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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.
9. Whether at common law there was a liability for support of one's child, parents or grand-parents. tute of 43 Eliz. c. 2, § 7, and statute of Virginia.
Of the sta
It has been argued that by the common law a parent is bound to maintain his deserted legitimate child; but in the case in which it was so argued the question did not arise; for in that case there was no proof of desertion; it was a case in which the father was contemplating providing for the child by placing it in a foundling hospital, when the child's grandmother applied to have the child delivered up to her, and took it upon an implied undertaking that the father should be at no expense for its maintenance. Urmston v. Newcomen, 6 Nev. & Man. 454, 4 Adol. & El. 899, 31 Eng. Com. Law Rep.
Whatever moral obligation there may be on a man to take care of his child, or of his father, mother, grand-father or grand-mother, it is now clearly established that at common law that moral obligation does not impose a legal liability on a father to support a child, Mortimore v. Wright, 6 M. & W. 488; or on a child to support his parents, Edwards & wife v. Davis, 16 Johns. 285.
When Sir Wm. Blackstone wrote the passage in 1 Bl. Com. 448, 9, he had in view the statute of 43 Eliz. c. 2, § 7, which enacted "that the father and grand-father and the mother and grand-mother and the children of every poor, old, blind, lame and impotent person, or other person not able to work, being of a sufficient ability, shall, at their own charges relieve and maintain every such poor person" in a certain manner and according to a prescribed rate. The statute extends no farther than the law of nature went before. Under it, it has been held that a husband is not obliged to provide for his wife's mother, though he had a good fortune with his wife and the mother is poor. Rex v. Munday, 1 Str. 190. It was considered inconvenient if the wife should have children by a former husband. S. C. Fort. 303. The statute of Elizabeth only extends to natural relations. The father-inlaw is not obliged to maintain his daughter-in-law. King v. Bonoier, 2 Ld. Raym. 1454. And the husband is not liable for the expenses of maintaining the wife's child by the former husband. Tabb &c. v. Harrison &c. 4 T. R. 118; Billingsley v. Crotchet, 1 Brown's C. R. 268; Cooper v. Martin, 4 East 82. The same construction is given to the New York statute, which is a transcript of that of 43 Eliz. c. 42, § 7. Gay v. Ballou, 4 Wend. 403. A fortiori the husband is not
bound to support a bastard child of his wife or a child of such bastard. Menden v. Cox, 7 Cow. 235.
10. Right of action against father for support of child rests on his contract.
When a father suffers his children to live away from him— with their mother-he may thereby constitute her his agent and authorize her to contract debts for their clothing and other necessaries. Rawlyns v. Van Dyke, 3 Esp. 133. Although a man could not be compelled to provide for his wife's children by a former husband, yet if he take them into his family, he may be regarded then as standing as to them in loco parentis; and if after adopting them he go abroad and leave them in the care of his wife, he may be bound by her contracts made for their maintenance and education. Stone v. Carr, 3 Esp. 1. The father has been held liable for the nursing and board of his child though illegitimate, when he adopted it as his own. Hesketh v. Gowing, 5 Esp. 131; Nichole v. Allen, 3 C. & P. 36, 14 Eng. Com. Law Rep. 198. In one case in which he consented to pay an annual sum for its support, it was said he must continue to do so or provide for the child at his own expense or give the most distinct notice of his intention to pay such annual sum no longer. Cameron v. Baker, 1 C. & P. 268, 11 Eng. Com. Law Rep. 388. In a subsequent case wherein such notice was given, it was considered that the by-gone payments were merely voluntary, and that the defendant was not bound to continue them longer than he thought proper. Furillio v. Crowther, 7 Dow. & Ry. 612, 16 Eng. Com. Law Rep. 302. In another case wherein there was no such notice, there was a judgment against the father for the child's board and lodging. Nichole v. Allen, 3 C. & P. 36, 14 Eng. Com. Law Rep. 198, 9.
But no one is bound to pay another for maintaining his children, either legitimate or illegitimate, unless he has entered into some contract to do so. Seaborne v. Maddy, 9 C. & P. 497, 38 Eng. Com. Law Rep. 194; Angel v. McLellan, 16 Mass. 31. A father who gives no authority and enters into no contract, is no more liable for goods supplied to his son, than a brother or an uncle or a mere stranger would be. Mortimore v. Wright, 6 M. & W. 486. The law was not settled so clearly at the time of Simpson v. Robertson, 1 Esp. 17, and Ford v. Fothergill, Id. 211, as it has been since. It is now well established that a father is not bound by the contract of his son, unless either an actual authority be proved, or circumstances appear from which such an authority may
be implied. Blackburn v. Mackey, 1 C. & P. 1; Fluck v. Tollemache, Id. 5, 11 Eng. Com. Law Rep. 295, 6; Rolfe v. Abbott, 6 C. & P. 286, 25 Eng. Com. Law Rep. 400. Notwithstanding what is said by the supreme court of New York, in Valkinburgh v. Watson &c. 13 Johns. 480, and by Chancellor Kent, in 3 Kent's Com. 191, and by Chancellor Walworth, in Ryder's case, 11 Paige 188, it may be regarded as now the rule in New York, as well as England, that without some contract, express or implied, a father is not liable even for necessaries supplied to his son. Raymond v. Loyl, 10 Barbour 483; Chilcott v. Trimble &c. 13 Id. 502. The rule is the same in Vermont. Varney v. Young, 11 Vermont 258; Gordon v. Potter, 17 Id. 348. If a son has purchased arti cles necessary for him, and suitable to that situation in which his father placed him, a jury may sometimes infer that the order was given by the assent and with the authority of the father. Baker v. Keen, 2 Stark. 501, 3 Eng. Com. Law Rep. 449; Law &c. v. Wilkin, 6 Adol. & El. 718, 33 Eng. Com. Law Rep. 193. But such inference should never be made when to make it would be inconsistent with the rule that the law does not authorize the son to bind his father by his contracts. A party who has contracted with the son, intending to trust to him for payment, cannot recover the debt from the father, when there is a total absence of authority in the son to contract on the part of the father. Shelton v. Springett, 11 Com. Bench (2 J. Scott) 452, 73 Eng. Com. Law Rep. 452, 20 Eng. Law & Eq. 281. If it be asked is then the son to be left to starve, the answer, says Maule, J., is, he must apply to the parish, and they will compel the father, if of ability, to pay for his son's support. People, he remarks, are very apt to imagine that a son stands in this respect upon the same footing as a wife. But that is not so. S. C.
In Virginia, there is besides the common law rule, a further provision made by statute 1838, p. 29, ch. 18, § 1; 1841, 2, p. 21, ch. 25. From these statutes was taken the following provision in the Code of 1849, p. 578, ch. 142, § 1:
If any money be lent or advanced, or any thing be sold or let to hire on credit, to or for the use of any student or pupil, under twentyone years of age, at the Virginia military institute, university of Virginia, or any incorporated college in this state, without the previous permission in writing of his parent or guardian, or the authorized offcers of such institution, nothing shall be recovered therefor, and there shall moreover be forfeited to the institution twenty dollars, and the amount or value of such money or other thing. Where such selling, letting, lending or advancing is by an agent, such forfeiture shall be by his principal, unless the principal shall, within ten days after he