husband.(c) So, after the death of the wife he may distrain *and avow for all rent due in her right, even if it accrue to her in autre [*279] droit, as executrix or administratrix;(d) but it should appear upon the record that he was entitled to make the distress.(e)

336. An avowry by the husband imports a justification of the taking, either in his own right or in right of his wife.(g) An avowry by the husband in right of his wife, for rent in arrear before marriage, will not be bad because it alleges the rent to be due to both husband and wife, instead of to the wife alone, for the avowry being for rent in arrear, to say that it was in arrear to both husband and wife is but surplusage.(h) If, however, there be lessee for years and the reversion descend on a married woman and afterwards the rent be in arrear, and the husband distrain and the lessee bring replevin, the husband ought to avow in the name of himself and his wife, and not in the name of himself only, for the avowry is to be made according to the reversion, which is in the wife, whose life moreover is averred.(i) 337. The wife must, in general, be joined as a defendant for a tortious act committed by her whilst sole ;(k) as in trover, where both the finding and conversion were *before marriage ;(1) and if goods are bailed to

a feme sole who subsequently marries, detinue may, and perhaps [*280] should, be brought against husband and wife jointly.(m) So, for a tort by the wife during coverture she must (subject to the previous remarks) (n) be joined.(0) So, the wife must be joined in case for her libel or slander ;(p) though for words spoken by husband and wife there must be separate actions, the one against husband and wife, the other against husband only, for the wife is not answerable for the husband's tort.(q) Lastly, where a feme sole executrix or administratrix wastes the goods of the testator or intestate, and subsequently marries, an action for the devastavit must be brought against husband and wife jointly, for the husband is liable as long as the coverture lasts.(r)

338. An infant, although incapable of entering into a contract except for necessaries, is liable for his tortious acts, as if he commit an assault, or utter slander,(s) or in person commit a trespass ;(t) but he cannot be made

(c) Woodfall, L. & T. 4th ed. 315; Gravenor v. Woodhouse, 1 Bing. 38;i S. C. 2 Bing. 71; Parry v. Hindle, 2 Taunt. 180.

(d) Woodfall, L. & T. 4th ed. 315; stat. 32 H. 8, c. 37, s. 3.

(e) Wise v. Bellent, Cro. Jac. 442; Gravenor v. Woodhouse, 1 Bing. 38; S. C. 2 Bing. 71;m Osborne v. Wickenden, 2 Saund. R. 197. (g) Ib.; Com, Dig. Pleader, (3, K. 13). (h) Bowles v. Poore, Cro. Jac. 282.

(i) Bac. Ab. Replevin, (K.); Woodfall, L. & T. 4th ed. 729.

(k) 2 Roper, Husband and Wife, 2nd ed. 127; Com. Dig. Bar. & Feme, (Y.); Bac. Ab. Bar. and Feme, (L.). Where the conversion is during coverture, see ante, 331.

(1) Com. Dig. Bar. & Femc, (Y.), As to a joint tort by husband and wife, ante, s. 334.

(m) Co. Litt. 351, b.; Com. Dig. Bar. & Feme, (Y.); 1 Selw. N. P. 10th ed. 657; but see Bac. Ab. Detinue, (A.).

(n) Ante, ss, 331, 334.

(0) Com. Dig. Bar. & Feme, (Y.); Bac. Ab. Bar. & Feme, (L.).

(p) Head v. Briscoe, 5 C. & P. 484," where the wife had committed adultery, and was living separate from her husband.

(9) Swithin v. Vincent, 2 Wils. 227; Bac. Ab. Bar. and Feme, (L.); 1 Selw. N. P. 10th ed. 298.

(r) 2 Williams on Executors, 3rd. ed. 1441.

(8) Per Lord Kenyon, C. J., Jennings v. Rundall, 8 T. R. 337; Noy, 129.

(t) See Co. Litt. 180, b., n. (4), by Mr. Hargrave; Johnson v. Pye, 1 Lev. 169.

Eng. Com. Law Rep. 8. Id. 9. Id. 8. mId. 9. "Id. 24.

