103. With respect to choses in action accruing to a feme covert survive to her; but the husband may reduce them into possession by either in his own name or in the joint names of himself and his wife the general rule is, that when a chose in action, such as a bond(l) o is given to a feme covert, the husband may elect to let his wife hav benefit of it, or, if he *thinks proper, he may take it himsel [ *79 ] and, if the husband in his lifetime brings an action upon the i ment in his own name, that will amount to an election to take it hi and to an expression of dissent on his part to his wife's having any in in it. On the other hand, he may, if he pleases, leave it as it is, a that case, the remedy on it survives to the wife; or he may, accordi the decision in Philliskirk v. Pluckwell,(n) adopt another course, and her name with his own, and, in that case, if he should die after judg the wife would be entitled to the benefit of the bond or note, as the ment would survive to her.(o) 104. On an award to pay money to the wife, or on a bond to husband wife, or to a husband and wife administratrix, the same right of ele vests in the husband,(p) as also in the case of a judgment recovere both, for this would survive to the wife ;(q) so that, although the hus could not sue alone on a bond to the wife dum sola, (r) yet, if judg thereon be recovered by husband and wife, that which was b [80] a chose in action transit in rem judicatam, and becomes of a diff nature from what it was before the coverture; and, on such judgment husband may sue either alone or jointly with the wife. (s) 105. We have already seen that the earnings of the wife, by her and labour, accrue solely to the husband; (f) but it has been held, that promises B., a feme covert, a certain sum in consideration of her effec a cure, which she does accordingly effect, she may join with her hus in assumpsit for recovery of this money, as being the meritorious caus action.(u) And the same has been held, where the action was for mo advanced, (2) or work and labour performed by the wife during coverture (1) Vin. Ab. Bar. and Feme, (T. 16); Bac. Ab. Bar. and Feme, (K.); Day v. Pad 2 M. & S. 396, n. (b); Beaver v. Lane, 2 Mod. 217; Per Lord Hardwicke, C., Bat Dandy, 2 Atk. 208; Howell v. Maine, 3 Lev. 403; 3 Salk. 64,-S. C. nom. Powe Maine, which is incorrectly reported, the bond having been to the wife during cover and not whilst sole; Per Dampier, J., 2 M. & S. 396; 1 Selw. N. P. 10th ed. 293, (1 (m) As by indorsing it in his own name; Mason v. Morgan, 2 A. & E. 30.k (n) 2 M. & S. 393. (0) See per Parke, B., Gaters v. Madeley, 6 M. & W. 426, 427 ;* Per Lord Hardwi C., Garforth v. Bradley, 2 Ves. 676, 677; Burrough v. Moss, 10 B. & C. 558.1 (p) Ankerstein v. Clarke, 4 T. R. 616, recognized Per Park, J., Arnold v. Revoult, & B. 445;m Com. Dig. Bar. and Feme, (X). (9) Per Denman, C. J., Nurse v. Wills, 4 B. & Ad. 744;n Per Parke, B., Gater Madeley, 6 M. & W. 427; Butler v. Delt, Cro. Eliz. 844; Com. Dig. Bar. and Fe (F. 1); 2 Bla. Com. 434. (u) Brashford v. Buckingham, Cro. Jac. 77. 205; Com. Dig. Bar. and Feme, (X). (x) Prat v. Taylor. Cro. Eliz. 61; but see 1 A. & E. 74.° (y) Buckley v. Collier, 1 Salk. 114; 3 Id. 63; Holmes v. Wood, 1 Barnard, 75. 2 cited 2 Wils. 424. o a feme covert, the to possession by Self and his wife: -h as a bond or let his wife have take it himse ction upon the inst Fon to take it s having any int ve it as it is. The may, accord Other course, and d die after ju bond to husbands me right of ele gment recovered though the bar (r) yet, if jud at which was be becomes of a difer such judgmen (8) e wife, by her been held, that if ion of her effe n with her hus meritorious cause tion was for mo Luring coverture if an express promise to her be alleged ;(z) but if on such a ground of action the husband sue alone, and the defence be payment to the wife, the plea should allege payment, either to the husband, in which case the wife's authority to receive such payment will be a question for the jury, or to the wife, with an express averment of her possessing such authority.