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Alexander v. McMurry,. A devise of lands to the services were rendered, and (2) her husband executors, to be sold for the payment of debts being alive and not joined. Judgment was suband legacies, vests the estate in them as a trust sequently entered for plaintiff on the verdict, fund for that purpose, and if they neglect to HUNTER, P.J., filing the following opinion : execute the trust the creditors may sell the land “In answer to the plea of coverture, the plainupon a judgment and execution and the pur- tiff showed that the defendant had been decreed chaser will take a good title, and in such case a feme sole trader; had taken out a tavern lithere is no limit to the lien of the debts short of cense and was conducting a hotel in her own a presumption of payment from lapse of time name, and that the services rendered were those “Under the trust then created by the testator," of barkeeper in this hotel. On the argument said Mr. Justice KENNEDY in that case, “in the defendant's counsel contended that the Act of residuary clause of his will in favor of his cred- | 1872 (upon which the decree of the court was itors, we are of the opinion that they ought to be based) does not make a married woman a feme considered as having such a lien upon the estate sole trader to the extent of making her personthereby set apart for the payment of his debts as ally liable for her debts, although contracted in gave them the right at any subsequent period, the line of her business, nor in any event withhowever late, as long as the trust remained un- out her husband being joined in the suit. executed in their favor to proceed against it by “The first legislation on the subject in Pennexecution." We think, therefore, the decree of sylvania was the Act of 220 February, 1718, the court below directing the administrator to which provides that mariners or others going make application for an order to sell the lands to sea, leaving their wives at home at shopwas erroneous.

| keeping or work for a livelihood, shall be deDecree reversed, and now it is ordered that clared to be feme sole traders, and so the law the petition and supplemental petition be dis- stood for one hundeed and thirty-seven years, missed with costs, and that the costs of this ap- when the Act of 4th May, 1855, was passed. peal be paid by the appellees.

This is an enlarging act, declaring that drunk

enness or desertion of the husband sufficient to SARAH E. BOVARD v. JACOB D. KETTERING. give the wife the privilege of a feme sole trader,

and it was held in Black v. Tricker, 59 Pa. St., The Act of 9th April, 1872, P. L., 35, (separate earnings

13, that in such case she can claim this privilege of married women) only confers the right to refain earnings from the husband and his creditors, and does without a formal decree of court, notwithstandnot make one taking the benefit of it a feme sole trader. ing the provisions of the 4th section of the Act.

To become a feme sole trader a married woman must | Then follows the Act of 3d April. 1872, which I bring herself within the Act of 22d February, 1718, or of 4th May, 1855.

goes further and makes a married woman a The Act of 9th April, 1872, is an extension of the Act of feme sole trader as to her separate earnings,

11th April, 1848. It secures to a married woman her without regard to the absence at sea, habits or separate earnings, and, impliedly, authorizes her to aonduet of the husband and removes from the

conduct of the busband, and removes from the engage in business. By taking the benefit of it she

control of her husband her separate earnings. assumes the rights and is subject to the liabilities of a feme sole.

These acts being progressive should be construed It is not necessary to join the husband in a suit against a together. In Cleaver v. Scheetz, 20 P. F. Smith, married woman doing business under the Act of 1872.498. Justice AGNEW, in delivering the opinion

moreland county.

