The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-05-21

BEFORE JUDD Cd, M'CULLY, PRESTON, RICAER'
TON AND DOLE, u.
Opinion or the Court by Preston, J.
This is an action of assumpSit in
which the plaintiff, Ursolda Sher-
man, sues the defendant, T. Har-
rison, as administrator of the estate
of MS late father, 5. Harrison, for
the sum Of $1,000 and interest
thereon from May, 1881, being
money alleged to have been received
by the said intestate upon trust,
and upon the agreement of the said
intestate, 10 pay the same TO her
with interest when 50 requested by
the said plaintiff.
The defendant pleaded the general
issue ana the statute Of limitations.
The case was tried by Bickerton,
j., without a jury on the 18th of
February last.
From the evidence it appears that
the plaintiff lent this sum of : 500
10 the defendants intestate, the
plaintiff being at that time married
woman, the money being the pro-
ceeds Of her real estate $1,000 and
Of certain horses $500 sold by her.
The plaintiff put in evidence a
deed dated ID April, 1881, whereby
the plaintiff and Horace Sherman,
her husband, conveyed certain real
estate to Philip Milton in con-
sideration Of I,5OO to the plaintiff
and her husband paid by said
Milton.
This deed was executed by the
plaintiff and by her husband by his
attorney-in-fact, J. l. Dowsett.
At the trial, defendants counsel
asked the plaintiff on cross-examina-
ton, Are you a married woman?"
whereupon PLAINTIFFS counsel OBJ
jected, on the ground that the de-
PENDANT had not pleaded coverture,
and that the action was brought
under the "Married Woman's Act,
1885," which objection the Court
sustained, and the defendant duly
excepted.
On the 18th February the said
Justice gave Judgment for the
plaintiff for -, 134 and costs.
To this decision the defendant
excepted a. being contrary to law,
which exception was duly allowed.
By THE CoURT.-The defendant
not having given notice Of his in
tentiOu to rely upon the cOyerture
OF the plaintiff, the Court was right
in disalIowing the question asked,
and the first exception must, there
fore, be overruled.
The plaintiff herself having put
in the conveyance from herself and
husband to Milton, it must be taken
to be the fact that the plaintiffs
husband was alive on the I'd April,
1881, the proceeds of the plaintiffs
real estate was then converted into
personal estate by the voluntary act
Of the parties, and became the pro-
perry of the husband the proceeds
Of the horses, being personal estate,
also belonged to the husband.
The money was lent to Harrison
for the purpose, a appears by the
testimony, Of betting upon horse
races, aud not upon any trust as
alleged in the petition, and the
plaintiff must be taken to have been
the agent of the husband for that
purpose. The husband could have
recovered the money from Har-
rison as his own, and not as a chose
in action Of his wife, the plaintiff,
and the action should have been
in his name if alive, or in
that Of his legal personal represent
alive if dead.
This point was not raised at the
trial, nor was it argued at the hear
ing Of the exceptions but counsel
were requested by the Court after
wards to argue the matter.
Under these circumstances, we
think the decision excepted to
should be reversed, and a new trial |
ordered. But as, from our view Of !
the case, the plaintiff cannot succeed
in her own right, and if a new suit |
Is brought it will be out of time |
two months from the refusal of |
the administrator to pay the
claim having elapsed), we think |
the justice Of the case will be met |
by allowing the plaintiff three /
to amend the petition by |
her husband the party |
plaintiff, or, if administration on |
MS estate be obtained, by substitut-
ng his personal representative as
plaintiff, or in such other manner |
l. may be advised.
The plaintiff must pay the costs
If the exceptions and of the amend
nents, if made.
A. 5. HartweIl, for plaintiff; Cecil
Brown, for defendant.
Honolulu, April +, 1889.