Foster, J.
By the theory of the common law, the wife’s legal existence is suspended during the continuance of the marriage state. Her property and her civil rights are subjected to her husband’s control. Her fortunes pass by marriage into her husband’s hands. She cannot earn ror herself, nor, in general, contract, sue or be sued in her own right. But, on the other hand, and in order to approximate equality in the system of matrimonial merger and unity, the same common law imposes upon the husband the obligation to pay debts of his wife which he, in fact, never contracted, and makes him answerable to a very great extent, for her wrong doings, by force of a presumption, resting too often in pure fiction, that the wife, in her misdemeanors, acts, not from the promptings of her own mind, but by force of the commands and coercion of him whom she had promised to obey. Concerning which, says Mr. Justice Kent, in Marshall v. Oakes, 51 Maine 310, “ how carefully the fathers studied the first case in point, as recorded in Genesis chap, iii, or some of the subsequently reported cases, where, to common observation, the woman and wife appears as the prime mover in wrong and mischief, we cannot know, and need not discuss.”
The general rule of the common law, then, is, that the husband is liable for the torts of his wife, where the act is done by her alone; and whenever, in such a case, she is sued for a tort, the husband must be joined in the suit. Bac. Ab. Bar. & Feme L.; Com. Dig. Bar. & Feme Y.; 1 Chitty’s Pl. 81; Schouler’s Dom. Rel. 103; Whitmore v. Delano, 6 N. H. 545 ; 2 Kent’s Com. 149 ; Jillson v. Wilbur, 41 N. H. 106 ; Head v. Briscoe, 5 Car. & P. 484; Keyworth v. Hill et ux, 3 B. & Ald. 685.
If the wrongful act of the wife be committed in the presence and by the direction of the husband, he alone is liable. 2 Kent’s Com. 149, Schouler’s Dom. Rel. 103.
The presumption, prima facie, is, that the wife acted under coercion, if the husband was actually present. This presumption arises as well in civil suits for torts, as in criminal cases. But it may be rebutted by facts, showing that the wife was the instigator or more active party ; or that the husband, though present, was incapable of coercion; or, in cases relating to acts of violence, that the wife was the stronger of the two. 2 Hill. Torts 590; Sch. Dom. Rel. 102 ; [319]*3191 Wheaton’s Crim. Law 102-3; 2 Kent’s Com. 150; Com. v. Lewis, 1 Met. 153. In such cases, the responsibility for the wife’s misdoings is not cast upon the husband alone, but they are either liable jointly, or, in certain cases, she alone is made responsible.
And where there are other facts established, besides the presence of the husband, as to the participation of the wife in originating and carrying on the common purpose, which tend to rebut the presumption, it is a question for the jury to determine, whether or not the presumption is overcome. 2 Hill. Torts 590; Marshall v. Oakes, 51 Me. 311.
“ This presumption,” it is said, “ is one of the compensations, or offsets, which the old common law gave, for the benefit and protection of the wife., for its stern and unyielding doctrines in relation to the superior marital rights of the husband, by which the personal property and legal existence of the wife are nearly all lost or merged in her baron or lord.” Marshall v. Oakes, before cited.
And, in any event, so far as the fraud or injury complained of is made the subject of a civil suit, the general principle of the wife’s disability remains the same ; namely, that the husband compensates or receives the compensation. Sch. Dom. Rel. 101.
Mr. Justice Parker, in Whitmore v. Delano, says : “ There seems to have been some diversity of opinion whether the wife is liable to foe sued where the tort is the joint act of the husband and wife.” And the learned judge does not give us the benefit of his own views upon the subject; but we think it may be regarded as settled now, whatever diversity of opinion may have prevailed, that for the joint fraud, tort or criminal act of husband and wife, where the circumstances are such as to rebut the presumption of the husband’s coercion, both may be held jointly liable, civilly or criminally. Thus in Bac. Ab. Bar. & Feme L., it is said : “If goods come to a feme-covert by trover, the action may be brought against the husband and wife ;” but, it is added : “ The conversion must be laid only iu the husband, because the wife cannot convert goods to her own use, but the action is brought against both, because both were concerned iu the trespass of taking them.”
