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because he had given direction so to carry to minors and himself escape liability if on the business as not to allow the refuse the agent violates the law in this regard; from the works to fall into the river, he that the offense was complete when such was not liable on the indictment for a nui- sale was made under and by virtue of the sance caused by the acts of his servants; license, and in the line of the respondent's that he must have given to his servants or business as licensee, and it was immaterial agents all the authority that was incident whether the act was done by the licensee to the carrying on of the business; and that himself or by his servant; that when he it was necessary to prove only that the nui- engaged in the business he assumed all the sance was caused in the carrying on of the risk of his employés violating the conditions works of the quarry. In this opinion Judge of his license, and their acts were his acts, Shee concurred. Judge Blackburn said it when done in carrying on the licensed busiwas only necessary to say that where a ness. person maintains works by his capital, and Under these authorities the question of employs servants, and so carries on the intention is immaterial. The statute looks works as in fact to cause a nuisance to a at and punishes the act constituting the ofprivate right, for which an action would lie, fense, without regard to the intention of if the same nuisance inflicts an injury upon the person by or for whom the distribution the public right the remedy for which would was made. A person may lawfully distribbe by indictment, the evidence which would ute such articles as are named in the statmaintain the action would also support the ute, if he observes its provisions. If he indictment. This was not regarded as any employs an agent for that purpose, it is infringement upon the general rule that a his duty to know that the law regulating master is not criminally answerable for the the manner of distribution be not violated, act of his agent. The rule was discharged. and in case of its violation by such agent In Brown v. Foot, 66 L. T. (N. S.) 649, the in the performance of the duties of his appellant, a seller of milk, was convicted agency the principal is not absolved from in the court below for violating a statute responsibility by showing that in the mancreating a penalty for the sale of adulterat-ner of the work the violative acts were coned milk to a purchaser to his prejudice. The trary to his previous general instructions. milk sold was adulterated, without the cog- It follows that, notwithstanding the distribunizance of the master, by his servant, em- tion alleged was in fact by the respondent's ployed in the general business of selling milk agent, and contrary to his general instrucfor the master. Affirming the conviction, it tion against delivering to children, yet, as was said by Judge Wills that the master it was done by the agent in distributing was bound, not only not to sell an adulter- samples furnished him by the respondent ated article himself, but to take care that for that purpose, acting under the respondother people do not sell it for him; that, ent's orders, and in the prosecution of the if he does not take that care, he breaks the respondent's business, for which he was emact of Parliament; that, as the servant was ployed, the distribution was caused by the acting within his orders in selling, what respondent, within the meaning of the stathe did wrongly in the scope of his employ-ute, and he is answerable therefor. ment was a matter for which the master Judgment that there is no error in the was liable, because it was his business to proceedings, and that the respondent take see that within the scope of the delegated nothing by his exceptions. Let execution be authority the servant carried out the act done. of Parliament, just as much as he did himself. To the same effect are Rex v. Medley, 6 C. & P. 292, 25 E. C. L. 439, and Parker v. Allen [1899] 1 Q. B. D. 20.

In State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786, the statute prohibiting a licensee from selling or furnishing intoxicating liquor to a minor for his own use or for the use of any other person was involved. The servant of the respondent, a first-class licensee, contrary to his principal's instructions not to sell to minors, sold intoxicating liquor to a minor, taking pay therefor. The liquor sold was taken from the respondent's stock of liquors, kept by him for sale under his license. It was held that the respondent could not delegate the conduct of the business to an agent, with instruction not to sell

(85 Vt. 200) HUNTLEY et al. v. HOUGHTON et al. (Supreme Court of Vermont. Windham. Oct. 18, 1911.)

1. DEEDS (§ 93*)-CONSTRUCTION-INTENT OF PARTIES.

deed, the intention of the parties should control, In construing the descriptive part of a when it can be ascertained therefrom.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 231, 232; Dec. Dig. § 93.*] 2. DEEDS (§ 111*)—CONSTRUCTION—Descrip、

TION.

