The case was thereupon adjourned for further hearing before Mr. Justice Swayne at Newport, R. I., and was heard on printed briefs.

William Jennison, for proponents:

1. The proceeding known as the "probate of a will," is not included in the cases enumerated in any of the acts of Congress; it is a proceeding in rem, belonging peculiarly to the jurisdiction of probate courts and subject to the revisory power of state courts; it was not matter of common law or equity cognizance, but appertained exclusively to the canon of ecclesiastical law. The language of the act of 1875 is: "Any suit of a civil nature at law or equity * ** in which there shall be a controversy between citizens of different states," may be removed, etc.

2. The appeal from the probate court to the state court, and the issues ordered therein, did not constitute a suit inter partes; the order ap. pealed from was the "probate of the will,” and the issue in the appellate court was the same as that in the probate court.

3. If the United States Circuit Court have jurisdiction the petition and bond for removal should have been filed in the court of original jurisdiction, to wit, the probate court; otherwise the United States Court could not, according to the act, "proceed in the same manner as if it had been originally commenced in the United States Court," and which could not be done without setting aside the decree of the probate court. Causes are not removed to the United States courts for review, but for trial.

4. The act of 1875 requires that the suit be between citizens of different states, and contemplates the removal of the entire suit. Part of the defendants were citizens of Michigan, and they did not join in the petition for removal.

Henry M. Duffield, for contestants:

1. Under the statutes of Michigan the proceeding in the probate court is not such a suit in a state court as the removal acts contemplate; proceedings in that court upon probate of a will are initiatory only; they are not between parties; it is the duty of the court when a will is delivered to it to appoint a time and place of hearing; the proceedings may be promoted by those having no pecuniary interest or by persons upon whom the law, on account of circumstances, shall have cast the duty. No petition for a probate is necessary; no proponents need ask to set the court in motion; it is the duty of the court to sua mote; a proceeding may go to a hearing and determination in the probate court without the presence of any of the parties before the court, either proponents or contestants, but upon appeal under the statute giving the right of appeal to any person aggrieved, the case becomes one inter partes. The only parties are the proponents and contestants; creditors are not interested; the proponents have no right to charge the expenses of maintaining the will against the general estate. The issue in the circuit court is upon the allegations of the proponents and the denial of the contestants; the question involved is the validity of the will, and the case falls fairly

within the language of Mr. Justice Field, in Gaines v. Fuentes, 92 U. S. 10, 3 Cent. L. J. 371. "But whenever a controversy in a suit between such parties, i. e., citizens of different states, arises respecting the validity or construction of a will, there is no more reason why the federal court should not take jurisdiction of the case than there is that it should not take jurisdiction of any other controversy between the parties."

2. The non-resident contestants took their separate appeal from the order of the Probate Court. The second sub-division of section 539, United States Revised Statutes, is not repealed by the act of March 3, 1875. New Jersey Zinc Co. v. Trotter, 17 Am. Law Reg. 376. Under this act their appeal may be removed upon the petition of the contestants who are not citizens of Michigan, and there can be a final determination of the controversy, so far as concerns them, without the presence of the other contestants.

3. The objection that the petition was filed too late has been waived by the proponents asking and obtaining a writ of certiorari to the state court and causing it to be served. This objection as to the time of filing a petition has been repeatedly held to have been waived by taking testimony or taking any steps in the cause after its removal, and in Jones v. Andrews, 10 Wall. 327, by a motion to dismiss the bill for want of jurisdiction in the court, and also want of equity in the bill. Mr. JUSTICE SWAYNE:

The case was fully and ably argued before me upon both sides. I have examined it with care, and my conclusions are as follows:

1. Aside from other objections, the application for the removal of the case to the federal court was made too late. It should have been made before the decree of the probate court was entered, and the appeal taken to the higher state court. Thereafter, the right of removal was at an end; the delay was fatal. Such an application can not be made to an appellate court. Stevenson v. Williams, 19 Wall. 572; Vannevar v. Bryant, 21 id. 41; Lowe v. Williams, 94 U. S. 650.

