Kowing v. Manley — 13 Abb. Pr. 276

Majority

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KOWING against MANLEY.

Court of Appeals;

April, 1872.

Headnote

Reversing 57 Barb., 479 .

Authority of Wife to Act for Husbaud. — Liability of Husbaud for Wife’s Torts.—ACTION AGAINST HUSBAUD AUD WlFE.

A husband having deposited with his bankers certain bonds, with directions to deliver them only on his written order, his wife, by a forged order, obtained the bonds. In a suit by the husband against his bankers to recover their value,—Held, that under the circumstances, the possession of the wife was not the possession of the husband, and that the rule that a husband was responsible for the wife’s torts, would not prevent a recovery.

To render a husband liable for a conversion committed by his wife, without his being jointly concerned, it must appear that the goods actually came to his use.

The rules applicable to pleading and evidence in actions for wrongs committed by married women, stated.^[1]

Francis Rowing sued Washington Manley and another, in the supreme court, to recover the value of nine United States bonds of one thousand dollars each. On the trial it appeared that defendants, who were brokers, bought these bonds for plaintiff, who left them in their keeping, with directions not to deliver them except on his written order. That the wife of the plaintiff had thereafter obtained the bonds on an order purporting to be made by her husband. Evidence was given to show that this order was forged; and in reply to specific questions the jury found that the order was forged and that the bonds were fraudulently obtained by

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plaintiff's wife. The jury also rendered a general verdict for the plaintiff, which by the court at general term was set aside and judgment ordered for the defendants. Reported in 57 Barb., 479 . A previous decision is in 2 Abb. Pr. N. S., 377.

Plaintiff appealed to the court of appeals.

John Sedgwick and F. N. Bangs, for plaintiff, appellant.

I. Leaving the alleged fraud of the wife out of view, the defendants’ refusal to deliver to the husband upon his demand was not excused by the previous delivery to the wife; nor was the defendants’ duty to deliver to the husband extinguished, released, or fulfilled by the delivery to the wife, because (1.) 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 Salk., 118; Offley v. Clay, 2 Com. Bench N. S., 373; Wellingham v. Simons, 1 Dess. Eq., 272; 2 Pars. on Cont., 615). Cases may be cited which use the phrase that delivery to the wife is delivery to the husband ; but those are cases in which the delivery was of property belonging to the wife as distributee or legatee, and it is there said that the delivery to the wife was such a reduction to his possession as enabled his personal representatives to retain it as against the wife. (2.) If a general agency in the wife might be presumed, the presumption is rebutted by proof of the written order restricting such agency.

II. No view of the marital relation has ever been adopted in either English or American jurisprudence which sanctions the idea that the wife’s tort is the husband’s tort; although it is conceded to be his misfortune, that for such tort he is, while living and not bankrupt, liable, jointly with her, to suit, judgment, execution and imprisonment. ” The characteristics of a husband’s liability for his wife’s torts were and are the

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following. (1.) It never was a several liability. (2.) It cannot be asserted against him, while she is in life, without her being made a party defendant jointly with him. (3.) After her death or divorce, before judgment, lie is not liable at all. (4.) Her liability continues after her husband’s death or bankruptcy. (5.) 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 Tier, not his, obligations (1 Chitty Pl., 12 Am. ed., 92, 93; Bac. Abr., Baron and Femme, L; Coke Litt., 351 b; Comyn Dig., Baron and Femme, Y; Reeve's Dom. Rel., 3 ed. (72), 144, 149; 1 Rolle, 251; Rep. tem. Hardwicke, 39 9; Levinz, 122; Cullen, 392; Cro. Car., 376; 1 Hawkins P. C., b. 1, ch. 1, § 9; 3 Blacks., 414; 2 Kent, 150; Capel v. Powell, 17 C. B., 748 ; Goulding v. Davidson, 26 N. Y., 604 ). Hasbrouck v. Weaver ( 10 Johns., 247 ), has been used as authority for suing husband, as sole defendant, for a penalty incurred by his wife’s act. But such is not the meaning of the case. The husband was held liable solely because the act of the wife was in that case his act. She was his agent. The court said: “ The sale by the wife of the defendant, in his house, was a sale by the defendant, for which he must be deemed responsible in a civil suit, as for his own act.” In Broom on Parties to Actions (40 Law Lib. N. S., 186, 274 b), it is written: ‘ ‘ Where goods have been converted by a feme covert by an act implying a transfer of property in them, and not amounting to a total destruction, it seems that trover may be brought against the husband alone, for the conversion is in law the act of the husband, and cannot, in legal contemplation, be to the use of the wife” (Citing Berry v. Nevys, Cro. Jac., 551, and 2 Wms. Saunders, 47 t). This is a misapprehension of the cases cited in the book. It is said in 2 Wms. Saunders, ed. of 1846, 47 t: “However, if the conversion be the joint act of husband and wife, it seems

