
    Cutbush against Gilbert.
    In Error.
    
      Monday, December 28.
    UPON a writ of error to the Court of Common Pleas of Philadelphia county, the case appeared to be this : ■ .
    Evidence is sidered secóndai*y unless it carries with it an indication maL^ behind." are not eviT,be persons who gave the receipts should
    piaintiffhas with-'' mad^outSsucb a case as wiu entitle him to recover, the defendant gives testimony, the plaintiff may give evidence to rebut that of the defendant, although by doing sb, he supplies the defects-of his case as originally proved.
    
      James Cutbush, the plaintiff in error,
    brought an action against John Gilbert, the defendant in "error, before alderman Badger, to recover the sum of ninety dollars, for eighteen weeks board of the defendant’s wife. On the 16th Febtuary, 18Í6, the plaintiff obtained a judgment for the demanded. From this judgment the defendant appealed, , , , jo . “ 7 and on the 6th January, 1817, the case was tried in the Court of Common Pleas. The plaintiff proved, that the wife of the defendant, had boarded at his house eighteen weeks, and that the sum of five dollars per week, was. a sonable charge. The defendant then gave in. evidence, the following notice, published in Poulsoii’s paper of the 27th September,18l5.
    
    
      “ PUBLIC CAUTION.
    « Whereas several debts have been contracted on my account, without my knowledge, by different persons in this city; this is to caution the public, against trusting any person or persons on my account, without a written order from me for the same, as I am determined not to pay any debts or demands of that nature.
    (Signed) “ John Gilbert.”
    “ Philadelphia, 27th September.”
    This notice the plaintiff admitted he had seen. The defendant proved further, that at few-days after his wife went to board with the plaintiff, he called on him, and asked him how he expected to be paid for the board of his wife; to which the plaintiff replied, that if the defendant would not pay him, he must look to the defendant’s wife. Upon this, the defendant said he would pay his wife nothing but her monthly allowance. To shew that he and his wife lived separate and apart, and that he allowed her a separate maintenance, which was punctually paid, the defendant offered certain receipts, which were objected to by the counsel for the plaintiff, but admitted by the Court. The counsel for the plaintiff, to rebut the evidence given by the defendant, offered to prove that the defendant had deserted his wife, and had neglected to maintain her in a manner suitable to his degree. To this evidence, the counsel for the defendant objected, and the Court refused to receive it.
    
      Barclay and Browne, for the plaintiff in error.
    1. To entitle a man to claim an exemption from the pay- ' ment of his wife’s debts for necessaries, on the ground of separation, it is necessary that he should prove, that they were separated by a binding valid agreement, made with a person able to contract; that the separation was intended to be permament, not dependent, on the arbitrary will of the husband ; that the allowance was suitable to her degree, and that it has been regularly paid. The allowance agreed on, is hot conclusive as to the amount the wife is to receive, unless the husband’s circumstances continue the same. If his fortune increase or decrease, her allowance must be greater or smaller in proportion, and the jury must form an opinion according to his situation at the time the alleged necessaries were furnished. The only evidence offered by the defendant to establish these facts, was the receipts, which, although it is admitted they were signed by the persons whose names they bear, prove nothing. They do not prove a separation, for she might have received an allowance, in the nature of pin money, while living with her husbapd. . If they afford even a presumption, that the husband and wife lived apart, they do not shew that they did so, by virtue of an agreement binding in law. A man cannot enter into an agreement directly with his wife. 1 Bl. Com. .442. Co. Lift. 112. a. It was incumbent therefore on the defendant, to shew a contract entered into on'behalf of his wife, by.a third person, who was competent to contract; and certainly the receipts do not afford the smallest inference of this. If they shew any thing, they shew a contract by a husband immediately with his wife, which' is void in law. It is not contended, that the separation must be by deed, but the agreement must be of such a nature, as will secure to the wife a proper maintenance. Besides, the receipts were not the best evidence the nature of the case afforded. The agreement which must have existed if the separation was valid, ought in the first instance to have been produced. And admitting that the persons who signed the receipts were the agents of the wife, of which there was no evidence, they amount to- nothing more,. than declarations not under oath, of third persons who might have been sworn as witnesses. Baker v. Barney.
      
       Lockwood v. Thomas.
      
       Thompson v. Hervey.
      
    
    .2. The receipts having been received in evidence, it was ' error to refuse to permit the plaintiff to rebut them, by shewing a state of things, inconsistent with what they were supposed to prove. It is the duty of a husband not only to maintain his wife, but to maintain her in a manner correspondent with his condition in Jife. If an inference were to be drawn from the receipts as to the degree of the husband, the plaintiff had a right to shew by way of rebutter, what his degree actually was. And as the defendant had given evidence of a notice not,to trust his wife, it was competent to the plaintiff to shew, that he had deserted her, and was therefore bound to pay for the necessaries furnished to her in her distress, notwithstanding the notice ; for by the desertion he gave her a letter of credit upon the world. 1 Bac. Ab. 488. 
      ( Wils. edit.) Bolton v. Prentice.
      
       Robenson v. Grenholt.
      
       M'-Gahay v. Williams.
      
