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Bat no chose in action accrued to a wife for her earnings, or for money lent or goods
sold by her, because her husband was entitled thereto. I Ch. PI., 19.

"But when the wife can be considered as the meritorious cause of an action; as if a
" bond or other contract under seal be made to her separately, or with her husband ; or,
"in the case of her personal labor, &c, if there be an express promise to her, or to her
"and her husband; she may join with him, or he may sue alone ; and it has been holden
"that she may join in all cases of an express promise to her." 1 Ch. PI., 20.

As to actions for a wife's land, and as to her earnings, see note 2, page 30.

c. That he alone could sue for personal property, capable of manual delivery, which
belonged to her at the time of marriage and was not then in adverse possession, or a right
to which accrued to her during coverture (1/./. M., 607; 4 B. M., 525 ; and see 3 Bibb,
246); or for consequential damages resulting to him from a tortious injury to her during
coverture ; as, loss of her society or of her assistance in his affairs, cost of medical attend-
ance, &c. (Bacoti's Abridgment, title Baron and Feme, letter K; 14 B. M., 204) : aliter, if
the injury caused her instantaneous death (14 B. M., 209; 11 Bush, 384). But see, now,
Gen. St., ch. 57, JJ I and 3.

d. That a wife can not in any case sue alone unless her husband be cwiUter mortuus or
transported for some crime, or there has been a divorce a mensa etthoro. 1 Ch. PI., 17.

e. In Thomas v. Harkness and vnfe, 13 Bush, 23, it was held that, if personal property
be conveyed to a trustee for the separate use of a married woman, upon the death of her
husband the trust ceases and the legal title vests in her ; and, consequently, she and her
subsequent husband can maintain an action at law for a conversion of the property.

/. A wife having assigned a note belonging to her at the time of marriage, it was
held that an action upon it, in the name of her assignee and herself, should be dismissed,
not absolutely, but without prejudice. 2 Met., 420.

Chapter 52, art. 2, }} $ and 6 of the General Statutes, and an amendatory act of March
*8t 1873, authorize courts of equity to empower a married woman to act as feme sole, if
her husband be confined in the penitentiary for an unexpired term of more than one year,
and upon several other grounds. It seems probable that a wife can not now sue alone



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30 PARTIES TO CIVIL ACTIONS. [TITLE m.

unless authorized to do so by a court of equity, or by \ 34 of the Code, or by some other
statute.

2. Under the Code and other statutes.

(1) As above suggested, note b, p. 29, a husband could, according to the common law,
sue alone for possession of his wife's land ; the reason for which was thus stated : " By
the marriage the husband does not become absolute proprietor "of the wife's inheritance;
he gains therein an inheritance, however, during her life ; he may receive the profits ; and,
if not in the possession, he may gain possession by entering on the land [that is, by suing
for possession] (2 Afar., 457 . That rule was probably abrogated by chapter 52, art. 2,
$ 1, of the General Statutes, which declares that " marriage shall give to the husband,
during the life of the wife, no estate or interest in her real estate . . . except the
use thereof, with the power to rent the real estate for not more than three years at a lime
and receive the rent."

(2) The common law rule as to a wife's earnings has been changed by act of April 11,
1873, which declares that " the wages and compensation of married women, for service
and labor performed by them, shall be free from the debts and control of their hus-
bands," &c.

(3) An act of May 15, 1886, gives to a wife a right to sue for damages for selling
liquor to her husband, if an inebriate.

(4) Chapter 52, art. 2, J 10, of the General Statutes declares that — "A married woman «
who shall come to this Commonwealth without her husband, he residing elsewhere, may
acquire property, contract, and bring and defend actions, as if she were an unmarried
woman," &c. ; and it was held that the statute applies to married women who came into the
State before its enactment as well as to those coming afterward (13 Bush, 122). That case
arose before the present Code took effect : query as to how far, if at all, said section of the
General Statutes has been affected by J 34 of this Code.

II. Actions against married women.

I. For torts.

"Actions for torts committed by a woman before marriage must be against husband and
"wife jointly; and for torts committed by the wife during coverture, as, for slander,
"assaults, enticing away or harboring the servant of another, &c, or for any forfeiture
" under a penal statute, she must also be jointly sued; and the plaintiff can not in the
"same action proceed also for slander, assault, or other tort committed by the husband
"alone; r»or can the husband and wife be sued jointly for the slander of both. But for
"assaults and other torts in which two persons may concur, the husband and wife may be
" sued jointly for the act of .both, and the acquittal of the husband will not preclude the
"plaintiff from recovering. Detinue can only be supported against the husband." 1 Ch.
//., 84, 85.

