riage, and the conversion was after. 1 Sid. 172; 2 Lev. 107; 1 Vent. 261; Com. Dig. Baron & Feme, (X.)

So, if a woman lease for years, rendering rent, and afterwards marry, the husband and wife may join in debt for the rent, or the husband may sue alone for it. lbid, Palmer, 207.

In general, where the wife is the meritorious cause of action, the husband may join his wife, or he may sue alone. 2 Cro. 77, 205; 1 Salk. 114.

Whenever the action will survive to the wife, she may be joined, although in such cases the husband is not always bound to join her. 1 Free. 236.

Where the wife is joined, the nature of her interest, unless necessarily implied, should appear in the declaration. 2 New R. 405; 2 Bl. R. 1236; 2 Caines' R. 221.

In cases where the husband may sue alone or join his wife, at discretion, if he sues alone and dies before judgment, his administrator will come in and prosecute; and the right of action will not survive to the wife, because, by sueing alone, the husband declares or manifests his intention to appropriate the cause of action to himself. But, in such case, if he joins his wife, he shows no such intention, and therefore his wife will prosecute the action by survivorship to her own proper use. Qu.

An action may be commenced by the husband alone on a promissory note given her after marriage, or he may join his wife.

So, whether joint lessors, or joint lessees, the husband and wife jointly may maintian covenant for a breach of the covenants in the lease, or the husband may sue alone at his discretion. Aleberry v. Walby, 1 Str. 129.

3. In what actions husband and wife MUST join.

It is laid down, as a general rule, that whenever the cause of action will survive to the wife, she must be joined. 1 Wils. 224. Dunstan & wife v. Burwell, &c. But this will not hold good as a general rule. It should be, that, whenever it is not in the power of the husband to destroy the wife's survivorship, they must be joined. For, in all cases, where the husband may join his wife or sue alone, at his discretion, by sueing alone he destroys his wife's survivorship. Qu.

In all real actions for the wife's land, the husband and wife ought to join. 1 Bul. 21.

So, in personal actions for a chose in action due to the wife before

marriage, as in debt upon a bond made to the wife before marriage, they ought to join. Cro. Eliz. 537; 3 T. R. 631.

For the same reason, the husband and wife must join in trover, upon a conversion of the wife's goods before marriage; and in trespass, for a trespass before marriage; and in assumpsit, upon a promise to the wife before marriage.

For a personal wrong to the wife, as ment, the husband and wife must join. 1 Salk, 119.

battery or false imprison

Yelv. 89; 2 Cro. 501;

So, in an action for a thing due to the wife en auter droit, as executrix, &c., they should join. See 5 Johns. R. 66.

So, in trespass, for treading down the grass of the inheritance of the wife, they should join. Bunb. 277.

But in trespass for carrying away, after marriage, things severed from the freehold, the husband must sue alone. Because things severed from the freehold, belong to the husband, and go to his executor and not to his wife, after his death. See Cro. Eliz. 133; 2 Wils. 424.

For the same reason, a declaration for money "lent by husband and wife," after marriage, will be bad, and judgment will be ar rested for that cause after verdict; the declaration is false, because she can have no money after her marriage; and the conclusion, to their damage, vitiates the action. In such case, the action should be brought by the husband alone. King & uxor v. Basingham, 8.

Mo. 341.

4. What actions MUST be brought against husband and wife. For a debt due from the wife before coverture, the husband and wife must be joined. Com. Dig. Baron & Feme, (Y); 15 Johns. R103.

Real actions for the land of the wife, must be brought against husband and wife. Ibid.

So an action, which charges the husband for an act of his wife done before coverture; as trover upon a conversion before marriage, must be brought against both. Co. Litt. 551, b.

So, in debt for rent due before coverture, upon a lease made to the wife, the husband and wife must be jointly sued.

Debt must be brought against both, for rent due on a lease, which the wife has as executrix or administratrix.

For a tortious act, done by the wife alone, after marriage, the husband and wife must be joined. Com. Dig. Baron & Feme, (Y.)

9

In the late case, Hayward v. Hayward, 20 Pick. 517, the law on the subject of joinder in action by husband, is incidentally discussed. The point of that case is, "if a distributive share of personal estate accrue to the wife during coverture, and the husband die before the decree of distribution, and without any act on his part reducing it to possession, it survives to the wife. Sed quære of the last clause in italic, "without any act on his part reducing it to possession." How can the husband reduce it to possession before the order of distribution? Can he assign it before the order of distribution, so as to prevent the wife's survivorship in case he dies before the order is granted?

5. In what actions husband MUST be sued alone. An action for a tort done by the husband and wife jointly, (or, as it seems, by the wife in his presence,) must be brought against him alone, as it is intended to be his act. Pal. 343. But, if the tortious act is done by the wife alone, the husband and wife must be sued jointly. 1 Leon. 312.

In all cases, where the husband alone is answerable, he alone must be sued. As, in cases of simple contract signed by both. 4 Leon. 42.

