pelled; unless insolvency or a state approaching it can be shown, or that the party was a near relation, or the absence of the party having the right to the money, or something which repels the presumption that a man is always ready to enjoy what is his own."

ILLUSTRATIONS. (A.)

1. A. gave B. a bond for the payment of $300 in 1817. An action was brought on it in 1845. The presumption that it was paid is rebutted by proof that in 1837 A., in the presence of a witness, acknowledged that it was still due. (10)

2. C. brought suit against D. on a bond payable over twenty years before action. D. during this time, and within twenty years, admitted that it was due, but said he had a defense to it. There is no presumption that it was paid. (11)

3. F. sued G. on a bond more than twenty years after it was due. But during this time G. had twice stated that he wonld not pay it, as F. had obtained more he from their father. This rebuts the presumption of payment. (12)

4. C. gave a mortgage on his land to H. in 1854. In 1874 H. died, leaving the mortgage to his daughter M. In 1879 M. asked H. for an acknowledgment that the mortgage, on which nothing had ever been paid, was a valid security, to which H. agreed, making a memorandum to this effect on the mortgage. M. subsequently assigned the mortgage to E., who sent it to H. to get an admission of the genuineness of his signature. H. kept the mortgage, and afterward stated that it was lost. These facts rebutted the presumption of payment.(13)

In case 1 it was said: "The legal presumption of payment which the law allows at the expiration of twenty years after the debt becomes due is an act of tenderness toward the debtor which is sustained by the absence of evidence, and like other presumptions, must yield and give way before any circumstances and facts on which the mind can rest with satisfaction by which it is rebutted or repelled. It has not the power or effect of a positive statutory enactment of limitation or oblivion which extinguishes the original demand, and requires a new promise to pay or its equivalent. The mind must be free to admit the presumption, and if the exhibition of facts or circumstances interdict and forbid the conclusions, the protection is removed. *** There could be no doubt whatever that an acknowledgment of the debt before the efflux of twenty years excluded the legal presumption of payment. The question raised and argued was as to the competency of an acknowledgment after the expiration of twenty years from the time the bond became due. The court did not err in their instruction to the jury. The burden of proof lies on the plaintiff; and if he satisfies the jury by proper evidence that the defendant, after the expiration of twenty years, admitted the existence of the debt, it would be converting legal presumption into credulity to instruct a jury that they were authorized to presume payment against positive evidence. The legal presumption of payment would be changed into a legal and peremptory bar, contrary to all authority."

In case 2 it was said: "The suit was not brought within twenty years from the date of the bond and the

(10) Eby v. Eby, 5 Penn. St. 435 (1846); Bissell v. Jandon, 16 Ohio St. 498 (1866). And a demand proved to have been made on the debtor by the creditor rebuts the presumption. Shelds v. Pringle, 2 Bibb, 387 (1811); Wanmaker v. Van Buskirk, 1 Saxt. Ch. (N. J.) 685.

(11) Stout v. Levan, 3 Penn. St. 236 (1846).

(12) Reed v. Reed, 46 Penn. St. 239 (1863).

(13) Murphy v. Coates, 33 N. J. (Eq.) 424 (1881).

debt payable.

Twenty years' delay unaccounted for pays the debt. ** * * This payment is by operation of law. After that time, if not accounted for, the debt is presumed to be paid. This presumption as a bar is conclusive of its payment unless it is rebutted by countervailing proof. This presumption may be overcome by proofs of various kinds of facts and circumstances. Payment of money in part discharge of the present existing debt; an acknowledgment that the debt is still unpaid and due will rebut this presumption of payment. It is not reasonable to presume a debt paid which the debtor says was not paid."

"It would be absurd," said the court in case 3, "for the law to presume in the case of such admission that it had been paid. All presumptions are in accordance with what is usual, not against it. True the defendant added to his admissions the expression of a purpose not to pay, giving as a reason not that he had paid, but that the plaintiff had obtained more than he had under the will of their common father. This might be important if it was necessary to show that a new obligation had been assumed, but it only strengthens, if possible, the evidence that the debt remained unpaid." "But the presumption of payment," it was shown in case 4, "which arises in regard to mortgages from lapse of time, without payment of interest or demand made, is only a presumption, and it is one which may be rebutted. In this case C. has acknowledged both verbally and in writing that neither principal nor interest has been paid."

