I. PLAINTIFFS. 8. Marriage. (1). Where the husband has been abroad, and not heard of for seven years, his death will be presumed (c). All chattels personal of the wife, in posession, are by marriage abso[ 29 ] lutly given to the husband, and for the recovery of them he may sue alone (d); and in a late case where a bill of exchange was payable to a feme sole, who intermarried before the same was due, it was held, that the husband might sue in his own name without joining his wife, although the latter had not indorsed the bill, such a bill or note not being a mere chose in action (e). And it is a general principle, " that that which the husband may discharge alone, and of which he may make disposition to his own use, for the recovery of this he may sue without his wife” (ƒ). As mere choses in action of the wife do not by the marriage vest absolutely in the husband until he reduce them in possession, and if not reduced into possession, she would take them by survivorship, in general he cannot sue alone (2), but must join his wife in all actions upon bonds, and other personal contracts, made with the wife before the marriage, whether the breach were before or during the coverture; and also for rent or any other cause of action accruing before the marriage, in respect of the real estate of the wife (g) (3). There are, indeed, decisions and opinions which appear to (f) Per Dodderidge, J. in 3 Bulst. 164; recognized in 1 B. & Ald. 224. (g) 3 T. R. 631; 1 M. & Sel. 180, 181, Com. Dig. Bar. & Feme, V.; Bac. Abr. Bar. & Feme, K.; 1 Roll. Ab. 347, R. pl. 3; 2 Ves. 676, 677; Bul. N. P. 179; 10 Ves. 578; 3 Mod. 186; 2 Wils. 423; 1 Hen. Bla. 109; 1 B. & Ald. 222, 223. band, which she may have acquired by her own industry, or which may have been given her by devise or otherwise, or may have come to her, or to which she may have been entitled by the decease of any relative intestate;) at the time of pronouncing the decree; for which she may sue the defendant (the husband) in her own name. Sess. 36. c. 102, s. 6. 2 R. L. 199. For the several Acts of Assembly in Pennsylvania, see Purdon's Digest, p. 128, and notes. (1) See Wright v. Wright, 5 Desaus, 244; Cornwall v. Hoyt, 7 Conn. 420; Troughton v. Hill, 2 Hayw. 486; Robinson v. Reynolds, 1 Aik. 174. Mr. Chancellor Kent, 2 Kent (5th ed.) 154, in reference to this point, remarks, that "Lord Coke seems to put the capacity of the wife to sue as a feme sole, upon the ground, that the abjuration or banishment of the husband amounted to a civil death. But if the husband be banished for a limited time only, though it be no civil death, the better opinion is, that the consequences as to the wife are the same, and she can sue and be sued as a feme sole." See Ex parte Franks, 1 Moore & Scott, 1. In Robinson v. Reynolds, 1 Aiken, 174, this point was considered and the English cases ably reviewed; but the question was by this case still left unsettled whether transportation or banishment of the husband by law, for a limited time only, would be suffi cient to give the wife the capacity to sue and be sued as a feme sole. It seems, however, from the case of Foster v. Everard, Craw. & Dix, 135, that a feme covert, whose husband has been transported for a limited term of years, will not be allowed to sue in equity as a feme sole. (2) Morse v. Earle, 13 Wend. 271. See, however, Cornwall v. Hoyt, 7 Conn. 420. In all actions for choses in action due to the wife before marriage, the husband and wife must join. The true rule is, that in all cases where the cause of action by law survives to the wife, the husband cannot sue alone. Clapp v. Inhabitants of Stoughton, 10 Pick. 463. (3) Decker v. Livingston, 15 Johns. 479; Morse v. Earle, 13 Wend. 271. It is well settled that the husband cannot be sued alone, upon a contract of the wife when sole and before marriage. 15 Johns. 403, 402, 8 ib. 150. Neither should he be permitted to prosecute alone upon such a contract. Reeve Dom. Rel. ch. 10, p. 126. As a husband cannot maintain a suit in his own name, to recover a demand which accrued to his wife before marriage under a contract made with her, the wife must be joined in the action. sole, the party militate against this rule (h); but the current of authorities seems fully to I. PLAINTIFFS, 8. Mar riage. In general, the wife cannot join in an action upon a contract made *dur- [ 30 ] ing the marriage, as for her work and labor, goods sold, or money lent by her during that time (p); for the husband is entitled to her earnings, and they shall not survive to her, but go to the personal representatives of the husband and she could have no property in the money lent or the goods sold (q). But when the wife can be considered as the meritorious cause of action, as if a bond or other contract under seal, or a promissory note, be made to her separately, or with her husband (r), or if she bestow her personal labor and skill in curing a wound, &c. (8), she may join with the husband, or he may sue alone (2). (h) 3 Lev. 403; Selw. N. P. 285, 5th edit.; Co. Lit. 351 a, 396, n. 2; 7 T. R. 319; 1 Vern. 396. (i) 1 M. & Sel. 176; 2 Freem. 