When the particular and general descriptions of a deed conflict, effect should be given the intention of the parties. to the particular description in ascertaining

[Ed. Note. For other cases, see Deeds, Dec. Dig. § 111.*1

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3. DEEDS ($ 114*)-CONSTRUCTION.

453

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Cudworth & Pierce, for plaintiffs. F. C. Archibald, for defendants.

HASELTON, J.

In 1883 E. conveyed a farm in L. to defendant, containing about 95 acres, subject to an annual rent to a school corporation, and in 1890 another conveyed to defendant a 32-acre tract adjoining the land conveyed by the E. deed, which was subject to an annual rent of 63 cents, and in 1896 defendant gave a bank a This was an action of mortgage on all of the realty in L., describing it as the farm "owned and formerly occupied" trespass on the freehold. The case was subby him, containing 100 acres more or less, and mitted to the county court on an agreed bounding it by the lands of the adjoining owners; the 32-acre tract being a part of the statement of facts, and on such statement farm mortgaged. The mortgage was foreclosed, judgment was rendered pro forma for the and the bank thereafter conveyed the land to defendant. The plaintiff excepted. plaintiffs, describing it as the farm "formerly In 1883 Mary B. G. Eddy conveyed to Steowned by" defendant, the description with reference to the adjoining lands correctly describ-phen Houghton a certain farm in Londoning the whole farm, which the bank purchased derry, containing, according to the descripunder the mortgage foreclosure, including the tion in the deed, about 95 acres, subject 312 acres; but the deed further stated that to an annual rent to the Londonderry Gramthe land was subject to an annual rent to the school corporation, and that the premises were the same as conveyed to it by the E. deed of 1883, and referred to that deed for a more particular description. In 1908 defendant paid to the school corporation the annual rental of 63 cents on the 32-acre tract. Held, that the reference to the E. deed for a more particular description was in law a general description, so that the particular description would prevail, and the deed to plaintiffs be construed as in cluding the 32-acre tract.

[Ed. Note.-For other cases, see Deeds, Dec. Dig. § 114.*]

4. DEEDS ($ 90*)-CONSTRUCTION.

As between two equally natural and reasonable constructions of a deed, that should be adopted which is most favorable to the grantee. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 234-237; Dec. Dig. § 90.*] 5. TRIAL ( 368*)-CONSTRUCTION.

A recital, in an agreed statement of facts in an action of trespass to the freehold, that eight years after defendant's interest in land was foreclosed he "entered upon" it without plaintiff's leave and cut hay therefrom, implied that defendant was out of possession at the

time of such entry.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 368; Dec. Dig. § 368.*]

6. TRESPASS (§ 16*)-TITLE TO SUSTAIN AC

TION.

One having title and the right of immediate possession of land may maintain an action of trespass to the freehold.

[Ed. Note. For other cases, see Trespass, Dec. Dig. & 16.*]

7. APPEAL AND ERROR (§ 1175*) - DISPOSITION-RENDERING JUDGMENT.

Where, in trespass to the freehold, the agreed statement of facts gives the value of hay cut by defendants, and refers to no other element of damage, the Supreme Court may, upon reversing a judgment for defendants, render judgment for plaintiffs.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]

mar School Corporation. In 1890 Frank P. Fuller conveyed to the same grantee a triangular piece of land of about 31⁄2 acres adjoining the land conveyed by the Eddy deed. This triangular piece of land was subject to an annual rent of 63 cents. In 1896 Houghton and his wife gave the Factory Point National Bank a mortgage of all their real estate in Londonderry, describing it as the farm "owned and formerly occupied" by them, containing 100 acres, more or less, and bounding it by the lands of adjoining owners. The 32-acre piece was one corner of the farm so mortgaged. This mortgage was foreclosed by decree which became absolute December 11, 1900. The description in the decree followed the mortgage. July 26, 1901, the Factory Point National Bank gave the plaintiffs a deed, which the plaintiffs claim was a conveyance of the whole farm covered by the mortgage and decree, but which, according to the defendants' claim, did not convey the 32-acre piece, which is the piece to which this litigation relates. The deed from the national bank to the plaintiffs des

ignated the land conveyed as the farm "formerly owned by Stephen Houghton," and, as, we have seen, the 32-acre piece had constituted a part of that farm. The deed bounded the farm on the north, south, east, and west by lands of others, and this part of the description correctly describes the whole farm, which the bank got under the decree in its favor, and is not a correct description if the premises conveyed by the bank to the defendants do not include the. 32-acre piece. The deed then goes on to say that the premises are subject to an annual School Corporation, and that they are the rental payable to the Londonderry Grammar same premises conveyed to Stephen Houghton by the Eddy deed of 1883, and to that,

