been held, that she may be joined in all cases, upon an express promise to her." "The effect," says he, Id. 20, "of joining the wife in an action, when the husband might sue alone, is, that if the husband die whilst it is pending, or after judgment, and before it is satisfied, the interest in the cause of action will survive to the wife, and not to the executors of the husband: though, if he sued alone, she would have had no interest." Mr. Stephens, 1 N. P. 744, lays down the same positions. Premising, that where the husband and wife join in an action, founded upon the services, etc., of the wife, and there is no express promise in the case, it must appear in the declaration that the services were rendered by her, so as to show that she is the meritorious cause of the suit; but that, if the action is founded on a note or bond to her, or upon any other instrument importing consideration, no such averment is necessary: Rose v. Bowler, 1 H. Bl. 114; Philliskirk v. Pluckwell, 2 Mau. & Sel. 393. I proceed to show from a few cases, promiscuously taken from both the law and equity jurisdictions, that the elementary writers already quoted, are borne out in the propositions laid down by them. It is true, that there are a few cases, Hodges v. Beverley, Bunb. 188; Lightbourn v. Holyday, 2 Eq. Abr. 1; Bidgood v. Way, 2 W. Bl. 1236, to the contrary; but the current of cases, especially those of later date, are with them. Thus, in Brashford v. Buckingham, Cro. Jac. 77, it was assigned for error that the action was brought by husband and wife upon a promise made to the wife after coverture, in consideration that she should cure a wound; and it was insisted that the husband alone should have sued, it being a personal duty which accrued during coverture. Sed non allocatur, being grounded upon a promise made to the wife, upon a matter arising from her skill; so she is the cause of the action, and so the action in both their names is well enough; and such an action shall survive to the wife.

Philliskirk v. Pluckwell, 2 Mau. & Sel. 393. Assumpsit by husband and wife on a promissory note, given by the defendant to the wife during coverture. It was objected that the husband should sue alone, as it did not appear on the face of the note that it was on account of any meritorious consideration proceeding from the wife. Lord Ellenborough said, the note to her imported a consideration proceeding from her; "and in Co. Lit. 120 a; and 1 Roll. Abr., Baron and Femme, H, pl. 6 and 7, mentioned by my brother Dampier, a difference is taken between a thing that is not merely a chose in action, and one that is: and, therefore, in case of a bond made to the wife, if

the wife dieth, the husband shall not have it, without taking administration, because that is merely in action. So here the note is made to the wife; and it imports consideration, unless the contrary be shown." Bayley, J., concurred with him; and Dampier, J., held that the husband might join his wife in the action; and said: "There must be some inaccuracy in Bidgood v. Way, 2 W. Bl. 1236, in one part; because the court say that no promise to a married woman, either express or implied, gives her 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. In Day v. Pargrave, according to my note, Lee, C. J., said, that where a bond is given to the wife during coverture, no action will lie for it by the wife, solely, but they may have a joint action during their lives; or the husband may bring such action during the coverture, in his own name; yet if he does not, it survives to the wife."

In Oglander v. Baston, 1 Vern. 396, it is said by the lord chancellor: "If there be a bond debt due to the wife, the husband may sue alone, without joining his wife; but in case the wife was joined in the action, and judgment is recovered, the judgment will survive to the wife." Schoonmaker v. Elmendorf, 10 Johns. 49. Scire facias brought by the wife's executors to revive a judgment, which had been obtained by husband and wife on a bond given to both. The wife survived the husband, and it was held that they had well joined in the original action; and that the judgment survived to the wife. Coppin v., 2 P. Wms. 496. Bill by husband and wife: plea by defendant, and plea overruled, with five pounds costs. Husband dies; held, that these costs survive to the wife. It was said in the argument, " that a bond given to the husband and wife, during the coverture, on the husband's dying first, did not survive to the wife." But "the lord chancellor denied this, and recte, for clearly it does survive to the wife, as all other joint choses in action do; though it is true in this case the husband may disagree to the wife's right to it, and bring the action on the bond in his own name only; but till such disagreement, the right to the bond is in both the husband and the wife, and shall survive."

I shall close this examination with the case of Nash v. Nash, 2 Madd. 411, first Am. ed. (Eng. ed. 133), decided in 1817, in which most of the cases are cited and commented on. The father of a married woman drew a check in her favor, upon his bankers, for ten thousand pounds. The bankers gave her a

promissory note for the amount; which she delivered to her husband; and he received one thousand pounds upon it, and continued to receive the interest on the remaining nine thousand pounds up to the time of his death. It was held, that upon his death, she was entitled to the note, as a chose in action which had survived to her.

cases are sufficient to settle the

It seems to me that these question as to the right at law. Still it may be said, that though the doctrine be as stated, as between the husband, or his representatives, and the wife, it must be otherwise as between the latter and the creditors of the former. That it may lead to fraud-for if a bond or note, executed in the name of the wife, be allowed to survive to her, it will be easy for the husband, when the consideration really proceeds from him, and not from the wife, to take the obligation in her name, and thus secure a benefit to her at the expense of his creditors. But there is no such danger. If the chose arises in truth, as in this instance, from the wife as the meritorious cause, there is no fraud in allowing her the benefit of it; and if it arises from the funds or property of the husband, the proof of that fact will demonstrate the fraud and prevent its being carried into effect.

