Mr. Justice Clank
delivered the opinion of the court Novem: ber 9th, 1885.
The .title to the premises described in this writ of ejectment, [493]*493it is admitted, was in Samuel Montgomery, who by articles of agreement, in the month of May, 1879, sold and agreed to convey the same to Jane Anderson, wife of Daniel M. Anderson, for a consideration of $500. It is conceded, also, that the purchase was made wholly upon personal credit, and that Jane Anderson was, at the time, possessed of no separate estate, upon the credit of which, as against her husband and his creditors, the purchase could be supported. The purchase money was all afterwards paid, however, and on the 26th January, 1882, Montgomery executed the deed in accordance with the agreement.
The plaintiffs claim to have title to the property under and by virtue of a sheriff’s conveyance of the right of Daniel M. Anderson, the husband, under a sale upon a judgment, obtained for a debt contracted in 1874.
The defendant, Jane Anderson, claims title to herself under the deed from Samuel Montgomery. She alleges that her husband, Daniel M. Anderson, in the year 1878 and in subsequent years, from habitual drunkenness, neglected or refused to provide for her and her children, twelve in number, and that by reason thereof by the provisions of the second section of the Act of 4th May, 1855, she became and was entitled to all the rights and privileges of a feme sole trader, under the Act of 22d February, 1718; that from her separate earnings as a seamstress or vest maker, she was obliged to maintain and support herself and her children ; that from a portion of the said earnings she purchased and paid for the property in dispute, in quarter yearly instalments of $37.50 each, and that the lot of ground, thus acquired by her, thereby became her own absolute estate, which in the language of the law, is “ subject to her free and absolute disposal,” without any liability to be interfered with or obtained by her husband.
If the facts are as thus alleged, on the part of the defendants, it is clear, that, even in the absence of a decree to that effect, the marital disabilities of the wife were to this extent removed; she might trade on her own account independently of her husband, might avail herself of her own earnings, might sue and be sued in her own name, and might acquire and exercise dominion over property in her own right, and that the marital rights of her husband were to the same extent suspended. It follows, also, that if the wife’s acquisitions, under the conditions of the Act just referred to, are her own, free from the interference of her husband, they are also free from the claims of his creditors.
Those portions of the charge assigned for error in the first four assignments are excerpts or extracts, which, taken out of their proper connection, do not fairly present the views of the [494]*494court upon the questions involved. It cannot be pretended upon a reading of the whole charge together, that the learned judge intended to say, or that the jury could have understood him to say, that the failure of the husband, from any cause whatsoever, to support his wife would bring her within the protection of the Act of 1855; the clear reference is to a failure from a wilful non-performance of his marital duties. That part of the charge contained in the first assignment of error, owing to the parenthetic clauses interjected, is perhaps open to the criticism that it is somewhat obscure, but it certainly contains nothing which, taken in connection with the remaining part of the charge, can be considered erroneous. The learned judge says: — “The Supreme Court has held, that in a case of this kind, whenever it is made to appear, to the satisfaction of a jury, that a husband, by reason of drunkenness, profligacy or other cause, has failed, neglected or refused to provide for his wife, that is, to give her a reasonable and competent living according to his supposed circumstances;..... or, if a man from whatever cause — because it may not neces-, sarily be from drunkenness — if he stays away from home, preventing him from doing that which he ought to do to maintain his wife and family; or,from any cause neglects his wife, that she is unable to live by reason of what he does for her, then the provisions of this Act come into effect,” etc.
The meaning of all this is plain and obvious; the failure referred to is such only as results from drunkenness or profligacy, or when the husband is in circumstances to render support, from wilful absence, or from neglect. If the husband’s circumstances, either from sickness or other inability, were such as to prevent him from supporting his wife, his failure of course could not affect his marital rights.
The second assignment is we think equally without merit.
. As to the measure of support, which the husband must provide for his wife, exception is taken” to the charge in the third assignment. The learned judge instructed the jury, in substance, that to provide for a wife was to give her a reasonable and competent livelihood, aceofding to the husband’s circumstances, what was necessary to- contribute to her reasonable health and comfort, adding, that it should be enough “ to keep her soul and body together at least, and to keep her from freezing.” Of this, we think, the plaintiffs certainly cannot have the conscience to complain.
