Hull, by her next friend, agt. Smith and others. 7th. That this court has no jurisdiction of the cause of action set forth in the complaint against the defendant John Fallon. For demurrer, the counsel for the plaintiff submitted the following brief: The act of 1848, (see laws of 1848, p. 307, ch. 200,) was designed to give married women the exclusive control of their separate property. It authorizes them to hold to their "sole and separate use," as if single females, "all the property which they might thereafter receive by gift, grant, devise, or bequest." The second section provided, however, for property then held by "any female now (then) married," and provided that any such property, whether real or personal "shall (should) not be subject to the disposal of her husband, but shall be her sole and separate property as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted." (Vide White agt. White, 4 How. 102.) This, however, did not divest curtesy or any vested right. In 1849, (see Session Laws, p. 528,) the Legislature amended the 3d section of the act of 1848, but left the 2d section as it was. The third section relates exclusively to property to be acquired, and declares that she may "hold to her sole and separate use, and convey and devise real and personal property," in the same manner and with the like effect as if she were unmarried. The question is whether Mrs. Hull is, under either statute, entitled to sue for this judgment as her own personal estate? On the 30th July, 1833, she and her husband created a valid trust of her real estate, rents, issues and profits, in Pennsylvania, and vested the whole in Thomas Kelly, as their trustee. Mr. Kelly is dead. In May, 1846, Mrs. Hull executed an appointment and letter of attorney in favor of J. K. Bradbury, to the extent of $2,500. Under this execution of the power of appointment, Mr. Bradbury petitioned the Court of Common Pleas of the city of Philadelphia, for the appointment of a new trustee, and Mr. Fallen was appointed in the place and stead of the deceased Mr. Kelly. Hull, by her next friend, agt. Smith and others. And the ground to be suggested for the jurisdiction is, that it will prevent a multiplicity of suits. Mayor of Brooklyn &c. agt. Messerole, (26 Wen., 132.) A defendant in the Court of Chancery could not object that another defendant having no interest in the subject matter of the suit, is improperly made a party; Cheny agt. Monroe, (2d Barbour's Ch. Rep., 618, 619,) and that is still the rule under the Code. By section 118, under the Code, all the parties who claim an interest in the matter may be made defendants. (Section 119. See also Story's Eq. Pleadings, section 153.) ROOSEVELT, J.-The pleadings admit that Mrs. Hull, with her own separate funds, purchased all the claims and demands of E. H. and J. K. Bradbury, against the firm of Hull & Smith, and that the agreement was, that they should be assigned to her by a proper instrument in law to effect that purpose. The assignment was accordingly executed, and the consideration ($2,500) paid. There are some formal defects in the instrument-real or only apparent one is that the draftsman, not knowing that the demands were in judgment, described them as notes and bills; the other, that not being a very technical lawyer, instead of making the assignment to a trustee to hold for her, Mrs. Hull's separate use, he made it "to and for the use of her separate estate." A full and valuable consideration having been paid and accepted, she is entitled, if necessary, to have the instrument reformed, or which in effect is the same thing, it being a case of mere personal property, to have the instrument treated as if it were reformed and made conformable to the agreement. She now asks to have the benefit of her purchase; the action is in one view an action on the judgment. The obligation of the defendant, Smith, to pay that judgment, and to pay it to Mrs. Hull, is the cause of action, and there is no other cause of action. Other persons are made defendants, not to assert other causes of action, but for the protection of Smith against any technical claims founded on The Trustees of the village of Penn Yan agt. Forbe informalities which they might set up. He certainly has no right to complain that they are brought into court—had they been omitted some color would have existed for objection on his part, not indeed for excess, but for defect of parties. "Any person may be made a defendant who has, or claims. an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein." Code, section 118. Judgment must be entered declaring the rights of the plaintiff as above explained-enjoining the defendant, Bradbury, from intermeddling with the judgment entered on the assigned demands, and requiring the defendant Smith to pay the plaintiff for her sole and separate use, the amount of the said judgment and interest, and also the costs of this