Randall v. Eastern Railroad Co.

instead thereof, instructed them "that the defendants would be liable if, as between them and the plaintiffs, they were solely at fault; that, if the jury found that the female plaintiff was in the exercise of ordinary care, and the defendants had negligently failed to maintain proper protection to travelers, at the place of the accident, and the injury was caused solely by such failure, as between them and the plaintiffs, the negligence of any other person or corporation, not a party to the suit, and not imputable to the female plaintiff, contributing to the accident, would not prevent the plaintiffs from being entitled to a verdict, or constitute a defense; and that the fact, that there was or was not a light near the bridge, was important, as affecting the question whether the female plaintiff was in the exercise of due care." The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.

S. B. Ives, Jr., for defendants.

T. H. Sweetser (W. S. Gardner with him), for plaintiffs.

GRAY, J. The exception taken in this case is founded solely upon the alleged negligence of the city of Charlestown to provide proper lights at the place in question. But cities and towns are under no obligation to light highways. Sparhawk v. Salem, 1 Allen, 30; Macomber v. Taunton, 100 Mass. 255. It does not, therefore, appear that there was any evidence that the negligence of the city of Charlestown, or of any other corporation or person than the defendants, contributed to the accident. The question sought to be presented by defendants' requests for instructions does not appear to have arisen in the case, and the defendants show no ground of exception to the instructions given, as applied to the case on trial. Exceptions overruled.

O'Brien v. Barry.

O'BRIEN AND WIFE, plaintiffs, v. BARRY.

(106 Mass. 300.)

Malicious prosecution.

A husband and wife commenced an action for a malicious replevin of his household furniture, alleging that the replevin suit was commenced with intent to injure the wife, and actually resulted in her injury by the removal of the furniture. It appeared that the replevin suit was still pending. Held, that the action could not be maintained.

ACTION in tort by John O'Brien and wife against Michael M. Barry. The opinion states the case. Verdict for defendants. Plaintiffs alleged exceptions.

W. W. Warren, for plaintiffs.

T. H. Sweetser and N. C. Berry, for defendants.

MORTON, J. At the trial, the plaintiffs offered to prove, in substance, the following facts: That the defendant maliciously and without probable cause, having no title to the goods replevied, sued out a writ of replevin against the male plaintiff, and caused the officer to replevy and remove the furniture of the plaintiffs; that he did this for the purpose of injuring the female plaintiff; and that she was thereby greatly injured. It was admitted that the replevin suit was pending at the time this action was commenced. The question is, whether, upon these facts, if proved, this action can be maintained.

It is an action of a novel character, but some of the rules which govern actions for malicious prosecutions apply to it, and are decisive of the question raised. If an action of this nature can be maintained at all, it is obvious that it can only be upon proof that the plaintiff in the former action, which is alleged to be malicious, had not a legal cause of action. If he had, it would be his right to enforce it by the remedies provided by law, and he would not be liable for any injuries which might incidentally result, although he acted with malice. In so doing, he commits no unlawful act for which an action will lie against him. Lindsay v. Larned, 17 Mass

VOL. VIII. — 42

Brown v. Wellington.

190; Randall v. Hazelton, 12 Allen, 412. The question whether Barry had a legal cause of action was involved in, and, we think, as between these parties, could only be tried in, the replevin suit. The male plaintiff, being a party to that suit, would be bound by its result. If Barry had recovered a judgment in that suit, this action could not be maintained, because it would thus be conclusively settled that his act in replevying the goods was lawful. Any irregularity in the service of the writ of replevin must be taken advantage of in that suit, or it must be deemed to have been waived. The fact that this suit is for an injury to the wife does not take the case out of the operation of this rule. It is one of the incidents of the marriage relation that the husband must join in such suit. It is substantially his suit; he can discharge it, and is entitled to the proceeds if judgment is recovered. Southworth v. Packard, 7 Mass. 95.

In an action for malicious prosecution, the plaintiff must show that the prosecution or suit complained of has been terminated by a judgment in his favor. In that suit only can the question, whether the defendant had a good cause of action against the plaintiff, be litigated. The reasons of the rule apply with equal force to an action like the present. It is against the policy of the law that the same questions should be litigated between the same parties in successive suits. At the time this action was commenced, the replevin suit, which is alleged to be malicious and without probable cause, was pending; and a majority of the court is of opinion that, if the plaintiffs can, under any circumstances, maintain an action of this nature, this fact is decisive against this action. Johnson v. Shove, 6 Gray, 498.

