UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty Library REPORTS or CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF ERRORS or THE STATE OF CONNECTICUT; AND IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT: WITH A SUPPLEMENT. BY THOMAS DAY. VOLUME III. by Isaac It,'- 1811 DISTRICT OF CONNECTICUT, as. . . BE IT REMEMBERED, That on the sixteenth day of November, in the thirty -sixth year of the independence of the United States of America, THOMAS DAY, of Jhe said district, hath deposited in this office the title of a book, the right whereof he Claims as author, in the words following, to wit : " Reports of Cases argued and dtermined iu the Supreme Court of tc Errors of the State of Connecticut; and in the Circuit Court of the " United States, for the District of Connecticut : with a Supplement. By THOMAS DAY. VOL. HI." In conformity to the act of the Congress of the United States, enti- tled, " An act for the encouragement of learning, by securing the " copies of maps, charts, and books, to the authors and proprietors of " such copies, during the times therein mentioned." HENRY W, EDWARDS, Clerk of the District of Connecticut. A true copy of Record, examined and sealed by HENRY W. EDWARDS, Clerk of the District of Connecticut TABLE Those cases, the names of which are printed in italics, are re- ported in the notes. Page Abby v. Goodrich, 433 Adams, Sterling v. 411 Anonymous, 308 B Bailey v. Lewis, 450 Barker, Smith v. 280 Beach, Edwards v. 447 Beach, Smith v. 268. 312 Beers v. Botsford, 159 Bennett v. Howard, 219 Benton v. Dutcher, 436 Birrce \. Kdloggj 455 Bird v. Clark, 272 Bissellv. Horton, 281 Bond i>. Kibbe, 500 Bostwick v. Leach, 476 Botsford, Been ti. 159 Bruclley v. Clark, 5O2 Bradley, Kilbournv. 35fi Page Brig James Wells, United States v. 296 Brown, H ilsey v. . 346 Brown v. Hartford Insurance Company 58 Bull v. Bull, 384 Bull, Hoot v. Bull. Seymour v. 388 Burden v. Skinner, 126 Burnham v. Goodwin, 496 Burt, Pease v. 485 Butler v. Butler, 214 Capen, Terry v. 495 Champlin v. Tilley, SoS Chester, Hill house v. 166 Clark, Bird v. 372 Clark, Brad ley v. 502 Clark. Fowler v. 231 Cobb, Howard v. 309 TABLE OF THE CASES REPORTED. Codwise v. Gleason, Cogswell, Talcott v. Collins v. Phelps, Cook, Lane v. Cottle v. Payne, Culver -v. Robinson, D Denison, Michaelson v. Dutcher, Benton v. E Edwards v. Beach, Edwards -v. Nichols, Ellsworth, Pheips v. Page 3. 12 512 506 255 289 68 294 436 447 16 397 258 Fanning v. Willcox, Fosdick -v. Norwich Marine Insurance Company, 108 Fowler v. Clark, 231 Gleason, Godwise v. 3. 12 Goodrich, Abby v. 433 Goodwin, Burnham v. 496 Goodwin, Talcott v. 264 Greenleaf, Stuart v. 311 Hale v. Hale, 877 Halsey v. Brown, 346 Hamilton v. Hempsted, 332 ffanford v. Pennoyer^ 35 Hartford Bank v. Hart, 491 Hartford Insurance Company* Brown v, 58 Hempsted, Hamilton v, 332 Hempstead v. Starr, 340 Hillhouse -v. Chester, 166 Horton, Bissell v. 281 Page Hotchkiss v. Nichols, 138 Howard, Bennett v. 219 Howard z'. Cobb, 309 Howland, Mowatt v. 353 Huntington v. Humnill, 390 Huntington v Sheldon, 497 Huntington v. Todd, 465 Judd, Lynde v. Judson -v. Lake, 318 K Kellogg, Bierce v. 455 Kibbe, Bond v. 500 Kilbourn -v. Bradley, 356 Knapp -v, Lockwood, Knowles v. State, 103 Lake, Judson v. 318 Lane v. Cook, 255 Lawrence, Stoyel i>. 1 Leach, Bostwick v. 476 Lester -v. Stanley, 287 Lewis, Bailey -v. 450 Lewis. Williams -v. 498 Lockwood, Knapp v. . 131 Lynde v. Judd, 499 M M'Call v. M'Call, 402 Mkhaelson v. Denison, 294 Mowatt v. Howland, 353 Munson-y. Munson, 269 N Nichols, Edwards v. 16 Nichols, Hotchkiss v. 138 Nichols v. Ruggles, 145 JVicolls v. Whiting, 287 TABLE OF THE CASES REPORTED. Page Norwich Marine Insurance Company. Fosdiok v. 108 o Oxford v. Woodbridge, 224 Page Stanton v. Willson, 37 Starr. Hempsteud ~u. 34O State, Knowles v. 103 Sterling v. Adams, 411 Stoyel v. Lawrence, 1 Stuyel v. Westcott, 349 Stuart TJ. Greenleaf, 311 Payne, Cottle v. 289 Pease -v. Burt, 485 Peck v. Woodbridge, 30. 508 Pennoyer^ Hanford v. 35 Perkins, Woodbridge v. 364 Phelps, Collins v. 506 Phelps v. Ellsworth, 397 Porter, United States v. 283 President, Directors and Com- pany of Hartford Bank v. Hart, 491 Proprietors of the Upper Locks and Canals on Con- necticut River, Rand v. 441 R Talcott v. Cogswell, 512 Talcott v. Goodwin, 264 Terry v. Capen, 495 Tilley, Chumplin v. 303 Todd, Huntington -v. 455 Townsend v. Wells, 327 Tryon, Wells v. 489 Tudor v. Perkins, 364 Tyler, Rutty v. 470 u United States -v. Porter, 283 United States v. Brig James Wells, 296 Upper Locks and Canals on Connecticut River, Rand v. 441 Rand v. Proprietors of the Upper Locks and Canals w on Connecticut River, 441 Ralhbone v. Riley, 504 Wales v. Wetmore, 252 Rhinelander v. Sanford, 279 Webster v. Woodford, 90. 472 Riley, Rathbone v. 504 Wells, Townsend v. 327 Riley v. Riley, 74 Wells v. Tryon, 489 Robinson, Culver v. 68 Brig James Wells, U.States v. 296 Root -v. Bull, 227 Westcott, Stoyel v. 349 Rowley v. Young, 118 Wetmore, Wales v. 252 Rugglcs, Nichols -u. 145 1 1' hit ing, A? colls v. 287 Rutty -v. Tyler, 470 Willcox, Fanning -v. 258 Williams v. Lewis, 498 S Willson, Stamen v. 37 Sanford, Rhinelandcr v. Seymour v. Bull, Sheldon, Huntington v. Skinner, Burden v. 279 388 497 126 Woodbridge, Oxford v. Woodbridge, Peck v. 30. Woodbridge v. Perkins, Woodford, Webster v. 90. 224 508 364 472 jSmith v. Barker, 280. 312 Y Smith 1-. Beach, 268 Stanley, Lester . 278 Young, Rowley v. 118 CASES ARGUED AND DETERMINED IN THE CIRCUIT COURT OF THE UNITED STATES, DISTRICT OF CONNECTICUT, SEPTEMBER TERM, 1807 PRESENT, THE HON. PIERPONT EDWARDS, ISAAC STOYEL against JOHN LAWRENCE and TIFFANY g t ADAMS. THIS was an action of trespass for false imprison- ^ n execution, ent. VI**, not stilly. ment. aft<;r llie ex - piration ofthe time within able, is of no force, and an On the trial it appeared that one Job Smlfh had ob- arrest under tained a judgment, before the Windham county court, against the plaintiff, and had taken out an execution, da- ted the 13th of May, 1804, returnable according to law.(a) On the 25th of August, 1804, Laivrenc<- was deputed, by the sheriff of \Vindham county, to execute it. On the 31st of July, 1805, Lawrence, with the assistance of Adams, arrested the plaintiff, by virtue of that execution, and kept him in confinement one or two days, when he paid the execution, und was released. The only question, (a) By statute, " all writs of execution shall be made returnable within sixty days, or to the next court, (in case sixty days arc remain. IDK between the date of tin- . \<-< mion and the next court,) at the eler tlon of him that prays it out." 1 Slat. COM. tit. f)3. c. 1 i. 1, the defendants possessed a certain paper MM of th writing, purporting to be a promissory note, payable to inmc them the defendants, by one Eras tun Gay, in the words . Tliis endorsement by Gleason & Cowlca needs no explu- 'Jii. It admits of none. No evidence) as to the intrn- 14 CASES DETERMINED IN THE April, 1808. tion of, the parties, can alter the legal nature of the in- CoDwTsE strument. This note appears to have been sent into the world under the sanction of the names of Gleason & GLEASON. Cowles. So merchants would universally understand it, and so courts will consider it. LIVINGSTON, J. Evidence that Gleason & Cowles en- dorsed the note, and gave it back to Gay, in order to give him credit ; and that they never negotiated it, may have some important bearing on the case. Perhaps the same fraud which procured the note to be given, was used in obtaining the endorsement ; and, if so, it may be properly laid before the jury. The evidence may, therefore, be heard. In the argument of the case, IngeraQll and Griswold, for the defendants, contended, 1. The plaintiffs cannot recover, because the note has been decided by a competent tribunal to be void. The. endorsei lent must of course be void. The endorsement is in the nature of security ; and where notes are not ne- gotiable, it can be viewed in no other light. It is the same thing, then, as if Gleason & Cowles had signed this note with Gay, as his sureties. And it must be acknow- ledged that a surety cannot be holden, when the obliga- tion of his principal is void. 2. From the testimony which has been let in, Lt ap- pears that the plaintiffs are remote endorsees, and the defendants never endorsed the note to them. There is DO privity of contract between the plaintiffs and defendants. To decide that upon these facts the defendants are liable to the plaintiffs, would be giving to an endorsement all the efficacy which it has where notes are negotiable. On this principle, an endorser can alter the nature of an in-- 5 CIRCUIT COURT OF THE UNITED STATES. i strument, and make that negotiable which was not so in April, isos. its creation ; which is absurd. CODWISK V. GLKASON.. Daggete, for the plaintiffs. 1. The contract of the endorser is, in every case, that the sum contained in the note shall be paid when due, and for this payment he pledges himself to be responsi- ble. It makes no difference whether the note is not paid by the. maker because he is unable, or because the instru- ment is void, or on account of any other impediment in the way of collection. Let the cause of failure of pay- ment be what it may, the endorser is liable. If the note is forged, the endorser is still holden ; and in a suit against an endorser it is not necessary to prove the hand-writing of the maker. 2. Nor is the contract made with the next endorsee only. It extends to all future endorsees. An endorsement in blank is a letter of credit to the whole world; and every man who trusts to it, can recover of the endorser. This principal is clearly illustrated and supported by the case of Russel v. Langstaffe, Doug. 514. where Lord MANS- FIELD declared, that the defendant, by endorsing blank copper-plate checks, gave a letter of credit for an indefi- nite sum ; and that it did not lie in his mouth to say the endorsements were not regular. Indeed, this is a direct authority to both points ; for it not only decides the gene- ral liability of endorsers on account of having given their names to thje world, but declares farther, that the endor- ser is holden, though the paper endorsed was, at the time, a mere nullity. LIVINGSTON, J. directed the jury, that as to the first point, though he had had doubts, they were almost en- tirely removed. If a note were forged, the endorsement would bind the man who made it. CASES DKTFRMINED IN THE April, 1808. The second point he declared not to have altered the CoDwTsE decision of the case from what it would have been, if the v> plaintiffs were the only endorsees, and the defendants GLEASON. ' the only persons through whose hands the note had pass- ed. Gleason & Cotvles gave the weight of their names to the world, and must be responsible to every man who trusts to the note relying on their credit, as every sub- sequent endorsee must be supposed to do, from the na- ture of the transaction. The case is, therefore, clearly with the plaintiffs on both points. A verdict was accordingly found for plaintiffs to reco- ver 1,599 dollars and 20 cents damages. Hon. PIERPONT EDWARDS against JOHN NICHOLS. THIS was an action of indebitatus assumfisit. will lie for ar- ticles, or ser- vices, com- j n t h e wr jt t he plaintiff was described as " of the city, manly char- . ged on book, county and district of New- York, a citizen of said dis- tkmforbbcOT trict i" and the defendant as "of Waterbury, in the coun- done, or ser- Lv o f New-Haven, and district of Connecticut, a citizen of vices perform- ed, generally, said district." , is good. If a party is SizeS The The first count of the Declaration alleged, " that on district of N. t he thirtieth day of June last past, at New-Haven, in said York, he is sufficientlyde- district of Connecticut, he the defendant was indebted to scribed as a . ,-,. r citizen of the the plaintiff in the sum or seven hundred dollars, for di- state of New- vers i aDOUrs anc i services before that time done and per York. In assumpsit, formed by the plaintiff, for the defendant, at his, the de, arUcles' and fendant's, special instance and request ; and the defend- Sei on\ CeS ? m .~ ant, at said New-Haven, immediately afterwards, viz. on ged on book, the thirtieth day of June last past, in consideration o the parties cannot be permitted to testify. CIRCUIT COURT OF THE UNITED STATES. 17 being indebted to the plaintiff as, aforesaid, assumed upon April, 1808. himself, and to the plaintiff faithfully promised to pay to him the aforesaid sum of seven hundred dollars, in a rea- sonable time thereafter, when thereto requested by the plaintiff." The second count stated a quantum meruit for seven hundred dollars, for labours done and services performed. The third count claimed five hundred dollars for so much money laid out, disbursed and expended, by the plaintiff, for the use of the defendant, and at the defend- ant's special instance and "request. The fourth count was as follows : " Also for that, at .yew-Haven aforesaid, on the 30th day of June last past, in consideration that the plaintiff had before that time, at the special instance and request of the defendant, done and performed divers labours and services for one Samuei C. Alcox, of Wolcott, in the county of A'cta- Haven, he the defendant, at said Mw-Haven, on or about said 30th day of June, 1805, assumed upon himself, and to the plaintiff faithfully promised to pay him therefor, as much as said services rendered and performed as aforesaid were rea- sonably worth ; and the plaintiff further avers, that said services so rendered and performed were reasonably worth the sum of sixty dollars." The fifth count alleged, that the defendant was indebt- ed to the plaintiff in the sum of fifty dollars, for services before that time rendered to Alcox by the plaintiff, at the special instance and request of the defendant, and that being so indebted he promised, Sec. The sixth count was for fifty dollars in money, laid out by the plaintiff for the use of Alco.r, at the special in stance and request of the defendant. VOL. III. l> 18 CASES DETERMINED IN THE April, 1808. The common averments were inserted at the close. EDWARDS 1 Plea, non assumjisit. .NICHOLS. When this case came on for trial, the counsel for the defendant moved for a continuance of the case until the next term of the court, on account of the sickness of the defendant, who was then in the state of New-York, and unable, as was stated, to attend the trial. LIVINGSTON, J. You must be sensible that the sick- ness of a party, or his inability to attend the trial, is no legal cause for a continuance. Ingersoll and Stajiles, for the defendant, stated, that Mchols was a competent witness in this case ; that they wanted his testimony ; and, on that ground moved for a continuance. They insisted, that though this action is asfsumfisit in form, it still comes witlrin the meaning of our statute, which permits the party to testify in book- debt actions. The words of the statute are, " that in all actions on book debts, that shall be tried by a jury, the jury shall well weigh and consider the credit of the par- ties or any other persons interested," &c.(a) This action is brought for charges made on book, and ordinarily sued for in the form of action described in our statutes as book- debt actions; but whether sued for in this form or not, the same rule of evidence must be adhered to, in order to satisfy the meaning of the statute. They also urged, that the statute of limitations of book debts, had been construed to extend to actions of assumfi- sit. But the words of this statute, " that all such book debts as are now outstanding," fccc. can with no more pro- priety be extended to such actions, than the words of the other statute. (a) 1 Suit. Conn. tit. 25. c. 1. s. 2. CIRCUIT COURT OF THE UNITED STATES. 19 Daggett and Bristol, for the plaintiff. ^ U 1808 The privilege allowed by our statute, that the parties should be permitted to testify in their own case, is mu- NlcHOLS - tual ; and it is confined to the action denominated book debt. The practice adopted in our state courts has never extended the privilege to any other form of action. It was a fundamental principle of common law, that no man should testify in his own case; and the statute which gives the privilege in question, being in derogation of the com- mon law, is not to be extended by construction. This is true in all cases; but ought to be inviolably adhered to, when the principle of common law invaded by a statute, is a rule of evidence so important as the one under con~ sideration. It has been said, that the statute of limitations regard- ing book debts, is applicable to actions of assumfisit, and has been so applied. This is true, where the action of aasumfiait is brought to recover the value of articles or services commonly charged on book. But this depends on the phraseology of the statute of limitations, which de- clares, with certain exceptions, " that all book debts shall not be recoverable after six years. "(a) The limitation, therefore, applies to the subject matter of this action ; and the statute substantially declares, that whatever may be the remedy, or the form of action adopted for the pur- pose, still no book debt shall be recovered after six years. But the statute authorizing courts to receive the testimo- ny of the party himself, gives this privilege only in the particular form of action which we call book debt. LIVINGSTON, J. If A'ichola were present, r,e could not testify in this case under your statute ; there is no reason- j therefore, for the continuance of the case. (a 1 ) I Slut. Cnnn. tit. ' in question was for services performed as an attorney and counsellor at law, and for disbursements in several cases in which he had been thus employed, Ingersoll and Sta- ples urged an objection to the admission of any testimony to support the declaration, for the following reasons: 1. An action of assumfisit will not lie to recover the value of such articles delivered, or such services perform- ed, as are the proper subject of charge on book. The re- medy, in such cases, is by action of book debt, and by that only. This remedy has grown up with the state of Con- necticut, and has had an important influence upon our modes and habits of business. All persons, taking it for an established position, that they can support their charges by their own testimony, have become negligent of pro- curing and preserving other evidence. It must be very pernicious to this community, therefore, that this ancient privilege, and one so much relied upon, should be taken away at the choice of one party, who must be supposed to know his advantages, and that the other party should be obliged to defend himself, deprived of the accustomed mode of substantiating his charges and payments. It is, in short, no less than taking from parties that testimony to which, from long and perhaps universal usage, they think themselves entitled. Besides, in our action of book debt, the defendant has the opportunity of setting off all his charges against those of the plaintiff, and, if they exceed the plaintiff's, of recovering his balance and costs. (a) This is certainly a verjr beneficial provision, both as it prevents litigation and expense, and as it is a security that one party shall not gain an undue advantage over the other. Such a provision ought not to be defeated ; nor are the forms of action by which it is secured, to be rashly invaded. (0) I Slat. Conn. tit. 25. c. 1. s. 3. CIRCUIT COURT OF THE UNITED STATES. 21 2. The declaration is too general. It ought to have April, isos. stated, particularly, the labour done, and services per- ED ^~ DS formed, in order that the defendant may come prepared v. , . , . , . NICHOLS. to repel the claim. Here it is not even hinted in what capacity or character the plaintiff acted, while perform- ing these services, nor is the-nature of the services at all mentioned. Our courts have decided, that indebitatus assumfisit shall not be supported by a general promise to pay the plaintiff all the defendant owed him. The pro- mise must have a particular reference to the -very debt sued for; and must not be capable of an application to other debts. The plaintiff does not offer to prove any promise to pay the particular items; but only a general acknowledgment of the debt. Indeed, if he did offer particular testimony, it could not be gone into on the ge- neral counts. 3. The counts which declare upon the services per- formed for -llcox, and the moneys paid to him, are within the statute of frauds and perjuries, as the promise of the defendant is an engagement to pay the debt of another. It is admitted, that in one of these counts, the allegations are made with sufficient particularity. Duggctt and Bristol, for the plaintiff. 1. On the same principles that the oath of the party has not been allowed in this case, the action of book debt itself, being an anomaly in our law, ought not to be ex- tended by construction; much less ought it to be so coil" strucd as to defeat the remedies afforded by the common law. The statute respci ting book debts has not prohi- bited a resort to the common law remedy in all proper cases ; and consequently all other modes of redress re- main the same as tlsey were before that statute. A sta- tute giving a new remedy, does not lake, away a remedy furni->lu d by the common law, unit :>s it be expressly taken y; but, in all such c statute and common 22 CASES DETERMINED IN THE April, isos. l aw remedies are concurrent. Thus, it was never ima- gined that the statute eivine threefold damages f r cut- EDWAHDS . v . ting trees on another's land (a) had abolished the remedy by trespass at the common law. But the statute regula- ting book debts does not profess to give the form of ac- tion ; it merely regulates the action by allowing the par- ties to testify, and enabling the defendant to recover if the balance is in his favour. It is probable the form of book debt had been adopted in practice long before the statute was made. Nor are we to forget, that this action is in derogation of the common law, and a-direct invasion of the establish- ed rules of evidence. As to the objection, that the defendant is deprived of his oath, it may be answered, that the plaintiff is depri- ved of the same advantage, and it is as likely to be an in- convenience to him as to the other party ; and as he pur- sues a common law remedy, he must establish his claim by common law proof. This objection, in a more specious form, was originally- made to all actions of assumfisit^ where debt on Dimple contract might be brought at the common law. The rea- son then assigned was, that this action took away the defendant's wager of law, and thus bereaved him of the benefit which the law gave him. 4 Co. Refi. 92. Yet the court held, in Slade's case, that assumfisit was a proper remedy, though it deprived the defendant of his wager of law. 2. It was unnecessary to state, with more particularity, the services performed. If the plaintiff is able to shovr that any services, which could come under these allegations) have been performed by him for the defendant, he, on the () 1 Stat, Conn. tit. 165. c. 1. s. I. CIRCUIT COURT OF THE UNITED STATES. 23 other hand, must come prepared to show that these ser- April, 1808. vices have been .paid for, or discharged, or that some ~ good and legal reason exists why they should not be re- v NICHOLS. munerated. If any thing further than this general aver- ment is required, how particular must the plaintiff be ? Must he show the days, hours and minutes, he has been employed ? Or must he state the number of cases in which he was retained? the several terms which inter- vened, the consultations had, or arguments made ? This would swell the record to an insupportable and endless prolixity. Neither precedent, nor authority, can be cited in support of the doctrine advanced. No cases in this state can be cited, where great particularity has been held to be necessary. It is the constant course of practice here, to make general averments as in the present case. In En- gland, and by the supreme court of errors in tins state, actions precisely like this have been held maintainable. It may be well to observe here, since the action of book debt is so zealously advocated by the counsel for the defendant, that no form of action used in our courts of justice is more general than that of book debt ; nor is it possible to conceive of any form more general. It sim- ply demands that the defendant render to the plaintiff such a sum, which he owes by bock. But lest any inconvenience should result to the defend- ant, or he should be taken by surprise, the court may order the plaintiff to furnish him seasonably with oycr of his account, which must be a more accurate specification of his demand than any declaration can be supposed to afford. This has been voluntarily done in the present rase, for more than eighteen months. 3. The counts applicable to the services rendered, and the money paid to Alcox, allege, that they were perform- ed at the special instance and request of the defendant, and we offer to prove that request, and the services pc-i 24 CASES DETERMINED IN THE April, 1808. formed in consequence of it. The undertaking EDWARDS tlien ' is an ori g inal undertaking to pay for those services, and not collateral to any contract or obligation of Alcox. NICHOLS. The counsel for the defendant, in reply, commented upon the words of the statute, " In all actions on book debts," which seemed to imply, that different actions might be brought for articles and services commonly charged on book. Since, however, this action has been decided by the court not to be an " action on book," by the exclusipn of the defendant's oath, no evidence ought to be admitted to substantiate a book-debt claim. To this it was answered, by the counsel for the plain- tiff, that the words " actions on book debts," had been always understood to mean the same as " actions of book debts." LIVINGSTON, J., after requesting to hear the statute read, observed : From the reading of the statute I am con- vinced that this action is well brought ; and that assumfisit and the book-debt action are concurrent remedies. As to the legality of permitting parties to testify in the action of assumfisit^ on the ground that it is an action on book, I have doubts with respect to the correctness of my decision yesterday. I am far from certain that the party ought to be excluded ; and I hope thar no inconve- nience will result to the defendant in this case from that decision. I think the objection, that the declaration is too general, cannot prevail. In the English practice and our own, de- clarations as indefinite as this may be found ; though it is usual to declare for services rendered as an attorney, physician, mechanic, &c. Very little particularity is de- manded in assumflsif, except in the count for money had CIRCUIT COURT OF THE UNITED STATES. 3 and received, where more exactness and precision is April, 1808. required. This is open for discussion, however, in a future stage of the case. NICHOLS. The evidence was admitted, and the jury found a verdict for the plaintiff for the amount of his account. Upon a motion in arrest, IngersolL and Staples took two exceptions, 1. The declaration is too general. The same argu- ments were relied on to support this position that have been stated in the objection to the testimony. 2. It does not appear by the record that the plaintiff is a citizen of the state of New- York, or the defendant a citizen of the state of Connecticut. That this should appear is absolutely necessary; and this court has, without motion, ordered a case to be erased from the docket, on discovering that the parties did not appear to be citizens of different states. Daggctt and Bristol, contra. The first exception comes too late after verdict, when every promise alleged in the declaration is taken to be an express promise, or even a promise in writing, if necessary to sustain the verdict. But an allegation of work and labour generally, with- out setting out what sort of labour, or in what manner it was performed, is good, and agreeable to numerous precedents in the books of forms. Some doubt was formerly entertained on this point, but the question has been long since put at rest. Carthew, 276. 1 Vent. 44. Sid. 425. The best pleaders have latterly adopted VOL. III. F 26 CASES DETERMINED, 8cc. April, 1808. this mode, as the plaintiff would be restricted in his EDWARDS P ro ^ ^ tne declaration were more special. T. NlCHOLJS. 2. The plaintiff and defendant are well described as citizens of the states of New- York and Connecticut. The plaintiff is alleged to be a citizen of the district of New- York, and the defendant a citizen of the district of Con- necticut. By the act of congress to establish the judi- cial courts of the United States, vol. 1. U. S. Laws, 48,, the United States are divided into districts; and the states of New- York and Connecticut are respectively constituted districts of the same name. The same terri- torial limits, as well as the same body politic are, there- fore, described by the terms district of Connecticut, as if the word state had been used. The district and state of Connecticut are synonymous and coextensive, and the parties are described as citizens of the states of New York and Connecticut, by language perfectly definite and certain. * . LIVINGSTON, J. overruled the motion in arrest, and ordered judgment to be entered. CASES / ARGUED AND DETERMINED IN THE SUPREME COURT OF ERRORS, AND BEFORE THE NINE JUDGES OF THE SUPERIOR COURT OF THE STATE OF CONNECTICUT, AT HARTFORD, IN JUNE, 1808. The present organization of the SUPREME COUR T OF ERRORS, and of ffo SUPERIOR COURT of the State of Connecticut, was established, by an act of the Legislature, in May, 1806. [Stat. Conn. tit. XLII. c. 14.] It is summarily as follows: The superior court consists of one chief judge, and eight assistant judges, who annually di- vide themselves into three branches; and the several counties in the state being divided into three circuits, one branch is assigned to each circuit. In all the counties, a circuit court /.v held twice, and in one county, three times a year. This court lias civil, criminal, ami chancery jurisdiction; and, in its several ca- pacities, determines, by the aid of a jury, au- 28 RULES OF PRACTICE. ditors, referees, or commissioners, when neces- sary or proper, all issues in law and in fact. The supreme court of errors consists of all the judges of the superior court ; and holds one term in a year, at Hartford and New -Haven, al- ternately. In technical strictness, this court ^ has cognisance only of writs of error from the superior court; but as all the individuals com- posing the former are judges of the latter, a convenient opportunity is afforded, while they are thus assembled, for hearing argument on motions for new trials, and cases stated. These, of course, occupy a considerable portion of the term. The opinions of the judges upon them are given by way of advice to that branch before which the cases are respectively pending ; but this advice is always followed, and is con- sidered as settling the law. At a meeting of the judges of the superior court, May 26th, 1807, the following RULES OF PRACTICE were agreed to be adopted in the several circuits, viz. 1. The presiding judge, in charging the jury, shall state to them the several points of law which may arise, and declare to them the opi- nion of the court thereon. RULES OF PRACTICE. 29 2. Bills of exceptions shall not hereafter be ad- mitted, but motions for new trials shall be admitted, in all cases, in their room, to be filed within forty-eight hours after verdict, and during the session of the court. 3. The several circuit courts shall hereafter, at their discretion, reserve such motions for new trials, as they think proper, for the opi- nion of the nine judges, either with, or with- out stay of execution. Rules adopted at this term. 1. In all cases of writs of error, the counsel for each party, before argument, shall furnish the court with a brief, containing a statement of the case, with the points and authorities in- tended to be relied on. 2. In all motions for new trials before the nine judges, the counsel for the party who makes the motion shall go forward in the argument. 30 CASES DETERMINED IN THE 1808. SAMUEL PECK against DEODAT WOODBRID&E. A man can- WRIT of error. not collateral- ly impeach, or tion l ud- T h * s was an act i n on the case * r a f raua< > practised judg- ment of a by Peck, in obtaining a decree in chancery against Wood" eourt of law, / or a decree ondge. in equity, to which he is a party- Noae- The declaration stated, that Woodbridge, on the 1st of tion, there- fore, will lie, January , 1773, became vested with the title to a certain P* ece f ^ an d> subject to a right of redemption by and forged eyi- w oah ft U8 ( an( j Elizabeth, the wife of Peck, children, dence, while decree and only heirs of Noah Rust, deceased, by whom the land was originally mortgaged. In 1782, those heirs brought a bill for liberty to redeem the mortgaged premises; whereupon the court decreed, that upon their paying the mortgage debt within a certain limited time, Wood- bridge should give them a quit-claim of his right and title ; and in case of their neglect so to make payment, their equity of redemption should be foreclosed. The money was not paid, and Woodbridge continued in pos- session, and made valuable improvements, and erected buildings on the land. He, and those from whom he derived title, had been in possession from the year 1770. In 1799, Peck, in the right of Elizabeth, his wife, with her and Rust, brought their bill in chancery to the supe- rior court against Woodbridge, praying for liberty to re- deem said land; and stated, as the principal ground of sustaining the application after such a lapse of time, that said Elizabeth was married to Peck during her minority, and ever since had been, and continued to be, his law- ful wife. On a hearing before the court, in September, 1801, this allegation was by them found to be true, and SUPREME COURT OF ERRORS. 31 a redemption decreed. In compliance with this decree, June, 1808. Woodbridge had surrendered the premises. FECK Wooa- The declaration then averred that said allegation was BRIDGE false, and known by Peck to be so; and the finding of the court was made entirely upon mistaken evidence, which Peck had fraudulently imposed upon them. The fraud was stated to have been practised in this manner. Peck had been informed by Mrs. Evans, an aged woman in the neighbourhood, that his wife was born within two or three days of the birth of her daugh- ter Jenny, whose birth-day was recorded, with those of her other children, on a leaf in her bible. This re- cord Peck surreptitiously, and without the knowledge of Mrs. Evans, altered from the llth day of July, 1762, to 1764, and left the bible where he found it. He then produced her as a witness before the court, to testify as to the time of his wife's birth. She unsuspectingly swore, that Mrs. Peck was born the same month, and within a few days of the birth of her daughter Jenny; and that she had recorded that day, with the birth-days of her other children, on a leaf in her bible. She then showed to the court the record which had been altered as stated, as being the true one made by herself; and testified, that from such record she knew that Mrs. Peck was born within two or three days of the llth day of July, 1764. The declaration concluded by alleging special dama- ges, occasioned by the fraudulent practices of Peck. The date of the writ was the 30th of July, 1805. Peck pleaded in bar, that on the 21st of dugnst, 1805, Woodbridge brought a bill in chancery, stating the same facts in substance as those alleged in this action, and praying that the decree passed in September, 1805 ; 32 CASES DETERMINED IN THE June, 1808. might be set aside; which the court, in September, P ECK 1806, accordingly decreed, at the same time enjoining v - Pedk not to make any use of his quit-Cuiim from Wood- WOOD- ' BRIDGE, bridge, and ordering him to pay to Woodbridge his costs in both the chancery suits. There was then a demurrer and joinder. The superior court adjudged the plea sufficient. Brace and E. Perkins, for the plaintiff in error. It is incumbent on the defendant in error to show, that such an action as this can be supported by precedent or firincifile. It will not be pretended that any case is to be found in the books, where a plaintiff has sustained an action at law, on the ground that the defendant had obtained a decree in chancery against him. Nor is there any firin- cijile, or analogy, which countenances such an action. A decree in chancery, while it remains in force, is not only conclusive with respect to the rights of the parties deci- ded by it, but imports in itself conclusive evidence that it was rightly obtained. This position is supported by numerous authorities in the English books, and has been sanctioned by more than one solemn decision in this court. The case of Bush v. Sheldon, \ Day's Cos. 170., compares with this. There evidence was admitted by the superior court to show that the decree of probate was obtained fraudulently. This court unanimously re- versed the judgment, on the ground that the decree could not be impeached collaterally. This principle is founded in sound policy: on a different plan, there would be no end to litigation. Nor can any hardship result from it. If a decree has been obtained against a party wrongfully, let him bring forward his process to set it aside. The mode of redress is pointed out in our SUPREME COURT OF ERRORS. 3 books of practice. It is, indeed, the yery one, which, in June 180S. this case, has been resorted to. (a) PECK V. WOOD- Will it be said, that chancery can furnish but partial BRIDGE. relief? We answer, that in every case where chancery has jurisdiction of the principal subject matter, it can furnish all the relief that the nature of the case requires. The firincifial necessarily brings before the court such things as are incidental. 3 Bl. Comm. 437. Martin v. Martin, \ Ve. 211. Brooks v. Reynolds, \ Bro. C. C. 183. Hardcastle v. Chettcl, 4 Bro. C. C. 163. Beardsly v. Halls, 1 Root, 366. Will it be said, that chancery cannot give damages? Chancery is, appropriately, the forum to consider and decide the question of damages. In an action at law on a bond, the court is to take up the case a* a court of chancery, and settle the damages. In England, indeed* the chancellor does not assess the damages himself, but directs an issue to be tried of quantum damnificatus . Here, the courts assess the damages directly. Sloman v. Walter, 1 Bro. C. C. 418., was cited as an instance where chancery assessed damages. [REEVE, J. There, the court went on the ground of relieving against a penalty.] The defendant in error has obtained all the redress to which he is entitled by his bill in chancery. He sought, in his bill, complete redress; it was competent to chan- cery to grant complete redress ; he cannot be permitted now to say that he has not obtained it. Can he then sustain an action at law (or further redress? But suppose the powers of chancery incompetent, and that an action may be brought to recover damages ; in (a) JUitf. Plead. 84. VOL. III. p 34 CASES DETERMINED IN THE June, 1808. that case, no damages can be given for any thing subse- ^^ quent to the date of the writ. Brasfield v. Lee, 1 Ld. v. Raym. 329. Fetter v. BeaL \ Ld. Raym. 339. 692. Ba- WOOD- ker v. Bache^ 2 Ld. Raym. 1382. In the present case, the court have assessed damages ; but it does not ap- pear, whether for matters before, or after, the action was brought. Further, if an action at law can be maintained, it must be for consequential damages. If so, this action is firemature. No cause of action existed at the com- mencement of this suit; as the bill in chancery had not then been brought. But this action does not proceed on the idea of a de- fect in the power of the court of chancery ; but express- ly on the ground of obtaining a double satisfaction. It is brought as an original action, claiming damages for the whole injury. The principle involved in the present case is very im- portant. To permit two original suits for the same cause to be prosecuted and pending at once, is absurd ; is opposed to the general policy of legal proceedings ; would occasion endless vexation, and needless expense. Goodrich and Daggett) for the defendant in error. This is an action on the case for a deceit in procuring a decree in chancery. It is objected, that that decree may yet be set aside, and the party injured by it re- stored to his rights. But the existence of that decree is not the only injury. The party has been subjected to great expenses in making defence ; in procuring counter testimony ; in employing counsel ; in the derangement of his business, Sec. To set aside the decree merely, would afford but partial redress. Complete redress can be had SUPREME COURT OF ERRORS. 35 only by the action which has been brought ; the nature June, 1S08. of which is, that it may be adapted to the circumstances PECK and exigencies of the case. Bush v. Sheldon was an ac- v - tion of ejectment for the land. But suppose it had been BRIDGE. an action en the case against Isaac Sheldon himself for the/rawrf; could it not have been supported? In Slew- art v. Warner the action went to invalidate the decree. But suppose it had been against Stewart, the master, for fraud in obtaining the decree; would it not have been sustained ? The object of our action is not to affect a title established by the decree; to recover money paid in obedience to the decree; nor to obtain any thing in- consistent with the validity of the decree. Actions founded on the same principle as this have been brought, and sustained. Pheljis v. Grisivold, ber fore the superior court in Hartford county, and Hanford. v. Pennoyer, in Fairfield county,(a) are in point. The bill in chancery which we have brought, is in the nature of an original bill; because it is a bill of right. In order to bring a bill of review, permission to bring such a bill must first be obtained of the chancellor. But this bill, which attacks the decree on the ground of fraud, may be brought like an original bill. On this bill, wo damages are recoverable. All that the court can do is to place the parties in their former situation. The complainant asks only to be restored to all that he has lost by the decree. This kind of bill always supposes a former decree, and has reference to () That was an action for fraudulently obtaining, before a justice if the peace, a judgment against (lie plaintiff, by false and corrupt testimony. In the superior court, a recovery wan sustained, on the ground, that the case admitted of no other redress. The fraud did not appear on the record, so that .1 writ of error could he brought; and our statute docs not authorize a new trial, in a case before a justice. lion. J. TrittnJnit!. Vide 3 Jthnt. J\" J~. W/" N'f>. 160. 36 CASES DETERMINED IN 1HE June, 1808- it. No extraneous matters can be drawn into the bill, It is limited, by its nature, to its applicability to the former decree. WOOD- BRIDGE. BY THE COURT, MITCHELL, Ch. J. REEVE, J. and EDMOND, J. dissenting. It is a principle of the common law, that a man can- not collaterally impeach, or call in question, a judgment of a court of law, or decree in equity, to which he is a party. It can only be done directly, by writ of error, petition for a new trial, or bill in chancery. In this case, the plaintiff complains that the defend- ant obtained a decree in his favour, against the plaintiff, which is still in force, by false and forged evidence. This collaterally impeaches such decree, by not only showing it to be wrongfully obtained, but to be wrong in itself: of course, such action cannot be sustained. Judgment reversed. SUPREME COURT OF ERRORS. 37 1808. EUNICE STANTON against EBENEZER WILL^ON and BEN- JAMIN SMITH, Executors of the last will and testa- ment of JOHN BIRD, deceased. EUNICE STANTON, Administratrix on the estate of JOSHUA STANTON, jun. deceased, against EBENBZER WILLSON and BENJAMIN SMITH, Executors, &c. MOTION for a new trial. Husband mi wife were di- vorced by a These were actions of book debt for education and decree of the support, furnished by the plaintiff, before her intermar- ifmoifywas al- riage with Stanton, and by him afterwards, to the child- 1^ he , r wTiiLji was to ren of Bird. As both the cases depend upon the same be ' n lieu f all claims of principles, and were argued together, it is not necessary dower* and she was con- further to distinguish them. stituted sole guardian of two of their The account produced ut the trial consisted of the infant child- ren; held.tliat following articles : ^e fatllcr wat liable fur cdu- oation and rap- To cash paid Mr. Conklin for his wife's nursing prt of such . c f . , , . . r children, fur- Wilham, an intant son of said John Bird, from June 1st, ,,i s hcd in the 1797, to April 1st, 1798, 43 weeks and three days, at J^i^JJ 1 dollar, . g43 43 '"> ad after- wards by To paid for extra nursing in his sickness, 5 stranger, t To paid the doctor's bill for ditto, 10 CTJ^ To clothing said William 10 months, - 20 \viiereim in- fant child e - U-om his father for fearf personal violence and abuse, and cannot with safety Im- nli him, the father is liable for IH-CCSVU y support ;uiil c.lnc.aioa furnished to suck child by a stranger. \Vhat :irtirl'-s :ire neccssarief, mu,l di pond n|iuu Uu- < imin.st;inees of the pnjly for whom tin \ :u-i- furniihfil ; and v hcu llmsc ciiviiiiist:nii c- :irt- :f-i-i-i-l;iiuc(|, (lie court willinl\ instruct the jury as lo the cUistes of articles whirh .uv to be considered as nccmsaiies. i: k d.-U will lie fur nccfSMtrii > (MI ni.liLMl (>> :-;i infai.r, without* request from the jiarty liiilib-, or :i juomisi tn |i:i\ tur llicin. A wife nwy 1* witness for I,. ,- |,u !, .uxl in nn :-ti'>n 1798 > to September, 1803, 6 1-2 years, - g429 00 To schooling said William 2 1-2 years at 6 dol- lars, - 15 00 To nursing and clothing William and his sister Maria, from June 1st, 1797, to May 15th, 1798, 49 weeks 'and 6 days, - 74 78 To extra nursing and doctor's bill in her last sickness, - - - 20 00 To boarding and clothing said William from October, 1803, to February, 1806, 117 weeks and 1 day, at two dollars 50 cents, 292 87 To two and a half years' schooling said William, 12 00 To boarding John Herman Bird, son of said John Bird, from February, 1805, to February, 1806, 48 weeks and 1 day, - 96 30 .To paid for classic books, and tuition at college for the same, 55 00 To expense money furnished the same, 20 OQ In the course of the trial, it appeared, that the plain- tiff was married to Bird in October, 1789, and continued to be his lawful wife, until May, 1797, when she was di- vorced by a decree of the general assembly. By that decree, she was constituted sole guardian of their youngest children, William and Maria, mentioned in the account, until they should respectively attain to the age of twenty-one years, which guardianship she ac- cepted. Bird was ordered to pay her, within six months from the 1st of June, 1797, three thousand dollars, as her part and portion of his estate, and in lieu of all claims of dower. This sum was afterwards paid to her satisfaction ; and she gave him a written dis- charge from all claims and demands which she had against him, by virtue of the decree. William and Maria lived with, and under the care of the plaintiff; SUPREME COURT OF ERRORS. 3 and their support and education charged in the account j une) isos. were furnished by her, until her intermarriage with STA~NTOK Stanton, in October, 1803, and by him afterwards. Of v. John Herman, the elder son of Bird and the plaintiff, she was not appointed guardian. He continued with his father several years after the divorce, and then, as the plaintiff contended, and introduced some evidence to prove, eloped from him for fear of personal violence, and went to live with Stanton. After this, Stanton fur- nished him with the support, tuition, books and money charged in the account. It was agreed, that the whole of the charges accrued without any request from Bird, and that he had never made any express promise to pay them. The plaintiff offered herself as a witness in support of the charges. She was objected to, as incompetent to testify as to such as accrued after her intermarriage with Stanton, on the ground of her relation to him. this objection was overruled; and she was admitted. On the merits, the defendants contended, that Bird was not liable to pay Stanton for any part of the account for supporting William and Maria, on the ground that Stanton was not their guardian; and that, if there was any liability, it accrued to Stanton and his wife jointly. But the court decided, and gave it in charge to the jury, that the sole guardianship of the mother was no objection to a recovery by Stanton, inasmuch as the debt accrued solely to him. The defendants also contended, that the plaintiff could not recover for any part of the charges relating to John Herman; but the court decided, and gave it in charge to the jury, that if they found that he eloped from his father for fear of personal violence and abuse, and could not with safety live with him, the plaintiff 4Q CASES DETERMINED IN THE June, 180*. was entitled to recover such sum for his support an. 1 1 I 48 CASES DETERMINED IN THE June, isos. We contend, that it will not. We apprehend, that ST INTON th * s action wil1 never lie, where the liability arises by mere operation of law. WILLSON. This is a case of money laid out and expended, by a stranger to John Bird, for the support and education of his children, contrary to his mind and will. No agree- ment, or request, on his part is pretended. If the action of book debt will lie for this kind of implied agreement, no reason can be shown why it will not lie on every possible kind of implied agreement. If it will lie in the present instance, you may charge on book money paid under a mistake) or money paid through the deceit of another, and recover it back in this form of action. So money paid on a consideration which happens to fail; money obtained under a void authority; by extortion, imposition, oppression; or money paid on a note and not applied, might all with equal propriety be charged on book, and recovered back in this action. But it having been so recently settled by this court, in the case of Bradley v. Goodyear, 1 Day's Cas. 104. that money paid on a note, and not applied, could not be charged on book, that it will not now be contended for. We contend further, that if John Bird was liable to support these children, the plaintiff ought to have pre- ferred her petition to a county court, in conformity to the statute law of this state,(ci) or of the state of Vermont, where the support wasfur?iished. The law of nature which applies to this subject, has merely compelled certain relations to support each other, but has not pointed out the mode in which they shall be compelled to do it. Hence we find that in Great Britain, in Connecticut and in Vermont, (where this support was furnished,) the legislature have passed acts declaring (o) Tit. 88. c. 1. SUPREME COURT OF ERRORS. 4 what that law of nature is, and pointing out a mode in June, isos which this law shall be enforced. (G) C T " v. In Connecticut and Vermont the acts are literal copies of each other in this respect ; and the manner in which this obligation is to be performed is thus pointed out. The county court of the county where the relieved per- son dwells, on application by any relation, shall assess what shall be just and reasonable, and the sufficient liable relations shall pay in such manner and proportion as the court shall adjudge; and that whether such relations live in that county or not. This assessment liquidates the account. And it is also highly firofier that it should be done there. The judges, who are to determine on the reasonableness of the account, live in the neighbourhood where it is furnished, and are therefore more competent to judge what is reasonable there than a court in the State of Connecticut or Neio-York. A sum which might be reasonable in one of these states might not be ad- judged so in another, But it has been said, and perhaps will be again, that these statutes do not extend to infants who are sup- ported; but merely extend to persons who have once supported themselves and have become poor; of course can reach none but adults. A few words from Judge Blackatonc's Commentaries will set this point at rest. In the 1st vol. p. 449., he observes, that " no person is bound to provide a maintenance for his issue, unless where the children are impotent, either through infancy, disease or accident." These are comments on the English statute of 43 of Jiliz.i but it will be found, on comparing our statute with () Fitk A'irby, 15 they mean, before the date, exfirettcd or afi/iarent on thc/acr of the policy ? 60 CASES DETERMINED IN THE June, 1808. The word " date" has sometimes been taken to mean B ^~ the act or minute of delivery ;(a) but this is contrary to v - the usual acceptation, in consequence of other words, HARTFORD , INS. Co. showing the intent, ut res magis valeat, quam fiereat. But when the word" date" is not limited, or qualified, by something extrinsic, it always denotes the date express- ed. Thus, when we speak of the date of a letter, a note, or a declaration, we always mean the date therein expressed. So the date is said to be the day, month and year ;() and bearing date is of the same import.(c) "We are not, then, to look to the etymology of the word for its construction ; for from the arbitrary use and fluctuation of language, the popular meaning of words differs much from that of the root from whence they are derived.(rf) Usus estjus, et norma loguendi:(e*) usage decides upon the force of language. Deeds take effect not from their date, but from deli- very^/) Date and delivery are here used, not as syno- nymous, but in opposition to each other. From henceforth means from the making or delivery. Clayton's case.(g} The statute of 27 Hen. VIII. con- cerning enrolments, expressed, that they must be made within six months after the date; if such writing have a date, the six months shall be computed, not from the delivery^ but from the date. (a) Hatter v. Jsh, 3 Lev. 438. Gilb. Law Ev. 2ia 456. (6) 1 Marsh. Ins. 241. (c) Co. Litt. 6. (rf) 1 Pow. on Cont. 373. (e) 1 Bl. Comm. 359. Cowp. 704. (/) Shep. Prec. 69i Cr) 5 Co. 1, SUPREME COURT OF ERRORS. 61 In an anonymous case,(a) Holt, Ch. J. says, a date of a June, 1808. deed is express, or implied; the express date is the very BROWN day, and year, in which the deed was made; and this is v- always intended, when it is said, bearing date; the other INS. Co. is the implied date, which is the delivery. In Goddard's case,(b) it is said, " The date of a deed is not of the substance of a deed ; for if it hath no date, or a false or impossible date, yet the deed is good. For there are but three things of the essence and sub- stance of a deed ; that is to say, writing, in paper or parch- ment; sealing ; and delivering. And when a deed is delivered, it takes effect by the delivery, and not from the date" Here again, Lord Coke distinguishes the date from the delivery. " /. S. makes an obligation dated and delivered the 1st of May: on the 1st of June the obligee made a release bearing date 1st of March, but delivered the 1st of June, releasing all actions, ab origine mundi, until the date of the release. And all the justices were of opinion, that the obligation was not released." Dru- ry's caae.(c) Here, the date is settled to mean the ex- pressed date. In Pugh v. Leeda,(d} Lord Mansfield says, what is the date ? It is a memorandum of the day when the deed was delivered. In Latin, it is datum; and datum tali die, is delivered on such a day. Then in point of law, there is no fraction of a iluy , it is an indivisible point. What is the day of the date. It is the day the deed is delivered. The date, therefore, and the day of the date, must be the tame thing. It it impossible, in common sense, to distinguish the one from the other. Date does not mean the hour or the minute, but the day of delivery, and in law there is nofractict: a day. (a) 3 Salh. 120. () 2 Co 5. (c) Cro. EH*. 14. (rf) Cto/. 1 62 CASES DETERMINED IN THE June, 1808. As to the other point, that from should, in all cases, BROWN be construed to be exclusive, it is contrary to the com- HARTFORD mon * i SJ icat i on of language. And for courts of justice INS. Co. to determine words against the intention of parties, and against the generally received sense and acceptation of the words themselves, is laying a snare to entrap, mankind. The multiplied contradictory determinations upon the words "from the date"" would never have existed, had date been supposed to mean delivery; and the reason why date means the expressed date, is because it is not necessary, in one instance out of a hundred, to distin- guish the moment of delivery, but the day only. .. The construction contended for, by the plaintiff, is the most equitable, as it divides the loss equally among the insurers.(c) It is not to be supposed, that the speaker will hurt himself; and if his words are construed in the sense which is strongest against him, it makes it for his inte- rest to avoid intricate and ambiguous expressions.^) But if the reason on which the stipulation is founded is brought in to aid the construction, we ought to be certain that the true reason is known ; and not be led to adopt vague and uncertain conjectures.(c) If the words are clear, and present nothing absurd, they must have a controlling influence, without reference to the reason or motive inducing the contract.(cf) So the pre- amble to a statute may be called in to exfilain, but can- not control the enacting clause, expressed in clear, and unambiguous terms.(e) What was the reason of this stipulation ? The defend- (o) Marsh. Int. 115. (6) Gilb. Law Ev. 213. 1 Poiv. on Cont. 395. (c) Vattel, 385. ( should leave a portion of time, viz. a day, subject to the inconvenience of a-rule they evidently intended to avoid. The fair inference is, that they altered the rule, not only generally, but universally ; and that their expres- sions, if not explicit, are to receive such construction as will effect the apparent object of the contracting par- ties. We are, therefore, of opinion, that the expression "fifior in date," as used in these policies, is equivalent with prior in time; and that it was, of course, competent lor thf defendants to aver and prove the precise time of execution; and that there is nothing erroneous m the record before us. Judgment affirmed 6b CASES DETERMINED IN THE June, 1808. SAMUEL CULVER against JOHN ROBINSON. WRIT of error. dence under the general is- This was an act i on brought by Robinson against Cul- In such case v er on a promissory note. The plaintiff declared, accord- must give the ing to the usual form in this state, " That the defendant ?tthedefence. in and b y a certain writing or note, under his hand, by him well executed, dated the 22d day of April, 1807, promised the plaintiff to pay to him, for value received, the sum of 56 dollars, in six months from the datfe of said note," making a profert of the note, and negating the performance of the promise therein contained. The defendant pleaded non assumpsit; on which issue was joined. Under this issue, the defendant, on the trial, offer- ed to prove that the note was usurious. This was objected to, on the ground that it should have been pleaded; and the court ruled, that it could not be received. The defendant filed a bill of exceptions, on which the cause was brought before this court. Staples, for the plaintiff in error. On two grounds this evidence ought to have been ad- mitted. 1 . Upon the principles of the common law. 2. Upon the statute of this state regulating pleas and plcadings.(a) (a) Stat. Conn, tit 192. SUPERME COURT OF ERRORS. 69 1. By the principles of the common lawj this evi- June, 1808. clence ought to have been received. CULVBR T. ROBINSON- It is admitted, that in England usury cannot be given in evidence under the plea of non est factum to a bond. The reason assigned is, that it is a specialty; 2 Selwyn's M P. 490, 491, 492. Fortesc. 336. 1 Stra. 498. S. C. Esft. Dig. 223. and that whatever goes to avoid a specialty, not appearing upon the face of it, must be pleaded. Though this is admitted to be the practice in England, it is contended that it is not founded in principle. The plea of non est factum to a bond means, that the man did not, in point of law, as well as in point of fact, execute the bond. It is a settled principle, that coverture may be given in evidence under the plea of non eat factum; and the reason assigned shows that usury ought to be admitted under the same plea, to wit, that the bond is absolutely void, and not voidable. By statute, every bond, the consideration of which is usurious, is not only voidable, but utterly void ; and no subsequent agreement or ratification can set it up. But even in England upon actions upon notes of hand, under the general plea of non assumfisit, usury has always been given in evidence ; Bull. JV. P. 152. Esfi. Dig. 168. and remark the reason, " because the con- tract i absolutely void;" 1 Selwyn's M P. 106. 1 Stra. 498. Fortesc. 336.; and it is every day's practice at Msi Priut. But it will be said, that in England, the consideration of a note of hand may be inquired into, and it is not a specialty; whereas in Connecticut the consideration of a note of hand cannot be inquired into, any more than the consideration of a bond ; our notes of hand being specialties, like bonds in England. 70 CASES DETERMINED IN THE .Tune, 1808. As to the first part of this objection ; it may be re- CULVER marked, that after a note of hand is negotiated in England, v - the consideration cannot be inquired into there any more ROBINSON. 7 than here; and yet usury may be given in evidence un- der the plea of non assum/isii as well to a note that has been negotiated as to one that has not. This proves, that because the consideration of an instrument cannot be inquired into, is no reason why usury may not be given in evidence under the general issue. As it respects the second part of the objection, that a note in Connecticut is a specialty ; this is denied. No adjudication of our courts upon the point, it is believed, can be produced. By the English common law, a bond under seal is Called a specialty. This, to wit, a specialty, is an instru- ment sui generi*) known only to the English common law. By the civil law, no such instrument ever existed. To the law merchant it is an utter stranger; and I doubt much whether the law of Connecticut recognises any such instrument; for a bond here without a seal is of precisely the same validity and of precisely the same character, in every point of view, as a bond with a seal, But it is, by the English common law, the seal, which gives a specialty its peculiar character. It would be curious and useful, though not pertinent to the present argument, to trace through the English common law the history of sealed instruments and specialties. By the English common law, fhe consideration of a specialty is sealed up ; it will support an action fier se. And it is said, so is a note in Connecticut; and hence they are alike. These two instruments indeed, have these characteristics in common ; but it by no means follows that they are alike. The consideration of a bond cannot be inquired into on account of the solem- 1 SUPREME COURT OF ERRORS. 71 nity of the seal ; and for the same reason will of itself j une , 1808. support an action. But the consideration of a note ,-, ~ V-.UI.VER cannot be inquired into, because the maker, under his v. own hand, has acknowledged that he has received the value ; and is estopped to deny it. But a bond does not in form -acknowledge, nor purport to be made for any consideration. A note will support an action fier *c, be- cause it contains, upon a sufficient consideration, an ex- press promise to pay ; and this is the only reason. Every written contract, upon a sufficient consideration expressed upon the face of it, and a promise made in consideration tjhereof, is as much a specialty as any instrument known to our law. The form of actions on notes immemorially establish- ed, and uniformly pursued in Connecticut, shows that a note of hand has never been considered as a specialty, though an instrument equally efficient to all valuable purposes. The common form is a neat draft of a de- claration in assumftxit upon an express written contract. The plea generally made, as the general issue, -is non % nssumfisit; though non est factum is often pleaded. Hence I conclude, that, though a note of hand is, by our law, of equal validity^it is neither in form nor substance, a specialty ; and that under the plea of non assum/isil, usury may be gfven in evidence. But it will be said that our superior court have often decided that usury must be pleaded; and that for many years this has been the uniform practice. It is to correct this very practice that this writ is brought to this supreme court of errors. This objec- tion might have weight in the superior court ; but can have none here. 72 CASES DETERMINED IN THE June, 1808. 2. Whatever may be thought of the common law, the CULV~ER statute relating to fileas and pleadings is conclusive v - upon the point. If the legislature could, by the most ROBINSON. explicit language, bind the courts down to a certain rule relative to what may be given in evidence under the general issue, they have done it. See Stat. Conn. tit. 129. By the 4th sect, of this act, the defendant may, under the general issue, give in evidence his title, or any other matter in his defence, or justification, as the nature of the action may be, excepting only a discharge, &c. Comment will not make this clause clearer. A more direct unambiguous expression the English lan- guage does not afford. But it may be said there has been a long contempo- raneous construction of this statute, that usury cannot be given in evidence under the general issue ; and that corn- munis error facit jus. Contemporaneous construction may serve to explain a doubtful statute, but can never repeal a clear one. This statute is not ambiguous. No man can mistake its meaning. It is clear, explicit, and derides all comment. Daggett and A". Smith, for the defendant in error. 1. Usury cannot be given in evidence under the general issue in an action founded on a specialty. In Great Britain, the decisions on this point have been uniform. The reason is, that when you undertake to avoid sa solemn an instrument as a specialty is, you must state your ground of avoidance specially in your plea, that the court may see what it is, and the adverse party may be prepared to meet it. In an action on a specialty, the general issue brings in question nothing but the execu- tion. The plaintiff comes prepared to prove nothing else. To admit proof of usury under this issue would be an unwarrantable surprise upon him. The plaintiff SUPREME COURT OF ERRORS. 73 has informed the defendant what he claims of him. The June, 1808. defendant ought to apprize the plaintiff of his de- CULVER fence. And the ground of defence ought to be brought v - - to a point. It is the excellence of special pleading that it has this effect. The question then arises, are notes of hand in Con- necticut specialties ? It will be difficult to show why they are not. They are of the same validity; the con- sideration of them can no more be inquired into; and the invariable practice hus been to declare upon them in a similar manner. [TRUMBULL, J. i imagine that the origin of our considering a note as a specialty was an old statute prescribing the form of action, which, con- trary to the English practice, was ufion the note. The general issue was, of course, non eat factum. Since I came to the bar, the practice of pleading non as- tumfisit has been introduced, though I admit, properly enough.] It is true, that run assumfisit has been plead- ed to actions on notes. But it has never been decided, that this was a proper plea. The practice of pleaders cannot alter the law. But if long practice may be urged as evidence of the law, we, on our part, may with great propriety avail ourselves of it, to show that in such an action as this, and under such an issue as is here joined, usury cannot be given in evidence. How long the prac- tice of pleading usury specially has prevailed cannot be ascertained; certain it is, that in 1787 it was considered as settled. [HEKVE, J. It was not the practice originally to plead usury specially, but to give it in evidence un- der the general issue. It was not, however, considered a very good practice. SWIFT, J Tluir was a case at Tollainl, before the whole court, consisting of six judges, in winch it was decided, that usury must he pleaded.] 2. The statute regulating /I/can and pleadings does not apply to this case. That statute authorizes the de- fend, mi to give in evidence such matter only as is per- VOL. III. I. 74 CASES DETERMINED IN THE .Tune, 160$. tinent to the issue. But when the defendant pleads non assurn/isit, or non eat factum, usury is not put in issue ; because he denies that he gave the note. ROBINSON. By the Court, MITCHELL, Ch. J. SWIFT, TKUMBULL and BALDWIN, Judges, dissenting. The statute of this state regulating filean and pleadings must govern the case ; and by that statute, the defendant has liberty to give in evidence, under the general issue, any special matter in his defence, or justification, excepting only " a dis- charge from the plaintiff, or his accord, or some other spe- cial matter, whereby the defendant, by the act of the plain- tiff, is saved or acquitted from the plaintiff's demand."(c) The special matter, which must be pleaded, is such as arises subsequent to the plaintiff's demand, and which saves or acquits the defendant from a right of action which once existed against him ; whereas usury evinces a total want of any ground of action originally, and may therefore be given in evidence under the general issue. The court are aware of inconveniences which may arise from this practice; but the statute is imperative; and by a rule of court, that notice of the defence shall be given,(c) the inconveniences will be prevented. (a) Stat. Conn. lit. 129. s. 4. (6) See the rule alluded to at the end of this term. Lcttcrs of ad- ministration granted under the authority JUSTUS RILEY against ROGER RILEY. MOTION for a new trial. On the trial of this cause in the superior court, it ap- peared that the plaintiff was a creditor of the estate of arail in this. Moses Deming, late of JVeiv- Hartford in the state of New- York, deceased; and that personal property belonging to SUPREME COURT OF ERRORS. 75 that estate had come to the hands of the defendant, and June, 1808 had been disposed of by him. T!ie plaintiff, therefore, " claimed, that the defendant was liable as executor de son v. Rn ")Tt. The defendant resisted this claim on the ground that he was authorized to receive and dispose of the pro- perty in question by Jedediah Sanger, to whom letters of administration had been granted, by the surrogate of Oneida county, in the state of New-York; and offered such letters, duly authenticated, in evidence. The plain- tiff objected to their admission, on the ground that let- lers of administration granted in the state of New- York were of no validity in this state, and that the defendant could derive no authority therefrom to receive and dis- pose of the goods of the deceased. But the court over- ruled the objection, and admitted the evidence offered ; in consequence of which, the issue in the cause was found in favour of the defend On motion of the plaintiff, the court granted a rule to show cause why a new trial should not be had ; and re- served the question for the opinion of the nine judges T. S. Williams, in support of the motion. The single question intended to be reserved in this motion for a new trial is, whether a grunt of administra- tion in the state of New- York will give a right to such administrator to commence a suit in this state, or con- trol the personal property ? For the defendant claims, that he has a right to the effects in his hands, l>y virtue of authority 1mm the administrator in New- York. If,* therefore, such administrator has no authority over tin- goods here, In ,o none, and the- defendant must "or in his own wrong. In l.nifland the king had fui incrlv a right lo all tlif 76 CASES DETERMINED IN THE Jue, 1808. goods of those who died intestate. 9 Co. 38. 2 Bla 494. And now no notice is taken of a grant of administfla- tion in a foreign country. If one dies in France, leaving goods in the diocese of N. in England, the bishop of N. must grant administration. 1 1 Vin. Abr. 73. 76. Palm. 163. And in Tourton v. Flower, 3 P. Wms. 369. the Lord Chancellor says, our courts take no notice of what is done in the spiritual courts beyond sea ; as in case of admi- nistration granted in Paris. 1 1 Vin. 78. 2 Com. Dig. 256. The same principle is recognised in a late case in 8 Ves. jun. 44. And this principle applies not only to grants of administration in countries strictly foreign ; but to grants in Ireland. 11 Vin. 76. Freem. 102. 2 Lev. 86. Nor will grant of administration in England extend to the colonies in America. 2 Atk. 63. This is also ad- mitted in argument in Wright v. Nutt, 1 H. Bl. 146. 154. And this is not the law of England, merely. But the principle has been recognised in almost every state in the union. In Pennsylvania, in the case of Grteme v. Harris, 1 Dal. 456. it was holden, that letters of adminis- tration granted by the archbishop of York had no effect there. So also have been the decisions in North Carolina. 1 Haijia. 354. In New- York it does not appear that the English law has ever been questioned ; but the invariable practice is in pursuance of it. SUPREME COURT OF ERRORS. 77 And it is recognised as the law of Massachusetts in a June, 1808. very recent case of The Selectmen of Boston v. Boylston, Rl EY 2 Mass. Refi. 384. T - RlLEY. Such also have been the decisions in the courts of the United States. \ Crunch, 268. 278. 282. And so far has this principle been extended by the supreme court of the United S ates, that letters of administration granted in what is now the district of Columbia, while it was a part of the state of Maryland, were holden to be invalid, after that territory was placed under the juris- diction of tiie United States. Dixon v. Ramsay, 3 Cranch, 323. f It is objected, that the reason of the rule is local ; und therefore should not be adopted here. But such a rule existing in other states and coun- tries is of itself a reason for our adopting it; otherwise, our citizens would be subjected to the disadvantages of the rule in other states, and the citizens of those states would derive the same benefit in tjiis state as our own citizens. For instance, a man dying in Neto-York leaves goods in that state and in this. The administrator there draws from this state the goods here; and our citizens must go into New-York in pursuit of their claims. But they there find that the whole estate is absorbed by judgments and bond debts. Whereas, had the J\'riu- York creditors been compelled to come into this state, \vlu-rc no such preference exists, our simple contract creditors would have divided the estate equally with them. The state, too, in Uiis way may lose the priority to which it is entitled; as upon this principle, instead <>l retaining the goods of its debtor for a debt due the state, it tamely yields those goods to the jurisdiction of another state, and consents to shurc equally with the creditors of that state, or even to be postponed to them. 78 CASES DETERMINED IN THE June, 1808. Again : Is it reasonable that we should yield t J^LJJY them what they deny to us ? Shall they gain both by v- their own rule, and bv ours ? And shall our citizens lose RlI.EY. by both ? Is it not the duty of a government, as well as of an individual, first to provide for those of its own household ? And shall our citizens be forced to apply to a foreign government, or another state, for that justice which it is in the power of our own government to grant them; especially when that state, or government, in similar circumstances, will not drive its citizens to go to ours for redress ; but makes use of the means in its own hands for that purpose ? Justice to our own citi- zens requires that a principle of reciprocity be esta- blished. Besides, when we know that other states have adopted the English rule, we may fairly infer that they expect a similar rule to be adopted against them ; and there- fore, when they grant administration, they do not expect that such a grant would have a greater effect than they themselves would give to a similar grant ; and that they do not intend to affect the goods out of their jurisdiction. No reason can be given why our courts should give a greater extent to this grant than the court which made it would have done. But it is ob- jected, that the decision of our own courts have been contrary to the English practice. They have decided in one case, that being qualified to act as executor in a foreign country would not qualify them here. Perkins \. Williams, 2 Roof, 462. But it is admitted, that the course of decisions in this state has been, that an administrator or executor deriving his authority from a sister state could exercise that authority in this state. But upon examination, it will be found, that those decisions arose, not from an intention on the part of the courts to alter the law of the country; but from a con 1 SUPREME COURT OF ERRORS. 79 vention entered into by the legislature with some of the June, 1808. other states. In the year 1648, the commissioners of the four United Colonies proposed and recommended to the general courts, that if the last will of any man be duly- proved and certified from any colony, it forthwith be accepted and allowed in the rest of the colonies: and that, if any known planter or settled inhabitant die in- testate, administration be granted by the colony to which the deceased belonged, though he died in another ; and the administration being duly testified to be of force for gathering in the estate in the rest of the colonies. These propositions were, by the general court of this state, adopted, in March, 1648, upon this condition, however " Provided the general courts of the other colonies yield their assent thereto."(a) (a) The act passed by the legislature of Connecticut, then one of the United Colonies, was in these words: '.It a session of the general court in Hartford, t/tis \\th March, 1643. \Vht-reas it was recommended by the commissioners, that for th< .nore free and speedy passage of justice in each jurisdiction to all the con It-derates, if the last will and testament of any person be duly pro\ed, and duly certified from any one of the colonies, it be without delay ac- |iii-i|, ami allowed in the rent of the colonies, unless some just excep- tion In- mail* against such will, or the proving (if it, which exception to I--: forthwith dul\ cntil'.ed hack. t'> the colony w here the said will was . that some just course may be taki-n to gather in and dispose of i he estate withoi.t Ige. And aUo, thai if any know i, , or settled inhabitant' di<- intestate, administration be grant e that colony where the pri- son thai) die and depart this life, and that ^. n l>> that govern to gather and woor . 'iiii ; ' bi '. :tnd mi\ i., KlLEY V. RlLEY. 80 CASES DETERMINED IN THE June, 1808. From this convention, thus early entered into, we may ~ fairly infer, that our ancestors considered the law of v - England upon this subject as binding upon them, until altered by the legislatures. And it is, therefore, by their opinion now in force, except where it has been thus al- tered : that they were careful not to change this law, except as to the citizens of those states that also made this change, and adopted the recommendation of the commissioners : and, consequently, that the principle of reciprocity, for which we contend, was in part establish- ed by the wisdom of our ancestors. And until it is shown that the state of New-York has adopted this con- vention; the very terms upon which the legislature of this* state adopted these propositions prove, that the citizens of that state are not entitled to the benefit of them. In point of practice, it is admitted, that this distinc- tion has not been kept up, by our courts ; but this has happened, it is presumed, from this circumstance, that the practice under this convention having been long gone into, and our courts having become familiarized to the idea of administrators appointed by other states bringing suits in our courts, the law which authorized it was forgotten, and it was considered as a general prin- ciple, that administrators from other states could bring suits in this. That this was the fact is evident from this, that in no case reported upon this subject decided by our courts, is this convention alluded to. When, therefore, it appears, that these decisions of our courts are directly opposed to the letter and spirit delivered according to rules of justice. Which, upon due consideration, was confirmed by this court, in behalf of this colony, and ordered to be attended in all such occasions for the future : provided the general courts oT the other colonies yield the like assent thereunto." See 2 ffaz. Hist. Cntr. 124. 135. SUPREME COURT OF ERRORS. 81 of the act of the legislature, it is presumed that they June, 1808. will not be regarded as precedents in this court. But these decisions, it should be noticed, were as between the administrator and the debtor ; but this case is between the foreign administrator and the creditors of the in- testate. It is said, that one man may constitute an attorney, who may act for him as well in one state as another. This is admitted as to the property of the principal; but in this case, it is contended, that the principal, the administrator, has no interest in the property, which is out of his jurisdiction. It is objected, that the decision contended for by the plaintiff is in violation of the constitution of the United States. It is a sufficient answer to this objection, that the supreme court of the United States, the peculiar guardian of the constitution, did not think such a de- cision as at all impugning that clause of the consti- tution. But it is said, that the assignees of a bankrupt ap- pointed in one country, may maintain an action in any other country. Lord Kaimes y however, says, that statu- tory transfers of property to assignees of a bankrupt, do not carry effects in Scotland, 1 H. Bl. 677. And Chief Justice Kent, whose researches have been as great as those of any mun in this country, says, that assignees of a bankrupt cannot sustain an action in their own name in Great Britain. 2 Johns. 344. It is admitted, indeed, that courts of chancery have, in certain cases, interfered to protect the rights of as- signees of bankrupts. Solomons v. Rossy cited 1 H. Bl. 132. VOL. Ml M 82 CASES DETERMINED IN THE June, 1808. In Cleve v. Mills, cited 1 H. Bl. 680. Lord Mansfield RlLEY says, the statutes of bankrupts do not extend to the co- lonies. RlLEY. But if, as between the assignee and debtor of the bankrupt, the court would permit the assignee to sustain a suit, and would say, that it does not lie in the mouth of the debtor to object ; would they therefore say, that as between creditors of a bankrupt, one of which claimed under the laws of a foreign country, by the title of the assignee, and the other was claiming under the laws of our own country, by virtue of an attachment, that the former must prevail ? Are the court prepared to say, that if an English merchant has goods in this country, and owes debts here, and becomes a bankrupt, that the assignees may recover these goods, though attached by our own citizens; and that our citizens must cross the Atlantic in pursuit of them ? This very case is men- tioned in argument in Hunter \. Potts, 4 Term Refi. 190. and as what could not be expected. The discharge of a bankrupt in Maryland, has been held not to operate upon his English creditors. Smith v. Buchanan, 1 East t 11. The same point was decided in New- York, in the case of Van Raugh \. Van Arsdaln, 3 Guinea, 154., and in this state, in the case of Buell v. Shethar, in Litch- field county, MS. And why the assignment should ope- rate upon creditors who would not be affected by the discharge, seems unaccountable. That the English law is in our favour is admitted. It must also be admitted, that this is considered law in the highest courts of our own country; that it was con- sidered as law by our own legislature, at an early pe- riod of our country; and that this case is not within the SUPREME COURT OF ERRORS. 83 alteration then made. This principle, moreover, accords j une> 180 8. with the general principles of law; and its adoption be- R^LiTy comes necessary for the security of our citizens. The v - RIJ.EY. disavowing or former decisions upon this subject can shake no titles to estates, and destroy no securities for debts. Nor does any reason exist, why the law should not be restored to what it anciently was ; and the princi- ple of reciprocity alluded to in the convention of 1648, be again established. Dunbar and J. Trumbull, contra. Moses Deming, of Connecticut, being indebted to Justus Riley, removes to the state of New-York, and dies. Jedediah Sanger of New- York there obtains letters of ad- ministration on Deming's estate. Roger Riley, the de- fendant in this state, has received of the goods, &c. of Deming under an apparent authority from the adminis- trator. The question arising upon these facts is, whe- ther the administrator did or could convey any such au- thority to the defendant; and whether he is not execu- tor in his own wrong? If the administrator had right to have come into Connecticut and to have possessed himself of this estate, he doubtless might have authori- zed the defendant. To decide the question whether he could do so or not, we must consider whether, in case of refusal to deliver, he could have maintained an action in character of administrator. That the laws of En- gland, and some of the states in the union, do not allow an administrator, deriving his authority from the appoint- ment of a court of foreign jurisdiction, to sue in their courts will be conceded ; but that the law, or the reason of the law, in this state, is so, will be denied. The right of gianting administration is regarded by the English law as merely a matter of favour; and the reason why a foreign administrator cannot sue in En- 84 CASES DETERMINED IN THE Jane, 1808. gland is, not because of any defect or inefficiency in his KlLEY character as such, but because it would affect the rights v - of third persons. The original of administrations, ac- cording to the English law, may be found in 2 Bl. Com. 494., and in Hole's and Reeve's History of the English Lata. The administration of intestate estates was very an- ciently performed by the king in person; or rather, he took to himself all the estate of those who died in this manner. Afterwards, and in favour of the church, as it is said, this privilege was granted by him to the reve- rend prelates; surely, not because the public good required it, out as a privilege, and for their private emolument, without their being even liable for the pay- ment of debts. While this remained the law of England, the reason is obvious, why strangers were not allowed to sue in behalf of the estate of the intestate : it was, that the rights of this ecclesiastic would be affected, for he, in fact, succeeded to the possession, even in exclu- sion of creditors. Thus the law continued until the statute of Westminster 2. ordained, that the ordinary should be bound to pay the debts of the deceased ; still, however, the remainder of the estate, if any, belonged to the ordinary, to be applied by him according to his conscience, or, in fiios usus ; yet, it will be remarked, that these " fiios usus" were such as the ordinary chose to regard, and for the discharge of his duty in this re- spect he was accountable to no one. There is no rea- son, therefore, to say, that the estate did not absolutely belong to him. In the 31st of Edward III. the abuses of this authority had become so outrageous and insup- portable, that by statute it was directed that the ordi- nary, instead of administering himself, should appoint the nearest and most lawful friends of the deceased. This was, indeed, a most deadly stroke to his power in this respect; but what remained was not as a new grant, SUPREME COURT OF ERRORS. 85 but only the residue of his former privilege. Thus; June, j arose the law of administrations in England; and so it still remains, except with some few minor alterations u v ' lil LEY. introduced by subsequent statutes. And hence it will appear, that the reason why the deceased could never be represented by an administrator deriving his autho- rity from any other source, was not, that he would otherwise be incapable, but because it infringed upon this privilege of the ordinary, or metropolitan, as the case might be. And this idea is still further enforced from the recollection, that if the deceased had estate in more dioceses than one, the granting of adminis- tration belonged not to the ordinary, but to the arch- bishop of Canterbury or York. From whence we learn, that not only a foreign administrator could not sue, but even a native residing in England could not do this, ex- cept he derived his authority from those to whom it had been graciously granted, and who had carved it up to their own liking. A further argument in support of this position may be derived from the circumstance, that an assignee under a commission of bankruptcy may sue, as such, in a foreign countiy, for debts due the bankrupt. Le Chevalier v. Lynch, Doug. 170. 2 Com. Dig. 27. Now, an assignee, by the assignment from the commissioners, is no more completely invested with all the estate of the bankrupt, and all the rights and privileges annexed . thereto, than this administrator ; and if there is any reason why his power in this respect is more extensive, it must be because he represents a person in life, and the administrator a person who has ceased to live ; the rights of both are equally created by act of law; nor do we find in this respect any difference made between an administrator and executor. And can the assignee have an authority more extensive than an executor, who is * authorized and appointed by the testator for this ex- 86 CASES DETERMINED IN THE June, I808/ press purpose? The reason, therefore, why a foreign R ILEyi administrator cannot sue in England is, that it affects v - the privileges of the consistory or prerogative courts. It will hardly be said, that the reason why administra- tion is granted upon estates in Connecticut is, that the judge of probate may be benefited, or those who act under him. It is, that the property may be appropria- ted to the discharge of the debts of the deceased ; and that the residue may be distributed to his legal represent- atives. A purpose much more pious, than the history of former times would induce us to believe operated upon ecclesiastics of the 12th century. The reason of the English law, therefore, in this instance, does not ap- ply to the laws of Connecticut. But it is objected, that the citizens of Connecticut, after having given credit upon the strength of property in this state, ought not to be driven into any other, to obtain payment of their just claims. We think we shall be able to show, that this will be unnecessary; because, if there be estate in Connecticut, it may be attached; at least, we see no reason to the contrary. It is true, the law does not permit the body of an executor or adminis- trator to be attached, or imprisoned; and the reason is, that the debt is not his, nor is he under any personal liability to respond. This reason, however, extends no further; and on that ground, we contend, that the law extends no further. English precedents to this point cannot be found ; but, in the commonwealth of Massa- chusetts, the practice is according to our proposition. Precedents of Declarations, 90. The writ directs, that the estate, &c. of the deceased be attached, and that notice, Sec. be given to the administrator. By this means, the creditor is secured, and the rights of the adminis- trator remain unviolated. We are sensible, that this has not been the practice in Connecticut ; but, we see no 5 SUPREME COURT OF ERRORS. 87 RlLEY V. RlLIY. reason why it may not be, if the necessity of the case June, 1808. requires it; for the attachment of estate is considered as giving our courts jurisdiction. If it should be said, that the laws of Connecticut providing for the settle- ment of insolvent estates are repugnant to this doc- trine, we answer, that those laws can never operate, unless administration be granted in this state, and then the case will be totally variant from the present; and if such be the laws of other states, which, however, does not appear, yet it will not affect our present question, because, the attachment here by a creditor who has not proved his debt under the foreign administration, will take precedence of any claim afterwards made by such administrator. This has been decided in the case of assignees in Connnecticut, Kirby } 313.; and in England by Lord Mansfield, Doug. 170. But if we are incorrect in this position, we have still another answer, viz., that a court of chancery may interpose, and that the exist- ence of estate in Connecticut will give jurisdiction. And if in either of these ways remedy may be had, the objection fails. And here we will inquire, if the deceased in his life- time might have sued in this state for debts due him, why it is, that his executor who is by him appointed for this express purpose may not ? The executor or ad- ministrator stands, to all intents, in the state of the de- ceased, except their bodies are not liable to arrest ; and they are as fully empowered to do every thing in rela- tion to the estate as an attorney can in any case be, or as an assignee under commission of bankruptcy. In- deed, the estate of the deceased may, in such case, be considered as the real party. If, then, the reason of the English law docs not apply, ill the court find themselves bound by precedent? 88 June, 1808. RlLIY T. RlLEY. CASES DETERMINED IN THE In the case of Nicole v. Mumford, Kir by, 270., it is said, that an administrator being appointed in the state where the deceased dwelt, may in this state sue for the recovery of any property belonging to the deceased. The administrator in that case dwelt in New-York like the present. In the case of Woodhull, &c. v. Gleason 2* Coivles, in the sufireme court, this doctrine was ac- knowledged ; and the court will bear witness, that this has been the constant invariable practice in Connecticut for a long course of years: and although it is shown, that this law arose from, or perhaps rather was confirmed by, a convention between the New England states, yet in our practice, no difference can be shown between them and others. And so far from its proving to the contrary, it not only shows this to be the law of Con- necticut, but that it has immemorially been so; and that without any evil consequences resulting. The counsel for the defendant also relied upon the pro- vision in the Constitution of the United States, that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. Art. 4. *. 1. BY THE COURT, unanimously. By the common law, the power and right of an administrator are given only by the court that appoints him. The power of an ex- ecutor is given by the will of the testator; but his right to appear in any court, and the validity of his acts in that capacity, depend wholly on the probation of the will by the prerogative court, within the limits of that local jurisdiction, in which he claims the power to act. In England, a will must be approved in every pre- rogative court, within the local limits of whose juris- diction the testator died possessed of bona notabilia, in SUPERME COURT OF ERRORS. 89 order to enable the executor to take possession of the .Time, isos. ;roods. RlLEY The courts of probate in Connecticut have, as to this point, a jurisdiction co-extensive with the limits of the state, and no more. RM.EY. During the union of the four original colonies of England, in 1648, it was proposed by the board of commissioners, that " if the last will and testament of any man be duly proved and certified from any one of the colonies, it shall be accepted and allowed in the rest; that if any planter or inhabitant die intestate, ad- ministration be granted by the colony to which he be- longed, and the administration shall be in force for the gathering in the estate in the rest of the colonies." This proposition was approved and confirmed by the statutes of those colonies, and continued to be law, as long as those statutes remained in force. The statute of Connecticut was not repealed on the dissolution of the union, but was omitted in a subsequent revision of our laws. Still the practice has continued to allow, in our courts, the right of action to executors and admi- nistrators, empowered by the courts of the neighbour- ing states, and to consider all their acts in such capacity valid. This practice is not warranted by common law, or by any existing statute. It rests only on ancient custom; justified by convenience and reciprocity, so long as the neighbouring states allowed the same rights to executors and administrators, empowered by the pre- rogative courts of this state. The right is refused in the state of New-York. It has recently been denied in the tufiremc judicial court of Massachuaetis.(a) () See the cao of (jntd, VOL. m. New trial to be granted. fonei, in 3 Mait. /?/>. ~>\ V M 90 CASES DETERMINED IN THE June, 1808. WEBSTER against WOODFORP. A man may MOTION for a new trial, show, that he was nun com- pos mentis in This was an action of ejectment, to recover the undi- avoidance of his deed. vided moiety of certain lands, which the plaintiff and Timothy Webster had conveyed to Miller Fish. Upon trial of the cause, at Hartford, February term, 1808, a verdict was found for the plaintiff. A motion for a new trial was then made by the defendant, and the following reasons assigned; viz. that the court admitted the plaintiff to prove, as the sole ground of his right of re- covery, that the plaintiff was a man of weak capacity, and thereby incompetent to convey estate ; that the court admitted the plaintiff tt> go into the proof respecting the weakness of his understanding, in contradiction to the acknowledgment of two certain deeds of bargain and sale made and acknowledged before a justice of the peace, on the 17th day of May, 1799, which deeds con- veyed the demanded premises to Miller Pish; that the court admitted the plaintiff to produce proof as to the value of the demanded premises, as evidence to show, from the inadequacy of price, that the plaintiff was a man of weak capacity. A rule to show cause was therefore granted; and the question reserved to be argued before the nine judges. Goodrich and Diaighf, in support of the motion, argued, 1 . That weakness of understanding does not incapaci- tate a man to contract. 2. That no man can avoid his own deed, by stultify- ing himself. SUPREME COURT OF ERRORS, 91 1. There is a distinction, always to be regarded, be- j une> jgos. tween idiocy, and weakness of understandino-; the one , WEBSTER supposing a total destitution of mental capacity, the v. other implying the existence of understanding, though WooDFO in a small degree. The term -non comfios mentis does not apply to a person of weak capacity, but only to one who possesses not the exercise of reason. It is the latter description of persons only, whose acts are void or voidable, merely for defect of understanding; and such only are contemplated, in England, by the statute 17 Ediv. II., which was declaratory of the common law. 4 Reft. 126. For no person of the age of discretion, is, in law, presumed to be non comfios mentis, and there- fore is not to be restrained in the exercise of any lawful right, until he is ascertained to be so, by a commission issued for that purpose from the court of chancery. 3 Bac, Abr. 528. On this fact being thus found, the law gives the custody of the person and his estate to the king, that the person may be protected from harm, and the estate from waste. The immediate care of the lu- natic may, however, be intrusted to one commissioned for that purpose, whose acts are subject to the control of the court of chancery. 3 Bac. Abr. 529. Hence originated our statute authorizing the appointment of a conservator; which gives to that officer the same autho- rity which is possessed by the committee of a lunatic, and vests in the county courts powers similar, in this respect, tQ those of the court of chancery. This sta- tute, directing the manner in which such persons, if without property, shall be supported, speaks of persons " naturally -wanting of understanding, so as to be unable to provide for themselves," and of such as, " by the providence of GOD, fall into distraction, and become non com/iot mentis ;" and of those who, " by age, sick- ness or otherwise, become poor and impotcnt.(c) And (a) Stat. Conn. lit. 88. c. 1. s I. 92 CASES DETERMINED IN THE June, 1808. in a subsequent section, it is said, " But if such idiot, WEBSTER distracted or impotent person have any estate, the county v - court of that county where they dwell, may order and \\ OODTORD- dispose thereof." Here, while we remark, that the ob- ject of this statute appears to be the same with that of 17 Ediv. II., the phraseology used in this section is to be particularly observed, as it shows, precisely, what de- scription of persons was meant by those who are natu- rally wanting of understanding, mentioned in the first section. For, however reasonably the term, in itself, might be taken to extend to a person of weak under- standing, yet since, referring to these persons, the phrase such idiot, is used in the subsequent section, this latitude of construction is evidently forbidden ; and the meaning of the statute, in this part of it, confined to idiots, distracted persons, and those who by age, sick- ness or otherwise, become poor and imfiotent. The sta- tute 17 Ediv. II. says nothing of persons of weak under- standing, but speaks only of natural fools and lunatics. Bac. Abr. 5 29. (a) Our statute, indeed, in another part (sect. 8.) goes farther than this, and provides, that if the selectmen " shall find any person or persons ; that are reduced, or are likely to be reduced, to want, by idleness-, mismanagement, or bad husbandry, that then such selectmen may appoint an overseer to advise, direct and order, such person in the management of his busi- ness;" and that " no such person, while under such ap- pointment, shall be able to make any bargain or contract, without the consent of such overseer, that shall be bind- ing or valid in law." But on the subject of persons of weak mind, the statute is everywhere silent. By neither of these statutes, then, are such persons rendered inca- pable of making contracts. And although many cases have occurred, in which it appeared that advantage had () See also Lord Donegal's case, 2 Yes. 407- Ex parte Barnesley, 3 Jltk. 168. SUPREME COURT OF ERRORS. 93 been fraudulently taken of the imbecility of such per- j un e, 1808. sons, and, on that ground, their contracts have been \V EBSTER annulled : yet it has been uniformly held, that where v - WOODFORD that reason did not exist, they were not to be relieved, either at law or in equity. 1 FonbL 57. 3 P. Wms. 129. Oaborne v. Jfitzroy. " Where a weak man gives a bond, if there be no fraud, or breach of trust, in ob- taining it, equity will not set aside the bond only for the weakness of the obligor, if he be comfios mentis ; neither will this court measure the size of people's un- derstandings or capacities, there being no such thing as an equitable incapacity, where there is a legal capa- city." In the case of Sennet v. Vade, 2 Alk. 324., on a bill brought by the heir at law of Sir John Lee, to set aside the conveyance of his estate, upon a suggestion of fraud and imposition, Lord Hardwicke agreed, " that if Sir John Lee was not insane, but only weak, he might do an act that will bind him; for there cannot be two rules of judging at law and in this court upon the point of insanity." If, then, mere weakness of understand- ing does not incapacitate a man to contract, it follows, that when he contracts without fraud or imposition, his contract is binding. That this sale was affected in con- sequence of any fraudulent practices on the part of Fish does not appear. Nor is any other mark of fraud sug- gested, than that the price was inadequate to the real value of the land. It is conceded that such a circum- stance as total inadequacy of price, coupled with great weakness of mind, in the grantor, will raise strong pre- sumption of fraud; but the facts which appear in this case authorize no such presumption. Indeed, the court admitted proof of the value merely as evidence of Web- ntcr'e weakness, and not of fraud or oppression on the part of (a) Flow far in- In . ,< re- : < see Jmbl. 18. 1 Bro. Chan. Hep. 9. '2 lira. Chan, Krp. i i 10 Vet. jun. 47-i. 7 Vet. jun. 30. 8 Vex. jun. 137. 94 CASES DETRRMFNED IN THE June, 1808. [The counsel for the plaintiff here objected, that on WEBSTER tne tr ^ ^ tne cause > tne y did not proceed on the v ground that the plaintiff was a man merely of weak un- WOODFORD. D derstanding, but that he was non compos mentis. SMITH, J.j on referring to his minutes, then stated- That on the trial of the cause, the defendant having given in evidence two certain deeds from the plaintiff and his brother Timothy Webster, conveying all the lands in question to Miller fish, the defendant's counsel ob- jected to the admission of evidence to prove the incom- petency of the plaintiff to convey lands; because the deed, having been acknowledged before a public officer, authorized to take such acknowledgment, there could be no averment against such solemn act; and because no man can be permitted to allege his own incapacity to avoid a conveyance. The court overruled the objec- tion, and admitted the evidence/] This statement of the case seems not very obviously to present a specific question. Are we to argue the point, that proof of the plaintiff's incomjietency to con- vey should not have been admitted? If the evidence offered were, generally, that he was incompetent, with- out showing the reason of the incompetency, whether infancy, idiocy, lunacy or imbecility, the point would scarcely admit of argument. If the point is, that no man can allege his own incapacity, we have no case; be- cause infancy, clearly, may be alleged. [TRUMBULL, J. I understand the question, upon the statement, to be, whether a man may be allowed to stul- tify himself.] That a man cannot stultify himself, to avoid his own grant, is a well established principle of the English law. It is so said by Littleton, sect. 405.; and has been so 5 SUPREME COURT OF ERRORS. 