CHILTON, J.
The sole question for our consideration is, whether the Circuit Court, properly admitted so much of the deposition of Elizabeth Paris, to be read to the jury, as [381] shows that Catharine Vaught, the wife of James B. Vaught, pointed out the two slaves given in part consideration of the note sued on, to the soldiers under the command of Gen. Scott, and required them to take possession of them. The solution of this question must depend on the legal effect of the evidence which was admitted.
The proof shows that James B. Vaught was the owner of three slaves, besides others, which he acquired in right of his wife Catharine, from the estate of her father, the same having been duly delivered to him by the personal representative of the estate: That he sold the said three slaves to the defendant and received the note sued on, a portion of which has been paid and credited upon said note, the name of said James being first signed to said credit, but afterwards stricken out, and the name of the present plaintiff inserted. The slaves were delivered to the defendant, who kept them for some time, and being informed by the vendor that he had better remove them out of the Cherokee Nation, as he might have some difficulty in regard to them when the Government should remove the Indians, he refused to do so. It was also shown in evidence, that said Catharine, who belonged to the Cherokee tribe of Indians, and the said James B. Vaught, lived unhappily together, and before the emigration' of the tribe by the Government to Arkansas, had separated. During the preparation for the removal of said Indians, and when the said James B., and wife were living separate (he residing in the State of Tennessee, studying medicine,) the said Catharine went with the witness, whose deposition was objected to, and pointed out two of the slaves which had been sold by her husband, and claiming them as her property, induced the soldiers to take charge of them. The note given, as before stated, in consideration of the three slaves, had been previously assigned, but whether the defendant had any notice of the assignment before the slaves were so seized, does not appear by the record.
According to our statute, the defendant is entitled “ to the benefit of all payments, discounts and sets-off, made, had or possessed against said note, previous to notice of the assignment” — Clay’s Digest, 383, § 6. Keeping in view this statute, let us enquire as to the character of the defence. It is clear [382] that the property in the slaves vested by the sále in the defendant, and the contract, so far as James B. Vaught was concerned, was complete — neither is there any question raised between the parties, as to the right of the soldiers, or Mrs. Vaught, to seize upon the two slaves; but it is conceded that the act was unauthorised and tortious. The question then as to the admissibility of the deposition of Elizabeth Paris, resolves itself into this : Is the trespass or tortious act of the wife, in which the husband did not in any way participate, such a discount or set-off, as under the statute above refered to, may be made available to the defendant when sued by the assignee of the note ?
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CHILTON, J.
The sole question for our consideration is, whether the Circuit Court, properly admitted so much of the deposition of Elizabeth Paris, to be read to the jury, as [381] shows that Catharine Vaught, the wife of James B. Vaught, pointed out the two slaves given in part consideration of the note sued on, to the soldiers under the command of Gen. Scott, and required them to take possession of them. The solution of this question must depend on the legal effect of the evidence which was admitted.
The proof shows that James B. Vaught was the owner of three slaves, besides others, which he acquired in right of his wife Catharine, from the estate of her father, the same having been duly delivered to him by the personal representative of the estate: That he sold the said three slaves to the defendant and received the note sued on, a portion of which has been paid and credited upon said note, the name of said James being first signed to said credit, but afterwards stricken out, and the name of the present plaintiff inserted. The slaves were delivered to the defendant, who kept them for some time, and being informed by the vendor that he had better remove them out of the Cherokee Nation, as he might have some difficulty in regard to them when the Government should remove the Indians, he refused to do so. It was also shown in evidence, that said Catharine, who belonged to the Cherokee tribe of Indians, and the said James B. Vaught, lived unhappily together, and before the emigration' of the tribe by the Government to Arkansas, had separated. During the preparation for the removal of said Indians, and when the said James B., and wife were living separate (he residing in the State of Tennessee, studying medicine,) the said Catharine went with the witness, whose deposition was objected to, and pointed out two of the slaves which had been sold by her husband, and claiming them as her property, induced the soldiers to take charge of them. The note given, as before stated, in consideration of the three slaves, had been previously assigned, but whether the defendant had any notice of the assignment before the slaves were so seized, does not appear by the record.
According to our statute, the defendant is entitled “ to the benefit of all payments, discounts and sets-off, made, had or possessed against said note, previous to notice of the assignment” — Clay’s Digest, 383, § 6. Keeping in view this statute, let us enquire as to the character of the defence. It is clear [382] that the property in the slaves vested by the sále in the defendant, and the contract, so far as James B. Vaught was concerned, was complete — neither is there any question raised between the parties, as to the right of the soldiers, or Mrs. Vaught, to seize upon the two slaves; but it is conceded that the act was unauthorised and tortious. The question then as to the admissibility of the deposition of Elizabeth Paris, resolves itself into this : Is the trespass or tortious act of the wife, in which the husband did not in any way participate, such a discount or set-off, as under the statute above refered to, may be made available to the defendant when sued by the assignee of the note ?
