Bissell, J. H.

English

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THEAMERICAN LAW REGISTER,MARCH 18T4.MARRIED WOMEN AS BANKRUPTS.THE much-vexed question of the rights and liabilities of mar-ried women seems to take a new phase in the development of theBankrupt Act. The act seeks to establish "a uniform system ofbankruptcy throughout the United States;" but an examination ofthe cases under it concerning married women, and the reasons andprinciples applicable to them, show that so far from the systembeing uniform in this regard it varies with the statutes anddecisions of every state.In New York, where, since the statutes of 1848 and 1849 and.he more recent amendments, it is well known that a marriedwoman may be sued at law upon her contracts, it has been heldthat she is within the meaning of the act, and can be declared abankrupt. The Court of Appeals of that state, after much dis-cussion and consideration, has finally arrived at the conclusion thatafeme covert is bound by all her contracts made in her separatebusiness, or in relation to her separate estate, and that such con-tracts can be enforced at law or in equity, as the case may be,Corn .ELhange Ins. Co. v. Babeock, 42 N. Y. 642, and judgmentmay be given against her in the -ame manner as against other pcr-sons; Hier v. Staples, 51 Id. 136; First Nat. Bank of Canan-daigua v. Garlinghouse, 58 Barbour 61b.And although the question has never been elaborately argued ordecided in the Federal courts of that state, it seems to have beentaken for granted that they could be proceeded against in bank-VOL. XXII.-9MARRIED WOIEN AS BANKRUPTS.ruptcy, a,,d such has been the practice: in re Mfary A. O'BrienBank. Reg., Supplement 38; Graham, Assignee, ft., v. Srtark etal., 3 Bank. Reg. 82.But under the rule in Yale v. Dederer, 18 N. Y. 265, and 22Id. 450, at that time the leading case on the subject in thatstate, that in a iuit against a married woman upon a promissorynote it must either appear upon the face of the note that it washer intention to bind her separate estate, or it must be alleged thathe note was given for the benefit of her separate estate, JudgehIALL decided in In re Howland, 2 Bank. Reg. 114, that apetition in bankruptcy must follow the same principle, and thatthe allegation that the respondent had a separate estate, andintended in the execution and delivery of the notes to bind it wasnot sufficient, such intent not appearing upon the face of theinstrument, and there being no allegation in the petition that theindebtedness was of such a character as to be a charge upon herestate, he dismissed the petition with leave to amend.One of the more recent cases, Poster v. Conger, 61 Barbour145, decided at general term, maintains the advanced doctrinethat a married woman may sue and be sued upon all contracts orliabilities made or incurred in her business; that such action maybe brought in the same manner as against any other individual;that the judgment is personal, to be enforced against any propertyshe may have, liable to execution as in ordinary cases; that herobligation and liability are precisely the same as if she had neverbeen married; and that it was not of the slightest consequencethat she had no separate estate before engaging in the business inwhich the debt was contracted, nor that the debt was not con-tracted for the benefit of her separate estate. In any place wherethis should be the settled law, there certainly could be no objectionto the jurisdiction of the bankrupt court.It was upon the same principle announced by Judge BLATCH-FORD, though not carried to the same extent, that Judge GRE-SHAM decided the recent case In re RacheZ Goodman, reported inthe " Chicago Legal News," for October 1st 1873. That was apetition in the usual form upon an indebtedness for goods soldand delivered, but containing no special allegations other thanthat the respondent was a married woman, engaged in busi-ness in her own name; but inasmuch as by the laws ofIndiana a married woman, although protected ;n her separateMARRIED WO3EN AS BANKRUPTS.estate, and authorized to carry on business if she have such estate,is not bound by her contracts except in reference to her separateproperty, and cannot enter into a partnership with her husband,nor retain her personal earnings, the court held that thepetition was fatally defective in not setting forth that she had aseparate estate. No doubt this is the correct rule, and thata petitioner must show affirmatively sufficient to bring a marriedwoman within the law. We are not aware that it has yet beenheld under any statute or in any court that a married womanis bound absolutely by all her general engagements. Though thetendency may be in that direction, that