the descent laws, between the interest of a feme covert, and that of any other heirs of the intestate. Those laws direct the commissioners, who have sold for cash, after the ratification of the sale, and the deduction of the expenses to be ascertained by the court, to divide justly the purchase money among the several persons interested, according to their respective titles to the estate; and when the estate is sold by the commissioners on a credit, bonds are to be taken by them for the purchase money, to each representative respectively, according to his or her proportional part of the nett amount of sales. The feme covert is treated like the other heirs, and it is to be presumed her. property, after sale, assumes the same character as theirs. The money is to be paid to her as heir in the one case, and the bond is to be passed to her in the other, according to the injunctions of the act of assembly. A change in the nature of her property is thus operated by the sale of the commissioners, but the point of time when the change takes place, is a question of interesting consequence to the relative rights of her and her husband. Upon this question the court have deliberated, and we think that the mutation of her estate from real to personal may be determined to be complete when the commissioners' sale is ratified by the court, and the purchaser has complied with the terms of it, by paying the money, if the sale is for cash, or by giving bonds to the representatives, if the sale is on a credit. The bond passed to the wife by the purchaser is a chose in action, as is the money in the hands of the commissioners, if withheld from her; both liable to be sued for and recovered by the husband at his pleasure. But a difficulty was urged in argument to the recovery of the money in this case by the husband, and it was said that the court, where the sale of the wife's land was effected, would not permit him to receive the proceeds of the sale, without making a provision for his wife. To this it is to be answered, that the distribution of the money appears to have been made by the commissioners, and not to have been brought into the county court; and it is admitted in the statement, that the money of Mary D. Horne is still in the hands of the commissioners, ready to be paid to the person best entitled to it. To recover the money of the commissioners in such a case, the husband's remedy would be by a suit in a court of law, and the principle seems to be a settled one, that wherever a husband can come at the estate of the wife, without the aid of the court of chancery, that court cannot interfere in her behalf. See Attorney-General vs. Whorwood, 1 Ves. 539. Hargrave & Thomas's Co. Litt. 310. In what light we consider a county court, ordering a sale of real property under the descent laws, we do not mean to suggest; it is enough for us to say, that in this case the money was not brought into Baltimore county court, and that that tribunal had not an opportunity of exerting its authority over the subject, either as a court of equity or as a court of law. We have already said, that where a bond has been passed to the wife, for the proceeds of the sale of her real estate sold by commissioners, or where a sale has been made for cash, and the money has been received and is withheld by the commissioners, the husband may sue for and recover those debts at pleasure, of the purchaser in the first case, and of the commissioners in the last. In the action in either case, he may join his wife with him, or the husband may sue alone at his election. That a husband may in his own name sue a bond passed to him and wife, or to the wife alone during coverture, there are many authorities to show, independent of the act 1798, ch. 101; and it is equally certain, that he may sue alone for a breach of promise made to him and his wife, after coverture, or to the wife only, to pay a sum of money to her. For the first position, see Ankerstein vs. Clarke, 4 T. R. 616, and Philliskirk vs. Pluckwell, 2 Maule & Selw. 396; and for the last, see Hilliard vs. Hambridge, Aleyn's Rep, 56, and Prat vs. Taylor, Cro. Eliz. 61. 1 Selw. N. P. 245. the husband may sue alone, where an express promise is made to the wife, after coverture, what good reason can be assigned why he could not sue in the same way on a promise to the wife raised by implication of law, as in this case, had it been against the commissioners for the money had and received by them? The express promise, and the promise implied, are of the same character, as to the husband's claims, and resting upon similar principles, they ought to be adjudicated on in the same way. Let the law be considered as settled, that the husband may sue in his own name for money situated as this is in the hands of the commissioners, and it seems to follow neces sarily, that it may be attached by the husband's creditor, to satisfy a debt due by him. If the commissioners and If 1823. Watkins Hodges &c. garnishess here had plead nulla bona on the trial of thờ issue, it would have been competent to the plaintiff to give evidence of the wife's money in their hands, and it would have been sufficient to have sustained his case. The money being at the disposal of the husband, is in truth and in law his, and is liable for his debts, and can never be enjoyed by the wife but upon the single contingency of her surviving her husband, before an appropriation is made of it by him. The judgment below we think ought to be reversed. JUDGMENT REVERSED JUNE Where there is a subsisting spe a Party to cannot WATKINS VS. HODGES and LANSDALE, APPEAL from Baltimore county court. Assumpsit by the gial akreement, à appellant against the appellees. The declaration containrecover on genes ed four counts: The first for goods sold and delivered. ral counts; he must declare on The second on a quantum meruit for goods sold and deliv the special agree ment, and that by ered. The third on an insimul computassent; and the ing the gist of the action, it must be stated in the dee-fourth on a special agreement. The last count is as fol Jaration. a special agree A declaration on lows, viz. And whereas heretofore, to wit, on the 3d of ment must state February 1815, the defendants bargained for and bought parts of the agree of the plaintiff, and the plaintiff, at the special instance ail the essential ment. ment