Upham, J.,
delivered the opinion of the court.
It is not contended that the assistance rendered in this case was granted in such manner as to render the defendanl liable to the town of Rumney, under the statute providing for the support and maintainance of the poor. Such towns and persons as are holden liable for any of the provisions of that statute, are entitled to notice served on them prior to any suit, — signed by a majority 'of the selectmen or overseers of the poor, stating the sums expended for the relief of the pauper ; and no liability is imposed by that act on individuals for the support of poor relations, except in the line of father or grandfather, mother or grandmother, children or grandchildren. The statute contemplates no claim by the town against a husband for expenditures in behalf of his wife as a pauper. Any claim which a town may have against a husband for such support depends solely upon the provisions of the common law.
It will be seen, however, that the statute imposes a bur-[577]*577then of assistance and support on the individual unknown to the common law : such as the support of parents, grandparents and grand children. * Its object was, therefore, to compel an assistance beyond what the common law would enforce, if any compulsion were necessary in those cases where the ties of kindred would so readily prompt to such charity. It could not, therefore, have been the design of the act to supersede the ordinary obligations of the common law in those cases where no statute regulation was necessary ; and such would be its effect if towns, who are the constituted almoners of public charity, were deprived of resorting to its provisions to enforce their claims. -
No reason can be assigned why an individual should be holden liable at common law for all necessary supplies furnished by any citizen to his suffering wife or child, arising from his neglect to make such provision, while the town, whose especial duty it is to grant such relief, should be debarred from such remedy.
It is said the power of towns is only coextensive with their duties : That they have power to do all that the statute makes it their duty to do, and nothing more. This is undoubtedly the case ; but it is their duty to render assistance to those who are poor, and stand in need of relief; — and they have the benefit of the common law, with the additional requisitions of the statute, to compel those to aid them in their work of public charity who have the ability to do this, and on whom the natural obligation rests. , - , '
It is urged, that no request was made, on the part of the wife, for assistance, with a pledge of the husband’s credit, and that no implied contract could arise with the husband in such case. But in our view of the law, if the wife needed relief, or asked it, or if she merely needed it, though not in fact an applicant for charity, it would be the duty of the selectmen to render her assistance ; and all supplies and assistance furnished her would constitute- as binding a-elaim upon the .husband, piovided he was in other respects liable, [578]*578as if the assistance was rendered directly to himself on his own request. There is an abundant consideration for an implied promise necessarily resulting from the obligation of the husband’s relation, and the fact of assistance rendered. Ordinary credits to the wife, living apart from the husband, and not in a state of poverty and needing relief, but made expressly to herself, would come within a class of cases entirely different from the present.
But admitting the law to be as stated, it is said the case is still deficient of the necessary facts to bind the husband ; that there is no evidence of an abandonment of the wife by the husband, or of a separation by consent, or that the husband sent the wife away, — some one of which causes of separation is holden to be an essential pre-requisite to the liability of the husband.
It must be considered as settled, that the husband is bound only to make suitable provision for his wife at his own home: and if she wilfully abandons him she carries with her no credit of the husband, and can impose on him no liability ; but it admits of doubt on whom is the burthen of proof to show the cause of separation.
In the case, Mainwaring vs. Leslie, 2 Car. & Payne 507, it was ruled by chief justice Abbot that if a tradesman bring an action against a husband for goods furnished to his wife while she is living absent from her husband, it is for the tradesman to show that she was absent from some cause which would justify her absence ; and in Hindley vs. Westmeath, 6 Barn. & Cres. 200, the ensuing year, it was said, by the same justice, in which opinion the other judges concurred, that a person cannot by law sue a husband for the price of goods furnished to his wife, when living separate and apart from him, unless it can be shown that she was so ■living with his consent.
These cases would seem to impose the burthen of proof upon the plaintiff in the suit, and are the only authorities which we find expressly on this point, and in the second case [579]*579named this point was not in issue. The authority in Kent’s Com. 2 vol. p. 147, which has been cited for this purpose, does not necessarily sustain this position. It alleges that any person supplying the food, lodging and raiment, of a married woman, living separate from her husband, is bound to make enquiries, and that he gives credit at his peril. The substance of which law seems to be that the person making such provision is not entitled to notice of a want of liability on the part of the husband, and that any supplies furnished must be at the peril of such defence as he may set np. We are the more inclined to this construction, for the reason that in the cases so far as we have examined them, with the exception of that in 6th Barn. Sf Cress., the cause of separation, when it has been to the prejudice of the wife, has always been assigned by the husband in defence to the claim made against him.
