Alexander v. McMurry,. A devise of lands to the services were rendered, and (2) her husband was erroneous. Decree reversed, and now it is ordered that the petition and supplemental petition be dismissed with costs, and that the costs of this appeal be paid by the appellees. SARAH E. BOVARD v. JACOB D. KETTERING. of married women) only confers the right to refain The Act of 9th April, 1872, is an extension of the Act of 11th April, 1848. It secures to a married woman her separate earnings, and, impliedly, authorizes her to engage in business. By taking the benefit of it she assumes the rights and is subject to the liabilities of a feme sole. It is not necessary to join the husband in a suit against a married woman doing business under the Act of 1872. Error to the Court of Common Pleas of Westmoreland county. The plaintiff in error, defendant below, on petition duly filed in the Court of Common Pleas of Westmoreland county, was allowed to take the benefit of the Act of 3d April, 1872, giving to married women their separate earnings. Subsequently she obtained a license to keep a hotel. Her husband was living with her. The defendant in error was employed by Mrs. Bovard as clerk, bartender, etc., in the house. For an unpaid balance of wages due him suit was brought against Mrs. Bovard without joining her husband, and there was a verdict in his favor and the question of law reserved whether there could be a recovery, the defendant being a married woman at the time "The first legislation on the subject in Pennsylvania was the Act of 22d February, 1718, which provides that mariners or others going to sea, leaving their wives at home at shopkeeping or work for a livelihood, shall be declared to be feme sole traders, and so the law stood for one hundeed and thirty-seven years, when the Act of 4th May, 1855, was passed. This is an enlarging act, declaring that drunkenness or desertion of the husband sufficient to give the wife the privilege of a feme sole trader, and it was held in Black v. Tricker, 59 Pa. St., 13, that in such case she can claim this privilege without a formal decree of court, notwithstanding the provisions of the 4th section of the Act. Then follows the Act of 3d April, 1872, which goes further and makes a married woman a feme sole trader as to her separate earnings, without regard to the absence at sea, habits or conduct of the busband, and removes from the control of her husband her separate earnings. These acts being progressive should be construed together. In Cleaver v. Scheetz, 20 P. F. Smith, 498, Justice AGNEW, in delivering the opinion of the court, compares at length the Acts of 1718 and 1855, under both of which he holds that there must be a business carried on out of which the rights of creditors must spring. The Act of 1872, as we have seen, makes the separate earnings of the wife, arising out of her business, her own, which is in strict conformity with the view taken by the court in construing the former acts. We cannot believe that the Legislature in this act intended that a married woman might engage in business (as contemplated in the Acts of 1718 and 1855) and not be held responsible for debts contracted in the line of such business. Could it be possible that the meaning of the law in this case is, that the defendant would take out a license and keep a hotel in her own name, and employ servants and lay in supplies for her bar and table, and not be liable for debts contracted therefor? This might be a profitable business for her but a very unjust one to her creditors, and especially when they depended upon a decree of court, which she herself procured, and under which she held herself out to the world as a feme sole trader. If our reasoning be correct, then the position that her husband should have been joined must pass with it. That a feme sole trader may be sued without naming her husband is ruled in Burke v. Winkle, 2 S. & R., 189." This writ was then taken. retain her earnings from whatever source derived, as against her husband and his creditors. Any married woman in the State, with or without cause, may avail herself of the benefit of the Act of 1872, while to entitle her to become a feme sole trader, she must bring herself within either the Act of 1718 or 1855. The defendant below is a married woman, and had availed herself of the benefit of the Act 1872. Her petition had been presented in the Common Pleas and properly recorded. Subsequently she obtained a license to keep an inn or tavern in the borough of Greensburg, and For plaintiff in error, Messrs. A. M. Sloan and this suit was brought against her by her barL. W. Doty. Contra, William M. Given, Esq. Opinion by PAXSON, J. Filed November 20, 1882. It was said in Jacobs v. Featherstone, 6 W. & S., 346, that: "There is no feme sole trading by a married woman with us, but such as is licensed and regulated by the statute of 1718." Since that case was decided we have the later Act of 4th May, 1855, P. L., 430, which provides that: "Whensoever any husband from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader under the Act of 22d February, 1718," etc. It was not contended that the defendant below was within the protection of either of the above Acts of Assembly. But the learned judge of the Common Pleas was of opinion and so ruled, upon the questions reserved, that the Act of 9th April, 1872, P. L., 35, makes a married woman who complies with its terms, a feme sole trader so far as her separate earnings are concerned. We do not so understand it. The Act of 1872 was not intended for any such purpose. The Act of 1848 had secured to married women their separate estates, but their earnings still belonged to their husbands: Speakman's Appeal, 21 P. F. Smith, 25. To remedy this supposed defect in the law the Act of 1872 provided that: "The separate earnings of any married woman of the State of