Irving Browne Isaac Grant Thompson.

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before a justice of the peace on the 10th day of November, 1877, to
recover for the rent due for the month of October, 1877. Both ac-
tions were general assumpsit for use and occupation only, and all
the rfent was due when the first suit was brought. The justice suit
was first tried, in which the plaiutiff filed his bill of particulars for
" one month's rent from October 1st, 1877, to November let, 1877,
$37.50," and recovered judgment for the amount claimed, with
costs, which was paid aud satisfied by the defendant after execution
was issued.

In the present action the plaintiff filed his bill of particulars
** for twenty-four months' rent up to October 1st, 1877, at $37.50
per month," giving credit for the amount received, and showing a
balance of $136.13.

The defendant pleaded the general issue, with notice that the
recovery and satisfaction of the judgment before the justice upon
a part of the same cause of action would be claimed as a bar to this

The City Court decided that it was no bar, and the ruling was
sustained by the Superior Court The question comes before this
court for review on the defendant's motion in error.

The legal proposition that a judgment for a part of one entire
demand is a conclusive bar to any other suit for another part of
the same demand is everywhere inflexibly maintained.

There are some cases of great hardship where this court has ap-
plied the principle, showing how firmly it has been adhered to. In
Town of Marlborough v. Stsson, 31 Conn. 332, the defendants had
removed a pauper from the town of East Haddam to the plaiutiff
town, and left him there, for the purpose of throwing the burden
on the plaintiff. The pauper had no settlement in this State and
the plaintiff had to assume the expense of his support, and after-

Digitized by



Burritt V. Belfy.

luurd brought a suit for damages and expenses up to the time of
trial and recovered judgment The plaintiff then requested the
defendants to remove the pauper, which they refused to do, and
Marlborough afterward brought another suit to recover for the ex-
penses incurred since the former judgment It was held that the
former recovery, though an inadequate one, was a bar to the action.

In Finney v. Barnes, 17 Conn. 420, a suit had been brought in
the name of the judge of probate against an executor after his re-
moval from office, on his probate bond, for neglect to pay over to
his successor money in his hands belonging to the estate, and judg-
ment was recovered for a certain sum. On a scire facias afterWard
brought on tho judgment it appeared that the testator had given by
his will certain legacies payable when the legatees should arrive at
the age of eighteen years. At the time of the former judgment
they had not arrived at that age, but the defendant had in his
hands money belonging to the estate derived from the sale of lands
sufficient to pay these legacies, but on the trial of the first suit no
claim was made or evidence offered relative to these legacies, as
they were not then due and the action had been instituted and was
prosecuted solely for the benefit of those entitled to the residuum.

It was held by a majority of the court that the former judgment
was an absolute bar. Williams, C. J., in his dissenting opinion,
did not attack the principle referred to, but thought the court
onght to lift the veil that concealed the real parties, and that the
claims of these minor legatees ought to be considered as a distinct
cause of action.

From the numerous cases that support the principle contended
for we cite the following : Lane v. Cooky 3 Day, 255 ; Bunnel v.
Pinio,2 Conn. 431; Avery v. Fitch, 4 id. 362 ; Simes v. Zane,
24 Penn. St 242 ; Logan v. Caffrey, 30 id. 196 ; Reformed Dutch
Church of Westfield y. Brown, 54 Barb. 191 ; Hopf v. Myers, 42
id. 270; Secary. Sturgis, 16 N. Y. 548; Goggins v. BulwinJcle, 1
R D. Smith, 434; Bendemagle v. Cocks, 19 Wend. 207; Guernsey
V. Carver, 8 id. 492 ; Stevens v. Lockwood, 13 id. 644 ; Colvin v. Cor-
win, 15 id. 657 ; Warren v. Comings, 6 Cush. 103; Staples v. Good-
rich, 21 Barb. 317 ; Willard v. Sperry, 16 Johns. 121 ; Marble v.
Keyes, 9 Gray, 221; GibbsY. Cruikshanks, L. R, 8 0. P. 454;
Lord Bagot v. Williams, 3 B. & C. 235. While there is no conflict
of authorities relative to the proposition as stated, there is some
disagreement in the cases in applying the principle, owing to the

Digitized by



Bttiritt V. Belfy.

diflicalty of discriminating between demands which in their natnse
ai*e single and entire and those which are several. The cases where
such difficulties usually arise are those where there are running ac-
counts for goods sold, money lent or paid, or labor performed, at
different times ; or where there is only one contract with stipulations
for payments or acts to be done at different times, and more than
one payment has become due when the first suit is brought. The
case at bar belongs to the last mentioned class, and wo are called
upon to determine whether the cause of action was entire or several;
and for this purpose wo will invoke the aid of such general rules
as the best authorities have prescribed.