Exceptions from Windham County Court; deed and the record thereof reference is Alfred A. Hall, Judge.

Action by Martin C. Huntley and others against Stephen Houghton and others. Judgment for defendants, and plaintiffs except. Judgment reversed, and rendered for plaintiffs.

made for more particular description.

[1, 2] It will be seen that the parts of the description are inconsistent, and the question is: What are the controlling elements? While the reference to a former deed is in terms for a more particular description, it

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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upon" the land, imports that at the time of such entry they were without possession. So the plaintiffs, having title, and at least the right of immediate possession, were entitled to maintain this action of trespass. Harris v. Haynes, 34 Vt. 220; Chesley v. Brockway, 34 Vt. 550; Robinson v. Douglass, 2 Aikens, 364, 368; Langdon v. Templeton, 66 Vt. 173, 181, 28 Atl. 866.

[7] There must be a reversal of the pro forma judgment in favor of the defendants, and, since the agreed statement of facts gives the value of the hay cut, and refers to no other element of damage to the plaintiffs, we have an approximately accurate basis on which to render judgment for the plaintiffs.

is what the law terms a general description. | of all his interest in the land in 1900; and Cummings v. Black, 65 Vt. 76, 25 Atl. 906. the agreed statement recites that during the In construing the descriptive part of the summer of 1908-that is, nearly eight years deed, the intention of the parties, when it can later-the defendants, without leave of the be gathered therefrom, is to govern, and the plaintiffs, entered upon the land in question general rule is stated in the case just cited and cut and moved therefrom hay of the in the following language: "In ascertaining value of $7. Whether or not this question such intention, when the particular and the of possession was spoken of below does not general description do not coincide, effect appear; but we think the statement that the must be given to the particular description, | defendants, in the summer of 1908, "entered such as is expressed by courses and distances, by permanent muniments, by lot and range, and by the adjoining surrounding lands. It is less probable that the parties would make an unnoticed mistake in the particular than in the general description." [3] We find nothing in this case to indicate that the general rule should not apply; but, on the contrary, we find several things which indicate that it should. If this national bank had intended to reserve from its deed a part of the farm which it had acquired by foreclosure, it is difficult to understand how it should have described the farm by reference entirely to the lands of others. In describing the land as the farm formerly owned by Stephen Houghton, the grantor would naturally have had reference to the farm as it was at the times when it took its mortgage deed from Houghton and when it obtained its decree of foreclosure. It appears that down to 1908 Houghton paid to the agent for the Londonderry Grammar School Corporation the annual rental of 63 cents on the 32-acre piece of land. But this fact does not aid the defendants; for beyond all question he had been foreclosed of his interest in the land, and there is nothing in the statement of facts to suggest that, at any time after conveying the Houghton farm to the plaintiffs, the bank in any way asserted, or suggested, or recognized that it had not conveyed the entire farm. The principles of construction herein applied are well settled in the state. Spiller v. Scribner, 36 Vt. 245; Hibbard v. Hurlburt, 10 Vt. 173; Mor-2 HUSBAND AND WIFE (§ 207*) row v. Willard, 30 Vt. 118; Cummings v. Black, 65 Vt. 76, 25 Atl. 906; Bundy v. Morgan, 45 Vt. 46; Wilder v. Davenport, 58 Vt. 642, 5 Atl. 753; Chapman v. Longworth, 71 Vt. 228, 44 Atl. 352.