Pennsylvania, whether said earnings shall be as wages for labor, salary, property, business or otherwise, shall accrue to and inure to the separate benefit and use of said married woman, and be under the control of such married woman, independently of her husband, and so as not to be subject to any legal claim of such husband, or to the claims of any creditor or creditors of such husband, the same as if such married woman were a feme sole." It will thus be seen that this act confers but a single right upon a married woman, viz., the right to keeper for his wages. There was no dispute as to the services having been performed, and little as to their value. The defendant set up her coverture in bar of the action, and the learned court reserved the question of her liability. Subsequently judgment was entered for the plaintiff upon the reserved questions. We think the learned judge was not strictly accurate in holding that the defendant was a feme sole trader, so far as her separate earnings are concerned. She was a feme covert with the right to enjoy her earnings as a feme sole. Is a married woman who has applied for and received the benefits of the Act of 1872, and who has subsequently engaged in business under the sanction and protection of said act, liable to be sued upon her contracts made in the prosecution of such business? It is conceded she is not liable upon her contracts generally. But there is a line of cases since the Act of 1848 which hold that, so far as it becomes necessary to the use and enjoyment of her separate estate, a married woman may both sue and be sued: Sheidle v. Weishlee, 4 Harris, 134; Murray v. Keyes, 11 Casey, 384; Lippincott v. Hopkins, 7 P. F. Smith, 328. Were it otherwise, a married woman, no matter how ample her estate, could not put a new roof on her house when necessary, nor rebuild it if destroyed. If she loaned her money out she could not recover it back. On the other hand, the mechanic, who repaired her roof or rebuilt her house, would have had no remedy to recover his money. The Act of 1872 is but an extension of the Act of 1848. Is there any reason why the above stated rule should not apply? The act secures to her the earnings of her business. This is an implied authority to engage in business. She is to enjoy her earnings "the same as a feme sole." If she assumes the rights of a feme sole she is also subject to the duties and liabilities of a feme sole. The Act of 1872 was not intended to license a class of female pirates who should engage in business without responsibility, and make reprisals upon the grocer, the baker, the butcher, the mechanics and other persons with whom she may deal in the transaction of her business. To the extent that the defendant obtained the services and property of others in keeping her hotel, she is liable to the parties in a suit at law precisely as if she were a feme sole. ness. Objection was made that her husband was not joined in the suit. Why should he be? It is not pretended that he is responsible for the debts contracted by the defendant in her busiThe rule of the common law undoubtedly is that a married woman can neither sue nor be | sued without the joinder of her husband. The reason of the rule is the unity of the parties. The legal existence of the wife is merged in that of her husband. The Aets of 1848 and 1872 have emancipated married women to some extent from the shackles of the common law. For certain purposes a married woman now stands upon the same plane as a feme sole. To this extent the legislation referred to has destroyed that unity of person which existed at the common law, and which required the joinder of her husband in a suit by or against her. Why should the rule be applied here? Cessante ratione legis, cessat ipsa lex. It has been expressly decided that in a suit against a feme sole trader her husband need not be joined: Burke v. Winkle, 2 S. & R., 189. It would have been more orderly had there been a replication to the plea of coverture. But as we have not been furnished with the plea we decline to consider this question. We are of opinion the plaintiff below was entitled to judgment upon the points reserved. Judgment affirmed. HACKE & HUGUS, Appellants, v. J. G. LAUER & BRO., Appellees. It is settled law that nuisances to rights of way are remediable by injunction. The right must be clear to warrant a decree and injunction to compel the keeping open of a way, and if it be doutful, must be first established in an action at law. Where a right of way is granted by deed, the owner has a right to its enforcement in the mode and form stipu lated by the deed, and the fact that such enjoyment is prevented is sufficient ground for interference by injunction. When the covenant is of such a nature that it can, consistently with the principles of equity, be specifically enforced, the court will not, unless under very exceptional circumstances, take into consideration the comparative injury to the parties from granting or withholding the injunction. The appellees were lessees of a building owned by one Brown, situated on Market street, in the city of Pittsburgh, distant forty feet from Fifth avenue and running back eastwardly eighty feet. Their lease was for ten years from April 1, 1869. Hacke, one of the appellants, owned the ground and buildings lying between the Brown property and Fifth avenue, subject to the free and common use of an alley four feet wide and ten feet high at the rear, running from the avenue to Brown's lot. Hacke having subsequently acquired other property on Fifth avenue, in rear of his lots, desired to erect a building fronting on Fifth avenue and closing the alley. To do this it became necessary to tear down the party wall between the lots of plaiutiffs and defendants and erect a new one for the new building. An agreement dated 18th April, 1872, was entered into between