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From a decision overruling a demurrer to the com- benefits enjoyed on account of improved streets, peace plaint defendant appealed.

and order enforced by police regulations, and the like.

It cannot be claimed that the agents or officers of the E. S. Bailey, and Wright, Gatch & Wright, for appel-city employed by the municipal government to supply lant.

water, improve the streets, or maintain good order, J. S. Darling and A. R. Cotton, for appellee.

are liable to a citizen for loss or damages sustained by

reason of the failure to perform their duties and obliBECK, J. 1. The petition alleges that the defendant

gations in this respect. They are employed by the city entered into a contract with the city of Clinton to

and responsible alone to the city. The people must supply water to be used by the city for the purpose of

trust to the municipal government to enforce the disextinguishing fires. The contract is embodied in an

charge of duties and obligations by the officers and ordinance passed by the city authorizing defendant to

agents of that government. They cannot hold such establish its works for supplying water to the city, and

officers and agents liable upon the contracts between providing for compensation to be paid defendant by

them and the city. These views and conclusions are the city for water furnished for public purposes, in

supported by the following authorities: Atkinson v. cluding the extinguishing of fires. The terms and

Newcastle & Gateshead Water Co., L. R., 2 Exch. Dir. conditions of this contract need not be recited. It is

441; Nickerson v. Bridgeport Hydraulic Co., 46 Conu. sufficient to state that the parties thereto were the city | 24; Vroomun v. Turner, 69 N. Y. 280; Wharton on and the defendant, and the plaintiff in this case in no

Negligence, $s 438, 439, 40; Shearman & Redfield on sense was a party to the contract. The power of the Negligence, 854. The cases cited by counsel for plaintcity to pass the ordinance and enter into the contract

ilf, we think, are not in conflict with the view we have is not questioned. The petition alleges that a fire

above expressed. occurred in certain store-rooms owned by plaintiff in 3. Counsel for defendant base an argument upon the the city, and they were entirely consumed, for the rea

position that the city itself would not be liable to deson that the necessary supply of water was not fur

fendant in case it owned and operated the water-works. nished by defendant, and a sufficient pressure of water

They agree that the defendant, therefore, would not was not found at the hydrants contiguous to the build

be liable to plaintiff. We find it uunecessary to conings, which was caused by defective machinery and the

sider the argument, or the premise upon which it is negligence of defendant's servants, all of which was based. We are content to rest our conclusion upon the in violation of defendant's contract under said ordi- grounds and arguments we bave attempted to present. nance of the city. A demurrer to the petition was

The Circuit Court erred in overruling the demurrer overruled.

to plaintiff's petition. Its judgment is, therefore, 2. The on question presented in the case is this

reversed. one: Is the defendant liable to plaintiff upon the contract embodied in the ordinance? The petition does

MORTGAGE OF CEMETERY LOTS INVALID. not allege or show any privity of contract between plaintiff and defendant. The plaintiff is a stranger, and the mere fact that she may find benefits therefrom:

NEW YORK SUPREME COURT - SPECIAL TERM, JUNE, by the protection of her property, in common with all

1880. other persons whose property is similarly situated, does not make her a party to the contract, or create

THOMPSON V. HICKEY. a privity between her and defendant. It is a rule of

Plaintiff conveyed to H., by deed absolute in form, a lot in law, familiar to the profession, that a privity of con- a cemetery in which plaintiff had buried his children. tract must exist between the parties to an action upon This deed was intended as a mortgage security for a a contract. One whom the law regards as a stranger loan of money. H. conveyed tbe lot to P., who conto the contract cannot maintain an action thereon. veyed it to C. for a valuable consideration, O. knowing The rule is founded upon the plainest reasons.


that interments had been made in the lot. Held, that contracting parties control all interests, and are enti

the deeds were void and equity would restrain a re

moval of the bodies interred. tled to all rights secured by the contract. If mere strangers may enforce the contract by actions, on the


CTION by Andrew J. Thompson against William ground of benefits flowing therefrom to them, there Hickey and others, to have declared void a conwould be no certain limit to the number and character veyance of a lot in a cemetery, and to restrain the of actions which would be brought thereon. Excep-removal of the bodies of plaintiff's children buried tions to this rule exist, which must not be regarded as therein. Sufficient facts appear in the opinion. abrogating the rule itself. Thus, if one, under a con

John T. McGowan, for plaintiff. tract, received goods or property to which another, not a party to the contract, is entitled, he may main

