statute. The Legislature has used words which by their explicit, comprehensive and unmistakable meaning embrace fines as well as taxes and debts, If, after using the words "dues and demands," they had intended to exclude fines, how easy it would have been to have added the words, except fines" after the words dues and demands." But having used these broad and comprehensive terms, which, by their common and explicit meaning, embrace fines, and having used no words of exception, it follows, upon every rule of construction, that fines are embraced in the terms "dues and demands."

66

This construction, which would seem to be free from all doubt, if it rests upon the language of the act, is objected to upon two grounds. First. It is insisted that fines are imposed, as one of the potent means of punishing offenses against the law, and that the offender does not satisfy the judgment of the court if he pays an amount less than the fine assessed against him, which he does if he may pay in coupons instead of money (the coupons being at a discount). In answer to this view, it is sufficient to remark that the State has a right to say and has said, in the act of her Legislature under consideration, how her demands against her citizens shall be satisfied, how the liabilities" due to her shall be discharged. It might, with the same propriety and with equal force, be argued that debts and taxes due the Commonwealth are not fully discharged by payment in coupons, and yet this is done every day under the statute law, sustained and enforced by the judgment of this court. But in point of fact the judgment for the fine is discharged to its full extent, so far as the State is concerned, because the coupon represents the obligation of the State for the face value of the coupons offered in payment of the fine.

Second. It is objected that fines are dedicated by the Constitution and by statute enacted in pursuance thereof, to the literary fund for school purposes, and if the act under consideration embraces fines, to that extent it is unconstitutional.

Now, it is to be observed that neither the Constitution, nor any act passed in pursuance thereof, requires the collectors of the public revenues, nor the auditor, to keep separate and distinct each particular fine assessed against offenders, and pay it over as collected to the literary fund; but the requirement is, upon fair construction, to turn over to the literary fund whatever amount may come into the treasury from the source of fines, and dedicate that amount to the purpose indicated. This same argument was pressed most vigorously in the case of Antoni v. Wright, and was answered, I think, successfully and by the lamented Judge Bouldin-and I prefer to adopt his views, so clearly and ably put, rather than mar or weaken them by words or views of my own. He says:

But it is argued that the contract in this case is void because it is repugnant to the 7th sec., 8th art., and 3d sec., 10th art., of the State Constitution, dedicating certain portions of the State revenue to the support of free schools. We think there is no such conflict in the case. * ** * It only requires that the obligations of succeeding Legislatures shall be firmly met; that there should be what the creation of every new debt imperatively demands, to wit: an increase of taxation if the existing rate be insufficient. The argument is based on the assumption that subsequent Legislatures will fail in their duty, and pursue such a course as may result in malappropriation of the funds

referred to; that they will decline to meet faithfully the high obligation resting on them, and then rely on the irregular consequences of their own default, as an argument against the validity of the debt for which they will have failed to provide. The malappropriation which would follow, would not be the legitimate result of the Funding Act, but in effect would be the act of the Legislature failing to discharge its duty. The obligation to provide for the interest due by these coupons is as high as the duty of applying the capitation tax and other funds to the schools. Both duties are alike obligatory and both may be discharged, as there is no conflict between them. It is only by a failure to discharge the one that the performance of the other can be put into jeopardy, and it rests with the Legislature, by faithfully and fearlessly meeting both obligations, to preserve the plighted faith of the State and protect her Constitution from violation."

After this opinion of the court, delivered by Judge Bouldin, was announced, there was a motion for a rehearing, submitted by the attorney-general, and the court held the case under advisement, for several weeks, anxious to correct its decision, if it should appear in any respect to be erroneous, and to give to the case that calm and careful reconsideration which the gravity and importance of the question involved required. After a candid and anxious review of the case, the court could find no reason to change its opinion, but was confirmed in the justice and reasons of its conclusions. In delivering the judgment, upon a motion for a rehearing, Judge Anderson, in an able and exhaustive opinion, discusses the whole question, re-affirming and enforcing the views of Judge Bouldin. And in these views the same judges concurred as in the original decision. I mention this to show with what deliberation and care the questions involved in the case of Antoni v. Wright were considered, and the futility of again considering these questions except to re-affirm and adopt the principles of that case so far as they apply to the case before us.

