Hancock v. Merrick

64 Mass. 41

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1852
• Status: Published

Opinion

By the Court.

This is an action for the board of the defendant’s wife. The statement of facts shows that a decree of divorce from bed and board, for cruelty, on the libel of the wife against the defendant, her husband, was rightly awarded, and it is agreed that the same evidence would appear in this case. These facts are primd facie evidence of that conduct towards his wife, by the defendant, which rendered it inconsistent with her safety to stay; and which warranted her in leaving her husband’s house; and no evidence being offered to control and rebut this inference, it amounts to full proof of such cruelty.

Then, according to the rules of the common law, if a hus band, without justifiable cause, turns his wife out of his house, without support, or treats her with that degree of personal violence which amounts in law to cruelty, and she leaves in consequence, she so far carries with her the credit of her husband, for necessaries, that the person who supplies her with them may have an action therefor against the husband. In this case, the court are of opinion, that the plaintiff is entitled to recover for the board of the wife from the time she left her husband’s house, to the time of the decree of divorce. But the claim for the board of the child stands on a different footing, and we think for this the action cannot be maintained

Referred to cm auditor to assess damages.