tained from the Arches' Court, but that such application was not usually made, unless payment of the alimony were discontinued. It was held, that the husband was not liable in an action for necessaries supplied to the wife, while the above payments were going on; that such payments could not be considered a voluntary allowance; and therefore, that a court of law could not inquire whether or not they were sufficient in proportion to the husband's means. But a husband is liable for necessaries provided for his wife pending a suit in the Ecclesiastical Court for adultery and cruelty, and before alimony decreed; although a decree afterwards made direct the alimony to be paid from a date anterior to the time when the necessaries were furnished (f).

In these cases the presumed authority of the husband, arising from cohabitation, does not exist; and it is incumbent on a tradesman to make inquiries; and if he trust the wife, he does so at his peril: for no notice to him that the wife has a separate maintenance is necessary (g), unless he had trusted her before, and was not aware of the separation (h), and it had taken place so recently that it could not have become a matter of notoriety in the place where the husband resided (i). And it seems that if goods be supplied to a married woman during her separation from her husband, the plaintiff must prove that the separation occurred under such circumstances as will render the husband primâ facie liable (k). After such proof has been adduced, it is incumbent on the husband, when sued for necessaries furnished to his wife during their separation, under an agreement for a separate maintenance, to prove the adequacy of the allowance and the due payment of it; and if it be inadequate, or not duly paid, he is liable (7). And if a husband, on separating from his wife, in

(f) Keeganv. Smith, 5 B. & C. 375; 8 D. & R. 118, S. C.

(g) Mizen v. Pick, 3 M. & W. 481. (h) Ozard v. Darnford, 1 Selw. N. P. 9th ed. 272; Hinton v. Hudson, Freem. 248, 249.

(i) Rawlyns v. Vandyke, 3 Esp. 250; Todd v. Stokes, Ld. Raym. 444; 12 Mod. 244, S. C.

(k) Clifford v. Laton, 3 C. & P. 15; M. & M. 101, S. C.; Mainwaring v. Leslie, M. & M. 18; 2 C. & P. 502, S. C.; Bird v. Jones, 3 Man. & R. 121. Where in an action on an agreement to hire a house, made between plain

tiff and defendant's wife, and for use and occupation of the premises by defendant's wife, it appeared that defendant and his wife were separated, but that on one occasion defendant was in her house about a fortnight, and joined in giving a receipt for rent from her lodgers: it was held, that upon the count for use and occupation the judge ought to have left it to the jury to say whether the defendant had not adopted the contract of his wife; Barnes v. Jarrett, 2 Jurist, 988.

(1) Nurse v. Craig, 2 New R. 148; Hodgkinson v. Fletcher, 4 Camp. 70;

stead of granting her a continuing allowance, assign, by deed, certain property absolutely to trustees for her benefit; he must prove, when sued for necessaries supplied to her after their separation, that the trustees gave effect to the deed, by taking possession of the property (m). And although the husband and wife be separated, and she sue him in the Ecclesiastical Court, and obtain a divorce a mensâ et thoro, and a decree of that Court that he allow her alimony, yet, if he omit to pay it, her implied authority to order necessaries for herself on his credit revives; and a tradesman who supplies her with them after such his default may sue him (n). The husband is also responsible if, notwithstanding the sufficiency and due liquidation of the allowance, he has promised to pay her debt (o). But where the subsequent promise is conditional, and the husband is only liable in respect of such promise, the plaintiff must show that the condition has been complied with (p).

It seems that if a married woman, separated from her husband, be amply provided with permanent funds and resources of her own, although not supplied by him, he is not liable for necessaries furnished to her (g); but a voluntary pension allowed her by the crown" during pleasure" will not exempt him from responsibility (r).

Where a husband wrongfully turns away his wife, and she does not commit adultery, he cannot, by a general advertisement in the newspapers, or even by a particular notice to individuals not to trust her, exempt himself from a demand for necessaries suitable to his station and circumstances, furnished to her whilst so living apart from him, even by a person who had been desired by him not to trust her (s). In such case there is an implied

Lidlow v. Wilmot, 2 Stark. R. 86, and next note; Mizen v. Pick, 3 M. & W. 481; Dixon v. Hurrell, 8 C. & P. 717.

