condition was ambiguous in its terms, it did not bind the purchaser: Symons v. James (1), Seaton v. Mapp (2)]. No reply. THE LORD CHANCELLOR: The property in this case is peculiarly circumstanced. There are a considerable number of shareholders, and it was anticipated that there would be great difficulty in getting in the legal estate in the shares so as to give a marketable title. Looking at the transaction, and to the whole of the conditions of sale, the vendor seems clearly to have had this object in view, viz., that the risk of making out where the legal estate was, and of getting it in, should be transferred from the vendor to the purchaser, who is to ascertain in whom the legal estate is, and how it is to be obtained. The sixth condition of sale provides that "if the purchaser shall consider the legal estate in the whole or any part of the property to be outstanding, and shall require a conveyance thereof, he shall bear the expense of obtaining all such conveyance or conveyances as he may require, and all other expenses in any manner incidental to the getting in of such legal estate, and of all proceedings relative thereto." It depends entirely upon the proper interpretation of those words whether the vendor is to find out where the legal estate is, and to convey it to the purchaser at the expense of the latter, or whether the purchaser himself is to find out whether it is outstanding, and where, and point out the manner in which it is to be got in. It seems to me the latter is the proper construction, for if the former were adopted the vendor would be left in the same position as to risk as if no special provision had been made. Upon the whole, my view of this question agrees with that of the MASTER OF THE ROLLS, my only doubt having been whether he ought not to have given the costs of the suit to the vendor. IN RE LEEMING, A LUNATIC (3). (3 D. F. & J. 43-44; S. C. 30 L. J. Ch. 263; 7 Jur. N. S. 115; 3 L. T. N. S. 686; 9 W. R. 403.) Real estate, subject to a mortgage, descended upon a lunatic. By an order made in the lunacy the mortgage was paid off out of the lunatic's personal estate, without prejudice to the question how it should ultimately be borne: The lunatic afterwards died intestate: Held, that the amount ought to be raised out of the real estate and paid to the administratrix as personalty. In this case a lunatic had become entitled by descent to a real estate, subject to a mortgage created by the ancestor. By an (1) 60 R. R. 156 (2 Y. & C. C. C. 301). (2) 70 R. R. 324 (2 Coll. 556). (1883) 22 Ch. D. 622, 52 L. J. Ch. SHEERNESS r. POLSON. [42] [43] 1861. Jan. 25. KNIGHT BRUCE, TURNER, L.JJ. [ 43 ] In re LEEMING. [ *44 ] 1861. Jan. 23, 31. Lord CAMPBELL, L.C. TURNER, L.J. [ 45 ] order made in the lunacy it was directed that the amount due on the mortgage should be paid out of the funds standing in Court to the credit of the lunacy, without prejudice to the question how the mortgage debt ought ultimately to be borne, and that the mortgage should be transferred to a trustee to be disposed of as the Court should direct. The mortgage was accordingly paid off out of the fund in Court arising from the lunatic's personal estate. The lunatic subsequently died intestate, and his administratrix *and next of kin now petitioned that the amount of the mortgage money might be raised out of the mortgaged estate, and paid to the administratrix, to be disposed of as part of the personal estate of the lunatic. Mr. W. H. G. Bagshawe, for the petitioners, referred to Ex parte Hinde (1). Mr. Bowring, for the heir-at-law, opposed the petition, [and] referred to Oxenden v. Lord Compton (2)]. Their Lordships held, that the sum expended out of the personal estate in paying off the mortgage ought to be raised out of the real estate comprised in the mortgage, and dealt with as personal estate. JENNER v. MORRIS (3). (3 D. F. & J. 45-56; S. C. 30 L. J. Ch. 361; 7 Jur. N. S. 375; 3 L. T. N. S. 871; 9 W. R. 391.) 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. THIS was an appeal by the plaintiff from a decision of ViceChancellor 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 (4). The plaintiff on the 5th of May, 1856, had recovered judgment against the defendant for a sum of 500l. 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, (1) Amb. 706, n. (2) 2 R. R. 131 (2 Ves. Jr. 69). 9 Eq. 151, 21 L. T. 523. (4) 127 R. R. 89 (1 Dr. & Sm. 218). 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. 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 which he had advanced to the plaintiff's 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 with necessaries, having regard to the plaintiff's circumstances and condition in life. The plaintiff appealed against this part of the decree. Mr. Glasse and Mr. Herbert Smith for the plaintiff, in support of the appeal, [questioned the authority of Harris v. Lee (1) and Marlow v. Pitfield (2), on which the VICE-CHANCELLOR proceeded, and they cited May v. Skey (3), and they contended that in any case there could be no set-off, and that there was no sufficient primâ facie case made for an inquiry, and none ought to be directed: Sandon v. Hooper (4), Molony v. Kernan (5)]. Mr. Archibald Smith for the defendant [contended that there was sufficient evidence to justify the inquiry, and that the defendant had a clear right of set-off in the absence of any legal remedy, as to which he cited Knox v. Bushell (6)]. Mr. H. Smith, in reply. * * * THE