Palmes v. The L. & N. R. R. Co.-Opinion of Court. purpose by one owner rather than another. If exempted. it must result from the admitted power to exempt the property as property not because of the character of ownership. It may be true that ownership and use may prompt the legislative action and may be made the method of identification of the subject-matter of the exemption, but the power is not controlled or modified by the nature of the subject upon which it acts or its ownership. Viewed as a question of power in the Legislature, whether a saw or a hammer is in the hands of a merchant or a mechanic is immaterial; so also is it immaterial whether it is used to construct a church or a penitentiary. It was the practice of the Legislature to allow exemptions under the Constitution of 1839, from the time of its adoption to the time when it ceased to be operative, and the power to make such exemptions has never been questioned. The rule we state is the general rule following a fair construction of the Constitution. In this case, however, we are dealing with a species of property which had an especial standing and status under the Constitution of 1839. The legality of the exemption allowed here is to be determined not alone by a reference to the clause of the Constitution regulating the power of the Legislature in the matter of taxation, but also in view of the provisions of Section I, Article XI., of the Constitution, which made it the duty of the State government not only to encourage the system of internal improvements to which this road belonged, but also to provide for a suitable application of such funds as may be appropriated for such improvements. Under these circumstances the roads belonging to this system constituted a distinct class of railroads, so far public in their nature as under the Constitution to be the beneficial object of an appropriation of public funds. An exemption from taxation was a very proper method of encouragement. It was Palmes v. The L. & N. R. R. Co.-Opinion of Court. but an indirect method of appropriating, for the benefit of this road, an amount of public moneys equal to the amount of its taxes, and this power on one can, with reason, deny. As to the remaining question, as stated, we are not prepared to say with absolute certainty that the case of Wilson vs. Gaines, 103 U. S., 417, decided since the case of Gonzalez vs. Sullivan, 16 Fla., 791, does not control this case. While the cases are not precisely similar, yet looking to the opinion rendered in that case (the case of Wilson vs. Gaines), and the manifest tendency of the court, we cannot affirm that the Supreme Court of the United States would not in this case hold that the exemption here was an immunity which, upon the acceptance of the provisions of the Internal Improvement Act by the Alabama and Florida Railroad Company, attached to it as a "personal privilege," and that it did not follow the road through the several transfers by which it became the property of the Louisville and Nashville Railroad Company. The law of the obligation of contracts as affected by State legislation is under the Constitution of the United States a matter of Federal rather than State jurisdiction, and it is our wish, as it is our duty, to do all we can consistently to give the people of this State the benefit of the action of that jurisdiction, which is the proper forum to settle this important question. Under the peculiar legislation of Congress calling into action the jurisdiction of the Supreme Court of the United States, the decision here must be in favor of the validity of the statute imposing this tax, in order to its review by the Supreme Court of the United States. It was insisted upon the hearing of this cause that, in view of the antecedent decision of the case of Gonzalez vs. Sullivan, the action of the Circuit Court was proper. We think the Judge of the Circuit Court very properly left it to this tribunal to modify or change its own decision, but the case when it reaches us must be disposed Staley v. Hamilton et ux.-Statement of Case. of according to our judgment now. Contrary to our usual practice, but in conformity to our admitted power, the judgment of this court will dispose of the case without a remittitur. The order of the Circuit Court awarding an injunction is reversed, the injunction is dissolved and the bill is dismissed. CAROLINE B. STALEY, APPELLANT, VS. A. B. HAMILTON ET UX., APPELLEES. 1. Where money is loaned upon the urgent importunity of a wife and her husband for the use of the husband, the wife joining him in making a promissory note for the money, she being possessed of separate real property, and not giving a valid security by mortgage or otherwise on such property, equity will not charge her separate property with the indebtedness. 