The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-11

HABEAS CORPUS.
MARCH Tn the Matter Of Petition for Ha5eas Corpss
direcfing Captain Elisha Peck produce james Bvoca-
Mr. B. r Dunning Associate United States District At
his return TO the habeas corpus that Brown was detan
ed by virtue Of enlistment in the service for the period
Of five years which was yet unexPred Brown denied
rested as deserer, named James Lee and taken and
detained on board the Columbia as SUCH when in fact
he never had enlisted and belonged the service
Mr. Cunning produced the record OF n court martial
held ON board the North Carolina In October last by
which appeared that the reator had been tried under
the name Of Brown alias Lee for having attempted to
desert and was convicted of that offence. The reator
himself WAS sworn in his behalf, and testified that
he never had enlisted that his James Brown
and that he had by mistake been arrested
This was the only evidence that produced the
cruitng officer being absent service and the descrp
ton list being ON board the Columbia service at
sea- The Judge held that there considerable doubts
of the identity Of the relaor and ordered him to DO dis
charged.
THE RIGHTS OF HUSBANDS AND MARRIED WOMEN.
Charles Benedict and Wuers William N. Seymour and
PdTtition-This presents several difficulties
arising mainly out Of the altered state Of the law in
ation to husband and wife; and sale Is asked for,
instead of actual partition Of the undivided interest
Of the parties and the rights Of infants well Of
suggest themselves to the mind Of the Court demand the
more careful consideration The counsel for the plain
tins seems to take for granted in the draft decree
men are still subject to their ancient disabilities and
married men entitled to their ancient prerogaves In
both aspects this assumption IL By the act
OF April 49, 184 for the better securing of the interests
OF married women in lands sold under DEGREES in part
ton It was provided that unless they chose to execute
IN such should be valued and corresponding
ton Of the proceeds invested or paid over as the
the rights and interests of the parties Under this
act the ordinary practice formerly, when release
rou,e not be Obtained from the wife was to pay the
1S48 and 40 however, for the better protection Of the
rights Of married women, such persons were in effect
declared in respect of property and its management to
stand precisely upon the same footing 'single fe
males and with the power of disposal sas If thy
10 hem be any longer psd nto oour %hy in otsr.
words, should the Chamberlain of the city, without
their request be made their trusteef Money paid to
married woman is not formerly her husbands proper
ty, nor subject to her husbands ssdsposal abe
for his debts" His legal control it is goneani
to undue influence, Of the present day Is
sumed to be deficient in strength Of mind to need
protection against the persuasive potency OF any hns
band The law regards her capacity to resist as In no
she No. quite freely and quite energecal
after marriage, while she was only "a single female.
some slight misgiving, and provides that where ex
press trust has been created for married woman, it
shall not be discharged even con her written re-
quest" unless Justice of the Supreme Court after
such request with his certificate to the eect-for
expressed the intention of the act-that he is salts
fed with ''the capacity of the lady 'sto manage and
particular trusts and bearing the present only
Is source of analogy is In great degree neutralzed
by the spirit of subsequent statute passed the aoth
OF june 1851 which gives to all married women who are
stockholders members Of any corporation the absolute
right tO vote at any election for directors trustees
and this without counselng either their husbands
and unequvoca Legislative Indications it would to
be the duty Of Judiciary to the former
law presumption and to unless the contrary be
expressly proved that every married woman Of full age
is as competent to manage and CONTROL as any man or
curtssy Of the husband By the common on law every
husband in right Of his wife, Immediately the mar
rage, except Where settlement was agreed upon be-
came seized of his wes houses and lands during their
joint lives and W issue foowed) during his own life The
act Of 49, while 1t left to the married her
law right of dover in her husbands property it would
SEEM took from the husband Intentionally otherwise
his common Inv right of curtesy in that Of his wife,
As marriage whatever may BIO it's other attributes In
gislature SO far as operates existing marriages and
existing property mpairs the obligation Of contracts
Vs. White; Barb, 474) As to subsequent mar.
riages, however, and as to subsequently acquired
unas sS q M M
Hence the necessity in all involving the claim of
tenancy by the curtey of stating the dates when the
property sought be partitioned acquredwithout
these elements it Is impossible for the Court to deter
parties. And when these elements are sup
Piled, Il they show . constitutional right in the
DURATION and Of course its value, s depends on the
With ISSUE the estate Is for the husbands own life With
Out issue, c1nnot ueyohu nlS WIGS us
therefore, depends not only upon the principle appcs
to life annuties and suryorships but the fact OF
ISSUE and If nome upon the likelihood OF ISSUE In this
aspect it differs materially from the inchoate dover
the wife, The widowcr, after his wifss DEATH takes only
the condition Of paternty-he widow, after her hus
bands, whether she has been mother not. The
greater less likelihood Of ISSUE in any given must
depend again it is obvious, not only upon the principles
applicable to life and survvorship but upon facts and
circumstances not usually taken into consideration by the
law One extreme case, it is true has been admitted,
and that only under the system abolished Of entail
~
recognized head Of the ancient jurisprudence.
Short of impossibty there that am aware
Of How then in other cases. is nchoate tenancy by
the curtesy to be valueds In other words what in
gross substitute for the probable prospective ncoe
to be allowedS On this and other points suggested
wish to hear the counsel for the parties before adopting
the draft DEGREES which have been submitted in this and
some other
Judgment suspended accordingly.