
    ROBINSON against RIVERS.
    
      New York Common Pleas; Special Term,
    
    
      Sept., 1870.
    Arrest.—Married Womah.—Separate Estate.— Requisites of Affidavit.
    The right of a married woman to take advantage of her coverture as a ground of discharge from a warrant of arrest issued against her under the non-imprisonment act, is not waived by her controverting generally the facts, on the return of the warrant, and giving the recognizance and bond. Such objection does not go to the jurisdiction, nor to the form or sufficiency of the moving papers, but may be raised at any time during the pendency of the proceedings. When the objection is raised, if the fact of coverture did not appear in the application for the warrant, and is contested, the court may in its discretion allow the examination of the woman to proceed, leaving her to her plea in the course of the proceedings.
    Notwithstanding the married woman’s acts of 1848, 1849, 1860 and 1863 (4 Edm. Stat. at L., 513-517), a married woman, except in the cases provided for by these statutes, remains, as at common law, under disability to make contracts; and a debt for wearing apparel purchased by one who had no separate property or occupation within the statute, is not one for which she can be held responsible.
    Her coverture may be inquired into, and, if established, be made the ground of a motion to discharge from an arrest under the non-imprisonment act. She is not restricted to setting it up by answer in the action, and awaiting the trial of the issue.
    An arrest under the non-imprisonment act is a proceeding collateral to the action, and, on a motion for a discharge, the court may pass upon questions which go to the foundation of the whole proceeding.
    Arrest under the non-imprisonment act.
    This action was brought by Azema Robinson against Bella Rivers, on contract, for a bill for making dresses, amounting to one hundred and thirty-four dollars and fifty cents, as appears by the summons (no complaint having been served). íhe summons was served August 31, 1870.
    On the same day, Judge Joseph F. Balt issued a warrant against the defendant under the non-imprisonment act (a Stilwell warrant) for the arrest of defendant, and she was arrested, and, being taken before the judge, gave the necessary bonds for appearance .and examination, and the hearing was adjourned to September 3, 1870, at eleven o’clock, A. M.
    At the adjourned day the defendant appeared with her counsel, who read an affidavit of defendant, setting forth that she was married on March 3, 1868, stating further, to whom, by whom the ceremony was performed, and at what place, and that she was still married to and living with her husband, and supported by him, and that she had no separate estate, and no business of her own.
    
      C. F. Wetmore, for the defendant,
    on this state of facts, moved to vacate the warrant of arrest and to discharge the prisoner, on the grounds :
    1. That no female can be arrested on any process in any civil action founded on contract (2 Rev. Stat., 446).
    3. That the general words of the Code, permitting the arrest of a female for a willful injury to person, character, or property, have not altered the rule of the common law which exempts a married woman from arrest in all cases whatever.
    3. The married woman’s acts of 1848, 1849," 1860, and 1863, do not remove the legal incapacity of married women to contract debts, except in the cases specified, of contracts relative to their own business or their separate property.
    
      
      Christopher Fine, for the plaintiff,
    urged the pre-. liminary objections:
    1. That, having appeared and given bonds, she had waived her right to move for her discharge on the ground of want of jurisdiction.
    2. That having appeared and controverted the allegations in the affidavit upon which the warrant was issued, the examination must proceed ; and that the motion to dismiss must be made after the examination was had, and not before.
    3. That a motion to discharge the warrant could not be made, except upon the final hearing.
    
