In Chancery.-Mallory and Hunter v. Vanderheyden and wife.

December, 1837, became indebted to the com- having been transferred to her, for her sole and separate use, by the executors of her father's estate.

The bill further alleged that in addition to the property she had received from John J. Bradt's estate and invested in bank stock before the debt in question accrued, she was still entitled to a large amount of property yet remaining in the hands of the executor.

t plainants for goods sold and delivered, and for money paid, lent, and advanced to her, for the support of herself and her infant children, to the amount of $2022.96. That at the time said indebtedness accrued she was the widow of John J. Bradt, deceased. That on the 6th December, 1837, she married the defendant, Levinus Vanderheyden. That statements of said indebtedness were pre- The complainants prayed for satisfaction sented to her at several times, both before and of their demand out of her separate property. after her marriage to Vanderheyden, which The defendants demurred, and claimed that were assented to by her, as being correct; it did not sufficiently appear from the bill that she was entitled to a large amount of that Mrs. Vanderheyden had charged or inproperty from the estate of John J. Bradt, tended to charge, by way of appointment in deceased; and that the complainants knowing equity, her sole and separate property with that fact, and that she would thus have abun- the payment complainants demand; and that dant means to pay any debt she might con- the discharge of Vanderheyden in bankruptcy tract, credited her the amount above men- was a bar to this suit. tioned. That the complainants were indebted to Thaddeus B. Bigelow, as executor of John J. Bradt's estate, nearly $3000, and that during the accruing of the account against her, and before her marriage to Vanderheyden, she proposed to the complainants to have her indebtedness to them applied in payment of their debt to Bigelow, and that both they and Bigelow assented to such an arrangement, and that complainants had delayed the collection of their demand under the expectation that such an arrangement would be completed, both defendants after their intermarriage having frequently expressed a willingness that such application of the debt should be made, till February, 1843, when they refused.

That on the 25th November, 1842, defendant, Levinus Vanderheyden, made application for a discharge in bankruptcy, and obtained such discharge on the 17th April, 1843.

George Gould and H. L. Hayner, for defendants.

H. P. Hunt and D. Buel, Jr., for complainants.

BY THE VICE CHANCELLOR.-The first inquiry in this case is, whether the facts stated in the bill of complaint, and admitted by the demurred, entitle the complainants to the relief asked for, independent of the question arising on the husband's discharge in bankruptcy, which I shall afterwards consider.

It has long been a well-settled rule in equity, that a feme covert, in regard to her separate property, is considered a feme sole and may by her contracts, bind such separate estate-Dowling v. Maguire, 1 Lloyd and Gould's Rep. 19; Cater v. Everligh, 1 Desau. Rep. 19; Montgomery v. English, 1 That in May, 1843, complainants com- M'Cord, Ch. Rep. 267; 17 John Rep. 548; menced a suit on their demand in the Su-7 Paige 14, 112-though she is incapable, preme Court of this state against both the even in equity, of binding herself persondefendants, when Levinus Vanderheyden ally. pleaded his discharge in bankruptcy, and under the advice of counsel, that it was a bar to a suit at law, the complainants discontinued their suit.

But there has been much difference of opinion as to the character of the contract necessary to bind her separate property. One of the leading cases on this subject was that The bill further charged that before the ac- of Hulme v. Tenant, 1 Brown Ch. R. 15, cruing of the complainants' account defend- where it was held by Lord Thurlow that a ant, Leuchy, was the owner of thirty-five bond of a feme covert executed jointly with shares of stock in the Merchants' and Me- her husband, should bind her separate estate. chanics' Bank of Troy, worth $2,100; and The correctness of this decision was several that she still owned the same, it having been, times called in question by Lord Eldon, and in July, 1812. by consent of her husband, particularly in Nantes v. Currock, 9 Vesey placed to her sole and separate use; and that 188, and Jones v. Harris, 9 Vesey 497; yet she also holds a considerable amount of other it seems fully to be sustained by the later debank stock, described in the bill, the same cisions. In Bullpin v. Clarke, 17 Vesey

In Chancery.-Mallory and Hunter v. Vanderheyden and wife.

