Bridgman oh manby v scott argument in camera scaccarii between Manby and Scott  argue by I January car Reg hark ms No fol this case have be notice in several  book Keble side Mod lev vent and vent it have divide the judge in the king  bench but be decide in favour of the defendant accord to the opinion of hale  Bridgman and seven other judge in the exchequer Chamber against two judge  Twisden I who have before determine for the plaintiff be convince by the  argument of that majority side keb the argument of Mr justice hide be publish  in a book call a treatise of femes covert and better in I Mod the judgement of  hale C B be print in Bacon ab title baron and feme the subsequent case which  seem to confirm the distinction very f alley state by sir Orlando Bridgman be  careful class in a supplemental note in the last edition of comens digest  title baron and feme Q n that vol two and in Mr Nolans note to Bolton v  apprentice Str a see S c lev e r with note Tr r b r where a wife leaves her  husband against his will he be not liable for good sell to her although they  may be suitable to his degree and although he do not allow her maintenance and  she do desire before she buy the good to return to his house before the sale  and delivery of the ware the husband do forbid the plaintiff to trust his wife  in the exchequer Chamber by adjournment from the king bench hark ms No fol No  fol No fol Bridgman c j Francis Manby and William Richard be plaintiff and  Edward Scott Esq be defendant in a action upon the case upon a indebitatus  assumpsit in S d for diverse ware and merchandise to the say Edward before  that time sell and deliver and upon non assumpsit plead the jury find a  special verdict that the plaintiff be tradesman in London at the time of the  sale of the good and merchandise in the declaration that long before the  action bring videlicet the that of April Katherine the defendant wife do  depart from he against his will and so continue absent from he diverse year  and that afterward before the action bring or the ware sell she do desire to  cohabit with her husband which he refuse to admit of and that ever since she  live from her husband and that afterward she live from her husband and before  the sale and delivery of the ware the defendant do forbid the plaintiff to  Bridgman oh trust his wife with any good or ware whatsoever and that diverse  year before the sell of the good in the declaration the defendant allow no  maintenance to his wife they further find that the plaintiff afterward  September contrary to the say prohibition do sell and deliver upon credit to  the say Katherine the defendant wife diverse ware and merchandise in the  declaration within mention for S d be a reasonable price for the same that the  say S d do yet remain unpay and they further say that the say ware and  merchandise so sell and deliver to the say Katherine be necessary for her and  suitable to the degree of her husband but whether upon the whole matter the  defendant do assume upon himself modus Bridgman oh er p et form as the  plaintiff have declare they ask the advice of the court et si c pro querent c  et si non c pro defend c upon this verdict two question have be make and  debate single et per see without consideration of circumstance whether the  husband allow no maintenance for his wife the wife can take up ware and by way  of contract charge the husband not volens without his appointment or direction  precedent or consent subsequent and I hold she can and the second be admit  that the wife may in some case take up necessary for herself where the husband  allow her no maintenance and the husband be charge by her contract yet whether  upon the circumstance as they be find in this case on the one side that the  wife depart from her husband against his will and so continue absent from he  diverse year and second that the defendant prohibit the plaintiff to trust her  and on the other side that she desire to cohabit with her husband and he  refuse and that the ware sell be necessary for her and suitable for her  husband degree I say upon all these circumstance admit the contract of the  wife may in some case bind the husband where the husband allow no maintenance  yet whether the husband shall be bind to pay for these ware thus deliver by  the plaintiff or not I shall not consider it as a distinct point because it  will fall in my way in the prosecution of the first question and the answer to  the objection of the other side first then I shall endeavour to prove this  conclusion that the wife can by the commonlaw by way of contract charge the  husband not volens without his consent precedent or Bridgman oh subsequenta  condition personae from the condition or incapacity of the wife in the eye and  consideration of the law as to make a contract to make a good agreement and  contract there must be both a will and a power in the party that contract but  the wife have neither a legal will nor power to contract without her husband  consent who in vita to speak against non to be able say the writ of who in  vita and she be sub control et gubernation et rational castigation man say the  writ of supplicavit she be sub potestate man e communement dit and feme covert  nad ascun volunt et Q la volunt deal feme e subject all volunt Le baron in  judgement deal lie note in the margin of the manuscript b say our book if a  feme covert commit a burglary a felony with her husband the limitation to this  doctrine be state in Russel on crime c the law lie the fault on he and excuse  her as sub coercion man and take it to be not her will but her husband nay go  to contract of record a statute or recognizance by a feme covert be not  voidable only but void if a feme covert levy a fine it bind her if it be not  reverse in her husband lifetime yet not as it be a concord or agreement of a  feme covert but as a feme sole in point of estopel and for the honour of the  court that take it but if a feme covert levy a fine sole by the name of Alicia  wife I S this be a void fine for the wife have no power to contract as a wife  without her husband and there be no estoppel because it appear upon the record  itself that she be a feme covert   Chedingtons case it be clear then that the  wife can contract for herself without her husband consent as little reason it  be that she contract for her husband without his consent this be also agree to  I in all case of contract by the wife for the husband save only for necessary  for herself though it be a contract for meat and drink and necessary for the  family the law look upon it no other than as the contract of a servant which  be good so far as the authority be give but no far I will not be mistake that  the law look upon the contract which she make for her husband as the contract  of a servant and all the authority of our book which have be cite couple they  together what then shall rational make the difference between contract for  herself and contract for her family for necessary she have no more legal will  or power to contract in one case than the other and in the action at law  against the husband on such case the declaration distinguish not whether she  take up ware for herself or the family but in both case declare of a contract  by the husband but not by the wife Bridgman oh Oh but it be object these be  contract in fact this concern her person and be a contract in law of the  husband for the husband by marry her be bind to find necessary for her I  answer so he be bind to right her if she suffer wrong yet if she be beat or  Bridgman oh er p slander what remedy have she if her husband will not bring  his action and yet these concern her person but to say the marriage make a  contract in law be the beg of the question if there be such a contract create  by law the law will have enable the mercer to have declare accord to the truth  that the wife take up the ware for necessary and so charge the husband and not  ground the action upon a real untruth a supposal of the delivery of the ware  by the mercer to the husband and his promise to the mercer to pay for they in  a action for slander or battery or the like do by the wife or do upon the wife  yet the declaration must be true secundum reality fact that the wife speak the  word or make the assault or the word be speak against or assault make upon the  wife and if the law have make the wife take up ware to be a good contract  without the husband consent to charge he the law will as well have enable a  action against both husband and wife upon this personal contract as it will  upon a trespass or fact do by the wife or upon a real action so that be my  first reason a condition personae the wife have no capacity to charge her  husband by way of contract without his consent my second reason be upon the  same ground ab useless it be a argument urge by my brother who first argued if  the commonlaw give the wife power to contract for clothes for herself and to  charge the husband not volens against his consent the same law will also give  her power to retain they not volens without his consent but it be clear the  husband may take they away and the wife have no remedy by action or otherwise  for they some answer have be endeavour to be give to this as first that if the  husband may take the ware away the wife may take up more upon trust but this  be but a ill remedy if the husband may still take they away second answer the  husband may by law keep his wife at home so that she can go abroad to be trust  but then it be a imprisonment and a supplicavit will lie for it and it be a  cruelty to the wife to take away her clothes and a supplicavit lie for that  cause also and the husband will be force wife bene et honest to draw violently  but I ask again what if he will not obey then he must lie in prison Bridgman  oh why but that my brother himself who urge this himself say be no sufficient  remedy to help the wife to alimony in the ecclesiastical court but second I  deny a supplicavit will lie in this case that lie not but where the husband  threaten her de vita et member the take away necessary for conveniency only  such as our case be as I shall show anon touch not vine et member Reg Orig fol  f n b si feme soit manasse per sa baron de ill bater or occider el aura  supplicavit and the writ in quod self de vita svan et de mutilatione  membranorum per the dawn accuse to step out ac damnum et malum some eiden de  corpore his aliter who ad man suum ex causan control et punishment wife nest  to be for sale et reasonably perlinet non to make and if it do lie for  imprison her and restrain her liberty in the house yet it be no imprisonment  to allow her the liberty of the house and restrain her from go out of it but  it be a rage and for that the wife shall have her remedy in the ecclesiastical  court be it so it be that I contend for but then it be not a remedy at the  commonlaw and if the commonlaw give the thing the commonlaw will give the  remedy and not put you to resort ad forum another so that the argument under  pardon still hold the wife can contract against her husband will because she  have no power to retain what she contract for against his will but my brother  who have argue on the other side have make a contrary use of these argument a  condition personae they urge that in regard the commonlaw disable the wife to  have any property of her own to acquire any thing to herself to bring any  action by herself or to contract for herself that therefore res self valet and  she may for necessary for herself bind her husband by the contract I deny the  consequence the inference be much more natural that because the law allow not  the wife to contract for necessary therefore she may take her husband money  without his consent and with it buy necessary or she may sell and pawn his  good and without his consent raise money to buy necessary this my brother will  not say to be law and yet this be the more genuine and proper consequence than  to say because the law disable the wife therefore if she can get a mercer to  trust her she may take up upon trust and so charge her husband she that can  direct take his good or money for necessary without his consent much less may  e charge his person or ex to turn aside charge his estate without his consent  but the Bridgman oh er p truth be neither the one nor the other be a good  argumentation it be much more reason from this disability and incapacity of  the wife to infer that because the wife be thus disable by the come Bridgman  oh mon law to provide for herself therefore there be another proper remedy  provide for her which as I shall show anon be the EcclesiasticalCourt which be  the proper court for matter of matrimony which be shrinking spiritual a three  argument be ab inconsistency the great inconvenience that will follow if the  wife may take up ware for herself against the husband will and that the  commonlaw shall make this to be a debt to charge the husband the particular  mischief to the party have be already open by my brother Windham I Keble  meddle not with those but with inconvenience of another nature I ask the  question of those that argue on that side the wife want necessary pro victim  or clothing suppose the cause of this want come from herself and the fault be  she in this want she take up ware of the mercer shall the husband be charge in  this case or shall he not my brother Terrell seem to allow that the husband  shall not be charge where the husband allow her sufficient if she misspend and  the same reason be within reach in all case where the husband be not in fault  but that the cause of the necessity or want spring from herself without his  fault and