STATUTE OJ!' LIlIIl'rATIONs-PLEADING-lNP.RINGEMBNT OJ!' PATElfT. . .
A state statute of limitations. is' not pleadable in bar of &baetion at law for infringement,; of a patent.
InEquity. Sur nemurrer to declaration. George H. Christy, for demurrer. K. R. Smoot and J. M. Shields, contra. Before McKENNAN and ACHESON, JJ. PER CuRIAM:. The question raised by the demurrer is whether, by virtue of section 721 of the Revised Statutes, which makes the laws of the several states rules of decision in trials at common law in the courts of the United States" in cases where they apply." the state statute of limitations limits the time in which actions for infringement of letters patent may be brought in the courts of the United States. The decisions of the circuit courts are conflicting, and the question has not been passed on by the supreme court. But in the case of Par1cf:r v. HaUock, 2 Fish. Pat. Cas. 543, (foot-note,) Judge GRIER ruled against the applicability of the state statute, and that ruling was regarded as authori· tative in this circuit, and, in effect, was followed in Wetherill v. Zink Co., 1 Ban. & A. 485. In the absence, then, of any decision of the supreme court on the question, we are disposed to adhere to the rule as laid down by Judge GRIER; and the more so in view of similar rulings in other circuits in suits hrought upon the patent which is the foundatiop of the present action. Mayv. Buchanan Co., 29 Fed. Rep. 469; May v Ca83 Co., 30 Fed. Rep. 762; May v. RaUB Co., 31 Fed. Rep. 473. The demurrer must be overruled, with leave to the defendant to plead to the merits within 30 days. And it is so ordered.
KUSTER et al.
(Cirewf.t 001Jll't, D. SIJ'Uth. O/Jll'oUna. February 18, 1891.)
WIPE TRADING AB FEMB SOLlI-HUSBAND AS AGENT.
In South Carolina, under Const. art. 14, § 8, declaring all the property held at the time of her marriage, or acquired thereafter, by a married woman to be her separate property; the. act of 1887, (Ill St. at Large, 8111,> making all her earnings and income her separate estate; the act ofl882, (Gen. St. S. c. 2087,) declaring that a married woman shall have the right to purchase any species of property in her own name, and to take conveyances therefor, and to l'.ontract "as to her separate eatate" as if she were unmarried; an"- the decisions of the supreme court constru· ing these aets.-a married woman can ehgage by herself in trade, and emplov her husband as agent to conduct the business. -
Rule tq Show Cause why a Receiver be not Appoipted.
;JuliU$ H. Heyward, for Westmoreland &: Haynesworth, for defendants.
SIMONTON, J. The defendants, E. B. Dickson and M. Reid Dickson, at one time doing business as Dickson Bros.,' in Augusta, Ga., became indebted to the plaintiffs, Kuster & Co., and suffered judgment in the sum of $1,108.34. Being insolvent, the firm was dissolved; E. B. Dickto Greenville, and M. Reid Dickson to Spartanburg, in son this state. The wife of M. R. Dickson inherited some $3,000 from her father, and, putting this into business, she purchased with cash and credit a stock of goods, and carries on business in Spartanburg under the name of "The New York Syndicate Store." Her husband, M. R. Dickson, is her clerk and manager at $75 per month. The wife of E. B. Dickson, in Greenville, having no money, purchased with some moneyshe borrowed a bankrupt stock in Greenwood, sold it at a profit, and, with the money thus made, and some more money borrowed, purchased another stock of goods, and opened a store in Greenville. The goods are bought and the money borrowed in her name. Her husband is her chief clerk and manager, at a salary of $75 month. Kuster & Co. issued execution, which was returned nuUa bona. They then instituted supplemental proceedings, and took testimony, with the above result. When the testinlony was filed, they obtained a rule against each defendant to show cause why a receiver be not appointed to take charge of the stock of goods in these two stores. The position taken by tb,e plaintiffs, as I understand it, is this: The business of these two stores is conducted by the defendant debtors, the for his wife. A husbands of the married women, each one as the married woman, under the law of South Oarolina, cannot engage in trade. She cannot, therefore, authorize another as her agent to do so. The husband, thus holding himself out as agent for one not competent to appoint an is in the position of one acting for a foreign principal, or for an undisclosed principal, and is himself personally liable on all contracts for the purchase of goods, and so the, owner of the goods purchased, which are liable for his debts. Oan a married woman in South Oarolina engage in trade? The question has never been made in this state. The learned and able, as well as exhaustive, arguments of, counsel deserve careful consideration. Until the adoption of the constitution of 1868, the relations of husband and wife were governed in this state by the COmmon law. Article 14, § 8, of the constitution declares: "The real and personal property of a married woman held at the time of her marriage, or that which she may thereafter acquire, either by gift, grant, inheritance, devise, or otherwise, shall not be subject to levy and sale for her husband's debts, but shall be held as her separate property, and may be bequeathed. devised, or alienated by her the same as if she were nnmarried: provided, that no gift or grant from the husband to the wife shall be detrimental to the just claims of his creditors. OJ In 1887 (19 St. at Large, 819) the legislature of South Oarolina de-' clared that all the earnings and income of· a married woman. shall be
KUSTER fl. DICKSON.
her own separate estate, and shall be governed by the same prOVISIons of law as apply to her separate estate. In 1870 the legislature (14 St. at Large, 325) gave to married women unlimited powE>r to contract. Pelzer v. Campbell, 15 S. C. 601. But in 1882 (Gen. St. S. C. § 2037) this was amended so as to read:
"A married'woman shall have the right to purchase any species of property in her own .aild to take pr6per legal conveyances therefor, and to contract aod be contracted with as to her sepamte propel'ty, in the same manner as if she were unmarried: prOVided, that the husband shall not be liable for the debts of the wife contra.cted prior to or after their marriage, except for her necessary .support."