But the fact that the debtor had during the twenty years said to a stranger that he would not pay the debt (a legacy) because the creditor was rich enough without it was held insufficient. "When a person," said the court, "in conversation with a stranger respecting the claim of another, says he will not pay it, there is not the same reason for inferring recognition that exists when the creditor requests and its debtor refuses payment. In the latter case not to deny is to admit. Besides the debt is claimed. But it does not concern the stranger whether the claim is existing or has been paid. He has no right to ask payment." Bentley's Appeal, 99 Penn. St. 500 (1882).

(B.)

T., H. and S. signed a bond payable in 1860. The presumption in 1881 is that it is paid. But it appears that in 1868 T. became bankrupt, and his assignee paid T.'s share of the obligation. This rebuts the presumption which had arisen in favor of H. and S. (14)

(C.)

1. A judgment was entered against L. in the year 1818 for over one thousand dollars. The presumption in 1846 is that it is paid. It is shown that many judgments and executions were issued against him after that, and that from 1820 to the present time he was insolvent and unable to pay his debts. This rebuts the presumption of payment.(15)

2. While A. and B. lived in Virginia A. gave B. a bond payable in 1811. In 1812 A. removed to North Carolina to Mississippi, where he lived till he died in

(14) Belo v. Spach, 85 N. C. 122 (1881); Hamlin v. Hamlin, 3 Jones (Eq.) 191. So as to the payment of interest, Shields v. Pringle, 2 Bibb, 387 (1811). But the evidence of a joint obligor of a bond that he had not paid it is not admissible to repel the presumption arising from lapse of time. Rowland v. Windley, 86 N. C. 36 (1882).

(15) Farmers' Bank v. Leonard, 4 Harr. (Dec.) 537 (1848); McClellan v. Crofton, 6 Me. 334 (1830); Fladong v. Winter, 19 Ves 197 (1812); Wynne v. Waring, 1 Term. Rep. 270; Kilpatrick v Brashaer, 10 Heisk. 372 (1873); Hopkirk, v. Page, 2 Brock. 20 (1822).

1819. He was during this time in most destitute circumstances except for about eighteen months at one time, when he was in possession and appeared to be the owner of considerable property. In an action brought on the bond in 1837 the presumption of payment is rebutted by his insolvency. And the fact of insolvency is not affected by the interval of solvency of which the creditor could not have known.(16)

3. The presumption of the payment of a bond being rebutted by proof of the insolvency of the obligor during all the time, it appears that he had a reversionary interest in certain shares which did not vest in him until a short time before action brought, and of which the creditor was ignorant. This does not affect the rebuttal.(17)

4. The issuance and return of an execution nulla bona is a circumstance rebutting the presumption of the payment of a judgment from lapse of time. (18)

In case 1 it was said: "It is a well established rule of law that where a debt due by specialty has not been demanded by the plaintiff or acknowledged or recognized by the defendant for twenty years, and nothing is shown to account for the delay, the debt shall be presumed to have been fully paid and satisfied. This rule applies not only to bonds, but to mortgages, judgments, recognizances, decrees, and other debts of record. If the presumption is not repelled by sufficient legal evidence, it becomes absolute and conclusive, and the jury are bound to render a verdict for the defendant, although they may individually believe that the debt has not been paid. The rule is founded on the common experience of the conduct of men in relation to the transaction of business; and was intended for the security and repose of society, by discountenancing suits for stale demands and discouraging the laches and negligence of parties in delaying to prosecute their claims for an unreasonable length of time when they had the means and opportunity of enforcing them. The rule also was intended for the protection of the debtor whose receipts or vouchers may perhaps be lost, or witnesses be dead or removed; or the true state of the transactions be otherwise obscured by lapse of time. It is better for the peace and repose of society and the ends of justice that the presumption arising from lapse of time should be adhered to, and not be easily rebutted; although in many cases it may be contrary to the actual truth of the case. Although this rule is well established, it is equally well settled that in all cases the presumption of payment arising from lapse of time may be repelled by countervailing evidence which satisfies the minds of a jury that the debt is still due and unpaid. The evidence for this purpose must consist, 1st, of an unconditional and unqualified acknowledgment or admission, either express or implied, on the part of the defendant within twenty years of the justness of the claim, and that it is still due; or 2d, a payment on account of either the principal or interest, either of which is an implied recognition of the debt; or 3d, the situation, condition or circumstances of the parties, such as the absence of the plaintiff or the defendant in a foreign country, or the insolvency or embarrassment of the plaintiff or the defendant. There is no evidence either of the first or second description. But the plaint iffs contend that there is sufficient and competent evidence of the third description to rebut the presumption of payment in the present case. The question is presented whether the poverty or insolvency of the defendant or a state approaching or manifestly tending to insolvency is admissible in evidence. The court are of opinion that it is. The indigent circum.

