Gibson vs. Gibson. For the appellant, a brief was filed, signed by P. G. Stroud and L. Crouch as his attorneys, and by A. Scott Sloan, of counsel, and the cause was argued orally by Mr. Stroud and Mr. Sloan. C. C. Remington, for the respondent. COLE, J. This was an action for defamation, by words imputing to the plaintiff, a female, want of chastity, or charging her with being a common prostitute. When the action was commenced, the plaintiff was unmarried and under twentyone years of age. She afterwards married the son of the defendant. After answer, the defendant and the husband of plaintiff applied, by sworn petition and affidavit, to the circuit court where the action was pending, stating or representing that the plaintiff was then over twenty-one years of age, and was the wife of one of the petitioners, and asking that the title of the cause be changed, that the husband be made a party plaintiff, and that the suit be thereafter prosecuted in the names of the husband and wife. The circuit court changed the title of the suit by inserting the married name of the plaintiff, but denied the application to make the husband a party plaintiff. The question presented at the outset on the record is, whether this ruling is not fatal to the judgment, for the reason that the husband was a necessary party plaintiff to the action. We think the question must be answered in the affirmative. The alleged slanderous words were actionable per se (Benaway v. Conyne, 3 Pin., 196; Ranger v. Goodrich, 17 Wis., 78; Mayer v. Schleichter, 29 id., 646), and the law, as we understand it, is as stated by Mr. Townshend, in his work on S. & L., § 301, that "for language actionable per se, published concerning a married woman, or concerning a woman who afterwards marries, the action should be brought in the name of the husband and wife. In such a case the damage is to both plaintiffs, and the right of action, in case of the death of Gibson vs. Gibson. the husband, survives to the wife; but if the wife dies before verdict, the action abates. For language concerning a married woman, but actionable only because of special damage to the husband, the husband must sue alone." Substantially the same rule was laid down in Benaway v. Conyne, supra, by WHITON, J., when considering an objection to the declaration in that case to the effect that it did not show that the plaintiffs were married when the slanderous words were uttered. He says: He says: "Without stopping to inquire whether this is a fair or a hypercritical construction of this averment, we are entirely of opinion that it is entirely immaterial, for the purpose of sustaining this action, whether the plaintiff's were inarried before or since the words were uttered. Our criminal code punishes both adultery and fornication, and if Mrs. Conyne was unmarried, she could have maintained an action in her own name against the defendant for speaking the words set out in the declaration. Miller v. Parish, 8 Pick., 384. And her marriage, after the words were spoken, to her present husband, would make it necessary to join him as a plaintiff in the suit." pp. 201-2. Mr. Starkie lays down. the rule in substantially the same way. 1 Starkie on Slander, p. 349. See also 1 Chitty's Pl., 11th Am. ed., 74; Beach v. Beach, 2 Hill, 260; Beach v. Ranney, id., 309; Johnson v. Dicken, 25 Mo., 580. In Beach v. Beach, supra, the action was brought by the wife, while living apart from her husband, under articles of separation, in the names of her husband and herself, for slanderous words spoken of her. It was held that a release of the cause of action, given by the husband after suit was commenced, was a bar to the recovery. In other cases of torts committed to the wife, as an assault and battery or other actionable wrongs to her person, where the suit is brought in the lifetime of the husband, he must be made a party plaintiff (Barnes v. Martin, 15 Wis., 240; Kavanaugh and wife v. The City of Janesville, 24 id., 618), and the damages, when collected, belong to him. Reeve's Domestic R el., Gibson vs. Gibson. 63. If the wife survives, she may sue the wrongdoer for any injury to her person or property, the same as if she had been sole when she received it. 1 Chitty's Pl., supra. It was argued by the learned counsel for the plaintiff, that, under the laws of this state in regard to the rights of married women, the wife might maintain an action for slander concerning her without joining her husband, and that the damages, when recovered, would belong to her as her separate estate. We were not, however, referred to any statute which gives her that right, or which assumes to place her on the footing of a feme sole in respect to such injuries; and we certainly know of none. In New York it is expressly enacted, that "any married woman may bring and maintain an action in her own name, for damages, against any person or body corporate, for any injury to her person or character, the same as if she were sole; and the money received upon the settlement of any such action, or recovered upon a judgment, shall be her sole and separate property." Sec. 7, ch. 90, Laws of 1860. Of