account of her separate estate; and that said defendant was an accommodation indorser.

The question in this case is, can a married woman be held liable upon her accommodation indorsement of her husband's promissory note, made by him, and indorsed by her, in payment of merchandise sold to him in the course of his business, and in no wise necessary to be made with respect to her own property? This involves the construction of the several acts relating to married women, as they stood on the 4th day of October, 1891, the date the note in question was made and delivered. It is conceded that at common law a married woman could make no such contract, and, if such power now exists, it is only because of statutes of this state enabling her so to do. In construing statutes, the chief rule is to ascertain the intention of the legislature. The intent is the vital part, the essence of the law. Suth. St. Const. § 234, and cases cited. The titles of the several acts of assembly on this subject are as follows: (1) Act March 17, 1865, (volume 12, c. 572,) "An act for the benefit of married women;" (2) Act March 23, 1871, (volume 14, c. SO,) "An act to secure to married women certain of their own earnings;" (3) Act April 9, 1873, (volume 14, c. 550,) "An act for the protection of women." All subsequent acts, namely those of March 17, 1875; March 22, 1877; March 9, 1877, respectively, (volume 15, cc. 165, 464, and 467,) and those of February 27, 1879, (volume 16, c. 126,) are only amendments to the previous statutes. In these titles the legislature disclosed its intention to be to benefit, secure the earnings of, and to protect married women. We must gather this intent, however, from what is embodied and expressed in the statutes. Section 2 of the act of April 9, 1873, says "that all debts contracted before marriage by the wife, or by her authority after marriage, shall be a charge on her real and personal property, and a judgment therefor may be recovered against her in her name." Rev. Code, p. 479. Section 4 declares "that any married woman may prosecute and defend suits at law or in equity for the preservation and protection of her property as if unmarried, or may do it jointly with her husband, but he alone cannot maintain an action representing his wife's property; and it shall be lawful for any married woman to make any and all manner of contracts necessary to be made with respect to her own property-and suits may be maintained on such contract as though the party making them was a feme sole." Rev. Code, p. 479. Section 9, as amended, says "that, where a married woman becomes a purchaser of real estate, she may secure the purchase money or a part of it, by recognizance, bond, mortgage or otherwise as single women may, and her husband need not be a party, nor consent to such act of giving security; and in any

case a married woman, above the age of twenty-one years, may give a bond with or without a warrant of attorney, just as if she were a feme sole provided, however, that in case of her entering into recognizance, or giving bond or mortgage or making other contracts, for the payment of money, her husband shall not be liable unless he be a party thereto." Rev. Code, p. 479; Laws Del. vol. 15, p. 289; Laws Del. vol. 16, p. 188. It will be observed that section 1 charges a wife's real and personal property with her debts contracted by her before marriage, or by her authority after marriage. Section 4 enables her to make any and all manner of contracts necessary to be made with respect to her own property, and she is liable thereon as if a feme sole; and section 9 enables her to secure the purchase money of real estate purchased by her, by recognizance, bond, mortgage, or otherwise, as a single woman may, and in any case, if she be over 21 years of age, to give a bond with or without warrant of attorney as if she were a feme sole. But section 1 says "that the real and personal property of a married woman, shall be her sole and separate property, and the rents, issues and profits thereof shall not be subject to the disposal of her husband or liable for his debts." These are the material parts of the married woman's law so far as it relates to this case.

