Kashaw

delivered the opinion of the court. Murray, Chief Justice, concurred.

This was a bill filed for a divorce, and a partition of the common property. A demurrer was sustained, on the grounds,—

Our Practice Act permits the wife to sue alone, when the action is between herself and her husband: Laws, 520. It is said, however, that there are other parties defendant to this action, and, therefore, it is not a suit between her and her husband only. It is a sufficient answer to this objection, that the statute does not use the word “ only.” The test of the wife’s capacity to sue, is simply to ascertain if the suit is between her and her husband, and this being found in the affirmative, the necessity of introducing other parties cannot affect her right. The object of the act is to take away the necessity of the old form of suing by 'proc'hein ami, and being a remedial statute, it must be beneficially construed.

2d. The act in relation to Husband and Wife, declares that in case of the dissolution of the marriage by a court of competent jurisdiction, the common property shall be equally divided between the parties; and the court granting the decree, shall make such order for the division of…