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the time. The husband and wife were "living apart" within the meaning of the 91st sect. of the Act 3 & 4 Will. 4, c. 74. It is not necessary that the separation should be complete; it is sufficient if man and wife abstain from living together, in the ordinary sense of the term. Here it cannot be doubted that the parties were substantially living apart. They did so by mutual consent, and the husband had a consideration for the maintenance of the separation. The marriage of the daughter having taken place on the faith of the order of this Court, very grave inconveniences will ensue if that order is set aside. At all events the parties who are interested under the marriage settlement ought to have been brought before the Court.

Garth in support of the rule.-First as to the point of form. It was not known to Dr. Rogers who the parties to the settlement were; the execution of the deed itself was unknown to him, and, in fact, took place only an hour or two before the order to stay proceedings was made. Then this is not a case within the statute; it is not such a "living apart" as will induce the Court to interfere with conjugal rights. The Act contemplates an entire living apart, and not a state of things where the husband and wife occasionally see one another, sleep together, and take excursions together. It must be such a living apart that the wife cannot consult her husband on the disposition of her property. The context of sect. 91 of stat. 3 & 4 Will. 4, c. 74, shows the kind of separation intended; the other contingencies are, "If a husband shall, in consequence of being a lunatic, idiot, or of unsound mind," or "if his residence shall not be known, or he shall be in prison, or transported, &c."

ERLE, C. J. In this case an order had been made under the

1865.

Re ALICE

ROGERS.

1865.

Re ALICE
ROGERS.

statute giving analogous powers to those under 3 & 4 Will. 4, c. 74, by which in certain cases a wife may dispose of her interest in property without the concurrence of her husband. This Court has power to make the order in several events, and one of these is, where the husband and wife are "living apart" by mutual consent. The order in this case was made on an affidavit by Mrs. Rogers that she and Dr. Rogers were living apart by mutual consent, and it was made ex parte, on the application of the wife, the statute requiring from the wife such evidence only as shall satisfy the Court. Here the order was made so as to confer a title on parties different from the present, viz., on the daughter of the wife by a former marriage, it being thought a greater security to have this order. Under these circumstances we are unwilling to make any alteration in the order unless it be at the request of parties with a legal right to ask it. Dr. Rogers demands his legal right on the ground that Mrs. Rogers deceived the Court in saying that she was living apart from her husband. The husband having married without any arrangement securing to him a portion of his wife's fortune, and unhappy differences having arisen between them, it was agreed that they should live apart on her paying to him 400l. a-year. He refused to sign an agreement on those terms, but he did live separate from his wife, and although the arrangement was that they were to see one another, this was in my opinion an arrangement to live apart on the terms agreed on. To suggest that they were not living apart, because occasionally they paid short visits to one another, there being at the same time an entire absence of mutual affection, is absurd. In my opinion they were living under such circumstances as justified the wife in saying, in her affidavit, that they were living apart. Dr. Rogers appears to be actuated only by mercenary motives; for, even from his own affidavit, it appears that his attempts to renew co

habitation were only made by way of threats to induce his wife to increase his income. In such a state of things and having regard to the important events which have happened, I think that this order must stand. The Court will certainly not strain its power to assist the husband in such a case. Dr. Rogers had no interest in the funds in question, and as he has not shown that he is entitled to have the order rescinded this rule must be discharged.

WILLES, BYLES and KEATING, JJ., concurred.

Rule discharged.

1865.

Re ALICE

ROGERS.

STUBBS v. HORN.

Saturday, November 25th.

creditor.

Trade assignee. 12 & 13 Vict.

c. 106, s. 114.

1. Under stat. 12 & 13 Vict. c. 106, s. 114, which enacts that the petitioning Bankrupt. creditor shall at his own costs file and prosecute his petition until the Messengers' choice of assignees, the petitioning creditor is personally liable to the fees. messenger of the Court of Bankruptcy for his fees and expenses incurred Petitioning in taking possession of the bankrupts' estate up to that period. 2. After the choice of assignees the trade assignee is liable for the messenger's subsequent costs and expenses, if there is anything to show that the messenger has acted under his express directions or from which an express employment by him may be legitimately inferred. 3. In an action by a messenger for an amount comprehending fees and charges incurred both before and after the choice of assignees, it appeared that the defendant, who was petitioning creditor, had instructed the Plaintiff to take possession of certain effects of the bankrupts; that he subsequently became trade assignee, and by letters addressed to the Plaintiff by his the Defendant's solicitors gave express directions to the Plaintiff in relation to the management of the estate. Held, that the Defendant was liable for the whole amount claimed.

