Wife compelled to band's house. decree for alimony, unless the alimony be duly paid (d). Neither will a mere assignment of personal property in trust for the separate use of the wife be sufficient to rebut the husband's liability, unless he shew that the trustees have acted under the deed, and paid the wife what she is entitled to under it (e). If, in point of fact, the wife be possessed of means sufficient for her adequate maintenance, though not coming from her husband, this is an answer to an action against him for the price of necessaries (f); but these means must be something absolute and certain-a mere pension, for instance, from the Crown, during pleasure, would not have that effect, such a pension not being "what any creditor of her's can be supposed to give her credit upon " (g). دو 14. If the husband expel his wife from his house, or by leave her hus- the cruelty of his conduct (h) compel her to leave it, "he sends with her credit for her reasonable expenses" (2). If a wife leave her husband's house in consequence of such acts of personal violence on his part as warrant her departure, it does not appear that the husband can at any subsequent time, however distant, put an end to his liability on her contracts for necessaries, by merely desiring (d) Hunt v. Blaquiere, 5 Bing. 550. (e) Burrett v. Booty, 8 Taunt. 343. (f) Clifford v. Laton, Moo. & M. 101; Ludlow v. Wilmot, 2 Stark. 86. (g) Thompson v. Hervey, 4 Burr. 2177. (h) What amount of cruelty is sufficient to justify the wife's leaving his house, so as to charge him for necessaries supplied to her, is often a question of great difficulty. "Where a wife's situation in her husband's house," said Lord Kenyon 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." This dictum evidently points to apprehension of personal danger, and does not seem to admit the construction put upon it by Gaselee, J., "I have always considered the law on this subject to be as laid down by Lord Kenyon, that if a man renders his house unfit for a modest woman to continue in it, she is authorised in going away." For a curious illustration of domestic cruelty, see Paterson v. Russell, 7 Bell's H. L. Cas. 337; S. C., 15 L. T. 537. (i) Raulyns v. Vandyke, 3 Esp. 251, per Lord Eldon. her to return home. It seems that "it is his duty to do some positive act to determine his liability;" and that "in default of an amicable arrangement," "if he be desirous of compelling the return of his wife, he must apply to the Spiritual Court for that purpose" (k). 15. On a separation a mensa et thoro, under the decree of an Ecclesiastical Court, which allows her alimony, the wife's contract for necessaries will not bind her husband, even if the alimony be insufficient: the decree for alimony and payment of the amount discharge him from further liability (); but a decree for alimony, to be paid from a time past, will not release him from liability for necessaries supplied during that period, "for at the time when credit was given, it was uncertain whether any or what alimony would be allowed (m).” 16. If the wife elope from her husband, and live in adultery, the husband cannot be charged upon her contracts for necessaries (n); and it makes no difference that the husband was the aggressor, and living in adultery with another woman, and that he had turned his wife out of doors at a time when there was no imputation upon her character (0). Neither is he liable when his wife elopes, though not with an adulterer nor in an adulterous manner (p). If a man, knowing his wife to have committed adultery, allow her to remain under the marital roof with children bearing his name, his liability continues though he be separated from her (q); and if he receive his wife back after having committed adultery, his liability revives; and if he turn her out again, he turns her out with credit for her necessaries (r). (k) Emery v. Emery, 1 Y. & J. 501. (1) Willson v. Smyth, 1 B. & Ad. 801. (m) Keegan v. Smith, 5 B. & C. 375. (n) Morris v. Martin, Str. 647; S. P., Id. 706. (0) Govier v. Hancock, 6 T. R. 603. (p) Child v. Hardyman, Str. 875, (q) Norton v. Fazan, 1 B. & P. 226, Effect of contract by a tic, &c. 17. A person lunatic or idiot, or otherwise mentally person luna incompetent, has no consenting mind, and cannot therefore, while in that state, enter into any binding contract. The legal incapacity, arising from lunacy, differs essentially from the other legal disabilities. The act of a lunatic is not necessarily void like the act of a married woman, or even voidable like that of an infant. Indeed it was at one time a settled maxim of our law, that a lunatic should not be allowed, as it was said, to stultify himself by setting up the defence of lunacy (s). This maxim, so irrational and unjust, has gradually given way before the progress of a more humane and enlightened spirit of jurisprudence, and may at length be considered to be exploded. The principle established by the modern cases seems to be, that where the contract is still in fieri, it will not be enforced against