*632] suitable to his degree and estate. This was laid down by Lord Holt in Etherington v. Parrot, Salk. 118, 2 Ld. Raym. 1006: and see Clifford v. Laton, 3 C. & P. 15 (E. C. L. R. vol. 14), M. & M. 101 (E. C. L. R. vol. 22); Ruddock v. Marsh, 1 Hurlst. & N. 601. This implied authority given by law to the wife is not affected by any private agreement between her and her husband, uncommunicated to the creditor: Johnston v. Sumner, 3 Hurlst. & N. 261." Merely telling the wife in private that she shall not pledge the husband's credit, will not destroy the general agency which the law gives her. In Reneaux v. Teakle, 8 Exch. 680, the presumption of authority was rebutted by proof that the wife had a sufficient allowance for dress, and consequently the articles supplied were not necessaries. In Reid v. Teakle, 13 C. B. 627, the matter was hardly contested. [BYLES, J. -It is enough for you to say that there is apparent authority derived from the husband, where the parties are living together, and the goods supplied are necessaries. WILLIAMS, J.-The case of an infant differs from that of a wife: in the former case, there is an incapacity to contract, except for necessaries: in the latter, it is a question of authority. WILLES, J.-The strongest case against you is Biffin v. Bignell, 7 Hurlst. & N. 877, where the Court of Exchequer held, that, where a husband consents to his wife living apart from him, on the terms that she shall accept an allowance, which is paid, she has no authority to pledge his credit, although the allowance is inadequate. I do not wish to be understood as making any remark upon that case.] There the husband and wife were living apart by mutual consent: it will not therefore govern this case. The principle of agency is distinctly affirmed in Johnston v. Sumner, 3 Hurlst. & N. 261. It was there distinctly held, that, during cohabitation, a wife has an implied authority as agent of her husband to pledge his credit for necessaries suitable to her station, *notwithstanding any private agreement *633] between them. Pollock, C. B., in delivering the judgment of the court, says: "We have not to interpret a positive law, but to ascertain the principle on which a husband has been held liable for goods furnished to his wife, and see how far, or whether at all, it applies to this case. Now, the principle seems to be merely that of agency: the wife is spoken of as the husband's agent, as having his authority; and the declaration is as upon a contract by him through his wife as an agent. The question to be resolved, then, is, had the wife authority to pledge the husband's credit? Now, authority may be express or implied, or arising from conduct, as, where one person holds out another in such a way as to induce a belief of authority; or there may be an authority from necessity, as in the case of a captain of a ship under certain circumstances. If a man and his wife live together, it matters not what private agreement they may make, the wife has all usual authorities of a wife." Bearing that principle in mind, there will be no difficulty in arriving at a correct conclusion in this case. As a general rule, an agent is authorized to do all that is usual in the business in which he is employed, and the principal is bound, although the agent may have disobeyed secret instructions. That principle was carried out in the case of Hawken v. Bourne, 8 M. & W. 703. Parke, B., there says: "One partner, by virtue of that relation, is constituted a general agent for another as to

all matters within the scope of the partnership dealings, and has communicated to him, by virtue of that relation, all authorities necessary for carrying on the partnership, and all such as are usually exercised by partners in that business in which they are engaged. Any restriction which, by agreement amongst the partners, is attempted to be imposed upon the authority which one possesses as a general [*634 *agent for the. other, is operative only between the partners themselves, and does not limit the authority as to third persons, who acquire rights by its exercise, unless they know that such restriction has been made." So, in the case of a warranty on the sale of a horse, given by the servant of a dealer.(a) Can the supposed revocation of the authority of the wife in 1851 affect the plaintiffs, to whom it was never communicated? The judgment of the Court of Exchequer in Johnston v. Sumner disposes of that question. In Holt v. Brien, 4 B. & Ald. 252 (E. C. L. R. vol. 6), Bayley, J., says: "If a husband makes no allowance to his wife, he gives her a general credit, and she may contract debts for the necessary supply of herself and family, for which he will ultimately be liable: but that proceeds on the ground that, in such a case, she is to be considered as his agent in contracting the debts. But, if he supplies her with a sufficient allowance for the purpose of paying for these necessary supplies, and the tradesman with whom she deals has notice of it, and afterwards trusts her, he does so at his own peril, and will only be entitled to recover by proving that in fact the allowance was not regularly paid." [ERLE, C. J.-That is a very important authority for you.] Ruddick v. Marsh, 1 IIurlst. & N. 601, is equally so. It was there held that a wife is the general agent of her husband with reference to such matters as are usually under the control of the wife: where, therefore, the wife of a labourer incurred a debt for provisions for the use of the family, the husband was held liable, though he had supplied his wife with money to keep the house. [BYLES, J.-The creditor not having notice of the fact?] Yes. Lord Holt, C. J., in Etherington v. Parrot, Salk. 118, says: While they cohabit, the husband shall answer all contracts of hers [the wife's] for necessaries; *for, his assent shall be presumed [*635 to all necessary contracts, upon the account of cohabiting, unless the contrary appear. But, if the contrary appear, as, by the warning in this case, there is no room for such a presumption." So, in Montague v. Benedict, 3 B. & C. 631 (E. C. L. R. vol. 10), 5 D. & R. 532, Bayley, J., says," Cohabitation is presumptive evidence of the assent of the husband; and, when such assent is proved, the wife is the agent of the husband duly authorized." The authority of a servant or housekeeper stands upon a totally different footing: her agency may be put an end to at any time: but the agency of the wife cannot be got rid of so long as the cohabitation continues. Much reliance was placed at the trial upon the defendant's evidence that he had supplied his wife amply according to his means. But he is not to be the judge of that: it is for the jury to say whether the allowance made is sufficient according to the position which the husband chooses to assume. Seeing the station this gentleman occupied, the jury were, it is submitted, well warranted in coming to the conclusion that the

