REED, V. C.
Bill in chancery by Margaret J. Van Orden against John M. Van Orden. Defendant filed a general demurrer. Overruled.
Skinner & Ten Eyck, for complainant.
Henry Young, for defendant.
REED, V. C. This is a general demurrer to a bill for want of equity. The bill is filed to compel the payment of certain sums awarded to the complainant by a judgment in the state of New York in a suit between the parties to obtain a divorce a mensa. The complainant's marital relations with the defendant were not extinguished by the New York judgment. Therefore she is compelled to bring this suit in this court.
The first insistence of the counsel for the demurrant is that the judgment of the New York court orders that some of the sums mentioned therein be paid within 30 days after the service upon the defendant of a copy of the New York judgment; that the bill fails to state any service of the judgment at all upon the defendant. But it appears that other sums awarded were to be paid without any condition as to prior service of the judgment, and these sums afford support to the general equity of the bill. It is therefore unnecessary to determine whether the service of the judgment upon the defendant, under the circumstances developed by the bill, was essential to lay a foundation for the recovery of the remaining portions of the judgment.
It is secondly insisted that the wife could sue only through a next friend, and she has sued in her own name alone. But this point does not reach the general equity of the bill. It is a defect not pointed out by any written cause assigned by the demurrant. But, although this cause was not assigned in the demurrer on record, yet it was assigned ore tenus upon the hearing; and as the demurrer ore tenus goes to the whole bill, as did the written demurrer, and so covers the same ground, the defendant, under a well-settled rule of equity practice, had the right on the hearing to interpose the former demurrer. Stillwell v. McNeely, 2 N. J. Eq. 305; Barrett v. Doughty, 25 N. J. Eq. 379; Brinkerhoff v. Brown, 6 Johns. Ch. 139-149; 1 Daniell, Ch. PI. & Prac. 589. If the demurrer ore tenus should be allowed, it would be with leave to the complainant to amend by adding a proper and responsible person as next friend, and this would leave the costs upon the demurrant. Where the demurrer filed has been disallowed, although the demurrer ore tenus has been allowed, the general rule seems to have been that the demurrant pay the costs of the demurrer on record. Attorney General v. Brown, 1 Swanst.'288; Durdant v. Redman, 1 Vern. 78; Robinson v. Smith, 3 Paige, 222-233; Garlick v. Strong, Id. 440-52. This is undoubtedly for the purpose of discouraging the reservation of objections, which could have been taken in writing, until the hearing. The effect of this course is to delay the determination of the cause, because, if the objection had been put upon the record, the complainant might have concluded to at once amend, instead of awaiting a hearing upon the demurrer. Its effect is also to prevent proper preparation for argument of the demurrer. For these reasons, as Lord Cottenham said in Mortimer v. Fraser, 2 Mylne & C. 173, oral demurrers should not be encouraged.
But I am of the opinion that the oral demurrer is not well taken. Whether the suit, being one to recover an award for costs in a divorce suit, stands upon the same footing as a suit for divorce or for alimony, need not be considered. In my judgment, a married woman, by force of "An act to amend the law relating to the property of married women," approved March 27, 1874, has become so discovert that the old requirement that she could only sue in equity in conjunction with her husband, or under the protection of a next friend, is obsolete. The eleventh paragraph of that act (2 Gen. St. p. 2014) confers power upon her to maintain an action in her own name for all breaches of contract, etc., and provides that she shall have in her own name the same remedies for the recovery and protection of her property as if she were an unmarried woman. This paragraph and the preceding paragraph put the married woman in the posture of afeme sole whenever she can bring a suit at all. The act is substantially in line with the married woman's property act of 1882 (7 Chit. Eng. St.), and under the English act she sues, like a feme sole, without a next friend. 1 Daniell, Ch. Pl. & Prac. § 87, note a. In the case of Mary L. Taylor, by her next friend, Slater (Taylor v. Slater, 18 R. I. 797, 31 Atl. 165), the supreme court of Rhode Island held that inasmuch as by the local statutes married women could contract as if sole, and their property was subjected to the payment of their debts as if sole, there was no longer any necessity for them to sue by next friend. It further held that she, having been put by the statute on the footing of a single woman, is bound to sue as a single woman should; that is, directly, and not through a next friend. The bill was dismissed because not filed by the complainant in her own name. I have no personal knowledge of a judicial ruling in this court upon this point, and there seems to be none reported; but Mr. Dickinson states, in his notes to his Chancery Precedents (see page 3, note a), that since the statute it has been repeatedly held that a married woman may sue in her own name without the intervention of a next friend. And such, I think, has been the general, if not uniform, practice since 1874. The demurrers are overruled, with costs.