Hay v. Warren

The demurrer in this case is well taken ; as this court has ho jurisdiction or power to call the defendants to account for the property of Hay, upon a bill filed by his wife, to which he is not a party. In the case of Haviland v. Bloom and Myers, (6 John. Ch. Rep. 178,) the wife had obtained a decree of divorce a mensa, et thoro, and a decree that she should hold and enjoy her paternal inheritance for the support of herself and her children. The suit instituted against the defendants in that case by the wife, by her next friend, was therefore a suit to protect her own separate property, which had been made so by the decree against her husband ; as to which property she had a right to bring a suit in her own name, without the consent of her husband.

There is not sufficient stated in this bill to enable me to form an opinion whether the committee were absolutely discharged from their trust, and the lunatic so far restored to his former rights over the property as to make the accounting before the master final and conclusive ; and to divest the equity court of all further jurisdiction over the person or estate of the lunatic without the necessity of ta*613king out a new commission where he now resides. It is sufficient to dispose of the question now before me, to say that this bill is defective both in form and substance. Although it is not stated as one of the grounds of demurrer that the bill is filed by a feme covert in her own name, that objection might have been urged ore tenus, if the bill was not otherwise defective in being filed by one who is not authorized to call the defendants to account by bill, in any form, to which her husband is not a party.

The demurrer must therefore be allowed, and the bill dismissed.