We do not think that the case of Hasbrouck agt. Vandervoort, (4 Sandford, 596,) affirmed in the court of appeals, (5 Selden, 153,) involves the proposition that the defendant Wilhelmina cannot be examined to any matter whatever, merely because she is a party with her husband on the record, in an action in which judgment can be had against him.
It is not to be contested that upon a bill in chancery properly framed and making a case of a charge created by a married woman upon her separate estate, she could be compelled to discover every matter as to her estate and her responsibility which could be properly inquired into, if she were a feme sole. If her husband is a party for conformity merely, no possible difficulty can arise upon proceedings to obtain such a discovery ; and if for want of a proper objection for a misjoinder of causes of action, a bill would be allowed to proceed as against him upon a personal liability, and also against her separate estate, it is not perceived that the rule would be inapplicable, and the discovery refused. In such cases, the answer of the wife cannot be used against the husband. (Anon., 2 Ch. Ca. 39; Murray agt. Barlee, 4 Simons, 84, and Mapes agt. Barlee, there cited; Francis agt. Wigzell, 1 Mad. Rep. 238; Ottway agt. Wing, 12 Simons, 90; 1 Hoffman's Ch. Pr. 230, and a, and notes ; Codington agt. Earl of Shelbourne, 2 Dick. 475.)
The 389th section of the Code has abolished all bills of discovery, and the method prescribed in the 390th and 391st sections, is the substitute. But the rules of a court of equity must in principle be applicable, with the alterations in the method and details made necessary. ,
It has been strongly urged that this complaint makes no case against the separate estate of the wife; that it would be held bad upon a demurrer on her behalf. There is great strength in this objection; and it is provided by the 148th section of the Code, that when objections the subjects of demurrer under section 144, are not taken by demurrer or answer, they shall be deemed to be waived, except the objection to the jurisdiction, and that the complaint does not state facts *285sufficient to constitute a cause of action. Accordingly it is held, that the last objection may be taken at the trial. (2 Duer, 650; 19 Barbour, 186; 3 Selden, 469.) It is urged that such an objection must avail on this proceeding.
But in the case in the court of appeals, evidence had been gone into, and the case as presented was, that no cause of action was made out upon the complaint and evidence. It may be remarked that if the objection is taken upon a trial and sustained, the party has the full benefit of reviewing and correcting the decision by an appeal.
But we do not think that this defendant can avail herself upon such an application, as the present of this objection. The principle upon which it would be allowed would admit a party to take the same objection upon any interlocutory motion in the cause, such as for a commission, which certainly would not be justifiable.
It follows that some examination can be permitted. It can be permitted as to the existence, situation and details of her separate estate. It is not proper to attempt to declare in what other, if in any other particulars, it can be allowed. It is sufficient to state that so far as she could be called upon to discover upon a properly framed bill of discovery before the Code, she may be called upon to answer here.
Order at special term reversed without costs.