The mis ulent. *vigilantibus non dormientibus jura subveniunt." Where a false representation was made respecting the quality of goods, and the purchaser had a full opportunity to inspect them, and to ascertain the truth of the representation, and a written contract of sale was afterwards entered into, the terms of which had no reference to the representation; it was held that an action of deceit would not lie against the vendor for the misrepresentation.b Where the plaintiff bought a horse, warranted sound, by private contract, at a repository; at the time of sale there was a board fixed to the wall of the repository, having certain rules painted upon it, one of which was, that a warranty of soundness there given should remain in force at noon of the day following, when the sale should become complete, and the seller's responsibility terminated, unless a notice and surgeon's certificate of unsoundness were given in the meantime; the rules were not particularly referred to at the time of this sale and warranty; the horse proved unsound, but no complaint was made till after twelve on the following day; the unsoundness was of a nature likely not to be immediately discovered; some evidence was given to show that the defendant knew of it, and the horse was shown at the sale under circumstances favorable for concealing it; after verdict for the plaintiff; held, that there was sufficient proof of the plaintiff having had notice of the rules at the time of the sale to render them binding on him; held also, that the rule in question was such as a seller might reasonably impose, and that the facts did not show such fraud or artifice in him as would render the condition inoperative, for this was a warranty against such faults only as the purchaser might discover within twenty-four hours. To sustain an action on the case in the nature of deceit, the represent plaintiff must show that the misrepresentations were not only ation must false but fraudulent; and that a damage resulted to him from be false and fraud- the fraud of the defendant. The scienter must be alleged in the declaration, *and proved at the trial. Where the declara*1081 tion alleged that the defendant had sold certain goods, as his The sci- own goods, to the plaintiff, when in truth they were the goods enter must of another person; it was held bad for want of an averment, be alleged that the defendant sold the goods knowing that they were the proved. goods of another person. So where the declaration stated, that the defendant being a goldsmith, and having skill in pre and See Cayley v. Merrell, Cro. Jac. 386. Per Grose, J., in Pasley v. Freeman, 3 T. R. 55. Dyer v. Hargrave, 10 Ves. 507. Pickering v. Dowson, 4 Taunt. 779. Bywater v. Richardson, 3 Nev. & M. 748. 1 Adol. & Ellis, 508. (28 Eng. C. L. 135.) Per Lord Ellenborough, C. J., in Vernon v. Keyes, 12 East, 636. "The fraud must consist in depriving the plaintiff, by deceitful means, of some benefit which the law entitled him to demand or expect." Id. Dale's case, Cro. Eliz. 44. See Freeman v. Baker, 5 B. & Ad. 797, (27 Eng. C. L. 194,) ante. Dowding v. Mortimer, 2 East, 450, n. cious stones, sold a stone to the plaintiff for a sum of money, affirming it to be a bezoar stone, whereas, in truth, it was not a bezoar stone; it was held ill for want of an averment that the defendant knew it was not a bezoar stone." In an action for a false and deceitful representation of the annual returns of a business sold to the plaintiff, an averment that defendant represented the returns to amount to a certain sum, is material, and must be precisely proved, notwithstanding it be laid under a videlicet; and a variance between the allegation and proof is a good ground of nonsuit after verdict.b In case against the vendor of a public-house, for fraudulent misrepresentations of the business of the house; evidence of the actual value of the premises is admissible in reduction of damages, but not as a bar to the action.c Where the action was for a misrepresentation of a publican's profits, and it appeared that the defendant had named his brewer, and stated that a pass book was kept of the beer and spirits; but the plaintiff made no inquiry of the brewer, nor asked for the pass book; it was, held, that the omissions did not bar the action, but was proper for the consideration of the jury, on the question whether any fraud had been practised.a Chandelor v. Lopus, Cro. Jac. 4. It is observable, however, that where there is an express warranty, though the action be in tort, the scienter need not be averred or proved; for the breach of warranty, and not the deceit, is the gist of the action. Williamson v. Allison, 2 East, 446. Assumpsit, however, is the most usual form of action, where there is an express warranty. Gilbert v. Stanislaus, 3 Price, 54. e Pearson v. Wheeler, R. & M. 303. & Bowring v. Stevens, 2 C. & P. 337. (21 Eng. C. L. 446.) *CHAPTER XV. HUSBAND AND WIFE. PAGE I. Of the operation of marriage on the wife's property. 