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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 wifeh. 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 administratrix!, 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 husbando. 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 wifer; 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,
per Ld. Hardwicke, 2 Atk. 208. See i Beaver v. Lane, 2 Mod. 217.
also Nurse and ux. v. Wills, 4 B. k Cited by Buller, J. 4 T. R. 617. and Ad. 739. judgment affirmed on 1 Ankerstein v. Clarke, 4 T. R. 616. error, I Ad, and Ellis, 65. m 32 E. 3. 5. 43 E. 3. 10. Bro. Baron q Philliskirk and wife v. Pluckwell, and Feme, pl. 14. 55.
2 M. and S. 393. n Coppin v. - 2 P. Wms. 497. r Day v. Padrone, B. R. Trin. 13 and o Bro. Baron and Feme, pl. 60.
14 G. 2. 2 M. and S. 396. n. and p Howell v. Maine, [in the record, Serjt. Hill's MSS. vol. 19, p. 290, Powell v.
Mason,) 3 Lev. 403. S. P. 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 actionu 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 wifex 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 jointlyy. 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 solaa. 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. t Richards v. Richards, 2 B. and Ad. y Bro. Baron and Feme, pl. 41.
447, recognized in Rose v. Poulton, z Ib. pl. 28. 2 B. and Ad. 822.
a Ib. pl. 85. u Woolverston v. Fynnimore, T. 18 b F. N. B. 159. K. cited in Bull. N. P. and 19 G. 2. C. B. MSS.
and wife shall join, ut videtur, 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 warrenę, 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 demurrer', 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. f Tregmiell and wife v. Reeve, Crą. d Wise v. Bellent, Cro. Jac. 442. Os. Car. 437.
borne v. Walleeden, 1 Mod. 273. g Bro. Baron and Feme, pl. 16 e Agreed in Baker and wife v. Brere- h Black born v. Greaves, 2 Lev. 107, man, Cro. Car. 418.
i Serres v. Dodd, 2 N. R. 40%.
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 demurrer.
Serres and wife v. Dodd, 2 N. R. 405.
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. 1 Drue v. Thorne, Aleyn, 72.
m Richardson v. Hall, 1 Brod, and
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 goodp, 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 9. “ 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 BI. 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.
432. o Norwood v. Stevenson, Andr. 227. r Ross v. Noel, Bull. N. P. 136. p Stephenson v. Hardy, 3 Wils. 388.
2 BI. R. 872. S. C.