*liable by merely framing the declaration in tort, when the action is [*281] substantially grounded on a contract; as by suing in trover for goods delivered under a contract, (x) or in case for an injury done to a horse let on hire,(y) for a deceitful warranty of goods sold by the infant,(z) or for fraudulently representing himself to be of age, and as such executing a mortgage to the plaintiff. (a) But it has been held that detinue would lie against an infant, who fraudulently received goods, concealing the fact of his minority, and wrongfully detained them ;(b) and money had and received, was held to lie against an infant, to recover money which he had embezzled, the action being founded in tort.(c)

339. A person non compos mentis is liable civilly for a trespass committed by him, (d) although he is incapable of design; for the general rule is, that whenever one person receives an injury directly from the voluntary act of another, this is a trespass, although there were no design to injure.(e) With respect to an outlaw or a person attainted, he is clearly liable for a tort, and cannot plead as a defence, that which operates only as a personal disability.(g)

[*282]

*CHAPTER IV.

1. BANKRUPTCY AND INSOLVENCY, ss. 340–343.

2. EXECUTORS AND ADMINISTRATORS, ss. 344-348.

1.-BANKRUPTCY AND INSOLVENCY.

How the Assignees of a Bankrupt should be sued, s. 340. Liability of Bankrupt after Certificate, ss. 341, 342. Insolvency, s. 343.

340. THERE is no peculiarity to notice, where the assignees of a bankrupt are made defendants in an action ex delicto, for at law they cannot be sued in that capacity ;(a) and therefore for a tortious act done by one of the assignees only, the action shall be brought against him alone, the others not being answerable.(b)

341. As to the continuing liability of the bankrupt, it must be observed that he is only discharged by his certificate from debts or claims provable under the commission; and since the damages recoverable for a tortious act are in their nature unliquidated, are ascertainable only by the intervention

(x) Manby v. Scott, 1 Sid. 129. (y) Jennings v. Rundall, 8 T. R. 335.

(z) Green v. Greenbank, 2 Marsh. R. 485. See Grove v. Nevill, 1 Keb. 778; Howlett v. Haswell, 4 Camp. 118.

(a) Johnson v. Pye, 1 Lev. 169; S. C, 1 Keb. 905. 913; recognized, 8 T. R. 337.

(b) Mills v. Graham, I B. & P. N. R. 140. 145.

(c) Bristow v. Eastman, 1 Esp. N. P. C. 172.

(d) Per Curiam, Weaver v. Ward, Hob. 134; Bac. Ab. Trespass, (G.)

(e) Bac. Ab. Trespass, (G.)

(g) Ante, s. 228; Hastings v. Blake, Noy, 1; Bac. Ab. 7th ed, Outlawry, (D. 3.) (a) Ante, s. 229.

(6) Flath. Arch. Bankruptcy, 399; Bac. Ab. Bankrupt, (D.)

of a jury, and do not constitute a debt until judgment is obtained, (c) it follows *that a certificated bankrupt will remain liable for all torts committed by him, prior to the date of his certificate.(d)

[*283] 342. In determining as to a certificated bankrupt's liability, in the case just stated, the form of action is material, for whenever it is necessary to have recourse to a special action on the case, or to an action of trespass to recover damages, the party cannot come in under the commission; (e) and even where the plaintiff has his election to sue in tort, or in form ex contractu, he may, by adopting the former mode of declaring, prevent the bankruptcy and certificate from being pleaded in bar.(g) Hence bankruptcy is no bar to an action for mesne profits, (h) or to an action of trover, where the conversion was before the bankruptcy, although the plaintiff might have elected to waive the tort, and sue for money had and received ;(i) nor to an action on the case for *selling out stock contrary to orders, where likewise the action might have been framed in assumpsit.(k)

[*284] 343. The preceding remarks as to the continuing liability of a bankrupt, are equally applicable to the case of an insolvent tort-feasor; and it has therefore been held, that a plea of discharge under the Insolvent Act, 53 Geo. 3, c. 102, was no bar to an action of trespass,(1) or of trespass for mesne profits, even though accruing before the discharge; (m) and an insolvent is not exonerated from damages unascertained at the time of his discharge, although the action in which they are sought to be recovered was commenced and judgment by default suffered prior to his first imprisonment, as in an action of replevin where judgment was signed for want of an avowry.(n)

(c) Walter v. Sherlock, cited 3 Wils. 272. See Longford v. Ellis, 1 H. Bla. 29, n. (a). Where a verdict in trover was obtained in the vacation against one who became bankrupt in the following term before final judgment was signed, such judgment, signed subsequently in the same term, formerly related back to the first day of the term; and the debt thereby created was consequently barred by the certificate; Greenway v. Fisher, 7 B. & C. 436; but now all judgments, whether interlocutory or final, shall be entered of the day when signed, and shall have relation to no other day; H. T. 4 Will. 4, reg. 3; 1 Chitt. Arch. Pr. 7th ed. 341.

