Vallance a, Bausch,

reasons above stated to show that such right is not inconsistent with the acts, in the main, apply equally to the question of the husband's right or estate as tenant by the courtesy.

Of course both questions are mere questions of intention-how far the acts were intended to operate.

If these rights of the husband have been taken away by the acts, it is done by implication.

In Bower a. Lease (5 Hill, 226), the court says: "As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Hence a repeal by implication is not favored," &c. (See also McCartee a. The Orphan Asylum Society, 9 Cow., 437, 506.)

Much stress has been put on the words, " and shall continue her sole and separate property, as if she were a single female," and the words, "but shall be her sole and separate property, as if she were a single female," &c., in the first and second sections of the act of 1848; and on the words, " and the same shall not be subject to the disposal of her husband, nor be liable for his debts," in the first section of the act of 1849, as showing these acts to be irreconcilable with the continuance of the rights of the husband in question.

As to the words above quoted from the act of 1848, taken literally, they are simply absurd, and would involve a legislative impossibility.

The property of a single female cannot literally continue in her after marriage as if she were a single female. The act of 1848 was intended to secure to a married woman the sole and separate use of her property as if she was single, and from the peculiar phraseology above quoted, was probably intended to give her, and probably would have given her, a right to dispose of it (otherwise than of her personalty by will), as if she were single; but the act of 1848, probably, did not remove the disability placed on married women by the Revised Statutes of disposing of their personalty by will (Wadams a. The American Home Missionary Society, 2 Kern., 415); nor have both acts removed the disability of coverture as to her property, so that she

Luling a. Stanton.

can bind herself personally as a feme sole by her contracts, and thus at law lead to an involuntary alienation of her property by judgment and execution. (Yale a. Dederer, recently decided by the Court of Appeals, not yet reported.)

These acts have not therefore in all respects removed the disability of coverture as to the property of married women. They have removed it, so far as it was for their benefit, and no further.

Before the personality of married women dying intestate can go to their next of kin, the exception of their estates from the statute of distribution must be repealed-who can say that the acts of 1848 and 1849 imply such repeal, or that such repeal would be for their benefit? So as to the phraseology of the act of 1849," and the same shall not be subject to the disposal of her husband, or liable for his debts;" the act was intended to protect the property of the wife against the husband and his debts in her lifetime. Of what consequence is it to her whether the property is sold for the debts of her husband, or of her next of kin, after her death?

For these reasons, which have been stated much more at large than I intended before I looked into the cases bearing on the construction of these acts, I am of the opinion that the decree of the surrogate in this case should be affirmed, with costs.

LULING a. STANTON.

New York Common Pleas; Special Term, January, 1859.

ACTION ARISING ON CONTRACT, FOR RECOVERY OF MONEY ONLY.FORM OF SUMMONS.

The provision of subdivision 1 of section 129 of the Code-which prescribes the form of the notice to be contained in a summons, in an action arising on contract for the recovery of money only-is to be applied only to contracts which, in terms, provide for the payment of money.

In an action to recover unliquidated damages for breach of a contract, the sum

Luling a. Staunton.

mons should contain the notice prescribed by subdivision 2, viz., that the plaintiff will apply to the court for the relief demanded by the complaint.*

Motion to set aside complaint for irregularity.

The complaint alleged that defendants agreed with plaintiff to take a shipment of three hundred hogsheads of tobacco, to be carried from New York to Bremen; that defendants failed to comply with the agreement on their part, by which plaintiff was put to expenses (specified in the complaint) in the storage of the tobacco and insurance, while waiting for another ship, loss of interest, &c. The complaint averred damages "in the sum of one thousand dollars, with interest," and demanded judg

ment for that amount.

The summons stated that if the defendant failed to answer the complaint, the plaintiff would apply to the court for the relief demanded.

The defendant now moved to set aside the complaint for irregularity, in departing from the summons in this respect, as stating a cause of action which could only be pleaded under a summons with the other form of notice.

B. F. Mudgett, for the motion.

Lane & Roelker, opposed.

