he provides her with necessaries, the husband is not bound by the contracts of the wife, except where there is reasonable evidence that the wife has made the contract with his consent.(d) But his assent cannot be presumed where he has previously warned the tradesman or the servant employed in his trade not to trust the wife. (e) Where a husband, not separated from his wife, makes an allowance to her for the supply of herself and her family with necessaries during his temporary absence, and a tradesman having express notice of that fact supplies the wife with goods, the husband is not liable to pay for them.(f) The general liability of the husband is repelled by circumstances showing that credit was given to her, and it is a question of fact whether a tradesman, who furnishes goods to a wife, gives credit to her or her husband.(g) A wife has no authority to borrow money to lay out for necessaries. (h) If the wife purchases necessaries, and without the authority of the husband borrows money to pay for them, the hus [ *642 ] band will not be liable at law for the payment of the money.(i) But an action for money lent to the wife, at the request of the husband, may be maintained.(j) A person who lent the wife money, to pay the doctor's bill for curing her of a foul disease given to her by her husband, was held entitled as standing in the doctor's place to recover in equity the sum advanced against the husband's estate after his death.(k) If a man permit a woman, living in his house as part of his family, but to whom he is not married, to use his name and pass for his wife, and in that character to contract debts, he is liable to the tradesman who furnishes her with goods, whether he knew the circumstances under which they were living or not.(7) So a man is liable for the necessaries of a woman whom he holds out to the world as his wife, although in fact his former wife was living, for he cannot set up bigamy as a bar to the action.(m) The implied authority to bind the man, either in the case of a wife or mistress, ceases with his death, although he was abroad.(n) Husband's Liability after Separation by Mutual Consent.]—If a husband and wife separate by mutual consent, the husband is liable for the reasonable maintenance of his wife, unless she has a competent provision either from the husband or from some fund of her own; and if she has such provision, it lies on the husband to show it.(o) The separate allowance agreed to be made by the husband must be actually paid, in order to exempt the husband from his liability. By a deed of separation between the husband of the first part, his wife of the second part, and the wife's sister of the third part, the husband covenanted with the trustee to pay the wife during the separation a (d) Montague v. Benedict, 3 B. & C. 631; Seaton v. Benedict, 5 Bing. 28; Filmer v. Lynn, 4 Nev. & M. 559; I Harr. & Woll. 59. (e) Etherington v. Parrott, 1 Salk. 118. (f) Holt v. Brien, 4 B. & Ald. 252. (g) Bentley v. Griffin, 5 Taunt. 356; Metcalfe v. Shaw, 3 Camp. 22. See post, 645, 646. (h) Earle v. Peale, 1 Salk. 387. (i) Stone v. Macnair, 1 Moore, 126; 7 Taunt. 432; 4 Price, 48. (j) Stephenson v. Hardy, 3 Wils. 38; Bl. R. 872; Stonehouse v. Bodvil, Sir T. Raym. 67. (k) Harris v. Lee, 1 P. Wms. 482. weekly allowance, which she agreed to accept in full satisfaction of her maintenance, provided that if the husband should pay any debt, which his wife, during the separation and payment of the annuity, should contract, it should be lawful for him to withhold payment of the weekly *allowance until he should be reimbursed; the wife, upon the separation, went to live with the trus[ *643 ] tee, who supplied her with necessaries; the husband having failed to pay the weekly allowance, it was held by three judges that the trustee could maintain an action of assumpsit against the husband for the amount of the necessaries, although the trustee had another remedy by action on the deed. The principle of this decision was thus stated by Heath, J. "It is the duty of the husband to provide necessaries for the wife. The question is, whether he discharges that duty by merely entering into a covenant for payment of an allowance? If he refuse to perform that covenant, the wife may be starved before redress can be obtained. The common law does not relieve any man from an obligation on the mere ground of an agreement to do something else in the place, unless that agreement be performed." Sir J. Mansfield, C. J. expressed an elaborate opinion to the contrary, observing, that a general provision for the separate maintenance of the wife, whether the husband paid it or not, deprived the wife of the advantage of the common law, and prevented the husband from being sued either in assumpsit or debt for necessaries furnished to his wife.(p) The defendant's liability depends upon the sufficiency of the allowance made to his wife. If that allowance be sufficient, and be regularly paid, the husband is discharged from liability, although the allowance was not settled by deed or writing.(q) But where the husband's defence is a separate maintenance, the wife's receipts are not evidence that the allowance has been paid.(r) Where, on the separation of husband and wife, the husband by deed absolutely transfers to trustees for the wife certain personal property, no longer to be liable to his interference, in an action against the husband for a debt subsequently contracted by the wife, the defendant must show that the trustees gave effect to the deed by taking possession of the property; for if the trustees did not perform their trust and pay the allowance, the wife was left destitute.