reluctantly to the argument in support of the replication, and gave judgment for the defendant on the authority of the preceding cases, observing, that the rule had been laid down in Marshall v. Rutton; it was capable of having exceptions engrafted on it, as where the absence is tantamount to a civil death, &c.; but that a temporary absence of the husband not banished, or the like, had never been deemed sufficient.

III. Of Actions by Husband and Wife,

1. Where the Husband and Wife must join.

2. Where the Husband must sue alone.

3. Where the Husband and Wife may join, or the Husband may sue alone at his Election.

1. Where the Husband and Wife must join.-IN real actions for the recovery of lands of the wife, the husband and wife must join'.

So in an action of waste, for waste committed on the land of the wife'.

So in detinue of charters of the wife's inheritance".

In an action on a bond given to wife dum sola, husband and wife must join (13).

x 1 Bulst. 21.

y 7 H. 4. 15. a. 3 H. 6. 34.

z 1 Rol. Abr. 347. (R.) pl. 1.

a Per Ld. Hardwicke, C. J. in Bates v. Dandy, 2 Atk. 208.

(13) I am not aware of any solemn adjudication on this point, but the position is supported by the following authorities:

1. In Fenner v. Plaskett, Moor. 422.* it is said, that for a debt due to the wife dum sola, husband and wife ought to join; but it is observable, that in Croke's report of this case, (Cro. Eliz. 459.) which is more full and accurate than Moor's, this dictum does not appear.

2. In 1 Roll. Abr. 347. (R.) pl. 3. it is laid down, that husband and wife ought to join in actions due to the wife before coverture; but there is not any authority cited.

3. Lord Hardwicke, C. in Garforth v. Bradley, 2 Vez. 676, 677.

Cited by the court in Weller v. Baker, 2 Wils. 422.

Bond was given to wife during the coverture; the wife died; and then the husband sued upon the bond, as administrator to his wife; it was holden on demurrer, that the action was well brought".

If an action is brought in respect of a personal wrong to the wife, as for the battery of the wife, the husband and wife must join (14); and the declaration ought to conclude

b Day v. Padrone, B. R. Trin. 13 & 14 G. 2. 2 M. & S. 396. n.

takes a distinction between choses in action, vesting in the wife before and after marriage, and confines the power of the husband to sue alone to those which vest during the coverture.

4. In Buller's N. P. 179. it is laid down, that a debt due to a man, in right of his wife, cannot be set-off in an action against him on his own bond; cites Paynter v. Walker, C. B. E. 4 G. 3.

5. Lord Kenyon, C. J. delivering the judgment of the court in Milner v. Milnes, 3 T. R. 631. said, "It is extremely clear on the one hand, that the marriage gives to the husband all the personal estate which the wife has in possession, it is also clear on the other hand, that where a chose in action of the wife is to be reduced into possession, and it is necessary to bring an action for that purpose, it must be brought in the names of both husband and wife." It may be observed, on this last case, (which was an action of trespass brought by a feme covert, without her husband, for an injury done to a personal chattel of the wife dum sola; to which, coverture of the plaintiff at the time of exhibiting the bill was pleaded in bar) that it was not necessary for the determination of this case to decide, that the action must be brought by husband and wife. It was only necessary to decide, in the first place, that the wife could not sue alone, upon which point there could not be any doubt, as the wife cannot in any of these cases sue alone; and 2dly, whether advantage could be taken of the wife suing alone by a plea in abatement, or a plea in bar; the question whether the husband might sue alone, was wholly irrelevant. It may be proper to add, that the court were of opinion, that the plea ought to have been in abate→

ment.

6. This question was raised, but not decided, in the case of Carr v. Taylor, 10 Ves. Jun. 578. before Sir W. Grant, M. R. who said, that there had been some doubt upon it at law.

I cannot conclude this note without observing, that, until the doubts which hang over this question are removed by a solemn adjudication, the best way of proceeding for the recovery of a chose in action of wife dum sola, is to bring the actions in the names of husband and wife, on the propriety of which method a question cannot be raised.

(14) But in these cases the husband may sue alone for the in

T

"to their damage," and not "to the damage of the husband"; for the damages will survive to the wife, if the husband die before they are received.

Where the Husband must sue alone.-Where the wife cannot maintain an action for the same cause, if she survive her husband, the action must be brought by the husband alone; as in the case of an action of indebitatus assumpsit for the labour, &c. of the wife, during the coverture; for, in contemplation of law, the wife is considered as the servant of the husband, and he is entitled to her earn

c Horton v. Byles, 1 Sidf. 387.

d Judgment arrested for this conclusion, in Newton & Ux. v. Hatter, Lord Raym. 1208.

e Buckley v. Collier, Salk. 114. and Carth. 251.