160; Bac. Abr. Baron & Feme, K.; 15 Ves. 495; 1 B. & Ald. 222, 223. (k) 7 T. R. 348. (Vin. Ab. Bar. & Feme, Q. 22; Com. Dig. Bar. & Feme, V. (m) 1 M. & Sel. 180; 4 T. R. 616; 1 Salk. 117; Ld. Raym. 368. (n) See id.; Cro. Jac. 110; Yelv. 89; 1 Saund. 210. East, 472. Where the wife is separated (1) Id. ibid.; Cro. Jac. 644; 2 Wils. 424; (r) 3 Lev. 403; Stra. 230; 4 T. R. 616; Co. Lit. 351 a, note 1, 120; 2 M. & Sel. 393, 395. (s) 2 Sid. 128; Cro. Jac. 77; 2 Wils. 424. See Bac. Abr. Bar. & Feme, K. So also where a husband performs the stipulations of a contract entered into by his wife before marriage, which if performed by her whilst sole would have given her a right of action, the action for the recovery of a demand thus arising must be brought in the joint names of husband and wife. Morse v. Earle, 13 Wend. 271. (1) So, where a wife is guardian in socage. Byrne v. Van Hoosen, 5 Johns. 66. (2) A gift or bequest to the wife is in effect a gift or bequest to the husband, and he cannot be deprived of it, without an unequivocal intention manifested by the donor or the testator, that he is to have no interest or part in it. Evans v. Knorr, 4 S. & R. R. 66. Marriage is an absolute gift to the husband of the wife's personal chattels in possession ; and so it is also of choses in action, if he reduce them into possession by receiving or recovering them at law. Commonwealth v. Manly, 12 Pick. 173. 8 ib. 218. But a legacy given to the wife, and to be paid to her when she is divorced from her husband or voluntarily withdraws from him; held, that she became entitled to the legacy for her sole and separate use, without the intervention, and beyond the control of her husband. Perry v. Boileau, 10 S. & R. 208. If a bond or obligation be made to husband and wife, the wife I. 8. Mar riage. Where the wife is joined in the action, in these cases the declaration PLAINTIFFS. must distinctly disclose her interest, and show in what respect she is the meritorious cause of action, and there is no intendment to this effect (1). In the case of a bond or note payable to her or to her husband and herself, it would sufficiently appear from the instrument itself, as set out in the declaration, without further averment, that she had a peculiar interest, justifying the use of her name as a plaintiff (u). But care should be taken that the declaration does not embrace a cause of action which affords the husband only a right to sue. Therefore where husband and wife declared for a debt due for a cure effected by the wife during their marriage, and the declaration also contained a charge for medicines supplied, " upon general demurrer it was objected that the wife could not join, for that she was not the sole cause of action, because the medicines were the husband's own property, and the damages could not be severed, and of that opinion was the Court" (x). A feme covert executrix must join in an action upon an implied promise in respect of the estate of the deceased; as if money, part of the assets of the testator, be received by a party after the coverture, the husband cannot, it seems, sue alone in assumpsit, as for money had and received to his use, but he and his wife should join, and declare in the character of exccutrix (y). For rent, or other cause of action accruing during the marriage, on a [31] lease or demise, or other contract relating to the land or other real "property of the wife, whether such contract were made before or during the coverture, the husband and wife may join or he may sue alone (z) (1). When a lease, for years has been granted to husband and wife, and the lessor evicts them, they may join, or the husband may sue alone (a); and in all actions for a profit, &c. accruing during coverture in right of the real estate of the wife, they may join, or the husband may sue alone, as in debt, for not setting out tithes payable to the wife (b). The effect of joining the wife in an action when the husband might sue alone is, that if the husband die whilst it is pending, or after judgment, and before it is satisfied, the interest in the cause of action will survive to the wife, and not to the executors of the husband, though if he sued alone (t) 2 Bla. Rep. 1236; 2 M. & Sel. 396. In replevin by husband and wife for taking their goods, it may perhaps be presumed af ter verdict, though it would not be so on demurrer, (2 New Rep, 405), that the taking was before coverture, and that they then were jointly possessed, or that she was entitled as executrix, &c. in either of which cases she might be joined, post. (u) 2 M. & Sel. 393, 396. (x) Holmes and wife v. Wood, cited in 2 Wils. 424, noticed by Lord Ellenborough in 3 M. & Sel. 396. V. (y) 1 Salk. 282; Com. Dig, Bar. & Feme, (z) Stra. 229; 1 Wils. 224; Com. Dig. Bar. & Feme, X. Y. (a) Bro. Abr. Bar. & Feme, pl. 25; 2 Mod. 517; Cro. Jac. 399; Bulst. 