This

365, a married woman had borrowed money, fully carry out the acknowledged doctrine, and having promised verbally to repay it out that in regard to her separate property, a feme of her separate property, she gave her prom- covert is to be a feme sole; for the property issory note. The Court of Chancery decreed of a feme sole would be equally liable to all payment of the debt out of the rents and her general creditors. In addition to the case profits of estates settled to her separate use. I have referred to, the courts of this state, in In the still later case of Murray v. Barlee, 4 other decisions, have recognized the rule as Simons 82. The Vice Chancellor, Sir Lan- fully as it has been laid down by the English celot Shadwell, decreed payment of a debt court of chancery. 7 Paige 14; 3 John Č. R. out of the separate property of a feme covert, 77; 17 John Rep.. 548, 580; Gardner v. where no bond or note had been given, but Gardner, 7 Paige 112; 6 Paige 366; Shirley where she had promised by letter to pay the v. Shirley, 9 Paige 363. In this case, howdebt, or said what was considered equivalent ever, it is unnecessary to look for a broader to a promise. The same case came before rule, for the intention to charge her separate Lord Chancellor Brougham, on appeal, and property appears clearly from the facts set was affirmed by him in 1834. 3 Mylne forth. From the admitted allegations in the & Keane 209. The opinion of Chancellor bill, it is shewn that the goods were sold and Brougham goes the full length of saying that money advanced to the wife dum sola upon the wife's separate property is bound, whether the credit of her individual property, and that the promise is in writing or verbal. It is it was agreed by her that the debt should be conceded in all these cases that the bond, paid by applying it on notes the complainants note, or promise, are void and inoperative at owed the estate of her former husband. law, but it is held that in equity they shall was equivalent to a direct and express agreebe considered an appointment of her sole and ment to pay out of her individual property, separate property. The power of appoint- and was repeated and assented to at different ment is incident to the power of enjoyment times after the marriage, by both defendants, of her separate property. There must ap- who continued to evince a desire to have such pear to be an intention to charge her separate an engagement made till February, 1843. estate, otherwise the debt will not affect it, 2 But it is urged by the defendant's counsel, Story Eq. 628, and all the decisions proceed that the debt, not having been contracted duupon the ground that having contracted the ring coverture, the presumption that she indebt during coverture, the presumption is that tended to appropriate her sole and separate she intended to charge her separate estate. property does not apply. I think this objecIt is said by Judge Story, 2 Eq. Juris. 773, tion not available; because, whatever the prethat the decisions have not yet gone the en-sumption might be, this case does not rest on tire length of holding that all her general pe- presumption. The intention to pay out of her cuniary engagements shall be paid out of her separate property is made to appear affirmaseparate property, without some particular promise or engagement, operating as an appointment, but he admits the tendency of the more recent decisions is certainly in that direction. 2 Story Eq. 628; 18 Vesey 258, Anonymous. But it seems to me the court for the correction of errors in this state, in Gardner v. Gardner, 22 Wend. 528, have gone that length. Mr. Justice Cowen, in giving the leading opinion in that case, says: "I think the better opinion is, that separate debts contracted by her expressly on her own account, shall in all cases be considered an appointment or appropriation for the benefit of the creditor, as to so much of her separate estate as is sufficient to pay the debt, and she be not disabled to charge it by the terms of the donation. See also Crosby v. Church, 3 Beav. Rep. 489. And I think such should be the rule, and that nothing short of it will

tively, both before and after marriage, by the agreements to which I have already adverted." Nothing on that subject is left to inference or presumption. The case of Biscoe v. Kennedy, decided by the master of the rolls, &c., reported in the note to Hulme v. Tenant, 1 Brown, Ch. R. 17, is in point. There the debt of the wife accrued before coverture, and after marriage the wife conveyed her property for her separate use; on a bill filed by the creditor against husband and wife, and after proceedings to outlawry against the husband, the court decreed payment of the debt out of the separate estate of the wife.

