2 Ibid.; Freestone v. Butcher, 9 C. & P. 643.
3 Atkins v. Curwood, 7 C. & P. 756. See Smith v. Allen, 1 Lansing, 101 (1869).
4 Waithman v. Wakefield, 1 Camp. 120; Gilman v. Andrus, 28 Vt. 241; Emmett v. Norton, 8 C. & P. 506; Freestone v. Butcher, 9 C. & P. 643.
5 White v. Cuyler, 1 Esp. 200; s. c. 6 T. R. 176. 6 Freestone v. Butcher, 9 C. & P. 643.
7 Waithman v. Wakefield, 1 Camp. 120.
1 Montague v. Benedict, 3 B. & C. 635; Watson v. Threlkeld, 2 Esp. 637; Robinson v. Nahon, 1 Camp. 245; Connerat v. Goldsmith, 6 Ga. 14; Blades v. Free, 9 B. & C. 169; Clifford v. Laton, 3 C. & P. 15.
2 Bentley v. Griffin, 5 Taunt. 356; Taylor v. Brittan, 1 C. & P. 16, note; Metcalfe v. Shaw, 3 Camp. 22; Holt v. Brien, 4 B. & Al. 255; Etherington v. Parrot, 2 Ld. Raym. 1006; s. c. 1 Salk. 118; Petty v. Anderson, 2 C. & P. 38; s. c. 3 Bing. 170; Bolton v. Prentice, 2 Str. 1214; Hardie v. Grant, 8 C. & P. 512; Spreadbury v. Chapman, 8 C. & P. 372.
3 Robinson v. Nahon, 1 Camp. 246; Watson v. Threlkeld, 2 Esp. 637; Ryan v. Sams, 12 Q. B. 460; Mace v. Cammel, Lofft, 782; Munro v. De Chemant, 4 Camp. 215; Blades v. Free, 9 B. & C. 167; Etherington v. Parrot, 1 Salk. 118, and Evans's note; Norwood v. Stevenson, Andr. 227; Bull. N. P. 136; Hudson v. Brent, cited 1 Bos. & Pul. 338.
4 Blades v. Free, 9 B. & C. 167.
5 Norton v. Fazan, 1 Bos. & Pul. 226; Blades v. Free, 9 B. & C. 167. 6 Munro v. De Chemant, 4 Camp. 215; Ryan v. Sams, 12 Q. B. 460. In this case, the defendant and Mrs. S., his mistress, lived together for years tracts, he must give notice to the tradesman not to supply his wife with such goods in future, and then he will not be liable, if the tradesman do not observe the prohibition.1 And a notice to the servant of the tradesman is, in this respect, considered as equivalent to a notice to the tradesman himself.2 Yet if the prohibition be not brought home to the knowledge of either the tradesman, or his agent, or his servant, it will not bind him.8
§ 169. So, also, although the wife have been guilty of adultery, yet if the husband still continue to cohabit with her, he is liable for necessaries;1 for cohabitation after knowledge of adultery is a condonation of the offence.2 And if the husband, after his wife has left him adulterously, receive her back, he becomes again liable on her contracts for necessaries.3
§ 170. Where the wife has been accustomed to purchase articles of a particular tradesman, whether they be necessaries or not, and the husband has paid for them without objection, it will be considered as sufficient evidence of an assent to her purchasing similar articles from him in future.4 And, in such a case, if the husband would avoid all liability on such conas husband and wife, and occupied three houses successively; at each time of their coming into a house the plaintiff was employed to do work and furnish materials, Mrs. S. as well as the defendant giving directions, and the defendant sanctioned her orders and paid the bills. The plaintiff knew that she was the defendant's mistress. While residing in the third house they separated; but Mrs. S., without the defendant's sanction, sent for the plaintiff to the house which she had not yet left, and ordered fittings up for a new house of her own. It was held, in an action for the last-mentioned goods, that it was a proper question for the jury, whether or not the defendant had given the plaintiff reason to believe that Mrs. S. continued to be his agent, and that on their finding the affirmative, the defendant was liable. Lord Denman, C. J., said, "In Munro v. De Chemant, 4 Camp. 215, it may be presumed that the parties had lived long separate; and it is consistent with the statement there that Lord Ellenborough may have noticed that circumstance as important if the parties were not married, but told the jury, ' if you think they are proved to have been man and wife, the case will be different.' And the order there seems to have commenced a new account. Here the defendant sanctions orders to the plaintiff in the name of Stanley, while the person in question is living with him under that name; and she afterwards gives orders to the plaintiff in the same name, circumstances apparently continuing unaltered. It would be unreasonable to expect more evidence in such a case."
1 Norton v. Fazan, 1 Bos. & Pul. 226; Harris v. Morris, 4 Esp. 41; Watson v. Threlkeld, 2 Esp. 637; Blades v. Free, 9 B. & C. 167; Robison v. Gosnold, 6 Mod. 171.
2 Quincy v. Quincy, 10 N. H. 272; Hall v. Hall, 4 N. H. 462.
3 Harris v. Morris, 4 Esp. 41. See also Rennick v. Ficklin, 3 B. Mon. 166.
4 Filmer v. Lynn, 4 Nev. & Man. 559; s. c. 1 Har. & W. 59; Gilman v. Andrus, 28 Vt. 241 (1856).
§ 171. If credit be given solely to the wife, the husband is not liable, although they" live together, and although he see her in possession of the goods bought.4 If, therefore, the tradesman should take her promissory note in payment, which would plainly indicate a reliance on her personal credit, the husband would not be liable for the price of the goods, nor on the note, nor need he prove that the goods were not "necessaries." 5 The question whether credit were given to the wife, is, however, generally a question of fact for the jury.6
§ 172. Having now considered the responsibility of the husband on the wife's contract, while they live together, it remains for us to consider his liability in case of a separation from his wife. And, in the first place, where a separation has ensued in consequence of the adultery of the wife, whether it be by a decree of divorce, or by the voluntary elopement of the wife, or by expulsion from the house of the husband, he is not responsible, even for the necessaries of life furnished to her;1 nor for medicine and medical attendance furnished, at his wife's request, for his children remaining with her during a temporary absence from home, if his wife be living in adultery at the time, and though the plaintiff be ignorant of the fact.2 The law will not only not force a husband to support an adulterous wife, but it will not allow her to receive dower. Nor is it necessary in such cases to give notice not to trust the wife, if the fact that the wife and husband live permanently separate be known, inasmuch as it is considered the duty of the tradesman to make inquiries, before he trusts a woman under such circumstances.3 Indeed, the presumption is against the husband's liability when he lives apart from his wife, and if a tradesman supply her under such circumstances, the burden of proof is on him to show the liability of the husband.4