(a) 106. It appears, however, difficult to define the nature of the interest, which might entitle a feme covert to join in suing with her [*81] husband, and which has been said (b) to form a substratum on which her right so to do is founded. In an action on an agreement made between A. and his wife and others (the plaintiffs) of the one part, and defendant of the other; it appeared that the plaintiffs having sued and obtained a cognovit from another party, for whom the defendant was bail; the latter, on forfeiture of the bailbond, requested forbearance from the plaintiffs towards his principal and himself, promising, in consideration of such forbearance, either to render his principal on a certain day or to pay the amount due; and it was held that, although the promise of forbearance was void quoad the wife, being in a legal view the promise of the husband, yet that it must be taken to refer to a subject-matter in which the wife was interested, and whereby she was aggrieved, being a party to the original suit; and that defendant's promise must, after verdict, be taken to be made to the plaintiffs, and consequently to the wife inclusive, although not expressly so alleged.(c) 107. When a cause of action has become vested in the wife before marriage, and a fresh promise is made to her husband and self, in respect of some new consideration moving from them jointly, as forbearance, the right of suit on such new promise is in the husband alone, or husband and wife jointly, (d) although on the original promise husband and wife must have joined ; (e) nor does it make any difference in this respect, if the [*82] cause of action accrued to the wife in autre droit ;(f) but the character of the original debt is not thus altered by stating an account concerning it with the husband on behalf of himself and his wife.(g) 108. Fourthly.-Husband and wife must, it has been held, sue jointly for breach of a covenant running with land of which they are joint assignees.(h) So they must join in debt for rent, due before the coverture under a lease by the feme whilst sole, and in detinue for charters of the wife's inheritance ;(i) and it is a general rule that, when a complete cause of action has accrued to the wife dum sola, as for breach of covenant, or on a bond, bill of exchange or promissory note, or in respect of a debt then due (2) Bac. Ab. Bar. and Feme, (K.); Selw. N. P. 10th ed. 290, n. (7); Hilliard v. Hambridge, Aleyn, 36, where the promise was to husband and wife. (a) Offley v. Clay, 2 Scott, N. R. 372. (b) Per Tindal, C. J., 1 A. & E. 75.P See Bendix v. Wakeman, 12 M. & W. 97 ;* Guyard v. Sutton, 15 L. J., N. S., C. P. 225. (c) Nurse v. Wills, 4 B. & Ad. 739;9 affirmed on error, 1 A. & E. 65;P and see the cases there collected. (d) Per Lord Lyndhurst, C. B., Willis v. Nurse, in error, 1 A. & E. 72.p (g) Hopkins v. Logan, 5 M. & W. 241.* (f) Ante, s. 96; and Wills v. Nurse, supra. (h) Middlemore v. Goodale, Cro. Car. 503. 505; Woodfall, L. & T. 4th ed. 190. See Wootton v. Steffenoni, 12 M. & W. 129.* (i) Com. Dig. Bar. & Feme, (V.); Co. Litt. 55, b.; Brereton v. Evans, Cro. Eliz. 700. PEng. Com. Law Rep. 28. Id. 24. *Reprinted by T. & J. W. J. at $2.50 per vol. the baron and feme must sue jointly.(k) It seems also (notwithsta some contrary decisions) that they must sue jointly on choses in vested in the feme before marrriage,(l) in cases *where the ca [*83] action accrued subsequently.(m) And in a very recent case held, that an action could not be maintained by the assignees of a ban on a promissory note given to the bankrupt's wife dum sola, and pa on demand, the Court intimating an opinion that the action might been brought by the assignee and the wife jointly, or that if it had brought by the husband and wife, and the husband's bankruptcy had pleaded in bar, such plea might have been answered by shewing th action was, in fact, the action of the assignees, and that the husb name was used by their direction, and for their benefit.(n) 109. So in assumpsit by husband and wife, a replication to a p bankruptcy of the husband, and due appointment of assignees, stated the debts declared on, due to the wife before coverture, were then ass to trustees in trust for herself, and afterwards for children; that the hu and wife (the plaintiffs) appointed such trustees their attorneys fo recovery of the said debts; and that for such purpose, and for the sole fit of the wife and children, the action was brought in the names plaintiffs, by direction of the trustees; and this was held good on s demurrer, *the right to sue on a chose in action so assigne passing to the assignees of the husband.