[4] If, as we do not think, the intention of the parties to the deed is not resolved by the considerations already suggested, then resort should be had to the principle that, as between two constructions equally natural and reasonable, that should be adopted which is most favorable to the grantee. Mills v. Catlin, 22 Vt. 98.

[5, 6] The plaintiffs treat the question of the construction of the deed to them from the national bank as the only question in the case; but the defendants raise a question

as to whether it appears that the defendant Houghton had ever been dispossessed of the land. We have seen that he was foreclosed

Accordingly, the pro forma judgment is reversed, and judgment is rendered for the plaintiffs, to recover of the defendants the sum of $7 and their costs.

(85 Vt. 141)

BISHOP v. READSBORO CHAIR MFG. CO. (Supreme Court of Vermont. Bennington. Oct. 9, 1911.)

1. IIUSBAND AND WIFE (§ 9*)-WIFE'S REALTY-OWNERSHIP.

Where at a wife's marriage she was seised of an estate of inheritance in certain described real estate, her husband by virtue of his marital right became seised of the freehold, and was entitled to the possession and to the rents and profits during their joint lives.

Wife, Cent. Dig. $$ 30-37; Dec. Dig. § 9.*]
[Ed. Note.-For other cases, see Husband and

REALTY-INJURIES-ACTIONS.

WIFE'S

In an action for damages to the real property of a wife during coverture, the husband may sue alone or the wife may be joined, but the action is improperly brought in the name of the wife alone.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 756-759; Dec. Dig. § 207.*] 3. PARTIES (8 75*)-PROPER PARTIES-PLEA IN ABATEMENT.

to the real property of a married woman was The objection that an action for injuries improperly brought in her name alone, and not in the name of her husband or in their joint names, could only be pleaded in abatement, and was not available in bar or under the general issue.

[Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 115, 116; Dec. Dig. § 75.*] 4. ADJOINING LANDOWNERS (§ 7*)-INJURY TO ADJOINING PROPERTY-EVIDENCE.

by boards from piles on defendant's adjoining In an action for injuries to plaintiff's house property being blown against the same, evidence held to warrant a finding of negligence in de

Vt.)

BISHOP v. READSBORO CHAIR MFG. CO.

455

fendant's failure to properly pile and secure the 12. ADJOINING LANDOWNERS (§ 7*) - Injury boards. ADJOINING PROPERTY SNOW

[Ed. Note.-For other cases, see Adjoining Landowners, Cent. Dig. §§ 53-59; Dec. Dig. § 7.*]

5. ADJOINING LANDOWNERS (§ 7*) - INJURY 7*)-INJURY TO ADJOINING PROPERTY - ACT OF GOD

HIGH WIND.

Where boards were blown from defendant's lumber piles on its adjoining property on to and against plaintiff's house, breaking the windows and otherwise injuring the same, and the wind, though high, was not unprecedented, defendant was not relieved from liability on the theory that the injury resulted from an act of God. [Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. §§ 53-59; Dec. Dig. § 7.*1

6. ADJOINING LANDOWNERS (§ 7*)-CARE REQUIRED-PILING LUMBER.

Defendant while entitled to pile lumber on its own land was bound to so pile or secure the same as to guard against its being blown on to and against plaintiff's adjoining property.

[Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. §§ 53-59; Dec. Dig. § 7.*]

7. ADJOINING LANDOWNERS (§ 7*)-INJURY TO ADJOINING LAND-SNOWSLIDE.

Where snow was permitted to slide from defendant's roof on to plaintiff's adjoining premises and against her house, to her injury, and defendant, with notice, did nothing to prevent it, it was prima facie negligent, and liable for the injury sustained.

[Ed. Note. For other cases, see Adjoining Landowners, Dec. Dig. § 7.*]

(S

8. NUISANCE (§ 42*)-ACTION-NOTICE OFCONTINUANCE-GRANTEE.

The grantee of an estate is not liable for an injury resulting from the continuance of a nuisance erected thereon before he came into the estate until he had notice to remove it.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 101-103; Dec. Dig. § 42.*] 9. NUISANCE (§ 42*)-ACTION-NOTICE TO АВАТЕ.

