held that the deputy sealer of writs in the Court of Chancery is not a person who carries on his business in any definite locality. In like manner, it cannot be considered that a clerk who attends at an office in the city carries on some independent business there, so as to be within the meaning of the Act in question." The case to which the learned Judge refers is that of Rolfe v. Learmouth (a). These authorities cannot be distinguished from the pre

sent case.

Hawkins, in support of the rule.-"Business" is defined in Johnson's Dictionary to mean "employment," and the defendant may clearly be said to carry on his "employment" or business within the district of the Middlesex County Court, according to the meaning of this section of the Act. Buckley v. Hann is distinguishable from the present case; for there the affidavit merely stated that the defendant daily attended at the place in question.

POLLOCK, C. B.-I am of opinion that this rule ought to be discharged. The only substantial question in the case is, whether a person who is a clerk in the Privy Council Office is a person "carrying on his business" within the meaning of this Act of Parliament. I am of opinion that he is not. The term "business" may mean the employment or the occasional occupation of a person; but the term "carrying on business," within the meaning of this Act of Parliament, implies something more than mere service, from which the person may be discharged at a moment's notice. I therefore think that the defendant cannot be said to carry on business within the meaning of the Act.

ALDERSON, B.-I am of the same opinion. The defendant can neither be said to carry on any business nor to

(a) 19 L. J., Q. B., 10.

1850.

SANGSTER

V.

ΚΑΥ.

1850.

SANGSTER

v.

ΚΑΥ.

carry on business at any fixed place. The affidavit is, therefore, not sufficient.

ROLFE, B.-I agree with the rest of the Court in thinking that this defendant did not carry on business within the meaning of the Act. The foreman at a haberdasher's shop could not be said to carry on business there, because he attends to the shop and does what he is employed to do by his master.

Rule discharged.

May 25.

A husband and

wife separated

by agreement

(not under seal),

and at that

time he agreed

to allow her a certain sum

weekly, for her

support, which was paid, and she saved a

certain portion

of her allow

ance and invest

ed it in stock,

but a few days

MESSENGER v. CLARKE.

DEBT for money lent, and on an account stated.—The defendant pleaded never indebted, and upon that plea issue was joined. At the trial, before Pollock, C. B., at the London Sittings after last Easter Term, it appeared that the action was brought by the plaintiff against the brother of his deceased wife, to recover the sum of 74l. 15s., under the following circumstances:-In 1840, the plaintiff and his wife agreed, but without any deed of separation, to live apart, and he was to allow her 10s. a week; but upon an application by letter for a further allowance, the plaintiff acceded to her request, and increased her allowance. The plaintiff and his wife never again lived together. Out of the allowance which had been so made to her, she saved some money, with which she purchased stock, and invested the amount in her maiden name. the 6th of September, 1849, the plaintiff's wife, who was money so given, in a precarious state of health, proceeded to the Bank of England with the defendant, and, having sold out the stock, (according to the defendant's case,) handed over the proceeds to him as a gift. On the 8th of September, she died. The Lord Chief Baron directed the jury, that, under these circumstances, the plaintiff was entitled to re

before her death she sold out the stock,

and disposed of the proceeds by way of gift Held, that the husband was entitled to recover back the

in an action for

money lent,

against the person who received it.

On

cover the money so paid to the defendant. A verdict having accordingly been found for the plaintiff,