It is ordered, that the decree be reversed, and the bill, pertaining to this matter, as against the defendants, Meetze, Bouknight, and Scott, dismissed. The costs to be paid out of the estate of Mr. Addison before distribution.

JOHNSON and DUNKIN, chancellors, concurred.

CHOSES IN ACTION MADE IN THE WIFE'S NAME are good, and the title vests in her. It is true, that, at common law, a gift to the wife, or a purchase by her, does not, even for an instant, vest in her, because the law makes her incapable of holding personal property in her own right; but her incapacity does not extend to choses in action. True, her ownership in these is a condi. tional one. The husband may reduce them to his possession; but the doctrine is too well settled to need the citation of authorities, that, until he does so reduce them, the ownership of and title to them are still in the wife, and, in the event of his death, become absolutely hers. They do not become part of the assets of his estate, nor go to his administrator or executor, but vest absolutely in the wife. This is plain, and there is no conflict if the chose was bers before marriage. By allowing her to hold her choses in action after marriage, her capacity to do so is admitted, if once they get in her possession; and although the decisions are not so uniform in regard to the wife's capacity to hold or own post-nuptial choses in action as they are in reference to antenuptial choses in action, still the preponderance is decidedly in favor of her capacity to do so. The fact that she may be joined by the husband in a suit to reduce them to possession implies an interest in her, and the further fact, that, in some cases, she must be joined, carries with it more than a bare im

D

plication. Besides, as we shall presently show, such choses in action survive to her upon the death of the husband, which would be impossible if she had no interest, ownership, or title in them. On these points see authorities cited under appropriate heads, post. We mention this matter, because there seem to be some dicta to the effect that post-nuptial choses in action are of the nature of chattels, and vest in the husband alone, no matter in whose name they appear; and the reason given is, that the wife has no capacity to take. Nor, as it has sometimes been urged, are such choses in action void. In Brown v. Langford, 3 Bibb, 497, a bond given to a feme covert was held good. Boyle, C. J., said: "It is certainly not correct, as was supposed in the argument, that a deed or bond executed to a feme covert is void. The negative of this position is established by a uniform current of authorities: 2 Bl. Com. 296, 297; Co. Lit. 3 and 156, 157; 1 Com. Dig. 107, 109; Bac. Abr., Am. ed., 498, 499 (in the margin)."

DISTINCTION BETWEEN WIFE'S ANTENUPTIAL AND POST-NUPTIAL CHOSES IN ACTION in regard to parties to an action to recover possession. Where the husband desires to reduce to his possession the antenuptial choses in action of his wife, he must join his wife in the action. This is well settled. In Tucker v. Gordon, 5 N. H. 564, the court said: "In general for all causes of action which were complete in the wife before the coverture, she must be joined in the suit: 1 Chit. Pl. 17-21; 2 Stark. Ev. 685; Rumsey v. George, 1 Mau. & Sel. 176; Bing. on Covert. 246; Checchi v. Powell, 6 Barn. & C. 253; Milner v. Milner, 3 T. R. 631." But where he desires to reduce to possession choses in action made after marriage to his wife alone or to himself and wife, he has, in most cases, the option of joining his wife or not in the suit. Thus on a bond given to a wife during coverture the husband and wife have a joint action during their lives, or the husband may sue in his own name: 2 Mau. & Sel. 396, note (b); Aukerstein v. Clark, 4 T. R. 616. In Thompson v. Ellsworth, 1 Barb. Ch. 624, the court said: "The law on that subject is that if a bond or other security is taken in the name of the wife during coverture, the husband may elect to treat it as his own property, and may bring suit thereon in his own name; or he may treat it as the property of his wife, and bring a suit in the name of both:" Day v. Palgrave, Trinity term, 14 Geo. II., cited in Philliskirk v. Pluckwell, 2 Mau. & Sel. 393; Checkley v. Checkley, 2 Show. 247; Low v. Porter, 14 N. J. L. 516; Timbers v. Katz, 6 Watts & S. 290. So too on a note made to the wife during coverture, or to the husband and wife, the husband may sue alone, or he may sue jointly with his wife: Philliskirk v. Pluckwell, supra; Burrough v. Moss, 10 Barn. & Cress. 558; Young v. Ward, 21 Ill. 223; Blodgett v. Ebbing, 24 Miss. 245; Searing v. Searing, 9 Paige's Ch. 283; Little v. Marsh, 2 Ired. Eq. 18; Draper v. Jackson, 16 Mass. 480. Where the chose in action consists in a legacy left to the wife the cases are not entirely agreed as to joinder of parties. The prevailing doctrine seems to be the same as in other choses in action, viz.: that the husband may sue alone or may join his wife in a suit to reduce the chose to possession. In Woodlay v. Findlay et al., 9 Ala. 716, where a legacy had been left to the wife, the court applied the general rule in regard to choses in action, and said: "When the wife's chose in action accrues during coverture, the husband may, or may not, join the wife with him in the suit, at his election:" Tucker v. Gordon, 5 N. H. 564. In Kentucky, however, the rule was laid down that the wife is a necessary party to a bill to obtain possession of property devised to her during coverture. The reason given applies only to suits in equity, and is that "the chancellor should never aid the husband in getting possession, even of property which descends or is devised to her during coverture, without secur

ing to her an adequate provision if she need and desire it:" Griffith v. Coleman, 5 J. J. Marsh. 600; Bailey v. Dennett, 3 Y. & C. Ex. 459.

