so doing, that before he could decide whether the husband would have been liable, he must have enough before him to convince him that the wife had good ground for defending the suit, which could not be done until the suit for a divorce was decided."

The petition also stated that, according to the practice of the Ecclesiastical Court, when the proctor of the wife wishes to recover costs incurred in her behalf against the husband, he first has his bill taxed; he then obtains an order, called a monition, for payment, which is served on the husband; and if the husband does not pay, he pronounced in contempt. He then procures a writ, signifying the contempt, called a significavit, from the Ecclesiastical Court, and, upon this, he procures a writ de contumace capiendo out of Chancery, under which the husband is attached.

The petition also stated that the proctor is not bound to wait for the termination of the suit before he takes these proceedings, but may have his costs taxed, as it is called, de die in diem, and take these proceedings from time to time.

Mr. Swanston and Mr. Rolt, for the petition. All the property of the wife vests in the husband by law on the marriage, and she is incapable of holding property. If a wife be made a defendant in a suit in the Ecclesiastical Court, she has a right to defend herself. In so defending herself she must incur costs. Who is to pay these costs except the husband? The law which gives him the property of his wife throws on him the obligation of paying these costs necessarily incurred by the wife. These costs are a debt by the husband to the proctor employed by the wife, and may be properly recoverable against him at law. It is true there is no precedent of such action, for, in general, the machinery of the Ecclesiastical Court is sufficient to obtain payment. In principle, however, there is no reason why the husband should not be sued at law. This then was a debt due from the husband at the date of the fiat, and may be proved in his bankruptcy. It may be said that the wife's separate estate is the proper fund to pay the costs. There is no proof, however, of any separate estate in this case, and the presumption is, in the absence of evidence of the contrary, that a wife has no separate estate. They cited

Shepherd v. Mackoul, 3 Campb. 326. Grindell v. Godmond, 5 Ad. & El. 755; s. c. 6 Law J. Rep. (N.s.) K.B. 31. Turner v. Brookes, 10 Ad. & El. 47; s. c. 8 Law J. Rep. (N.s.) Q.B. 211. There is no remedy at common law for such costs. The proper remedy is by the proceedings in the Ecclesiastical Court mentioned in the petition. Another objection is, that the result of the suit ought to appear, that it may be ascertained whether the wife had a valid defence or not. They also cited

Wilson v. Wilson, 1 Lee, 90, 640; and
Stones v. Cooke, 7 Sim. 22; s. c. 3 Law
J. Rep. (N.S.) Chanc. 225.

SIR J. L. KNIGHT BRUCE.-The bankrupt, in this case, sued his wife in the Consistory Court of London, for a divorce, upon the ground of alleged adultery. She appeared and defended the suit by her proctor, the petitioner, and, certain proceedings having taken place in the suit after her appearance, costs and expenses were thus incurred in it upon her part, the amount of which, had she been sui juris, would plainly have been a just debt from her to the proctor. As, however, she was not sui juris, it is to be assumed that the proctor, unless he had a demand for his expenses upon the husband, was not entitled to claim them of any other party. These costs and expenses had been, I consider, obviously occasioned by the husband's act, in this sense, that the cause in the Consistory Court was of his institution, and the wife was justly entitled to defend herself (at all events, if she was innocent, and hitherto she had not been proved guilty), and, if entitled to defend herself, she was entitled, although not obliged, to do so by means of a proctor. The costs and expenses having been incurred, the husband, pending the suit, became bankrupt, but, pre

viously to the bankruptcy, there had not been any bill of costs, any taxation, monition, or decree in respect of the costs, The petition now before the Court sets forth various particulars, and it will perhaps be better to give those statements in the words of the petition itself. [His Honour here read the parts of the petition set forth in the statement of the case.]