my brother Atkins opinion go this way my brother Twisden hold and so  Mr Jones argue at the bar that as long as she be his wife let the fault be  what it will she be to be maintain by he and when she want and take it up the  law create a debt and her husband must pay it and in truth most of the  argument of those that argue on that side tend that way distinguish I Keble  whence the cause of the wife want of maintenance proceed admit this last  opinion to be law that if the wife want apparel or other necessary convenient  for her degree that the wife may take it up and that the husband be charge for  it though the fault and cause of want of maintenance be in her then the mercer  demand here of money for clothes take up after that the wife desire to cohabit  with her husband be but very modest for her husband may be charge not only for  the time since her return for her diet and apparel but during all the time of  her voluntary departure and absence against her husband will this be one  mischief I shall give you another instance the husband allow his wife money to  buy clothes she spend it at card or perhaps worse whereby she want apparel she  take it up of a mercer this be for necessary the mercer sue the husband admit  Bridgman oh this opinion to be law what will bar the mercer from recover I  will put it further the wife have take up apparel from the mercer she want  money for play and to raise it sell or pawn the apparel which perhaps the week  before she take up upon trust well now she be in a condition again to want  apparel convenient for her degree this mercer or another mercer furnish her  again and so I may put this question from time to time ad infinitum what bar  be there against the mercer action if this be law that when she want necessary  whatsoever the wife fault be the husband be Chargeable for what she take up  the husband have a family and keep a house and will allow her all thing fit if  she will cohabit with he but she will depart from he and life of herself  though be keep and must furnish a table suitable to his degree which will be  sufficient for his wife as well as himself yet now he must pay for her diet  and not only so but also for her servant for it be suitable to her degree to  have they she go away and stay away in a obstinacy while she instead of love  honour and obey stand in defiance of he if this be not a encouragement to  disobedience I know not what be oh but say my brother Twisden she must not  starve though she be a ill wife I answer when she voluntary depart from he if  she will rather starve than not have her humour whose be the fault the  scripture say he that will not work let he not eat so may I say if she will  not return with the prodigal she must eat husk with the prodigal oh but in  this case she do return and desire to cohabit with her husband I shall give  that a answer anon that be not the case we be now upon the case now by way of  supposition or admittance isThe wife be in fault and continue in fault whether  while she be in fault and so continue the husband shall maintain her true if  he must he must then lie down and sink under the burden I shall use my brother  own phrase t he husband must to send down auriculas ut unjust mantis ass but  that be Bridgman oh er p not all if this power and liberty be allow it give  temptation to inconvenience of another nature if the wife have this liberty  that though the husband will give her maintenance at home yet she will abroad  and her husband shall be force to maintain her or if she do not depart and yet  want maintenance convenient for her through her own fault yet the husband  shall be punish and pay for it and she shall go free I know not where it will  end but now on the other side grant that it be not sufficient to Bridgman oh  prove that the wife want necessary but that the cause of that necessity will  come into consideration if the mercer bring his action for the ware and this  come in question before a jury now you make the jury a consistory the  commonlaw which be a law of great modesty and decorum have leave matter  concern matrimony such as unchastity frigidity free contract and the like ad  other examen as think they fit for a private audience and for a private  examination than for such a public trial as the commonlaw require but upon  this trial by jury the whole carriage of the husband to the wife and of the  wife to the husband must be rip up and those circumstance arcanum household  scarce fit to be speak in private before a confessor lie open not only to a  jury but ante out of the temple vulgusall the bystander and the consequence of  this be a embitter of their spirit and induration of their heart one against  another to make the breach so wide that it can never be close there be another  thing in it too and that be the jury admit this matter come to be determine  before they they be only to try the matter whether the one or the other be  faulty they can as in such case be needful put in any temperament or lenitive  or any thing that tend to reconciliation and all this be do upon a collateral  issue of non assumpsit where what one will give in evidence against the other  touch the cause of the difference between they do not appear and so it will be  almost impossible to provide for a defence I Keble Mod one of my brother urge  against this argument ab inconsistency if there be a defect in the law it must  be remedy by parliament but it alter not the law if I grant he this he gain  not by it for it answer his objection which he make from the defect of the  ecclesiastical law to give a full remedy but the difference be apparent as my  brother hide Keble Mod say where the law be clear and settle you must not make  a new construction or declaration of the law because of inconvenience but  leave that to be remedy by the parliament but when it be a question whether  this be law or not the argument be very strong for it be not to be presume  that that which be inconvenient or absurd to be do be agreeable to law the  next reason be this In case the husband will not allow maintenance or alimony  to his wife the husband be compellable to it by the ecclesiastical law that  cause of alimony be be Bridgman oh of ecclesiastical conusance and that upon a  libel by the wife causan rage that court may decree alimony that be money to  supply her with necessary be not altogether deny and yet but faint allow deny  in the manuscript g by my brother that argue on the other side but the  authority in our law which have be cite be fall enough on it James Cr Hyatts  case car cro drake case Cr car green case to which may be add rook case a  divorce causan rage in the ecclesiastical court be allow and in such a case  exempt the woman out of James c which make it felony to have two husband but  if there be no express authority in our law in it yet it have be the constant  perpetual practice in the ecclesiastical court in causan rage or other case of  separation to allow alimony or maintenance to the wife we ought to take notice  of their jurisdiction we take notice of the jurisdiction of the court in the  county palatine Wales and the like a strong of the ecclesiastical court which  have be as ancient as Christianity they be in many case of temporal conusance  subservient to the commonlaw and where their arm be too short in matter of  ecclesiastical conusance the commonlaw be assistant to they cause matrimonial  and testamentary have be time out of mind of ecclesiastical conusance say the  stat h c and what can be more a matrimonial cause than a cause of alimony  where the husband deny maintenance to his wife the contract of matrimony be  spiritual and it be part of that contract that in fancy church he endow her of  his worldly good and that which concern the performance a breach of that  contract be most proper for that court the precedent in Henry the Bridgman oh  er p three time which have be cite of Emma de Pinkney and Sarah Fretchingfield  in the imperfect argument preserve in No of the manuscript fol b and partly  print at the end of this report the case of Emma de Pinkney and of the wife of  Fretchingfield be thus state rot cl h m Emma de Pinkneys case her husband be  excommunicate eastern quod prediction ennan affection maritali non to draw  violently and therefore in aid of the ecclesiastical court a writ go to the  sheriff of buck quod de maritagio praedictce Emmce I conceive her own land or  land give in frank marriage it be eiden emmae rational estoverium suum to come  upon while idem Laurentius videlicet swine she tanquam wife svan to draw  violently rot cl h m a second writ issue in the same case recite the husband  eloigning himself out of the country after a excommunicate to take in hand and  that the sheriff have seize his land in Cestresham which be maritagium Self  emmae and thereby command he to assign to the say Emma per look estimable man  unde means victus et vestitur reasonably to have to be able rot cl h m a writ  issue to the sheriff of Suffolk quod to have to make to Sarah the wife of  Stephen Fretchingfield estoverium suum deterris Self Stephani in  Fretchingfield who excommunicate be eastern quod non vult self lege maritali  to draw violently while idem Stephanus she tanquam wife svan tractaveri which  case I mention not as authority in law but as evidence of fact that in these  case the ecclesiastical court meddle with these matter of conomics between  husband and wife she complain because he do not treat her lege maritali in one  of the precedent affection maritali as the other be he that suffer not his  wife to have necessary I be sure do not treat her affection maritali see Keble  where these case seem to be otherwise notice Lord Hardwicke in Middleton v  Crofts Ridgways report establish the ecclesiastical jurisdiction upon ancient  usage as to the second general question since we be clear of the opinion that  the canon of do not bind the laity the next question will be whether the  spiritual court have not a power to punish by the ancient canon law receive  and allow before that time by the general usage and custom of the realm?And we  be all of opinion that they have such a jurisdiction that many such usage have  obtain in this realm I have already show by what I have mention of Caudries  case and this we think be real warrant by Henry where there be word of such  import and upon this vest the only and true foundation of all ecclesiastical  jurisdiction within this realm Godolphin cite in burn ecclesiastical law say  that marriage be at first try in the temporal court but afterward by the  concession of prince such cause be determine in the spiritual court and see  burn ecclesiastical law and Jura Church rites vol two p h of excommunication  in Bridgman oh the ecclesiastical court for that the husband do not wife  affection maritali to draw violently as the one or lege maritali as the other  have it though I do not make use of they as authority in law yet I may as  evidence of fact that cause of that nature be then handle in the  ecclesiastical court and there be none but know that the husband may be compel  per coercion ecelesiasticam ad impendend et to servility conjugal it be rather  insilluated than urge on the other side that alimony be not mention in the  statute circumspect to put in motion point of time allotment of land or in  Cawdrys case   and therefore not of ecclesiastical conusance for the two first  mention only some particular of ecclesiastical conusance and Cawdreys case be  express   et that other cause be of ecclesiastical conusance beside those  there particular enumerate but this be so clear that at length it be confess  that where the suit be causan rage in the ecclesiastical court there shall be  a divorce and alimony allow but divorce be the principal say they and alimony  be the consequent and alimony be not allow but where there be a separation and  Bridgman oh there be no precedent in any case where you shall sue there for  alimony original but it come in consequently a result and therefore have  jurisdiction in case of divorce the alimony shall be allow as a consequent of  the divorce and not otherwise and second they infer this by the common  prohibition upon the register ne to hold placitum in curian Christian de  catallis et debt is owed nisi catalla that well debt is owed to be de  testament well marriage and this be not marriage in both which objection there  be under favour a mistake in the first it be very Bridgman oh er p true that  the libel where the husband allow not maintenance be near rage and express  wherein for deny necessary and what great cruelty can there be than not to  allow they to her but it be not necessary that the suit end in a separation  first if the wife complain desire it not for she only set forth her complaint  and desire remedy salary of pastor law et the whole of the laws in here part  become and cum execution ministrar nay if not only alimony be desire but  society also as common it be in such case she may pray that her husband may be  compel ad cohabitation et consortium eamque maritali affection tractand and  second if she do desire a separation causan rage she may be allow alimony and  yet if the ecclesiastical court think fit be tie to live with he especial if  it be only a privative rage nay if it be a cruelty by beat or the like yet he  may give caution ad to draw violently maritali affection and if he put in such  caution as the court shall approve of no sentence of separation passes and if  there be such a separation yet it be but with a until what time neither but  the husband be tiedneither to the one nor to the other if the fault be not in  the husband and for the second