(0) [*84] 110. Lastly. For all causes of action on any implied promise accrued to the wife in autre droit, and which therefore survive to h she must be joined with her husband ;(q) and if part of the assets testator be paid to defendant during the coverture of the executrix, i been held, that she must join with her husband for its recovery, and d in her representative character.(r). 111. Infancy confers a personal privilege, of which none can take a tage but the infant himself; therefore an infant may sue on a co entered into with him ;(s) as for a breach of promise of marriage ;(t) b (k) Where a feme sole, having commenced an action, marries before trial, the hu need not be made a party to the suit by scire facias. Walker v. Golling, & W. 78.* (1) See Hopkins v. Logan, 5 M. & W. 241 ;* Rumsey v. George, 1 M. & S. 180 Com. Dig. Bar. & Feme, (V.); Bac. Ab. Bar. & Feme, (K.); 1 Roll. Ab. 347, R. arg. Rose v. Bowler, 1 H. Bl. 109; Per Lord Kenyon, C. J., Milner v. Milnes, 3 631; Per Lord Hardwicke, C., Bates v. Dandy, 2 Atk. 208. (m) In M'Neilage v. Holloway, 1 B. & Ald. 218, it was held that the husband sue alone on a bill of exchange to the wife before marriage, which became due aftery but see Per Parke, B., Gaters v. Madeley, 6 M. & W. 427 Richards v. Richards, Ad. 452, 453; Nash v. Nash, 2 Mad. 133; Judgment, Hart v. Stevens, 14 L. J., N. B., 148; Scarpillini v. Atcheson, Id. 333. (n) Sherrington v. Yates, (in error), 12 M. & W. 855, reversing judgment in S. M. & W. 42; Pierce v. Thornely, 2 Sim. 167; Mitford v. Mitford, 9 Ves. jun. 87. (0) Parnham v. Hurst, 8 M. & W. 743.* (p) Co. Litt. 351, b; Richards v. Richards, 2 B. & Ad. 447; Beamond v. Long Car. 208. 227. (9) Com. Dig. Bar. & Feme, (V.); Bac. Ab. Bar. & Feme, (K.); Field v. Al M. & W. 694.* (r) Anon., 1 Salk. 282; Com. Dig. Bar. & Feme, (V.) See Yard v. Ellard, 1 Chitt. Pl., 5th ed. vol. i. 34. 117; (8) Warwick v. Bruce, 2 M. & S, 205; Bac. Ab. Infancy, (I. 4.) (t) Holt v. Ward, 2 Stra. 937. Eng. Com. Law Reps. 22. *Id. 22. Reprinted at $2.50 per vol. fore trial, the bas 1 M. & S.180 F sv. Richards, 2B amond v. Long, C ); Field v. Allen d v. Ellard, 1 per vol. infant cannot sue on a penal statute, for the informer must appear in person, or by attorney ;(u) whereas an infant can only sue by guardian or prochein ami.(x) The prochein ami not being, however, a party to the suit, but simply a person appointed by the Court to look after the interests of the infant, and manage the suit for him.(y) 112. A person non compos mentis may maintain an action, which should be brought in his own name, and not in that of his [*85] committee;(z) and the wife of a lunatic who has no committee, has sufficient implied authority to sue in his name. (a) An idiot being incapable of appointing an attorney must sue in person; but a lunatic may sue either in person or by attorney.(b) 113. An alien friend may bring an action concerning personal property; but he cannot hold real property, which, upon office found, vests in the crown ; (c) and no action can be maintained either by or in favour of an alien enemy,(d) unless resident here by the king's license, (e) or unless the contract declared on be expressly sanctioned by the crown, as if it be effected under a trading license.(g) It seems, however, that when the right accrued previous to the alien becoming an enemy, the remedy is only suspended during war.(h) 114. Similar to the case of an alien enemy, as regards the temporary incapacity of suing on a contract, is that of a person civiliter mortuus, as an outlaw or an attainted *felon.(i) But the right of these persons to the protection of the law is only suspended, not irrevocably lost; [*86] the disability may be removed by a pardon or reversal of the outlawry, or attainder, or, it should seem, by suffering the punishment inflicted for the crime; and as a matter of course, the competency to contract, and right to sue, revive.(k) And although an outlaw is not entitled to come into a court of justice to establish a demand of his own; yet he has a right to come into court to get rid of irregular proceedings, or, in other words, to complain that the power of the court has been used improperly against him.(1) (u) 18 Eliz. c. 5, s. 1. (x) Chitt. Stat. 762, n. (b); 2 Chitt. Arch. Pr., 7th ed. 889. See Morgan v. Thorne, 7 M. & W. 400 ;* Watson v. Frazer, 8 M. & W. 660;* Gilbert v. Schwenck, 14 M. & W. 488.