8 Wend. 357 | Court for the Trial of Impeachments and Correction of Errors | 1831
The following opinions were delivered:
Two questions are presented: 1. Could the plaintiff file a bill for a divorce, a mensa et thoro, in her own name, without a next friend ? 2. Could the plaintiff be required to give security for costs ? In relation to the first question, two points seemed to be conceded: 1. That before our statute, a married woman could not prosecute her husband except by prochein ami, or next friend; and 2. That since the statute, suits have uniformly been brought in such cases by the married woman alone, without a next friend. At the common law, a feme covert could not prosecute as plaintiff without her husband or a next friend, and when the next friend brought the suit, he was liable for costs, like the next friend of an infant. The only difference between the case of an infant and feme covert was this; The next friend brought the suit in both cases; when brought for a feme covert, it must be with her consent; when for an infant no such consent was necessary. When the statute authorized the wife to file a bill
This suit was brought under the revised statutes of 1830, and it becomes necessary to inquire whether they have altered the practice, or the rights of the parties. By them it is provided, 2 R. S. 144, § 39, as. follows: “ A bill for a divorce may be exhibited by a wife in her own name, as well as by a husband.” This section is under the article which treats of divorces dissolving the marriage contract. Under the next article, which treats of separations or limited divorces, is found the following section, 2 R. S. 146, § 50: “A separation from bed and board forever, or for a limited time, may be decreed by the court of chancery, on the complaint of a married wo
It is contended that the difference in the phaseology between the 39th and 50th sections, has materially changed the rights of the parties and the practice of the court. Is this so ? The 39th section declares that a feme covert may exhibit a bill in her own name. Suppose the words in her own name, had been omitted, in whose name must the bill have been exhibited ? Must she have had a next friend ? That cannot be contended. It will be recollected that the old statutes authorized the wife to exhibit her bill; and under those statutes she did exhibit her bill in her own name, and could not have done so in any other name. The words, in her own name, do not alter the rights of the wife, or the practice of the court; they are mere surplusage. The 50th and 52d sections give the same right. A separation may be decreed “ on the complaint of a married womanand how is she to make complaint l The 52d section answers that question. The bill of the complainant shall specify the nature and circumstances of the complaint on which she relies. Here the wife is the actor; she is to present her bill, and she is to state the causes of complaint on which she relies. There is nothing here forbidding the wife to sue, but expressly authorizing it. Nothing is said about a next friend. When a next friend sues, he is the party ; he complains ; the wife is passive; but not so here. From the very terms of this section the plaintiff must be a female. It is also worthy of note, that in cases of infants, idiots and lunatics, when a next friend must sue, the statute expressly gives the action to the next friend. 2 R. S. 142, 3, § 24, 5, 6, 21. The 21st section is as follows: “ A bill to annul a marriage, on the ground that one of the parties was under the age of legal consent, may be brought by the parent or guardian entitled to the custody of such minor, or by the next friend of such minor.” So any relative of an idiot or lunatic may prosecute for them. Under the old statutes, no one doubted the
The second question, as to security for costs, must also be determined upon the construction of the statutes. The acts of 1787 and 1801 are silent as to costs. The act of 1813 contains two provisions on the subject. The 12th section provides, that in suits for divorce, a mensa et thorn, the defendant might require security for costs, before he should be compelled to answer; and the 14th section 'gave power to the court to decree costs to either party in any suit under that act, which included suits for divorce, on the ground of adultery. That section has been incorporated into the revised statutes, 2 R. S. 148. § 58: “ In every suit brought, either for a divorce, or for a separation, the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit during its pendency; and it may decree costs against either party, &c. But the 12th section of the act of 1813 is not re-enacted, and the act itself is repealed. 3 R. S. 134, No. 138. If there could be any doubt on this fact of repeal, it is removed by the note of the revisors to the 5th article, which states that section 12 is omitted as repugnant in principle to the established practice of the court, recognized in section 60. They must have intended sections 58 and 59; but it is clear section 12 of the laws of 1813 was intentionally omitted, as improper in itself. The result is, that a married woman is entitled to file her bill for a separation ; the defendant has no more right, under the present statutes, to require security for cdsts, thanif the bill prayed for a dissolution of the marriage contract for adultery; but upon a final disposition of the case, the chancellor may decree costs against either party. The rights of the parties now are the same, whethter the suit is brought for an absolute or a qualified divorce,
In my opinion, therefore, according to the revised statutes, the ■ defendant had no right to ask security for costs; and the chancellor had no power to grant any such rule. Upon the two questions stated, I am of opinion, 1. That the bill must be filed by the feme covert in her own name ; and 2. That she cannot be called,upon to give security for costs, before answer, ■as under the old statute ; but the chancellor may make such-decree as to costs as seems proper, against either party.
Thus far I have examined this case upon the statutes. I am aware that the 163 rule of the court of chancery requires that the suit shall be prosecuted by a responsible person, as next friend of the complainant, who shall be responsible to the defendant for such costs as may be awarded by the court, if it shall appear that the suit was commenced without any reasonable or justifiable cause. “ The chancellor shall have power from time to time, by general rules of court, to establish, modify, alter and amend the practice of the court of chancery, in the cases not provided for by any statute.” 2 R. S. 175, § 46. If the rule in question shall be found to conflict with the statute, the rule must give away. If I have been correct in my construction of the statute, the plaintiff not only had a right, but was bound to file her bill in her own name, and could do it in no other ; the rule requires it to be done in the name of a third person, and so far must be considered inoperative and void. The statute makes no provision for security
In my opinion, the rule is in conflict with the statute, and is therefore void. The decree of his honor, the chancellor, should be reversed.
