ZEIGLER & HALL vs. DAVID, 23 Ala. 127

CHILTON, C. J. 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 things, that she is the wife of said Henry P.

David, and that, at the time of their marriage, she was possessed of and owned considerable property, consisting of lands, negro slaves, and live stock, a list of all which is given in the bill, and which, with certain moneys loaned her husband since their marriage, went into his possession and were then retained by him, except a small part which he bad sold to pay her debts to the heirs of Nicholas Zeigler, her former husband; that he had driven her from his home by repeated acts of cruelty, and threatened to run the property beyond the jurisdiction of the court.

The bill prays for a divorce a mensa et thoro, or from the bonds of matrimony, and for an order of seizure of certain slaves; also for a suitable provision to be made for the complainant’s support, and for an allowance fo/enable her to prosecute her suit. The bill was answered by the defendant, and after remaining in court until October, 1850, was dismissed by the Chancellor for want of prosecution. The defendant, in the court below, filed a demurrer to the declaration, Avbieh the court overruled, and which is, among other matters, hero assigned for error.

The first ground of objection to the sufficiency of the declaration, is, that there is no averment of any order of the Chancery Court permitting the plaintiff below to sue upon the bond.

No authority has been cited in support of this position; and, upon principle, we see no reason why a party against whom an injunction or process of seizure has been obtained, and who has been injured in consequence thereof, may not, after the suit in chancery has been abandoned by the complainant and dismissed for want of prosecution, institute his action at law to recover upon the bond, required to be given by the fiat as a pre-requisito to obtaining such process, without any permission from the Chancery Court.

True, the bond on which the action is founded constitutes a part of the record of that court; but our practice does not require profert to be made of it, and it is sufficient that the complainant produces it when demanded for the purposes of the trial. The next objection is, that the declaration fails to aver that the bill was dismissed upon the merits, or that the defendants in the court below had notice of such dismissal. We think it altogether sufficient to aver that the bill was dismissed generally, without stating the ground of the dismissal.

It amounts to a final disposition of the cause, adverse to the complainant, and entitled the defendant in the chancety suit to recover upon the bond such damages as he had wrongfully sustained by its exhibition and obtaining the process prayed for. As to the want of the averment of notice of the dismissal: It is only necessary to remark, that the dismissal of the bill was a matter peculiarly within the knowledge of the party whose duty it was to prosecute it, if founded on a meritorious ground of complaint; and hence, as one of the plaintiffs in error was the next friend of Mrs.

David, by whom the bill was filed, and both were parties to the record, being on the bond, they must be presumed to be cognizant of the disposition which was finally made of the cause. At all events, this matter does not more properly lie within the knowledge of the plaintiff below, than of the defendants, and in such cases it is well settled that no notice need be averred. — 1 Chitty on PI. 338, and cases cited in notes. As to the exclusion of the exemplification of the record of the second bill filed by Mrs.

David, and the bond given upon the exhibition thereof: We regret that the bill of exceptions does not set out this rejected proof, in order that we might determine upon its legal effect, and ascertain whether or not it was relevant. It is very certain that it was competent evidence, if the record showed that, by proceedings under the fiat, the slaves seized in the first suit, after the institution of the second, were in the custody of the law, or, which is the same thing, in the possession of one of the suitors in the Chancery Court, by its order.

It is competent for that-court to provide for the safe custody of effects seized by its process, and it will, in justice to its suitors, pending the litigation, so provide as to render the effects so tied up as productive as may be consistent with their safe-keeping or security. 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 slaves forthcoming to abide the final order and decree of the court,” then that a writ issue according to the prayer of the bill.

Neither the second bill nor the bond is set out; but, looking to the prayer of the first bill, we find that the complainant prays for an allowance as maintenance during the pendency of the suit, and also that the sum of five hundred dollars be paid her for the purpose of enabling her to prosecute her said suit against her husband, or such other sum as the Chancellor shall deem proper, “unless it should please the court to order and direct that complainant, by herself or her next friend, may give bond with security for the forthcoming of the said negroes, (the same mentioned in the bill of exceptions as seized under the process,) which complainant took away with her and has now in possession, to abide the decision of the court in the premises; in which event, complainant would nob pray for any allowance for maintenance, or for the prosecution of the suit, pendente lite,” &c.

