and in this respect our American legislation of the present day seems to have been somewhat anticipated. The wife's lawful power to carry on a trade on her own account, independently of her husband, like most of her other separate privileges, is founded at the common law upon contracts made with her in derogation of the husband's marital rights. It appears that a wife desiring to go into business on her own account, makes an agreement with her husband. When the agreement is made before marriage, it will bind the husband and his creditors; when made during the coverture, it binds the husband only, and is void against his creditors. And the husband will be liable for the debts, if it appeared that he participated with the wife in the benefits. Separate trading was also permitted the wife by the "custom of London ;" and herein she was regarded as liable to arrest and imprisonment for debt without her husband, and, moreover, might be declared a bankrupt. And if the husband had any concern in the business, the wife was not to be treated as a feme sole in respect of it.*

Notwithstanding these provisions of the law, it does not appear that separate trading in England, prior to the innovations introduced with the married women's act of 1870, was ever very common. The difficulties in the way of establishing credit, and of negotiating securities, on the wife's sole behalf, were probably found insurmountable, even though married women might be found anxious to assume the responsibilities of trade, with its incidental imprisonment for debt. The judicial evidence of this separate trading is supplied chiefly by the misfortunes such trade entailed upon the women who embarked in it. Even where the wife lived apart from her husband (a very im

1 Macq. Hus. & Wife, 321; 2 Bright, Hus. & Wife, 292; Lavie v. Phillips, 3 Burr. 1783; 2 Roper, Hus. & Wife, 165, 175, and cases cited. See Antenuptial and Postnuptial Settlements, cs. 13,

14.

2 Jarman v. Wooloton, 3 T. R. 618; 2 Bright, Hus. & Wife, 297; Schouler, Hus. & Wife, § 299; Barlow v. Bishop, 1 East, 432; Petty v. Anderson, 2 Car. & P. 38; Macq. Hus. & Wife, 322.

8 Beard v. Webb, 2 B. & P. 97. See 2 Roper, Hus. & Wife, 124.

42 Bright, Hus. & Wife, 77, 78; Lavie v. Phillips, 3 Burr. 1776; Schouler, Hus. & Wife, § 300.

5 But see the recent cases of Talbot v. Marshfield, L. R. 3 Ch. 622; Re Peacock's Trusts, L. R. 10 Ch. D. 490; Ashworth v. Outram, L. R. 5 Ch. 923 ; Schouler, Hus. & Wife, § 301.

portant consideration), and, having her separate estate, carried on a trade, it was doubted, in an important case of which we have spoken elsewhere, whether the tradesman furnishing supplies had any demands upon that estate which equity could recognize.2

-

§ 164. Wife's Power to Trade, etc.; American Equity Rule. This doctrine of the wife's power to trade comes up anew in the United States of late years, with our recent policy in favor of the independence of married women. And the rule seems, apart from late legislation, to be well established in the United States, that the husband, in pursuance of a marriage contract, antenuptial or postnuptial, may confer upon his wife the right to trade for her exclusive benefit. Nor have the American cases uniformly insisted upon formal contracts for this purpose between husband and wife; seemingly regarding the question as one of mutual and bona fide intention merely. The husband's assent is in general necessary, provided they live together; and if they do not, different considerations apply. And apart from statute, it would appear to be the general rule that, unless the husband's consent that the wife carry on business in her own name is based upon a sufficient consideration, he may withdraw it at any time and assert his common-law rights.

On the other hand, in North Carolina the whole doctrine of separate trading is expressly repudiated. Indeed, our earlier

1 See Separation, c. 17, post.

2 Cf. Bruce & Turner, Lord Justices in Johnson v. Gallagher, 3 De G. F. & J. 494.

Richardson v. Merrill, 32 Vt. 27; Tillman v. Shackleton, 15 Mich. 447; Wieman v. Anderson, 42 Penn. St. 311; Duress v. Horneffer, 15 Wis. 195; James v. Taylor, 43 Barb. 530; Wilthaus v. Ludicus, 5 Rich. 326; Uhrig v. Horstman, 8 Bush, 172; Cowan v. Mann, 3 Lea, 229.

* See per Redfield, C. J., in Richardson v. Merrill, 32 Vt. 27; Partridge v. Stocker, 36 Vt. 108; Penn v. Whitehead, 17 Gratt. 503; Tillman v. Shackleton, 15 Mich. 447; Wieman v. Anderson, 42 Penn. St. 311; Todd v. Lee, 16 Wis. 480; Mayhew v. Baker, 15 Ind. 254;

Schouler, Hus. & Wife, passim, §§ 303, 304.

5 Cropsey v. McKinney, 30 Barb. 47; Green v. Pallas, 1 Beasl. 267.

6 Conklin v. Doul, 67 Ill. 355; Cropsey v. McKinney, 30 Barb. 47; Todd v. Lee, 16 Wis. 480; Richardson v. Merrill. 32 Vt. 27; Partridge v. Stocker, 36 Vt. 108; Penn v. Whitehead, 17 Gratt. 503; King v. Thompson, 87 Penn. St. 365. Some old statutes recognizing the wife as a feme sole trader appear to have existed in Pennsylvania and South Carolina. Schouler, Hus. & Wife, § 305. Equity jurisdiction to grant the privilege not favored. 75 Ala. 293.

McKinnon v. McDonald, 4 Jones Eq. 1. As to Alabama, see Newbrick v. Dugan, 61 Ala. 251.

