plies for the support of the family, is the debt of the husband alone, he being bound to furnish such supplies.30 d. Indorsement by married woman. At common law, where a promissory note is made to a feme sole, and she afterward marries, being possessed of the note, the title vests in the husband, and he alone can indorse it for transfer.40 And where a note is made payable to a married woman, the legal interest in it vests in the husband." Such negotiable paper, being part of her personal estate, payable to her order, is in legal effect, under the common law, payable to her husband.42 The husband may authorize his wife to indorse bills of exchange and promissory notes; and where he permits her to carry on business and pass under an assumed name, such an authority may be presumed. If he permits her to carry on business in her own name, and she indorses a note payable to her in the course of her business, using the name of her husband, it seems the circumstances may be left to the jury to 43 39. O'Malley v. Ruddy, 79 Wis. 147, ing." See Walton v. Bristol, 125 N. C. 48 N. W. 116. 419, 34 S. E. 544. 40. Parsons on Notes and Bills, p. 85; Conner v. Martin, 1 Stra. (Eng.) 516, 3 Wils. 5. Byles on Bills (16th ed., p. 75), says: "Formerly, where a bill or note was given to a single woman, and she married, the property vested in her husband, and he alone could indorse it; and husband and wife must join in the action upon it; but if payable to order, marriage might operate as an indorse ment, so as to enable the husband to sue alone. If not recovered upon or reduced into possession during their joint lives, it reverted to the woman, if she survived, or went to her husband as her administrator, if he survived." 41. Barlow v. Bishop, 1 East (Eng.), 432; Roland v. Logan, 18 Ala. 307; Krebs v. O'Grady, 23 Ala. 726, 58 Am. Dec. 312; Mudge v. Bullock, 83 Ill. 22; Savage v. King, 17 Me. 301; Hancock Bank v. Joy, 41 Me. 568; Stevens v. Beals, 10 Cush. (Mass.) 291, 57 Am. Dec. 108. In the latter case the court said: "In the leading case of Barlow v. Bishop, 1 East (Eng.), 432, which decides that a married woman cannot indorse a note made payable to her in her own name, so as to pass a valid title thereto, proof of the authority or assent of the husband was want 71. 42. Edwards on Bills and Notes, p. а 43. Assent of husband. It is now a well-settled rule of law that the assent or authority of the husband gives validity to the wife's indorsement and enables her to pass good title to choses in action made payable to her during coverture. The principle upon which this rule rests is this: the coverture of the wife creates an incapacity and disability in her to make a valid contract. The assent of the husband removes this disability or supplies the want of capacity. She then becomes, to a certain extent, the agent of the husband, who is bound by her acts when done in pursuance of the authority conferred by him. Stevens v. Beals, 10 Cush. (Mass.) 291, 57 Am. Dec. 108, citing Coates v. Davis, 1 Campb. (Eng.) 485; Miller v. Delameter, 12 Wend. (N. Y.) 433. In the case of Allen.v. Wilkins, 3 Allen (Mass.), 321, the doctrine that a note made to a married woman during coverture belongs to her husband is explained to mean that the husband has the jus disponendi so long as they both live, but it is held that if the husband dies without reducing the chose to possession, or doing any act indicating an intent to appropriate 45 presume or infer an authority from him to indorse. So, where she drew a bill of exchange payable to her own order, and indorsed it with the assent of her husband, it was held that this indorsement carried the title to her indorsee, so as to enable him to recover thereon against the acceptor. But where no authority is shown, her act is a nullity, and her indorsement transfers no property in the bill or note.16 But it has been held that notes payable to bearer may be passed by delivery by a feme covert who owned them." The rules here laid down are derived solely from the common law, unaffected by statute. They have been more or less affected by the statutes of the several States and cannot now be said to be in full force and effect. e. Reduction into possession.—A promissory note is not a personal chattel in possession but is a chose in action; and the-common-law rule is that when a chose in action, such as a bond or note, is given to a feme covert, the husband may elect to let his wife have the benefit of it, or he may take it himself and reduce it into possession at any time during the coverture. 48 It was always a question of considerable nicety to determine what amounted to a reduction of the wife's chose of action into possession.* If the note was negotiable it could be reduced into possession by indorsing and transferring it; if nonnegotiable, it could only be reduced to possession by a suit at law, like any other thing in action. If he omitted to bring such an action, and he survived his wife, the 46. Savage v. King, 17 Me. 301; Vann v. Edwards, 128 N. C. 425, 39 S. E. 66. 49 it during the wife's life, her admin- the husband was not a reduction of istrator may sue on it. the wife's choses of action into pos44. Barlow V. Bishop, 1 East session; and therefore the assignees (Eng.), 432. As to what will con- of a bankrupt could not maintain an stitute implied authority, see Russ v. action in their own names alone on a George, 45 N. H. 467; George v. Cut- promissory note made by the wife of ting, 46 N. H. 130, 88 Am. Dec. 195. the bankrupt before her marriage. 