RIGHT OF WIFE BY SURVIVORSHIP TO HER POST-NUPTIAL CHOSES IN ACTION." Where an obligation is taken to the husband and wife, or to the wife alone, with the assent of the husband, the action survives to the wife, who is entitled to the proceeds as against the heirs and personal representatives of the husband. In such a case the form of security implies a design by the husband to benefit the wife; and the law will give effect to this intention where the interest of creditors is not affected. The rule seems to be well settled, that an agreement with a feme covert and a promise to her personally raises a presumption that she is the meritorious cause of such agreement, and it will survive to her: Borst v. Spelman, 4 N. Y. 284; Draper v. Jackson, 16 Mass. 483; 2 Redfield on Wills, 175-178; Wilder v. Aldrich, 2 R. I. 518. Where the money is secured to the husband and wife by a promissory note or certificate of deposit, no other facts appearing, the wife is held to be enti tled by survivorship to the money: Roman Catholic Asylum v. Strain, 2 Bradf. 34; Prindle v. Caruthers, 15 N. Y. 425; Hoy v. Rogers, 4 Mon. 226. It can make no difference whether the consideration of the chose in action passes from the husband or not. If it passes from him, in such a case the form of security implies a design on the part of the husband to benefit the wife, and the law will give effect to it. The relation they bear to each is such that the law raises the presumption that the object and intention of the husband was to benefit the wife, and the right of survivorship will vest in her. We are satisfied, upon an examination of the authorities, unless there are extrinsic facts to take the case out of the rule, that where a promissory note or other evidence of debt is made payable to husband and wife, upon the death of the husband the right survives to the wife; and she will take the proceeds, unless the interest of creditors is affected:" Johnson v. Lusk, 6 Coldw. 113. This is the doctrine as laid down by the later decisions: Lenderman v. Talley, 1 Houst. (Del.) 523; Wilder v. Aldrich, 2 R. I. 518; Searing v. Searing, 9 Paige, 283; Weeks v. Weeks, 5 Ired. Eq. 111; Stephens v. Beal, 4 Geo. 319; Snowhill v. Snowhill, 2 N. J. Eq. 30; Baker v. Red, 4 Dana, 158; Blount v. Bestland, cited from 5 Ves. 515; Wildman v. Wildman, 9 Id. 174; Schuuler v. Hoyle and Wife, 5 Johns. Ch. 196; Nash v. Nash, 2 Madd. 133; Elliot v. Collier, 1 Wils. 618; Dane v. Allen, 1 Green's Ch. (N. J.) 415; Bond v. Conway, 11 Md. 512; Kellar v. Beelor, 5 T. B. Mon. 573; State v. Robertson, 5 Harr. (Del.) 201; Willis v. Roberts, 48 Me. 257; Howe v. Bemis, 2 Gray, 205; Checkley v. Checkley, 2 Show. 247; Dalton v. Midland Counties Railway Co., 13 C. B. 474-478; Richards v. Richards, 2 Barn. & Adol. 447; Gates v. Madeley, 6 Mee. & W. 423; Sherrington v. Yates, 12 Id. 855; Hart v. Stephens, 6 Q. B. 937; Scarpellini v. Atcheson, 7 Id. 864; Scawen v. Blunt, 7 Ves. 294; Garforth v. Bradley, 2 Ves. sen. 676; Baker v. Hall, 12 Ves. 497; Foster's Executor v. Smith, decided in the supreme court of Massachusetts in 1784, and cited in Hayward v. Hayward, 20 Pick. 517, 526; Wintercast v. Smith, 4 Rawle, 177; Lodge v. Hamilton, 2 Serg. & R. 491; Iiarleston v. Lynch, 1 Desau. 224; Clifton v. Executors of Haig, 4 Id. 330; Wallace v. Talliaferro, 2 Call, 447; Gallego v. Gallego, 2 Brock. C. C. 285; Willis v. Roberts, 48 Me. 257.

That a wife's choses in action, accruing to her after marriage, survive to her, is undoubtedly the law; but there are some decisions holding the contrary doctrine, where the chose is a note, bond, or other similar writing: Griswold v. Penniman, 2 Conn. 564; Barlow v. Bishop, 1 East, 432; Cornwall v. Hoyt, 7 Conn. 420; Edwards v. Sheridan, 24 Id. 165; Greenleaf v. Hill, 31 Me. 562; Commonwealth v. Manley, 12 Pick. 173. And a legacy accruing to

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