The Sun.
London, England, 1838-01-26 00:00:00

MORLEY if. COOPER.

In this case an injunction was moved for egainst the defendant, under
the following circumstances:—The Wife of the plaintiff (who is an officer
in the Marines, at present stationed in the Mediterranean), a short time
ago took furnished lodgings, into which she was about to remove
furniture, when she heard that the tenant was in arrear for rent. She
waited -on the landlord, who promised not to distrain, but, notwith-
standing this assurance, he proceeded to do so two or three days after
the removal. Come

His HONOUR said it appeared that the plaintif had been induced to
place her goods in the house by the promise given, and granted the
injunction.

Hiallouft then proceeded with the unopposed petitions, and the
part heard caw of Lowry V. Fulton, which was concluded at the time our
reporter left the Court.

ROLLS' COURT-at-US DAY.)

WAKE V. PkIIKER.—JUDGNIIINT.
The testator in this case devised and bequeathed an equal fifth part of
his real estate and of his residuary personal estate to the plaintiff; Mrs.
Wake, for her separate use during her life, after her death to his chil-
dren in equal shares. The bill was filed by Mr. and Mrs. Wake and
their children two of the children being infants, suing by Mr. Wake as
their next friend) against the trustees and executors and other devisees
and legatees of the real and residuary personal estate for the usual accounte,
and for payment to Mrs. Wake of her share of the residuary personal es-
tate. To this bill two of the defendants, both of whom were residuary lega-
tees, and one of whom was trustee and executor, put in a general demurrer
for want of equity, the grounds of which were, first, tt at the husband and
wife ought not to be permitted to sue together for the separate estate of
the wife; and secondly, that the husband having no interest in the se-
parate estate of the wife, was, on that account, mis-joined with the
plaintiffs.
being,
e ihnagd,
Lord LAVGDAI.II, in;
giving judgment this morning, said Courts of
ei r
no nextild e andi, ,
na n a e
married
jo te, t
he
Courts woman
Equity had from an early period permitted married women to sue for
aithetior
hseeprasreaptearesatteatebythe
estate,
d as friend,
acted on the principle that in the prosecution of such suits her autho-
rity and consent was necessary independently of her husband. In Lord
v. Barclay it was decided that if the wife had reason to think the next
friend appointed by herself colluded with her husband, she might—
for that reason—have her next friend changed, on giving
security for the costs. A suit, instituted and carried on
by the husband and wife had been considered as the 'Mt of the husband
alone, and prima facie at least the wife could heat be said to have any
control or authority over it. She might authorise the husband to pro-
secute the suit, but in the absence of any thing to show she did so, the
suit must be considered as the suit of the husband. It had undoubtedly
been usual to file such bills, and many claims had been made with-
out objection in suits instituted by the husband and wife for the
wife's separate estate, the Court itself taking care the separate estate of
the wife recovered in such suit should be protected from the husband.
Lord Hardwick e had laid it down that when there was any thing to be
recovered for the separate use of the wife a bill ought to be filed
by the next friend for her, otherwise it was her husband's
bill. The husband having the power to use the wife's name might
file a bill without her knowledge, and prosecute it unfavourably to her
interests. It had been argued at the bar that the authorities did not
apply to a case where there was no dispute between the husband and
wife, but, after considering the cases, he (Lord Langdale) thought they
did not admit of that limitation. Not only ought the wife to be pro_
tected in the enjoyment of her separate property, but parties ought to
be protected against concurrent and consecutive demands of the bus.
band suing in the name of the wife, and the wife suing by her next
friend. If such suits were allowed, it was obvious great oppression might be
practised upon parties by the husband and wife acting in concert together.
His Lordship, after going through the authorities, said he had come to
the conclusion, though with reluctance, that lie ought is allow this de.
murrer. He said with reluctance, because he thought that suits thus
constituted, were of familiar occurrence, and he was aware that many
orders had been made in such suits, without inconvenience. He also
thought that in cases in which the husband and wife were not hostile
very little, if any additional security was obtained by the wife, in the
appointment of next friend, the probability being, that in such ease;,
the next friend was appointed by tle wife, on the recommendation of
the husband. His Lordship therefore allowed the demurrer without
costs, giving leave to amend the bill by striking out the name of Mr.
Wake, as pla.intilf, and as the next friend of the infant children; making
him a defendant, and by insertin; the name of the next friend for the
wife and infant children.

FER&RD V. LEPINE.

Mr. TINNRV then proceeded to address the Court on behalf of the
defendant in this case, which was opened yesterday, and the points in
which were wholly of a legal nature.