Volume 16 — Connecticut Reports

<p>A bequest of “my East-Haddam, bank stock,” is a specific legacy.</p> <p>A specific legacy is not to be taken for the payment of debts, until the general fund is exhausted.</p> <p>The testator gave to B, described in the will as the friend of his mother, and for many years a part of his father’s family, a life estate in his East-Haddam bank stock, and directed that the notes secured upon said stock should be paid by his executor, so far as it could be done consistently with his will; providing also, that said stock should be in discharge of his indebtedness to her, if enough for that purpose; and estimating his cotton goods as about enough to pay his debts. After giving sundry specific legacies, he disposed of the residue of his estate to C and her son D, providing that C should have exclusively the dwelling-house where she then lived, and that after her death, the factory estate should be wholly the estate of D. It appeared, that just before the execution of his will, the testator became indebted to the East-Haddam bank, by two notes, amounting to 4600 dollars, collaterally secured by a pledge of said bank stock, with a power of sale; which notes were unpaid, at the time of his death; that his debt to B was 1530 dollars; that his other debts amounted to 7143 dollars; that the value of the bank stock was 6320 dollars; that the value of the cotton goods was 2400 dollars; and of his other personal property, 6581 dollars. Held, 1. that B took the bank stock subject only to the extinguishment of her debt against the estate, and that the machinery in the factory, as well as the other personal estate not specifically given, was to be applied to the satisfaction of the debt to the bank, before the bank stock could be resorted to for that purpose; 2. that parol evidence as to the condition of the testator’s property, was admissible to explain a latent ambiguity; but, 3. that the admission or exclusion of such evidence, in this case, would not vary the result.</p>

This was a bill in chancery, brought by Charles Gould, as assignee of Deforest Manice, against Charles F. Stanton and others, late joint owners with said Manice of the ship Charles Adams and the brig Uxor, seeking an account of the earnings of these vessels on a whaling voyage to the Falkland islands in the Southern Ocean.

This was an action brought by the indorsee against the indorser of a promissory note; tried at Norwich, March term, 1843, before Hinman, J. The defendant had filed his complaint, on the second day of the session of the court, pursuant to the statute against usury, alleging that the note on which the suit was founded, was given on a usurious consideration.

IN ERROR. This was an information against Oliver H. P. Lewis for burglary, alleged to be the second offence.

This was an action of assumpsit, in several counts, founded on the following writing signed by the defendant: “This certifies, that the undersigned agrees to pay the sum of fifty dollars to Amos E. Denison, [the plaintiff] in consideration of personal friendship, and with a view to facilitate the settlement of an unhappy difficulty now existing between the heirs of the late Amos Denison, deceased. Stonington, May 19th, 1836.

IN ERROR. This was an action of book debt, brought originally by Tweedy and Barrows against Burgess, before George Perkins, Esq., a justice of the peace, at his office in the town of Norwich,… Held: 1 Stra. 684. S. C. 2 Ld. Raym. 1414. 2 Wms. Saund. 101. q. 3. That the adjournment did not render the judgment invalid. The defendant was cited to appear at the time and place designated, and had a legal opportunity to be heard; and according to his own allegation, he did appear.

IN ERROR. This was an information, filed in the county court, against Rufus Riley, charging, that he, on the 8th day of September, 1841, escaped from the gaol in Norwich. The prisoner had been convicted, at the June term of the county court in 1841, of a breach of the peace, and been sentenced to be imprisoned sixty days in the gaol at Norwich, and pay the costs, taxed at 62 dollars, 34 cents.

This was a grand-juror’s complaint, dated the 21st of April, 1841, against Elias Brown, brought originally before a justice of the peace, alleging, that there was, on the 1st of January, 1840, and for many years before had been, a public highway, leading from the town of Westerly, in the state of Rhode-Island, and from the borough of Stonington, towards and into the town of Groton, through the town of Stonington, for all the citizens of the state, on foot and with their…

This was a writ of partition, in which the plaintiffs demanded, that the defendants should apart, divide and set out to them, one moiety or half part of a certain tract of land, containing about 40 rods, with one-half of a dwelling-house and barn, and the whole of a certain store, thereon, lying in Stonington borough, in the town of Stonington, bounded, &c. The declaration alleged, that the plaintiffs and defendants held said tract of land together and undivided, as tenants…

This was an action of trover for a quantity of tobacco. The cause was tried at Hartford, September term, 1843, before Waite, J. On the 10th of February, 1842, and previously, the plaintiffs were merchants, transacting business as partners in the city of New-York, under the firm of Thompson & Adams; and, at the same time, Andrew Denison and Joseph W. Denison were doing business in Suffield, in this state, where they both resided, as partners, under the firm of A. & J. W.…

This was an action of replevin for certain window sashes, doors and boxes of glass, attached on a writ of attachment, in favour of the present defendants, against Samuel Whitmarsh. The defendants pleaded, that the goods in the plaintiff’s declaration mentioned, were not, at the time they were attached, or at the time of suing out said writ, the proper goods and estate of the plaintiff.

