§ 175. Where the separation between the two parties is not by act of law, but is by deed, or by mutual agreement without deed, the wife cannot contract so as to bind the husband, provided he allow her an ample and separate maintenance.1 And if the tradesman supply her even with necessaries on credit, he has no legal claim upon her, since she, being a feme covert, cannot be separately liable. Nor has he any legal claim therefor against the husband, since the latter is not liable for necessaries supplied to her during such separation, if the fund which he allots to her be sufficient for her support and duly paid. The allowance being made by the husband and not by the court, a different rule prevails in the two cases; and in order to avoid her contract for necessaries, it is incumbent on the husband to show, that the allowance is adequate under the circumstances, and that it has been actually paid. Nor will the wife's mere acquiescence prove its adequacy.2 But if she have an adequate sum allowed to her for her maintenance, it would not matter whether it were paid by the husband or by any other person.3 In either such case, whoever trusts her, trusts entirely to her honor,4 unless he had been accustomed to trust her before, and was not aware of the separation, it not having become a matter of notoriety.5 But, although it is incumbent upon the husband to prove the adequacy of the allowance and the due payment of it,6 because such proof is requisite to rebut the presumption of his liability for " necessaries " furnished to his wife; yet it is not necessary for him to give notice of the allowance to the tradesman, in order to absolve himself from liability.1 Whether the allowance be sufficient is a question for the jury solely.2 But if the wife consent to live apart from the husband upon a certain fixed allowance, she cannot pledge his credit for necessaries, though the allowance prove inadequate.3
9. Brown, 4 T. R. 766; Marshall v. Rutton, 8 T. R. 545. The objections to such a doctrine, stated in Cox v. Kitchin, 1 Bos. & Pul. 339: " How is she to find the means of supporting herself? How is she to procure even a joint of meat for her daily subsistence? " etc, are easily enough answered. She can pay for whatever she would purchase on the spot. Credit is not necessary.
1 Willson v. Smyth, 1 B. & Ad. 801; Hunt v. De Blaquiere, 5 Bing. 550.
2 Willson v. Smyth, 1 B. & Ad. 801.
3 Hunt v. De Blaquiere, 5 Bing. 550; Keegan v. Smith, 5 B. & C. 375; Willson v. Smyth, 1 B. & Ad. 801; Lewis v. Lee, 3 B. & C. 291; Baker v. Barney, 8 Johns. 72.
4 Keegan v. Smith, 5 B. & C. 375.
5 Read v. Legard, 6 Exch. 637; 4 Eng. Law & Eq. 523; Shaw v. Thompson, 16 Pick. 198. See Brookfield v. Allen, 6 Allen, 585 (1863).
1 Marshall v. Rutton, 8 T. R. 545; Hodgkinson v. Fletcher, 4 Camp. 70; Emmett v. Norton, 8 C. & P. 506; Corbett v. Poelnitz, 1 T. R. 6; Willson v. Smyth, 1 B. & Ad. 801; Ellah v. Leigh, 5 T. R. 679; Chambers v. Donaldson, 9 East, 471; Lewis v. Lee, 3 B. & C. 291; Johnston v. Sumner, 3 H. & N. 261 (1858). See the able case of Cany v. Patton, 2 Ashm. 140, where this subject is treated with great acuteness. As to the authority of the wife to effect insurances in the long absence of the husband from home, see O'Connor v. Hartford Fire Ins. Co., 31 Wis. 160 (1872).
2 Nurse v. Craig, 2 N. R. 148; Hodgkinson v. Fletcher, 4 Camp. 70; Baker v. Barney, 8 Johns. 72; Holt v. Brien, 4 B. & Al. 252; Willson v. Smyth, 1 B. & Ad. 801; Dennys v. Sargeant, 6 C. & P. 419.
3 Litson v. Brown, 26 Ind. 489 (1866); Clifford v. Laton, Mood. & Malk. 102; s. c. 3 C. & P. 16. See Johnston v. Sumner, 3 H. & N. 261 (1858); Boardman e. Silver, 100 Mass. 330 (1868).
4 Todd v. Stokes, 1 Ld. Raym. 444; Nurse v. Craig, 2 N. R. 148. 5 Todd v. Stokes, 1 Ld. Raym. 444; Cany v. Patton, 2 Ashm. 140.
6 Hodgkinson v. Fletcher, 4 Camp. 70; Nurse v. Craig, 2 N. R. 148; Chitty on Cont. 173.
§ 176. There is, however, one exception to the rule, that the husband is not liable for the wife's debts during their separation, provided there be a sufficient allowance granted her; which obtains in cases where she incurs expenses for the purpose of protecting herself, by articles of peace, against his violence, for this is a diminution of her allowance by misconduct on his part, which ought not to enure to his benefit.4 But he would not be liable to pay the bill of an attorney whom she employs to procure an indictment of him,5 - nor would he be liable to an attorney for professional services rendered to the wife, in forwarding a petition of divorce against him, nor in defending a petition for divorce instituted by him against her for her fault.6 Nor would he be responsible for the counterpart of the deed of separation procured by the wife's trustee, except upon his express promise.7
§ 177. It was formerly thought to be an exception to the rule, that a married woman is not personally responsible for her debts, where a married woman lives separate from her husband, and by fraudulently representing herself to be a feme sole, obtains credit for goods supplied to her.1 But whatever may be the rule of liability in an action of deceit, or in a court of equity, it is settled that an action on the contract cannot be maintained.2
1 Mizen v. Pick, 3 M. & W. 481; Turner v. Winter, Selw. N. P. 262. See also Clifford v. Laton, Mood. & Malk. 102; s. c. 3 C. & P. 16.
2 Hopkinson v. Fletcher, 4 Camp. 70; Emmett v. Norton, 8 C. & P. 506; Pidgin v. Cram, 8 N. H. 350; Atkins v. Curwood, 7 C. & P. 756; Ewers v. Hutton, 3 Esp. 255; Marshall v. Rutton, 8 T. R. 545.
3 Biffin v. Bignell, 7H.&N. 877 (1862).
4 Turner v. Rookes, 10 Ad. & El. 47. And see Shepherd V. Mackoul, 3 Camp. 326; Brown v. Ackroyd, 5 El. & Bl. 819; 34 Eng. Law & Eq. 214.
5 Grindell v. Godmond, 5 Ad. & El. 755; Ladd v. Lynn, 2 M. & W. 265.
6 Coffin v. Dunham, 8 Cush. 404; Wing v. Hurlburt, 15 Vt. 607; Shelton v. Pendleton, 18 Conn. 417; Shepherd v. Mackoul, 3 Camp. 326; Dorsey v. Goodenow, Wright, 120; Ray v. Addin, 50 N. H. 82. See, however, Brown v. Ackroyd, 5 El. & Bl. 819; Mecredy v. Taylor, 20 W. R. 252. Nor would the wife herself be liable, unless by express promise after the divorce. Wilson v. Burr, 25 Wend. 386. See Williams v. Fowler, M'Clel. & Younge, 269.