BRICKELL, C. J.
1. The duty of the husband is to maintain the wife according to his station in life. If during ■ cohabitation she contracts debts for necessaries, without his express authority, he is chargeable with their payment. For ■ordinary purchases, assent on his part is presumed — but if ■dissent was shown, and an absolute necessity for the purchase ■existed, the husband’s liability would result from the duty of maintenance, the law imposes.—2 Kent, 132 ; Hughes v. Chadwick, 6 Ala. 651; Zeigler v. David, 23 Ala. 129.
2. Notwithstanding the statutes divesting the husband’s ■eommon law rights to the property of the wife, converting it into her separate estate, the duty of the husband to maintain the wife, and his liability for necessaries furnished her, is not lessened. The statutory separate estate is chargeable with them, not in exoneration of the husband’s liability, but ■ that they may be secured to the wife and her family, though the husband is without credit, or the ability to procure them. It is not the agency by which the contract is made, but the consideration, which created the liability of the husband at nommon law, and which now fixes the liability of the separate ■estate.—Durden v. McWilliams, 31 Ala. 438.
[320]*3203. What are necessaries with which the husband is chargeable, or “ articles of comfort and support of the household,”' from which the wife’s statutory estate is liable, is a question of fact rather than of law. Food, raiment, medicines, medical assistance, and habitation, comporting with social position, and the husband’s fortune, or the extent of the statutory estate, are within the liability.—Eskridge v. Ditmars, 51 Ala. 245. The representations of the wife when making the purchases is not material in determining whether the husband’s assent to her purchases shall be presumed, or a necessity for the purchase exists, authorizing it against his dissent. Nor are the representations of the husband, that the purchase is for the household, material in determining the liability of' the statutory estate. It is the thing purchased, its suitableness to supply the necessities of the household, considering the position of the family, the husband’s fortune, or the value of the statutory estate, that is material. We cannot perceive1 that any injury could have resulted to the appellants from the introduction of the husband’s representations, that he was purchasing for the use of the^family. They were immaterial, and the liability of the statutory estate was not’ deduced from them, but from the character of the articles purchased.
The charge given is involved and obscure. If, as a part of the charge indicates, it was intended to assert the statutory estate was chargeable, because the contract was made-by the husband as trustee, it would be erroneous. The husband as trustee, is without authority to create a charge on the wife’s estate. The liability of the estate can not be created merely by his act, admission, or promise. The consideration of the contract must be necessaries for the household, and to render such contract a charge on the estate, as-we have already said, it is not material, whether husband or wife is the active agent in making it. When the charge is considered as a whole, the proper construction of it, is, that the wife’s estate is liable for necessaries purchased by the husband, for the use of the family, though they may not have been used for that purpose. If there be error in the instruction, it lies in the assertion of the liability of the wife’s estate, though the articles purchased did not come to the use of the household,, and this seems to us erroneous.
The liability of the wife’s estate is strictly statutory, imposed by statute, and is clearly defined — it is for contracts “ for articles of comfort and support of the household.” So-far as the wife, and her rights of property are affected, the-[321]*321liability is involuntary, and compulsory. She is as incapable of dissenting from, as she is of assenting to the contract. The support of the household, its comfort and maintenance, corresponding to the degree and condition in life of the family, is the purpose of imposing on the wife’s estate a liability she is without agency in creating. The liability in its nature and character, and the purposes of its creation, and by the words of the statute, is analogous to the involuntary liability of the husband at common law, for necessaries supplied his family. For the wearing apparel of the husband, for no purchase or contract for his individual use, is the. liability imposed. It is only “ for articles, which, in their nature, are used in common, and which are necessaries of the household in its collective capacity, the separate estate of the wife is chargeable.”—Durden v. McWilliams, 31 Ala. 438. The articles may be necessaries, may be suitable to the degree and condition in life of the family, and may be purchased by husband or wife, yet if they are not used, or do not come to the use of the family, they are not articles of comfort and support of the household, and the liability of the wife’s estate does not arise: A sale of them to the husband may have been made, on his representation that they were intended for such use. But his representation, or engagement, can not involve in liability his wife’s estate. He is. disabled from making any contract, or incurring any which of itself fastens a liability on the estate. Freedom from liability for his debts or engagements, is one of the most important ends the statute was intended to accomplish. The creditor who relies on his representations, if disappointed, because the articles are not necessaries, the family being already supplied with such articles, or because not appropriated to the uses of the family, is subjected to no other or greater hardship than if he had, on any other misrepresentation, extended credit. If the mere contract of the husband, without regard to the necessities of the family, or an appropriation of the articles to the use of the family, could fasten a liability on the wife’s estate, he would be armed with the power of ruining it. The exemption from liability for his debts and engagements would be vain, if his power to charge it by contracts was unlimited. If not circumscribed to such contracts as really supply the necessities of the household; if the wife could, by her contracts for things in themselves necessaries, yet for which the support and comfort of the household may not demand purchases, involve the estate in liability, the estate could be embarrassed, the rights of the [322]*322husband as trustee defeated, and he shorn of all authority and discretion in the control and regulation of the domestic expenditures. It is not that articles purchased are of the kind the necessities of the family may require which fixes liability on the wife’s estate; concurring with that fact, must be the fact that they are appropriated to the uses of the family, or pass into the household to be so appropriated.
