Volume 3 — Day's Connecticut Reports

IN the writ, the plaintiffs were described as being The declaration alleged, “ that on or about said 1st day of March, 1796, the defendants possessed a certain paper writing, purporting to be a promissory note, payable to them the defendants, by one Erastus Gay, in the words and figures following, viz. “ On the first day of October next,' I promise to pay Gleason it?

<p>THIS case was argued on a plea in abatement, at the last term; a resfiondeas ouster was ordered; and the case continued to this term, for trial on the merits^.</p> <p>The declaration having been already stated at length, it may be sufficient to refer to that statement,(a) without repeating it here ; but the case will be better understood by a statement of the following facts, in addition to those which appear on the declaration:</p> <p>Erastus Gay made a contract for a title to some Georgia lands with Peleg Sanford and another person, according to the terms of which he was obliged t® give them a note for nine hundred and forty-five dollars, payable at the Hartford bank, "with a good endorser. To comply with this contract, Gay induced Gleason fi Cowles to endorse the note in question; and after it was so endorsed, he delivered it to Sanford. It was then sold to Timothy Burr, but without any endorsement; and by him it was again sold to Codwise, Ludlow tí Co. for goods, and without any endorsement by Burr. It was after-wards endorsed by Codwise, Ludlow tí Co. and sent to John Dodd of Hartford for collection, and by him endorsed and lodged in the bank. As it was not paid when it became due, demand was made of Burr, as well as of Gay, and Gleason tí Cowles. After the note was taken from the bank, the names of Codwise, Ludlow tí Co. were erased, they having been entered merely for the purpose of collection. The suit in the name of Gleason tí Cowles against Gay, failed on the ground of fraud, and, consequently, of want of consideration in the contract, to comply with which the note was given. An action was then brought against Burr by Codwise, Ludlow ÍÍ Co., in which they claimed to recover of him as having sold, and thus become responsible for the note. His defence was, that though he sold, he did not warrant the note, but that it was received by the plaintiffs entirely at their own. risk. That suit id so failed ; and the present action was immediately commenced.</p> <p>On the trial, after all the material facts alleged had been either admitted or proved, the counsel for the defendants offered evidence to prove, first, that this endorsement was not intended to give a general credit to the note ; and, secondly, that the plaintiffs were, in reality, remote endorsees.</p> <p>objected to the testimony</p> <p>This endorsement by Gleason ÍÍ Cowles needs no explanation. it admits of none. No evidence, as to the inter.don of the parties can alter the legal mature of the irt-strument. This note appears to have been sent into the world under the sanction of the names of Gleason isf Cowles. So merchants would universally understand it, and so courts will consider it. -</p> <p>Livingston, J. Evidence that Gleason & Cowles endorsed 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.</p> <p>In the argument of the case, Ingersoll and Griswold, for the defendants, contended,</p> <p>1. The plaintiffs, cannot recover, because the note has-been decided,by a competent tribunal to be void. 'The endorsement must of course be void. The endorsement is in the nature of security; ánd where notes are not negotiable!, 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, acknowledged that a surety cannot be holden, when the obligation of his principal is void,</p> <p>2. From the testimony which has been let in, it appears that the plaintiffs are remote endorsees, and the defendants never endorsed the note to them. There is no 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-gtrument, and make that negotiable which was not so in its creation ; which is absurd.</p> <p>1. The contract of the endorsor 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 responsible. It makes no difference whether the note is not paid by the maker because he is. unable, or because the instrument is void, or on account of any other impediment in the way of collection. Let the cause of failure of payment be what it may, the endorsor is liable. If the note is forged, the endorsor is still holden; and in a suit against an endorsor it is not necessary to prove the hand-writing of the maker.</p> <p>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 recoyer of the endorsor. This principal is clearly illustrated and supported by the case of Russel v. Langstajfe, Doug. 514. where Lord Mansfield declared, that the defendant, by endorsing blank copper-plate checks, gave a letter of credit for an indefinite 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 general liability of endorsors on account of having given their names to the world, but declares farther, that the endor-sor, is holden, though the paper endorsed was, at the time, amere nullity.</p>

