Pierpont v. Wilson.

The judgment of the court below was manifestly erro

neous.

In this opinion the other judges concurred.

CORNELIUS PIERPONT vs. ROBERT WILSON.

A husband who knowingly permits his wife to be without necessary supplies and without money or credit to procure them, authorizes her to procure them from any person who is willing to furnish them on the husband's credit.

And the right of any person to supply her wants on the husband's credit is not affected by notice, general or special, given by him that he should pay for no supplies that were not furnished on his written order. And it is not the duty of the wife in such a case to first seek him and ask for such an order.

ASSUMPSIT for goods sold; brought to the Court of Common Pleas, and tried before Harrison, J. Facts found and judgment rendered for the plaintiff for a less sum than he claimed. Motion in error by plaintiff. The case is fully stated in the opinion.

W. K. Townsend and J. H. Whiting, for the plaintiff.

W. B. Stoddard and E. P. Arvine, for the defendant.

PARDEE, J. In October, 1878, the defendant abandoned his wife; she having neither necessary food nor means. for procuring it, the plaintiff supplied her upon the credit of the defendant until March 28th, 1879; his account is $104.93. In November, 1878, he sent to the defendant a statement of supplies theretofore furnished, amounting to $16.87; the latter then notified him that he should pay neither for past nor future supplies furnished without his written order. From the time of the abandonment the defendant was not asked by his wife to furnish supplies; he furnished none; and notified parties generally with whom he had been trading not to trust her except upon an order

Pierpont v. Wilson.

from himself, but gave her no order for supplies. The plaintiff claimed judgment for the full amount of his account; the Court of Common Pleas allowed him $16.87, and interest; he filed a motion in error.

Marriage imposes upon the husband an obligation to supply his wife with necessary food-an obligation from which he does not obtain release by abandoning her. The defendant by knowingly permitting his wife to be without necessary supplies, and without money or credit of her own wherewith to procure them, authorized her to purchase them from the plaintiff or any other person who, having knowledge of her necessities, should supply them. He could at any time put an end to the right of the plaintiff to supply her upon his credit by himself supplying her. But, while purposely withholding all credit and all supplies, he could not shut her up to want, either by following her and by private notices barring each successive door which might open to her appeal, or by inserting notices in the newspapers warning every person against supplying her. He must supply her if he desires to terminate the power to pledge his credit which his neglect has given her. And, having abandoned her with knowledge that she would presently be without necessary supplies and without money or credit of her own wherewith to obtain them, and having intentionally refrained from supplying her, she was under no obligation to seek him and ask his consent to her purchase from the plaintiff; nor was the latter, knowing her necessities, under any obligation to obtain his permission to supply them. Her necessary food is not to be made dependent upon her ability to find him. After abandonment the obligation remained upon him to take the initiative; to furnish food, known to him to be necessary, without demand; and unless he furnished it, notices, special or general, avail him nothing.

There is error in the judgment complained of; it should be for the full amount of the plaintiff's claim.

In this opinion the other judges concurred.

Potter v. Sanborn.

SUPREME COURT OF ERRORS.

HELD AT HARTFORD, FOR THE COUNTIES OF HARTFORD, LITCHFIELD, WINDHAM, MIDDLESEX AND TOLLAND,

ON THE SECOND TUESDAY OF JANUARY, 1882.

Present,

PARK, C. J., CARPENTER, PARDEE, LOOMIS AND GRAN

GER, JS.

JASON J. POTTER v8. SAMUEL J. SANBORN.

The continuance of suits of foreign attachment where the defendant is not in this state, is governed by Gen. Statutes, p. 419, sec. 19, and not by the 20th section of that statute.

The expression "if the defendant is not in this state," in the 19th section, was intended to apply to a defendant residing out of the state, and not to an inhabitant of the state temporarily absent.

WRIT OF ERROR from the judgment of a justice of the peace; brought to the Superior Court for Windham County, and reserved by that court for the advice of this court. The case is fully stated in the opinion.

T. E. Graves, for the plaintiff in error.

J. J. Penrose and E. M. Warner, for the defendant in

error.

LOOMIS, J. The record upon which the writ of error now under consideration is founded, shows that a suit by process of foreign attachment was brought by Sanborn against Potter, both residents of Coventry in the state of Rhode

Potter v. Sanborn.

Island, returnable before a justice of the peace, in the town of Sterling in this state, on the 25th day of June, 1878. The garnishee, upon whom service was made, resided in this state, but no service was made upon the defendant. On the return day the plaintiff appeared, but no appearance was made in behalf of the defendant or the garnishee. The court found that the defendant had actual notice of the pendency of the suit, and thereupon rendered judgment by default against him, without adjourning the case as provided in General Statutes, p. 419, section 19.

It is evident that the justice assumed that the 20th section of the same statute controlled the case, instead of the 19th section; and the validity of the judgment depends entirely on the question whether the 19th or the 20th section is applicable to the case.

We think the 19th section governs. The language is very explicit as regulating the proceedings "in all suits by foreign attachment," and the section is specially and exclusively devoted to this peculiar action. It not only provides for the proceedings in all courts having regular terms, but also provides that when the action is brought before a justice of the peace, in case the defendant shall not be in this state, and no attorney or garnishee appears to defend, such justice of the peace shall adjourn the cause for not less than three nor more than nine months."

This provision was made a part of the statutes relative to foreign attachment in the year 1797, (see Compilation of 1805, p. 470,) and the identical language has been retained in all the revisions since that time; and until the revision of 1875 it has always been found in immediate connection with the other statutes relating to foreign attachment and under that distinct title. Revision of 1821, p. 240; Compilation of 1838, p. 288; Revision of 1849, p. 116; Compilation of 1854, p. 131; Revision of 1866, p. 67.

For the first time, in the revision of 1875, the provision. in question was separated from other acts of its title and placed where it now appears, in the chapter entitled "Parties and Appearance," but it is still to be construed

Potter v. Sanborn.

just as it would have been if retained under its special. title. It still directs the proceedings in every case of foreign attachment.

The 20th section first appears in the revision of 1821, p. 39, sections 15 and 16, under the title "Actions Civil," under which title it has always been found.

Its language, "every action brought before a justice of the peace," we concede is broad enough to include foreign attachment, but when we find that the statutes provide for the latter as a peculiar action governed by its own special rules, it would seem very unreasonable to subject it also to the still further and inconsistent regulations that apply to actions generally. The 19th section provides that in all suits by foreign attachment, if the defendant does not appear the garnishee may appear and defend him, and the continuance or adjournment provided for depends on the fact whether the garnishee appears and defends or not; but in the 20th section no reference whatever is made to a garnishee or his appearance, and if foreign attachment is also included, as claimed, then if the defendant is not an inhabitant or resident of the state and has no actual notice, it would be the duty of the justice to adjourn the case not less than three nor more than nine months, although the garnishee should actually appear and make defence to the suit.

The defendant attempts to give independent scope and consistency to the two sections under consideration, by construing the phrase "not in this state" as applicable only to inhabitants of this state temporarily absent. But there is no warrant for such a restricted meaning. Inhabitants and residents of another state surely are persons that can be most naturally characterized as "not in this state." It is very strange that a statute should so long exist, making such very particular provision for debtors temporarily absent who would be quite likely to hear of the pendency of the suit, and overlook entirely in the same connection those who were not inhabitants of the state at all and who would probably receive no notice of the suit.