the title to the property does not pass, and its value may be recovered in trover.'

Torts by Drunkards. The fact that a tort was committed while a defendant was intoxicated is no excuse whatever. This has been held in actions for slander. It is conceivable, however, that the amount of the recovery might be considerably af fected by a showing that the wrong was committed under such conditions that no one would have been likely to attach importance to the utterances.

*Torts Committed Under Duress. In general, one can- [*115] not excuse a tort by showing that he committed it under duress. In Tennessee, however, it has been decided that it is a good defense to show that a tort was committed under the orders of the defendant's military superior, which at the time he was compelled to obey.'

Torts of Married Women. Where husband and wife jointly commit a wrong, the action therefor is properly brought against the husband alone, for the whole may be assumed to be his act."

tical application. See the cases on this point collected in 1 Am. Lead. Cases, 260, et seq.

"But it by no means follows that because an infant may not be made liable for his contracts by changing the form of action to tort, that he shall not therefore be made liable er contractu, where he is in fact liable for his wrongful acts, and the law implies from them in all other cases the promise and the duty of making restitution. To extend to an infant the privilege of defeating his legal liability by setting up his infancy as s defense, not to the cause of action, but to the form in which it is declared upon, would not, we think, be a reasonable, conclusion from the acknowledged principles upon which the privilege of infancy is granted to him, and is not required by any of the rules regulating the forms of action. On the contrary, it would convert the shield into a sword."

Mathews . Cowan, 59 Ill. 341.

2 McKee o. Ingalls, 5 Ill. 30; Reed v. Harper, 25 Iowa, 87.

McKeel v. Bass, 5 Cold. 151; Waller v. Parker, 5 Cold. 476. In these cases the defendants were soldiers in the confederate army, and might, perhaps, have justified under the rules of war. Compare Mitchell v. Harmony, 13 How. 115. See Buron v. Denman, 2 Exch. 167, in which the trespass of the defendant in breaking up the barracoon of the plaintiff on the coast of Africa, and freeing his slaves, was held justified by the subsequent ratification of the act by the government, this being equivalent to a prior command.

4 Com. Dig. Baron & Feme. V.; 2 Saund. Pl. & Ev. 192; McKeowen v. Johnson, 1 McCord, 578; Cassin v. Delany, 38 N. Y. 178. The wife should not be made defendant in an action for the wrongful joint possession of a chattel by her and her husband. Longey v. Leach, 57 Vt. 377.

But "as a general rule, a married woman is answerable for her wrongful acts, including frauds, and she may be sued in respect of such acts jointly with her husband, or separately if she survives him. The liability is hers; though living with the husband, it must be enforced in an action against her and him, which, to charge him, must be brought to a conclusion during their joint lives." If she survives him, the suit may proceed against her separately. There is a presumption, however, corresponding to that which is made in the criminal law, that if a wrong is committed by the wife, in the presence of her husband, it must have been committed by his consent and under his influence, and, consequently, is his wrong rather than that of the wife, and should be redressed in a suit against him alone. But any such

presumption is liable to be overthrown by evidence. [116] "The true view is," says Mr. Bishop," "that when the

husband is present during the commission of a tort by the wife, whether himself actually participating in it or not, prima facie the wrong shall be deemed his alone; but both in civil and criminal causes, this prima facie case may be rebutted, and each of the two may be deemed, in law, the doer of the wrong, the same as though they were unmarried. Therefore, if husband

I WILLES J., Wright v. Leonard, 11 C. B. (N. 8.) 258, 266. If a divorce takes place between them, the husband is no longer liable for her previous torts. Capel v. Powell, 17 C. B. (N. 8.) 743. To justify the exemption of the wife from liability, the presence and command of the husband must concur. An offense by his direction but not in his presence, or in his presence but not by his direction is not within the rule which gives immunity to her. Hildreth v. Camp, 41 N. J. L. 306. On the other hand it is held in Ohio that the husband need not be present when the wife acts or know that the act was contemplated or that it has been committed. Holtz v. Dick, 42 Ohio St. 23. And in Arkansas, in a case where the husband was held for slander spoken in his presence the law is similarly laid down. Kosminsky . Goldberg, 44

Ark. 401. The husband is liable for his wife's slander. If uttered in his presence he alone should be made a party; if not, they should be sued jointly. Quick v. Miller, 103 Pa. St. 67.

