case go to and be vested in the successor in office of such official assignee alone, or jointly with the assignee chosen by the creditors, if any, as the case may be, and whenever any assignee or assignees shall die, resign, or be removed or a new assignee shall be duly appointed, all the insolvent's estate, real and personal, and all such effects and credits as were and remained vested in such removed or deceased assignee, shall vest in the new assignee, either alone or jointly with the existing assignees as the case may require, (f) and no action at law or suit in equity shall be abated by such death, resignation, removal or new appointment, but the court in which any action or suit is depending, may, upon the suggestion of such death, resignation, or removal, and new appointment, allow the action to be continued as in the case of actions by assignees of bankrupts. (g)

(f) 5 & 6 Vict. c. 116, s. 7.

(g) 1 & 2 Vict. c. 110, s. 53; 7 & 8 Vict. c. 96, s. 16.

335

CHAPTER XIII.

OF THE PLAINTIFFS IN ACTIONS EX CONTRACTU WHEN THERE HAS BEEN A CHANGE OF INTEREST BY

MARRIAGE.

SECTION I.—Deeds—Of the husband's right of action upon covenants running with the wife's realty— Covenants annexed to a reversion granted to the husband and wife-When the wife ought to be joined with the husband as a plaintiff, and when she may, or may not be joined, at his electionActions in respect of rents, profits, and services issuing out of the wife's lands-Reduction of the wife's choses in action into possession-Breaches of the wife's real contracts accruing before coverture-Bonds, personal covenants, and contracts under seal, made with the wife before marriage -Contracts under seal made with the wife alone, or with the husband and wife jointly, during

coverture.

SECTION II.-Simple contracts-Of the marital rights of the husband in respect of bills of exchange and promissory notes made payable to the wife before marriage-Also, in respect of simple contracts entered into with the wife during coverture, and founded upon a consideration moving from her-Simple contracts concerning the wife's lands-Forbearance from the enforcement of the wife's contract a sufficient consideration for an express promise to the husband in his own right- Of the husband's right to administer when the wife is a feme covert executrix or administratrix-Of the wife's right of action in the name of her husband when separated from him-When the husband is civiliter mortuus and the wife entitled to sue as a feme sole.

SECTION III.-Dissolution of the coverture by death-The husband's rights by survivorshipCovenants annexed to the wife's estates of inheritance-When the surviving husband ought to sue and when the heir at law of the wife-The surviving husband's right of administration to the wife's personal estate for his own benefit-His right of action upon covenants annexed to the wife's leasehold estates-Also, in respect of the wife's unrecovered choses in action-The wife's rights by survivorship-The surviving wife's right to her freehold and leasehold estates, and to all covenants annexed to such estates-When the surviving wife ought to sue, and when the personal representative of the husband for rent reserved on an under-lease of the wife's leaseholds-The wife's right by survivorship to all contracts under seal made with her alone, or with her and her husband jointly, during coverture-Also, to all bills of exchange and promissory notes made payable to her during coverture-And to all her unrecovered choses in action.

SECTION I.

OF THE HUSBAND'S RIGHT OF ACTION UPON THE WIFE'S REAL AND PERSONAL CONTRACTS UNDER SEAL.

Covenants running with the wife's lands.—Upon contracts or covenants running with the wife's lands, such as covenants to repair, or to pay rent, or to grind corn at the wife's mill, broken during the coverture, the husband may sue alone, or he may join his wife with him as a co-plaintiff, whether such covenants have been entered into with the wife, or her ancestors, or assignors, prior to the coverture or with the husband and wife jointly during the coverture. (a) Upon covenants for the quiet enjoyment of land leased to husband and wife, (b) and upon all covenants annexed to reversions granted to the husband and wife jointly, the husband also may sue alone, or he may make his wife a co-plaintiff in the action. (c)

But when the wife's freehold is to be recovered, she must join with her husband in the proceedings, as in instances of disseisin, (d) and for breaches of covenant for title, and further assurance of the wife's lands. It has been held, that if A. conveys land to B. in fee, and covenants with him, and his heirs and assigns, to make further assurance, and these lands are assigned to J. S. and his wife, and the heirs of J. S., the husband alone, without the wife, cannot have an action upon the covenant, (e) but when the title does not come in question, and the action is merely personal, and compensation is sought only in damages, the husband may or may not at his election join the wife, for "that which the husband may discharge alone, and of which he may make disposition to his own use, for the recovery of this he may well have an action in his own name. (ƒ) In all actions also for a profit or demand accruing during coverture in respect of the real estate of the wife, the husband and wife may join, or the husband may sue alone, as in debt, for not setting out by this belonging to the wife, (g) and so for rents and services accruing to the husband

(a) Beaver v. Lane, 2 Mod. 217. Aleberry v. Walby, 1 Str. 229. Dunstan v. Burwell, 1 Wils. 224.

