Hemphill, Ch. J.
The difficulty, under the first assignment, is, to determine whether the action is brought solely upon the open account, or whether the note of the husband is not also relied on, as fixing his liability and also that of the wife, the consideration for the note being necessaries for the wife, her children and her negroes. The Court below was of opinion that the action was brought upon the open account alone; and consequently the demurrer, setting up specially the statute of limitation of two years, and barring, as it did, the largest portion of the account, was sustained. The view, taken by the District Court, is that which, on first inspection, most obviously presents itself; but, upon a more careful examination of the pleadings, it will appear that the written promise in the note of the husband, is relied upon as obligatory upon the parties defendant, and as entitling the plaintiffs to recovery.
The petition, after setting forth that the articles were necessaries for the wife, her children and her property, avers that the husband, in writing, acknowledged the justice of the demand, and promised payment on behalf of the wife. There is no averment, that by such promise he or his wife became liable; but that was not necessary. If the promise, under the facts forming its consideration, created a liability, and was such as would subject the separate estate of the wife, to its payment, there was no indispensible necessity to aver such lia[340]*340bility. That was a conclusion of law—the legal result of the facts as stated ; and its averment was not essential to support the action.
The articles being necessary for the wife, her family and property, create a liability as against the wife. The written promise fixes the liability of the husband, and the main question is, whether this promise-in writing, by the husband, involves the wife and her property, in any liability beyond that imposed by the nature itself of the consideration for which the note was given. And we are of opinion, that upon the facts alleged in the petition, the note of the husband was binding upon the wife, so far as, by action, to subject her property to its payment, and so far as the note, in its terms, was in accordance with the authority vested in the husband by law, as manager of the separate property of the wife.
The law confers on the husband this right of management. The purchase of supplies, on behalf of such property, and the incurring of expenses incident to its proper care, management and preservation, are acts legitimately within the scope of his powers, and appertain to the duties of his trust; and the liquidation of demands for necessaries, by notes of hand, on the usual terms, and for legal rates of interest, in case where this becomes necessary, or is advantageous to the estate, is an act within the purview of his rightful powers, and raises a just charge against the property. And when the husband, who has no separate property—and there is none belonging to the community—being intrusted, by law, with the management of the separate estate of the wife, and in the receipt of its rents, issues and profits, proceeds to purchase necessaries for his wife and family, such purchase is made with direct reference to reimbursement out of the separate property of the wife. That forms the only fund from which the family can be supported. The husband is the legal manager of that fund; and it must be liable for his contracts, whether they be verbal or written, when made in the judicious management of the property, and for articles necessary to the comfort and support [341]*341of its legitimate beneficiaries. But the wife is the owner of the property; and, for the protection of her interests, becomes a necessary party to suits on such contracts. She is the real party defendant. The liability of the husband is only nominal. The contracts were made by him in the exercise of his agency; and, if made for the legitimate purposes of his trust, they bind the property, and consequently and in effect, the wife, who is its owner. The fact, that the contract has been reduced to writing, constitutes of itself, no ground for its repudiation by the wife. This will frequently be necessary; and, in the case under consideration, it may have been a ground of indulgence for some months. Nor does the fact, that the written acknowledgment prolongs the term of limitation, impair its force, as against the wife. This is incidental to the assumption by the contract, of a written form, and, as before stated, this frequently becomes necessary or expedient.
The powers of the husband, as conferred, in this State, by law, over the separate property of the wife, are similar, in some respects, to those vested in the husband, under the rules of equity jurisprudence, when permitted and authorized by his wife, to receive the rents, issues and profits of estates limited to her sole and separate use. The estate becomes liable, on his contracts, for supplies purchased for its use and that of the family; and whether the contracts be open accounts or in writing, is immaterial, provided they are for the necessary use and support of either family or property. And I am not aware of any case, in which the fact that the contract was in writing, was relied upon as impairing or defeating its obligation.
