maintenance of the plaintiff; and that the plaintiff may have such further relief, &c., [as in No. 1.] Add the usual affidavit, see Rule 64. By widow against heir for dower, asking a discovery of the real estate and an account of the rents and profits. Title of the Cause. The abovenamed plaintiff complains against the abovenamed defendant, and alleges the following facts, constituting her cause of action: That on the day of, at she was duly married to J. B. W., and cohabited with him, as his lawful wife, up to the time of his death; that said J. B. W. died on the his widow, and the defendant his sole heir-at-law; that, at the time of his decease, the said J. B. W. was seized, in fee simple, of a certain farm of land, situate, &c., [describing it], and of divers other real estate, the quantity and situation of which is not accurately known to the plaintiff; and that upon, or soon after, the death of said J. B. W., the defendant, as heir-at-law, entered upon and took possession thereof, and of all the title deeds, evidences and writings relative thereto, and has ever since received the rents, issues and profits thereof. day of -, leaving the plaintiff And the said plaintiff further alleges, that she has frequently, by herself and otherwise, applied to the said defendant and requested him to discover the said freehold estates of which the said J. B. W. died seized, and his title thereto, and to account for and pay to the plaintiff one-third part of the rents and profits of such freehold, and to assign such one-third part to the plaintiff, and let her into the absolute possession thereof, but the said defendant refused and still refuses to comply with such requests or any part thereof. Wherefore the plaintiff demands judgment against the defendant, that he may be adjudged to discover and set forth a full description of such freehold estates, with all the circumstances and particulars thereof, and that an account may be taken, by and under the judgment of this court, of the rents and profits of such freehold estates, which have accrued since the death of said J. B. W., and have or might have been received by the defendant, and that one-third part thereof, arising from the said freehold estates, may be adjudged to be paid to her by said defendant, and that one-third part of said freehold estate may be assigned and set over to her by said defendant for her dower, and the said defendant may be ordered to produce all title deeds, evidences and writings relative to the said freehold estates, in order to effectuate the purposes aforesaid; or for such other, &c., [as in No. 1.] (No. 66.) To charge the separate property of a married woman for the payment of her debts. SUPREME COURT-COUNTY OF CHENANGO. Ransom Yale Eliza Ann Dederer and Nicholas A. Dederer. The complaint of the abovenamed plaintiff respectfully shows to this court, that the defendants, Eliza Ann Dederer, and Nicholas A. Dederer, her husband, at Greene, in the said county of Chenango, made their promissory note or agreement, with and to the plaintiff, of which the following is a copy: $998. On the first day of May next, we, or either of us, promise to pay Ransom Yale, or bearer, nine hundred and ninety-eight dollars, with interest, for value received. N. A DEDERER, ELIZA ANN DEDERER. Greene, Dec. 26th, 1853. That the consideration of the said note or agreement was for two promissory notes made by the defendant Eliza and said Nicholas A. Dederer to the plaintiff, and which notes were surrendered on the execution of the aforesaid note or agreement, the consideration of which said two promissory 1 A married woman, either suing alone, as to her separate property, or joined with her husband as plaintiff or defendant, may sue or be sued without next friend. (Code, § 114, amended by act of 1857, vol. 2, 552.) notes, so surrendered, was for cows sold in the spring of 1852 and of 1853, by plaintiff, to stock the farm of the makers of the said note,' and that the said defendant Eliza, at the time of making the first two, as well as the time of making the last of said notes, had, and still has, an estate separate from her husband, consisting of farms of land in said county of Chenango, and of personal estate, and that a large number of said cows were purchased for the use and benefit of the farm of the defendant, said Eliza, and were used for the benefit of the defendant on her said farm; and that said separate estate of said Eliza consists of a farm of about 200 acres, in German, called the Gould farm, and of a farm of about 215 acres, in Smithville, called the Warner farm, and also of a lot of land in Greene and Smithville, containing about 90 acres of land, called the McIntosh lot, and of personal property. That all of the aforesaid notes were made during the coverture of the defendant, said Eliza, with the said Nicholas A. Dederer. And plaintiff avers that the said defendant Eliza, by the execution of the note of which the above is a copy, as well as by the making of the notes aforesaid, intended to charge and did charge her separate estate with the payment of the notes aforesaid, and that by the surrender of the former notes by plaintiff, and the making the said note of which the above is a copy, the defendant, said Eliza, did In an action against husband and wife, to charge the separate estate of the wife, upon a note or bond, signed by the husband and wife, the legal inference is, that it was the debt of the husband. The legal conclusion is, that it could not be the debt of the wife, she being incompetent to contract it. In order to charge the separate estate of the wife, there must be something to show that it was given for her benefit; that is, for the use of her separate estate. (Goodall v. McAdam and wife, 14 How., 385; and see cases therein cited, and precedent of complaint.) charge her separate estate with the payment of the note of which the above is a copy. And the plaintiff further says, that although the said note became due and payable before the commencement of this action, yet the defendant, said Eliza, and the said Nicholas, or either of them, have not paid the same, and that the said plaintiff is now the lawful owner and holder of the said note, and there is justly due to him thereon the sum of $998, together with interest thereon from the 26th day of December, in the year 1853. That the defendant, said Eliza, refuses to pay the amount aforesaid to the said plaintiff, or to secure the same by mortgage, or otherwise, on her separate estate. The plaintiff therefore demands judgment that the separate estate of the said defendant Eliza be charged with the payment of the amount last aforesaid to the said plaintiffs, and that the payment of the amount last aforesaid be enforced as a lien upon the said separate estate, and that the personal estate of the said defendant Eliza, and the rents and profits of the real estate, be applied, by the order of this court, to the payment of the amount last aforesaid, together with the costs of this action, or that such direction as to the said court may seem just be made as to the application of the defendant's, said Eliza's, separate estate, in satisfaction of the amount due the plaintiff as aforesaid.1 HENRY R. MYGATT, Attorney for Plaintiff. 1 This appears to be the only mode of reaching the separate property of a married woman, and the foregoing is the proper form of complaint in such cases. (See Cobine v. St. John, 12 How., 333; Coon v. Brook, 21 Barb., 547.) In the foregoing case the plaintiff obtained judgment at special term, which was affirmed by the General Term on appeal. The opinion of the General Term will be found in the report of the case, Yale v. Dederer (21 Barb., 286). |