IN ERROR. This was an action of book debt, brought by Ebenezer Seeley and Samuel Glover, Esqrs., to recover the fees and charges for their services and expenses, as counsellors and attorneys at law, in a certain suit instituted and conducted to final judgment, by them, in the superior court of the city of New-York, in which suit the present defendant was plaintiff, and one Thomas Smith was defendant.

This was an action on the case for the obstruction and diversion of the water of Farmington river, to the injury of the plaintiff. Held: that the land in question had never been taken, and could not, therefore, come within the jurisdiction of the commissioners. See 5th sect. of 1st charter. Priv. Stat. 302. But it may be said, that these waters have not been surveyed. We answer, in the first place, that there can be no survey of the elements.

This was an action of assumpsit. The declaration alleged, That on the 15th of June, 1836, the plaintiffs and defendant met together and adjusted a certain account, which was, at that time, open and… Held: that the plaintiffs’ books could not be received as evidence of that fact.) The defendant thereupon objected, that the proof did not support the declaration, and requested the court so to instruct the jury. This the court did not do.

IN ERROR. This was a bill in chancery, brought by Joseph Spencer and others against Horace Pitkin, to obtain from the defendant the sums to which they were respectively entitled out of a certain fund in his hands.

This was an action of trover, for sundry articles of personal property, promissory notes and moneys, which the plaintiff claimed as administrator of Richard Adams, deceased. The cause was tried at Hartford, January term 1844, before Williams, Ch. J. Richard Adams was born and brought up in this state ; but had long done business in the city of New-York, and as master of a vessel, had commenced his voyages, by sailing from that port.

IN ERROR. This was a bill in chancery to obtain the benefit of certain articles of household furniture.

This was an action of trespass, with a count in trover, for certain tin machines, which, the plaintiff claimed, were unlawfully taken by the defendant, and converted to his use.

This was a bill in chancery for an injunction against the defendants, restraining them from the further use of the ferry between the towns of Hartford and East-Hartford. The defendants, in their answer, stated certain matters in denial or avoidance of the claims of the plaintiffs.

This was an information in the nature of a quo warranto, brought in June, 1844.

This was an appeal from a report of commissioners on the estate of Elias Brown, deceased, represented insolvent. The appellant complained of the doings of the commissioners in rejecting her claim against such estate, amounting to 896 dollars. She was the widow of the deceased, and claimed to be a creditor of his estate, by virtue of the following writing, signed by him: “Farmington, October 15th, 1825.

This was an action of trespass, and trespass on the case; there being two counts of the former description, and one of the latter. It will be sufficient for the present purpose, to state the second count in trespass.

This was a scire-facias, in a process of foreign attachment, in favour of Lemuel A. Bigelow, against E. Grove Lawrence, as the trustee and debtor of Nathaniel Stevens. The cause was tried at Litchfield, August term, 1843, before Storrs, J. The plaintiff commenced the process, by an action of debt on judgment, in his favour, against Stevens; a copy of the writ, dated August 14th, 1839, being duly left with the present defendant.

This was an action on a bond, dated June 27th, 1842, executed by the defendants, to the plaintiff, as sheriff of Litchfield county; the condition of which required, that John P. Knibloe, one of the defendants, who had been committed to the Litchfield county gaol, by virtue of an execution in favour of Harry Lockwood, against said Knibloe and Jethro Delano, should remain in said gaol, or the limits thereof, until he should be lawfully discharged.

This was an action of assumpsit. The declaration contained five counts.

This was an action of indebitatus assumpsit for money had and received by the defendant for the plaintiff’s use.

This was an action of book debt. The cause was tried, on the general issue, at Litchfield, February term, 1844, before Waite, J. On the trial, the plaintiff claimed to recover his wages, as a labourer for the defendant, from the 9th of November, 1841, to the 26th of June, 1842.

This was an action of assumpsit. The declaration contained five counts. The three first of these were demurred to, and were reserved, by the court, for a separate consideration.

This was a bill in chancery, to foreclose mortgaged premises. Three of the defendants, viz., William C. Sterling, Albert Moore and Silas B. Moore, filed a cross-bill; and the parties were heard on such bill and cross-bill, in relation to the facts in controversy, before a committee appointed by the court for that purpose. An abstract of the facts found by that committee, will furnish a sufficient statement of the case.

This was an action of trover for a quantity of pig iron. The defendants pleaded the general issue, with notice of special matter to be given in evidence as a justification.

This was an action of ejectment for three parcels of land in New-Canaan. The cause was tried, on the general issue, at Fairfield, February term, 1843, before Williams, Ch. J. The plaintiffs claimed title to the premises, as heirs at law of Ezra Seymour, deceased. The defendants held under the Episcopal Society of New-Canaan, who claimed title as devisees of said Seymour.

