
    ELIZABETH KING, Plaintiff and Respondent, v. JAMES O’BRIEN and others, Defendants and Appellants.
    l. Married women.—Husband and wife.—Personal property.—A. Effects of the acts of 1848, 1849, 1860, 1863.
    1. Where the marriage takes place in England, and the parties subsequently come to this State, the wife having the possession of and bringing with her certain money, p^rt of which belonged to her before marriage, and the balance of which she acquired in England by her own labor subsequent to the marriage; the title to and property in said money is governed and to be determined by the common law of England, in.the absence of proof of any statutory enactment of that country on the subject; and the statutory enactments of this State have no bearing on the question.
    3. Being so determined, the money is the property of the husband.
    II. Burden of proof.
    
    1. If in said case the wife claims the money as hers, it devolves on her to show a change of property from her husband to her.
    
      a. The property in the money so brought in this State is not, by mere force of the married women’s acts of this State, transferred to the wife.
    
      b. Gift or transfer, presumption of. When both parties supposed that the money belonged to the wife by law; either by a transfer effected by the mere force of our State law, or by force of some statutory provision of the English law, a presumption of a gift or transfer will not arise from the husband’s acquiescence in the wife’s possession, his asking her a loan of a portion of the money, his payment back of a part and promise to repay the whole.
    1. No opinion is intended to be given as to whether such acquiescence, loan, payment and promise would in any event afford a presumption of a gift or transfer.
    m. Married, women carrying on business with capital furnished hy husband. Hffect of.
    
    1. In such case the business, its stock, accretions, profits and new stock purchased, will, as to the creditors of the husband, be regarded in law as belonging to him, except as to such new stock only which his wife can identify and prove as having been bought on her credit and not paid for, or bought with her money with the intent that the property therein should vest in her.
    Before Monell, Jones and Spencer, JJ.
    
      Decided February 4th, 1871.
    This is an action of trespass, on a case brought to recover damages for an alleged wrongful and forcible taking of certain goods and chattels, forming the stock of a store at Ho. 391 Canal-street, known as the Peoples’ Tea and Grocery Store, which goods and chattels the plaintiff claims to have been her property.
    The defendants justify under an attachment issued against the property of Charles A. King, out of the supreme court, in an action pending therein between the defendant Henderson and the said Charles A. King.
    On the trial it appeared that Charles A. King was the plaintiff’s husband ; that they were married in 1847 in London, England ; that they came to this county about five years ago ; and the plaintiff brought with her the best part of £2,000.
    The evidence as to when this money was accumulated is, in substance, this: The plaintiff, at the time of her marriage, had laces, dresses, jewelry, furniture, linen, and £600 or £700 ; she had carried on the millinery business before her marriage; she; with her husband, came to this country in 1852, and remained here seven weeks; they did nothing here but visit their friends ; at the end of the seven weeks she returned to England, and her husband went to Australia ; on her arrival in England, she went to her father’s in Liecestershire, and did business there all the time her husband was away, making money for herself in the millinery business ; her husband returned to England in two years; they both then remained in England for three years ; then he went to Spain, and three months afterward she followed him; they both remained in Spain from five to seven years ; then they returned to England, and remained there hot quite a year, when he went to Buenos Ayres ; she continued to remain in England about a year longer, and then joined her husband in Buenos Ayres, where they both remained about ten months, and then came to this country about five years ago.
    The testimony as to the manner in which the store in question was started is, in substance : The plaintiff had previously advanced her husband £3,500, to establish him in business on his own account. Of this he had repaid her, at different times, various sums, amounting to about $2,000, and told her he would pay her back all as he got along in business. She after-wards lent him $3,000 or $3,500, concerning which she thus testifies: “I did not let him have any more money only to go in business for myself; that was in « July before he went away. I then lent him $3,000 or $3,500. I had that money in my own possession; I did not have it in bank. First saw the store in Canal-street when it was opened in August. I saw it 'as soon as it was opened. It was full of goods. He took me to look at it, to see whether it suited me. -There was employed two clerks there, Mr. Wysham and a young boy. I had the lease of the store in my possession, and handed it with my other papers to Mr. Teaman when he undertook-the case.” It appeared that the assignment of the Canal-street store was taken in the wife’s name.
    The foregoing is the substance of all the evidence touching the mode and place of acquisition of the £2,000 brought to this country, the mode and manner in which the money was treated after it was brought here, - and the use and disposition made of it here.
    It further appeared that the Canal-street store was purchased about August 7,-1868 ; that the goods were attached on November 4, 1868, the husband having absconded.
    It also appeared that Mr. King carried on business in his own name in Greenwich-street. That business was dealing in tea, coffee and spices. The store in Canal-street was furnished with tea, coffee and spices from the Greenwich-street store.
    After the plaintiff had rested, the defendants moved to dismiss the complaint, on the following grounds:
    1. That the testimony shows that the property in question was not the property of the plaintiff.
    2. That the testimony shows that said property was the property of Charles A. King.
    3. That the money which the plaintiff claims to have advanced to her husband was the money of the husband at all times, and not her own ; the parties having been married in England all the personal property the plaintiff possessed at the time of her marriage, and all that she acquired during coverture, vested ab- „ solutely in her husband, and could not revest in her.
    4. That the plaintiff had failed to establish a cause of action.
    Which motion was denied, and an exception taken.
    
