(108 A.) bought by the wife which in fact went to the support of herself and minor children, though the husband had notified such merchant not to extend further credit to the wife. Appeal from Court of Common Pleas, Fairfield County; John R. Booth, Judge. Action by the Howland Dry Goods Company against Joseph R. Welch. From judgment for plaintiff, defendant appeals. No error. The defendant and his wife were married subsequent to April 20, 1877, and lived together with their two minor children until August 17, 1916, when the defendant, as a result of domestic troubles, left his wife children and had not returned to them prior to this trial. Prior to August 10, 1916, the defendant had provided for a part of the support of his family and his mother had provided for part. The defendant had also authorized his wife during this period to purchase upon his credit such goods as she deemed necessary for herself and children, which she had done, from the plaintiff and others, and the defendant had paid for the same. Without the support provided by such authorization the support otherwise provided by the defendant for his family would have been insufficient. On September 12, 1916, the defendant, learning that his wife was about to purchase goods on his credit of the plaintiff, and believing that she would purchase more than were necessary, telephoned plaintiff forbidding a sale by it to his wife upon his credit. The plaintiff, however, sold goods to the wife to the net amount of $89.54. On September 15, 1916, the defendant gave plaintiff written notice that he would not be responsible for purchases by his wife from plaintiff. Subsequently, and without notice to defendant, plaintiff sold goods to the wife of defendant to the net amount of $35.25. All of the articles so purchased by the defendant's wife after September 12, 1916, were necessary for the support of the wife and minor children. The defendant failed to provide necessary support for his wife except as herein set forth. Edward K. Nicholson, of Bridgeport, for appellant. sonable apparel of the wife, or for her reason-able support, while abandoned by her husband." [1] The defendant insists that the last clause of this section, "while abandoned by her husband," governs all of the preceding clauses and as no abandonment has been found no action arises. The same question was before us in Paquin v. Westervelt, 93 Conn., 106 Atl. 766, and we there determined that the clause "while abandoned by her husband" referred to the clause immediately preceding it, viz. "or for her reasonable support,' and not to the clauses preceding this. This construction of the statute must be regarded as final. [2] Another assignment of error is in the holding of the court that the defendant failed to provide necessary support for his wife and children. The remedy of the statute does not rest upon such a finding, but rather upon a finding that the purchases "have in fact gone to the support of the family." If this fact were a prerequisite to this remedy, we think the finding sufficiently explicit to include it. True, it is not specifically found, but the finding that the purchases "were necessary for the support of the said wife and minor children" involves this, and should be regarded as its equivalent. [3] The principal assignment of error which is pressed in the brief of defendant is in the holding of the court that the defendant was liable for the purchases by the wife after defendant had notified the plaintiff not to extend further credit to his wife. The point was determined in Paquin v. Westervelt, 93 Conn., 106 Atl. 766, where we said: "The statute was intended to permit a recovery by a third person for all articles which went for the sustenance or maintenance of the family without respect to what provision for their support had been made otherwise." If the defendant might notify one merchant he might similarly notify several. Credit is not only sensitive, but of long hearing, and other merchants in similar lines would surely hear of the action of their competitors and voluntarily refuse credit to the wife. The result would be the wife would not be able to procure suste nance or maintenance for herself or family and the purposes of the statutory remedy Carl Foster and Frederick E. Morgan, would be defeated. both of Bridgeport, for appellee. WHEELER, J. (after stating the facts as above). The case is based wholly upon the remedy provided by G. S. § 5275: "And both [husband and wife] shall also be liable when any article purchased by either shall have in fact gone to the support of the family, or for the joint benefit of both, or for the rea The possible hardship upon a husband who is in fact providing sustenance and maintenance for his family in having bills