[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 286 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 288 Where an obligation or contract is taken to the husband and wife, or to the wife alone, with the assent of the husband, the action survives to the wife, who is entitled to the proceeds, as against the heirs and personal representatives of the husband. This is the rule at law, at well as in equity, (Com. Dig. tit.Baron and Feme; Draper v. Jackson, 16 Mass. Rep. 483 to 486.) In these cases, the form of the security implies a design by the husband to benefit the wife, and the law will give effect to that intention where the interest of creditors is not affected.
The receipt of the 20th of October, 1838, executed by the defendants, declares "that the notes therein specified were received from Mrs. Root for collection, to be accounted for to her, or order, when collected." This engagement is evidence against the defendants, either that Mrs. Root had some interest in the securities delivered to them, in her own right; or that the contract was made by them, with her, with the knowledge and approbation of her husband. This presumption, I think, is strengthened by other evidence in the case; but it is enough that the referees have found in favor of the plaintiff. Their report, which is adopted by the supreme court, is conclusive as to the fact of the defendants' liability, unless they have erred in the admission or rejection of evidence. The offered evidence was properly rejected. Proof tending to show Root's agency and relation to these securities, and that in 1839 he gave directions about them, (which would be acting as owner,) was consistent with his approval and participation in the arrangement, made *Page 289 the year previous. The offer was not to prove that he repudiated that arrangement, or discharged the defendants from their agreement, either in writing or by parol, but to show by a letter that he acted as owner, not that he claimed to be owner of the securities in question. The substance of the various offers was merely to prove that he gave advice, or instructions, in reference to the demands. This would be acting as owner, while his conduct, at the same time, was precisely that which, from his knowledge of the securities and his relation to Mrs. Root, might have been expected, and therefore consistent with his continued acquiescence in the previous agreement. After their liability was established by competent evidence, the defendants must at least prove a release or discharge, or something equivalent, by the husband. The proposed evidence fell short of this, and it was not offered as a part of a chain of testimony reaching to that result.
I think the judgment should be affirmed.