Reloomel v Ramsay 1920 TPD 371

Transvaal Provincial Division

1920. August 4, 31.

WESSELS, J.P., BRISTOWE and GREGOROWSKI, J.J.

Flynote

Husband and wife --- Purchase of necessaries by wife --- Liability of husband --- Agency --- Surrounding circumstances --- Absence of husband --- Wife supplied with clothing and money --- Wife forbidden to buy on credit --- Purchase of clothing.

Headnote

A husband intending to be absent for about 18 months from his wife to whom he was married by antenuptial contract had with his wife's consent broken up his home but he supplied her with sufficient clothing and a monthly allowance and forbad her to pledge his credit. During his absence the wife

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bought on credit articles of dress not incompatible with her previous mode of life. Held (GREGOROWSKI, J., diss.), that the right of the wife to pledge her husband's credit for necessaries was not based on agency, but, was an incident which flowed from the marriage. Held, further, that in deciding whether under the circumstances the purchases were reasonable the Court should not take into consideration the husband's temporary absence and the fact that the husband had supplied her with clothing and funds and had forbidden her to bind his credit. Held, also, that the husband was liable to pay for the articles of dress as being necessaries.

Case Information

Appeal from a decision by the resident magistrate of Potchefstroom.

The respondent, who was married out of community of property to his wife, was sued by the appellant for the price of certain goods sold and delivered to her, the plaintiff alleging that such goods were necessaries. The defendant pleaded that the goods were not necessaries, that the wife was not entitled to pledge her husband's credit, and that he was consequently not liable.

The magistrate came to the conclusion that from the facts disclosed by the evidence the goods were not necessaries, and he accordingly gave judgment for the defendant with costs. The facts appear from the judgment.

B.A. Tindall, K.C., for the appellant: The goods bought were necessaries under all the circumstances of the case. The wife had previously bought silks and the husband had paid for them. The silk dresses can not be said to be unreasonable for a woman in the position of the respondent's wife. The fact that the husband was temporarily absent and that he had supplied his wife with funds can make no difference. See Hern & Co. v de Beer 1913 TPD 721, and Voet 23, 2, 46.

O. Pirow, for the respondent: Taking all the circumstances into consideration the Court is not in a position to say that the goods were necessaries. The wife had ample means and was supplied with sufficient clothing before her husband left. The appellant gave exclusive credit to the wife. The Court has a discretion in deciding whether goods are necessaries or not. See Brudo v Chamberlain 1912 TPD 131. The wife had never purchased goods from the appellant before. He gave exclusive credit to the wife and cannot under the circumstances seek to recover from the respondent.

Tindall, in reply, referred to Jewsbury v Newbold (26 L.J. Ex. 247), Clifford v Laton (3 C. and P. 15) and Grotius, 1. 5. 23.

Cur. adv. vult.

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Postea (August 31).

Judgment

WESSELS, J.P.: The plaintiff in the court below sued the defendant for the sum of £13 8s., as a balance due on an account for goods supplied to the wife of the defendant during the year 1917 and a part of 1918. The defendant pleaded that the goods were not necessaries of life and that his wife had no right to pledge his credit.

It appears that Dr. Ramsay and his wife were married under antenuptial contract in 1912. In May, 1917, Dr. Ramsay went to England and left his wife in Potchefstroom. There was no disagreement between husband and wife at that time and they were therefore not living apart in the legal sense of the term. The husband was merely temporarily absent, his wife and children remaining at Potchefstroom. There is some dispute between Dr and Mrs. Ramsay as to what amount he had promised to allow her during his absence. She puts the amount at £30 per month, whilst he states that it was £15. The magistrate has accepted his testimony on this point, though it does appear to have been a very small amount for his wife and two children to live upon. As, however, the arrangement was that Mrs. Ramsay was to stay with her mother it is possible that this finding is correct. There is no doubt that during Dr. Ramsay's absence his wife lived beyond her allowance. She and her mother apparently had some differences and, in consequences she left her mother's house. There was, however, no obligation on her part to remain at her mother's house if she found it intolerable.

Now, Dr. Ramsay, before he left, had a very fair practice in Potchefstroom --- his income was probably over £1,200 --- and he seemingly occupied a large house. Several of the items of the account were allowed, but others --- purchases of silk dress materials --- were disallowed, because they were held by the magistrate not to be necessaries of life. We need not consider the items allowed by the magistrate and need only consider whether the items rejected were or were not necessaries in the legal sense.

