TIFFS. of insol vency. to the assignees of the insolvent's rights and property, have been already I. PLAINmentioned (u). Certain articles are to be excepted from the assignment, namely, "wearing apparel, bedding, and other such necessaries (x) of the in- 7. In case solvent and his family, and his working tools and implements, not exceeding in the whole the value of £20." As to the excepted articles, the insolvent retains his rights and remedies (175). It seems that an insolvent may maintain an action for injury to, or conversion of, chattels which he acquires after the petition, though before his discharge, and which are in his possession; provided the assignees do not interfere (y). But with regard to property acquired *before the petition, and which passes by the assignment, it appears [83] that the insolvent cannot sue, although the assignees do not interpose (z). The rules upon this subject appear to be analogous to those which prevail in the case of bankruptcy (a). With regard to remedies for personal torts, as they do not appear to pass to the insolvent's assignee, it would seem he retains the right of action. case of marriage. The wife having no legal interest in the person or property of her husband, 8thly. in cannot in general join with him in any action for an injury to them (b), except in an action for a joint malicious prosecution of both, in which they may join in respect of the injury to both, or the husband may sue alone for the injury to himself and expenses of defence (c). For injuries to the person, or to the personal or real property of the wife, As regards injuries to committed before the marriage, when the cause of action would survive to the the person. wife, she must join in the action, and if she die before judgment therein it will abate (d) (176). But in detinue to recover personal chattels of the wife, in the possession of the defendant before the marriage, perhaps the husband must sue alone, because the law transfers the property to him, and the wife has no interest (e). In detinue for charters of the wife's inheritance, they may join, on account of the continuing interest of the wife in the estate to which they relate (ƒ). When an injury is committed to the person of the wife during coverture, by battery, slander, &c., the wife cannot sue alone in any case (g); and the hus (175) { Although the assignment of an insolvent debtor passes the legal estate in his lands, yet a trust results by operation of law, which, as soon as the debts are satisfied, entitles him to the possession against his assignees, et a multo fortiori against a stranger, against whom he may maintain ejectment in his own name. Ross v. M’Junkin, 14 Serg. & Rawle, 365. } (176) Stroop et ux. v. Swarts, 12 Serg. & Rawle, 76. VOL. I. 11 ! TIFFS. of mar riage. 1. PLAIN band and wife must join, if the action be brought for the personal suffering or injury to the wife, and in such case the declaration ought to conclude to their 8. In case damage, and not to that of the husband alone; *for the damages will survive to the wife if the husband die before they are recovered (h) (177). Care must be taken not to include in the declaration by the husband and wife any statement of a cause of action for which the husband alone ought to sue (178); therefore, after stating the injury to the wife, the declaration ought not to proceed to state any loss of assistance, or expenses sustained in curing her (i). If the battery, imprisonment, or malicious prosecution of the wife, deprive the husband for any time of her company or assistance, or occasion him expense, he may and ought to sue separately for such consequential injuries (k); and he may in the same action proceed for a battery or other injury to himself (1). Of course the husband must sue alone for criminal conversation with his wife. For words spoken of the wife not actionable of themselves, but which occasion some special damage to the husband, he must sue alone (m). As to personal pro perty. With respect to personal property, when the cause of action had only its inception before the marriage but its completion afterwards: as in the case of trover before marriage, and conversion during it, or of rent due before marriage, and a rescue afterwards, the husband and wife may join, or they may sever in trover or trespass (n). It seems that in detinue the husband should