to conclude "to their damage," and not "to the damage of the husband";" for the damages will survive to the wife, if the husband die before they are received. So where action is brought for words in themselves actionable [spoken of the wife] and no special damage laid, then such conclusion is right; for the action survives. S 2. Where the Husband must sue alone.-Where the wife cannot maintain an action for the same cause, if she survive her husband, the action must be brought by the husband alone as in the case of an action of indebitatus assumpsit for the labour, &c. of the wife, during the coverturet; for, in contemplation of law, the wife is considered as the servant of the husband, and he is entitled to her earnings, and such earnings shall not survive to the wife, but go to the personal representative of the husband (6). So in an action on the q Horton v. Byles, 1 Sidf. 387. r Judgment arrested for this conclusion, in Newton and Ux. v. Hatter, Lord Raym. 1208. s Grove and Ux. v. Hart, Tr. 25 G. 2. Eull. N. P. 7. t Buckley v. Collier, Salk. 114. and plaintiff's house, and beating his servant, without adding, "per quod servitium amisit;" for, then it is considered as a continuation of the first trespass. Russell v. Corne, Ld. Raym. 1031. Salk. 119. 6 Mod. 127. S. C. So where in an action of assault and battery by husband and wife, it was stated in the declaration, that the defendant assaulted the wife, and driving a coach over her, bruised her and " by reason thereof," the husband laid out divers sums of money in the cure, &c. After verdict for plaintiff, with entire damages, it was holden, on motion in arrest in judgment, that the gist of the action was the beating of the wife, and the expenses incurred by the husband were only in aggravation of damages; and Powell, J. observed, that if these had been omitted in the declaration, yet the surgeon's bill might have been given in evidence, in aggravation of damages. Todd v. Redford, 11 Mod. 264. See also Dix v. Brookes, 1 Str. 61. (6) It may here be observed, that, although the law will not imply a promise to the wife, yet where the wife is the meritorious cause of the action, that is, where the defendant has derived profit or advantage from her labour or skill, and an express promise of remuneration is made by the defendant to the wife, if, in such case, an action is brought by the husband and wife jointly, and it is expressly stated in the declaration, that the promise was made to the wife, an objection cannot be raised to such declaration, merely on the ground of the wife having been joined; because contracts made by the wife, with the assent of the husband, are valid, and the bringing the action in their joint names is a declaration of such assent t; and in this case the action would survive to the wife. Brashford v. case for words", not actionable in themselves, spoken of the wife, whereby the husband sustains special damage, the husband must sue alone. So in actions for injuries committed during coverture to personal chattels, which by law are vested in the husband; as in trespass for cutting down and carrying away corn, although it grew upon the wife's land: for it grows by the industry of man, and consequently the property thereof is in the husband alone (7). In all cases where the wife shall not have the thingy, when it is recovered, either solely to herself, or jointly with her husband, but the husband only shall have it, there the husband shall sue alone. An action on the case was brought by A. and B. his wife for the use and occupation of a messuage and lands, and for money had and received to the use of the husband and wife, stating the promises to husband and wife; after judgment by default, writ of inquiry executed, and final judgment in B. R., a writ of error was brought in the Exchequer Chamber, assigning for error, that judgment was given for the husband and wife to recover their damages, whereas it appeared on the record, that B. was the wife of A. and could not sustain any damage by reason of any thing contained in the declaration; the court were of opinion, that the judgment was erroneous, because a contract could not be made with a married woman; that a promise, either express or implied, did not give any interest to her; the whole resulted to the husband, and the action ought to have been brought in his name. (8). The counsel for the defendants in error having urged, u Coleman and wife v. Harcourt, y 1 Rol. Abr. 347. (Q.) pl. 5. z Bidgood v. Way and wife, on error, in Ex. Chamb. 2 Bl. R. 1236, cited in Morris v. Norfolk, 1 Taunt. 214. Buckingham, in error, Cro. Jac. 77, 205. Care, however, must be taken, that the declaration does not embrace any other cause of action accruing to the husband alone; for if it does, it will be bad. Holmes and wife v. Wood, cited by the court in Weller v. Baker, 2 Wils. 424. (7) Husband and wife being seized of land in right of wife may join in trespass, quare cl. fregit, et herbam ibidem crescentem consumpsit et asportavit, because the grass is the natural produce of the earth, and shall continually go with the land. Willy v. Hanksworth, B. R. M. 3 G. 2. MSS. and cited by the court in Weller v. Baker, 2 Wils. 424. (8) Lord Ellenborough, C. J. speaking of this report in Ord v. Fenwick, 3 East, 106, said that the declaration was not stated sufficiently explicit; that it did not appear whose lands had been used and occupied, whether the husband's or wife's. that, if an impossible assumpsit was stated in the declaration, it might quoad her be surplusage, as much as if she had been a stranger; the court said, the insertion of the wife could not be surplusage, for it created an interest in her, and entitled her to damages by survivorship. Where a debtor to the wife as executrix promises to pay the husband in consideration of his giving time for payment, the husband ought to sue alone, because the wife is not a party to the agreement between her husband and the defendanta; but in this case the life of the wife must be averredb: N. The recovery by the husband will amount to a devastavit pro tanto. Per Holt, C. J. Carth. 