The seizure of the two slaves by the soldiers was a matter wholly disconnected with the contract of sale, which had long-before that time been fully executed by the vendor. The original sale cannot therefore be affected by it, upon the idea of a failure or partial failure of consideration. As to allowing the proof, as showing a demand existing in favor of the defendant against James B. Vaught for the tortious act or trespass of his wife, we are aware of no principle of law which would tolerate it. In the first place, the damages which the defendant sustained by the trespass are unliquidated, and must be ascertained by the jury before they can be made certain. McCord v. Williams & Love, 2 Ala. Rep. 71; Sherman v. Ballow, 8 Con. Rep, 304. But conceding this to be no objection, then another principle, which is well settled, comes up to exclude it, which is, that the demand must be due from the plaintiff to the defendant — 6 Cow. 261; 9 Porter’s Rep. 452, that is, the defendant can not set-off a joint liability against his separate liability. Now allowing the defendant the benefit of all defences he could render available as against James B, Vaught, were he instead of William Vaught the plaintiff, we think it very clear, that the demand which the defendant claimed, as predicated upon the seizure of the two slaves, was not one which he could assert as against James B. Vaught alone, but that in such suit the wife, Catharine Vaught, would be an indispensable party. It is said, if goods come into the possession of husband and wife during cover-ture, he may be sued alone in detinue for the detention, 3 B. «fe Aid, 685-689; Com. Dig. Tit, Baron & Feme, Y. Brown [383] on Actions ta Law, 249; but in this case they have never come to the husband’s possession. The general rule is, that for all torts committed by the wife alone, in person, the husband and wife must both be sued. Bacon’s Ab. Baron & Feme, L.; Brown on Action, 249; 35 Law Lib. (3 series) 182; so the action must be brought against both, if the wife entice away, or harbor a servant. See authority last cited; 1 McCord, 578. Mr. Chitly says, that for torts committed by the wife during coverture, the husband and wife must be jointly sued; but if goods be delivered to husband and wife during coverture, det-inue lies only against the husband. — 1 Chity’s Pl. 92-3. So it has been held that in action for the tort of the wife, committed without her husband, the plaintiff cannot unite in the same declaration a tort committed by the husband alone: ib. 2 Wils. 227, The bill of exceptions sets out all the proof on both sides, and from it, it does not appear that the negroes ever came to the possession of either husband or wife, since the wife “ handed them over” to the soldiers in her husband’s absence, as shown by the deposition of Paris. The wife has lived apart from her husband from a period anterior to the trespass — she emigrated with her tribe to Arkansas, and he, living with another woman, removed to Texas. The negroes were in possession of the soldiers under command of Gen. Scott, and were demanded of the latter by the defendant, who refused to give them up, and here the proof leaves them. Now we have been unable to find any adjudicated case, or any legal analogy-furnishing a warrant for holding, that the tortious act of the wife under the circumstances of this ease, can create such a charge against the husband as will constitute a set-off or discount in favor of his vendee when sued in an action at law upon the note given for said slaves. The learned counsel have refered us to the case of Estill and wife v. Fort, 2 Dana’s Rep. 237. This decision is but an affirmation of the doctrine laid down by Sergeant Williams in his note appended to the case of Welbrahan v. Snow, 2 Saund. Rep. 37-47, P. who thus states the law. “ If a woman has been guilty of a conversion before her marriage, or a wife, without her husband converts goods during coverture, this action (trover) lies against husband and wife; in the former case, the declaration must state the conversion to be to her own use; unless the sub[384] ject matter is in existence, and the husband refuse to deliver it up on demand, in which case the course of precedents seems to warrant the laying of the conversion to their own use; and in the latter case, the conversion must be laid to the use of the husband only; however, if the conversion be the joint act of the husband and wife, it seems the action may be brought against the husband alone; for the conversion in such case is held'in law to be the act of the husband only.” He further proceeds to say, that the action is well brought against husband and wife charging a delivery to them and a conversion by them to the use of the husband, because a wife may be guilty of a conversion as well as of a trespass or disseizin, but not to her own use. From all which, it seems to me to result, that where the husband has been guilty of no tort, or wrongful detention, and is sought to be charged for the wrongful act of the wife, solely upon the ground of that unity which by legal fiction attaches to the marital relation, the action must be against husband and wife, and not against the husband alone. See McKown and wife v. Johnson, 1 McCord, 578; 2 Baily 411. If this principle be well founded; it results that as the demand existing against husband and wife cannot be set-off against a debt due from the husband alone, (Morris v. Booth and wife, 8 Ala. Rep. 908; 10 Bar. & Cres. 558,) the proof of the existence of such demand was irrelevant and should have been rejected by the Circuit Court. There is no defect of title in this case, as supposed by the counsel. The title was goocPit seems, and vested absolutely in the defendant. His possession has been disturbed by the trespass of the wife, for which- he has his action for damages against husband and wife, but, as wre have shown, not against the husband alone.
In respect to the last point raised by the counsel for the defendant in error, viz, that the contract was rescinded, we need only remark, that the record shows no rescisión of this contract, and that the wife by her unauthorised act, done wholly without the privity of the husband, has no power to rescind his contracts, any more than she has to make contracts for him. See authorities refered to, 2 U. S. Digest, 500, B.
Whether, if the wife have possession of the slaves, and this note has been assigned without consideration, as is contended [385] by the counsel, the defendant has not a remedy in a court of equity, the said James B. Vaught being a non-resident and insolvent, is a question which we need not now decide.
Let the judgment be reversed, and the cause remanded.