Imágenes de páginas

Opinion of the Court, per RAPALLO, J.


to the use of the husband. (Perry v. Diggs, Cro. Car., 494.) And it is said in 2 Saunders, 47,8, t, ed. of 1846, that where the wife before coverture had converted goods, if they remained in existence, and the husband refused to give them up on demand, this was a conversion by him for which an action would lie against him alone. But I apprehend it must be understood in this statement that the goods had come under the control of the husband, so that he could deliver them. All the authorities cited to show that, in actions of trover against husband and wife, the conversion should be alleged to be by the husband, are cases where the husband and wife have jointly committed the wrong, or the property has come to his possession. So much of the cause of action as founded upon the acquisition of property by the wrong-doer was against the husband alone. He could not convert property to the use of his wife; but she could aid him in taking it and enabling him to convert it to his own use.

The conversion was by the 'husband only and only to his use (Cro. Jac., 661; Cro. Car., 254, 494), and the action for the conversion might have been brought against the husband alone. (2 Wm. Saunders, 47, 8 and t.) But the action, so far as it is founded upon the wrong done to the plaintiff by depriving him of his property, lies against both husband and wife when both are guilty. Therefore trover may be brought against husband and wife where she was concerned. (Marshe's Case, 1 Leon., 312.) The conversion in such case is by the husband alone, but the action lies against both, because both were concerned in the trespass of taking them. (Bingham on Infancy and Coverture, 257, 258.) In the earlier cases cited, judgments in actions of trover against husband and wife for a joint conversion were reversed, because the declaration averred that the conversion was to their uses, instead of alleging it to the use of the husband; but in the later case of Keyworth v. Hill (3 Barn. & Ald., 685), a declaration in trover against husband and wife, averring that the defendants converted the property to their own use was held good after verdict, on the ground that trover would lie for a

Opinion of the Court, per RAPALLO, J.

temporary conversion by the husband and wife, where no property was acquired by the wrong-doer, as where it was destroyed, or passed over to another, and of this the wife might be guilty as well as the husband, and that after verdict it would be intended that the conversion was of that character.

In all these cases, it will be observed, the husband was alleged to have participated in the wrongful act. But a married woman might alone be guilty of a conversion, and, although the husband was a necessary party to the action, the allegation should be that she converted the property; and in such a case, on writ of error in the Exchequer Chamber, a plea that the defendants were not guilty was held, after verdict, to have tendered an immaterial issue, and that the issue should have been only that the wife was not guilty, and a repleader was ordered. (Coxe v. Cropwell, Cro. Jac., 5; Slater v. Franks, Hobart, 126.)

I have found no case in which the husband has been held individually liable as upon a conversion by him to his own use, where the property was wrongfully obtained by the wife, and he was not jointly concerned in the taking, or the goods did not actually come to his use. In the present case there was no evidence showing what became of the bonds after their delivery to the plaintiff's wife, or what disposition she made of them. It was not shown that they continued in her possession, or even that they remained in existence. She may have immediately passed them over to another, in which case there was no conversion to his use. (Keyworth v. Hill, 3 B. & Ald., 685; Cro. Jac., 5.) No facts were proven upon which, if the bonds had been the property of the defendants, an action for their conversion could have been maintained against the husband alone, under any of the authorities cited.

The ancient rules, to which reference has been made, governing actions for goods wrongfully obtained by a married woman, are founded upon the common-law doctrine that a married woman could not acquire or own personal property. How far they are applicable under the existing laws of this

Opinion of the Court, per RAPALLO, J.

State I have not deemed it necessary to discuss, as I am satisfied that even under the old law the evidence and findings would not establish a conversion of these bonds by the plaintiff, or any liability for them on his part other than that of being joined with his wife in an action for the tort committed by her. It is claimed, however, on behalf of the respondent, that the husband, being liable for the tort committed by his wife in fraudulently obtaining the bonds, he cannot maintain an action founded on such tort.

The unsoundness of this position consists in the assumption that the liability of the husband to be joined with his wife, in an action for her wrong, is equivalent to a guilty participation by him in that wrong, or is founded upon the idea that her act is considered as his. Such is not the nature of his liability. He is not joined as a defendant on the ground that her guilt is imputed to him, but because, so long as the marital relation continues, the wife is incapable of being sued alone (Capel v. Powell, 17 C. B. [N. S.], 744); and his liability continues only so long as the relation of marriage subsists. (Id.)

