Whitmore v. Delano

6 N.H. 543

• Court: Superior Court of New Hampshire
• Decided: July 15, 1834
• Status: Published

Opinion

Parker, J.

The husband is liable for the torts of the wife committed after marriage.

There seems to have been some diversity of opinion whether the wife is liable to be sued where the tort is the joint act of the husband and wife, but where the act is done by her alone sire is liable, and whenever she is sued for a tort, there seems no doubt that the husband should be joined. Bac. Abr. Bar. & Feme, L.; Com. Dig. Bar. & Feme, Y; Bing. Inf. & Cov. 255; Reeve’s Dom. Rel. 72; 1 Chitty’s Pl. 81; Yelv. Rep. 165, Draper v. Fulkes; Noy’s Rep. 79, Newman v. Cheyney; Owen’s Rep. 48. Baldwin v. Mortin; 1 Salk. 114, Carpenter v. Faustin; Cro. Jac. 203, Hales v. While; ditto, 661, Berry et ux v. Nevis; Cro. Car. 406, Mayo v. Coggeshall; ditto, 254, Rhemes v. Humphreys et ux; ditto 494, Perry v. Diggs; 2 Strange, 1237, Finch et ux v. Dibdin et ux; 1 Wils. 149, Langstaff v. Rain et ux; Yelv. 106, a. note; 2 Saund. 47, i.; 3 N. H. Rep. 66.

Whatever maybe the authority of Sikes v. Johnson, 16 Mass. Rep. 389, upon the point there decided, it does not appear that the husband was not joined in that case.

That the judgment was rendered upon an agreement of the defendants, by their attorney, cannot avail to make the proceedings valid. Susan Whitmore being a feme covert she could not constitute an attorney. 3 Taunton, 261, Oulds v. Sanson; 4 D. & E. 362, Reed v. Jewson, cited in Caudell v. Shaw; 3 B. & Pul. 128, Maclean v. Douglass. Of course the agreement made by the attorney cannot bind her, or her husband, and he may avoid it by writ of error. Bac. Abr. Error, B.; 2 Saund. 101, e. note.

It does not appear that Frary, the other defendant, if he had been sued alone, might not have been bound by the judgment.

But the judgment is entire, and there is a general consent of authority that in such case all must join in the writ of error, and the judgment be reversed as to all. 6 Co. 25, Ruddocks case; Yelv. 209; 1 Strange, 237; ditto 606; 1 Ld. Raym. 71; ditto 328; 2 Ld. Raym. 870; ditto, 1403; 1 Wils. 88; 2 Saund. 101, e. note; ditto, 212, a. note; 12 Johns. 434, Richard & Finney v. Walton; 14 ditto, 417, Arnold & a v. Sanford; 3 Mass. Rep. 223, Andrews v. Bosworth; 11 Mass. Rep. 383, Shirley v. Lunenburgh; 4 Con. Rep. 190, Gaylord v. Payne.

If one refuses to join he must be summoned and severed. Cro. Eliz. 892; Cro. Jas. 94; 2 Strange, 783; 2 Saund. 101, f. ; 11 Mass. Rep. 384; 8 Johns. 440, (2d ed) Bradshaw v. Callaghan.

In 3 Burr. 1792, Yates, J. gives as the reason why a writ of error by one alone, upon a judgment against two, is not good, that it is upon account of the inconvenience that would arise from a perpetual delay of the execution, if every defendant might bring a writ of error by himself: The same reason is given in Bac. Abr. Error, B.; Tidd’s Pr. 1054; 2 Saund. 101, f.

But the reason given in other cases is that the judgment is entire, and cannot be bad as to one and good against the other: and this reason will hold good for joining all here, otherwise one might have error and the judgment be affirmed generally, and another upon a separate writ of error afterwards assign a different error, and the judgment be entirely reversed-

There can be no writ of error after affirmance. Rigeway’s Rep. 61, Harris v. Burley; 2 Strange, 975.

Independent parties to a suit, having several and distinct interests, may have separate writs of error. 10 Mass. 68; 11 ditto, 384; 9 ditto, 532; 9 Cowen, 304 But that is not this case-

Jadgment reversed