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.(x) 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) (s) Judgment, The Fishmongers' Company v. Robertson, 6 Scott, N. R. 105, 106; Reg. v. The Mayor of Thetford, 2 Ld. Raym. 848; The Barber Surgeons of London v. Pelson, 2 Lev. 252; The East London Waterworks Company v. Bailey, 4 Bing. 287. (t) 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. (x) 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. Legal Effect of Marriage, s. 94. When the Husband must sue alone, ss. 95-98. the Wife must sue alone-General Rule and Exceptions, ss. 99-101. Whe Husband may elect to sue alone or jointly with his Wife, ss. 102-107. Whe Husband and Wife must sue jointly, ss. 108-110. Infant, Non Compos Mentis, Outlaw, &c., ss. 111-114. 94. THE effect of marriage at common law is, to merge the sep existence of the wife during coverture, to vest in the husband during period a right to the rents and profits of the wife's real estate, the int in her chattels real, and the power of disposing of them, except by the right of reducing into possession her chattels real and choses in ac and an absolute property in the rest of her personal estate, in possession and where property real or personal falls to the wife during coverture husband acquires a similar interest therein; (c) as, in chattels purchase the wife out of money settled to her separate use before marriag However, if the husband do not exercise the power of disposing of wife's chattels real, or of reducing into possession either her chattels re choses in action, *these descriptions of personalty survive to [*71] wife; but if the husband be the survivor, although chattels which he previously held in right of his wife thereupon vest absolutel him, yet he must sue for chattels real, if not in possession, as well as choses in action, as administrator to his wife, and not in his indivi character; and on his death, her representatives, and not his, must su their recovery. (d) It may also be proper to add, that, in personal act a marriage de facto is sufficient to entitle husband and wife to recove right of the latter.(f) 95. We shall next proceed to consider, first, when the husband must without joining the wife; secondly, when the wife may sue alone; thir when the husband may elect to sue alone, or jointly with his wife; fourthly, when the husband and wife must join. And first, by reaso the merger of the wife's separate existence, her incapacity to contract, the vesting of her property in her husband, (g) as the legal consequenc coverture, it follows, that the husband must sue alone for wages (h) accru (a) As to the recent statute 7 & 8 Vict. c. 66, vide Appendix. (b) Com. Dig. Bar. and Feme, (E.); Bac. Ab. Bar. and Feme, (C.); 2 Bla. Com. 4 435; Co. Litt. 300, a.; Maddox v. Winne, 3 Salk. 62. See Rowcliffe v. Edmonds, & W. 12.* (c) Com. Dig. Bar. and Feme, (E. 3); Bac. Ab. Bar. and Feme, (D.); Agar v. Blet 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); Executors and Administrators, (H. 4); 2 Bla. Com. 434, 435; Betts v. Kimpton, 21 Ad. 273;s Per Lord Tenterden, C. J., Richards v. Richards, 2 B. & Ad. 452-454; Co. Litt, 46, b., 299, b., 300, a., 351, b. (f) Machell v. Garrett, 3 Salk. 64; Norwood v. Stevenson, Andrews, 227. (g) Sect. 94. (h) Per Lord Abinger, C. B., Dengate v. Gardiner, 4 M. & W. 7. See Glover v. prietors of Drury Lane, 2 Chitt. R. 117. IL DEATH. ne, ss. 95-98. W 99-101. When t 102-107. When the Compos Mentis, Ala nerge the separa sband during suc estate, the interes n, except by wi d choses in action e, in possession: ing coverture, ittels purchaselt efore marriage. !disposing of is her chattels real lty survive to the ough chattels vest absolutely on, as well as in in his individe his, must sue personal actions wife to recover [*72] to his wife, *and for the profits of a business carried on by her,(k) 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 autre 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 ;(q)) 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 money 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 plaintiffs 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 [*74 ] 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 ;(z) though for rent subsequently (k) Saville v. Sweeny, 4 B. & Ad. 514. 522. 524.t (1) Buckley v. Collier, 1 Salk. 114; 3 Id. 63; Bac. Ab. Bar. and Feme, (D.); but see per Cur, Holmes v. Wood, 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;t 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." (r) Nurse v. Wills, 4 B. & Ad. 739; affirmed in error, 1 A. & E. 65. (s) 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. 