property; or for money loaned to him; or to recover the value of services rendered in his business under an express contract, or under such circumstances that a promise to pay therefor would be implied.1 When the husband and wife are owners in common of land, she may maintain a suit against him for a partition.2 The foregoing cases all involve and are based upon rights of action growing out of her ownership of property, or out of contract in reference to such property, or to her services. No rights of action arise from personal torts committed by the husband, and she is not permitted to maintain actions against him to recover damages for such torts, as an assault and battery, or a slander.1 A husband cannot recover in an action against his wife for his services rendered to her in the oversight and management of her separate property, there having been no express agreement for the payment of a compensation, and the circumstances being such that no promise could be implied."

§ 155. *241. Actions for Personal Torts and for Fraud and Deceit. At the common law the husband and wife were required to join as plaintiffs in all actions for damages from the wife's personal suffering, either bodily or mental, while he sued alone in all actions for damages suffered by himself exclusively, from the loss of her society, and from expenses and the like occasioned by her injuries. Except in New York, and the other States

1 Adams v. Curtis, 4 Lans. 164. The action was against a firm of which the husband was a member. She may be his creditor. Re Alexander, 37 Iowa, 454. He may sue her for conversion of his property; Berdell v. Parkhurst, 19 Hun, 358. She may sue him for conversion; Ryerson v. Ryerson, 55 Hun, 191, 38 N. Y. St. Rep. 375; to recover her personal property; Howland v. Howland, 20 Hun, 472. She may sue her husband, or be sued by him, on a contract made for the benefit of her separate estate; Granger v. Granger (1886), 2 N. Y. St. Rep. 211 (suit by husband on promissory note of wife); Benedict v. Driggs, 34 Hun, 94, and cases cited. Whether a partnership agreement is such a contract is a question on which the decisions are at variance. It is held in Fairlee r. Bloomingdale, 67 How. Pr. 292, in Noel v. Kinney (1885), 31 Alb. Law J. 328, and

in Kaufman v. Schoeffel, 37 Hun, 140, that husband and wife cannot legally enter into a business copartnership: to the contrary, Graff v. Kinney, 1 How. Pr. N. s. 59; Zimmerman v. Erhard, 58 How. Pr. 11. See also, on the general subject of the wife's mental disabilities, Bertles ". Nunan, 92 N. Y. 152; Coleman v. Burr, 93 N. Y. 17.

2 Moore v. Moore, 47 N. Y. 467. The husband and wife may sue jointly for the conversion of chattels which they own jointly. Chambovet v. Cagney, 35 N. Y. Superior Ct. 474.

3 Longendyke v. Longendyke, 44 Barb. 366; Schultz v. Schultz, 27 Hun, 26, 63 How. Pr. 181, contra, was reversed without opinion by the Court of Appeals, 89 N. Y. 644.

Freethy v. Freethy, 42 Barb. 641.

5 Perkins v. Perkins, 62 Barb. 531. Alward v. Alward (1888), 2 N. Y. Suppl. 42.

which have made the wife in all respects like the single woman in regard to the capacity of instituting and prosecuting judicial controversies, these ancient doctrines of the common law have been preserved. The wife should certainly not be joined as a plaintiff with her husband in any action for tort to his property, or for fraud in relation thereto, unless she has some interest in or ownership of the subject-matter which has also been affected by the wrong.2 Thus, where a husband is induced by the false and fraudulent representations of the grantor to purchase land, and the title is taken in his wife's name, but the consideration is wholly paid by him, she having in fact no prior legal interest in the land or in the price, an action for the deceit cannot properly be brought in their joint names; he is the only person interested, and should be the sole plaintiff.3 The same has been decided in respect to an action for fraud practised upon a husband and wife, by which a conveyance of land was obtained from them. The land thus conveyed was alleged to have been their homestead, but in fact the wife had no legal interest in it, the title having been exclusively in the husband. A joint action to recover damages for the deceit under these circumstances was held to be improper. If, however, the wife has a legal interest or ownership in the subject-matter which has been injured or lost by the wrongful act or fraud of the defendant, a joint action in the names of both husband and wife to recover, damages is proper. This doctrine has very recently been approved by the New York Court of Appeals, and applied to the following state of facts. The owner in fee of land in which his wife had no interest except her inchoate right of dower, was induced by false and fraudulent representations to sell and convey the premises to the defendant by a deed in which the wife joined, and to receive in consideration thereof certain mortgages which were in fact worthless. A joint action by the husband and wife to recover damages for the deceit was sustained, the husband, it

1 [See notes, pp. 221, 222, ante.]

8 Bartges v. O'Neil, 13 Ohio St. 72:

2 [Edmison v. Zborowski (1896), 9 S. D. Barrett v. Tewksbury, 18 Cal. 334. See 40, 68 N. W. 288: The court said: Stepank v. Kula, 36 Iowa, 563.

"A wife who joins in an acceptance of an offer for her husband's property, and in a deed tendered to the person making the offer, is not a necessary party plaintiff in an action for specific performance."]