the plaintiffs and defendants, whereby said Lauer & Bro., to the extent of their right and interest, gave their free consent to Hacke to tear down the existing party wall without delay, and to erect the new party wall proposed by him. Hacke agreed, at his own expense, to shore up the floors of the house in the tenancy and possession of Lauer & Bro., etc., and Lauer & Bro., to the extent of their interest in the premises, released unto Hacke all their right, title and interest to the alley in the rear of Hacke's lot, and agreed to allow Hacke to close up the same during the continuance of their lease,-Hacke granting to them the right to bring water through his cellar from Fifth avenue, and to drain water into his waste pipe. Hacke was to look exclusively to Brown, the owner of the Lauer house and lot, for contribution to the cost of the party wall. The lease from Brown to Lauers contained the following provision, viz: "It is hereby further agreed between the parties hereto, that should the said parties of the second part continue to occupy the said tenement after the expiration of the term above limited, by consent of the said party of the first part, without entering into any further or other agreement then the amount of rent, times of payment and other covenants and agreements hereinbefore mutually agreed upon, shall be continued as applicable to such further terms as the said party may continue to occupy the relation of landlord and tenant." On the 19th day of April, 1872, being the day after the written agreement between Lauers and Hacke was executed, the Lauers, by a writing endorsed on the original, procured an ex Appeal from the decree of the Court of Com- tension of their lease. mon Pleas, No. 1, of Allegheny county. On the 5th of June, 1879, the plaintiffs below, Lauer & Bro., filed a bill in equity, praying: (1) For a decree enjoining and directing defendants Hacke & Hugus to remove all obstruction from said alley way, so as to afford and allow plaintiff's free and common use of said alley four feet wide and ten feet high along the eastern end of defendants said lots. (2) To ascertain the loss and damage suffered by plaintiffs by reason of the obstruction of said alley way by defendants, and to order the payment thereof by defendants to complainants. An answer was filed and the case went to Hans B. Herron, Esq., Master, who found in favor of the plaintiffs, directing the defendants to remove the obstruction complained of from the alley way described, and allow the plaintiffs the free and common use of the alley. From that decree this appeal was taken. title to his own lot is subject to the way. But the appellants say: "For such injury the law gives a full and adequate remedy. For the relief of such injury equity has no jurisdiction." It has long been settled that nuisances to rights of way are one of the classes of cases in which the equitable remedy by injunction may be sought. This was established in England, and accepted as a rule in this country. No case has been cited where it was denied or doubted in this State. Its existence has been recognized. The dictum is, that the right should be clear to warrant a decree and injunction to compel the keeping open of a way, and if the right be doubtful, a chancellor will pause until it be established by law: King v. McCully, 38 Pa. St., 176. In Maryland, parties are entitled to such remedy, and a defendant who has obstructed For appellants, Messrs. D. T. Watson and W. the plaintiff's right of way over the defendant's L. Chalfant. Contra, Messrs. Robb & McClung. land will be restrained from further obstructing Opinion by TRUNKEY, J. Filed October 25, the grant being shown by the respective deeds 1882. That Thomas Brown is the owner of lot No. 106 Market street, with the free and common use of an alley four feet wide and ten feet high, is admitted. His title is by deed. He leased the premises to Lauer & Bro. for the term of ten years from the 1st April, 1869. They, by agree ment, released unto Hacke all their right to the said alley and allowed him to close up the same during the continuance of said lease; and Hacke covenanted that, "at the expiration of said Lauer's lease, the said alley is to be opened by said Hacke, his heirs or assigns.” under which Brown and Hacke hold their lots. The owner has a right to its enjoyment in the mode and form stipulated for in the deeds. The mere fact that the appellants prevent such enjoyment is sufficient ground for interference of the court by injunction. It is not necessary that the owner should prove damage to entitle him to his property. Like rule applies as if the right existed by covenant directly between Brown and Hacke, and in such case when the covenant is of such nature that it can, consistently with the principles of equity, be specifically enforced, the eourt will not, unless under The appellants claim no right to keep the very exceptional circumstances, take into conalley closed, except as granted in said agree-sideration the comparative injury to the parties ment. Lauer & Bro. had an interest, a title, at the time of making that grant, which would end on April 1, 1879, nothing more. And Hacke bound himself to open the alley when that title expired. There is no condition in their contract that if Lauer & Bro. should hold over, or acquire another term, that Hacke's performance of his covenant should be postponed. After the making of said agreement, Brown gave Lauer & Bro. another term of three years, by extending all the conditions and covenants of the first lease for said time. Their present right to the use of the alley is the same Brown would have if in possession of the lot. This right is clear and not doubtful. There needs no action at law to determine it. Reference to the record of the judgment in favor of Lauer & Bro. against Hacke for damages, caused by obstructions