Rigoney v. Neiman

The opinion of the court was delivered, March 17th 1873, by Sharswood, J. Before the passage of the Act of April 11th 1848, Pamph. L. 536, the plaintiff would have had no case; not against the wife, for she could bind herself by no contract, nor against the husband, on account of the misjoinder of the wife. The husband could be made liable, only for necessaries sold to the wife upon her implied authority as his agent, in like manner as when she made contracts in the course of a business, carried on with his express or implied consent: Nutz v. Reutter, 1 Watts 229; Jacobs v. Featherstone, 6 W. & S. 346; Alexander v. Miller, 4 Harris 215; Williams v. Coward, 1 Grant 21. It is by the eighth section of that act, that suit is authorized against husband and wife for the price of necessaries for the support and maintenance of the family of any married woman, and the act provides that on a judgment in such action, the plaintiff shall have execution in the first instance against the husband alone, and if no property of the husband be found, an alias execution may issue, to be levied and satisfied out of the separate property of the wife. It is not necessary, in order to entitle the plaintiff to a judgment, that he should prove that the husband has no property, or is insolvent, or that he has refused to provide for his wife and family. He may have ample property, out of which the debt may be paid on the first execution. It is only necessary, before judgment can be rendered against the wife in such joint action, that it should be proved that the debt sued for was contracted by the wife, and. for necessaries for the support of the family of the husband and wife —the word “ or,” used in the act, having been construed to mean “and”: Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251. The book entries were not conclusive evidence of a [333] joint contract by tbe husband and wife. There was evidence that the goods were purchased by the wife, and on her credit. The question, whether any, and if any, how much were necessaries for the family, was for the jury. Judgment reversed, and venire facias de novo awarded.