§ 218. * 317. Joinder in Case of Substituted Debtor. In the case of a substitution of one party for another as a debtor, that is, when, a debt being due from one person, another for a valuable consideration assumes such indebtedness and promises to pay the same, it has been decided in Indiana that the creditor may maintain an action against the substituted debtor, but must join with him the original debtor as a co-defendant, under the general provision of the code requiring or permitting all persons to be made defendants who are necessary parties to a complete determination and settlement of the questions involved.1 In this decision the court has accepted to its full extent the equitable theory of parties, and has applied it unreservedly to a purely legal action; for since the creditor had surrendered all claim upon the original debtor, he could recover no judgment in the action against such debtor, and the latter's presence could only be necessary for his own protection and that of the other defendant. It is probable that this ruling would not be followed by those courts which have partially or wholly confined the operation of the statutory provisions in question to equitable actions. When the stockholders of a corporation are by statute made personally responsible for an amount equal to the amount of stock held by them, the liability is not joint, and each must be sued separately.2

SECOND.

ACTIONS AGAINST HUSBAND AND WIFE OR EITHER OF THEM: PARTIES DEFENDANT AS AFFECTED BY THE MARRIAGE RELATION.

§ 219. * 318. General Extent of Statutory Modification of Common-Law Rules. No Change in Suits against Wife for her Torts, Frauds, and other Wrongful Acts. The provisions of the codes, and of other statutes, in relation to actions in which married women are parties, were quoted in full in the last preceding section, and need not be repeated here. There is a marked

v. Organ, 15 Ind. 188; Perry v. Seitz, 2 Duv. (Ky.) 122; Lytle v. Lytle, 2 Metc. (Ky.) 127; Gill v. Johnson's Adm., 1 Metc. (Ky.) 649. See Shane v. Lowry, 48 Ind 205, 206; Strong v. Downing, 34 Ind. 300; Durham v. Bischof, 47 Ind. 211; S. P. Hardy v. Blazer, 29 Ind. 226.

1 Hardy v. Blazer, 29 Ind. 226; Davis

difference in the extent of the alterations made in the former law by the legislation of the various States. The changes in New York are complete and radical, the wife being in almost every respect assimilated to the unmarried woman. The example of New York is followed by many States. In many others, however, the modifications do not go to any such extent, and are confined to the cases in which married women are sued or sue in respect of their separate property, and those in which the action is directly between the husband and wife, leaving all others to be controlled by the prior law. We saw in the preceding section that in this group of States where a right of action exists on account of a tort committed to the person of a married woman, the common-law rules are unchanged, and the action must be either in the name of the husband alone, or of the husband and wife jointly; while in New York, and in the States which have copied its legislation, the wife is permitted to sue in her own name in respect of any cause of action accruing to herself. There is even less modification of the ancient doctrines which regulate the form of suits against the wife for her torts, frauds, and other wrongful acts.1

§ 220. 319. Result. The result is that, in actions which concern her separate property, the wife may or must be sued alone. In those States which permit her to enter into contracts having reference to her separate property, or connected with a business or trade which she may carry on, suits upon such contracts may or must be brought against her individually;2 while

1 [In Taylor v. Pullen (1899), 152 Mo. 434, 53 S. W. 1086, the court said: "While it is true that one of the supposed reasons for the rule which required a husband to be joined with his wife in an action for her torts has ceased because he no longer acquires her property by virtue of the marriage in this state, all lawyers must admit that so far no writer or court has as yet furnished satisfactorily all the reasons which may have influenced the adoption of the rule at common law, and until they are produced, certainly the courts cannot declare that all the reasons have ceased and thus abolish the rule by judicial decision." See also Nichols v. Nichols (1898), 147 Mo. 407, 48 S. W. 947.]

2 [In Hollister v. Bell (1900), 107 Wis. 198, 83 N. W. 297, the court said: “A married woman has not capacity to bind herself at law by contract, except as regards her separate property or business. It fol lows, as has often been decided by this court, that a married woman's note, given solely for the purpose of securing or paying the debt of a third person, is void at law and not enforceable in equity against her separate property in the absence of some equitable considerations rendering such enforcement under the circumstances just." The signing of a promissory note by a married woman raises no presumption that she intended to charge her sepa rate estate: State Nat. Bank e. Smith (1898), 55 Neb. 54, 75 N. W. 51. See also

actions to recover damages for personal torts committed by her must be instituted against her and her husband jointly, or, in certain exceptional cases, solely against the husband. These propositions, which are the general summing up of the statutory provisions, and of the judicial interpretation thereof, I shall now illustrate by particular instances which will embrace all the important questions that arise.

§ 221.320. The Settled Rule. by Compulsion of Husband.