+ Read v. Sang, 21 Wis. 678; and see Davies v. Cole, 28 Kan. 259. But see Simar v. Canaday, 53 N. Y. 298.

When a

was said, being entitled to sue on account of his ownership of the fee, and the wife on account of her inchoate dower right.1 $156. * 242. Actions for Personal Torts to Wife. wife has suffered bodily injury, either by violence or by negli gent or unskilful acts of the wrong-doer, and the injury is of such a nature as to disable her for a while and make medical or other attendance necessary, a joint action is not the proper one in which to recover the husband's damages for his loss of her society and for the expenses caused by the wrong done to her; such damages can only be recovered in an action brought by the husband as the sole plaintiff. If, on the other hand, the compensation sought is for the personal wrong done to her, both must unite as plaintiffs [in all those States which follow the second

1 Simar v. Canaday, 53 N. Y. 298, 305. This is certainly an extraordinary decision, and introduces a rule before, I think, unthought of, namely, that whenever the owner in fee is induced by fraud to convey his land, and the wife joins in the deed, the two may maintain a joint action and recover a single judgment in solido for their joint damages. The decision cannot be supported either on principle or on authority; the essential difference between the husband's fixed, certain interest, capable of being ascertained, and the wife's uncertain, contingent interest, under all possible circumstances much less than her husband's, seems to have utterly escaped the attention of the court.

By R. S. Ind., 1881, § 2506, a wife's common-law right of dower was enlarged into a contingent fee, which may become vested, not only by the death of her husband, but by a judicial sale where her inchoate interest is not directed by the judgment to be barred or sold. It was held that by virtue of this statute the wife was a proper party plaintiff with the husband in an action to compel a railroad company to maintain a crossing over its right of way, in accordance with a condition in a deed by the husband and wife of the land for the right of way. Lake Erie & W. R. Co. v. Priest (Ind. Sup. 1892), 31 N. E. Rep. 77. For a nuisance to premises owned by husband and wife as tenants by the entirety, he may sue alone. Demby v. City of Kingston, 60 Hun, 294.

2 Kavanaugh v. Janesville, 24 Wis. 618, action for injuries to wife from a defective sidewalk; Barnes v. Martin, 15 Wis. 240, assault and battery on wife; Smith v. St. Joseph, 55 Mo. 456, 458; Dailey v. Houston, 58 Mo. 361, 366; Tell v. Gibson, 66 Cal. 247. The joint action mentioned in the text was allowed by Laws of Wisconsin, 1873, ch. 96; R. S. Wis. § 2680; Holmes v. Fond du Lac, 42 Wis. 282. But in construing ch. 91, Laws of 1881, which allows the wife to sue alone for a personal tort, it is held that the husband's cause of action for damages special to himself cannot be so joined with the wife's. Shanahan v. Madison, 57 Wis. 276.

[McKune v. Santa Clara, etc. Co. (1895), 110 Cal. 480, 42 Pac. 980: In an action for injuries to a wife's person, husband and wife must join; but in an action for the consequential injury to the husband, in loss of service and expenses incurred, he must sue alone; and these two actions cannot be joined in one suit. Williams r. Casebeer (1899), 126 Cal. 77, 58 Pac. 380: Where a single act against both husband and wife has given each a cause of action for malicious prosecution, they cannot unite their separate causes of action in one complaint and sue jointly, but each must bring a separate action. The wife, however, in bringing her suit must join her husband as party plaintiff. McDevitt v. City of St. Paul (1896), 66 Minn. 14, 68 N. W. 178: a husband may recover damages against a city for injuries suffered

type; as, for example, in suing for a slander or libel upon the wife, the husband and wife must sue jointly, unless he has suffered some special damage, and the object of the proceeding is to obtain compensation therefor." The same rule applies to all torts to the person of the wife; for the injuries to her, both husband and wife must join; for the injuries special to him, such as loss of her society, expenses incurred, and the like, he must sue alone. It has even been held, in a State where the cause of action for a personal tort survives, that, when a claim for damages against a physician for malpractice existed in favor of a wife, and she died, her husband must be joined as a co-plaintiff with her administrator in prosecuting an action to enforce such demand. If the gravamen of the action is a tort to the wife's person, the general rule above stated applies, and the husband

by his wife by reason of a defective side walk, and for expenses for medical attendance. In City of Eskridge v. Lewis (1893), 51 Kan. 376, 32 Pac. 1104, "An action was brought by a married woman against a city to recover for personal injuries resulting from a defective sidewalk, and her husband was joined with her as plaintiff, who sought to recover for the loss of services of the wife. Held, that the wife suffered a loss from the injuries sustained which was personal to herself, and that a demurrer to the petition because of misjoinder was well taken; but dismissing the husband from the case before its submission cured the error committed in overruling the demurrer."]

1 [Giffen v City of Lewiston (1898), Idaho, 55 Pac. 545: Where a husband and wife sue for personal injuries received by the wife, the judgment should run to both. But the right of action for injuries received by a single woman who, before action commenced, married, is in the woman alone, and her husband is not properly to be joined with her: Kippen v. Ollasson (1902), 136 Cal. 640, 69 Pac. 293.]

