room for such a presumption." See 1 Bac. Abr. 296; Seaton v. Benedict, ubi supra; Holt v. Brien, 4 B. & A. 252, where it was held that if a husband, not separated from his wife, make her an allowance for necessaries during his temporary absence, and a tradesman, knowing this, supply her with goods, the husband is not liable. A fortiori, where the tradesman, although he knew the wife to be a married woman, elected to give credit to her, not to her husband, the latter is not liable to him. Bentley v. Griffin, 5 Taunt. 356.

The next class of cases is that in which the wife, at the time of making the contract, is living apart from the husband. We have just seen that, during the cohabitation, the presumption is, until the contrary be shown, that she has authority to contract for necessaries. But in the class of cases we are now considering, the presumption is the other way; and it lies on the creditor to show that she is living apart from the husband under such circumstances as give her an implied authority to bind him. And this is just; for, when a tradesman sees two persons living together as man and wife, he naturally infers that there is that degree of confidence and affection subsisting between them, which would induce the one not to contract without authority, and the other to confer such authority for necessary purposes. But when a tradesman finds a woman living alone, the presumption is quite the other way; and he must naturally suppose that she is either a feme sole, or, if he know her to be married, that she is not on such terms of confidence and affection with her husband as could induce him to entrust her with authority to bind him by her contracts; and, therefore, in Mainwaring v. Leslie, M. & M. 18, where goods, the price of which was sued for, were ordered by, and delivered to, the defendant's wife, but she was living separate from her husband, and no evidence was given of the circumstances or cause of the separation, the Lord C. Justice Abbott nonsuited the plaintiff, saying, "The plaintiff must be called where the wife is not living with the husband, there is no presumption that she has authority to bind him, even for

:

necessaries suitable to her degree in life; it is for the plaintiff to show that, under the circumstances of the separation, or from the conduct of the husband, she had such authority."

From the rule thus laid down by Lord Tenterden, it will be seen that, as the presumption in favour of the husband's liability, arising from cohabitation, is liable to be rebutted, so also is the presumption against his liability, arising from the absence of cohabitation. It remains, therefore, to inquire in what cases the husband will be liable on the wife's contracts for articles suitable to her degree in life, though she be not cohabiting with him.

On this subject the rule was very clearly laid down by Lord Mansfield, in Ozard v. Darnford, S. N. P. 269, viz. that "where husband and wife live separate, the person who gives credit to the wife is to be considered as standing in her place, inasmuch as the husband is bound to maintain her, and the spiritual court will compel him to grant her an adequate alimony. But if she elope from her husband, and live in adultery, or if, upon separation, the husband agrees to make her a sufficient allowance, and pays it, in either of those cases the husband is not liable, because, in the former case, she forfeits all title to alimony, and in the latter, has no further demands on her husband. And as, in all cases, the creditor is to be considered as standing in the wife's place, it imports him, when the wife lives apart from her husband, to make strict inquiry as to the terms of separation; for in such cases he must trust her at his peril." In that case the defendant and his wife had separated, and the defendant had agreed to make her an allowance, but had not paid it there was, therefore, a verdict against him. The allowance, within the above rule, must be sufficient according to the wife's degree; and its sufficiency is a question proper for the consideration of the jury. Hodgkinson v. Fletcher, 4 Camp. 70; Ludlow v. Wilmot, 2 Stark. 86. It must also, as we have seen, be paid; and if unpaid, the wife, although the maintenance be secured by deed, is not put to her remedy on that, but may bind the husband by contracting. Nurse v. Craig, 2 New. R. 148. Nor is his liability

destroyed by a decree for alimony, unless the alimony be duly paid. Hunt v. De Blaquière, 5 Bingh. 550.

From the above it will appear, that if the husband and wife separate by mutual consent, the wife has an implied authority to bind the husband for articles suitable to her degree, unless she have an adequate allowance, and unless that allowance be duly paid to her. But this implied authority exists only in cases of such mutual consent to live apart; for where a wife, in pursuance of invalid articles of separation, quitted her husband's house against his will, and lived apart, he being anxious to receive her into his house, and provide for her, the court was of opinion that he was not liable to her tradesmen even for necessaries; and seemed to think that he would not have been so, even had the articles been valid ones. Hindley v. Marquis of Westmeath, 6 B. & C. 200: see also Horwood v. Heffer, 3 Taunt. 421; sed vide Houliston v. Smyth, 3 Bingh. 127; Emery v. Emery, 1 Y. & J. 501.

There are two cases for which this is, perhaps, the fittest place, and which seem at first sight somewhat anomalous; those, viz. of Harrison v. Hale, 1 M. & Rob. 185, and Hornbuckle v. Hornbury, 2 Stark. 177, in both of which a husband was held liable, on an express promise, to pay debts of his wife contracted during separation, though he allowed and paid her maintenance. It is sensibly remarked, in a note of the learned reporter's, that it is difficult to conceive how this promise could be treated as anything save nudum pactum, unless, indeed, upon the ground that it constituted in itself strong evidence that the maintenance allowed the wife was insufficient.