(s) The husband is liable, although he make a sufficient allowance on an express promise to [ *644 ] pay a debt incurred by his wife.(4) If a married woman be living separate and apart from her husband, it is the duty of tradesmen to inquire under what circumstances the separation took place, before they part with their goods; and if a tradesman do part with his goods to a woman living apart from her husband, the onus lies on him to prove that the separation took place under such circumstances as will entitle him to recover the price of such goods against the husband.(u) In a case where the goods appeared to be ordered by and delivered to the wife of the defendant, (p) Nurse v. Craig, 2 Bos. & P. N. R. 156. (q) Hodgkinson v. Fletcher, 4 Camp. 70. (r) Ibid. (s) Barrett v. Booty, 8 Taunt. 343. SEPTEMBER, 1841.—2 H (t) Hornbuckle v. Hornbury, 2 Stark. 177; Harrison v. Hall, 1 M. & Rob. 185. (u) Clifford v. Laton, 3 Carr. & P. 15; 1 M. & M. 101. who was at the time living separate from her husband, no evidence was given of the circumstances or cause of the separation; Lord Tenterden, C. J. nonsuited the plaintiff, and said, when the wife is not living with her husband, there is no presumption that she has autho rity to bind him even for necessaries suitable to her degree in life; it is for the plaintiff to show that under the circumstances of the separation, or from the conduct of the husband, she had such authority.(v) When the husband makes a sufficient allowance, the husband is discharged from his liability, without notice of it to the tradesman. In an action for goods supplied to the defendant's wife, who was living separate from him, it appeared that the goods were supplied without the knowledge of the defendant, and evidence was given with a view of showing that the defendant had made an adequate allowance to his wife, and given notice to persons not to trust her. The jury found for the defendant. On a motion for a new trial, on the ground (amongst others) that the notice not to trust the wife had not been proved to have been given to the plaintiff, Alderson, B. said the question does not turn on want of notice, but on the agency of the wife. Did the wife contract the debt by the authority of her husband? If the husband leaves the wife without support, the law says that he gives her authority, within reasonable limits, to pledge his credit for things necessary to her support. If he makes her a reasonable allowance, [ *645 ] she has no authority to contract debts in his name at all. But that the plaintiff had notice of the reasonable allowance is immaterial. He trusts a married woman at his own risk.(w) A mere notice by the husband that he will not pay for goods supplied to his wife will not avail him, if, under the circumstances of the separation, he is liable; but if the husband and wife both deal with the same tradesman, and the latter agree with the husband not to charge him for goods to be supplied to the wife, the tradesman cannot afterwards charge the husband for such goods.(x) When the husband and wife have separated and live apart from each other, in consequence of domestic differences, without any articles of separation, the question is, whether the husband has given his wife sufficient provision for necessaries suitable to her degree; for if he has, he is not liable to her debts even for necessaries. Where the separation took place from some cause which did not imply guilt on either side, but from difference of temper or something of that sort, and the wife had no allowance, except a pension of 50%. a year, it was left to the jury to decide whether the articles supplied were more than were reasonable under the circumstances in which the. parties were placed at the time, because the wife could only bind the husband to the extent of what was reasonable for her to have under the circumstances of both parties.(y) In assumpsit, on an agreement to hire a house, which had been made between the plaintiff and the defendant's wife, and for use and occupation of the premises by the defendant's wife, it appeared that the defendant and his wife were separated, she living in Yorkshire and he in London; but that on one occasion he was in her house about a fortnight, and joined in 18. (v) Mainwaring v. Leslie, 1 Moody & M. (w) Mizen v. Pick, 8 Carr. & P. 373, See Rawlins v Vandyke, 3 Esp. 250. (x) Dixon v. Hurrell, 8 Carr. & P. 717. (y) Emmett v. Norton, 8 Carr. & P. 506. giving a receipt for rent from her lodgers: it was held that, upon the count for use and occupation, the judge ought to have left it to the jury to determine whether the defendant had adopted the contract of his wife.