THERE are but few peculiarities in actions by husband When to sue and wife, and these have been already incidentally noticed in jointly or not. the course of the Work. In general, wherever the cause of action would survive to the wife, she and her husband ought to be joined in the action (a). Where, however, the cause of action arises during coverture, the husband is frequently allowed to bring the action in his own name, or in the joint names of himself and his wife (a). If a wife sue alone, the defendant may plead the coverture in abatement; or the coverture may be assigned by the husband for error upon a writ of error coram nobis (b). And if she marry after writ, and before plea, her coverture must be pleaded in abatement (c). If she marry after plea, the coverture should be pleaded puis darrein continuance(d). If she sue alone, without having any legal interest whatever, she would be nonsuited (e). If she sue jointly with her husband, when she ought not to have done so, the defendant may demur (f), or arrest the judgment (g), or bring error (h), if the defect appear on the pleadings, or, it should seem, nonsuit the plaintiffs at the trial if it do not. If the husband sue alone, when the wife ought to be joined,, the defendant may demur, move in arrest of judgment, or bring error if the defect appear on the pleadings(), or plead the defence specially, if it does not (k). In a late case where the plaintiff declared for an injury to his reversionary interest, and it appeared that he held the premises under a lease made to himself and wife, and had underlet them, it was objected that the wife ought to have joined in the action; but the Court of Exchequer held that there was no ground for the objection, and that even were it valid, it should have been taken by plea in abatement (7). (a) Dunstan v. Burwell, 1 Wils. 224: Swithen v. Vincent, 2 Id. 227; 1 Chit. Pl. 6th ed. 28, 72. See form of affidavit to hold to bail by feme, in an action brought by baron and feme, Chit. Forms, 210. (b) Milner v. Milnes, 3 T. R. 631: ante, Vol. I. 392. (e) Morgan v. Painter, 6 T. R. 265: 1 Chit. Pl. 6th ed. 33: see Hollis v. Freer, 2 Bing. N. C. 719. (d) Tidd, 9th ed. 849. (e) Candell v. Shaw, 4 T. R. 361; 1 Chit. Pl. 6th ed. 33. (f) Buckley v. Collier, 1 Salk. 114: (g) Abbott v. Blofield, Cro. Jac. 644. (k) Ante, Vol. I. 185, 186: Anon., 1 (1) Wallis v. Harrison, 7 Dowl. 595. PART II. BOOK III. Where the plaintiff had hired a house of the defendant, representing herself at the time to be a feme covert, and upon the faith of the like representation had obtained goods from various tradesmen, the court held that her assertion, that she was a feme covert, estopped her from suing as a feme sole, in respect of a trespass committed by the defendant, under colour of a distress for rent (m). Setting aside Release by Judgment. Where a wife, living apart from her husband under a deed of separation, brought an action as executrix in the joint names of her husband and herself, and the husband released the debt; the defendant having pleaded this release puis darrein continuance, the court ordered the plea to be taken off the record, and the release to be given up to be cancelled (n). The proceedings to judgment are the same as in other cases. Suing in HusAs to staying proceedings where the action is brought in the band's Name. husband's name without authority, see post, Book IV. Part I. Ch. 10. Sci. fa., Warrant of Attorney, &c. Execution. As to scire facias upon the death of a feme covert plaintiff, or upon the marriage of feme sole plaintiff, see ante, 824, and post, Book IV. Part I. Ch. 33; and as to warrants of attorney given to a feme sole, who marries before judgment, see ante, 691. The execution against the defendant is the same as in ordinary cases. As to the execution against husband and wife, see post, 897. Where to be or not. SECT. 2. Actions against Husband and Wife. IN bringing actions against husband and wife, the general sued jo ntly rule is, that, whenever the cause of action would survive against the wife, they ought to be sued jointly (o). Care should be taken not to bring an action against the wife without making the husband also a party, otherwise she may plead her coverture in abatement or bar, according to circumstances; or the coverture may be assigned by the husband for error (p), upon a writ of error coram nobis or vobis (q). This is the only