No particular form of notice or request for abatement of a nuisance is required to charge a grantee with liability for the continuance thereof; any notice informing the grantee of the existence of the nuisance and of the desire of the objector to have it removed being sufficient.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 101-103; Dec. Dig. § 42.*] 10. NUISANCE (§ 49*) -- NOTICE-EVIDENCEQUESTION FOR JURY.

ΤΟ Roof.

FROM

Where snow was permitted to accumulate on defendant's roof and to fall on plaintiff's

adjoining property, a request to charge that plaintiff could not recover for any damage by reason of the accumulation on the ground of snow which fell from defendant's roof was propnominal damages therefor, at least, as the prac erly refused; plaintiff being entitled to recover tice, if long enough continued, would give a prescriptive right.

Landowners, Cent. Dig. §§ 53-59; Dec. Dig. [Ed. Note. For other cases, see Adjoining $ 7.*]

13. EVIDENCE ($ 5*)-JUDICIAL NOTICE-MATTERS OF GENERAL KNOWLEDGE.

matter of common knowledge that roof guards The court will take judicial notice as a placed just above the eaves of a roof to prevent snow from sliding off are in effective use.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 4; Dec. Dig. § 5.*1

14. ADJOINING LANDOWNERS (§ 7*)—INJURIES TO ADJOINING PROPERTY-INSTRUCTIONS.

Where, in an action for trespass, there was other evidence from which the law would imply malice on the part of defendant, their request to charge that, if defendant's officers did not come to look at plaintiff's property when requested to do so, such fact was not evidence of willfulness, wantonness, or malice, was properly refused. [Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. §§ 53-59; Dec. Dig. § 7.*]

15. EVIDENCE (§ 136*)-SIMILAR FACTS-MAL

ICE.

Where plaintiff claimed malice in the maintenance of a nuisance by defendant in permitting snow to slide from its storehouses on to plaintiff's property, evidence that since the bringing of the suit snow had slid from the storehouse against plaintiff's house was admissible on the issue of willfulness.

Cent. Dig. §§ 404, 405; Dec. Dig. § 136.*] [Ed. Note. For other cases, see Evidence, 16. CORPORATIONS (§ 493*) - MISCONDUCT OF OFFICERS-PUNITIVE DAMAGES.

Where defendant corporation maintained a storehouse adjoining plaintiff's property, and its president, treasurer, and manager, after notice, willfully permitted snow and ice to collect on the roof and slide therefrom on to and against plaintiff's house, the corporation was liable for punitive damages.

Cent. Dig. § 1904; Dec. Dig. § 493.*] [Ed. Note.-For other cases, see Corporations,

17. EVIDENCE (§ 473*)-OPINION-AMOUNT OF DAMAGES.

In an action for injury to real property by the existence of a nuisance on defendant's premises, evidence held to warant a finding of notice to defendant of the existence of the nuisance. [Ed. Note. For other cases, see Nuisance, Dec. Dig. § 49.*] 11. ADJOINING LANDOWNERS (§ 7*)-DAMAGES TO ADJOINING PROPERTY-REPAIR-INSTRUC-band was properly permitted to give his opin

TIONS.

Where plaintiff's property was injured by snow and lumber falling and being blown from defendant's adjoining property against plaintiff's house, and plaintiff's husband made repairs on her behalf and at her expense, necessitated by the injuries, an instruction 'that the tated by the injuries, an instruction that the jury should not include in any damages to which they might find plaintiff entitled any sum for labor performed by the husband was properly

refused.

