Baker v. Barney — 8 Johns. 72

Majority

p. 72

Baker against Barney.

Headnote

J5 a husband and vite part» by consent, and the husband secures to her a separate maintenance, suimble in life, ««i*pays ágreTméut’fieis Ucfes^fln-nUhed to his wife; not even for necessavies. And the ihm^of tSTseMifficient.W1But men^on^'ihe in'i'd °to’Vo" » certain^siin> to separate maintenance, was pot reduced t° writing, and no evidence of any payment having been made by him to her, he rxis held liable fur goods furnished to his wile, during the separation.

IN error, on certiorari. from a justice’s court. .The re-7 7 . J turn stated, that Barney sued Blake before the justice, ' v v and declared for goods sold to 311 97. The defendant , . , plead non assumpsit; and there was atrial by jury, lhe plaintiff proved the sale and delivery of the goods to the zvtfe Baker] on the 7th January, 1809, and his clerk Proved that the common report, at that time, was, that Baker did not live with his wife. Barney proved that he and his wife, in December, 1808, parted by consent, about seven weeks before the goods were delivered to her ; and that he was to give her 31,000 ; and that she resided at a different place. It did not appear that when Baker and his wife, parted, and he agreed to give her g1,000, that any writings passed; but in the springóf

p. 73

1809, it was understood that the writings between the . husband and wife were executed. No evidence was given of any payment by Baker to his wife.

• Skinner, for the plaintiff in error.

Foot, contra.

If the husband and wife part'by consent and he secures to her a separate maintenance, suitable to his condition and circumstances in life, and pays it according to agreement, he is not answerable even for necessaries ; and the general reputation of the separation will, in that case, be sufficient. It was so ruled by Holt, Ch. J. in Todd v. Stokes; (1 Salk. 116.) and this general doctrine seems to have been conceded in Nurse v. Craig, (5 Bos. & Pull. 148.) in which case all the authorities are carefully reviewed, and the extent of the husband’s responsibility, when he and "his wife part by consent, fully and ably discussed. , .The court in that case laid great* stress upon the circumstance of the dup security and punctual payment of the pecuniary maintenance allowed to the wife. In the present case, "the husband and wife had parted, by consent, a few. weeks prior to the sale of the goods, but the contract was not reduced to" writing until the spring following ; and there was no evidence of payment of any p'art of the sum agreed to be given to the wife. The-.whole rested in a naked.promise, without validity, and if the husband was ■ from that time to be discharged from responsibility for necessaries, the wife might have been left to subsist on charity. The goods ’taken up in this. case,.cannot be considered as" unreasonable or improper; and the defence below "failed- from -the want of showing, that at the • time of the sale-of the goods, the allowance Was punctually paid or secured according to the agreement,. The judgment must therefore be affirmed. .