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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

(85 Vt. 200) Parker v. Allen [1899] 1 Q. B. D. 20.

HUNTLEY et al. v. HOUGHTON et al. In State V. Gilmore, 80 Vt. 514, 68 Atl. (Supreme Court of Vermont. Windham. 658, 16 L. R. A. (N. S.) 786, the statute

Oct. 18, 1911.) prohibiting a licensee from selling or fur- 1. DEEDS ($93*)—CONSTRUCTION-INTENT OF nishing intoxicating liquor to a minor for PARTIES. his own use or for the use of any other

In construing the descriptive part of a

deed, the intention of the parties should control, person was involved.

The servant of the when it can be ascertained therefrom. respondent, a first-class licensee, contrary

[Ed. Note.-For other cases, see Deeds, Cent. to his principal's instructions not to sell Dig. $$ 231, 232; Dec. Dig. $ 93.*] to minors, sold intoxicating liquor to a 2. DEEDS ($111*)—CONSTRUCTION_DESCRIPminor, taking pay therefor. The liquor TION. sold was taken from the respondent's stock When the particular and general descripof liquors, kept by him for sale under his tions of a deed conflict, effect should be given license. It was held that the respondent the intention of the parties.

to the particular description in ascertaining could not delegate the conduct of the busi

[Ed. Note.-For other cases, see Deeds, Dec. ness to an agent, with instruction not to sell | Dig. 111.*]

Vt.)

HUNTLEY V. HOUGHTON

453

3. DEEDS ($ 114*)-CONSTRUCTION.

Argued before ROWELL, C. J., and JIUNIn 1883 E. conveyed a farm in L. to de- SON, WATSON, HASELTON, and POWfendant, containing about 95 acres, subject to an annual rent to a school corporation, and in

ERS, JJ. 1890 another conveyed to defendant a 342-acre Cudworth & Pierce, for plaintiffs. F. C. tract adjoining the land conveyed by the E. deed, which was subject to an annual rent of c3 Archibald, for defendants. cents, and in 1896 defendant gave a bank a mortgage on all of the realty in L., describing HASELTON, J. This was an action of 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 own

the 31/2-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 the land was subject to an annual rent to the to an annual rent to the Londonderry Gramschool corporation, and that the premises were mar School Corporation. In 1890 Frank P. the same as conveyed to it by the E. deed of Fuller conveyed to the same grantee a tri1883, and referred to that deed for a more par- angular piece of land of about 342 acres ticular description. In 1908 defendant paid to the school corporation the annual rental of 63 adjoining the land conveyed by the Eddy cents on the 312-acre tract.. Held, that the ref- deed. This triangular piece of land was suberence to the É. deed for a more particular de-ject to an annual rent of 63 cents. In 1896 scription was in law a general description, so Houghton and his wife gave the Factory that the particular description would prevail, and the deed to plaintiffs be construed as in Point National Bank a mortgage of all their cluding the 312-acre tract.

real estate in Londonderry, describing it as [Ed. Note.-For other cases, see Deeds, Dec. the farm "owned and formerly occupied” by Dig. § 114.*]

them, containing 100 acres, more or less, and 4. DEEDS ($ 90*)–CONSTRUCTION.

bounding it by the lands of adjoining ownAs between two equally natural and rea-ers. The 312-acre piece was one corner of sonable constructions of a deed, that should be the farm so mortgaged. This mortgage was adopted which is most favorable to the grantee. foreclosed by decree which became absolute

[Ed. Note. For other cases, see Deeds, Cent. December 11, 1900. The description in the Dig. 88 234-237; Dec. Dig. $ 90.*]

decree followed the mortgage. July 26, 1901, 5. TRIAL ($ 368*)–CONSTRUCTION.

