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7. Parent and child 3(1)—A father is liable for necessaries furnished to infant whom he allowed deserting wife to keep.

Where a father of two children of tender years permitted their mother, who had deserted him, to retain custody of the children without any attempt to regain such custody, the fault of the mother cannot be imputed to the children, and the father is liable for necessaries furnished to the children.

Appeal from the Supreme Court of the District of Columbia.

Action by Ella Downs and another against George W. Maschauer to recover for necessaries supplied to defendant's wife and children. Judgment for plaintiffs, and defendant appeals. Reversed.

J. H. Bilbrey and P. B. Morehouse, both of Washington, D. C., for appellant.

Walter B. Guy and Frederic B. Warder, both of Washington, D. C., for appellees.

Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

SMYTH, Chief Justice. Appellees, as plaintiffs, brought action against Maschauer to recover from him $4,120 for necessaries supplied to his wife and children between March 10, 1915, and March 10, 1917, and to the children from March 10, 1917, to July 10, 1921. They alleged that the wife and children were in destitute circumstances at the times mentioned, that the goods were supplied at the special instance and request of the mother, that the things furnished were in keeping with the station in life of the mother and children, and that the price charged therefor was reasonable.

Under the rules of the trial court the plaintiffs filed an affidavit of merit, which epitomized the allegations of the declaration. Defendant demurred to the declaration. His demurrer was overruled, and he then filed a plea, in which he denied that he was indebted to the plaintiffs. Immediately afterwards he filed an affidavit of defense, charging, first, that between March 10, 1915, and October 14, 1918, his wife was living separate and apart from him as the result of her misconduct, and on the latter date they were divorced; second, that she wrongfully had custody of the children on March 10, 1915, and so continued in the wrongful custody of the children up to the time of the bringing of this suit; and, third, that at all the times mentioned in the declaration plaintiffs had knowledge of the facts just related, and also that Mrs. Maschauer had no authority, either express or implied, to pledge his credit for anything; that plaintiffs did not furnish his wife or his children anything whatever upon defendant's credit; and that if they actually furnished the supplies as alleged in the declaration, they did so on the credit of the wife and not on that of the defendant. Plaintiffs moved for judgment under the seventy-third rule, on the ground that the affidavit of defense was insufficient. The motion was sustained, and judgment entered for the amount prayed for, with interest.

[1] We think the allegations of the affidavit of defense, that the wife was living apart from her husband as the result of her miscon

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duct and had the wrongful custody of the children, were mere conclusions and did not satisfy the requirement of the seventy-third rule, which says that the defendant must specifically state in precise and distinct terms the grounds of his defense. If he had set up the facts upon which he based his conclusions of misconduct and wrongful custody, the court might have ruled that they were not sufficient to support the conclusions.

[2] The affidavit, however, alleges with sufficient definiteness that the wife and children were living apart from Maschauer, that the goods were furnished upon the wife's credit and not upon that of the hus'band, and that these facts were known to the plaintiffs at the time they supplied the goods. These allegations raised questions of fact which, since they were material to the right of the plaintiffs to recover, as shall appear in a moment, should have been submitted to a jury for its determination.

[3] It seems to be well settled that where the wife deserts the husband, the burden is upon those who seek to recover for necessaries furnished to her to allege and prove either that she lived apart from him by mutual consent, or that the separation was occasioned by the fault or misconduct of the husband. Constable v. Rosener, 82 App. Div. 155, 81 N. Y. Supp. 376, affirmed 178 N. Y. 587, 70 N. E. 1097; Cunningham v. Irwin, 7 Serg. & R. (Pa.) 247, 10 Am. Dec. 458, note 464; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362; Catlin v. Martin, 69 N. Y. 393; Brown v. Mudgett, 40 Vt. 68, 71, 72; Sturtevant v. Starin, 19 Wis. 285. A husband who is able, ready, and willing to support his wife, and who gives her no just cause to abandon him or leave his bed and board, cannot be compelled to support her elsewhere than at his own house, if he has one. His liability for necessaries provided by other persons for her support rests entirely upon the ground of his neglect or default.

