Now a contract by or with a married woman is one of two sorts: it is either a contract which she entered into before her marriage, and which continued in existence afterwards; or it is a contract which she entered into subsequently to her marriage.
Now, with regard to the former description of contracts, by the Common Law,1 unqualified by the provisions of recent legislation, upon the marriage, the benefit of, and the liability to, the wife's contracts made before marriage, vest in the husband, and continue vested in him during the continuance of the marriage (m). If she die before they are enforced, and he survive her, he is entitled to *the benefit of such contracts, not in his own right, but as her administrator (n),2 and is liable to be sued on them, not in his individual capacity, but as his wife's administrator. Thus, in an action on a promissory note, brought by the administrator of Ann Hart, it was proved that it was made by the defendant and delivered by him to Ann Hart, who was then a feme sole, but who afterwards married William Hart (not her administra(m) Mitchinson v. Hewson, 7 T. R. 348; Com. Dig. tit. "Baron and Feme," E. 3. See Milner v. Milnes, 3 T. R. 627; Sel. N. P. 243, 13th ed. (n) Betts v. Kimpton, 2 B. & Ad. (22 E. C. L. R.) 273.
1 The reader will note, perhaps with surprise, that no reference is made in the succeeding pages to American statutes affecting married women. But these have become so numerous during the last thirty-five years, and vary so greatly in the different States, that it does not appear practicable to reduce them to anything like order or to make an epitome of them which will be at all complete and accurate, within the limits necessarily prescribed in this work.
2 Collins v. Hoxie, 9 Paige, 81; Hunter v. Hallett, 1 Edw. Ch. 388; Coleman v. Waples, 1 Harring. 196. So that if the husband die without having taken out letters of administration, his administrator cannot recover her choses in action, but administration must be taken out to the wife : Betts v. Kimpton, 2 B. & Ad. (22 E. C. L. R.) 273; Squib v. Wyn, 1 P. Wms. 378; Stewart v. Stewart, 7 Johns. Ch. 229. If, however, the husband has taken out letters of administration to his wife's estate, and die before its full administration, his representative is, in the absence of any statutory enactment, entitled to administration de bonis nov,: Donnington v. Mitchell, 2 N. J. Eq. 243.-R.
Tor), and died intestate in his lifetime. The Court held that the note clearly did not become the property of William Hart, but passed to the plaintiff as her administrator; and that the husband, not having obtained administration to his wife, had no interest in the note (o). If she survive him, her right to the benefit of, and her liability upon, such contract revives, assuming always that nothing has been done to put an end to the contract during the continuance of the marriage (p).1 "With respect to debts due to the wife dum sola, the husband," says Lord Ellenborough, "is her irrevocable attorney, if I may say so: and if he reduce them into possession during the coverture, they become his debt, but until that is done they remain the debt of the wife; and all the cases agree that in the event of his death, they would survive to her." *The Court, therefore, held that the husband alone could not be petitioning creditor upon the bankruptcy of a debtor of his wife, who became her debtor before her marriage (q). And the Court of Exchequer, upon the same ground of survivorship in the wife, decided that if the husband became bankrupt, his assignees could not sue in their own names alone upon a promissory note given to the wife before marriage (r).1
(o) Hart v. Stephens, 6 Q. B. (51 E. C. L. R.) 937.
(p) Rumsey v. George, 1 M. & Sel. 176; Fitzgerald v. Fitzgerald, 8 C. B. (65 E. C. L R.) 592.
1 Blount v. Bestland, 5 Ves. Jr. 315; Schuyler v. Hoyle, 5 Johns. Ch. 196; Hayward v. Hayward, 20 Pick. 517; Strong v. Smith, 1 Mete. 476; Weeks v. Weeks, 5 Ired. Eq. Ill, where the previous cases in North Carolina are noticed. The result briefly is, at Common Law, that for all the debts of the wife, contracted before marriage, no matter how improvident they may be, the husband is personally liable during coverture, and no longer, and this though he may not have received a cent by her; and, on the other hand, upon her death, his personal liability for her debts contracted before marriage is wholly wiped out, though he may have received a fortune by her. The apparent injustice of this latter rule, than which nothing is better settled (Tabb v. Boyd, 4 Call, 453; Buckner v. Smyth, 4 Desaus. 371; Witherspoon v. Dubose, 1 Bai. Eq. 166), has often been strongly urged, and equity been invoked to modify it, and Lord Nottingham is reported to have said, with some earnestness, that " he would alter the law on that point;" but in Heard v. Stamford, Cas. Temp. Talbot, s. c. 3 P. Wms. 411, the Chancellor said, "It is extremely clear that by law the husband is liable for the wife's debts only during the coverture, unless the creditor recovers judgment against him in the wife's lifetime, and I do not see how anything less than an act of Parliament can alter the law. If I relieve against the husband because he had sufficient assets with his wife wherewith to satisfy the demand in question, by the same reason, where a feme indebted dum sola marries, bringing no fortune to her husband, and judgment is recovered against the husband, after which the wife dies, I ought to grant relief to the husband against such judgment, which yet is not in my power, consequently there can be no ground for a court of equity to interpose in the present case; and if the law, as it now stands, be thought inconvenient, it will be a good reason for the legislature to alter it, but till that is done, what is law at present must take place." See to the same effect the remarks of Lord Redesdale in Adair v. Shaw, 1 Sch. & Lef. 243.-R.