49 N.Y. 192, Kowing v. Manly

Citation49 N.Y. 192
Party NameFRANCIS KOWING, Appellant, v. WASHINGTON MANLY et al., Respondents.
Case DateApril 16, 1872
CourtNew York Court of Appeals

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49 N.Y. 192

FRANCIS KOWING, Appellant,

v.

WASHINGTON MANLY et al., Respondents.

New York Court of Appeal

April 16, 1872

Argued Feb. 20, 1872.

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[Copyrighted Material Omitted]

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COUNSEL

F. N. Bangs for the appellant. The wife was not, by virtue of the marital relation merely, authorized to reduce his choses in action to her possession. ( Etherington v. Parrott, 1 Salkeld, 118; Offley v. Clay, 3 Com. Bench, N. S., 372; Wellingham v. Simonds, 1 Dessaussure Eq. Rep., 272; 2 Parsons on Contracts, 615.) Though qualifiedly liable for the tort, he is not guilty of it, but she is. His liability was to put a stress upon him to fulfill her, not his, obligations. (1 Chitty's Pleadings, 12 Am. ed., 92, 93; Bacon's Abr., Baron and Femme, L; Coke Littleton, 351 b; Comyn's Digest, Baron and Femme, Y; Reeve's Dom. Rel., 3d ed. [ 72], 144, 149; 1 Rolle, 351; Rep. Tem. Hardwicke, 399; Levinz, 122; Cullen, 392; Cro. Car., 376; 1 Hawkins P. C., b. 1, ch. 1, § 9; 3 Blackstone, 414; 2 Kent, 150; Capel v. Powell, 17 C. B., 748; Goulding v. Davidson, 26 N.Y. R., 604.) The husband, at common law, was not liable for the torts of the wife; but he was joined only by reason of the universal rule that the wife, during coverture, could not be either a sole plaintiff or a sole defendant. ( Capel v. Powell, 17 C. B., 748; Hyde v. S-----, Holt's Rep., 101; Langstaff v. Rain, 1 Wilson, 149; Anonymous, 3 Id., 124; Larkin v. Marshall, 4 Exchequer Rep., 805; Newton v. Boodle, 9 Q. B., 948; Sparkes v. Bell, 8 B. & C., 1; Mitchinson v. Hewson, 7 Term Rep., 350; Angel v. Felton, 8 Johns., 149; Gage v. Reed, 15 Id., 403; Horton v. Payne, 27 How. P. R.; Marsh v. Potter, 30 Barb., 506.) Where one tort is set up as a cause of action, another tort on the part of the plaintiff is no defence. ( Hayes v. Peddle, 1 Sand., 284.) The second finding is not a subject of counter claim or set off, as the wife is not a party. ( Bates v. Rosekrans, 37 N.Y. 412.) It is not available as recoupment, as it is not connected with the subject-matter of the action. ( Cram v. Dresser, 2 Sand., 120; Sedgwick on Dam., 4th ed., 510 [[444]; Nichols v. Dusenbury, 2 N.Y. R., 286;

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Vassar v. Livingston, 13 N.Y. 257.)The finding is not available to defendants upon the principle of avoiding circuity of action. That principle applies only where parties are identical, damages equal, and the claims belong to the same class. ( Charles v. Alden, 15 Com. B.; Speeding v. Young, 16 Com. B. [ N. S.], 829; Alston v. Herring, 11 Exchequer, 831; Stimson v. Hall, 1 Hurlston & N., 831; Marshall v. Oakes, 5 Id., 793.) The husband is not always, even qualifiedly, liable for the tort of the wife. ( Assn. v. Fairhurst, 9 Exchequer, 422; Gurney v. Kenny, 2 E. D. Smith, 132.) Under the act chapter 90, Laws of 1860, plaintiff's wife would be liable in a separate action. ( Etherington v. Parrott, 1 Salk., 118; Gurney v. Kenny, 2 E. D. Smith, 132.)

S. P. Nash for the respondents. Evidence of a person competent to judge whether a writing is in the genuine hand of he who wrote it, or is an attempt by some person to imitate the hand of another, is admissible. ( Lansing v. Russell, 3 Barb. Ch. R., 325; People v. Hewit, 2 Park. Cr. R., 20; Modey v. Rowell, 17 Pick., 490; Commonwealth v. Carey, 2 Id., 47; Lyon v. Lyman, 9 Conn., 55; Hully v. Vantheric, 7 S. & R., 185; Lodge v. Phipher, 11 Id., 333.) At common law the possession of personal property by the wife is the possession of the husband. ( Ball v. Bell, Ala. Select C., 465.) A delivery to wife is a delivery to the husband. ( Machen v. Machen, 15 Ala., 373; McDaniels v. Whileman, 16 Id., 343; Mason v. McNeil, 23 Id., 214, 217; Walker v. Fenner, 28 Id., 367; Clancy H. & W., 1, 2. 3.) If plaintiff's wife obtained possession wrongfully, her conversion was to the use of her husband. (Bacon's Abr., Baron and Femme, L; 2 Saunders, 47; Saunders' Pl. & Ev., 870; Bing. on Cov., 257.) An action would lie by the defendants against both plaintiff and his wife, to recover the same sum which the plaintiff in this action seeks to recover against the defendants. (1 Chitty Pl., 92; 1 Parsons on Cont.; 1 Stephens, N. P., 746; Holden v. Payne, 27 How. Pr. R., 374; Solomon v. Waas, 2 Hilton C. P., 179; McQueen's Husb. and Wife, 43 Law Lib. [ N. S.], 125, 126, etc.;

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Reeves' Domestic Rel., 3d ed., Parker's Notes, 148, 149, marg. 72, 73; Goulding v. Davidson, 26 N.Y. 604; Tait v. Culbertson, 57 Barb., 9; Hovey v. Starr, 42 Id., 436; Schaus v. Putscher, 25 How., 463; Porter v. Morant, 45 Barb., 426; Ross v. Smith, 55 Id., 418; Valentine v. Lloyd, 4 Abb. [N. S.], 371; Peak v. Lessian, 1 Lans., 302.) The husband's person and property could be charged in execution. ( Solomon v. Waas, 2 Hilt., 179.) This liability is an answer here. (3 C. & P., 484; 3 Q. B,, 310; 9 Exch., 422.) To prevent circuity of action, the law will bar...

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