Bates v. Enright

May, J. The facts in this case show that the wife óf the defendant was in prison for the non-payment of certain fines and costs, which had been imposed upon her by a magistrate, upon conviction for offences committed by her against the statute prohibiting the sale of intoxicating drinks. The notes in suit being required were given by her to procure her release from such imprisonment. It is contended by the counsel for the plaintiff that these notes, being authorized by the Revised Statutes, c. 175, § 1, are valid, and that the defendant, as husband of the maker, is liable therefor. Are the notes in controversy valid contracts as against the defendant’s wife ? By her marriage the right of a wife to all her personal estate, at common law, vests in her husband, and he becomes liable to make provision for her suited to her — 113 — necessities, and Ms degree in life; but while he is not guilty of any cruelty, or conduct which will justify her in leaving Mm, and is willing to provide her a homo, and all reasonable necessaries, he is not ordinarily bound to furnish them elsewhere. 2 Kent’s Com. 147. She will, however, in case she commit adultery or elope, forfeit all claim upon her husband to make such provision. Hunter v. Boucher, 3 Pick. 289; McClutchen v. McGahay, 11 Johns. 281. But while she is free from any impropriety which by the rules of law will deprive her of these rights, the obligation of the husband suitably to provide for her, will continue, whether she reside in Ms family or elsewhere; and if he fails to do so, or if he turns her away without a justifying cause, Ms very treatment or neglect will be a general letter of credit which will authorize her to contract in his name for such necessaries as her situation requires, and his condition in life renders proper. Bacon’s Abr., 1st Amer. Ed., vol. 1, p. 488, Letter H; Hancock v. Merrick, 10 Cush. 41; Kimball v. Keyes, 11 Wend. 33. Even in cases of misconduct on her part the husband will be held liable to third persons, for necessaries furnished her, unless furnished under such circumstances that the person providing them, had notice, or may reasonably be presumed to have had notice, of the circumstances under which she was living. Norton v. Fazen, 1 Bos. & Pul. 226. If, however, the wife voluntarily separates herself from her husband’s home, such separation will be sufficient to put all persons, supplying her necessities, upon inquiry as to the cause and circumstances of her living apart from him; and if they supply her without doing so, they will do it at their peril. McClutchen v. McGahay, before cited. But involuntary separation, without the wife’s fault, and in some instances where, by operation of law, it exists through her fault, will not relieve the husband from his legal responsibility to provide for her. If, therefore, she be imprisoned for felony, he will be liable for necessaries. 2 Starkie’s Ev., part 4, p. 698. But while she cohabits with her husband, such cohabitation will be sufficient evidence of his assent to her contracts for necessaries, — 114 — obtained on Ms credit, and of her authority to bind him therefor as his agent. Furlong v. Hysom, 35 Maine, 332. Such are some of the rights of the wife, and such are some of the duties and liabilities of the husband, as they exist at common law, for her support and protection; and these are so ample that that law, for these and other reasons springing from the conjugal relation, deemed it unnecessary that the wife should have ability to contract on her own account, and therefore debarred her from such power. Shaw v. Thompson, 16 Pick. 198. So completely has the common law incapacitated a feme covert to contract in her own name, that she cannot, even in cases where her conduct has absolved her husband from his obligation to provide for her, bind herself by note or contract for the payment of such necessaries as her situation may require. Marshall v. Rutton, 8 Durn. & East, 545. Having no power or capacity to contract, she cannot sue or be sued with or without her husband on her contracts made during coverture. Howe v. Wildes, 34 Maine, 566, and authorities there cited. The notes declared on are, therefore, at common law, void contracts as against the defendant’s wife; and, being void, the defendant cannot under that law be held liable thereon. The question then arises whether the notes in suit are valid as against the defendant’s wife, under the statute c. 115, § 1, before cited; and if so, whether that fact will make the defendant responsible in this suit therefor. Does, then, that statute give to a married woman, who is in prison and unable to pay the fine and costs for which she is imprisoned, a capacity to bind herself by note for the amount due, for the purpose of procuring her release ? If she has not such capacity, then no mode seems to be provided by law for her discharge; and her imprisonment may be for life, unless her husband or some friend volunteers and pays the amount required as the condition of her release. By the statute the sheriff is authorized to take the note of the convict only who is imprisoned and unable to pay his fine and costs. In terms, it applies to “ any person convicted of a criminal offence and in favor of — 115 — personal liberty, there seem to be good reasons for applying it to married women and minors as well as to others. No reason is perceived why they should be excluded from its benefits. If the notes in suit are not the notes of the defendant’s wife, then they are not statute notes; and, if they are her notes, then they are not the contracts of her husband, and, in the absence of any statute creating such liability, he can only be hold responsible for their payment upon the ground of some legal obligation incident to the marriage relation. By the common law there are many cases where such an obligation on the part of the husband, to pay and discharge the debts and liabilities of his wife, is implied. He is liable for her debts contracted before marriage. He is also liable with her for her torts and frauds, committed by her during the coverture, where the remedy for the tort is only damages by suit or fine. 2 Kent’s Com. 149. So, too, he may be held liable in an action upon a penal statute, to recover a forfeiture incurred by her, especially where such forfeiture goes to the plaintiff and is in the nature of damages for injuries sustained by reason of her tortious acts. Harbroach v. Weaver, 10 Johns. 