The intention is to be ascertained by considering the entire statute. Every part must be construed with reference to the leading idea or purpose of the whole instrument. Suth. St. Const. § 239. Statutes in derogation of the common law are construed strictly. Id. § 400. Remedial statutes are construed liberally to accomplish the intended purpose of the act. Apply these rules

of construction to the statutes in hand. Their declared purpose is for the benefit and protection of married women. Where, then, either in the letter or the spirit of the law, is authority given to a married woman to become an accommodation indorser for her husband? The whole scope of the law is to destroy the common-law control of the husband over the wife's property, and exempt it from liability for his debts; to protect her property, and even her consent, from the husband's control, in regard to her separate estate. Would not such a right in a married woman defeat the purpose of the law, and enable her to make her separate property liable to lier husband's debts? These statutes enable a married woman to make any and all manner of contracts necessary to be made with respect to her own property. Under the most liberal construction of this law as a remedial law, it could hardly be contended that such an indorsement is necessary to be made with respect to her property or for her benefit. To admit such right, on the contrary, would burden her property with the debts of an improvident or designing husband, and subject

her to his persistent constraint and control, -one of the very evils the statute was intended to remedy. Such a construction would permit the wife to make a contract which is absolutely without consideration, as she receives no benefit whatever therefor, with respect to her own property, as to which alone these statutes remove her common-law disabilities. We can find nothing in the statute to show that the intent of the legislature was to give the wife general power to contract with respect to subjects other than her own property. Examination of the decisions in other states on statutes in many respects similar to our own discloses that there have been two rules applied,— the one strict, permitting the married woman to do no act that was not specifically named in the law; the other more liberal, to permit her to do any act or thing that came within the spirit of the law, and tended to inure to her benefit, and to accomplish the purpose of the act. In no case has the wife been permitted to contract generally in respect to matters other than her own property, unless expressly authorized so to act as a feme sole. De Vries v. Conklin, 22 Mich. 255; West v. Laraway, 28 Mich. 464; Russel v. Bank, 39 Mich. 671; Insurance Co. v. McClellan, 43 Mich. 564, 6 N. W. Rep. 88; Habenicht v. Rawls, 24 S. C. 461; O'Daily v. Morris, 31 Ind. 111; Vankirk v. Skillman, 34 N. J. Law, 109; Manchester v. Sahler, 47 Barb. 155; Ames v. Foster, 42 N. H. 381; Bank v. Scott, 10 Neb. 83, 4 N. W. Rep. 314; Collins v. Underwood, 33 Ark. 265; Jones v. Crosthwaite, 17 Iowa, 393; Appeal of Roop, (Pa. Sup.) 19 Atl. Rep. 278, 7 Lawy. Rep. Ann. 211, with notes; Crockett v. Doriot, 85 Va. 240, 3 S. E. Rep. 128; Frecking v. Rolland, 53 N. Y. 422; Yale v. Dederer, 22 N. Y. 450; Speier v. Opfer, (Mich.) 40 N. W. Rep. 909, 2 Lawy. Rep. Ann. 345, and notes; Hoker v. Boggs, 63 Ill. 161; Howe v. Wildes, 34 Me. 566; Spearman v. Ward, 114 Pa. St. 634, 8 Atl. Rep. 430; Cary v. Dixon, 51 Miss. 593. In De Vries v. Conklin, 22 Mich. 255, where a similar statute received a liberal construction as a remedial law, Judge Cooley uses this language: "But the statute neither in terms authorizes a married woman to make herself liable personally for the debts of another, nor, where no consideration moves to her, can it be presumptively for her benefit. It was no part of the design of the statute to relieve her of common-law disabilities for any such purpose. Those disabilities are removed only so far as they operated unjustly and oppressively. Beyond that they are suffered to remain. Having been removed with the beneficent design to protect the wife in the enjoyment and disposal of her property for the benefit of herself and family, the statute cannot be extended by construction to cases not embraced by its language, nor within this design." We are clearly of the opinion that no such contract can be made

1. Under a contract by which plaintiff agreed for a price named to furnish defendant "free on board cars" at place of delivery a quantity of coal, it was incumbent on defendant to furnish the cars.

2. Where an executory contract for the sale of coal is terminated by the buyer, the seller's right of action at once accrues, not only for the breach of contract, but for the price of all the coal delivered before bringing the action.

Appeal from court of common pleas, Somerset county; J. H. Longenecker, Judge. Action on a contract by John T. Hocking, trading as the Hocking Coal Company, against Silas M. Hamilton and others, partners as S. M. Hamilton & Co. Plaintiff had judgment, and defendants appeal. Affirmed.

