The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-12-13
SUPREME CoUaT-spscIAL TERM.
The Appleton Divorce Snit-Tho Next Fricnt
Of n Lunatic May Conduct n Suit in Hi
Name-Important Ruling.
Ind

The Appleton Divorce Suit-The Next Friend
Of Lunatic May Conduct Suit in HIS
Name-Important Ruling.
Before Judge Cardozo.
Samuel r. Appleton vS Amelia Warner other
scfse Kno,on as Amelia Appleton.-Tns well-known
divorce suit begun SIX years ago. came to the surface
again in this Court yesterday. The defendant, It
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 on april 20 OF the same year obtained
decree Of divorce. Previous TO this time, however,
as the friends OF the plainuf allege that, is on
March 49, 1s89-she was married to-the 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 T. Brady made nearly his last argument IN
the case. Inc matter came up on two motions-
one by the defendants to strike out the complaint
as not being authorized by the plain,in, and the
other by Daniel ). Appleton, brother Of the plain
ii to be appointed his next friend to conduct the
suit. Tue following contains all the material
pointS VI
THE JUDGES OPINION.
or course II the plaintiff were sane, the motion
to strike from the files would necessarily fan, and
the real question presented to me Is what should
be done upon the substantially conceded TACT that
the pialntln was. when the suit was instituted and
still CONTINUES TO be, insane. The question mas
given me more tr0uDlc Luan almost any tlat mas
ever been presented 10 me, principally because OF
the doubt that entertained as to the prOpricty OF
allowing any one but the plaintiff himself to elect
on o matter which seems so personal to him and TO
concern his Individual happiness, whether his mar.
riage should pc declared void or not This obJec.
ton was strenu0usiy urged by the defendants
counsel, and l ielt the point to be- one OF
great dclicacy and importance, and the researches
OF the learned counsel on either side fail
to supply me with any case bearing on that view.
Within the last lew days, however, 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 the ground OF
the adultery Of the wife. The bill was filed on the
part OF the husband, who was lunatic, by his
init ee. 1t was, among other things, argued that
the Court would not entertain o complaint OF this
nature which depends so much on the acts and dis.
positions OF the husband IN suit instituted by any
other persona but Sir VIM. Scott allowed 1t to he
prosecu ell IN the name OF the committee and cited the
case Of Fust VS.. Bowman, suit to cancel marriage.
As precedent he said, Ii any other rule applied
the vile OF unatc would have free license to COM
NIT 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 q
similar course was taken. Is made IN BOwden
Bowde1, Seval u FIRST, All 1t follows from these
cases That the Court Will permit the action to be
prosecuted on behalf OF the lunatic BY some one
representing him, although 1t is case in which it
seems that he has 10 make an election, and that
being SO the motlon 60 appoint next friend should
be granted, the cause 10 proceed In the OF the
lnnatic by Ills next friend, and upon that beng
done the motion to strike IRON the files should be
denied. Ordered accordingly.