*

by consent, without any provision for her maintenance, or *147 if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. (a) 1 But if the wife elopes, though it be not with an adulterer, he is not chargeable even for necessaries. The very fact of the elopement and separation is sufficient to put persons on inquiry, and whoever gives the wife credit afterwards, gives it at his peril. The husband is not liable unless he receives his wife back again. (b) The duties of the wife, while cohabiting with her husband, form the consideration of his liability. He is accordingly bound to provide for her in his family; and while he is not guilty of any cruelty, and is willing to provide her a home, and all reasonable necessaries there, he is not bound to furnish them elsewhere. All persons supplying the food, lodging, and raiment, of a married woman living separate from her husband, are bound to make inquiries, and they give credit at their peril. (c) 2

It has been a question whether, if the wife elopes, and repents and returns again, and her husband refuses to receive her, he is then bound for her necessaries. The opinion of Lord Ch. J. Raymond, in Child v. Hardyman, (d) seems to be, that he would be liable; for he says that if the husband should refuse to receive the wife, "from that time it may be an answer to the elope

furnished to her by a tradesman, though he had no notice, for the moral obligation on his part ceases. Caney v. Patton, 2 Ashmead, 140. Mr. Wallace, one of the learned editors to the American edition of Smith's Leading Cases, in Law Library, N. S. vol. xxv., says, that this case in Pennsylvania is the ablest case on the subject to be found in the American books.

(a) Walker v. Simpson, 7 Watts & Serg. 83. Lockwood v. Thomas, 12 Johns. 248. (b) Robinson v. Greinold, 1 Salk. 119. Morris v. Martyn, Str. Rep. 647. Child v. Hardyman, Str. Rep. 875. Manby v. Scott, 1 Mod. 124. 1 Sid. 109. 1 Lev. 4, S. C. 12 Johns. 293. 3 Pick. 289. Kirkpatrick Ch. J., 2 Halstead, 146.

(c) M'Cutchen v. M'Gahay, 11 Johns. 281. Mainwaring v. Leslie, 2 Carr. & Pa. 507. Hindley v. Marquis of Westmeath, 6 Barn. & Cress. 200. (d) 2 Str. 875.

1 Walker v. Laighton, 11 Foster, 111. Calkins v. Long, 22 Barb. (N. Y.) 97. Adul tery committed by the wife after separation by consent defeats the claim for necessaries. Cooper v. Lloyd, 6 Com. B. N. S. 519. The husband is liable for the funeral expenses of the wife, though they were, by agreement, living separate at the time of the death. Ambrose ». Kerrison, 4 Eng. L. & Eq. 631.

A wife is justified in leaving the house where her husband is living in adultery, and necessaries furnished to her, under such circumstances, may be recovered for against the husband. Sykes v. Halstead, 1 Sandf. (N. Y.) 483.

ment." Lord Eldon subscribed to that case, and the same doctrine has been declared in New York; (e) but it does not apply where the wife had committed adultery. (f) It has also been a debatable point, whether, if the husband should refuse to

provide necessaries for his wife, and * prohibit a particular * 148 person, or any person from trusting her, and she should, notwithstanding the prohibition, be trusted with necessaries suitable to her age, and degree, and rank in life, the law would then, notwithstanding such prohibition, raise an assumpsit against the husband. In the case of Manby v. Scott, in the reign of Charles II., (a) which was argued many times at the bar, and then in the Exchequer, by all the judges of England, it appeared to be the opinion of a large majority of the judges that the husband could not be charged even with the necessaries for the wife, against his express previous prohibition to trust her, and that her remedy would be in the spiritual court for alimony. But the minority of the court held, that the husband would be chargeable from the necessity of the case; and that the husband cannot deprive the wife of the liberty which the law gives her of providing necessaries at his expense for her preservation. This opinion of the minority seems to be the received law at this day, and the extreme rigor of the old rule is relaxed.1 The husband is bound to provide his wife with necessaries, when she is not in fault, from a principle of duty and justice; and the duty will raise an assumpsit independent of his consent, and when no consent can be inferred, as in the case of a refusal on his part to provide her with necessaries. If he turns her out of doors, and forbids all mankind from supplying her with necessaries, or if she receives such treatment as affords a reasonable cause for her to depart

(e) M'Cutchen v. M'Gahay, 11 Johns. 281. M'Gahay v. Williams, 12 Ibid. 293. Ewers v. Hutton, 3 Esp. 256. Blowers v. Sturtevant, 4 Denio, 47.

