States v. McKnight, 1 Cranch C. C. 84; Wood v. Luse, 4 McLean, 254; Harris v. Hardeman, 14 How. 334; Pettus v. McClannahan, 52 Ala. 55; Crane v. Barry, 47 Ga. 476; Forman v. Carter, 9 Kan. 674; Cotten v. McGehee, 54 Miss. 621; Stacker v. Cooper Circuit Court, 25 Mo. 401; Dederick's Adm'r v. Richley, 19 Wend. 108; Manufacturer's etc. Bank v. Boyd, 3 Denio, 257; Hallett v. Righters, 13 How. Pr. 43; Bender v. Askew, 3 Dev. 149; S. C., 22 Am. Dec. 714, 715; Winslow v. Anderson, 3 Dev. & B. 9; S. C., 32 Am. Dec. 651; Keaton v. Banks, 10 Ired. 381; S. C., 51 Am. Dec. 393; Hervey v. Edmunds, 68 N. C. 243; Cowles v. Hayes, 69 Id. 406; Hunt v. Yeatman, 3 Ohio, 15; Reynolds v. Stansbury, 20 Id. 344; In re College Street, 11 R. I. 472; Ingram v. Belk, 2 Strob. 207; S. C., 47 Am. Dec. 591, 595; Mills v. Dickson, 6 Rich. 487; Franks v. Lockey, 45 Vt. 395; Hooe v. Barber, 4 Hen. & M. 439; Peterson v. Peterson, 13 Phila. 82, 86; People v. Greene, 16 Pac. Rep. 197.

MANDAMUS WILL LIE TO COMPEL MUNICIPAL CORPORATION TO PAY JUDGMENT: Coy v. City Council of Lyons, 85 Am. Dec. 539, and note; note to Dane v. Derby, 89 Id. 738; and this is the proper remedy: Town of Lyons v. Cooledge, 89 Ill. 535; it is error to award an execution against the corporation: City of Bloomington v. Brokaw, 77 Id. 197; both citing the principal

case.

THE PRINCIPAL CASE IS CITED in Chamberlain v. City of Evansville, 77 Ind. 545, to the point that the change of a city charter does not thereby change the existing ordinances that are in harmony with the charter as changed; and in City of Cairo v. Campbell, 116 Ill. 309, to the point that where a court has jurisdiction of the parties and of the subject-matter, in a suit against a municipal corporation, its judgment against the corporation, until reversed or set aside, is absolutely conclusive in a proceeding by mandamus to compel the corporate authorities to levy and collect a tax to discharge the same, as to the right of the plaintiff therein to receive and the duty of the defendant to pay the amount of it.

DEAN V. BAILEY.

[50 ILLINOIS, 481.]

MARRIED WOMAN DOES NOT RENDER HER PERSONAL PROPERTY LIABLE FOR HER HUSBAND'S DEBTS, merely by allowing him to have a general use and control over it, consistent with their common interests; although if she permits her husband to deal with and sell it as his own, a purchaser from him would be protected.

ACTION on a replevin bond. The facts are stated in the opinion.

George W. Wall, for the appellant.

Henry and Fouke, for the appellee.

By Court, LAWRENCE, J. This was an action on a replevin bond, brought by Bailey, as sheriff, against Sophia E. Dean and others, under the following circumstances:

Executions against W. W. Dean, the husband of the said

Sophia, had been levied on a mule, a quantity of potatoes, and a horse-power. His wife replevied this property from the sheriff, but the suit was dismissed, without a trial, upon the merits. The sheriff then brought this suit upon the bond, and the defendants pleaded that the property replevied was the property of Sophia E. Dean. On this plea, issue was joined, and a trial had, which resulted in a verdict and judgment for the plaintiff, from which Sophia E. Dean appealed. There was evidence that her husband was wholly insolvent, and that the farm upon which they lived had been bought with the money of the wife, derived in part from the estate of her father, and in part from other relations. There was similar evidence in regard to the purchase of the horse-power and mule. The potatoes had been raised upon the farm, as she testifies, by labor paid with her money.

The court gave to the jury, for the appellee, the following instructions:

"3. If the jury believe, from the evidence, that Sophia E. Dean allowed W. W. Dean to buy and sell the personal property on said farm as his own, and in his own name, without giving notice to the world that he, W. W. Dean, was only an agent, and that the property in controversy was a part of said property so bought, then they will find the value of said property for plaintiff.

"4. If the jury believe from the testimony that the horsepower and mule in question were used and controlled by W. W. Dean, as his own property, with the knowledge and consent of Sophia E. Dean, and that at the time of such use and control said Dean was the head of the family of Sophia E. Dean, then they will find for the plaintiff the value of the property proven.

"5. The jury are further instructed that they must believe the property in question was acquired by Sophia E. Dean from some person other than her husband, and by and independent of him, and that such was not used, exercised, or controlled by Dean as his own property, with her knowledge and consent, before they can find for the defendant."