The whole question in this appeal therefore turns on whether the magistrate was right in considering that the crêpe-de-chine and silk bought by Mrs. Ramsay from the appellant was not a necessary, as understood by courts of law.

Mrs. Ramsay bought from the appellant during the year 1917-1918 some 20 yards of crêpe-de-chine, at 12s. 6d. per yard, and

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about 10 yards of silk, at about 5s. per yard. Tussore and Assam silk were also bought, but this is a washing material and falls under a different category. The question for us to decide is whether this purchase of silk on her part for dresses and blouses was so unreasonable and out of the common that the magistrate was justified in refusing to allow the plaintiff to claim the value of these articles from the defendant.

As there is some difference of opinion as regards the legal principles upon which our decision should be based, it will be advisable to review our law with regard to the binding effect of a wife's purchase of necessaries. The first question to decide is: What are necessaries? Now the magistrate is clearly wrong when he speaks of necessaries of life, as if a wife is only entitled to purchase necessaries of life without her husband's consent. By our law necessaries are considered to be such things as are required for the household of the spouses in accordance with their status, their mode of living in the past, the usual customs of the place where they live, and the means of the husband. What will be regarded by the Court as a necessary in the case of spouses who move in the best society of the place in which they live will not be regarded as a necessary in the case of a couple of humble origin and of narrow means. Rodenburg mentions a case where gems and costly linens were considered necessaries: De Jur. Cong. 2. 1. 20.

Now Mrs. Ramsay tells us that the silk she bought from the plaintiff she used in order to make dresses and blouses for herself and dresses for the children. As the total cost of the crêpe-de-chine was £12 11s. 3d., there could not have been many dresses. Silk dresses are not necessaries of life, but they may have been necessaries in the legal sense for the wife of a doctor in Potchefstroom, with a fair practice, living in a large house, and whose wife had been allowed to wear such dresses during the time that her husband was actually in the town. It was suggested in the cross-examination of Mrs. Ramsay that she dressed very extravagantly and that Dr. Ramsay protested against this extravagance. This would go to show that Mrs. Ramsay was allowed to appear to the public of Potchefstroom as a well-dressed woman. It is true that a husband can determine how he and his wife ought to live, but then he must take steps to see that in outward appearances she conforms to the standard of living he wishes to set for the household. His

protestations are not enough; he must see that his wishes are carried out. Mrs. Ramsay tells us that she

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was in the habit of wearing silk dresses, and that before her husband left Potchefstroom she had dealt with the plaintiff and her husband had paid the accounts. She had bought silk material for dresses from this very plaintiff before her husband's departure and he had paid the account. This is not denied, and the magistrate seems to have accepted Mrs. Ramsay's testimony upon this point. The magistrate does not find that it was unwarranted for Mrs. Ramsay, the wife of a successful professional man, to have a couple of silk dresses during the year. He says: "While the establishment was normal, that is, Dr and Mrs. Ramsay were living together, their position might warrant the purchase of such goods." I take it therefore that whilst Dr. Ramsay was actually at Potchefstroom there was nothing out of the way in Mrs. Ramsay having a couple of silk dresses. In other words, considering her husband's station in life, his allowing her to buy silk material for dresses, his means and his outward mode of life, silk dresses maybe regarded as a necessary for Mrs. Ramsay. The magistrate, however, seems to think that after Dr. Ramsay left Potchefstroom Mrs. Ramsay was not entitled to bind her husband by buying silk dresses, both because (1) "it was possible to obtain dress materials which will wear better at far less cost," and (2) "because her husband was living apart from his wife and had provided her with money." I shall take the last reason first.

A wife is not living apart from her husband, in a legal sense merely, because the husband is temporarily absent. The temporary absence of a husband on a journey makes no difference to the status of the wife or to her rights to buy necessaries. It may be that when her husband is absent, and the means of the couple contracted, a wife who buys very expensive articles is acting unreasonably, but it does not follow that a tradesman who is accustomed to see her wear silk dresses and from whom she has bought such articles, is not entitled to supply her with these during her husband's temporary absence. It might make a difference if the tradesman is fully conversant with the facts, or even perhaps if he is put upon his enquiry, but in this case there is no evidence that the plaintiff was even aware of Dr. Ramsay's absence.