Montagu Chambers now moved for a new trial, on the ground of misdirection. As the plaintiff and his wife lived apart, the husband gave her an implied authority to deal as she pleased with the savings which might arise out of her separate maintenance. The wife had a perfect control over the money which the plaintiff seeks to recover in this action, and therefore had the power of disposing of it by gift; and the jury ought so to have been directed in point of law. If this were not so, the husband might maintain an action against a vendee or pawnee for property which the wife had purchased with money advanced to her by the husband, and which property she had afterwards sold or pawned. The rule is thus laid down in Roper's Treatise on Husband and Wife, Vol 2, p. 305, 2nd edit.:-" As the wife may dispose by will of savings from her separate estate limited to her sole use by a stranger, so also she may dispose of savings from her separate maintenance; but if she make no disposition, and her husband be the survivor, he will be entitled to them as her administrator, subject to her separate debts; and during the wife's life, her savings will not be liable to her husband's engagements, if the settlement were made for a valuable consideration." The same rule is to be found in 1 Williams on Executors, p. 639, and Bac. Abr., "Baron and Feme," (D). The case of Gage v. Lister (a) is also in point. It was there held, that a wife who is parted from her husband, and has a separate allowance, may make a gift of her savings as if she were a feme sole, and that the person to whom such gift is made shall not be considered as a trustee for the husband. [Alderson, B.-That was, no doubt, an assign

(a) 1 Bro. Parl. Cas., by Tomlins, p. 4.

1850.

MESSENGER

V.

CLARKE.

1850.

MESSENGER

บ.

CLARKE.

ment for a valuable consideration.] In Nurse v. Craig (a), the husband and wife separated by deed, the husband covenanting to make her a separate allowance; but the husband having neglected to pay her the stipulated allowance, and the covenantee having supplied her with necessaries, it was held that he might maintain an action against the husband for their price; and Sir J. Mansfield, C. J., there said, "The effect is to make the separate provision the separate property of the wife. She may mortgage it. If she save anything, and die, she may dispose of it by will, without the consent of her husband. This has long since been determined in equity." The rule is founded upon the implied authority given to her by the husband that she is to have an absolute and unlimited control over her savings. So in Slanning v. Style (b), it was held that, “if the husband voluntarily allows the wife for her separate use to make profit of all butter, eggs, &c., beyond what are used in the family, out of which she saves 100%., which the husband borrows, and dies, the wife shall come in as a creditor for this sum." The Lord Chancellor there said, "It was the strongest proof of the husband's consent, that the wife should have a separate property in the money arising by these savings, in that he had applied to her, and prevailed with her to lend him this sum, in which case he did not lay claim to it as his own, but submitted to borrow it as her money." In Gore v. Knight (c), a woman who on her marriage had reserved to herself a power to dispose of her personal estate, and the rents and profits of her real estate, made her will, and devised to the plaintiff several securities for money, and her personal estate; and having, amongst other things, disposed of several mortgages, it was objected, that it did not appear that they were any part of the estate over which she had reserved control. The

(a) 2 N. R. 148. (b) 3 P.Wms. 337. (c) 2 Vern. 535.

Lord Keeper said, "It appears not that any other estate came afterwards to the lady, and therefore what she died possessed of is to be taken to be the separate estate, or the produce of it, unless the contrary had been made appear; and as she had a power over the principal, she consequently had it over the produce of it, for the sprout is to savour of the root, and to go the same way." In Fettiplace v. Gorges (a), the Lord Chancellor said, "The first case upon the subject is a very old one in Tothill: that, where a woman from her separate stock has saved a sum of money, she may dispose of it. It does not appear what the word "stock" means. I know there is a vast number of cases upon it; but I have always thought it settled, that, from the moment in which a woman takes personal property to her sole and separate use, from the same moment she has the sole and separate right to dispose of it. It is incident to dispose of the savings out of her personal estate. She certainly might enjoy it; and as to the produce, that is all merely personal property. If she makes no disposition, the husband proceeds as next of kin, not in consequence of the marital right. Upon the cases, I have always taken this ground, that personal property, the moment it can be enjoyed, must be enjoyed with all its incidents." [Alderson, B.-At law, this property is the husband's, although perhaps in equity he may have made himself liable as her trustee. If there had been any evidence that the defendant had given a valuable consideration for this money, the matter would have stood upon a very different footing.] The wife might have disposed of these savings by will; and, having her husband's authority to dispose of her allowance as she might think fit, and having so disposed of it, the husband is not entitled to recover it back by action.

--

ALDERSON, B.-I am of opinion that there ought to be

(a) 1 Ves. jun. 46.

1850.

MESSENGER

v.

CLARKE.