That alimony be but a consequent of the divorce  or separation ex wandering sequitur error as it be a error that there must be  of necessity a separation in such suit so it be a error that alimony can be  demand in causan first but must come in only as a accessary and consequent to  the sentence for the libel may be suppose a rage that he shall allow her  alimony donee he shall taking of precautions to put between of better usage or  the petition in the libel may be ad to draw violently maritali affection in  general which imply allowance of alimony and the objection upon the  prohibition de debt is owed et catallis who non are de will well marriage  reach not to this case for first if you take the suit in the ecclesiastical  court for alimony to be a demand de debt is owed et catallis you must take it  to be a suit de debelis et catallis who are de marriage the word de be not to  be take critical as my Bridgman oh brother Twisden will have it but de  marriage must be take for concern matrimony if a divorce be the wife may sue  in the ecclesiastical court for her good and yet this be not de marriage if  you take not the word de marriage to be expound for concern matrimony but  second the meaning of that prohibition de debt is owed et catallis who non are  de testament well marriage be also mistake in cause matrimonial you may sue in  the ecclesiastical court for a sum certain or good in specie as if good in  specie be promise in marriage or l in money the party may sue in the  ecclesiastical court for they f n b a so if there be a divorce the woman may  sue there for the good in specie or the money that she bring in marriage to  the husband h f n b c h dyer and so in cause testamentary if a legacy or good  in specie be devise the Iegatee may sue for it there but general in other case  ecclesiastical which be not de will well marriage you can demand either good  in specie or a debt or sum certain neither indeed do the libel for alimony  demand any sum certain though in the conclusion alimony be ascertain by the  court but if you will construe as some do the prohibition de debt is owed et  catallis to extend to prohibit all recovery of nonies or damage in other case  but testamentary or matrimonial it be a great mistake for almost all cause ad  earnestness birth end in damage and in those cause which be ex duty or mere  pro reformation morum as pro injections manus in clergyman c yet expenditure  lawsuit be adjudge and change in remember of money nay in some of these case  penalty to pay a fine be allow as you may see by the statute de circumspect to  put in motion if a suit be for leave the churchyard uninclosed or pro church  expose well non decenter well equipped alian penalty non to be able knock or  dash how to pay a fine say the same statute in all suit for subtract of tithe  before the statute Edward and at this day for subtraction of church duty  ablations procuration and the like the loss or prejudice must be recompense in  money so that I conceive with some clearness notwithstanding these objection  there be a proper remedy for a wife when her husband deny her maintenance in  the ecclesiastical court and in truth how can it be otherwise first the  ecclesiastical law give her power to sue her husband and to set forth her  complaint and not only so but provide for her pen the suit but by the  commonlaw she can so much Bridgman oh as sue her husband second the  ecclesiastical law give a direct and proper remedy by demand of alimony the  commonlaw if it give a remedy it give it but a late by a side wind and upon a  peradventure if she get a mercer to trust her and that Bridgman oh er p will  hardly be unless the mercer get half in half by his good for be run the hazard  if it be take up by the wife not for necessary or if the husband be not in the  fault he lose his ware three the ecclesiastical law have a proper way of  examination of the difference between a husband and wife by the bishop who be  common parent who take it to his own audience and judge where the fault be and  do it private and endeavour a reconciliation and if that can be have then he  judge the measure of the alimony accord to the demerit in some case a great in  some a less proportion be require but by this way at the commonlaw suit at  commonlaw against husband by tradesman for supply wife with necessary have not  be unfrequent and the circumstance of each case seem to have be usual examine  by the jury child v Hardiman strange Robinson v Greinold Mod salk Govier v  Hancock t r Hain v Toovey Selwyn n p n p I the wife become first her own judge  what be suitable to her degree then the mercer a stranger be bring in to take  her part and this necessary bring on a suit against the husband and then all  must be bring before a jury and a great many bystander and those conomics and  the secret of the familySuits at commonlaw against husband by tradesman for  supply wife with necessary have not be unfrequent and the circumstance of each  case seem to have be usual examine by the jury child v Hardiman strange  Robinson v Greinold Mod salk Govier v Hancock t r Hain v Toovey Selwyn n p n p  I which the wisdom and modesty of our law think fit for another kind of  examination bring upon the stage and yet this jury have no power to  commensurate the mainten once accord to the demerit of the party but be the  wife never so good or be she never so have tros Tyriusve I nullo crisis to  have if the ware be suitable to her degree the jury must find they to be  necessary for her and necessary for convenience alike both a good wife and a  have wife must have award by this jury and now I demand where be the want of  remedy in the ecclesiastical court for a good wife who conversation will  endure the test where she meet with a churlish husband who will not allow her  necessary she in conscience of her duty be Willing to live with he but not to  be starve she repair to the bishop and be not her own judge he call the  business to his private audience as be usual in such case and hear both  parties finds the husbandendeavours a friendly reconciliation the husband be  obstinate and will not obey then he direct proceed upon proof and thereupon  find the husband in fault give sentence accord to the merit Bridgman oh of the  case and the husband estate here be a clear of her innocency and a just  provision for her oh but shall she starve in the mean time No upon the very  complaint as soon as it do to agree de marriage he shall allow her maintenance  pendent light both to maintain her and pay for her suit so smith v smith  Phillimore king oh but what if the husband will not present obey the order or  decree?There be no sequestration of his estate that be the great objection  which be urge upon the defect of the ecclesiastical law I shall answer it at  full anon that at length he will be compel to obey in the mean time let I say  she have as good a remedy if he will not obey as the other side do propose  they will have her borrow from the mercer but she may borrow of her friend and  the ecclesiastical court will sentence her husband if in fault to pay to the  wife so much as his obstinacy cause her to borrow for necessary it will not  indeed suffer the mercer who be a stranger to come into the quarrel that be  not fit but it will enable her to pay for what she borrow yea and to retain it  too which the commonlaw as I say before can do equity seem to have extend the  rule of the ecclesiastical court prece in Ch and I p W cite in Bacon Abr title  baron and feme h see Fonb n h l oh but suppose the wife be a have wife shall  she starve shall she forfeit the alimony if the wife have elope she have not  forfeit dower before the stat of Westminster e c shall she forfeit maintenance  to that I answer The act of the wife shall not forfeit her alimony while she  be his wife but it may suspend it and it may lessen it if she will voluntary  go away without cause and stay away without cause the bishop may just refuse  to sentence alimony till she return and cohabit with her husband in that case  she must starve if she will keep her bumour suppose she have be faulty nay  suppose she have be convict of it and be divorce causan adultery yet she shall  have alimony but it must be like that Bridgman oh er p allow to a clerk that  be convict and deliver to the ordinary as you may see in the constitution of  Simon archbishop of Canterbury mention in Staundforde in ta et ta weekday  Elizabeth n Sabbath de bread pain et water narrow passage semel in die  caeterisque a day in bread et weak beer die yes Dominica near honor Self a day  et excellence de bread et beer et pulse the same so much modus ministre I mean  not in that strictness but yet her allowance must not be accord to the degree  of her husband but the quality of a Bridgman oh penitentiary and this very  reason alone be enough in my judgement to show that the commonlaw do not allow  this way of the wife provide herself alimony by take it up of the mercer and  try it by a jury for that in this suit for ware the jury determine only what  be necessary accord to the degree but not what be convenient and  proportionable to the merit or demerit of the wife and this bring I before I  pass over this head of the ecclesiastical jurisdiction to consider short of  the circumstance in our principal case as they be in the verdict which be  these on the one side first that the wife depart from her husband against his  will and so continue absent from he many year and second that after she desire  to cohabit with he he refuse but before I consider these circumstance the  insufficiency of the verdict itself in find they seem to I to point out how  improper they be for a jury it find that the wife depart from her husband  against his will but find not for what cause she depart it may be her husband  join with rebel and then her departure be justifiable it may be it be of a gad  disposition or disaffection to her husband person and that be unjustifiable it  find she desire to cohabit with he but be refuse to admit her but the cause of  this refusalis not find perhaps it be the husband fault at first that she  depart and that she live since inoffensive and then there be no cause of  refusal and perhaps she live scandalous and then there may be cause of refusal  all which particular will and may have be consider in a suit in the  ecclesiastical court for alimony but take the circumstance as to common  understanding they shall be take upon this verdict that the wife depart  without cause I conceive the husband have do nothing in refuse cohabitation or  alimony which be not justifiable by the ecclesiastical law and admit that our  law will in such a collateral suit as this take notice of the cause of alimony  which be proper for the ecclesiastical court they must take notice also of the  rule of the ecclesiastical law in such case as in other case where a  ecclesiastical matter or Marine cause come before we we judge accord to that  law ecclesiastical or Marine first when the wife depart voluntary from her  husband without cause and against his will and continue so diverse year she  break her promise make in fancy church to love cherish and obey he till death  her do part and without question it be in many respect both in relation to  herself and relation to her husband a great injury to the husband while  Bridgman oh she be in this condition she make herself no part of his family  she put herself out of his protection as my brother hide paraphrase it and  therefore he be not bind to maintain her as I conceive though there be nothing  prove in in injury chastity si self not common with others rashness without  offense husband sit extra consortium man non holding husband extunc ei extra  consortium suum existence food to attend to see for man to feed obligation  outstanding quoniam offense svan extra man consortium be e placita palti rot  parliament e No which be in the print volume I p ad n Margaret de camoys case  e which be touch c m ch Inst but be there misrecited be somewhat severe the  stat west c which be make in the same king reign e provides Si wife of one to  leave behind man suum et noretur cum adult to send away dowry svan c si super  hoc convictata nisi man swine of one et without coercion church she to procure  again the case there was She by her own and by her husband consent depart with  sir William paynell and remain with he during her husband life and a writ of  dower bring by her and paynell who she after marry the stat of west be plead  in bar though she offer to take issue that she do not in adultery custom to  draw and that she have also make her purgation before the bishop and so be  innocent in the judgement of the ecclesiastical court yet the exposition of  the statute lie the weight upon her spontaneous Bridgman oh er p departure  from her husband of one to leave behind man et abierit and because the matter  ad to seek after de adultery be not proper for the commonlaw nor ad curian  king to stretch out super adulterer search native land hegoat say the record  though the word of the statute be in adultery custom to draw they judge upon  the outward act the departure from the husband that it be sufficient to debar  her of dower that be contemporary exhibition but yet I take it to be bare law  the use that I make of it be that if the voluntary departure be cause to bar  dower I be sure it be pro tempore a cause to bar her of the privilege of the  family while she exclude herself out of it so by m Ch c the wife after her  husband death be to have her quarantine that be to live in the house forty day  and during that time to have the pure milk of reason estoverium de communia in  that