The fact that a wife may buy less costly things is irrelevant to our enquiry, because if her station in life and her past method of living would justify her in buying silk dresses, and if her

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husband allowed her to wear such clothing, then she can bind her husband. Voet, 23.2.46; Rodenburg, De Jure Conj, 2.1.20.

This brings us to an important question in our enquiry. Is, in our law, the right of the wife to bind her husband's credit based on agency or not? In Du Preez v Cohen Bros. 1904 TS 157 I expressed the view that the capacity of a wife to bind her husband's credit for necessaries was not based on agency but was an incident that flowed from marriage. As the correctness of this view has been questioned, I have thought it advisable once more to consult the authorities upon that point. Now Grotius says (Introd. R.D. Law, 1.5.23): "Other women (i.e., women not traders) may

only transact business connected with the household, and may to that extent bind themselves and their husbands; nor can the husband prevent this unless he interdict the wife judicially from the management and give public notice of the same." The fact that the husband cannot prevent his wife from binding him in her purchases for the household excludes all idea of agency, for if the relationship of principal and agent exists the former can always determine what the authority of the latter shall be. According to Grotius, the husband can only prevent his wife from pledging his credit by a judicial act. If modern circumstances exact a modification of this rule we should at least require a public notice on the part of the husband or, at any rate, a notice to the individual trader, and until the husband takes that step the law allows his wife to bind him so long as she purchases goods of the nature of food and clothing of such a kind as are usually bought by the wife who manages the particular household. This is what the old authorities say, though no doubt we have given to this an extended meaning in accordance with modern requirements. Thus false teeth have been held to be a necessary and a wife was held entitled to bind her husband's credit in such a case. Brudo v Chamberlain 1912 TPD 131.

Grotius is not the only authority who states that the husband cannot prevent the wife from binding his credit for household necessaries. Voet (23.2.46), Rodenburg, De Jure Conj. (2.1.20), Wesel, De Con. Bon. Soc. (2.3.37), Groenewegen, De leg. abr. (4.12 n.6), are all of the same opinion. Arntzenius, Instit. Juris Belg. (vol. 2, p. 263), one of our latest and best authorities on the relationship of husband and wife, in dealing with this question, states the general proposition that a wife cannot, as a rule, bind her husband by contract. He points out, however, that

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this rule only applies to debts of considerable amount (notabele en merckelijke schulden), and that it does not apply to a wife who is a public trader and to one who buys food, drink, household furniture and clothes ad rem domesticam necessariae. His very words are worth quoting: "Differt autem haec species (i.e., wives who buys things necessariae ad rem domesticam) a priori No. 1(i.e. public traders) quod in illa consensu, in hac nullo opus est, ita ut, sine justa causa, neque etiam maritus sua dissentione uxorem impedire queat." Our law assumes that a husband does not intend to worry himself about household matters such as the purchase of foodstuffs and clothing, and therefore quoad these the wife has the capacity --- not the authority --- to bind her husband.

The wife therefore, according to our law, has a greater capacity for binding her husband's credit than she has in English law, where her right is based solely on agency. Her right is of course not unlimited. She can only bind her husband's credit if her purchases are reasonable (justus modus), and whether they are reasonable or not depends, according to our law, on certain outward manifestations, of which, in a rough and ready way, the person who supplies her can judge, namely, regionis mores, mariti conditionem, opes, consuetudo praeteriti temporis, debiti similis frequens in praeteritum agnitio. Voet, 23.2.46; Arntzenius, p. 264.

It is, according to all our authorities, the Court which has to judo whether the wife's purchases are or are not reasonable, taking all the circumstances into consideration. It is nowhere said, in any of the authorities I have consulted, that the Court must take into consideration the fact that the husband has given his wife money to buy food and clothing. Our law looks at the subject not only from the point of view of the husband but also from that of the shopkeeper. Arntzenius (p.

264) makes this quite clear: "uxorem vero, in his nimis prodigam, administratione prohibere potest maritus, modo illud promulgetur, ne ceteroquin damnum sentiant qui cum ea contrahant." (Quoting Grotius, 1.5.23.) How can the shopkeeper tell that a wife was given money to buy a dress but that she spent it on a race course? The trader looks to the usual mode of life, he considers how she is s dressed, what she has bought, and what her husband has allowed her to buy. He takes into consideration her husband's social standing and the customs of the place where the couple live, and from these he judges whether the purchase is or is not

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reasonable. The shopkeeper's knowledge of any particular circumstances connected with the spouses can, no doubt, be taken into consideration by the Judge in order to decide whether the purchase was or was not reasonable and whether the shopkeeper ought or ought not to have given credit to the wife. Further, however, I do not think the law allows the Court to go. I do not think therefore that the claim of the plaintiff can be repelled, even though it be shown that Dr. Ramsay had given her money or the means of obtaining money wherewith to buy clothing. No doubt if it can be shown that Mrs. Ramsay had ample store of silk and other dresses, and that she had no need to purchase more, that would be an element in determining whether the purchase was or was not reasonable. (an non modum justum in contrahendo videatur excessisse; Voet, 23.2.46).

