Contracts binding Husband (During material in such a case, whether the income is derived from the CH. VIII. s. 3. wife's separate property, or from the allowance of the husband, or partly from one source and partly from the other (p). And it seems doubtful whether, if the separation be by mutual consent, the mere fact of the husband not agreeing to make his wife an allowance at all will give her authority to pledge his credit even for necessaries (q). But where, by the deed of separation, the husband covenants with a third party to make his wife a certain allowance, and he fails to pay it, the wife may pledge his credit for necessaries (). But where a husband on separating from his wife, instead of granting her a continuing allowance, assigned property to trustees for her separate use: and the trustees covenanted with the husband, that he should not be answerable for the debts of the wife; it was held that this, of itself, was not a good defence to an action against him for necessaries supplied to her after their separation; but that he must also show that the trustees had given effect to the deed by taking possession of the property which had been transferred to them thereunder (s). Separation). Query, as to effect of hus band not agreeing to make any allowance. payment of agreed allow Effect of non ance. husband If a married woman, who is separated from her husband, be Liability of amply provided with permanent funds and resources of her own, where wife although they are not supplied by him, he is not liable for neces- has funds of saries furnished to her (t). But the fact of her being in receipt her own, of a pension allowed her by the Crown "during pleasure," will not exempt him from such liability (u). self. It has also been suggested, that if a married woman, living or is able to separate from her husband, be able to earn enough to maintain support herherself, this circumstance will negative her implied authority to charge her husband for necessaries supplied to her during such separation (x). husband who Where a husband wrongfully turns away his wife, he is by law Liability of liable to support her; and it seems that he cannot, by a general advertisement in the newspapers, or even by a particular notice to individuals not to trust her, exempt himself from liability for necessaries suitable to his station and circumstances, furnished to (p) Biffin v. Bignell (1862), 7 H. & N. 877; Eastland v. Burchell (1878), 3 Q. B. D. 432. (q) See per Cur., Johnston v. Sumner (1858), 3 H. & N. 261, 270; and per Bramwell, B., Biffin v. Bignell (1862), 7 H. & N. 877, 879. (r) Nurse v. Craig (1806), 2 N. R. 148. (s) Burrett v. Booty (1818), 8 Taunt. 343, and see p. 205, supra. As to effect of non-payment of alimony, see Hunt v. De Blaquiere (1829), 5 Bing. 550; Hodg C.C. kinson v. Fletcher (1814), 4 Camp. 70; (t) Johnston v. Sumner (1858), 3 (u) Thompson v. Harvey (1768), 4 Burr. 2177. (x) Johnston v. H. & N. 261. Sumner (1858), 3 14 CH. VIII. s. 3. Contracts binding Husband (During Separation). or ill-uses his wife. Husband liable for necessaries supplied to wife for child. Costs of wife's her whilst so living apart from him (y). But whether if the wife, in such a case, had a sufficient settlement, or was able to earn a living for herself, the husband would still be liable to support her, has been questioned (z). So it is a well-established principle, that if a husband ill-treat his wife, and she, having reasonable grounds for apprehending further personal violence, quits his house, he is responsible for necessaries to the same extent as if he had expelled her therefrom (a). And it has been held that, in such a case, the husband cannot put an end to the separation and to his consequent liability, merely by desiring the wife to return to cohabitation (b). So Lord Ellenborough ruled (c), that if a husband, by bringing a mistress under his roof as his mistress, renders his house unfit for the residence of his wife, who thereupon removes and lives apart from him, the husband is bound to provide her with necessaries during the separation. And this decision, which appears to be founded in good sense and justice, was approved of by Best, C.J., and Park, J., in Houliston v. Smyth (d). So it has been held, that where the husband by his cruelty compels his wife to live apart from him, and there is no agreement for a separate maintenance, but only the payment of an allowance which is not sufficient to support the wife, regard