the declaration will be held bad on general |tion, and elegant in expression. It appears demurrer provided such repugnancy and in- to us, however, that it is inexact in the stateconsistency relate to matters of substance ment that the defendant demurred to the and not of form only." It was also held by declaration. We are unable to find in the this court in the case of State v. Seaboard record any such demurrer, and the opinion Air Line Railway, 56 Fla. 670, 47 South. 986, filed shows that it was the plaintiff's own that: "Where allegations of a declaration demurrer to defendant's pleas which we felt containing only one count are repugnant to constrained to visit on the declaration. As and inconsistent with each other, such al- to the first contention, it is argued in the pelegations neutralize each other, and the dec-tition that: "The question is not whether in laration will be held bad on demurrer. A this instrument 'and' means 'and' or 'or, or like result must necessarily follow if the al- whether it is conjunctive or disjunctive, but legations or statements contained in a cause what is the meaning and effect which would of action, which is made a part of the dec- be given it as a conjunctive conjunction?" laration by apt words, are repugnant to and This contention seems to us to be irreconcilinconsistent with the allegations in the dec-able with that of the brief of the defendant laration." in error which was before us when the opinion was filed. The argument of the brief is: "If the view be taken that the words of the Capital Publishing Company and himself personally' are excludingly descriptive of the kind of obligations, then we say that the construction of those words should be such as to substitute 'or' for the word ‘and,' so that it could read 'of the Capital Publishing Company or himself personally.' It frequently happens that the word 'and' means 'or,' and will be so construed by the court in order to carry out the intention of the parties.” So we see that we are invited by the brief of the defendant in error to construe the word "and" as meaning "or," and in the pe In the instant case, as before stated, in each and every count the written agreement of the Capital City Bank is made a part thereof. Giving to the word "and" used in said agreement between "Capital Publishing Company" and "himself," its usual meaning as a copulative conjunction, the agreement means that the Capital City Bank indemnified and released I. B. Hilson from certain obligations of the said company and himself which were the obligations of both. There is nothing in the context of the agreement which justifies any other meaning, and no circumstances connected with the making of the agreement are stated in the declaration which would justify any other meaning.tition we are assured that is not the question Each count of the declaration is based on defendant's failure to pay or release the several obligations of the publishing company and Hilson. Each count, therefore, contains allegations which are repugnant to and inconsistent with each other, for, if the defendant agreed to release and pay obligations which the publishing company owed and which Hilson also owed, it is not liable for their several obligations. We are constrained, therefore, to conclude that the declaration states no cause of action against the defendant, and that a judgment based thereon is erroneous. Judgment reversed. at all. It was because of this contention in the brief that we entered into an examination of the meaning of the word "and" as afforded in the decisions referred to in the opinion. Considering, then, the word "and" as a copulative conjunction, the question is: What meaning is to be given to it in the agreement sued on? Does it, in connection with all the words of the sentence in which it is used, import as between Hilson and the Capital Publishing Company joint obligations, joint and several obligations, or several obligations? Prima facie, in the absence of statute the liability of two or more persons on the same contract is a joint liability. All concur, except TAYLOR, J., absent 2 Page on Contracts, par. 1132. As to the on account of illness. On Rehearing. classical use of the word "and," every one knows that it is constantly used to group under one general concept things which in themselves are several and distinct. The instances of such use are too numerous to need citation. Every one also knows that the word is used to couple together words and phrases used as jointly describing or qualifying in the adjective sense some other word or phrase. In the instant case the subject of the contract is "obligation." The matter predicated of them is that they are the obligations of "the Capital Publishing Company and himself (Hilson) personally." It is therefore predicated of them, at least prima facie, that they are each the obligations of these two parties. It is also contended that the sen The petition as a literary criticism is inter-tence in the agreement in which the word HOCKER, J. A petition for rehearing has been filed in this case setting up that there is error in the original opinion in several particulars: First, that the court erred in confining itself to deciding that the word "and" used in the contract is "conjunctive," and not "disjunctive." "That is, that prima facie it means 'and' not 'or.'" Second, that the declaration