
    Cunningham against Irwin.
    In Error.
    
      Monday, September 17.
    
    Common Pleas of AUégKeny ERROR to the Court of county.
    a rule for taking depositions on reasonable notice ¡jSest°he prac-°h tice of the Court.
    in. the Court below by Sarah This was an action brought 
      Irwin against Nicholas Cunningham., to recover for- necess'aries furnished to Mary Magee, who was alleged to-be the' wife .of the said Nicholas Cunningham. It appeared in evidenpe on the trial that Nicholas Cunningham and Mary Magee had lived separate from each other for twelve or thirteen years in Pittsburg, after their arrival from Ireland without any suspicion' being entertained that "they were husband and wife. Nicholas Cunningham was engaged in business and represented to be in good circumstances. Mary Magee lived at different places; and at times maintained herself by her labour, but in consequence of sickness she was not always able to do so. In the summer of 1817$ she went to board with the plaintiff Sarah Irwin. Evidence was given to prove the marriage in Ireland, and also that in the summer of 1817, Mary Magee filed a libel in the Co.urt of Common Pleas of Allegheney county, against Nicholas Cunningham for a divorce from bed and board, and for alimony, the record of which was produced-.
    
      In 'a suit for necessaries found fojr the defendant’s wife, after evidence given of the marriage, of their living apart without suspicion that they were man and wife, and of a libel by the wife for a divorce, evidence is admissible on behalf of the plaintiff to shew that the wife had solicited the husband 4.0 receive her again as his wife, and had offered to return and live with him as such, and he refused to receive her.
    And this evidence is admissible whether the offer were made before or after the libel fora divorces for if after, it will be presumed that the offer embraced an intention to discontinue the libel.
    # In such suit the plaintiff may give evidence to prove the health, general conduct, and means of living of the wife, during the separation and prior tothe time when the plaintiff furnished her with necessaries. . ' .
    The husband is not exempted from liability for necessaries furnished to his wife, pending a libel by her against him for a divorce.
    Tlie husband is liable for necessaries furnished his wife during her separation from him, though it was by her agreement, if she offer to return, and he refuses to receive her, and has furnished no ■means for her subsistence.
    Such necessaries must in such ca§e be agreeable to the rank and condition of the husband : and the husband is liable not mereh for the difference between the sum'earned by her labour, and the amo.unt of her necessary expenses ^,he must support her himself or pay those who do support her in a reasonable manner.
    
      ' On the trial, the .plaintiff offered in evidence the depositions of John Magee and Patrick Magee taken ex parte under a rule of Court, ón six days notice. The defendant objected to.these- depositions, because the six days notice was not specified in the rule of Court,, but it -was entered for taking ■the depositions on reasonable notice. The Court however admitted the depositions, ánd the defendant excepted.
    The plaintiff also offered the deposition of Samuel Douglas, that to the best of his recollection and belief, some time early in the year 1818, Sarah Irwin, Widow, and Mary Magee, both of Pittsburgh, called upon him to act,., as the attorney and Counsel of the said Mary, and to' procure, for her some arrangement or agreement to be made between her and her alleged husband Nicholas Cunningham, merchant of the same place. The deponent, to'the'best'of his recollection,- asked her, what arrangement she wished made, or what sum of. money she would take to remain as she was, and live -apart from Nicholas Cunningham. To which she replied, that money was not her object, and that the only thing she wanted was to go and live with him, and be treated as his wife, and that she would on her part conduct herself towards him as she had done before-their separation. Some time shortly afterwards, deponent waited on Mr. Cunningham, and made known to him the purpose of waiting on him. He said that for her to live with him, was out of the question, that her' claim was very stale, and that he was not bound either in justice or law, to take her or maintain her.-; but rather than have himself exposed in Court and publicly by any suit, he would give her some money ; but if he did, she must leave the country; and that whatever money he would agree to give should be in full of every demand or claim she had against him. That he made this offer for the purpose of preventing exposure and future trouble, and expense. The deponent had frequent interviews with him, and the sum he at last offered, was to the best of deponents recollection, one thousand dollars, which should be received by trustees, for her use, or in some such way as his.counsel Mr. Baldwin would think him safe' to act, and by which a final determination would be put to her claim, which was then pending in the Common Pleas of Allegheny county, and brought by William Foster and deponent, by. a libel or petition from her for a divorce and alimony. He at some interview between him and deponent, stated, that the said Mrs. Irwin had a claim- against him for boarding the said Mary, but that he had never in any manner agreed with Mrs. Irwin for her boarding, and that whatever sum of money he would give should as already stated, be received in full of all claims or demands on account of the said Mary Magee.
    