They do complain, however, that the court.in this connection said to the jury that if a wife, through the neglect of her husband, without her own assistance, was unable to procure .enough to eat, for herself and family, or sufficient clothing to wear, she would come within the conditions of the statute. A [495]*495husband is bound so far as he is able to support and maintain his wife, to furnish her such necessaries and comforts of life as her condition requires. Her duties are more properly of a domestic nature ; she is not bound, if her husband is able to provide, to engage in business pursuits on her own account, to support herself and family; if she did, the husband being by law entitled to her earnings, the burden of her maintenance must still rest upon him. If therefore the husband, from drunkenness, profligacy, or other cause, neglect or refuse, when able, to provide a support for his wife, the wife is not bound to undertake the burden, or even to assist in the maintenance of herself and family, except upon the terms designated in the Act. If she is to labor on her own account, for her own living, she has a right to her own earnings to that end. For of what avail could her assistance be, if the husband can pocket her earnings, and squander them in a drunken and profligate life? It must of course be conceded that it is the duty of a wife to aid her husband in every reasonable and appropriate way, in the conduct of his affairs, but when from drunkenness, profligacy, or other cause, he refuses or neglects to maintain and support her, or deserts her, that duty is suspended; she is thereby, to this extent at least, relieved of her marital duties and disabilities, and may devote her energy and effort, on her own account, for the support of herself and her children. This and no more is the manifest meaning of the charge of the learned court below, on this branch of the case.
The questions raised, by the third and fourth assignments ignore the effect of the Act of 1855, and are not sustained.
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Mr. Justice Clank
delivered the opinion of the court Novem: ber 9th, 1885.
The .title to the premises described in this writ of ejectment, [493]*493it is admitted, was in Samuel Montgomery, who by articles of agreement, in the month of May, 1879, sold and agreed to convey the same to Jane Anderson, wife of Daniel M. Anderson, for a consideration of $500. It is conceded, also, that the purchase was made wholly upon personal credit, and that Jane Anderson was, at the time, possessed of no separate estate, upon the credit of which, as against her husband and his creditors, the purchase could be supported. The purchase money was all afterwards paid, however, and on the 26th January, 1882, Montgomery executed the deed in accordance with the agreement.
The plaintiffs claim to have title to the property under and by virtue of a sheriff’s conveyance of the right of Daniel M. Anderson, the husband, under a sale upon a judgment, obtained for a debt contracted in 1874.
The defendant, Jane Anderson, claims title to herself under the deed from Samuel Montgomery. She alleges that her husband, Daniel M. Anderson, in the year 1878 and in subsequent years, from habitual drunkenness, neglected or refused to provide for her and her children, twelve in number, and that by reason thereof by the provisions of the second section of the Act of 4th May, 1855, she became and was entitled to all the rights and privileges of a feme sole trader, under the Act of 22d February, 1718; that from her separate earnings as a seamstress or vest maker, she was obliged to maintain and support herself and her children ; that from a portion of the said earnings she purchased and paid for the property in dispute, in quarter yearly instalments of $37.50 each, and that the lot of ground, thus acquired by her, thereby became her own absolute estate, which in the language of the law, is “ subject to her free and absolute disposal,” without any liability to be interfered with or obtained by her husband.
If the facts are as thus alleged, on the part of the defendants, it is clear, that, even in the absence of a decree to that effect, the marital disabilities of the wife were to this extent removed; she might trade on her own account independently of her husband, might avail herself of her own earnings, might sue and be sued in her own name, and might acquire and exercise dominion over property in her own right, and that the marital rights of her husband were to the same extent suspended. It follows, also, that if the wife’s acquisitions, under the conditions of the Act just referred to, are her own, free from the interference of her husband, they are also free from the claims of his creditors.
Those portions of the charge assigned for error in the first four assignments are excerpts or extracts, which, taken out of their proper connection, do not fairly present the views of the [494]*494court upon the questions involved. It cannot be pretended upon a reading of the whole charge together, that the learned judge intended to say, or that the jury could have understood him to say, that the failure of the husband, from any cause whatsoever, to support his wife would bring her within the protection of the Act of 1855; the clear reference is to a failure from a wilful non-performance of his marital duties. That part of the charge contained in the first assignment of error, owing to the parenthetic clauses interjected, is perhaps open to the criticism that it is somewhat obscure, but it certainly contains nothing which, taken in connection with the remaining part of the charge, can be considered erroneous. The learned judge says: — “The Supreme Court has held, that in a case of this kind, whenever it is made to appear, to the satisfaction of a jury, that a husband, by reason of drunkenness, profligacy or other cause, has failed, neglected or refused to provide for his wife, that is, to give her a reasonable and competent living according to his supposed circumstances;..... or, if a man from whatever cause — because it may not neces-, sarily be from drunkenness — if he stays away from home, preventing him from doing that which he ought to do to maintain his wife and family; or,from any cause neglects his wife, that she is unable to live by reason of what he does for her, then the provisions of this Act come into effect,” etc.
