Sheppard v. Kindle ( 1842 )

Geeen, J.

delivered the opinion of the court.

The declaration in this case, sets out as the cause of action, that Nicy B. Shepperd, then and still being the wife of George P. Shepperd, on the 9th of August, 1838, (together with Allen B. Lane and B. Edmundson who are not sued,) made her promissory note, payable ninety days after date, by which she promised to pay the plaintiff three hundred dollars. In the court below, the plea was withdrawn and a judgment was taken nil dick, and a motion in arrest of judgment made and overruled.

It is not insisted here, that the note executed by Nicy B. Shepperd, afeme coven, created any legal obligation on her, or her husband Geo. P. Shepperd; but it is said her coverture should have been pleaded in abatement. When a feme executes an obligation, and afterwards marries and is sued alone, the plea in abatement, because the husband is not joined is the proper defence. In that case, the defence does not go to the cause of action, but the form in which it is brought. But in the present case, there is no sufficient cause of action. The note executed by the feme coven creates no right of action against her,” or her husband. Consequently if the facts had not appeared in the declaration, a plea in bar would have been the proper defence. But the declaration sets out the facts which show there is no cause of action, and consequently it is bad upon general demurrer, or may be taken advantage of by motion in arrest of judgment. We think therefore the judgment should have been arrested, and the circuit court refusing to do so, the judgment must be reversed.