(b) Bro. Abr. Covenant, pl. 10.

Brett v. Cumberland, 3 Bulst. 163; Cro. Jac. 399.

(d) Odill v. Tyrrell, 1 Bulst. 21; Bro. Abr.

Covenant, pl. 10. Baron et Feme, ib. pl. 23.

(e) Middlemore v. Goodale, 1 Roll. Abr. 348; (T) 5 Cro. Car 505.

(f) Per Dodderidge, J., Brett v. Cumberland, 3 Bulstr. 164; Cro. Jac. 399.

(g) Beadle v. Sherman, Cro. Eliz. 608, 613.

during the coverture, either in respect of the real estate of the wife, (h) or as annexed to a reversion granted to the husband and wife jointly. (i)

Reduction of the wife's choses in action into possession.-If a real contract, or covenant running with the wife's lands, has been broken prior to the coverture, or rent is in arrear, or any payment, profit, or service issuing out of the wife's lands, has accrued due, and has thus become a chose in action at the time of the marriage, the wife must be made a co-plaintiff with the husband in any action brought by the latter for the recovery thereof. Upon all bonds and personal covenants also made with the wife before marriage, and upon all other choses in action belonging to the wife, the husband and wife must sue jointly. The husband acquires by the marriage a qualified property only in the wife's choses in action; he has the power of reducing them into his possession, but until that be done, they remain the property of the wife. In order to get them into his possession, he must bring a joint action in his own name and that of his wife, he may then recover judgment in the names of himself and his wife, and upon such judgment the husband alone may sue out execution and receive the amount of the debt, and thus acquire possession of the wife's chose in action; but if he neglects to bring such joint action, or, having brought the action, if at any time before taking out the execution he should die, and the wife survive him, she alone will be entitled to the debt, and may take out execution for her own benefit. (k)

CONTRACTS UNDER SEAL made with the wife during coverture.-Upon bonds and other personal contracts under seal, which have been entered into during the coverture with the wife separately, (1) or with the husband and wife jointly, (m) the husband may sue alone, treating them as his own contracts, or he may elect to give the wife an interest therein, and join her as a co-plaintiff in the action. (n) The wife, indeed, may sue alone and recover upon a contract under seal made with her durant coverture, if the coverture is not pleaded in abatement. (o)

SECTION II.

OF THE HUSBAND'S RIGHT OF ACTION UPON THE WIFE'S SIMPLE CON

TRACTS.

Bills of exchange and promissory notes payable to the wife. The husband may sue alone upon all bills of exchange and promissory notes payable to the wife before marriage, and not indorsed by her, for the marriage absolutely vests all such bills and notes in the husband. (a) In the exercise of his marital rights, also, he may at once indorse them, the wife's power of assignment over them being superseded by the marriage, and vested in the husband. (b) Upon bills and promissory notes also, made payable to the wife during the coverture, the husband may sue alone, (c) or jointly with his wife. (d) But upon all simple contracts, except bills of exchange and promissory notes, to entitle the wife to be joined as a co-plaintiff with her husband, the promise must not only be made to the wife, but the consideration upon which it is founded must move from her. Bills of exchange and promissory notes of themselves import a consideration, unless the contrary be shown; but in other cases the cause of action must appear to arise wholly from the act of the wife, as well as the promise be made to her, otherwise she is improperly constituted a party to the action.

SIMPLE CONTRACTS, founded upon a consideration moving from the wife. If the personal labour and skill of the wife form the consideration for the promise, (as if a man, in consideration that she will cure a wound, or instruct his daughter in needlework, promises to pay her 107..) she may be joined with her husband as a co-plaintiff in an action to recover the money; (e) but if the wife performs the work, without any express promise having been made to pay the money to her, she cannot be made a co-plaintiff in the action, as the husband alone is entitled to the fruits. of her labour, and the law will not respect of her personal labour and

imply any promise to the wife in services, but to the husband alone,

296, s. c. Mason v. Morgan, 2 Ad. & E. 30; 4 N. & M. 46, s. c.

(d) Philiskirk v. Pluckwell, 2 M. & S. 393. Gaters v. Madeley, 6 M. & W. 427.

(e) Brashford v. Buckingham, Cro. Jac, 77, 205. Fountain v. Smith, 2 Sid. 128.