In a very recent case in the Exchequer, Messenger v. Clarke, 5 Exch. 388, a wife who lived apart from her husband, purchased stock in her maiden name, out of the allowance made to her by him, and having sold out this stock, and given the proceeds to her brother as a gift, the husband was held entitled to recover it from him after her death, the Court holding, that although her allowance was not subject to recall by her husband, yet that the stock when purchased, became his, and that she had no authority to dispose of it as a gift. It was said, however, that if it had been parted with for a 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:1 or he may 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 note, as the judgment would survive to her."
Here, you see, all the possible cases are put, and the consequence of each pointed out, which makes this judgment a very useful one for the purpose of practical reference.
Though it is settled law that a promissory note given to the wife during coverture is a chose in action, and not a personal chattel vested in the husband, and that upon his death the right to sue on it survives to the widow unless the husband has reduced it into possesvaluable consideration, or the money been applied in payment of debt, it would have been otherwise. It is well settled with respect to the husband's right of disposition over his wife's choses in action, he cannot give them away : Burnett v. Kinnaston, 2 Vern. 401; Jewson v. Moulson, 2 Atk. 417; Mitford v. Mitford, 9 Ves. Jr. 87; Johnson v. Johnson, 1 J. & W. 456; Hartman v. Dow-del, 1 Rawle, 279; Parsons v. Parsons, 9 N. H. 309; whatever may be his power of barring her right of survivorship by an assignment or mortgage for a valuable consideration, or an application of them in discharge of a debt. See Ryland v. Smith, 1 Myl. & Cr. 53.-R.
1 It has however been held in Massachusetts, that a note given or endorsed to a wife during coverture, is to be considered as actually reduced into possession, and at the husband's death would therefore go to his representative, to the exclusion of the wife's survivorship: Shuttlesworth v. Noyes, 8 Mass. 229; Com. v. Marley, 12 Pick. 173. He may, indeed, in such cases sue alone, and thus exercise his powers of reducing it into possession, but until he does so, or receives the money without suit, it would seem that he cannot be considered as having at all interfered with it, so as to deprive her of her survivorship.-R.
(a) 2 Ves. 675; Michelmore v. Mudge, 29 L. J. (Ch.) 609; Hamilton Mills, 29 Beav. 193. (b) 7 Q. B. (53 E. C. L. R.) 864.
1 On the subject of reduction to possession by the husband of the wife's choses in action, see Poor v. Hazleton, 15 N. H. 564; Stoner v. The Com., 16 Pa. St. 387; Barron v. Barron, 24 Vt. 375; Abington v. Travis, 15 Mo. 240,-s.
Ant received money from a third person to be appropriated to the use of a married woman, and he wrote telling her he held the money at her disposal, and the husband survived the wife, and died, never having at any time interfered in any *way as to the money; it was held that the wife's representative and not the husband's was the proper party to sue for the money, as the facts showed a chose in action conferred on the wife with which the husband had not interfered during coverture (c).
Such then being the state of the Common Law, qualified only by the statute in cases of judicial separation or desertion, we now come to the effect of the "Married Women's Property Act, 1870" (33 & 34 Vict., c. 93), on contracts entered into by a married woman subsequently to her marriage. By sect. 1 of that Act, the wages and earnings (d) of any married woman acquired or gained by her after the passing of the Act in any employment, occupation, or trade, in which she is engaged or which she carries on separately (e) from her husband, and *also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property, held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money, and property. Under sect. 10 of the same Act, "a married woman may effect a policy of insurance upon her own life or the life of her husband for her separate use, and the same and all benefit thereof, if expressed on the face of it to be so effected, shall enure accordingly, and the contract in such policy shall be as valid as if made with an unmarried woman." And sect. 11 enables a married woman to maintain an action in her own name for the recovery of any wages, earnings, money and property by the Act declared to be her separate property; and gives her in her own name the same remedies against all persons whomsoever for the jirotection and security of such wages, earnings, money, and property, and of any chattels or other property purchased or obtained by means thereof for her own use, as if such wages, earnings, money, chattels, and property belonged to her as an unmarried woman (f).
(c) Fleet v. Perrins, L. R. 3 Q. B. 536; 37 L. J. (Q. B.) 233; affirmed in Ex. Ch, L. R. 4 Q. B. 500; 38 L. J. (Q. B.) 257. See also Jones v. Cuth-bertson, L. R. 7 Q. B. 218; 41 L. J. (Q. B.) 145; affirmed in Ex. Ch., L. R. 8 Q. B. 504; 42 L. J. (Q. B.) 221; Nicholson v. Drury Buildings Building Co., 7 Ch. Div., 48; 47 L. J. (Ch.) 193; Widgery v. Tepper. 5 Ch. Div. 51(5, 7 lb. 423; 46 L. J. (Ch.) 579, 47 lb. 550; In re Barber, Dardier v. Chapman, 11 Ch. Div. 442; Parker v. Lechmere, 12 Ch. Div. 256.