A recital, in an agreed statement of facts the Factory Point National Bank gave the in an action of trespass to the freehold, that plaintiffs a deed, which the plaintiffs claim eight years after defendant's interest in land was a conveyance of the whole farm covered was foreclosed he “entered upon" it without by the mortgage and decree, but which, acplaintiff's leave and cut hay therefrom, implied cording to the defendants' claim, did not that defendant was out of possession at the time of such entry.

convey the 312-acre piece, which is the piece [Ed. Note.-For other cases, see Trial, Cent. to which this litigation relates. The deed Dig. § 368; Dec. Dig. § 368.*]

from the national bank to the plaintiffs des.. 6. TRESPASS (16*)-TITLE TO SUSTAIN AC-ignated the land conveyed as the farm "forTION.

merly owned by Stephen Houghton," and, as, One having title and the right of imme- we have seen, the 312-acre piece had condiate possession of land may maintain an ac- stituted a part of that farm. The deed tion of trespass to the freehold.

bounded the farm on the north, south, east, [Ed. Note.-For other cases, see Trespass, and west by lands of others, and this part Dec. Dig. $ 16.*]

of the description correctly describes the 7. APPEAL AND ERROR ($1175*) — DISPOSI- whole farm, which the bank got under the TION-RENDERING JUDGMENT.

Where, in trespass to the freehold, the decree in its favor, and is not a correct deagreed statement of facts gives the value of scription if the premises conveyed by the hay cut by defendants, and refers to no other bank to the defendants do not include the element of damage, the Supreme Court may, 312-acre piece. The deed then goes on to say upon reversing a judgment for defendants, ren- that the premises are subject to an annual der judgment for plaintiffs. [Ed. Note.-For other cases, see Appeal and School Corporation, and that they are the

rental payable to the Londonderry Grammar . & 1175.*]

same premises conveyed to Stephen Hough

ton 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.

made for more particular description. Action by Martin C. Huntley and others [1, 2] It will be seen that the parts of the against Stephen Houghton and others. Judg- description are inconsistent, and the quesment for defendants, and plaintiffs except. tion is: What are the controlling elements ? Judgment reversed, and rendered for plain- While the reference to a former deed is in tiffs.

terms for a more particular description, it

1

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

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 dis- upon” the land, imports that at the time of tances, by permanent muniments, by lot and such entry they were without possession. range, and by the adjoining surrounding So the plaintiffs, having title, and at least lands. It is less probable that the parties the right of immediate possession, were entiwould make an unnoticed mistake in the tled to maintain this action of trespass. particular than in the general description.” Harris v. Haynes, 34 Vt. 220; Chesley V.

[3] We find nothing in this case to indi- Brockway, 31 Vt. 550; Robinson v. Douglass, cate that the general rule should not apply; 2 Aikens, 364, 368; Langdon v. Templeton, but, on the contrary, we find several things 66 Vt. 173, 181, 28 Atl. 866. which indicate that it should. If this na (7] There must be a reversal of the pro tional bank had intended to reserve from its forma judgment in favor of the defendants, deed a part of the farm which it had acquir-and, since the agreed statement of facts gives ed by foreclosure, it is difficult to understand the value of the hay cut, and refers to no how it should have described the farm by other element of damage to the plaintiffs, reference entirely to the lands of others. In we have an approximately accurate basis on describing the land as the farm formerly which to render judgment for the plaintiffs. owned by Stephen Houghton, the grantor Accordingly, the pro forma judgment is would naturally have had reference to the reversed, and judgment is rendered for the farm as it was at the times when it took its plaintiffs, to recover of the defendants the mortgage deed from Houghton and when it sum of $7 and their costs. obtained its decree of foreclosure. It appears that down to 1908 Houghton paid to the agent for the Londonderry Grammar

(85 Vt. 141) School Corporation the annual rental of 63 BISHOP v. READSBORO CHAIR MFG. CO. cents on the 342-acre piece of land. But this

(Supreme Court of Vermont. Bennington, . fact does not aid the defendants; for beyond

Oct. 9, 1911.) all question he had been foreclosed of his 1. IIUSBAND AND WIFE (8 9*)-WIFE'S REALinterest in the land, and there is nothing in TY-OWNERSIIIP. the statement of facts to suggest that, at

Where at a wife's marriage she was seised any time after conveying the Houghton farm real estate, her husband by virtue of his marital

of an estate of inheritance in certain described to the plaintiffs, the bank in any way assert- right became seised of the freehold, and was ed, or suggested, or recognized that it had entitled to the possession and to the rents and not conveyed the entire farm. The principles profits during their joint lives. of construction herein applied are well set-Wife, Cent. Dig. $S 30–37; Dec. Dig. $ 9.*]

[Ed. Note. For other cases, see Husband and tled in the state. Spiller v. Scribner, 36 Vt.

