23 CHAP. III. OF THE LIABILITY OF THE HUSBAND FOR THE DEBTS OF HIS liable for Not liable for her debts con tracted without his EVERY man is obliged by the common law of England to Husband supply his wife with necessaries, such as meat, drink, clothes, medicine, &c. &c. suitable to his degree and circumstan- for his wife. ces; and if he will not do so, the law affords a remedy. For upon a supplicavit to the Chancellor by the wife, the husband will not only be bound to keep the peace towards her, but to supply her necessities; and if she be deprived of her clothes, or refused the necessary sustenance, the Spiritual Court will divorce her from him, and give her alimony for her support.* But the wife, having these modes of redress, cannot make her husband liable for debts contracted by her, even for necessaries, without his consent: he must be a party to that contract by his agree- assent. ment, either expressed or implied, or he shall not be bound by it. And therefore it is, that in an action against the husband for necessaries furnished to his wife, it is always a question left to the jury to determine, whether he has given his assent or not. The contract of a married woman Husband's is absolutely void, it binds neither herself nor her husband assent presumed, without his assent; but where she buys necessaries for when wife buys necesherself or her family, the husband's assent will always be presumed during cohabitation, unless evidence be given to rebut the presumption arising from the circumstance of their living together. And this presumption will not be a Manby v. Scott, 1 Sid. 109. 1 Bac. Ab. 296. b Langford v. Tiler, 1 Salk. 113. Etherington v. Parrot, 1 Salk. 118. saries for herself and family. Husband's implied assent dis evidence of orders that not be trusted. rebutted by the profligacy of her conduct during cohabitation.c d But this implied assent will be disproved by evidence that a positive order was given by the husband, that his proved by wife should not be trusted by the person seeking to charge his positive him. This was the case of Etherington v. Parrot, where wife should assumpsit was brought against the defendant for goods sold and delivered to his wife It appeared that the goods were bought by the defendant's wife to make her clothes, and that she and defendant cohabited, but that she was an extravagant woman, and that on a former occasion, when she had bought goods from the plaintiff, the defendant paid for them, and at the same time gave notice to the plaintiff's servant, who received the money, that his master should trust her no more. On this occasion Lord Holt held, that "cohabitation is an evidence of the husband's assent to contracts made by his wife for necessaries. But if the husband have solemnly declared his dissent, that she shall not be trusted, any person that has notice of this dissent trusts her at his peril after, for the husband is only liable on account of his own assent to the contracts of his wife, of which assent cohabitation causes a presumption. For the wife has no power originally to charge her husband, but is absolutely under his power and government, and must be content with what he provides, and if he does not provide her with necessaries, her remedy is in the Spiritual Court." And therefore the plaintiff was nonsuited. But though a caution to particular individuals during cohabitation not to give credit to his wife will protect the husband against actions brought by these persons against him for necessaries subsequently furnished to her, yet a general notice to the public in the Gazette or newspapers, not to give her credit, will afford no protection to him, unless he can show that the persons suing had notice of the advertisement e c Robinson v. Greinold, 1 Salk. 119. 4 Vin. 175. d 1 Salk. 118. 2 Ld. Raym. 1006. e1 Bac. Ab. 295. tit. Bar. and Feme. assent dis that the wife. The presumption that the contract was made with the Husband's assent of the husband will also be repelled by evidence proved by that the credit was given to the wife and not to the husband. evidence, As in Metcalf v. Shaw,' which was an action on a promis. credit was sory note, and for goods sold. The plaintiff, a milliner, given to the supplied articles of dress to the wife of the defendant, who was an apothecary in a small country town, in the course of six months, to nearly 2001. The defendant and his wife were then living together, but there was no evidence that he was at all aware of her dealings with the plaintiff. A former account which she had had with plaintiff, without her husband's knowledge, had been paid by her father, who desired that no farther credit should be given to her without her husband's sanction. The goods in question were ordered by her alone, and the plaintiff took the promissory note declared on for the amount in her own name. It was contended for the plaintiff, that although the defendant might not be liable on the note, or for the whole of the goods, there must be a verdict for such part of them as the jury should think suitable to his circumstances and degree. That the notice, not coming from him, but from another, was of no avail, and he had not proved that she was furnished with