Charles Bradsharo, for defendants. tain an action therefor. So, the sole beneficiary of a VAN VORST, J. The evidence clearly enough shows contract may maintain an action to recover property that the conveyance made by the plaintiff to the deor money to which he is entitled thereunder. In these fendant Hickey, of the burial plot, was intended as cases the law implies a promise on the part of the one security only for the repayment of the moneys loaned; holding the money or property to account therefor to and although it is absolute in form, it was a mortgage the beneficiary. Other exceptions to the rule, resting security only, which character it has not lost, and as upon similar principles, may exist. See National such it must be considered. Horn v. Ketellas, 46 N. Bank v. Grand Lodge, 98 U. S. 123.

Y. 005. The case before us is not an exception to the rule we The right of the plaintiff as mortgagor could not be have stated. The city, in exercise of its lawful author- divested by the private sale made by Hickey to Fariity to protect the property of the people, may cause ham, and by the latter to Clark. Lawrence v. Farmwater to be supplied for extinguishing fires and for ers' Loan and Trust Co., 13 N. Y. 200. Neither Hickey other objects demanded by the wants of the people. nor his immediate grantee could give any better right In the exercise of this authority it contracts with de- or interest than he really took. Besides, Clark, when fendant to supply the water demanded for these pur- he was asked on the trial as to his knowledge of the poses. The plaintiff received benefits from the water original transaction between plaintiff and Hickey, and thus supplied in common with all the people of the as to its being a loan of money, replied, “In writing I city. These benefits she received just as she does never heard of it.” A fair implication arises from the other benefits from the municipal government, as the qualification, that he had otherwise heard of it, and

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that would be sufficient to put him upon inquiry. versed at the General Term. Lautz v. Buckingham, 4
Hickey conveyed to Farnham for the nominal con- Lans. 484. But it is to be borne in mind that in that
sideration of one dollar, and on the same day Farnham case no interment had been made in the lot at the time
conveyed to Clark, for the consideration of two hun- the mortgage was given, and it may be that it might
dred and twenty-five dollars, but Clark held back part not be considered an offense, either against good
of the price until the bodies of the plaintiff's children morals, public policy, or against the spirit of the stat-
should be removed. The whole transaction between ute, to convey or mortgage a cemetery lot before an
Hickey and the other defendants wears a suspicious interment had been actually made therein. For such
appearance, which the evidence does not remove, and a sale or conveyance satisfactory reasons might possibly
suggests a plan to deprive the plaintiff of the burial exist. A man might desire to change his lot for one
plot unjustly and without notice. But I apprehend | larger or more eligible.
that there are sufficient reasons in law and equity to I do not regard the act of April 5, 1850, as affecting
prevent the consummation of the wrong.