The question raised by the petition is as to the correctness of the conclusion of the learned commissioner. It seems to be admitted that, had the proctor chosen to be more active, he might have obtained from the Court, at any time after the wife's appearance, an order for the taxation of the costs for the time being in her suit, and a monition for them against the husband, before the bankruptcy. There is no evidence that the wife had any separate property. This was a point as to the materiality or immateriality of which, upon the present petition, I will say no more than that the absence of any such evidence cannot prejudice the case of the petitioner. There is no evidence that the wife had at any time confessed adultery. For the present purpose, as between the petitioner and the assignees, who were strangers to the proceedings, the wife is to be presumed to be innocent; the suit not having been abandoned until after the bankruptcy. I am of opinion that it would. be improper to consider the wife as having been otherwise than unjustly sued. She has, indeed, uniformly asserted her innocence. It must be taken, then, that an unjust suit, involving the wife's station in society, her honour, and her subsistence, was brought against her by her husband, who himself must be considered as having compelled her, either to defend the suit, or, by omitting all defence, to forego her claims upon his support, her continuance in society-to become, in effect, a pauper and an outcast. Was it reasonable and proper that she should defend such a suit? To that but one answer can be given. Was the defence necessary to her? It might be true, that to be slighted and shunned by society may be an evil, viewed variously, as of more or less weight in various cases by various persons: but who can dispense with food and raiment? If these are necessary, is it less so that she should have the opportunity of resistance to the

unjust obstruction of the means of ob taining them? Can that be deemed a matter of fancy or superfluity? Surely her defence of the suit was necessary, as well as reasonable and proper; and that she should employ a proctor for the purpose, was equally reasonable, equally proper, and equally necessary; for although she might have been competent to defend the suit in person, she certainly was not bound to do So. Why, then, is it not to be considered that the husband was at the time of the bankruptcy legally indebted to the petitioner in the amount of his bill at that time? The bill appears to be as much for necessaries properly furnished to the wife, as a bill for ordinary provisions, clothing, and medical attendance would have been. They were not less justly chargeable upon the husband than the costs of an attorney employed by her to defend herself against an indictment for a crime, if she had been falsely accused, and her husband had refused to interfere. A man without cause turning his wife out of doors, sends her into the world with the power of obtaining credit against him for necessaries. All her tradesmen become the creditors of the husband. In like manner it appears to me that by causelessly sending the wife into the Ecclesiastical Court to meet a charge of imputed adultery, the husband enables her to obtain credit in the same way, and the proctor employed by the wife becomes the creditor of the husband.

I do not think it material to decide, if I could, nor to consider, whether in all cases of costs, such as that before me, the rule and practice of the Courts of ecclesiastical jurisdiction afford the wife and the proctor, or either of them, a sufficient remedy and a complete protection-whether in every case where reason and justice require that either of them should be assisted against the husband, and that assistance can be obtained, although the Ecclesiastical Court would interfere, the proceedings at common law, including the forms of execution which the law gives in actions, may not be substantially more convenient and advantageous than the process of order and monition of the Ecclesiastical Judge. I am not aware of any objection, upon principle or authority, which goes to shew that the remedies in each jurisdiction may not simultaneously exist in such cases. There may be possibly

an objection to the simultaneous use of such remedies, or to resorting to one after having resorted to the others. No such thing has occurred, as I conceive, in the present instance. I cannot view in that light steps taken, after the commission, by a bankrupt who has not applied for a certificate as to costs; nor again can it in my judgment be a sufficient answer to an action by a proctor against the husband to say that the case is one in which the Ecclesiastical Judge had refused, or would, on account of the wife having separate property, or otherwise, have refused to interfere against him. The common law right to sue a man for the value of necessaries furnished to his wife, or for a cause of action tantamount to it, cannot, I apprehend, be affected by the question. whether the Consistorial Court would or would not have given, or could or could not give to the plaintiff a remedy and redress according to its forms.

