Volume II Part 80 (1/2)

Mr. Story, in his work upon ”Agency,” and Mr. Bouvier, in his ”Inst.i.tutes,” in treating of the different kinds of agents, both speak first of attorneys-at-law. All the elementary writers upon law tell us that attorneys are agents. Without reference to our recent statutes modifying the common law, we will open the books and see who may be attorneys or agents.

II. WHO MAY BE ATTORNEYS OR AGENTS.--Mr. Story, in his work on Agency, says, sec. 7:

Secondly, who are capable of becoming agents? And here it may be stated that there are few persons who are excluded from acting as agents, or from exercising an authority delegated to them by others. Therefore, it is by no means necessary for a person to be _sui juris_ or capable of acting in his or her own right, in order to qualify himself or herself to act for others. Thus, for example, monks, infants, _femes covert_, persons attainted, outlawed, or excommunicated villains, and aliens, may be agents for others.... A _feme covert_ may be an attorney of another, to make livery to her husband upon a feoffment; and a husband may take such livery to his wife, although they are generally deemed but one person in law. She may also act as agent or otherwise of her own husband, and as such, with his consent, bind him by her contract, or other act; or she may act as the agent of another, in a contract, with her own husband.

III. UNDER THE COMMON LAW.--In c.o.x _vs._ Kitchin, 1 Bos. & Pul., 438, where a _feme covert_ represented herself falsely to the tradesman to be a _feme sole_, and obtained goods on credit, it was held that she rendered herself personally responsible.

In Derry _vs._ Mazarine, 1 Ld. Raymond, 147, it was held that the wife of an alien, who was doing business in her own name, in England, was liable as a _feme sole_. In Hauptman _vs._ Catlin, 20 N. Y., 248, the Court of Appeals says:

Even before the late statute respecting married women, they were regarded as _femes sole_ in respect to their separate property, and were as to such property liable on their contracts respecting the same, to the same extent and as though they were not under the disability of coverture. It was held by Lord Mansfield and his a.s.sociates, in Corbett _vs._ Poelnitz, 1 T. R., 5, that if a husband and wife choose to separate, and the husband allows the wife a separate maintenance, she may contract and be sued as though she were unmarried, and may be held to bail and imprisoned on a _ca. sa._ without her husband. The court made this innovation on the ground that ”the times alter new customs, and new manners arise, which require new exceptions, and a different application of the general rule.

IV. UNDER THE RECENT STATUTES.--In Conway _vs._ Smith and Wife, 13 Wis., 125, the court held that ”the statute gives to married women, as necessarily incidental to the power of holding property to their own use, the power of making all contracts necessary or convenient to its beneficial enjoyment, and such contracts are to be regarded as valid in law, and may be enforced by legal remedies.” Cole, J., dissenting.

In Barton _vs._ Beer, 35 Barbour, 81, the court, in treating of the liability of a married woman, says:

If she acts as a _feme sole_, she ought, in justice to the public, to be subjected to all the duties and liabilities of a _feme sole_.

In Emerson _vs._ Clayton, 32 Ill., 493, this honorable court held, that a married woman might bring replevin in her own name, for her separate property, against a third party, or even against her own husband, and that the act designed to make and did make a radical and thorough change in the condition of a _feme covert_; that she is to be regarded as unmarried, so far as her separate property is concerned.

In Pomeroy _vs._ Manhattan Life Insurance Co., 40 Ill., 398, Walker, C. J., in delivering the opinion of the court, says:

Under the statute she is ent.i.tled to the benefits it confers, and must be held liable for her acts performed in pursuance of the authority it confers. If it gives the rights of a sole owners.h.i.+p, it must impose the liabilities incident to such an act.

In Brownell _vs._ Dixon, 39 Ill., 207. this court not only held, under the act of 1861, that a married woman possessed of separate property might employ ”an agent to transact her business”, but that she might employ her own husband as such agent.

Relying upon the doctrine laid down in this case, we insist that the power ”to employ an agent” carries with it the liability to pay such an agent a reasonable compensation for his services; and that if a married woman employs a man to work on her farm for one day, and agrees to give him two dollars therefor, and fails so to do, that a fair construction of the act of 1861 would allow him to sue her before a justice of the peace, and not drive him to the expense of filing a bill in chancery that would amount to more than a denial of justice.

