SECTION III. OF THE LIABILITY OF THE HUSBAND IN RESPECT OF THE HAVING considered the interest which the husband acquires in his wife's property by the marriage, it is proposed to treat next of his liability in respect of her contracts; and first, as to her contracts before marriage. is liable for the con tracts of his wife dum sola. 1.-Liability of the husband for the contracts of his wife dum A husband sola.] It may be laid down as an established rule, that the husband is liable, during the marriage, for all contracts made by her dum sola, how improvident soever they may be, though she does not bring him a portion of one shilling; and on the other hand, that unless such contracts be enforced during the coverture, he is not personally responsible in respect of them, be her fortune ever so great; but if he becomes her administrator, he is chargeable in his representative capacity to the extent of her assets a. A husband is not liable for any 2.-Liability of the husband for the contracts of his wife during cohabitation.] During the coverture the wife is in general incapable of acquiring any property of her own, or of contracts binding her husband by any contract made by her without his authority, express or implied; while, however, they live to Bac. Ab. Baron and Feme (E.) Com. Dig. Baron and Feme (2 C.) (N.) F. N. B. 121. Heard v. Stamford, 3 P. Wms. 409. Cas. temp. Talbot, 173. 1 Roll. Ab. 351. But in an action in respect of the contract of the wife previous to the marriage, entered into by his wife during coverture assent express or implied. without his gether, if she orders any goods, or enters into any contract for necessaries for herself or the family, the law will presume that in so doing she acted as his agent, and under his authority; and he will be responsible for such contracts unless he rebuts the presumption of agency by express evidence a. The rule of law is this: If the husband and wife live together, and the husband will not supply her with necessaries, or the means of obtaining them, then, although she has her remedy in the Ecclesiastical Court, yet she is still at liberty to pledge his credit for what is strictly necessary for her own support. But if he provides her with necessaries, he is not bound by her contracts, unless there is reasonable evidence to shew that she has made the contract with his assent. Cohabitation is presumptive evidence of the assent of the husband, but it may be evidence of rebutted by contrary evidence; and when such assent is proved, the wife is the agent of the husband duly authorized Þ. Where a husband is living in the same house with his wife, he is liable to any extent for goods which he permits her to receive there; she is considered as his agent, and the law implies a promise on his part to pay the value. Cohabita tion is presumptive assent. The hus But to render the husband liable for goods supplied to his wife during cohabitation, without his express assent, it is necessary that the goods be supplied on the credit of the husband, and that they be necessaries suitable to his estate and circum stances. Where the plaintiff, a milliner, supplied articles of dress to band is not the amount of 2001., in the course of six months, to the wife liable ex cessaries supplied on his credit. cept for ne- of the defendant, an apothecary in a country town, and it did not appear that he had any knowledge of the goods having been supplied, and the plaintiff took from the wife a promissory note, in her own name, for the amount; besides, her father had settled a former account of the same sort, which she had with the plaintiff without the knowledge of her husband, and desired the plaintiff not to give her any further credit without her a B. N. P. 134. Manby v. Scott, 1 Mod. 125. Etherington v. Parrott, 2 Lord Raym. 1006. Montague v. Benedict, 3 B. & C. 631. Martin v. Withers, Skin. 348. Per Bayley, J., in Montague v. Benedict, 3 B. & C. 635. Per Lord Ellenborough, C. J.,in Wightman v. Wakefield, 1 Camp. 121. husband's sanction; it was held, that the husband was not liable, as the goods were not supplied on his credit, but on that of his wife. So, where the plaintiff had furnished the wife of the defendant, an attorney, not in extensive practice, with fashionable dress, to the amount of 1837., in about a year and a half, but debited the wife in his books, and she had partly paid for the goods by bills of exchange accepted by herself, and paid by her; it appeared that the husband had seen her wear some of the dresses; it also appeared, that when one of her acceptances became due, the plaintiff wrote her, beseeching her to provide for it, and that he made no application to the husband respecting it, and that she said in the presence of the plaintiff and the defendant, that "her husband never paid her bills, she always paid her own." Heath, J., left it to the jury to consider, whether credit had been given to the wife and not to the husband, and the jury having found a verdict for the plaintiff, the court set it aside and granted a new trial. So, where the husband, during his temporary absence, made an allowance to his wife for the supply of herself and family, and a tradesman, with