Genet v. Dusenbury.

v. Meadon, W. Bl. R. 904; Partridge v. Clarke, supra: Richardson v. Cowlan, 2 Marsh. 40; Jones v. Lewis, 7 Taunt. 55).

The principle of these decisions covers the merits of this motion, so far as it is to be treated as one addressed merely to the discretion of the court.

It appearing, in answer to the motion, that a fraud has been committed in procuring the credit, that the defendant is sued as the maker of a note, the court is not bound to interfere, as a matter of course, in a summary way, to give relief.

The Code has enacted nothing substantially new, by providing that in an action against a married woman, to charge her in personam, her husband shall also be a party defendant (Code, § 114; 2 R. S. 597, § 5; Morse v. Earle & Jackson, 13 Wend. 271).

The Code provides (§ 144), that the defendant may demur to the complaint, when it shall appear on the face thereof, that there is a defect of parties plaintiff or defendant; that if such matter does not appear on the face of the complaint, the objection may be taken by answer (§ 147); and that, if such objection be taken neither by demurrer nor answer, the defendant shall be deemed to have waived the same ( 148).

The published abstract of the decisions made by the Court of Appeals, in October, 1853, represents that court to have decided, in Hastings v. McKinley & Thomas, that "where an action concerning her separate property is commenced by a married woman in her own name only, if no objection on that account was taken, by answer or demurrer, such objection is waived."

If that rule is equally applicable to a fême covert defendant, then the mere objection of the non-joinder of the husband is waived, by omitting to take it by answer.

The only objection that would remain, relates to the merits of the action.

If, as is contended by the defendant's counsel, the judgment is void, she needs no aid from the court. In an action of trespass for taking her property, the plaintiffs cannot protect themselves by the judgment and execution issued thereon, if the judgment is void.

Genet v. Dusenbury.

If not void, but merely erroneous, and the error is one which entitles the defendant to have the judgment reversed, as a matter of strict legal right, then she will have a perfect remedy by appealing from the judgment.

The defendant's counsel supposes, that no appeal can be had from a judgment entered by default, and therefore insists that it is the duty of the court to relieve her upon motion. The case does not require the decision of the question, whether an appeal will lie in such a case. The only substantial question presented by this appeal, is simply this: Is such a defendant, on such a state of facts, entitled to relief, on motion, as a matter of strict legal right?

In addition to the cases cited, in which the court refused, under similar circumstances, to discharge a married woman from arrest, on filing common bail, Mores v. Richardson (8 Barn. and Cres. 421) is an authority for the position, that, after judgment by default against a married woman, and her arrest upon ca. sa., the court will not discharge her from custody, as a matter of course, on motion, notwithstanding the fact of her coverture may be incontestable.

In that case, which was decided in 1828, such a motion was denied, and she was left to her remedy by writ of error.

In Bignon v. Jones (15 Mes. and Wels. 566), after a judg ment had passed against husband and wife, and her body had been taken in execution, the court refused to discharge her from custody, for the reason that she did not swear that she had no separate estate. The reason of discharging a married woman from custody in such cases, is said to be, that her im prisonment will not be continued as a means of coercing payment, inasmuch as, in judgment of law, she is incapable of acquiring property.

But if she has dealt as a fême sole, and has obtained credit on the representation of her being a single woman, it is equitable that she should apply her property to pay debts which were contracted under such circumstances. As the justice of the plaintiffs' claim is not controverted, as the most they can effect with their execution is to reach sufficient of her separate property to pay the judgment, they will not acquire any inequitable advantage, and she will not be devrived of any

Bridges v. Miller.

equitable right, if the judgment and execution are allowed to stand. If, as her counsel seems to suppose, an appeal from the judgment will not lie, the only consequence will be, that the plaintiffs will obtain what in equity they are entitled to, if they have levied on sufficient property to satisfy the judgment.

We are of the opinion, that the defendant is not entitled to the relief sought, upon a summary application to the discretion of the court. There are no equitable considerations requiring its interference.

The order appealed from must be affirmed, with costs; and the defendant must be left to obtain such strictly legal relief as she may be entitled to, by such ordinary proceedings as she may be advised.

