HUSBAND

AND

WIFE.

What are

neces

saries?

in adultery (k). A tradesman, or other person, who trusts wife living apart from her husband cannot treat the husband as liable to pay for goods supplied for her unless the circumstances of the case are such as to give her a right to pledge her husband's credit. The tradesman trusts her at his own risk, and if the circumstances are not such as to give her authority (if, for example, she is living in adultery, or receives an adequate allowance), then the husband is not bound, even though the creditor did not know these facts (1).

What are Necessaries? -The articles which can be treated as necessaries when supplied to a wife living apart from her husband, must be not only suitable in themselves to her position, but also indispensable, because not supplied from other sources, and indispensable without the fault or waste of the wife (m).

The term has, however, been given a considerable latitude of meaning. "Furniture for a house may be necessary for a wife in a station of life requiring her to live in a furnished house (n). Where it became necessary for a wife to exhibit articles of the peace against her husband, it was held that he was liable for the costs of an attorney employed by her on that occasion (o), and that an allowance made to her for maintenance could not be considered as applicable to that purpose (p). The costs of a proctor (q) employed by a wife in prosecuting

(k) Atkyns v. Pearce, 2 C. B., N. S., 763; 26 L. J. 252, C. P. Cooper v. Lloyd, 6 C. B., N. S., 519; Knox v. Bushell, 3 C. B., N. S., 334.

(1) Biffin v. Bignell, 31 L. J. 189, C. P.; 7 H. & N. 877.

(m) Compare the meaning of the word "necessaries" when used with regard to the contracts of an infant, and especially the question whether things can be necessary for an infant with which he is already supplied, pp. 285-288, ante, Ryder v. Wombwell, L. R. 4 Exch. 32 (Ex. Ch.); Jolly v. Rees, 33 L. J. 180, C. P., judgment of Byles, J.

(n) Hunt v. De Blaquiere, 5 Bing. 550.

(0) Shepherd v. Mackoul, 3 Camp. 326.

(p) Turner v. Rookes, 10 A. & E. 47.

(q) Brown v. Ackroyd, 5 E. & B. 819; 25 L. J. 193, Q. B. See Grindell v. Godmond, 5 A. & E. 755.

a suit against her husband for a divorce on the ground of cruelty, may be recovered as a necessary if there was reasonable cause for the suit" (r). The legal expenses incurred by a deserted wife preliminary and incidental to a suit for restitution of conjugal rights (s); in obtaining counsel's opinion on the effect of an antenuptial agreement for a settlement (t); in obtaining professional advice as to the mode of dealing with tradespeople who were pressing for payment, and of preventing a distress (u), have been all held necessaries for which a wife had authority to pledge the credit of her husband. Where, again, a wife lived separate from her husband for reasons which justified her in doing so, and her child, under seven years of age, was living with her against her husband's will, an order of the Master of the Rolls having been made under 23 Vict. cap. 54, giving the wife the custody of the child, and the wife had no adequate means of support, it was held by the majority of the Queen's Bench, that reasonable expenses for the child were necessaries for the wife, for which she might pledge her husband's credit.

HUSBAND

AND

WIFE.

death.

Effect of death.-On the death of a husband, his exe- Effect of cutors become liable on the contracts of his wife made during coverture, on which he himself was liable; thus, generally speaking, the executors of a husband are liable. for the debts of his wife contracted after marriage.

From the rule, however, that an agent's authority expires on the death of his principal, it results that if a wife enters into contracts of a character to bind her husband, believing him to be alive, but in reality, after his death, neither the wife herself, nor the husband's executors, can be made in any way legally liable in respect of such contracts. The widow cannot be made liable, because, having originally had, before she knew of her

(7) Leake, Contracts, 246.

(s) Wilson v. Ford, L. R. 3 Exch. 63.

(t) Ibid.

(u) Bazeley v. Forder, L. R. 3 Q. B. 559; 37 L. J. 237, Q. B.

HUSBAND

AND WIFE.

Effect of divorce.

husband's death, full authority to contract, she intended to contract as an agent for him, and did not make herself liable. Nor can she be treated as having fraudulently represented that she had an authority which she had not, or as having impliedly warranted that the authority under which she intended to act actually existed (r). The executors cannot be made liable, because the contract was made after the death of the testator (y).

After divorce the husband retains the liability which he had incurred before the divorce on contracts made by his wife during coverture.