case if the wife depart from the house within forty day my Lord Hobart in  colt and glover case say that she can return when she will and take her how  Bridgman oh rantine for the rest of the day and he cite e dyer for it but I do  not find the authority warrant it but certain it be so far law that when she  return admit she shall be allow estoveria de command for the remainder of her  quarantine yet she shall not be allow estoveria de command for the time she be  absent No more shall she by analogy of reason be allow alimony here for the  time of her departure but then the next circumstance come to be  considered that the wife desire to cohabit with her husband and be refuse to  admit her or to allow her maintenance whether now after this desire and offer  of reconciliation and his refusal she be not restore ad integrum to her right  of maintenance and in that case also take the case bare as it be find in the  verdict without other circumstance I think she be not restore ad integrum to  her right of maintenance in child v Hardiman Str Raymond c j seem to be of a  contrary opinion if the husband refuse to receive again the wife who elope  from that time it may be a answer to the elopement and see on this point Mr  Nolans note to Bolton v apprentice strange oh my reason be this by her  voluntary departure without cause the law will adjudge a fault and a scandal  commit si wife who offense svan recessera regret conducting ad man Of persons  not admilli she extunc wife offense make clean in man cross tenebiturque Self  seorsim habilanti food to but there it must be regret conducting and external  evidence must be give of that penitence to the husband and to the church it be  not enough to desire to cohabit but there must be if it be require  satisfaction to the church and satisfaction to the husband to wipe off a  scandal if the church shall desire it or to wipe off suspicion if the husband  shall desire it she may be and it be just she shall be put to her purgation as  it be in Margaret camoys case when that be do or if that be not require the  fault have be in the wife the law may require a caution from her in a case  where either party be faulty the law may require fit taking of precautions as  appear by the writ de caution admittenda If it be the husband he may be put ad  taking of precautions pignorariam or fide jussoriam ad to appear order church  f h f n b h that be by land security or by bind for the law admit the  ecclesiastical court to have getting to know de chief will allow they to take  security as a bind for put in a inventory or the like but if it be the wife  who be to give satisfaction to the ecclesiastical court yet she may be force  to put in fit taking of precautions such a one as she Bridgman oh can that be  taking of precautions juratoriam to swear she will to appear order church in  form law in that case so that suppose the wife be in fault for her departure  and long absence as I take it by way of admittance if her husband have refuse  cohabitation till be have have satisfaction the fault be not his when she have  offer to cohabit with he and he refuse she ought then to have apply herself to  the bishop as the common parent and have offer satisfaction and then if either  her husband have not require it or that require it she have give such  satisfaction as the church think sufficient she be restore ad integrum if she  fail to give satisfaction of her innocency yet give satisfaction of her  penitency and her husband will not absolve her the law will restore her though  not ad integran yet so far as to have such a proportion of competency as the  condition of a penitent person require and that be the proper method in such  case and be a further argument of what Bridgman oh er p I have be thus long  about to prove that be a proper adequate remedy in all those case of alimony  or maintenance for the wife whether faulty or not faulty in the ecclesiastical  court and that this new way of take up ware of the mercer and a trial by jury  who can judge proper of the merit of the case or commensurate the maintenance  of the wife proportionable to her innocency or gild can give a just remedy  therein it be object that we give by this too great a latitude to the  ecclesiastical court but it be to be presume that they be judge of the cause  will do that which be just and right especial in those case which be in the  peculiar audience of the bishop himself but if they shall exceed their power  the commonlaw have a superintendency over they and grant a prohibition but can  they grant a prohibition to a jury allow they this power to determine matter  of this nature they can put any bind upon they in it   Buntlings case en case  de leur conusance less judge de mostre lie doient donor foy el credit a leur  proceed el sentence I have do with this reason concern the remedy give by the  ecclesiastical court my last reason that the wife by the commonlaw by way of  contract can charge the husband not volens without his consent precedent or  subsequent be ab authority and that both negative and affirmative Bridgman oh  ab authority negative there be not one authority in any of the book of law  which make good the distinction that the wife who can as be confess agree  contract for necessary for her husband family to charge he without his consent  can yet by way of contract charge he for necessary for herself if the law have  be so in so many succession of year as have be since Henry the three time from  which time we have report of case print this law will have be express in some  of those book at least in some other authentic record before these late  trouble consider it be a case of every day practice that difference arise  between husband and wife it be Littleton argument upon the statute of Merton  if any such action may have be bring for this matter it shall be intend that  at some time it will have be put in use and the same argument be make use of  by my Lord dyer Litt S to prove that no writ of error lie out of the cinque  port dyer a pl and by my Lord coke Rep in corbet case there be but one only  authority pretend on the other side that be h by Martin the word be these si  man feme appromta do home et ill array melior and attaint a mon estate jeo ne  serra charge de payer cest appromtage comment and ill devie all oeps et profit  Le baron pur Ceo and la feme convient de necessity deal array mes pour Apelles  and el pass son estate Le baron ne serra charge hence they infer Martin  opinion that the husband shall be charge where the wife borrow money to buy  necessary apparel the case was William scot bring a action of debt for against  the abbot of fountain which he lend to one Roger his predecessor with which he  buy forty quarter of wheat which come to the use of the house the defendant  plead that this Roger be but a monk at that time though he be de facto install  abbot thereupon the question grow if he be a common monk and not a officer as  cellarer or the like whether in the vacation he borrow money with which he buy  good which come to the use of the house whether the house shall be charge  Martin think it come to the use of the house that prove not that this contract  of the monk will bind the abbot for if lie will borrow and build and do more  than the house will have the abbot shall not be charge yet it come to the use  of the house en mesme Le manner si man feme c so say be it be his folly to  make this contract with a monk that be no officer in the house Bridgman oh and  after the issue be where the say Roger be abbot at the time of the contract  this opinion can make nothing to our case unless you admit that the money be  take up by the wife when she have no consent or power from the husband to do  it and therefore it be strange that it shall be argue as a authority when they  that urge it will not say it be law unless it be admit that the wife in that  case have a general power from her husband for admit it be law that the  husband shall he charge for ware take up by his wife without his consent yet  that he shall not be charge for money borrow by his wife without his consent  to buy ware with be the opinion of Martin as they urge it for if the law  charge the husband to pay the money borrow by his wife as due upon a contract  or assumpsit in law it must arise upon Bridgman oh er p the very borrow of the  money and shall not depend upon the consequent effect employmg or not employ  the money aright which be not know when she borrow it so that the opinion of  Martin that the husband shall be charge to pay the appromptage as money borrow  as they will urge it be clear against the law as they themselves can deny my  brother Terrell foresee this and therefore offer a double answer to it first  that the appromptage or borrow here must not be understand that the wife  borrow money but borrow good which be so strain a construction and have so  much of impropriety as nothing can be more if the wife shall borrow good to  array herself then the good be to be restore not pay for but Martin speak of  the husband pay for the appromptage and the very principal case as also the  case which usher this in be express in borrow money to lie it forth in  necessary for the use of the abbey and of such a appromtage Martin speak  second say be upon Martin opinion the antithesis be between array for the wife  that be necessary and that which be excessive I agree it but it make nothing  for they unless the antithesis have be between the husband consent and dissent  neither of which be express or mention in the case but it be but a reasonable  supposition in the way of evidence if I allow my wife to be my housekeeper and  to manage those affair that the wife who have the management of the family  have also a general power and authority from I to buy necessary for it and so  for herself as part of the family So Lord Ellenborough in waithman v Wakefield  Campbell when live with her husband he be liable to any extent for good he  permit her to receive she be consider as his agent S and upon supposition of  such a general authority Bridgman oh Martin opinion be good law for she have  such a general authority if she borrow money and bestow it upon necessary  apparel the husband must pay the money borrow the dictum of Parker c j report  without any limitation in earl v peal salk be against this position and the  incorrect statement of Bridgmans argument in Keble where the discussion of the  case in h be dispose of in eight confuse line may have lie the foundation for  doctrine different from those which the genuine text here seem to warrant see  pre in Ch and Eq can ab p W Fonbl see also keb Siderf Bacon ab baron and feme  h note by the editor it be observable that the position be not adopt in comens  digest title baron and feme Q t but not if it be for apparel beyond her degree  for that be not within the general authority and the book Edward Det and and h  there cite be accord for other contract of the wife upon the like supposition  if the wife buy wheat which come to the husband profit this shall charge the  husband if the declaration be that husband by his wife have receive so much to  his profit and so in case of a servant r Statham he count that the defendant  buy of he forty sheep by one h his servant for S which come to his use and the  declaration hold good which case be put upon a presumption or supposition of a  general authority which the wife have otherwise they be clear no law but they  extend to other contract of the wife which come to the use of the husband as  well as to those for necessary or herself so that I take it clear Martin  opinion which be the only authority from our print book that have be insist on  if you will enforce it beyond the letter to extend where the wife have no  consent or general authority from the husband be not law and if you admit she  have such a authority from her husband it be good law but not to their purpose  who cite it as for the case which have be cite of sir Henry Compton the record  of that case be not produce et quod non law non credo though it be true as it  be cite it be not material for the husband assent a disagreement be not  mention in that case but as for authority positive on the defendant part it go  for a rule in law that the contract of a feme covert can bind her husband  unless she have a authority precedent or a assent subsequent the book have be  cite to prove this maxim Edward Det r Br contract Bridgman oh r account h Det  h h by Newton chief Justice F n b some of which extend to contract of the wife  for corn bread or other necessary for the husband profit or expend in the  household or to keep his house and Fitzherbert n b after all these authority  conclude express that the Bridgman oh er p husband shall be charge in debt by  the contract of the wife sil do authority a sa feme dachater et vender purluy  aulerment nient  If he give her authority otherwise not all which case I take  to be express authority and in the point for they prove the general rule that  the wife contract shall not bind the husband so c Com she be disable to  contract with any without the consent of the husband and if the plaintiff will  have a exception out of this general rule by distinction between contract for  necessary for her person and contract for her family onus to make good lie  upon he otherwise quod generally dictum without a exception must be generally  to come to know and they stand for so many authority in the point the case of  sir Nicholas Pointz Elizabeth seem to I notwithstanding all that have be say  more than a bare authority debt be bring by the executor of Wheeler against  sir Nicholas Pointz and declare upon a to