Lockwood v. Thomas , 12 Johns. 248 ( 1815 )

Yates, J.,

delivered the opinion of the court. The husband is bound, by law, to provide necessaries for his wife, as much as for himself; and if she contracts debts for them, he is obliged to pay such debts ; but for any thing beside necessaries he is not "chargeable: and whát are necessaries must be ascertained by a jury, from the rank and- circumstances of her husband. (1. Black. Com. 442.) Where there js cohabitation, the principie, cannot be- questioned, because that, of itself, is deemed evidence of his assent to. contracts, by her, for necéssariese When the husband and .wife are separated, and a sufficient amount in money has not been given to supply the wife with-necessaries, the law also makes it his duty to maintain her. Arid when the law imposes a duty, it raises1 a promise on the part of the person on whom it is imposed, to discharge it. These principles are well established, and have been récognised by this court, in several instances. (8 Johns. 73. 11 Johns. 233.)

It appears that Mrs. Thomas went to the house óf Mr. Bus-sell, not only with the knowledge, but dt the .instance^ of her husband ; it ought not therefore to be urged, that a compliance on her part with his request could possibly exonerate him from the Obligation of maintaining her. He must have expected" and intended, at the time, to have: provided her with.necessaries suitable to her condition in life. " From the smallness of Mrs. Thomds’s annual income, out of her separate estate, it is evident she could not be supported according to her rank and condition in life. The property she is entitled to, by . the will of her father, she received after' the commencenient of this suit; that, of course, cannot now be brought into view, Admitting, then, that the inquiry, as to the deed to the trustee, was admissible, the amount is too inconsiderable to affect the verdict in this suit. It appears that she came to the house of Mr. Russel, oh or about the 1st of May, 1‘813, and the present suit was commenced’ about February, 1814, nine months afterwards, during which period her husband had paid her 50 dollars,, toward her clothing and the expenses of her servant; her board he paid after .the commencement of this action, on being prosecuted for it. The whole annual income of her property, at the time this debt was contracted, after deducting from her real estate, the consideration money for what has been sold and received by the defendant, and 400 dollars, the amount of the diminution of her personal estate before May, 1813, according to the most liberal calculation in favour of the defendant, could not have exceeded 180 dollars; a sum, in my view, wholly inadequate to defray the expenses necessary for her maintenance, the first year after their separation, admitting that her board had been paid by him. It cannot be deemed extravagant or improper for her to have furnished her own room. Mr. Russell, the witness, states, that she was induced to do it from motives of economy, and, therefore, several articles had been purchased the first year, which would he unecessary thereafter.

The dejgndant had supported his wife for several years, while lie lived with her, in a respectable style, and is xvorth about 50,000 dollars, so that, according to her condition in life, Mrs. Thomas cannot be charged with profusion in her expenses; a furnished room and a servant appear to me indispensable. Making, therefore, the necessary alloxvance for the means of support in. her oxvn power, I do not think that the goods taken up, amounting, xvith interest, to 124 dollars and 25 cents, (it being the first, and, consequently, the most expensive year since she lived separate from her husband,) can foe considered as unreasonable and improper. My opinion, therefore, is, that judgment be entered in favor of the plaintiff for the amount of the verdict.

Judgment for the plaintiff.