
    Asa Wood vs. Browning O’Kelley.
    A husband is liable for suitable and necessary medicines and medical advice furnished to his wife in his absence; but he is not liable for medicines and advice so furnished by a party not professing to be a physician, or to have any medical skill or knowledge of diseases or their remedies.
    A dormant partner need not join in an action brought in behalf of the firm by the ostensible partner against a person who dealt with the latter only.
    This was an action of assumpsit, brought to recover the amount of an account annexed to the writ, and tried in the court of common pleas before Mellen, J., who signed the following bill of exceptions: —
    “ To sustain the action, the plaintiff’s book of original entries supported by his suppletory oath was offered in evidence. In the course of his examination, the plaintiff stated, that the defendant’s wife called on the plaintiff for examination and advice; that he put one Mrs. Davis into a mesmeric sleep, and thereupon she became a clairvoyant, and in this state discovered and declared the nature and character of the complaints, and prescribed the medicines; that he purchased all the materials used as medicines, out of these materials he' compounded the medicines according to the directions given by Davis while in mesmeric sleep, and that they were delivered to the patient to be used in the form of plasters, drops, &c., as specified in the account annexed .to the writ; that the books were kept in the plaintiff’s name; that for all medicines and examinations, after payment of the costs, the net profits were equally divided between them, and that Davis Was equally interested with himself in his account.
    “ The defendant contended that he was not responsible for such services rendered to his wife, and that if he were, this action could not be maintained in the name of the plaintiff, inasmuch as a partnership existed between the plaintiff and Davis. It appeared in evidence, that during' the time these medicines and advice were given to the defendant’s wife, the defendant was at sea.
    “ The presiding judge instructed the jury, that the husband was bound by law to maintain the wife, to furnish her with necessaries, such as meat, clothes, medicine and medical aid, suitable to the husband’s station, estate and circumstances ; and in the absence of the húsband, the wife, not being provided by the husband with such necessaries, was clothed by the law with power to make contracts for the same, and that such contracts would bind the husband; that in the absence of any dissent on the part of the husband, the wife would be authorized to procure such medical aid as her own iudgment in good faith might direct, and if the person applied to should in good faith render his services and furnish medicines, he would be entitled to recover of the husband a reasonable compensation for his services and for medicines so furnished. As to the copartnership, if they found there was a partnership, but that Davis was a silent partner, this action might be maintained.
    “ The jury found a verdict for the plaintiff, and upon being inquired of by the court, the foreman replied, that the jury found that Davis was a silent partner. Upon this, the court ordered a general verdict for the plaintiff. To the foregoing rulings the defendant excepts.”
    
      T. G. Coffin and A. Mackie, for the defendant.
    
      H. G. O. Colby, for the plaintiff.
   Fletcher, J.

A married woman may, in the absence of her husband, procure for herself necessaries, and among other things, necessary medicine and medical aid and advice, for which the husband will be liable. This is the general rule of law. But this is an abnormal case, and if the plaintiff did not profess to be a physician, or to have any medical skill, then, as a matter of law, the services and the applications of the plaintiff were not necessaries for which the defendant is liable.

If, however, the plaintiff professed to have medical skill and a knowledge of diseases and their medical remedies, so as to bring himself primd facie within the rule of law, then the jury should have been instructed to find, as matter of fact, whether under the circumstances of the case, the plaintiff had furnished the wife of the defendant with suitable and necessary medicine and medical advice and aid, and if so, to what amount, and for the sum so found the defendant would be liable.

From the bill of exceptions in this case, it does not appear that the plaintiff professed to be a physician, or to have any medical skill or knowledge of diseases, or their medical remedies, and, of course, it does not appear, that he has furnished the wife with any necessaries within the rule of law, for which the husband can be rightfully charged. The law does not recognize the dreams, visions, or revelations of a woman in a mesmeric sleep as necessaries for a wife, for which the husband, without his consent, can be held to pay. These are fancy articles, which those who have money of their own to dispose of may purchase, if they think proper, but they are not necessaries, known to the law, for which the wife can pledge the credit of her absent husband. The charge of the court was confined to a statement of the general principles of law, and did not apply with sufficient plainness and directness to the singular facts, disclosed by the evidence, so that the jury were not instructed as to the legal rights and liabilities of these parties, under the peculiar facts and circumstances pf this case. The jury should have been instructed, according to the principles before stated, that if the plaintiff did not profess to be a physician, or to have medical skill, or a knowledge of diseases and their medical remedies, then, as matter of law, the defendant was not liable; but if the plaintiff professed to be a physician, and to have such skill, so as to bring himself primd facie within the rule of law, then the jury should have been instructed to find whether the plaintiff had in fact furnished necessary medicine and medical aid and advice to the defendant’s wife, and if he had, that the defendant would be liable for such necessary supplies.

It is not necessary particularly to consider the other exceptions in the case. It is no doubt the province of the court to instruct the jury what facts will, in law, constitute a copartnership, leaving the facts to be found by the jury. It is not necessary that a dormant partner should join with the ostensible partners of a firm, in an action against a person wi: o dealt only with the ostensible partners.

Verdict set aside omd new trial granted in the court of com mon pleas.  