95 field in a multitude of cases, since his time. In June, isos. Beverly's case, 4 Refi. 123., it was resolved, " that every -WEBSTER deed, feoffment or grant, which a man, non comfios men- v - \\ O O T) T"OH "9 (is, makes, is avoidable, and yet shall not be avoided by himself^ because it is a maxim in law, that no man of full age shall be, in any plea to be pleaded by himself, received by the law to stultify himself, and disable his wn person" A contrary opinion is, indeed, given by Fitzherbert. F. N. B. 449. D. But in the case of Stroud v. Marshall, Cro. Eliz. 398., in debt on an obligation, non sane memory was adjudged to be no plea; and the opinion of Fitzherbert expressly held to be not law. So also Co. Litt. 247. And in Cross v. Andrews, Cro. Eliz. 622., an action on the case against an innkeeper, for not keeping the goods of his guest safely, in which the defendant pleaded that he was sick, and of non sane memory; this plea was held insufficient, because " h lieth not in him to disable himself no more than in debt upon an obligation." The principle is also recog- nised by Lord Holt, in Thompson v. Leach, 1 Ld. Raym. 315.; and is found in 3 Coin. Dig. 483. D. 6. 3 JSac. Abr. 537. 15 Vin. Abr. 137. D. 2. 1 Fonbl. 45. The utmos' danger is to be apprehended in admitting the doctrine. that a man may stultify or disable himself in court; as it is a direct contradiction to a plain maxim of the com- mon law ; as it would give rise to endless disputes, arid , would afford ample scope for fraudulent practices. It need not be denied that inconveniences may sometimes result from the doctrine for which we contend. If this were a sufficient objection, it might be made, with equal reason, against the establishment of all general princi- ples. The inconveniences to be feared from admitting the maxim of the common law, arc, however, compa- ratively small. With respect to absolute idiots and madmen, the danger is nothing. But from the. h portion of intellect to the greatest, the gradations innumerable; and who shall determine at what point in- 96 CASES DETERMINED IN THE June, isos. tellcctual weakness ends, and idiocy begins ? There is, WEBSTER an( ^ can ^ e ' no stan dard of mediocrity. Leave men to T - the plain principles of the common law, and friends \\ OODFORD. will take care of the weak and incapable. But if it is once understood, that the contracts of a person non com- fioa mends are void, all very weak men, if their friends shall think it for their interest, may be made, for this purpose, non compos mends; and the imagination can scarcely explore the field of mischief to its limits. After all, we are aware it may be said, that this doctrine has been exploded in this state. It is true, cases have oc- curred, within the last fifty years, in which it has been held, that a man might stultify himself. Such decisions x are found, however, only in this state; and our own state of society offers no reason to show that the ope- ration of the English common law would be inequitable here. It cannot truly be asserted, that the adoption of this principle would create new rights, inconsistent with those which the contrary decisions have conferred; be- cause this is not one of those cases in which a great mass of property has conformed itself to the decisions. By the English, common law, the disability of a grantor to avoid his own deed, by showing insanity, affects not the rights of his heir or executor; since, for them, this is good reason to avoid the grant; (4 Refi. 124.) and the heir may even enter without a scire facias. 15 Vin. Abr. 136. D. As to the lunatic himself, the provisions of our statute sufficiently protect him. But if he be per- mitted to plead his own insanity, within what limits shall this liberty be confined ? Suppose one called as a juryman declares himself insane. Is the fact then to be ascertained, and the question settled ? Or one is elected to an office, and makes the same objection to serving. The same question is to be settled before he can legally be excused. An idiot or lunatic is certainly to be considered as personally removed from all civil ob- SUPREME COURT Of ERRORS. 9 ligations and duties to society.(a) But surely he should June, isos. not be thus discharged, on his own plea, in a mere civil action. The public have an interest in the ques- tion; and no man should be disfranchised or discharged from his public duties, until his idiocy or lunacy has been solemnly established by a public inquisition. And can the law be called a safe one, as it respects the pub- lic, or individuals, that a man may, by mere civil plea, discharge himself from his duties to society, and cut himself oft' from its privileges? In criminal cases, in- deed, the pai-ty accused may excuse himself on the ground of insanity; and with great propriety; for the law, here, only concurs with reason and humanity, which revolt at the idea of punishing a man for the commis- sion of a crime of which he must have been uncon- scious, and the restraints to Avhich have been removed by the mere act of Providence. But in such cases, the question of insanity is decided on a charge made by the public, in an issue to which the public is party. It is also unavoidable; because we are under a necessity either to admit the plea, or run the hazard of punish- ing a man who is not a moral agent. It may be said, on the whole, that this is always a question of much importance; deeply affecting the welfare of the party, and the interest of his friends; and one in which society have a near concern. Its determination should, there- fore, be accompanied with more solemnity and caution than can attend the hearing of an incidental pica in a civil action. In addition to the reasons alleged against the general doctrine, it is to be observed, as to this particular case, which is an action oi ejectment in the usual form, that from the declaration the defendant has no notice of the (a) " Pools and madmen are tacitly cxccptcd out of all lavs wh-i' -." i - j Ml. '> 98 CASES DETERMINED IN THE June, 1S08. ground of the plaintiff's claim, and therefore cannot be WEBSTER prepared to disprove his idiocy. E. Perkins and Brace, contra. The doctrine, that a man can in no case be admitted to stultify himself, al- though now received to be law in England, was not an- ciently so considered ; nor has it been, in modern times, universally approved of, or acquiesced in; for to some, as is said by Lord Coke, the civil law, by which all acts done by idiots or persons non compotes mentis, without their tutor, are utterly void, seems more reasonable than the common law. 4 Rep. 126. There is, in fact, much absurdity in permitting persons under the age of twenty-one years, to avoid their own deeds, because they are supposed wanting in discretion to contract, and yet denying this privilege to idiots and lunatics, who must be, at least, equally destitute of discretion. The common law, indeed, tacitly admits this absurdity; for while it leaves utterly without remedy the party from whom Providence has withheld the means of self protec- tion, and who, therefore, more needs the protection of the law, it still makes the grant of a person non compo* voidable by the king, and by the representatives of the grantor. What good reason, if any, there may have been for the distinctions which are found(c) between the cases of infants and persons non compos, as to their ca- pacity to contract, and for many consequent distinctions, it is now impossible to discover. These distinctions, which seem to have been the result of a departure from the course which common sense dictates, Fitzherbert, in his comments on the writ of dum Jfuit non- compos mentis, does not scruple to reject as groundless. His opinion has been alluded to, and is strongly opposed to the mo- dern doctrine, " Some have said, that writ lieth not by him who alieneth the land, because he shall not dis- (a) See Co. LUt. 9A7. 4 Rep. 125 SUPREME COURT OF ERRORS. 99 able himself, nor contradict his own deed; but that j une , isog. seemeth to be little reason; for this is an infirmity which , v ~ i E. B S i E H cometh by the act of GOD, and it standeth with reason v. WOODFORP that a man should show how he was visited by the act of GOD with infirmity, by which he Ipst his memory and discretion for a time." He then shows an analogy, as to want of discretion, between insanity and infancy; and because an infant may allege that he was within age at the time of his feoff raent, " a fortiori, then he Avho is of non sane memorie shall allege that he was not of ane memorie at the time of his feoffment or grant, for he who is of unsound memory hath not any manner of discretion." In this opinion, although it has been held no law, Fitzherbert is not singular. The same has been, at least, intimated by Sir William Blackstone, 2 Com. 296.; and Suiter's JV. P. 172., says " The defendant may give in evidence that he made him sign it (an obligation) when he was so drunk that he did not know what he did ; or that he was a lunatic at the time." This was done in the case of Yates v. Boen, 2 Stra. 1104. And in Thompson v. Leach, 3 Mod, 310., the court expressly say, that the grants of infants and persons non com/iotes, are parallel, both in law and reason; and that as there are express authorities(c) that a surrender made by an infant is void, therefore, the surrender then in question, made by a person non comflos, was also void. Though this conclusion will not, perhaps, be denied, it will still be said, that the reason for which the grant is void, if it be insanity, and not infancy, is not to be shown by the party himself. But why is not the parallel to be carried through ? Because, in the language of the common lawyers, " when he recovers his memory, he cannot know what he did when he was nw com/ioa mentis." This, in reality, is exactly the reason that common sense \rould suggest, why he should be permitted to avoid hi*> () Lloi.'tlr. fir,- , r C 1QO CASES DETERMINED IN THE June, 1808. grant. The reason, however, has been perverted to a WEBSTER wroil g application, by indulging in speculations too re- ... v - fined for useful practice, but which cannot, perhaps, easily be shown, on abstract principles, to be false. A man, it is said, cannot remember an act done by him while lie was devoid of reason and of memory; and must, therefore, afterwards be unable to say any thing respecting it. Without inquiring how far mental de- rangement may impair the memory, we venture to say, that the fact may as safely, and as consistently with good sense, be allowed to be Jiut in issue by the party himself, as by his heir or his executor. In criminal cases, this is always permitted, though it would be difficult to show, that criminal acts committed by the party during his insanity can better be remembered by him, than acts of a different nature. The maxim, however, there is reason to believe, is peculiar to the common law of England; and was, as we are told by Fonblanque, " en- deavoured to be set up by the common lawyers in defiance of natural justice, and the universal practice of all the civilized nations in the world." Certain it is, the maxim has not yet been adopted in Connecticut, but has been opposed by many contrary decisions ; as is agreed by the counsel for the defendant. Here, indeed, the reasons against the adoption of this doctrine, aside from these decisions, apply with peculiar force; because here a scire facias does not lie to avoid the alienations of a person non comjios mentis; nor can actions against him be set aside by su/iersedeas, as in England. So that, notwithstanding the provisions of our statute, he is left without efficient protection, if his plea of non sane me- mory is refused. BY THE COURT unanimously. It is not a question, whether a deed, executed by a person non comfios mentis^ is voidable, for want of capacity in the grantor to con- vey. All admit that it is; and that such a deed may be SUPREME COURT OF ERRORS. 101 avoided, in a court of law, by the heirs of the grantor; j une , 1808. although, it is said, that by the common law, this can- WE "^ ER not be done by the grantor himself. That this doctrine *. WOODFORB. is supported by decisions of the English courts is true; and the reason assigned by those courts is, that a man shall not be admitted to stultify himself. But this was not always the common law of England. Certain it is, there is a writ in the register given to a man who has been insane, and who, during his insanity, has aliened his land, to recover it, after his reason is restored. In the time of Edward the First, non comfws mentis was allowed to be a sufficient plea to avoid a man's own bond. It was not until the reign of Edward the Third, that any scruple was entertained respecting the power of a person, who had been non com/ios mentis, to avoid his act ; and it was as late as the reign of Henry the Sixth before there was any judicial determination, that a person who had been non comfios mends could not avoid a deed given by him, during his insanity. This determination was followed by similar decisions, and re- ceived by most of the Englis/i writers to be settled law. Justice Blacksione observes, that this doctrine sprung from loose authorities; and he manifestly approves the opinion of Fitzherbert, who rejects the doctrine, as con- trary to reason. He says also, that later opinions, feel- ing the inconvenience of the rule, have in many points endeavoured to restrain it. This rule has been sup- ported with great earnestness by Powell, who gives a reason in support of it, which is not to be found in the books, viz. that a different rule would open a door for fraud ; because a man might feign himself ?;r sign of said monster was by said Knovflea placed at the corner of said streets, in the view of great numbers of the good people of this state, who saw said picture or representation as aforesaid. And the said attorney further informs, that immediately after the said KnowlfK had placed said picture as aforesaid, vi:. on or about thr 8th day of said Drrrmber, the said Knwlr* did pliiro [Q4 CASES DETERMINED IN THE June, 1808. and carry into the dwelling-house of said Candee, (it KXOWLES being a public house,) the monster represented by said T s v> picture and representation; and the said Knonvles did then and there unlawfully expose, and exhibit, and show said monster as a show, to divers good people of this state; and did then and there take and extort from di- vers good people of this state, large sums of money for exhibiting and showing said monster or show to them as a show. And the said Knoivles did then and there, in an unlawful manner as aforesaid, expose said monster to persons of all ages, and both sexes; and did thereby terrify many of the good people of this state ; Avhich said monster was highly indecent, and improper to be seen, or to be exposed as a show. And the said picture was placed at the corner of said streets, with intent to notify all persons that said monster was to be seen at the house of said Candee, and to invite them to call and see the same ; which was to the great annoyance of the good people of this state: all which conduct of the said Knowles, as aforesaid, was, and is, against the peace, highly indecent, of public evil example, and against the statute law of this state, in such case made and provided. The defendant pleaded not guilty ; and the jury found a verdict against him. He then moved in arrest of judgment, for the insufficiency of the information. The court adjudged the information sufficient; and inflicted a fine upon the defendant of sixty dollars. On a writ of error, that judgment was affirmed by the superior court. To reverse those judgments, the present writ of error was brought. Daggett and Stafiles, for the plaintiff in error. 1. This information purports to charge an offence -.fj'ttra formam Ktatitri. The only statute which is relied SUPREME COURT OF ERRORS. 105 on, as bearing upon the case, is that for the suppres- June, isos. sion of " Mountebanks" tit. 116. The first section of RNOWLES that act is as follows: " That no mountebank, tumbler, * THESTATE. rope-dancer, master of puppet-shows, or other person or persons, shall exhibit, or cause to be exhibited, on any public stage or place whatsoever, within this state, any games, tricks, plays, shows, tumbling, rope- dancing, puppet-shows, or feats of uncommon dexterity or agility of body, or offer, vend or otherwise dispose of, on any such stage or place, to any persons so col- lected together, any drugs or medicines recommended to be useful in various disorders." But we contend that the information charges no offence within these words. It is not alleged that Knoivles exhibited any games, iricks, plays, tumbling, rope-dancing, puppet-shows, or feats of uncommon dexterity or agility of body; nor that he offered to vend or dispose of any drugs or medicines. The word " shows" then, is the only one which can touch this case. But can it be supposed the legisla- ture, when they used that word, had any reference to natural curiosities ? If so, every thing that is vulgarly called a sight, or show, is within the statute. The wor- thy farmer at East Windsor, who exhibits his large ox, is a great offender; so is the keeper of the museum in Hartford; and so are the scientific gentlemen who gathered, and now show to their friends, fragments of the meteor that lately exploded over \Vcston, Whe- ther the exhibition is made gratuitously, or not, makes no difference; for the statute says nothing about the " shows" being made for money. But of whatever nature the exhibitions may be, which the statute prohibits, we contend that Knowles does not come within any of the descriptions of fiersons therein specified. He is not described as a mountebank, tumbler, ni. p CASES DETERMINED IN THE e, 1808. rope-dancer, or master of puppet-shows. If included KNOWLES at a ^ ^ e must then, come within the general clause " or other fierson or Jiersons." But this clause is too f RESTATE. vague and loose to be the ground of a criminal prosecu- tion. The statute 14 Geo. II. c. 6. providing against the stealing of shee/i or other cattle, was held to extend to nothing but mere sheep; and it was found necessary to make another statute to protect bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs. 1 BL Com. 88. 2. Can this judgment be supported upon principles of the common law ? Such an exhibition as is here set forth has never been deemed an offence by the common law of England. No precedent for such a prosecution can be found in the books. To speak of a new offence at common law is a solecism. If the conduct of Knowles was immoral in its tendency, it was an immorality no t to be punished by human laws. But it may well be questioned, whether there was even an immorality in this exhibition. What was the thing exhibited ? A real production of nature ; a natural curiosity. There was no imposture, no juggling, no necromancy, no leger- demain. A young lady was lately seen in our principal towns without hands or feet. No one thought this ex- hibition criminal, or in the least degree immoral. This lady, to be sure, was handsome; but can the beauty or deformity of the object make any difference as to the point under consideration ? 3. The information is ill for duplicity. It sets forth two distinct offences : First, that of exhibiting the pic- ture at the corner of Elm and College Streets; and se- condly, that of exhibiting the monster at the house of Candec. It is also ill, because it contains no sufficient description of the show. It only says, in general terms, that it was " a horrid and unnatural monster." It ought SUPREME COURT OF ERRORS, 107 to be so particularly described, that the court may sec j u ,i C , isos. whether the exhibition of it was an offence, or not. KNOWLES v. 'I 1 H p jj "T A TE Ingeraoll and Al Sntith, for the prosecution. 1. This is a statute offence. There was an exhibi- tion of a public show, in a public house, for money. It called people together in a public place, and induced them to waste their time and money. It was within the words of the statute, and productive of all the evils which the statute was meant to guard against. 2. It is a common law offence. Whatever is against good morals ; whatever strongly affects the feelings of mankind, and gives them offence, is punishable at com- mon law. There is a sound firinci/ile to support the prosecution ; from the peculiar nature of the case, pre- cedents exactly in point are not to be expected. 3. The information is not double. The giving no- tice that there would be such an exhibition is no offence. But if that was a distinct offence, the information will not be bad after verdict ; it could be so only on a spe- cial demurrer. If the party submits to go to trial on the general issue, he waives all exception as to form. BY THE COURT, unanimously. The statute on which this information is grounded, prohibits all persons from exhibiting " on any public stage or place whatsoever, any games, tricks, plays, shows, tumbling, rope-dancing, puppet-shows, or feats ofuncommon dexterity or agi- lity of body," under a penalty. The word ahowt, which alone can apply to this case, has no technical meaning, known in law; and it cannot be extended by construc- tion, to render criminal the mere exhibition of a work of art, a natural curiosity, or the collections of a mu scum. 108 CASES DETERMINED IN THE June, 1808. Every public show and exhibition, which outrages de- KNOWLES cenc y shocks humanity, or is contrary to good morals, is punishable at common law. The averment in this in- THESTATE. formation, that it is contrary to the statute, may be re- jected as surplusage, and will not vitiate. But such an information must particularly state the circumstances in which the indecency, barbarity or immorality, consists; that the court may judge whether the public exhibition of the show amounts to a crime. This information alleges, that said Knotales exhibited a horrid and unnatural monster, highly indecent, un- seemly, and improper to be seen, or exposed as a show; but states no circumstances in the description of its appearance, which show this allegation to be true: it cannot be supported, either at common law, or on the statute. Judgment reversed. GREGORY FOSDICK against THE NORWICH MARINE INSURANCE COMPANY. Au interest in CASE Stated, the vessel and cargo, gives a j lnter | st In This was an action on a policy of insurance. The de- the profits of the voyage, fendants pleaded non assumfisit. A verdict was found for which may he . . the subject of the plaintiffs, for 6,502 dollars, subject to the opinion of insurance. lhe courtj Qn t h e following Case* Jl. insured 6,000 dollars, as profits on a cargo, at and from Bordeaux to the West Indies. At the time of effecting the insurance, A. represented to the insurers, that he had received advice from his correspondent at Bordeaux, of the vessel's arrival there, and of the state of the market, and that it was expected a cargo would be obtained, worth from 20,000 to 25,000 dollars The vessel actually sailed with a cargo worth but 9,251 dollars. Held, there was no misrepresentation. In case of an insurance upon profits, and a total loss, no abandonment is neces- 097. SUPREME COURT OF ERRORS. 109 The plaintiffs assured, at the Norwich Marine Insu- June, 1808. ranee Company, six thousand dollars, as profits on the FQSDICK cargo of the brie Celia, valued as insured, at and from , v - NORWICH Bordeaux to St. Bartholomew and Guadaloufie, or MAR. INS. either of them ; warranted against average or partial loss; and in case of total loss, proof that the property belonged to citizens of the United States, to be made in the United States. A policy was duly executed on the 22d day of May, 1804. At the time of effecting the insurance, the plaintiffs represented to the defend- ants that they had received advice from their corres- pondent, at Bordeaux, of the arrival of the Cctia at that port, and of the state of the market; and that it was expected a cargo would be obtained, worth from 20,000 to 25,000 dollars. The plaintiffs shipped on board the Celia, at Bordeaux, a cargo of wine, oil, soap, and dry goods, valued at 9,251 dollars, being the avails of the outward cargo. The plaintiffs were citizens of the United States, owners of the vessel and cargo. The vessel was furnished with all the necessary papers and documents, for a neutral and American vessel, and sailed from Bordeaux on the first of June, 1804, for St. Bartholomew and Guadaloufie, Bradford Taber, a citizen of the United States, being master; and on her voyage was captured by his Britannic majesty's ship of war the Hififiomenes, on the first day of July following; and on the same day carried into the island of Antigua; of which the plaintiffs gave notice, and made proof to the Insurance Comfiany on the 26th day of October, 1804, and offered to the secretary of the company to abandon; to which the secretary replied, that he deemed no abandonment necessary ; but if it should afterwards be found to be necessary, the abandonment should be considered as having been made at that time. The question for the opinion of the court is, whether the plaintiffs are entitled to recover ? If so, the verdict to stand ; if not, a nonsuit to be entered. 110 CASES DETERMINED IN THE June, 1SOS. Robbing for the plaintiffs. This case presents three questions: l - Whether the profits of the voyage were an insura- COMPANY. hie interest? 2. Whether the representation made at the time of effecting the insurance was false, so as to avoid the policy ? 3. Whether there was a sufficient abandonment? 1. The only objection that can be raised against an in- surance of this description, is, that profits, having no actual existence at the time of the insurance, and de- pending on a variety of contingent events, cannot be ascertained with any reasonable degree of certainty ; and, therefore, such a contract, respecting them, must have the effect of a wager. Such a doubt can only arise by supposing a similarity between a contract of this na- ture, and an insurance of property interest or no inte- rest, which is made void by the statute 19 Geo. II. c. 37. It may be allowed, that such an insurance would be held equally void here, as it would under this statute in En- gland; because our laws lean most strongly against gambling transactions in any shape. But we apprehend that profits, in reasonable expectancy, form an interest which may well be insured, notwithstanding this statute, and notwithstanding our laws are decidedly opposed to every species of wagering contracts. The common law, indeed, goes much further to support insurances, than is necessary to our case; for it is now well settled, that before the statute of Geo. II. a person might have in- sured without interest. 8 Term Rep.. 23. Since that statute, the practice of insuring on future profits has been continued; and is justified by the case of Grant v. Parkinson, which was an insurance on the profits of a 5 SUPERME COURT OF ERRORS. HI cargo, valued at 1,000/. " without any other voucher June, 1808. than the policy." In this case, no doubt was entertained FOSDICK that the assured had a sufficient interest ; though Lord T T. Mansfield, at first, thought that the words " without any MAR. INS. other voucher than the policy," would bring it within C MPASY - the statute; but this opinion he afterwards changed, and judgment was given for the person insured. Marsh. 111. Park, 267. The same principle has been recog- nised in many subsequent cases; and very fully in Bar- clay v. Cousins, 2 East, 544.; and must be considered as establishing the doctrine that profits, eo nomine, are in- surable. Here the court held, that though insurance is a contract to indemnify the insured, yet that indemnity is not to be considered as only for the loss of property which had been in actual possession ; but might reason- ably be extended to secure the avails of a voyage ; as it is " not an improper encouragement of trade to provide that merchants, in case of adverse fortune, should not only not lose the principal adventure, but that that prin- cipal should not, in consequence of such bad fortune, be totally unproductive: and it is but playing with words to say, that in such case there is no loss, because there is no possession. "(a) It will avail nothing to say, that in such casejthe interest of the insured cannot be proved, because the profits may be greater or less, or none at all, according to the existing state of the market; for, as in all cases of valued policies, it is sufficient to prove such an interest as shows merely that no evasion was intended, so where profits are insured, it is unnecessary to make actual proof, that in case of safe return, the Insured would have realized profits to the full amount of the policy, but only that the particular circumstances of the case, or the general state of the market, would justify an expectation of profit to such an amount as would show the transaction not to be merely drcrp'ivr. (ti) Rrr 2 EffV, 547. CASES DETERMINED IN THE ,lune, 1808. or entered into with a view to a fraudulent loss. Lewis FosnTcK v- Rucker, 2 Burr. 1167. Neither this idea, nor the T - principle that profits are insurable, is in the least opposed J* O tl W 1 C H MAR. INS. by the decision of Hodgson v. Glover, 6 East, 316. That COMPANY. cage wag Directly w ithin the statute; it being expressed that no other firoof of interest -was to be required than the fioticy. No question was made, as to the insurability of profits; on the contrary, the counsel for the de- fendant declared, that he did not mean to dispute, since the case of Barclay v. Cousins, that the profits of trade were insurable; so that the doctrine was explicitly as- sented to. 2. The next point is, as to the representation made by the plaintiffs. The objection is, that the plaintiffs obtained insurance to the amount of 6,000 dollars, by- declaring that they expected to procure a cargo of much greater value than that which was actually received; and that it was impossible such profits could be realized on this last. The representation itself appears to have been precisely true, as it contained no assertion of facts, but made the defendants acquainted only with the in- formation which the plaintiffs had received from their correspondent at Bordeaux. If this information finally- proved to be incorrect, it is of no consequence ; for the plaintiffs cannot be answerable for the false opinions or expectations of their correspondent. But the represen- tation, whether true or false, was wholly immaterial to the risk, and could only affect the amount of interest. That the plaintiffs had such an interest in the ship and cargo as would afford good reason to expect some profit from the voyage is not to be denied. What the proba- ble amount of profit would be, they could only judge from knowing the markets at Bordeaux, and the value and description of the return cargo. For this they must depend on the information of their correspondent. Such information on this subject as they had, they fairly sub- SUPREME COURT OF ERRORS. 113 xnitted to the insurers. If their calculation was extrava- June, isos. gant, the defendants might have made a better for j.' OSDICK themselves. The whole transaction shows that it was an error of opinion, a disappointment of expectation, MAU. INS. .. r . , COMPANY which is never evidence of a material misrepresenta- tion.^) The fairness of the transaction may be tested by a question similar to that put by Lord Mansfield in the case of Pawson v. Watson, Coiufi. 789. Did the expected value of the cargo induce the defendants to underwrite the policy ? If it did, they would have said, put it into the policy; warrant that the ship shall leave Bordeaux with a cargo worth 25,000 dollars. " There is no fraud in it, because it is a representation only of what, in the then state of things, they thought would be the truth." The defendants here acquiesced in the plaintiff's belief, by not requiring other information, and a particular warranty, and so have assumed the risk of its correctness. But it does not appear that the calcu- lation was ill founded; since, for the probable value of the return cargo they must trust to the information of their correspondent; and if this had proved to be cor- rect, the sum insured could not have been unreasonable. 3. The remaining point is, respecting the abandon- ment. This is not essential, where there is an absolute destruction of the property insured. In such case, the insurer becomes immediately liable for the whole amount insured, without a formal abandonment ; which would be but a vain ceremony when nothing is left to abandon. Here the firofits of the voyage must be con- sidered as totally destroyed by the capture and detention of the ship, so that a formal abandonment was not ne- cessary. The insured need not, however, in any case, abandon, and claim for a total loss. If he do not aban- don, he will only recover according to the loss actually (a)Marthall, r. VOL. in. 114 CASES DETERMINED IN THE .lune, 1808. sustained. There has, however, in this case, been an actual abandonment; for the secretary, to whom it wae r OSDICK T - made, ia the accredited agent of the company; or, at NORWICFI . MAR. INS. least, the organ of communication with the corporation. ^ n abandonment to him is, therefore, sufficient. Dana and Goddard, for the defendants. 1. It cannot be pretended that, because a wager contract of insurance may be said to have been good at common law, and to be void, in England, only under the statute of Geo. II., therefore, such a contract may be sup- ported in this state ; for here no action can be main- tained on any wagering contract, whether entered into by way of insurance, or in any other mode that may be devised; such contracts being wholly repugnant to the policy of our laws. The object of insurance is to in- demnify the party insured against the hazard to which his property is exposed. It is apparent, that such a contract may be easily perverted to mischievous pur- poses. So, indeed, has been the fact ; and much vigi- lance ought to be used to diminish the opportunities of abuse, or, at least, to prevent their increase. A pow- erful means of effecting this object is, to make the safety, rather than the loss of the property, conducive to the interest of the party insured. The abuses which arose from insurances without interest, gave occasion to the statute before mentioned ; but if the design of this sta- tute and the policy of our laws may be evaded by a sub- stitution of different terms, or insuring a sum consider- ably beyond the value of the property, abuses may occur to such an extent as to render them unavailing. The objection to an insurance of profits is, that they have no actual existence ; that they are only in expectancy, and may never be realized. So that there may be the same temptation to fraud which there is in insurances with- out interest. Cases, indeed, may exist, in which the SUPREME COURT OF ERRORS. probability of profit, in case of safe arrival, is so strong j un e, 1808. as to constitute an interest which may afford a. reason*- posnTcK ble ground o f insurance, as connected with the ship and v - NORWICH cargo. Such was the case of Grant v. Parkinson, an MAR. INS. which the plaintiff had made such a contract with the 0> government as to exclude every contingency of market, and render the profits certain on the arrival of the ship. So, where the course of trade is well understood, and not liable to fluctuation, the calculation of profit may be reduced to a kind of certainty, as in the case of Barclay v. Cousins. But all this amounts only to an insurance of what the goods shall be worth on their ar- rival at the port of delivery, and is very different from an expectation of profit, depending on a constantly fluc- tuating market. The same is true of an insurance of freight, the amount of which is ascertained by the con- tract itself, and may be demanded of the freighter! in virtue of the contract. In such cases, there is always a rule by which the loss may be computed on an open policy. But profits depending merely on the state of the market, if insurable at all, can be so only by a va- lued policy, which " will open a new door to the eva- sion of the statute 19 Geo. II-"() The opinion of Marshall seems to be, clearly, that profits, eo nomine. are not insurable; the object of insurance being, as he observes, " not to make a positive gain, but to avert a possible loss." And no case can be found which goes the length of establishing the doctrine that loss arising from the state of the market merely, is a subject of in- surance. In Grant v. Parkinson, the interest proved at the trial was the profit, to the amount of the sum insured. The insurance, however, was on the ship and cargo ; property in actual existence ; and the profits, as was said by Lord Manxjield, were " pretty certain," and were Connected with the property insured. But this question (n) Marthati, 79. CASES DETERMINED IN THE June, 1808. has been settled, in England, in the late case of Hodg- FOSDICK son v ' Glover; which was an insurance on the profits of v - a voyaere, valued at the sum insured, without further NORWICH . INS. proof of interest than the policy. The objections were, that this last provision brought the case within the statute ; and that there was no proof that profits would have been realized. Lord FMenborough said, that " at all events the objection is decisive, that the plaintiff does not show that he has sustained a loss by the perils of the sea. He does not show that if there had been no shipwreck, and the slaves had all got to a market, any profits would have been produced. It should have been shown that but for the peril insured against, which happened, there would have been profit upon the adven- ture." Here it does not appear, that had the vessel ar- rived safely at her port of delivery in the West Indies^ any profits would have been produced ; therefore, upon the authority of Hodgson v. Glover, there can be no re- cover)'. This case is of later date than that of Barclay Y. Cousins, to which it is, in some degree, opposed. But even that cannot be said to have established the principle that profits, independently of the thing from which they are to arise, are insurable ; or that, in case of an insurance on profits, there can be a recovery with- out proof of such a state of the market, as to afford " a pretty certain" expectation of profits; which is, at all events, indispensable. 2. Any misrepresentation of a fact material to enable the insurers to estimate the risk, is sufficient to avoid the policy .(a) This representation need not be wilfully made, with a preconceived design to deceive the insurer. For although the insured does not know the representa- tion to be false, it will still be fatal, if it be material to enable the insured " to make his calculations, and ap- (o) Marshall, 334, 355. SUPREME COURT OF ERRORS. 117 predate the risk." On the representation of the party June, isos. applying to be insured, two questions are always to be FoTuTcK. decided: shall insurance be made ? and on what terms? , v - NORWICH These must depend upon the circumstances attending MAR. INS. the particular case ; not only the hazard of capture and shipwreck, but the probability there may be of want of due care in the master and mariners, and the temptation on the part of the insured to effect a fraudulent loss. This is a circumstance which, if known to the insurer, would always occasion an increase of premium, if not a refusal to assume the risk ; for insurers will not calcu- late their policies so as to make it for the interest of the insured to act unfairly ; but on the contrary, they would choose that the insured should be interested to promote the safety of the voyage, as this affords a secu- rity for attention and care. In this case, it may well be supposed, that had the insurers known, that instead of a cargo worth 25,000 dollars, the ship would have sailed with one worth but 9,000, they would not have taken a risk on the profits to the amount of 6,000 dol- lars, for the same premium. The information respect- ing the value of the cargo was, therefore, material'; and although not known to be false, yet in fact being so, it is sufficient to vitiate the policy. 3. An abandonment, in this case, was necessary, be- cause there was not an absolute literal destruction of the ship and cargo; but a possibility remained of their recovery ;(a) and of profit still arising from the voyage. The abandonment, however, which it is pretended was made in this case to the secretary of the company, is not sufficient. The insurers are an incorporated com- pany, who act only by their president and directors; and the abandonment should have been made to them. If it is said that no abandonment is necessary, as there was (a) Park, 82 14.1. Mwthalt, fnitsim. 1 T. R 310 613. 2 floor, 404 118 CASES DETERMINED IN THE June, 1S08. nothing to abandon, the same reason will overthrow the FOSDICK Plaintiffs' right of action ; because if there was nothing NORWICH MAR. INS. COMPANY. to abandon, there could have been nothing to insure. BY THE COURT. An interest in the vessel and cargo gives an interest' in the profits of the voyage. Such an interest in the expected profits is an insurable interest. The misrepresentation, or suppression, of material facts will vitiate a policy of insurance. But in the pre- sent case, the expectation of profits, and the facts on which that expectation was grounded, appear to have been truly stated. There was no misrepresenta- tion. An abandonment to the agent, is an abandonment to the insurers. But the capture of this vessel, under the circumstances of the case, amounted to a total loss of the profits insured, and no abandonment was neces- sary. Judgment to be entered for the plaintiffs. EBENEZER ROWLEY against SAMUEL YOUN. A. having a WRIT of error. suit pending in court a- gainst B., the -phis was an action on the case, brought by Young parties mutu- . . . ally agreed, against Rowley, alleging that the plaintiff had an action that it should be called out, and submitted to arbitration, and that the costs which had arisen, and should arise thereon, should follow the award. The arbitrators met, and A. attended ; but B. re- voked his submission. In an action on the case for sueh revocation, it was held that A. was entitled to recover as well the costs in the suit at law, as those tiuder the sub- mission; both of which, as stated in the declaration, amounting to more than seventy dollars, gave the superior court jurisdiction of the cause. 4 SUPREME COURT OF ERRORS. H9 of trespass upon the statute, for cutting trees, against j unef jsos. the defendant, pending in the superior court, by appeal R^TEY of the defendant from a judgment in favour of the plain- v. tiff, for 60 dollars damages and costs; that it was mu- tually agreed by the parties that the action should be called out, and submitted to the arbitrament and final determination of wisher Miller, Matthew Gristvold, and Isaac Sfiencer, esquires, and that the costs which had arisen, and should arise thereon, should be decided ac- cording to law, and upon the same principles as if the action had proceeded before, and been determined by, the court and jury ; that it was also agreed, that a sub- mission in writing to this effect should be drawn and executed by the parties, and that the arbitration should be held at some future convenient time, at a place spe- cified; that soon afterwards, the plaintiff called out the arbitrators, who met at that place, and took upon them- selves the burden of an award in the premises ; that the plaintiff attended with his witnesses and counsel; and that the defendant then refused to sign any sub- mission, and revoked the powers before given to the arbitrators, assigning no other reason than that the sta- tute of limitations had run against the trespasses com- plained of. The declaration then stated that the costs which had arisen in the action at law amounted to 50 dollars, and those under the submission, including the arbitrators' fees, to forty- five dollars; and concluded by alleging damages to the amount of 200 dollars. The plaintiff obtained a verdict for fifty-six dollars, and costs. The defendant moved in arrest of judgment, for that, 1. So much of the declaration as related to the action of trespass in the county court, the appeal therefrom, and costs arisen thereon in the snfierioT tourty was insufficient; 2. The costs under the submis- sion, including the nrbitrato'V fees, did net :MO:' CASES DETERMINED IN THE June, 1808. lo a sum sufficient to give the superior court juris - diction ' This motion was overruled, and judgment rendered for the plaintiff. E. Hunting tan and Gould, for the plaintiff in error. The general question, which arises in this case, is, whether the superior court had jurisdiction? In personal actions, the rule of damages, which determines the ju- risdiction of the court, is derived from the statement of facts in the declaration, and is not given by the formal demand in the conclusion. To such rule of da- mages the court and jury are bound to adhere : a de- parture from it will be error. Tyler v. Marsh, 1 Day, 1. Now, if it appears from the declaration, that the jury cannot give more than seventy dollars, the superior court has not jurisdiction. This is an action on the case for revoking a submis- sion to arbitrament. The rule of damages must be the expenses to which the plaintiff was subjected by such revocation. The plaintiff has stated those expen- ses at forty-five dollars only. But it is said, that the costs in the antecedent suit make up the requisite amount. We contend, that such costs cannot be re- covered in this action. This position, which, if well founded, makes an end of the case, is supported by Wetmore v. Lyman, in error, 2 Root, 484. That was an action on an arbitration note. The subject of the sub- mission was a suit in the superior court, in favour of Wetir.ore against Lyman, which, at the time of submis- sion, it was agreed should be called out. Wetmore af- terwards revoked, and the suit proceeded to trial. The plaintiff in the action for the revocation offered to prove the loss of time and expenses, to which he was sub- SUPREME COURT OF ERRORS. jected in the trial of the cause. The defendant ob- j ime> igo jected to this evidence; but it was admitted by the jt^7^ county court; and a bill of exceptions being filed, a v - YOUNO. writ of error was brought in the superior court. T. he judgment was reversed, on the ground, that the plaintiff was entitled to recover damages only for the trouble and expense he had been put to in preparing for the arbitration ; or, in other words, that the damages ought to be only such as were direct and immediate, arising from the submission and revocation. It may be objected, that special averments as to the particular items of cost accrued, are immaterial and im- pertinent, and may be rejected as surplusage: And that the jury, therefore, would be at liberty, on this declara- tion, to give more than seventy dollars for aught that appears; since more than that sum is demanded. We answer, that the rule holds only as to impertinent^ i. e. foreign averments; not to those which are merely im- material. The party declaring is bound by the latter, and they cannot be rejected, since they enter into the description of his cause of action. Savage, q. r., v. Smith, 2 DL Rep. 1101. Bristow v. Wright et al. Doug. 665. Williamson v. Allison, 2 East, 446. The averments in queston, if unnecessary, are not impertinent; as they explain the manner in which, and the extent to which, the plaintiff has been damnified. Daggctt and Hosiner, for the defendant in error. It is clear beyond a question, that the demand of the plaintiff before the superior courr, to have conferred jurisdiction, must have surmounted seventy dollars. It is likewise undisputed, that two hundred dollars were demanded as damages. To counteract the force of this explicit demand, it becomes indispensably necessary to show, that the averments in the declaration were re Vol.. Ill H YOUNG. CASES DETERMINED IN THE June, 1808. strictive of damages, and precluded the legal possibility R of recovering more than seventy dollars. This has been attempted. It is averred, that the costs of the superior court, anterior to the submission, amounted to fifty dol- lars only, and those accruing under the submission, to forty-five dollars. The latter sum, it is admitted, was recoverable; but it is contended, that the former was not. The argument of the defendant below is to this effect. The damages to which the plaintiff is entitled are those, and only those, which result necessarily, or by direct consequence, from the act of revocation. But the only necessary and direct damages thus resulting, are the costs under the submission, that is, forty-five dollars. The minor proposition is denied ; and on its validity depends this branch of the argument. It must be constantly remembered, and the defendant below seems to have forgotten, that the submission was made while the action was depending, and of the costs that had arisen. The revocation necessarily frustrated the recovery of the costs. The damage is inevitable, and derived exclusively from the revocation. The trespass is not affected by this act; this cause of action remains; and the law furnishes the means of vindicating it. Not so regarding the costs. The direct and necessary con- sequence of the revocation, then, was to utterly obstruct the recovery of the costs attending the action of tres- pass; and a damage was thereby constituted, which the present action alone can redress. The same result will arise, when we view the subject in a light somewhat different. Every express contract, which does not contain a stipulated sum, is accompanied by this implied engagement, that the violator of it shall be subjected to the reasonable damages, derived from his unjustifiable act. But the reasonable damages at- tending the act of revocation above mentioned, comprise not only the costs under the submission, but those which SUPREME COURT OF ERRORS. 123 had arisen in court; and to recover which (with the da- J llne t808 - mages) was the great inducement to the submission. ROWLEY He who denies that the costs of court are reasonable YOUNG damages, must be prepared to legalize fraud, and var- nish moral turpitude. For unquestionably it is fraudu- lent and dishonest, to induce the withdrawal of an action, on a promise to refer it to arbitration, and, having ob- tained this object, to refuse compliance with the assump- tion, and the payment of the existing costs. Vide Domat on Interest and Damages. The jurisdiction of the su- perior court, then, is established beyond all objection. If the costs of the court constituted no part of the da- mages, it is satisfactorily clear that the court below had jurisdiction. The argument against it proceeds exclusively on this ground, that the allegations relative to the costs under the submission are material aver- ments, from which the proof may not be permitted to vary. But this cannot be admitted. On the contrary, they are not merely unnecessary, but impertinent, and to be regarded as surplusage. Their utter nullity in every view, will not be denied, if their impertinence is clearly established. What, then, is an impertinent averment? It is one foreign to the cause, and which may be struck out, without impairing the declaration- It is said by Justice Lawrence, " if the whole of an aver- ment may be struck out, without destroying the plain- tiff's right of action, it is not necessary to prove it; but otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action." J''.unt, 452. The above definition and remark are sup- ported by all the cases on this subject. In Bristow v. Wright, Doug. 642., Lord Mansfield observes, " that where the declaration contains impertinent matter fo- reign to the cause, and which the master, on reference to him, would strike out, that will be rejected by the t, and nred not be proved. But if the very ground CASES DETERMINED IN THE June, 1808. of the action is misstated, that will be fatal." The same P r " ic ip le i s adopted in Pefifdn v. Solomons, 5 Term Refi. 496., and the application of it in the former case vindi- cated. Then follows the case of Williamson v. Allison^ East, 446. This was an action on the warranty of a quantity of claret; and it was needlessly superadded, that the warranty was made fraudulently and deceitfully. The fraud was not proved ; but the warranty was past dispute. The contest was, whether the averment of the fraud might be considered as impertinent, and of this opinion was the whole court. " If the whole aver- ment respecting the defendant's knowledge of the unfit- ness of the wine for exportation were struck out, (said Lord JLllenboroughJ) the declaration would still be suffi- cient to entitle the plaintiff to recover upon the breach of the warranty proved." The principle, then, is this, that an averment in the declaration, which may be ex- punged without touching the gist of the action, is mere surplusage, and to be received as if it had no existence. What more rational than this ? Had there been no rule on this subject, or one of an opposite tenor, it was, nevertheless, competent for the court to adopt that mode of practice, which best would facilitate and sub- serve the administration of justice. See Robinson v. Bland, 2 Burr. 1077. This, then, is the simple point of inquiry, on which the argument depends ; what is the specific character of the allegations relative to the costs under the submis- sion? Were they necessary? It is not pretended. Were they proper, or usual, or compatible with cleri- cal skill or correctness ? The assertion, no person will dare to hazard. May they not be struck out without im- pairing the cause of action in the slightest degree pos- sible ? Unquestionably they may. Then, they are im- pertinent; and if so, they may be expunged by the court, or, according to the practice in such cases, passed over, SUPREME COURT OF ERRORS. 125 as if they had not existed. The basis of the argument June, 1808. we have combatted, being altogether imaginary, we it OWLEY trust the superstructure will be viewed as equally fal- YOUNG lacious. BY THE COURT, SWIFT, TRUMBULL, SMITH and BALD- WIN, Js. dissenting. The cost, which arose in prose- cuting the action at law, before the submission, and the cost which arose after the submission, as claimed in this action, amount to a sufficient sum to bring this case within the jurisdiction of the su/ierior court. And if the plaintiff can recover for both these claims, the de- cision was right. It has been long settled, that the cost arising under the submission may be recovered in this form ; and we are of opinion, that the claim for the antecedent cost rests on the same principle. The cost in both cases arose in preparing the case for trial, and must have followed the award. And whether it arose under the submission, or whilst the case was depending in court, and was sent to the arbitrators by the submission, can- not change the nature of the claim, or vary the injury done to the party by the revocation. It would be mani- festly unjust, to allow a party to induce his opponent, under the faith of a submission, to give up his claim for cost before the court, and to incur a new expense, and then deprive him of this claim by a revocation. Judgment affirmed. CASES DETERMINED IN THE , 1808. JEREMIAH BURDEN against ABRAHAM SKINNER Innn action of MOTION for a new trial. covenant a- gainst a mas- ter, frr send- This was an action upon the covenants of an inden- p"rentice out ture, dated the 31st day of March, 1792; by which the tn ' paVcIu^- plaintiff bound his son, Jeremiah Burden, jun. to the dence is ad- defendant and his wife, to serve them from the age of inissible, on ,,.'-. r the plea of eight years until he should arrive to the age of twenty - prmC'tha^'the <> ne - The defendant, on his part, covenanted to teach plaintiff con- ^ c hiid to read, write, keep accounts, and also the art sented t the * act. of husbandry. The declaration alleged, that the defend- ant did not teach the apprentice to read, write, and the art of husbandry, Sec.; but in violation of his covenants, and contrary to the mind and will of the plaintiff, on or about the 1st of Afiril, 1796, the defendant transported the said Jeremiah Burden, jun. beyond the seas, out of the territory and limits of this state, and the United States, to the West Indies, from whence he has never returned. The defendant pleaded not guilty. At the trial, the plaintiff founded his right of action, solely, upon the defendant's sending the apprentice to the West Indies. And the defendant offered a witness to prove, that before and at the time of sending the boy to the West Indies, the plaintiff consented, and agreed with the defendant thereto, and that the boy himself consented, and was desirous of going. To the admis- sion of which testimony, the counsel for the plaintiff objected ; and the court, before whom the issue was tried, ruled that the testimony was not admissible ; and a verdict was found for the plaintiff. On motion for a new trial, the question, as to the admission of 5 SUPREME COURT OF ERRORS. 127 this testimony, was reserved for the opinion of the nine June, 1808. judges. B SKI.NXER. Goodrich and Brace, in support or the motion. There can be but two objections: That parol testi- mony cannot be admitted at all; and that it cannot be admitted under this issue. 1. It is contended, that no parol testimony can be admitted. The evidence offered went to show that there was no breach of the covenant ; nothing incon- sistent with the duties of the master to the servant; nothing but what was approved by the father. Had the boy gone home to spend the holidays with his parents, by the consent of his master, and at the request of his father, the father surely could not reco- ver for a breach of the covenant. If a sheriff takes a bond that one shall abide a faith- ful prisoner, and afterwards permits him to leave the prison, can the sheriff recover upon the bond ? Or if one covenants to build a house, and finish it in a par- ticular manner, and the plaintiff afterwards directs it to be finished in a different mariner, can he then recover because his directions have been obeyed ? And in this case, can the father claim to recover, for an act done by his own consent? But this act is not inconsistent with the covenant. The defendant agrees to teach the boy certain things, und for this he has ample time. But for the sake of the health, or in compliance with the wishes, of the ap- prentice, he permits him to go to the West Indies, during this time. The act is usual in many parts of our country, and might have been absolutely necc^ 128 CASES DETERMINED IN THE June, 1808. And if the act is not inconsistent with the terms of the BURDEN covenant, evidence that the plaintiff consented to that v - act cannot impugn, or vary, the written contract. In Ratclijf v. Pemberton, 1 Esfi. Cos. 35., which was an action of covenant on a charter party, for demurrage of the vessel ; Lord Kenyan held, that the license and agreement of the plaintiff, to extend the time for discharging the cargo, was a legal defence, although the time was fixed by the covenant. In the suit against Barry^ cited by the chief justice, in Littler v. Holland, 3 Term Refi. 592. the evidence was not admitted, because the parties had expressly contracted, that the license should be in writing, recog- nising the principle, that such a license would have been a defence, had not this particular stipulation been made. The plaintiff has also stated, in this declaration, that this act was contrary to his mind and will. He having made that allegation, we surely may be permit- ted to show that it is not true. 2. But the only real difficulty must be, whether this license or consent, can be given in evidence under the general issue. It certainly is pertinent to this issue, because it goes to show that there is no breach of the covenant ; that the defendant has done no wrong act ; and is, therefore, not guilty. The consent of the plaintiff is not an act whereby the defendant is saved, or acquitted, from the plaintiff's demand; and which, therefore, must be pleaded; but it is an act which existed prior to any demand the plaintiff could have had, and in fact shows that he never could have had a demand. The acts referred to in our statute,(a) are acts which go to debar a recovery (a) Stat. Conn. tit. 129. s. 4. SUPREME COURT OF ERRORS. 129 for a claim once constituting a good cause of action. June, 1808. Thus, accord and satisfaction must be pleaded, as it BURDEN admits a pre-existing claim; but a license to cut timber v - need not be pleaded to an action of trespass, because it shows that the party was not a trespasser. In Littler v. Holland, the evidence was not admitted, because it did not comport with the facts stated in the declaration. But even if this ought to have been pleaded, as this is a motion for a new trial, intended to bring up the whole case, not subject to the technical niceties of bills of exceptions, the court will see that substantial jus- tice is done. Ingersoll, contra. The great question is, whether the defendant can prove by fiarol, that the plaintiff consented to the act done by the defendant. The general rule, that parol evidence is not to control a covenant, or any written contract, is not denied. If there had been a parol agreement at the time of entering into this cove- nant, similar to that claimed to have been afterwards made, it surely could not have been admitted to vary the covenant. Can it, then, make any difference, that it was made at a subsequent time ? If one gives a note payable in sixty days, and the payee afterwards agrees by parol to wait sixty days longer, this agreement will not be admitted in evidence any sooner than if it had been made at the time the note was given. No parol agreement made at any time, as to the subject matter of a written contract, may be proved. Littler v. Holland, 3 Term Rep. 590., was an action f covenant, by the terms of which, the plaintiff under- took to build two houses for the defendant, by the 1st f jtpril, 1788; and the defendant to pay 500/., allejjinp- VOL. IR. S CASES DETERMINED IN THE June, 1808. that they were built according to agreement, and that BURDEN the defendant had not paid. It appeared, that the houses v. were not built at that time ; but that the parties, by a SKINNER. , , , , ,, subsequent parol agreement, had enlarged the time. Justice Heath refused to permit the plaintiff to prove this fact; and Lord Kenyan thought the case so clear, that he refused a rule to show cause why a new trial should not be granted. In Harry's case, it does not appear whether this point was considered, as there was another sufficient objection. As to the opinion given by Lord Kenyan^ in Ratdiff v. Pcmberton, so far as it respects the license being a defence, it was not a point before him; and was there- fore a mere obiter dictum. But upon th other point; (w'z.) that the fact ought to have been specially pleaded, that case is directly in point. Although our statute per- mits almost every thing to be given in evidence under the general issue; yet it expressly excepts " a dis- charge from the plaintiff, or his accord, or some other special matter, whereby the defendant, by the act of the plaintiff, is saved or acquitted from the plaintiff's demand in the declaration." Tit. 129. $ 4. Here, the defence rests solely upon the act of the plaintiff, by which the defendant attempts to shelter himself from the demand. It is, therefore, exactly with- in the statute. And as this motion is for a new trial for excluding evidence, and not for mispleading, it can- not prevail, if the evidence ought not to have been ad- mitted upon the issue joined. BY THE COURT, REEVE and EDMOND, Js. dissenting. A parol agreement cannot be given in evidence to dis- charge a breach of a written contract; but it may be given in evidence to show that there never was a breach. In this case, the evidence offered would serve SUPREME COURT OF ERRORS. 131 to show, that in consequence of the license and con- June, 1808. sent of the father, there never was a breach; and is, R ~~ EN therefore, proper and pertinent to the issue, and ought *. to have been admitted. New trial to be granted. ABKL KNAPP against EZRA LOCKWOOD. MOTION for a new trial. The statute tit. 88. c. I. authorizing This was an action of trover for a promissory note. the selectmen to take into The conversion was laid on the 21st of June, 1806; and their care and custody the the suit was brought in November, 1806. persons ami property of persons likely The defendant pleaded not guilty ; and on the trial, u> be reduced , , e .... to want, hy the delence was, that he took the note in question, with idleness, mis- the rest of the plaintiff's property, as agent of the se- JJ**)}^.. Icctmen of the town of Stamford, by virtue of the sta- bamlry, must . . . have a strict tute authorizing the selectmen to take into their care construction, and custody the persons and property of such as by *" p^f l lctly idleness, mismanagement or bad husbandry, are likely Therefore, where the to be reduced to want. Tit. 88. C. 1. selectmen, ha- ving taken the property of The plaintiff attempted to meet this defence, by * h j e " ori _ f showing that the selectmen, in their proceedings, had tion.negiected to set up a not conformed to the provisions of the statute referred certificnte of to; and that, therefore, they had no right to retain the Sd'V'mTj plaintiff's property. >" d Io mill-dam and appurtenances, to the amount of more than one thousand dollars. That the said James and Lois were unable to defray their proportion of the ex- pense of such repairs ; and that, at their request, the same was paid by the petitioner, to the amount of about four hundred dollars; and in consideration thereof, on or about the first day of November, 1800, the petitioner, and the said Lois and James, mutually covenanted and agreed, that for the consideration of five hundred dol- lars, to be paid in manner as was then stipulated, the said James and Lois would convey by a good and suffi- cient deed, their half of the aforesaid mill, with the privileges and appurtenances, to the petitioner. And that, from the sum of five hundred dollars should be deducted the sum advanced by the petitioner, for re- pairs, on their account; and the remainder, if any, as stated in the bill. That in pursuance of this contract, the said Lois and James delivered possession of the mill and appurtenances to the petitioner, for him to use, oc- cupy M\d-imfirove as his own; and to receive all the rents and profits from and after the aforesaid first day of No- vember, 1800. That in pursuance of the contract, he took possession of the moiety of the mill, and has ever since used the same, receiving the profits, by their con- sent; and has made extensive repairs, at his own cost, in expectation of the fulfilment of the contract on the part of Downey. That the petitioner has ever been ready to receive the deed, according to the terms of the contract; and on or about the first day of February, 1802, and at other times, requested Downey and his wife to fulfil the contract. That on or about the 14th day of February last, John Nichols, of Waterbury, in Neiv-ffa- ven county, well knowing all the facts aforesaid, and contriving and intending to defraud the petitioner, and make gain to himself, applied to the said James and SUPREME COURT OF ERRORS. 141 i*) and persuaded them to refuse to execute their June, 1808. contract with the petitioner, and to convey their half of HQTCHKISS the mill and appurtenances to him the said Nichols; v - and on the same 14th day of February, the said James and Lois did execute a deed of the same to the said Nichols, by force of which he has ever since claimed, and still claims, the same, and threatens suits therefore. That the petitioner has ever been ready to fulfil the contract on his part. That he has never received pay- ment of the sums advanced by him, as aforesaid, but the same are now wholly due; and the said James and Lois are insolvent, and unable to pay the same. And that the value of the aforesaid moiety of the mill was, and now is, five hundred dollars; praying for relief," &c- Dotoney and his wife were defaulted. Nichols pleaded, that the facts set forth in the petition were not true. The court found that those facts were (rue; and that, during the pendency of the petition, Downey and his wife, in pursuance of their contract, made, executed and delivered to the petitioner, a conveyance of their moiety of the mill and appurtenances, and settled the account stated in the petition. Upon which Nichols was enjoined against using the deed of Downey and his wife to him, in support of his claim to the mill, under a p< nulty of two thousand dollars. The court charged the jury, that this decree was con- clusive evidence of all the facts therein adjudicatc-d be- tween Hotchkiss and Nichols; particularly, that at the time Nichols took the deed from Dowry urul his \\ifr, Hotchkixs was in possession, claiming (ilk-: ;md thnt thi*> was known by Nichols. Rule to show cause why a w.w trud should not IK granted was obtained; and the <|ue6i< 142 CASES DETERMINED IN THE June, 1808. Ingersoll and Stafiles, in support of the motion, con- HOTCHKISS tended, that the decree was not admissible evidence; V. NICHOLS. 1. Because the decree and the suit at law were not between the same parties. Sutler's N. P. 232. Peake'f Ev. 68. Gilb. 24, 25. 2. The state is a party to the suit; and a part of the penalty recovered goes to the benefit of the state. The action, therefore, stands on the same giound with a criminal prosecution ; but a verdict, or decree, in a civil action, is never given in evidence in a ciiminal case. 3. The facts found by the decree ought to be material and necessary to support the decree, in order that this may be given in evidence in another suit. That Mchols knew that Hotchkiss was in possession of the land, was not essential to support the decree. But it is absolutely necessary, that this fact should be proved, in order to subject the defendant in this suit. Daggett and Nathan Smith) contra. 1. The parties to the decree and this suit, are vir- tually the same. Downey and wife, though made parties to the bill, were yet not parties to the decree; having complied with the demands of the petition before judg- ment. Though the name of the state is used in connection with that of Medad Hotchkiss^ he alone is the effective party. He can control the suit ; his confessions may be admitted as evidence ; and he, alone, is liable for costs. The reason why a verdict may not be given in evi- dence against one who was not a party, is, that he had no opportunity to controvert the facts, on which it was 4 SUPREME COURT OF ERRORS. 143 founded. This reason is not applicable to the present June, isos. case; for Nichols was a party to the bill iu chancery, HOT~HKISS and to the decree. v - NICHOLS. 2. The facts of Hotchkiss's possession, and of the knowledge of Nichols, were put in issue by the defend- ant's plea to the bill, and found by the decree. IVhate- ley v. Menhdm, 2 Esfi. 608. Autram \. Aforewood, 3 East, 346. 3. Tl e decree, if admissible, is conclusive as to the facts found. Pcake, 34. Esfi. Dig. 758. And it is no objection, in this case, that a part of the penalty to be recovered, is for the benefit of the public. Atcheson v. Everitt, Coiufi. 382. BY THE COURT. The question in this case is, whe- ther the decree in chancery is conclusive evidence of the fact, that Nichols knew, at the time of taking the deed from Downey and his wife, that Hotchkiss was in possession of the land? On examining the decree, it appears that the fact, to prove which the decree was offered, and which appears 4 in the terms of the decree, to have been found by the couit, was not material in that case; and, although found, cannot be considered as put in issue on the bill in chancery. Without determining, therefore, whether the decree of a court of chancery is evidence of the material facts found by the decree, in a suit between the same parties, regarding other rights; or whether such decree can be evidence of such facts, in an action for a penalty, it is sufficient to say, that this decree could not be evidence, in this case, for the purpose for which it was admitted. The court, therefore, advise a new trial. New trial to be granted. 144 CASES DETERMINED IN THE June, 1S08. JAMES PHELPS against ABIGAIL ELLSWORTH, Widow, and MARTIN ELLSWORTH and others, Heirs of the late OLIVER ELLSWORTH, Esq. A writ of er- ERROR to reverse a decree of the sufierior court, ror cannot be Li-ought by on a bill in which the Hon. Oliver Ellsworth was plain- severaT 117 re- **&' ant * James Phelfls and others, respondents. apondents to a bill in chan- , eery, against The defendants in error pleaded in abatement, that crce'has^ee'n Chauncey Goodrich, Esther Eno, Hezekiah Eno and Elijah passed; but Grzswo/rf, were parties to the petition, decree and re- all must join. cord, complained of; and that this writ was brought by James Phelps only. The plaintiffs in error demurred. Goodrich, for the defendants in error. Ingersoll and Edwards, for plaintiff in error. BY THE COURT, unanimously. The plea in abatement is sufficient. Writ of error abated. SUPREME COURT OF ERRORS. 145 June, 1808. STILES NICHOLS against EDEN RUGGLES and EDWARD M. HOLLY. MOTION for a new trial. A contract to reprint any literary work This was an action of book debt ; and among other in violation of a copyright charges in the plaintiff 's account, there was- one of 262 secured to a dollars and 9 cents, for printing part of a book entitled ! s hi ^ J. er8 a " d ' The Federal Calculator." It was proved, and admit- the printer who executes ted by the parties, that before June, 1804, when the such contract, printing was done, one Daniel Haivlcy had obtained the |*lL e a j- n the exclusive copyright of the book, as author, throughout rights of such third person, the United States. He had lodged the title with the can recover clerk of the district court for Connecticut, as the law Jjjjjjf forhis directs; and hud assigned his copyright to one Penny- man^ with the exclusive privilege of printing and vend- sions of the ing the book in this state. Since that time, the plaintiff requinn'^The had printed the same book in Danbury. in this state, au^'^'or pro- prietor to pub- for which printing, the charge above mentioned was lish the title made. There was no evidence that Haivley had ever newspaper", published in any of the papers of the United States, that an . () t() trHlls - . mil a copy 01 he had obtained the copyright ; nor, that he had ever the work it- r . self to the sec- deposited a copy ot the book in the office of the secre- retary of state, tary of state of the United States. The controverted " rc niere| y di- rectory, and facts in the case were, that the plaintiff, before he did constitute no . , part of the the printing, knew that the copyright had been secured essential re- by Haviley, and assigned to Pe nnyman ; and that, though g^cm-ii^ ^. the printing was done in Connecticut, it was with a view copyright, only for the defendants to vend the copies in JVeto- Jersey. The presiding judge, in charging the jury, instructed them, that it was the opinion of the court, that if they found that the plaintiff hud such knowledge, the contract was illegal, and no recovery could be had for that charge. Vet. III. U 146 CASES DETERMINED IN THE June, 1808. The jury found a verdict for the defendant; and the NICHOLS Plaintiff moved for a new trial, on the ground of a mis- direction. This motion was reserved for the opinion of llUOGLES. . the nine judges. Previous to the argument, it was suggested by the counsel for the defendants, that Haivley, under whom Pennyman claimed, had secured the copyright of the work in question, previous to the year 1802, so that, in this case, no question could arise under the act of con- gress made in that year, and to take effect January 1st, 1803.; vol. 6. 1 14. a fact, which, though it did not appear upon the statement in the motion, would appear from the minutes of the judges who sat on the trial of this case at the circuit; to which, Judges Reeve, Edmond, and Gnsivc/ld assented. Edwards and J. Law, in support of the motion. 1. The first ground on which this motion for a new trial is founded, is, that for the printing Nichols ought to have recovered of Ruggles and Holly, who employed him, though it be admitted that the copyright was in Pennyman, and that in executing the printing, Nichols might have made himself liable to Pennyman. There must be something immoral in an act, in order to render it an illegal consideration for the support of a contract. The reasons why an undertaking against law is void, are, first, because the mind cannot be supposed to have given its free consent to act against duty ; secondly, be- cause the law will not permit the performance of that which it has forbidden ; nor, consequently, allow the con- tractor to require that performance. Poiv. Con. 165. The immorality of the act constituting the considera- tion, is expressly the first reason why the contract is void, and upon examination it will be found, that the second v,-ill in no instance hold, except where the breach SUPREME COURT OF ERRORS. 147 of the law, against which the act is committed, involves j une , isos. in it some immorality. There are a variety of positive jf ICHOLS laws, respecting: which, it is said by Blackstone^ that v. RUCOLES. " the alternative is offered to every man, either to ab- stain from this, or submit to such a penalty ;" and the same author observes, that " conscience is no farther concerned than by directing a submission to the penalty." 1 Bl. Com. 58. Not burying the dead in woollen, and not performing statute work on the public road, &c. are contrary to the law of England; yet " conscience," says the author before cited, is only concerned to submit to the penalty, if levied. Will it be contended, that no act done in contravention of such laws can furnish a legal consideration for a contract? Suppose that a man, instead of working on the public roads, should perform some important business for an employer; could he be denied all possibility of recovery for his services ? We contend to the contrary, and insist, that contracts which may involve a disobedience to such laws, are, notwith- standing, legal and binding ; for that, the reasons do not exist, for which certain contracts are pronounced Illegal. There is, in such cases, no breach of duty, nor docs the law, by any prohibition of the act, take away the power of the contractor to fulfil his agreement. The prohibition is not absolute, but only sub modo. Abstain from this, or submit to the penalty, is the alter- native offered by the law. And in case of contracts made under such circumstances, whoever is to do that which the law has thus conditionally prohibited, must be supposed to have voluntarily submitted himself to the penalty. In the present case, admitting that Pennyman had done all that was necessary, in order to secure the copy- right to himself, we contend, that the law which secures to him the exclusive privilege of printing and vending, a* thf! same time offers to rvrrv man the alternative of CASES DETERMINED IN THE June, 1808. abstaining from infringing that privilege, or of subtnit- ~ ~ LS ting to the penalty prescribed. Nichols, the printer, had in this case, to make his election, whether he would forbear to print, or subject himself to the penalty. There is nothing in the printing malum in se, nor is there in it any breach of law, in which the conscience is concerned; therefore, the undertaking to print, and the undertaking to pay, are binding upon the parties. The penalty prescribed by the law on this subject, is the only guard which was intended to be given for the security of authors and their assignees ; nor does sound policy require any other. JWcAo/*, therefore, having elected to print for Buggies and Holly, and to incur the risk of the penalty which might be recovered by Penny- man, did, having executed the printing for his employ- ers, thereby acquire an equitable and legal right to re- cover for his services. 2. The present motion, therefore, is grounded on the fact, that Haivley had not complied with the requisites of the statute, having omitted to give notice in some public newspaper, that he had purchased the copy- right. This notice, given in one or more papers in the United States, is, as we contend, a condition, with- out a compliance with which, no exclusive privilege can be claimed. It does not appear that Haivley has complied with this condition; therefore, neither he, nor Pennyman, his assignee, is vested with the exclusive right of printing and vending the book in question. 3. It does not appear, that either Haivley or Penny- man are citizens of, or residents in, the United States; and by the statute, citizens or residents only can be en- titled to the privileges therein prescribed. 4. Though the plaintiff knew of the assignment to Pennyman, and that Hait'ley had obtained the copyright. SUPREME COURT OF ERRORS. 149 it does not follow, that Nichols might not have had June, 1808. license from Pennyman to print; nor, that there might NICHOLS not have been a second assignment, either to Nichols, GG ' LE8 or some other person, from whom license might have been obtained. 5. Nichols was employed by persons who owned the copyright for the state of New- Jersey, and the copies were there to be disposed of. The printing, under such circumstances, was not any infringement of Pennyman't privilege. 6. It is by statute made the duty of him who obtains a copyright, to lodge a copy of the work with the secretary of state for the United States, though not ex- pressly made a condition sine qua non. How is a com- pliance with that duty to be enforced, unless by making the security of his privilege depend upon the perform- ance of it ? 7. Nichols, to be barred of a recovery, should have known that the printing was unlawful. He might well suppose that he had a right to print for Ruggles and Holly, when the copies were to be sold in New-Jersey. He may be considered in the light of an officer, who has taken goods, which were pointed out to him, on a promise of indemnification. The promise to indemnify is binding, though the. taking of the goods may have been unlawful. 1 Poiv. Con. 178. Gould and Hatch, contra. The question, which arises upon this motion is, whether the contract between Nichols and the defend- ants is an undertaking illegal in such a sense as to render it void. We insist, that the printing was at the same time a civil injury, and a public offence; a civil injury, as being an infringement of the pro- 150 CASES DETERMINED IN THE June, 1808. prietor's copyright, and a public offence, as incur- NICHOLS ring the forfeitures of the act of congress " for the Ruaei.1 encouragement of learning," cc. (Vide Laws of U. S. A. vol. 1. p. 118.) If it be either a private wrong, or a crime, the contract of which it is the consideration is void. The general rule of law, that an engagement to do a thing in itself unlawful binds not, will not be questioned. Poio. Con. 164. 1 Esfi.Dig. 88. So, if the consideration, upon which a promise is made, be unlawful, the pro- mise itself is void, although it be for the performance of an act perfectly indifferent. P.otv. Con. 176.; Butler's .V. P. 206. As in the case of Webb v. Bishop where two boxed for a wager of five guineas, and on assumfisit brought by the winner for that sum, the action was held not to lie, the consideration of the promise being a breach of the peace. Esfi. Dig. 88. It is, then, a cor- rect rule, that where the undertaking is upon an unlaw- ful consideration, or for the performance of a thing un- lawful, the contract is void. And it makes no differ- ence, whether the act to be done be malum in se, or only malum firohibitum. Pom. Con. 165., and cases there cited. Ketchum v. Scribner, 1 /?oof, 95. So, that there is no foundation for the position assumed by the counsel in support of the motion, that in order to render an agreement illegal, the act stipulated for must be immoral in itself. It is argued, however, that one may lawfully under- take for the performance of an act Avhich amounts merely to a private wrong, and that such performance may be a good consideration to support an assumfisit. But it is the unlawfulness of the thing to be done, rather than its criminality in legal consideration, that takes away the obligation to performance. ) Pow. Con. 164. SUPREME COURT OF ERRORS. 151 Every act, which is prohibited by law, is unlawful, whe- June, 1808. ther it be a public wrong, or merely a civil injury. NICHOLS V. RUGGLES. Powell adds elsewhere, that " if a man will take a bond, or other security, to be saved harmless of suffer- ing one to escape, 8cc., or, if he do such a tresfiass, these contracts, upon the same principle, will be void." Poio. Con. 197. Here a contract to procure the commission of a private wrong is placed on the same footing as one to induce the perpetration of a public offence. There is, besides, one entire class of cases, in which the principle for which we contend is fully recognised, viz. cases of contracts, or agreements in fraud of third persons : those are void, both at law and in equity. A great variety of cases and authorities might be cited, showing the intent and application of this rule ; but it is deemed sufficient to refer the court to Parsons \. Thom- son , 1 BL Refi. 322. Holland v. Palmer, 1 Bos. & Pull. 95. WHlia v. Baldwin, Doug. 433. Jackson v. Quchaire, 3 Term Refi. 551. Poiv. Con. 165. 176. It cannot surely be claimed, that there is any intrinsic quality in fraud, in the light in which we are now viewing it, by which it is distinguished from any other private injury. It is not more strictly prohibited than a trespass to the per- son or property. Several cases have been put by the counsel in sup- port of the motion, not analogous. Suppose I employ one, who is a subject of military duty, to labour for me on a day of military review, cannot he recover for the services rendered? Suppose the servant of A., in per- forming the labour assigned him, be necessarily guilty of a trespass, by passing the close of B.; will not the la- bour done be a good consideration to support an assumfi- tit? The answer is obvious. The consideration of the promise in the first case is not the crime, nor, in the 152 CASES DETERMINED IN THE June, 1808. second, the tort committed, but, in each, the services rendered. NICHOLS V. I. Whether the printing in question was a private wrong, will be determined by inquiring whether the copyright of the book belonged to the assignee of Haw- ley. The printing was undoubtedly an evasion of that right, admitting it to have existed. On the part of the defendants, it is claimed, that Pennyman had an exclusive right to the book which was printed, on two grounds, viz. first, at common law i and, secondly, under the statute. First, the author of any literary work had, by the com mon law, an exclusive right to the copy, both before and after publication; and this right is not limited or impaired by the act of congress made for the encourage- ment of learning, &c. Millar v. Taylor, 4 Burr. 2303. Donaldsons v. Becket and others. Ibid. 2408. 2 BL Com. 411., and Christian's note, p. 576. It has, indeed, been holden, that the statute 8 Ann. c. 19. has limited or abridged the common law in this particular. In that statute is a clause, expressly provi- ding, " that the author and his assignees shall have the sole liberty of printing and reprinting his works, for the term of fourteen years, and no longer.'* In the statute of the United States, which was made at a time when the phraseology in this clause had received a judicial construc- tion, and which, in many of its provisions, is substan- tially a transcript of the English statute, this limitation is wholly omitted. Was it, then, the intention of the legislature of the United States to abrogate the common law right of authors ? It was, for a long time, held doubt- ful in Great Britain, whether even the statute 8 Ann. had this effect. It was a question, on which the ablest SUPREME COURT OF ERRORS. judges- differed. Not a single clause or expression can Junej j 808 be pointed out, from which it can be inferred that such NICHOLS was the intent of the framers of our statute. " Where v. the common law and a statute differ, (says Judge Black- stone,) the common law gives place to the statute; and an old statute gives place to a new one. But this is to be understood only when the latter statute is couched in negative terms, or where its matter is so clearly re- pugnant, that it necessarily implies a negative." 1 Bl. Com. 89, 90. The matter of our statute is not even claimed to be thus repugnant to the common law. The statute merely secures the right of authors for a term, or terms, under a new sanction, and gives a new reme- dy for the violation of it. The statute of this state " for detecting and punishing trespasses" does as much, and might as well be construed to abrogate the common law. Secondly, but should the opinion of the court be against the defendants upon the question, as to the com- mon law right, still it is insisted, that Haioley, and of course Pennyman, had acquired a perfect title to the copy, under the act of congress. The first section of the statute explicitly provides, that the author, &c. shall have the sole right and liberty of printing, &cc. for the term of fourteen years from the recording the title, Sec. in the clerk's office of the district court. To this provision in our statute may be applied what Justice Yatca said in the case of Miller v. Taylor, of a similar clause in the statute of Anne. 8 Ann. c. 19. s. I. By this clause, a sole right is posi- tively vested in the author, during the particular terms, which the statute has limited. The subsequent provi- sions have, indeed, annexed penalties, and forfeitures of the sheets; but the right is wholly confined to the par- ties interested, the author and purchasers of copie* VOL. HI. X 154 CASES DETERMINED IN THE June, 1808. To the author, therefore, it is the same as a lease, a NICHOLS S rant or an 7 other common law right, whilst the term exists, and will equally entitle him to all common law RUGCLES. remedies for the enjoyment of that right. 4 Burr. 2360. The 3d section makes it an express condition, on which any person is to take benefit of the statute, that the copy of the title be deposited in the office of the district clerk, before publication. In the case now be- fore the court, this condition has been complied with. Why, then, has not a title been acquired ? It is said, that a copy of the district clerk's record has not been published in any newspaper, nor a copy of the book delivered to the secretary of state, agreeably to the requirements of the statute. These acts, it is con- tended, are in the nature of conditions precedent; so that a right to any literary work under the statute cannot be acquired, except by performing them. The 4th sec- tion and the last clause of the 3d are relied on, as for- tifying this position. Upon these clauses, it would perhaps be sufficient to remark, that they are merely directory, and that neither the language in which they are couched, nor their con- nection with the body of the statute, authorizes the con- elusion which they are cited to support. Indeed, as we have before seen, the author's right vests, at the time of depositing the title in the clerk's office; and it is nowhere expressed, that this right shall be devested by any act or omission whatever. Besides, the publica- tion of the clerk's record, in the newspaper, may be at any time within two months from the date thereof; and the delivering of a copy to the secretary of state, at any time within six months from the publication of the book. la the mean time, the author's right is vested; his term has SUPREME COURT OF ERRORS. 15* commenced. What, then, is his situation? Has he no June, 1808. remedy for an invasion of his right ? NICHOLS V. RUGGLES. It would surely be going too far to say that he has not; the case would suppose a wrong without a re- medy. In perfect conformity to these ideas have been the decisions of courts, and the opinions of lawyers, in Great Britain. Thus, though it is there made necessary, by the statute of jinne, in all cases, before publication, to enter the title of a book in the register's book of the company of stationers ;(a) and though it is expressly provided that no one shall be made liable to the fienalty where this is not done, yet, in such cases, it is well settled that an action may be brought, or an injunction obtained in a court of equity, against any one who vio- lates the right of an author. 1 Bl. Refi. 330. 2 Bl. Com. Christian's note, 578. 4 Burr. 2380, 2381. Indeed, in this point, it is believed, a doubt cannot be enter- tained. 2. But, we contend further, that the printing which A~iL/iol.i claims to have done, was a crime, inasmuch as it incurred the forfeitures of the statute. The clause in which the forfeiture is prescribed, is in these words. Here the counsel read the second section down to the words " shall forfeit " &c. inclusively.] Here it is ob- servable, that not the most distant allusion is made to the lodging of a copy in the office of the secretary of state, as a condition on which the forfeitures are given. But the statute does speak of publishing the clerk's re- cord ; it prescribes the forfeiture to be incurred by those persons who infringe an author's right, after the record- () By * late statute, it is required, that the whole book, and every \olume thereof, hr lo^ed M above mentioned. &tat. 15 firr,. III. c 156 June, t808. in g tne title ' &c> ^ /^/zsAzni* the same. The expres- . sions here used have been thought to countenance the fttCHOLS v. idea, that at least, the publishing a copy of the clerk's RUGCLBS. recor( j, is an indispensable condition. But if we look back to the first section, to which the phrase " publish* ing the same as aforesaid," must refer, we shall find, that the only case in which publishing the record is made necessary, is where second terms are sought to be se- cured. The right of an author is to be protected for % further term, provided he not only record his title a se- cond time, but publish the record, as is elsewhere di- rected. This, then, is the publishing, of which the statute here speaks. The clause which prescribes the forfeiture is general, and meant to embrace each of the cases, in which a copyright is supposed to be secured, viz. cases both of first and second terms. Publishing the record is made necessary, as we have seen, in one class of these cases ; and hence this language, in the 2d section, came necessarily to be used. If this reasoning be correct, the printing, by Nichols, incurred the forfeitures of the statute, and was, of course, a crime. But other questions have been raised in the course of the argument, some of which were not expected to be agitated here; because they were not supposed to arise out of the allegations in the motion, or the facts that came out upon the trial at the circuit. 1. It is said that it does not appear whether Penny- man, or Haivley, be a citizen of the United States, or resident within the same, or that Nichols, in printing, might not have acted under a license, or authority derived from the proprietor. To these suggestions, it SUPREME COURT OF ERRORS. is sufficient to answer, that the motion does not allege June, 1808. any misdirection on these points, as a cause for a new NICHOLS trial; nor was there, in fact, any. The statement in , v - KUGGLES. the motion cannot be supposed to present a complete history of the case; but it will be intended to be so far perfect, as to raise every question meant to be tried. 2. It is also urged that the printing was lawful, be- cause, though done here, the books were to have been sold in New-Jersey. To this point is cited the case of Hudson if Good-win v. Patten y 1 Root, 133. This was an action brought upon the statute of this state, and the only question raised in the case was, whether vend- ing in Connecticut, under the circumstances, was a vio lation of the right of the plaintiffs. The court held that it was, and accepted the verdict on that ground. This case is in point to shew that the penalties of the statute are incurred, by the bare act of vending; and, consequently, by the bare act of printing. It esta- blishes, therefore, precisely, the negative of the pro- position which it is cited to support. And that print- ing alone incurs the forfeitures of the statute, is settled by the plainest language, and by a long course of uni- form decisions. 3. But it is said further, that Nichols might not have known that the printing was unlawful; and an attempt is made to assimilate his case to that of a sheriff, who levies an execution upon property supposed to belong, but not in fact belonging, to the debtor, by direction of the creditor, under a promise of indemnification. The two cases, however, arc distinguishable in this material point, viz. that in one case, ignorance of fact is sup- posed; in the other, ignorance of law merely. The sheriff is ignorant that the articles levied on are the property of a stranger; Nichols is found by the jury, under the direction of tho court, to havr had know- 158 CASES DETERMINED IN THE June, 1808. ledge of all the facts, which went to prove the right of NICHOLS Penny-man. The ignorance assumed in his justification v - is, therefore, a mere ignorance of law. No case can TtWGGl.ES. be found in the books, where a bond or promise of in- demnity to the sheriff, for a wilful trespass, has been holden good. By THE COURT, SWIFT and SMITH, Js. dissenting. A contract to reprint any literary work, the copyright to which has been secured to the author, is void, unless it is entered into with the consent of the author, or his assignee. And the printer who executes the contract with a knowledge of the rights of the author, can reco- ver nothing for his labour. The provisions of the statute, which require the author to publish the title of his book in a newspaper, and to deliver a copy of the work itself to the secretary of state, are merely directory, and constitute no part of the essential requisites for securing the copyright. The publication in the newspaper is intended as legal notice of the rights secured to the author, but cannot be ne- cessary, where actual notice is brought home to the party, as in this case. The copy to be delivered to the secretary of state, appears to be designed for public purposes, and has no connection with the copyright. Nor can the intent with which the work is reprinted, be taken into consideration, as the act of reprinting is expressly prohibited by the statute. And as it appears in this case, that the plaintiff reprinted the " Federal Calculator" after the copyright had been secured, and with actual notice of the fact, he could recover nothing on that account, and the charge of the court to the jury was correct. New trial not to be granted. SUPREME COURT OF ERRORS. 159 June, 1808 DAVID BEEKS against Moss K. BOTSFORD, and the rest of the Inhabitants of the Town of NEWTOWN. MOTION for a new trial. In in debitatm assumpsit for mL c j i > money paid to I his was an action ol indebitatus assumfisit. t j, e "defend- ants' use, the The plaintiff declared, that on the 24th of October, 1791, Elijah Abel, Esq. sheriff of Fairjield county, had an exe- execution had ' been issued a- cution in his hands, directed to him, in favour of the gainst the de- c ., \ r t r Fendanls, in- treasurer ot this state, against the defendants, for taxes habitants of due to the state, amounting to more than 2,000 dollars, H'? town r 01 J\ieTvtown, for which, on the 15th of December following, he levied on taxes; that r .!-. , property liatl the property ot the plaintiff, who was then an inhabitant been taken of JVe-wcown. That thereupon the plaintiff, with Abram JJ^JJ' 11 ' fje Baldwin^ David Booth, and Zalmon Booth, also inhabitants plaintiff had ... given his re- ot Jvewiown, executed their receipt to the sheriff, en- oeipt; and thai gaging to deliver said property, at the expiration of I|I lcncc twenty days, at the sign-post, that the same might be of he na l been eventu- sold on said execution: That said property not being ailycompelieil delivered accordingly, an action was afterwards instituted ^onev^n M- by the sheriff, on the receipt, and a judgment recovered ^/action of said (axe*. At thereon for 612/. 8*. 11 l-4rf. damages, and 51. 3s. 3d. the trial, evi. costs, for which execution issued: That this execution produced^of remained unpaid, and said tuxes uncancelled by the de- an .execution against the co/- fendants, until the 1st of January^ 1806, when the plain- lector. Held, tiff, at the special instance and request of the defendants, n( ', ut material paid to the sheriff the sum of 2,OoO dollars, in satisfac- variance. tion of said taxes and the lust-mentioned execution. The issuing The declaration then concluded in the common form of by the trca- indebitatus anumfisit. 8Urer of . lhe itale against the inhabi- The defendants pleaded nnn aatum/isfrunt ; and the Unts of , R town may be plaintiff obtained a verdict. The defendants then moved proved by pa- rol. It is unnecessary to prove the existence of dittrett agninit the collector, Ir\ < I'-r to let in procf t one against the lelectiBen CASES DETERMINED IN THE June, 1808. the court to set aside the verdict, and grant them a new trial, on the following grounds : BOTSFORD. j rp hat on tlie tr - al) tne defendants proved, by a copy of the receipt, that the execution on which the property mentioned in the declaration was taken, was an execu- tion " against Abram Baldwin, collector of state taxes for said 'Newtown." The plaintiff" then offered the de- position of Elijah Abel, the sheriff, to prove that the execution on which said property was taken and re- ceipted, was not, in fact, an execution against Bald-win, but was an execution against the town of Neivtoiun. To this evidence the defendants objected; but the court ad- mitted it. 2. That on the trial, the plaintiff also offered in evi- dence an execution against the selectmen of the town of JVewtown. To this the defendants objected, and claimed, that an execution against Baldwin, the collector, ought first to be produced. The court overruled the objection ; and said execution against the selectmen was admitted, without the production of any execution against the col- lector. 3. That on the trial, the plaintiff also offered parol evidence to prove that an execution had issued against the town of Neivtoivn, and that the same was lost, or mislaid, without proving, by record evidence, that such execution had issued; to which the defendants objected ; but the court overruled the objection, and admitted the evidence offered. 4. That the court mistook the law in their charge to the jury: First, because the presiding judge directed the jury to find a verdict for the plaintiff, if they should find th'e receipt was, in fact, given for property taken on an execution against said town, and the amouflt paid SUPREME COURT OF ERRORS- by the plaintiff: Secondly, because his honour instruct- June, 1808. ed them that it was immaterial whether the property nTHs taken, and receipted by the plaintiff, was property be- v. BOTSFORTD. longing to the plaintiff, or to said town, provided they found that the plaintiff had received no indemnity from such property, but had been compelled to pay the ex- ecution with his own money : And, thirdly, because his honour also instructed the jury, that though it ap- peared in evidence, that Zalmon Booth, one of the re- ceiptmen, had paid a part of the execution as well as the plaintiff, it was not necessary for the plaintiff to have joined him as a party in the suit ; and that each who had paid, might sue separately. The several questions arising on the above state- ment, were reserved for the opinion of the nine judges. Gould, in support of the motion. 1. The plaintiff has stated, as the ground of his reco- very, that he has given a receipt of property, and has ultimately paid money on an execution against the (own of Netotoion. From the face of the receipt given in, evidence, it appeared that the execution was against Abram Baldwin, collector. There is, then, a variance between the declaration and the evidence. Is not this a material variance, and of course fatal? If the execution was against the town, the plaintiff's remedy is against the town ; but if the execution was against the collector, then the money was paid for the collector's use, and the plaintiff must look to the collector for his recom- pense. Suppose I sue A. for money paid on his note to ft.; and the tudrnce produced is of money paid on the defendant's note to C. is my declaration supported? But that is a case less strong than the principal one; for in that, the right person would be sued, but in this, '.. \ . '.' .'"'. ~ ni. AY*. 1 in]., T!T V 16 2 CASES DETERMINED IN THE June, 1808. and Bristoiv v. Wright et al., Doug. 665., are in point, jj . Where special grounds of action are stated in the de- claration, no other ground can be taken at the trial. BOTSFORD. 2. Another ground for the motion is, that an execu- tion was admitted in evidence against the selectmen, before any was shown against the collector. The statute tit. 135. c. 1. s. 4. provides, that if the collector shall neglect to pay over to the treasurer, and settle with him for the tax, the treasurer shall issue a distress against such collector. Sect. 5. directs, that in case of a return of non est inventus, or a commitment of the collector, the treasurer shall issue a distress against the goods or estate of the selectmen. Now, if no distress had been issued against the collector, or if one had been issued and had been returned satisfied, clear it is, that the treasurer would not be authorized to issue one against the selectmen, and if he attempted to do so, his act would be irregular and nugatory. The execution against the collector should have been produced for another reason. Because, if it should appear to have been re- turned sati.\fitd) the collector, and not the plaintiff, would be entitled to recover against the town. It would show, that the money paid by the plaintiff was not paid for the use of the town. 3. The court mistook the law in admitting parol evi- dence that an execution had issued against the town. The issuing of an execution can only be proved by the record. The loss of an execution may, indeed, be pro- ved by parol; but it would be absurd to receive such proof, until it had been shown, by proper evidence, that one had been issued. 