247. But when the wife is prosecuted by indictment, for an offence to which her husband is in no way privy, he shall not be included in it, because it is a proceeding grounded merely on a breach of the law. 1 Bacon’s Abr. 487, and cases there cited. It is also said, in a note on the same page, that the husband is not liable to pay the forfeiture recovered on an indictment against the wife. It has also been held, that the husband is liable with the wife to an action of debt or scire facias, upon a judgment recovered against her for costs during the coverture, but his property cannot be taken, nor his body arrested, upon an execution against her alone. Haines v. Corliss, 4 Mass. 659. In the cases before cited, where the husband is held responsible for the debts, torts and liabilities of his wife, his obligation arises principally from the fact that he is supposed to have in his hands, by virtue of his marriage, all the wife’s per — 116 — sonal estate, so that she is destitute of the means wherewith to pay them or make satisfaction. By our present statutes the wife is placed in a very different position. Her property, held by her at the time of the marriage, does not thereby become the property of the husband; and she is allowed to retain, as against his creditors, all which may subsequently come to her “ by direct bequest, demise, gift, purchase or distribution,” unless the same came to her from her husband. Stat. 1844, c. 117, § 1. She is also authorized to commence, prosecute or defend in her own name, or jointly with her husband, any suit at law or in equity, in relation to all such property. Stat. of 1848, c. 73, § 1. If the notes, then, now in suit, may be regarded under the statute as valid contracts of the wife, since the principal reasons which were deemed sufficient at common law to create a legal liability on the part of the husband, to pay and discharge her legal liabilities, have ceased to exist, we are of opinion that they should not be now applied for the purpose of extending the husband’s liability to cases in which they were never before applied, even though by the principles of that law the cases might have fallen within it. The common law liability of the husband, has never been extended to any contracts of the wife made during coverture, for the simple reason that by that law, as we have seen, no such contracts could exist. The notes in suit, if valid as against the wife, under the statute relied upon as authorizing them, having been given before the passage'of the statute of 1844, c. 117, § 1, before cited, are only the contracts of the wife, and not the contracts of the husband; and she alone can be held liable thereon, although for the sake of the remedy, the husband might perhaps be joined with her in the suit, as he now may be in actions upon her contracts before coverture, in which case execution can only be levied upon her estate. Stat. 1852, c. 291, § 1. If the notes are her contracts, no action can be maintained upon them against the defendant alone. It is, however, contended, that if the notes in suit are not valid contracts as against the wife, they are nevertheless valid — 117 — as against the husband. It is urged that this is so, because the consideration of the notes is made up of items for which the defendant was legally responsible before the notes were given, and the authority of his wife to execute them in his behalf may therefore be presumed. It is true, as we have seen, that he might have been responsible for her board while in prison, the nature of her offence not being such as to deprive her of her claim upon him for the necessaries of life while there. But so far as relates to the fine and costs, which went into the note, we do not find, in the examination we have made, nor in the authorities before cited, any principle upon which ho was liable. These were imposed upon her as the sentence of the law, and, so far as appears, for offences in which he was in no way implicated. They were imposed upon her, not as damages for injuries sustained by her tortious acts, but simply as a punishment for her crimes; and it is not apparent to us upon what principles the husband can be made to bear that punishment. No person can be made to suffer twice for the same offence; and, in our judgment, any rule of law, by which an innocent person could be made to suffer, for an offence which he did not commit, by reason of his relation to the offender, would be equally unjust. Yet, such would be the direct effect, if the defendant could be held responsible, against his will, to pay the fine and costs imposed upon his wife. But, if it could be made to appear, that the defendant was liable at common law, for the items which constitute the consideration of the notes, this fact would not necessarily make him a party to the notes. According to all the authorities which have been examined, the husband’s liability for necessaries rests wholly upon his supposed assent to her contracts, made upon his credit, or rather upon his promise implied from his marital duties and the circumstances of the case; and his liability for her torts and upon judgments recovered against her during the coverture, results from an obligation imposed by law; but such promise or legal obligation arises only to such persons as furnish the necessaries, or are injured by her — 118 — torts, or are her judgment creditors, and cannot be enforced in the name of an assignee. The mere right of the wife to procure necessaries on the credit of her husband, or any other liability arising on his part for her, will not authorize her to give his negotiable notes therefor, especially for a past or executed consideration. The simple fact of being a man’s wife does not confer authority upon her to sign her husband’s name to any contract, (Shaw v. Emery, 38 Maine, 484,) and she cannot bind him by signing her own signature, except it be in cases where she is authorized to use her own name as his, .or where his assent to such use may be fairly inferred; as where a note or draft is made payable to her with her husband’s consent, and after-wards, by his authority, either express, or implied from accompanying circumstances, is indorsed by her in her own name. In such a case the note or draft, though literally payable to her, is in fact payable to her husband, and her name, in legal contemplation, stands for his. Hancock Bank v. Joy, 41 Maine, 568. In the case at bar, so far as appears from the statement of facts, the notes were signed by the defendant’s wife without his knowledge or consent, and they cannot, therefore, be regarded as binding on him. If she had signed the defendant’s name instead of her own, he.could not have been held without proof of her authority; and it has been held, in a case where the wife signed her husband’s name, that he was not bound,, because her authority to make the note was not referred to, or recognized upon its face, neither in the body of it, nor in the signature. Minard v. Mead, 7 Wend. 68. In view of all the facts, we are satisfied that this action cannot be maintained. Plaintiff nonsuit. Tenney, C. J., and Hathaway and Goodenow, J. J., concurred in the result. Appleton, J., concurred.