1 Watts 229 | Pa. | 1832
The opinion of the Court was delivered by
In regard to the first question, I consider it a well settled principle, that a wife can not be joined with her husband as a defendant in an action founded upon a contract or promise either express or implied, except where she has made the contract or promise, or done the act from which it is to be implied, before coverture; and that in every such case the wife must be joined in the suit with the husband. Robinson v. Hardy, 1 Ves. 281, 440 ; Drue v. Thorn, Alleyn 72; Mitchinson v. Hewson, 7 Term Rep. 348. Neither at law nor in equity will the courts take cognizance of distinct and separate claims, or liabilities of different persons in the same suit. 1 Chitty’s Pl. 8, 31. And therefore, in an action ex contractu against several, it must appear, on the face of the pleadings,
In conformity to this principle, it has been held that two actions, brought by the same plaintiff, one against the husband alone for words spoken by him, and the other against the husband and wife for words spoken by the wife, cannot be consolidated. Swithin v. Vincent, 3 Wils. 337. The court in that case delivered its opinion in the following words: “ this cannot be done, for it would be error to join the wife in a declaration for words spoken by the husband only, and the declaration would be ill, either upon a demurrer or in arrest of judgment.”
The first declaration filed in the cause under our consideration did not profess to make George K. Nutz liable, otherwise than by his having become the husband of Mary Reutter, against whom the plaintiff below alleged she had her cause of action; but it was no doubt the intention of the attorney of the plaintiff below, by his filing the new declaration, to spread on the record a cause of action that would charge Nutz individually, and in his own right; although I have my doubts whether he has done so; indeed, I am rather inclined to think that he has not stated a sufficient consideration in it to make Nutz liable individually, and in his own right. However, upon this I do not wish to be understood as giving any opinion by which I shall feel myself bound in the least degree hereafter. But admitting that it is such as it was designed to be, then it would be incompatible with the first, which must still be considered as a part at-least of the declaration in the cause, for it was not asked of the court to be withdrawn, and certainly never was withdrawn. Hence, the declaration may never be considered as consisting of two counts. In forming an opinion of the correctness of the proceeding in this case, we consider and judge,of it in the same way as if the original parties to it were all still in full life, because every cause of action must refer to the original commencement of the suit, and if it did not exist then, or were not good, ,or could not then be made a good ground for recovery on the part of the plaintiff, it cannot become or be made so by any subsequent occurrence in that action. Now let us apply the ordinary test in such cases, in order to determine whether two counts can be joined in the same declaration in an action against a husband and wife, one charging him and the wife both in right of the wife, and the other charging him in his own individual capacity and right. Chief Justice Wilmot says, the true test to try whether two counts can be joined in the same declaration is to consider and see whether, there be the same judgment in both, and wherever there is the same judgment in both, he thinks they may well be joined. In this opinion the other judges concurred. Dickson v. Clifton, 3 Wils. 331 ; 1 Term
We also think that the court below erred in their charge to the jury in regard to the appointment of George K. Nutz guardian of the person and estate of the defendant in error, and. as to the effect of what he did under that appointment, whether it amounted to an acceptance of the guardianship generally or not. The charge of the court upon this matter was calculated, to say the least of it, to mislead the jury, by leaving them at liberty to consider the appointment of Nutz, a guardian of the defendant below, for a special purpose only, merely to bring and prosecute an action to recover a tract of land in Northumberland county, in which she had an interest. The .words of the court are, “ the appointment of Nutz as guardian, for the purpose of instituting the ejectment in Northumberland county, and his instituting that ejectment without taking upon himself the guardianship of plaintiff’s other property, would not support defendant’s plea.” Now there was nothing in the evidence to warrant these remarks to the jury. There was no evidence of Nutz's having been appointed guardian but once. That appointment was general in its terms, and could not be restricted. It made him -guardian of her person and all her estate, and if he did any act as guardian under it, it was an acceptance of the appointment generally, and he thereby became responsible as such. There being then no other evidence given of his appointment as guardian than the certificate from the clerk of the orphan’s court, which showed that his appointment was general; and it being admitted, that after that he had commenced and prosecuted an action of ejectment as guardian of the defendant in error: his authority to do so could only be derived from this appointment, and was conclusive evidence of his having accepted it, and the court below ought to have so instructed the'jury. And as he therefore was entitled to receive, and must.be considered as having received all the moneys, goods and chattels mentioned in the declaration in this action, to which the plaintiff below lays claim, as her guardian, and never having settled his guardianship account with the orphan’s court, this action could not have been supported against him alone, or his personal representative, even had it been so originally brought. This has been settled and ruled by this court in the case of Bowman v. Herr, 1 Penns. Rep. 282.
The judgment of the court below is reversed.