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Partial intoxication would not be sufficient as a defense.21 To render the instrument invalid it must appear that at the time of its signature the party was so drunk as to have drowned reason, memory, and judgment, and impaired his mental faculties to an extent that would render him non compos mentis for the time being. This is so especially when the other parties connected with the transaction have not aided in, or procured his drunkenness.22 There are some authorities to the effect that a note signed by the maker while in a state of intoxication cannot be avoided when in the hands of a bona fide purchaser before maturity.23 An indorsement made by a person while so intoxicated as not to realize the result of his acts will not bind him, in favor of the indorsee who had knowledge of such intoxication.24

25. Married women.

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a. Under the common law. Under the common law a married woman is incapable of entering into a contract of any nature; for during her marriage, her very being, or legal existence, as a distinct person, is suspended, or, at least, is incorporated and consolidated with that of her husband.25 It follows, therefore, independent of any statute, that the promissory notes, bills of exchange, or other commercial paper executed by a married woman are, at common law, absolutely void.26 There are, however, certain exceptions to this rule: (1) Where the husband is legally dead, or where he has been absent and not heard from for seven years,

Dec. 66; McClure v. Mansell, 4 Brewst. (Pa.) 119.

21. Where the maker of a promissory note was not so intoxicated at the time he made the note but that he remembered the act and accompanying circumstances the next morning, held that he could not set up as a defense, in an action on the note by a bona fide holder, the plea of intoxication. Caulkins v. Fry, 35 Conn. 170; Miller Finlay, 26 Mich. 249.

v.

22. Bates v. Ball, 72 Ill. 108.

23. Smith v. Williamson, 8 Utah, 219, 30 Pac. 753. On the grounds of public policy and the necessities of commerce, the defense of drunkenness in the maker cannot be set up against the innocent holder of a negotiable note. State Bank v. McCoy, 69 Pa. St. 204, 8 Am. Rep. 246; McSparran v. Neeley, 91 Pa. St. 17.

(Eng.) 623, where the defendant pleaded, in an action by an indorsee against the indorser of a bill of exchange, that when he indorsed the bill he was so intoxicated and thereby so deprived of sense, understanding, and the use of his reason, as to be unable to comprehend the meaning, nature, or effect of the indorsement, or to contract thereby; of which the plaintiff, at the time of the indorsement, had notice. Held to be a good answer to the action.

25. Story on Promissory Notes (5th ed.), § 85; 1 Bl. Comm. 442; Bayley on Bills, chap. 2, § 3.

26. Vance v. Wells, 6 Ala. 737; Mudge v. Bullock, 83 Ill. 22; Howe v. Wildes, 34 Me. 566; Waterbury v. Andrews, 67 Mich. 281, 34 N. W. 575; Bauer v. Bauer, 40 Mo. 61; Shannon v. Canney, 44 N. H. 592; Wilson v. 24. Gore v. Gibson, 13 Mees. & W. Cheshire, 1 McCord Eq. (S. C.) 239.

so that the law presumes him to be dead, the wife may make contracts that will bind her at law.27 And in many States in this country this exception is carried still further, and it is held that where the husband was never in the State, or has left it and wholly renounced his marital rights and duties, and deserted his wife, she may make contracts and sue and be sued in her own name as feme sole.28 (2) If a married woman have a separate estate and

27. Edwards on Bills of Exchange and Promissory Notes, p. 68.

as a feme sole. James v. Stewart, 9 Ala. 855; Mead v. Hughes, 15 Ala. Civiliter mortuus.-The wife of a 141; Krebs v. O'Grady, 23 Ala. 726; man civiliter mortuus, or banished, or Clark v. Valentine, 41 Ga. 143; Love convicted of a crime and sentenced for v. Moynehan, 16 Ill. 277; Prescott v. life, may contract, sue, and be sued Fisher, 22 Ill. 390; Burger v. Belsley, as a feme sole. 2 Kent's Comm. 154; 45 Ill. 74; City of Peru v. French, 55 Robinson V. Reynolds, 1 Aikens Ill. 317; Anderson v. Jacobson, 66 Ill. (Vt.), 174, 15 Am. Dec. 673; Krebs 522; Smith v. Silence, 4 Iowa, 321; v. O'Grady, 23 Ala. 726, 58 Am. Gregory v. Pierce, 4 Metc. (Mass.) Dec. 312; Young v. Pollak, 85 Ala. 478; Benadum v. Pratt, 1 Ohio St. 439, 5 South. 279. So the wife 403; Bean v. McCord, 4 McCord of a convict sentenced to transportation for a term of years may enter into a contract, even after the expiration of his term, if he continues beyond seas, for this is to be deemed an abjuration of the realm. Carroll v. Blenco, 4 Esp. (Eng.) 27. And it has been held that the wife of a convict sentenced to transportation, but remaining on prison hulks within the realm, may be declared a bankrupt where she carries on business as a feme sole. Er p. Franks, 7 Bing. (Eng.) 762. As to absence from State and no knowledge of husband's existence for seven years, see King v. Paddock, 18 Johns. (N. Y.) 141.