There was no waiver of this objection by the proponents. The order for the issue of a writ of certiorari to bring up the full record was made by the federal court sua sponte. The proponents were n no wise actors touching its issue.

2. The proponents are all citizens of Michigan. There were six contestants in the probate court. Four of them were citizens of Michigan, and two of other states. All of them appealed to the state circuit court. The four who were citizens united n one appeal, and the two not citizens in another. The latter only petitioned that court for the removal of the case, and gave the requisite bond. The only question presented in the appellate court was as to the mental capacity of the testator, and the validity of the will. The court directed the same issue to be made upon each appeal as if they were separate cases. Upon an application to the supreme court of the state for a mandamus to vacate an order of consolidation made by the ftate circuit court, it was held that the two appeals constituted inherently and necessarily but one case, and mus

necessarily be tried together, and that hence no order of consolidation was needed. This was obviously correct. The case, as presented, was a unit and indivisible. The question to be tried was a single one, and affected alike all concerned, by whomsoever raised. The result must necessarily be final and dispose of the entire controversy. Lingan v. Henderson, 1 Bland, Ch. 236.

If the removal was well made, the anomaly will follow that each court may try the validity of the will at the same time independently of the other, in the absence of indispensable parties, and opposite results may be reached. In one court, the will may be held valid, and invalid in the other, and for this state of things there can be no remedy. For the purposes of this ease it may be conceded that the 12th section of the act of 1789, and the acts of 1866 and 1867, re-enacted in the Revised Statutes of the United States, section 639, clauses 1, 2, 3, are not repealed by the act of 1875.

(a) The case was not removable under the section first named, because it was always held under that provision that all the plaintiffs must be citizens of the state where the suit is brought, and all the defendants citizens of other states. Dillon on Removal, pp. 17 and 18.

(b) Nor under the act of 1866, because it is not a suit brought "for the purpose of restraining or enjoining" the contestants. Nor can there be " a final determination of the controversy so far as concerns them, "without the presence of other defendants in the cause." Shields v. Barrows, 17 How. 130.

(c) Nor under the act of 1867, commonly known as the "Prejudice and Local Influence Act," because the removal was not applied for upon either of those grounds, and neither was alleged by the petitioners.

* * *

(d) The act of 1875: This act contains two clauses proper to be considered. It declares, (1) that " any suit" "in which there shall be a controversy between citizens of different states," etc., "either party may remove said suit into the Circuit Court of the United States." Further: (2) "And when in any suit," etc., there shall be a controversy which is wholly between citizens of different states, and which can be fully decided as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the Circuit Court of the United States," etc.

Viewing the first of these extracts in the light of the past adjudications, and in the absence of any expression from the Supreme Court, I feel constrained (whatever might be my judgment under other circumstances,) to hold that the term "party" is collective, and means all the plaintiffs and all the defendants, and that all on each side must be "citizens of different states" from those on the other side. See Dillon on Removal, pp. 29, 30. This latter construction of the phrase "party derives support from the second paragraph quoted. In regard to that paragraph it is sufficient to say that this "controversy " is not "wholly between citizens of different states," and can not be "fully determined as between" the parties before the

court. There are other contestants whose presence is indispensable. They are not, and it is believed can not be, present as parties in this litigation in the Federal tribunal.

3. A Federal court has no jurisdiction in cases of proceedings to establish a will. In Gaines v. Feuntes, 92 U. S. 10, 3 Cent. L. J. 371, the Supreme Court said: "There are, it is true, in several of the decisions of this court, expressions of opinion that Federal courts have no probate jurisdiction, referring particularly to the establishment of wills, and such is undoubtedly the case under the existing legislation of Congress."

By this ruling I am bound, and it is conclusive of the case. See, also, Broderick's will, 21 Wall. 504; Du Vivier v. Hopkins, 116 Mass. 125; Yonley v. Lavender, 21 Wall. 276; Tarver v. Tarver, 9 Pet. 174; Fouvergne v. City of New Orleans, 18 How. 470; 22 How 473, 478. Whether the proceeding here in question is a "suit" within the meaning of the several removal acts, is a question not necessary to be considered.

