Saltmarsh v. Candia
Supreme Court of New Hampshire
Case, by Henry Saltmarsh and wife against the town of Candia, for personal injuries received by Mrs. Saltmarsh by reason of a defect in a highway. Plea, the general issue. The injuries were received Oct. 8,1867, the writ was dated Sept. 21,1868, and Mrs. Saltmarsh died Nov. 21,1868. At the October term, 1870, the defendants objected that the action could not then be maintained by the husband alone, no administration having been taken on'the wife’s estate.
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Case, by Henry Saltmarsh and wife against the town of Candia, for personal injuries received by Mrs. Saltmarsh by reason of a defect in a highway. Plea, the general issue. The injuries were received Oct. 8,1867, the writ was dated Sept. 21,1868, and Mrs. Saltmarsh died Nov. 21,1868. At the October term, 1870, the defendants objected that the action could not then be maintained by the husband alone, no administration having been taken on'the wife’s estate. The objection was overruled, subject to exception; and a trial was had, resulting in a verdict for the plaintiff, which the defendants…
1Opinion of the CourtSmith, J.
The husband could not have brought this suit alone in the lifetime of the wife.
The wife was a necessary party; the husband was " but an ennabling party, a side supporter, and not the actor ;" "he died as a party when his wife died." At common law, the right of action did not survive to the husband, but the suit would abate by the wife's death, and could not be revived. 1 Chitty's Pleading 75;-see, also, Norcross v. Stuart, 50 Maine 87. Wood v. Griffin, 46 N. H. 230, cited by the plaintiff, was an action of trespass, quare elausum, brought by husband and wife, for trespass on the land of the…
2Cases cited2 opinions
- Norcross v. StuartSupreme Judicial Court of Maine · 1863
- Buck v. GoodrichSupreme Court of Connecticut · 1865
3Cited by1 opinion
- Fleet Bank v. Chain Construction Corp.Supreme Court of New Hampshire · 1993