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December 9, 1896,
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Is it necessary that the wife, in order times that a court of equity will allow the party rule, to to procure necessaries, should obtain advances of who has advanced the money which is proved summary money In other words, is it a necessary for to have been actually employed in paying for 1873 that
wife to borrow money to pay cash for necessaries furnished to the deserted wife to diction in Equity By section 10 of Ord
Ordinance) necessaries which she may procure upon the stand in the shoes of the tradespeople who XII. of 1873 (the reconstituti credit of her husband? The only condition furnished the necessaries, and to have a remedy the Supreme Court (which includes the under which I can conceive, an affirmative an- for the amount against the husband; and Puisne Judge acting separately in Comt) swer to be possible is when tradesmen have again "that no action at law could be main-shall be a Court of Equity with such and the refused to supply the wife except on cash terms; tained for such a demand was considered too like jurisdiction as the Court of Cha but this condition does not exist in the present clear for argument in the recent case of Knox v.
England. Is this wide jurisdiction case. Moreover, where money has been lent the Bushell." Here, then, in a case of which the exerciseable by the Supreme Cour contract arises upon the lending and is not facts are on all fours with the facts in the mary jurisdiction? Is this dependent for its character upon the uses to present case, we have a Lord Chancellor not tion limited by any enactment? which the loan has been applied, and I cannot only categorically asserting that no action at tended that the summary jurisdiction of the see how this principle can be altered when the law could be maintained against a 'hushand for Supreme Court should be coextensive contract arises upon a loan to a deserted wife money lent to his deserted wife and by her wielded by the Court of Chancery in who expended the money lent upon necessaries. expended upon necessaries, but also stating the one would not expect to find any restrict The engagement by the wife in the present reason why such an action would not lie and actment on the subject in the Summary Juris-
But what do we find P instance being in the nature of a money debt, explaining why equity, will enforce such a claim. diction Ordinance. for which (not being of the nature of a contract Another case pointing to the same conclusions Section 4 of Ordinance XIV of 1873 says, this for the supply of necessaries) the husband is is that of Deare v. Soutten, L. R. 9 Eq. 151, into "From and after the commencement not liable at law unless he expressly or impliedly which I will not, however, enter. Turning Dow Ordinance it shall be lawful for the Supreme by conduct constitutes his wife his agent to to the text books. In Leake's Digest of the Law Court to exercise a summary jurisdiction borrow money on his behalf, the present defendant of Contracts (1878), p. 575, I read as follows:- Law and in Equity in the suits or matters he appears to me on principle to be not liable at The husband not liable at law for money lent inafter mentioned," and section 19 says law to the plaintiff in this case. But apart from lent to his wife, although borrowed and applied shall be lawful for the Supreme Court principle, what have the reported cases and text by her for the purpose of procuring necessaries exercise a Summary Jurisdicton in Equi books to say upon the subject ? In the case of for which she might have pledged his credit. the suits or matters hereinafter mentioned, Earle v. Peale, 1 Salkeld 386, there is a dictum But in equity, if a person lend money
is to say," and enumerates certain suita or mat- ters. Now this section 19 is taken from the of Parker C. J. who says, "A feme covert may to a wife to procure necessaries under circum- buy necessaries and her act shall make the hus- stances in which she is entitled to pledge her English County Courts Equitable Jurisdiction band chargeable; but she cannot borrow money husband's credit, and she expends it Act of 1865. This Act is entitled "An Act to to lay out for necessaries." In the case of Knox necessaries, or if a person pay money confer on the County Courts a limited juris- v. Bushell, 3 C.B. n.s. 334, Crowder J. in the in discharge of debts for such neces- diction in Equity;" and it is clear that course of the argument asked "Have you any saries for which the husband is liable, the intention of the local legislature was authority that money lent to the wife, though the husband or his estate may be charged with to follow the precedent of this statute, for a specific purpose, may be recovered in an the sums so lent or paid." In the treatises of for the marginal note to section 19 of Ordinance XIV. of 1873 refers to this very Act. action against the husband?" and the reply of Chitty and Addison on Contracts, there is a counsel was "There is no case expressly in similar exposition of the law; whilst in the As regards the extent of the equitable jurisdio- point at law, but there is a case in equity which notes to Manby v. Scott in Smith's Leading tion thus conferred on the County Courts and comes very near this-Harris v. Lee, 1 P. Cases 9th Edn. Vol. II. p. 539, the learned by inference in the Supreme Court of this Wms. 482," in which per curiam it was said, authors remark-" It must be observed that even colony in its Summary Jurisdiction Mr. Admitting the wife cannot at law borrow in those cases in which the husband would be Pitt-Lewis in his County Court Practice, 2nd It will be found. money, though for necessaries, so as to bind the liable for necessaries supplied to the wife, he is ed. vol. I., p. 205, remarks, husband, yet this money being applied to the not liable in law for money lent to the wife and however, that the whole of the enactments con- use of the wife for her use and for necessaries, afterwards applied by her in procuring neces- ferring on the County Courts jurisdiction of an the plaintiff that lent this money must in saries. Knox v. Bushell, 3 C.B. n.s. 334. Secus, equitable nature are much more guarded in -equity stand in the place of the in equity, Deare v. Soutten, L.R. 9 Eq. 151. It their enactments" i.e. than those conferring a persons who found and provided such would seem, however, that the rule of equity Common