Tucker v. Gordon

5 N.H. 564

• Court: Superior Court of New Hampshire
• Decided: January 15, 1832
• Status: Published

Opinion

By the court.

We shall first examine the question, whether the wife ought to have been joined in this suit.

In general, for all causes of action, which were complete in the wife, before’ the coverture, she must be joined in the suit. 1 Chitty’s Pl. 17 — 21 ; 2 Starkie's Ev, 685 ; 1 M. & S. 176, Ramsey v. George ; Bingham on Coverture, 246 ; 6 B. & C. 253, Checchi v. Powell ; 8 D. & E. 631.

But wherever she is the meritorious cause of an action, accruing during the coverture, she may be joined in the suit, or the husband rnay sue alone. 1 Chitty's Pl. 17 — 21 ; 5 Greenl. 417, Templeton v. Cram ; 1 B. & B. 443, Arnold v. Revoult; 15 Johns. 479, Decker v. Livingston ; 4 D. & E. 616 ; 2 M. & S. 393; 3 East, 331, Brown v. Benson.

In this case, the implied promise, on which the action is founded, has arisen, and all the circumstances, on which it rests, have occurred, since the coverture. It was, therefore, unnecessary to join the wife in the action.

With respect to the other question made in this case, is it seems to be settled, that in general, a husband has the control of a legacy given to his wife. He may release of assign it, by a deed, or other instrument, to which she is not a party ; and payment to her is no bar to an action brought by him. 1 Equity Cases Abridged, 301 ; 3 Cowen, 590, Udall v. Kenny; 5 Johns. Ch. Rep. 196, Schuyler v. Hoyle; Bingham on Coverture, 216 ; 4 Burns’ Ecclesiastical Law, 319 ; Lovelass, 247 — 248.

Judgment for the plaintiff'.