IN ERROR. This was an appeal from a decree of the court of probate for the district of Stamford, passed on the 25th of March, 1843, opening the commission of the commissioners on the estate of Mills Lockwood, deceased, represented insolvent. The decree appealed from was passed on the petition of Edmund Lockwood, claiming to be a creditor of said estate; and the appeal was taken by Abel Reynolds, the administrator.

This was an action on a probate bond, executed by the defendants, executors of Jesse Richards deceased, to Benjamin Isaacs, Esq., then judge of probate. The action was prosecuted, by the present plaintiff, as his successor in office. The bond and condition were in the form prescribed by statute. The defendants pleaded performance generally.

This was an action of trespass. The declaration contained two counts. The first charged a pulling down and destruction of a certain shop or out-house. The second alleged the breaking into and entering upon the land of the plaintiff, and pulling down and destroying the said shop.

This was an action of account. The declaration contained several counts. Held: and still holds, the title so conveyed to him, for the purposes of the mortgage.

This was an action of trover for certain cows, oxen, carts and other articles of personal property, against Ebenezer Smith, Jacob Dayton, jr. and David D. Husted.

This was an action of trespass de bonis asportatis. The defendant justified the taking, by a special plea in bar; to which there was a general demurrer; thus presenting the whole case. It is briefly this. In the action brought by The Housatonuc Rail-Road Company v. The City of Bridgeport, which came before this court, on a writ of error, (15 Conn. R. 475 to 503.) final judgment was rendered in favour of the original plaintiffs, for the amount of the bond and costs.

This was an appeal from a decree of probate, adjusting the advancements made by Azariah Meeker, deceased, to his children. By that decree, it was decided, that the following sums were received by the persons whose names are set against them respectively, as advanced portions, viz. Alfred Meeker, 1000 dollars; Burr Meeker, 1000 dollars; Daniel Meeker, 1000 dollars; Harry Meeker, 2000 dollars.

This was a bill in chancery, brought by Leman Church and Henry Dutton, Esqrs., commissioners on the Housatonuc, Rail-Road, against Jesse Sterling, seeking the payment to the plaintiffs of certain moneys, and a conveyance to them of the legal title to a certain parcel of land. The corporation of the Housatonuc Rail-Road Company and William P. Burrall, Esq., its president, were also cited in, as defendants.

IN ERROR. This was a bill in chancery, brought originally to the county court, for the specific performance of an agreement. The facts found by the court present the following case.

This was a bill in chancery, praying for a discovery, an account and an injunction. Held: and which expired before the defendant resumed the use of his machine; and that it was in reference to Emmons’ patent, that the defendant in the writing said, that he was satisfied that he had no right to run his machine; this being not inconsistent with the. language pf the parties, and being in truth what the defendant intended: 3.…

This was an action on the case, to recover damages for injuries done to the plaintiffs’ steam-boat Belle, by the defendant’s steam-boat New-Haven. The defendant pleaded in abatement, that there was no any such corporation established or existing as The Haven Steam-Boat and Transportation Company; on which issue was taken. The court found the issue in favour of the plaintiffs, and thereupon ordered the defendant to answer over.

This was an action for the support of a pauper; tried, on the general issue, at New-Haven, October term, 1843, before Church, J. In the year 1800, Joel Tryon, then a settled inhabitant of the town of Southington, in this state, went, with his family, to reside in Berlin, and continued constantly to reside in that town until the year 1809; and the defendants claimed, that during all this period, he supported himself and family, and was not chargeable to any town, in…

IN ERROR, This was a writ of replevin, brought by Chester Alling against Charles T. Shelton, to obtain the possession of goods belonging to the plaintiff, which had been taken, by a writ of attachment in the defendant’s favour, against Leverett Alling. In connexion with the writ of replevin there was a count in trepass.

This was an action of assumpsit, by the plaintiffs, as indorsees of a promissory note, against the defendants, as the indorsers thereof.

This was an action of trespass for taking a certain carriage.

This was an indictment for an assault with intent to murder John B. Dwight.

This was an action of ejectment for a parcel of land in Branford; tried, on the general issue closed to the court, at New-Haven, January term, 1844, before Hinman, J. The plaintiffs, in support of… Held: that the only consideration, which will support a covenant to stand seised, is the consideration of blood and affection, it will appear by the deed itself, that that consideration existed here.