BILLS OF EXCEPTIONS.

The note referred to in the following correspondence was prepared by one of our contributing editors. When the letters were received he was in Minnesota fighting mosquitoes many happy miles from a law book. He has returned home, and we submit the letters with his replies:

I.

To the Editor of the Central Law Journal:

The opinion in the case of Jefferson City, etc., v. Opel, Supreme Court of Missouri, annotated in 7 Cent. L. J., No. 3, p. 46, in refusing to recognize skeleton bills of exception, seems to discredit the following passage in the rules of the supreme court. Vol. 64, Mo. Reports. Rule 13. "No clerk shall insert in the transcript any matter touching the organization of the court, or any mention of any continuance, motion or affidavit in the cause, unless the same be specially called for by the bill of exceptions." The opinion holds that a mere call for the motion is insufficient, and that the motion itself must be incorporated bodily in the bill.

Glendower-"I can call spirits from the vasty deep." Hotspur-"Why, so can I; or so can any man, But will they come when you do call for them?"

Hannibal, Mo., Aug. 3, 1878.

T. H. B.

We do not see that the decision referred to by T. H. B. discredits any rule of the supreme court. The copying of motions and affidavits into a transcript is specially called for when they are incorporated in a bill of exceptions and made a part of the record; until that has been done the copying of them is wholly uncalled for. We can assure T. H. B. that, when so called, they will come. II.

To the Editor of the Central Law Journal:

In the issue of your journal of July 19, 1878, you published the opinion of the supreme court in the case of City of Jefferson, to use P. R. R., v. Opel. In your comments on the opinion you say: "The rule an

nounced in the foregoing case seems to us to be the better and safer one," etc.-that is, if I understand you, that, in making out a bill of exceptions, the motion for a new trial must be copied at length in the bill before it is signed by the judge, and so with every other motion, and paper, etc., made a part of the bill of exceptions, and that a memorandum for the clerk, as "here insert," is not sufficient. In other words, there is no such thing known to the law as a "skeleton bill of exceptions." If I am correct in my conclusions as to your views as expressed in the note to the aforesaid opinion, will you be kind enough to give me your construction of section 7, p. 419, and section 10, p. 420, Wagner's Statutes (Mo.), entitled Courts of Record? What is it the clerk is to write, or cause to be written out at full length, in the bill of exceptions? J. R. EDWARDS.

City of Jefferson, Mo., Aug. 9, 1878.

66

It is very evident that Mr. Edwards did not understand us. We nowhere intimated in the note that there is no such thing known to the law as a skeleton bill of exceptions." On the contrary, the note was principally devoted to showing that in the Supreme Court of the United States, and in the courts of many of the states, a skeleton bill was recognized as valid. We expressed the opinion that the rule announced by the Supreme Court of Missouri was the better and safer one. We are still of that opinion. An examination of the adjudged cases will, or ought to, convince any one that any other course is uncertain and unsafe. The courts of most of the states recognize skeleton bills as valid, but none of them, so far as we know, sustain so fleshless a skeleton as was preserved in the case to which Mr. Edwards refers. Indeed, we do not know that the supreme court of this state has ever held that a skeleton bill was necessarily invalid. When the court says that" nothing but a bill of exceptions can make motions a part of the record, and unless incorporated bodily in the bill, they can not be noticed by this court,' we do not understand the court to require the motion to be "copied at length in the bill." Incorporated does not mean copied. As we understand the force of the English language, a motion may properly be said to be incorporated bodily in a bill of exceptions when it is united with and made a part of it. The rule sustained by the weight of authority is well stated in the syllabus prefixed to the case of A. & N. R. Co. v. Wagner, 19 Kas. 335: "While what is familiarly known as a skeleton bill-that is, a bill which provides for the subsequent copying by the clerk into it, and as a part of it, some paper or document-is allowed, yet to make such a bill valid and complete, these rules must be regarded: 1st. The bill, in referring to such paper or document, must purport to incorporate it into and make it a part of the bill; a mere reference to it, although such as to identify it beyond doubt, or a statement that it was in evidence, is not sufficient. 2d. The document must itself, at the time of the signature of the bill, be in existence, written out and complete. 3d. It must be annexed to the bill, and referred to as annexed, or it must be so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt when found in the record that it is the one referred to in the bill; and these means of identification must be

