two contracts referred to in the plaintiff's affidavit were before the court, and subsequently, by order of the court, copies of said instruments were filed. Davis and Tingley, on January 1, 1871, agreed "to form a copartnership for the manufacture and sale of articles under their patent, known as Tingley's Patent Contracting Band for Casks and Other Vessels." It stated in the instrument that "said Tingley has recently added the very important improvement known as the 'New Revolving Ice-cream Machine;" and they further agree "that, in view of the important addition of the freezer to the original list of articles made under the said patent, the said Samuel L. Davis agrees to furnish $600, free of interest, as additional capital for the business." They also stipulate that "Davis shall act as a silent partner, and that his name shall not be used or known publicly in connection with this partnership;" and Tingley agreed to carry on the business for a named compensation. On June 6, 1871, Davis and Tingley granted to Blatchley the exclusive right to use both patents referred to in the articles of copartnership, in the manufacture of ice-cream freezers, within the United States, for a royalty or license fee of 5 per centum of the sales of said freezers, to be paid to said Tingley. The recital in this grant shows that Davis was a patentee in the first patent, and hence the necessity that he should be a party to the grant to Blatchley.

asard

The grant stopped the manufacture of freezers by Davis and Tingley, but it made no other change in their business, so far as appears at present. Davis was a joint owner in the first patent, and for a valuable consideration, he had an interest in manufacturing under the second; and, unless he was to share in the royalties and license fees paid by Blatchley, he gave away his interest, so far as related to the use of the patents for manufacturing said freezers in the United States. Nothing appears to indicate a gift. The affidavit sets forth that the grant was made in consideration that the royalties were to be paid to Davis and Tingley, and that Tingley received the same for their joint benefit. Tingley was to carry on the business of the partnership in his own name, and the provision that he should receive the royalties or license fees was consistent with the terms of their partnership. It is hardly probable that the silent partner in the firm which was using both patents would have joined in a sale of an important part of the business, as well as of the right to use the patents, without any real consideration for himself. We think the plaintiff's attidavit and the agreements show cause of action.

The judgment dissolving the attachment is reversed, and procedendo awarded.

(116 Pa. St. 28)

BOTTS v. KNABB, Adm'r, etc.1

(Supreme Court of Pennsylvania. April 11, 1887.) HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-CONTRACT REGARDING.

Under the Pennsylvania act of April 11, 1848, giving married women a separate estate in all property acquired by them, a married woman owning in her own right an improved farm is capable of binding her separate estate by a contract for the services necessarily required and rendered in harvesting, housing, and marketing for her benefit the growing crop on said farm.

Error to common pleas, Berks county.

Assumpsit by Williams Botts against Sarah Knabb, administratrix of Peter Knabb, deceased, and Sarah Knabb, his wife, to recover for services rendered in and upon the farm of defendant, Sarah Knabb. The facts are stated in the opinion.

Henry O. Schrader and Hiram Y. Kaufman, for plaintiff in error. The services were such as a married woman could contract for, and be made liable to pay for, under the act of 1848, not upon the head of necessaries, but

Edited by Henry R. Hatfield, Esq., of the Philadelphia bar. v.9A.no.1-3

upon the ground that they are repairs and improvement to her separate estate. Lippincott v. Hopkins, 57 Pa. St. 328; Lippincott v. Leeds, 77 Pa. St. 420; Mahon v. Gormley, 24 Pa. St. 80; Anderson v. Line, 12 Wkly. Notes Cas. 324; Guyer v. Harrison, 13 Wkly. Notes Cas. 537; Stevenson v. Anderson, 14 Wkly. Notes Cas. 89.

Israel C. Becker, for defendant in error.