The fiat upon the second bill would seem to be predicated upon this prayer, and to contemplate that the complainant should be allowed to retain the possession of the slaves; otherwise, it would not have required that her next friend should bind himself to have them forthcoming to abide the final order of the court. It is said that the second bond was taken “ in pursuance of this fiat, payable as and in the amount specified in said order,” &c. But, when speaking of it, the bill of exceptions states, that it was “ conditioned to pay the said Henry P.

David all such costs and damages as he might sustain by the wrongful suing out of the injunction and process,” and that it was similar to the bond set out in the transcript offered in evidence by the plaintiff in the court below, which is the transcript of the proceedings had in the first suit. It is not stated that any process of injunction or order of seizure was issued under the fiat, or that any bond had been given for the forthcoming of the slaves to abide the final decree to be made under this second bill; but merely that a bord has been given to pay such costs and damages as he might sustain, &c.

Now, without more, this does not tend to prove that the slaves mentioned in the bill of exceptions were within the custody of the law. No injunction against the husband’s maintaining an action, or taking said slaves into his possession, if he can do so peaceably, has issued, and no process has issued authorizing Mrs. David, or the next friend who exhibited the bill, to retain them.

So that the plaintiff in the court below might maintain his action at law for the recovery of the slaves; and as the subsequent bill and bond do not affect in any way the legal rights of the parties, the .record of them was properly excluded. 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 was alleged in the declaration, under a videlicet, that the chancery suit was dismissed on the 1st day of October, 1848, whereas, upon the production of the record, it appeared to have been dismissed at an adjourned term of said court lield on the 20th September, 1850 ; and thereupon the defendants moved to reject the record of tho chancery suit for the variance.

The court being about to sustain the objection, the plaintiff was allowed to amend his declaration, so as to aver the true date of the dismissal, and it is insisted by the plaintiff's in error, that in thus granting leave to amend, the court committed an error.— We do not think so. It has been held that, where an amendment makes a new case, as where it introduces new parties, or a change of parties, it cannot bo allowed after an issue is submitted to a jury.—Watkins v. Canterberry, 4 Por. Rep. 415.—But such is not the result here, and there was no reason for postponing the trial on account of it.

It was discretionary with the court to allow it, and wo doubt not that tho discretion was properly exercised. Banister v. Weatherford, 7 B. Monroe 271-2, is an authority in point sustaining such practice. W o come next to consider the main point relied upon by the counsel for the plaintiff's in error, which is, that they should have been allowed to show in the court below that the complainant in the chancery suit, Mrs.

David, was forced by the cruel treatment of her husband, the defendant in error, to abandon him, and that the labor and services of these slaves had been applied to the support of the wife while thus separated frotó him, and were not more than sufficient for that purpose. 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 necessary to attend upon and aid the wife, but that “the labor and services of the slaves were applied to the support and maintenance of the said Milly David, and that the value of such labor and services was not more than sufficient for her necessary support and maintenance;” clearly importing that the labor and services of the slaves were necessary as the means of procuring a support, and not that they were required to be expended in the personal attendance upon the wife.

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 necessaries. Ho it is with an Infant.

He may buy, but cannot borrow money to buy necessaries.” The reason given is that they may misapply the money. 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 thus be enabled to do indirectly what the law forbids should be directly done, and we are aware of no principle which will justify this.

It is true this bond is a contract to indemnify, but we think this furnishes no reason why we should give effect to a provision which the law deems in,valid, so as to abate or entirely to defeat the recovery, but must remit the plaintiffs in error to a court of equity to establish their right, if any they have, on account of Mrs. D5s use of the slaves. It follows from what we have said, that the court did not err in excluding the proof of the ill treatment of the wife by the plaintiff below, and of the application of the labor and services of the slaves to her support, &c.

We come next to consider the legality of the charges given, and those asked and refused by the court, and these may be briefly disposed of.

In the first charge, the court instructed the jury that, if they believed the evidence, and believed that the negro slaves had been taken out of the possession of the plaintiff under said writ, and had never been restored to him since they were so taken, and if they further found that the plaintiff was entitled to recover, then the measure of damages was the value of the hire of said negro slaves, from the time they were first seized by the sheriff up to the time of trial, without any interest whatever on such value.