W. H. Koontz and H. S. Endsley, for ap. pellants. Coffroth & Ruppel and John Cessna, for appellee.

THOMPSON, J. Appellants rest their de fense to this action, which was brought to recover damages for nonperformance of a contract and for the price of coal delivered, upon the grounds that the contract was not executed by appellants' firm, that under it they were not bound to furnish cars to appellee for shipment of coal, and that when suit was brought the cause of action had not accrued. Appellants, on November 21, 1887, wrote to appellee as follows: "We are about consummating our arrangements for a supply of coal for the year 1888, and in look. ing over the field open to us wish to see the arrangements we can make. We have al ready been asked to consider a proposition from the largest West Virgina coal company, and there are several companies on the creek that will be pleased to enter into arrange ments with us, one to take its entire out. put, and the other to supply our requirements of coal. Besides, we are considering the advisability of opening up our Withers mine on Georgia creek. Before concluding we wish to know if you are disposed to make a bona fide contract with us for 1888 for the entire output of your mine, we guarantying same to exceed quantity to be required to be taken out according to the present term of your lease, and on which you have to pay royalty." Subsequently, in pursuance of this letter, S. M. Hamilton, one of appellants' firm, met appellee. At this meeting there were present other coal operators, with whom contracts were made to take their coal at 70 cents per ton; but appellee declin

ed to make any contract unless the amount to be taken by appellants would be suffi cient to provide for the royalty he was required to pay under his lease. Finally, after some negotiation, it was agreed substantially that appellee would sell 50,000 tons for what would yield him 68 cents per ton. A memorandum was taken to Baltimore, where the agreement was finally prepared, and signed by S. M. Hamilton, and sent to appellee, who signed it. Although so signed by S. M. Hamilton, it was in fact made for appellants' firm. The referee so finds, and the evidence clearly warrants his finding. The shipment of the coal to them, the manifests made in their name, the checks, and their letters, demonstrate that such was the fact. S. M. Hamilton, acting for the firm, made the contract in question, and his act in so making it, beyond doubt, has been ratified and confirmed by the firm. The evidence justifies the master in finding that "said firm ratified the said contract, and accepted the terms and conditions thereof." It was therefore the contract of appellants' firm. In Swisshelm v. Laundry Co., 95 Pa. St. 370, it is said: "Schoyer was acting as agent under parol authority, and his seal is surplusage, being in excess of his authority. Schmertz v. Shreeve, 62 Pa. St. 457. Having but a parol authority, had he signed his principal's name, adding a seal, assumpsit would lie against the principal. Jones v. Horner, 60 Pa. St. 214. Where one accepts a deed containing an agreement on his part, but without affixing his signature and seal, he may be sued in assumpsit for a breach of it. Pratt v. Harding, 30 Pa. St. 525. On the undisputed facts no one is liable in covenant but Schoyer, and the defendant may be properly sued in assumpsit." In Hall v. White, 123 Pa. St. 105, 16 Atl. Rep. 521, it is said: "The articles of agreement upon their face are between the plaintiffs as vendors and the Mercer Mining and Manufactur ing Company as vendee. If this were all, there would be nothing to connect the defendant below with the contract. The jury have found, however, and upon abundant evidence, that the Mercer Mining and Manufacturing Company were but the agents of the defendant; that they negotiated the transaction for him; and that in pursuance thereof he entered into the possession of the land, and made certain improvements thereon. Under such circumstances it is hornbook law that the vendors had the right to sue the principal for whose benefit the contract was made." As the present action is in assumpsit, it may be said that, even if this contract had been executed as contended, it has been so ratified and confirmed by appellants as to support this action. Assuredly, by reason of it, and of such ratification and confirmation, there was a mutuality as to remedies.

