with the goods that there was no necessity for her ordering them, CH. VIII. s. 3 and therefore no implied authority from her husband to order them (a). If it appears that the tradesman gave credit solely to the wife, and the jury find that to be the fact, the husband is not liable (b). Contracts binding Husband (During Cohabitation). Credit given So, if goods which are not necessaries suitable to the wife's to wife. station be furnished by her orders, this circumstance is to be taken Goods not into consideration by the jury, as showing that she had no autho- necessaries. rity to bind her husband by such orders (c). And it is clearly a question for the Court, whether there is any evidence on which it could properly be found that the articles supplied to the wife were necessaries, suitable to the husband's degree and circumstances (d). In such a case, therefore, it is incumbent on the plaintiff either to show the husband's express authority to the wife to make the purchase; or to prove that he saw her wear or use the articles bought, without expressing any disapprobation, so as thereby to raise a presumption that they had been bought by his authority (e). But mere proof of the husband's cohabitation with his wife is not sufficient to render him liable upon her contract for goods which are extravagant (f). woman can A husband is not liable on a promissory note made by his wife Married in his name without his authority; and evidence that the proceeds not bind her of such note were applied in discharge of the husband's debts is husband by not sufficient to prove his authority (g). promissory note. It was clear before the Judicature Act that a person lending Loan to wife money to a deserted wife for necessaries could not recover the loan for necessaries. from the husband at law (h); but equally clear that such a loan could be recovered in equity (i); and the effect of the Judicature Acts (k) would seem to be that such a loan could be recovered from the husband in any branch of the High Court. If a man cohabit with a woman, and allow her to pass for his Similar (b) Metcalfe v. Shaw (1811), 3 Camp. 22; 13 R. R. 740; per Holroyd, J., Holt v. Brien (1821), 4 B. & Al. 252, 255. (e) Lane v. Ironmonger (1844), 13 M. & W. 368; per Lord Abinger, C. B., Freeston v. Butcher (1840), 9 C. & P. 643, 647. (d) Phillipson v. Hayter (1870), L. R., C. P. 38; cf. the law as to necessaries for infants laid down in Johnstone v. Marks (1887), 19 Q. B. D. 509 (M. R. and L. JJ.), and Barnes v. Toye (1884), 13 Q. B. D. 410, dissenting from Ryder 7. Wombwell (1868), L. R., 3 Ex. 90; and see Infants, antea, p. 175. liability on man co (e) Per Holroyd, J., Montague v. habiting with Benedict (1825), 3 B. & C. 631, 632, and woman. per Best, C. J., Seaton v. Benedict (1828), 5 Bing. 28, 31; Atkins v. Curwood (1837), 7 C. & P. 756. (f) Emmett v. Norton (1828), 8 C. & P. 506, 510; Bac. Abr. Baron and Feme (H.); Com. Dig. Baron and Feme (Q.); and cf. Ld. Blackburn's remarks on millinery in Debenham v. Mellon (1880), 6 App. Cas. 24. (g) Goldstone v. Tovey (1839), 8 Scott, 394. (h) Knox v. Bushell (1857), 3 C. B., N. S. 334. (i) Jenner v. Morris (1861), 30 L. J., Ch. 361, App. (k) Judicature Act, 1873, s. 24. Contracts binding Husband (During Cohabitation). CH. VIII. s. 3. wife, without being married to her, the same presumption will arise from similar facts as if they were married, and he is liable for necessaries supplied to her, even by a tradesman who knew that the parties were not married (1). And where the party who supplies the goods is aware, at the time, that the woman is not the wife of the defendant, the liability of the latter will continue, until such party has been informed that the connection has terminated (m). But continues only during It has been held, however, that where the true position of the parties is not known, and the defendant is sought to be charged cohabitation. merely on the ground of his having lived with a woman as his wife, he may discharge himself from liability for necessaries supplied to her after he and she have separated, by proving that they were not lawfully married (n). But even in such a case, if there was evidence to go to the jury that the defendant had so acted as to induce the plaintiff to believe that the woman was still his (the defendant's) agent, he might be held liable (o). Effect of divorce. How far husband liable after separa tion. Burden of proof is on the plaintiff. And it is reported to have been held, that if parties between whom the ceremony of marriage has been performed, and who have lived together as man and wife, afterwards separate, upon a sentence of divorce being pronounced by the Ecclesiastical Court, declaring the marriage void ab initio, the man is not liable for the subsequent contracts of the woman, made without his express sanction, even with a tradesman who had previously been