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that the action may be brought against the husband alone ; for the conversion is held in law to be the act of the husband only.” This, too, is the case of Berry v. Nevys (Cro. Jac., 661). The declaration was in trover: “ Supposing that they,” that is, together or jointly, “ converted them to their proper use.”

III. The reasons why the husband had to be joined in an action against the wife were that “during coverture, the wife had no such existence as to enable her to be a suitor in her own right; neither could she be sued alone. For any wrong committed by her she was liable, and her husband could not be sued without her. Seeing that all her personal property was vested in the husband, it would be idle to sue the wife alone. The action- would be fruitless. When the husband was joined for conformity, if he died, the action went on against the wife, but if the wife died, the action abated. It is clear to demonstration, therefore, that there was no cause of action against the husband. He was not liable for the wrong, 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, 101; Langstaff v. Rain, 1 Wils., 149; Anonymous, 3 Id., 124 ; Larkin v. Marshall, 4 Exch., 805; Newton v. Boodle, 9 Q. B., 948; Sparkes v. Bell, 8 B. & C., 1; Mitchinson v. Hewson, 7 T. R., 350; Angel v. Felton, 8 Johns., 149 ; Gage v. Reed, 15 Id., 403; Horton v. Payne, 27 How. Pr., 374 ; Marsh v. Potter, 30 Barb., 506 ).

IY. The nature of and the reasons for the right and duty of a party aggrieved to join the husband “/or conformity,” distinguished the husband’s liability from that of joint wrong-doers. In the latter case,either might be sued alone. But neither the husband nor the wife could be sued alone for the wife’s tort.

Y. Upon the maxim, cessante ratione legis, cessat ipso lex, the husband’s liability to be joined as a de

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fendant ought not to survive the late changes effected in this State by law, regarding the marital relation. In Rowe v. Smith, decided in this court, March 28, 1871, it is said that “the recent statutes leave unaffected this liability of the husband for the strictly personal torts of the wife.” It is submitted, that this is said obiter. But if it be so, the husband has certainly not become severally liable. If it be not so, it must be because the wife has become so liable.

VI. Assuming that the finding of the jury is satisfactory evidence of the wife’s liability, still such finding is unavailable to the defendants, even upon the principle of avoiding circuity of action, because (1.) They have not pleaded any act or liability of the wife —they have only pleaded the act of the husband. (2.) Circuity of action is only avoidable where the parties plaintiff are identical with those against whom the defendant’s suit would lie ; where the damages on one side are just equal to those on the other ; and where the cross-claims belong to the same class of actions (Charles v. Alden, 15 C. B.; Speeding v. Young, 16 C. B. N. S., 829; Alston v. Herring, 11 Exch., 831; Stimson v. Hall 1 Hurls. & N., 831; Marshall v. Oakes, 5 Id., 793).

James Emmot and S. P. N ash, for the defendants respondents.

I. The judge erroneously refused to receive testimony from an expert, as to whether the order was in a feigned or simulated hand. This witness was acquainted with the plaintiff’s handwriting This is not the same thing as comparison of hands or an opinion formed by such comparison, which was rejected in People v. Spooner, 1 Den., 343 . Evidence of a person competent to judge whether a writing is in the genuine hand of the person who wrote, or is an attempt by some person to imitate the hand of another is inadmissible (Lansing v. Russell, 3 Barb. Ch.,

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325 ; People v. Hewit, 2 Park. Cr., 20 ; Modey v. Rowell, 17 Pick., 490 ; Commonwealth v. Carey, 2 Id., 47; Lyon v. Lyman, 9 Conn., 55 ; Hully v. Vantheric, 7 Serg. & R., 185 ; Lodge v. Phipher, 11 Id., 334 ).