463; but per Rokeby, J. assets at law. 3. Where the Husband and Wife may join, or the Husband may sue alone at his Election.-In personal actions for the recovery of damages only, (other than actions in respect of personal wrongs to the wife,) where the action will survive to the wife (9), the husband and wife may join; or the husband may sue alone, for he alone may release such action (10). Assumpsit. In an action for a breach of promise made to husband and wife after coverture, to pay a sum of money to the wife, husband and wife may joind. So where a promise is made to the wife onlye. Covenant.-Where a lease is granted to husband and wife for a term of years, and the lessor ousts them, husband and wife may join in action of covenant. Queen Elizabeth, by letters patent, demised a house to A. for years, who covenanted to repairs, and afterwards, during the term, the queen granted the reversion to husband and wife, and to the heirs a Yard v. Eland, Lord Raym. 368. Salk. 117. Carth. 462. S. C. b Lea v. Minne, Yelv. 84. Cro. Jac. 110. c Per Cur. 2 Mod. 270. d Hilliard v. Hambridge, Aleyn, 36. e Prat v. Taylor, Cro. Eliz. 61. 1 Rol. Abr. 32. pl. 12. f Bro. Baron and Feme, pl. 23. g Brett v. Cumberland, Cro. Jac. 399. Buls. 163. S. C. (9) In Frosdike v. Sterling, 1 Freem. 236, North, C. J. said, "that he always took it for an unquestionable rule, that, wheresoever, in case the husband should die, the action would survive to the wife, there the wife might join, but on the other side, the husband may join the wife in many cases where he is not bound to join her, but may have the action alone." (10) "What the husband alone may discharge, and of which he may make disposition to his own use, he may recover alone without joining his wife in the action.” Per Doddridge, J. to which Coke, C. J. assented, and said it was a true and good ground. 3 Bulst. 164. of the husband in fee: the house being out of repair, the husband alone brought covenant, and it was holden well, although the interest of the feme appeared on the face of the declaration (11). Covenant will lie by husband and wife for non-payment of rent, due by virtue of a lease granted by husband and wife of lands, the inheritance of wife. Husband alone may bring an action on a covenant made to himself and his wife, for, although the covenant be made to both, yet he may refuse quoad heri. In this case, North, C. J. said, that he remembered an authority in an old book, that, if a bond be given to baron and feme, the husband shall bring the action alone, which shall be looked upon to be his refusal as to herk. Debt. So if a bond be given to husband and wife administratrix1, husband may sue alone, declaring on it as a bond to himself. In debt on bond made to husband and wifem, both may join; or the husband may disagree to the wife's right to the bond, and bring the action in his own name only; but, until such disagreement, the right to the bond is in both the husband and wife, and shall survive; hence, if the husband dies, the wife shall have the bond, and not the personal representative of the husband. So in debt on bond made to the wife during covertureP, or in assumpsit on a promissory note given to the wife during coverture, husband and wife may join: or husband may sue alone (12); but after the death of wife, husband must sue as administrator to his wife; 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. h Aleberry v. Walby, Str. 230. i Beaver v. Lane, 2 Mod. 217. k Cited by Buller, J. 4 T. R. 617. 1 Ankerstein v. Clarke, 4 T. R. 616. n Coppin v., 2 P. Wms. 497. per Ld. Hardwicke, 2 Atk. 208. See also Nurse and ux. v. Wills, 4 B. and Ad. 739. judgment affirmed on error, I Ad. and Ellis, 65. q Philliskirk and wife v. Pluckwell, 2 M. and S. 393. r Day v. Padrone, B. R. Trin. 13 and 14 G. 2. 2 M. and S. 396. n. and Serjt. Hill's MSS. vol. 19, p. 290, and vol. 27, p. 172. (11) But see Middlemore v. Goodall, Cro. Car. 505. (12) It appears by a MS. note, in the possession of a friend of the compiler, that the roll in Howell v. Maine was searched, and it was found that the bond was given to the wife during the coverture; for devant, therefore, in some editions of Levinz's Report, read durant. Comyns has stated the case accurately in his Digest, tit. Baron and Feme (w). 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. A married woman, being administratrix, received a sum of money in that character, and lent it to her husband, taking in return, first, the joint and several promissory note of her husband and two other persons, payable to her with interest. It was holdent, 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. 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. 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 an action against the warden for the escape. 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. 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. Replevin.-Baron and feme may be joined in the same declaration in replevin for goods distrained from the feme dum sola. If the goods of a feme sole be taken, and she marries, the husband alone may sue the replevin. In the replevin of goods which the wife has as executrix, husband s Betts v. Kimpton, 2 B. and Ad. 273. x Huggins v. Durham, Str. 726. y Bro. Baron and Feme, pl. 41. z Ib. pl. 28. a Ib. pl. 85. u Woolverston v. Fynnimore, T. 18 b F. Ñ. B. 159. K. cited in Bull. N. P. |