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business generally in his wife's name, and authorizes her to give notes for him in the course of such business, this will render him liable on notes so given, and signed with the wife's name. (m) And if a woman holds a note at the time of her marriage, and afterward indorses it in her maiden name, this will pass the interest of the husband, if the circumstances of the case be such as to warrant the presumption that the indorsement was so made with his authority and assent.(n)
In order to hold the husband on a bill or note executed by his wife as his agent, the wife's authority must be very clearly proved. (o) It will not be sufficient, it seems, to show that the wife carried on trade or business, and purchased goods on credit, with the knowledge and consent of her husband. For he may be willing to be answerable for the price of goods purchased on credit by his wife, for the purpose of carrying on the business in which she is engaged, so long as it is done in such a manner that he, if she be defrauded or imposed on in the purchase of the goods, shall not be precluded from showing the fact, as a defence against the payment for them. But if she be allowed to purchase goods on credit, and give negotiable bills or notes for the payment of them, he loses this protection. For the moment that such paper comes into the hands of a bona fide holder for value, the husband becomes absolutely bound for the payment of it at maturity, however fraudulent the transaction may be for and on account of which the paper was given. (p) And though a tradesman cannot write, and his wife write for him whatever is requisite in his trade, he will not be liable on a bill or note signed by her in his name, unless there is some evidence that it was signed by her in respect of his trade.(7) If a husband authorize his
good. So here, the bill having been accepted, and in this form, by the authority of the defendant, he is clearly liable upon it."
See Krebs v. O'Grady, 23 Ala. 726.
(m) Abbott v. Mackinley, 2 Miles, 220. (n) Miller v. Delamater, 12 Wend. 433. (0) Goldstone v. Tovey, 6 Bing. N. C. 98. (p) Reakert v. Sanford, 5 Watts & S. 164. (7) Smith v. Pedley, Bayley on Bills, 2d Am. ed., p. 42. In an action by the indorsee of a note against defendant as maker, it appeared that defendant could not write, that his wife wrote for him whatever was requisite, and that this note was signed by the wife in his name; but there was no evidence that the note was given on account of any concerns of the husband; it was, however, left to the jury to presume it was given for the husband's concerns; and the jury found for the plaintiff. But on a rule nisi for a new trial, the court thought there was nothing to warrant such presumption by the jury, and a new trial was granted.
wife to draw, accept, and indorse bills in his name, she cannot delegate this authority to another. Delegatus non potest delegare. But she may direct another person to write her husband's name for her, in her presence.(r)
Although a note given by a wife to her husband is of itself altogether void, yet if the husband indorse it over, it is valid as between this or a subsequent indorsee and the husband. (s)
A woman may, under some circumstances, be a sole trader. As if her husband is an alien, and has not been in this country.(t) Or if imprisonment for crime or desertion have restored to her, quasi, the rights of a single woman. (u) The rule on this point
(r) Lord v. Hall, 8 C. B. 627. In this case, upon an issue as to the indorsement of a promissory note by J. S., it was proved that the wife of J. S. had the general management of his business; that she was in the habit of drawing, accepting, and indorsing bills and notes in his name; and that the name of J. S. was indorsed upon the note in question by his daughter, by the direction and in the presence of her mother, by whom the note was afterwards handed to the plaintiff. Held, that it was a question of fact for the jury, whether the indorsement so made was within the scope of the wife's authority; and that the evidence warranted them in concluding that it was.
(s) Haly v. Lane, 2 Atk 181. See Knox v. Reeside, 1 Miles, 294.
