CLEASBY, B. As there is a difference of opinion among the members of the Court. I have to deliver my opinion first. I am of opinion that the judgment ought to be affirmed. The real question is, whether there was a chose in action of the wife not reduced into possession during the coverture. There can be no doubt as to the general rule of law, but the difficulty is to apply it. Marriage, no doubt, operates as an unqualified gift of all the wife's chattels to her husband; but as to choses in action, it is qualified by the condition that he reduces them into possession during the coverture. This is laid down as recognized law in Com. Dig. Baron & Feme (E. 3); and this applies not only to choses in action given to the wife before marriage but also to those which are created after the marriage, to all if you can properly call them choses in action, to all cases in which the wife, is the meritorious cause of action. In Co. Litt. 351. b., to which I have already called attention, 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 clearly makes no distinction between debts on bond and by simple contract; and there is no reason for saying it makes any distinction between choses in action of the wife before marriage and those which come to her during coverture. It has been held that husband and wife may join in an action on a promise made to the wife after coverture, the cause of action arising from her skill and labour in curing a wound of the plaintiff, and it was said by the Court that such a cause of action survives to the wife: Brashford v. Buckingham (1); though it was held that the wife could not join in an action on a quantum meruit for her labour, inasmuch as the husband was entitled to the proceeds of his wife's labour, and the promise in law, therefore, if there were not an express promise to the wife, must be to the husband: Buckley v. Collier. (2) The passage cited from Williams on Executors, pp. 792—3 (6th ed.), is to the same effect; and the language used at the end of the passage is that of Lord Hardwicke, C., in Garforth v. Bradley (3), who says: "Wherever (2) 1 Salk. 114. (3) 2 Ves. Sen. at pp. 676–7. (1) Cro. Jac. 77. 1869 FLEET ช PERRINS. 1869 FLEET v. PERRINS. a chose in action comes to the wife, whether vesting before or after the marriage, if the husband dies in life of the wife, it will survive to the wife; with this distinction, that as to those which come during the coverture, the husband may for them bring the action in his own name, may disagree to the interest of the wife; and that recovery in his own name is equal to reducing into possession." The language of Sir R. Pepper Arden, M.R., in Langham v. Nenny (1), is precisely to the same effect; and he adds, "By chose in action I mean a right to be asserted by action at law,”— that is, a right to recover something in an action. Apply that to the facts of the present case. There was no right of any sort in the wife to this money; but a person places a sum of money in the hands of the defendant, intending it as a gift to the wife; as soon as the defendant assented to hold this money for the use of the wife and wrote and told her so, it became money had and received to her use; but all she had was a right to recover it from the defendant. If the money had been paid into a bank used by the husband and wife, or if the defendant had been the wife's agent to receive the money, so that the receipt by her would have been the receipt of the wife, that would have been quite a different matter, the money would then have been money received by the wife, and, consequently, absolutely the husband's; but all the wife had here was a bare chose in action, which was never reduced into possession. The wife died; and the husband, for all that appears, knowing nothing of it, took no steps with regard to the money, and he also died. Under these circumstances, I am of opinion that the right to recover the money from the defendant is in the wife's representative. I cannot undertake to go through all the numerous authorities bearing on the subject; but I can undertake to say that not one of them is at variance with the conclusion at which I have arrived. I will refer to two cases only which have been relied on contra. In Bird v. Peagrum (2) leasehold property was settled to the separate use of a married woman, she had received the rents from the trustee, and had lent part of them to the defendant. That was money which had actually come into the possession of the wife, and it was not a mere chose in action, and it was therefore properly (1) 3 Ves. at p. 469. (2) 13 C. B. 639; 22 L. J. (C.P.) 166. held that the husband could sue in his own right for the money. In Bidgood v. Way (1) the declaration stated that the money was had and received to the use of husband and wife; and as the money must have been received to the use of the husband, the action by husband and wife necessarily fell to the ground. The case is of very doubtful meaning; but this appears to be the ground of the decision, and there is a note by the editor of the 2nd edition (2), citing from Ord v. Fenwick (3), “Wood, arguendo, observed: That as it was not stated to be the wife's land, the Court could not infer it: besides there was a count for money had and received to the use of husband and wife, and an assumpsit to both." And further on, the editor cites the observation of Dampier, J., in Philliskirk v. Pluckwell (4): "There must be some little inaccuracy in the case of Bidgood v. Way in one part, because the Court say that no promise to a married woman, either expressed or implied, gives any interest, and yet they afterwards admit upon the cases, that where a promise is so expressly stated, the husband may assent to give the wife an interest in the contract and join her in the action." The single question after all is, was this merely a chose in action of the wife? I think it was. The defendant received the money to pay over to the wife, and did not do so; it was not reduced into possession during the coverture, and therefore the right of action survived to the wife's representative. MONTAGUE SMITH, J. I am of the same opinion. This is not like the case of Carne v. Brice (5), where the money had come into the possession of the wife, and she afterwards invested it in clothes; nor like the case of King v. Basingham (6), where the money was lent during coverture. This is the case of a chose in action, such as the husband might have joined her in enforcing, or the husband might have sued alone. But if money comes to the hands of the wife and she afterwards disposes of it, she is not disposing of her own money but her husband's. As to a contract made with the wife before marriage or a benefit lying in contract made to her after marriage, they are choses in action, and are her's, (1) 2 W. Bl. 1236. (2) 2 W. Bl. by Elsley, at pp. 1236, 1239. (3) 3 East, at p. 107. (4) 2 M. & S. at p. 396. (5) 7 M. & W. 183. (6) 8 Mod. 199. 1869 FLEET V. PERRINS. VOL. IV. 2 X 1 1869 FLEET v. PERRINS. subject to her husband's right to reduce them into possession during (1) 6 M. & W. at p. 427. fendant refused to pay the money, and it can only be got by an action; and if she had refused when both parties were alive an action must have been brought. The case most relied on by the defendant's counsel, Bird v. Peagrum (1), illustrates this distinction between property reduced into possession and a mere chose in action. There leasehold property was settled to the separate use of a married woman, and while the rents were in the hands of the trustees the husband could not deal with them; but when once the money came into the wife's hands, it became absolutely her husband's, however she might have dealt with it by depositing it with the defendant; and it was therefore held that on her death the husband might sue for it in his own right. In all the other cases money had come into the actual possession of the wife, or at all events the chose in action had been reduced into possession by the wife, or the cases were cases of goods which had been given to or purchased by the wife, and the property vested at once in the husband. A difficulty has been suggested as to the pleadings. Nothing appears on the face of the pleadings as to how or when the money was received to the use of Mary Ann Ross. But it is said that there is a variance, that the evidence does not support the declaration; but I think that the money was received in a certain sense to the use of the wife. As to the case of Bidgood v. Way (2), the objection arose on a motion in arrest of judgment, and my Brother Cleasby has given the answer to that case,―inasmuch as it was stated in the declaration that the money was received to the use of the husband and wife, and if it was received to their joint use the right would go at once to the husband. It would have been more satisfactory if there had been a count stating the facts; but this is of secondary importance, because the defendant's counsel has maintained that, on the facts, no action would lie at the suit of the plaintiff, as representing the wife, in whatever way the pleadings were framed. KEATING, J. Having heard only part of the argument, I shall merely say that I agree with the opinion expressed by my Brothers Smith and Cleasby. (3) (1) 13 C. B. 639; 22 L. J. (C.P.) 166. (2) 2 W. Bl. 1236. (3) Willes, J., was present during the argument on the first day, and 2 X 2 1 1869 FLEET V. PERRINS. |