BRIDGES and others v. MILLER.

The words, "proceedings to compel the determination of claims to real estate," in § 308 of the Code, refer only to the special proceedings authorized by the revised statutes.

In an action to set aside a conveyance of real estate, an extra allowance can only be made when the case upon the trial appears to be "difficult or extraordinary," or "the prosecution or defence has been unreasonably or unfairly conducted."

(November Special Term, 1853. Before OAKLEY, Ch. J.)

THE complaint was filed to set aside a conveyance of real estate, in the city of New York, upon the grounds of the incompetency of the grantor, and the exercise of undue influence. Upon the coming in of the answer, issues were directed, which were found by the jury in favor of the defendant. Subsequently, at a special term, a new trial was refused, and the complaint finally dismissed. The defendant now moved for an allowance under § 308 of the Code.

OAKLEY, CH. J.-As it does not appear that the judge who tried the issues, deemed the case to be "difficult or extraordinary," and there is no evidence that the prosecution of the suit has been "unreasonably or unfairly conducted," I am satisfied,

Crocker v. Claughly.

that I have no power to make any additional allowance. It is a mistake to suppose that this action is a proceeding to compel the determination of a claim to real property, within the meaning of the Code. The proceedings to which alone § 308 refers, are those specially authorized by the revised statutes (2 R. S. or p. 312), and the provisions in relation to which, although modified in form, the Code, by an express provision, has retained in force (§ 449). The motion is denied without costs. Approved on consultation.

CROCKER and another v. CLAUGHLY.

The defendant in an action, will be allowed to set off a judgment in his favor for costs, against a judgment upon a verdict, in favor of the plaintiffs, when the latter are shown to be insolvent, notwithstanding they had previously assigned the verdict to their attorney.

(November Special Term, 1853. Before the Chief Justice.)

THE plaintiffs, in an action for the recovery of money, only obtained a verdict for $35, which they immediately assigned to their attorney. Judgment was subsequently entered and perfected, and was, that the plaintiffs should recover the $35, and the defendant his costs, amounting to $65.56. The defendant, upon an affidavit of the facts, and of the insolvency of the plaintiffs, moved that the judgment of the plaintiffs should be satisfied by a set-off of an equal amount of the costs which he had recovered.

The Chief Justice, without passing upon other questions which were raised, held that the insolvency of the plaintiffs was not only a sufficient, but a conclusive reason for granting the motion.

Approved on consultation.

Hubbard v. Guild.

HUBBARD & WILLIS V. GUILD.

When judgment creditors have acquired a lien upon a fund in the hands of a receiver, the court will not, upon their petition, make an order upon the receiver to satisfy the judgment out of the moneys in his hands, until a decree has been made in the action in which the receiver was appointed, and notice has been given to all other creditors interested in the distribution of the fund. But in order to protect the petitioners, an order will be made upon the receiver, forbidding him to make any payments out of the fund without notice to the petitioners, or their attorney, and allowing the petitioners to institute such an action against the receiver and other parties, as they may be advised. (General Term, December, 1853.)

APPEAL from an order at special term. All the material facts are stated in the opinion of the court.

Evarts, for plaintiffs and appellants.

Dodge, for petitioners.

BY THE COURT. HOFFMAN, J.-This is an appeal from an order made at the special term, declaring that the petitioners, George Gardiner and Joseph P. Gardiner, had acquired a lien for the payment of the judgment stated therein, upon the fund in the hands of the receiver, before his appointment; that such fund came into his hands subject to such lien, and that the receiver satisfy such judgment with interest, out of the assets received, and to be received by him, before payment of any other claims.

In order to understand the grounds of the decision we have made of this case, it will only be necessary to state the following facts-On the 22d of January, 1852, the petitioners, G. & J. P. Gardiner, named in the order, brought their action in the supreme court of this state, against the two plaintiffs in this suit, Walworth & Nason, with the defendant, Guild, comprising the firm of Walworth, Nason & Guild, and doing business in New York. A judgment appears to have been regularly ob