ultimate point does notseem anywhere to have been-reached.In Minnesota, where many of the common-law disabilities havebeen removed by statute, and where a married woman may,under certain circumstances, engage in business in her own nameby obtaining a license from a probate justice, in which case she isbound by her contracts entered into in the course of her business,Judge NELSoN held that a married woman engaging in businessas a member of a partnership, but without having complied withthe requirements of the statute, could avail herself of her cover-ture to defeat bankruptcy proceedings against her: In re Slichter,2 Bank. Reg. 107.The liability of married women has recently been carried inIllinois to as great an extent as in any of the United States, theFederal courts here, as elsewhere, following the doctrines and ap-plying the principles of the state tribunals.The statute of 1861, giving a married woman the right toproperty which she owned at the time of her marriage, or mightsubsequently acquire from any person other than her husband, wasthe first innovation upon the old common-law rule, and since thattime the Supreme Court of that state, through a long, course ofdecisions, commencing with .Enerson v. Clalton, 32 Ills. 493, .hasbeen gradually giving to married women more absolute controlover their separate estate and personal remedies to enforce theirrights, but at the same time retaining the old equity doctrine thatproceedings against them must be in equity. This was the rule aslate as Mitchell v. arpenter, 50 Ills. 470.But in the later case of Cookson v. Poole, reported in 5 Chi-cago Legal News 184, and under the influence of the statute of1869, giving to a married woman the right to her personal earn-MARRIED WOMEN AS BANKRUPTS.ings, the court on a review of the former decisions holds that amarried woman holding property has the legal capacity to contractin relation to it, such contracts are cognisable by courts of law,and that her estate is no longer a mere creation of equity, but anabsolute legal estate.Under this state of the law Judge BLODGETT, of the U. S.District Court for the Northern District of Illinois,.held in theKinzkead case, reported in 7 National Bankr. Reg. 439, and re-cently affirmed by Judge DRUAIMOND in the Circuit Court, that amarried woman could be a partner in business with her husband,and as such be adjudged a bankrupt; that as she had been heldout to the world as a partner equally with her husband, and as thefirm had acquired assets and contracted liabilities a court of bank-ruptcy could take jurisdiction of the whole estates, and administerthem under the law, and in this case Judge BLODGETT went further,and placed the jurisdiction of the court also upon the broaderground of a court of equity, marshalling the assets of the severalestates, and distributing them among .thelparties according to theirequitable interests, a doctrine which does not seem to have beenpreviously broached. He held that for the purposes of that casethe bankrupt court was clothed with all'the powers of a court ofequity, and that bankruptcy having intervened the court shoulddistribute the assets without reference to ithe question whether thecreditors had any further remedy to recover ahy unpaid balances.And since the above decision the Supreme Court of Illinois hasgone far beyond all its previous decisions, and in the case ofMartin v. Rob8on, 5 Chicago Legal News 304, has sweptaway most of the ancient landmarks as to the rights and liabilitiesof fenes covert, and in Illinois, so far as their separate estates areconcerned, and as to their rights and liabilities in cases of tort, theymay now be considered as occupying the legal position of femes8ole: That court, in an elaborate opinion by THORNTON, J., re-viewing all its previous decisions, declares that a married womanhas the right not only to her personal earnings, but to her time,with which she may acquire these earnings; that the husband isno longer liable for her debts before marriage, nor her torts after-wards; that she need not join her husband in suits at law forproperty, trespass or slander, but may even bring suit against him;that she may be sued at law on her contracts, and execute a validlease of her separate property ; and that, since the legal supremacyMARRIED WOMEN AS BANKRUPTS.of the husband is gone, and she has the control of her ownproperty, time and skill, she alone should be responsible forslander uttered by her during coverture, and ihat the necessaryoperation of the statute is to absolutely discharge the husbandfrom such liability.As these few scattered cases, together with the ruling of theUnited States District Court for the Northern District of Illi-nois, in the case of .Tarriett E. Oollins, ,.,, ye, reported, thatthe court has jurisdiction of a voluntary petition by a marriedwoman, constitute all the reported .authorities in the UnitedStates, we must look for a more elaborate and logical discussionof the questions in the courts of England, the provisions of whoseBankrupt Act in this respect are similar to our own.It would seem to be the rule that any person capable of makinga binding contract is amenable to bankruptcy proceedings, andthat in so far as the common-law disabilities of a fene covert areremoved she comes within the jurisdiction of the Bankrupt Law.This rule, which is as consonant to reason and justice as it iscapable of general appliation, seems first to have been stated byCooke in his work on Bankruptcy, published a full century ago, inW:hich lie says: "The criterion, therefore, of a feme covert beingcapable of falling under the bankrupt laws, appears to be herliability to be sued to execution for the debts she has- contractedduring coverture. A commission of bankruptcy is considered asa statute execution. If a married woman is so circumstanced asto be subject to a common-law execution, there does not occur anyreason why she should not likewise be subject to this statuteexecution."It was upon this principle that when, in 1772, the commissionersrefused to find Mrs. Anne :Fitzgerald a bankrupt, because althoughshe had property settled upon her, and bad entered into a deed ofseparation from her husband, she was a feme covert, residing inthe county of Middlesex, and not a trader in the city of London,Lord Chancellor APSLEY, on appeal, ordered the commissioners todeclare her a bankrupt, and the messenger to take possession ofher property. The authority of this case is supported by LordMANSFIELD in 1?ingstead v. Lanesborough, 3 Douglas 197, andBarwell v. Brooks, and (orbet v. Polnitz, I Term R. 5.The same general principle is evidently the reason of the ruleaccording to which persons who could not otherwise have been pro-1ARRIED WOMEN AS BANKRUPTS.ceeded against in bankruptcy have, by trading, bcajme amenableto the proceedings, even though such trading may have been posi-tively prohibited by law. Thus a clergyman may become a bank-rupt, Ex parte Meiqnot, 1 Atkyns 196, even though in priest'sorders, Ifanky v. Jones, Cowper 745; a public officer, Bighmore"v. Habllorg, 1 Atkyns 206; an executor, if lie continues thetestator's busine'ss beyond what is necessary to close up the estate;Exparte Mott, I Atkyns 102; Ex parte Garland, 10 Vesey 110;Viner v. Cadell, 3 Espinasse 88.The remedy for the creditor by petition would certainly seemto be at least co-extensive with the liability of the debtor; for aninfant, if he has held himself out as a trader and sui juris, hasbeen held amenable, Ex parte Adam, 1 Vesey & Beames 494; orhas affirmed the debt after attaining his majority, Belton v.Hod es, 9 Bingliam 860; or if at the time of contracting thedebt lie made express statements that he was of age, -Ex parte,Watson, 16 Vesey 265; Lxparte Bates, 2 Montague, Deacon &DeGex 337.The doctrine that aferne covert, who has been deserted by herhusband, and been trading as afeme sole, should be held on herdebts, has the authority of the U. S. Supreme Court. In .Rhea v.Bhenner, 1 Peters 108, this is stated to be the well settled rule,the court citing both English and Massachusetts authorities, andarguing that the rule is for the benefit of the femne covert, as other-wise she could not obtain credit, and would have no means of gain-ing a livelihood.In England, as far back as the earliest days of lie custom ofLondon, a married woman, who, as a trader, had con -acted debts,might be proceeded against in bankruptcy: Lavie -, Philips, 3Burrow 1783; -x parte Carrington, 1 Atkyns 206; -x parteFranks, 7 Bingham 762.But the leading case is Johnson v. Gallagher, 30 Law Jour. 298,in which TURNER, L. J., elaborately discusses the rights andliabilities of married women, and after a review of the cases as totheir right to charge or encumber their separate estates, and theirliability upon notes, bills and spec'alties, concludes that not onlythese but also their general engagements may affect their separateestates; that where a woman was living separate from her husband,and had a separate estate, the court is bound to impute to her theintention to deal with her separate estate unless the contrary isMARRIED WOMEN AS BANKRUPTS.clearly proven ; that the court cannot impute to her the dishonestyof not intending to pay for the goods she purchased; but that inorder to bind her separate estate by a general engagement itshould appear that the engagement was made with reference toand upon the faith or credit of that estate, and that whether itwas so made was