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because he received sufficient property with the wife, then by the same reason, if the wife had brought no fortune to her husband, and judgment was recovered against him during coverture, relief ought to be afforded to the husband against this judgment after his wife's death. He declared, that the rule could not be disturbed by a court of equity; and it has continued unaltered to this day The husband is liable, not as the debtor, but as the husband. It is still the debt of the wife, and if she survive her husband, she continues personally liable." It has also been held by the K. B. in Miles v. Williams, that the debts of the wife dum sola, as well as the husband's debts, are discharged by the bankruptcy of the husband. It is clear, that a certificate of bankruptcy discharges him; and Lord Ch. J. Parker thought, that the wife was also discharged for ever, and not merely during the husband's life, though on that point, he said, it was not necessary to give a decided opinion.
The husband is bound to provide his wife with necessaries suitable to her situation, and his condition in life; and if she contracts debts for them during cohabitation, he is obliged to pay those debts; but for any thing beyond necessaries he is not chargeable. He is bound by her contracts for ordinary purchases, from a presumed assent on his part; but if his dissent be previously made known, the presumption of his assent is rebutted, and it is said he is not liable; though the better opinion would seem to be, that he may still be liable; but the seller would be obliged to show, at least, the absolute necessity of the purchase for her comfort. If the tradesman furnishes goods to the wife, and gives the credit to her, the husband is not liable. Nor is he liable for money lent to the wife. unless his request be averred and shown.e
b 1 P. Wms. 249.
c Etherington v. Parrot, 1 Salk. 118. 2 Lord Raym. 1006. S. C.
d 5 Taunton, 356.
e 7 Ibid. 432.
husband makes a reasonable allowance to the wife for necessaries during his temporary absence, and a tradesman, with notice of this, supplies her with goods, the husband is not liable, unless the tradesman can show, that the allowance was not supplied. If the husband abandons his wife, or they separate by consent, without any provision for her maintenance, of if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. But if the wife elopes, though it be not with an adulterer, he is not chargeable even for necessaries. The very fact of the elopement and separation, is sufficient to put persons on inquiry, and whoever gives the wife credit afterwards, gives it at his peril. The husband is not liable unless he receives his wife back again. The duties of the wife, while cohabiting with her husband, form the consideration of his liability. He is, accordingly, bound to provide for her in his family, and while he is not guilty of any cruelty, and is willing to provide her a home, and all reasonable necessaries there, he is not bound to furnish them elsewhere. All persons supplying the food, lodging, and raiment, of a married woman, living separate from her husband, are bound to make inquiries, and they give credit at their peril.e
It has been a question, whether, if the wife elopes, and repents, and returns again, and her husband refuses to receive her, he is then bound for her necessaries. The opinion of Lord Ch. J. Raymond, in Child v. Hardyman, d seems to be, that he would be liable; for he says, that if the husband should refuse to receive the wife, "from that time
a 4 B. & Ald. 252.
b Robinson v. Gremold, 1 Salk. 119. Morris v. Martin, Str. 647. Child v. Hardyman. Str. 875. Manby v. Scott, 1 Mod. 124. 1 Sid. 109. 1 Lev. 4. S. C. 12 Johnson, 293. 3 Pickering, 289. Kirkpatrick, Ch. J. 2 Halsted, 146.
C McCutchen v. M'Gahay, 11 Johns. Rep. 281.
d 2 Str. 875.
it may be an answer to the elopement." Lord Eldon subscribed to that case, and the same doctrine has been declared in this state. It has also been a debateable point, whether, if the husband should refuse to provide necessaries for his wife, and prohibit a particular person, or any person, from trusting her, and she should, notwithstanding the prohibition, be trusted with necessaries suitable to her age and degree, and rank in life, the law would then, notwithstanding such prohibition, raise an assumpsit against the husband. In the case of Manby v. Scott, in the reign of Charles II, which was argued many times at the bar, and then in the Exchequer, by all the judges of England, it appeared to be the opinion of a large majority of the judges, that the husband could not be charged even with necessaries for the wife, against his express previous prohibition to trust her, and that her remedy would be in the Spiritual Court for alimony. But the minority of the court held, that the husband would be chargeable from the necessity of the case; and that the husband cannot deprive the wife of the liberty which the law gives her of providing necessaries at his expense, for her preservation. This opinion of the minority seems to be the received law at this day, and the extreme rigour of the old rule is relaxed. The husband is bound to provide his wife with necessaries, when she is not in fault, from a principle of duty and justice; and the duty will raise an assumpsit independent of his consent, and when no consent can be inferred, as in the case of a refusal on his part to provide her with necessaries. If he turns her out of doors, and forbids all mankind from supplying her with necessaries, or if she receive such treatment as affords a reasonable cause for her to depart from his house, and refuse to cohabit with him, yet he will be bound to fulfil her contracts for necessaries,
a 11 Johns. Rep. 281. 12 Ibid. 293. 3 Esp. Cases, 256.
