mitted, in a few States, to maintain an action and recover damages for her own seduction.1

Second: Actions by and between Husband and Wife.

*

§ 151. 234. Common Law and Equity Rules. The commonlaw rules as to the power of a wife to bring actions in her own name, and as to the necessity of making husband and wife coplaintiffs in all actions where she could be party at all, relating to her property or to wrongs suffered by her, have been either swept away or greatly modified in all the States which have adopted the reformed system of procedure. These common-law requisites were concisely stated in a former paragraph of this section. In equity, while as a general rule the husband was joined as a co-plaintiff even in suits touching her equitable separate estate, yet when their interests were at all antagonistic, and especially when the proceeding was in any manner adverse to him, she was permitted to sue without uniting him with her, and even to make him a defendant. Her action, however, was prosecuted in her name by a next friend.3

[§ 152. Statutory Provisions. There are two general types of the statutory provision as found in most of the codes. The statutes of the first type abolish the necessity of joining the husband and wife where such joinder would not be necessary aside from the marriage relation. The Kansas statute is illustrative of this type, and reads as follows: "A married woman may sue and be sued in the same manner as if she were unmarried." 4 The statutes of Oklahoma and Utah are identically the same, and those of Colorado, Montana, and Nebraska differ only slightly.5

woman cannot bring the action. Woodward v. Anderson, 9 Bush, 624.

[Conflict of laws. In Thorpe v. Union Pacific Coal Co. (1902), 24 Utah, 475, 68 Pac. 145, it was held that where the statute of Wyoming requires an action for the negligent death of a person to be brought by and in the name of the personal representative of the deceased, and the statute of Utah allows such action to be brought by the heirs, the statutes of Wyoming must control where such an action is brought in the courts of Utah for the death of a person negligently killed in Wyoming.]

1 See supra, § *120. And see Thompson v. Young, 51 Ind. 599; in such an

action the complaint must allege that the plaintiff is unmarried.

2 See supra, §*191.

3 Story, Eq. Pl. §§ 61, 631; Daniell Chan. Pl. (4th Am. ed.), pp. 109, 110. 4 [Gen. St., 1901, § 4457.]

[Oklahoma: St., 1893, § 3901. Utah: Rev. St., 1898, § 2904.

Colorado: "A married woman may sue, and be sued in all matters, the same as if she were sole." Code, § 6.

Montana: "A married woman may sue and be sued in the same manner as if she were sole." Code, § 572.

Nebraska: "A woman may, while married, sue and be sued, in the same

Substantially the same provision, but expressed in different form, is found in Iowa, Minnesota, North Dakota, Ohio, South Dakota, and Wyoming.1 The Missouri statute allows a married woman to sue "with or without joining her husband" in the same manner as though she were sole.2 The New York statute also falls in this group, but in addition to the general provision allowing a married woman to sue or defend "alone or joined with other parties as if she were single," it specifies certain classes of cases where the husband should not be joined. The second type requires that the husband and wife be joined except in certain enumerated cases. The Indiana statute is a good example of this form. It reads as follows: "A married woman may sue alone: First. When the action concerns her separate property. Second. When the action is between herself and her husband; but in no case shall she be required to sue or defend by guardian or next friend, except she be under the age of twenty

manner as if she were unmarried." Comp. St., 1901, § 3661.]

[Iowa: "A married woman may in all cases sue and be sued without joining her husband with her, and an attachment or judgment in such action shall be enforced by or against her as if she were single." Code, 1897, § 3477.

Minnesota: "A married woman may sue or be sued as if unmarried, and with out joining her husband, in all cases where the husband would not be a necessary party aside from the marriage relation." St., 1894, § 5159.

North Dakota : "When a married woman is a party, her appearance, the prosecution or defence of the action, and the joinder with her of any other person or party, must be governed by the same rules as if she were single." Rev. Codes, 1899, § 5224.

Ohio: "A married woman shall sue and be sued as if she were unmarried, and her husband shall be joined with her only when the cause of action is in favor of or against both her and her husband." Bates' St., § 4996.

South Dakota: Identical with North Dakota statute, supra. Ann. St., 1901, § 6073.

to join her husband with her as a party except in such cases where it would be necessary to join such husband without reference to the fact of his marriage to such woman." Rev. St., 1899, § 3470.]

2 [Missouri: "A married woman may, in her own name, with or without joining her husband as a party, sue and be sued in any of the courts of this State having jurisdiction, with the same force and effect as if she was a feme sole, and any judg ment in the cause shall have the same force and effect." Rev. St., 1899, § 546.] 8 [New York: "In an action or special proceeding a married woman appears, prosecutes or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife, and all sums that may be recovered in such actions or special proceedings shall be the separate property of the wife. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful acts of his wife committed without his instigation." Code Civ. Pro. § 450.]

one years. This statute is found in substantially the same form in Arizona, Arkansas, Nevada, North Carolina, Oregon, South Carolina, and Wisconsin.2 In California a third class of exceptions is added, namely, where the husband has deserted the wife or where there is an agreement in writing between them. Idaho has adopted the California statute, and Washington has a statute very similar to it. The statutes of Connecticut, Georgia, and

Kentucky are peculiar and do not fall within either of these groups. ]1

§ 153. *239. Wife must sue Alone in Some States. The following are instances in which it has been held, under the special provisions of the New York statutes, that the wife must sue alone, although the joinder of the husband does not, as decided by the Court of Appeals, defeat the action entirely. The doctrine which lies at the foundation of these decisions is also embodied in the statutes of the other States which have followed the example of New York by abrogating the common-law rules concerning suits by husband and wife. The cases themselves are therefore authoritative precedents in interpreting the corresponding statutory provisions of those States. The wife should sue alone on an award made in her favor; 2 to recover damages for the taking or the conversion of her personal property; 3 in an action on a lease executed in her name; to recover possession of

3. Where she is living separate and apart from her husband, she may sue or be sued alone." Bal. Code, § 4826.]

1 [Connecticut : "Where a married woman shall carry on any business, and any right of action shall accrue to her therefrom, she may sue upon the same as if she were unmarried.