and 1855, under both of which he holds that The plaintiff in error, defendant below, on there must be a business carried on out of which petition duly filed in the Court of Common the rights of creditors must spring. The Act of Pleas of Westmoreland county, was allowed to 1872, as we have seen, makes the separate earntake the benefit of the Act of 3d April, 1872, ings of the wife, arising out of her business, her giving to married women their separate earn- own, which is in strict conformity with the view ings. Subsequently she obtained a license to taken by the court in construing the former keep a hotel. Her husband was living with acts. We cannot believe that the Legislature in her. The defendant in error was employed by this act intended that a married woman might Mrs. Bovard as clerk; bartender, etc., in the engage in business (as contemplated in the Acts house. For an unpaid balance of wages due of 1718 and 1855) and not be held responsible for him suit was brought against Mrs. Bovard with- debts contracted in the line of such business. out joining her husband, and there was a ver- Could it be possible that the meaning of the law dict in his favor and the question of law re- in this case is, that the defendant would take served whether there could be a recovery, the out a license and keep a hotel in her own name, defendant being a married woman at the time and employ servants and lay in supplies for her bar and table, and not be liable for debts con- retain her earnings from whatever source detracted therefor? This might be a profitable rived, as against her husband and his creditors. business for her but a very unjust one to her | Any married woman in the State, with or withcreditors, and especially when they depended out cause, may avail herself of the benefit of the upon a decree of court, which she herself pro- | Act of 1872, while to entitle her to become a cured, and under which she held herself out to feme sole trader, she must bring herself within the world as a feme sole trader. If our reason- either the Act of 1718 or 1855. ing be correct, then the position that her hus- The defendant below is a married woman, band should have been joined must pass with and had availed herself of the benefit of the Act it. That a feme sole trader may be sued with 1872. Her petition had been presented in the out naming her husband is ruled in Burke v. Common Pleas and properly recorded. SubseWinkle, 2 S. & R., 189.".

quently she obtained a license to keep an inn This writ was then taken.

or tavern in the borough of Greensburg, aud For plaintiff in error. Messrs. A. M. Sloan and this suit was brought against her by her barL. W. Doty.

keeper for his wages. There was no dispute Contra, William M. Given, Esq.

as to the services having been performed, and

little as to their value. The defendant set up Opinion by PAXSON, J. Filed November 20, 1882. | her coverture in bar of the action, and the

It was said in Jacobs v. Featherstone, 6 W. & learned court reserved the question of her liaS., 346, that: “There is no feme sole trading | bility. Subsequently judgment was entered for by a married woman with us, but such as is the plaintiff upon the reserved questions. licensed and regulated by the statute of 1718." We think the learned judge was not strictly Since that case was decided we have the later accurate in holding that the defendant was a Act of 4th May, 1855, P. L., 430, which provides feme sole trader, so far as her separate earnings that: "Whensoever any husband from drunk- are concerned. She was a feme covert with the enness, profligacy or other cause, shall neglect right to enjoy her earnings as a feme sole. or refuse to provide for his wife, or shall desert! Is a married woman who has applied for and her, she shall have all the rights and privileges received the benefits of the Act of 1872, and secured to a feme sole trader under the Act of who has subsequently engaged in business un220 February, 1718," etc.

der the sanction and protection of said act, liaIt was not contended that the defendant below ble to be sued upon her contracts made in the was within the protection of either of the above prosecution of such business? Acts of Assembly. But the learned judge of the It is conceded she is not liable upon her conCommon Pleas was of opinion and so ruled, tracts generally. But there is a line of cases upon the questions reserved, that the Act of 9th | since the Act of 1818 which hold that, so far as April, 1872, P. L., 35, makes a married woman it beconies necessary to the use and enjoyment who complies with its terms, a feme sole trader of her separate estate, a married woman may so far as her separate earnings are concerned. both sie and be sued: Shcidle v. IVeishlee, 4 We do not so understand it. The Act of 1872 Harris, 134; Murray v. Keyes, 11 Casey, 384; was not intended for any such purpose. The Lippincott v. Hopkins, 7 P. F. Smith, 328. Act of 1818 had secured to married women their Were it otherwise, a married woman, no matter separate estates, but their earnings still belonged how ample her estate, could not put a new roof to their husbands: Speakman's Appeal, 21 P. on her house when necessary, nor rebuild it if F. Smith, 25. To remedy this supposed defect destroyed. If she loaned her money out she in the law the Act of 1872 provided that: “The could not recover it back. On the other hand, separate earnings of any married woman of the the mechanic, who repaired her roof or rebuilt State of Pennsylvania, whether said earnings her house, would have had no remedy to reshall be as wages for labor, salary, property, cover his money. business or otherwise, shall accrue to and inure The Act of 1872 is but an extension of the Act to the separate benefit and use of said married of. 1818. Is there any reason why the above woman, and be under the control of such mar- stated rule should not apply? The act secures ried woman, independently of her husband, and to her the earnings of her business. This is an so as not to be subject to any legal claim of such implied authority to engage in business. She husband, or to the claims of any creditor or is to enjoy her earnings "the same as a seme creditors of such husband, the same as if such sole." If she assumes the rights of a feme sole married woman were a feme sole." It will she is also subject to the duties and liabilities thus be seen that this act confers but a single of a feme sole. The Act of 1872 was not intended right upon a married woman, viz., the right to I to license a class of female pirates who should

