The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-04-12
Supreme Court-Special Term.


INTERESTING DECISION on MARRIED woMEN's RIGHTS
April H. = Mary A. c. Rtstr and her Husband
ogain Peter Morris and ohers-The def endants insist
BY demurrer, that although Mrs. Rusher has right,
Er- Rusher has none to sue a bond and mortgage
given TO her aonesince the act of 1885, that husbands
have longer any interest in the actions of their
wives and that wives for the future respect their
own property, TO be treated precisely as it, in the
ianguage Of the day. they We're single females Mar
and mort cages is it is true her sole and separate
estate and not subiect any ongc to the disposal of
her husband, liable Tor his debts" The new law,
dispensing with the usual special conveyancing in each
particular case has made general marriage settlement
for AL But has 1t gone far as in eectin matters Of
propertyto establish entire separation between
and wife, and has it made il unlawful to join him with
she in all such cases, whether she desires it not
choose person to he her next friend " in his stead
The new code Of procedure, and the new married
ronans rights act both in of preparation
at the time and in the legislature, but by
different and Independent hands and acting in concert
And therefore, although necessary certainly is it
may be difficult to harmonic their provisions For the
fact that the date of the final passage Of the code
April IL Is4s-s Eve DAYS later than that of the other
statute, furnish ground under the circumstances
for nferrg intention TO repeal any Of the provisions
OF the latter Now the code, treating of civil actions,
lays down this broad general rule that when married
woman il party. her husband must be Joined with
her''-thus recognizing both his duties and his rights
Certain exceptions however, of obvious necessity pro
priety, annexed to the rule namely, divorce and
tons concerning her separate property In the former
ssmav sue alone In the former as ber husband he
being against her, 'cannot be joined with her. she
must sue-by her next friend'-in the latter, he not
only may but smust be Joined, unless she elects,
she may to sue alone" Code, section ia. There is
nothing illegal therefore in the husbands becoming
co-plaintih in this suit But the wife had
doubted rght-which at times may be Of great impor-
lance to the boter protection of her ntereststo
without b II Is the duty of the Court to guard her in
its exercise And the question is how is that to be
done9 How is she to be guarded against the possible
consequences of suits brought perhaps without her
knowledge consent, in the joint OF both,
but really under the separate control Of the husband
sloneS When wife joins with husband in a convey
Of real estate the law provides the proof of exemp
ton from undue marital control that she shall make
acknowledgment before the proper officer that she does
legal evidence Of the validity OF the deed diff
hcul In the absence of positive rule in introducing
Similar practice In these Indeed it is but follow
ing well established course abolished OF the late
Court OF Cbanccry And the principle also In effect
cogned by the amendment In 1S49 the married
womans act which places trust property under the
direct control OF the wife, and annus the trustees all
Of certificate duly obtained, of Justice of the
Supreme Court that he has examined and made due in
qury into the situation capacity, &C. of the married
woman and is satisfied with the result The sole ground
on Which the defendants place their demurrer the al
legged defect Of partes whereas according 10 the ar
gument presented at the hearing the real objection 70
complaint is supposed excess Of parties Of them,
the husband having Is contended, interest in the
of action The oral argument IL will then be SEEN
overruie the written demurrer. But there Is in fact
neither excess DEFECT Husbands, Notwithstanding
the act Of 1s4s have interest against strangers
In enforcing the rights Of their wives. Although
deprived of the power Of disposal" they are
not exonerated or deprived Of the duty and the
right az their wives instance of protecting their
wives property. The complaint in the present case
Irsys Il true that the mortgage money when received
may be paid TO both. But the Court Ia authorized to
adapt its relief not TO that merely which asked for but
to that which Is Just and SHOULD the wife not make the
required acknowledgement of her wishes the subject
the Court decree the payment to be to her separately
or TO her sole and separate use AT all events not
disposed to adopt either consequence OF the code
~ the act for the better protection OF their rights the
barsh proposition that married women must be turned
out o. court, merely because they in In
VIII Their husbands Whether the married woman Is
rnner restraint or not may be inquired into She may
NC examined as 70 her wishes separate and apart from
her nusband She may he so examined Mt her own in
Stance or Of the instance Of the defendant, on the
mere motion OF the Court itself And H. upon inquiry
1T should appear that the was instituted against her
wishes discontinuance could be compelled But II she
Chooses az IN most cases she well may to associate her
Husband with her in the prosecution OF her rights she
Goes but exercise right which II possessed before
the law OF lS48 and the code itself have given her The
demurrer Therefore must be overruled and
foreclosure and sale entered, with costs and an allow