[contract – marriage, separation – married women’s legal disabilities, husband’s liability for wife’s debts – judicial disagreement]

In re Ives v. Mitchall

Supreme Court of Van Diemen’s Land, In Banco

Pedder C.J. Montagu J., 22 February 1842

Source: Hobart Town Advertiser, 25 February 1842

Sitting in Banco

            In Re Ives v Mitchall - The Attorney General showed cause against a conditional rule obtained by Mr. McDowell for setting aside the verdict of the defendant, and for a new trial. This was action tried at Launceston, and was for goods supplied to Mrs. Mitchall by the plaintiff while she was living apart from her husband. The learned counsel argued at some length against the rule, contending that the plaintiff in order to recover ought to have shown that the wife had not been separated from her husband. He cited a case tried before Lord Ellenborough, where that learned judge observed that he doubted whether a tradesman could recover any verdict for goods supplied to a married woman, unless he make due enquiry as to whether she is living with her husband or not; and if not, why she is separated. The learned counsel referred to several cases in support of his argument, and concluded by hoping that their honors would be slow in granting a new trial, as the expenses already incurred were very great.

            Mr. Macdowell argued in support of the rule, contending as the husband (Mitchall) had possession of the goods supplied to his wife, he was a consenting party to the contract, and was bound by it, in fact recognised it by refusing to give up the goods to the plaintiff.

Pedder C.J. Montagu J., 4 March 1842

Source: Hobart Town Advertiser, 8 March 1842

            In Re Ives v Mitchall. - Their Honors gave judgment in this case. The Chief Justice deciding in favour of a new trial, on the grounds chiefly, that it ought to have been put to the jury whether the defendant had not acknowledged the contract by refusing to give up the goods.

            Mr. Justice Montagu said he regretted to differ from his Honor the Chief Justice. His Honor entered at considerable length into his reasons for so deciding, and quoted several cases, from a judgment of Lord Hyde, and a decision of Lord Abinger, the present Chief Baron. His Honor occupied some time in delivering his judgment, which was extremely elaborate and explicit. As their Honors differ the case remains as it is, with a verdict for the defendant.

Pedder C.J. Montagu J., 4 March 1842

Source: Launceston Examiner, 12 March 1842

            In this case the Chief Justice said he very much regretted that the Court had not agreed. It was however his duty to state his reasons for thinking that the rule for a new trial should be made absolute. Having stated the nature of the action, his Honor proceeded to observe that it was not his intention to review the whole of the law, as cited at the bar. He would admit, at the outset, that where credit was originally given to a married woman living apart from her husband, it was the duty of the husband - the onus was upon him - to shew under what circumstances that credit was given to the wife. He admitted also that the husband cannot be said in law to be a contracting party, unless his assent be given to the contract, or that it can from his conduct be implied. In this case, however, it did not appear under what circumstances the wife had separated from the husband; and had the case stopped there (continued his Honor), I think the defendant should have been non-suited. It appears, however, according to his Honor’s note of the evidence, that the wife had subsequently returned to the husband, and that the goods originally furnished to her had been removed to the husband’s house.

            Mr. Justice Montagu. - Not that they were removed to the house that he had obtained possession of.

            Chief Justice. - Well, that they had come into the possession of the husband did appear, and it further appeared, that upon being applied to by the plaintiff to deliver up the goods, he refused to do so, saying that that rascal Ives had charged him too much, and that he would keep them. Now, without going into the question of whether or not the user of goods made a party liable, I think there was evidence to go to the jury, as to whether such conduct and admission on the part of the defendant did not amount to an adoption of the contract on his part. It should, I think, have been left to them to consider whether or not the defendant had it in his power to deliver up the goods; and whether his objection to do so on the ground that Ives had charged him more than they were fairly worth, should exempt him from that lability. For these reasons, I am of opinion that the rule for a new trial ought to be made absolute.

            Mr. Justice Montagu said, he differed in opinion from the Chief Justice, for he could not, after much enquiry and patient research, see the case in the way which his Honor viewed it. He had, on the return of the jury, asked them if they thought the subsequent refusal of Muchall to pay for the goods, although he had acquired possession of them, was a circumstance from which they could imply his priority to the contract between the plaintiff and his wife, and they found in the negative, and his Honor thought he ought to have gone further, and asked the jury, if by such conduct they did not think the defendant had adopted her contract, but he was quite satisfied that even had he done so, the verdict must have been the same way, and therefore he saw nog rounds for disturbing it.

Pedder C.J. Montagu J., 4 March 1842

Source: The Cornwall Chronicle, 19 March 1842

            Their Honors delivered their opinion in this case.

            The Chief Justice was very sorry that the Court had not agreed in their opinion in this case; and after briefly reciting the points, his Honor proceeded to state that he would admit generally, that when a wife lived apart from her husband, he was not liable for all the debts she might contract, unless his assent was given, before or after the goods were taken up; there were cases where a distinction was made, and some in which where a wife was living with her husband, he was not necessarily liable. It was for the plaintiff to make out the circumstances under which he ought to recover, and his Honor thought the rule for a new trial ought to be made absolute, as it ought to have been put to the jury whether the defendant had not acknowledged the contract by refusing to give up the goods.

            Mr. Justice Montagu regretted that he could not assent to the opinion of the Chief Justice; if having had the advantage of bearing his Honor’s observations, his opinion had been changed it would be more creditable to him at once to acknowledge it; but he was not convinced that this was a proper case to go a second time to a jury. His Honor explained his reasons for this opinion at great length, and with most elaborate pains, citing numerous cases from a decision of Lords Hyde and Hall, to the recent judgment of the present Chief Baron Abinger, all bearing upon the point, that a husband is not liable for the debts of his wife when separated, and in no cases when not separated, unless he is a consenting party to the contract. In the present instance there was nothing in the defendant’s words to imply an assent to, or an adoption of the contract. There was, in point of fact, a gift of the goods to the wife, when afterwards became reconciled to her husband, into whose possession the goods, by some means, but how did not appear, found their way. There was another feature in the case, which was against the rule. In the absence of any express contract, a husband was not liable for money lent or laid out for the wife; there was a sum of £2 odd laid out, in the present instance, which, if deducted, would reduce the amount below £20, and the Court would refuse a new trial in such a case. What was the justice, and what the merits of the case? No doubt the counsel engaged knew very well; but His Honor was unable to say; it would depend upon the reason why the wife left her husband, and how the goods came into his possession; but there was nothing to shew this. If the fault lay with the plaintiff, in not bringing his case properly before the jury. His Honor did not think the verdict should be disturbed. Colonial Times, March 8.