view) was actually what had happened in the case." Nothing, therefore, was decided respecting the rights of the holder of a timedraft, to which a bill of lading is attached, as against the drawee. The contest was wholly inter alios partes.

Seymour v. Newton, 105 Mass. 272, was the case of an acceptance of the draft, without the presentation of the bill of lading. In that respect it was like Gilbert v. Guignon. No question, however, was made in regard to this. The acceptor became insolvent before the arrival of the goods, and all that was decided was that, under the circumstances, the jury would be authorized to find that the lien of the shippers had not been discharged. It was a case of stoppage in transitu. It is true that, in delivering the opinion of the court, Chief Justice CHAPMAN said, "the obvious purpose was that there should be no delivery to the vendee till the draft should be paid." But the remark was purely obiter, uncalled for by anything in the case. Newcomb v. The Boston and Lowell Railroad Corporation, 115 Mass. 230, was also the case of acceptance of sight-drafts without requiring the delivery of the attached bills of lading, and the contest was not between the holder of the drafts and the acceptor. It was between the holder of the drafts with the bills of lading and the carrier. We do not perceive that the case has any applicability to the question we have now under consideration. True, there, as in the case of Seymour v. Newton, it was remarked by the judge who delivered the opinion, "the railroad receipts were manifestly intended to be held. by the collecting bank as security for the acceptance and payment of the drafts." Intended by whom? Intended by whom? Evidently the court meant by the drawees and the bank, for it is immediately added: "they continued to be held by the bank after the drafts had been accepted by Chandler & Co. (the drawees), and until, at Chandler & Co.'s request, they were paid by the plaintiff, and the receipts, with the drafts still attached, were endorsed and delivered by Chandler & Co. to the plaintiff." In Stollenwork et al. v. Thatcher et al., 115 Mass. 224 (the only other case cited by the defendants in error as in point on this question), there were instructions to the agent to deliver the bill of lading only on payment of the draft, and it was held that the special agent, thus instructed, could not bind his principal by a delivery of the bill without such payment. Nothing was decided that is pertinent to the present case. Bank v. Bayley, reported in the same volume, p. 228, where the

In

instructions given to the collecting agent were, so far as it appears, only that the drafts and bills of lading were remitted for collection, and where acceptance was refused, Chief Justice GRAY said "the drawees of the draft attached to each of the bills of lading were not entitled to the bill of lading or the property described therein, except upon acceptance of the draft." It is but just to say, however, that this remark, as well as those made by the same judge in the other Massachusetts cases cited, was aside from the decision of the

court.

After this review of the authorities cited, as in point, in the very elaborate argument for the defendants in error, we feel justified in saying that, in our opinion, no respectable case can be found in 'which it has been decided that when a time-draft has been drawn against a consignment to order, and has been forwarded to an agent for collection with the bill of lading attached, without any further instructions, the agent is not justified in delivering over the bill of lading on the acceptance of the draft.

If this, however, were doubtful, the doubt ought to be resolved favorably to the agent. In the case in hand, the Bank of Commerce having accepted the agency to collect, was bound only to reasonable care and diligence in the discharge of its assumed duties: Warren v. The Suffolk Bank, 10 Cush. 582. In case of doubt, its best judgment was all the principal had a right to require. If the absence of specific instructions left it uncertain what was to be done further than to procure acceptances of the drafts, and to receive payment when they fell due, it was the fault of the principal. If the consequence was a loss, it would be most unjust to cast the loss on the agent.

Applying what we have said to the instruction given by the learned judge of the Circuit Court to the jury, it is evident that he was in error. Without discussing in detail the several assignments of error, it is sufficient for the necessities of this case, to say it was a mistake to charge the jury as they were charged, that "in the absence of any consent of the owner of a bill of exchange, other than such as may be implied from the mere fact of sending 'for collection' a bill of exchange with a bill of lading pasted or attached to a bill of exchange, the bank so receiving the two papers for collection would not be authorized to separate the bill of lading from the bill of exchange and surrender it before the bill of exchange was paid." And again, there was error in the following portion

of the charge: "But if the Metropolitan Bank merely sent to the defendant bank the bills of exchange with the bills of lading attached for collection, with no other instructions, either expressed or implied from the past relations of the parties, they would not be so justified in surrendering (the bills of lading) on acceptance only." The Bank of Commerce can be held liable to the owners of the drafts for a breach of duty in surrendering the bills of lading on acceptance of the drafts only after special instructions to retain the bills until payment of the acceptances. The drafts were all time-drafts. One, it is true, was drawn at sight, but in Massachusetts such drafts are entitled to grace.

What we have said renders it unnecessary to notice the other assignments of error.

The judgment of the Circuit Court is reversed and the record is remitted, with directions to award a new trial.

Supreme Judicial Court of New Hampshire.

WHIPPLE v. GILES.

The contract of a married woman to pay for services of an attorney in prosecuting a libel for divorce against her husband is not binding.

A married woman cannot bind herself by a mere personal contract so that an action can be maintained against her after the coverture has ceased, nor will such contract be implied against her by reason of services rendered during her

coverture.