II. The bonds, when delivered to the wife, in the view of the law came to the possession of the plaintiff; whether the wife had authority to receive the same or not,- the delivery to her was, in law, a delivery to him. The principles of the common law control the matter ; and the relation of these parties is to be determined by the rules of the common law applicable to husband and wife. A wife at common law cannot possess personal property ; her possession is the possession of her husband (Per A. J. Walker, Ch. J., in Ball v. Bell, 1 Ala. Sel. Cas. 465). “ A delivery to the wife is a delivery to the husband, and the possession of the wife is the possession of the husband.” (Machen v. Machen, 15 Ala., 373 ; McDaniel v. Whiteman, 16 Id., 343; Mason v. McNeil, 23 Id., 214-217; Walker v. Fenner, 28 Id., 367). And this is so, even if the wife obtains possession by conversion. If therefore, in this case the wife obtained possession wrongfully from defendants, her conversion was in law to the use of her husband, because her possession is his possession. (Bac. Abr., Baron and Femme, L; 2 Saunders, 47, i; Saunders Pl. & Ev., 870; Bingham on Coverture, 257). If, therefore, as a matter of law, by the possession of the wife the husband was in possession, he cannot maintain this action to recover possession of the defendants, or the value of the property.

III. If the wife obtained these bonds on a forged order, then she was guilty of a tort, for which the husband is liable, and an action would lie by the defendants against both plaintiff and his wife, to recover the same sum which the plaintiff in his action seeks to recover against the defendants (1 Chitty Pl., 92; 1 Pars. on Cont.; 1 Stephens N. P., 746; Horton. v

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Payne, 27 How. Pr., 374 ; Solomon v. Waas, 2 Hilt., 179; McQueen Husb. & W., 125, 126; Reeves Dom. Rel. 72, 73; Goulding v. Davidson, 26 N. Y., 604 ; Tait v. Culbertson, 57 Barb., 9 ; Hovey v. Starr, 42 Barb., 435 ; Schaus v. Putscher, 25 How. Pr., 463 ; Porter v. Mount, 45 Barb., 426 ; Rowe v. Smith, 55 Id., 418; Valentine v. Lloyd, 4 Abb. Pr. N. S., 371; Peak v. Lemon, 1 Lans., 302 ). The husband could be charged in execution on the judgment, and both by person and by his property held to satisfy the claim (Solomon v. Wass, 2 Hilt., 179). His liability for the tort, in and of itself, is an answer to his ability to have a claim founded on that tort. If otherwise it would work an absurdity in the law (See also 3 Carr. & P., 484; 3 Q. B., 310 ; 9 Exch., 422).

IV. To prevent circuity of actions, the law will bar the plaintiff’s recovery ; for it is a rule, that if the facts upon which the plaintiff relies to recover will charge him, and create a liability on his part to the same amount, the court will prevent his recovery. (Broom’s Maxims, 309, and cases cited in 5th Am. ed.; Walmesbury v. Cooper, 11 Ad. & E., 221; 15 Com. B., 62; Carr v. Stephens, 9 Barn. & C., 758; Simpson v. Swan, 3 Campb., 291-293; Turner v. Davies, 2 Wm. Saunders, 150, note 2; Xenia Bank v. Lee, 7 Abb. Pr., 372 ; Brown v. Buckingham, 21 How. Pr., 190 ; Schubart v. Harteau, 34 Barb., 447 ; Briggs v. Briggs, 20 Id. 477 ). In an action for tort for the conversion by the wife, brought by the defendants, the suit would be against both husband and wife. The law of 1862 does not permit her to be sued alone for her torts ; her position is now as at common law, and the provisions of that act only apply to cases where she can sue alone.

V. Although an action for a tort of the wife lies against the husband and wife jointly, the tort is the tort of the husband ; he is taken in execution, and his

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property must answer for the damages. . The rule requiring her to be joined is merely a rule of practice.

The plaintiff having instructed the defendants not to deliver his bonds to any person except upon his written order, the delivery of them without such order, even to the plaintiff’s wife, did not operate as a discharge of the defendants obligation to the plaintiff as bailees (1 Stark., 104). The inference of authority on the part of the wife to act as agent for the husband, which in some cases may be drawn from circumstances, is negatived in the present instance by the written instructions given by the plaintiff to the defendant.