      C. F. Wetmore, for the defendant,
    replied, as to first objection:
    By section 204 of the Code, a defendant arrested may, at any time before judgment, apply, on motion, to vacate the order of arrest. Section 324 of the Code says, such motion can be made ex-parte to the judge who granted it. This can be done when the defendant has given and perfected bail (12 Abb. Pr., 476; 13 Id., 187). Civing bail is not a waiver of the defendant’s right to object to the legality of the arrest (8 How. Pr., 353; 12 Id., 197). "Want of jurisdiction can be taken advantage of at any stage of the proceedings, and it is never too late to do so. A judgment was allowed to be impeached fourteen years after its entry, for want of jurisdiction (12 N. Y. [2 Kern.], 156, 164; 16 Abb. Pr., 353) Want of jurisdiction should be taken advantage of by motion (Code, 204, 385; 9 Wend., 462; 10 Id., 602; Grah. Pr., 465, 479, and cases cited).
    As to the question of conferring jurisdiction by giving bonds for appearance, or by any steps on the part of the defendant. (1.) Consent cannot confer jurisdiction, nor render the judgment of a tribunal effective in a matter over which it has by law no cognizance (3 N. Y. [3 Comst.], 9; Id., 132). (2.) When the court has no jurisdiction of the principal question, it has none of its consequences or incidents (9 Johns., 239; 1 Hill, 130; Id., 343; 31 How. Pr., 128; 31 Barb., 661; Id., 242; 22 How. Pr., 361; 23 Id., 456). This last authority is very important, giving the distinction between want of jurisdiction and an irregularity. (3.) Consent cannot confer.jurisdiction upon any court where jurisdiction is not conferred by law (1 Hill, 130; 12 N. Y. [2 Kern.], 575; 6 Abb. Pr., 162; 1 Hoffm., 1; 34 Barb., 95; 21 How. Pr., 286; 8 Abb. Pr., 269). (4.) Courts cannot entertain a suit of the subject matter of which they have no jurisdiction, although the defendant has stipulated, for a consideration, not to raise that objection (3 Caines, 129; 7 Pet., 276; 3 N. Y. [3 Comst.], 9). Judge Cower says, in 21 Wend., 542: “A party may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.” Jurisdiction can only be acquired in the mode prescribed by the statute (13 Wend., 43, 293; 14 Id., 380; 19 Id., 21, 109). (5.) Confessing judgment does not cure the want of jurisdiction (3 Caines, 129).
    As to the arrest of females. (1.) It is provided by the statute as follows : “Ho female shall be imprisoned on any process in any civil action founded upon contract ” (2 Rev. Stat., 446, § 9). The statute is in full force, not repealed. This is process. In 1848 the section was: “But no female shall be arrested in any action arising on contract, or in any other action, except for a willful injury to person, character or property.” (3.) How, by the Code (§ 179, subd. 5), no female can be arrested except for a willful injury to person, character or property. (4.) By the common law a married woman is exempted from arrest in all cases whatever (1 Duer, 613; 8 How. Pr., 134; 16 Abb. Pr., 353; 42 Barb., 453; 34 How. Pr., 481). (5.) An application for an order of arrest cannot be granted if it appear, or is conceded, that the defendant proceeded against is a married woman 
      (Grah. Pr., 127; 2 Hilt., 179, 481; 25 How. Pr., 463). In this case it was carefully concealed from the judge who granted the warrant, and was made to appear by affidavit of defendant. (6.) In case of concealing the fact of coverture, the judge must discharge as soon as the fact is brought to his knowledge. (7.) A female is exempted from arrest, although she fraudulently contracted the debt on which the action is brought (4 Bosw., 684). (8.) Although a female may be arrested for a willful injury to person, character, or property, yet this does not apply to a married woman, who is in all cases exempt from arrest in a civil action (8 How. Pr., 134; 1 Duer, 613; 25 How. Pr., 463; 16 Abb. Pr., 353, and notes). Except that after judgment in an action for a tort committed by her, .she may be charged in execution with her husband (2 Hilt., 179). (9.) No female, whether married or single, can be arrested, except by provision 179,—i. e., for a willful injury to person, character, or property (34 How. Pr., 481). Not with regard to her own separate estate. And she can not be charged in execution on a ca. sa. unless for the same causes.
    The defendant, a married woman, was indebted to the plaintiff. (1.) To obtain a warrant against a person under the non-imprisonment act, there must be. satisfactory proof that there is a debt or demand due to the plaintiff from the defendant amounting to more than fifty dollars. (2.) The defendant, being a married woman, living with, and being supported by, her husband, does not owe anything to the plaintiff. It is the husband who is liable. (3.) The married woman’s acts of -1848, 1849, and 1860, do not remove the legal incapacity of married women to contract debts, except in the cases specified of contracts relative to their business or their separate property (18 N. Y., 265; 22 Id., 452; 47 Barb., 155; 1 Robt., 109). (4.) The statutes of this State do not authorize an action against a married woman, to recover for articles sold to her when she has not engaged in carrying on any trade or business, and has no separate estate (3 Abb. Pr. N. S., 188; 21 How. Pr., 309; 14 Abb. Pr., 394). (5.) If a husband does not himself provide for the wife’s support, he is legally liable for necessaries furnished to her by tradesmen, even though against his orders (2 Smith L. Cas., 440; 41 Barb., 558). (6.) The laws of 1860 and 1862 have not enabled a woman to give notes, and persons taking such notes, even bona fide and for value, cannot recover upon them against her (18 Abb. Pr., 223; 28 How. Pr., 155). (7.) The acts of 1848, 1849, 1860, and 1862, do not alter the liabilities of the wife in the least, except as to her separate estate. (8.) The acts of 1848 and 1849 are liberally construed in favor of the married woman (17 How. Pr., 413). (9.) These acts have not removed the common law disability of married women to make valid executory contracts, unless such contracts are for the disposition of them separate property. It is well settled that a married woman is not personally liable for the payment of any debt she may contract during coverture (21 Barb., 546-551; 12 How. Pr., 333; 16 Id., 93, 158; 4 Duer, 96; 1 Hilt., 476).
    
