23 Ala. 127 | Ala. | 1853
This was an action of debt brought by Henry P. David against the plaintiffs in error, Edward J. Zeigler and W. T. Hall, to recover upon a bond in the penalty of five thousand dollars, executed by them and William K. Pickett, on the 14th day of January, 1848, payable to said David, and containing a condition ££ to indemnify said David for all costs and damages he may wrongfully sustain by the suing out certain process issuing from the register of the Chancery Court in Wetumpka, by the order of a circuit judge, acting as chancellor pro hac vice; by which order certain negro slaves were required to be seized and disposed of by the sheriff, as therein directed.”
The fiat upon which the process issued, was made upon the exhibition of a bill by Mrs. Milly David, by said Zeigler and Thomas H„ Hall, her next friends, charging, among other
The bill was answered by the defendant, and after remaining in court until October, 1850, was dismissed by the Chancellor for want of prosecution.
It appears that the slaves seized under the process obtained upon the exhibition of tbo first bill, were in Mrs. David’s possession when the second bill was filed. It is said in the bill of exceptions, that the second bill contained substantially the same allegations as were set forth in the first, and that tlio fiat granted upon it directed the register that, if the next friend of the com- ' plainant should enter into bond in double the aggregate value of the slaves, whose names are set out, C( conditioned to have said
It may be that the bond conforms to the fiat, and thus leaves the slaves in the possession of Mrs. David, upon the security afforded by it, that they shall bo forthcoming to abide the final order to be made in the cause; and the Chancellor, in the exercise of his enlarged discretion upon the subject of alimony, may order the services of slaves thus held to go towards the support of the wife, and in lieu of a provision for her pendente lite; but this is not shown by the bill of exceptions, and by this alone we must be governed. As tho matter is brought to view by the record before us, there was no error in excluding the evidence of the second bill and bond.
It is an unquestionable rule of law, that if a husband turn his wife out of doors, or by his misconduct compel her to leave him, she goes forth under such circumstances to the world with an implied credit for necessaries. In other words, he is bound to provide her with necessary lodging, clothes and subsistence, and in case of her sickness, medicines, medical attendances and reasonable expenses incurred during illness ; and if he fails to make such provision, she may obtain the same on his credit, and the person so making it, may sue the husband and recover therefor. Roper on Hus. & W. 110, 111; McQueen on H. & W. 140; Clancy on H. & W. 28, 29; Story on Contracts 114 § 107 ; Chitty on Con. 3.73.
The position in the caso before us is rested by the counsel on this principle. He contends that, as these slaves were placed in the possession of Mrs. David, and furnished her a necessary support, that consequently her husband is the debtor to the plaintiffs in error, to the extent of the value of that support, and in an action to recover for the hire of the slaves, or for the slaves and hire by way of damages, the defendant has the .right to recoup the value of the support thus provided for the wife.
The doctrine of recoupment has been very ably discussed, and we are not disposed to gainsay the soundness of the authorities cited by the counsel for the plaintiffs in error. But there is a point which was not argued by the counsel, or noticed merely incidentally, which in our opinion renders the doctrine wholly inapplicable to the present case. It is this: conceding that the plaintiff in error would have a right to recoup for necessaries furnished the wife, in an action against him on the bond given by him as one of the next friends of the wife, can the indirect provision made for the wife’s support by leaving these negro slaves with her, bo regarded as providing necessaries for her, as that term is understood by the courts of law 7 We are clear, both upon principle and authority, that it cannot. We will not say that there are no cases where the wife might not claim as necessary the actual service of domestics, and bind the husband for their hire, hut the case before us is not that; for here it is not claimed that the actual services of the slaves were
If the husband could be charged for such a provision made for the wife, it would in many cases prove ruinous to both husband and wife; for, if the slaves should be taken sick, or by mismanagement their labor should not only prove unproductive but bring their possessor in debt, the provision, however ample it might have been under other circumstances, would fail altogether, and yet the husband would be bound for the hire of the slaves. The law empowers the wife to contract for necessaries, but not for the means by which she may procure them, and which at the same time she may misapply to some other object, or which, if not misapplied, may prove expensive or profitable as they are improperly or providently employed. She is not to become a trader or planter, or carry on any business as the means of procuring a livelihood, upon capital furnished at the husband’s expense; but he is the proper person to manage his own business, and to work his own slaves, being liable for her support.
There is no difference in principle between the wife’s borrowing money with which to purchase necessaries and being furnished with slaves as the means for procuring them, except that the latter is liable to greater objection, arising from the precarious nature offthe means employed, resulting from the liability of the slaves to sickness, or to escape from service, or from her incapacity to manage them profitably. Now it has long been the settled law, that money loaned to an infant or to a married wo-' man is not to be regarded,^?! a court of law, as necessaries, even though it were expended in the purchase of such articles as the infant would have been liable for, had he purchased them on a credit, or the husband would have been bound for, had the wife thus purchased them.
In Earle v. Peale, Salk. 386, it was said by Parker, C. J., “ a feme covert may buy necessaries, and her act may make the husband liable, but she cannot borrow money to lay out for ne
In Darby v. Boucher, Salk. 219, the money borrowed had been actually laid out by the infant for necessaries, yet held that he was not liable to the lender.
The same doctrine is asserted in Ellis v. Ellis, 5 Mod. Rep. 368, and is laid down by Mr. Roper in his treatise upon Husband and Wife, p. 112, In a court of equity, however, it has been held that the lender should be, as it viere, subrogated to the rights of the party who furnished the necessaries. So in Havris v. Lee, 1 Pr. Wms. Rep. 483, it was said, “ admitting the wife, at law, cannot borrow money though for necessaries so as to bind the husband, yet this money having been applied to the use of the wife for her cure and for necessaries, the plaintiff who lent it must stand in the place of the persons who found and procured the necessaries for the wife, and therefore, as such persons would be entitled to recover of .the husband as his creditors, so the plaintiff shall stand in their place.” The same doctrine was re-asserted in Marlow v. Pitfield, ib. 559. Mr. McQueen (H. & W. p. 141) says, “ the furnishings must truly be necessaries within the meaning of the term as explained by the decisions;” citing Emmett v. Norton, 8 Car. & Payne 506; see also 2 Leigh’s N. P. 1093, mar.
These authorities may suffice to show that, in leaving the slaves with Mrs. David, the plaintiff in error did not, in legal contemplation, furnish her with necessaries, so as to charge her husband in a court of law. How the matter should be viewed in a court of equity is a different question, and one upon which we express no opinion.
Having, therefore, made a provision for the wife, which in a court of law fails to charge the husband, we see no ground upon which the plaintiff in error can insist upon such provision by way of discount or abatement of the damage in the nature of' recoupment. We are aware that, of late years, the courts, in order to avoid circuity of action, have been disposed to extend this doctrine to a very great length, but we think no well considered ease has ever pushed it to the extent now contended for.— It is manifest that, if the plaintiff in error is allowed to recoup for the hire and services of the slaves in this action, he would
After the best consideration which we have been enabled to bestow upon this ease, we have been unable to perceive any error in the several rulings of the court, and consequently the judgment must be affirmed.