless he is relieved from such liability by the laws of 1860 or 1862.

According to section 7 of chapter 90 of the laws of 1860, (Laws of 1860, p. 158.) “Any married woman may, while married, sue and be sued in all matters having relation to her property.” The same or similar language was retained when that section was amended in 1862, (Laws of 1862, p. 344.)

It is provided by chapter 172 of the laws of 1862, (Laws of 1862, p. 343.) “In an action brought or defended by any married woman in her name, her husband shall not, neither shall his property, be liable for the costs thereof, or the recovery therein." (Id. § 5.) “A married woman may be sued in any of the courts in this state, and whenever a judgment shall be recoverd against a married woman, the same may be enforced by execution againt her sole and separate estate in the same manner as if she were sole.(Id. $ 7.)

I think this language is insufficient to relieve the husband from his common law liability for the torts of his wife. It only exempts him from liability for damages or costs in actions to which his wife is a party when he is not also a party. The legislature must take another step in order to relieve the husband from liability for the torts of his wife, whether she commits them with her own hands or by allowing her cattle to go upon the land of another.

But it is said this action was a “matter having relation to the sole and separate property” of the defendant, and that therefore, she was properly sued the same as if she had been sole. (Laws of 1862, p. 344, § 7.)

The action did not and could not affect the defendant's right or title to the cattle that did the damage upon the plaintiff's land ; nor did it affect her possession or the right to the possession of such cattle; and I am of the opinion she was not sued in a “matter having relation to her sole and Rowe agt. Smith.

separate property,” within the meaning of the act of 1860 as amended in 1862, (Laws of 1862, p. 344, § 7.)

For these reasons, I am of the opinion the judgment of the county court and that of the justice of the peace in the action, should be reversed with costs.

NOTE: It is understood the defendant has taken the above cause to the conrt of appeals--leave having been granted to carry the case to that court by the supreme court.

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Rogers agt. Marshall.

SUPREME COURT.

WILLIAM C. ROGERS, Respondent, agt. MARY MARSHALL and

others, Appellants.

This court never refuses preliminary injunctions and the appointment of a receiver, if

the condition of the subject of the controversy requires the aid of these provisional remedies. This rule applied to this case, where it appeared that the defendants, who were alleged to be holding the premises under a defective title, were irresponsible; that they were collecting the rents, which they were unable to refund, and which probably would be lost if they were not restrained.

New York General Term, August, 1869.
Before Clarke, P. J., CARDOZO and BARNARD, Justices.

APPEAL from an order, granting a preliminary injunction and appointing a receiver.

A. C. Morris, for appellants.

In January 1855, Lewis C. Rogers, the father of the plaintiff, was the owner of six lots of ground in the city of New York, described in the complaint, worth, free from incumbrance, about $17,000, and no more, as appears by the uncontradicted testimony of two experienced witnesses.

The property was incumbered by a first mortgage for $10,000, by a second mortgage held by one Singer for $6,665 and was further incumbered by judgments amounting to

$1,500.

Rogers himself was hopelessly insolvent, and remained so to the day of his death.

On the 9th of July 1955, one James Maginn recovered a judgment against Rogers in the N. Y. common pleas, by which said premises were adjudged to be sold by the sheriff,

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