    
    
      Wilcocks and. C. J. Ingersoll, for the defendant in error.
    • The question is, not whether a man is bound to maintain his wife, but as to the propriety of the decision of the Court of Common Pleas, in receiving and rejecting evidence. The defence was, that Gilbert and his wife were separated by consent, and the only question below, was, and is in this Court, on the first point, whether the receipts were competent to go to the jury. Their effect was another thing which the jury were to determine, and with which the Court had nothing to do. A man is bound to provide his wife with necessaries, but necessaries do not embrace board and lodging out of his own house. With respect to these, husband and wife are identified ; and his obligation only extends to furnishing her with- meat, clothing, &c., in his own house. If she wishes to purchase necessaries, and he forbids a tradesman to sell them to her, he is not answerable. Todd v. Stokes.
      
       If however, they consent to, live asunder, the husband is not liable even for necessaries, provided he furnishes her with the means of supplying herself. It is not necessary that there should be a deed, to render the separation ‘valid; it may be proved by other evidence; and as reputation is sufficient to prove a marriage, so reputation'is also sufficient to prove a temporary suspension of marriage. The evidence given in this case, tended to prove a separation. The defendant therefore, was not liable, unless it appeared that he had turned her out of doors, which the plaintiff ought to have shewn in the first instance. So far from this having been proved, however, the receipts shew that she was furnished with an allowance which was punctually paid, and according td the case already cited of Baker v. Barney, that is sufficient to exempt the husband from responsibility. The plaintiff too, was not warned by the common reputation only of the defendant’s separation from his wife, not to trust her; he had seen the notice in the public papers, and he had been personally informed by her husband, that he would pay nothing for her beyond her allowance. This was going further than the husband was bound to do, in order to exonerate himself from liability; for if he merely proved a general reputation that he was separated, without shewing that it had come to the knowledge of the plaintiff, it would have been sufficient. It is the duty of a person who supplies a married woman separated from her husband, with necessaries, to enquire into her situation. If he fails to do so, he trusts her at his peril. M‘Cutchen v. MíGahay ,
      
       Cragg v. Bozuman.
      
    
    The evidénce offered by the plaintiff, was not with a view, to rebut the evidence given of separation and maintenance, but as proof of the inadequacy of the allowance, and of the desertion of the husband. The idea,of inadequacy is incompatible with desertion; for if the husband made any provision for his wife, he did not desert her. Whether that provision was, adequate or not, was a matter between the parties and their-friends, with which creditors had no concern.
    The only means by which they can recover from the husband, are by shewing, either that there was no separate maintenance, or that it was not regularly paid. In the present in- . stance, the evidence proved a separate maintenance regularly paid, as to'the amount of which the wife was concluded by her agreement. This x agreement- having been proved by evidence which the jury thought sufficient, evidence of previous quarrels, or of previous desertions, was irrelevant.
    
      
       8 Johns. 72.
    
    
      
       4 Purr. am.
      
    
    
      
       12 Jo/ms, 248*
    
    
      
       2 Sir. 1214.
    
    
      
       1 Salh. 119.
    
    
      
      
        \2 Johns.Q93.
      
    
    
      
      
         1 hd. Raym, 444.
    
    
      
      
         11 Johns. 281,
    
    
      
       6 Mod. 147.
    
   The opinion of the Court was delivered by

Gibson J.

~ The plaintiff proved, that he had boarded and lodged the defendants wife, for eighteen weeks, and there rested his cause. The defendant proved a personal notice not to trust her on his account, and also, the publication of a notice in the gazette, which the plaintiff" acknowledged he had seen. The defendant then offered in evidence certain receipts, which referred to some previous agreement of separation, and for a monthly allowance of twenty-five dollars to the wife, and which were said to have been signed by persons who were authorised by the wife to receive the allowance. These were objected to, but admitted to go' to the jury. The substantial objection-is, not that they, were inadmissible before a written agreement of separation was produced, or the usual ground laid for the admission of secondary evidence. Evidence is not considered secondary, where It carries with it no indication, that better remains behind j and here it did not appear that there was in fact, any written ágreement. Bút the evidence was incompetent on another ground, to ■ prove the payment, or raise an inference of any other fact from it; because, a man’s receipt is not evidence to prove a payment against a third person; it is evidence against himself, but against another, his oath is better, and ought to be had where it is required. Here, the object was, to prove a payment, in pursuance of an agreement for an allowance for separate maintenance, which was a very material part of the defence. Those persons, therefore, who gave the receipts, should have been called.

The second, error assigned, is, that after the admission of all the defendant’s evidence, the Court refused to permit the plaintiff to rebut it, by shewing the defendant had deserted his wife, and neglected to provide for her in a manner suitable to her degree. The counsel endeavour to support , the decision of the Court, by saying the evidence was not rebutting, but direct, and therefore inadmissible at the stage at which it was offered; because, as it is said, the plaintiff could not have recovered on the case he at first made out, it being necessary, in addition, to shew that the defendant had turned his wife out of doors. Without professing to decide whether the husband is, in any case, liable for boarding and necessaries, furnished the wife while living separate from him, when he has not refused to. provide for her at home, I am of opinion, the evidence went directly to rebut the suggestion of a separate agreement. A separation by compulsion is quite a different thing from a separation by the agreement of the parties. It is immaterial, therefore, whether the plaintiff could have recovered on his direct evidence or not. If the defendant had thought he could not, he might have put his defence on that ground; but having given evidence, which he now says was unnecessary, he shall not say, the plaintiff had no right to produce counter evidence, because he át the same time necessarily cured an original defect in the case on which he had reste.d before the jury. The judgment is reversed. -

Judgment reversed, and a venire facias de novo awarded.  