Page images

ture, in either of which cases she might be joined, (m) though after verdict such an interest would perhaps be intended.(n)

280. For torts to the person of the wife, the declaration may either seek compensation for the immediate and direct injury to the wife, in respect of which a right of action would survive to her, or for the consequential and special damage to the husband; in the former case, the husband and wife must join,(0) in the latter, the husband must sue alone.(p) Therefore, in trespass by both jointly, for an assault on the wife, the surgeon's bill cannot be recovered ;(9) and for this, as well as for compensation for the loss of the wife's society and services occasioned thereby,(r) or resulting from criminal conversation with her,(8) or from her abduction, (1) false *imprisonment or malicious prosecution,(u) the husband alone must

[*232] sue ; but in his declaration he may likewise recover for a personal tort to himself; so that although an action could not be maintained for the battery of husband and wife, by both jointly, because for the battery of the husband the wife ought not to join,(x) yet the husband may sue alone for the assault on himself and for the consequential damage resulting from the personal wrong to his wife.(y) So, husband and wife cannot recover in the same action for an assault on the wife, and for taking the goods of the husband.(z)

281. In like manner, in case for slander of the wife, if the words are actionable per se, although the husband and wife must join for the direct injury,(a) yet the husband should sue alone for consequential damage,(6) as he must also do if the words are not actionable per se, but only by reason of special damage.(c) Hence, in the former case, special damage cannot be recovered by husband and wife, for loss of service by the wife, for this is to the husband's sole damage ;(d) and in the *latter, i. e. if the words are not actionable in themselves, an action does not lie

[*233] at suit of husband and wife, for injury to a business carried on by the latter living separate from her husband, for the profits of such business accrue to him alone.(e) If the husband survive he may sue for any tort to the wife's

8. 286.

(m) Serres v. Dodd, 2 Bos. & P. N. R. 405. 407; Com. Dig: Pleader, (3 K. 10).

(n) Bourn v. Mattaire, Ca. temp. Hardw. 119; Selw. N. P. 10th ed. 295; Com. Dig. Pleader, (3 K. 10).

(0) Per Tauntou, J., Saville v. Sweeny, 4 B. & Ad. 523 ;u 3 Bla. Com. 140; post, (p) Per Taunton, J., 4 B. & Ad. 523 ;u 3 Bla. Com. 140. See the forms, Chitt. jun. Pl. 718.

(9) Per Lord Abinger, C. B., Dengate v. Gardiner, 4 M. & W.7;* Chitt. jun., Plead. 718, n. (r); but see Todd v. Redford, 11 Mod. R. 264; Dix v. Brookes, 1 Stra. 61.

(s) Guy v. Livesey, Cro. Jac. 501, 502 ; Per Holt, C. J., Russell v. Corne, 3 Lord Raymond, 1031; S. Č. 1 Salk. 119.

(s) 3 Bla. Com, 139, 140. (1) Hyde v. Scyssor, Cro. Jac. 538; Young v. Pridd, Cro. Car. 89. (u) Smith v. Hixon, 2 Stra. 977; Dalby v. Dorthall, Cro. Car. 553. (2) Newton v. Hatter, 2 Lord Raymond, 1208; Anon, v. Heylers, Cro. Car. 175. (y) Guy v. Livesey, Cro. Jac. 501; Read v. Marshall, 8 Mod. 342. (2) Talbot v. Bacon, 1 Lev. 3; ante, s. 278.

(a) Dengate v. Gardiner, 4 M. & W. 5 ;* Grove v. Hart, cited 4 B. & Ad. 520, 521 ; post, s. 287.

(b) Dengate v. Gardiner, 4 M. & W. 5.* (c) Saville v. Sweeny, 4 B. & Ad,514 ;u Coleman v. Harcourt, 1 Lev. 140, cited, Russell v. Corne, 2 Lord Raymond, 1032. (e) Saville v. Sweeny, 4 B. & Ad. 513.a

u Eng. Com. Law Reps. 24. "Reprinted at $2.50 per vol.

(d) Id.

person or property, for which he might have sued alone during the coverture ;(8) hence, it follows from the preceding sections, that the right of suit for a tort of that description will not survive, unless there be special damage to the husband.