4. The last ground of the motion was concisely stated. !mt not relied upon. SUPREME COURT OF ERRORS, 163 jDag-gett, contra. June, 1 808. BEERS 1. Though there was, in fact, a literal variance be- v - BOTiFORD. tween the declaration and the receipt given in evidence, yet we contend that this was wholly unimportant, as the allegation which it was offered to prove might be rejected as surplusage. This was an action of indebi- tatus ax&umfiftit for money paid, laid out and expended to the defendants' use. To entitle himself to a reco- very, it was only necessary for the plaiatiff to show that he had been compelled to pay money for the benefit of the defendants, and with their consent. The tnode in which he was compelled to pay was immaterial. The doctrine of Savage v. Smith, and Brintoio v. Wright, has been overruled by the sufireme court of the United States, in the case of Wilson v. Codman's Executor, 3 Crunch, 209. In De Forest v. Brainer,d 2 Day, 528., there was in fact a variance between the declaration and the proof; but the court held, notwithstanding, that the declaration was supported. [SWIFT, J. In that case, the court did not consider themselves as departing from the principle of Bristoiv v. Wright* They considered a continuance of the party in office as equivalent to an afifiointment. TRUMBULL, J. agreed in this explanation.] The property of the defendant was taken to satisfy an execution against j-lbrum ftaldioin, the collector. It was also taken to satisfy an execution against the select- men. There can be but one satisfaction. The satis- faction of one is the satisfaction of the other. Property taken to satisfy one is taken to satisfy the other. Then: was, then, substantially, no variance, admitting that the allegation in question was one which it I to prove: sf> that /) l'\T<-nt v. Brtiinrrtl* as rxpl/ 'U an UIU'MU'HV in our favour 164 CASES DETERMINED IN THE June, 1S08. 2 - It was not necessary for the plaintiff" to produce an B execution against the collector, because that against the v. selectmen counts upon an execution previously issued, and returned, against the collector. The execution against the selectmen, of itself, proves an execution. against the collector. But \ve contend, that it was not necessary 'for the plaintiff to prove any thing more than an execution against the town. It is enough for an officer to show his execution. Can more be required of him who has paid it ? 3. A very satisfactory answer may be given to the third objection, -viz. that no record is kept by the trea- surer of the issuing of a distress, or execution. He is not a recording officer. A certificate of the treasurer is not evidence: or, if so, as it is not a record, nor an exemplification of a record, it is still Jiarol. In the last place, we contend that if all these points are against us, the case is such that no new trial will be granted. The plaintiff has paid his money, and he must have it reimbursed. The court and jury have come to a right result. Substantial justice has been done. The court will not grant a new trial, for a mistake in point of law, against the honesty and equity of the cause. Smith v. Page, 2 Salk. 644. Ueerly \. The Duchess of Mazarine, 2 Salk. 646. Gould was heard at length in reply. BY THE CouRT.(a) By the statute entitled " An act providing for the collection and payment of rates and (o) MITCHELL, Cli. J. having an estate in Newtonon subject to tax- ation, and KDMOND, J. being an inhabitant of that town, declined pitting in this cause. SUPREME COURT OF ERRORS. 165 tpxes," it is enacted, that on neglect of a collector, the June, 1808. treasurer shall issue a distress or warrant against him, BEERS for the amount due; on return of -that unsatisfied, he Bo *' shall issue a distress against the goods, &c. of the se- lectmen ; and on return of that unsatisfied, he shall issue a distress for the sum due, and all chargrs, against the goods and chattels of the inhabitants of the town; and the several towns are made responsible for the full amount of their proportion of the state taxes. By the statute, then, the treasurer issues the several warrants or executions in succession, without the inter- ference of any court. Of course, record evidence does not exist that all or either have issued. The proof rests wholly in parol. From the nature of the case, none other could exist. The minutes of the treasurer, if he made any, must be shown by parol. It was proper, then, to admit the parol evidence offered, respecting the. issuing, the levy, and the loss of the executions in ques- tion. And proof that an execution had issued against the town was, at least, firimd facie evidence that an execution had previously issued against the collector, and against the selectmen. This is substantially an action to recover money ad- vanced by the plaintiff, at the request, and to the use of the defendants. More is evidently stated in the de- claration than was necessary. To entitle the plaintiff to a recovery, it must, indeed, appear, that the execution which was levied, and which he paid, was in fact an ex- ecution against the town. The evidence of this fact is opposed, on the part of the defendants, by the receipt uf tin: property on an i-xeciuimi agaiiist the collector. Yet, as the existence of an execution against the lowi, presupposes an uncancclled exeeution against the col- lector, and that la- is ( vnitually responsible for the whole; it i* pobiille the v:. . direction to the jury on this point, we perceive nothing improper; nor do we conceive it could affect the right of the plaintiff to recover, whether the property re- ceipted was originally his, or belonged to the town, pro- vided it appeared he was not indemnified out of the property. And though others may have advanced mo- ney to the town on the same execution, the contract of indemnity is several as well as joint. We are, therefore, of opinion, that the direction to the jury on the several points stated was legal and proper ; and the facts thus submitted to their consider- ation were the material facts alleged ; and being found, are sufficient to show the right of the plaintiff to re- cover. New trial not to be granted. WILLIAM HILLHOUSK against LEVI CHESTER. The ii;axira MOTION for a new trial. seisina facit itipitem has never been a- This was an action of ejectment for a valuable real tfopied in this state; but on estate in Mont-vitte. the death of the ancestor, the descent is cast upon the heir, without any reference to the actual seisin of such ancestor. By the statute of distributions, previous to the revision in 1784, real and personal property were placed upon the same footing; and the term " ?iext of kin'' had the same meaning, whether used with reference to one or the other. When used with reference o real estate, it never meant those only of the blood of the Jirst purchaser. SUPREME COURT OF ERRORS. 167 At the trial, the general issue being pleaded, the June, tROS. jury, pursuant to the direction of the court, found a HjlLHOusE verdict for the defendant. CHESTER. The plaintiff moved for a new trial. The case, as it appeared at the trial, and as stated in the motion, was as follows: The Rev. James Hillhouse, being seised of the premises, died in 1740, leaving two sons, of whom the plaintiff is one, and a daughter, Rachel. The pre- mises were set off to her, as her share of her father's estate. In 1753 she was married to Joseph Chester. They had issue a daughter, Mary, in 1754. Rachel died soon after the birth of Mary. Mary died in 1765, without issue, under the age of twelve years. Josefih Chester, on his marriage, became seised in right of his wife ; and, on the birth of Mary, as tenant by the cur- tesy. In January, 1801, he conveyed the premises to the defendant, and died in August, 1804. On his death, the defendant entered, and remains in possession. The plaintiff claimed title as heir, and next of kin of the blood of the ancestor from whom the estate came. Daggctt and IV. Hillhouse, for the plaintiff. 1. We contend, that Mary Chester was never seised of this estate so that a title can bu derived from her. The common law maxim, that seisina facit stifiitem^ which has been recognised by every jurist from the author of I' let a to Blackutonc, is decisive against the de- fendant's chini. This seisin implies not merely a right to enter, but an actual entry. The ancestor must have had a seisin in dad; for if he had a seisin in law only, it is Tiot suflkuMit to transmit his estate to his heir. flcta, 1. t> :!t. 11. b. 15. a. //. //. C. L. -.!!. 2 III. Com. 209. Hut Mury was not seised, nor '1 could !>'; for all the tini-- during her life, the CASES DETERMINED IN THE June, 1808. the curtesy. But if the defendant cannot derive a title HILI.HOUSE fr m M ar \l'> he has none. He does not claim to be heir to Rachel. CHKBTKR. 2. But however this point may be decided, we con- tend, in the next place, that by the statute under which this descent was cast, real estate derived from an ances- tor is to descend to those only, who are of the blood of that ancestor. Conveyances and grants of lands, with us, are, and always have been, to the grantee, and to his heirs and assigns, for ever. These terms, which have been im- memorially adopted, and sanctioned by the law, desig- nate the extent of the tenure. To his assigns, implies a power of disposition; and, to his heirs, is a guaranty of the property (if hot disposed of) to those who stand in the relation of heirs to the purchaser, or patentee. There have been different opinions respecting the origin of these rights ; some have considered them merely as of positive institution. " But this opinion," says Judge Swift, (Sijst. vol. 1. 232, 235.) " cannot be well founded; for when a man has acquired an exclusive right to a cer- tain thing, and added to the value of it by his own la- bour, it is consonant to nature that he should determine who should enjoy the property, which he can enjoy no longer. And in case of his dying without a will, that his estate should descend to his nearest relations." It is a truth, attested by the concurrent feelings of man- kind, that every person has a natural right to dispose of the estate he has acquired ; and that, on his decease, without manifesting his intentions, it should descend to relatives, in preference to strangers; arising, not merely from the presumption that such would be the wish of the acquirer, but from the mutual obligations of kindred. SUPREME COURT OF ERRORS. 169 The property in question descended from the Rev. June, isos. James Hillhouse, (the father of the plaintiff,) who was HU.LHOUSE the first purchaser; between whom and Josefih Chester. or the defendant, there never was the least affinity of blood whatever. And yet the defendant claims, that this estate came to him, or to Josefih Chester, by descent. Strange doctrine of descents ! If such, indeed, be the rule, it must be different from any known in the free and established systems of ancient or modern jurispru- dence. The following are extracts from Sir William Jones's translation " of the speeches of I-steus, concerning the succession to property in Athens" " All genuine, unadopted citizens may devise, provi- ded they have no legitimate children, and be not disabled by lunacy, Sec. nor under duress. " The wills of such as have legitimate sons shall stand good, if such sons die before their age of sixteen years. If a man have legitimate daughters, he may de- vise, on condition that the devisees take them in mar- riage. Adopted sons shall not devise the property ac- quired by adoption; but if they have legitimate sonsj they may return to their natural family. If they do not return, the estates shall go to the heirs of those who adopted them. " No adoption by a man, who has legitimate sons born, shall be valid. " If a citizen die intestate, and leave daughters, the nearest kinsmen, who marry them, shall inherit; but if he die childless, his brothers by the same father, shall be his heirs. Males, and the children of males, shall be preferred, although in a remoter degree, provided TFT. *r. 170 CASES DETERMINED IN THE June, 1808. they belong to the same branch," Stc. H. H. C. L. 2. 81. note. Hi 1. 1. HOUSE V. ER< In a preceding part of the same note, it is said, that those who married the daughters (under the last of the foregoing clauses) should not have the estate, unless the daughters were living: so that they took the estate merely in right of their wives. They were likewise to be the nearest kinsmen of the intestate. The savings that the brothers should be " by the same father," and that the males who inherited should " belong to the same branch," show, that the blood was regarded, and that the half blood could not inherit, unless they belonged to the same branch; that is, were of the blood. Their regard for the blood is further evinced by their restricting the power of devising; the object and effect of which was to keep the estate in the blood: and by the provi- sions that the devisees should marry the daughters of the devisor; and if those who came in by adoption did not return, the estate should go to the heirs of those who adopted them. In a subsequent note, (p. 83.) respect- ing the Roman or civil law, it is observed: " The suc- cession to the estates of intestates, was one of the most uncertain points of the Roman law. The distribution which had for some time prevailed, took a different turn, and that even while the emperor was compiling his body of laws; for the system of the novels (the CXV1II. particularly) defeats the doctrine laid down in several of the titles of the third book of the Institutes, where the point was considered and meant to be esta- blished." This uncertainty arose, and will always arise, from arbitrary power. After the abolition of the consular, and the introduction of the imperial government, everything depe ded on the will, or edict of a despotic and often depraved head. A singular feature in this system was. SUPREME COURT OF ERRORS, that the parents, or either of them, took the estate j un e, 1808. equally with the brothers and sisters of the deceased , * tt I 1. L H O U SI We shall not be surprised at this, but rather that the pa- v - rents did not take the whole, when we are told, that by the law of the twelve tables, fathers had the power of life and death over their children, and might sell them. As this rule speaks of the succession of both parents, it must refer to property acquired, and not coming to the child by descent. Another rule in the same code (as laid down 2 H. H. C. L. 87.) providing that where there were no brothers and sisters, ex urrisgue fiarenti- bus conjuncti, nor any of. their imtuedi tte descendants, the half-blood should succeed, undoubtedly applied to property fin reflated or acquired; for the terms ex utrisque Jiarentibus conjuncti, imply a reference to, and preference of blood. " According to the laws of Normandy " says Sir A/. Hale, (H. C. L. c. 11.) "if lands descended from the part of the father, they could never resort, by descent, to the line of the nmther. But in case of pur- chases by the son, who died without issue, for want of heirs of the part of the father, it descended to the heirs of the part of the mother." Respecting the rule, that "fratres consanguinei, ex codem fiatre, sed diversa matre, shall take by descent, together with the brothers, ex utro many respects, be consi- dered as a general law, to regulate the civil, as well as the moral conduct of mankind, has been the opinion of 5 SUPREME COURT OF ERRORS. 175 many respectable writers, as well as of Coke, that source June, isos. and fountain of legal science. When any principle, HIL.LHO'USB contained in that code, does not originate from the pe- v v H ES T F R culiar situation and economy of the Jewish nation, it ought, from the authority of the divine lawgiver, to have a leading influence. As the rule of descent here no- ticed did not originate from any political considerations, it must have resulted from natural fitness and pro- priety. Although our former statutes, as well as the statute in question, made use of the term next of kin, which is nearly similar to the term used in the English statute; yet we are not to suppose, that the framers of our sta- tute were ignorant of the import of the term when ap- plied to the rights of inheritance. It was probably adopted because it was in analogy to the divine rule. This is corroborated by the provision, which allotted a double portion to the eldest son, in which the two tables compare; and where the statute rule was confessedly taken from the scripture. The presumption of this conformity is further corroborated by the known vene- ration of our ancestors for the divine code. This ap- peared in all their legislative and judicial proceedings; and is acknowledged by an express statute, commonly called the Declaration of Rights: which, in the revision of 1750, and in all the previous revisions, was the first statute in the book. By this, it is enacted, " That no man's goods or estate shall be taken away from him, or any way cndamaged, unless it be by virtue or equity of some express law ; or in case of the defect of such law in any particular case, by some clear and plain rule war- ranted by the word of GOD." This is an explicit recog- nition of the authority of the divine law, which is ac- knowledged as the law paramount, in all questions of difficulty or of doubt, urisimr tVoni >h< rlffert of any par- 176 CASES DETERMINED IN THE June, 1S08. If from the foregoing reasoning, and from what may HILLHOUSE h erea f ter oe submitted, the court are of opinion, that v - the two tables can be reconciled, and that next of kin, (o H K S T C R and his kinnman -who is next to him of his family, may receive the construction given by Coke, and which is here given, the result must be in favour of the plaintiff. In 6 Mod. 143., it is said, " If a statute makes use of a term, it shall receive the same sense that the common law takes it in, and no other," or " it shall be under- stood in the same sense in which it is understood at common law." It is likewise a rule, that in construing a statute, the subject matter respecting which it is con- versant is to be taken into consideration. It becomes, then, important more particularly to inquire the legal import and meaning of next of kin, when applied to the rights of inheritance. Coke, in 3 Refi. 40., before noticed, considers " his kinsman who is next to him of his family," and next of kin, as having the same signification, when applied to the same subject matter. In Ruffhead and Morgan's edition of the New Law Diet. tit. Descent, the rule is thus given: " He which is next of kin in the collateral line of the whole blood, though never so remote, comes in by descent; for there is next of kin by right of representation, and by right of propinquity or nearness of blood." Referring to Sir M. Hole's argument in Collingwood v. Pace, 1 Vent. 415.> and to Radcliffe's case, 3 Refi. 40. Again, from Bacon's Elements " Lands descend, if there be no brother or sister, to the uncle and his issue; and if there be none such, then to the cousins in the nearest degree of consan.-> guinity." The last, rule, where it is said, Lands descend to SUPREME COURT OF ERRORS. 177 the cousins in the nearest degree of consanguinity" is J un e, 1808. like the term used in the statute without any qualifica- H ILLHOUSE tion; and yet it has always been construed to mean cou- sins 111 the nearest degree of consanguinity of the blood of the ancestor. Blackstone, in detailing the rules of descent, (2 Com. 224.) suys, ' The collateral heir of the person last seised must be his next collateral kinsman of the whole blood." Littleton^ 1 Inst. 10., is thus: " Et si home fiur chase terres en fee-simfile, et devy sans issue, cheschun (jue est prochtin cosin collateral, del entire sanke^ de quel filuis long degree qu'it soit t /wet inheriter et aver meme la terre come heire a luy" " And if a man purchase land in fee-simple, and die without issue, he which is next cousin collateral of the whole blood, how 'far soever he be from him in degree, may inherit and have the land as heir to him." Here Coke makes the following comment: " Upon this word firochein (next) I put this case. One hath issue two sons A. and /?., and dieth: /?. hath issue two sous, C. and D., and dieth : C., the eldest son hath issue, and dieth: .4 purclu-.seth lands in fee- simple* and dieth without issue. I), is the next cousin, and yet shall not inherit, but the issue of C.; for he that is inheritable, is accounted in law next of blood. And then fore, here is understood a division of next viz. next jure rg/iretentationi*, and next jure firofiini;:g, and to be synonymous terms, when thus ap- plied. i * Other precedents might be adduced. Indeed this ie the meaning affixed to those terms by all common law writers on descents. Rtfttring to the rights of inherit- ance, then, next of kin has acquired a technical and appropriate signification; and mrans, and did at the time of enacting the statute in question, mean, next of kin-) or next of blood inheritable. " To know what the common law was (we are told) before the making of a statute, is the very lock and key to open the windows of a statute." " The best construction of a statute is to construe it as near the rule and reason of the common law as may be." * { When the provision of a statute is general, it is subject to the control and order the common law." 4 *c. Akr. 647. SUPREME COURT OF ERRORS. 179 By knowing what the common law was, and by June, 1808. taking its rule and reason for our guide, we are fur- HILLHOUSE nished with the lock and key to open the windows of v - CHESTER. the statute in question: and shall be enabled to discover why the term next of kin has one signification, when applied to the descent of real estates, and another, when applied to the division of chattels. Personal estate is never considered with reference to any but the imme- diate possessor. The terms antiquum out nwum are not applicable to this description of property: and the same rules, both here and in Great Britain, prevail respect- ing it, whether acquired by purchase, or in any other way. It cannot be pleaded, without delivering posses- sion: nor is it a subject of limitationi or remainder. ' A man (says Cokr) cannot be heir to goods or chattels." And according to Fearne. 342., even a devise of a term of years to A. and his heirs, goes to his executor. A variety of instances too may be put, in which words re- ceive a construction according to the subject matter. To say of A. he ,stole, would be a charge of feloniously taking, if it referred to taking any thing personal: but if to any thing annexed to the freehold, it would be merely a charge of trespass. A gift of lands to A. and the heirs of his body, is an estate-tail to the one who is heir. A gift by deed to A. and the issue of his body, to A. and his seed, to A. and his children, to A. and his offspring, give only an estate for life: but the same terms in a will give an estate in fee or in tail. 2 Bl, Com. 115. If a devise is made of lands, and the devisees no otherwise designated tl.an by the tc-im Acira, where thry must take by purchase, the eldest, or youngest, or all the sons or children will take- respectively, accord- ing to the tenure by which the burl i* hohlen. * % I give," < deed, when applied t chattels, it a gift for ever: igo CASES DETERMINED IN THE June, 1808. but " I give my farm," though in the same instrument, transfers only a life estate. We shall, therefore, have no controversy with the gentlemen respecting th-J English statute, nor with re- spect to our statute as far as it relates to personal estate. Nor shall we controvert the authorities which they ad- duce, the rules t.nd principles of which apply to the same subject. We agree, with regard to any chattel in- terest, next of kin means next jure firofiinquitatia ; and refers to the last possessor, and him only; but with re- ference to descents, it means by right of representa- tion and of blood: and is the same, as if the statute had said to the nt-xt of kin, who, according to the rules of law, and right of blood, is capable of inheriting. Cote, in the pnssage before quoted, says that next cousin, or next of blood, (and which hfe construes the same as next of kin,} when applied to estates by pur- chase, have relation to the propinquity merely: whereas when applied to estates by descent, they refer to the line or blood, and mean next of blood inheritable. It is hardly possible, that the rule of construction should be conveyed in language more precise and positive; and which, if not wholly disregarded, must end the contro- versy; as the reason for the distinction will be still more obvious when these terms are applied to the di- vision of chattels, or to the descent of estates of inherit- ance. Whether Joseph Chester, or the defendant, is to claim, the effect would be the same; as neither have, or ever had, any affinity of blood to the Rev. James Hillhouse, the common ancestor, or Rachael Chester, the last of the blood actually seised; and their relationship to Mary Chester was merely by the blood of Joscfih Chester : and as he had no inheritable blood, he could take nothing by SUPREME COURT OF ERRORS. 181 it himself; nor would he transmit any inheritable quality June, 1808. to the defendant. The same rule of construction, which IIlLI.HOUSE Would take this estate from the family of the Rev. James \. Hillhouae, would take it from that of Joseph Chester. Merely marrying into a family, and having issue, and the death of the inheriting parent, and of such issue, would entitle the person so marrying, and his connections, to the inheritance. This would be a new mode of acqui- ring estates; inheritances would be unsettled, and made to dance the roundelay from family to family, by figures totally inconsistent with the established rules of descent: the leading doctrine of which is, that estates of inherit- ance shall descend to those, and to those only, who are of the blood of the first purchaser. This right of trans- mitting estates to the heirs of the blood, has always been considered as one of the most important privileges of the English law. Sir Matthew Hale calls this right one of the cafiitula legum. After the introduction of the feudal system into En- gland, there was a constant struggle to establish the rights of inheritance; and to preserve estates in the blood. The lord claimed to bestow the feud without any reference to these rights; and various burdens were imposed on heirs, by way of heriots, fines, reliefs, 8cc. in consideration of their being admitted. These, says Hale, (H. C. L. c. 1 1. note D.) were continued even after feuds became hcreditaiy. He adds, " Though grunts wre construed strictly, yet if not otherwise expressed, col- laterals succeeded; because it was conceived merit of blood was part of the consideration." Though the work of reformation was gradual in En- glandi it was finally completed ; and the various op- prt"- .!( s were abolished, and changed for the aocage u-nuiv by 12 Cur. II. c. 24. ; "A statute," says Blackgtone, (2 Comm. 77.) " which was a greater acqui- CASES DETERMINED IN THE June, 1808. sition to the civil property of this kingdom than even Magna Charta itself." CHESTER. , . . The partible socage tenure, being that by which we hold, is of great antiquity. This was established among the ancient Britons: which they carried with them- into Wale H) as appears (it is said) by the laws of Hod Dha, in the tenth century. The same prevailed among the an- cient Germans. The Saxons and the Danes also adopted the principle of partible descents. H. H, C. L. c. 11. note R. The author of Bac. Abr. (referring to Somner, speak- ing of gavelkind) says, it was " first introduced by the Roman clergy, and therefore propagated more exten- sively in Kent) where the Christian religion was first pro- pagated." " Socage tenures, says Blackstone^ (2 Com. c. 6.) was always by much the most free and independent of any. And, therefore, I cannot but assent to Mr. Somner's etymology : who derives it from the Saxon appellation soc, which signifies liberty or privilege ; signifying a privileged tenure." " Taking this to be the meaning of the word, it seeitfs probable that socage tenures were the relics of Saxon liberty. This is peculiarly remarkable in the tenure which prevails in Kent, called gavelkind, a species of socage tenure ; the preservation whereof from the innovations of the Norman conqueror is a fact universally known." This, agreeably to Mr. Sdden's opinion, before the JYorman conquest, was the general custom of the realm; and "the most usual course of descent all over England" Such was the attachment to this tenure, that fathers 4 SUPREME COURT OF ERRORS. 183 could make no other distribution. " It is not however June, 1808. certainly known, whether daughters shared with the HILLHOUSE sons in the most ancient times." H. H. C. L. c. 11. Vi CHESTER. note F. This tenure, then, is not of feudal, but of Saxon origin, and was coeval with the introduction of the Christian system ; to the rules of which, respecting de- scents, it bears a strong analogy. Wlu-n we consider the antiquity of the hereditary transmission of lauds, and the unremitting strup-gles by which it has been maintained, we shall not be surprised to find 'it regarded as of the highest importance: and as the principal object of the laws of real property in ./if/; 01 that it should be distinguished as one of the capitula Icgum; and ranked with the sacred right of trial by jury. Our ancestors emigrated to tlrs coun- try, impressed with the same sentiments: nor can we suppose that they would wantonly renounce these rights, and enact laws which would carry the inheritance from the blood. For it would make no differ, nee whether this was done by their own act, or by the overbearing hand of power. Their attachment to these rights does not rest on pre- sumption. They procured them to be expressly pro- vided for, and giuiantied by the chuiter, the palladium of their privileges; the habi-ndum of which is, " To have and to hold the same (meaning the lands gnu. ted) unto i:d governor and company, and their associates, their heirs and assigns ; to be holdcn of us, our heirs, and successors, as of < ur Manor of East Greenwich, in free and common tocage." By the charter there was a concession on the part of the crown, that the patentees should, and by its accept- 184 CASES DETERMINED IN THE June, t808. ance, an agreement on their part, that they and those HIL~HOUSE wno ne '" un der them, would hold according to the c v ; tenure of free and common socage. They could convey by deed, or devise; othetwise, the estate must descend to tliose comipg within the meaning of the term heirs, according to the rules applicable to that tenure, which required that thry should be oi' the blood. On failure of these, the estate would escheat. The crown un- doubtedly mightclaim that (he terms of the grant should be pursued. We have shown, that the socage tenure was partible' in its nature, and whether so or not, in prac- tice, would not effect the rights of the en wn. But that the charter might have been extended by the grantees so as to admit another description of persons not within the terms of the grant to inherit, in exclusion of those who weic entitled, (for such wrulcl he the effect of their construction.) could not, we conceive, be maintained, as the charter is paramount to any statute. Although we are not (since our independence) liable to a forfeiture, still it must have its full operation, and cannot be altered: and a statute as relative to it, must receive the same construction as it would at any time have received Be- sides, the charter contains an express guaranty to the heirs of the right of succession. About 1730, there was an information exhibited to the king and counsel against the colony, by Mr. Win'hrofi^ complaining, that the intestate law was contrary to char- ter, as it contradicted the rule of primogeniture, or unity of descent. Upon which the king and council passed an order vacating the statute ; and a committee was appoint- ed by the house of lords, who reported, among other things, that an act of parliament should be made, requiring that all the laws of the colony should be sent to the king and council for approbation. This occasioned a very serious alarm here; and it was thought prudent, under these circumstances, to consider the intestate law as vacated. SUPREME COURT OF ERRORS. 185 But it was recommended to the courts to continue the j un e, 1808. practice of dividing lands and real estates in common to HII LHOUSE all the children and heirs, which was done. The as- v. CHESTBS* semhly also sent a representation to England, virtually claiming their right to adopt the partible socage tenure, and stating the necessity and advantages of having lands and real estates descend in common to the children, and the injury that must have arisen to the settlement and improvement of the colony, by restricting the descent to one child, or heir. Mr. Winthrop. having settled the matter with his sister, (Mrs. Lechmore,} the business was never pursued any farther in England; and on the next revision of the laws, the statute in question was enacted. (a) The above accounts for the very particular manner in which the distributing clause of this statute is introduced. That real estates were taken entirely from the blood by the statute, formed no part of the above complaint. Had that been one ground, it could not have been answered: and as this formed no part of the charge, we may certainly conclude, that no such construction or practice had ever prevailed. In addition to the provisions of the charter, the act entitled " An act about the tenure of lands" provides, " That whatsoever lands have been, or shall be granted to the respective townships, or to any particular person, or persons, shall be held to them, their heirs, succes- sors, and assigns, for ever, according to the most free tenure of East Greenwich, according to our charter."(A) A subsequent statute (the preamble of which is, that townships' grants of lands may be settled upon them, their heirs, successors, and assigns for ever) directs, (a) This i not strictly correct. Sec Stnt. Cmtn. p. 867. note (13J; Hit. 180S. K. (6} Slat. Conn. ti. 07. c. 1. *. 1. 186 CASES DETERMINED IN THE June, 1808. " that they shall take patents for holding such tracts of lands, to them, their heirs, successors and assigns, firm III \i LH O USE T - and sure, according to the tenure of our charier, in free ER ' and common socage ; which patents shall be sufficient evidence for holding the said lands firm to them, their heirs, 8cc. for ever. "(a) The first of these statutes was passed October, 1672, and the last, October, 1685, and have ever since continued in force. They contain three distinct recognitions of the charter, as the foundation of title ; and four positive provisions, that all grants of lands shall be to the grantees, or paten- tees, their heirs, successors, and assigns, for ever. It must be conceded, that the rights thus secured will enure to the respective heirs of succeeding grantees. This must arise from the very terms of the grant " to their heirs, successors, and assigns, for ever;" from analo- gous rules applied to the statute de donia; and from the circumstance that these statutes were from time to time re-enacted. Our forms of conveyance too, have imme- morially been to the grantees, and to their heirs and assigns for ever. These forms are recognised in the revision of 1750, by " An act concerning the town clerk's office," which provides, that a grant, when re- corded in a particular manner, shall be evidence for holding the premises " to the grantee, his heirs and assigns, for ever."(6) It becomes, then, material to inquire what is meant by the term heirs; to whom the inheritance is thus re- peatedly guarantied. " An heir is he to whom lands, &c. by act of GOD, and right of blood, do descend of some estate of inheritance ; nam Deus hxredem facere potest) non homo" 1 Inst. 7. (a) Slat. Conn, tit. 97. c. (. s. 3. (f>~) Stat- Conn. tit. 162. c. 1. ?. 4. SUPREME COURT OF ERRORS. 187 u Heir and ancestor, heres et antecessor, are always June, 1808. applied to natural persons, predecessor and successor HILLHOUSE to bodies politic." 1 Inat. 78. CHESTER. ** A man, by common law, cannot be heir to goods and chattels; for /neres dicitur ab hareditate" \ Inst. 8. " Vel dicitur ab hxrendo, quia htereditas sibi haret. 1 Inst. 7. *< The word heir implies that the party hath all those legal qualifications which our laws require." 3 New Abr. 17. The author of which [Tit. Descent, C. note a.] observes ' In a long course of time, it being impossi- ble to compute to the first marriage, they therefore computed from the last possessor, provided the heir that claimed was of the blood of the first purchaser." " And note, (says Ld. Cvke,} it is an old and true maxim in the law, that none shall inherit any lands as heir, but only the blood of the first purchaser, for refert u guo Jiat fieryuiuiium" 1 Inst. 12. The term //>, or heirs, then, is an appropriate term ; and those who claim as such, must stand in relation of heirs, in right of representation, and of blood ; particu- larly, they must be of the blood of the first purchaser. The charter provides, and successive statutes enact, that lands shall descend to those who stand in this relation. It is, however, contended, that they descend to a motley de- scription of persons, who, not being of the blood, pos- sess none of the requisite qualities; and whose cha- racteristics arc abhorrent to hereditary succession. Although we have not adopted the statute of the 2 Wat. 13 Edw. 1. c. 1. called the statute de donix, yet the same inquiry will arise in our action of ejectment, as would arise under the writ of tormedon, given by that jgg CASES DETERMINED IN THE June, 1808. statute. If the plaintiff" can show, that he is entitled secundum formam doni, or by the terms of the original 11 I L L H O USE v. grant or charter, he must recover; especially as that, CHESTER. ... or the descent to heirs, is recognised and sanctioned by repeated statutes. " If divers statutes (it is said) relate to the same thing, they all ought to be taken into consideration in constru- ing any one of them." 4 Rep,. 4. 2 Ld. Raym. 1028. In The Earl of Aylesbury v. Patterson, Doug. 30. Lord Mannjield says " All acts in jiari materia are to be taken together, as if they were but one law." The charter, then, these different statutes, and the statute of distributions, must be taken together. Were the latter capable of receiving .the construc- tion for which the defendant's counsel contend, it must be controlled by the former, which uniformly declare, that lands shall descend to the heirs. But we have shown, that next of kin, when applied to descents, means, and has always meant, next of kin of the blood, oi % next of kin inheritable: consequently, this, when thus applied, and the term heirs, are of the same im- port. The charter, and these various statutes, are a con- clusive confirmation of our construction. By this all differences will be reconciled, and the established rules of inheritance preserved. The claim of Joseph Chester to be heir to Mary Chester would contradict another rule of descent, that estates of inheritance cannot lineally ascend. Aside from gravitation, and from feudal policy, there existed at common law, and under our statutes, substantial rea- sons for this rule respecting estates by descent. The estate which came to the child by descent, could SUPREME COURT OF ERRORS. 189 not, in the ordinary course, come from the parent who j un e, isos. survived; but it must come from the parent* or stoak of HILLHQUSE the parent who died during the life of the child. To v - allow the surviving parent to be heir to the child, in thut case, would be to carry such estate from the blood. It is but passing it to the parent, and it is immediately in the hands of strangers. Another reason arises from the situation of the parent, as natural guardian of the child: as no person who may be heir to an infant shall be his guardian in socage. For the law judges it improper to trust the infant in his hands, who may by possibility become his heir. Purchase and descent are the only modes of acquiring estates recognised by law. Purchase, taken in its most extensive sense, is thus defined by Lyttleton: the possession of land, Sec. which a man haih by his own act or agreement; contradistin- guished from acquisition by right of blood, and includes every other mode of coming to an estate. 2 Dl. Com. 241. Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. 2 Bl. Com. 201. We would ask, under which the defendant claims: is it by right of representation as heir of the blood ? We have before seen, that he who claims land by descent, must be of the blood, and that it will escheat be lore it can go to one who is not of the blood of the first purchaser. CASES DETERMINED IN THE June, isns. Descent implies a progressive continuance in the line, or channel in which the thing spoken of has here- IlILLHOUSE * tof'ore moved : and the term inheritance is never used but with reference to the line or blood of the first pur- chaser. Indeed, it would be a solecism in language, a contradiction in terms, and opposed to every principle of law respecting descents, to say that an inheritance can descend from A. to B. directly, or by any indirect course ; when B. is a total stranger to the blood and family of A. The defendant's title then cannot be by de- scent, and no one will pretend that it is by purchase. Nor can the descent, or distribution of real estates, be governed by the construction which is given to the English statute, which respects merely the distribution of personal estate, unless the ability and legal capacity to hold the two descriptions of estate are altered. Aliens are capable of receiving and holding personal estate; but are totally incapable of holding lands, either by purchase or descent. As it respects personal estate, or letters of administration, an alien may be next of kin: but as it respects estates of inheritance, he cannot be next of kin : that is, although he is next of \a\njure firo- pznquitatis, and actually takes the personal estate, yet as it respects real estate, his want of legal capacity prevents his being next of kin to take by descent. This shows that next of kin must be understood with reference to the subject to which it applies : and that it has a differ- ent signification when applied to real, from what is has when applied to personal estate. Or, as Coke very aptly expresses it, next of kin^ ivhen applied to descents, means next of kin inheritable. It will be no answer to our argu- ment to say, that the present statute will in future prevent the consequences here stated as the result of their con- struction. The same construction must be given to the SUPREME COURT OF ERRORS. statute under which the present question arises, as June, 1808. though no subsequent statute had been made. Hi LI HO USB T. But it is said, that difficulties would arise in the set- tlement of estates, if under this statute a different di- rection may be given to the real, from what is given to the personal estate. There could, however, be no greater difficulty in that case, than under the present statute; where different directions may, and in many cases must, be given. Besides, it is a general princi- ple of law, and which holds in every department of science, that the most worthy shall govern: according to the maxim, omne majus dignum trahit ad se minus dignum. If then the terms used in the statute import a different description of persons when applied to real, from what they import when applied to personal estate, and the estates cannot be separated, and but one con- struction must be given, the signification of the term or terms, as applied to the real estate, must govern, as that is the most worthy. It is claimed, that by adopting the terms of the En- glish statute, we adopted their construction. This cannot be inferred from the adjudications of our courts, from the time when our statute was enacted : nor from its provisions. The English courts have ad- judged, that where A. dies leaving personal estate, and one brother B., and three nephews of C., another brother who is dead, that B. and the nephews take /irr stirfies: if B. is also dead, leaving one child, that the child of B. and children of C'., take fier ca/tita. Our courts have adjudged, that in both cases they take firr stir/ies. In the first case, the Englinh courts exclude the uncles from, and in the last admit them to, a shm- with the brother's children. On these different constructions of the English courts, Judge Swift (2 Sytt. 288.) says, " I CASES DETERMINED IN THE June, 1808. know not by what principle of common sense, or rule HIL ~ USE of logic, it can be said, that children do not represent v - their parents, unless some of their uncles are alive;" and asks if it is not equally right to exclude the uncles of the intestate, in one case as the other. Under the En- glish statute of the 22d and 23d Car. II. c. 10. (which is their statute of distributions,) the father and mother took the whole estate in exclusion of the brothers and sisters. This gave rise to the statute, 1 Jac. II. c. 7. which provides, that the mother should come in for a share with the brothers and sisters: on which it is ob- served, [2 Bac. Abr. 428.] " the reason for making this act, it is said, was because the mother might carry all away to another husband: but the husband surviving is entitled to the whole personal estate." The grandmother is preferred, and the great-grand- mother has been preferred, in the administration, to the uncles and aunts. The warmest advocates for conformity, will not con- tend that these principles have ever been admitted un- der any of our statutes, even respecting the division of personal, much less respecting the descent of real estates. It was for a long time much controverted in the En- glish courts, whether even the descent of chattels should be governed by the canon law, or by the rules of the common law. And according to 2 Lev. 173. as late as Trin. T. 29 Car. II. " It was said at the' bar, that the ecclesiastical court gave half shares to the half blood, which Rainsford and Wild held reasonable." The construction given to the English statute by their courts, has, from time to time, varied: nor could it be said, that it had any fixed construction at the time our SUPREME COURT OF ERRORS. 193 first statute of distributions was enacted : the difference j un c, 1808. in the time of the two statutes being only about twenty HII.I.UOUSE years. As to any established construction, therefore, CH l' Tzn the statutes must be regarded as contemporaneous ; especially, considering the distance and the means of information respecting any adjudications, or principles of exposition, which were there adopted. Nor will the provisions of the statutes compare. The English statute directed their prerogative courts after expense, &c. paid, to make an equal and just dis- tribution among the wife and children, &c. " or other- wise to the next .kindred of the dead person, in equal degree, or legally representing their stocks, firo sue tuiquc jure; and to compel such administrators to ob- serve and pay the same, by the due course of his ma* jesty's ecclesiastical laws" Our statute provided, on failure of children, that a part of the estate should be allotted to the wife. " The residue, both of the real and personal estate, equally to every of the next of kin of the intestate, in equal degree, and those who legally re- present them." We will not remark on the words of the English sta- tute " to the next kindred of the dead person, in equal degree, or legally representing their stocks, firo suo cuiyue jure;" or notice their difference, when compared to the terms of our statute; but merely observe, that all is there to be decreed, settled and done " by the due course of his majesty's ecclesiastical laws." At the time of enacting the statute, our ancestors had not the most favourable opinion of " hia majesty's ec- clesiastical laws;" as the very recollection of them was accompanied with the ideas of tithes, test acts, Bishop Laud, and the inquisition. This accounts for their VOL. IFF OP I94 CASES DETERMINED IN THE June, 1801 silence in that respect; and shows, that they did not mean to extend the rules of that code to the distribution 11 1 LI. HOUSE * or descent of real estates; leaving them to operate on CHESTER. . . . . things within their peculiar province, as causes matri- monial and testamentary. The necessary conclusion is, that estates of inherit- ance were to be regulated and distributed, under the provisions of the statute, by the good old rules and firin- ctfiles of the common law. There had been, at an early period, some attempts to give the term next of kin, with reference to estates of inheritance, the construction now claimed, in exclusion of the blood. The Hon. Thomas Fitch, afterwards Governor Fitch, who in his day had no superior, profes- sionally or judicially, as a lawyer, or as a judge, was appointed to prepare the revision of the statutes, in 1750. He was opposed to any deviation from the good old rules of descent. Although he supposed the then law or custom, as it is called, sufficiently expli- cit ; yet, to put it out of doubt, and to prevent any mis- construction here, or misapprehension in England, he inserted the introductory clause of the statute in ques- tion, by which it is expressly declared, that lands and real estate, had " by immemorial custom and common consent, descended to and among the children or next of kin of such intestate, as heirs" Judge Reeve, in his " Essay on the Import of the Term Heirs" (p. 10.) says, that " where the heir takes in character of heir, he must take in quality ot heir," and this will hold e con-verso. This, then, is the same as if it had said, that lands, &c. had descended to the next of kin, who stood in the relation of heirs ; or that they had descended to the heirs vi termini next of kin; constru- ing next of kin to mean next of kin inheritable. This SUPREME COURT OF ERRORS. 195 is fully confirmed by what follows: where it will be j une , 1808. noticed with what solicitude the clause is guarded. Hu.lnousE V. CHESTER. It not only says that " real estates have descended to and among the children, or next of kin of such intes- tate as heirs" but that the " same have been divided to and among such heirs;" and again, " that the estates, both real personal, of persons dying intestate, have ever since the first settlement of this colony, been divided among, and settled upon, the heirs of such in- featates." It was not enough to say, that lands and real estate had descended to the next of kin, as heirs, and that the same had been divided among such heirs, but it ex- pressly declares, that they had, from the first settle- ment of the colony, been divided among, and settled upon, the heirs. Which last, if the others could be doubted, is sufficient to show, that the term is used in its technical and appropriate sense. And it is a fact, that lands and real estate, from the first settlement of the colony, uniformly descended to (he heirs, or to those of the blood; till the Buckingham case, which will be noticed. That the rules of the common law prevailed, par- ticularly respecting the descent of real estates, is further evinced by the expression, "by two different courts, proceeding in different methods, and by different rules." Here are two courts proceeding not only in different methods, but by different rules. By rules distinguished from the methods, or forms of proceeding, must be meant, that in some cases they were governed by the rules peculiar to prerogative courts, while in others they were regulated by the rules of the common law. And here the common law rules must have referred to the descent of real estates, as the distribution of chattels, 196 CASES DETERMINED IN THE June, 1808. was always within the peculiar province of the preroga- tive couru CHESTER. Nor is the statute in question sufficient to vest a fee in the next of kin, unless they claim as heirs of the blood, as there are no words of limitation. The words of the statute are " And in case there be no children, nor any legal representatives of them, one moiety of the personal estate shall be allotted to the wife of the intestate for ever; and one third of the real estate for term of life: the residue, both of the real and personal estate, equally to every of the next of kin of the in- testate, in equal degree, and those who legally represent them." It is not said what estate the next of kin are to take, unless it is governed by the preceding limitation to the widow. One third of the real estate is allotted to the widow for term of life, and then immediately follows " and the residue to the next of kin:" which, according to the rules of construction, would mean in the same way. In that case, it would be only an estate for life in the next of kin: or in the case before the court in Joseph Chester. The truth is, this statute was never designed to alter the established rights of inheritance; but merely to pro- vide a method in which estates were to be divided or distributed. The statute, says Holt, (Refi. 252.) " is but a direction how he" (the administrator) " shall administer." And such was the uniform construction which the sta- tute received, till the decision of the Buckingham case, in 1764; which we beg leave to notice. Mr. Buckingham, by deed or will, gave a valuable real property, lying in Hartford, to his mother, who gave it to the South Society. The deed or will to the SUPREME COURT OF ERRORS. 197 mother was, for some informality, set aside. Mr. Sey- j un e, isos. mour, who was counsel for the society, then determined HILLHOUSE to claim the property, on the ground, that the mother v - CHESTER. was next of km to her son, (who died without issue,) in opposition to the collateral kindred of the blood. Although the idea was treated as chimerical by the pro- fession generally, he moved the court of probate, in 1761, for distribution, which was made by respectable freeholders, and accepted by the court, in favour of the collateral heirs of the blood. This was, in 1762, af- firmed by the superior court; as no doubt was then en- tertained respecting the law, or rules of descent. On this affirmance, a writ of error, by petition, was brought to the general assembly, where an opportunity presented of putting in requisition all that extraneous in- fluence, which has been too frequently practised to ob- tain what could not be otherwise obtained. In addition to the deed or will in favour of the mother, there was a pretence (it is said) that the property originally belonged to the family of the mother, and circumstances of abuse from the claimants towards her, were stated: all calcu- lated to make improper impressions in a question merely of legal right. By adhering to the long established course of former decisions, an important fund, or founda- tion for a fund, was to be taken from a society in Hart- ford, where the question was agitated, and the focus of action, and from a society, too, which was considered as a main pillar of the prevailing system. t The governor and council, however, founding them- selves on principle and precedent, withstood these com- bined incidents; nor was it till after repeated applica- tions, from September, 1762, to May, 1764, and after < considerable changes in the council, that the decree of iperior court was reversed. 198 CASES DETERMINED IN THE June 1808 A decision, under these circumstances, cannot be con- sidered as a precedent; especially when it is recollected, HltLHOUSE . ... v. that such tribunals as unite legislative and judicial pow- ers, too frequently blend them in practice; and decide questions of legal right from the particular circumstan- ces of the case, and not from the strictest regard to principle. It may perhaps be said, that there have been corres- pondent decisions of the superior court. The superior court were, in 1764, composed of members of the council, and, to be consistent, would undoubtedly ad- here to the rule then adopted; nor could we expect a different result, till the influence by which that deci- sion was produced had subsided ; and some have been on the bench of the superior court, within a few years, who were in the court, and in the council, in 1764. We by no means admit, that that, or any analogous decision, was ever acquiesced in as law. It can be said with truth, that the innovating spirit of 1764 was viewed, by the respectable part of the profession, and by re- flecting men generally, who traced its consequences, with disapprobation, as not founded in justice or in law. This appeared in the case of Hull \. Hanford, deci- ded by the superior court, soon after Buckingham \. Treat, in favour of the parent, in exclusion of the blood. This was brought by error to the general assembly; and the house of representatives reversed the decree of the superior court, on the principle, that next of kin meant next of kin of the blood; according to the common law acceptation of the term. The council, however, con- sisting of the members of the superior court, and of those who had been in the former vote, refused to con- cur in the reversal. This, however, showed the sense 4 SUPREME COURT OF ERRORS. of the house of representatives, and the public impres- j une , 1808. sion ; and evinced no very great respect for what might be called an ecclesiastical jiostulatum. CHESTER. The same question was again agitated in parson Ross's case whose wife claimed as heir to her child, by a former husband, opposed to the blood. This came by appeal to the superior court. Mr. Ross-) who was a shrewd man respecting property, dared not risk the trial of it there, or before the general assembly. After lying several years in the superior court, the cause was com- promised by dividing the property. (a) Indeed, the doctrine thus attempted to be established, maintained a constant warfare from its rise to its exit; . which happened in 1784, on the first revision of the laws, after the Buckingham case was decided. By this, the general assembly showed their disapprobation of the principle of that decision ; corrected as far as possible the mischief ; and fixed not only what the law should be, but, as we say, what it had been. A cursory view of some leading facts will discover how far the defendant's claim can be warranted on the ground of established practice and precedent. The only attempt which we find to wrest the statute, as now claimed, till the Buckingham case, was in Petti' bone v. Buell; which, as will be noticed, was decided in favour of the blood on an antecedent point, not applying to this part of our argument. This was in 1712. Tin; tourU are there requested by the counsel for the heirs of the blood in their plea, " to remember the case oi John BtacklcdgC) jun." as in their favour. (a) Then* oaie* vere ttrd from MS '< Hon. 200 CASES DETERMINED IN THE June, 1808. In 1727, an explanatory act was passed, in which a H LHO"USE distinction is made in the construction of the term next v - of kin, as applied to real br to fiersonal estates establish- CHESTER. ing, it is contended, that which we claim. Statutes from time to time were enacted, and re- enacted, which expressly provide, that the tenure of lands should be to the grantees, and to their heirs for ever: agreeable to which, and to the charter, were the forms of conveyance then adopted. In a preamble to the clause of the very statute in question, it is declared, that from the first settlement of the colony, lands, &c. had descended to the heirs. In the Buckingham case distribution is made v and ac- cepted by the court of probate, and affirmed by the su- perior court, in favour of the blood : and although the governor and council were importuned into a compli- ance, yet their perseverance in the right evinced that they considered themselves as justified by former prac- tice and precedent. The surprise and alarm occasioned by that decision, showed, that it was regarded as involving a new and unheard of principle. Such, then, was the law previous to any statute, and such wa,s the construction of the statutes from the time the first was enacted, till 1764. " Great regard (says the author of New ought, in construing a- statute, to be paid to the construc- tion which the sages of the law who lived about the time, or soon after it was made, put upon it; because they were best able to judge of the intention of the makers:" referring to 2 Inst. 11. 136 181. SUPREME COURT OF ERRORS. 201 To apprehend the force of the above rule, as appli- j une> isos. cable to this case, we need only consider that here had HlI.I.HOUSE been a practice under the law, and a construction of v. the statute by the very sages who probably enacted it, for a period of about one hundred years. And what is there to oppose to this in point of precedent ? A mush- room adjudication, nursed in the hot-bed of religious party zeal, with some spurious emanations, which main- tained a doubtful existence, from May, 1764, when the Buckingham case was decided, to January, 1784, when the next revision of the statutes was completed; a pe- riod short of twenty years. Can this be placed in com- petition with a construction and practice thus immemo- rially adopted, and sanctioned, in conformity to the pre- cepts of the law, the provisions of the charter, and of different statutes? An unequivocal confirmation too of our construction, we claim, is to be derived from the terms of the sta- tute, as revised in 1784; and which is the same as the present statute; founded on these considerations: 1. If it is now just, that those of the blood should have the inheritance of their ancestors in preference to strangers, it was just previous to 1784, and was al- ways so. 2. It is not to be presumed that such important rights should not be fixed, or that the legislature meant to make different tables of descent; and to give the in- heritance to those of the blood at one time, and to stran- gers at another. 3. The present statute gives the true meaning of the term next of kin, by adding of the blood; and which was implied in the former statute, according to the VOL. HI. D> 202 CASES DETERMINED IN THE June, 1808. common law acceptation of the term, when applied to descents. V. 4. Had a new law been intended, it would undoubt- edly have been so made; whereas, the act of 1784 was brought forward by the committee (who were appointed to revise) merely as a revision, and as such adopted: and the only difference is, that some parts were then given in detail, which were before expressed in general terms. An inference in favour of our reasoning may be drawn frcm the character of the committee, the Hon. Roger Sherman, equally distinguished for ability, integrity and prudence, and the Hon. Richard .Law, possessing alike the public confidence. Under a power to revise, such men would not make important innovations, nor would a new system of de- scents be framed. They considered the statute then enacted as a revi- sion, and as such it was adopted; and in the act confirm- ing this revision, a clause is inserted, it would seem, with a view of guarding against the suggestions now urged. " Provided (are the words of the clause) that such of the foregoii.g laws as remain in substance the same as before the revisal, shall be considered as having con- tinued in force from the time they were first enacted; any circumstantial amendments or alterations notwith- standing." Declaratory and explanatory acts are not uncommon in the statute books; and our courts have respected these, while in iorce, as part and parcel of the original SUPREME COURT OF ERRORS. 203 -acts to which they refer; even in cases which had arisen j une , isos. between the precedent and subsequent acts. HII"LHOLSK v. Holt, Ch. J. thus expresses the rule; [Ld. Raym. 1028.] ** A subsequent statute may be comprehended within the Weaning of an act precedent, (as the statute of 32 Hen. Vlli of wilJs. whhin the 27 Hsn. VIII. of jointures,) when the latter statute is within the same reason as the former: 29 Car. II. c. 3. p. 35. respecting the right of the husband to take administration on the estate of his wife, is included in 22 and 23 Car. II. c. 10. We would ask, are not all the statutes of distribution within the same reason ? Had the general assembly, in 17b4, expressly declared, that next of kin meant, and bad always meant, of the blood, according to the com- mon law rules of descent, the court would have consi- dered themselves bound to give the term that construc- tion; even where the inquiry was respecting its import anterior to that time. Goddard and Gurley, for the defendant. The plaintiff moves for a new trial for a misdirection on two points: first, that Mary Chester was so seised as to be capable of transmitting the estate to her heir; and, secondly, that by virtue of the statute then in force, Jose/ih Chester, on her death, became entitled to the estate, as her heir. 1. We contend, that according to the English /aw, a title to the estate could be derived from Mary. Wher- ever* an actual entry cannot be made by the person en- titled, there may be a constructive seisin. Thus, as to remainders and reversions, where an actual entry by the person entitled is impracticable, if he exercises an act of ownership over the estate, this will be deemed 204 CASES DETERMINED IN THE June, 1808. equivalent to an actual seisin of an estate capable of ~~ ~~ . being reduced into possession by entry, and will make T - the person exercising it a new stock of inheritance. Where lands are held under a lease for years, and the lessee has entered under his lease, the heir will be con- sidered as having seisin without entry, and even before receipt of rent ; because the possession of the lessee for years is his possession. Where lands are let on leases for lives, the freehold being in the lessees, the heir has no immediate right of entry on the death of his ancestor, but is only entitled to the rent reserved in the lease; by receipt of which, he becomes seised of the rent, and of the reversion expectant on the determina- tion of the lease. The entry of the heir upon any fiart of the estate is constructively a seisin of all the lands lying in the same county. If the heir be deterred from entering through fear of bodily injury, he may make claim as near to the estate as he can, and this will give him seisin for a year and a day. The seisin of one joint-tenant, coparcener, or tenant in common, enures to all. But to come nearer to this case, the pos- session of a guardian in socage, is the possession of the ward ; and the latter thereby acquires seisin without entry. In Goodtitle v. Newman, 3 Wils. 516., it was de- cided, that where a posthumous son is born, and the mother is in possession of the lands, of which his father died seised, she becomes his guardian in socage ; and the infant son will be thereby deemed to be actually seised of the inheritance, so as to exclude the half blood. In a later case, where a person died, leaving two daugh- ters by different venters ; the mother entered as guar- dian in socage, and received the profits ; it \vas held, that this gave such a seisin to the daughters, that, on the death of one of them, the other could not inherit from her. Lord Kenyan said, nothing can be clearer, than that an infant may consider -whoever enters on his estate, as entering for his use. Doe v. Kccn^ 7 Term SUPREME COURT OF ERRORS. 205 Eefi. 386. This decision was made in view of all the June, i)8. learning on the subject. Hi LI. HO USE ?. CHESTER. Admitting, however, for the sake of argument, that by the rules of the Engliah law, a title to this estate cannot be derived from Mary, yet we contend, that by the law of Connecticut, the title was so far vested in her, as to be transmissible to her heir. In this state, the fa- ther is tenant by the curtesy only until the child comes of age. The rents and profits of the estate are given to the former during that period, for the nurture, edu- cation, and support of the latter.(a) When the reason ceases, the estate determines. A tenant by the curtesy, therefore, has only a term for years. But the word seisin is applicable only to an estate of freehold. On the death of the ancestor, the heir is seised of the free- hold, and the tenant by the curtesy, after entry, is fios- sessed of a term for years. This distinction between the seisin of the freehold, and the fiosxession of the te- nant for years, has been established from the time of Braxton, who says: " Item dare Jiotest guts terram quam aliua tenet ad tcrminum annorum, salvo tamen fir- mario termino wo, guia ista: dux fiossessiones sese com- fiatiuntur in unarc, quod unus habeat liberum tenementum, et alius terminum." It follows, then, even upon English principles, that where the tenant by the curtesy has but a term for years, his estate does not interfere with a seisin of the freehold in the heir. But whether Mary was seised or not, she had an interest in the property in dispute; and this interest, whatever it might be, de- scended to her heir. Our statute determines the mode in which all the firofierty of a deceased person shall be disposed of. The terms arc such as comprehend all estates to which the intestate hud the right of possession, as well as the right, and actual possession. The wife is (o) In ujuxu-tof this position, a note of one of .I'l.l^,- /?/*<' Ixr- :>nii " F.vtntf*" wm read hy the ronasrt. 206 CASES DETERMINED IN THE, June, 1808. to have her dower " in one third part of the real estate HII.LHOUSB ^ ner Deceased husband, which he stood possessed of, v - in his own rierht, at the time of his decease.'Ya) An in- CHESTER. ventory is to be made " of all the estate of the person de- ceased, as well moveable as not moveable, whatever."(6) " A just division or distribution" is to be made " of all the estate, both real and personal, of any such intestatf."(c) After provision has been made for the wife, " all the re- sidue and remainder of the real and personal estate" is to be distributed to those standing in the relations spe- cified.^) Where there is a deficiency of personal estate to pay debts, the court of probate is authorized " to order the sale of so much of the real estate as shall be sufficient to pay the same."(f) Now, suppose Mary had married and had children, and died during her father's life. Must not her estate or interest in these lands be inventoried ? Might not the court of probate order it to be sold for the payment of debts ? A tenant by the curtesy, to say the least, has not a greater estate than a dowress has. Suppose A. dies seised of lands, which are assigned to his widow in dower. During her life, B. a son and heir of ^. dies, insolvent. Is not the interest of B. in these lands to be inventoried, and made subject to the order of the court of probate. The truth is, that by our law there is no difference between actual and legal seisin. He who has the right of possession, has, in contemplation of law, the pos- session. If it be true, that Mary was so seised as to be capable of transmitting the estate, she is to be considered as the (a) Mat. Con. tit. 51. c. 1. s. 1. (6) Id. tit. 60. c. 1. s. I. (c) Id. s. 12. (rf) 1,1. (e) hi. s. 22. SUPREME COURT OF ERRORS. 207 firoposita; and from her the title, by inheritance, must June, 1808. be derived. HI CHESTER. 2. The question then is, secondly, whether, by the statute then in force, the estate, on the death of Mary, vested in William Hitthome, the maternal uncle, of Josefih Cheater, the father. The words of the statute are " the residue, both of the real and personal estate [shall be distributed] equally, to every of the next of kin of the intestate, in equal degree, and those who legally represent them." The literal signification of the term next of kin, or nearest kindred, we appre- hend, will admit of no dispute. But whatever the term may intend, in its popular acceptation, the law, it is said, has given it a different, and much more limited signi- fication, which is, next of kin of those, only, who are of the blood of the first fiurchaser. Though it be a general rule of construction, that the meaning of words is to be taken according to common acceptation ; yet if, on the present question, a contrary rule has been adopted and followed through a long series of judicial decisions, we could now only acquiesce. That such was, uni- formly, the fact, until the case of Buckingham, in 1764, is confidently asserted by the counsel for the plaintiff. Unfortunately, however, the proof rests on this asser- tion, merely. The assertion would, therefore, be suf- ficiently answered by a simple denial. But, . however the law might have been held, previously to 1764, it is conceded, that the authority of Buckingham's case maintained its ground in despite of the attacks of its numerous and powerful enemies, which, we arc told, kept it in a state of constant warfare, until the revision of the statute, in 1781; which put an end to the contest We do not, howevir, agree that the decision of fiuck- ingham't case was an innovation upon the ancient lavr. The preamble to the statute of 1750 furnishes strong evidence to the contrary. " And whereas the lands and 208 CASES DETERMINED IN THE June, 1808. real estates of persons dying intestate, in this colony, jj " by ancient and immemorial custom, and common consent of the people, have descended to and among the children, CHESTER. or next of kin, of such intestate, as heirs of such in- testate; and the same, by order of the courts of pro- bate, have generally been divided to and among suck heirs, in common, with the chattels, or moveable estate. And the estates, rral and personal, of persons dying in- testate, have, ever since the first settlement of this colo- ny, been divided among, and settled upon, the heirs of such intestate," &c. This preamble declares, that it had been an immemorial custom to divide the real estate among the heirs of the intestate, with the moveable estate. But it is certain, that, in the distribution of the movea- ble estate, no regard is paid to the blood of the first purchaser, neither here, nor in England, under the sta- tutues 22 and 23 Car. Il.(c) but the parent will inherit before the collateral and more remote kindred. In the preamble, no mode of dividing real estate, different from that of distributing personal chattels, is mentioned ; but it is expressly declared to have been the custom to divide the one with the other. This idea is corroborated, and a very satisfactory reason assigned, by the pream- ble to the statute prohibiting the sale of heiresses' estates, without their consent. "Whereas in the first settlement of this colony, land was of little value, in comparison with what it is now, by which means it be- came a general custom that the real estate of any per- son, which, either by descent, or by will, became the estate of his daughters, whether they were seised of it, at the time of their marriage, or whether it descended or came to them, during their coverture, became thereby the proper and sole estate of their husband; and might be, by them, alienated, or disposed of, without the know- ledge and consent of such wives." This statute was (o) 2 VI. Com. 520. SUPREME COURT OF ERRORS. 209 enacted in 1723. It conclusively shows, that, until June, 1808. that period, the real and personal property of femes covert were on the same footing, both being absolutely T - at the husband's disfiosal. The reason was, that it " was of little value," and therefore did not require to be protected with more solicitude than property of a dif- ferent description. 'iiu. conclusion seems obvious, that if the real estate of femes covert wua nut supposed to deserve a greater degree of care than her personal pro- perty, the former could not have been thought of suffi- cient importance to be kept, inviolably, in the line of the blood of tke first purchaser. But, in opposition to all this, and to show that the decision of ^Buckingham's case was contrary to former practice, it is said, that that case was so decided by a vote of the house of representatives, obtained by ex- traneous influence, and much against the opinion of the council ; who, it seems, at last concurred with a very bad grace ; and not until the people, at the instigation, we suppose, of the Hartford South Society, had exerted their irresistible influence, by removing some of the most stubborn of the honourable body, and appointing others, of a more pliant temper, to fill their places. This, indeed, was an argument of such convincing energy, that the members of the council ever after ac- quiesced, even when on the bench of the superior court ; though, it is intimated, that some of the judges regarded the decision with no great complacency ; so that Parson Ross himself, though, probably, a man of abundant resolution, had too much " shrewdness in point of property" to venture on a trial of the question ; but was fain to divide the estate with his antagonist, and let the matter rest as it was. As to the statute of 1727, it does not support the construction contended for by the counsel for thr de- ir?. p, o CASES DETERMINED IN THE June, 1808. fendant, but directly the contrary. It gives no pre HILUHOUSE ference to tne k i ndred of the intestate, who are of the v - blood of the first purchaser, unless they are, also, of *n HS T K n the whole blood of the intestate, while the other kindred, in equal degree, are of the half blood. Neither does it vest the estate in the kindred of the transverse line, be- fore those of the ascendant line, unless both are in equal degree* Thui bj inat statute, the brothers and sisters inherit before the parent ; " and the fiarent, from whom the intestate descended, shall be admitted before the uncle, or cousin german, or brother's children ;" no re- gard being had, in this case, to the blood of the ancestor from whom the estate descended. We remark, en the whole, that the construction of the statute, contended for by the defendant, is not jus- tified by the words of the statute itself, nor by the pur- view of other statutes relating to a similar subject ; nor does it appear to be authorized by ancient decisions. These decisions, indeed, are involved in much obscurity. But so far as they are known with any degree of cer- tainty, they support the contrary doctrine. And if it may be said to savour of hardship, that the estate should be taken from the family of the original owner, and given to a stranger, it is to be recollected, that that hardship does not now exist, having been removed by later statutes. At all events, the precedent, about to be established, can have but a narrow operation, very pro- bably not beyond the case by which it is occasioned. BY THE COURT. The statute of distributions, which was in force in this state, at the death of Rachel, places the real property of a person who died intestate upon the same footing as personal : that is to say, both kinds of estate were to be distributed to the same persons, without atiy regard to the maxim seisina facit siifiitcm. The claim, therefore, of the plaintiff to the land in ques- SUPREME COURT OF ERRORS. 211 lion, on the ground that she was the person last ao June, 1808. tually seised, as next of kin to her, fails; for on Rachel's HILL HOUSE death, who left issue Mary Cheater, her only child, the v O H ES X K R. lands descended to said Mary, and she was, although a minor, legally seised of those lands as heir to her mo- ther. This has always been the received opinion in this state, and the practice has been conformable thereto, that on the death of an ancestor the descent was cast upon his heir, without any reference to the actual seisin of such ancestor ; and the right of such heir to the real property of the intestate was the same as his right to his personal property. The plaintiff cannot, therefore, inherit this estate as next of kin to Rachel. If he can inherit the estate in question, it must be as next of kin to Mary Chester, his niece. It cannot be pretended, that the plaintiff is next of kin to Mary, if we give the same construction to the words which they have received in the English law. The rule of construction, which has obtained in that law, has been uniformly the same, since their introduction into it. By the statute of Hen. VIII. administration on the estate of an intestate is directed to be given to the next of kin. It has always been held, that to ascertain who this person is, the computation of kindred is to be made according to the rules of the civil law. So too the statute of distributions, enacted in the reign of Car. II. directs, that if there is no issue of the in- testate, his personal property shall be distributed to his next of kin. To ascertain who that person is, the computation is always made according to the rules of the civil law. Our statute, which directed that in such an event the estate of the intestate, both real and per- sonal, should go to the next of kin, was enacted at a r when the aforesaid statute of Car. II., and the con- struction given to it, was perfectly known. It is a jouml rule, that whenever our legislature use a term, without defining it, which is well known in the English 212 CASES DETERMINED IN THF- June, 1808. law, and there has a definite, appropriate meaning af- ij ~ fixed to it, they must be supposed to use it in the sense in which it is understood in the English law. In the present case, the father of Mary was her next of kin, according to the computation of the civil law, being in the first degree, whilst the plaintiff was in the third de- gree. For the same reason that Mary's personal estate would have gone to her father by the English sta- tute, both her personal and real would go to her father by our statute, for he is her next of kin j and there is no possibility of resisting this conclusion, unless the term next of kin, when used in our statute, mean to point out one person, when real property is concerned> and a different person, when personal property is con- cerned. It is to be observed, that there is no intimation in the statute, that those terms are to be understood in two different senses. Both kinds of estate are directed to be distributed to the next of kin. There must be some very cogent reason to induce a belief, that the legisla- ture did not intend, in all cases, that both kinds of estate should go to the same persons. It is claimed that the term next of kin in our statute, as it respects real property, means the next of kin inherit- able at common law. So that when there are no issue of the intestate living at the time of his death, we must resort to the English common law to discover who may inherit his real property, by which law the ascending line is excluded, and every person in the collateral line, ex- cept the next collateral kinsman of the whole blood, who himself is of the blood of the first purchaser. Certain it is, that the statute intimates no such thing. But it is contended, that this is the meaning of the terms, when real property is concerned. In the English SUPREME COURT OF ERRORS. 213 law of descents, we never find these words so used June, 1808. standing alone as in our statute. The rule in their luw is, HiL~Hou6E that on failure of issue of the person who died actually * CHESTER. seised, his real estate shall go to his next collateral kinsman of the whole blood, who is of the blood of the first purchaser. It would be very strange, that the words next of kin in our law should designate the cha- racter just described, when they would not designate such person in their law. Where A. devised a real estate to B. his daughter for life, with remainder over in fee to his next of kin, without other words or expla- nation, it was determined, that on the death of B. this estate should go to the next of kin, computing kindred according to the rule of the civil law, and not to the next collateral kinsman of the whole blood, Sec. If the legislature of this state had discovered an anxiety in other respects to preserve entire the rules of descent established by the common law, it might have furnished some ground for a conjecture in favour of the plaintiff's claim ; but that is not the case. Instead of respecting the English law of descents, they have pro- vided, that there shall be no preference given to males; that females shall inherit equally with them; and also, that there shall be no preference given to the eldest male. If then a man dies intestate, instead of the real property descending to the eldest son, to the exclusion of his brothers and sisters, it descends equally to all his children, whether male or female. The object of our statute is to distribute the estate of an intestate per- son equally among all those who are in the same degree of relationship; and this object would be defeated, if such construction should be given to the term next of kin as is contended for by the plaintiff. For, if we consider the term as meaning such next of kin only as are in- heritable at common law, then no person can inherit to the intestate, except the eldest male, however many CASES DETERMINED IN THE June, 1808. persons" there may be in the same degree of kindred according to the computation of the civil law. It must IIlLLHOUSE v. " be the next collateral kinsman to the intestate ot the ER ' blood of the first purchaser; for he alone, as the next of kin, is inheritable according to the English law of descents. To adopt this rule, we must give a construc- tion to the terms next of kin, which they have never received before ; and this is to be done in opposition to the manifest intention of the legislature, who enacted the statute. It is opposed to the received opinions among lawyers, and all the modern decisions in this state. New trial not to be granted. WILLIAM BUTLER against GIDEON BUTLER. When a wit- MOTION for a new trial. ness has been examined by the party a- This was an action upon the covenants in an indenture gainst whom -. . . - he is called, as * apprenticeship, by the master against the defendant, to his interest W k j^j t, oun( i n j s son an apprentice to the plaintiff. in the event, other wit- At the trial to the jury, the defendant offered the depo- nesse$ cannot .,.',_ ... be inquired of sition of Amos Butler, the apprentice, in evidence. To rest h a nd' nt k snow that this deposition ought not to be admitted, and makes no dif- t aat ^ mos Butler was interested in the event of the suit. ference whe- ther such ex- the plaintiff offered one Ensign as a witness to prove, by e! tne acknowledgments o/ the defendant, that Amos Butler neral oath, or had an i nteres t in the event of the cause. This was the voire dire; nor whether objected to, because upon the cross-examination of itwas in court, or before a Amos Butler, before the magistrate who took his depo- sl" sition ' the P laintiff hatl inquired of Amos Butler himself tion out of as to his interest in the event of the suit. And the court. SUPREME COURT OF ERRORS. 215 court ruled, that Ensign could not be examined for this June, 1808. purpose. After a verdict for the defendant, the counsel EVTLER for the plaintiff moved for a new trial on this ground. v< BUT UK*, The question was reserved; and was now argued by Brace and T. S. Williams, against the motion, and Ed- wards, in support of it. Against the motion it was said The rule that a party cannot examine a witness as to his interest, and then examine other witnesses to contradict his testimony on that point, is perfectly well settled in Great Britain. In the case of The Queen \. Muacot, 10 Mod. 193., Parker, Chief Justice, says, " that the law gives the party his election, to prove a person offered as a witness inte- rested, two ways, (i'/z.) either by bringing other evi- dence to prove it, or else by swearing the person him- self upon the voire dire; but though he may do either, he cannot do both." This has ever been considered as a principle of the common h-,w. Peakc's Evid. 186., 2d London edit. It has been recognised by the courts in Massachusetts, \ Mass. T. Rcfi. 222.; and by the su- perior court in this state. The cases in the English books, it is admitted, are cases where the voire dire oath had been administered, and the inquiry had been made under it. The reason of which is, not that the law- would not have been the same, had the inquiry been nuidt; under the witness's oath, (could such an inquiry be permitted,) but a rule having existed, that no objec- tion to the competency of a witness can be made after he has been sworn in chief, and examined ; 4 Burr. 2252. 1 T. Rrfi. 719. it follows, that no inquiry can be made of the witness himself, or of any other person, to prove the interest of the witness, except for the pur- pose of invalidating his testimony. But by our practice, the examination as to the interest of a \vi .my time during t!i >:udcr the witness's oath, as the voirr riVrr oath ; ;: 216 CASES DETERMINED IN THE June 1808. effect of the examination in excluding the witness would _ be precisely the same in one case as the other, the effect BUTLER ' BUTLER. as to excluding other testimony, to prove the interest, ought to be the same. If it were otherwise, the party vho wishes to prove the interest of a witness, will al- ways apply to the conscience of the witness himself, under the general oath, and not under the wire dire; and if the witness dfinies his interest, he maythen prove it by other testimony; and will, in this way, have all the benefit of an examination under the -noire dire oath, without the disadvantage of it. And thus the common law principle will be entirely subverted. It is said, that there is no reason why the party who has examined a witness, as to his interest, should be precluded from inquiring of others as to the same fact, any more than if he had examined him as to usury, or a fraudulent conveyance, &c. But in those cases, the inquiry is not made by way of attacking the competency of the witness, but only affecting his credit. Besides, this objection applies with the same force to an examina- tion after an inquiiy under the -voire dire oath, as un- der the witness's oath. But the decisions in this state have never recognised any distinction, whether the examination was made under the voire dire oath, or under the general oath. In either case, it has been uniformly holden, that no fur- ther inquiry should be had. Mallet v. Mallet, 1 Root, 501. Coit v. Bishofi, 2 Root, 222. Tudor and Woodbridge V. Hart, JVov. 1807. That this was a question contained in a deposition, and not put in open court, surely can make no differ- ence. The witness who deposes before a magistrate, must have the same rights, and the party examining SUPREME COURT OF ERRORS. 217 him can have no greater, than if the examination were June, isog. made in open court. In support of the motion, it was contended, that the testimony of Ensign, to prove the interest of Amos But- ler, ought to have been admitted. That the plaintiff had once a right to prove the interest of the deponent is not denied. How has he lost that right? By asking the question as to the interest of the witness from the depo- nent himself? But it is not readily perceived, how an interrogatory to a witness, upon a cross-examination, can deprive the party of a right before existing. Does it make the witness, the witness of the party asking the question ? If so, why will not any question asked of a witness, as to a fraudulent conveyance, or usury, or any other matter, make him the witness of the party as to that matter ? The right of cross-examining witnesses is a right all important to the purposes of justice; but it will be dangerous to exercise it, if, in so doing, the party runs the hazard of depriving himself of his own testimony. It is agreed, that where the witness has been examined as to his interest upon the voire dire oath, it cannot be proved in another way : the reason of this is, that by such examination, he is, to that point, the wit- ness of the party examining him, who cannot, therefore, impeach him. And this is proved by the form of the oath itself. This is a strict rule, and ought not to be extended any further than that case, and does not apply to the case where a witness has been sworn in chief, and an- swered interrogatories, upon a cross-examination. But the question was not under the voire dire, nor even in rourt, but a question put before a magistrate, who had VOT ITT Ff 218 CASES DETERMINED IN THE June, 1808. authority, indeed, to take the deposition, but no au- thorii.y to administer the -vdrcjlire oath, or to determine as to the propriety of the person's being a witness. This question, therefore, thus put, should have no more effect, than if the same question had been put to the witness, upon trial of this cause at the County Court; and that certainly would never have prevented the plain- tiff from proving the fact of interest by other testimony') when the case was removed to the superior court. The case of Coit v. Bishop, cited for defendant, was where the party attempted to draw from the witness a confession of interest, after having called other witnesses without success. The case of Mallet v. Mallet was not> like this, a question put before a justice, on cross- examination; and of all the cases cited decided in this state, it is sufficient to remark, that they were not brought before the supreme court for their opinion. BY THE COURT, GRISWOLD, Judge, dissenting. It is a settled rule, that the interest of a witness may- be shown, by the testimony of others, or from the wit- ness himself: and the party challenging has his choice of either mode of proof, but not of both ; for it is not reasonable, that the party should be permitted to sport with the conscience of the witness, when he has other proof of interest. It is immaterial whether a witness be examined as to his interest under the form of the voire dire, or under the general oath to witnesses: in either case, an appeal is made to him under oath. Depositions are by law admitted from necessity, or for conveniency, and the evidence thus taken is, as far as possible, to be subject to the rules of oral evidence. Thf Sctme iK'ces^ity for appealing to the witness for proof of his interest exists, whether he deposes before SUPREME COURT OF ERRORS. 219 a magistrate, or testifies in open court; and if not per- June, isos. tnitted, the evils of trial by depositions will be greatly BuTLER increased. Such inquiry, then, is proper, and the con- sequence must be the same as if made in court. We are, therefore, of opinion, that the aufierior court were correct in excluding further proof of interest ; and that a new trial ought not to be granted. New trial not to be granted. JAMES BENNETT against NATHANIEL HOWARD, jun. WRIT of error. !t is a suffl . cient ground of arrest of This was an action on the case. The plaintiff alleged in .Hgment, thntoneot the his declaration, that on the 15th of February , 1802, he jurors con- versed about sailed from JYcv>-Lr,?idon, as a seaman on board the ship the cause, Disfiatoh) of which the defendant was master, on a seal- * n \ e r \ ii \ t *th ing voyage to the Pacific Ocean, under an agreement persons not ol the jury. to receive, as wages, a certain share of the profits of the voyage : and that during the voyage, the ship put de S5J*!bt into the harbour of W-nt Point, one of the Falkland < he landn, barren, uninhabited, and in an intemperate cli- "' tin- ship cm ,.,,.. bnard ofwhich mate. While the ship lay at this island, the plaintiff the plaintiff was ordered to go on shore by the defendant; who af- ,* "* t a n * eftmHn ' terwards refused to receive him again on board the '"*. to his w ship; but, without the fault of the plaintiff, left him, : , ,i contrary to his will, with nine other seamen, on the "J^ ic plain- utrary II, on late n the efi-nd- island, destitute of provision, and without the necessary ' l ne means of procuring subsistence : by which his health tht h ci.m- waa impaired, and his time wasted. Which doings of J 1 ,*",^' lo he l nve the island, and com.- on board the ship; which the pi niiitifT refused t' verdict, freely conversed about the case, while it wan on HE ~ trial, vjilh other persons, not of the jury; but that the v - other facts alleged in the second reason were not true. The third reason was adjudged sufficient. The verdict was set aside, and the cause ordered for a further hearing. It was again tried, on the general is- sue, February term, 1807. The defendant, to rebut the charge that he would not suffer the plaintiff to come again on board the ship, but left the plaintiff on the island of West Point, against his will, now produced sundry witnesses, who testified, that the defendant commanded the plaintiff, and the other persons who were on the island, to come on board the ship, which the plaintiff and the other persons re- fused to do. It was proved, that when the order to come on board was given the plaintiff and his companions on the island, they replied that they were willing to do their duty, on board the ship, if the defendant would oblige himself to them that they should have their lays (shares of the profits) at the end of the voyage, and that they should receive good usage on board. And to show that the plaintiff and his companions had appre- hensions of ill usage, the plaintiff offered evidence to prove, that during the voyage, and before the ship arrived at the island of West Point, the crew had suf- fered extreme ill usage from the officers; particularly, that John Howard, the second mate, had, without pro- vocation, beaten two of the seamen with such severity as occasioned their deaths; and that he lad seriously wounded three others, without being punished, or re- primanded for it, by the defendant; although the facts were within the defendant's knowledge ; which the plaintiff also offered to prove. And that those were the reasons why the plaintiff, and the other seamen who 222 CASES DETERMINED IN THE June, 180*. were left, ought to have security for future good usage, BEN!ET ^ l ^ s evidence the defendant objected ; and the court ruled, that it was inadmissible. A verdict was found for the defendant, and the plaintiff filed his bill of excep- tions. The errors assigned were, first, That the allegations in the second reason contained in the defendant's motion in arrest of judgment, which the court found to be true, ought to have been adjudged insufficient. Secondly, That the allegations in the third reason contained in the plaintiff's motion in arrest, were also insufficient. Thirdly, That the evidence offered by the plaintiff at the second trial of the cause, and rejected by the court, ought to have been admitted. Ingersoll and Bradley, for plaintiff in error. The al- legation in the motion in arrest, that " one of the jurors conversed freely about the case, while it was cm trial," is too general. A juror may lawfully speak about the cause, if what he says does not relate to its merits. Thus, he has a right to relate who the parties are; to say that the jury have agreed on a verdict; or any thing else, which does not, in the language of the juror's oath, concern " the business and matter they have in hand." The allegation found, by the court, to be true is, in- deed, not traversable. The only material allegation is negatived by the finding of the court. The last exception is, merely, that the juror concurred in the verdict, in consequence of his ignorance of the law. But this averment cannot be made ; for the de- fendant is estopped by the record, which is as conclu- sive of his voluntary concurrence in the verdict, as it is f the judges' concurring in the judgment. The evidence offered by the plaintiff, as stated in the kill of exceptions, is not to prove the averments in the SUPREME COURT OF ERRORS. ' 225 declaration; to explain the fact proved by the defend- j an e, 1808.^ ant, that the plaintiff refused to comply with his order B ENNETT to come on board the ship ; and therefore remained * ., . . HOWARB- voluntarily on the island : It is to show, that to stay on shore was resorted to as an expedient less dangerous than to return to the ship; which the plaintiff offered to show he could not do, without hazard of his life. For this purpose the evidence was admissible. 1. Because the cruelties exercised upon the crew by the inferior officers of the ship, were chargeable upon the plaintiff; since, when they came to his knowledge, he refused to restrain them. 2. Because circumstances might exist of such a na- ture as would justify the plaintiff in refusing to return on board, without being assured of proper treatment. What these circumstances were, he had a right to show. Daggett and Terry , for the defendant in error. BY THE COURT. The oath of jurors obliges them to " speak nothing to any one concerning the matters they have in hand, but among themselves, nor suffer any to speak to them about the same but in court, until the verdict is delivered up in court."( a ) In this case, the court below found, that one of the jurors conversed freely with persons not of the jury, about the case, while it was on trial. This was directly contrary to his oath. To suffer such practice to obtain, would be of very dangerous tendency, by opening the way to corrupt the streams of justice ; and would destroy all confidence in the trial by jury. (a) fitat. Com. tit 192. c. 1. 1. I \ 224 CASES DETERMINE!) IN THE June, 1805. The testimony offered, and rejected by the court, BENNETT wholly inadmissible. The gist of the action, as laid in v - the declaration, is the leaving the plaintiff, contrary to HOWARD. . his will, upon a desolate island, in the South Sea, by the defendant; which the defendant attempted to show was not true, by proving that he invited, and even command- ed, the plaintiff to come on board, and proceed on the voyage. The plaintiff, by the testimony offered, and rejected, attempted to show another cause of action, viz. that he was unwilling to return on board the ship, and proceed on the voyage, through fear of abuse and ill usage. It could have no tendency to show or establish the facts alleged in the declaration, or put in issue; and would have led to an inquiry into facts out of the case, which might have had a very improper influence on the minds of the jury. Judgment affirmed. INHABITANTS OF THE TOWN OF OXFORD against THE INHABITANTS OF THE TOWN OF WOODBRIDGE. There being WRIT of error, two parishes in the same town, a pau- This was an action of indebitatus asuumhsit, brought per resided in the first four by the town of Woodbridge against the town of Oxford. removed 6 1 to f r money paid, laid out, and expended, for the support the second, o f one Pku Bradley. In the county court, the general and resided there s ix issue being pleaded, the jury found a special verdict, iT ws ineo stating, that prior to October, 1799, the town of Oxford poratedintoa was a parish of the town ol Derby; that abcut the 1st distinct town ; he remained of May, 1795, Bradley removed from Plymouth, in there after the incorporation four years and sis m^il^. VH' then went away. Held, that he gained DO legal settlement in the town last mentioned. SUPREME COURT OF ERROR& 225 .Litchfield county, to a place in the town of Derby, with- j une , isos. out the limits of Oxford, whence he removed to a place lnhH j^j ts O f in Oxford, in May, 1799; that in October, 1799, the pa- OXFORD v. rish of Oxford was incorporated into a town ; and that inhabitants of he resided in the territory of Oxford, from the 1st of May, 1799, until the 1st of May, 1804, supporting him- self and family during the whole time, and then re- moved to H r oodbridge, where he became chargeable. Upon these facts, the county court decided, that the defendants were liable for his support, and rendered judgment accordingly. On error to the superior court, that judgment was affirmed. Stafiles, for the plaintiffs in error. The statute points out several ways in which a man may gain a legal settlement in a town; and one, among others, is, by residing and supporting himself for the term of six years. (a) (a) By Stat. Conn. tit. 91. s. 4. it is enacted, "That any inhabitant of any town in this state may remove with his or her family, or if such, person have no family, may remove him or herself into any other town in this state, and continue there without being liable to be warned to ill-part, or to be removed therefrom, except in the case hereinafter provided; and shall gain a legal settlement in the town to which he or she may have so removed, in case he or she shall reside in such town for tin- full term of six years next from and after his or her first re- moval into sucli town; and shall, during llie whole of said term, have supported him 01 h. r i n, and his or her family, if such person have a family, at the time of said first removal, or at any time during said term, without his, her, or their becoming chargeable to such town, or to the town that may by law bo liable to charge for the support of such person and family ; Inn if any such person shall, at any time before the expiration of said term of six years, bc- co/ne unable to support and maintain him or herself, and family, if any be, and become chargeable to the town, that may lie liable to charge for his, her or their tuppnrt ; in lliat case, every such person, with his or her family, if any be, may be removed to the place of hi* r her last legal settlement," tec. VOL. III. :irty, l>\ joining is- Thc defendants pleaded, that the note was givrn as sue on ti.e facts an escrow to compel them to abide the award of Ben joe not ad- jamin Bull, William Durand and Henry Bull, arbitrators '" il "'' itl' oi the induce- between the plaintiff and the defendants ; and that no mcut award was ever made. Q//rr, whe- ther after a I 'lea of no The replication alleged, that it was agreed in the <<"/, : , re. joinder of a submission, that Clark should deliver to the arbitrators rmii-ntitinu* a deed of a certain piece of land, conveying the same dc P lulure ' 232 CASES DETERNCINED IN THE June, 1&08. to Green, and also a deed of another piece of land cou- FOWI~E veying the same to Fowler, and that, on publishing theii v - award, the arbitrators might, on certain conditions, de- CLARK. liver said deeds to the grantees, and also deliver the note on which, &c. endorsed down to such sum as they should find due, to the plaintiff. The replication then alleged, that the arbitrators made and published their award, endorsed down and delivered the note; also deli- vered said deeds to the grantees j and that Green accept- ed his deed. To this there was a rejoinder, alleging a revocation of the powers of the arbitrators ; and concluding with a traverse of the allegations, that the arbitrators endorsed down the note, that they delivered said deeds to the grantees, and that Green accepted his deed. The de- livery of the note to the plaintiff was not traversed. There was then a surrejoinder, taking issue on the facts traversed, without noticing the allegation as to a revocation. The jury found the issue in the plain tiff 's favour. The defendants then moved in arrest, on the ground, that upon the whole record, judgment ought to be ren- dered in their favour, or a repleader ordered. The superior court denied the motion, and gave judg- ment for the plaintiff; on which this writ of error is founded. Daggstt and JV". Smith, in support of the judgment. 1. The averment of a revocation, be it inducement to a traverse, or what it may, is a manifest departure from the plea. This depends upon another point, viz. SUPREME COURT OF ERRORS. 233 does the plea of no award mean no award in fact, or no j unC) jgos. legal award ? We contend that it means no award in fact. FOWI.ER In support of this position, we rely upon the following v. authorities. The first is Roberts v. Marriott, 3 Lev. 300. " Debt on obligation, conditioned to perform an award, so that it be made and tendered at the house of J. S. tuck a day. The defendant pleads no award. The plaintiff replies, and shows an award, and assigns a breach. The defendant rejoins, that it was not tendered at the day. The plaintiff demurs : and for the defend- ant it was argued, that this was no departure ; for it not being tendered, and the submission being condi- tional with an ita quod, it is no award. To which it was answered, that the plea of no award is intended of no award at all, cither in fact or in law ; but the rejoin- der admits an award in fact, but that it is void in law for want of a tender; and so it is a departure. 