Cooper v. Alger , 51 N.H. 172 ( 1871 )

SaR(íent, J.

At common law the general rule is, that the wife cannot join in an action upon a contract made during the marriage, as for her work and labor, goods sold, or money lent by her during that time, for the husband is entitled to her earnings, and they shall not survive to her, but go to the personal representative of the husband, and she could have no property in the money lent or the goods sold. 1 Ch. PL 30. One exception is stated, that where the wife is the meritorious cause of action, as where a bond or note is given directly to her, or to her with her husband, or if she bestow her personal labor and skill in curing a wound, &c., she may'join, or she shall sue alone. Id. 30.

It is not easy to see, if the personal services and earnings of the wife belonged to the husband, as they are held to do, why the curing of a wound by her would stand upon any different ground from any other services or labor of the wife. The products of her skill would belong to her husband just as much as the products of any other labor of hers, and it is difficult to see how the right to recover pay for such services should survive to the wife in case of the death of the husb.and, any more than for the 'pay for other services. And it must be upon that ground alone that she should be joined with her husband, viz., that the right of action and of property would survive to the wife in case of the husband’s death. But such is the doctrine of the old authorities.

Now admitting such to be the law, and that at common law they might be joined in this case, still the main question here seems to be, whether, even then, under our statute, the Avife should not have sued alone. After the decision in Hoyt v. White, 46 N. H. 45, that under tbe acts of 1846 and of 1860 (and the act of 1865 made no change in that regard) the personal services and earnings of the wife belonged to the husband, and after that decision was published, in 1867, the legislature changed the law in that regard. See Gen. Stats., ch. 164, by enacting sec. 1, that “ every married woman shall hold to her own use, free from the interference or control of any husband she may have, all property at any time earned, acquired, or inherited by, bequeathed, given, or conveyed to her, either before or after marriage,” &c.; and in sec. 13, by providing that “ every married woman, holding property in her own right, shall have the same rights and remedies in relation thereto, and may sue and be sued in her own name at law and in equity, upon any contract by her made, or for any wrong by her done, in respect to such property,” &c.

In this case the question is, whether this claim of the wife against this defendant is property which she shall hold to her sole use, &c., under sec. 1. If the defendant had paid her the money for her services, that would have been property which she shall hold to her sole use. But suppose he had given her his promissory note for the amount, would that have been any the less property than the money ? and is the account in its present form any loss property than a note would be ? Notes and all other choses in action are personal property. Fling v. Goodall, 40 N. H. 208, 215, 218. And we think this claim was the wife’s property, just as the money would have been had it been paid to her.

The design of the statute evidently was to make her earnings her sole property, in whatever form they or the avails of them might exist, either as due her on account or by note, or if paid in money, or in any other property or estate, real or personal, purchased with that money, or by sale of such note or account. This property, then, she shall hold to her sole use, free from the interference or control of any husband she may have. This, then, being property which she must hold to her sole use, and having the same powers and rights conferred upon her to sue and be sued that any other single individual has, why should she join with herself as plaintiff another person who had no interest whatever in this claim, or any control over it? And why not as well join her brother, or any other friend, or any stranger even, as her husband ? He had no interest in the claim; he had and could have no control over it. He could not reduce this property to his possession, and while his wife lived he could acquire-no right in or to it, and when she died the cause of action would not survive to him as her husband, but the right of action and the right to the property must pass to her legal representative, her administrator, who might or might not be her husband ; and if the husband should be the administrator, ho must prosecute the suit and hold the property as such, and not as her surviving husband. Pettingill v. Butterfield, 45 N. H. 195; Whidden v. Coleman, 47 N. H. 297; Saltmarsh v. Candia (ante pp. 71, 73, 77).

The motion for nonsuit should have been granted. The verdict is set aside, and the plaintiff must be

Nonsuit.