Manby against Scot
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1685 |
| Date | 01 January 1685 |
| Court | Court of the King's Bench |
English Reports Citation: 83 E.R. 1008
IN THE COURT OF KING'S BENCH
1008 MICH. 14 CAR. II. B. R. 1KBBLE.MS. [383] 92. manby against scot. Ante. November 15. In Contract. Br. 19. Twisden for the plaintiff as before, conceived the verdict very proper, for thia being sufficient evidence, had the jury fouud it, they had made an end of the case, and they need not shew the particular, what is necessary, unless the question had risen thereon, as Stone against Withipoll; arid as in ejectment of copyhold, if question arise on the reasonable fine, then the particulars must be found; contra where its on demand, so 24 Car. Parker against Ooxe; and here is no doubt but its necessary ; but the question is, whither it charge the husband to the point; he conceived the husband chargeable, because she is wholly disabled to contract, and therefore when things are necessary, the law will create the means, as if she take bread and eat it, trover lyeth against him, 7 Car. City of Westm. against Gerrard, the defendant a married woman, of personal estate, she had a grandchild, who was laid to the parish, and the question was ; whither the husband, (so Drapers case, out of Leicestershire) as the grandfather of the infant, should keep it, or the parish, and resolved on reference to two Judges, that though Gerrard were no grandfather within 43 Eliz. yet for the benefit he had by his wife, 39 Ass. 1, he was bound to keep him ; and when the husband will thus take advantage of his own wrong, in riot keeping her, its reasonable he should be charged ; and the disability of the wife is no hinderance to contract for necessaries, Perk. 4. 14 Ed. 4, 2 i.e. to charge the husband, as infants contracts are void, except for clear necessaries convenientise, H. 2 Car. As if infant be housekeeper, which is not necessary quo ad esse, yet for such provision he is chargeable, B. E. Tr. 15 Jac. Kot. 1374, Hill against Blacksto 9 H. 7, 21. Lease by infant without rent is void, and trover lyeth for goods delivered with his own hand ; contrk of trespass, because it cannot be said vi & artnis, if the wife be beaten, being absent from her husband, and be cured, she is not suable, but only the husband; and its no reason this should charge the husband, more then for meat and drink; for in waut of both, she will perish : so if she have a child cured, the law will charge the husband, Hub. 11, Bridgmans case master of a ship, who hath only conduct of it, may yet pawn it in case of danger ; and shall the law take care [384J of danger; and take care of such things, and not of the lives of men'? To abjured persons the law yet allows food, &c. (Coron. 407, Artie. Cleri, 13 H. 7, 3), much more here : so moin for necessity of the house may take up necessaries, not that he can put life into them, but because else the house would want support, 9 Co. Hussyea case she shall not suffer imprisonment for ravishment of ward, because she cannot satisfie; so here, because she cannot acquire any thing, the husband shall bn charged : nor is it much doubted de re, but de modo : alimony is not mentioned in Art. Cleri, nor Candryes case 5 Co. 9, nor in 25 H. 8, cap. 12, which all sum up the heads of the ecclesiastical jurisdiction, the estoveria was doubtless grounded on excommengement propter ssevitiam, and could it be made good (though the practice hath been always against it) it were to the purpose. I agree the rights of matrimony 7 Co. 44, Kens case 4 Co. 29, as divorces, &c. belong to Spiritual Court, but all things that belong to matrimony is no matrimonial cause, 48 Ed. 3, 18. 50 Ed. 3, 90, 19. F. N. B. 44, 45. 