2 Johnson v. Dicken, 25 Mo. 580; Enders r. Beck, 28 Iowa, 86. This latter decision was made under a statute different from that which is now in force in Iowa. See also McFadden v. Santa Ana, etc. Ry. Co., 87 Cal. 464; Gibson v. Gibson, 43 Wis. 23; Barnett v. Leonard, 66 Ind. 422. The wife may now sue alone,

in Indiana, for a personal tort. Ante, p. 222. [See also Lamb v. Harbaugh (1895), 105 Cal. 680, 39 Pac. 56; Harper v. Pinkston (1893), 112 N. C. 293, 17 S. E. 161: An action by a husband for slander of his wife, the wife not being a party and the complaint alleging no special damages to the husband, states no cause of action.]

3 Long v. Morrison, 14 Ind. 595, 597; McKinney v. Western Stage Co., 4 Iowa, 420. See remark in last preceding note. Dailey v. Houston, 58 Mo. 361, 366; Smith v. St. Joseph, 55 Mo. 456, 458; Rogers v. Smith, 17 Ind. 323; Ohio & M. R. Co. v. Tindall, 13 Ind. 366; Boyd v. Blaisdell, 15 Ind. 73. See also Hammond v. Town of Muskwa, 40 Wis. 354; Beaudette v. Fond du Lac, 40 id. 44; Hunt v. Town of Winfield, 36 id. 154; Oliver r. Town of La Valle, 36 id. 592; Gibson v. Gibson, 43 id. 23; Meese v. Fond du Lac. 48 id. 323; Barnett v. Leonard, 66 Ind. 422; Matthew v. Cent. Pac. R. Co., 63 Cal. 450; Mann v. Rich Hill, 28 Mo. App. 497 (joint action for injuries to the wife not a bar to action for injuries special to the husband).

[Baltimore, etc. R. R. Co. v. Glenn (1902), 66 O. St. 672, 64 N. E. 438 while a wife has a right of action for injuries negligently inflicted, a husband also has a right of action for loss of her services and necessary expenses in healing her injuries, and her recovery is no bar to his.]

4 Long v. Morrison, 14 Ind. 595.

must be joined, although the action might be brought in form ex contractu. As an example, if the wife has been injured by the negligence or other wrongful act of a carrier, who was transporting her as a passenger, although the action might be in form based upon the contract of passage made with her, the injury being proved in enhancement of damages, or might be in form directly based upon the tort, yet in either case the very gist of the claim would be the negligent or tortious act of the defendant, and the husband and wife must therefore unite as co-plaintiffs in order to recover the damages resulting from her personal injuries.1

§ 157. 243. Actions for Torts to Wife's Person in New York and States having Similar Statutes. In those States whose statutes have abrogated the ancient principles respecting the marriage relation, the wife must sue alone in her own name in actions based upon torts to her own person, as well as in actions concerning her own property, or in those founded upon her contracts. Cases illustrating this rule as it prevails in New York have already been given.2 Similar conclusions have been reached by the courts of the other States whose legislation is substantially the same as that of New York.3 Thus it is held in Iowa, under the existing statutory provisions, that a wife must be the sole plaintiff in an action instituted to recover damages for a malicious

1 Sheldon v. Steamship "Uncle Sam," 18 Cal. 526; Warner v. The Same, 9 Cal. 697.

2 See supra, §* 239.

8 [Williams v. Williams (1894), 20 Colo. 51, 37 Pac. 614: The common law doctrine that the wife, as an inferior, could not bring an action for damages against one who wrongfully induces her husband to abandon her, does not exist in Colorado. The wife has rights equal to her husband in this respect. Citing Foot v. Card, 58 Conn. 1; Westlake & Westlake, 34 O. St. 621. Mayor . Smith (1900), 111 Ga. 870, 36 S. E. 955: "A married woman living with her husband may bring an action in her own name for physical injuries sustained by her. Civil Code, § 2475."

A State statute giving a married woman a right to maintain an action for personal injuries in her own name, is applicable to suits commenced in the federal courts as well as to suits brought in

the courts of the State. Texas, etc. Ry. Co. v. Humble (1899), 97 Fed. (C. C. A. Ark.), 837. In Brockett v. Fair Haven, etc. R. R. Co. (1900), 73 Conn. 428, 47 Atl. 763, it was held that the joinder of the husband in an action for personal injury to the wife, was permissive.

Bains v. Bullock (1895), 129 Mo. 117, 31 S. W. 342: A deed of land to a husband and wife in fee creates an estate by entirety and each is entitled to the possession of the entire premises as against third persons. The married women's act has destroyed the legal unity between husband and wife which gave rise to the estate by entirety, but the estate has not been abolished. And under this act allowing a married woman to sue for the possession of her separate property in her own name, she may bring ejectment for her estate by entirety without joining her husband.]