In recurring to the allegations of the petition, to ascertain their legal effect, and with reference to the rights, powers and liabilities of the parties, as prescribed by law, and as stated in this opinion, we find it averred that the goods, &c., furnished, were necessaries for the wife, her children and negroes; that the husband was insolvent; and these averments state facts which raise a liability, as against the property of the wife. We then find it alleged, that the husband, in writing, acknow[342]*342ledged the justice of the demand, and, on behalf of the wife, promised payment; and this, being an act legitimately within the scope of his general power, as legal agent and manager, was binding upon the property ; and when suit was brought on such contract, the wife, as owner of the property, became a necessary party; and the contract being in writing, the limitation of two years was inapplicable, and there was error in sustaining this defence, as set up specially by demurrer.
Much of the difficulty, in determining whether the plaintiffs relied on the promise in the note of hand, might have been avoided, had the plaintiffs more distinctly averred such pro-' mise, as the principal foundation of their cause of action.— The execution of the note should have been set out in the first place. Its consideration should then have been shown, and that the articles were purchased by the husband, either under the general authority conferred on him by law; or if the suit was brought upon the statute, under special authority, either express or implied, from the wife.
The allegations of the petition, so far as they show, that the articles were necessaries, and that the husband was insolvent, are full and perspicuous ; the defect is, in not expressing the authority of the husband to act in the premises, and leaving that to be inferred, by implication, from the law, and in not showing, more unequivocally, that they intended to rely upon the written, as well as the verbal contract.
And here we may remark, that this action, in its allegations and especially with reference to the written contract, cannot foe supported under the 4th Section of the Act, regulating marital rights, of 1848. (Art.
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Hemphill, Ch. J.
The difficulty, under the first assignment, is, to determine whether the action is brought solely upon the open account, or whether the note of the husband is not also relied on, as fixing his liability and also that of the wife, the consideration for the note being necessaries for the wife, her children and her negroes. The Court below was of opinion that the action was brought upon the open account alone; and consequently the demurrer, setting up specially the statute of limitation of two years, and barring, as it did, the largest portion of the account, was sustained. The view, taken by the District Court, is that which, on first inspection, most obviously presents itself; but, upon a more careful examination of the pleadings, it will appear that the written promise in the note of the husband, is relied upon as obligatory upon the parties defendant, and as entitling the plaintiffs to recovery.
The petition, after setting forth that the articles were necessaries for the wife, her children and her property, avers that the husband, in writing, acknowledged the justice of the demand, and promised payment on behalf of the wife. There is no averment, that by such promise he or his wife became liable; but that was not necessary. If the promise, under the facts forming its consideration, created a liability, and was such as would subject the separate estate of the wife, to its payment, there was no indispensible necessity to aver such lia[340]*340bility. That was a conclusion of law—the legal result of the facts as stated ; and its averment was not essential to support the action.
The articles being necessary for the wife, her family and property, create a liability as against the wife. The written promise fixes the liability of the husband, and the main question is, whether this promise-in writing, by the husband, involves the wife and her property, in any liability beyond that imposed by the nature itself of the consideration for which the note was given. And we are of opinion, that upon the facts alleged in the petition, the note of the husband was binding upon the wife, so far as, by action, to subject her property to its payment, and so far as the note, in its terms, was in accordance with the authority vested in the husband by law, as manager of the separate property of the wife.
