« ForrigeFortsett »
before marriage, and the husband takes and appropriates all her personal property to himself, and the wife dies before the creditors have collected their debts, the hus- band is no longer liable, and the creditors of the wife are left without remedy. If the husband himself dies before the debts are collected, his representatives are not liable; and though the wife remains liable after her husband's death, for her former debts remaining unpaid, she may have no property to pay them. The answer to this objection is attempted by Lord Macclesfield, in the Earl of Thomond v. Earl of Suffolk* It may be hard, he observes, that the husband should be answerable for the wife's debts, when he receives nothing from her; but we are to set off against that hardship, the rule, that if the husband has received a personal estate with the wile, and happens not to be sued during the coverture, he is not liable. He runs a hazard in being liable to the debts much beyond the personal estate of the wife; and in recompense for that *hazard, he is entitled to *145 the whole of her personal estate, though far exceeding the debts, and is discharged from the debts as soon as the coverture ceases. In Heard v. Stanford, there was a strong effort made before Lord Ch. Talbot, to charge the husband, after the wife's death, with a debt of hers dum sola, to the extent of what he had received from her, for she happened to bring a large personal estate to her husband. The injustice of the case was pressed upon the court, for upon the rule as it stood, a feme sole might be worth 10,000/., and owe 1,000/., and marry and die, and the husband might appropriate the 10,000/. to his own use, and not pay one farthing of the debt. Lord Nottingham was so provoked at the hardship of the rule, in a case in which the wife brought a large portion to her husband, and died, and when the husband continued in possession of the goods, and refused to pay
the very debt contracted by the wife for the goods, that he declared he would alter the law. But Lord Talbot said, that nothing less than an act of parliament could alter the law; and the rule was fixed, that the husband was liable to the wife's debts only during the coverture, unless the creditor recovered judgment against him in the wife's lifetime, and that only the wife's choses in action not reduced to possession in her lifetime, would be assets in the husband's hands, when they come to him. as her administrator. If relief ought to be given against the husband, because he received sufficient property with the wife, then by the same reason, if the wife had brought no fortune to her husband, and judgment was recovered against him during coverture, relief ought to be afforded to the husband against this judgment after his wife's death. He declared, that the rule could not be disturbed by a court of equity; and it has continued unaltered to this day. The husband is liable, not as the debtor, but as the husband. It is still the debt of the wife, and if
she survives her husband, she continues personally *146 liable.* *It has also been held by the K. B. in
Miles v. Williams,b that the debts of the wife dum sola, a», well as the husband's debts, are discharged by the bankruptcy of the husband. It is clear, that a certificate of bankruptcy discharges him; and Lord Ch. J. Parker thought, that the wife was also discharged for ever, and not merely during the husband's life, though on that point, he said, it was not necessary to give a decided opinion.
(2.) To maintain her.
The husband is bound to provide his wife with neces
* Woodman v. Chapman, 1 Campb. N. P. 189.
b 1 P. Wms. 249. It was decided, in Lockwood v. Salter and wife, 2 Neville <J. Manning's Rep. 255, that the wife's debts dum sola, were extinguished by the husband's discharge as a bankrupt or insolvent. But see contra, supra, p. 133, Mallory v. Vanderheyden, the rule in equity, and which is the correct rule, though the rule at law is otherwise.
saries suitable to her situation, and his condition in life; and if she contracts debts due for them during cohabitation, he is obliged to pay those debts; but for anything beyond necessaries he is not chargeable. He is bound by her contracts for ordinary purchases, from a presumed assent on his part; but if his dissent be previously made known, the presumption of his assent is rebutted. He may still be liable, though the seller would be obliged to show, at least, the absolute necessity of the purchase for her comfort.* If the tradesman furnishes goods to the wife, and gives the credit to her, the husband is not liable, though she was at the time living with her husband.0 Nor is he liable for money lent to the wife, unless his request be averred and shown.0 So, if the husband makes a reasonable allowance to the wife for necessaries during his temporary absence, and a tradesman, with notice of this, supplies her with goods, the husband is not liable, unless the tradesman can show, that the allowance was not supplied."1 If the husband abandons his wife, or they separate by consent, without any provision for her maintenance, or if he sends her away, he is liable for her necessaries, *and he sends credit with *147 her to that extent.0 But if the wife elopes, though
» Etherington v. Parrot, 1 Sail: 118. 2 Lord Raym. 1006, S. C. Mon. tague v. Benedict, 3 B. <$- Cressw. 63.
b Bentley v. Griffin, 5 Taunton's Rep. 356. Metcalfe v. Shaw, 3 Campb. 28.
