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band to give such order. If it appear that the articles were of an expensive description-that the wife was in the habit of putting them on when the husband was away from home, and of wearing plainer clothes when he returned, these circumstances go to repel any implication that they were supplied or worn with his authority or knowledge. Reneaux v. Teakle, 8 W. H. & G. 680, 20 Eng. Law & Eq. 345.
4. How far husband is liable for supplies to wife during his temporary absence.
In the United States-in that part of the country where new-fangled notions are more apt to prevail than in the southern states-the husband is sought to be charged in a different fashion. He goes to sea and his wife calls on a man for advice. He puts into a mesmeric sleep, not her but another woman, who as a clairvoyant discovers and declares the nature and character of the complaints, and prescribes the medicines, and according to her prescription he compounds medicines, which are delivered to the patient. In such a case a verdict was found in Massachusetts for the plaintiff, but the supreme court set it aside. It admitted that if the plaintiff professed to be a physician, and to have medical skill, or a knowledge of diseases and their medical remedies, and did in fact furnish necessary medicine and medical aid and advice to the wife, the husband would be liable for such necessary supplies; but it considered that if the plaintiff did not profess to be a physician, or to have such knowledge, the husband was not liable. "The law," said Fletcher, J., "does not recognize the dreams, visions or revelations of a woman in a mesmeric sleep, as necessaries for a wife for which the husband, without his consent, can be held to pay. These are fancy articles, which those who have money of their own to dispose of, may purchase if they think proper, but they are not necessaries known to the law, for which the wife can pledge the credit of her absent husband." Wood v. O'Kelley, 8 Cush. 406.
A husband temporarily absent from the country is not to be held liable for things supplied the wife when it appears that they were not necessaries according to his condition; that the provision which he made for her was quite sufficient; and that it was notorious in the neighbourhood that she was living in a style of expense beyond what was justified by his condition. Dennys &c. v. Sargeant, 6 C. & P. 419, 25 Eng. Com. Law Rep. 465.
5. Husband not liable for supplies to wife living apart from him without his consent.
If a tradesman part with his goods to a woman living apart from her husband, the onus is on him to prove that the separation took place under such circumstances as will entitle him to recover the price of those goods against the husband. Clifford v. Laton, 3 C. & P. 15, 14 Eng. Com. Law Rep. 188.
The husband is not liable for goods furnished his wife when living separate and apart from him, unless it appear that she was so living with his consent. Mainwaring v. Leslie, 2 C. & P. 507, 12 Eng. Com. Law Rep. 238. A person who has given credit to her for such goods cannot recover from him when it appears that she was living separate from her husband, against his wish and contrary to his entreaties, and that he was always ready and willing to have received and provided for her in his own house. Hindley v. Westmeath, 6 Barn. & Cress. 200, 13 Eng. Com. Law Rep. 145.
The principle is that when without any misconduct on the husband's part, his wife leaves him without his consent, the husband is not liable for necessaries, except for such as may be furnished her after she offers to return and he refuses to receive her. Longworth v. Hockmore, 1 Ld. Raym. 444, 12 Mod. 144; McCutchen v. McGahay, 11 Johns. 281. He must not prevent her return by imposing an improper condition. Reed v. Moore, 5 C. & P. 200, 24 Eng. Com. Law Rep. 277.
6. When wife is living apart from husband, with his consent, how his liability for supplies is affected by her having a provision.
When the wife is living separate from her husband, by his consent, she has no authority to contract debts in his name if he makes her a reasonable allowance, Mizen v. Peck, 8 C. & P. 371, note, 34 Eng. Com. Law Rep. 435; or if she has otherwise a competent provision, Dixon v. Hurrill, S C. & P. 717, 34 Eng. Com. Law Rep. 599; Todd v. Stokes, 1 Salk.
If it appear that the husband arranged to furnish from his dry goods and grocery store all the necessaries in his line which she and her daughter required; that he made similar arrangements with butchers and others; that he sent frequently to see that they were properly taken care of; and that they were always comfortably provided for-if it appear not only that these arrangements were known to the wife, but that the husband gave notice in a newspaper which the
plaintiff took, prohibiting persons from trusting his family without his special orders, and that they previously had no dealings with the plaintiff, the husband will not, under such circumstances, be held responsible for what is furnished against his orders. Kimball v. Keyes, 11 Wend. 33.
