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HUSBAND

AND WIFE.

and on

exemplify the difficulties which. may still arise in determining the character of a given claim.

By a settlement made on the marriage of A. with B., his wife, certain leaseholds were assigned to X., in trust to allow B. to receive the rents during her life. B., during coverture, received the rents from X., and lent a portion of the money so received to him. It was held, that after B.'s death, A. might in his own right sue X. for the money, in an action for money received (c). It was contended on behalf of X., that the money lent by B. was a chose in action, which during her life must have been sued for by A. and B., B.'s death must be sued for by her administrator. The decision of the Court went on the ground that the money when received by B. became A.'s property in possession, which in point of law belonged to him, and that he, therefore, sued B., not for a chose in action of his wife, but to recover his own money owing to himself,

X. received money from M. to be appropriated to the use of B. the wife of A., and wrote to B., telling her that he held the money at her disposal. A. survived B. and died, never having at any time interfered as to the money. It was held by the Court of Queen's Bench (d), and by the majority of the Exchequer Chamber (e), that the representative, not of A., but of B., was the proper party to sue for the money, as the facts showed a chose in action conferred on the wife with which the husband had not interfered during coverture,

“ The facts show that there was a chose in action conferred on the wife with which the husband did not during coverture interfere. The money did not, according to the rule in Williams y. Everett (f ), become the money of

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(c) Bird v. Peagrum, 13 C. B. 639 ; 22 L. J. 166, C. P.
(d) Fleet v. Perrins, L. R. 3 Q. B. 536 ; 37 L. J. 233, Q. B.
(e) L. R. 4 Q. B. 500; 37 L. J. 536, Q. B. (Ex. Ch.)
(f) 14 East, 582.

N

HUSBAND

AND WIFE.

a

llas chose in action been reduced into possession?

the person on whose behalf it was remitted until the depositee had by some act attorned to that person, up to which time it remained the money of the remitter (g). The money here was remitted for the use of the wife, and of her alone; and the letters of the defendant attorning to the remittee were addressed to the wife alone, and were promises to her to hold the money at her disposal ; and there never was anything done to vest either in the husband or the wife any property in any coin as a personal chattel, so that it remained a mere chose in action in the wife, with which the husband did not interfere ” (h).

2nd Question. Has the chose in action been reduced into possession ?

Suppose it to be determined that a wife once possessed a chose in action. The further question still remains whether her husband has reduced it into possession (i).

The general principle is that his “acts, in order to effect that purpose, (viz., of reducing his wife's choses in action into possession,] must be such as to change the property in them ; or, in other words, must be something to divest the wife's right, and to make that of the husband absolute; such as a judgment recovered in an action commenced by him alone, or an award of execution recovered by him and his wife, or receipt of the money” (j).

The most usual modes in which a reduction into possession, e.g., of a promissory note, can be effected by the husband, are receiving the money due, recovering the amount in an action, or, apparently, bringing an action (where this can be done) in his own name alone (k:).

(g) See pp. 93-98, ante.
(h) Fleet v. Perrins, L. R. 3 Q. B. 542, per Blackburn, J.

(i) Scarpellini v. Atcheson, 7 Q. B. 875, judgment of Denman, C. J.

(1) 1 Williams, Executors, 6th ed., 802, 803.

(k) Hart v. Stephens, 6 Q. B. 937 ; Scarpellini v. Atcheson, 7 Q. B. 864 ; Gaters v. Modeley, 6 M. & W. 423 ; Lush, Practice, 3rd ed., 46.

HUSBAND

AND WIFE.

made

The fact of a husband in some respects treating the property of his wife as his own, or expressing an intention to reduce it into possession, is not of itself sufficient to defeat her rights (1).

If the answer to these questions be, that the wife has a chose in action, e.g., a debt due to her, and that the chose in action has never been reduced into possession by her husband, she always may, and in some cases must, join with her husband in an action to recover it, and this principle will be found to be the explanation of most of the rules as to the joinder of husband and wife as plaintiffs.

Case 1.-On all contracts of whatever description Contracts (except, perhaps, negotiable instruments, e. g., bills

before of exchange or promissory notes (m)) made with a marriage. . woman before marriage, actions must be brought during coverture in the names of the husband and of the wife (n).