<p>The master of a vessel is not the general agent of the owners; but his authority is limited to the objects and purposes of the voyage. He can bind his owners personally, or hypothecate the vessel, only for repairs or supplies necessary for the prosecution of the voyage, or the safety of the vessel; and it is incumbent on the lender of money to the master, for these purposes, in an action against the owners, to show the necessity of the loan.</p> <p>A, the master of a vessel, bound from New-York to Apalachicola, was obliged, by stress of weather, to put into Charleston for repairs and supplies, the vessel being in a leaky condition. On the 29th of August, A procured 420 dollars for these purposes, by a loan on bottomry from C. Between that time and the 7th of October, B was appointed master in the place of A, with no other authority to bind the owners, than that which is implied in the relation of master and owners. On the day last-mentioned, B borrowed of D 420 dollars, with which he took up the bottomry bond to C; and immediately afterwards, he, with the vessel, left Charleston, on the voyage homeward. In an action brought by D against the owners, to recover the money so loaned, it was held, that the defendants were not liable; such change of responsibility not growing out of the necessities of the voyage or the safety of the vessel.—[One judge dissenting.]</p>

This was an appeal from a decree of the court of probate for the probate district of East-Haddam, taken by Hannah Brainerd, to whom a specific legacy was given, by the last will and testament of Epaphroditus Champion, deceased. The decree was passed on the 24th of January, 1844.

This was an action of trespass, against Ozem Carrier and Amos D. Niles, for the taking of a yoke of oxen, claimed by the plaintiff as his property. The cause was tried at Norwich, March term, 1844, before Church, J. The plaintiff claimed title to the oxen in question, by virtue of a sale thereof from Henry M. Holdridge, by his agent Henry Holdridge, on the 28th of March, 1842.

<p>This was a bill in chancery to restrain the defendants from further proceedings against the property of the plaintiff for the collection of a debt against The Norwich Falls Society.</p> <p>This society was formed, by the voluntary association of individuals, on the 4th of November, 1826, and was then organized, by the choice of a clerk, treasurer and committee. At an adjourned meeting, on the 13th of the same month, at which Thomas M. Jewett, the plaintiff, was present, he was admitted, by a vote of the society, a member thereof. At two subsequent meetings, he was appointed clerk pro tem., and acted in that capacity. At a meeting held on the 20th of April, 1838, he was appointed one of the committee of the society; (a) and as a member of such committee, he subsequently signed a notice for a meeting of the society on the 2d of August, 1839; and the society met in pursuance of such notice. He usually attended public worship with this society. In the early part of October, 1842, he removed from the town of Norwich to the town of Lisbon, seven miles distant, thereby changing his domicil and settlement.</p> <p>On the 16th of November, 1837, the defendants commenced an action against the society, by attaching their land, returnable to the county court. This action was continued in that court from term to term, until June, 1842, when judgment was rendered by default against the society, for 2515 dollars, 60 cents, damages, and 50 dollars, 7 cents, costs. Upon this judgment execution was issued, which was levied upon 25 shares of The Jewett City Bank, standing in the plaintiff’s name.</p> <p>The cause of action, on which the above-mentioned suit was brought, was a note signed by William C. Gilman and William P. Greene, two of the five persons, who were the building committee of the society, made payable to and indorsed by Greene, and negotiated by him to The Thames Bank; and it was given wholly for the expences incurred in the building of the house of worship occupied by the society. The land on which this house stands, was conveyed by deed to the society. The land and house are worth 2000 dollars, and no more.</p> <p>The case was reserved for the advice of this court as to what decree should be passed.</p> <p>contended, 1. That the members of an ecclesiastical society, without local limits, formed by voluntary association, since the adoption of the constitution of this state, are not personally liable for the debts of the society.</p> <p>In the first place, such an exemption has attached to the members of corporations from the earliest period of our juridical history, and constitutes a characteristic point of difference between corporations and partnerships. Ang. & Ames on Corp. 23. Merchants Bank v. Cook, 4 Pick. 414. Myers v. Irwin, 2 Serg. & Rawle, 371. Adams v. Wiscasset Bank, 1 Greenl. 364.</p> <p>Secondly, this society is a private corporation, aggregate, not a quasi corporation. Ang. & Ames on Corp. 16. Greenl. Ev. s. 331, 2. Quasi corporations have territorial limits, and generally no express charter of incorporation. 2 Kent’s Com. 274.</p> <p>Thirdly, there is nothing to be found in the statute under which associations for ecclesiastical purposes are constituted corporations, which prevents the application of these principles. Stat. 577. tit. 98. s. 13. (ed. 1838.)</p> <p>Fourthly, there is an analogy between the creation of these corporations and the creation of joint stock corporations, library companies, and academies. Stat. 107. 402. 535. (ed. 1838.) It was never claimed, that the members of these corporations were individually liable.</p> <p>Fifthly, even in cases where the members of the corporation are made personally liable by statute, courts go very far to save individuals from paying the debts of the corporation. Bond v. Appleton, 8 Mass. R. 472. Child v. Coffin, 17 Mass. R. 64. Middletown Bank v. Magill & al. 5 Conn. R. 28.</p> <p>Sixthly, the provisions of the 7th article of our constitution, are not inconsistent with the plaintiff’s claim. Stat. 33, 4. (ed. 1838.) The expression in the 2d section was not intended to create a liability of individual corporators, nor to declare what the law was. But even if it did, it can apply only to quasi corporations then existing—not to corporations aggregate, to be created. The real object of this clause no doubt was, to guard against the enactment of a law, which should compel a man to sustain a religious establishment.</p> <p>Seventhly, there is nothing in the decisions or dicta regarding territorial corporations—towns, parishes, school districts, &c.—at all inconsistent with the position above stated. Here the counsel referred to and commented on Atwater v. Woodbridge, 6 Conn. R. 228. McLoud v. Selby, 10 Conn. R. 390. The City of Bridgeport v. The Housatonuc RailRoad Company, 15 Conn. R. 475. Riddle v. The Proprietors of the Locks and Canals on Merrimack River, 7 Mass. R. 169. Adams v. Wiscasset Bank, 1 Greenl. 364. Brewer v. New-Gloucester, 14 Mass. R. 216. Merchants Bank v. Cook, 4 Pick. 414. Fernald v. Lewis, 6 Greenl. 264. 268.</p> <p>2. That if the members of the society are liable, the plaintiff is not, because he never joined the society in the manner pointed out by law. Stat. 574. s. 2. (ed. 1838.)</p> <p>3. That his removal previous to the levy, exonerates him from personal liability.</p> <p>4. That the fact that the society has estate, sufficient, or nearly so, to pay this debt, relieves the corporators from individual liability.</p> <p>5. That the debt on which this judgment was rendered, was one never contracted or authorized by the society; the note having been given by a minority of the committee.</p> <p>contended, 1. That the plaintiff was a member of The Norwich Falls Society. In the first place, he became a member, by voluntary association, at the original organization of the society. Secondly, his acceptance of office in the society and holding himself out to the world as a member, precludes him from saying that he was not.</p> <p>2. That being a member, the plaintiff, like the members of other public corporations, was individually liable for the debts of the society. A society formed by voluntary association, pursuant to the 13th section of the statute relating to religious societies, has “all the rights, powers and privileges” of religious societies previously existing in this state. All that constitutes the nature and distinctive character of the corporation being the same, the liability of its members must be the same. That ecclesiastical societies incorporated before the adoption of our state constitution, stand upon the same footing with respect to the liability of its members for its debts, as towns, school societies, cities, &c. cannot be doubted. 1 Sw. Dig. 72. 794. Atwater v. Woodbridge, 6 Conn. R. 228, 9. McLoud v. Selby, 10 Conn. R. 390. 395, 6. Beardsley v. Smith, 16 Conn. R. 368.</p> <p>3. That the indebtedness of the society to the defendants, is placed beyond controversy. In the first place, this debt is for money advanced by the defendants, to pay for the meeting-house erected under vote of the society, and accepted by them. Davidson v. Bridgeport, 8 Conn. R. 472. Secondly, the judgment furnishes conclusive evidence of the debt, both against the society and its members, who could have defended against the suit.</p> <p>4. That the plaintiff, since he became a member of the society, has done nothing to discharge himself from his liability as such, to the creditors of the society. In the first place, he has not separated himself from the society, by leaving a written notice with the clerk, pursuant to the 7th article of the constitution. Secondly, as the society is not constituted with local limits, his removal to Lisbon, a distance of a few miles, would not produce this result. He had still a right to vote in the meetings of the society, and to partake of all its privileges.</p> <p>5. That the plaintiff has adequate remedy at law. If the Jewett City Bank wrongfully refuse to pay him the dividends on his stock, or to permit him to transfer it, he may have complete redress in a suit against that institution.</p>