The next question to be considered, is whether the demand of the complainant was extinguished by the discharge, in bankruptcy, of the husband?

The only adjudged case bearing on this point, is that of Miles v. Williams, 1 Peere

In Chancery.-Mallory and Hunter v. Vanderheyden and wife.

Williams 257. That was a case in the King's is discharged. All his liability is forever can

In this case, the sole object is to collect from

Bench. Debt was brought against 'aron and celled. The right to collect from his property feme on a bond entered into by the feme dum no longer exists. The debt is fully discharged sola. The defendants pleaded the discharge and extinguished as to him, as much so as if of the husband in bankruptcy, to which the he had never become liable by marriage. It plaintiff demurred. After several arguments, can have no greater effect, for it was not his it was held that the discharge was a bar to the debt. The credit was not given to him—it action, although judgment was given for the was given to the wife dum sola-the creditor plaintiff on the demurrer, on the ground that might have refused to give credit to him, and the plea did not conclude to the country. The no act of his or hers could bind the complaincorrectness of this decision, in holding the dis- ants, so as to transfer the indebtedness from charge a bar to an action at law, has never her to him. By marriage he did not become been doubted. In the case now before me, the debtor. He only assumed a contingent before bill filed, a suit at law was brought by liability, which might be enforced and might complainants against Vanderheyden and wife, not, and until paid it remained her debt. to which they pleaded the discharge of the Reeves, in his treatise on domestic relations, husband, when the complainants, acquiescing says, page 68-The debt of a feme sole is in the rule, discontinued their suit. In Miles not, on her marriage, considered as transferred v. Williams, Ch. J. Parker remarks-"3rdly, to her husband. If it were, he or his execuas to the wife. It will be a discharge as to tor would be liable after the coverture was at her, at least a temporary one, viz., during the an end. In that case, it would not, on his husband's life: but though it be not necessary death, survive against the wife: neither would to give an opinion upon that, yet I think it there be any propriety in joining the wife will amount to a perfect release, and the wife with the husband in a suit to collect the debt will be discharged forever." This intimation of the wife, which, however, must be done." is merely a dictum of the Ch. J., the question being in no way involved in the case then the separate estate of the wife, and the husbefore the court, and unless, on examination, it is founded on principle, it cannot be regarded as authority. Let us see whether it is not in conflict with the well settled rules which grow out of the relation of husband and wife. The husband is liable for the debts of the wife, Nor does it affect this question, that the if collected during coverture. When the co- property Vanderheyden received by his wife verture is at an end, his liability ceases. In went to his assignee in bankruptcy, or that case of her death, he is no longer liable, and his assignee was entitled to collect debts due in case of his death, the debt survives against to her, for the reason I have before mentioned, the wife, and may be collected of her separate that his liability in no respect depended on property, if she has any; and although she the property he received or was entitled to. may have brought to her husband thousands If he had died before discharge, the same proof dollars in possession, and may have received perty which went to his assignee, would have nothing from her husband's estate at his death, gone to his personal representatives; but the and may have no separate property, still the complainants would have had no claim on his debt survives against her on the death of her estate. Much less did her indebtedness dehusband, and she is personally liable. The pend on the property he received. The quesestate of the husband would not in such a tion here is whether her liability, or that of case be liable. His liability does not depend her separate property, is extinguished. His upon the amount he receives from his wife. right to receive from the executor of Bradt's The rule of law that makes him liable during estate, the property belonging to her, had coverture for her debts contracted dum sola, passed to his assignee in bankruptcy, and if is in no way connected with that which enti- the assignee filed a bill to reduce it to possestles him to his wife's property at marriage. sion, he could be compelled to make a suitable Each are distinct and independent principles provision for the wife and infant children. of law. By the discharge in bankruptcy the Van Epps v. Van Deusen, 4 Paige 64; Pierce debt is released so far as he is concerned; that v. Thanely, 2 Sim. Rep. 167; Honner v. is, his liability to be sued at law, and to be Morton, 3 Russ. 65, 90; Smith v. Kane, 2 compelled to pay the debt during coverture, Paige 303. The wife and children could

band is only a formal party. Where a suit is brought at law, the sole object is to collect from the husband, and the wife is but the formal party. The latter is in fact a suit against the husband, and the former against the wife.