(m) Burrett v. Booty, 8 Taunt. 343. (n) Hunt v. Blaquiere, 5 Bing. 550; 3 M. & P. 108, S. C.

(0) Hornbucklev. Hornbury, 2 Stark. R. 177; Williams v. Fowler, M'Clel. & Y. 269; Bird v. Jones, 3 M. & R.

121.

(p) Holt v. Brien, 4 B. & Ald. 252,

254.

(q) Lidlow v. Wilmot, 2 Stark. R. 86; M. & M. 101, S. C.; Dixon v. Hurrell, 8 Car. & P. 717,

(r) Thompson v. Harvey, 4 Burr.

2178.

(s) Todd v. Stokes, Ld. Raym. 444; Thompson v. Harvey, 4 Burr. 2177; and see Emmett v. Norton, 8 Car. & P. 506; Dixon v. Hurrell, 8 C. & P. 717; Hardie v. Grant, 8 C. & P. 512; Boulton v. Prentice, Stra. 1214, S. C.; more fully noticed in Selw. N. P. tit. Baron and Feme, 8th ed. 273; 9th ed. 269, note, 276; Ewers v. Hutton, 3 Esp. R. 255; Harris v. Morris, 4 id. 41'; per Cur. in Hunt v. Blaquiere, 3 M. & P. 108; 5 Bing. 550, S. C.; Montague v. Benedict, 3 B. & C. 635, per Bayley, J., Buller, N. P. 135.

credit for necessaries, which, as a wrong doer, he shall not be permitted to repel. But if he can show a consent and agreement on the part of the tradesman not to charge him with goods supplied to the wife, it may afford him a defence (t).

And it is a well-established principle, that if a husband personally ill treat his wife, and be guilty of cruelty towards her, so that, from reasonable apprehension of further personal violence, she is obliged to quit his roof, he is responsible for necessaries to the same extent as if he had expelled her therefrom (u). And, under such circumstances, a request by him that she would return, will not, it seems, determine his liability for necessaries supplied to her during their separation (r).

Lord Ellenborough is stated to have held (y), that if a husband, by bringing another woman under his roof as his mistress, render 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, as medicines in sickness, &c., during the separation; and this decision appears to be founded in good sense and justice; and the doctrine was approved of by Best, C. J., and Park, J., in Houliston v. Smyth (z). But the case of Hopwood v. Heffer (a) seems to uphold a contrary doctrine. In that case it appeared that the defendant had treated his wife with great cruelty; had taken another woman into his house, with whom he cohabited; that he had confined his wife in her chamber under a pretence of insanity (b), and that she had escaped; and that the necessaries for the value of which the action was brought were furnished to her after her departure. Lawrence, J. nonsuited the plaintiff, on the statement of these facts, without going into the evidence; and the Court refused a

(t) Per Coltman, J., Dixon v. Hurrell, 8 C. & P. 720.

(u) Hodges v. Hodges, Peak. Addit. C. 79; 1 Esp. R. 441, S. C.; Emery v. Emery, 1 Y. & J. 501; Houliston v. Smyth, 3 Bing. 127; 10 Moore, 482, S. C.; 2 C. & P. 22, S. C.

(x) Emery v. Emery, 1 Y. & J. 501; sed vide Hindley v. Marquis of Westmeath, 6 B. & Č. 200. In that case, however, the wife voluntarily left her husband against his will.

(y) Aldis v. Chapman, Middlesex Sittings after Tr. Term, 50 Geo. 3; 1 Selw. N. P. 8th ed. 272; 9th ed.

rule to set aside the nonsuit, and have a new trial. Lawrence, J. "You did not state any apprehension of her personal safety; you principally dwelt on the circumstance of the defendant's having placed a profligate woman at the head of his table, and having told the wife that if she did not like to stay there, she might dine in her own chamber. I thought, that, however improper that conduct might be, and however abhorrent to the feelings of a delicate woman, she might, nevertheless, have had necessaries if she had stayed there. She might, if she had thought fit, have sued for alimony and a divorce a mensâ et thoro." Mansfield, C. J.-" If this suit were maintainable, it would be necessary that the jury should, in the first place, determine whether the wife lawfully left her home or not; this would supersede the necessity of a suit for alimony, or a divorce a mensû et thoro. I think nothing short of actual terror and violence will support this action."