2 Roll. Abr. 692. ftl. 10. And of this opinion were the whole court, and gave judgment for the plaintiff." In 2 Saund. 189. the same case is reported, and the same decision had ; and in a note to this case, the learned editor reports a case from Keilivay, in which the same point was decided. " More said that he could not do otherwise than he had done ; for when the plea was pleaded, the opinion of the court was, that though the arbitrator made an award before the day, but did not give any notice of it to the party, the award was void, to which the court agreed; and a void award und no award is the same thing ; therefore he might, by way of rejoinder, well show, that the arbitrator did not give any notice to the defendant of the award, in which case the award is void, and so no award in law, and therefore no departure. Bui the court said, it was a clear departure notwithstanding this reason ; for if the matter were so, the drfendant ought to have shown i Vor.. 1H II I- 234 CASES DETERMINED IN THE .Tune, 1808. in his plea, that he had not notice of it, and so have FOWLER helped himself at first." CLARK. In Morgan v. Man, I Sid. 180. S. C. Sir T. Raym. 94. it was adjudged, " that where to debt on bond, the de- fendant, after praying oyer of the'condition, which was for performance of an award, pleaded no award made; the plaintiff replied, and showed an award; the defend- ant rejoined, that other matters were referred, of which the arbitrators had taken no notice, and therefore it was no award ; and thereupon the plaintiff demurred. The court adjudged, that the rejoinder was a departure from the plea; for the defendant ought to have pleaded this special matter in his plea at first." The same point was decided in Harding v. Holmes^ 1 Wils. 122. In Praed v. The Duchess of Cumberland, 4 Term Reft. 585. to an action of debt on an annuity bond, the de- fendant pleaded, that no such memorial of the bond as is required to be enrolled by the statute of 17 Geo. III. was enrolled, Sec. before the commencement of the suit. The plaintiff replied, that a memorial of the bond was enrolled, which contained the day of the month, year, consideration, &c. The defendant rejoined, that true it was, the memorial of the bond was enrolled, 'but al- leged that the memorial did not set forth the considera- tion truly, &c. The court were clearly of opinion that the rejoinder was a departure from the plea, and in giving their opinion say, " that the plea of no memorial enroih d, like the plea of no award, or no cafiias ad tatisfacirndum, tenders issues in fact, and not in law." These are the words of Mr. Justice Sutler, an able and accurate lawyer. This judgment was afterwards affirmed in the Exchequer Chamber. 2 H. Bla. 280. In Kvd on Awards, 299, 300. it is said, " where the defendant pleads the common plea of no award, he can- SUPREME COURT OF ERRORS. 235 nx>t in general, aft?M- the replication, rejoin any thing June, 1808, else than that there was no sur/i award. If the award FOWLBR be void, he must demur; because a void award is no , v - CLARK. award, and the boi.d is not forfeited hy non-performance. He must not rejoin, that the award is void, because that is a departure from Jus plea." The exceptions to this general rule are: First, where the submission is general of all matter* in controversy, with a proviso that the award be made of the premises. The defendant, in such case, may plead that the arbitrators made no award of the pre- mises ; and if the award set forth in the replication do not comprehend all the subjects that were in contro- versy, he may rejoin that there were other things in controversy, of which the arbitrators had notice, and of which they made no award; concluding that therefore they made no award of the premises, which is so far from a departure from his plea, that it is a confirmation of it. Kijd on Awards, 300. Secondly, if the award was made by an umpire, and the defendant had only pleaded that the arbitrators made no award, he may, on the umpiruge being set forth, rejoin performance ; for that does not contradict his plea. Ibid. It was admitted on the argument in the court below, that if this rejoinder was a departure, the plaintiffs must have judgment. It is believed, that it is now proved, that a plea of no award intends no award in fact; and it follows, that an allegation in the rejoinder, that the defendant revoked, is a departure, and therefore re- quired no answer. 2. A rcplcader never shall be granted, when the issue urvl against the party tendering it. 256 CASES DETERMINED IN THE June, 1808. In Webster v. Bannister , Z>o,-. 396. Mr. Justice Bui' FowTER leT asked if this was not the rule; and said, he could v - find no case of an exception to it. Such an authority t/LARK. should have weight with the court, until the gentlemen opposed to us can show that it is not law. Is not the rule founded in good sense ? The defendant says by traversing the delivery of the note, deeds, &c. that " I am willing to try your right to recover on this note, by the trial of those facts." Those facts, by the verdict, are found against him ; and he now says, " I wish to try it on other facts." Surely, he may not thus trifle with the court, and his antagonist. It is admitted by the defendant's counsel, that the facts traversed were material; and if found for the de- fendants, would have effectually barred the plaintiff of a recovery. But as they have been found against them, they wish to try the case on other facts. In short, the plain language of the defendants is, " we have rejoined double, that is, we have alleged a revocation which is a material fact, and have also denied material allegations in your replication; the material allegations are found against us by verdict; we wish now to try the fact of revocation." The plaintiff answers to this, " your re- quest is unreasonable, and unsupported by the rules of pleading. You have confessedly made a double rejoin- der, which must have been held insufficient on demur- rer; because you had no right to put in issue two or more independent, distinct facts. We joined issue with you on facts admitted to be, material. You have, there- fore, tried your case on a material traverse, and have lost it. This is all that the law allows to any party ; and your only complaint is, that you have not had what is never indulged to others, the right of trying your case on several independent, substantive, and distinct grounds." We apprehend, that iio relief can be granted to the defendants, but on application for a new iria- SUPREME COURT OF ERRORS. 237 founded on their having missed their plea, for that they j un e, isos. should have put in issue tin fact of revocation. When such an application shall be made, the court will decide h on its merits, on principles applicable to new trials. There is one consideration that must settle this point, whether the rule laid down by Mr. Justice Butler be correct, or not : a repleader is never awarded in favour of a party tendering an issue, which is material) and which is found against him. There is not a shadow of support for the contrary position. The strongest case of a repleader to be found, is Tryon v. Carter, 2 Stra. 994. where to a bond conditioned for payment of money on or before the 5th of December, the defend- ant pleads payment on the 5th of December, and plain- tiff replies, and verdict for the plaintiff; there shall be a repleader, for it is an immaterial issue ; and it not appearing but that the money was paid before the 5th of December. On this case it may be remarked, first, that the repleader was not ordered on motion of him who tendered the issue. The plaintiff traversed the payment on the 5th; and the verdict was in favour of him, who made the denial or traverse of the defendant's plea. Had it been in favour of the defendant, who accepted the traverse, the decision would have been for him. Secondly, whenever this case is cited, it it> said, that if the issue had been in favour of the defend- ant, who accepted the traverse, no repleader would have been allowed. J'er Lord Mansfield, 1 Burr. 302. fccc. 3. The defendants have put in issue an acceptance of deeds from the plaintiff under this award, and in com- pliance therewith, and the issue is found against them; therefore, they are not at liberty to question its validity, or to say that they revoked the powers of the arbitra- tors. 238 CASES DETERMINED IN THE June, 1808. Thr principle that a subsequent ratification is equal FOWLER to a p ! ' lor auihority, will not be questioned. There are many cases in which a party is estopped to allege the V JL AK K. truth) and that by matters in fiais, as well as by matters of record. Com Dig. tit. Eatofifiel, (A. 3.) A man is es;o;..i.-d l ueny that A. B. is his tenant, having accepted rent from him. Co. Litt. 352. a. A wife brings dower and recovers; she shall be estopped afterwards to claim lands settled upon her for jointure. 4 Co. 5. Again, in debt for rent, by lessor against lessee, the lessee cannot say, that the lessor had no interest in the tenements; because by accepting a lease, or paying rent, he admits the title. Bull. JV. P. 170. Cooke v. Loxley, 5 Term Reft. 4. In ejectment by grantee against grantor, the defend- ant is estopped to say, that he had no title when he gave the deed. So the endorser of a note, in an action against him brought by the endorsee, cannot deny the execution of a note by the maker, but must pay it, if it is a forgery. Lambert v. Park, 1 Salk. 127. Again, a person will make a note his own, by admitting it due, though it were forged, or even by paying others simi- larly circumstanced. In Sorter v. Gingell, 3 Esfi. 60. Lord Kenyan ruled, that where the defendant had proved the bill in question a forgery, the plaintiff had done away that defence, by proving that he had in fact paid several bills in the same situation. Now, let us apply these doctrines to this case. The plaintiff demands of the defendants to pay him a sum awarded to him by arbitrators. The defendants say, "the arbitrators made no award; we are not, therefore, liable." The plaintiff says, " they did make an award ; and they awarded, that you should pay the note ; and that I should give you a deed of certain lands. I made and delivered the deed ; and you accepted it; and still you will not perform your part." The defendants an- swer, " we revoked the powers of the. arbitrators." If $ SUPREME COURT OF ERRORS, 239 the rejoinder had stopped here, would it not have beea June, 1808. insufficient, on the ground that it was incompetent for FOWLER the defendants to aver this, after admitting: that they , T> CLABK. had taken a deed under the award ? So their counsel thought ; and therefore added, in their rejoinder, to the allegation of revocation, a traverse of the delivery and acceptance of the deeds; and on this traverse, the facts in issue are found against them. On no principle, therefore, can they complain. If these observations are just, the defendants cannot have a repleader, on another plain principle of law, viz. that where a verdict has decided the rights of par- ties, and the court can see how to render a judgment, it shall be rendered either for the plaintiff or defendant, as to law appertains, notwithstanding any informality. In Rex v. Philifis, 1 Burr. 292. this principle is fully recognised in a great number of cases there cited ; also in Fitch v. Scott, \ Root, 351. 4. The allegation in this rejoinder that the defend- ants revoked, is to be entirely disregarded by the court, because it is mere inducement to the traverse. Here * the question is, in what light an inducement to a tra- vere is to be considered, according to the established rules of pleading? Judge Swift, in the second volume of his System, p. 219. says, " It is inconsistent to suppose, that the in- ducement to the traverse must contain facts that are traversable, when it is conceded that the party travers- ing does not rely upon the inducement, but upon the traverse. The parties cannot demur to an induce- ment for its insufficiency; because, if the traverse be taken to a material point, it is good. Nor can they traverse the inducement; because that would be a tra- verse upon a traverse. In all instances, where the -240 CASES DETERMINED IN THE June, 1803. traverse is properly taken, the opposite party must af- firm over the same facts. If we cannot demur to, nor OWLER v traverse an inducement, it is clear that it has no legal effect; and, if the party is bound to affirm over a mate- rial fact, when traversed, it is certain, that he does not admit the truth of the facts stated in the inducement. Upon these principles, I consider the inducement as mere form for the fmr/iose of introducing the traverse it- self; and whenever a party intends to deny a fact mate- rial, he may as well do it without as with an induce- ment. It' this opinion of Judge Swift be well founded, it is most apparent, that the case is with the plaintiff. But, it is said, that this opinion is erroneous. We admit, that there are cases, where the inducement may be traversed. There is no case, however, where it must be traversed. The general rule is, that it cannot be traversed. The exceptions to this general rulp, as will be clearly shov/n, do not affect, in any degree, the pre- sent case. All our elementary writers lay down the rule, as Judge Swift has, that an inducement is not tra- versablc, or in other words that there cannot be a tra- verse upon or after a traverse. The reason given must satisfy every lawyer, and every man of good discern- ment. If an inducement might be traversed, the plead- ings might be protracted in injinitum. Now, the ob- ject of all pleadings is to bring up a point, on which the ease ought to be decided ; and the party is always at liberty to select such point. When he has selected it, and joined issue upon it, he must be concluded thereby, ov no end would be put to the altercations of parties. The exceptions to this rule will, at once, evince the perfect propriety of it, and show that the judgment of ;he court below in this case is correct. First, attend to 'he rule. " If there be a traverse of a point apt and ma- SUPREME COURT OF ERRORS. 24 J. terial to the plaintiff's title, he cannot refuse it, June, 1808. and tender another traverse." Cum. Dig. tit. Pleader, p OWLEB (G. 17.) < 4 So a man cannot take a traverse upon T ' l_y L A RK . a traverse in any case, where the first traverse is ma- terial." Ibid. Now to the exceptions. ' A traverse after a traverse may be allowed, as where the plaintiff alleges a trespass in such a county; the defendant pleads a concord for trespass in every other county, and tra- verses the county ; the plaintiff may join issue on the county, or traverse the concord." Co. Litt. 282. b. " So in trespass on such a day, if the defendant pleads a li- cense such a day, and traverses all days before, or since, the plaintiff may traverse the license." Digby v. Fitzharbert, Hob. 104. " So in all cases where the traverse in the bar takes away the time or /ilace in the declaration, the plaintiff has his election to join issue on the traverse, or to traverse the inducement to the tra- verse alleged by the defendant. But when the induce- ment is made and concluded with a traverse of a title shown by the plaintiff, the plaintiff is enforced to main- tain his title, and not to traverse the inducement to the traverse." Chichcsley v. Thompson et al. Cro Car. 105- and Stockman v. Hamfiton, Cro. Car. 442. Here the rule and the exception are laid down with great pre- cision. If we advert to an established principle of law, viz. that time and filace, in tranaitory actions, are immaterial, we arc at once convinced of the reasonableness of this exception. Let us hear the remarks of Lord Coke, in his Commentary ufion Littleton, p. 282. b. " In an action upon the case, the plaintiff declared for speaking of slanderous words, which is transitory, and laid the words to be spoken in London; the defendant pleaded a cyn- cord for speaking of words in all the counties of En- gland, taring in London, and traversed the speaking of the words in London; the plaintiff, in his replication, Vox.. Ml I i 242 CASES DETERMINED IN THE June, 1808. denied the concord; whereupon the defendant de- FOWLER murred ; and judgment was given for the plaintiff. For CLARK. the court said, that if the concord in that case should not be traversed, it would follow, that by a new and subtile invention of pleading, an ancient principle in law (that for transitory causes of action the plaintiff might allege the same in what place or county he would) should be subverted, which ought not to be suffered; and therefore the judges of both courts allowed a tra- verse upon a traverse in that case : and the wisdom of the judges and sages of the law has always suppressed new and subtile inventions in derogation of the common law." This principle was recognised by the superior court in 1796, and by the court of errors in 1797, in the case of Fowler et al. v. Macomb, 2 Root, 388. It was an action of assumfisif upon a promissory writing. The plaintiffs averred, that the defendant promised (for a good consideration expressed) to receive twenty shares of national bank stock, on the 8th of January, 1793> and to pay at the rate of eighty-four and three quarters per cent, advance. They then averred, that at New-York, on said 8th day, Sec. the plaintiffs tendered said stock to the defendant, &c. The defendant pleaded, that by an ordinance of the United States Bank, which it was authorized to make, all transfers of stock were to be made at the United States Bank at Philadelphia; that the plaintiffs did tender certain certificates of bank stock in New-York, which the defendant refused to accept; and averred also, that the offering and tender of said certifi- cates in New- York was the same offering and tender al- leged in the declaration ; and traversed the allegation in the declaration, that the plaintiffs offered and tendered twenty shares of bank stock at New-York, as alleged in their declaration. To this plea the plaintiffs replied, ad- mitting the tender in New-York, as the defendant had confessed it, and alleging a tender in Philadelphia pre- cisely as the defendant in his plea claimed it ought to SUPREME COURT OF ERRORS. 243 have been; and then averred, that the offering and tender jurue, 1808. mentioned in the defendant's plea at Ne-a- York with the F OWL ~* offering and tender at Philadelphia were the same offering v - and tender mentioned in the declaration, and traversing that the offering and tender at Nrw-York were the of- fering and tender in the declaration. The defendant then went to issue upon the fact, whether the plaintiffs of- fered and tendered the bank stock at the United States Bank in Philadelphia, as they had alleged in their repli- cation. This issue was found in favour of the plaintiffs, and damages assessed. A motion was made to set aside this verdict, and enter up judgment for the defendant; for that it appeared from the whole record, that the de- claration was falsified. The plaintiffs opposed this mo- tion by saying, first, that this was a transitory action, and that the place was not material, until made so by the de- fendant's plea ; and when so made, it was competent to allege the true place, and that such an allegation was no departure, nor was the declaration falsified: secondly, that it appeared on the whole record, that the defendant had violated his contract ; that the plaintiffs had per- formed theirs; and that they, therefore, were entitled to retain their verdict. So both courts adjudged. The other exception to the rule, that there cannot be a traverse after a traverse, is where the first traverse is not to the point of the action : " As in waste for cut- ting down and selling trees; the defendant pleads that he med them for repairs, and traverses the selling ; the plaintiff may waive this, and traverse the using in repairs; for the first point was not material to the action ; it was surplusage in the declaration, and ought not to have been traversed, and the plaintiff might have demurred on the traverse." Digby v. Fitzharbcrt, Hob. 101. 104. ci ted Com. Dig. tit. Pleader, (G. 19.) Tn the case before the court, neither time nr place 244 CASES DETERMINED IN THE June, 1808. is concerned; and the defendants, by their rejoinder, FOWIJZR tender to the plaintiff an issue on a material point, and v - which, if found against him, would have been fatal to his case. By all the rules of pleading, then, the plaintiff was bound to accept this traverse ; and it being found for- him, he must have judgment. We will now consider some objections offered by the defendants' counsel on the former argument. The case of Richardtson et al. v. The Mayor and Commonalty f Orford, in the Exchequer Chamber, reported in 2 H, Bla. 182. was read as leaning against the doctrine for which we contend. It was an action of trespass, containing five counts, in two of which the plaintiffs alleged, that the defendants had fished in the several fisheries of the plaintiffs; in two other counts, the fishery was alleged to be the free fishery of the plaintiffs ; and in the fifth count, the defendants were charged with taking the fish of the plaintiffs. The defendants pleaded, that the place where, Sec. was an arm of the sea, Sec. in which all the subjects of the realm have a right to fish, Sec. and that the defendants, being subjects of the realm, fished, Sec. as veil they might. The replication stated, that the town of '.'ford, Sec. was an ancient town, Sec. and that the Mayor and Commonalty of said town had the sole and exclusive right, tfc. of fishing in the place alleged, &c. and had from beyond the memory of man,lsfc. and the replication con- cluded with a traverse of that part of the plea, which set up a right to fish, &c. in every subject of the realm. The rejoinder, after stating matters by way of induce- ment, deserted the traverse offered, and concluded by traversing the right of the Mayor and Commonalty of Qrffjrd immnnorially to fish in the place, tsfc. in severally . The plaintiffs demurred specially, alleging for cause, that the defendants had not taken issue on a material traverse offered; but had gone away therefrom, and at- tempted to take issue on other facts stated in the replica- tion. The court of King's Bench, as appears in 4 Term SUPREME COURT OF ERRORS. 245 Re/t. 437. gave judgment, that the rejoinder of the de- j un e, i808; fendants was insufficient, because the defendants should FowTsR have accepted the traverse, which the plaintiffs offered, f j T ARK for that it was material, and would decide the rights of the parties. In the Exchequer Chamber, the judgment of the King's Bench was reversed; and Eyre, Ch. J. gives the following opinion: "From the moment it appeared, that upon the pleadings the plaintiffs might have re- covered a verdict in an action of trespass, without having either possession or right, it seemed very diffi- cult to support the judgment. That the first traverse was of the right of all the king's subjects to fish in the arm of the sea, stated by the defendants; now this was clearly a bad and immaterial traverse, for it was not only a traverse of an inference of law, but it was so taken, that if at the trial it had been proved that it was the separate right of others, and not of the plaintiffs, the issue must have been found for the plaintiffs, not only without their being obliged to prove either possession or right, but where in fact they had neither possession nov right. That an immaterial traverse might be passed over, and the matter of the inducement traversed ; which had been properly done in this case by the de- fendants." This case, when examined, proves, that where the traverse offered is immaterial, the opposite party may leave it, and traverse the inducement. The only point of difference between the two courts was this The judges of the King's Bench said, that the first traverse was material; and, therefore, the defend- ants were bound to accept it; and as they had not, their rejoinder was bad on special demurrer. The judges of the Exchequer Chamber said, that the traverse was an inference of law,' and therefore bud ; and also immaterial, and therefore would not decide the merits of the case. The defendants then might well pas$ ver it, and traverse matter stated in the inducement: ,'S. as r-f hxv- hrfovr 'tutor 1 . ;IM ry< rption to the 246 CASES DETERMINED IN THE June, 1808. general rule, that a traverse after a traverse is bad. How, FOWLER then d es it kear on tn i s case V. But suppose the plaintiffs, instead of demurring to the defendants' rejoinder, had gone to issue on the traverse offered, to wit, the prescriptive right of the plaintiffs to the fishery, and the issue had been found for the plain- tiffs, that they had such right, we would inquire whether the defendants could have a repleader? Most unques- tionably not; for the case of the plaintiffs would have then been established, to wit, an exclusive right to the fishery; and yet, in the inducement to the traverse thus offered, they expressly allege a right, &c. in them as subjects of the realm to fish, &c. We wish for no better case to support our points than this ; and we are confident, that no lawyer can read the case cited atten- tively, and not at once say, that if the plaintiffs, instead of demurring, had joined issue, and that issue had been found for them, they must have judgment, notwithstand- ing the excellent matter in the inducement. In ThraU- et al. v. The Bishoji of London, 1 H. Bla. 376. Lord Longhborough makes the same remark, that an immaterial traverse may be passed by, and issue taken on a material fact. This is not denied. No addi- tional support is derived from this case. It is contended by the defendants' counsel, that though the issue might be considered as material without their inducement, yet that the fact of revocation rendered it immaterial. This is a novel idea ; and it is to be ex- pected, before it be assumed as a true position, that some authority to support it should be adduced. In Vesey v. Harris ct Ux. Cro. Car. 328. a scire facias was brought against husband and wife, alleging that she, while sole, recovered a judgment against the plaintiff, and had execution for 261. 1 3s. 6d. and obtained the 5 SfTPREME COURT OF ERRORS. 247 money, of which they were now possessed, and had af- June, 1808. terwards intermarried with the other defendant ; and p OWLER that the judgment had been since reversed ; praying for x restitution. The defendant pleaded, that after the reversal had, and before the purchase of this writ, he paid to the plaintiff the said 26/. 13*. 6d without this, that they are possessed of the said money as alleged. The plaintiff demurred specially. The court adjudged the plea bad, saying that though the payment was a good plea, yet being pleaded as inducement to an idle tra- verse, it was all bad. Here the court decided, that if the pleader alleges sufficient matter as inducement, and concludes with a traverse of an immaterial fact, it is bad pleading. How much stronger that than this case ! But to this novel doctrine, that a substantial allegation in the inducement renders the traverse immaterial, we answer, first, that if our third position be just, that a revocation cannot be alleged as a reason for not paying an award by him who has accepted a deed under the award, then, surely, the allegation is frivolous; for we presume it is not more substantial for being connect- ed with a traverse of an allegation made by the plain- tiff. Would not the rejoinder, then, have been insuffi- cient in this case, had it only averred, by way of answer to our replication, that the defendant revoked? This point has already been considered at large. But) secondly, this argument, to wit, that the traverse is rendered immaterial by the fact alleged in the induce- ment, is founded on a /ictitio firincifiii. \Ve say, that it is never allowed, under any circumstances, to allege a fact in that way ; and if it be so alleged, the opposite party cannot regard it ; but may, and, in case it be connected with a material traverse, must take no notice of it. The defendants answer, " You must answer ii, because it is well pleaded, and requires an answer/' in the vertj thing to ke firwrd. 248 CASES DETERMINED IN THE June, isos. It is finally said, that this rejoinder is only double, and is to be considered by the court precisely as though r o %v (. E R no traverse had been made. Here, it was asked in the court below, why the court -should be puzzled with names? In this rejoinder there is neither inducement, nor denial, but it was the duty of the plaintiff either to have demurred for duplicity, or to have gone to issue on u!l the facts alleged, and denied by the defendants. Tlds is breaking down the rules of pleading with a wit- ness. Forms are important to preserve substance; and in courts of justice the forms of justice are eminently useful. The answer to a declaration is, and, we hope, will continue to be, a plea; the answer to a plea, a re- plication; and an inducement to a traverse has been for centuries, and shall be, an inducement to a traverse, and not a general issue, special plea, or rebutter. To say, that this matter alleged before a traverse taken is not in- ducement, for the sake of extricating a party from bad pleading, is to innovate where innovation is little to be expected, and less needed. The next step will be, that a traverse is inducement, and inducement a traverse; and, indeed, this position asserts, that traversable mat- ter, and matter which cannot be traversed, are alike trrvcrsuble ; and, of course, that no land-mark in plead- ing remains. There is not a dictum to be found warrant- ing the idea, that matter alleged as inducement to a traverse, with the facts traversed, are together to stand as a plea, replication, or rejoinder, and to be an- swered as such. Such a rule would, at a stroke, de- stroy a rule of first importance, that all pleadings shall be so formed as to bring the parties to a point of law, or fact, or both. Ingersoll and Sta/ilcs, contra. In the view which we shall take of this case, we shall confine ourselves within narrow limits. The plain- SUPREME C^n*T OF ERRORS. 249 tiflT brings his action on a promissory note. The de- June, isos. fen-Jams do not deny that they made such a note, hut p ow 7^a Siv it was delivered as ar. escrow to enforce the perform- CLARK. arre <>i -0.11 award which was never uude. The plain- titt does not deny that the note was given for this pur- post, but, according to the course of pleading in such c~ses, replies over a i award, sets it out, and avers per- formance on his p..rt. The defendants, in their rejoin- der, allege a revocation ; and moreover deny, by a technical traverse, the j>tai'itifFs performance on his part. The plain ti ft' does not deny the revocation, but takes. issue on the facts traversed by the defendants. Now, if we look through these altercations of the parties, and take that to be true which is averred by one party, and not denied by the other, we shall find the case decided, before we come to the issue which was ulti- mately joined. These facts are, concisely, that the de- fendants made the note ; that they delivered it as an escrow to compel the performance of an award; and that before any award was made, they revoked the powers of the arbitrators. What the plaintiff did after- wards is of no consequence ; and the issue was wholly immaterial. The only question, then, is, whether the L s are so stated in these pleadings, that the court can look at them ? The court can clearly see that the note was made by the defendants ; and that it was delivered conditionally ; because these facts are distinctly alleged on the one hand, and not denied on the other. Why cannot the court as clearly see the other fact, viz. the fact of revocation ? Surely, not because it is not distinctly alleged on the one hand, nor because it is denied on the other. The only reason, which has been suggested, is drawn from the location of the averment : it is placed before a traverse. Good sense discovers no reason here. One party makes a claim. The opposite party alleges substantial matter in avoidance, and then denies certain facts, which, if his allegation he true, are of n* VOL iff Kk 250 CASES DETERMINED IN THE June, 1808. consequence. A common understanding does not per- FOWLER ceive how this denial can render the preceding allega- T - tion inoperative. But it is said, that in pleading there must not only be sufficient matter, hut it must be deduced and expressed according to the forms of law. A party can no more prevail without observing the latter, than if he is defi- cient in the former. After having been taught by authorities, which we could not but respect, that the rules of pleading are founded in sound sense and close logic, we shall be dis- posed to question the validity of any rules which are opposed to both. But we will inquire, whether there is any positive rule of law, that excused the plaintiff from answering our allegation, because it stood as induce- ment to a traverse. An inducement is said to be " the showing of cross matter contrary to the allegation of the adverse party." 5 Bac. Abr. 379. Givil. edit. Dyer, 365. Such matter may be, and often has been, tra- versed. 1 Tidd's Prac. 635. 1 H. Bla. 407. The truth is, that an inducement to a traverse may, or may not be traversed, according to the matter which it contains. We understand the decision of the Court of Exchequer Chamber in Richardson v. The Mayor and Commonalty of Orford, in error, to have proceeded on this ground. If, then, this allegation was traversable, the plaintiff, by passing it by unanswered, admitted it. Blake v. West et al. 1 Ld. Raym. 504. Nicholson v. Simfison^ 1 Stra. 297. Hudson v. Jones, I Salfc. 90. 5 Bac. Abr. 386. Gwil. edit. But, it is said, that this allegation is out of place on another ground, viz. that it is a departure from the plea. This is not very evident to " sound sense." The plea says, that there was no award made. The rejoinder fortifies this position, by averring, that the powers of the arbi- trators were revoked, so that none could be made. The SUPREME COURT OF ERRORS. 251 answer to this is a refinement, which, we presume, will June, 1808. never be adopted by our courts, viz. that when the Fo~wT defendant says, there was no award, he means some- T. CLAKK. thing more than that there was none which the law re- cognises as an award that there was no pretended award nothing which any body ever called an award. If the party means so, it is difficult to see why he should not be left to say so. What is the meaning of non eat factum, pleaded to a deed ? Is it confined to this, that the party never put his hand and seal to such an instru- ment ? Will not proof of a material alteration, of fraud, or of duress, support the plea ? Is not the legal effect to be regarded, rather than the vague meaning which may be attached to the words in common parlance ? But admitting this allegation in the rejoinder to be a departure from the plea, still we contend, that the defect can be taken advantage of only upon demurrer. In Praed v. Thr Dutchess of Cumberland, 4 Term Refi. 585. the demurrer was sfiecial. In a note to Richards et l. v. Hedges, 2 Wins. Sound. 84. d. the position is lai down in express terms, that " the only mode of taking advantage of a departure is by demurrer." After an issue formed, and a verdict, it is too late to take ad- vantage of a departure. Lee v. Raynes, Sir T. Raym. 86. BY THE COURT, unanimously. (a) A traverse properly taken to the material parts of a declaration, plea, replica* tion, 8cc. either forms an issue, or, if it concludes with a verification, renders it necessary for the other party to affirm the facts traversed, and join issue upon them. The defendants below, in their rejoinder, traversed a material part of the plaintiffs replication. The plain- tiff was bound to take issue upon it. Facts stated by way of inducement to a material traverse are not tra- () BALDWIN, J. did not sit in thii caae. 252 CASES DETERMINED IN THE June, 1808. versahlc. Of course, the party, by joining issue on the Fo WLKK ^ acts tr verset ^> does not admit the truth of the induce- ment. CLARK. Judgment affirmed. CATHARINE WALES, Administratrix of Rev. SAMUEL WALES, against AUNA W.TMORE, ROBERT W. WETMOHE, and VICTORY WETMORE, Administra- tors oi Rev. IZRAHIAH WETMOKE. If one re- MOTION for a new trial. . ci-ivcs m^ney of P 'i.ther for a specific pur- _ , . _ pose, and fails This was an action ot assumfitiit counting upon a re- pnt will ce *P l of the defendants' intestate in the following words: lie. Mitford, August 21*?, 1780. " Received of Mr. Samuel Wales twenty-two pounds, seventeen shillings, lawful money, which I have laid out for land in the township of Fairlee, in company with captain Robert Walker, and captain Joseph Walker, and Mr. David Judson and myself, in a tract of twelve hun- dred acres of land, for which we gave two dollars fter acre ; and the said Mr. Wales is to have his proportion of land on a division, in proportion to the said sum of twenty two pounds seventeen shillings, which he has advanced ; as witness my hand. Izrahiah Wetmore" The declaration negated the purchase of any lands by the deiendiints' intestate) and the repayment of the mo- SUPREME COURT OF ERRORS. 253 ney, and concluded with alleging an undertaking to re- Jane, 1808. pay the money and interest. WALES The defendants pleaded the general issue; and, on the trial, objected to the plaintiff's evidence, on the ground, that it appeared by the receipt recited in the declaration, that Mr. Wet-more received the money from Mr. Walts, as his agent; and, therefore, the action ought to have been an action of account. But the court overruled the ~ exception, and admitted the evidence ; and in their charge to the jury, instructed them, that it was not ne- cessary that the action should be account. The jury found for the plaintiff; whereupon the defendants moved for a new trial ; which motion was reserved for the con- sideration of the nine judges. Ingersoll, in support of the motion, insisted that, by the plaintiff's showing, Mr. Wetmore sustained the cha- racter of an agent; he was to purchase a distant tract of land, and transfer to Mr. Wales the part to which he should be entitled. This would be attended with trouble and expepse, for which he might justly claim a com- pensation. In such case, assum/isit is an improper ac- tion ; as it precludes the defendant from accounting on oath. Collins \. Phel/is^ lately decided in Hartford cmm- ty,(a) and Whitman v. Wads-worthy 2 Koot, 267. support this position. Daggett and Staples, contra. What was the object of this action ? The repetition of money paid on a consideration which had failed. The form is appropriate ; it is the one constantly used for thitt purpose. (a) Vide Appendix. 254 CASES DETERMINED IN THE June, 1808. Account is never permitted, except where the de- \V"ALES fendant ought to be allowed to substantiate charges for v - disbursements and services, by his own oath. Mr. Wet- WBTMORE. more was not entitled to any commissions ; for he per- formed no services ; he made no purchase, and convey- ed no title. Here was no promise to account. The undertaking, on the part of Mr. Wetmore^ was of a different nature. Suppose the action had been account; and Mr. Wetmore had proved, that he had purchased the land according to the writing, and tendered to Mr. Wales a deed of his proportion. This would be a good defence; and yet it could not be shown under any plea to an action of ac- count. This shows conclusively, that account is not adapted to the nature of the case. In Wetmore v. Woodbridge, Kirby, 164. there was a promise to account, which was found by the jury ; and yet the court held, that the plaintiff had his election t bring astumfitiit or account. The case cited goes much further than is necessary for us. By THE COURT, unanimously. The only question re- served in this case is, whether, upon the facts alleged in the declaration, an action of assumfisit could be maintan- ed? Not, whether an action of account would lie? In many cases, the plaintiff may have his election; and may seek redress, either by an action of assumfisit, or of account. If one receives money of another for an express pur- pose, and fails to apply it, assumfisit will lie. In this case, the money was received for a right in certain lands in the township of Fairlee, in Vermont, SUPREME COURT OF ERRORS. 355 which Mr. Wetmore claimed to have purchased pre- j une> tsos. vious to the date of the receipt; yet it is averred, that wITes no land had been purchased by him, nor any title offer- v. . . . WETMORE. ed to Mr. Hales. It appears, that the consideration wholly failed. If asxumfisit would not lie, the defendants might have demurred to the declaration, as the receipt was spread upon the face of the record. New trial not to be granted. JOSIAH LANE against JOHN COOK, jun. MOTION for a new trial. A recorcljthat the defendant P , in an action of This was an action ot book debt. book debt ap- peared, and pleaded that The defendant pleaded the general issue. On the he .;ed the trial, the defendant exhibited his account, and offered thing.but that evidence to support it; to which the defendant objected, ^ed Mm and on the ground that the account was res adjudicata. In j"lgment that the parties support of his objection, the defendant produced a were fully record of the city court of the city of New-Haven, in J^", J,'.'^! an action in which Coo* was plaintiff, and Lane defend- f'. ve .ganst him, in ano- ant. It was an action of book debt, in common form, ther action on demanding one hundred dollars. The plea was as fol- lows: " Mw-Ha-ven city, J/iril 13th, 1806. The defend- ant hi court defends, pleads and says, that he does not owe the plaintiff, in manner and form, as the plaintiff in his declaration hath alleged, but that the plaintiff owes him on book; and hereof puts himself on the court for trial." Issue was joined on this pica; and the court guvc judgment for Cook to recover the whole of his 256 CASES DETERMINED IN THE June, 180S. demand. That judgment was as follows: " At a city i ANE court holden within and for the city of New-Haven, in * the county of New-Haven, on the second Tuesday of COOK. May, one thousand eight hundred and six. John Co&Ar, jun of said city, plaintiff, versus Josiah Lane, of said city, defendant. In an action of debt on book, demand- ing one hundred dollars damages, as by writ of attach- ment, dated April llth, 1806. The parties appeared, and were joined in an issue of owe nothing, to the court; as by the pleadings of the parties at large, under hand, on file. The court having fully heard the parties there- on, do find, that the defendant does owe the plaintiff in manner and form as the plaintiff in his declaration hath alleged; and thereupon it is considered, that the plaintiff recover of the defendant one hundred dollars debt, and his cost, taxed," &c. The plaintiff, to repel the objection of the defendant, then stated, and offered to prove, that he was hindered from arriving in New- Haven at the time of the trial, and neglected to exhibit his account to be adjusted by said city court; so that said judgment was rendered wholly on the account of the then plaintiff. The superior court ruled, that the defendant's objec- tion was sufficient, holding that the judgment of the city court was conclusive upon the parties as to all mat- ters on book subsisting between them at the date of the writ in that action. They therefore rejected the evi- dence offered by the plaintiff, both in support of his ac- count, and relative to the former judgment; and the defendant obtained a verdict. For the rejection of this evidence, the plaintiff moved for a new trial; and the question was reserved for the opinion of the nine judges. SUPREME COURT OF ERRORS. 257 Goddard, in support of the motion, contended, j un e, 1808. 1. That a judgment generally, is not conclusive upon all the matters, which might have been proved under COOK. the issue; but that an inquiry may be gone into, to show what matters did in fact come in controversy, and were adjudicated upon. In support of this position, he relied upon Seddon et at. \. Tutofa 6 Term Refi. 607. 2. That in the case of book debt, an inquiry whether the defendant in the former action exhibited his account on the trial, is authorized by statute. Tit. 25. c. 1. s. 4. Ingerstll, contra, insisted, that from the record of the city court, it appeared, that Lane's account was then in controversy between the parties, and adjudicated upon by the court- No inquiry can be gone into, which will contradict the record. BY THE COURT. It appears by the record of the city eourt, that Lane, the defendant in that action, and plain- tiff in this, appeared in the court to defend, and pleaded that he owed the plaintiff nothing by book, but that the plaintiff owed him. The necessary legal inference, there. fore, is, that his book account was then submitted to the consideration and decision of that court. And the judgment states, that the court fully heard the parties in the premises; found that the defendant did owe ; and thereupon did consider, 8cc. This appearance and plea of Lane, and the judgment of the city court in that action, are conclusive upon the par. ties thereto, as to all mutters on book subsisting between them at the date of the writ, on which that judgment was rendered. The evidence offered by the pluimiff, before the superior court, was, therefore, properly re- jected. New trial not to be grant' VOL. nr i, i 258 CASES DETERMINED IN THE June, 1808. DAVID FANNING against JARED WILLCOX and LUKE PALMER. An actual ous* MOTION for a new trial. tor, and ad- lion 6 continu- This was an action of ejectment ; to which the gene- ed uninter ra j i ssue was pleaded, ruptedly for fifteen yfars, orilinaT nrn- On the trial, the plaintiff claimed the land in question prietor of his as d ev i see under the will of Thomas Fanning, deceased; right of entry, whether the to whom it had been appraised and set off under an exe- verstT fosse's- cution against Josefth Noyes. It was admitted, that the sion were by p j a j nt iff had a good and legal title, unless barred by the the same per- r ... son or per- statute of limitations. sons, for the whole term, or by different f^g defendants were in possession, as tenants under pei-sons, tor different por- Nathaniel Palmer. It appeared, that after the levy of Thomas Fanning ' execution,(a) Noyes continued in pos- session until within fifteen years of the time of bringing this action, but had gained no title. Nathanitl Palmer, having no title, then commenced an action of ejectment against Noyes for the land. Noyes suffered judgment to pass against him by default, and abandoned the land ; upon which Palmer took possession, without the levy of an execution. The court, in their charge to the jury, instructed them, that if they should find, that the plaintiff's record title \vas complete, and the defendants, or those under whom they claim, had no title of record, yet the law (a) It is not expressly stated in the motion that the levy of Fan- ring's execution took place, and the adverse possession of Noyes com- menced, more than fifteen years before the plaintiff brought his action; but this was the fact, and the case proceeds entirely upon the supposi- tion of its existence. R. SUPREME COURT OF ERRORS. 259 Was so, that if any other person had been in possession j un e, 1808. of the land, claiming adversely to the plaintiff's title, FANNIN{J and the possession of such person, together with the v possession of the defendants, and those under whom they claim, amounted to A period of more than fifteen years previous to the commencement of this action, during which the plaintiff was ousted of the possession, he was not entitled to recover. The jury found for the defend- ants ; and the plaintiff moved tor a new trial ; which, motion was reserved for the opinion of the nine judges. Goddard, in support of the motion, contended, that the plaintiff's record title being established, it was in- cumbent on the defendants to show, that they had since gained a title by possession. The law will not take away a title from one man, until it can vest it in another. Ingersoll, contra, insisted, that as the plaintiff had not made entry into this land within fifteen years next after his right of entry accrued, his title was for ever gone, by the positive provisions of the statute ;(a) and whether the defendants had any title, or not, was wholly immaterial. BY THE COURT. (6) Actual ouster, and adverse pos- session, of any lands, tenements, or hereditaments, for ifteen years after the title, or cause of action accrued, and. before suit brought, bars the plaintiff of his right of entry thereafter, whether the ouster and adverse pos- session be by the same person or persons, for the whole term of fifteen years, or by different persons for different periods, making fifteen years in the whole; provided, the disseisin and adverse possession have been continued and uninterrupted ; and provided, that the plaintiff docs not come within any of the exceptions (a) Stat. Conn. lit. 97- c. 3. . 2. (A) BRAIN EDO n<1 <.Hiswoi.u, Jv having been oonovrnad coun- el in tliii oaute, diil not it> CASES DETERMINED IN THE \ June, 1808. mentioned in the provisoes of the statute, extending the term of time, in which entry may be made. MUNSON V. New trial not to be granted. JOSEPH MUNSON against JABEZ MUNSON. A distribution WRIT of error. of the estate of a deceased person cannot Josefih Munson brought an action of assumfistt against distributors * Jabez Munson, alleging that Jabez Munson, their father, appointed by made his will, and thereby e;ave his estate to his wife the heirs and ... devisees. and children; that in order to have a just distribution A promise thereof, according to the will, the heirs and devisees by one of the entered into an agreement signed by each, appointing heirs to pay a sura of money Caleb jilting and Josefih Dorman to make such distribu- to his co- heir, . , . , . , in compliance tlon ) anc i bound themselves " to abide by, comply with, with the de- anc j p cr f or m, all the acts of said Ailing and Dorman, and termination of such distribu- all their orders, awards, and decrees, in making and tors, is with- ... ,. ... -., ,, .... out considera- finishing a distribution of said estate, and that their dis- tion, and void. tribution should be final upon all parties interested. 1 The declaration then stated, that Ming and Dorman accepted the trust, and soon afterwards made a just dis- tribution according to the will, reduced the same to wri- ting, and returned it to the court of probate, by whom it was accepted, approved, and recorded ; and that the dis tributo'rs awarded and decreed, in said distribution, that to make the parties interested equal, and to do justice according to the will, the defendant should pay to the plaintiff the sum of one hundred and one dollars of eighty-seven cents, the distributors finding, that the de- fendant had received so much out of the personal pro- perty belonging to said estate more than his share, and that the plaintiff wanted so much to make up his share SUPREME COURT OF ERRORS. 261 The declaration concluded, by alleging that the defendant j une , 1808. thereupon became liable to pay to the plaintiff said sum, and, in consideration thereof, assumed, &c. , v - MU.NSON. The defendant prayed oyer of the will; and then de- murred. The au/ierior court adjudged the declaration insuffi- cient, Staples, for the plaintiff, contended, that judgment ought to have been in his favour, 1. Because it was competent for the parties to make a distribution of this estate in any manner they chose, provided that, when done, it should be according to the -will. If they had made the distribution themselves, the property would have passed to the individuals respec- tively, to whom it should be allotted. That the distri- bution was made by persons appointed by them for that purpose, cannot make it less valid. Would not a court of chancery compel the parties to comply with the de- termination of these persons ? They have acted in pursuance of powers with which they were fully vested, and with which it was competent for the parties to vest them. 2. Because, on this declaration, the plaintiff might have proved an express promise, either written or purol; and he now has a right to say, that the defendant expressly promised to pay him this sum of money, in consideration of the defendant's having received more Ui an his share of the estate, and the plaintiff less than his share. Jltkins et Ux. v. Hilly Coiv/i. 284. Hawkca ft Ux. v. Sounder*, Coivfi. 289. This consideration is suffi- cient to support an express promise to pay. It certainly CA C FS DETERMINED TN THE June isns " nnt weakened by the pioceedii.gs and determination oi the distributors. MUVSON The case can scarcely be made plainer by argument. Jakez has got a hundred dollars of personal property belonging to their father's estate more than he was en- titled to have. He agrees with the rest of the heirs to submit it to A. and #., to say to whom this sum should be paid. A. and B. decide in favour of Joseph; and Jabez, in consideration thereof, promises to pay it over to Joseph. Why shall he not be holden to perform his promise ? JV. Smith and Denison, for the defendant. The assum/isit, which is raised in this declaration, is founded on the idea that the settlement of the estate of Jabrz Munson, deceased, here set forth, is good and valid. But this is a mode of settlement unknown to our law. It will not be claimed, that it has the sanction of immemorial usage, or of any rule of the common law. Does the statute authorize the heirs of an undivided estate to refer the distribution of it ? There are two modes of distribution pointed out by the statute. First, by distributors appointed by the judge of probate. This is not a case of that description. Distributors appointed by the judge of probate could not make such an order; nor would such an order, if accepted and approved, be binding upon the persons against whom it was made. Secondly, by agreement among the parties themselves, under hand and seal, and acknowledged, and recorded. Stat. Conn. tit. Estates Testate and Intestate, c. 1. s. 13. But it does not appear from this record, that the order or determination of these distributors was either sealed or acknowledged, by the distributors themselves, or by the heirs. Nothing has been done, then, which is of SUPREME COURT OF ERRORS. 263 any validity, or from which the law will imply a pro- June, 1 80S. mise. M UN sos V. MUNSOH. Can the plaintitrs claim be supported on the ground, that here was an arbitration ? T iis was not a proper subject for the award of arbitrators. An award cannot settle intestate estates. It cannot convey a title to the smallest portion of real estate. However ample might have been the powers of the arbitrators, they could not, as such, vest a separate title in any of the heirs. Tlv:re can be no liability to pay money in pursuance of an award, which cannot be carried into complete effect. Why should this circuitous method be supported ? It is loose and unsafe. No provision is made by law for recording the doings of arbitrators. The conse- quence of establishing this claim will be, that our titles to land, instead of being matters of record, will depend upon the awards of arbitrators. Admit, for the purposes of this argument, that dis- tributors appointed by the heirs could vest a title; it by no means would follow, that an order that one of the heirs should pay a sum of money to the other would be binding. An authority to divide does not include an authority to order that one of the heirs shall purchase the whole, or any part, of the estate of his en-heir. The powers of the distributors, as set forth in the de- claration* were limited to a distribution. They were not authorized to make any order, which they might think fit. It is said, by the plaintiff's counsel, that the promise set up in the declaration must now be taken to be an cxfirct9 promise. We admit it; but if the order of the distributors was not biuuui, there is no sufficient 264 CASES DETERMINED IN THE June, 1808. considera'ion for that promise. This is the true ground, on w h* c h tne declaration is ill. . By THE COURT, unanimously. The question that arises in this case is, whether the consideration alleged in the declaration is a good ground to support the promise _of the defendant. This consideration is the title and right in fee, which the defendant is supposed to have acquired in the lands set out, and distributed to him, by the award of said arbitrators. But the award conveyed no title. The transactions stated do not amount to a family settlement of the estate of said Jabez Munson, deceased. His estate re- mains yet unsettled, and, on application, is liable to be divided and distributed among the heirs or devisees, by freeholders appointed by the court of probate. * The consideration is wholly void, and not sufficient to support a prbmise, express or implied. Judgment affirmed! WILLIAM TALCOTT, Assignee of THOMAS SANFORD, jun. a Bankrupt, against JAMES GOODWIN, 2d. The assignee THIS was an action of ejectment. of a bankrupt, under the late defendant pleaded the general issue. On the States, rnust trial, the plaintiff, to show title in himself as assignee, in an action after having proved the commission and assignment, like any othr offered in evidence a copy of a deed from the records dS' b theT of the town of Hart f ord > duly certified by the town riginal deeds, clerk, from George Bull to the bankrupt, conveying the SUPREME COURT OF ERRORS. demanded premises. The plaintiff, at the same time, j une> 1808 proved, by one of the commissioners, and their secre- TA~!TOTT tary, that the original deed was not delivered to the com- v. , . .... , GOODWIN: missioners by the bankrupt, nor to the plaintiff by the commissioners. It also appeared, that the commis- sioners never demanded it of the bankrupt. The de- fendant objected to the admission of the copy in evi- dence, for that the plaintiff was bound by law to pro- duce the original. This objection prevailed; and the defendant obtained a verdict. The plaintiff moved for a new trial, on the ground that the court mistook the law in rejecting this evi- dence ; which motion was reserved for the Consideration of the nine judges. Goodrich and Divight, in support of the motion. It is a part of this case, that the plaintiff was not /io- aftsed of the original deed at the time he offered the copy in evidence. The question will then be, whether it was within his /tower; for if it was neither within his possession nor power, it will be admitted that a certified copy was evidence. By the 5th section of the late bankrupt law, it is made the duty of the commissioners to take all the estate, deeds, Sec. of the bankrupt, previous to the appointment of any assignee. By the 1 8th section, the correspond- ent duty of the bankrupt is declared to deliver up his estate, deeds, Sec. All this is to be done between the commissioners and the bankrupt; the assignee, of course, can have no concern in the transaction. By another section, the commissioners are directed to as- sign all the bankrupt's effects " aforesaid" to the as- signee. He takes only what they give. The commis- sioners may examine the bankrupt upon oath, and if he VOL. III. M m 256 CASES DETERMINED IN THE June, 1808. refuses to answer fully, may imprison him ; but the as- nas no such auihority. V. GOODWIN. Further, the commissioners, by the 17th section of the bankrupt act, are authorized to make special assign- ments of property fraudulently conveyed by the bankrupt prior to his becoming bankrupt. This kind of property would rarely, if ever, be the subject of inquiry, at the time of surrendering. If it were, it is questionable whether the bankrupt could be compelled to accuse him- self of fraud. But it would often not be discovered, until the commissioners had taken possession of the estate; perhaps not until after the bankrupt had obtained his certificate. At any rate, the commissioners would never demand, and, of course, the bankrupt would not deliver, deeds of land thus conveyed. There is another consideration, which must be deci- sive of this case. The assignee comes in by operation of law; and therefore is not bound to have possession of the deeds. The statute transfers the property to the as- signee for the benefit of the creditors. Should the bankrupt refuse to deliver up his notes and bonds, the assignee still could recover the debts; if the bankrupt should refuse to deliver up his deeds, the assignee, for the same reason, could recover his lands. Gray v. Fielder, Cro. Car. 209. Stockman v Hamfiton, Cro. Car. 442. 1 Cooke'* B. L. [17.] 13 Eliz. [24.] 1 Jac. I. [32.] 21 Jac. I. [35.] 5 Geo. II. Ingersoll and Daggett, contra, insisted that the evi- dence offered was opposed to two established principles of law; 1. That the best evidence, which the nature of the ease will allow, shall be required. 2. That the subscribing witnesses to an instrument shall be called. SUPREME COURT OF ERRORS. 267 They then went into a full examination of the provi- June, 1808. sions of the bankrupt law, particularly those in the TALCOTT 2d, 3d, 5th, 6th, 7th, 18th, 20th, 22d, and 36th sec- tions, to show that no inconvenience would arise from a strict adherence to the general rules of evidence. BY THE COURT. It is a well known rule in real ac- tions, that the plaintiff must recover by the strength of his own title, and not by the weakness of the defendant's. When he claims by a deed of feoffment, it is necessary for him to produce on trial the original instrument, and prove the execution and recording in the manner re- quired by law; unless he can show it has been lost or destroyed by time or accident, or that it is in the pos- session of the defendant, or some other person out of his reach and control. But when it becomes necessary to trace a title through sundry prior conveyances, then, as it has never been practised here for purchasers to take the title deeds, and as all deeds are required to be recorded, we have admitted copies from the records to be given in evidence. These are deemed firima facie evidence, and the party producing them is not bound to prove their execution. If the other party contests it, the burden of proof devolves on him. In this case, the plaintiff stood in the place of the bankrupt, Sanford. He claimed by virtue of a general assignment of all his estate. To make out a title in himself, he must show a title in Sanford; and, of course, it was as essential to produce the original deed, and prove the execution in the same manner as if Sanford had been the plaintiff on the record. If the deed had been lost, or destroyed, or out of the power of the plain- tiff, he might have resorted to secondary evidence. But as it does not appear but that it was in his power to have produced the original deed in court, it was not compe- tent for him to resort to a copy. New trial not to be granted. 268 CASES DETERMINED IN THE June, 1808. BENJAMIN SMITH and EBENEZER WILSON, Executors of SETH BIRD, deceased, against DAM BEACH. A corrupt a - MOTION for a new trial. greement, in which the minds of the pat-ties meet, This was an action on a promissory note, executed consUtute r> u- b X tne defendant, to Selh Bird, the plaintiffs' testator, sury. There- fore, where more than The defendant pleaded usury, alleging, in the usual lawful interest was reser- form, a corrupt agreement. Ted with the knowledge of but wtthout O tne iria ^ il appeared, that more than lawful inte- theknowledge rest was rese rved in the note: but that the defendant did of the bor- . rower, it was not know of such reservation, until some time after the transaction 1116 note was executed, and delivered. The plaintiffs contended was not usu- that, under these circumstances, the note was not usuri- rions. ous. But the court directed the jury, that if they found that Bird, the payee, knew of the illegal reservation, at the time of the execution and delivery, they must find the issue in favour of the defendant. The jury found a verdict for the defendant accordingly; whereupon the plaintiffs moved for a new trial, which motion was reserved for the opinion of the nine judges. Gould, in support of the motion. The statute, upon which the defendant's plea is founded, declares, that all securities made for the payment of money lent ufion or for usury, whereby" there shall be reserved above tlve rate of six dollars in the hundred, shall be void. (a) To bring this case within the statute, it must be shown, that there was a loan upon usury, as well as a reservation of more than six fier cent. What is the precise mean- Co) fitat. Conn. tit. 170. s. 2. SUPREME COURT OF ERRORS. 269 ing of the term usury the statute does not point out, Jane, isos. but leaves it to be defined by the common law. This al- SMITH ways speaks of usury as implying a contract. 2 Bla. COOT. JJ E ! cff 454. 4 Bla. Com. 156. 5 Sac. Abr. 405. But a contract always supposes a mutual consent of the parties. In. this case, the defendant did not, and could not, consent to the unlawful reservation, as he did not know that such reservation was made. To show, that the fiayee had knowledge of it, may conduce to show, that he acted fraudulently in the transaction ; and such fraud may be a proper ground of relief in a court of chan- cery. If more than legal interest had been reserved by mistake, it clearly would not be usurious. This point has been settled by repeated decisions. Nevison v. Whitley, Cro. Car. 501. Booth v. Cook, Freem. 264. jil. 286. Bush v. Buckingham, 2 Vent. 83. But why has this class of cases been held not to be within the statutes against usury? Because a corru/it agreement was wanting. So long as there was no corrupt agreement between the parties, the knowledge of the payee, or his private intentions, can have no effect in this case. There must be the same corrupt agreement to con- stitute a usurious reservation as a usurious taking. But if one were to take more than lawful interest byfurce, it will not be contended, that he would thereby sub- ject himself to the penalties of usury. It is essential to the substance of the plea, that it allege gavel corrufite agreatum fuit. Com. Uig.m. Plea- der, (2 W. 23.) ArvMon v. ll'hitley, Cro. Cur. 501. This form of the plea may be seen in Lilly's Ent^ 183, 184. Ciift. 182. las. Lib. Plac. 146./J/. 71. Id. 156. fit. 99. 270 June, 1808. SMITH v. BEACH. CASES DETERMTN ED IN THE But there is one consideration, which must be de- cisive. The issue in this case is, that it was corruptly agreed, i9*c. This issue could not be found for the de- fendant, upon the facts stated. The direction of the court to the jury, therefore, was erroneous. A. Smith, contra. The object of the statute, as appears from the very title, was to restrain excessive tosury. The first section prohibits the taking of more than six fier cent, fier an- num for giving day of payment. By the second section, securities, in which is included more than at the rate of six 1 fier cent, are declared to be void. Such is the secu- rity in this case. Here was a loan, a giving day of pay- ment, and a reservation of more than lawful interest. What more was necessary to bring the case within the statute? It is claimed by the plaintiffs' counsel, that the defendant ought to have fcjioivn that more than lawful interest was reserved. But it is to be remembered, that he was the borrower, and that the statute was made for his benefit and protection, and was designed to operate exclusively against the lender. If, out of regard to the borrower, the statute would render void a security given "by him understanding^ and voluntarily for the payment of unlawful interest, there can be no reason why a similar security, given ignorantly and undesignedly, should not be equally void. As to the lender, no favour ought to be shown towards him, on account of the bor- rower's ignorance. If he understood the nature of the transaction, it is sufficient at least as against him. The case of Bush v. Buckingham, read by the plain- tiffs' counsel, is not applicable to the present question. There the plaintiff did not know of the unlawful reser- vati6n. It was not made by his consent. SUPREME COURT OF ERRORS. 271 BEACH. It is said, there must be a corrupt agreement. By June, i808. this, however, we are not to understand, an agreement <,~ which is in itself immoral, or corrupt inforo conscientia, It is in contemplation of law corrupt, when the statute is violated. It was proper for the court to leave it to the jury to decide, whether the reservation, which was admitted to be above the legal interest, was niide with the knowledge and consent of the plaintiffs' testator; and if it was, it follows that it was by a corrupt agree- ment. BY THE COURT, unanimously. A corrupt agreement is essential to constitute usury; and to form a corrupt agreement, as in all other contracts, the minds of the parties must meet. The assent of Beach was, therefore, as essential to the existence of a usurious agreement as that of Bird. From these premises it follows, as an undeniable consequence, that there could be no corrupt agreement while either of the parties remained ignorant of the excessive reservation; and the jury ought to have been so instructed. New trial to be granted. 272 CASES DETERMINED IN THE June, 1808. ROBFRT BIRD, HENRY M. BIRD and BENJAMIN SA- VAGE againat JOSHUA HEMPSTEAD and JOHN 1. CLAHK. Under the MOTION for a new trial. latt- ba- kriipt law of the UnitedS atea, The nature of this action, which has twice been be- a right of HC- ' . tion founded tore the sufirtme court of errors, is concisely stated, Sot* IMS ty ante ^ vo1 ' 2 - P- 293 ' Hemfistead, one of the defendants, the general h a( j jjej s i nce the commencement of the suit. On the assignment of the bank- reversal in 1806, the cause was remanded to the sufie- tnThe assign- rzor court next thereafter held in New~London county, ees - where it was again tried. On that trial, the defendant In an action offered to prove, that since the first trial of this cause, takingand de- Robert Bird, one of the plaintiffs, had become bankrupt, it "was 3 held* anc * nac ' assl g nec ^ his effects under a commission of bank- that the plain- rupt duly issued in the district of New-York. To the tin WAS en- titled to give admission of this evidence the plaintiffs objected; and ^ court ruled it out. plevin by C. athird p. i-son, . a replevin In the progress of the trial, the plaintiffs offered in Rp'd* 72 an d ** mav De ne ^ in the custody of the law, till the final trial of the suit on which it is at- tached But, if it is permitted that the claimant (where the defendant in the suit on which the goods are attached consents) may, by replevin in his name, regain the gooc's, all the damage that arises from the deten- tion is avoided. No case can exhibit this advantage in a more striking manner, than that under consideration. Clark, to secure a debt of ten thousand dollars, due from Miller, attached a vessel and cargo ready to sail, worth thirty thousand dollars, which was the property of Bird, Savage & Co. If this vessel had not been replevied by them, in the name of Miller, then Clark would have been liable for the value of the pro- perty, as well as damages for defeating the voyage; but by admitting the replevin, he will recover on the replevin bond the whole sum recovered against him in this action; so that he can try the question, whether the proptrty of the vessel was in Miller, without any ex- pense, save that of the cost of trial. For the proceed- ings in replevin are not admitted as a basis on which to recover damages, but to limit the extent, where the value of the property is more than the amount of the debt, for which it is attached. But, if the value of the property be less than the debt demanded, then the de- fendant will be entitled to recover the value only; and the replevin is given in evidence merely for the purpose of showing, that the plaintiff has regained his property in such manner as dees not excuse the defendant from the injury done him by the wrongful attachment. If the plaintiffs, instead of replevying the vessel, had given a receipt to the officer, with an engagement to have it forthcoming on the execution when demanded, and then had taken the possession again, it is evident, that SUPREME COURT OF ERRORS. 277 in an action of trespass for taking the vessel, they might June > 1808> have proved this fact, in order to show that they did not BIRD regain their property in such manner as to excuse the CLARK. defendant from the trespass. There can be no differ- ence in principle, between the proceeding to regain one's property, and the process by replevin. Another ground of the present motion is, that the court directed the jury, that it was a question of pro- perty only. The defendant urged, that the plaintiffs had only a mortgaged right to the vessel, and was not in actual possession; and, therefore, if he had the pro- perty, he could not maintain trespass, but trover only, on the principle laid down by Lord Kenyan, in Ward v. Macauley, 4 Term Rrfi. 489. that trespass is founded on possession, and trover on property; that where the plain- tiff has not the possession, he cannot maintain trespass, but must bring trover. But Lord Kenyan afterwards re- tracted this doctrine in Gordon v. Harfier, 7 Term Reji. 9. The true principle is laid down by Williams, in his notes to Sounders' a Refiorta. Note (l) to Wilbraham v. Snow, 2 Wins. Saund. 47. a. In order to maintain trover, it is necessary, that the plaintiff should have either a special or absolute property in the goods which are the subject of the action. He who has the absolute or gene- ral property, may support this action, though he had never had the actual possession; for it is a rule of law, that the property of personal chattels draws to it the possession, so that the owner may bring either trespass, or trover, at his election, against a stranger who takes them away. It appears, that the ship in question, for a valuable consideration, was assigned by Miller to the plaintiffs, by an instrument in the nature of a bottomry bond, granting them the exclusive right to her during a voyage from Nfu-Yorlc to New- London, and thence to London. 278 CASES DETERMINED, Sec. June, 1808. The plaintiffs had a right of possession, if they had a REGULA right of property ; and, of course, their right to recover GENERATES. ( i e p enc i et i O n the question of property. New trial not to be granted. REGULA GENERALES. 1. IN all cases before the superior court, where the de- fendant pleads the general issue, and intends to rely upon a defence, which, by the rules of the common law, ought to have been spread upon the record, by spe- cial pleadings ; and in all cases founded upon an express contract, where the defence proceeds upon the ground of the existence in fact of the contract between the par- ties, but attempts to avoid the effect of it, by matter arising at the time of entering into the contractor sub- sequent thereto, he shall give notice in writing of such his intention, at the time when by the rule of the court, he is bound to plead, and state therein the ground of his defence; from which defence, so notified, the de- fendant shall not be at liberty to depart, on the trial, and insist upon another defence. This notice, however, shall not be construed to admit, as special pleadings would do, the truth of the facts alleged in the plaintiff's declaration. 2. All motions, and other matters, reserved, on the circuits, for argument before the nine judges, shall be entered in the docket of the su/ireme court of errors, at the next succeeding term, before the second opening of the court. 1 CASES ARGUED AND DETERMINED IN THE CIRCUIT COURT OF THE UNITED STATES, HOLDEN AT HARTFORD, WITHIN AND FOR THB DISTRICT OF CONNECTICUT, SEPTEMBER, 1808. f BROCKHOLST LIVINGSTON, PSESEXT HON- 1 Associate Justice of the Supreme (. Court of the United States. fPIERPONT EDWARDS, N.^ District Judge for the District (_of Connecticut. RHINELANDKR, HARTSHORNK and others against PELRG September, 1808. P. SANFOUD and others. _ BRISTOL moved ore lenu* for the appointment of a A motion for guardian to Peleg P. Sanfordj one of the defendants, ^ent "''of '"a who was a minor. guardian to an infant jmrtv, must be in LIVINGSTON. J. This motion is too loose. When- wrltl "K |d must state the ever there is an application for the appointment of a name of the , . . pei-son pro- guardian, even firo hac vicr, it must be by a petition in p ed, ami his writing, therein naming the person proposed, and sta- ' jUJJj' ** his consent to be appointed. Motion denied. 280 CASES DETERMINED IN THE September, 1808. NATHAN SMITH against JACOB BARKER. An affidavit GODDARD, in support of a motion for the continuance in support of Q f tn j s cause rea( j an affidavit of the absence of a a motion to put off a cause witness, for the ab- sence of a witness, can- Daggett, contra, contended, that there had been neg- plained by ligence in procuring the attendance of the witness. mutters ex- trinsie. Goddard was about to make some remarks in expla- nation; when he was interrupted by LIVINGSTON, J. When an affidavit is relied upon, the court will not go out of it. I shall, therefore, decline hearing any ore tenus explanation. The name of the witness must always be disclosed in the affidavit, unless there are circumstances to show that the party, without any fault of his, was unable to learn his name. Hereafter, when a cause is ready for trial, no applica- tion for a continuance will be successful, unless upon an affidavit conformable to the English practice. His honour remarked upon the inconveniences of putting off a cause ready for trial, in this court ; and said, the En- glish courts, and the courts in those states which follow the English practice, were growing more strict upon this subject. CIRCUIT- COURT OF THE UNITED STATES. 281 September, 1808. BENJAMIN BISSELL and others against ELIHU HORTON. THIS was an action of ejectment for lands in Hebron, in an action of in the state of Connecticut, alleging that the defendant ^mls^n' 1 Cm- ousted the plaintiffs of the demanded premises eighteen necticut, of which the He- months before the commencement of the action, and had fendwnt had ever since remained in possession. plaintiff* i's months be- P , P , fre, and eon- JDuna and Gilbert, of counsel for the defendant, tinued in i>os- moved to erase this cause from the docket, on the ^g 810 ",']^^ ground, that from the description of the parties, it did were de- . ,. . _,, scribed as citi- not appear to be within the jurisdiction ot the court. 1 he zens O f plaintiffs were described thus : " Benjamin Bissell, late of Hebron, in the county of Tolland, in the state of and the defen- Connecticut, now of Saint-Johnsbury, in the county of daiit was de- Caledonia, in the state of Vermont, a citizen of the state ^ zen a f s , f a of Vermont, Abel Biasell, Hezekiah Biaaell, Elijah House. ?. dwelling Francis Norton, John Thomfison Peters, of said Hebron^ ('uiini-cti i * wmr-,, c i rr i r /,- Held that the and Asa Willey, late of said Hebron, now ot Ellington, ,,|.,j llt jftv Wt . re in the county of Tolland aforesaid, citizens of the state " r l ' ltlzcns of ' Vermont, ror of Connecticut." The defendant was described as fol- ll|t ' detendant lows: " Elihu Horton, of Greenfield, in the county of jNi-w York, Saratoga, in the state of New- York, a citizen of the ^^JSmJoJ* 16 state of New-York, now dwelling in said Hebron." To and laws ofihe UnitedStates; support the jurisdiction, it ought to appear, either that and that the the plaintiffs are citizens of Vermont, and the defendant foi^'was'^ot a citizen of Connecticut, or that the plaintiffs are citizens ". 1|1 ! 1 " tlie J u " nsdlrtioil nt of Connecticut, and the defendant a citizen of New-York, this court. The first part of the alternative is not true ; for all the plaintiffs, except one, are described as residing in Con- necticut, and are averred to be citizens of Connecticut. The second part of the alternative is equally ground- less ; for it is averred, that the defendant is now dwell- ing in Hebron, in this state. VOL. HT. Oo CASES DETERMINED IN THE September, 1808. BISSELL V. HoRTON. J. T. Peters, contra, insisted, that as the defendant was expressly averred to be a citizen of Nev>- York, he must be so considered, notwithstanding his residence in Hebron at the time of commencing the suit. He might be transiently dwelling there, without any determina- tion to remain there permanently. It will be admitted, that he is still a cidzen of New- York< unless he has be- come a citizen of Connecticut; but a transient residence here will not make him such. The word " citizen,'* within the intent and meaning of the constitution and laws of the United States, in regard to this subject, has reference to such persons only as have the rights of freemen, and are eligible to civil offices, within tht Dis- trict where they dwell. But it does not appear, that the defendant has any such rights and qualifications in this state. LIVINGSTON, J. The rights of suffrage and eligibili- ty to office are of no weight in the decision of this point: it is to be determined on other grounds. The plaintiffs are partly in Vermont, and partly in Connecticut. They are not, therefore, citizens of Vermont within the con- stitution and laws of the United States. With regard to the defendant, it is admitted, that he now resides in Connecticut, and has resided here during the time in whiih he has been in possession of the demanded pre- mises ; which clearly evinces a determination in him to remain here permanently. Per Curiam. Let the cause be erased from the docket. CIRCUIT COURT OF THE UNITED STATES. 283 September, 1 81 >8. UNITED STATES against JOSEPH PORTER. THIS was an indictment charging, " That before, on, part he 8 7 ate a and ever since the first day of February last, the public a contract, which, from highway from the city of Nrw -York, on the road through evidence ex- Danbury, Litchfictd, and Farmington, and from thence trial.^appears to Hartford, by force of the several acts of the congress * na . ve be j- u in writing, he of the United States relating to post-offices and post- must either , - produce it, or roads, was made, and still is, a post-road designated for show that it is the transportation of the public mails of the United "^p 1 ",, pr ^! States; and during all the period from and after the first (luce it; other- wise, no proot day of December, in the year 1806, until the first clay of of its execu- Afiril, in the year 1807, certain persons were, in virtue "e n l tswil| C be of the provisions of the suid several acts of the said l%eceived - congress of the United States, authorized, employed and An allegation 1 in an iudict- bound by contracts lawfully made by and with the post- m ent, which master-general of the United States, to transport and is " ot im P er _ ti - nent or fo- carry the suid public mails of the United States from the reign to tn said city of Netv-York to the city of Hartford, and from be^p'rovcd" thence back to said city of New-York, on the route ^jll,* P |J through Danbury, Litchfield, and Farmington; that on the 8ame otf ft-IICl- ll.lli'lt the thirty-first day of January now last past, in a cer- be supported tain four-wheeled carriage, for that purpose provided, and drawn by four horses, they, the said persons so as aforesaid by the suid postmaster-general authorized and employed, were, in compliance with and fulfilment of their said engagements, transporting a public mail of the United States from the city of New- York to said city of Hartford, one Isaac Kclhgg, a mail- carrier, law- fully employed, and sworn to a faithful discharge of his said duty as such, as the laws of the said United States require, then having the care and charge of the said mail, carriage and horses, so as aforesaid used and em- ployed in the transportation of said public mail : that at Farmington aforesaid, on the 31st of January, and 1st 284 CASES DETERMINED IN THE 1808 UNITED STATES v. PORTER. September, of February, now last past, Joseph Porter of Farming- ton aforesaid, being not ignorant -of, hut well knowing, all the facts herein before stated, with intent unlawfully and wilfully to obstruct, retard, hinder and stop the passage of said public mail of the United States, then and there, with force and arms, did seize and stop said horses, and carriage in which said mail was then de- posited ; and with like force and arms, violence and, strong hand, did seize the said Isaac Kellogg, then having the care and charge of said public mail, transported as aforesaid, and then in the act of driving and guiding said horses, and transporting said mail in the public highway, and on said post-road, on the route aforesaid ; and said driver, horses and carriage, with said public mail, did stop, and forcibly drag said mail-carrier from said carriage, and then, at Farmington aforesaid, him the said mail-carrier, with said public mail of the United States, and horses and carriage used in transporting the same, did knowingly and wilfully obstruct) stop, and de- *ain, for a long time, to wit? for the space of more than fifteen hours ; contrary to the form, force, and effect of the act of the congress of the United States, in such case made, and then in force, entitled an act to esta- blish the f lost-office of the United States" [St&t. U. S. vol. 4. p. 505.] The defendant pleaded not guilty. The District Attorney offered a witness to prove the contract with the postmaster-general for the tran spolia- tion of the mail, stated in the indictment. He was sworn, and was about to testify to the terms of the con- tract, when LIVINGSTON, J. inquired, if it was in writing ? The witness answered, yes. CIRCUIT COURT OF THE UNITFD STATES. Dagge(t, for the defendant, objected to any parol evidence of this contract, insisting that the writing it- sell ought to be produced. The District Attorney sairl, it was in the hands of one Ely, of New-York, who refused to give it up; and We could not compel him to produce it. LIVINGS i ON, J. said, Mr. Attorney had shown, that it could be produced; he had named the person who had it, and stated where he lived. Mr. Attorney ought to have compelled Ely to attend, and produce the contract. Nothing is clearer than that proof of the contents of a writing canno' be received, unless it be shown that it could not be produced. Per Curiam. The evidence offered is inadmissible. Wolcott, for the prosecution. We shall take this ground, that the allegation in the indictment of a con- tract with the postmaster-general is mere surplusage ; and, consequently, that no proof of it is necessary. The words of the statute are " That if any person shall knowingly and wilfully obstruct or retard the pas- sage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same, he shall, upn conviction, for every such offence, pay a fine," 8cc. [Section 3. Stat. U. S. vol. 4. p. 506.] That the mail should be carried in pursuance of a contract with the postmaster-general is a qualification not found in the statute. The mail is, in fact, carried on some of the most important routes in the United States^ without any previous contract. It is so carried between Baltimore uud I'tiilu'lrlfihidi and between the city cf Wa*/rington and M"ewOrlcann. There cannot be a doubt, whether if the mail be obstructed on tlx sc routes, the prn.tliy shall accrue. If we prove all that is necc ^urv to subject the 285 1 SOS. - UNITED STATES V 286 CASES DETERMINED IN THE September, defendant, there must be a verdict against him, whether 1808 other .matters stated in the indictment be proved, or ,uot. TJ VI TED STATES V PORTER. Daggctt) in reply. This allegation is not imjiertinent matter; it is, in no sense, foreign to the cau^e. The ob- struction, contemplated by the statute, is of a mail car- ried by the direction, and under the authority, of the postmaster-general. The indictment sets forth the manner, in which such direction was given, in which such authority was derived. Now, though this allega- tion be more particular than it was necessary it should be, yet having been made, it must be proved. This is the rule even in civil cases. Bristow v. Wright^ Doug. 665. It applies more strictly in criminal cases. EDWARDS, J was of opinion, that no prosecution for obstructing the passage of the mail could be supported, without showing a written contract with the postmaster- general. LIVINGSTON, J. inclined to think, that an indictment might be so framed as to subject the defendant, without proof of a written contract ; yet as this indictment states a contract, which is not impertinent or foreign to the cause, he was clearly of opinion that it ought to be proved. The court will be more strict, he added, in re- quiring proof of the matters alleged in a criminal than in a civil case. The District Attorney rose, and said he would enter a nolle prosequi. . , LIVINGSTON, J. observed, that the defendant was en- titled to a verdict of acquittal, if he wished it. The defendant's counsel said, he wished for a verdict 1 CIRCUIT COURT OF THE UNITED STATES. 287 LIVINGSTON, J. then addressed the jury thus: No September, evidence at all being adduced against the defendant, it ; will be your duty, without leaving your seats, to find a JJ^J'JJ verdict of not guilty. v. PORTER.- The jury immediately found a verdict accordingly. The District Attorney and Wolcott, for the prosecu- tion. Goodrich) Daggett and Dwight, for the defendant. TIMOTHT LESTER against FREDERICK STANLE\. AFTER this case had been committed to the jury, If the jury separate alter and they were about to retire, LIVINGSTON, J. remarked, a case is coin- that he understood it had sometimes been the practice [' e 1 ^ an , ( j, with juries in this state to separate while they had a fore l j ey ;Jj av * case under consideration. The rule of the common law verdict and afterwards re- requires them to be kept together until they have turn a verdict, agreed on a verdict; and on looking at the statute, we ^JJ. do not perceive that that varies it. The statute, indeed, appears to have been made in affirmance of the common law. The words are explicit: "And when the court have committed any case to the consideration of the jury, the jury shall be confined, under the custody of an officer appointed by the court, until they are agreed on a verdict."(a) If they separate before, and after- wards return a verdict, it will be set aside. (a") Tit. 6. ch. 1. . II. This clauie was passed as early, al least, as 17 JticJiurd Skinner, a constable and officer of the v. court, was charged to go out with them, ami attend them under their STAMLEY. confinement, until they should have agreed on their verdict. The court then adjourned until the next morning ; when the officer came into court, and gave information, that the jury, on the preceding eve- ning, before they had agreed on any verdict, broke loose from their confinement, or, in other words, went out of the room to which he had conducted them, each one where he pleased Upon which, the officer was ordered to command their attendance in court forthwith. They accordingly appeared, acknowledged the fact, and offered their several excuses. Som<- of them said, they thought it their duty to stay until they were agreed, and were willing to ilo so, but their fellows left them Others alleged the carelessness of the 1 officer as a palliation of their offence. The result was as follows, which 1 choose to give in the "Words of the record: " The court having considered this matter, the disorder of the jury in the liberty they have taken to scatter and disperse before they had agreed on any verdict, which is directly contrary to the hiiv, and a great prejudice to the admim&trution oj justice ni n.uny inspects, are unai.i- mously of opinion not to receive any verdict made after the separation, either while they are so separate, or whensoever they can convene again. It is, therefore, resolved, that the money they received of the plaintiff be returned to the plaintiff; which was accordingly done in court. And resolved, that this action be continued to the next superior cbiirt to be holden in Hartford, the third Tiiesduy in March next, whore it shall have a trial." K. CIRCUIT COURT OF THE UNITED STATES. 289 September, 1808. GRANT COTTLE against STEPHEN PAYNE. THIS was an action of debt on bond, dated the 17th The condition of a bond be- of Afiril^ 1780; the condition of which was,' that Payne i ng that the should carry on the business of distilling brandy from fhould^carry cider, and should continue to do so for seven years and on the I)U ? 1 - ness of dis- three months from the date of the bond, and should tilling cider keep an exact account, during that term, of all brandy seven J veare or other spirits distilled from cider by him, or on his and , lnree months, and account, and should deliver to Cofile, when demanded, keep an exact r ,, .... account of the one tenth part of all such brandy or other spirits dis- q Uai ,ti:y dis- tilled from cider, free from expenses. The declaration J. llle(l > an(l de * liver to the averred that Payne did carry on the business for the plaintiff, when nil ,< demanded. term%bove specified, but kept no account, and had de- one tenth part livered no brandy or other spirits A special demand ****? . an(l it appearing, was alleged on the 20th of June, 1806. The action was thai the de- fendant did commenced on the 10th of June, 1807. cam on said business, but kept no ac- The defendant pleaded full payment. This plea was fount and de- livered no- traversed, and issue joined thereon. thing to the plaintiff; it was held, that The counsel for the defendant stated, that they should the , il't' ff could have no rely upon the lapse of time in support of the plea. By right of action our statute of limitations, no action can be sustained on u " lt j| ^, e L ,d any bond, bill, or note, for the payment of money only, f>fsald term - unless brought within seventeen years;(a) but as this Payment of r i r r " bo ' le held to strict proof of the amount of damages, which he is entitled lo recover. The court, in the exercise of their discretion, will not Ux costs agaiunt a prevailing plaintiff, except where he must have known that he was not entitled to recover 509 Hollars. f^) .V/af. Conn. tit. 101. e. I. s. 3 VL HI V]. 290 CASES DETERMINED IN THE September, of time in this case is such, that payment is to be nrc- 1808. sumed at common law. Coixr.E PAYNE. The counsel for the plaintiff then introduced proof of the situation and circumstances of the parties to repel the presumption arising from lapse of time. It appear- ed, that the plaintiff was a poor man ; that soon after the execution of the bond, he went out of the state, and was absent several years ; that when he returned, the defendant did not know him, at first, though on hearing his name, he recollected him. The defendant was a man of large property. A special demand was proved as stated in the declaration. As to the amount of damages, it was proved, that the defendant had carried on the business of distilling cider brandy for several years; but no specific quantity was proved to have been distilled, except in one year. It was shown, on the other hand, that during some part of the period in question, there was no cider to be had. * T. S. Williams and Trumbull, for the plaintiff, con- tended, 1. That to raise the presumption that a bond has been paid, there must be a lapse of the full period of twenty years from its becoming forfeited, unless there be other circumstances which do not appear in this case. Colsell et al. v. Budd et al. 1 Camfib. 27- 2. That this bond did not become forfeited until tlje expiration of seven years and three months from the date; and from that time until the demand was less than nineteen years, and less than twenty years until the commencement of the action. 3. That the lapse of even twenty years affords only a presumption of payment, that may be repelled ; which, CIRCUIT COURT OF THE UNITED STATES. 291 in this case, has been done, by showing the plaituiiFs ab- September, . I oUo. sence from the state, and his inability, from that cir- cumstance, and his poverty, to institute and carry on a v suit. Very slight evidence is sufficient for this purpose. Peake'a Ev. 25. 3d Land. edit. Daggett and Goddard, for the defendant, contended, 1. That in England, the period of time within which a bond shall be presumed to be satisfied is not invaria- bly fixed at twenty years, but may be eighteen or nine- teen years. Oswald et al v. Lcgh, \ Term Reft. 272. 2. That by the terms of the condition, the defendant was to keep an exact account of the brandy distilled in each year. But -he kept no account whatever. The condition was therefore broken, and the bond forfeited, at the end of the first year; which was more than twenty- five years before the commencement of the action. 3. That from the situation and circumstances of the parties, which had been proved, the presumption of payment was rather strengthened than rebutted. The defendant was a man of property, and abundantly able to pay. if the plaintiff was poor, he stood in greater need of his motiey, and was more likely to call for it. 4. That in this state, payment ought to be presumed after the lapse of seventeen years, in analogy to cases within the statute. Thu->, it has been held, that an equity of redemption shall be barred after fificrn years' possession by the mortgagee, in analogy to the statute limiting the right of entry into lands. Smith v. Skinner, 1 Day, 124. LIVINGSTON, J. This is an action of debt on bond, the condition of which is, tlut the defendant should distil 292 CASES DETERMINED IN THE September, cider brandy, and keep an account thereof, for seven 1808. years and three months, and deliver one tenth part COTTLB V. PAYNE. thereof to the plaintiff. The defendant pleads payment generally ; and relies altogether upon the lapse of time since the date of the bond. In England, payment is presumed in twenty years ; but this rule is controlled by courts of justice, where the presumption of payment is opposed by other circum- stances. But in Connecticut, as the legislature have acted on this subject, and fixed a term after which bonds of a certain description shall not be enforced, it de- serves serious consideration, whether the rule is to be extended to cases not within the statute. Upon this point, however, the court deem it unnecessary to ex- press an opinion. For in our vie?*' of the case, the plain- tiff had no right of action for his part of the brandy distilled, until the expiration of the term of seven years and three months, which was in July, 1787; though, had the defendant distilled no brandy at all, per- haps the plaintiff might have sustained an action at the end of the first year, as such neglect would have been a breach of the condition. But if twenty years had elapsed since the cause of 'action accrued, we think the circumstances disclosed by the plaintiff are such as to remove any presumption of payment. [Here his honour commented minutely upon the evidence.] Though the plaintiff, upon strict principles of law, i^ entitled to recover, it is difficult to estimate the damages. The demand is, indeed, a stale one. The plaintiff calls upon the defendant after a great lapse of time, for an account of the brandy he has made ; yet it cannot be ex- pected, that the defendant should have kept such an ac- count until this time. No inference is to be made against CIRCUIT COURT OF THE UNITED STATES. 295 him for not producing it now. He had good reason to September, believe he never should be called upon. He would have been justified even had he destroyed it. Under 'O.TTI. such circumstances, it is incumbent upon the plaintiff PA-VSK to prove the quantity distilled. During one year, the plaintiff has furnished some rfata, from which an esti- mate may be made ; in no other year is there any. The jury have no right to supply this want of proof by conjec- ture; or to calculate that he distilled as much in other years as in this; especially when it appears, that in some of these years there was no cider. Daggett inquired, whether the rule of damages should be the value of the brandy at the time of the demand, or at the time the right of action accrued ? Per Curiam. The brandy was to be delivered on de- mand. The value at the time of the demand, therefore, is to furnish the rule. Verdict for the plaintiff for 69 dollars and 2 1 cents. Daggett moved, that costs be allowed the defendant, under the 20th section of the first judiciary act. [Star. If. S. vol. 1. p. 61.] Per Curiam. The court wilf not exercise their dis- cretion to tax costs against a prevailing plaintiff, except where he has knowingly brought forward an unfounded claim, or, in -other words, where he must have known that he was not entitled to 500 dollars damages. In this case, the plaintiff might naturally and fairly suppose he wa entitled to recover more than 5OO dollars. Motion denied. 294 CASES DETERMINED IN THE September, 1808. CHARLES MICHAELSON against ABEL DENISON and others. The courts of THIS was an action of assault and battery. the United States will nut After the declaration was read, LIVINGSTON, J. inqui- on the ground red on what ground the cause was brought before this that one "-of , the parties is court ? Was it because the plaintiff was an alien f He fess h'eTs sta was not so described in the declaration. The descrip- tedto be such t j on was , Charles Michaelson, of Bass End, in the Island in express terras. of St. Croix, a foreign subject, -viz. a subject of the The master of King of Sweden" By the constitution of the United righT' during 5 W*> the -judicial power may extend to cases between the voyage to citizens of a state and foreign subjects ; but congress, in punish his mariners, by the provision of the judiciary act under that clause, ent, for nave restricted it to cases in which " an alien is a party." disobedience jj e must ^ e stated to be an alien in express terms. It is to any ot his reasonable not sufficient that the description be such as to imply it. commands, & _,, . . .... . , for insoknce, Tins court will take nothing by implication. Besides, it A" * s a non se( l uitur ^ iat because a man is a subject of a raendment, foreign power, he is an alien: he may be at the same when allowed. . time a naturalized citizen ot this state. Sta/iles, for the plaintiff, moved for leave to amend. LIVINGSTON, J. at first, said, he did not see how a court not having jurisdiction could make any order in the cause. But upon its being stated, that an amend- ment had been allowed, at the last term, under similar circumstances, he remarked, that the court had not com- mitted itself on the point; and, after a short consultation between the judges, the motion was granted, upon pay- ment of costs. 1 CIRCUIT COURT OF THE UNITED STATES. 295 On the trial it appeared, that Denison, one of the de- September, 1 808 fendants, was the master of a vessel, and the plaintiff . '_ his mariner; and that the beating complained of consist- MI CHAEL- ed in the punishment inflicted by the former upon the v. latter, for disobedience of orders, insolent language, and personal violence. The plaintiff's counsel contended, that the master has no right to inflict corporal punishment for insolent lan- guage; nor for disobedience to orders, not relating imme- diately to the management of the vessel; nor, indeed, for /last offences of any kind. LIVINGSTON, J. in summing up, after taking notice of the weapon, \vhich was not dangerous, the mode of pu- nishment, which was not unusual, and the degree, which, however severe, was less than sufficient to reduce the plaintiff to submission, recognised the right of the mas- ter, during the voyage, to correct a mariner for disobe- dience to any reasonable commands, and for insolence, and other offences. The punishment, in its nature, is not limited to confinement, corporal chastisement being often necessary and proper; and, as to its extent, depends upon the circumstances, of the case, the aggravation of the offence, or the continuance of the disobedience. This is a salutary authority, and ought to be maintained. Without it, it would De impossible to navigate our vessels. Verdict for the defendants. Stafiles and Wales, for the plaintiff. and A*. Smithy for the defendant*. 296 CASES DETERMINED IN THE September, I SOS. UNITED STATES against The ijrig JAMES WELLS and Cargo. The home- APPEAL from the District Court. ward bound cargo of a JSSLdSrto This was u libel founded on an alleged violation of the a foreign port act of congress, approved the 9th of* January. 1808, sup- in contraven- tion of the act plementary to the general act laying an embargo on all the C 9tif P of J- sn ip s and vessels in the ports and harbours of the Uni- 1808, te d States. The brig, of which Stefihen Griffiths was supplementa- ry to the ge- claimant, was charged with proceeding to a foreign port neral embar- . . _ . , go act, is not or place, contrary to the provisions of said acts, and was liable to con- condemned by the decree of the District Court. The deranatioo* cargo, of which the claimants were, Jesse Hurd of 80 fiemb. On a ... <../-. r c ~ libel against puncheons or rum, N. G. Rutgers and B. Seaman of 326 the vessel for b of cof f ee , and J. H. Rawlins & Co. of 47 hogs- having thus proceeded,ne- heads and 14 barrels of sugar, and 5 hogsheads of rum eessitv arising: from stress of was restored. weather, and the condition of the vessel, On the opening the cause, it appeared that the cargo ' libelled was the return cargo of the vessel from the West Indies. Daggctt, for the claimants, contended, that the embar- go law did not authorize a condemnation of this proper- ty. Though the vessel went out in violation of the em- bargo, the claimants are entitled to a restoration of the return cargo. Wolcott, contra, LIVINGSTON, J- Ihave a strong impression, that the provisions of the act apply only to the cargo carried out. In a case like this, nothing is to be taken against the claimants by implication. The most express words would, CIRCUIT COURT OP THE UNITED STATES. 