1 Mason v. Morgan, 2 Ad. & El. 30; s. c. 4 Nev. & Man. 46.
2 Day v. Pargrave, cited in Philliskirk v. Pluckwell, 2 M. & S. 393; 1 Roll. Abr. 345.
3 Woodman v. Chapman, 1 Camp. 189; Ankerstein v. Clarke, 4 T. R. 616; Philliskirk v. Pluckwell, 2 M. & S. 393; Swann v. Gauge, 1 Hayw. (N. C.) 3; Brown v. Langford, 3 Bibb, 497; Richards v. Richards, 2 B. & Ad. 447; Ryland v. Smith, 1 Myl. & Cr. 53; Gaters v. Madeley, 6 M. & W. 423. In this case Baron Parke said: "This is an action on a promissory note - an instrument on which no one can sue unless he was originally a party to it, or has become entitled to it under one who.was. A promissory note is not a personal chattel in possession, but a chose in action of a peculiar nature; but which has indeed been made by statute assignable and transferable according to the custom of merchants, like a bill of exchange; yet still it is a chose in action, and nothing more. When a chose in action, such as a bond or note, is given to a feme covert, the husband may elect to let his wife have the benefit of it, or if he thinks proper, he may take it himself; and if, in this case, the husband had in his lifetime brought an action upon this note in his own name, that would have amounted to an election to take it himself, and to an expression of dissent on his part to his wife's having any interest in it. On the other hand, he may, if he pleases, leave it as it is, and in that case the remedy on it survives to the wife, or he may, according to the decision in Philliskirk v. Pluckwell, 2 M. & S. 393, adopt another course, and join her name with his own; and in that case, if he should die after judgment, the wife would be entitled to the benefit of the note, as the judgment would survive to her."
§ 155. With these exceptions a married woman is incapacitated legally to enter into any contract, so as to bind herself personally, or to sue or be sued in her own name during her coverture.5 Her contracts are only binding upon her through his consent and ratification, and even then she cannot sue or be sued alone upon them. Tims, for instance, the common contracts which she makes with tradesmen to supply the family with necessaries, only bind the husband upon the presumption that he has empowered her to act as his agent, which may be rebutted and negatived by evidence.6
§ 156. But connected with the wife's disabilities, and growing directly out of them, are certain privileges and immunities, to counterbalance, in some measure, the disadvantages imposed upon her by her coverture. She is not personally liable upon her contracts, and can throw the whole burden of those expenses for which she would otherwise be liable, upon her husband, if they can be recovered of him at law; and if they cannot be recovered of him, she may utterly avoid them.
§ 157. This brings us to the consideration of those contracts entered into by the wife, for which the law makes the husband responsible.1 The general rule is, that the wife can only bind the husband by her contract as his agent, acting under his authority or with his concurrence, either express or implied.2 In cases where the consent of the husband is expressly given, little dispute can occur, and the question is solely for the jury. The great proportion of cases where the question whether the husband has authorized or assented to the contract of the wife arises, are where the authorization is to be implied from the circumstances. The general presumption is, where the wife is living with the husband, that she has authority to bind him for the payment of such things as are suitable to the station which he permits her to assume; the presumption, however, may be overturned by showing want of authority in the wife.3
1 Scarpellini v. Atcheson, 14 Law J. (n. s.) Q. B. 333; s. c. 7 Q. B. 864; Nash v. Nash, 2 Madd. 133; Ryland v. Smith, 1 Myl. & Cr. 53; Gaters v. Madeley, 6 M. & W. 425; Bendix v. Wakeman, 12 M. & W. 97. See Fleet v. Perrins, Law R. 4 Q. B. 500 (1869).
2 Ryland v. Smith, 1 Myl. & Cr. 53.
3 Nash v. Nash, 2 Madd. 133; Hart v. Stevens, 14 Law J. (n. s.) Q. B. 148, cited Smith on Contracts, p. 223, note (b); s. c. 6 Q. B. 938.
4 Baker v. Hall, 12 Ves. 497. 5 Farrar v. Bessey, 24 Vt. 89.
6 Bac. Abr. Baron & Feme, H. 3.
§ 158. And in the first place, as to the liability of the husband for necessaries furnished to his wife. The consideration of this liability divides itself into two heads: first, when the contract is made while the husband and wife are living together; and, second, when it is made while they are living apart.
§ 159. The rule applicable to the first class of cases is, that so long as the husband and wife cohabit, and he is apparently sustaining the marital relation, he is bound to supply her with necessaries suitable to her station; and this, too, notwithstanding any agreement made between them.4 If he omit to do so, the law by an implication from his duty, creates an obligation on his part to pay for all necessaries which the wife purchases for herself. This liability of the husband is generally treated as growing out of his implied assent, but it would seem more properly to stand upon the ground that it is a direct right on her part created by the marital relation. At all events, the general rules of agency do not apply to these cases, for the husband cannot avoid his liability for necessaries furnished to his wife during cohabitation, by a general prohibition to all persons, or even by a special prohibition to an individual tradesman, from contracting therefor with his wife.1 A fortiori, the mere fact of his ignorance would be of no protection to him against such contract. Nor does the fact that the tradesman credits only the wife make any difference, for even although he should not know she was married, the husband would be bound.2 So also, although the husband be a lunatic and confined in an asylum, his wife has still authority to pledge his credit for necessaries supplied to her, which is avowedly an obligation not growing out of assent.3