Burnett, J. The principles involved in this case are, in my view, very important, and as I am compelled to dissent from the opinion of my associates, I will proceed to state my reasons.
A very important question raised and decided in the Court below, was whether the capital invested must be the separate property of the wife, or may be the property of the husband, when the amount does not exceed the sum of five thousand dollars, even conceding that the husband is indebted to others at the time the capital is furnished by him. The laws of this State exempting the homestead from forced sale, and a large amount of other property, and securing to the wife her separate property, giving her also one-half of the community property upon the death of the husband, and denying the husband the right to dispose of her portion of the common property by will, as this Court has held in the case of Beard v. Knox, (July Term, 1855,) are perhaps, when taken together, more liberal to families than the laws of any other State in the Union. The rights of honest creditors are more restricted here than elsewhere, and after having made these large reservations for the wife and family of the judgment-debtor, an intention to increase these reservations ought to be very explicitly and plainly expressed, before a Court would be justified in arriving at such a conclusion.
There is'nothing in the act of 1852, that expressly says that the money invested in the business of the wife, may be composed of the property of the husband, and if so, shall be protected from his creditors. Taking the different statutes together, there would seem to be no great difficulty in understanding the intention of the Legislature. Under the act of [460185]0, the husband was allowed the management and control of the separate property of the wife, and could appropriate absolutely the profits of her separate estate in the same way that he could the common property of both. This left the wife no power to use or enjoy her own property, except as her husband permitted. She could not derive any benefit from it, except by her husband’s consent. The statute of 1852, was designed to secure her rights as the owner of separate property. The Constitution had itself bestowed upon her full capacity to own separate property; and the capacity to own property, without the capacity to use it in lawful business, and as one may please to use it, is but the shadow without the substance. The intention of the Constitution was not legitimately carried out by the act of 1852. And the language of the third section is substantially a declaration that the property invested in the wife’s business must be her separate property. The intention of this section is not to declare that the property of the husband may, by operation of the statute, become the property of the wife. The wife makes her declaration that she will do business in her own name, and on her own account, and this is substantially saying that she will do business upon her own capital. It is true the fifth section requires her to make a statement, under .oath, that the surplus money above five thousand dollars invested in her business, did not come from any funds belonging to her husband. But this provision seems only intended as a guard against fraud when the amount was large, and cannot, by construction, be extended beyond its express provisions. It simply requires the statement, under oath, of the wife, when the capital invested in the business exceeds a certain sum, and does not say that when the capital is less than the sum stated it may come from the funds of the husband, and shall be protected from his creditors. Had the statute intended to exempt from execution the sum of five thousand dollars, in addition to the large amount of property previously reserved, there certainly would have been clear affirmative words to that effect, and the intention would not have been left to inference. The Court below, therefore, very properly decided that the money invested in the business of a feme sole trader, must not have come from the funds of the husband.
The defendant objects to the judgment of the Court below, as well as the finding of the Judge, sitting as a jury, -upon the ground that there were conclusive evidences of fraud oh the part of husband and wife, and the finding and judgment should have been for defendant.
The act of 1852, as before remarked, was intended to carry out the benevolent provisions of the Constitution, by giving to the wife that use of her separate property which is naturally incident to its ownership. But it never was the design of that act to provide ways and means for the commission of frauds [461]upon creditors; nor was it intended to give the husband and wife greater power to contract and deal with each other than that which previously existed. In other words, those relations and disabilities that naturally flow from the married state, were only modified in so far as they were inconsistent with the ownership of separate property by the wife, and her resulting right to use that property in business on her own account. It was intended that the business should be, in truth and in fact, and not in mere name, the separate business of the wife. The law was only intended for her benefit, to secure her the fair use of her own property and the profits of her legitimate business, and not to aid an insolvent husband in concealing his property from his creditors. The provisions of the law, when justly and legitimately applied, give the wife the perfect right, at any time, in her own discretion, to engage in business for herself) and in her own name, upon her own separate means, and secure to her the capital invested and all the profits of the business, independent of her husband, and without any regard to his condition or character, whether solvent or insolvent, idle or industrious, honest or dishonest.
That this statute has-been greatly abused, and often perverted from its benevolent intent, there can be no question; and that it is the duty of the Courts to carry out its provisions, and at the same time to carefully prevent these abuses, would seem equally clear. If the Courts permit these great abuses to exist, then the statute becomes an instrument of evil, instead of good, and the ultimate and inevitable result must be, that the law itself will either become odious to the community, or the community itself will be more or less demoralized. Since the passage of the act, in 1852, the public prints have teemed with notices, on the part of married women, that they intended to carry on business in their own names; and the different kinds of business specified have included stock-raising, farming, blacksmithing, carpentering, brick-making, and almost all other kinds of business that are carried on most generally by men, and are, in their nature, unsuitable to the capacity, education, and position of females; and in many cases, the ostensible business of the wife was but a continuation of that of the husband, and a business not adapted to her capacity or position, but especially suited to his; and in most such cases, he is found conducting the business under the alleged capacity of agent of his own wife. Under such circumstances, it would seem to be the duty of the Courts to guard against these perversions of the law, not only in justice to the wronged and injured creditor, but in support of public morals and the best humanity ; for if these monstrous abuses are not checked, the practice of married women doing business on them own account will become so disreputable, that decent females will suffer any privation before they will incur the odium of engaging in such a [462]business. The practical result will then be this: the abuses of the law will exist, while the good intended to be accomplished by it will be mainly defeated.
In the present case, it was shown that the husband of plaintiff had been engaged in the manufacture and sale of ready-made clothing; that a tailor employed by him had sued for his wages, obtained judgment and execution, under which the stock of the husband was sold out; that in a short time the wife was carrying on the same business, employing the same workman, and her husband acting as her agent, and that the capital on which the plaintiff commenced business was composed of six hundred and fifty dollars, the property of the husband, and two hundred dollars which she borrowed upon her own account. The plaintiff, before the failure of her husband, had done her own housework; had kept several boarders, her husband paying the rents and expenses of the establishment; and this six hundred and fifty dollars had been laid by, from time to time, by plaintiff, as she received the same in different sums from the boarders. The Court below very properly decided that the six hundred and fifty dollars was the money of the husband, as our statute had expressly so provided.
The combined circumstances of this case would seem to amount to full proof of fraud, and we think the Court below should have so found. The fact that the former business of the husband is continued and conducted by him as alleged agent of his wife, is a circumstance so pregnant with suspicion, that it should be held as conclusive evidence of fraud. The husband should not be permitted to act as the agent of his wife. Our statute holds the possession of personal property by the seller, after sale, as conclusive evidence of fraud, and this rule has ever been considered, by the wisest and most humane Judges, as the best practical rule, because it provides a simple and efficient check, and thus removes the opportunity and temptation to do wrong. And a rule equally plain and practical should be applied in the case of feme sole traders. If the husband wishes to do business suited to his own capacity, let him do it upon his own capital and in his own name, and if he cannot do this, and is compelled to enter the employment of others, let him obtain employment from some one else than his wife. Honest and fair industry, combined with prudent economy, never did fail in our country, and the more strictly parties are held to these necessary traits of character, the better for them and for the community at large.