Law jurisdiction. necessaries for the wife; and therefore as such would now prevail since theJudicature Act, 1873, continues, "no general enactment conferring a persons would be creditors of the husband, so came into force, by reason of section 25 sub- general jurisdiction to try matters of an equit- the plaintiff shall stand in their place and be a section 11." Having now established that the able nature. But each enactment cautiously creditor also," Upon which Crowder J. re- present claim is one which can be entertained confers a jurisdiction over certain named cases marked. "That seems rather at variance with only in a court of equity, it remains to examine and over these named cases only. When there the rule at law." Now this case of Knox v. and decide whether the Supreme Court of this fore a matter is one which, under the old system Bushell was an action at law for money lent to colony, in the exercise of its summary jurisdiction, before the Judicature Act, was within-the jüris- a wife who applied the same in procuring neces- has jurisdiction in equity in the present matter. diction of the Court of Chancery only, the saries for which the husband would have been For the defendant it was argued that the sum- County Court has no jurisdiction to entertain liable, and it was held that the husband was not mary jurisdiction in equity of the Supreme it, unless that jurisdiction is in terms bestowed; liable for the money lent. I am alive to the Court of this colony is strictly limited to the in respect of that particular class of action, fact that-in Knog v. Bushell the husband and matters set forth in section 19 of Ordinance some express enactment." Upon the conclusi wife were not living apart in the manner in XIV; of 1873; but the plaintiff's contention that the equitable jurisdiction of the Supre which the present defendant and his wife have was that if this was so, nevertheless the present Court in its summary jurisdiction is car been, but that does not make the case, the less matter is one which is covered by sub-section restricted in its scope, follows the ren an authority to be followed in the present case, 3 of the said section. It may be helpful to question-Does the word charge in subsec for in my opinion, whether in the case of state the history of the summary jurisdiction of section 19 of Ordinance XIV. of 1873 cohabitation or in the case of separation by the of the Supreme Court. By Ordinance XV. of the equitable liability of a husband for money husband's fault, the authority of the wife to 1844, the Court of the Chief Superintendent lent to his deserted wife and expended în neces- bind her husband for necessaries only is the was abolished and a Supreme Court was estab-
saries? A charge may be defined as an agree same in kind but different merely in degree; in-lished to be holden before a Chief Justice with ment, declaration, or direction, whereby real or both cases the authority is one implied by the a legal and equitable jurisdiction coextensive personal estate is expressly or constructively law, being rebuttable in the one instance and with that exercised by the Courts of Common made liable, othewise than by way of mortgage, irrebuttable in the other instance. The next Law and of Chancery of England. By Or- to the discharge of some pecuniary hardenas
that of Jenner v. Morris, 30 L. J. Ch. dinance IX, of 1845, this Supreme Court was
a debt or legacy, or the portion of a widow or 361, was a suit instituted by the plaintiff for for the first time invested with a summary child: it is a security created by express, provi the purpose of enforcing a judgment entered jurisdiction in matters involving debts and sion. In the present case, there has been against the defendant, who set up a defence of a damages of a small and trifling amount. Seven- declaration or direction by the set off in respect of money supplied by him teen years later, in order to relieve the Chief creating any charge. Has there been an for the support of the plaintiff's deserted wife. Justice of some of his duties, etc., and to relieve agreement? No; because the only agreement Campbell L.C. said, "Lesertion and the advance the Police Court of all proceedings of a civil extant is that between the plaintiff. of money to her actually applied in payment nature, Ordinance VII. of 1862 was passed es- fendant's wife; and that agreement does of necessaries furnished to her being established, tablishing a Court of Summary Jurisdiction and nor per se bind the defer the question arises whether the defendant, who authorising the appointment of a Judge thereof. wife was not adting as an ag advanced this money, can in equity claim a set- But the jurisdiction of this Summary Court was impliedly. Moreover it is off in respect of it against a legal debt due from the same as the summary jurisdiction conferred husband's liability in equity con him to the plaintiff and sought to be enforced on the Supreme Court by Ordinance IX. of referred to such an origin, the point in equity. An action at law could not be 1845 and was a jurisdiction at law only. There long ago have been taken in a Court of Equitys maintained for such a claim. Those who
were then from 1862 to 1873 two Courts exist- but I can find no case in which this has. supply the necessaries to the deserted wife may ing in the colony, viz., the Supreme Court and For these reasons I am of opinio sue the husband at law, she being considered his the Court of Summary Jurisdiction. But in defendant has made good his con agent with uncountermandable authority to 1873 the constitution of the Supreme Court the present claim is not ente order the necessaries on his credit. But Courts
was amended by the appointment of a Puisne Supreme Court in its of law will not recognise any privity between the Judge in addition to the Chief Justice of the. The plaintiff will accordingly husband and any person who has supplied his said Court; the Court of Summary Jurisdiction with costs. wife with money to purchase necessaries, or pays was abolished; a Summary Jurisdiction at Law the tradespeople who have furnished them.and in Equity was conferred on the Supreme Nevertheless it has been laid down from ancient Court, and the Puisne Judge was, as a general
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Mr. Francis I ask your Lordship, under
Court Ordinan section 36 of the Summa transfer the suit to the Original Jurisdictio
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