a question to be judged of by the court upon allthe circumstances of the case. This case was expressly approvedin A4frs. JMatthewman's Case, L. R. 3 Eq. 781, in which a mar-ried woman was held to be a contributory to a joint stock com-pany; in Picard v. Hine, L. R. 5 Ch. App. 274, and by Lord Rom .ILLY, Master of the Rolls, in i1fcHenry v. Davies, L. R. 10 Eq. 88.It will be seen, therefore, that the liability of married womenhad already been considerably extended at the time of the passageof the Married Women's Property Act, August 9th 1870. All ofthe above decisions were rendered before that time, and as thatact gives, among other things, to married women the right to theirseparate earnings, there can be no question that their liabilityunder their general engagements is still farther extended.There seems to be no doubt as to the rule that a married womanmay be a voluntary bankrupt wherever there is a liability eitherof the person or of the estate t6 be discharged.Our Bankrupt Law says: § 11, "1 Any person residing within thejurisdiction of the United States, owing debts, &c.," may beadjudged a bankrupt; also, § 89, "Any person residing andowing debts as aforesaid," &c.; and these two are the jurisdictionalsections in voluntary and involuntary bankruptcy. Where awoman may owe she may be bankrupt; where she cannot there isnothing upon which to found the proceedings. 11er capacity toowe can only be determined by state legislation or interpretation;one state may establish one rule, and another a different rule ; butCongress has no jurisdiction to legislate on the subject; such powerwas not granted in the Constitution, and is reserved to the states.The foundation of bankruptcy proceedings is indebtedness;without this there is no basis for jurisdiction. Thus a simplepromise, or a note without consideration, not being a legal claim.is not such a demand as will support proceedings in bankruptcy:In ie Cornwell, 4 Bankrupt Reg. 134 Nor is an infant, as tohis general engagements, a subject of either voluntary or involun-tary bankruptcy: In re Derby, 8 Bankr. Reg. 106.MARRIED WOMEN AS BANKRUPTS.Impossible as it may be to reconcile the decisions on the generalquestion of the rights and liability of married women, the dutyof the Federal courts in applying the Bankrupt Law in these caseswould seem to be of a simpler character. If they determine thestatus of a married woman under the existing law of the statewhere the jurisdiction is to be exercised, and administer the Bank-rupt Law upon the basis of the principles thus discovered, theyhave done all that can be required. The application of the Bank-rupt Law to married women depends clearly, not upon their rights,but their liabilities. Those liabilities are determined by the lawof the forum where the jurisdiction is invoked.The Bankrupt Act does notxnake any new standard of liability,but simply operates upon those already existing.1 Wherever amarried woman cannot contract a legal debt she has no need to bedischarged from it, and the creditor can have no standing in court,as his claim in such case has no substance or legal entity. In ajurisdiction where her estate is but a creature of equity, thecreditor should lay the proper foundation for proceedings againstit, and use apt words to charge it. Where she may be sued eitherin law or chancery no more specific allegations seem to be neces-sary than would sustain an ordinary action against her at commonlaw or in chancery, as the case might be. Where she can be apartner with her husband she can also be adjudged a bankrupt inproceedings against such partnership.And if any state shall go so far beyond Martin v. .Robson asto place a mfrried woman ofi the same legal footing as her hus-band, there will be no more difficulty in the bankruptcy of the onethan of the other. In all cases where a plea of coverture would notavail her, a married woman may be proceeded against in bankruptcy.This varying rule in different jurisdictions is therefore not suchan irregularity as the exemption clause, the constitutionality ofwhich was at first doubted, for there is a clear underlying princi-ple to which the various decisions may be referred, and by whichthey may be reconciled. J. I. BISSELL.Chicago.I It does not undertake to establish a uniform rule for the legality of contractsor the liability of persons, any more than it does to establish a uniform statute oflimitation or a general statute of frauds, or a certain age at which infancy shallcease.and liability commence, or decide whether remedies shall be at law or i.equity.

Married Women as Bankrupts

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Married Women as Bankrupts

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