and in a way which any reasonable person | prompt. While the deprivation of the love would know to be in contravention of those of her husband might not fall within the rights. It is a well-recognized subject in terms of the bankruptcy law, surely the resubstantive law that one cannot interfere sults of that deprivation do. The petition with the contract relations existing between of Mrs. Leicester upon which her judgment others without being guilty of an actionable was obtained averred that she was fortytort, and that such interference is termed seven years of age; that the greater portion malicious within the purview of the sense of her life had been spent as the wife of in which it is used in the bankruptcy law. Mr. Leicester; that she was at that period Upon these general considerations many au- of life when she needed all of the love and thorities might be cited. 16 Am. & Eng. care which a husband only could bestow; Enc. Law, 2d ed. p. 1109. The enticement that the acts of Mrs. Hoadley had "wholly away of servants and the slander of title alienated the affections of her said husband are well-known examples of such malicious from her, and had broken up her home, and interference noted, and, as above suggested, deprived her of his comfort and love." She are wilful and unjustifiable interferences further alleges that, by reason of the wrongwith the contract relations existing between doings of Mrs. Hoadley, "she suffered agony parties. Corporations may be charged with of mind for many months, has passed many malice in such matters, and surely no cor- sleepless nights, and is and has been sore rupt or criminal motive may be charged as distressed during the continuance of the said a basis. The case of Colwell v. Tinker, 169 grievances, and she is now, by reason of the N. Y. 531, 58 L. R. A. 765, 98 Am. St. Rep. conduct of the said defendant, sick, her 587, 62 N. E. 668, was one much like the health impaired, and her home destroyed." case at bar, where a discharge was sought Surely, all of this was an injury. It was an from damages awarded for criminal con- injury to the person as well as to the propversation. While, of course, such an of- erty. Authorities are not wanting to susfense is more grievous than the one upon tain the claim that even anguish of mind which Mrs. Leicester recovered her judgment and mental suffering are such injuries to the in this case, still the underlying principle is person as would fall within the language of the same. The court there held that an ac- the act. Re Freche, 109 Fed. 620; Delation for criminal conversation was one for mater v. Russell, 4 How. Pr. 234. The loss a wrongful act done intentionally, and with- sustained by the wife was not alone the loss out just cause or excuse, and that the judg- of the affections of her husband, but the ment recovered therefor was both a wilful loss of all those comforts and ministrations and malicious injury to the person and prop-dependent upon those affections. Her health erty of another. In Exline v. Sargent, 23 Ohio C. C. 180, it was held that a judgment for damages based upon the alienation of a wife's affections is within § 17 of the bankruptcy act, and could not be relieved against by the debtor availing himself of the benefits of the act. We think that the injury for which Mrs. Leicester recovered in this case was wilful and malicious, within the meaning of the terms as used in the quoted section.

2. Was it an injury to person or property? The matrimonial relation, so far as the wife is concerned, from a pecuniary view, is made valuable chiefly because of the provision it makes for her maintenance and the comfort and security afforded her by a home thereby secured; and all this is based largely, if not wholly, upon the love of her husband. The law will be found sadly deficient to compel if love shall no longer 65 L. R. A.

had become impaired, and her home destroyed. The allegations of the petition under which Mrs. Leicester recovered the judgment in question are clearly that she suffered both in person and property in the most ordinary and everyday acceptation of those terms. We are of the opinion that the facts set out in Mrs. Leicester's answer were sufficient to show that the judgment sought to be discharged was such a one as, under the provisions of § 17 of the bankrupt law, was not discharged by proceedings in bankruptcy, and hence that the trial court erred in sustaining plaintiff's demurrer thereto. This ruling will be reversed, and the cause remanded for further proceedings.

All the Justices concur.

Petition for rehearing denied January 10, 1903.