(2) Where a wife had in one single instance bought goods, which were delivered at the lodgings of her mother, without her husband's knowledge, but for which he subsequently paid: [ *646 ] it was held, in an action for other goods, also bought by the wife from the same tradesman, and delivered at the lodgings of the mother, but at a different place, that evidence of the facts was proper to be left to the jury, to show an agency in the wife, and a sanction of her dealings by her husband; and the jury having found for the plaintiff, the court refused to disturb the verdict. (a) In an action of assumpsit on a contract made by the defendant's wife, for the schooling of two daughters of the defendant for a year; at the trial before Rolfe, B., it appeared that the defendant's wife was living separate from him, but her children were allowed to remain with her. There was no proof of a separate maintenance, nor of the circumstances under which the separation took place. The defence was, that the defendant had given notice to the plaintiff, about the end of the first quarter of the year, that the children were not at her school at his expense, and that the plaintiff had subsequently looked to the defendant's wife for payment. The learned judge told the jury the question was, whether there was any authority given by the defendant to his wife to put the children to the plaintiff's school; that they were to look to what the parties did; and that whether the husband or the wife was in the wrong was not the question. The jury found for the defendant. On a motion for a new trial, on the ground of misdirection, Lord Denman, C. J., said, "Upon looking at the notes of the learned judge, we find that there was distinct notice on the part of the husband that he would not be liable for the schooling of his children by the plaintiff; and that the plaintiff after that went looking to the wife for payment." The rule was refused. (b) Liability for Contracts after Separation through Husband's Misconduct.]—If a man, without any justifiable cause, turns away his wife, or if, by the indecency or cruelty of his conduct, she is precluded from living with him,(c) and he does not give her adequate means of subsistence according to his degree in life and his fortune, the law makes her his agent to order such things as are reasonable and necessary for herself.(d) But she is not at liberty to run into [ *647 ] any extravagance, or to pledge his credit for any thing beyond what would be reasonable and necessary for her subsistence.(e) A husband, who has turned his wife out of doors without any justifiable cause, cannot exempt himself from liability to necessaries for her support, furnished while she was living apart from him, by an advertisement in a newspaper cautioning all persons not to trust her, nor by a particular notice to individuals not to give her credit.(f) (z) Barnes v. Jarrett, 2 Jurist, 988. (a) Filmer v. Lynn, 4 Nev. & M. 559; 1 Har. & Woll. 59. (b) Bailey v. Calcott, 4 Jurist, 699. (c) Ante, 437, 438. (d) Atkins v. Curwood, 7 Carr. & P. 760; Lidlow v. Wilmot, 2 Stark. 86. (e) Emmett v. Norton, 8 Carr. & P. 510. (f) Harris v. Morris, 4 Esp. 41; Bolton v. Prentice, 2 Str. 1214; Selw. N. P. 263, 4th ed. Husband's Liability where the Wife has eloped or been guilty of Adultery.]-The ground of a husband's liability in an action for goods supplied to his wife, is a supposed authority communicated to her by him; but when she improperly leaves him, that authority is determined.(g) A wife, who is separated from her husband on account of her own misconduct, carries with her no implied authority to bind her husband; as where he has turned her away for adultery ;(h) or where she has eloped with an adulterer;(i) or even where her husband, who was himself living in adultery with another woman, turned her out of doors, and she afterwards committed adultery;(k) nor where she elopes without committing adultery.(7) The verdict in an action for criminal conversation being inter alias partes, is not evidence in an action against the husband for necessaries supplied to his wife; but if the husband has informed the tradesman that she is living in adultery, he will not be liable beyond necessaries, although he does not prove the adultery.(m) Where the wife left the husband without his consent, and during the separation, the husband, who did not allow his wife any maintenance, expressly forbad the plaintiff to deliver any goods to his wife, notwithstanding which, the plaintiff sold to the wife silks and velvets, and then brought *an action against the [ *648 ] husband for the value of the goods; it was ultimately decided, after much argument and difference of opinion, that the husband was not chargeable.(n) Where the deed of separation making a provision for the wife is void, and she quits her husband's house against his wishes, and continues to live apart from him, although he is willing and wishes to receive her back and to provide for her in his own house, the husband is not liable for goods furnished to the wife who is so living. (o) It was said that a tradesman, merely on the ground of the existence of a valid deed of separation, cannot sue the husband for goods supplied to the wife, living apart from him without his assent, but that the trustees would be bound to obtain the money from the husband, and pay the wife's debts; and that the only remedy of the plaintiff would be to claim payment out of that fund.(p) Although the husband may be discharged from his obligation to maintain his wife, yet she does not thereby acquire a capacity to make a contract valid against herself.(q) After the husband's death, a wife must be supported by her relations; and it was said that her misconduct in leaving her husband, and committing adultery, would have the same effect.(r) It may be observed that a husband is entitled to the personal property of his wife, which she has acquired by living apart from him in adultery.(s) A woman, living apart from her husband, acquired a (n) Manby v. Scott, 1 Lev. 4; 1 Sid. 109; 1 Mod. 124; Bac. Abr. Baron & Feme (H). (0) Hindley v. Westmeath, 6 B. & C. 200. (p) Ibid. (q) Marshall v. Rutton, 8 T. R. 546; Gilchrist v. Brown, 4 T. R. 766. See post, sect. 4. (r) Rex v. Flintan, 1 B. & Ad. 230. (8) Agar v. Blethyn, 2 C., M. & R. 699; 1 Tyr. & G. 160. |