But, independently of any question of agency, it is claimed on the part of the respondents, that because at common law the wife’s possession of a chattel was deemed the possession of the husband, the delivery of the bonds to' the plaintiff’s wife was equivalent to a delivery of them to the plaintiff.

At common law a married woman could not own personal property. The title to all chattels owned by her at the time of marriage, or acquired by her after-wards, vested in the husband, and her manual possession of them enured to his benefit. This was the right of the husband, which he could assert. It attached to all property which she rightfully acquired, and to all of which she possessed herself by his authority, ' or with his co-operation. But she had no power to thrust such constructive possession upon him by her own wrong, not sanctioned by him, or to make him responsible for it against his will and without his knowledge. If she, without his authority, purchased property (not necessaries) he was not responsible for it, though delivered to her, unless it came to his use, or some assent on his part was shown (Montague v. Benedict, 3 Barn. & C., 631; Bentley v. Griffin, 5 Taunt.,

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356; Metcalfe v. Shaw, 3 Camp., 22; Etherington v. Parrot, 1 Salk., 118.

If the delivery of chattels to the wife were in law a delivery to the husband in all cases, a tradesman need never have been at a loss for a remedy against the husband for goods delivered to his wife, nor put to proof that they came to his use. So of a payment to the wife of a debt due to the husband. According to the rule as claimed, the delivery of the money to the wife would be a delivery of it to the husband, and he ought not to be permitted to demand payment a second time. But no such effect was given to a payment to the wife. It did not bind the husband unless some authority to her to receive it as his agent appeared (Thrasher v. Tuttle, 22 Me., 335 ; Offley v. Clay, 2 Man. & G., 172).

As the delivery of property to the wife without the assent of the husband would not create a direct liability from him to the party delivering it, it would seem clear that it would not discharge a previously existing liability from such party to the husband. The cases cited by the counsel for the respondents, in illustration of the proposition that the possession of the wife is the possession of the husband, are all cases in which the possession of the wife was lawful, and the husband or his representatives claimed the benefit of it. Those cases hold that the wife cannot acquire title to chattels by adverse possession as against the husband (Ball v. Bell, 1 Ala. Sel. Cas., 465). That the title to slaves in possession of the wife, under a bequest, vests in the husband and survives to him, her possession being his (Macken v. Macken, 15 Ala., 373 ; Walker v. Fenner, 28 Id., 367). So of money in possession of the guardian of the wife ( 16 Ala., 343 ). But in all these cases the wife had acquired a property in the chattels, which the law transmitted to the husband. Lord Coke in Co. Litt., 351, b, points out this dis

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ti notion. He says : “ As to personal goods there is a diversity worthy of observation between a property in them and a bare possession ; and that if personal goods be bailed to a feme, or if she find goods, or if goods come to her hands as executrix to a bailiff, and she taketh a husband, this bare possesion is not given to the husband, but the action of detinue must be brought against husband and wife.”

The husband is, at common law, liable to be sued jointly with his wife, for all torts committed by her prior to or during the coverture, and hence where she has wrongfully taken and converted personal property of another, the action must be against both husband and wife, though he be in fact innocent of any wrong, and never received any part of the property (Cro. Car., 254; Cro. Jac., 5). The liability of the husband in such a case does not rest upon the ground that he is in contemplation of law guilty of the taking or conversion, but results from the incapacity of the wife to be sued without. her husband (Capel v. Powell, 17 C. B. N. S., 744). Where the husband and wife jointly took and converted goods, though both were liable for the wrongful act of taking them, the conversion was the act of the husband only and was to his use only (Berry v. Nevys, Cro. Jac., 661; Keyworth v . Hill, 3 Barn. & A., 685; Bingh. on Infancy & Cov., 258 ; Marshes’ Case, 1 Leon., 312; Rhimes v. Humphreys, Cro. Car., 254). A feme with her husband cannot convert to the use of the wife, but all is done to the use of the husband (Perry v. Diggs, Cro. Car., 494). And it is said in 2 Saunders, 47 s. t., ed. of 1846, that where the wife before coverture had converted goods, if they remained in existence and the husband refused to give them up on demand, this was a conversion by him for which an action would lie against him alone. But 1 apprehend that it must be understood in this statement that-the goods had come