buy of silk and velvet upon a non to  hold off plead upon evidence it appear that the lady Pointz without the assent  command or will of the husband buy the ware for her apparel the mercer know  she be a feme covert and deliver the ware to her tailor upon credit sir  Nicholas pay the tailor for make they and other clothes for himself and after  the tailor require money for the mercer which he refuse to pay upon this  evidence the defendant will have demurrer but the jury be charge and at their  return the plaintiff be nonsuit and the jury affirm that they will also have  give their verdict against the plaintiff yet multum doubt ind say dyer what be  this doubt not whether necessary or not there be nothing of that in the case  silk and velvet be not unfit for a lady nor whether the contract of the wife  can charge the husband without his consent for nothing be touch of that in the  case and so not within the ind to waver in opinion but the doubt be whether  this payment by the husband to the tailor who make the clothes of those ware  take up of the mercer be not a assent of the husband to the contract with the  mercer for the thing themselves but it be take for grant by both one and the  other as undeniable that the action will not lie if there be no assent  Bridgman oh at all of the husband in the case otherwise that point whether  assent to pay the tailor be a assent to pay the mercer will not have come into  the question it have be urge that the practice for these last twenty year have  be that the mercer shall recover in such case and that they before who it be  adjudge get their knowledge in the best of time though unhappy they come to be  judge in the worst first admit the practice to have be so they must remember  that the coercive power first as the stat car be expound and after that all  power of the ecclesiastical court root and branch be then take away see stone  v Walter appendix p and so necessity make it more excusable in those judge if  where they find no remedy they make one especial when there be not then nor  like to be any legal parliament consist of a king and two house of parliament  to have by a new Act of parliament supply the defect it be upon the same  ground they allow suit for legacy at the commonlaw and that upon a elegit they  adjudge the sheriff may extend ecclesiastical tithe which be contrary to the  commonlaw before as you may see f n b c m ch car b r rot Harwood and Paytons  case Harwood v paty or Payte sty hard v but the reason in both case and so  open pronounce be because the bishop and ecclesiastical court be take away it  be upon the same reason that within this twenty year the privilege of peer be  take away and they make subject to arrest and burn in the hand because the  peer be exclude the parliament will you allow these opinion to be law now  because of the practice then in this case of alimony the opinion of a  commonlaw remedy even in those time be so unsatisfactory that by a special  ordinance of parliament they give jurisdiction to the chancery in such case  but second I must distinguish between the practice of guildhall and  Westminster hall even in those time it be indeed the practice of guildhall for  some time where it be make questioning fact non law and the practice in some  case become a grievance while the business be bandy between the wife the  mercer and the jury who be tradesman but be there in that time in Westminster  hall any judgement upon demurrer or special verdict or any other proceed where  the point of law come judicial before they I know it in my own experience in  that time Bridgman oh er p diverse be advice to procure special verdict or to  demurrer upon the evidence that the matter may be determine at Westminster  hall so little do the authority of the practice at guildhall prevail to settle  Bridgman oh the law in the point and this very special verdict be find in that  time yet I confess these case of charge the husband by the contract of the  wife or the master by the contract of the servant for the most part consist  more of matter of evidence than of law wherein lest there shall be any mistake  I shall deliver my opinion in both case of a servant and wife I lie it for a  ground they can charge the husband or master further than they have a  authority precedent or consent subsequent but how far that authority or  consent be give be the matter of fact and proper for a jury in a action  against I S upon a contract by his wife a servant for ware or corn c if it be  give in evidence that the wife or servant buy the like before upon trust and I  S have pay for it it be a presumptive evidence I S give authority to this  contract also and the court will give direction accord as in the case ass pl  but in case of a feme covert I may go further though there be no imply  authority create by law that she may take for necessary for herself as my  brother who argue for the plaintiff say or for her family without her husband  consent yet I may reasonable presume a authority in fact if the wife take up  necessary for her family or for herself as part of her family for it be usual  that the wife have administration and management of these household affair and  the scripture command that the wife guide the house time v and in such a case  if a action be bring against the husband for good so take up by the wife for  the family it be in itself prima fancy a good evidence against the husband of  a authority in fact give to the wife that the wife take they up and that they  come to the use of the husband if nothing be prove to the contrary but it be  but a presumptive not a conclude or bind evidence for if the husband in such  case shall prove that at that time he have a steward of his own appointment  who have authority to provide all thing for the family and usual do so or that  he prohibit his wife to take up or that mercer to trust her this take off the  presumptive evidence of a authority but in case of a servant at large his take  up of ware as I Bridgman oh conceive be no such presumptive evidence of his  authority but you must either prove direct the authority give or a presumption  of it by some other act as payment for what the servant have so take up before  or come to the use of the master by his assent or the like though a general  declaration be good in such a case d et saint r Statham contract ass pl h  contract h compare they together if a feme covert live with her husband and  take up mercer ware for herself or child in a orderly ordinary sort and not  extravagant in a action against the husband I shall not doubt to direct the  jury to find for the plaintiff if nothing else be prove in the case for I  shall presume that there be a authority give by the husband to the wife to do  such thing as be thing usual permit to the wife managery and that it be not to  be presume that the wife will do it without the husband privity or allowance  but if the wife shall leave her husband and family and live of herself or as  in our case depart from her husband against his will and take up ware from the  mercer this appear in evidence the presumption of fact cease in such case I  conceive a judge ought not to direct a jury to find for the plaintiff but if  by plead demurrer upon evidence or special verdict in any of the case it shall  be acknowledge or find as it be in our case that the husband give no allowance  to the wife contract neither by command or authority precedent nor by consent  subsequent there be no place leave in presumption of a authority in fact but  judgement shall be give against the plaintiff upon the whole I conceive in  respect of the incapacity of the wife to contract without her husband her  inability to retain what she contract for the mischief and inconvenience which  will ensue if she may by her contract charge her husband the congruity  fullness and adequateness of the remedy in the ecclesiastical Court the  novelty of this way of supply of alimony by take up ware by the wife against  the husband will not back by former authority or practice in good time and the  stream and current of the book and authority in law run encounterthat  therefore the wife can by the commonlaw of the land in any case by way  Bridgman oh er p of contract charge the husband for ware by her take up not  volens without his appointment or direction precedent or consent subsequent I  be now come to consider of the objection on the plaintiff part against this  opinion the first be this by the commonlaw the husband be bind to maintain his  wife and therefore maintenance be Bridgman oh due by the commonlaw the  commonlaw which create a duty will create a remedy by the commonlaw this  argument be ground on a pure fallacy first for the proposition itself that by  the commonlaw the husband be bind to maintain the wifeit must be agree that  the husband be bind to maintain the wife but this bind be not by the commonlaw  but by a superior law the law of God of natureof reasonthe consent of all  nation the commonlaw which be make up of the quintessence of reason allow that  which the law of God of nature of reason appoint but the lie or duty itself  proceed not from the commonlaw again when you say by the commonlaw the husband  be bind to maintain the wife and therefore a remedy be give for it by the  commonlaw I conceive by the word bind be mean that the husband be by the  commonlaw compellable to maintain the wife if you I a by the commonlaw as it  exclude the ecclesiastical law of the land that he be compellable I deny the  proposition it be petitio beginning if you take in the ecclesiastical law in  the proposition you must take it also in the consequence and then it be true  but nothing to your purpose I will make the very same argument in all  ecclesiastical cause whatsoever by the commonlaw tithe ought to be pay church  ought to be repair will ought to be prove adultery ought to be  punished therefore do the commonlaw give a remedy in these case this be  neither good logic nor good law the truth be the argument be a pure fallacy  and it have at least quatuor boundary in it second but the great objection be  that not natural fenugreek necessitate in the imperfect argument be the follow  passage on this point as for the argument from necessity it hold not in this  case public necessity indeed may take away private property from another in  some case though let I tell you the argument from necessity be the worst kind  of argument but private necessity can do it for so a man may justify steal of  meat or corn because else he shall be starve the argument of a equity arise  out of public necessity be in vain urge to sir Orlando Bridgman when Lord  keeper in in the case of the banker who the stop of exchequer payment deprive  of fund to meet the demand of their customer the proceed in chancery do not  appear to have be publish in any of the print report the case be thus notice  in a manuscript in the possession of the editor mich in a case touch the  banker who pray equity upon their great debt due from the king which he have  postpone by order of the privycouncil Mr attorney cite this case that in the  time of e when there be a war between the king and the scot where the enemy  enter and destroy the country in the north for diverse year so that the lord  have no rend or service and the lord bring cessavits there be a injunction  under the great seal in such case for the tenant Keck cite a case where there  be a war between England and Denmark the king of Denmark confiscate the good  of the English merchant there and the debtor pay the debt there and after the  creditor sue for the same debt here and a injunction be grant here and Keck  say this court be a court of state as well as of law skinner ms fol the case  be thus notice by Roger north before that time there come some shrew  difficulty to be get over one be a injunction to be grant in chancery to stop  suit at law against the banker upon public necessity the Lord keeper Bridgman  prove restive on this point north examen p Lord Shaftesbury succeed sir  Orlando Bridgman and grant the injunction but within a short time dissolve  they see on this subject the mayor of London v Bennet c r Mitford on equity n  p and the evidence of sir S Romilly before the committee of the house of  Commons on the usury law see also Basil v Atcheson Br p c vo edit as to  abatement upon mortgage contract in Ireland on account of rebellion or other  public calamity happen to the estate in mortgage in Turnours treatise on the  shut of the exchequer in p c be some important ancient precedent on the  inviolability of private right and property in time of the extreme public  danger in p turnour remark that the civilian also do evermore chain up this  voracious lion of necessity with the hard and most strong restriction in p of  this case of Manby v Scott sir Orlando Bridgman approve of even a judge yield  to a suppose inferential necessity in the application of legal remedy see  appendix I p wonder all that be Bridgman oh er p require say they be necessary  pro Bridgman oh victim et vestituher husband deny it to her he can direct  murder her by law but shall he starve her she want for the present she may  perish if she stay till she can have alimony decree to her orher husband be go  beyond sea and have not leave her sufficient provision shall she take up on  trust or shall she starve a infant be allow to take up necessary in such  cases shall not the wife much more in answer to this I must observe those who  have argue this case on the plaintiff part have argue the case as if it be of  a extreme invincible necessityet jam jam vincent undisthe wife ready to famish  for cold or hunger and nothing