282. The restrictions which prevent a feme covert from suing alone are the same in actions founded on tort as in those ex contractu.(h) If she survive, the rule respecting her right of action for torts previous to her husband's death, is that, wherever she either might or must have joined with her husband during his lifetime, in such cases the right of suit survives to her ;(i) and consequently a right of action for injuries done to her person or property either before or during coverture will survive to her, and she may include in one action trespasses to her land, committed as well in the lifetime of her husband, as since his decease ;(k) but where a

*life estate vested in the wife, by survivorship, it was held that [*234]

she could not sue the assignee of her husband, who had become bankrupt for permissive waste, suffered by them before her husband's death.(7)

283. In quare impedit,(m) or trespass to land held in right of his wife,(n) and in case for obstructing a right of way to land leased to the wife dum sola, or for cutting down trees, the lops of which were reserved to her,(0) the husband may either sue alone, or jointly with his wife; and in suing for an injury to the reversionary interest in lands demised to husband and wife, the latter need not join.(P) So, where the wife is the meritorious cause of action, or where she has a vested interest which is directly affected by defendant's tortious act;(9) as, in an action, for the escape of a person committed for non-payment of money, found due to husband and wife by a Master in Chancery under an order of reference.(r)

284. With respect to personalty, the rule is that where the cause of action had its inception only before marriage, but was consummated afterwards, the wife may join or not at the husband's election ; as in trover, if

the finding was prior, and the conversion subsequent to *marriage,(8) [*235]

or case for the rescue of a distress during coverture, for a rentcharge due to the feme dum sola,(t) for the rescue is a tort to the husband, for which he may sue alone, but inasmuch as it arises out of a duty due to

(g) Vin. Ab. Bar, and Feme, (G.); Com. Dig. Bar. and Feme, (W.), (X); 1 Chitt. Plead. 6th ed. 75.

(h) Ante, ss. 99, 100; Boggett v. Frier, 11 East, 301 ; Clarke v. Davies, 7 Taunt. 72.0 As to staying proceedings if wife sue in husband's name without indemnifying him, 2 Chitt. Arch. Pr. 7th ed. 996.

(i) Post, ss. 283. 287; Roll. Ab. Bar. & Feme, 349, (A.).
(k) Com. Dig. Bar. and Feme, (2 A.); Woodfall, L. & T. 4th ed. 578.
(1) Bacon v. Smith, 1 A. & E., N. S. 345.C
(m) Selw. N. P. 10th ed. 294; Co. Litt. 351, a.
(n) Com. Dig. Bar. and Feme, (X.) (V.); 1 Roper, Husband and Wife, 2nd ed. 215.

(o) Baker v. Brereman, Cro. Car. 418; Tregmiell v. Reeve, Id. 437. See Jeremy v. Lowgar, Cro. Eliz. 461.

(p) Wallis v. Harrison, 5 M. & W. 142.* (9) Weller v. Baker, 2 Wils. 414, cited 4 B. & Ad. 518, and Id. 523, per Littledale, J.; Dunstan v. Burwell, 1 Wils. 224.

(r) Huggins v. Durham, 2 Stra. 726. (8) Blackborn v. Greaves, 2 Lev. 107; S. C. nom. Batmore v. Graves, Ventr. 260. See note to Nelthrop v. Anderson, 1 Salk. 114. (t) Com. Dig. Bar. and Feme, (X.); Bac. Ab. Bar. & Feme, (K.).

bEng. Com. Law Reps. 2. cId. 41. dId. 24. *Reprinted at $2.50 per vol.

the wife, she may be joined at his election ;(u) and in replevin for goods of the feme, taken whilst sole, she may join, if her title appear on the face of the record, or the husband may sue alone, because they became, by the marriage, his property.(x) And where goods were mortgaged to a feme sole by indenture, with a proviso, that if principal and interest should be paid at stated periods, the deed should be void, but no default in such payment was alleged in the declaration, so that the property in the goods did not absolutely pass; it was held that, after the marriage of the mortgagee, she might join with her husband in trover for an inventory of the goods, which had been annexed to the deed, for the right of action would have survived to her, and this is the true test; whereas the husband might also in this case have sued alone, because without the inventory he would never have been able to recover the goods.(y)

285. In real actions for recovery of the land of the wife, she must have joined with her husband, and she *may join with him in the demise in an ejectment even though the disseisin was subsequent to the [*236] marriage ;(z) and likewise in detinue for charters of her inheritance, for they are incident to the estate. (a) So, the wife should perhaps join in an action on the case for waste upon a lease for years by husband and wife, the seisin being in right of the wife ;(6) and for torts to the personal property of the wife, which had both their inception and consummation before marriage, she must be joined, as, in trover, if both the finding and conversion then occurred ;(c) or in trespass for an injury done to the property of the wife dum sola.(d)

286. So, where the gist of the action is for an assault, battery, malicious indictment, or imprisonment,(e) or for any personal wrong or violence(8) done to the wife, *so that an action would survive to her, she ought to be joined,(i) but where the injury is not of that kind, and

[*237] no action would survive to the wife, the only cause being a special damage to the husband, the wife cannot be joined, having no legal interest in that which forms the gist of the action.(k) In like manner husband and wife must sue jointly for slander of the wife, when the words are actionable in

(u) Adjudged, Fenner v. Plasket, Cro. Eliz. 459.