BRADY, J.-The summons in this action is in the proper form. The action against a common carrier is usually an action for a wrong, and not strictly upon contract (per TAGGART, J., Campbell a. Perkins, 4 Seld., 430), and the claim made is composed of unliquidated damages. Such is the case here. The plaintiff states his damages distinctly and definitely, and asks judgment for the aggregate sum. It is his own estimate, however, and it is not provided for by the contract. The first subdivision of section 129 relates to contracts which in terms provide for the payment of money. This was the view of the late Justice Barculo (The Cemetery Board of Hyde Park a. Teller, 8 How. Pr. R., 505), and, in my opinion, is the true interpretation of the statute.

To the contrary effect is Cobb a. Dunkin, Supreme Court, Seventh District, Special Term, 1858 (17 How. Pr. R., 97).

Van Schaick a. Third Avenue Railroad Company.

The following cases sustain the opinion expressed of the proper form of the summons herein. (Tuttle a. Smith, 6 Abbotts' Pr. R., 329; S. C., 14 How. Pr. R., 395; Dunn a. Bloomingdale, 14 How. Pr. R., 475; S. C., 6 Abbotts' Pr. R., 340, note; McNeff a. Short, 14 How. Pr. R., 463; Clor a. Mallory, 1 Code R., 126; Flyn a. Hudson River Railroad Company, 6 How. Pr. R., 310.) The motion is therefore denied, but without costs, the authorities being somewhat in conflict on the question.

VAN SCHAICK ɑ. THIRD AVENUE RAILROAD COMPANY.

Supreme Court, First District; Special Term, May, 1859.

CAUSE OF ACTION. LIABILITY OF ASSIGNEE OF LEASE TO LESSOR.

The plaintiff leased certain real property to a third party, who toɔk as lessee, as agent for an association. The association, subsequently becoming incorporated, transferred all its property to the defendants the corporation, and caused the lease to be assigned to them, and the latter covenanted to do and perform all things which the association were bound to do.

Held, that the lessor could maintain an action against the corporation directly upon the covenants of the lease, and that they were liable for rent during the whole term, and not merely for the time during which they had been in possession as a corporation.

Trial by the court.

The action was brought by Myndert Van Schaick, to recover from the defendants rent upon a lease of premises demised to Henry Van Schaick, as agent or trustee for an association, which, by incorporation, afterwards became the corporation defendant, and to whom the lease had been transferred.

DAVIES, J.-If the defendants can be regarded as standing only in the position of assignees of the lease made by plaintiff to Henry Van Schaick, then they are not liable to the original lessee (the plaintiff) for rent which has accrued since they

Van Schaick a. Third Avenue Railroad Company.

ceased to have the possession of the demised premises. If they are only assignees of the lease, they are not liable for any breaches of the covenants of the lease since their assignment of the lease to Searles.

*

This court, in Carter a. Hammett (18 Barb., 608), held that "the only liability of the assignees at any time was the result of their possession, and was limited in its duration by the operation of that possession. * The rule in such cases isand it is founded on the principles of justice and implied, contracts that each successive party, other than the original lessee, is liable only by reason of, and for the term of his own possession. Possession is, therefore, both the foundation and the boundary of the liability."

Chancellor Walworth, in Childs a. Clark (3 Barb. Ch. R., 60), says, "It is perfectly well settled, however, that the assignee of a lease is only liable, as such assignee, for the rents which accrued or became payable, or for other covenants broken, while he was such assignee; and that he may discharge himself from all further liability by assigning his interest in the premises to a stranger, even if the assignee is a beggar, provided he actually relinquishes the possession of the premises and all interests therein, so that the assignment is not merely colorable or fraudulent. For as there is no privity of contract between the lessor and the assignee of the lease, the latter is personally liable only in respect to his privity of estate in the land, or in respect to covenants running with the land, for the rents which accrued and became payable after such privity of estate commenced, and before it terminated; that is, while he enjoyed, or had the right to enjoy the premises, or some part thereof, as an assignee of the lease." In support of these propositions, he cites Armstrong a. Wheeler (9 Cow., 88); Torrey a. Pitcher (Carth., 177); Likeux a. Nash (2 Stran., 1221); Taylor a. Shum (1 Bos. & Pul., 21).

The cases referred to fully sustain the positions of the chancellor, and the case in Strange further holds that it was no fraud in the assignee to assign to a prisoner in the fleet, to whom he lent five shillings to pay to him the foundation of the assignment.

It is clear, therefore, upon the authorities referred to, that if the defendants stand in the character of assignees solely, they