This case involves a question rather of practice than principle, and although not touching the merits, is still of some importance. The chancellor has decided, and so is his 163d rule in express terms, that a feme covert must file her bill by a competent prochein ami, under the 4th art. of ch. 8, 2 R. S. 146, when she sues for a divorce from bed and board on the ground of ill usage. It it contended by the appellant that she may institute such suit in her own name without a next friend. The rule is universal, unless an exception is made by the statute, that she must commence her suit by bill, in the name of a next friend ; and if the objection appears on the face of the bill, as it does here, the defendant may demur. Mitford, 135. Cooper, 163. ' The principal question, then, is whether the statute allowing the remedy for the injury above stated has changed, or intended to change the general practice of the court ?
The third article of this chapter provides for a divorce for the cause of adultery, and the 39th section in that article in
If the language of the statute were doubtful, I think the construction of the chancellor is founded upon the soundest view of the act, and of the relation existing between the parties, without injuriously affecting the rights of the wife. ■ Applications for divorces on the ground of ill usage are not to be encouraged, and the interposition of a next friend, who may be the adviser of the wife, and who shall be responsible for the costs, is not an unreasonable check upon such suits. If there be merits in the complaint, there is no woman so destitute but will find a competent friend to advise and protect her interests, and the tendency will be to restrain such suits from basing instituted under the impulse of passion, and without reasonable or probable grounds. From the nature of the offence, parties are "more liable to be influenced by sudden and temporary excitement than in the case of adultery. These reasons no doubt influenced in the adoption of the section in the old law, which requires the wife in every case of this kind to give security for costs. The court always had a discretion, and now have by statute, 2 R. S. 148, sec. 58, to compel the husband to advance any necessary sum of money to carry on the suit against him, which holds out to the wife and next friend entire security against expenses, if the proceeding be meritorious. In truth, it is only in a case wholly destitute of merits, when the next friend would assume any pecuniary responsibility.
I am therefore in favor of affirming the order of the chancellor, but without costs.
As it appeared from the pleadings that the bill was filed by the wife m her own name, I think the chancellor was right in anticipating the objection raised by the demurrer, and reversing the order at once, if that objection was well taken.
I see no propriety in compelling a husband to defray the expenses of a suit irregularly commenced against him, and which it is perfectly apparent cannot be sustained. Where unhappy dissensions exist between husband and wife, it is generally sufficiently onerous on his estate that he is compelled not only to support his wife and family separated from him, but to defray the expense of her litigation legally instituted against him. He ought not to be subjected to unnecessary expense, and it is the duty of the court so far to protect him. as to see that his substance is not exhausted in litigation that can arrive at no satisfactory result. If suits are irregularly commenced, the solicitor commencing them, and not the husband’s estate, should be held responsible for the expenses. It might be very gratifying to the cupidity of a captious solicitor, who should be more intent on making money out of family dissensions than bringing their difficulties to a speedy adjustment, to try experiments in practice, and subject the husband’s estate to all expenses of litigation, whether regular or irregular. I trust that no husband in this country, who
The question then is, was it regular for the wife to file the bill in her own name, without a next friend ? The decree of the chancellor, in reversing the order of the vice chancellor, is defended on two grounds : first, that according to the well established practice of the court of chancery, a wife must always prosecute by her next friend, where her suit is adverse to the rights of the husband ; and secondly, that this suit was commenced in direct violation of the chancellor’s 163d rule; It was admitted on the argument, that in ordinary proceedings in chancery the wife must prosecute her husband by next friend ; but it was contended that when a bill is filed by the wife for an absolute or limited divorce, the statute has removed her disability, and that she may prosecute in either of these cases in her own name. In regard to bills for an absolute divorce in case adultery, the statute does provide that “ a bill for a divorce may be exhibited by a wife in her own name as well as by her husband,” and in those cases the defendant may answer without oath. 2 It. S. 144, § 39. The 50th section, under which the present proceedings are instituted, enacts that “ a separation from bed and board forever, or for a limited time, may be decreed by the court of chancery, on the complaint of a married woman,” in certain cases and for certain causes enumerated in the statute. There is a marked difference between the language of the two sections. In one case she may file the hill in her own name, placing her upon an equality with her husband ; in the other, a separation may be decreed “ on the complaint of a married woman,” but the statute is silent as to the mode of preferring'such complaint. The legislature having used different language in the two sections, affords a reasonable presumption that it was not intended to put each case upon the same footing, .in regard to
I do not deem it necessary to the decision of this cause to decide upon the validity of the 163d rule of the court of chaneery, in requiring bills filed by married woman for absolute, as well as limited divorces, to be filed by their next friend, and in requiring security for' costs in all cases under the statute. Whenever a bill shall be dismissed solely for the want of security, or in the case of adultery, for the want of a next friend who shall be responsible, it will present the question whether the chancellor has transcended his powers in prescribing that rule, and then there will be a proper occasion to discuss and settle that question. In the present case the bill was filed for a limited divorce without a next friend, and in direct violation of the chancellor’s rule ; but independent of that rule, it was irregularly filed as against the settled law and practice of the court. All the books of practice concur in the principle that a feme covert, when she prosecutes in chancery in opposition to her husband, must prosecute by her next friend ; and the legislature, as I view the question, not having altered the practice in relation to bills for a limited divorce, I am for affirming ■ the order of his honor the chancellor.
On the question being put, Shall this decree be reversed l the members expressed their opinions as follows :
In the negative—Mr. Justice Nelson, and Senators Allen, Armstrong, Beardsley, Conklin, Deitz, Gere, Hubbard, Lynde, Mather, McLean, Tallmadgb, Throof and Todd —14.
Whereupon the decree of the chancellor was affirmed, but without costs.