U. S. District Court.-The United States v. Gates.

therefore be provided for, independent of the stocks conveyed to her sole separate use.

creditor. Even in the case of Miles v. Williams, the chief justice remarked—“ A case The reason urged that the creditors had may possibly be put, where a woman being the right to prove their debt and receive their in debt may make over all her effects in trust, dividend in bankruptcy, adds nothing to the and then marry a bankrupt, and by that, disweight of the defendant's argument. As well charge all her debts, and yet preserve her esmight it be urged that in other cases, because tate; but that would be a fraudulent conveythe creditors had the right to collect from the ance as against creditors, quoad so much husband, they would be compelled to do so, of the estate as would satisfy their debts, and and might not wait to claim it of the wife for that they might have remedy." Even in alone after the death of the husband. In both that view of the case, the complainants would cases it is optional with the creditor, whether be entitled to the relief they ask for, viz., sathe will avail himself of the remedy against isfaction of the debt out of her separate proher husband or his assignee, but in neither perty, for the complainants could not be case, I apprehend, is the original indebtedness compelled to resort to their dividend in bankcancelled by neglect so to do. His death ruptcy, when the property which ought to would have cancelled his liability and that of pay the debt had been conveyed to her for his estate, and I think his discharge could her sole and separate use, and did not pass to have no greater effect. the assignee in bankruptcy.

The doctrine contained in the dictum of Ch. J. Parker is reiterated in "Reeves' Domestic Relations," page 71, on the authority of that decision, but it is not examined by the author, and acquires no additional weight by this circumstance. In effect it is more like a quotation than an endorsement.

The doctrine contended for by the defendant is not only at war with well settled rules,

An order must therefore be entered, overruling the demurrer and directing the defendants to put in their answer and pay the costs within twenty days, or that the bill be taken as confessed.

H. S. District Court.

Before the Honorable SAMUEL R. BETTS,
District Judge.

but it would be exceedingly unjust and in- SOUTHERN DISTRICT OF NEW YORK. equitable in practice. It would enable the husband to settle upon his wife, for her sole use, such of the property formerly belonging to her as he pleased, and then by his own act extinguish her debts by procuring a discharge in bankruptcy-thus cancelling demands without payment and without the consent ACTION FOR PENALTY CANNOT BE SUSTAINED

of the creditor.

It is provided, 2 Rev. Statutes, page 75, 1st ed., 29, 30, that where the wife dies leaving property, the husband is solely entitled to administration, and is entitled to the surplus after paying her debts,—and such was the rule at common law. In this case, therefore, on the death of Mrs. Vanderheyden, the husband surviving would be entitled to her separate property, and without having first paid her debts, if those debts were extinguished by his discharge. The law cannot be chargeable with such injustice. On the whole, I cannot believe that the discharge of Vanderheyden cancelled the debts. The claim still existed, and Mrs. V. might be sued at law after the death of her husband; or proceedings in equity might sooner be instituted against her to reach her separate estate. Any other view of the case would countenance an act which operates as a gross fraud upon the

A

THE UNITED STATES

v.

JACOB GATES.

AFTER CONVICTION AND PUNISHMENT FOR

SMUGGLING.

person who has been convicted and punished by fine and imprisonment for smuggling goods on shore in violation of the provisions of the act of 30th August, 1842, § 19, is not liable to an action to recover the penalty imposed by the statute of 2nd March, 1799, § 50, for landing them without a permit the act complained of in the two cases being the same.