(t) Kay v. Duchesse de Pienne, 3 Camp. 123. See 1 Parsons on Cont. 306, n. (e). In M'Arthur v. Bloom, 2 Duer, 151, the defendant, being sued as the maker of two promissory notes, pleaded coverture. It appeared that she was a native of Prussia, but had lived in New York for more than seven years; and during that time had carried on business in her maiden name, as a feme sole. It also appeared that her husband, to whom she had been married more than twenty years, had continued to live in Prussia, and by the law of that country could not leave the kingdom without the express permission of the government. Held, that the defendant, under these circumstances, might justly be considered and treated as a feme sole, and that the plaintiffs were therefore entitled to recover. Campbell, J. said: "It would be difficult to distinguish this case from that of Gregory v. Paul, 15 Mass. 31, except in that case it appeared that the husband had deserted the wife in England, while in this case the reasons of the separation, and of the wife assuming her maiden name, do not appear. There is in the case before us, however, another fact, which may be considered of importance. It is, that, by the laws of Prussia, a passport or permit is required to enable a subject of that country to emigrate. It may be that such permit would not be given to the husband, and thus the case would be brought within the rule of many of the English cases, as well as the principle upon which the rule was founded. Thus, when the husband was an alien enemy residing abroad, the wife was always treated as a feme sole, because it might well be that he would not be permitted to come into the country where she resided. So, when the husband was transported even though for a limited period, the wife was also treated as a feme sole, as the husband might not be permitted to return, or might be disposed never to return, even after his term of banishment had expired. In such cases, it is said that it is greatly for the interest of the wife that she should be treated and considered as a feme sole, or otherwise she could neither sue nor be sued; could neither enforce her rights, nor obtain the credit which might be necessary, in order to enable her to make a support for herself."
(u) See 1 Parsons on Cont. 306. n. fei.
may not be well settled in this country, where we have no tom of London"; but the cases in our notes will show in what way our courts have dealt with this question. (v) In some of the States, by statute, married women may trade as, and have many or all the rights of, femes sole. (w)
If a bill or note be given by a single woman who afterwards marries, the husband is liable upon it, and they should be sued jointly.(x) But if she dies before a judgment is obtained for the debt, the husband is no longer liable as such; but her representatives are liable.(y)
Bills and notes possessed by a single woman before and at her marriage are her choses in action, which the husband may reduce to his possession and so make his own, or may not. If he does not, and dies, her right and interest to or in them are the same as before marriage.(z) If she dies, they are now assets in the hands of her administrator; the husband has a right to be her administrator; and having in that capacity collected the notes or bills, he will retain the proceeds for his own benefit and as his own property. (a) And if he dies,
(v) In Pennsylvania and South Carolina a wife may become a sole trader, and become liable as such, in imitation of the custom of London. See 1 Parsons on Cont. 306, uote d; Wilthaus v. Ludecus, 5 Rich. 326. In Gregory v. Pierce, 4 Met. 478, the court declared, that if there be a complete and absolute desertion of the wife by the husband by his continued absence from the Commonwealth, and a voluntary separation from, and abandonment of, his wife, with an intent to renounce de facto the marital relation, and leave her to act as a feme sole, this will enable her to sue, and render her liable to be sued, as a feme sole. But in Chouteau v. Merry, 3 Misso. 254, where the husband abandoned his wife in the State of Missouri, in 1821, and voluntarily left that State and established himself in Arkansas Territory, where he continued to reside, it was held, that the wife, who continued to reside in the State of Missouri, was not liable on a note given by her there in 1831. The court said: "Coverture operates a legal disability to contract, and all contracts of a feme covert are absolutely void. The facts in this case do not bring it within any of the exceptions. The cases cited from the English books are where the husbands abjured the realm, or were foreigners residing abroad. The principles settled in those cases do not apply. If by a removal from one State to another, or a separate residence in different States, the indissoluble con nection by which the wife is placed under the power and protection of her husband could be cancelled, and the parties thereby relieved of their respective liabilities and disabilities, there would be little need of troubling the legislature or the courts on the subject of divorces." See Bean v. Morgan, 4 McCord, 148.
(w) See the statutes on this subject collected in 1 Parsons on Cont. 306, note. (x) Mitchinson v. Hewson, 7 T. R. 348.
the right of taking out letters of administration upon her unsettled estate goes to his next of kin, and not to hers. (b) If she leaves debts contracted when single, for which the husband is no longer liable as such, he is still liable as her administrator to the extent of her bills or notes or other choses in action which he has reduced to possession after her death; but not for those which he reduced as husband, while she lived. (c)
It has been held, that if he gets actual possession of her unreduced choses in action after her death, without taking out letters of administration, they are then his property. There are, however, some legal, although perhaps only technical, objections to this doctrine.(d)
What is a reduction to posssession of the wife's bills and notes is not quite so certain. We should say, any act which distinctly manifested a purpose of making them his own; as collecting a note, or demanding payment, or indorsing, or assigning it.(e) But we should also say, that either of these acts might be so done, and accompanied with such declarations or other acts, as to leave the property still the wife's. And even if the husband collected the money, but collected it for her, and immediately invested it, in good faith, in other choses in action in her name, we should say on principle that these new choses in action would stand in the same right, and be subject to the same rules of law, as did the bills or notes.(ƒ)
Bankruptcy is not a reduction to possession; nor, it seems, can a creditor of the husband obtain possession of the bills or notes of the wife without the co-operation of the husband.(g) The cases on the subject of a transfer by the husband are in some conflict. Perhaps the weight of authority may be, that if a husband transfers unreduced choses in action, or gives
(b) 1 Parsons on Cont. 285, note u.
