Chief Baron and my brothers Martin and Channell are of opinion that the declaration is good, it is not necessary that I should further inquire whether it ought to contain, or does contain, such an averment. CHANNELL, B.-I concur with the rest of the Court in thinking the declaration good. Judgment for the plaintiff. 1858. WILLIAMS v. CLOUGH. JOHNSTON v. Sumner. ACTION for goods sold.-Plea: Never indebted. May 7. During cohabitation, a wife has an implied authority as agent of her husband to pledge his credit for recover the sum of 160% for dresses and articles of millinery supplied by him to the defendant's wife. The defendant necessaries married in July 1849, on which occasion his father entered into a covenant to pay him 500l. a year, and Mrs. Sumner's mother covenanted to pay her 2007. a year for her separate use until the death of her mother, when she would come suitable to her station, notwithstand ing any private between them. agreement If a husband turns his wife away and she is unable to maintain herself, she has an authority of necessity to pledge his credit for necessaries supplied to her. Sed quare, whether, if a labouring man turns his wife away, she being capable of earning, and earning as much as he did; or if a man turned his wife away she having a settlement double his income in amount, the wife in such cases could bind the husband. If a wife leaves her husband without his consent, she has no authority whatever to bind him. Where husband and wife part by mutual consent, and nothing is said, and she cannot maintain herself, a jury may infer that the husband meant that his credit should be pledged: and semble, even if at parting he said otherwise. But where husband and wife part by mutual consent, and the wife is capable of supporting herself or has a sufficient allowance, the burden of proof is on the person who has trusted the wife to shew an authority either express or implied to pledge her husband's credit. A husband and wife separated by mutual consent when it was verbally agreed that the wife should continue to receive 2001. a year, which had been settled on her on the marriage.- Held, that the husband was not liable for necessaries supplied to his wife, the plaintiff having failed to shew that her allowance was insufficient, or that she had any authority to pledge her husband's credit. 1858. JOHNSTON v. SUMNER. into possession of her mother's property. The defendant and his wife went to reside abroad, and in 1850 they separated by mutual consent, when it was verbally agreed that Mrs. Sumner should continue to receive the 2007. a year for her sole use. On parting, the defendant left with her 70%. In the year 1851, Mrs. Sumner, who resided with her mother at Frankfort, wrote to the plaintiff for some dresses, which were supplied to her: she afterwards came with her mother to the plaintiff's shop in London, and ordered other articles. At this time the plaintiff was not aware that she was married, and made no inquiry about it; but, having afterwards ascertained the fact, he brought the present action against her husband. It was submitted on behalf of the defendant, that under these circumstances he was not liable. The plaintiff's counsel requested the learned Judge to leave to the jury the question whether Mrs. Sumner had an allowance sufficient for her station in life. The learned Judge was of opinion that there was no evidence for the jury, and nonsuited the plaintiff. Edwin James, in the following Term, obtained a rule to shew cause why a new trial should not be had on the ground of misdirection, against which Lush and T. Chitty shewed cause (April 22).—The goods were not supplied on the credit of the defendant. Where a husband compels his wife to leave him, he gives her an implied authority to pledge his credit for necessaries suitable to her station in life; but where husband and wife separate by mutual consent, the implied authority arising from cohabitation ceases, and an express authority must be proved. There is good reason for the distinction, since in the former case the husband is bound to maintain his wife, but in the latter he violates no contract. In Todd v. EASTER TERM, 21 VICT. 1858. v. SUMNER. Stokes (a) Lord Holt did not leave to the jury whether the wife's allowance was sufficient, but nonsuited the plaintiff JOHNSTON because he had notice that the defendant and his wife had separated. Nurse v. Craig (b) for the first time decided, that where a husband covenants with a third party to make his wife a certain allowance, and fails to do so, if such third party supply her with necessaries he may maintain an action, in respect of them, against the husband. There Chambre, J., observes that a provision for a separate maintenance is of modern introduction. That case shews that, if the wife consents to an allowance agreed on by the parties as sufficient for her maintenance, the jury are not to determine the question of sufficiency. [Pollock, C. B., referred to Corbett v. Poelnitz (c) and Marshall v. Rutton (d).] In Roper on Husband and Wife, p. 108, 2nd edit., it is said that there are four exceptions to the rule that a wife cannot bind her husband by her contract without his authority. The first arises from the circumstance of cohabitation, in which case the wife has an implied authority as the agent of her husband to bind him for necessaries. The second is where the husband allows his wife to use articles bought by her, though not necessaries. The third is where the wife purchases necessaries and pays for them with money borrowed by her from a stranger. The fourth is where the husband turns his wife out of doors, without provision and without a sufficient cause; or when he, by cruel treatment, obliges her to leave her home. But, after the husband and wife have consented to an arrangement for separation by which she is willing to receive a certain allowance for her maintenance, the law will not presume that his liability continues where the wife lives apart from her husband, and the tradesman is bound to make strict inquiry as to the (a) 1 Ld. Raym. 444; 1 Salk. 116. VOL. III.-N. S. T (c) 1 T. R. 5. EXCH. 1858. JOHNSTON v. SUMNER. terms of separation: Ozard v. Darnford (a). That the agreement for separation is a material element appears from the judgment of the Court in Thompson v. Hervey (b). The authorities apparently adverse to this view are distinguishable. In Hodgkinson v. Fletcher (c) there was no agreement as to the allowance to the wife; and Lord Ellenborough observed that its sufficiency was not proved by her mere acquiescence, since she might be willing to accept a provision wholly inadequate because she could get no more. In Holder v. Cope (d) it was admitted that the sufficiency of the allowance was a question for the jury. In Reeve v. The Marquis of Conyngham (e) the plaintiff's counsel did not denythat the allowance to the defendant's wife was sufficient, but contended that it ought to have been shewn that the plaintiff knew of it. Notice to the tradesman of the allowance is immaterial: Mizen v. Pick (f). -They also referred to Manby v. Scott (g); 2 Smith's Lead. Cas. 363. Edwin James and H. Lloyd, in support of the rule.-The principle deduced from the authorities is thus stated in 2 Smith's Lead. Cas. 389, 4th edit. "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." Then, who is to judge of the adequacy of the allowance? Later decisions have established that it is a question for the jury. The law on this subject is fully and correctly stated by Lord Abinger in Emmett v. Norton (h). (a) 1 Sel. N. P. 275, 10th ed. (b) 4 Burr. 2178. (c) 4 Camp. 70. (d) 2 Car. & K. 437. (e) 2 Car. & K. 444. (f) 3 M. & W. 481. (g) 1 Lev. 4. (h) 8 C. & P. 506. In Lane v. Ironmonger (a), Parke, B., said, "The whole The case The judgment of the Court was now delivered by POLLOCK, C. B.-This case was tried before the Lord Chief Baron, at the Middlesex Sittings after Michaelmas Term, when the plaintiff was nonsuited. Mr. James moved, in Hilary Term, for a new trial, and cause was shewn this Term; and I have now to state the judgment of the Court. 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 (a) 13 M. & W. 368. (c) 2 Stark. N. P. 86. 1858. JOHNSTON v. SUMNER. |