
    
      B. J. Williams v. John Prince.
    
    It is the general rule that, if a wife voluntarily leave her husband, he is not liable for necessaries supplied by one who had notice. Medical services are, in no case, excepted from this rule.
    If a wife leaves her husband, and is received back by him, he does not become liable for necessaries supplied 10 her during her absence.
    
      Before Evans, J. at Chesterfield, Bpring Term, 1848.
    This was a sum. pro. tried by a jury, to recover the amount of a medical bill for services rendered a wife while separated from her husband. The facts were these. The defendant, in the spring of 1843, married a Mrs. McKinnion. He resided in Chesterfield, and she near Marlborough court house. He had one child and she had three. Prince resided with his wife in Marlborough until the January after the marriage, when they removed to his house in Chesterfield. Her children went with her, but remained only a short time. She was a woman of bad temper and he not of the best habits-was addicted to drinking. She was unwilling to go home with him and wept when they started. In May or early in June, she left him, being then pregnant. Of the cause of the separation, very little was known, or proved. They both told her sister, that she had bought butter from a waggoner, and had paid him in bacon. Prince disapproved of this, and took away the keys from her. She soon after left him, and returned to her family in Marlborough. Her health was not good, and Dr. Williams was sent for. He prescribed for her, and attended to her until her confinement in July. Dr. Williams knew she had left her husband, and said he considered her as somewhat to blame. The charges in the book were made against her and not against him. After the birth of the child, Prince came over to see it. He expressed no doubt of its being his, and at his instance, the child was named John Tyler Prince. Her brother, James E. David, interposed to produce a reconciliation. She at first objected, but it was finally agreed she should return, and she did so, about the 1st January, 1845. From this time, there were constant bickerings between them, and, according to the evidence, misconduct on both sides. It was proved by her sister, that she saw marks of a whip upon her person, and that Prince said he had been giving the strap to her nurse, and his wife had interposed and he had given her some; but other witnesses to whom she shewed marks of violence, doubted if they were real. Miss David, her sister, said, that when she was at Prince’s on a visit, two free ne-groes came there, were received kindly and treated with liquor and sugar. They remained till breakfast next day. They and Prince were up all night. This was in May, after the reconciliation. Other witnesses who had always lived very, near to Prince, and visited his house frequently, said he was a kind husband to both his wives — never saw any ill treatment — was very good natured when drinking. It was her conduct that caused the difference. She told Prince the child was not his, but that of one McK. It was not his child, and she did not wish him to maintain it.
    The case was submitted to the jury, on the following instructions :—
    1st. That during the cohabitation, the husband is bound to supply the wife with necessaries, and to that extent she may bind him by his implied assent.
    2d. If he drive her off, or treat her so that she cannot stay with him, he sends her off with credit to bind him for necessaries ; but if she leaves home without adequate cause, she cannot bind him to one having notice of the separation.
    
      As to whether there was adequate cause for her leaving him, the jury were told, that in the marriage state, one must govern when they could not agree, and it was the duty of the wife to submit. She had no right to exchange the bacon for butter, against his will.
    That the evidence of her misconduct whilst she lived with him after the account was contracted, and of his ill treatment of her, had nothing to do with the case, being subsequent to her leaving her husband; except they might infer from it what had been the conduct of the parties toward each other before. Of this description, is the fact referred to in the first ground in the notice of appeal. The receiving and ent'ertain-ing of free negroes, testified to by Miss David, was, according to her evidence, afterwards. It was contended, that what she had said about McK. and the child not being Prince’s, was wjtjj a vjew t0 prevent Prince from separating it from her, in the event of her leaving him again, which it was clear she intended to do.
    Several witnesses were examined by commission, who said they had never heard any imputation on her chastity; but all seemed to agree she was of a very bad temper; and one said he could not see how any man could live with her.
    The Circuit Judge said he did not see why any difference should be made in a medical man’s account and any other account, and therefore did not charge the jury that there was any thing peculiar in the nature of these services, which took it out of the general rule. The jury found for the defendant.
    The plaintiff appealed, on the grounds:
    1st. That the Court should have charged the jury, if they believed the defendant’s wife left his house because he had taken the keys away from her, and permitted free negroes to visit his house and carouse in the presence of his wife, and her daughters by her former husband, that this was sufficient cause for her separation: and that the defendant was thereby responsible for the demand on which the plaintiff sued.
    2d. Because the Court should have instructed the jury, that even if the wife had left the defendant without sufficient cause, still the defendant was liable for a physician’s bill for services rendered the wife, just before, at the time and immediately after her accouchment, which took place during such separation.
    3d. Because it appeared from the evidence, that the separation of the wife was not against the will and consent of the defendant — and the Court should have charged the jury, that if they believed, from the evidence, the wife was in a state of separation by his consent, then that the defendant was liable for necessaries furnished to the wife during such separation.
    4th. Because the verdict of the jury was contrary to the law and the evidence of the case.
    