In McCutchen vs. McGahay, 11 Johns. 281, the case finds that the defendant proved that his wife, without any misconduct on his part, left him, and refused to live with him. In Morris vs. Martin, 1 Str. 647, the defendant proved that his wife went away from him with an adulterer. In Hindley vs. Westmeath, 6 Barn. & Cress. 200, it was in evidence from the defendant, that the wife left against the defendant’s wishes, and continued to live apart from him.
In Child & al. vs. Hardyman, 2 Str. 875, on non as-sumpsit, the delivery of the articles was proved, and the defendant proved that the wife had been guilty of gross misconduct, and had eloped without fault on his part.
In Lidlow vs. Wilmot, 2 Stark. Rep. 86, the cause of separation was not assigned. The court say, “ it does not appear what the original cause of separation was:” but no exception was taken as to this point, and the plaintiff failed to recover, on the ground that the wife had funds of her own sufficient for her support, and this rebutted the idea of any implied promise.
In 2 Stark. Ev. 696, it is said that the plaintiff in an ac-[580]
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Upham, J.,
delivered the opinion of the court.
It is not contended that the assistance rendered in this case was granted in such manner as to render the defendanl liable to the town of Rumney, under the statute providing for the support and maintainance of the poor. Such towns and persons as are holden liable for any of the provisions of that statute, are entitled to notice served on them prior to any suit, — signed by a majority 'of the selectmen or overseers of the poor, stating the sums expended for the relief of the pauper ; and no liability is imposed by that act on individuals for the support of poor relations, except in the line of father or grandfather, mother or grandmother, children or grandchildren. The statute contemplates no claim by the town against a husband for expenditures in behalf of his wife as a pauper. Any claim which a town may have against a husband for such support depends solely upon the provisions of the common law.
It will be seen, however, that the statute imposes a bur-[577]*577then of assistance and support on the individual unknown to the common law : such as the support of parents, grandparents and grand children. * Its object was, therefore, to compel an assistance beyond what the common law would enforce, if any compulsion were necessary in those cases where the ties of kindred would so readily prompt to such charity. It could not, therefore, have been the design of the act to supersede the ordinary obligations of the common law in those cases where no statute regulation was necessary ; and such would be its effect if towns, who are the constituted almoners of public charity, were deprived of resorting to its provisions to enforce their claims. -
No reason can be assigned why an individual should be holden liable at common law for all necessary supplies furnished by any citizen to his suffering wife or child, arising from his neglect to make such provision, while the town, whose especial duty it is to grant such relief, should be debarred from such remedy.
It is said the power of towns is only coextensive with their duties : That they have power to do all that the statute makes it their duty to do, and nothing more. This is undoubtedly the case ; but it is their duty to render assistance to those who are poor, and stand in need of relief; — and they have the benefit of the common law, with the additional requisitions of the statute, to compel those to aid them in their work of public charity who have the ability to do this, and on whom the natural obligation rests. , - , '
It is urged, that no request was made, on the part of the wife, for assistance, with a pledge of the husband’s credit, and that no implied contract could arise with the husband in such case. But in our view of the law, if the wife needed relief, or asked it, or if she merely needed it, though not in fact an applicant for charity, it would be the duty of the selectmen to render her assistance ; and all supplies and assistance furnished her would constitute- as binding a-elaim upon the .husband, piovided he was in other respects liable, [578]*578as if the assistance was rendered directly to himself on his own request. There is an abundant consideration for an implied promise necessarily resulting from the obligation of the husband’s relation, and the fact of assistance rendered. Ordinary credits to the wife, living apart from the husband, and not in a state of poverty and needing relief, but made expressly to herself, would come within a class of cases entirely different from the present.
But admitting the law to be as stated, it is said the case is still deficient of the necessary facts to bind the husband ; that there is no evidence of an abandonment of the wife by the husband, or of a separation by consent, or that the husband sent the wife away, — some one of which causes of separation is holden to be an essential pre-requisite to the liability of the husband.
It must be considered as settled, that the husband is bound only to make suitable provision for his wife at his own home: and if she wilfully abandons him she carries with her no credit of the husband, and can impose on him no liability ; but it admits of doubt on whom is the burthen of proof to show the cause of separation.
