Tobey v. Smith , 81 Mass. 535 ( 1860 )

Metcalf, J.

The counts in tort are bad on demurrer, because they allege a conversion by husband and wife to “ their ” own use; whereas a conversion cannot, in legal contemplation be to the use of the wife. Broom on Parties, § 331. 2 Saund. Pl. & Ev. (2d ed.) 1141. 2 Dane Ab. 204. Formerly this was cause for arresting judgment, or for reversing it on a writ of error. But it was decided by the court of king’s bench, in 1820, that a count thus framed was sufficient after verdict. Keyworth v. Hill, 3 B. & Ald. 685. An action of this kind may be maintained against husband and wife, when they jointly convert property; 2 Saund. (5th ed.) 47 u, note; Newman v. Cheyney, Latch, 126; or when the wife alone converts it; but the declaration should allege that the conversion was to the use of the husband. See Catterall v. Kenyon, 3 Ad. & El. N. R. 310, and 2 Gale & Dav. 545; Estill v. Fort, 2 Dana, 237.

The count in contract is also bad, because it alleges a contract which cannot legally exist; namely, a joint contract by husband and wife with a third person. See Crasser v Eckart, 1 Binn. 586. Demurrer sustained.