being had to the means and position of the husband, he is liable for necessaries supplied to her (e). And where a wife was living apart from her husband, for reasons which were sufficient to justify her in so doing, and she had the lawful custody of an infant child under the repealed 2 & 3 Vict. c. 54; it was held that the reasonable expenses of providing for the child were part of the reasonable expenses of the wife, for which she could pledge her husband's credit (ƒ). If a husband turn his wife out of doors, and it be necessary legal proceed for her safety to exhibit articles of the peace against him, he is ings are necessaries for liable for the costs (g); and even before the Matrimonial Causes band is liable. Act, 1857, 20 & 21 Vict. c. 85, the wife had authority to pledge the husband's credit, by employing a proctor to obtain a separation on which hus Contracts binding Husband (During Separation). the ground of cruelty (h). And since that Act it has been held, CH. VIII. s. 3. that a solicitor employed by a wife, to take proceedings thereunder against her husband, to obtain a divorce on the grounds of cruelty and adultery, may sue the husband for his "extra costs," i.e., for the costs reasonably incurred by him, beyond the amount taxed and allowed as between party and party (i). But in order that the solicitor for the wife should be able to charge the husband, when the action for divorce is compromised or fails, he must prove that there were reasonable grounds for instituting the action, and the wife's own statements to the solicitor are not sufficienthe must examine into the grounds of the action himself (k). So, where the wife was indicted for keeping a disorderly house, which she had conducted with her husband's concurrence: it was held that he was bound to pay an attorney whom she employed to defend her, and by whom he knew she was defended without objecting thereto (l). And where a husband had deserted his wife, it was held that the legal expenses incurred by her, preliminary and incidental to a suit for restitution of conjugal rights; in obtaining counsel's opinion on the effect of antenuptial agreement for a settlement; and as to the mode of dealing with certain claims which had been made upon her, for necessaries supplied to her after her husband's desertion; and as to a distress for rent which was threatened on goods of the husband, which were in the house occupied by her, were necessaries for which she had authority to pledge his credit (m). But where a wife who had been ill-treated by her husband, indicted him for assaulting and imprisoning her: it was held that a party who had advanced money to the attorney for the prosecution, without which he would not have undertaken it, could not recover the amount from the husband, as money supplied to procure necessaries for her (n); the distinction being, that this was a proceeding taken, not for the protection of the wife, but for the punishment of the husband (o). Nor is the husband liable for the expenses of his wife's trustee, in procuring a counterpart deed of separation to be prepared and executed (p). Let us now consider the husband's liability on contracts entered into by his wife, during their separation, occasioned by the act or misconduct of the wife. CH. VIII. S. 3. Contracts binding Husband (During Separation). Where the wife is guilty of adultery (q), and either elopes or is expelled by her husband from his house, or if she be guilty of adultery while living apart from her husband in consequence of his misconduct, and there has been no subsequent condonation of the offence, her implied authority to pledge his credit is put an end to (r); and he ceases to be liable for necessaries supplied wife is guilty to her during their separation, although he do not, generally or Husband not liable where of adultery. Misconduct of Wife. specially, prohibit tradesmen from trusting her (s); and although he himself has likewise committed adultery, and his wife has offered to return (t). But where a tradesman had notice that the husband had separated from his wife, on a mere charge against her of adultery—of which no proof was given;-it was held that he was liable for such articles as the tradesman could prove were actually needed by the wife at the time he supplied them (u). Adultery is no answer to an action for arrears of an annuity under a separation deed (x); nor is even divorce in consequence of adultery (y). Where it appeared that the