« Stone v. Maenair, 7 Taunton, 432.
d Holt S. Brien, 4 Barnw. <J- Aid. 252. If there be an amicable separation of husband and wife and he furnishes her with necessaries according to the agreement, he is not liable for articles furnished to her by a tradesman, though he had no notice, for the moral obligation on his part ceases. Carey v. Padon, 2 Ashmead, 140. Mr. Wallace, one of the learned editors to the American edition of Smith's Leading Cases, in Law Library, N. S., vol. 25, says that this case in Pennsylvania is the ablest case on the sobject to be found in the American books."
» Walker v. Simpson, 7 Watts $ Serg. 83.
it be not with an adulterer, he is not chargeable even for necessaries. The very fact of the elopement and separation, is sufficient to put persons on inquiry, and whoever gives the wife credit afterwards, gives it at his peril. The husband is not liable unless he receives his wife back again.* The duties of the wife, while cohabiting with her husband, form the consideration of his liability. He is accordingly bound to provide for her in his family; and while he is not guilty of any cruelty, and is willing to provide her a home, and all reasonable necessaries there, he is not bound to furnish them elsewhere. All persons supplying the food, lodging and raiment, of a married woman living separate from her husband, are bound to make inquiries, and they give credit at their peril.b
It has been a question, whether, if the wife elopes, and repents and returns again, and her husband refuses to receive her, he is then bound for her necessaries. The opinion of Lord Ch. J. Raymond, in Child v. Hardyman,0 seems to be, that he would be liable; for he says, that if the husband should refuse to receive the wife, "from that time it may be an answer to the elopement." Lord Eldon subscribed to that case, and the same doctrine has been declared in New-York.d but it does not apply where the wife had committed adultery.6 It has also been a debateable point whether, if the husband should *148 refuse to provide necessaries for his wife and *pro
hibit a particular person, or any person, from trusting her, and she should, notwithstanding the prohibition, be trusted with necessaries suitable to her age, and degree, and rank in life, the law would then, notwithstanding such prohibition, raise an assumpsit against the husband. In the case of Manby v. Scott, in the reign of Charles II.,* which was argued many times at the bar and then in the exchequer, by all the judges of England, it appeared to be the opinion of a large majority of the judges, that the husband could not be charged even with the necessaries for the wife, against his express previous prohibition to trust her, and that her remedy would be in the spiritual court for alimony. But the minority of the court held, that the husband would be chargeable from the necessity of the case; and that the husband cannot deprive the wife of the liberty which the law gives her of providing necessaries at his expense, for her preservation. This opinion of the minority seems to be the received law at this day, and the extreme rigour of the old rule is relaxed. The husband is bound to provide his wife with necessaries, when she is not in fault, from a principle of duty and justice; and the duty will raise an assumpsit independent of his consent, and when no consent can be inferred, as in the case of a refusal on his part to provide her with necessaries. If he turns her out of doors, and forbids all mankind from supplying her with necessaries, or if she receive such treatment as affords a reasonable cause for her to depart from his house, and refuse to cohabit with him, yet he will be bound to fulfil her con racts for necessaries, suitable to her circumstances, and those of her husband.a The
• 1 Mod. Rep. 124. 1 Sid. Rep. 109. 1 Ler. Rep. 4, S. C.; and the case is reported at large with learned notes in Smith's Leading Cases in Law Library, N. S., voL 28, in a new translation from the original French in Siderin, by J. G. Phillimore, Esq. It is one of the most interesting cases, and in ability and learning the discussion is equal to any in the English law.
i Honliston v. Smyth, 3 Bingham's Rep. 127. In this case the court