in the habit of supplying her with goods, and who continued to furnish her with goods upon the supposition that she was a married woman (p). (c) Contracts of Married Woman during Separation. Let us now consider the husband's liability on his wife's contracts, made after their separation by mutual consent, or in consequence of the husband's act or misconduct. Where husband and wife live separate, it is incumbent on any tradesman with whom the wife deals to make inquiries; and, if he trust her, he does so at his peril (q). Moreover, if necessaries be supplied to a married woman, during her separation from her (1) Watson v. Threlkeld (1794), 2 Esp. 637; 5 R. R. 760; Robinson v. Nahon (1808), 1 Camp. 245, and per Lord Selborne, L. C., in Debenham v. Mellon (1880), 6 App. Cas. 24. (m) Ryan v. Sams (1848), 12 Q. B. 460. (n) Munro v. De Chemant (1815), 4 Camp. 215. 460. 10. (0) Ryan v. Sams (1848), 12 Q. B. (p) Anstey v. Manners (1818), Gow, (g) Per Lord Mansfield, C. J., Ozard v. Darnford (1780), 1 Selw. N. P., 13th ed. 229; Hinton v. Hudson (1677), 1 Freem. 248, 249. Contracts binding Husband husband, mere proof of the fact of the separation is not sufficient CH. VIII. s. 3. to render him liable; but the plaintiff must also prove that the separation occurred under such circumstances as to give her an implied authority to bind him ;-that is, he must show that the husband put his wife away, or that she was justified in leaving him, or that the separation was by mutual consent (r). (During Separation). wife. And a husband who is separated from his wife, and who actually, Husband not according to the degree and circumstances, pays her a sufficient liable, who pays adequate sum for her support, cannot be charged even for necessaries pro- allowance to vided for her (s); although the tradesman had no notice of the allowance (t); and although the separation was not by deed, and there was no written agreement between them with respect to such allowance (u). Where the husband thrusts out or deserts the wife, or they Adequacy of separate by mutual consent, without any agreement as to the separate allowance amount, the adequacy of the allowance suitable to her station and question for his means paid by husband to wife is a question for the jury, the jury. burden of proof being on the plaintiff (x). But where they separate Except when by mutual consent, and make their own terms without duress, tled by mutual these terms are binding on both, and cannot be altered by a trades- agreement. man supplying goods to the wife and attempting to charge the husband. Nor is it material in such a case, whether the income is derived from the wife's separate property, or from the allowance of the husband, or partly from one source and partly from the other (y). amount set effect of hus And it seems doubtful whether, if the separation be by mutual Quere, as to consent, the mere fact of the husband not agreeing to make his band not wife an allowance at all, will give her authority to pledge his credit agreeing to even for necessaries (z). But where, by the deed of separation, the husband covenants Effect of nonwith a third party to make his wife a certain allowance, and he payment of make any allowance. agreed allow ance. (r) Johnston v. Sumner (1858), 3 H. & N. 261, 270; and see per Patteson, J., Bailey v. Calcott (1841), 4 Jur. 699; Edwards v. Towels (1843), 5 M. & G. 624; Hardie v. Grant (1838), 8 C. & P. 512, 516; Mainwaring v. Leslie (1826), Moo. & M. 18; Bird v. Jones (1828), 3 M. & R. 121. (8) Mizen v. Pick (1838), 3 M. & W. 481; Emmett v. Norton (1838), 8 C. & P. 506. (t) Mizen v. Pick (1838), 3 M. & W. 481; Reeve v. Marquis of Conyngham (1847), 2 C. & K. 444, overruling Rawlins v. Vandyke (1800), 3 Esp. 250, and the dictum of Holt, C. J., in Todd v. Stokes (1700), 1 Ld. Raym. 444. (u) Holder v. Cope (1846), 2 C. & K. 437; Hodgkinson v. Fletcher (1814), 4 (x) Hodgkinson v. Fletcher (1814), 4 (y) Biffin v. Bignell (1862), 7 H. & N. 877; Eastland v. Burchell (1878), 3 Q. B. D. 432. (z) See per Cur., Johnston v. Sumner (1858), 3 H. & N. 261, 270; and per Bramwell, B., Biffin v. Bignell (1862), 7 H. & N. 877, 879. binding (During Separation). CH. VIII. s. 3. fails to pay it, the wife may pledge his credit for necessaries (a). Contracts So, where it appeared that the wife's separate maintenance was Husband provided for by a deed, which purported to be made between the husband, the wife, and a trustee on her behalf; and the deed was executed by the husband and wife, but not by the trustee; it was held that, inasmuch as the husband could not be sued upon the deed, he was liable to the plaintiff for necessaries supplied by him to the wife (b). And so, where a husband on separating from his wife, instead of granting her a continuing allowance, assigned property to trustees for her separate use and the trustees covenanted with the husband, that