But, for the conversion of goods by a wife alone, or by her and her husband, the
plaintiff could maintain trover against both or against the husband alone (I Ch. PL t 85;
2 Dana, 238) ; though, in either case, the declaration should aver the conversion to have
been made to the use of the husband and not to that of both (2 Dana, 238) ; and for a
wrong perpetrated by a wife by order of her husband, or in his presence, he is generally
liable to be sued alone. 6 Bush, 685.

But a married woman can not be made a trespasser by construction ; and, consequently,
she can not be held responsible for advising a wrong, or for assenting to it after its perpe-
tration. 2 Dana, 240.

And, though a fraud committed by a married woman may vitiate a contract made by
her and authorize a rescission of it, or estop her from avoiding it ; yet she can not be held
liable for damages for committing a fraud with reference to a contract which she had no
legal capacity to make. 6 Dana, 229 ; 6 Bush, 684.



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CHAP, ni.] COVERTURE. 3 1

2. Upon contracts,

( I ) As to a married woman's separate estate.

Subsection I of J 34 declares that a married woman may be sued alone "in actions con-
cerning her separate property; " and such was the law before {$/./. M. t 230). But we
must look elsewhere to learn upon what contracts a cause of action arises against a married
woman "concerning her separate property."

Before the adoption of the Revised Statutes, a married woman, though she could not
make herself personally liable (15 B, M, % 327), might, by contract, express or implied,
make her separate estate liable to be subjected by a court of equity for the payment of
her debts (7 B, Af. 9 293; 10 Id,, 320; 13 Id., 381; 16 Id,, 482); and might convey her
equitable right thereto as if she were unmarried. $/*/• A/., 230.

But ch. 47, art. 4, §17, of the Revised Statutes declared that — "If real or personal
"estate be hereafter conveyed or devised for the separate use of a married woman, or for
" that of an unmarried woman to the exclusion of any husband she may thereafter have,
"she shall not alienate such estate with or without the consent of any husband she may
"have; but may do so, when it is a gift, by the consent of the donor or his personal
"representative.

"Such estates, heretofore created, shall not be sold or encumbered but by order of
"a court of equity, and only for the purpose of exchange and reinvestment, for the
" same use as that of the original conveyance or devise ; and the court shall see that the
"exchange or- reinvestment is properly made."

And it was held, in strict accordance with the language of the statute, that a married
woman could not " encumber " her separate estate, created before the adoption of the
Revised Statutes, by creating debts not authorized by a court of equity. (Daniel v. Rodin-
son, 18 B, M.y 301.) But there was, perhaps, room for doubt as to her power thus to
encumber a separate estate created after the adoption of the Revised Statutes, because the
statute only declared that she should not "alienate" such estate without the consent of
the donor, &c. It was held, however, that she could not thus encumber such an estate,
for the reason that the statute applied to "indirect as well as direct alienations." Stacker
v. Whitlocky 3 Met, % 244; Hanly v. Downing, 4 Id,, 95 ; Lewis v. Harris, Id,, 356

The law standing thus, the legislature enacted that — "Separate estates and trust estates
" conveyed or devised to a married woman may be sold and conveyed in the same manner
"as if such estates had been conveyed or devised absolutely, if there be nothing in the
"deed or will under which they are held forbidding the same, and if the husband and
" trustee, if there be one, unite with the wife in the conveyance. But her interest shall
" be the same in the proceeds as it was in the estate." Gen, Statutes, ck. 52, art, 4, \ 17.

There is reason for believing that the legislature did not intend, by this statute, to
enable married women, by contracting debts, to encumber their separate estates and thus
"sell and convey" them indirectly; but merely intended: 1, to abolish the distinction
between separate estates created before and those created after the adoption of the Revised
Statutes; 2, to substitute the concurrence of husbands and trustees for orders of court
and the consent of donors ; and, 3, to dispense with the necessity of reinvestments under
judicial supervision.