      Addison Sandford, Esq., of counsel for respondent, submitted the following points:—I. The laws of New York govern this case. The parties in New York treated the plaintiff’s money as-hers. The husband acquiesced in it, and acknowledged his obligations to his wife. This is sanctioned by the law of New York, which is not common law. (Act of 1860; 27 AT. Y., 278).' |
    II. The two thousand pounds may be treated as a ‘ gift from King to plaintiff. The two thousand dollars was a gift, and delivered. This is sustained by these authorities (Penfield v. Thayer, 2 E. D. Smith, 305; Gage n. Duchy, 28 Barb., 622; Shirley v. Shirley, 9 
      Paige, 363; Denning v. Williams, 26 Conn., 226 ; Borst v. Spelman, 4 JV. 7. [4 Comst.], 284; Smith ». Maine, 25 Barb., 33).
    
      J. F. Malcolm, Esq., of counsel for appellant, Henderson.
    
      A. J. Vanderpoel, of counsel for appellant, O’Brien, made the following points:—
    I. By the common law of England (in the language of Mr. Reeve), the husband, by marriage, acquires an absolute title to all the personal property of the wife, which she had in possession at the time of the marriage; such as money, goods, or chattels personal of any kind. These, by the marriage, become his property as completely as the property which he purchases with his money; and such property can never again belong to the wife, upon the happening of any event, unless it be given to her by his .will; and in case of the death of the husband, this property does not return to the wife, but vests in his executors (Reeves’ Dom. Rel., 49 ; 2 Kent Com., 143 ; Hyde v. Stone, 9 Cow., 230.
    
    II. So complete was this" investiture of title in the husband, that if the parties had been residents of and married within this State, the acts of 1848 and 1849 would not have defeated his vested rights (Westervelt v. Gregg, 12 N. Y. [2 Kern.], 202; Cropsey v. McKinney, 30 Barb., 48; Tilexan v. Wilson, 43 Maine, 186).
    HI. By the common law also, the husband was entitled to the accretions, and the results of her industry and economy were also the property of the husband (Freeman v. Orser, 5 Duer, 476).
    IV. The husband cannot make any disposition of Ms property, to the prejudice of his creditors, either in favor of Ms wife or of any other person.
    V. Under the evidence Charles A. King never owed Ms wife a dollar, either legally or equitably. All the money he received from her was his before she handed it to him.
    VI. The statutes of Hew York, passed in 1848, and amended in subsequent years, did not apply to these parties. The common law controlled the rights and property relations of the husband and wife.
    VII. The fact that the husband and wife may have become residents in this State, would not restore to the wife the property which belonged to the husband, by operation of the common law, before they became such residents.
    VIII. The property having so vested, we assert, could ' not, as against his creditors, be revested in his wife, because husband and wife may have chosen to treat it as her sole and separate estate.
    IX. A debtor cannot deprive his creditors of his property, by treating it as belonging to a third person, whether it be son, daughter, father, friend or wife. The law says it was his property.
    