WIFE'S * 245; Hibbard v. Hurlburt, 10 Vt. 173; Vor: 2 IIUSBAND AND WIFE ($ 207*)

REALTY-INJURIES-ACTIONS. row v. Willard, 30 Vt. 118; Cummings v. In an action for damages to the real propBlack, 65 Vt. 76, 25 Atl. 906; Bundy v. Mor- erty of a wife during coverture, the husband gan, 45 Vt. 46; Wilder v. Davenport, 58 Vt. may sue alone or the wife may be joined, but

the action is improperly brought in the name of 642, 5 Atl. 753; Chapman v. Longworth, 71 the wife alone. Vt. 228, 44 Atl. 352.

[Ed. Note.-For other cases, see Husband and [4] If, as we do not think, the intention Wife, Cent. Dig. $$ 750-759; Dec. Dig. $ 207.*] of the parties to the deed is not resolved by 3. PARTIES ($ 75*)—PROPER PARTIES-PLEA IN the considerations already suggested, then

ABATEMENT. resort should be had to the principle that, to the real property of a married woman was

The objection that an action for injuries as between two constructions equally natural improperly brought in her name alone, and not and reasonable, that should be adopted which in the name of her husband or in their joint is most favorable to the grantee. Mills v. names, could only be pleaded in abatement, and

was not available in bar or under the general Catlin, 22 Vt. 98.

issue. [5, 6] The plaintiffs treat the question of [Ed. Yote.-For other cases, see Parties, Cent. the construction of the deed to them from Dig. $$ 115, 116; Dec. Dig. $ 75.*] the national bank as the only question in 4. ADJOINIXG LANDOWNERS ($ 7*)-INJURY TO the case; but the defendants raise a question ADJOINING PROPERTY-EVIDENCE. as to whether it appears that the defendant

In an action for injuries to plaintiff's house Houghton had ever been dispossessed of the property being blown against the same, evidence

by boards from piles on defendant's adjoining land. We have seen that he was foreclosed 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.

TO ADJOINING PROPERTY

SNOW FROM [Ed. Note.-For other cases, see Adjoining

RooF. Landowners, Cent. Dig. $$ 53-59; Dec. Dig. Where snow was permitted to accumulate $ 7.*)

on defendant's roof and to fall on plaintiff's 5. ADJOINING LANDOWNERS (? 7*) — INJURY adjoining property, a request to charge that

TO ADJOINING PROPERTY — ACT OF GOD – reason of the accumulation on the ground of HIGIL WIND.

Where boards were blown from defendant's snow which fell from defendant's roof was proplumber piles on its adjoining property on to and erly refused; plaintiff being entitled to recover against plaintiff's house, breaking the windows tice, if long enough continued, would give a against plaintiff's house, breaking the windows nominal damages therefor, at least, as the pracand otherwise injuring the same, and the wind, though high, was not unprecedented, defendant

prescriptive right. was not relieved from liability on the theory Landowners, Cent. Dig. ss 53-59; Dec. Dig.

[Ed. Note. For other cases, see Adjoining that the injury resulted from an act of God.

§ 7.*] [Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. $853–59; Dec. Dig. 13. EVIDENCE (S 5*)—JUDICIAL NOTICE-MAT§ 7.*]

TERS OF GENERAL KNOWLEDGE. 6. ADJOINING LANDOWNERS ($ 7*)—CARE RE- matter of common knowledge that roof guards

The court will take judicial notice as a QUIRED-PILING LUMBER.

Defendant while entitled to pile lumber on placed just above the eaves of a roof to prevent its own land was bound to so pile or secure the snow from sliding off are in effective use. same as to guard against its being blown on to

[Ed. Note.-For other cases, see Evidence, and against plaintiff's adjoining property.

Cent. Dig. $ 4; Dec. Dig. & 5.*) [Ed. Note.-For other cases, see Adjoining 14. ADJOINING LANDOWNERS ($ 7*)-INJURIES Landowners, Cent. Dig. $8 53-59; Dec. Dig. TO ADJOINING PROPERTY-INSTRUCTIONS. $ 7.*]

Where, in an action for trespass, there was 7. ADJOINING LANDOWNERS (8 7*)-INJURY TO other evidence from which the law would imply ADJOINING LAND-SNOWSLIDE.

malice on the part of defendant, their request to Where snow was permitted to slide from charge that, if defendant's officers did not come defendant's roof on to plaintiff's adjoining prem- to look at plaintiff's property when requested to ises and against her house, to her injury, and do so, such fact was not evidence of willfulness, defendant, with notice, did nothing to prevent wantonness, or malice, was properly refused. it, it was prima facie negligent, and liable for [Ed. Note.-For other cases, see Adjoining the injury sustained.