(S. C.), 148. It must, however, conclusively appear that the desertion is complete and absolute, amounting to an entire renunciation by the husband of his marital rights and relations. Ayer v. Warren, 47 Me. 217; Smith v. Silence, 4 Iowa, 321; Gregory v. Pierce, 4 Metc. (Mass.) 478. In the latter case the court said (Shaw, C. J.): "The principle is now to be considered as established in this State, as a necessary exception to the rule of the common law, placing a married woman under disability to contract or maintain a suit, that where the husband was never within the Commonwealth, or has gone beyond its juris28. Desertion.- It was formerly diction, has wholly renounced his mariheld in England and in some of the tal rights, and deserted his wife, she American States that a wife of a citi- may make and take contracts, and zen who has deserted her and left sue and be sued in her own name as the country without having abjured a feme sole. But to accomthe realm, or who remains out of the plish this change in the civil relations country for the purpose of looking of the wife, the desertion by the husafter certain property interests, can- band must be absolute and complete; not sue or be sued as a feme sole. it must be a voluntary separation from Bogget v. Frier, 11 East (Eng.), and abandonment of the wife, embrac301; Walford V. De Pienne, 2 ing both the fact and intent of the Esp. (Eng.) 554; Marsh v. Hunting- husband to renounce de facto, and so ton, 2 Bos. & P. (Eng.) 226; Boyce far as he can do it, the marital relav. Owens, 1 Hill (S. C.), 8; Rogers v. tion, and leave his wife to act as a Phillips, 8 Ark. 336. But the law feme sole. Such is the renunciation, seems well settled in most of the coupled with a continued absence in a States where the question has arisen, foreign State or country, which is held that where a husband has deserted his to operate like an abjuration of the wife, or driven her from home by abuse, realm." and permanently left the State, his wife may contract, sue, and be sued

* *

In some States it has been held that a departure from the State by the de

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make a promissory note, or accept a bill of exchange, she is liable. (3) Where a married woman has been divorced a vinculo matrimonii she may bind herself as a feme sole, because such a divorce annuls the marriage to all intents and purposes and consequently removes her disability.30 But it is generally held that a limited divorce, or a divorce a mensa et thoro will not have such an effect;31 and when the wife is living apart from her husband under articles of agreement, providing for a separate maintenance, the commonlaw disability continues,32 unless it appears that the husband has left the State to permanently reside elsewhere.33

Illinois.- Swift v. Castle, 23 Ill. 209; Conkling v. Doul, 67 Ill. 355. Kansas.- Deering v. Boyle, 8 Kan. 525; Wicks v. Mitchell, 9 Kan. 80.

Maryland.- Cooke v. Husbands, 11 Md. 492; Koontz v. Nabb, 16 Md. 549; Wilson v. Jones, 46 Md. 349.

serting husband is not necessary to remove the disability of the wife. In the case of Love v. Moynehan, 16 Ill. 277, Justice Skinner says: "We hold the law to be, that where the husband compels the wife to live separate from him, either by abandoning her, or forcing her, by whatever means, to leave Missouri.- Coats v. Robinson, 10 him, and such separation is not merely Mo. 757; Whitesides v. Cannon, 23 Mo. temporary and capricious, but perma- 457; Schafroth v. Amos, 46 Mo. 114; nent, and without expectation of again Kinnon v. Weippert, 46 Mo. 532, 2 living together, and the wife is un- Am. Rep. 541; Miller v. Brown, 47 provided for by the husband, in such manner as is suited to their circumstances and condition in life, she may acquire property, control her person and acquisitions, and contract, sue, and be sued in relation to them, as a feme sole, during the continuance of such condition."

Husband's insanity.- Where husband is insane and confined in an asylum without the State, the wife may contract. Gustin v. Carpenter, 51 Vt. 585; Harris v. Bohle, 19 Mo. App. 529.

