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Chapman and Crossett agt. Lemon and wife.

verture was removed, when the husband was exiled or had ab.. jured 'the realm. The wife thereby became capable of suing and being sued as a feme sole. (2 Kent's Com. 154.)

In this country it has been held, that where a husband absolutely deserts his wife, and renounces his marital rights and duties, and leaves the state, the wife may be regarded as a feme sole. In Abbot agt. Bayley, (6 Pick. 89,) it was held, that a residence in another state was equivalent to a residence in any foreign state. But before the wife can be treated as a feme sole, it must appear that the husband has voluntarily abandoned her, and, so far as he could do it, has renounced his marital relations. Such a renunciation, coupled with continued absence from the state, operates like an abjuration of the realm at common law. (Gregory agt. Pierce, 4 Metcalf, 478.)

The burden of proof would rest upon the party maintaining the right of the wife to act as feme sole. In this case the plaintiffs have not ventured to assume this burden, but have chosen to treat the wife as still under coverture, and seek to charge her separate estate with the payment of their debt. They allege, and have proved before the referee, that the debt was contracted by the wife, and that she agreed to pay it out of her separate estate. If this be so, though a judgment cannot be rendered against her in personam upon her contract, the court, in the exercise of equity jurisdiction, can charge the debt thus contracted as a lien upon the separate estate. (2 Kent's Com. 164; 2 Story's Eq. $$ 1399 to 1401; Gardner agt. Gardner, 22 Wend. 526.)

This I understand to be the effect of the judgment in this case, and the facts established before the referee warrant such a judgment. The judgment is, that the amount recovered by the plaintiffs be collected out of the separate property and estate of the defendant, Susan A. Lemon. The effect of this judgment is, to make the plaintiffs' debt a charge upon the separate property of the wife. It may be imperfect in not directing the mode of enforcing the lien; but this omission, though it may render some further application to the court

Chapman and Crosset agt. Lemon and wife.

necessary, does not render the judgment, so far as it goes, invalid or irregular.

But it is insisted that the reference was unauthorized, and, of course, that the judgment founded on the report of the referee, is also irregular. As against the defendant, George F. Lemon, this might be so. He was proceeded against by publication of the summons; and in such a case the third subdivision of the 246th section of the Code, makes it the duty of the court to require proof to be made of the demand mentioned in the complaint. No authority is given to order a reference. But the defendant, Susan A. Lemon, was proceeded against by a personal service of the summons and complaint; and in such a case the second subdivision of the section last mentioned expressly authorizes a reference. As against Mrs. Lemon, therefore, the reference was regular; and even if it was irregular, as against the husband, as I am inclined to think it was, it does not lie with her to take the objection. He was, at most, but a nominal party; and if he does not complain of the irregularity, it is not for the wife to take advantage of it.

But, though the judgment may be upheld, as, in effect, a decree in equity declaring the plaintiffs' demand a valid lien upon the separate property of the wife, the execution was irregularly issued. The plaintiffs’ attorney has entirely mistaken the mode of enforcing such a judgment as he has obtained. An execution can only be issued where the judgment requires the payment of money, or the delivery of specific real or personal property. Here the judgment only declares the plaintiffs' right to have their debt paid out of the separate estate of the wife. An execution can only be issued upon a judgment in personam. Here the judgment is in rem. It is against Mrs. Lemon's estate, and not against her personally. (See Code, $§ 285, 286.) ,

In this case, as the judgment does not contain directions for enforcing the lien which it declares, the plaintiffs, before they can proceed further, will find it necessary to apply for such directions. If the property chargeable by the terms of the judgment with the payment of the plaintiffs' debt is in the hands of a trustee, an order directing him to pay the amount of the

Porter agt. Pillsbury

judgment may be sufficient. If the property is in the hands of the wife herself, a receiver may be necessary. At any rate, the mode of proceeding is a question which must be referred to the judgment of the court. The execution clearly was unauthorized, and must be set aside.