It has, however, been held that this statute allows married women to encumber their
separate estates, by contracting debts, just as they could do before the adoption of the
Revised Statutes, with the qualification that the debts must be contracted for their own
benefit and not for that of others (Cardwellv. Perry, 82 Ky,, 129; Baird \ , Bruning, 84
^•>645). It seems impossible to reconcile the ruling in those cases, even as qualified,
with the cases of Stacker v. Whitlock, Hanly v. Downing, and Lewis v. Harris, above cited ;
for there is no substantial difference between the word "alienate" and the words "sell
and convey :" or with the object of the legislature in requiring husbands and trustees to
join with married women in conveying their separate estates : or with the provision that,



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32 PARTIES TO CIVIL ACTIONS. [TITLE III.

upon such conveyance being made, the married woman's "interest shall be the same in
the proceeds as it was in the estate;" for, upon a judicial sale of her property, for pay-
ment of her debts, the proceeds go to her creditors, and she loses her estate without the
concurrence of either husband or trustee : or with the decisions in Hirschman v. Brashears,
79 Ay., 258; Magillv.Merc. Trust Co., 81 Ay., 129; and Hounshellv. C. F. Ins. Co., I/L t
304 ; in which it was held that, though a wife's separate estate may be mortgaged for her
•own benefit, it can not be mortgaged for that of her husband ; because, under the statutes,
her interest in the proceeds shall be the same as it was in the estate.

(2; As to a married woman* s contract for necessaries.

Ch. 52, art. 2, £ 2, of the General Statutes, declares that a wife's real estate shall be
liable for such debts contracted by her "on account of necessaries for herself or any
member of her family, her husband included, as shall be evidenced by writing signed by
her; " and that " the remedy may be against both or against her alone."

a. As to what constitutes "necessaries," see notes to ch. 52, art. 2, {2, of Bullitt end
Feland's General Statutes.

b. As the statute only creates a charge on the wife's property, it seems clear that she
should be sued in equity, and that no personal judgment can be rendered against her.

c. The plaintiff should state facts showing that the debt was contracted for •« neces-
saries ; " and a married woman is not estopped, by her written acknowledgment that it was
contracted for necessaries, from showing by parol evidence, what was the real transaction.
5 Busk, 396; 7 Id., 509.

d. This statute relates, only, to the wife's general property (7 Bush,, 509) ; but it seems
•clear that, according to the decisions in Baird v. Bruning, and Card-well v. Perry, above
-cited, her separate property is chargeable with debts contracted by her for necessaries.
See Marshall v. Miller, 3 Met., 333.

(3) As to contracts of married women generally.

It seems needless to cite, here, authorities to prove that generally a married woman
can not bind herself, personally, by an executory contract, although it be contained in an
executed contract which she has power to make — as her covenant to warrant title, in a deed
conveying her land — unless she be authorized to act as an unmarried woman by some
statute, or by an order of court pursuant to a statute : as to which see General Statutes,
ch. 52, art. 2, §§ 5 and 6, and amendatory act of March 28, 1873 ; and \ 10 of same article,
and suggestion with regard thereto, ante, note (4) page 30.

But in Gibson v. Sublett, 82 Ky., 596, it was held that a married woman's land in this
State, being her general property, could be subjected for payment of a note executed in
Louisiana, where she resided, though it was not given for necessaries—such note being
obligatory upon her according to the law of that State ; and it would seem from the
reasoning of the court that the plaintiff would have been entitled to a personal judgment
against her if he had insisted thereon.

(4) As to actions on contracts made by the wife before marriage.

In such actions it was necessary to join the husband and wife as defendants (1 Ch. Pi.,
45). But he was only contingently liable on such contracts; the contingency depending,
not on his reception of property by reason of the marriage, but on the obtention of judg-
ment against him during the life of his wife; and that rule applied in equity as well as at
law (4/./. M., 215; 9 B. M., 500; 10 Id., 412) ; and, if the husband died before action
brought, his widow and not his representatives could be sued on the contract (Wood\.
Chapman, I Campbell, 189) : consequently, I, in an action against husband and wife on
such contract, it was not necessary for the plaintiff to allege reception of property by the
husband ; 2, if he died pendente lite, the action continued as to her and could not be
revived against his representatives (7 Mon., 179) ; and, 3, if she died pendente lite, the action
abated as to him (1 Ch. PI., 47), but could be revived against her administrator under act
•of 1801. M. & B., 86; and see Code, J 500, subs. 3, and notes thereto.