Now in this case it appears to me that prima facie there is nothing unreasonable in the wife of a well-to-do doctor purchasing silk material costing from 4s. to 12s. 6d. a yard for dress material, especially if we consider the fact that Mrs. Ramsay had bought such material before at the same shop and that it was paid for by her husband. The cost of the materials bought was, after all, not very large, only some £12 odd, and probably much less than a single silk dress from a dressmaker would have cost. If this was so, the plaintiff was prima facie entitled to succeed in his claim, and it became the duty of the defendant to show that neither his past mode of living, his social status, the customs of Potchefstroom, nor his means, justified his wife in buying silk dresses. This he did not attempt to prove. It is true he attempted to show that his wife had ample dresses before he left Potchefstroom and that therefore it was unreasonable for her to buy more. But of this there is no proof. There is an assertion on his part that this was so but, when challenged, he could not make it good. He says he told her to provide herself with dresses for 18 months, but he does not say that she carried out his instructions. She denies, the whole story, and none of the shopkeepers he refers to bears him out. Nor did the magistrate accept this as a proven fact, for he says: "The defendant alleges that in addition to the allowance mentioned he provided his wife with sufficient clothing for a period of 18 months. This fact was not, however, conclusively proved." What was proved was that she and two children, for whom a nurse had to be engaged, had to live on an allowance of £15 per month. It is true she obtained some other funds by

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selling some furniture, etc., but is that to be wondered at? Dr. Ramsay took a good deal of money with him to England but left his wife and children very badly provided for. The magistrate says: "While it might be justly claimed that a sum of £15 per month is insufficient to maintain

defendant's wife and two children in their customary position, it must not be overlooked that Mrs. Ramsay was able to supplement her income by the sale of furniture, which she is legally entitled to do."

It makes no difference in a claim for necessaries whether the husband and wife are married in community of property or not. In either case it is the duty of the husband to pay for the upkeep of the household, including his wife's clothes. In both cases the wife acts as the manageress of the household and in both cases as such she can bind her husband. If she is married by antenuptial contract she may also be held liable in certain cases, but the mere fact of her being married by antenuptial contract does not free the husband of his obligation to pay. I have already pointed out that the magistrate errs when he thinks that the parties were living apart; they were not. If they had been seperated, either voluntarily or otherwise they might he regarded a living apart, and then no doubt the husband might escape payments but this does not apply when there is a mere temporary absence on the part of the husband.

It has also been argued that personal credit was given to the wife and therefore the husband is not liable. There is no proof of this assertion --- on the contrary, the proof is all the other way. The mere fact that Mrs. Ramsay's name appears in the books is no proof, for she was the person with whom the plaintiff came in contact, and it is therefore quite reasonable that he should put her name in his books without any intention thereby to look to her and to her alone.

In all the circumstances of the case I think the magistrate was wrong in thinking that the silk bought for dresses and blouses and children's clothing was not prima facie a necessary within the meaning of the law, and he was wrong in thinking that the fact that the husband was temporarily absent changed the character of what might have been a necessary had the husband not gone abroad temporarily.

I am of opinion that the appeal must be upheld and that there should be judgment for the plaintiff for the amount claimed with costs in both Courts.

