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general rule mentioned in the preceding section, yet if it be executed on the part of the corporation, and if the persons who are parties to the contract with the corporation have received the benefit of the consideration moving from the corporation, such parties are bound by the contract, and are liable to be sued thereon by the corporation ; and even where the contract put in suit by the corporation has been on their part executory only, not executed, it seems that their suing upon the contract amounts to an admission on record by them that such contract was duly entered into on their part, so as to be obligatory on themselves, and that such admission on the record would estop them from setting up as an objection in a cross action that it was not sealed with their common seal.(s)
91 b. Where the members of a corporation were all ousted from their offices, but the corporation was subsequently revived by charter, it was held, that the revived *corporation might maintain an action on a bond given to its predecessors.(t)
[ *69 ] 92. By stat. 1 Vict. c. 73, s. 3, the crown is empowered to provide by the letters patent, granted in pursuance of that act to any joint-stock company, that all suits shall be commenced and prosecuted by one of two officers appointed to sue and be sued on behalf of the company; and by sect. 22, it is provided, that no suit commenced in the name of such officer, shall abate by his death or removal.(u) Under the stat. 8 & 9 Vict. c. 16, s. 97, moreover, any joint-stock company is empowered to sue on contracts made according to the provisions of that act.
93. Lastly, by 7 Geo. 4, c. 46, s. 9, and 1 & 2 Vict. c. 96, s. 1, made perpetual by 5 & 6 Vict. c. 85, any banking copartnership carrying on business under the provisions of those acts may sue by its public officer, who may likewise sue and be sued by any member of the copartnership, either solely or jointly with any other person, as the case may require, in respect of any claim by or against the company.(c) And the recent statute 7 & 8 Vict. c. 113, for the regulation of joint-stock banks established after the 6th of May, 1844, contains a similar provision.(y)
(8) Judgment, The Fishmongers' Company v. Robertson, 6 Scott, N. R. 105, 106; Reg: v. The Mayor of Thetford, 2 Ld. Raym. 818; The Barber Surgeons of London v. Pelson, 2 Lev. 252; The East London Waterworks Company v. Bailey, 4 Bing. 287."
(1) Mayor of Colchester v. Seaber, 3 Burr. 1866; The Mayor, &c. of Colchester v. Brooke, 15 L. J., N. S., Q. B., 173; see Rex v. Pasmore, 3 T. R. 199 ; 2 Bla. Com. 430.
(u) See also the Joint Stock Companies' Registration Act, 7 & 8 Vict. c. 110, ss. 25. 44, and see the Appendix.
(2) See Wilson v. Craven, 8 M. & W.584;* Robertson v. Sheward, 1 Scott, N. R. 419 ; Davidson v. Bower, 5 Scott, N. R. 538; Fletcher v. Crosbie, 9 M. & W. 252 ;* per Parke, B., Steward v. Dunn, 12 M. & W. 664;* Powles v. Page, 15 L. J., N. S., C. P. 217. (y) S. 8. See the Appendix.
"Eng. Com. Law Reps. 13. *Reprinted at $2.50 per vol.
HUSBAND AND WIFE-INFANT—ALIEN(a)--CIVIL DEATH.
Legal Effect of Marriage, s. Vhen Husband must sue alone, ss. 95–98. When
the Wise must sue alone-General Rule and Exceptions, ss. 99—101. When the Husband may elect to sue alone or jointly with his Wife, ss. 102-107. When the Husband and Wife must sue jointly, ss. 108–110. - Infant, Non Compos Mentis, Alien, Outlaw, &c., ss. 111-114.
94. The effect of marriage at common law is, to merge the separate existence of the wife during coverture, to vest in the husband during such period a right to the rents and profits of the wife's real estate, the interest in her chattels real, and the power of disposing of them, except by will; the right of reducing into possession her chattels real and choses in action ; and an absolute property in the rest of her personal estate, in possession:(6) and where property real or personal falls to the wife during coverture, the husband acquires a similar interest therein ;() as, in chattels purchased by the wife out of money settled 10 her separate use before marriage.(d) However, if the husband do not exercise the power of disposing of his wife's chattels real, or of reducing into possession either her chattels real or
choses in action, *these descriptions of personalty survive to the [*71]
wife; but if the husband be the survivor, although chattels real which he previously held in right of his wife thereupon vest absolutely in him, yet he must sue for chattels real, if not in possession, as well as for choses in action, as administrator to his wife, and not in his, individual character; and on his death, her representatives, and not his, must sue for their recovery.(d) It may also be proper to add, that, in personal actions, a marriage de facto is sufficient to entitle husband and wife to recover in right of the latter. (f)
95. We shall next proceed to consider, first, when the husband must sue without joining the wife; secondly, when the wife may sue alone ; thirdly, when the husband may elect to sue alone, or jointly with his wife ; and fourthly, when the husband and wife must join. And first, by reason of the merger of the wife's separate existence, her incapacity to contract, and the vesting of her property in her husband,(8) as the legal consequence of coverture, it follows, that the husband must sue alone for wages(h) accruing
(a) As to the recent statute 7 & 8 Vict. c. 66, vide Appendix.
