18€9 FLEET V. PERRINS. Rolph Ross, or to any other person or persons, as their representatives. 5. I have not the said money in my possession, or any part thereof. 6. I deposited the sum of 1507. in the City Bank, and I afterwards, at the request and by the direction of Henry Gardner, repaid the money to him, less the 317. 17s. 10d. so applied as aforesaid. 7. I have received from the City Bank 27. 13s. 10d. as interest, but do not know the rate at which such interest was calculated, and I have, at the request and by the direction of Henry Gardner, paid the said sum to him. At the close of the case for the plaintiff, the defendant's counsel objected that the action could not be maintained by the plaintiff as administratrix of Mary Ann Ross, on the ground that it was for money received by the defendant for Mary Ann Ross during coverture, and that, as her husband survived her, the administratrix of the husband was alone entitled to sue for the recovery of it. The learned judge nonsuited the plaintiff, but reserved leave to her to move to enter a verdict for 1197. 2s. 1d., subject to the defendant's objections. The Court of Queen's Bench to have the same power to amend as a judge at nisi prius. A rule was obtained, accordingly, to enter a verdict for the plaintiff for 1197. 28. 1d., which that Court made absolute. (1) May 11. Prentice, Q.C. (W. G. Harrison, with him), for the defendant. This was money received to the use of the wife after marriage. The husband's representative, and not the wife's, is the proper person to sue for it. The test is, could an action have been maintained by the husband and wife during coverture? Clearly not; the money, whether a gift or the payment of a debt, as soon as it was paid to the defendant and he assented to hold it for the wife, became the husband's property. The only exception to the rule, that a married woman cannot have a contract made with her so as to enable her to sue, is the case of a bond or promissory note. [WILLES, J. There are a class of cases of contract in which the husband may elect to allow the wife an interest and join her in the (1) Law Rep. 3 Q. B. 536. action, or he may sue alone; but if he dies without having commenced an action in his own name, the right survives to the wife.] Bird v. Peagrum (1), is very much like this case, and there it was held that the money, though the produce of property settled to the use of the wife, was the husband's, for which he could' sue jure mariti. [WILLES, J. The money had been actually received by the wife, and was clearly the husband's as soon as it came to her hands; but if money be paid to a third person for the use of the wife, is it more than a chose in action? CHANNELL, B. That is what the Court below say it was.] Suppose an action had been brought for money had and received by the husband and wife, Bidgood v. Way (2) is directly in point that the action would have been wrongly brought. King v. Basingham (3), and Abbot v. Blofield (4), are also directly to the same effect. So a count by husband and wife on an account stated is bad without shewing the interest of the wife: Johnson v. Lucas. (5) Carne v. Brice (6), Tugman v. Hopkins (7), and Molony v. Kennedy (8), all shew that this money was the property of the husband. Dalton v. Midland Railway Company (9), referred to by the Court below, may be relied on by the other side; but all it decides is that railway stock is in the same category as bonds, and that the right to the dividends is a chose in action which the wife may put in suit, subject only to a plea in abatement. In the notes to Wilbraham v. Snow (10), cases are cited shewing that goods cannot be laid as converted to the use of husband and wife: for a married woman cannot in law convert to her own use; so neither can money be received to her use. [WILLES, J., referred to Betts v. Kimpton. (11)] May 12. J. Brown, Q.C. (with him C. M. Griffith), for the plaintiff. The facts shew nothing more than a chose in action; neither 1869 FLEET v. PERRINS. 1869 FLEET V. PERRINS. the husband nor wife could have sued until the defendant attorned (2) 3 H. & C. 193; 33 L. J. (Ex.) 281. (3) 3 Ex. 136; 18 L. J. (Ex.) 485. (5) 13 C. B. 474; 22 L. J. (C.P.) 177. still more fully stated at pp. 792-3:-" Property, falling under the description of choses in action of the wife, are debts owing to her on bond or otherwise, arrears of rent, legacies, trust funds, residuary personal estate, money in the funds, and other property recoverable by action or suit. Marriage is only a qualified gift to the husband of the wife's choses in action, viz., upon condition that he reduce them into possession during its continuance; for if he happen to die before his wife without having reduced such property into possession, she, and not his executors or administrators, will be entitled to it. Accordingly, the general rule of law is that choses in action, which are given to the wife, either before or after marriage, survive to her after the death of her husband, provided he has not reduced them into possession; but with this distinction, that as to those which come during the coverture, the husband may, for them, bring an action in his own name; may disagree to the interest of the wife; and that recovering in his own name is equal to reducing them into possession." [KELLY, C.B. I do not dispute that that is a correct statement of the law, but it does not shew what are choses in action. CHANNELL, B. At p. 738, Sir E. V. Williams says, "By the term 'chose in action,' as used in this treatise, is to be understood a right to be asserted or property reducible into possession, either by action at law or suit in equity."] Cases may be cited which are not cases of bonds or promissory notes: Wills v. Nurse (1); Ex parte Norton (2); Bendix v. Wakeman. (3) In Vin. Ab. Baron & Feme (D. a.) 3, it is laid down that though rent due to husband and wife have accrued due during the coverture, the right to recover the arrears survives to the wife; and Dembyn v. Brown (4) is to the same effect. [CLEASBY, B. In Co. Litt. 351. b., it is said, "Marriage is an absolute gift of all chattels personal in possession in her own. right, whether the husband survive the wife or no; but if they be in action, as debts by obligation, contract, or otherwise, the husband shall not have them unless he and his wife recover them." That includes debts by simple contract, apparently, as opposed to obligation by bond.] (1) 1 Ad. & E. 65. (3) 12 M. & W. 97. 1869 FLEET v. PERRINS. 1869 FLEET บ. PERRINS. The cases cited by the other side are all distinguishable. Bidgood v. Way (1) has not passed without question: see the notes to the second edition of the reports by Elsley; and all it decided, if anything bearing on the present point, was, that money had and received would not lie at the suit of husband and wife without shewing the wife's interest. That may be said of any action by husband and wife, as was held in Johnson v. Lucas (2), of an account stated; but the Court were of opinion, on the authority of Wills v. Nurse (3), that the action would have lain on an account stated concerning money due to the wife. In King v. Basingham (4) no judgment appears to have been given. In Carne v. Brice (5), Tugman v. Hopkins (6), and Molony v. Kennedy (7), the money or other subject-matter had come into the possession of the wife. The same may be said of Bird v. Peagrum. (8) And, as pointed out by Blackburn, J., in the judgment in the present case, it must be taken to be consistent with the judgment of some of the same judges in Dalton v. Midland Railway Company (9), which latter case is a direct authority for the plaintiff. Prentice, Q.C., in reply. The whole question was assumed in the Court below, viz., that husband and wife could have sued for this money. There is the fallacy: a gift to the wife vests in the husband immediately, though he has not the actual possession: Com. Dig. Baron & Feme (E. 3.). Holmes v. Wood (10) is a good instance of the distinction as to how far a wife can be said to be the meritorious cause, so as to enable her to be joined in an action. There it was said that in an action for her work and labour, in effecting a cure, she might be joined, but there being a count for medicines supplied, the joinder was held fatal; for the medicines must be the husband's alone. Messenger v. Clark (11) is also another instance shewing the impossibility of money belonging to a married woman in the contemplation of a court of law. |