An action cannot be maintained against one as the executor of a feme covert, although the ground of the action be goods furnished to her in the course of trade carried on by her as a feme sole, and though defendant may have possessed himself of goods to the amount of the demand, of which the woman was in possession as a feme sole (t).

III. Of Actions by Husband and Wife.

1. Where the Husband and Wife must join, p. 344.
2. Where the Husband must sue alone, p. 345.

3. Where the Husband and Wife may join, or the Husband may sue
alone at his Election, p. 347.

1. Where the Husband and Wife must join.-In real actions for the recovery of land for the wife, the husband and wife must join (u). So in an action of waste, for waste committed on the land of the wife (x). So in detinue of charters of the wife's inheritance (y). In an action on a bond given to wife dum sola, husband and wife must join (z). But the husband may sue alone on a bill payable to the wife dum sola, but becoming due after marriage (a).

Bond was given to wife during the coverture; the wife died; and then the husband sued upon the bond, as administrator to his wife; it was held, on demurrer, that the action was well brought (b). Railway stock was bought by a married woman out of her own earnings, and was transferred in her name in the company's books; it was held, that she could maintain an action against the company in her own name, subject to a plea in abatement. "We think," said Jervis, C. J., "that the plaintiff, though a married woman, by having become a registered shareholder of the company acquired, as a chose in action, a right to the dividends, which, unless controlled by her husband, would survive to her, and might have been unobjectionably put in suit by her and her husband jointly" (c). If an action is brought in respect of a personal wrong to the wife,

(t) Clayton v. Adams, Executor, L. P. B. 107, Dampier, MSS. L. I. L.; 6 T. R. 604, S. C.

(u) 1 Bulst. 21.

(x) 7 Hen. IV. 15, a. ; 3 Hen. VI. 34. (y) 1 Rol. Abr. 347, (R.) pl. 1.

(z) Per Lord Hardwicke, C. J., in Bates v. Dandy, 2 Atk. 208; 1 Rol. Abr. 347 (R.) pl. 3. In Milner v. Milnes, 3 T. R. 631, Lord Kenyon said:" It is extremely clear on the one hand that marriage gives to the husband all the personal estate which the wife has in possession; it is also clear, on the other hand, that where a chose in action of the

of

ished! and

as a

as for the battery of the wife, the husband and wife must join (d); so in action for slander of the wife, she must join because she is the party slandered, and the husband must join for conformity (e). The declaration ought to conclude, "to their damage" (f), and not "to the damage of the husband" (g), for the damages will survive to the wife, if the husband die before they are received; and a plea that the female plaintiff is not the wife of the male plaintiff is a good plea in bar (h). 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 (i); but in a case where special damage was laid for the loss of wages of the wife, it was held, that the husband and wife could not recover for such damage; for as the profit of her wages is entirely his, he alone can sue for the loss of them (k). So where the wife was injured in consequence of the explosion of a lamp which the defendant had warranted, it was held, that the wife could not be joined in an action brought for such injury, because there was no misfeasance on the part of the defendant, independently of the contract which had been made with the husband alone (1). And where husband and wife sue on an account stated, the declaration must show that the accounting was concerning matters in which the wife had an interest (m).

By the Common Law Procedure Act, 1852, s. 40, "in any actions brought by a man and his wife for an injury done to the wife in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to add thereto claims in his own right; and separate actions brought in respect of such claims may be consolidated if the court or a judge shall think fit, provided that in the case of the death of either plaintiff such suit, so far as relates to the causes of action, if any, which do not survive, shall abate” (n).

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 coverture (o); 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,

(d) But in these cases the husband
may sue alone for the injury sustained
by himself from the loss of the society,
comfort, and assistance of his wife, in
consequence of the battery. Hyde v.
Scissor, Cro. Jac. 538.

(e) Dengate v. Gardiner, 4 M. & W. 5.
(f) Horton v. Byles, 1 Sid. 387.
(g) Judgment arrested for this con-
clusion, in Newton and Ux. v. Hatter, Lord
Raym. 1208.

(h) Chantler v. Lindsey, 16 M. & W. 82.

(i) Grove and Ux. v. Hart, Tr. 25 Geo. II. Bull. N. P. 7.

(k) Dengate v. Gardiner, 4 M. & W. 5. (1) Longmeid v. Holliday, 6 Exch. 761. (m) Johnson v. Lucas, 1 E. & B. 659; S. C. 22 L. J., Q. B. 174.

(n) As to the powers of enrolment in case of misjoinder, see C. L. P. Act, 1852, s. 222.