sue alone (o). When the cause of action has its inception as well as comple-. tion after the marriage, the husband must sue alone, the legal interest in personalty being vested by the marriage in him (p); and therefore a declaration in trover at the suit of husband and wife, should state that the wife was pos sessed before the marriage, or held the goods with him in her character of executrix; and if it be merely stated that the husband and wife were possessed, the defendant may demur: for the possession of the wife is in law the possession [*85] of the husband, and the *property vests in him exclusively (q). The same rule prevails in replevin; but if the husband and wife join as plaintiffs in that action, although the declaration is bad on demurrer, if no special cause for joining her be specifically shown therein (r); yet, if the defendant, instead of demurring, avow the taking, it will, after verdict, be intended, (if the declaration show nothing to the contrary,) that the taking was before the coverture, and that the plaintiffs then had a joint property; or that the wife held the goods as executrix; in either of which cases she might be joined (8). Though the (h) 1 Sid. 346, 386; Ld. Raym. 1208; Com. Dig. Bar. & Feme, V.; Pleader, 2 A. 9; 3 Bla. Com. 140; 1 Salk. 111; Yelv. 89; 2 Keb. 387, pl. 63; Freem. 224. (i) 1 Salk. 119; Com. Dig. Pleader, 2 A. 1. (k) 3 Bla. Com. 140; Cro. Jac. 538; 1 Stra. 61; 2 Stra. 977; Com. Dig. Bar. & Feme, W. (1) Cro. Jac. 501; 1 Salk. 119; Selw. N. P. 286, 5th edit.; Year Book, 9 Edw. 4, 51. (m) 1 Sid. 346; 2 Keb. 387, pl. 63; 1 Lev. 140; 3 Mod. 120; 1 Salk. 119. (n) 2 Saund. 47 h.; Salk. 114; 2 Lev. 107; Com. Dig. Bar. & Feme, X.; Bac. Ab. Bar. & Feme, K. (0) Ante, 83; Bac. Ab. Detinue; Bul. N. P. 53. (p) 2 Saund. 47 h. i.; Salk. 114, 119; 2 Bla. Rep. 1236; 2 C. & P. 34. (q) 2 Saund. 47 i.; 1 Salk. 114; Com. Dig. Pleader, 2 A. 1. (r) 2 New Rep. 405; see 7 Taunt. 72, replevin by the wife only. (s) Bourn and Wife v. Mattaire, Bul. N. P. 53; Selw. N. P. Bar. & Feme, III. 6th edit. 298; Com. Dig. Pleader, 3 K. 10; see 2 New Rep. 407. (177) But if the wife die after judgment, the judgment survives to the husband. Stroop et ux. v. Swarts, 12 Serg. & Rawle, 76. (178) Lewis et ux. o. Babcock, 18 Johns. Rep. 443. TIFFS. of mar wife may join in trespass for cutting down corn upon her land, yet she cannot I. PLAINfor carrying it away (t). However, a feme covert executrix may and ought to join with her husband; the declaration stating her interest, and showing that 8. In case she sues in autre droit (u). And there are some cases in which, though the riage. produce of the wife's labor be the property of the husband, yet in respect of her being the meritorious cause of action, she may be joined, as in the case of the dippers at Tunbridge Wells (x). In real actions for the recovery of the land of the wife, and in a writ of waste thereto, the husband and wife must join (y). But where the action is merely for the recovery of damages to the land or other real property of the wife during the coverture; or for a tort, which prejudices a remedy by husband and wife, as in the case of quare impedit, a rescue, &c. the husband may sue alone (z), or the wife may be joined (a); her interest in the land being stated in the declaration. But a demand for removal of personal property, as corn or grass when severed from the land, ought not, in the latter case, to be included, because, as we have seen, the entire interest in personalty is vested in the husband (b) (179). With res pect to real property. *If the husband survive, he may maintain an action of trespass, &c. for any [86] injury in regard to the person or property of the wife, for which he might have sued alone during the coverture. Thus, he might maintain an action after his wife's death for any battery or personal tort to her, which occasioned him particular injury; as the loss of her society and assistance in his domestic affairs; or a pecuniary expense (c); or for any injury to the land of the wife when living (d). If the wife die pending an action by her husband and herself for any tort committed either before or during coverture, and to which action she is a necessary party, the suit will abate (e). If the wife survive, any action for a tort committed to her personally, or to her goods or real property before marriage, or to her