receive the debt. The agreement, if not varied by the order, would have bound the assignees, but it was materially varied, and the assignees only assented to the order on the terms of the questions of set-off being left open. Mr. Baggallay (Mr. F. Webb with him), for the residuary legatees of Mrs. Bousfield. In Cherry v. Boultbee, the bankruptcy took place before the death of the testator, so that at his death he had nothing but a right to prove, and that was all which passed to his executors, not a right to receive the debt. Here Mrs. Bousfield had an equitable title to the debt, the statements of the case showing that Mr. Knott's estate, omitting this debt, was sufficient to leave a clear residue. [He was here stopped by the Court.] Mr. Swanston, in reply. * THE LORD JUSTICE KNIGHT BRUCE. - Independently of the agreement and order, and on the assumption that the agreement and order ought to be viewed and treated as Mr. Hobhouse and *464 Mr. Swanston say they ought, I am of opinion that the claim of the assignees is groundless. The other facts stated in the special case appear to me to establish the proposition that the testatrix had become in her lifetime the owner in equity of the debt in question for her own use. It was due from one of her residuary legatees, who has since her death become bankrupt, and he now by his assignees (who can claim by no better title than he if not bankrupt could have done) seeks to retain that portion of the assets and receive the same share of the residue as if no debt had been owing from him. I am of opinion that there is no principle nor authority for such a contention; and, therefore, not on the recital in the agreement nor on the order, but on the merits of the case, independently of the agreement and the order, it appears to me, I repeat, that the claim of the assignees is wholly unfounded. THE LORD JUSTICE TURNER. I think that upon the statements of the special case it must be taken to have been known and ascertained before the bankruptcy of Walter Stanton Bousfield that there was a clear residue of William Knott's estate exclusive of the 14007. Assuming this to have been known and admitted, I feel no doubt that there was a right of set-off or retainer, by what ever name it ought to be called, a right in effect on the part of Mrs. Bousfield's executors to deduct the 14007. from the share of her estate to which Walter Stanton Bousfield became entitled. therefore concur in the conclusion of my learned brother. I * In the Matter of the Estate of THOMAS WOOD, deceased. * 465 DAVIDSON v. WOOD. 1863. June 4. Before the LORDS JUSTICES. Proof allowed against the estate of a testator for money advanced to his wife during his lunacy, and applied by her in payment of her necessary expenses, though she had a separate income. THIS was a motion by the executors of Thomas Wood, the testator in the cause, by way of appeal from an order of Vice-Chancellor Wood, admitting a proof for sums supplied to the testator's wife during his lunacy. The testator on the 8th of September, 1859, was placed in a lunatic asylum. He had previously retired from business on account of the failure of his health; he had an income of about 1207. a year, and his wife had a separate income of about 1077. under the will of her first husband. In February, 1860, the testator was found lunatic by inquisition, the lunacy being found to date. from the 1st of August, 1858. On the occasion of his being removed to the asylum, his wife took a house in the immediate neighbourhood, and removed to it the furniture of the house in which she and her husband had resided. The expenses of the removal, including the expense of taking her husband to the asylum and a medical fee, amounted to 20l. 6s. 6d. The Lords Justices appointed her the committee of the person of the lunatic, and his own income was expended upon himself. There being for a time some hindrance in the way of her obtaining payment of her separate income, she borrowed from Mr. Hardwick different sums amounting altogether to 1351., which were advanced to her as follows: 7th of September, 1859, 107.; 12th of October, 201.; 19th of October, 501.; 17th of January, 1860, 357.; 21st of May, 157.; 2d of October, 5l. These sums were applied by Mrs. Wood * 466 in payment of the above 201. 68. 6d., * and for the maintenance of herself and her domestic establishment. tic died on the 9th of November, 1861. The luna This suit having been instituted by summons for the administration of the lunatic's estate, Mr. Hardwick took in a claim for this 1357., which was opposed by the executors, and the case having been adjourned into Court, Vice-Chancellor WooD decided that the proof ought to be admitted. The executors appealed. Mr. Caldecott, for the appeal motion. The respondent's claim is made on the authority of Jenner v. Morris, (a) a decision, the authority of which I do not dispute, but I contend that it does not rule the present case. The question here is, whether a wife living separate from her husband, and having a separate income sufficient for her support, is entitled to pledge her husband's credit. The authority of a wife to pledge her husband's credit arises from the contract of marriage, but is not co-extensive with it; the question is one of