45. Prestwick v. Marshall, 5 Car. & (Sherrington v. Yates, 12 Mees. & W. P. (Eng.) 594. [Eng.] 855.) Nor was the receipt of interest by the husband a reduction into possession, nor a direction by a husband to his banker to keep it separate from other monies, followed by a bequest in his will. (Hart v. Stephens, 6 Q. .B. 937; Scrutton v. Pattillo, L. R., 19 Eq. 369; Nicholson v. Drury Building Co., L. R., 7 Ch. Div. 49.)" In the case of James v. Groff, 157 Mo. 402, 57 S. W. 1081, it was held that the mere indorsement of a note by a wife to her husband does not reduce such note to his possession, so as to convey title thereto to him. 47. Cobb v. Duke, 36 Miss. 60, 72 Am. Dec. 157. 48. Edwards on Bills and Notes, p. 72; Gaters v. Maderly, 6 Mees. & W. (Eng.) 422; Betts v. Kimpton, 2 Barn. & Adol. (Eng.) 273; Hart v. Stephens, 14 L. J. Q. B. (Eng.) 148. 49. Byles on Bills (16th ed.), p. 76, in which it is said: "It is conceived that indorsing a note over was such a reduction. But the bankruptcy of action was required to be brought in the name of her personal representatives.50 If no action was taken to reduce into possession, the note survived to the wife after the death of the husband.51 f. Joint notes of husband and wife. Under the common law a joint and several note made by both husband and wife binds the husband only.52 But where the note was made by them for the purpose of aiding the wife in the transaction of her separate business, the note will be binding upon the wife.53 The same is doubtless true where such a note is for the sole benefit of the wife's separate estate. The name of the wife being found on a note does not raise a legal presumption that she is either jointly or severally liable on it.55 5 54 50. Edwards on Bills and Notes, p. 72; 1 Parsons on Notes and Bills, p. 85. 51. Allen V. Wilkins, 3 Allen (Mass.), 321; Clark v. Clark, 76 Wis. 306, 45 N. W. 121. Parsons, in his work on Notes and Bills (Vol. 1, p. 85), says: "Bills and notes possessed by a single woman before and at her marriage are her choses in action, which the husband may reduce to his possession and so make his own, or may not. If he does not and dies, her right and interest to or in them are the same as before mar riage. If she dies, they are now assets in the hands of her administrator; the husband has a right to be her administrator; and having in that capacity collected the notes or bills, he will retain the proceeds for his own benefit and as his own property. And if he dies, the right of taking out letters of administration upon her unsettled estate goes to his next of kin and not to hers. If she leaves debts contracted when single, for which the husband is no longer liable as such, he is still liable as her administrator to the extent of her bills and notes or other choses in action which he has reduced to possession after her death, but not for those which he reduced as husband, while she lived." 52. Luning v. Brady, 10 Cal. 265; Brown v. Orr, 29 Cal. 120; Durnford v. Gross, 7 Mart. (La.) O. S. 466; Sprigg v. Boissier, 5 Mart. (La.) N. S. 54; Davidson v. Stuart, 10 La. 146; Smith v. Wilson (Tex.), 32 S. W. 434. 53. A note given by a married woman and her husband for property purchased by her as a sole trader is valid in law, and the amount of such note may be recovered against the husband and wife in an action of assumpsit. Barnes v. De France, 2 Colo. 294. In the case of Schofield v. Jones, 85 Ga. 816, 11 S. E. 1032, it was held that where a wife joins with her hus band in taking a lease of property for the purpose of carrying on the hotel business, their joint notes, executed for the rent, are binding on the wife, See also Wyatt v. Walton, 114 Ga. 375, 40 S. E. 237; Thornton v. Lemon, 114 Ga. 155, 39 S. E. 943; Smith v, Smith, 10 Ohio S. C. & C. P. Dec. 439; Noel v. Clark (Tex. Civ. App.), 60 S. W. 356. 54. Colonial & U. S. Mtge. Co. v. Bradley, 4 S. D. 158, 55 N. W. 1108. 55. Harris v. Finberg, 46 Tex. 79; Way v. Peck, 47 Conn. 23. In the latter case it was held that where a married woman has signed a note with her husband, it will not be presumed, but must be shown, that the circumstances were such as to bring the case within the statute making married women liable on their contracts, and the husband's declarations, made in the absence of the wife and without her authority, will not bind her, nor will the fact that a part of the loan for which the note was given was deposited by the husband to the wife's credit, and drawn by her in payment of bills for an addition to her house, though significant as evidence, be equivalent to a finding of facts creating a statute liability. See also Crenshaw v. Collier, 70 Ark. 5, 65 S. W. 709. 26. Alien enemies. A state of war operates to suspend and interdict all intercourse and correspondence with the enemy; it prohibits all commerce, and contracts between the citizens and subjects of the belligerent nations are unlawful and void.56 The reason for this rule is found in the fact that every man is a party to the acts of his own government; and when one government declares or enters upon war against another, the two nations become enemies, and all the subjects of the one are the enemies of the subjects of the other.57 It follows, therefore, that a promissory note made by a citizen of one country payable to a citizen of another, when such countries are at war with each other, is invalid and cannot be collected; and See Mitchell v. United States, 21 Wall. (U. S.) 350: Brig Mary Warwick, 2 Black (U. S.), 635. It was held that during the Civil War two citizens of the United States, residing in loyal States, could make a valid contract for the sale or mortgage of cotton growing on a plantation within one of the insurgent States, and such a contract would pass existing cotton on the plantation, and also The crops to be subsequently raised 57. Edwards on Bills and Notes. p. 75. 