Lewis v. Babcock

18 Johns. 443 | N.Y. Sup. Ct. | 1821

Per Curiam.

There is no doubt, that upon demurrer, the objection would preváil-; but we incline to the opinion, that it is not good, in arrest of judgment.

Chitty says, (1 Chitty PI. 61.) “ if the action be brought for the personal 'suffering, or injury of the wife, the decla.ration ought to conclude to their damage, (husband and •wife,) and not to that of the husband alone, for the damages •will survive to the wife, if the husband die before they are recovered; and care must be taken not to include in' the declaration any statement of a cause of action, for which the husband alone ought to sue.’’ In Russell and wife v. Corne, (1 Salk. 119. and note,) the husband and wife sued for the •battery, and false imprisonment of the wife,per quod, the’ husband's business remained undone. And after verdict, there was a motion in arrest of judgment; but Holt, Ch. J. said, I will not intend the judge suffered, that to be given in evidence and the plaintiffs had judgment. (2 Lord Raym. 1031. 2 Chitty on Pl. 374. notes 0, and r. Smalley v. Kerfoot and wife. Stra. 1094.) In Todd and wife v. Bedford, (11 Mod. 26 f.) for assaulting the wife, and driving a coach over her, and that the husband laid out money in her cure, amotion in arrest was denied. It seems, after verdict, that where there is a proper cause of action in the wife, though circumstances are added, which are actionable by the husband only, the declaration is good by husband and wife ; and the additional circumstances are only regarded as matter of aggravation. In Staunton and wife v. Hobart, (Sid. 224. Keb. 784.) trespass for beating the wife, and tearing her coat, ad damnum ipsorum, was held bad after verdict. But that ancient case stands opposed by a current of subsequent decisions, which are reviewed in the notes to Russel and wife v. Corne, (1 Salk. 119. 6th ed. by Evans.)

Upon the whole, we think the plaintiffs are entitled to judgment on the verdict.

Judgment for the plaintiffs.