(0) Buckley v. Collier, Salk. 114, and Carth. 251.

but go to the personal representative of the husband (p). By a settlement made on the marriage of the plaintiff and his wife, leaseholds were assigned upon trust to allow the wife to receive the rents and profits during her life to her separate use. The wife after marriage received the rents from the trustee, and lent a portion of them to the defendant; it was held, that the plaintiff might, after his wife's death, recover this money, jure mariti, from the defendant in an action for money lent (q). But where trustees for the separate use of the wife admitted that they held a certain sum to her separate use, but refused to pay it over without her separate receipt, it was held that an action for money had and received would not lie by the husband and wife for the sum so admitted to be due to her. "Here," said Lord Denman, "the defendants were not bound to pay the dividend which they had received to the wife's use, and indeed were bound to keep it for her until they obtained her authority in the form of her sole and separate receipt; their express duty being to secure her property against her husband (r)." So in an action on the case for words, not actionable in themselves, spoken of the wife, whereby the husband sustains special damage, the husband must sue alone (s). So, in actions for injuries committed during coverture to personal chattels (t), 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 (u).

In all cases where the wife shall not have the thing 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 (x). 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,

(p) 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; and in this case the action would survive to the wife. Brashford v. Buckingham (in error), Cro. Jac. 77, 205.

(g) Bird v. Pegrum, 13 C. B. 639; S. C., 22 L. J., C. P. 166.

(r) Bond v. Nurse, 10 Q. B. 244. (s) Coleman and Wife v. Harcourt, 1 Lev. 140, cited in Saville and Wife v. Sweeny, 4 B. & Ad. 514.

(1) Arundel v. Short, Cro. Eliz. 133. (u) Willy v. Hanksworth, B. R. M., 3 Geo. II. MSS., and cited by the court in Weller v. Baker, 2 Wils. 424.

(x) Rol. Abr. 347, (Q.) pl. 5.

whereas it appeared on the record that B. was the wife of A. and could not sustain any damage by reason of anything 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. The counsel for the defendants in error having urged 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 (y). 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 defendant (z); but in this case the life of the wife must be averred (a). Note.-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 (b), the husband and wife may join (c); or the husband may sue alone, for he alone may release such action (d).

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 join (e). So where a promise is made to the wife only (ƒ).

Action by husband for money had and received. Plea, by way of defence on equitable grounds that the money had been bequeathed by will to the separate use of the plaintiff's late wife, who, during the coverture, assigned the money to the defendant on

(y) Bidgood v. Way and Wife, on error in Exch. Chamb. 2 Bl. R. 1236, cited in Morris v. Norfolk, 1 Taunt. 214.

(z) Yard v. Eland, Lord Raym. 368; Salk. 117; Longmeid v. Holliday, ante, p. 345.

(a) Lea v. Minne, Yelv. 84; Cro. Jac. 110.

(b) 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." See also Ayling v. Whicher, 6 A. & E. 259; 1 Nev. & P. 416.

(c) Per Cur., 2 Mod. 270.

(d) 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.

(e) Hilliard v. Hambridge, Aleyn, 36. See Johnson v. Lucas, 1 E. & B. 659; ante, p. 345.

(f) Prat v. Taylor, Cro. Eliz. 61; 1 Rol. Abr. 32, pl. 12.

trusts in which the plaintiff took no interest. It was held that the plea was good, admitting a receipt of the money prima facie to the use of the husband, and avoiding it by showing that in equity the receipt was on trusts in which the husband took no interest, thereby sufficiently negativing any marital right arising on her death (g).

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 (h). Queen Elizabeth, by letters patent, demised a house to A. for years, who covenanted to repair, and afterwards, during the term, the queen granted the reversion to husband and wife, and to the heirs of the husband in fee: the house being out of repair, the husband alone brought covenant, and it was held well, although the interest of the feme appeared on the face of the declaration (i). 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 (k). 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 her (1). 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 her (m).

Debt. So if a bond be given to husband and wife administratrix, husband may sue alone, declaring on it as a bond to himself (n). In debt on bond made to husband and wife, both may join (o); or the husband may disagree to the wife's right to the bond, and bring the action in his own name only (p); 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 (q). So in debt on bond made to the wife during coverture (r), or in assumpsit on a promissory note given to the wife during coverture (s), husband and wife may join: or husband may sue alone (t); but if the

(g) Sloper v. Cottrell, 6 E. & B. 497; S. C., 26 L. J., Q. B. 7.

(h) Bro. Baron and Feme, pl. 23. (i) Bret v. Cumberland, Cro. Jac. 399; Buls. 163, S. C. But see Middlemore v. Goodall, Cro. Car. 505.

(k) Aleberry v. Walby, Str. 230. (1) Beaver v. Lane, 2 Mod. 217. (m) Cited by Buller, J., 4 T. R. 617. (n) Ankerstein v. Clarke, 4 T. R. 616. (o) 32 Edw. III. 5; 43 Edw. III. 10; Bro. Baron and Feme, pl. 14, 55.

(p) Coppin v. —————, 2 P. Wms. 497. (q) Bro. Baron and Feme, pl. 60. (r) Howell v. Maine, [in the record, Powell v. Mason,] 3 Lev. 403, S. P., per

Lord Hardwicke, 2 Atk. 208. See also Nurse and Ux. v. Wills, 4 B. & Ad. 739, judgment affirmed on error, 1 A. & E.

65.

(s) Philliskirk and Wife v. Pluckwell, 2 M. & S. 393.

(t) 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 Reports, read durant. Comyns has stated the case accurately in his Digest, tit. Baron and Feme" (W).