obvious to all, so that any one examining the record can know what document is to be inserted, or after insertion that the clerk has made no mistake." Measured by these rules, Mr. Edwards will see that his bill was quite too much of a skeleton.

The Supreme Court of Missouri requires papers sought to be made a part of a bill of exceptions to be incorporated in it bodily; the Supreme Court of Kansas, and the courts of a majority of the states, permit them to be incorporated by such reference and identification as to exclude all doubt of their identity. The trouble with the rule which allows a paper to be made a part of a bill by reference is that it is necessarily uncertain. What is such reference and identification as will exclude all doubt has given rise to a great deal of trouble; the requirements of some of the courts are much more stringent than those of others. The Missouri rule is simple and incapable of leading to confusion.

We are referred to two sections of the statutes of this state which are supposed to be in conflict with the decisions under consideration. It is very clear to us that they are not. Just what application section seven has to the question in controversy, we are unable to see. It simply requires the clerk to attach together the pleadings and other papers forming the record, within thirty days after the expiration of the term at which final judgment was rendered. This constitutes the judgment roll. Papers of themselves, forming a part of the record, have no place in a bill of exceptions.

Section ten is as follows: "When any bill of exceptions shall have been allowed and signed, the clerk of the court shall, within the same period, cause the same to be written out at full length, unless previously done, and attach such bill of exceptions to the roll as part thereof." As we understand this section, it fully sustains the position taken by the Supreme Court of Missouri. If any paper made a part of the bill has not been copied into the bill at length, but has been incorporated in it by attaching it to the bill, with proper references, then it becomes the duty of the clerk to copy such paper into the bill. The clerk is directed to copy the bill; he is not directed to copy a paper not a part of the bill, although referred to therein. M. A. L.

SELECTIONS.

ACTIONS FOR HARBORING A WIFE.-A very unusual case came before the Preston Sheriffs' Court last week. A farm laborer sued a farmer to recover damages for the loss he had sustained through the defendant harboring his (complainant's) wife, who was defendant's sister. Evidence was given for the defense that the plaintiff had grossly abused his wife, that he had been three times summoned for assaults upon her, that he had been bound over for threatening to shoot her, and that the defendant was only offering brotherly protection; and the jury returned a verdict for one farthing damages. Judgment is stated to have been allowed to go by default to save expenses, but it is clear that if the facts alleged for the defense were satisfactorily proved no action could have been maintained; for, as Lord Kenyon pointed out in Philp v. Squire, 1 Peak, 114, if, where the wife is received from motives of hu

manity, the action could be supported, the most dangerous consequences would ensue, for no one would venture to protect a married woman. And it appears to be sufficient to prove that the wife represented that she was ill-treated by her husband; it is of no consequence whether her representation was true or false. In a subsequent case of Berthon v. Cartwright, 2 Esp. 480, the same learned judge ruled, that if a husband ill-treats his wife so that she is forced to leave his house through fear of bodily injury, "a person may safely, nay honorably, receive and protect her."-[Solicitors' Journal.