contracted for the same purpose against his will and in having purchases made from those with whom he does not desire to trade was undoubtedly weighed by the General Assembly. It balanced this with its desire to give to the wife a remedy more liberal than the common law gave her, one which [ other; the condition not failing because of such should in every case give her the right to nonsuit. Appeal from Court of Common Pleas, Hart procure upon the husband's credit suste- 5. ATTACHMENT 277-DISCHARGED UPON nance and maintenance for his family when ACCEPTANCE OF DEFENDANT'S BOND. these had in fact gone to the family support. Though plaintiff in attachment had the right It made this fact the decisive factor. It to either permit or refuse the substitution of made both wife and husband liable for such a bond as security in place of attachment, the support. Neither husband nor wife would acceptance of defendants' bond effected the subbe called upon to pay for what had not in stitution of security; the attachment disapfact gone to the support of the family. Sup-pearing, and bond being held as the only seport provided in this way lessened the obli-curity for the satisfaction of a judgment. gation of the husband to provide support in the ordinary way, and the excess of obligation which might be imposed upon him ford County; Edward L. Smith, Judge. would be limited and largely in his control. It would be the exceptional case when a wife living with a husband providing adequate support used his credit to provide support for herself and family. Whether the General Assembly should or should not have placed limitations upon this remedy is beside the point. We take the statute as we find it. There is no error. The other Judges concurred. (94 Conn. 91) FAZZANO v. MARTIN et al. (Supreme Court of Errors of Connecticut. Dec. 22, 1919.) 1. ATTACHMENT 184- PROPERTY MAY BE RELEASED BY AGREEMENT. While the statutes provide a convenient method for the compulsory release of attachment, they neither exclude nor impair the right of parties to reach the same result by voluntary mutual agreement. 2. ATTACHMENT 263-BOND BY DEFENDANT VALID THOUGH NOT IN COMPLIANCE WITH STATUTE. That bond executed by defendants for release of attachment was not in the form prescribed by Gen. St. 1918, § 5888, did not effect validity of a bond. 3. ATTACHMENT 338-SCOPE OF BOND NOT IN STATUTORY FORM DEPENDS ON INTENT OF PARTIES. The scope and extent of bond executed by defendants for release of attachment not in the form prescribed by Gen. St. 1918, § 5888, will be gathered from the intent of the parties as disclosed by the fair import of language of the guaranty. 4. ATTACHMENT 334-No FAILURE OF CONDITION OF FORTHCOMING BOND BY NONSUIT AS TO ONE DEFENDANT. Bond executed by defendants for release of attachment conditioned on payment by defendants of "any judgments that may be recovered against them," construed to protect plaintiff upon rendition of judgment against one of the defendants, notwithstanding nonsuit against the Action by Dominick A. Fazzano against Joseph Martin and others. Judgment for plaintiff, and defendants appeal. No error. In an action for damages brought by the plaintiff against Joseph Martin and Margaret Martin, an attachment was made of "a stock of groceries and business fixtures as the property" of the two defendants. On the same day and at the office of the deputy sheriff who had made the attachment, a joint and several bond was executed to the plaintiff by the two Martins, as principals, and Mary Purgatorio, as surety, reciting the attachment of property of both the Martins, and conditioned that "If the said Joseph Martin and Margaret Martin, shall pay any judgments that may be recovered against them in such action or in default of such payment shall pay to the officer having the execution issued on such judgment on demand, the amount of the judgment together with the fees and costs then this bond shall be void, but otherwise in full force and ef fect." Although the finding is silent upon the point, the acceptance of this bond by the plaintiff and the release of the property from attachment are necessarily implied from all the established facts. The writ was duly returned to court, and the case proceeded to trial where a judgment of nonsuit was rendered in favor of Margaret Martin, and the plaintiff had judgment for a substantial sum against Joseph Martin. Execution was issued and returned unsatisfied after due demand. The judgment remains wholly unpaid. In this action the bond was made a part of the complaint, and the defendants demurred upon the ground that the condition of the obligation was to pay only a joint judgment recovered against both Martins. The demurrer was overruled, and the several assignments of