297 be necessary to include the homeward-bound cargo. September, But congress have said nothing about it. We cannot _ _J supply any omission. The intention of the act was U. STATES to prevent exportation. I am ready to say, that those parts Brig JAMES of the decree restorin Proceed to the vessel, of the decree restoring the cargo ought to be affirmed. The cause was conducted by the District Attorney and IVolcott, on the part of the United States; and by Daggett and Bristol, for the claimants. The evidence, so far as it is material to the present purpose, is reca- pitulated in the opinion of the court. LIVINGSTON,!. This is a libel against the Brig James Wells, for proceeding to a foreign port, in contravention of an act of congress. Admitting the fact, the claimant interposes a plea of necessity ; and contends, that although he may have violated the letter, he is not within the spirit and meaning of the law. Whether such matter can form a. good defence here, is a question of considerable mag- nitude. To interpret a statute by its equity, or to say cases are without its spirit, although within its express letter, is, at all times, a delicate and difficult office. I t is making, instead of expounding, laws. It often sets in array against the rigorous provisions of an aot, the feel- ings of a single judge, who may not always have firmness enough to enforce them, if he be at liberty to mitigate their severity when they may be supposed to bear hard upon a particular case. He, besides, destroys that certainty in laws, which is a property so much desired, and must ever constitute one of their chief excellences. Even when, this mode of interpretation may be indulged, it should be strictly confined to cases, which could not, from their nature, or tlic iufrequency of them, be supposed to have been foreseen by the legislature. But when the ne- cessity, or via major, which is relied on, arises from circumstances, which wero too obvious t have escaped VOL. II! Qo. 298 CASES DETERMINED IN THE September, the most ordinary capacity, but which, notwithstanding, are not found to form an exception from the general U STATES provisions of the law, a court may perhaps say fier quam Brig.TAMEs durum, sit italex scrijita est. When to this is added, that WELLS. anotner tribunal is erected, and referred to, by these very laws, invested with full power to relieve in cases of ac- cident, &c. unintentional and innocent infractions, it can hardly be doubted, but that the courts of the United States are designedly excluded, in all cases of this nature, from every equity of interpretation whatever, and that, for a mitigation of their rigour, recourse must be had else- where. "Without, however, deciding how far a defence of this nature be admissible, where the act is silent as to any exception, the court will proceed to examine whether, in point of fact, the claim is supported. A more un- pleasant office cannot devolve on a judge, than to be called on to determine both the law and the fact, in a penal suit between the government and a fellow citizen. But whatever his feelings, as an individual, may be, and of these 1 should never wish to devest myself, he must not lose sight of those solemn sanctions he is under, to ad- minister with strict impartiality the laws of his country. In these, every man has an interest; and to permit those who violate them, to pass with impunity, is an injury to such, who, from principle, or from any other motive, make them the rule of their conduct. The fact alleged in the libel being admitted, it will not be denied that the necessity on which the claim is founded, should be made out in a manner to leave no rea- sonable doubt, that it produced the violation complained of. The onus lying on the claimant, his proof should be strong and satisfactory. If any thing short of this be admitted, laws, however salutary, may be easily trans- gressed, and their penalties avoided. CIRCUIT COURT OF THE UNITED STATES. 399 This vessel sailed from New-York^ on the 26th of September, I finC Pebruary, of the present year, bound on a voyage to St. ' Mary's in Georgia. She was new, and without encoun- U. STATES tering any extraordinary bad weather, or meeting with Brig JAMES _ , . r . "WELLS. any accident, we find her in a very tew days, bearing away for the West Indies. For this conduct, no other reason is assigned but her leaky condition. Of this fact there is probably not much doubt; but that the danger arising from this circumstance was so imminent as to justify the act, is not so clearly established. It is true, that those on board must, firimdjacie, be the best judges of the necessity, which may exist for changing the course of a voyage; and where no circumstances arise to impeach their testimony, they will be entitled to, and receive, full credit. But where every one of the par- ties may possibly be implicated in heavy penalties, it cannot be regarded as a want of charity to listen to their allegations with some caution. The master, it is conclu- ded, is in this predicament; and it may well be doubted, whether all the other hands are not subject to the same penalties. If so, a vcty strong inducement existed in them all to give a high colouring to the transaction. But without di trading from their credit, on account of their participation in it, and their possible liability, it is not easy to believe, that on account of the leak, which th y describe, a real necessity intervened for leaving the continent. Vessels in a more leaky condition than this one is described to have been in, have sometimes tra- versed the ocean, encountered considerable storms, and anived in safety. There is too much reason, therefore, to think, that unless some strong temptation to depart from the tract of the original voyage had presented itself, more serious and successful efibrts would have been r ade to reach St. Mary's. This surmise is much strengthened by the voyagrs performed by other vessels, at the same season of the year, and on parts of the ocean IKK very distant from this brig. Neither has it escaped 300 CASES DETERMINED IN THE September, the attention of the court, that after bearing away, the I 808 _ i winds and weather, for a long time, were ve 17 favourable U ' S * ATES to have made an attempt to reach the destined port; for, whatever necessity may have produced, at the time a determination to go to the West Indies, if a reasonable prospect, such as moderate weather and favourable winds shortly after presented, of reaching the continent in safety, it ought to have been embraced; and if the cargo were found to be greater than the vessel could bear, there can be no hesitation in saying that part of it ought to have been sacrificed, if not the whole, in preference to landing it in a foreign country in direct violation of a public law, which could have been done without forfeit- ing the penalty of the bond which had been given to land it in the United States. This is an argument which was not urged by the counsel for the United States, but has considerable influence with me, in the judgment I am about to give. It is not pretended, that this vessel, if relieved of part, or the whole of her cargo, might not have returned to the United States. The underwriters, if insurance had been made to St. Mary'e, would have been liable; and, if uninsured, the owner should have borne the loss himself rather than have gone to a foreign port. If this view of the subject be correct, there is an end of every justification arising from necessity. The carrying of the cargo to St. Bartholomews then becomes a volunta- ry act, which nothing could justify, but being driven there by a sudden and severe tempest, which did not leave time or opportunity to throw it into the sea. But if this were not a duty, there are other circum- stances which render it difficult to believe, that this was not a concerted plan to evade the embargo laws. There is no evidence to show what was the value of flour at Sf. Mary's. It is a fair inference, therefore, that the cargo was chosen for a West India market, where the embargo CIRCUIT COURT OF THE UNITED STATES. 39 1 would necessarily produce a scarcity of that article. "SVe September, 1808 also find the owner on board as supercargo, which is not very usual in coasting voyages. He carried with him, STATES also, notes payable in the West Indies; and although Brig JAMES . . WELLS. these may have been duplicates, it is not very customa- ry, whatever may be the practice on land, to take such papers to sea. Nor is it very conclusively made out, that there was a necessity to dispose of the cargo at Gustavia; and although the sale at that port constitutes no part of the present offence, it is some evidence of the quo animoi for if repairs had been the only object of going there, the cargo would have been retained, and brought back, unless prevented by some compulsion, or force, on the part of government. It is, also, impos- sible to evade the very forcible circumstance of the holes which were bored in this vessel. On this subject, as well as on every other, the court has listened with great pleasure to the very ingenious remarks of the claim- ants' counsel; and although it felt desirous, that the im- pressions which were unavoidably made, when this oc- currence and some others, were first mentioned, should be removed, it cannot say, that the manner in which they have been accounted for, has had that effect. The secrecy with which these holes \vcre made; the place chosen for the purpose; the instrument made use of; the manner in which they were closed; the mode of fastening the plugs, with the anxiety discovered to prevent a discovery previous to the first trial; and the chance by which the disclosure was at last made, render it very difficult to believe, that their design was such as is now pretended, or any other than to produce a leak, which was to furnish the means of defence against a prosecution, which, it was foreseen, would take place, on the return of the vessel to the United States. I take _ no notice of the erasures in the log-book, because it possible' they may have been made botiu,fidc; and i' 302 CASES DETERMINED, &c. September, appears from the witnesses, that from the winds which prevailed, the vessel might very well have been where U. STATES s he was, when it was determined to hear away. But V, Br's JAMES taking all the testimony and circumstances together, I WELLS. am com p e lled, with every inclination to come to a differ- ent result, to believe, that the claimant has altogether failed in showing such a necessity as would, under an express exception in the statute, have justified him in going to a foreign port. The judgment of the court, therefore, is, that the decree of the district court con- demning the Brig James Wells, be affirmed. CASES ARGUED AND DETERMINED IN THE CIRCUIT COURT OF THE UNITED STATES, HOLDEN AT NEW-HAVEN, WITHIN AND FOR THE DISTRICT OF CONNECTICUT, AFK1L, 1809. fBROCKHOLST LIVINGSTON, PRESENT, HON- -J Associate Justice of the Supreme (_ Court of the United States. fPIKRPONT EDWARDS, District Judge for the District of Connecticut. CHRISTOPHER GIBBS CHAMPLIN, as Executor of CHRIS- A P ril I80S ' TOPHKR CHAMPLIW, against JAMES TILJLKY and WIL- LIAM TlLLEY. THE plaintiff, in his declaration, stated, " that at New letters testa- Port, the defendants, by said William Tillcy, purchased *3 ury UI11 ,'*. ef said deceased a quantity of hemp, to be manufactured ^ anthoritj of one state at their rope factory in AVw-Zonrfon, on a credit of four arc not mmia- lilt- in another. But if to an action brought Ir, an eTcculor, on a cauc of action nrisinR in tin- lifc-tiiiu: ol" llii- trsiutur, tin- ili-fi-iiiliint jili-jul tin- grncnil issue, the plaiiii.ifl' rtu >o required, <>u ttic triul, to prodii- n 304 CASES DETERMINED IN THE April, 1809. months, and to secure payment thereof, the defendants, CHAM PL IN at sa ^ New-Port, by said William Tilley, one of said v firm and company, and then joint mechanic and trader TlM,EY. J with said James Tilley as aforesaid, made, executed, and to said deceased, then in full life, delivered a certain writing or promissory note, in the words and figures following, -viz. "We, William Tilley and company, of New-London, pro- mise to pay Christopher Chamfilin, of New-Port, or his order, within four months from the date hereof, five hundred and eighty dollars, value received. Witness our hands, New-Forty January, 31st, 1804. " William Tilley W Co. " Witness, 11 George G. Wliitehorne." When the cause came on for trial, William Tilley, who had failed and absconded, was defaulted ; James Tilley, the father of William, and a man of property, ap- peared and pleaded non assumfisit. Daggett, for the defendants, called upon the plaintiff's counsel for evidence, that the plaintiff was executor to the deceased. He said, that unless this were shown, there was no propriety in proceeding any farther in the cause. He stated, at the same time, that no letters testamentary, issued by any authority out of the state of Connecticut, could be admitted as evidence before the courts of this state, according to a decision of the Sufireme Court of Errors, at their last session in Hartford.(a} Goddard, for the plaintiff, replied, that he was some- what surprised by the motion, though he apprehended (a) Vide Riley T. Riley, ante,, 7$. CIRCUIT COURT OF THE UNITED STATES. 3Q5 that the defendant was too late with it, and that advantage April, 1*09. ought to have been taken by plea in abatement, as the CHAMPLIN want of lawful appointment to be executor is a disquali- fication to sue in this case. LIVINGSTON, J. having inquired, whether there was a profert of letters testamentary, was answered in the negative, and that it was not common in our practice to make such a profert, the mere naming the plaintiff as gjcecutnr being considered as sufficient to enable the defendant to plead ne umjues executor. His honour then observed, that it must undoubtedly be good law, that letters testamentary should be used only within the jurisdiction under which they were issued, and that he should have no doubt, in a proper stage of the proceeding, as to requiring the production of such letters issued under the authority of the state of Connecticut: and he did not see but- the plaintiff in this case must produce his claim to the character of execu- tor, if the defendant required it. At the request of the plaintiff's counsel, the question was permitted to rest till afternoon, as he wished to look at authorities, that he might be able to show that the de- fendant was too late in his motion. This was assented to by the court. At the opening of the court in the afternoon, Goddard proceeded to show, that on a plea of non oum/ir, when the case is entered upon before the jury, it in too late to call for letters testamentary. He cited, as in point, Praiee'i Rv. 342. last edition, and Martjirld v. Afar*/i, 2 Ld. Kaym. $24. VOL. III. If , 306 CASES DETERMINED IN THE April, 1S09. Daggett) in reply, stated, that in Edwards v. Stafileton, CHAPLIN Cro. Eliz. 551. Browning v. Fuller, Cro. Jac. 299. and v - Cults v. Bennett, Cro Jac. 400. it was decided, that a TILLEY. profert of letters testamentary is matter of substance. The reason of these decisions must be, because the plain- tiff may be called upon to prove them to be legal and genuine. / The court said, that they were satisfied by the authori- ties read by Mr. Goddard, that the plaintiff could not be called upon, in this stage of the proceeding, to prove his claim to the character of executor. LIVINGSTON, J. said, that he was of a different opi- nion in the morning, but was convinced by the authorities. As to the cases read by Mr. Daggett from Cro. Eliz. and Cro. Jac. it might well be matter of substance, that profert of letters testamentary should be made; that the plea of ne unque* executor may be tendered, while, ne- vertheless, the plaintiff could not be compelled to prove himself executor on trial to the jury. In an action j n t he course o f the trial to the jury, the counsel for against.*, and Aas partners, the defendant read several letters from the testator, executed in Christopher Chamfilin, to the defendant, from which it ap- the partner- peare d, that the testator did not consider the defendant, snip name, Ji. v Buttered a de- James Tillry, as a member of the firm of William Tilley fault, and B. _ , pleaded the & Co. In one of these letters, six other letters, pur- Kwn'hinet.' P ortin S to be written b 7 William Tilley tf Co., and ters written promising payment, were enclosed; and with them, the by Jl in the r partnership note on which this action was brought. The counsel for not^be C read tne defendant were proceeding to read these enclosed in evidence by letters; but an objection beiner made, B. to show, that he was not a partner THE COURT said, that the letters, whether written by William Tilley or not, were entirety irrelevant; though CIRCUIT COURT OF THE UNITED STATES. 307 the letters of the testator were good evidence to prove April, 1809. that he did not suppose James Tilley to be a partner. CHAMP LIU v. TILLEY. An account book was produced by the plaintiffs to Tn such case, , . an account prove, that James Tilley was connected with his son book.contain- William in business. In this book two entries were ln , entries made by Jl. found in the hand-writing of James Tilley, many in the and B- may hand of William Tilley , and some in the hand of other as evidence of persons. R partnership. The counsel for the defendant objected to reading to the jury any 'charges made in the hand of William Tilley. BY THE COURT. The book must go to the jury, as it has been proved, and indeed conceded, that James Tilley made a few entries in it. The jury are to decide whether the book, as it is, amounts to any proof of partnership. The jury found a verdict for the defendant. His counsel then moved, that judgment should be en- In . action tered up for both defendants, though one of them had been defaulted. two - one has sutter- ecl a default, T /-, j ^,. and the other THE COURT said, this was the correct mode of pro- has obtained ceeding; for if the jury had found, that one defendant * ll , gm eJJ lllctf assumed and promised, and the other did not, judg- ni " M bo en * tercd up lor ment must have been entered up for both, the dccUru- both. tiou being founded on a joint promise only. 308 CASES DETERMINED IN THE April, 1809. ANONYMOUS. After an affi- ON motion for the continuance of this cause, the davit in sup- port of a mo- party made an affidavit stating the absence of Josefib continuanceof Hoivland, jun. a material witness, and that he hoped to a cause.on the p rocure the testimony of the witness at the next court. ground f>i the f absence of a A counter affidavit was filed, stating that Joseph How made, the op- i an( i j un . was pone to foreign parts; that he expected posite party may make a to have no fixed residence; and that he did not expect counter affida- . . vit, statingany to return within two or three years. circumstances that render it impossible, or THE COURT would not continue the cause; and took that the eVi- the opportunity to observe, that there was manifest dence of the u tiiity in counter affidavits, as was evident from the witness canoe ' obtained with present instance. They said, however, that counter in a reasona- _. . . ,. f . .. fele time; but affidavits should not deny the materiality of the evidence such counter expec ted from the witness, but might state any circum- affidavit must not deny the stances, that rendered it impossible, or improbable, that materiality of . . . the evidence, his testimony could be procured within a reasonable time. EDWARDS, J. said, that the English practice was lame in this respect; that it threw great power into the hands of a party ; and that this court was perfectly free to establish a beite piactice. He added, that the whole English practice of admitting affidavits was modern. CIRCUIT COURT OF THE UNITED 3T AT ES. 3Q9 April, 1809. STEPHEN HOWARD against JEDUTHAN COBB. THIS was an action on a joint note, signed by jlshbel In an action on a promis- Stanley and Jeduthan Cobb, but was brought against 8 ory nou exe- Cobb only, it being alleged, that Stanley, since the exe- ^ jmntiy", cution, had become a bankrupt under the laws of the brought a- gamst-8 only, United States. after tliebank- ruptcy ot Jl* under thelaws The defendant pleaded a discharge in full to Stan- of the United States, it was ity* hehl that the admissions of J\. were evi- On this plea issue was joined, it being contended by Hence agiust the plaintiff', that the discharge was forged. Daggett, for the plaintiff, offered the declarations of Stanley in evidence, to prove, that he had acknowledged the debt to be due, long after the discharge purported to have been executed. Goddard, .for the defendant, objected to the admission of this evidence, on the ground that as Stanley was ab- solved from the payment of this note by his certificatCj he could be examined as a witness; and therefore, his declarations could not be proved. BY THE COURT. If Cobb should be compelled to pay this note, he could compel Stanley to indemnify him,(a) as it would be a debt accruing after the bankruptcy of Stanley. His declarations, therefore, may be proved. The plaintiff obtained a verdict. (a) It had been stated by the counsel on one tide, and assented to.. **n the other, th O* signed the note only imretp f-n* Stt 310 CASES DETERMINED IN THE April, 1809. HOWARD The defendant moved in arrest of judgment. The COBB- principal ground was, that the jury had separated, and If the jury se- mingled with the inhabitants of NeTD-Ha-ven, before they milled to them, and be- fore Ihey have The fact was not conceded, though the counsel for verdfct "and tne plaintiff stated, that this had been the general prac- afterwards re- t j ce j n Connecticut; that juries had always separated, turn a verdict, ii will be set when they pleased. aside But neiiher Goddard, for the defendant, called upon one of the Ihejurors.nor the officer to jury as a witness to establish the fact of such separa- whose care . they were tion. committed, can be com- pelled to tes- THE COURT informed the juror, that he should not tifv to the , . . - , . fact of such be compelled to answer, as it was a misdemeanor m him; separation. but tnat ne m jght answer, if he pleased. The juror declined answering. The deputy-marshal, to whose care the jury hail been committed, was then called. THE COURT said, that he could not be compelled t answer, unless he pleased. He declined. The counsel for the defendant then proposed to wait until the rest of the jury should come in, observing that perhaps some of them would be willing to testify. THE COUKT said they would not wait a moment in such a case as this. 4 CIRCUIT COURT OF THE UNITED STATES. 311 The counsel for the defendant then offered to prove April, 18.19 the declarations of the jury, as evidence of the fact in bT^A~aT controversy. THE COURT said, they would not hear such declara- tions. They expressed, however, a clear opinion, that judgment must have been arrested, if it had been pro- ved, that the jury separated before they had agreed upon a verdict. The statute of this state(a) they considered so explicit and imperative, that it could not be evaded, let the practice be ever so universal against it. (iKEEN- LEAF. In the next case, the court appointed an officer to take care of the jury, and charged him not to suffer them to separate, until they had agreed in a verdict, nor to speak to them, except to ask them if they were agreed. (a)TH. 6. c. i.s.11. ROBERT STUART and HAMILTON STUART against DAVID GKKKNLEAF. THIS was an action by the endorsees of a promissory note against the maker. The note was made in the state of New-York, and was, by the laws of that state, negotiable. It was paya- ble to John I. Stafilet & -Son, and by them endorsed to the plaintiffs. The defendant offered in evidence two receipts, sign- ed by John /. Stafilr* & Son, for two hundred dollars each, which he contended ought to be allowed in part Whether, iu nn artinn. by the endorsee of a negotiable note against the maker. & discharge by the payT shall be avail- able as a de- fence, unti! it be shown hy the maker, that t he re- ceipt was gi- ven hi-fiin- the endorse- ment waft made? 312 CASES DETERMINED IN THE April, 1809. on the note, unless the plaintiffs could prove, that it was gMITH assigned to them, before the receipts were given. V. The plaintiffs contended, that the onus firobandi lay upon the defendant; that every endorsed note was pre- sumed to have been endorsed the day it was made, or at any rate, before it became due, unless the contrary were shown. And of this opinion was LIVINGSTON, J. f EDWARDS, J was of a contrary opinion; and strenuously contended, that the onus firobandi lay upon the plaintiffs. It afterwards appeared, that the case was with the plaintiffs on other grounds. Daggett and Bristol, for the plaintiffs. I The District Attorney, for the defendant. NATHAN SMITH against JACOB BARKER. Where the THE declaration was as follows: " That before the 8th declaration , _ ,/., alleged an un- day ot February, 1806, the plaintiff had entered into a con^dcrfuon" certam contract with the defendant, to build him a ship, of a contract which, on said 8th day of February, was building:, the same entered into by the plain- not being finished; and the defendant, on said 8th day of ship 1 " and the February, in consideration of the plaintiff's building evidence was sa i(] s hip, and the sums which would become due to the of a contract to finish a ship plaintiff for building said ship pursuant to said contract, partly built, it was held, that the variance was fatal. CIRCUIT COURT OF THE UNITED STATES. 3 IS and in part payment thereof, made, executed and deliver- April, 1800. ed to the plaintiff his certain writing, or note, in the fol- SMITH lowing words, to wit, "Dollars 500. Whereas A'at/ian Smith is building a ship forme on the contract, for which I shail have to pay him a considerable amount, when said contract is completed, I hereby agree to pay said Nathan Smith, or order, five hundred dollars, as soon as that amount shall become due fier said contract. Jacob Barker;" as fier said note, which, without date, was, in fact, executed and delivered at New-York, on said 8th d.iy of February, now ready in court to be shown will fully appear. And the plaintiff says, that he did after- wards complete and finish said ship, according to con- tract, and said sum of five hundred dollars became due to the plaintiff in the month of May, 1806, when said ship was completed and finished, and to the defendant deli- vered, and by him received; which sum of five hundred dollars the defendant hath never paid, nor any part thereof, according to the tenor of said writing, but the same is now justly due. Whereupon the plaintiff says, that by reason of the premises, and by force of said wri- ting, the defendant, on or about the 1st day of May, 1806, after said ship was completed and delivered to the defendant, became justly indebted and liable to pay him said sum of five hundred dollars, and being so liable and indebted, the defendant did afterwards, on said 1st clay of May, in consideration thereof, assume upon him* self, and to the plaintiff faithfully promise," See. The plea was non assum/tsif. The plaintiff, to make out his case, read in evidence the following contract: " New-London, 26th of October, 1805. I agree to finish the ship I am now building at Stonington in about one month in a workmanlike man- ner, with patent windlass, flush decks, &c. [particularly specifying the manner in winch the decks, hull, masts, VOL llf, F * 314 CASES DETERMINED IN THE BARKER. April, 1809. See. were to be made,] when I agree to sell her to SMITH Jacob Barker at thirty dollars per ton, carpenter's ton- nage, payable one thousand dollars cash in all next month, pay my draft at sixty days for five hundred dol- lars, one hundred dollars of prime flour in New-York at the market price, two thousand five hundred dollars in six months after the ship is complete'!, and the other half in merchandise, at the market price, such articles as I may want. If, however, the ship don't suit Captain G. Barney, the said Barker is to take only one half of jher at the above rates, and these payments to be in pro- portion. "Nathan Smith. Jacob Barker." Goddard. and Cleavcland, for the defendant, insisted, that the contract proved was not the same with that de- scribed in the declaration. First, the consideration is not the same. The declaration states the contract to be for the building of a ship. The consideration of the contract proved is the finishing and selling of a ship to Barker. Secondly, the declaration states, that the money was due on th- 1st of May. The proof is, that it was not due until November, six months afterwards. Thirdly, the contract proved says, that the ship, when finished, was to be sold to Barker. But on this point the declaration alleges nothing. Daggett, in reply, observed, First, that the consideration stated in the declaration, to wit, the building of the shiji, was taken from the words CIRCUIT COURT OF THE UNITED STATES. 315 of the note on which, &c. As the note recites the con- April, isog. sideration, we are correct in taking the description of SMIHI the contract, which the note has given. BARKER. Secondly, that the money is proved, as we contend, to have been due, as stated, on thf \st of May. This is a question of fact, which the jury must determine. Thirdly, that if the declaration is defective for want of more allegations, advantage may be taken of such defi- ciency by motion in arrest, but it is no variance. LIVINGSTON, J. It is the opinion of the court, that the consideration alleged is so different from the one proved, that we cannot let it go to the jury. The consideration alleged is the building of a ship. The considt ration proved is the finishing of the ship Eliza already built in part, and the selling it to the defendant. Every one knows that to build a ship for another is an essentially different thing from finishing one partly built, or selling one finished. This ship was Smif/i's^ while she was building, till she was finished, and till she was sold and delivered. Without deciding any other points which have been made,(a) we are of opinion that none of the proof offered with respect to the contract in this case can go to the jury. The plaintiff then moved to amend. A declaration max in- i.in.-n- This was objected to, on the part of the defendant, s'lajjc of the on the ground that it was too late. fii't'r-.scTs '.'- tuxlly ci'tii- THE COURT said, that the plaintiff could amend in ! !litu ' d lo thv J UI 7- any stage of the trial, if the case had not been actually c< inmiutd lo the jury. (rt) Srvt-ral other points of law were made by cnunv.-), in tht r nurse of iln trial; bin ax no decision w:i hint upn l!ir . it .,s not thought best to aUle them particularly in this Deport of the case. R. 316 C \SES DETERMINED IN THE April, 1S09. The declaration was accordingly amended, by inserting feMiTn ant ^ declaring upon the contract above recited. Then v - there was inserted a letter from the defendant to the BACKER. . . On the 26th p' dmtl > dated November 21st, 1805, in which the detend- of October, ant concludes to take the whole ship, and introduces a 1805, Ji. a- gn-ed to fi- Captain Waterman as his agent, to superintend the finish- the!> a partly *" f tne ship- Then it was averred, that Waterman bmlt, in about did superintend the finishing and rigging of the ship; ami then sell and that the defendant, on the 8th day of February , 1806, certain price ^ n pursuance of the contract, executed the note on which, per ton, pay- &c -' ne plaintiff then introduced an averment, that able ID a man- ner, and at he finished the ship, in all respects, as specified; sold times, specifi- ed. On the her to the defendant) on the 30th ot Afinl, 1806; and fln/'isoir"/?. delivered her with a bill of sale to Waterman, as the i * gave ins note a p- en t of the defendant; that Waterman received the ior the pay- ment of a ship, and made an endorsement upon the contract in certain sum . r ., . . . ~ ,, as soon as that t e following words: "Received the ship of Captain ^ athan Smith, agreeable to the within contract ; and I, on the con- as attorney to Jacob Barker, do discharge said Smith tract. Held, that this note from all demands, that said Barker has by law or equity, Ueonly mion ^ or not delivering her before ; as witness my hand, this a strict fulfil- 30th day of Jfiril, 1806. ment of the contract on !5 e ,-th P aTafin- " D - Waterman, attorney for J. Barker." ishing and de- livery of the ship on the The plaintiff then averred, that by said writing of the 1806, was not 8th of February, 1806, the defendant assumed, and pro- m ^ se d to P a y to tne plaintiff, or his order, five hundred a release from dollars, as soon as that amount should become due by .#. of all ex- * rtptions ad- said contract; and that on the 30th of dfiril, 1806, said nosf-fuifiimeiit sum was f ' ue ^ rom tne defendant to the plaintiff, by said would not contract, and by the completion, delivery and sale of said gve A a right of action ship. on the note. CIRCUIT COURT OF THE UNITED STATES. 317 After the declaration had been thus amended, it was April, 1809. agreed by the counsel, to submit the case to the same SmTa iury, who had heard the evidence adduced in ihe former v - BARKER. stage of the trial. LIVINGSTON, J in his charge to the jury, said, that the contract now stated in the declaration was, thai Smith should finish the ship Eliza in a workmanlike manner, and sell her to Barker in about one month. The defendant had objected, that this contract was not complied whh, because the ship was not built in a work- in nlike man.ier. Little proof had been adduced by the defendant to tins point; and he considered it as not much insisted on by his counsel. As to the time, it was proved, that the ship was not delivered till after six months had elapsed. Nobody could consider this as the fulfilment of a contract to deliver in about one month. But it was insisted, for the plaintiff, that what- ever breach of contract there has been, on his part, all advantage to be derived from it had been waived express- ly by the defendant. But this note was to become paya- ble, when the sum of five hundred dollars should become due on the contract. If the contract was not complied with, this note could not have become due. The court were decidedly of opinion, that if Barker had expressly waived all exceptions arising from want of fulfilment of the contract, by writing under hand and seal, yet thi v note would never have become due. The plaintiff thereupon suffered a nonsuit. CASES ARGUED AND DETERMINES IN THE SUPREME COURT OF ERRORS, HOLDEN AT NEW-HAVE \ T , IN JUNE, ISO'J. PRESENT, THE HON. STEPHEN" AITX MITCHELL, Chief Judge. TAPPING REEVE, ZEPHANIAH SWIFT, .7' 'MX TKUMHl'LL, AVILLIXM EDMOND, NATHANIEL SsMIFH, .1EKEMIAH (i. BRAINEIID SIMEON BALDWIN, IIOGER GR1SWOLD, I T f J , I June, 1809. JOHN B. JUDSON and HEBZIBAH, his wife, against WALKER LAKE. THIS was an action of ejectment for one undivided esta- seventh part of a piece of land, which the plaintiffs Wishing a will ..... containing a claimed, in the right of the wife, as one or the heirs at Ste, u' cot **" of Ann Lake, deceased, elusive upon the heirs of the devisor, The defendant pleaded the general issue. until disaffir- med on ap- peal, or set a- On the trial, it was proved and admitted by the parties, ua in due . rourse of lav. that on the 1st of January, 1797, Ann Lake died seisrd of the premises; that she had previously made her will, . while the wife of Jabez Lake, whereby she devised the premises to the defendant; and that on the 9th of June, 1797, said will was proved, and offered to the court of CASES DETERMINED IN THE, Sec. 319 probate for approbation, whereupon the following decree June, 1809- was passed: "M a Court of Probate field at Stratfurd^ JuDSON June 9th, 1797. The within will being proved, and v - liAKF. offered to this court for approbation, the same is by this court approved, and ordered to be recorded, the execu- tor having accepted the trust committed to him, and given bond as the law directs." From this decree no appeal was taken; and the time limited for taking such appeal had elapsed before the commencement of this action, so that none could now be taken. The only question in the case was, whether the devise of Ann Lake, executed by her while under coverture, and duly proved, and approved by the court of probate, was suffi- cient in the law to defeat a title by descent in the heirs? The superior court instructed the jury, that the decree of probate, not having been appealed from, but remain- ing in full force, was conclusive upon the heirs at law of the devisor, as to all the real estate thereby devised, of which she died seised, and that the title of Hcbzibah. Judson, one of those heirs, was thereby defeated. They, therefore, directed the jury to find for the defendant: which was accordingly done. The plaintiiT moved for a new trial; and the courV reserved the motion for the consideration- of the n'm<- judges. Gould and K. Jl/. Wurma:. iti support of the mo contended, 1. That the ro'.. tlrf will, vested no title in the , Uy the common l.\\v of /. 'Tal estnte, on til 320 CASES DETERMINED IN THE June 1809. vests immediately in the heir or devisee. The personal , ~ estate only goes to the executor or administrator. The v. law having settled the course of the former, has made no provision for its management. The latter is alone the subject of cognisance by the ordinary. He must look so far into a devise of real estate as to ascertain who is the executor, where personal estate of the deceased is left. But the devise, quoad the real estate, derives no validity from probate. As on not guilty in trespass, the title of real estate is tried, as inducement only, and not as the gist of the issue; so here, the validity of the will is tried, to ascertain the executor, and for some other pur- poses, but not to affect the title of the heir. With that title the ordinary has no concern. Poiv. on Mort. 688. The statutes of Connecticut have vested the powers and duties of the ordinary in the court of probate; and have given that court no additional power as to real estate. Here, as in England, the real estate vests in the .heir. He alone can bring trespass, or ejectment. The executor can only bring trove--, &c. for injuries to the personal fund. The court of probate has no power as to the former, except to order a sale for the payment of debts, -when the personal fund is deficient, and to cause distribution to be made. To effect the objects of its jurisdiction, the court of probate must decide on the competency of the testator, and the formality of the exe- cution of the will; otherwise, it cannot make distribution, or ascertain the executor. But its determination is conclusive as to those objects only. The title to real estate, with which that court has no concern, is left unsettled by its decree. The power given the court of probate to order sale, and make distribution of real estate, involves no authori- ty to decide on the title of such estate. The statute es- tablishing that court concludes thus: " And of acting in all testamentary and probate matters, and in every other SUPREME COURT OF ERRORS, 321 thing proper for the court of probate to act in, according June, 1809. to law." Tit. 42. c. 1. s. 61. General, unspecified pow- ers are here given, which are to be ascertained by refer- ence to the common law. Ingersoll and Hatch, contra. To lay a foundation for a new trial in this case, it must be established, in the first place, that the land in ques- tion did not pass by the devise; and, in the second, thafc a sentence, or decree, of a court of probate> establishing a will, is not conclusive as to real estate. 1. As to the first point: The will, or devise, is claimed to be void, only on account of the supposed incapacity of the devisor; she having been, at the time of making it, a feme covert. This brings up, for the determination of this court, the much litigated question, whether a mar- ried woman, by our law, previous to the act of the last session, could devise her real estate ? This question was barely stated by the counsel; it could answer, they said, no purpose to go into the argument at length, The subject had been repeatedly, and very fully, discuss- ed. The decision in the case of fitch v. Brainerd, 2 Day, 163. they denied to be law. The most that could be said of that case was, that it was directly opposed to a former decision of the same court of many years' stand- ing, (ddama v. Kellogg, Kirby, 195.) and to a long series of decisions in the inferior courts. It was therefore claimed, that should it be necessary, in the determination of this case, the court would go into the merits of the question, considering, that the decisions iu the old court of errors did not settle it cither way. 2. The only remaining question is, whether, by our law, the jurisdiction of courts of probate extends to the real estate of deceased persons ? For it is agreed, in Tot.. III. T< 322 CASES DETERMINED IN THE June, 1809. this case, that, if the court of probate had jurisdiction HUDSON ^ l ^ e su bj ec t matter, its sentence, or decree, not appeal- v. edfrom, is conclusive; and therefore, that the validity of the devise cannot be collaterally drawn in question. The rules of the English law are admitted to be, as laid clown by the counsel in support of the motion. The ordinary, in Great Britain, has not jurisdiction of real estate; the heir there is not a party to a sentence, or decree proving and approving a will. But still the question recurs, what is the law of Connecticut ? For, on this subject, it is conceived, we have a system entirely distinct and different from the English system. Our own legislature has limited and defined the juris- diction of our courts of probate, by positive statute; and it is from an examination of the powers thus given, and not from any analogy presented by an English preroga- tive court, that a correct judgment is to be formed on the point now under consideration. By the 61st section of the " Act for constituting and re- gulating courts,' Sec. it is provided, that "courts of probate shall have the power and cognisance of the probate of wills, and testaments, granting administration, appointing and allowing of guardians, and of acting in all testamentary and probate matters, and in every other thing proper for a court of probate to act in, according to law." It is readily admitted, that this provision was not intended to enlarge the jurisdiction of probate; nor was it intended, by anyj*eference to the English law, to operate as a re- stricting clause. It was undoubtedly introduced, for the purpose of identifying a court having a certain jurisdic- tion, and not for the purpose of limiting or defining that jurisdiction. We must, therefore, recur to the specific powers given by other statutes, in order to determine the question we are now considering. If it be shown generally, that a cgurt of probate has the same control SUPREME COURT OF ERRORS. 323 over real, as over personal estate, and especially, if it be j un e, 1809. shown, that a power is given, in the exercise of which j^^ N in almost every case, the validity of a devise of lunds j jA ^' E must be necessarily adjudicated upon; it is believed no doubt can remain as to the decision of the case at bar. The first act to be done, in case of a testate estate, is to prove the will. It is made the duty of an executor to present the will, within thirty days after the decease of the testator, and cause it to be proved, and recorded, or to present it and decline executorship. Sfat. Conn. tit. 60. c. 1. s. 2. The statute makes no distinction between a will of real and one of fiersonal estate. Sup- pose, then, a mere devise of real estate, with the ap- pointment of an executor, would it not be his duty to present the will ? Would he not incur the forfeitures of the statute by neglect ? Upon the principles contend- ed for on the other side, he clearly would not. Another part of the office and duty of an executor, in such case, is the making and presenting of an inventory. This is to be made " of all the estate of the person de- ceased as well moveable as not moveable, whatever." The executor is bound to exhibit it within two months after probate of will, and this under a penalty for neglect, unless he render a sufficient excuse, to the acceptance of the judge. Slat. Conn. tit. 60. c. 1. s. 4, 5. Further, the real estate is a fund for the payment of debts, and may be sold for that purpose, under an order of the judge of probate, in all cases, where the personal fund is insufficient. Indeed, whenever the debts of the deceased " cannot be fully paid out of the personal estate, without prejudice to the widow or heirs, by de- priving them of necessary stock," 6cc. the judge may, at his discretion, order a sale of land, for the payment 324 CASES DETERMINED IN THE June, 1809. o f such part "as he shall judge reasonable." Slat. JUDSON Conn. tit. 60. c. l.s. 22. and c. 3. s. 1. V LAKE. But lastly, courts of probate are empowered by statute, to order a distribution of the real, as well as of the personal estate, and in precisely the same terms. Their power over the one subject is the same as over the other; and this, whether the estate be testate or intestate. In the one case, the distribution is to be according to the will, or devise; in the other, according to law. Stat. Conn. tit. 60. c. l.s. 12. and c. 8. But how, let it be asked, is it possible for the court to determine the question, to whom distribution is to be made, whether to the heir or devi- see, without adjudicating upon the validity of the devise? This question will necessarily arise in every case, where the real estate is, by will, given to different persons, or in different proportions, from those prescribed by law ; and these are the only possible cases in which the same ques- tion could be brought up in actions of ejectment. Thus, we see, that the sentences, or decrees of a judge of probate as much respect real, as personal estate. The will is to be proved and approved in the same man- ner; the inventory must embrace both ; distribution is in like manner to be made, whether this estate be testate or intestate; and each kind of estate is eventually a fund for the payment of debts, and may be sold for that pur- pose under an order of the judge. The only difference is, that, as a general rule, the personal fund must be ex- hausted before resort can be had to the real estate for the satisfaction of debts. But we are told, that, in the exercise of all these pow- ers, a court of probate does nothing more than the or- - dinary may do in England; and that a distribution under an order or decree of that court does not conclude the SUPREME COURT OF ERRORS. 325 LAKE. question of title, as between the heir and devisee. Why, June, isog. and how far, then, is a similar sentence or decree con- J UDSON elusive in the case of personal property ? Our statute makes no distinction as to the effect and operation of such decree in the two cases. Stat. Conn, ut sufi. It would surely be thought a strange proposition to lay down, that one who claims the personal property of a deceased testator, under the statute of distributions, should be permitted to try the validity of the will, after probate, in an action of trover against the legatee. It would be thought equally absurd, that the heir, after pro- bate, should be permitted to try the same question in an action of ejectment; if our notions on the subject had not been confused, by blending, in our view of it, the rules of the English system with our own. But, if the construction now contended for had been less obviously just, in the beginning; if there had been even some doubt respecting the operation of decrees of probate upon devises of real estate ; still that construction is established by long, and uninterrupted usage, under our system. When a will is presented to probate, to be proved, &c. is it not established in our practice, that the heir may appear, and contest its validity ? Upon the principles contended for on the other side, this is a usage without law; for he is no party to the proceedings in probate; and, indeed, those proceedings, so far as they respect his rights, are coram non judice. Further, if the decree of probate, in such case, esta- blish the will, has not the heir a right to appeal; and then further, as the case may be, to bring a writ of error ? If the proceedings in probate, as far as thry respect the rights of the heir are void, as being coram non judice, and if he is no party to them, he plainly has not; for the statute allows an appeal, only in favour of those, who arc "aggrieved with the judgment, sentence," 326 CASES DETERMINED IN THE June, 1809. &c. of a cotirt of probate. Slat. Conn. tit. 42. c. 1. s. 95. JuDsoN ^ et no Pi nt * s better settled, than that all this may be v - done; our practice has been uniform from the beerin- UA.K.E. mng. 1 he heir appears as a party before the court of probate; he takes his appeal to the superior court, and then brings his writ of error to this court. After all, shall he be permitted to turn around, bring his action of ejectment, and go over the entire ground again? Has not the subject matter been adjudicated upon ? If not, our highest courts have been employed, strangely enough, in trying cases, which they had no power to .determine. The decision in the case of Bush v. Sheldon^ 1 170. would seem to settle the point, that the heir may be a party to a decree of probate, and that, in a class of cases to which the jurisdiction of that court does not more clearly extend, than to those like the present, such decree is conclusive. BY THE COURT. The only question necessary to be decided in this case is, whether the probate of the will of Mrs. Lake is not conclusive regarding the validity of the will, until it is reversed on appeal to the superior court ? And we are of opinion, that the law is so, that the will must stand until such reversal takes place. The statute of this state gives to the courts of probate cogni- sance of the probate of wills, and allows to all parties aggrieved an appeal to the superior court. Every mat- ter pf law and fact regarding the validity of wills, both as they respect real and personal estate, is confided to the courts of probate; and the decisions of those courts, while they stand unreversed,, are as conclusive as the decisions of any other courts of record on matters within their jurisdiction. New trial not to be granted. SUPREME COURT OF ERRORS. 327 Jane, 1800. JONATHAN TOWNSEND against SHIPMAN WELLS. WRIT of error. ' In an action on a promis- sory note for The declaration was as follows: That the defendant, JJ^JJJJ *J in and by a certain writing or note, under his hand, by good West- him well executed, dated the 30th duy of June, 1806, sugar, oi",,' 9 . promised the plaintiff to pay to him, for value received, ^eaion'offht the sum of eighty dollars, to be paid in good West-India Pyee, wit/an . ._ eight day af- rum, sugar, or molasses, at the election of the plaintiff, ter diite, 'it to be paid in eight clays next after the date of said note, EfaiSLiJ^ as by said writing or note, ready in court to be shown, J at to *[ appears. Now, the plaintiff further says, that the de- payee made fendant, his promise aforesaid not regarding, hath never and ^av^no! performed the same, though often requested and de- IlfeVmni 1 " nuinded; which is to the damage of the plaintiff," 8cc. as l "e latter was bound, at all events, to To this declaration the defendant demurred; and the ! k ? . P 8 ^ iiieni in one tufierior court adjudged the same insufficient. of the article* specified with- in eight days, Bradley, for the plaintiff in error. became^'"^ mediately li:r ble. The exception to the declaration is, that it has no allegation that the plaintiff made, and notified the de- fendant of, an election of what articles mentioned in the note the plaintiff would receive in payment. It will be agreed, that if the defendant had, on the day, tendered to the plaintiff one of the articles mention- ed in the note, the plaintiff, to avoid the effect of the tender, must aver, that he had elected to receive pay- ment in the other articles, and that he had given the defendant reasonable notice of his election; and imu 1 state the time and place of such notice, that the cour 328 CASES DETERMINED IN THE June, 1809. ma y judge of its reasonableness; and that the defend- ant may, if he choose, plead the tender, and then TOWXSEND T. traverse this notice. WELLS. If the plaintiff would claim the benefit of an election, he must make it; and if he makes it, as it is a matter con- fined to his own knowledge, he must notify the defend- ant of it. But he might waive the benefit, if he chose; and then the right of election would devolve upon the defendant. There are cases, in which, in an action upon a con- tract, it is necessary that performance of something be averred by the plaintiff, in order to perfect his right of action. The first case is, where the promise is made upon express condition of something to be previously done by the plaintiff. In the present case, there is no such condition; but the contract is absolute, that the defendant will pay in runt) sugar > or molasses, at the election of the foluintiff. A second case of the kind specified is, where the con- sideration of the defendant's promise is executory; as if the contract be to build a house. Here, the plaintiff must aver performance. But in this case, the consideration is executed, and the plaintiff acknowledges in this note, that he has re- ceived the value of his promise. The cases in which the defendant is entitled to notice from the plaintiff, are those where the performance of the act, on which the plaintiff's right of action arises, is secret and unknown to the defendant; and also where the defendant cannot know what he has to do, except by information from the plaintiff; as would be the case of an SUPREME COURT OP ERRORS. 329 agreement to account before auditors such as the plain- June, isoi). tiff should assign, or to execute such a deed as the TOWNSEND plaintiff should devise, or pay the plaintiff's costs of v - such a suit. Com Dig. tit. Pleader, (C. 73.) In the present case, the defendant promises, for value received* to pay the plaintiff eighty dollars worth of rum. sugar, or molasses, at the choice of the plaintiff. Here, the undertaking is intelligible and certain; and although a power is vested in the plaintiff to vary the duty of the defendant, yet he has not varied it, but left the election, in the defendant. Suppose the plaintiff, on the day on which these articles were to be delivered, had gone to the defendant, and told him, " I have no choice to make ; pay me as you please ;" would not the defendant have been thereby put to his election with respect to the manner of satisfy- ing this contract ? But it can make no difference whe- ther the plaintiff expressly refused to make an election, or merely neglected to make it. In both cases, the plain- tiff waives the right of choosing; and, from the nature of the case, the defendant mubt know it. This contract is expressed to be for value received, and is wholly for ihe benefit of the plaintiff. Now, he for whose benefit a contract is made, may waive any advantage of it, if he chooses so to do; and if he can waive the whole, he may a part; but a waiver of a part does not discharge the obligation to perform the residue. In this case, the plaintiff waives his right of election with respect to these articles; but that is no waiver of his right to receive some of these articles in payment of his debt, and such as the defendant may choose to deliver. VOL. 111. Un 330 CASES DETERMINED IN THE June, 1809. If ^. should engage to build and paint a house for B. f TOW\!E and the latter should afterwards declare to him, that he would not have the house painted; this might excuse A. for not painting the house, but would be no reason why he should not build it. Suppose an election had been given to the plaintiff with respect to the place of payment; if the plaintiff had given reasonable notice to the defendant, he must tender at the place appointed; but if the plaintiff made no elec- tion it would follow, not that the defendant was not boui4 to pay at all, but that he might tender at either place. mentioned, according to his own election. Peters, for the defendant, contended, that the omission of an averment in the declaration, that the plaintiff made his election, and gave reasonable notice thereof to the defendant, was fatal. In support of this general excep- tion, he relied upon the following propositions: 1. That in an action on contract for collateral articles, payable on demand, the plaintiff must allege a demand, specifying the time and place, or his declaration will be ill. Dean v. Woodbridge, \ /?oof, 191. Smith v. Leavens- worth, 1 Root, 209. 3 Bac. Adr.713. Dub. edit. Fitzhugh y. Dennington, 6 Mod. 227. 2. That whenever an obligee has an election, with which the obligor is bound to comply, the election is part of the contract, and must be made in due time, and alleged in the declaration. 1 Bac. Abr. 432. Dub. edit. Grmningham v. Ewer, Cro. Eliz. 396. 539. Bulley v. Hubbins, Cro. Car. 571. Holmes v. Twisty Hob. 51. iamb's case, 5 Co. 24. JBaeket T. Basket^ 2 Mod. 200 SUPREME COURT OF ERRORS. 331 BT THE COURT. June, isoa. ToW.VSEND Such a construction must be given to the note as will preserve the rights of the parties unimpaired, and, at the same time, leave the promissor bound for the payment) until the note is satisfied. The note binds the promissor to pay the promissee eighty dollars in rum, sugar, or molasses, within eight days of the date. The promissor has the right, therefore, of making payment in one or the other of these articles. The promissee has, also, by the condition of the note, a right to elect, within the eight days, which of the articles he will receive in pay- ment. But this right of election must not be exercised in such a manner as to defeat the right of the promissor to perform his contract, by delivering the article select- ed within eight days. Hence, it follows, that the pro- missee must elect, if he intends so to do, in such season as will allow the promissor time to deliver the article within the eight days ; and if he delays beyond that time, the promissor may, and is bound to perform his contract, by delivering one of the articles stipulated for. And the defendant, having failed to perform his contract within the eight days, became immediately lia- ble on the note. Judgment reversed 332 ASES DETERMINED IN THE June, 1809. JOSEPH HAMILTON and REBECCA, his wife, against JOSHUA HEMPSTED. jr. flensed his MOTION for a new trial. lands to his 3('i /'. and his if a h e e he ihoi!d This was an action of ejectment by the plaintiffs, have no male j n tne r iht of the wife, claiming title to the demanded heir, then to . hisdaughters; premises as tenants in common with the detendant, and thouid'* die alleging an actual ouster and exclusive possession by the without issue, defendant. then to the daughters of Jl Held, that _. . . , , , B took an es- The general issue was pleaded. tate-tail. By the common law of ton- On the trial, -it appeared, that Joshua Hemfisted the estate-tail he- first devised the premises by a will dated the 17th of tate* in" fee- Gctober ^ 1683, to his son Joshua Hemfisted the second, simple in the with this clause of limitation : " Which lands, (to say,) all issue of the ... . . _ first donee in the lands given him, shall accrue unto the heir male or my said son, and not to be alienated; but if it should In 170~, the please God, he should have no heir male, then it shall be- General As- sembly of Con- come his daughter and daughters; and if it should please no^sfTfar par- God, ne should die without issue', then to be divided ted with their amO ))g my daughters, all or so many of them, as shall judicial Wh ; . . . * 'thority as to be then living." Erecludethem om award- ing new trials In 1689, the testator died. No executor being named e in the wil1 ' tizai > e ^ widow of the testator, took out letters of administration in 1690, and proceeded to set- tle the estate as an intestate estate. On the 1st of October, 1706, the will was presented, by Joshua Hemfisted the second, to the court of firobate in New-London county, for probate, which was refused. The record of that court is as follows: " At a Court df Probate, held in New-London, October the 1st, 1706. SUPREME COURT OF ERRORS 333 Mr. Joshua Hemfisted appearing at this court, pre- sented the will of his deceased father, Joshua Hemfisted, HAMILTON for probate; and this court, considering there is no ex- HEMPSTEB. ecutor appointed in said will, and that the court have granted administration on said estate sixteen years ago? and also, there being two children of the testator now surviving, which were born since the will was made; for the above recited reasons this court do not see cause to give a probate to said will." From this decree an appeal was taken, the record of Which is as follows: " Joshua Hemfisted has an 'appeal from this judgment to the court of assistants to be hoi- den in Hartford in May next. He, the said Joshua Hemfiated, acknowledges himself bound in a recogni- sance of ten pounds, current money of New England, to the public treasury of Connecticut colony, that he will pro- secute the abovesaid appeal to effect, and answer all da- mages in case he make not his plea good." This appeal was entered at the court of assistants, in October, 1707, who thereupon proceeded to act on the same, and established the will. The record of their decree is as follows: " This court, considering the pre- mises, do approve and allow the said will to be the last will and testament of the said Joshua Hcmfigted, decea- sed, and that the disposition of his estate ought to be regulated by it; always provided, that the children born since the date of the will be allowed their portions out af the whole estate equal to the daughters born before the will was made, to be deducted out of the portions f all of them by proportion, according to what is allow- ed to each of them by the wilt" Elizabeth, the widow, and Joshua, the son, of the testator, vrrr, at the time, appointed administrators. 334 CASES DETERMINED IN THE June, 1809. In October, 1708, John Edgcomb and said Elizabeth, HAMILTON wnom ne ha d married, preferred a petition to the general * assembly for a new trial, which, after a full hearing, was granted. The reasons, which the record assigns for this decision, are, first, that the appeal from the court of probate was entered, not at the next court of assistants, but at the next court but one ; and secondly, that the ap- pellees, now petitioners, had neglected to take a review of the decree, which they might have done. In October , 1709, a new trial was had, before the court of assistants^ and the will established, according to the principles of the decree made two years before. Joshua Henlfisttd the second then went into possession of the premises. His title was afterwards confirmed by releases from the other heirs and claimants. On the 27th of November, 1758, he made his will, whereby he devised the premises to his grandson Joshua Hemfisred the third, son of his eldest son, Natha- niel Hemfistfd, deceased, and " to the male heirs of his body lawfully begotten, by a succession for ever from ge- neration to generation." This will, after the testator's death, was regularly proved and approved. Joshua Hemfisted the third died, seised of the premises, without a will, leaving sundry children, male and female, of whom Rebecca Hamilton was one. The defendant was son of the eldest son of Joshua Hempsted the third, and claimed under the second will as the heir to whom the estate was limited. In support of this claim, he contended, first, that the will of Joshua the first was not legally proved and ap- proved; secondly, that by the words of that will, Joshua the second took an estate in fee-simple; and lastly, that if 4 SUPREME COURT OF ERRORS. 335 he took an estate-tail, it could not be inherited by a June, 1^09. female defendant. The court instructed the jury, that the law was so, upon the facts which have been stated, that the will of Joshua the first was duly proved and approved ; that th demanded premises were thereby entailed to Joshua the second; and that the estate became a fee-simple in Joshua the third, the issue of the first donee in tail. The jury, in pursuance of these instructions, found a verdict for the plaintiffs; whereupon the defendant mo- ved for a new trial. This motion was reserved for the consideration of the nine judges, before whom Law and Cleaveland, for the defendant, insisted upon the same positions, which had been urged and over- ruled on the circuit. 1. The will in question was not exhibited for probate, until many years after the death of the testator. The court of firobate then refused to allow it. From this sentence no regular appeal was taken. The statute then in force made provision for an appeal from any order, sentence, decree or denial, that should be made by the court of firobate^ referring to the approbation and al- lowance of any will, to the NE.XT court of assistants, and to no other after. The proceedings on the appeal, which was taken to the next court but one were, there- fore, void, being coram non judice. The subsequent pro- ceedings of the general assembly could not remedy this defect. The rights of the parties had become vested in pursuance of the decree of probate. The general assembly ', therefore, could not interfere in their legitlatrve capacity ; and as to the subject matter 336 CASES DETERMINED IN THE June, 1809. of this application, they had parted with their judicial authority. 2. It is clear, that by the "English law, the words of this devise, in a deed, would not create an estate-tail. In a devise, it is true, their courts would give effect to the intent of the devisor. But there, the policy of the law is in favour of entailments. The policy of our law is opposed to them. 3. The law, at the time of making this will, was not so, that an estate-tail became a fee-simple in the issue of the first donee in tail. By the statute, which was then in force, and which had existed from a very early period of the government,(a) all persons were fully authorized to make all laivjul alienations of their lands and other estates. To determine what was a u lawful alienation," reference must be had to the law of England. It was to this law that the framers of the act had reference, when they used those words. The law of England was our law, except where it had been altered by express statute, or where it was peculiarly opposed to the policy of our law. In practice, entailments have been regarded as operative here to the same extent as they are in En- gland; and, in pursuance of this idea, tenants in tail in this state have suffered common recoveries. Gurley and Isha?n, contra. 1. The will of Joshua the first was legally proved and established. The judgments of the court of assistants, both in 1707 and 1709, in express terms, allow and ap- prove of the will, and direct that the disposition of the estate be regulated by it. (a) Vide Stat. Conn, lit. 8. s. 1. and note (1). SUPREME COURT OF ERRORS; 337 It is said, however, that the devisee did not appeal to j une> 1309. the next court, as he was bound by law to do, but to the HAMIL i ON next but one. This, we contend, is wholly immaterial. v - The court of assistants did take cognisance of the ap- peal; and their decision has never been reversed, or set aside. It cannot now be inquired into collaterally, Bush v. Sheldon^ \ Day, 170. Besides, the general assembly, on petition, ordered a rehearing for this very irregularity, among other things; and a second confirm- ation of the will took place, on such rehearing. That the awarding of new trials in the subordinate tribunals was a power, which the general assembly, even at a later period, had the right to exercise, has been settled, by a decision of the Suftreme Court of the United S(utes Calder et Ux. v. Bull et Ux, 3 Dal. 386. 2. The will in question gave an citate-tail to the devisee. The intention of the testator is the pole-star, by which vre are to be guided, in the construction of a will. Lord Kenyon says, " We almost spell every word in a devise to get at the intention of the testator." In the case of Roe, ex dem. Dodson, v. Grew et al. 2 Wils. 324. IVilmoty Ch. J. observed, that cases in the books upon wills had no great weight with him, unless they were exactly in the very point: the intention was the great thing which governed him. In this will, the in- tention of the testator is too obvious to require any remarks to evince it. The language of this devise corresponds with the description of an estate- tail in England. The words 11 of his body" are not necessary in a will to create an state-tail; it is sufficient, it the limitation be to the tS* VOL. III. Xx 338 CASES DETERMINED IN THE June, 1809. tator's seed, or his heirs male, or hi* posterity, or if any H ., words are used which show an intention to restrain the fi A M I I, T O N v inheritance to the descendants of the devisee. Co. L^tt.. HEMPSTED. 9. b. 27. a. 2 hia. Com. 115. and note (10), by Christian. The court will supply the words i- of his body" Denn t ex dem. Slater, v. Slater, 5 Term Refi. 335. Further, in this will there is a limitation over: " But if it should please God he should die without issue, then to be divided among my daughters," Sec. making an estate-tail, not by construc'ion or implication merely, but technically so. A devise to one, and the heirs of his body, and their heirs for ever, creates an estate-tail, if qualified by the words, in case he shall die 'without issue. Denn, ex dern. Geering, y. Shenion, Coivji. 410. 3. Our statute regarding entailments was in affirmance of the common law. It was introduced at the revision in 1784, by the committee of revision, not for the purpose of changing the law, but of sanctioning an unwritten canon, by an explicit legislative provision. But it is unnecessary to inquire what the law was be- fore the passing of that act. It was clearly intended to have a retroA/ttftfve'apknliaQ. After declaring prospect- ively, that no estate, either in fee simple, fee-tail, &c. shall be given, See. it proceeds to declare, that all estates gi-vt-n in tail shall be and remain en absolute estate in fee-simple. Chafifiel v. fireivster, Kirby, 175. BY THK COUJIT. The proceedings in the probate of the will are conformable to the usage and practice of that period; for the general axzembly then exercised ex- tensive judicial power, especially in granting new trials. And it would be of dangerous consequence to set aside such ancient proceedings, because they do not appear to be conducted with ail the regularity of modern times. SUPREME COURT OF ERRORS, 339 In the construction of devises, the intent of the devi- j unc> 1S03 sor, collected from the whole devise, is to be pursued, ji AJ J~. if thai intent is consistent with the poliry of the law. Though the words ' hrir male in fierfietual succession" would coinpreliend his heirs male generally; yi t, when taken in connection with the other words in the devise, l\\-X(. if the devisee liun no h,ir male, then to his daughters^ and if no ?s,vr, thru to (he daughters of the devisor, it is manifest, that the devisor intended the heir male of hia body begotten; and that his object was to create an estate in fee tail. Our courts have never adopted the fee conditional at common law, nor the statute of Westminnter 2d, called the statute de donis ; but from the principle, that the law abhors a perpetuity, they have decided, thut a deed or devise, usLig words proper to cixate an estate in fee tail, should vest an estate in fee-simple in the issue of the first doni-c in tail: -And the statute on that subject has been considered to be in affirmance of the common law. New trial not to be granted. 340 CASES DETERMINED IN THE Jone, 1809. NATHANIEL HEMPSTEAD against TARED STABR- A. on the eve MOTION for a new trial. ot a failure, made a gene- of hu'^ffect* This was an action of trover, for certain goods, wares, and gave im- an( j merchandise, specified in the declaration. mediate pos- session, to B. oneoHiiscre- The defendant pleaded the general issue. * dltors, intrust to satisfy the JB. Ki aC eiv O n tlie tr * a l> it appeared, that the plaintiff was an tam other me- officer, and had taken the goods in question as the pro- ritonoiis cre- ditors specifi- perty of Francis Hazard, by virtue of three attachments ed, and to pay ... . . over the sur- against him. The defendant claimed them as his pro- BhouidbeaM 1 - 6 P ertv b ? virtue of the following bill of sale from Hazard: to the credi- Know all men by these presents, that 1, Francis Hazard^ tors g neral- p f - ly. C. and D the town or New- London, in the county ol JVew- specian'y S "a- *' ondon * and state of Connecticut, for the consideration mti, soon af- f one thousand dollars, received to my full satisfaction tached those of Jared Starr^ of said town of New-London, have sold,, hands 8 of H. transferred, bargained, assigned, and conveyed to the as the proper- g^jj j are d Starr, his heirs and assigns for ever, and by ty of .//. Held, that this con- these presents, do bargain, sell, transfer, assign and veyance was not by law convey to the said Jared Starr, and his heirs and assigns aaYnstlhe 1 at- * r ever a ^ tne ^ r y goods, groceries, hardware, crockery tachtneut of ^ a re, and wet goods now in my store or stores in New- dredrtors. London, a schedule or inventory whereof is hereunto an- nexed,(a) for him the said Jared Starr to have and to hold the same to his and his hejrs* own proper use and be hoof for ever. And I hereby covenant to and with the said Jared Starr, that I have good right to bargain and sell the same, and bind myself and my heirs for ever, to warrant and defend the above bargained property and goods to (a) There was a particular inventory of the several articles appead- ed to the bill of sale, which it ia unnecessary to insert here. SUPERME COURT OF ERRORS. 341 him the said Jared Starr, his heirs and assigns for ever. June, uu?. Always provided, and these presents are upon condition, H^ M P- that whereas Jared Starr, Daniel Douglass, Josiah Doug- STEAD laas, Reuben Langdon, Stefihen Holt, Henry Truman, and STARK Charles Hazard, all of said New-London, have severally, at my instance and request, endorsed my notes of hand, and are liable to pay money on my account, the said Jared Starr for about the sum of two thousand dollars, the said Daniel Douglass for about the sum of fifteen hundred dollars, the said Josiah Douglass for about the sum of six hundred dollars, the said Reuben Langdon for about the sum of three hundred dollars, the said Stefihrn Holt for about the sum of one hundred and fifty dollars, the said Henry Truman for about the sum of fifteen hundred dollars, and the said Charles Hazard for about the sum of two thousand dollars. And whereas also I am justly indebted to Ebenezer Learned, of said New-London, in the sum of one hundred and fifty dollars, or thereabouts, for money lent, and also to Mrs. Jane Stewart, of said New London, for money lent to the amount of one hundred and fifty dollars, or thereabouts, and to Jeremiah F. Jenkins, of Providence, for goods sold for him on commission, for about the sum of three hundred dollars, and also to Amos Cross, of Westerly, for money which I have borrowed of him to the amount of three hundred dollars, or thereabouts. Now, if I well and truly pay each of said notes, and save the endorsers thereon, and every of them harmless from the payment of any money on said notes, which they may endorse to continue and run said old notes, and also well and truly pay to each of said persons to whom I am indebted for bor- rowed money, and for goods sold on commission, such sums as I respectively owe them, then the above and foregoing instrument to be void; otherwise, to be and remain in full force, power and virtue. It being, how- ever, always understood, and it is my intention therein, that the residue or surplus ol property, if any, after pay- 342 CASES DETERMINED IN THE June, 1809. ing and discharging the above -mentioned debts to endor- nTvn>- sors. and those who have lent me money, shull be for the STEAD use and benefit of all my creditors generally. In witness STARR, whereof, I have hereunto set my hand and seal, this 5th day of Marchy 1808. " Francis Hazard" This bill of sale was executed at the time it bears date, on the eve of Hazard's failure; and the goods spe- cified therein were actually delivered to the defendant, and deposited in his store, before the morning of the next day, and before the service of the attachments by the officer. Mr. Clta-veland, the attorney for the creditors, named as plaintiffs in the attachments, then went to the defendant's store, and informed him of their several demands, and that he should direct the officer to seize those goods as the property of Hazard. After this, in the forenoon of the same day, Hazard drew orders on the defendant, in favour of most or all those creditors, who were named in the bill of sale, which were immediately accepted by the defendant conditionally " to be paid as far as said goods should avail on the sale thereof." In the after- noon, the attachments were levied; but the goods were not removed from the defendant's store. It was admit- ted, that the creditors rained in the bill of sale, and in the attachments, were buna fide creditors. The goods were sold by the defendant. On those facts, the court, in their charge to the jury, instructed them, that if a debtor, ontheeve of a fai.ure, make a bill of sale, or convey- ance of his effects to one of his creditors, therein direct- ing him to convert the same into money, and pay himself and certain other favourite creditors therein named, with this condition annexed, that if any surplus should be left, after discharging the debts due to such favourite credit- ors, it should be applied to the discharge of his debts 4 SUPREME COURT OF ERRORS. 343 due to his creditors generally, surh bill of sale or convey- j unej ,j. () ^ ance, is !jy law frauciulent, end invalid* -against the legal attachments of creditors. They, there fore, directed the s jury to fiiid a verdict for the plaintiff; which was uc- STARR. cordingly done. The defendant excepted to this direction of the court to the jury; and thereupon moved tor a new trul, which motion was reserved for the consideration of the nine judges. Goddard and Luto, in support of the motion. 1. There ought, at any rate, to be anew trial; because the case should hnvt been left to the jury as a quebtion of Jact. The court should not have dim-ted the jury positively, that this assignment was fraudulent in I.' but should have su'>miu-.jd it to them to say whether it ivus fraudulent in fct. In Exfwi'.k v. Caillard. 5 Term Re/i. 42 <: '. J at the trial, left it to the jury to consider, whether a fraudulent transaction was proved; and the whole court sanctioned this direction, by refu- sing to set aside a verdict ii> pursuance of it. The ground they proceeded upon was, that there were no extrinsic circumstances to show that .my fraud was in- tended. But if it was a mere question of Ijw whet li- the conyeyance was fraudulent, why should inquiry be made respecting cxtrinxic circum*(anct .v, ar.d an intrn- tion of fraud ? So, in IngLisa el at. v. Grant, 5 Term Rcfi. 530. Lord Kenyan stated, as the giound of the decision of the court, that the transaction was perfectly Lir at the time, and without any fraudulent intention, and that the grantor acted honestly in executing the deeds. These are circumstances proper for the jury to consider, and decide upon. 344 CASES DETERMINED IN THE June, 1809. 2. But admitting that it was competent for the court HEMP- ' direct tne jury peremptorily on the question of fraud, STEAD we contend that the direction given was incorrect. Here STARR. we are relieved from most of the circumstances relied upon, in other cases, as badges of fraud. The pro- perty was actually delivered; the creditors were not only bond fide, but meritorious creditors; they were lenders of money, endorsers, and those who had intrusted goods to sell on commission. The only questions, which can arise, are, whether a debtor may, in this state, give a preference to any of his creditors; and whether a transfer to a trustee for certain creditors, is valid. It is the policy of our law to give a preference to the vigilant creditor. If a debtor will not voluntarily give up his property to satisfy a debt when demanded, the law will compel him to do it, by attachment. What is done voluntarily by the party, ought to avail as much as what is done compulsorily by attachment. That the prefer- ence in this case was given on the eve of a failure can make no difference; for we have no statutes of bankrupt- cy, nor does the common law recognise the principles of such statutes. [SWIFT, J. said he considered it as settled, that a debtor may prefer his creditors; and the counsel did not pursue the argument on that point.] No reason can be given why an assignment to trustees for the benefit of creditors should not be as valid as to the creditors themselves, except that the assent of the creditors is wanting, or that the assignor retains some control over the property. As to the first of these, it is sufficient to observe, that the assent of the creditors will be presumed until their dissent be shown. In The Countess of Gainsborough \. Giff"ord, 2 P. Wins. 424,. 430. the assignee did not know of the assignment; but this was held to be no objection SUPREME COURT OF ERRORS. 345 to its validity. A thin v. Barwick, \ Stra. 165. is to June, 18119. the same effect. The Chief Justice suid, that in such H^MP- case, the contract does not stand open till agreement, s ' EAD but is complete, unless there is an actual disagreement. STAR*. But from the statement of the principal case, it appears, that there was an actual, assent of the creditors, as they took orders in their favour, drawn by Hazard on the defendant. In the next place, what control had Hazard over this property, after making the assignment ? We answer confidently, none at all. No part of it was ever to revert to him, or be subject to his direction. By the terms of the deed of assignment, it was to be applied, in the first place, to the payment of the claims of certain creditors therein named, and then, if there should be a surplus, it was to . go to the creditors generally. The defendant had a perfect right to sell it, or control it at pleasure, until his own debt, and the debts of the other creditors, were paid. Clraveland and Gurlry, contra, relied principally upon this ground: That Hazard made a general conveyance of his effects for the bent-fit of all hia creditors, and that some of those creditors dissented, and attached. The conveyance, of course, could not be valid with respect to any. In the cases cited by the counsel for the de- fendant, all the creditors assented, (or it was so presu- med,) and claimed the benefit of the assignment. They also contended, that this general conveyance, upon the eve of a failure, was a fraud upon the attath- merit law of this state. Where the object is to evade that law, the act is void, just as it would be in England if it oncraU-cl as a fr.uid upon the bankrupt law. JBrown't Executor* v. Burrr It, 1 /foor, 252. and Hovry \. CYr, ibid, wi re cited. [SwiFT, J suid, the case of Hovey v. VL. III. yY 346 CASES DETERMINED IN THE June, 1809. Clark was incorrectly reported: No sort of inference HALSEV ought to be drawn from it.] BROWN. BY THE COURT. The bill of sale is not on the face of it fraudulent, although the whole transaction may have been a fraud as against creditors. The facts disclosed on the motion do not warrant the decision of the court, that the bill of sale and conveyance was by law fraudulent against the attachment of credit- ors, nor the charge to the jury on that point. New trial to be granted. In an action against the owners of a vessel, for a quantity of gold and silver coin, taken by the master at JVevis, on freight, evid- ence of a cus- tom of mer- chants in Con- necticut and New-York, that the freight of mo- ney received by the master is his perqui- site, and that he is to be personally li- able on the contract, ant! not the ow ers, was In ! to be a blft. SILAS P. HALSEY against JESSE BROWS, JESSE BUOWN> jun. ZEBULON P. BURNHAM, and DYER PERKINS. MOTION for a new trial. This was an action of assumfisit, brought against the defendants as owners of the brig Eliza, for 65 penny- weight of Portuguese and S/ianish gold, and 100 Sfianisk milled dollars, shipped by the plaintiff at JVevis, on board said brig, to be transported, and delivered to a mercantile house in New-London, for which the master gave the plaintiff a bill of lading in the usual form. The defendants pleaded the general issue. On the trial, the defendants offered to prove, that there was a usage or custom of merchants existing in the state of Connecticut, and at JVeiv- York, that the freight of money received by the master of a vessel was his perquisite ; that he was to be compensated for the trans- SUPREME COURT OF ERRORS. 347 V. BROWN. portation of it, and not the owners of the vessel; and that June, 1808. the contract was considered as being personal, and of HALSEY individual obligation, but not as the contract of the owners. To the admission of this evidence the plaintiff objected. The court overruled the objection, and ad- mitted the evidence. The defendants thereupon obtain- ed a verdict; and the plaintiff moved for a new trial. The question being reserved for the opinion of the nine judges, argued in support of the motion. 1. The law rendering the owners liable for goods re- ceived by the master to be transported is settled. The contract of the master is the contract of the owners; his non-delivery is their non-delivery. The maxim applies here reajiondeant sufieriores. Abbott, 8894. Ellis v. Turner, 8 Term Ke/i. 533. 2. The law upon this point being settled, no usage of merchants could be admitted. Usage is admissible only in explanation of doubtful points. Edie et al. v. Eaxt-India Company, 2 Burr. 1216.; particularly the opinions of Lord Man xjield, p. 1224. of Justice Denison, p. 1226. and of Justice Foster, p. 1228. Afar ah. on Int. 609. 3. If proof of any usage were admissible to the point under consideration, still the usage proved in this case was inadmissible. The contract was entered into at Jfevit, a foreign country. The usage of merchants in Connecticut was perfectly irrelevant as to the construc- tion to be given to it. Robinson v. Bland, 2 Burr. 1078. This contract was not made vrith a view to the laws of tins state; much less with a view to any special usage. 348 June, t809. HALSEV V. BROWN. CASES DETERMINED IN THE Further, evidence was admitted to prove the usage of Nfw-York. The contract was not made there; it was not to be performed there ; neither of the parties lived there. The usage of Kamfischatka might as well have been admitted: 4. But it will be said, that the master was to receive the freight. That this circumstance makes no difference is settled by the case of Boucher v. Lawson* Cos. tem/i. ffardw. 85. dbbott, 89. This perquisite diminishes the wages of the master; and, in that way, goes to the bene- fit of the owners. G odder d, contra. There is no question before the court as to the liabili- ty of the owners. The court did not instruct the jury, that the usage was to control the law. The objection to the evidence was merely, that it was irrelevant. To support the objection, it must be shown, that the evi- dence could not be admitted to prove any case, which could be made out under the declaration. fJSwiFT, J. The question which was meant to be re- served was, whether this usage could be admitted to ex- plain the law.J * Goddard then contended, that no case was to be found, embracing the circumstances of this case, in which the owners had been held liable ; and that it was proper to shew the general usage and understanding of merchants in this state, where the defendants lived, in order to get at the true construction of this contract. Having shown the usage here, what objec'.ion could there be to proving that it existed at New-York also ? Does the universality of the usage render it the less proper to be received ? Its existence at New- York came in incidentally. SUPREME COURT OF ERRORS. 349 BY THE COURT. The question in this case is, whether j une> isog. evidence of a particular custom or usage can be given in evidence to control a general law. v. WEBTCOTT. The general law applicable to the commercial world, that owners of vessels are answerable for the contracts and conduct of their masters, when acting within the scope of their authority, must be admitted. But as it is a principle, that the general common law may be, and in many instances is, controlled by special custom; so the general commercial law may, by the same reason, be controlled by a special local usage, so far as that usage extends; which will operate upon all contracts of this .nature, made in view of, or with reference to, such usage. We are, therefore, of opinion, that the evidence of- fered to prove the particular usage in this case was ad- missible. New trial not to be granted. ISAAC STOYEL against AMOS WESTCOTT, jun. WRIT of error. An action rounding in tort against Jt. This suit Mras originally commenced in August, 1805, an bJuUtui . . - cil the Blale of and was brought before this court, on a writ of error, Ektde-Mmdt in June, 1807; when the judgment of the superior ".'^iunt"' 'of court was reversed, for the insufficiency of the declara- " tte, be- in hfoohi 10 350 CASES DETERMINED IN THE June, 1809. tion.(a) The cause being remanded to the superior STOYEL court, and entered on reversal, the declaration was JVT vv - amended by stating the date of the writ by virtue of WESTCOTT. which Westcott arrested Stoyel, and the court to which that writ was made returnable. Stoyel then pleaded anew, (Carder having died since the commencement of the suit,) the plaintiff' replied, and the pleadings termi- nated in a demurrer. The court gave judgment for the plaintiff. The defendant then brought this writ of er- ror, setting forth the whole record in the court below. A new ground of error being now relied upon, it be- comes necessary to state, that this action was brought against Stoyel and Carder, by a writ of attachment dated the 8th of August, 1805, returnable to the Wind- ham county court, on the third Tuesday of that month; that Stoyel was described as " of Foster, in the county of Providence, and state of Rhode-Island," and Carder of KiUingly, in Wlndham county ; that service was made by attaching property, and leaving a copy with Carder ; and that the writ was duly returned. The record of the county court, so far as it respects the appearance and pleadings of the parties, and the judgment thereon, is as follows : " The defendant (Carder) in court, defends, pleads, and says, that the plaintiff's declaration, and the matters therein contained, are insufficient in the law; all which he is ready to verify, and thereof prays judgment. " Parish, for said Carder. { * The plaintiff says his declaration is sufficient. " Backus and Learned, for the plaintiff, (a) Vide 2 Day, 41 S. 4 SUPREME COURT OF ERRORS 351 Windh&m, ss. County Court, August term, 1805. June, 1809. STOYEI. " Amos Westcott, jun. of Killingly, in the county of Windham, plaintiff; William Carder, of said Killingly, and Isaac Stovel, of Foster, in the county of Providence, ajid state of Rhode-Island, defendants. " In a plea of the case, demanding one thousand dol- lars damages, with cost, as per writ on file, dated du- gust 8th, 1805. The parties appeared; the defendant Carder in court demurred to the declaration of the plaintiff; and the plaintiff joined in said demurrer, as on file. This court are of opinion, and adjudge, that the declaration of the plaintiff is insufficient in law. Thereupon it is considered by this court, that the de- fendants recover of the plaintiff their cost." The plain- tiff appealed to the superior court. The history of the cause subsequent to that period, has already been given. Stafilea and Evarts, for the plaintiff in error, con- tended, that the judgment ought to be reversed on the following grounds: 1. That the declaration was still bad: first, because the writ by virtue of which Weitcott arrested Stoyel, as set forth, gave him no authority to make the arrest; secondly, because matters were joined in the declara- tion which cannot be joined. 2. That the plea in bar was a complete answer to every material allegation in the declaration ; as it con- tained direct and positive allegations, which it was ne- cessary to demur to, or traverse, or avoid by new mat- ter. 3. That the replication was clearly bad ; but yet ad- mitted in terms the truth of the plea in bar as pleaded. 352 CASES DETERMINED IN THE June, 1809. 4. That the superior court could not render any judgment against Stoyel, as the cause was not regularly before them. WEST co TT. To all these exceptions Daggett and Goddard, for the defendant in error, replied; and the case was very fully argued on both sides. But as the decision turned solely on one of the points, and that least considered by the counsel, a particular report of the arguments is deemed unnecessary.(a) BY THE COURT. It appears from the record in this case, that Stoyel y one of the original defendants, was an inhabitant of the state of Rhode-Island; that judg- ment in the county court was rendered the term to which the action was brought, without any appearance on the part of Stoyel, or plea put in by him; and that he was in no way party to the cause, until after the same was appealed, and entered in the docket of the superior court. The proceedings of the county court were there- fore void;(6) and the cause in the superior court was in the same situation as any other cause would be entered there without process. The proceedings and judgment of the superior court must, as a necessary consequence, be erroneous, and ought to be reversed. Judgment reversed. (cO For the same reason a particular statement of the pleadings ia the superior court is omitted. (6) Vide Stat. Conn. tit. 6. c. 1. s. 3. by which it is provided, that " if the party against whom suit is brought, is not an inhabitant, or a sojourner, in this state, or is absent out of the same, at the time of commencing such suit, and doth not return before the first day of the court's sitting, the judges of the court \vhere such suit is brought, shall continue the action to the next court; and if the defendant doth not then appear, (by himself or attorney,) and be so remote, that the no- tice of such suit depending could not probably be conveyed to him during the vacancy, the judges, at such next court, may further con- tinue the action to the court thence next following, and no longer, but may enter up judgment on default after such continuance, or continu- ances." SUPREME COURT OF ERRORS. 353 June, 1809. JOHN Mo WATT, jun. against JOSEPH How LAND, JOSEPH ROWLAND, juu. and JESSE BROWN. MOTION for a new trial. -? ! S. of New-York, and C. Of This was an action of asmmfisit, in which the plaintiff c^^,/ 11 declared, as the holder of a bill of exchange, against Win^ breu partners in the defendants as endorsers. tm.ie. dissolv- ed (heir part- nership, and Tlie ffowlands suffered a default. Brown appeared, P"i>i's''i no- tice ot such. and pleaded the general issue. -J,oiuton, jun. of Mm- York, and Jtsse Brown, of jYurwich, in",! % fter- Connrcticut. Their usual place of doing business was ";' n!s ^'I''" 1 ' 8 : ed ;> 'nil of at Norwich. On the 14th of May, 1806, they dissolved i-x nf in their partnership, and published notice of such dissolu- w j t j, ,i ie com . tion, for several weeks successively, in two newspapers, J""- v " H " ie ; 1 ? but whether one in Norwich, the other in New-London. The settle- tl> ci- mittcd to Brown; and the company name extinguished 'I'j^ at the banks, and insurance offices, and the dissolution no * .appear; there publicly known. The plaintiff lived in Nrw- j,,. ar , tlmt he York; but whether he had, or had not, actual notice of the dissolution did not appear: nor did it appear, that -i't ihc company. he had ever been a correspondent of the company. On n,id, " that iln'sc facts ennntituti-i! i.'itii-r to him, and to every oilier person not a ccrrcspindent of tin- cum;, The facts, which arc supposed to constitute notice of a dissolution of partnership being ascertained, it u a question of Itr.v whether th<- noric- l>c rc-asonaWo, or ny the mortgage, was given for the payment of part of the consideration of the first; and, of course, usurious. The plaintiff contend- 353 CASES DETERMINED IN THE June, isoo. ed, that no usury was reserved in the first note; and KU^BOURN although it should be found, that usury was reserved therein, yet that it was* proved, that upon the giving of the second note, which was secured oy the mortgage, and v- inch grew out of the first, all usuty reserved in the first note was given up by the plaintiff, and never re- ceived by him ; and, of course, no usury was reserved in the second note. The court directed the jury, that if they should find no usury in the first note, to find a verdict for the plaintiff; and that, although they should find that the first note was usurious, yet if they should find, that upon giving the second note, all usury in the first note was abandbned by the plaintiff, and never received, nor any part thereof reserved in the new note, they should, in that case, find a verdict for the plaintiff. The jury returned a verdict for the plaintiff, therein finding, that the matters alleged in the defendant's plea were not true, nor were any of them true. The de- fendant thereupon moved for a new trial; and the court reserved the motion for the opinion of all the judges. Daggett and N. Smith, in support of the motion. The direction of the court to the jury consists of two parts. . To the first, we take no exception. The se- cond, we contend, is erroneous; and it is not the less so, because it does not appear from the statement con- tained in the motion, but that the facts in the case were such, as to warrant the verdict which was found, in con- formity to the first part of the direction, without regard to the second. But one verdict was found; and that was upon the whole case. If the second part of the di- rection was correct, the facts to which the first related were perfectly immaterial. As to these facts, the jury might say, we will not inquire, since it is fully proved, that upon the giving of the new note, all usurious inte- SUPREME COURT OF ERRORS. 359 rest, if there was any originally, was expunged. If an June, 1S09. erroneous charge has been given to the jury, which KlL ^~ii RN might have had an influence on their verdict, this court v. BHAULEV. Will grain a new trial. In the English courts, it has been determined, and is now settled, that a new security, substituted for one originally usurious, is void. This point was expressly decided in Tate v. Welling*, 3 Term Rcfi. 537. Lord Kenyan said, as the former bond mentioned in the case was the consideration of the one on which the action was brought, if that were void as being given for a usurious consideration, most undoubtedly the Later would be also void. In the celebrated case of Walton v. Shelly, \ Term Refi. 296. it was taken for granted, both by the bench and the bar, that if the two promis- sory notes, the delivering up of which was the con- sideration of the bond on which the action was founded, were contaminated with usury, the bond was void. In Cuthbert et al. v. Haley, 8 Term Rr/i. 390. it was ad- mitted, that if the bond, and the notes for which the bond was substituted, had been between the same par- ties, the bond would have been void. But admitting, that the second note cannot be con- sidered as a continuation of the first, the consideration of the second was, at any rate, usurious. What was that consideration ? Money due on a former contract to pay more than lawful interest. It makes no difference, whether it was for a part, or for the whole, of the money so contracted to be paid. The whole, and every part, was contaminated with usury. Take, however, the sup- position, that those notes were partly good, and partly bad; it will still be difficult pe- nalty, unless he a tuully takes usury; and courts of equity, on relieving against oppression or extortion, order the repayment of the sum really loaned, or due, with the lawful interest. The moral obligation of the borrower to repay the principal sum actually loaned, with the lawful interest, is unimpaired. If the lender will expunge the usury, and the borrower voluntarily assents lo repay the sum loaned with lawful interest, it is an act of justice forbidden by no principle of public policy, and which constitutes a good consideration for a new contract. New trial not to be granted. 364 CASES DETERMINED IN THE June, 1809. TUDOR WOODBRIDGE & Co. against TIMOTHY P. PERKINS. In the assign- MOTION for a new trial. ment '>f a book debt, no- tice to the This was a scire facias against the defendant, as the dfspensabie m a g ent > attorney, factor, trustee and debtor of John T. for until such JDuryee. of New- York, an absent and absconding debtor. noticeisgiven, the property the assignor's The defendant pleaded, that he was not the agent, &c. possession, of sa ; d John T Duryee, nor had he any effects of said and is liable * for his debts. Duryee in his hands. On the trial to the jury, it appeared, that the plaintiffs left a copy of their writ against Duryee with the de- fendant on the llth of October, 1806. Prior to the 21st of July, 1806, the defendant was indebted to Duryee, on book, to a larger amount than the plaintiffs' claim. On that day, Duryee executed a deed of assignment of his debt against the defendant to Joshua Waddington and James Thomfison of New- York, as security for a large debt due to them, with a power of attorney to collect and receive the money. The defendant had no notice of the assignment until the 13th of October, 1806, two days after he was served with a copy of the plaintiffs' writ. Under these circumstances, the plaintiffs con- tended, that the assignment was ineffectual, and they were entitled to recover. Waddington, in the name of the defendant, insisted that the assignment was suffi- cient to protect his interest in the debt against the claim of the plaintiffs. The court decided, and so in- structed the jury, that the plaintiffs were entitled to re- cover, on the ground that the defendant had, no notice of the assignment until after service of the plaintiffs' pr- SUPREME COURT OF ERRORS. 365 cess; and, therefore, directed them to find a verdict for June, 1809. the plaintiffs ; which they accordingly did. WOOD- BRIDGE V. The defendant then moved for a new trial, on the VERKINS. ground of a misdirection ; and the court reserved the quesiion for the consideration of the nine judges. A". Smith and Bristol, in support of the motion. There is no question as to the power of Duryee to transfer his interest in this debt to another; nor is it denied, that the instrument executed for this purpose , was appropriate and legal in its form. Why, then, did not the property vest immediately in the assignees? Bee 'use, it is said, that no notice was given ,to the dehtor. But could not the property fiass without such notice ? Is notice an essential part of the transfer ? There can be but two parties to the transfer; the party who makes it, and the party to whom it is made. It is a contract between them, and them only. When thfir minds meet, the contract is formed. It is not pretended, that the debtor is entitled to any voice in the transac- tion. His assent is not requisite. The transfer de- pends solely upon the deed of assignment. The want of notice only leaves it in the power of the assignor to deprive the assignee of any benefit of the assignment. The debtor will be protected in payment to his ori- ginal creditor, so long as he is ignorant that any one else is entitled to receive payment. It will, therefore, be prudent for the assignee to give notice for his own security; (Jones v. Gibbons, 9 Ves. jun. 410.) but the transfer has taken place, when the notice is gi\cn. This is implied in the very notice given ; which is, that the debt hat been assigned. Further, if notice be an essential part of the contract, the assignee could not hold until notice given, though 366 CASES DETERMINED IN THE June, 1800. there should be no laches in giving notice. The assign- \Vooi>- ment, in this case, was made in New-York, on the 21st K v of July. Suppose the assignees had immediately des^ PERKINS. patched a messenger with notice to Perkins; but before he cpuld possibly arrive at Har'ford, though subsequent to the assignment, the creditors of Duryee had attached this debt. Upon the principle contended for, they would hold against the assignees. This, we apprehend, would be going great lengths. In Univin v. Oliver, cited 1 Burr. 481. no notice was given, and yet the transfer was held good. The same observation is applicable to Winch v. Keeley, \ Ti-rm Refi. 619. The replication in that case does not state that any notice was given. In Ryali v. Rolle, \ Jltk. 165. the conveyance was not impeached on the ground of want of notice. The argument derived from the plaintiffs' having the legal title proves too much: It proves, that they would hold after notice given; for Duryee still has the legal title. The suit for the debt must be brought in his name after notice as well as before. Have tlfe plaintiffs disclosed any facts, by which they show, that this transfer was fraudulent as against them? We do not controvert the position, that a sale of per- sonal property, which is left in the possession of the vendor, is fraudulent. But there is no analogy between that class of cases and this. As to personal property, the reason of the rule is, from Twyne's case in Coke, to the 9th of East, that leaving it in the possession of the vendor is an actual fraud: It deceives creditors. But here Duryee did not exercise any acts of ownership over the debt after the assignment. He deceived, and could deceive, no one. The case is as free as any case can be from actual fraud. The direction of the court 4 SUPREME COURT OF ERRORS. 567 goes this length that in every possible case of an as- j un e, 1809. signment of a debt, notice must be given to the debtor, \v~7o- as soon as the relative situation of the parties will admit BKIDGE V of, or the assignment will be fraudulent as against the creditors of the assignor. To vindicate this direction, it must be shown, that the omission to give notice is a fraud tier tie. But want of notice, e x natura rci, is at most -dfact from which fraud is to be inferred. Whe- ther there was fraud, or not, in any transaction, must necessarily be a question of fact. In cases of fraudu- lent conveyances, the several badges of fraud do not constitute fraud fier se. The statute 21 Jac. I. c. 19. s. 11. makes the possession of property by the bankrupt, of which he is the reputed owner, and over which he exercises acts of ownership, subject to the disposition of the commissioners, as though it were the properly of the bankrupt. This provision would have been unne- cessary, if the statute of 13 Eliz. had rendered such possession a fraud fier se. Even in Edwards v. Harben, 2 Term Rrfi. 587. which carried the rule to its extent, il was admitted, that the nature of the possession may be explained. This shows, that it is only a badge of fraud. It is the constant practice of judges at nisi /irius^ in cases of possession, after an absolute -sale, to leave il to the jury aa a question of fact, whether there was fraud in the transaction. Thus did Lord Kldon, in Kidd v. Lawlinson, 3 Es/i. 52. and the jury finding that there was no fraud in fact, gave a verdict for the plaintiff, which the court of common fileas afterwards refused to set aside. 