In Badger v. Titcomb, 15 Pick. 409, a leading case in Mas-
Siicluisetts on this subject, it was held that a contract to do
several things at several times is divisible in its nature, and
that an action will lie for the breach of any one of the stipu-
lations, each of these stipulations being considered a several
contract, though arising out of one and the same agreement. And
the court held that a running account for goods sold and delivered,
money loaned or money had and received at different times, will
not constitute an entire demand, unless thei*e is some agreement to
that effect, or some usage or course of dealing from which such an
agreement may be inferred; and Wilde, J., in giving the opinion,
says that the case of Guernsey v. Carver, 8 Wend. 492, which
holds that a running account for goods sold at different times, if
all are due, is an entire demand incapable of being split np into
separate suits, is not good law.

Afterward Cowen, J., in Bendernagle v. Cocks, 19 Wend. 207,
in a very able opinion attempts to vindicate the decisions of the
courts of New York against the attack of Judge Wilde.

Upon the merits of this conflict it is not necessary for us to pass,
because we think the case at bar may be brought within the savinjg
clause of Judge Wilde's rule, and be made an entire demand by
the effect of the implied agreement upon which the action is

We ought however to remark in passing, that the later decisions
by the courts of New York show some concession to the position
taken in Badger v. Titcomb.

In Secor v. Sturgis, 16 N. Y. 548, the case of Calvin v. Canfftn,
15 Wend. 557, was overruled, which held that the purchase by the
defendant of lottery tickets at two different times and places of two

Digitized by



BurriU V. Belfy.

different agents of the plaintiff constituted one entire demand^ and
the case of Guernsey v. Carver, supra, was somewhat qualified.
Strong, J., in giving the opinion, says: ''The true distinction
between demands or rights of action whicli are single and entire
and those which are seveml and distinct is, that the former imme-
diately arise out of one and the same act or contract, and the latter
out of different acts or contracts. In the case of torts each tres-
pass or conversion or fraud gives » right of action and but a single
one, however numerous the items of wrong or damage may be; in
respect to contracts, express or implied, each contract affords one
and only one cause of action. The case of a contract containing
several stipulations to bo performed at different times is no excep-
tion; although an action may be maintained upon each stipulation
as It is broken, before the time for the performance of the other,
the ground of action in such case is the stipulation, which is in
the nature of a several contract. ♦ * * Usually in the case of
a running account it may bie fairly implied that it is in purauance
of an agreement that an account may be opened or continued,
either for a definite period or at the pleasure of one or both of the
parties. But there must be either an express contract or the cir-
cnmstanges must be such as to raise an implied contract, embrac-
ing all the items, to make them, when they arise at different times,
a single or entire demand or cause of action."

In further illustration of the application of the principle referred
to we will notice two other recent cases decided by the courts of
New York, where the facts were f|uite like those of the case under

In Coggins v. Bultvinkle, 1 E. D. Smith, 434, the defendant by
written contract became security that each of four seaman named
should report on board a certain ship and proceed to sea, and in
default thereof he agreed to refund certain wages advanced by the
plaintiff and pay damages. AH the seamen made default and did
not appear at all on board the ship. The plaintiff first brought an
action of covenant, alleging a breach in the defaul t of one seaman
and recovered. Afterward ho brought three other suits upon the
same agreement, alleging the separate default of each of the others.
The court, Woodruff, J., giving the opinion, held that the agree-
ment was single and entire and could not be split up into fonr snita
for breaches, all of which had occurred at the same time; and the
first judgment was held a bar to all the other suits.

Digitized by



Burritt V. Belfy.

