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and presumably the same would hold good in the courts of this country, that the right does not exist where the father does not maintain his children or fulfil his duties as a father. The English authorities clearly show that emancipation will not be inferred merely from the fact that the son resides apart from his father and is in the service of another person (s). Thus, a son who left his father's house in Selborne, with his father's consent, and went to live in London, and entered the Metropolitan Police, was regarded as not emancipated. It is otherwise if a son enlists as a soldier and has no power to terminate his service (t).
(s) K. v. Selborne (1859), 2 E. & E. 275 ; R. v. St. Peter's (1769), Bur. Sc. 638.
(t) R. v. Roach (1795), 6 T. R. 247.
A MARRIED woman cannot (at Common Law) enter into a contract of hiring and service which will bind
If the form of such a contract were gone through it would be “altogether void,” no action lying against her husband or herself for the breach of it. At Common Law an indenture purporting to bind an apprentice to a married woman was of no effect (b); she could not bind herself to perform the covenants. The strictness of the rule is best seen by referring to Offley v. Clay (c), which was an action for work done by the wife of the plaintiff for the defendants at their request. Plea of payment to the wife in full satisfaction and discharge of the cause of action; held bad on demurrer, as it did not aver that the wife was authorised to receive. Notwithstanding the passing of the Married Women's Property Act of 1870, which allowed a married woman to sue for her earnings in certain cases, it was held that she could not, without the consent of her husband, enter into a contract of service within the meaning of the Master and Servant's Act of 1867 (30 & 31 Vict. c. 141) (d).
(a) It is almost unnecessary to cite authorities for this elementary proposition. But see Bidgood v. Way, (1778), 2 W. Bl. 1236 ; Marshall v. Rutton (1800), 8 T. R. 545; Lambert V. Alkins (1809), 2 Camp. 272; Liverpool Adelphi Loan Association v. Faithurst (1854), 9 Ex. 422.
(0) R. v. Guildford (1818), 2 Chitty, 284.
(c) (1840), 2 M. & G. 172; 2 Scott, N. R. 372.
(d) Tomkinson v. West (1875), 32 L. T. 462 ; Hudgkinson v. Green (1875), Davies' Labour Laws, 119; 39 J. P. 600.
As the agent of her husband, a wife may contract obligations which will bind him. The question of authority is one of fact to be determined either by evidence of express authority or by circumstances showing implied authority (e). If that authority exist it will be derived not from the contract of marriage, but from the acts or words of the husband, or the circumstances or conduct of the parties. When a husband and wife live together, it may be said that there is a presumption that she has power to order or hire necessaries (f) on behalf of her husband; for example, to hire a
1 servant suited to her station in life. This presumption, however, is not irrebuttable; it is destroyed by showing that the authority did not in fact exist, or that it was withdrawn. Lord Justice Bramwell thus clearly states the true principle:
“If a husband turns his wife out of doors, or conducts himself so that she is obliged to leave him, it is a legal duty upon him to maintain her; and if he will not himself perform that duty, she has power to provide for herself at his expense, that is to say, she can pledge his credit for necessaries, such as food, apparel, lodging, and perhaps medicine and physic. In like manner when a wife is living with her husband, if he gives her nothing but the shelter of his house, she would have a right to provide food and apparel for herself at his expense, and he would be bound to pay for them. In cases such as these a wife has undoubtedly power to bind her husband. There may be cases in which a wife has a similar power when she and her husband are living and cohabiting together, and where the article bought upon credit is of such a kind and character that persons living in the same class of life with themselves, and having the same means, and living in the same neighbourhood, are in the habit of ordering it upon credit. Take the case of an ordinary butcher's bill ; if it is not the practice of persons belonging to a particular class of life (and undoubtedly sometimes it is not), living in certain neighbourhoods in a certain style, to pay for each joint of meat at the moment of its delivery, and if the practice is to have weekly, monthly, or quarterly bills, it seems to me that the wife in such a case
(e) Notes to Manby v. Scott, 2 Smith, L. C., 8th ed., 445.
(f) See judgments of Bramwell, L. J., and Thesiger, L. J., in Debenham v. Mellon (1880), L. R. 5 Q. B. D. 394. In this case it was held that a husband who is able and
willing to supply his wife with necessaries, and who has forbidden her to pledge his credit is not liable for necessaries ordered by her, even when the tradesman who supplied them had no knowledge of the prohibition.
would have a presumable authority ; and if the husband means to negative it, he not only must give her notice that he withdraws it, but also must inform the tradesmen in the neighbourhood with whom she might deal that the presumable authority has been withdrawn. It seems to me that the authority exercised by a wife in a case such as I have mentioned does not spring merely out of the contract of marriage but that the same authority would exist in favour of a sister, or a housekeeper, or other person presiding over the management of the house” (9).
If a wife were permitted by her husband to carry on a trade or business, she would be regarded as having authorityto enter into all contracts, including those of hiring and service, necessary for the conduct of the business (h).
Equity has long recognised a wife's right to deal freely with her separate estate as if she were unmarried, and she might no doubt hire servants so as to bind it. Recent
(g) Debenham v. Mellon (1880), decisions is thus stated in Chitty, L. R. 5 Q. B. D. 398; Johnston Pleailings, vol. i., p. 34: “In v. Sumner (1858), 3 H. & N. 261; general, the wife cannot join in any 27 L. J. Ex. 341. But see 45 & action upon a contract made during 46 Vict. c. 75. Necessaries would the marriage, as for her work and include hiring servants reasonably fit labour, goods sold, or money lent by for her degree. Blackburn, J., in her during that time ; for the hus. Bazely v. Porder, L. R. 3 Q. B. 563 ; band is entitled to her earnings, and and White v. Cuyler (1795), 6 T. R. they shall not survive to her, but 176 ; 1 Esp. 200. The head note "if go to the personal representatives of a feme covert without any authority the husband, and she could have no from her husband contract with a property in the money lent or the servant by deed, the servant having goods sold. But when the wife can performed the service stipulated be considered as the meritorious may maintain assumpsit against the cause of action, as if a bond or other husband," is misleading. It appears contract under seal, or a promissory in the report of Espinasse that the note, be made to her separately, or deed was used as evidence of with her husband, or if she bestow contract which the wife would be her personal labour and skill in authorised to make.
curing a wound, &c., she may join (h) Phillipson v. Hayter (1870), with the husband, or he may sue L. R. 6 C. P. 38. As to the custom alone.” See remarks on this passage of London by which a married woman in Bishop on Law of Married Women, trading on her own account may be vol. i., sect. 106, where the true view charged as a feme sole on contracts is said be that if a contract is concerning her business, see Larie v. taken to the husband and wife alone Phillips (1765), 3 Bur. 1776. In with the assent of the former, the some cases at Common Law the action survives to her, and she is right of action survived to the wife. entitled to the proceeds as against The precise rule as to this can with the representatives of the husband. difficulty be extracted from the Roper, Husband and Wife, Jacob's authorities. The purport of the ed. ji., 165.
legislation has much extended the power of married women in regard to service and earnings.
20 & 21 Vict. c. 85, enacts
Section 21. A wife deserted by her husband (1) may at any time after such desertion, if resident within the metropolitan district, apply to a police magistrate, or if resident in the country to justices in petty sessions, or in either case to the Court, for an order to protect any money or property she may acquire by her own lawful industry, and property which she may become possessed of, after such desertion, against her husband or his creditors, or any person claiming under him ; and such magistrate or justices or Court, if satisfied of the fact of such desertion, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings (k) and property acquired since the commencement of such desertion from her husband and all creditors and persons claiming under him, and such earnings and property shall belong to the wife as if she were a feme sole : Provided always, that every such order, if made by a police magistrate or justices at petty sessions, shall, within ten days after the making thereof, be entered with the Registrar of the County Court within whose jurisdiction the wife is resident; and that it shall be lawful for the husband, and any creditor or other person claiming under him, to apply to the Court, or to the magistrate or justices by whom such order was made (1), for the discharge thereof : Provided also, that if the husband or any creditor of or person claiming under the husband shall seize or continue to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to restore the specific property, and also for a sum equal to double the value of the property so seized or held after such notice as aforesaid : If any such oriler of protection be made, the wife shall during the continuance thereof (m) be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to
(i) Absence of a husband in his 3 H. & C. 528. ordinary occupation is not desertion, (2) 27 & 28 Vict. c. 44, extends Ex parte Aldridge, 1 S. & T. 88. this to the magistrate for the time The wife must not be a consenting being acting as the successor or in party to the cessation of cohabita- the place of the magistrate who made tion, Thompson v. Thompson (1858), the order of protection. 1 S. & T. 23; 27 L. J. P. & M. 65. (m) It would appear from Exart See also Yeat man v. Ycatınan (1868), v. Chubb (1875), L. R. 20 Eq. 454, L. R. 1 P. & D. 489 ; 37 L. J. P. & that evidence that the desertion is M. 37.
a continuing one must be produced (k) “Earnings" mean lawful earn- not only at the hearing of the cause, ings. and not therefore property ac- but when it comes on for further quirer! hy keeping a brothel, Mason consideration. v. Miccheri (1865), 34 L. J. Ex. 68 ;