be liable after cohabitation has ceased (b); nor will his executor be liable for debts which she has contracted since his death, whether information of his death had or had not been received at the time of the contract (c).

authority

butted.

As the implied authority given by the husband The implied rests only on prima facie evidence, it is liable to may be rebe rebutted by express proof that the husband prohibited the vendor (or his agent), from giving credit to the wife (d); and in such case he will not be liable even for necessaries. Or the presumption of authority may be rebutted even by implication; as, where, during temporary absence, the husband made an allowance to his wife, for supplying herself and her family, and a tradesman, with notice of this circumstance, furnished butcher's meat on credit (e). So, the husband is not liable where he supplies her with every necessary suitable to her rank and station, and a tradesman allows her to incur an extravagant debt without the husband's knowledge (ƒ).

(b) Munro v. De Chemant, 4 Campb. 215, cor. Lord Ellenborough, C. J.

(c) Blades v. Free, 9 B. & C. 167; S. C. 4 Man. & Ry.

282.

(d) Etherington v. Parrott, 1 Salk. 118; Longworth v. Hackmore, Bull. N. P. 135; Rawlins v. Vandyke, 3 Esp. 250, per Lord Ellenborough, C. J.

(e) Holt v. Brien, 4 B. & A. 252.

(f) Seaton v. Benedict, 5 Bingh. 28; Baker v. Baber, Selw. N. P. 284; Keniston v. Goodall, ibid.

No presumption of

where the

goods are

not necessa

In general, where the goods furnished are not authority necessaries, the presumption is against the assent of the husband having been given, and the onus ries. of proof lies on the plaintiff; therefore, where the vendor brought an action for expensive jewellery furnished to the wife, but could prove neither assent nor knowledge on the part of the husband, he was nonsuited (g). So, where the vendor supplied costly dresses to the wife, without authority, and took her note in payment, it was held that he could not recover (h). The husband will not be liable for money lent to his wife, without his authority (i); even, as it seems, if the money was applied to the purchase of necessaries (k). Otherwise, if the money was lent at his special instance and request (1).

But express authority may be given.

If the husband gives express authority to his wife to act as his agent, or what amounts to the same, allows her to contract with his knowledge, he will be liable whether the contract be for necessaries or not. This was held even where the parties had been separated for some time, the

(g) Montague v. Benedict, 3 B. & C. 631; Montague v. Espinasse, 1 C. & P. 356, 502; Montague v. Baron, 5 D. & R. 532. (h) Metcalfe v. Shaw, 3 Campb. 22.

(i) Stone v. M'Nair (in error), 7 Taunt. 432; S. C. 4 Price 48; 1 B. Moore 126.

(k) Ibid.; 1 Salk. 387.

[But the husband would be liable in

equity; Harris v. Lee, 1 P. Wins. 482.]

(1) Stephenson v. Hardy, 3 Wils. 388; S. C. 2 Bl. Rep. 872.

husband having been imprisoned, and the wife in the meantime having conducted the business, and after his return having continued the management (m). The assent of the husband may be implied to contracts of the wife, where he has ratified previous contracts of the same nature and in the same business (n). A feme covert may, with her husband's assent, indorse a promissory note (o), or bill of exchange (p), or borrow money (q). But if the vendor has given credit to the wife alone, as by debiting her in his books, or drawing bills for her acceptance, the husband will not be liable for the goods, although proof can be given that he has seen them in her possession (r).

promise to

ing.

If after the husband's death the wife promises Subsequent to pay a debt which she has previously contracted, pay is bindthe moral obligation will be a sufficient consideration to support the promise (s); but all the circumstances, which show that the money was

(m) Petty v. Anderson, 3 Bingh. 170; S. C. 2 C. & P. 38; see Plimmer v. Sells, 3 Nev. & M. 422.

(n) Forsyth v. Milne, Paley Pr. & A. p. 163. 3rd Ed.

(0) Coates v. Davies, 1 Campb. 485; Barlow v. Bishop, 1 East, 432; S. C. 3 Esp. 266.