      Fine & Qallaher, for the plaintiff.
   Joseph F. Daly, J.

Azema Bobinson hating com> menced an action against Bella Bivers in this court to recover one hundred and thirty-four dollars and fifty-six cents, the price of certain wearing apparel, millinery goods, &c., furnished by the plaintiff to the defendant, obtained, on August 31, 1870, a warrant under the “ Stillwell” act, for the arrest of the defendant, on the ground that she fraudulently contracted the debt respecting which the said suit was brought. Upon the return of the warrant, the defendant, Bella Bivers, con-, troverted the facts and circumstances on which the warrant issued, and gave the customary'recognizance to appear before the judge issuing the warrant, on the adjourned day, and from time to time as the matter might be adjourned, until the final decision of the matter. She also gave the usual bond not to remove, assign, or dispose of, her property until such final decision.

The matter was then adjourned by consent to September 2, 1870. On the latter day the defendant moved for her immediate discharge, upon an affidavit setting forth that at the times mentioned in the plaintiff’ s application, and ever since, she has been, and is, a married woman, the wife of one Prank Rivers. Her affidavit set forth the time and place of her said marriage with certainty, and was accompanied by a marriage certificate. The plaintiff contends that the motion is too late, and should have been made immediately upon the return of the warrant; and her right to take advantage of her coverture as a ground of discharge, is waived by her controverting generally the facts, &c., and by heir giving the recognizance and bond ; also, that coverture, even if pleaded in time, is no ground for her relief from these proceedings until regularly tried in the suit, and judgment awarded in her favor upon it.

I am clearly of opinion that defendant’s proof of coverture is offered in time. It is a plea proper in the suit itself, and proper as an incident of her defense to these proceedings. It is not an objection to jurisdiction, or to the form or sufficiency of the moving papers, and is not waived by her appearing and giving bail, and controverting the facts, &c., upon the warrant issued. It is such proof as she is at liberty to offer at any time during the pendency of the proceedings, and which the judge must receive (Vide section 7 of the act). But as nothing appears in the application for the warrant to show her coverture, as the fact itself is not conceded by the plaintiff, and as opportunity should be allowed the latter to inquire into it, it seems reasonable to permit the examination to proceed. It is discretionary with me to grant the discharge, on the ground of coverture, or to leave the defendant to her plea in the course of the proceedings (Grah. Pr., 127).