<p>THIS was an action of indebitatus assumpsit.</p> <p>⅜ in ⅛6 Writ plaintiff was described as “of the city, , ⅝ 1 county and district of New- York, a citizen of said dis-trictand the defendant as “of Watcrbury, in the county 0f JYew-Haven, and district of Connecticut, a citizen of ⅜ # 7 , Said district,” -</p> <p>The first count of the declaration alleged, “ that on ⅛⅛ thirtieth day of June last past, at JYew-Haven, in said •• * ■ e 7 ⅝ district of Connecticut, he the defendant was indebted to . « , _ _ , ⅜ the plaintiff in the sum oi seven hundred dollars, for dx-vers lal,ours and services before that time done and performed by the plaintiff, for the .defendant, at his, the de-fendatit’s, special instance and request; and the defent}-ant’ at New-Haven, immediately afterwards, viz. on the thirtieth day of June last past, in consideration of being indebted to the plaintiff as aforesaid, assumed upon himself, and to the plaintiff faithfully promised to pay to him the aforesaid sum of seven hundred dollars, in a reasonable time thereafter, when thereto requested by the plaintiff.”</p> <p>The second count stated a quantum meruit for seven hundred dollars, for labours done and services performed.</p> <p>The third count claimed five hundred dollars for so much money laid out, disbursed and expended, by tiie plaintiff, for the use of the defendant, and at the defendant’s special instance and request.</p> <p>The fourth count was as follows : “ Also for that, at JYetv-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 Samuel C. Alcox, of Wolcott, in the county of JVcnv-Haven, he the defendant, at said JYetv-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 reasonably worth; and the plaintiff further avers, that said services so rendered and performed were reasonably worth the sum of sixty dollars.’’</p> <p>The fifth count alleged, that the defendant was indebted 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, &c.</p> <p>The sixth count was for fifty dollars in money, laid out by the plaintiff for the use of Alcox, at the special in* stance and request of the defendant.</p> <p>The common averments were inserted at the dose-.</p> <p>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 JVew-York, and unable, as was stated, to attend the trial.</p> <p>Livingston, J. You must be sensible that the sickness of a party, or his inability to attend the trial, is no legal cause for a continuance.</p> <p>stated, that Jfichols was a competent witness in this case; that they wanted his testimony; and, on that ground moved lor a continuance. They insisted, that though this action is assumpsit in form, it still comes within 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 parties 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.</p> <p>They also urged, that the statute of limitations of book debts, had been construed to extend to actions of assump-sit. But the words of this statute, “ that all such book debts as are now outstanding,” See. can with no more propriety be extended to such actions, than the words of the other statute.</p> <p>The privilege allowed by our statute, that the parties should be permitted to testify in their own case, is mutual ; 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 common 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 consideration.</p> <p>It has been said, that the statute of limitations regard; ing book debts, is applicable to actions of assumpsit, and has been so applied. This is true, where the action of assumpsit is brought to recover the value of articles or services commonly charged on book. Hut this depends on the phraseology of the statute of limitations, which declares, 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 purpose, still no book debt shall be recovered after six years. But' the statute authorizing courts to receive the testimony of the party himself, gives this privilege only -in the particular ,/br?« of action which we call book debt.</p>

WRIT of error. This was an action on the case for a fraud, practised by Peck, in obtaining a decree in chancery against Wood-bridge. The declaration stated, that Woodbridge, on the 1st of January, 1773, became vested with the title to a certain piece of land, subject to a right of redemption by Noah Rust, and Elizabeth, the wife of Peck, children, and only heirs of Noah Rust, deceased, by whom the land was originally mortgaged.