APPEAL by plaintiffs from a judgment defendants, in cleaning out and removing

and that the ground around it was quite solid, as if it had not been disturbed recently; that the building in which it was found was old, and looked as if it had not been cleaned out for some time, and the dirt and débris over the can did not appear to have been recently disturbed. The plaintiff C. P. Danielson testified to substantially the same state of facts.

untarily deposited it in the place where dis- | henhouse, 3 or 4 inches below the surface, covered for safe-keeping, and at no time had abandoned or lost it. The reply denies the material allegations of the answer. Upon the issues joined the cause came on for tria! before a jury. After the plaintiffs' testimony was all in, the defendants moved for and were allowed a nonsuit. The evidence in the bill of exceptions tends to show that in 1894 the plaintiffs, who were then aged about eight and ten years, respectively, were employed by the defendants to clean out an old henhouse situated on premises then occupied by defendants, but which had previously been owned and in the possession of numerous other persons; that while so engaged they dug up an old rust-eaten halfgallon tin can containing a number of musty and partially decayed tobacco socks filled with gold coin, which they delivered to the defendants. W. O. Danielson, the elder of the two boys, thus describes the finding of the money and its delivery to the defendants: "We hauled several loads from the front end of the building. I was in the back end of the building, spading through the trash, and the point of the shovel struck something hard. I shoveled the trash away, and got the can on my spade, and was going to throw it in the sled. It was too heavy, so I dragged it out toward me a foot or so, and told my brother the can must be full of rocks. So I tried to take the lid off with my fingers. It was rusty and old, and I could not get it off, so I took the pick and chopped through the lid, and when I pulled it out the lid came with it. In doing so I cut two of the sacks-tobacco sacks -containing fives and twenties. looked through all the sacks, which were gold. My brother says, 'Let's take it over home.' I says, 'No, let's take it up and show Dee Roberts.' So we packed it up on the spade together. We packed it up to the porch steps, and Dee came out and says, 'What you got, boys? We says, 'A can of gold.' 'Where did you get it?' 'Out in the henhouse.' So Mary Roberts, Dee's wife, and O'Neil came to the door, and said, 'Let's have it,' so we gave it to them. They walked inside and closed the door in our face, and we went back to work to finish up our job. About half an hour after, Dee called us out and says: 'Here's five cents, boys. We put the money there some time ago, and were going to buy something with it. Don't say anything about it, and the Lord will bless you.' We asked him how much was in the can. He said, 'Over $7,000."" The wit ness further testified that the can containing the money was old and rusty, and almost ready to fall to pieces; that it was buried in the earth under the débris and dirt in the

..

The motion for nonsuit was sustained on the ground, as we understand it, that the evidence for the plaintiffs showed that the money in question had been intentionally deposited by someone where found, and therefore the plaintiffs could not invoke the rule that the finder of lost property is entitled to its possession against all the world except the true owner. Ever since the early case of Armory v. Delamirie, 1 Strange, 505, where it was held that the finder of a jewel might maintain trover for the conversion thereof by a wrongdoer, the right of the finder of lost property to retain it against all persons except the true owner has been recognized. In that case a chimney sweeper's boy found a jewel, and carried it to a goldsmith to ascertain what it was. The goldsmith refused to return it, and it was held that the boy might maintain trover on the ground that by the finding he had acquired such a property in the jewel as would entitle him to keep it against all persons but the rightful owner. This case has been uniformly followed in England and America, and the law upon this point is well settled. Sovern v. Yoran, 16 Or. 269, 8 Am. St. Rep. 293, 20 Pac. 100; 19 Am. & Eng. So we Enc. Law, 2d ed. p. 579. But it is argued that property is lost in the legal sense of that word only when the possession has been casually and involuntarily parted with, and not when the owner purposely and voluntarily places or deposits it in a certain place for safe-keeping, although he may thereafter forget it, and leave it where deposited, or may die without disclosing to anyone the place of deposit. This seems to have been the view taken by Mr. Justice Lord in Sovern v. Yoran, 16 Or. 269, 8 Am. St. Rep. 293, 20 Pac. 100, where money was found hidden under the floor of a barn. It had evidently, as in this case, been deposited there by someone, and the question for decision was whether the defendant, who had treated the money as lost property, and disposed of it as provided in the statute, was guilty of a conversion, and liable to the true owner therefor. It is said in the opinion that, until the owner was discovered, the money was in the nature of treasure trove, and could not be treated as lost property, within the meaning of the statute. At common law a distinction was made between

