Art. 2. trix took possession of it. Before partition, she married A I. CH. 19. and died: A come into possession as administrator in her right held, he had not such possession of her chose in action as to vest in him one third coming to her; but he is entitled to one third of her third under the statute of 1791. That 2 Nott & Mc statute took from him the right he had under 22 and 23, and Cord, 147. 29 Ch. 2; hence, when he administered he became liable to make distribution. 21. con. Note and mortgage to husband and wife, survives to her, if she survives him, and not to his executor. 16 Mass. R. 486-488, Draper, adm'r. v. Jackson and wife. 6 Remark. The husband and wife sold her land to the mortgagor and he gave to them said mortgage and note. Judge Jackson, who gave the opinion of the court, in his question, did not notice this. The question, he said, 'is, whether a note and mortgage made to a man and his wife, shall, in case she survive him, go to his administrator or to his widow,' (except as to creditors). Judge J. considered many authorities, mostly ancient ones; as that Lib. 2. c. 5. s. 28; Com. D. Baron and Feme; 48 E. 3. 18; 1 Rol. Abr. 342; 14 E. 2; 47 E. 3. 12; 19 H. 6. 37; 15 E. 4, 9; 1 Danv. Abr. 715; 4 H. 6. 6; Noy. 149; 2 Vern. 683; 2 P. W. 496. Judge J. observes on a review of these cases, it does not appear that the point in question has ever been expressly adjudged in any court of common law :' rests on the cases in equity mainly, all in her favor, and the justice of her case, and in his reasoning relies much on the fact, the debt arose mainly out of her inheritance, in which her husband had only a small interest, that is, his right to the profits for his life at most [no objection on account of creditors]. This case is clearly law. See in this work ch. 19. a. 2. s. 9, 12; especially art. 21. s. 5, 6, 7, 8, &c.; ch. 175. a. 2. s. 7 to 22; ch. 106. a. 4. s. 1 to 5. Many authorities to the point of this case; many cases of their joining in actions, and numerous modern authorities; but in all the right of action originating in her, or in her property, or earnings, seems to be material. Hood v. Arch 3. The plt's. wife was entitled, with other, under the act ART. 4. of distribution of intestate estates, to a share of real estate; Con. and a writ of partition, under the act of assembly, issued for 2 Nott & Me selling the property and paying the purchase money to the Cord, 149-153, sheriff. The wife then died. Held, this was not such a er & al. reduction of her choses in action into possession by her husband as to complete his right to the whole, but as his wife died without issue, he was entitled to one half under the act. She died after the money was paid to the sheriff and her husband applied for her part of it. І. Сн. 19. $ 4. His power is limited. He cannot rightfully elect her property be real or personal, at his pleasure. 2. When her rights appear clearly in the record, the court will, ex officio, protect her against any injurious effects arising from his act or 4 Rand. 397- admissions, whether the point be made in the pleadings, or not. 3. A bill by both is his only, and she is joined for conformity to be bound only so far as in justice she ought to be bound. See 2 Ves. 663, Evans v. Cogan; 2 P. Wins. 451; 2 Vern. 249. 405. ART. 5. Con. 7. If a wife die leaving a husband, and he dies without administering on her estate, his administrator may sue her 3 Rand. 434-guardian for her estate committed to him. 2. A decree may be rendered against one of two administrators, if he only has 447. 15 Serg. & R. 84, &c. ART. 8. 3 Barn. & v. Benedict. assets. A husband cannot convey land by deed directly to his wife. 1 Greenl. 394-398, Martin v. Martin. § 8. Held, that a wife cannot be a citizen of a state different from that in which her husband has his domicil, so as to sue in the courts of the United States, and generally she cannot sue him in Pennsylvania, hence she has six years after hist death to sue his executors, on a valid contract between them, as one made in Louisiania, &c. 7. But things not necessaries, &c. Assumpsit for goods sold and delivered. Plea, non assumpsit. At the trial proved that the plt., a jeweller, in the course of two months delivered 639, Montague articles of jewelry to the deft's. wife amounting to £83; that he was a certificated special pleader, and lived in a ready furnished house, rent £200 a year; that he kept no man servant; that her marriage portion was less than £4000; that when married she had jewelry suitable to her condition, and that she had never worn in her husband's presence any articles furnished by the plt. ; that he, when he went to the deft's. house for payment, always inquired for the wife and not for the deft. Held, 1. That the said articles were not necessaries: 2. As there was no evidence to go to the jury of any assent of the husband to the contract made by his wife, the action could 3 Pick. 289- not be supported. She had paid £34 in part. Where a 291, Hunter v. Boucher. ART. 10. husband turns away his wife for adultery, he is not liable on her contracts made with persons having notice he has discarded her. See s. 13. this article. 