<p>The testator, after giving the use of one half of his real estate to his wife, during her widowhood, devised the residue of his estate to his five sons, their heirs and assigns forever; provided, that if any of his said five sons should die, without leaving a lawful heir, his or their share or shares should be equally divided among the survivors; and that none of the real estate so devised should be sold until three years after the termination of his wife’s widowhood, unless sold to some of said five sons. One of these sons conveyed his fifth part to another, who mortgaged in fee, by a deed containing the usual covenants, two fifth parts to the plaintiff, to secure a debt due to him from the mortgagor, for money loaned to him, on his representation that he was owner in fee of the property; such sale and mortgage being made during the widowhood of the testator’s wife. On a bill for a foreclosure and the appointment of a receiver against the mortgagor, who was in possession, and two subsequent mortgagees, it was held. 1. that it was unnecessary to determine whether the sons took under the will an estate in fee or in tail; because if any estate whatever was conveyed to the plaintiff, by the mortgage, he was entitled to a foreclosure of that estate against the mortgagor and the other defendants; 2. that the clause in the will restricting the power of alienation, was intended to protect the widow in the enjoyment of her interest, without the annoyance which might result from the occupancy of a stranger with her, and not to deprive the sons of the power of raising money, by mortgage of their shares; 3. that there was no sufficient reason for the appointment of a receiver of the rents and profits, as the plaintiff might resort to his action at law to recover possession, and take them himself.</p>

