Lockwood and Another against Thomas Salter and Sarah his Wife
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1833 |
| Date | 07 June 1833 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 803
IN THE COURT OF KING'S BENCH
S. C. 2 N. & M. 255; 2 L. J. K. B. 198. Discussed, Chubb v. Stretch, 1870, L. R. 9 Eq. 559. Approved, In re Parkin, [1892] 3 Ch. 519.
lockwood and another against thomas salter and sarah his Wife. Friday, June 7th, 1833. To a declaration against husband and wife, for a debt due from the wife before coverture, the husband's discharge under the Insolvent Act is a good plea. Quaere, whether it can be replied that the wife had separate property ? [S. C. 2 N. & M. 255; 2 L, J. K. B. 198. Discussed, Chubb v. Stretch, 1870, L. R. 9 Eq. 559. Approved, In re Parkin, [1892] 3 Cb. 519.] Covenant on an indenture made between the defendant Sarah (while unmarried) of the first part, Matthew Carr of the second part, Sophia George of the third part, and the plaintiffs of the fourth part, whereby in consideration of a marriage about to take place between the said M. C. and S. G., and for making some provision for them and the issue of such marriage, the said Sarah covenanted within six calendar months after such marriage to pay the plaintiffs, their executors, &c. 5001., with interest from the time of the marriage till payment: averment that the marriage took place, and six calendar months elapsed : breach, non-payment by Sarah while sole, or by the two defendants since their marriage. Plea, that, since the declaration, but before [304] the time for pleading expired, to wit, on, &e., the defendant Thomas was discharged under the Insolvent Act, wherefore the defendants prayed judgment if the plaintiffs ought further, &c. General demurrer. Joinder. Cresswell in support of the demurrer. The plea is no answer. The Insolvent Act only precludes the plaintiffs from taking the person or property of the husband : it is no bar of proceedings against the wife for a cause of action arising before marriage, (a) See Stevenson v. Lambard, 2 East, 575. 804; ' LOCK WOOD V. S ALTER 5B.&AD.305. Chalk v. Deacon (6 B. M. 128): and execution against her will be enforced by the Court, unless it appears that she has no separate property, SparJces v. Sell (8 B. & C. 1). In Pitts v. Heller (2 Stra. 1167), and Finch v. Duddin (ibid. 1237), the wife being taken in execution in an action against husband and wife, the Court refused to discharge her, no fraud appearing; and, in the latter case, the cause of action seems to have arisen during the coverture. The husband, in this action, was liable to be joined, merely for conformity, to obtain a valid judgment against the wife. If the present plea is an effectual bar, the wife, if the husband died, could not be sued again; the action, though substantially against her, is barred for ever. In Miles v. Williams et Ux. (1 P. Wms. 249), it was held that debts of the wife, dum sola, were discharged by the husband's bankruptcy : that decision, however, proceeded on a fallacy; viz., that debts due to and from the wife were to be considered in the same light, that, as the one passed to the husband's assignees, so the other must be proved under his commission. But, although the debts due to the wife dum sola may be reduced into possession by the husband or by his [305] assignees for the benefit of the estate, yet, on the other hand, a creditor of the wife before marriage might have execution against any separate estate which she had; and, as to this, the husband's bankruptcy would make no difference, for the separate estate could not be reached by the assignees, Bosvil v. Brander (1 P. Wms. 458). [Littledale J. The question, as to the discharge of...
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...at the same time to the case of a feme 1208 IVENS V. BUTLER 7 EL. & BL. 162. covert ; Defries v. Davis (1). In Lockwood v. Salter (5 B. & Ad. 303) it was held to be a good plea in bar, to an action brought against husband and wife on a covenant made by the wife dum cola, that the husband ha......
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