CONCERNING COSTS.-A story is told by a friend of Campbell the poet, that when visiting at the house of the family, he and Thomas, then about thirteen, were speaking of getting new clothes, and descanting in great earnest upon the most fashionable colors. Tom was partial to green, the other preferred blue. “Lads,” said Campbell's father, in a voice that fixed their attention, "if you wish to have a lasting suit get one like mine." They thought he meant one of a snuffbrown color, but he added, "I have a suit in the court of chancery, which has lasted thirty years, and I think it will never wear out" Playing upon the same subject, of the traditional length and consequent expensiveness of chancery cases, Swift, in the person of Gulliver, informed the King of Brobdignag about his father having been ruined by a suit in chancery, in which after twenty years' litigation, he had obtained a decree in his favor with costs. Now-a-days these anecdotes only remind one of what has been. Suits in chancery are now disposed of as expeditiously as actions at law, and if, in any instance, they seem to be longer, it is usually because these suits are manysided, involve various issues between the different parties, and contain sufficient material to form the staple of half-a-dozen ordinary common law actions. However, costs are always a subject of much interest both to the suitor and his professional adviser. Mr. Jacob's happy thought about the pertinacity of counsel has been embalmed in one of the judgments of James, L. J. "I was informed," he says, "forty years ago, by the late Mr. Izech, that questions in this court, with respect to the importance attached to them, and the zeal with which they were argued, are in the following ratio:- Practice, first; costs, second; and merits, third and last;" Attorney-General v. Earl of Lonsdale, 19 W. R. 235-[ Canada Law Journal.

NOTES OF RECENT DECISIONS.

REMOVAL OF CAUSES - Taylor v. Rockefeller. United States Circuit Court, Western District of Pennsylvania, 35 Leg. Int. 284. Opinion by Mr. Justice STRONG. 1. In an application for removal of a cause from a state to a federal court, the petition and bond must be filed "before or at the term at which the cause could first be tried and before the trial thereof," 2. It is the federal court and not the state court that has the power to adjudge whether the case is a proper one for removal under the act of Congress. 3. Under the act of 1875, although some of the formal or nominal plaintiffs and defendants may be citizens of the same state, still if it is shown that it is a controversy wholly between citizens of different states, and can be fully determined as between them, then it is a cause that can be removed to the federal court.

SEDUCTION-LOSS OF SERVICE-PAROL CONTRACT. -Mohry v. Hoffman. Supreme Court of Pennsylvania, 6 W. N. 49. PER CURIAM. A verbally agreed with B that his daughter should live in B's family as servant, until her arrival at eighte en years of age,

when B was to give her an outfit, and in the meanwhile was to provide the girl with board, clothing and schooling, and, at a proper time, send her to the minister for confirmation; A reserved the right to call his daughter home, in case of sickness, to help the family. The girl, while in B's service, was seduced by C, his son. Held (affirming the judgment of the court below), that this parol contract did not transfer the father's right to service beyond recall, and that hence an action for seduction per quod servitium amisit could be brought by A against C.

TRUST ESTATE - POWER OF CESTUI QUE TRUST TO ALIEN PURCHASER TITLE.-Read v. Power. Supreme Court of Rhode Island, 17 Am. L. R. 561. Opinion by POTTER, J. Where the cestui que trust of real estate has an absolute interest without any control in the trustee, the former may, as a general rule, alien his estate. Where the cestui has been in possession a long time, the court may direct the jury to presume a conveyance from the trustee to perfect the title, or may itself act upon the same presumption. But where the legal title is in a trustee, though only for a naked trust to convey, a purchaser from the cestui que trust will not, in the absence of an express agreement to accept the equitable title only, be compelled, on a bill for specific performance to accept the title from the cestui unless it is perfected by a conveyance of the legal estate from the trustee. CONVERSION HORSE HIRED TO GO TO G. BUT DRIVEN FARTHER-LOSS-ACTION-INFANCY-PROMISSORY NOTE.-Ray v. Tubbs. Supreme Court of Vermont, 6 Rep. 318. Opinion by ROYCE, J. Defendant, an infant, hired a horse of plaintiff, agreeing not to drive it beyond G, but soon brought it back saying it was sick, and exchanged it for another, which he intended to drive to S, a place beyond G, but he said nothing to plaintiff about it, and plaintiff understood that he was not to drive it beyond G. Defendant drove it beyond G, and so overdrove it that it died. Held, that defendant took the second horse subject to the conditions as to the distance to which he should drive it under which he took the first one, and that by driving it beyond G he rendered himself liable in tort for the damage resulting therefrom. In satisfaction for the damage so resulting, defendant, being still under age, gave plaintiff his promissory note, upon which, after defendant became of age, plaintiff brought assumpsit, to which defendant alleged his infancy. Held, that defendant was liable upon the note to the same extent that he would have been in an action on the cause that formed its consideration, and that his infancy was no defense.

