CHAPTER III. RIGHTS ARISING FROM ACTS DONE IN THE MARRIAGE STATE. WIFE'S EARN- Belong exclusively to the husband. She cannot contract. Nor give a discharge. To the produce of the wife's industry, in whatever way exerted, during the union, the husband, and not the wife herself, is entitled; the disabilities of coverture preventing her from making any contract or agreement except as his instrument and agent; and therefore, whatever income or return may accrue from any act done by her in the marriage state must belong to him as her principal. And he alone can give a discharge for any demand arising from her services; or at all events if the debtor rely on a dismust be proof of charge from her, he must aver and prove that she gave it in the character of agent for her husband. Put the case, therefore, of a married woman acting in a family as nurse or laundress; and that her husband brings an action for her charges; and suppose that the defendant, who peradventure knows nothing of her husband, relies on payments made to her such payments would be no answer to the action unless they were alleged and shown to have been received If a payment is made to her there her authority to receive it. by her with the assent of her husband. Thus, in Offley v. Clay (a), to a count for work done and attendance given by A. (the wife of the plaintiff) for the defendants and at their requests, the defendants pleaded payments made from time to time to the wife, and acceptance by her, in satisfaction of the cause of action. The plea was held bad for not averring that the wife was authorised by the plaintiff to receive the payment (6). Upon the same principle of individual incapacity, the wife, where a bill of exchange or promissory note is given to her, receives it as agent for her husband. He alone can indorse (c) or sue on it. And so absolute is the right vested in him, that in such a case the party sued on the bill or note will not be allowed the benefit of setoff in respect of a debt which was due to him from the wife dum sola (d). This is certainly going a great way, considering that the husband by the marriage becomes responsible for the debts of the wife contracted by her when sole. WIFE'S EARN INGS, &c. Bill or note pay able to her as a married woman. If a bond be given to husband and wife, the husband Bond. alone may declare on it as on a bond made to himself (e). So likewise a legacy left to a married woman must be paid to her husband; and payment to herself will be bad (ƒ). (a) 2 Man. & Gr. 172. (b) The points marked for the plaintiff were, that the plea was bad, for that no authority was averred to have been given by the plaintiff to his wife for her to accept the said sum as therein alleged, and for the other cause of demurrer specially assigned. The points marked for the defendants were, that, as it necessarily follows from the allegations in the first count that the wife had the authority of the husband to earn the money, she must also have had au- (c) Mason v. Morgan, 2 Adol. & (d) Burrough v. Moss, 10 Barn. & Cress. 558. (e) Ankerstein v. Clarke, 4 Term Rep. 616. (f) Palmer v. Trevor, 1 Vern. 261. WIFE'S CHOSES IN ACTION. Her right not divested by marriage. Rule different from that as to her goods or specific chattels in the hands of third parties. THE right which the wife has to what the law quaintly terms her chattels personal outstanding, or choses in action, is not divested by marriage, but is liable to be divested by an act done in the marriage state; that is to say, the husband may appropriate his wife's chattels personal outstanding or choses in action by reducing them into possession. In this way, and in this way only, can he divest her right of property and defeat her claim by survivorship. The wife's chattels personal outstanding or choses in action are not to be confounded with her goods or specific chattels in the hands of third parties; for which the husband alone may, as we have seen (a), bring trover or detinue or replevin; for the property which she had in her goods or specific chattels before the marriage is by the marriage taken out of her and vested in her husband; whereas the (a) Supra, p. 19. IN ACTION. right which before the marriage she had to her choses in WIFE'S CHOSES action remains in her, notwithstanding the marriage, unless something be done in the marriage state, whereby that right is put an end to. The wife's chattels personal outstanding or choses in action may consist of debts due to her, arrears of rent (b), legacies, residuary personal estate, trust funds, stock, &c., to which are to be added bills of exchange and promissory notes payable to her, which, though unlike other choses in action in being legally assignable, are nevertheless choses in action of a peculiar nature (c). I have indeed seen it nowhere so determined, but I apprehend that a wife's general cash balance at her banker's dum sola must be included in the list of her choses in action (d). But although the property in the wife's choses in action. is not changed by the marriage, yet by the marriage the husband acquires a power of suing for and recovering them; and so making them his own, by converting them in fact into chattels personal in possession. And payment ought, during the marriage, to be made to the husband, not to the wife, except as his agent. Thus, where a legacy was bequeathed to a feme coverte, the executor, having paid it to her, was decreed by Lord Keeper North to pay it over again to the husband. The case, a remarkable one, was as follows: (b) In a suit to carry into execution the trusts of a will, it was ordered that the receiver should, out of the rents, pay to H., the devisee, a feme coverte, 400l. a year for her separate use, and on her own receipt, by way of maintenance. was held by Lord Chancellor Sugden that this allowance was not a chose in action; that it was a portion of the estate of H. in the lands; and that it It was not an interest therein distinct (c) Gaten v. Maddeley, 6 Mee. & (d) See supra, p. 19, where it is shewn that such general balance does not fall under the description of chattels personal in possession. of what the wife's choses in action may consist. WIFE'S CHOSES Sir Thomas Plumer's definition. What shall be a sufficient reduction into possession by the husband. A. B. devised 1007. to the plaintiff's wife, to be paid within six months after his death; and a bill being filed for this legacy, the defence which the executor made was, that he had paid the legacy to the plaintiff's wife, and had her receipt for it. He insisted further, that at the time of making this will the plaintiff and his wife were parted, which was then well known to the testator. But the Lord Keeper held it to be no good payment; and decreed the legacy to be paid to the plaintiff with interest, it being to be paid by the will at a certain time; viz., within six months after the testator's death. The law on the subject of the wife's chattels personal outstanding, or choses in action, underwent an elaborate expiscation by an industrious judge in the well-known case of Purdew v. Jackson (e). There Sir Thomas Plumer observes, that, although the nature of the husband's interest in, and power over, his wife's outstanding personal chattels is peculiar, yet the law defines it in the clearest manner. "Marriage," he says, "is only a qualified gift to the husband of the wife's choses in action upon condition that he reduce them into possession during its continuance. The wife's right is not divested by the marriage. The chose in action continues to belong to her; so that, if the husband happen to die before his wife, she, and not his personal representative, will be entitled to it. The husband, therefore, acquires no right to his wife's chose in action. Reduction into possession is a necessary and indispensable preliminary to his having any right of property in himself, or to his being able to convey any right of property to another. If he does not perform this condition in his lifetime, the right of his widow after his death continues unaltered, exactly as if she had never married." What shall be a sufficient reduction into possession by the husband to bar the wife's survivorship is to be col (e) 1 Russ. 1. |