On assign of term. of such covenant without joining the other tenant in common (a); and upon the decease of all the tenants in common, the representatives of all must join in an action on the covenant (b). If the reversion in an undivided share of the demised premises is assigned to the lessee, whereby his term, as to that share, becomes merged in his reversion in the same, the reversioners in the other shares of the premises, or their assignees, are entitled to sue the lessee upon the covenants, and to recover damages in proportion to the extent of their interest (c). The assignee of the term in part of the demised premises ment of part is entitled to the benefit of the covenants, and liable to the burden of them, so far as they extend to his part of the premises; thus, the assignee of the term in part of the premises, under an underlease of that part for the whole term, is entitled to sue the lessor on a covenant for not finding materials for the repairs of that part (d). So, an action of covenant will lie against the assignee of part for not repairing his part (e); and an action of covenant will lie against an assignee of part for an apportionment of the rent (ƒ). In a mining lease granted by deed to three persons in joint tenancy, they covenanted jointly and severally to compensate for all surface damage; two of the three joint tenants assigned their interest in the demise; it was held that the covenant ran with the land, and that the assignee was liable severally for the whole amount of compensation (g). But an action of covenant cannot be maintained by the lessor against the assignee of a part of the term in the premises; as an underlessee for a term short of the original term by a day, or year, or other interval of time (h). (a) Foley v. Addenbrooke, 4 Q. B. 197. (b) Thompson v. Hakewill, 19 C. B. N. S. 713; 35 L. J. C. P. 18. (c) Yates v. Cole, 2 B. &. B. 660; Badeley v. Vigurs, 4 E. & B. 71; 23 L. J. Q. B. 377. (d) Palmer v. Edwards, 1 Doug. 183, n. (e) Congham v. King, Cro. Car. 222, S. C. nom. Conan v. Kemise, Sir W. Jones, 215; cited in Steven not liable An assignee of the lessee is liable upon the covenants Assignee running with the land, only so long as he remains assignee ; after asand he does not continue liable, at law or in equity, after he signment. has actually assigned away the term; though. he may have assigned it to an insolvent person, and for the mere purpose of avoiding his liability (a). But an action may be maintained against him after he has assigned away the premises for a breach committed while he was assignee (b). He is not liable for breaches of covenant committed before the assignment to him (c). An assignee is not liable after he has assigned away the term, although the lease contained a covenant not to assign without the consent of the lessor, and no consent had been given (d). An assignee cannot maintain an action for a breach of covenant committed before the assignment to him (e). lessee after The personal liability of the original lessee on his cove- Liability of nants in the lease is not got rid of by assignment, but he assignment. may be sued notwithstanding he has assigned the demised premises; and upon his death the liability upon his express covenants will devolve upon his executor (f). His liabilities arising from privity of estate with the reversioner are put an end to by assignment, and the acceptance by the reversioner of the assignee as tenant (g). lessor after The lessor, after an assignment of the reversion, cannot sue Right of for a subsequent breach of a covenant which passes with the assignment. reversion to the assignee (1). Under a tenancy, not created by deed, upon the terms that the tenant should keep the premises in repair during the tenancy the landlord may maintain an action for a breach of the contract in not keeping the premises in repair, notwithstanding he has assigned 231; Johnson v. St. Peter's Hereford, (f) Thursby v. Plant, 1 Wms. (g) Ib.; Wadham v. Marlow, 8 (h) Green v. James, 6 M. & W. his reversion, because the contract, not being by a lease under seal, does not. pass with the reversion (a); and where the lease is by deed the lessor remains entitled to the covenants which do not run with the reversion, notwithstanding an assignment (b). CHAP. VI. SECT. III. ASSIGNMENT OF CONTRACTS BY Effect of marriage upon wife's Death of Husband... MARRIAGE operates as an assignment in law to the husband, to a qualified extent, of the rights and liabilities of the wife, contracts; arising out of contracts made before the marriage (c). as to her rights; Marriage is an absolute gift in law by the wife to the husband of all chattels personal in possession in her own right; but if they be in action, as debts by obligation, contract, or otherwise, the husband does not acquire them absolutely, unless he and his wife recover them, or, as it is called, reduce them into possession (). The husband must join the wife as a