Walker v. Simpson

*87The opinion of the Court was delivered by

The errors assigned in this case present two questions for consideration. First, was any evidence given on the trial of the cause in the court below, tending to prove that the wife of the plaintiff was authorized by him to receive the interest paid to her by the defendant on the bond in suit ? Secondly, if not, was the defendant justifiable in paying the same to her under the particular circumstances which seem from the evidence to have existed at the time ? With a strong desire to answer the first question in the affirmative, I have scanned the testimony, but must confess that I have been unable to discover any going to show that an authority was given by the plaintiff to his wife to receive the interest paid to her, or tending even to prove circumstances or facts from which such an authority might reasonably be inferred. On the contrary, it appears to me that the evidence given tends very strongly, if not conclusively, to prove the contrary. The only circumstance proven, not incompatible with such authority, is her having the possession of the bond. But as it was also proved that a previous disagreement and separation had taken place between the plaintiff and his wife, and that he was absent on an excursion to the State of Indiana at the time when she had the bond and the interest was paid to her on it, it may be readily conjectured that she in his absence found access to his papers, and possessed herself of the bond without his consent. The state of feeling on the part of the plaintiff towards his wife at the time, as shown by the evidence, would seem to repel all presumption of his having been disposed to place anything in her power, or to favour her in any way whatever. The court, therefore, erred in leaving it to the jury to decide the first question in the affirmative, without any evidence to warrant their doing so.

It remains now to consider the second question, whether the circumstances attending the wife at the time were such as to warrant or, justify the defendant in paying any money on the bond to her. It is alleged that the plaintiff turned his wife away without reasonable or just cause, and, for aught that was shown, without providing or furnishing her with the means of supporting herself; and this being the case, the defendant was justified in paying her the money to enable her to procure necessaries. The court below also appear to have taken up this notion, and instructed the jury “ that as there was no evidence that the husband had made any provision for her, and that if the jury believed the $120 of interest received by her on the bond were necessary for her support according to her condition, then the proof lay on the husband to show he had made provision for her according to his condition in life. That as he had not shown he made any provision for her or paid a cent for her, the jury would determine whether the payment was proper and necessary for her support according to *88the condition in life of the husband. If it was not necessary for her, it was for the husband to show it.” We are of opinion that the instruction thus given to the jury cannot be sustained. Though it be true that a husband is bound to provide his wife with necessaries suitable to her situation and his condition in life, and if he abandons her or turns her away without reasonable or just cause and without any provision for her maintenance, he becomes liable for her necessaries and sends credit with her to that extent; yet he is not liable for money lent to her, unless it be done at his request, which must be averred and shown. See 2 Kent's Com. 146, (4th ed.), and the authorities there referred to. So in regard to an infant, if money be lent to him and he lay it out in necessaries, he is not liable for it at law. Probart v. Krouth, (2 Esp. Rep. 472 n. per Btjbler, J.) It is only fon necessaries furnished to the infant that he can be made liable at law, and not for money lent or advanced, though he may have used it for the purpose of procuring necessaries; and so in the case of a husband, he can only be made liable at law for necessaries furnished to his wife, and not for moneys advanced or lent to her, notwithstanding she may have laid it out in procuring necessaries. But in the present case it was not shown, except by the declaration of the wife, which was really no evidence of the fact, that the plaintiff turned his wife away without cause, or that he turned her away at all, without which the defendant would not have been justified in furnishing her even with necessaries on the credit of the plaintiff, much less in paying her money on his account; for all persons supplying either food, lodging or raiment to a married woman living separate from her husband are bound to make inquiries, and they give credit at their peril. 2 Kent's Com. 146, and the cases there referred to. Neither was it shown to what use the money received by the wife was applied, whether to the procurement of necessaries or anything else; so that as far as the evidence given went, necessaries were not brought into view in this case at all. Had the defendant supplied the plaintiff’s wife with necessaries, instead of money, suitable to her situation and the condition of the plaintiff in life, and have shown this on the trial of the cause, together with the fact that the plaintiff had without sufficient cause compelled her to separate herself from him, he might have defalcated the price thereof from the amount of the bond. Or if he had shown that under such circumstances the money advanced by him to her had been applied to the payment of such necessaries purchased for her use, he might upon principles of equity have been permitted to have stood in the place of the creditor for necessaries, and to have defalcated the money advanced from the amount due on the bond. Harris v. Lee, (1 P. Wms. 483); Prec. in Ch. 502; 2 Eq. Cas. Ab. 135; Earle v. Peale, (1 Salk. 387); Clancy on Mar. Wom. 53; Marlow v. Pitfield, (1 P. Wms. 558). All this is required of the party who undertakes, to furnish the wife *89necessaries or money to pay for the same while in a state of separation from her husband. For although the husband is to blame for having caused the separation, yet he is only chargeable at law for necessaries supplied to his wife at her request, and not with money lent or advanced to her, because money cannot be considered necessaries, which consist of food, lodging and raiment. But where the money lent or advanced has been applied to the payment of necessaries furnished to her, equity will put the party lending or advancing the money in the place of the party who supplied the necessaries.

Judgment reversed, and venire de novo awarded.