(ƒ) Govier v. Hancock, 6 Term, 603.

(a) 1 Mod. 124. 1 Sid. 109. 1 Lev. 4, S. C.; and the case is reported at large, with learned notes, in Smith's Leading Cases, in Law Library, N. S. vol. xxviii., in a new translation from the original French in Siderfin, by J. G. Phillimore, Esq. It is one of the most interesting cases, and in ability and learning the discussion is equal to any in the English law.

Clement v. Mattison, 3 Rich. 93.

1 Clement v. Mattison, 3 Rich. 93.

2

from his house, and refuse to cohabit with him, yet he will be bound to fulfil her contracts for necessaries, suitable to her circumstances and those of her husband. (b) The case of *149 Bolton v. Prentice, (c) which * arose in the K. B. as late as 18 Geo. II., goes the length of establishing this reasonable doctrine. The wife took up necessaries on credit, after the husband had used her ill, and abandoned her, and forbidden the plaintiff from trusting her. But the K. B. held that the husband had no right to make such a prohibition in such a case; and they distinguished the case from that of Manby v. Scott, because, in that case the wife was guilty of the first wrong; and they sustained the action of the assumpsit for the goods sold to the wife.

In a modern decision, in the K. B., (a) it was held, that if a man turned away his wife without justifiable cause, he was bound by her contracts for necessaries suitable to her degree and estate. If they lived together, he is only bound by her contracts made with his assent, which may be presumed. If the wife goes beyond what is reasonable and prudent, the tradesman trusts the wife at his peril, and the husband is not bound but by his assent, either express or reasonably implied. The doctrine of the Supreme Court of New York is to the same effect. (b)

(b) Houliston v. Smyth, 3 Bing. 127. In this case the court considered the law to be, that if a man rendered his house unfit for a modest woman to continue in it, or if the wife had reasonable ground to apprehend personal violence, she was justified in quitting it, and the husband would be liable for necessaries furnished for her support.

(c) Str. 1214.

(a) Montague v. Benedict, 3 Barn. & Cress. 631.

(b) M'Cutchen v. M’Gahay, 11 Johns. 281. The husband is not liable on a negotiable note given by the wife, even in a suit by the bonâ fide indorsee, though given for goods purchased by her to carry on her trade, unless it was given with his authority or approbation. Reakert v. Sanford, 5 Watts & Serg. 164.

2 The party furnishing necessaries must prove that the wife left for a sufficient cause. Blowers v. Sturtevant, 4 Denio, 46. Adultery by the husband is a sufficient cause. Sykes v. Halstead, 1 Sandf. (N. Y.) 483. Hancock v. Merrick, 10 Cush. 41. Snover v. Blair, 1 Dutch. (N. J.) 94. Reese v. Chilton, 26 Mis. (5 Jones) 598. Williams v. Monroe, 18 B. Mon. (Ky.) 514.

If a husband, who is able to support his wife, drive her away from his house, he cannot be charged with her support as a pauper at the suit of the superintendents of the poor. Norton v. Rhodes, 18 Barb. (N.Y.) 100. See Commissioners v. Hildebrand, 1 Carter, (Ind.) 555; but it seems to be held, in Massachusetts, that a town may in such a case recover of the husband the amount expended in the necessary support of the wife as a pauper, but not for supplies suitable to her condition in life. Monson v. Williams, 19 Law Rep. 412, (Nov.

(3.) Liable for her torts.

The husband is liable for the torts and frauds of the wife committed during coverture. If committed in his company, or by his order, he alone is liable. If not, they are jointly liable, and the wife must be joined in the suit with her husband. Where the remedy for the tort is only damages by suit, or a fine, the husband is liable with the wife; but if the remedy be sought by imprisonment, on execution, the husband is alone liable to imprisonment. (c) The wife, during coverture, cannot be taken on a ca. sa. for her debt dum sola, or a tort dum sola, without her husband; and if he escapes, or is not taken, the court will not let her lie in prison alone. (d) If the tort or offence be punished criminally by imprisonment, * or other corporal punishment, * 150 the wife alone is to be punished, unless there be evidence of coercion, from the fact that the offence was committed in the presence or by command of the husband. This indulgence is carried so far as to excuse the wife from punishment for theft committed in the presence or by the command of her husband. (a) But the coercion which is supposed to exist in that case is only a presumption of law, and, like other presumptions, may be repelled.1

III. Wife's capacity at law to act as a feme sole. (1.) To purchase and sell land.

The disability of the wife to contract so as to bind herself, arises not from want of discretion, but because she has entered into an indissoluble connection, by which she is placed under the power and protection of her husband, and because she has not the administration of property, and has given up to him all personal property in possession, and the right to receive all such as may be

(c) 3 Blacks. Com. 414.

