Low v. Porter

Supreme Court of New Jersey

Low v. Porter

14 N.J.L. 516

DecidedNovember 15, 1834

StatusPublished

This text of 14 N.J.L. 516 (Low v. Porter) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Low v. Porter, 14 N.J.L. 516 (N.J. 1834).

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Opinion

The opinion of the court was delivered by

Hornblower, C. J.

This case is virtually decided by what was said in delivering the judgment of the court, in Story v. Baird, executor, page 262. In that case, it is true, the wife survived her husband; but if the doctrine contended for by the plaintiff’s counsel, namely, that her choses in action, vest absolutely in the husband, then the court were wrong in much that was said on that occasion. I have felt it due to the plaintiff’s counsel, to examine his authorities, and to look further into the matter. The result is a deeper conviction of the correctness of the opinion then delivered. The whole point decided in Barlow v. Bishop, 1 East. 432, and in 3 Espin. nisi prius cases, 266, was, that a married woman, during the life time of her husband, cannot by endorsement, or by any other mode of assignment, in her own name, pass away her promissory notes or other choses in action, so as to affect her husband’s interest in them. It is undoubtedly true, as Lord Mansfield said in that case, that “ the delivery of a note to the wife, vested the interest in the husband.’1’ By “the interest,” his lord ship undoubtedly meant the right to, and control over the wife’s choses in action, which the husband has during coverture; for [517]*517so long as they both live, his right is absolute and exclusive. This is precisely what was said by Buller, justice, in Rawlinson v. Stone, 1 Wils. Rep. 1, also cited by the plaintiffs counsel. The question in this case is not, whether the husband has an interest in, or a title to his wife’s choses in action; but whether if he does not reduce them to his own possession in her life time, or do some act equivalent thereto, they survive to him as a part of his own property, and go to his personal representatives. That they do not, is too well settled to be questioned at this day. The authorities cited in the case of Story v. Baird, are full and satisfactory on this point. Gulick, himself, after the death of his wife, could not have maintained an action on this note in his own name. Hé could only have sued for it as administrator of his wife, and consequently, his executor can maintain no action upon it. 4 Petersd. tit. Bar. & Feme p. 35, in note.

The judgment of the Common Pleas must be affirmed.

Cited in Snowhill v. Snowhill’s Exr., 1 Gr. Ch. 36.

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The opinion of the court was delivered by

Hornblower, C. J.

This case is virtually decided by what was said in delivering the judgment of the court, in Story v. Baird, executor, page 262. In that case, it is true, the wife survived her husband; but if the doctrine contended for by the plaintiff’s counsel, namely, that her choses in action, vest absolutely in the husband, then the court were wrong in much that was said on that occasion. I have felt it due to the plaintiff’s counsel, to examine his authorities, and to look further into the matter. The result is a deeper conviction of the correctness of the opinion then delivered. The whole point decided in Barlow v. Bishop, 1 East. 432, and in 3 Espin. nisi prius cases, 266, was, that a married woman, during the life time of her husband, cannot by endorsement, or by any other mode of assignment, in her own name, pass away her promissory notes or other choses in action, so as to affect her husband’s interest in them. It is undoubtedly true, as Lord Mansfield said in that case, that “ the delivery of a note to the wife, vested the interest in the husband.’1’ By “the interest,” his lord ship undoubtedly meant the right to, and control over the wife’s choses in action, which the husband has during coverture; for [517]*517so long as they both live, his right is absolute and exclusive. This is precisely what was said by Buller, justice, in Rawlinson v. Stone, 1 Wils. Rep. 1, also cited by the plaintiffs counsel. The question in this case is not, whether the husband has an interest in, or a title to his wife’s choses in action; but whether if he does not reduce them to his own possession in her life time, or do some act equivalent thereto, they survive to him as a part of his own property, and go to his personal representatives. That they do not, is too well settled to be questioned at this day. The authorities cited in the case of Story v. Baird, are full and satisfactory on this point. Gulick, himself, after the death of his wife, could not have maintained an action on this note in his own name. Hé could only have sued for it as administrator of his wife, and consequently, his executor can maintain no action upon it. 4 Petersd. tit. Bar. & Feme p. 35, in note.

The judgment of the Common Pleas must be affirmed.

Cited in Snowhill v. Snowhill’s Exr., 1 Gr. Ch. 36.

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Bluebook (online)

14 N.J.L. 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/low-v-porter-nj-1834.