1. A man by will gives a fifth part of his estate to his executors, for the benefit of a married daughter, (who lived separate from her husband), at the discretion of his executors: 3 Rand. 373-he also desires them to sue said husband for £200, which, West's Execu- when recovered, he desired them to dispose thereof to his said daughter, to be disposed of at her discretion. Held, she had a separate estate in the property so given: 2. She had 393. West v. tor. power to bequeath the personal property, but not the real: I. CH. 19. 3. Whether her paper so disposing was a will or anything Art. 10. else, it ought to be proved. See art. 2. s. 13, 14; art. 10. s. 3; art. 22. s. 15; ch. 114. a. 22. s. 10. Vol. 4. Con. Cord, 242 § 1. con. A feme covert acting as a sole trader, may make 2 Nott & Mc a bond, but only one relating to her business as a sole trader. 247. The husband died and left his wife some estate and she had i Mc Cord, Held, only her own was liable to pay her 395. The bond to bind her must state she is South Carolina in this re some of her own. funeral expenses. a sole trader in the proceedings. spect seems to have adopted the custom of London. Held, that a married woman, who had long resided in ART. 14. Massachusetts, and her husband ever having been and still Con. being an inhabitant of New Hampshire, and having by cruel Abbott v. Bailey, 6 Pick. 89. treatment driven her from his house, might sue as a feme sole. See Gregory v. Paul, 3 Camb. 123. 4. A feme covert may be imprisoned on a ca. sa. with her husband, and so without him; otherwise as to mesne pro3 Cowen, 239, Mc Kintry v. Davis and wife. cess. 425, 456, 457, 5. Cases in equity in England further. On their con- ART. 15. tract to sell her estate, chancery will not decree him to pro- Con. cure her to join. She cannot by consent, though examined 2 Jacob & W. in court, part with her interest in a fund settled on her mar- 458. riage for her separate use, during her life, with a clause against anticipation, with remainder to the survivor of them: 3. Money bequeathed to be invested in an annuity for her life and her separate use paid to him on her consent taken in court: 4. A fund in which she has a reversionary interest was transferred to a purchaser by her consent taken in court. 6. con. Where the wife returns her bank shares by her 17 Mass. R. husband's consent, after his death, as when she owned them 57–60. before marriage, the husband received the dividends till the charter expired; then the stockholders had a right to subscribe a proportion of their stock in a new bank; this he subscribed in her name and refused to receive the surplus money, saying it was her's, not his. After his death his executors received said surplus, and the dividends; also a sum payable on a reduction of the capital of the bank. Held, the widow was entitled to recover of the executors all the sums so received by them, with interest. The court held there was sufficient evidence the husband ever intended his wife should have the whole to her use. The husband died amply solvent, so not creditors were concerned. The will of a feme covert bequeathing her choses in action to her husband, is void, though made with his consent. 2 M'Cord, 453. A feme covert, by her next friend may, in her own name, 1 Const. Rep. maintain an action against the sheriff for an escape of her 453. 1. CH. 19. husband committed by attachment for not performing a decree Art. 22. for alimony. See Wheeler v. Wheeler, a. 12, s. 1. Con. 175, Ela v. Card & al. 8. con. Was an action of covenant against the deft's., and also two wives, of a lot of land to the plt., and they cove2 N. H. Rep. nanted they were seised in fee when they were not; deed proved and appeared not to have been signed by the husbands of the two wives. Held, 1. The deeds of the wives were not binding, as their husbands did not join in them. 2. The wife's deed alone is not valid, except her release of dower. 