THIS was an action under the fifth section of the act of congress of March 2nd, 1799, which provides that no goods brought in any vessel from any foreign place may be unladen within the United States but between the rising and the setting of the sun, except by special license of the collector, &c.: nor at any time without a permit; and the landing thereof under other circumstances is prohibited under a penalty of $400 against the person in command of the vessel at the time, and

U. S. District Court.-The United States v. Gates.

every other person knowingly concerned or aiding therein, and certain disabilities therein mentioned against such persons.

The United States sued for the above penalty, alleging the landing of the goods in question without a permit.

The ancient feudal doctrine of the merger of a private wrong in a felony, is not applicable to the civil polity of this country, and has never been adopted in our system of jurisprudence. Plummer v. Webb et al, Ware R. 75.

The defendant pleaded specially, that since But if this doctrine were recognized by our the landing of said goods he had been indicted courts, it could not affect this case, as the law by the United States in the Circuit Court of of 1799, was devised for the protection of a this district, under the act of 1842, for smug-public right, and the infringement of its progling and clandestinely introducing said goods visions is therefore a public wrong. Nor is into the United States without paying or the violation of the law of 1812 made felony ; accounting for the duties due thereon accord- it is, on the contrary, expressly declared to be ing to law, and that he pleaded guilty to such a misdemeanor. indictment, and was by said court sentenced to pay a fine of two thousand dollars and be imprisoned thirty days-that he paid such fine and bore such imprisonment; and that the acts for which he was so indicted and committed and sentenced are the same acts for which this action is brought to recover the above-named penalty.

To this plea the United States demurred the defendant joined in demurrer.

The cause came on for argument before the honorable S. R. Betts, United States district judge, on the 28th day of October, 1845.

The Hon. Benjamin F. Butler, attorney for the United States, with whom was F. A. Marbury, relied on the following points:

I. The facts set forth in the second plea, and which are admitted by the demurrer, constitute no valid bar to the action of the plaintiffs.

1. The unlading and delivery of goods without a permit from the collector, ($50 act Mar. 2, 1799,) is an offence entirely distinct from the fraudulent introduction of goods into the United States, (§ 19 act Aug. 30, 1842,) for which the defendant has been indicted and punished as set forth in his plea. The former offence may be committed in respect to free goods. the latter only concerns such as are dutiable. A party might unlawfully unlade goods, and thus incur the penalties of the law of 1799 without that fraudulent intent which would be necessary to conviction under the law of 1842. The punishment attending the violation of the former, differs from that prescribed in the latter.

2. The two statutes are at most only cumulative. The former is not repealed by the latter-neither being incompatible with the existence and operation of the other.

II. There is no merger.

Charles A. Peabody, contra.--Though there are no cases in point which I have been able to find, yet, upon general principles, the defendant is not liable to this second action for another offence in the same act for which he has already been punished at the suit of the same party (the United States). The rights of the U. States against the defendant have been satisfied, and his liability discharged by a compliance with the former sentence of the court. In a suit for money, if a judgment were obtained for the same cause and paid, the fact pleaded would be a good bar to a subsequent action for the same cause, however the action (as in this case) might differ in form. In criminal law the maxim is familiar, that "no man shall be twice put in jeopardy for the same offence."

Moreover, it cannot be supposed to have been the intention of congress, that the two acts should be enforced in the same case-for one and the same offence. They could hardly have intended to cumulate penal consequences in this manner. On the contrary,

I. The statutes were intended for different cases, and the act of 1799 was intended to apply to those cases in which the landing was only in violation of that statute, but without any fraud or fraudulent intent upon the revenue of the United States. Whenever the fraud or fraudulent intent made a part of the offence, the act of 1842 applied, but the act of 1799 did not; and on the other hand, when the landing was without such fraudulent intent upon the revenue, this act (of 1799) was violated, and the remedy provided by it was the legitimate remedy.

The counsel for defence admitted the position of the plaintiff, that the latter did not repeal the former statute; and also, that the doctrine of the merger of the civil remedy in the felony was not a part of the common law