require for her but quoad be whereas our case  be only concern convenience and not those neither general but suitable to her  husband degree so be the record that the ware be necessary for her and  suitable to the degree of her husband we have be teach at the university that  TO TPETOV that which be convenient and AVAYKALOV that which be necessary are  several topic necessity and conveniency be in some degree opposite though they  be not contrary they Bridgman oh be whole disparate so that in truth the  argument from extreme necessity and danger of life come not in our case but  then take the case to be of such extreme necessity as they put itthe very same  case of necessity which they put of a wife I can put of a child that ought to  be provide for by the father of clothes or diet it want these necessary and a  stranger provide them shall the father be charge yet he be by law bind to  maintain his child I will put my brother Twisdens own case a child in the  father absence come by a hurt the wife send for a surgeon and cure it say he  shall not the surgeon recover against the husband if the law create a contract  the law charge the husband in that case upon the wife send for the surgeon say  be by the same reason it shall charge he if the wife send for necessary for  herself I will answer this first by ask another question suppose the wife have  not do this but a servant have send for a surgeon for the child shall the  husband be charge to pay the surgeon or not if you say he shall then there be  no difference in this case of necessity in the contract between the wife and  the servant and so it be not to the purpose if you say the husband shall not  be charge in that case I say by the same reason no more he shall where the  wife send for the surgeon nor shall the child as I conceive be charge in such  case but to give a direct answer to the point I hold if the surgeon be send  for and cure the child whether he be send for by the wife or by a servant it  may or may not bind the husband as the circumstance may be but where it bind  he it bind he not as upon a imply contract in law as they who argue for the  plaintiff will have our case to be but upon a contract in fact or so presume  that he give authority to the surgeon to do the cure or the wife or the  servant to send for he if the husband have be at home and forhad the send for  the surgeon or he have procure another surgeon and this surgeon meddle with  the child against his will shall this surgeon recover in a action upon the  promise against he nothing less which show it be not a imply but a contract in  fact that bind the husband and the same law it be if the wife have be wound  and a surgeon have be send for to the wife herself there be no doubt of it  such may be the circumstance of the case that the husband or the father may be  deal withal criminalite and severe punish if be do not his duty but be wilful  and negligent in such case and so there may be debt is owed ex fault but you  can in such case make a debt ex shrinking to charge the husband which be the  point in question Bridgman oh so it be if the father go beyond sea and  necessary be take up for the child the father can be charge by way of contract  unless there be a authority give by he Bridgman oh er p a difference have be  endeavour to be make between the necessity of a wife and of a child if it be a  child not able to get its live by reason of infancy or impotency I see no  difference in reason the man be bind by the law of God and man to maintain  both wife and child but yet there be more colour why the husband shall be bind  by the commonlaw to maintain his child than his wife for that the wife have a  remedy for maintenance by the ecclesiastical law but the child have none at  all it be clear the father be not Chargeable at the commonlaw to maintain his  child otherwise than as the late statute for the poor have provide Elizabeth c  except inasmuch as by the law of nature which be part of the commonlaw  maintenance be due to the child from the father Raymond cite Bl command I b c  a principle recognize in decision see Bacon maxim Reg ld raym Waltham v spark  and under this sanction the court of chancery seem to have always hold the  father bind to support the child but see the case of Mendez de Breta ld raym  and king v Monday cite in the marginal note to Elizabeth c S viner title poor  a ten but take all for grant that there be such a extreme necessity and that  therefore the commonlaw must provide in such case for the wife then as I say  before the consequence be not that the wife may take upon trust that depend  upon a mercer charity whether he will lend upon trust and be no more than to  have a remedy to live upon the charity of her friend till maintenance can be  recover from the husband but it be a more natural consequence that the wife  may in such case of necessity take her husband clothes or good and pawn they  and his money and lie it out for the law of absolute and invincible necessity  provide for thething which be necessary in specie and give not time to bring a  action for it and Bridgemans case cite by my brother out of Hobart fol ill  that the master of a ship though he be no owner of the ship may pawn the ship  in case of necessity will rather prove that she may pawn her husband good than  take of a stranger but that very book say that power of impawning be by the  civil law and against our law and so it be clear against law that the wife  shall impawn her husband good or take his money without his consent to lie out  for necessary but last the ecclesiastical law provide a remedy upon the  complaint as I say before let it appear she be his wife Bridgman oh and  maintenance be immediate allow her mensatim or hebdomatim pendent light as for  the case of a infant it have be full answer already his case differ from that  of a feme covert in these four particular the infant of the age of discretion  be not a person disable to contract as the wife be his actual contract if for  unnecessaries be but voidable he contract for himself and not for another he  charge himself and not another but a feme covert be disable and the contract  of a person disable be void as the contract of a monk during the vocation if  be be not the prior or officer be void h in case of a idiot though it have be  say by stat g c the marriage of a lunatic be declare to be void be so find by  commission see turner v Meyer I haggard that that a idiot may contract  matrimony yet that be not a evidence to prove that he may make a civil  contract but the ground of that contract conjunction maris et fminae be by the  law of nature and the matrimonial contract find upon it be a spiritual  contract and in case of such natural defect of reason be dispense withal but  treatise of equity b I c S and Mt Fonblanques note z I hold a civil contract  though for necessary by a idiot after he be find by office to be a idiot or a  lunatic after he be find by office to be a lunatic be void nay even in the  case of a infant though it be for necessary if he be of tender year under the  age of discretion and under a guardian who receive the profit of his estate  under favour of the opinion of other I conceive he can be charge by a contract  for take up necessary and therefore I can approve of the late course which  have be take by some of arrest infant put out to school for their board or  school by their guardian Bridgman oh er p or parent as legal or justifiable in  Duncomb v Tickridge alein m car b r publish in it be attempt to charge a  infant for diet lodging and apparel although the contract be make on behalf of  his mother but roll decide that if another undertake to pay for a infant board  this express agreement take away the contract to be imply when the infant come  to a stranger to board in Bainbridge v Pickering Bl Rep it be decide that if a  infant life with a parent who provide such apparel as appear to the parent to  be proper so that the child be not leave destitute of clothes or other real  necessary of life the child can bind herself to a stranger even for what  otherwise may be allow as necessary aa if then under the age of discretion  they be not liable at all if above that age yet be infant and put forth by  those who have authority or command over they I think Bridgman oh they shall  not be liable upon a contract suppose in law to be make by themselves when  there be a actual contract by their parent or guardian now a feme covert if  you will needs compare her case to a infant though it be visible different she  be sub custode they be the word of Bracton lib vide c c under a guardian and  such a guardian as receive all the profit of her estate and therefore be  disable to contract for herself for necessary the next objection be that the  ecclesiastical court give not a sufficient remedy for the wife for alimony it  reach not to the husband good or land they can grant a sequestration if he  will lie in prison be render the suit fruitless and the statute of James c  take notice that diverse person of sufficiency have obstinate and wilful  choose rather to live and die in prison than to make any satisfaction accord  to their ability and his imprisonment give neither clothes nor victual to the  wife to this I answer first process of excommunication and excommunicate to  take in hand have be the process in all cause ecclesiastical if there have be  a defect in that process it have be so in all age and in all cause  ecclesiastical most of which be of as great concernment as this of alimony and  if there be a defect in it it be to be remedy by Act of parliament and not to  find out a new remedy for it at the commonlaw that be in the consequence to  take away to the commonlaw all ecclesiastical cause a child have a legacy  leave by the father will it be all its subsistence the executor will be  excommunicate and lie in prison rather than pay it shall you therefore sue for  a legacy at the commonlaw but second you have here both excommunication and  imprisonment you bind his body and you bind his soul our own author Bracton  and the rest say he have leprosy in anima and cum excommunicate nec to arise  nec to speak nec openly nec abstrusely nec thin licet  C c he that know former  story will find that excommunication be not account bride fulmen and you bind  his estate too for a excommunicate person can sue for any thing due to he or  detain from he be your remedy at commonlaw more sue for a debt at  commonlaw the defendant be refractory and upon process before outlawry render  himself to prison and will not appear the new statute car have give some  remedy to force a appearance had you any before as in this very case the  plaintiff sue he in the king bench if the defendant have be refractory and go  beyond Bridgman oh sea or keep himself out of the way of arrest had you any  remedy upon his land or good certain if he will lie in prison rather than pay  his wife he will do so rather than pay the mercer well but suppose you get a  appearance and so at length you reach his good or land can you binder he from  make away his good and landsbefore judgement if you do prevent he in this  action which extend only to maintenance past can you binder he to do it for  the future and if be do what mercer will then trust the wife if you say it be  not to be presume he will sell his land and divest himself of all andexuere  native land I say so too but it be the same reason to presume he will not lie  under excommunication and imprisonment and lose the comfort of life rather  than allow a small pittance for his wife maintenance and this be my three  answer as there be quaedam postulata in all other sciences  so there be some  ground and principle upon which all law be bottom and be not to be argue  against it be to be presume every man love himself he will not Bridgman oh er  p pluck out both his own eye to pluck out one of his neighbour this principle  be the foundation of all external obedience to the law I speak not of the  conscience or internal obedience to the law that be the reason a man will not  steal another man horse or break his house because be fear a great hurt to  himself by it than what be steal will be advantage or he will not kill another  upon revenge because the fear of danger to his own person by hang for it  outweigh the sweetness of his revenge this be the general case and the law  which be make ad she who often to fall upon go upon this ground and be most  just although there may be some irregular person who break these rule and will  kill another though they be sure to hang for it so in this case it be not to  be presume that the husband will lie in perpetual prison sub salvo et to shut  up custodian without bail as he must who be imprison upon a excommunicate to  take in hand and be debar a communion trusty and not be able to bring a action  to recover his right or rend detain from he nor to have Christian sepulture  all which be punishment of one who life and die excommunicate I say it be not  not have be insert in this place bb to be presume that the husband will incur  all these rather than allow his wife a competent maintenance out of his estate  and deprive himself of the comfort of his life and residue of his estate  rather than allow her a small share of it for her necessary support which the  law of God and man and his own solemn vow at his marriage oblige he to  Bridgman oh oh but say they it be not to be presume that the husband will not  be refractory and lie in prison for the stat of James take notice some will do  it I answer that statute say only some will lie in prison not the great part  and though it take notice that in some case the fact may