that, wherever a wife's contract made during marriage binds the husband, it is on the ground that she entered into it as his agent. Now that she may be appointed his agent in the same way that any other [*285] individual may, either by express words, or by implication, I have already mentioned; and you will find that illustrated by the late case of M'George v. Egan, 5 Bing. New Cas. 196, 35 E. C. L. R. I am not, however, now speaking of that sort of agency which is purely conventional, and in no way depends on the relation of husband to wife, inasmuch as it may be conferred on any one else; but of another and a peculiar sort of agency, which is implied from the circumstance of two persons living together as man and wife, from which circumstance a presumption arises that the wife has authority to bind the husband by her contracts for necessaries suitable to his fortune and rank in life. This is very clearly explained by Lord Holt, in Ethrington v. Parot, L. Raym. 1006; Waithman v. Wakefield, 1 Camp. 120. But then this must be taken subject to two observations: first, that the contract must be for necessaries; secondly, that the party making it must not have been forbidden to trust her.

Now, with regard to the question what are neces

This agency (the existence of which is a question for the jury, Lane v. Ironmonger, 13 Mees. & Welsb. 368; Casteel v. Casteel, 8 Blackford, 240), is, however, so far as necessaries are concerned, to be presumed from the mere fact of cohabitation; M'Cutcheon v. M'Gahey, 11 Johnson, 281; Fredd v. Eves, 4 Harrington, 385; Connerat v. Goldsmith, 6 Georgia, 14; Henderson v. Stringer, 2 Dana, 292; so much so, that it matters not whether the woman be really the wife of the man sought to be charged, or only appear so to be, if he allow her to live with him and pass for his wife; Watson v. Threlkeld, 2 Esp. 637; Blades v. Free, 9 Barn. & Cress. 167, 17 E. C. L. R.

saries, it is a question which always and obviously depends upon the circumstances of the particular case under discussion for the time being. It is one which is continually arising, and of which there are many reported examples (see Hunt v. De Blaquiere, 5 Bing. 550, 15 E. C. L. R.; Clifford v. Layton, M. & M. 101, 22 E. C. L. R.), but the cases most frequently referred to on the subject are *Montague v. Benedict, [286] 3 B. & C. 631, 9 E. C. L. R.; and Seaton v. Benedict, 5 Bingh. 28, 15 E. C. L. R. The name of the defendant probably strikes you as fictitious, and in truth it is so, being taken from a play of Shakspeare called Much ado about Nothing, in which one of the characters is a young officer named Benedict, who protests vehemently against marriage. The real defendant was a highly respectable professional gentleman, and it was sought in Seaton v. Benedict to charge him with a bill contracted by the lady for articles of millinery of a very expensive description.' It appeared at the trial that she was already supplied with all necessary articles of dress; and the Court held, on a motion for a new trial, that the defendant was in point of law entitled to a verdict.

In the other case of Montague v. Benedict, the goods supplied were articles of jewellery to the amount of 837., which had been delivered in the course of two months. The plaintiff's evidence was, that the defendant lived in a furnished house of which the rent was 2007. a-year, and that the lady had a fortune of 40007.; the defendant's, that the lady was already

1 So in Lane v. Ironmonger, 13 Mees. & Wels. 368, where the plaintiff's bill for bonnets and lace amounted to over £5000 for part only of a single year, and the extravagance of the bill was held to be a proper element to be considered by the jury upon the question of the husband's permission and authority having been given.

supplied with sufficient jewellery. The jury found a verdict for the plaintiff; but the Court set it aside, on the ground that there was no evidence to support it. Mr. J. Bayley said,

"If the husband and wife live together, and the husband will not supply her with necessaries, or the means of obtaining them, then, although she has her remedy in the *Ecclesiastical Court, [*287] yet she is at liberty to pledge the credit of her husband for what is strictly necessary to her own support. But, whenever the husband and wife are living together, and he provides her with necessaries, the husband is not bound by contracts of the wife, except where there is reasonable evidence to show that the wife has made the contract with his assent. Cohabitation is presumptive evidence of the assent of the husband, but it may be rebutted by contrary evidence;' and when such assent is proved, the wife is the agent of the husband duly authorized." (a)

These observations of Mr. J. Bayley support the latter of the two observations to which I adverted,

