Fairburn v Pearson
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 1850 |
| Date | 27 May 1850 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 56
HIGH COURT OF CHANCERY
[140] nichols . ward. Jan. 31, March 9, 1850. [See Hope v. Carnegie, 1868, L. R. 7 Eq. 261.] Practice as to enforcing answers from husband and wife, where the latter is living separate from her husband and out of the jurisdiction. In this case William Ward and Frances his wife were Defendants to a foreclosure suit in respect of the separate property of Mrs. Ward. W. Ward was duly served on behalf of himself and wife with a subpcena to appear and answer. He appeared for himself only, and the Plaintiff entered an appearance for the wife. On the 24th December 1849 W. Ward, who defended in formd pauperis, put in a separate answer for himself only, his wife having gone out of the jurisdiction subsequently to the appearance being entered for her. On the 12th January 1850 the Plaintiff moved before the Vice-Chancellor Wigram to take this answer off the file for irregularity, on the ground that W. Ward ought B .411 to have obtained an order for his wife to answer separately. Upon this motion is Honour made an order, the husband not opposing, that F. Ward, the wife, should be at liberty to answer separately from her husband. The Plaintiff (who had not taken an office copy of the answer) now moved to discharge the order of the Vice-Chancellor, and also to take the answer off the file in the terms of his original motion. Mr. Baggallay, in support of the motion, contended that the answer put in by the husband was irregular, and that the Plaintiff was entitled to have it taken off the file, in order that when the proper time came he might attach the husband for contempt. He referred to a case of Steele v. Pltner,(l) as shewing that W. Ward could not safely be attached for want of answer while the present irregular answer remained on the file of the Court. [THE lord chancellor [Cottenham]. If the husband were in contempt for not putting in a joint-answer, his putting in a separate answer for himself only would not discharge him, If the wife did not choose to answer, the contempt would not be cleared, and the husband would not gain anything by the order made by the Vice-Chancellor. [142] This order was made in the absence of the wife, and in no way prevents the Plaintiff putting the husband in contempt. If the answer is taken off the file, and the husband then comes to the Court for an order, he will be right.] Mr. Beale, contra, submitted that the motion was premature, the time...
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