the question we are now considering. It declares The Greenwood Cemetery Association was incor- under what circumstances a lot is inalienable. It does porated for the purpose of establishing a burial ground, not authorize a mortgage or a sale thereunder by imand for this purpose it was authorized to acquire a plication even. But that it is an offense against good tract of land within the limits of the city of Brooklyn. morals to mortgage a small isolated plot of ground in The corporation was authorized to sell the grounds in a cemetery, dedicated exclusively, under the sanction lots or plots, to be used exclusively as a place of burial of the law, as a sanctuary for the dead of one's family, of the dead (see the original act of April 18, 1839, and and already consecrated by the ashes of one's kindred, the several acts amending same). There does not I am sure cannot be well questioned. Such a transacappear in the charter of this corporation, in terms, any tion is clearly a breach of the policy of the statute, is absolute restraint upon the power of voluntary aliena- contrary to its equity, and is within the evils it was tion of a cemetery lot by an owner. Yet I am per- designed to cure, and our moral nature protests against suaded that when a person has taken a conveyance of it. As a consequence of such a transaction, we have a burial lot, and has made interments therein of the here a stranger calling upon a father to disinter his dead of his family, it is in such condition that it cau- three children, who have been buried for a period of not be mortgaged to secure the payment of a debt or ten years in a cemetery lot, with a threat that if the the return of money borrowed. Such an act is pro- parent will not he himself will do it. And suppose he hibited by the equity and true spirit of the statute. carries his threat into execution, what then? SepulFor observe how careful the Legislature has been to ture must, in the end, be had, and that, it is believed, secure the sleep of the dead from disturbance. The the statute was intended to secure permanently, against cemetery itself is exempted from publio taxation, and disturbance from any such cause as is indicated by the the lots or plots of ground when conveyed are declared mortgage in question. to be exempt from assessment, and cannot be sold on The sentiments and feelings which people in a execution or be applied to the payment of debts under Christian State have for the dead the law regards and any insolvent law. And as no public road, street or respects, and however it may have been anterior to our avenue shall be laid out or opened over the land, the legislation on the subject of cemeteries, the dead themsame would seem to be absolutely secured against in- selves now have rights, which are committed to the vasion. A mortgage, equally with an execution upon living to protect, and in doing which they obtain a judgment, might in the end expose the lot for sale. security for the undisturbed rest of their own remains. And although the letter of the charter under considera- In any view which may be taken of this subject, I am tion is not so full, yet the Legislature has clearly ex- sure that the defendant should be restrained from inpressed its mind upon this precise subject in the pro- terfering with the children's graves. If the conveyvisions contained in chapter 133 of the Laws of 1847, ance executed by the plaintiff to Hickey, although it entitled an act authorizing the incorporation of “rural be in form absolute, is supposed to confer any present cemeteries.” By section 11 of that act it is provided right, it must yield to the easement of the bodies that when plots or lots shall be transferred to indi- | already buried there, which should in no event be disvidual holders, and after there shall have been an in- turbed. Moreland v. Richardson, 22 Beav. 596; S. terment in a lot or plot so transferred to individual C., 24 id. 33; First Presbyterian Church v. Second Presowners, such lot or plot, from the time of such inter- byterian Church, 2 Brewst. (Pemu.) 372. ment, shall be forever thereafter inalienable, and shall, But as has been already decided, the conveyance to upon the death of the holder or proprietor thereof, Hickey was a mortgage security only, and until the descend to the heirs-at-law of such holder or proprie- plaintiff's rights have been judicially ended through a tor, and to their heirs-at-law forever; and chapter 310 proceeding in court, his complete possession and conof the Laws of 1879 declares that it shall not be lawful trol of the lot cannot be interfered with, and for that to mortgage land used for cemetery purposes or to reason also the threatened acts should be restrained. apply it in payment of debts.

And a suit in equity is a proper proceeding to secure Legislation upon this subject has been in accord with such restraint. the sentiments of humanity, and with the spirit of our In Kurtz v. Beatty and another, 2 Pet. 566, 581, Judge civilization, and has shown a considerate regard for the Story says: “It is a case where no action at law could sanctity of the resting places of the dead. By the in- afford an adequate and complete remedy. The remedy corporation of cemeteries, and their preservation as must be sought, if at all, in the protecting power of a such, it has secured an immunity from disturbance for

Court of Chancery, operating, by its injunction, to the dead, which had failed to be obtained through preserve the repose of the ashes of the dead and the burials in church yards, which were liable to be unset- religious sensibility of the living." tled by the sale of church property.

Taking up dead bodies from the place where they When the case of Lautz v. Buckingham was before have been interred, without authority, is a misdeJustice Brady at Special Term, he distinctly pro- meanor at common law. Stephen's Com., vol. 4, 371; nounced against the legality of a mortgage executed Reg. v. Twiss, 10 B. & S. 298; see, also, Paper of Mr. R. upon a cemetery lot by the proprietor thereof. He

Guernsey, read before Medico-Legal Society, Feb. 4, says, “regarding it in the light of a mortgage security, 1880, ou the “ Law of Burial.” I think it is not to be sustained. It is against good But in addition to relief by injunction, I am of morals, and therefore against the policy of the law, to opinion that it should be adjudged, for the reasons encourage such instruments." 11 Abb. (N. S.) 64. It above stated, that the transfer made by the plaintiff to is true that the judgment of the Special Term was re- Hickey of the cemetery lot, as security for a loan of money, was and is void, and that the subsequent transfers to the other defendants are also void, and that they should severally be delivered up to be cancelled, and that the plaintiff's name should be restored to the records of Greenwood Cemetery as the owner of the lot.

The loan of money made by Hickey to the plaintiff, it is urged on behalf of the plaintiff, was usurious and void, but the relief granted is not put upon that ground. And if Hickey or his assigns conclude that they have any legal claim for the recovery of the money loaned, they are at liberty to institute and prosecute an action for its recovery, to which the plaintiff, notwithstanding this determination, may interpose any defense he may have.

drainage provided by the city would not carry the water off, then their verdict should be for the defendant."