(a) See the cases collected in Brady v. Todd, 9 C. B. N. S. 592 (E. C. L. R. vol. 99).

articles supplied here were necessaries, and that the allowance paid to the wife was under the circumstances insufficient.

Karslake, Q. C., and Bullen, in support of the rule. That which is said by the court in Reneaux v. Teakle, 8 Exch. 680, is sustained by the older authorities. It was there distinctly held that a husband living with his wife, and who makes her a sufficient allowance for dress, is not liable for dresses supplied to her without his knowledge; and the fact of the wife having, within a particular period, purchased various articles of dress of different tradesmen, is admissible in evidence to rebut the presumption arising from cohabitation of an implied authority to contract for necessary clothing. It was contended there, as it has been contended here, that "a wife who *636] is living with her husband has an implied authority to pledge his credit for articles suitable to her station." But Martin, B., said: "That is only a presumption arising from cohabitation, and may be rebutted. The question is one of agency. If a husband tells his wife that he will not permit her to have a particular kind of dress, she cannot bind him by ordering it." And Pollock, C. B., says: "The apparent result of the authorities is, that, if a tradesman trusts a married woman, he must take his chance of payment." That is quite consistent with the three leading cases of Manby v. Scott, 1 Sid. 109, Montague v. Benedict, 3 B. & C. 631 (E. C. L. R. vol. 10), 5 D. & R. 582, and Seaton v. Benedict, 5 Bingh. 28 (E. C. L. R. vol. 15), 2 M. & P. 66. In Bainbridge v. Pickering, 2 Sir W. Bl. 1325, Gould, J., says, "If an infant lives with her parent, who provides such apparel as appears to the parent to be proper, so that the child is not left destitute of clothes or other real necessaries of life, I apprehend that the child cannot bind herself to a stranger even for what might other wise be allowed as necessaries; for, no man shall take upon him to dictate to a parent what clothing the child shall wear, at what time they shall be purchased or from whom." The proper question for the jury in these cases is, whether upon the facts proved the wife had any authority, express or implied, to bind her husband by the contract: Reid v. Teakle, 13 C. B. 627 (E. C. L. R. vol. 80). [BYLES, J.-In Reneaux v. Teakle, 8 Exch. 680, there was a sufficient supply by the husband: but in Reid v. Teakle, there was no evidence of that.] The facts, as set out in the special verdict in Manby v. Scott, were these-Dame Scott, wife of the defendant, Sir Edward Scott, left her husband against his will, and after a time she made demand of cohabitation with her husband, but he refused to receive her and *637] during the time she was thus absent from her husband he prohibited several people from supplying her with goods or wares of any kind, and, if they should be supplied, declared that he would not pay for them, and, among others, he specially prohibited the plaintiff, who nevertheless sold the said dame yards of silk and velvet to the amount of 401. (for which this action was brought), which the jury found were necessaries suitable to the degree of her husband. The majority of the judges held the defendant not liable: and Wyndham, J., says,-" If the husband shall be bound by this contract, many inconveniences must ensue.. 1. The husband will be accounted the common enemy; and the mercer and the gallant will unite with the wife, and they will combine their strength against the

