45 N.H. 195 | N.H. | 1864
The note in suit was given to the wife before her marriage. After marriage a suit was brought upon it by the husband and wife, and pending this suit the wife died, and the husband now claims to prosecute the suit on the ground thathe has reduced this chosein action to his possession, or that he may now by some act so reduce it to his possession.
In Coke Litt. 351, b., it is laid down that " the marriage is an absolute gift of all chattels personal of the wife in possession in her own right, whether the husband survive the wife or not, but if they be in action, as debts by obligation, contract, or otherwise, the husband shall not have them, unless he and his wife recover them.” It is not enough that he commences a suit in his wife’s life-time, but, in o rder to reduce the chose in action to his possession, he must recover judgment in his wife’s life-time. Beamond v. Long, Cro. Car. 227; 1 Ch. Pl. (9 Am. Ed.) 31 and 32, where it is said that dioses in action or contracts made with the wife before coverture do not survive to the husband, and that he must, in order to recover the same, sue as administrator of his wife, and that, if, pending an action by husband and wife for such chose in action, the wife die, the suit abates, but if they obtain judgment, he may, notwithstanding her subsequent death, issue execution or support an action of debt on such judgment.
So in Checchi v. Powell, 6. B. & C. 253, which was a case like the present. Abbott, C. J., says: "The doctrine laid down in Coke Lit. 351, b., has always been received as law in Westminster Hall. Here, then, the debt was never vested in the husband, there being no recovery in the wife’s life-time. He may have another claim as her personal representative, but this action is at an end.”
At common law this suit cannot be maintained. Hoes our statute of 1860, chap. 2342, apply to this case? Sec. 1 provides "that every married woman shall hold to her own use, free from the interference or
But there is another reason why this statute may not apply to this case. The statute relates to, and is made for, the benefit of married women, and since they have the right to take care of their own property, in whatever way acquired before marriage, by an ante-nuptiaí contract, by the law of 1846, it would not seem necessary to make further provisions in regard to the property thus held by the woman before marriage.
It may be doubtful whether the statute of I860 does not mean simply this, that, when any property shall be inherited by, bequeathed, given, or conveyed to, any married woman, she shall hold the same to her own use, &c., that is, that it relates to property only which shall thus come to the wife after marriage. The wife in the case before us made an ante-nuptial contract in relation to a part of her property, and might as well in relation to the whole of it, if she had seen fit, but as she did not it may be doubtful whether so much as is not thus provided for does not remain subject to the provisions of the common law. But it is not necessary to decide this point, because if the law of 1860 should be held to apply to the property in question, it does not help the plaintiff in this suit. The wife having died before judgment, the husband’s attempt to reduce this chose in action to his possession has failed, and anything he can now do towards reducing it to his possession so as to recover upon it himself :s unavailing.
No amendment can be made allowing the administrator to appear with the present plaintiff, because they could not properly be joined, nor can the writ be amended by striking out the name of the present plaintiff, as we have no statute or rule authorizing such amendments. This action must abate. But, as the cause of action survives in this case, the administrator of the wife as her legal representative, may, on motion, have leave to appear and revive the action, and proseeute the suit, the same as in other cases where the cause of action survives.
Blackstone, in speaking of causes of abatement, mentions, among others, the death of the plaintiff, and says : "For the death of either party is at once an abatement of the suit, and in actions merely personal arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona, and it never shall be revived either by or against the executors, or other representatives, '* * But in actions arising ex contractu, by breach of promise, and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have assets to answer the demand, though the suits shall abate by the death of the parties, yet, they may be revived against or by the executors, being, indeed, rather actions against the property than the per
By the 8 & 9, W. 3, ch. 11, sec. 7, it was provided, that, in case of several plaintiffs or defendants, the death of one shall not abate the suit, if the cause of action survive to or against the survivors. And it is said 1 Ch. Pl. 448, that, where a sole plaintiff dies, pending the suit, such death may he pleaded in abatement, and alludes to the provisions of the act 8 and 9, W. as above. Bac. Ab. Abatement, F; 1 Saund. Pl. & Ev. 2.
In this case,then, the suit abates, because, though brought in the name of two plaintiffs, yet when the wife died, no right survived to the husband to prosecute the suit, but the right survives only to the wife’s administrator, who has the same right now to recover the note in suit as the husband and wife together had in the life-time of the wife.
Rev. Stats. ch. 186, sec. 14; (Comp. S. 481,) provides that actions of trespass quare clausum,, trover, actions against sheriffs, real actions, aetions of ejectment and of trespass de bonis, shall not abate by the death of either party, but may be prosecuted, <fec., in the same manner as other actions, the cause of which by law survives. And every administrator may prosecute or defend any action pending in any court against the deceased, in case the cause of .action does by law survive. Rev. Stats, ch. 161, sec. 16.
All our statute means, when it says that actions of trespass, &c., shall not abate, is, as Blaekstone expresses it, that the executor or administrator shall have leave to come in and revive the action and prosecute it, in such case, the same as in cases where the cause survives the death of the party. Technically speaking, the suit or action abates in all cases with the death of the jdaintiff, where there is but one, and in all other cases unless the cause survives to one or more of the surviving plaintiffs. But where the suit or action has thus abated, it may be revived by the coming in of the administrator to prosecute.. So, in bills in equity, by analogy, upon the death of the plaintiff, the administrator brings his bill of revivor, to revive the action, which amounts to the same as appearing to prosecute in an action at law.
As the case stands, the action will abate and the present plaintiff will thus go out of court; but,should the wife’s administrator move to that effect, he will be allowed to come in and revive and prosecute the suit. That this suit cannot be maintained in the name of the present plaintiff, even to avoid circuity of action, is well settled. Jenkins v. Freyer, 4 Paige, 47; Woodin v. Bagley, 13 Wend. 453; Beecher v. Crouse, 19 Wend. 306.
Action abates.
