Delivery to Members of an Inchoate Company.

503

v. Anson, 7 B. & C. 409, 411. The defendant's interest may be proved by his acceptance of the shares in a mine, written at the foot of a certificate of transfer by the seller, although it be not stamped as a transfer; but if the document does not itself convey any legal interest, the admission of the defendant is not conclusive proof. Toll v. Lee, 4 Exch. 230. See ante, p. 255, as to stamp duty; and as to evidence of transfer, see Watson v. Spratley, 10 Exch. 222; 24 L. J., Ex. 53, cited ante, p. 286. Attendance of the defendant at a meeting in the character of a shareholder is evidence that he is one. Harrison v. Heathorn, 6 M. & Gr. 81. Where the facts showed that the defendant became a shareholder on the terms that the directors should not proceed without a certain capital, and they proceeded (without the defendant's assent) before that capital was raised, the defendant was held not liable on their contract. Pitchford v. Davis, 5 M. & W. 2. But the non-performance of this condition by the directors will not prevent the liability of a shareholder from attaching, where he sanctions the contract either directly or by acquiescing in the working. Steigenberger v. Carr, ante, p. 502.

Delivery to members of an inchoate company.] A joint-stock company is in the nature of a partnership; but the constitution of such companies generally distinguishes them from ordinary partnerships. When incorporated, the direct liability of individual members ceases. When inchoate, or not incorporated, the liability of a member depends on his being actually or constructively a party to the contract on which the plaintiff sues. In such cases the questions to be considered are :-Was the defendant directly a party to the contract? Was he a member of the body which contracted? Did he hold himself out as a partner by acting, or permitting others to act, in such a way as reasonably to induce the plaintiff to believe that he was a partner, and responsible as such? Had he legally withdrawn from the concern at the time of the contract? See Wood v. Argyle, Dk. of, 6 M. & Gr. 928; Lake v. Id., 6 Q. B. 477; Fox v. Clifton, 6 Bing. 792 (cited post, p. 504); Bright v. Hutton, 3 H. L. C. 341. The question that most frequently presents itself, is the liability of persons who have become subscribers to a company projected, but not finally established.

When the defendants consented to be directors of a water company and attended meetings, and were privy to an order given to the plaintiff (an engineer), though not actually present when the order was given, they were held liable, notwithstanding the subsequent failure of the project. Doubleday v. Muskett, 7 Bing. 110. See Collingwood v. Berkeley, 15 C. B., N. S. 145. But the mere consent of the defendant to become a member of the provisional committee of an intended company, and the insertion, with his authority, of his name in a prospectus accordingly, will not per se, and without further privity, make him liable on orders given by other members of the committee, or by the secretary, or the solicitor of the company. Reynell v. Lewis, 15 M. & W. 517; Barker v. Stead, 3 C. B. 946; Cooke v. Tonkin, 9 Q. B. 936; Bailey v. Macaulay, 13 Q. B. 815; Burbidge v. Morris, 3 H. & C. 664; 34 L. J., Ex. 131. The facts of the case may, however, warrant a judge in leaving them to the jury, as evidence that the defendant had authorized the contract to be made, either by his co-provisional committeemen, or by the managers of the concern, i.e. by the managing committee, if any, or the majority of them, or by the solicitor or other officer of the company; and the terms of the printed prospectus, if circulated with the defendant's privity and consent, and known, or presumably known, to the plaintiff, may be sufficient to justify such inference. Semb. per cur., in Reynell v. Lewis, supra; Maddick v. Marshall, 16 C. B., N. S. 387; 17 C. B., N. S. 829, Ex. Ch.; Riley v. Packington, L. R., 2 C. P. 536; and see

Bailey v. Macaulay, ante, p. 503. But a managing committee, appointed by the provisional committee, are not therefore agents of the latter for the purpose of pledging their credit by contracts. Williams v. Pigott, 2 Exch. 201. Where the defendant, as one of an acting committee, assented to the contract with the plaintiff, it was held a proper question for the jury whether the contract was on the personal liability of the defendant, either alone or as a committeeman, or on the sole credit of the funds. If on the credit of the funds, the contract becomes absolute on receipt of funds, and may be enforced. Higgins v. Hopkins, 3 Exch. 163. A minute in the books of an incorporated railway company appointing the plaintiff their engineer, not authenticated by any signature, or by any proof aliunde that a board meeting was held on the day, or that the defendant, a provisional committeeman, had sanctioned the resolution, is not per se evidence to fix the defendant; nor is a letter of the secretary to the plaintiff, stating the minute, admissible against the defendant without some proof of his authority to write it. Rennie v. Wynn, 4 Exch. 691.

