Aitken v. Clark

Although I am of the opinion that neither of these defences can be sustained, still I am not prepared to say that they are frivolous.

The act of 1862,—which allows a married woman to be sued *322for all matters relating to her separate property,—and the act of 1860, which is amended by the act of 1862, may, taken together, be construed so as to allow a married woman to carry on business on her own account, and be liable for any contract in regard thereto; but it must be observed, that in neither of these is there any provision authorizing a married woman to incur debts for goods purchased, although the husband is excused from any liability if she makes such contracts. How far she may make contracts, and incur debts for other causes than such as are connected with her separate estate, is a question still open to discussion.

It is not necessary to discuss that question here. It is enough to say, that it is not so clearly established as to warrant the court to say that a defence, setting up that she had no separate estate, might not defeat the plaintiff’s claim, if it should be held that she could not make other contracts.

The proper course for the plaintiff was to demur to the answer, and these questions would then be properly disposed of.

The order at chambers should be reversed, and the plaintiff may demur within twenty days to the answer. Costs on both sides to abide event.

Sutherland, P. J., concurred.

Without wishing to intimate any opinion whether these defences may or may not be tenable on a regular hearing of the demurrer, I concur in the conclusion that the answer is not palpably frivolous.

Judgment reversed.