Where, therefore, the husband and wife separate by mutual consent, the husband will be liable, unless he allow and pay her a sufficient maintenance. The next case of his liability is, that in which he either unjustly expels his wife from the marital roof, or (which amounts to the same thing in law as well as reason) forces her to abandon it by his cruelty. "If a man," said Lord Eldon, in Rawlyns v. Vandyke, 3 Esp. 251, "will not receive his wife into his house, he turns her out of doors, and if he does so, he sends with her credit

" Where a

for her reasonable expenses." wife's situation in her husband's house," said Lord Kenyon, C. J., in Hodges v. Hodges, 1 Esp. 441, "is rendered unsafe from his cruelty or ill-treatment, I shall rule it to be equivalent to his turning her out of the house; and that the husband shall be liable for necessaries furnished to her under these circumstances." See, in support of this doctrine, Thompson v. Hervey, 4 Burr. 2177; Houliston v. Smyth, 3 Bingh. 127; Boulton v. Prentice, Str. 1214; Aldis v. Chapman, S. N. P. 8th ed. 272, where the wife left the husband's house on account of his having introduced a prostitute. In another case, this circumstance, coupled with others of great cruelty, were held not sufficient to invest her with an implied authority to bind the husband, after escaping from his house. Horwood v. Heffer, 3 Taunt. 421. But this case is contrary to some of those above cited; and, quære, whether it can be now treated as law. It will be observed, that in the above cases, viz. where the husband and wife separate by consent, and he neglects to pay her an adequate sum for maintenance, or where he turns her out of doors, and treats her with such cruelty that she is forced to leave him, her right to bind him for her necessary expenses does not rest on a mere primâ facie presumption of authority, subject to be rebutted, but on an irrebuttable presumption of law. This was the point decided in Boulton v. Prentice, Str. 1214, the best report of which is to be found in Mr. Selwyn's Nisi Prius, 8th ed. 272. In that case, the husband had driven his wife out of the house by cruelty: the plaintiff was a person whom, during the cohabitation, he had expressly forbidden to trust his wife, but who had, after the separation, supplied her with necessaries, for which he sued the husband. It was objected to his claim, that the credit given to the wife is grounded on the supposed assent of the husband, which assent cannot be supposed where there is an express prohibition. But the court resolved, that "though the prohibition took effect and continued in force during the cohabitation, yet such prohibition could not, after the cohabitation ceased, either extinguish or lessen the credit to which the wife was by law

But,

if he pay the alimony, even though that alimony be insufficient, for the ecclesiastical court is to judge of its adequacy; and a court of law cannot entertain the question, even though the decree have, in point of form, ceased to be operative, provided it is renewable on application. Wilson v. Smyth, I B. & Ad. 801. if the alimony be not paid, the wife's power will revive; Hunt v. De Blaquière, 5 Bingh. 550, and so pending the suit; nor does a decree for alimony, to be paid from a time past, remove his liability for necessaries supplied to her during that past time. Keegan v. Smith, 5 B. & C. 375.

However, as has been already said, where the husband and wife are living separate, the presumption is primâ facie against her power to bind him; and, unless the plaintiff can remove that presumption, by showing some justifiable cause for her living apart, he will of course be defeated. See Reed v. Moore, 5 C. & P. 200; Mainwaring v. Leslie, M. & M. 18, 2 C. & P. 507. "The mischief," said Lord Tenterden in the last-named

case,

"of allowing the ordering of goods by a married woman living apart from her husband, to be prima facie evidence to charge him, would be incalculable.” A fortiori, where it appears that the wife's own misconduct is the cause of the separation, she carries with her no implied authority to bind the husband. Thus, where he has turned her away for adultery, Ham v. Toovey, S. N. P. 268; or where she has eloped with an adulterer, Morris v. Martin, Str. 647; Mainwaring v. Sands, ib. 706; or even where her husband, who was himself living in adultery with another woman, turned her out of doors, and she afterwards committed adultery. Govier v. Hancock, 6 T. R. 603. Nor where she elopes, though she has not committed adultery. Child v. Hardyman,

Str. 875. But where a man, knowing his wife to have committed adultery, allowed her to remain under the marital roof, with children bearing his name, his liability continued. Norton v. Fazan, 1 B. & P. 226. And the husband's liability revives, if he take the adulteress back into his house; and if he turns her out again, he turns her out with credit for her necessaries. Harris v. Morris, 4 Esp. 41.

Lastly, as the wife's power to bind the husband, in consequence of the relation that subsists between them, is only in respect of necessaries suitable to her condition, the question frequently ariseswhat are necessaries? This, it is obvious, is a proper question for a jury, and the answer will, of course, much vary according to the wife's station in life. See Hunt v. De Blaquière, 3 M. & P. 108; 5 Bingh. 550. The costs of articles of the peace exhibited against himself, in consequence of his outrageous conduct, were in one case, recovered against the husband as necessaries. Shepherd v. Mackoul, 3 Camp. 26. See Williams v. Fowler, M'Ciell. & Y. 269. But a person who advances money to her to conduct the prosecution of her husband for assaulting her, cannot recover it as necessaries, for it cannot be necessary for her safety to prosecute him; since, by having him bound over to keep the peace, she may secure herself against a repetition of ill-treatment. Grindell v. Godmond, 5 Ad. & Ell. 755. Nor are the costs of a counterpart of the deed of separation necessaries. Ladd v. Lynn, 2 Mee & W. 265. See further on this subject, Skinner, 349; Harris v. Lee, 1 P. Wms. 482; and Ewers v. Hutton, 3 Esp. 255; in which Lord Eldon told the jury, that their verdict must be regulated by the husband's circumstances, not by a regard to the amount of fortune brought him by the wife.