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engage in business without responsibility, and The appellees were lessees of a building owned make reprisals upon the grocer, the baker, the by one Brown, situated on Market street, in the butcher, the mechanics and other persons with city of Pittsburgb, distant forty feet from Fifth whom she may deal in the transaction of her avenue and running back eastwardly eighty business. To the extent that the defendant ob- feet. Their lease was for ten years from April tained the services and property of others in 1, 1869. Hacke, one of the appellants, owned keeping her hotel, she is liable to the parties the ground and buildings lying between the in a suit at law precisely as if she were a feme Brown property and Fifth avenue, subject to sole.

the free and common use of an alley four feet Objection was made that her husband was wide and ten feet high at the rear, running not joined in the suit. Why should he be? from the avenue to Brown's lot. It is not pretended that he is responsible for the Hacke having subsequently acquired other debts contracted by the defendant in her busi- | property on. Fifth avenue, in rear of his lots, deness. The rule of the common law undoubtedly sired to erect a building fronting on Fifth aveis that a married woman can neither sue nor be nue and closing the alley. To do this it became sued without the joinder of her husband. The necessary to tear down the party wall between reason of the rule is the unity of the parties. the lots of plaiutiffs and defendants and erect The legal existence of the wife is merged in that a new one for the new building. An agreement of her husband. The Aets of 1848 and 1872 have dated 18th April, 1872, was entered into between emancipated married women to some extent the plaintiffs and defendants.wbereby said from the shackles of the common law. For Lauer & Bro., to the extent of their right and certain purposes a married woman now stands interest, gave their free consent to Hacke to tear upon the same plane as a feme sole. To this down the existing party wall without delay, extent the legislation referred to has destroyed and to erect the new party wall proposed by that unity of person which existed at the com- him. Hacke agreed, at his own expense, to mon law, and which required the joinder of her shore up the floors of the house in the tenancy husband in a suit by or against her. Why and possession of Lauer & Bro., etc., and Lauer should the rule be applied here? Cessante ra- & Bro., to the extent of their interest in the tione legis, cessat ipsa lex. It has been expressly premises, released unto Hacke all their right, decided that in a suit against a feme sole trader title and interest to the alley in the rear of her husband need not be joined: Burke v. Hacke's lot, and agreed to allow Hacke to close Winkle, 2 S. & R., 189.

up the same during the continuance of their It would have been more orderly had there lease,-Hacke granting to them the right to been a replication to the plea of coverture. But bring water through his cellar from Fifth aveas we have not been furnished with the plea wenue, and to drain water into his waste pipe. decline to consider this question.

| Hacke was to look exclusively to Brown, the We are of opinion the plaintiff below was owner of the Lauer house and lot, for contribuentitled to judgment upon the points reserved. tion to the cost of the party wall.

Judgment affirmed. The lease from Brown to Lauers contained

the following provision, viz: “It is hereby HACKE & HUGUS, Appellants, v. J. G. LAUER

further agreed between the parties hereto, that & BRO., Appellees.

should the said parties of the second part con

tinue to occupy the said tenement after the exIt is settled law that nuisances to rights of way are re

piration of the term above limited, by consent mediable by injunction. The right must be clear to warrant a decree and injunction to compel the keep

of the said party of the first part, without entering open of a way, and if it be doutful, must be first ing into any further or other agreement then established in an action at law.

the amount of rent, times of payment and other Where a right of way is granted by deed, the owner has

covenants and agreements hereiubefore mutua right to its enforcement in the mode and form stipulated by the deed, and the fact that such enjoyment

ally agreed upon, shall be continued as applicais prevented is sufficient ground for interference by ble to such further terms as the said party may injunction.

continue to occupy the relation of landlord and When the covenant is of such a nature that it can, con

it can, contenant."
sistently with the principles of equity, be specifically
enforced, the court will not, unless under very excep-