jury sustained by himself from the loss of the society, comfort, and assistance of his wife, in consequence of the battery; Hyde v. Scissor, Cro. Jac. 538. And if the husband adopts this method, he may in the same declaration complain of a battery to himself. Guy v. Livesey, Cro. Jac. 501. Although the wife ought not to be joined in an action with the husband for the battery of the husband, (Newton v. Hatter, Lord Raym. 1208.) yet, where husband and wife join in an action for a personal wrong to the wife, the husband may declare also for an injury arising solely to himself by way of aggravation of damages; as, where in trespass by husband and wife, for false imprisonment of the wife, per quod negotia domestica of the husband remanserunt infecta ad grave damnum ipsorum. On motion, in arrest of judgment, the declaration was holden good; for although the husband and wife could not have declared jointly for the special damage resulting to the husband alone, if such damage had been the gist of the action, yet in this case, it having been laid for aggravation of damages only, the action was well brought; for trespass will lie for a matter jointly with other matters, for which singly an action could not have been maintained; as trespass will lie for entering the plaintiff's house, and beating his servant, without adding, "per quod servitium amisit;" for then it is considered as a continuation of the first trespass. Russell v. Corne, Ld. Raym. 1031. Salk. 119. 6 Mod. 127. S. C. So where in an action of assault and battery by husband and wife, it was stated in the declaration, that the defendant assaulted the wife, and driving a coach over, bruised her; and "by reason thereof," the husband laid out divers sums of money in the cure, &c. After verdict for plaintiff, with entire damages, it was holden, on motion in arrest of judgment, that the gist of the action was the beating of the wife, and the expenses incurred by the husband were only in aggravation of damages: and Powell, J. observed, that if these had been omitted in the declaration, yet the surgeon's bill might have been given in

ings, and such earnings shall not survive to the wife, but go to the personal representative of the husband (15).

So in an action on the case for words, not actionable in themselves, spoken of the wife, whereby the husband sustains special damage, the husband must sue alone. So in actions for injuries committed during coverture to personal chattels, which by law are vested in the husband; as in trespass for cutting down and carrying away corn, although it grew upon the wife's land: for it grows by the industry of man, and consequently the property thereof is in the husband alone (16).

In all cases where the wife shall not have the thingh, when it is recovered, either solely to herself, or jointly with her husband, but the husband only shall have it, there the husband shall sue alone.

An action on the case was brought by A. and B. his wife'

f Coleman v. Harcourt, 1 Lev. 140.

Arundel v. Short, Cro. Eliz. 133.

h1 Rol. Abr. 347. (Q) pl. 5.

i Bidgood v. Way and Wife, on error,

in Exchequer Chamber, 2 Bl. R. 1236. cited in Morris v. Norfolk, 1 Taunt. 214.

evidence, in aggravation of damages. Todd v. Redford, 11 Mod. 264. See also Dix v. Brookes, Str. 61.

(15) It may here be observed, that, although the law will not imply a promise to the wife, yet where the wife is the meritorious cause of the action, that is, where the defendant has derived profit or advantage from her labour or skill, and an express promise of remuneration is made by the defendant to the wife, if, in such case, an action is brought by the husband and wife jointly, and it is expressly stated in the declaration, that the promise was made to the wife, an objection cannot be raised to such declaration, merely on the ground of the wife having been joined; because contracts made by the wife, with the assent of the husband, are valid, and the bringing the action in their joint names is a declaration of such assent; and in this case the action would survive to the wife. Brashford v. Buckingham, in error, Cro. Jac. 77. 205. Care, however, must be taken, that the declaration does not embrace any other cause of action accruing to the husband alone; for if it does, it will be bad. Holmes and wife v. Wood, cited by the court in Weller v. Baker, 2 Wils. 424.

(16) Husband and wife being seized of land in right of wife may join in trespass, quare cl. fregit, et herbam ibidem crescentem consumpsit et asportavit, because the grass is the natural produce of the earth, and shall continually go with the land. Willy v. Hanksworth, B. R. M. 3 G. 2. MSS. and cited by the court in Weller v. Baker, 2 Wils. 424.

for the use and occupation of a messuage and lands, and for money had and received to the use of the husband and wife, stating the promises to husband and wife; after judgment by default, writ of inquiry executed, and final judgment in B. R. a writ of error was brought in the Exchequer Chamber, assigning for error, that judgment was given for the husband and wife to recover their damages, whereas it appeared on the record, that B. was the wife of A. and could not sustain any damage by reason of any thing contained in the declaration; the court were of opinion, that the judgment was erroneous, because a contract could not be made with a married woman; that a promise, either express or implied, did not give any interest to her; the whole resulted to the husband, and the action ought to have been brought in his name (17). The counsel for the defendants in error having urged, that, if an impossible assumpsit was stated in the declaration, it might quoad her be surplusage, as much as if she had been a stranger; the court said, the insertion of the wife could not be surplusage; for it created an interest in her, and entitled her to damages by survivorship.

Where a debtor to the wife as executrix promises to pay the husband in consideration of his giving time of payment, the husband ought to sue alone, because the wife is not a party to the agreement between her husband and the defendant; but in this case the life of the wife must be averred'. N. The recovery of the husband will amount to a devastavit pro tanto. Per Holt, C. J. Carth. 463.

3. Where the Husband and Wife may join, or the Husband may sue alone at his Election.-In personal actions for the recovery of damages only, (other than actions in respect of personal wrongs to the wife,) where the action will survive to the wife (18), the husband and wife may join"; or

k Yard v. Eland, Lord Raym. 369. 1 Lea v. Minne, Yelv. 84. Cro. Jac. Salk. 117. Carth. 462. S. C.

110.

m Per Cur. 2 Mod. 270.

(17) Lord Ellenborongh C. J. speaking of this report in Ord v. Fenwick, 3 East's R. 106. said that the declaration was not stated sufficiently explicit; that it did not appear whose lands had been used and occupied, whether the husband's or wife's.

(18) In Frosdike v. Sterling, 1 Freem. 236. North, C. J. said, "that he always took it for an unquestionable rule, that, wheresover, in case the husband should die, the action would survive to the wife, there the wife might join, but on the other side, the husband