46 Vt. 389 | Vt. | 1874
The opinion of the court was delivered by
The husband is liable with the wife for her torts, but she is not liable for his torts, unless they are her torts also. This action being against both husband and wife, for tort, can only be maintained for some tort of the wife. The conversion of property to use merely by the wife, is to the use of the husband, and not of herself. Salk. 114; 2 Wms. Saund. 47 i. The mere detention of property wrongfully by her, is not her tort, but her husband’s. 2 Greenl. Ev. § 647. This appears from the fact that the action of detinue, the gist of which was wrongful detention, could be maintained against the husband only. 1 Chit. Pl. 82; Bac. Ab. Lit. Detinue, A. Where the conversion is by destruction of the property by her, she .may be held with her husband. Keyworth v. Hill, 3 B. & Ald. 685 ; 2 Roper Hus. & Wife, 77. Or by consumption by her; as, “ suppose she were to take my sheep and eat them.” Buller N. P. 46. According to these principles, the wife cannot he held liable for the articles of specific property nor for the money merely detained and kept from the plaintiff by the defendants. But the appropriation or payment of money, as it had no ear-marks, and circulates as currency, would be equivalent to destruction or consumption of it in respect to the person entitled to it. Such disposition of it could be made by the wife independently of the husband, and, if unlawful, would constitute a tort of hers, for which both would be holden. The evidence in this case tended to show an appropriation and payment by the wife of money left by the intestate at his decease, and that she paid part of it for the funeral expenses. Probably, it was unavoidably necessary for the husband to provide for the