by the solvent partners, together with the Trustee PARTNERS. or Trustees of the bankrupt partner or partners (o). The explanation of this rule, in reference to actions. ex contractu (p), is applicable to actions ex delicto. An action for tort can, however, sometimes be brought by a solvent partner and the Trustee, when it could not have been maintained by the solvent partner and the bankrupt if the latter had remained solvent, for the Trustee's title relates or dates back to the act of bankruptcy, and he, therefore, can often treat dealings of the bankrupt as null. The Trustee can also treat as void some acts of the bankrupt, on account of their fraudulent character. Hence, if A. and B. are partners, and B., after he has committed an act of bankruptcy, indorses a partnership bill, such indorsement confers no title on the indorsee, and A. and B.'s Trustee, can bring an action against the indorsee for it (q). So, where A. and B. were partners, and B. fraudulently indorsed certain bills of exchange belonging to the partnership to X., in payment of a private debt, X. being aware of the fraud, it was held on B.'s bankruptcy, that the assignees might disaffirm the transaction as a fraudulent preference, and join with A. in an action against X. (r). As the Trustee of a bankrupt becomes a tenant in common (s) with the solvent partner of the property of the firm whereof the bankrupt was a member, he frequently is unable to make use of the doctrine of relation, in order to recover the bankrupt's interest in goods which have been sold by the solvent partner after the commission of the act of bankruptcy (t). That is to say, if A. and B. are partners, and after the (0) See as to unincorporated companies, p. 161, ante. (p) See pp. 159–161, ante. (g) Thomason v. Frere, 10 East, 418. (r) Heilbut v. Nevill, L. R. 4 C. P. 354. (s) See p. 160, ante. (t) Fox v. Hanbury, Cowp. 445; Smith v. Stokes, 1 East, 363; Buckley v. Barber, 6 Ex. 182; 2 Lindley, Partnership, 2nd ed., 1118-1123. PARTNERS. Commission of an act of bankruptcy by B., A. sells partnership goods to X., B.'s Trustee can sue neither A. nor X. for the value of the goods, though if B., not being in partnership, and after the commission of an act of bankruptcy sold goods to X., who knew of the act of bankruptcy, the Trustee could, even though X. had paid for the goods, bring an action of trover against him. CHAPTER XXII. HUSBAND AND WIFE. RULE 86.-A husband and wife must sue jointly in three cases: 1. For injuries to the person, character, or property of the wife, committed before marriage; 2. For injuries to the person or character of the wife committed during coverture; and, 3. For injuries for which the wife must sue as executrix or administratrix (a). For all wrongs done to a woman before marriage (b), she and her husband must sue jointly during coverture. If, for example, X. assaults B., an unmarried woman, or trespasses upon her land, or appropriates her goods, and B. afterwards marries A., an action for the wrong must be brought in the joint names of A. and B. The action is in fact brought by B., and A. is joined merely (to use the technical expression), for the sake of conformity; i. e., to comply with the rule that a married woman cannot sue alone. The same rule, it would seem, applies, if X. libels B., or slanders her before. marriage. If, however, the slanderous expressions are not words actionable in themselves, but actionable only (a) See Bullen, Pleadings, 3rd ed., 338, 339. For the explanation of the rule, that a wife cannot during coverture sue without her husband, and of the exceptions thereto, see pp. 170-174, ante. The rule and the exceptions apply as well to actions for tort as to actions on contract. (b) Milner v. Milnes, 6 T. R. 627, 631. See Lush, Practice, 3rd ed., 158; Bullen, Pleadings, 3rd ed., 339. HUSBAND WIFE. RULE 86. CASE 1. Injuries to wife before marriage. HUSBAND AND WIFE. CASE 2. Injuries to person during coverture. because they cause damage, and the damage results from them after the marriage, A., the husband, must apparently sue alone (c). To the rule under consideration, there are to be found one or two apparent exceptions. As "all the personal chattels of the wife [vest] by the marriage in the husband, where goods bailed or come to the hands of another before marriage are detained afterwards, the husband may sue alone as on his own possession (d). . . . If a nuisance be erected before marriage and continued afterwards, producing a temporary damage to the husband, he alone may sue (e). If a feme sole possessed of a term for years in a close has in right thereof a way through an adjoining field, and the owner obstructs the way by building on it, and the feme marries, the husband may maintain an action for the continuance of the obstruction (f)." (g). But in these and like cases the husband's right to sue alone depends upon an injury to him taking place after the marriage, e. g., by the continuance of the obstruction to the right of way, and it is often the case that there may be two actions, one in the name of the husband and wife for the original wrong, and another in the name of the husband only for the continuance of it (h). With respect to injuries to the person of the wife during coverture, the husband and wife must join in suing. But the wrongful act, e. g., an assault upon the wife, may involve two distinct wrongs, and thus give two distinct causes of action. The first is the assault upon the wife, and the second is the damage caused thereby (c) The offence sued for is here in reality the causing of damage by certain slanderous expressions, and as this injury is not committed until the damage is caused, i. e., until after the marriage, it affords no real exception to the principle, that a wife must join in an action for wrongs done to her before marriage. Compare Saunders v. Edwards, 1 Sid. 95; Coleman v. Harcourt, 1 Lev. 140, cited Saville v. Sweeny, 4 B. & Ad. 514; Selwyn, N. P., 13th ed., 245; and see Backhouse v. Bonomi, 9 H. L. C. 403. (d) Blackburne v. Greaves, 2 Lev. 107. (e) Frosdick v. Sterling, 2 Mod. 269. (h) Ibid. (through loss of service), to the husband (i). The husband cannot sue alone merely for the injury to the wife, but he may sue alone for the damages occasioned thereby to himself solely. On the other hand, the husband and wife cannot in an action brought solely for the injury to the wife, claim compensation for the injury to the husband from the loss of the wife's services. In order to obtain full compensation, two actions used to be necessary; one by the husband and wife for the injury to the wife; another, by the husband alone for the damage caused thereby to him. By the Common Law Procedure Act, 1852, s. 40, " in any action brought by a man and his wife for an injury done to the wife, in respect of which she is necessarily joined as coplaintiff, the husband may add thereto claims in his own. right; and separate actions brought in respect of such claims may be consolidated, if the Court or a judge shall think fit; provided, that in the case of the death of either plaintiff, such suit, so far only as relates to the causes of action, if any, which do not survive shall abate." This section is not imperative, and after a recovery in the joint action for the injury to the wife, the husband may bring a separate action for his claim in his own right in respect of the same injury (j). The claims which the husband may add in his own right, are not limited to those which arise consequentially from the injury to the wife (k), (l). In like manner, in an action for slander of the wife, if the words are actionable per se, the husband and wife must join for the direct injury (m); but the husband must sue alone for consequential damage (n); and so also, if the words are not actionable in themselves, but only because (i) See pp. 325-329, ante. (j) Brockbank v. Whitehaven Junction Rail. Co., 7 H. & N. 834; 31 L. J. 349, Ex. (k) Hemstead v. Phænix Gas Co., 3 H. & C. 745; 34 L. J. 108, Ex. (1) Bullen, Pleadings, 3rd ed., 338. (m) Dengate v. Gardiner, 4 M. & W. 5. (n) Ibid. HUSBAND AND WIFE. |