In Ref armed Dutch Church v. Brown, 54 Barb. 191^ the defend-
ant's testator had agreed in writing to pay one hundred dollars
yearly for three years, for the purpose of supporting the preaching
of the gospel at a place named. After all three of the yearly pay-
ments had become due and unpaid suit was commenced for the
hundred dollars due at the end of the first year and judgment re-
covered. Afterward another action was brought for the remaining
sums. It was held that the first judgment was a bar.

In the case at bar it is manifiast that an action might have been
brought for each month's rent as it became due, and so far the cause
of action would have been several. But after all the payments have
become due and the consideration is executed, in determining
whether the cause of action is single and entire or several, regard
should be had to the obligation of the defendant under the contract
at the time the action is brought. If there are several payments
due under one and the same contract, they then become consoli-
dated, as one obligation on the part of the defendant and one de-
mand on the part of the plaintifE. So that if this action was founded
on the express contract, we should hold that all the payments due
should be included in one action. But here the action is not pre-
dicated on the promise to pay monthly and the breaches of that
promise, but simply on the implied contract arising from the use
and occupation, which was one continuous and entire thing. There
is only one promise founded on one consideration, and there is
unum debitum, one debt, which the defendant owes. So that the
demand is clearly single and entire within all the authorities, and
the plaintiff had no right to split it up for the purpose of bringing
several actions, and having done so the first valid judgment on the
merits for a part of the claim became an effectual bar to this action
for the residue .

The result of the plaintiff's attempt to split his cause of action
will be the loss of the principal part of his debt, which is to be re-
gretted . But the law ceases to be law, it ceases to promote jus-
tice, if it is changed for every case. The greatest good to the
greatest number requires a firm adherence to just general prin-
ciples. Should we concede to the plaintiff in this case the right he
claims to maintain these two suits, it would of necessity concede
also his right to split his cause of action into twenty-five parts, one
for each month's occupancy. Such a result would be simply in-
tolerable. The two old maxims of the law on which our decision

Digitized by




Barritt v. Belfy.

rests, ** Nemo debet bis vexan /^ra ectde^n causd^^ and " Interest
reipu^hliccB ut sit finis litium" are embodiments of wisdom and jus-

It TMxny be suggested that in the cases where the principle we
have referred to has been applied the second suit was barred by the
judgctt^ut in the one previously brought, which is reversed in this


*^t is usually to be expected that recovery will be had in the suit
first brought, and would doubtless have been so here if both suits
had. V>een returnable before the same court. But does the reversal
of the natural order alter the pnnciple? We see no reason for it
except that the first suit at the time it is brought is not vexrt ious,
while the second one is. But if the second suit goes into a valid
judgment on its merits, we do not see why it must not merge the
eatire demand, the same as if rendered in the, suit first brought.
J^ do not find any particular discussion of thi? point, but the rule
^ laid down to this effect in the well-considered case of Secor y.
Sturgis^ supra. The court says, ^'The rule is fully established
*'^at au entire claim cannot be divided and made the subject of
several suits; and if several suits be brought for different parts of
sacli a claim the pendency of the first may be pleaded in abatement
^^ the others, and a judgment upon the merits in either will be
available as a bar in the other suits."

Again, as the defendant might have pleaded the pendency of the
^^t Bait in abatement of the second, it is suggested whether his
oiuiasion to do so may not be considered a waiver of his right to
plead the matter in bar.

The rule of law on which we base our decision is in the interest
<>t the debtor and may undoubtedly be waived by him.

It was held in Mills v. Garrison, 3 Keyes, 40, that it might be
^aived by an agreement for that purpose. But in this case there
IS uo ground of waiver at all, unless it is the omission to plead the
"^vvflency of the first suit in abatement We do not see how this
c^n waive any thing except what is involved in the order of plead-
ing; and a neglect to plead in abatement surely waives no legitimate
niatter in bar. Marble v. Keyes, 9 Gray, 221.

There was error in the judgment complained of and it is re-

Judgment reversed,

In this opmion the other judges concurred.

Digitized by



KeDjoD V. Parris.

Kenyon V. Parkis.

(47CX>DD. 5ia)

Marriage — neceMarus — moruty furnished to wffe/or.

Money furnished to a deserted wife for purclias* of necessaries, and bo applied,
may be recovered in tHjuity from the hosband.*


ILL in equity to recover money furnished for necessaries. The
opinion states the case. The defendant had judgment below.