The effect of a deed of separation between husband and wife has been much discussed. As there are circumstances which will induce a court to pronounce a decree of divorce a mensa et thoro, it may not be unlawful for a man, under the same circumstances, voluntarily to agree to do that which the law, if he refused, would compel him to do. Upon this ground a deed of separation made upon due consideration may well be considered as not unlawful. Ld. Abinger, 5 Bingh. N. C. 341; Lester's case, 8 Mod. 22; Mead's case, 1 Burr. 542. When a husband has by his deed acknowledged his wife to have a just cause of separation from him, and has covenanted with her natural friends to allow her a maintenance during separation, on being relieved from liability to her debts, he shall not be allowed to impeach the validity of that covenant. Ld. Denman, 5 Bingh. N. C. 341; Jee v. Thurlow, 2 Barn. & Cress. 547, 9 Eng. Com. Law Rep. 174. But the doctrine as to the validity of a contract for separate maintenance does not go so far as in Ld. Rodney v. Chambers, 2 East 283, was supposed. St. John v. St. John, 11 Ves. 532, 538; Chambers v. Caulfield, 6 East 252. Being under seal it requires no consideration to make it binding. Ante, p. 31. And a court will hold it good when there is nothing on its face, or in the evidence, to shew that it is invalid. Clough v. Lambert &c. 10 Sim. 174, 16 Eng. Ch. Rep. 174; Waite v. Jones, 1 Bingh. N. C. 656; Jones v. Waite, 5 Id. 341, 4 Man. & Grang. 1104, 27 Eng. Com. Law Rep. 532, 35 Id. 130, 43 Id. 567; 9 Clark & Fin. 101. But it may be shewn to be bad. And it is considered bad when it provides not for an immediate but a future separation of the parties. Durant v. Titley, 7 Price 577. When the deed is void the right of action against the husband for supplies to the wife exists just so far as it would have existed if that deed had not been made, but no farther. Hindley v. Wistmeath, 6 Barn. & Cress. 200, 13 Eng. Com. Law Rep. 141. Though the deed be valid and makes provision for the wife's separate maintenance, there may also be a right of action against the husband for supplies to her, unless payment be duly made according to such provision. Muse v. Craig, 5 Bos. & Pul. 148.
7. Liability of husband for supplies to wife whom he turns out of doors without provision.
When a man has lived with a woman as his wife and introduced her into society as such, he cannot, by then turning her away and insisting she is not his wife, relieve himself from the obligation created by his marriage. If he had really been lawfully married to her, he will be liable for necessaries supplied her, while she is living separate from him without adequate means of support. Munro v. De Chemant, 4 Camp.
The man who (without justifiable cause) will not receive his wife into his house, it is considered turns her out of doors and sends with her credit for her reasonable expenses. lyns v. Van Dyke, 3 Esp. 250.
He sends her out with such credit when he drives her from her home by cruelty, personal violence, or that which shall excite reasonable fear of personal violence. 2 C. & P. 22. Where a wife's situation in her husband's house was rendered unsafe from his cruelty or ill-treatment, Lord Kenyon ruled that it was equivalent to a turning her out of the house; and that the husband was liable for necessaries furnished to her under those circumstances. Hodges v. Hodges, 1 Esp. 442.
The language of Lord Kenyon is preferred to the doctrine in Harwood v. Heffer, 3 Taunt. 421. This case is overruled. Aldes v. Chapman, Selw. N. P. 281. A woman is not bound to wait till she is actually treated cruelly; it is enough that there is reason to apprehend personal violence. If it be said that a woman may leave under pretence of fear, the answer is that the jury are to judge whether the circumstances justified her in leaving or not. Houliston v. Smith, 2 C. & P. 22, 12 Eng. Com. Law Rep. 13.
Harwood v. Heffer, was characterized by two leading features. Not only had the husband treated his wife with great cruelty; but he had taken into the house another woman with whom he cohabited; and the wife made her escape from a chamber in which he, on a pretence of her insanity, confined her. The decision non-suiting the plaintiff who, under such circumstances, furnished the wife board, lodging and necessaries, Best, J. pronounced was "not law, it being against the first principles of morality;" he was "really shocked at the doctrines laid down in that case. Is" (he asked,) "a woman to remain within walls which contaminate her? If she did, undoubtedly, no court would befriend her. She must
shew herself virtuous; she must separate herself pro salute anima." Other judges were no less surprised at the doctrine of Harwood v. Heffer. Park, J. said, "taken to its full extent, it is abhorrent to every feeling of a man, and every duty of a moralist and a christian; for it is said that although a husband places a profligate woman at the head of his table, and tells his wife that she may dine in her own room, yet she is not justified in quitting his house, but should sue for alimony or a divorce a mensa et thoro. Is the mistress of a family to give way to a common prostitute? I have no difficulty in saying that that case cannot be the law of England, because it is not the law of morals and religion." Gaselee, J. observed that he "always understood that if a man, by his conduct, rendered his house unfit for a modest woman to remain in, she was entitled to leave it; and he thereby gave her a credit." 2 C. & P. 22, 12 Eng. Com. Law Rep. 13, 14. The husband is not absolved from the duty of maintaining his wife during a separation for which she is not to blame. He is liable for necessaries furnished the wife during her suit for a divorce until a decree is pronounced. Cunningham v. Irwin, 7 S. & R. 258. Board, lodging, clothing and medicines come under the meaning of necessaries: The necessaries are to be suitable to the rank and estate of the parties, in other words, according to the condition of the parties in life. S. C.
Still the liability of a husband who puts away his wife, though without cause, is only for necessaries. Hardie v. Grant, 8 C. & P. 512, 34 Eng. Com. Law Rep. 506.
8. Wife's adultery exempts husband from liability.
The husband is not liable for necessaries furnished a wife who went away from him with an adulterer, Morris v. Martin, 1 Str. 607; or who is caught in adultery and turned out of doors in consequence, Best, J., 2 C. & P. 22. If not knowing of any adultery, he turn her out of doors and hold her out as fit to be maintained, by making a payment on account of her board and lodging, he may be liable to pay on that account for any further time which may elapse before an act of adultery is disclosed and notice not to trust her. Houliston v. Smith, 2 C. & P. 22, 12 Eng. Com. Law Rep. 12. Though she be turned out of doors, if she afterwards commit an act of adultery, he will not be liable for necessaries furnished her after she committed that act. Govier v. Hancock,
6 T. R. 603.