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present state of things; and while that continues it is clear that the defendant is disabled from performing his contract." Caines v. Smith, 15 M. & W. 189. Moreover there being a breach of contract at once when the defendant married, it is then no matter how long the person whom the defendant has married lives. Short v. Stone.
2. Marriage gives wife a right to be supplied with necessaries notwithstanding husband become insane.
By contracting the relation of marriage, a husband takes on himself the duty of supplying his wife with necessaries; and if he does not perform that duty the wife has, by reason of that relation, an authority to procure them herself, and the husband is responsible for what is so supplied. Manby &c. V. Scott, 1 Lev. 4, 1 Sid. 109; Morton v. Withens, Skinn 348; 2 Smith's L. C. 252. He is responsible though the supply was during the period of his lunacy. The marriage gives her authority to pledge his credit for her support, if circumstances render it necessary, she herself not being in fault; and that authority is not revoked by the husband becoming insane. Read v. Legard, 6 W. H. & G. 636.
3. How far husband is liable on his wife's contracts, when they are living together.
When the husband and wife are living together, and he provides her with necessaries, he is not bound by her contracts, except where there is reasonable evidence to shew that the wife has made the contract with his assent. Etherington v. Parrot, 1 Ld. Raym. 1006, Salk. 118, Holt 102. The party seeking to charge the husband in respect of such a contract, is bound either to prove an express assent on his part, or circumstances from which such assent is to be implied. Montague v. Benedict, 3 Barn. & Cress. 631, 10 Eng. Com. Law Rep. 205; Spreadbury v. Chapman, 8 C. & P. 371, 34 Eng. Com. Law Rep. 434. If a wife buy necessary apparel for herself, the assent of the husband shall generally be intended. Com. Dig. tit. Baron & Feme (2). While she is living with him, and there is no reason to suppose any difference between them, the law presumes an authority for her to order proper things for his house and her clothing, and in general for such other things as are fairly within her superintendence. Hardie v. Grant, 8 C. & P. 512, 34 Eng. Com. Law Rep. 506. But if the wife gives extravagant orders, when the husband's income is small, that is a circumstance to
repel the inference of assent. Atkins v. Curwood, 7 C. & P. 756, 32 Eng. Com. Law Rep. 721.
In the case of Mr. Espinasse, who was working hard at his profession, as a special pleader, and did not keep a man servant, and was living in a ready furnished house, it could not (Bayley, J. observed) be supposed for a moment that he could authorize his wife to spend upwards of £ 80 in jewelry in about six weeks. It appeared that she was related to a family of rank-was a cousin of Lord Petre-still, said Abbott, C. J., it is not the rank of the party but the estate that must be considered. Montague v. Espinasse, 1 C. & P. 356, 502, 11 Eng. Com. Law Rep. 416, 454.
Sometimes a tradesman supplies goods, not on the credit of the husband but of the wife, and can look to her only for payment. Metcalfe v. Shaw, 3 Camp. 22; Bentley v. Griffin, 5 Taunt. 356, 1 Eng. Com. Law Rep. 131. The curate of Milton, residing at the rectory near Northampton, knowing that his wife had a great fancy for birds, had an aviary fitted up for her, and in about 10 months she ordered between 6 and 700 live birds, mostly foreign, consisting of love birds, cut throats, quakers, bishop birds, cardinals, black headed manakins, mountain lories, avadavats, and other kinds. This was too much for the curate; his income was only about £ 400 a year, and the wife's orders for birds exceeded £ 900. Such orders being out of the ordinary course, Lord Abinger thought the jury should require strict proof of the husband's authority, and here the inference of such authority was repelled by the wife's having a separate provision of about £380 a year, and by other circumstances. Freestone v. Butcher, 9 C. & P.
643, 38 Eng. Com. Law Rep. 269.
In another case, an action was brought to recover £ 5287 for articles of millinery, viz: bonnets, feathers, lace and ribands, supplied to the defendant's wife during part of the year 1843. She had a separate fortune; and the plaintiff having made enquiry was told she had £ 1100 a year. Her giving orders to such an extent went to shew that she was not acting as the husband's agent. It was considered that the tradesman who supplied these articles must have known that she was exceeding her husband's authority. Lane v. Ironmonger, 13 M. & W. 368.
In all this class of cases, the question is one of agency. When the wife is living with the husband and is supplied by him with necessaries, if he tells her that he will not permit her to have a particular kind of dress, she cannot bind him by ordering it. When she is sufficiently provided with clothes and orders more, there is no implied authority from the hus
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.