agency, and the separate income must be taken into consideration in determining whether such an agency exists. Clifford v. Laton, (b) Liddlow v. Wilmot, (c) Dixon v. Hurrell, (d) Johnson v. Sumner. (e) [THE LORD JUSTICE TURNER.Where there is a separation by mutual consent, may it not be inferred that there is an understanding that the wife shall live on her separate income?] [THE LORD JUSTICE KNIGHT BRUCE. - Ought it, for any purpose material on the present occasion, to be considered that there was here any separation?] * Read v. Legard (g) shows that such a separation as * 467 existed here is to be regarded as a separation by consent. In Johnson v. Sumner the rule is laid down that the Court will look to all the circumstances to see whether the wife is constituted the husband's agent for the purpose of binding him by ordering necessaries. An application ought to have been made in proper time in the lunacy. (a) 2 De G., F. & J. 45. (d) 8 Car. & P. 717. (g) 6 Exch. 636. Mr. Marten, for the respondent, was not called upon. THE LORD JUSTICE KNIGHT Bruce. On the cases at common law which have been cited I do not give any opinion. The amount of the income here on each side makes it, in my judgment, wholly unnecessary to do so. The husband and wife had between them an income amounting to less than 250l. per annum. The husband became lunatic; his own income was wholly applied for his benefit, and his wife was supplied with these small sums, which were applied in payment of her necessary expenses. The decision of the Vice-Chancellor appears to me clearly right; the appeal, in my judgment, is frivolous, and if the Lord Justice agrees, should be dismissed with costs. THE LORD JUSTICE TURNER. I entirely agree. *NOEL v. NOEL. 1863. June 4. Before the LORDS JUSTICES. * 468 Where a case is made out, raising a reasonable suspicion that a defendant who has made an affidavit as to documents has in his possession other documents relating to the matters in question and not disclosed by the first affidavit, the Court may order him to make a further affidavit, although the first is sufficient in point of form.1 A defendant who had filed an affidavit as to documents was ordered to file a further affidavit. After this order had been made, but before any further affidavit had been filed, he applied for an affidavit as to documents in the possession of the plaintiffs, the time for excepting to his answer having expired, and the plaintiffs were ordered to make such affidavit. Semble, that this order was correct. THIS was a motion by the defendant to discharge an order of Vice-Chancellor STUART, directing him to make a further affidavit as to documents in his possession. The bill was filed on the 11th of December, 1862, and on the 15th of January, 1863, the common order was made for the 1 See Wright v. Pitt, L. R. 3 Ch. Ap. 809; 2 Dan. Ch. Pr. (4th Am. ed.) 1823, 1824, and cases in note (2). defendant to file an affidavit as to documents in his possession "relating to the matters in question in this cause." On the 16th of February, the defendant filed an affidavit admitting the possession of the documents mentioned in the schedule thereto, and objecting to the production of those in the second part of the schedule on the ground of privilege. The affidavit concluded with a general traverse, "according to the best of my knowledge, remembrance, information, and belief I have not now and never have had in my own possession, custody, or power, or in the possession, custody, or power of my solicitors or agents, or solicitor or agent, or in the possession, custody, or power of any other persons or person on my behalf, any deed, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract from any such document or any other document whatsoever relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to * 469 such matters or any of them other than and except the documents set forth in the said schedule hereto." The answer of the defendant, which was filed on the 23d of February, 1863, contained statements as to the defendant having taken a lease of a public-house and underlet it to one William Winson (the relations between whom and the defendant formed part of the case made by the bill), and as to his having subsequently proposed to grant Winson a lease of a farm. The defendant by his answer stated that he believed that some letters had passed between him and a Mr. Simpson with reference to such lease, but that he could not set forth as to his belief or otherwise the dates or contents of any of the letters. No documents relating to these transactions were mentioned in the schedule to the affidavit. The plaintiffs took out a summons in Chambers returnable on the 17th of March, calling on the defendant for a further affidavit as to documents. This summons was adjourned into Court, and on the 16th of April, 1863, an order was made as follows: "The Court being of opinion that the said affidavit is insufficient, and the defendant by his counsel now applying for further time to file a full and sufficient affidavit, this Court doth order, that the defendant do within one fortnight after service of this order file a full and sufficient affidavit, pursuant to the order dated the 15th day of January, 1863, stating whether he has or |