be against the  presumption of law yet it alter not the rule upon the presumption of law that  very law leaves the imprisonment to be a sufficient satisfaction during the  life of the party imprison which it be not otherwise than as it presume a man  will pay his debt rather than lie in prison but the Act provide only after his  death for a new execution a collateral warranty bind upon a presumption in law  that the ancestor will not bar his heir by his warranty but he will leave he  as good a advancement the statute of Gloucester take notice some tenant by the  courtesy without leave asset will bind their heir by their warranty and  provide against it doth this take away the presumption of law in case of  collateral warranty by tenant in dower or other ancestor if a man shall be  attaint of felony or treason what remedy have the wife for maintenance or the  creditor for the debt due to he and yet there have be instance that a man have  confess a felony to avoid payment of his debt shall this take away the  presumption of law that a man will pay his debt rather than be condemned to  die to deny the force of presumption of law in such case be to say no  principia and to overthrow all law there be one more great objection that  is if in this case the husband can be charge by the contract of the wife for  necessary take up for herself from the mercer without his consent then the  husband may be charge in a action of trover and conversion for the contract be  void the mercer ought to have his ware again or satisfaction for they et in  vain direct prohibitur quod ex to turn aside become to be able to this I give  a double answer first I conceive no action of trover and conversion will lie  against the husband and wife in this case it have be long a quaere whether a  action of trover and conversion will lie where there be a lawful possession by  bailment because of the variance between the action which be a trover and the  evidence which be a bailment this be not settle till isaacs and clerk case  Trin James b r rot more Rep when it be adjudge upon a special verdict it be  good enough for the trover or bailment be not the cause of the action but the  conversion and therefore if I deliver good to another to keep or to redeliver  upon request if upon request he refuse a action of trover and conversion  Bridgman oh will lie so in case they be give in pledge or upon condition and  the pledge be redeem or the condition perform upon demand and refusal a action  of trover and conversion will lie nay suppose a feme covert as feme sole or  not know to be a feme covert take up ware of a mercer or good for the use of  her family her husband not agree to it in this case a action of the case lie  for the deceit and peradventure I say peradventure only for that come not now  in question a action lie of trover and conversion for Bridgman oh er p the  contract be void as a contract and there be ignorance fact more Tompson and  gardener and in all those case the state of the case in point of fact be alter  from what it be or be understand by the bailor to be at the time of the  bailment or delivery of the good but when the mercer deliver good to the wife  know her then to be a feme covert as it appear by the verdict in our case he  do the husband have prohibit he to trust her to this very intent that she  shall make use of they this I take to be a gift in law for the owner intend to  transfer his property and that the ware shall be convert to the defendant use  and though it be a void contract and the mercer intend to sell they and not to  give they yet still the property be alter by his consent and his ignorance be  not ignorance fact but law which excuse he not and no action of trover and  conversion will lie in the case for a action of trover and conversion suppose  a wrong do and here be no wrong do but that which the wife do in receive the  good and in the conversion of they be by the consent of the mercer who do know  the state of the fact that she be a feme covert and be presume to know the law  that she can not contract I may resemble it to the case at commonlaw e   the  lord demand a heriot the heriot deliver the best beast in which he himself  have property in his own right to the lord this amount to a gift in Brisbane v  Dacres taunt sir v Gibbs c j say there be a case of money pay under distress  for stand in a market though the party have no right to distrain the money can  not be recover back cc a man put clothes upon the image of a saint be intend  only to adorn it yet because it be a gift in law for so the law be then take  he can take they away again and his ignorance of the law shall not excuse he h  l the warden of the friar minor take away a young boy from his parent and  cloth he or a man take away another man wife and apparel her the father or  husband shall take they Bridgman oh away with the apparel it be a gift in law  and our case differ as I say before from those other case of bailment if good  be deliver to keep or to be redeliver upon request and refusal to deliver they  the state of the fact be alter the keep they be to secure the discharge of the  pledge or performance of the condition where the good be pawn or the discovery  that the woman to who the ware be deliver be covert whereas be take her to be  sole alter the state of the fact between the time of the bailment and the  action bring if a infant of the age of discretion take up ware which be not  necessary this be but a voidable contract but if he will avoid it in part it  shall be avoid in the whole and in that case peradventure the case be alter  after the bailment of the good a action of trover and conversion will lie but  here there be no alteration of the case from what it be at the time of the  bailment the mercer know at first she be a feme covert and yet consent to the  alteration of the property of the good but second admit a action of trover and  conversion do lie in our case yet the mischief be not so great as it will be  if the mercer can bring a action of debt or indeb ass for the reason be not  the same where the action arise only ex shrinking of the wife against the  husband as in our case and where it arise ex fault of the wife as it do in  trover and conversion where the action of trover and conversion be against the  husband and wife the husband name be put in only for conformity to the law if  the wife die before judgement the action be go when judgement be give it be  against both the wife may be imprison and take in execution as well as the  husband and if she survive she shall be charge alone and his executor free and  therefore in all reason where she charge herself as well as her husband she  will be more cautious than she will be when she charge her husband only and  not herself but there be another difference between the case admit the mercer  can charge both husband and wife in a action of trover and out of partiality  of affection will charge the husband only for the ware yet he can do it but  once if the mercer once charge the husband and wife in trover and conversion  for ware deliver to the wife without the husband Bridgman oh consent if be do  it a second time it be a argument of the mercer consent to have it so and so  it be no tortuous act in the wife to take the ware from the mercer but a  evidence of fraud and combination between the mercer and the wife to charge  the husband who the mercer know not to be consent and no action of trover and  conversion will lie if the conversion be not tortuous Bridgman oh er p be by  the mercer consent but if the wife may take up good front the mercer and by a  imply contract in law charge her husband the same law that give her power once  in case of necessity will do it always in case of like necessity pretend so  that admit that a trover and conversion will lie in this case yet it follow  not that the husband can be charge by this action upon a assumpsit ground upon  a contract the last objection be that which be make by my brother Twisden  these ware be take up in when the ecclesiastical court be de facto take away  and the Act of car take notice of the clause of car whereupon doubt be make  that all ordinary power of coercion and proceed in cause ecclesiastical be  take away and provide against it and therefore there be no remedy in the  ecclesiastical court when these ware be take up there ought to be a resort to  the commonlaw but this receive a clear answer for the law be the same then  that it be now only force and tyranny have stop the voice of it that it can  not be beard the ecclesiastical court de jure have then their existence though  there be a obstruction in the administration of that justice there and the Act  of car create no new law but it be declarative only that the Act of car  neither do nor shall so be the word take away the ordinary power or authority  but that they way exercise all manner of ecclesiastical jurisdiction and all  censure and coercion appertain and belong to the same in as ample manner and  form as they do or may lawful have do before the make of that Act of car so  that in the eye of the law this power be then in be in case that have a  determination before his majesty happy return the Act for confirmation of  judicial proceed have its operation and supply the defect of legal power in  other case not provide for by that Act we be to consider not what be practice  then as law but what in truth be law if a legacy be due by a will make in  those time you must sue for it now in the ecclesiastical court and not at  commonlaw and so in this case we be now to judge accord to what the law be at  the time of the judgement and not accord to the misinterpretation of it in the  time when this action be bring Bridgman oh so that have as I conceive answer  all the objection make on the plaintiff part upon the whole I do conclude in  respect of the incapacity of the wife to contract without her husband her  inability to retain what she contract for the mischief and inconvenience which  will ensue if she may by her contract charge the husband the congruity  fullness and adequateness of the remedy in the ecclesiastical Court the  novelty of this way of supply of alimony by take up ware by the wife against  the husband will not back by former authority or practice in good times and  the stream and current of the book and authority in law run encounter that  therefore the wife can by the commonlaw of the land in any case by way of  contract charge the husband for ware by her take up not volens without his  appointment or direction precedent or subsequent consent and so my advice be  that judgement ought to be give for the defendant justice hide object against  the verdict that it appear not what the ware be for which the indebitatus  assumpsit be bring nor whether it be for apparel nor how it be for necessary  whereas what be necessary and what be convenient be to be try by jury but the  difference be between a special plead there what be necessary or convenient or  reasonable be to appear to the court Fawcett against barber cro Elizabeth in a  action of detinue for a horsethe defendant justify for a estray and the  detainer of he for his pasturage he ought to set forth in certain what it be  reasonable worth so in pilkington case   he that plead tender of amends before  the cattle impound must show what amends he tender that the court may judge of  the reasonableness of it so   if the question come whether a fine for a  copyhold be reasonable it shall be determine by the opinion of the judge  before who the matter depend either upon demurrer or upon evidence to a jury  upon confession or proof of the annual value of the land whether the fine  demand be reasonable or not but upon the general issue plead as here non  assumpsit the particular be but matter of evidence and need not be set forth  in the declaration for the point of the action be whether the defendant  indebitatus do assume and in the evidence what Bridgman oh er p the ware be or  whether necessary or no come in but oblique and it shall be suppose that the  particular appear in proof and that they be necessary the court direct the  jury and if it have be otherwise the defendant may have demurrer upon the  evidence and we be to judge Bridgman oh only of what the jury doubt which be  not whether the ware be necessary but be necessary whether be take up without  the husband consent the husband be in law bind by the wife contract in page of  No of the manuscript there be what in the title be state to be a imperfect  argument of use only as to the contract by servant not touch in the other  argument deliver in the exchequer Chamber it be obvious a sketch by sir  Orlando Bridgman himself and it seem proper to be publish so far as to  introduce the analogy between the relation of husband and wife and those of  master and servant hark ms No fol for the matter in law I be by the consent  the other judge themselves deliver their opinion in this case contrary to this  apparent expectation of sir Orlando Bridgman dead of my brother of the common  bench and exchequer for who advice this case be adjourn hither out of the king  bench to deliver our concurrent opinion upon the first and general point  wherein we do all agree in the matter of law against the plaintiff and  therefore the two other point not speak to at the bar and be to be argue only  upon admittance of the law to be contrary to that wherein we do agree no  opinion have be give therein by my brother nor shall I say any thing of myself  in the form of a sentence but only that it be not to be take for grant that  those point of the husband his forbid the plaintiff to trust his wife or  concern the allow