her husband, or by her next friend; but under the Judicature Act, 1875, a married woman may, by the leave of the Court or a judge, sue or defend without her husband and without a next friend, on giving such security (if any) for costs as the Court or a judge may require (1). power of The question of the power of a wife living with The wife's her husband to bind him is one of great importance. binding the The earliest leading case constantly referred to upon husband. the subject is that of Manby v. Scott (m), which may be Manby v. Scott. taken as laying down the broad principle that a wife's contract does not bind the husband, unless she act by his authority. The wife, therefore, may be said to stand in the position of an agent, but to some extent as an agent of a peculiar kind; for the general rule is that, apart from any special power or authority that may be given her, from her very position of living as a wife (n), she is presumed to be invested with an authority to bind him for necessaries suitable to his rank and condition (o); but (as was decided in the case of Montague v. Benedict (p)) this does not extend to Montague v. anything beyond actual necessaries, for as to anything beyond this to bind the husband some evidence of his assent must always be shown. This case of Montague v. Benedict may be usefully noticed by the student upon two points; firstly, as deciding what is just stated, and secondly, as furnishing an instance of what will and what will not be deemed necessaries, it there having been held that the husband being a certificated special pleader, and living in a house at the rent of £200 a year, and keeping no man-servant, articles of jewellery to the amount of £83 supplied to the Benedict. (7) 38 & 39 Vict. c. 77, Order XVI. r. 8. (m) 2 S. L. C. 445; 1 Levintz, 4. (n) And this principle applies to a woman living with a man as his wife, though not actually married, and even although the tradesman knows she is not married: Watson v. Threkeld, 2 Esp. 637. (0) Etherington v. Parrott, Lord Raym, 1006. (p) 2 S. L. C. 483; 3 B. & C. 673. Husband not even for necessaries. Seaton v. wife in the course of two months were not necessaries. As, however, has been noted in the case of infants (q), what are and what are not necessaries must always depend on the circumstances of each particular case. But a husband is not in all cases absolutely liable always liable for necessaries, for as the power of a wife to bind her husband for them only arises from his presumed authority to her, such authority is liable to be rebutted. by the fact that she was kept fully supplied by her husband with all necessary articles. This is shown by the well-known case of Seaton v. Benedict (r), and some of the remarks of Chief Justice Best in that case, as illustrative of the subject, may be well quoted. He says: "A husband is only liable for debts contracted by his wife on the assumption that she acts as his agent. If he omits to furnish her with necessaries, he makes her impliedly his agent to purchase them. If he supplies her properly, she is not his agent for the purchase of an article unless he sees her wear it without disapprobation (s). . . . It may be hard on a fashionable milliner that she is precluded from supplying a lady without previous inquiry into her authority. The Court, however, cannot enter into these little delicacies, but must lay down a law that shall protect the husband from the extravagance of his wife” (t). Effect of husband wife to contract for It was formerly considered that when a husband and forbidding his wife were living together, provided she was not fully supplied with necessaries, she must always have power necessaries, or to bind the husband for them, and that no private agreement between the parties would deprive her of this power, but it must be communicated to the trades agreement to that effect. (9) Ante, p. 199. (r) 2 S. L. C. 491; 5 Bing. 28. (s) This would of course amount to an authority by subsequent ratification. (t) 2 S. L. C. 494. of the last case. man (u). But this is not now law, the important case of Jolly v. Rees (x) clearly deciding that any Jolly v. Rees. agreement between the husband and wife, or the fact of the husband forbidding the wife to pledge his credit, though not communicated to the tradesman, will be a bar to any action against the husband; and the Court, in giving judgment in that case, said, "although there is a presumption that a woman living with a man, and represented by him to be his wife, has his authority to bind him by her contract for articles suitable to that station which he permits her to assume, still this presumption is always open to be rebutted." This decision Explanation may at first sight seem somewhat to militate against mentioned the principles of general agency before explained (y), that a principal is liable for all acts of his general agent coming within the scope of his ordinary authority, although done contrary to the principal's directions, if they were not known to the contractee; but the reason of the decision is that the wife does not, simply as wife, actually stand in the position of general agent for her husband, but is only presumed to do so, and that the presumption is