[4] Where a person is justified in supplying the wife with necessaries, the credit must be extended to the husband, not to the wife, and the burden of showing that it was extended to him rests upon the party furnishing the necessaries. Harttmann v. Tegart, 12 Kan. 142; Brown v. Mudgett, supra. Direct proof that they were so furnished is not essential. It has been held that billing the necessaries to the wife is not fatal to the claim of those who supplied them. Ott v. Hentall, 70 N. H. 231, 235, 47 Atl. 80, 51 L. R. A. 226. The circumstances under which they were supplied may be sufficient to establish that credit was extended to the husband and not to her. See Dodge v. Knowles, 114 U. S. 430, 435, 5 Sup. Ct. 1197, 29 L. Ed. 144 et seq.

[5] At one time in the remote past it was held that there was no legal obligation resting upon a father to support his children. Hunt v. Thompson, 3 Scam. (Ill.) 179, 36 Am. Dec. 538; Freeman v. Robinson, 38 N. J. Law, 383, 20 Am. Rep. 399. But that view has long since been abandoned. Dunbar v. Dunbar, 190 U. S. 340, 23 Sup. Ct. 757, 47 L. Ed. 1084; Porter v. Powell, 79 Iowa, 151, 44 N. W. 295, 7 L. R. A. 176 and note, 18 Am. St. Rep. 353. The authorities, however, are not agreed as to the principle upon which a father can be held liable. The best reasoned decisions favor the theory that, if he leaves his chil

(289 F.)

dren destitute, he confers on any one who finds them in that condition an agency to give them what they need. 20 R. C. L. 624; Van Vaikenburgh v. Watson, 13 Johns. (N. Y.) 480, 7 Am. Dec. 395; Owen v. White, 5 Port. (Ala.) 435, 30 Am. Dec. 572; Porter v. Powell, supra; Finn v. Adams, 138 Mich. 258, 101 N. W. 533, 4 Ann. Cas. 1186.

[6] This agency arises only where the father refuses or neglects to perform his duty. If a child leaves his parents' house for the purpose of seeking his fortune in the world, or to avoid the discipline and restraint so necessary for the proper regulation of families, a person furnishing him necessaries could not recover from the father, for in such case the law would not imply an agreement to pay on the part of the latter. Shields v. O'Reilly, 68 Conn. 256, 261, 36 Atl. 49; Hyde v. Leisenring, 107 Mich. 490, 493, 65 N. W. 536; Weeks v. Merrow, 40 Me. 151.

[7] When we come to consider the liability of the father where the mother, without just cause, departs from his home and takes with her children of tender years, who are incapable of deciding for themselves what course they should pursue, the question is more difficult of solution. There are many decisions to the effect that in such a case the father cannot be held responsible for necessaries supplied to the children. Shields v. O'Reilly, supra, and Hyde v. Leisenring, supra. We think, however, that it would be a harsh rule to impute to such children the wrongful conduct of the mother. The Supreme Judicial Court of Massachusetts, in an opinion by Mr. Justice Holmes, in Baldwin v. Foster, 138 Mass. 449, approved an instruction to the effect that in such a case, if it appears that the defendant voluntarily and knowingly suffered the children to live apart from him with his wife and made no provision for their support, the jury might infer, in the absence of proof to the contrary, that the defendant made her his agent to contract for necessaries and was liable to third persons who supplied such necessaries in good faith on his credit. To the same effect see Rumney v. Keyes, 7 N. H. 571, 580; Zilley v. Dunwiddie, 98 Wis. 428, 74 N. W. 126, 40 L. R. A. 579, 67 Am. Št. Rep. 820, and McGoon v. Irvin, 1 Pin. (Wis.) 526, 532, 44 Am. Dec. 409.

The children in the case before us were minors of tender years. The youngest was 4; the oldest 11. We do not think the conduct of the mother, if improper, should be charged to them. If the father, knowing that they were destitute, refused to support them, and the plaintiffs supplied them with necessaries on his credit, he is liable.

For the reasons given, the judgment is reversed, with directions to grant a new trial in accordance with the views herein expressed, appellee to pay costs.

Reversed.

GROCK v. UNITED STATES.

(Court of Appeals of District of Columbia. Submitted February 6, 1923. Decided May 7, 1923.)

No. 3897.

1. Criminal law 655 (5)—Counsel for accused has right to treatment not prejudicial to client.

An attorney at law, appearing in open court in the trial of a criminal case, is entitled to such treatment from the court that the interests of his client may not be prejudiced, as a matter not of indulgence, but of right.

2. Criminal law 120(9)—Exclusion of document for improper authentication held not reviewable.

Where a record of defendant's commitment to an asylum in another state was objected to on the ground it was not properly authenticated, and excluded by the court, the ruling cannot be reviewed, if the document was not incorporated in the bill of exceptions.