*

**

With respect to the argument made in that case, as it was pressed in this case, that fines and other revenues were dedicated to the school fund, and, therefore, cannot be paid in coupons, Judge Anderson, in his opinion (22 Gratt. 874), says: * "It is said that those provisions of the Constitution which set apart certain funds and a certain proportion of the tax for the public schools would be defeated by this legislation. It would seem to be a sufficient reply to say that if it were impracticable to raise a sufficient amount of revenue for both purposes, the latter did not impose an obligation on the Legislature paramount to the obligation to provide for the payment of the interest on the public debt. That was an obligation antecedent and paramount to the Constitution itself and could not be repudiated by the Constitution if it had so provided. But it is not repudiated nor ignored, but the obligation is clearly recognized by sections 2, 8, 19 and 20 of art. 10, at least to pay Virginia's proportion. And, furthermore, this being an obligation of debt and not eleemosynary in its character as are the other provisions referred to, and however desirable and important it may be that they should be carried out, I hesitate not to say this is of higher obligation. But there need be no clashing of duties here. It is only required that the Legislature should levy a tax sufficient for both objects a duty imposed on it by the Constitution. It has not been the practice to set apart in the public treasury the identical money

received for the public schools; nor is it required by this Constitution, nor the acts of assembly. And the Legislature has discharged its constitutional obligation when it has set apart the required amount for that purpose."

These views, expressed both upon the first hearing and the rehearing of the case of Antoni v. Wright, are applicable to the case before us, and must govern our decision in this case.

Much has been said in the case before us about the sacredness of the school fund and the paramount obligation of the State to educate the people. This is a great and high obligation, and no doubt will be faithfully and firmly met by the Legislature. But however great and high this obligation, it cannot and ought not to be met, at the sacrifice of other obligations equally sacred, and other duties equally high and binding. A State, like an individual, must be just before it is generous. No honest man can or will abstract from his creditors what is justly due them in order to give it to his children. No State, in order to educate its citizens, ought to withhold from its just creditors that which has been pledged, by its honor and plighted faith, to the payment of its just debts. Both obligations must and will be met. The people must be educated, but they must not be educated at the price of repudiation and dishonor. Better would be ignorance than enlightenment purchased at such a fearful price. In conclusion, I will repeat here the utterance of the unanimous voice of this court in the Homestead Cases, 22 Gratt. 301, when it declared that "No State and no people can have any real and enduring prosperity, except where public faith and private faith are guarded by laws wisely administered and faithfully executed. The inviolability of contracts, public and private, is the foundation of all social progress, and the cornerstone of all the forms of civilized society when an enlightened system of jurisprudence prevails. Under our system of government it has been wisely placed under the protection of the Constitution of the United States, and there it rests secure against all invasion."

It only remains for me to say that the petitioner has the right under the law to discharge the fine imposed upon him by the Hustings Court, with a coupon of a bond of the State, which the State has agreed to receive in payment of "all taxes, debts, dues, and demands due the State," and that he must be discharged from further custody.

Staples, J., dissented.

RECENT AMERICAN DECISIONS.

SUPREME JUDICIAL COURT OF MAINE.*

CARRIER.

Passenger not traveling with trunk: liability of carrier.-A railroad company is not obliged to carry as baggage the trunk of one who does not go by the same train. Upon receiving the trunk of such person to be forwarded it is received as freight, and the duties and liabilities of a common carrier attach, with the right to a reasonable compensation for transportation. (Wilson v. Grand Trunk, 56 Me. 60, and 57 id. 138, affirmed.) Graffam v. Boston & Maine Railroad Co.

To appear in 67 Maine Reports.

CONSTITUTIONAL LAW.

1. Exemption from taxation: legislative authority: municipal corporation.-It is within the constitutional authority of the Legislature, to empower the city council of the city of Portland, to exempt from taxation for a term of years property belonging to the Portland Water Company, in consideration of an undertaking and agreement by the company to furnish, free of cost to the city, a supply of water for its public and municipal purposes. City of Portland v. Portland Water Co.

2. Municipal legislation: validity of.—Under an act of the Legislature, authorizing an exemption for six years, a vote of the city council to exempt for five years, is valid. The term of exemption does not necessarily commence running from the passage of the act by the Legislature, but may begin when the exemption is voted by the city council, if the vote is passed within a reasonable time afterward. Ib.

3. Authority to city to exempt property to be acquired. The legislative act allowed the exemption to extend to property of the company not in existence when the act was passed. Held, that this would include, as taxable, all real estate at a value according with the condition it was then in, and would exclude all personal property acquired after that time. Ib.

CONTRIBUTORY NEGLIGENCE.