It is plain that the rule laid down in these instructions would, in many cases, substantially destroy the protection which the statute in regard to the property of married women was designed to give. Undoubtedly, if a married woman, owning personal property, permits her husband to deal with and sell it as his own, a purchaser from him would be protected in

his title against a claim by her, but it would be on the ground that she had held him forth to the world as her agent, with power to sell. But if we were to hold that a wife, owning personal property, rendered it liable for her husband's debts, merely by allowing him to have a general use and control over it, as laid down in these instructions, the property of the wife could be secure only, as suggested by counsel, by a practical divorce, a mensa et thoro, and by setting up a domestic establishment entirely apart from her husband. Take for example such a case as the present, and there must be many like it, where the husband and wife live upon a farm, which, with the stock upon it, has been bought with the money of the wife. It must follow, from the nature of the relation between husband and wife, from their mutual confidence and their common interests, that the husband, to all outward seeming, would use much of the property as if it were his own. Living under the

same roof with his wife, the head of the family, and as solicitous for the material prosperity of his wife as for his own, it would be unavoidable that he should exercise the same care and control over her property as he would over his own, and in the eyes of the public, have the same freedom in its use. We must construe this statute for the protection of married women in accordance with the intent of its framers, and accept all its innovations; and when the legislature has said that a married woman may own a horse in her own right, it is impossible for us to say that if she allows her husband to ride or drive that horse as he would one of his own, she thereby forfeits her title to his creditors. As we have already remarked, such use must necessarily follow from the relation of husband and wife, if such trust and confidence exist between the parties as should exist, and as the law supposes to be implied in that relation.

It may be said that under this construction of the statute the husband, using his wife's property as his own, would be able to obtain a credit to which he was not entitled. This is true, and this consideration was probably not forgotten by the legislature when it passed the law, but that body did not deem the fact that the husband might occasionally obtain an undeserved credit, a sufficient reason for withholding from the wife a just protection in the enjoyment of her own property, and it is simply our province to apply the law as we find it written.

Undoubtedly, the attempt will so often be made to use this

law as a cover for fraud that juries should always exercise a
rigid scrutiny in cases of this character. In order to prevent
the statute from being thus perverted, we should still hold, as
we held in Wortman v. Price, 47 Ill. 22, that if the wife places
her money in the hands of her husband, to be used by him in
trade, it is virtually a loan to him of the money, and his stock
in trade would be liable for his debts. So, too, we should hold,
as we held in Elijah v. Taylor, 37 Id. 249, if the husband by
his personal labor raise a crop upon the land of his wife, it
would be liable for his debts, subject, probably, to a lien on
her part for a reasonable rent, though this point did not arise
in that case.
But on the other hand, if the wife has invested
her money in a farm, and in the stock and implements neces-
sary for its cultivation, which would often be the best mode of
providing for her children, we see no reason why she should
not employ the aid of her husband in its management, without
subjecting her property to execution for his debts.

We are of opinion that the third, fourth, and fifth instructions given for the appellee should have been refused.

For these errors the judgment must be reversed, and the cause remanded.

Judgment reversed.

MARRIED WOMAN, WHETHER RENDERS SEPARATE PROPERTY LIABLE FOR HUSBAND'S DEBTS BY ALLOWING HIM TO HAVE USE AND CONTROL OF IT: See Lewis v. Johns, 85 Am. Dec. 49; Glidden v. Taylor, 91 Id. 98; Rush v. Vought, 93 Id. 769. It does not follow, because a wife merely allows her husband to have a general use and control over her personal property, consistent with their common interests, and the proper enjoyment of it by both, that it should become liable to the payment of his debts: Primmer v. Clabaugh, 78 Ill. 96; Blood v. Barnes, 79 Id. 438; and see Walker v. Carrington, 74 Id. 465; but if she place her separate funds in her husband's hands for the purpose of carrying on any general trade, although in her name, and the husband by his labor and skill increases the funds, the entire capital and the increase will not constitute the separate estate of the wife, but will be liable for the husband's debts: Wilson v. Loomis, 55 Id. 356; Robinson v. Brems, 90 Id. 355. The principal case is cited to these propositions.

4

EYSTER V. HATHEWAY.

[50 ILLINOIS, 521.]

HUSBAND CANNOT SUE ALONE TO ENFORCE HIS WIFE'S RIGHT TO HOMESTEAD, by seeking to avoid a release thereof executed by her, but she should join with him.

CERTIFICATE OF ACKNOWLEGMENT TO MORTGAGE, RECITING THAT WIFE RELEASED HER HOMESTEAD RIGHT, MAY BE IMPEACHED for fraud, duress,

or undue influence, it seems, on a bill in equity filed for that purpose, or, perhaps, by way of defense to a suit to enforce the mortgage. MONEY BORROWED TO PURCHASE LAND IS NOT PURCHASE-MONEY, within the meaning of the Illinois statute declaring that the homestead right should not be claimed against a debt due for the purchase-money. The statute only applies to persons occupying the relation of vendor and vendee.

BILL in chancery, filed by Samuel Eyster against Elias C. Hatheway and others. The bill alleged that the complainant, Eyster, and his wife, Sarah, had executed and delivered to Joseph C. Hatheway a deed of trust of certain premises, to secure the payment of a sum of money borrowed by Eyster from Hatheway to pay the last installment of the purchase price of the premises, which Eyster had purchased from one Redick; that thereafter Hatheway, pretending that he wished to give Eyster more time, but really desiring to obtain from Eyster's wife a relinquishment of her homestead right, applied to Eyster and his wife to have a new mortgage of the premises executed, and accordingly a new note and mortgage were executed; that the mortgage and certificate of acknowledgment purported to release the homestead right of the wife, but that the officer who wrote the acknowledgment did not ask her whether she voluntarily relinquished such right, nor did he say anything in relation thereto, and that she never intended to relinquish it; and that thereafter, Joseph C. Hatheway pretended to assign the note and mortgage to Elias C. Hatheway, but that there was no valid consideration for such assignment, and it was done to defeat any plea of usury that the complainant might interpose to the payment of the note. The bill sought to impeach the certificate of acknowledgment. The court dismissed the bill on the hearing.

Dwight F. Cameron, for the appellant.

Gray, Avery, and Bushnell, for the appellees.

By Court, WALKER, C. J. Complainant has no separate interest in the premises, or right to its occupancy, that will authorize him to file a bill in his own name to enforce the