    This deposition was objected to by ..the defendant, but admitted by the Court, who sealed another bill of exceptions.
    The plaintiff also offered in evidence, the testimony of James Riddle, to prove, that in the summer of 1817, before the suit for a divorce was commenced, Mary Magee informed him of her situation : desired him to call on Nicholas Cunningham, and request him to take "her'back as his wife ;- and solicited him as Cunningham’s friend, to speak to'him for her. That he did call on Cunningham to effect a reconciliation but he refused to accede to it. This evidence was also objected to by the defendant, and admitted by the Court, and a third bill of exceptions was taken.
    
      The plaintiff .further offered in evidence, the testimony of ]VXrs, Dunning, to shew that Mary Magee was infirm in health before she went to reside with Mrs. Irwin; that she was irf a destitute condition, and that her character and conduct were good. To this evidence- the defendant objected, but the Court admitted it, and the defendant tendered a fourth bill of exceptions.
    Exception was also taken to certain parts of the charge of the Court, which was' as. follows : '
    If yoti shall be of opinion that there was a marriage subsisting at the time the boarding was furnished, then arises the s.ecoiid question for your1 consideration. Has the plaintiff .made out by proof the other fa'cts necessary to render the defendant liable to her in this action ? ..
    Generally speaking, the husband, during coverture, is liable for necessaries furnished to his wife. This .liability depends upon other circumstances, than the mere marriage, and is subject to certain restrictions and exceptions.
    ■ These necessaries shotild be suitable to the rank, and estate ■of the husband, in other tvdrds according to the condition of the parties in life. Clothing, medicine, boarding • and lodging, come under the meaning of necessaries'.
    
