the case was, in fact, which of two parties, the widow or the butcher, should suffer the loss, both having acted in good faith. Why should not the determination of this point be governed by analogy to the maxim in æquali jure melior est conditio possidentis vel defendentis ? The decision of the Court, in absolving the widow, seems just, and agreeable to law. But suppose the butcher to sue, not the widow, but the husband's representatives. His action would fail; as appears by the decision in Blades v. Free (g), where a man who had for some years cohabited with a woman who passed as his wife, went abroad, leaving her and her family at his residence in this country. While in foreign parts the man died. Two things were holden, and both of them important. In the first place, the Court were clear that the woman might have the same authority to bind the deceased for necessaries as if she had been his wife. But, secondly, they resolved that, even if she had been his wife, his executor was not bound to pay for any goods supplied to her after his death, although before information of his death had been received.

This ruling appears to have proceeded on general and somewhat speculative reasoning. It is law, because the Court has so decided. But whether it be justice, or whether it would be followed, may be doubted. The case, however, supports what I have said, namely, that the tradesman under such circumstances must bear the loss. As in a question between him and the widow, this result appears just; but as between him and the husband's representative, there is more difficulty.

Let us now suppose the case of a widow's express promise to pay, made after her husband's death, where the

(g) 9 B. & Cr. 167; 4 Man. & Ry. 282.

K

WIFE'S IMMU

NITIES.

Neither is the sentative liable.

husband's repre

Promise to pay widow after her

made by the

husband's death.

debt had been contracted by her during the coverture, and where, consequently, it was binding, not upon herself, but upon her husband. The promise in such a case would be but a nudum pactum, and therefore would be void for want of consideration (h).

But it has been held to be a sufficient consideration to support a widow's promissory note that it was given by her, out of respect for the memory of her late husband, to secure a debt due by him (¿).

It is only when the husband is civiliter mortuus (k), as in the known cases of abjuration, exile, transportation, and the like, that the wife can contract and bind herself as if she were a femme sole. Her husband is then regarded as dead, and she as his widow.

In Kay v. Duchess of Pienne (1), Lord Ellenborough, differing from Lord Kenyon, expressed an opinion that a wife might be sued as a femme sole, if the husband were an alien. But Mr. Baron Parke (m) has suggested that "there must have been some misapprehension of what Lord Ellenborough said in that case, or his Lordship must have been in error; because he refers to the case of Derry v. Duchess of Mazarine (n), in support of his proposition; whereas that was the case of an alien enemy, who could not be in England lawfully, and therefore analogous to the case of a person transported."

It is a fraud in a married woman to contract on her own credit by representing herself as sole. The court formerly would not, on summary application, discharge a femme

(h) Meyer v. Haworth, 8 Ad. & El. 467.

(i) Ridout v. Bristow, 1 C. & J. 231; Tyr. 84. See also Nelson v. Searle, Jurist, 20th April, 1839.

(k) Per Baron Parke in Barden v. Keverberg, 2 Mee. & Wel. 64;

Hatchett v. Baddely, 2 Black. Rep.

1081.

(1) 3 Campb. 123.

(m) Barden v. Keverberg, 2 Mee. & Wel. 65.

(n) 1 Lord Ray. 147.

NITIES.

couverte arrested on mesne process under such circum- WIFE'S IMMUstances; but would leave her to plead her coverture (o). In so far, therefore, the Court punished the wife in her own person; and properly so, for the imposition was practised by her as an individual, and not as agent for her husband. Still, I apprehend, the husband would be liable to make good the consequences, otherwise the party injured by the wife's fraud would, during the coverture, be remediless (p).

SECTION II.

WIFE'S AUTHORITY TO BIND HER HUSBAND WHEN
LIVING WITH HIM.

NECESSARIES

WHEN HUSBAND
AND WIFE LIVE
TOGETHER.

when presumed,

THE wife may bind her husband either by the express Wife's authority or by the implied authority which he confers upon her. Cases of express authority are plain. But cases of implied authority often give rise to questions which perplex courts of justice; and it is not an easy, if it be a practicable, task to reconcile their decisions. The effort, however, must be made.

