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Brooklyn City Court.-Robert Bage agt. O. A. Millard, James L. Millard & L. Millard. refused. Lord Langdale saying that before ordering a partial execution of a contract by directing the limited interest of the vender to be conveyed, the Court ought to consider how that proceeding may affect the interest of those who are entitled to the estate, subject to the vender's interest, and that it would be unreasonable and prejudicial in that case to direct a partial execution of the contract. Suppose the estate for life, which the seller in the present case has as tenant by courtesy, were conveyed to the plaintiff, may it not prove prejudicial to the interests of the infant defendants who were not parties to, and are not bound by the contract? I cannot but think so; for, by the use made of the land, although no waste may be committed, plaintiffs may affect injuriously its prospective value. And besides, if it should, as it probably will be, for the interest of the infants, that the land should be sold before they arrive at age, it would produce a larger price if sold with the life estate than without it. This estate plaintiff would, in the event of a conveyance to him, control; but the father, if he retained it, would be more likely to part with it upon such terms as would best promote the interests of his children than a stranger would.

Again if the life estate only were conveyed to the plaintiff, it would leave the principal part, and what both parties must have contemplated as the principal part of, and inducement to, the contract, unperformed. I have not found a case where a partial performance was decreed under such circumstances. See Willard vs. Millard, 2 Dow, P. Cas. 274, Batten on Contracts, 60-61.

I do not perceive why damages would not be sufficient, in the present case, to give plaintiff all the redress to which he is entitled. He is a land-broker, and probably bought the land for resale, and not for his own. use. There is nothing calling specially for a performance to the extent to which the seller is able to perform; and I do not think, as I have already intimated, that a partial performance was contemplated.

The infants ought not, I think, to have been made parties. They neither authorized nor ratified the contract; nor, indeed, can they ratify it while they remain, as they are, under age, and they are still of tender years. The agreement, as to their interest, was premature and unwarranted. The complaint must, therefore, as to them, be dismissed, and, I think, with costs. A similar course was taken in Welthrop vs. Holgate, and in Sainsbury vs. Jones, Ub. Sup.

As to the adult defendant, although a specific performance cannot be directed, the action may be retained, and the plaintiff may proceed for a return of the amount paid, and for damages.

The sum of $1,000 having been paid on the purchase, the purchaser has an equitable lien to that extent upon the vendor's interest, and the latter must be restrained from partiug with or encumbering his life estate, until he has paid, or secured to the satisfaction of the Court the $1,000 so paid, with interest, or until the further order of the Court.

Under the Statute of July 18th, 1853, relating to suits against husband and wife for the debts of the wife before marriage, the judgment should be special, pursuing the language of the Statute.

Where a marriage took place after the Statute of 1848, depriving the husband of the right of acquiring the property of the wife, and the suit was brought after the Statute of 1853 upon a debt contracted in 1852, the husband was held exempted from liability for such debts contracted by the wife before marriage, and before the Statute of 1853. Held that the creditor acquired no such vested right in a contingent liability of a future husband, when the debt was contracted as to render the Statute of 1853 inoperative.

The facts sufficiently appear in the opinion of the Court.

S. Williams, for plaintiff.

A. R. Dyett, for defendant.

HOFFMAN, J.-The complaint sets forth that the firm of G. B. and T. L. Foote sold and delivered certain goods to the defendant, Mrs. Morris, in October and November, 1852, while she was a single woman; that the claim has been assigned to the plaintiff, who is now the lawful owner thereof; that after the sale and expiration of the credit given, such defendant married the other defendant, some time in January, 1853, and prays for judgment for the balance of the debt; a portion being admitted to have been paid. Judgment is demanded against the said defendants, husband and wife, for the sum, with interest and costs. The defendant demurs, first, because by the law no judgment can be entered against the husband for goods sold the wife before marriage; next, because judgment is demanded against the wife without averring that she has any separate personal or real property, which may be bound by the same, or out of which it may be satisfied.

1st. By the Statute of July 18, 1853, (Sess. Laws, chap. 576,) and the first section thereof, an action may be maintained against the husband and wife, jointly, for any debt of the wife contracted before marriage; but the execution on any judgment in such action, shall issue against, and such judgment shall bind the separate estate and property of the wife only, and not of the husband. The section provides, "that

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N. Y. Superior Court.-Foote agt. Morris and Wife.

any husband who may thereafter acquire the separate property of his "wife, or any portion thereof by any ante-nuptial contract, or otherwise, shall be liable for the debts of his wife, contracted before mar"riage, to the extent only of the property so acquired, as if this act had "not been passed."

The present complaint has been framed, in some measure, upon the ordinary precedents of a declaration against husband and wife, for the debt of a wife incurred while single, but modified under the code. (Chitty on Pleading, 2, 96.)

I think that if the case comes under the statute referred to, the judgment should be special. It should adjudge the recovery out of the separate property of the wife, and the execution should pursue the judgment. Otherwise the judgment would be docketted against, and bind the land of the husband, on its face at least; thus embarrassing his transfer of property.

The prayer of the complaint should then be for such a judgment as the plaintiff ought to enter; and, in the present case, the prayer should at any rate be amended.