PRINCIPAL AND AGENT- RIGHTS AND DUTIES OF BROKERS-WHEN NON-DISCLOSURE OF PRINCIPAL DOES NOT RELIEVE FROM LIABILITY-DELIVERY OF BONDS-WHAT NECESSARY TO CONSTITUTE.-Maitland v. Martin. Supreme Court of Pennsylvania, 6 W. N. 52. Opinion by MERCUR, J. In 1873, B, a broker, purchased for A, and at her request, five South Carolina bonds of $1,000 each. A permitted the bonds to remain in B's possession until 1875, when she directed him to sell them at a certain price. B effected the sale through his New York correspondent, C, and received the latter's draft for the net proceeds of all five bonds. Before A called for the money, C notified B that three of the bonds, received by him for his New York purchaser, had been found to belong to a num ber of bonds repudiated by the legislature of South Carolina in 1874, and by ruling of the New York Stock Board made "no delivery." B, at his own expense, replaced the three non-fundable bonds with others, and received back the former, and offered to deliver them to A and account with her for the proceeds of the two valid bonds. This A declined

to do, and brought suit against B for the whole amount originally received by him from C. Held, that A could not recover, and must bear the loss, the bonds having depreciated while owned by her; and B having acted strictly in the line of his duty as agent in perfecting the sale and incurring the damage. Held, further, that the non-disclosure of A by B to C or his purchaser did not place the sole liability upon B. It required a delivery or readiness to deliver the bonds of the kind sold, according to the contract to complete the transaction between the two agents * * In fully perfecting a sale, B was strictly within the line of his duty.

SUIT AGAINST STATE APPEARANCE BY ATTORNEY-GENERAL-RES ADJUDICATA.—Adams v. Bradley. United States Circuit Court, District of Nevada, 2 Pac. Coast L. J. 9. Opinion by SAWYER, J. 1. A state can not be sued in its courts without its consent. 2. The appearance of the district-attorney or the attorney general of the state, on behalf of the state, without express authority of law, does not give jurisdiction over the state as defendant in the action. 3 Section 2778 compiled laws of Nevada does not authorize the attorney general to so appear for the state generally in an action against its officers in their individual capacity, as to make it a party to the action, and conclude it by the judgment. 4. Treadway sued Slingerland, in his individual capacity, to recover possession of lands upon which the Nevada State Prison is situated. Slingerland, who was at the time lieutenant-governor of the state and ex officio warden of the state prison, set up as a defense title in the state, and that he was in possession under the state as warden of the state prison and not otherwise. O. H. Clarke, who was then attorney-general of the state, appeared as attorney for the defendant without using his official designation in the signature to the pleadings. Treadway recovered judgment. In a sub. sequent action by the successors in interest of Treadway against the governor, warden-the successor in office to Slingerland-and other officers of the state, to recover the same land: Held, that the judgment in said case of Treadway v. Slingerland did not conclude the state or affect its title.

INSURANCE-ULTRA VIRES-MUTUAL COMPANIES RIGHT TO ISSUE POLICIES UPON "ALL CA H PLAN"- STOCK POLICIES AND MUTUAL CASH POLICIES DISTINGUISHED.-Schimpf v. Lehigh Valley Mut. Ins. Co. Supreme Court of Pennsylvania, 6 W. N. 23. Opinion by PAXSON, J. 1. It is not ultra vires for a mutual insurance company to issue policies upon the "all cash plan" free from assessment and liability, and to pay for losses upon such policies by assessments levied upon those holding policies paid for by premium notes and assessments thereon. 2. The directors of the company have power to levy such an assessment after a general assignment by the company for the benefit of creditors. 3. An insurance company by its charter was limited to a strictly mutual business. It issued two classes of policies, the first paid for by an all cash premium, and not subject to assessment, the second, partly by cash, and partly by an assessable premium note. S insured with the company upon the latter plan, paying ten per cent. cash and giving a premium note for the balance. The company executed an assignment for the benefit of its creditors, and soon after its directors levied an assesssment upon S for the payment of losses, of which $30,000 were on cash policies, and on premium-note policies $7,000. In an action by the company against S to recover the amount of his assessment: Held, that the company was empowered under its charter to issue cash policies, as the cash premium represented the insured in the common fund, as well as the premium note. 4.

