marriage, and that all such property given to or acquired by the wife after marriage also vests in the husband. But choses in action belonging to the wife before marriage do not vest in the husband unless he does some act to reduce them into possession during the coverture, and even during coverture the husband may permit the wife to make a contract, in an action on which he may join with her during her life, though he may disaffirm her interest and sue on the contract as made with himself alone. If he does permit the wife to make such a contract and does not reduce it into possession during the coverture it survives to the wife. The earlier cases illustrating this rule are cases of written contracts, such as bonds or promissory notes given to the wife or the husband and wife during coverture. As to those the rule of law is stated in 1 Williams Exors. p. 798, 6th ed., to be fully settled "that if there be a bill or note made to a married woman during coverture, the husband may sue alone upon it, or permit his wife to take an interest in it; in which latter case it appears to stand on the same footing as if it had been made to her before coverture." Except from the difficulty of shewing that the contract was in fact made with the wife, we see no reason why the rule of law should be different in this respect in cases of a contract in writing and any other, and we think that the decision in Dalton v. The Midland Counties Railway Company (a) fully bears out what is said by Sir E. V. Williams in the last edition of his valuable work, vol. 1, p. 794, that "It may be stated, generally, that a married woman, though incapable of making a contract, is capable of having a chose in action conferred on her, which will survive to her on the death of her husband, unless he shall have (a) 13 C. B. 474. [1869.] FLEET V. PERRINS. [1869.] FLEET V. PRRRINS. interfered by doing some act to reduce it into possession.' We were much and properly pressed on the argument with the case of Bird v. Peagrum (a), decided by the same Judges and within a fortnight after their decision in Dalton v. The Midland Counties Railway Company (b), which therefore must certainly have been supposed by them to be consistent with their former decision, though some of the expressions reported to have been used by Jervis C. J. in the later case are not very consistent with the language used in the considered judgment delivered in the former. We think however that in the present case the facts shew that there was a chose in action conferred on the wife, with which the husband did not during coverture interfere. The money did not, according to the rule in Williams v. Everett (c), become the money of the person on whose behalf it was remitted until the depositee had by some act attorned to that person, up to which time it remained the money of the party remitting it. The money here was remitted for the use of the wife and of her alone. And the letters of the defendant attorning to the remittee were addressed to the wife alone and were promises to her to hold the money at her disposal, and there never was anything done to vest either in the husband or the wife any property in any coin as a personal chattel, so that it remained a mere chose in action in the wife, with which the husband did not interfere. We think therefore that the rule to enter the verdict for the plaintiff must be made absolute. Rule absolute. (a) 13 C. B. 639. (b) 13 C. B. 474. (c) 14 East 582. The defendant appealed from this decision, and the case was argued in Easter Vacation, 1869, May 11, 12, and judgment given on the latter day. Prentice (Gorst with him), for the defendant.--The general rule is that on promises made to the wife during coverture the husband may sue alone in his own name or jointly in the name of himself and his wife, except in the case of a bond or promissory note given to the wife, because no person can sue on those instruments unless his name appears as obligee or payee. [Channell B. There is an exception also in the case of choses in action belonging to the wife; if the husband does not reduce them into possession during coverture they survive to the wife.] Dividends on railway shares purchased by the wife with money earned in service before and after marriage are also an exception; Dalton v. The Midland Counties Railway Company (a); and the decision there was that, the non joinder of the husband not having been pleaded in abatement, the wife might maintain the action. Bird v. Peagrum (b), in which the old authorities are referred to, shews that the husband is in the present case entitled to bring an action in his own right. [Willes J. That was the case of a wife taking her husband's money and placing it in the bank in her own name. Kelly C. B. Is there any instance of an action in the joint names of husband and wife where the cause of action arose during the coverture?] No. In Bidgood v. Way (c) it was held that the count for money had and received to the use of husband (b) 13 C. B. 639. (c) 2 W. Bl. 1236. 1240. (a) 13 C. B. 474. [1869.] FLEET V. PERRINS. [1869.] FLEET V. PERRINS. and wife could not be supported by intendment, and Abbot v. Blofield (a) is to the same effect. In King v. Basingham (b) an action was brought by husband and wife for money lent by them; after verdict for the plaintiffs it was moved in arrest of judgment that the wife ought not to have been joined with her husband. Judgment having been affirmed, a writ of error was brought in this Court; and Pratt C. J. said, p. 200, "If the money was lent during coverture, the declaration is false, because then the wife could have no money." The case was adjourned, and ultimately, p. 342, "The Court inclined against the plaintiff, for it being laid ad damnum ipsorum made the declaration ill; and so it was adjudged in Cro. Jac. 479," Marshal v. Doyle. Cro. Jac. 473 seems the case meant. In Johnson v. Lucas (c) a declaration by husband and wife on an account stated was held bad for want of averring that the account was stated concerning money due to the wife in her right, or otherwise shewing her interest in the money. [He also cited Carne v. Brice (d), Tugman v. Hopkins (e), Molony v. Kennedy (f).] Willes J. Suppose a feme sole employs an auctioneer to sell goods and the proceeds of the sale are not due until after she has married.] In that case the facts must be specially stated in the declaration. [Cleasby B. Husband and wife may join in trover for the conversion of the wife's property during coverture if it be alleged in the declaration to her damage.] He gave up the other points. (a) Cro. Jac. 644. (c) 1 E. & B. 659. (e) 4 M. & G. 389. (b) 8 Mod. 199. 341. (d) 7 M. & W. 183. (ƒ) 10 Sim. 254. Brown (Marshall Griffith with him), for the plaintiff.The plaintiff is administratrix of the husband and also of the wife, but the law does not allow a plaintiff to sue in both characters. [Smith J. It is a great reproach to the law that such should be the fact.] According to Williams v. Everett (a) neither husband nor wife could have sued for this money until the defendant had attorned to the wife; therefore it was a chose in action of the wife in the defendant's hands; and, not having been reduced into possession by the husband, it must be recovered by the wife's representative; Betts v. Kimpton (b), per Lord Tenterden. That case was acted upon in The Attorney General V. Partington, in the Exchequer Chamber (c), where it was held that a married woman entitled as next of kin to the estate of an intestate having died without asserting her claim, leaving her husband surviving, who also died without asserting his claim, it was necessary for the next of kin of the husband to take out letters of administration to both husband and wife; and Willes J. in delivering the judgment of the Court pointed out, p. 205, that the right which a surviving husband has to the personal chattels of his deceased wife without administration "does not directly extend to the claim of a wife only in the nature of a debt." [Kelly C. B. That case, which was afterwards in the House of Lords, contains much useful learning.] A debt is the simplest form of a chose in action, but whatever is not reduced into possession is such, and the rule applicable to choses in action of the wife is not confined to bonds or promissory notes, Co. Litt. 351 b. [He also cited 1 Williams Erors. pp. 792-3, 6th ed., 4 Vin. Abr. 118, Baron and (a) 14 East 582 (b) 2 B & Ad. 273. 276. VOL. IX. (c) 3 H. & C. 193. B. & s. [1869.] FLEET V. PERRINS. |