course to be adopted where the wife is sued alone (r). But if the action be brought against her on her supposed contract during coverture, she may plead the coverture in bar(s). If the action be brought against a woman while sole, and she marry pending the suit, the suit will not be abated, and the plaintiff may proceed to execution without noticing the husband (t). If the husband be improperly sued alone, or the husband and wife be improperly joined, the defendant may, if the defect appear on the pleadings, demur, (m) Langford v. Foot, 2 Moo. & Scott, (0) Dunstan v. Burwell, 1 Wils. 224: (p) See forms, Chit. Forms, 146. (q) See Vol. I. 392. (r) Milner v. Milnes, 3 T. R. 631. (8) Ante, Vol. I. 185: James v. Fockes, 12 Mod. 101: Linch v. Hooke, 1 Salk. 7: 1 Chit. Pl. 6th ed. 59. (t) King v. Jones, 2 Str. 811: Cooper v. Hunchin, 4 East, 521: post, 897. move in arrest of judgment, or bring error(u); if it do not so CHAP. VIII. appear, he may plead the matter specially. SECT. 2. Process, &c.] In what cases a wife may be arrested upon Process, &c. process against her solely, or against her and her husband jointly, see Vol. I. 471. In an action against husband and wife, when the husband alone has been arrested, special bail may justify for him only, on his entering a common appearance for his wife (x). Where husband and wife were arrested, and the wife discharged out of custody upon entering a common appearance, and the plaintiff then declared against the husband alone, it was holden irregular (y). As to the service of non-bailable process upon husband and wife, see Vol. I. 115. In an action against the husband and wife, the husband may be outlawed and the wife waived (z). An attachment for nonpayment of costs will not be granted against the wife, though both are parties to the suit (a). &c. Appearance, &c.] If a feme corert be sued alone, she must Appearance, appear in person; for she cannot appoint an attorney (b). But if the husband and wife be sued jointly, they may appear by attorney; for the husband is capable of appointing an attorney for both (c). The other proceedings to judgment are the same as in ordinary cases. Execution.] As to the cases in which property belonging to Execution. the wife may or may not be taken in execution for the debt of the husband, see Vol. I. 430. on Ca. Sa. If a ca. sa. be sued out against husband and wife, the wife Where Wife may be taken on it, and the court will not discharge her(d); may be taken unless where she has no separate property out of which the against Both. demand can be satisfied (e), or there appears to be collusion between the husband and the plaintiff to keep her in custody (f); the general rule being, that the wife shall be discharged, if in custody, before execution, but not after it (g). Also, if the husband die before execution, and the action survive against the wife, she may be taken in execution, in the same manner as if the action were originally brought against her alone as a feme sole (h). Where a woman who was married at the time the action was brought was sued as a feme sole, and taken on a ca. sa., the court refused to relieve her on motion, and left her to her remedy by writ of error(). If an action be brought against a feme sole, and pending it Where feme she marry, it seems she may be taken on a ca. sa., and the Defendant (u) Mitchinson v. Hewson, 7 T. R. 348. (r) Coulson v. Scott, 1 Chit. Rep. 75. (y) Cattarns v. Player, 3 D. & R. 247. See Vol. I. 514. (3) See Tidd's Supplement, 63, and practice there stated, citing Smith v. Ashe, Cro Car. 58: Bac. Abr., Outlawry, C. 3. (a) Doe Allanson v. Caufield & Wife, 6 Dowl. 523. (6) Co. Lit. 135: Oulds v. Sanson, 3 Taunt. 261. (e) 2 Saund. 213: Vol. I. 49. (d) Roberts v. Andrews, 3 Wils. 124; 2 W. BL. 720, S. C.: Finch v. Duddin, 2 Str. 1237: Langstaff v. Rain, 1 Wils. 149: (e) Hoad v. Matthews, 2 Dowl. 149: (f) Sparkes v. Bell, 8 B. & C. 1; 2 M. & R. 124, S. C.: Pitts v. Meller, 2 Str, 1167: Tidd, 9th ed.: ante, Vol. I. 448. (g) Roberts v. Andrews, 3 Wils. 124; 2 W. Bl. 720, S. C. (h) 1 Ro. Abr. 890: 2 Bac. Abr., Execution, G. 4. (i) Moses v. Richardson, 8 B. & C. 421. PART 11. ing Action. BOOK III. court will not discharge her, unless perhaps where she has no separate property (j). The more regular mode of proceeding, marries pend- however, in such a case is, to sue out a scire facias, in order to make the husband a party, and then