dence of the husband's assent to contracts made by his wife for necessaries. The husband is only liable upon account of his own assent to the contract of the wife, of which assent cohabitation causes a presumption. The wife has no power originally to charge her husband" (ƒ).

And as the wife's power is altogether founded on the basis of agency, it follows that her husband's death revokes her implied. authority; and she then ceases to have the power to bind his estate in futuro, even by continuing to order necessaries for herself and children, although she, and the tradesman furnishing such necessaries, were ignorant, at the time, of his death. And in such case, his executor will not be liable for necessaries supplied after his decease (g).

2ndly. On contracts made by the wife during cohabitation.Cohabitation is strong presumptive evidence of the husband's assent to agreements made by her for the supply of goods, for herself or her husband's household, during that period (). And it seems that she has implied authority to hire servants necessary and suitable to her husband's degree and station (i). Where a husband is living in the same house with his wife, he is liable to any extent for goods which he permits her to receive there; she is considered as his agent, and the law implies a promise on his part to pay the value (k). And this liability depends, not strictly on the real circumstances of the husband, but on the appearance which he allows his wife to assume in society. When a tradesman is thereby deceived, the loss must fall upon him who connived at the deception. Whatever may be the husband's degree, he sends his wife out into the world with a credit corresponding to the rank in life in which, by his sanction, she affects to be placed (1).

So strong is this presumption of assent during cohabitation, that even the adultery of the wife, during that period, does not destroy it as to her contracts after the adultery, and before the husband and wife separated (m).

(f) See Manby v. Scott; and per Holt, C. J., Etherington v. Perrott, 2 Lord Raym. 1006.

(g) Blades v. Frce, 9 B. & C. 167. (h) Montague v. Benedict, 3 B. & C. 631.

(i) White v. Cuyler, 1 Esp. R. 200; 6 T. R. 176, S. C.

And where it appeared that

the defendant's wife having committed adultery, he separated himself from her, but left her in his house with two children, bearing his name, but without making any provision for her in consequence of the separation; and she continued to reside in the house in a state of adultery; it was held that the husband was liable for necessaries furnished to her in the house in which she was left with the children; it not appearing that the plaintiff knew, or might readily have known, the circumstances under which she was living. But the Chief Justice Eyre observed, "if the defendant, in another action brought against him by some other tradesman, shall be able to establish the notoriety of his wife's situation, he may defend himself:" and Mr. Justice Buller remarked, that the case was anomalous (n).

"In an action against Sir Francis Withers (o), Serjeant at Law, and heretofore Justice of the King's Bench, for wares sold and delivered by the plaintiff to the wife of the defendant, it appeared that the goods were silver fringes and lace for a petticoat, and side-saddle; and that they were all delivered within the compass of four months, and that they amounted to 947.; and that part of them were delivered to a carrier for the wife of the defendant, by the order of Mrs. Rider, upon a letter of the wife to Mrs. Rider, and that the other part were delivered upon a letter of the wife to the plaintiff. It was proved that these laces were worn and used by the wife in the view of the defendant, and that the wife at that time lived with the defendant in the same house. For the defendant, it was insisted that long time before the delivery of these goods there was a difference between him and his wife; and that they, for the space of two or three years, had not lived together; and that the wife declared to the defendant that she would charge him with 5007. in one term, and have him in gaol in the next, and all this before the goods were delivered; and that for many years the wife had an allowance for clothes of 50l. per annum. No evidence was given that she had any occasion to have these clothes, so that they could appear to be necessary. The same day another action was tried for velvet and tissues of 31. per yard, to the value of 801. Treby, C. J., directed that if the jury found the plaintiff innocent of the design of the wife to ruin the husband, and delivered the laces, &c., as goods fit for the wife, and upon the credit

(n) Norton v. Fagan, 1 B. & P.

226.

(0) Martin v. Withers, 5 W. & M.; Skinner's R. 348.

of the husband, without notice of the difference between them, that the husband shall be obliged to pay the plaintiff'; for it is part of his promise of marriage to feed and clothe her, and though she had an allowance, this was secret, and of which the plaintiff had not notice. But that if the plaintiff had notice of the differences between the husband and wife, and sold them only to enable the wife to ruin the husband, then the defendant would not be chargeable; and though the husband be chargeable heretofore, yet, after such a solemn trial, and their differences made so public, he held that the husband should not be chargeable. And likewise, if the plaintiff was not privy to their differences, but delivered these goods innocently, yet if the goods were not suitable to the quality of the wife, the defendant should not be chargeable; and if part be only suitable, he should be charged for that part only. Upon this direction the jury, being of gentlemen, found generally for the plaintiff for his whole damages."

But even cohabition, and a knowledge on the part of the husband that his wife has contracted for goods, are only presumptive, not conclusive, evidence of his assent, and consequent liability. The presumption may be repelled by circumstances, evincing that the tradesman gave credit solely to the wife; and if the jury find that to be the fact, he is not liable.