defendant, knowing that his wife had committed adultery, separated from her, but allowed her to remain in his house with two children bearing his name, and without making any provision for her, and she was living in the defendant's house in a state of adultery at the time the goods in question were delivered: it was held that he was liable (z); but this case may be explained on the ground that the wife remained the apparent mistress of the establishment (a); and it seems that if the husband, on separating from an adulterous wife, were to make a suitable provision for her support and that of his children, he would not be liable, even to a person who was not aware of the state in which the wife was living at the time (b). And so where a husband, after conniving at his wife's adultery, then turns her out of his house without means of support, he will be liable for necessaries supplied to her while so living separate (c). (g) But the verdict of a jury, in a suit (s) Morris v. Martin (1726), Str. 647; (t) Govier v. Hancock (1796), 6 T. R. 603; 3 R. R. 271. Nor is he liable, under such circumstances, to any penalty for not supporting his wife; Rex v. Flintan (1830), 1 B. & Ald. 227; Culley v. Charman (1881), 7 Q. B. D. 89. (u) Per Lord Abinger, C. B., Hardie (y) Charlesworth v. Holt (1873), L. R., 9 Ex. 38. (z) Norton v. Fazan (1798), 1 B. & P. 226. (a) See per Willes, J., in Cooper v. Lloyd (1859), 6 C. B., N. S. 519. (b) Atkyns v. Pearce (1857), 2 C. B., N. S. 763. (c) Wilson v. Glossop (1888), 20 Q. B. D. 354, C. A. CH. VIII. s. 3. Contracts binding Husband (During If a wife depart from her husband without his consent, and continue absent from him, he is not liable to a tradesman who, during the separation, supplies her even with necessaries; although not have been furnished with any means of support by Separation). she may her husband, and may not have been guilty of adultery (d); it does not appear to have been decided whether, if the wife, not having been guilty of adultery, offer to return to her husband, and he refuse to receive her, this is sufficient of itself to revive his consent. her authority to pledge his credit (e). but If, however, after an elopement, the wife return, and the husband be reconciled and receive her again, he becomes liable upon her contracts entered into after the reconciliation, precisely to the extent to which he was responsible before her elopement, and as if it had not taken place (ƒ). (d) Husband's Liability after Wife's Death. The husband is liable for the wife's funeral expenses, although sometimes these are ordered to be paid out of the separate estate (g). A husband who takes out administration is liable, like any other administrator, to debts as far as there are assets (h). But he is not liable for antenuptial debts by reason of taking his wife's property in his marital right (i). The husband is also entitled to his wife's separate estate, if she dies intestate, in his marital right (k). Husband not liable when wife leaves him without SECT. 4.-Contracts between Husband and Wife. (a) Effect of Marriage on Antenuptial Contracts (l). The marriage between obligor and obligee extinguished the Antenuptial contract, and it could not after be sued upon (m), except in the effect of mar (d) Johnston v. Sumner (1858), 3 H. & N. 261, 266; Manby v. Scott (1659), 1 Sid. 109, 129, Res. 3; Bac. Abr. Baron and Feme (H.); Hindley v. Marquis of Westmeath (1827), 6 B. & C. 200. (e) See Johnston v. Sumner (1858), 3 H. & N. 261, 266; Manby v. Scott (1659), 1 Sid. 109, 129, Res. 3; in which case notice had been given to the plaintiff not to trust the wife; and see observations on Manby v. Scott, in Hunt v. De Blaquiere (1829), 5 Bing. 550, 557, 560. (f) Robinson v. Greinold (1705), 1 Salk. 119; Harris v. Morris (1801), 4 Esp. 41. (g) See Bradshaw v. Beard (1862), 12 C. B., N. S. 344; In re MacMyn (1886), 33 Ch. D. 575. (h) Williams on Exors. ; and see sect. 23 of the Act of 1882; Turner v. Caulfield riage on. (1879), 7 L. R., Ir. 34. (i) Heard v. Stanford (1735), 3 P. Wms. 409; Bell v. Stocker (1882), 10 Q. B. D. 129. (k) See Surman v. Wharton, [1891] 1 Q. B. 491. (1) In the curious case of Dagg v. Dagg (1882), 7 P. D. 17, the spouses had agreed to live separate, the marriage being merely for the protection of the woman's reputation, and the husband's petition for divorce on the ground of adultery was dismissed. (m) Post v. Nedham (1611), 8 Rep. 135 a; Butler v. Butler (1885), 14 Q. B. D. 831. |