Landowners, Cent. Dig. $8 53-59; Dec. Dig. [Ed. Note. For other cases, see Adjoining 8 7.*] Landowners, Dec. Dig. $ 7.*]

15. EVIDENCE (8 136*)-SIMILAR FACTS-MAL8. NUISANCE (S 42*)--ACTION—NOTICE OF ICE. CONTINUANCE-GRANTEE.

Where plaintiff claimed malice in the mainThe grantee of an estate is not liable for tenance of a nuisance by defendant in permitan injury resulting from the continuance of ating snow to slide from its storehouses on to nuisance erected thereon before he came into plaintiff's property, evidence that since the the estate until he had notice to remove it. bringing of the suit snow had slid from the

[Ed. Note.--For other cases, see Nuisance, storehouse against plaintiff's house was admisCent. Dig. SS 101–103; Dec. Dig. § 42.*]

sible on the issue of willfulness. 9. NUISANCE (8 42*) – ACTION – NOTICE TO Cent. Dig. $$ 404, 405; Dec. Dig. 136.*]

[Ed. Note.--For other cases, see Evidence, ABATE.

No particular form of notice or request for 16. CORPORATIONS ($ 493*) - MISCONDUCT OF abatement of a nuisance is required to charge OFFICERS-PUNITIVE DAMAGES, a grantee with liability for the continuance Where defendant corporation maintained a thereof; any notice informing the grantee of storehouse adjoining plaintiff's property, and its the existence of the nuisance and of the desire president, treasurer, and manager, after notice, of the objector to have it removed being suffi- willfully permitted snow and ice to collect on cient.

the roof and slide therefrom on to and against [Ed. Note. For other cases, see Nuisance, plaintiff's house, the corporation was liable for Cent. Dig. $8 101-103; Dec. Dig. § 42.*]

pupitive damages. 10. NUISANCE (8 49*) -- NOTICE — EVIDENCE

[Ed. Note.-For other cases, see Corporations,

Cent. Dig. § 1904; Dec. Dig. § 493.*] QUESTION FOR JURY.

In an action for injury to real property by 17. EVIDENCE ($ 473*)-OPINION-AMOUNT OF the existence of a nuisance on defendant's prem DAMAGES, ises, evidence held to warant a finding of notice Plaintiff's house was injured by boards to defendant of the existence of the nuisance. from defendant's lumber piles being blown

[Ed. Note. For other cases, see Nuisance, against it, smashing the windows and jamming Dec. Dig. $ 49.*]

and splitting the clapboards, and breaking a 11. ADJOINING LANDOWNERS ($ 7*)-- DAMAGES side of the house. Held, that plaintiff's hus

hole or holes in the roof of the porch from the TO ADJOINING PROPERTY-REPAIR—INSTRUC-band was properly permitted to give his opinTIONS.

Where plaintiff's property was injured by ion as to the amount of damages to the house snow and lumber falling and being blown from of personal observation and the facts which led

a defendant's adjoining property against plain- his mind to a conclusion are incapable of being tiff's house, and plaintiff's husband made re- detailed and described, so as to enable anyone pairs on her behalf and at her expense, necessi- but himself to form an intelligent conclusion jury should not include in any damages to which from them, the witness may add his opinion. they might find plaintiff entitled any sum for

[Ed. Note. For other cases, see Evidence, labor performed by the husband was properly Cent. Dig. $8 2220–2233; Dec. Dig. § 473.*] refused.