(6) Com. Dig. Bar. and Feme, (E.); Bac. Ab. Bar. and Feme, (C.); 2 Bla. Com. 433— 435; Co. Litt. 300, a.; Maddox v. Winne, 3 Salk. 62. See Rowcliffe v. Edmonds, 7 M. & W. 12.
(c) Com. Dig. Bar. and Feme, (E.3); Bac. Ab. Bar. and Feme, (D.); Agar v. Blethyn, 2 Cr. M. & R. 699.
(d) Carne v. Brice, 7 M. & W. 183.* (e) Com. Dig. Bar. & Feme, (E.) (F.); Bac. Ab. Bar. and Feme, (C. 2 and 3); Id. Executors and Administrators, (H. 4); 2 Bla, Com. 434, 435; Betts v. Kimpton, 2 B. & Ad. 273;s Per Lord Tenterden, C. J., Richards v. Richards, 2 B. & Ad. 452_454;* Co. Co. Litt, 46, b., 299, b., 300, a., 351, b. 1) Machell v. Garrett, 3 Salk. 64; Norwood v, Stevenson, Andrews, 227. (g) Sect. 94.
(1) Per Lord Abinger, C. B., Dengate v. Gardiner, 4 M. & W. 7. See Glover v. Proprietors of Drury Lane, 2 Chitt. R. 117.
*Eng. Com. Law Reps. 22. Reprinted at $2.50 per vol.
to his wife, *and for the profits of a business carried on by her,(k) during coverture ; for her work and labour ;(l) goods sold or money
[ *72 ] lent by her during such period ;(m) for to all these he is solely and absolately entitled.
96. And although, as we shall presently see,(n) the wife must in general be joined in respect of a contract made with her dum sola, yet if a fresh promise in renewal of such contract be made to the husband alone, or some new consideration moving from him, as forbearance, the right of action on such promise is vested in him alone; and this rule applies where such right of action is vested in the wife before marriage in auire droit.(0)
97. At law, a married woman is incompetent to enter into an executory agreement,(p) except as the agent of her husband (although a subsequent ratification by him of such an agreement might, in some cases, be sufficient ;(9)) and such a contract is absolutely void : but *if an allegation of such a contract be inserted in the declaration, which also
( *73] discloses a sufficient consideration moving from her, it will, after verdict, be rejected as surplusage ; and further, it will be presumed that the defendant's promise was made to the plaintiffs, although not expressly stated so to be.(r) But where(s) an action was brought by husband and wife for use and occupation (though it does not appear whose lands were used and occupied, (t) and for inoney had and received to the use of the plaintiffs, with an allegation of a promise to them jointly, judgment for the plaintiffs was reversed on error ; for the promise could give no interest to the wife. So, where the cause of action was money received of husband and wife by the hands of the latter, and the promise was laid to both jointly, the judgment for plaintifis was arrested after verdict ; for the money was the property of the husband alone, and the promise to the wife was void. (u) But the authority of this case seems questionable ; as perhaps a sufficient consideration moving from the wife would, after verdict, be intended.(x)
98. The husband surviving is absolutely entitled to *the wife's chattels real and personal, in possession ;(y) and for rent accruing in her right, and in arrear at her death, an action of debt, as well as the right to distrain, is given to him by statute ;(2) though for rent subsequently
(k) Saville v. Sweeny, 4 B. & Ad. 514. 522. 524.
(1) Buckley v. Collier, 1 Salk. 114; 3 Id. 63; Bac. Ab. Bar. and Feme, (D.); but see per Cur., Holmes v. Woud, cited, 2 Wils. 424.
(m) Com. Dig. Bar. and Feme, (W.); Holmes v. Wood, 1 Barnard, 75. 249, cited, 2 Wils. 424, and 2 M. & S. 396; Bidgood v. Way, 2 W. Bla. 1236; King v. Basingham, 8 Mod. 199. 341..
(n) Post, s. 108. (0) Per Lord Ellenborough, C. J., Rumsey v. George, 1 M. & S. 180; Yard v. Ellard, 1 Salk. 117; and at more length in Lord Raymond, 368; Per Denman, C. J., Nurse v. Wills, 4 B. & Ad. 744;! Lec v. Wynne, Cro. Jac. 110; Bac. Ab. Bar. and Feme, (K).
