9

general be sued in a court of common law for it in an action for money had and received. Holt, N. P. C. 641. But where money in litigation between two parties, was by mutual consent paid over to a person in trust for the party entitled, the court held that the party ascertained to be entitled to it might maintain an action for it against the trustee, East, 378. So where a person held a bill of exchange in trust for another, and having commenced an action upon it, became bankrupt; afterwards, the sheriff having allowed the defendant to escape, the assignees brought an action for the escape, and recovered damages to the amount of the bill; the court held that the person for whom the bankrupt held the bill in trust might maintain an action for money had and received against the assignees, for the amount of the damages thus recovered by them, allowing to them the costs and expenses. M. & S. 714. So, in the common case of money deposited with a stakeholder, it can be recovered from him in an action for money had and received, by the party entitled to it. 13 East, 20. 5 T. R. 405. 3 Taunt. 277. 4 Taunt. 474.

*The other necessary observations upon this subject will be found under the following heads.

Joint-tenants, &c.] One joint-tenant or tenant in common, or his executor, &c. may have an action of account against the others as bailiffs, for receiving more than their proportion of the profits of the estate. 4 Ann, c. 16. and see Co. Lit. 172 a, 186 a, 200 b. 3 Leon. 228, F. N. B. 118. So, one joint-tenant or tenant in common may maintain ejectment or other action against the others, if they eject him or withhold the possession from him; Co. Lit. 199 b; but it must be an actual disseisin, such as turning him out, hindering him to enter, &c.; a bare perception of the profits is not sufficient. 1 Salk. 392. 7 Mod. 39. 1 East, 568. See 3 Bur. 1895. In trespass against B. C. and D. for turning A. out of his house, and keeping the house and goods from him, it was holden to be no plea to say that A. had nothing in the said house and goods but jointly and undividedly with D. 2 New Rep. 188. But for a mere entry upon the premises, without an ouster, no action of trespass will lie. Lit. s. 323. Th. Dig. 1. 11, c. 30, s, 6. 1 Salk. 4. Skin. 6. And also where there are two joint-tenants or tenants in common of a perso. nal chattel, such as a horse, a hawk, &c. and one of them seizes it for his own use solely, the other has no remedy by action. Lit. s. 323. Co. L. 200 a. 1 T. R. 651. Therefore if one of two partners become bankrupt, his assignees cannot maintain trover against the solvent partner or his executor for any of the partnerhip goods, 1 East, 363, nor against any other person to whom the solvent partner may have given or delivered them; 1 East, 308; because in these cases the solvent part

ner, his executor, and the person to whom he delivered the goods, respectively, were, as to these goods, tenants in common with the assign ees of the bankrupt. But if a joint-tenant or tenant in common destroy the goods, &c.—as if there had been two tenants in common of a park or dove house, and one of them destroy all the deer, or take all the old doves and destroy the flight, the other may undoubtedly maintain trespass against him. Co. Lit. 200, a, b. And where one tenant in common of a ship, took it away and sent it to the West Indies, where it was lost in a storm, this was holden to be evidence of a destruction, and the other tenant in common recovered against him in an action for his moiety. Bul. N. P. 34, 35. So, one joint-tenant or tenant in common may maintain trespass for mesne profits against the other, after a recovery in ejectment; 8 Wills. 118; for although not within the words, it is within the equity of the stat. 4 Ann, c. 16, above mentioned. So, if a husband and wife and A. be tenants in common, and the husband die, and his wife sue dower against the heir before partition, it is no plea that he is tenant in common with A. and the demandant. R. 3 Lev. 84. So, when two are seised of a house or mill as tenants in common or joint-tenants, and one be willing to repair it, he may have a writ de domo reparanda against the other. Co. Lit. 200 b. As to the joinder of joint-tenants and tenants in common, in actions by them against strangers, see post.

One parcener cannot sue the other in account, the statute allowing joint-tenants and tenants in common to do so, being strictly *confined to them. See Co. Lit. 200 b. 2 Inst. 403. Nor can one parcener sue the other in any other form of action, unless for an actual disseisin or the like.