(c) 1 Parsons on Cont. 285, note s
(d) Whitaker v. Whitaker, 6 Johns. 112;
Parsons on Cont. 285, note t.
(e) Scarpellini v. Atcheson, 7 Q. B. 864; Tuttle v. Fowler, 22 Conn. 58. (f) See, to that effect, Stanwood v. Stanwood, 17 Mass. 57; Phelps v. Phelps, 20 Pick. 556; Adams v. Brackett, 5 Met. 280; Fisk v. Cushman, 6 Cush. 20; Wilder v. Aldrich, 2 R. I. 518; Marston v. Carter, 12 N. H. 159; Poor v. Hazleton, 15 id. 5(4 (g) Yates v. Sherrington, 11 M & W. 42, 12 id 855. And see Marston v. Car er, 12 N. H. 159; Poor v. Hazleton, 15 id. 564. But see Shuttlesworth v. Noyes, 8 Mass. 229; Hayward v Hayward, 20 Pick. 517; Smith v. Chandler, 3 Gray, 392.
authority to a third person to collect them for that person's own benefit, and such transferee or agent proceeds to collect the same, and completes this while the husband lives, he has the property. But if the husband dies before the collection and reduction are consummated, the wife's rights revive. On principle, we should say that the actual transfer of a chose in action is an actual or a constructive reduction to possession, and is complete as soon as made, whether the husband lives or dies. But that the right of reducing is strictly marital, and cannot be transferred by a husband; that such agent, therefore, acts only for him, and has no interest in the property, unless the husband actually transfers the property in the chose in action to him, or confirms him in the possession of the proceeds, and that such agency is therefore terminated by the death of the husband.(h) The receipt of interest is not necessarily a reduction to possession; nor is, it seems, a re ceipt of a part of the principal. (i)
If a bill or note is given to a married woman, the property in it is her husband's, so that he alone can indorse it.(j) But if he does not reduce it to possession, it belongs, at his death, to his wife, and not to his executors; and she, and not they, must sue it, or may indorse it. (k) It has been thought that,
(h) 1 Parsons on Cont., 4th ed., 285, note va.
(i) Hart Stephens, 6 Q. B. 937; Nash v. Nash, 2 Mad. 133. In this last case the father of a married woman drew a check in her favor upon his bankers for £ 10,000. The bankers gave her a promissory note for the £10,000. Afterwards, £ 1,000, part of the principal money due on the note, was paid to her husband; and he also received the interest due on the note up to the time of his death. Held, that, upon the husband's death, the wife was entitled to the note as a chose in action which had survived to her.
(j) Mason v. Morgan, 2 A. & E. 30. And see supra, p. 79, note d.
(k) This was settled in Massachusetts, upon great consideration, in Draper v. Jackson, 16 Mass 480. And see Hayward v. Hayward, 20 Pick. 517; Phelps v. Phelps, 20 Pick. 556. The same point was decided in England in the case of Gaters v. Madeley, 6 M. & W. 423. And Parke, B., in delivering the opinion of the court, said: "When a chose in action, such as a bond or note, is given to a feme covert, the husband may elect to let his wife have the benefit of it, or if he thinks proper he may take it himself; and if, in this case, the husband had in his lifetime brought an action upon this note in his own name, that would have amounted to an election to take it himself, and to an expression of dissent on his part to his wife's having any interest in it. On the other hand, he may if he pleases leave it as it is, and in that case the remedy on it survives to the wife, or he may, according to the decision in Philliskirk v. Pluckwell, 2 Maule & S. 393, adopt another course, and join her name with his own; and in that case, if he should die after judgment, the wife would be entitled to the benefit of the