fact, to pledge his credit by employing the plaintiff?" But his Lordship declined to put the question.

The learned Judge then directed a verdict to be entered for the plaintiff for the full amount claimed, and reserved leave to the defendant to move to have the verdict entered for him, if the Court should be of opinion that the question was material, and ought to have been put; the Court to have power to draw inferences of fact.

Digby Seymour, Q.C., in this Term, obtained a rule calling on the plaintiff to show cause why the verdict should not be set aside, and a verdict entered for the defendant, on the ground that the Judge ought to have directed the jury, that if Mrs. Grady had not her husband's authority, in fact, to pledge his credit by employing the plaintiff, they were bound to find for the defendant. The rule was also for a new trial, on the ground that the verdict was against the weight of evidence.

Denman, Q.C., and Pollock now showed cause:

Reliance will be placed by the other side on what took place on the 29th May; but the defendant's version of that event is contradicted by the plaintiff, and by the defendant's wife. It cannot be affirmed, therefore, that the plaintiff had express notice that the defendant would not be liable for his wife's contracts. Then, as to the presumption that is to be made when husband and wife are living together, it is clear that the wife must be considered as having authority to bind her husband, until the contrary is shown. There is nothing in the case of Jolly v. Rees (1) inconsistent with the right of the plaintiff to maintain this action. It is true that in the notes to Manby v. Scott (2) the word "cohabitation" is used, but the term is applicable here; for although the parties were occupying separate rooms, they were, in fact, in the same house. That is a sufficient cohabitation from which to infer agency. Nor can a private arrangement between husband and wife affect the implied authority of the wife, unless such arrangement is communicated to the creditor: Johnstone v. Sumner (3). The learned Judge ruled rightly in holding that there was no evidence of the withdrawal of the husband's authority during cohabitation; and the implied authority not having been rebutted, the plaintiff is clearly entitled to his verdict. As to the claim for the period after the wife was turned out of doors, the jury have found that she was left without sufficient. to pay for medical attendance; there is no doubt, therefore, that for this portion of the account the defendant is also liable.

(1) 137 R. R. 688 (15 C. B. N. S.

628; 10 Jur. N. S. 319).

(2) 2 Sm. L. C. 620, 5th ed.

(3) 117 R. R. 679 (3 H. & N. 261; 4 Jur. N. S. 462).

HARRISON

v.

GRADY.

HARRISON

v.

GRADY.

[ *142]

Digby Seymour, Q.C., and A. Russell, in support of the rule: The existence of a presumption of authority implies that you may give evidence to rebut the presumption. The decision in Jolly v. Rees was founded on this-that the relation between husband and wife, in respect of orders given by her, was one of agency; and, in the judgment of the COURT, it was said, in effect, that it would be a solecism not to allow of rebutting evidence. *

ERLE, Ch. J.:

I am of opinion that this rule should be discharged. The action was brought by the plaintiff, a medical man, against the husband of a lady, for medical attendance furnished to the wife, and the question is, whether she had the authority to bind her husband for the cost of that attendance. The authority of the wife may be presumptio juris, and incapable of being rebutted, as where the wife is turned out of her home without necessaries, or the means of procuring them; in which case it is a presumption of law that she has the authority of her husband to bind *him for necessaries. Here the defendant's wife, being in a state of ill-health, was turned out of doors, and part of the plaintiff's bill is for medical attendance after the wife was so turned out. The verdict for that part of the bill (71. 8s.) must stand, for it appears that the husband did not provide her with necessaries, or with the means of obtaining them. The question on the residue of the bill-i.e. for attendance between 1862 and 1864-depends upon whether the wife, as agent of her husband, could make him liable for the attendance supplied to her during that period. That question turns upon a presumption of fact. The plaintiff says that the defendant's wife was living with her husband, and he relies on this cohabitation as creating a presumption of fact, that the wife was agent for her husband in obtaining supplies for herself and for the establishment. I think the question as to whether the things ordered were necessaries has a tendency to confine the case that is to be decided. While the wife is living with her husband it is a presumption of fact that she is her husband's agent in respect of the things she orders to be brought into his house; but if the goods ordered are altogether unsuited to her husband's station in life, the presumption would be the other way, that he did not authorise her to order goods of that character. If, for instance, the wife of a day labourer were to go to a jeweller's shop, and order a diamond necklace, it would be a question for the jury whether the plaintiff did not know that the husband never authorised his wife to make any such purchase.

I attach extreme importance to the case of Jolly v. Rees, on the ground that the judgment settled the right of the husband to fix the style in which his wife shall live, so that a tradesman should not

2.

