(n) 5 Q. B. D. 394 (C. A.); 6 App. Cas. 24 (H. L.); 49 L. J. (Q. B., etc.) 497; 50 lb. 155.

(o) Jolly i'. Rees, 15 C. B. N. S. (109 E. C. L. E.) 628, 640; 33 L. J. (C. P.) 177, 179.

(p) See ante, p. *418.

Wife, when she makes the contract, is living separated from her husband, the case is quite different; and the only question is, whether the separation is with the husband's assent, or produced by the husband's misconduct. If the husband drive his wife from home, or if he do so misconduct himself that it is morally impossible and unreasonable that she should continue to reside in his house, he sends her into the world with authority to' pledge his credit for her necessary expenses. And this authority he cannot revoke or control by any notice or prohibition whatever. "If a man," said Lord Eldon, in Rawlyns v. Vandyke (q), "will not receive his wife into his house, or turns her out of doors, he sends her with credit for her reasonable expenses." "Where a wife's situation in her husband's house," says Lord Kenyan, in Hodges v. Hodges (r), "is rendered unsafe from his cruelty and ill-treatment, I shall rule it to be equivalent to his turning her out of the house, and that the husband shall be liable for necessaries furnished to her under those circumstances" (s).1 Even if the husband become *lunatic, and therefore unable to provide his wife with necessaries, he is in the same situation as a husband omitting to furnish them (t). But the authority of the wife to pledge her husband's credit is no greater in the case of a lunatic than in the ordinary case of husband and wife (u).

(q) 3 Esp. 250. (r) 1 Esp. 441.

(s) See Houliston v. Smyth, 3 Bing. (11 E. C. L. E.) 127; Bolton v. Prentice, 2 Str. 1214.

1 See also Sykes v. Halstead, 1 Sand. 483; Rutherford v. Coxe, 11 Mo. 347; Evans v. Fisher, 5 Gilm. 569; Fredd v. Eves, 4 Harring. 385; Pidgin v. Cram, 8 N. H. 350; Clement v. Mattison, 3 Rich. 93. And it is not necessary that actual bodily cruelty should be used to her, as it has been held (overruling Harwood v. Heffer, 3 Taunt. 421) that if a husband, by bringing another woman to live under his roof as a mistress, thereby renders his house unfit for the residence of his wife, he is bound to provide her with necessaries during the separation : Aldis v. Chapman, T. T. 50 Geo. III., cited 1 Selwyn's N. P. 298; Houliston v. Smyth, 3 Bing. (11 E. C. L. R.) 127; Blowers v. Sturtevant, 4 Den. 46. As in the case of an infant, however, the husband is not liable for money lent to enable her to procure necessaries: Walker v. Simpson, 7 W. & S. 83.-r. And see Snover v. Blair, 25 N. J. 94. If the husband secures to the wife a separate maintenance, and pays it, he is not liable: Calkins v. Long, 22 Barb. 97.-s.

In like manner, if the husband and wife mutually consent to live apart, she has a right to bind him by contracting for her reasonable and necessary expenses as long as the consent continues (x).1 But in those cases in which the wife, living apart from her husband, has authority to bind him by contracts for necessaries, if he allow and pay her a sufficient maintenance, the authority is gone, and her contracts, even for necessaries, will not bind him; the reason of which is, that the authority is given by law for the wife's protection, to save her from distress occasioned by her husband's misconduct; but if he make her a proper allowance, and pay it, there is no such danger; and then cessante ratione cessat lex;2 thus in Mizen v. Pick {y), the Court of Exchequer decided that it makes no difference that the tradesman, when he trusts the *wife, has no notice that her husband makes her an adequate allowance.3

(t) Read v. Legard, 6 Ex. 636; and see ante, p. *362.

(u) Richardson v. Du Bois, L. R. 5 Q. B. 51; 39 L. J. (Q. B.) 69.

(x) Hodgkinson v. Fletcher, 4 Camp. 70; Nurse v. Craig, 2 Bos. & P. N. R. 148.

(y) 3 M. & W. 481; Johnson v. Sumner, 27 L. J. (Ex.) 341; 3 H. & N. 261. See Jolly v. Rees, 15 C. B. (N. S.) (109 E. C. L. R.) 628; 33 L. J. (C. P.) 177; Biffin v. Bignell, 31 L. J. (Ex.) 189; 7 H. & N. 877.

1 And not only for necessaries furnished to herself, but to the children of the marriage, if he suffer them to remain with her: Rumney v. Keyes, 7 N, H. 571; Kimball v. Keyes, 11 Wend. 33-R. Walker v. Laighton, 31 N. H. 111.-s.

2 Cany v. Patton, 2 Ashm. 140; Baker v. Barney, 8 John3. 72; Fenner *, Lewis, 10 lb. 38; Mott v. Comstock, 8 Wend. 544; Kimball v. Keyes, 11 Bo. 33.


3 The same point had been so previously decided in this country in Cany v. Patton, 2 Ashm. 140.-R.

And if the wife when living separate has a sufficient maintenance, though not paid by her husband, supplies furnished to her cannot be necessaries for which he is liable (z). But where they separate by mutual consent, at the time of the separation making their own terms, then so long as they continue the separation those terms are binding on both; and if the terras are that the wife shall receive a specified income for maintenance and shall not apply for anything more, then she has a provision which she agrees to accept as sufficient. Therefore, at all events as long as the husband fulfils the terms on his part, the authority to pledge his credit for necessaries is gone, the adequacy of the income is immaterial, and the husband is no longer liable (a).

Thus, you see that if the wife be driven from home by the husband's misconduct, or if they separate by mutual consent, she carries with her an implied authority to pledge his credit so long as that separation continues, unless he pay her an allowance adequate to her support and his own means, or unless she has a provision which either is in fact sufficient, or which she has agreed to *accept as such. But, when the separation is occasioned neither by his misconduct nor consent, the case is otherwise. In such case she has no authority at all to pledge her husband's credit, and the person who contracts with her does so at his peril (b).1