3. It was correct to declare against the deft's. alone, omitting pp. 402-405. the wives, for they conveyed no interest. How for baron and feme must join in a deed to pass their respective interests in her land. The wife wrote I Sally Smith, for $100 conveyed the land to Asa Davis,' with the usual words and covenants as if she were sole; her husband added I William Smith, &c. for, and in consideration of, one dollar to me paid by Asa Davis, &c. for myself, my heirs, &c. quit unto him, the said Asa Davis, all my right and title to the above premises, against the lawful claims of any persons, by or under me. Signed, SALLY SMITH, and Seal. WILLIAM SMITH,' and Seal. p. 525, &c. Elliot v. Sleeper. New York. Davis was a bona fide purchaser for an adequate consideration; deed valid, though the husband and wife used different words of conveyance. If he signs, seals, and delivers a deed of conveyance with his wife, though he is not named in the body of the deed as a grantor, all the interests of both in the premises passed. Many cases, English and American, cited. A deed executed by her is not binding on her, unless duly acknowledged, and an after acknowledgment by her, does not relate back to the time of the execution of the deed of her Corson v. land. By a conveyance of land to them, they both become Cairns, cited 'seised of an entirety,' neither of them can dispose of any sometimes part without the assent of the other, and on the death of eithJackson v. Cairns, 20 er, the whole goes to the survivor. The statute sess. 9, ch. Johns. R. 301. 12, s. 6, same case baron and feme seised of her lands, she died in 1795. He continued possession, claiming them as his own, built on them, &c., and in 1800 mortgaged them as his own. Held, he, after her death, was a tenant at sufferance, and his continuance in possession was not adverse to her heirs the true owners. Her estate in equity, she cannot bind 17 Johns. R. herself by her covenant, or contract, hence a deed executed by her and her husband with covenant of warranty, does not estop her in ejectment sued against her after his death; but she may show her interest in the land. Vanderhey- No action lies on the contract of baron and feme, as she id. 548. Jackson v. den, 17 Johus. cannot contract. Quere, as to her being estopped in such case, ch. 115, a. 4, s. 32, Colcord v. Swann, and wife. R. 167.-16 do. 281. Con. 16. The court will not grant an injunction to restrain the I. CH. 19. husband from preventing his wife's solicitor and friends from Art. 22. having access to her, being very sick in his house, to enable her to execute a deed of appointment under a power in her marriage settlement, it not being proved she had given instruc-1 Jacob & W. tions for such a deed. If her husband voluntarily assign a 94. fund in court belonging to her, this will not bar her right by survivorship. CHAPTER XX. BILLS AND NOTES, &c. 3. con. 1 Nott and M'Cord, 102, like authority. No ART. 3. precise form of words necessary to make a bill or note. Only notes payable to order or bearer for money, are negotiable; not those for the delivery of property by 324 of Ann, or Act of Assembly of 1798; so not one for the payment of corn; 1 Nott & M'Cord, 255-256: nor one for paying paper medium. 1 M'Cord, 115. Judah v. Harris, 19 Johns, R. 144. A promissory note payable in bank notes current in the city of New York,' is a negotiable note. Con. § 9. con. When done, note was to be negotiable. Assump- Havens v. sit on two notes, count on each note against the maker in Huntington, 1 favor of the plt. as endorsee of Jenkins and Havens, the pay- 397. Cowen, 387ees in common form. They endorsed for the maker's accommodation, (deft.) on its being dishonored paid it, and took it up. Jenkins and Havens then delivered it to Havens alone with the original endorsement on it. Held, 1. that Havens alone might sue the maker (the deft.) as endorsee. 2. That the negotiable quality of the note was not destroyed by advancing the money and taking it up, unless done with intent to pay it. 3. However, where in such a case its negotiation may work a wrong to any persons, parties, such a payment will be deemed to extinguish the note and prevent its negotiability for the purposes of justice. See 2 Greenl. 207, s. 22. Ch. 39, a. 5, s. 2. Ch. 20, a. 20, s. 30. 4. A note overdue and dishonored, may still be negotiated, but subject to all the equities between the original parties. See the case of Beck v. Robly, a. 9, s. 7. Callow v. Lawrence, 3 M. & S. 95. Terra v. Birkley, 1 Wils. 465; 17 Mass. R. 615. So subject to equities. See a. 18, 1 N. H. Rep. 250. be negotiable once paid. And see s. 22. Note ceases to What is a negotiable note. An instrument in writing thus, 2 Cowen, 536. 'due to S. R. or bearer, $200.26 for value received,' is a good promissory note within the statute of Ann. |