American cases seem to have regarded with very little favor the doctrine that the wife, while living with her husband, could carry on a business of her own without rendering her husband liable and subjecting her stock in trade to his debts. And the same may be said, at this day, of States whose legislatures have not freely conceded rights to married women.2

§ 165. Conclusion from English and American Decisions. The conclusion to be drawn from this class of cases is that, modern policy having once conferred upon the wife large powers both as to the acquisition and enjoyment of separate property, as well as the right to invest and reinvest the same, including their rights under marriage settlements, married women naturally sought business opportunities with their capital; and thus the modern courts, confronted with the practical results, and aided by precedents from old local customs or old legislation, were drawn into the practical concession of trading privileges, and hence of trading liabilities, while professing to deny to the wife on general principles the right to engage in mercantile pursuits without more explicit statute provisions to that effect, and while requiring the assent of the husband to appear.3

When it is clearly for the wife's advantage to reap the benefits of her business, the disposition of the law to yield them must be strong; but where, as must often be the case, she speculates imprudently and becomes deeply involved, the court is perplexed, though doubtless anxious to relieve her. In some leading cases upon this point, we find the married woman who has subjected her property to the demands of her husband's creditors permitted to stand in equity, where the business fails, as a sort of preferred creditor, for her manifest benefit. The creditor's claim for supplies is of at least doubtful equity;5 such

1 Mackinley v. McGregor, 3 Whart. 378, and cases cited.

2 Godfrey v. Brooks, 5 Harring. 396; Woodcock v. Reed, 5 Allen, 207, per

curiam.

Independently of statute the wife may purchase goods on her separate credit with her husband's assent, and use them in a sense for a business investment on her part. 150 Mass. 82; 86 Ala. 424.

4 Penn v. Whitehead, 17 Gratt. 503; Richardson v. Merrill, 32 Vt. 27; Cowan v. Mann, 3 Lea, 229. See Bellows v. Rosenthal, 31 Ind. 116.

6 Johnson v. Gallagher, 3 De G. F. & J. 494; Copeland v. Cunningham, 31 Ind. 116. But see Todd v. Lee, 16 Wis. 480; Partridge v. Stocker, 36 Vt. 108.

indebtedness must usually be pronounced void at law;1 while even equity will decline to enter a decree establishing a charge on the wife's estate, unless the husband, or some other trustee for the wife, is properly before the court. And if equity, unaided by legislation, preserves the separate capital thus invested in trade, that the wife may enjoy its benefits, it is otherwise with profits which may have accrued beyond the interest of such capital.3

§ 166. Enlargement of Wife's Power to Trade or Exercise a Profession under Recent Statutes. But the doctrine of a wife's separate trading is at this day to be considered under the combined influence of modern equity decisions as to the wife's jus disponendi, and the recent married women's acts. The English act of 1870 declares that wages and earnings of a married woman shall be her separate property; under construction of which act, the English chancery has lately sustained the right of a butcher's wife to carry on her husband's business upon her separate resources, he being incapacitated through delirium tremens, and, while at home, offering no obstruction to her course.5 Again, both under the act of 1870 and independently of it, chancery protected the widow's interests as against the husband's administrator, after his death, in a valuable fruit-preserving business, which she had commenced while single; and continued, after her marriage in 1874, to carry on in her maiden name, her husband consenting. The later act of 1882 explicitly secures to the wife as her separate property, her wages, earnings, money and property gained or acquired by her in any employment, trade, or occupation, in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill.7

6

1 Conklin v. Doul, 67 Ill. 355. 2 Ibid.

3 Jassoy . Delius, 65 Ill. 469; Jenkins v. Flinn, 37 Ind. 349, and cases cited; Dumas v. Neal, 51 Ga. 563; Clinton Man. Co. v. Hummell, 25 N. J. Eq. 45; Schouler, Hus. & Wife, § 307. 4 Act 33 & 34 Vict. c. 93; supra,

§ 203.

7. If his assent was not clearly shown to his wife's trade, there would appear to have been a pretty fair inference, from the facts, that he gave it.

6 Ashworth v. Outram, L. R. 5 Ch. 923. As to selling out the good-will, see Re Peacock's Trusts, L. R. 10 Ch. D. 490.

7 Act 45 & 46 Vict. c. 75. And see 5 Lovell v. Newton, L. R. 4 C. P. D. Gilchrist ex parte, 17 Q. B. D. 521.

The recent married women's acts in many of the United States have enlarged and more fully established the wife's power to trade or exercise a profession on her own account; and the profits of her business are thus secured to her sole and separate use. She is thus enabled to use her separate property; and she may even enter, in some States, into a general partnership for trade. In general, what the wife acquires under these statutes is declared to be exempt from liability for the husband's debts, and not subject to his control or interference. But the statutes of certain States require the married woman to first register her intention, thus affording a very reasonable safeguard against fraud and imposition upon the public and herself, besides requiring that the act be a deliberate one; 2 and the husband will be held liable on her contract where the certificate is not duly filed. In Kentucky, special authority to trade must first have been conferred by the chancellor. Such requirements not being complied with, the creditors of the husband may come upon the assets of the business. A statute which is designed to secure to the wife her separate earnings does not make her a feme sole trader.5

The wife, under such statutes, is found engaged on her separate account, as milliner and dressmaker, farmer, boarding

1 Such statutes are to be found in New York, Maine, New Hampshire, Massachusetts, Connecticut, Kansas, New Jersey, Iowa, California, Wisconsin, Illinois, Arkansas, Mississippi, and other States. And see Mitchell v. Sawyer, 21 Iowa, 582; Schouler, Hus. & Wife, § 309, and appendix. See also Stimson's Am. Stat. Law, art. 652. Such local statutes speak of "free trader," "sole trader," "free dealer," "public merchant," &c. To the status of free trader (which often applies to wives abandoned by their husbands), peculiar rights and liabilities sometimes attach under these codes. See 101 Penn. St. 371; 96 Penn. St. 180; 78 Mo. 320; post, § 219; 79 Ky. 497.

A married woman may now in many States incur a stockholder's liability with reference to shares she may own,