(16) McKinder v. Littlejohn, 4 Ired. (L.) 198 (1843). (17) McKinder v. Littlejohn, 1 Ired. (L.) 66 (1840). (18) Black v. Carpenter, 3 Baxt. 350 (1874).

stances of a creditor who holds a bond and had the opportunity to collect it from the debtor but makes no demand of payment, either of the principal or inter est, for a period of twenty, years afford strong presumptive evidence of payment or satisfaction. So on the other hand and for the same reason the indigent circumstances of a debtor, his hopeless insolvency and inability to pay his debts, are properly admissible in evidence for the purpose of repelling presumption of payment or satisfaction arising from lapse of time. Therefore if the jury are satisfied that the defendant was in such a state of indigence or insolvency since the year 1820, that he was unable to pay this judgment and other debts which had priority or preference, the presumption of payment is repelled and the verdict ought to be for the plaintiffs. But if the jury are satisfied from the evidence in this case that the defendant, although in indigent or embarrassed circumstances since the year 1820, had during that period either from visible property or from other resources from which payment might have been coerced by the use of legal process either against his property or his person, the means of paying this judgment and other judgments having a priority of lien upon any land or real property which he may have had, and also all other debts, which by the use of legal diligence could have been made to have a priority over this claim; or in other words, if it appears to the satisfaction of the jury that this judgment might have been collected by the use of legal process at any time since the year 1830, the presumptive bar from lapse of time is not removed, and in such case the verdict ought to be for the defendant." The jury found for the plaintiff.

In case 2 it was said: "The distinction is material as preventing the possession of property by the debtor for but a short period from counteracting the effect of insolvency, as a circumstance repelling the presumption of payment. For if the debtor, living more than a thousand miles from the creditor, and in a situation between which and the place of the creditor's residence there was but little communication, should have had in possession property of value to pay the debt but for a very short time, so that the jury should think the creditor did not know of it and could not get payment out of that property, it might be regarded as being substantially a continued insolvency; especially where, as here, the debtor seems barely to have had possession of property without its appearing how he got it and whether he had paid for it."

In case 3 it was said: "The presumption raised by a forbearance for twenty years may be repelled by evidence that the debtor had not the means or opportunity of paying. * * * The circumstance relied on 18 not sufficient to withdraw the present case from the operation of this doctrine. * * * If it could be brought home to the creditor that he knew of this interest in remainder, an inference of negligence in forbearing for so many years from any effort to subject it to his demand might be raised against him, but as the intestate himself forbore wholly, notwithstanding his necessities, from making any use of this interest, it might be that he was ignorant thereof, and still more probable that these creditors knew not of it."

In another case it was said: "The only true rule, in such a case, is to require such a state of insolvency to be shown to have existed during the entire ten) years after the maturity of the debt, as will prove that the debtor did not pay because he could not, and nothing short of this will the law permit to destroy its own inference arising from the lapse of time. Besides this, in a case like the present the presumption of payment, unlike that which is raised of the death of a party from his being continually absent and unheard of for seven years, is by law referred to a particular period

of time, and has relation to the day on which the debt became due."(19)

(D.)