personal or real property during coverture, will survive to her (ƒ); and she may include in the declaration in such action counts for wrongs committed after her husband's death (g). Conse The consequences of a mistake in the proper parties in the case of husband quences of and wife, may be collected from the preceding observations, and seem to be mis-joinnearly the same in actions in form ex delicto as in those ex contractu (h). If der or nonjoinder. the wife be improperly joined in the action, and the objection appear from the declaration, the defendant may in general demur, move in arrest of judgment, (1) 2 Wils. 424; Cro. Eliz. 133; Salk.119. (u) Salk. 114; Wentw. Exec. 207; Bro. Bar. & Feme, pl. 85. Bourn v. Mattaire, ante, note (s). (z) 2 Wils. 414, 424; Com. Dig. Bar. & Feme, X.; ante, 75. (y) 1 Bulst. 21; 7 H. 4, 15 a.; 3 H. 6, 53; Com. Dig. Bar. & Feme, V. Wife must join in an ejectione firma, though ejection after marriage, Plowd. 418. (z) Bro. Bar. & Feme, pl. 16, 23, 41; Selw. N. P. 291, 5th ed.; 295, 6th ed.; Com. Dig. Bar. & Feme, X. (a) Com. Dig. Bar. & Feme, X.; 2 Wils. (b) Ante, 82, 83; 1 Salk. 119, note (b). (d) Com. Dig. Bar. & Feme, Z. (e) Freem. 225; Yelv. 89; 4 Taunt. 884. (f) Rep. temp. Hardw. 398, 399; Freem. 224; Palm. 313. (g) Palm. 313; Com. Dig. Bar. & Feme, 2 A. (h) Ante, 37, 68; 3 T. R. 631. (179) Husband and wife cannot maintain a joint action for a penalty given by statute. (Semble.) Hill and wife v. Davis, 4 Mass. Rep. 137, TIFFS. of mar riage. 1. PLAIN or support a writ of error (i); though we have seen that after verdict the mistake may sometimes be aided by intendment (k)(180). If the husband 7. In case sue alone when the wife ought to be joined either in her own right or in autre droit, he will be nonsuited; for though in general the non-joinder of a party as a co-plaintiff in an action for a tort can only be pleaded in abatement; yet that rule only applies in those cases in which the party suing had some legal interest in his own right in the property affected. A husband has, independently of his wife, no legal interest or cause of action whatever for injuries to her, or her property, in those instances in which it is necessary to join her as a plaintiff in an action. [*87] parties, and with reference *II. DEFENDANTS. II. DEFEN- In personal or mixed actions, in form ex delicto, the person committing the DANTS. injury, either by himself or his agent, is in general to be made the defendant; 1st. As be- but real actions can only be supported against the claimant of the freehold (1). tween the The general rule is, that all persons are liable to be sued for their own tortious original acts, unconnected with, or in disaffirmance of, a contract. Therefore, although an infant cannot in general be sued in an action in form ex contractu, except for necessaries, he is liable for all torts committed by him, as for slander, assaults, and batteries, &c. (m); and also in detinue for goods delivered to him for a purpose which he has failed to perform, and which goods he refuses to return (n) (181). But a plaintiff cannot in general, by changing his form of action, charge an infant for a breach of contract; as for the negligent or immoderate use of a horse, &c. (o) (182); nor can he be a trespasser by prior or subsequent assent, but only by his own act (p). A married woman is liable for torts actually committed by her, though she cannot be a trespasser to their lia bilily. Infants. Married women. (180) Lewis et ux. v. Babcock, 18 Johns. Rep. 443. (181) Per curiam, 3 Pick. Rep. 494. So an infant is liable in trover. Vasse v. Smith, 6 Cranch, 231. But by electing to bring trover, the plaintiff cannot convert a case founded on contract, and upon which an infant would not be liable, into a tort so as to charge him. Curtin v. Patton, 11 Serg. & Rawle, 310. See Schenck v. Strong, 1 South. Rep. 87. (182) But an infant who hires a horse to go to a place agreed on, but goes to another place in a different direction, is liable in trover for an unlawful conversion of the horse. Homer v. Thwing, 3 Pick. Rep. 492. Contra Schenck v. Strong, 1 South. Rep. 87. The court of errors in New York decided, that if an infant having an horse on hire, does a wilful and positive act, amounting to an election, on his part, to disaffirm the contract of hiring, the owner was entitled to the immediate