husband does not reduce his interest into possession during his lifetime, it will survive to the wife (u); but after the death of wife, husband must sue as administrator to his wife (x); for the rule of law is, that choses in action can only be put in suit by the party to whom they are given; or, after their deaths, by persons claiming jure representationis. Hence, if the husband, surviving his wife, does not, in his lifetime, reduce her choses in action into possession, although in equity those claiming under him are entitled to them, they must be recovered, not by his representatives, but the wife's; and they will take the property as trustees for the representatives of the husband (y). A married woman, being administratrix, received a sum of money in that character, and lent it to her husband, taking in return for it the joint and several promissory note of her husband, and two other persons, payable to her with interest; it was held, that although she could not have maintained any action upon the note during the lifetime of her husband, yet that, he having died, and the note having been given for a good consideration, it was a chose in action surviving to the wife, and that she might sue either of the other makers at any time within six years after the death of her husband, and recover interest from the date of the note (z). The assignees of a bankrupt may maintain an action in their own names only, for a chose in action belonging to the wife before marriage, e. g. a promissory note given to her dum sola; and in such action, the defendant cannot set off a debt due to him from the bankrupt (a). Where husband and wife have recovered judgment on a bond made to wife, dum sola, husband and wife may join in an action on such judgment; or husband may sue alone; for that which was before a chose in action, transit in rem judicatam, and is of another nature from what it was before the coverture (b). If it be referred to a master in Chancery to take an account of what is due to husband and wife, who reports the sum due, and appoints it to be paid to the husband, and the defendant is committed for non-payment, and escapes, the husband and wife may join in action against the warden for the escape (c). Quare impedit.--So where a right of presentation is in the husband jure uxoris, a quare impedit may be brought by the husband and wife jointly (d). Or the husband may sue alone, for the presentation only is recoverable and not the advowson, and the release of the husband would bar the action (e). (u) Gaters v. Madeley, 6 M. & W. 423. (x) Day v. Padrone, B. R. Trin. 13 & 14 Geo. II. 2 M. & S. 396, n., and Serjt. Hill's MSS. vol. 19, p. 290, and vol. 27, p. 172. (y) Betts v. Kimpton, 2 B. & Ad. 273. (z) Richards v. Richards, 2 B. & Ad. 447, recognized in Rose v. Poulton, 2 B. & Ad. 822. (a) Yates v. Sherrington, 11 M. & W. 42, recognizing Miles v. Williams, 1 P. Wms. 249, post, p. 353. (b) Woolverston v. Fynnimore, T. 18 & 19 Geo. II. C. B. MSS. (c) Huggins v. Durham, Str. 726. Replevin.-Baron and feme may be joined in the same declaration in replevin for goods distrained from the feme dum sola (f). If the goods of a feme sole be taken, and she marries, the husband alone may sue the replevin (g). In the replevin of goods which the wife has as executrix, husband and wife shall join, ut videtur (h). Avowry for rent arrear jure uxoris may be by husband and wife, or husband only, averring the life of feme (i). Tort. In an action upon the case for stopping a way to the land of the wife, husband and wife may join (k). So an action upon the case for cutting down trees, the lops of which were reserved to the wife for her life, may be brought by husband and wife jointly (l). In Weller and Wife and others v. Baker, 2 Wils. 414, an action was brought by the dippers at Tunbridge Wells, together with their husbands, against the defendant for exercising the business of a dipper, not being duly appointed and approved according to a private statute; it was held, that the action was well brought in the names of the husbands and wives. But where lands were demised to husband and wife for years, and the husband had granted an underlease, it was held, that the husband might sue alone for damage done to the reversion (m). Trespass.-Trespass was brought by the husband alone for hunting in a free warren, which he had in right of his wife, and it was adjudged good, for damages only are recoverable (n). It is immaterial as to the point in question, whether the interest of the husband is a joint interest with the wife, or an interest only in right of the wife. In the first and second cases in covenant before abridged, the husband had a joint interest with the wife. In the fourth case in covenant, two first cases in tort, and the case to which this remark is annexed, the husband had an interest only in right of his wife. Trover.