Clark v. . Hay

Smtti-i, C. J., (after stating the case). The sole question presented in the appeal, growing out of the refusal of the instructions asked, and those given in substitution to the jury, is as to the binding force of the defendant’s alleged contract. Was the liability incurred “ for the support of the family ” within the meaning of the clause of §1826 of The Code? Were family supplies procured to keep up a boarding-house, from which the family derived their support, embraced in the words quoted ? We think it has a more strict meaning, and is confined to goods bought for the direct benefit of the members of the family, such as food, clothing, and other necessaries, and not for the successful prosecution of a business, from the *425 profits of which such support is to be obtained, whether by keeping a boarding-house onn hotel, or by engaging in any other general occupation. For these larger outside operations, whose results are speculative, the written consent of the husband, whose advice should be sought, must be obtained, and this is the protection secured to her by the statute. Unless this distinction prevails, where is the limit to liabilities she may incur, by which her separate estate may be exhausted ? The preceding words, “ except her necessary personal expenses,” clearly indicate the extent and limit to which she may go in binding her separate property by her own individual independent act and without her husband’s concurrence. A wider latitude of construction would take away the protection which the law gives to women under the disability of marriage, and imperil their estates. She may become a free-trader with her husband’s approval, and thus emancipate herself from the restraints of her coverture. The Code, §1827. But otherwise she can only exercise the power given her by the act over her separate estate in entering into an executory contract with others. The subject is discussed by RuffiN, J., in Dougherty v. Sprinkle, 88 N. C., 300. See also Webster v. Laws, 89 N. C., 225, and State v. Lanier, Ibid., 517. In this view of the law, pertinent to the facts of the case, the defendant was entitled to have the jury instructed 'as she requested, and in the refusal of the Court to so charge, and in the charge given in place of it; there is error, and there must be a venire de novo, and it is so ordered. Error. - Venire de novo.