Martinez et al. v. Ward et als.—Argument of Counsel. quire in other ways. (Skillman vs. Skillman, 2 Beas., 403; Schouler on Dom. Rel., 242-3.) Of course, if the creditors are entitled to the proceeds of the husband's labor and the wife's labor, they are entitled to the products of their joint labor. Schouler on Dom. Rel., 244-245; 1 East, 432; 2 Bright's H. & W., 297; Hollowell vs. Horter, II Casey, 375. 3. To subject his property to the payment of his debts to them. All of this property was his. In view of their position in the store and his conduct therein, he could not escape responsibility for the goods bought on credit. His wife could not make herself legally responsible for them, and they become his. The goods bought with the borrowed money were also his. The loan was, in law, to him, because the consideration was a promissory note which bound no one but him. Even the security given was property of which he, with his wife, was in possession, and hence, presumably the owner. (Hollowell vs. Horter, 11 Casey, 375.) In this case the court say: "After he (the husband) has traded on borrowed capital until he breaks, and puts forward his wife to trade on borrowed capital for his benefit, is a sure way to imperil if not destroy the credit of both, and such arrangements cannot withstand the scrutiny of creditors." But if any portion of the goods were hers and she is entitled to her own earnings, yet she has intermixed the goods and earnings, and unless she can separate them the creditors of the husband are entitled to all. (Dent vs. Slough, 40 Ala., 518; 2 Bish. Married Women, Sec. 466; Freeman vs. Orser, 5 Duer, 476; Buckley vs. Wells, 42 Barb., 569.) The answer shows the separation to be impossible. But if Chapter 3130 is constitutional the rights of the creditors are still the same. 1. Of course it does not affect their right to subject the Martinez et al. v. Ward et als.-Argument of Counsel. proceeds of his labor. His inability to transfer to her his labor without consideration does not depend upon the marital relation, but upon the law that one in debt cannot transfer any property to another, without consideration, as against his creditors. 2. Nor does it affect their rights to subject the proceeds of her labor. For, though the statute be constitutional, it will not be construed to affect rights accrued before its passage. These debts were contracted before the passage of the act, and before she was declared a free dealer. At the time of contraction they had a right to the fruits of her labor, and that right cannot be taken away from them. See Edwards vs. Kersey, 6 Otto, 595. 3. Nor does it affect their right to subject his property. If the statute makes man and wife independent of each other, and subject to ordinary rules as to rights of property as between man and man, still the record shows that the fund in question should be applied to his debts. The fund has been accumulated by the labor of both of them, with money loaned to both of them. They, therefore, became tenants in common of the property. The presumption is, where nothing appears to the contrary, that partners or cotenants have equal interests in the property they own Parsons on Part., 258, and n.; I Parsons Shipping, go; Glover vs. Austin, 6 Pick., 209; Ohl vs. Eagle Ins. Co., 4 Mass., 172. Here the record shows that Mrs. Ward has received mor› than half, and a court of equity will very properly decree the other half to Ward's creditors. Or regarding her as a professed creditor will give her only what she put in; and she has already drawn out more than that. There was actual fraud. Ward's pecuniary situation; his inability to relieve himself; his care to make the seeming change complete, coup Martinez et al. v. Ward et als.—Argument of Counsel. led with the fact that there was absolutely no change of location, business or personnel, except a change of name; that even that change was effected by Ward's credit with his sister and by means of his assuming a new liability by promissory notes, and that there was no change in the object and purposes of the business--being in each case the performance of duties devolving on Ward, and in neither to the benefit of Mrs. Ward, as distinct from her husband -shows a very strong case of actual fraud. S. R. Mallory for Ward et ux. This is an appeal from a decree dismissing complainant's bill on a hearing on bill and answer. That in such a proceeding the answer is to be accepted as absolutely true. (See 13 Metcalf, 356; Brinckerhoff vs. Brown, 7 John. Chancery, 217; and 2 Conn., 18.) The reason for this is, as Chancellor Kent says, that by setting down for hearing on bill and answer complainant cuts off defendant from the benefit of testimony on issue raised by replication. That Chapter 3130, Laws of Florida, is constitutional. See Phelena E. Smith vs. Hiram R. Smith, decided at last term of this court. That the signing of a joint note by two parties is no evidence of a partnership between the parties. (See Hopkins vs. Smith, 11 Johns. Rep., 161.) In their answer both of these defendants assert positively that "all of the money used in the business of Catherine Ward was furnished by her and by none other, and that all that remains in said business is hers and none others." The money was lent to her, a free dealer, doing business on her own account and in her own name, and while with out this assertion, and notwithstanding the fact that James Martinez et al. v. Ward et als.-Argument of Counsel. Ward was insolvent, it might be presumed from the fact of his joining her in signing the note that the money was lent partly, at least, on his credit, it strikes me that in the face of this declaration it is impossible for complainants to successfully contend that James Ward had any interest in that money. Complainant has chosen, by subinitting on bill and answer, to shut out all explanation of the signing of that note by James Ward; in so doing he has obliged himself to abide by the effect of the answer, and that effect is to positively negative the presumption that James Ward had any interest in the money that "was borrowed by" defendant, Catherine Ward, from her husband's sister, Miss Catherine Ward, of Providence, Rhode Island. Complainants claim that the fact that James Ward assisted his wife in her business as a free dealer, without wages, constitutes them partners, is opposed to the fundamental principle of partnership, that there shall be a participation in the profits. The fact that she was a free dealer, under the requirements of our law, separated her entirely from him in the business which she undertook to carry on in her own name, and leaves no room for the presumption that might otherwise grow out of their relation of husband and wife, that his assisting her in her store constituted them partners. The fact that she had been made a free dealer did not relieve him from the moral obligation to do what he could to support his large and helpless family, if he could better do this by aiding her in selling boots and shoes, and at the same time obtain food and clothing for himself, rather than by working for any other dealer on equivalent terms, why should a presumption of partnership. arise from his working with her, any more than it would in the case of his working for any other merchant, wholly free and separate from him in business? Martinez et al. v. Ward et als.-Opinion of Court. THE CHIEF-JUSTICE delivered the opinion of the court. The bill of complaint of appellants shows that in February, 1880, they recovered a judgment against James Ward, on which execution was returned unsatisfied, and that Ward does not possess visible property subject to levy and sale. Other judgments were recovered against him which remain unpaid. He was engaged in the business of conducting a shoe store in his own name, with the assistance of his wife as an employee, when sued, and his stock being levied on he surrendered a portion of his goods to a creditor, and thus reduced the value of his stock to less than $1,000, which was claimed as exempted from levy by law; that his credi: being ruined Ward and his wife procured a bill to be fileri in chancery under Chapter 3130, Laws of 1879, for the purpose of having her licensed as a "free dealer" by the decree of the Circuit Court, and thereby invested with the power to conduct, in her own name, the business which up to that time had been conducted in the name of her husband, and such decree was made by the court; that she is living with her husband; that before said decree was made, and at his instance, goods for replenishing the stock were purchased on credit in the name of Mrs. Ward and placed in the business while conducted in his own name, which goods have never been paid for; that immediately upon obtaining said decree by which she claims to have been made a free dealer the business style under which such trade had been conducted was changed to Catharine Ward, and the same business continued in her name at the same place, the remnant of the stock of James Ward having been put in as part of the stock of goods and new goods purchased and put in therewith, purchased on credit or with money obtained from the sale of his old stock, or |