    Whilst the husband, and the wife live together,- that is, during cohabitation, although the conduct of the wife may be lewd and criminal, the husband is bound to fnd her in necessaries. If he’neglects or refuses to do so, a contract by her fo.r that -purpose would be; binding on him ; because his assent and promise-are presumed- from the fact of cohabitation. The domestic duties ■ of the wife, the comforts and happiness arising from Her society, form the consideration for this liability.
    ■ If the wife j*oes oft with an adulterer, the husband is hot liable, although the tradesman may have trusted her for ne-1 cessaries without any knowledge of such criminality. And further, if she quit, or sepárate herself from her husband, although not with an adulterer, and without criminality, the husband .is notTiable for her debts, because the consideration for such liability has ceased, and because all persons supplying necessaries to a married woman, living separate and apart from her husband áúd family, are bound to make inquiry as to the cause and circumstances of the separation; or they give credit at their peril; and if' they do'give credit, they must take care, and it will be incumbent on them to make out and prove the facts, necessary to render the husband liable to an action. •
    If the husband and wife agree to separate, and he gives and pays her a separate maintenance, he is not liable for her contracts for necessaries. The person who trusts her does it at his peril, and without the liability of the husband to an action.
    Again, if the wife goes off voluntarily, and of her own accord remains separate from the husband ; and particularly if under such circumstances, she labours for and supports herself under the character of, a single woman, the husband is not liable for her debts for. necessaries..
    Again, when they consent to live separate, and she by her labour earns a livelihood, the husband is not chargeable ; and this is particularly the case, when there is reasonable evidence that the plaintiff had a knowledge of these facts.
    It is the. marriage, the cohabitation, the reputation of husband and wife, which gain with the public the credit for the wife.
    I have now mentioned some of the exceptions to the general rule,' that husbands are liable for the necessaries of the wife.
    It is then to be inquired, in what, case is the husband liable, when he and his wife live separate from each other..
    If there has been a previous cohabitation, and of course the reputation of husband and wife, and he turns her off, without any act of criminality, he’is liable for debts which she may contract for such necessaries as .1 have mentioned. : By the previous cohabitation and his turning her off, he gives her a general credit for necessaries; .and he, being the wrong, doer, cannot prevent her from being supplied with proper articles for her support. ' : ' ■
    It is the same, if the husband by ill treatment, and cruelty renders the situation of the wife unsafe under his roof. This will be tantamount to turning her out pf the house, arid giving her a general credit. "
    Again, if husband and wife have been living separate, without any adulterous behaviour on the part of the wife, and she makes a fair and sincere, offer to return and cohabit, and he refuses to receive her, he becomes liable for necessaries furnished her from the time such offer to return was made. Of cour'se the law means that this offer should be made in sincerity and truth, and not for any unfair purpose j not for.the purpose or with the intent of laying a foundation for any suit for herself or for others ; or as matter of form, or with the design of being better enabled to carry on any libel, for a divorce or any judicial proceeding. ■
    If you infer cohabitation from the facts of their leaving Ireland together, and crossing the Atlantic together in the same ship, although that cohabitation may have terminated when they left the vessel, and may not have existed after they set foot on shore in this country, yet, if the wife after-wards,, in sincerity and truth,, offers to return and. cohabit, .and,is rejected by. the husband, he would be liable from that ■time for her necessaries. And this would be the case whether he had forced her away, or .induced her to depart by some interested design or false practices ; or whether they .had separated by consent for some temporary purpose, such as concealing their marriage, or avoiding the. displeasure of friends, and no separate .maintenance .was allowed'and paid.
    ' We have spoken to you, and you have heard much said of the'cohabitation of man and wife. Upon this subject, it seems to become necessary to say a word or two; by speaking of it as we have done in this particular kind of action, we do not mean to tell you, that it is necessary to give validity to a marriage, or indispensably necessary to secure certain conjugal rights to the wife. .This, you-will observe, is not an action by' the wife herself to. recover any of her marriage rights, but it is an action by a third''person, a stranger, to Recover money from the husband, on the ground that she has been induced, under particular circumstances to credit the wife. In such a case, it becomes material to inquire about the cohabitation and reputation of man and wife ; because these are the facts, connected with other acts of the husband, such as turning her off, &c., which render the defendant liable. ■ .
    
      Note how do these principles of. law bear upon the case before us ? I take it they come to this position. If you believe there was a marriage, and that theparties cohabited, and lived 
      
      together, and that the defendant turned off his wife, he is Izable for such necessaries as have been furnished. Or if you believe that the wife in this case separated herself from her husband xvithout criminality, and had made-a true, sincere offer to return and cohabit, he is liable from the time of such offer to return. .. -, .
    It will be for you to decide ; but viewing the facts as we do, no such cohabitation and expulsion appear to be proved as will render the defendant liable. Then how is the case, as to the offer to return? You will reflect whether it was made, when made, and in what spirit, and under what circumstances ? (Here the Court introduced and spoke of.the testimonies of Mr.. Douglas, Judge Riddle, and the circumstance of the libel for the divorce having been signed by the plaintiff, as the next friend of Mary Magee.)
    
    There is another point which arises out of this case, and which is based on the following principle of law.
    When the husband turns away or leaves his wife, a general notice or prohibition in the' newspapers against persons trusting her, will not avail him, or save him from being liable for her contracts for necessaries. But although in such case, he may be responsible..for her- support and for necessaries, yet he may give notice to any particular person, not to trust her. Otherwise the wife might be putting the husband in the ppwer of his enemy;
    Now if the. plaintiff took Mary Magee into. her. house, with a notice from the defendant not to take her, nor to trust her, or with a notice from him, that he would not pay, that she would be obliged to resort to a suit, that he looked upon her as his enemy and persecutor; she does it at her own peril, and cannot resort to him.
    
      And lastly, if the husband and wife have never cohabited in this country, and agreed for some private reasons, best known to themselves, to live apart as single persons, and con- ■ ceal their marriage; say too, that such concealment proceeded from a fear of displeasing their friends, any one xvho trusts her, does it at his peril, and the husband is not liable.
    