29. England.- Bullpin v. Clarke, 17 Ves. 566; Hulme v. Tenant, 1 Bro. C. C. 16; Stewart v. Kirkwall, 3 Madd. 387; Johnson v. Gallagher, 30 L. J. Ch. 298; McHenry v. Davies, L. R., 10 Eq. 88; Davies v. Jenkins, L. R., 6 Ch. Div. 728.

Alabama.- Collins v. Rudolph, 19 Ala. 616; McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67.

Connecticut.- Imlay v. Huntington, 20 Conn. 146; Hitchcock v. Kieley, 41 Conn. 611; Williams v. King, 43 Conn. 569.

Florida. - Maiben v. Bobe, 6 Fla.

381.

Georgia.- Wylly v. Collins, 9 Ga. 223; Dallas v. Heard, 32 Ga. 604; Saulsbury v. Weaver, 59 Ga. 254.

Mo. 504, 4 Am. Rep. 345; Metropolitan Bank v. Taylor, 62 Mo. 338.

New Jersey.- Leaycraft v. Hedden, 18 N. J. Eq. 512.

New York.-Yale v. Dederer, 18 N. Y. 265, 22 N. Y. 450, 68 N. Y. 329; Manhattan Brass Co. v. Thompson, 58 N. Y. 80; Gosman v. Cruger, 69 N. Y. 87; Eisenlord v. Snyder, 71 N. Y. 45.

Ohio.- Maclin V. Burroughs, 14 Ohio St. 519; Phillips v. Graves, 20 Ohio St. 371, 5 Am. Rep. 675; Williams v. Urmston, 35 Ohio St. 296.

30. Byles on Bills (16th ed.), p. 73; Story on Promissory Notes, § 85. Parsons on Notes and Bills, p. 78; Chase v. Chase, 6 Gray (Mass.), 159; Piper v. May, 51 Ind. 283.

31. Lewis v. Lee, 3 B. & C. (Eng.) 291; s. c., 5 D. & R. (Eng.) 90. But see Dean v. Richmond, 5 Pick. (Mass.) 461, where it was held that a wife divorced a mensa et thoro, and living apart from her husband could sue and be sued as a feme sole. See also Pierce v. Burnham, 4 Metc. (Mass.) 303.

32. Marshall v. Rutton, 8 T. R. (Eng.) 845; Lord St. John v. Lady St. John, 11 Ves. (Eng.) 526; Parker's Exr. v. Lambeil's Exr., 31 Ala. 89; Fuller v. Bartlett, 41 Ill. 241; Harris v. Taylor, 3 Sneed (Tenn.), 536. 33. Rose v. Bates, 12 Mo. 30.

b. Enabling statutes.— In many of the States of the Union, and also in England many statutes have been enacted entirely removing or greatly modifying the disability to contract imposed upon married women by the common law. Indeed in recent years there has been a rapidly growing tendency in legislation to abrogate the common-law rules restricting and limiting the rights and liabilities of married women, and to place them in respect thereto in the same condition as unmarried women.34 It is not the purpose of this work to dwell at length upon the difficult questions involved in the consideration of the effect of the statutes of the several States upon the prior existing common-law rules. Married women are still subject to common-law rules in those States where the common law has been unchanged by statute; if a special or limited power to contract is given them, they are still deemed prima facie unable to contract, and the burden is on the persons relying on the validity of their contracts to bring them within the statutory rule; and where State statutes have abrogated all disabilities, the contracts of married women are no longer subject to special rules, and they have hence become subject in all respects to the same law as other persons. The laws of the several States differ

35

35a

34. Canal Bank v. Partee, 99 U. S. 331, 25 L. Ed. 390.

35. Troy Fertilizer Co. v. Zachry, 114 Ala. 177, 21 South. 471; Way v. Peck, 47 Conn. 23; Rodemeyer v. Rodman, 5 Iowa, 426; West v. Laraway, 28 Mich. 464; Lewis v. Perkins,

36 N. J. L. 133.

66

The

prima facie binds her and not her husband, and in case of an instrument payable to her, she alone can indorse, or receive the money or give a valid discharge." Byles on Bills (16th ed.), p. 78.