Now, if under the Act of 1861 she can employ an agent to transact her business, we insist under the Act of 1869, giving the wife her own earnings, and the rights to sue for the same in her own name, free from her husband, that she has the right to be employed as an agent, or attorney, or physician, if she is capable, and to agree to do the duties of her profession. It would almost seem that this question is answered by the following extract from the opinion of this honorable court, as delivered by Mr. Justice Lawrence, in Carpenter _vs._ Mitch.e.l.l, 2 _Legal News_, 44:

It may be said that a married woman can not adequately enjoy her separate property unless she can make contracts in regard to it. This is true, and hence her power to make contracts, so far as may be necessary for the use and enjoyment of her property, must be regarded as resulting by implication from the statute. If she owns houses she must be permitted to contract for their repair or rental. If she owns a farm she must be permitted to bargain for its cultivation, and to dispose of its products. We give these as ill.u.s.trations of the power of contracting which is fairly implied in the law.

It is true, in this opinion the learned Judge confines his remarks strictly to the contracts of the wife made in relation to her separate property, and not in relation to general trade. This case arose before the pa.s.sage of the Act of 1869. The right of a married woman to bring a suit in her own name is a necessary incident to the law. (Cole _vs._ Van Riper, 1 _Legal News_, 41.)

V. THE TRADES AND PROFESSIONS OPEN TO WOMEN.--The doors of many of our universities and law schools are now open to women upon an equality with men. The Government of the United States has employed women in many of its departments, and appointed many, both single and married, to office. Almost every large city in the Union has its regularly-admitted female physicians. The law schools of the nation have now many women in regular attendance, fitting themselves to perform the duties of the profession. The bar itself is not without its women lawyers, both single and married.

Mrs. Arabella A. Mansfield, wife of Prof. J. M. Mansfield, of Mount Pleasant, Iowa, was admitted to the bar of Iowa, upon the unanimous pet.i.tion of the attorneys of that place, after a very careful examination, not only of the applicant, but of the statutes regulating the admission of attorneys.

The statute of Iowa provides that ”any white male person, twenty-one years of age, who is an inhabitant of this State,” and who satisfies the court, ”that he possesses the requisite learning, and that he is of good moral character, may, by such court, be licensed to practice in all the courts of the State, upon taking the usual oath of office.”

The clause construing statutes is as follows:

Words importing the singular number only, may be extended to several persons or things; and words importing the plural number only may be applied to one person, or thing; and words importing the masculine gender only may be extended to females.

In Mrs. Mansfield's case, the court not only held that she could be admitted, notwithstanding the fact that she was a married woman, under the clause of the statute giving a construction to the masculine noun ”male,” and p.r.o.noun ”he”; but that the affirmative declaration, that male persons may be admitted, is not an implied denial of the right to females. We know of no instance in the United States, where a woman, whether married or single, who has complied with the statutes of the State in which she lived and applied for admission, that the proper court has refused to grant her license.

VI. HOW THE LEGISLATURE HAVE REGARDED YOUR PEt.i.tIONER.--It has been held, in England, that a wife who does business in her own name, with either the express or implied consent of her husband, should be treated as a _feme sole_, and be sued as such; and, with such consent, could be an administrator, executor, or guardian, in England or America.

The Legislature has, in repeated instances, acknowledged the capability and capacity of your pet.i.tioner to transact business, by providing that the _Chicago Legal News_, edited by her, and containing the decisions rendered by your honors, should be received in evidence in all the courts of this State, and in the following extract from the charter of the Chicago Legal News Company:

And all the real and personal estate of said Myra Bradwell shall be liable for the debts of said company, contracted while she is a stockholder therein, and all stock of said company owned by her, and the earnings thereof, shall be her sole and separate property, the same as if she were an unmarried woman; and she shall have the same right to hold any office or offices in said company, or transact any of its business that a _feme sole_ would have.--_Legal News_, Edition Laws of 1869, p. 93. Sec. 4, p. 93.