ASSUMPSIT.—The plaintiff was employed by the defendant, as an attorney-at-law, to procure for her a divorce on the alleged ground of extreme cruelty, and it was for services so rendered that this suit was brought. After the testimony had been taken, the proceedings for divorce were abandoned by her, and she directed the plaintiff to proceed no further, and the defendant thereafter lived with her husband as his wife until his death some year or two after. Since the death of the husband this suit was brought. If the plaintiff could maintain his action, he was to have judgment for the amount of his claim and taxable costs, otherwise a nonsuit was to be entered.

LADD, J.-It is settled that the common-law disability of a married woman to bind herself by contract, is not removed by statute in this state, except so far as regards her contracts respecting property which she holds in her own right. That was so decided in Bailey v. Pearson, 29 N. H. 77, upon the statute of 1846,

VOL. XXIV.-15

which was not materially different from Gen. Stats., ch. 164, sect. 13, and has been repeatedly reaffirmed since. This seems to me quite decisive of the present case. There is no just sense in which a contract by a married woman for the services of an attorney in procuring for her a divorce, can be said to be a contract respecting her separate property, even if she had such property, which does not here appear. I think the action cannot be maintained.

CUSHING, C. J.-" Assumpsit upon a mere personal contract made during coverture will not lie against a married woman, whether her husband be joined in the suit or not, unless such contract was made in respect to property held by the wife to her sole and separate use:" Carleton v. Haywood, 49 N. H. 314.

"Where a feme covert, holding property under the Act of 1846, signed a promissory note during the coverture, which did not appear to have been given on account of any contract growing out of the property-held, that it could not be recovered:" Bailey v. Pearson, 29 N. H. 77. Substantially the same doctrine is held in Eaton v. George, 40 N. H. 258; see, also, Brown v. Glines, 42 N. H. 160; Eaton v. George, 42 Id. 375; Ames v. Foster, Id. 381; Shannon v. Canney, 44 Id. 592; Leach v. Noyes, 45 Id. 364.

It appears from the cases cited, that, independently of statutory exceptions, it is generally true that a married woman cannot be bound by any contract expressly made by her during her coverture, or implied against her by reason of matters arising during the same time. I see nothing in the facts stated in this agreed case to take it out of the operation of the general rule in the case of Morris v. Palmer, 39 N. H. 123, where it was held that the services and expenses of an attorney employed by a married woman were necessaries; it was also held that the husband, and not the wife, was liable for them. It appears to me, therefore, that according to the agreement, there must be judgment of non

suit.

SMITH, J.-At common law the contract of a feme covert, with certain very limited exceptions, was void, and no action could be maintained thereon against her.

Under Gen. Stats., ch. 164, sect. 13, she has the same rights and remedies in relation to any property which she holds in her own right, and may sue and be sued in her own name upon any contract by her made or for any wrong by her done in respect to such property, as if she were unmarried. The statute does not, either in terms or by implication, apply to any contracts made by

a married woman, other than those regarding such property. This is well settled in all the cases that have come before the court since the passage of the Act of 1846, which was the first departure from the doctrine of the common law in the legislation of this state;-— see authorities cited in defendant's brief. It seems wholly unnecessary to refer to the cases upon this subject in our reports. A single case will suffice;-see Shannon v. Canney, 44 N. H. 592, where it was held that "a married woman is not bound by a promissory note given during coverture, although at the time of her marriage she had, by inheritance, both real and personal estate, unless it be shown that such estate was held to her sole and separate use, and that the promise was made in respect to that estate.' There can be no pretence that the contract made by this defendant with the plaintiff had any reference to or connection with any property held by her in her own right. It follows, therefore, that this action cannot be maintained.

ABSTRACTS OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF THE UNITED STATES,1
SUPREME JUDICIAL COURT OF NEW HAMPSHIRE.'

SUPREME COURT OF NEW JERSEY.3

SUPREME COURT OF OHIO.*

SUPREME COURT OF PENNSYLVANIA.5

ACTION.

Joinder of Parties-Not necessary where no Unity of Estate.-The plaintiffs were owners of the franchise of a ferry over the Delaware river from the town of C. to the opposite Pennsylvania shore, under a grant by the legislature of New Jersey. One D. was the owner of the landing on the Pennsylvania shore, and had a grant from the legislature of Pennsylvania of the exclusive right of ferriage from that shore. By arrangement between the owners of the two franchises, a ferry was run between the two landings for mutual benefit. The ferry was made valueless by the erection of the defendants' bridge over the river. In proceedings to recover compensation for the injury to the ferry, under defendants' charter, held, that the action was properly brought by the plaintiffs, without joining the owner of the Pennsylvania franchise.

From J. W. Wallace, Esq., Reporter; to appear in vol. 22 of his Reports. 2 From John M. Shirley, Esq., Reporter; to appear in 55 N. H. Reports 3 From G. D. W. Vroom, Esq.; to appear in vol. 9 of his Reports.

From E. L. De Witt, Esq., Reporter; to appear in 25 Ohio State Reports. 5 From P. Frazer Smith, Esq., Reporter; to appear in 77 Pa. State Reports.