error are based upon that ruling, and upon the refusal of the court to sustain the same claim upon the trial of the case. William F. Mangan, of New Britain, for appellants. Josiah H. Peck and Richard V. Blake, both of Hartford, for appellee. (108 A.) CASE, J. (after stating the facts as above). | (N. Y.) 62; Heynemann v. Eder et al., 17 Cal. [1-3] While the statutes provide a convenient 433; Poole v. Dyer, 123 Mass. 363. method for the compulsory release of property withheld by attachment, they neither exclude nor impair the right of parties to reach the same result by voluntary mutual agreement. Robertson & Govanne Const. Co. v. Etna Acc. & Liab. Co., 91 Conn. 129, 99 Atl. 557; Mosher v. Murphy, 121 Mass. 276, 278. That the bond here is not in the form prescribed for proceedings under the statute (Revised Statutes, § 5888) is therefore without other significance than to leave the scope There is no error. The other Judges concurred. UNDERWOOD v. CRAY. CRAY v. UNDERWOOD. (No. 184.) 7, 1920.) and extent of the undertaking embraced in (Supreme Court of Vermont. Windham. Jan. it to be gathered from the intent of the parties as disclosed by "the fair import of the language of the guaranty." Lewis et al. v. 1. APPEAL AND ERROR 1048(1)—IRRESPONDwight, 10 Conn. 95, 99. [4] The only claim urged by the several assignments of error is that the bond was conditioned upon a judgment against both defendants, and that its condition therefore failed when the plaintiff suffered a nonsuit as to one of them. We cannot so narrowly read the obligation without ignoring its plain purpose. "Attachments are made for the benefit of creditors, but the provision for the discharge of the property attached is made for the benefit of debtors." Inbusch v. Farwell, 1 Black (66 U. S.) 566, 572 (17 L. Ed. 188). [5] For every purpose of ours, the record fixes the ownership of the property in both the Martins, and, so far as appears, it was applicable to the satisfaction of any judgment recoverable by the plaintiff against either or both. It was plainly to the plaintiff's advantage to retain this unqualified hold on it which the attachment gave him, while the interest in securing its release was one that the Martins shared equally. It lay wholly with the plaintiff to permit or refuse the substitution of security, but when this exchange was effected by his acceptance of the bond "the attachment disappeared from the scene, and the bond was held as the only security for the satisfaction of a judgment." Schunack v. Art Metal Novelty Co., 84 Conn. 331, 337, 80 Atl. 290, 293. In this situation and in the absence of unusual circumstances, we should expect to find any security so replacing the attachment at the instance of the defendants and for their benefit and convenience, bound to the same extent as had been the attached property which passed wholly beyond the plaintiff's reach by his voluntary surrender of his hold upon it. The condition of the bond is somewhat loosely expressed, but its language plainly demands this construction as expressive of the obligation which the parties reasonably intended. This view prevails elsewhere under conditions essentially identical with those presented here. Inbusch v. Farwell, supra; Gilmore v. Crowell, 67 Barb. SIVE ANSWER HARMLESS, WHERE COURT ORDERED JURY TO DISREGARD IT. No intention of plaintiff to go beyond the exception to the fact that he, when asked question and gain an advantage appearing, what defendant did, after describing defendant's violent assault on him, added, "And I suffered the greatest agony I ever suffered," is unavailing; the trial court having acted promptly and effectively by ordering this stricken and directing the jury to pay no attention to it, and the reviewing court believing defendant was not prejudiced. 2. APPEAL AND ERROR 501 (3) RECORD MUST SHOW EXCEPTION TO ADMISSION OF TESTIMONY. The record not showing that exception was saved to admitting certain testimony, no question is reserved. 3. WITNESSES 345 (1)-CONVICTION OF LES SER CRIME ADMISSIBLE TO AFFECT CREDIBILITY. To affect credibility of witness, his conviction, though not covering a crime involving moral turpitude, may, in the court's discretion, be shown. 4. WITNESSES 350, 359-RECORD OF CON For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 7. APPEAL AND ERROR 1048(7)--READING | There is nothing before us to show that PART OF RECORD OF CONVICTION OF WITNESS Underwood had any such intention when he SHOWING SENTENCE HARMLESS. answered as he did; the court acted promptly and effectively; we do not think that Cray was in fact prejudiced, and the exception is not sustained. Reading to the jury the part of the record of defendant's conviction, admitted to affect his credibility, which covered the sentence, cannot be said by the reviewing court to be prejudicial, as is necessary under the present prac-wood was allowed to testify that, prior to [2] Further on in his testimony, Undertice, presuming error to be harmless. Exceptions from Windham County Court; Leighton P. Slack, Judge. Two actions for assault and battery, one by Clinton P. Underwood against Stephen J. Cray, and the other by Cray against Underwood. Judgments for Underwood, and Cray brings exceptions. Judgments afirmed. