The opinion of the court was delivered, by
Barrett, J.The suit is brought for a personal tort to the wife — for a cause of action that would survive to her. The husband could not sue and recover for it without joining the wife as co-plaintiff; nor would he be permitted to discharge it in fraud of the wife. When abandoned by the husband, the wife has been sustained by the court in bringing a suit for such a cause as this, joining the husband as co-plaintiff, and in prosecuting it to judgment and execution, in spite of the husband’s refusal, and of his efforts to thwart her by ordering non suit, and executing discharges of the suit and cause of action. In the present case the objection is, that the wife sued by next friend in her own name, instead of suing in the name of her husband and herself as plaintiffs. Whether this is allowable or not is to be determined in view of the facts touching the condition and whereabouts of her husband, and the relation between them caused thereby.
In the first place, he is insane — intellectually dead for the present. In the next place, he is out of the State in an insane asylum, without will or ability to return and act as husband, to any of the intents of the marital relation. We think that, to every practical intent, and upon every reason bearing on the subject, this must be regarded as endowing the wife with quite as much right to act in her own name in such a case as the present, as she would have if her husband was civiliter mortuus,' or had abjured the realm and abandoned her.
It is to be remarked that the objection is purely technical, and grounded on an artificial rule of pleading. It does not touch nor *588rest upon any matter that affects the substantial right and liability on which the suit is brought. If the defendant slandered the plaintiff, he is liable to respond for it in the right of the wife, — and in exactly the same measure, whether the suit be brought in the name of husband and wife, or in the name of the wife, as in the present case. So the defendant is put to no prejudice on this score, by being held in this suit as now brought, beyond what he would be if the husband had been joined as co-plaintiff. He is called upon to answer for the tort charged, and only that, — and it is no matter of his what may come of the result, as between the husband and wife.
Wo think the principle of the case of Royce v. Vandeusen, 49 Vt. 26, and of the case therein cited, in Windham County, of Chase and Wife v. Galpin and Wife, as well as of various cases referred to in the argument, and of others not cited, gives full warrant for holding that this action is not subject to the" objection which constitutes the ground of the motion. The motion takes effect upon the facts shown by the writ and declaration, — and unless they show, on their face2 that the action cannot be maintained, the motion is powerless. The motion does not deny any facts, nor aver any facts. It puts in issue, no facts. It merely ■ asks the action of the court upon the facts shown by the writ and declaration ; and it is virtually a demurrer in abatement for nonjoinder of a party as co-plaintiff.
While, in view of the grounds and views on which the cause was argued by counsel for the plaintiff, we have disposed of the case without question as to the pi’opriety of the motion, as a mode of presenting the objection of non-joinder and invoking the action of the court upon it, we think it proper to say, that such a motion, on such ground, and for such a purpose, is unknown to the books and rules of pleading; and if the point had been presented in the argument, objecting to it as improper in mode, we should have dismissed the motion without going into the merits of the subject.
Judgment affirmed, and cause remanded.