An element of the liability of the wife’s estate, is the liability of the husband alone at common law — the involuntary liability which the common law imposed on him for necessaries furnished his family — a liability the wife could create by her purchases, or a stranger by supplying the wants of the wife or family.—Durden v. McWilliams, supra; Punch & Duggan v. Walker, 34 Ala. 494. From cohabitation, the presumption is, the wife has authority to charge her husband by contracts for necessaries.
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BRICKELL, C. J.
1. The duty of the husband is to maintain the wife according to his station in life. If during ■ cohabitation she contracts debts for necessaries, without his express authority, he is chargeable with their payment. For ■ordinary purchases, assent on his part is presumed — but if ■dissent was shown, and an absolute necessity for the purchase ■existed, the husband’s liability would result from the duty of maintenance, the law imposes.—2 Kent, 132 ; Hughes v. Chadwick, 6 Ala. 651; Zeigler v. David, 23 Ala. 129.
2. Notwithstanding the statutes divesting the husband’s ■eommon law rights to the property of the wife, converting it into her separate estate, the duty of the husband to maintain the wife, and his liability for necessaries furnished her, is not lessened. The statutory separate estate is chargeable with them, not in exoneration of the husband’s liability, but ■ that they may be secured to the wife and her family, though the husband is without credit, or the ability to procure them. It is not the agency by which the contract is made, but the consideration, which created the liability of the husband at nommon law, and which now fixes the liability of the separate ■estate.—Durden v. McWilliams, 31 Ala. 438.
[320]*3203. What are necessaries with which the husband is chargeable, or “ articles of comfort and support of the household,”' from which the wife’s statutory estate is liable, is a question of fact rather than of law. Food, raiment, medicines, medical assistance, and habitation, comporting with social position, and the husband’s fortune, or the extent of the statutory estate, are within the liability.—Eskridge v. Ditmars, 51 Ala. 245. The representations of the wife when making the purchases is not material in determining whether the husband’s assent to her purchases shall be presumed, or a necessity for the purchase exists, authorizing it against his dissent. Nor are the representations of the husband, that the purchase is for the household, material in determining the liability of' the statutory estate. It is the thing purchased, its suitableness to supply the necessities of the household, considering the position of the family, the husband’s fortune, or the value of the statutory estate, that is material. We cannot perceive1 that any injury could have resulted to the appellants from the introduction of the husband’s representations, that he was purchasing for the use of the^family. They were immaterial, and the liability of the statutory estate was not’ deduced from them, but from the character of the articles purchased.
The charge given is involved and obscure. If, as a part of the charge indicates, it was intended to assert the statutory estate was chargeable, because the contract was made-by the husband as trustee, it would be erroneous. The husband as trustee, is without authority to create a charge on the wife’s estate. The liability of the estate can not be created merely by his act, admission, or promise. The consideration of the contract must be necessaries for the household, and to render such contract a charge on the estate, as-we have already said, it is not material, whether husband or wife is the active agent in making it. When the charge is considered as a whole, the proper construction of it, is, that the wife’s estate is liable for necessaries purchased by the husband, for the use of the family, though they may not have been used for that purpose. If there be error in the instruction, it lies in the assertion of the liability of the wife’s estate, though the articles purchased did not come to the use of the household,, and this seems to us erroneous.