suit. NOTE. It is perhaps proper to state, that the assignment in question was executed by John K. Bradbury, the firm of the Bradburys being at the time dissolved, and he having acquired the sole and exclusive ownership of the claims against Smith and Hull. SUPREME COURT. THE TRUSTEES OF THE VILLAGE OF PENN YAN agt. FORBES. Where in an answer one of several statements of defence is stricken out by the special term as irrelevant-not being a bar to the action-and the defendant appeals to the general term; the plaintiff can not proceed and try the cause at the circuit upon the remaining issues of fact, pending the appeal. Ontario Special Term, May, 1853. The complaint in this action is for alleged violations of the provisions of title 9, chap. 20, part 1, of the Revised Statutes, entitled "of excise, and the regulation of taverns and groceries." The answer set up six different defences, or statements of defence. The second statement of defence was, on motion, stricken out as irrelevant, at the Special Term held in Monroe county on the first Monday of April last; on the next day after the order for striking out was entered, the plaintiffs noticed the The Trustees of the village of Penn Yan agt. Forbes. action for trial at the circuit to be held in the county of Yates, on the third Monday of April aforesaid; and on the same day of the service of such notice of trial, the defendant appealed to the general term from the order of the special term, striking out the second statement of defence. At the Yates circuit held on the third Monday of April, as aforesaid, the plaintiffs tried the action and obtained a verdict for $125, no one appearing on the part of the defendant. The appeal is still depending, no general term having been held at which it could be heard. A motion is made on behalf of the defendant to set aside the verdict and all subsequent proceedings for irregularity. J. S. GLOVER, for Defendant. D. B. PROSSER, for Plaintiffs. WELLES, J.-I am entirely satisfied that the plaintiffs were irregular in going to trial while the appeal in question was pending and undetermined. The order was clearly appealable. It involved the question whether certain matters, put forth by the defendant in the form of an answer to the complaint, was a good bar to the action. The special term held them irrelevant, and struck them out as such. It was the right of the defendant to have the judgment of the general term on this question, before going to trial upon the other issues of fact made by the answer. I am asked to look into the pleadings to see that the matters stricken out are entirely immaterial, and do not involve the merits of the action. I cannot perceive that my judgment upon the merits of the answer stricken out is of any consequence. Suppose I should agree with the special term that the matter was irrelevant, and tendered a totally immaterial issue? It would then be only the concurrence of two special terms in the same judgment. The right of the defendant to the judgment of the general term would still remain. This is not the case of an issue of law and an issue of fact in the same action, where, under the former practice, the plaintiff had his election which to try first; (Gr. Pr. 2d ed. 760,) and where, under the Code, the issue of law must be first tried, unless the court otherwise order. (Code, § 251.) It is The Trustees of the village of Penn Yan agt. Forbes. more like the case of several pleas to the declaration, one of which forms an issue, and upon others no issue is yet joined, either of law or fact. No practice that I have ever been acquainted with, would allow the plaintiff to go to trial in the case mentioned, upon the issue formed, while upon other pleas interposed the parties had not come to an issue of any kind. The policy was, that all the issues of fact should be tried by one jury; and until the parties had got through with their allegations, it could not be known whether the issues which remained to be joined, would be of fact or of law. If they should turn out to be issues of fact, another trial by jury would become necessary. The same rules should, I think, be applied to the practice in actions under the Code. In the present case, the plaintiffs have not raised an issue of law upon the answer in question, but have procured it to be stricken out upon a summary application. The appeal opens the question whether the answer shall stand, which question must remain open until the general term decides it. Suppose the order appealed from should be reversed, there would be then standing in the same action a verdict on a portion of the issues of fact, and the other portion yet to be tried. I think the motion of the defendant should be granted with ten dollars costs. Ordered accordingly. NOTE.-The above decision was affirmed, on appeal to the general term at Auburn, in June, 1853, and for the reasons stated in the foregoing opinion. |