The appellant contends that he was entitled to the instruction as offered by him, and that the court erred in granting it with the qualification.

Assuming then that the snow, thrown on the street by the appellant in clearing off its track, obstructed the natural flow of water from the street; and that in consequence thereof the appellant's house was injured, the broad question is presented, whether he is entitled to recover damages irrespective of the question of negligence on the part of the railway company?

As a general rule, it is conceded that every one must so use his own property and exercise the rights incident thereto, in such a manner as not to injure the property of another. And it is equally true, that the mere lawfulness of the act is not in itself a test in all cases of exemption from liability for injuries resulting therefrom to the property of others. But yet there are certain rights incident to the dominion and ownership of property, in the exercise and enjoyment of which a person will not be liable for damages, a)though injury may be occasioned thereby to the property of another.

The books are full of cases of this kind, and it is unnecessary to cite them here. The question then is, what is the true test in actions of this kind, by which the exemption from liability is to be determined ? We think it may be safely said, both on principle and on authority, that the true test is, whether in the act





A street railway company having a franchise to operate its

road on a city street has a right to remove the snow
from its track and place it upon another part of the
street, and if it exercises ordinary care and prudence in
doing these acts it will not be held liable for injury
done to adjoining property by reason of such snow ob-
structing the flow of water in the street.

the plaintiff. Sufficient facts appear in the opin- reasonable, usual and proper manner, taking care to ion.

avoid unnecessary injury to others.

This is the rule laid down by the House of Lords, in J. T. Mason, for appellant.

the recent case of Rylands v. Fletcher, L. R., 3 Eng. Arthur W. Machen, for respondent.

and Ir. App. 330. There the defendant built a reserRobinson, J. The appellant is the owner of a house voir for the purpose of keeping and storing water, and in the city of Baltimore, on Hoffman street, near its

the weight of the water broke through some old disintersection with Gay; and the appellee is the owner

used mining passages and works, and injured the mine of a horse railway, running along the bed of Gay

of the plaintiff. street, and across Hoffman.

The Court of Exchequer, Bramwell, B., dissenting, On the 6th January, 1877, there was a heavy fall of were of opinion that the plaintiff was not entitled to snow, and in clearing its track, it is alleged the appellee recover, but on appeal to the Exchequer Chamber, threw the snow off toward the curb, making a ridge or

this judgment was reversed, and on appeal to the bank on Gay street, and across the mouth of Hoff- House of Lords, the judgment of the Exchequer man, thereby obstructing the natural flow of water at Chamber was affirmed. the intersection of the two streets.

The Lord Chancellor said: “The defendants, treatOn the other hand, the appellee proved that the ing them as the owners or occupiers of the close in snow which had been pushed off the track by the

which the reservoir was constructed, might lawfully snow-plow lay between the track and the gutter, and

have used that close for any purpose for which it did not obstruct nor in any manner interfere with the might in the ordinary course of the enjoyment of land natural flow of water from Hoffman street.

be used; and if in what I may term the natural user of On the night of the day in question it rained very

that land, there had been any accumulation of water hard, and the appellant's house was flooded with water,

either on the surface of the ground, or under ground, and this suit is brought to recover damages for injuries and if by the operation of the laws of naiure that acthereby sustained.

cumulation of water had passed off into the close occuAt the trial below, the appellant asked the court to pied by the plaintiff, the plaintiff could not have instruct the jury: that if they should find the appellee complained that that result had taken place.” obstructed the natural flow of water from Hoffman

“On the other hand, if the defendants not stopping street, and that by reason of said obstruction the

at the natural use of their cluse had desired to use it house of the appellant was flooded with water, he was

for any purpose which I may terin a non-natural use, entitled to recover damages for the injuries thereby

for the purpose of introducing into the close that sustained.

which in its natural condition was not in or upon it, This instruction the court granted, subject, however,

for the purpose of introducing water either above or to the following modification:

below ground in quantities and in a manner not the “That if the jury should find the appellee exercised

result of any work or operation on or under the land, ordinary care in the management of its track on Gay and if in consequence of their doing so, or in consestreet, and removal of the snow therefrom, and clear- quence of any imperfection in the mode of their doing ing out the gutter extending along Gay street at the

so, the water came to escape and to pass off into the side of its track, and that the damage suffered by the

close of the plaintiff, then it appears to me, that which plaintiff was attributable either to the conformation

the defendants were doing, they were doing at their of the ground and situation of his premises, or to a

own peril." sturm of such extraordinary severity that the usual

The right of the plaintiffs to maintain their action

was based entirely upon the ground that the defendTo appear in 50 Maryland Reports.