It is argu

able, certainly, that there may be inconvenience in allowing actions to be brought from time to time by a proctor for his costs pending an adverse suit: that may be so, although the Ecclesiastical Court sometimes, indeed very often, I believe, makes the husband pay the costs of the wife step by step, or, as they say there, "de die in diem." I do not, however, know that there can substantially be a greater difficulty or inconvenience belonging to such a case than to the ordinary case of attorney and client as to costs. In this instance the husband's bankruptcy happened pending the suit, but nothing can be more common than that a party to an action should become bankrupt pending the litigation. His attorney, under such circumstances, at least if not guilty of neglect or misconduct, before or afterwards, is surely entitled to prove under the bankruptcy for his costs incurred by the client before the bankruptcy, whether the cause do or do not proceed, or however it may have been proceeded with. No neglect, no collusion, no misconduct, no litigiousness, no vexation has been imputed to the proctor in the present instance. The suit has been ended since the bankruptcy, as far as it sought to criminate the wife, and ended by what is, I suppose, analogous to a nonsuit at law in her favour. But put the case of a defendant in an action becoming bankrupt, but not pleading or suggesting his bankruptcy, the action going

I

on, the plaintiff nonsuited, and being a beggar; is the successful defendant's attorney not to prove for the costs up to the bankruptcy against the estate of his client? I am quite aware that in the present instance the husband is not the client of his wife's proctor; but, for the reasons to which I have referred, I see no difference between the two cases; for, setting bankruptcy out of view, an attorney or solicitor, though abandoning his client's cause during its progress, may, under certain circumstances, lose his right to demand the previous costs against the client; yet, not abandoning the cause, not ceasing to act, he may during its progress, I suppose, from time to time demand from the client, and sue the client for payment of his costs incurred for the time being; at least, if this be not done in a vexatious or unreasonable manner. I am not aware of either authority or principle against the measure. find the Lord Chief Justice of the Common Pleas in a case (1), in the year 1832, saying thus:-"The objection, however, which has been raised to the plaintiffs' recovery, is, that an attorney cannot sue for his bill till the business which he has been retained in is terminated. It would be long before I should be induced to assent to such a proposition. Suppose the employer to become insolvent while the attorney is engaged in a long and difficult suit, it would be hard if he could not recede-resile-from such an engagement.' There is another report of the same case (2), in which the Lord Chief Justice is represented as saying, "The main objection to the plaintiff's right to recover, and the question for our consideration is, whether an attorney can bring an action against his client for business done, during the progress of a cause, or whether he must wait till the suit has arrived at a final determination, viz. by a judgment at law, or a decree in equity, before he can sue. I should require a strong authority before I acceded to such a proposition; for, if an attorney or solicitor is bound to wait till the final determination of the suit, he might, in many cases, be ruined." And Mr. Justice Bosanquet is mentioned as stating "That he could not agree to the extent of the proposition contended for by the defendant, that

(1) Van Sandau v. Browne, 9 Bing. 402, 407; s. c. 2 Law J. Rep. (N.s.) C.P. 34. (2) 2 Moo. & Sco. 543, 556.

an attorney cannot sue his client for business done till the final termination of the suit" (3).

I may also add, that if proof of the wife's adultery in an action by the proctor against the husband for her costs of defence to his suit, against her, would defeat the action (a point as to which I say nothing), if that would be inconvenient, such an inconvenience is not of a new kind; it being clear that a husband suing for a divorce may at the same time be a defendant in an action, or in various actions by various plaintiffs, for articles supplied to the wife, who may ultimately be proved to be and be treated as an adulteress.

How the matter would have stood if the wife had been guilty, had the suit for a divorce been still in progress, or had she been the party suing, and not the party sued, in proceedings existing before the bankruptcy, it is unnecessary to say. Upon the facts of this case, I think the proctor is entitled to prove, and I so decide.

The point being of some importance, and specifically so far as I am aware, new, I had doubts whether I ought to allow the proof; especially against the opinion of the learned Commissioner, without affording the assignees an opportunity of trying the question, in an action which might probably be so framed as to try it satisfactorily; but, considering the amount of the sum in dispute, and that they may probably obtain the opinion of the Lord Chancellor, if they appeal speedily from my decision, before the long vacation, I have thought it better for the present to act upon my own opinion, and to express it without further delay. In what I have said I have assumed that the amount of the bill is considered by the assignees as reasonable and fair, and that there is not any dispute as to what charges are anterior and what subsequent to the bankruptcy. If there is any difference between the parties upon these points, or either of them, I will decide it myself, or put it in the course of investigation. Let the costs of the petition on each side come out of the estate.

