Opinion,
Section 8 of the Act of 1848 provides that “ In all cases where debts may be contracted for necessaries, for the support of the family of any-married woman, it shall be lawful for the creditor in such case to institute suit against the husband and wife,” and if it be proved “ that the debt sued for in such action was contracted by the wife, and incurred for articles necessary for the support of the family of the said husband and wife,” the plaintiff may be entitled to recover.
It has been repeatedly decided that both the pleadings and the evidence must show a case of the wife’s liability under the statute. The record must set out a debt contracted by the wife and that it was incurred for articles necessary for the support of her family. But it is not requisite that the evidence adduced to establish the claim shall be entered on the record.
The transcript of the justice sets forth that the plaintiff claimed “ $226.99 book account for necessaries furnished to the wife and at her request and direction, for the use of herself and family, and for the improvement of her separate estate.” This claim was admitted by the husband; and the wife admitted it, except that she denied having bought the necessaries herself. Upon the evidence judgment was rendered against
When the cause of action is stated according to the requisites of the statute v which define the case where the wife is liable, the record is sufficient. From such statement the reasonable inference is that the goods were sold on the wife’s credit, and it has been often repeated in judicial opinions that the evidence must show that the goods were furnished on the wife’s separate credit. But no case was cited on the part of the defendant where it was ruled that it is necessary to insert the words “ on the wife’s separate credit” in the pleadings, and we are advised of no such decision. The cases relied on to support the injunction are Berger v. Clark, 79 Penn. St. 340; Sawtelle’s Appeal, 84 Idem 306, and Hoff v. Koerper, 103 Idem 396:
In Berger v. Clark, the declaration showed that the action was founded on an alleged joint contract of the husband and wife, and therefore it was held that the wife was not liable. In speaking of what is essential, it was remarked, “ The pleadings must set out a debt contracted by the wife, and that it was incurred for articles necessary for the support of the family of the husband and wife.” Sawtelle’s Appeal was from a decree of the Orphans’ Court, and no question of pleading existed; but it was enunciated that “ The Act enables the wife to bind her separate estate for necessaries obtained for herself and family, but the very essence of the liability is that they are furnished at her request and on her credit.” Nor was there any question whether the claim was properly set out in the pleadings in Hoff v. Koerper, where it was ruled that the testimony “ was clearly insufficient to sustain the essential aver
The authorities seem to sanction the statement of claim as sufficient, when it follows the terms of the statute relative to her liability for debts incurred for necessaries.
The order enjoining the plaintiff from issuing execution process against Mary Ann Xander, is reversed.