(dissenting.) The recovery in this case is for damages which the plaintiff alleged he sustained in consequence of the defendant’s selling opium to his wife, the defendant being a druggist, and knowing, or having good reason to know, that the plaintiff’s wife was using the same in such quantities as to injure her health; and the jury having been instructed that the defendant was liable to the plaintiff for the damages which the husband had sustained in consequence of her loss of health, the recovery included damages for the plaintiff’s loss of the services of his wife, as well as the loss of her comfort and society while in ill health, caused by the improper use of opium. The defendant made the point, on the trial, that the action could not be maintained, and asked for a non-suit, which was denied.
In my opinion the action is not sustainable upon any ground known to the common law, and that the motion for a nonsuit should have been granted.
I have been unable to find a precedent for' such an action; and although this is not a sufficient reason to refuse a remedy, still the action must be brought within some acknowledged principle of law, or it will fail. There are many cases where such an action would be maintainable, if the principle upon which the action is based can be defended. Persons who sell intoxicating liquors would be liable, in an action, to the husband, for selling them to his wife, as a beverage, and also for selling them to his children, and yet no such action has been brought at common law, although the evil is one of great magnitude, and often resulting in very great damages to the husband and parent. This must have been the sense of the legislature; *213and to remedy the defect of the common law in not providing a remedy in such cases, the sale of intoxicating drinks to persons guilty of habitual drunkenness was declared unlawful by the act of 1857; and hotel keepers were made liable for all the damages which might be sustained in consequence of such sale. (Laws of 1857, ch. 628, §§ 21, 29.)
Druggists are not under any contract or legal liability to husbands for selling medicines to their wives, or to parents, for selling medicines to their children. Physicians who prescribe for them are under a legal obligation to use proper skill, and if they fail, are liable for mal practice. But druggists and chemists are confined to the due exercise of their business, to the preparing, compounding, dispensing and vending drugs and medicines and medicinal compounds. (Chitty on Cont. 481.) Eo ease can be found where they have been made liable because the persons to whom the medicines were sold made an improper use of them. It was not illegal for the plaintiff’s wife to use the opium sold to her, in excess, so as to injure her health; but if it had been, the defendant would not have been liable, unless he had been guilty of something worse than the mere act of sale, by means of which she was enabled to perpetrate the- wrong. This is dedticible from several cases where the question has arisen as to the liability of a merchant who sells goods, knowing or having reason to know, that they are to be used for smuggling purposes or to evade the revenue laws. If nothing can. be proved against him except the bare act of sale, he. is not responsible for the subsequent unlawful acts of third persons who purchase with intent to commit a public or private wrong, however strong may be his suspicion that the purchasers intend to use the goods for illegal purposes.
There are many cases of moral obligation which may be violated, without responsibility to third persons who are indirectly injured in consequence of it. The moral duties *214which one man owes another are not the foundation of an action. It is only when the law creates a legal duty, that a violation of it can be made the basis of an action.
Bow what duty did the defendant in this case owe to the plaintiff? If we grant that he was unkind and unneighborly in not advising the husband of his suspicions that the wife was injuring her health and endangering her life by the improper use of opium, we must concede that he was under no legal obligation to communicate the information. Unless the defendant was legally bound to communicate his suspicion to the husband, his refusal to sell her any more opium would have been of no practical benefit to the husband; for without doubt she could have as easily supplied herself at some other store. The sale of opium was not illegal, and no one could have been made responsible for the mere act of sale.
But the action in this case entirely relieves the plaintiff’s wife of responsibility to her husband for her improper use of the article—I speak of moral responsibility—for it is to be observed that the'wife was under no legal restraint, nor could she be put under any legal restraint, not to use opium. If there was any way known to the law to enforce the social and moral. obligations which the husband owes to the wife, or the wife to- her husband, in respect to the use of hurtful stimulants, there would be more occasions for wives to restrain their husbands than for husbands to invoke the aid of the law to restrain their wives.
A wife has no legal control over her husband, nor has he any legal control over his wife if she chooses to indulge in the improper use of opium. He may sometimes withhold from her the means of procuring such articles, but in a majority of cases she has means of her own, or can find some way to procure such articles, without calling upon her husband. It will not, I think, be maintained that the husband can punish his wife and prevent the evil in that way.