auts had used their land in an unusual, or in the language of the Lord Chancellor in a “non-natural Debenham & Freebody, the plaintiffs, who were linenmanner, but the right to use it for any purpose for drapers, to the defendant's wife. The goods were supwhich it might, in the ordinary course of the enjoy- | plied to the wife whilst living with her husband, and ment of land be used, was distinctly asserted.

were admitted to be necessaries, in the sense that they Now in this case the appellee was entitled under its were suitable to the position in life of the parties. charter and the ordinances of the city of Baltimore to Shortly before the goods were ordered, the defendant the use of the bed of the street for the purposes of a forbade his wife to exceed her allowance or to buy horse railway, and if its track was obstructed by snow goods on his credit. Bowen, J., at the trial, told the it had beyond all question the right to remove it. And jury that, where a husband and wife were living amithe only question is whether in clearing its track and in cably together, the goods supplied being reasonable throwing the snow on the bed of the street adjoining goods, prima facie she would havo authority to pledge thereto it can be said that the appellee was, under the his credit; but if, in fact, it turns out that the husband circumstances, using the bed of the street in an un- has withdrawn such authority, then the prima facie usual or unreasonable manner. We think not. The presumption is rebutted; and further, that it was not removal of the snow from its track being necessary in necessary that the tradesman should know that the order to enable the company to use it for the public wife had been forbidden to pledge her husband's benefit and convenience, it was obliged either to throw credit, if she had been so forbidden in fact; and he it on the bed of the street or to haul it away, and no left to the jury the following question: “At the time one will pretend that it was under any obligation to do these goods were ordered, had Mr. Mellor withdrawn the latter. It had no right of course to throw the from his wife authority to bind his credit and forbidsnow in the gutter, and thereby obstruct the natural den her to do so ?" This question the jury answered flow of water from the street, because in so doing in the affirmative, and the learned judge thereupon the appellee would have been guilty of negligence. gave judgment for the defendant. Nor are we to be understood as deciding that the rail- The plaintiffs now appealed. way company had the right to bauk up the snow on Gay street so as to necessarily obstruct the natural Benjamin, Q. C., and A. L. Smith, for the appellants. flow of water. On the contrary, it was obliged to exer- The principle of the law is, that the marriage creates cise ordinary care and prudence, not only in remov- an agency in the wife to pledge the husband's credit ing the snow from its track, but also in throwing it on the for all necessaries for the house or family. The quesstreet. And this question was distinctly left to the tion is, whether it sufficient to rebut the presumpjury by the modification of the plaintif's prayer. tion for the husband merely to say to the wife, “I

Nor do we agree with the appellant that the evidence forbid you to pledge my credit.” A tradesman, if he was legally insufficient to prove either that the storm knows that a wife is living with her husband, may was one of unusual severity, or that the flooding of assume that she bas the authority that a wife in all the plaintiff's house was owing to the peculiar con- conditions of life ordinarily has to order food or formation of the ground.

clothes for her husband or herself. The husband may On the contrary, the appellant's own witness, Mar- go to the tradesman and give him notice that he (the tinet, says, “it was a dreadful night, slush and snow husband) will not be bound, and then he will not be. ankle deep-one of the worst nights he ever knew." But the revocation of the authority of an agent will

Then as to the peculiar conformation of the ground, not do, unless that revocation is made known to the the proof shows that the first story of the plaintiff's persons with whom the agent is dealing. [Thesiger, L. house is several feet below the level of the street, and J. - Is the husband liable where he makes the wife a there was evidence tending to show that it was liable sufficient allowance ?) Yes. Society is formed upon to be flooded from several directions, namely, through the basis that the wife is to deal with household affairs, Reaney's house on the west, and then from the rear of the husband with outdoor business, and it is for that the house by the water coming down the hill-side of reason that this presumption of law exists. It is to be south of Hoffman street, and lastly by the overflow of assumed that this wife had authority to pledge her the front sidewalk, caused by the choking up of the husband's credit; the question is, is the mere fact that Hoffman street gutter.

the husband told the wife that she had no longer The several instructions granted by the court pre- authority, no notice of that being given to the tradessented, we think, the law of the case fairly to the jury, man, sufficient to bind such tradesman? Jolly v. Rees, and the judgment below must therefore be affirmed. 15 C. B. (N. S.) 628; 33 L. J. 177, C. P.; 10 L. T. Rep. Judgment affirmed.

