Squares . Campbell.

any, when in an action or judicial proceeding, are all subjects of legislative regulation. No provision of the constitution is, therefore, violated in allowing the property to be seized as by this act.

It has also been urged before me that this act takes away from the owner of the property seized the right of replevin. There is nothing in the act itself that takes away the right of replevin. The right of replevin, when property is seized by virtue of this act, is not taken away by section 207 of the Code, which was in force at the time that this act was passed. That being so, the property thus seized may be replevied by the owner, but if on the trial of the action of replevin it should be established that the seizure was lawful, the owner would be obliged to return the property and subject it to the proceedings, or pay the sums necessary to redeem. The conclusion, to me, is irresistible, that the law now gives to the owner of the property seized by virtue of this act, the same right of replevin as it did in case of distress of animals damage feasant.

If I am right in these views, the legislature has not transcended its powers in the passage of the act in question. I am satisfied that the constitutionality of the act can be sustained upon another principle, to wit, it is entirely remedial in its character. If so, Judge Porter, in his opinion in the case of Rockwell v. Nearing, virtually concedes it would be valid. In the original act, some of the allowances were penal in their character. A recovery for the damages was not provided for; therefore the proceeding was not penal in its character. In the amended act, a recovery of the damages of the captor is provided for, and it is the object of the proceeding, and would be a bar to any other recovery therefor. The other allowances. are for costs of officers, and for the trouble and expense of the captor incidental to the judicial proceeding. So that what, under the former act were penal, by the amend

Squares v. Campbell.

ment are made incidental to the main object of the proceeding, which is remedial, to wit, the recovery of the damages.

I therefore hold the amended act to be constitutional and valid. The judge, in the hurry of the circuit, directed a verdict for the plaintiff in this action of replevin.

The second point is, assuming the evidence on the part of the defendant to be true, and the act to be valid, was the defendant protected in holding the property at the time of the demand? Section two of the amended act provides that it shall be lawful for any person to seize and take into his cutody, and retain until disposed of as required by law, any animal, &c. It is required that the captor proceed with reasonable diligence, and make his complaint before the justice, and not unnecessarily retain the property before the complaint is made. There is nothing in the case showing want of diligence, neglect or abuse of the property by the defendant, that would render him. a trespasser in holding the property, if the act under which he made the seizure, and was holding it, is valid.

The verdict must therefore be set aside, and a new trial granted, costs to abide the event.

[DELAWARE SPECIAL TERM, May 15, 1871. Murray, Justice.]

60 406 62 539 7L 27 7L 33 15h 7 33h 472 34h 95 63a 613

JASON FAIRBANKS vs. MARY MOTHERSell.

A married woman, having a separate estate, may employ her husband, as her agent, to transact any or all of her business; and hence she may contract with him to do all her work, or any part of it, by the job, for a stipulated price.

A married woman, being engaged in building a house on premises owned by her separately, let the digging of the cellar, and the laying of the cellar wall, to her husband by the job. The husband employed the plaintiff to plow and scrape and level off the lot, and he performed work of that kind, supposing the husband to be the owner of the property. No part of such work, however, was done upon the husband's job of digging and walling up the cellar. Held that the case stood simply upon an employment of the plaintiff by the husband, to work for his wife, upon her separate property, withom any express agreement whether he should be paid by the husband, or the wife. And that the wife knowing the plaintiff was at work there, and seeing the kind of work he was doing, the law would imply a promise, on her part, to pay for the services, if it was in fact her work.

A

PPEAL by the defendant from a judgment of the county court of Jefferson county, affirming a judgment rendered by a justice of the peace.

The action was commenced in a justice's court. The complaint alleged that the defendant was a married woman, owning, in her own right, a lot of land situated on Washington street, in the city of Watertown, and that she was indebted to the plaintiff in the sum of $50, for work, labor and services performed for her by the plaintiff, in or about the month of November, 1868, at her request, and for the benefit of her separate estate. The answer was a general denial. On the trial, it was admitted that the defendant. owned the real estate, as stated in the complaint.

The justice rendered a judgment for the plaintiff for $37.50, and costs.

D. O'Brien, for the appellant.

Moore & McCartin, for the respondent.

Fairbanks v. Mothersell.

By the Court, JOHNSON, J. The work and labor for which this action was brought, was confessedly performed by the plaintiff, on the defendant's separate property and estate; and she received the benefit and advantage of such labor. She was engaged in building a house for herself, on premises owned by her separately; and the labor was performed on the premises, in some way, as clearly appears, as preparatory to, or in connection with, the erection of such building. The defense to this claim is that the work was done upon the employment of the defendant's husband, on his own account, and not for the defendant, in any legal sense. That the defendant let the digging of the cellar, and the laying of the cellar wall, to her husband, by the job, and paid him therefor, according to agreement, $138, and that this work was done upon that job, for the husband. It appears that the husband requested the plaintiff to do the work, and the plaintiff did not know, at the time, but that the husband owned the premises, and supposed he was working for him upon his own property. He did not know, and was not informed, that the wife owned. the property, and the husband was a mere jobber under her for any portion of the work.

I suppose, as the law now is, in regard to the separate property of married women, they may make special contracts with their husbands and let jobs to them of particular work, such as building and the like, the same as though they were strangers; and in such a case, where the transaction is, in all respects, in good faith, and the husband employs the men on his work in his own name, and for his own benefit, as contractor or jobber, and in no respect on the wife's credit, the laborers so employed would have to look to the husband for pay, and could not make the wife liable, the same as in any other case where a jobber employs laborers for himself, to work on his job. Such an arrangement, however, between husband and wife must be an exceedingly suspicious one, where the laborers had

Fairbanks v. Mothersell.

not been paid by the husband, and would be open to, and invite the most searching and rigorous scrutiny. Doubtless, in such a case, in view of the relations between the proprietor and jobber, the honesty and good faith of the transaction should be made to appear very clearly, in order to shield the wife from liability. It has been repeatedly held that the wife may employ her husband as her agent, to transact any or all of her business; and this being so, I do not see why she may not contract with him to do any and all her work by the job, for a stipulated price.

In this case, however, it is not shown that the work performed by the plaintiff was upon the job of digging and walling up the cellar. The husband had no other job than the cellar. All the rest of the work on the lot was done for the defendant, as clearly appears. The plaintiff's work, as the proof shows, was plowing and scraping, in leveling off the lot. It was not upon the cellar, or at least that does not clearly appear from the evidence, and I think the justice might have well so found. This being so, the case stands simply upon an employment by the husband to work for his wife, on her separate property, without any express agreement whether he should be paid by the husband or wife. The defendant knew the plaintiff was at work there, and saw the kind of work he was doing, and the law will imply a promise, on her part, to pay for the services, if it was in fact her work.

Upon the question of payment, the evidence was conflicting, and the finding of the justice is conclusive. The defendant testifies that she gave her husband a check to pay for this very work; but as the claim was not paid, she remained liable as before. The fact that she gave her husband the check to pay for the labor, is some evidence that she expected to pay for it. It appears that the plaintiff did not charge the work to any one until after he ascertained that the wife owned the property. No entry had been made of it against any one in particular, though he