Tort Committed in Presence or It is the settled rule in the States which have adopted the second form of statute,1 that, in actions to recover damages for all torts whether with or without violence, negligences, frauds, deceits, and other such wrongs done by the wife personally, and not done merely by, or by the use of, her separate property, the common-law principle is unaltered, and the husband and wife must be joined as co-defendants.2 The principle thus stated assumes that the wife acted voluntarily. If, however, the tort is committed by the wife in the presence and under the compulsion or direction of her husband, he alone is liable, and should be sued without making her a co-defendant. In applying the latter rule, it is settled that if the tort is done by the wife in the presence of her husband, a prima facie presumption is raised that it was done by his direction and under his compulsion. This presumption may be overcome, and if it be shown that she acted voluntarily, although in his presence, she must be

Gallagher v. Mjelde (1898), 98 Wis. 509, 74 N. W. 340, holding that a married woman without property and not in business cannot make a binding contract to repay money loaned to enable herself and husband to go into business.]

1 [That form which requires a joinder except in actions concerning the wife's separate property and in actions between husband and wife. See § 152, ante.]

2 [Henley v. Wilson (1902), 137 Cal. 273, 70 Pac. 21, citing the text;] Anderson v. Hill, 53 Barb. 238, assault and battery by the wife; Peak v. Lemon, 1 Lans. 295, conversion; Tait v. Culbertson, 57 Barb. 9, libel by the wife; Kowing v. Manly, 57 Barb. 479, 483; 8. c. 49 N. Y. 192, 198, fraud and forgery by the wife; Brazil v. Moran, 8 Minn. 236, assault and battery by the wife; Ball v. Bennett, 21 Ind. 427, action for setting fire to plaintiff's mill by

the wife; Turner v. Hitchcock, 20 Iowa, 310, trespass on plaintiff's premises and destroying personal property thereon; Musselman v. Galligher, 32 Iowa, 383; McElfresh v. Kirkendall, 36 Iowa, 224 ; Luse v. Oaks, 36 Iowa, 562, slander by the wife; Curd v. Dodds, 6 Bush, 681, action for fraud of wife in selling certain property of hers. Held, that she was not liable for a fraud in entering into a contract, the law of Kentucky not permitting her to make a binding contract; the doctrine of the text is fully recognized in the opinion. Coolidge v. Parris, 8 Ohio St. 594, assault and battery by the wife. In Kowing v. Manly, 49 N. Y., Rapallo J. discusses the subject [of the joinder of the husband and wife under the commonlaw rule, as it existed in New York prior to the recent legislation. The opinion is a learned and exhaustive one.] See also

made a defendant. These common-law rules have not been in any respect changed by the codes.1

§ 222. *321. Where Tort is committed by Wife in the Use or by Means of her Separate Property. If, however, the tort is not committed by the wife personally, but is done by means of her separate property, or in the use thereof, or under color or claim of ownership of her separate property, the action should be brought against her individually, without joining the husband as co-defendant, in all those States whose statutes permit a married woman to be sued alone in respect of all matters which concern her separate estate. In other words, actions which concern or

have relation to her separate property are not confined to those upon contract or those involving the ownership of the property, but extend to suits based upon torts and wrongs done by means or in the use of or claim to the property.

Clark v. Boyer, 32 Ohio St. 299; Sunman v. Brewin, 52 Ind. 140 (if the husband dies after verdict, the wife is liable to have judgment entered against herself alone). Fitzgerald v. Quann, 109 N. Y. 441; 33 Hun, 652 (slander by wife); Austin v. Bacon, 49 Hun, 386 (same); Quilty v. Battie, 61 Hun, 164 (harboring a vicious dog); Wirt v. Dinan, 44 Mo. App. 583 (for deceit of wife). [But see, also, Thomas v. Cooksey (1902), 130 N. C. 148, 41 S. E. 2, where a suit for possession of personal property was held properly brought against the wife alone. The court said that if the fact that she had a husband

living would protect her, " all that a mar

ried woman would have to do would be to get possession of some one else's property, and the owner would be without remedy and helpless. Heath v. Morgan, 117 N. C. 504." Also, Pender v. Mallett (1898), 123 N. C. 57, 31 S. E. 351, where suit was brought by a receiver against a wife to whom her husband had conveyed property in fraud of creditors, the husband being joined as a defendant.]

