May v. Smith, Edwards & McKeithen

B. F. SAFFOLD, J. Are the professional services of-a physician, and medicines furnished by him to a family, suitable to their degree and condition in life, and for which the husband would be responsible at common law, a proper charge against the separate estate of the wife, under section 2376 of the Bevised Oode? Are the children of the husband by a former marriage such members of the household or family, when residing in it, as is contemplated by that statute? The preservation of the property is subordinate to the subsistence of its possessors. Personal service at times is as indispensible to life as food and raiment. The law, in subjecting the wife’s separate estate to articles of comfort and support suitable to the degree and condition in life of the family, thus admitting of much expansion, could not have intended to exclude those services of charity and duty which no wealth or position can dispense with, and no poverty or obscurity should be deprived of. There are some services of the physician or surgeon of so costly a character as perhaps ought to debar them entirely, unless in extreme cases, or greatly reduce the compensation usually claimed for them. The essence of a contract, express or implied, must be perceptible in all such demands, to entitle them to a charge upon the property at all, but as the mu [490] tuality of agreement is imperfect, the creditor can not claim beyond the ability of the estate to respond, in view of more pressing obligations upon it. Under the evidence, the wife’s separate estate is subject to the account against herself and her children.—Owen v. White, 5 Por. 435; 1 Par. on Contr. 253-6; Rev. Code, § 2376. The separate estate of the wife is certainly not liable to the extent her husband would be in a corresponding case. A husband is not responsible for the child of his wife by a former husband, but if he takes him into his house, he assumes, perhaps, the responsibility for his maintenance, so long as he retains him as one of his family. Whatever this responsibility may be, it is by virtue of his voluntary undertaking, which can not be said of the wife, or of her estate. The obligation of the husband rests upon as broad a basis as any other of his contracts. The wife can give no legal consent about the matter at all. The principle which would subject her estate to the expenses of her husband’s children, would render it liable to his debts generally. — 1 Parsons on Contracts, p. 257; Cooper v. Martin, 4 East, 76. The judgment must be treated as single, and reversed entirely. It follows the form prescribed in Ravesies v. Stoddart & Co., (32 Ala. 590,) but that does not admit of joining claims against the husband only, with those which may be charged against the wife’s property. The general rule of pleading respecting the joinder of parties and causes of action was not intended to be changed. It would be unjust to burden the estate of the wife with the cost of defending suits against her husband, for which it was not liable. We prefer Judge Stone’s dissenting opinion in the above case concerning the form of the judgment. No particular phraseology is required, so the entry expresses what the judgment should ascertain. A judgment against the husband alone, with execution which may be levied on the property of the wife subject to it, would be sufficient. One against both of the defendants, with execution, in respect [491] to the wife, to be levied in like manner, would not impose any personal liability on her. The record shows in what capacity she was sued, and the law defines her liability. A judgment against an administrator de bonis intestaUs, fixes no personal liability on the representative. Neither would one against a wife be satisfied out of property owned by her at an ascertained time. The judgment is reversed, and the cause remanded.