Bergeron v. Dartmouth Savings Bank

63 N.H. 195

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1884
• Status: Published

Opinion

Doe, C. J.

It is not now material whether, in the suit brought by the. bank, the declaration should have alleged that Adeline Bergeron was a married woman, or that she did not sign the note as surety. Van Buren v. Swan, 4 Allen 380; Blake v. Sawin, 10 Allen 340. She was legally competent to resist that suit. She could sue and be sued in all matters in law and equity in the same manner as if she were unmarried. Laws 1876, c. 32; G. L., c. 183, s. 12. Her legal capacity to set up the defence of her disability to be a surety of her husband was not less than his capacity to set up the defence of want of consideration, or the statute of limitations. The objections she now makes to the judgment could and should have been made to the action before judgment. Such objections, when seasonably taken and overruled, can be brought to the law term on a bill of exceptions. They are not seasonably taken after judgment, and cannot be brought to the law term by writ of error. Peebles v. Rand, 43 N. H. 337; Flanders v. Bank, 43 N. H. 383. The plaintiff’s attempt to make the contract of suretyship which she could not make, was not a waiver of her disability (Savings Bank v. Sanborn, 60 N. H. 558) ; but not being disabled to present the defence of disability, she waived it by not presenting it before judgment.

Writ dismissed.

All concurred.