Gerry v. Gerry

77 Mass. 381

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1858
• Status: Published

Opinion

Metcalf, J.

This case is not affected by either of the recent statutes of the Commonwealth concerning married women, but is to be decided by the rules of the common law. By that law, the watch and chain, which are the subjects of this suit, were the sole property of the husband. No authority need be cited to this point. It follows that the wife has wrongly joined as plaintiff. And the misjoinder of plaintiffs is fatal, both in actions of tort and in actions of contract. When the misjoinder appears on the declaration, it is fatal on demurrer; and before our practice act (§ 22) took effect, it would have been fatal on motion in arrest of judgment. When it appears only in evidence at the trial, it is ground of nonsuit, or requires a verdict for the defendant. Archb. PL 54. Browne on Actions, 307. Glover v. Hunnewell, 6 Pick. 224. Ulmer v. Cunningham, 2 Greenl. 117. These rules of law are applied as well to husbands and wives as to other misjoined plaintiffs. Archb. Pl. 39. Broom on Parties, 229, 230. Moores v. Carter, Hempst. 64. Van Arsdale v. Dixon, Hill & Denio, 358. Rawlins v. Rounds, 27 Verm. 17.

In actions of tort, there is a distinction between nonjoinder and misjoinder of plaintiffs. Nonjoinder is matter of abatement only. Thompson v. Hoskins, 11 Mass. 419. Phillips v. Cummings, 11 Cush. 469.

The verdict must be set aside, and a new trial granted. But a new trial will be of no avail, unless the declaration is so amended as to make the husband sole plaintiff.

Exceptions sustained.