Crossing railroad track in front of moving train.The plaintiff in his declaration stated that he being in a narrow fenced lane leading to the crossing over the defendants' railroad, and distant about two and a half rods from its track, and perceiving the defendants' train forty rods from, but approaching the crossing, he being distant seven rods therefrom, attempted to cross the track before the train should reach it; that his attempt was unsuccessful, and that he was injured. Held, on demurrer to the declaration, that on the plaintiff's statement of facts he was not in law entitled to recover. Grows v. Maine Central Railroad Co.

DAMAGES.

On failure by employer to permit performance of contract for personal services.-The plaintiff contracted with the defendants to play first old man and character business for thirty-six weeks. At the close of the nineteenth week the defendants discharged the plaintiff without fault on his part, who commenced an action for breach of the contract during the next week. Held, that the action was not premature; held, also, that the plaintiff was entitled to recover as damages for the remainder of the term at the stipulated rate, less what he actually earned or might have earned by the exercise of reasonable diligence, with interest; that having obtained another contract within the line of his profession within the time of his original contract with the defendants, the sum which he might have earned thereby to the time when his contract with the defendants expired, should be deducted from the contract price with the defendants. Sutherland v. Wyer.

tended by and embraced in the statute and prohibited from sale," is one of fact for the jury and not one of law for the court. State v. Starr.

MUNICIPAL CORPORATION.

Not liable to one injured by defect in highway while racing.-An action does not lie against the town in favor of a person who receives an injury from a defective highway, while using such highway for the express purpose of horse-racing, and matching his horse for speed against other horses. Semble: Aliter, if the fast driving was merely incidental to traveling upon the highway for any of the legitimate purposes for which a highway is designed to be used. McCarthy v. City of Portland.

PATENT.

Contract for royalty under litigated patent valid.—If a patentee, in consideration of a royalty, grants to another a license to use his patent, who uses it, the patentee's right being in litigation and that fact known to the licensee, he not having been interfered with, cannot plead in defense that the invention was not new nor that the patentee was not the first inventor. Jones v. Burnham.

SALE.

Of personal property: transfer of title: fraud.—If C. delivers his oxen to T. as a pledge to secure payment of a note, and T. afterward permits them to remain in C.'s possession to be redelivered if C. does not pay the note in a week, a subsequent purchaser of C. within the week, without fraud against T., acquires a valid title against him. If there is no delivery from C. to T., and the transaction between the parties is an agreement merely that the oxen shall be held as security, to be taken by T. in case of failure to pay the note, then T. takes no title and cannot contest the title of a subsequent purchaser, though his purchase was fraudulent. Mosher v. Smith.

TROVER.

Mistaken removal of fence under authority of town officer.-Trover lies against a person who removes a quantity of fence from the land of its owner, although such person was acting at the time under the direction of town officers and mistakenly supposed the fence to be upon the land of the town. Smith v. Colby.

RECENT BANKRUPTCY DECISIONS.

CHATTEL MORTGAGE.

Assignee in bankruptcy cannot maintain trover for mortgaged property against mortgagee.-Where, before the commencement of the proceedings in bankruptcy, the holder of a chattel mortgage executed by the bankrupt took possession of the mortgaged property and appropriated it to his own use, held, that the assignee could not maintain an action of trover to recover the value of such property. U. S. Circ. Ct., New Jersey. Jones v. Miller, 17 Nat. Bankr. Reg. 316.

COMPOSITION.

When creditor entitled to double security: refusal to pay composition.-Defendants, who were indorsers of a promissory note, were adjudged bankrupts before its maturity, and proposed a composition at fifty cents on the dollar, which was accepted and recorded, the note being entered on their schedule as held by the party from whom plaintiff had received it, plaintiff having no

knowledge of the proceeding, and not assenting thereto. After the maturity of the note the makers were adjudged bankrupts, and offered a composition of fifty per cent to the creditors, including plaintiff, which was accepted and duly performed. The defendants then offered to pay fifty-five per cent of the balance remaining due, which was refused. Held, that plaintiff was entitled to its double security; that, as the note was not provable in bankruptcy before maturity, it could not be satisfied by the composition, and that, even if it could, the defendants, having refused to pay according to their composition, could not protect themselves by it from an action at law. Sup. Jud. Ct., Massachusetts. National Mount Wollaston Bank v. Porter, 17 Nat. Bankr. Reg. 329.

DISCHARGE.