he should not be answerable for the debts of the wife; it was held that this, of itself, was not a good defence to an action against him for necessaries supplied to her after their separation; but that he must also show that the trustees had given effect to the deed, by taking possession of the property which had been transferred to them thereunder (c). Express promise to pay the wife's debt. Liability of husband It has likewise been held, that a husband is responsible, if he has expressly promised to pay his wife's debt, even although he may have made her a sufficient allowance (d). But such a promise would appear to be a mere nudum pactum, and, therefore, not binding per se; although, if the question were as to the sufficiency of the allowance made to the wife, it might be evidence to go to the jury that such allowance was insufficient (e); or it might be left to the jury, as evidence that the husband had adopted his wife's contract (ƒ). And, where the husband's promise is conditional, it cannot be left to the jury as evidence that he has adopted his wife's contract, unless the plaintiff show that the condition has been complied with (g). If a married woman, who is separated from her husband, be amply provided with permanent funds and resources of her own, has funds of although they are not supplied by him, he is not liable for necessaries furnished to her (h). But the fact of her being in receipt of where wife her own, (a) Nurse v. Craig (1806), 2 N. R. 148. (b) Per Lord Eldon, C. J., Ewers v. Hutton (1800), 3 Esp. 255. But this would not now be law, see Separation deeds, post, p. 289. (c) Burrett v. Booty (1818), 8 Taunt. 343, and see note (v), supra. As to effect of non-payment of alimony, see Hunt v. De Blaquiere (1829), 5 Bing. 550; Hodgkinson v. Fletcher (1814), 4 Camp. 70; 15 R. R. 725; Wilson v. Smyth (1831), 1 B. & Ad. 801. (d) Per Lord Tenterden, C. J., Harrison v. Hall (1832), 1 Moo. & Rob. 185. (e) See per Lord Ellenborough, C. J., Hornbuckle v. Hornbury (1817), 2 Stark. 177. (f) See Barnes v. Jarrett (1838), 2 Jur. 988. 66 (g) Per Bayley, J., Holt v. Brien (1821), 4 B. & Al. 252, 254. A promise by a husband, after the death of his wife, to repay a sum borrowed by her during the coverture, when convenient to him," has been held to be evidence to go to the jury, either of a previous authority for, or of a subsequent ratification of her act; per Williams, J., West v. Wheeler (1849), 2 C. & K. 714. (h) Johnston v. Sumner (1858), 3 H. & N. 261; Dixon v. Hurrell (1838), 8 C. & P. 717; Lidlow v. Wilmot (1817), 2 Stark. 86; Clifford v. Laton (1827), Moo. & M. 101. s. a pension allowed her by the Crown "during pleasure," will not CH. VIII. & 3. exempt him from such liability (i). Contracts binding Husband (During Separation). It has also been suggested, that if a married woman, living separate from her husband, be able to earn enough to maintain herself, this circumstance will negative her implied authority to charge her husband for necessaries supplied to her during such support herseparation (k). or is able to self. husband who turns Where a husband wrongfully turns away his wife, he is by law Liability of liable to support her; and it seems that he cannot, by a general hubs away, advertisement in the newspapers, or even by a particular notice to individuals not to trust her, exempt himself from liability for necessaries suitable to his station and circumstances, furnished to her whilst so living apart from him (1). But whether if the wife, in such a case, had a sufficient settlement, or was able to earn a living for herself, the husband would still be liable to support her, has been questioned (m). wife. So it is a well-established principle, that if a husband ill- or ill-uses his treat his wife, and she, having reasonable grounds for apprehending further personal violence, quits his house, he is responsible for necessaries, to the same extent as if he had expelled her therefrom (n). And it has been held that, in such a case, the husband cannot put an end to the separation and to his consequent liability, merely by desiring the wife to return to cohabitation (o). So Lord Ellenborough ruled (p), that if a husband, by bringing a mistress under his roof as his mistress, render his house unfit for the residence of his wife, who thereupon removes and lives apart from him, the husband is bound to provide her with necessaries during the separation. And this decision, which appears to be founded in good sense and justice, was approved of by Best, C. J., and Park, J., in Houliston v. Smyth (q), in which case, the case of Horwood v. Heffer (r), which seems to uphold a contrary doctrine, was said not to be law. So it has been held, that where the husband by his cruelty compels his wife to live apart from him, and there is no agreement for a separate maintenance, but only the payment of an allowance |