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•CHAP. Ill*] PERSONS UNDER DISABILITY GENERALLY. 33



Chapter 52, art. 2, §4, of the General Statutes (substantially re-enacting $3, art. 2, ch.
47, of the Revised Statutes), declares that *'the husband shall not be liable for any debt
or responsibility of the wife contracted or incurred before marriage, except to the amount
■or value of anything he may receive by her independent of real estate." And it was held
that, in an action on a contract made by a wife before marriage: 1, she and her husband
must be sued jointly ; 2, the plaintiff need not allege that the husband has received prop-
-erty by his wife; and, 3, in the absence of such allegation, a personal judgment against
the husband is erroneous, but the plaintiff is entitled to a judgment against him "to be
levied only on property that came to him by his wife, or that might thereafter come." 1
Met., 68; 1 Duv., 21 ; and see 9 B. Af. t 502.

There has been no decision, I believe, as to the effect of said statute upon the old
rule concerning the cessation of the husband's liability : but, though the statute declares,
not that he shall be liable to the extent of property received through his wife, but that
he shall not be liable except to that extent, it seems probable that, in equity at any rate,
he or his representatives should be held liable to that extent, in any event, notwithstanding
-said old rule.

It seems unnecessary to discuss the common law rules as to suing a wife as executrix or
administratrix, as she can not now act as such. G. S., ch. 39, art. 2, § 16.

(e) Action or defence by deserted wife.

1. If a husband desert his wife, she may sue in his name without his consent.- If they
join in the action, and it be dismissed as to the husband, on the defendant's motion, the
wife may prosecute it in her own name. 3 Bush, 132.

2. Husband's insolvency, failure to provide for his family, and habitual drunkenness,
constitute desertion according to the Code. 1 Duv., 302.

(/) Proceedings upon marriage of a female party to an action.

1. The mere suggestion of the marriage of female parties to an action is all that is
necessary to enable the court to make their husbands parties. Dickinson, <5rV., v. Trout,
&c, 8 Bush, 443.

2. It was held, under the Code of 1854, that an infant female plaintiff, having married
an infant, pendente lite, the court properly entered him upon the record as a co-plaintiff,
and allowed the action to proceed in the name of her next friend, as the friend of both.
11 Busk, 677.

3. Observe that this Code ($35, 36), unlike the Code of 1854, relieves married
women from the disability of infancy, as to either bringing or defending actions.

ARTICLE II.

OTHER PERSONS UNDER DISABILITY.

\ 35. Infants, prisoners, and persons of unsound mind, actions by.
2 36. defence by.

§ 35 [53» 58]. Excepting married women —

1. The action of a person who is under disability must be brought
by his guardian, curator, or committee, if he have one residing in this
State, unless it be against his guardian, curator, or committee ; or unless
said guardian, curator, or committee refuse to sue, in which case he
must be made a defendant.

2. The action of an adult, who is imprisoned in or out of this State,
and.who has no curator residing herein, or his action against his curator,
may be brought by him, or, with his consent, by his next friend.



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34 PARTIES TO CIVIL ACTIONS. [TITLE IIL

— . — . — . — . — «

3. The action of an infant, or of a person of unsound mind, who
resides in this State, and who has no guardian, curator, or committee
residing herein, or whose guardian, curator, or committee refuses to
sue, or his action against his guardian, curator, or committee may be
brought by his next friend.

4. The action of an infant, or of a person of unsound mind who
resides in a foreign country, and who has a guardian, curator, or com-
mittee residing therein, may be brought by such guardian, .curator, or
committee, or by his next friend.

Actions by infants.

'• i 53 of the Code of 1854, differing from \ 35 of this Code, declared that— :

"The action of an infant must be brought by his guardian or next friend. Any person
"may bring the action of an infant as his next friend ; but the court has power to dismiss
" it, if it is not for the benefit of the infant, or to substitute the guardian of the infant,
*« or another person, as the next friend ; " and, it was held that the power given to the
court, by the statute, either to dismiss the action on the ground that it was not for the
benefit of the infant, or to authorize a next friend to prosecute it, did not apply to an
action brought by the guardian ; and that the court had no power to do either in an action
brought by him, unless it appeared that his interest was adverse to the infant, or that he
was manifestly derelict in his duty. Walker v. Smyser's exr*s % 80 Ky. t 632 to 635.

