Re Cutler
| Jurisdiction | England & Wales |
| Judgment Date | 06 August 1851 |
| Date | 06 August 1851 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 271
ROLLS COURT
S. C. 20 L. J. Ch. 504; 15 Jur. 911.
[220] In re cutler. August 4, 6, 1851. [S. C. 20 L. J. Ch. 504; 15 Jur. 911.] A sum of 140 belonged to a husband in right of his wife. He had taken the benefit of the Insolvent Act. The Court held that his assignees were entitled to no part of the fund. Foclen v. Firnney, 4 Russ. 428, is considered not binding. A sum of -140 was in Court, which belonged to Mr. Halliday in right of his wife, Elizabeth Halliday. Mr. Halliday had taken the benefit of the Insolvent Act. A petition was now presented by the assignees for payment. Mr. J. H. Palmer, in support of the petition. The sum being under 200, the husband and his assignees are entitled to payment without the consent of the wife, and without making any settlement. He referred to the General Order of the 16th of February 1807 (Beames's Orders, 464; Sanders's Orders, 684), which directs that sums under 200, ordered to be paid to unmarried women, may, after their marriage, be paid to their husbands on affidavit of marriage and no settlement. Mr. Amphlott, contra. The husband is insolvent, and therefore the wife is destitute. In such cases, the [221] whole fund is given to the wife and children ; Brett v. Greemaell.(l) He also cited Bailey v. Dennett (3 Y. & C. (Exch.) 459), and Elwm-thy v. Wickstead (1 Jac. & W. 69). Mr. Hardy, for the trustees. the master of the rolls. I will reserve my judgment. August 6. the master of the rolls [Sir John Romilly]. I was desirous of reserving my judgment in order to ascertain what the practice of the Court was in such cases. I also thought that there was a case not cited, in which the Court had expressly determined, that when the sum was under 200, the husband, though he had deserted his wife, is entitled to it. The case is Foden v. Finney.(2) At the same time I fully concur in the observations advanced in favour of the wife, and the result of that case has always appeared to me very inconsistent with the usual practice of the Court. Where the wife is deserted, or the husband is incompetent to maintain her, the Court is in the constant habit of settling every penny on her and her children. The case of Brett v. Greenwell is an instance of this description, and I have known it...
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