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ. E. W. Gibson, of Brattleboro, and Warner A. Graham, of Bellows Falls, for Underwood. Barber, Barber & Miller, of Brattleboro, for Cray. POWERS, J. These cases were tried as one, both here and in the court below. They grow out of a series of fist fights which the parties indulged in at Bellows Falls in the fall and winter of 1918. To avoid confusion, the parties will be spoken of by name. Underwood based his action on what occurred on October 14, and December 8. Cray based his on what occurred on December 8, only. A jury trial resulted in a verdict for Underwood to recover $2,500, which included $500 of exemplary damages. Cray moved to set aside this verdict, for the reason, among others, that this award was unreasonable and excessive. Thereupon the court ordered Underwood to remit $1,000, which was done, and judgment was then rendered for $1,500. In Cray's case the verdict was against him, and judgment was so rendered. The cases are here on Cray's exceptions. [1] Underwood was a witness in his own behalf, and when he was giving his version of the trouble with Cray on December 8 he was asked by his counsel to tell what the latter did, and, after describing Cray's violent assault upon him, he added, "And I suffered the greatest agony I ever suffered in my life." The court, of its own motion, ordered this part of the answer stricken out, and directed the jury to pay no attention to it. Cray excepted to it. The exception is unavailing. It is not every irresponsive answer given by a party that will support an exception. Not only must such an answer be improper in substance, but it must be apparent that the party intends to go beyond the question and to gain an advantage. Sanders v. Burnham, 91 Vt. 480, 100 Atl. 905. December 8, he knew of Cray's having made assaults upon other persons. It is now urged that this was error. But the record does not show that an exception was saved; consequently, no question is reserved. Marcy v. Parker, 78 Vt. 73, 62 Atl. 19; Green v. Dodge, 79 Vt. 73, 64 Atl. 499; Townshend v. Townshend, 84 Vt. 315, 79 Atl. 388; Mellen v. United States H. & A. Ins. Co., 85 Vt. 305, 82 Atl. 4; Newton v. American Car Sprinkler Co., 88 Vt. 487, 92 Atl. 831; State v. Gomez, 89 Vt. 490, 96 Atl. 190. [3, 4] During the cross-examination of Cray, he was asked if at one time he was convicted of an assault upon a person named, and he answered that two lawyers got to fighting and he paid the bill. Upon being directed by the court to answer the question, he replied, "I was, in that way." Thereupon the record of the conviction referred to was offered and admitted. To all this Cray excepted. That it was within the discretion of the court to admit the fact of this conviction, though it did not cover a crime involving moral turpitude, is established by McGovern v. Hays, 75 Vt. 104, 53 Atl. 326. It is true, as suggested in that case, that it is usual to show this fact by the party himself on crossexamination. But this does not imply that the record is inadmissble. It may not be necessary to produce it in a case where the conviction is admitted, but it is not error to receive it. [5-7] The record of the conviction, including the sentence of the court, was read to the jury. Cray asked for an exception to the reading of that part of the record which covered the sentence, and the court immediately withdrew the part objected to, and instructed the jury not to consider it for any purpose. An exception was then allowed. It was improper, in any view, to read the sentence to the jury. Indeed, it was improper to read to the jury any part of the record. Currier v. Richardson, 63 Vt. 617, 22 Atl. 625. As shown by that case, proper procedure requires the court to examine such a record and to instruct the jury as to the material facts shown by it. But, as we have seen, the exception only went to the reading of the sentence. So that is as far as our consideration of it will go. In the case referred to, more was read to the jury than was admissible; this was held to be reversible error, because this court could not say that it was (108 A.) harmless. At that time, error was presumed Appeal of Luceba E. George from order of to be prejudicial; now, it is presumed to be probate court allowing the account of the adharmless. As in that case the court could not ministrator of Asa G. Dutton's estate. Heard affirmatively say that the error was harmless, on an agreed statement of facts. Decree of so here we cannot say that it was harmful. probate court affirmed, and appellant exTherefore the exception is not sustained. cepted. Decree affirmed. So we have no occasion to consider the effect of the court's later attempt to withdraw the whole record from the consideration of the jury, and to charge it out of the case. Judgments affirmed. (94 Vt. 76) GEORGE V. DUTTON'S ESTATE. (No. 188.) (Supreme Court of Vermont. Washington. Jan. 7, 1920.) Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. J. Ward Carver, of Barre, and Walter A. WATSON, C. J. [1] The store property, both real and personal, was purchased by Asa G. Dutton and Mary J. Dutton, his wife, and paid for (in language of the agreed 1. TRIAL 368-"ALSO," IN AGREED FACTS, facts) "by funds which were the proceeds of MEANS IN LIKE MANNER. The agreed facts that property was purchaser by husband and wife and paid for "by funds which were the proceeds of real estate owned in entirety by them, and by funds from the sale of personal property also owned by them," mean the same as though the words "in like manner" were used in place of "also." real estate owned in entirety by Asa G. Dutton and Mary J. Dutton, and by funds from the sale of personal property also owned by them." It will be observed that the character of the ownership of the latter funds is not more definitely, nor otherwise, stated. The word "also" is significant in this reacter of the ownership of the real estate spect, relating back, as it does, to the charfrom the sale of which the funds previously mentioned were derived; and it has the meaning of "in like manner." To give it the force of indicating additional additional ownership Marital rights of husband, at common lay, makes the word redundant, for by the words in the personal property acquired by wife dur-"owned by them," immediately following, ing coverture, are not inconsistent with theory We think the that estates by entirety may exist in personalty. this is expressly stated. agreed facts in this respect are to be under3. HUSBAND AND WIFE 14(2)-PERSONALTY stood as meaning the same as though they [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, also.] 2. HUSBAND AND WIFE 14(2)-RIGHTS AT COMMON LAW NOT INCONSISTENT WITH ES TATES BY ENTIRETY IN PERSONALTY. MAY BE HELD BY ENTIRETIES. Estates by entirety may exist in personal property other than personal property growing out of real estate so owned. 4. HUSBAND AND WIFE 14(11)-WIFE'S INTEREST IN ESTATE BY ENTIRETY IN PERSON- read, "and by funds from the sale of personal property in like manner owned by them." See Webster's New International Dictionary. [2] The marital rights of the husband, at common law, in the personal property ac quired by his wife during coverture, are not G. L. § 3524, exempting the wife's sep-inconsistent with the theory that estates by arate personal property from liability for the husband's debts, applies to estates by entirety in personalty. 5. HUSBAND AND WIFE 14(2)—ESTATE BY ENTIRETY CONTINUES NOTWITHSTANDING USE OF FUNDS IN JOINT BUSINESS. That with funds owned and held by husband and wife as tenants by entirety they engaged in business ostensibly as partners did not change the character of the estate; and as between themselves the business was carried on by them as such tenants, and the property purchased for such purpose, and the proceeds of sales were owned and held in the same manner; and on tate by right of survivorship; and none of the property belonged to deceased's estate, or could by right enter into his administrator's account. husband's death the wife took the whole es Exceptions from Washington County Court; Eleazer L. Waterman, Judge. entirety may exist in personalty; for the wife may hold such property by virtue of a gift or bequest to her sole and separate use; or she may so hold it by reason of a surrender and waiver by the husband of his marital rights therein; or, if her property consists of choses in action, the husband may not reduce it to possession within his lifetime. Barron v. Barron, 24 Vt. 375; Albee v. Cole, 39 Vt. 319; Child v. Pearl, 43 Vt. 224; Bent v. Bent, 44 Vt. 555. In addition to the foregoing by Acts of 1884, No. 140, § 2, all personal property and rights of action acquired by a woman before coverture, or during coverture, except by her personal industry or by gift from her husband, shall be held to her sole and separate use, and neither a wife's separate property nor the rents, issues, income, and products of the same shall For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |