Handy v. Foley

Gray, C. J. The instructions were correct. A husband and wife may be jointly sued and charged for a tort done bi both of [261] them, if she does not act by his coercion. Hyde v. S-, 12 Mod. 246;S. C. Holt, 101. Vine v. Saunders, 5 Scott, 359; S. C. 4 Bing. N. C. 96. Marshall v. Oakes, 51 Maine, 308. In Tobey v. Smith, 15 Gray, 535, a declaration in tort in the nature of trover against husband and wife was held bad, merely because it alleged the conversion to have been “ to their own use,” whereas in legal contemplation it could not be to the use of the wife; and it was distinctly stated in the opinion, that, if the conversion had been alleged to have been to his use, the action could have been maintained. And in Heckle v. Lurvey, 101 Mass. 344, it was held that a wife was liable in tort for the conversion of goods of which she obtained possession by her husband’s order. Even in criminal cases, the husband’s mere direction and instigation will not protect the wife from liability for acts done in his absence and beyond his immediate influence and control; and the presumption of coercion, which exists when she acts in his presence, is primd facie only, and may be rebutted. Commonwealth v. Butler, 1 Allen, 4. Commonwealth v. Feeney, 13 Allen, 560. Commonwealth v. Munsey, 112 Mass. 287. Commonwealth v. Lewis, 1 Met. 151,153. State v. Cleaves, 59 Maine, 298. The statement in 2 Kent Com. 149, that, if the wife commits a tort “ in his company or by his order,” he alone is liable, is too general, and must be limited to the case of her acting by his coercion. The evidence of acts done by the husband in the presence of the wife, similar to those done by her in his absence, in execution of the same purpose, was competent to show that the latter were done by his direction and instigation, and therefore in law his acts as well as hers. Exceptions overruled.