In trover against husband and wife for goods converted by the wife, the reason assigned for holding a plea that the defendants were not guilty to be bad, was that “no tort is supposed in the husband, and the issue should be only that she is not guilty.” (Coxe v. Cropell, Cro. Jac., 5; Slater v. Franks, Hobart, 126.)

If after the commission of a tort by a married woman she should be divorced, or the husband should die, the action could be brought against her alone, and if the death of the husband occurred pending an action against both it would survive against the wife. But if she should die before, or pending the action, it would not survive against the husband.

This could not be if her wrong were imputed to him, or he were in law unqualifiedly responsible for it.

But it is further contended that in this case the wife having obtained the bonds from the defendants by a fraud, and they being entitled to maintain an action against both hus


Opinion of the Court, per RAPALLO, J.

band and wife for this wrong, the same facts upon which the plaintiff relies to recover here would charge him in that action for the same amount, and that therefore to prevent circuity of action the law will bar a recovery by him.

We do not think that the present case falls within the principle of avoiding circuity of action to which the respondents refer in support of this claim. Where the circumstances are such that the defendant, if compelled to pay the demand of the plaintiff, would immediately be entitled to recover back from him the identical amount, it is well settled that to avoid circuity of action this cross liability will be allowed to operate as a defence. (Carr v. Stephens, 9 B. & C., 758; Simpson v. Swan, 3 Camp., 291; Cuckson v. Stones, 1 E. & E., 248; Schloss v. Heriot, 14 C. B. [N. S.], 64.)

But this rule can be invoked only when the parties opposed in interest use the same. (Walmesley v. Cooper, 11 A. & E., 216.) A covenant by the plaintiff not to sue the defendant may be set up in bar of the action, but a covenant by A. not to sue C. cannot be set up in bar of an action by A. & B against C. A liability of the plaintiff jointly with another cannot be set up as a bar to a claim due him individually, nor can a conditional or defeasible liability bar one which is absolute and unconditional. A liability of one in a representative capacity cannot be set up against a demand belonging to him in his own right. To bring the case within the common-law rule, the liability of each party must be the equivalent of that of the other. (15 C. B., 62 ; 16 C. B. [N. S.], 829; 2 H. & Norm., 793; 11 Exch., 831; Beecham v. Smith, E., B. & E., 442.)

It is very clear that in this case the liability of the plaintiff is very different in its nature and extent from that of the defendants. Their liability to him is absolute and unconditional. Should they die, it would survive against their personal representatives. Should the plaintiff die, it would survive in favor of his, but his cross liability would not survive against his representatives. The liability of the defendants is to the plaintiff alone. That of the plaintiff is only

Opinion of the Court, per RAPALLO, J.

that of being joined with his wife as defendant, and this only so long as the marital relations continue. He can in no event be sued alone. If the wife has any separate estate, or should acquire one with the proceeds of the bonds, the judgment might be enforced against such estate, to the discharge of the husband's. In case of his wife dying, or being divorced, before judgment, the plaintiff's liability to the defer.dants would cease while that of the defendants to the plaintiff would continue. To allow this defence would be equivalent to enforcing a right of action against the husband alone for a tort committe, wholly by the wife, which cannot be done.

We think that the evidence offered to prove that the order produced by the defendants was not in a simulated handwriting was properly rejected. The plaintiff had not introduced any evidence to show that it was in a simulated handwriting, but had testified to the fact that it was not written by him. It was incumbent upon the defendants to prove that the order was in the handwriting of the plaintiff; and we do not think that, as the evidence stood, the opinion of an expert, that the signature was not in a simulated hand, was competent for the purpose of establishing that it was the plaintiff's. In the cases cited (3 B. Ch., 325, and 17 Pick., 490), for the purpose of proving that a mark or signature was not genuine, evidence of experts was admitted, to show that the writing was simulated. The only case cited in which evidence was admitted to show that the writing was not simulated is that of The People v. Hewit (2 Park, Cr. Rep., 20), where on the trial of an indictment for forgery the prisoner was allowed to prove by an expert that the signature was not in a simulated hand. Whatever effect might be given to such evidence in a criminal trial for counterfeiting or forgery, as to which we express no opinion, we do not think it competent for the purpose of proving the genuineness of a signature against a party sought to be charged thereby,

« AnteriorContinuar »