The counsel on both sides agreed that there was but one question between them, which arose under these circumstances. A commission had issued for the purpose of (3) 2 Moo. & Sco. 560.

Fiat, Annulling-Payment of Fees under 1 & 2 Will. 4. c. 56.

A. was made a bankrupt, and creditors' assignees were appointed. The fees required to be paid under 1 & 2 Will. 4. c. 56. were not paid, and the official assignee had no assets. An application by the bankrupt, under these circumstances, to have the fiat annulled, in which the creditors concurred, was granted.

In this bankruptcy there had been a choice of assignees, but there were no assets. The bankrupt applied to have the fiat against him annulled, and all his creditors concurred in the application. The fees required by ss. 46. and 55. of 1 & 2 Will. 4. c. 56. not having been paid, the commissioner declined to accede to the application on that ground.

The bankrupt now presented a petition to the Court that the fiat against him might be annulled, notwithstanding these fees had not been paid.

Mr. Rolt, for the petition, cited Exparte Green (1).

SIR J. L. KNIGHT BRUCE said he should follow that case, and made the order.

(1) 1 Mont. D. & D. 174; s. c. 9 Law J. Rep. (N.s.) Bankr. 29.

1845. March 17.

} Ex parte MILLER in re MILLER.

the choice of assignees within the 55th section, and that the two sums of 17. and 17. were not payable in respect of these meet

Fiat annulled in a bankruptcy in which there had not been any choice of creditors' assignees, although the fees of 10l. and 201. required by the 1 & 2 Will. 4. c. 56. had not been paid.

Meetings for the purpose of choosing assignees, although no assignees may be chosen, are meetings "for the choice of assignees" within the meaning of the 1 & 2 Will. 4. c. 56.

This was the petition of the bankrupt, with the concurrence of his creditors, to annul the fiat.

The adjudication had taken place on the 31st of January. On the 18th of February there was a meeting for the choice of creditors' assignees, but no choice was made. The meeting was adjourned to the 26th of February for the same purpose, but no choice was then made. No choice had subsequently been made.

The official assignee had, for some time after the bankruptcy, carried on the bankrupt's business, and the messenger in possession had in hand 281.

The fees of 101. and 207. required by the 1 & 2 Will. 4. c. 56. ss. 46. and 55. had not been paid.

By the 1 & 2 Will. 4. c. 56. s. 55. it is enacted, "that there shall be paid by each official assignee for every sitting of the said Court of Bankruptcy, or of any division, Judge, or commissioner thereof, other than the sitting at which any person may be adjudged a bankrupt, or any sitting for the choice of assignees, &c. the sum of 17."

There had not been paid anything in respect of these two meetings.

Mr. Bird, for the petition.
Mr. Rolt, for the official assignee.

Sir J. L. KNIGHT BRUCE said he thought the 107. and 201. did not become due until the choice of creditors' assignees, and were not payable in this case. He thought the meetings for the purpose of choosing creditors' assignees, although no creditors' assignees were appointed, were meetings for NEW SERIES, XIV.-BANKR.

Friendly Societies-4 & 5 Will. 4. c. 40.

By the rules of a friendly society, the affairs of the society were to be under the management of a treasurer, secretary, and a committee; and a power was given to any general meeting to remove or appoint the bankers of the society. Messrs. C. & Co., who were appointed bankers of the society, had in their hands, at the time of their bankruptcy, a sum of money belonging to the society-Held, that Messrs. C. & Co. were not officers" of the society, within the meaning of the 4 & 5 Will. 4. c. 40, and that the society had no right to be paid in full out of the estate of the bankrupt.

66

A friendly society was established at Leicester, under the title of "The Widow and Orphan's Friendly Society."

The rules of the society which had any bearing on the question raised by the petition presented in this case were as follows: The society was to be under the direction of a treasurer, secretary, and a committee. If the treasurer should hold in his hands 107. and upwards belonging to the society, and if he should be ordered by a resolution of the society to give it up, and he should refuse so to do, he should be excluded from the society. Messrs. Babington & Co. were to be the bankers of the society, and there was a power for any general meeting to remove them and appoint others. The monies of the society, not required for the immediate purposes of the society, were to

E