1. What it bars.-A discharge in bankruptcy bars the collection of a claim for the purchase-money of land which has been allotted to the debtor as a homestead in the bankruptcy proceedings. Sup. Ct., North Carolina. Hoskins v. Wall, 17 Nat. Bankr. Reg. 314.

2. Does not operate as payment: husband and wife. -A discharge in bankruptcy does not operate as a payment, but is simply a bar to the enforcement of the obligation; and, unless pleaded in defense by the debtor, it is waived. The discharge of the husband in bankruptcy cannot be pleaded by the wife in bar of an action against her, under the laws of Louisiana, to recover her half of a community debt, where she has accepted a community. Sup. Ct., Louisiana. Ludeling v. Felton et al., 17 Nat. Bankr. Reg. 310.

GENERAL ASSIGNMENT.

1. An act of bankruptcy: when it will not prevent discharge.-The making of a voluntary general assignment by a debtor is an act of bankruptcy of itself. But to prevent a discharge, the assignment must have been made, not only in contemplation of bankruptcy, but with intent to prefer some creditor, or for the purpose of preventing the property from coming into the hands of the assignee in bankruptcy, or from being distributed in satisfaction of his debts. U. S. Dist. Ct., N. D. Illinois. In re Croft Brothers, 17 Nat. Bankr. Reg. 324.

2 Partnership: homestead: when discharge refused. -Partnership assets are a trust fund for the payment of the firm debts, and no exemptions can be set apart from them to the individual partners until all the partnership debts are paid. The bankrupts made a general assignment for creditors. One of the members of the firm, whose homestead, which had been paid for and furnished out of the partnership earnings, was held in his wife's name, took from the assignee the amount he claimed as exemptions, and continued business in his wife's name. Subsequently the bankrupts were adjudicated in voluntary proceedings. On application (for a discharge, held, that the assignment was made in contemplation of bankruptcy and for the purpose of preventing the property of the firm or some part of it from coming into the hands of the assignee for distribution, and that a discharge should be refused. Ib.

LEASE.

One valid against bankrupt is valid against assignee. --A lease of property owned by the bankrupt, which is valid against him, although not recorded as required by the statute of the State, is valid against

the assignee, although he had no knowledge of its existence. Sup. Jud. Ct., Maine. Goss v. Coffin, 17 Nat. Bankr. Reg. 332.

MORTGAGE.

When mortgage creditor cannot prove claim for deficiency: valuation of security.-A creditor of the bankrupts, holding security by way of mortgage upon real estate, obtained leave of the bankrupt court to foreclose his mortgage in a State court, sold the real estate under the decree of foreclosure, and proved his judgment for deficiency on the sale as a claim against the estate. On re-examination of the claim, held, that he could not prove for his deficiency; that if he desired to do so, he should have taken the necessary steps to obtain a valuation of his security in the manner prescribed by section 5075. The ordinary order granting leave to foreclose a mortgage upon the bankrupt's property, cannot be construed as directing that the value of the creditor's security be ascertained by a sale under a decree of foreclosure. Dist. Ct., N. D. New York. In re Herrick, 17 Nat. Bankr. Reg. 335.

TRUSTS.

Default of factor.-The default of a factor in not making payment to his principal is not a fraud, nor is the debt created by such defalcation, " while acting in any fiduciary character," within the meaning of section 33 of the Bankrupt Act. Only technical or special trusts, as contradistinguished from those which the law implies from the contract, are within the meaning of the section. U. S. Circ. Ct., W. D. Pennsylvania. Keime v. Graff & Co., 17 Nat. Bankr. Reg. 319.

UNITED STATES SUPREME COURT ABSTRACT. CONSTITUTIONAL LAW.

Law impairing obligation of contract: corporate charters: consolidation of existing corporations: amendment of charter.-Charters were granted to two railroad companies, in each of which it was provided that a specific tax therein named, and that only, should ever be levied or assessed on the corporations, or any of their franchises, and that the charter should not be revoked, annulled, altered, limited or restrained without the consent of the corporation. Subsequently under legislation for that purpose the corporations consolidated and formed a new corporation, which were by the statute under which the consolidation was made to have all the powers, privileges and immunities of each old corporation, but the new corporation was subject to the general law of the State providing that corporate charters could be altered. Held, that the new corporation could not claim immunity from taxation under the provisions of the charters of the old corporations constituting it. Judgment of Supreme Court of Maine affirmed. Maine Central Railroad Co., plaintiff in error, v. State of Maine. Opinion by Field, J. Strong, J., dissented.