(p) Com. Dig. Bar. & Feme, (Q.).
(9) See the remarks in Chitt. Contr. 3rd ed. p. 160, on Smith v. Plomer, 15 East, 607, and Sanderson v. Griffiths, 5 B. & C. 909.4
(r) Nurse v. Wills, 4 B. & Ad. 739 ;* affirmed in error, 1 A. & E. 65.9 ($) Bidgood v. Way, 2 W. Bla. 1236, cited, 4 B. & Ad. 742,- 1 A. & E. 73.) (1) See per Lord Ellenborough, C. J., 3 East, 106; Wills v. Nurse, 1 A. & E. 73. (u) Abbot v. Blofield, Cro. Jac. 644. (2) Bourn v. Mattaire, Andrews, 244; Selw. N. P. 10th ed. 295. (y) Ante, s. 94. A sci. fa. by baron and feme on a judgment recovered by feme whilst sole eurvives to the husband. Greshamn v. Woodyer, 1 Salk. 116.
(2) 32 H. 8, c. 37, s. 3 ; Co. Litt. 351, a. *Eng. Com. Law Reps. 24. "Id. 12. XId. 24. yId. 28. "Reprinted at $2.50. per vol.
accruing under a joint lease from husband and wife, no action can be maintained by the husband, whose interest has determined by the wife's death.(a) The husband is also entitled to administer to the wife(b) (unless the marriage was void ab initio ;(c)) and he must sue in his representative character in order to recover her chattels real and personal not previously reduced into ssession, whether vesting in her whilst sole or covert; as also on any cause of action which had accrued to her in autre droit.(d)
99. Secondly.-With respect to the wife it is a general rule, that she cannot sue alone at common law; and this is a necessary legal consequence of marriage ;(e) and the rule in suits in equity is, in ordinary cases, the same, subject, however, to some exceptions wholly unknown at law.(g) Hence, a feme covert cannot sue without her husband in the superior courts
at *Westminster, as a sole trader by the custom of the city of Lon. [ *75]
don.(h) The wife's disability to sue alone ceases, however, if the marriage be formally pronounced, or be discovered, to be void ab initio ;(i) or if it be dissolved by a divorce a vinculo matrimonii ;(k) but not if a sentence of divorce a mensâ et thoro be pronounced, nor if the parties execute a deed securing a separate maintenance to the wife.(l)
100. A feme covert may also sue alone if the husband be civiliter mortuus, whether permanently or for a term, by reason of his exile or banishment,(m) attainder,(n) or transportation,(o) under a judicial sentence (though the term of transportation be passed at the hulks ;(P)) but the wife's right to sue ceases on the reversal of the outlawry on attainder, or pardon of the offence, or on having undergone the punishment awarded to it.(9) Abjura[ *76]
tion of the realm was equivalent to *the civil death of the party
abjuring, and entailed similar consequences.(r) Again, where the husband is an alien enemy, his position is analogous to that of a person transported ;($) and in this case, it appears that the wife resident in this country may sue as a feme sole. But it seems doubtful whether this exception would include the wife of an alien ami who had never resided in this coun
(a) Hill v. Saunders, 4 B. & C. 529.
(b) 2 Bla. Com. 435. (c) Haydon v. Gould, 1 Salk. 119. (d) Com. Dig. Bar. and Feme, (E. 2, 3); Co. Litt. 351, b; 2 Bla. Com. 435.
(e) Co. Litt. 132, b; Bac. Ab. Bar. and Feme, (M.); 1 Bla. Com. 443; Story, Eq. Pl. s. 61.
(g) Story, Eq. Pl. s. 61. (h) Caudell v. Shaw, 4 T. R. 361 ; Per De Grey, c. J., 2 W. Bla. 1081; and see the judgment in Beard v. Webb, 2 B. & P. 97.
(i) See Anstey v. Manners, 1 Gow, R. 10 ;a Glasspole v. Young, 9 B. & C. 696.6
(m) Belknap's case, Co. Litt. 132, b, 133, a ; Weyland's case, Id. 133, a; Lean v. Schutz, 2 W. Bla. 1195. 1197, and cases there cited; Hatchett v. Baddely, 2 W. Bla. 1079. 1081, 1082; Bac. Ab. Bar. and Feme, (M.).
(n) Co. Litt. 133, a. (o) Jewson v. Read, Loff, 142; Sparrow v. Carruthers, cited, 1 T. R. 6, and 1 B. & P. 359.
(p) Ex parte Franks, 7 Bing. 762 ;4 and see the cases there cited.
(9) In Carrol v. Blencow, 4 Esp. 27, it was held that the wife of a person transported, who remained abroad after the term of transportation had expired, might sue alone ; but see Chitt, 3rd ed. 179.