The burden was on the plaintiff, if he desired to charge a married woman upon an alleged contract, to show that the alleged contract was an exception to the common-law rule that a married woman's contract is absolutely void. Moore v. Cornell, 68 Pa. St. 320; Berger v. Clark, 79 Pa. St. 340; Glyde v. Keister, 32 Pa. St. 85; Dorrance v. Scott, 3 Whart. 309; Caldwell v. Walters, 18 Pa. St. 79; Hecker v. Haak, 88 Pa. St. 238; Murray v. Keyes, 35 Pa. St. 384; Cummings v. Miller, 3 Grant, Cas. 146; Lloyd v. Hibbs, 81 Pa. St. 306. There is nothing in the evidence to show that a single item for which the defendant is sought to be charged was for necessaries in the maintenance of herself or her family. Parke v. Kleeber, 37 Pa. St. 251; Reed's Estate, 4 Phila. 375; Sawtelle's Appeal, 84 Pa. St. 306; Hecker v. Haak, 88 Pa. St. 238; Hugus v. Dithridge Glass Co., 96 Pa. St. 160. The proviso to the act of April 11, 1848, gives no express authority to a married woman to bind her separate estate by contract for the improvement or repair of her real estate. Fenn v. Early, 113 Pa. St. 264, 6 Atl. Rep. 58; Heugh v Jones, 32 Pa. St. 432; Murray v. Keyes, supra; Shannon v. Shultz, 87 Pa. St. 481. Nor is there anything in the evidence, taking it from the beginning to the end, to indicate or warrant the inference that any part of the claim made by the plaintiff here was for work and labor done in the repair, improvement, or preservation of her separate estate, or which was necessary for her enjoyment of the same, and hence there is nothing that would take this alleged contract with Mrs. Knabb, the defendant in this behalf, out of the common-law rule that a married woman's contract is absolutely void.

STERRETT, J. Plaintiff's contention is that the pleadings and evidence would have warranted the rendition of a verdict in his favor, and hence the court erred in not submitting the case to the jury. The sufficiency of the declaration cannot be doubted. It is in due form, setting forth, substantially, that Mrs. Knabb, one of the defendants, being sole owner, in her own right, of an improved farm on which was a growing crop, employed plaintiff to harvest, house, and market the same for her; that the services, thus contracted for, were fully performed, at her request, in and about the management of her separate estate, and that the same were "necessary for the preservation, enjoyment, use, and profit of the said separate estate by the said Sarah Knabb," etc. The fact that Mrs. Knabb was a feme covert at the time of making the alleged contract was conceded, and the only issues of fact were raised by the pleas of non assumpsit, payment with leave, etc. Evidence tending to sustain every material averment in the narr was introduced, but the learned judge nonsuited the plaintiff, and subsequently refused to take off the judgment, assigning as a reason therefor that "a married woman is not liable, at common law, upon her contracts; and as no statute, according to the construction given to our married woman's act, covers the case of this plaintiff, it must be decided that he cannot recover, although his claim is one that it seems ought in good conscience to be paid." It thus appears that the nonsuit was sustained on the broad ground that a married woman, owning in her own right an improved farm, is incapable of binding her separate estate by a contract for services necessarily required and rendered in harvesting, housing, and marketing, for her benefit, the growing crop on said farm. As a legal proposition this cannot be sustained.

Our married woman's act of April 11, 1848, declares: "Every species and description of property * which may be owned by or belong to any sin

gle woman shall continue to be the property of such woman as fully after mar-. riage as before; and all such property, of whatever name or kind, which shall accrue to any married woman, during coverture, by will, descent, deed of conveyance, or otherwise, shall be owned, used, and enjoyed by such married woman as her own separate property." In view of these express provisions, and the implied powers necessarily incident to such ownership, use, and enjoyment, the authority of Mrs. Knabb to make the contract in question appears to be so manifest that it scarcely admits of any doubt. While, perhaps, the precise question now presented has never been distinctly ruled, the underlying principle has been so conclusively settled that it is of easy application to the undisputed facts of this case. In Lippincott v. Hopkins, 57 Pa. St. 328, and Lippincott v. Leeds, 77 Pa. St. 420, it was held that a married woman is liable for such repairs of her separate estate, made at her request, as are necessary for its preservation and enjoyment. As was said in the latter case, such liability is the necessary result of the rights of the wife and the disabilities of the husband; that the right to own, use, and enjoy her separate real estate would be comparatively valueless without the power to take care of and preserve it from ruin, and hence the rights of property conferred necessarily imply a power to repair. Again, in Germania Savings Bank's Appeal, 95 Pa. St. 329, it was held that a married woman's power to contract for necessary improvements as well as repairs to her real estate is inseparably incident to her right to acquire and hold the same to her own separate use. The principle of these and other cases that might be cited, is clearly applicable to the case at bar, and is necessarily decisive of the question presented by the specifications of error.

Judgment reversed, and a procedendo awarded.

BILLINGTON, to Use, etc., v. GAUTIER STEEL CO., Limited.1
(Supreme Court of Pennsylvania. April 11, 1887.)