Where the defendants, as agents on behalf of a proposed company, entered into a written contract with the plaintiff for the supply of goods to the company, which was not then constituted, it was held that, as the defendants had no existing principal, they were personally liable, and that a subsequent ratification by the company, when formed, could not relieve them from this responsibility, as the company was a stranger to the contract. Kelner v. Baxter, L. R., 2 C. P. 174. See also Scott v. Ebury, Ld., Id. 255; Hopcroft v. Parker, 16 L. T., N. S. 561, E. T. 1867, C. P.; Melhado v. Porto Alegre Ry. Co., L. R., 9 C. P., 505, and other cases, cited post, p. 523. Part III., Actions by and against Companies.

A person who applies for shares. in a joint-stock company, and pays a deposit on them, but has not otherwise interfered in the concern, is not therefore liable on contracts made by a board of directors, who have taken upon themselves to act before the necessary capital has been raised, agreeably to the prospectus, and after the shares have been declared forfeited by reason of non-payment of subsequent calls. Fox v. Clifton, 6 Bing. 776. See Howbeach Coal Co. v. Teague, 5 H. & N. 151; 29 L. J., Ex. 137, cited post, under Actions by companies, Part III., and Ornamental Woodwork Co. v. Brown, 2 H. & C. 63; 32 L. J., Ex. 190.

Some of the cases belonging to this head have already been mentioned under the last head of Delivery to partner (ante, p. 498, et seq.), such companies having formerly been treated as partnerships, and so called. In Reynell v. Lewis, ante, p. 503, it is denied that associations of this kind (at least, so long as they are in fieri) are partnerships at all.

As to actions against incorporated or registered companies, vide post, Part III., Actions by and against companies.

Delivery to wife.] Where a husband gives his wife express authority to pledge his credit, he is liable for the price of goods delivered on such credit, as in the case of any other agent; as to which, vide ante, p. 495, et seq. Under the present head is considered the authority of the wife to pledge her husband's credit, to be implied from the mutual relation of the parties, in the absence of such express authority. Where a husband is living in the same house with his wife, he is liable for any goods which he permits her to receive there. If they are not cohabiting, then the husband is in general only liable for such necessaries as, from his situation in life, it is his duty to supply to her. Waithman v. Wakefield, 1 Camp. 121; Atkins v. Curwood, 7 C. & P. 756. The question of the husband's liability must, therefore, be considered separately in the cases where his wife is, and is not living with him, and the latter cases must be further distinguished with

reference to the cause of the wife's separation from her husband. These questions are fully discussed, and the cases thereon collected, in the notes to Manby v. Scott, and other cases in 2 Smith's L. Cases.

Where husband and wife live together, and necessaries are delivered to the wife by her order, a jury may presume the husband's assent. Bac. Abr. Baron and Feme (H.); Freem. 2nd ed., 249, n. As, however, the liability of the husband turns on the question of the wife's power as his agent, the plaintiff, who relies on this presumption of agency, arising from cohabitation, must show that the goods he delivered to the wife were necessaries. Phillipson v. Hayter, L. R., 6 C. P. 38. The question is one of authority for the jury, and not simply whether the articles supplied were necessaries or not. Atkins v. Curwood, ante, p. 504; Reid v. Teakle, 13 C. B. 627; 22 L. J., C. P. 161; Jolly v. Rees, 15 C. B., N. S. 628; 33 L. J., C. P. 177; Debenham v. Mellon, 5 Q. B. D. 394, C. A.; 6 Ap. Ca. 24, D. P. And the husband

may rebut the presumption of agency, by showing that he had forbidden his his wife to pledge his credit, although the plaintiff had no notice of the prohibition. Jolly v. Rees and Debenham v. Mellon, supra. The presumption of agency may also be rebutted, by proof that the credit was given to the wife; Bentley v. Griffin, 5 Taunt. 356; Metcalfe v. Shaw, 3 Camp. 22; or by proof of any other circumstances negativing the husband's assent, as that the goods supplied are beyond the rank and station the husband maintains. Montague v. Benedict, 3 B. & C. 631. So in an action for the price of dresses delivered to his wife, the husband may show that his wife was already supplied with sufficient articles of dress, although the plaintiff did not know she was so supplied. Reneaux v. Teakle, 8 Exch. 680; 22 L. J., Ex. 241. Where the order is plainly an extravagant one, that fact may be considered by the jury as tending to rebut the presumed agency. Lane v. Ironmonger, 13 M. & W. 368. Where a wife carried on business on her own account during the imprisonment of her husband, and, after his return, articles were furnished in the same business with his knowledge, he was held liable for these articles, though the invoices and receipts were made out in the wife's name. Petty v. Anderson, 3 Bing. 170.

