(3). Where the husband is abroad and an alien enemy. (Deerly v. Duchess of Mazarine. 1 Salk. 116 & n (a); S. C. 1 Ld. Raym. 147.) (4). Where the husband is an alien, and has never been in Virginia. According to some authorities, the wife may bind herself by contract, and may sue alone wherever the husband is abroad and is an alien, although not an alien enemy, and although he has been here and professes an intention to return in a short time. (Walford v. Duchess de Pienne, 2 Esp. 554; Franks v. Same, Id. 588.) But these cases seem to have been overruled by later decisions, and the doctrine established as above stated-viz., that the husband, being abroad, must be either an alien enemy, or must never have been in this country. (Kay v. Duchesse de Pienne, 3 Campb. 123; Marshall v. Rutton, 8 T. R. 345; Gregory v. Paul, 15 Mass. 31.) (5). Where in Virginia there has been a decree of perpetual separation, superadded to a sentence of divorce a mensa, &c. (V. C. 1873, c. 105, § 13; Supra p. 353.) In reference to the first four of these exceptions, see 1 Bl. Com. 443, n (44); 1 Chit. Pl. 31-22; Bac. Abr. Bar. & F. (M); 1 Th. Co. Lit. 133-'4 & seq. & n's (P) and (Q); Hatchett v. Baddeley, 2 W. Bl. 1081; Lean v. Schutz, Id. 1199; Kay v. Duchesse de Pienne, 3 Camp. 123; Bogget v. Frier & al, 11 East. 301; Carrol v. Blencore, 4 Esp. 27. 5. Who should Sue when the Husband or Wife is Dead; W. C. 1. Who should Sue when the Husband survives. When the husband survives, he may sue, by virtue of his marital right, for anything to which he became absolutely entitled, as husband, during the coverture, and for chattels given, or otherwise accruing to the wife, in her own right, during coverture; but not for such as accrued to her in auter droit, as executrix, &c. So he may sue in trespass, for injury to the wife's land during coverture. But he cannot sue for arrears of rent accruing, due after the wife's death on a lease of her freehold lands, made by her before marriage, or by her and her husband, according to the statute (V. C. 1873, c. 117, § 4, 7), afterwards. (1 Bl. Com. 443, n (44); 2 do. 434-25; Bac. Abr. Bar. & F. (D); 1 Chit. Pl. 35; 3 Th. Co. Lit. 305 & seq., n's (L) and (M); Id. 308; Ankerstein v. Clarke, 4 T. R. 616; Aleberry v. Walby, 1 Stra. 230; Beaver v. Lane, 2 Mod. 217; Hill v. Saunders, 2 Bingh. (9 E. C. L.) 112.) Thus, the husband may sue for all chattels real of the wife (which belong to him by survivorship), for arrears of rent accrued during the coverture, or since its termination, in case of leases of the wife's terms for years, made by the husband alone during the coverture; or if made by the wife jointly with him, where the rent is reserved to the husband, for such sub-demise, and reservation of rent, is regarded as a disposition pro tanto, of the wife's original term, and the rent is the absolute property of the husband; and for arrears of rent, accrued during coverture, upon a lease of the wife's freehold lands, made by her before marriage, or by him afterwards. (1 Lom. Ex. 518-'19; 3 Th. Co. Lit. 259; Parry v. Hindle, 2 Taunt. 181.) And if the wife recover a judgment whilst sole, and after marriage the husband and wife sue out a scire facias, and have judgment and award of execution thereon, but before execution executed the wife die, the surviving husband is entitled to an action of debt, or a new scire facias thereupon, because the award of judgment and execution on the scire facias alters the property, and vests it in the husband. So, if pending an action by husband and wife, the wife die, the suit abates; but if they obtain judgment, he may, notwithstanding her subsequent death, issue an execution, or support an action of debt on such judgment. (1 Bl. Com. 443, n (44); Woodyer v. Gresham, 1 Salk. 116.) But for the choses in action of the wife, including all contracts made with her before marriage, and all bonds and notes payable to her, or to her and him, made during coverture, on which he has not elected to sue in his own name, the husband surviving can only maintain an action as her administrator, which, in the absence of any agreement to the contrary, he is always entitled to be, and also, after payment of her ante-nuptial debts, to be her sole distributee. (1 Bl. Com. 443, n (44); Toll. Ex'ors, 85, 116; Philliskirk v. Pluckwell, 2 M. & S. 396, n (b); V. C. 1873, c. 126, § 4; Id. c. 119, § 10 (cl. 3); Templeman v. Fauntleroy, 3 Rand. 434; Wade v. Boxley, 5 Leigh, 442; Thornton v. Winston, 4 Leigh, 158, 162.) It should be observed that, in England, by Statute 32 Hen. VIII, c. 37, § 3, it is provided that "husbands seised in right of their wives, in fee-tail or for life, of any rents or fee-farms, may distrain after the death of their wives, for arrears due in their life time,"-which was interpreted (in conjunction with another provision of the same statute), to allow the husband surviving to recover either by action or distress all arrears of rents on the wife's ante-nuptial leases of her free-hold lands, whether accruing before or during the coverture. statute, however, although long a part of our Code, was pretermitted at the revisal of 1849, so that the common law is supposed to be restored, whereby the husband can recover only the arrears accruing during coverture. (3 Th. Co. Lit. 255, &n (D); Id. 259; 1 Lom. Ex. 519.) 