2 Capel v. Powell, 17 C. B. (N. s.) 744; Smith v. Taylor, 11 Geo. 20, 22; Estill v. Fort, 2 Dana, 237; Hawk v. Harman, 5 Binn. 43.

3 Ball v. Bennett, 21 Ind. 427; Baker v. Young, 44 Ill. 42; Brazil v. Moran, 8 Minn. 236; Quick v. Miller, 103 Pa. St. 67; Kosminsky . Goldberg, 44 Ark. 401.

Miller v. Sweitzer, 22 Mich. 391; Cassin v. Delaney, 38 N. Y. 178. "Law of Married Women, Vol. 2, $258.

Citing Marshall v. Oakes, 51 Me. 308; Warner v. Moran, 60 Me. 227; The State v. Cleaves, 59 Me. 298; Carleton v. Haywood, 49 N. H, 314;

and wife join in a malicious prosecution, she being really an active party as well as he, she may be joined with him as defendant in an action to recover damages for it, though she performed no act in which he was not present concurring. And it is the same where they join in a battery." If the wife is the active party in a tort, the declaration will either count upon the tort as that of the wife alone, or as that of both husband and wife"; though, if the case be in trover, the conversion must be averred to be for the use of the husband. This was the common law rule; but where, by statute, the wife retains and acquires real and personal estate the same as a femme sole, no reason is perceived why she might not be charged with a conversion to her own use."

But the element of contract is as important here as in the law of infancy. The same reasons which would preclude the indirect redress of the infant's breach of contract, by [*117] treating it as a tort, will preclude the like redress in the case of the contract of a married woman. And here, also, we encounter the same difficulties when we undertake to draw the line of distinction between cases which are really in their substance, cases of contract, though a wrong may be involved, and cases in which a wrong stands apart from the contract.

Simmons v. Brown, 5 R. I. 299; Tobey . Smith, 15 Gray, 535. The husband and wife may be held jointly liable for a tort committed by her in his absence, if it is done at his instigation. Handy . Foley, 121 Mass. 259.

'Referring to Cassin v. Delaney, 38 N. Y. 178. See, also, Simmons v. Brown, 5 R. I. 299, and cases cited.

Citing Roadcap v. Sipe, 6 Grat. 213, and Drury . Dennis, Yelv. 106. See, also, Yeates v. Reed, 4 Blackf. 463; Estill v. Fort, 2 Dana, 237; Baker v. Young, 44 Ill. 42; Keyworth v. Hill, 3 B & A. 685; Vine v. Saunders, 4 Bing. (N. C.) 96.

3 Bishop, Law of Married Women, Vol. 2, § 259.

4 Estillo. Fort, 2 Dana, 237; Tobey . Smith, 15 Gray, 535; Kowing v. Manly, 49 N. Y. 192, 198; Shaw v.

The

Hallihan, 46 Vt. 389; S. C. 14 Am. Rep. 628. Compare Heckle v. Lurvey, 101 Mass. 344; S. C. 3 Am. Rep. 366.

See Hagebush v. Ragland, 78 Ill. 40. "A femme covert is liable for fraud committed by her in dealing with her separate property, or by her husband, as her agent, to the same extent as individuals in all respects capable of acting sui juris, Rowe . Sinith, 45 N. Y. 230; Baum Mullen, 47 N. Y. 577. This liability necessarily results from the capacity conferred on her to acquire, hold and transfer property, and to deal with her separate estate, as if she were unmarried." ALLEN, J., in Vanneman v. Powers, 56 N. Y. 39, 42.