On the 19th day of April, 1872, being the day tional circumstances, take into consideration the com- after the written agreement between Lauers parative injury to the parties from granting or with- and Hacke was executed, the Lauers, by a writholding the injunction.

ing endorsed on the original, procured an exAppeal 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 plaintiff's below,

RU

Lauer & Bro., filed a bill in equity, praying : title to his own lot is subject to the way. But (1) For a decree enjoining and directing defend the appellants say: "For such injury the law ants Hacke & Hugus to remove all obstruction gives a full and adequate remedy. For the refrom said alley way, so as to afford and allow lief of such injury equity has no jurisdiction." plaintiff's free and common use of said alley four It has long been settled that nuisances to feet wide and ten feet high along the eastern rights of way are one of the classes of cases in end of defendants said lots. (2) To ascertain which the equitable remedy by injunction may the loss and damage suffered by plaintiffs by be sought. This was established in England, reason of the obstruction of said alley way by and accepted as a rule in this country. No case defendants, and to order the payment thereof has been cited where it was denied or doubted by defendants to complainants.

in this State. Its existence has been recognized. An answer was filed and the case went to The dictum is, that the right should be clear to Hans B. Herron, Esq., Master, who found in warrant a decree and injunction to compel the favor of the plaintiffs, directiug the defendants keeping open of a way, and if the right be doubtto remove the obstruction complained of from ful, a chancellor will pause until it be estabthe alley way described, and allow the plaintiffs lished by law: King v. McCully, 38 Pa. St., the free and common use of the alley. From 176. In Maryland, parties are entitled to such that decree this appeal was taken.

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. .

land will be restrained from further obstructing Contra, Messrs. Robb & McClung.

the way: Shipley v. Caples, 17 Md., 179.

This right of way is founded upon contract, Opinion by TRUNKEY, J. Filed October 25, I the grant being shown by the respective deeds 1882.

| under which Brown and Hacke hold their lots. That Thomas Brown is the owner of lot No. The owner has a right to its enjoyment in the 106 Market street, with the free and common mode and form stipulated for in the deeds. The use of an alley four feet wide and ten feet high, mere fact that the appellants prevent such enis admitted. His title is by deed. He leased joyment is sufficient ground for interference the premises to Lauer & Bro. for the term of ten of the court by injunction. It is not necessary years from the 1st April, 1869. They, by agree that the owner should prove damage to entitle ment, released unto Hacke all their right to the him to his property. Like rule applies as if said alley and allowed him to close up the same the right existed by covenant directly between during the continuance of said lease; and Hacke Brown and Hacke, and in such case when the covenanted that, "at the expiration of said covenant is of such nature that it can, consistLauer's lease, the said alley is to be opened by ently with the principles of equity, be specifisaid Hacke, his heirs or assigns."

cally 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 from granting or withholding the injunction: the time of making that grant, which would Kerr's Inj. in Eq., 430. The obstruction of a end on April 1, 1879, nothing more. And Hacke way by the owner of the land, differs widely bound himself to open the alley when that title from the maintaining of a mill or factory which expired. There is no condition in their contract is in itself lawful, but by its noise, fumes or that if Lauer & Bro. should hold over, or ac-odors, becomes a private nuisance to a person quire another term, that Hacke's performance in the vicinity. In the latter case the question of his covenant should be postponed.

of irreparable damages enters, and often a court After the making of said agreement, Brown of equity will not interfere: Richard's Appeal, gave Lauer & Bro. another term of three years, 57 Pa. St., 105. The doctrine of that case apby extending all the conditions and covenants plies to many other kinds of business; but not of the first lease for said time. Their present where a man buys land subject to an easement, right to the use of the alley is the same Brown or grants an easement. He cannot appropriate would have if in possession of the lot. This such property against the owner's will and say, right is clear and not doubtful. There needs I will compensate him in damages. A judg. no action at law to determine it. Reference to ment for damages does not transfer the plainthe record of the judgment in favor of Lauer & tiff's property in the way to the defendant, as Bro. against Hacke for damages, caused by ob- | would a judgment in trover or trespass for takstructions in the way prior to said permissive | ing goods. Nor will the law restore enjoyment grant, can make the right no clearer. Hacke's / to the owner. He may have repeated actions

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for damages, and neither gain enjoyment nor failed to give the orders and specifications so
lose his right thereto. The law does not offer that the stone could have been delivered within
an adequate remedy. He is entitled to a remedy the stipulated time. But after the delivery had
that will restore him to enjoyment, and is not begun, the stone was not proniptly furnished
confined to actions at law for damages resulting as required for the work. The parties differ as
from obstructions.

