Ferguson v. Smith

2 Johns. Ch. 138 | New York Court of Chancery | 1816

The Chancellor.

The general rule is, that the service of a subpoena against husband and wife on the husband alone, is a good service on both, and the reason is, that the husband and wife are one person in law, and the husband is bound to answer for both. ( Wyatt’s Pr. Reg. 402, 403. Gilbert’s For. Rom. 41, 42. 1 Harris. Ch. Practice, 207.) But where the plaintiff is seeking relief out of the separate estate of the wife, it has been deemed necessary, in a late case, (9 Vesey, 488.) that the wife should be served. Here *the right of redemption is exclusively in the wife, and her husband has absconded; she asks only for an opportunity to redeem, and I think it ought to be granted. If she had alleged any defence, I should have been also inclined to have granted her leave to put in a separate answer, but she admits the demand, and only asks for leave to redeem the mortgage.

The motion is granted, on her bringing into Court, in four weeks, the debt and interest, together with the costs accrued prior to the decretal order of sale.

Motion granted.