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under the control of the husband so that he could de liver them. All the authorities cited to show that in actions of trover against husband and wife, the conversion should be alleged to be by the husband, are cases where the husband and wife have jointly committed' the wrong, or the property has come to his possession. So much of the cause of action as was founded upon the acquisition of property by the wrongdoer was against the husband alone. He could not convert property to the use of his wife ; but she could aid him in taking it, and enabling him to convert it to his own use. The conversion was by the husband only and only to his use (Cro. Jac., 661; Cro. Car., 254, 494). And the action for the conversion might have been brought against the husband alone (2 Wms. Saunders, 47 s. t.). But the action so far as it is founded upon the wrong done to the plaintiff by depriving him of his property, lies against both husband and wife when both are guilty. Therefore trover may be brought against husband and wife, where she was concerned (Marshes’ Case, 1 Leon., 312). The conversion in such case is by the husband alone, but the action lies against both, because both were concerned in the trespass of taking them. (Bingh. on Infancy & Cov., 257, 258).

In the earlier cases cited, judgments in actions of trover against husband and wife for a joint conversion, were reversed, because the declarations averred that the conversion was to their uses, instead of alleging it to be to the use of the husband; but in the later case of Keyworth v. Hill (3 Barn. & A., 685), a declaration in trover against husband and wife averring that the defendants converted the property to their own use, was held good, after verdict, on the ground that trover would, lie for a temporary conversion by the husband and wife where no property was acquired by the wrongdoer, as when it was destroyed or passed over to another, and of that the wife might be guilty as

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well as the husband, and that after verdict it would be intended that the conversion was of that character.

In all these cases it will be observed the husband was alleged to have participated in the wrongful act. But a married woman might alone be guilty of a conversion, and although the husband was a necessary party to the action, the allegation should be that she coverted the property, and in such a case on writ of error in the exchequer chamber, a plea that the defendants were not guilty was held, after verdict, to have tendered an immaterial issue, and that the issue should have been only that the wife was not guilty, and a repleader was ordered (Coxe v. Cropwell, Cro. Jac., 5; Slater v. Franks, Hobart, 126).

I have found no case in which the husband has been held individually liable as upon a conversion by him to his own use, when the property was wrongfully obtained by the wife and he was not jointly concerned in the taking, or the goods did not actually come to his use.

In the presnt case there was no evidence showing what became of the bonds after their delivery to the plaintiff’s wife, or what disposition she made of them. It was not shown that they continued in her possession, or even that they remained in existence. She may have immediately passed them over to another, in which case there was no conversion to his use (Keyworth v. Hill, 3 Barn. & A., 685; Cro. Jac., 5). No facts were proven upon which, if the bonds had been the property of the defendants, an action for their conversion could have been maintained against the husband alone under any of the authorities cited.

The ancient rules to which reference has been made, governing actions for goods wrongfully obtained by a married woman, are founded upon the common law doctrines, that a married woman could not acquire or own personal property. How far they are applicable

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under the existing laws of this State, I have not deemed it necessary to discuss, as I am satisfied that even under the old law, the evidence and findings would not establish a conversion of these bonds by the plaintiff, nor any liability for them on his part, other than that of being joined with his wife in an action for the tort committed by her.

It is claimed, however, on behalf of the respondents, that the husband being liable for the tort committed by his wife, in fraudulently obtaining the bonds, he cannot maintain an action founded on such a tort.

The unsoundness of this position consists in the assumption that the liability of the husband to be joined with his wife in an action for her wrong, is equivalent to a guilty participation by him in that wrong, or is founded upon the idea that her act is considered as his. Such is not the nature of his liability. He is not joined as a defendant on the ground that her guilt is imputed to him, but because, so long as the marital relation continues, the wife is incapable of being sued alone (Capel v. Powell, 17 C. B. N. S., 744, and his liability continues only so long as the relation of marriage exists (Ib.).

In trover against husband and wife, for goods converted by the wife, the reason assigned for holding a plea, that the defendants were not guilty, to be bad, was, that “no tort is supposed in the husband, and the issue should be only that she is not guilty” (Cox v. Cropwell, Cro. Jac., 5; Slater v Franks, Hobart, 126).