    The jury rendered a verdict for the plaintiff and assessed the damages at nine hundred and forty-two dollars and twenty-five cents. Defendants moved for a new trial on the minutes, which motion was denied.
    Afterwards, judgment was entered on the verdict in conformity therewith.
    From this judgment and the order denying the motion for a new trial, the defendants appealed.
   By the Court.—Jones, J.

The motion to dismiss the complaint should have been granted.

The evidence established that the money which was received from the wife by the husband and which went to the purchase of the stock and fixtures of the store in question, was acquired by the wife in England when the parties intermarried. According to the common law (which is the only law that we can judicially notice as obtaining in England), this money was the property of the husband. If the property in it had not changed into the wife prior to the delivery of it to him, it was at the time he received' it, still his. It would, from this, necessarily follow, that the stock and fixtures purchased by him with it, belonged to him. The fact that the wife assumed to make him the agent for its purchase, and the subsequent carrying on of the business and that he assumed to act as such, does not change the property in the chattels ; they still remain his, and the profits derived from their sale are his.

It is true, that under our laws a married woman may carry on a separate business on her own behalf,

' and be entitled to all the goods, property and profits acquired therein, as of her own sole and separate estate, that she employ agents in the carrying on of such business, and may even employ her husband as agent; but if she undertakes to carry on a business of retailing goods, the whole stock with which she commences business being the property of her husband, employing her husband as agent, the law will as to creditors of the husband regard the business as his, and the profits, accretions and new stock purchased as belonging to him, except perhaps as to such new stock which the wife can identify and prove as having been bought on her credit and not paid for, or with her money with the intent that the property therein should be hers.

If, then, the money which purchased the stock and fixtures of the store in Canal-street, was the husband’s, the business there carried on was, as to his creditors, his ; and it not appearing that a single article was purchased on her credit or with her money, the whole stock was subject to levy and sale under execution issued at the suit of the husband’s creditors.

The question then is whether the property in the money was changed into the wife prior to its delivery by her to him.

It devolved on the plaintiff to show such change of property. All that she has shown on that subject is that she had the money in her possession when she came to this country, that she retained it in her own possession ever since until she delivered it to her husband. It is not shown that the husband ever did an act, or said a word indicating an intention to part with his rights of property.

It was urged, however, that a transfer of the property might be presumed from the husband’s acquiescence in the wife’s possession, his asking her for a loan of a portion of the money, his payment back of a part, and promise to repay the whole.

If it had appeared that he had ever had possession ■ of the money, or perhaps even that he had made a claim of ownership to it, a gift might perhaps be inferred from this acquiescence and those acts.

Nothing of this kind, however, appears. The clear-inference from the evidence is that both parties sup- , posed that the property belonged to the wife by law ; either by a transfer effected by the mere force of our State law, by means of the parties having been domiciled in this State, or by force of some statutory provision of the English law. This excludes any presumption of a gift or transfer by the husband arising from any act or conduct of the parties.

If they supposed that under our State laws the property by the mere force thereof was transferred to the wife, they were clearly in error ; whether the supposition that the property belonged to the wife by force of some statutory provision in the English law is correct or not, we are not at liberty to say, for no statutory ' provision of that country bearing on the subject was proved on the trial.

It follows that no change of property in the money from the husband to the wife was shown, and in consequence for the reasons above set forth the property attached and sold under the judgment belonged to the husband and was liable to be applied to his debts.

Judgment reversed, and new trial ordered with costs to appellants, to abide the event.  