73.9 (u) Abbot v. Blofield, Cro. Jac. 644. (x) 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 survives to the husband. Gresham v. Woodyer, 1 Salk. 116. (z) 32 H. 8, c. 37, s. 3; Co. Litt. 351, a. *Eng. Com. Law Reps. 24. Id. 12. Id. 24. Id. 28. Reprinted at $2.50. per vol. accruing under a joint lease from husband and wife, no action can be tained by the husband, whose interest has determined by the wife's deat The husband is also entitled to administer to the wife(b) (unless the riage was void ab initio ;(c)) and he must sue in his representative char in order to recover her chattels real and personal not previously red into possession, whether vesting in her whilst sole or covert; as als 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 cannot sue alone at common law; and this is a necessary legal consequ of marriage ;(e) and the rule in suits in equity is, in ordinary cases same, subject, however, to some exceptions wholly unknown at law Hence, a feme covert cannot sue without her husband in the superior c at *Westminster, as a sole trader by the custom of the city of 1 [*75] don.(h) The wife's disability to sue alone ceases, however, if marriage be formally pronounced, or be discovered, to be void ab initi or if it be dissolved by a divorce a vinculo matrimonii ;(k) but not if a tence of divorce a mensâ et thoro be pronounced, nor if the parties exe a deed securing a separate maintenance to the wife.(1) 100. A feme covert may also sue alone if the husband be civiliter tuus, whether permanently or for a term, by reason of his exile or bar ment, (m) attainder,(n) or transportation, (o) under a judicial sentence (tho the term of transportation be passed at the hulks ;(p)) but the wife's to sue ceases on the reversal of the outlawry on attainder, or pardon of offence, or on having undergone the punishment awarded to it.(g) Abj tion of the realm was equivalent to the civil death of the p [76] abjuring, and entailed similar consequences. (r) Again, where husband is an alien enemy, his position is analogous to that of a person tra ported ;(s) and in this case, it appears that the wife resident in this cou may sue as a feme sole. But it seems doubtful whether this excep would include the wife of an alien ami who had never resided in this co (a) Hill v. Saunders, 4 B. & C. 529. (c) Haydon v. Gould, 1 Salk. 119. (b) 2 Bla. Com. 435. (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 (g) Story, Eq. Pl. s. 61. s. 61. (h) Caudell v. Shaw, 4 T. R. 361; Per De Grey, C. J., 2 W. Bla. 1081; and see judgment in Beard v. Webb, 2 B. & P. 97. (i) See Anstey v. Manners, 1 Gow, R. 10; Glasspole v. Young, 9 B. & C. 696.b (k) See Marshall v. Rutton, 8 T. R. 548. (1) Per Abbott, C. J., Lewis v. Lee, 3 B. & C. 297; 1 Selw. N. P. 10th ed. 283. (m) Belknap's case, Co. Litt. 132, b, 133, a; Weyland's case, Id. 133, a; Lea Schutz, 2 W. Bla. 1195. 1197, and cases there cited; Hatchett v. Baddely, 2 W. Bla. 1 1081, 1082; Bac. Ab. Bar. and Feme, (M.). (n) Co. Litt. 133, a. (0) Jewson v. Read, Lofft, 142; Sparrow v. Carruthers, cited, 1 T. R. 6, and 1 B. & 359. (p) Ex parte Franks, 7 Bing. 762;d and see the cases there cited. (9) In Carrol v. Blencow, 4 Esp. 27, it was held that the wife of a person transpor who remained abroad after the term of transportation had expired, might sue alone; see Chitt. 3rd ed. 179. (r) Co. Litt. 133, a; arg., Lean v. Schutz, 2 W. Bla. 1197; 4 Bla. Com. 333; Per Grey, C. J., and Blackstone, J., Hatchett v. Baddeley, 2 W. Bla. 1081, 1082. (s) Per Parke, B., Barden v. De Keverberg, 2 M. & W. 65. a Eng. Com. Law Reps. 5. Id. 17. Id. 10. dId. 20. try;(t) and if the husband be an Englishman, mere residence abroad does not render the wife competent 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. (x) 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 it ;(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 [ *78] in covenant for not repairing, or the husband alone may bring the action ;(g) 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.( (t) Barden v. De Keverberg, 2 M. & W. 61. 139, where a replication to a plea of coverture, been abroad for eight years, was held bad; and collected. e.(k) See Stretton v. Busnach, 1 Bing. N. C. stating that the husband, an alien, had Story Eq. Pl. 51, n. (4,) and cases there (u) Boggett v. Frier, 11 East, 301; Marsh v. Hutchinson, 2 B. & P. 226; Farrer v. Granard, I N. R. 80, post, s. 222. (x) Hopewell v. De Pirna, 2 Camp. 113; Doe d. Knight v. Nepean, 5 B. & Ad. 94 ;f 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). (z) 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; Nash v. Nash, 2 Mad. 133; and qualifying the observation of Lord Ellenborough, 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; Čom. Dig Bar. and Feme, (X.) But see Middlemore 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. Pomeroy, 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. Id. 22. Id. 33. Id. 5. *Reprinted at $2.50 per vol. |