1. M. sues O. on a sealed note due in 1840. The suit is brought in 1861. The presumption is that the note is paid. It is proved that between 1840 and 1860, O. was insane. This rebuts the presumption.(20).

(E.)

1. A. mortgaged his land to B. A. was a son-in-law of B. There is no presumption, even after twenty years with no payment or demand of interest, that this mortgage has been paid.(21)

2. B. mortgaged his land to C. After a lapse of time in which the presumption of payment would arise, the rule is different where it appears that B. had died many years before, leaving a wife and children in poor circumstances.(22)

3. A father left his son certain land having a doubtful title, with the provision that should it be recovered from him at law, B. another son, should pay him a certain sum from the estate. The land was taken from A. by legal process in 1742. In 1788, A. sued B.'s executor for the sum. The presumption was that B. had paid A. It appeared however that B. "had amused A. until his death in 1785, with promises of providing for him by his will," which he never did. The presumption of payment is rebutted. (23)

In cases 1 and 2 it was said: "The very situation of the parties is of itself sufficient to rebut the presumption. The mortgagor was a near relative; he had married the daughter of the mortgagee and had issue. The mortgagor died many years age, leaving his wife and children in possession. They were not in a situation to pay either principal or interest. To have exacted the payment might have brought distress upon those who depended upon this property for a support, and would have been harsh to say the least of it. To suffer the mortgage to remain without compelling pay. ment was a reasonable indulgence, and ought not to be set up now for the purpose of defeating the claim. One ground for a presumption of payment growing out of a lapse of time, is that a man is always ready to enjoy what is his own. Whatever will repel this, will take away the presumption of payment, and for this purpose it has been held sufficient that the party was insolvent or a near relation."

In case 3, Marshall, who was then at the bar, argued as follows: "I admit that length of time which induces a presumption that a claim has been satisfied will create an equitable bar. But this presumption may be repelled by testimony accounting for the delay, and in this case there is a sufficient reason assigned and proved for the appellants not asserting his right at an earlier day. It appears that the testator of the appellee had been long married without having children; that he acknowledged his brother's lenity in not coercing satisfaction of his claim, and promised to make him an ample provision at his death." The court agreed with this view of the case saying: "The judge who pronounced the decree of reversal in this case seems to have considered no other question, but the presumption against the demand on account of its antiquity. It is undoubtedly true in general that a right for a length of time unaffected, is subject to a presumption of its having been satisfied sufficiently stroug to defeat it. But it is equally true that this (19) Grant v. Burgwyn, 84 N. C. 560 (1881); Powell v. Brinkley, Busb. (N. C.) 154 (1852).

(0) McLellan v. Crofton, 6 Me. 334 (1830).

(21) Wanmaker v. Van Buskirk, 1 Saxt. Ch. (N. J.) 685 (1832).

(22) Id.

(23) Eustice v. Gaskins, 1 Wash (Va.) 188 (1793).

1. A bond, made by B. to A. in 1784, is sued on in 1815. The action is brought in England where A. has always lived. But from 1792 to 1815 B. has resided in America. The presumption of payment is rebutted. (24)

2. Rent of a house became due on December 25, 1794; but was not sued for till 1816. One of the parties resided in England, the other in America. The breaking out of the war between the countries and the distance between the parties, prevented the presumption of payment from arising. (25)

3. During the period the time was running, the parties lived in the south; the war was flagrant and the courts were closed. This rebuts the presumption.(26)

"The principle upon which the presumption of payment arises from the lapse of time is a reasonable principle and may be rebutted by any facts which destroy the reason of the rule. That no presumption could arise during a state of war, in which the plaintiff was an alien enemy, is too clear to admit of doubt." (27)

(G.)