The liability of the wife’s estate is strictly statutory, imposed by statute, and is clearly defined — it is for contracts “ for articles of comfort and support of the household.” So-far as the wife, and her rights of property are affected, the-[321]*321liability is involuntary, and compulsory. She is as incapable of dissenting from, as she is of assenting to the contract. The support of the household, its comfort and maintenance, corresponding to the degree and condition in life of the family, is the purpose of imposing on the wife’s estate a liability she is without agency in creating. The liability in its nature and character, and the purposes of its creation, and by the words of the statute, is analogous to the involuntary liability of the husband at common law, for necessaries supplied his family. For the wearing apparel of the husband, for no purchase or contract for his individual use, is the. liability imposed. It is only “ for articles, which, in their nature, are used in common, and which are necessaries of the household in its collective capacity, the separate estate of the wife is chargeable.”—Durden v. McWilliams, 31 Ala. 438. The articles may be necessaries, may be suitable to the degree and condition in life of the family, and may be purchased by husband or wife, yet if they are not used, or do not come to the use of the family, they are not articles of comfort and support of the household, and the liability of the wife’s estate does not arise: A sale of them to the husband may have been made, on his representation that they were intended for such use. But his representation, or engagement, can not involve in liability his wife’s estate. He is. disabled from making any contract, or incurring any which of itself fastens a liability on the estate. Freedom from liability for his debts or engagements, is one of the most important ends the statute was intended to accomplish. The creditor who relies on his representations, if disappointed, because the articles are not necessaries, the family being already supplied with such articles, or because not appropriated to the uses of the family, is subjected to no other or greater hardship than if he had, on any other misrepresentation, extended credit. If the mere contract of the husband, without regard to the necessities of the family, or an appropriation of the articles to the use of the family, could fasten a liability on the wife’s estate, he would be armed with the power of ruining it. The exemption from liability for his debts and engagements would be vain, if his power to charge it by contracts was unlimited. If not circumscribed to such contracts as really supply the necessities of the household; if the wife could, by her contracts for things in themselves necessaries, yet for which the support and comfort of the household may not demand purchases, involve the estate in liability, the estate could be embarrassed, the rights of the [322]*322husband as trustee defeated, and he shorn of all authority and discretion in the control and regulation of the domestic expenditures. It is not that articles purchased are of the kind the necessities of the family may require which fixes liability on the wife’s estate; concurring with that fact, must be the fact that they are appropriated to the uses of the family, or pass into the household to be so appropriated.
An element of the liability of the wife’s estate, is the liability of the husband alone at common law — the involuntary liability which the common law imposed on him for necessaries furnished his family — a liability the wife could create by her purchases, or a stranger by supplying the wants of the wife or family.—Durden v. McWilliams, supra; Punch & Duggan v. Walker, 34 Ala. 494. From cohabitation, the presumption is, the wife has authority to charge her husband by contracts for necessaries. The presumption is repelled, if it is shown the husband has adequately supplied the wife’s necessities.—2 Bright Hus. and Wife, 9, § 13; Seaton v. Benedict, 5 Bing. 28. So if husband and wife separate, and he secures to her maintenance according to his fortune, he is not responsible for necessaries supplied her by others. Baker v. Barney, 8 Johns. 72; Moot v. Cornstock, 8 Wend. 544; Kimball v. Keyes, 11 Wend. 33; Cary v. Patton, Ashmead, 110.
The prevention of family suffering from the neglect of the husband, is the foundation of the involuntary liability fast-<e¡aed on him. On a similar foundation rests the liability •Imposed by the statute on the wife’s estate. The meritorious-mess of the consideration of the contract — the contribution to •the support and comfort of the household, creates the liability. These do not exist, if the articles purchased are not applied to -the use of the family.
4. A purchase by the wife of necessaries, during cohabitation, is prima facie binding on the husband, and on him rests the onus of repelling the presumption.—2 Bright on Hus. and Wife, 11, § 29. A contract for necessaries, made by the husband or wife, is prima facie a charge on the wife’s estate, and the presumption must be repelled if the liability is denied. When it is shown the articles did not come to the uses of the family — were not, in fact, applied “ to the comfort and support of the household,” the presumption is repelled. Then, whether the contract is made by husband or wife, or by them jointly, it imposes no charge on the wife’s statutory .estate.
The Circuit Court erred in the charge given, and for the .terror, judgment must be reversed and the cause remanded.