Page:The American Cyclopædia (1879) Volume IX.djvu/94

 86 HUSBAND AND WIFE ken. But if the thing which she purposes to obtain by the contract be money, or the right to dividends, or any other right, and it remains to be received or acquired after her marriage, she herself possesses not the thing, but a right to demand and receive the thing ; and this right is a thing in action (usually called by the Nor- man French phrase a chose in action), and not a thing in possession. This chose in action, be- longing to the wife, passes by marriage to the husband, but not absolutely. What he acquires is the right to reduce it to possession, and thereby make it absolutely his own. But he is not obliged to reduce it to possession ; and if he does not, and dies, the wife surviving him, all his right is gone, and the chose in action re- mains as absolutely the property of the widow as it would have been had she never married. The principal choses in action to which this rule applies are notes, bills of exchange, and evidences of debt generally, and scrip or stocks standing in her name. The principal ways of reducing it to his possession are four : by col- lecting and receiving the debt for his own use; making a new contract with the debtor in his own name, in substitution for ,her name ; hav- ing the scrip or certificates or other evidences of debt transferred to himself and his own name ; or suing the debt and recovering a judg- ment upon it. If she dies before him, and be- fore he has reduced them to his own posses- sion, he may now do so as her administrator, and then retain them for his own benefit. If he dies (having survived her) without having reduced them to possession, his next of kin may take out letters as her administrator, and reduce the choses in action to possession for his heirs. In regard to the debts she owes at the time of marriage, the general rule is that the husband is answerable for all of these. The creditor may demand payment of the husband, and may sue him. This is equally true of the debts which had matured and become due before marriage, and of those which were not payable until afterward ; and his liability for her debts is the same, whether he re- ceives much with her, or little, or nothing. But this liability is not absolute ; for if she dies before he pays the debt, and before a judgment is recovered against him, his lia- bility ceases. But if she leaves choses in ac- tion not reduced to the husband's possession, these are still liable for her debts, and the hus- band, or whoever becomes her administrator, must apply them to pay these debts, and retain only the surplus for the husband or his next of kin. If he dies before he pays her debts, and before judgment is rendered against him, his^estate is not liable, but the wife's liability, which was suspended during his life, revives at his death. This is true although he received a large property with her. But when a wife thus brings a considerable property to her hus- band, courts of equity sometimes interfere on her application and compel him and his assignees to make an equitable settlement out of it for the support of herself and of the children of the marriage, if any. 3. We will now consider the contracts or obligations of the wife made or en- tered into during marriage. In the first place, a married woman has at common law no power whatever to make a valid contract which shall bind herself or her husband. If money is due for her services, or for money lent by her, it is due not to her, but to him. Her time and her labor and her money are all his. But she may act as his agent in making a contract, and if authorized by him, he is bound. This au- thority may be express, or it may be implied from frequent acts of agency recognized by him, as when she acts as his clerk, accepting or paying bills, &c. ; and then it does not differ in law from a common agency. There is, how- ever, an important and peculiar agency of the wife, growing out of her duties ; and this is an implied agency for the husband in all domestic matters, as the hiring of servants, and the pur- chase of provisions and of clothing for the family. As this grows out of necessity, it is measured by it ; but the law means a reasonable neces- sity, and this is only an appropriateness. For any contract of this sort made by her, which is in due conformity with her husband's means, station, and manner of life, would bind him, and he would not be permitted to deny his authority. If they exceeded this necessity or appropriateness, the husband could be held only on some evidence of authority or assent, as that he knew the contract, or saw the things bought, and made no objection. The question then occurs, How far is the husband bound to supply the necessities of the wife ? The gen- eral rule on this subject is, that he is bound to supply her with all necessaries, which means in this case all her reasonable wants, while they live together. If they separate be- cause he drives her away without sufficient cause, the same liability continues; and then he is responsible for any debts she may con- tract for this purpose. Even Lord Eldon de- clared that " where a man turns his wife out of doors, he sends with her credit for her rea- sonable expenses." (3 Espinasse, 250.) There can hardly be a sufficient cause for thus casting her off without his liability for her subsistence, unless it be her adultery ; but this certainly is sufficient. If, however, she voluntarily leaves him, she cannot carry his credit with her, un- less she leaves with sufficient cause ; and while it is not easy to determine in all cases what would be sufficient cause, perhaps it would be safe to say that any cause which would be suf- ficient for divorce, either from the bonds of matrimony or from bed and board, would jus- tify her leaving. While the law is now pretty well settled, both in England and in this coun- try, as to when the husband is liable for neces- saries furnished to the wife, and when he is not, a question of much moment remains, and of late years has been much considered, viz. : On what ground does this liability rest? It must rest on his authority as proved, or as im-