Peak v. Lemon. trol or coercion of any one. In respect to her new rights and interests, the disabilities of coverture, as such disabilities existed at common law, are removed. The recent laws have surrounded her with new relations, declared her independence in certain particulars, and granted her new rights, out of which also arise new duties and obligations. The old common law is an utter stranger to the modern wife, and furnishes no decisions grounded upon that ancient relation of baron and femme which can apply as precedents to this new creature of the present day. But the principles of the common law regulating the conduct of other members of civil society who act on their individual responsibility as persons, sui juris, are applicable to the wife's present independent condition. The wife becomes, in law, a femme sole, an unmarried woman, in respect to her new situation, invested with the same rights and amenable to the same duties as other persons who are not under the guardianship or dominion of others. When she takes upon herself these new privileges she must also assume the burdens that belong to such a state of personal independence. In respect to her separate property and the earnings of her own labor, she is regarded by our law, as husband less. In these respects the law does not now presume that the husband controls his wife, nor does it allow him to do so by any command or coercion. In Cassin v. Delany (38 N. Y. R., 178), the questions decided arose in 1855, before the statute of 1860 and 1862 had conferred upon the wife this new capacity for trade and business on her own account. No questions there arose that are involved in this action. The old principles of the common law were applicable and were applied in that case. It has been recently decided that a married woman, engaged in the business of carrying on and operating a certain line of stages or omnibuses on her own account, is liable to third persons for injuries caused by the negligence of her servants in driving these vehicles; that she may be sued alone for such injuries. and her husband cannot be joined with her in the action, nor Peak v. Lemon. be made liable for such tort of his wife. (2 Abbott, N. S., 455, Gillies v. Lent.) The court there say that the business which the defendant (the wife) conducts is her sole and separate property, for her husband has not, in virtue of his marital relation, any interest in, right to or control over its management; and an injury, caused by the unskillful or negligent way in which the defendant's business is conducted, is a matter having relation to her separate property. The wife may carry on business with all the incidents and rights of property. The husband is not liable for any bargains or contracts she may enter into to carry it on, nor is he answerable for a liability arising from the unskillful or negligent manner in which it is conducted. In another case this court, at General Term (Seventh District), has laid down a rule quite inconsistent with the presumed subordination of the wife to the husband while in his presence, which prevailed at common law when the question at issue concerns her separate property. "When a married woman acts and speaks by her husband" say the court, "his declarations and acts are hers; and she must see to it, particularly when he assumes to act and speak in her presence for her, that he speaks and acts as the law and her duty would require her to speak and act if she spoke herself. She must in such case dissent and disapprove his acts and declarations, or they should be deemed hers. She cannot stand by and hear him assert rights for her and in her behalf or do wrong for her benefit, or refuse to do what her legal duty requires, and escape responsibilty. She must be deemed to assent when she does not dissent, under such circumstances." (Lindner v. Sahler, 51 Barb., 322.) In those transactions wherein the wife is now empowered to act for herself, as an unmarried woman, free from the control of her husband, she is liable to the same extent as any other person would be under the same circumstances; and although her husband may be present with her she is presumed by the law to act without his coercion or command. So on the other hand, the husband is free from all liability Peak v. Lemon. for her acts in such cases to the same extent that another person, not her husband, would be in her presence. Where the husband is by the law deprived of the control of his wife's actions, he is by the same law relieved from liability for her acts. In the present case the wife (Mrs. Lemon) held a demand against the plaintiff, Peak, growing out of her earnings or services, and when the plaintiff made demand of her for his property in her house she refused to give it up, claiming to hold it on account of the debt he owed her. Here she was in the wrong, for she had no lien on the plaintiff's property by virtue of which she could detain it till the debt was satisfied. She refused to deliver the property in the presence of her husband. Under such circumstances does the law presume her to be an independent actor, or to be under the command or coercion of her husband? If she had had such lien as she claimed, she would have had a right to detain the property until the plaintiff paid her demand. She would then be clearly