These were actions of book debt for education and support, furnished by the plaintiff, before her intermarriage with Stanton, and by him afterwards, to the children of Bird. Held: that where the father and mother are separated, and the husband suffers the childreiv to remain with their mother, he thereby constitutes her his agent, and authorizes her to contras, t for necessaries for them.

WRIT of error. This was an action of assumpsit, upon a policy of insu-ranee, upon goods on board the brigantine Ontario, from to New-York, or JYew-London; against dan-pjers of the sea, See. Held: that fictions were not to be urged, contrary to the justice of the case. 3 Burr. 1243, 3 Wils. 274.

<p>Usury may be given in evidence under the general is-In such cacc the defendant must give the plaintiff notice of the defence.</p>

On the trial of this cause in the superior court, it appeared that the plaintiff was a creditor of the estate of Moses Doming, late of JVetp-Hartford in the state of JVew-Yprk, deceased; and that personal property belonging t® that estate had come to the hands of the defendant, and had been disposed of by him. The plaintiff, therefore, claimed, that the defendant was liable as executor de son tort.

[TON for a new trial. was an action of ejectment, to recover the undivided 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.

<p>Every public show and exhibition which outrages <le-cency, shocks immunity, or °pu-nisbable at common law»</p> <p>punfshaW^at ?ommon ,la.'*r ¡9 averred m the information to be contra farmam statutl> suc,‘ averment may be rejected as surplusage, an{i ⅛ ,°ot vu,ate-</p> <p>An information for an exhibition of a pardeuferiy*4 slate t,ie 0,.1⅛ cumstances m which the m-¡Sty*or⅞-moral'ty >*• the court may judge whe-it is an ⅛ statute tit. 11(5-s-ai common law;</p>

CASE Stated, This was an action on a policy of insurance. The defendants pleaded non assumfisit. 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 reasonably 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…

WRIT of error, This was an action on the case, brought by Young against Rowley, alleging that the plaintiff had an action Of trespass upon the statute, for cutting; trees, against the defendant, pending in the superior court, by appeal of the defendant from a judgment in favour of the plain* tiff, for 60 dollars damages and costs; that it was mutually agreed by the parties that the action should be called out, and submitted to the arbitrament and final determination of Asher…

to the defendant and his wife, to serve them from the age of eight years until he should arrive to the age of twenty-one. Held: that the license and agreement of the plaintiff, to extend the time foi discharging the cargo, was a legal defence, although the time was fixed by the covenant.

.MOTION for a new trial. This was an action of trover for a promissory 1 J The conversion was laid on the 21st of June, 1806; and the suit was brought in November, 1806. __ The defendant pleaded not guilty; and on the trial, the defence was, that he took the note in question, with the rest of the plaintiff’s property, as agent of the se-lectmcn of the town of Stamford, by virtue of the statute authorizing the selectmen to take into their care and custody the persons and…

This was an action, qui tam, brought on the statute to r , . , .. . . t prevent frauds, quarrels, and disturbances m bargamsa saiesi leases,… Held: and claimed the same as his own estate in fee, exclusively of all others; and that, on the 15th day of February, 1802, the plaintiff being still in possession, the defendant caused the aforesaid deed of conveyance to be recorded in the records of the town of Woodbridge; and by virtue thereof, the plaintiff has ever since claimed…

This was an action of book debt; and among other charges in the plaintiff’s account, there was one of 262 dollars and 9 cents, for printing part of a book entitled “ The Federal CalculatorIt was proved, and admitted by the parties, that before June, 1804, when the printing was done, one Daniel Hawley had obtained the exclusive copyright of the book, as author, throughout the United States.

This was an action of indebitatus assumfisit. Held: notwithstanding, that the declaration #as supported. [Swift, J. In that case, the court did not consider themselves as departing from the principle of Bristow v. Wright.

This was an action of ejectment for a valuable real , , -,⅝-estate in Montville. 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 Kenyon said, nothing can be clearer, than that an infant ‘may consider whoever enters on his estate, as 'entering for Ids use. Doe y. Keen, 7 Term Hep. 386.