    Was there an agreement to conceal the marriage in the present casé ? Under what circumstances and for what rea- ■ son did it exist? These facts and the others arising out of this case, you will decide according to your own inferences an(j conclusions from the testimony. ' .
    
      If the plaintiff is entitled to recover, you will also decide "whether the boarding was according to the rank and\ condition of the husband in life, and what sum the plaintiff is reasonably entitledto have for the same.'
    
    
      And the Court further chargedthe jury, in answer to certain , propositions submitted by the counsel for the plaintiff and defendant, that the application for a divorce would not ■of its'elf rélieve the husband from his liability for necessaries ; that the parties continue to be husband and wife up to. the time of the final decree, dissolving the bands of matrimony ; that she might offer to return and cohabit, pending the libel for the divorce, and such offer, if made in sincerity and truth, and with a real desire to return, would be'available as under other circumstances,'to charge him for her necessaries; and that it was for the jury to decide, upon the nature of this fact, the offer to return, with what intent and .sincerity it was made.
    
    
      Baldwin, for the plaintiff in error.
    1. The depositions of John and Patrick Magee, were improperly received in evidence. By the 53d rule of the Court of Common Pleas of Allegheny county, a rule to take depositions, is of course, and may be entered by either party in the prothonotary’s office,- ‘«stipulating a reasonable notice to the adverse party.” This reasonable time ought to-be expressed in the rule at the time it is entered, the number of days should be-specified; this is obviously the intention of the general rule. It is true the prothonotary had entered many rules in the way the rule was entered in the present case: but the practice has not been uniform: - indeed the practicé of the office was, in general, loose, and the ruis ought now to receive a‘ construction conformable to its intention, and calculated to. guard-against inconvenience and surprise. If-the number of days may be left to the party’s choice at the time he gives notice, he may manage it so as to' have the depositions-taken in the absence of'the counsel acquainted with the cause, and alone competent to conduct the cross examination. In fact, these .depositions were taken in the absence of the defendant’s counsel; The manner of taking ex parte depositions is of great importance, and should be regulated by certain and precise rules.
    2. The deposition of Samuel Douglas, ought not to have been received. It went to prove that the defendant’s wife, who went.by the name of Mary Magee, offered to- return to her husband, while a libel for a. divorce, filed by her, was proceeding. This offer was altogether irrelevant. It was after the .time when she went to Mrs. Irwin. It was inconsistent with the libel for a divorce, which she made no offer to withdraw,or discontinue. , He cited the Act of Assembly of the 26th of February, 1817, (Purd. Dig. 130,) and 1 Yeates, 78.
    3. The evidence ,óf James Riddle should have been rejected. The offer proved by him was not an absolute offer, such as should have been received in evidence.
    4. Mrs. Dunning was offered to prove nothing material. The situation and health of Mary Magee, previous to her coming to live with Mrs. Irwin, .were of no importance.
    
      5. The charge of the Court was exceptionable. The Court ought to have charged, that the offer of the wife to return to her husband, was inconsistent with her suit for adivófce. They ought also to have charged, that the husband was not Hablé during the pendency of that suit. The Court erred in saying, ■that if the. wife made a sincere offer to return, the defendant was liable. Another thing was requisite, namely, that a necessity existed for furnishing board, &c., to the wife. Perhaps the wife had means of her own for support, and.in that case, the hysband was not liable for necessaries furnished to her: at all events, M. Magee wa§ entitled to be supported only according to the rank she had lived in, and not as the wife of the defendant. • ’>
    
      Hopbins, contra.
    1. For a number of years past, the practice of the office has been to enter rules for taking depositions'in, the manner the rule was entered in the present case. The party taking the rule gives notice at his peril, and if the time he allows is unreasonable, he loses his depositions. The same witnesses who were examined on the rule in this case, were carefully examined in the suit for a divorce.
    