A, D. Smithy for plaintiff in error.
H, Willei/, for defendant in error.

Pardee, J. This is a bill in equity. The petitioner alleges
that on or about the first day of March, 187C, the respondent will-
fully deserted liis wife, she being without fault ; that thereafter ho
neglected and refused to furnish means necessary for her support ;
that she was without means of support and was in need of the
necessaries of life ; that at her request during the time of such
need the wife of the petitioner advanced from her separate estate
from time to time sums of money aggregating $800 to the respond-
ent's wife for the purpose of enabling her to procure the necessa-
ries of life ; and that she expended the money in the purchase for
herself of such necessaries as her husband was legally bound to
furnish. And the petitioner alleges that he brings this bill as trus-
tee for his wife ; and that he is without adequate remedy at law.
Ho prays to be subrogated to the rights of the several persons who
sold these necessaries to tlie respondent's wife ; and that the re-
spondent be ordered to pay naid amount to him as such trustee;
or that relief should be granted in some other manner.

The following cases are precedents for this bill.

In Ifarrift v. Lee, 1 P. Wms. 482, the petitioner had loaned jC30
to the respondent's wife who had left him for cause, to enable her
to pay doctors and for necessaries. The court said: "Admitting
that the wife cannot at law borrow money, though for necessaries, so
as to bind the husband, yet this money being applied to the use of
the wife for her use and for necessaries, the plaintiff that lent thig

• See Turner ▼ GaUher (»J N. C. a57), 85 Am Bep. 574.

Digitized by



JANUARY TERM, 1880. 87

Kenjon v. Farris.

mionejr must in equity stand in the place of the persons who found
and. provided such necessaries for the wife. And therefore, as such
persons could be creditors of the husband, so the plaintiff shall
staaid in their place and be a creditor also; and let the trustees pay
hina Viis money and likewise his costs." And in Marlow v. Pitfield,
IP- Wms. 559, the court said: "If one lends money to an in-
fant t o pny a debt for necessaries and in consequence thereof the
infan t does pay the debt, here although he may not bo liable at law,
he ixxT]ist nevertheless be so in equity."

Iti Dean v. Soutten, L. R, Eq. 151 (1869), the marginal note is
w follows: ''A person who has advanced money to a married woman
deserted by her husband for the purpose of, and which has been
actiis^lly applied toward her support, is entitled in equity, though
not ^t law, to recover such sums from the husband." In giving
tlie decision Lord Romilly, M. R., said: **I am of opinion that
this is a proper suit and that the plaintiff is entitled to a decree.
"^^^ cases cited on behalf of the defendant have no application,
^^^ May V. Shey^ 16 Sim. 588, is overruled by Jenner v. Morris,

"tenner v. Morris, 3 De .G., F. & J., 45, was a bill to compel the

P^yrnent of money advanced to a deserted wife. In giving the

opinion the Lord Chancellor said: "An action at law could not

'^^ maintained for such a claim. Those who supply the necessaries

^ ^^e deserted wife may sue the husband at law, she being con-

^^^Ted his agent with uncountermandable authority to order the

^necessaries on his credit. But courts at law will not recognize any

privity between the husband and person who has supplied his wife

^ith money to purchase necessaries or pays the trades-people who

iiave furnished them. Nevertheless, it has been laid down from

ancient times that a court of equity will allow the party who has

^^anced the money which is proved to have been actually em-

P'oyed in paying for necessaries furnished to the desertec wife, to

8tand in the shoes of the trades-people who furnished the necessa-

^^> and to have a remedy for the amount against the husband. I

^^ not find any technical reason for this; but it may be possible

that equity considers that the tra^^s-people have for valuable con-

si^oration assigned to the party who advanced the money the legal

debt 'Which would be due to them from the husband on furnishing

tae necessaries, and that although a chose in action cannot be

^^^gned at law, a court of equity recognizes the right of an

Digitized by



KenjoQ T. Farris.

assignee. Whatever may be the reasoa, the doctrine is explicitly
laid down in Harris v. Lee^ 1 P. Wms. 482, and the other cases re-
ferred to. Objection has been made to these authorities that they
are very old, and that they do not appear to have been acted upon
in modem times. But it may be said, on the other hand, that they
have been acted upon without ever having been questioned, and
that they are entitled to more respect from their antiquity. I find
that they are cited and treated as good law by subsequent text
writers on this subject Considering that to establish the equitable
liability of the husband, proof is required that the money has been
actually applied to the payment of the debt for which the husband
would be liable at law, no hardship or inconvenience can arise from
adhering to this doctrine."