(N. S.) 298, will be relied upon by the other side. But Alvey, J., dissented.

there the tradesmen in the place knew that the hus

band's authority was withdrawn, because he himself PURCHASES BY WIFE ON HUSBAND'S

goes to the shops and orders the things for the house. CREDIT.

Then the wife writes to a tradesman in a distant place and he chooses to send the goods. That case is dis

tinguishable, therefore, from this. But no doubt Erle, ENGLISH COURT OF APPEAL, MARCH 24, 1880.

C. J., in giving the judgment of the majority of the

court, laid down principles which are opposed to the DEBENHAM V. MELLOR. (42 L. T. Rep., N. S., 577.)

contention of the appellant here. These principles, howThe presumption that a wife living with her husband is

ever, are not in accordance with the weight of authorauthorized to pledge his credit for articles suitable to ity. In Etherington v. Parrott, 1 Salk. 118; Lord ber station is a presumption of fact and may be rebut- Raym. 1006, the plaintiff was nonsuited upon the ted by evidence.

ground that the defendant, the last time he paid the M., while living with his wife, made her an allowance, and plaintiff, warned the plaintiff's servant not to trust his forbade her exceeding it or buying goods on his credit.

wife any more, and to give his master notice of it. D., in ignorance of this, supplied M,'s wife with articles

But Lord Holt said: “While they cohabit, the husof dress suitable to her station, upon credit. Held (affirming the judgment of Bowen, J.), that M. was not

band shall answer all contracts of hers for necessaries, liable to D. in an action for the price of the goods,

for his assent shall be presumed to all necessary con

tracts upon account of the cohabiting, unless the THIS was an appeal from the judgment of Bowen, contrary appear; but if the contrary appear, as by

the warning in this case, there is no room for such a the manager of an hotel at Bradford, to recover 421. the presumption." In Waithman and another v. Wakefield, price of various articles of dress supplied by Messrs. i Camp. 120, Lord Elleuborough says: “Where a hus

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band is living in the same house with his wife, he is might be in the position of managing the establishliable to any extent for goods which he permits her to ment. That consideration was the foundation of the receive there; she is considered as his agent, and the judgment in Ruddock v. Marsh, 1 H. & N. 601. But law implies a promise on his part to pay the value. If that is not the case here; it cannot be pretended that they are not cohabiting, then he is in general only there is any practice which is binding in this case; the liable for such necessaries as from his situation in life court cannot take judicial notice of a practice to it is his duty to supply to her. * However, it pledge a husband's credit for dresses, and I should is the duty of tradesmen to make inquiries before hope that no such practice does exist in fact. The trusting a married woman who is a stranger to them; question here is whether the wife has authority to and the plaintiffs do not seem to have taken the pains pledge her husband's credit; it is not the same as authey were bound to do, to ascertain the defendant's thority to spend ready money, for if she did spend responsibility.” In Montague v. Benedict, 3 B. & C. ready money the husband could not refuse to accept 631 ; 2 Sm. L. C. (7th ed.) 467, Littledale, J., says: the article which she had bought. The question here There are many cases in which the assent of the hus- is, whether the wife can pledge her husband's credit band may be presumed. In Comyn's Digest, tit. and make him liable. Why should she against her * Baron and Feme' (2), it is laid down that if the wife husband's orders? If he desires that she should have trades in goods, and buys for her trade when she authority, he can give it. Then take the case of the cohabits with her husband, his assent is to be pre- tradesman, he is not bound to give credit; or he may sumed; and if a wife buy necessary apparel for her- say to the wife, before he trusts her, “Have you your self, the assent of the husband shall generally be husband's authority?" and he has this security, that intended." The assent of the husband will be pre- if she falsely says she has, she would be liable to an sumed during cohabitation to his wife's ordering what indictment for obtaining goods by false pretenses. I is necessary for the purposes of the family and house- do not say there would be any great probability of a hold. In Seaton v. Benedict, 5 Bing. 28; 2 Sm. L. C. conviction. Or he may say, “I must have the hus(7th ed.) 475, Best, C. J., says: A husband is only band's assurance that the wife has authority.” It may liable for debts contracted by his wife on the assump- be said that by doing so the tradesman would offend tion that she acts as his agent. If he omits to furnish his customers; that may be a good reason why he her with necessaries, he makes her impliedly his agent should not ask the question, but it is no reason why to purchase them.” If that is so, a secret revocation we should make the husband pay. I am of opinion will not do. The ordinary law of agency will apply. that there is no reason of convenience or usage for the In Johnston v. Sumner, 3 Hurl. & N. 261; 27 L. J. 341, law being as the plaintiffs would have it, and there is Ex., the Court of Exchequer say: "The principle is no authority for that view. I think the law is the merely that of agency.