1086 III. Liability of the husband for the contracts of his wife 1089 IV. When a married woman is considered as a feme sole. 1100 V. Privilege of a married woman from arrest. 1105 VI. Actions by husband and wife, and herein of their joinder 1107 ly sued. 1118 VIII. Of deeds of separation. 1121 in his SECTION I. OF THE OPERATION OF MARRIAGE ON THE WIFE'S PROPERTY. The hus- MARRIAGE is an absolute gift to the husband of all the band has goods, personal chattels, and estate which the wife was acan abso- tually and beneficially possessed of at that time in her own lute right right, and of such other goods and personal chattels as come wife's per- to her during the marriage. But to the chattels real of which sonal pro- the wife is or may be possessed during the marriage, the law perty. gives to the husband a qualified title only, i. e. an interest in But a qua- his wife's right, with a power of alienation during the coverlified right only in her ture; if, therefore, he disposes of his wife's terms for years by a complete act in his lifetime, her right by survivorship will be completely defeated; but if he do not alien them, and he survive her, the law gives them to him, not as representing his wife, but as a marital right; no administration, therefore, is necessary to be taken out by him to her." real pro perty. *1083 *If, however, the wife be survivor, and the terms remain in statu quo, she, and not her husband's next of kin, will be entitled to them; hence, it follows, that he cannot dispose of them by his will against her surviving him; for as that does not take effect until after his death the law takes precedence and vests the terms in the wife immediately upon the decease; but a Co. Litt. 300. Per Lord Tenterden, C. J., 2 B. & Ad. 453. (22 Eng. C. L. 119.) A husband is entitled to the personal property of his wife, which she acquired by living apart from him in adultery. Agar v. Blethyn, 2 C. M. & R. 699. 1 Roll. Ab. 345. Dyer, 251. Co. Litt. 46, b. 351, a. Doe v. Polgrean, 1 H. Bl. 535. Moody v. Matthews, 7 Ves. 183. The funds of a married woman standing in the name of the accountant-general to her account, may be pledged by her husband, Sansum v. Dewar, 3 Russ. 91. A wife's term may be disposed of or forfeited by her husband, or taken in execution for his debt; but if not, it survives against his representatives. Wildman v. Wildman, 9 Ves. 177. Murray v. Ellibank, 10 Ves. 90. if he happen to be the survivor, then his testamentary disposition will be good." Marriage, however, makes no such gift to the husband of the goods and chattels which belong to his wife in autre droit as executrix or administratrix; for the wife takes no beneficial interest in the property, there is none such, therefore, which the law can transfer to him.b property action. With regard to the wife's personal estate and real chattels The husthat are not in possession, but are immediately recoverable by band acaction at law or suit in equity, and which are denominated quires a choses in action; such as debts owing to her, obligations, conqualified tracts, arrears of rent, legacies, money in the funds, &c., mar- in his riage is only a qualified gift of them to the husband, viz., upon wife's condition that he reduce them into possession during its contin- choses in uance; for if he happen to die before his wife without having reduced such property into possession, she, and not his personal representatives will be entitled to them. But if the husband survive his wife, then he, as her administrator, will be entitled to all her personal estate which continued in action, or unrecovered at her death. And although he die before all such property be recovered, yet his next of kin will be entitled to it in equity.d session. *1084 As to what will be such a reduction into possession by the Reduction husband, of the wife's choses in action, as will defeat the wife's into pos*right to them by