The directors had power to levy an assessment upon premium notes, after an assignment for the benefit of creditors. 5. Mutual cash policies distinguished from stock policies.

MARRIED WOMEN-STATUTE-CONTRACTS BETWEEN HUSBAND AND WIFE.-Jenne v. Marble. Supreme Court of Michigan, 6 Rep. 316. Opinion by CAMPBELL, J. Under the statutes of Michigan in relation to married woman, husband and wife can not contract with each other in any larger sense than they could formally in equity. Their contracts when valid may be enforced at law. This was an action of assumpsit, by the assignee of a husband against his wife, on personal cov. enants for the payment of rent embraced in a lease from the husband to the wife, and also for the value of certain farm live stock claimed to have been sold to her. The court below held the transaction invalid, and plaintiff appealed. Under the statutes of Michigan, a wife has no power to contract except in regard to her separate property. The present contract, if valid, is made so because the leasehold interest for which she bargained could be so regarded, and also the personal property which it is claimed she purchased. This case is without any clear precedent, and must depend upon whether it is covered by principles which have been determined. It has been held that a contract for the purchase of property may be lawfully made by a married women, the procurement of property which she is toown being equivalent to the creation of a separate interest. Tillman v. Shackleton, 15 Mich. 447; Campbell v. White, 22 Ib. 178; Powers v. Russell, 26 Ib. 179; Rankin v. West, 25 Ib. 196. The constitution and statutes are clear against her right to make a mere personal obligation unconnected with property, and not charging it; so that she can not become personally bound jointly with her husband, nor as a surety, by mere personal promise, De Vries v. Conklin, 22 Mich. 255; West v. Laraway, 28 Ib. 464; Emery v. Lord, 26 Ib. 431. She may receive a gift of land directly from her husband as the statutes now stand: Burdeno v. Amperse, 14 Mich. 94; but she could not do so until the statute of 1855 gave her large powers of contracting. Ranson v. Ransom, 30 Mich. 328. She may also make gifts and transfers to her husband. Penniman v. Perce, 9 Mich. 509; Durfee v. McClurg, 6 Ib. 223. But the law has not disregarded the fact that marital influ ence places married persons in different relations from others, and prevents their dealings from being gov erned by the same rules which usually require others to abide by bargains not tainted with distinct evidence of fraud and misconduct. Where a husband gets the advantage, it requires no great positive evidence to establish the invalidity of his bargain. Witbeck v. Witbeck, 25 Mich. 439; Wales v. Newbould, 9 Ib. 45: Stiles v. Stiles, 14 Ib. 72. The act of 1855 does not abrogate all the common law or of the statutes restraining married women from contracting, and it does not profess to change the powers of husband and wife to deal with each other, except so far as such a change is implied. So far as it fairly extends it does so operate in some important particulars as held by this court heretofore. But we have not held, thus far, that husband and wife may contract with each other generally, nor has it been heretofore decided that they could now make contracts enforcible at law, which could not have been enforced in equity formerly concerning a wife's separate estate. We have found nothing authorizing the inference that a husband could sue a wife at law or in equity to enforce a purely executory contract. The case of Livingston v. Livingston, 2 Johns. 537, sustains no such doctrine. The bill in that case, instead of seeking to enforce the contract, treated it as void. In Milnes v. Busk, 2 Ves. Jr. 488, it was emphatically denied that husbands and wives could contract as other persons might concerning the wife's