-Where the inception of the cause of action is in the wife before marriage, and consummated afterwards, husband and wife may join, as in trover for a personal chattel of wife before, and conversion thereof after marriage (o). It must be observed, that, in all the preceding cases, where the wife is made a party, her interest ought to appear on the face of the declaration, for the court will not intend it upon demurrer (p), or even after verdict, according to the case of Abbott v. Blofield, Cro. Jac. 644. Sed quære, whether this case be law to its full extent; for in Bourn and Wife v. Mattaire, Bull. N. P. 53, and MSS., where husband and wife joined (f) Bro. Baron and Feme, pl. 85. (g) F. N. B. 159, K., cited in Bull. N. P. 53. (h) Bro. Baron and Feme, pl. 85. (i) Wise v. Bellent, Cro. Jac. 442; Osborme v. Walleeden, 1 Mod. 273. (k) Agreed in Baker and Wife v. Brere man, Cro. Car. 418. (1) Tregmiell and Wife v. Reeve, Cro. Car. 437. (m) Wallis v. Harrison, 5 M. & W. 142. in replevin, and defendant avowed for rent arrear, after verdict, it was objected, that the husband and wife could not have a joint property in personal chattels, after the marriage, and consequently the replevin ought to have been brought by the husband alone. Lord Hardwicke, C. J., delivering the judgment of the court, said that, although the ground of the objection was generally true, yet, notwithstanding, as a man and woman might have a joint property before marriage, or the wife might have the goods in question as executrix, and the taking might in both cases be before marriage, the court were of opinion, that they might declare jointly in an action for such taking. That if the law would admit of such joint action, the fact was admitted by the pleading. The defendant had not disputed with the plaintiff to whom the property belonged at the time of the taking, and therefore, if there could be a case in which husband might join with the wife in an action for a personal chattel, the court thought that, after verdict, this ought to be intended to be the case: Bro. Bar. and Feme, pl. 85, abridges a book case in 33 Edw. III. (but which is not to be found in the "Year Book," and was probably taken from some manuscript), wherein it is held, that husband and wife may join for such things as the wife has as executrix, or where goods are taken from her whilst sole. A declaration in replevin by husband and wife, where nothing appears on the face of the record whence the court can infer that the wife had an interest in the goods taken, is bad, on special demurrer. Serres and Wife v. Dodd, 2 N. R. 405. IV. Of Actions against Husband and Wife. In actions against the husband for the debts of the wife contracted before marriage, if the wife is not joined, advantage may be taken of the omission in arrest of judgment (q), and this rule holds, although an account has been stated with the husband, for that does not alter the nature of the debt (r). A woman occupied a house from Lady-day until the 8th of June, and then intermarried with the defendant and quitted the house, having on the Lady-day preceding given notice that she should quit at Michaelmas; an action for use and occupation from Lady-day to Michaelmas was afterwards brought against the husband; and it was held, that it would not lie; for there was no occupation by the husband for the former part of the half-year either in fact or in law (s). Assumpsit against husband and wife for goods sold and delivered to wife dum sola; promise by the wife: pleas, non assumpsit; non assumpsit by wife, dum sola, within six years; evidence for plaintiff, sale of goods by plaintiff to wife, dum sola, and payments by her within (q) Mitchinson v. Hewson, 7 T. R. 348. (r) Drue v. Thorne, Aleyn, 72. (s) Richardson v. Hall, 1 Brod. & Bingh. 50. six years; for defendants: that they were married more than six years before action brought: nonsuit: per Tenterden, C. J.; Burt v. Stobart and Wife, Middlesex Sittings, after M. T. 1 Will. IV. ex relatione Cresswell, counsel for defendant (t). To a declaration against husband and wife for debt due from the wife, before coverture, the husband's discharge under the Insolvent Act is a good plea (u); so also to a similar declaration is a plea, that the wife was discharged under the same act before coverture (x). As a husband de facto is liable to the debts of his wife, a plea of ne unques accouple en loyal matrimonie to an action brought against husband and wife, for the recovery of a debt due from wife before coverture, is bad (y). A husband cannot be charged at law for money lent to his wife, even for the purpose of buying necessaries; because it may be misapplied. If the money be laid out in necessaries, equity will consider the lender as standing in the place of the person providing the necessaries, and decree relief. Harris v. Lee, 1 P. Wms. 482. Preced. in Chan. 502, S. C., and Hutchinson v. Standly, Lord Bathurst, C., H. T. 1776, MSS. But a count. for money lent to the wife at the request of the husband is good, because a loan to the wife at the request of the husband is considered in