Cornwall v. Hoyt

Peters, J. I. It has long been a moot point, whether a note or bond given to a wife, was suable in the name of the husband, or whether she may join in the action. If the property be his, she cannot join: if it be hers, she must join. By the common law, the chattels personal of the wife, are vested in the husband absolutely, but choses in action conditionally, — i. e. they are his, if he reduce them to possession during the cover-ture ; otherwise, they revert to her, or her representatives. There are a multitude of cases wherein the same rule has been applied to choses in action given to the wife during the cover-ture, especially where she is the meritorious cause of action— i. e. where the consideration of the promise arises from her property or personal labour, — though it is a truism, that a wife has no personal property, and that all her earnings vest in her husband. Pratt & ux. v. Taylor, Cro. Eliz. 61. Cookston & ux. v. Castline, Cro. Eliz. 96. Brashford v. Buckingham & ux. Cro. Jac. 77. Philliskirk & ux. v. Pluckwell, 2 Mau. Selw. 393. 1 Chitt. Plead. 19. and the cases there cited. But it seems to be the better opinion, that a note to a wife, is payable to the husband, and can be sued by him or his representatives only ; and so it was decided in Barlow v. Bishop, 1 East, 432. where a note was given to the wife, indorsed by her, and sued by the indorsee. The court said : “ It is clear, that the delivery of the note to the wife vested the interest in her husband.” The authority of the case is recognized, by this Court, in Griswold v. Penniman, 2 Conn. Rep. 564. 566. wherein the late Chief Justice, in delivering their unanimous opinion, inter alia, said : “ As to the property of the wife accruing dur [427] ing coverture, the same rule [mí ante'] is applicable, excepting in regard to choses in action. These vest absolutely in the husband.” “ Where a bond or note is given to the wife, the husband can maintain an action in his own name.” A similar opinion was expressed,i>y the same Court, in Fitch v. Ayer, 2 Conn. Rep. 143. 145. where a legacy was given to the wife during coverture. “ It is, in effect, and by law, a gift to the husband himself.” Vid. 1 Swift’s Dig. 28. But a decision of this question is, perhaps, unnecessary ; as it appears of record, and may be reviewed, by writ of error. 2. Whatever may be the law relative to a chose in action accruing to the wife during the coverture, in ordinary cases, it cannot affect the plaintiff. Her husband abandoned his country, and joined with its enemies hello flagrante, and thereby became not an alien, but a traitor. McIlvaine v. Coxe’s Lessee, 4 Cranch 209. And the question now is, what effect did this have upon the capacity of his wife ? Before this event, she could neither sue, nor be sued, ex contractu; as her legal existence was merged in that of her husband. Co. Litt. 112. 1 Bla. Comm. 442. By the common law, when a husband is banished, abjures the realm or goes into exile, he becomes civil-iter mortuus; and the wife’s power of contracting, suing and being sued, revives. Derry v. Duchess of Mazarine, 1 Ld. Raym. 147. Lady Belknap’s case, Co. Litt. 132. b. The case of Margene de Mose, wife of Thomas of Wayland, Co. Litt. 133. a. And I can perceive no difference between alien enemies and a traitor who has joined them. “ Under banishment,” says the late Ch. J. Swift, “ is comprehended what, in more modern times, would be called transportation ; and it has been determined, that where a husband has been banished for a limited time, which had not expired, the wife might be sued as a feme sole.” 1 Swift’s Dig. 30. Gregory v. Paul, 15 Mass. Rep. 31. 33. “On the same principle,” he proceeds, where a husband has been sentenced to new-gate, or any of the public prisons in the United States, for life, or even for a shorter time, it would seem the wife ought to have the same power to make contracts and to sue and be sued, as a feme sole ; for there is the same reason and the same necessity, as in the case of banishment. It is sufficient if the husband was in banishment, when the contract was made; or if it had expired, that he had not returned. De Gaillon v. L’Aigle, 1 Bos. & Pull. 357. Bogget v. Frier & al. 11 East, 301. [428] 3. The treaty did not restore the rights of John Cornwall. It stipulates, indeed, that Congress shall recommend the restitution of all confiscated estates belonging to real British subjects and others resident in districts protected by His Majesty’s arms, who had not borne arms against the United States. But this man was not a British subject, but a rebellious citizen; and the presumption is, that he bore arms against the United States; for he joined with their enemies, and never requested restitution, which Congress did recommend, but had no power to enforce. 4. The statute of limitations had no effect on the plaintiff’s claim. This is probably the first time, that a debt was supposed to be outlawed before it became due. This is a continuing annuity, and never can be presumed paid, during the life of the annuitant, although seventeen years, unexplained, may be evidence, that all sums payable so long before the date of the writ, had been paid. But on this point I give no opinion. 5.The documents given in evidence by the plaintiff, and admitted by the court, were not offered to prove title or interest in land, but merely to evince, that the defendant and others under him, occupied the premises by the permission of the plaintiff. Parol evidence would have been equally admissible, and would have had the same effect. I am, therefore, of opinion, that the decisions at the circuit were perfectly correct, excepting only the application of the statute of limitations to a part of this note; but of this the defendant cannot complain ; and therefore, I do not advise a new trial. The other Judges were of the same opinion. New trial not to be granted.