I am not entirely assured that the plea of coverture is a complete bar to this proceeding. Under the common law, which disabled a married woman from making a contract, such as is the basis of this suit, she certainly could not be arrested for fraud on her part in procuring the contract to be made. But the acts of 1860 and 1862, empowering her to carry on a separate business, and making her liable to suit in all matters having relation to her separate property, would work the greatest injustice, if, while it permitted her to make contracts in relation to her separate trade or business, and authorized suit to be maintained upon such contracts, it gave her creditors no implied right to such statutory proceedings as the “Stillwell” act permits, to punish glaring fraud on her part in making the contracts, and gross deceit and misrepresentation in obtaining the goods for which she may be sued at law.

• The facts, however, which may be established on the examination, will possibly require no such construction of those acts. The plaintiff, in the affidavit made by her to obtain this warrant, states that the defendant, Bella Rivers, represented herself to the plaintiff to be an actress by profession, with an engagement as such to act at the Olympic Theater, and in the receipt of a salary therefor, which made her abundantly able to pay for the goods she ordered of plaintiff, which goods she needed- to wear in her performances. The plaintiff states that, relying upon these representations, she delivered the goods to the defendant, but that she subsequently learned that defendant is not, and never was, an actress by profession, never had an engagement at the Olympic or any other theater in. this city, and was not to receive any salary therefrom, or to attend any rehearsal thereat, and did not intend to use. said goods for said rehearsal, or in any theatrical business or performance, and that all defendant’s aforesaid representations were fraudulently made to obtain possession of said goods, and cheat and defraud the plaintiff.

It would seem, therefore, that if the facts alleged as the ground of fraud are true,—viz: that defendant is not, and never was, an actress, has no salary, in fine, has no separate business, in the course of which she incurred the debt for the plaintiff-’s goods,—and if the fact be established that defendant is and was then a married woman, then there can be no liability on her part to pay for the wearing apparel the plaintiff sold her—her husband alone being answerable at law.

If there be no liability to sustain the suit, .there can be no ground for these proceedings, since the latter, although designed to punish the fraud, rest upon the basis of a valid debt in all cases (see Act, § 4).

The defendant’s proof of coverture would seem therefore, to be a perfect bar to these proceedings, if every particular of the allegations of the plaintiff’s affidavit to procure the warrant be fully proved ; but the defendant, by her original plea, interposed on the return of the warrant, has denied every such allegation of the plaintiff, controverting not only the allegation of fraud, but the allegation that she is not, and never was, an actress, and did not procure the goods for her professional needs.. She requires, therefore, in order to sustain her own case, an opportunity to furnish proofs which, with her proof of coverture, will relieve her from liability in the suit and in these proceedings, and that opportunity the statute affords in no way but the examination which the plaintiff demands.

In any view of the case, the latter has the right to inquire into the fact of coverture.

The examination must, therefore, proceed, and the application for defendant’s discharge upon the facts elicited will be heard at the time indicated by section 9 of the act.

Afterwards, an examination was had, and the marriage of the defendant was proved, and the plaintiff’s counsel moved for a commitment of the defendant, which was opposed by defendant’s counsel, and her discharge demanded, and the same authorities relied upon as on the previous motion.

The defendant was discharged by Chief Judge Charles P. Daly, who delivered the following opinion:

Daly, Ch. J.

The existence of a debt or demand due by the defendant to the plaintiff is one of the facts which must be shown by the affidavit of the plaintiff, or of some other person, before the warrant can issue; and, by section 7 of the act, the defendant may controvert any fact on which the warrant issued.

