and wife shall join, ut videturc. Avowry for rent arrear jure uxoris may be by husband and wife, or husband only, averring the life of femed.

Tort. In an action upon the case for stopping a way to the land of the wife, husband and wife may joine. 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. 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 holden, that the action was well brought in the names of the husbands and wives.

Trespass.-Trespass was brought by the husband alone for hunting in a free warreng, which he had in right of his wife, and it was adjudged good, for damages only are recoverable. 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 marriageh, and consummated afterwards, husband and wife may join, as in trover for a personal chattel of wife before, and conversion thereof after marriage. 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 demurrer1, or even after verdict, according to the case of Abbott v. Blofield, Cro. Jac. 644. Sed quæ. 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 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 hus

c Bro. Baron and Feme, pl. 85.

d Wise v. Bellent, Cro. Jac. 442. Osborne v. Walleeden, 1 Mod. 273.

e Agreed in Baker and wife v. Brereman, Cro. Car. 418.

f Tregmiell and wife v. Reeve, Cro. Car. 437.

g Bro. Baron and Feme, pl. 16

h Blackborn v. Greaves, 2 Lev. 107.

i Serres v. Dodd, 2 N. R. 405.

band 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. 3. (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 deSerres and wife v. Dodd, 2 N. R. 405.

murrer.

IV. Of Actions against Husband and Wife.

In actions against the husband for the debts of the wife contracted before marriagek, if the wife is not joined, advantage may be taken of the omission in arrest of judgment: and this rule holds, although an account has been stated with the husband', for that does not alter the nature of the debt. 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 holdenm, 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. Assumpsit against husband and wife for goods sold and deli

k Mitchinson v. Hewson, 7 T. R. 348. m Richardson v. Hall, 1 Brod. and 1 Drue v. Thorne, Aleyn, 72. Bingh. 50.

vered to wife dum sola; promise by the wife. Pleas, nonassumpsit; 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 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 W. 4. ex relatione Cresswell, counsel for defendant. 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".

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. 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. 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 holden bad. "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

n Lockwood v. Salter, 5 B. and Ad. q Stone v. Macnair, in error, 7 Taunt.

303.

o Norwood v. Stevenson, Andr. 227.

p Stephenson v. Hardy, 3 Wils. 388.

2 Bl. R. 872. S. C.

432.

r Ross v. Noel, Bull. N. P. 136.

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 holden, that a delivery to the wife, at the husband's request, was in law a delivery to the husband. 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 bads. If an action is brought against husband and wife on a bond given by the wife dum solat, the defendant may plead the bankruptcy of the husband after the intermarriage &c. as a discharge of the debt. This plea upon the statute must conclude to the country. Husband and wife cannot maintain an action of trover, and suppose the possession in them both; for the law will transfer 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. 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. 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. 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 holden, 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. If wife be joined in

s Morris and wife v. Norfolk and another, 1 Taunt. 212.

t Miles v. Williams, 1 P. Wms. 249. said by Lord Hardwicke, in 2 Vesey, 181, to be truly reported.

u Draper v. Fulkes, Yelv. 165.

x Doyley v. White, Cro. Jac. 323.

y Cooper v. Hunchin, 4 East, 521. See 3 M. and S. 557.

z Obrian v. Ramm, Carth. 30. See the record, 3 Mod. 170.

an action for words spoken by husband only, it will be errora. Hence if slander be spoken by husband and wife, there must be separate actions, one against the husband only, for the slander spoken by him, and the other against the husband and wife, for slander spoken by the wife, and the court will not order the actions to be consolidated. So for words spoken of husband and wife there must be two actions, one by the husband for the words spoken of the husband, and another by husband and wife for the words spoken of the wifeb. The policy of the common law will not permit husband and wife to give evidence for each other, because their interests are the same; nor against each other, on account of the implacable dissension which might be occasioned thereby. The declarations of a married woman, during coverture, of the non-payment of money lent to her before marriage, are admissibled in evidence for the plaintiffs, in an action brought against her husband as her administrator: for the wife, like any other person, may bind her representative.

a Swithin v. Vincent, 2 Wils. 227. Dyer, 19, a. pl. 112. in the margin. b Errington v. Gardiner, B. R. M. 22. G. 3 MS. See Smith v. Warner, Goldsb. 76. Dalby v. Dorthall, Cro. Car. 553. Anon. W. Jones, 440. Smith v. Cooker, W. Jones, 409.

c Davis v. Dinwoody, 4 T. R. 678. Bull. N. P. 286.

d Per Lord Tenterden, C. J. Humphreys v. Boyce, 2 M. and Malk. 140.