*215Whatever may be the common law on the subject, the moral sense of this community, in our present state of civilization, will not permit the husband to inflict personal chastisement on his wife, even for the greatest outrage. (Perry v. Perry, 2 Paige, 503, Walworth, Chancellor.) Bor can he, it seems, obtain legal control of her person so as to prevent her going out at her pleasure. It was held in a recent case in England, that she may voluntarily absent herself from her husband, and that a court of common law has no jurisdiction to issue a writ of habeas corpus to bring up her body, unless she is restrained of her liberty. In ex parte Sandilands, (12 Eng. L. and Eq. 463,) Lord Campbell said that “if she were brought up we could only inquire of her where she would go; we could not compel her to return to her husband.” Sir F. Kelley (solicitor-general) declared: “ It may be questioned whether she can legally have any will independent of that of her husband.” And this remark, at least, has some foundation in the decisions in some of the old reports. But Lord Campbell declared, in his opinion, “that the relation between husband and wife was different from that of parent and child. The parent has a right to the custody of the child. * * * But a husband has no such right, at common law, to the custody of his wife.” Bishop, in his treatise on Marriage and Divorce, (§ 756,) says “ that the English right of the husband to restrain in special circumstances the wife of her liberty, does not prevail with us, generally.” He further observes, “ there is in this country, where the ancient chivalry never literally prevailed, an increasing tendency in the law to look upon a woman as a being possessed of a human soul like man, and accountable, like him, to a higher power. And if the wife, with us, should desert her husband or behave herself improperly, there is over her the same law as over the husband in like circumstances.”
Although the plaintiff’s wife was responsible to no *216human tribunal for her conduct, she was doubtless morally responsible to her husband and her God, for indulging a habit which in a measure rendered her unfit to discharge her obligations to eithér. If the defendant had been her physician or adviser, or if there had been a legal obligation on his part to withhold from her the means by which she was enabled to gratify her appetite, there are grounds upon which this action could be sustained. It is for the legislature, and not the courts, to invent a remedy for such a wrong, if the public good requires it. But while the woman is regarded as a responsible being, capable of determining for herself what is for her own good, third persons who supply her with implements of destruction in the lawful pursuit of their business, cannot be made civilly liable for her wrongful act in using them in an attempt to perpetrate suicide.
The case would be different if the defendant had any knowledge that the plaintiff’s wife intended to commit a crime; for then he would be under a legal as well as a moral obligation to discover and prevent it. But here was was no illegal act meditated, and none in fact committed.; for I take it, there is no common or statute law which could have been invoked to restrain the plaintiff’s wife from taking opium, if or can it be presumed that she intended to commit suicide, or that' the defendant had any suspicion that she intended anything of the kind. "No such' ease was proved on the trial, or submitted to the jury. The most that can be claimed is, that she was indulging in a habit which was injuring her health, and depriving her husband of the benefit of her services and the advantages of her society. The defendant was guilty of violating no law in selling her the opium by means of which she was enabled to indulge her habit: He was under no legal obligation to withhold the sale, or to notify the husband. "Whatever moral wrong he .committed, (and it was doubtless inexcusable,) it will niff *217ray the foundation of an action by the husband to recover damages.
[Onondaga General Term, October 1, 1867.The wrong in this case, if it could be regarded as a legal wrong, was committed by the wife of the plaintiff, and not by the defendant; and in such a case no action lies against him who indirectly gives occasion for its commission. Thus in Vicar v. Wilcox, (8 East, 1,) the defendant asserted that his cordage had been cut by the plaintiff, in consequence of which the latter, who was hired for a time certain, was discharged by his master; Eeld that no action lay, the damage being the wrongful act of the master, and not the legal and natural consequence of the words spoken. And in Ashley v. Harrison, (1 Esp. 48,) a performer employed by the plaintiff* was libelled by the defendant, and in consequence refused to appear on the stage. It was alleged as special damage that the oratorios had been very thinly attended on that account. Eeld that the injury was too remote; and per Lord Kenyon: “ If this action is to be maintained, it may equally be supported against every man who circulates the glass too freely and intoxicates an actor, by which he is rendered incapable of performing his part on the stage.” (2 Pars, on Cont. 457, note p.)
Under any view of the case, I am unable to discover any ground upon which the verdict can be sustained.
The judgment should be reversed and a new trial granted, costs to abide the event.
Order of the special term affirmed and judgment entered for the plaintiff*.
Bacon, Foster, Mullin and Morgan, Justices.]