husband: so it may be said of them as it was by Mowbray, J., 39 Ass. 1, in another case,- We see the wife and the defendant here of one mind, to the prejudice of the husband.' 2. The wife, having the goods, will be more violent in enforcing prosecution than our law permits, an evil which our law guards against. 3. Wives will be their own carvers, and, like hawks, will fly abroad and find their own prey. 4. It shall be left to the pleasure of a London jury to dress my wife in such apparel as they think proper. 5. Wives who think what they have insufficient, will have it tried by a mercer whether their dress is not too mean; and this will make the mercer judge whether he will dispose of his own goods or not." The judgment of the Court of Queen's Bench in Montague v. Benedict, and that of this court in Seaton v. Benedict, clearly show that it is only a question of agency.. Johnston v. Sumner, 3 Hurlst. & N. 261, has been cited for the purpose of showing that a private arrangement between the husband and the wife cannot be recognised. If it goes to that extent, the case certainly is opposed to all the dicta above referred to, and is [*638 far too uncertain a guide. (a) Atkyns v. Pearce, 2 C. B. N. S. 763 (E. C. L. R. vol. 89), is somewhat applicable. There, A. went abroad in 1852, leaving his wife and three children here, with (what the jury found to be) a sufficient provision for their proper maintenance in his absence: on his return in 1856, he found that his wife had formed an adulterous connection with another man, who lived with her, and passed by her husband's name, and he immedi ately removed his children. This court held, that, under these circumstances, A. was not liable for medicine and attendance furnished for his children at his wife's request, although the plaintiff was not aware of the state in which she was living at the time. The facts were held to rebut the implication of agency. [WILLES, J.—In Norton v. Fazan, 1 B. & P. 226, which is referred to in that case, the wife was living in the house where the husband left her, and he made no provision for her: and there it was held that he was liable for necessaries supplied to her by one who had no notice of the circumstances under which the wife was living.] Upon grounds of public policy, it is submitted, the plaintiff's in this case ought not to be allowed to recover. Cur, adv. vult.

ERLE, C. J., now delivered the judgment of himself, Williams, J., and Willes, J. :—

This was a rule for setting aside the verdict for the plaintiffs, and entering it for the defendant.

The action was for goods sold. Upon the trial the plaintiffs raised a presumption of the defendant's liability by showing that the goods were ordered by his the defendant's wife, while living with him, for the use of herself and children. The defendant rebutted this [*639 presumption by showing that he had forbidden his wife to take up goods on his credit, and had told her that if she wanted money to buy goods, she was to apply to him for it: and there was no evidence that she had so applied and been refused. The plaintiffs proved, in reply, that the goods were necessaries suitable to the estate and degree of the defendant; that the wife had 657. per annum to her separate use; and that the defendant had promised to allow her 501. per annum (a) See the remarks upon this case in 2 Smith's Leading Cases, 5th edit. 423, 424.

in addition, but had not paid it regularly, and had not supplied her with such necessaries or with money sufficient for the purchase thereof. The plaintiffs also showed that they had received no notice of the defendant's prohibition to his wife against taking up goods on his credit.

These facts are in effect found by the jury: and the question is raised whether the wife had authority to make a contract binding on the husband for necessaries suitable to his estate and degree, against his will and contrary to his order to her, although without notice of such order to the tradesman.

Our answer is in the negative. We consider that the wife cannot make a contract binding on her husband, unless he gives her authority as his agent so to do. We lay down this as the general rule, premising that the facts do not raise the question what might have been the rights of the wife, either if she was living separate without any default on her part towards her husband, or if she had been left destitute by him.

The whole law upon this subject is well collected in the note to Manby v. Scott (1 Siderfin 109), 2 Smith's Leading Cases 385 et seq. It is there shown that the general rule is as above stated; and that, where a plaintiff seeks to charge a husband on a contract made *640] *by his wife, the question is, whether the wife had his authority, express or implied, to make the contract; and that, if there be express authority, there is, no room for doubt, and, if the authority is to be implied, the presumptions which may be advanced on one side may be rebutted on the other; and, although there is a presumption that a woman living with a man, and represented by him to be his wife, has his authority to bind him by her contract for articles suitable to that station which he permits her to assume, still this presumption is always open to be rebutted. So was the decision of the majority of the judges in Manby v. Scott; and to that effect are the words of Lord Holt in Etherington v. Parrot, 2 Ld. Raym. 1006, 1 Salk. 118: and this doctrine has been sanctioned in the cases which have followed. In supporting this conclusion, our decision does not militate against the rule that the husband, as well as every principal, is concluded from denying that the agent had such authority as he was held out by his principal to have, in such a manner as to raise a belief in such authority, acted on in making the contract sought to be enforced. Such liability is not founded on any rights peculiar to the conjugal relation, but on a much wider ground.

The plaintiffs contend that the wife has the power above described; and they rely on observations made by judges both in Manby v. Scott and in some later cases: but the answer in point of authority is, that the adjudications have not supported the observations on which they rely. In Manby v. Scott, those judges were in the minority; and the observations referred to in later cases have not been the ground of any decision. The weight of authority seems to us to be against the plaintiffs.

Then, if we resort to considerations of principle, they lead to the same conclusion.

*It is not our province here to inquire whether it is advisa

*641] ble to give to the wife greater rights. But, taking the law to