Appellants contend that, even conceding the contract binding upon them, they are not Habie, because they were not required to fur

nish appelee the cars for the shipment of the coal. Appellee sold to them his entire output of 50,000 tons, and covenanted not to sell to any other person or corporation, excepting, however, farm and other trade by delivery at the mines. It is not denied that he was ready and willing to deliver the coal there; out, as cars were not furnished to him, he did not do so. Appellants claim, however, that he was bound to furnish cars, and to deliver coal upon them, and, having failed to do so, he was not entitled to recover in this action. The contract provides: "It is agreed that the price to be paid to the party of the second part by the party of the first part shall be for all good, clean, merchantable coal, free on board railroad car at tipple, as follows, that is to say, in hoppers and gondolas, for run of mine coal, sixty-eight cents per ton of twenty-two hundred and forty pounds." The point of delivery to defendants was to be upon the cars at the tipple, and the fact that settlement was to be made according to the weight at Sand Patch did not change it. This is emphasized by the covenant that appellee shall place on each car "a weight of coal not less than the capacity as marked on said car." After the delivery at that point the distribution of the cars necessarily passed to appellants. The appellee undertook to sell and deliver at the tipple the coal at the designated price, and the appellants covenanted to receive it there, and pay for it. If so, they were bound to furnish the cars for it, and the appellee was required to be ready and willing to deliver it there. As he was so prepared, and as the latter neglected and refused to receive it, they became liable in damages for the nonperformance of their contract.

In Kunkle v. Mitchell, 56 Pa. St. 100, it is said: "The article of agreement between plaintiff and defendant is dated December 27, 1862, by which the defendant Mitchell agreed to deliver on the car at Indiana 75,000 feet of lumber at eighty-five cents per 100 feet. This is the controlling clause as to the place of delivery. The cars would be either the cars of the plaintiff or those of the railroad company. In either case they were to be provided by the plaintiff, and not by the defendant. The cars, therefore, being to be provided by the plaintiff, the duty was imposed upon him to see that he was at least ready with the cars, or willing to provide them, and to have notified the defendant of such readiness and willingness." And in Dwight v. Eckert, 117 Pa. St. 508, 12 Atl. Rep. 32, it is said: "It is a well-established principle of law that in a contract for the sale and delivery of goods 'free on board vessel' the seller is under no obligation to act until the buyer names the ship to which the delivery is to be made." If this agreement was susceptible of a doubt in its construction in regard to appellants' duty to furnish cars, the evidence of appellants' actions clearly resolves such doubt against them. The ap

pellee was therefore entitled to recover if at the time of bringing suit his right of action had accrued.

In appellee's statement of his demand, after his claim for damages, he adds one for the delivery of 3,701 and a fraction tons of coal in December, 1888. It is contended that under the contract the payment for this coal was not due until after the suit was brought. The referee finds as a fact that the appellants notified appellee that in August, 1888, the contract was terminated, and this finding is sustained by the evidence. As the contract was thus terminated prior to the suit, the appellee's right of action to recover not only damages, but the price of coal subsequently furnished, accrued. In Campbell v. Gates, 10 Pa. St. 487, it was held that, one party having by letter refused to go on with the performance of the contract, the right of action for damages then accrued to the other party. In Lovell v. Insurance Co., 111 U. S. 264, 4 Sup. Ct. Rep. 390, it is said by Mr. Justice Bradley: "Where one party to an executory contract prevents the performance of it, or puts it out of his own power to perform it, the other party may regard it as terminated, and demand whatever damage he has sustained thereby." And in 3 Amer. & Eng. Enc. Law, p. 903, it is stated: "If, before the time for the performance of a contract has arrived, one party announce to the other that he does not intend to perform his promise, the latter may treat the contract as broken, and bring an action immediately against the former for the breach. It is not necessary that he should postpone his suit until the time for performance has arrived." As the contract was that of appellants, and as by their refusal to perform appellee was entitled to recover, as the damages as found by the master were warranted by the evidence, and as the right of action had accrued at the time when the suit was brought, this judgment is affirmed.