If, after the commission of a tort by a married woman, she should be divorced, or the husband should die, the action could be brought against her alone, and if the death of the husband occurred pending an action against both, it would survive against the wife. But if she should die before or pending the action it would not survive against the husband.

This could not be if her wrong were imputed to

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Mm, or if he were in law unqualifiedly responsible for it.

But it is further contended, that in this case the wife having obtained the bonds from the defendants by a fraud, and they being entitled to maintain an action against both husband and wife for this wrong, the same facts upon which the plaintiff relies to recover here, would charge him in that action for the same amount, and that, therefore, to prevent circuity of action, the law will bar a recovery by him.

We do not think that the present case falls within the principle of avoiding circuity of action, to which the respondents refer in support of this claim.

When the circumstances are such that the defendant, if compelled to pay the demand of the plaintiff, would immediately be entitled to recover back from him the identical amount, it is well settled that to avoid circuity of action, this cross liability will be allowed to operate as a defense (Carr v. Stephens, 9 Barn. & C., 758; Simpson v. Swan, 3 Camp., 291; Culkson v. Stones, 1 E. & E., 248; Schloss v. Heriot, 14 C. B. N. S., 64.

But this rule can be invoked only when the parties; opposed in interest are the same (Walmesley v. Cooper, 11 Ad. & E., 216). A covenant by the plaintiff not to sue the defendant may be set up in bar of the action, but a covenant by A. not to sue C. cannot be set up in bar of an action by A. and B. against C.

A liability of the plaintiff jointly with another, cannot be set up as a bar to a claim due Mm individually, nor can a conditional or defeasible liability bar one which is absolute and unconditional. A liability of one in a representative capacity cannot be set up against a demand belonging to him in his own right. To bring the case within the common law rule, the liability of each party must be the equivalent of that of the other ( 15 C. B., 62 ; 16 C. B. N. S., 829;

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2 H. & N., 793; 1 Exch., 831; Beecham v. Smith, E. B. & E., 452).

It is very clear that in this case the liability of the plaintiff is very different in its nature and extent from that of the defendants. Their liability to him is absolute and unconditional. Should they die it would survive against their personal representatives. Should the plaintiff die it would survive in favor of his, but his cross liability would not survive against his representatives. The liability of the defendants is to the plaintiff alone. That of the plaintiff is only that of being joined with his wife as defendant, and this only so long as the marital relation continues. He can in no event be sued alone. If the wife has any separate estate, or should acquire one with the proceeds of the bonds, the judgment might be enforced against such estate to the discharge of the husband’s. In case of the wife’s dying or being divorced before judgment, the plaintiff’s liability to the defendants would cease, while that of the defendants to the plaintiff would continue.

To allow this defense would be equivalent to enforcing a right of action against the husband alone, for tort committed wholly by the wife, which cannot be done.

We think that the evidence offered to prove that the order produced by the defendants was not in a simulated handwriting was properly rejected. The plaintiff had not introduced any evidence to show that it was in a simulated handwriting, but had testified to the fact that it was not written by him. It was incumbent upon the defendants to prove that the order was in the handwriting of the plaintiff, and we do not think that, as the evidence stood, the opinion of an expert, that the signature was not in a simulated handwriting, was competent for the purpose of establishing that it was the plaintiff’s.

In the cases cited ( 3 Barb. Ch., 325 ; and 17 Pick.,

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490 ), for the purpose of proving that a mark or signature was not genuine, evidence of experts was admitted ' to show that the writing was simulated.

The only case cited, in which evidence was admitted to show that the writing was not simulated, is that of People v. Heriot ( 2 Park. Cr., 20 ), where, on the trial of an indictment for forgery, the prisoner was allowed to prove, by an expert, that the signature was not in a simulated handwriting. Whatever effect might be given to such evidence on a criminal trial for counterfeiting or forgery, as to which we express no opinion, we do not think it competent for the purpose of proving affirmatively the genuineness of a signature against a party sought to be charged thereby.

The judgment appealed from should be reversed, and judgment entered for the plaintiff, on the verdict, with costs.

All the judges concurred.

Judgment reversed, and judgment ordered for plaintiff, on the verdict, with costs.