The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-23

Ge6 toneln pf0veWenW Wc1o me0o -
.sealneEE -. esos.s e As6 900; ~
he s{sgsC NI1f t6Sfs vss due him $4,000; tie
referees 0nd Il v s. .Os4 a, besidss interest
Lastly, ~ rSierees do bot give him costs 1t
10 an equity case between partners, and the ac-
counting lWas 0ecoteary; it YVES right therefore
that each Shall pay half the reisrees' fees and
pay bis own costa As to the wess and tear ~
machinery, If the plaintiff Is liable for that be
might also be entitled TO the appreciation
in the value Of the real estate. That
other hand the fact that the machinery was
not kept by the repairs equal to what 1t
was in the beginning il not proved. As to
bad debts, there was no proof that there
were any such, and considering the healthy
state Of business from February, l847, to Au-
gust, l848 ii is not likely that there were
many in fact The referees had no proof that
any were bed, and so assumed that all were
good. II the Judgment therefore, Is affirmed,
except as to the costs, and with leave to the
defendant, notwithstanding the judgment to
move to open the reference on the question as
to bad debts and wear and tear Of machinery,
provided he can clearly satisfy the court, at
special term, that injustice has been done to
him in those matters to an amount exceeding
at least 81 1000, Justice may be thus done to
both parties, the defendant in such case lmme-
diately paying to the plaintiff ali the amount
of the modified judgment, except the sum as to
which the special term shall be satisfied he was
Injured.
INTERESTING DECISION ON DIVORCE SUIT.
Julia +. Thomas, By her nerf friend, against
Charles Th0mas.-MTCHELL,J. 1.-THE actlou-s
fer divorce on the ground Of adultery. The
plaintiff commenced her action by next friend,
and the defendant moved for and obtained an
order that the complaint be dismissed, unless
the next friend gave security for costs. The
| laintif appeals from that order. It was q
question under the code, as it formerly stood,
whether wife must not appear by her next
friend in all cases between her and her husband
This court at general term held that there was
a distinction between the case Of an action fer
an absolute divorce, and other actions between
husband and wife. That the revised statutes in
the FIRST case were in force, and allowed the
wife to sue in her own name; in the other cases
she must sue by her next friend, and that then,
in legal understanding, she sued alone; and
that where next friend was necessary the
court might require and when the old practice
was so, would require security for costs from the
next friend, or evidence of the responsibility of
the surety. This was understood in the case of
Colt We. Colt, although, as that was not case
for an absolute divorce all this was not special
ly mentioned in the opening in that case.
The amended code of 1852 required the hus.
band to be joined with the wife when she is
party, except in two cases.
lst. When the action concerns her separate
I'd. When the action is between her and her
husband. and in those two cases it says "she
may sue or be sued alone" 1t then enacts
that when her husband cannot be joined with
her as above provided, she shall prosecute or
defend by her next friend" The language Of
this last part has been criticised and it has
been said that it applies only to cases before
provided when the husband cannot be joined,
and that there are none such, although there are
two cases where he may not be Joined. The
same liberality must be allowed in constituting
the code as is allowed to any other act of the
Legislature. 1t is not to be construed as if
its authors could not err in grammar;
but the sense is to be sought for. al
though at the hazard Of an Interpretation
which would show that the most happy choice
Of language was not used diiquando bonus
doymifof Hormenis. If cannot is made and
read "may not" then this amendment requires
the wife to appear by next friend whenever
she may not by the section quoted (section l14)
cue alone: that is. whenever that section does
not authorize her to sue alone. She must then
appear by next friend whenever she sues her
husband-whether the action be for an absolute
divorce or for any other relief This section,
however, is fully satisfied If the wife does APP
pear by next friend. 1t is regulation of prac-
tice entirely the creature of the court and under
its control, whether q next friend shall give Sc
curity or not. When appointed for an infant
defendant, it is never required unless when the
statute makes it necessary when for an infant
plaintiff 1t would be required or not according
to the circumstances Of the case. The Revised
Statutes remain in full force as to divorces ex-
cept that now next friend is necessary for the
wife, whether plaintiff or defendant. The Sc,
(5s) section of r. s. 14S, is unaltered-it pro-
vides that in suit Sor divorce, the court may
require the husband to pay any sums necessary
to enable the wife to carry on the suit during
its tendency. 1t has become matter of course
to make this order unless the wife has means to
carry on the suit. The husband, then, is to pay
the costs in these cases primarily, whether he
succeed or fail-at the end, it is true the court
may deem the wife to pay the costs but this
never would be done unless there were great
misconduct in commencing or prosecuting the
suit. 1t can rarely happen, therefore, that the
wife or her next friend would be obliged to pay
costs and the only thing necessary to provide
against is such misconduct in the management
of the suit as would subject the wife or her
next friend to the payment Of costs. To accom-
plish this, it is not necessary to anticipate that
such misconduct will cccur-it is enough to
allow the wife to appear by any next friend
without security, and to allow him to continue
to act until some abuse occurs and then to re-
move him and dismiss the complaint. unless he
give security, or another next friend be substi-
tuted, when character and responsibility will be
protection against further abuse. But few
wives, except among the rich,) have separate
estates. A more stringent rule might exclude
all married women, except those rich in their
cwn right, from the benefit of the law, however
base and unprincipled their husbands might be.
Tie order appealed from should be modified ac-
cordingly, without costs
THONGS Word and W. L. Parker rs. Her.
egg-MrTcHELL J.-This motion comes on
upon an appeal from an order discharging an
attachment. The plaintiff, Parker, swore that
Eegg agreed that if the plaintiffs would sell
him goods en- credit and also guarantee his La
biIit. to another firm to the amount OF S1,302
IS, he would ship and consign to them all the
fish which he should become possessed Of in his
business in Nova Scotia as security for the
foo and tho o0ola In 10 sold To him. III AZ