(r) Co. Litt. 133, a ; arg., Lean v. Schutz, 2 W. Bla. 1197 ; 4 Bla. Com. 333; Per De Grey, C. J., and Blackstone, J., Hatchett v. Baddeley, 2 W. Bla. 1081, 1082. (8) Per Parke, B., Barden v. De Keverberg, 2 M. & W.65.
a Eng. Com. Law Reps. 5. bid. 17. Id. 10. Id. 20.
try:(t) and if the husband be an Englishman, mere residence abroad does not render the wife cornpetent to sue as a feme sole.(u) The last exception to the general rule is, where the husband is dead in legal presumption ; and this presumption arises after the lapse of seven years, if, having gone abroad or absented himself, no account can be given of him during that period. (2)
101. If the wife survives she has all real property the fruits of which the husband enjoyed in her right during coverture, and such chattels real and choses in *action, such as debts due before coverture, as he might also in her right have then reduced into possession.(y) So, a
[ *77] bond, note, or cognovit given to a feme covert, either alone or jointly with the husband, survives to her,(z) if not reduced into possession by the baron; and, in the event of her death, her personal representatives and not his are consequently entitled to il ;(a) and, therefore, the administrator of a husband, who survived his wife, and died without taking out administration of her effects, cannot recover her choses in action, but for that purpose
administration must be taken out to the wife.(b)
102. Thirdly - Where the cause of action accrues to the husband during coverture, in right of his wife, the former may in general, subject to the previous remarks,(c) elect either alone or jointly with the latter ; and, in these . cases, the wife cannot be improperly joined, if she have such an interest as would survive to her in the event of the husband's death.(d) For the recovery of the wife's real property it will be seen that she must sue jointly with her husband ;(e) but, if the reversion of *an estate be granted to husband and wife jointly, they may either join in suing the lessee in covenant for not repairing, or the husband alone may bring the action ;(8) and so it is in the action of debt for not setting out tithes accruing to the husband in right of his wife,(h) or for rent in arrear either on the demise of the wife dum sola, or of husband and wife during coverture ;(i) and on a covenant to husband and wife the husband alone may sue.
[ *78 ]
(1) Barden v. De Keverberg, 2 M. & W.61.* See Stretton v. Busnach, 1 Bing. N. C. 139, where a replication to a plea of coverture, stating that the husband, an alien, had been abroad for eight years, was held bad; and Story Eq. Pl. 51, n. (4,) and cases there collected.
(u) Boggett v. Frier, 11 East, 301 ; Marsh v. Hutchinson, 2 B. & P. 226; Farrer v. Granard, 1 N. R. 80, post, s. 222.
(x) Hopewell v. De Pinna, 2 Camp. 113; Doe d. Knight v. Nepean, 5 B. & Ad. 94 ;' Nepean v. Doe d. Knight, 2 M. & W. 894. 913; Doe d. George v. Jesson, 6 East, 85.
(y) Com. Dig. Bar. and Feme, (F. 1). (2) Com. Dig. Bar, and Feme, (F. 1).
(a) Per Parke, B., Gaters v. Madeley, 6 M. & W. 427, citing Richards v. Richards, 2 B. & Ad. 447;5 Nash v. Nash, 2 Mad. 133; and qualifying the observation of Lord Ellen. borough, C. J., in M`Neilage v. Holloway, 1 B. & Ald. 221.
(b) Betts v. Kimpton, 2 B. & Ad. 273.8 (c) Ante, s. 95. (d) Com. Dig. Bar. and Feme, (X.); Per Coleridge, J., Ayling v. Whicher, 6 A. & E. 264 ;h Per North, C. J., Frosdike v. Sterling, 1 Freeman, 236. (e) Post, s. 108.
(g) Bret v. Cumberland, Cro. Jac. 399 ; Com. Dig Bar. and Feme, (X.) But see Mid. dlemore v. Goodale, Cro. Car. 503. 505, where it was held that husband and wife, joint assignees of land, must join in suing on a covenant for further assurance. Woodfall, L. & T. 4th ed. 190.
(A) Beadle v. Sherman, Cro. Eliz. 608, 613; Arnold v. Bidgood, Cro. Jac. 318. See Ford v. Pumeroy, Noy, R. 136. (i) Com. Dig. Bar. and Feme, (X.)
(k) Beaver v. Lane, 2 Mod. 217; Arnold v. Revoult, 1 B. & C. 443;' Anon., 1 Bulstr. 31. As to a covenant with the wife and breach before marriage, see post, s. 108. *Eng. Com. Law Reps. 27. fId. 6Id. 22. ”Id. 33. Id. 5. *Reprinted at $2.50 per vol.