Lost prop- by the law, by the act of the parties, or through the force of circumstances is charged with the duty of taking reasonable care, and answerable if he does not to the owner, and may consequently recover for any wrongful act by which the property is impaired, in the capacity of trustee, if in no other character." The money for which this action is brought came lawfully into the possession of the plaintiff's. The circumstances under which it was discovered, the condition of the vessel in which it was contained, and the place of deposit, as shown by the plaintiffs' testimony, all tend with more or less force to indicate that it had been buried for some considerable time, and that the owner was probably dead or unknown. The plaintiffs, having thus come into its possession, were charged with the duty of holding it for the true owner, if he could be ascertained, and, if not, of making such disposition thereof as the law required. The possession of the money was cast upon them by the force of circumstances. They were consequently under the obligation of taking reasonable care of it until it could be returned to the true owner, or otherwise disposed of, and they may therefore maintain such actions or proceedings as may be necessary to enable them to retain or recover its possession. The fact that the money was found on the premises of the defendants, or that the plaintiffs were in their service at the time, can in no way affect the plaintiffs' right to possession, or their duty in reference to the lost treasure. Hamaker v. Blanchard, 90 Pa. 377, 35 Am. Rep. 664; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172; Tatum v. Sharpless, 6 Phila. 18; Durfee v. Jones, 11 R. I. 588, 23 Am. Rep. 528; Bridges v. Hawkesworth, 21 L. J. Q. B. N. S. 75, 15 Jur. 1079. We are of the opinion, therefore, that the case should have gone to the jury, and, unless it should appear that the defendants are the owners of the money, they must return the possession thereof to the plaintiffs, in order that they may make lawful disposition thereof.

lost property and treasure trove.
erty was such as was found on the surface
of the earth, and with which the owner had
involuntarily parted. The presumption aris-
ing from the place of finding was that the
owner had intended to abandon his property,
and that it had gone back to the original
stock, and therefore belonged to the finder
or first taker until the owner appeared and
showed that its losing was accidental, or
without an intention to abandon the prop-
erty. Treasure trove, on the other hand,
was money or coin found hidden or secreted
in the earth or other private place, the own-
er being unknown. It originally belonged
to the finder if the owner was not discov
ered; but Blackstone says it was afterward
adjudged expedient, for the purposes of
state, and particularly for the coinage, that
it should go to the King; and so the rule
was promulgated that property found on
the surface of the earth belonged to the
finder until the owner appeared, but that
found hidden in the earth belonged to the
King. 1 Bl. Com. *295. In this country the
law relating to treasure trove has general-
ly been merged into the law of the finder
of lost property, and it is said that the
question as to whether the English law of
treasure trove obtains in any state has never
been decided in America. 2 Kent, Com.
*357; 26 Am. & Eng. Enc. Law, p. 538.
But at the present stage of the controversy
it is immaterial whether the money discov-
ered by plaintiffs was technically lost prop-
erty or treasure trove, or, if treasure trove,
whether it belongs to the state or to the
finder, or should be disposed of as lost
property if no owner is discovered. In
either event the plaintiffs are entitled to
the possession of the money as against the
defendants, unless the latter can show a bet-
ter title. The reason of the rule giving the
finder of lost property the right to retain it
against all persons except the true owner
applies with equal force and reason to money
found hidden or secreted in the earth as to
property found on the surface. It is thus
stated in Armory v. Delamirie, 1 Smith
Lead. Cas. pt. 1, *475: "Every one on whom
the possession of chattels personal is cast
65 L. R. A.

Judgment reversed, and new trial or

dered.

NEW YORK COURT OF APPEALS.

John WANAMAKER, Respt.,

v.

Simon J. WEAVER, Appt.