(a) The agent's authority is determinable either by revocation, by the discharge of his particular functions, or by the death of his principal, as in the case of Smout v. Ilbery, where the creditor was rendered remediless, as against the agent (for the principal was known), and also against his successor; though Pothier says:"Although the commission terminates by the death of the person giving it, and there appears a repugnancy in supposing me to contract by the ministry of another, who after my death contracts in my name; yet if he contracts in my name after my death, but before it could be known at the place where the contract is made, such contract shall oblige my successor as if I had actually contracted by the ministry of the agent." Upon which, Evans thus comments :"I do not think this decision would be admitted by the courts in England. If the contract is enforced it must be either as the act of the party deceased, or of his executor. The first supposition is absurd, and the other imputes to the executor an assent which he has not given, and which, if he does give, induces a personal obligation against himself."

As, for instance, by showing that the tradesman gave credit to the wife herself; Connerat v. Goldsmith, 6 Georgia, 14.

namely, that the contract must not only be for necessaries suitable to the husband's fortune and degree, but that the person making it must not have been forbidden to contract with the wife on his

[*288]

account.

This point, indeed, had been decided long before by the majority of the judges in the Exchequer Chamber in a case of Manby v. Scott, 1 Lev. 4, 1 Siderfin, 109. The discussions in this case were exceedingly long and elaborate; and, as frequently happens in the old reports, the reasons given in some instances almost ludicrous for instance, Mr. Justice Twisden, who was at first of opinion that it was not in the husband's power to prohibit another from trusting his wife for necessaries, gave as a reason that, if he might prohibit one person, he might go on doing so, till he had at last prohibited every one in England; and then, says he, if he were to join the king's enemies, his wife must go too, and then she would be hanged; or stay at home, and then she would be starved, which he remarked would be inconvenient. However, the majority of the Court were of opinion, that the husband may prohibit a particular person from trusting his wife even for necessaries, and that, if he trust her in defiance of that prohibition, he cannot hold the husband liable.'

It must not, however, be supposed that a husband will not be liable for necessaries furnished the wife, when he, without fault on her part, refuses to supply her with them, even although he may have given notice not to trust her. It is only when he himself supplies her with necessaries that a notice will be effected to protect her; Rotch v. Miles, 2 Connect. 638; Kimball v. Keyes, 11 Wendell, 33; Emery v. Neighbor, 2 Halsted, 142; Billing v. Pitcher, 7 B. Monroe, 458; Fredd v. Eves, 4 Harrington, 385; and it would seem that in any case notice by newspaper is insufficient, unless it was proved to have reached the party who supplied the articles; Fredd v. Eves. In such cases as these the husband is liable without

The points which we have been hitherto considering all arise in cases in which the husband and wife continue to live together. But if the wife, when she makes the contract, is living separated from her husband, the case is quite different; and the only question is, whether the separation is with the [*289]

husband's assent, or produced by the husband's misconduct. If the husband drive his wife from home, or if he so misconduct himself that it is morally impossible and unreasonable that she should continue to reside in his house, he sends her into the world with authority to pledge his credit for her necessary expenses. And this authority he cannot revoke or control by any notice or prohibition whatever. "If a man," said Lord Eldon, in Rawlyns v. Vandyke, 3 Esp. 251, "will not receive his wife into his house, or turns her out of doors, he sends her with credit for her reasonable expenses."-" Where a wife's situation in her husband's house," says Lord Kenyon, in Hodges v. Hodges, 1 Esp. 441, "is rendered unsafe, from his cruelty and ill-treatment, I shall rule it to be equivalent to his turning her out of the house, and that the husband shall be liable for necessaries furnished to her under those circumstances." See Houliston v. Smyth, 3 Bing. 127, 11 E. C. L. R.; Boulton v. Prentice, Str. 1214.1

his assent, and hence his liability necessarily rests on other grounds than those springing from the law of principal and agent, as is clearly shown in the American note to Manby v. Scott, 2 Smith's Lead. Cases, 378.

1

See also Sykes v. Halstead, 1 Sandford's S. C. R. 483; Rutherford v. Coxe, 11 Missouri, 347; Evans v. Fisher, 5 Gilman, 569; Fredd v. Eves, 4 Harrington, 385; Pidgin v. Cram, 8 N. Hamp. 350; Clement v. Mattison, 3 Richardson, 93. And it is not necessary that actual bodily cruelty should be used to her, as it has been held (overruling Harwood v. Heffer, 3 Taunton, 421) that if a husband, by bringing another woman to live under his roof as his mistress, thereby