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alleged to have been furnished by it to the, quently stated by this court. said Adelaide McFerren.

The theory upon which the plaintiff sought to recover against the appellant was that the articles furnished were necessities suitable to the wife's station in life, which her husband refused to supply and which he furnished her no means to procure, and that therefore she was entitled to purchase them upon his credit and that he thereupon became obliged to pay for them.

The wife's defense to the suit was that she had been compelled to separate from her husband because of his cruelty and abuse, and that after the separation she was in need of wearing apparel, and since her husband did not supply her with the means to procure it she was compelled to buy it on his credit, and that he and not she was responsible for the payment of the debt so incurred.

The husband's defense was that he supplied his wife with such things as were necessary to her comfort and convenience in their station in life, and that when she separated from him she did so voluntarily and without any fault on his part, and that during the separation he paid her a fixed weekly sum for her support and maintenance as alimony in a divorce proceeding which she has instituted; that the sum so aforesaid was fixed by agreement, and that he had notified the plaintiff, before a part of the goods for the price of which the suit was brought had been purchased, that he would not be responsible for any purchases not made by him in person.

Since the legal sufficiency of the evidence is not in issue and we are not called upon to weigh it, it is unnecessary to review it in detail, and it is sufficient to say that there was testimony in the case tending to support each of these conflicting contentions.

The record contains seven exceptions, the first six of which relate to questions of evidence and one to the rulings on the prayers. [1] The six exceptions relating to the admissibility of evidence may be grouped, as they all relate to the action of the lower court in refusing to allow questions asked in the cross-examination of Adelaide McFerren, a witness for the appellee, which were designed to show that at the time she purchased the articles in question she had means of her own, not furnished by her husband for her support, from which she could have paid for them. The proposition upon which the court's rulings in respect to the questions involved in these exceptions rests is that the husband's obligation, arising from the marriage relation, to supply his wife with necessities suitable to her station in life, is not affected by the fact that she may have means of her own from which she could procure them. While this question, in the precise form in which it occurs in this case, does not appear to have arisen in this state, the general principles controlling it have been fre

In Jones v.

Gutman, 88 Md. 364, 41 Atl. 794, the court said:

"The husband is bound to provide his wife with such necessaries as in her situation in life are suitable and proper, and if he fail in the performance of this duty she may contract debts for them, and it will be presumed as a matter of law that she had the power to do so. 1 Black, Com. 443. In all such cases a presumption conclusively arises whether the parties live together or not."

And that this principle is not affected by the fact that she had means of her own is to be inferred from the language used in Stonesifer v. Shriver, 100 Md. 30, 59 Atl. 141, where there was an effort to charge the wife's separate estate with her funeral exIn holding penses and medical attendance. that these expenses could not be charged against the wife's estate it was said:

"The duty of a husband to bury his wife in a suitable manner is involved in the obligation to maintain her while living," etc.

And in Wanamaker v. Weaver, 176 N. Y. 75, 68 N. E. 135, 65 L. R. A. 529, 98 Am. St. Rep. 621, cited in Noel v. O'Neill, 128 Md. 205, 97 Atl. 513, it is said:

"It is a settled principle in the law of husband and wife that by virtue of the marital relation, and in consequence of the obligations assumed by him upon marriage, the husband is legally bound for the supply of necessaries to the wife, so long as she does not violate her duties as wife."

If, then, the husband's duty to supply his wife with necessities depends upon the marital relation and the obligations incident thereto, it cannot be said to depend upon nor be affected by her ability to procure such necessities from her separate estate, and such seems to be the general view. Although there are decisions to the contrary (see Hunt v. Hayes, 64 Vt. 89, 23 Atl. 920, 15 L. R. A. 661, 33 Am. St. Rep. 917), it is "generally held that a husband's duty of support exists though his wife has a statutory or equitable separate estate" (13 R. C. L. p. 1202; Cunningham v. Reardon, 98 Mass. 538, 96 Am. Dec. 670; Moore v. Copley, 165 Pa. 294, 30 Atl. 829, 44 Am. St. Rep. 664; Ott v. Hentall, 70 N. H. 231, 47 Atl. 80, 51 L. R. A. 226). Many of the cases dealing with this question

are collected in a note to the case of Wanamaker v. Weaver, 98 Am. St. Rep. 644, in which, after referring to the cases holding a contrary view, it is said:

"The soundness of these decisions may well The right of a wife to support be doubted. from her husband and his duty to support her do not depend upon the inadequacy of her means, but upon the marriage relation. Her implied authority to pledge his credit springs from his obligation, as husband, to provide for her, and not from the fact that otherwise she will be destitute."