(176 N. Y. 75.)

1. A man is not bound to pay for necessaries furnished to his wife with whom he is living, upon any theory of implied agency on her part, where she was amply supplied with articles of the same character as those purchased, or was furnished with ready money with which to pay cash

for them.

2. A merchant may continue to furnish necessaries to a woman upon the credit of her husband, where she is known to him, and he has been in the habit of doing so, until

he receives notice from the husband forbidding him to do so any longer.

(Parker, Ch. J., dissents.)

(October 6, 1903.)

No1E.-Liability of the husband for necessaries furnished wife while living with him.

I. Scope, 529.

II. Introductory, 529.

III. Personal necessaries.

a. Implied agency in law, 529.

b. Effect of notice to tradesmen, 532.

IV. Family necessaries, 532.

A

PPEAL by defendant from a judgment of the Appellate Division of the Supreme Court, Fourth Department, reversing a judgment of the Monroe County Court in his favor in an action brought to recover the purchase price of goods sold and delivered. Reversed.

The facts are stated in the opinion. Messrs. John Van Voorhis & Sons, for appellant:

The common-law liability of the husband for necessities and suitable comforts has always rested on the assumption that the credit was given to the husband, and not to the wife, and the purchase was made with his implied consent.

There had to be an agency on the part of the wife. This could be the agency of necessity, as it is sometimes called, arising from the marital relation. When the husband has failed to supply the wife with nec

| by reason of his obligation, as such, to support and maintain his wife, but also on account of the presumptive agency arising from cohabitation, as well as on account of any acts or omis sions constituting an assent, actual or constructive, on his part, have been taken, and constitute the subject-matter of this annotation.

Decisions as to the liability of the husband when the wife is such by repute only have been'

V. Husband's liability affected by style of excluded, as have, also, those deciding merely

life he adopts.

a. In general, 534.

b. Effect of notice to tradesmen, 538.
c. Burden of proof, 538.

VI. Presumptive agency arising from cohab

itation.

a. In general, 539.

b. May be rebutted.

1. In general, 539.

2. By proof of ample provision oth-
erwise made by husband.
(a) In general, 540.
(b) Allowance, 542.
3. By proof of notice to tradesmen,

544.

4. By proof of authority in wife
privately withdrawn, 545.

5. By proof of extravagance of the
purchases, 547.

6. Burden of proof, 548.

VII. Authority implied from husband's assent to previous transactions, 548.

VIII. Liability of husband, by reason of estop

pel or ratification, for wife's purchases
upon his credit of articles for personal
use, 549.

IX. When husband is an infant, 550.

X. Money loaned wife to purchase necessaries, 550.

XI. In absence of certainty as to whom credit was given, 551.

XII. Statutcs, 551.

I. Scope.

In selecting the cases for this note, the following lines have been drawn: All decisions discussing the liability of the husband, not only

whether the purchases made were "necessaries," without going into the question of the husband's liability for them except by implication.

II. Introductory.

The want of early English authorities upon this general question was accounted for in Manby v. Scott, Sid. pt. 1, p. 109, 2 Smith, Lead. Cas. 450, as follows: "The reason of which, according to some, is the discretion of our ancestors, which was so great that they would not publish and bequeath such matters to posterity in order that bad wives and bad husbands might not know their power, which might render the one cruel and the other disobedient, and, so long as they were ignorant of it, they would not enBut, according to others, deavor to enforce. the reason is.-that there was no such great cruelty in times past; nor did there ever occur in practice such a case as is now for judgment before us."

III. Personal necessaries.

a. Implied agency in law.

The liability of a husband for actual, personal, necessaries furnished his wife rests first of all upon contract,-his contract with her, entered into by the fact of marriage, to support and maintain her.

The true ground of her hubsand's liability for necessaries for his wife is his duty arising from the marriage relation. Black v. Bryan, 18 Tex. 453; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362, 50 N. W. 77.

But, if he absolutely refuses or neglects to do his duty in this regard, the wife has no power,