(d) Jackson v. Gabree, 1 Vent. 51.
(a) 1 Hawk. P. C. b. 1, ch. 1, sec. 9.

1 A wife, having no power at law to enter into the contract of agency with her husband, it would seem to follow that she cannot be made liable for his fraud, while assuming to act for her in that capacity. Birdseye v. Flint, 3 Barb. (N. Y.) 500. In an action against husband and wife for a libel published by the latter, no less damages shall be recovered, than if the woman were unmarried. Austin v. Wilson, 4 Cush. 273.

1 Uhl v. Commonwealth, 6 Gratt. 706. Commonwealth v. Murphy, 2 Gray, 510. A wife cannot be convicted of feloniously receiving stolen goods from her husband. Regina v.

reduced into possession. (b) But this general rule is subject to certain exceptions, when the principle of the rule could not be applied, and when reason and justice dictate a departure from it.2

In the first place, a wife may purchase an estate in fee without her husband's consent, and the conveyance will be good, if the husband does not avoid it by some act declaring his dissent, and the wife, after her husband's death, may waive or disagree to the purchase. (c) But the conveyance of a feme covert, except by some matter of record, was absolutely void at law, and in England the wife used to pass her freehold estate by a fine, and this and a common recovery were the only ways in which she could, at common law, convey her real estate. She might, by a fine, and a declaration of the uses thereof, declare a use for her husband's benefit. So if the husband and wife levied a fine, a declaration of the uses by the husband alone would bind the wife and her heirs, unless she disagreed to the uses during the cover

(b) 1 Vesey, 305. 1 H. Blacks. 346.
(c) Litt. sec. 677.

Co. Litt. 3, a.; 356, b. 2 Blacks. Com. 292.

Brooks, 14 E. L. & Eq. 580. Regina v. Mathews, 1 E. L. & Eq. 549. It is held in Roadcap v. Sipe, that a joint action of trespass will lie against husband and wife for an assault committed by both. 6 Gratt. 213. And where a party brought an action against husband and wife jointly for an assault by the latter, it was held error to nonsuit him as to both, on the ground of the presumed exemption of the wife. Wagener v. Bili, 19 Barb. (N. Y.) 321. It may be well to remark, that this immunity of the wife does not extend to the crimes of treason, murder, or robbery, nor, in general, to those crimes (except theft) which are mala in se; even in respect to theft, if the wife was not drawn to the offence by the husband, she is guilty as well as the husband. 1 Russell on Crimes, p. 16.

2 In New York, if any female, being or afterwards becoming a married woman, deposits funds in a savings-bank in her own name, the officers of such bank are authorized to pay the same to her, and her receipt will be a sufficient discharge. Laws of New York, 1850, ch. 91. Under the New York Acts the real estate of married women is liable to the lien given by the mechanics' lien laws, for claims growing out of contracts for building and materials to be placed on such lands. Hauptman v. Catlin, 20 N. Y. 247.

3 Where lands were conveyed to a married woman, who had been deserted by her husband, a mortgage deed, given back by her at the same time to secure a part of the purchase-money, was held void. Concord Bank v. Bellis, 10 Cush. 276. Nor is a married woman estopped from setting up title to lands, as against one claiming as grantee under her warranty deed, which falsely purported to have been executed before her marriage. Lowell v. Daniels, 2 Gray, 161.

The wife, even at common law, may make a conveyance to her husband through a third person, to whom the wife first conveys, and who then conveys to the husband. Jackson v. Stevens, 16 Johns. 110. Meriam v. Harsen, 2 Barb. Ch. 232. But it seems that a married woman may not, by uniting with her husband in a conveyance of her lands to a trustee, reserve a valid power to appoint it to the husband's use, or to convey it to him by devise. Dempsey v. Tylee, 3 Duer, 73.