      2. As to the deposition of Mr. Douglas. The marriage jja(j been proved, before this deposition was offered. The objection is, that the- offer to return was not made by,M. Ma-till after the commencement of the proceedings in the libel suit.. But if the fact ;be so, the offer to return is impliedly an offer tó discontinue the libel for a divorce, the ground of which was a malicious desertion by the husband.
    3. The evidence of Mr. Riddle was excepted to on the same ground as Mr. Douglas’s' deposition, and the same answer may be given. ‘ > , ■
    • 4. Mrs. Dunning’s testimony was proper, because it went to shew the, state of M. Magee’s health', her inability to. earn a living, and her poverty.
    , 5. As to the charge of the Court, it was very favourable to the defendant. If the wife even elope, and offer to return, and the husband refuse to receive her, he becomes liable for necessaries furnished her. 12 Johns. 295. So where there is a separation by agreement, and separate main-, tenance, if the maintenance is not paid, the husband is liable for necessaries.
   The opinion of the Court was delivered by

Tilghman, C. J.

This is an afction brought by Sarah Irwin, the plaintiff below, against Nicholas Cunningham, for board arid necessaries furnished by the plaintiff to,-Mary, the wife of the said Nicholas. ■ On the trial.of the cause, several exceptions were taken by the defendant’s counsel, to the opinion of the Court, on points of evidence, and an exception also to the charge of the Court.

1. The first exception was, to the admission of the depositions'of John and Patrick Magee, taken ex parte, under a rule of Court, on six days notice. The, objection is, that the six days notice were not specified in t-he rule of Court. The rule was entered for taking the depositions;??? reasonable notice, and thdn the plaintiff gave notice to the defendant, that the depositions would be taken at a certain time and place, .(allowing six days.) .As the same point arose, in the case of M'Connell v. M'Coy, which was decided this term, it will be sufficient to say, that under that decision these depositions were good evidence. I will barely add, that this Court was induced to admit the depositions, for two-reasons. One, that the general practice of the Court of Common Pleas for several years past, has been, to enter 'rules for taking depositions, in the manner this rule was entered ; the other, that the party to whom the notice is given, is not injured by it; because he' receives actual notice of the time and place of taking the deposition, and if the time is unreasonably short, he may avail himself of that circumstance, on a motion to suppress the deposition, or perhaps by application to a Judge out of Court, to have the time enlarged, on satisfying him that it is unreasonable.

2. The next exception was to the admission of the deposition of Samuel Douglas ; because the matter contained in it was irrelevant. To comprehend the force of this objection, it will be necessary to consider the nature of this action, and some-of the circumstances attending the plaintiff’s case. I have said before, that the ground of the action, was, board and necessaries found for the defendant’s wife. Before Douglas’s deposition was offered, evidence had been given to prove the defendant’s marriage. Evidence had also been given of a libel by the wife for a divorce, on account of th,e husband’s desertion of her. It was a very singular case. The defendant and his wife, (if she. was his wife,) came from Ireland many years before the commencement of the suit" for divorce, and had lived separately in Pittsburg, without the least suspicion of their marriage. Consequently it was incumbent on the plaintiff, to shew that under such mysterious circumstances,.the defendant was liable for necessaries furnished to his wife; and particularly that the wife was willing and had offered to live with him, for there was no proof that he ever used her ill, or turned her out of his house. The deposition, of Douglas went- to prove, that he- was employed by Mrs. Cunningham, (who was known by the name of Mary Magee,) as counsel, and informed by her, that the only thing she wanted, was “ to go and live with her husband, and be treated as his wife, and that she would, on Her part, conduct herself towards him as she had done before their separation/”. and that shortly afterwards, he’ waited on the defendant, and informed him of Mrs. Cunningham’s wish, to live with him, who answered that her living with him was out of the question, that her claim was a stale one, that he was not bound in law, or justice, to take her, or maintain her, but rather than have himself exposed publicly by ,a suit in Court, he1 would give her a sum of money provided she would leave the country. This evidence,was certainly very material, as it tended to remove a main obstacle in the way or the plaintiff’s case, and to explain the doubt, whether the living separately was the fault of the husband or the wife. It is not quite certain, whether Mrs. Cunningham’s conversation with Mr. Douglas, and,his communication to the defendant, was before, or after, the filing of the libel for- a div.orce, but that is immaterial, as I shall §hew, when Tcome to consider the exception to the charge of the Court. I have no doubt therefore, that Douglas’s deposition was evidence.