163. (b) Com. Dig. Bar. & Feme, X; 2 Wils. 423, 424; Cro. Jac. 399; Cro. Eliz. 608. would have it by survivorship. Thus, where the plaintiff's intestate joined in a conveyance of the wife's land, and the grantee executed a promissory note to the husband and wife together with a mortgage as collateral security. Upon the death of the husband and marriage of the wife with the defendant, who was sued in trover for a conversion of the note; but the court decided that the plaintiff was not entitled to recover; because the wife had it by survivorship. Draper v. Jackson, 16 Mass. 480. (1) See Smith v. Talcott, 21 Wendell, 202. In ejectment to recover the wife's land, husband and wife must be joined in the declaration. Atkinson v. Rittenhouse, 5 Barr, 103. she would have had no interest (c). A feme covert, being a sole trader, according to the custom of London, can only sue and be sued in the city courts, and even there the husband must be joined for conformity (d) (1). If a right accrue or injury be committed to a feme covert whilst living separate from the husband, an indemnity should be tendered to the husband against costs, after which, even without his consent, an action may be brought in his name, either separately or jointly with his wife, according to the then circumstances of the case (e); but the indemnity should be previously tendered, or the court might stay proceedings (f). If the husband survive (g) there is a material distinction between chattels real and choses in action. The husband is entitled to the chattel real by survivorship, and to all rent, &c. accruing during the coverture; he is also entitled to all chattels given to the wife during the coverture in her own right (h), though not to her rights in autre droit (i). But mere choses in action, or contracts made with the wife before coverture, do not survive to the husband, and he must, to recover the same, sue as administrator of his wife, (k) (2). So the administrator of a husband, who survived his wife, and died without taking out administration to her effects, cannot recover her (c) Co. Lit. 351 a, n. 1; Cro. Jac. 77. Com. 433 to 436; Co. Lit. 351, n. 1; Com. 205; Bl. Rep. 1236. (d) 2 B. & P. 98; 4 T. R. 361. (e) Chambers v. Donaldson, 9, East, 471; 4 Bar. & Ald. 419, post. (f) Morgan and wife v. Thomas, 2 C. & M. 388. (g) As to the effect of survivorship in general between baron and feme, see Bac. Abr. Executors and Administrators, H. 4; 2 Bla. Dig. Bar & Feme, F. 1, E. 2, 3, Z. (2 A.) (i) Ib. Ibid.; 4 T. R. 616, 1 Roll. Ab. (k) Com. Dig. Bar. & Feme, E. 3; 2 Bla. Com. 435; 3 Mod. 186; 2 Ves. sen. 676; Rep. temp. Talb. 173; Co. Lit. 351, n. (1) Aliter in Pennsylvania. Act of 22d Feb. 1718, sect. 1. Purd. Dig. 298. 1 Sm. Laws, 99. A husband cannot convey an estate by deed to his wife. Martin v. Martin, 1 Greenl. 298. Post-nuptial contracts are sanctioned upon the principle that the convenience and interest of families require such exchanges. Thus, it was held that a conveyance made in trust for the wife, after marriage, upon the transfer to him by the wife, of an equivalent out of her property, will be established both at law and in equity. But such contracts must be honest; not feigned or pretended. Bullard v. Briggs, 7 Pick. 533. (2) Although the husband cannot sue for a debt due his wife, dum sola, after her death, without obtaining letters of administration, yet the necessity of doing this has relation merely to the mode and not to the right of reducing her choses in action into possession; the right to them resides in no other person; if he gain possession of them without suit, his title is as perfect as though he had taken out letters of administration; if he die without reducing them into possession, the right to them survives to his, and not the wife's representatives, and if any other person obtain the possession, he can hold only as trustee for the husband or his representatives. Whitaker v. Whitaker, 6 Johns. 