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BRISTOWE, J.: In England the right of a wife to bind her husband by a contract for necessaries depends solely on the principles of agency and the later decisions make it clear that the presumption of agency may be rebutted by evidence of a contrary arrangement between husband and wife unknown to the creditor (Debenham v Mellon, 6 AC 24; Morel Brothers v The Earl of Westmoreland 1904 AC 11). In my Judgment these cases have no application in South Africa. Whether the corresponding right of a wife under the Roman-Dutch Law has its origin in the notion of agency it is difficult to say; but if it has the agency is an implied one arising as a matter of course from the fact of marriage. The books seem to say that the mere entry into the marriage relationship amounts to an implied consent on the part of the husband to contracts for necessaries entered into by the wife (Voet 23.2.46; Grassman v Hofman (3 SC 282)). Marriage in fact is a joint concern of which the part relating to the provision of the family necessities falls prima facie on the wife, without any express permission from her husband. The husband is entitled to fix the general scale of expenditure, but within these limits the power and duty of providing the family necessaries falls to the wife. Whether in and particular case goods purchased by the wife are

necessaries or not is for the Court to Judge and in deciding that question it must have regard to the social standing and means of the parties and their habits of life in the past. (Voet sup.)

As to how the husband can put an end to his wife's implied power there is not much authority; but Grotius says that it can only be done by interdicting the wife judicially and giving public notice of the same --- (Grotius 1.5.23; Maasdorp, Institutes of Cape Law, vol. 1, p. 44). And there is no authority that I have been able to find that the wife's right in this respect can be terminated by any secret act of her husband. Although it may not be necessary now to obtain an interdict, still, unless the passage I have cited from Grotius is to be overruled, there must be at least some public act of which actually or notionally the creditor has notice.

In the present case nothing of this kind has occurred. According to the law of England evidence of Dr. Ramsay's instructions to his wife and of the allowance which he made to her and the money which by one means or another became available to her during his absence would probably be admissible. Here I do not

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think it is, and we must therefore disregard it in determining this case.

In considering the means of Dr. Ramsay and his wife I think we ought to take into account not only the way in which they were living before Dr. Ramsay went to Europe, but also the probabilities of his means being diminished during his absence; for although he was not on active service he was engaged in war-work. But even so I cannot satisfy myself that the articles purchased from the plaintiff are prima facie beyond the reasonable requirements of a woman in Mrs. Ramsay's station in life. I think therefore that the plaintiff has satisfied the burden which primarily rested upon him to establish that the goods on the face of them came within the category of necessaries.

It may be that they are not necessaries having regard to the amount of clothing which Mrs. Ramsay already possessed and which she purchased from other tradesmen. The plaintiff knows nothing about this and obviously the burden of proving it must be upon the defendant. He certainly says that she had enough clothing for herself and her children for 18 months and that the silks bought from the plaintiff were not necessary. But general statements are not sufficient. The Court must judge whether she has sufficient clothing or not and to enable it to do so details must be supplied. I do not say they must be complete, but they should be sufficient to give the Court some idea of what she had and what she required and what she bought. But these details are wholly wanting. Even the tradesmen who give evidence do not say what was spent on clothing or on different kinds of clothing or what Mrs. Ramsay spent on herself or what on her children. That the silk dresses supplied by the plaintiff were not necessary in the sense that life could go on without them, may be admitted. But that is not the point. The point is whether they were reasonable under the circumstances and it is just that reasonableness disputed by the defendant which the Court has not sufficient information to enable it to decide. The defendant has therefore failed to discharge the onus that is upon him.

In arriving at this conclusion we are differing from the magistrate, but the magistrate has taken into account a quantity of evidence which I think was not admissible and that renders his judgment almost useless as a guide.

In my opinion the appeal succeeds and the plaintiff is entitled to judgment.

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GREGOROWSKI, J.: The plaintiff (now appellant) is an Indian storekeeper at Potchefstroom and sued the defendant, a local doctor, for £13 8s., the balance of a debt incurred by the wife while her husband was absent in Europe. The total debt was £19 18s, but the wife had paid £6 10s. on account, leaving this balance of £13 8s. The defendant left in May, 1917, and returned a year later, and the account runs from June, 1917, to February, 1918. The plea is that the wife was not entitled to pledge the defendant's credit for the articles purchased by her, which were not necessaries of life, and further, that the marriage was out of community, and that the goods were sold to the wife and that the defendant was not liable.

The magistrate disallowed three items on the account amounting to £13 13s. 9d. as not being necessaries and gave judgment for defendant. The items disallowed were for silks, £2 8s. 9d., £3 15s. and £7 10s.

Mrs. Ramsay, the defendant's wife, was called by the plaintiff. She was married to the defendant in 1912, and divorced from him in April 1919. At the time the defendant went to Europe in May, 1917, Mrs. Ramsay had two children, one aged 2½ years, and the other one year old. She said the account was correct. As to the item £2 8s. 9d. it was for 5 yards of silk for herself at 4s. 6d. per yard (£1 2s. 6d.) and 2½ yards crepe-de-chine at l0s. 6d. per yard (£1 6s. 3d.) for her daughter. The item £3 15s. was for six yards crepe-de-chine for herself, and the item £7 10s. was also for herself being material for two silk dresses.