The meaning of all this is plain and obvious; the failure referred to is such only as results from drunkenness or profligacy, or when the husband is in circumstances to render support, from wilful absence, or from neglect. If the husband’s circumstances, either from sickness or other inability, were such as to prevent him from supporting his wife, his failure of course could not affect his marital rights.
The second assignment is we think equally without merit.
. As to the measure of support, which the husband must provide for his wife, exception is taken” to the charge in the third assignment. The learned judge instructed the jury, in substance, that to provide for a wife was to give her a reasonable and competent livelihood, aceofding to the husband’s circumstances, what was necessary to- contribute to her reasonable health and comfort, adding, that it should be enough “ to keep her soul and body together at least, and to keep her from freezing.” Of this, we think, the plaintiffs certainly cannot have the conscience to complain.
They do complain, however, that the court.in this connection said to the jury that if a wife, through the neglect of her husband, without her own assistance, was unable to procure .enough to eat, for herself and family, or sufficient clothing to wear, she would come within the conditions of the statute. A [495]*495husband is bound so far as he is able to support and maintain his wife, to furnish her such necessaries and comforts of life as her condition requires. Her duties are more properly of a domestic nature ; she is not bound, if her husband is able to provide, to engage in business pursuits on her own account, to support herself and family; if she did, the husband being by law entitled to her earnings, the burden of her maintenance must still rest upon him. If therefore the husband, from drunkenness, profligacy, or other cause, neglect or refuse, when able, to provide a support for his wife, the wife is not bound to undertake the burden, or even to assist in the maintenance of herself and family, except upon the terms designated in the Act. If she is to labor on her own account, for her own living, she has a right to her own earnings to that end. For of what avail could her assistance be, if the husband can pocket her earnings, and squander them in a drunken and profligate life? It must of course be conceded that it is the duty of a wife to aid her husband in every reasonable and appropriate way, in the conduct of his affairs, but when from drunkenness, profligacy, or other cause, he refuses or neglects to maintain and support her, or deserts her, that duty is suspended; she is thereby, to this extent at least, relieved of her marital duties and disabilities, and may devote her energy and effort, on her own account, for the support of herself and her children. This and no more is the manifest meaning of the charge of the learned court below, on this branch of the case.
The questions raised, by the third and fourth assignments ignore the effect of the Act of 1855, and are not sustained.
In the fifth and sixth points submitted by the plaintiffs, the court was requested, substantially, to charge the jury, that the evidence was not such as to entitle Jane Anderson to the benefit of the Act of 1855; that she had no claim to the status of a feme sole trader at the time of the purchase of the property in dispute, and that under all the evidence the verdict should be for the plaintiff. Upon a careful examination of the testimony, we are of opinion that the learned court was right in refusing this instruction. In the testimony of Elizabeth Anderson, Ella Engle, Huida Kedman, Emma Huggins, C. E. Bower, David Harman, Dan’l Anderson, Jr., Jane Anderson and others, there is abundant evidence from which the jury might find that from 1876 to 1879 and for some years thereafter, Dan’l M. Anderson was a very dissipated man; that several times during each week he went into a drunken debauch, was often carried home by his sons and his neighbors, to be cared for by his wife; that from habitual drunkenness he neglected his business, and also his wife and family, and failed to provide them with the necessaries of life ; that his wife was com[496]*496pelled to rely iipon her own labor for supportj that she engaged in the business of vest making on her own account, worked early and late, oftentimes until twelve o’clock at night, and by her own earnings, to a great degree, supported herself and her family. The veracity of the witnesses, and the weight and conflict of the evidence were for the jury, but that the testimony referred to was sufficient to justify a submission of the question cannot be doubted.
The court was, we think, fully justified in saying in answer to the fifth point, “ There is evidence here for your serious consideration, that you ought to scan carefully and closely, evidence offered on the part of the defendant, which, if you belieAre it, would not only justify you, but make it your duty, to find a verdict for the defendants ; and thinking so, we have no right to take the case from you, but submit it under all the! evidence, simply saying, that the burden of proof is on the defendant to establish to your satisfaction that she is entitled to the benefits of the Act of 1855, in order to justify you in finding for her.”
The somewhat spirited colloquy between the plaintiff’s counsel and the court, at the close of the charge, under the circumstances in which it occurred, is not such as to call for reversal.
We find no error in this record; the several assignments of error are not sustained.
Judgment is affirmed.