See Burnard v. Haggis, 14 C. B. (N. 8.) 45.

English cases, which hold, as we have seen, that an infant cannot be made liable as for a tort for falsely affirming that he is of age, and thereby effecting a contract, are supported in their principle by others, which affirm that the wife may rely upon her coverture as a defense to contracts obtained by her on a false assertion that she was unmarried.'

*

There is reasoning in some of these cases which does not appear entirely satisfactory; for it assumes that if an action might be supported for the breach of such a contract, "the wife would lose the protection which the law gives her against contracts made by her during coverture. *For every such contract would involve in itself a fraudulent representation of her capacity." But we can hardly agree that the making of a contract involves an assertion of competency to make a lawful contract. Such a doctrine would make every contract by an infant involve a false assertion of majority, which is far from being the common understanding. It seems much more reasonable to act on a supposition that every person satisfies himself whether those with whom he deals are competent to contract; and if he makes no inquiry when dealing with one under disability, the sensible conclusion is that he relies upon honor and integrity rather than upon legal responsibility. It is quite certain that no one understands, when a purchase is made on credit, that there is any implied assertion by the buyer that he has property sufficient to make good his promise to pay. The seller is supposed to have informed himBut [*118] when the *seller refuses to deal, except after assurance of legal responsibility, this is an express refusal to assume the risk, and the doctrine that he nevertheless shall do so seems to us as questionable in logic, as it certainly is in morals. But the authorities are as above stated.'

self on that point, and to consent to run the risk.

In the recent changes in the common law effected by statute

'See Cooper v. Witham, 1 Lev. 247; 1 Sid. 375; 2 Keb. 399, in which the contract effected by means of the fraud was a contract of marriage. Husband and wife are not liable for the fraud of the wife in the purchse by her of goods on a false assertion that she and her children were in destitute circumstances. Woodward v.

Barnes, 46 Vt. 332; S. C. 14 Am. Rep. 626.

2 Pollock, C. B., in Adelphi Loan Ass'n. v. Fairhurst, 9 Exch. 422. See, also, Wright o. Leonard, 11 C. B. (N. 8.) 256.

In Keen o. Coleman, 39 Penn, St. 299, a married woman had obtained property on a false assertion that she

in the several States, whereby married women have been given an independent power to make contracts and to control property, it is not very clear how far the law of torts has been modified. We should probably be safe in saying that so far as they give validity to a married woman's contracts, they put her on the same footing with other persons, and when a failure to perform a duty under a contract is in itself a tort, it may doubtless be treated as such in a suit against a married woman. The same would probably be true of any breach of a duty imposed upon a married woman as owner of property which she possesses and controls the same as if sole and unmarried. In Illinois it has been decided that under the new statutes the husband is not liable for a slander of the wife in which he did not participate, thongh the statutes on the subject, which were supposed to have changed the common law, were silent as regards her torts, and only purported to secure to the wo man her property and earnings and the full control and enjoyment thereof. This is, perhaps, a sound conclusion. Certainly the reasons on which the new legislation proceeds are such as should leave the wife to respond alone for her torts, for they assume that she is fully capable of controlling her own actions, and can and will act independently of her husband.'

Ricci . Mueller, 41 Mich. 214. In Pennsylvania the husband, under the act of 1887, is not liable for the wife's individual tort. Kuklence v. Vocht, 13 Atl. Rep. 198. In Missouri the husband is jointly liable. Merrill v. St. Louis, 12 Mo. App. 466. In Maine she may be liable for her husband's tort committed as her agent in enforcing some supposed right affecting her property. Ferguson v. Brooks, 67 Me. 251.

But in Ohio and Indiana it is held that the modern statutes do not change the common law rule. Holtz v. Dick, 42 Ohio St. 23; Choen v. Porter, 66 Ind. 194.

2 In Illinois, Michigan, and Iowa, the statutes relative to the rights of married women have been held to entitle the wife to recover for her own