alleges the $6,500 obligation is an obligation of the Capital Publishing Company and Hilson severally, and that the demurrer to the declaration admitted the declaration to be true, and thus admitted this several obligation. the word "obligations" being understood to follow the word "and" in the quoted sentence of the contract, thus showing a several obligation. as is in daily use to indicate a several ob- | will and does indemnify and release Mr. I. ligation, that the expanded form would be B. Hilson from the obligations of the Capital "the obligations of the Capital Publishing Publishing Company and the obligations of Company, and the obligations of himself per- himself personally as set forth in the list of sonally," and this expanded form clearly obligations that follows; that the sentence shows a several obligation. To us this ex-under construction may be a syncopated one, pansion of the sentence does not clear up the ambiguity. For of what use in this sentence is the adverb "personally." Adverbs only qualify verbs, adjectives, or other adverbs. They do not qualify nouns. To make this ad- I can see, too, how the contract is subject verb of any use in this sentence, the sentence to the construction put upon it in the opinion will have to be further expanded by supply-prepared by Mr. Justice HOCKER. This being some word which might be suggested by ing so, the sentence is capable of two conthe context. It seems to us that if the sen- structions, and must, under the rules of law, tence is to be expanded it should read as fol- be construed most strongly against the one lows, the words we supply being in brackets: claiming under the contract. "The following obligations of the Capital Publishing Company and himself [for which he is] personally [liable]"-for his personal liability was evidently in Mr. Hilson's mind when the contract was made, as shown by the fact that it was made for his benefit alone. Thus expanded, it seems to us, that it imports a joint obligation. If we examine the contract, we see that, while the names of the persons and firms to whom the alleged obligations are due are given, the amounts seem to be stated as "about" such and such figures. The exact amount of the debts is not stated. Therefore, taken together with what precedes them, it is hardly legitimate to argue that the several amounts of these obligations and the names of the parties to whom they are said to be due are conclusively descriptive of the obligations against which the plaintiff in error gave the indemnity contract. Again, the agreement reads: "We hereby indemnify and release I. B. Hilson from the following obligations of the Capital Publishing Company and himself personally." As it is Mr. Hilson alone who is protected by the indemnity, and not the Capital Publishing Company, it would seem natural that the contract was worded as it is, in order that he might be protected against obligations of the Capital Publishing Company for which he was jointly liable with that company; for, in the case as stated in the declaration, we can discover no reason why he should be protected against the several obligations of the company, for which he was not liable. If the agreement does not embrace the several obligations of the Capital Publishing Company, we do not see why the same agreement should embrace the several obligations of Mr. Hilson. We have given the petition careful consideration, and are unable to see that the facts and arguments presented free the contract sued on from ambiguity. The petition is denied. All concur, except PARKHILL, J., who concurs in a separate It may be, from a reading of this declaration, the whole of the transaction between these parties is not before us. Perhaps, the matter may be so stated as to make it clear that the bank intended to assume the several liability of Hilson independent of any connection of the publishing company. (59 Fla. 529) HUDSON v. HUDSON. (Supreme Court of Florida. Feb. 2, 1910. Headnotes Filed April 15, 1910.) (Syllabus by the Court.) 1. DIVORCE ($ 37*) · GROUNDS-DESERTION In a suit for divorce upon the ground of willful, obstinate, and continued desertion for the married parties leaves the marital home, the the statutory period. it is immaterial which of one who intends bringing the cohabitation to an end commits the desertion. The party who drives the other away is the "deserter," and a wife may drive her husband away. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 107-132; Dec. Dig. § 37.* For other definitions, see Words and Phrases, vol. 3, p. 2020.] 2. DIVORCE (§ 37*)-DESERTION-"WILLFUL”— "OBSTINATE." divorce, "willful," "obstinate," and continued deThe meaning of the statutory ground for sertion for more than one year, considered and discussed. [Ed. Note. For other cases, see Divorce, Cent. Dig. $$ 107-132; Dec. Dig. § 37.