Mrs. Ramsay stated that when her husband left for Europe he agreed to allow her £30 per month, and as a fact she only got £15 per month and she could not come out on £15 a month. After the doctor's return he allowed her £20 a month, and the allowance for maintenance for the two children at the time of the divorce is £20 a month. She denies that her husband arranged for her to stay with her mother during his absence at £10 a month, and that she was to get £5 a month for other expenses. But it is clear that she is not speaking the truth on this point. She knew perfectly well that the arrangement was that she was to get £15 a month during her husband's absence, of which £10 was to go to her mother for board and lodging.

During Dr. Ramsay's absence she drew £15 a month from the bank as arranged by him, she also drew £1 a month rent from an erf and in addition she borrowed money, she sold furniture and

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got the proceeds, she bought goods on credit. Dr. Ramsay had left £20 for her to draw in case of emergency and of this she drew £10. Altogether she drew £303 4s. 6d. in cash during the year of her husband's absence and in addition she incurred liabilities amounting to £144 16s. 9d.

From Mrs. Ramsay's evidence it would appear that her husband's practice varied a good deal. She says that when she was divorced in April, 1919, his practice had gone down. She was not satisfied with the £20 a month given her under the order of Court for the maintenance of the children but she did not think he could pay more. Since then his practice had improved and she was sorry that she had not insisted on a larger amount at the time of the divorce.

Dr. Ramsay said he went to Europe to do war work. He arranged for his wife and children to stay with his wife's mother, Mrs. Westerdijk, for which he had to pay £10 per month. In addition he was to allow his wife £5 a month. She was quite satisfied with this arrangement. When he left, his wife was well provided with clothing. "I told her a month before I left, to get in enough for 18 months, which she did. My wife had no authority at any time to contract debts on my account." He says he discharged all debts before he left and told his wife not to contract any debts during his absence, and she said it would not be necessary as she was well provided for.

During his absence he earned £36 and he worked his passage going and coming back. He had to pay £7 10s. per month for the support of the child by his first marriage. During his absence his wife had borrowed £38 from Mr. Nel, which he had to pay back on his return. The silks were not necessaries. His wife bought dresses at other shops besides the silk she purchased from the plaintiff. When he returned from Europe he had to put himself into debt in order to restart his practice. He elected to pay many of the accounts which his wife had incurred, as the creditors were his patients and he could not quarrel with them.

Mrs. Westerdijk confirms Dr. Ramsay as to the arrangements made with her, and says Mrs. Ramsay was satisfied with £5 a month. Mrs. Ramsay left her without any reason. Mrs. Ramsay at her house got everything and more than she required.

Mr. W. Fleischack stated that Mrs. Ramsay told him that her allowance was £5 a month and she was satisfied. If she had asked him he would have written to Dr. Ramsay to get him to allow

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£30 a month. He also, as bookkeeper to Dr. Ramsay, gave evidence as to the doctor's earnings. Dr. Ramsay, when re-called, said his gross income was about £1,000 to £1,100 per annum, 50 per cent. of which went in working expenses.

Evidence was called to rebut Dr. Ramsay's statement that he had, before he left, supplied his wife with clothes, etc., sufficient for 18 months. These witnesses speak as to goods bought on credit just before Dr. Ramsay left for Europe. They cannot speak as to cash purchases. Dr. Ramsay said he could not give details as to the money spent on these purchases as his books and the counterfoils of the cheques at this period were lost. His bank account was put in from which it appears that on the 2nd May, 1917, he had £720 to his credit, and that on the 31st May, 1918, he had a credit balance of £9 4s. 2d. At the end of December. 1918, he owed the bank £89 8s. 11d.

