Daniels v. Daniels

56 N.H. 219, 1875 N.H. LEXIS 34

• Court: Supreme Court of New Hampshire
• Decided: December 7, 1875
• Status: Published

Opinion

Cushing, C. J.

By General Statutes, cli. 163, sec. 6, “ every libel shall * * be signed by the libellant, if of sound mind and of the age of legal consent.”

The provision in regard to the signing of writs by the justice, and that concerning the signing of the libel by the libellant, are almost exactly in the same terms. The statute in regard to the signing of writs —Gen. Stats., cli. 203, sec. 12—has been the subject of judicial construction in Kidder v. Prescott, 24 N. H. 263, * in which it was held that the signature is not that of the justice unless it is written in his presence. In the same way I think it must be held that the signature cannot be, under the statute, that of the libellant, unless written in her presence. There is no suggestion that the libellant is not of sound mind and of the age of consent.

The result, then, is, that the libel was properly dismissed, and, as the merits of the case, have not been tried, it was also properly dismissed without prejudice.

Ladd and Smith JJ., concurred.

Exceptions overruled.

* And see Willard v. Willard, 4 Mass. 506, Winslow v. Winslow, 7 Mass. 96, Gould v. Gould, 1 Met. 382, and authorities cited in Woodbury v. Woodbury, 47 N. H. 13, 18.

Reporter.