Patterson, Rencher & Co. v. Gooch

108 N.C. 503 | N.C. | 1891

Clark, J.:

The plaintiff contends that the statement set out in the record, is, in effect, a written consent on the part of the husband, and the nature of the contract being such as necessarily to imply a. charge upon the wife’s personal estate, that the feme defendant is liable by virtue of The Code, §1826. AVe need not decide how that may be, for if we concede that it is so, the remedy cannot be sought in a Court of a Justice of the Peace. Dougherty v. Sprinkle, 88 N. C., 300; Farthing v. Shields, 106 N. C., 289.

The cases cited by the appellant in support of his position that it was in the discretion of the Court below to allow or refuse the plea of coverture because not made at the first term (Neville v. Pope, 95 N. C., 346 and Vick v. Pope, 81 N. C., 22), only go to the extent that after judgment it is too late for the coverture to be set up unless there has been excusable neglect, mistake, fraud or the like.

Nor will the principle laid down in Burns v. McGregor, 90 N. C., 225, that it would be a fraud to let the feme defendant keep the goods and set up the defence of coverture against an action for the recovery of the price of them, avail the plaintiff, for it is not shown that the feme defendant, or the firm of which she is a member, now has in possession any of the goods for the price of which this action is brought, nor is this an action of claim and delivery for the specific goods. It was competent for the Judge to refuse to dismiss the appeal. Marsh v. Cohen, 68 N. C., 243; Richardson v. Railroad, 82 N. C., 343.

Per curiam.' No error.