      Dudley, for the motion.
    
      M’lver, contra.
   Frost, J.

delivered the opinion of the Court.

The instructions to the jury required by the first and third grounds of appeal, were not warranted by any evidence in the case. The improper conduct of the defendant which, according to the first ground, justified his wife in leaving him, did not occur until after her return from the temporary separation, during which the plaintiff’s services were rendered; and there was no evidence of the defendant’s consent, which can support the exception taken in the third ground.

The second ground does not controvert the general rule that, if a wife voluntarily leaves her husband, he is not liable for necessaries, supplied by one who had notice. But it is contended that the services rendered by the plaintiff, are excepted from the rule. No authority has been shewn for such an exception. Disease, in various forms, may as much endanger life and require the aid of a physician, as the occasion on which the plaintiff ministered, and so, the exception that is claimed, if admitted, must draw after it many others. Food and clothing and lodging are indispensable to life; and these must be admitted. Thus the reasoning which would support the exception, abates the rule.

Holt’s Rep. 103.

2 Com. 147.

13 J. R. 293. 11 J. R. 281.

A question has been made in the argument, whether, if a wife leaves her husband and is received back by him, he becomes liable for necessaries supplied to her during her absence. The only affirmative authority adduced, is a Nisi Prius dictum of Lord Holt, in Robinson v. Grenold. In that case, the husband discovered the wife to be a very lewd woman, and went away from her. She, after living, several years, with an adulterer, was received and entertained in the plaintiff’s house, who brought the action against her husband for her board and lodging. Holt, C. J. held that the lewdness of the wife, if she will cohabit with her husband, does not exonerate him from the obligation to maintain her; and that if he turn her away, on that account, he is chargeable for necessaries supplied to her. On this ground judgment was rendered for the plaintiff. But it is added by the reporter, the C. J. seemed to be of opinion that if a wife had run away and contracted debts, and afterwards the husband received her, that would make him liable to the debts; like the case where the wife elopes with an adulterer, though she, thereby, forfeits her dower, yet if the husband receive her again, she shall have her dower again. The analogy to dower, which is a benefit to accrue to the wife, after her return, would seem to limit the liability of the husband to debts contracted after he had received her back. The dictum appears to have been so understood by Chancellor Kent. In treating of the husband’s liability for necessaries supplied to the wife, on her voluntary separation, he says, — “ the husband is not liable unless he receives her back again,” — and cites the case of Robinson v. Grenold, and Williams v. McGahay, in which latter case, and in McCutchin v. McGahay, referred to in it, it was held that the husband is liable for necessaries, supplied from and after her return. And in Chitty on Contracts, 168, Robinson v. Grenold is cited to shew that the husband, “after reconciliation, is liable upon his wife’s contracts, entered into, after reconciliation, precisely to the extent to which he was responsible before her elopement.” The authority, thus restricted, is more consistent with the general principle from which it is derived. The power of the wife to charge her husband for necessaries is not conferred, by marriage, as a personal right. It depends on his presumed sanction and consent. An agency to prov^e necessai’ies is inferred from her superintendence of his But her agency is determined when she departs from him. He is bound to provide her with necessaries, at homeland not elsewhere. The credit of her husband for necessaries is taken away from her when she separates herself from him. Her agency does not diifer from that of a servant; and the husband should not be liable, on the return of his wife, for debts contracted during her absence, any more than goods taken up by a servant, from a tradesman, who had notice that he had left his master’s employment, should be charged to his master, when restored to his service. Emmett v. Norton; Manly v. Scott. If the wife offers to return, and her husband refuses to receive her, he is only liable for necessaries supplied after his refusal. Childs v. Hardiman. There is inconsistency in holding that the husband’s liability shall be greater if he receives back his wife, than if he rejects her offer to return; and besides, it would be an impediment to reconciliation.

Lead. Cases, 2 ra' ' 8 Car. & P. 506. 2 Smith’s

This Court is satisfied with the instructions of the Circuit Judge and with the verdict on the evidence.

The motion is dismissed.

Richardson, J. — Evans, J. — and Wardlaw, J. — concurred.

Motion refused.  