EVIDENCE.

Burden of proof: negative allegation.-When a negative allegation involves a criminal neglect of duty, official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it, for in these cases the presumption of law, which is always in favor of innocence and quiet possession, is in favor of the party charged. Accordingly in an action against a collector of customs duties to recover for an alleged illegal exac

tion of duties, held, that it devolved upon the plaintiff to make out his case by showing the illegality complained of. Judgment of U. S. Circuit Court, S. D. New York, reversed. Arthur, plaintiff in error, v. Unkart. Opinion by Hunt, J.

JURISDICTION.

Of Court of Claims.-The Court of Claims has jurisdiction of a suit brought to recover an amount allowed by the commissioner of internal revenue upon the claim of a brewer for an excess of special tax stamps used by him in payment of the special tax upon his business at the beginning of the year, when, at the close, it was found he had manufactured less than five hundred barrels, and the payment of the amount so allowed had been refused upon proper application to the disbursing officers of the Treasury Department. Judgment of Court of Claims reversed. United States, appellants, v. Kaufman. Opinion by Waite, C. J.

REAL ESTATE.

Open possession operates as notice of title.-In Illinois actual, visible, and open possession of real estate is equivalent to registry of the conveyance thereof, and operates as notice of title to creditors and subsequent purchasers. Decree of U. S. Circuit Court, N. D. Illinois, affirmed. Noyes, appellant, v. Hall. Opinion by Clifford, J.

STATUTES.

Repeals of revenue laws by implication not favored.— Repeals by implication of revenue and collection laws, except when the prior laws have been subjected to a general statutory revision, are not favored in legal decision, unless it appear that the prior provision has been re-enacted in the new regulation, or that the later act is repugnant to the former, and the Revised Statutes provide in express terms that whenever an act is repealed which repealed a former act, such former act shall not thereby be revived unless it shall be expressly so provided. (Rev. Stat., § 12, p. 2.) Judgment of U. S. Circuit Court, S. D. New York, affirmed. Kohlsaat, plaintiff in error, v. Murphy. Opinion by Clifford, J.

NOTES OF RECENT CRIMINAL DECISIONS.

INTENT: WHEN ESSENTIAL TO OFFENSE.-Defendant was indicted for selling intoxicating liquor in violation of the provisions of the act to provide against the evils resulting from the sale of intoxicating liquor in the State of Ohio. It was held by Ashburn, J. (Scott, J., dissenting), that where one does an act in apparent violation of a criminal statute, but under circumstances that tend to show a want of guilty intention, he may be allowed to introduce as evidence, to show his good faith, or that he was ignorant of the facts. that made his acts criminal, the excusing circumstances. Farrell v. State, Sup. Ct. Ohio, Dec. 1877.

MALT LIQUORS: LAGER BEER PRESUMED TO BE. -In a prosecution under a statute against selling “ale, wine, rum or other strong or malt liquors " without a license, the government, without introducing evidence that lager beer is either a strong or malt liquor, simply proved the selling of a glass of lager beer. Defendent contended that in the absence of evidence to prove that lager beer is either a strong or a malt liquor, the jury could not find a verdict of guilty, and moved a dismissal of the complaint. Defendant also requested the court to instruct the jury, that, before they could render a verdict of guilty, they must be

satisfied that from the proof the lager beer claimed to be sold was either a strong or malt liquor. The motion and request were denied. The defendant excepted and appealed. Held, that although the government does not name lager beer in the prohibitory clause of its statute, it does name it in prescribing the license fees "for a license to sell lager beer, ale and other malt liquors only, at retail only," the fee shall be "not less than fifty dollars, etc. ;" that in view of the fact of its recognition in the statutes, as a malt liquor, the court might rightly assume that it is such, and that it would not be necessary for the government to show by proof that lager beer is a malt liquor. State v. Goyette, 11 R. I. 592.

CONVEYANCE OF LAND TO HUSBAND AND WIFE SINCE MARRIED WOMAN'S ACTS.

To the Editor of the Albany Law Journal:

SIR-I have read with pleasure the communication of your correspondent J. C. L., in your issue of 4th inst. My "skepticism" is so deep seated that it will not be entirely removed, until the Court of Appeals shall decide the precise question in hand. I know of no case involving it; pausing there, and perhaps a brief resume of the authorities, and a word or two in reference to the matter may be of service to the profession.