* If a man and his wife other way, and that the judgment ought to be affirmed. live together, it matters not what private agreement As to the question of expediency, it would be most they may make, the wife has all the usual authority of mischievous to enable a foolish woman and a tradesa wife.” [Thesiger, L. J., cites Reid v. Teakle, 13 C. man to combine to make the husband liable. B. 627.) In Dyer v. East, 1 Mod. 9, Kelynge, C. J.,

BAGGALLAY, L. J. I have had an opportunity of says: "The husband must pay for the wife's apparel, unless she elope, and he give notice not to trust her.”

considering the judgment which Thesiger, L. J., is In Tod v. Stokes, 12 Mod. 241, Holt, C. J., held that the

about to deliver, and I entirely agree with it; at the

same time I do not dissent from the observations of reason why the husband shall pay debts contracted by

Bramwell, L. J. the wife is upon the credit the law gives her by implication, in respect of cohabitation, and is like credit THESIGER, L. J. The state of facts upon which the given to a servant. The wife here was an agent de judgment of the court is to proceed I take to be as folfacto. They also cited Manby and another v. Scott, 1 lows: A husband and wife living together; the husLev. 4; 1 Sider. 109; 1 Mod. 124; Bao. Abr., tit. “Baron band able and willing to supply the wife with necessaand Feme;" 2 Sm. L. C. 445.

ries or the means of obtaining them; an agreement Wiliis, Q. C., and McColl, for the defendant.

between them, not made publio in any way, that the

wife shall not pledge her husband's credit; a tradesBRAMWELL, L. J. The question here is, whether man, without notice of that agreement, and without the defendant is bound to pay for goods supplied to his having had any previous dealings with the wife, supwife without his authority or knowledge. The goods plying her upon the credit of the husband, but withwere articles of dress, and were necessaries in the sense out his knowledge or assent, with articles of female of being suitable for the wife in her station, but not in attire suitable to her station in life; an action brought the sense of her standing in need of them, for she had against the husband for the price of such articles. either a sufficient supply already or sufficient funds The question for us is, whether the action is mainfrom her husband to supply herself with them. The tainable. I agree with the other members of the action used to be one of assumpsit, and it was neces- court, and with Bowen, J., that it is not. The appelsary to show, if possible, that the wife was the agent lants' counsel have brought under our notice a considof her husband, and therefore a case of this kind erable number of authorities with the view of estabalways presents a technical appearance in arguments. lishing that the law as laid down in Jolly v. Rees is There are cases in which the wife as an agent has erroneous. I think that the authorities have a contrary authority to bind her husband; for instance, if he con- effect. They establish beyond controversy that the ducts himself so that she is obliged to leave him, or if liability of a husband for debts incurred by his wife he turns her out of doors, he is bound to maintain her, during cohabitation is based upon the ordinary prinand she can pledge his credit for necessaries; and I ciples of agency. It follows that he is only liable can understand that there may be other cases, where when he has expressly or impliedly, by prior mandate the husband and wife are cohabiting, and persons in or subsequent ratification, authorized her to pledge the same class in society, and living in the same neigh- his credit, or has so conducted himself as to make it borhood are accustomed to have certain articles on inequitable for him to deny, orto estop him from deny. credit, or by weekly bills, as for instance in the case of ing her authority. In the present case express authority butcher's meat. In such cases it seems to me that the

out of the question, and there is no evidence that wife would have a presumed authority to pledge the the defendant ever assented in any way to the act of husband's credit, and the husband would have to nega- his wife in pledging his credit to the plaintiffs. But it tive it. This would apply, not only to a wife, but also is said that there is a presumption that a wife living to a sister or a housekeeper, or any other person who with her husband is authorized to pledge her husband's

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