2. Who should sue when the Wife Survives. That The surviving wife may sue in respect of all chattels real which her husband had in her right, and did not dispose of during coverture. So also she may sue for arrears of rent which became due be fore the coverture, upon any ante-nuptial lease by her of her lands, whether freehold or leasehold; for arrears of rent which became due during coverture, for her leasehold (and perhaps her freehold) lands, where the rent is reserved to the husband and write (the rent being due in respect to her joint interest, which by the reservation is acknowledged as continuing); for arrears of rent falling due after the coverture ended, upon ante-nuptial leases of her lands, whether freehold or leasehold; or upon leases of her leaseholds made during marriage, when she, after the husband's death, elects to confirm them; for all choses in action to which she was entitled at the time of the marriage, and which the husband did not reduce into possession; for all choses in action to which she became entitled during the coverture, and which her husband did not reduce into possession; for all torts committed on her person or property before marriage, or on her person during marriage, for which no redress was obtained by her husband; and, lastly, for all rights of action accruing to her in auter droit, as executrix, &c., even against the husband's personal representative, her right of action being at common law only suspended during coverture. (1 Bl. Com. 443, n (44); 1 Chit. Pl. 36; 1 Bright's H. & Wife, 43 & seq.; 1 Lom. Ex'ors, 518-'19; Parry v. Hindle, 2 Taunt. 181; Philliskirk v. Pluckwell, 2 M. & S. 396, & n (b); The correct rule as to the survivorship of choses in action to the surviving wife, in case of contracts made with her during the coverture, is said to be this: Wherever the action is on an express contract with the wife, or with the husband and wife, the wife may be joined unless the consideration averred in the pleadings, or shown in the proof at the trial, be one in which the wife cannot be intended to have an interest; and in every such case, if the interest of the wife be not disaffirmed by the husband, by the appropriation of the cause of action to his sole use, by suing in his own name, the wife surviving will be entitled to it. (May v. Boisseau, 12 Leigh, 520; Philliskirk & ux v. Pluckwell, 2 M. & S. 393; Richards v. Richards, 2 B. & Ad. (22 E. C. L.) 447; Wells v. Nurse, 1 Ad. & El. (28 E. C. L.) 40.) 6. Consequences of making a Mistake in the proper Parties Plaintiff. Where a married woman ought to have joined her husband with her, but sues alone; or where she marrie after the suit is commenced, and before plea, the defendant can take the objection that she is a feme covert only by plea in abatement, and not by plea in bar, although the husband may sustain a writ of error. But when a feme covert improperly sues alone, having no legal right of action whatever, she will fail at the trial. And if she be improperly joined with her husband in an action, when he ought to sue alone, the defendant, if the objection appears on the face of the declaration, may deur, move in arrest of judgment, or reverse the judgment upon a writ of error; or if the objection does not appear on the face of the pleadings, the plaintiff will still be defeated at the trial, upon proving the facts. If, on the other hand, the husband sue alone, when the wife ought to be joined, either in her own right, or in auter droit, as executrix, &c., he will fail at the trial; or if the objection appear on the record, it will be fatal on demurrer, in arrest of judgment, or on writ of error. (1 Chit. Pl. 36-7, 86; Yard v. Ellard, 1 Salk. 119; S. C. 1 Ld. Raym. 368; Bidgood v. Way, 2 W. Bl. 1239.) 2h. Actions against Husband and Wife. The analysis of this branch of the enquiry will be the same as under the first head. Thus, it is proposed to consider, (1), Cases where husband and wife must be joined; (2), Cases where husband must sue alone; (3), Cases where the husband and wife may be jointly sued or not, at the election of the plaintiff; (4), Cases where the wife may be sued alone in courts of law; and (5), Who is to be sued in case of death of the husband or wife; W. C. 11. Cases where Husband and Wife must be joined. In general, a married woman cannot be sued in a court of law without her husband. They must, for the most part, be sued jointly for all causes of action, whether of contract or of tort, subsisting against the wife at the time of the marriage; also for all torts committed by her during the coverture; and for all causes of action against the wife as executrix or administratrix, arising out of a personal contract of her decedent. Hence, when a feme sole enters into any contract (e. g., a bond, promissory note, or other agreement), or commits any tort (such as assault, slander, &c.), and then marries, suit during the coverture must be brought against the husband and herself jointly; although where the husband, in respect of some new consideration, as forbearance, &c., expressly promises to perform the wife's ante-nuptial contracts, he may be sued alone on such an undertaking, or he and his wife may be sued jointly on the original demand. Hence, also, if the wife commits torts during the coverture, as by slander, libel, assault, &c., she and her husband must be joined in the action, as also for any forfeiture under a penal statute. It should be observed, however, that although both must be sued for her tort, it is not allowable to sue both as for a tort committed by both, unless it is really capable of being so committed. Thus, slander by husband and wife is impossible. He must be sued separately for the slander of which he is guilty, and both for her's. But they may unite in an assault and battery, or even in enticing away and harboring the servant of another, and therefore for those injuries a joint action lies against both. To this general doctrine, however, are these qualifications-namely: That the action of detinue cannot be supported but against the husband alone as long as the coverture lasts; and that for a conversion of chattels, alleged to be made by the husband and wife, the action of trover should in strictness be brought against him only, or at least that the conversion should not be alleged to have been to their use, but |