State v. Harvey

Superior Court of New Hampshire

State v. Harvey

3 N.H. 65

DecidedMay 15, 1824

StatusPublished

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Bluebook

State v. Harvey, 3 N.H. 65 (N.H. Super. Ct. 1824).

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Opinion

Richardson, G. J.

In this case, the forcible detainer is alleged as the joint act of the husband and wife ; and it is contended, that this process cannot be supported against a wife, for acts done jointly with her husband.

In order to ascertain the weight of this objection, it is necessary to examine the nature of the proceedings in a case of forcible entry and detainer.

The mode of proceeding is prescribed by the statute of Feb. 16, 1791, (1 N. H. Laws 341,) and although the proceedings are in the form of prosecutions for crimes, and, in certain cases, a line may be imposed upon the respondent ; yet still the proceeding must be viewed in some respects as a private remedy. Thus, the court may award to the complainant restitution of the premises; may adjudge costs to the complainant or respondent; the respondent is summoned to appear before the justices, and if he neglect to appear, they may proceed to the hearing in his absence. In these respects, the proceedings are, in their nature, a mere civil remedy.

It is said, that for wrongs, in which tw o persons may concur, a husband and wife may be sued jointly for the act of both. 1 Chilly’s Pl. 81.—Yelverton 106.—1 Ventris 93.—2 Levintz 63. And we are of opinion, that so far as redress for a private wrong, done by a husband and wife jointly, is sought by the process of forcible entry and detainer, the wife may be made a party.

But in this case, a fine ivas imposed upon the husband and wife jointly, and it is contended that the wife could not be II-[67]*67able to punishment for an act done jointly with her husband ; because, in such case, she must be presumed to act by his coercion. Hawkins P. C. B. 1, cap. 1, sec. 9.—1 Mass. Rep. 476, Com. vs. Trimmer & a.—10 Mass. Rep. 152, Com. vs. Neal & wife. This exception must in our opinion prevail, and the proceedings, so far as relates to the fine, must be quashed. But the rest of the proceedings may be affirmed. 3 Mass. Rep. 268, Com. vs. Carpenter.—5 Mass. Rep. 420,

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Richardson, G. J.

In this case, the forcible detainer is alleged as the joint act of the husband and wife ; and it is contended, that this process cannot be supported against a wife, for acts done jointly with her husband.

In order to ascertain the weight of this objection, it is necessary to examine the nature of the proceedings in a case of forcible entry and detainer.

The mode of proceeding is prescribed by the statute of Feb. 16, 1791, (1 N. H. Laws 341,) and although the proceedings are in the form of prosecutions for crimes, and, in certain cases, a line may be imposed upon the respondent ; yet still the proceeding must be viewed in some respects as a private remedy. Thus, the court may award to the complainant restitution of the premises; may adjudge costs to the complainant or respondent; the respondent is summoned to appear before the justices, and if he neglect to appear, they may proceed to the hearing in his absence. In these respects, the proceedings are, in their nature, a mere civil remedy.

It is said, that for wrongs, in which tw o persons may concur, a husband and wife may be sued jointly for the act of both. 1 Chilly’s Pl. 81.—Yelverton 106.—1 Ventris 93.—2 Levintz 63. And we are of opinion, that so far as redress for a private wrong, done by a husband and wife jointly, is sought by the process of forcible entry and detainer, the wife may be made a party.

But in this case, a fine ivas imposed upon the husband and wife jointly, and it is contended that the wife could not be II-[67]*67able to punishment for an act done jointly with her husband ; because, in such case, she must be presumed to act by his coercion. Hawkins P. C. B. 1, cap. 1, sec. 9.—1 Mass. Rep. 476, Com. vs. Trimmer & a.—10 Mass. Rep. 152, Com. vs. Neal & wife. This exception must in our opinion prevail, and the proceedings, so far as relates to the fine, must be quashed. But the rest of the proceedings may be affirmed. 3 Mass. Rep. 268, Com. vs. Carpenter.—5 Mass. Rep. 420,

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3 N.H. 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harvey-nhsuperct-1824.

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