18. ADJOINING LANDOWNERS (8 7*)-INJURY [Ed. Note. For other cases, see Adjoining TO ADJOINING PROPERTY-EVIDENCE, Landowners, Cent. Dig. SS 53–59; Dec. Dig. In an action for injuries to plaintiff's § 7.*]

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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being blown against it, plaintiff's husband was, in question was theirs jointly; and that, if properly permitted to testify that after the first so, it was hers as much as it was his, and a injury to the house he spoke to defendant's manager about it and asked him if he was going to cause of action for an injury to it would surcontinue piling boards, and not fasten them vive to her if she survived him, and they down, to which the manager replied that he had might sue jointly for such injury. In Smith told the foreman either to weight or wire the v. Fitzgerald, 59 Vt. 451, 9 Atl. 604, the acboards to hold them. [Ed. Note. For other cases, see Adjoining

tion was trespass quare clausum fregit Landowners, Dec. Dig. '$ 7.*]

brought by the husband alone for cutting 19. APPEAL AND ERROR (8204*)—ADMISSION trees on land of which the plaintiff and his OF EVIDENCE-NECESSITY OF OBJECTION. wife were in possession in the right of the

Reception of evidence without objection is wife; his marital rights being his only inpot reviewable on exceptions.

terest in the realty. The case was heard on [Ed. Note.-For other cases, see Appeal and referee's report. One question presented was Error, Cent. Dig. $$ 1258–1280; Dec. Dig. $ whether the action could be maintained in 204.*)

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.

Holding that the action was properly brought, Action by Frances J. Bishop against the the court said the law was well settled that Readsboro Chair Manufacturing Company. an action of trespass for injuries to the wife's Judgment for plaintiff, and defendant brings land during coverture will survive to the hus. exceptions. Affirmed.

band on the death of the wife, and if the Argued before ROWELL, C. J., and MUN wife survive any action for a tort commitSON, WATSON, HASELTON, and 'POWted to her real estate during coverture will ERS, JJ.

survive to her; and that the principle deducChase & Daley, for plaintiff. Holden & ed from the cases cited in the opinion was Healy, for defendant.

"that in all cases for injuries done to the

wife's land during coverture, where the right WATSON, J. One ground assigned in the of action will survive to the wife upon the defendant's motion for a verdict, also in its death of the husband, and to the husband motion to set aside the verdict, is that from upon the death of the wife, the husband may the undisputed evidence the plaintiff at the sue alone or join with his wife at his electime the grievances complained of were com- tion.” The same general principle has been mitted was and hitherto has been and now held applicable where the husband was seised is a feme covert, living with her husband on of a house for life in the right of his wife, the premises alleged to have been damaged and leased it for years to a tenant who burnby the negligence of the defendant, of which ed it (Cro. Eliz, 461); where the action was premises the husband was and is seized in on the case for cutting down trees, the lops the right of his wife, but has not been join- of which were reserved to the wife for her ed as a party plaintiff in this action. life (Tregmiel v. Rieve, Cro. Car. 437); where

[1] At the time of the plaintiff's marriage the action was on the case for stopping a in 1903, she was seised of an estate of in- way to the land of the wife, as the wrong heritance in the premises described in the was done to the wife, the husband having declaration, and upon the marriage the hus- the close in her right (Baker v. Brereman, band by virtue of his marital rights became Cro. Car. 419); where the action was brought seized of the freehold; and the law is, as by the dippers at Tunbridge Wells against claimed by the defendant, that this entitled the defendant for exercising the business of the husband to the possession of the land and a dipper, not being duly appointed, and apto the rents and profits during their joint proved according to a private statute (Weller lives. Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, v. Baker, 2 Wils. 414, 423). In this last case 59 L. R. A. 340.

it was said that wherever the wife is the . [2] Yet the conclusion drawn in defend meritorious cause she may join in the action, ant's brief that the action should have been To the same effect are, also, Abbott v. Blobrought in the husband's name alone does field, Cro. Jac. 644; Rose v. Bowker, 1 H. Bl. not follow. This suit is merely for damages 109. In the case before us the wife's interto the real property of the wife during cover-est in the real property injured does not give ture, and for such purpose the husband may the right to sue in her own name alone. Yet, sue alone, or the wife may be joined. In to be effective, advantage thereof should Armstrong and Wife v. Colby, 47 Vt. 359, have been taken in the manner pointed out the action was trespass quare clausum fregit. in the law of pleadings. On motion in arrest of judgment it was said [3] The rule is in tort actions at least that that the gist of the cause of action set forth where the feme was legally interested bein each count of the declaration is the break-fore or during coverture in the subject-mating and entering a close alleged to be the ter of the action and might properly join in plaintiffs' close; that the plaintiffs, though a suit with her husband, but sues alone, the husband and wife, might jointly have a close, coverture can only be pleaded in abatement. and this allegation is in effect that the one It cannot be pleaded in bar, or given in eri

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