party in an action upon the contracts of the wife made before marriage, and cannot sue alone in his own name (e). In the case of negotiable instruments held by the wife at the time of the marriage, the husband acquires the right to transfer or indorse them; but he may sue upon them in his own name without joining the wife, and, if transferable by indorsement, without an indorsement to himself (f). (a) Bickford v. Parson, 5 C. B. 920; and see ante, p. 617. (b) Stokes v. Russell, 3 T. R. 678. (e) 2 Bl. Com. 433; 1 Roper's Husband and Wife, 2nd ed. 204. Contracts made with a wife after marriage depend upon the capacity of a married woman as a party to a contract. See "Contracts with Married Women," ante, p. 234. (d) Co. Lit. 3516; 2 Blackstone, Com. 434. (e) Milner v. Milnes, 3 T. R. 627, 631; and see Bendix v. Wakeman, 12 M. & W. 97; ante, p. 234. (f) M'Neilage v. Holloway, 1 B. & Ald. 218; and see ante, p. 240; the observation of Lord Ellenborough in M Neilage v. Holloway, that the nego tiable instruments of the wife vest absolutely in the husband upon the marriage, as chattels personal in possession, has been pronounced to be incorrect. See Gaters v. Madeley, 6 M. & W. 423, 427; Hart v. Stephens, 6 Q. B. 937, 943. The wife may sue alone upon contracts made with her before marriage, subject to the action being met by a plea in abatement on the ground of the husband not being joined as co-plaintiff; but no other objection can be taken by the defendant on the ground of her being married (a). If the husband is himself debtor to the wife before marriage, the marriage, in general, operates as a release in law of the debt (b); but a contract between an intended husband and wife, by which he binds himself for the payment of money to her after his death, is not released by the marriage; the wife surviving may maintain an action upon it against the representatives of the deceased husband (c). liabilities. The husband becomes liable upon marriage for all the as to wife's debts and liabilities of the wife contracted before marriage. The husband may be sued jointly with the wife upon such debts and liabilities (d); but he cannot be sued alone upon them. If the husband is sued alone, the objection is matter of substance; if it appears upon the record, it is a good ground of demurrer, or motion in arrest of judgment, or error; if it transpires upon the evidence, it is a ground of nonsuit or adverse verdict (e). The non-joinder of the wife cannot be amended by adding the wife as a defendant under the Common Law Procedure Act, 1852, s. 222 (f). The wife may be sued alone upon the liabilities contracted by her before marriage, subject to a plea in abatement of the non-joinder of her husband as a co-defendant; but she cannot take any other objection on the ground of her coverture (g). The wife may be taken in execution upon a judgment against her, whether her husband is taken with her or not; but the Court will, in general, discharge her, unless she 731; Helps v. Clayton, 17 C. B. N. S. (e) Mitchinson v. Hewson, 7 T. R. (f) Garrard v. Giubilei, 11 C. B. N. S. 616; 13 ib. 832; 31 L. J. C. P. 131, 270. (g) Milner v. Milnes, 3 T. R. 627, 631; Lovell v. Walker, 9 M. & W. 299; see ante, p. 234. Death of husband. has separate property with which she can satisfy the judgment (a). Upon the death of the husband, leaving the wife surviving, the rights upon the contracts of the wife before marriage, which have not been reduced into possession by the husband in his lifetime, survive to the wife (b); so also with contracts made in favour of the wife after marriage (c); and with contracts made in favour of the husband and wife jointly (d). Thus, a promissory note made to a wife during coverture, survives to the wife after the death of her husband, unless he reduces it into possession in his lifetime (e); and the executors of the husband cannot sue upon such note (ƒ). A married woman, having lent money to her husband which she held as an administratrix, took as security the joint and several promissory note of her husband and two other persons; it was held that, though no action could have been brought upon the note during the coverture, yet after the death of the husband the note survived to the wife, and she might sue the other makers (g). A bond given to husband and wife, on the husband's dying first, survives to the wife (h). A judgment recovered by husband and wife jointly vests in the survivor upon the death of either (i). The liability of the husband upon the contracts of the wife before marriage continues only during the coverture, so that upon the death of the husband in the lifetime of the wife the liability survives against the wife solely, and upon the death of the wife in the lifetime of the husband the liability devolves upon her administrator; unless the creditor has obtained judgment against the husband in the lifetime of the wife. A Court of Equity will not relieve a surviving husband |