The law confers on the husband this right of management. The purchase of supplies, on behalf of such property, and the incurring of expenses incident to its proper care, management and preservation, are acts legitimately within the scope of his powers, and appertain to the duties of his trust; and the liquidation of demands for necessaries, by notes of hand, on the usual terms, and for legal rates of interest, in case where this becomes necessary, or is advantageous to the estate, is an act within the purview of his rightful powers, and raises a just charge against the property. And when the husband, who has no separate property—and there is none belonging to the community—being intrusted, by law, with the management of the separate estate of the wife, and in the receipt of its rents, issues and profits, proceeds to purchase necessaries for his wife and family, such purchase is made with direct reference to reimbursement out of the separate property of the wife. That forms the only fund from which the family can be supported. The husband is the legal manager of that fund; and it must be liable for his contracts, whether they be verbal or written, when made in the judicious management of the property, and for articles necessary to the comfort and support [341]*341of its legitimate beneficiaries. But the wife is the owner of the property; and, for the protection of her interests, becomes a necessary party to suits on such contracts. She is the real party defendant. The liability of the husband is only nominal. The contracts were made by him in the exercise of his agency; and, if made for the legitimate purposes of his trust, they bind the property, and consequently and in effect, the wife, who is its owner. The fact, that the contract has been reduced to writing, constitutes of itself, no ground for its repudiation by the wife. This will frequently be necessary; and, in the case under consideration, it may have been a ground of indulgence for some months. Nor does the fact, that the written acknowledgment prolongs the term of limitation, impair its force, as against the wife. This is incidental to the assumption by the contract, of a written form, and, as before stated, this frequently becomes necessary or expedient.
The powers of the husband, as conferred, in this State, by law, over the separate property of the wife, are similar, in some respects, to those vested in the husband, under the rules of equity jurisprudence, when permitted and authorized by his wife, to receive the rents, issues and profits of estates limited to her sole and separate use. The estate becomes liable, on his contracts, for supplies purchased for its use and that of the family; and whether the contracts be open accounts or in writing, is immaterial, provided they are for the necessary use and support of either family or property. And I am not aware of any case, in which the fact that the contract was in writing, was relied upon as impairing or defeating its obligation.
In recurring to the allegations of the petition, to ascertain their legal effect, and with reference to the rights, powers and liabilities of the parties, as prescribed by law, and as stated in this opinion, we find it averred that the goods, &c., furnished, were necessaries for the wife, her children and negroes; that the husband was insolvent; and these averments state facts which raise a liability, as against the property of the wife. We then find it alleged, that the husband, in writing, acknow[342]*342ledged the justice of the demand, and, on behalf of the wife, promised payment; and this, being an act legitimately within the scope of his general power, as legal agent and manager, was binding upon the property ; and when suit was brought on such contract, the wife, as owner of the property, became a necessary party; and the contract being in writing, the limitation of two years was inapplicable, and there was error in sustaining this defence, as set up specially by demurrer.
Much of the difficulty, in determining whether the plaintiffs relied on the promise in the note of hand, might have been avoided, had the plaintiffs more distinctly averred such pro-' mise, as the principal foundation of their cause of action.— The execution of the note should have been set out in the first place. Its consideration should then have been shown, and that the articles were purchased by the husband, either under the general authority conferred on him by law; or if the suit was brought upon the statute, under special authority, either express or implied, from the wife.
The allegations of the petition, so far as they show, that the articles were necessaries, and that the husband was insolvent, are full and perspicuous ; the defect is, in not expressing the authority of the husband to act in the premises, and leaving that to be inferred, by implication, from the law, and in not showing, more unequivocally, that they intended to rely upon the written, as well as the verbal contract.
And here we may remark, that this action, in its allegations and especially with reference to the written contract, cannot foe supported under the 4th Section of the Act, regulating marital rights, of 1848. (Art. 2423, Dig.) The authority to sue husband and wife, under that Section, is only for debts ■contracted by the wife or for expenses incurred by her. The -debts must not only be for necessaries furnished the wife and children, and for expenses incurred for the benefit of her separate property. They must not only be reasonable and proper, but they must be contracted or incurred by the wife herself ; and this must be so alleged, in a suit brought to subject [343]*343her property to the payment of such debts. If the husband has acted in making the purchases, it might be averred to have been done by her authority.