112. Co. Lit. 351 a, n. 1. See, however, Cornwall. Hoyt, 7 Conn. 429. Reach . Norton, 8 Conn. 71 Griswold v. Penniman, 2 Conn. 564. Where a legacy had been left to the wife, and the husband had been absent, so that the wife obtained a divorce dissolving the ties of matrimony; held, that the wife was entitled to the legacy. Wintercast. Smith, 4 Rawle, 177. In the case of Goddard v. Johnson, 14 Pick. 352, it was decided that a husband may sue in his own right, after the death of his wife, for a legacy accruing to the wife during the coverture. In this case the court said, "we think the husband might have sued alone, had the wife been still living, and consequently that the action may be sustained. It is a well settled principle, that a chose in action accruing to the husband and wife during coverture, vests absolutely in the husband." In Hapgood v. Houghton, 22 Pick. 480, the court confirmed the above decision. See Sawyer v. Baldwin, 20 Pick. 378; Davis v. Newton, 6 Metcalf, 543, 545. For a full collection of the cases upon this subject, see 1 Daniel Ch. Pr. (1st Am. ed.) 149, note (1); Parsons v. Parsons, 9 N. Hamp. 309; Blunt v. Restland, 5 Sumner's Vesey, 515, Perkins' note (a); Strong v. Swift, 1 Metcalf, 476; Wallace v. Taliaferro, 2 Call, 447; Irvine v. Divine, 7 Monroe, 246; Hayward v. Hayward, 50 Pick. 517. 1. PLAINTIFFS. 8. Mar riage. I. choses in action, and for the latter purpose administration must be taken PLAINTIFFS. out to the wife (1). And he may sue as administrator on a bond to his wife 8. Mar riage. "during coverture (m). And if pending an action by husband and wife for such chose in action, the wife die, the suit abates (n); but if they obtain judgment, he may, notwithstanding her subsequent death, issue execution, or support an action of debt on such judgment (o). He is entitled to sue. or distrain for arrears of rent which became due in the life-time of his wife, from persons who were tenants of her freehold property (p). But the husband cannot sue for arrears of rent accruing after the death of his wife, on a lease of her land by himself and wife under seal during coverture in which the lessee covenanted with the husband and wife and the heirs of the wife (q). If the wife survive, she is entitled to all chattels real which her husband had in her right, and which he did not dispose of in his life-time, and to arrears of rent, &c. which became due during the coverture, upon her antecedent demise, or upon their joint demise (r), during the coverture to which she assents after his death; and to all arrears of rent and other choses in action to which she was entitled before the coverture, and which the husband did not reduce into actual possession (s). She also takes by survivorship a debt due upon a judgment recovered by husband and wife (1), whether obtained for a debt due to the wife whilst sole (t), or upon a contract made with the wife during coverture, where she is the meritorious cause of action (u); and she is entitled to a bond given to her and her husband (x), or to her alone (y), she is also entitled to all rights of action in autre droit as executrix or administratrix (2). And where, during coverture of an administratrix, her husband joined with two sureties in a note for money lent to the husband, out of the estate vested in the wife as administratrix, it was held, that after the death of her husband she might sue the other two parties to the note (a). In all these cases where the wife is joined in the action, if the husband die pending the suit, it will not abate, and the wife may proceed to judgment and execution, the death of the husband being suggested upon the record (b) (2). And when a feme executrix marries a debtor to the testator; the right of action is only suspended during the coverture, and if she survive, she may, in her character of executrix, sue the executrix of her husband (e). But if the husband made a separate. demise of the wife's land, his executor will be entitled to the rent which became due before his death, and not his surviving wife (d). (1) Betts v. Kempton, 2. B. & Adol. 573. Com. 434; 2 Ves. sen. 676; 1 Vern. 396. (m) 2 M. & Sel. 396, 397. (n) 6 B. & C. 253. (0) 3 Mod. 189, notes (g), (h). (P) 32 Hen. 8, c. 37, s. 3. (4) 2 Bingh. 112; 4 B. & C. 529, S. C. in error. (u) 2 Bla. Rep. 1239; Cro. Jac. 77, 205; Co. Lit. 351 a, n. 1; 1 Vern. 396. (x) 2 P. W. 496. (y) 2 M. & Sel. 396, 397, n. b. (z) 4 T. R. 616; Com. dig. Bar. & Feme, 1. F.(a) Richards v. Richards, 2 Bar. & Adol. (r) Not if the husband demise alone. (s) 1 Roll. Ab. 350; Co. Lit. 351 a; Com. (t) Com. Dig. Bar. & Feme, F. 1; 2 Bla. (b) 8 & 9 W. 3, c. 11, s. 7; Rep. temp. Hardw. 397 to 399. (c) Cro. Eliz. 114; 3 Atk. 726, (1) Gibson v. Todd, 1 Rawle, 452. Hammick v. Bronson, 5 Day, 290. (2) Vide Schoonmaker v. Elmendorf, 10 Johns. 49. Vaughan v. Wilson, 4 Hen. & Munf. 452. |