15 Conn. 535 | Conn. | 1843
The original suit was brought by the plaintiff for professional services, rendered by him, for the defendant’s wife. The issue was put to the court, and found for the defendant; and the plaintiff filed a bill of exceptions, and claims, that upon the facts therein stated, the court should have found the issue for the plaintiff.
If this was a subject matter of a writ of error, this court could hardly be called upon to revise a judgment, unless it appeared, that all the facts upon which that judgment was
But if we are to consider that it sufficiently appears, that this was all the evidence in the case before the court below, another objection would arise, — that the party could not, in this way, bring up for revision his whole case, whether tried by a justice of peace, or the county court.
Such a practice would defeat the object of the statute, in which, for the sake of preventing tedious litigation in small causes, an appeal is limited to causes wherein the demand exceeds a certain amount; by which it was intended, that the lower court should have final jurisdiction within that amount. If it be said, that this effect might be prevented, by the refusal of the court to sign a bill of exceptions, in their discretion; we answer, that if this practice is a legal one, then the party must have a right to his bill of exceptions, and the court cannot refuse it. But we think that it is not the proper office of a bill of exceptions to bring up the whole case.
A bill of exceptions ought to be on some point of law, either in admitting or denying evidence, or a challenge of some matter of law upon any fact not denied, in which either party is overruled by the court. It is not intended to draw the whole matter into examination again: it is only for a single point. Bul. N. P. 310. This doctrine has often been recognized in other states. Graham v. Camman, 2 Caines, 168. Van Garden v. Jackson, 5 Johns. R. 468. Frier & al. v. Jackson d. Van Allen, 8 Johns. R. 507. where Chancellor Kent says, that the party excepting must lay his finger on those points which might arise, &c. Jackson v. Cadwell, 1 Cow. 339. Law v. Merrills, 6 Wend. 274. Like decisions have been often had in the state of Illinois. Swafford v. Dovenor, 1 Scam. 165. Gilmore v. Ballard, Id. 252. Doe d. Ballingall v. Spraggins, Id. 330.
More than fifty years since, this question was brought before our superior court and supreme court, with a similar result. McDonald v. Fisher, Kir. 339. Wadsworth v. Sanford, Kir. 456. And those decisions have repeatedly received the more recent sanction of this court. Watson v. Watson, 10 Conn. R. 75. Picket v. Allen, 10 Conn. R. 156. Lyme v. East-Haddam, 14 Conn. R. 394. It is not necessary to multiply
In this case, the parties closed the issue to the court; and this was the general issue ; and the plaintiff in error now claims to review it.
Suppose it had been closed to the jury ; it would not, we think, have been claimed, that a new trial should be granted as for a verdict against law. And if that could not have been expected, we do not see upon what better foundation this case could stand, were the bill of exceptions allowed to be regular.
The question before the court was, whether upon these facts, the husband was chargeable for services rendered to his wife, without his request. The general rule is, that the husband is not liable, without his assent, express or implied. 1 B. & P. 226. note.
This assent, however, may be inferred from circumstances; such as the necessity the wife stood in for them, and the relative situation of the parties, as connected with the treatment of each other. Here, as well as in the case of infancy, the question of necessaries is a relative fact, depending upon the standing and circumstances of the party. Ford v. Fothergill, 1 Esp. Ca. 211.
It would have been a proper question upon all the facts for the jury to decide, had it been submitted to them ; and now it was equally proper for the judge, when the parties chose to put the issue to him. Whether this court would, upon the facts stated, have come to the same result, we do not intimate ; because we say, without hesitation, that if there has been any mistake, this is not the way to correct it.
We, therefore, advise the superior court, that there is no error in the judgment complained of.
Judgment affirmed.
This point is, no doubt, sufficiently settled by authority; but is it always regarded in practice 1 Were not the cases of The City of Bridgeport v. The Housatonuc Rail-Road Company, ante 476., decided almost simultaneously with this, and of Oxford v. Bethany, ante 247. decided the year before, obnoxious to the same objection 1 Incases like these, especially the former, where-the amount demanded in the pending suit is below the original or appellate