(113 A.)

And in our opinion the principles so stated | merhorn, 39 Mich. 661, 33 Am. Rep. 442, are not only established by our decisions but where it is said: are entirely consonant with reason and the best-considered authority elsewhere.

Applying these principles to the question before us, in our opinion, there was no error in the rulings involved in these six exceptions.

The plaintiff offered five prayers, the defendant Adelaide McFerren two, and the de

fendant Frederick C. McFerren seven. All the prayers of the plaintiff and the defendant Adelaide McFerren were granted, as were the first, third, fourth, and fifth prayers of the appellant, and the others were refused.

"In the absence of any express promise, the power of a wife separated from her husband without her fault rests on an implied authority to bind him for necessaries, where he has made no sufficient provision for her support. If he makes sufficient provision, or if he makes Provision to an amount she assents to receive without coercion, he is not bound to make good her contracts for necessaries. This is not questioned."

Applying these principles to the questions involved here, in our opinion, there was error in the rulings of the lower court on the prayers.

[2] The legal principles controlling the [5, 6] By the appellee's first prayer the jury rights of the several parties to the case in was told that if the garments for the price which this appeal was taken present no diffi- of which the suit was brought were purculty. The husband was obliged to provide chased upon the credit of the appellant by his wife such necessities as were appropriate his wife, and that she had purchased from to her station in life, and when, and only the appellee "similar garments on many ocwhen, he failed to provide them or furnish casions" and her husband had in each case her means to procure them, she became au-paid for them, the plaintiff was entitled to thorized to pledge his credit to obtain them. recover, unless her husband had provided The agency thus presumed is one which arises ex necessitate, and is not the conventional agency created by express language or implied from the conduct and course of dealing of the principal. This is obviously true because, if the existence of the facts from which this agency of necessity is implied are established, the husband will not be allowed either to revoke it or deny its existence, whereas in the case of an actual conventional agency he could terminate the agent's right to act under it at any time. 2 Mechem, Agency, par. 563.

[3, 4] But the rule thus stated rests upon the assumption that the husband has neither furnished the necessities nor the means to procure them, and if it appear that he has supplied either the one or the other, then there is no presumption of an agency of necessity, and whoever seeks to charge the husband for purchases on his credit by the wife must prove agency as in other cases when her right to pledge his credit is questioned. And where the husband and wife are separated, and he provides for her maintenance and support by the payment of money or other valuable commodity at stated intervals, either as alimony under an order of some court of competent jurisdiction, or in accordance with an agreement between the husband and wife fixing such an amount as adequate and satisfactory, then she is not authorized to pledge his credit under the presumed authority of an agency of necessity; and the person seeking to charge the husband under such circumstances assumes the burden of proving an agency in fact. Jones v. Gutman, 88 Md. 361, 41 Atl. 792.

These principles, which are generally approved and may be regarded as settled law, are very clearly stated in Crittenden v. Scher

her with necessary wearing apparel or with sufficient money "to procure the same." By this prayer the appellee's right to recover rested upon the hypothesis of an agency in fact, not arising from or necessarily incident to the marriage relation, and as the authority of the agent under such circumstances could have been terminated by the principal at any time before it was executed (1 Mechem on Agency, par. 563), whether the principal had terminated his wife's agency before she purchased the articles in question was, under the circumstances of the case a material and important fact to be considered by the jury in determining whether at the time Mrs. McFerren made the purchase she was acting as her husband's agent. There was proof in the case that the appellee had been notified by the appellant, prior to the day on which the greater part of the articles were purchased, that he would not be responsible for any debts not contracted by him personally. He testified that he himself signed such a notice and mailed it, properly addressed, to the appellee, and upon that proof a presumption arose that the appellee received it; and while one of defendant's officers testified he did not remember seeing the letter, and he was sure it had not been received, such testimony did not conclusively rebut the presumption of its receipt arising from the proof that it had been mailed, but was to be considered by the jury together with any other facts or circumstances tending to rebut such presumption. Lawrence Bank of Pittsburgh v. Raney & Berger Iron Co., 77 Md. 328, 26 Atl. 119; Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388, 135 S. W. 913, Ann. Cas. 1912D, 1062, 49 L. R. A. (N. S.) 468, note.