HIS was an action for fees brought by a messenger in

THIS

the Court of Bankruptcy against the Defendant, who was the petitioning creditor and also trade assignee.

The declaration in the action, which was brought in the Lord Mayor's Court, contained the ordinary count sur

1865.

Re ALICE
ROGERS.

statute giving analogous powers to those under 3 & 4 Will. 4, c. 74, by which in certain cases a wife may dispose of her interest in property without the concurrence of her husband. This Court has power to make the order in several events, and one of these is, where the husband and wife are "living apart" by mutual consent. The order in this case was made on an affidavit by Mrs. Rogers that she and Dr. Rogers were living apart by mutual consent, and it was made ex parte, on the application of the wife, the statute requiring from the wife such evidence only as shall satisfy the Court. Here the order was made so as to confer a title on parties different from the present, viz., on the daughter of the wife by a former marriage, it being thought a greater security to have this order. Under these circumstances we are unwilling to make any alteration in the order unless it be at the request of parties with a legal right to ask it. Dr. Rogers demands his legal right on the ground that Mrs. Rogers deceived the Court in saying that she was living apart from her husband. The husband having married without any arrangement securing to him a portion of his wife's fortune, and unhappy differences having arisen between them, it was agreed that they should live apart on her paying to him 400l. a-year. He refused to sign an agreement on those terms, but he did live separate from his wife, and although the arrangement was that they were to see one another, this was in my opinion an arrangement to live apart on the terms agreed on. To suggest that they were not living apart, because occasionally they paid short visits to one another, there being at the same time an entire absence of mutual affection, is absurd. In my opinion they were living under such circumstances as justified the wife in saying, in her affidavit, that they were living apart. Dr. Rogers appears to be actuated only by mercenary motives; for, even from his own affidavit, it appears that his attempts to renew co

habitation were only made by way of threats to induce his wife to increase his income. In such a state of things and having regard to the important events which have happened, I think that this order must stand. The Court will certainly not strain its power to assist the husband in such a case. Dr. Rogers had no interest in the funds in question, and as he has not shown that he is entitled to have the order rescinded this rule must be discharged.

WILLES, BYLES and KEATING, JJ., concurred.

Rule discharged.

1865.

Re ALICE

ROGERS.

STUBBS v. HORN.

Saturday, November 25th.

1. Under stat. 12 & 13 Vict. c. 106, s. 114, which enacts that the petitioning Bankrupt. creditor shall at his own costs file and prosecute his petition until the Messengers' choice of assignees, the petitioning creditor is personally liable to the fees. messenger of the Court of Bankruptcy for his fees and expenses incurred Petitioning in taking possession of the bankrupts' estate up to that period. 2. After the choice of assignees the trade assignee is liable for the mes- Trade assignee. senger's subsequent costs and expenses, if there is anything to show 12 & 13 Vict. that the messenger has acted under his express directions or from which an express employment by him may be legitimately inferred.

3. In an action by a messenger for an amount comprehending fees and charges incurred both before and after the choice of assignees, it appeared that the defendant, who was petitioning creditor, had instructed the Plaintiff to take possession of certain effects of the bankrupts; that he subsequently became trade assignee, and by letters addressed to the Plaintiff by his the Defendant's solicitors gave express directions to the Plaintiff in relation to the management of the estate. Held, that the Defendant was liable for the whole amount claimed.

THIS
HIS was an action for fees brought by a messenger in

the Court of Bankruptcy against the Defendant, who was the petitioning creditor and also trade assignee.

The declaration in the action, which was brought in the Lord Mayor's Court, contained the ordinary count sur

creditor.

c. 106, s. 114.

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