Grant agt. Power and Rapelje. SUPREME COURT. GILES P. GRANT agt. MELVIN POWER and JOHN RAPELJE. A sham answer must be understood now as a sham plea was formerly, which was a special plea, false and specious-one which set up new matter. Therefore, an answer which merely denies the allegations of the complaint, but sets up no new matter, cannot be stricken out as sham or false. The Code confers on the court no new power in reference to striking out sham and false defences. Its terms are to be construed with reference to the legal language in use when it was adopted. Monroe Special Term, June, 1856. MOTION to strike out the answer of defendants as sham and false, on affidavits of its falsity. The action was upon two promissory notes. The complaint was not sworn to. The answer consisted of a simple denial of each and every allegation contained in the complaint. LYSANDER FARRAR, for plaintiff. By the court-E. DARWIN SMITH, Justice. When this motion was made at the last special term, I intimated that in my opinion the motion ought not to be granted; and stated that on the question presented I concurred fully in the views expressed by Judge MITCHELL upon a similar motion in 7 Howard, 171; S. C., in 14 Barbour, 393. But, it being suggested that my brethren had held otherwise, separately, and at general term, I retained the papers to confer with them before deciding the motion. I find that Judge STRONG has granted motions like this, and has struck out a general denial as false and sham on several occasions, and that his decision in one case was affirmed at general term. Judge WELLES has decided otherwise at special term, since the decision at general term, and considers that case as governed by other, and its own particular circumstances. Smith agt. Scribner. Judge STRONG, on the contrary, adheres to that decision, and follows it. Judge WELLES now concurs with me in the opinion that the motion in this case ought not to be granted, and that to grant it is virtually to repeal subdivision 1 of section 149 of the Code, which expressly gives the right to put in such answer. The power of this court to strike out false and sham pleas, was frequently exercised, and was unquestioned before the Code. The Code confers on the court no new power on the subject. Its terms are to be construed with reference to the legal language in use when it was enacted. Sham pleas, even at that time, were understood to be special pleas, false and specious. I concur in the views of Judge HARRIS, in 7 Howard, 59, White agt. Bennet. A sham plea must be one which sets up new matter; not a plea merely denying some allegation of the complaint. (Benedict agt. Tanner, 10 Howard, 455; Godell agt. Robinson, 1 Abbott, 116; Winne agt. Sickles, 9 Howard, 217.) The motion must be denied; but without costs. SUPREME COURT. STERLING SMITH agt. J. F. SCRIBNER. Where a married woman contracts a debt, founded upon her separate property, with the approbation and consent of her husband, the creditor has a right, at his election, of suing both, or either one of them-both, if he wishes to reach the wife's property; and the husband alone, if it is desired to bind him personally. New-York Special Term, April, 1856. THIS is an action against a husband, for the alleged debt of his wife, arising out of a sale of goods which were delivered at a hardware store kept by the wife in Elmira. Smith agt. Scribner. J. BRICE SMITH, for plaintiff. S. G. HATHAWAY, for defendant. ROOSEVELT, Justice. The wife, it appears, had a separate estate, both real and personal, of her own, amounting to $50,000. In 1851, with the approbation of her husband, she bought out the stock of a firm in Elmira, and set up, and has ever since continued, the business of a hardware merchant in her own name, her husband, by her appointment, acting as her agent in making purchases as well as sales. The goods in question were sold in 1854, after Mrs. S. had been carrying on business in the manner described for about three years. They were charged by the plaintiff, in his books, to "J. F. Scribner, agent;" although the purchase was in fact made by one Cole, a clerk in the store of Mrs. S., and as her agent, he taking the goods to the store, where they were received as part of the stock in trade to be disposed of in the usual course of business. Does such a purchase bind the husband? Or is the remedy against-and exclusively against-the wife? The general rule undoubtedly is, that where a wife, although in her own name, makes an executory contract, with the consent of her husband, the transaction binds him, and not his wife. Equity, however, makes an exception in the case of married women, who have separate property-treating them, to the extent of such property, as single women. (Jaques agt. The Methodist Church, 17 Johns. Rep. 548.) The statutes of 1848 and 1849 confirm, and in some degree extend, the exception, making all the property of married women, whether real or personal, and whether settled on them or not, their sole and separate estate, "as if they were single females." One of the essential attributes of property, as recently held by the court of appeals in the so-called liquor cases, whether such property be the property of single males or single females, is the right of sale and exchange. And is not a purchase made by a wife, in respect of her separate estate, a mere contract in effect to exchange so much of that estate for the goods pur Smith agt. Scribner chased? And if so, is it not a contract, which, under both the statute and the equity rule, she has the power to make? The contract may not bind her personally, but it must, it would seem, bind her personalty. How else can she be said to possess and enjoy the right, not only of holding, but of disposing of her property "in the same manner and with the like effect as if she were unmarried." To buy the property of another, as already suggested, is one of the modes by which the purchaser, to the extent of the stipulated price, disposes of his own. Although, however, the wife, as a necessary incident to the exercise of her right, may contract a qualified obligation, does it necessarily follow that the husband is in no case bound? Can a husband carry on business in the name of his wife, buying and selling "as her agent," and himself "having charge of the store," and participating directly or indirectly, as we are bound to presume, in all the gains, without incurring any liability? The old equity rule certainly did not go that length. And the new statute, as we all know, and as its title imports, was enacted not to diminish the liabilities of married men, but "for the more effectual protection of the property of married women," -its leading feature being to secure to married women "the sole and separate enjoyment of their property, and to their husbands the sole and separate enjoyment of their debts. In the session of 1853, the legislature, it is true, corrected in part this seeming anomaly; but the correction, in express terms, was confined to debts contracted before marriage." Where a wife, then, during marriage, contracts a debt with the consent and approbation of her husband, and especially where, as in this case, she contracts it with the direct agency and participation of her husband, the creditor, as it seems to me, has the election of suing both, or one-both, if he wishes to reach the wife's property; one, the husband alone, if it is desired to bind him personally. Judgment for plaintiff for $110.86, with interest from 15th April, 1854, and costs of suit. Buzzard agt. Knapp. SUPREME COURT. SALLY BUZZARD agt. JOHN KNAPP. A complaint in an action for a breach of promise of marriage, alleging, in substance, in reference to a promise, that, in a conversation between the parties at a time and place specified, the plaintiff asserted, among other things, that the defendant had promised to marry her; and that, at the same time and place, the defendant said to the plaintiff, he acknowledged he had done wrong in promising her as he did, and hoped she would forgive him; but if he should marry her, as they had talked, and she go to his house, it would make both miserable for life: and further alleging, that the defendant said to the plaintiff, in reply to her entreaties, she must try to forget it, and acknowledged he had done wrong, and that he was sorry for it, without otherwise averring a promise, does not state facts sufficient to constitute a cause of action. Monroe Special Term, Oct., 1855. SIMEON B. JEWETT, for plaintiff. T. R. STRONG, Justice. The complaint in this case, is a palpable violation of the provisions of the Code, prescribing what a complaint shall contain. It does not contain "a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition;" but, on the contrary, sets forth matter of evidence, without any general fact essential to the action, unless it is done by argument and inference. The court, on motion, under § 160 of the Code, would have stricken out the largest portion of the complaint, and directed that the residue be corrected and put in legal form; but on demurrer for the reason that the complaint does not state facts sufficient to constitute a cause of action, the only inquiry is, whether facts enough to support the action are stated in any form-whether plainly and concisely without unnecessary repetition, or argumentatively and inferentially, and in connexion |