(2) Bourn v. Mattaire, Cas. temp. Hardw. 119; Serres v. Dodd, 2 Bos. & P. N. R. 407. As to detinue, ante, s. 279.

(y) Per Lord Denman, C. J., and Coleridge, J., Ayling v. Whicher, 6 A. & E. 259. 264.e

(z) Bac. Ab. Bar. and Feme, (K.); 1 Bulstr. 21; Plowden, 418; Woodfall, L. & T. 4th ed. 578; Chitt. Pleading, 6th ed. 74, and n. (y); Selw. N. P. 10th ed. 288; 1 Roper, Husband and Wife, 2nd ed. 185.215; Vin. Ab. Bar. and Feme, (R.) pl. 15, (T.) pl. 4. By stat. 3 & 4 Will. 4, c. 27, s. 36, all real and mixed actions are abolished, except an action of dower, quare impedit, and ejectment.

(a) Com. Dig. Bar. and Feme, (V.); Bac. Ab. Bar. and Feme, (K.); Co. Litt. 6. a.; 1 Selw. N. P. 10th ed. 288.

(6) Com. Dig. Bar. and Feme, (V.); 1 Selw. N. P. 10th ed. 288; Chitt. Plead., 6th. ed. 74; but see Woodfall, L. & T. 578. Semble, the husband may sue alone.

(c) Com. Dig. Bar. and Feme, (V.): arg., Milner v. Milnes, 3 T. R. 629. (d) Milner v. Milnes, 3 T. R. 627.

(e) 3 Bla. Com. 140; Hardy v. Robinson, 1 Keb. 440; Hyde v. Scyssor, Cro. Jac. 538; Guy v. Livesey, Id. 501 ; Higgins v. Butcher, Yelv. 89 ; Horton v. Byles, 1 Sid. 387; Com. Dig. Bar. and Feme, (V.). (g) Per Taunton, J., Saville v. Sweeny, 4 B. & Ad. 523.

(i) Newton v. Hatter, 2 Lord Raymond, 1208; Russell v. Corne, İd. 1031. (k) Per Taunton, J., 4 B. & Ad. 523;s Coleman v. Harcourt, 1 Lev. 140.

Eng. Com. Law Reps. 33. (Id. 24. Id. 24. May, 1847.-11

themselves, though special damage, as for the loss of the wife's wages, cennot in such an action be recovered :(l) and where the words are not actionable per se, but only by reason of special damage, the wife cannot join ;(m) for words spoken of husband and wife there must necessarily be two actions, since the wife cannot join for slander of the husband ;(n) and, where the wife has a right of action in autre droit, she must sue jointly with her husband.(o) We may add that in an action by the husband for criminal conversation, evidence of a valid marriage must be given, and not merely of a marriage de facto.(P)

*287. It is a well known rule that the demise declared upon in [*238]

an ejectment must be consistent with the title of the lessor, that is to say, such a demise must be supposed to have been made as would, if actually made, have transferred the right of possession to the lessee.(9) In applying this rule to an ejectment by husband and wife, we must observe that at common law and irrespective of the stat. 32 H. 8, c. 28, a lease of land held in jure uxoris by the husband alone will be good, unless the wife by some act shew her dissent therefrom. By the statute just mentioned a husband seized of land in right of his wife is enabled to make a lease of the land so as to bind her absolutely, but if the directions contained in the statute are not duly observed, then the common law takes effect, and the wife will be at liberty to dissent from and avoid the lease.(r) It follows from this that the demise in an ejectment for lands of the wife may be laid in the name of the husband alone, or of the husband and wife jointly, unless the ejectment be brought for lands already held under a lease, either from the husband or from the husband and wife, in which case the demise in the ejectment ought to be conformable to that in the lease : it is therefore laid down, that if the husband seized in fee jure uxoris has made a lease jointly with his wife, and that lease being forfeited or expired, he brings ejectment and shews a demise to the plaintiff by himself only, the declara

tion will be bad.(8) In connection with this part of our *subject, [ *238 a]

we may refer to a recent case not yet reported in which a rule Nisi for a new trial in an action of ejectment was obtained on the ground that the defendant was the wife of the lessor of the plaintiff, and the court after argument discharged the rule, observing that the effect of the consent rule was to put in issue nothing but the defendant's title, and that the technical objection raised to the maintenance of the action might be met by the technical answer, that John Doe, and not the husband, was the plaintiff on the record.(t)

(1) Per Lord Abinger, C. B., Dengate v. Gardiner, 4 M. & W. 6, 7.