these acts are very numerous. general result of all of them seems to be that a married woman having a separate estate enjoys an independent legal existence so far as as it is concerned, but those dealing with her should take care to see that she possesses it at the time, and is contractEnglish Married Women's Property ing in respect to it, and not as agent Act (33 & 34 Vict., chap. 93) permit- for her husband. Her acceptance ted married women to keep for their own use their wages and earnings gained independently of their husbands and to sue and be sued upon their contracts in respect to their separate estates. The act of 45 & 46 Vict., chap. 75, repealed the former act and provides that a married woman can acquire, hold, and dispose of property, real or personal, including choses in action, without the intervention of a trustee; and she may sue and be sued, both in contract and tort, to the extent of her separate property, whether held at the time or subsequently acquired, just like a feme sole. All her contracts prima facie relate to and bind her separate property, subject to any restraint on anticipation, and if trading separately she may be made bankrupt. The English cases under

The laws of many of the States follow closely the English acts above referred to, and the remarks of Mr. Byles appended thereto are equally applicable to such States.

Those who deal with a married woman are bound to inquire as to whether a contract, or the consideration thereof, is for her benefit, or the benefit of her estate, and therefore one which, under the statute, she may lawfully make. Cupp v. Campbell, 103 Ind. 213, 2 N. E. 565.

35a. The liability of a married woman on a contract made within the

materially in their methods of treating the disabilities of married women. To determine what these disabilities are it will be necessary to consult the statutes of such States and the cases arising thereunder. There will only be space in this work for a consideration of a few of the more important common-law rules which are generally applicable in all jurisdictions to the rights and liabilities of married women in respect to commercial paper, unless modified by statute.

c. Bills and notes of married women generally.— Under the common law negotiable instruments executed by a married woman are absolutely void,36 subject of course to the exceptions noted above. If such an instrument be executed by a married woman in respect to her separate estate it is in most jurisdictions a valid and binding obligation payable out of such estate. 37 This exception is founded in equity. The cases upon which it was based were those where the liability to pay was dependent upon considerations that did not recognize the married women's legal obligations as arising out of their contracts, but rather upon the fact that credit was given or the debts contracted on the faith of their separate estates and to be paid out of them.38 Where the wife had no separate estate or business, a note signed by her, given for sup

scope of her statutory capacity is to be determined by the same rules as those applied to persons of full capacity. McKell v. Merchants' Nat. Bank, 62 Neb. 608, 87 N. W. 317.

36. Alabama.- Vance v. Wells, 6 Ala. 737.

California.- Butler V. Baber, 54 Cal. 178.

86.

Florida.- Dollner v. Snow, 16 Fla.

Indiana.- Higgins v. Willis, 35 Ind. 371; Brick v. Scott, 47 Ind. 299. Kentucky. Stevens v. Deering, 9 S. W. 292.

61.

Missouri.- Bauer v. Bauer, 40 Mo.

Nebraska. State Sav. Bank of St. Joseph v. Scott, 10 Neb. 83, 4 N. W. 314.

New Hampshire.- Shannon v. Canney, 44 N. H. 592.

New York.- Vansteenburgh v. Hoffman, 15 Barb. 28; Bogert v. Gulick, 65 Barb. 322; Lenderman v. Farquarson, 101 N. Y. 434, 5 N. E. 67. North Carolina.- Wilcox v. Arnold, 116 N. C. 708, 21 S. E. 434.

South Carolina.- Wilson v. Cheshire, 1 McCord Eq. 233; Goodhue v. Barnwell, Rice Eq. 198; Howard v. Kitchens, 31 S. C. 490, 10 S. E. 224.

Tennessee.— Yeatman v. Bellmain, 1 Tenn. Ch. 589; Snodgrass v. Hyder, 95 Tenn. 568, 32 S. W. 764.

Wisconsin. O'Malley v. Ruddy, 79 Wis. 147, 48 N. W. 116.

As to validity of notes given or indorsed by a married woman to her husband under a statute prohibiting contracts between husband and wife, see National Granite Bank v. Tyndale, 176 Mass. 547, 57 N. E. 1022, 51 L. R. A. 447; First Nat. Bank v. Albertson (N. J. Ch.), 47 Atl. 818.

37. Nispel v. Laparle, 74 Ill. 306;
Wright v. Dresser, 110 Mass. 51;
Nelson V.
Miller, 52 Mass. 410;
Harris v. Gates, 121 Mich. 163, 79
N. W. 1098; State Savings Bank of
St. Joseph v. Scott, 10 Neb. 83, 4
N. W. 314; Shannon v. Canney, 44
N. H. 592.

38. Edwards on Bills and Notes, p. 69; Darwin v. Moore, 58 S. C. 164, 36 S. E. 539.

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