1. A bond payable on demand was executed in 1843 A suit was brought on it in 1867. The presumption was that it had been paid. It appeared that though payable on demand it was not the intention of either party that it should be paid till a future time. The presumption is rebutted. (28)

2. A surety to a note under seal against which by lapse of time a presumption of payment has arisen is asked during this time to sell his land to another. He replies that he cannot, as the creditor if he does will push him on the note, which he has promised not to do during his life-time. This rebuts the presumption of payment. (29)

In case 1 it was said: "Do sufficient circumstances exist in this case to rebut the presumption of payment? I think so. The bond, it is true, was payable on demand, but the accompanying circumstances show conclusively that neither the obligors nor the obligee expected this bond to be paid promptly. It is true it was drawn payable on demand, but the accompanying circumstances show conclusively that neither the obligors nor the obligee expected this bond to be paid promptly. It is true a legal cause of action arose the day the bond was executed; but it would have been a gross breach of good faith if the obligor had sued on it promptly. * *The bond in this case was given by the members of a mercantile firm to a brother of one of the obligors. It was given for money advanced to them to be used in their business. And the obligee borrowed it for the express purpose of letting them have the use of it in their business. Their credit was not sufficient to enable them to borrow this money, and the obligee borrowed it on his own, simply for

*

(24) Newman v. Newman, 1 Stark. 101 (1815); Helm v. Jones, 3 Dunn, 88 (1835).

(25) Bailey v. Jackson, 16 Johns 210; 8 Am. Dec. 309 (1819); Shields v. Pringle, 2 Bibb, 387 (1811).

(26) Hopkirk v. Page, 2 Brock. 20 (1822); Gwyn v. Porter, 5 Heisk. 254 (1871); Jackson v. Pierce, 10 Johns. 415 (1813); Montgomery v. Bruere, 4 N. J. (L.) 266 (1818); Hale v. Pack, 10 W. Va. 145 (1877); Thomas v. Hunnicutt, 54 Ga. 337 (1875); Kilpatrick v. Brashaer, 10 Heisk. 372 (1873); Cannon v. Mathis, id. 575 (1873).

(27) Marshall, C. J., in Dunlop v. Ball, 2 Cranch, 184 (1804) . (28) Hale v. Pack, 10 W. Va. 145 (1877). (29) Fisher v. Phillips, 4 Baxt. 243 (1874).

their accommodation. The whole object of this arrangement would have been defeated by the obligee demanding the payment of this bond promptly.* * * Presumption of payment under such circumstances would be as unreasonable as the presumption that a bond was paid before it was due. Abating therefore such reasonable time after the bond was given before according to the understanding of the parties, it was to be paid, * * * and the time during which presumption of payment could arise in this case would be much less than twenty years."

A medical college is not embraced within the terms "literary or scientific college or university."

The act of 1848, chapter 319, and the acts amendatory thereof and supplementary thereto do not authorize the formation of medical colleges.

The act of 1882, chapter 367, has reference only to scientific and literary colleges organized under the act of 1848, in whose organization there has been some imperfection, and does not apply to "medical colleges," as no reference is made to them in the act of 1848. F. J. Fithian, for appellants. Edward C. Ripley, for respondents.

APPEAL from judgment of General Term affirming

judgment of Special Term entered upon an order sustaining demurrer to answer.

The action was in the nature of a quo warranto brought under the Code of Civil Procedure, section 1948, subdivision 3, charging the "United States Medical College" of the City of New York with exercising franchises and privileges without authority of law.

EARL, J. The question to be determined in this case is whether the United States Medical College" of the City of New York was legally incorporated at the time of the trial of this action. The defendants claim that it was legally incorporated under the act, chapter 319 of the Laws of 1848, and the several acts amending the same and supplementary thereto. That act was entitled "An act for the incorporation of benevolent, charitable, scientific and missionary societies," and the first section, as originally enacted, provided that "any five or more persons of full age, citizens of the United States, a majority of whom shall be citizens of this State, who shall desire to associate themselves for benevolent, charitable, scientific or missionary purposes, may make, sign and acknowledge a certificate" and become incorporated.