[Ed. Note.-For other cases, see Adjoining Landowners, Cent. Dig. §§ 53-59; Dec. Dig. § 7.*1

Plaintiff's house was injured by boards from defendant's lumber piles being blown against it, smashing the windows and jamming and splitting the clapboards, and breaking a hole or holes in the roof of the porch from the side of the house. Held, that plaintiff's hus

under the rule that where a witness has means ion as to the amount of damages to the house of personal observation and the facts which led under the rule that where a witness has means his mind to a conclusion are incapable of being detailed and described, so as to enable anyone but himself to form an intelligent conclusion from them, the witness may add his opinion.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. § 473.*] 18. ADJOINING LANDOWNERS (§ 7*)-INJURY TO ADJOINING PROPERTY-EVIDENCE. In an action for injuries to plaintiff's house by boards piled on defendant's property

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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in question was theirs jointly; and that, if so, it was hers as much as it was his, and a cause of action for an injury to it would survive to her if she survived him, and they might sue jointly for such injury. In Smith v. Fitzgerald, 59 Vt. 451, 9 Atl. 604, the action was trespass trespass quare clausum fregit brought by the husband alone for cutting trees on land of which the plaintiff and his wife were in possession in the right of the wife; his marital rights being his only interest in the realty. The case was heard on referee's report. One question presented was whether the action could be maintained in the name of the husband alone for cutting

Exceptions from Bennington County Court; trees on the wife's land during coverture. Alfred A. Hall, Judge.

Action by Frances J. Bishop against the Readsboro Chair Manufacturing Company. Judgment for plaintiff, and defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Holding that the action was properly brought, the court said the law was well settled that an action of trespass for injuries to the wife's land during coverture will survive to the husband on the death of the wife, and if the wife survive any action for a tort committed to her real estate during coverture will survive to her; and that the principle deduc

Chase & Daley, for plaintiff. Holden & ed from the cases cited in the opinion was Healy, for defendant.

WATSON, J. One ground assigned in the defendant's motion for a verdict, also in its motion to set aside the verdict, is that from the undisputed evidence the plaintiff at the time the grievances complained of were comImitted was and hitherto has been and now is a feme covert, living with her husband on the premises alleged to have been damaged by the negligence of the defendant, of which premises the husband was and is seized in the right of his wife, but has not been joined as a party plaintiff in this action.

[1] At the time of the plaintiff's marriage in 1903, she was seised of an estate of inheritance in the premises described in the declaration, and upon the marriage the husband by virtue of his marital rights became seized of the freehold; and the law is, as claimed by the defendant, that this entitled the husband to the possession of the land and to the rents and profits during their joint lives. Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340.

[2] Yet the conclusion drawn in defendant's brief that the action should have been brought in the husband's name alone does not follow. This suit is merely for damages to the real property of the wife during coverture, and for such purpose the husband may sue alone, or the wife may be joined. In Armstrong and Wife v. Colby, 47 Vt. 359, the action was trespass quare clausum fregit. On motion in arrest of judgment it was said that the gist of the cause of action set forth in each count of the declaration is the breaking and entering a close alleged to be the plaintiffs' close; that the plaintiffs, though husband and wife, might jointly have a close, and this allegation is in effect that the one

"that in all cases for injuries done to the wife's land during coverture, where the right of action will survive to the wife upon the death of the husband, and to the husband upon the death of the wife, the husband may sue alone or join with his wife at his election." The same general principle has been held applicable where the husband was seised of a house for life in the right of his wife, and leased it for years to a tenant who burned it (Cro. Eliz. 461); where the action was on the case for cutting down trees, the lops of which were reserved to the wife for her life (Tregmiel v. Rieve, Cro. Car. 437); where the action was on the case for stopping a way to the land of the wife, as the wrong was done to the wife, the husband having the close in her right (Baker v. Brereman, Cro. Car. 419); where the action was brought by the dippers at Tunbridge Wells against the defendant for exercising the business of a dipper, not being duly appointed, and approved according to a private statute (Weller v. Baker, 2 Wils. 414, 423). In this last case it was said that wherever the wife is the meritorious cause she may join in the action. To the same effect are, also, Abbott v. Blofield, Cro. Jac. 644; Rose v. Bowker, 1 H. Bl. 109. In the case before us the wife's interest in the real property injured does not give the right to sue in her own name alone. Yet, to be effective, advantage thereof should have been taken in the manner pointed out in the law of pleadings.

[3] The rule is in tort actions at least that where the feme was legally interested before or during coverture in the subject-matter of the action and might properly join in a suit with her husband, but sues alone, the coverture can only be pleaded in abatement. It cannot be pleaded in bar, or given in evi

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