<p>When a witness has been examined hy the party against whom he is called, as fe rtiV'eventi other witnesses cannot be inquired of resn handlntk makes no dif-lerence whe-they such ex-«™der the nor whether itwas in court, or before a Snf Ídfepost tion out of court.</p>

<p>WRIT of error.</p> <p>This was an action on the case. The plaintiff alleged in Ms declaration, that on the 15th of February, 1802, he . sailed from) New-London, as a seaman on board the snip Dispatch, of which the defendant was master, on a sealing voyage to the Pacific Ocean, under an agreement to receive, as wages, a certain share of the profits of the voyage : and that during the voyage, the ship put into the harbour of IVcst Point, one of the Falkland Islands, barren, uninhabited, and in an intemperate cii- . , ⅛ , , . . , , , , . . mate. While the ship lay at this island, the plaintiti was ordered to go on shore by the defendant; who after wards refused to receive him again on board the , . , . , , ,. , ' . . , _ , . snip; but, without the iault ol the plaintiff, left him, contrary to his will, with nine other seamen, on the island, destitute of provision, and without the necessary . . means ol procuring subsistence : by which his health was impaired, and his time wasted. Which doings of the defendant were averred to he fraudulent and malicious ; and with a design to deprive the plaintiff of his share of the profits of the voyage.</p> <p>The cause was first tried, on the general issue, at Hartford, November term, 1806. A verdict was found for the plaintiff. The defendant moved in arrest of judgment;</p> <p>1. For the insufficiency of the declaration.</p> <p>2. For that one of the jurors, empannelled in the cause, and who joined in the verdict, freely conversed about the case, while it was on trial, with other persons, not of the jury, publicly declaring that the defendant’s conduct could not be justified; and gave his opinion in favour of the plaintiff, before the testimony had been received, and the cause argued.</p> <p>3. For that one or more of the jurors, being opposed to the verdict, as first returned, and finally accepted, at last agreed to join in the verdict, after the jury had been returned to a second and third consideration, upon a mistaken apprehension, that after having once come in with a verdict, he could not deny his assent to it again, and on that ground, only, he assented to the verdict.</p> <p>To the first reason, the plaintiff replied; that his declaration was sufficient.</p> <p>To the second reason, that the matters contained therein were untrue, and insufficient.</p> <p>And to the third reason he demurred.</p> <p>The court adjudged the declaration sufficient. As to th« second reason, the court found, timt me of the jurort, emftannrllrd and sworn in the cause, and who joined in the verdict, freely conversed about the case, while it was on trial, with other persons, not of the jury; but that the other facts alleged in the second reason were not true. The third reason was adjudged sufficient.</p> <p>The verdict was set aside, and the cause, ordered for a further hearing. It was again tried, on the general issue, February term, 1807.</p> <p>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 refused 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 apprehensions 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 suffered extreme ill usage from the officers; particularly, that John Howard, the second mate, had, without provocation, beaten two of the seamen with such severity as occasioned their deaths; and that he nad seriously wounded three others, without being punished, or reprimanded 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 were left, ought to have security for future good usage. this evidence the defc’dai.t objected ; and tilt- court ruled, that it was inadmissible. A verdict was found for the defendant, and the plaintiff filed his bill of excep-lions.</p> <p>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.</p> <p>The allegation 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, indeed, not traversable. The only material allegation is negatived by the finding of the court.</p> <p>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 defendant is estopped by the record, which is as conclusive of his voluntary concurrence in the verdict, as it is of the judges’concurring in the judgment.</p> <p>The evidence offered by the plaintiff, as stated in the bill of exceptions, is not to prove the averments in the declaration; to explain the fact proved by the defendant, that the plaintiff refused to comply with his order to come on board the ship ; and therefore remained 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.</p> <p>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.</p> <p>2. Because circumstances might exist of such a nature 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.</p>

W’RJT O. C, ror. This was an action of indebitatus assumpsit, brought „ . , , ,. , , by the town of Woodhridge against the town of Oxjord, money paid, laid out, and expended, for the support 0f 0ne Philo Bradley.