Partners being in fact joint-tenants, may sue each other in account, as above mentioned, but in general in no other action. It has been holden, however, that one partner may maintain an action for money had and received against another, for money received to the separate use of the former, and wrongfully carried to the partnership account. 2 T. R. 476. So where A. and B. joined in the purchase of goods for their joint profit, to be paid for by the bills of A., and B. agreed to furnish A. with his moiety of the amount in time for the payment of the bills; the Court held that A. might maintain an action against B. for such moiety, notwithstanding there might be an account to be taken between them as partners upon the subsequent disposal of the joint stock. 13 East. 7. So, after the dissolution of the partnership, they may sue each other in the same manner as if they had never been partners, whether the partnership be dissolved by agreement, see 2 T. K. 479, or by bankruptcy, see 1 East. 20, or by lapse of time, provided

they are not hindered from doing so by some clause in their articles of partnership.

Also, one or two joint contractors can never sue the other for a nonperformance of the contract. Thus where A. and B. brought assumpsit as executors against C., and C. pleaded in bar that the promises were made by him jointly with B., the plea was holden good on demurrer. 2 B. & P. 124, n. Consequently if a partnership consisting of A. B. and C. have a cause of action against another consisting of C. D. and E., the former cannot maintain an action against the latter; 6 Taunt. 597; and for this reason: because either C. must join in an action against himself, which would be absurd, or there would be a nonjoinder either of plaintiffs or defendants, which would be fatal.

As to the joinder of joint-tenants, tenants in common, parceners, partners, or joint-contractors, respectively, in actions by them against strangers, see post, p. 45, et seq.

Baron and Feme.] A man cannot sue his wife or a woman her hus. band, in any form of action whatever, for reasons sufficiently obvious. See 17 ed. 3. 20. b. 1 Brown. Ent. 63. And even if one have a cause of action against the other before marriage, their subsequent intermarriage is a release of the action.

As to their actions against strangers: In all real actions for the lands of the wife, the husband and wife must have joined; R. 1 Bulst. 21; so, they must have joined in a writ of waste, Sav. 111, and in a right of ward. Ow. 83. Com. Dig. Baron. and feme. These actions, however, are now abolished. Ante, p. 7. But in a quare impedit, upon an avoidance during coverture, the husband must sue alone. 1 Rol. 347. 1. 30. Per Dy. Ow. 82. Co. L. 351 a. Per two J. Lit. 13. Dub. Lit. 374. Acc. 1 Brownl. 159. 2 Bulst. 14.

In personal actions for a chose in action due to the wife before coverture, they must join: as, in debt on bond or specialty made to *the wife before coverture; 1 Rol. 347. l. 53. D. Ow. 82. Cro. El. 537; or debt for rent due before coverture, upon a lease for years, Cro. El. 700, or upon a lease for life, 1 Rol. 348, l. 8, or upon a lease at will. Co. Lit. 55, b. So, in debt for arrears upon an account, 1 Rol. 348, l. 5, and in assumpsit upon a promise to the wife before coverture, 1 Sid. 25, or for the labour of the wife dum sola, they must join. Also, in an avowry for rent due before coverture, upon a lease for life or years, they must join. 1 Rol. 348, I. 8, 347, 1. 50. Also in actions ex delicto for injuries to the wife or her property before marriage, the husband and wife must join: thus in an action for stopping a way to the wife's land before marriage, R. Cro. Car. 419, or in trover, upon a conversion of the goods of the wife before marriage, they must join. Com. Dig.

Baron and Feme V. see 10 Mod. 25. So, in trespass for an injury done to the property of the wife dum sola, they must join. 3 T. R, 627. But in trover, where the goods were lost before marriage, and the conversion was after, the husband and wife may join, 1 Sid. 172. 1 Vent. 261. 2 Lev. 107, or the husband may sue alone. Per Hale, 1 Vent. 261. 2 Lev. 107. Per two J., 1 Sid. 172. So, in rescous of a distress for a rent charge due before coverture, the husband alone may sue, for it is wrong to him; or the husband and wife may join. R. Cro. El. 459. Mo. 422. So where a bill of exchange was payable to a feme sole, who intermarried before the same was due, it was holden that the husband might sue in his own name without joining the wife, although the latter had not indorsed the bill; 1 Barn. & Ald. 218 or the husband and wife might have joined in the action. Secondly, Where the cause of action arises during coverture.

I.

It is very clear that for injuries to the husband or his property, the action must be brought by the husband alone.