(d) Per Curiam, Lloyd v. Peell, 3 B. & Ald. 408.P

(e) Per Ashhurst, J., Utterson v. Vernon, 3 T. R. 547, adopted by the Court in S. C. 4 T. R. 570; Per Lord Mansfield, C. J., Goodtitle v. North, 2 Dougl. 584; Per Burrough, J., Parke v. Crole, 5 Bing. 70.9

(g) Supra, n. (e); Per Best, C. J., 5 Bing. 70 ;a Parker v. Norton, 6 T. R. 695; 1 Dougl. 4th ed. 168, n. (F. 4.)

(h) Goodtitle v. North, 2 Dougl. 583; Lloyd v. Peell, 3 B. & Ald. 407.p

(i) Parker v. Norton, 6 T. R. 695, recognized in Parker v. Crole, 5 Bing. 69, 70.9

(k) Parker v. Crole, 5 Bing. 63; Forster v. Surtees, 12 East, 605, cited and distinguished per Best, C. J., 5 Bing. 70.r

(1) Lloyd v. Neele, 2 Chitt. R. 222.
(m) Lloyd v. Peell, 3 B. & Ald. 407.s

(n) Wilmer v. White, 6 Bing. 291.t

Eng. Com. Law Reps. 14. Id. 5. ¶Id. 15. rId. 15. *Id. 5. Id. 19.

2.-EXECUTORS AND ADMINISTRATORS.

Liability of Personal Representatives before the stat. 3 & 4 Will. 4, c. 42, ss. 344, 345. Effect of that Statute as to their Liability, ss. 346, 347. Rule as to the Joinder of Executors, s. 348.

*

344. Previously to the stat. 3 & 4 Will. 4, c. 42, the remedy for a tort to the property of another, whether real or personal, such as trespass, trover, or case for waste, for diverting a watercourse, or obstructing lights, could not be enforced against the personal representatives of the tort fea[*285] sor ;(a) although, if chattels wrongfully in the possession of the testator or intestate continued still in specie in the hands of his executors, replevin or detinue would lie against the executor to recover back the specific goods.(0) So trover lies, the conversion being laid to have been by the executor.(p)

345. Also by the stat. 30 Car. 2, st. 1, c. 7, explained and made perpetual by 4 & 5 Will. & M. c. 24, s. 12, the representatives of an executor or administrator who had wasted the goods of his testator or intestate were rendered liable; so that, since these statutes, if a judgment be had against an executor who afterwards dies, an action may now be brought against his executor or administrator upon the judgment, suggesting a devastavit by the first executor. (1) Another apparent (r) exception also to the general rule above stated occurred in the case of the executors of a prebendary,(s) parson, or incumbent of a benefice, who was liable to his successor, at common law, for dilapidations amounting to demolition, or where the buildings, hedges, and fences belonging to the benefice were left in a state of decay, *or where timber was felled for other purposes than repairs or fuel.(t)

[*286]

346. By stat. 3 & 4 Will. 4, c. 42, s. 2, which recites, that there was no remedy provided by law for certain wrongs done by a person deceased in his lifetime to another, in respect of his property real or personal; it is enacted, that an action of trespass or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for any wrong committed by him in his lifetime to another in respect of his property real or personal, so as such injury shall have been committed within six calendar months before such person's death;(u) and so as such action shall be brought within six calendar months after such

(n) 1 Wms. Saund. 216, n. (1); 2 Williams on Executors, 3rd ed. 1358. See Bacon v. Smith, 1 A. & E., N. S. 348,"

(0) Ib.; Le Mason v. Dixon, Sir W. Jones, 173, 174; Bro. Ab. Detinue, pl. 19.