of her maintenance after her departure against the husband  will be overrule there be that in they which may deserve our present  consideration if we have not be unanimous in the other point for as to the  first the forbid the plaintiff to trust the defendant wife if necessity do  make the wife contract for apparel good against the husband yet there appear  no necessity that this contract must be make with the plaintiff and therefore  it be to be consider whether the defendant forbid they to trust her do not  stand good as a prohibition unless it be find by the verdict that she can not  take it up of any other person which be not find for perhaps he may have just  cause to except against they for unreasonable prince or have ware or ill usage  former if my servant have be former employ to buy mercery ware or Bridgman oh  other thing for the use of my family if he buy still continue my servant I be  bind by it but if I prohibit the mercer to sell to he the power which he have  in law cease if he trust he contrary to this express prohibition and it shall  not bind I for other be to hold before other non to dedicate e Br contract it  bind not if the servant after a countermand to he give do buy by the same  reason if the mercer after a countermand to he give do sell I say this may be  urge but yet it seem to I in our case of a feme covert that this point fall  into the main question for if the law will create a debt upon the wife take up  good against the husband will to charge the husband the prohibition precedent  I think can alter the law and it differ from the case of a servant for a  servant contract be suppose good upon a authority give by the master himself  which may be recall but the wife admit the law to be with the plaintiff upon  the main point be suppose to act upon a authority and contract make by law  which the act of the party can prevent but we do all agree upon the main and  general point lie aside the consideration of all other circumstance in the  case that if the husband do not allow to his wife necessary as apparel or the  like and she take they up upon trust the husband be not Chargeable to pay for  the same I shall very brief deliver the reason thereof and incidental answer  the reason to the contrary the reason be these the commonlaw of the land allow  no contract make by the wife to bind the husband when his consent be not have  to it either precedent or subsequent but dly the ecclesiastical law which be  also part of the commonlaw in a large sense though it extend not to make good  such a contract for contract Bridgman oh er p be of temporal conusance yet it  provide a remedy for the wife when the husband will not allow her necessary  for the first by supposition of law the wife ought to be sub potestate man et  control et gubernation man they be word of the writ of supplicavit f n b query  f n b and she be not Himself law if she make a contract or agreement without  her husband if it shall be good in law it must charge the husband and the law  think it not reasonable that he shall be charge with any contract of his wife  without his own consent our book be full in this point r ass r Br count e Det  h and h Det h per Newton v n Br note that sometime a man shall be charge upon  a contract by his wife bailiff or servant or such other person as when my  bailiff buy sheep or other thing for my use I must pay that debt and the  plaintiff be not bind to show in his declaration that the bailiff have  authority to buy for I but I be liable inasmuch as the thing buy come to my  use d t r but accord to Newton if my servant or wife buy any thing I be not  liable although this come to my use afterward but if the thing be original  contract for to my use then I shall be liable if it come to ray use quaere of  this difference h h la vieux naturan narrow places a b Edward ff Bridgman oh  which book prove that the contract of the wife though for corn bread or other  necessary which come for the profit of the husband or be expend in the  household or to keep his house as the book of h and v n Br be shall not bind  the husband unless he have give a general command precedent or afterward  assent to it as in case of a servant and f n b g after all these authority  conclude express in case of a feme covert as in case of a servant the husband  shall not be charge by the contract of the wife if he give her authority to  buy and sell for he auterment nient nay the old book be so clear on this point  that it be long a doubt if the wife buy thing if they come to the use of the  family but upon the emption or contract it be not express that they be buy to  the use of the husband whether it be good though the husband do afterward  assent as suppose it a void contract ab beginning so be h and h and v n Br  make a query of it see note ff above gg but the resolution of Tathams case h  that the agreement of the husband after make it in law a agreement with he  settle that doubt and so it be also agree in tailor and pratt case in  Elizabeth b r cro a agreement or gift by the wife be good if the husband  assent to it so in case of a servant dr and saint if he make a contract in his  master name the contract shall not bind his master unless it be by his master  commandment or that it come to his master use by his assent which prove that  if they come to his use and not by his assent it bind not but though the law  make the wife contract good upon the husband assent to it yet it make it good  not as a contract or gift of the wife but as the contract gift or agreement of  the husband and so it be say express by Fitzherbert in Tathams case h fol for  to say true what the wife act in such case be not proper as a wife but as a  servant and our book which put the case of a contract by a feme covert at the  same time put as parallel the case of a servant or monk who be but as a  servant under his sovereign Bridgman oh and this afford I another reason why  the wife contract for necessary for herself bind not her husband for what she  do as a contractor she do as a servant if a contract be make by a servant  which bind the master whether he consent before it be do or after yet the  declaration in debt or in a action of the case upon a assumpsit against the  master must be upon a supposal of the contract to have be make by the master  himself and if in the action against the master the declaration be lie  secundum reality fact that the servant contract for the ware or good it be  nought for it be the master command or assent that give this influence to it  and make it his contract one bring a action of debt against another for wool  sell to he by the plaintiff servant the defendant offer to wage his law the  plaintiff refuse because the contract be make by his servant and in this  action he have declare that the servant sell the wool green the judge who give  the rule say we intend Bridgman oh er p you count as by law you ought that you  yourself that be the plaintiff sell the good for otherwise you have no cause  of action against the defendant but a action of account against your own  servant and therefore because the plaintiff refuse the law judgement be give  against he r Statham and as it be in the case of a contract by a servant so it  be in case of a contract by the wife which bind the husband either in respect  of his command precedent or subsequent assent to it if a action be bring by or  against the husband upon such a contract the declaration must be of a sale by  or to the husband or a assumpsit by or to the husband and so it be in our  principal case here for necessary for the wife the declaration is That the  ware be sell to the husband and that the husband promise to pay the plaintiff  if the declaration be secundum rei reality that the wife buy the good for  necessary and so declare against the husband as Chargeable by law it be a ill  declaration that be the express case of e Det cite before to other purpose in  debt the plaintiff count that the defendant wife buy of he quarter of wheat  which come to the defendant profit and upon demurrer the count be adjudge have  for the wife shall not be charge by it nec per logical consequence the husband  these be the word of the book it be true that book go farther that if the  plaintiff have declare that the defendant by Alice his wife have receive so  much to his profit he shall haverecovered and that h be agree accord before  Bridgman oh Fitzherbert Det but that book be not to be understand as if the  delivery of corn to the wife to the husband profit shall bind he without his  consent for that be express contrary both to the law as it appear by the  authority which have be cite and be acknowledge by all person who have argue  this case on the plaintiff side and distinguish between necessary receive by  the wife for her person and thing which come to the use of the family and be  express contrary to that book h Det there cite but upon consider the case it  will appear that the weight of the case lie upon this that the wife take up  the wheat if the husband consent and receive it bind he but you must not  declare in that case upon the contract of the wife but upon the contract of  the husband or if you mention the wife yet still you must declare that the  husband contract and receive it by the band of his wife to his profit by the  husband general command precedent or assent subsequent it come to his profit  make it a good contract and so be that case Det to which it refer and refer  upon that point only but the husband consent or not consent appear not which  be to be mention in the declaration it be part of the matter of evidence after  issue join whether it be his consent or not and also if the servant or wife do  make a contract for that which come to the profit of the husband it shall be  presume prima fancy that there be either the command or allowance of the  husband or master for no one be presume to do a unjust thing but still it be  but presumptio while to make good in opposite direction r Statham cite by  kitchen on court leet b now the use I make of the case before cite be this if  the wife may bind the husband by law for necessary for herself without his  command or consent the same law which create that right and interest to the  wife will also have enable the plaintiff to declare secundum reality fact  accord to the truth that the wife take up the good for necessary for herself  and so have charge the husband but the law not allow any such declaration but  only to declare as in the case of a servant so in the case of a wife there  must be a command precedent or assent subsequent if you will charge the  husband by the wife contract though for necessary fit it be a strange instance  and without a parallel that the wife may charge and fetter her husband by her  contract against his will and slip her own neck out of the collar but Bridgman  oh the law make no difference it appear by these case between the contract of  a servant and of a wife or between a wife where she contract for herself for  necessary and where she contract otherwise for herself the declaration must  still suppose the contract to be make by the husband or master and therefore  as in the other case the ground in law why it be lie to be the husband or  master contract be his command or assent for otherwise it be not his contract  so it must be in this case also to say the truth these case of contract by  servant or femes covert consist more of a matter of evidence than of law if a  servant who be a servant well known and Bridgman oh er p use to take up ware  on trust take up ware and they come to the use of the family in a action  against the master the judge will give direction to find for the plaintiff for  his be a know servant and use to take up ware upon trust and the good come to  the use of the family it shall be presume that he have authority from his  master or that his master consent to it and that it be buy to his master use  and in his master name but if upon plead a verdict or direct evidence it shall  appear that the servant have no such power to take up on trust nor that the  master assent there the law will lie against the plaintiff for the servant  power be not further than the authority give he if it be only to buy with  ready money he can go on trust this imperfect argument conclude in the follow  word it be safe to follow the step of our ancestor and though our law do not  allow so extravagant a power as this to the wife yet there be so much  provision care and indulgence for they by the law and the genius custom and  constitution of the people which give they more freedom of converse than in  other nation where the wife have a peculiar estate that it have be call the  woman island that it be no less than a proverb that if a bridge be make over  the sea all the wife in Europe will come hither and I trust that fair  character will still be give of this nation so that I have do with the case  the ecclesiastical law provide a remedy for the wife where the husband deny  her necessary maintenance the commonlaw allow not the wife to do any thing by  way of contract which may charge her husband without his consent no authentic  report or record in any age or succession of time have or can be produce of  such a action bring and maintain till those trouble and after the coercive  power of the ecclesiastical court take away and the inconvenience will be  exceed great if such a law shall be now introduce and therefore I con Bridgman  oh cieve it best stare super way antiquity and as well on behalf of my brother  of the common bench and exchequer as of myself do advice my lord the justice  of the king bench to give judgement for the defendant