formed an Where an agree and request of the defendants, then and there sold to the entire contract, to defendants, at the county aforesaid, a large quantity, to enable the plain then prove, wit, sixty hogsheads of tobacco, whereof 45,000 weight was it, must Perrone on to be crop and 15,000 weight second tobacco, at the rate tender to perform every thing re his part to be per If a contract be parties after its by the plaintiff, quired by it on or price of three dollars for every hundred weight of the fornied. crop or first quality tobacco, and, two dollars and fifty rescinded by the cents for every hundred weight of the second quality topart performance bacço, and also one dollar for each cask containing the recover same, to be delivered by the plaintiff to the defendants, formance on a ge- and inspected at Beard's warehouse in Anne-Arundel A subsequent county, viz. at the county aforesaid, on or before the tenth parol agreement to postpone the day of May then next ensuing, and to be paid for by the cles under a con- defendants on the twenty-fifth day of December then next he may eral count. delivery of arti tract without seal, is not a waiver of the contract, but ensuing; and in consideration thereof, and that the plainonly an enlarge tiff at the like special instance and request of the defenfor its pertor dants, had then and there undertaken, and faithfully pro ment of the time mance. nised the defendants, to deliver the said tobacco at the time and place aforesaid, they the defendants then and there undertook, and faithfully promised the plaintiff to accept the said tobacco of him the plaintiff, and to pay him for the same on the day aforesaid; and although the plaintiff afterwards, and before the tenth day of May then next ensuing as aforesaid, viz. on the fifteenth day of March, at Beard's warehouse in Anne-Arundel county, to wit, at the county aforesaid, did deliver to the defendants eleven hogsheads of crop tobacco, amounting in the whole to 10,259 weight, and ten hogsheads of second tobacco, amounting in the whole to 9025 weight of the same, together with 21 casks containing the same; and although the plaintiff was ready and willing, and then and there offered and tendered to deliver the balance or remaining part of said sixty hogsheads of tobacco, so as aforesaid contracted for, to the defendants, and then and there requested the defendants to accept the same; yet the defendants, not regarding their said promises and undertakings, did not, nor would, at the said time when they were so requested, or at any time before or afterwards, accept the balance or remaining part of the said sixty hogsheads of tobacco, of and from him the plaintiff, neither have they, nor either of them, paid the plaintiff for the whole of the said sixty hogsheads of tobacco, or for the twenty one hogsheads delivered to them, or for any part or parcel of said tobacco, but then and there wholly refused and neglected so to do, and do still refuse to pay the same. Nevertheless," &c. The general issue was pleaded, and at the trial the plaintiff proved the delivery of twenty-one hogsheads of tobacco, eleven of which were at three dollars, and the residue at two dollars and fifty cents per hogshead, on or about the latter part of March 1813. The defendants then offered in evidence a special agreement, which was admitted to be in the hand writing of the plaintiff, and is in these tvords: “I have this day sold to Messrs. Hodges and Lansdale 60 hogsheads of tobacco, (of my make and now on hand,) 45 thousand weight of it crop, and 15 thousand weight second, at $3 per hundred for the crop, and $21 , per hundred for the second, and one dollar for each cask, to be paid for on the 25th day of December next. The tobacco to be delivered and inspected at Beard's Point warehouse between this and the 10th of May next. 3 February, 1815. Nicholas Watkins, of Thos.” The defendants also offered in evidence the deposition of George Allen, taken by consent, who proved, "that early in April 1815, he was requested by Hodges and Lansdale to bring up in his boat the tobacco purchased by them of Nicholas Walkins; that they delivered to him a letter dated the 3d April 1815, directed to Watkins; that he according ly called on Watkins, and delivered the letter to him about three days after the date of it; that Watkins told the deponent, there were 21 hogsheads of tobacco at Beard's warehouse which he wished him to carry to Lansdale and Hodges, the balance of the tobacco purchased by them he could not deliver, being too busy at that time on the farm; that when the deponent returned he would haul him a load down; that the deponent expected to be back in about a week from that time, and the load would be from 40 to 43 hogsheads. This deponent further states, that when he was coming up, the British were in the bay, and were close behind him." The letter mentioned and referred to in the foregoing deposition, dated at Baltimore the 3d of April, 1813, and directed to the plaintiff, is hereinafter set forth. The defendants further offered in evidence the deposition of Richard Welsh, taken by consent, who proved, "that late in the fall of 1813, he was at the plaintiff's tobacco house, where he was getting out wheat; that whilst there, Wm. M. Lunsdale, one of the defendants, rode up, and requested the plaintiff to deliver the tobacco, or the balance of the tobacthis deponent does not precisely recollect which, and that the plaintiff replied that he could not deliver it, as he was busy in getting out his wheat, and that his family depended on that for their living." The defendants also proved, that a quantity of tobacco, about 40 hogsheads, was sold by the plaintiff at a much higher price in the spring of 1815. The plaintiff then offered in evidence the three following letters, admitted to be in the hand writing of the defendants, and addressed to the plaintiff, viz. 1st. “Baltimore, 9th March 1813. Dear Sir, We have authorised Mr. Harrison to send up your tobacco in his boat, and will thank you to deliver it to him as fast as possible. You wilk oblige us if you will carefully take the samples of all you have to inspect, and send them by the boat." 2d. "Baltimore Sd April, 1813. Dear Sir, We wish you to forward by capt. Allen as much of your tobacco as he can receive. As the balance of your crop is now to inspect, you wilf |