There is nothing to contradict the defendant's evidence that when he left for Europe his wife and children were well provided with clothing and other requirements. His version seems probable. Before he left he wound up his business, he collected his outstandings, he paid his debts. He sold

most of his assets, and had this sum of £720 to the good. He seems to have acted prudently and looked to make provision for the time he was absent. He made provision for his wife and children, for the child by his first marriage and of his own requirements while away, and he also acted with a view to replace things necessary for his practice when he came back. There is no reason to doubt that he strictly enjoined his wife not to incur debt while he was away, and she promised to act according to his wishes. He left £20 for his wife to draw in case of emergency and till he could be communicated with. He made a very suitable arrangement for his wife with her infant children with his mother-in-law. His wife was agreeable to this arrangement, but he had no sooner left than she upset this arrangement, and left her mother, and started a mode of life which necessarily involved greater expenditure, and did not scruple to do what she had undertaken not to do, and bought on credit for considerable amounts.

The magistrate weighed all the facts and came to the conclusion that the silk dresses which Mrs. Ramsay purchased from the plaintiff on credit were not necessaries, and that the defendant was not liable. I find difficulty in rejecting the magistrate's views.

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The defendant was not a man of large means. He had some money when he left for Europe, but this was due to the liquidation of his business and the sale of his assets. The marriage was out of community. The wife had her requirements provided for and had an allowance made her. The husband was away. There was no household being run. The home had, to save expense, been broken up when the husband left for Europe. As the magistrate put it the establishment was not normal. It is true husband and wife were not separated in the legal sense, but the defendant and his wife were not living in their home. He had given up his practice and sold off, and the plaintiff must have known these circumstances, and he should have been on his guard giving credit for articles such as silks.

The general rule is that a wife has no persona standi in judicio. She could not contract. Grotius (I.v.23) points out that she could not bind her husband or herself, with this exception, however, that formerly if a man's wife carried on the trade of baking or brewing he might lose by her an oven full of bread or one brew of beer without being able to avoid it. Even if a man's wife did not carry on business publicly he might lose four pennings by her. He goes on to say that as the trade and wealth of the country increased, this liability of the husband was extended so that if a married woman carried on trade with her husband's consent she could bind her husband in matters relating to the business. Other women may only transact business connected with the household and may to that extent bind themselves and their husbands. "Nor can the husband prevent this unless he interdict his wife judicially from the management and give public notice of the same." Van Leeuwen, R.H. Recht, I.vi.8, says: a woman buying on credit anything which serves for the benefit of the common household is considered thereby to bind both herself and her husband." This power of the wife to bind her husband in matters relating to the household was an exception to the general rule that she could not contract without the assistance of her husband, and that her contracts were void.

Van der Linden does not mention this capacity of the wife to bind her husband in matters relating to the common household, but there is no doubt that the wife has this authority. (Mason v Bernstein, 14 SC 504.)

Fockema Andreae, in his "Bijdragen tot de Nederlandsche Geschiedenis," 2de Bundel, discusses the question of the wife's

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power to contract in the different provinces of the Netherlands. Speaking of Friesland, he says that the general rule was that the wife without the assistance of her husband could not enter into a legal obligation except according to the statute of 1723 in respect of the "huis houding," or if with the consent of the husband she carried on a public trade or business. The wife could set up the invalidity of contract but not the other contracting party.

In Groningen, Overijssel and Gelderland, the wife could bind herself but not her husband nor the community.

Speaking of Holland and Zealand, he says, quoting Grotius, " zij (de getrouwde vrouw) vermag ook niet schulden to maken zichzelven noch haren man to verbinden . . . slechts de handelsschulden der openbare koopsvrouw en de huishoudelijke schulden plegen uitsonderingen te werden toegelaten." (Van Leeuwen, R.H. Recht, I.vi. par. 8.) He then quotes a passage from Mathijssen, and continues: "met andere woorden slechts in drie gevallen is de verbintenis der getrouwde vrouw geldig, als de man haar uitdrukkelijk heeft gemachtigd, als hij stilzwijgend in haar handeling heeft toegestemd, en als zij openbare koopsvrouw is." So that he seems to put this right of contracting for the household on the basis of agency. He goes on to point out that according to the older authorities the wife could bind herself but not her husband nor the community.

It would thus appear that in course of time this capacity was given to the wife as arising out of the circumstances conveying the tacit consent of the husband.

It is obvious from Voet, XXIII. ii.44 & 45, that the wife as a public trader binds her husband as his agent. She can only bind in matters relating to the business which he has authorised, and not beyond, "for she is considered to have contracted not in her own name but rather as the agent appointed by the husband for managing her own affairs, and thus in his name and on his mandate."