(158 Pa. St. 17)

MERCHANTS' & MANUFACTURERS' NAT. BANK OF PITTSBURGH v. TINKER et al.

(Supreme Court of Pennsylvania. Oct. 30, 1893.) FRAUDULENT CONVEYANCES-ACTION FOR DAMAGES BY CREDITOR-Directing Verdict-CONSPIRACY TO DEFRAUD.

1. In an action for defrauding plaintiff out of its claim against one of the defendants by his collusive and fraudulent confession of judgment in favor of his codefendant, who seized and sold all his property thereunder, it is not enough to show that defendant was guilty of falsehood and fraud in incurring his indebtedness to plaintiff, but it must further appear that the judgment confessed in favor of his codefendant did not represent an honest debt, and that such debt was contracted for the purpose of defrauding plaintiff..

2. The trial judge properly directed a verdict in defendants' favor, where the honesty of the transactions between them was so clearly

proven that he would have been justified in setting aside a verdict for plaintiff, had the issue been submitted to the jury.

Appeal from court of common pleas, Venango county; R. W. Archbald, Judge. Action by the Merchants' & Manufacturers' National Bank of Pittsburgh against H. G. Tinker and J. A. Ritchey for defrauding plaintiff out of its claim against Tinker by a fraudulent conspiracy between him and his codefendant, whereby Tinker's property was seized and sold on judgments confessed in Ritchey's favor. A verdict in plaintiff's favor was set aside, and a new trial granted. On the new trial the court directed a verdict in defendants' favor, and, from a judg ment entered thereon, plaintiff appeals. Affirmed.

J. H. & A. R. Osmer and Ash & Speer, for appellant. Lee & Criswell, C. Heydrick, and Jas. Denton Hancock, for appellees.

WILLIAMS, J. The plaintiff was a creditor of Tinker, having discounted his paper for over $6,000. Before this paper had all matured, Ritchey, .who held the notes of Tinker for a much larger amount, caused judgments to be entered against him, and executions to be issued, on which his property, real and personal, was sold, and the proceeds were wholly absorbed by prior liens and Ritchey's judgments. The bank alleged that these judgments were fraudulently confessed, and that its debtor's property had been placed beyond its reach by a conspiracy between the defendants in this action to defeat the collection by it of its just claims. The bank sought, therefore, to recover the amount of its demands against Ritchey and Tinker, as damages sustained by it in consequence of the alleged conspiracy. Its right to recover depended, not on the fact that it was a creditor of Tinker, but on the allegation that, being a creditor, it had been defrauded, and the collection of its debt defeated, by the fraudulent conspiracy which it charged. The burden of proof was on the plaintiff. It was not enough to show falsehood and fraud in Tinker, in procuring the discount of his notes by the bank. It was necessary to go further, and place before the jury facts from which they might fairly find that the notes held by Ritchey did not represent an honest indebtedness, but were made and used for the fraudulent purpose asserted. For this purpose some evidence was given to show that six of the notes presented about the same appearance when they were taken to the prothonotary, and, in the opinion of the expert witnesses, had been written at about the same time. It also appeared that Ritchey had stated in his return to the assessor that he had no money at interest, due him from solvent debtors. This was a very slight foundation for a verdict in support of the plaintiff's allegations, but, con

by the defendants to show the existence of the indebtedness, it lost significance. The proof of the existence of the loans or advances by Ritchey was made, not only by the testimony of the two defendants but by the production of checks and bank books that amounted, in the mind of the trial judge, to a demonstration of the honesty of the transactions. He said, when he withdrew the case from the jury: "I frankly say that if I had submitted this case to the jury, and the verdict had been found in favor of the plaintiff, I would have been compelled, under the evidence which has been brought here, to set aside that verdict, just as Judge Taylor did in the former case, and allow the case again to go to a jury." Such being the effect of the evidence on the mind of the judge, he did right in acting upon his judicial conscience, and withdrawing the case from the jury. The question raised on appeal from such a judgment is, ought the case to have been submitted to the jury? It is true that the evidence of collusion need not be conclusive, as was held in Lowe v. Dalrymple, 117 Pa. St. 564, 12 Atl. Rep. 567, but it must do more than raise a suspicion. Mead v. Conroe, 113 Pa. St. 223, 8 Atl. Rep. 374. It must lead to a belief. Upon a careful examination of the testimony and the exhibits, we cannot say that the learned judge reached a wrong conclusion as to their effect, nor that there was evidence before the jury on which a verdict in favor of the plaintiff should have been sustained. The judgment is therefore affirmed.