<p>Where a person appointed attorney for the state for the county of N. L., gave bond with surety, to the state treasurer, conditioned, that such attorney should annually account for and pay over, according to law, all moneys belonging to the state, which he might receive as such attorney; and in an action on such bond against the surety, it appeared, that the moneys received by such attorney on all bonds made payable to the state treasurer, had been properly accounted for, but that on bonds and fines by law made payable to the county treasurer, certain sums received by him were not accounted for; it was held, 1. that the same construction was to be put upon the bond, in this suit against the surety, as in a suit against the principal; 2. that the object of the bond was, to compel the attorney to perform his duty, as a public officer, touching the moneys that would necessarily come into his hands; 3. that unless the words of the bond, fairly construed, included the moneys for which the suit was brought, the defendant could not be subjected; 4. that moneys arising from bonds taken in criminal prosecutions, and payable to the county treasurer, and from forfeitures and fines imposed by the county court, were moneys belonging to the state, within the meaning and terms of the bond; and consequently, that the defendant was liable.</p>

<p>This was a bill in chancery, with a supplemental bill, seeking the reformation of a defective deed, a decree of foreclosure, and an injunction against proceedings at law.</p> <p>The case, as stated in the plaintiff’s original and supplemental bills, and found by the court, was as follows. On the 5th of January, 1838, Francis L. Wheaton was justly indebted to Charles Dyer, by his promissory note for 750 dollars, payable in five years; and to secure the payment of such note, Wheaton, on the same day, executed and delivered to Dyer a mortgage deed of a tract of land in Pomfret; which deed was immediately recorded. Previously, viz. on the 25th of November, 1837, F. L. Wheaton had mortgaged the same tract of land to Levi Wheaton, to secure a debt due to him; but the deed was not recorded until the 9th of February, 1838. When the first-mentioned mortgage was executed, F. L. Wheaton informed the agent, of Dyer, that he had given such mortgage to Levi Wheaton, but that it was not recorded, because the mortgagee wished to avoid being taxed for the mortgage debt. Dyer afterwards, for a valuable consideration, assigned and conveyed to Adams White, the present plaintiff, all his (Dyer’s) interest in said note of F. L. Wheaton to him, and to the mortgaged premises conveyed to secure it; which note is still unpaid.</p> <p>During the pendency of the original bill, the plaintiff discovered, that the mortgage deed from F. L. Wheaton to Dyer was not duly attested, in this, that one of the two subscribing witnesses was the wife of the mortgagor; but, at the time of the execution of such deed, it was supposed, by F. L. Wheaton and the agent of Dyer, who procured it to be given, that it was executed, in all respects, so as to convey the title to the premises to Dyer, as by a good and sufficient deed of mortgage; and Dyer himself was wholly ignorant that such subscribing witness was the wife of the mortgagor.</p> <p>When the mortgage from F. L. Wheaton to Dyer was executed, Dyer had a valid lien upon the premises, by a legal attachment thereof, for the debt secured by said note; which lien, both at law and in equity, was paramount to the security which Levi Wheaton then had for his debt; and this lien was by said Dyer relinquished and discharged, in consideration of his debt being secured, as he then supposed, by a good and sufficient mortgage.</p> <p>After the execution and recording of both of said mortgage deeds, Levi Wheaton brought his bill in equity against Dyer to the superior court, held at Brooklyn, on the first Tuesday of October, 1841, therein showing, that said deed from F. L. Wheaton to Dyer, was by him, (F. L. Wheaton,) duly signed and sealed, witnessed by two subscribing witnesses, and acknowledged by the mortgagor to be his free act and deed, and was, on the day of the date thereof, recorded in the townclerk’s office; showing also, that inasmuch as the mortgage to Dyer was recorded before the one to Levi Wheaton, and as it was, in all respects, executed with the requisites of a lawful deed, Dyer had at law a good title to the premises, though Levi Wheaton, the plaintiff in that bill, claimed to have a higher and a better title in equity, because, as he averred, Dyer, at the time of receiving his deed, had notice of the prior incumbrance; and praying that the title of Dyer be postponed to that of such plaintiff. On this bill the superior court, at its term held on the fourth Tuesday of January, 1842, after a full hearing, found the facts in controversy as follows: That Francis L. Wheaton, on the 25th of November, 1837, being indebted to Levi Wheaton, executed and delivered to him the deed of mortgage before described; that afterwards, on the 5th of January, 1838, said Francis being also indebted to said Dyer, in the sum of 750 dollars, executed and delivered to him the promissory note and mortgage deed before described; which last-mentioned deed was, on the same day, duly recorded in the town records; that said note remains unpaid; that afterwards, on the 9th of February, 1838, said Levi caused his deed to be duly recorded; and that the reason for his delay in recording his deed, was, that he did not suppose that said Francis owed any debt, which might be made to interfere with his lien, and that it would be for the mutual accommodation of the parties to withhold it from the records; and that in consequence of such delay, said Levi Wheaton’s title at law was postponed to that of said Dyer. The superior court further found, that there were no facts in that case, which called for the interposition of a court of equity to postpone Dyer’s legal title, and therefore, dismissed the bill. (a)</p> <p>The plaintiff in the present bill averred, that Levi Wheaton ought now to be estopped, by his allegations in the former bill and the finding of the court, from claiming title to the mortgaged premises, except as subject to Dyer’s mortgage.</p> <p>The case was reserved for the advice of this court as to what decree should be passed.</p> <p>after remarking that the plaintiff was undoubtedly entitled to the relief sought, as against Francis L. Wheaton, the mortgagor, contended, that he was also entitled to relief against Levi Wheaton, the first mortgagee, on two grounds.</p> <p>1. That he had superior equity. The deed to Dyer was first recorded; and equity will correct the mistake in that deed, and treat it as a valid security. Smith v. Chapman & al. 4 Conn. R. 344. Then on what ground does Levi Wheaton stand? His deed was not only not recorded until after Dyer’s, but it was withheld from record, by a fraud upon the law; it being done either to enable him to screen his property from taxation, or to hold out the mortgagor, confessedly a bankrupt, as a man of property. And this is not a case of negligence merely, occurring after the delivery of the deed, but was a part of the agreement made at the time of its delivery, for an improper and fraudulent purpose—such as a court of equity will not sanction.</p> <p>2. That Levi Wheaton is estopped to deny the validity of Dyer’s deed, by the proceedings in the former suit. The bill and the decree of the court are both based on the idea of Dyer’s legal title; and the bill sought a postponement of that legal title on equitable grounds. Shall L. Wheaton now be allowed to turn round, and assert that the legal title is in himself, and not in Dyer?</p> <p>Levi Wheaton, contended, 1. That the legal title was in him, his deed having been, not only first executed and delivered, but recorded also before there was any legal conveyance to Dyer. For the purpose of transferring the legal title, a deed with but one competent witness, is no deed. Carter v. Champion & al. 8 Conn. R. 549.</p> <p>2. That L. Wheaton had practised no fraud on Dyer, on account of which a court of equity would postpone the legal title of the former. In the first place, if L. Wheaton, from any motive whatever, omitted to record his deed, this was no injury to Dyer. Wheaton run the risk of this property’s being attached by, or mortgaged to, another creditor, in the meantime; but this was all. But secondly, the finding in this case shows nothing relative to L. Wheaton’s motive for withholding his deed from record: it only shows what Francis L. Wheaton said on that subject, not in the presence of Levi Wheaton.</p> <p>3. That the defendant L. Wheaton, is not estopped, by the former suit, to deny the validity of the deed to Dyer. In the first place, the due execution of that deed, was not in issue, in the suit referred to. See Wheaton v. Dyer, 15 Conn. R. 307. Secondly, the plaintiff in the present suit states, in his bill, the fact, that the deed in question was not duly attested, one of the subscribing witnesses being the wife of the mortgagor. Can the defendant be estopped from denying what the plaintiff himself alleges in his bill, and makes it the basis of his asking for the interposition of the court? Thirdly, estoppels are not favoured in law, much less in equity, where more liberal principles prevail. Leicester v. Rehoboth, 4 Mass. R. 180. Bridgewater v. Dartmouth, Id. 273. Smith v. Sherwood, 4 Conn. R. 276.</p>

