In a suit by a married woman, a prochien amy is necessary not only to secure the costs, but, when her husband is a defendant, to interpose a suitable adviser; and this rule is not dispensed with, even where the wife sues in forma pauperis.
The prayer of the bill was to have an account taken of the estate under the settlement, and that the present trustee might be removed and another appointed, and that the trust fund be secured. The defendant Williams demurred, and for cause of demurrer, among others, especially assigned this, that the plaintiff is a feme covert, and has no right to sue alone.
On the last circuit, at Onslow, DONNELL, J., overruled the demurrer, and the plaintiff, under leave of the court, appealed.
DANIEL, J., after stating the material facts:
A feme covert having a separate estate, may, in a court of equity, be sued as a feme sole, and be proceeded against without her husband, for in respect of her separate estate she is looked upon as a feme sole. In Dubois v. Hole, 2 Ver., 614, Mr. Raithby, the annotator, has collected and digested all the authorities on this question. In a court of equity baron and feme are considered as two distinct persons, and, therefore, a wife, by her prochein amy, may sue her own husband.
The question to be settled on this demurrer is, Can she sue alone, in forma pauperis? The courts of equity, as well as the courts of law, permit persons to sue in forma pauperis when proper affidavits are made. 2 Mad. Ch., 256. But I can find no case where a wife has been permitted to sue her husband in that character. I cannot find any case where the wife has been permitted to sue alone in a court of equity. Where the husband is made a party defendant, the invariable practice is for the feme covert to sue by her prochein amy. The rule is established, I expect, not only to secure costs, but to have a responsible person who would be liable if the process of the court should be abused, and also that a proper and fit adviser might interpose to prevent domestic feuds, and at the same time protect the feme from the frauds and power of the husband. 3 P. Wms., 39.
The plaintiff asks leave to amend her bill by adding a prochein amy. This is an appeal under the late act of Assembly, from an interlocutory decree. This Court has no power to make any order or decree in the cause except on the point appealed from. We are of opinion that the court below erred in overruling the demurrer. It should have been sustained.
PER CURIAM. Decree overruled.
(555)