notice of this, supplied her with goods, on her promising to pay him out of her allowance; held, that the husband was not liable ". Where the plaintiff, a jeweller, in the course of two months, supplied the defendant's wife with jewellery to the amount of 851., and it appeared that the defendant was a special pleader of a moderate income only, who lived in furnished lodgings, without a man-servant; that the wife had jewellery suitable to her condition, and that she had never worn in her husband's presence any of the articles furnished to her by the plaintiff; the court held, that the articles supplied were not necessaries, and that as there was no evidence to go to the jury of any assent of the husband to the contract made by his wife, the plaintiff could not maintain an action for the amount d. Where a tradesman provides articles for a married woman, a Metcalf v. Shaw, 3 Camp. 22. 631. 5 D. & R. 532. S. P. Seaton v. Benedict, 5 Bing. 28. 2 M. & P. 66. When the agency of the wife will be pre sumed. it is his duty, if he wishes to make the husband responsible, to inquire if she has her husband's authority or not; for where he chooses to trust her, in expectation that she will pay, he must take the consequences if she does not. If he takes no pains to ascertain whether the necessity exists or not, he supplies the articles at his own peril; and if it turn out that the necessity does not exist, the husband is not responsible for what may be furnished to his wife without his knowledge ". But however low a man's circumstances may be, if he allows his wife to assume an appearance which he is unable to support, he is answerable for the consequences. When a tradesman is thereby deceived, the loss must fall upon him who connived at the deception. Whatever may be the husband's degree, he sends his wife out into the world with a credit corresponding to the rank in life in which, by his sanction, she affects to be placed; and if a man, knowing that his wife has ordered goods inconsistent with his fortune, and having the power of returning, or countermanding them, he does neither, he adopts her act, and renders himself liable for them". Furniture for a house may be considered as necessaries, provided it is suitable to the rank and income of the wife. What will be considered necessaries, exclusive of board and lodging, are such articles as comport with the wife's situation in life and her husband's fortune, and which are usually worn or possessed by persons in similar conditions of life. If the wife carries on business, and the husband receives the profits, the law presumes that she acts as his agent, and he is liable for articles furnished in the business, though the invoices and receipts are in the name of the wife, and though she be rated to, and pay the rates and taxes. Where a wife traded, and the husband received the profits, and she borrowed money; upon a bill filed, after his death, against the husband for the a Per Holroyd, J., 3 B. & C. 637. Per Lord Ellenborough, C. J., in Waithman v. Wakefield, 1 Camp. 121. Hunt t. De Blaquiere, 5 Bing. 550. 3 M. & P. 108. e Petty v. Anderson, 3 Bing. 170. 10 Moore, 577. 2 C. & P. 38. money, the lord chancellor directed an issue to try whether the money was borrowed to carry on the trade; observing that if it were, the husband would be decreed to pay it a. to the wife. If the wife purchases necessaries, and without the authority Money lent of her husband borrows money to pay for them, the husband will not be liable at law for the payment of the money b. But a court of equity will allow the lender of the money to stand in the place of the person who actually supplied her with the necessaries, and compel the husband to pay to him the value of the articles proved to have been delivered; and the husband. is liable at law for a loan of money to his wife made at his request 4. As cohabitation is prima facie evidence of the wife's authority to contract for necessaries, if a man cohabits with a woman to whom he is not married, and permits her to pass as his wife, he will be liable to pay for goods furnished to her, even by a man who knew that the parties were not married. But where they have separated, he cannot be charged even with necessaries supplied to her, if he can shew that in point of fact they were not married; nor will his executor be liable for goods supplied to her after his deaths. But cohabitation is only presumptive evidence of the wife's authority to contract for necessaries, which may be rebutted by evidence negativing the husband's assent to such contracts, as by proof of express notice to the plaintiff or his servant not to trust the wife h. A general or public prohibition, as notice in a newspaper, will not, however, be sufficient to discharge the husband, without proof that it reached the plaintiffi. VOL. II. f Munro v. De Chemant, 4 Camp. 215. & Blades v. Free, 9 B. & C. 167. 4 M. & R. 282. h Boulton v. Prentice, 2 Stra. 1214. Etherington v. Parrott, Salk. 118. Per Lord Eldon, in Rawlins v. Vandyke, 3 Esp. 250. 2 Stark. Ev. 392. i Manby v. Scott, 1 Sid. 127. Bac. Ab. Baron and Feme, H. Hinton r. Hudson, 1 Freem. 249. Child v. Hardyman, Stra. 875. CC |