Now, so far with regard to a married woman's right to bind herself by contracts. But, with regard to her power of taking advantage of contracts made by other persons with her, the rule is somewhat different; for it has been decided that, if a contract be made with the wife on good consideration, during the marriage, the husband may, if he please, take advantage of it, and recover in an action on it, in which action he may join his wife as a co-plaintiff. And if he die without taking any such step, the right to sue upon it will survive to *the wife (q). One of the earliest authorities on this subject is Brash ford v. Buckingham (r), where the wife had undertaken to cure a wound for the sum of ten pounds which the patient was ungrateful enough not to pay; and after she and her husband had recovered judgment in an action of debt, a writ of error was brought in the Exchequer Chamber on the ground that a married woman could not sue. But the Court said, that, being grounded on a promise made to the wife, upon a matter arising upon her skill, and on a performance to be made to the wife, she is the cause of the action, and so the action brought in both their names is well enough, and such action shall survive to the wife. Wherefore the judgment was affirmed. On the same principle, if a bond be made payable to her, she and her husband may sue upon it (s).1 So if a promissory note be made payable to her. "Is not the wife," said Lord Ellenborough, "the meritorious cause of the action? She is the donee of the note, and it is acquired through her, and the note is a thing which of itself imports a consideration" (t). There is a very curious case of Richards v. *Richards (u), in which a married woman took a note from her own husband and two other persons. And it was held, that, though no one could have sued on it in his lifetime, yet, that, after his eath, she might sue the two surviving makers; and that decision is approved of in Gaters v. Madeley (x). In that case a promissory note was given to a married woman during the coverture. She survived her husband, and having afterwards herself died before the note was paid, it was held that her executor was entitled to maintain an action upon it. The rule was very clearly laid down in the judgment of Baron Parke. "This," said his Lordship, "is an action on a promissory note an instrument on which no one can sue unless he was originally party to it, or has become entitled to it under one who was. A promissory note is not a personal chattel in possession, but is a chose in action of a peculiar nature. It has, indeed, been made by statute assignable and transferable according to the custom of merchants, like a bill of exchange. Still it is a chose in action, and nothing more. 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; 1 or, if he sion, it is still a point of nicety and difficulty to determine what is a reducing into possession by the husband, such as to deprive the wife of her subsequent remedy. In the case of Hart v. Stephens (y), where the administrator of a deceased widow sued on a note given her dum sola; the Court held that the husband of *the deceased, by receiving interest on the note during the life of the wife, had not reduced it into possession; and it seems to have been assumed that receiving money on it, or bringing an action for it, are alone sufficient reductions into possession-a doctrine apparently sanctioned by Lord Ken-yon, C J., in Milner v. Milnes (2), and by Lord Hard-wicke in Garforth v. Bradley (a), who puts it on the ground of dissent to the interest remaining in the wife thereby evidenced on the part of the husband. In the still later case of Scarpellini v. Atcheson (b), a case which presents some noticeable features, the plaintiff was a widow, and the payee of a promissory note made to her during coverture by the defendant. The husband caused the wife, as the plea stated, "in his marital right," to endorse to F., who after his death delivered it to the wife, who then brought this action upon it. The court embodied in the judgment the doctrine we have just stated, and held that the facts as stated did not amount to a reduction into possession by the husband.1 Still more recently, in a case where the defend(y) 6 Q. B. (51 E. C. L. R.) 937. (z) 3 T. R. 627.
(q) So after divorce, Wells v. Malbon, 31 L. J. (Ch.) 344. (r) Cro. Jac. 77, confirmed in error, lb. 205.
(s) Day v. Padrone, 2 M. & Sel. 396, n. (6). See Johnson v. Lucas, 22 L. J. (Q. B.) 174; 1 E. & B. (72 E. C. L. R.) 659; Dalton v. Midland Counties By., 22 L. J. (C. P.) 177; 13 C. B. (76 E. C. L. E.) 474.
(t) Philliskirk v. Pluckwell, 2 M. & Sel. 395.
(u) 2 B. & Ad. (22 E. C. L. R.) 447.
1 [Note by Mr. J. C. Symons.] Upon a deed inter partes, made during co-verture, the effect of the authorities seems to be that, primdfatie, the right of action on the covenant belongs to the wife, and would survive to her on the death of the husband, without his having reduced it into possession, by dissenting from her right in some operative way, as by taking a new security so as to vest the interest in himself. Therefore, the coverture of the plaintiff in such a case cannot be pleaded in bar, and in an action brought by the plaintiff, the non-joinder of the husband can be pleaded only in abatement: Bendix v. Wakeman, 12 M. & W. 97.1
1 Coverture may be pleaded in abatement or in bar, according to circumstances; where the defence goes to the root of the demand, as, for instance, in an action on a bond given by the wife, it may be pleaded in bar: Steer v. Steer, 14 S. & R. 379; but where the defence is merely the disability of the wife to sue in her own name, it must be pleaded in abatement: Perry v. Boileau, 10 S. & R. 208; Lyman v. Albee, 7 Vt. 508-S.
(x) 6 M. & W. 423. See Bendix v. Wakeman, 12 M. & W. 97; Guyard v. Sutton, 3 C. B. (54 E. C. L. E.) 153:
1 There is a familiar class of cases in equity in which the husband has suffered the wife, after marriage, to acquire a separate property of her own, as where, in Slanning v. Style, 3 P. Wms. 338, a husband permitted his wife to make a profit of all the butter, eggs, and poultry, beyond what was used in the family, and borrowed of her £100, the fruit of these savings, she was held entitled to come in as a creditor upon his estate, after his death; so, in Fetti-place v. Gorges, 1 Ves. Jr. 46; Walter v. Hodge, 2 Swans. 103; Rogers v. Fales, 5 Pa. St. 157.