RULE 69. The following are the results of errors in joinder of parties in actions against husband or wife :

1. If a husband is sued alone where his wife must be joined, the error is fatal.

2. If a wife is sued alone, where she must be joined, the only result is to expose the plaintiff to a plea in abatement.

3. If a husband is sued jointly with his wife where he ought to be sued alone, the error is fatal unless amended.

1. If a husband is sued alone, &c.-If a husband is sued alone where his wife ought to be joined, e. g., on contracts made with his wife before marriage (2), the error is fatal; for if it appears on the record, it gives rise to a demurrer, &c.; and if it appears on the trial, it gives rise to a nonsuit or adverse verdict. The defen

(x) Smout v. Ilbery, 10 M. & W. 1; 12 L. J. 357, Ex.

(y) Blades v. Free, 9 B. & C. 167; 2 Williams, Executors, 6th ed., 1633. Compare 2 Smith, L. C., 6th ed., 456.

*) Rule 69.

dant may plead the general issue, e. g., never indebted, and the error cannot be amended at the trial by adding the name of the wife (a).

2. If a wife is sued alone, &c.-If a wife is sued alone, e. g., on contracts made by her before marriage, a formal error has been committed; for she ought never to be sued without her husband. Still, the person sued is in reality liable. She, therefore, cannot treat the error as affording an answer to the action, but she may insist upon her husband being joined as defendant. In other words, she may plead her coverture in abatement. She can take no other advantage of the error (b).

with wife where he ought to

3. If a husband is sued jointly, &c.—If a husband and Husband wife are sued jointly where the husband ought to be sued sued jointly alone, the error is fatal, unless amended (c). It may, perhaps, be a question whether this error can be amended. It resembles rather the case of an action against a wrong defendant, than that of a simple misjoinder of defendants (d).

(a) Garrard v. Giubilei, 11 C. B., N. S., 616; 31 L. J. 131, C. P., esp. judgment of Williams, J., 31 L. J. 133, C. P.; 13 C. B., N. S., 832; 31 L. J. 270, C. P. (Ex. Ch.).

(b) Bullen, Pleadings, 3rd ed., 171; Lovel v. Walker, 9 M. & W. 299; Milner v. Milnes, 3 T. R. 627, 631.

(c) See Chapter XXXIV.

(d) If a wife be sued alone in cases where she ought not to be joined, she is, in effect, sued on a contract on which she is not liable. An action, therefore, against her cannot succeed. If, however, the defence is that she is not liable, because, at the time of making the contract she was a married woman, her coverture must be specially pleaded. Bullen, Pleadings, 3rd ed., 598; 8 R. G. H. T. 53.

be sued

alone.

CHAPTER XVII.

BANKRUPT

BANKRUPT AND TRUSTEE.

RULE 70.-A bankrupt cannot after his discharge TRUSTEE be sued on contracts made before bankruptcy (a).

AND

RULE 70.

Discharged bankrupt not to be sued on contracts

made

before

bank

ruptcy. Contracts

put an end

to by bank

ruptcy.

Bankruptcy does not of itself (b) free the bankrupt from liability on his contracts (c).

The following contracts with the bankrupt are put an end to altogether as far as he is concerned, by and from the date of the order of adjudication.

1st. Covenants or other contracts having relation to onerous property, which the Trustee may either adopt or disclaim.-Whether the rights and obligations under such covenants or contracts are adopted or disclaimed by the Trustee, the rights and obligations of the bankrupt cease from the time of his being adjudicated a bankrupt. If, for instance, the bankrupt has a lease of property under which he is bound to repair, the Trustee may adopt the lease, in which case all liability for future breaches

(a) Bankruptcy Act, 1869, ss. 23, 33, 31, and 49. Debts or liabilities contracted after the date of the order of adjudication are not proveable under the bankruptcy, or barred by the order of discharge. Bankruptcy Act, 1869, ss. 31, 49.

(b) Spencer v. Demett, L. R. 1 Ex. 123; Hartley v. Greenwood, 5 B. & Ald. 95; Jones v. Hill, L. R. 5 Q. B. 230. See Bankruptcy Act, 1869, s. 49, by which the discharge must be pleaded.

(c) A bankrupt sued at any time after the presentation of a bankruptcy petition, should apply to the Court having jurisdiction in bankruptcy to restrain further proceedings; and this he may do after the presentation of the petition in respect of an action in progress at the commencement of the bankruptcy. The Court has discretion whether to stay such actions or not. Bankruptcy Act, 1869, ss. 13, 4.