2 Don. & Pull. 59. In Hoffman v. Pitt, S Jia/t. 22. Lord Ellcnborough said, the not taking posses- sion was, in some measure, indicative of fraud, but was not conclusive. To make it absolutely void, there must be something, that showed the deed fraudulent in the concoction of it. Again, can the court say what is reasonable notice 368 CASES DETERMINED IN THE June, 1809. from New- York to Hartford? This, also, is a question WOOD- offset? What if some accident has intervened ? What BHIDGE i s reasonable notice is never a question of law, except PEUK.INS. with regard to bills of exchange; and that exception rests upon mercantile principles. Daggett and 5. Smith, contra. It is a general rule of law, that a sale of personal pro- perty, though upon good consideration, is fraudulent and not valid, as against the creditors of the vendor, unless the contract of sale is accompanied and followed by trans- fer of possession to the vendee : possession being the only mark, by which the ownership of goods can be known. The same fiolicy from which originated the law requiring that transfers of real property should be rendered noto- rious by the delivery and recording of deeds, would also seem to require that the sale of personal things should be attended with as much notoriety as is practicable, without subjecting such transactions to an inconvenient restraint; since it is equally necessary in the one case, as in the other, to guard against those impositions which might be practised, by reason of a false appearance of wealth. In the present case, we will inquire, if such be the general rule, to what extent it is applicable to contracts respecting the sale of personal things; and whether as- signments of choses in action are not comprehended within the same rule ; so far it can be made to operatej at once, on things in possession, and things merely in action. And also, whether this case can justly be ex- cepted from the operation of the rule, upon any prin- ciple which has yet been established. As to the existence of the rule. It was resolved in Twyne's case, 3 Co. 80. that the gift there in question had divers marks of fraud, among which were "that SUPREME COURT OF ERRORS. 369 the donor con'inucd in fiossession^ using the goods as his June, 1809. own;" ar.d that 4> th< re tuan a trust between the fiartits ; WOOD- for '.hat the donor fiunsenntd all, and used ih.ein as his firo- BRIDGE v. per goods" Lord Cokr adds, as a caution to purcha- PERK.IXS. sers, " immediately after th<: gift-, take possession of them; for continuance of .the /louse union in the donor in a sign of eru.it." In the case of Ryall v. Rolle, 1 A!k. 165. it was determined, that a co. ditional sale by one to his partner, of his moiety of the joint stock, was void, as against the creditors of the vendor; because the vendor, after the sale, was permitted to continue in appearance the partner of the vendee. The general doctrine of the necessity of changing possession is likewise clearly supported by Lord Mansfield, in IVorseley v. Demattos, 1 Burr. 467 a:.d is directly established in Edwards v. Harben, 2 Term Ke/t. 587. in which the defendant took from A. a bill of sale of certain goods, taking posses- sion of some trifling article in the name of the whole, but a.^rreing to kav.r the goods in the actual possession of A. for fourteen days; within which period A. die d. At the end of that time, the defendant took possession of the goods. This action was brought against him, as exerutor de son tort; and sustained, on the ground that A?* continuing in possession was inconsistent with the deed, and fraudulent. On the same principle was the de ision of Ham/ :ron, 2 Term AY/. 594. in notig, and of I'ug>-t v. P'-r/iard, \ /;*/>. 2')j. Tiiesc cases, indeed, except perhaps the last, arose upon the construction of the statutes of 13 KHz. and 21 Jac. I. But the statutes of Eliz. have been considered declara- tory of the common law. And in liijall v. Kolle, Burnr ti J. said, that such con'rarts Id to be fraudulent atcommoi, l.iu ; and ' ion Parker^ that fraudulent de* ds might be at common law. Above .ill, we have the opinion of I f lf the common law, at no:a nnivrrnatl'i k Voi. Ill 3 B 370 CASES DETERMINED IN THE June, 1809. understood, are so strong against fraud in every sha/ic, WOOD- l ^ at ( ^ e common to would have attained every end firo- BRIDGE p ose d by the statutes 13 Eliz. c. 5. and 27 Eliz. c. 4." In PERKINS, the supreme court of the United States, the same prin- ciple has been adopted, and the authority of Edwards v. Harden recognised, in Hamilton v. Russell, 1 Cranch, 309. But it is said, in support of the rule, that the re- taining of possession by the vendor is not, per se, fraud, but only evidence of fraud. Though the contrary doc- trine was held in the case cited from Cranch; yet, if we admit this, it will not at all oppugn the general princi- ple contended for ; since every equivocal fact may be explained, to show its precise nature and tendency; al- though, in 'ii < ases now under consideration, the facts will be fixed by the firima facit evidence respecting them, unless pauicular circumstances are proved, in order to except them from the operation of the general rule. The position is not, however, true in the extent; for until this explanation is made, a sale without pos- session is holden to be fraudulent in point of law. [See 2 Term Rep. 596. See also 1 Cranch, 318.] These ex- ceptions form a separate class of cases, wholly distin- guishable from those before cited, and from that now before the court; and will serve to show to what extent the rule contended for is applicable. With respect to the sale, or mortgage, of ships at sea, it has been held, {Atkinson v. Mating, 2 Term Rep. 462.) that the delivery of possession need not accompany the deed of sale; as this would be to require an act of which the performance would be impossible, but the grand bill of sale must be delivered; and this is suffi- cient, if th; vendee take possession immediately on the ship's arrival at home. So of an assignment of goods at sea, the delivery of the bills of lading and endorse- ment over ot the policies of insurance, was held suffi- cient; the vendor having, after this, no longer the order SUPREME COURT OF ERRORS* 371 and disfiosition of the goods. (Brown v. ' Heathcote, 1 June, 1809. Atk. 160.) But where the owner of certain vessels, WOOD- used only in navigating the river Thames, mortgaged BUI DOE them, and after kept possession for three years, and PERKINS. borrowed money upon the credit of being owner, they were held liable to be sold under a commission of bank- rupt against the mortgagor. (Stephens v. Sole, cited 1 Atk. 157) The decisions of the cases of Bucknal v. Roiston, Pr. Ch. 285. Cadogan v. Kennel, Cowfi. 432. Hanelinton v. Gill, 3 Term Reft. 620. n. Jar man v. Wool- lotun, 3 Term Re/i 618. Kidd v. Rawlinson, 2 Bos. & Pull. 59. Hoffman \. Pitt, 5 Esfi. 22. and some others, were on the ground, that the vendor might retain pos- session, consistently with the deed, the trust appearing on the face of the deeds, and the transactions being evidently clear of fraud ; and Butter (JV. P. 258.) says, " but yet the donor continuing in fiossession is not, in all cases, a mark of fraud; as where the donee lends his donor money to buy gooda, and at the same time takes a bill of sale of them for securing the money;" and so was the case of Muggott v. Mills, 1 Ld. Raym. 286. and of Kidd v. Rawlinson, before cited. Here the parties were not, before the sale, in the situation of debtor and creditor. [See 2 Bos. & Pull. 60.] Having shown, as we imagine, the existence of the rule requiring that a transfer of possession should accompany the deed of sale of personal things, and that it is applicable to all contracts of sale, where, from the situation of the goods, an actual delivery is no! impracticable, and where the retaining possession by the v< ndor is not fairly con- tistrnt with the deed, the contract having. cleaMv, no fraudulent operation, we p' <> injuiic- wh.-ili, ; sigiuncnts of c/toses in action are not comprehended within the same rule; so fur as it can be made to operate, at once, on things i i possession, and things merely inaction. A, m.iv be r< n; 1 1 : , gene- rally, that the terms goods, chattel*, effects, comprehend 372 CASES DETERMINED IN THE Jane, IHG9. choses in action: and it was so held in Ford and Sheldon's WOOD- case, 12 Co. 1. and in Kyalt v. Rolle. And in the statute BRIDGE respecting absconding debtors, it is declared " that debts PERKINS, due to any such absent and absconding debtor shall be con- sidered as his EFFECTS." (Stat. Conn. tit. 14. c 3. s. 5.) The inference, therefore, must be, that a general rule respecting goods, chattels* effects, will, if restrained by no reason operative on the particular case, always ex- tend to choses in action. Consequently, we observe, that, as in cases of the sale of goods, the vendee is not to permit the vendor to retain the control and disposition of the goods, so, by parity of reason, in assignments of choses in action, it is the duty of the assignee imme- diately to withdraw them from the control of the as- signor ; that is to say, this act, to conclude creditors, must accompany and follow the deed of assignment. This is to be done by delivery to the assignee of the- specialty, or written evidence of the debt, if such there be, and notice to the debtor. On this point, it is certain, that fraud can be as easily practised, the public may be as thoroughly blinded, and creditors as effectually lulled to security, by a secret assignment of debts, as by a sale of goods without transfer of possession. From principle no argument can be drawn to justify an assign- ment of debts without delivery of the writings, and no- tice to the debtor, which will not directly invalidate the rule deduced from the authorities we have before cited. And it is in vain to rely on technical distinctions founded on the supposed difference in nature between choses in. action and tilings personal in possession. For wherfe prevention or suppression of fraud is the object, courts have disregarded such distinctions, and have exercised murh liberality both in the construction of statutes, and in decisions at common law. We rely not alone, how- ever, on abstract principle. On this point the plaintiff's case is abundantly supported by authority. And, first, we will recur again 'to the case of Ttvyne; in which the SUPREME COURT OF ERRORS. 373 opinion of Lord Coke supports this, as well as the former j unej jggg. part of our case. " Whtn ANY GIFT shall be to you in ~ V OOD- satift faction of a debt, by one who is indfbfd to others BIUDGE also. Let it be made in a ftublic manner, and before the neighbours, and not in firivuft, fur secrecy is a mark >,f fraud." Surely, there may be a "gift" of debts as well as of goods; and such "gift" may be as well made in firi-vate, or without notice; and would, if known, as ef- fectually destroy the donor's credit, and alarm his credit- ors, as a transfer of his goods to secure a favourite credit- or. The opinion of Chief Baron Parker, in Ryatlv. Ralte, 1 jitk. 177. is also in point. " If a bond is assigned, the bond must be delivered, and notice must be gi-ven to the debtor; BUT IN ASSIGNMKNTS OF BOOK DEBTS, NOTICF, ALONE is SUFFICIKNT, because thtre can be no delivery* and tuck acts are equal to a delivery of goods which are capable of delivery." So 1 Poiv. on Mori. 28. where, after mentioning the necessity, on an assignment of a bond, of a delivery of the bond, he says " Ufion the same firinci/tlc, debts mentioned in a schedule, though not ca/ia- ble of delivery, may likewise be assigned conditional/:/ ; but in such cane, notice to the ficraons indebted seems to be indisficnsably necessary to firotect the assignee," &c. The same principle is also found in the civil law. (Domat, vol. 1. b. 1. fol. 61.) " Things incorfiorcal, such as an inheritance, a debt, or any other right, cannot firofierly be delivered, no more than touched; but the fioiuer of using them is in lieu of delivery. Thus the teller of a right of icrvicc does, an it were, deliver / //, when he suffers the buyer to make use of it. Thus he who sells or tranafers a debt, or any other right, gives to the buyer or assignee a kind of possession by the fioivcr which he givet them to exercise tnit right, in CAUSING THK TKANSFHI TO BK INTIMATED IN THK DEBTOR, who, after the said intimation cannot own any other master^ or fiossessor of this right, but the assignee to whom it is transferred" While we arc considering the general principles applicable to ihi: ra->c, it will 374 CASES DETERMINED IN THE June, 1809. proper to tuke notice of a position advanced by the \VOO~D- counsel who argue in support of the motion, that " to BRIDGE vindicate the charge of fraudulent intent, it is necessary PERKINS, to make out that want of notice is fraud fier se." This position is incorrect both in an abstract a: d a practical point of view. There is no necessary affinity between fraudulent intent and want of notice. Men may, and often do, act with honest intentions, both in a moral and a legal sense, and yet act secretly ; on the contrary, one may act openly with very mischievous designs. But the observation can have no practical application to the questions which have been raised in this case. For though want of notice be not necessarily and of itself a fraud, yet the policy of the law may declare certain transactions to be fraudulent that is, that such transac- tions shall be treated in the same manner as if the in- tentions of the parties were actually fraudulent, unless they are made known in a certain, prescribed manner. And for this purpose, the law may announce to the par- ties entering into a contract, that unless this contract is notified to a particular person, within a specified time, it shall be held to be a fraudulent contract; provided it is not shown from the contract itself, that it can have no such effects as might have resulted, had it been made with views actually fraudulent. So far as this, want of notice is fraud fier se; or if the term firima facie evidence is more acceptable, we will grant it to be such, only. Such evidence is conclusive, until it is contradicted. The remaining question is whether the case under consideration can justly be excepted from the general rule respecting the sale of goods and assign- ments of choses in action. The circumstance that notice was actually given, though not till two days after the plaintiffs' attachment, seems not to be relied on. And indeed had these plaintiffs attached goods in Duryee's store, and Messrs. Waddington, &c. having a bill of sale, 4 SUPREME COURT OF ERRORS. 375 executed three months before, had contrived to get June, is 19 the goods out of the sheriff's hands, two days after the -\v^^,. attachment, they might claim to hold them, by a trans- BRIDGB fer of possession, accompanying and following the deed PEUKINS. of sale, with just as good grace, as they could notr challenge this debt, by virtue of the notice. It is granted us, that Perkins, previous to his receiving no- tice, might safely have paid the debt to Duryee. It was, therefore, until that event, Duryee's debt ; and, as such, it might be, and was, attached by Tudor Woodbridge & Co. But a subsequent act of the assignees could not affi ct the rights of the attaching creditors. It is, how- ever, objected, 1. That notice to the debtor constituted no part of the assignment; 2. That the property of the debt is transferred by the assignment itself; 3. If notice is a part of the contract, the assignee could not hold, until notice had been given, though there had been no neglect to give notice; 4. No act of ownership was exercised by Dur- yee; 5. No false credit is obtained by taking an as- signment of a book debt, without giving notice ; and giving notice does not prevent any person from being imposed upon. To these objections we answer, 1. That after the execution of the deed of assignment, the transaction re- mained inchoate, until consummated by notice. The 2d objection is overthrown by another argument of the gentleman, viz. " that the object of notice i> merely to prevent payment to the assignor;" for if the contract itself transferred the property of the debt, after the contract, the property of the debt no longer remained in Duryee; and payment could no more be made to him than to a stranger, who had never owned the debt. 3. We are not inquiring what length of time shall be allowed the assignee to give notice. Until notice, the assignee must run his own risk. 4. It docs not appear that acts of ownership were, or were not, exercised IT 376 CASES DETERMINED IN THE June, 1809. Duryee. He could have exercised such acts by dis- AvTTo- charging or compounding the debt. 5. A fictitious show VKIDGE o f credit can as easily be kept up by an assignment of PERKINS, a book debt, without notice, as by a sale of goods with- out transfer of possession ; and this is a very stiong case to prove it. Tudor, Wo^dbridgf & Co. and Perkins re- sided in Hartford; Duryee in New-York; between them all there existed a constant intercourse of business. From the course of business Tudor, IVoodbridge & Co. must have known, that Duryee had large sums due him in Connecticut; and they could not hesitate to trust him on the credit of these debts, especially as they were at all times liable to attachment. Suppose, then, that Per- kins had been duly notified of this assignment. Can it be said, that Tudor, Woodbridge & Co. would not have discovered it ? The knowledge of such an ev*nt would never have been confined to Perkins. Duryee's credit must have been instantly ruined; for no act could be more fatal to it than the assignment of his books to secure a creditor. After this, would Tudor, Wo'jdbridge & Co* have trusted him ? Or if they had already done it, would they have spared any exertion to obtain imme- diate security ? It cannot, then, be said, that such an assignment gives no false credit to the assignor; or that it does not expose other persons to imposition. We need only add, in the words of Lord Hardnvicke, ( 1 Atk. 185.) " that very great inconveniences may arise by giving an opportunity to people to make such securi- ties, and yet appear to the world as if they had the owner- ship of all those goods of which they are in possession, when perhaps they have not a shilling of property in them." BY THE COURT. Where there is an assignment of a book debt, until notice of this assignment is given to the debtor, he remains the debtor of the assignor, and SUPREME COURT OF ERRORS. 377 HALE v. HALE. of course cannot be the debtor of the assignee; June, 1 809. it being a rule of law, that where there is sule of personal property, the possession of such property must be changed from the vendor to the vendee, or it will be liable to the creditors of the vendor. So in the case of an assignment of a bond, or note of hand, there must be a delivery of the bond or note to the assignee, and notice of the assignment must be given to the obligor, or promissor; for, until that is done, the obligor or promissor remains a debtor to the obligee or promisee. And although there can be no delivery of a book debt to the assignee; yet all that can be done ought to be done. Notice, therefore, is indispensable; for until such notice is given, the assignor remains in full possession of the book debt; and his debtor is in- debted to him, until he has notice of the equitable claim of the assignee. The court do not, therefore, advise a new trial. New trial not to be granted. JEHIELHALE against EI.ISHA HALE. WRIT of error. In.n.ctlonof no-. .ii. i. ^lie- Tins was an action of account, brought by Eliaha Hale E,^''"'^! against Jthiel Hale. ' ' " ll " t built u ship andt-r an HRII-I inc'nt, that each hou1f the ex- pense, and u equal moiety of the avails ; that she received a carp', utid was *ent to Hultimort \>y the plaintiff ami defendant; tin i.i-t-, l.y direction i.f the plaintiff and defendant, sh. w nt to /Minion with a cargo On freight; iu! after* unls pop- formed M-\r. .,1 .1 In r M \ :,., - nli :< i-jii-^o u ti eight, and Has, atlaM, hold at Cadiz, and that the defendant n r-i-d nn-i-i 1 iii;n fii* proporti f ilu lii|>, l>, and "intl;. ' nd;n .1 i|,, ., the pHrtie*, it u as ju- |i r !<>r the auditor* to iuquirc iuto the oaraiug* ol" the ihi^ nd the- IIISM incirlcnUl to the voyage*. Vol.. 11 T. A C J78 CASES DETERMINED IN THE June, 1809. The declaration stated, that in September, 1800, the plaintiff and defendant began to build a certain ship, v - called the Columbia, as partners, it having been agreed, by them, that each should pay or contribute an equal moiety of the expense of the ship, and that each should receive an equal moiety of the avails. She was finished in November, 1801; and the plaintiff paid more than his proportion of the expense, -viz. two thousand dollars. In the course of the same month, after receiving a cargo on board, she was sent, by the plaintiff and defendant, on a voyage to Baltimore; from thence she sailed, in Febru- ary, 1802, by direction of the plaintiff and defendant, on a voyage to London, with a cargo on freight, where she arrived in Ajiril, 1802; and afterwards performed other voyages, -viz. one from London to Genoa, with a cargo on freight; and from thence to Cadiz; at which last place she was, in August, 1802, sold and disposed of; and the defendant received more that his proportion of the avails of the ship, both of the voyages and the sale, -viz. three thousand dollars over and above the one moiety of the avails, to account, Sec. The defendant having suffered a default, there was a judgment quod comfiutet ; auditors were appointed; and an award was made, in the plaintiff's favour, for 2,149 dollars and 18 cents. The defendant remonstrated against the acceptance of this award for the following reasons: 1. That the defendant was required to account as the plaintiff's bailiff, and partner, in building and selling the ship Columbia, and was charged to be indebted only as having received of the sales of the ship more than his proper proportion, and as having contributed towards the building of the ship less than his proper proportion ; yet, before the auditors, the plaintiff offered to prove, by SUPREME COURT OF ERRORS. 379 his own oath, and other testimony, that the plaintiff and June, 1809, defendant were partners in navigating and freighting H\LE the ship in her several voyages. To the admission of ,. v- this evidence the defendant objected; but the auditors admitted it. 2. That the auditors allowed plaintiff ISO/, lost by the plaintiff, by reason of his own default, in the purchase of a bill of exchange, drawn upon John Broome, in favour of the plaintiff; which bill was not received in payment of said ship, or for her freight and earnings. 3. That the auditors allowed the plaintiff 472/. 4.?. for a quantity of dollars seized by the revenue officers at Cadiz, forfeited by the plaintiff's neglect in entering them for exportation, and with intent to defraud the govern- ment of Spain of its duties; though it was proved before the auditors, that the plaintiff knew the dollars would be liable to condemnation, if not entered. 4. That the auditors allowed the plaintiff 54/. 4*. lOrf. for 41 dozen of shoe patterns, purchased by the plaintiff, on his own private account, at Grnoa, which were seized at Cadiz as forfeited to the government of Sfiain, by reason of the plaintiff's personal misconduct; and that the auditors allowed the plaintiff 30/. money left at Carfiz, to defray the expenses of prosecuting his claim for the shoe patterns and the money. To the allowance of these several claims the defend- ant objected before the auditors; but his objections were overruled. To this remonstrance the plaintiff replied, 1. That as to the first exception, the allegations an not true. 380 CASES DETERMINED IN THE June, 1809. 2. That as to the second, the plaintiff proved before HAI.E * ne auditors, that said bill of exchange was purchased HALE ^ ol a S ooc ' ^ill, with money received for the sale of the ship, and for the joint interest and benefit of the plain- tiff and defendant. 3. That as to the third, there was no proof that the dollars were seized by reason of any misconduct of the plaintiff in not entering them, or of any transaction of his at Cadiz; and that the residue of the exception was not true. 4. That as to the fourth, the shoe patterns were pur- chased for the joint benefit of the plaintiff and defend- ant, with money received for freight of articles on board said ship, in Genoa currency, which money was not current in any other country. The plaintiff tlun denied that it was proved before the auditors, that they were purchased on his private account, or that they were for- feited by any fraudulent conduct of his; and averred, that the SOI. was left to prosecute the joint claim of the plaintiff and defendant; and that all he did was by vir- tue of full power to act in all respects for the joint con- cern of the plaintiff and defendant, which fact was proved before the auditors. The court found, that the allegations in the first ex- ception were true; but adjudged them insufficient. The second exception they adjudged insufficient. The third they found not true. The fourth they held to be suffi- ciently answered by the facts stated in the plaintiff's re- plication, which they found to be proved. The award was thereupon accepted. Ingersoll and Daggett^ for the plaintiff in error, con- tended, 381 SUPREME COURT OF ERRORS. 1. That the first exception to the award was good; j une , because the declaration did not charge the defendant in a*, count for any arrears, except in the building of the ship, and the avails, that is, the proceeds on the . sale. Before the defendant can be called upon to ac- count for the earnings of the ship, it must appear, that as to those earnings he was the plaintiff's bailiff; and this for two reasons: first, that he may have the i.otice \vliich he is entitled to, of what he has to defend against: and secondly, that the judgment in this case may here- after be pleaded in another action. But this declaration dops not allege that the voyages which the ship per- for.ned were undertaken for the joint benefit of the plaintiff and defendant, or that they were jointly inte- rested in the freight. [The counsel did not rely on the second exception.] 2. That the third exception ought to have prevailed ; for though that part of it, which was denied, was found untrue, yet a part of it was admitted by the plaintiff in his answer thereto, and the fact so admitted clearly was not the subject of inquiry under this declaration. 3. That the loss on the shoe patterns was an adven- ture, in which there cannot be a pretence that the de- fendant was concerned. By the finding of the court, it appears, indeed, that the shoe patterns were purchased with money received for freight. But admitting that the. plaintiff and defendant were jointly concerned in this freight, docs it follow, that the plaintiff had, of course, a right to lay out the money for shoe patterns ? Could the pl.tintiff, by his own act, make the defendant a part- ner witti him in these purchases ? Because .4. and B. we partners in the building and sale of a ship, does that make them partners in every kind of traffic ? Could 382 CASES DETERMINED IN THE June, 1809. the defendant have claimed a share of the profits if there had been any ? V. ' El . 4. That the money paid to regain the dollars and shoe patterns must follow the fate of the articles ; and, therefore, the auditors should not have made the de- fendant account for it. . Brace and Diwght, for the defendant in error, insisted, that the declaration covered the whole case. It is alleged, that each was to pay half the expenses of build- ing the ship; and that each should receive half the avails. It is, however, contended, that the " avails" means the proceeds of a sale. But it is not used solely in that sense in this declaration ; for the concluding averment is, that the defendant received the avails, both of the voyages and of the shifi. The earnings of the ship, \yhile navigating for their joint benefit, are as much avails as the proceeds of the sale. The auditors, then, did right in admitting the evidence. Should it be conceded, that the voyages from London to Genoa^ &c. were undertaken without the defendant's consent, or approbation; yet it is alleged, that he re- ceived more than his moiety of the freight as well as the sale, and his receiving the avails of those voyages ratifies the plaintiff's conduct, as fully as if it had been within the letter of a power of attorney. The same answer may be given to the purchase of the bill of ex- change, and to the purchase of the shoe patterns, Sec. BY THE COURT. The demand is, that the defendant render his account for the time the parties were con- cerned, as copartners, or joint owners, of the ship. And it is conceded, that they were joint owners from the time she was built until she was sold at Cadiz; but it is contended, that there are not sufficient averments in 4 SUPREME COURT OF ERRORS. opr v Oc the declaration, of their being jointly concerned in all the ju ne , 1809. voyages she made while they continued owners. H v. It is averred, " that it was agreed, by and between the plaintiff and defendant, that each should pay and contribute an equal moiety of the expense of the ship, and receive an equal moiety of the avails thereof." And again: " that the ship received a cargo in A*o- -oetnber- 18ol, and was sent to Baltimore by the plaintiff and defendant; Irom thence, by the direction of the plaintiff and defendant, to London; and afterwards she- performed several other voyages [specifying them] until she arrived at Cadiz in Sfiain, in the month of August, 1802, where she was sold; and the defendant received more than his proportion of the avails of said ship, both of the voyages, and of the sale thereof." The plain and obvious meaning of these averments is, that they continued joint owners of the ship from the tijne she was built until sold in Cadiz, and under their direction ; and that they were equally entitled to the avails of the ship and freight. It was proper for the auditors to inquire into the transactions between the parties relative to the build- ing of the ship, and all her voyages, until she was sold. The averments in the declaration embrace the whole of that time. And in order to adjust their accounts, it was necessary they should admit the proof objected to by the defendant. If the voyages from London to Italy, and from thence to Sfiain, had been undertaken without the consent of the defendant ; yet, as he received the avails ihcrcuf, it \?as an approbation of the plaintiff's conduct. 384 June, 1809. BULL v. BULL. CASES DETERMINED IN THE The defendant had an opportunity, before the auditors, to show, by his own relation under oath, what sums he received for the vessel and the freight. This action is an appeal to the party before the auditors for a disclo- sure under oath by our statute.(a) Judgment affirmed. (a) Tit. 4. A power to two execu- tors to sell k dispose of an estate, in such way and man- ner as they shall judge most benefi- cial to the de\isees, will not give one of them a power to sell, aor will it authorize one or both to en- ter upon and occupy the estate. WILLIAM C. BULL against JAMES BULL. MOTION for a new trial. This was an action of ejectment. The general issue was pleaded; and upon trial to the jury, the plaintiff, who was the son and heir of Wil- liam W. Bull, deceased, claimed by virtue of a devise of Caleb Bull, deceased, to William W. Bull. The de- fendant was an executor of the will of Caleb, and claim- ed by virtue of another clause therein. The devisor, after giving the use of part of his estate to his wife, for her life, proceeds as follows : " Item, I give and be- queath unto my son William W. Bull, two thirds of all and every property, I may be possessed of, at the time of my decease, after my just debts are paid; and to my daughter Mary Otis Bull, the other third, in like man- ner. Lastly, I appoint my brothers James Bull, and Thomas Bull, executors of this, my last will, and tes- tament, with full fiower, to sell, and disfiose of any, and every part, of the estate belonging to me, in such way, and manner, as they may judge most beneficial for the legatees, except the house, See. bequeathed to my wife SUPREME COURT OF ERRORS. 385 Abigail, during her life, and at her decease, then the June, 1809. diisfivital of said house , &c. to be disposed of at the exe- u tLI . cutors* discretion." BULL. By the latter clause, the defendant claimed the right of possession, in the estate of Caleb, until the estate was settled. But the court directed the jury, that the plain- tiff had the title, and the right of possession. And the jury accordingly found a verdict for the plaintiff. A new trial was moved for, on account of this direc- tion to the jury; and the question reserved for the opinion of the nine judges. D wight, in support of the motion. The only question arises as to the nature of the pow- ers given to the executors of Caleb Bull, by this will. In England, there has be'en a diversity of opinions, and nice distinctions, as to what is a mere power, and what a power coupled with an interest. Pow. on De-v. 303. Co. Litt. 113. note 2. Pigot v. Garni.xh, Cro. KHz. 67"8. 734. ffowell v. Barn*, Cro. Car. 382. Wall v. Thur- bane, \ Vern. 355. 414. Wartham v. Brown, 2 Vtrn. 153 Pow on Dev. 290. Licfe v. Saliingxtone, 1 M f >d 189. 8 Vin. Abr. 235. - Tomlinnon v. Dighton, 1 Sal*. 239. Daniel v. U/iley, Latch. 9. 39. 134. But it will not be contended, that this devise gives to the executors an interest, but merely an authority. And the inquiry is, as to the extent of that authority. This must depend upon the inu-nt of the testator. He having provided for the payment of his debts, und tor his wife, and apportioned his estate between his children, appoints his brothers executors, with full power to sell, and din/lone of any, or every part of his estate, as thnj may think moat beneficial t for the legatees. It is not an authority to sell Vol. Ill 3D 386 CASES DETERMINED IN THE June, 1809. to pay debts, nor to pay legacies charged upon the BULL estate. His intent, then, must have been, to protect the v - ' property from the devisees, for the devisees; to guard it DULL* against those for whose use it was designed. As it re- spects the executors, it is as extensive as a power can be; it applies to every kind of property; it is confined to no time ; and is bounded only by their discretion. That the executors might sell, under this power, must be conceded. If they can sell all the estate, cannot they dispose of a part ? Or, in other words, if they can sell, may they not lease ? And if they may lease to others, may they not occupy themselves ? But the testator, as if fearful that the word sell would not express all he meant, not only gives them the power to sell, but " t dispose of it in any way" &C. He then must have in- tended to give them some other power than a power to sell, they being liable, however, to account for the avails. In short, having fixed the proportions, he authorizes his executors to distribute to the devisees, in such way, and manner, as they shall judge most beneficial. There is no limitation of this power; to effect the intent of the testator it must continue at least until the settlement of the administration account. If such was the intent of the testator, it ought to be regarded. Civil v. Rich, \ Ch. Cos. 309. He had a right t dispose of his own. He might have disinherit- ed his children; and surely, he may subject them to the discretion of those in whom he confided. If the execu- tors abuse this confidence, a court of chancery will in- terfere. Thomas v. Thomas,^ Vcrn. 513. 2 Com. Dig. 699. But unless abused, they must retain all the authori- ty given them by the testator. Ingersoll, contra. By the will of Caleb Bully the estate vested in his SUPREME COURT OF ERRORS. 387 children. The executors have no interest, but merely an June, 1809. authority to sell. Poio. on Dev. 293. 300. Foone v. Blount, BITLL COTO/Z. 464. This is now admitted on the part of the v - BUM.. defendant; but it is said, their authority is an authority not only to sell, but to dispose of the estate in any way they shall judge best. If this were admitted, it could have no effect in this case; because the executors have not exercised the power of selling, or disposing of it. They have neither sold, nor leased it; they have neither conveyed, nor contracted to convey it. It remains, then, a fee-simple estate in these devisees and their heirs. What then prevents them from gain- ing the possession of it ? Not a particular interest in another ; for it is agreed, the executors have no interest themselves, and have conveyed none. A power to sell, or lease, cannot give the right of possession against the owner. During the life of him who created an attorney with power to sell, such attorney never would claim that he could keep the owner out of possession. And it can make no difference, that this power is not to operate until the death of him who gives it. When the power has been exercised, a purchaser under it may have the right of possession; but the attorney has but a power, and that can give no more right to possession than to property. The interest of the devisees might have been devestcd by the exercise of the power given to the executors ; but until thus devestcd, the title is complete in them. But if the executors had any rights, by virtue of this will, the rights do not exist at this time. They had a power, which they might have exercised ; but it could not have been designed to continue for ever. If they sold, they must sell in a reasonable time, but could not sell at 388 CASES DETERMINED IN THE BULL. June, 1800. any future time. To make the delay in settling the ad- ministration account a ground for retaining the power, is to reward negligence, and give a premium for delay. The widow of Caleb Bull and one of the devisees are already dead ; and if the power is yet to survive, there can be no limit ition. A,nd the executors (although it is expressly admitted that they have no interest) must have all the privileges of owners. BY THE COURT. The will of Caleb Bull gave to James Bull and Thomas Bui/, a joint power to sell and dispose of the estate of the testator, which was but a. naked power, without being coupled with an interest. Even the povver to sell could not be exercised by one of the executors, separately; and no power was given to them jointly, or separately, to enter upon, and possess, any part of the real estate; but the devisee having the fee, his heir at law has right to the possession. New trial not to be granted. CHARLES SEYMOUR against WILLIAM C. BULL. A ]>ower to executors to sell ii'nl dis- pose -)f lands devised \<> the children of the testator, is a power to sell only, and cea- ses upon the death of one of the devi- sees. WRIT of error. This was an action of ejectment, brought by William C. Bull against Charles Seymour. The defendant, in his plea, disclosed the same facts as were relied upon by the defendant in the last case, and also, that .Abigail Bull, the widow of Caleb, died in the year 1799; that the property claimed, was the house given to her, for her life; and that after her death, the exe- SUPREME COURT OF ERRORS. 389 cutors, judging it would be most beneficial to the lega- June, 1809. tees, leased the premises to the defendant. The su- SEYMOUR perior court adjudged the plea to be insufficient. BULL The case was submitted without argument, by Dwight, for the plaintiff in error, and IniferaoM, for the defendant. BY THE COURT. The question arises on these plead- ings, whether the executors had power, after the death of -Ibigail Bull, the widow of the testator, to lease the demanded premises by the will. The executors claim this power, by the clause in the will, authorizing them u to sell and dispose of any and every part of the estate in such way, and manner, as they may think most beneBcial for the legatees." The words " sell and diafiose of" are used in this will as synonymous terms; and this is a naked power to sell, not coupled with any interest. And until a sale should be made, the devisees had a right to the possession of the estate, (after the decease of the widow,) the fee be- ing in them. This power is to be strictly pursued; and it gives no right to the executors to enter upon the land, or to lease it. The plaintiff is heir at law to William W. Bull* the devisee in the will, who was dead at the time the action was commenced. The power of the executors to sell in surh way, and manner, as they should think most bene- ficial to the legatees, was personal, and ceased at the time of the decease of the devisee under whom the plaintiff claims. Judgment affirmed 390 CASES DETERMINED IN THE June, ISO?. HEZEKIAH HUNTINGTON against ELIJAH RUMNILL. An attorney WRIT of error, may be liable for a debt lost gence" but 6 he Elijah Rumnill brought an action of account to the lf-ble1br"the count y cour t> in August, 1807, against Hezekiah Hunt- lossuftheevi- ington, declaring that the defendant, being a practising denee of that . < i debt. And in attorney, in February, 1799, received of the plaintiff two a Tinst r U him notes to c Uect and account for; one against one Leister, for such loss, payable to George Merrills, and endorsed by George thatthe plainl Toddj the other, dated 30th March, 1787, for 8/. 10*. IfremedTfbr with interest, made payable by Jasefih Pease to David the recovery Todd, and on the 23d January, 1799, endorsed by David of his debt, which he has Todd to the plaintiff; and that the defendant had neglect- successfully , pursued. ed to account. The record of such reco- The defendant admitting himself bailiff, arid receiver, very will be . proper evid- auditors were appointed, who awarded against the de- ence of this f enc iant for the Pease note. Upon a remonstrance, the fact, although " the attorney court refused to accept their award; and appointed other was no paity au jj torSj w h o a ) so awar( | e d for the plaintiff, for the amount of the Pease note, and interest. This award was also set aside by the court, and new auditors appointed, who awarded for the defendant. Rumnill then brought a writ of error to the superior court, on the ground that the county court ought to have accepted the two former awards. The superior court reversed the decision of the county court, because they refused to accept the award of July, 1808, which was the second award. And to reverse that decision of the superior court this writ of error is brought. From the facts proved before the court, upon a remon- strance to that report, it appeared, that the auditors found that Rumnill received this note of George Todd in part pay- 4 SUPREME COURT OF ERRORS. 391 ment of a horse which he sold George Todd: that Hun- j un e, 1809. tington, in March, 1799, commenced a suit against the HcNrTNC- executors of Pease : that David Todd. the nominal plain- TON V. tiff, interfered; compelled Huntington, by an order of RUMNILL court, to disappear; and submitted the suit to arbitrators: that Hunting t on, in March* 1800, at the request of George Todd, attorney to David Todd, without the direction of Rumnill, but relying upon the assurances of George Todd that he would settle with Rumnill, delivered George Todd the Pease note to exhibit before the arbitrators: that Huntington, however, first took a copy of the note and endorsement; and in May, 1800, at the request of Rumnill, commenced a suit against David Todd upon his endorsement, which suit failed for want of the ori- ginal note. It also appeared before the court, that the defendant before the auditors offered \,o prove, that in 1801, at the request of Rumnill, he commenced a suit in favour of Rumnill against George Todd on the original contract of sale of the horse, on the ground that the Pease note was of no value, and recovered judgment before the superior court for 72 dollars and 42 cents damages, and 94 dollars and 14 cents costs, the court making the Pease noteand interest the rule of damages : that Rumnill applied for, and received, this execution of Huntington against George Todd; and that Todd is able to pay it. A copy of the process and judgment and execution against George Todd was offered in evidence, and parol evi- dence of the other fac^s. The auditors refused to admit the evidence in support of these facts. N. Terry and Huntington, for the plaintifl' in error, contended, that the facts found by the auditors would not admit of a report against the defendant; and that they ought to have hoard the proof offered. 392 CASES DETERMINED IN THE JuneM809. j From the facts found, the award should have been HUNTING- in favour of the defendant. TO -NT V. ft is agreed, Huntington was not liable for the Merrills note. The Pease note he put in suit immediately; and Todd, the plaintiff, interfered, and prevented the prose- cution of the suit. When Huntington had done this, he had fulfilled the duty required by the bailment, and was no further liable. But it is said, he delivered the note to George Todd, and is therefore liable. But a bailee is not to be made responsible unless he is guilty of misconduct, to the injury of the bailor. Co. Litt. 172. Hunt ing ton, by giving the note to a lawyer at the bar, cannot be considered as acting corruptly, or guilty of gross negligence. Besides, Rumnill received no injury by it, for his claim against David Todd, under the circumstances of this case, could not be defeated for want of the original endorsement. But if Huntington were liable at all for delivering up this note, he could be liable only in a special action, in which the plaintiff must aver, as the ground of his claim, the loss of the evidence of his debt, and that he has sustained damage thereby. 2. But the evidence was relevant, and ought to have been admitted. The evidence offered went to show that Rumnill, having an election to pursue the endorser on his endorsement, or to treat the note, &c. as of no value, had elected the latter mode, and pursued it with suc- cess ; and, consequently, had deprived himself of any other remedy. Indeed, the superior court, in the suit of Rumnill against George Todd, went upon the ground, that the sale of the horse by Rumnill to Todd, M and the sale of the note by Todd to Rumnill, formed one trans- action ; and that Rumnill put the note in the hands of SUPREME COURT OF ERRORS. 393 Hunting'on, to procure payment for his horse; it was j unc> , fi()g rei -.-a.it, therefore, to show, that this object hud been at- tained in another manner. And the moment judgment Avas lendered against George Todd, and the execution Was satisfied, Rumnill would have been under an obliga- tion to deliver over this note (if in his hands) to George Todd. And consequently, if Rumnill had the note in his hands, he could net now maintain an action against David Todd upon his endorsement. Nor do these facts militate against any facts stated in the declaration. That Gcurge Todd delivered to the plaintiff, in payment for a hoise, a note endorsed by David 7'udd, surely does not negate the fact, that this note was endorsed by David Todd to the plaintiff. But it is said, these facts ought to have been pleaded. Three things only can be pleaded to an action of ac- count; never bailiff and receiver; fully accounted; and a release. Godfrey v. Sounders, 3 H'ils. 113. These tacts could not then have been pleaded to the action. And we have no practice of pleading before auditors, as they have in England. Whatever is pleaded there before auditors, is given in evidence here. Our defence simply was, that the defendant had done his duty, and that Rumnill, his employer, approved of his proceedings. And yet this man,' having, by the aid of the defendant, recovered f George Todd-, the value of his horse, and the inte- rest, would now recover of Huntington the amount of the note given for the horse, when the very ground of his recovery against George Todd was, that this note was of no value. Again: The auditors ought to im d in evi- dence the record. T,ie o';j other parties is unfounded. A :xTo/d ib . i.- of tin- fuctt j , . except as Kut thr VOL. 111. HUNTING- 10 :< HVMNILL. 394 CASES DETERMINED IN THE Ju ic, 1S09. existence of a judgment may be shown against those who were no parties to it, as in suits brought by sheriffs, &c. Here, the object was, not to establish the verity of ^e facts upon which the judgment was founded, but to show the existence of the judgment in support of a col- lateral fact. The auditors should have heard the evi- dence offered, in mitigation rjf damages, if for no other purpose; for surely, it was some mitigation of the de- fendant's offVrice in losing a note of 28 dollars, that he had recovered a judgment to the amount of 166 dollars* by the direction, and for the benefit of the plaintiff. Bradley, for the defendant in error. I. The defendant Huntingdon, having received this note for collection, t was bound to procure the money from the maker or endorsor, and pay it over to the plaintiff, or to show that it could not be collected, and that without any fault of his. The defence is, not that it could not have been collected, but that it cannot now be coiiected. because, indeed, the defendant himself has given ";p the evidence of debt confided to him, to the man of w! om it was to have been collected, (or his son.) He is thus defending his netflrct of duty, by showing an absolute misfeasance. He would justify himself for not collecting the money, by showing, that be himself put it (.lit of his power. He would throw a loss upon us, by alleging a breach of duty in himself. It is said, we cannot recover for this breach of duty in this action. But having shown the defendant's liabili- ty to account, it becomes his duty to account in a pro- per manner. From the fucts. therefore, found by the- auriitors, there can be no doubt of the liability of the defendant for this note. 2 Bur it is contended, that the evidence was impro- perly rejected by the auditors. SUPREME COURT OF ERRORS. 395 This evidence could form no defence for Huuiingtonf June, 1*09. and consequently was irrelevant. It formed no ju>uti- ii UN ii;o- cati-jii; because it' Rumnill had the note, he might yet recover of David Tudd upon his endorsement. A re- KUM.NJJ.L covery for this horse against George Tuid could be no bar to & suit brought against Uavid T<,dd upon his en- dorv .mcnt. And George Todd could in.di.tain no suit agan.st Rumnill for this noie, or the money collected up< n it; because he hus parted with his interest in it, and the judgment in favour of Rumnill against him can- not twcsi tiiv iiiicrest in him, especially as that judg- ment has never been satisfied. But it Gturgc Tvdd, in consequence of this judgment, could recover the note, or the money collected upon it, of Runinill, tliL-n, it \vus more important that Rumnill should have the note in his hands to answer this demand. I But the defendant cannot, upon any principle, refuse to perform his contract with the plaintiff, because it would be of no service to the plaintiff; and if Kumnilt would be estopped from withholding this note from George Todd, Huntington, a mere stranger, cannot un- dertake to assert the rights or claims of George Todd. If the evidence would have barred the plaintiff's right of action, as is contended, it should have been pleaded in bar to the action before the rourt. and could not, at that late stage of the cause, be taken advantage of. 1 Com. Dig. 119. UO. 1 JJac. Mr. 3739. 1 Vin. sibr. 157, 158. 163, 164. Besides, this evidence could not be received, hecjusc it contradicts fact* stated in the declaration: It goes to show, that the note was not in fact warranted to the plaintiff by David Todd, but by Grorgc Tudd. Nor could the evidence be admitted to lessen the damag< for if Iluntington had done his duty in the suit against George Toddy it could have no effect upon the damage* CASES DETERMINED IN THE June, 1809. for not performing his duty with respect to the note en- dorsed by David Todd. HU N TING- N TING- TO X RUMNILL. Another objection applies to the copy of the judg- ment which was offered in evidence: It was not between the same parties. Had the judgment been against Rum- nil! in that suit, he could never have used it as evi- dence against Huntington; it cannot therefore be evi- dence for Huntington. Peake's Ev. 38. But it would be manifestly unjust, that this recovery against George Todd, which it is not pretended is equivalent to a re- covery on the endorsement, should prevent a suit on the endorsement. Had the money been paid upon this judgment, a question might arise as to its effects; but that this judgment should bar an action, when in conse- quence of it the party is no nearer a satisfaction of his claim than before it was obtained, is extraordinary in- deed. If Rumnill cannot recover of Huntington for this note, George Todd cannot ; and thus Huntington makes himself, by his own act, the owner of the note, and has the right to dispose of it at his pleasure. BY THE COURT. ' \ An attorney, who receives a note, or other evidence of debt, for collection, is undoubtedly liable for the debt, if it be lost by his negligence. But the loss of the note, or other ordinary evidence of the debt, does not necessarily involve the loss of the debt itself. And in order to charge the attorney with the debt, the inquiry must be, not whether the ordinary evidence of the debt is lost by his negligence, but whether the debt itself is lost. In this case, it appears, that the debt due to Rumnill, and put into the hands of Huntington for collection, was not enly secured by the endorsement of David Todd, SUPREME COURT OF ERRORS. 397 but also, by the liability of George Todd, to pay the June, 1809. price of the article which had been sold to Rumnill, and p ~~ * I II t. 1 r a for which the note had been assigned. Any evidence, v Ki i.s- thereibre, which went to show, that the debt had been WORTH. paid by George Todd, or remained secured by him, went to show, that the debt was not lost- and was pertinent to the issue before the auditors The judgment and execution obtained by Rumnill against George Todd was evidence of this description, and ought to have been ad- mitted by the auditors. We are, therefore, of opinionj that the decision of the county court in rejecting the awani of July, 1808, for the reasons stated in the re- monstrance, was correct, ai.d ought not to have been set aside by the superior court. Judgment reversed. JAMES PHELPS and others against ABIGAIL ELLSWORTH and others. WRIT of error. Upon a bill of ffirtt '"> ure by i This was a petition in chancery brought to the superior ^j'j 1 " j^,"^ 1 "" court, by the honourable Oliver Ellsworth, de< . for ''- tinct (Icia*, stating that James Phelfis and Jamen P/icl/is, jun. being chancery \ill indebted to him, in the sum of 2,569 dollars and 49 cents, ',!j, l ,^. K .'l,',^" gave their note, payable the 1st of May, 1805, on intc- ''" ! ' ul1 ' i In- ir.ort Ra- rest, and conveyed, by deed of that date, s( ven pieces of ^ . , ic. pay land, as collateral security; and on the 4th of March, 1803, j^* m BtSi they became further indebted, in the sum of 1,000 dol- n.akc uptime tor lars, payable at the same time with the former; and as each iM-i. collateral security for the 1,000 dollars, cxivutrd a deed of four other fiirces of land, together with the same lands contained in the first mortgage : That the equitjr 398 CASES DETERMINED IN THE June, 1809. of redemption of James Phel/is, jun. had been attached; PHETps anc * t ^ lut ^ ^ ames Phelfis, the elder, had i>een by him v ' conveyed to others, who were made parties to the bill: ELLS- WORTH, that the money all remained due praying lor a foreclo- sure. None of the respondents, except Jamex Phrl/is, (then called junior,) appeared. And upon inquiry, ti.e court found the .facts slated in the petition, to be true; and fouiid due upon the two mortgage*, 4 531 dollars, and decreed, that if the respondents foiled to p^y this binn within a limited time, they should be " foreclosed of their equity of redemption. The widow and children oF the petitioner, and the ad- ministrators upon his estate, were marie parties to the writ of error. All the plaintiffs in error, except James Phelfis, were nonsuited. The error assigned was, that all the lands contained in the last deed, was made subject to the payment of the debt, secured by the first. Ingersoll and Dwight^ for the plaintiffs in error. These mortgages were made at different times, for different sums, and were entirely separate and distinct; and there should have been separate and distinct decrees relative to each of them, viz. that on the payment of 2,500 dollars, and interest, the mortgagee should release all the title he derived from the first conveyance; and on the payment of 1,000 dollars, he should release all the title he derived from the second deed. Had the mortgagor petitioned to redeem the lands comprised in the second mortgage, without the other, he ought to have been per- mitted to redeem them. There can he no more con- nection between two separate contracts, by the same SUPREME COURT OF ERRORS. 39$ person, than between two contracts by different persons. June, 1809. The lands are each charged with its own burdens; and p HE , P s the one ought not to be oneratcd with the debts of the ,, v - ' Rl.LS- Other. The object of a court of chancery, as to niort- WORTH. gages, is to place the mortgaor,*after the law day, in the same situation he was in before. Before the law day, Jaws Phrtfis might huve paid the 1,000 dollars, and interest, and the lust mortgaged lands would have been his own, unencumbered. Chancery will then permit him, upon the same terms, to effect the same thing. The most of the cases in the books, where the court compel- led u redemption of both mortgages, are cases where the security was deficient; as in Purefroy v. Purefroy, 1 Vcm. 28. But to sanction this decree, is to adopt the whole* system of tacking debts to encumbrances on real estate; for there is the same equity for a mortgagee, v that his bond or note should be paid, as that his other mortgages should be. But in this way, the law requi- ring deeds to be recorded would be of no effect; because, in cases of mortgages, the debt would not depend upon the original contract, but upon the state of accounts be- tween the parties, when the application is made. But however this may be, where the mortgagor peti- tions, the mortgagee cannot, upon his own application, enforce the redemption of both mortgages, or neither, and thus vary hK o\\ n contract. Pow. on Mori. 5 1 1 5 \1. He now asks, that the court will not permit the lands :cd, to be free from the encumbrance upon the p-yment of principal and interest. This is asking tin- court to plucc him in a better situation than he placed himvil; her .uisr he is not willing to take, what before the law Hay expired he might have been com- pelled to accept. But the language of the petition is, that ne should have the principal and interest upon each contract. 400 CASES DETERMINED IN THE June, 1809. PHELPS \ ELLS- WORTH. Gould and R, M. Sherman, for defendants in error. Natural justice requires that a mortgagor, whose estate is forfeited at law, should pay to the mortgagee all he owes him, before the latter should be compelled to give up the security he holds. And formerly chance- ry would not permit a redemption, until all moneys borrowed of the mortgagee, were paid. ' The rule now applies to cases only, where the loan is secured by mort- gage. But as to mortgages, the rule has never been relaxed, and in justice should have retained its ancient force in all cases. Had the mortgagor made application to redeem, he must have redeemed both. Margrave v. Le Hooke, 2 Vern. 207. Po/ie v. Onsloiv, 2 Vern. 286. Reaaon v. Sacheverell, 1 Vern. 41. Jones v. Smith, 2 Ves. jun. 376. Although in some of these cases, it is said, that the mortgage or one of the mortgages is deficient in value, yet in none of them is it the principle of adju- dication; in several of them, it is not even suggested. Powell indeed intimates, that the court is less liberal to the mortgagee, when the application comes from him- self, but cites no authority in support of the remark, affecting this case. The case he states, is that of a mortgage and a bond debt; in such case, he says, if mortgagor petitions, he must pay the bond debt, as well as mortgage, but if mortgagee is plaintiff, it seems (he says) that he can enforce payment of the mortgage debt only. If any such rule or difference exists, it applies only to those cases where an original equity is sought, as where an obligee prays for more than the penalty of a bond ; but not to cases like this, where the petitioner asks for no equity in hia favour, but only that the mort- gagor may exercise his equitable rights in a reasonable time. The fact that the first land was included in the second mortgage, shews, that the panics designed that the whole land should be security for each debt. SUPREME COURT OF ERRORS. 401 ELLS- WORTH. But if a decree were made upon the principles con- June, 1809. tended fur, or this decree reversed, it could be of no p HELPS possible benefit to the mortgagor; for if he should pay the money due on one mortgage, and the mortgagee should refuse to reco:ivey, unless both debts were paid, the mortgagor must then apply to a court of chancery to compel a conveyance. Upon that application, he, being plaintiff, must, according to the principles laid down from Ptwrll, first satisfy both debts, before he could gain the legal title to either of the estates. This decree then, only effects directly, what then would be done circuitously. BY THE COURT. At law, both mortgages are forfeited ; the mortgagee has a legal title to both. The only inquiry is, what is equitable between the parties. All agree, that the mortgagor, on Ins petition, cannot redeem one mortgage without the other. The reason assigned is, that as his reli f is in equity only, he shall do equity to obtain it. The principle guiding such decisions is that it is equi- tahlf he should redeem both, or neither; and surely it ca, noi vary the prineiple, and ought not to alter the rule of equity, between the p irties, that one, or the other, applies for it, unless the situation of the jm ty seeking relief, requires an extraordinary interposition of the court. This is the usual application, by the mortgagee, not seckirg an original equity, but simply, that the court will limit the time, within which the mortgagor shall exercise his equitable rights. His equitable rights are, to redeem on paying all that is due upon both mort- gages. This principle extends to all mortgages exist- ing between the same parties, whether they embrace VOL. 111. 3 F 402 CASES DETERMINED IN THE M'CALL. , June, 1809. the same land in part, as in this case, or are wholly dis- tinct, and independent. And were the court to adopt a different rule, and separate these mortgages, by their decree, and limit the time of redemption lor each, the mortgagee might refuse the money, and compel the mortgagor to seek relief. The court would then de- cree that, which we think equity requires should now be decreed. We perceive nothing erroneous in the record. Judgment affirmed. If a person, intending to ranks a family settlement of his estate, in nature of a testamentary disposition, conveys lands to his sons, by several deeds, and r.he deed to one proves defective, chancery, af- ter the dtat.li ot 'the gi-autor, will compel his heirs and wid.-iv to per- fect the title of the grantee. DEBORAH M'CALL, HOBART M'CALL. GREEN M'CALL, JV'SiAH M'CALL, JABKZ M'CALL* LEVI COE and DEBBY his wife, JOSEPH BABTOCK and MOLLY his wife, and ELIPHALET MURDOCH and ANN his wife, against ABIGAIL M'CALL. WRIT of error. This was a petition in chancery, to the superior court, brought by Abigail M'Call, against Deborah M^Call and others. The material facts stated, that were found by the court were: That drch'fi/ius M'Call, on the 22d of 8 CASES DETERMINED IN THE June, 1809. Cory v. Cory. 1 Ves. 19. was a petition, not for a, M1 l> A L Li* ment of a family dispute. The facts, which have taken place subsequent to the deed, can have no operation. There is no analogy between the cases of a fiarol agree- ment fer a -valuable consideration, executed in part, and a -voluntary agreement in writing. The cases under the statute of frauds, are all cases where there was a valua- ble consideration. Here, if Walter has made improve- ments, no injury will result to his heirs; for the contract being rescinded, an account must be taken, and they can retain the money expended in improvements. And in the settlement of the estate, the advancements to the other sons will also be considered. Of still less im- portance is it, that the heirs ha,ve quieted Roger in his possession. It can in no way affect the petitioner; they may have compromised with him; but are not thereby bound to yield to the demands now made. 2. As the decree respects the daughters. There can be no equity in favour of the petitioner as against the daughters. If this is a family settlement, and if, as it re- spects the brothers, there was a valuable consideration, the daughters were not actually, or constructively, par- ties to it. They are, then, in equal equity with the devisees of Walter ; and having the legal title, and equal equity, a court of chancery will not compel them to relin- quish it, but suffer the law to have its course. 1 Fonb. 311, 312. Miff. 215. It would be hard, indeed, if 'hav- ing received nothing from the bounty of their father, they are now to be deprived of what the law would give them. The court, indeed, have found, that the daugh- ters received portions; but this fact, if material, must appear upon the petition. The plaintiff must recover in chancery, as well as at law, secundum allegata^ et fir 9- 4 SUPREME COURT OF ERRORS. 407 . bata. At law, a special verdict cannot supply defects June, 1809. in a declaration; a bad declaration is no more aidtd by a M^^LL sp< cial verdict than by a demurrer. But if the fact be v M'CAI.L. immaterial, the court having found it, will not render it material. It can, therefore, have no effect in the case. 3. As it respects the- dowress. It nowhere appears, that any provision has been made for the widow. She ought not. therefore, to have been 'compelled to convey. In England, the rights of a dowress are much re- garded; she stands upon higher ground than a pur- chaser for a valuable conujderation. She is entitled to a discovery from a purchaser of real estate from her hus- band, who had no knowledge of the marriage. 1 Fwb. 19, 20. 151, 152. Her equity is superior to that of heirs 2 Eg. Cos. Abr. 383. A contract by her hus- band, for a valuable consideration, cannot be enforced against her. This contract could not be enforced against the creditors of Archififiu* M*Call. 3 Atk. 3H8. It cannot, therefore, be enforced against one whose rights are more carefully regarded. Although a husband in this state may by deed de- prive his wife of dower, it by no means follows that he can effect the same thing by an executory agreement) the enforcing of which depends upon the discretion of the court, regulated by circumstances. 2 Pov>. on Con. 221. It is said, that Archififiu* is a mere trustee. This is to assume, that chancery would enforce the contract against him. But were it so, there are now other parties, whose equity is as strong, and whose legal claims are preferable. Again, our statute provides, that the wife shall have 408 CASES DETERMINED IN THE June, 1809. dower in the estate of which the husband died seised. (a) M'CAI.I, A court of equity cannot decree against the provisions of a statute. Wtbb v. File h et al. 1 Root, 177. 1 Fonb- 17. 21, 22. 4 Vin.Abr. 396. 2 Eg. Cos. Mr. 383. The hus- band being seised of this estate, at the time of his death, a court of chancery cannot say his widow shall not have dower in it. Ingeraoll, for the defendant in error. I. The facts proved lay a foundation for a decree against some of the respondents. If, as is contended, the agreement on the part of Ar- shififius M^Call was voluntary, it would not have been competent for him, in his life-time, after his son, in pursuance of it, had taken possession, and made improve- ments, to have refused to fulfil the agreement. A court of chancery would not permit him thus to ensnare his son> to induce him to expend his time, and money, upon the faun of a defective conveyance; but would have protected the son in the possession thus acquired. No case oc- curs directly in point; but it is analogous to the cases of part performance, under parol contracts to convey lands. Chancery, in such cases, will decree a conveyance, not- withstanding the statute of frauds; and one ground is the fraud of the party contracting to convey. He shall not be permitted to take the benefit of the labours of another, who trusts to his engagements. And if this is to be considered a voluntary convey- ance, it would be as effectual, against all but creditors, as a conveyance for a valuable consideration. But this is not a voluntary conveyance. It is a. family provision; \ (a) Stat. Ctan. tit. 51. e. 1. s. 1. SUPREME COURT OF ERRORS. 409 the consideration is blood; and the father did no more June, i than by the ties of natural justice he was bound to do. The sons, then, who have received estates from their -.* Al A-I A I L. father, in consequence of this family arrangement, are not in equal equity with the representatives of Walter. He was as much entitled to his farm, as they were to theirs. They were all SONS, and each entitled in justice to the portion designed him. Unless, therefore, the other sons give up their estates, they never can claim in a court of equity that Walter shall give up his. By the deed to Roger, the heirs have recognised this family ar- rangement; and therefore ought not to be permitted to dispute it. 2. As it respects the daughters. It is found in the decree, that the daughters have re- ceived portions of the estate. It is said, this can have no effect, because it is not stated in the petition. But it is now too late to say this. It could have been taken advantage of only by objecting to the proof of that fact As it has been proved, and found, it must be considered as well found. But aside from this, the daughters, heirs of their father, can be in no better situation than he would have been in; and must convey, provided he would have been compelled to. Besides, this must be considered as a conveyance for a valuable consideration; a provision made for a family; " extating" his sons, in the language of our statute. Such conveyances are highly favoured in a court of chancery, and have been peculiarly pro- tected. Cory v. Cory, 1 Yen. 19. Goring v. AW*, 3 Atk. 186. Stafilrtun v. Sta/ilelon, 1 Atk. 2 8. 3. As it respects the dowrcss. Had this deed been, what the parties meant, and sup- Vot.. II! 30 410 CASES DETERMINED IN THE June, 1809. posed, it was, effectual to convey this estate to Waller. .M'CALL V. M'CALL. the widow could have had no claim. Then as chancery considers what is agreed to be done as actually done, from the time of the agreement, she can be considered in chancery, as having no right from the date of the de- fective instrument. The estate was, then, equitably, Walter's; and the husband cannot here be considered as having died seised. The land, therefore, did not descend to his heirs; and for the same reason, his widow has no right to dower. That the rights of a dowress are to be regarded is not denied; but the question now is, what are her rights. That a court of equity will not relieve against the express provision of a statute is not contended; but the inquiry here is, does the statute apply to cases of mere trusts? This was not an executory agreement by Ar- chijifius M'-Call; but an agreement executed, though imperfectly executed. He had no more equitable title, than if the conveyance had been perfect. And she who claims only by virtue of his title, can have no equity, which he did not possess. BY THE COURT. The deed from Archi/ijius accompanied with tb,e actual delivery of possession, under the circumstances, and in the manner, in which that deed was made, and delivered, cannot be considered, as an executory contract; but may be considered as a voluntary, though defective conveyance, winch passed the whole equitable interest at the time, out of Archiftfius) and vested it in Waiter M 1 - Call; and though voluntary, being made with a view to a family settlement, and in the nature of a testamentary disposition of the estate, it is such a convevance, as a court of chancery may validate, and when validated, and the defect in the con- veyance cured, it will have relation to the time of the SUPREME COURT OF ERRORS. 4H delivery of the deed, and not only bar the widow of her June, 1809. right of dower, but destroy all claims of the heirs of STERLIHC Archififnta to the estate in question. A * Judgment affirmed. THADDEUS STERLING against AARON ADAMS and HAN- NAH, his wife. WRIT of error. If ; n an action of dander, the defendant ad- This was an action brought by Sterling, against Adams mits the . e . . speaking of and his wite, on the statute ior preventing and punish- thewords.but ing vexatious law S uits.() SSPfi they were true, lie does The declaration alleged, that said Hannah, whilst sole, !lot th-ri-by admit probft- and before her intermarriage with said Aaron, to wit, ble cause, so on the 23d of July, 1801, wittingly and willingly, with ||- n \ vr f showing; the wunt of it in an action for a vexatious suit. A person may be liable for prosecuting, after he is of full age, a suit commenced by him maliciously, unit % i:l.< ui piulmMr cunsc, while an infant. In an action for a vexatious suit, the plaintiff having; stated, that in the original suit, he recover" !, that lie ions most unjust/!/ imprinoiied on niid rttit , for the tpace of htent /, ami in defending the tame expended larye nm* 9] mo- ne,-ii-liit^ on thr trial; urs; and, in defending the same, expended large sums of money, to wit, the sum of two hundred dollars in employing coun- sel to defend; also the sum of two hundred dollars in paying witnesses, and maintaining them when attending on the trial; also the sum of one hundred dollars in making various journeys to procure testimony, and in attending on the trial, to the damage of the plaintiff," &c. To this declaration there was a demurrer. The superior court adjudged the declaration insuffi- cient. The plaintiff brought a writ of error to this court, at the term in Jun*, 1808; when the cause was argued by Gould, for the plaintiff, and by Duggett and Hutch, for the defendants. The court being divided in opinion, continued it to advise, and ordered a further argument nt this term. Sherwood and Hatch, in support of the judgment be- low. The action in this case, is founded upon the statute for preventing and punishing vexatious lawsuits. (a) But that statute creates or defines no new injury. Of course, the questions which arise upon this record are to be determined upon common law piincip! () Slat. Cnr. n< 414 CASES DETERMINED IN THE June, 1809. To constitute a civil suit vexatious, in a legal sense, STER~LI\G three requisites are indispensable, viz. malice, want of probable cause, and damages either actually fallen, or else inevitable. Esfi. Dig. 527.529. 6 Mod. 25. The inquiry now is, whether the plaintiff shows the suit, of which he complains, to have been thus vexatious. 1. For the defendants, it is contended, that the declara- tion contains no sufficient allegation of damages. In the first place, no precise and certain rule is given, by which damages are to be assessed. The declaration admits, that costs were recovered in the original suitj but does not show, to what sum they amounted. A claim is noW made for the extra costs in that suit; it ought, therefore, to appear, that the actual costs exceeded the taxed costs, and by how much; otherwise, it will be in- tended, that the taxed bill was a full satisfaction ; or, at any rate, as the one bears no stated proportion to the other, it cannot be ascertained how great a part remains unsatisfied. To the claim on account of the imprisonment alleged? a distinct answer will be given. In the second place, no damages whatever are set forth, for which, under the circumstances of this case, a recovery can be had. The plaintiff avers, first, that he has been damnified, by imprisonment, and, secondly, that he has suffered expense. As to the imprisonment: This being an action against husband and wife, for a vexatious suit instituted and prosecuted by the wife, dum sola; the present inquiry must be, whether she was liable at the time of the inter- marriage. From the plaintiff's own showing, it appears that, at the commencement of the original suit, the wife 5 SUPREME COURT OF ERRORS. 415 was a minor; the suit was commenced by guardian; j une , 1509. the writ bore date the 23d of July, 1801, and the plain- ST ^7" IX( , tiff w*s arrested on the same day. It further appears, that the wife came of full age on or about the first of November, 1801 ; so that the arrest and imprisonment took place during her infancy. Upon these facts, the general question arises, whether an infant is liable to an action for a vexatious civil suit ? For, if not liable generally, in this action, it cannot be claimed, that the wife could have been subjected, for any vexation or damage sus- tained, prior to her completing full age. Here we are told, that an infant may be liable in this action; because, as it is said, he has it in his power to commit the injury. This is denied. We are not now considering the case of an action for false imprisonment; for which an infant is unquestionably liable, as for all torts, which are vi et armis. But an infant is not capable of commencing, or prosecuting a suit. If plaintiff, he must appear by guardian or firochein amy; if defendant, by guardian; but, in no case, can he appear by attorney; for the appearance of an infant's attorney is held to be without warrant. In England, the guardian, by whom he appears, is assigned either by the court, or by writ out of chancery. Both here and in England, the guardian has his warrant from the court, and not from the infant. 3 Mac. Abr. 148, 149. and authorities there cited. An infant being thus inrapabjc of prosecuting a suit, is it not a contradiction, in terms, t<> s.iy, that he may ' utc vexatiously ? Besides, the guardian, as we -.een, acts Independently of the infant, deriving his i s from the appointment of the court. Can the infant be subjected f'>i M is done in pursuance of such appointment, or for an abuse of the powers \vliich it cont< is ? The- inf.im could neither cause, nor prevent, nor in any respect control the prosecution. How then 416 CASES DETERMINED IN THE June, 1809. can malice be imputed to him? Indeed, he is not sui SrETZiNG J uris > tne I aw presumes him wanting in discretion. Shall v - he, then, be hohlen to juds;e of probable cause ? No Al>AMS. . ,- i precedent of an infant s liability in this action can be found. Indeed, it does not appear, that it was ever at- tempted to subject an infant for this injury. As to the expense: A claim is here made to recover for those itt-msof expense, which, by law, are taxable in a bill of cost in favour of the prevailing party. In an action for a malicious criminal prosecution, ex- pense alone is a sufficient ground of damage; and the reason undoubtedly is, that no costs are recovered by the party prosecuted. .E.s/z. Dig. 528. Not so, however, in an action for a vexatious civil suit. In such case, if the action be instituted before a court of competent jurisdiction, be prosecuted in the ordinary manner, and be not attended by a malicious arrest, and holdirg to bail, there is not any ground of damage which the law recognises. At any rate, it is claimed, that those items of expense which are ordinarily taxed in bills of cost, cannot be gone for, though the actual cost do in fact surmount the taxed cost. The forms of de- claring, in this action, seem fully to warrant this con- clusion. It is necessary that damages be specially alleged. Sa-vil v. Roberts, \ Ld. Rai/m. 379, 380. S. C. 1 Salk. 13. Why is this required? Expenses are always incurred in defending a civil suit; and, so far from being a special, they are an ordinary grievance. Indeed, why is it not actionable simply to bring a ground- less and malicous civil suit ? It is because the party prosecuting is amerceable pro fatso clamore^ and is liable to cost. The judgment ascertains and remunerates the claim of the defendant. Thus, the forms of the law ;u tins, as in other cases, serve to show what the law is. SUPREME COURT OF ERRORS. 417 Again, no case can be found, in which a recovery has j llnc> jgog. been had, for those items of expense which are the ST ^ subjects of allowance in bills of cost. All the instances, v in which it is laid down by Eafiinasse^ and other ele- mentary writers, that this action lies, are cases, in which either no costs could be taxed; or where no costs could be taxed against the party guilty of the vexation or where the ground of damage was some grievance, which is not the subject of allowance in the taxation of costs. Es/i. Dig. 525, 526, 527. Dub. edit. First, where no costs could have been taxed This hap- pens in all cases, where, as in At wood v. Monger \ Style, 378. it is apparent from the record, that the court has not cognisance of the cause ; or where, though the court have cognisance of the subject matter, its jurisdiction extends not to allow costs, as in Hocking v. Mattht ;, 1 Vent. 86. which was an action for suing the plaintiff in the spiritual court ; or where the vexation is done under colour of final process, as in Waterer v. Freeman, Hob. 260. 266. where the defendant had sued a second fi. Ja. and sold the plaintiff's goods, though he had before taken goods under a former^, fa. Secondly, where no costs could have been taxed against the party guilty of the vexation. Such was the case of Thurston v. Eunncs, March, 47. where a strunger, without the privity of the person to whom a sum of money was due, sued out a writ, and arrested the debtor for it. Thirdly, where the damages arc of such a nature as could not have been the subject of allowance in the bill of cost. This is the case in all actions for mali- ciously holding to bail. Under .one or other of these heads it is believed, may be classed all the castes of VOL. in. .ill 418 CASES DETERMINED IN THE t June, 1809. actions for vexatious civil suits, to be found in the books ' ADAMS. Further, the elementary writers all agree in assigning as the reason, why it is not generally actionable to bring an unfounded suit, that costs are recoverable. Esfi. Dig. 525. Gilb. L. Ev. 621. 624. In this, many judges of the highest reputation have concurred, and expressly made it the foundation of their judgments, as may be seen on a reference to the cases already cited. The instances in which this action lies, are treated as mere exceptions to the rule ; because, in those instances, the reason of the rule ceases. Indeed, in one case, that of Rogers v. Illscombe, [MS. cited Esfi. Dig. 535, 536.] this point seems to have been directly decided in our favour. An action was there brought for a malicious holding to bail. The plaintiff offered, as evidence of part of her damages, the costs she had been put to, in defending the former action; te which it was objected, that those costs had been taxed upon that action. On the other hand, it was urged, that as the extra costs always exceeded the taxed costs, they might go for these; but Justice Buller refused to re- ceive the evidence. There was, indeed, another distinct ground of objection; but we are informed, that " the judge rejected the evidence apparently on both grounds." 2. The plaintiff's declaration shows, that there was a probable cause for the original suit. It admits the slanderous words to have been spokfn, but alleges them to have been true; and it avers, that the first action was groundless only for the reason, that the defendant in that action, had a justification. What shall be considered as probable cause, though a question of law, seems not to be very precisely defined. SUPREME COURT OF ERRORS. 419 Our inquiries on tRis point must be principally aided June, 1 809. by detached cases and general rules. STEULIN* V- ABAMS. In the ancient proceedings in conspiracy, it is said, reasonable suspicion was probable cause. Per Cur. in Sutton v. Johnstone, I Term Refi. 507.- In one case [6 Mod. 25.] it is laid down, that the prosecution must <>e u without any colour of cause>" to lay the foundation of an action. In Reynolds v. Kennedy, \ Wils. 232. it was held, that an erroneous sentence of condemnation by the sub-com- missioners of excise, which sentence was alleged to have been " most justly reversed" by the commission- ers of appeal, nevertheless showed a foundation for the defendant's prosecution. In Smith v. McDonald, 3 Es/i. Refi. 7. the defendant in the original prosecution was acquitted, without call- ing a witness. He thereupon brought his action against the prosecutor; in which, however, Lord Kenyan di- rected a nonsuit, remarking, " that if the evidence offered to the jury, at the trial of the indictment, was sufficient to cause them to fiausc, he should hold it a probable cause." From these and other authorities, it is to be collected, that a very slight matter amounts to probable cause, and that courts hold a severe hand upon this sort of actions. Whether in slander, if the speaking of the words be admitted, and the defendant justify on the ground that they were true, the action shall be held to be with- out probable foundation, is now the question. It is readily conceded, that this point has never arisen, or been determined upon this precise state of facts; but 420 CASES DETERMINED IN THE June, 1809. in analogous cases, incases decisive*of the principal one, STE^TING ' l * s believed to De we ^' settled. From all the adjudica- tions on the subject, this rule or principle seems plainly deducible, that where the defence in the first suit or pro- secution is merely some collateral matter set up by way of avoidance, it implies or admits probable cause. In the case of Waterhouse v. Baivde, Cro. Jac. 133. it was fully recognised, or rather l&id down almost in totidem -verbis. The court there held, that it was not actionable to sue in the spiritual court for any matter, which was properly demandable there, though the plain- tiff had no cause of action; but if it appear on the face of the libel, that such matter was not properly suable there, and that the court hath no jurisdiction, then " action on the case lieth." " But," the court say, " if the suit be there for a thing demandtible and recoverable there, by any thing, which appears by the libel; and by the de- fendant's filca, or by any collateral matter^ he is barrablc there, no action on the case lieth." . The determination in the case of Fish v. Scott is still more directly applicable to the point in debate. There the first prosecution was for an assault and battery, and the defence, that the assault was committed by the de- fendant * AD A MS* were opposite decisions had in this case before the two different courts, where it was tried ir\ the first in- stances; yet, upon the point on which it finally turned, there was no diversity of opinion among the judges. The case was as follows: An action was brought for a malicious prosecution before a court-martial, for an alleged disobedience of orders. The declaration set forth the proceedings and sentence of the court-mar- tial; from which it appeared, that the court found the fact of disobedient?, but also found, that the disobedience was justified. The defendant in the original prosecu- tion was acquitted therefore solely upon the ground of his justification; and thereupon the question arose in this action, whether, as the justification was the sole ground of acquittal, the declaration did not admit a pro- bable cause ? The court, upon a writ of error in the exchequer chamber, held that it did, and therefore ad- judged the declaration insufficient. This judgment was afterwards confirmed in the house of lords. An attempt is here made to distinguish this case from the one at bar. In Sutton v. Johnstone it is said, that the prosecutor could not have been taken to know the facts which constituted the justification, and this is inferred from certain loose expressions, which fell from the bench. To this it may be answered, that the science of the defendant as to these facts was expressly charged in every one of the four counts in the declaration. [I Term Reft. 494, 495. 500, 501.] But further, those averments, however neccsary or proper, had not, and could not have had, any pc 422 CASES DETERMINED IN THE .Tune, 1809. connection with the question upon which, that case turn- s . r ~~ NG eel The question was, does this declaration show a v - want of probable cause ? Science is properly averred in ABAMS. . . ' such a case only to show malice; but it was in that very case, that Lord Mansfield and Lord Louglibo- rough remarked, that u from the most express malice, the "Want of probable cause cannot be implied." [1 Term Refi. 545.] Had the averment of malice been omitted, such omission would, indeed, have furnished a distinct topic of objection to the declaration; but, whether made or omitted, the question as to probable cause would still present itself in the same shape. The very conclusion, therefore, against which their lordships seemed most solicitous to guard; is now attempted to be supported by their authority. It should here be observed, that, in each of the two cases last cited, the plaintiff had far more colour of claim, and the application of the rule, by which they were decided, was more apparently technical and arbitrary than in the present. In Fish v. 6'ro, the battery was supposed to have been committed in self-defence; in Sutton v. Johnstone, the disobedience was justified by a physical necessity. In neither case, was there in fact any criminality; though in each it was held there was probable cause of prosecution. No reference is here had to the second point, on which the judge expressed his opinion in the case of Fish v. Scott. There was said, indeed, in that case to be two distinct assaults ; one of which only was committed in self-defence; but the judge expresses a clear opinion, that each constituted a proba- ble cause. In the case before the court, the defence in the original suit was such as admitted guilt as well in the eye of the law, as of morality; for to utter slanderous words, with no other excuse or justification than that they can be proved to be true was never reckoned in- nocent. The law allows such a justification to avail as a 5 SUPREME COURT OF ERRORS. 423 defence, " in compassion," as it is truly said, " to men's June, 1809. infirmities." [4 Bac. Abr. 480.] But never was it fore- STERLING seen, that these infirmities would be alleged as merito- . v> rious, or made the foundation of a claim. The rule, here insisted on, is further supported by the authority of Chief Justice Parker. In Jones v. Givins, his lordship advances it, as an undoubted propo- sition, that " the determination" (i. e. the determination of the original prosecution) " must be such as does not ad- mit a reasonable cause for the prosecution ; as if a pardon be pleaded, which admits in some sort guilt, however is quitting the vindication of innocence, or justification, which admits the fact, and consequently reasonable cause of complaint." Gilb. Cases in Law and Equity, 215. The defence in the suit now claimed to have been vexatious, falls within both the exceptions here stated. In the first place, it " admits in some sort guilt ;" and in the second, it is a mere matter of " justi- fication, which admits the fact, and consequently reason- able cause of complaint." But it is said here, that the justification in this case is substantially a denial of the cause of action, and no more admits a probable cause than the general issue; for that, to constitute slander, the words spoken must be false. It is not easy to conceive how this justification differs from any other; every sufficient plea of matter of justifi- cation ex vi termini, effectually denies or repels the liability of the defendant. This proposition, therefore, applied as it is in the argument. levels, at one blow, all the authorities cited for the defendant; authorities, which have never once been denied or doubted in the books. In Smton v. Johnttone, the justification established, that the disobedience was not wilful, and therefore notcriiuiii.il. In prosecutions for assaults, committed in self-defence, 424 CASES DETERMINED IN THE June, 1809. as in Fish v. Scott; or under authority, as in the com- STEnTiNG mon cases of sheriffs and their officers; the justification,. v. in the same sense, denies the cause of prosecution. So, too, a plea of pardon effectually destroys any just liability to prosecution, or punishment. But is this court now prepared to overrule the well settled doctrine in all these cases ? It is not surely intended, by this objection, to say, that the truth of words charged could, by the common law, be given in evidence under the general issue; or that a special plea, setting up a justification on that ground, would amount to the general issue. The rule on this point is too familiar to be repeated. (-*/*. Dig. 517.) Again, it is said, that it would have been competent, under this declaration, to have proved, by the confes- sions of the plaintiff, in the action of slander, that her suit was instituted and prosecuted, for the sole purpose, and with the single intent to vex. This is admitted; but what follows ? Simply, that the action was prosecuted with malice ; not that it was without probable cause. Similar confessions might be proved in very many cases, where the cause of action is undisputed. That such proof would have been admissible, therefore, goes mere- ly to show, that malice is sufficiently stated; but the ob- jection to this declaration is not for the want of an aver- ment of malice. 3. But we contend further, that even the justification in the action of slander is not sufficiently set forth in this declaration. For aught that appears, the plaintiff in that action might have prevailed, had he gone to trial, on the issue closed. The words charged are admitted to have been spoken ; and it is not alleged, in any tra- versable form, that those words could have been proved to be true, or that they were true in fact. It is merely SUPREME COURT OF ERRORS. 425 averred, that the several charges were known, by the June, 1809. plaintiff in that action, " and to the public in general, to STERLING be true, and that they imported no defamation," &c. From this, it cannot be inferred, that there was one competent witness, who possessed a knowledge of the truth of those charges; much less, that the then defend- ant could have availed himself of the testimony of such witness on the trial of that action. In whatever light such an allegation might be viewed, after verdict, it is believed to be ill on demurrer. It should here be remarked, that actions of this sort are not favoured. To bring a civil suit is " a claim of right," and there would be much danger in restricting it within too narrow limits. Cases of extreme hardship may undoubtedly be imagined ; oppression, under colour of law, may, in some instances, be practised with impu- nity. Where there is even an undoubted right of action, it may sometimes be made to serve the purposes of vexation. But courts, in settling the limits of this action, have been obliged to balance between opposite evils ; between the evils resulting from a too loose and a too restricted definition of the injury which it is in- tended to redress. It is not now the subject of inquiry, whether the rules already established are the most per- fect that can be devised or imagined; but if that inquiry could properly be instituted here, it would not be difficult to prove, that they arc founded in the highest wisdom. Gould and P. M. Sherman, contra. It is admitted, that a person must be guilty of a vci) gross abuse of the right of suing, before he will be liable for vexation. To the exercise of that right great in- dulgence is given. If the object of the plaintiff be, in any degree, to obtain ri^lit, his u-tnpcr is not to be re- gurdcd. " -' /'; ' i 'jwn or believed by th' Vot. in CASES DETERMINED IN THE June, 1809. plaintiff, or existing without his knowledge, -would afford STEuTiuG an y f ir(J bability, to an honest mind, that there ought to be a 1 recovery, probable cause in law exists; and a suit, how- ADAMB. . . . / ever unsuccessful, injurious or vindictive, will entitle the defendant to no remuneration. Here is often great wrong, and no remedy. It is damnum abxque injuria. Sound policy, however, does admit redress for injuries done by an abuse of the right of suing, on principles which do not abridge its legitimate exercise. In such case, malice, damage, and want of probable cause, must con- cur. Thus far we agree. It is also not denied, that the first requisite exists in this case. But the defendants claim, thut the declaration shows no damage, and admits probable cause. As to the former it is contended by the defendants, that, if legal damage be alle'ged at all, the averments do not show the precise amount; and, therefore, that it does not appear, but the whole was satisfied by the bill of cost. But the items of taxable cost are ascertained by public law, of which the court can take notice without averment. For example: The most which can be taxed for counsel or attorneys is 1 dollar and 34 cents, in the county court, and 2 dollars and 68 cents, in the supe- rior court. But here the plaintiff alleges, that he has ex- pended 200 dolltrs in employing counsel to defend. Is not the legal inference from this averment, that the plain- tiff had no remuneration, in the taxable costs, for what this sum exceeds the amount prescribed by statute ? The defendants admit that the allegation of imprisonment is not answered by the objection; but contend, that it hap- pened during the infancy of the plaintiff in that action. . It is hardly claimed, that she wanted legal discretion to commit the injury. At the age of seventeen yea^s, an infant is chargeable for malicious words,(c) and, inueed, () 5 Com- Dig. Enfant, D. 4. SUPREME COURT OF ERRORS. 427 u at the age of fourteen the law presumes the human June, iso'j. mind has acquired a complete sense of right and STERLING wrong."(a) Sne was more than twenty. But the prin- . A. D A M S cipul argument is, that she had not the control of the action. It was, however, "commenced by her wicked instigation." If a person causes me to be prosecuted crimmatiter, maliciously and without probable cause, it is not denied that he is liable in damages, although he could not commence or control the prosecution. If I destroy by an agent over whom 1 have not legal authority, am I therefore not responsible ? As to the exfifnae, it is further insisted, that we claim a recovery for taxable cost. This objection has already been obviated. It is clear we cannot recover a double satisfaction. But does it follow, that we cannot recover for expense at all ? In the case of Savil v. Roberta, the plaintiff declared, that " the defendant caused the plaintiff to be maliciously indicted of a riot, of which he was acquitted, by which he was put to great expense" &c. without specifying the damage Jiarticularly; which was holden good in that case, but that it would not be good in an action for a vexatious civil suit; because, as appears by the whole case, in the latter the damages must be specially alleged, else the cost recovered would be presumed a satisfaction. This case proves, that if the damages are specially alleged, no such presumption can exist. So far as the reasons in that case are grounded on tin amercement firo falso clamore, they are inapplicable here. In J'l/i. Dig. 527. Dub. edit, mentioned by the defendants' counsel, It'atfrer v. Freeman is cited, in which it is expressly laid down, that " if a man sue me in u civil -uit, yet if his suit be utterly without ground, a 1 certa nl known to himself, I ^nation of the case a ains him for the undue vrjcaiijtt (a) 1 /lavk.J' ' i 0). 428 CASES DETERMINED IN THE June, 1809. damage that he putteth me unto by his ill practice, STERLING thr>u h l ^ e au *t itself be legal, and I cannot complain of it." . v> Here is no malicious holding to bail, or want of jurisdic- tion in the court, or of right in the defendant to recover cost, or abuse of final process. Those circumstances, it is admitted, might render a suit actionable, or aggravate damages; but they are nowhere said to be essential. The nisi prius case of Rogers v. Illscombe was an action in which maliciously holding to bail was the only damage alleged. It was well objected, for that reason, that costs could not be proved as a ground of damage. It was also objected, that these costs had been taxed and paid to the plaintiff, and that she could not go for them again. The judge rejected the evidence " apparently on both grounds." Certainly, both were very solid grounds. It was also claimed, that she might go for the extra costs ; but to that the want of sufficient averments was particularly opposed. It is next contended by the defendants, that the plain- tiff has shown probable cause on the face of the decla- ration. What they claim as to the degree of probability, which is sufficient to shield a defendant, has been already admitted. The least is sufficient. But that the want of probability must appear by the plaintiff's own showing, is not a sound proposition. Whenever he knows, that, on the whole, he has no right to recover, it is very im- material in what form, or when, this is presented to the court; whether in the declaration, or a special plea, on his own evidence, or that of the defendant. The posi- tion is nowhere advanced. In Waterhouse \. Batode, no more is decided than the plaintiff here admits, -viz. that to sue, without cause of action, is not, per se, action- able; but to sue before a court which has no cognizance of the subject, is, of itself, actionable. For example: Should I h.ue before a justice of the peace on a no e with two witnesses for thirty-five dollars, and the defendant SUPREME COURT OF ERRORS. 439 show, by his plea, that one of them had become infa- June, isog. JTIOUS, or otherwise disqualified, and thereby take away STERLING the jurisdiction of the court, this record would not, of v - ADAMS. itself, prove cause of action; but had I declared on a note for forty dollars, the suit, of itself ', would have been an actionable injury. In the former instance, judgment by default would have been valid; in the latter, void. Indeed, the doctrine in Waterhouse v. Batade is as ap- plicable to an action of trespass for false imprisonment, as to a suit for vexation. For, in the instance first put, the record would justify an arrest of the defendant; in the latter, it would not. On attentively reading the case 1 of Fish v. Scott, it will appear obvious, that nothing more was intended relative to the point in question, than that the circumstances of that particular case constituted probable cause. Lord Kenyan does not intend to ad- vance the general proposition, that probable cause al- ways exists where the defendant is put to justify. Sup- pose a criminal publicly convicted and punished for theft; or confined in Newgate prison, has he probable cause of action against all those who mention the cir- cumstance ? Was publication of such a fact " never reckoned innocent?" Would the publisher be justified merely " in compassion to men's infirmities ?" Would his defence " admit, in some sort, guilt ?" Would there even be any truth in the averment in the declaration, that the words spoken were falxe and malicious? But on this point the law is not silent. In Waterer v. Freeman, it is expressly laid down in these words: "I may have an action on the case against him that sues me against MM releaae, or after the monty duly paid; YEA, though it be on a single obligation." These lust words arc very cmphatical. On an obligation with condition, the money pui : might have saved the forfeiture, ai.d the pl.uiitiff never had cause of action at all. Hut on a single obli- gation, the payment and rcle.iv,. ur. mere matter of avoidance. In the \\ hole language of the passage 430 CASES DETERMINED IN THE June, 1809. read, great pains is taken to be explicit on this point. STERLING ^ such an obligation be not conclusive of probable . v cause, much less can the speaking of words which are true. The case of Suffon v. Johns tone is strongly corrobora- tive of the same law. The plaintiff, it is true, was ulti- mately defeated, because probable cause appeared on his declaration. He failed, however, because probable cause existed; not, as is contended, because the plaintiff :vas fiut to justify before the court-martial. The declaration alleged, that the defendant well knew the facts on which the plaintiff justified; but the court held, that those facts, though considered by the court-martial as a justi- fication, were, as stated in the declaration, so compli- cated, and the inference of the plaintiff's innocence so doubtful, that the defendant might, very honestly, have belie-utd the plaintiff guilty. On this ground, and this only, they held that probable cause appeared on the declaration itself. This is apparent, not from any loose opinions which fell from the bench, but from the deliberate, written reasons, of Lord Mansfield and Lord Loughborovgh. Their language is: " The question, then, tried by the court-martial was, whether the plaintiff was justified in not obeying, by physical necessity. Now, there cannot be a question more complicated. It in- volves the precise point of time; the state of the winds; the state of the ship; the position of both fleets. It re- quires great skill in navigation. There is no question likely to excite a greater variety of opinions." Again : " Under all these circumstances, it being clear that the orders were given, heard, and understood ; that in fact they were net obeyed; that, by not being obeyed, the enemy were enabled the better to sail; thai the defence was, an impossibility o bey a most complicated point Under all thesf circumstances, we have nn difixulty f o give our opinion, that, iu law, the commodore had a pro- 5 SUPREME COURT OF ERRORS. 