Cole v. Seeley

The opinion, of the court was delivered by Redfield, Ch. J. 1. In this case the defence is properly presented before the auditor, as has been often held, in analogous cases. It could not be presented by way of plea, the declaration being general, and the plaintiff not bound by his oyer. 2. The only question properly arising, in regard to the infancy of the parties, being whether the wife, dum sola, was liable. If she is, the husband is equally, during coverture, whether infant or adult. She is clearly as liable as before coverture, and the husband equally, without regard to his own infancy. And the account being for necessaries furnished the wife while an infant, she is clearly liable. 3. The suit is like any other joint suit. It must be against both, unless one or the other has abjured the realm, and thus become, as to this jurisdiction, civiliter mortuus. In that event, we suppose, the wife even might be sued alone. Our statutes allow this to be shown, by setting it up in the writ, in which case it may probably be denied by plea; and it may also be shown by a non est inventus return of the officer, which is held, in our practice, equivalent to the common law outlawry. Judgment affirmed.