(p) Prestwich v. Marshall, 4 C. & P. 594; S. C. 7 Bingh. 565; Prince v. Brunatte, 1 Bingh. N. S. 435.

(q) Stephenson v. Hardy, 3 Wils. 388.

(r) Bentley v. Griffin, 5 Taunt. 356; see Metcalf v. Shaw, 3 Campb. 22; Taylor v. Brittan, 1 C. & P. 16 n.

(s) Lee v. Muggeridge, 5 Taunt. 36.

due in conscience, ought to be correctly set forth in the declaration (t).

Where hus- 2. Where husband and wife do not cohabit, and the act of separation is on the part of the husband.

band sepa

rates from

his wife, he is equally liable.

In general, where the separation has been caused by the husband, he will be equally liable for the debts of his wife, as if cohabitation continued; or, rather perhaps in a still greater degree, if he does not contribute to her proper maintenance (a). Therefore, where he deserts his wife or turns her out of doors causelessly, he is liable (b), and in such case if he does not properly provide for her, he cannot make a particular prohibition against individual tradesman (c).

any

It has been frequently held at nisi prius, that the law is the same when the husband constructively turns his wife out of doors, as by cruelty and ill

[Lord Tenterden,

(t) Littlefield v. Shee, 2 B. & Adol. 811. C. J. said that the doctrine, that a moral obligation is a sufficient consideration for a subsequent promise, must be received with some limitation, ib. 813; and see 2 Wms. Saund. 137 d. note b.]

(a) Thompson v. Hervey, 4 Burr. 2177. [Where the parties are living separate, and an action is brought for necessaries supplied to the wife, they ought to be specially stated to have been provided for her; Ramsden v. Ambrose, 1 Str. 127.]

(b) Bac. Abr. Baron and Feme, H.; Bull. N. P. 185; Shepherd v. Mackoul, 3 Campb. 326; Warr v. Huntly, 1 Salk. 118; S. C. Holt, 102; Ewers v. Hutton, 3 Esp. 255. See Jenkins v. Tucker, 1 H. Bl. 90.

(c) Bolton v. Prentice, 2 Str. 1214, reported more fully Selw. N. P. 281; Harris v. Morris, 4 Esp. 41.

treatment (d); or by rendering the house unfit for her residence by bringing another woman to reside in it (e); or where the husband is guilty of any impropriety which affords a reasonable ground of justification to the wife in quitting his protection. And these cases seem to be good law, notwithstanding the doubts thrown upon them in the case of Horwood v. Heffer (f), for the latter case has been disapproved of, and may be considered as overruled (g). It is a question for the jury, whether the apprehension of personal violence and ill-treatment has been sufficiently great to justify the wife in removing from the house (h). If the wife has left the house for a reasonable cause, it is not sufficient to discharge the husband's liability that he has merely requested her to return to his protection (i).

(d) Hodges v. Hodges, 1 Esp. 441; Emery v. Emery, 1 Y. & J. 501; Reed v. Moore, 5 C. & P. 200.

(e) Aldis v. Chapman, Selw. N. P. 281, coram Lord Ellenborough, C. J.; Liddlow v. Wilmot, 2 Stark. N. P. C. 86.

(f) 3 Taunt. 421; Lawrence, J., said "the wife might, if she thought fit, have sued for alimony, and a divorce a mensâ et toro.” And Mansfield, C. J. thought nothing short of actual terror and violence would support the action.

(g) Houliston v. Smyth, 3 Bingh. 127; S. C. 2 C. & P. 22: see the judgment of the court. Best, C. J. said, that if he had recollected the cases decided by Lord Ellenborough (Aldis v. Chapman, and Liddlow v. Wilmot), he should have decided, even at nisi prius, against the case of Horwood v. Heffer; see 3 Bingh. 130. (h) Ibid.

(1) Emery v. Emery, 1 Y. & J. 501. (Alexander, C. B. dubntante.)

D