The defendant has, in a general way, controverted the facts and circumstances upon which the warrant was granted, and has verified her allegations, or traverse, in respect to one of these facts,—the existence of a debt or demand against her,—by her own affidavit. She avers in her affidavit that she is a married woman,. and that the debt or demand is for making, and trimming for, her necessary wearing apparel, she then being a married woman; that she has no separate estate; that she has never been engaged in any business; that she lives with, and is supported by, her husband; that he is a responsible man, and pays all her necessary demands.

This is controverting under oath, the material fact of the existence of the debt or demand; for as a married woman she was incapable of contracting such an obligation.

A married woman, by the remedial acts of 1848,1849, 1860, and 1862 (4 N. Y. Stat. at L., 513-517), who has a separate estate, may enter into any contract in referente to it, the same as if she were unmarried, and may carry on any trade or business, or perform any labor or services, on her sole and separate account; and the property she acquires by such trade,.business, labor, or services, becomes her sole and separate property and estate, over which her husband has no control; and in respect to all matters relating to it, she may sue or be sued; and any bargain or contract she makes respecting it is in no way binding upon her husband.

Her inability to contract, except in the cases prescribed for by these statutes, remains as it stood at the common law ; and the debt or demand for which the defendant is sued in this action, not having been contracted in a way authorized by statute, is one for which the defendant cannot be held responsible—being, as she alleges, for her necessary wearing apparel. Her husband is the only one answerable upon such contracts, and the action should have been against him, if the case is one in which his authority to furnish her with wearing apparel'could be implied.

It is argued that her coverture is not a matter which can be inquired into in these proceedings ; that it must be set up by way of answer to the suit, and tried as an issue in this action.

It must undoubtedly be set up by way of answer to get rid of this action, for the action may go on, whether the defendant is or is not adjudged to be a fraudulent debtor. This proceeding, however, is a collateral remedy, in addition to the right of action authorizing the arrest and subsequent commitment of a fraudulent debtor, unless he complies with the provisions of the act.

It is a proceeding carried on wholly independent of the action, and which may be resorted to either before or after judgment. It is instituted upon the presumption created by the plaintiff’s affidavit that the defendant fraudulently contracted the debt, or has done, or is about to do, some one of the acts for which he may be arrested and committed to prison, unless he pays the debt, gives security for it, executing an assignment of his property as an insolvent debtor, or gives a bond to the effect that he will, within thirty days, apply for his discharge as an insolvent.

The statute has prescribed what the plaintiff must show by affidavit to entitle him to this extraordinary remedy, and has given the defendant the liberty of denying, upon oath, any of the facts contained in the plaintiff’s affidavit. In the latter respect the statute makes no reservation or exception. It says he may controvert any of the facts, and verify his allegations by his own affidavit, and that where he verifies his allegations, that the complainant may examine' him under oath touching any fact or circumstance material to the inquiry. The defendant has controverted the fact of the existence of a debt due by her to the complainant, in showing by her affidavit that she was incapable of contracting the debt for the recovery of which this action is brought, and this was all that it was material for her to do, for it goes to the foundation of the whole proceeding ; she has not only shown by her own affidavit that she was a married woman, but has proved the fact by the exhibition of her marriage certificate, the record of the marriage, by the clergyman who solemnized it, and the celebration of it, by the testimony of a witness who was present. ,

When the defendant controverts any material allegation under oath, the complainant may examine the defendant, or other party may offer farther proofs. The complainant has not examined the defendant, nor has she offered any evidence to rebut the sworn statement of the defendant, or the evidence produced in support of it. The fact must, therefore, be regarded as proved, and, as the defendant was a married woman, there could be no debt or demand against her under the circumstances disclosed by the affidavit. A material fact, therefore,—the existence of a debt or demand due by the defendant to the complainant,—has been disproved ; and this being disproved, the proceedings can not be sustained.

The defendant must be discharged.  