If this court were at liberty to construe this act, the terms in which it is couched would end this question. A married woman "can purchase any species of property in her own name." It would then become her separate property, and "she can contract and be contracted with as respects it in the same manner as if she were unmarried." As she has the power to buy, so she has the power to sell. She can buy in such quantity as she pleases, she can sell in such quantity as she chooses. But we are controlled in our construction by the rulings of the supreme court of the state, and must rely on their conclusion. The words, "as to her separate property," inserted in the amendment, have been a fruitful source of litigation, an4 the construction they have received has worked great loss in many instances, and has covered in some gross fraud. The result of this litigation, however, bas established these rules: A married woman eannot, directly or indirectly, make herself or her separate estate liable for the debts, contracts, or engagements of her husband, or any other person. l She can bind herself by contracts made by herself for the preservation, maintenance, improvement, or productive development of her separate estate, and may constitute her husband, pr any one her agent in this behalf. Thus, is Fant v. Brown, 29 S. C. 598, 6 S. E. Rep. 937, she was held liable for mules bought by her for her plantation, and in Brown v. ThCYm8<Yn, 27 S. C. 500,4 S. E. Rep. 345, she is held liable for provisions sold to her to be used by her farmhands. In Greig v. Smith, 29 S. C. 435, 7 S. Eo Rep. 610, she was held liable for moneys and supplies advanced for the cultivation of her plantation. The court goes further than this. She can buy property on credit, give her obligation for it, and mortgage other property to secure the obligation. Dial v. Agnew, 28 S. C. 455,6 S. E. Rep. 295. Her contract as a subscriber to shares in a building and loan association, whereby she binds herself to pay monthly dues and interest, is good, and she can mortgage E. Rep. property to secure it. . A88ociaftion v. JOne8, 32 S. C. 313, 10 1079. So a married woman can, witla a view to enlarge or increase her separate property, buy other property, and create a lien on that already owned by her; or, if she have no separate property, can create it by borrowing, money for that purpose. WALLACE, J., in Dial v.
lHabe;ntclltv. Rawls, 24 S. C. 461; Aultman & Taylor Co. v. Rush, 26 S. C.520, 2 S. E. Rep. 402; Aultman & TaYlor Co. v. Gibert, S. C. 811,5 S. E. Rep. 806; Goodgion v. 82 S. C. 49, 11 S. E. Rep. 851; Bank v. Epstin, 44 Fed. Rep. 403.
FBDERALREPORTER, vol. 45. Mr. Justice MdvER,'.speaking .for 'the .cottrll in ;A880ciation . v; supra, thus:
, ..It must be regal'dpd'aSsettied that when a married woman, either directly 'orthtough her agent. bOrrows money from another; the money so borrowed becomes at once part of her separate estate, and her contrllot to repay the BROW ill a contract with reference to. her. separate estate, w:1deh. may be enher; aud that the lender, ill tbe .of notice to the conbas a right to assume that toe money was borrowed for the use of the JDarriedwoman; and sbe is estopped from denying tb61'act, unless it is shown that the lendl'lr had notice to the contrary. These cases determine that the busband may, if so authorized by the wife, act ,as her agent, and that tbe disposition which may be made of the money after it bas been borrowed cannot affect the question." If money can be borrowed, so may goods be borrowed. If a married
woman can layout moneys on her separate estate for the purpose of producing crops and selling them; she can purchase property and sell it for the purpose of profit. If she buys a stock of goods on credit, either to add to or to create a separate estate, it beromes "at once a part of her separate estate, and her contract to pay for it is an enforceable contract against her." If she can acquire property by this way, she has all the rights of ownership over it, and can 'sell it how and when she pleases, and can authorize anyone to do so. If she devotes her thne and skill and intelligence in effecting such sale, under the act of 1887 her earnings are her own separate estate. If· she prefers to aet through an agent, she can, under the decisions, do so, and appoint even her husband as such agent. There is nothing in the constitution orstatttte law, or in the decisions of the supreme court of South Carolina, which forbid a m'arried woman from engaging by herself in trade. It would seein that she cannot be a member of a firm. Gwynn v. Gwynn, 27 S. C. 526,4 S. E. Rep. 229. It is unnecessary to discuss any other question made in the case, The rule to show cause is discharged.
Jones; 32 S. C., andl0 S. E.
HULL 11. PrrRAT
January S4, 189L)
(Of,rcuU court, B. D. Ohio,
&I.E-WilEN TITLE PASSlllB.
The owner of certain patents agreed in writing "to sell and does hereby sell them, " fOr··a designated !lum in cash, and another sum to be paid a year from date. The purchaser, as part of the purchase price bound. himself to convey to the seller 200 lots within SO days, with an abstract shOwing clear title, and also to convey to a trustee the title to other lands to secure the deferred purchase money. The conveyance of the patents was to be placed in ellorow with the same trustee, to be delivered to the purchaser on the payment of the entire money oonside1"&tion. Held, that the conveyance of the lots to the seller, the execution of the trustdeed, and the payment of the entire money consideration, were.conditions precede ent to the vesting' of the title to the patents in the purchaser, and that therefore the oontract was only an executory contract of sale. and did not operate to paas lihe title.