So also of bonds and notes made payable to her. Non-joinder husband may, if he please, take advantage of it, and recover in an action on it, in which action he may join his wife as a co-plaintiff. And if he die without taking any such step, the right to sue upon it will survive to the wife. One of the earliest authorities on this subject is Brashford v. Buckingham, Cro. Jac. 77., where the wife had undertaken to cure a wound for the sum of ten pounds, which the patient was ungrateful enough not to pay, and after she and her husband had recovered judgment in an action of debt, a writ of error was brought in the Exchequer Chamber on the ground that the married woman could not But the court said that being grounded on a promise made to the wife, upon a matter arising upon her skill, and on a performance to be made to the wife, she is the cause of the action, and so the action brought in both their names is well enough, and such action shall survive to the wife. Wherefore the judgment was affirmed. On the same principle, if a bond be made payable to her, she and her husband may sue upon it. Day v. Padrone, 2 M. & S. 396 note. (a) So if a promissory note be made sue. (a) Upon a deed inter partes, made during coverpleaded in bar. ture, the effect of the autho rities seems to be that, primâ band, without his having reduced it into possession, by dissenting from her right in some operative way, as by taking a new security, so as to vest the interest in himself. Therefore, the coverture of the plaintiff in such payable to her. Philliskirk v. Pluckwell, 2 M. & S. 393. And there is a very curious case of Richards v. Richards, 2 B. Adol. 447., in which a married woman took a note from her own husband and two other persons. And it was held, that though no one could have sued on it in his lifetime, yet, that, after his death, she might sue the two surviving makers; and that decision is approved of in Gaters v. Madeley, Gaters v. 6 Mee. & W. 423., which is, I believe, the last case on the subject. In that case a promissory note was given to a married woman during the coverture. She survived her husband, and having, afterwards, herself died before the note was paid: It was held, that her executor was entitled to maintain an action upon it. The rule is very clearly laid down in the judgment of Baron PARKE. "This," said his lordship, "is an action on a promissory note an instrument on which no one can sue unless he was originally party to it, or has become entitled to it under one who was. A promissory note is not a personal chattel in possession, but is a chose in action of a peculiar nature. It has, indeed, been made by statute assignable and transferable according to the custom of merchants, like a bill of exchange. Still, it is a chose in action, and nothing more. When a chose in action, such as a bond or note, is given to a feme coverte, the husband may elect to let his wife a case cannot be pleaded in be pleaded only in abatebar, and an action brought ment. (Bendix v. Wakeby the plaintiff, the non- man, 12 M. & W. 97.) joinder of the husband, can Madeley. What is sufficient reduction in possession. have the benefit of it; or, if he thinks proper, he may take it himself; and if, in this case, the husband had in his lifetime brought an action upon this note in his own name, that would have amounted to an election to take it himself, and to an expression of dissent on his part to his wife's having any interest in it. On the other hand, he may, if he pleases, leave it as it is; and, in that case, the remedy on it survives to the wife: or he may adopt another course, and join her name with his own, and, in that case, if he should die after judgment, the wife would be entitled to the benefit of the note, as the judgment would survive to her." (a) (a) Though it is settled law that a promissory note, given to the wife during coverture is a chose in action, and not a personal chattel vested in the husband, and that upon his death the right to sue on it survives to the widow, unless the husband has reduced it into possession, it is still a point of nicety and difficulty to determine what is a reducing into possession by the husband, such as to deprive the wife of her subsequent remedy. In the recent case of Hart v. Stevens, 14 Law Journ., Q. B. 148., it seems to have been assumed that receiving money on it, or bringing an action for it, are alone sufficient reductions into possession ; a doctrine apparently sanctioned by that of Lord KENYON C. J. in Milner v. Milner, 3 T. R. 631., and by Lord HARDWICKE in Garforth v. Bradley, 2 Ves. Senr. 675., who puts it, on the ground of dissent to the interest remaining in the wife, thereby evidenced on the part of the husband. In the still later case of Scarpellini v. Atcheson, 14 Law Jour. Q. B. 333., a case which presents some noticeable features, the plaintiff was a widow, and the payee of a promissory note made to her during coverture by the defendant. The husband caused the wife, as the plea stated, "in his marital right," to indorse to F., who after his death delivered it to the wife, who then brought this action upon it. The Court embodied, without dissent, the doctrine we have just stated in the judgment, and held that the facts as stated did not amount to a reduction Here you see all the possible cases are put, and the consequence of each pointed out, which makes this judgment a very useful one for the purpose of practical reference. Having thus disposed of the considerations arising on contracts made with or by infants and married women, I will postpone the conclusion of this branch of the subject till the next lecture. into possession by the hus- It As to what amounts to reduction into possession, see further instances in Burn ham v. Benett, 9 Jur. 888., and Hart v. Stevens, above cited, where the administrator of a deceased widow sued on a note given her dum sola; it was held that the husband of the deceased, by receiving interest on the note during the life of the wife, had not reduced it into possession; and, accordingly, that he was a competent witness for the plaintiff by stat. 6 & 7 Vict. c. 85., notwithstanding any ultimate interest in the assets, and that receipts of interest by him were available to take the case out of the statute of Limitations. Q INTOXICATED PERSONS. ALIENS. CORPO- PURSUING the inquiry upon which I entered in the last lecture with regard to the competency of the parties to Contracts, and having disposed of the cases of Infancy and Coverture, the next in order is that of persons of nonsane mind, Insane Persons. Whose disability arises, not, as in the two former cases, from a positive rule of law, but from the very nature of their disorder itself. In the earliest ages of our law the rule which common sense dictates on this subject appears to have prevailed, namely, that a person deprived of the use of that reason which is the instrument, if I may so say, with which men contract, shall not be bound to his own injury by contracts made while in such a situation. Thus, in Fitzherbert's Natura Brevium, 202. n. it is laid down that a person who had enfeoffed another of his land while non compos might, on recovering his intellects, avoid the feoffment. But soon afterwards a doctrine was established of the most absurd description which it was possible |