And, a fortiori, that ruling is right under the present Code : see Miller v. Cabell, 81
Ky. % 178.

2. As to the rights of guardians to sue in their own names, see note (b) to \ 21.

§ 36 [55, 60, 63]. Defences of infants. — Excepting married women,
if a defendant, who is under disability and who is summoned in this
State, have a defence —

1. That of an infant or person of unsound mind must be made by
his guardian or committee, or by a guardian ad litem (a).

2. That of an adult prisoner in this or any other State must be made by
his curator or by an attorney employed by him, or by a guardian ad litem.

3. No judgment shall be rendered against an infant — other than a
feme covert — nor against a person of unsound mind, who is summoned
in this State, until the regular guardian, or committee, or guardian ad
litem, of such defendant, shall have made defence, or have filed a report
stating, that, after a careful examination of the case, he is unable to
make defence (6>). His report, that he can not make a defence, must be
filed on or before the day for making defence, unless, for cause shown,
the court extend the time ; and failure to file such report, as required
hereby, or by the court, shall be punished as a contempt

(a) 1. A guardian should be required to defend an infant-defendant in a bastardy-case.
4 Met, 70.

2. Action should not be dismissed because the plaintiff has failed to have a guardian
ad litem appointed; the court should make the appointment, though the plaintiff may have
failed to move therefor. 9 Bush, 498 to 503.



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CHAP. III.] GENERAL PROVISIONS AS TO PERSONS UNDER DISABILITY. 35

3. An infant who becomes of age pendente lite may answer for himself, though his guar-
dian may have answered for him. 1 Met., 602.

4- As to appointment of guardian ad litem fox infants summoned in this State (to whom
alone \ 36 applies), see § 38 and notes.

5. As to defending infants who are constructively summoned, see J 59 and notes.

6. As to sales of real estate of infants, see title 10, ch. 14, of Code, and notes thereto.

7. For distinctions between infant-plaintiffs and infant-defendants, see \ 116-2, and
notes thereto.

(6) Rendering judgment before defence or report is a "clerical misprision" (§517);
and the judgment is not void. 5 Bush, 25 ; 9 Id., 125.



ARTICLE III.

GENERAL PROVISIONS CONCERNING PERSONS UNDER DISABILITY.

{ 37-1. Next friend, who may sue as.

2. &c, liability of, for costs.

$ 38. Guardian ad litem, appointment, duties and compensation of.

§ 37- l [S3» 58]- No person shall sue as next friend unless he reside
in this State and be free from disability, nor unless he file his own
affidavit showing his right to sue as next friend according to the
provisions of this chapter.

2 [54, 59]. A guardian, curator, committee, or next friend, who
brings or prosecutes an action for a person who is under disability, is
liable for the costs which accrue during his conduct of the action, unless
he be allowed to sue in forma pauperis, by an order of the court, or by
an order of the judge thereof during vacation.

If both the infant and his next friend be insolvent, the court may allow the action
to be brought in forma pauperis, 12 Bush, 125.

§ 38. Appointment, &c, of guardian ad litem. — i. No appointment
of a guardian ad litem shall be made until the defendant is summoned,
or until a person is summoned for him, as is authorized by § 52 (a);
nor until an affidavit of the plaintiff, or of his attorney, be filed in court,
or with the clerk, or presented to the judge during vacation, showing
that the defendant has no guardian, curator, nor committee, residing
in this State, known to the affiant (d).

2 [56, 60, 61]. A guardian ad litem must be a regular, practicing
attorney of the court ; and may be appointed by the court, or the judge
thereof, whether a guardian, curator, or committee appear for the
defendant or not (c) ; or by the clerk of the court, during vacation, if
the affidavit ipentioned in subsection 1 of this section be filed. The
guardian ad litem may be appointed, upon the motion of the plaintiff,
or of any friend of the defendant ; but neither the plaintiff nor his
attorney shall be appointed, nor be permitted to suggest the name of

3



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36 PARTIES TO CIVIL ACTIONS. [TITLE III.

the proposed guardian ad litem; and the court or judge may change the
guardian so appointed whenever the interest of the infant may appear
to require such change.

3. It shall be the duty of the guardian ad litem to attend properly
to the preparation of the case (d) ; and in an ordinary action he may
cause as many witnesses to be subpoenaed as he may think proper,
subject to the control of the court ; and in an equitable action he may



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