Now, with regard to the question what are necessaries, it is a question which always and obviously depends upon the circumstances of the particular case under discussion for the time being. Servants, suitable to the husband's fortune and rank, have been held to be such necessaries in a case where the defendant was Governor of Barbadoes, and his wife, being about to quit England in order to join him there, engaged the plaintiff as her maid to accompany her on the voyage (e). The question is one which is continually arising, and of which there are many reported examples. Thus, in Hunt v. De Blaquiere (f), articles of furniture for a house were, under the circumstances of the case, held to be necessaries.
(d) Ld. Raym. 1006; Waithman v. Wakefield, 1 Camp. 120. See Jolly v. Rees, 33 L. J. (C. P.) 177; 15 C. B. (N. S.) (109 E. C L. E.) 628.
Connerat v. Goldsmith, 6 Ga. 14; Henderson v. Stringer, 2 Dana, 291; so much so, that it matters not whether the woman be really the wife of the man sought to be charged, or only apppar so to be, if he allow her to live with him and pass for his wife : Watson v. Threlkeld, 2 Esp. 637; Blades v. Free, 9 B. & C. (17 E. C. L. E.) 167.-R.
Furlong v. Hysom, 35 Me. 332; Wood v. OKelley, 8 Cush. 406; Mitchell v. Treanor, 11 Ga. 324- s.
Lane v. McKeen, 15 Me. 304; Green v. Sperry, 16 Vt. 390; Benjamin v. Benjamin, 15 Conn. 347; Leeds v. Vail, 15 Pa. St. 185; Breinig v. Meitzler, 23 lb. 156; Eames v. Sweetser, 101 Mass. 78; Raynes v. Bennett, 114 lb. 424; Powers v. Eussell, 26 Mich. 179; Weir v. Groat, 4 Hun, 193; Flynn v. Messenger, 28 Minn. 208.
But the cases most frequently referred to on the *subject are Montague v. Benedict (g) and Seaton v. Benedict (h). The name of the defendant probably strikes you as fictitious, and in truth it is so, being taken from a play of Shakespeare, called Much Ado about Nothing, in which one of the characters is a young officer named Benedict, who protests vehemently against marriage. The real defendant was a highly respectable professional gentleman; and it was sought in Seaton v. Benedict to charge him with a a bill contracted by his wife for articles of millinery of a very expensive description. It appeared at the trial that she was already supplied with all the necessary articles of dress; and the Court held, on a motion for a new trial, that the defendant was in point of law entitled to the verdict.
In the other case of Montague v. Benedict, the goods supplied were articles of jewellery, to the amount of £83, which had been delivered in the course of two months. The plaintiff's evidence was, that the defendant lived in a furnished house of which the rent was £200 year, and that the lady had a fortune of £4000; the defendant's that the lady was already supplied with sufficient jewellery. The jury found a verdict for the plaintiff; but the Court set it aside, on the ground that there was no evidence to support it. Mr. J. Bayley said, "If the husband and wife live together, *and the husband will not supply her with necessaries or the means of obtaining them, then, although she has her remedy in the Ecclesiastical Court, yet she is at liberty to pledge the credit of her husband for what is strictly necessary to her own support. But, whenever the husband and the wife are living together, and he provides her with necessaries, the husband is not bound by contracts of the wife, except where there is reasonable evidence to show that the wife has made the contract with his assent. Cohabitation is presumptive evidence of the assent of the husband, but it may be rebutted by contrary evidence;1 and when such assent is proved, the wife is the agent of the husband duly authorized." Indeed, the husband's assent during cohabitation being thus presumed to be given to the wife's contracting for necessaries suitable to his degree, the suitableness of the things contracted for is evidently to be considered. "It is because she is the agent of her husband," said Parke, B., in Lane v. Ironmonger (i),"that the tradesman ought to be careful not to supply her to an extravagant extent. For, giving orders to such an extent would go to show that she was not acting as the husband's agent, and to the extent authorized by him."
(e) White ». Cuyler, 1 Esp. 200; 6 T. E. 176. (f) 5 Bing. (15 E. C. L. R.) 550 (g) 3 B. &. C. (10 E. C. L. E.) 631. (ft) 5 Bing. (15 E. C. L. E.) 28.
The before-mentioned observations of Mr. J. Bayley support the second of the rules to which I *adverted, namely, that the contract must not only be for necessaries suitable to the husband's fortune and degree, but that the person making it must not have been forbidden to contract with the wife on his account.1
(i) 13 M. & W. 368.
1 As, for instance, by showing that the tradesman gave credit to the wife herself: Connerat v. Goldsmith, 6 Ga. 14.-R. Swett v. Penrice, 24 Miss. 416.-s.
This point, indeed, had been decided long before by the majority of the judges in the Exchequer Chamber, in the case of Manby v. Scott (k). The discussions in this case were exceedingly long and elaborate; and, as frequently happens in the old reports, the reasons given in some instances almost ludicrous; for instance, Mr. Justice Twisden, who was at first of opinion that it was not in the husband's power to prohibit another from trusting his wife for necessaries, gave as a reason that, if he might prohibit one person he might go on doing so till he had at last prohibited every one in England; and then, says he, "If the husband should adopt this method, and join the King's enemies, the wife must go too, and then she will be hanged-or stay at home, and then she will be starved." However, the majority of the Court were of opinion that the husband may prohibit a particular person from trusting his wife even for necessaries, and that, if he trust her in defiance of that prohibition, he cannot hold the husband liable.2
(k) 1 Lev. 4; 1 Siderfin, 109; 2 Smith L. C. 445, 8th ed.; Bac. Abr. "Baron & Feme."