course there can be no doubt about her right to maintain an action for slander where such a statute exists. And under certain circumstances she is allowed by statute in Pennsylvania to maintain an action for defamation without the joinder of her husband. Rangler v. Hummel, 37 Pa. St., 130. Our statute secures to the wife her separate property, and protects her in its enjoyment, as though she were a feme sole. She therefore may bring an action in her own name for a trespass to her real or personal property during coverture. Boos v. Gomber, 23 Wis., 284. But the statute does not enact that a cause of action on a personal tort to the wife, either before or after coverture, shall be deemed her property; nor does it declare that the damages recovered in such an action shall be her separate estate. It would be a forced and unnatural construction of the statute to give it such an interpretation. A right of action for slander does not survive the death of the party injured, — actio personalis moritur cum persona; and this ་ Gibson vs. Gibson. court decided in Noonan v. Orton, 34 Wis., 259, that an action for a personal injury was not a chose in action, within the meaning of the bankrupt law, which passed to the assignee. It was not assignable at common law, either in law or equity. The statute plainly relates to what is property in the proper sense of the term; that which may be held, used, assigned conveyed and devised; it defines the rights of the wife in respect to such property, but does not attempt to remove all the disabilities of coverture. Consequently it was held by this court, in effect, in Barnes v. Martin et ux. and Kavanaugh et ux. v. The City of Janesville, supra, that in actions for personal injuries to the wife, both the husband and wife should join, because both were interested in the subject matter of the action, though the damages, when recovered, belonged to the husband. Therefore, in the case before us, we are very clear that the husband was a necessary party, as the damages recoverable in the action would belong to him; and the circuit court erred in not granting his application to be made a party plaintiff. The wife could not prosecute the suit in her own name; nor do we think there is anything in ch. 135, R. S., which changes the law on the subject. In our investigations we found the decisions in Berger v. Jacobs, 21 Mich., 215, and Leonard v. Pope, 27 id., 145, where it is held that a married woman may maintain an action in her own name, without joining her husband, for a slander concerning her, or an assault and battery committed upon her, during coverture, and that the damages, when recovered, became her separate property. The statute of Michigan in regard to the rights of married women is substantially like our own, and the authority of so able and respectable a court as the supreme court of Michigan is entitled to great consideration. But nevertheless we think the construction which we have given our statute is the correct one, and that it is not in accord with either the spirit or intent of that enactment to hold that the right to recover damages for personal injuries Gibson vs. Gibson. to the wife should stand upon the same ground as a chose in action or a pecuniary claim or right accruing to her during coverture, and that such damages, when recovered, would constitute and become her individual property. We are unable to believe that it was the purpose of the legislature to make such a change in the law; for if it had been the purpose, we think quite different language would have been used in the statute to make that intention clear. We therefore cannot adopt the view which the supreme court of Michigan has taken of the effect of this legislation. It follows from these views, that the judgment of the circuit court must be reversed, and the cause be remanded for further proceedings according to law. By the Court. - So ordered. On motion for a rehearing, plaintiff's counsel argued that Noonan v. Orton, 34 Wis., 259, cited in the above opinion, is inapplicable in this case, (1.) Because that case turns entirely upon the extent to which the general term, " choses in action," in the bankrupt law, is "restricted by other words therein," and merely holds that, in consequence of those restrictive words, a right of action for a personal injury does not pass by a general assignment in bankruptcy; and (2.) Because, as that case arose under a statute which provides for taking property from the former owner and vesting it in another, while this case arises under a statute for allowing property to remain in its former owner, the terms of the former statute should be construed strictly, while those of the latter should be construed liberally. ALLEN, J., in Sherman v. Elder, 24 N. Y., 381, 384; Blackw. T. T., 737, and cases there cited. In accordance with this rule of liberal interpretation applied to the Married Woman's Act, it has been held, without any express statutory provision to that effect, that the wife, simply in consequence of her ownership and right of control, may sue alone in matters affecting her property, or, if she chooses, may |