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.

was unfit and could not be used in the pier; the

other, that the whole accorded with the specifiHUCKENSTEIN & Co. v. JOLLY.

cations. Numerous witnesses testified respectHUCKENSTEIN & CO.'S APPEAL. ing the disputed points, and their testimony is

conflicting. An examination of the testimony A. gave a judgment bond to B. to secure payment for stone which B. was to deliver at the rate of two car loads

convinces us that the appellants are entitled to a day. The bond was entered up, and A. subsequently a trial by jury. It would answer no good end applied to have the judgment opened, alleging that to now remark the testimony at length or exthere had been great delay in the deliveries, that some

I press our opinion of its weight. of the stones were not according to specifications, etc.

The order dişcharging the rule to show cause
A commissioner took evidence, which was very con-
flicting, each party alleging that the other had caused is reversed, and said rule is made absolute, and
the delay, and on consideration the court refused to procedendo awar:led.
open the judgment. Held, to have been error. That

For appellants, Messrs. Barton & Son,
as the application to open did not rest upon an at-
tempt to overcome or vary a written contract by oral

Contra, John R. Large, Esq.
testimony, the weight of the evidence need not be so

WILSON & SONS v. WAUGH, JACK & CO. strong as if the written contract was sought to be overthrown,

A new promise by a partner after dissolution of the coAppeal from the decree of the Court of Com partnership, to pay a debt existing against the firm, mon Pleas, No. 1, of Allegheny county.

will not take the debt out of the statute of limitations

so as to make his copartners liable, excepting when Opinion by TRUNKEY, J. Filed October 25,

the partner takes the stock in hand and becomes the 1882.

liquidating partner, as in the case of Houser r. Irvine, Jolly covenanted with Huckenstein & Co. 3 W. & S., 345. that he would deliver all the new sandstone

This power of one partner to bind another after dissolu

tion, being exceptional, the facts which give rise to it required for the construction of a new pier for

must appear in any case where it is claimed to exist, the Union bridge, before September 20, 1881. |

and if they do not appear the general rule of nonHuckenstein & Co. gave a judgment bond with liability applies and controls. surety, to secure payment of the price, and the Error to the Court of Common Pleas of Vejudgment was confessed on said bond. The con- | nango county. tract and bond are unimpeached, neither party Opinion by GREEN, J. Filed October 25, 1882. alleging fraud or mistake therein. This appli- In delivering the opinion of this court in the cation for opening the judgment does not rest case of Reppert v. Colvin, 12 Wright, 248, Mr. upon an attempt to overcome or vary a written Justice READ, on page 252, said: “The law is contract by oral testimony. The appellants do well settled that after the dissolution of a partnot undertake that burden, and the weight of nership the partners cease to have any power the evidence touching the disputed points need to make a contract in any way binding on each not be so strong in their favor, to move the other. The dissolution puts an end to the aucourt to open the judgment, as if the contract thority, and operates as a revocation of all power in writing was sought to be overthrown. That to create new contracts. Of course a new promthe party has a judgment as collateral security ise, of which the original debt is the only confor 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 the copartnership, will not take the debt out of there is a proper case for submission to a jury the statute of limitations so as to make the coto determine how much, if anything, is due on partners liable. The exception to this rule is that contract.

when the partner takes the stock on hand and Here the allegations and testimony have re- becomes the liquidating partner, as in the case of spect to the manner of performance, and delay Houser v. Irvine, 3 W. & S., 345. The authority in performance, by the plaintiff in the judg of Smith in that case, says Chief Justice GIBment, of his contract. That there was consider-son, 'was to settle partnersbip debts and pay able delay, is agreed; and that by reason there- them out of the effects in his hands.!!! of Huckenstein & Co. suffered loss is clearly That this is the well understood law of this proved. It also appears that Huckenstein & Co. | Commonwealth cannot be disputed. It has

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