2d. But the defendant also insists that the complaint should designate the separate property which is sought to be rendered liable for payment of the demand; assimilating the case to a proceeding in equity, to render a wife's equitable estate subject to her debts or contracts, affecting it.

Upon consideration, I think this is unnecessary. The action is, by the statute, to proceed against husband and wife; and the statement of the cause of action is in this pleading sufficiently precise. I think it sufficient to modify the judgment, and leave the enquiry as to what property is bound, at large, as in ordinary cases. The judgment is in effect a judgment against the wife's separate estate only, and against her the allegations are full and definite.

3d. But a more important question arises, and that is whether the case is within the Statute at all. The debt was contracted by the woman, and the marriage took place before the passage of the Act. The point is whether the Statute could affect the husband's liability.

It does not profess in terms to cover cases, which occurred before its enactment. It is consistent with its phraseology, to limit its operation to cases of subsequent marriages.

It was held under the act of 1848 (ch. 200) which gave full power to a married woman to take and dispose of property as if she were sole, that it could not impair any marital right of a husband in cases of anterior marriages.

In Hurd vs. Cass, (10 Barb. Supreme Court, Rep. 366,) a question arose under that statute and was decided. The husband was plaintiff in ejectment. The marriage had been entered into in 1845. In December, 1849, a conveyance of real estate was made to the wife. She died in April, 1850, leaving the plaintiff, and an infant daughter, born 10th May, 1849, and living at the time of action.

It was held that the Statute had not affected the title of the husband, as tenant by the courtesy, and he recovered.

THE NEW YORK LEGAL OBSERVER.

N. Y. Superior Court.-Foote agt. Morris and Wife.

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The principle of these statutes of 1848 and 1853, appears to be this; that as the property of the wife is made her own, and not liable to the disposal or debts of the husband, so the debts of the wife should remain her own, or rather charged solely upon her separate estate. And it may be urged that if the Act of 1848 could not impair rights of a husband in the case of a prior marriage, neither should the Act of 1853, alter his responsibility under a prior marriage.

But another consideration then arises. The ground on which a husband was made responsible for the debts of the wife, is mainly his right to her property acquired by the marriage. (Earl of Thomond v. Earl of Suffolk, 1 P. Wns. 469.) The first section of the Act of 1848, (2 R. S. p. 331, 86, 65, 4th Ed.,) operated to take all the wife's property in this case from him, the marriage being subsequent to its passage.

The question under the act of 1853, has not, I believe, received any judicial determination. After some hesitation I have concluded, that it will bear the construction which is probably most consistent with the views of the Legislature, and that the husband is not responsible for the debts of the wife, incurred while single, and incurred since the statute of 1848; and of course when the marriage was subsequent. I shall be glad if my opinion is put in the way of revision by a higher court.

It may be a question whether an act so operating is constitutional, supposing it was intended to cover a case like this.

In Quackenboss v. Danks, (1 Denio, 128,) a case arose which bears upon the question.

In

In January, 1837, Fitch recovered judgment against Danks. January, 1843, an alias fieri facias was issued, and delivered to the plaintiff in error, Quackenbush, a deputy sheriff, who took the property in question. Danks claimed that it was exempt from execution under the act of 1842. It was a horse and cart used for his daily business.

The court held. First, That the language of the act did not necessarily extend to the rights or contracts accruing prior to its passage, and the words should not be construed, if it could be avoided, so as to operate upon past transactions, (Sachett v. Andross, 5th Hill, 334.) Next. That if the language was broad enough, then that the act was a law, impairing the obligation of contracts, and was void. (McCracken v. Hayward, 2 Howard, 608.)

It strikes me as pressing the doctrine very far to say, that when a party contracts with a single woman, the possible responsibility of a future husband so essentially enters into the contract as to render void a law of the State taking away such responsibility, passed after the marriage; and when at the time of the contract, the party knew that the future husband would acquire no interest in her property by the marriage.

If no such contingent right arises at the date of the contract, the next question is, does it become a vested right upon the marriage, so that the Legislature cannot affect it.

This liability of the husband rested upon a technical rule, and a solid equity. As to the latter, it is removed, when the husband cannot obtain by marriage the property, on which presumptively the credit was

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N. Y. Superior Court.-Foote agt. Morris and Wife.

given. As to the former, the suit still is in form against both. Upon the question of construction, it may be observed that the second section comprises the case of a husband, who was such at the date of the act, and might acquire separate property of his wife after such date. I take it also that the acquisition contemplated by the act may be made by virtue of a contract before the statute, or afterwards. Yet the responsibility of the husband is limited to the extent of the property so acquired.

If the law of 1853 is not void on this ground, in its application to a case like the present, then I think that the words are sufficient to cover it, and that it is equitable to give them such construction.

My opinion, therefore is, that the law of 1853 operates to discharge a husband from the debts of a wife, contracted before marriage, when the marriage has taken place, and the contract was made subsequent to the act of April, 1848.

The judgment will be as follows :—

It is ordered and adjudged that judgment be entered in favor of the plaintiff, to bind the separate estate and property of the defendant, Sarah Morris, wife of the other defendant only, and not the property of the husband; and that the execution to be issued upon such judgment, if any, shall issue against such separate estate and property of the said Sarah Morris, the wife only, and not against the property of the husband; such judgment to be for the amount demanded in the complaint with interest and costs.