<p>Facts stated, by way of inducement t© a material tra-traversable-1* and the party, by joining is-as'sueonthefects do^Tot ad-meat-</p> <p>Qfoere, whe» tlier after a plea of no [ward, a rejoinder of a revocation is a ,if-I,ílrtiue'</p>

This was an action of assumpsit counting upon a receipt of the defendants’ intestate in the following words; r ° * Milford, August 21*?, 1780, Received of Mr. Samuel Wales twenty-two pounds,… Held: that the plaintiff had his election to bring assumfisit or account. The case cited goes much further than is necessary for us.

This was an action of book debt. The defendant pleaded the general issue. On the trial, the defendant exhibited his account, and offered •vidence to support it; to which the defendant objected, on the ground that the account was res adjudicata. In r . ■ , . . , , . , , , support or hrs objection, the defendant produced a record of the city court of the city of New-Haven, in an action in which Coojír was plaintiff, and Lane defendant.

Josefih Noyes. It was admitted, that the ° plaintiff had a good and legal title, unless barred by the „ ,. . statute of limitations. The defendants were in possession, as tenants under-Nathaniel Palmer.

WRIT of error. Joseph Munson brought an action of assumpsit against Jabez Munson, alleging that Jabez Munson, their father, made his will, and thereby gave his estate to his wife arid children; that in order to have a just distribution thereof, according to the will, the heirs and devisees entered into an agreement signed by each, appointing Caleb Jllling and Joseph Dorman to make such distribution, and bound themselves “ to abide by, comply with, and perform, all the acts…

THIS was an action of ejectment, The defendant pleaded the general issue. On the trial, the plaintiff, to show title in himself as assignee, 1 after having proved the commission and assignment, offered in evidence a copy of a deed from the records 0f tiie town of Hartford, duly certified by the town J J clerk, from George Bull to the bankrupt, conveying the demanded premises.

This was an action on a promissory note, executed by the defendant, to Seth Bird, the plaintiffs’ testator. The defendant pleaded usury, alleging, in the usual form, a corrupt agreement, On the trial, it appeared, that more than lawful interest was reserved in the note; but that the defendant did not know of such reservation, until some time after the note was executed, anddelivered. The plaintiffs contended that, under these circumstances, the note was not usurious.

<p>MOTION for a new trial.</p> <p>The nature of this action, which has twice been be- ... , tore the supreme court of errors, is concisely stated, ante, vol. 2. p. 293. Hempstead, one of the defendants, ha(j died since the commencement of the suit. On the in 1806, the cause was remanded to the sufie-r*or court next thereafter held in Hem-London county, where it was again tried. On that trial, the defendant offered to prove, that since the first trial of this cause, Robert Bird, one of the plaintiffs, had become bankrupt, ancj p,a£j assigrned his effects under a commission of bank-0 duly issued in the district of JVew-York. To the ■ " . . . , admission of this evidence the plaintiffs objected; and court ruled it out.</p> <p>- . . , , , . . m , . In the progress oi the trial, the plaintiffs offered in evyerce tjie wrjt of replevin, and replevin bond, men-1 7 1 7 tioned ante, vol. 2. p. 294.; also a writ, process and ih favour of the defendant, against Guv don I. j¡,£¡¡er an(j ¡-⅛ sureties, on said bond; and then offered p0 prove, that the plaintiffs had indemnified said sureties. evidence was objected to by the defendant,; but admitted by the court,</p> <p>In the charge to the jury, the court did not instruct . » th it Said cudence was not lobe considered as proof of sp.ci.il damage in the case; but instructed * ⅛ them, that the right of the plaintiffs to recover depend- . , . . r on me ngat ot propel ^y.</p> <p>And the defendant moved for a new triai, on the ground that these decisions of the court, with regard to the evidence offered, and « • * , their direction,to the jury, were erroneous. This motion being reserved for the opinion of the nine judges, was argued, at this term, by Goodrich and Dana, in support of it, and by Daggett and Goddard, against it.</p>

