Turner v. Davenport. Section 4 of our Married Women's act makes "the wages and earnings of any married woman acquired or gained by her after the passage of this act in any employment, occupation or trade in which she is employed and which she carries on separately from her husband, her sole and separate property as though she were a single woman." Gen. Stat. p. 2013 § 4. * * * It is clear that, under our statute, a married woman may engage for wages, by contract, with any person other than her husband, and that, whether her husband consent or not, she may receive the moneys due her for such services as her separate property, and, as it seems to me, this statute expressly negatives the right of the husband to reduce such wages to possession, by declaring that such wages "shall be her sole and separate property," for at common law he could not reduce property of her sole and separate estate to his possession to such an extent, at least, as to be free from liability to account to her therefor in equity. Story Eq. Jur. § 1380; 3 Pom. Eq. Jur. §§ 1098, 1099, 1103; Taylor v. Meads, 4 De G. J. & S. 597, 603, 604; Jones v. Clifton, 10 U. S. 225, 229; Peacock v. Monk, 2 Ves. Sr. 191; Kelly Mar. Wom. 251 § 2. The rule of the common law was founded upon the theory that husband and wife were one in law. When our statute, by express provision, gave to the wife the right to contract, as if she were a feme sole, with any person, except her husband, the reason for the rule ceased. When the reason for a rule ceases, the rule is no longer in force. McBlain v. Edgar, 48 Atl. Rep. 600. In this case services were rendered by the complainant to the firm of which her husband was a member. The learned chancellor says: "If the contract between them established a chose in action, it was one which the husband could, prior to the passage of the act, reduce to possession and hold absolutely, and a bill in equity would not lie therefor; for it would be absurd to say that the husband, having the earnings of his wife in his pocket, and refusing to pay them to her, had not reduced them to possession." This does not seem to us to be the position of the husband. Turner v. Davenport. He and his partner were made parties defendant to her bill and neither of them answered. The bill stands confessed as to all. Not only the justice of her claim, but her right to have it to her own use, is admitted by the default. The husband makes no claim to possession of the funds, nor claim or right to reduce the same to possession. To us this seems a complete abandonment of such right, even if it exists. Nor do we agree to the suggestion that the husband, who is a member of the co-partnership for which his wife has labored for wages, can be said to have her earnings in his pocket. Partnership assets are first liable to pay partnership debts. 2 Lind. Part. *599; Hill v. Beach, 1 Beas. 31; Blackwell v. Rankin, 3 Halst. Ch. 152, 162. As an individual, he cannot be said to have any part of the firm assets in his pocket, or a right to so have, until all the partnership debts are paid. A bill by a wife asking to be paid, on the distribution of the co-partnership assets, wages admittedly due her for her labor and personal services rendered to the co-partnership, cannot be said to be a bill seeking to recover moneys due the wife which the husband has reduced to possession, simply because he is one of the firm. We think that the wages due the wife for services to the copartnership became, by our statute, and also with the assent of her husband by his confessing her bill, her sole and separate property, and that she is entitled to enforce her claim in equity against the assets of the firm in which her husband is a member. For this reason the decree must be reversed, and a decree directed to be entered allowing the complainant's claim as established by the evidence. For reversal-THE CHIEF-JUSTICE, VAN SYCKEL, DIXON, GARRISON, COLLINS, GUMMERE, FORT, GARRETSON, HENDRICKSON, BOGERT, KRUEGER, ADAMS, VREDENBURGH, VOORHEES-14. For affirmance-VROOM-1. Howell v. Howell. SADIE HOWELL, appellant, υ. CLINTON G. HOWELL, respondent. [Filed July 2d, 1901.] Where a husband left his wife under a false statement of the purpose for which he was going away from home and of the place to which he was going, taking with him her engagement ring and two watches, which he had formerly kept in his house, and the same day wrote to his wife's father that he had run away; that there was no use tracing him; that he did not know as he would ever be back; that he did not know where he would go, and asking his father-in-law to go and get his wife and move her home; that in a few letters he wrote her, after leaving, he never expressed any intention of returning, nor asked her to join him, nor manifested any regret at the separation, nor contributed anything towards her support and never returned to her, the absence continuing for two years and five months before the petition was filed, the willful, continued and obstinate desertion declared in the statute to be sufficient ground for divorce is proved and the petitioner is entitled to a decree. On appeal from a decree advised by Vice-Chancellor Grey, dismissing the petition of the appellant, whose opinion is reported in 48 Atl. Rep. 510. Mr. George M. Shipman, for the appellant. The opinion of the court was delivered by GARRETSON, J. The appellant filed her petition for divorce April 3d, 1900, on the ground of desertion, and alleges that her husband deserted her in the month of October, 1897. The defendant filed no answer, and the case was heard ex parte. It appears from the evidence that the petitioner and the defendant were married June 2d, 1897; that the defendant lived with the petitioner from the time of the marriage until the Howell v. Howell. 