Exceptions overruled.

BROWN, plaintiff, v. WELLINGTON.

(106 Mass. 318.)

Tenants in common-purchase from co-tenant.

Plaintiff and B. were tenants in common of land, plaintiff being in occupation. Defendant bought standing grass of plaintiff, to be paid for when cut and harvested. Held, that defendant could not avoid paying plaintiff the con. tract price, when due, on the ground that B. forbade payment.

Brown v. Wellington.

ACTION on contract, to recover the price of grass sold by plaintiff to defendant. The case was submitted on the following agreed facts:

"The plaintiff and Henry A. Brown, on July 5, 1869, were, and for a long time had been, seized in fee, and been in possession, as tenants in common, in equal shares, of a lot of land in Waltham, and, previously to said day, the plaintiff brought a petition for partition thereof against Brown, which was pending on the day when this suit was brought, and continued pending some time afterward. On said day, the defendant bargained with the plaintiff for the grass then standing on the premises, and agreed to pay him $20 therefor when the same was cut and harvested. Afterward the defendant cut and harvested the grass, and the plaintiff called on him on a Saturday for the money. The defendant told the plaintiff to call on the Monday following and he would pay him. He did call on the Monday following, when the defendant refused to pay him, Brown having in the mean time forbidden his paying the plaintiff."

If the court should be of opinion that on these facts the plaintiff could, in his own name, maintain the action, he was to have judgment for such sum as he was entitled to recover, and otherwise judgment be entered for the defendant.

T. Carlton, for plaintiff.

C. A. Welch, for defendant.

COLT, J. It is not necessary here to consider what the law is, as applicable to an action brought by one tenant in common of personal property to recover the full price of such property, sold by him without the consent of his co-tenant. The plaintiff's interest in the standing grass here sold was not that of a tenant in common of a specific chattel. He was tenant in common of real estate, and the property sold was part of the annual product of the soil. His right to deal with it as his own is governed by the law which regulates the rights of tenants in common, in the occupation and improvement of their land, and which is founded on that unity of possession which is the chief incident of such tenancies. The plaintiff had the right to the sole occupation of the premises owned in common, unless his co-tenant chose to occupy with him. If he took the whole profits, by the old rule of the common law, his co-tenant would have had

Rhoades v. Blackiston.

no remedy against him. Afterward, by the statute of 4 and 5 Anne, chapter 16, section 27, an action of account charging him as bailiff might be maintained in favor of the co-tenant, provided he had actually received more than his share of all the rents and profits of the estate. Mere exclusive occupation under the statute was not enough. Sargent v. Parsons, 12 Mass. 149; Badger v. Holmes, 6 Gray, 118. An action of assumpsit lies in these cases, by repeated decisions in this commonwealth. Shepard v. Richards, 2 Gray, 424; Munroe v. Luke, 1 Metc. 459.

For all that appears in the statement of facts, the plaintiff alone occupied and improved the whole estate. If he occupied jointly with his co-tenant, it does not appear that his co-tenant has not received his share of the profits from some other product of the estate. At all events, the cutting of the grass by the plaintiff's authority, and the sale and delivery of it by him to the defendant, was an appropriation of it which gave the plaintiff a good title to the whole of it, so far as this defendant is concerned; and it is no defense to this action that the co-tenant, after it was cut and removed, forbade the defendant to pay for it. Calhoun v. Curtis, 4 Metc. 413; Peck v. Carpenter, 7 Gray, 283.

Judgment for the plaintiff for the amount claimed in the writ, with interest from the date of the writ.

Principal and agent — bankruptcy of agent — effect on contracts with third

persons.

To the plea that the plaintiff is a bankrupt, and that all his estate vested in his assignees, it is a good replication that the whole beneficial interest in the contract or demand in suit was vested, by prior assignment, in a third party, for whose benefit the suit is prosecuted.

In an action for an alleged breach of contract, it appeared that the plaintiff made the contract, in his own name, in the course of a business which he was car rying on for L., and which he had previously transferred to L. as security for a debt with the agreement that L. should furnish all the capital, and receive