1. ESTOPPEL-EQUITABLE-RECOGNITION OF OFFICIAL CAPACITY.

Where a plaintiff has recognized one as secretary of a company defendant by serving him with process as such, he is estopped from treating him as a stranger to the proceedings, and denying his right to present any proper defense on behalf of the

company.

2. PLEADING-AFFIDAVIT OF DEFENSE-SUFFICENCY OF.

If the facts averred in an affidavit of defense furnish the necessary material for a

formal plea in abatement, the affidavit is sufficient to prevent judgment.

3. SAME-RECORD OF FOREIGN COURT.

The record of a foreign court is within the affidavit of defense law.

4. PARTNERSHIF-LIMITED ASSOCIATION-DISSOLUTION, DEFENSE TO ACTION.

The dissolution of a limited partnership association prior to the bringing of a suit against it, is a good defense to the action.

Error to common pleas No. 2, Philadelphia county.

Debt by Julius P. Billington, to the use of B. B. Osler and J. V. Teetzel, against the Gautier Steel Company, Limited, a partnership associated under the act of June 2, 1874, and its supplements. The facts are fully stated in the opinion. The court having discharged a rule for judgment for want of a sufficient affidavit of defense, plaintiff took this writ.

John H. Sloan, for plaintiffs in error.

The affidavit does not purport to be on behalf of defendant, but is made by an individual not sued and on his own behalf. It should therefore not be considered. Griel v. Buckius, 18 Wkly. Notes Cas. 425, 6 Atl. Rep. 153. This record is within the affidavit of defense law. Hogg v. Charlton, 25 Pa. St. 200; Moore v. Fields, 42 Pa. St. 467; Luckenbach v. Anderson, 47 Pa. St. 123; Palmer v. March, 64 Pa. St. 239; Wetherill v. Stillman, 65 Pa. St. 105;

Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

Power v. Winsor, 3 Wkly. Notes Cas. 360, 2 Amer. Lead. Cas. 612, 615; Wernet's Appeal, 91 Pa. St. 321; 4 Wait, Act. & Def. 189. The affidavit of defense law should be liberally construed. Vulcanite Paving Co. v. Philadelphia Traction Co., 19 Wkly. Notes Cas. 233, 8 Atl. Rep. 777.

J. B. Townsend, for defendant in error.

The dissolution of a joint-stock company is a good plea in abatement. 3 Chit. Pl. 20. The defendant being dissolved, some one else can come in and defend. McCabe v. U. S., 4 Watts, 325; Mumma v. Potomac Co., 8 Pet. 286; Mor. Corp. § 806. The record is not within the affidavit of defense law.

STERRETT, J. This action of debt is on a duly-certified record of judicial proceedings in the queen's bench division of the high court of justice of the province of Ontario, Canada, wherein judgment was rendered in favor of plaintiff, and against defendant, for $357.50, and costs. The summons was returned: "Served on the Gautier Steel Co., Limited, a partnership association under the act of June 2, 1874, and its supplements, by giving, October 30, 1886, a true and attested copy of the within writ, to William S. Robinson, secretary of said company, and making known to him the contents thereof." Robinson, the person thus served as secretary of defendant, intervened and filed an affidavit of defense, in which it is averred, inter alia, that when the writ was served he informed the deputy-sheriff he was not secretary of defendant; that said company or association had been dissolved by decree of court, its business wound up and settled, and that he (deponent) had no agency, power, or authority to represent or act for the said defendant." It is further averred, in substance, that the Gautier Steel Company, Limited, was organized in May, 1878, under the act of 1874, and after transacting business for over two years was duly dissolved by decree of the proper court on December 12, 1881; that from that time to the present "no such company, partnership, association, or business concern of any character known as or called the Gautier Steel Company, Limited, has ever had any entity or existence." It also appears by the affidavit that nearly five years thereafter, on petition of the use plaintiff, the same court made an order rescinding its former decree of dissolution, and restoring the company "to all its rights and privileges, and subject to all its liabilities." The court below having discharged the rule for judgment, the sole question for our consideration is the sufficiency of the affidavit of defense.

It is contended, in the first place, that inasmuch as the affidavit does not purport to be on behalf of the defendant, "but is made by an individual not sued and on his own behalf," it should not be considered. The obvious answer to this is that plaintiff, having recognized Robinson as secretary of the company defendant for the purpose of bringing it into court, is not in a position to treat him as a stranger to the proceeding, and deny his right to present any defense that may be properly interposed on behalf of the company.