As to the evidence necessary to connect the defendant with the woman to whom the goods were delivered, vide post, pp. 507, 508.

Where a wife is living separate it lies on the plaintiff to show that she does so under circumstances which imply an authority to pledge her husband's credit. Johnston v. Sumner, 3 H. & N. 261; 27 L. J., Ex. 341. If the wife leave her husband without his consent, there is no implied authority to bind him. If with his assent, there is no necessary implication of authority: but it may be implied, either by her destitution of adequate support aliunde, or inability to support herself. Thus, in the case of labouring people, both equally able to maintain themselves, an authority to bind the husband is not to be implied in the case of mere non-cohabitation. In those cases in which the husband would ordinarily support the wife, and she has no resources of her own, and he do not make her an adequate allowance, an authority to the wife to pledge her husband's credit for necessaries may be implied. S. C. per cur., explaining Hodgkinson v. Fletcher, 4 Camp. 70. "And as in all cases, the creditor is to be considered as standing in the wife's place, it imports him, when the wife lives apart from her husband, to make strict inquiries as to the terms of the separation, for in such cases he must trust her at his peril." Ozard v. Darnford, 1 Selw. N. P., 13th ed. 229. Where the husband and wife had lived separate for many years, and the wife had adequate resources of her own, of which the plaintiff had notice, it was held that he could not sue the husband. Liddlow v. Wilmot, 2 Stark. 88; see Thompson v. Hervey, 4 Burr. 2177. So, even without a knowledge of her being provided for, the creditor, if he gives credit to her, and she is, in

fact, adequately provided for aliunde, cannot sue the husband. Clifford v. Laton, M. & M. 101. And, generally, it is now settled that if the wife is living apart from her husband, and he, in fact, allows her a sufficient maintenance, he is not bound by her contracts; and it is immaterial whether the tradespeople had notice of that allowance or not. Mizen v. Pick, 3 M. & W. 481; in which case, at p. 483, Alderson, B., says, "I do not see how notice to the tradesman can be material. The questions in all these cases is one of authority. If a wife, living separate from her husband, is supplied by him with sufficient funds to support herself, with everything proper for her maintenance and support, then she is not his agent to pledge his credit, and he is not liable." This rule applies equally where the husband is insane, and he therefore lives apart from his wife in a lunatic asylum. Richardson v. Du Bois, L. R., 5 Q. B. 51. And a wife, living apart from her husband with his consent, on the terms that she shall accept a certain allowance, which is paid, has no authority to pledge his credit, though the allowance is inadequate. Eastland v. Burchell, 3 Q. B. D. 432. Biffin v. Bignell, 7 Ĥ. & N. 877; 31 L. J., Ex. 189.

See also

Where the separation is compulsory, and is the act of her husband, he is liable, although an implied authority, in the strict sense of the word, can hardly be the ground of obligation. Thus where a wife leaves her husband under a reasonable apprehension of personal violence, he continues liable for necessaries furnished to her; Houliston v. Smyth, 3 Bing. 127; and if living apart she obtain the custody of her infant child against her husband's will, by an order under 2 & 3 Vict. c. 54 (now replaced by 36 & 37 Vict. c. 12), the reasonable expenses of providing for it have been held to be part of the necessary expenses of the wife for which she has authority to pledge her husband's credit. Bazeley v. Forder, L. R., 3 Q. B. 559; diss. Cockburn, C. J. So, if he causelessly turns away his wife or shuts his door against her. Lungworthy v. Hockmore, cited 1 Ld. Raym. 444; see also Rawlyns v. Vandyke, 3 Esp. 251. In such cases, even a notice by him that he will not be answerable for her debts, will not relieve him from liability. Boulton v. Prentice, 1 Selw. N. P., 13th ed. 233 ; S. C., 2 Str. 1214; Harris v. Morris, 4 Esp. 42; Harrison v. Grady, 13 L. T., N. S. 369, M. T. 1865, C. P. A husband ill-treated his wife, and was indicted by her for the assault; a person who advanced money, for the purposes of the prosecution, to the attorney, without which he could not have gone on, could not recover it from the husband as money supplied to procure her necessaries. Grindell v. Godmond, 5 Ad. & E. 755. But the husband is liable to the solicitor employed by the wife for the expenses of articles of the peace exhibited by the wife against him, although she may have a separate maintenance. Turner v. Rookes, 10 Ad. & E. 47. So for legal expenses incidental to a suit brought by her for restitution of conjugal rights, and for obtaining legal advice as to her position. Wilson v. Ford, L. R., 3 Ex. 63. So for the wife's extra costs of obtaining a divorce. Ottaway v. Hamilton, 3 C. P. D. 393, C. A. It lies upon the plaintiff to show, that under the circumstances of the separation, or from the conduct of the husband, the wife had authority to bind him, and this even in an action for necessaries. Mainwaring v. Leslie, M. & M. 18; 2 C. & P. 507; Clifford v. Laton, supra. And where the plaintiff caused a letter to be sent to the defendant, reminding him of his liability for necessaries supplied to his wife, that she was getting into debt, and stating the wish of his wife to return to him, which the defendant received, but returned no answer, it was held some evidence, though slight, that the defendant had authorised his wife to pledge his credit for necessaries. Edwards v. Towels, 5 M. & Gr. 624. If the husband is a lunatic, and incapable of making contracts, then he is bound by the orders for necessaries given by his wife; for this is analogous to the case of an omission of

