Shoutee v. Swindles

Fowler, J.

The report of the auditor finds due from the defendant to the plaintiff, for her services in the Portsmouth Steam Factory, and interest from the date of the writ, the sum of $147.86, with the additional fact that the defendant himself received the pay for those services. This report makes a prima facie case for the plaintiff upon the pleadings, and she is entitled to judgment upon it, unless, upon the state of facts found by the auditor, accompanying his report, and shown by the annexed deposition of Mary M’Kennon, she is prevented from maintaining the action. The auditor finds it to have been proved be *561 fore Mm, that more than twelve years before the date of the writ, the plaintiff lived in England, with John Worrall, as his wife, and had a child by him, while the deposition of Mary M’Kennon tends to prove the same facts, with the additional circumstance that the plaintiff was residing-in this State separate from her husband, who was then, and still is resident in England, during the period when she performed the services for which compensation was sought in the present action. The finding of the auditor, and the statements of the deposition, furnish evidence from which a jury would be justified in finding, that, if the plaintiff be a married woman, she is the wife of an alien, resident in England, and that she was living in this State separate from her husband, during the entire period of the services for the defendant, and long before and ever since — more than fifteen years — thus bringing her fully and completely within the provisions of section 4 of chapter 149 of the Revised Statutes, (Comp. Laws, chap. 158, sec 4) which expressly enact that, “ if any woman, being the wife of an alien, or of a citizen of any other State, shall have resided in this State for the term of six months successively, separate from her husband, she shall be capable of making contracts, may sue and be sued in her own name, for any cause of action that may accrue during such separate residence, may acquire and hold property in her own right,” &c. As this court, under the agreement of the parties, are to consider this evidence as a jury might do, and draw from it such inferences as a jury would be authorized to draw from it, we are unable to discover any thing, in the facts reported by the auditor, or disclosed in the deposition, tending to invalidate the plaintiff’s right to maintain her action as prima facie established by the auditor’s report.

'Were it suggested that Shouter is not, upon the evidence before us, the true name of the plaintiff, but Worrall; it would be sufficient to say that she appears to have been *562 known under her present name by the defendant’s witness, while performing the services she rendered for the defendant. Besides, if the defendant would have taken advantage of the misnomer, it was matter in abatement, which he "waived, by his neglect to plead it seasonably, and by answering to the action and proceeding to try it" under the assumed name of the plaintiff.

Entertaining these views, we think the plaintiff rightfully entitled to judgment on the report for the amount found by the auditor, with interest from the date of his report.

Judgment for the plaintiff.