under these circumstances, the stock and the dividends accruing therefrom were the property of the husband, and that he should have sued, or at all events should have been joined in the action. 1853. DALTON v. THE MIDLAND A verdict having been found for the plaintiff, subject RAILWAY CO. to leave reserved to the defendants to move to enter a verdict for the defendants, Macauley, in the last term obtained a rule nisi accordingly. [Maule, J., suggested that the probable answer to the rule would be, that the objection was only to be raised by a plea in abatement.] This is a cause of ac Wordsworth and Lush, on a former day in this term, shewed cause. The question is, whether the coverture of the plaintiff could be taken advantage of in this case without a plea in abatement. By the rules of pleading of Hilary Term, 4 W. 4, coverture is required to be specially pleaded; Moss v. Smith, 1 M. & G. 228, 1 Scott, N. R. 25; and it is properly the subject of a plea in abatement, and not in bar; Bendix v. Wakeman, 12 M. & W. 97; Guyard v. Sutton, antè, Vol. III, p. 153. [Williams, J. The latest case upon the subject, is, Morgan v. Cubitt, 3 Exch. 612.] tion which clearly would survive to the wife; and not only might she, but she must have been joined in an action to recover these dividends, she being the registered owner of the stock. [Jervis, C. J. Upon a promissory note given to a feme during coverture, both husband and wife may sue.] That was decided in Philliskirk v. Pluckwell, 2 M. & Selw. 393. So, in Gaters v. Madeley, 6 M. & W. 423, it was held that the interest in a promissory note given to a wife during coverture, the consideration for which was money advanced by her during the coverture, survives to the wife after the 1853. death of her husband, unless he reduces it into possession in his lifetime. Scarpellini v. Atcheson, 7 Q. B. THE MIDLAND 864, is an authority to the same effect. DALTON v. COUNTIES RAILWAY Co. Having registered the transfer to the plaintiff, the company are estopped from saying that she is not the proprietor of the stock. [Williams, J. If the husband alone could sue, the question as to a plea in abatement does not arise.] Bovill, in support of the rule. If the wife could properly be joined, then no doubt the objection must be raised by a plea in abatement; otherwise, it is a plea in bar. The question is, whether there was any contract entered into with the plaintiff by the company. The statement in the declaration necessarily involves all the allegations that are essential to make out that the plaintiff Ann Dalton was proprietor of the stock in respect of which the dividend is claimed. Was Ann Dalton ever the proprietor of that stock? It appears, that, being possessed of a sum of money accumulated by her before her marriage, she invested that money, with other moneys belonging to her husband, in the purchase of this stock. The property in that stock never vested in her at all the transfer could only operate in law for the benefit of her husband. [Jervis, C. J. What difference is there between this contract and the contract on a promissory note made to a married woman?] There is no contract at all here. The plaintiff never was the proprietor of the stock. Suppose a woman, having money in her possession belonging to her husband, purchases government stock with it, it is clear that the stock so purchased would, upon the husband's death, pass to his executors, and would not survive to the wife. [Jervis, C. J. In Ness v. Angas, 3 Exch. 805, a married woman, with the consent of her husband, the defendant, purchased, with the proceeds of her separate : : estate, shares in a joint-stock banking company, and was registered as owner: her husband received some dividends, and signed receipts as the agent of his wife he also attended a meeting of the company, at which none but shareholders were entitled to be present: the company's deed of settlement provided that the husband of any female shareholder should not be a member in respect of such shares, but should be at liberty to sell them, or, at his option, to become a member, on complying with certain requisitions, which the defendant in this case did not do and it was held, that the defendant was not a member, for the purpose of execution by scire facias on a judgment against the public officer, under the 7 G. 4, c. 46, s. 13. (a)] That case only decides that the husband had done nothing to make himself chargeable as a member of the co-partnership. All the cases cited on the other side, are cases of express contract, where the husband had the option of joining his wife or not. [Jervis, C. J. If the wife, with the money of her husband,-money earned by herself either before or during coverture,-obtains a promissory-note, she may be joined with her husband in an action upon the note.] No doubt. [Jervis, C. J. Why, then, might she not be joined in this case?] In the one case, there is a contract with the wife; in the other, none. [Jervis, C. J. The 28th section of the 8 & 9 Vict. c. 16 (b) makes the production of the register evidence of proprietorship.] The insertion of the name in the book is nothing more than primâ facie evidence. [Jervis, C. J. Suppose this had been an action for breach of a contract for transferring the stock, would the wife be properly (a) And see Ness v. Armstrong, 4 Exch. 21. (b) Which enacts "that the production of the register of shareholders shall be primâ facie evidence of such defend- 1853. DALTON v. THE MIDLAND 1853. DALTON v. THE MIDLAND joined?] That presents a totally different question. [Wordsworth referred to the 61st, 62nd, and 63rd sections of the statute.] Cur. adv. vult. JERVIS, C. J., now delivered the judgment of the court. The question in this case is, whether, upon the facts and the record as it now stands, the plaintiff is entitled to sue for the recovery of dividends due upon the stock of the company standing in her name. The plaintiff, a married woman, having money which she had earned in service before and after marriage, purchased with such money 400l. stock of the defendants' company, and, the transfer to her being tendered to the company, she was registered in their books as a shareholder of the company, and received one payment of dividends upon this stock. Her stock having been transferred in the books of the company to another holder, by means of a forged transfer, she brought an action of debt on simple contract for the dividends due and payable upon the stock of which she was the rightful owner; and, the defendants having pleaded never indebted, the question is, whether, as a married woman, she can recover the dividends. We are of opinion that she can. It is settled law, that a married woman, though incapable of making a contract, is capable of having a chose in action conferred upon her, which will survive to her on the death of her husband, unless he shall have interfered by doing some act to reduce it into possession. On this principle, we think that the plaintiff in the present case, though a married woman, having become a registered shareholder of the company, acquired, as a chose in action, a right to the dividends, which, unless controlled by her husband, would survive to her, and might have been unobjectionably put in suit by her and her husband jointly. And, this being so, it is plain that the non-joinder of the husband as a plaintiff is only matter for a plea in abatement. This rule must consequently be discharged. 1853. DALTON v. THE MIDLAND COUNTIES RAILWAY CO. Rule discharged. MAGNAY and Others v. EDWARDS and Others, Assignees THE April 27. Mortgagor and mortgagee of moiety of certain premises, jointly with the an undivided owner of the other moiety, whole for twen ty-one years to one Green, the demised the latter covenant ing with the three lessors jointly and severally to pay the rent re served, but not saying to whom. Green entered upon the premises, and afterwards became bank rupt. His assignees having accepted the lease,-Held, deferring to the authority of Wakefield v. Brown, 9 Q. B. 209, that the defendants were liable in covenant at the suit of the three lessors for rent accruing while they were possessed of the premises. |