Ballard v. Russell

33 Me. 196

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1851
• Status: Published

Opinion

Wells, J., orally. —

It is suggested that the discharge by the husband to the defendant was obtained through fraud. The Court cannot yield to that suggestion. If the plaintiffs would have availed themselves of it, the question should have been submitted to the jury.

By the common law, both husband and wife must join to maintain an action like the present. This case does not come within any exception to the principles stated. The husband has not abjured the realm; and the facts stated in the report of the case, do not deprive him of the power to control the action nor to discharge the cause of it.

The statutes giving additional rights and remedies to married women, relate to property, and do not apply to this case. Hence the proposed amendment, by striking out the name of the husband, would be of no advantage to the wife.

It appears that the husband, the day after he had discharged the cause of action, gave his wife a written power of attorney - to prosecute the claim for her own benefit. But the cause of action having been previously discharged, could not be revived by such an instrument.

It results that the action cannot be maintained, and the plaintiffs must be called.