And since the statement in the prayer that

the plaintiff was entitled to recover if the jury found the facts stated therein in effect withdrew from their consideration the question of the revocation of the agency, it should not have been granted. Corbett v. Wolford, 84 Md. 429, 35 Atl. 1088.

The plaintiff's second prayer submitted in somewhat greater detail the same proposition as that set forth in its first prayer, and since it ignored entirely the testimony concerning the revocation of the wife's agency to purchase the articles in question for reasons already assigned, it, too, should have been refused.

[7] By the plaintiff's third prayer the jury were told, in effect, "that if McFerren and his wife were separated as a result of his misconduct that he was responsible for necessary apparel furnished by the plaintiff," and if she "had not means of supplying herself therewith" their verdict should be for the plaintiff.

wearing apparel through the fault of her husband did not in itself create a cause of action in favor of the plaintiff, it follows that this prayer should have been refused.

Two prayers were granted at the instance of Mrs. McFerren, but as the objections tr them were not pressed in this court, and as no reversible error has been discovered in the rulings in regard to them, then they need not be further discussed.

[9] The appellant's second, sixth, and seventh prayers, while they were, for reasons already stated, otherwise valid, were properly refused because they withdrew from the consideration of the jury the evidence in the case tending to show that the appellee was warranted in inferring from the appellant's course of dealing and his conduct that his wife was his agent in fact as distinguished from an agent in law or of necessity for him. There was proof in the case from which such an inference could have been drawn, and its weight was for the jury, to whom it should have been submitted.

Because of the errors pointed out in the rulings of the lower court on the prayers, it follows that the judgment appealed from must be reversed.

Judgment reversed with costs and cause remanded for a new trial.

Co. (No. 88.)

(137 Md. 632)

Its fourth prayer instructed the jury that if the "male and female defendants herein" separated by mutual consent "after May 7, 1919," and nothing was said then "as to his providing for her necessary wearing apparel, and that the articles purchased on May 20th were necessary wearing apparel, that the jury could infer that he intended that his credit should be pledged with the plaintiff," und the verdict should be for the plaintiff. The propositions announced by these two prayers, while inartificially phrased, are, in the main, correct statements of law, and the ATKINSON v. PHILADELPHIA, B. & W. R. fourth prayer was properly granted; but the third prayer is exceedingly misleading, in that it, in effect, withdraws from the consideration of the jury the testimony tending to show that the appellant paid his wife a. definite weekly allowance for her maintenance and support, the amount of which was fixed as sufficient for such purpose by agreement made by their respective counsel, which she ratified. For reasons already stated, such an agreement, if it existed, went to the very root of the appellee's case, and there was error in withdrawing it from the consideration of the jury, and for this reason this prayer should have been refused.

[8] The plaintiff's fifth prayer instructed the jury, in effect, that if the wife was without necessary wearing apparel through the fault of her husband, the appellant, and that she received "no money from him for such necessary garments," their verdict should be for the plaintiff, even though it had been notified on May 20th not to credit the wife. This instruction is palpably defective, in that it failed to require the jury to find that the plaintiff sold or supplied the articles in question, or, indeed, anything at all, either to the appellant or to his wife, and since in any possible aspect of the case the mere fact that Mrs. McFerren was without necessary

(Court of Appeals of Maryland. Jan. 13, 1921.)

Pleading 193(5)—A narr. which does not make out a good case against defendant is demurrable.

If a narr., conceding all its allegations to be true, does not make out a good case against the defendant, the point may be successfully made by demurrer, as well where the defendant is not the responsible party for the alleged act of negligence, as where the act itself does not constitute a good cause of action.

2. Evidence 34, 46-Courts judicially notice acts of Congress and executive proclamations.

The courts will take judicial notice of the acts of Congress and also of proclamations issued during the war and given general circulation.

3. Railroads 52, New, vol. 6A Key-No. Series-Road under federal control not suable for injuries within Employers' Liability Act.