Goelet v. Gori, 31 Barb. 314, seems to have been the pioneer case. It arose on demurrer at Special Term, and all the court decided was that the joint and several covenant of husband and wife-who were joint lessees for a term of years-to pay rent did not per se bind the separate estate of the wife. There was no charge upon her separate property; and the court held that her covenant did not bind her.

The court (Judge Sutherland) says: "The statutes were intended to enable married women to take, and hold, and dispose of property, as if they had no husbands.

In Farmers and Mechanics' Bank v. Gregory, 49 Barb. 155, a judgment creditor of the husband sought to reach money in the hands of his wife, received by her on a sale of lands which had been conveyed to her and her husband, and held by them as joint tenants, under a conveyance, which in terms describes them as such. The court decided that the money did not belong exclusively to the wife, but must be applied to the payment of the judgment, and that the referee who had held that the husband and wife were each entitled to a moiety of the proceeds had committed no error of which the wife could complain. All else is obiter, and the only authority as to the effect of the statutes in question, cited by the learned and lamented judge, is Goelet v. Gori, supra.

The point under discussion was not then necessarily involved in either of these cases.

In Miller v. Miller, 9 Abb. (N. S.) 444, the supposed controlling authority of these cases led the court at Special Term (Murray, J., contrary to his own convictions), to decide that husband and wife were not tenants in common, of lands conveyed to them since the statutes.

In Freeman v. Barber, 3 N. Y. Sup. (T. & C.) 574, it was decided that the wife could not maintain an action for use and occupation of, or waste on lands, given to her and husband by parol: The husband and wife went into possession of lands under a parol gift, the

terms of which-as will be seen by reference to the case of Freeman v. Freeman, 51 Barb. 307 (S. C., 43 N. Y. 35)-do not fairly present the question as to the effect of a conveyance of land to husband and wife, in fee, with no particular designation of the character of the tenancy. The only authorities cited in Freeman v. Barber for what the court characterises as res adjudicata on this subject, are Goelet v. Gori, F. & M. Bk. v. Gregory, supra.

In Beach v. Hollister, 5 N.Y. Sup. (T. & C.) 568, all the court decided was, that the husband's interest in lands conveyed to husband and wife could be sold on execution against him, and the grantee in the sheriff's deed could recover possession of the property, and this notwithstanding a divorce a vinculo had been procured by the wife. Justice Mullin dissented. See 3 Hun, 517, S. C.

All else is obiter. The only cases cited from our reports are Goelet v. Gori; F. & M. Bk. v. Gregory; Freeman v. Barber, supra. The cases cited from Michigan and Pennsylvania are not applicable. Their statutes differ from ours.

In Baker v. Lamb, 11 Hun, 519, all that is decided is, that a married woman is not seized of a separate estate in lands conveyed to husband and wife, sufficient to charge the same with the payment of a promissory note made by her, and no express charge having been made, she was not liable on the note. The point was not necessarily involved in the decision of Baker v. Lamb. The cases of F. & M. Bk. v. Gregory, and Beach v. Hollister are the only ones cited, as bearing upon it.

In Meeker v. Wright, 11 Hun, 533, the action was brought for the foreclosure of a purchase-money mortgage executed by a wife to her husband, of lands originally conveyed to husband and wife, and afterward conveyed by husband to wife. The court held the deed and mortgage void in law, and the latter not enforceable in equity. The learned judge cites only the case of F. & M. Bk. v. Gregory in support of the position that the old rules as to the effect of the conveyance to husband and wife are not affected by the Married Women's Acts. Here, again, I think the point in question was not necessarily involved in the decision. I do not find in any of the cases above referred to au analysis of the statutes in question, or their comparison with the rules which prevailed at common law.

Clearly, the effect of the decisions in F. & M. Bk. v. Gregory, and Beach v. Hollister, is to fasten on the wife, in respect to the estate conveyed to herself aud husband, all the common law disabilities of coverture, to subject her "interest therein, and the rents, issues and profits thereof," during their joint lives, to the absolute control, possession of and alienation by her husband, as well as to liability for his debts.

In Moore v. Moore, 47 N. Y. 467, it is held, that a wife can hold an equal undivided half part of real estate, as tenant in common with her husband, and can maintain an action for partition against him.

In Wright v. Wright, 54 N. Y. 444, the court (Reynolds, C.) says: "I do not see why a married woman may not sue her husband, to enforce any right affecting her separate property, in any form of action in the same manner that she may sue any stranger, and such, I think, is the judgment of the court." Citing