Thorne v. Dillingham
Court for the Trial of Impeachments and Correction of Errors
Motion in arrest of judgment. The declaration was in assumpsit and contained two counts: (1) That the testatór, in his lifetime, was indebted to the plaintiffs for money had and received by him to and for the use of the said plaintiffs; and being so indebted, in consideration thereof, afterwards, in his lifetime, on, &c. at, &c. undertook and promised the said plaintiffs to pay them, &c.
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Motion in arrest of judgment. The declaration was in assumpsit and contained two counts: (1) That the testatór, in his lifetime, was indebted to the plaintiffs for money had and received by him to and for the use of the said plaintiffs; and being so indebted, in consideration thereof, afterwards, in his lifetime, on, &c. at, &c. undertook and promised the said plaintiffs to pay them, &c. (2) A like indebtedness by the testator in his lifetime and at his decease, in consideration of which the defendant, as his executor, after his death, on, &c. at, &c. promised the plaintiffs to pay them the…
1Opinion of the Court
By the Court, Beardsley, J.
In general, a wife cannot join with her husband in an action upon any contract made during coverture, whether with the wife alone as the party, or with the two jointly. But to this rule there are exceptions; for where the wife is the meritorious cause of action, and a party to an express promise founded thereon, she may be joined with her husband in an action for its violation. (1 Roper on Husb. and Wife, 213; Rose v. Bowler, 1 H. Bl. 108; Weller v. Baker, 2 Wils. 424; Buckley v. Collier, Carthew, 251; S. C. 1 Salk. 114; Brashford v. Buckingham, Cro. Jac. 77; id. S.…
2Cases cited2 opinions
- Executors of Schoonmaker v. ElmendorfNew York Supreme Court · 1813
- Staley v. BarhiteNew York Supreme Court · 1804
3Cited by2 opinions
- Pickering v. DeRochemontSupreme Court of New Hampshire · 1863
- Howland v. Fort Edward Paper Mill Co.New York Supreme Court · 1853