LORD CHANCELLOR: The question in this case is, (1) 1 P. Wms. 482, referred to in the judgment, post, p. 25. (2) 1 P. Wms. 558. (3) 16 Sim. 588, overruled by the present case. Judgment reserved. JENNER r. MORRIS. [ 46 ] [ 47 ] [ 49 ] Jan. 31. [ 50 ] JENNER V. MORRIS. [*51] out his right to an equitable set-off against the judgment debt in respect of which the bill is filed? I am of opinion that the decree of Vice-Chancellor KINDERSLEY in his favour ought to be affirmed. First, as to the facts, I think the defendant sufficiently proves that the plaintiff in the year 1847 deserted his wife without making any provision for her, and without any imputation of misconduct against her, so that any person who supplied her with necessaries would have been entitled to sue her husband for the amount. The allegations to this effect seem to me to be sufficiently supported by the defendant's answer (which is made. evidence), by his cross-examination, and by the plaintiff's letter to his wife dated 23rd July, 1849, in which he admits his liability to the tradespeople with whom she had dealt for necessaries. Next, I think it is proved, by the defendant's answer and the schedule annexed to it, that during this time he did supply the plaintiff's wife with sums of money which she applied in providing necessaries for herself, and that he actually paid sums of money to tradespeople who had supplied her with necessaries in satisfaction of their demand. The amount is left uncertain, and the defendant includes in his demand sums paid in respect of the plaintiff's children, which certainly cannot be included in the set-off. Considering that the plaintiff did not amend his bill on the answer coming in (as he might have done) by denying the desertion and the payment of the money by the defendant, and that the plaintiff has neither by himself nor any witness offered any evidence in contradiction, I think that a sufficient foundation is laid for the inquiry directed by the decree, if upon the truth of the facts alleged the set-off ought to be allowed. Desertion, and the advance of money to her actually applied in payment of necessaries furnished to her, being established, the question arises, whether the defendant who advanced this money can in equity claim a set-off in respect of it against a legal debt due from him to the plaintiff and sought to be enforced in equity. An action at law could not be maintained for such a claim.. Those who supply the necessaries to the deserted wife may sue the husband at law, she being considered his agent with uncountermandable authority to order the necessaries on his credit. But courts of law will not recognize any privity between the husband and a person who has supplied his wife with money to purchase necessaries, or pays the tradespeople who have furnished them. Nevertheless, it has been laid down from ancient times *that a court of equity will allow the party who has advanced the money which is proved to have been actually employed in paying for necessaries furnished to the deserted wife, to stand in the shoes of the tradespeople who furnished the necessaries, and to have a remedy for the amount against the husband. I do not find any technical reason given for this; but it may possibly be that equity considers that the tradespeople have for valuable consideration assigned to the party who advanced the money the legal debt which would be due to them from the husband on furnishing the necessaries, and that, although a chose in action cannot be assigned at law, a court of equity recognizes the right of the assignee. Whatever may be the reason, the doctrine is explicitly laid down in Harris v. Lee (1), and the other cases referred to. Objection has been made to these authorities that they are very old, and that they do not appear to have been acted upon in modern times. But it may be said, on the other hand, that they may have been acted upon without ever having been questioned, and that they are entitled to more respect from their antiquity. I find that they are cited and treated as good law by subsequent text-writers on this subject. Considering that to establish the equitable liability of the husband, proof is required that the money has actually been applied to the payment of the debt for which the husband would be liable at law, no hardship or inconvenience can arise from adhering to this doctrine. The circumstances which occurred in Harris v. Lee afford an illustration of the benefit which may arise from itunless money had been supplied beforehand to pay the surgeon. employed to attend the wife, she might have died of the disease communicated to her by her husband. One adverse case was cited, which I must notice, May v. Skey (2), the marginal note being "A. having gone abroad and left his wife unprovided for, the plaintiff lent her money to purchase necessaries, and she applied it accordingly: Held, that the plaintiff could not sue A. for the money in a court of equity." But it appears that the VICE-CHANCELLOR Who decided that case, not holding that there was not a debt due from A. to the plaintiff, which might be recovered, proceeded upon the notion that this was a legal debt, the payment of which could not be directed by a court of equity. His Honour more fully explains this as his ratio decidendi in the subsequent case of Hirst v. Tolson (3). But this is clearly erroneous. That no action at law could be (1) I P. Wms. 482. (3) 86 R. R. 45 (16 Sim. 623). |