3. Criminal law 1120(9)-Court's ruling held not finding document was properly authenticated.

Where the admission in evidence of a copy of the commitment of accused to an asylum in another state was objected to on the ground that it was not properly authenticated, a statement by the court in excluding it, that he did not think it was admissible anyhow, was not equivalent to a finding that the paper in fact was properly authenticated, so as to permit review of the ruling, in the absence of the document from the bill of exceptions.

4. Homicide 169 (2)—Evidence that defendant had called at victim's home held competent to show calculation.

In a prosecution for assault to kill, where the defense was insanity, testimony that defendant had called at the home of his victim on the morning in question was competent to show purpose and calculation on his part.

5. Homicide

174(2)—Evidence as to wound is admissible to corroborate tes

timony of assault.

In a prosecution for assault with intent to kill, testimony of a physician, who examined the victim's wound, is competent to corroborate the averment that the victim had been assaulted.

6. Homicide 294(1)-Charge in prosecution for assault to kill, in which defense was insanity, held correct.

In a prosecution for an assault with intent to kill, where the de fense was insanity, a charge, which in substance told the jury not to convict unless they were satisfied beyond a reasonable doubt that he had done the act charged against him in the indictment, and that he knew at the time the nature and quality of the act, and whether it was right or wrong, and that, if they had reasonable doubt about the sanity of the defendant, he should be acquitted, was correct.

7. Criminal law 641 (6)-Hearing new trial motion after withdrawal of one attorney for defendant held not error.

Where defendant was represented by several attorneys, it was not error for the court to hear a motion for new trial and in arrest of judgment, and overrule it, immediately after leave was granted to one of defendant's counsel to withdraw from the case.

8. Criminal law 878 (2)—Indictment and information 129(1)—Joinder of counts for assault with dangerous weapon and assault with intent to kill is not error.

The fact that the indictment contained a count for assault with a dangerous weapon and one for assault with intent to kill does not For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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show error in overruling a motion to quash the indictment on the ground of misjoinder, nor in receiving a general verdict of guilty on the indictment, or sentencing defendant thereunder.

Appeal from the Supreme Court of the District of Columbia. Charles A. Grock was convicted of assault with a deadly weapon and of assault with intent to kill, and he appeals. Affirmed.

John Murphy and Alfred D. Smith, both of Washington, D. C., for appellant.

Peyton Gordon, of Washington, D. C., for the United States.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and MARTIN, Judge of the United States Court of Customs Appeals.

MARTIN, Acting Associate Justice. Appeal from the Supreme Court of the District of Columbia. The appellant, then the defendant, was convicted under an indictment containing two counts. The first count charged him with feloniously assaulting Charles B. Henderson, with a dangerous weapon, to wit, a loaded pistol. The second count charged the same act as an assault with intent to kill. A motion for a new trial was overruled, and the defendant was sentenced. He now appeals to this court upon eighteen assignments of error. His counsel, however, have combined these into five groups for presentation to the court.

[1] The first assignments complain of the conduct of the trial court toward the defendant and his counsel in the presence of the jury, alleging that it tended to bring them into contempt and ridicule, and to prejudice them in the estimation of the jury. We think that these complaints are not without some support in the record. It is an important rule that an attorney at law appearing in open court in the trial of a case is entitled to such treatment from the court that the interests of his client may not be prejudiced. That is not a matter of indulgence, but of right. We will not, however, discuss in detail the incidents which counsel complain of, since we conclude upon an examination of the entire record that they do not justify a reversal herein. This group includes also an assignment relating to the trial court's orders to the defendant's counsel when making his opening statement to the jury. We think, however, that the orders in question were not beyond the discretion of the court.

[2, 3] The next assignments relate to the exclusion of certain testimony offered by the defendant. The ground of defense was insanity, and in support of it a document was offered in evidence, stated by counsel to be a formal commitment of the defendant to an asylum in Nevada in the year 1907. The prosecution objected to its admission upon the ground that it was too remote, also that the document was not properly authenticated in accordance with section 905 of the Revised Statutes (Comp. St. § 1519), and that there was no certificate of the judge certifying to the signature or seal of the clerk of the court. The court sustained the objection, saying, "I don't think it is admissible, anyhow." That ruling is assigned as error. The present record, however, does not enable us to pass upon the exception, since the

289 F.-35