(e) 10 A. & E. (37 E. C. L. E) 47. (f) 5 A. & E. (31 E. C. L. R.) 755.
(g) Brown v. Ackroid, 25 L. J. (Q. B.) 193; 5 E. & B. (85 E. C. L. R.) 819, 826; per Lord Campbell, C. J.
(h) Wilson v. Ford, L. R. 3 Ex. 63; 37 L. J. (Ex.) 60. Where it is necessary for the wife to take proceedings under the Divorce Acts, "extra costs," i. e., costs reasonably incurred by the solicitor beyond the costs taxed and allowed as between party and party are recoverable by him from the husband as necessaries: Ottaway v. Hamilton, 3 C. P. D. 393; 47 L. J. (Q. B., etc.) 424, 725.
The wife also may, under some circumstances, Pledge her husband's credit for such necessaries for their children as may be reasonable with reference to the husband's station. Thus in Bazeley v. Forder (i), the plaintiff, on the order of the defendant's wife, supplied clothes for the defendant's child; the wife was living separate from him, for reasons which justified her doing so, and the child, *which was under seven years of age, was living with her, against the defendant's will, an order of the Master of the Rolls having been made, under 2 & 3 Vict., c. 54, giving the wife the custody. The wife had no means adequate to support her according to her husband's degree. It was held, that, as the child was by law properly in the care of the wife, the reasonable expenses of providing for it were part of the reasonable expenses of the wife, for which she had authority to pledge her husband's credit.
The whole of this branch of the law may be shortly summed up thus: while a wife continues to live with her husband, the presumption, except so far as it may be qualified by s. 1, sub-s. 3, of the Married Women's Property Act, 1882, already referred to (ante, p. *487), is that she has authority to bind him by contracting for necessaries; but that presumption is subject to be rebutted. When she is living separately from him, the presumption is that she has no such authority; but that presumption also is subject to be rebutted, by showing that the separation was by consent, or occasioned by the husband's misconduct; in which cases, if he leaves her without adequate funds for her support, she has a right to pledge his credit by contracting for necessaries.
(i) L. R. 3 Q. B. 559; 37 L. J. (Q. B.) 237; in Ex. Ch. 9 B. & S. 725.
I have now gone through the subject which I proposed at the commencement of these lectures, with the exception of the last point. I have made Mention of the different sorts of contracts, the peculiarities of those by record, by writing sealed and delivered, and writing not under seal; of the consideration which a simple contract requires to support it; of the effect of illegality, whether by Common or Statute Law, in invalidating contracts; of the competency of the parties, and of the rules which govern contracts entered into by those parties through the medium of agents.
It remains to point out, in a few words, the remedies by which the observance of contracts may be enforced, and their non-observance punished. The ordinary remedy for breach of contract is by an action claiming damages, and, where damages are an inadequate compensation, claiming specific performance. The latter claim, however, would not be applicable to by far the larger proportion of the contracts considered in these lectures, and it is not intended to pursue the subject of specific performance further (k). These lectures only profess to deal with contracts under their Common Law aspect, as has been already said (ante, p. *98), and specific performance was, before the Judicature Acts, the remedy in Courts of Equity only. There a specific performance might, as you know, in many cases be compelled; there was no such thing as a *specific performance to be had in a Court of law, except in the cases to which the writ of mandamus was applicable, which could, however, never be obtained when there was any other remedy. And although by the provisions of the Common Law Procedure Act, 1854 (17 & 18 Vict, c. 125), ss. 68-74, the remedy of mandamus was extended, yet by the construction put by the Courts of Common Law on those provisions, the compelling specific performance in private contracts could not be said to be within their jurisdiction. For it was held by the Court of Queen's Bench to be quite clear that the statute did not intend to give a Court of Common Law the power to decree specific performance of a private contract; and where the duty sought to be enforced by a mandamus arose merely upon a personal contract, to grant a mandamus would be in effect to decree specific performance of such a contract (I). Where, therefore, the plaintiff agreed to let, and the defendant to take, a certain house upon lease for seven years from a day ensuing, the lease to be prepared at defendant's expense and executed within three months, and thereupon the plaintiff did prepare the lease, but the defendant refused to execute it, upon which the plaintiff sued him, and in his declaration claimed a writ of mandamus according to section 68 of the Common Law Procedure Act, 1854, *the Court held that that Act did not extend to enforce this duty, which arose out of a contract merely personal (m).
(k) For further information as to the principles on which Courts of Equity have decreed specific performance, see Cuddee v. Rutter, 1 White & Tudor's L. C. in Equity, p. 848, 5th ed., and the notes thereto; see also Fry od Specific Performance.
If the contract be by record, the remedy is by writ of scire facias (n), which lies only upon a record, and which has obtained its name from the Latin words it formerly contained, commanding the sheriff to make the defendant know that the Court commanded his appearance to answer why execution should not issue against him.
(l) Norris v. Irish Land Company, 27 L. J. (Q. B.) 115; 8 E. & B. (92 E. C. L. R.) 512.
(m) Benson p. Paul, 25 L. J. (Q. B.) 274; 6 E. & B. (88 E. C. L. R.) 273 s. c