Again, it is said: “ If a trover or conversion of goods be brought against baron and feme, in which it is supposed that they found the goods and converted them to their own use, this is not good ; for, presently by the conversion of the feme, it is to the use of the baron, and not to the use of the feme.” Viner Ab. Bar. & Feme U. But in a note to the text, it is said : “If feme-covert takes my sheep and eats them, trover lies against the baron and feme ; and that there may be a conversion by the Avife to her own use, as Avhere the trover Avas of barley, if she bakes it into bread and eats it herself; and Brampton, Ch. J. (Mich. 15 Car. 1), said that a Avife has capacity to take to her own use. The laying of the comersion ad usum ipserwn, though naughty, is made good by the verdict.
In Keyworth v. Hill et ux, 3 B. & Ald. 685 : Abbott, C. J., in reference to the exception on account of misjoinder, said: “The [320]*320ground of the objection is, that inasmuch as a married woman cannot acquire property, the conversion can be only the act of the husband, and must bo so charged. But the allegation does not necessarily imply acquisition of property, for a conversion may be by actual destruction of the property.
And again: it was saict by the court (Noy, 79), in an action of trover against baron and feme for a conversion by the wife during coverture, that the action was good, “for although a feme-covert cannot make a contract for goods nor be charged for them, yet she may covert them.”
Fawcett v. Beavres and wife, 1 Levinz Pt. 2 p. 63, was case for retaining the plaintiff’s servant, alleging that the defendants’ jointly, “ maclianantes to deprive the plaintiff of the services of said A., retinuerurd,” &c. *
The suit was not maintained, because it appeared that the servant having voluntarily left the plaintiff, remained with the defendants without their entertainment. In a note, the reporter says: “No notice was taken of the action being brought against the husband and wife ; and a feme-covert cannot retain or contract. But, perhrps, the receiving and keeping of him, without contract, are a tresp: ss, of which a feme-covert may be guilty, sufficient to maintain this action against her.” And see Lady Chaworth's Case, 1 Lev. Pt. 1, p. 51.
A joint action of trespass will lie against husband and wife for an assault committed by both. Roadcap v. Sipe, 6 Gratt. 213.
And on indictment, husband and wife are jointly liable for keeping liquor for sale contrary to law, where there is evidence against him, and also evidence of her participation in the offence by acts done in the absence of the husband, and not appearing to have been done by his coercion. Com. v. Tyron,
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Foster, J.
By the theory of the common law, the wife’s legal existence is suspended during the continuance of the marriage state. Her property and her civil rights are subjected to her husband’s control. Her fortunes pass by marriage into her husband’s hands. She cannot earn ror herself, nor, in general, contract, sue or be sued in her own right. But, on the other hand, and in order to approximate equality in the system of matrimonial merger and unity, the same common law imposes upon the husband the obligation to pay debts of his wife which he, in fact, never contracted, and makes him answerable to a very great extent, for her wrong doings, by force of a presumption, resting too often in pure fiction, that the wife, in her misdemeanors, acts, not from the promptings of her own mind, but by force of the commands and coercion of him whom she had promised to obey. Concerning which, says Mr. Justice Kent, in Marshall v. Oakes, 51 Maine 310, “ how carefully the fathers studied the first case in point, as recorded in Genesis chap, iii, or some of the subsequently reported cases, where, to common observation, the woman and wife appears as the prime mover in wrong and mischief, we cannot know, and need not discuss.”
The general rule of the common law, then, is, that the husband is liable for the torts of his wife, where the act is done by her alone; and whenever, in such a case, she is sued for a tort, the husband must be joined in the suit. Bac. Ab. Bar. & Feme L.; Com. Dig. Bar. & Feme Y.; 1 Chitty’s Pl. 81; Schouler’s Dom. Rel. 103; Whitmore v. Delano, 6 N. H. 545 ; 2 Kent’s Com. 149 ; Jillson v. Wilbur, 41 N. H. 106 ; Head v. Briscoe, 5 Car. & P. 484; Keyworth v. Hill et ux, 3 B. & Ald. 685.
If the wrongful act of the wife be committed in the presence and by the direction of the husband, he alone is liable. 2 Kent’s Com. 149, Schouler’s Dom. Rel. 103.
The presumption, prima facie, is, that the wife acted under coercion, if the husband was actually present. This presumption arises as well in civil suits for torts, as in criminal cases. But it may be rebutted by facts, showing that the wife was the instigator or more active party ; or that the husband, though present, was incapable of coercion; or, in cases relating to acts of violence, that the wife was the stronger of the two. 2 Hill. Torts 590; Sch. Dom. Rel. 102 ; [319]*3191 Wheaton’s Crim. Law 102-3; 2 Kent’s Com. 150; Com. v. Lewis, 1 Met. 153. In such cases, the responsibility for the wife’s misdoings is not cast upon the husband alone, but they are either liable jointly, or, in certain cases, she alone is made responsible.
