49 Vt. 26 | Vt. | 1876
The opinion of the court was delivered by
I. Though the briefs of counsel present a variety of points and views, the defendant in the argument discusses but two, viz., that suit cannot be maintained in the name of the plaintiff by next friend, she being feme covert when the suit was brought; and under the motion in arrest, that upon the declaration, judgment cannot lawfully be i-endered for the plaintiff.
It is to be assumed, though the face of the record does not affirmatively show it, that the trial proceeded as upon the general issue. That being so, any mere matter of abatement could not be available on the trial. Either by plea or by demurrer in abatement, such matter must be presented, in order to make it the subject of adjudication, and to have effect as the ground of judgment in the case.
II. As to the motion in arrest. That can be available only to test the sufficiency of the cause of action set forth in the declaration. The declaration sets forth lawful ownership and possession by the plaintiff, and wrongful conversion by the defendant. Nothing outside the declaration is the subject of cognizance under that motion. If, therefore, there is defect of right of recovery in the declaration, it must be by reason of the expression, “ who, being a married woman, and her husband separate from her.” Unless this expression shows that the plaintiff had not title, such as might give her a right of recovery for a wrongful conversion, in an action in proper form as to parties plaintiff, then the motion must be fruitless. The statute of 1867, No. 21, as expounded in 47 Vt. 502, and the case of Child v. Pearl, 43 Vt. 224 and Clark et al. v. Peck et al. 41 Vt. 145, as well as many others, show that a married woman may have such a right, and that she may enforce it by proper action. In this case, if she had sued in her own name, joining her husband as co-plaintiff, setting forth the title and conversion as is done in this declaration, no question could be raised as to the sufficiency of the declaration in respect to title and conversion. Suing in her own name, with what she says about “ being a married woman and her husband separate from her,” has no tendency to show that she was not the title-holder, and entitled to the personal possession of the property. So what is thus contained does not operate to show that she had not a valid and enforcable cause of action in her own right for the alleged conversion, if such .action is brought in proper form. On this subject of such personal right in a married woman, a case decided in Windham County a few years ago (not reported), Eliza Chase
Judgment affirmed.