That act was amended by chapter 51 of the Laws of 1870, which provided that it should "be deemed to au(30) Bowie v. Poor School Soc., 75 W. Va. 300 (1881): For other cases in which the circumstances of the case were held to rebut the presumption of payment from lapse of time, see Ross v. Ellsworth, 49 Me. 416 (1860); Hendrick v. Bannister, 12 La. Ann. 373 (1857); Wemet v. Missisquoi Lime Co., 46 Vt. 458 (1874); Tomlin v. How, 1 Gilmer (Va.), 8 (1820).

thorize the incorporation of any society for the purpose of establishing and maintaining any educational institution or chapel, or place of Christian worship, of any parsonage, rectory or official residence of any bishop, pastor or minister of any Christian church or association; " and section 3 of that act provided that any university or college incorporated under the said act, or under this act, may take and hold by gift, grant, devise or bequest property or endowment not exceeding in value or amount one million of dollars."' Section 1 of the act of 1848 was again amended by chapter 649 of the Laws of 1872 so as to read as follows: "Any five or more persons of full age, a majority of whom shall be citizens of and residents within the State who shall desire to associate themselves together for benevolent, charitable, literary, scientific, missionary or mission or other Sunday school purposes, or for the purpose of mutual improvement in religious knowledge or the furtherance of religious opinion, or for any two or more of such objects combined, may make, sign and acknowledge" a certificate and become incorporated.

We are of opinion that these acts did not authorize the formation of a medical college. According to the ordinary use of language a medical college would not be described as a scientific or literary institution. It would not be generally classified as such, and we do not think it was the purpose of the Legislature to authorize any five citizens at any time and place, and without any restriction to organize an institution which could in its own way, and upon such loose and liberal terms as it chose to prescribe, issue diplomas to its graduates and confer upon them the degree of doctor of medicine. Medical colleges had before been organized by special acts, or under the general act of April 5, 1813, which was not repealed by the act of 1848. Subsequently by the act, chapter 184 of the Laws of 1853, the Legislature dealt with the subject of medical colleges. Section 6 of that act provides that any citizens, not less than ten in number, who may desire to found and endow a medical or surgical college or school within this State, may make, sign and acknowledge a certificate and become a corporation, as therein provided. They are required to have an endowment of $50,000, and every college organized under that act has power to grant and confer upon its graduates the degree of doctor of medicine upon the recommendation of the board of professors of the college and of at least three curators of the medical profession appointed by the trustees. "But no person shall receive a diploma conferring such degree unless he be of good moral character and of the age of twenty-one years, and shall have received a good English education, and shall have pursued the study of medicine and the sciences connected therewith, for at least three years after the age of sixteen years, and have received instruction from some physician or surgeon fully qualified to practice his profession, until he is qualified to enter a medical college, and (except in cases hereafter provided) shall also after that age have attended two complete courses of lectures delivered in some incorporated medical college."

It cannot be supposed that the Legislature intended to authorize the creation and operation of medical colleges under the act of 1848, without any checks or restrictions, while it requires that such colleges, organized under the act of 1853, should comply with the requirements, perform the duties and be subject to the restrictions carefully specified in that act. We think that before the passage of the act of 1853 the only way for the incorporation of a medical college was either by special charter granted by the Legislature or under the act of 1812 above referred to. After the act of 1853 the only general act for the formation of medical colleges was that act, and no medical college could there

after be organized in this State except in the way prescribed in that act or by special charter granted by the Legislature.

But it is claimed on the part of the defendants that if their college was originally illegally incorporated the corporation was legalized by the act, chapter 367 of the Laws of 1882. That act is entitled "An act to restrict the formation of corporations under chapter 319 of the Laws of 1848, entitled 'An act to provide for the incorporation of benevolent, charitable, scientific and missionary societies,' and the acts amendatory thereof, and to legalize the incorporation of certain societies organized thereunder and to regulate the same.'

If the act was intended to legalize the incorporation of this college its title is very deceptive and misleading, because as has already been shown, it had no right to organize under the act of 1848, and was not thereafter organized thereunder, or in fact in any way. Section 1 of the act of 1882 provides that "hereafter no literary or scientific college or university shall be incorporated under the provisions of chapter 319 of the Laws of 1848 without the approval of the regents of the university."