to issue execution against both (k). Moreover, on a fieri facias against the wife who married pending the action, it is irregular to take the goods of the husband (7). Other Proceedings. Other Proceedings.] As to a writ of error by feme covert, see Vol. I. 348, 350; and as to the abatement of a writ of error, by the marriage of a feme sole, plaintiff or defendant, see Vol. I. 355. As to scire facias upon the marriage of a feme sole defendant, see ante, 824; post, Book IV. Part I. Ch. 33. And as to warrants of attorney by a feme covert, or by a feme sole who marries before judgment, see ante, 691. (j) Evans v. Chester, 2 M. & W. 847; 6 Dowl. 140, S. C.: Doyley v. White, Cro. Jac. 323: Cooper v. Hunchin, 4 East, 521: King v. Jones, 2 Str. 811. (k) In Evans v. Chester, 2 M. & W. 847, 6 Dowl. 140, S. C., Parke, B., is reported to have intimated, that the husband may bring a writ of error on a judgment obtained under such circumstances against the wife.-It is submitted, however, that this observation of the learned baron applies only to cases where the defendant was married at the time of commencing the action, and not to cases where she marries pending the action; for, in the latter class of cases, the only way in which the plaintiff can have execution against the husband seems to be by proceeding to judgment against the wife, and then suing out a sci, fa, quare executionem non, against the husband and wife (ante, 824); but if the judgment be erroneous, he may be defeated of execution against either, by the voluntary act of the defendant in marrying pending the suit, which would be manifestly unjust. (See per Curiam, King v. Jones, 2 Str. 811: and see 2 Saund. 72). (1) Doe Taggart v. Butcher, 3 M. & Sel 557, 559. CHAPTER IX. ACTIONS BY AND AGAINST BANKRUPTS OR THEIR ASSIGNEES. SECT. 1. Actions by Bankrupts or their Assignees. In whose Name to be brought, | Declaration and subsequent Pro 899. Process, &c. 900. ceedings, 901. Costs, &c., 902. CHAP. IX. SECT. 1. brought. In whose Name to be brought.] FOR any debt due to the In whose bankrupt, and for injuries to his property, previous to his Name to be bankruptcy (m), the action must, of course, be commenced in the names of his assignees, that is, in the case of a town fiat the official assignee and the assignee chosen by the creditors, or the latter in the case of a county fiat. But if the bankrupt at the time of his bankruptcy had no beneficial interest in the contract or property injured,-as, if he had assigned all his interest in the contract or property to a third person,-then the action should be in the bankrupt's name (n). The consent of the creditors is not necessary to enable the assignees to bring such action (). All the assignees should sue, otherwise the defendant may plead in abatement, or perhaps nonsuit the plaintiff (p) in actions ex contractu, though in actions ex delicto he could plead in abatement only (7). When one of several partners becomes bankrupt, the action must be in the name of the solvent partner and the assignees of the bankrupt (r); and, upon petition, the assignees may be authorized to use the name of the solvent partner without his consent, provided such partner, if no benefit be claimed by him by virtue of the proceedings, be indemnified against costs; and upon petition it may be ordered that he shall receive his share of the proceeds of the action (s). Before assignees have been appointed by the creditors, it should seem the official assignee may sue (t). When a new appointment of assignees has been ordered, the new assignees are to sue (u). When an assignee (m) See Hancock v. Caffin, 8 Bing. 358; 1 Moo. & Scott, 521, S. C.: Wright v. Fairfield, 3 B. & Ad. 727: Arch. Bkt. L. 253. (n) Winch v. Keeley, 1 T. R. 619: Carpenter v. Marnell, 3 B. & P. 40: Dangerfield v. Thomas, 1 Per. & D. 287: see Mogg v. Baker, 3 M. & W. 195: Tibbits V. George, 6 Nev, & M. 804. (0) Bocon v. Williams, 2 Y. & J. 475. (p) Snellgrove v. Hunt. 2 Stark. 424; 1 Chit. Rep. 71, S. C.: Alldritt v. Kittridge, 6 Moore, 569: Arch. Bkt. L. 256. (g) 1 Chit. Pl. 6th ed. 66: Arch. Bkt. L. 256. (r) Thomason v. Frere, 10 East, 418: Eckhardt v. Wilson, 8 T. R. 140: Anon., 12 Mod. 446. (s) See 6 G. 4, c. 16, s. 89. (t) See Page v. Baner, 4 B. & Ald. 345. (u) 6 G. 4, c. 16, s. 66. See Bloxam v. Hubbard, 5 East, 407: 6 Moore, 569: Snellgrove v. Hunt, 1 Chit. Rep. 71: De Cosson v. Vaughan, 10 East, 61. |