Heckle v. Lurvey

101 Mass. 344

Opinion

Chapman, C. J.

1. The principle is well settled, that, when a thief sells chattels, even to an honest purchaser, no title passes, and the owner may maintain an action for the property without a previous demand. Dame v. Baldwin, 8 Mass. 518. Stanley v. Gaylord, 1 Cush. 536. Riley v. Boston Water Power Co. 11 Cush. 11. Chapman v. Cole, 12 Gray, 141. Gilmore v. Newton, 9 Allen, 171.

2. There is no legal presumption that acts done by a wife in her husband’s absence are done under his coercion or control. Indeed, if she, in his absence, does a criminal act even by his order or procurement, her coverture will be no defence. Commonwealth v. Butler, 1 Allen, 4. Commonwealth v. Feeney, 13 Allen, 560.

3. For her torts and trespasses during coverture the action must at common law be joint against them both. Bac. Ab. Baron and Feme, L. An action of traver may be maintained against them jointly for the conversion of goods. Draper v. Fulkes, Yelv. 166, and Am. notes. Keyworth v. Hill, 3 B. & Ald. 685.

These principles are decisive of the present case. The goods were stolen by Morss from the plaintiff, and sold to the wife in the absence of the husband. She converted them to her personal use as articles of dress, and a demand by the plaintiff was unnecessary.

The instruction excepted to applying only to the liability of the wife, and no question being made as to the liability of the husband, we have no occasion to discuss the operation of our recent statutes upon a case of this character.

Exceptions overruled.