<p>A motion for mtá guardian to an mtant party, must be in wnlmS> an(l must state the name of the person proposed, and his be</p>

GODDARD, in support of a motion for the continuance of this cause, read an affidavit of the absence of a witness. contended, that there had been negligence in procuring the attendance of the witness. was about to make some remarks in explanation; when he was interrupted by

THIS was an action of ejectment for lands in Hebron, ⅜ in the state of Connecticut, alleging that the defendant ' ousted the plaintiffs of the demanded premises eighteen r * months before the commencement of the action, and had , . . ever since remained m possession. moved to erase this cause from the docket, on the ground, that from the* description of the parties, it did , . , . . ,. . not appear tobe within the jurisdiction ofthe court.

THIS was an indictment charging, “ That before, on, and ever since the first day of February last, the public highway from the. city of JVew-York, on the road through Danbury, Litchfield, and Farmington, and from thence to Hartford, by force of the several acts of the congress of the United States relating to post-offices and post- ■* i « i r roads, was made, and still is, a post-road designated lor the transportation of the public mails of the United States; and during all…

<p>If the jury separate after acasefe com-{JJein^and he-fore they have agreed m a verdict and turn a verdict, ‘¿⅛11 be set</p>

<p>THIS was an action of debt on bond, dated the 17th . . of April, 1780; the condition of which was, that Payne should carry on the business of distilling brandy from cider, and should continue to do so for seven years and three months from the date of the bond, and should keep an exact account, during that term, of all brandy or other spirits distilled from cider by him, or on his ' account, and should deliver to Cottle, when demanded, one tenth part of all such brandy or other spirits dis-' tilled from cider, free from expenses. The declaration r averred that Payne did carry on the business for the term abové specified, but kept no account, and had delivered no brandy or other spirits. A special demand , J r r was alleged on the 20th of June, 1806. The action was , . , ^ , - r commenced on the 10th ot June, 1807.</p> <p>The defendant pleaded full payment. This plea was , , . . . , _ traversed, and issue joined thereon.</p> <p>The counsel for the defendant stated, that they should * ' rely upon the lapse of time m support of the plea. By our statute of limitations, no action can be sustained on any bond, bill, or note, for the payment of money only, unless brought within seventeen years;(a) but as this bond was given for the performance of certain collateral acts, the statute does not attach upon it. The length of time in this case is such, that payment is to be presumed at common law.</p> <p>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 appeared, 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.</p> <p>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.</p> <p>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.</p> <p>2. That this bond did not become forfeited until the 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.</p> <p>3. That the lapse of even twenty years affords only a presumption of payment, that may he repelled; which, ⅛ this case, has been done, by showing the plaintiff's absence from the state, and his inability, from that circumstance, and his poverty, to institute and carry on a suit. Very slight evidence is sufficient for this purpose. Peake’s Ev. 25. 3d Lond. edit,</p> <p>1. That in England, the period of time within which a bond shall be presumed to bé satisfied is not invariably fixed at twenty years, but may be eighteen or nineteen years. Oswald et al v. Legh, 1 Term Reft. 272.</p> <p>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.</p> <p>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 money, and was more likely to call for it.</p> <p>4. That in this state, payment ought to be presumed after the lapse of seventeen years, in analogy to cases within the statute. Thus, it has been held, that an equity of redemption shall be barred after fifteen years’ possession by the mortgagee, in analogy to the statute limiting the right of entry into lands.' Smith v. Skinner, 1 Day, 124.</p> <p>Livingston, J. This is an action of debt on bond, the condition of which is, that the defendant should distil cider brandy, and keep an account thereof, for seves years and three months, and deliver one tenth part thereof to the plaintiff. The defendant pleads payment generally; and relies altogether upon the lapse of time since the date of the bond.</p> <p>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 circumstances. 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 deserves 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 express an opinion. For in our view of the case, the plaintiff 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, perhaps 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.</p> <p>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.]</p> <p>Though the plaintiff, upon strict principles of law, is 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 expected- that the defendant should have kept such an account until this time. No inference is to be made against him for not producing it now. He had good reason to believe he never should be called upon. He would have been justified even had he destroyed it. Under such circumstances, it is incumbent upon the plaintiff to prove the quantity distilled. During one year, the plaintiff has furnished some data, from which an estimate may be made; in no other year is there any. The jury have no right to supply this want of proof by conjecture; 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.</p> <p>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 ?</p> <p>Per Curiam. The brandy was to be delivered on demand. The value at the time of the, demand, therefore, is to furnish the rule.</p> <p>Verdict for the plaintiff for 69 dollars and 21 cents.</p> <p>Daggett moved, that costs be allowed the defendant, under the 20th section of the first judiciary act, [⅛⅛0 U. S. vol. 1. p. 61.]</p>