It is further contended that the affidavit does not disclose any valid defense, but we cannot assent to this proposition. Limited partnership associations organized under the act of 1874 are in effect corporations, or quasi corporations. They are creatures of the law, and by its express provisions they may be dissolved, and thus cease to exist. In a suit against a corporation, it cannot be doubted that its previous dissolution may be interposed as a defense with same effect as the death of a natural person. The act of June 24, 1885, provides "that in every suit or judicial proceeding to which a corporation is a party the existence of such corporation shall be taken to be admitted unless it is put in issue by the pleadings." The proper time to interpose the fact of dissolution or non-existence of a corporation defendant is when the affidavit of defense is filed. If the facts therein averred furnish the necessary material for a formal plea in abatement, the affidavit is sufficient to prevent judgment. The affidavit in this case contains everything that is required for a good plea in abatement. It avers, in positive terms, the formal dissolution of the company and discharge of the liquidating trustees nearly five years before the commencement of this suit. It is no answer to say that, in less than a month before the summons in this case was issued, the same court, on petition of the use plaintiff, rescinded the final order of dissolution made so long before. Under certain circumstances, perhaps, a court might be warranted in rescinding a previous decree; but there is nothing in this record that would authorize the re-creation of a corporation or limited partnership association which the court by its decree had dissolved nearly five years before.

There is no merit in the defendant's position that the record of a foreign court is not within the affidavit of defense law. Writ of error dismissed, at the costs of plaintiff, without prejudice, etc.

MCCAFFERTY ข. BRADY and Wife.1

(Supreme Court of Pennsylvania. March 21, 1887.)

BAILMENT-LEGAL OWNER-ACTION TO RECOVER.

A., who had $500 belonging to B., deceased, gave the money to C., to whom B., in an unsigned will, and also, as C. alleged, in her life-time, had given it, and C. handed it to D. for safe-keeping. Some time after B.'s death, C. demanded the money of D., who never answered the demand. Upon a suit by C. against D. to recover this sum, which suit was not tried until over three years after B.'s death, D. defended on the ground that the only person entitled to the money was B.'s legal representative. It appeared that no administrator of B. had ever been appointed. Held, that C. was entitled to recover.

Error to common pleas No. 4, Philadelphia county.

Assumpsit by Charles Brady and Margaret, his wife, in right of the said Margaret, against Daniel McCafferty, to recover $500.

Sarah McGoldrick died at Orange, New Jersey, in 1881, intestate, leaving no children, but a number of collateral heirs. Margaret Brady, one of the plaintiffs, was the niece of the decedent, as was also the wife of the defendant. Upon hearing of the death of Sarah McGoldrick, the defendant and Margaret Brady proceeded to Orange, to bring the body of the deceased to Philadelphia to have it interred. In consequence of the health laws of Orange, they were not allowed to remove the body of the deceased at that time, and they then proceeded to the city of New York, and called upon Mary Manning, who had in her possession $500 belonging to the deceased and an unsigned will. This money Margaret Brady says Mrs. Manning gave to her, and that she gave it to the defendant for safe-keeping. The defendant says Mrs. Manning gave the money to him. He put the money in his safe in a bag by itself. This was where he kept his own money. A demand was made on him for this money in May, 1883. About four months after the death of defendant's wife, Margaret Brady sent a note to the defendant, demanding the $500 in question. The defendant then went to his safe where he had placed the money, and found it was gone. He swore he believed his wife gave the money to her sister during his wife's life-time, as no other person had access to the safe. The plaintiff in error declined to pay the $500 to Margaret Brady unless she would take out letters of administration on the estate of her aunt, Sarah McGoldrick, deceased, whereupon this suit was brought to recover the $500. The jury gave a verdict in favor of the plaintiffs below for the $500. Judgment having been entered thereon, defendant took this writ.

E. C. Quin, for plaintiff in error.

This money belonged to Mrs. McGoldrick's administrator. Williams, Ex'rs, 297, 305; Lee v. Wright, 1 Rawle, 149; Humphreys v. Humphreys, 3 P. Wms. 349; Stockton v. Wilson, 3 Pen. & W. 129.

Edited by Henry R. Hatfield, Esq.. of the Philadelphia bar.