And where there are other facts established, besides the presence of the husband, as to the participation of the wife in originating and carrying on the common purpose, which tend to rebut the presumption, it is a question for the jury to determine, whether or not the presumption is overcome. 2 Hill. Torts 590; Marshall v. Oakes, 51 Me. 311.
“ This presumption,” it is said, “ is one of the compensations, or offsets, which the old common law gave, for the benefit and protection of the wife., for its stern and unyielding doctrines in relation to the superior marital rights of the husband, by which the personal property and legal existence of the wife are nearly all lost or merged in her baron or lord.” Marshall v. Oakes, before cited.
And, in any event, so far as the fraud or injury complained of is made the subject of a civil suit, the general principle of the wife’s disability remains the same ; namely, that the husband compensates or receives the compensation. Sch. Dom. Rel. 101.
Mr. Justice Parker, in Whitmore v. Delano, says : “ There seems to have been some diversity of opinion whether the wife is liable to foe sued where the tort is the joint act of the husband and wife.” And the learned judge does not give us the benefit of his own views upon the subject; but we think it may be regarded as settled now, whatever diversity of opinion may have prevailed, that for the joint fraud, tort or criminal act of husband and wife, where the circumstances are such as to rebut the presumption of the husband’s coercion, both may be held jointly liable, civilly or criminally. Thus in Bac. Ab. Bar. & Feme L., it is said : “If goods come to a feme-covert by trover, the action may be brought against the husband and wife ;” but, it is added : “ The conversion must be laid only iu the husband, because the wife cannot convert goods to her own use, but the action is brought against both, because both were concerned iu the trespass of taking them.”
Again, it is said: “ If a trover or conversion of goods be brought against baron and feme, in which it is supposed that they found the goods and converted them to their own use, this is not good ; for, presently by the conversion of the feme, it is to the use of the baron, and not to the use of the feme.” Viner Ab. Bar. & Feme U. But in a note to the text, it is said : “If feme-covert takes my sheep and eats them, trover lies against the baron and feme ; and that there may be a conversion by the Avife to her own use, as Avhere the trover Avas of barley, if she bakes it into bread and eats it herself; and Brampton, Ch. J. (Mich. 15 Car. 1), said that a Avife has capacity to take to her own use. The laying of the comersion ad usum ipserwn, though naughty, is made good by the verdict.
In Keyworth v. Hill et ux, 3 B. & Ald. 685 : Abbott, C. J., in reference to the exception on account of misjoinder, said: “The [320]*320ground of the objection is, that inasmuch as a married woman cannot acquire property, the conversion can be only the act of the husband, and must bo so charged. But the allegation does not necessarily imply acquisition of property, for a conversion may be by actual destruction of the property.
And again: it was saict by the court (Noy, 79), in an action of trover against baron and feme for a conversion by the wife during coverture, that the action was good, “for although a feme-covert cannot make a contract for goods nor be charged for them, yet she may covert them.”
Fawcett v. Beavres and wife, 1 Levinz Pt. 2 p. 63, was case for retaining the plaintiff’s servant, alleging that the defendants’ jointly, “ maclianantes to deprive the plaintiff of the services of said A., retinuerurd,” &c. *
The suit was not maintained, because it appeared that the servant having voluntarily left the plaintiff, remained with the defendants without their entertainment. In a note, the reporter says: “No notice was taken of the action being brought against the husband and wife ; and a feme-covert cannot retain or contract. But, perhrps, the receiving and keeping of him, without contract, are a tresp: ss, of which a feme-covert may be guilty, sufficient to maintain this action against her.” And see Lady Chaworth's Case, 1 Lev. Pt. 1, p. 51.
A joint action of trespass will lie against husband and wife for an assault committed by both. Roadcap v. Sipe, 6 Gratt. 213.
And on indictment, husband and wife are jointly liable for keeping liquor for sale contrary to law, where there is evidence against him, and also evidence of her participation in the offence by acts done in the absence of the husband, and not appearing to have been done by his coercion. Com. v. Tyron, 99 Mass. 442. See also, Roscoe’s Crim. Ev. (2d Ed.) 879 ; 1 Russ. Crimes (7th Am. 2d) 20, 21; 2 Hill. Torts 590; 2 Kent’s Com. 149 ; Keyworth v. Hill, 3 B. & Ald. 688 ; Vine v. Saunders, 4 Bing. N. C. 96 ; 2 Saund. Pl. & Ev. 194.
