Tobey v. Smith
Massachusetts Supreme Judicial Court
Action of tort against husband and wife for the conversion “to their own use” of property of the plaintiff’s intestate; with a count in contract, alleged to be for the same cause of action, and averring that the defendants owed a certain sum of money to the intestate in his lifetime, and to the plaintiff as his administrator. Demurrer on the grounds stated in the opinion, which was sustained by Dewey, J., and the plaintiff alleged exceptions.
1Opinion of the CourtMetcalf, J.
The counts in tort are bad on demurrer, because they allege a conversion by husband and wife to “ their ” own use; whereas a conversion cannot, in legal contemplation be to the use of the wife. Broom on Parties, § 331. 2 Saund. Pl. & Ev. (2d ed.) 1141. 2 Dane Ab. 204. Formerly this was cause for arresting judgment, or for reversing it on a writ of error. But it was decided by the court of king’s bench, in 1820, that a count thus framed was sufficient after verdict. Keyworth v. Hill, 3 B. & Ald. 685. An action of this kind may be maintained against husband and wife, when they jointly convert…
2Cases cited2 opinions
- Grasser v. EckartSupreme Court of Pennsylvania · 1809
- Estill v. FortCourt of Appeals of Kentucky · 1834