Similarly, in Voet, XXIII. ii.46, the contract of the wife in the household management binds herself and her husband "as though established by the consent of the husband who tacitly relinquishes the household affairs and entrusts them to his wife." Then he goes on to say: "Much must be left to the discretion of the Judge in deciding whether and in how far the contract of the wife for household stuff such as food and clothing ought to be upheld and whether she has exceeded the just limit. He must

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take into consideration not only the usage of the locality but also the position of the husband, his wealth, his habits and the frequent acknowledgement in the past of similar liability." (Sande, Dec. Fr. II.v.4.) All this would go to show that the wife acts as the agent of the husband under his implied authority.

In the present case there is nothing to show that the husband had ever paid plaintiff's accounts for silk supplied on credit to the wife. The plaintiff says that he never had had transactions with the defendant. The defendant corroborates this. The wife contradicts this, but I do not think her testimony can be accepted in the face of the plaintiff's and the defendant's evidence, and the general unreliability of the evidence she gave.

Then as regards the position of the husband, his wealth and habits, the defendant was not a rich man. At the time the debt was incurred he was not earning money. Voet does not expressly mention that consideration must be taken of the needs of the family, whether the family is well provided or not, whether the husband supplies sufficient money for cash purchases and prohibits credit, but it seems to me these considerations must be understood. If the wife is supplied with all she can reasonably need, then I take it, there is no necessity for her pledging her husband's credit for things which she already has.

Under circumstances such as existed in the present case, it was quite reasonable and proper for the husband to give his wife a suitable allowance, and to prohibit her from contracting debts so, as to bind him. But it is said that he ought to have given public notice to the world at large, and to the plaintiff in particular, that his wife was prohibited from buying on credit. If there had been proof that the wife had previously bought on credit from the plaintiff, and the husband had paid the debts, there would be force in this contention, but there is no such proof. The plaintiff states in his evidence: "I know Dr. Ramsay. He never did business with me. He never authorised me to supply Mrs. Ramsay." It does not appear from what he says that he had ever previously supplied Mrs. Ramsay with goods on credit.

I do not think that our law gives the wife a wider authority than a wife has in English law. I am not prepared to add another terror to matrimony. I am not prepared on the authorities to lay down that a wife can purchase on credit goods, and that the husband must pay, even where he has supplied her with

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money and is prepared if necessary to give her more money for her needs, but objects to her buying on credit.

The English law is that where husband and wife are living together, the wife has the husband's authority to enter into a contract in all domestic matters ordinarily entrusted to a wife to bind him for necessaries, but the husband can rebut this presumption by proving that he expressly forbade her to pledge his credit (In re Cook ex parte Holmes (1893) 10 Morrell 12. Halsbury, Laws of England, vol. 16, p. 422).

It is also a circumstance in this case that the husband was away when the goods were supplied. If dresses are delivered at the joint residence of the husband and wife, it may fairly be presumed that the husband has approved of the purchase, especially if it be further shown that the wife has worn the dresses, so that he must know of their purchase. (Jewsbury v Newbolt, 26 L.J., Ex. 247.)

The law as laid down by the HOUSE OF LORDS in Debenham v Mellon (6 AC 24) seems also to be the Roman-Dutch law. When a wife is left destitute, or where there is evidence that the wife has not been allowed what is proper for her estate and condition, a court can readily come to the conclusion that the husband is legally bound to pay, but it does seem extraordinary that if a husband decides that his wife shall not wear expensive dresses and shall not buy them on credit that a court can interpose and say that the husband has no say in the matter, and that the wife can buy these dresses on credit and that the husband must pay for them. This is really the result to which the appellant asks the court to come, to hold that there is a presumptio juris et de jure in favour of the wife's capacity to pledge the husband's credit unless an order of court be obtained interdicting the wife.

As the husband has to pay the piper, he ought to be able to call the tune. The law gives him the administration of the common estates and makes him responsible for the support of his wife and children, but it is not possible for him efficiently to manage his estate and to carry out his financial duties if his wife is at liberty to incur debts at her sweet will in what is the main spending department of the husband. It seems to me that the wife against the will of her husband can only pledge his credit where he leaves her destitute, or manifestly inadequately supplied with things which are necessary and which she ought reasonably to have.

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For these reasons on the facts proved, I do not think there is any good reason for interfering with the magistrate's judgment, and I am of opinion that the appeal should, be dismissed with costs.

Appellant's Attorneys: Stegman, Oosthuizen & Jackson; Respondent's Attorney: F. Kleyn.

[I.G.-F.]