It has been held, that if a husband turn his wife out of doors, and it be necessary for her safety to exhibit articles of the peace against him, he is liable to an attorney employed by her for that purpose (c). But not for the expenses incurred by his wife in indicting him for an assault committed upon her (c); nor for the expenses incurred by the trustee of his wife appointed under a deed of separation in procuring a counterpart to be prepared and executed (d). So where a wife is indicted for keeping a disorderly house, which she had conducted with her husband's concurrence, he is bound to pay the attorney whom she employed to defend her, and by whom he knew she was defended, without expressing any dissent thereto (e).

4thly. Of a husband's liability on contracts entered into by his wife during her separation, occasioned by the act or misconduct of the wife.

The law respects the feelings of a husband on his wife's violation of her fidelity. Where a wife is guilty of the crime of adultery, and either elopes from her husband, or is by him expelled from his roof on that account; or even where, being com

(c) Grindell v. Godmand, 1 N. & P. 168; 5 Ad. & E. 755 ; Shepherd v. Mackoul, 3 Camp. 326; and see Harris v. Lee, 1 Peere Wms. 483, as to charging the husband's estate with expenses of curing wife of illness oc

casioned by his misconduct.

(d) Ladd v. Lynn, 2 M. & W. 265; 1 Jurist, 42, S. C.

(e) Williams v. Fowler, M'Clel, & Y. 269.

pelled by his cruelty to leave him, she is afterwards (ƒ) guilty of this offence, and he refuses to receive her, he is not liable even for the bare necessaries of life supplied to her after her adultery, (and during their separation (g)), although he do not generally or specially prohibit tradesmen from trusting her (h); and although he himself has likewise committed adultery, and has turned his wife out of doors, and she offer to return (¿).

Where a wife is sentenced to a temporary confinement as a punishment for some crime, the husband has been held not liable upon her agreement even for necessaries, if she be kept in an improper place by the covin of the gaoler (k). But in Manby v. Scott (1), the judges, whose opinions were favourable to the plaintiff's case, laid it down as clear law, that if a wife be a prisoner for felony, and the gaoler provide her with food, the husband may be charged for it.

However, the adultery of a wife after a formal separation by deed, whereby the husband covenanted with a trustee to allow her absolutely an annuity, has been held to afford no answer to an action for the arrears, although there be the sentence of an ecclesiastical court confirming the adultery (m).

If a wife improperly leave her husband without his consent, and continue absent from him, he is not liable even to a tradesman, who, after an express warning to him to the contrary, supplies her with necessaries, after her husband's refusal to receive her again upon her offer to return; although the wife were not furnished with the means of support by her husband; and although she had not committed adultery. This was decided by eight judges against three in the celebrated case of Manby v. Scott (n).

(f) See Hetherington v. Graham, 6 Bing. 135; 3 M. & P. 399.

(g) See ante, 162, and Emmett v. Norton, 8 C. & P. 506.

(h) Morris v. Martin, Stra. 647, 706; Hardie v. Grant, 8 C. & P.

512.

(i) Govier v. Hancock, 6 T. R. 603. Nor is he liable under such circum. stances to the penalty of 5 Geo. 4, c. 83, s. 3, for not supporting his wife; Rex v. Flintan, 1 B. & Ad. 227. The effect of his permitting her to remain in his house, or receiving her again, has been already noticed.

(k) Fowles v. Dinely, Stra. 1122. (7) 1 Sid. 118.

(m) Jee v. Thurlow, 2 B. & C. 547; 4 Dowl. & R. 11, S. C.; Baynon v. Batley, Bing. 256. See Lewis v. Lea, 3 B. & C. 291; 5 Dowl. & R. 98, S. C.; sed vide Hetherington v. Graham, 6 Bing. 135; 3 M. & P. 399, S. C.; ante, 170, n. (r).

(n) 1 Sid. 109; Bac. Ab. Baron and Feme, (H); and 1 Lev. 4, and 1 Mod. 128, S. C. See Hindley v. Marquis of Westmeath, 6 B. & C. 200; and observations on Manby v. Scott, in 3 M. & P. 119, 123; 5 Bing. 550, S. C. It would seem that in Manby v. Scott the wife had eloped with an adulterer.