Jenner v Morris
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1861 |
| Date | 31 January 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 795
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORD JUSTICE TURNER.
S. C. 1 Dr. & Sm. 218; 30 L. J. Ch. 361; 3 L. T. 871; 7 Jur. (N. S.), 375; 9 W. R. 391. Followed, Deare v. Soutten, 1869, L. R. 9 Eq. 154.
[45] jenner v. morris. Before the Lord Chancellor Lord Campbell and the Lord Justice Turner. Jan. 23, 31, 1861. [S. C. 1 Dr. & Sm. 218; 30 L. J. Ch. 361 ; 3 L. T. 871 ; 7 Jur. (N. S.), 375; 9 W. R. 391. Followed, Deare v. Smitten, 1869, L. E. 9 Eq. 154.] A person who advances to a deserted wife money to enable her to supply herself with necessaries has no demand, enforceable at law, against the husband for the advances but has a remedy in equity against him for so much of the money as is actually applied by the wife in paying for necessaries. Held, accordingly, where a Plaintiff who had deserted his wife filed his bill, to enforce a judgment against real estate of the Defendant, that the Defendant was entitled to set off the amount of sums which before and after the judgment had been advanced by the Defendant to the wife for the purpose of providing her with necessaries and had been applied by her for that purpose. May v. Skey, 16 Sim. 588, overruled. This was an appeal by the Plaintiff from a decision of Vice-Chancellor Kindersley declaring the Defendant entitled to set off against the Plaintiff's demand sums which the Defendant had paid to the Plaintiff's wife to provide her with necessaries, and which had been so applied. The Plaintiff on the 5th of May 1856 had recovered judgment against the Defendant for a sum of 500 and costs, and he filed his present bill for the purpose of enforcing- this judgment against the life interest of the Defendant in certain real estates. The Defendant did not dispute the validity of the judgment, but set up by his answer that the Plaintiff had in 1844 deserted his wife the sister of the Defendant, and had ever since lived separate from her and had not maintained her, and that the Defendant before and after the judgment had paid considerable sums of money to her for her maintenance and support, and that such monies had been actually laid out in the purchase of necessaries for her, and the Defendant claimed to be entitled to the repayment of these sums by the Plaintiff and to stand in the place of the tradesmen who had supplied the necessaries, and to set off the same against the sum for which the judgment was recovered. [46] The cause was heard by Vice-Chancellor Kindersley, who made a decree declaring that the Defendant was entitled to be repaid by the Plaintiff the sums whick he had advanced to the Plaintiffs wife, and which had been actually expended in the purchase of necessaries, and directing an inquiry " whether during the time the Plaintiff and his wife were living apart from each other the Defendant has paid to or on account of the Plaintiff's wife, and when, any and what sum or sums of money for the purpose of providing her with necessaries, and whether such monies or any and what part or parts thereof have or has been duly applied in providing her 796 JENNER V. MORRIS 3 DEO. F. & J. 47. with necessaries, having regard to the Plaintiffs circumstances and condition in life (1 Drew. & Smale, 218). The Plaintiff appealed against this part of the decree. Mr. Grlasse and Mr. Herbert Smith, for the Plaintiff, in support of the appeal. The question is, whether in a Court of Equity a person who owes money to the Plaintiff can set off money advanced to the Plaintiff's wife to enable her to purchase necessaries. It has been decided by the Vice-Chancellor that he can, but this is on the authority of two old cases decided in 1695 and 1734, Harris v. Lee (1 P. Wms. 482) and Markw v. Pitfield (Ib. 558), which have never been followed. [THE lord chancellor. Have they ever been disapproved or overruled 1] They contravene the common law rule that a woman cannot borrow so as to make her husband liable ; Stone v. Macnair (1 Moore, 127); and how does the equity arise, there being no trust for payment of debts-nothing to make the matter a subject of equitable jurisdiction. The Defendant could not have sued here for payment; May v. ftkey (16 Sim. 588); so how can [47] there be a set-off. As regards monies advanced since the action, there cannot be any case of set-off. As regards the items prior to the action, there cannot be relief after judgment, for the Defendant might have pleaded equitably, and after judgment no defence is available in equity of which the Defendant might have availed himself at law; Harrison v. Ndtlesldp (2 M. & K. 423). Evans v. Hremrulge (8 De G. M. & G-. 100) was before judgment, and Phdps v. Prothero (7 De G. M. & G. 722), and Terrell v. Higgs (1 De G. & J. 388), do not conflict with our view. We come to enforce a judgment which is in the nature of a mortgage, and a mere personal demand cannot be set off. The evidence does not prove desertion, and the mere living apart does not render the husband liable; the person supplying necessaries was bound to inquire. The letters from the wife to the husband after the alleged desertion were rejected below, but we submit that they ought to have been admitted; Piawson v. Haigh (9 Moore, 217); and they clearly make it appear that she deserted the husband. [THEIR lordships held the letters not admissible.] The Defendant, moreover, has not proved that any part of the money was expended in necessaries, which he was bound to do, for he cannot stand in any higher position than the tradesmen who supplied the necessaries. There is no sufficient priind fade case made for an inquiry, and none ought to be directed; Sandon v. Hooper (6 Beav. 246); Marten v. WlMhelo (Cr. & Ph. 257); Molony v. Kernan (2 Dru. & War. 31). Mr. Archibald Smith, for the Defendant. There are three points in the case : First, whether there has been a desertion of the wife by the husband. Secondly, whether money has been supplied by the [48] Defendant to the wife for the purpose of supplying her with necessaries, and has been so expended. Thirdly, whether the law of this Court is, that the Defendant has a right of set-off, if the first two points are answered in the affirmative. As to the first point, desertion for the present purpose means either an actual desertion by the husband or a separation by mutual consent; Smith's Leading Cases (vol. 2, p. 284 (3d ed.)); and the evidence on this point is sufficient. As to advances having been made and applied for necessaries, our evidence is sufficient to lay ground for inquiry, and the decree only directs an inquiry. As regards advances since the action was commenced, the rule of common law which confines set-off to demands existing when the action commenced is a purely technical one, and not to be followed in equity. As regards the advances made before the action, even if the demand had been a legal one, we should not have been bound to plead set-off; we might have brought our action ; a legal demand is not lost by not setting it...
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...Ch 196, 201-2 (Neville J). See also Harris v Lee (1718) 1 P Wms 482, 483; 24 ER 482, 482; Jenner v Morris (1861) 3 De G F & J 45, 51-2; 45 ER 795, 797-8 (Lord Campbell LC), 55-6; 779 (Turner LJ); Re Wood's Estate; Davidson v Wood (1863) 1 De G J & S 465, 467; 46 ER 185, 186 (Bruce (......