law as a loan to the husband (2). The count, however, must state the money to have been lent to the wife at the request of the husband; for where the money was alleged to have been lent to the wife at the wife's request, it was held bad (a). "It is true that a complete or perfect contract cannot be made by a feme covert by her own authority; yet, by the assent of her husband, she may contract as his substitute, as in case either of sale or loan. This assent may be either express or implied; it may be prior or subsequent to the contract. If prior and communicated to the defendant, the contract made is an actual contract, and not merely virtual with the husband; if subsequent, then the wife's contract is inchoate and imperfect, until affirmed by the husband; and such affirmation, if given, transfers the contract to him." Per Blackstone, J., in Stevenson v. Hardie, 2 Bl. R. 873. So where the plaintiff declared, that the defendant was indebted for meat, &c., found by the plaintiff at the defendant's request, and on evidence it appeared to be found for the defendant's wife, at his request, in his absence; upon a case reserved, it was held, that a delivery to the wife, at the husband's request, was in law a delivery to the husband (b). If a declaration against husband and wife, for a debt of the wife contracted before marriage, allege a promise of the wife, made after the marriage, to pay the debt, it is bad (c). If an action is brought (t) See also Neal v. Hollands, 21 L. J., Q. B. 289. (u) Lockwood v. Salter, 5 B. & Ad. 303. (x) Storr v. Lee, 9 A. & E. 868; 1 P. & D. 633. (y) Norwood v. Stevenson, Andr. 227. 2 Bl. R. 872, S. C. (a) Stone v. Macnair (in error), 7 Taunt. 432. (b) Ross v. Noel, Bull. N. P. 136. (c) Morris and Wife v. Norfolk and another, 1 Taunt. 212. against husband and wife on a bond given by the wife dum sola, the defendant may plead the bankruptcy of the husband after the intermarriage, &c. as a discharge of the debt (d). Husband and wife cannot maintain an action of trover, and allege the possession in them both; for the law transfers the whole interest to the husband: but trover may be maintained against husband and wife; for the gist of the action is the conversion, which is a tort, with which a feme covert may be charged, as well as with trespass (e). Where the injury is not of such a nature as must necessarily have been done by the husband alone, the wife may properly be joined (f). Hence husband and wife may be jointly sued in trespass for their joint act in assaulting and taking the plaintiff into custody on a false charge (g). Trespass against J. G., widow, and pending the suit she took husband; after judgment a writ was directed to the sheriff quod caperet J. G. ad satisfaciendum, upon which the sheriff took J. G., whose husband, together with her, thereupon brought an action for false imprisonment against the sheriff, who justified under the ca. sa. On demurrer, the court gave judgment for the defendant, observing, that if an action be brought against a feme, who before judgment takes husband, yet, if she be found guilty, the ca. sa. shall be awarded against her, and not against her husband (h). In like manner, after interlocutory judgment in assumpsit against a feme, who afterwards marries, the plaintiff, even after notice of the marriage, may proceed to final judgment, without joining the husband, and sue out execution thereon against the feme only; and such execution cannot be set aside for irregularity (i). So where an action is brought by a feme sole, who marries after the commencement of the suit but before trial, it is not necessary to sue out a scire facias to make the husband a party to the suit (k). Judgment was obtained against a feme sole, who afterwards married, and then the plaintiff brought a sci fa. against husband and wife, and had judgment thereon: then the wife died, and the plaintiff afterwards brought another sci. fa. against the husband alone: it was held, on writ of error, that the second sci. fa. was well brought, on the ground that the judgment on the first sci. fa. had made the husband liable (1). In delivering the judgment of the Court of Exchequer in a recent case, Pollock, C. B., said, "The wife is responsible for all torts committed by her during coverture, and the husband must be joined as a defendant. They are liable, therefore, for frauds committed by her on any (d) Miles v. Williams, 1 P. Wms. 249; said by Lord Hardwicke, in 2 Vesey, 181, to be truly reported, and recognized in Yates v. Sherrington, 11 M. & W. 42; ante, p. 349. (e) Draper v. Fulkes, Yelv. 165; Anon., 1 Vent. 24. (f) Per Tindal, C. J., in Vine v. Saunders and Ux., 4 Bingh. N. C. 101; 5 Sc. 359, recognizing Bayley, J., in Keyworth v. Hill, 3 B. & A. 685. (g) Ib. on demurrer to declaration. (h) Doyley v. White, Cro. Jac. 323. (i) Cooper v. Hunchin, 4 East, 521. See 3 M. & S. 557. (k) Walker v. Golling, 11 M. & W. 78. (1) Obrian v. Ramm, Carth. 30. See the record, 3 Mod. 170. A A |