Where these or equivalent averments are not clearly made, the suit, if sustainable at all, must be supported on principles of equity jurisprudence, and not under the provisions of the statute. The acts of the husband, if he be the agent, must rely, for their support, upon the powers vested in him by law, and not upon any special authority, from the wife. It cannot be said that the husband’s authority under the law, will constitute him the agent of the wife, in the contracts contemplated by the 4th Section of the statute. These are to be made by herself. It is so expressed in the statute, and in language not susceptible of misconstruction ; and if not made by herself, they must be under her special or implied authority.
This is not the place to comment on that provision of law, which confers on the husband the sole management of the separate property of the wife. In all countries where the wife has separate property, and especially under the laws of Spain, Louisiana and the principles of equity jurisprudence, it is supposed that the wife, if she have separate property, has capacity to manage it for herself. If it be not limited to her separate use, or if it be contributed to support the expenses of the matrimony, the husband, as a general rule, has it under his control, and employs it to defray the charges of the matrimony. But our statute, with a single comprehensive proviso or exception, sweeps all such property, and in all cases, under the management of the husband. Sow, without questioning, in this place, how far that may comport with the constitutional grant of separate property to the wife, it is sufficient to say that such provision has no effect, to limit the powers of the wife, or give special authority to the husband, with reference to the debts and contracts contemplated by the 4th Section of the Act.
The capacity of the wife to make such contracts, is presumed [344]*344by the provision giving her authority. She is supposed to be capable of judging what articles are necessary for herself and children, and what expenses should be incurred for the benefit of her separate property ; and for these she is authorized to make contracts. The powers of the husband and of the wife, as arising under the different Sections of the statute, are distinct and not to be confounded together.
As this suit is not brought under the statute, the Court is under no obligation to render the judgment prescribed by the statute. Charges against the separate estate of the wife, should, as a general rule, be defrayed out of its rents, issues and profits ; and the corpus of the property should not be sacrificed, unless in a case of necessity. And in all cases where the suit is not brought under the statute, and where it appears from the evidence, that the husband is improvident, intemperate, or will probably misapply the proceeds of the wife’s property, the necessary orders should be made, to prevent this misapplication, and to have the debt satisfied in the manner most advantageous to the separate estate.
If all the evidence is embraced in the statement of facts, then the verdict is rendered without, and is totally unsupported by evidence. There is not a title of evidence to show that the articles were ever sold or delivered to the husband or wife, that they were necessary to the family or property of the wife, and that they were reasonable and proper supplies or expenses. All this must be established, and by satisfactory proof, before judgment can go against the property or its proceeds.
When this case comes on for trial, the Court is directed to reduce the note by the amount which was barred by the statute at the time of its execution, and also to reduce interest to the legal rate of eight per cent., to commence at the time the note was given. The husband transcended his authority, in attempting to revive demands that were barred, and in contracting for interest exceeding the legal rate.
There was no error in refusing the first and second instructions asked by the plaintiffs.
[345]*345It is true, that from the character of the items, the jury might be aided in arriving at a conclusion as to whether the articles furnished should be classed in the list of family necessaries, and reasonable and proper expenses or not; but this is only one of the circumstances which must be established, in order to determine whether they were necessary to the family and for the benefit of the property, and reasonable and proper with reference to the condition of the family and property. These facts must be established by the evidence of competent and intelligent witnesses, and not by the character of the items alone; or the admissions of the husband, as sought by the second instruction, for these must be wholly rejected. The creditor who looks to the separate property for payment, must judge, at his peril, whether the supplies he furnishes be necessaries or not; and this he must be prepared to prove, when he demands judgment against the estate.
Nor was there any error in the instruction, sought by defendant, that the note is no evidence of the account, unless connected with it by evidence, so as to show that the note related to the account. This was unquestionably true, as an abstract proposition; but it had no bearing on the case as presented to the jury. The Court had charged that the action was brought on the account; the note was not offered in evidence and it formed no- part of the case.
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.