No issue having been joined in the action, the plaintiffs could not be allowed a trial fee upon the taxation of their costs. The items for clerk's fees, on entering the special term order, were also improperly allowed. An order must be entered deducting $15.50 from the costs as taxed, and setting aside the execution as irregular. As the defendant has succeeded but partially in her motion, neither party is to have costs as against the other.

The defendant has sworn to merits. It is probable that the questions upon which she relies have been disposed of by this decision; but as she may have some other ground of defence, the order may provide that she be let in to answer upon the payment of $10 for the costs of opposing this motion, and $6.63 for the costs of the reference and entering judgment.

SUPREME COURT.

ADAM PORTER agt. Amos PILLSBURY.

An action against the superintendant of the Albany county penitentiary, person

ally, must be tried in that county, for the reason that he is a “public officer," within § 124 of the Code.

Dutchess Special Term, July, 1855.

HARRIS & COURTNEY for defendant.
Wm. BROWER, for plaintiff.

Porter agt. Pillsbury.

Dean, Justice. The defendant is the superintendant, or principal keeper, of the Albany county penitentiary. The plaintiff was, in 1854, by a commitment of a justice of the peace of the county of Dutchess, confined to the penitentiary of which the defendant had charge for the period of six months. During that time he was, by order of the defendant, subjected to the discipline of the prison. And the plaintiff, who, at the time of the commitment was, and now is, a resident of the county of Dutchess, brings his action for false imprisonment and assault and battery. The defendant is a resident of the county of Albany; and the complaint charges expressly, that all the illegal acts of the defendant were done in the county of Albany.

This motion is made to change the place of trial from Dutchess to Albany county. It cannot be granted on the ground of the convenience of witnesses-because, from the affidavits, and the nature of the issue to be tried, it is evident that but few witnesses will be needed on either side, and probably as many of those really necessary reside in Dutchess as in Albany county. .

But the motion must be granted on the ground that the defendant is a public officer. He has the charge of a public institution. The position that he holds is, in the act establishing the penitentiary laws of 1844, chapter 152, denominated an “office,” and the person who fills it is called an “officer.”

The defendant is, therefore, within the reason and language of $ 124 of the Code. (People agt. Hayes, 8 Howard, 248.)

The motion must be granted, with $10 costs to abide the event. Vol. XI.

16

Wells agt. Jewett, impleaded, &c.

SUPREME COURT.

Wells agt. Jewett impleaded with Mali, TIBBITS, Jones,

Stacy and CLARK.

In an action for false and fraudulent representations, the complaint must

state what the representations were, that the court may judge if they were sufficient to mislead; otherwise the plaintiff does not show a cause of action. It should also state that they were made with intent to deceive and defraud the plaintiff. In such an action, where one count in the complaint is against part only of sey

eral defendants—while other counts set up causes of action against all of the defendants, it is a misjoinder of actions, as the causes do not “affect all the

parties to the action.(Code, S 167.) Where the plaintiff, a stockholder of the company, prosecuted, in his own be

half, the directors and secretary of the company, alleging false and fraudulent representations, and fraudulent over-issue of stock of the company, and appropriating, by the defendants to their own use, the property of the company, whereby the plaintiff's stock was valueless, or nearly so, Held, that all the stockholders having a common interest, and affected in the

same proportionate degree, aceording to the quantity of stock each held, it was a case in which there should be but one recovery, and in which all of the same class should join, or the suit should have been prosecuted by the

plaintiff for the benefit of himself and the other stockholders. Also held, that the company was a necessary party to the action; because, if

he plaintiff' had no interest in the company, and was the holder only of spurious stock, which he had bought on a false representation as to the value of the stock, then his only remedy was for that wrong; and he had no right to inquire what the stock would have been worth if the affairs of the company had been properly managed. And if he was the holder of genuine stock, then the injury complained of was primarily to the company, and only incidentally to him, and the company should be a party

New-York Special Term, June, 1855.

The defendant, Jewett, demurs to the complaint. The complaint states, that the plaintiff is the holder of what purports to be one hundred shares of the Parker Vein Coal Company; that the whole number of shares of stock of the company was 30,000 of $100 each; that the property of the company consisted of lands and steamships, worth together three

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