1 Brazil v. Moran, 8 Minn. 236; Ball v. Bennett, 21 Ind. 427; Curd v. Dodds, 6 Bush, 681, 685; Cassin v. Delaney, 38 N. Y. 178, per Hunt C. J.: "An offence by his direction, but not in his preseuce, does not exempt her from liability; nor does his presence, if unaccompanied by his direction. The presence furnishes evidence and affords a presumption of his direction,

but it is not conclusive, and the truth may be established by competent evidence." Flanagan v. Tinen, 53 Barb. 587. The rule is settled in Missouri, that if husband and wife both unite in committing a tort, as, for example, an assault and battery, a joint action against them will not lie, but the husband alone must be sued. Dailey v. Houston, 58 Mo. 361, 366, 367; Meegan v. Gunsollis, 19 Mo. 417; see, however, Flesh v. Lindsay (Mo. Sup. 1893), 21 S. W. 907. But in an action against husband and wife for their joint fraud, it was held in New York that she would not be liable unless she actively participated in the wrong. Vanneman v. Powers, 56 N. Y.

39, 41.

2 Peak v. Lemon, 1 Lans. 295; Eagle v. Swayze, 2 Daly, 140; Rowe v. Smith, 38 How. Pr. 37, s. c. on appeal, 45 N. Y. 230; Baum v. Mullen, 47 N. Y. 577. Action against a married woman alone to recover damages for fraud in the sale of land which she owned, the husband acting as her agent in the sale and making the fraudulent representations. The fact that her husband acted as her agent in the sale did not affect her liability, for he may be her agent the same as any other person. She is liable for frauds committed by her husband as her agent in carrying on a business for her. Warner v. Warren, 46 N. Y. 228. See also Quilty v. Battie, 135 N. Y. 201. [See Pender v. Mallett (1898), 123 N. C. 57, 31 S. E. 351.]

§ 223.

322. Under New York Statutes. Under the statutes of New York, a married woman may be sued alone upon any contract which she has made in a trade or business carried on by herself, or in her name by her agent, and the complaint should be in the ordinary form as though the action was brought against an unmarried woman.1 She must also be sued in the same manner upon any contract made in relation to, or upon any liability growing out of her separate property. Finally, if she enters into any contract and therein charges the payment thereof upon her separate property, she is in like manner personally liable, and must be sued without making her husband a codefendant. The charge thus made does not create an equitable lien upon any particular property, nor even a general lien to be enforced by an equitable action. It simply creates a personal liability upon herself, to be enforced in an ordinary legal action, and by the recovery of any ordinary judgment for debt or damages. Such charge may even be verbal, and when made creates a personal liability which may be enforced against any property which she may have at the time, or any which she may afterwards acquire. In all these cases it is not necessary to allege in the complaint the special facts from which such liability arises; the complaint should be in the ordinary form, and all the special facts relating to her coverture should be averred in the answer.2

1 Hier v. Staples, 51 N. Y. 136. She has not the full power to contract; the contract must either be made in some trade or business which she carries on, or be for her personal services, or have a connection with her separate property. See the following cases: Manchester v. Sahler, 47 Barb. 155; Smith v. Allen, 1 Lans. 101; Hart v. Young, 1 Lans. 417; Lennox v. Eldred, 1 N. Y. Sup. Ct. 140; Shorter v. Nelson, 4 Lans. 114; Hallock v. De Munn, 2 N. Y. Sup. Ct. 350; Bodine v. Killeen, 53 N. Y. 93 ; Adams v. Honness, 62 Barb. 326.

* These propositions are the final results at which the New York courts have arrived through a long and progressive series of decisions. Maxon v. Scott, 55 N. Y. 247; Hier v. Staples, 51 N. Y. 136; Hinckley v. Smith, 51 N. Y. 21; Frecking v. Rolland, 53 N. Y. 422, 426; Smith v. Dunning, 61 N. Y. 249; Foster v. Conger, 61 Barb. 145, 147; Ainsley v. Mead, 3 Lans.

116; Perkins v. Perkins, 62 Barb. 531; Baken v. Harder, 6 N. Y. Sup. Ct. 440; Weir v. Groat, 6 N. Y. Sup. Ct. 444; Blanke v. Bryant, 55 N. Y. 649; Loomis v. Ruck, 56 N. Y. 462; Corn Exch. Ins. Co. v. Babcock, 42 N. Y. 613; Yale v. Dederer, 18 N. Y. 265, 22 N. Y. 450, which is superseded by subsequent decisions; Owen v. Cawley, 36 N. Y. 600; Carpenter v. O'Dougherty, 50 N. Y. 660; Garretson v. Seaman, 54 N. Y. 652; Newell v. Roberts, 54 N. Y. 677; Fowler v. Seaman, 40 N. Y. 592; Quassaic Nat. Bk. v. Waddell, 3 N. Y. Sup. Ct. 680; Miller v. Hunt, 3 N. Y. Sup. Ct. 762 ; Kelty v. Long, 4 N. Y. Sup. Ct. 183; Bogert v. Gulick, 65 Barb. 322; Warner v. Warren, 46 N. Y. 228; Manhattan Brass & M. Co. v. Thompson, 58 N. Y. 80.- Contracts between the wife and husband; see also ante, § * 240, and