in the way prior to said permissive grant, can make the right no clearer. Hacke's from granting or withholding the injunction: Kerr's Inj. in Eq., 430. The obstruction of a way by the owner of the land, differs widely from the maintaining of a mill or factory which is in itself lawful, but by its noise, fumes or odors, becomes a private nuisance to a person in the vicinity. In the latter case the question of irreparable damages enters, and often a court of equity will not interfere: Richard's Appeal, 57 Pa. St., 105. The doctrine of that case applies to many other kinds of business; but not where a man buys land subject to an easement, or grants an easement. He cannot appropriate such property against the owner's will and say, I will compensate him in damages. A judgment for damages does not transfer the plaintiff's property in the way to the defendant, as would a judgment in trover or trespass for taking goods. Nor will the law restore enjoyment to the owner. He may have repeated actions for damages, and neither gain enjoyment nor lose his right thereto. The law does not offer an adequate remedy. He is entitled to a remedy that will restore him to enjoyment, and is not confined to actions at law for damages resulting from obstructions. failed to give the orders and specifications so that the stone could have been delivered within the stipulated time. But after the delivery had begun, the stone was not promptly furnished as required for the work. The parties differ as to cause, each alleging it was the other's fault. Decree affirmed and appeal dismissed at the One also alleges that part of the stone furnished costs of appellants. HUCKENSTEIN & CO. v. JOLLY. A. gave a judgment bond to B. to secure payment for stone which B. was to deliver at the rate of two car loads a day. The bond was entered up, and A. subsequently applied to have the judgment opened, alleging that there had been great delay in the deliveries, that some of the stones were not according to specifications, etc. A commissioner took evidence, which was very conflicting, each party alleging that the other had caused the delay, and on consideration the court refused to open the judgment. Held, to have been error. That as the application to open did not rest upon an attempt to overcome or vary a written contract by oral testimony, the weight of the evidence need not be so strong as if the written contract was sought to be overthrown. Appeal from the decree of the Court of Common Pleas, No. 1, of Allegheny county. Opinion by TRUNKEY, J. Filed October 25, 1882. was unfit and could not be used in the pier; the other, that the whole accorded with the specifications. Numerous witnesses testified respecting the disputed points, and their testimony is conflicting. An examination of the testimony convinces us that the appellants are entitled to a trial by jury. It would answer no good end to now remark the testimony at length or express our opinion of its weight. The order discharging the rule to show cause is reversed, and said rule is made absolute, and procedendo awarded. For appellants, Messrs. Barton & Son. WILSON & SONS v. WAUGH, JACK & CO. A new promise by a partner after dissolution of the copartnership, to pay a debt existing against the firm, will not take the debt out of the statute of limitations so as to make his copartners liable, excepting when the partner takes the stock in hand and becomes the liquidating partner, as in the case of Houser v. Irvine, 3 W. & S., 345. This power of one partner to bind another after dissolution, being exceptional, the facts which give rise to it must appear in any case where it is claimed to exist. and if they do not appear the general rule of nonliability applies and controls. Error to the Court of Common Pleas of Venango county. Jolly covenanted with Huckenstein & Co. that he would deliver all the new sandstone required for the construction of a new pier for the Union bridge, before September 20, 1881. Huckenstein & Co. gave a judgment bond with surety, to secure payment of the price, and the judgment was confessed on said bond. The contract and bond are unimpeached, neither party alleging fraud or mistake therein. This application for opening the judgment does not rest upon an attempt to overcome or vary a written contract by oral testimony. The appellants do not undertake that burden, and the weight of the evidence touching the disputed points need not be so strong in their favor, to move the court to open the judgment, as if the contract in writing was sought to be overthrown. That the party has a judgment as collateral security for what may be due upon a contract, is no rea-sideration, by a partner after the dissolution of son for refusing to open the judgment where there is a proper case for submission to a jury to determine how much, if anything, is due on that contract. Opinion by GREEN, J. Filed October 25, 1882. In delivering the opinion of this court in the case of Reppert v. Colvin, 12 Wright, 248, Mr. Justice READ, on page 252, said: "The law is well settled that after the dissolution of a partnership the partners cease to have any power to make a contract in any way binding on each other. The dissolution puts an end to the authority, and operates as a revocation of all power to create new contracts. Of course a new promise, of which the original debt is the only con the copartnership, will not take the debt out of the statute of limitations so as to make the copartners liable. The exception to this rule is when the partner takes the stock on hand and becomes the liquidating partner, as in the case of Houser v. Irvine, 3 W. & S., 345. The authority of Smith in that case, says Chief Justice GIBSON, 'was to settle partnership debts and pay them out of the effects in his hands.'" That this is the well understood law of this Commonwealth cannot be disputed. It has |