survivorship, it may be observed, that a mere intention to reduce such choses in action into possession will not be sufficient. The acts to effect that purpose must be such as to change the property in them, or in other words, must be something to divest the wife's right, and to make that of the husband absolute; such as a judgment recovered in an action by him alone, or an award of execution upon a judgment recovered by him and his wife, or receipt of the money, or a decree in equity for payment of the money to him, or to be applied to his use. Therefore, a mere appropriation by the husband of a legacy left to his wife, by bequeathing it to his wife for life and afterwards among his children, has been held to be insufficient to change the property, for it was a chose in action belonging to the wife which could not be recovered except through the medium of a suit in equity, to which she must have been a party.(1) So, a transfer of stock into the • Id. As to what acts of the husband will bar the wife's right of survivorship in such cases, see Roper, 168, et seq. Co. Litt. 351. See tit. Executors and Administrators, ante, 974. Betts v. Kimpton, 2 B. & Ad. 273. (22 Eng. C. L. 71.) Co. Litt. 351. Scawen v. Blunt, 7 Ves. 294. Stock is in the nature of a chose in action. Per Sir Wm. Grant, M. R., id. Betts v. Kimpton, 2 D. & Ad. 273. (22 Eng. C. L. 71.) Gaisford v. Bradley, 2 Ves. 675. Per Lord Tenterden, 2 B. & Àd. 452. (22 Eng. C. L. 119.) 1 Roper, 205. 1 Roll. Ab. 345. Co. Litt. 46, b. Heygate v. Annesley, Bro. C. C. 362. Blunt v. Bestland, 5 Ves. 515. See Houman v. Corrie, 2 Ves. 190. (1) ("With respect to legacies, I think they have been almost uniformly regarded as Nego wife's name, to which she became entitled during the marriage, So if a negotiable instrument, as a promissory note or bill of tiable in exchange, be given to the wife before or during the marriage; struments. the mere possession of it by the husband will not change the property in it so as to defeat her right by survivorship, unless he recovers upon it in his lifetime; for it is a chose in action. *1085 *So if a bond be given to the wife during the coverture. So where money was left in the hands of trustees for the benefit of the wife, and her husband made no disposition of it during his lifetime; it was held, that she was entitled to it by survivorship.5 Mode of a wife's title by survivorship. But there are other methods by law, besides actual reducdefeating tion into possession, by which the husband is allowed to exercise his legal right over his wife's choses in action, and to defeat her title by survivorship;-viz., by the disposition of her interest in such of them as are legally transferrable by assignment, without any distinction whether the interest be immediate or in remainder; and the passing and extinguishment of her interest in such of them as are not assignable by release. Thus, the husband acquires such an interest in the debts due to his wife as to enable him to release them, so as to bind her." So also he may release all rights accruing to her 'during the marriage. He may release a legacy left to her, although she die before the time of payment arrives. "When the wife has any right or duty which by possibility may happen to accrue during the marriage, the husband may by release discharge it; but where she has a right or duty, which by no possibility can accrue to her during the coverture, there the husband cannot release it."(1) a Wildman v. Wildman, 9 Ves. 174. • Wall v. Tomlinson, 16 Ves. 413. 1 Rop. 221. d Coats v. Stevens, 1 Y. & Coll. 66. Nash v. Nash, 2 Madd. 133. Richards v. Richards, 2 B. & Ad. 447. (22 Eng. C. L. 119.) In Hodges v. Beverly, Bunb. 118, and in Lightbourne v. Holyday, 2 Eq. C. Ab. 2 Mad. 135, n., it was held, that a promissory note given to a wife did not survive to her. See M'Neilage v. Holloway, 1 B. & A. 218, post, and Barlow v. Bishop, 1 East, 432. Coppin v. -— 2 P. Wms. 497. 1 Touchst. 333. Day v. Padrone, 2 M. & S. 396, n. 2 Roll. Ab. 210. i Anon. 2 Roll. 134. And see 10 Rep. 51, b. * Per Holt, C. J., 1 Salk. 327. 1 Com. 67. 1 Lord Raym. 515, 522. choses in action, and when given to a married woman will, unless received, released, or perhaps assigned for a valuable consideration by her husband, survive to her, upon his dying before her." Per Kennedy, J., in Wintercast v. Smith, 4 Rawle, 182.) (1) (Any disposition of a wife's chose in action which is substantially an assignment for i |