The plaintiff (p), a milliner, supplied articles of dress to the wife of the defendant, an apothecary in a small country town, in the course of six months to the amount of nearly 2007. The defendant and his wife were then living together, but there was no evidence whatever that he was at all aware that she had any dealings with the plaintiff. A former account of the same sort that she had with the plaintiff, without her husband's knowledge, had been paid by her father, who requested that no further credit should be given to her without her husband's sanction. All the goods in question were subsequently ordered by her alone; and the plaintiff took a promissory note for the amount from her in her own name. Lord Ellenborough said, "the action clearly cannot be maintained on the note, as the wife had no authority, general or special, from her husband as his agent to make it; and I think he is not liable for any part of the goods, on this plain ground, that they were

(p) Metcalfe v. Shaw, 3 Camp. 22; recognised by Holroyd, J., in Holt v. Brien, 4 B. & Ald. 255; and see

Taylor v. Brittan, 1 C. & P. 16, note; and Leggatt v. Reed, id.; Atkins v. Curwood, 7 Car. & P. 760.

not supplied on his credit, and the plaintiff looked to the wife only for payment. The credit was given to the wife, and not to the husband."

In Bentley v. Griffin (q), the defendant was an attorney, not in very extensive practice, and depending on his practice for his income. He did not occupy with his family the whole of the house in which he lived. The plaintiffs had, in about a year and a half, furnished articles of fashionable dress to the defendant's wife to the amount of 1837., and they proved that the charges were for such articles reasonable. They proved that the wife had sometimes come in a curricle to their shop and ordered goods. They had debited the wife in their books, and had been partly paid for their goods by three bills of exchange, which they had from time to time drawn, directed to the defendant by the name of Mr. Griffin; but there was no proof that they were ever presented to him for acceptance; and the wife had accepted the bills, signing only the initial letter of her christian name, and she had paid those acceptances. The husband and wife had lived together, and it was proved that the wife had in her husband's presence worn some of the articles furnished by the plaintiffs. For the defendant it was proved that the curricle in which the lady had been seen was not his, but that of an acquaintance; that when some of the articles were sent home, the wife had directed her servant to put them away, that her husband might not see them; that in the presence of the defendant and one of the plaintiffs, she had said that "her husband never paid her bills, she always paid her own;" that one of the bills drawn on the husband, and accepted by the wife, which the plaintiffs had paid away to Hillyard, a lace-merchant, being dishonoured, the plaintiffs had written in urgent terms to the wife, praying her to provide for the bill, but had made no application to the husband. Heath, J., left it strongly to the jury to consider whether the credit had not been given to the wife, and not to the husband; and they having found a verdict for the plaintiff, the Court set it aside, and granted a new trial.

If necessaries (r) are supplied, the assent of the husband may be

(9) 5 Taunt. 356; cited by Holroyd, J., in Holt v. Brien, 4 B. & Ald. 255.

(r) In considering what are necessaries, regard is to be had to the estate of the husband, and not merely as to

his degree, for one of high degree may be of low estate, per Lord Hale, Manby v. Scott, Bac. Ab. Baron and Feme, (H). Per Lord Abinger, in Atkins v. Curwood, 7 C. & P. 760. And the

fairly presumed. But if goods which are not necessaries suitable to the husband's circumstances and station in life be furnished by the wife's orders, it is incumbent on the tradesman supplying them to make inquiry as to the power of the wife to bind her husband, and to prove the husband's express authority to her to make the purchase; or that he saw her wear or use the articles bought, without expressing any disapprobation, (aliter where he disapproves (s),) which may be considered strong presumptive evidence of his assent. But mere proof of the husband's cohabitation with his wife will not, it seems, be sufficient to establish his authority so as to render him liable upon her contract for goods of the latter description (t). Proof, however, of a husband's having paid for articles ordered by his wife on former occasions, is relevant evidence to go to a jury, upon a question whether or not she had, on a subsequent occasion, ordered other goods by his authority (u).

The case of Montague v. Benedict (x) is an important authority upon this subject. The plaintiff was a jeweller, and in the course of two months delivered jewellery to the extent of 851. to the defendant's wife. It appeared that the defendant was a special pleader, and lived in a ready-furnished house, of which the annual rent was 2007.; that he kept no man servant; that his wife's fortune upon her marriage was less than 40007.; that she had at the time of her marriage jewellery suitable to her condition; and that she had never worn in her husband's presence any articles furnished her by the plaintiff. It appeared also that the plaintiff, when he went to the defendant's house to ask for payment, always inquired for the wife, and not for the defendant. It was held that the goods so furnished were not necessaries; and that as there

jury by whom such question is to be decided, are not to be guided by the fortune brought by the wife, but are to regulate their verdict by the real circumstances of the husband; per Lord Eldon, C. J., Ewers v. Hutton, 3 Esp. 255.

(s) Atkins v. Curwood, 7 C. & P.

756.

(t) Com. Dig. Baron and Feme, (Q); see generally, Montague v. Benedict, 3 B. & C. 633, 638; 5 D. & R. 532, S. C., nomine Montague v. Baron;

S. C. in 1 C. & P. 356, and M. & M. 19; and see Seaton v. Benedict, 2 M. & P. 66, 301; 5 Bing. 28, S. C.; Spreadbury v. Chapman, 8 C. & P. 372, per Lord Denman, C. J.; Furniture may be necessaries, see Hunt v. Blaquier, 5 Bing. 550; 3 M. & P. 108, S. C.

(u) M'George v. Egan, 5 Bing. N. C. 196, and see Filmer v. Llynn, 4 Nev. & M. 559; 1 Harr. & Woll. 59. (x) 3 B. & C. 633, 638; 5 D. & R. 532, S. C.