<p>An officer having taken property on legal process, must, in his subsequent proceedings with it, comply with all the requirements of the law, or show some legal excuse for not doing so; and if he does not, he becomes liable, not only to those on whose behalf he acts, but also to the owner, and those claiming under him and standing in his situation.</p> <p>Where personal property on which an execution had been levied, was advertised to be sold, and was sold, not at the sign-post in the society wherein it was taken, but in another place where it was deposited, when the execution was levied upon it; and the only reason for this proceeding was, that the property could not be conveniently removed from that place to such sign-post; the court, without explicitly deciding the point, were strongly inclined to the opinion, that this was not a sufficient excuse for not selling the property at the sign-post.</p> <p>Personal property was attached, by the same officer, first, in sundry suits in favour of A, and afterwards, in a suit in favour of B, all against C. This property the officer delivered to D, who gave a written receipt therefor, promising to re-deliver it, on demand. With the executions issued in the suits first served, the officer afterwards demanded such property of D, who neglected to re-deliver it, but paid the value thereof to the officer, who applied the sum so paid in part payment of such executions, it being insufficient to satisfy the full amount. B having obtained an execution in his suit, and having in vain demanded the property of the officer, brought an action against him for negligence, who set up these facts as a defence. Held, 1. that B, by virtue of his attachment, had a right to have the property kept by the officer, and appropriated, in the manner prescribed by law, in satisfaction of the prior liens, and if not so appropriated, it was exonerated from those liens; 2. that the delivery of the property to D, the receipter. the taking from him a promise in writing for its re-delivery on demand, his neglect to re-deliver it, when demanded, his subsequent payment of the full value of the property, and the application of the money, by the officer, on the executions in favour of A, did not excuse the officer for not having the property forthcoming to be taken on B’s execution; 3. that the rule of damages, in a case like this, is the injury sustained by the creditor, by the default of the officer, and therefore B, not having sustained any actual damage, by the negligence complained of, was entitled to recover nominal damages only; 4. that it is a good defence to such an action, that the property attached belonged not to the debtor, but to another person; 5. that where the defence set up to such action, is, that the property has been appropriated, in the manner prescribed by law, in satisfaction of the prior liens, a general averment of that import is not sufficient, but the plea must state specifically the facts showing this result.</p>