proper apparel from any other quarter. quarter. Lord Ellenborough said, "The action clearly cannot be maintained on the note, as the wife had no authority to make it ; and he is not liable for any part of the goods on this plain ground, that they were not supplied on his credit, and the plaintiff looked to the wife only for payment. The credit was given to the wife only, and not to the husband." The verdict was accordingly for the defendant. Husband not liable, where cre dit given to The same rule was acted on in the case of Bently v. Griffin. This was an action for dresses sold to the defendant's wife. It appeared on the trial, that the defendant was an attorney, very limited in practice and income; that the wife. the plaintiffs had, in about a year and a half, furnished his wife with articles of fashionable dress to the amount of It was also 1837., and that the charges were reasonable. proved that the plaintiffs had debited the wife in their books, that they had been partly paid, by three bills of exchange, drawn by them on the husband, which were accepted and paid by her; but there was no proof that these bills had ever been presented to him for acceptance. It and was also proved that defendant and his wife cohabited that she had worn, in his presence, some of the articles furnished. On the part of the defendant it was proved, that when some of the articles were sent home, she desired the servant to put them away, that her husband might not see them ; and that in the presence of the defendant and one of the plaintiffs, she had said, "her husband never paid her bills, she always paid her own:" and also, that when one of the bills which had been drawn on her husband, and accepted by herself, was dishonoured, the plaintiffs had written in urgent terms to the wife, praying her to provide for the bill, but had made no application to the husband. Justice Heath, who tried the case, left it strongly to the jury to consider whether the credit had not been given to the wife, and not to the husband; but the jury found a verdict for the plaintiffs. The verdict was afterwards set aside, the Court being of opinion that the credit was given to the wife, and that the husband was not liable. On the same principle it was decided in the Exchequer Chamber, on a writ of error to reverse a judgment of the King's Bench, that assumpsit against the husband for money lent to the wife, at the request of the wife, was not maintainable; because it appeared on the record that the contract was with the wife, and not with the husband.h But if the money be alleged in the declaration to have been lent to the wife, at the express request of the husband, then the action is maintainable; because the money being lent to the wife at the husband's desire, is money lent to himself.i However, if the wife carry on a trade alone, in her own name, the husband living with her, he will be liable for h Stone v. Macnair, in Error, 7 Taunt. i Stephenson v. Hardy, 3 Wilson, 388. 432. 4 Price, 48. goods sold to her for this business, with his knowled ́e, although the invoice and receipts were in the name of the wife, and although the landlord received 'the rent of the house from the wife, and she was rated to and paid the poor's and paving rates; and though the husband never interfered in the payment or receipt of money.j k not liable for neces saries for nished dur ing his abhome, wife fur sence from when he money for the pur pose, and has given notice to them. If the husband be not separated from his wife, but be Husband occasionally absent in the discharge of his professional duties, he will not be liable for necessaries furnished to her, where he allowed her an adequate sum for that purpose; and had also given notice of the allowance to the person who provided the necessaries. In Holt v. Brien, it appeared that the defendant was a surgeon of a ship of war, whews and that his wife and four children lived at Plymouth, whilst he was absent at sea; that during his absence on such duty, the plaintiff had supplied meat to the defendant's wife, and that previous to his having so supplied her, the plaintiff the person had been distinctly informed, that the defendant allowed providing his wife 100l. per annum, and that if plaintiff trusted her, defendant would not pay him. It was, also proved, that the allowance had been punctually paid. The learned judge told the jury that as there was no proof of any separation between defendant and his wife, nor any separate maintenance settled on her by deed, the defendant must be consi dered as liable for all debts contracted by his wife for the necessary support of herself and her children: and the jury found for the plaintiff. But the Court of King's Bench afterwards set aside this verdict, on the ground that the case had not been properly left to the jury. And the Court stated this to be the law as applicable to this case that if a man supplies his wife with a sufficient allowance for the purpose of paying for those necessary supplies, and the tradesman with whom she deals has notice of it, and afterwards trusts her, he does so at his own peril, and will only be entitled to recover by proving that, in fact, the allowance was not regularly paid. |