52 Ass. 7, promise of money in marriage is suable in the Spiritual Court, contra of promise to give money to such as shall marry my daughter ; Debt. 8, and alimony is not properly a matrimonial cause, by reason it depends not on separation : F. N. B. 139. So the register must be understood of debitis & catallis given in testatnento or matrimonio, but yet alimony is 1 Car. Greens ease, a consequent of the judgment of divorce in Spiritual Court, arid ao may be there then allowable; but its hard she should have no allowance, unless she be divorced; and by the course of the Spiritual Court they do not allow alimony till separation ; and no case hath been cyted where alimony alone originally was sued for there, F. N. B. 53 b. 139, and yet if it were, Hut. 116, and 24 Car. Globenyes case, she hath liberty of Court, and the suit in the Spiritual Court, suits not with this case, being for necessary support, 2 Car. Penelope Owens case, in prohibition to the marches, it was held the Spiritual Court cannot sequester estate, and they will not allow alimony till causa est contestata, nor after 37 H. 6, 14. So 18 Eliz. cap. 3, of Bastdras, might have provided that the father should be imprisoned till he allow the son maintenance, but it goeth a surer way that the parish shall allow present subsistence, and charge the father after; and it was foreseen, 21 Jac. cap. 24, 1KEBLE.38J. MICH. 14 CAR. II. B. R. 1009 that men would live in prison rather then pay debts; and though it be cause of divorce for severity if the husband take away her necessaries, yet that doth not take [385] away her liberty of charging the husband, no more then her taking supplicavit and binding him to the peace, and if the fault be in the husband, that then she may charge him, then all the arguments of her contract fall to the ground, and the obedience or disobedience signin'eth nothing; also could she obtain a separate maintenance, aa she shall in Spiritual Court, and separation beside, then she may rant and live as feme sole and laugh her husband in the face; but if she sue at common law, it will make her very cautious how she proclaim her defaults before a jury in open Court: also a trover will lye 21 H. 7, 40, or trespass if the contract be void against both, and so she, as well as he may be imprisoned; and if elopement alone be cause at common law to lose dower, that is when she is become feme sole, and able, but she doth not hereby lose food and rayment during marriage ; nor is it said she shall lose alimony in Spiritual Court: also here is no time defined, when such elopement shall be a forfeiture. 3. As to the prohibition, its annexed to the liberty of the wife, and so void contra where annexed to feoffee, as not to infeoff J. S. Also should he adhere to the enemies of the King or have the plague, she may be a good woman, and yet refuse to go with him; and therefore there is no reason she should want maintenance for such cause: also this is an incident inseparable to her, and there is no reason the abuse of the mercer should take away her use of such things as the law alloweth. I agree the case of the wives resceit of rent to be void, but that's nothing to necessaries : also we defend the liberty of common law, and so though plaintiffs are not put to shew authorities, but such must produce them that would draw the cause ad aliud examen, as the defendants, 11 H. 6, 30, by Martyn is put as a case unquestionable, and so is a full authority ; and the opinion of the Court went a step further, that he need not say the things were for the necessary use of the house 8 Car. Jones said it had been adjudged in Bill against Lake, that the cause of action began by the request that this is a new action, cannot be said, seeing the several opinions before, yet it hath not been very frequent before; but before 12 H. 8 no action upon the case lay against the executor on promise of testator, but many authorities to the contra, 7 H. 7, 12. 11 H. 7, 26, only Norwoods case; PI. Com. 183. So of latter times, action upon the case on 43 Eliz. 6, 12, Policy of Assurances, so assumpsit against feme for not marrying with him, lyeth now at common law every day; also when this action was brought, [386] no alimony was allowable, the Courts being taken away, of which the stat. 17 Car. taketh notice, and all the spiritual law is but branches of the common law, arid therefore when they cease, they retorn again to common law 12 H. 7, 18. Atkins for the defendant as had been argued before.
English Reports Citation: 83 E.R. 816
COURT OF KINGS BENCH
See S. C. 2 Sm. L. C. (11th ed,). P. 446, 1 Lev. 4; 83 E. R. 268 (with note.)
[69] 40. in contract br. 19. entred tr. 1659, rot. 1460. manby against scot. [See S. C. 2 Sm. L. C. (llth ed.), p. 446; 1 Lev. 4; 83 E. R. 268 (with note.] Bnv. & feme. 1 Brownl. 47 r. An action upon the case for wares sold to the wife of the defendant after departure from her husband, but...
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