And it is clearly established that the general principle that for the fraud or other tort of a married woman an action may be maintained against her and her husband, applies only to torts simplidter, or cases of pure and simple tort, and not where the substantive basis of the fraud is the contract of the wife. Keene v. Hartman, 28 Pa. St. 497.
In the present case there was abundant evidence from which the jury might have found the active participation of the wife in the ■wrongful and fraudulent conversón to their own joint use of the money received by her from the plaintiff, in known and intended violation of her agreement to keep or to loan it for him.
But the question before us relates to the joint liability of the defendants, in assumpsit.
Whether the plaintiff might have maintained trover in the present case, it is immaterial to inquire. He has seen fit to waive the tort, if any has been committed, and to bring his action in assumpsit for money had and received.
[321]*321In some instances a party defrauded and in whose favor an action of trespass or trover is an appropriate reinedy may waive the tort and proceed in assumpsit. The doctrine, as recently declared in this state, is this : “that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrong doer sell the goods and receive the money, waive the tort, affirm the sale, and have an action of money had and received tor the proceeds.” Smith v. Smith, 43 N. H. 538; Mann v. Locke, 11 N. H. 246; Jones v. Hoar, 4 Pick. 285 ; Glass Co. v. Walcott, 2 Allen 227 ; Woodbury v. Woodbury, 47 N. H. 22.
And, in this case, the disposition of the plaintiff’s money by the defendants to their own uses, by loans taken in their own names, might perhaps ho deemed sufficiently analagous to a sale for their own benefit of property converted, to bring the case within the principle permitting the election of remedies ; but the doctrine has no application to the case of husband and Avife jointly liable in trover, and cannot be applied in subversion, as it manifestly Avould lie, of the rule of the common Lvw that “an action upon an assumpsit by husband and wife, against both is bad; for qoad the Avife, the promise is void.” Com. Dig. Bar. & Feme T. This rule is as old as the feudal system upon Avhich the common Iuav regulating the condition of husband and wife is founded, and modern legislation has not yet assailed it: See Kent’s Com. 149; Sch. Dom. Rel. 74.
In accordance Avith this fundainenlal maxim, it is held that “a man shall not have an action of debt against baron and feme upon contract made by them.”
“Writ of .covenant does not lie against baron and feme, upon covenant made by them by deed indented.”
“A man shall not have action upon obligation made by them íavo.”
“Writ of detinue does not lie against barou and feme, upon goods coming to their possession by trover.” Vin. Ab. Baron & F., U.; Lawes on Pl. in assumpsit, 461.
‘ Tn covenants and leases respecting rep tirs and rents that accrued after the marriage, the Avife cannot be made liable ; for the obligation that arises under such a contract is transferred-to the husband.” Reeves Dom. Rel. 136.
Says Mr. Ch. J. Spencer: “No principle is better settled than that the Avife can in no case be sued upon a mere personal contract made during coverture, whether joined Avith her husband or not, unless the husband be civil iter mortaus, or banished or transported.” Edwards v. Davis, 16 Johns. 286.
A married woman is not bound by a covenant of warranty in a deed in Avhich she has joined with her husband in the conveyance. Wadteigh v. Glines, 6 N. H. 17.
In Priest v. Pinkham, 18 N. H. 520, Mr. Ch. J. Parker quotes the language of Tilghman, C. J., in Grosser Eckart, 1 Binney 575, as follows : “The defendants, man and Avife, are jointly charged upon an assumption made to them to the plaintiffs in consideration of [322]*322money had and received by them for the use of the plaintiff. Here is an attempt to charge a married womam on a contract made by her jointly with her husband duriug the coverture. This is not warranted by any precedent or principle that 1 have heard of. A married woman cun make no contract.”
And Ch. J. Parker adds : “The authorities on this point are abundant and conclusive.” These views are recognized in the subsequent cases of Bailey v. Pierson, 29 N. H. 77 ; Ames v. Foster, 42 N. H. 381 and Shannon v. Canney, 44 N. H. 592 : And see Rawlings v. Bell, 1 C. B. 268; Edwards v. Davis, 16 Johns. 281.
Misjoinder, in an action against husband and wife, may be taken advantage of by general demurrer. May v. House et ux, 18 Eng. Com. Law 854; 1 Chitty Pl. 44, 92.
The verdict must, therefore, be set aside, and there must be
Judgment on the demurrer for the defendants.