Little v. Gardner

Decided August 15, 1831

Superior Court of New Hampshire · decided 1831-08-15

This was a writ of entry. The cause was submitted by a rule of this court to referees, who made a report, signed by two of the referees, and put on file with the clerk of the court, on the 8th January, 1830. But the report was afterwards taken from the files and lost. A copy of the report was, however, taken, before it was put upon file, which was proved by the person who made it, to be a true copy.

Decided 1831-08-15

By the court.

¶1It has been objected in this case, that a writ of entry cannot be maintained against a husband and wife, because a wife cannot be a disseizeress. But this is a mistake. A married woman may disseize another without the assent of her husband, and the husband will be liable to an action with his wife fpr such dis-seizin. Perkins, sec. 46. But a married woman can in general disseize only by her own actual entry. Co. Litt. 180, b, note 4 ; Fitz H. N. B. 179. However, where a husband is in possession of land in right of his wife, a writ of entry must be brought against both. Com. Dig. “ Baron & feme,” Y ; Perkins, sec. 46.

¶2When a report of referees is lost, we have no doubt that judgment may be rendered upon a copy of the report duly proved, or upon affidavits of the contents of the report. 3 Taunt. 45, Hill v. Townsend; Caldwell, 163 ; 1 Strange, 526, Robinson v. Davis.