a party lunatic at the time it was entered into; but that where it has been executed wholly or in part, and the parties cannot be replaced in statu quo, and there has been no fraud or imposition on the lunatic, it will not be disturbed. Thus, in Baxter v. The Earl of Portsmouth (t), the defendant, between the years 1818 and 1823, had hired a landau and phaeton of the plaintiffs, and had thereby incurred the bill for which the action was brought. The carriages were constantly used by the defendant, and were suitable to his rank and condition. The defendant was afterwards found lunatic from a date over-reaching this period. "I was of opinion at the trial," said Abbott, C. J., "that the evidence given on the part of the defendant Executed contract. (s) As to the rule of the common law, the older authorities differ. According to Littleton, (s. 405), and Coke, (1 Inst. 247b; Beverley's case, 4 Rep. 123 b,) differing, however, from Fitzherbert, (Nat. Brev. 202,), no man could be allowed to stultify himself, and avoid his acts, on the ground of being non compos. It is immaterial, however, now, which of these is the correct statement of the common law, the modern authorities, as appears in the text, having placed the subject on a satisfactory footing. (t) 5 B. & C. 170; S. C., 2 C. & P. 178. was not sufficient to defeat the plaintiffs' action. It was brought to recover their charges for things suited to the state and degree of the defendant, actually ordered and enjoyed by him. At the time when the orders were given, Lord Portsmouth was living with his family; and there was no reason to suppose that the plaintiffs knew of his insanity. I thought the case very distinguishable from an attempt to enforce a contract not executed, or one made. under circumstances which might have induced a reasonable person to suppose the defendant was of unsound mind: the latter would be cases of imposition "(u). These principles were fully considered, and have been confirmed, in the late case of Molton v. Camroux (x). There it was sought, by the personal representatives of a lunatic, to recover back the money, which had been paid by him for the purchase of an annuity upon his life, from a society which had, at the time, no knowledge of his unsoundness of mind; the transaction being in the ordinary course of business, and fair and bonâ fide on the part of the society. The Court of Exchequer held on these facts that the money could not be recovered back, being of opinion, that, "when a person, apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property, which is fair and bonâ fide, and which is executed and completed; and the property, the subject matter of the contract, has been paid for and fully enjoyed, and cannot be restored, so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the lunatic himself or those who represent him;" and that this was the present case, for it was the purchase of an annuity which had ceased. 18. The same principles prevail in equity, and had, in (u) S. P. Brown v. Joddrell, 3 C. & P. 30; Dane v. Lady Kirkwall, 8 C. & P. 679. 24. (a) 2 Exch. 487; in error, 4 Exch. Contract en. forced against a lunatic, when. fact, been acted on, before they were recognised at law. In Niell v. Morley (y), Sir W. Grant refused to set aside an executed contract of purchase overreached by an inquisition, the transaction being fair, and the vendor having no notice of the lunacy; and in Price v. Berrington (2), an analogous case, Lord Truro recognised and acted on the principle of that decision, observing, "The contract has been long executed with the knowledge of the family; the estate has been enjoyed for twenty-seven years; and, without the discovery or occurrence of any new circumstances, the transaction, after that period, is sought to be avoided, the purchaser having acted bonâ fide, dealt with the estate believing it to be his own, and made important family arrangements upon that footing; the disturbance of which would, I think, be not only highly inconvenient but unjust." 19. But though equity will not set aside an executed contract merely on the ground of lunacy, it will not enforce a contract entered into with a party who was lunatic at the time, unless it can be shewn that, at the time of entering into the contract, the lunacy was suspended. Thus, in Hall v. Warren (a), the defendant, having entered into an agreement for the sale of an advowson to the plaintiff, was shortly after found a lunatic from an antecedent period, with lucid intervals. Sir W. Grant, in a suit to enforce the contract, directed an issue, whether the defendant was a lunatic at the execution of the agreement, and if so, whether the contract was executed during a lucid interval, the plaintiff being willing to take the title. His Honor said, "The law upon this subject is, that all acts done during a lucid interval are to be considered done by a person perfectly capable of contracting, managing, and disposing of his affairs at that period." "If there was a (y) 9 Ves. 478. (x) 15 Jur. 999. (a) 9 Ves. 605. |