The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-12-13
SUPREME cuURT--spscIAl Term.

The Appleton Divorce Subtitle Next Friend
Of a Lunatic May Conduct n Suit In HIS
Name-Importanr Ruling.
Before Judge Cardozo.
Samuel r. Appleton vs. Amelia Warner, Other
tcfse Krao,on as Amelia Appleton.-Ths well known
divorce suit begun years ago. came to the surface
again in this Court yesterday. The defendant, IL
will be remembered, was married In ls4l TO william
Warner. He left her, according to her story, went
to California ana there, as she supposed, died. In
1854 she instituted q divorce suit against him In
Indiana, and april 20 OF the same year Obtained
decree of divorce. Previous to this time, however,
as the friends OF the pIalnun allege that Is on
March 49, 1S69-she was married tolhe latter, ana
shortly afterwards the first husband turned up
alive. MI. Appleton became insane and his brothers
had him placed in an asylum and commenced
suit for divorce in his name. memorable feature
connected With the suit is the TACT that the late
James I. Brady made nearly his last argument IN
the case. me matter came up on two motons-
one by the defendants to strike out the complaint
as not being authorized by The plain,in, and tho
other by Daniel ). Appleton, brother OF the plain
if to be appointed his next friend to conduct the
suit. Tue following contains all the material
points VI
THE JUDGES OPINION.
OF course, II the plaintiff were sane, the motion
to strike from the files would necessarily fa and
the real question presented to me Is what should
be done upon the substantially conceded fact that
the plalntin was, when the suit was instituted and
Still CONTINUES TO be, insane. The question has
given me more trouble Than almost any that mas
ever been presented 10 me, principally because OF
the doubt that entertained as to the propricty OF
allowing any one but the plaintiT himself to elect
concern his Individual happiness, whether his mar.
riage should De declared void or not This obJec.
ton was strenuOusy urged Dy the Defendants
counsel, and l ielt the point to be- one OF
great dclcacy ana importance, and the researches
OF tine learned counsel on either side fail
to supply me with any case bearing on that view.
Within The last lew days, however, i have found
case in which the question was directly presented
and decided by Sir VIM. Scott In Parnell vs.. Par
nell q Haggerty's Condensed Reports, which was
q suit brought TO obtain divorce on the ground OF
the adultery Of the wife. The Dill was filed on the
part OF the husband, VINO was lunatc, by his COM
init ee. 1t was, among other things, argued that
the Court would not entertain complaint OF this
nature which depends so much on the acts and dis.
p0sltonS OF the husband In suit instituted by any
other persona but Sir VIM. Scott allowed 1t to be
prosecuted IN the name OF the committee cited the
case OF Fust VS.. Bowman, suit to cancel marriage.
the vile OF lunatlc would have free license to com.
init adultery, and that no injury could ensue from
allowing the suit to proceed because the unatlc II
he recover, may either condOne the offence stand
on what has been done Tor him. Reference to Ger.
tain case, Portsmouth VS.. Portsmouth, in which
similar course was taken, Is made in BOWden vs..
Boyde1, Seval u FIRST, All 1t follows from these
cases tnat the Court Will permit the action to be
prosecuted on behalf OF the lunatIc By some one
seems that he haS 10 make an election, and that
being SO the mouon 60 appoint next friend should
be granted, the cause 10 proceed In the name OF the
lunatc by Ills next friend. and upon that being
done the motion to strike from the files should be
denied. Ordered accordingly.