This rule holds good whatever be the nature of the contract sued upon, and applies as well to actions on socalled implied contracts, e.g., for money had and received, as to other actions ex contractu. Case 2.—On all contracts in which the wife claims not Contracts

with wife in her own right, but in a representative character, e.g., as adminisas executrix, an action must be brought in the names of tratrix. the husband and of the wife (o). “If, however, the husband alter the nature of the debt owing to his wife in the character of executrix or administratrix, he alone may bring the action for recovering it. Thus if he should

а

It may, however, be a little doubtful whether the bringing an action in the husband's own name is in all cases a sufficient reduction into possession. Compare Scarpellini v. Atcheson, 7 Q. B. 864 ; 14 L. J. 333, Q. B. ; Gators v. Madeley, 6 M. & W. 423.

(l) See Williams, Executors, 6th ed., 801-812.

(m) M'Neilage v. Holloway, 1 B. & Ald. 218; 1 Williams, Executors, 6th ed., 794.

(n) Milner v. Milnes, 3 T. R. 627, 631; Bencdix v. Wakeman, 12 M. & W. 97 ; Bullen, Pleadings, 3rd ed., 171. (0) Bullen, Pleadings, 3rd ed., 156 ; Williams, Executors, 6th ed., 904.

AND WIFE.

HUSBAND indulge the debtor with further time, in consideration of

an express purpose to pay the husband, &c., he alone may compel payment of it by action . . . so that joining the wife in the action would be error. He also may sue alone" (though he need not (P)] “if the note or security be given to them jointly, as to him, and to his wife as

executrix”(q). Effect of Effect of death.On the death of the husband the death.

right of action on all contracts (r) made with the wife before marriage survives to her, and she may either commence, or (supposing an action has already been brought) continue, an action upon them. On the death of the wife the right of action passes to her administrator. Her husband who always has a right to be her administrator, must sue in that character. Hence if she

. dies after the commencement of an action, the action it is said abates, i. e., the proceedings are put an end to (s).

The death of the husband produces no effect on the wife's right to sue on contracts made with her as executrix. She may, that is to say, commence, or (if an action has been already begun,) continue an action upon them in her own name. On the death of the wife, whether before or after action brought, the right of action passes not to her husband, but to the representative of her testator. B. the wife of A. has claims on a contract made with M. of whom she is executrix. On the death of B. the right of action passes, not to A., but to the representative of M. It seems, therefore, to follow, that if an action be commenced by A. and B., and B.

dies, the action will abate. Effect of Effect of Divorce.—Divorce annihilates the marriage divorce.

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(P) Ankerstein v. Clarke, 4 T. R. 616.
(9) 2 Williams, Executors, 6th ed., 904, 905.

(r) These include negotiable instruments, (e. g., bills of exchange) which, perhaps, do not come within Case 1, as the huşband apparently may sue upon them alone.

(8) Lush, Practice, 3rd ed., 46.

HUSBAND

AND

WIFE.

from the moment at which it is declared dissolved (u). The woman in consequence retains her property in all choses in action which her husband has not reduced into possession (r) during coverture, and must, therefore, after divorce, sue alone on all contracts made with her before marriage, the claims on which have not been reduced into possession before the marriage was dissolved (y). On the death of the woman, the right to sue on such contracts passes to her representatives (2).

Set-off.—In actions by husband and wife, debts due Set-off. from the wife, i. e., debts contracted before marriage (a), may be set off against debts claimed by the husband and wife.

RULE 31.

Husband and wife

three cases.

Rule 31.—A husband may sue either alone or jointly with his wife in three cases, sc.: 1. On negotiable instruments, (e. g., bills of ex- may sue

jointly on change) given to his wife before marriage.

2. On contracts made after marriage with his wife alone.

3. On contracts made after marriage with himself and his wife.

Case 1.-It was at one time considered () that nego- Negotiable

instrutiable instruments, (e.g., bills of exchange) were personal ments

(u) Wilkinson v. Gibson, L. R. 4 Eq. 162, 167.
(x) See pp. 178, 179, ante.
(y) Wilkinson v. Gibson, L. R. 4 Eq. 162, 167.
(z) Compare Johnson v. Lander, L. R. 7 Eq. 228.

(a) Burrough v. Moss, 10 B. & C. 558 ; Field v. Allen, 9 M. & W. 694 ; Lush, Practice, 3rd ed., 46. She cannot contract debts ng coverture.

(b) M'Neilage y. Holloway, 1 B. & Ald. 218 ; Gaters v. Madeley, 6 M. & W. 423 ; Richards v. Richards, 2 B. & Ad. 447 ; 1 Williams, Executors, 6th ed., 794, 797.

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