IN ERROR. This was an action of assumpsit for work and labour performed and services rendered; also for money paid, laid out and expended, by the defendant, for the plaintiff, and at his request ; brought originally, by Charles Crawford against Leonard Marcy, before a justice of the peace, and appealed to the county court; in which the cause was tried, March term, 1843.

This was an action against the defendant, as sheriff of Windham county, for the default of John R. Tweedy, one of his deputies, in the service of a writ in favour of the plaintiff. The cause was tried at Brooklyn, January term, 1844, before Church, J, On the 26th of February, 1840, Hogan & Miln brought their action, by writ of attachment, against Joseph S. Curtis, which the plaintiff, as an officer, served, by attaching two yokes of oxen, four horses and ten cows.

This was an action of debt on a bond of recognizance, given by the defendant, as the surety of Israel Saunders, on a writ of replevin.

<p>In an action of debt on bond, conditioned for the performance, by the defendant, of a certain award, setting forth the condition, and stating, that the award directed, that the defendant should pay the outstanding debts of the firm of D & D, should indemnify the plaintiff against the outstanding debts of the firm of D & R, and should pay to the plaintiff a certain sum of money, the breach alleged was, that the defendant, though often requested, had not paid said debts of D & D, nor indemnified the plaintiff against said debts of D & R., nor paid to the plaintiff said sum of money. After a verdict for the plaintiff on certain special issues, relating to the validity of the award, on a motion by the defendant in arrest of judgment, it was holden, 1. that there could not be a breach of this bond, without a non-performance of the award, considered in regard to its legal effect; 2. that as the declaration specifies no time when the acts mentioned in the award were to be performed, no breach of duty, by the defendant, in relation to those acts, was shewn, and consequently, no cause of action thereby accrued to the plaintiff; 3. that as the declaration did not state, that any, or if any, what debts were due from said firms, nor that the plaintiff had been damnified on account of the debts of D & R, there was not that certainty, which is requisite in the assignment of breaches; 4. that these defects were not cured by verdict.</p> <p>In assigning a breach of the condition of a bond, it is not sufficient to negative performance in the words of the condition, unless this necessarily amounts to a breach of such condition.</p> <p>A defect in any pleading, whether of substance or form, which would have been fatal on demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts defectively stated or omitted, and without which it is not to be presumed, that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect is cured by the verdict.</p> <p>But a defect in some collateral parts of the pleadings, that were not in issue between the parties, so that there is no room to presume that such defect was supplied by proof, is not aided by verdict.</p>

<p>In an action brought in the name of the payee of a promissory note not negotiable, for the benefit of the assignee, against the maker, the declarations of such payee, made after the assignment and notice thereof to the maker, are not admissible in favour of the defendant.</p> <p>Where a deposition taken in the state of New-York, to be used in a cause pending in the superior court in this state, was directed to the supreme court to be holden in the county in which such cause was pending; it was held, that the deposition was not inadmissible, by reason of such direction.</p>

<p>The act incorporating a manufacturing company provided, that the capital stock of the corporation should not exceed 50,000 dollars; that a share of the stock should be 100 dollars; that the directors might call in the subscriptions to the capital stock by instalments, in such proportions, and at such times and places, as they should think proper; that the stock, property and affairs of the corporation should be managed by the directors, who were required to be stockholders; and that they should have power to establish such rules and regulations as they should think expedient. The act also provided in effect, that within three months, not less than 5000 dollars of the capital stock should be actually paid, which should not be withdrawn so as to reduce the same below 5000 dollars. After the stockholders had paid in 40 per cent. on their subscriptions, the corporation became insolvent, having no visible property. On a bill in chancery, brought by certain creditors, for the benefit of all, against the stockholders, praying that they might be compelled to pay in the remaining 60 per cent. (or so much thereof as should be necessary) to be applied in payment of the debts of the corporation, it was held, 1. that the obligation which the stockholders assumed, by their subscription to the capital stock of the corporation, was to pay the sum of 100 dollars, on each share, in such instalments and at such times, as should be required by the directors; 2. that the amount of the shares subscribed, and not the sum actually paid in, constituted the capital stock of the corporation; 3. that when further instalments became necessary to meet the debts of the corporation, it was the duty of the directors to cause them to be made, the discretionary power of the directors being modal only, relating to the time and manner of payment; 4. that this duty might be enforced, by a decree in chancery; and consequently, that the relief sought should be granted.</p>