When a wife is living with her husband, and when in the ordinary administration of their household, she gives orders for commodities which primâ facie are proper in themselves, and not extravagant, it will be presumed that

(0) Waters v. Smith, 6 Term. Rep. 452.

(p) Head v. Briscoe and wife, 5

Car. & Pay. 484, where C. J. Tindal
so ruled in the case of a libel by the
wife.

NECESSARIES

WHEN HUSBAND

TOGETHER.

she has the authority of her husband, who will conse

AND WIFE LIVE quently be bound (a). Accordingly, if an action be brought against him for the price of goods furnished under such circumstances, it lies on him to show that he is not responsible (b). Thus in Clifford v. Laton (c), Lord Tenterden lays it down, that "if goods are furnished to a married woman who is living with her husband, it must be taken primâ facie that those goods are supplied to her by his authority; and it lies on the husband to show that the goods were supplied under such circumstances as to make him not liable to pay for them." It would seem that he may show this by proving that his household was already well supplied, and that, consequently, his wife's orders were unwarranted (d).

But if he knew of the extra commodities supplied upon his wife's order, if his family had had the benefit of them, and if, in fact, he himself, in his own person, had helped to appropriate or consume them, none of the decisions or dicta say that he would not be liable. On the contrary, I collect that he would be bound in such a case, although he were to prove that his establishment was, by his own order, sufficiently and even amply supplied with all necessary articles. To hold otherwise would be to contradict a maxim recommended, no less by its justness than its antiquity, nemo debet locupletari alienâ jacturâ (e).

(a) Emmett v. Norton, 8 Car. & Pay. 506; Freestone v. Butcher, 9 Car. & Pay. 643.

(b) Clifford v. Laton, 3 Car. & Pay. 15.

(c) 3 Car. & Pay. 16.

(d) Seaton v. Benedict, 5 Bing. 28. (e) If one were at liberty to speak without book, it might be said that in many instances the proper inquiry would be, not simply whether the husband had sanctioned, or was

conusant of the wife's order, but also whether, in point of fact, he had by the furnishings been made locupletior, as the civilians express it. See 2 Rop. 112, where he says in a marginal note, "If the articles bought be not necessaries, yet if they come to the husband's use, he will be liable." This is justice and good sense at all events; but he cites no decision or dictum. In his text at the same place he says the husband

A husband who supplies his wife with necessaries suitable to her position is not liable for debts contracted by her without his previous authority or subsequent sanction (ƒ). A recent case (g) before the Court of Exchequer in Banco, gives us the law in its maturest form on the subject of the wife's power to bind her husband for articles supplied upon her order. The comments upon prior authorities, and the care which marks the judgment, render the case very deserving of attention.

At the trial, before Pollock, C.B., it appeared that the action was brought to recover the sum of 5,2877., for various articles of millinery, viz., bonnets, feathers, lace, and ribbons, supplied by the plaintiff to the defendant's wife, during part of the year 1843. It further appeared that the defendant's wife had a separate fortune, though she and her husband were living together; and that the plaintiff having been induced to make inquiry, was told he had 1,100l. per annum. There was no evidence of any express authority given by the husband to his wife to order the articles in question. Under these circumstances, it was contended for the defendant, that, as the articles ordered by the defendant's wife were excessive in amount, and as there was no evidence of any express authority given by him, the jury ought not to infer that the wife had any implied authority from her husband to order the goods; and the direction of Lord Abinger, C.B., in the case of Freestone v. Butcher (h), was cited to the learned judge, who told the jury, that he approved of and adopted it; and they thereupon found a verdict for the defendant. Afterwards, the plaintiff's counsel moved for a new trial, on the ground of misdirection, contending that the direction of the learned judge had proceeded upon the doctrine laid down by Lord Abinger, C.B., in Freestone v. Butcher, which, it was submitted, was not correct in law, and could not be supported. The learned counsel, further commenting on Freestone v. Butcher, proceeded as follows: "his Lordship there says, the general rule is, that a wife cannot bind her husband by

will be liable, when "he allows the wife to retain and enjoy" the articles. For this, too, which seems most reasonable, I see no authority

(f) Seaton v. Benedict, 5 Bing. 28. (g) Lane v. Ironmonger, 13 Mee. & Wel. 368.

(h) 9 Car. & P. 647.