And for the same reason, in cases of covenants in deeds respecting real estate, where he alone is bound.

So debt lies against the husband alone, for rent incurred during coverture, upon a lease made to the wife before marriage. Co. Litt. 556.

Two persons sued as man and wife, may plead a divorce between them. See Cro. Eliz. 352, where the writ was abated for that cause. 6. What actions the husband shall have by surviving his wife. For choses in action, accruing to the wife before coverture, the husband can maintain no action after her decease, except as an administrator on her estate. Co. Litt. 317; 3 Mod. 186.

But it seems, generally, that all actions, in which the husband must sue alone, during coverture, he may have in his own right, if he survives his wife.

The husband, after his wife's death, shall have an action for any thing incurred during the coverture; as debt for rent due during

coverture.

For his wife's earnings during coverture, he may have an action after her decease; and even if she survives him, his representatives shall have the action. See 6 John. R. 112.

7. What actions the wife shall have by surviving her husband. All choses in action, debts by obligation, &c., belonging to the wife before marriage, if not collected by the husband during the coverture, or transferred by him for a valuable consideration, will survive to the wife. 3 Mod. 186.

So, also, actions relating to her freehold or inheritance, and injuries done to her person. See 1 Rol. 350; 17 Johns. 271.

In all cases, where it is at the husband's option, whether to join his wife or not, if he joins her, it is considered a presumption that he intended that the property should survive to her. Yelv. 1.

And generally, in all those cases where the husband and wife must join if she survives him, the cause of action survives to her, and does not go to her husband's executor. 1 Rol. 342, 2729.

If the wife survives, she shall have trespass for a trespass to her land during coverture. Pal. 313.

If husband and wife recover in a real action, and the husband dies, the wife shall have execution and not the husband's executor. 3 Atk. 20; 1 Vern. 396. So for a debt due to the wife. 3 Atk. 20; 3 Mo. 186.

To bar a wife's right of survivorship to choses in action belonging to her before marriage, there must be judgment and execution at suit of the husband and wife; judgment alone is not sufficient. See Clancy's Rights of Women, 112, 113. To bar her right of survivorship to choses in action during coverture, judgment alone, recovered by the husband in a suit by him alone, is sufficient.

In the latter case, if he joins her in a suit and recovers judgment and dies, the judgment survives to her. Aleyn, 36.

8. What actions may or may not be maintained against the husband after his wife's death.

During marriage, the husband is liable for all his wife's debts. contracted before coverture, But they must be collected during the marriage; he is not liable after her death. 1 Camp. 189; Com. Dig. Baron & Feme, (2 C.)

If a woman, lessee for life or years, takes husband and dies, he is liable for the rent incurred during the coverture, because he takes the profits of the land. 1 Lev. 25.

If there be judgment against husband and wife, upon a bond of the wife, who dies before execution, the husband shall be charged. 1 Sid. 337; Lut. 671.

If judgment is recovered against a woman while sole, and she

afterwards takes husband and dies, the husband shall not be charged upon this judgment. But, if judgment is recovered against both, for her debt while sole, in that case, the judgment will survive against him. See 3 Mo. 186. This is agreeable to analogy; for, if husband and wife recover judgment for a debt due to her, it survives to the husband. 1 Mo. 179. Scire facias was awarded to

him. See Cro. Car. 208.

9. What actions may be maintained against the wife after the husband's death.

Whatever debts the wife owes before marriage, and which are not paid during the husband's life, revive against the wife after his decease. Gil. Cas. 361; 1 Camp. R. 189.

Actions in which it is necessary to sue husband and wife, survive against the wife after his death. See Mitchenson v. Hewson, 7 T. R. 348.

And as the husband is not liable for such debts after a divorce a vinculo, it is presumed they revive against the wife, in such case, as they would survive against her if he were dead.

10. Further remarks respecting actions in which husband and wife are concerned.

Two actions, one against a man and his wife, and the other against the man alone, cannot be consolidated. 2 Wils. 227.

A husband is liable for debts contracted by his wife after coverture, with or without his consent, in the following cases:

1. Where she has been obliged, by his misconduct, to leave the house and take up necessaries. 4 Esp. C. 41; 11 Johns. R. 281.

2. Where he turns her out of doors without sufficient cause, he will be liable for necessaries for her to the person who furnishes her, and this, even if he gives a general notice to every one not to trust her. And, if she employs an attorney to exhibit articles of the peace against her husband for his ill usage, the husband will be liable to the attorney. See Bolton v. Prentice, 2 Str. 1214; 3 Camp. 326.

In what cases the husband will be discharged from liability for his wife's debts, on the ground of allowing her a separate maintenance, sufficient, according to his circumstances, and punctually paid, with notice or knowledge of these facts to the person giving the credit, see examined at length in Clancy's Rights of Women, 28, &c.

3. If the husband, having the goods purchased by his wife in