Hunter v. Boucher , 20 Mass. 289 ( 1825 )

Parker C. J.

delivered the opinion of the Court. It is admitted by the counsel for the plaintiff, that by the common law, as settled by the cases cited, this action cannot be maintained. And it is very clear from those authorities, that where the wife has eloped or left the husband, having committed adultery, the husband is not answerable for necessaries furnished ; and this without notice to the persons who furnished them, for the very fact of separation is enough to put persons upon their guard, and to require them to ascertain the cause of separation,¹ whether from cruelty of the husband, in which case he is answerable, or from the crime of the wife, when he is not.

But it is suggested, that because by our statute a husband who has committed adultery himself cannot obtain a divorce on the ground of adultery committed by the wife, and as in England there can be no recrimination by which the liability of the husband will be affected, the whole law on the subject here is different from the law in England. This however does not follow. If it had appeared that a divorce had been refused on the ground of a similar crime in the husband, perhaps the distinction would apply. But the general rule is the same here as there, viz. that a wife who is turned away from the house by the husband for the cause of adultery, she having committed that offence, does not carry with her credit upon the husband.²

The circumstances of this case preclude the necessity of determining the point of notice, whether requisite or not. The wife had been in gaol on a complaint for adultery, had been convicted, and afterwards went to her mother’s house. This is such notoriety as will charge the plaintiff with knowledge, if that be necessary.

Plaintiff nonsuit.

1 Mainwaring v. Leslie, 2 Carr. & Payne, 507; Hindley v. Westmeath, 6 Barn. & Cressw. 200. See Kimball v. Keyes, 11 Wendell 33.

2 2 Kent’s Comm. (2nd ed.) 147. See Rex v. Flintan, 1 Barn & Adol. 227.