1 Etherington v. Parrot, 1 Salk. 118; s. c. 2 Ld. Raym. 1006; Bolton v. Prentice, 2 Str. 1214; Hardie v. Grant, 8 C. & P. 512. A husband is not liable for goods supplied to his wife after notice to the plaintiff not to trust her, unless he has neglected his legal duty to provide for her. Keller v. Phillips, 39 N. Y. 351 (1868).
3 Manby v. Scott, 1 Sid. 127; Todd v. Stokes, 1 Ld. Raym. 444; Montague v. Benedict, 3 B. & C. 635; Child v. Hardyman, 2 Str. 875; Lungworthy v. Hockmore, 1 Ld. Raym. 444, n.
4 Bentley v. Griffin, 5 Taunt. 356; Taylor v. Brittan, 1 C. & P. 16, n., Dixon v. Hurrell, 8 C. & P. 717; Carter v. Howard, 39 Vt. 106 (1866); ante, § 167; Taylor v. Shelton, 30 Conn. 122 (1861).
5 Metcalfe v. Shaw, 3 Camp. 22.
6 Ibid.; Harvey v. Norton, 4 Jur. 42; Bentley v. Griffin, 5 Taunt. 356.
§ 173. But if the wife have lately left the husband, and the fact of their separation be not notorious, and not in fact known to the tradesman, a general notice would seem to be necessary to absolve the husband.5 And if the husband allow the wife to remain in his house, and live with her after she has been guilty of adultery, he is liable for necessaries supplied to her.6 Nor would he be absolved from liability by afterwards leaving the house for such cause, and abandoning her, unless the circumstances under which it is done be equivalent to notice to the public that he leaves her because of her adultery. Thus, where a husband, on account of the adultery of his wife, left her with his two children in his house, without making any provision for her, and she continued to live there in adultery, it was held, that the husband was liable to the tradesman for necessaries supplied to her, unless the tradesman knew or ought to have known the circumstances under which she was living.1 Where the wife and husband have separated on account of the adultery of the wife, she does not acquire the character of a feme sole, although her husband be not liable for her debts, and although there be no divorce; and being a feme covert, the tradesman who supplies her even with necessaries, does so at his own risk, and cannot recover their value from her.2 He has no security, therefore, but to exact payment on the spot for all he sells her.
1 Hethrington v. Graham, 6 Bing. 135; Hunt v. De Blaquiere, 5 Bing. 550; Hardie v. Grant, 8 C. & P. 512; Emmett v. Norton, 8 C. & P. 506; Govier v. Hancock, 6 T. R. 603; Norton v. Fazan, 1 Bos. & Pul. 226; Ozard v. Darnford, Selw. N. P. 221; Bird v. Jones, 3 Man. & Ryl. 121; Cox v. Kitchin, 1 Bos. & Pul. 338; Hunter v. Boucher, 3 Pick. 289; Cooper v. Lloyd, 6 C. B. (n. s.) 519 (1859).
2 Atkyns v. Pearce, 2 C. B. (n. s.) 763 (1857).
3 Todd v. Stokes, 1 Ld. Raym. 444, 445; Hinton v. Hudson, Freem. 248.
4 Clifford v. Laton, 3 C. & P. 16; Mainwaring v. Leslie, 2 C. & P. 507; Bird v. Jones, 3 Man. & Ryl. 121; Edwards v. Towels, 5 Man. & Grang. 624; Hindley v. Westmeath, 6 B. & C. 200; Blowers v. Sturtevant, 4 Denio, 46; Walker v. Simpson, 7 Watts & Serg. 83; Cany v. Patton, 2 Ashm. 140. But see Rumney v. Keyes, 7 N. H. 571; Frost v. Willis, 13 Vt. 202.
5 Todd v. Stokes, 1 Ld. Raym. 444, 445; Hinton v. Hudson, Freem. 248.
6 Houliston v. Smyth, 3 Bing. 130.
1 Norton v. Fazan, 1 Bos. & Pul. 226. In this case Chief Justice Eyre said: "If the defendant, in another action brought against him by some other tradesman, shall be able to establish the notoriety of his wife's situation, he may defend himself. But as the case stands at present, this woman appears to have been living in a house in which she was placed by the defendant himself, together with two children bearing the husband's name, both of whom were born in wedlock. It is true that she had an adulterous intercourse with another man, but that was not proved to be known to this tradesman. If the defendant can bring it home to any other tradesman who shall be in the same situation as the present plaintiff, that he did know or ought to have known the circumstances under which the wife was living, the defendant may perhaps be able to prevent another verdict passing against him." Rawlyns v. Vandyke, 3 Esp. 250.
2 Hatchett v. Baddeley, 2 W. Bl. 1081. In this case, Blackstone, J., says: "It seems to be supposed, by the argument, that if the husband is not bound to pay this debt, it follows, that the wife may be compelled alone. But this is no legal consequence. I think, in the present case, that it cannot be recovered of either. And I see no hardship in a man's losing his money, that avows upon the record, that he furnished a coach to the wife of a player, whom he knew to have run away from her husband. If this were universally known to be law, it would be difficult for such women to gain credit; and this would consequently reduce the number of wanderers. But be this as it may, I am clearly of opinion, that in no case can any feme covert be sued alone, except in the known excepted cases of abjuration, exile, and the like; where the husband is considered as dead, and the woman as a widow, or else as divorced a vinculo. Co. Litt. 133 a."See also the note of Mr. Ellsley to this case, p. 1080; Compton v. Collinson, 1 H. Bl. 350; Hyde v. Price, 3 Ves. 443; Lean v. Schutz, 2 W. Bl. 1198, and note (d); Gilchrist
§ 174. When the separation is by act of law, as by a decree of divorce a mensa et thoro, the responsibility of the husband is governed by the terms and conditions of the decree. If the court refuse her alimony (as in cases of adultery in England), she cannot bind the husband for necessaries, under any circumstances. If the court award her a certain sum as alimony, she has no power to bind him so long as that sum is paid, however insufficient it may be, in point of fact, to enable her to procure the things which are suitable to her rank and position; the award of the court being conclusive on the question of adequacy.1 Nor will a court of law enforce a contract for necessaries against the husband, although the decree awarding the alimony have ceased to be operative, provided it be renewable on application.2 Yet if the alimony be not paid, the wife is not bound to sue for the allowance, but the husband is liable in an action by the tradesman.3 So, also, he is liable for necessaries provided for his wife pending a suit in the ecclesiastical court, and before alimony is decreed, although a decree afterwards made should direct the alimony to be paid from a date before the time when the necessaries were provided.4 So, also, if the separation arises from the lunacy of the husband, and he is confined in an asylum, he is nevertheless liable for the wife's support in the mean time.5