56. Reason for rule.- Matthews v. McStea, 91 U. S. 7, 23 L. Ed. 188, in which Justice Strong uses the following language: "It must be conceded, as a general rule, to be one of the immediate consequences of a declaration of war and the effect of a state of war, even when not declared, that all commercial intercourse and dealing between the subjects or adherents of the contending powers is unlawful, and is interdicted. reasons for this rule are obvious. thereon. Briggs v. United States, 143 They are, that, in a state of war, all U. S. 346, 12 Sup. Ct. 391. the members of each belligerent are respectively enemies of all the citizens of the other belligerent; and were com- Reason as stated by Chancellor mercial intercourse allowed, it would Kent. - Chancellor Kent says, in Gristend to strengthen the enemy, and af- wold v. Waddington, 16 Johns. (N. ford facilities for conveying intelli- Y.) 438: "I think I may venture to gence, and even for traitorous corre- hazard the assertion, that there is spondence. Hence it has become an no authority in law, whether that law established doctrine that war puts an be national, maritime, or municipal, end to all commercial dealing between for any kind of private, voluntary, unthe citizens or subjects of the nations licensed business, communication, or or powers at war, and places every intercourse with an enemy. It is all individual of the respective govern- noxious, and in a greater or less dements, as well as the governments gree it is all criminal. Every atthemselves, in a state of hostility.' tempt at drawing distinctions has See also Briggs v. United States, 143 U. S. 346, 12 Sup. Ct. 391; Alexandria Sav. Bank v. McVeigh, 84 Va. 48, 51, 3 S. E. 889, where it is held that an indorser of a note is not bound by a notice left at his house which he had abandoned during the war. Hershaw v. Kelsey, 100 Mass. 561. Application to civil war.- The principles of the public law relating to the rights of citizens of belligerent nations are applicable in nearly every respect to a civil war existing between different portions of the same nation. failed; all kinds of intercourse, except that which is hostile, or created by the mere exigency of war and necessity of the case, is illegal. The law has put the sting of disability into every kind of voluntary communication and contract with an enemy, which is made without special permission of the government. There is wisdom and policy, patriotism and safety, in this principle, and every relaxation of it tends to corrupt the allegiance of the subject, and prolong the calamities of war." it has been held that a bill drawn by an alien enemy on a British subject in England, and indorsed to a British subject abroad, cannot be enforced even after the restoration of peace.58 The rule applies, not only to citizens and native-born subjects, but to all persons voluntarily domiciled in either country. The place of the transaction does not make it illegal; the material question is, whether it renders assistance to an alien enemy in the time of war. For example, it has been held in England that an action may be sustained there by a neutral on a promissory note given to him by a British subject in an enemy's country for goods sold there.59 If the contract be in favor or for the benefit of an alien enemy not domiciled in the country, it is void both at law and in equity; but it is not void where it is made for the benefit of a neutral, and it seems that although a bill be drawn by an alien enemy, it may be valid in the hands of a neutral who received the same without any previous understanding or knowledge of any intended illegal use to be made of it. B. PERSONS ACTING IN FIDUCIARY CAPACITY. 27. Executors and administrators. a. In general.- Executors and administrators, as the legal representatives of their decedents, succeed to all the interests of such decedents; and all the rights and remedies of such decedents in respect to their contracts and instruments, negotiable or otherwise, pass to their executors and administrators. So far as the assets of the estates under their control will admit, they also succeed to all the obligations of their decedents. This is subject, however, to the important exception in respect to those contracts, whether express or implied, which are so entirely personal to the deceased, that no one can fill his place or become his substitute; so that all the rights and obligations arising under such contracts die with him.81 61 58. Williams v. Patteson, 7 Taunt. (Eng.) 439, 1 Moore, 333; Brandon v. Nesbit, 6 T. R. (Eng.) 23. of peace he might recover the amount from the acceptor; and the decision was placed on the ground that otherwise such persons would sustain greater privations during their detention. Centoine v. Morshead, 6 Taunt. (Eng.) 237. But where two British subjects were detained prisoners in France, and one of them drew a bill in favor of the other on a third British subject, resident in England, and such payee indorsed the same in France to an alien enemy, it was decided that the alien's right of action was only suspended during the war, so that on the return 154: Petrie v. Voorhees, 18 N. J. Eq. 59. Houriet v. Morris, 3 Campb. (Eng.) 803. 60. Story on Bills, §§ 103, 104. |