431 bable cause to bring the plaintiff to a fair and impartial June, 1809. trial." Now, why arc all these circvmsfajiccs thus minute- STERLING ly detailed and relied on ; their complicated and ambigu- . v- ous nature made the basis of opinion; if that opinion rested, not on their nature, but on their being presented by way of justification. The opinion on this point amounted to no more than this, viz. "that, however malicious Johnstons might have^ been, as a full know- ledge of all the facts stated in the declaration might have afforded, to an honest mind, some probability, that Captain Sutton ought, in justice, to be convicted, there was probable cause in law." If, in the case now in ar- gument, all the facts stared in the declaration would afford some probability, to an honest mind, that the de- fendant Hannah ought, in justice, to have recovered damages of the plaintiff, then, however malicious she might have been, the declaration is insufficient. Surely, the facts are not of that complicated or ambiguous na- ture, which would admit such a probability. It is further contended by the defendants, that it is not alleged, either that the words were true, or that their truth could have been proved on that trial. That they were true is essentially involved in the allegation that the defendant, Hannah, knew them to be true. What does not exist may be believed, but cannot be tnoion, to exist. As to the other allegation, if it must be presumed, that the ' public in general," who also knew them, were all incompetent witnesses, yet, as no allegation of the sort is necessary, the declaration is good without it. Suppose a promissec had received full payment on a note to a great amount, delivered it up to the promissor; afterwards surreptitiously taken it back, and coiiiint -IK < <\ an actii.n upon it. After the defendant had been long vexed with imprisonment and expense, trial approached, when the plaintiff, appalled with his own guilt, suffered n nonsuit. Long after the time of 430 ' CASES DETERMINED IN THE June, 1809. trial had elapsed, he made ample confessions, which were the first proof the defendant could obtain. Would STERLING not the injury be actionable ? In the case now before t j ie courtj a judgment for the defendant would, indeed, from rules of sound policy, have been a technical bar, by precluding all inquiry as to probable cause; but as the result has left it open for investigation, the court cannot inquire how unfortunate the plaintiff might have been, in obtaining testimony for the trial. BY THE COURT. This declaration contains all the averments necessary to support an action for a vexa- tious suit. It is expressly averred, that the former ac- tion was altogether groundless, and known to be so to the plaintiff, and yet, with an intent to vex, the action was commenced, and prosecuted, until great expensesj sufficiently specified, were occasioned. These aver- ments leave no room for probable cause ; and the plain- tiff, under this declaration, might have proved, that the defendant had declared, that she knew she had no cause of action, but had commenced it with an intent to vex the plaintiff, without any expectation of a recovery. More complete vexation and malice cannot be imagined; and if this action will not lie, it is impossible to state one that will. It has been laid down as a general proposition, that where in the original action the defendant was obliged to set up some collateral matter, by way of justification, which does not appear on the declaration, probable cause is admitted. This proposition is unsupported by prece- dent or reason. When a justification goes on the ground of a denial of the cause of action, it no more admits a probable cause than the plea of not guilty. The pre- sent plaintiff, in the action of slander, justified on the ground, that the words charged to have been spoken by him were true. This was an absolute denial of the cause of action; for it is essential to slander, that the SUPREME COURT OF ERRORS. 433 words spoken should be false; if they are true, the June, 1809. plaintiff has no cause of action. 7 V. It is not necessary to decide whether a minor would be liable, in any case, for ^vexatious suit; for though it appears, that the plaintiff in the original action was a minor, when the suit was commenced, it also appears, that she was of full age before the return-day, and that she afterwards knowingly prosecuted the suit, with the same intent to vex. We are, therefore, of opinion, that there is error apparent in the record before us; and that the judg- ment be reversed. Judgment reversed. ASAPU ABBY against JEREMIAH GOODRICH. MOTION for a new trial. ^ conveyed to I! with IMU't ll.llllS ft This was an action of trespass yuare clausum fregit, gc im and war- brought originally before Setli Over/on, Esq. a justice ""Vim? l 'con* of the peace. The defendant pleaded title; whereupon <'"'"* tllir - % Iron acres, the cause was removed to the county court, according fcowktodnoitb ami MII i ill by to the provisions of the stat. tit. 165. c. 1. s. 18. and U i..ii*i>ut<-y ilu- |il.iinii'!'iii him: HrM, tlmt ./ WHS an incompetent v.i' i,. n, ii. nu mil i > -ii-i| to ay- abie m three This was a 8C i re facias against Dutcher. as garnishee and six years from the tes- in a process of foreign attachment. tator's death; C. a creditor of B. attach- fj-j^ or JQri na i action was against JKlis/ia Wells; Dutcher ed this legacy, by process of was se ryed with a copy in Ajiril, 1805; in March, 1806, foreign attach- . , ment, in the Benton recovered judgment; and on the 8th ot May executor, fnd following, a demand was regularly made upon Dutcher demanded the o f t j ie effects of Wells in his hands to satisfy the exe- same of him, on execution, cution, but none were exposed, and the" execution was before the first . . instalment be- returned non estm-uentus. came due, and then __ brought a aiS &""o From Dut ^er's disclosure it appeared, that Ruluff answer the Dutcher, by his last will, gave fVells's wife a legacy of debt out of his own estate: Held, that he was not liable. Qit. Whether a legacy due lo the wife, but not reduced to possession, can be attach- ed, by process of foreign attachment, for a debt due from the husband ? SUPREME COURT OF ERRORS. 437 700 dollars, payable in cattle and sheep at appraisement, June, 1809. by two equal instalments, the first at the end of three n E TroK years, and the second at the end of six years, after the _ v - * BUTCHER. testator's death; that the testator died in November, 1803, having appointed the garnishee in this process his exe- cutor; and that in January, 1805, Daniel Pcnfield gave him notice of an assignment of the legacy by Wells and his wife. , The counsel for the garnishee contended, that the legacy was not by law subject to attachment in his hands for the debts of Wells. But the court instructed the jury otherwise, and the plaintiff obtained a verdict. A motion for a new trial being made, the question was reserved for the consideration of the nine judges. Divight, in support of the motion. 1. This legacy was not subject to foreign attachment for the husband's debts, he not having reduced it to pos- session. It is a clear principle of law, that to give the husband title to his wife's personal estate, which came to her before, or during coverture, he must exercise some power over it; and that this is true of things in action as well as of chattels. 1 Bac. dbr. 480. Co Lilt. 351. Harg. \Sf But. Note, 304. In Garforth v. Bradley, 2 PCS. 675. it was held, that wherever a choae in action comes to the wife, whether vesting before or after mar- riage, if the husband dies during the life of his wife, it will survive to her. To recover a legacy to the wife during coverture, she must join. Clark v. Lord duster, Chan. Cos. 41. cited 4 Vin. Abr. 79. fil. 28. The same principle is recognised by Lord K<-nyon as undoubted law, in Milner v. Afilnet, 3 Term Reft. 631. But a case from 2 Roll. Refi. 134 will probably be cited against us. It is abridged in Corny n*' Digeat, tit. 438 CASES DETERMINED IN THE June, 1809. Baron and Feme, (E. 3.) thus : " So, if a legacy be BENTOV gi ven t ^-feme co-vert to he paid twelve months after v - his ("the testator's! death, and the wife die -within the DUTCHEH. twelve months, the interest goes to the husband; for it was vested in him, and be might release within the twelve months." But the authority does not justify the abstract which Comyns has given. Montague, Ch. J. in- stead of saying, " the interest goes to husband, for it was vested in him," says, " the husband had an interest in it before the time of payment accrued, which interest it is clear he might have released before the time of payment." This authority is understood by Viner in the same sense. 4 Vin. Abr. 44. pi. 17. That the husband has "an interest" which he might release, is correct; but that the property in the legacy absolutely vesta, with- out any act of his to reduce it to possession, contradicts the plain principles of the common law. If, indeed, the case in Rolle went the length contended for by the plain- tiff, this court would hesitate before they would receive the opinion of any single judge, which goes to overthrow so important and well established a doctrine. It would amount to this; that because the husband has an interest in the wife's personal property, not reduced to posses- sion, it is, to all intents and purposes, his. This would completely destroy the common law principle, that to give him title, he must have possession during coverture. 2. No demand was made of this legacy of the execu- tor, after it became payable. The first instalment was not due until November, 1806. The executor was not bound to pay it to any body until that time; and when that time arrived, he had, by the provisions of the will, the privilege of paying it in cattle, Sec. The demand made by the sheriff on the execution was in May, 1806. At that time, the executor was under no obligation to pay; and no further demand was made. Of course, as the cattle, &c. were not demanded in November, 1806, 5 SUPREME COURT OF ERRORS. 439 there has been no refusal, on his part, to pay the legacy j une , 1809. according to the terms of the will; and, therefore, they BE ~ cannot be rendered liable to pay the amount out of their v DUTCHIR. own estate. Brace and Bradley, contra. Although we do consider, that the husband might maintain an action in his name without joining the wife; [see 2 Com. Dig. 82. Dub. edit.] yet we do not consider this case as depending upon that question. The true question in the case is, whether the husband's interest (for it must must be acknowledged that he has an inte- rest which may be made absolute at his election) may not also be made absolute at the election of his creditor attaching it in the hands of the debtor? The objection is, that if this may be done, the contingent interest of the wife, suspended during the coverture, but absolute in case she survives the husband, will be defeated. But if this interest, as is admitted, may be defeated by an act of ownership exercised by the husband, why may it not also be defeated by the operation of law, ap- plying this property to the discharge of the husband's debts? The chattels real of the wife, in case the hus- band dies fust, leaving them undisposed of, survive to her, as well as her choaet in action ; but they are liable, at the common law, to process of execution in favour of the husband's creditors. 2 Bla. Com. 438. And if the wife's contingent right of survivorship will not avail her !-.t the ordinary process of law, in favour of her husband's creditors, where the property is visible, it is difficult to discover a reason why this objection should be available, where the property is of a secret and in- \ibiblc nature, and the extraordinary process of foreign attachment is used to call it forth. In that respect only is there a difference : the principle is the same in both rases. 440 CASES DETERMINED IN THE June, 1809. BY THE COURT. The legacy to the wife of RKsha BEN~ON Wells was payable in cattle or sheep at appraisement, at two equal payments, the first of which fell due in JVb- J-'V 1 CJI1EK, member, 1806. The defendant, as executor of the last will of Ruluff Butcher, the .testator, was holden to pay the legacy when due. The plaintiff obtained judgment on his suit against Elisha Wells, and on the execution thereon the officer made return, .that on the 8th day of May, 1806, he demanded of the executor, as trustee and debtor to said Wells, the property of said Wells in his hands, to saiitfy the execution, and that he refused to show or deliver it. This demand was made before any part of said legacy was due from the executor. No other demand was ever made. The plaintiff declares, * that the defendant, executor as aforesaid, has become Jiable to pay and satisfy the judgment against Wells out of his own estate, and demands judgment for the same against him. No such demand was ever made on the defendant as obliged him to tender the cattle and sheep, mentioned in the legacy, to the officer on the execution, or would subject him, on failure of such tender, to the payment of the amount of said legacy, or the moiety thereof, to the plaintiff in money, from his own proper goods and effects. The facts will not warrant the rendering of such judgment against him in this case. For these reasons, we consider the charge to the jury incorrect, and advise a new trial of the case. , New trial granted. SUPREME COURT OF ERRORS. 441 June, IS(H). ROBERT RAND and DANIEL RAND against THE PROPRIE- TORS OF THE UPPER LOCKS and CANALS ON CON- NECTICUT WRIT of error. Serving a summons on any i>ri>ate in- This was a sftit by the Rand*, declaring, that the de- JJjJUij^ fendants were incorporated, by the legislature of Massa- not sufficient notice to h"ld cnusefte, for the purpose of rendering Connecticut River lne c<>rp'>ra- navigable in a part of that state, by means of locks and ll " l canals; claiming for damages done them by the loss of An(l ttie '"'# . virtual suin- a raft m passing through the locks, &c. of the defend- moued may f plea.l the want of notice to the corpora - The writ commanded the sheriff ** to summon James Bull, one of the princip.il proprietors and directors of The Ufifier Locks and Canals on Connecticut River, in the county of Hamfishirc, and state of Massachusetts, and the proprietors of The Ufifier Locks and Canals on Con- necticut River, in the county of Hamfishi^f, to answer," Sec. In the county court, the corporation pleaded in abatement for the want of service. In the superior court, James Bull pleaded in abatement, that no service was made upon the corporation but by leaving a copy with James Bull, of Hartfvrd, in this state : that the corporation is established only within the jurisdiction of Massac/iutftts, and not within the jurisdiction of our courts, and no process under our law can be served upon them, but the corporation is suable, and ought to have been sued, before the court of common pleas, or general sessions, in the county of Hamfithire, and state of Matsac/tusetta: and that no legal notice to appear and defend in this suit had been given to said corpora- tion. VOL. III. 9 L 442 CASES DETERMINED IN THE June, 1809. The plaintiffs replied, and recited a law of the state of R^ND Massachusetts* entitled " An act for the better ma- v naging lands, wharves, and other real estate, lying in com- mon," whereby the copy of the writ left with the clerk, or one or more of the principal inhabitants, or proprie- tors, is made sufficient notice to any town, precincts, parish, village, or proprietor of any common or un- divided lands, or other estate : and averring, that there is no 'other law in that state relative t the service of writs upon corporations ; and by those laws, there is no local existence prescribed to the corporation, (reciting part of the act of incorporation,) and that no law of that state required, that any member, officer, or proprietor of the corporation should reside within that state; or that any corporate act should be done there, and had prescribed no court, at which only the corporation should be sued, and are entirely sileet (unless by implication) as to suits of this kind against them: and further averring, that the corporation, by their charter, are not bound to have any common property, or corporate funds, (except the locks and canals,) and although empowered to hold real estate, are not empowered to raise money, except to erect and complete the works and canals: and averring, that the corporation were within the jurisdiction of this court. The existence of the corporation in Massachusetts only was then traversed. To this replication there was a special demurrer^ 1. Because, under the form of a traverse, the plaintiffs have denied a negative' averment in the plea, viz. that the corporation exists only within the jurisdiction of the state of Massachusetts. 2. That, under the form of a traverse, the plaintiffs have denied a mere inference of law from the facts be- fore alleged in the plea. SUPREME COURT OF ERRORS. 443 3. That neither in the traverse, nor inducement j un e, 1809. thereto, is any matter of fact contained, on which issue RASD could be joined. P RO PRIE- TORS OT,fcK. The superior court adjudged the replication insuffi- cient: upon which One plaintiffs brought this writ of error. Daggett and Hosmer^ for the plaintiffs. The notice given was sufficient. A copy was left with a principal proprietor and a director. The states of Massachusetts and Connecticut have both directed the service of suits upon corporations; and although these statutes do not literally extend to all corporations, yet, by analogy, the same service may be made. Our statute does not prescribe the mode of service upon a bank; but the court will, doubtless, recognise the service prescribed in suits against other corporations. Not only by the laws of Massachusetts, but upon general principles, the ser- vice is good; for lex ncminem cogit ad imfiosaibilia; and no other service could be made but this. And indeed, by the plea, it does not appear that there is in Massachu- setts a single member of this corporation, or that any ether service could be made there, than has been made here. But if the service has not been made according to any existing statute, and in fact there is no statute upon the subject, the court will only look to see if rea- sonable notice is given; as was done by the couYt of the United States in the case of Chitholm, Executor, v. State nf Georgia, 2 Dal. 419. and if reasonable notice has not been given, will continue the case, and direct notice. 3 Dal. 335. The courts of the United States have no more authority as to prescribing notice than our courts luivc. Bnt i is said, the corporation can be surd only in thr 444 CASES DETERMINED IN THE June, 1809. state of Massachusetts. The plea does not show the RAND possibility of a suit in that state. It ought to show what PRO PR IE- courts have jurisdiction, and how they have jurisdiction, TORS OF, &c. an d i n what manner service can be made, so that the plaintiffs might be enabled to proceed upon safe ground. Every plea to the jurisdiction must show a better and more sufficient jurisdiction. Mostyn v. Fabrigas, Coivfi. 172. 181. Again, the corporation have no local existence; and it does not appear, that any individual of it resides in Massachusetts. But if the defendants had a local exist- ence there, they may, notwithstanding, be sued here, as well as an individual of that state. The action is tran- sitory, and either person or property will give jurisdic- tion to the court; and the property of Bull is liable. Harvey v. East-India Company^ 2 Vern. 396. 6 Vin. jibr. 310. So, if a suit is brought against a town, society, bank, city, See. the property of the individual inhabitants and stockholders must be liable on the execution. Cor- porations constituted by another state may bring suits in this state; and Judge Paterson decided, that they might be sued in a state where they were not incor- porated. It is not by the plea denied, that the defendants have property in this state, upon which the execution may be levied. But were it otherwise, and the plaintiffs could not derive the benefit from the judgment that they ex- pect, this can be no reason why the court should refuse to give them a judgment. When the national court were asked, what could be done with an execution against a state, it did not prevent them from granting it; but the court said, it would be time enough to decide it, when the difficulty came before them. And surely, if the defendants are duly notified, it is improper to in- quire what benefit will result from the judgment. SUPREME COURT OF ERRORS. 445 But the facts relative to the service are not before the June, 1809. court. The court can take no notice of the facts stated R^^J in the plea. The plea which was before the county T - PKOPRIE- court is waived: and James Bull now appears as a TORS OF, &c. natural person, and pleads to a suit brought against a civil fierson. It is therefore a mere nullity. The defendants have made no answer to the declaration; and if any objections could have been made to the notice, they must be con- sidered as abandoned. Dwight, for the defendants. It is said, the court are not bound to notice the plea, because it is the plea of James Bull only, in his indi- vidual capacity. But James Bull having been summoned, it is certainly proper for him to inform the court of the irregularity of the proceedings against him, especially as those proceedings might seriously affect his property. And he could plead in no other way. An individual member of a corporation cannot use the corporate name and seal, and thus constitute an attorney for the corpo- ration. The facts thus disclosed show, that no legal notice has been given. Tlie notice given is certainly not such as is required by the common law. In England, there is no mode to compel a corporation to appear by a pro- cess against the individual members. 1 Kyd on Cor/i. 272. \ Tidd's Prac. 209. Mills'* case, T. Haym. 152. Hut the process must be against the property of the corporation. Ke.v v. Gardener^ Cotv/t. 85. Rex v. ll'indham, Cowft. 377. London v. Lynn, I //. /?/. 209. 5 Com, Dig. 569. And if the corporation has neither lands, nor goods, there is no way to compel an appear- .nr.p, except by the authority of parliament. 446 CASES DETERMINED IN THE June, 1809. Service has not been made in conformity to our sta- liTxD tute ' ( wn i cn was made nearly a century before this cor- v - poration existed,) for no copy has been left with the PROPRIE- ' I-ORS OF, &c. clerk, selectmen, or committee-man, as is directed in the cases provided for by that statute. Because this ser- vice is not consonant to the statute, nor common law, the statute of Massachusetts is interposed. Without in- quiring whether this service is in pursuance of that sta- tute, it is enough to say, that the statute of one state can never be admitted to direct the service of process in another. It is required by no principles of comity, and is repugnant to every idea of independence. As well might an officer of that state be permitted to execute process in this, as to admit that an officer of this state is to be directed as to the manner of serving that process by the laws of another state. Pearsall v. Dtvight^ 2 Mass. T. R. 84. Lodge v. Phclfis, 1 Johns. Cas. 139. But a corporation cannot be sued out of the state which constituted it. There is the property of the cor- poration. It cannot hold lands in another state, unless by comity. And if, as has been shown, judgment can go only against the property of the corporation, there is / surely no necessity to go out of the state which created it. Where there is no corporate property, a judgment is utterly unavailing, and cannot be enforced, any moie than a judgment against an individual in a foreign coun. try having no property here. And the court will not employ themselves in rendering a judgment which must be entirely nugatory. But it seems to be claimed, that the property of each individual stockholder is liable. This certainly is con- trary to the principles of the common law ; arid would be productive of the most dreadful consequences. Upon this "principle, every individual, who owned a share in the Gloucester Bank* (if found in this state,) might be 5 SUPREME COURT OF ERRORS. 447 loaded with the immense debt of tjiat institution ; .and June, 1809. no member of a town or society could travel in another EDWARDS state without being liable to process for any claims % which individuals might make against such town or society. Before our courts proceed upon principles attended with such consequences, they surely will re- quire the party claiming to establish them to show that part of the act of incorporation, which subjects the de- fendants to such penalties. BY THE COURT. In this case, the writ and process has been no otherwise served than by leaving a copy thereof at the usual place of abode of James Bull^oi Hart- ford, in Connecticut, who is described therein as one of the principal proprietors, and one of the directors of the corporate body. Serving a summons upon any private individual of a corporation is not due and legal notice to the corporate body. Judgment affirmed. JAMES R. EDWARDS and JAMES DOWNS again*t DANIEL BEACH. WRIT of error. , ft wmit, the daniftgen rr Beach brought his action of trespass to the county not limited br court against Kdvxirda and Downt, declaring, that he ,,",. was a tavern or innkeeper; that he was the owner of a ' lcM certain painted board or sign, on which was written his name and occupation, to enable him to obtuin custom; that the same was suspended before his house in the 448 CASES DETERMINED IN THE June, 1809. highway, and was of the value of twenty dollars ; and the EDWARDS defendants, with force and arms, took and carried away, and burned and destroyed said sign; whereby the plain- tiff wholly lost the same; to his damage one hundred and fifty dollars. Beach appealed the cause to the superior court; where he recovered a verdict and judgment for Jifty dollars. To reverse which, this writ of error is brought, alleging that the superior court had no jurisdiction, and that the verdict could not exceed twenty dollars, the value of the sign. Daggett, for the plaintiffs in error. The question is, whether in trespass, it is competent fdr the court and jury to give damages beyond the value of the property specified in the declaration. Here, the only gravamen stated is the destruction of the sign : There is not even the common allegation of et alia enor- mia. For destroying the sign only can damages, there- fore, be given; and the sign is valued at twenty dollars. If greater damages be given, then there can be no rule of damages in this action. The defendant does not come prepared to controvert the value, beyond the sum specified. And it is to be presumed, the plaintiff will always state the value of his property high enough; and when he has thus given his own rule of damages, he ought not to be permitted to claim more. Where an important right is in question, in an action of trespass, the court have given damages to indemnify the party for the expense of establishing it; as in suits for flowing lands, or for keeping up a gate. But in SUPREME COURT OF ERRORS. 449 those cases, there was nothing to limit the damages, as June, 1809. in this case. v . Ingersoll and R. M. Sherman, for the defendant in error. There is no rule to be" found, that in trespass the value of the property destroyed shall be the measure of damages. The reason why a -value should be stated at all is, that it may appear to be flro/ierly. If no value is stated, a declaration in trespass would be good after verdict, though it would be otherwise in trover; for in trover, the conversion of the property is the ground of action,, and the value of it the measure of damages. But in trespass, the gist of the action is the force; and the circumstances attending it may aggravate the damages; and the destruction of the property is one of those circumstances. It is admitted, that Beach could not show, that the property was worth more than is stated in the declaration; but he has a right to recover for other itijurie* than the losa of a sign. In torts, there can be no specific rule of damages; the question must be, what is the injury, not what is the worth of the pro- perty injured. Were a stone thrown into the room of a house usually occupied by a family, could it be seriously contended, because a shilling would replace the glass, that a shilling should be the amount of damages ? A more liberal principle has been adopted; and the superior court have decided, that for an injury to a turnpike-gate more might be recovered than the actual damage done to the gate. BY THE Cot'RT. This is an action of Tcspass vi et art/a'*, and sounds in damages. VOL. 111. AM % 450 CASES DETERMINED IN THE June, 1809. The declaration charges a violation of the plaintiff's BAII.EY right of property and possession by force, and the abduc- T ' tion and destruction of property of a certain value. LEWIS. The value of the property, or the amount of the injury done to it, is not the only ground of damages : the plain- tiff is entitled to recover for the force and injury, ac- cording to the nature and circumstances of the case, and the aggravations attending it, as well as for the value of the property taken. Were it otherwise, a per- son so disposed might forcibly dispossess another of any article of property at his pleasure, and compel the owner, however unwilling, to accept of the value in its stead. Judgment affirmed. HEZEKIAH BAII.KY, JAMES JUDSON and GIDEON BEARDS- LEV, Committee of the Presbyterian Society of NEW- STUATFORD, against FREDERICK Ltwis, WILLIAM^ SCOTT, ABNER CABLE and WILLIAM WHEELER. A bond was THIS was an action of debt on bond, in the penal given to .#., 8Um o f \ 2 00 dollars, executed by the defendants to _/>. ana G., committee of JElisha Haialey, Ezra Lewis and Efihraim Sherwood, a an ecclesias- . r , . r , tical society committee ot the presbyterian society of Jvew-Strat/ord, anc * to tne * r successors in office, alleging that the plain- office; after tiffs are successors in office to the obligees named in the removal of the obli- the bond. gees named in the bond, the successors The defendants having prayed oyer of the bond and brought an action on the bond in their own names: Held, that the action was well brought. Where a fund was bequeathed to the ecclesiastical society of JV. .S., the interest of which was to be applied for the purpose of maintaining a free school in one of the dis- tricts, it was held, that an agreement by the society to divert this fund from the object for which it was given, and apply it to the support of the ministry, was void, being a fraud upon third persons. SUPREME COURT OF ERRORS. condition, it appeared that the bond was to be void on June> 180Q the payment of 800 dollars by the first of April (then) HAILCY next, to the said obligees, or their successors in office. v. The plea then alleged, that A. G. Scott, on the 25th of ! '* W1S May, 1 805, made his will, and therein, among other things, directed that his notes and money be placed on ample security at interest, at the discretion of his executors, and the parish of New- Stratford, (or their agent,) and the interest paid annually to his wife Susan, for life, and at her decease, the principal to belong to the parish of New- Stratford, the interest of which to be applied for the purpose of maintaining a free school in the Centre District ; his Sharfi house and land to be sold, and the avails applied with the other money. The plea further alleged, that Scott died on the 12th of October, 1805, and on the 25th, the will was proved and approved, and an appeal taken to the superior court by the defendants, his heirs at law; that on the 5th of January, 1807, while the appeal was pending, said society agreed with the defendants, that they should execute this bond for 800 dollars, (estimated at one quarter of the amount given by the will to the society,) and that thereupon the society would desert their trust, and would prevent the appli- cation of the money to the school district, and apply it to the support of the gospel, and that if it ever was applied otherwise, the heirs should recover it of them; that the bond was executed in pursuance of this agree* ment, and for no other cause or consideration; that the defendants no further prosecuted their appeal; and that the society, on the 5th of January, 1807, deserted their trust, renounced all claim to the legacy, and resigned up to the defendants all sums of money which might accrue to them by the will. The plea also alleged, that the plaintiffs were prosecuting this action for the sole and exclusive benefit of said society. 452 CASES DETERMINED IN THE June, 1809. To this plea there was a demurrer; and the superior " court adjudged the plea to be insufficient. ji A I L E V J V. LEWIS. Daggett,(a} in support of the judgment. 1. This action cannot be sustained by the plaintiffs in their own names. If a bond be given to a certain inn- keeper, merchant, &c. and his successor, the individual who happens to be the actual successor, cannot maintain an action in his own name. The term successor is ap- plicable only to a corporation ; and if it be inserted in an obligation to any other it is to be rejected as surplu- sage. 6 Vin. Abr. tit. Corporations, (G. 6.) p. 275. Are the committee of an ecclesiastical society a corporation ? They clearly are not at common law. No statute has made them such. It is inquired, who shall sue ? It is not necessary to say that the society shall sue. There are obligees named in the bond. It does not appear that these per- sons are dead; but if any of them are dead, their survi- vors may sue. On the principle for which we contend, it does not vary the case, that the nominal obligees are removed from office, and others appointed in their place; for the addition of the office to their names is merely descrifitio fiersonarum, and the words "to their successors" are inoperative. ^ Will it be contended, that the statute under the title of " Ministers" gives the plaintiffs, as the society's com- mittee for the time being, power to bring an action on this bond ? Over what species of property have the legislature given the committee the powers there speci- fied ? Over such only as has been granted or seques- (a) Chapman was to have argued on the same side, but was not in court when the cause came on. SUPREME COURT OF ERRORS. 453 tered for the use and support of the ministry. See both June, 1800. the preamble and enacting part of the 16th section. The B ~~ powers given by the 17th section relate to the same subject matter, and are given " for the purpose and end aforesaid," referring to-the preceding section. The 18th section gives the committee for the time being the same flowers as their predecessors had. but no other powers. In this case, the property was not bequeathed for the support of the ministry, but for a very different object, viz. that of maintaining a free school in a par- ticular district. 2. The consideration of this bond was illegal, being a fraud upon third persons. It was given upon an agree- ment made to defeat a trust to abandon a valuable in- terest belonging to the Centre School District, and apply it to an object totally diverse. The education of child- ren was the testator's object. This arrangement ap- plies the fund to the support of the Presbyterian Minis- try. Willis et al. v. Baldwin* Doug. 450. and Jackson \. Duchairey 3 Term Rc/i. 551. were cited. R. M. Sherman and Hatch, contra. Two objections are taken to a recovery: First, it is contended, that a bond made to a society's committee, and their successors in office, will not sup* port an action in favour of such successors. To determine the force of this objection, it is necessary only to advert to the provisions of our statute on. the subjcct,(o) and to the course of practice and decisions under it. For it is not claimed, upon the general principles of the common law, that this action would be sustainable, in favour of the present plaintiffs. (a) Tit. ill. 4.54 Jane, 1809. BAILEY v. LEWIS. CASES DETERMINED IN THK The 16th section of the " Act for the settlement, sup- port, and encouragement of ministers," Sec. authorizes, in general terms, the selectmen of a town, where there is but one ecclesiastical society, and the committees of ecclesiastical societies, or a committee appointed by a town or society, for that end, as the case may be, to de- mand, receive, take care of, and improve, the lands, moneys, &c. sequestered, or given, for the support of the ministry, in such town or society, according to the true intent and design of the grant, donation, or se- questration. To facilitate the execution of this trust, it is provided by section 17. " That the selectmen, and committee aforesaid, or the major part of them, shall and may make all necessary contracts, and commence, prosecute, and pursue all needful suits, actions and causes in the law, for the purpose and end aforesaid." Then follows section 18. which gives to the succes- sors of such selectmen, or committees, " the same power, in their own names, to act, appear, prosecute, and pursue in and upon any contract, suit, action, or cause, for and concerning the matters aforesaid, as fully as those, whom they succeed in the office aforesaid, miff/it, or could do, if they had not been removed." It may be asked here, what force, or effect, can be given to the clause last recited, upon the construction contended for on the other side ? It was not surely in- serted for the mere purpose of authorizing successors to sue, in their own names, upon a contract to them- selves. This would be simply declaring, that such suc- cessors, when appointed, should' be a committee; and would be repeating, in substance, the provisions of the clause next preceding. This section does not particu- larly regard the case of a contract made to successors, by name, after their election to office; but it gives them the general power, " in their own names," to pro- secute, Etc. " upon any contract," Sec. as fully as those 5 SUPREME COURT OF ERRORS. 455 whom they succeed, might have done, if they had not June, 1809. been removed. It is not necessary, indeed, to discuss, BAILEY or determine the question, whether successors may , v< maintain an action, in their own names, en a contract to a former committee simply, without naming successors. It is enough for us to show, that this may be done, where the contract or obligation is expressly made to the former committee, and their successors, eo nomine. The practice and decisions upon this clause of the statute, so far as they have been ascertained, have been in perfect conformity to the ideas here advanced. It is understood to have been the constant practice for suc- cessors to sue in their own names, in such cases; and it is known, that in some instances, where this point has been made, the decisions of the superior court have sanctioned the practice. The case of Judd et al. v. Woodruff, 2 Root, 298. and that of Bicrcc et al. v. Kel- logg,(a) decided in Litchfield county, August term, 1 808, (a) JOSEPH PIERCE ET AL. Committee of Donations for the First Ecclesiastical Society in Corntoull, against JUDAH KE I.LOGO, Ex- ecutor of the last will, kc. of NEHEMIAH BEARDSLEY. Superior Court, iJtch field County, Output term, 1808. THIS was an action on a note for 120 dollar*, Riven by the testator to John Culhoun anil others, committee, 8tc. and their successors in said office, dated January fill), 1804. In 1 802, the testator and several other persons undertook to raise, by subscription, a fund for the support of the miiiutry in the first ec- clesiastical society in Corntoull. An instrument was drawn up, wliirU they called a ctvirtrr of donation*. In this, they agreed to raise the aura of 5,000 ihllnrt, or upwards, for the support of the ministry, and directed the manner of appropriation. The principal sum was always to be kept untouched, ai>d the interest to be applied to the pa>- ment of a minister. They agreed also to give their notes to what tln-y i-alli-d the committee of dinatUnt, payable on demand, and thr i payable annually, for the m hr them severally luhscrilx-d ! it.r 456 CASKS DETERMINED IN THE June, 1809. fully warrant this assertion. In the former of these cases it BATi/EY was determined, that where land is granted to a society's committee, and their successors, the latter may maintain LEWIS. ejectment in their own names. In Bierce et al. v. Ktllogg it was decided, that successors may sue, in their own names, on a note of hand to a former committee, and their successors. The question there arose upon de- murrer, arid was fully considered. The only difference between that case, and the one at bar is, that, in the for- chartcr ; and if the notes should be paid on any 13th day of December in any year, they might be paid in cattle, iron, kc. and the charter was to become obligatory on the subscribers, provided the society should accept it, and become responsible to make good any deficiency that might by any accident happen to be made in the amount of the fund, so as to keep it good, on or before the 1st of December, 1803, and have it recorded in their records. There were subscribers to this charter to the amount of about 4,000 dollars, among whom was the tes- tator, who subscribed 120 dollars. 'I he charter was accepted by vote of the society, and recorded in May, 1803. In the charter it was also provided, that the society should annually appoint a committee, to be called a committee of donations, who should have the care of the fund : and that the several subscribers should execute their notes to this com- mittee for the amount of their subscriptions. The testator executed his note to John Calhoun and others, commit- tee of donations for the firpt ecclesiastical society in Cornwall, and to their successors in said office, on the 6th day of January, 1804, for 120 dollars, the amount of his subscription. The interest on this note was regularly paid, and endorsed, till January, 1 80"; when the testator died, and the executor refused to pay either principal or interest. In March, \ 808, an action was brought on the note in the name of Joseph Bierce and others, committee of donations, &c. and successors in said office to John Calhoun, He. The manner in which this com- mittee originated was shortly staled in the declaration. The cause was appealed to the superior court. The defendant in his plea recited the whole of the charter of donations, and averred that the note was given in satisfaction of the subscription to the charter, and then averred that the society had not made themselves liable to make good deficiencies which might happen in the fund, and that deficiencies had happened by means of sundry Insses which were particularly set forth in the plea. SUPREME COURT OF ERRORS. 457 I.F.WIS. mer, the note was given to a committee, appointed by j un c, isoo. the society to manage its funds, in pursuance of the BAILEY powers conferred by section 1 6th of the statute; a cir- cumstance, which did afftct the decision, and which does not render it the less applicable to the point in debate. Indeed, in one case, the superior court went much farther, and determined, that even the deacons of a church might support an action in their own names, The plaintiffs traversed that part of the plea, which related to do icieticies in the fund, and set forth the vote of the society accepting the charter. To this there was a demurrer. The first and principal exception was to the declaration: That ii ought to have been brought in the name of the socirtv, and not in the name, of the comm-ttee. And I /toot, 44O, 441. was cited, mid much relied on. It was urged, that ihc romiiiittee of donations was a com- mittee not known in law; tli it they hud no beneficial interest; and that they could not maintain an action. It was also insisted, that as 5,000 dollars had not been raised, no right of recovery existed in favour of any per* r corporation: i dilion on which the right was to \est not having been complied with- To the first exception it was replied, that the cause of action was founded on a contract between the parlies; that the testator himself had designated the persons to whom he would pay the amount of his note; thai In- h-.id expressly contracted to pa\ to them, and to such persons as should be appointed tn succeed them in their office; r/n.t he had altt agreed, tluit t/it tociety should appoint a committee under lhat denomination; that aa the contract was express, no action could Ix' maintained in the name of the society; and I Hoot, 53. Hoot, '298. r, 18ii, 183. Statutti of Connecticut, p. 357, 318. wen To the 2d exception it was replied, that the testator had given his own construction u> the charter. It was nowhere said, that ii dollar* were not raised, their subscription should be void; and as the subscription* had all been made, and the charter acci pi< ,1 ,'.\ die socie- ty, and recorded, long before the note was given; and as he Ii interest on the note several years, it should not now be permitted him tn VOL. HI. 3 N 458 CASES DETERMINED IN THE June, 1809. on a note given to the former deacons, and their suc- cessors in office. 1 Root, 53. But further: if this action be not sustainable by the plaintiffs, it may be asked in whose favour it would be sustained ? It will not do to say, that it should have been brought in the name of the committee, to whom the obligation was made; for the 18th section of the statute gives to successors the power to afifiear and prosecute, Sec. " in their own names," " upon any con- tract," " as fully as those whom they succeed," " might, or could do, if they had not been removed." This clause, at once, recognises a disability in the former committee, to appear and prosecute, Sec. and declares the power of their successors. It will hardly be pretended, that the action could have been maintained, by the in- habitants of the society; for that would be doing vio- lence to the terms of the obligation. It is objected, however, that the fund, secured by this bond, is not a donation for the support of the ministry; and, therefore, that the bond itself does not come within the purview of the statute. This argument proceeds upon an unwarranted assumption in point of fact. The legacy bequeathed by A. G. Scott was not, indeed, ap- plicable to the support of the ministry; but the whole amount of this bond, by the condition of it, is applicable say that the condition on which he was to become liable had never been performed. The court adjudged, that the replication of the plaintiffs was suffi- cient, and for them to recover. Gould and Slosson, for the plaintiffs. Bacon, for the defendant. [Ex relatione amici.] SUPREME COURT OF ERRORS. 459 to that use, and no other. We are not now seeking to June, i09. recover the legacy, but the sum due on the bond. 2. Iu the second place, the defendants contend, that the consideration of mis bond is illegal. They insist, that the act of the society, which is the consideration, w -. the desertion of a trust; and thut this act was pre- judicial to those for whose benefit the trust was crea- ted. Thus the bond is made to stand on the footing of contracts in fraud of third persons. To this objection a variety of answers may be given. First, it is denied, that any trust is created by the terms of the will. The testator bequeaths the interest of his notes and money first to his wife for her life ; and then, at her decease, he directs, " that the principal shall belong to the parish of New Stratford, the interest of which is to be applied for the purpose of maintaining a free school in the Centre District." There are no words apt to create a trust, let the bequest have been made to whom it may. The language of the testator, " that the principal shall belong," Sec. most obviously imports a beneficial interest. It is true, that in this clause he directs the use ; but this does not militate with the con- struction contended for. It is said, however, that the bequest is for the purpose of supporting "a free school in the Centre Dittrict;" and thus that it is made in trust for the inhabitants of that particular district. The an- swer is, that these words merely fix, or locate the school in the place, which, probably, in the judgment of the testator, was the most convenient for the inhabitants of the society. The phrase " free school" is, indeed, vague; but, when we see it used without limitation, it is natural to conclude, that the tchoot was intended to be free, at least, to all persons concerned in the bequest. There is not a single expression in this clause, from BAILEY \ J.F.'.VIS 460 CASES DETERMINED IN THE June, 1809. which it can be collected, that the inhabitants of the BAILEY Centre District were selected by the testator, as exclu- T v sively the objects of his bounty.^ Secondly, whether a trust were created or not, still it does not appear that the society of New Stratford was appointed to execute that trust. This fact, being the sole foundation, on which this part of the defence rests, ought to have been distinctly averred in the plea. Yet it is nowhere averred, that the legacy in question was given to the inhabitants of this society, in trust, or otherwise. It cannot be concluded, therefore, that the society had any interest in the legacy, or that any trust was created, which it could have accepted, or executed. Nor, as the plaintiffs contend, was the bequest, in fact, made to that society. By the terms of the will, the sum bequeathed is given " to the parish of New Stratford;" but, it should be remembered, that this is not the corporate name of the society, and that a corporation cannot acquire a name by reputation. But if this ambiguity can be aided by construction, or extrinsic evidence, so as to give the will effect, that con- struction ought to be resorted to, which involves the fewest difficulties. The intent of the testator most pro- bably was to give the legacy to the school society within the limits of the same corporation, to support a free school, for the benefit of all the inhabitants to be located in the Centre District. This interpretation is the most liberal ; it best comports with the language of the testa- tor; and particularly, it saves the necessity of supposing a trust, which the terms of the bequest do, by no means, create. Thirdly, if we admit that & trust of the precise nature claimed by the defendants, were in fact created, and that the society of New Stratford were appointed trustee; SUPREME COURT OF ERRORS. 461 still, we maintain, it would have been incompetent for June, 1809. that corporation to have accepted and executed it. AH BAI) IY corporations, in this state, are created by statutes, which . LEWIS. uniformly define and limit their powers: But we have no statute which gives to ecclesiastical societies the power to have the oversight and superintendance of schools, or to manage their funds. Indeed, we have one, which seems wholly to negate the existence of such powers; for it provides, that such societies " shall have no power to act on the subject of schooling. "(a) But aside from this provision, the general rules of law do not permit the execution of such a trust, by a corporation, without a special delegation of authority. Judge Blue lest one says, that a corporation " cannot be an executor, or administrator, or perform any personal duties." (1 Bl. Com. 504. 1 Lev. 227.) Aggregate cor- porations cannot be feoffees in trust for the use of others; (Went. Off. Ex. 17. 25) nor can they be made joint- tenants, or trustees. (Jac. Law Diet. Tomlitm'x edit, tit. Corporations. 2 Fonbl. Eg. 143, 144. and cases there cited.) In short, such corporations cannot inter- fere with affairs foreign to their institution, and not ne- cessary to the purposes or ends of it. On the other hand, it is the appropriate business of a school society to execute such a trust. It is one of the ends and pur- poses of its institution. But a school society, though constituted by law, within the limits of an ecclesiastical society, is yet a distinct corporaiion.(A) Fourthly, supposing the strongest case which the defendants can claim; that the society of New Stratford was appointed trustee, and that it was fully competent to accept and execute the trust; still the conclusion, attempted to be drawn, does not follow. The iiujuiry (a) Stat. Conn. til. 10. c. 1. . 6. (A 1 ) Stnt. < 'it. c. 1 C //*if, i.'.'. 462 CASES DETERMINED IN THE June, 1809. is, whether the entire contract between the society and B the heirs of A. G. Scott be void, as being made in fraud of third persons ? Before the affirmative of this ques- tion can be settled, it must be made to appear, first, that some act stipulated for, and to have been done in pursu- ance of the contract, tended to prejudice the rights of others; and secondly, that it was such an act as the party undertaking had no right to perform. It is believed, that in every case in the books under this head of un- lawful contracts, these plain principles are recognised. In the cases of Willis et al. v. Baldwin, (Doug. 450.) and Jackson v Duchaire^ (3 Term Refi. 551.) which are the only authorities cited in this branch of the argument for the defendants, the acts stipulated for, and on the giound of which the contracts were holden to be illegal, tended directly to injure third persons. These cases, indeed, could not have been cited as determinations in point, but only as establishing or illustrating the general doctrine, on which this part of the argument for the de- fendants proceeds. The general doctrine, however, is not questioned; the only controversy is respecting its limitations. We ask, then, was there any act to be done by the society of Acw Stratford, which that corporation had not a right to perform, or which tended to injure others ? What has the society done, or obligated itself to do ? It is nowhere averred, that any act has been performed, or agreed to be performed, with an intent to defraud. Indeed, for aught that appears from any direct averment in the plea, the contract was entered into with the most upright intentions. What then is the ground of complaint against this contract ? 1 . That the society contracted, as it is alleged, to pre 4 SUPREME COURT OF ERRORS. 463 vent the fund created by the will of A. G. Scot( from j un e, isoa. being applied to its appointed use. But it does not appear BARLEY from the record that any such stipulation was made. . v 2. That the society, as a part of the contract, agreed to refuse, and did in fact refuse, the trust, in consid< ra- tion of a sum of money^ which the defendants obligated themselves to pay. But if the act of declining the trust were indifferent, or innocent in itself, its character is not altered by the circumstance that the society was paid for it. 3. That the sum secured by this bond is to be applied to support the preaching of the gospel. Yet, if this were even an unlawful use, which will hardly be asserted, the strength of the obligation would remain unimpaired. 4. That the society took upon itself to refuse or desert the trust, appointed by the will of Scott. To this aver- ment, we answer, that the society was not bound by the appointment of the testator, and, of course, has violated no obligation, by refusing the trust. The case is not, in this respect, distinguishable from that of an executor, or a testamentary guardian. Who will say, that one appointed to such a trust is bound, at all events, to ac- cept and execute it ? It is not pretended, that the society had done a single act, prior to the date of the bond, from which an acceptance of the trust could be implied. The executor had caused the will to be proved and approved, and the defendants, who were heirs of Scott, had taken an appeal. Thus the matter stood; no trust had been accepted; no funds had been received; and, as yet, it was even doubtful whether the will would be established. But further, the refusal of the society did not tend, in the smallest degree, to prejudice the rights of those 464 CASES DETERMINED IN THE June, 1809. for whose benefit the trust, if any, was created. Those JBATLEY ri g nts are le ft unimpaired. Upon a proper application, v - chancery will supply a trustee; and thus the funds pro- vided by the will are still liable to be called out of the hands of the representatives of Scott, and applied to their proper use. 2 Fonbl.Eq. 146. The plea of the defendants, therefore, goes merely to show, at most, that the bond is without consideration; not that it is illegal. But it is an ancient and well esta- blished rule, that a mere want of consideration cannot be averred against a bond. BY THE COURT. In this case, two questions arise: First, whether this action can be supported by the plain- tiffs, as successors in office to the obligees in the bond ? Secondly, whether the bond is not void, as tending to defeat the obvious intentions of the devisor, and operating a fraud on third persons ? 1. This bond being given to certain persons by name, the action might well have been brought in their names, upon principles of common law, although they are de- scribed as " committee ;" and by the express words of the statute, the same powers are given to their succes- sors to sue in their names, as the predecessors had. The court are, therefore, of opinion, that the action is well brought. 2. But they consider the attempt to divert this fund from the objects of the devisor's bounty as unwarranta- ble in point of lawi and a fraud upon those interested in the establishment of a school according to the will; and on this ground, the court affirm the judgment of the su- perior court. Judgment affirmed. SUPREME COURT OF ERRORS. 465 June, 1809. HEZEKIAH HUNTINGTON against DAVID TODD. WRIT of error. After judg- ment in\an ac- tion of os- This was an action of assumfi&it by Huntington against sitmpsit, the Todd, before Thaddcus Leavitt, Esq. justice of peace, gc( | ma y be declaring, that in October, 1799, and November, 1799, the ^"ess " plaintiff, in behalf of the defendant, and for his use and <--ven a writ- ten promise. benefit, delivered two writs in favour of the defendant, against Elijah Grander, to Elihu Kent, a constable, to fog u^e 'tJ serve and return; and be inff duly served, Kent charged P a > r l ' ic debt of T. did pay his fees to the plaintiff; which was wholly unknown to it, is a good the plaintiff, until May, 1806; and the same was Derer'^ >> M JL M - a settled by Todd with Kent, nor the plaintiff, nor ever promise bv T to repay //. charged upon book by the plaintiff' to the defendant, nor ever released by the plaintiff; and the plaintiff was by law holden to p:iy the same to Kmt, with interest. And on the 30th of May, 1806, the same was demanded by Knit, and then paid by the plaintiff, to the amount of 7 dollars and 15 cents. And on the 20th of June next, the plaintiff gave notice to the defendant thereof, who thus became liable to pay the same to the plaintiff; and being so liable, assumed and /iromised to fiay, &c. The case was tried upon the general issue. Judgment for the plaintiff. The defendant appealed; and at the county court pleaded in bar, that the plaintiff, as his t- torney, instituted the suits, and delivered the \\rits to the officer; and that on the 29th of October, 1803, the plaintiff rendered his account, and the plaintiff and de- fendant then settled all book accounts, and the plaintiff gave to the defendant at that time a receipt, in which he acknowledged that "a// book accounts" (between them) " were settled and tati*Ji /." VOL. Ill 3 O 466 CASES DETERMINED IN THE June, 1809. To this plea the plaintiff demurred. HUNTING- TON The county court adjudged the plea sufficient; and a TODD. writ f error being brought, their judgment was affirm- ed in the superior court. Daggett, for the plaintiff. 1. The money paid by the plaintiff to Kent was not necessarily a book debt charge. Money paid by one for another may be a proper charge on book, but is not necessarily so, and cannot now be presumed to have been so. The plea, therefore, is no answer to the plaintiff's claim. 2. This charge was not included in the settlement made. If it was not necessarily a charge on book, it was not necessarily included in the settlement; and the defendant must show that it was included. " All book accounts were settled;" but this was not then a book ac- count of the plaintiff. The right of an attorney to charge the plaintiff with the service of a writ does not arise eo instanti he delivers a writ to an officer; for the officer has a right to charge the service either to the plaintiff or the attorney who delivers it. Huntington, there- fore, could not properly charge Todd until he had paid JT^n^orknew that Todd had not paid Kent, and that Kent had charged him. It is averred, that he did not know of this charge by Kent to him until after the settlement with Todd; and if the propriety of his charge depended upon his knowledge of Kent's, the want of that know- ledge may with propriety be alleged in his declaration. Again: as Huntington did not exhibit this charge, in the account presented at the time of the settlement, the release applies to those articles only, which are men- tioned in the account. It has been decided, that even a SUPREME COURT OF ERRORS. 467 judgment in an action of assumfisit will not be a bar to June, 1809. a claim, which might have been given in evidence, if HUNTING- the claim was not actually made. Seddon v. Tutoji, 6 v * Term Refi. 607. TODD - 3. But the promise stated in this declaration must now be taken as. an express promise. Atkins v. Hill, Coiv/i. 284. Alexandria Ins. Co. v. Young, 1 Cranch, 341. [Mr. Daggctt was informed from the bench, that this point had been too often settled, to need support.] It is said, there is no request stated on the part of the defendant; but it is alleged to have been done for hit use and benefit. The plaintiff, therefore, has suffered an injury, for the benefit of the defendant; and a con- sideration may arise either by an act done by one party for the benefit of the other, or by doing, or permitting somewhat to be done, to the prejudice or loss of one of the parties. Pova. on Cont. 342. 344. The considera- tion here stated would have been a good one, had the claim been barred by the statute of limitations; for an equitable, as well as legal obligation, is a sufficient con- sideration for a promise. Hawker v. Saundersy Coivfi. 290. And a mistake in a settlement would be a suffi- cient consideration to support a promise, although the fact of a mistake might not be sufficient to imply a promise. Bradley, for the defendant. 1. There is no consideration for the promise. The declaration does not state that the defendant employed the plaintiff to do this service, or that he knew that it was done, until years afterwards. The plaintiff has done an injury for which an action would lie against him; and the act can, therefore} form no good consider- 468 CASES DETERMINED IN THE June, 1809. ation for a promise. Were it a benefit to the plaintiff, HUNT-ING- * l raust have been done at his request, or no action would 10 N lie. And a subsequent promise will not aid it, because TODD. the consideration is past. It may be said, the promise may have been in wri- ting; but if this is to supply the want of considera- tion) then it should be alleged in the declaration to have been in writing. The plaintiff must not only show that he may possibly have a cause of action, but it is indispensable that a good cause of action be particularly stated. In cases under the statute of frauds, the plaintiff al- ways states a sufficient consideration, and the defendant shows that it is not in writing. Here, it is neither shown iiat there was a good consideration, nor that the contract was in writing. But a written contract, without con- sideration, (unless under seal,) will not support an action. Roberts on Frauds, 8. Rann v. Hughes^ 7 Term Rep. 350. in nolis. 2. The facts in the plea show, that the plaintiff has no cause of action; at least, cannot maintain this action. The plea alleges, that the defendant employed the plaintiff as an attorney to draw those writs, and procure them to be served ; when done, the defendant owed him for it, and owed him on bookj because they were proper articles of book debt charge. When then the defendant settled and satisfied the plaintiff's book account, he settled these articles of book. This writing is a release of the ac- count, and consequently of every article of account. Brace v. Catlin, 1 Day, 275. The statute of limitations of book accounts may be pleaded to any action other than book debt, brought after six years, which are pro- per subjects of book debt charge ; and certainly a release of the whole account must be a release of each article T N SUPREME COURT OF ERRORS. 469 of it. It is, indeed, stated in the declaration, that at June, 1809. the time of the settlement, the plaintiff did not know of this charge by Kent to him. The plaintiff is to state his cause of action, but not anticipate the defence. This TODD. is an averment which cannot be traversed; it is an aver- ment of a negative, and of what must be in the know- ledge of the plaintiff only; an averment, therefore, which he could not make. If this is claimed as a mistake in a settlement, the plaintiff must resort to a special action on the case, and cannot maintain this action. Hart v. Smilh, Kirby, 127. State v. Lawrence, 1 Root, 397. BY THE COURT. The court cannot consider the pro- mise laid in the declaration as dependent on implica- tion of law, but it may be considered as an express, or even a written contract. If the consideration is suffi- cient to support an express written contract, the decla- ration is good. The plaintiff alleges the payment of money, which he became liable to pay on account of the defendant, and which it was the proper debt and duty of the defendant to pay. This is a good consideration for an express promise. Judgment reversed. JC7" The court ordered the cause to be remanded to the superior court, and the rule of damages to be the costs paid in the two courts below, exclusive, however, of officers' fees upon the executions. 470 CASES DETERMINED IN THE June, 1809. JONAH RUTTY and ASA RUTTY againat SIMON TYLER, 2d, and LYMAN SHALER. A grant of land to d. to continue fora /-VT. T/ ^VT r ^ i yard to build MOTION for a new trial. vessels in, by Jl. and his heirs, so long This was an action of trespass, in which both parties see* fit? but V claimed title under the same deed from Josefih Arnold, they cease to d t d l5th o f ^ n y 1735; by which the grantor, for the use it for this purpose, not consideration of love and good will, conveyed to his ihem, S faut for daughter Anna Tyler, and her husband, Nathaniel Tyler, ever to re- a pj ece o f land, containing an acre and three roods, and main to a. and his heirs, then proceeded thus: " I, the said Josefih Arnold, condi- gives A, no more than an tionally give, grant, and convey unto the said Nathaniel he 1 ' re- ?V er near half an acre by the great river side, where maiuder to tf. sa }d Tyler built the brig the summer last past; said is good. yard being set out with stakes and stones at each cor- ner; which said small piece of land shall continue for a yard to build vessels in, by said Nathaniel Tyler, and his heirs, so long as he, or any of them, shall see good; but if said Tyler, or his heirs, shall cease building there- on, then said yard shall neither by him, nor any of them, be sold, but shall be and for ever remain to my son Simon Arnold, and his heirs and assigns: This last piece, with the conditions, to have and to hold to Anna and Nathaniel Tyler, their heirs and assigns for ever, as part of their portion." The plaintiffs claimed the last-mentioned piece of land under Simon Arnold; the defendants, under Nathaniel Tyler. They claimed, that the deed from Josefih Arnold vested an immediate estate in fee-simple, or fee-tail, in Nathaniel Tyler; and that, in either casei the contingencies were too remote and uncertain, and the condition was void. But the court directed the jury, that this was a limitation in law; and that the defend- ants must prove, that the conditions had been complied 4 SUPREME COURT OF ERRORS 471 with, and that they had not, by ceasing to build vessels, June, 1809. forfeited their estate. The defendants, after a verdict RUTT for the plaintiffs, moved for a new trial, for this supposed TV L" ER . misdirection of the court. > x Hosmer and Clark, in support of the motion, con- tended, that a fee vested in Nathaniel Tyler by the grant; and, consequently, that Simon Arnold could take nothing. Cro. Eliz. 360. 379. Poio. on Dev. 239. Co. Lift. 18. Edward Seymor'e case, 10 Co. 95. Shclly's case, 1 Co. 88. Daggett, contra, argued, that a life estate only was given to Nathaniel Tyler; that the word " heirs" does not always convey a fee, but is sometimes used as de- scrifitio persons. BY THE COURT. The deed of Josefih Arnold conveyed nothing in the lands now in dispute to Nathaniel Tyler, but an estate for life; and this, on condition that the grantee, and his heirs, should use the land for a ship-yard. The word " heirs," as used in that part of the deed, is only descriptive of the person for whose use the estate is con- veyed, and cannot enlarge the estate. The remainder, therefore, in fee, to Simon Arnold, was well created; and the rights of the plaintiffs, who claim under Simon, were correctly stated in the charge to the jury. New trial not to be granted. 472 CASES DETERMINED IN THE June, 1809. EZEKIEL WOODFORD against MICAH WEBSTER. If a plaintiff WRIT of error. sues or pleads by conserva- recorcMs Sn Webster brought an action of ejectment against Wood- us'ial form, ford ; and the form of the writ was " to answer unto and judgment in his favour, Micah Webster* ivho sues by David Grant, his conserva- and (or '" The defendant pleaded the general issue, and put tb -?, s t w - rds himself on the country. " And the plaintiff likewise, by will be reji ct- ed as suplus- David Grant, his conserva'or." The verdict was for the plaintiff; and the record of the judgment was in common form, that the plaintiff recover seisin, cc. Woodford now claims, that the writ, pleadings and judgment are in the name of David Grant, and that it does not appear that Webster was in court. Daggett and Dwight, for the plaintiff in error. By this record it appears, that the suit has been pro- secuted by a man not an officer of the court, claiming no authority to prosecute but as conservator of Webster. Our tatutes authorizes the county court to appoint and empower s.ome meet person a conservator to take care of and oversee idiots, distracted and impotent persons, and their estate for their support.(a) David Grant must derive his power as conservator from this statute. But this statute gives no authority to the conservator to sue; in this respect, it leaves the object of it with his common law rights. And upon the principles of the common law, an idiot cannot sue, or defend, or appear by guardian, prochein amy, or attorney, but must always appear in proper person. Fitz. N. B. 27. Co. Litt. 135. 15 Vin. (a) Slat. Conn. tit. 88. C' 1. s. 4 SUPREME COURT OF ERRORS. 473 jfbr. 1 34. A conservator in this state has the same June, 1 809. powers that the committee appointed in England to \V OODFO RD superintend the estate of a lunatic have under the sta- v - tute of 17 Edta. II. 3 Bac. Abr. 367. Yet a suit cannot be maintained in the name of such committee, but must be brought in the name of the lunatic. Cook \. Dan ton, 1 Brownl. 197. S. C. Hob. 215. Darde'a case, Po/ih. 141. JDrury v. Fitch, Hut. 16. Highmore, 118. 123. 11 Ves. jun. 397. The case of Snow v. Antrim, Kirby, 174. if it proves any thing, proves that a conservator cannot sue; for if he were a party, the notice given in that case would not have been sufficient. In Ruth Butler's case, 1 Root) 426. nothing was determined, except that the selectmen could not appoint an overseer to an insane person. And whatever may be the practice in chancery, it cannot regulate {.he process at law. It is said, that the record shows, that the parties ap- peared. But the pleadings are part of the record ; the manner in which they appeared is, therefore, before the court; and if it is an appearance not known to our law, the court must consider it as no afifiearance. And when there is a defect in instituting a suit, or no appearance by the parly in whose favour judgment is rendered, it must, at any time, be set aside. It is also said, that in certain cases, an idiot may ap- pear by guardian, or attorney ; and that by our practice, there is no inquiry as to the authority of a person sign- ing a plea. It is a sufficient answer to the first of these remarks, that in this case, the party neither appeared by guardian, nor attorney; and as to the latter, it ap- plies only to pleas signed by an officer of the court, which David Grant does not claim to be. Again, it is said, that the words which show he did not sue in firofiria firrfnti may be rejected as surplusage. Vor in r- 474 CASES DETERMINED IN THE June, 1809. But if by these words the relation of the parties to the w case is changed, they cannot be treated as mere surplus- v. age. In consequence of them, David Grant could not be a witness in the cause; but his declarations might be given in evidence against the claim of the plaintiff, nd he himself become liable to both. Jamas \. Hatfield, 1 Stra. 548. Turner v. Turner, 2 Stra. 708. Ho/ikins v. A'eale, 2 Stra. 1026. jE. Perkins, for the defendant in error. It does not appear, upon this declaration, that Micah Webster was an idiot, or lunatic; nor can it be neces- sarily inferred from any thing stated. His suing, therefore, by conservator, may be rejected as surplus- age; especially as the record of the judgment is in the usual form, that the parties appeared. But if the fact of his incapacity did appear upon the declaration, he ought to appear by conservator. The statute impliedly gives them this power. It imposes the duties of guardians, and means to give the powers. Indeed, the meaning of the terms guardian and conser- vator are nearly the same ; one is of Saxon, the other of Latin origin. Conservators, like guardians, are appoint- ed to take care of and oversee idiots, Etc. and their estates for their support. To manage the estate, they must have the power of suing and defending; and the diction, of the statute is comprehensive, and the decisions recog- nise this power. In Snow v. Antrim, Kir by, 174. the de- fendant being a lunatic, the court directed a continuance to cite in the conservator. And in Ruth Butler's case, her petition was dismissed because brought by an overseer, when she should have had a conservator. 1 Root, 426. And in chancery, idiots sue by their committee; 1 Harri- son, 763. and aged persons defend by guardian. Hinde, 4. 146. And at law, the rule that idiots must appear in SUPREME COURT OF ERRORS. 475 their own persons, does not extend to all who may have June, 1809. conservators; for he who is not an idiot a nativirate, but WOODFORD becomes non com/ios mentis, shall appear by guardian if v - within age, and by attorney if of full age. Beverly's case, 4 Co. 124. And by our practice, lunatics may appear by attorney. 1 Swift's Syst. 358. There is a difference in the form of declaring in En- gland, and in this state. There, A. B sues, or pleads, by his attorney C. D. Here, the parties plead by per- sons not stated to be their attorneys. The authority is not stated ; but the expression implies an authority; and a person may have this authority, although he calls him- self conservator. But, if there was not an appearance strictly regular, the defendant could take advantage, of it by plea in abatement only; and cannot assign that for error which he could have taken advantage of by plea in abatement. Thus, if a feme covert brings an action in her own name by attorney, and the defendant pleads in bar, he shall never assign the coverture for error. Carth. 124. 2 Bac. Abr. tit. Error. And if judgment be rendered against a person under an incapacity, as an infant, who did not appear in a proper manner as by guardian, he may take advantage of this on error; but if the judg- ment is in his favour, the adverse fiarty cannot procure a reversal upon writ of error for such cause. BY THE COURT. Nothing appears from this record, that Mirah Wt'bxlcr, the plaintiff below, was under any disability whatever: his appearance is recorded in the usu.il form. His stating in the writ, therefore, that he sues by a conservator, may be rejected as surplusage. Judgment affirmed. 476 CASES DETERMINED IN THE June, (809. DAVID BOSTWICK, jun. against WILLIAM LEACH. A contract MOTION for a new trial. ibr the sale of thing's an- nexed to the This was an action of assumfisit. freehold, but which are ca- u!fn f SiX" The declaration stated, that the plaintiff was the out violence, owne r of a grist mill; and the defendant, having it in and by the terms of the contemplation to build one within a short distance, and contract are . . to be separa- being desirous of procuring materials for it, as well as within' 9 the ^ securm g to ^j when built, the custom of such persons statute of as usually went for grinding to the plaintiff's mill, pro- liMutls and perjuries. posed to the plaintiff that he should stop his mill on ^ or j the first day of January then next, and the defendant greement not would purchase the mill-stones, running geers, bolt, to exercise a . . right regard- tackling, tools and utensils, which belonged to and were hcld l asto r use remova l e from the mill, and would pay the plaintiff a mill, or to f or t he same the sum of four hundred dollars. To this carry on a trade in a par- proposition the plaintiff acceded, and had performed Slto '"'the evel 7 thin S to be done on his P art ' statute. The statute The defendant pleaded the general issue. contemplates a trimmer of lands, orspme Qn the trial, the plaintiff offered to prove his case by interest in them. parol evidence. It was agreed, that the plaintiff's mill was what is commonly called a gig mill, standing on a small stream of water; that the mill-stones were laid in the mill for the purpose of grinding in the same manner as mill-stones are usually placed in such mills for that purpose, -viz. by the bed stones being laid upon the floor timber of the mill; that the running geers consisted of a horizontal water-wheel, the shaft of which was upright, which passed through the lower mill-stone for the pur- pose of turning the upper mill-stone; that the lower part of the shaft rested and turned on a pivot at the bottom; SUPREME COURT OF ERRORS. 477 and that the wheel was turned by the water being re- June, 1809. ceived in the usual manner of mill wheels of that de- BOSTTWICK scription. It was also agreed, that the mill-stones, run- v - LEACH: ning geers, &c. were, at the time of the contract, in actual use for the purpose of grinding, and have never since been removed, but might be removed without doing violence to the mill-house, and without even so much as the drawing of a nail. It was further admitted that the plaintiff stopped his mill on the first day of January, according to his agreement, and the next day gave notice thereof to the defendant. The defendant objected to the admission of the evi- dence offered, on the ground that the contract set forth in the declaration, and offered to be proved, was a con- tract for the sale of lands, tenements, or hereditaments, or some interest in or concerning them; and not being in writing, was, therefore, within the statute of frauds and perjuries. But the court overruled the objection, and admitted the evidence. A verdict being found for the plaintiff, the defendant moved for a new trial. JV. Smith and Hatch, in support of the motion. The general question in this case is, whether the contract sa forth in the plaintiff's declaration can be proved by parol ? We object, that it is such a one as is required, by the statute of frauds and perjuries, to be in writing. The clause of the statute relied on is that which relates to the u gale of lands " Istc. 1. The first inquiry is, whether any of the several articles of propi rty, at the date of the agreement, were of such a i a'urc as to be comprehended by the words ii'the statute? On this point it is hardly possible to 478 CASES DETERMINED IN THE Jane, 1809. conceive that a doubt should have been entertained. As BOSTWICK * a P* 11 ^ ^ tnem > tne y wer e annexed to the freehold, and would pass by a deed conveying the land. 2 Jil. Com. 17, 18. They would descend to the heir, and not to the personal representative, and might be set off to a widow as dower. Co. Litt. 32. a. 2 Bl. Com. 159. They are the subject matt, r of waste. In the case of The City of London v. Greyme, Cro. Jac. 182. it was de- termined, that it is waste to convert a corn-mill into a fulling-mill, although the conversion be for the lessor's ad- vantage. At the date of the agreement, they would not have passed by a will, unless it had been duly exe- cuted to pass lands; nor could they have been the sub- ject matter of felony; or have been taken and sold, on execution, as personal property. Indeed, a case can hardly be imagined, in which things of this kind, an- nexed to the freehold, are not treated, and considered as a part of the land. It is a correct rule, that where legal phrases occur in a statute, they are to be consider- ed according to their acceptation at common law. If this rule be received, and applied in the construction of the statute of frauds and perjuries, it must terminate this part of our inquiries. But we shall be told, that the mill-stones, bolt, and running geers, though annexed to the freehold, might have been dissevered from it; and thus converted into personal chattels; that they were sold with a view to a severance, and, therefore, that the sale is not within the statute. These positions require examination. A contract derives its obligation from the assent of the parties legally expressed or evidenced; and, of course, must be obligatory, if at all> at the time it is made. It would seem, therefore, as if it must have respect to the nature and condition of the property which is the subject matter of it at that time; and that, if not binding then, I SUPREME COURT OF ERRORS. 479 it can never become so by reason of any change in the June, 1809. property. Bos7w"icK V. LEACH. The only case, which can be found, to support a con- trary doctrine is that of an anonymous case in 1 Ld. Raym. 182. in which it is said to have been ruled, that a sale of standing timber is not within the statute. This, however, was merely the decision of a single judge (Tr< by, Ch. J.) at nisi firius, and is very loosely re- ported. It would therefore hardly be entitled to much respect, as an authority, even if it stood uncontradicted. But it has been directly overruled. The case of Crosby v. Wudnivorth, 6 East, 602. where the same question came to be very fully considered, was solemnly decided the other way, This determination is justly treated by several late writers, as settling the point in debate. 1 C'omyn on Cont. 76, 77. Prake's Ev. 214. Even Ro- berts, who in the body of his treatise on the English statute intimated an opinion in favour of the rule as laid down by Chief Justice Treby, has, since the deci- sion in Crosby v. Wadnivorth, retracted that opinion, and acknowledged that it was ventured, at first, on a slender foundation, [ftob. StaC. Frauds, p 15. of Adver- tisement; contra, p. 126.] The only difference between these two cases is, that in the former the contract was for the sale of standing timber; in the latter, of stand- ing grass. The question in each was the same, and the same as that in the principal case: for it is agreed to make no diflVrence, if the chattel be annexed to the freehold, whether it be the growth of the soil, as grass and timber trees- or the product of skill and labour, as a corn-mill and a mansion-house. As ihc law, upon this point, has been so recently, and so authoritatively set- tled in Great Britain, it should not l>r. ixpii'cd iliat this court will be misled by the exploded error of Chief Justice 1'rrby. 480 CASES DETERMINED IN THE June, 1809. It may be added, that if any of the several articles. BOST-WICK. which were the subject matters of this agreement, are , v comprehended by the words of the statute; the agree- ment should have been in writing. For it is well settled, that if part of an entire contract be within the statute, it cannot be proved by parol. The case of Chater v. Beckett is conclusive on this point. [7 Term Rep,. 201. Sugden 64. Roberts on Frauds, p. 1 1 1 .J It may be claimed, in the next place, that this agree- ment is excepted from the operation of the statute, by reason of a part execution. On this point, it is under- stood, that the opinion of the judges at the circuit prin- cipally turned. [SMITH, J. That circumstance is perfectly immaterial here. Decisions upon questions of evidence, at the cir- cuits, are necessarily made with so much haste, and so little consideration, that they can hardly be viewed as authorities in any case/] It is not mentioned here, with a view to repel the au- thority of the decision ; but simply to explain the reason why this point is dwelt on by us. This general principle has been settled and applied in cases of this nature, that statutes, made to prevent fraud, should not be so construed as to encourage and protect it. But this is the only ground on which parol agree- ments performed, or in part performed, have been holden to be saved from the operation of the statute. A writer of much respectability does, indeed, seem to recognise other exceptions. He seems to suppose, that those cases are excepted, where the part performance is such as to furnish evidence of the agreement; and this on the broad principle, that such perf-vmance removes the danger of perjury. But this doctrine is exploded SUPREME COURT OF ERRORS. 481 by the whole current of opinions and authorities of a June, 1809 later date. Per Lord Alvanley, in Foster v. Hale, 3 BOS i WICK Ves. jun. 713.; per Master of the Rolls, in Buckmaster V. Harrufi, 7 Fes. jun. 341. Rob. on Scat, of Frauds, p. 134. 138. And even the cases which this writer puts by way of illustration, do, by no means, authorize his con- clusion. PQIV. on Cone. 292, 293. 309. From this -principle, thus limited, it results, that counts will interfere to enforce a parol agreement, on the ground of part execution, in those cases only where some act is done in pursuance of such agreement, which is advantageous to the party claiming to rescind, or disadvantageous to the party performing. But it is to be noted, that in each case the act must be performed with the assent, express or implied, of the party, against whom a remedy is sought ; otherwise, no f> aud can be imputed to him, except such a fraud as every man may be supposed to practise, who denies his contract. But it is only the fraud, which seeks, by indirect means, to obtain the benefits of a promise, and yet denies its obligation, which the doctrine of part performance re- spects. If extended farther than this, the doctrine would, in effect, be equivalent to a, repeal of the statute. These distinctions, it is believed, are clearly traced, and well established, in the books. Thus it is holden, that the payment of money is a sufficient part performance; but not if it be paid as earnest. It must be a part of the purchase-money; and, as Lord Long/thorough once held, a material fiurt. Main v. M< thnrn< 4 Vr*. jun. It should be added, that thK rulr itself has recently been denied by Lord Redes- dale. Ctinan v. Covke, \ Sch. -Jf L>f. 22. So, a delivery and receiving of possession under a VOL. III. 3 Q 482 CASES DETERMINED IN THE June, tsos. parol agreement, is in many cases a sufficient part exe- B STWICK c ut i n > DUt tne bare act f homing over by the tenant v - has not, it seems, been so considered ; [3 Ves. jun. 378. TEACH ~ per Lord Chancellor, in Wills v. Stradling;~\ nor has continuance in possession by lessee, in case of an agree- ment, by parol, to take a lease for a term of years cer- tain. [1 Potv. on Cont. 309.] It is said, too, that acts merely preparatory or ancilla- ry to a contract, are not a part performance within the rule. Roberts, 139, 140. Acts of ownership exercised, improvements made, and expenses incurred, under an encouragement express or implied, are holden sufficient to take an agreement out of the statute ; but not, it would seem, if these acts are done merely upon the faith of the agreement, and not in pursuance of any stipulation in it. Roberts, 134> 135. These rules, with their qualifications, go to show the extent of the doctrine in view; and warrant the inference, that wherever the acts relied on as a part execution are done upon the bare faith of a parol agreement, the case comes within the statute. In further illustration of this point, it may be remark- ed, that in all cases of such .agreements, there may be a countermand and refusal, on either part, and perform- ance afterwards, on the other, does not avail. 1 Cemyn on Cone. 78, 79. This point was expressly determined in the case of Crosby v. Wadsnuorth. The case of Lamas v. Bayly, 2 Vern. 627. goes the full length of establishing the proposition for which we contend. There the performance was without the as- sent of the party claiming to rescind ; and the case was adjudged to be within the statute. It had this other SUPREME COURT OF ERRORS. 435 feature, in which it strongly resembles the case at bar, j un e, 1809. that the performance relied on was a mere act of for- BOSTWICE. bearance. This case is recognised as sound law, by a v. late writer, of considerable reputation, who asserts it as a general rule, that " merely abstaining from doing an act" is nota sufficient part execution. JVcwlancl on Cont. 195, 196. In the principal case, the facts connected with the point in debate are these : The agreement was to hav. been performed on the first day of January next after it was entered into. On that day, as the plaintiff avers, he stopped his mill; and, on the next day, gave notice to the defendant, who thereupon refused performance. According to a familiar rule of construction, this aver- ment would be fully satisfied, if we should admit, that a mere point of time intervened between the cessation to use by the plaintiff, and the refusal by the defendant. Besides, it does not appear, that the forbearance to use, for any space of time, was a thing known, or assented to, by the defendant; but it does appear, that at the earliest period at which the luw required his dissent to be ex- pressed, he refused to ratify the contract. Prior to the notice and refusal, every act of performance must have been done on the faith of the agreement; after that, they must have been done not only without the defendant's assent, but with full notice of his dissent to their being done. A performance, under such circumstances, surely cannot be availing. Men was to have argued against the motion ; but, owing to a sudden indisposition, was not in court when ;he cause came on. Bacon submitted a few remarks in support of thcsr propositions : 1. That this action was founded upon a promise of the defendant to pay 400 dollars, made upon a sufficient and 484 CASES DETERMINED IN, See. June, 1809. unexceptionable consideration, -viz. the plaintiff's stop- g ~ ping n ' s niill. If. this had been the only consideration, v- there could not have been a doubt in the case. I* the party less to be made liable on the same promise, be- cause he was, in point of fact, compensated by other advantages, which the law will not take notice of. 2. That the articles, which the defendant contracted for, were not so annexed to the freehold, but that they might be sold separately as personal property. They were, in- deed, contemplated by the parties as severed at the time of the contract. 1 Ld. Raym. 182. Dull. N. P. 282. Pouleer v. Killingbeck, 1 Bos. & Pull. 398. BY THE COURT. The contract was not embraced by the statute of frauds and perjuries. When there is a sale of property, which would pass by a deed of land, as such, without any other description, if it can be separated from the freehold, and by the contract is to be separated, such contract is not within the statute. Such are the contracts for the purchase of gravel, stones, timber trees, and the boards and brick oj houses to be pulled down and carried away. The agreement not to use his mill, after a certain day, is not within the statute <;f frauds and perjuries; for this statute contemplates only a transfer ot lands, or some interest in them. In this case, there was no trans- fer of any right, but only an agreement not to exercise a right. He parts with no interest to any person. There is no conveyance of the stream, or indeed of any interest whatever. Thus, it differs nothing in principle from the case where a man has carried on a trade in his house, or shop, and agrees, for a valuable consideration, not to carry on his business at that particular stand : and yet such contract has never been held to be within the statute. New trial not to be granted. A SUPPLEMENT, CONTAINING A FEW DECISIONS OF THE SUPERIOR COURT ON THE CIRCUIT. j\"otea of these cases were tuken^ because they were deemed of some imfiortance at the time ; and they are now jiub- lished) because they have since been often cited) but have seldom been stated fully and correctly. SIMEON PEASE against GIDEON BURT and others. November, 18i>C. THIS was an action of false imprisonment. Thc right of bail to arrest The declaration charged that the defendants forcibly t{,"! pe^of arrested the plaintiff in Enficld, in Connecticut, and car- his principal, is transitory, ried him to Northam/iton, in Massachusetts, and there and m;,y be - ... . exercised confined him in prison. wherever the latter may be The defendants pleaded not guilty; and rested their' 0111 " 1 ' *** defence on two grounds: First, that they did not com- Dutifthehr.il, in arresting nut the acts charged; and, secondly, that they were jus- |,, s principal, tified in so doing, as they acted under the direction of ^^ a "^.^ the plaintiff's bail, and took the plaintiff for the purpose t" is nuces- SHI-) tor ihc of surrendering him to the officer in A"ort/iaifito>i, who pm-p<> s -, he had the execution; and that no more force was used than ,",'," Jl^. 1 '"^ was necessary for that purpose. pn-.oiuu.nt. Thc arrest and imprisonment were clearly proved; and ' ground of defence was principally relied on. 486 A SUPPLEMENT. Nov. 1806. It appeared in evidence, that one M' Gregory had been PEASE ^ a ^ ^ or tne P^intiff in a suit before the court of com- _ v - mon pleas in the county of Hamfahire, in Massachusetts; BURT. that judgment had been rendered against the plaiutifl', execution taken out, and put into the hands of an offi- cer for collection ; that the plaintiff had absconded into Connecticut; that M^Gregory had pursued him thither; and that, by his direction, the defendants had arrested him there, carried him back, and surrendered him to the officer having the execution. jV. Terry and H. Terry contended that the plaintiff was entitled to a verdict, as the facts stated were proved, and no sufficient defence had been made out. They ad- mitted the right of the bail to take his principal wherever he could find him within the jurisdiction; but insisted, that this right could not be extended further. They cited Stoyel's case, before the circuit court of the United States, in which Judge Paterson presided, as having settled the point in their favour. Goodrich and Bradley, for the defendants. The bail, by virtue of the relation between him and his principal, has a right to the custody of the latter, and may, at any time, confine him. (a) If the principal be taken away, by impressment, into the naval service; or by enlisting as a soldier; or even by criminal process; the bail may have the aid of a hd- beas corpus to bring him in to be surrendered. () If then, ^Gregory had been bail for the plaintiff in the state of Connecticut, and had taken him in the man- (a) 3 Bla. Com. 290. 2 Hawfc. P. C. c. 15. s. 3. Jlnon.dMod. 231. (b) Bail of Boise and Sellers, 1 Stra. 641. Bail of Peter Vergen, 2 Stra. 1217. Bondv. Isaac, I Burr. 33'J. Hward v. Lyon, 1 Root, 107. 4 A SUPPLEMENT. 487 ner he did for the purpose of surrendering him; or if, NOV. jgog. as the case stands, he had taken the plaintiff in the man- p~ EASB ner he did, within the jurisdiction of Massachusetts, and v. had not come into Connecticut for him ; all would have been well. But we contend, that if the bail had a right to take his principal in Massachusetts, he had the same right in Connecticut. It is said, that process is local, and necessarily con- fined to the jurisdiction, under the authority of which it issues. This we admit; but it does not follow, that the right of the bail to control the person of his prin- cipal, though such right may have derived its existence from process, is subject to the same restrictions. The rights of bail are twofold : First, that of control- ling the person of the principal, for the purpose of sur- rendering him; and, secondly, in case the bail does not surrender him, and pays the debt, that of an indemnity from the principal. The law imposes correspondent obligations on the principal, and supposes, that he ac- quiesces therein. These rights are neither of them local, but transitory. In a suit brought by bail in a different jurisdiction, against his principal, upon the implied promise of in- demnity, would it be any defence to say that the origi- nal process, in which you were bail, would not extend here ? But upon principles of reason and law, it would be as good an answer in that case, as it is to the claim of the bail to control and confine the person of the prin- cipal in a foreign jurisdiction, for the purpose of sur- rendering him. There is a substantial distinction with respect to rights. Some are local ; and some are transitory. 488 A SUPPLEMENT. Nov 1806. All crimes must be tried within the jurisdiction of the PEASE. government, against the authority of which they were committed. The right of real property is local, and must be decided in that jurisdiction wherein it is situated; be- cause process to give possession cannot come from a foreign jurisdiction. But all rights of a personal nature are transitory. A right to personal property; a right to a personal action, whether founded on a contract, or on tort; or a right in one to control the person of another, acquired under the laws of one government, extend to, and may be exercised, and enforced in, any other civilized country, where the parties happen to be. Goods pur- chased in London are the property of the purchaser when transported to Neiv-York. A contract made in JEurofie, or in India, may be enforced in this country. Trover and trespass will lie here for injuries done to things personal in any part of the world.(a) If a right to personal property, and a right of action, acquired under the laws of one country, exist, and may be enforced, in another; then a right acquired by one to control the person of another is likewise transitory; For these cases are strictly analogous in this respect, and depend upon the same principles. i An enumeration of the cases, in which one may have a right to control the person of another, will put this question beyond a doubt. A parent, guardian, and master, Lave this right; and upon removal from one state, or country, to another, would they not respectively continue to have the right to control and govern their children, wards, or apprentices? Poor children may be bound out by the civil authority and selectmen of a town ; poor debtors may be assigned in service, under certain cir- (o) Rafael v. Ffrelst, 2 Bin. Jiep. 1055. Mtistgn v. Fa&rigas, Coivp. 170182. A SUPPLEMENT. 489 cumstances, to pay their debts; criminals also may be Nov. 1 806. - assigned in service, in certain cases, by the court before WELLS which the trial is had, to pay the costs of prosecution ; , v - TUYON. and criminals confined in Newgate prison, after their term of confinement is expired, may, if they cannot otherwise pay the cost, be assigned for that purpose. Suppose any of these persons should escape from their masters, and go into the state of Massachusetts; might they not be followed, and reclaimed ? Even a slave, having fled from his master, in a country where slavery is tolerated, into another where it is by law prohibited to its own citizens, may be taken up, and carried back by the mere authority of the master.(a) THE COURT, in summing up to the jury, avoided a direct decision of the point of law raised in this case, though they intimated an opinion in favour of the defend- ants.^) But as there was some evidence that the de- fendants, in making the arrest, w'ere guilty of unneces- sary violence, the court directed the jury, if they be- lieved that was the case, to find for the plaintiff; which they accordingly did. (a) 1 Bla. Com- 451 (A) The court, at this time, had not adopted the practice of giving, in their charge to the jury, an explicit opinion on all the points of law in the case. SAMUEL WELLS et a/, against JOSEPH TRYON et al. Nov. 1806. THIS was an action of ejectment The defendants A copy O f a . . certificate of pleaded) severally, no wrong or disaeinn; and issue was sur vey, signed closed to the jury. A - ***"?* ft or, and C. D. and E. F. Committee, and certified to be a true copy by G. 11. Register* is not ad- missible in cridrnfo. in nn nation of ejectment, to prove the plaintiff's litlr. VOF.. m. 3 R 490 A SUPPLEMENT. Nov. 1806. Brace, for the plaintiffs, to prove their title, offered ~~~ in evidence a writing, purporting to be a copy of a cer- v. tificate of survey, signed " Thomas Wells* Surveyor" and " Thomas Hollister *nd Jonathan Hale, Committee.'* It was certified to be a true copy of record by " Josiah Hale, Register." E. Perkins and Z. H. Smith, for the defendants, ob- jected to the admission of this paper in evidence to the jury. The statute of 1723(a) authorized the proprie* tors of common or undivided lands to hold meetings, to choose their clerk, and to keep records. But the pa- per offered does not appear to be a copy of any record of the proprietors, nor to be certified by their clerk. The counsel for the plaintiffs remarked, in reply, that there is noiu no such body of men as the " proprietors of common and undivided lands." They may have trans- ferred their rights to the towns ; and if so, the town re- gistrar is the proper officer to certify the copy. BY THE COURT. The certificate offered is a proper subject of the proprietors. The town could not make the survey. But it does not appear by whom the survey was made, or recorded; or by a registrar of what body the copy was certified. It is not proper to send a paper to the jury under so much uncertainty. It is, therefore, inadmissible. (a) Entitled " An act for the better establishing and confirmation of the titles of land anciently obtained in townships, according to tlm man- ner or custom heretofore used; and for preventing contentions about the same." Tit. 7. c. 10. A SUPPLEMENT. 491 Feb. 1807. THE PRESIDENT, DIHECTORS, and COMPANY of HART- FORD BANK against WILLIAM HART. THE plaintiffs declared against the defendant as the endorser of a promissory note executed by Joseph Hart. The general issue was pleaded, and closed to the jury. The note being produced on the trial, it purported to be made and endorsed as stated in the declaration. The defence, set up by the defendant, was, that the endorse- ment was a forgery. The plaintiffs admitted that it was not the hand-writing of the defendant, but contended, that he had virtually authorized it, and made it his own. Daggctt, Perkins, Moaely and Root, for the plaintiffs. Ingeraoll, Goodrich, R. Grisioold and N. Terry, for the defendant. After the jury were called, Ingersoll objected to 5. O. A juror, who as a juror, on the ground that he had married the sister [',^! si of W. W. who was plaintiff in an action against the prc- P arl ) '" * . , _ i.olher case sent defendant, beiore this court, and to be tried this di'iu-miinn on term, depending upon the same principles as this case. tipies^'aV'uie The juror's wife, at the time of the trial, was dead. " c " ui:il excused Irona silling though Daggett insisted that this was not a sufficient ground then dead. of challenge. Besides, the connection, which once sub- sisted, is now dissolved.(a) SWIFT, J. said it had never been determined in this () Affinity, or alliance by marriage, is not, by the Ertflith law, a -rnimil of pi-iiii i|i:l challenge, Unless it continue, or there be issue living. Co. Lift. 157. a. and note 278. by Hurifruve. Momuon v. H'ftt, 1 Lcin. 88. 492 A SUPPLEMENT. FebMSor. state how far consanguinity, or connection by marriage, THE PRESI- would disqualify a juror.(a) The courts have decided, DENT, &C. , v however, that the cousin of a party cannot sit in the case. HART. THE COURT excused the juror.(A) Patting a let- ^ n t ^ ie tr ^ a '' tne counsel for the plaintiffs stated, that ter into the Josefih Hart had made use of the defendant's name on post-ofnce is a fact, from other notes which had been discounted at the bank, and ry may infer, tnat notice of this had been given to the defendant. To that the per- establish the fact of notice, they offered to prove, by the son to whom ' it was addres- cashier, that he had put letters, addressed to the defend- secl had notice . . of its con tents. ant containing notice, into the post-office. Goodrich objected to the evidence offered. The put- ting a package into the post-office is no evidence that it was delivered. Payment could not be proved, by pro- ving that the money was put into the post-office. A de- mand of property could not be proved in this way. That in the case of bills of exchange and promissory notes, the putting a letter in the post-office is sufficient, not because that proves the notice, but because the par- ty in doing that has discharged his duty. If it should appear that the letter had miscarried, it would not affect him.(c) It would be dangerous to establish the doctrine, that the putting a letter into the post-office is evidence of notice, because the letter may miscarry, and ii would be impossible for the party to whom it was sent to prove that he did not receive it. (a) By the English law, a juror who is of kin to either party within the ninth degree, may be challenged propter aff'ectum. 3 Bla. Com. SfiS. Tidd's Prac. 309. (V) In England, and in some of the United States, challenges to the favour are decided by triors. 3 hla. Com. 363. Co. Litt. 158. Trial of Smith and Ogden, 245, 246. in New-York. But in this state, all challenges of iurors are decided by the eourt. 2 Siviffs Syst. 233. (c) Chitty, 95. A SUPPLEMENT. 493 Daggett, contra, insisted, that the objections to the Feb. isor. testimony offered went rather to its weight than to its THE FRESI- comfietency. Such is the establishment of the mails, DENT, &o. that the putting a letter into the post-office affords a fair HART presumption, that it was received, and read, by the per- son to whom it was directed. If this were not evidence, it would, in all cases, be necessary to have a person at the. office of delivery, capable of identifying the letter, to prove its reception. It is not according to the course of business to make payments, in money or goods, through the mail, without special directions. But in- formation is regularly communicated in this way. THE COURT admitted the testimony. SWIFT, Pr. J. said it was perfectly clear to his mind, that the putting a letter into the post-office is $fact from which the jury may infer notice. (a) Ingersoll afterwards offered to prove that the names of 1 ' 1 an action by 1 the endorsee other persons than the defendant had been forged, by of a promisso- Josejih Hart, on paper, which had been lodged at the the^efemla'nt bank, and had lain over; and that notices had been put as endorser, on the ground into the post-office directed to them. that though the endorse- ment was a Daggett Objected. forgery, yet he * had made it his own; and THE COURT ruled out the evidence. They said the proved, that point had been before determined. on other notes discounted at the bank of which lie \I:K\ had notice, lie cannot be permitted lo prove, thai the names <>( other persons had becu forged under similar circumstances, of which they had had notice. In the further progress of the trial, Ingersoll offered The confe- to prove, that the president and directors knew, when viduni mem- bers of a cor- Co) Vide Parker v. Gordon, 7 Eatt, 385. qu. con. poraiion ag- gregate, a par- ty to the uit, which were not made in the exorciie of anT corporate duty, cannot be received in evident. 