M'Cutchen v. M'Gahay

11 Johns. 281

• Court: New York Supreme Court
• Decided: August 15, 1814
• Status: Published

Opinion

Piatt, J.

delivered the opinion of the court. Cohabitation is evidence of the husband’s assent to contracts made by his wife? for necessaries, and it can be repelled only by express notice of previous dissent, or notice not to trust her. If the husband tums away his wife, he gives her credit wherever she goes, and must pay for necessaries for her; but if she runs away from him, though not with an adulterer, he is not liable for any of her contracts. (Herrington v. Perrot, 2 Ld. Raym. 1006.) per Holt, Ch. J.

In Longworth V. Hockmore, (12 Mod. 144. 1 Ld.Raym. 444.) Lord Holt decided, that if the wife elopes, though the tradesman has no notice of the elopement, if he gives credit to the wife, even for necessaries, the husband is not liable; but if the wife elopes, without an adulterer, and afterwards offers to return, and the husband refuses to receive her, his liability for her contracts for necessaries is revived, from that time, notwithstanding a general notice not to trust her. (Child v. Hardiner, 2 Str. 875. See, also, Bolton v. Prentice, 2 Str. 1214. 3d. ed. by Nolan, and the note of the editor.)

In the case of Baker v. Barney, (6 Johns. Rep. 72.) the husband and wife parted by consent, and the husband promised a separate maintenance, but failed to fulfil that promise; and the court held him liable on her contract, for necessaries.

In the present case, the wife eloped without an adulterer, but she did not offer to return to her husband. Her proposition was made to the witness, and, never communicated to her husband, and when requested by the witness, she refused to go with him to her husband in order to a reconciliation. The plaintiff, therefore, is not entitled to recover.

To sustain such an action, would encourage disobedience and infidelity in the wife. The duties of the wife, while cohabiting with her husband, form the consideration of his liability for her necessaries. He is bound to provide for her, in his family ; and while he is guilty of no cruelty towards her, and is willing to provide her a home, and all necessaries there, he is not bound to furnish them elsewhere. All persons supplying the necessities of a married Aroman, separate from her husband, are bound to make inquiries as to the cause and circumstances of the separation, or they give credit at their peril. The judgment below must be affirmed.

Judgment affirmed.