Sec 87, A husband's liability for necessaries furnished to his wife living separate from him is limited to the cases in which this separation is compelled by his misconduct

And the of the husband, so the plaintiff shall stand in their place and be a creditor also ; and let the trustees pay him his money and likewise his costs.' And in Marlow v. Pitfield, 1 P. Wms. 559, the court said: ' If one lends money to an infant to pay a debt for necessaries, and in consequence thereof the infant does pay the debt, here, although he may not be liable at law, he must nevertheless be so in equity.' In Deare v. Soutten, L. R. 9 Eq. 151 (1869), the marginal note is as follows : 'A person who has advanced money to a married woman deserted by her husband for the purpose of, and which has been actually applied towards her support, is entitled in equity, though not at law, to recover such sums from the husband.' In giving the decision, Lord Romilly, M. R., said: 'I am of the opinion that this is a proper suit and that the plaintiff is entitled to a decree. The cases cited on behalf of the defendant have no application, and May v. Shey, 16 Sim. 588, is overruled by .Tenner v. Morris, 3 De G. F. & J. 45.' " He then proceeds to quote from the latter case, and from Walker v. Simpson, 7 Watts & S. 83, to the same effect, and concluded as follows : "We willingly follow the leading of these authorities, because we think that the line of separation between necessaries and money loaned for the purpose of purchasing them may well be obliterated. So far as the husband is concerned, they are practically convertible terms. His burden will not be increased if he is made liable for money ; the scope of the word necessaries will not thereby be broadened ; the lender will be compelled to prove an actual expenditure for them ; the law has discharged its duty to the husband in protecting him from liability for anything beyond them ; it only discharges its duty to the wife by making it impossible for him to escape liability for these irrespective of the method by which he forces her to obtain them. If he has any preference as to that method, the law will secure it to him ; if he refuses to adopt any, he is not to be heard to complain if she is permitted to elect, providing always that she is kept within the small circle of necessity. It is not certain that credit will, under all circumstances, supply necessaries to the wife ; at times they may not be had without money, and accidents of time, place, or distance may bring about such a state of things as that a friend may be able and willing to place money in her hands upon her husband's credit, who cannot personally attend to its disbursement."

1 Dixon v. Hurrell, 8 C. & P. 717 ; Montague v. Benedict, 3 B. & C. 635.

2 Infra, sec 88.

3 Hayward v. Barker, 52 Vt. 429.

better opinion is that, to establish liability under these circumstances, the party suing the husband must make out such a case against him as would entitle her to a decree of divorce should it be sought by her. Hence, in such cases, the burden of showing the wife had cause for leaving is on the party suing the husband. And the husband may set up as a defence any provocative misconduct on the part of the wife which would entitle him to a judgment had she proceeded against him for divorce.1 Adultery on the wife's part relieves the husband from the duty of her maintenance, even though the party furnishing her with the goods has no notice of the adultery;2 though a verdict of adultery not followed by decree is not conclusive in a suit against the husband.3 Nor is it a sufficient reply that the husband was guilty of adultery in the first place.4