* For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481, 7835, 7836; vol. 6, p. 4890.] In Banc. Appeal from Circuit Court, Santa Rosa County; J. E. Wolfe, Judge. Bill by Moses D. Hudson against Frances PARKHILL, J. The appellant filed his bill of complaint praying for a decree dissolving the bonds of matrimony then existing between him and his wife, the appellee, upon two grounds: Willful, obstinate, and PARKHILL, J. (concurring). I can read-continued desertion for more than one year: ily see how this contract means that the bank and for extreme cruelty. opinion. A decree pro confesso was duly entered | and lived there." The parties have not lived against the defendant for her failure to together since that time, a period much lonplead, answer, or demur to the bill of com- ger than the one year prescribed by the statplaint on the rule day succeeding that to ute. which process of subpoena was returnable. The cause was referred to Hon. C. H. Laney, as special master, who made a report of the testimony with recommendation that the relief prayed be granted. Upon consideration of same, the chancellor dismissed the bill and complainant appealed. We think the testimony sustains the ground of a willful, obstinate, and continued desertion for more than one year. First, as to desertion. Mr. Bishop, in the second volume of his work on Marriage and Divorce, p. 597, says: "It is immaterial which of the married parties leave the marital home, the one who intends bringing the cohabitation to an end commits the desertion. Thus, to drive away the wife from the house is to desert her." The party who drives the other away is the deserter, and a wife may drive her husband away. 5 Am. & Eng. Ency. Law, 803. See Gray v. Gray, 15 Ala. 779, 784; Skean v. Skean, 33 N. J. Eq. 148. The testimony shows that the defendant was the one who intended to bring the cohabitation to an end. After years of cursing and abusing her husband, endeavoring to take even his life, and with violent language and epithet most opprobrious she drove this patient, nonoffending man from the marital home. There is no doubt about the meaning of her declaration: "Moses Hudson, you God damn son of a bitch, you can't call me 'wife' any more, and I will never live with you another day." The wife was the deserter. Was the desertion willful? Willful means on purpose-intentional. As we have seen, the defendant intentionally and on purpose and willfully brought the cohabitation to an end. Crawford v. Crawford, 17 Fla. 180. There is no conflict in the testimony. The facts are not denied or disputed. It appears that ever since these parties were married the complaining husband was without fault, but, during the last few years of their married life, the defendant was very quarrelsome, and would fuss and curse the complainant almost every day. Upon one occasion the defendant tried to induce one Jane Thompson, daughter by a former husband, to put poison in the bread intended for the complainant to eat. Jane refused to do so, and told Moses Hudson about it. Upon another occasion the defendant tried to hire a man to kill the complainant, and again about three months before the final separation of the parties, the defendant tried to get one C. C. Thompson to go hunting with complainant and shoot him, pretending that the gun was discharged accidentally. Finally, one morning in May, 1905, the defendant "flew into a violent rage" at the complainant about a matter for which he was not to blame, publicly cursing and abusing him, much to his embarrassment, continuing this conduct all the morning until he left home to avoid her. Hoping that she would be friendly, Hudson returned to his home in the afternoon of that day, but Mrs. Hudson was just as bad as when he left her in the morning, cursing and abusing him shamefully. The complainant testified: "She ordered me out of the house and told me to leave and never come back, that she never intended to live with me again, and that she did not want to have anything to do with me. I argued the ques-reconciliation or a restoration of the marital tion with her and tried to show her where she was mistaken, but she would not hear me. She ordered me out again, and again told me never to come back and that she would never live with me again. There being nothing else for me to do I left. I went down to my boat and lived there the best I could." He was asked, "What was the last thing she said to you?" "Moses Hudson, you God damn son of a bitch, you can't call me 'wife' any more, and I will never live with you another day," was her answer. According to the testimony of one of the witnesses, "She quit him. She called him a God damn son of a bitch. She told him he could never call her 'wife' again. She told him he had to go. He went off in the morning and came back in the evening. She cursed him out again, and told him that she didn't want him Was the desertion obstinate? Obstinate means determined-fixed-persistent. During all the years of the separation, the deserting wife was determined, fixed, and persistent in putting an end to the cohabitation, in her desertion, although her husband lived near by in his boat "the best he could." All that time she made no effort to bring about a relations, which she had terminated. In New Jersey, where the desertion must be, like here, "willful, continued, and obstinate," in Jerolamon v. Jerolamon (N. J. Ch.) 54 Atl. 166, where the husband being in fault was the deserter, the court said: "The question in the case is whether the separation was continued and obstinate on his part for two years after that time. The separation in this case was, as I have stated, legally chargeable to the husband, and under the rule applied in cases of this character it was the duty of the husband to reform his habits, and after such reformation and within the two years seek out his wife, and apply to return, giving her reasonable assurances of the