3i The third exception was to the evidence of fames Riddle, esq. I am very clear that this evidence was legal, and highly material to the plaintiff’s cause. For.- Mr. Riddle proved, that before the commencement of a suit for a divorce, Mrs, Cunningham informed-him of her situation, and-her earnest, desire to be restored to her husba'nd,. and solicited him' to use his influence as a friend of Mr. Cunningham, to effect a reconciliation, and that he did endeavour to effett it, but to no purpose'.

4. The fourth exception was to the evidence of Mrs. Dunning, who proved, the situation of Mrs. Cunningham, some time previous to the period of her boarding with the plaintiff. The objection to the evidence, is, that her situation at that timp, was immaterial. But I. do not think-so. It was not immaterial to shew the general state of her health and behaviour,-and particularly that she had no, known means of living, but by her own labour. In-a question of this kind, where the blame-of a separation is attempted to be thrown on ■the wife, considerable latitude'should be allowed to the evidence, in order to shew her general conduct, and manner of life, during the separation. I am of opinion, therefore, that there is no ground for this exception.

As to the charge of the Court, it certainly was, upon the whole, extremely favourable to the defendant.' But there are one or two points, on. which his counsel has raised objections. The principal one is, that the husband was not liable for necessaries furnished to his wife, during her. suit fora divorce, But why nót ? Was-she not his wife, until the decree of divorce was pronounced ? And if she was, why should he not support her? Consider the basis of the libel for divorce. Desertion by the husband. If she was deserted, was she tó be reduced to the alternative of perishing, or .subsisting on charity? What principle of law, or justice, absolved the husband from the duty of maintaining His wife, during a separation for which she was not to blame ? Was any fund provided by him for her support ? None at all. But the cause of separation, it is said, was a mystery.' Per-, haps it was voluntary on both sides. But even if it were, and no means of support were provided for the wife, no agreement of hers would discharge her husband from the 'expense of supporting her, if she requested to come back, and he refused to receive her. Whether she did só request, was submitted to the jury, with remarks on the evidence, by the Court, not only impartial, but very indulgent- to the defendant. The jury were told to pay no regard to the wife’s offer to return, unless they, were satisfied that it was made in sincerity, and good faith, without any view to trick or artifice; But-the defendant’s counsel have contended, that the-suit for divorce, and offer to return, were inconsistent. It would certainly be inconsistent to offer to return, and-at the same time persist in the suit for divorce? But there would have been no inconsistency in offering to return, and discontinuing the suit, if the offer were accepted. And that such was the intention, as to any offers made, pending the suit, must be presumed. For no woman in he.V senses could expect, or wish for, a divorce from the bond of marriage, founded on-the desertion of her husband, at the moment she was living with him. Nor if she had wished it, Would any Court have been so-absurd, as to decree it. But in this case,' there was no encouragement to discontinue the suit, because all the offers of the wife, to return to her husband, were promptly and peremptorily rejected. I perfectly agree, therefore, with the opinion of the President of the Common Pleas, that the defendant was liable for’necessaries, until the decree of divorce was pronounced;

Another objection to the charge of the Court was, that the juty were not told, that the husband was not liable for necessaries, if the wife had means of supporting herself. I must remark, that it does not appear by the record,'that the Court was requested by. the defendant’s counsel, to give.any opinion on that point, nor do I perceive that it arose out of jjje evident For there was no evidence of the wife’s hav'mg any property of her own, but the contrary. The jury were fairly told, “ that the necessaries should be suitable to the rank and estate of the husband, in other words, according to the condition of the parties in life.” And, that “ clothing, medicine, boarding and lodging, come under the meaning of necessaries'.” And undoubtedly so is the-law. ’ I do not see how it could have been laid down more accurately. If the wife, during great part of her separation, had laboured hard for subsistence, and lived in a rank inferior to her husband’s situation, that was no reason why she should not be supported agreeably to his situation, when she offered to return, and he refused her. Nor had he a right to say, that she should earn all she could by her labour, and he would only be answerable for the difference between her earnings, and the amount of the expenses necessary for her support. Such is not the law of husband and wife. The husband must support his wife himself, or pay those who do support her in a reasonable manner, and of that the jury are to judge. Upon the whole, I am of opinion, that there was no error in the record, and therefore the judgment should be affirmed.

Judgment affirmed.  