In the case, Mainwaring vs. Leslie, 2 Car. & Payne 507, it was ruled by chief justice Abbot that if a tradesman bring an action against a husband for goods furnished to his wife while she is living absent from her husband, it is for the tradesman to show that she was absent from some cause which would justify her absence ; and in Hindley vs. Westmeath, 6 Barn. & Cres. 200, the ensuing year, it was said, by the same justice, in which opinion the other judges concurred, that a person cannot by law sue a husband for the price of goods furnished to his wife, when living separate and apart from him, unless it can be shown that she was so ■living with his consent.
These cases would seem to impose the burthen of proof upon the plaintiff in the suit, and are the only authorities which we find expressly on this point, and in the second case [579]*579named this point was not in issue. The authority in Kent’s Com. 2 vol. p. 147, which has been cited for this purpose, does not necessarily sustain this position. It alleges that any person supplying the food, lodging and raiment, of a married woman, living separate from her husband, is bound to make enquiries, and that he gives credit at his peril. The substance of which law seems to be that the person making such provision is not entitled to notice of a want of liability on the part of the husband, and that any supplies furnished must be at the peril of such defence as he may set np. We are the more inclined to this construction, for the reason that in the cases so far as we have examined them, with the exception of that in 6th Barn. Sf Cress., the cause of separation, when it has been to the prejudice of the wife, has always been assigned by the husband in defence to the claim made against him.
In McCutchen vs. McGahay, 11 Johns. 281, the case finds that the defendant proved that his wife, without any misconduct on his part, left him, and refused to live with him. In Morris vs. Martin, 1 Str. 647, the defendant proved that his wife went away from him with an adulterer. In Hindley vs. Westmeath, 6 Barn. & Cress. 200, it was in evidence from the defendant, that the wife left against the defendant’s wishes, and continued to live apart from him.
In Child & al. vs. Hardyman, 2 Str. 875, on non as-sumpsit, the delivery of the articles was proved, and the defendant proved that the wife had been guilty of gross misconduct, and had eloped without fault on his part.
In Lidlow vs. Wilmot, 2 Stark. Rep. 86, the cause of separation was not assigned. The court say, “ it does not appear what the original cause of separation was:” but no exception was taken as to this point, and the plaintiff failed to recover, on the ground that the wife had funds of her own sufficient for her support, and this rebutted the idea of any implied promise.
In 2 Stark. Ev. 696, it is said that the plaintiff in an ac-[580]*580tina for necessaries supplied to the wife, must prove the marriage, and also, where that is the fact, that the husband turned the wife away ; but he also says that mere proof of the marriage is -prima facie evidence of the husband’s liability, and it lies upon him to discharge himself by evidence. In Petersdorf’s Ab. 4 vol. 141, in a note by the editor as to evidence in actions against the husband, it is said, “ in order to support an action against the husband for articles supplied to his wife, the marriage must be proved, either by evidence of cohabitation, repute, confession, or otherwise; and 2nd, it must be proved that the goods supplied were necessaries according to the husband’s situation in life. To defeat this evidence, the defendant may prove that his wife eloped, and committed adultery, or that he allowed her a separate maintainance, or that she had funds of her own, adequate to her support.”
We are of opinion that proof of the marriage, and that the articles were necessaries suitable to the condition of the husband in life, is prima, facie evidence of the husband’s liability, and it rests upon him to rebut the presumption in law arising from the obligation of such relation, and expenditures.
Were the defendant released from payment of expenditures for the wife, he would still be liable for such expenses as were incurred in necessaries for the child. The case comes within that of Rawlins vs. Van Dyke, that if a husband, living in a state of separation from the wife, suffers his children to reside with their mother, he is liable for necessaries furnished them; for as a father, he has a right to the custody of his children, and may obtain possession of their persons by habeas corpus ; but where he does not assert that right, and suffers them to remain, with their mother, he thereby constitutes her as his agent, and authorizes her to contract debts for clothing and necessaries. 3 Esp. Rep. 252; 2 Kent’s Com. 193.
. The brevity with which this case was drawn, has occa-[581]*581sionecl some unnecessary difficulties in considering it. The facts as stated, leave little doubt that the abandonment was on the part of the husband, but this is not explicitly shown. Sufficient, however, appears to compel the defendant to set up some defence to the claim, and, as he does not. there must be
Judgment for the plaintiff.