Complete possession and control of railroads for all purposes was given the government by Congress and the proclamation of the President, so that under the Federal Control Act of March 21, 1918, §§ 8, 10 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 31154 h, 31154j), and executive Order No. 50, a railroad company cannot be sued for negligent acts of the government's servants re

(113 A.)

sulting in personal injuries within the federal do not agree with this contention. If the Employers' Liability Act. (U. S. Comp. St. narr., conceding all its allegations to be true, $8657-8665). does not make out a good case against the 4. Railroads 52, New, vol. 6A Key-No. defendant, we see no reason why the point Series-Road not suable for injuries occur- may not be successfully made by demurrer ring during federal control notwithstanding as well where the defendant is not responsilack of federal agent provided for by Trans-ble for the alleged act of negligence as where portation Act. the act itself does not constitute a good A railroad company cannot be sued for incause of action. Mardis v. Hines, Director juries occurring during federal control, though the federal agent, suable as provided in Trans-General of R. R's., et al (D. C.) 258 Fed. 945; portation Act Feb. 28, 1920, terminating con- Haubert v. B. & O. R. R. Co., et al. (D. C.) trol, had not been appointed when the suit was 259 Fed. 361. instituted.

ADKINS, J. This is an action for damages And if it be objected that section 10 refers for personal injuries by the appellant against to orders of the President and not to those the appellee under the federal Employers' of the Director General, such objection is anLiability Act of 1908 (U. S. Comp. St. §§ 8657-swered by section 8 of the act (U. S. Comp. 8665). St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 31154h), which provides that

section 10 of the act of 1918, is given by Judge Munger of the District Court of Nebraska in Rutherford v. Union Pacific R. R. Co. 254 Fed. 880. He held that what was meant was the "carriers while under federal control" that is, the Director General. He calls attention to the fact that the Act did not provide that action might be brought against the railroad corporation; and he refers to the concluding sentence of Sec. 10, as supporting this view, said sentence reading: "And in any action at law or suit in equity against the carrier no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government." He argues that this provision was necessary to give a right of action against a governmental agency, and was not intended to preserve the right of action against the railroad corporation.

master cannot command the alleged servant, then the acts of the latter are not his, and he is not responsible for them. If the principal cannot control and direct the alleged servant, not liable for his acts and omissions. In such then he is not his agent, and the principal is case the maxim respondeat superior has no application, because there is no superior to respond."

[4] The fact that at the time the suit in this case was docketed the Transport Act of February 28, 1920, effective March 1, 1920 (41 Stat. 456), had been passed providing for the termination of federal control on March 1st and for the appointment by the President within 30 days of an agent who might be sued for any liability incurred during fed eral control, and that such agent had not then been appointed, can make no difference. A party who is not liable cannot be sued simply because there is no one else to sue.

Another judge, in Schumacher v. Pennsylvania R. Co., 106 Misc. Rep. 564, 175 N. Y. [5] The only remaining question is whethSupp. 84, giving a different construction to er the trial court erred in refusing to permit the meaning of these words, was constrain- appellant, after the demurrer was sustained, ed to hold section 10 a violation of the Fifth to amend titling and declaration by adding Amendment of the federal Constitution. the names of John Barton Payne, Director It would be difficult to escape that conclu- General of Railroads of the United States, sion if we should adopt the construction giv-party defendant; and, if so, whether an apen the act by the appellant, as it would of- peal lies from such refusal. fend every sense of justice and right to hold that an individual or a corporation can be held responsible for an injury arising from the negligent use of property over which he or it has no control, or right of control.

In general no appeal lies from the ruling of a trial court on a motion to amend the pleadings. See 2 Poe, § 190; Scarlett v. Academy of Music, 43 Md. 203; Griffee v. Mann, 62 Md. 248.

And that complete possession and control [6] We find no error however, in this rulfor all purposes were given the government ing. If, as we hold, appellee was not a propby the acts of Congress and the proclama-er party defendant, then to have granted ap-tion of the President was decided in Northern Pacific Railway Co. v. N. D., 250 U. S. 135, 39 Sup. Ct. 502, 63 L. Ed. 897; Chief Justice White delivering the opinion of the

court.

As was said by Judge Sanborn in Brady v. Chicago & G. W. Ry. Co. 114 Fed. 100, 52 C. C. A. 48, 57 L. R. A. 712, speaking for the United States Circuit Court of Appeals for the Eighth District:

"The power of control is the test of liability under the maxim respondeat superior. If the

pellant's motion would have been, not to have permitted a defendant to be added, but to have permitted a sole defendant to be supplied. This cannot be done. See 2 Poe, 186; Code, art. 75, § 41; Wright v. Gilbert, 51 Md. 154.

We are glad the conclusion we have reached will not deprive the appellant of an opportunity to have his case heard against the proper defendant, if he has a meritorious cause of action.

Judgment affirmed, with costs to appellee.