sincerity of his reformation, and of her probable safety in resuming marital relations." In McVickar v. McVickar, 46 N. J. court said: "If, however, the husband's cruelty was not of such intensity as to amount to desertion, still it was such as to justify the wife in temporarily separating herself from him, and it was his duty to seek a return. This he did not do, but for many years remained entirely passive, manifesting no interest in her welfare or desire to resume marital relations. This, under the circumstances, constituted desertion, and entitles the wife to a decree." invite him to return and resume a career of brutality, drunkenness, or other misconduct which has made her life miserable. It is the duty of the husband to repent and signify his repentance to his wife." In Trall v. Trall, 32 N. J. Eq. 231, this rule is correctly stated: "Even if a wife deserts without cause, and afterwards realizes that she has acted hastily or foolishly, and would return if the way was opened for her, but the husband refrains from doing anything to induce her to return, for the purpose of making her absence a ground for divorce, her desertion is not obstinate, and not, therefore, a ground for divorce. In such a case she remains away, not of her own will, but because she cannot get back without danger of being repulsed or subjected to the pain of humiliation that no husband has the right to inflict upon his wife." As peculiarly applicable to the instant case, the court went on to say: "But a careful study of the temper and disposition of this woman, as portrayed in the evidence, has satisfied me that any effort on the part of her husband to induce her to return would most probably have resulted in strengthening her determination to remain away." And the court held that a husband is not bound to attempt to induce his wife to return, when it is clear any effort in that direction would be unavailing. Continuing, the court said: "The case is a very sad one. The parties are both well advanced in years. Their married life covers a period of more than 30 years. The ties that once bound them together were strengthened by the birth of a child, who is now a man. I think most husbands and wives would regard death as a much more preferable termination of 30 years of married life than a divorce. But the question presented for judgment is one of blended law and fact, and not of sentiment or feeling, and must be decided by the law and facts." The appellate court, in this case, sustained the decree of the court below granting the husband a divorce. And so, as decided in Lammertz v. Lammertz, 59 N. J. Eq. 649, 45 Atl. 271, "Where the wife absented herself from her husband's home for more than two years, and such absence is not justified by her husband's conduct towards her, and the wife's conduct is such that little hope was left of a permanent reconciliation, it We are not unmindful that the marital relation is recognized, both legally and morally, as imposing obligations pre-eminently on the husband. As the husband generally does the courting before marriage he may well continue it afterwards. As pointed out in Sargent v. Sargent, 36 N. J. Eq. 644, society, so far at least, has regarded his duty in maintaining and preserving those relations as of the superior order. "Not that the tie is more sacred or less binding on the part of the wife, but where the act of desertion occurs without reason on his part and without fault on her side, the same efforts to restore harmonious relations are not expected from her as would be from him, if the case were reversed." The principle that the integrity of the matrimonial tie requires this of the husband is stated by the chancellor in Schanck v. Schanck, 33 N. J. Eq. 363. That was a case where a wife in anger told her husband that he "might go his way, and she would go hers," and gave other evidence of her desire that they should live separate, but immediately retracted and besought him not to go, and he, notwithstanding her entreaties, left her, in a passion, and, without any attempt at reconciliation, and without contributing anything towards her support or even communicating with her in any way, remained away from her for three years, living all the time in the same county with her; and the court held that she was entitled to a divorce for desertion. "Under the circumstances of the case," said the court, "the husband owed a duty to his wife a duty to society-to avoid, as he well might have done, the consequences which his punctilious resentment (so exacting that he would not even condescend to propose the terms on which it might be appeased), has inflicted upon his wife. * * It is clear that she never intended to desert him. Her letters offered in evidence by him contain the very strong-will be considered that the desertion is obest expressions of affection, and were undoubtedly sincere. Were he before the court asking a divorce from her on the ground of desertion, his application would be denied for the reason that he has been derelict in his duty towards her under the circumstances." And so would we say, in the instant case, upon similar facts. In view of the facts stated in Wilson v. Wilson, 66 N. J. Eq. 237, 57 Atl. 552, the court said: "An injured wife, under such circumstances, is stinate, and divorce will be decreed, though no proof was offered that the husband sought her and urged her return." Recognizing the general rule that the husband, being the head of the household, is bound to do what he may, as a just man, to bring about his wife's return or a restoration of the marital relations even where the original separation was wrongful on her part, yet we think, under the peculiar circumstances of the instant case, the wife's D. B. Cobbs, for appellants. Rickarby & Bonner, for appellees. one that any further effort by the complain- | Railroad Company and another being sumant to induce his wife to return to him moned as garnishees. From the judgment would have been unavailing; and that his rendered, plaintiffs appeal. Affirmed. right to a decree is not dependent upon his having done any more than was done by him in that direction. Indeed, as was said in Trall v. Trall, supra, "any effort on the part of her husband to induce her to return would most probably have resulted in strengthening her determination to remain away." And the evidence justifies us in adding that, perhaps, any further effort on his part to have continued the marriage relation would have caused her to end it by taking his life. Was the desertion continued for one year? Yes, for nearly four years prior to the filing of this bill the wife's desertion continued, as we have seen. From the time the defendant put an end to the cohabitation, she did not live with her husband another day, as she declared would be the case when she drove him away. We think the defendant's desertion was willful, obstinate, and continued by the wife for more than one year, and that under the facts of this case, as we gather them from the record, we are constrained to hold that the complainant is entitled to his decree, and that the chancellor erred in dismissing the bill. The decree is reversed. All concur, except TAYLOR, J., absent on account of illness. (166 Ala. 187) EVANS, J. Appellants obtained a judgment, on the 20th day of October, 1908, at the October term of the law and equity court of Mobile, against Eugene A. Bayley for the sum of $171.33 and costs of suit. On November 4, 1908, the said Eugene A. Bayley was adjudged a bankrupt. On November 14, 1908, appellants made affidavit, and gave bond, as required by the statutes of this state, and obtained a writ of garnishment on said judgment to the Mobile, Jackson & Kansas City Railroad Company, a corporation, and to the New Orleans, Mobile & Chicago Railroad Company, a corporation. On the 9th day of December, 1908, the Mobile, Jackson & Kansas City Railroad Company filed its answer, admitting an indebtedness of $85. On January 11, 1909, the same garnishee filed a supplemental answer, admitting an indebtedness of $170 at the time of making supplemental answer. Of this amount $8.50 was due for wages due the said E. A. Bayley for personal services on the 1st, 20 and 3d days of November, 1908, and the remainder of said amount due was for personal services rendered subsequent to November 3, 1908, and up to and including December 31, 1908, when said E. A. Bayley's employment with garnishee terminated. The said garnishee, in answering, averred that J. B. ELLIS & CO. v. MOBILE, J. & K. C. R. defendant, E. A. Bayley, had notified it that CO. et al. (Supreme Court of Alabama. Nov. 23, 1909. The effect of a stipulation by counsel that the facts set forth in a motion shall be considered as true is not affected by the amendment of such motion on the subsequent motion of one of such counsel. [Ed. Note.-For other cases, see Stipulations, Dec. Dig. § 12.*] 2. BANKRUPTCY (§ 421*) — DISCHARGE - ErFECT ON PRIOR JUDGMENT. A judgment is extinguished by a subsequent discharge in bankruptcy of the judgment defendant. [Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 421.*] 3. BANKRUPTCY (§ 418*) he claimed the wages due him for November 1, 2, and 3, 1908, as being exempt to him under the provisions of section 4165 of the the remainder of money in the hands of garCode of Alabama, and that he claimed that nishee was earned by him as wages for personal services subsequent to his having been adjudged a bankrupt by the honorable District Court of the United States for the Southern District of Alabama. Upon this supplemental answer being filed, the plaintiff filed motion for leave to move to judgment, and for judgment against the garnishee so answering, and set up in said motion the facts as stated in the beginning of this opinion. The attorneys for the plaintiff and for the garnishee filed a written agreement, signed by each, that the matters set up as facts in said motion were true, and that, if the motion was submitted Monday, January 18, 1909, the garnishee, without prejudice to plaintiff for rights, might pay to the said Bayley $50 of the money answered already as exempt to him under the exemption laws Appeal from Law and Equity Court, Mo- of the state. The garnishee then moved the bile County; Saffold Berney, Judge. CHARGE. EFFECT OF DISThe earnings of a debtor subsequent to his discharge in bankruptcy are not subject to a debt contracted prior to such discharge; the debt being extinguished by the discharge. [Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 418.*] Action by J. B. Ellis & Co. against E. A. Bayley; the Mobile, Jackson & Kansas City court for an order discharging said garnishee upon his final answer filed in this cause, and plaintiff objected to this motion, because the |