Kemp v. Downham ( 1853 )

Booth, Chief Justice:

If a. husband, from cruelty, whether by personal violence, or by bringing a mistress into his house, oblige the wife to leave him and to live separately; be sends her abroad with credit for her maintenance, and any one who trusts her for necessaries, may recover the price of them.

Fisher, for plaintiff. Smithers, for the defendant.

2. In case of voluntary separation, if the husband settle a separate maintenance on the wife, and pay it, he is not liable for necessaries furnished his wife by any one who had notice, or means of knowledge of the separate provision.

The questions then were—1. Whether the husband turned his wife away; if so, he was liable in this action; 2. whether the separation was voluntary and by mutual agreement; if so, was there an adequate separate allowance made and paid, and had the plaintiff notice "of this; if so, the plaintiff could not recover. And this notice might be inferred from circumstances. (Ros. Civ. Ev., 214; 3 Esp. Rep., 350 ; 1 Lord Raym., 444.)

The plaintiff had a verdict.