(m) Grove v. Hart, cited 4 B. & Ad. 520, 521 ;8 Saville v. Sweeny, 4 B. & Ad. 514;& Horton v. Byles, 1 Sid. 387.

(n) 1 Selw. N. P. 10th ed. 298; see Smith v. Cooker, Cro. Car. 512.

() Serres v. Dodd, 2 Bos. & P. N. R. 407; Com. Dig. Bar. and Feme (V.); Woodfall, L. & T. 4th ed. 578; 1 Roper, Husband and Wife, 2nd ed. 189; Thompson v. Pinchell, 11 Mod. 177.

(p) Catherwood v. Caslon, 13 M. & W. 261; see Harvey v. Watson, 8 Scott, N. R. 379. (9) Adams on Ejectment, 4th ed., 166. (r) Doe d. Collins v. Weller, 7 T. R. 478 ; see 2 Crabb, Real Prop. 285, et seq. (8) Coote, L. & T. 576, Bac. Abr. Bar. and Feme (D. 3.) 1) Doe d. Merrigan v. Daly, Q. B., Easter, T., May 11, 1846.

& Eng. Com. Law Reps. 24.

288. An infant has clearly a right of action for a tort to his person or property, though he must sue by guardian or prochein ami ; and trespass has been held to lie by one joint testamentary guardian of an infant against the other for a forcible removal of the infant.(u) Prior to the recent stat. 7 & 8 Vict. c. 66, an action of ejectment could not have been sustained by an alien, for he is disqualified by the common law from holding land ;(v) by the 3rd sect. of that Act, however, every person born of a British mother may hold real and personal estate ; by sect. 4, alien friends may hold every species of personal property, except chattels real; and sect. 5, provides that every alien friend living in this country may hold lands for the purpose of residence or trade for any term not exceeding twenty-one years. By s. 6, moreover, an alien, who has become *naturalized in the manner pointed out by the statute, shall enjoy all such rights and capa

[*238 b] cities (subject to certain exceptions therein mentioned), as a natural born subject of the United Kingdom can enjoy or transmit. Previously to the passing of this Act, it had been held that trespass would not lie at suit of an alien artificer for breaking and entering his dwelling-house held under a lease, void by stat. 32 Hen. 8, c. 16, or under an illegal agreement for such a lease.(x) But an alien friend, though resident abroad, was held entitled to maintain all actions personal, as for assault and battery, libel, slander, and the like ;(y) an alien enemy cannot however (subject to the exceptions previously noticed(z)) sue in our courts.(a)

289. Although, as before stated, a person attainted of felony cannot maintain an action since he is, during the period of attainder, civiliter mortuus ; yet ejectment will lie for freehold lands on the demise of an attainted felon, since the estate does not vest in the Crown until office found ;(6) and the effect of a pardon is to restore competency.(c)

(u) Gilbert v. Schwenck, 14 M. & W. 488 ;* see 12 Car. 2, c. 24, s. 8.

(0) Co. Litt. 129, b; Pisani v. Lawson, 6 Bing. N. C. 95 ;l see, however, Doe d. Miller y. Rogers, 1 Car. & K. 390.

(2) Lapierre v. M'Intosh, 9 A. & E. 857 ;k 2 Bla. Com. 16th ed. 293, n. (6). See Wootton v. Steffenoni, 12 M. & W. 129.*

(y) Pisani v. Lawson, 6 Bing. N. C. 90.95 ;' Tirlot v. Morris, 1 Bulstr. 134; Com. Dig. Alien (C. 5).

(z) Ante, s. 113. See Alciator v. Smith, 3 Camp. 245.
(2) Com. Dig. Alien (C. 5).
(b) Doe d. Griffith v. Pritchard, 5 B. & Ad. 765. Ante, s. 114.

(c) Doe d. Evans v. Evans, 5 B. & C. 584;n see the argument in Bullock v. Dodds, 2 B. & Ald. 268, et seq. bEng. Com. Law Reps. 37. Id. 47. *Id. 36. 'Id. 37. mId. 27. DID. 12.

*Reprinted at $2.50 per vol.

« PreviousContinue »