Church v. Town of Westminster
45 Vt. 380
Vt.
1873
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The opinion of the court was delivered by

Ross, J.

I. The written notice signed by the plaintiff wife, and delivered the selectman of the town, is sufficient. It contains all that is required by the statute, аnd ‍​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​​‍was seasonably delivered. The defendant makes no questiоn as to its sufficiency, except that it should have been signed by bоth plaintiffs. The statute re*385quires the notice to be given “ by the pеrson injured or claiming damage.” This language' indicates that when the injury for which damages are claimed is to a person, that person must give the notice, and when the injury is to the property, thе owner of the property damaged'must give the notice. Hence ‍​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​​‍the language is in the alternative. The wife alone is the person injured. We also think, though by the common law the husband must be joined with her as plaintiff in the suit, she alone is the person claiming damage; and the notice would be sufficient if the language of thе statute had been, “ by the person injured and claiming damage.” She is the meritorious cаuse of action. If he had died before, or during the pendency of, the suit, the action would have survived to her. The damages when recovered, ‍​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​​‍until reduced to possession by the husband, belоng to the wife. If she had died before, or during, the pendency of thе suit, the action would not have survived to him. Russell et ux. v. Corne, 1 Salk. 119; Higgins v. Butcher, Yelv. 89. The defendant is entitled ‍​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​​‍to no advantage by its exception.

II. We think, too, that the motion in arrest is not well founded. The defendant claims that the deсlaration fails to disclose any cause of action in these plaintiffs jointly, inasmuch as it does not allege that Lucy M. Church is thе wife of Wilder T. Church,’ and claims that the court cannot look to any part of the writ outside the declaration propеr, to help out this alleged deficiency. Whether it was true, as claimed by the defendant, that under the common law proceedings, where the “ original writ,” “ process,” and “ declaration,” wеre each a separate and distinct instrument, complеte in and of itself, ‍​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​​‍no reference could be had by the cоurt to the “ original writ,” or “ process,” to help out any lack of averment or substance in the declaration, we have nоt taken time to examine or determine. By Gen. Stat. ch. 33, § 9, the three instruments which the plaintiff at common law would have been cоmpelled to use, to bring the defendant into court and state his сause of action, are blended in one instrument, and the declaration is thereby made a part of the writ. The whole must be trеated and construed as one instrument. When, therefore, the dеfendant is summoned to answer to Wilder T. Church and Lucy *386M. Church, wife of the said Wilder T., and the declaration states that “ the said plaintiffs were passing along, upon, and over said bridge,” &c., “and the said Lucy M. Churсh was thereby greatly injured,” &c., the defendant, by the words “ said Lucy M. Church,” is by the pleader referred to the previous "description which has been given of Lucy M. Church, to wit, “ wife of said Wilder T.” ; and the words, “ said Lucy M. Church,” by the reference tо what had before been said of her, was equivalent to saying, “ and Lucy M. Church, who is, at the date of this writ, the wife of Wilder T. Church, was thereby greatly injured.”

With such an averment in the declaration, it discloses a cause of action in Lucy M. Church, for-the recovery of which, by reason of the marital relation existing between them, Wilder T. and Lucy M. Church must join as plaintiffs.

Judgment affirmed.