"In any civil action by or against a married woman, her husband may be joined with her, as a co-plaintiff or codefendant, as the case may be; and when so joined, if a cause of action is found to exist in favor of or against one of them only, a judgment or decree shall be rendered accordingly; and in such cases no costs shall be taxed for such husband or wife in favor of whom no cause of action is found, nor against such husband or wife against whom no cause of action is found." Gen. St., 1902, §§ 593, 594.

Georgia: "If a tort be committed upon the person or reputation of the wife, the husband or wife may recover therefor; if the wife is living separate from her hus band, she may sue for such torts, and also torts to her children, and recover the same to her use. She may enforce contracts made in reference to her own acquisition." Code, 1895, § 2475.

Kentucky: 1. "In actions between husband and wife; in actions concerning her separate property; and in actions con

cerning her general property, and in ac-
tions for the personal suffering of or injury
to her person or character, in which he
refuses to unite, she may sue or be sued
alone. 2. In all other actions by or
against a wife, she and her husband may
join or be joined as plaintiffs or defend-
ants. 3. She may defend an action against
her and her husband for herself, and for
him also if he fails to defend. 4. If a
husband desert his wife she. may bring
or defend for him any action which he
might bring or defend, and shall have the
powers and rights with reference thereto
which he would have had but for such
desertion. 5. If a female party to an
action marry, her husband may be made
a party by a motion, causing the fact to be
stated upon the record; and the action
shall not be delayed by reason of the
marriage. 6. But if a wife be of unsound
mind, or imprisoned, the actions mentioned
in subsections one, three, and four of this
section must be prosecuted or defended
by her committee or curator, if she have
one; and if she have none, must be prose-
cuted by her next friend, or defended by
her guardian ad litem." Codes, 1895,
§ 34.]

2 Palmer v. Davis, 28 N.Y. 242.
3 Ackley v. Tarbox, 31 N. Y. 564.
4 Draper v. Stouvenel, 35 N. Y. 507.

her lands;1 to recover damages for trespasses upon her lands; 2 to recover damages for an assault and battery upon herself; to recover damages for the seduction of her own female servant, when she carries on a business in which the servant is employed; 4 to recover damages for the alienation of her husband's affection and deprivation of his society;5 to recover damages for false and fraudulent representations by which she was induced to convey her lands; in an action against a common carrier to recover the value of articles lost or destroyed, although gifts from her husband; to recover the price agreed to be paid for personal services rendered to the defendant.8

6

§ 154. *240. Result of New York Statutes. As the result of the New York statutes modifying the legal relations between the husband and wife, either may, under certain circumstances, maintain actions of a legal nature; that is, upon a legal cause of action, and seeking to obtain legal relief, against the other. It would seem, however, that such actions must be based upon rights of property or of contract. When the husband, prior to the marriage and in consideration thereof, gave his intended wife a promissory note, it is a valid demand in her hands, and she may, subsequent to the marriage, maintain an action against him upon it. The wife may bring an action in her own name against her husband to recover the possession of land which is her separate property. 10 She may also sue him to recover her personal

1 Darby v. Callaghan, 16 N. Y. 71; Hillman v. Hillman, 14 How. Pr. 456.

2 Fox v. Duff, 1 Daly, 196.

3 Mann v. Marsh, 35 Barb. 68. And also in Iowa for torts to her. Mewhirter v. Hatten, 42 Iowa, 288.

Badgley v. Decker, 44 Barb. 577. In this case, the wife, living separate from her husband, kept a boarding-house, and her daughter aided her by personal services.

5 Bennett v. Bennett, 116 N. Y. 584. 6 Newberry v. Garland, 31 Barb. 121. 7 Rawson v. Pennsylvania Railroad, 2 Abb. Pr. N. S. 220.

8 Adams v. Honness, 62 Barb. 326; but see, per contra, Beau v. Kiah, 6 N. Y. Sup. Ct. 464. Brooks v. Schwerin, 54 N. Y. 343; Sloan v. New York Central R. Co., 4 N. Y. Sup. Ct. 135. See also Reynolds v. Robinson, 64 N. Y. 589, 593.

See

further, to the same effect, Wyandotte v.
Agan, 37 Kan. 528; Porter v. Dunn, 131
N. Y. 314. For further illustrations in
suits on contracts, or concerning her own
property, see Bitter v. Rathman, 61 N. Y.
512; Curtis v. Del., L. & W. R. Co., 74 N. Y.
116; Fitch v. Rathbun, 61 id. 579; Kava-
nagh v. Barber, 131 N. Y. 211 (nuisance);
Hufnagel v. Mt. Vernon, 49 Hun, 286.
9 Wright v. Wright, 54 N. Y. 437, 59
Barb. 505.

10 Wood v. Wood, 83 N. Y. 575; Minier v. Minier, 4 Lans. 421. The court in the latter case draw a distinction between a suit like this, affecting her separate property, and one brought to recover damages for a tort, such as slander, or assault and battery. See, however, per contra, Gould v. Gould, 29 How. Pr. 441. This decision is in plain opposition to the spirit and letter of the remedial statutes.