16th day of October, 1897, and taught school from September 1st, 1897, to the 16th day of October, 1897; that on the 16th day of October, 1897, which was a Saturday, the defendant left home on the morning train, having told his wife the day before that he had received a letter from a butcher at a certain place asking him to come and post his books, as he had been in the habit of doing. He usually went on his wheel and came back in the evening, and on this occasion he said first that he would go on his wheel, but afterwards he said that he was tired, and would go on the train; he said he would be back at night; he took his wheel with him. He did not stop off at the place to which he said he was going, but went on with the train beyond there to another place, from which place he wrote and mailed a letter to his father-in-law, stating that he had run away, and was on his road then; that he was going to Port Jervis, and it was no use of tracing him; that he did not know as he would ever be back; he did not know where he would go to; that he was in debt, and could not pay, and wanted his father-in-law to go and get his wife and move her home; that he has never been back, and has never contributed anything to the support of his wife since. It appears from the evidence that when he went away he took with him his wife's engagement ring, which he had given her, and two watches which he had kept in a trunk, besides a watch which he carried. He owed $150, which he had gotten upon a note the morning he was married, and which note his wife has since paid. When he first went away he wrote from Baltimore to his father-in-law for clothes and money, and his father-in-law sent him clothes and money. He afterwards wrote to his sister from St. Louis, asking for money, and his wife sent him $20. It does not appear that he ever acknowledged the receipt of this $20. The petitioner had received some letters from him after he left, and before sending him the $20, but it does not appear that in any of them he ever spoke of returning to her, or asked her to go to him, or expressed any regret that they were not able to live together. On the 30th of June, 1899, more than twenty months after he Howell v. Howell. had left his wife, she received a letter from him, dated Chicago, in which he addressed her as his "dear wife;" tells her where he is; that he had left the hospital; gives some account of his ailments, and the treatment for them; asks her to remail him a letter which he supposes she had written, and which he had directed should be sent back to the place where he had lived when he left her; tells her he will keep her posted as to his progress; gives her some of his expectations of employment, and what he will make by it; says, "Don't forget and send me back the letter, love, as I don't want to lose any more communications from you;" tells her of the condition of the weather, and concludes, "Remember to sister and the other folks, and don't forget your own husband." This could hardly be called a letter expressive of very much regard, still less of affection, and it is absolutely destitute of any regret at separation from his wife, or of any desire that she should join him, or of any intention of returning to her. We have, then, a husband going away from his home, after giving a false reason to his wife for leaving; sending word to her father that he has left with a purpose of not returning, and informing him of that fact, and requesting him to look after her. He carries out his intention, and gives no indication of change in his intention for more than two years and five months before the bill was filed. It is not necessary that the petitioner should show any motive for her husband's desertion of her. That he was in debt was surely no sufficient motive for his going away; it is no answer to her charge. We can only judge of his intention by his acts, and his leaving his wife under a false statement of his purpose in going away; his taking her property with him; his saying that he was going away; that there was no use trying to trace him; his continued absence for more than the statutory period; his failure to make any provision for his wife, and the total absence, in the few letters he sent her, of any expression of an intention to return, are surely sufficient to satisfy the court that he has been guilty of willful, continued and obstinate desertion. We think that his act of going away, in the light of the deception practiced upon his wife; his statement of his purposes in |