
    SOMERSET COUNTY.
    December Term, 1796.
    James Spencer v. William Tisue.
    THIS was an action of debt for 2000l. the penalty on an article of agreement for the purchase of a trait of land, sold by Spencer to Tisue, for 750l.
    
    
      Of this price, it was admitted, that Tisue should have credit for 30l. 0s. 6d. paid by him for goods bought by Spencer, and also for the half of 78 dollars and 27 cents, the amount of excise duty on stills sold with the land and, as to the other half of this duty, it was left to an amicable adjustment on circumstances.
    
      
      Tisue further claimed a credit for 20l. as the price of a set of smith‘s tools, which, it was proved, he had given to Spencer. But there was also evidence tending to prove, that he had given them as a present beyond the agreed price.
    Another credit was claimed for 12l. the price of two cows sold by Tisue to Spencer. But there was evidence tending to prove, that one of the cows was for Thomas, son of James Spencer, in payment of a debt due by Tisue to him.
    
      Tisue produced a receipt to him, given by Mary, the wife of James Spencer, for 263l. 17s. 6d. Of this sum 226l. 7s. 6d. was actually paid to her, in the presence of Thomas and William, sons of James Spencer, and then of age; and it was then also admitted, that the residue, 37l. 10s. had before been paid to one of the sons, to buy land for the family. There was also evidence, that Mary Spencer had given a receipt for but 226l. 7s. 6d.; that afterwards Thomas Spencer had borrowed of Tisue 37l. 10s. to be paid in three weeks; and, he not paying, Tisue prevailed on his mother to include this and the other sum, in a new receipt to be given for the whole 263l. 17s. 6d. There was evidence, that, at this time, James Spencer had no fixed place of abode; that his wife and family lived in a house near Tisue’s which had formerly been Spencer’s; that, of the 226l. 7s. 6d. Thomas Spencer paid 158l. 17s. 6d. and perhaps the whole of it, to one Simeon Rice, for another tract of land; that James Spencer sent word to his wife to buy Rice’s land, and he would pay the money, if he would fell it on the terms proposed, but there was also evidence, that he did not want to buy this tract, but wished to go to Kentucky;—that it was agreed between Thomas and his mother, that the money should be paid to her by Tisue; that Tisue said he had paid the money to her, that she might have a place to live on; that, after they left Tisue’s, Thomas said, his father had discovered something of the matter, and they must start off directly; that his mother, with the assistance of Tisue and his wife, disguised herself, that her husband might not discover her; that the declared, she bought Rice’s land for her husband; that Thomas lives on it, has got a deed for it, and says he will keep it; that William, with the permission of his brother Thomas, built a cabbin on the land, that he allowed his father to go into it, and that his father and mother now live in it; and that James Spencer, after the purchase from Rice, said, if he got the land, he would give Thomas a part of it, if he behaved himself like a son. A witness also proved, that he had endeavoured to persuade James Spencer and his son Thomas, who claimed an interest in this land, as having claimed some interest in the land sold to Tisue, to agree about dividing between them the land bought of Rice; and, for this purpose, that he run a line dividing it equally; but that neither of them assented to it.
    
      Young and Morrison, for the defendant.
    The money received by the wife has been applied to the use of the husband. There was a dispute between James Spencer and his son Thomas, about the property of the land purchased from Rice. How could this arise, unless the land had been purchased by James Spencer’s money. If the money was James Spencer’s, this admits, that he had assented to the payment made by Tisue to Mary Spencer. Though a wife can make no contract, yet, in many cases, there is an implied permission of the husband, unless there be an absolute prohibition. Wherever there is this permission of the husband, the wife’s contract binds him. There is a plain collusion between the husband, the wife, and the son, to defraud Tisue. If the land has been purchased with James Spencer’s money, the land is his. The whole of this 263l. 17s. 6d. has been laid out in the payment of the land bought of Rice.
    
    Nagle, and Selby, for the plaintiff.
    A wife cannot make a contract for a husband. The 37l. 10s. was lent to Thomas, and is no payment to James Spencer. The authority of the wife was to purchase on the terms which the husband had before proposed to Rice. If she purchased on other terms, he is not bound by the purchase. Therefore the payment to the wife is no payment to the husband. There is no evidence, that the land was bought for the use of the husband. Tisue has made a wrong payment, with a fraudulent view to an improper person, and he must bear the loss.
   President.

The policy of the law is, that marriage unites the two persons in one, sinks the wife in the husband, and gives to the husband the sole right of managing the property of both. But with this union of persons, it is not inconsistent, that the wife should be the agent of the husband: for this accords with the union of persons, and the agent, like the wife, may be considered as the same person with the principal.

There are many occasions, on which a wife, as agent for the husband, appears as the principal. The cares of matrimony, the duties of management are divided, the husband assumes some parts, and submits other parts to the care of the wife: where he either acts or submits he is bound. A husband is often from home. Nothing is more common, than to pay to the wife, in his absence, a debt due to the husband. This is for the convenience of both parties; and seems to be considered as an implied agency. If Tisue made his payment in this usual way, it seems proper to consider it as a payment to the husband, on a presumed agency, with which, in their common concerns, every wife is generally presumed vested.

But if Tisue intended, by paying to the wife, to deprive the husband of that management of the estate with which the law vests him, it is a fraud on the husband, to whom the payment ought to have been made, and is no payment.

But, at the same time, the husband must not be indulged in a fraud on his part. For, if he have afterwards asssented to this payment, or it have been applied to his use, and he accepts the benefits of it. This is a payment to him.

In this case, the wife has given a receipt for 263l. 17s. 6d. Of this, it appears, 226l. 7s. 6d. was actually paid to her. There is evidence, of which ye will judge, that 37l. 10s. also included in this receipt, was previously lent to the son, There is evidence, that 158l. 17s. 6d. part of the 226l. 7s. 6d. was actually given by the wife to the son Thomas and paid by him for Rice’s land, on which the husband now lives, the purchase of which he had contemplated and directed his wife to complete, and interest in which he claims, or has claimed. How the residue of the 226l. 7s. 6d. has been applied, we do not know but the husband and the wife live together in the same house; and it is said, Thomas Spencer has got a deed for the land. Thomas Spencer, considering the title in him, has got land for which he has not paid. If he shall gain, who shall lose, his father or Tisue? The question is whom ye will turn round for remedy. If the land was bought, with James Spencer’s money, by any agent of his, the land is his. This land he was in treaty for buying, and it was bought by his wife and son, with money paid her in discharge of a debt due to her husband.

What is the value of the smith’s tools, and whether that and the price of the cow or cows shall be deducted, you will determine.

The only points in dispute, therefore, are whether the money paid to the wife, the value of the smith’s tools, and the price of the cow or cows, ascertaining these sums, shall be considered as payments made by William Tisue to James Spencer on this contract.

The jury allowed credit for 263l. 17s. 6d. the sum mentioned in the receipt given by the wife of James Spencer, and for 15l. as the price of the smith’s tools, and for 6l. the price of one cow.  