
    Miles B. Tobey, Administrator, vs. Gilbert Smith & wife
    A declaration in tort against hnsband and wife, alleging a conversion by them to their own nse, is bad on demurrer.
    A declaration in contract, alleging a joint contract by a husband and wife with a third person, is bad on demurrer.
    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.
    
      I Sumner, for the plaintiff.
    
      J. D. Colt, for the defendants.
   Metcalf, 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 property; 2 Saund. (5th ed.) 47 u, note; Newman v. Cheyney, Latch, 126; or when the wife alone converts it; but the declaration should allege that the conversion was to the use of the husband. See Catterall v. Kenyon, 3 Ad. & El. N. R. 310, and 2 Gale & Dav. 545; Estill v. Fort, 2 Dana, 237.

The count in contract is also bad, because it alleges a contract which cannot legally exist; namely, a joint contract by husband and wife with a third person. See Crasser v Eckart, 1 Binn. 586. Demurrer sustained.  