Rawlins v. Rounds

The opinion of the court was delivered by Redfield, Ch. J. This is a demurrer to the plaintiff’s declaration. * The declaration is in tresspass for personal property. There seems to be no sufficient allegation of either title or possession in the plaintiffs, at the time of the injury. All that is alleged is that the property was that of the wife, which is equivalent to saying it was the husband’s, and as property draws after it possess [19] ion, this would create a sufficient title in the husband to maintain the action, but none at all in the wife. The wife’s personal property-in possession vests absolutely in the husband, upon the marriage. And for any injury done to it subsequently, she cannot join, and if she do, it is good ground of demurrer, or motion in arrest, or even of error. 1 Chit. Pl. 93. 1 Salk. 114. 1 Hen. Bl. 108. 2 Wils. 424. Cro. Jac. 644. 2 Blac. 1236. In order to render it proper for the wife to join in this action, we must presume this property was the wife’s, and taken from her before marriage, nothing of which appears in the declaration. For if the wife earned the property after marriage, and so was in some sense the meritorious cause of -action, as the books term it, this will not enable her to have a separate property in things personal, reduced to possession; but both the property and the possession become that of the husband. And a marriage settlement, to enable the wife to hold separate personal property in possession, could only be created by the intervention of trustees, and the legal possession would be in them, for -her benefit, so that it seems to us altogether impossible to get over this first difficulty, which seems fatal on general demurrer. The case of Gay and wife v. Estate of Rogers, 18 Vt. 342, referred to by the plaintiff’s counsel, only goes to recognize the right of the wife to join with the husband in cases of express promise to the wife, when her property or services are the consideration for the promise, and does hold that she cannot, even in such cases, join in an action upon an implied promise, or book account. Judgment that declaration is insufficient.