always liable to be rebutted. If the position of agent is actually constituted by allowing the wife to contract, then the principle of Jolly v. Rees does not apply, and to prevent his being liable for necessaries, it will be necessary for the husband to give notice to the tradesman, married To summarise the foregoing remarks, the answer to Correct answer the question of what contracts of a wife, who is living of what conto the question with her husband, will bind him, may be stated as tracts by a follows:-All her contracts entered into with his ex- woman living press or implied authority will bind him, and his autho-husband will rity will be implied for necessaries, but only for neces- bind him. saries (z); and this implied authority is liable to be (u) See Johnston v. Sumner, 3 H. & N. 261. (x) 15 C. B. (N.S.) 628; 12 W. R. 473; 33 L. J., C. P. 177; Debenham v. Mellor, L. R. 6 App. Cas. 24; 50 L. J. Q. B. 155; 29 W. R. 141. (y) Ante, pp. 117, 118. (2) Montague v. Benedict, ante, p. 209. with her 3. As to contracts made during separation. rebutted by showing that she is already fully supplied with necessaries (a), or that the husband has forbidden her to pledge his credit, or they have so agreed between themselves, even although unknown to the tradesman, unless indeed he has previously actually allowed her to act as his agent, when this must be communicated to the tradesman (b). Thirdly, as to contracts made after marriage, but whilst the parties are living separate and apart from each other. The separation makes no difference in the wife's general incapacity to contract, so as to bind herself, and the observations previously made hereon, under the second division of this subject, apply equally here (c); but the wife's power to bind her husband stands on a totally different footing, for in the case of husband and wife living together, we have seen that, from their so living together, the presumption is that the husband is liable for necessaries; but here there is no such presumption, and it is always incumbent on a creditor seeking to charge the husband, to show that the wife from the circumstances of the separation, or from the conduct of the husband, has such an implied authority (d). The wife's power, therefore, to bind her husband by her depends on the contracts, depends on the way in which the separation the separation Occurred, which may be either by the fault of the husband, by the fault of the wife, or by mutual consent and arrangement. The wife's power to bind her husband way in which occurred. Where the separation is by the husband's fault he is liable for necessaries. Where the separation is by the fault of the husband, e.g. if he either actually turns his wife away, or refuses to receive her, or behaves in such a way, either by cruelty or otherwise, as to render it impossible for her to continue to live with him, unless she has an adequate (a) Seaton v. Benedict, ante, p. 210. (b) Jolly v. Rees, Debenham v. Mellor, ante, p. 211. (c) Ante, pp. 206–208. (d) See Johnston v. Sumner, 3 H. & N. 261 ; Mainwaring v. Leslie, M. & M. 18; Eastland v. Burchell, L. R. 3 Q. B. D. 432; 47 L. J. Q. B. 500. allowance for maintenance paid to her, she goes forth to the world with full authority to bind him for necessaries, which authority the husband cannot deprive her of, even though he gives particular notice to the tradesman not to trust her (e), and in this case for the husband to exonerate himself by showing a separate allowance it is a question for the jury whether or not it is adequate (ƒ). reverse where Where the separation is by the fault of the wife, as But the if she elopes and lives in adultery, or the husband turns the separation her away for adultery, or she, voluntarily, and without is by the fault on his part, simply leaves him, she has no authority to bind him for necessaries in any degree (g). wife's fault. consent, hus liable unless an express separated Where the separation is by mutual consent, the rule Where separais, that the wife has an implied authority to bind her tion by mutual husband for necessaries, unless there is some express band will be agreement between the husband and wife on the in the case of subject of the separation and the rights of the wife. agreement Although it was at one time considered that in such a between the case as this to exonerate the husband, it was necessary parties. to show that the wife had from some source adequate separate maintenance, it appears to be now clear that it is not necessary to show this, but that when the parties separate by mutual consent they may make their own terms and conditions, and so long as the separation exists these terms are binding on them both (h). If, however, under the agreement of separation, a certain allowance is to be paid, if it is not kept up the wife may bind the husband by contracting to the extent of it (i). (e) Johnston v. Sumner, 3 H. & N. 261; Boulton v. Prentice, Selwyn's N. P. 334 (f) Hodgkinson v. Fletcher, 4 Camp. 70; Emmett v. Norton, 8 C. & P. 506. (g) Chitty on Contracts, 173, 174; 2 S. L. C. 512. (h) Biffen v. Bignell, 7 H. & N. 877; 31 L. J. Ex. 189; Eastland v. Burchell, L. R. 3 Q. B. D. 432; 47 L. J. Q. B. 500. (i) Nurse v. Craig, 2 N. R. 148. |