ERROR TO MARION CIRCUIT COURT,

1st. Husband and wife are one m laws, and all compacts and agreements between them during coverture, are void at law. So of the agreement of Henry in this case, to permit his wife to make profit of his industry and the products of the farm. IstBlackstone’s Com. 442, 2d ib. 433; Co Sitt. 112 a, 187 b.

2d. Whatever may be the rights of the wife in equity to her earnings during coverture, they are at law the absolute property of the husband, and on his death pass to his administrator. 2d Bacon’s abiidgement, p. 27, and 8/ title “Baron & Feme.’’ D.; 3rd Bacon’s abrid, p 65, title ex’rs and adm’rs., 4 H.

3d. If Mrs Henry had any right to the money now in controversy, it was an equitable right, and as such cannot be interposed as a defence to the legal right of the adm’r. I.f any right,.she hasher remedy in equity andnotatlaw.

The foundation of this-action is an implied promise. To raise that implied promise, the plaintiff must prove that defendant has received money belonging to his intestate. Upon this evidence the law will imply the promise, unless the defendant cas show that she had a legal' or equitable right to retain it. Comyn on Contracts, 263, 268, or library edition, p. 316.

Money acquired by the wife during coverture, and held by her as her s eparate purse, with the consent of her husband, is her separate property, and she has an equitable right to retain it against her husband or his administrator. Slanning vs. Style, 3d Pelre Will. 337, 338; Graham vs. Londondery, 3d Atkins, 393, 394, 395, side page; Lucas V3. Lucas, 1st Atkins, 271, 272, side page; 1 Maddox Ch. 471, top page.

The equitable ownership of. the wife is a good defence in this form of action, money had, and received.

This defence is good at law; any defence will avail in this action which shows that the plaintiff is not entitled-, ex earn et bono, to the whole or any part of this demand. Comyn on Contracts, 266 or 316;.2d Burrow’s Rep. 1010; Moses vs. McFerlan; Dale vs. SolIett,4th Burrow’s p. 2134.

The very gist of this kind of action, is that the defendant upon the circumstances of the case, is obliged- by ike ties of mutual justice and equity to refund the money. 2d. Burrow’s-Rep. 1012.

A husband may make gifts to his wife, and deal with her, and permit her to retain her earnings. &c.; 2d Story’s equity, page 603, sect. 1375.

In the case of Slanning vs. Style, 3d Piere, Williams’ Rep. page 337, the wife was allowed not only to keep the earnings, recognised the dealings of husband and his wife, and.as he-submitted to borrow of his wife 100 pounds, admitted it to>be proved-against his estate.

The husband could not sue the wife at law, nor could his administrator bring suit against her for the same cause of action.

The wife can retain gifts against all but creditors.

Citation profile

How this case has been treated — in progress