In Walker v. Simpson^ 7 W. & S. 83, the coart said: "Although
the husband is to blame for having caused the separation, yet he is
only chargeable at law for necessaries supplied to his wife at her
request, and not with money lent or advanced to her, because money
cannot be considered necessaries, which consists of food, lodging,
and miment. But where the money lent or advanced has been ap-
plied to the payment of necessaries furnished to her, equity will put
the party lending or advancing the money in the place of the party
who supplied the necessaries."

We willingly follow the leading of these authorities, because we
think that the line of separation between necessaries and money
loaned for the purpose of purchasing them may well be obliterated.
So far as the husband is concerned they are practically convertible
terms. His burthen will not be increased if he is made liable for
money; the scope of the word nccessaricc will not thereby be
broadened ; the lender will be compelled to prove an actual expendi-
ture for them ; the law has discharged its duty to the husband in
protecting him from liability for any thing Ijeyond them ; it only
discharges its duty to the wife by making it impossible for him to
escape liability for these irrespective of the method by which he
forces her to obtain them. If he has any preference as to that
method the law will secure it to him ; if he refuses to adopt any,
he is not to be heard to complain if she is permitted to elect,
providing always that she is kept within the small circle of necessity.
It is not certain that credit will, under all circumstances, supply
necessaries to the wife ; at times they may not be had without
money, and accidents of time, place or distance may bring about

Digitized by



State ▼. Hoy t.

8tich a state of things as that a friend may be able and willing to
place money in her hands upon her husband's credit, who cannot
personally attend to its disbursement

Titer e is error in the judgment complaiued of.

In this opinion the other judges concurred ; except Oabpekteb,
^•i who having tried the case in the court below did not sit

State v. Hoyt.

(17 Conn. 518.)

Criminai late — polling jury — restricting argument — aUocuHofu

^e defendant in a criminal case has no right to poll the jury.*
^^ J'estriction of the argument in a murder case to four hours on each side

^^'^ a stenographer is supplied, it is not error to refuse to give time for

; ^^nael to take full notes.

^atencing for murder, it seems, it is not necessary to ask the prisoner if he

^8 any thing to say against sentence. At all events, a motion in arrest of

•'"^tenient, in which the omission is not set up as error, is a waiver of such

''^^*- iSee note, p 97.)

nOJirviCTION of murder. The opinion states the points.

^' -^. Taylor and ff. S. Sanford, for defendant

* -^- Olmsteady State's attorney, contra.

^Mis, J. [Omitting minor points.] The remaining question
. ^^ ^te first head is, whether the accused, at his request, had the
^ ^ have the jury polled.

, ^l^ a right, under the law and practice of this State, has never

Recognized, and there are no considerations of justice, expe-

^y> or security to the prisoner, that require its adoption in*

!^7 of our present practice. Our practice is in effect but obtain-

rS^ ^^ ^ ^^^^ convenient way the opinion of each individual juror.

^ ^tablished form of procedure, as given in 2 Swift's Digest, p

**^**H James v. 8taU (66 Miss. 67), 80 Am. Rep, 49ft, and note, 497.
^^^ y^UU V. People (90 Ul. 117), 32 Am. Bep. 12.)

Vol. XXXVI- 12

Digitized by



State V. Hojt.

439, is &a follows: When the jury announce that they have iigreed
on a verdict, they are distinctly asked, " Who shall speak for you f"
The reply is, " The foreman." The foreman makes answer for the
jury; the clerk is directed to record the verdict; the jury are again
distinctly asked to hearken to their verdict, and it is again repeated,
the clerk adding, ** So say you all."

Under such a practice there can be no propriety in having the
jury polled. But it is claimed as a common-law right It is how-
ever doubtful whether at common law it was considered an abso-

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 13 of 123)