494 A SUPPLEMENT. Feb. ISO", they discounted the note, that the endorsement was THE PRESI- f r g ec ^' ar >d to prove this, by the confessions of the presi- DENT, fcc. dent and directors. V. HART. Daggett objected to this evidence. Who is the party ? An aggregate corporation; the creature of the law. The claim is, that individuals of this corporation may confess away its rights. A corporation can regularly do no .act without writing.(a) The confessions of a judge of pro- bate, in a suit on the bond, have been rejected, because he speaks only by his records. Are the confessions of a member of an incorporated town to be admitted ? Ingersoll and Terry, contra, admitted, that an indivi- dual of a corporation can do no corporate act. But the persons, whose confessions are offered, were the agents of the corporation; and these confessions were respecting acts ivithin their agency. There can be no question but that such acts are binding upon the corpo- ration.^) If it could be proved that the president and directors discounted this paper, knowing it to be forged^ by disinterested witnesses, or in any other way than by a note of the corporation, it can be proved by the con- fessions of those who did the business with such know- ledge.^) Suppose the agent of a town, confesses notice as to a pauper ; may not such confession, in a suit against the town, be proved ? Could not the payment of money to a town be proved by a receipt from the selectmen ? If their receipt would be evidence, would not their ac- (a) 4 Com. Dig. lit. Franchises, F. 13. Harg. Co. Litt. 94. b. note 99. I Bla. Com. 475. 6 Vin. Mr. 268. 287, 288. Kyd on Corp. 1. 256 268.449,450. (b) Viile Charter of Hartford Bank, par. 10. Stat. p. 41. (c) With regard to the question, how far the admissions of an agent may be received against his principal, see Pe tike's Ev. 18. 2d 'Loud. edit, and the cases of Biggs v. jMwrence, 3 Term Rep. 454. and Bauermun v. Radenius, 7 Term Hep. 668. there cited. A SUPPLEMENT. 495 CAPEX . knowledgment be ? The directors are precisely in the Feb. 1807. same situation as selectmen, with regard to the business which belongs to them. The agents, in this case, could not be witnesses; because they are a party. Daggett, in reply. This is not the case of notice given to an agent, which shall bind his principal. The president is the agent for certain purposes mentioned in the charter; but he is not agent to confess. Because a man cannot be a witness, it is by no means a sequitur that his confessions may be proved. BY THE COURT. It is clear, that the doings of a corporation can be known only by its corporate acts. The confessions ..of individual members cannot be re- ceived. Though the directors have certain powers, re- sulting from their act of incorporation, and are, for cer- tain purposes, agents ; and though their acts, when in strict relation to thdr agency, are binding on the corpo- ration ; yet, as to the matters attempted to be proved, it does not appear that they were agents. . The evidence is, therefore, inadmissible.(a) (a) Tide Head et al. v. Pro-vidence Insurance Company, 2 Crancfi, 127. lieutty v. Marine Insurance Company, 2 Johns- 114. NATHANIEL TERRY against JOSIAH CAPEN. Feb. 1807. TERRY, before the court, called upon Ed-ward*, Under the counsel for the defendant, to say, whether he had a de- fence in this case. counel to say whether he it i, sufficient f.,r the counsel to MT , that hit client has in.tructH him he expects th case will be tried, unless previously stiller!. 496 A SUPPLEMENT. Feb. 1807. Edwards said the defendant had instructed him to make a defence. GOODWIN. Terry insisted that the answer was insufficient; that the rule required him to say whether he believed his cli- ent had a defence, and moved that the defendant might be called. BRAINERD, J. said he would ask Edwards whether he expected the case would be tried ? Edwards answered, yes; unless certain propositions for a settlement should be acceded to. THE COURT refused to call the defendant, SWIFT, Per. J. remarking, that he never liked the rule, and would not extend it beyond its strict application. DAVID BURNHAM against LEVI GOODWIN and others. A material a- ON a petition to redeem mortgaged lands, Edwards, roendment al- lowed, in a for the petitioner, moved a material amendment to the Emwithout bil1 ' The onl y q uestion was as to the payment of costs. eosts. THE COURT allowed the amendment without costs, on the ground, that the petitioner would be obliged to pay costs in either event of the suit. If the prayer of his petition should be granted, he must pay costs before he can redeem; if denied, costs will be taxed against him. A SUPPLEMENT. 497 Feb. 1807. HKZKKU.H HUNTINGTON, Esq. et al. against EBENEZER SHELDON et al. THE declaration stated facts, from which the law In what cases of amendment would, perhaps, imply a promise ; but no promise was C08 t8 must be alleged. P id - Huntington moved to amend the declaration by sta- ting a promise. The amendment being allowed, Edwards, for the defendants, claimed costs. Huntington inquired, if the court required costs to be paid in all cases of amendment ? SWIFT, Pr. J. said the court required costs to be paid in almost all cases of amendment of the declaration, ex- cept for the increase of damages, for the correction of a clerical mistake, or for something of a like nature. TRUMBULL, J. said where a declaration, which would be demurrable, is amended so as to be good, or where the amendment would change the defendant's defence, costs must be paid. BY THE COURT. Let the amendment be made, upon payment of costs. VOL. Ilfc 3 S 498 A SUPPLEMENT. Feb. 180r. RICHARD WILLIAMS against ERASTUS LEWIS. ^constructive THIS was an action of trespass for a load of tin ware. possession in the plaintiff is sufficient to Qn the trial to the jury, it appeared, that the plaintiff rarintovTreg na ^ delivered the property, at Hartford, to one Warner, P ass - a tin pedlar, with an understanding between them, that the latter was to carry it to Farmington, there take in some other ware, and return to Hartford. The terms on which he was to take the load were then to be agreed upon. Warner neglected to go to Farmington, but went to a different place, and disposed of the property to the defendant. There was some evidence that the defend- ant had practised unfair means to obtain it. Goodrich and Edwards, for the plaintiff. Moseley and Perkins, for the defendant. For the defendant it was contended, that the plaintiff could not maintain this action, as he was confessedly not in possession of the property at the time it was taken by the defendant. (a) SWIFT, Pr. J. in summing up, said, the question of fact in this case was, whether there had been a sale of the property by the plaintiff to Warner, before it was dis- posed of to the defendant. If the plaintiff did not sell the property to Warner, the possession of Warner is to be considered as the possession of the plaintiff, and is sufficient to enable him to maintain the action. (A) The jury found a verdict for the plaintiff, which was accepted. (a) Esp. Dig. 383. Dub. edit. 1794. Wardv. JUacauley, 4 TemJtep. 489. (5) Vide Smith v. Milles, 1 Term Jiep. 475. A SUPPLEMENT. 499 Feb. 1807. JOSEPH LYNDE against JAMES JUDD. ACTION of assumftsit. An attorney cannot be _ . _ , compelled to On trial to the jury, JDimght, for the defendant, ottered produce Mr. Ingersoli as a witness to prove a paper in his hands. was left with him by a cli- Mr Ingersoll himself objected to producing the paper, ent in'another It appeared that the paper had been delivered to him, as counsel in another case by a client, with instructions not to make use of it in court. BY THE COURT. Mr. Ingersoll cannot be compelled to exhibit it. D-aright then offered a copy. Where an o- riginal paper Edwards, contra, objected, on the ground, that it was "^ the hands of an attorney evidence of an inferior nature. under such circumstances that he cannot be compelled BY THE COURT. The copy, after being proved, may to produce it w- rMr i >n evidence, the party may prove and ex- hibit a copy. The witness to prove the copy said, that the defend- A copy may ant read a paper as the original, and he, the witness, comp^rilfg b Jt looked at the copy, and it agreed with the paper read to ^ lth . tlie "" ginal, as react him. by another person. Edwards objected to the sufficiency of the proof, U 2j* re ' t 'jj 1 j s " because it did not show that the paper read by the de- ought not to be some evi- fendant was in fact the original; or, if it was, that the dencc that the defendant read it correctly. f h "f r jgjjj . was in fuel Mich, 500 A SUPPLEMENT. Feb. 1807. ' BY THE COURT. This is the usual mode of coth- B^ND paring papers. The proof is sufficient to entitle the par- . v - ty to read the copy.(a) KlBBE. (a) Vide M'Neil v.Pc chard, 1 Esp. Cos. 263-. SOLOMON BOND against ELISHA KIBBE and SAMUEL ALLEN. Before cau- THIS was an action of ejectment. tion can be entered with clerk 'iTon Kibbe, one of the defendants, died pending the suit, land conveyed an( j before this term. On the trial, Allen, the surviving bv deed not . aeknowiedg- defendant, admitted |nmself to be in possession ; and the Se Vhave' only question was that of title. required the grantor, and the grantor Daggett and H. Terry, for the plaintiff. must have re- ' fused to ac- knowledge the Terry and S. Terry, for the defendant. deed. Caution having been aSsuchde' The plaintiff claimed under JKiMe, the deceased de- mandand re- fendant; and, to prove title, offered in evidence a deed fusal, thedeed though unac- from Kibbe, dated March 24, 1804, but which was not nor recorded. in evidence in an action of ejectment. The defendants counsel objected to the admission of this instrument in evidence, on the ground that it con- veyed no title. The plaintiff's counsel then produced a copy of a \ caveat from the town records, duly certified by the town clerk, dated April 4, 1804, by which the plaintiff cau- tioned all persons not to purchase the land in question, as he claimed it by virtue of a deed from Kibbe, not ac- knowledged. This caveat being read to the court, 5 A SUPPLEMENT. The counsel for the defendant still objected to this Feb. 1807. deed's going to the jury, on the following grounds: BOND F. KlBBE. 1. That in order to render the caution effective, Kibbe, the grantor, must, before such caution was entered, have been required, by Bond, the grantee, to acknowledge the deed, and the grantor must have refused to acknowledge it. But no such demand and refusal having been proved, the deed rests on no better ground, as evidence of title, than it would, if no caveat had been entered. 2. If such demand and refusal had been proved, still the deed would not be evidence in an action of ejectment. The object of caution is merely to lay a foundation for equitable process, to compel the grantor or his heirs, to acknowledge the deed. The decree of the court or- dering such acknowledgment to be made, being upon the town records, where the land lies, the title of the grantee would be completed, though the grantor should persist in refusing to acknowledge' the deed., 3. If the deed, with the aid of caution duly entered, may be used as evidence of title in actions at law, yet it can be so used in actions between the grantor and grantee only; and therefore cannot be given in evidence, in this case, against the defendant, Allen, who was not a party to the deed. BT THK COURT. The statute, which provides that caution may be entered, authorizes such proceeding only in cases where the grantor has been required, by the grantee, to acknowledge the deed, and the grantor has refuted. In order, therefore, that caution may have any effect upon this deed, such demand and refusal must first be proved. That being done, the "caution shall secure the interest of the grantee until a legal trial hath 502 A SUPPLEMENT. Feb. 1807. passed unto a final issue according to law."() BOND legal trial here spoken of must mean a trial at law upon v ' the title; and therefore the deed may go to the jury in an action of ejectment. As to the question whether the deed may be given in evidence in this action, against jillen, the court are of opinion, that the caution having been duly entered, the interesftn the grantee is secured; and consequently, the deed is good against a stranger. The counsel for the plaintiff then offered to prove to the court, that Kibbe^ the grantor, had said, that he would not acknowledge the deed. To this evidence the defendants' counsel objected j because there must be an actual refusal upon demand made. Kibbe might have altered his determination, upon being required by Bond to acknowledge the deed. BY THE COURT. The evidence offered is inadmissi- ble. There must be proof that Bond required Kibbe to acknowledge the deed, and that Kibbe^ upon being so re- quired, refused to acknowledge it. No such proof being offered, the court ordered the case to be called; and the plaintiff thereupon was Nonsuited. (a) Fide " An act concerning (.own clerk's office and duty,"/ar. 4. p. 417. edit 1796. WILLIAM BRADLEY against JOHN CLARK. TH I S w as a writ of error from the judgment of a the issue, and justice. The original action was book debt. The gene- en which exe- J outkm was granted, will not l>e reversed, because it did not say, that the party thould recover, and that execution should issue. A SUPPLEMENT. 503 ral issue was pleaded, and found for the plaintiff. Judg- Feb. isw. ment was entered up in these words: RATHBONI V. Rli,EY. " This court having considered the matter, and exa- mined their books, and heard the witnesses, find, that the defendant is indebted to the plaintiff the sum of seven dollars debt, and his cost, taxed at two dollars and fifty-seven cents. Execution granted." The errors assigned were, 1. That the court, has not rendered judgment that either of the parties should recover any thing of the other party. 2. That the court has not rendered judgment that exe- cution should issue, but execution did issue. The writ of error was read, and submitted, without argument. , THK COURT Affirmed the judgment.(c) (a) Vide Clark v. Motet, Kirbij, 144. SAMUEL RATHBONE and MOSES RATHBONE against JUSTUS RiLEr. THIS was an action of ejectment. The general is- ^f. having sue was pleaded, and closed to the jury. ra ' de con ; J * veyance of and B. to C.f and I)., a creditor of .f ., having attached the premises, in a suit against -*., and caused a copy of the attachment to be left in the town clerk's office, before the conveyance from B. to C.f such copy is notice to C., and to all the world, of D.'t claim to the premises. 504 A SUPPLEMENT. Fet>. 1807. Dwiglit and Z. H. Smith, for the plaintiffs- RATHBONE v - Goodrich and J. Williams, for the defendant. RILJBT. The plaintiffs claimed title to the demanded premises, by the levy of an execution, in their favour, against Joaiah Brooks. The defendant claimed a title derived from Brooks, by regular conveyances. On the 2d of December, 1803, Brooks gave a deed of the land in question to Nathaniel Tryon, which was soon afterwards recorded. Tryon conveyed to the defendant, by a deed, which was executed, and recorded, on the 30th of May, 1804. . It appeared that the plaintiffs, on the 21st of January, 1804, attached the land, as the property of Brooks, in a * - suit against him, returnable to the Hartford city court. A copy of that attachment, with the officer's doings there- on, was duly left in the town clerk's office. Having ob- tained judgment against Brooks, the plaintiffs took out execution, and on the 18th of May, 1804, had the same levied on the land, which was immediately apprai- sed, and set off to them. The execution, with the offi- cer's return, was recorded by the town clerk, on the 23d of the same month, and by the clerk of the city court, on the 2d of June. Evidence was introduced, by the plaintiffs, to show that the deed from Brooks to Tryon was fraudulent. The counsel for the defendant contended, that he was a bond Jide purchaser without notice of any fraud, and without notice of the plaintiffs' attachment; and that his A SUPPLEMENT. 505 title, therefore, was valid. To this point Lee v. Abbe(a} Feb. 1807. was cited. RlLEY. The counsel for the plaintiffs insisted, that the copy of their attachment, left in the town clerk's office, was constructive notice to the defendant, and to all the world, of their claim against Brooks. And as to the doctrine established in Lee v. Abbe, they said, it did not apply to this case; because the plaintiffs' lien on the land ac- crued before the execution of the deed from Tryon to the defendant. It was answered, contra, that the copy of an attach- ment against Brooks, in the town clerk's office, could not be constructive notice to the defendant, when he was about to take a conveyance from Tryon. SWIFT, Pr. J. in summing up to the jury, said, that if they found the deed from Brooks to Tryon to be fraud- ulent, the copy of the attachment left in the town clerk's office, and the record of the execution, was construc- tive notice in law to the defendant, and to all the world, that the plaintiffs claimed the demanded premises ; and that the levy of the execution by the plaintiffs vested in them a legal title thereto. The jury found a verdict for the plaintiffs, which was accepted. (a) 2 Hoot, 359. Via. III. T 506 A SUPPLEMENT. Feb. ISOr. LEVI COLLINS, Assignee of the estate and effects of DANIEL SAMPSON and JAMES FOSTER, Bankrupts, against ELEAZER W. PHELPS. Indebitatus THIS was an action of assumflsit. The declaration was assnmbsit for . _ ,, money had l n substance as follows : - and received ad computan- dum cannot be That the defendant on the 20th of July was justly and sustained, un- . less the de- truly indebted to the plaintiff, as assignee of bamfison pressly prcu an ^ -foster, in the sum of seven hundred dollars, for so raise to pay a mucn money before that time and since the bankruptcy particular sum. had and received to and for the use of the plaintiff, as assignee; for that Sam/ison and Foster since their bank- ruptcy delivered to the defendant certain bocks of ac counts, notes and receipts, in their favour, and authorized the defendant to receive the moneys due on the same to the use of the plaintiff, as assignee; that the defendant had received and collected seven hundred dollars, the avails and proceeds of said books, notes and receipts, for the use and benefit of the plaintiff, as assignee; that the defendant became liable to pay that sum to the plaintiff, and being so liable, assumed and promised, &c. The general issue being pleaded, and the case being on trial to the jury, Goodrich, for the defendant, objected to the admission of any evidence, under this declaration, on two grounds: 1. Because an action of account only can be sustained on these facts.(a) (a) A case in Salkeld was mentioned from the bench as applicable to this point. Poulter v. Cornwall, 1 Sulk. 9-. was probably the case al- luded to. That was an action of indebilatus as&umpsit for money bad A SUPPLEMENT. 507 2. Because the declaration contains no sufficient de- Feb. 1807. scripdon of the property. It is so loose that we cannot be compelled to answer to it. v. VHELPS. JZdwarda, for the plaintiff. 1. We have not described the defendant as an attor- ney, nor averred that the moneys were received by him in that capacity. That we may have another ac- tion is no reason why we may not maintain this. For the sums collected on book, however, we must bring assumfmit; we cannot bring trover. Nor, indeed, can we bring account; for the defendant was never our bailiff and receiver. 2. We cannot particularly describe the notes and ac- counts. We expect to prove that the defendant has received a specific sum, which he has not paid over. BRAINERD, J. The question is, whether, from the facts disclosed in the declaration, it appears that an ac- and received adcomputandum. On a motion in arrest, after verdict, it was contended that that action did not lie, but account ; for if a man receives money to a special purpose, as to account, or to merchandise, it is not to be demanded of the party as a duty, till he has neglected or refused to apply it according to the trust under which he received it. And the declaration must show a misapplication, or breach of trust. The court, however, held, that the verdict had aided the declaration ; for, say they, it must be intended that there was proof to the jury that the defendant refused to account, or had done somewhat else that ren- dered him an absolute debtor. This clearly implies, that the declara- tion would be ill on demurrer; and since the decision in Rnshton\. .-tsftinallt Doug. C7'J. I apprehend it would be held to br so after ver- dict. As it was not stated in the declaration that the defendant had refused to account, or that he had done any act which rendered him an absolute debtor; and as these were not circumstances necessary to :m> of the facts charged; it was not requisite for the plaintiff to prove thorn, and, consequently, not to be presumed, from the verdict, that he had , proved them. 508 Feb 1807. PECK v. WOOD- BRIDGE. A SUPPLEMENT. tion of account ought to be brought ? These facts ne- cessarily imply that the defendant has an interest; and the proper action is account. TRUMBULL, J. This action is brought expressly for 700 dollars. If the defendant disclaims all charges, all hires ; if he has had this sum clear of all claims, per- haps such evidence is admissible under this declaration. SWIFT, Pr. J. I should think assumfisii in this case would lie; but the opinion of the court is, that you can prove nothing but an express promise. The plaintiff's counsel then offered in evidence an en- dorsement made by the defendant on a note from Samfi- son and Foster to him in these words : " January, 11, 1803. Received in goods, book debts, and money, six hundred and thirty dollars in part of this note. E. W. Phdjis." f This evidence being objected to, THE COURT ruled it inadmissible. The plaintiff, failing in any further proof, was Nonsuited. Feb. 180?. SAMUEL PECK against DEODAT WOODBRJDGE. A decree of THIS was a petition in chancery for an injunction vin- been re- a g a * nst au action at law commenced by the respondent versed, on the ground of fraud practised in obtaining it, and the party injured restored to bis former situation ; and an action at law having been brought to recover damages for the fraud ; chancery will not interpose to grant an injunction against that action, on an applica* tion, by the opposite party, for that purpose. A SUPPLEMENT. 509 against the petitioner, and which was still pending. The p e b. 1807. action at law had grown out of a previous controversy between the parties, the history of which was stated in the petition. It was substantially as follows: BRIDGE. On the 1st of June, 1768, Noah Rust mortgaged a farm of laud to Jchiel Rose, defeasible on the payment of a sum of money by the 1st of Jifiril, 1772. Rose eiir tered into possession in January, 1770; and he, and those who held under him, continued in possession from that time until February, 1802. In January, 1771, Rust died insolvent. In March, 1782, his administrator brought a petition to redeem, and obtained a decree in his favour. He failed, however, to pay the mortgage money by the time limited in the decree. By a succession of regular conveyances from the mortgagee, the title to the pre- mises became vested in Woodbridge, the present re- spondent. Peck, the present petitioner, had married the daughter and heir of the mortgagor; and in Seji- tembtr, 1799, Peck and his wife brought a bill of review, praying for liberty to redeem, on the ground that she, at the time of her marriage, was a minor. The court decreed a redemption, and ordered Woodbridge to remove a store which he had erected in front of the premises. Woodbridge complied with the decree; but afterwards discovering that the evidence on which the decree had been obtained was false, and imposed on the court by the fraudulent conduct of Peck, he brought a bill of re- view. The court found the facts stated by Woodbridge t as the ground of application, to be true, and reversed the decree of redemption, on the terms, that each party should be restored to the condition he was in be- fore that decree, and that Woodbridge should recover his costs in both suits. The rents and profits, while Peck was in possession, were, by agreement, set off* against the interest of the money. After the execution of the decree last made, Woodbridge brought an action at law 510 A SUPPLEMENT. Feb. J807. against Peck, the gravamen of which was, that Peck -p^K had, by a deception practised upon the witness, im- v - posed false evidence upon the court, and had, in con- Woo D- BRIDGE. sequence of the fraud, and the decree by that means obtained, put Woodbridge to great expense in defend- ing against the petition, in removing his store, and in the interruption of his business. For an injunction against that action this petition was brought. To this petition there was a demurrer. Ingersoll and E. Perkins^ for the petitioner. Goodrieh and Daggett, for the respondent. In support of the demurrer, it was argued, 1. That the same matters, which are stated as the ground of this application, may be pleaded to an action at law. If these matters would not make a sufficient de- fence at law, they will not be sufficient to Avarrant the interposition of a court of chancery. The former pro- ceedings in chancery ought, no less than a judgment at law, to be pleaded by the party who would avail himself of them. If there has been a satisfaction, by the execu- tion of the decree, it should be pleaded. 2. That the action at law is for matters which the decree could not reach. Woodbridge's bill was a bill of re-view ufion new matter discovered, the objects of which were, to produce an examination and reversal of the de- cree made on the former bill, and also to put the peti- tioner into the situation in which he would have been, if that decree had not been executed. These are the proper, and the only proper objects of a bill of this na- ture.^) But merely to reinstate the party in his former (a) Mit. Plead. 7881. Hindis Chan. 56, 57. A SUPPLEMENT. 511 situation would not afford him complete redress. The Feb. 1807. action at law is broader; it alleges matter extraneous to p^c the bill; it demands a sum in damages for expenses in- T - . . . ... WOOD- curred, ana injuries sustained, in consequence of the fraud. 3. That, at any rate, the court will not, on this peti- tion, examine into, and' decide upon, the merits of the action at law. A bill of review is already sufficiently complex. Against the demurrer, it was argued, 1 . That the plaintiff in the action at law has no merits. He could be entitled to but one satisfaction ;(a) and that he has obtained by the execution of the decree. The general rule is, that a party may go to law for damages, or into chancery for specific relief. But after he has gone into chancery, he cannot, for the same cause, go to law. The relief is in lieu of damages. If he can get more at law than in chancery, he may go to law; but he must make his election. The redress, which the pre- sent respondent has sought and obtained in chancery, must now be considered as complete; for where a court of chancery has jurisdiction of the firincifial subject, it will take into consideration the incidents, and do justice in the case. To restore a party to his former situation means, ex vi termini, giving him complete redress. (a) Fetter v. Seal, 1 Ld. Rayn. 339. 692. Taybr T. Ctlet etaL 1 Hen. Mia. 555561. 512 A SUPPLEMENT. Feb. 180T. 2. That the present application is the firofier mode TALCOTT ^ ta king advantage of this matter.(a) V. COGSWELL. BT THE COURT, The petition was adjudged insufficient. (a) Gilb. Chan. 200 202. Martin v.' Martin, 1 Ves. 211. Brooks et Ux. v. fteynolds, I Bro. Chan. Cos. 183. Jtardcastle v. Ctetlle, 4 Ifro. Chan. Cos. 1 63. Mayor and Corporation of York v. Pilking- ton, 2 ./frfr. 302. WILLIAM TALCOTT against MASON F. COGSWELL. Where there THIS was an action of assumfisil by the second en- dorsors r of e "a dorsor f a promissory note against the first endorser, promissory f or one mo iety of the amount of the note, paid by the note, they are, in general, li- plaintiff, on the failure of the maker. The action was able to each other, in the commenced in December, 1804. order of their respective en- The case, as it appeared from the evidence, was as J. being in- follows: In the latter part of the year 1800, Samuel Tudor debted to B. by note, and held William Howe's note, endorsed by the defendant, pay P< parf' by ^ or 50 dollars. When that note became payable, Howe a new note, ca lled on Tudor, and offered him, in part payment, makes his note payable to c. another note, with the same names, for 400 dollars. and then pro- . ..... cures C., and -tudor objected to receiving it, without another name on ^endorse it the back '> u P on wnich il was agreed that the plaintiff's for Jl.'s ac- should be added. Howe accordingly presented the note commodation; the note be- coming due, after having been accepted by B., and discounted for him at the bank, A. fails to take it up, and C. and D , after notice of such failure, come separately to the bank, and take it up, each paying a moiety. In an action brought, more than three years afterwards, by J). against (.! , to recover back the money paid by D. on the note, these circumstances furnish sufficient evidence, that the endorsement by both was joint, and each having paid what, in that case, each would be compellable to pay, no recovery can be had- A SUPPLEMENT. 513 to the plaintiff, who endorsed his name under that of p e b. 1807. the defendant. The note was then delivered by Howe TA ~ C ~TT to Tudor, who got it discounted at the Hartford bank. v *-* O G 8 W E I * T< Howe failed to take it up; the endorsers were both no- tified; and each came separately to the bank, and paid 200 dollars. T. S. Williams and S. Terry, for the plaintiff". Goodrich and Divight, for the defendant. SWIFT, Pr. J. in summing up. There is no question but that the first endorser is liable to the subsequent en- dorsors, in case they have to pay the money. The ques- tion, in this case, is a question of fact, whether both plaintiff and defendant were not joint sureties to Tudor for Howe ? The jury found a verdict for the plaintiff. THE COURT were of opinion, that the circumstances of the case furnished sufficient evidence that the endorse- ment was joint; and that each having paid what, in that case, each would be compellable to pay, the verdict ought to be for the defendant. They, therefore, re- turned the jury to a second, and afterwards to a third consideration; but the jury adhered to their verdict. VOL. 111. 3 U TO THE PRINCIPAL MATTERS IN THIS VOLUME ABANDONMENT. la case of an insurance upon profits, and a total loss, no abandonmen- is necessary. Fotdick v. Norwich Marine Insurance Company, 108 ABATEMENT. A writ of error cannot be brought by one only of several respondents to a bill in chancery, against whom a decree ha* been passed; but all must join. Phrlfu V. Ellsworth, 144 ACCOUNT. 1 In an action of account, alleging thtt the plaintiff and defendant built a ship under an agreement, that each should contribute an equal moiety of the expense, and receive an equal moiety of the avails; that she received a cargo, and was sent to Baltimore, by the plaintiff' and defendant; thence by direction of the plaintiff' and defend- ant she went to London \vith a cargo on freight ; and afterwards per- formed several other voyages with a cargo on freight, and was, at last, sold at CadiZi and that the defend- ant received more than his propor- tion of the ship, both of the voyage^ and the sale: Held, that the plain- tiff and defendant were to be con- sidered, under this declaration, as joint owners of the ship, and jointly interested in all her voyages, from the time she was built until she was sold; and that in order to ad- just the accounts of the parties, it was proper for the umlitors to ht* 516 INDEX TO THE PRINCIPAL MATTERS. quire into the earnings of the ship, and the losses incidental to the ; voyages. Hale v. Hale, 377 2. An attorney may be liable for a debt lost by his negligence, but he is not of course liable for the loss of the evidence of that debt- And in a su.t brought against him for suck lost, he may show that the plaintiff had another remedy for the reco- very of his dt- bt, which he has sue*, cessfully pursued. Huntington v- Rumnill, 390 Vide ASSUMPSIT, No. 4. ACTION. 1. A man cannot collaterally impeach, or call in question, a judgment of a court of law, or a decree in equity, to which he is a party. No action, therefore, will lie, for obtaining a decree by false and forged evidence, while such decree remains in force. Peck \. Woodbridge, 30 2. The condition of a bond being that the defendant should carry on the business of distilling cider brandy seven years and three months, and keep an exact account of the quan- tity distilled, and deliver to the plaintiff, when demanded, one tenth part thereof; and it appearing, that the defendant did carry on said bu- siness, but kept no account, and .de- livered nothing to the plaintiff; it was held, that the plaintiff could have no right of action on the bond until the end of said term- Coitlc v. Payne, 289 3. On the 26lh of October, 1805, A. agreed to finish a ship then partly built, in about one month, and then sell her to U. at a certain price per ton, payable in a manner, and at times specified. On the 8th of Fe- bruq.rv, 1306, B. gave his note for the payment of a certain sum as soon as that amount should become due on the contract. Held, that this note became payable only upon a strict fulfilment of the contract on the pnrt of /*./ that a finishing and delivery pi' the ship on tbe 3'Jth of April, 1806, was not such a fulfil- ment; and that a release from B. of all exceptions arising from a non- fulfilment would not give A. a right of action on the note. Smith v. Bar- ker, 316 Vide Hanfordv. Pcnnoyer, in note, 35 AFFIDAVIT. 1. An affidavit in support of a motion to put off a cause for the absence of a witness, cannot be explained by matters extrinsic. Smith v- Barker, 280 2. After an affidavit in support of a motion for the continuance of a cause, on the ground of the absence of a material witness, has been made, the opposite party may make a counter affidavit, stating any circum- stances that render it impossible, or improbable, that the evidence of the witness can be obtained within a reasonable time; but such counter affidavit must not deny the materi- ality of the evidence. Anonymous, 308 ALIEN. The courts of the United States will not hold jurisdiction of a cause on the ground that one of the parties is an alien, unless he is stated to be such in express terms. Michaelson v. Denniaon, 294 AMENDMENT. 1. Amendment, when allowed. Mi- chaelson v. Dennison, 294 2- A declaration may be amended in any stage of the trial, before, the case is actually committed to the jury,' Smith v. Barker, 315 3. A material amendment allowed in a bill to redeem, without costs Burn- ham v. Goodwin, 496 4. In what cases of amendment costs must be paid- Huntington v. Shel- don, 49T INDEX TO THE PRINCIPAL MATTERS. 517 ARREST. Vide EXECUTION, No. 1. ARREST OF JUDGMENT. It is a sufficient ground of arrest c>f judgment, that one of the jurors conversed about the causr, while it was on trial, with persons not of the jury- Benntt v. Howard, 219 ASSIGNMENT. 1. An action in favour of the endorsee of a promissory note, a citizen of one st.ite, against the endorser, a citizen of a different state, may be brought before the circuit court of the United States, though the ma- ker and payee of such note are citizens of the same state. Cod- vise v. Gleason, 3 2- Under the late bankrupt law of the United States, * right of action founded on a tort did not pass, by a general assignment of the bank- rupt's estate, to the assignees. Bird v. Clark, 272 ASSIGNMENT OF BOOK. DEB FS. In the assignment of a book debt, no- tice to the debtor is indispensable ; for, until such notice is given, the property remains in the assignor's possession, and is liable for his ' dabu. Woodbridge v. Perkins, 364 ASSUMPSIT. 1. Aitttmpsit will lie for articles or ser- vici-.-, C'Kimiunly charged on book. Edwards v. Nichols, 16 <2. A declaration for labour done, or ices performed, generally, is good, ib- !>. In aisumpsit, though for articles commonly charged on book, the parties cannot be permitted to tes- ib, ic receives money of another for a specific purpose, and fails to ap- ply it, assumpsit will lie- Wales v. ifetmore, 252 5. A promise by one of the heirs to pay a sum of money to his coheir, in compliance with the determina- tion of distributors appointed by the heirs and devisees of an estate of a deceased person, is without consi- deration, and void. Mitnson v. Mitn- son, 260 6 After judgment in an action of as- sumpsit, the promise alleged may be considered as an express, or even a written promise. Hunting- ton v. Todd, 465 7. That H. being liable to pay the debt of T. did pay it, is a good considera- tion to support a promise by T. to repay //, ib. 8. Indebitatus assumpsit, for money had and received ad computandum can- not be sustained, unless the defend- ant expressly promise to pay a par- ticular sum. Collins V. Phelft, 506 ATTORNEY. An attorney may be liable for a debt lost by his negligence, but he is not of course liable for the loss of the evidence of that debt. And in a suit brought against him for such loss, he may show that the plaintiff' had another remedy for the recovery of his debt, which he has successfully pursued. JJuntir.rton V. Utimnill, AWARD. Vide JURISDICTION, No. :>* BAIL. 1. The right of hail to arrest and con- Jin-- tin: person of his principal is truiiMloi \ , and may be exercised :ever the latter may be found. v. ffurt, 485 31S INDEX TO THE PRINCIPAL MATTERS. 2. But if the bail in arresting his prin- cipal makes use of more force than is necessary for the purpose, he will be liable for false imprisonment. Pease v. Bun, 485 BANKRUPT. 1. The assignee of a bankrupt, under the late bankrupt law of the United States, must prove title, in an action of ejectment, like any other party, by producing the original deeds. Taitott v. Goodwin, 264 2. U'lderthe bte bankrupt law of the United States, a right of action founded on a tort did not pass, by the general assignment of the bank- rupt's estate, to the assignees. Bird v. Clark, 272 Vide EVIDENCE, No. 16. BOND. BOOK DEBT. 1. Aisumpsit will lie for articles, or ser- vices, commonly charged on book- Edwards v Nichols, 16 2. Book debt will lie for necessaries furnished to an infant, without a re- quest from the party liable, or a promise to pay for them. Stanton v. Willton, 37 3. A wife may be a witness for her husband in an action of book debt, especially after his death, though the charges accrued in his life-time, ib. 4. A record, that the defendant in, an an action of book debt appeared, and pleaded that he owed the plaintiff nothing, but that the plain- tiff owed him, and judgment that the parties were fully heard thereon, is conclusive against him, in another action on book. Lane v. Cook, 255 Vide ASSUMFSIT, No. 3. J. The condition of a bond being that the defendant should carry on the business of distilling cider brandy for seven years and nine months, and keep an exact account of the quantity distilled, and 'kliver to the plaintiff', when demanded, one tenth part thereof; and it appearing that the defendant did carry on said bu- siness, but kept no account, and de- livered nothing to the plaintiff; it was held, that the plaintiff could have no right of action on the bond until the end of said term. Cottlt v. Payne, 289 2- Payment of a bond will not be pre- sumed from lapse of time alone within a shorter period than twenty years, ib. 3. A bond was given to A., B. and C-, committee of an ecclesiastical soci- ety, and their successors in office; after the removal of the obligees named in the bond, the successors brought an action on the bond in their own names: Held, that the action was well brought- Bailey v. Lewis, 450 CAUTION. 1. Before caution can be entered with the town clerk, upon land conveyed by deed not acknowledged, the grantee must have required the ' grantor, and the grantor must have refused, to acknowledge the deed. Bond v. Kibbe, 500 2. Caution having been entered, after such demand and refusal, the deed, though unacknowledged, may be given in evidence in an action of ejectment, ib. CERTIFICATE. Vide IDLE PERSONS. EVIDENCE, No. 20. CHALLENGE. Vide JURY, No. 6. INDEX TO THE PRINCIPAL MATTERS. 519 CHANCERY. 1. If a person, intending' to make a fa- mily settlement of his estate, in na- ture of a testamentary disposition, conveys lands to his sons, by several deeds, and the deed to one proves defective, chancery, alter the death of the grantor, will compel his heirs and widow to perfect the title of the grantee. M*Call v. M'Call, 402 2. A decree of chancery having 1 been reversed on the ground of fraud practised in obtaining it, and the party injured restored to his former situation ; and an action ut law hav- ing been brought to recover dama- ges for the fraud ; chancery will not interpose to grant an injunction against that action, on an applica- tion, by the opposite party, for that purpose. Peck v Woodbridge, 508 Vide MORTGAGE. CIRCUIT COURT OF THE UNITED STATES. 1. An action in favour of the endorsee of a promissory nolc, a citizen of one state, against the endorsor, a citizen of a diflr rent state, may be brought before the circuit court of the United States, though the ma- ker and payee of such note are citi- zens of the same state. Coducise v. Gleason, 3 2. If a party is described as a citizen of the district of f.'no-l'ort, lie is .sufficiently described : s a citizen of the stale of New -York. Edwards v. Nicholt, 16 CITIZEN. 1 If a party is described as a citizen of the district of Ntm-York, he is sufficiently drsi n'n, ,1 :is :i rii tin- st'ite of ATeu-lW. Edvard* v. Nic'iott, 16 2. In an action of ejectment for lands in Connecticut, >f which the defend- ants hud disseised the plaintiffs 18 months before, and continued in pos- session, part of the plaintiffs were described as citizens of Vermont, and part us citizens of Connecticut, and the defendant was described as a citizen of Neva York, dwelling in Connecticut: H> Id, that the plaintiffs were not citizens of Vermont, nor the defendant a citizen of New-York, within the constitution and laws of the United States; and that the cause, therefore, was not within the jurisdiction of this court. Bissell v. Horton, 281 COLLECTOR. Vide EVIDENCE, No- 4. 6, COMMON LAW. 1. Every public show and exhibition which outrages decency, shocks hu- manity, or is contra bonos mores, is punishable at common law Knoiules \. State, 103 2. If an offence punishable at C( mmon law is averred in the information to be contra forrnam stattiti, such averment may be rejected as sur- plusage, and will not vitiate, ib. Vide ESTATE-TAIL, No. 2. CONCLUS1VENESS OF A JUDG- MfcLNT OH DECREE. 1. A ninn cannot collaterally impeach <>r c-.ill in (jiii^tion ;i judgment of a r.iiirt o?' law, or * decree in equity to winch IK- is a party. No action, therefore, v.ill lie, f,, r obtaining- a derm by I'alsc rind forged evidence, whil. Mirh <', i t-fc remains in force Puck v H'oudiindge, 30 be (U< i-< f - of a rourt of probate lading a will containing a de- VlV(> ' f '<:! i'':ii<", is conclusive tip-in the I)- ii s of the devisor, until disaffirmid on appeal, or set aside in due course of law. Judson v. 7 -'<'. 318 Uanford\. Pennoyer, in note, 35 520 tNDEX TO THE PRINCIPAL MATTERS CONFESSIONS. Vide EVIDENCE, No. 23. CONSERVATOR. If a plaintiff sues or pleads by conserva- tor, and the record is in usual form, and judgment in his favour, it will be good ; and those words will be rejected as surplusage. Woodford v. Webster, 472 CONSIDERATION. That H. being liable to pay the debt of T. did pay it, is a good considera- tion to support a promise by T. to repay H. Jfuntington v. Todd, 4G5 Vide DISTRIBUTORS, No. 2. USURY> No. 5. CONSTRUCTIVE POSSESSION. Vide TRESPASS, No. 3. CONTRACT. 1. A contract to reprint any literary work in violation of a copy-right secured to a third person, is void; and the printer who executes such contract, with a knowledge of the rights of such third person, can re- cover nothing for his labour. Ni- chols v. Rugglfs, 145 2. On the 2oth of October, 1805, A. agreed to finish a ship then partly built, in about one month, and then sell her to B. at a certain price per ton, payable in a manner, and at times specified. On the 8th of Fe- bruary, 1806, B. gave his note for the payment of a certain sum as soon as that amount should become due on the contract. Held, that this note became payable only upon a strict fulfilment of the contract on the part of A.; that a finishing and delivery of the ship on the SOth of April, 1806, was not such a fulfil. ment; and that a release from B. of all exceptions arising from a non- fuifiiment, would not give A. a right of action on the note. Smith v. Barker, 316 Where a fund was bequeathed to the ecclesiastical society of N., S., the interest of which was to be applied for the purpose of maintaining a free school in one of the districts, it wns held, that an agreement by the society to divert this fund from the object for which it was given, and apply it to the support of the ministry, was void, being a fraud upon third persons. Bailey \. i,eivis, 458 Vide PUOMISSORY NOTES, No. 3. CONVEYANCE, FRAUDULENT. 1. A. on the eve of a failure, made a general assignment of his effects, and gave immediate possession to B. one of his creditors, in trust, to satisfy the debts due to B and cer- tain other meritorious creditors spe- cified, and to pay over the surplus, if there should be any, to the cre- ditors generally. C- and D., credit- ors not specially named, soon after- wards attached those effects in the hands of B., as the property of A. Held, that this conveyance was not by law fraudulent against the at- tachment of creditors. Hempsted v- Starr, , 349 COPY. ride EVIDENCE, No 20. 25, 26. COPY-RIGHT. A contract to reprint any literary work in violation of a copy-right secured to a third person, is void; and the printer who executes such contract, with a knowledge of the rights of such third person, can re- cover nothing for his labour- Ni- chols v. Sugglcs, 115 INDEX TO THE PRINCIPAL MATTERS. 521 2. The provisions of the act of con- gress requiring the author or pro- prietor to publish the title of his book in a newspaper, and to trans- mit a copy of the work itself to the secretary of state, are merely di- rectory, and constitute no part of the essential requisites lor securing the copy-right. Nichols v. Rug&les, 145 CORPORATION. 1. Serving a summons on any private individual of a corporation is not sufficient notice to hold the corpo- ration to trial. Rand v Bull, 441 2. And the individual summoned may plead the want of notice to the cor- poration, ib. 3. A bond was given to A., R. and C., committee of an ecclesiastical so- ciety, and to their successors in office ; after the removal of the obligees named in the bond, the successors brought an action on the bond in their own names : Held, that the action was well brought. Bailey v. Levitt, 450 4- The confessions of individual mem- bers held that .1 was entitled to re- cover as well the* costs in the suit at law, ux those under ihr submission; both of which, as staled in the de- claration, amounting to more than VOL. III. \ seventy dollars, gave the superior court jurisdiction of the cause. Rowley v. Young, 118 2. The circuit court of the United States, in the exercise of their dis- cretion, will not tax costs against a prevailing plaintiff, except where he must have known that he was not entitled to recover 500 dollars. Cot- tie v. Payne, 289 3- A material amendment allowed, in a bill to redeem, without costs. Burn- ham v. Goodwin, 496 4. In what cases of amendment costs must be paid. Huntington v. Shel- don, 497 COVENANT. 1. In an action of covenant against a mas- ter, for sending his apprentice out of the country, parol evidence is ad- missible, on the plea of not guilty, to prove that the plaintiff consented to the act. Burden v Skinner, 126 2. A. conveyed to B with covenants of seisin and warranty, a piece of land containing thirteen acres, bounded north and south by undisputed limits, east by the land of C-, and west by that of A In an action of trespass quare clausum fregit t brought by B. against C. to which the defendant pleaded title, claim- ing that the dividing line between his land and that conveyed to the plaintiff was west of the locus in l>v v- Good- rich, 43:1 CHIMES. 1. Even' public show and exhibition INDEX TO THE PRINCIPAL MATTERS. winch outrages decency, shocks hu- manity, or is contra bonos marts, is punishable at common law. Knoivlcs v. State, 103 2. If an offence punishable at common law is averred in the information to be contra formam statuti, such aver- ment may be rej^csed as surplusage, and will not vitiate, ib. CUSTOM OF MERCHANTS. In an action against the owners of a vessel, for a quantity of gold and silver coin, taken by the master at Nevis, on freight, evidence of a custom of merchants in Connecticut and New-Tort, that the freight of money received by the master is his perquisite, and that he is to be personally liable on the contract, and not the owners, was held to he admissible. Hahey v. JSroton, 346 D DAMAGES, RULE OF. In :m action of trespass for taking and detaining a ship, it was held, that the plaintiff was entitled to give in evidence a process in replevin by C- a third person, a replevin bond by D and ., as sureties, and a judgment thereon in favour of the defendant, and to prove that he the plaintiff had indemnified those sure- ties, for the purpose of showing that he became liable to the defend- ant for the amount of his claim against C.; and that this sum ought to be the rule of damages. Bird v. Clark, 273 DAMAGES. 3. Payment of a bond will not be pre- sumed from lapse of time alone within a shorter period than twenty years. But where the demand is a stale one, the plaintiff will be held to strict proof of the amount of da- mages, which he is entitled to re- cover. Cattle v. Payne, 289 2. In an action for a vexatious suit, the plaintiff having stated, that in the original suit, he recovered his costs, alleged, that he vias most injuriously imprisoned on said suit, for the space of twenty four hours, and in defending the same expended large sums of mo- ney, to wit, the sum of 200 dollars in employing counsel to defend ; also the sum o/^OO dollars in paying witnesses, and maintaining them when attending on the trial; also the sum of 100 dot" lars in making various journeys to procure testimony, and in attending on the triai , without showing that such damages exceeded the costs recovered : Held, this was a suffi- cient allegation of damages. Ster- ling v. Adams, 411 3. In trespass vi et armis, the damages are not limited by the value of the property destroyed. Ed-wards v. Jieach, 447 DATE. In a policy of insurance, the clause "prior in date t " referring to other policies upon the same risk, is equi- valent with prior in time. Brotun v. Hartford Insurance Company, 58 DECLARATION. 1. A declaration for labour done, or services performed, generally, is good. Edwards v. Nichols, 16 2. In an action on a promissory note for 80 dollars, to be paid in good West-In- dia rum, sugar, or molasses, at the election uf the payee, within eight days after date, it was held to be unne- cessary to aver, that the payee made his election, and gave notice thereof to the promissor, as the latter was bound, at all events, to make pay- ment in one of the articles specified, within eight days, and on failure, became immediately liable. Town- send v. Wells, 32? INDEX TO THE PRINCIPAL MATTERS. 5J3 DECREE. A man cannot collaterally impeach, or call in question ajudgment of a court of law, or a decree in equity, to which he is a party. No action, therefore, will lie, for obtaining a d- ( fee by false and forced evidence, wlulrr such decree remains in force. Peck v. Woodkridge, 30 Vide EVIDENCE, No. 3. DEED. 1. A man may show that he was non compot mentis, in avoidance of his d.vd. Webster v. IVtodford. 90 2. If a prrson, intending to make a fa- mily settlement of his estate, in na- ture of a testamentary disposition, conveys lands to his sons, by several deeds, and the deed to one proves defective, chancery, after the death of the grantor, will compel his heirs an* I widow to perfect the title of the grantee. M'Callv M'Call, 402 3. A grant of land to A. to continue lor a yard to build vessels in, by A and his heirs, so longas they shall see fit, but if they cease to use it for this purpose, not to be sold by them, but for ever to remain to R. and his heirs, gives A. no more than an estate for life, and the remainder to B. is good. Rutty v. Tyler, 470 DESCENT. 1. The maxim teitinafacit ttipitem has nercr been adopted in this state; but on the deatli of the ancestor, the descent is cast upon the heir, without any reference to the actual beisin of such ancestor. Hillhoute v. Cfietter, 1 66 2. By the statute of distributions, pre- is t the revision in 1784, real and personal property were placed upon the game footing; and the term " next of tin" hud the .same meaning, whether used with ri tcr- ence to one or the other. Whin used with reference to^^Pc^ it never meant those only of the blood ofthejirtt purchaser. hilLhouse V. Chetter, . 166 DEPARTURE. Quaere, whether after a plea of no awan!, a rejoinder of a revocation is a de- parture ? Fowler v Clark, 231 DEVISE. A- devised his lands to his son B. and his male heir, but if he si ould have no male heir, then to hi-* daugh- ters ; and if he should die without issue, then to the daughters of A. Held, that B took an estate -tail. Hamilton v. Htrnpsted, 332 DISCHARGE. Vide PROMISSORY NOTES, No. 4. DISSOLUTION OF PARTNERSHIP. 1. A. and B. of New-York, and C. of Nor- wich, in Connecticut, having been partners in trade, dissolved their partnership, and published notice of such dissolution, for several wieks successively, in two newspapers, one printed at Norwich, which was their usual place ot doing business, and the other at Nnc-Loiu/on, in the vicinity. B afterwards endorsed a bill of exchange in Nevi-Yott, with the company name ; but whether the endorsee hud or hail not actual notice of the dissolution did not Ap- pear ; nor did it appear that he h:l e\er been a correspondent of the company. Held, that these facts constituted reasonable notice to him, and to every other person not a cor- respond) nt of the company. Mowatt v IfiAi'liinJ, o53 2- The tacts which are supposed to con- stitute notice "of a dissolution of partnership being ascertained, it is a question of law \\lulher the no- '>< reasonable, or not, if-. 524 INDEX TO THE PRINCIPAL MATTERS. DISTRIBUTORS. 1. A distribution of the estate of a de- ceased person, cannot be made by distributors appointed by the heirs and devisees. Munson ". Munson, 260 2. A promise, by one of the heirs, to pay a sum of money to his co-heir, in compliance with the determina- tion of such distributors, is without consideration, and void, ib. DISTRIBUTIONS, STATUTE OF. By the statute of distributions, previous to the revision in 1784, real and per- sonal property were placed upon the same footing; and 'he term "next of tin" had '-he same mean- ing, whether used with reference to one or the other. When used with reference to real estate, it never meant those only of the blood of the first purchaser. Hilihouse v. -Cheater, 166 EJECTMENT. Vide BANKRUPT, No. 1. EMBARGO. 1. The homeward bound cargo of a vessel having proceeded to a foreign port in contravention of the act of congress' of the 9th of January, 1808, supplementary to the general embargo ct, is not liable to condem- nation.' United States v. Brig James Wells, 296 2- Semb. On a libel against the vessel for having tlnis proceeded, necessi- ty, arising from the stress of wea- ther, and the condition of the vessel, is no defence, ib. ENDORSEE. fide, PROMISSORY NOTES. JURISDIC- TION, No. 1. ENDORSEMENT. 1. Though a note is void as against the maker, it may be good against an endorser, in favour of an endorsee, who took it, relying upon the en- dorsement. Codviise v, Gleason, 12 2- The contract made by endorsement, extends to all future endorsees, t\en where notes are not negotiable, ib. 3. Whether, in an action by the endor- see of a negotiable note against the maker, a discharge by the payee shall be available as a defence, un- til it be shown by the maker, that the receipt was g-iven before the endorsement was made ? Stuart v. Greenleaf, 311 4. Where there are several endorsers of a promissory note, they are, in general, liable to each other, in the order of their respective endorse- ments Talcott v Cogs-well, 512 5. A- being indebted to B. by note, and proposing to pay part by a new note, makes his note payable to C., and then procures C-, and afterwards D. to endorse it for A's accommoda- tion ; the note becoming due, after hnving been accepted by 2f. and dis- counted for him at the bank, A. fails to take it up, and C. and D. after notice of such failure, come sepa- rately to the bank, and take it up, each paying a moiety. In an action brought more than three years af- terwards, by D. against C. to reco- ver back the money paid by D. on the note, these circumstances fur- nish sufficient evidence that the endorsement by both was joint, and each having paid what in that case each would be compellable to pay, no recovery can be had, ib ENDORSOR. Vide PROMISSORY NOTES. TION, No. 1. JURISIHC" ENTRY, RIGHT OF. An actual ouster, and adverse posses- sion, continued uninterruptedly far INDEX TO THE PRINCIPAL MATTERS. 525 fifteen years, will bar the original proprietor of his right of entry, whether the ouster and adverse pos- session were by the same person or persons, for the whole term, or by different persons for different por- tions of it Fanning v. Wilctx, 258 ERROR, WRIT OF. A writ of error cannot be brought by one only of several respondents to a bill in chancery, against whom a decree has been passed ; but all must join. Phelps v. Elltixorth, 144 ESTATE FOR LIFE. A grant of land to A. to continue for a yard to build vessels in, by A. and his heirs, so long as they shall see lit, but if they cease to use it for this purpose, not to be sold by them, but for ever to remain to B. and his heirs, gives A- no more than an estate for life, and the remainder due to . is good. Rutty v. Tyler, 470 ESTATE-TAIL. 1. A. devised his lands to his son B. and his male heir; but if he should have no male heir, then to his daughters ; and if he should die without issue, then to the daugh- ters of A. Held, that B took "an estate-tail. Hamilton v. Hempsted, 332 2- By the common law of Connecticut, .-in estate-tail became an estate in fee simple in the issue of the first donee in tail, ib. EVIDENCE. 1. In atsumpsit, though for articles and . ices commonl} (barged on book, ill!- parties cannot be permitted to testify. Ed-nurd* v Nicholt, 16 .'. In an action of covenant against a master, for sending his apprentice nit of the country, pa ml evidence is n the plea of not g wiYr,-, to prove that the plaintiff consented to the act. Burden v. Stinner, 126 3. A decree in chancery finding an im- material fact, is not admissible, in a subsequent suit at law between the same parties, to prove such fact. Hntchkiss v. Nichols, 138 4. In niitebitatus assumpsit for money paid to the defendants' use, the de- claration stated, that an execution had been issued against the defend- ants, inhabitants of the town of Nev:tav>n, for taxes ; that property had been taken thereon, for which the plaintiff had given his receipt; and that in consequence thereof, he had been comp'.-llcd eventually to pay this money in satisfaction of said t:i.\es. At the trial, evidence was produced of an execution against th collector. Ht Id, that there was no matt-rial variance. Beers \. Bott- ford, 159 5. The issuing of a distress by the treasurer of the state against the inhabitants of a town, may be proved by parol, ib. 6. It is unnecessary to prove the exist- ence of a distress against the col- lector, in order to let in proof of one against the selectmen, ib. ~. The plaintifi' declared, that the de- fendant, being master of the ship on board of which the plaintiff was .1 seaman, left the plaintifi', contrary to his will, on a desolate island in the South Sea. The defendant pro- ved, that IK- commanded the plain- tiff to leave the island and come on board the ship, which the plaintiff refused to do The plaintiff, to show that he had fears of ill usage, then offered to prove particular instances of abuse of the crew, by tin- inferior officers of the ship Held, that sin h evidence was not admissible. Bennett v Hward, 219 8. In an action of astumpsit by A. claim- ing to be a proprietor of Gore Scrip, against B , C and D., who had re- crivcd mon y tor the use of the pro- prietors, the defendants cannot give in evidence a receipt signed by the plaintiff and another for such Set if to account with the company, to prove 526 INDEX TO THE PRINCIPAL MATTERS. that the plaintiff' is not a proprietor. Root v. Bud, 227 9. The assignee of a bankrupt under the late bankrupt IH\T of the United States, muat pr-.ve title, in an action of ejectment, like any other party, by producing the original deeds. Talcott v. Goodwin, 264 10- In an action of trespass, for taking and detaining a ship, it was held, that the plaintiff was entitled to give in evidence a process in replevin by C a third p<-rs.m, a replevin bond by D- and .,as sureties, ^nd a judg- ment thereon in favour of the de- fendant, and to prove that he the plaintiff had indemnified those sureties, for the purpose of showing that he became liable to the defend- ant for the amount of his claim against C., and that this sura ought to be the rule of damages. Bird v. Clark, 272 11. Where a party states a contract, which, from evidence exhibited on the trial, appears to have been in writing, he must either produce it, or show that it is not in his power to do it ; otherwise no proof of its execution or contents will be receiv- ed. United States v . Porter, 283 12. Payment of a bond will not be pre- sumed from lapse of time alone, within a'shorter period than twenty years. Cattle v. Payne, 289 13. But where the demand is a stale one, the plaintiff will be held to strict proof of the amount of dama- ges, which he is entitled to recover, 14. In an action against A. and B., as partners, on a contract executed in the partnership name, A suffered a default, and B. pleaded the general issue : Held, that letters written by A- in the partnership name,, could j;ot be read in evidence by K. to sSiow that he was not a partner with A. ChampKn v. Tilley, 305 15. In such case, an account book, con- taining entries made by A. and B. may go to the jury as evidence of partnership, ib. 16. In an action en a promissory note executed by A. and B. jointly, brought against B. only, after the bankruptcy of A. under the laws of the United States, it was heicl, that the admissions of A. were evidence against H. Howard v. Cobb, 309 17- In an action against the owners of a vessel, for a quantity of gold and silver coin, taken by the master at Nevis, on freight, evidence of a cus- tom of merchants in Connecticut and New-York, that the freight of money received by the master is his peiqui- site, and that he is to be personally liable on the contract, and not the owners, was held to be admissible. Halsey v. Bro-vin, 34-6 18. An attorney ma\ be liable for a debt lost by his negligence, but he is not of ccurse liable for the loss of the evi- dence of that debt And in a suit brought against him for such loss, he may show that the plaintiff had another remedy for the recovery of his debt, which he, has successfully pursued Huntington v. RuinniLl, 390 19. The record of such recovery will be proper evidence of this fact, although the attorney was no party to it, ib. 20. A copy of a certificate of survey, signed A- B-, surveyor, and C. D. and . F., committee, and certified to be a true copy, by G. H, register, is not admissible in evidence to prove the plaintiff's title. Weils v. Tryon, 489 21. Putting a letter into the post-office, is a fact from which the jury may infer, that the person to whom it v/as addressed had notice of its con- tents. Hartford Bank \. Hart, 492 22. In an action by the endorsee of a pro- missory note against the defendant as endorsor, on the ground, that though the endorsement was a for- gery, yet he had made it his own ; and it having been proved that his name had been forged on other notes discounted at the bank, of which he had had notice, he cannot be permit- ted to prove that the names of other persons had been forged under simi- lar circumstances, of which they had had no'ic--, ib. 23. The confessions of individual mem- bers of a corporation aggregate, a party to the suit which were n&t INDEX TO THE PRINCIPAL MATTERS. made in the exercise of any corpo- rate duty, cannot be received in evi- dence ' Hartford Bank\. Hart, 492 24. An attorney cannot be compelled to produce in evidence a paper which was left with him by a client in ano- ther cause Lynde v. Judd, 499 35. Where an original paper is in the hands of an attorney under such circumstances that he cannot be compelled to produce it in evidence, the party may prove and exhibit a copy, ib' 26. A copy may be proved by comparing it .vith the original as read bj ano- ther person, * 27. Quaere, whether there ought not to be some evidence that the paper read as ihe original was in f:ict such, ib. 28. Caution having been duly entered with the town clerk, upon land con- veyed by deed not acknowledged, such deed, after demand upon the grantor, and refusal by him to ac- knowledge the s .me, may be given in evidence, though unacknow- ledged, in an action of ejectment. Bund v. Kibbe, 500 Vide VARIANCE, No. 2- EXAMINATION OF WITNESSES. When a witness has been examined by the parly against whom lie is called, as to his interest in the event, other witnesses cannot be inquired of as to his interest; and it makes no dif- ference whether such examination was under the general oath, or the voirc dire,- nor whcth. r it w:. 4. EXECUTORS. A power to two executors to sell and dispose of an estate, in such way and manner as they shall judge most beneficial to the devisees, will not give one of them a power to sell, nor will it authorize one or both to enter upon and occupy the estate. "11 v. hull, 384 Vide POWER. EXHIBITION. Every public show and exhibition which outrages decency, shocks hu- manity, or is contra bonos mores, is punish able at common law. nov>les v. State, 103 FALSE IMPRISONMENT. Vide BAIL, No. 2. EXECUTION- FAMILY SETTLEMENT. If a person, intending to make a family settlement of his estate, in nature of a testamentary disposition, con- veys lands to his sons, by several deeds, and the deed to one proves defective, chancery, after the death of the grantor, will compel his heirs and widow to perfect the title of the grattt*e. M'Call*. M'Calt, 402 FEE-SIMPLE. Vide DEED, No. 3. FEME COVERT. Vide CoNCLl'SIVENESS OF A SEMTENCt OR DECREE, No. 2. FORECLOSURE. Up m a bill of foreclosure by a mortgt- 5.23 INDEX TO THE PRINCIPAL MATTERS. gee holding separate mortgages for distinct debts, chancery will decree a ioreclosure, upon the failure of the mortgagor to pay both debts, and will not make sep-r-jte decrees for each debt. Phetpsv. ElUviorth, 397 FOREIGN ATTACHMENT. 1. A. gave a legacy to the wife of B. payable in three and six years from the testator's death ; C- a creditor of B. Attached this legacy, by process of foreign attachment, in the hands of A V executor, and demanded the same of him, on execution, before the first instalment became due, and then brought a scire facias against him to answer the debt out of his own estate : Held, that he was not liable Benton \. Dutcher, 436 2- Qttere, whether a legacy due to the wife, but not reduced to possession, can be atached, by process of foreign attachment, for a debt dvie from the husband, Ib. FOREIGN JUDGMENT. 1. Letters of administration granted under the authority of another state, are of no avail in this. Rilcyv. Ri- ley, 74 2. Letters testamentary issued under the authority of one state, are not available in another. Champlin v. Tilley, 303 FRAUD. Where a fund was bequeathed to the ecclesiastical society of N. S., the interest of which was to be applied for the purpose of maintaining a free-school in one of the districts, it was held, that an agreement by the society to divert this fund from the object for which it was given, and apply it to the support of the minis- try, was void, being a fraud upon third persons. Bailey v. Levis, 450 Vlh Acriox, N ;. 1 FRAUDULENT CONVEYANCE. A. on the eve of a failure, m:'de a general assignment of his effects, an. I gave immediate possession to B. one of his creditors, in trust, to brttisf) the debts uue to B and cer- tain other meritorious creditors spe- cified, and to pay over the surplus, if there should be any, to the cre- ditors generally. C. and D., credit- ors not specially named, soon after- wards attached those effects in the hands of B., as the property of A. Hf Id, that this conveyance was not by law fraudulent against the at- tachment of creditors. HempMad v. Starr, 34i FRAUDS AND PERJURIES. 1. A contract for the sale of things an- nexed to the freehold, but which are capable of separation without violence, and by the terms of the contract are to be separated, is not within the statute of frauds and per- juries. Bostviick v Leach, 476 2. Nor is an agreement not to exercise a right regarding the freehold, as to use a mill, or to carry on a trade in a particular shop, within the sta- tute, ib. 3. The statute contemplates a transfer of lands, or some interest in them, ib, G GENERAL ASSEMBLY. In 1707, the General Assembly of Connec~ tkut had not so far parted \vith their judicial authority, as to preclude them from awarding new trials in subordinate tribunals. Hamilton v. Hempsted, 332 GENERAL RULES. Vide REGULA GENERALES. INDEX TO THE PRINCIPAL MATTERS. 529 GRANT. A grant of land to A. to continue for a yard to build vessels in, by A. and his heirs, so long as they shall see n't, but if they cease to use it for this purpose, not to be sold by them, but for ever to remain to Ji. and his heirs, gives A. no -more than an estate for life, and the remainder to B. is good. Rutty v. Tyler, -170 GUARDIAN, APPOINTMENT OF. A motion for the appointment of a guar- dian to an infant party, must be in writing, and must state the name of the person proposed, and his consent to be appointed. Hartthorn v. San- ford, 279 H HEIR. ^'i.le DESCENT, No. 1. HUSBAND AND WIFE. 3. Husband and wife were divorced by a decree of the legislature; alimony was allowed her, which was to be in lieu of all claims of dower; and she was constituted sole guardian of two of their infant children : held, th ;.t the father was liable for tin; education and support of such chil- dren, furnished, in the first place, bJier as guardian, and afterwards by * stranger, t > whom she had been married. Staunton v Willson t 37 A wife may b.e a witness for her husband in an action of book debt, especially utter his death, though ;he charges accrued in his life-time. selectmen to take into their care and custody, the persons and pro- perty of persons likely to be redu- ced to want, by idleness, misma- nagement, or bad husbandry, must have a strict construction, and be strictly pursued. The'retore, where the selectmen, having taken the property of a per- son of that description, neglected to set up a certificate of their doings, and to make and lodge in the town clerk's office an inventory of the property taken, pursuant to the pro- visions "of the l^tli section, it was held, that they could not retain such property, and" that the owner, after demand ;ind refusal, was> entitled to recover against them in trover. Knapp v. Lockivood, IMMATERIAL FACT. Vide EVIDENCE, No. o. INDEBITATUS ASSUMPSIT. Indeiitatus assunipsit for money had and received ad contputanduin cannot be sustained, unless the defendant ex- pressly promise to pay a particular sum. Collins v. Plielfs, 506 Vide ASSUMPSIT. INDORSEE. Vide ENDORSEE. INDORSEMENT. Vide ENDORSEMENT. 1NDORSOR. Vide ENDORSOR. IDLE PERSONS. i'he statute, tit. 88. c. 1. authorizing the VOL. III. .-, V INDUCEMENT. Facts stated by way of inducement to a material tra\iT-<-, Me not travcrsa- ble ; and the party, by joining i.ssue on the facts traversed, does net ad- 330 INDEX TO THE PRINCIPAL MATTERS. mit the truth of the Fowler v. dark, INFANCY. inducement. 231 A person may be liable for prosecuting, after he is of full age, a suit com- menced by him maliciously, and without probable cause, while an infant. Sterling \. Adams, 411 INFORMATION. 1. Every public show and exhibition which outrages decency, shocks hu- manity, or is contra bonus mores, is punishable at common law. Knoialcs v. State, 103 2. It an offence punishable at common law is averred in the information to be contra jormam statuti, such aver- ment may be rejected as surplusage, and will not Vitiate, ib. 3. An information for an exhibition of a show, must particularly state the circumstances in which the inde- cency, barbarity, or immorality of it consists, that the court may judge whether it is an offence within the stntute, tit. 116. s. 1. or at common law, ib. INJUNCTION. A decree of chancery having been reversed on the ground of fraud pr;ictist d in obtaining it, and the party injured restored to his former situ it ion ; and an action at law hav- ing been brought to recover dama- ges for the fraud ; chancery will not interpose to grant an injunction against that action, on an applica- tion, by the opposite party, for that purpose. Peck v. Woodbridge, 508 INSURANCE. 3. In a policy of insurance, the clause " prior in date" referring to other polic : es up.-.n the same risk, is equi- valent with pi ior in time- Brown v. Hartford Insurance Company, 58 2. An interest in the vessel and cargo gives an interest in the profits of the voyage, which may be the subject of insurance. Fotdick v. Norwich Marine Insurance Company, 108 3. A- insured 6,000 dollars, as profits on a cargo at and from Bordeaux to the West Indies. At the time of effect- ing the insurance, A. represented to the insurers that he had received advice from his correspondent at Bordeaux, of the vessel's arrival there, and of the state of the mar- ket, and that it was expected a car- go would be obtained, worth from 20,000 to 25,000 dollars. The ves- sel actually sailed with a cargo worth but 9,251 dollars. Held, there was no misrepresentation, ib. 4. In a case of an insurance upon profits, and a total loss, no abandonment is necessary, ib. INTEREST INSURABLE. An interest in the vessel and cargo, gives an interest in the profits of the voy- age, which may be the subject of in- surance. Fosdick v. Norwich Marine Insurance Company, INVENTORY. Vide IDLE PERSONS. JOINT CONTRACT. In an action on a joint contract against two, where one has suffered a de- fault, and the other has obtained a verdict, judgment must be entered up for both. Champlin v. Tilley, 307 Vide EVIDENCE, No. 16. JOINT ENDORSEMENT. Vide ENDORSEMENT, No. 5. INDEX TO THE PRINCIPAL MATTERS. 531 JOINT INTEREST. In an action of account, alleging that the plaintiff and defendant built a ship under an agreement tliat each should contribute an equal moiety of the expense, and receive an equal moiety of the avails; that she received a cargo, and was sent to Baltimore, by the ptaintitf and defendant; thence, by direction of the plaintiff and defend- ant, she went to London with a cargo on freight ; and afterwards per- formed several other voyages with a carg-') on freight, and was, at last, sold at Cadiz; and that the defend- ant receive'! more than his propor- tion of the ship, both of the voyages and the sale: H -Id, that the plain- tiff' and defendant were to be con- sidered, under this declaration, as joint owners of the ship, and jointly interested in all her voyages, from the time she was tmili until she was sold; and that in order to ad- just the accounts of the parties, it was proper for the auditors to in- quire into the earnings of the ship, and the losses incidental to the voyages. Hale v. Hale, 377 while such decree remains in force. Peck v. Woodbridgc, 30 2- In an action on a joint contract against two, where one has suffered a default, and the other has obtain- ed a verdict, judgment must be en- tered up for both. L'hamflin v. 7V/- tty, 307 3. An action sounding in tort against A. an inhabitant of the state of Rhode Island, and B an inhabitant of this state, being brought to the county court, A. did not appear, nor put in a plea, but B. appeared and pleaded to the action, and judgment was rendered, at the first term, in favour of the defendant; the plaintiff then appealed to the superior court, and there had judgment in his favour; Held, that the proceedings of the county court were void, and the judgment of tht superior court er- roneous, being rendered without regular process in the cause. Stoyel v. Wesicott, 349 4. A judgment which answers the is- sue, and on which execution was granted, will not be reversed, be- cause it did not say that the party should recover, and that execution should issue. Bradley v. Clark, 502 JUDGMENT, CONCLUSIVENESS OF. A record, that the defendant in an action of bcok debt appeared, and pleaded that he owed the plaintiff nothing, but that the plain- tiff owed him, and judgment that the parties were fully heard thereon, is conclusive against him, in another action on book. Lane v- Coot, 255 Vide JUDGMENT, No- 1 JUDGMENT. 1. A man cannot collaterally impeach, or c.tU in question, a judgment of a court of law, or a decree in equity, to which he is a party. No arip.ii, therefore, will lie, for obtaining a decree by fthc and forced evidence. JURISDICTION. 1. An action in favour of the endorsee of a promissory note, a citizen of one state, against the endorser, a citizen of a different state, may be brought before the circuit court of the United States, though the ma- ker and payee of such note are citizens of the same state. Cod- tuitc v. Glcason, 3 2. If a party is described as a citizen of the district of New-York, he is sufficiently described as a citizen of the ttate of New-Tort. Edwards \. Nicholt, 10 3. A. having a suit pending in court against B. the parties mutually agreed, that it should be called . and Milnnitted to arbitration, and that the costs which had '1 should arise thereon. INDEX TO THE PRINCIPAL MATTERS. should follow the award- The arbitrators met, and A. attended; but 13, revoked his submission. In an action on the case for uch revo- cation, it was held, that d was en- titled to recover as well the costs in the suit at law, as those under the submission; both or which, as stated m the declaration, amounting to mure than seventy dollars, gave the superior court jurisdiction of the cause. Rowley v. I'oung, 118 4. In an action of ejectment for lands in Connecticut, of which the defend- ant had disseisee 1 Uv j plaintiffs 18 months before, anu continued in pos- session, part of the plaintiff's were described as citizens of Vermont, and part as citizens of Connecticut, and the defendant was described as a citizen of .New-York, dwelling in Connecticut: Held, that the plaintiffs were not citizens of Vermont, nor the defendant a citizen of New-Tori:, within the constitution and laws of the United States , and that the cause, therefore, was not within the jurisdiction of this court, fiissell v. Morton, 281 5. The courts of the United States will not hold jurisdiction of a cause on the ground that one of the parties is an alien, unless he is stated to be such in express terms. Michaeieon. v. Denniton, 294 JURY. 1. It is a sufficient ground of arrest of judgment, that one of the jurors conversed about the cause, while it was on trial, with persons not of the jury. Bennct v. Howard, 219 2- If a jury separate after a cause is committed to them, and before they have agreed in a verdict, and after- wards return a verdict, it will be set aside. Lester v Stanley, 287 Vide etiam Nicolls v. Whiting, in note, ib. 3. Same points. Howard v Cobb, 310 4. But neither the jurors, nor the offi- cer to whose care they were com- mitted can be compelled to testify f& the fact of such separation r'A. 5. In tills case, the court appointed ati officer to take care of the jury, and charged him not to suffer them to separate, until they had agreed in a verdict, nor to speak to them, except to ask them if they were agreed. Anonymous, 311 6. A juror who had married the sister of a party in another cause depend- ing upon the same principles as the one on trial, excused from sitting, though his wife was then dead. Hartford Bank v. Hart t 491 LANDS. Vide FRAUDS AND PERJURIES, No. 1 LEGACY. Vide FOREIGN ATTACHMENT, No. 1. LETTERS OF ADMINISTRATION, Letters of administration granted un- der the authority of another state are of no avail in this. Piley v. Si- ley. LETTERS TESTAMENTARY. 1. Letters testamentary issued under the authority of one state are not available in another. Champlin v. Tilley, 303 2. But if to an action brought by an executor, on a cause of action ari- sing in the life-time of the testator, the defendant plead the general is- sue, the plaintiff' cannot be required on the trial, to produce any letters testamentary, ib. .LIMITATIONS, STATUTE OF. An actual ouster, and adverse posses- sion, continued uninterruptedly for fifteen years, will bur the original proprietor of his right of entry, INDEX TO THE PRINCIPAL MATTERS. 533 whether the ouster and adverse possession were by the same per- son or persons, for the whole term, or by different persons for diHi-rent portions of it. Fanning v. IVilcox, 25S LUNACY. Vide XON COMPOS MENTIS. M MAKER. Tide PROMISSORY NOTES. MARINERS. The master of a vessel has a right, du- ring the voyage, to punish his mari- ners, by corporal chastisement, for disobedience to any of his reasona- ble commands, and for insolence, and other offences. Michaelton v. Dennison, 294 MASTER AND APPRENTICE. ride COVENANT, No. 1. MASTER OF A VESSEL. The master of a vessel has a right, du- ring the voyage, to punish his mari- ners, by corporal chastisement, for disobedience to any of his reasona- ble commands, and for insolence, and other oflences. MichueUon v. Dcnniton, 294 MISREPRESENTATION. J. insured 6,000 dollar*, as profits on a cargo, at and from Bordeaux to the tVett Indict. At the time of cflcrt- ing the insurance, A. represented to the insurers, that lie had r-n -ivt d advice from liis correspondent at Boricaux, of the vessel's arrival there, and of the state of the mar- ket, and that it was expected a car- go would be obtained worth from 20,000 to -25,000 dollars- The ves- sel actually sailed with a cargo worth but 9,251 dollars. Held, there was no misrepresentation. Fosdict \. Norwich Marine Insurance Company, 108 MORTGAGE. Upon a bill of foreclosure by a mort- gagee holding separate mortgages for distinct debts, chancery \vili de- cree a foreclosure, upon the failure of the mortgag >r to pay both debts, and will not make separate decrees for each debt. Phelps v- Ellsworth, 397 N NECESSARIES. 1. Husband and wife were divorced by a decree of the legislature ; alimony was allowed her, which was to be in lieu of all claims of dower; and she was constituted sole guardian of two of their infant children; held, that the father was liable for education and support of such chil- dren, furnished, in the first place, by her as gtu-rdian, and afterwards by a stranger, to whom she had been married Staunton v. Wiltson, 37 2. Where an infant child elopes from his father for fciir of personal viol* nee and abuse, and cannot witli safety live with him, the father is liable tor ne- cessary support and education fur- nished to such child by a btranger, il>. 3. What articles are necessaries must depend upon the circumstances of the party for whom they are furnish- ed, and when those circumstances are ascertained, tin- court will only instruct the jury as to the clatset ol" articles which are to be considered ib. l will lie for necessaries furnished to an infant, without a re- 334 quest from the party liable, or a promise to pay for them. Staunton tjutrbL irum uie pany uauie, or a promise to pay for them. Staunton v. WiUsan, 37 NEGLIGENCE. An attorney may be liable for a debt lost by his negligence, but he is not of course liable for the loss of the evidence of that debt. And in a suit brought against him for such loss, he m.y show th>it the plaintiff had another remedy for the reco- very of his debt, which he lias suc- cessfully pursued. Huntington v. Rumnilt, 390 NEW TRIALS. In 1707, the General Assembly of Con' necticut had not so far parted \vith their judicial authority as to pre- clude them from awa.dmg new trials in subordinate tribunals. Ha- milton v. Hempstead, 332 NEXT OF KIN. By the statute of distributions, previous to the revision in 1784, real and per- sonal property were placed upon the same footing ; and the term " next of kin" had the same mean- ing', whether used with reference to one or the other. When used with reference to real estate, it never meant those only of the blood of the frst purchaser. Hillhousev. Chester, 166 NON COMPOS MENTIS. A man may show that he was non com- pos mentis in avoidance of his deed. Webster v. Woodford, 90 NOTICE. 1. A. and B. of New -York, and C. of Norwich, in Connecticut, having been partners in trade, dissolved their partnership, and published notice of such dissolution, for several weeks successively, in two newspapers, one printed at Norwich, which was their usual place of doing business, and the otner ut New- London, in the vi- cinity- h. atterwaids endorsed a bill of exchange, in Netv-Yort, in the company name ; but whether the endorsee had, or hud not, actu- al notice of tne dissolution did not appear; nor did it appear that he had ever been a correspondent of the company. Held, that these facts constituted reasonable notice to him, and to every other person not a c^r- respundent of the company. Moviutt v. rLowiand, 353 2. The facts which are supposed to constitute notice of a dissolution of partnership being ascertained, it is a question ol law whtthe: the no- tice be reasonable, or not, ib. 3. In the assignment of a book debt, no- tice to the debtor is indispensable ; for, until such notice is given, the property remains in the assignor's possession, and is liable ior his debts. Woodbriuge v. Perkins, 364 4. Putting a letter into the post-office, is a fact from which the jury may infer, that the person to whom it was addressed had notice of its con- tents. ' Hartford Bank\. Hart, 492 5. A. having made a conveyance of land to 2i. and B to C : and D. a cre- ditor of A., having attached the pre- mises, in a suit against /?., and cau- sed a copy of the attachment to be left in the town-cleik's office, be- fore the conveyance from B 10 C-, such copy is notice to C, and to all the world, of D ! s claim to the pre- mises. Rathbone v. Xiley, 50o Vide USURY, No- 2. o OATH. Vide. AVITNESS, No- .3- INDEX TO THE PRINCIPAL MATTERS. 535 OFFENCE. 1. Every public show and exhibition which outrages decency, shocks humanity, or is contra bonos mores, is punishable at common law. Knovilet v. State, 103 2. If an offence punishable at common law is averred in the information to be contra Jormam statuti, such averment may be rejected as sur- plusage, and will not vitiate, Hi. OUSTER AND ADVERSE POS- SESSION. An actual ouster, and adverse posses- sion, continued uninterruptedly for fifteen years, will bar the original proprietor of his right of entry, whether the ouster and adverse possession were by the same per- son or persons, for the whole term, or by different persons, for different portions of it. Fanning v. Wilcox, 258 PARENT AND CHILD. Where an infant child elopes from his father, for fear of personal violence and abuse, and cannot with safety live with him, the father is liable for necessary support and education furnished to such child by a stran- ger. Staunton v. Wtllson, 37 PARTNERSHIP. 1. In an action against A. and B., as partners, on a contract executed in the partm rship name, A. suffered a default, und B. pleaded the general issue : Held, that letters written by A in the parin r.-lnp name could not be read in evidence by li. to show ihat he was not a partner with A. Champlin v. Tilley, Ju6 ? In such cane, an account book, con- taining entries made by A. and B. may go to the jury as evidence of partnership, ib. 3. A. and B. of Nno-1 W, and C. uftfor- nich, in Connecticut, having been partners in trade, dissolved their partnership, and published notice of such dissolution, for several weeks successively, in two newspapers, one printed at Norwich, which was their usual place of doing business, and the other at New-London, in the vicinity. B. afterwards endorsed a bill of exchange in New-York, with the company name; but whether the endorsee had or had not actual notice of the dissolution did not ap- pear ; nor did it appear that he had ever been a correspondent of the company. Held, that these facts constituted reasonable notice to him, and to every other person not a cor- respondent of the company. Movmtt v. Holland, o53 4. The tacts which are supposed to con- stitute notice of a dissolution of partnership being ascertained, it is a question of law wluther the no- tice be reasonable, or not, ib. PAUPER. There being two parishes in the same town, a pauper resided in the first four years ; he then removed to -he second, and resided there six months, when it was incorporated into a distinct town; he remained there after the incorporation four yc-urs and six months, and then went awuy- Hi-Id, that he gained no le- gal settlement in the town last men- tioned. Inhuhitarite of Oxford \. In- habitants of Woodbrblge, 224 PAYMENT. Payment of a bond will not be pre- sumed from lapse of time alone within a shorter |>eriod than twenty years. Cattle v. Payne t 289 PLEADING. 1. A declaration for labour done, or services performed, generally, is good. Kdv:iirdt v. Niclioli, 16 2. Usury may be given in evidence un- der the general issue. Culver v. Ro- binton, 68 36 INDEX TO THE PRINCIPAL MATTERS. 3. In such case the defendant must give the plaintiff notice of the defence. Culver v. JtoUinson, 68 4. A man may show that he was non compos mentis, in avoidance of his deed. Webster v. Wooaford, 90 3. If an offence punish auli. at common law is averred in the iiiturmaiion to be cur.trajormatn statuti, such aver- ment ma> be rejected as surplusage, and will not vitiate. Knovles v. State, 103 6. An information for an exhibition of a show, must particularly state the circumstances in which the indecen- cy, barbarity, or immorality of it consists, that the court ma} judge whether it is an offence within the statute, tit. 116. s. 1. or at common law, ib. 7. Facts stated by way of inducement to a material traverse, are not tra- versable; and the party, by joining 1 issue on the fcts traversed, does not admit the truth of the induce- ment. Fowler \. Clark, 231 S. $>U(ere, whether after aplt-a of no avard, a rejoinder of a revocation is a de- parture ? ib. 9. An allegation in an indictment, which is not impertinent or foreign to the cause, must be proved, though a prosecution for the same oftence might be supported without such allegation. United States v. Porter, 283 10. In an action on a promissory note for 80 dollars, to be paid in good West-In- dia rum, sugar, or molasses, at the election of the payee, vii'.fiin eight days after aate, h was held to be unne- cessary to aver that the payee made his election, and gave notice thereof to ihe promissor, as the latter was bound, at all events, to make pay- ment in one of the articles specified, \vithin eight days, and on failure, became immediately liable. Town- send v. Wells, 327 11. An allegation that words charged as slanderous were known to the party and to the public in general to be true, is a sufficient alleg .tion of their truth. Sterling v Adams, 411 12. In an action for a vexatious suit, tl.-e plaintiff having stated, that in the original suit, he recovered his costs, alleged, that he was most unjustly imprisoned on saia suit, for the space of twenty four hours, and in defending the same expenuea large sums oj mo- ney, to tvit, the sum <>J 200 dollars in employing counsel to defend ; also the sum of^uO dollars in paying witnesses, ana maintaining them, when attending on Hit trial; also the sum of 100 aoi- lars in making various journeys t procure testimony, and in attending OK the trial i without showing that such damages exceeded the costs recovered : Held, this was a suffi- cient allegation of damages. Ster- ling v Adams, 411 13- If a plaintiff sues or pleads by conserva- tor, and the record is in usual form, and judgment in his favour, it will be good; and those words will be re- jected as surplusage. Wooaford v. Webster, 472 POSSESSION. Vide TRESPASS, No. 1. 3. POST-OFFICE. Vide EVIDENCE, No. 21. POWER. 1. A power to two executors to sell and dispose of an estate, in such way andmanner as they shall judge most beneficial to the detisees, will not give one of them a power to sell, nor will it authorize one or both to enter upon and occupy the estate. Bull v. Bull, 2. A power to executors to sell and dis- pose of lands devised to the chil- dren of the testator, is a power to a- II only, and ceases upon the death of one of the devisees. Seymour v. Bull, 338 PRACTICE. 1. A motion for the appointment of a INDEX TO THE PRINCIPAL MATTERS. 537 guardian to an infant party, must be in writing, and must state the name of the person proposed, .nd his con- sent to be appointed. Hartshorn v. Sanford, 279 3. An affidavit in support of a motion to put o i a cause tor the absence of a witness, cannot be explained by matters extrinsic. Smith v- Barter, 280 3. Letters testamentary issued under the authority af one state, are not available in another. Champlin \. Tilley, 303 4. But if to an action brought by an ex- ecutor, on a cause of action arising in the life-lime of the testator, the defendant plead the general issue, tke plaintiff cannot be required, on trial, to produce any letters testa- mentary, ib. 5. In an action on a joint contract against two, where one has suffered a default; nd the other has obtain- ed a verdict, judgment must be en- tered up tor b ilh. Ib o'J7 6". After an affidavit in support of a mo- for the ecintinuance of a cause, on the ground of :he absence of a material witness, has been made, the o ( >p:iu- party may make a court i. -r affidavit, stating any circum- stances th.it re Her it impossible, or improbable, that the evidence of the witness can be obtained within a > liable time ; but such countcr- afli'lavit must not deny the m atei i;J- it\ ot the cxidenre. Anonymous, 308 7. An .mi in .--'undmg in tort against A an inhabitant of the state of Jihode- Island, and B. an inhabitant of this -.ute, being brought to the county court, A did not appear, nor put in a plea, but ti .ip c.uvd and led to th.- ! judgment iendi red, at the fir.it U ; m, in fax our of tin- defendants; the plain- tift then appealed t'l the superior ,ri, and thei- h.nl judgment in hi-, fax our : held, that tin- pmc ced- ing* of the county court were void, and the judgment of the superior coin t crroii'-ou-., being rei, without regular process in the cause. Stoyel v. Wettcott, 3. Under the rule for the defendant's cou Vo.. HI. fence, it is sufficient for the counsel to say, that his client has instructed him to detend, and he expects the cause will be tried, unless previous- ly settled. Terry \. Cupen, 495 9. A judgment which answers the is- sue, and on which execution was granted, will not be reversed be- cause it did not say that the party should recover, and tliat execution should issue. Bradley v. Clark, 502 PROBABLE CAUSE. 1. If in an action of slander the defend- ant admits the speaking of the words, but justiiies on the groimd that they were true, he does not thereby adinit probable cause, so as to preclude him from showing the want of it, in an action for a vexa- tious suit. Sterling v. .iJaais, 411 2. A person may be liable f >r prosecuting, after he is of full age, a suit com- menced by him maliciously, and without probable cause, while an infant, ib. PROBATE. ride LETTERS OF ADMINISTRATION- LETTERS TESTAMENTARY. PROCESS. 1. Serving a summons on any individual ni'. i corporation is not suilicient no- tice to hold the corporation to trial. Man.! v. Bull, 441 2. And the individual summoned may plead the want of notice to the cor- poration, it. PROFITS. 1. An interest in the vessel and CM go gives u:; interest in the profits of the !in -ii MI.I\ be the subject of ir, .ii;-.inre. v. MM \vich M. trine lnsuri.n:e (,'tiinf>iiny, 108 2. In cii.se of an insurance up,. n ;!<. liis, and a total lus-, ::j is / INDEX TO THE PRINCIPAL MATTERS. PROMISSORY NOTES. I. An action in favour of the endorsee of a promissory note, a citizen of one state, against the endorsor, a citizen of a different state, may be brought before the circuit court of the United States, though the maker and payee of such note are citizens of the same state. Codtuise v. Glea- son, '2. Though a note is void as against the maker, it may be good against an endorsor, in favour of an endorsee, who took it, relying upon the en- dorsement- Ib. 12 3. Tne contract made by endorsement extends to all future endorsees, even where notes are not negotiable, ib. 4. Whether, in an action by the endor- see ot" a negotiable note against the maker, a discharge by the payee shall be available as a defence, un- til it be shown by the maker that the receipt was given before the endorsement was made ? Stuart v. Greenleaf, 311 5. In an action by the endorsee of a pro- missory note against the defendant as endorsor, on the ground, that though the endorsement was a for- gery, yet lie had made it his own ; and it having been proved that his name had been forged on other notes discounted at the bank, of which he had had notice, he cannot be permit- ted to prove that the names of other persons had been forged under simi- lar circumstances, of which they had had notice. Hartford Bank \. Hart, 493 6. Where there are several endorsers of a promissory note, they are, in general, liable to each other, in the order of their respective endorse- ments. Talcott v. Cogswell, 512 T. A- being indebted to B. by note, and proposing to pay part by a new note, makes his note payable to C-, and then procures C-, and afterwards D. to endorse it for A's accommoda- tion ; the note becoming due, after having been accepted by B. and dis- counted for him at the bank, A. fails to take it up, and C. and D. after notice of such failure, come sepa- rately to the bank, and take it up, each paying a moiety. In an action, brought more than three years af- terwards, by D. against C to reco- ver back the money paid by D. on the note, these circumstances fur- nish sufficient evidence that the endorsement by both was joint, and each having paid what in that case each would be compellable to pay, no recovery can be had. Talcott \: Cogswell, 512 R REGULiE GENERALES. 1. Rules of practice adopted May 26th, 1807, 28 2. Rules adopted June term, 1808, 29. 275 RELEASE. A. conveyed to B. with covenants of seisin and warranty, a piece of land containing thirteen acres, bounded north and south by undisputed limits, east by the land of C., and west by that of A. In an action of trespass quare clausum fregit, brought by B, against C. to which the defendant pleaded title, claim- ing that the dividing line between his land and that conveyed to the plaintiff was west of the locus in + quo, A. was offered as a witness to disprove the defendant's claim, af- ter a release from the covenants in his deed had been executed by the plaintiff to him: Held, that A. was an incompetent witness, being inte- rested to establish the dividing line as far eastward as possible, and that the release did not restore his com- petency, as the covenants in his deed run with the land. Abby v. Good' rich, 433 REPRESENTATION. A. insured 6,000 dollars, as profits on a cargo, at and from Bordeaux to the INDEX TO THE PRINCIPAL MATTERS. Wctt Indies. At the time of effect- ing the insurance, .4. represented to the insurers, that he bad received advice from his correspondent at Bordeaux, of the vessel's arrival there, and of the state of the mar- ket, and that it was expected a car- go would be obtained worth from 20,000 to -25,000 dollars. The ves- sel actually sailed with a cargo worth but 9,251 dollars. Held, Ihere was no misrepresentation. Fosdict v. Norwich Marine Insurance Company % 108 REVOCATION. Vide JURISDICTION, No. 3. RULE OF DAMAGES. In an action of trespass, for taking and detaining a ship, it was held, that the plaintiff' was entitled to give in evidence a process in replevin by C- a third person, a replevin bond by D- and .,as sureties, and a judg- ment thereon in favour of the de- fendant, and to prove that he, the plaintiff, had indemnified those sureties, for the purpose of showing that he became liable to the defend- ant for the amount of his claim against C., and that this sum ought to be the rule of damages. Bird v. Clark, 272 RULES. Vide RECUL& GEKERALES. SEAMEN. The master of a vessel has a right, during the voyage, to punish his mariners, by corporal chastisement, for disobedience to any of his rea- sonable commands, and for inso- lence, and other offences. Michael- . Denniton, 294 SEISIN. The maxim seisina fatit stifitem has never been adopted in this state; but on the death of the ancestor, the descent is cast upon the heir, without any reference to the i.ctual seisin of such ancestor. Milihoute v. Chester, 166 SELECTMEN. Vide IDLE PERSONS. EVIDENCE, No. 6. SERVICE. 1. Serving a summons on any private individual of a corporation is not sufficient notice to hold the corpo- ration to trial. Jf and v- Bull, 441 2. And the individual summoned may plead the want of notice to the cor- poration, ib. SETTLEMENT. There being two parishes in the same town, a pauper resided in the first four years; he then remoM-d to the second, and resided there six months, when it was incorporated into a distinct town; he remained there after the incorporation four years and six months, and then, went away. Held, that he pained no legal settlement in the town last mentioned Inhabitants of Oxford v. Inhabitants of Woodbridge, 224 SHOW. Every public show and exhibition which outrages decency, shocks hu- manity, or is contra bonot mores, is punishable at common law. Knoviies v. State, 103 SLANDER. An allegation that words charged as slanderous, were knovm to the party 540 INDEX TO THE PRINCIPAL MATTERS. and to the public in general, to be true, is a umVk-:r .ill :. Oil of their truth. Sterling v. Adams, 411 STATUTES OF CONNECTICUT. 1. An information for an exhibition of a show, must particularly state the circumstances in which the inde- cem\ i ;u !>ar;r. 01 immoraluy of it - consists. that the -ourt may judge whr 'her i is an offence within the statute, title 116. section 1. or at common law. Knmsles v. State, 103 2. The statute, tit. 88 c 1. authorizing 1 the selectmen to take into their care and custody the persons and pr< " -<\ '.nini>-, whether used witli refer- ence to one or the other. When used witli reference to real estate, it never meant those only of the bio*. ;i of t he first purchaser. Hi!i!:oitse v. Chester, 166 Vide BOOK DEBT, No. 1. SETTLE- MENT LIMITATIONS, STATUTE OF JURY, No. 2 ESTATE-TAIL. JUDGMENT, No. 3. EviPENCE, No. 20. STATUTES OF THE UNITED STATES. Vide CrRcuiT COURT OF THE UNITED STATES, No 1. COPY-RIGHT, Noi 2. BANKRUPT. EMBARGO. SUCCESSORS. \ idc CORPOU.YTI ON, No. 3. Kelivgg, in note, SUMMONS. Bierre v. 4 5 5 1. Serving a summons on any private individual of a corporation is not sufficient notice to hold the corpo- ration to trial. Rand v Bull, 441 2. And the individual summoned may plead the want of notice to the cor- poration, ft SUPERIOR COURT, How constituted, 27 28 Vide JURISDICTION, No. 3. SUPREME COURT OF ERRORS. How constituted, 3.7 28 SURPLUSAGE. 1. If an offence punishable nt common law is averred in the information to be contra formam statuti, such averment may be rejected as sur- plusage, and will not vitiate. Knovsles v. State, 103 2. If a plaintiff Mf,? or pleads by conserva- tor, and the record is in the usual form, and judgment in his favour, it will be good ; and those words will be rejected as surplusage. Woodford v. Webster, 472 TIME. In a policy of insurance, the clause INDEX TO THE PRINCIPAL MATTERS. 541 " prior in date" referring to other policies upon the same rik, is equi- v.ilf nt will) prior in time Urou-n v. J/artford Insurance Company, 58 TOTAL LOSS. In ra^e of insurance upon profits, and a votal loss, no abandonment is ne- cessary. Fosdick v. Norwich Ma- rin. Insurance Company, 108 TOWN, INHABITANTS OF. Vide EVIDENCE, No. 4, 5. TRAVERSE. Facts stated, by way of inducement to a material traverse, are not travcr- sable ; and the party, by joining is- - sue on the facts traversed, does not ; t the truth of the inducement. Fowler v. Clark, 231 TRESPASS. 1. The owner of personal property, though not in possession, may main- tain trespass against a stranger. Bitd v. Clark, 272 2. In trespass vi et armis, the damages are not limited by the value of the properly tiestrojcd. Edwards v. the defendants' use, the de- claration stated, that an execution had been issued against the defend- ants, inhabitants of the town of Newtotun, for taxes ; that property had been taken thereon, for which the plaintiff had given his receipt; and that in consequence thereof, he had been eventually compelled to pay this money in satisfaction of said taxes. At the trial, evidence was produced of an execution against the collector. Held, that this was no material variance. Beers v. Bots- ford, 159 . Where the declaration alleged an undertaking in consideration of a contract entered into by the plain- tiff to build a ship, and the ei-idence was of a contract to finish a ship partly built, it was held, that the variance was fatal. Smi'-h v- Bar~ ker, 312 VERDICT. Vide JUIIY, No. 2, 3 VEXATIOUS SUIT. 1. If in an action of slander, the de^ fendant au:nii.s the speaking of the words, but justifies on the ground that the} were true, he (iocs not thereby admit probable cause, so as to preclude him from showing the want of it in an action for a vexa- tious suit. Sterling v. Adams, 411 2. A person may be liable for prosecu- ting, after he is of full ;tge, a suit commenced by him maliciously, and without probable cause, while an infant, ib. 3 In an action for a vexatious suit, the plaintiff having stated, that in the original suit, he recovered his costs, allegt-d, that he was most unjustly imprisoned on said suit, for the space of twenty-four hours, and in defending the same expended large sums of mo- ney, to viit, the sum of 200 dollars in employing counsel to defend; also the sum of 200 dollars in paying witnesses, and maintaining them