This was an action under Sec. 15, Ch. 68, R. S. 1874, by appellants against appellees as husband and wife, charging them with ladies’ and children’s apparel, sold by appellants to her, as family expenses.
In this action against them jointly, no other ground of recovery can be x-elied upon. It would see in to be a condition precedent to any family expenses that there should be a family; a family in fact, without regard to what knowledge the persons selling the goods had of the fact. If they sold, as they supposed, to a bachelor or a spinster, and it turned oxxt that there was a wife or a husband, who with the purchaser constituted a family, probably both could be held, and vice versa. In this case it appeared that the appellees had ceased to live together for some months before the purchase, though the appellants had no notice of such separation. either had the husband any notice that the wife was buying goods.
In Hudson v. King, 23 Ill. App. 118, the Appellate Court of the Second District regarded it as essential to the liability of the wife that she and her husband constituted a family in fact. See also Compton v. Bates, 10 Ill. App. 78, 85.
The Superior Court rightly decided that the appellees were not liable under the statute for family expenses whei'e there was no family. She was not served with process, and did not appear in the action, yet judgment against the appellants fox-costs was entered in favor of both appellees. This is an immaterial error. The costs are not increased, and it makes no difference to appellants whether they are adjudged to one or both the appellees. O’Brien v. People, 41 Ill. 456; Wright v. Bishop, 88 Ill. 302; Worden v. Crist, 106 Ill. 326.
The principle is, that a party can not assign for error what does him no harm, and that applies in this case also to the questions raised upon other issues than the existence, of a family.
Judgment affirmed.