Wesson Hunting v. . Thomas J. Johnson

Dice, J.

In Sutton and wife v. Askew, at this term, this Court decides that the Statutes restoring to married women the common law right of dower, are unconstitutional, so far as they apply to marriages contracted previous to the passage of those statutes.

As the j-eme defendant was married, before the enactment of those statutes, she had no interest in the lands conveyed to the plaintiffs.

The suggestion of the defendant, in the nature of a plea since the last continuance, that the plaintiffs are prosecuting a suit against him in the Court of Bankruptcy, cannot be made available, either as a plea, or as a foundation for a motion to force the plaintiffs to elect, in which Court, they will pursue their remedy.

1st. It does .not appear that both suits are for the same cause of action.

2nd. A pleapuis darrein continuance is not admissible in a Court of Equity ; its effect, may ho obtained, by means of a cross-bill. 1 Ban. Ch. Pr. 6,31.

3rd. The ease of a mortgagee, is an exception to the general rule, and be may proceed on bis mortgage in equity, and, on bis bond, at lav/, at the same time. Danl. C. P., 962.

4th. The matter, which had existed so long, comes too late after hearing and decree.

The proceedings in bankruptcy cannot operate in suspension in this suit, as in eases oí involuntary bankruptcy, an application for the stay oí a pending suit in another Court, cannot be made, until the order of adjudication is proved. Bump on Bank, 332.

JüDGMENT AFFIRMED.