1 It is more convenient to consider this subject here than to transfer it to the chapter on Agents.
2 Montague v. Benedict, 3 B. & C. C35; Seaton v. Benedict, 5 Bing. 30; Mizen v. Pick, 3M.&W. 481; Rumney v. Keyes, 7 N. H. 571.
3 Jolly v. Rees, 15 C. B. (n. s.) 628 (1864). See Ryan v. Nolan, Irish R. 3 C. L. 319 (1869); Shoolbred u. Baker, 16 L. T. (n. s.) 359 (1867).
* Johnston v. Sumner, 3 H. & N. 261 (1858).
§ 160. The responsibilities of a husband are not solely those of contract; they stand upon a higher ground, for marriage is not simply a contract, but a civil and religious status, carrying with it obligations and duties of a peculiar character. An agreement to marry is purely a contract, but it was reserved for Protestantism and the common law to treat the marriage itself as a contract, and the relations and duties of husband and wife as founded solely upon contract. In the Roman Catholic church, it is considered as a religious vow, and is viewed as a sacrament. Were it only a contract, a breach of it, by either party, would entitle the other to treat it as null, and to avoid all obligations arising therefrom, - and by mutual agreement the bond of matrimony, might, at any time, be loosed. But neither by the common nor statute law of England or America, are these common incidents of contracts recognized as belonging to the relation of marriage. Divorce in England formerly must have been by act of Parliament,4 and in America, although more freely admitted than in England, and for a greater variety of causes, it requires a judicial decree.1 The doctrines relating to marriage, as thus generally stated by Baron Alderson, in a late case, evidently do not stand solely on the ground of contract: 2 "By the marriage contract, entered into by the parties when in their sound senses, the husband contracts a relation which gives certain rights to his wife, and it is sufficient for us to say, that one of them is, that she is entitled to be supported according to the estate and condition of her husband. If, through the omission or misconduct of her husband, she is compelled to procure the necessary articles for herself, - as, for instance, where he drives her out of his house, or brings improper persons into his house, so that any respectable woman must leave it, he does, according to the cases, give her authority to pledge his credit for her necessary sustenance elsewhere; that is, he has given her such authority by force of the original relation between husband and wife. So, where he omits to furnish her with necessaries while living with him, she may procure them elsewhere, as otherwise she might perish. Here the husband being lunatic, and, by God's visitation, unable to provide her with necessaries, she surely must be considered as in a situation where a neighbor may furnish her with them; and then, as, by the relation which he has originally contracted, the husband should have provided her with them himself, he becomes liable to the person who does it for him."
1 Bentley v. Griffin, 5 Taunt. 356; Rotch v. Miles, 2 Conn. 638; Emery v. Neighbour, 2 Halst. 142; Dixon v. Hurrell, 8 C. & P. 717; Tebbets v. Hap-good, 34 N. H. 420.
2 Cunningham v. Irwin, 7 S. & R. 247; Furlong v. Hysom, 35 Me. 332.
3 Read v. Legard, 6 Exch. 642; 4 Eng. Law & Eq. 528. But the fact that the husband is a lunatic can give the wife no greater authority to pledge her husband's credit than she has in ordinary cases. Richardson v. Du Bois, Law R. 5 Q. B. 51 (1870); s. c. 10 B. & S. 830.
4 But divorces are now decreed by court in England; and a husband, after a dissolution of the marriage by the Divorce Court, under St. 20 & 21 Vict. ch. 85, is not liable for a tort committed by the wife during coverture Capel v. Powell, 17 C. B. (n. s.) 743.
§ 161. Considering the liability of the husband as one growing out of the marital relation, the limits of his liability are evident. Whenever he has performed that duty, he is legally absolved from other responsibilities. Where, therefore, he pays his wife an adequate allowance to enable her to furnish herself with necessaries;3 or wherever he actually furnishes sufficient "necessaries" 1 to her; or wherever she violates her duties as wife, by abandoning him without cause,2 or by eloping with an adulterer, - he is, as we shall see, entirely absolved from his liability on her contracts, even for "necessaries."
1 The same view is taken by Mr. Bishop in his admirable work on Marriage and Divorce (§ 29 to 44), to which we would refer the reader for a further discussion of the question, and a full citation of the authorities bearing upon it.
2 Read v. Legard, 15 Jur. 496; 6 Exch. 642; 4 Eng. Law & Eq. 528.
3 Kimball v. Keyes, 11 Wend. 33; Mott v. Comstock, 8 Wend. 544; Baker v. Barney, 8 Johns. 72; Cany v. Patton, 2 Ashm. 140.
§ 162. The husband is, however, at law, only liable for necessaries, and not for money lent the wife without his knowledge.3 Yet, in equity, if the circumstances be such as would render the husband liable for the necessaries purchased therewith, he will be liable for money borrowed for such purpose, provided it be so applied, and not otherwise.4
§ 163. Inlaw, the term "necessaries" is understood to mean not only articles which are of absolute necessity, but also such things as are suitable to the fortune and condition of the person to whom they are supplied.5 But it is not sufficient, that the articles be of a proper kind and quality; they must also be of a proper quantity, and not be excessive in number and amount.6 If the wife be already abundantly supplied, additional goods, though of a proper kind and quality, would not be considered "necessaries."7 It becomes, therefore, the duty of a tradesman not only to ascertain whether the goods he furnishes be suitable to the condition and rank of the wife, but whether she be already sufficiently provided with such goods.8