It appeared that one of the slaves which had been taken under the process had died before the trial, but at what particular time, is not stated. We see nothing erroneous in this charge, prejudicial to the plaintiff in error. It is quite as favorable to his side, perhaps more so, than the law will warrant. It is clear that the death of one of the slaves does not affect the liability of the plaintiff in error for the hire, if he caused her to be taken from the defendant in error by a wrongful procedure. — 5 Stew. & Por. 123; 8 Por. 564 ; 7 Ala. 807.

It was not incumbent on. the plaintiff below to prove that the process, under which the slaves were seized, was sued out wrongfully, vexatiou.sly. and maliciously, as is supposed by the charge asked, nor was the record which was introduced evidence of itself that all these ingredients existed ; but it was not necessary to entitle the plaintiff to a recovery upon the bond for him to show malice in suing out the process. It was sufficient if it was. wrongfully sued out to enable him to recover the actual damage he had sustained.

Hence there was no error in the charge, which affirmed that it was not incumbent on the plaintiff to prove that it was wrongfully, vexatiously and maliciously sued out. The second charge asked assumes, that the process must be shown to have been wrongfully obtained, and that the transcript of the record of the bill of chancery, and its dismissal for want of prosecution, did not show this fact.

Although, as we have said, the first portion of this charge was clearly the law, yet, if the last portion of it asserts an illegal proposition, being asked as an entirety, the court was not bound to separate the legal from the illegal, but might properly refuse the whole. Was the transcript proof that the process was wrongfully sued out 1 We are clear, that it raises the prima facie presumption that it was, casting the onus on the other side to show that it was not.

Upon principle, there appears to be nothing unreasonable in holding that a party, who has obtained the property of another by the aid of a court, granted upon allegations which, if true, entitle him to relief, and that aid is withdrawn by a refusal to prosecute his plaint, should, when sued for the property thus taken, be required to show that he had a just ground of complaint, and consequently, that the proceedings which he abandoned were not wrongful.

Prima facie, he has made “ false clamor,” and having refused to maintain his suit, he virtually admitted, so far as that prosecution was concerned, that it was without foundation and wrongful. True, it does not conclude the complainant, who may bring another bill for the same cause : (3 Phil. Ev. C. & H. Notes, 926 ;) but, so far as that prosecution is concerned, it has ended adverse to the complainant, and has thus imposed on him the necessity of restoring what he has taken under the proceedings, or showing sufficient reasons why he should not do so.

In Crocker & Wife against Bolling, adm’r, at the present term, wo had occasion to determine upon the effect of a dismissal of a chancery suit for want of prosecution, as evidence in a suit brought to recover back money which had been received by the complainant in the bill, under a decree which had been reversed; and we there held, that the burthen of proof, showing a right to retain the money, by the reversal of the decree and dismissal of the bill, was cast upon the party who received it.

The only difference between the cases is, that, in this, property was received under an interlocutory order; in that, money was collected under a final decree which was reversed, and the bill afterwards dismissed for want of prosecution. But, we repeat, the mere dismissal of the bill, even had it been obtained upon a full hearing on the merits, would not establish malice, as was decided in Marshall v. Betner, 17 Ala. Rep. But this is an action on the bond, and no question as to malice is involved as an element of the right to recover.

The court was further requested to chai’ge, that the plaintiff could not recover for the value and services of the slaves after the defendants with others gave a new bond, conditioned for the forthcoming of said slaves to abide the final decree, but refused so to instruct. We do not think this forthcoming bond affects in any way the plaintiff’s right to recover upon the bond in suit.

The giving of this second bond is a part of the proceedings in the cause, incidental to the exhibition of the bill and seizure of the slaves, and whilst it furnishes cumulative security for the forthcoming of the slaves, it in no manner lessens or affects the damages consequent upon the suing out the order of seizure.

Moreover, the slaves having been taken from the plaintiff’s possession by virtue of the process, to indemnify against the unlawfnl effects of which the bond in suit was executed, the plaintiff has the right to recover remuneration upon that bond, for the hire of the slaves down to the time of trial, as they had never been restored to his possession. This view also covers the last charge requested, but refused, which sought to limit the recovery for hire to the period preceding the dismissal of the bill.

We can perceive no reason for stopping at that point, since the damage is continuous, and is as much the consequence of the improper seizure after the dismissal as before. 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.