* (y) Sinclair v. Sinclair, 13 M. & W. 640; Duckitt v. Satchwell, 12 M. & W. 779.* As to 9 & 10 Vict. c. 95, s. 64, see Appendix. (2) Cocks v. Darson, Hobart, 215; Thorn v. Coward, 2 Sid. 124. (b) 2 Chitt. Arch. Pr. 7th ed. 909. (c) Co. Litt. 2, b.; and Mr. Hargrave's Notes, Id. 129, b.; 1 Bla. Com. 372. But see post, p. 238 a. (d) Co. Litt. 129, b.; Brandon v. Nesbitt, 6 T. R. 23; O'Mealey v. Wilson, 1 Camp. 482. See M'Connell v. Hector, 3 B. & P. 113. (e) Wells v. Williams, 1 Salk. 46; Casseres v. Bell, 8 T. R. 166; Co. Litt. 129, b. Mr. Hargrave's note (3). (g) Fenton v. Pearson, 15 East, 418. (h) Co. Litt. 129, b.; Flindt v. Waters, 15 East, 260. (i) 3 Bla. Com. 284; Litt. s. 197; Co. Litt. 128, a., 129, b.; Bullock v. Dodds, 2 B. & Ald. 258, 275; 2 Chitt. Arch. Pr. 7th ed. 926; Aldridge v. Buller, 2 M. & W. 412;* Walker v. Thellusson, 11 Law Journ., N. S., Q. B. 14. (k) Chitt. jun. Contr. 3rd ed. 184. Outlawry may always be pleaded in abatement; Litt. s. 197; Co. Litt. 128, b.; and in bar, if the cause of action be forfeited; Bac. Ab. Outlawry, (D. 3). (1) Per Wightham, J., Walker v. Thellusson, 11 Law Journ., N. S., Q. B. 14, 15; Hawkins v. Hall, 8 Id., Chanc. 225. *Reprinted at $2.50 per vol. [*87] *CHAPTER IV. 1. BANKRUPTCY AND INSOLVENCY, ss. 115-128. 2. EXECUTORS AND ADMINISTRATORS, ss. 129-136. 1. BANKRUPTCY AND INSOLVENCY. 1. Legal effect of Bankruptcy, s. 115. Right of the Assignees to sue, ss. 116 Rule as to the Joinder of Assignees, and in case of a New Appointment, ss. 119. Right of the Bankrupt to sue, ss. 122-124. Legal effect of Insolvency, s. 125. of the Assignee and of the Insolvent to sue, ss. 126-128. 115. THE effect of bankruptcy is, to vest in the official and cred assignees, on their appointment, (or in the trustee under 7 & 8 Vict. s. 8), without any conveyance or deed of assignment, all such real personal estate of the bankrupt as he was equitably as well as legally tled to at the date of the act of bankruptcy ;(a) and for property of description the assignees are empowered to sue in their own nam The title of the assignees, moreover, to the bankrupt's real property, from their appointment, and their title to his personal property relates to the act of bankruptcy ;(c) *but the harsh effect of this doo [88] of relation has been mitigated by the provision of the statu Geo. 4, c. 16, s. 82, and 2 & 3 Vict., c. 29, s. 1, which were framed a view to the protection of persons bonâ fide, and without notice of th of bankruptcy, paying money to or contracting or dealing with a bank after such act of bankruptcy, but before the date and issuing of the fi 115 a. The effect then of the various provisions in the enactments ing to bankrupts, is to give the assignees of an uncertified bankrup beneficial interest in all property acquired and contracts entered int him, and to make the bankrupt acquire property or contract for their be only, and in the character of an agent for them, so that they may, when they please, disaffirm his act, which is however valid until they do When therefore an uncertificated bankrupt enters into a contract, he may thereon in his own name; and it is no plea that the property is veste or the contract made, for the benefit of the assignees, unless it contain averment that they have interfered. The same rule applies in the ca a bankrupt who has been twice certificated, but who has not paid 15 the pound under the second fiat, with respect to property acquired or tracts entered into by him since the certificate.(e) (a) 1 & 2 Will. 4, c. 86, ss. 22. 25, 26; 6 Geo. 4, c. 16, s. 63, 64, 65; 5 & 6 V 122, ss. 48. 51. 53; per Pollock, C. B., M'Intyre v. Miller, 13 M. & W. 730; D'Arn Chesncau, 13 M. & W. 796; Trott v. Smith, 12 M. & W. 688; Mogg v. Baker, 31 W. 195; per Parke, B., Britten v. Perrot, 2 Cr. & M. 600. (b) Supra, Dunn v. Hill, 11 M. & W. 470. As to actions by the assignees of a Stock Company, see 7 & 8 Vict. c. 111, s. 8. By assignee of a bankrupt member firm, and solvent partner, see 5 & 6 Vict. c. 122, s. 31. (c) See the judgment, 14 M. & W. 273, 274. (d) Kynaston v. Crouch, 14 M. & W. 266; Pearson v. Graham, 6 A. & E. 899 Coleridge J., Rothwell v. Timbrell, I Dowl, N. S. 778. (e) Herbert v. Sayer, 5 Q. B. 965, 974, overruling as this point Young v. Rishw Eng. Com. Law Reps. 48. |