the husband to supply necessaries, though the omission is involuntary. Read v. Legard, 6 Exch. 636; 20 L. J., Ex. 309.

A husband was liable for necessaries provided for his wife, pending a suit in the ecclesiastical court, and before alimony decreed, although a decree, afterwards made, directed the alimony to be paid from a date before the time when the necessaries were provided. Keegan v. Smith, 5 B. & C. 375. A decree for alimony was, however, a bar to the husband's liability, if the alimony were duly paid, even though the decree had become inoperative through an appeal having been presented, it being shown that it might have been renewed on application to the court of appeal. Willson v. Smyth, 1 B. & Ad. 801. But after a divorce à mensâ et thoro for adultery in the husband, and a decree of alimony, the husband has been held liable for necessaries supplied to the wife, if he omits to pay the alimony. Hunt v. De Blaquiere, 5 Bing. 550. After a decree of nullity, the liability of the husband for the debts of his pseudo-wife does not continue. Anstey v. Manners, Gow, 10. And after sentence of judicial separation (20 & 21 Vict. c. 85, s. 26), the wife is, whilst so separated, to be considered a feme sole, for the purposes of contract and wrongs, and suits, and her husband is not liable in respect of her contracts or wrongs, or of the costs of proceedings by or against her in a civil suit but if he shall not have duly paid the alimony (if any) decreed, he shall be liable for necessaries supplied for her use. And a wife, deserted by her husband, and obtaining protection under sect. 21, is, during the protection and desertion, deemed to be in like position, with regard to property and contracts and suits, as if she had obtained a decree of judicial separation. And see also 21 & 22 Vict. c. 108, s. 8. See on these sections, Ewart v. Chubb, L. R., 20 Eq. 454. So an order given to a wife under the Matrimonial Causes Act, 1878 (41 & 42 Vict. c. 19), s. 4, has the same effect as a judicial separation. Before these acts it had been considered that an express promise made by the husband to pay a debt contracted by the wife, after a separation and adequate allowance, was a ratification, and binding upon him. Hornbuckle v. Hornbury, 2 Stark, 177; accord. Harrison v. Hall, 1 M. & Rob. 185. But the principle of this ruling is open to question; see a note to the last-mentioned case.

Where the wife has separated from her husband, without cause and without his consent, the husband is not liable even for necessaries supplied to her. Child v. Hardyman, 2 Stra. 875; Hindley v. Westmeath, Ms. of, 6 B. & C. 213, per Bayley, J. See also Johnston v. Sumner, 3 H. & N. 261; 27 L. J., Ex. 341, cited ante, p. 505. So à fortiori, where the wife elopes from her husband and lives in adultery. Morris v. Martin, 1 Stra. 647. And, in such case, the wife is a competent witness to prove the adultery; Cooper v. Lloyd, 6 C. B., N. S. 519; but the adultery cannot be proved by giving evidence of the proceedings for divorce, in which the jury found that the wife had been guilty of adultery, unless a decree has been pronounced altering the status of the parties. Needham v Bremner, L. R., I1 C. P. 583. Where the husband turns the wife out of doors on account of her having committed adultery under his roof, he is not liable for necessaries furnished to her afterwards. Ham v. Toovey, 1 Selw. N. P. 13th ed. 228. But if, after an adulterous elopement, the husband takes her back, he is liable for necessaries subsequently supplied. Harris v. Morris, 4 Esp. 41.

The plaintiff must prove, either that the defendant and the woman to whom the goods were delivered are married, of which it is sufficient prima facie evidence that they are living together; Car v. King, 12 Mod. 372; or that she and the defendant cohabited, and that she passed as his wife with his assent, assumed his name, and lived in his house as part of his family; Watson v. Threlkeld, 2 Esp. 637; Robinson v. Nahon, 1 Camp. 245; for the presumed authority arising from cohabitation in the character and position