Cleaver v. Scheetz

70 Pa. 496 | Pa. | 1872

The opinion of the court was delivered, May 13th 1872, by

Agnew, J.

This was a scire facias in right of Christianna Scheetz, the owner of a mortgage given by the defendants, Elias and Anna Cleaver. One of the pleas was set-off, under which the defendants claimed to recover a boarding bill against Mrs. Scheetz. The short plea of set-off may be presumed to be in the same right as the action of scire facias; that is, against Christianna Scheetz for her own debt. This necessarily raises the question of the right of the defendants to maintain an action against Mrs. Scheetz, which it is claimed will lie against her under the Act of 22d of February 1718, 1 Smith’s Laws 99, and the Act of 4th of January 1855, Pamph. L. 430. It is not doubted that the evidence shows such a desertion of Mrs. Scheetz by Jacob, her husband, as brings her within the provisions of the Act of 1855, and this leads into an examination of these provisions, in order to determine the question of her liability to suit for her maintenance. The Act of 1855 is much wider in its range than the Act of 1718. It is entitled an act relating to certain duties and rights of husband and wife and parents and children. The first section regulates the power of a married woman to dispose of her property by will, as between her husband and herself. The second provides for the case of husbands deserting their wives, or neglecting or refusing to maintain them, and consists of two branches. The first branch declares that she shall have all the rights and privileges secured to a feme sole trader under the Act of 1718, and be subject as therein provided. The second branch declares that her property, real and personal, howsoever acquired, shall be subject to her own absolute disposal during life or by will, and in case of intestacy shall go to her next of kin, as if he were previously dead. The third section provides for the case of children and their mother’s rights and duties, in case of their father’s neglect or refusal to maintain them. The fourth section appoints a mode of declaring a wife a, feme sole trader. Further regulations are contained in the remaining sections. A consideration of the entire Act of 1855 makes it evident that the rights and privileges of a married woman deserted by her husband or left unprovided for by him a.re not exactly correlative to her liabilities, and that the former are more extensive than the latter. The liabilities expressly provided for in the Act of 1855, are those contained in the first branch of the second section, which secures to her the privileges of a feme sole trader under the Act of 1718, and makes her “ subject as therein provided.” This sends us to the Act of 1718 to ascertain the extent of her liability. The first section declares that “ when any mariners or others are gone, or shall hereafter go to sea, leaving their wives at shopkeeping, or to work for their livelihood at any other trade in this province, all such wives shall be deemed, adjudged and taken, and are hereby declared to be, as feme sole traders, and shall have ability, and are by this act enabled to sue, and be sited, plead and be impleaded at law in any court or courts of this province, during their husband’s natural lives, without naming their husbands in such suits, pleas or actions; and when judgments are given against such wives for any debts contracted, or sums of money due from them since their husbands left them, executions shall be awarded against the goods and chattels in the possession of such wives, or in the hands or possession of others in trust for them, and not against the goods and chattels of their husbands,” &c. From the terms of the Act of 1718, it is very evident that the liability of a married woman for her own debts as a feme sole trader, arises out of the fact that she follows some trade or business at which she works for a livelihood. Indeed it is only in the prosecution of such a calling that she is likely to contract debts, or be entitled to claims, requiring the aid of the law by suits for or against her. This is one of the points decided in Jacobs v. Featherstone, 6 W. & S. 346, where issue was taken on the fa.ct whether the defendant, Mrs. Featherstone, was a feme sole trader within the meaning of the Act of 1718. The court below nonsuited the plaintiff on the evidence, and this court, in affirming the judgment, said that there is no feme sole trading by married women except as regulated by the Act of 1718. “ It is her being left to contract debts for which her husband’s person cannot be reached by process, that gives her the credit and subjects her to the responsibility of a feme sole.” Stress was laid also on the fact that the husband was resident in the same city with her when the debt was contracted. If then, as the act clearly imports, there must be a business in which credit is given to the wife out of which the rights of creditors must spring, it is manifest the wife must elect to pursue a business before any liabilities can exist under the Act of 1718. The fact that the Act of 1855, extending the provisions of 1718 to wives deserted or neglected by their husbands, provides for a certificate to be issued by the Court of Common Pleas on her petition, to declare her a feme sole trader, strengthens the position that it is only to married women pursuing a business or trade, the liabilities of the Act of 1718 extend. This certificate is not essential to her power to contract as a feme sole, as held in Black v. Tricker, 9 P. F. Smith 13. Her rights result from the fact of her husband’s desertion or neglect to provide for her, and not the certificate. But, the object, as stated by the Act of 1855, being to enable creditors, purchasers and others, to transact business with her, with safety and certainty, it evidences the understanding of the legislature that she would be engaged in some business requiring this precaution to enable creditors to deal safely with her. What we have now said is therefore entirely consistent with the opinion in Black v. Tricker. There the question arose as to the wife’s right of property under the second branch of the Act of 1855. Here the question is upon her liability for the payment of debts under the first branch of that section extending to her case the provisions of the Act of 1718 as to feme sole traders. In Black v. Tricker we held that a wife’s acquisitions, after the desertion of her husband, will be protected under the Act of 1855 from her husband’s creditors. Here we now hold that a wife is not liable for debts as a feme sole trader under the Act of 1718, as extended by the Act of 1855 to cases of desertion, or neglect or refusal of her husband to provide for her, unless she has engaged in some trade, business or employment pursued by her for a livelihood, to constitute her a trader. The evidence here shows that the husband of Mrs. Scheetz resided in the same city with his wife, and was engaged in business ; and does not show that she was ever engaged in business or worked at any trade or employment for a livelihood in the course of which the debt in question was created. The bill proposed to be set off was one for boarding, for which, so far as it now appears, her husband Was liable. To hold under such circumstances that her separate estate shall be made liable for her maintenance, would make her condition since the Act of 1855 worse than it was before. It would also contravene the Married Woman’s Act of 1848, which protects her property from execution for debts, even for her maintenance, unless the property of her husband shall have been first exhausted. The Act of 1855 does not repeal the Act of 1848 in terms, and no repeal can be implied except for plain repugnancy. Such repugnancy nowhere exists, except in the first branch of' the second section, which subjects a married woman to the law relating to feme sole traders under the Act of 1718. The Act of 1848 being a general law regulating the condition of married women as to their property, thus standing unrepealed, strengthens the position that they cannot be made liable for debts unless when engaged in trade or business, according to the terms of the Act of 1718. We think the learned judge was right, therefore, in holding that the .set-off was not good under the evidence, and the judgment is affirmed.