(p) Per Lord Mansfield, C. J., Hambly v. Trott, 1 Cowp. 373; 2 Williams on Executors, 3rd. ed. 1358.

(9) 1 Wms. Saund. 219 c. d; 2 Williams on Executors, 3rd ed. 1357.

(r) Per Patterson, J., Bird v. Relph, 4 B. & Ad. 830; 1 Wms. Saund. 5th ed. 216 a, n. (a.) (s) Radcliffe v. D'Oyly, 2 T. R. 630.

(t) Per Lord Denman, C. J., and Patteson, J., Bird v. Relph, 4 B. & Ad. 830; Wise v. Metcalfe, 10 B. & C. 299.b

(u) As to what is sufficient evidence of a conversion within the six months, see Richmond v. Nicholson, 8 Scott, 134, which was an action of trover against an executor for a conversion by his testatrix.

"Eng. Com. Law Reps. 41. *Id. 24. Id. bld. 21.

executors or administrators shall have taken upon themselves the adminis tration of the estate and effects of such person; and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person.

347. Where, under this statute, damages had been recovered in trespass against an administrator, for the tortuous raising and taking of coal from the plaintiff's land by the intestate during the six months prior to his decease, it was held, that an action for money had and received would also lie for the proceeds of so much coal as had been, previously to such six months, sold by the intestate, and in respect of which the remedy [*287] in tort was consequently barred by the statute (x) and where, besides the tortuous act of the testator, property is acquired by him as a consequence thereof, it is clear, that an action in form ex contractu, for the value of such property, would, even where the stat. 3 & 4 Will. 4, c. 42, does not apply, survive against the executor; as in the case above cited, or in the instance of trees wrongfully cut down, or property wrongfully acquired and sold by the testator.(y) So, at common law, an action on the case will not lie against the executor of a common carrier on the custom of the realm, nor will an action of trespass lie, if testator take the horse of another and bring him back again; but in either case the declaration may be framed in assumsit, and the action will lie accordingly.(z)

347 a. For a tort committed to the person, it is clear that at common law no action can be maintained against the personal representatives of the tort feasor, nor does it seem that the recent stat. 9 & 10 Vict. c. 93, *sup[*288] plies any remedy against the executors or administrators of the party who by his "wrongful act, neglect, or default," has caused the death of another, for the 1st sect. of this Act renders that person liable to an action for damages "who would have been liable if death had not ensued," in which case, as above stated, the personal representatives of the tort feasor would not have been liable.(a)

348. Where executors are sued for their own wrongful act, the rules applicable to the joinder of defendants in ordinary cases will apply, and those only should be joined who have been guilty of the tort ;(b) and therefore, if there are three executors, and one hath possession, detinue lies against him only. (c) When, however, the tort was committed by the deceased, as in an action of trover, where the conversion is laid to have been by him, it should seem that all the executors who have administered

(x) Powell v. Rees, 7 A. & E. 426; The Bishop of Winchester v. Knight, 1 P. Wms. 406.

(y) Per Lord Mansfield, C. J., Hambly v. Trott, 1 Cowp. 373. 376, recognised 7 A. & E. 429; Per Lord Kenyon, C. J., 3 T. R. 549; 1 Wms. Saund. 216, (1); Com. Dig. Administration, (B. 15).

(z) Per Lord Mansfield, C. J., Hambly v. Trott, 1 Cowp. 375; Per Sir J. Mansfield, C. J., Powell v. Layton, 2 B. & P. N. R. 370; Perkinson v. Gilford, Cro. Car. 579. Case seems always to have lain at common law against the executors of a deceased rector for permissive waste, Wise v. Metcalfe, 10 B. & C. 307, 308.d

(a) 1 Wms. Saund. 216 n. (1); 3 Bla. Com. 302; Com. Dig. Administration, (B. 15), 2 Inst. 382; Ireland v. Champneys, 4 Taunt. 881.

(b) Archb. Pl. & Ev. 2nd ed. 69; ante, ss. 300, 301.

(c) Bro. Ab. Detinue, pl. 19; Com. Dig. Abatement, (F. 10).

cEng. Com. Law Reps. 34. dId. 21.

JUNE, 1847.—13