2. For any matter relating to the land which the husband has in right of his wife, the husband and wife may join, or the husband may sue alone. Thus in an action of trespass for a trespass upon the wife's land, during coverture, the husband and wife may join, Dub. 2 Vent. 195. [R. Bunb. 277,] or the husband may sue alone; 2 Vent 195. Rol. 347, 1. 40. R. 1 Bulst. 21. Jon. 376. Jon. 376. In trespass for cutting down trees belonging to the wife, during coverture, the husband, and wife may join, see 1 Rol. 348, 1. 18, or the husband may sue alone. Adm. 2 Vent. 195. So in an action for forcible entry upon, or detainer of the wife's land during coverture, the husband and wife may join, 1 Rol. 348, 1. 20. Mo. 5, or the husband may sue alone. 1 Rol. 347, 1. 27, 28. So, an action on the case against a lessee for years, for burning his house, where the husband has it for the life of his wife, may be by the husband alone, Dub. Cro. El. 461, 2, or by the husband and wife. So an action on the case for cutting down trees, the loppings of which were reserved to the wife for her life, may be by the husband alone, Semb. Cro. Car. 438, or by the husband and wife. R. Cro. Car. 438. So, in an action on the case for stopping a way to the wife's land, they may join, R. Cro. Car. 419, or the husband may sue alone. So for inclosing land in which the wife has common [see 2 Bulst. 14,] or for not grinding at the wife's mill [see 1 Wils. 224,] they may join, or the husband may sue alone. So, in debt on stat. 2 & 3 Ed. 6, b. 13, *for not setting out tithes which the husband his in right of his wife, they may join, R. Cro. El. 608, 613. R. 1 Jon. 325. R. Mo. 912, or the husband may sue alone. Jenk.-So, if a woman lease for years, rendering rent, and afterwards marry, the husband and wife may sue

for rent due after the coverture, or the husband alone may have ana ction of debt for it. Palm. 207. So, if the demise were by the husband and wife after coverture, an action for rent may be brought by the husband alone, Semb. 2 Bulst. 234. Per Yelv. acc. Fleming, contra, 1 Bulst. 21. acc. Lit. 13, [or by the husband and wife. 1 Str. 229.] So an avowry for rent of the wife's lands, accrued during coverture, may be by husband and wife, 1 Rol. 318, l. 30; 347, l. 51. see Win. Ent. 952, or by the husband alone. Semb. 1 Rol. 318, l. 35. R. 2 Cro. 442. Per Twisd. 1 Mod. 273. Clift. Ent. 343, 4. see 1 Bro. Ent. 244. So in an action for a rescous, after coverture, of a distress for a rent charge due before coverture, the husband alone may sue, or he and his wife may join. R. Cro. El. 459; Mo. 422. But in debt fot rent, upon a lease by the husband and wife, after the term expires, R. 2 Bulst. 234. R. 1 Bulst. 21, or upon a demise by the husband alone, though the term continue, [it seems] the husband must sue alone. In detinue of charters of the wife's inheritance, husband and wife may join, 1 Rol. 347, l. 49, [or the husband, it should seem, may sue alone.] So, in trespass for taking charters of the wife's inheritance, 1 Rol. 347, l. 32, or for forging false deeds of the wife's inheritance. 1 Rol. 347, l. 34, the husband may sue alone, [or, it should seem, husband and wife may join.] Com. Dig. Baron and Feme, VWX.

As the personal property of a woman becomes vested in her husband instantly upon her marriage, and as personal property acquired by her afterwards vests also immediately in the husband, he alone can bring an action for any injury to it during coverture; she cannot even join in the action. Thus, a husband and wife cannot join in an action of trover, and declare that they were both possessed of certain goods, and that the defendant converted them, to their damage. Yelv. 165, 166. 1 Salk. 114. So, if tithes belonging to the wife's rectory be taken away, after being severed from the nine parts, the husband alone shall maintain trover for them. Jon. 325. But where goods belonging to a woman are lost before marriage, and the conversion takes place after, the husband and wife may join in trover for them, although the conversion alone is the cause of action; 1 Sid. 172. 1 Vent. 261. 2 Lev. 107; or the husband may sue alone. Per Hale, 1 Vent. 261. 2 Lev. 107. Per 2 J. 1 Sid. 172.

Also, as all benefit from a promise or other contract to the wife, express or implied, during coverture, belongs to the husband, he may bring an action on it in his own name. Thus, he may sue alone in assumpsit for the labour of his wife during coverture; R. 4 Mod. 156. R. 1 Salk. 114; or in debt on a bond made to the wife after marriage. R. 3 Lev. 403. D. Lit. 13. And the same, where the contract is with