acting free from the control of her husband, in that new capacity conferred upon her by recent legislation. Suppose she had held a chattel mortgage on this property for the security of the same debt under which she claimed to detain it and had refused to deliver it, but it finally turned out in proof that the mortgage had been satisfied before the demand and refusal, so that, in fact, she had no lien; or suppose it was proved that the plaintiff had not in fact executed the mortgage, or had never delivered it, or that the mortgage was a forgery; suppose she withheld the property on claim of actual pledge for the debt, but on trial the proof of pledging failed. In the cases supposed she would have no lien or right to detain the property, and her refusal would be sufficient evidence of conversion. Still she would be asserting her right to her sole and separate property, or such claim would be in respect to her separate property. Cases will often happen with married women as with other claimants of property, that their asserted title totally fails in the event. Peak v. Lemon. She may, with her own money, purchase a horse from some person not the true owner. On demand made by the latter she will refuse to surrender the property, claiming to hold it as rightful proprietor. She is guilty of a conversion. I cannot conceive any difference in principle between the several cases supposed and the case now before us. The wife here claims to hold certain property as security for her own demand. She is acting in her own behalf and in relation to her separate property. It is the claim she makes, and not its successful assertion that must determine her responsibility. The husband has no power to prevent her making such a claim, nor would he be liable in case the property had been forcibly taken from her and she had brought replevin, trespass or trover for it as her own property, for the costs of litigation in case of her failure. The learned justice who granted the new trial, was of opinion that the act of the wife in refusing to deliver up the property to the plaintiff, in her husband's presence, charged him as for a conversion, but did not charge her on account of the common law presumption, that she acted under his coercion or by his command. On the contrary, I conclude that a married woman, thus asserting her own rights or claims, acts at her peril like other persons under the same circumstances; that she is liable, and that her husband is not liable, and that it is not the validity but the nature of her claim which becomes the test of her responsibility and of his exemption. The husband in this case is not liable at all as husband, but can only be charged to the extent that he has interfered with the plaintiff's rights. I do not mean to say, that there is not evidence in the case fit for the jury to determine, whether he did not so far intermeddle or set on the wife as to make him liable; but the jury has never passed upon that question. The wife herself, is liable, upon her refusal to deliver, and claim to hold the property for her debt. She is liable also for the seizure under the first void attachment. The man, Lemon, denies that he refused to let plaintiff take the prop Holdrige v. Scott. erty when demand was made, and the plaintiff gave contrary evidence. This dispute was for the jury to settle. It the decision here was to turn exclusively on the legal points raised by the exceptions, perhaps a new trial should be denied, but this is a case with exceptions, and the granting a new trial on a case is somewhat in the discretion of the court. In order that the case may be retried, according to the rules above indicated, I think a new trial ought to be had. The order granting a new trial is, therefore, affirmed with costs. Order affirmed. IRA HOLDRIGE, Jr., administrator, &c., Appellant, v. MARY (GENERAL TERM, EIGHTH DISTRICT, NOVEMBER, 1869.) Executors and administrators suing in their representative character, unnecessarily, in cases where the cause of action (if any) accrues to them in their individual right, and, failing to recover, are personally liable to the defendant for costs. Where the record shows that the cause of action (if any) arose after the death of the testator or intestate, such right of action vests in the executor or administrator in his private right, and he cannot in such case escape the penalty of costs by suing in form, in his representative capacity, unnecessarily, if he fails to obtain judgment. Where the record shows the action to be maintainable (if at all) in the individual right, no motion is necessary to charge such plaintiff with costs; judgment therefor may be entered, of course, as in ordinary cases, upon the clerk's taxation. Section 317 of the Code has not changed the former law of personal liability of executors' and administrators plaintiffs, for costs, in actions unnecessarily brought by them in their representative capacity where they might have sued in their individual right, and judgment passes against them. The case of Woodruff, administrator, v. Cook (14 How., 481), considered to be an erroneous construction of the Code upon this subject. THE facts appear in the opinion of the court. D. H. Waite, for the appellant. D. H. Bolles, for the respondent. Present-DANIELS, MARVIN and LAMONT, JJ. 1 303 88h 130 |