2. The only manner in which a married woman, living with her husband, can create a charge upon her separate property for an indebtedness not incurred on account of the beneficial nature of the consideration as enuring to the benefit of her property or estate, is by some deed, mortgage or other instrument of writing duly executed and acknowledged according to the statute. 3. A charge upon a married woman's separate property may arise in equity, where it must be necessarily inferred from the fact that the debt is contracted for the benefit of her property or estate, in analogy to the doctrine of equitable lien for purchase money, that she intended the payment to be made out of her own property, or where, living separately from her husband, the debt is contracted by her for her own personal benefit. Appeal from the Circuit Court for Jackson county. The respondents (May 11, 1868,) filed their bill against appellant, alleging that on May 4, 1866, the appellant and her then husband, now deceased, borrowed of Mrs. Hamil ton $1,000 in gold coin, for which they (Staley and wife) Staley v. Hamilton et ux.-Statement of Case. promised to pay Mrs. Hamilton on December 30th then next $1,200 in legal tender of the United States, with interest at 8 per cent. from May 4, 1866; Mrs. Staley paid $178.23 on August 28, 1867. At the time of making such contract Mrs. Staley was the owner of lots 36 and 43 in Marianna, "said property being highly improved by an excellent and commodious dwelling-house and out houses, and being her separate and sole property. Mr. Staley died in April, 1867, leaving as complainants are informed and believe, no visible property upon which a judgment could rest sufficient to pay any part thereof." He, as complainants are informed and believe, at the time of making such contract, had no visible property within the knowledge of complainants upon which any faith of credit could attach. Mrs. Staley, at the time of making such contract, received in person from said Mrs. Hamilton the said coin. At the time of making such contract, and several times before, "she freely and voluntarily, and without any compulsion, constraint, apprehension or fear from her said husband. proposed, promised and offered to make and execute a legal and valid mortgage on said lands to said Mrs. Hamilton as collateral security for said debt, and Mr. Staley promised to join in the execution thereof, but neither of them has done so. Complainants believe and represent that Mrs. Staley will fraudulently dispose of her said property (if she has not done so) to avoid the payment of said debt. Prayer for an injunction and that the said property be held subject to and sold for payment of said debt, and that Mrs. Staley be decreed to pay the debt." On same day an order was made for an injunction to issue on bond of $500 being given. It issued, but no bond appears to have been given. On April 4, 1878, Mrs. Staley demurred, and November 18, 1878, an order was made sustaining the demurrer and allowing amendment. Staley v. Hamilton et ux.-Statement of Case. December 23, 1878, the complainants amended their bill by alleging that at the time of making the note Mr. S. was in embarrassed circumstances, if not hopelessly insol· vent, and this was well known to complainants; and they repeatedly refused to let him have the money on his own responsibility, but eventually consented to let Mrs. S. have it, provided she would make her separate estate responsible for it, she then owning said property. Complainants did not covenant to do this till strongly importuned by Mrs. S. in person, who repeatedly promised to make her separate estate liable and give a mortgage on the lots if they would lend her the money; that at the time she and her husband executed the note they also executed a mortgage to secure the note; that through inadvertency Mrs. S. failed to relinquish her dower in the lots, but long afterwards acknowledged the justice of the debt and the liability of her property therefor, as complainants are informed and believe, and consented for a judgment to be rendered against her separate estate for the debt. The money was lent to her, for her separate use and benefit, and so used by her. The joint promissory note of Mr. and Mrs. Staley, payable to Mrs. H., endorsed "collected this August 28, 1867. of Mrs. C. B. Staley and paid over to A. B. Hamilton $178, Landrum & Dawkins, attorneys for A. B. Hamilton," is attached as an exhibit, as is also a paper purporting to be a mortgage from Mr. and Mrs. S. on said property to Mrs. H. securing said note, both of which are dated May 4, 1866. There is no acknowledgment by Mrs. S. or Mr. S. of this paper. December 20, 1878, defendants demurred, and May 30, 1879, the demurrer was sustained and permission to amend given. August 6, 1880, the complainants again amended their bill as follows: That said defendant to whom complainants |