As we have already stated, the terms "literary or scientific college or university" do not embrace a medical college. Section 2 provides that "all scientific and all literary colleges and universities organized under said acts which shall have reported to the said regents within two years last past are hereby declared legally incorporated." The United States Medical College is not a scientific or literary college, aud hence again is not embraced within this language. Reading the language of this act as we find it, it has reference only to scientific and literary colleges, organized and authorized to be organized under the act of 1848, in whose organization there has been some imperfection, and it was such corporations which are declared to be legally incorporated. We have no means of knowing from any thing contained in this act or from any thing of which we can take judicial notice that it was the intention of the Legislature, by the language used in the act, to legalize the incorporation of this college. If it was intended to do so, the language used by the framers of the act seems to have been intentionally deceptive. The words "medical college" are not found in the act of 1848, or in any of its amendments; and if it had been intended to deal with a subject of so much importance to the public health and the general welfare, it would probably have been mentioned in unmistakable language.

We are therefore of the opinion that the judgment below is right, and should be affirmed with costs.

All concur.

MARRIAGE-COMMUNITY PROPERTY-WIFE SU

ING HUSBAND.

TEXAS SUPREME COURT, APRIL 29, 1884.

RYAN V. BATES.

Where A., a married woman, sued her husband for debt, and also sued out a writ of attachment, and her husband's creditors intervened, claiming that A.'s attachment was collusive, that she and defendant were wife and husband, and that their debts were community debts, and the property on which the attachment was levied was community, and the court charged the jury as a matter of law, without any qualification whatever, that because A. was the wife of defendant she could not lawfully have, in her favor, a writ of attachment issued against the community property, and thereby acquire rights superior to other creditors, who had just debts against the community, held, error.

Appellant brought suit against her husband, A. P. Ryan, upon two notes made by defendant and payable to appellant, aud made affidavit for, and obtained a writ of attachment on the ground that said defendant was about to dispose of his property for the purpose of defrauding his creditors. Defendant allowed judgment to go by default.

Appellee having also caused writs of attachment to be levied upon the same goods that appellant's attachment was levied upon, intervened in this cause, claiming that appellant's lien was subordinate to theirs.

On the trial it was shown that appellant's debt was her separate property.

The court charged the jury, that appellant "being at the date of the institution of this suit the wife of defendant, * * *could not legally cause to be issued and maintained a writ of attachment against the community property of herself and husband, so as thereby to acquire paramount rights over creditors holding debts, for the payment of which community property was liable." The charge is assigned as error, and is the only one relied upon for reversal.

WEST, J. We are of the opinion that the court erred in instructing the jury without any qualification whatever, as matter of law, that the appellant, who was a creditor of appellee Ryan, because she was his wife when the suit was filed, could not lawfully have in her favor a writ of attachment issued against the community property, and thereby acquire rights superior to other creditors who had just debts against the community.

Under our system of marital law, as regulated by the Constitution and statutes, and as expounded from time to time by this court, the wife can, in a proper case, for the protection of her separate rights, maintain a suit in her own name against her husband.

The case of Price v. Cole, 35 Tex. 471, was a suit by a wife against her husband to foreclose a lien created by a mortgage executed by the husband to the wife upon community property, to secure a separate debt due by him to his wife. A creditor intervened, and the court refused, at his instance, to foreclose the lien supposed to exist by reason of the wife's note and mortgage. It was, in fact, treated as void as against creditors of the community.

Upon argument, and an examination of the question, the Supreme Court, as then organized, in 1871-2, reversed the judgment of the court below, and rendered a judgment in favor of the wife on the note executed to her by her husband, and entered a decree foreclosing the lien, and directing the land to be sold for payment of the wife's debt.

In Hall v. Hall, 52 Tex. 298-299, this court had occasion to pass in review the opinion delivered in Price v. Cole, on this point. The case in which it was considered was one of some interest and importance, both on account of the difficult legal question involved, and also by reason of the nature and character of the suit. The questions too were carefully and fully presented to the court by counsel of learning, experience and ability. The case too itself bears evidence of being fully considered by the court. It was there in effect held, and we believe correctly held in substance, that an ac