delivered the opinion of the court,
It is very manifest that under the affidavit of defence filed in the court below the defendants had a right to a trial by jury. It was an action against husband'and wife, for necessaries alleged in the affidavit of claim, to have been contracted for by the wife. The defence sworn to by the husband is, that all the goods were sold to him and charged to him on plaintiffs’ books; that the said plaintiffs rendered all their bills to him and never made any claim, until this suit, that they were selling said goods on the credit of the wife. As it is said by our brother Sterrett, in Sawtelle’s Appeal, 3 Norris 310, the Act of 1848 “ enables the wife to bind her separate estate for necessaries obtained for herself and family, but the very essence of the liability is that they are furnished at her request and on her credit. If not so furnished, her separate estate is not liable:" Berger v. Clark, 29 P. F. Smith 340.
Another defence set up in the affidavit is the bankruptcy of the husband. We are asked by the defendants in error to decide whether the wife is thereby discharged from the action. This we decline to decide. The question is a very important one, and this case was put down and argued on the short list, and the defendant has furnished no paper-book. If the plaintiffs fail in giving evidence to prove that the goods were sold to the wife on her credit, that question will not arise. Sufficient unto the day is the evil thereof.
Judgment reversed and procedendo awarded.