Johnston v Sumner
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1858 |
| Date | 07 May 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 469
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C. 27 L. J. Ex. 341, 4 Jur. (N. S.) 462; 6 W R 574. Referred to, Eastland v. Burchell, 1878, 3 Q B. D. 437; Debenham v. Mellon, 1880, 6 a. C. 32.
JOHNSTON l. sumner. May 7, IS38.-During cohabitation, a wife has an implied authority as agent of her husband to pledge his credit for necessaries suitable to her station, notwithstanding any private agreement between them -If a husband turns his wife away and she is unable to maintain herself, she has ari authority of necessity to pledge his credit foi necessaries supplied to her -Sed quaere, whether, if a labouung man turns his wife away, she being capable of earning, (//) J6 L J Exch. '2'2\.. The case was not reported in '2 H & N , because no point of law was decided by it There was no evidence that the machinery used was improper, and it was consistent with the facts that the workman's own negligence caused his death. 470 JOHNSTON V. SUMNER 3 H. & N. 262 and earning as much as he did; or if a man turned his wife away she having a settlement double his income in amount, the wife in such cases could bind the husband.-If a wife leaves her husband without his consent, she has no authority whatever to bind him -Where husband and wife part by mutual consent, and nothing is said, and she cannot maintain herself, a juiy may infer that the husband meant that his credit should be pledged . and semble, even if at parting he said otherwise.-But where husband and wife part by mutual consent, and the wife is oapable of supporting heiseif or has a sufficient allowance, the but den of pi oof is on the person who has trusted the wife to shew an authority eithei express or implied to pledge hei husband's credit.-A husband and wife separated by mutual consent when it was veibally agreed that the wife should continue to receive 2001. a year, which had been settled on hei on the mariiage. Held, that the husband was not liable for necessaries supplied to his wife, the plaintiff having failed to shew that her allowance was insufficient, or that she had any authority to pledge her husband's credit. [S C. 27 L. J. Ex. 341 , 4 Jur. (N. S.) 46:2 ò 6 W R 574. Referred to, Eattland v. Burchell, 1878, 3 Q B. D 437 ; Delenttam v Mellon, 1880, 6 A. C. 32.] Action for goods sold. Plea Never indebted. At the trial, before Pollock, C. B., at the Middlesex Sittings after last Michaelmas Term, it appeared that the action was brought by plaintiff, a milliner in London, to recover the sum of 1601. for dresses and articles of millinery supplied by him to the defendant's wife. The defendant married in July 1849, on which occasion his father entered into a covenant to pay him 5001. a year, and Mis. Sumner's mother covenanted to pay her 2QOL a year for her1 separate use until the death of her mother, when she would come [262] into possession of her mother's property. The defendant and his wife went to reside abroad, and in 1850 they separated by mutual consent, when it was verbally agreed that Mrs. Sumner should continue to receive the 2001. a year for her sole use. On parting, the defendant left with her 701. In the year 1851, Mis. Sumner, who resided with her mother at Frankfort, wrote to the plaintiff for some diesses, which were supplied to her bhe afterwaids came with her mother to the plaintiffs shop in London, and ordered other articles At this time the plaintiff was not aware that she was married, and made no inquiry about it, but, having afterwards ascertained the fact, he brought the present action against her husband. It was submitted on behalf of the defendant, that under these circumstances he was not liable. The plaintiff's counsel requested the learned Judge to leave to the jury the question whether Mrs Sumner had an allowance sufficient for her station in life. The learned Judge was of opinion that there was no evidence for the jury, and nonsuited the plaintiff. Edwin James, in the following term, obtained a rule to shew cause why a new trial should not be had on the ground of...
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