GRADY.

be allowed to appeal to a jury to say what that standard should be. HARRISON Were it otherwise, the right of saying what should be the rate of living in a man's family could be transferred from the husband to the jury, and a variety of questions would have to be considered by them before they could come to a conclusion. The only proper question for them is, whether the goods ordered are suitable to the station which the husband has fixed. It is not foreign to the question to refer to the case of hawkers who go round to the wives of labourers when their husbands are absent from their homes, and induce them to purchase articles which they do not require, but which the tradesman afterwards calls upon the husband to pay for, as necessaries. There is properly no question as to necessaries here, but if there were, it cannot be doubted that medical attendance is a necessary. With regard to the evidence said to rebut the question of authority arising from cohabitation, I think, acting as a juryman, that the conversation relied upon by the defendant had not that effect. I come to the conclusion, therefore, that, as regards the residue of the account, the verdict ought to stand, and our judgment is in favour of the plaintiff both with respect to the first part of the account and the portion subsequent to September, 1864. WILLES, BYLES, and KEATING, JJ., concurred.

Rule discharged.

1865. Nov. 28.

[389]

[390]

IN THE COURT OF QUEEN'S BENCH.

GILES v. GLUBB.

(12 Jurist, N. S. 389-392; S. C. 13 L. T. N. S. 526.)

An ancient borough, having charters with non-intromittant clauses, and being entirely surrounded by the county in which it is situate, may be properly included by the justices of the county within a highway district, notwithstanding the non-intromittant clause, by virtue of the 25 & 26 Vict. c. 61, s. 2.

Held, also, that the justices of the county had jurisdiction to enforce payment under a precept from the board for a contribution.

Held, further, in an order including L., the borough of L. was sufficiently described.

CASE stated under the 20 & 21 Vict. c. 43.

At a Petty Sessions, holden at Trecan Gate, in the county of Cornwall, on the 1st March, 1865, a complaint preferred by Albert Charles Lyne Glubb, in this case called the respondent, as clerk to the Liskeard district highway board, against Richard Giles. and Henry Davey, in this case called the appellants, as overseers of the poor of the borough of East Looe, in the county of Cornwall, was heard.

The complaint was to the effect that the appellants, the overseers of the poor-law parish, highway parish, or place of East Looe, in the said county, and which formed part of the Liskeard highway district, had not paid to the treasurer of the board a sum of 301. ordered to be paid by virtue of a precept duly issued by such board.

At the hearing the respondent appeared in person, and the appellants appeared by their attorney, Mr. Childs. On the case being called on, and before any evidence was taken, the attorney for the appellants raised an objection to our proceeding with the case, and argued, that the presiding justices being justices acting for the county of Cornwall, and not being justices of the borough of East Looe, had not any jurisdiction to hear and determine the complaint against the appellants, both of whom, it was admitted, resided within the borough of East Looe, and were overseers of the poor of such borough only; and he further contended, that the justices of the borough of East Looe were the only persons who possessed jurisdiction, if any existed, over the subject-matter of the complaint; and in support of his arguments the appellants' attorney produced several Royal charters, which had been granted to the inhabitants of the said borough of East Looe in the reigns of Queen Elizabeth, King James I., and King James II., containing, among other things, the clauses hereinafter set forth. It was admitted as a fact, that the mayor and burgesses of East Looe have been an ancient corporation from time immemorial, and in the year 1588 (29 Elizabeth) received a charter from Queen

Elizabeth confirming their ancient rights and privileges, and granting others. By the charter they were, amongst other things, to have a common gaol, to appoint a mayor, to elect a recorder, and have and hold a court of record for civil causes.

(Further charters were referred to as conferring exclusive jurisdiction.)

It was also admitted that, under the provisions of the lastmentioned charter, now known as the Government charter, justices of the peace have from time to time been appointed, and have acted in and for the borough of East Looe, and that there have been, and still are, justices of the peace in and for that borough, qualified to act, and acting, as such justices.

The appellants' attorney also cited, in support of his argument, the following case, which had been submitted for the opinion of this Court, and in which he contended that the construction put by the COURT on the language of the charter was in favour of establishing an exclusive jurisdiction in the justices of the borough of East Looe over all matters and complaints arising within the borough, except such as are specially excluded by the charter: namely, Reg. v. The Mayor, &c. of East Looe (1).

In answer to the objections raised by the appellants, the respondent contended, that by sect. 2 of the Highway Act, 1862, the subject-matter of the complaint was, notwithstanding the language of the charters expressly brought within our jurisdiction, as justices of the county of Cornwall, the words of that section being as follows: "And for the purpose of this Act, all liberties and franchises, except the liberty of St. Albans, and except boroughs as hereinafter defined, shall be considered as forming part of that county by which they are surrounded, or if partly surrounded by two or more counties, then as forming part of that county with which they have the longest common boundary."

It was admitted by both parties, as the fact is, that the borough of East Looe did not come within the definition or class of boroughs so expressly excepted, and which were by the same section (sect. 2) defined to mean boroughs as defined by the Act 5 & 6 Will. IV. c. 76, for the regulation of municipal corporations in England and Wales, or any place to which the provisions of the said Act have been, or shall hereafter have been, extended.

It was also admitted, as the fact is, that the borough of East Looe is surrounded by the county of Cornwall, in and for which county we, the undersigned, are, and act as, justices of the peace. After hearing the argument, we considered that the foregoing section of the Highway Act, 1862, conferred on us as such justices. of the county of Cornwall, jurisdiction to hear and determine the (1) 3 B. & S. 20; 8 Jur. N. S. 1128.

GILES

V. GLUBB.