Thorne v. Dillingham , 1 Denio 254 ( 1845 )

By the Court, Beardsley, J.

In general, a wife cannot join with her husband in an action upon any contract made during coverture, whether with the wife alone as the party, or with the two jointly. But to this rule there are exceptions; for where the wife is the meritorious cause of action, and a party to an express promise founded thereon, she may be joined with her husband in an action for its violation. (1 Roper on Husb. and Wife, 213; Rose v. Bowler, 1 H. Bl. 108; Weller v. Baker, 2 Wils. 424; Buckley v. Collier, Carthew, 251; S. C. 1 Salk. 114; Brashford v. Buckingham, Cro. Jac. 77; id. S. C. 205; Phillishirk v. Plucknell, 2 M. & Sel. 393; Executors of Schoonmaker v. Elmendorff, 10 John. 49; Staley v. Barhite, 2 Caines, 221; Browne on Actions at Law, 239; 1 Chitty's Pl. 33, 7th Am. ed.; Chitty on Cont. 176, 180, 5th Am. ed.) In all such cases, however, the declaration must distinctly state the particular cause for making the wife a party to the action, for it will not be presumed that any such cause exists. The authorities referred to are full to this point.

In the present case the declaration sets forth no cause whatever for making the wife a party. It was adjudged in Bidgood v. Way and wife, (2 W. Bl. 1236,) that an action for money had and received to the use of husband and wife; and a promise thereupon to both, would not lie, and the judgment which had been rendered by default in the-K. B., was, on that ground, reversed in the exchequer chamber. (See also Buckley v. Collier, Phillishirk v. Plucknell, cited before; 3 East, 104; Ord v. Fenwick, Cro. Jac. 644; Abbot v. Blofield, 1 Roper, 214.)

The declaration in this case is, therefore, bad: a judgment upon it in favor of the plaintiffs would be erroneous.

On the merits, I think no action for money had and received could be sustained upon the facts proved. Such an action would not lie in favor of Caroline, (the wife.) if she had never married. The money claimed w;as not received by the testator to her use ; it was advanced to him as his own property; and as claimed on the part of the plaintiffs, he only hound himself that a like sum should be.paid to Caroline after the decease of himself and his wife. A count for money had and received, is not adapted to such a case. The action must be on the special agreement. (Seaman v. Whitney, 24 Wend. 260; 2 Saund. Pl. & Ev. 672; Chitty on Cont. 602, 609; 1 Chitty's Pl. 386, 387.) But this view need not be pursued further. The defendant asks to have the judgment arrested, and as the declaration is radically bad, he is entitled to his motion-.

Judgment arrested.