possession. And where an infant drove a mare, which he had on hire, with such violence, as that she died of his cruel treatment; held, that though case would not lie, trespass might be maintained against him. Campbell v. Stakes, 2 Wend. R. 137. Independent of the contract of hiring, trespass would be the proper remedy. If the plaintiff orders in case, he affirms the contract of hiring, and the plea of infancy is a good defence to such an action; for he cannot affirm the contract, and at the same time, by alleging a tortious breach thereof, deprive the defendant of his plea of infancy, ib. by prior or subsequent assent (q). And although a lunatic is not punishable II. DEFENcriminally, he is liable to a civil action for any tort he may commit (r)(183). DANTS. 1. Who liable. Lunatics. With regard to the liability of corporations, it is a clear general rule that they are liable to be sued as such in case or trover for any torts they may Corporacause to be committed (s) (184). It has been laid down that a corporation tions. cannot be sued in its corporate capacity in trespass (t); but this position appears to be incorrect, for although a corporation cannot, as a corporate body, actually commit a trespass, yet they may order it to be done, and ought therefore to be responsible for the consequences (u). In these cases it is often very material to fix the corporation with liability, and to be entitled to redress from the corporate funds, rather than to be driven to a remedy against servants of the corporation. It seems that a corporation may be sued for a false return (x). *The inhabitants of a county are not a corporation, and therefore cannot be [*s8 ] sued by that description for an injury occasioned by the neglect to build a public bridge, or for any other injury arising from the neglect of the county at large (y). It is a general rule that corporations and incorporated companies may be Compasued in that character, for damages arising from the breach by them of a duty nies. imposed upon them by law (185). An individual who has suffered loss in consequence of the decay of sea walls, which a corporation is directed to repair, under the terms of a grant from the crown, conveying a borough, and pier or quay, with tolls, to the corporation, may sue the corporation for the recovery of damages (z)(186). The Bank of England are liable to an action if they improperly refuse to transfer stock (a); or are guilty of unreasonable delay in the passing of a power of attorney to transfer it (b); but they are not liable for refusing to pay dividends due upon stock if they have not received the dividends from government (c). (q) Id; post, 91, n. (p). (r) Hob. 134; 2 East, 104; Bac. Abr. Trespass, G., Idiot, E.; 2 Rol. Ab. 547, pl. 4, E. (s) 16 East, 6; Smith v. Birmingham Gas Light Company, 1 Adol. & El. 526. (t) Bro. Corporation, pl. 43; Bac. Ab. Trespass, E. 2; 8 East, 230. (u) See 16 East, 7, &c. per Lord Ellen (183) Ex parte Leighton, 14 Mass. R. 207. The institution of a suit against a lunatic, pending a proceeding in chancery and after lunacy found is improper. 5 Paige Ch. R. 489. (184) Trespass on the case lies against a corporate aggregate for a tort. Chesnut Hill Turnp. Co. v. Rutter, 4 Serg. & Rawle, 6. See the early English cases cited by Ch. Justice TILGHMAN, in his opinion. See also Gray v. The Portland Bank, 3 Mass. Rep. 364. } (185) An action on the case will lie against a corporation for the neglect of a corporate duty, as, for not repairing a creek as from time immemorial they had been used. Mayor of Lynn v. Turner, Cowp. 86. Riddle v. Proprietors, &c, 7 Mass. Rep. 169. Townsend v. Susquehannah Turnpike Company, 6 Johns. Rep. 90. Steele v. W. Lock Company, 2 Johns. Rep. 283. So, it will lie against them for the negligence of their subordinate agents, although not immediately employed by them. Matthews v. West London Water Works Company, 3 Campb. 403. Corporations created for their own benefit stand on the same ground in this respect as individuals, but quasi corporations created by the legis lature for purposes of public policy, are subject, by the common law, to an indictment for the neglect of duties enjoined on them, but are not liable to an action for any neglect unless the action be given by some statute. Mower v. Inhab, of Leicester, 9 Mass. Rep. (186) {Goshen T. Co. v. Sears, 7 Conn. Rep. 87. } |