(158 Pa. St. 25)

COMMONWEALTH v. PIPES. (Supreme Court of Pennsylvania. Oct. 30, 1893.)

HOMICIDE-EVIDENCE-INSTRUCTIONS.

1. Defendant testified that he found deceased in his stable near midnight, and, having pursued him for the purpose of identification, was attacked by him, and shot in self-defense. Held, that defendant could prove that a part of one of his harnesses had been previously stolen, and had been in possession of deceased, who had traded it to another, with a promise to supply the missing part, to show deceased's intent.

2. Where defendant is, in the nature of things, the only eye-witness of the alleged crime, it is misleading and prejudicial to charge that defendant is, of course, most deeply interested; and just so far as he fails in being corroborated by other testimony, and his interest would bias his testimony, so far the jury may discredit the latter, but, notwithstanding said interest, if the testimony be corroborated, the jury cannot disregard it; that it is simply a question of credibility.

Appeal from court of oyer and terminer, Greene county.

William Slater Pipes, convicted of manslaughter, appeals. Reversed.

The charge of the court, excepted to, is as follows: "The defendant is, of course, most

and just so far as he fails in being substantiated and corroborated by other testimony in the case, or facts in the case, and that interest and feeling would bias him or prejudice him in giving his testimony, so far would you be warranted in discrediting that testimony. But notwithstanding the interest of any witnesses, if they are corroborated by the testimony of other witnesses and other testimony in the case, then you cannot disregard it simply because of their feeling or interest in the case. It is only a matter for you to take into consideration in passing upon the amount of credibility you are to give the testimony of every witness."

Donley, Sayers, Wyly, Buchanan & Walton, for appellant. H. J. Ross, Dist. Atty., John S. Robb, R. F. Downey, and W. A. Hook, for the Commonwealth.

MITCHELL, J. Under the charge of the learned court, the purpose of the deceased to commit a felony, in entering the prisoner's stable, was an important fact. Indeed, it was stated to the jury as part of a "vital inquiry" for them. All evidence, therefore, which bore directly on such inquiry, was relevant and admissible, even though it incidently tended to show the commission by the deceased of a crime not part of that on trial. The two offers included in the first and second assignments of error were clearly within this principle. The presence of the deceased inside of a locked stable near midnight was, of itself, very strong evidence that he was there with some criminal intent; and what this intent was would be made clear if it should be shown, as was offered, that part of a harness belonging to the prisoner had been stolen; that it had been in the possession of the deceased; and that the latter had traded it to another person, with a promise to supply the missing part. Evidence to that effect was admissible. It did not come within the general rule that one crime cannot be introduced as evidence of another, separate and unconnected. Such evidence, as was said in Goersen v. Com., 99 Pa. St. 388, "cannot be received to impeach [the prisoner's] general character, nor merely to prove a disposition to commit crime. Yet, under some circumstances, evidence of another offense by the defendant may be given. Thus, it may be to establish identity; to show the act charged was intentional and willful, not accidental; to prove motive," etc. Examples of the exceptions to the general rule may be found in Com. v. Ferrigan, 44 Pa. St. 386; Kramer v. Com., 87 Pa. St. 299; Goersen v. Com., supra; and Com. v. Johnson, 133 Pa. St. 293, 19 Atl. Rep. 402. The first and second assignments must be sustained.

While the point is not expressly raised on this record, yet, as the case must go back for another trial, it is proper to call atten