b 1 Mod. 124. 1 Sid. 109. 1 Lev. 4. S. C., and the case is given at large in Bacon's Abr. tit. Baron and Feme.
suitable to her circumstances, and those of her husband. The case of Bolton v. Prentice,a which arose in the K. B. as late as 18 Geo. II., goes the length of establishing this reasonable doctrine. The wife took up necessaries on credit after the husband had used her ill, and abandoned her, and forbidden the plaintiff from trusting her. But the K. B. held, that the husband had no right to make such a prohibition in such a case, and they distinguished the case from that of Manby v. Scott, because, in that, the wife was guilty of the first wrong; and they sustained the action of assumpsit for the goods sold to the wife.
In a very modern decision in the K. B., it was held, that if a man turned away his wife without justifiable cause, he was bound by her contracts for necessaries suitable to her degree and estate. If they live together, he is only bound by her contracts made with his assent, which may be presumed. If the wife goes beyond what is reasonable and prudent, the tradesman trusts the wife at his peril, and the husband is not bound but by his assent, either express or reasonably implied. The doctrine of the Supreme Court of this state is to the same effect.c
The husband is liable for the torts and frauds of the wife committed during coverture. If committed in his company, or by his order, he alone is liable. If not, they are jointly liable, and the wife must be joined in the suit with her husband. Where the remedy for the tort is only damages by suit or a fine, the husband is liable with the wife; but if the remedy be sought by imprisonment, on execution, the husband is alone liable to imprisonment. The wife, during coverture, cannot be taken on ca. sa. for her debt dum sola, or a tort dum sola, without her husband; and if he escapes, or is not
a Str. 1214.
6 Montague v. Benedict, 3 Barn. & Cress. 631. c M'Cutchen v. M Gahay, 11 Johns. Rep. 281. dB Blacks. Com. 414.
taken, the court will not let her lie in prison alone." If the tort or offence be punished criminally by imprisonment, or other corporal punishment, the wife alone is to be punished, unless there be evidence of coercion, from the fact, that the offence was committed in the presence, or by command of the husband. This indulgence is carried so far as to excuse the wife from punishment for theft committed in the presence, or by the command of her husband.b But the coercion which is supposed to be conveyed by the command or presence of the husband, is only a presumption of law, and, like other presumptions, may be repelled.
III. How far the wife has a capacity at law during coverture, to act as a feme sole.
The disability of the wife to contract so as to bind herself, arises not from want of discretion, because she has entered into an indissoluble connexion, by which she is placed under the power and protection of her husband, and because she has not the administration of property, but has given up to him all personal property in possession, and the right to receive all such as may be reduced into possession. But this general rule is subject to certain exceptions, when the principle of the rule could not be applied, and when reason and justice dictate a departure from it.
In the first place, a wife may pass her freehold estate by a fine, and this was the only way in which she could, at common law, convey her real estate. She may, by a fine, and a declaration of the uses thereof, declare a use for her husband's benefit. So, if the husband and wife levy a fine, a declaration of the uses by the husband alone, will bind the wife and her heirs, unless she disagrees to the uses. The husband must be a party with the wife to her conveyance,
a Jackson v. Gabree, 1 Vent. 51. b1 Hawk. P. C. b. 1. c. 1. s. 9.
c 1 Vesey 305. 1 H. Blacks. 346.
d Beckwith's case, 2 Co. 57. Swanton v. Raven, 3 Alk. 105.