By the" common .aw, a husband and wife could not contract with each other, and our recent statutes relating tc *348the property and rights of married women have made no change in this respect. Lord v. Parker, 3 Allen, 129. Edwards v. Stevens, Ib. 315. Ingham v. White, 4 Allen, 412. In the case of Slawson v. Loring, 5 Allen, 340, the remark of the court that the title to the note passed to the wife by the indorsement of the husband during coverture was not intended to imply that a husband could make a valid contract of indorsement with his wife. The remark is to be taken in connection with the whole case, by which it appeared that she acted merely as his agent, and that by the indorsement to her, and by her to Dupee, Beck & Sayles, it was intended that she should be a mere conduit in passing the title of the note to them, for the benefit of the plaintiff, and as his agent, she never pretending to have any interest in the transaction.
But in the present case the husband, being the payee of the note, indorsed it, and delivered it to his wife as a present. It remained his note in her hands as completely as ever, and her possession was his possession. This was in 1851 or 1852; and when his assignment in insolvency was made in 1853, the legal title to the note passed thereby to his assignee. Smith v. Chandler, 3 Gray, 392. By the case last cited it is decided that if the note had been made payable to the wife, the assignment would constitute a valid defence to the action, if the assignee should claim the note. If he had knowledge of its existence he might not be obliged to claim it; and if he declined to do so, the insolvency might not be a valid defence. Hallett v. Fowler, 8 Allen, 93. But this case is different. It does not appear that the assignee had knowledge of the existence of the note in suit, and he or any new assignee to be appointed in the case has the .egal right to collect it. As a general rule, the defendant cannot set up a title in a third person, in defence to an action upon a ■iote like this, which the plaintiff holds and produces in court, there being no fraud proved. Fogg v. Willcutt, 1 Cush. 300. The plaintiff has the title against all persons except the assignee, and may enforce it if the assignee does not intervene. Clark v Calvert, 3 Moore, 96. But if the plaintiff and her husband concealed all knowledge of the existence of the note from tb* *349assignee, he could not have assented to their retaining the possession of it. The legal title was in him, and their possession gave them no more title to the note than if he had lost it, and they held it as mere finders. Certainly they could have no better title than if they were his depositories, and as such they could not maintain an action upon the note. Sherwood v. Roys, 14 Pick. 173. In order to maintain this action as administratrix the plaintiff must satisfy the jury that her husband held the note either as trustee of the assignee or as his own property. He might hold it as his own if the assignee, with knowledge of its existence,- declined to claim it. But if it has been secretly withheld from the assignee, it has been held fraudulently.
Exceptions sustained.