THIS was an action of assault and battery, ' After the declaration was fead, Livingston, 3. inquired on what ground the cause was brought before this . -or» court i Was it because the plaintiff was an alien / He was not so described in the declaration.

This was a libel founded on an alleged violation of the act of congress) approved the 9th of January, 1808, supplementary to the general act laying an embargo on all ships and vessels in the ports and harbours of the United States. The brig, of which Stejxhen Griffiths was claimant, was charged with proceeding to a foreign port or place, contrary to the provisions of said acts, and was condemned by the decree of the District Court.

THE plaintiff, in his declaration, stated, “ that at New-Port, the defendants, by said William Tilley, purchased af said deceased a quantity of hemp, to be manufactured . at their rope factory m A cw-London, on a credit of four months, and to secure payment thereof, the defendants, at said Mew-Port, by said William Tilley, one oí said firm and company, and then joint mechanic and trader with said James Tilley as aforesaid, made, executed, and to said deceased, then in full…

ON motion For ilie continuance, of ibis cause, the . .. made an affidavit stating the absence of Jom/ik Howlands jun. a malt rial witness, and that he hoped to procure the testimony of the witness at the next court, * é A counter affidavit was filed, stating that Josefih Etonv-¡an(¡y jUn. was gone to foreign parts: that he expected to have no fixed residence; and that he did not expect • , to return withm two or three years.

THIS was an action on a joint note, signed by Ashbel . Stanley and Jeduthan Cobb, but was brought against Cobb only, it being alleged, that Stanley, since the execution, had become a bankrupt under the laws United States. of the The defendant pleaded a ji’scharge in full to Stanley.

THIS was an action by the endorsees of a promissory note against the maker. The note was made in the state of Arw-York, and was, by the laws of that state, negotiable. It was payable to John I. Staples isf Hon, and by them endorsed to the plaintiffs. .

THE declaration was as follows: “ That before the 8th , . day ot February, 1806, the plaintiff had entered into a certain contract with the defendant, to build him a ship, which, on said 8th day of February, was building, the same . , 1 ° not being finished; and the defendant, on said 8th day of February, in consideration of the plaintiff’s building said ship, and the sums which would become due to the ..... plaintiff for building said ship pursuant to said contract, and in…

THIS was an action of ejectment for one undivided seventh part of a piece of land, which the plaintiffs . . r claimed, in the right of the wife, as one of the heirs at law of Ann Lake> deceased. , 1 he defendant pleaded the general issue, On the trial, it was proved and admitted by the parties, . that on the 1st of January, 1797, Ann Lake died seised of the premises; that she had previously made her will, while the wife of Jabez Lake, whereby she devised the premises to the…

<p>WRIT of error.</p> <p>The declaration was as follows: “ That the defendant, in and by a certain writing or note, under his hand, by him well executed, dated the 30th day of June, 1806, promised the plaintiff to pay to him, for value received, the sum of eighty dollars, to be paid in good West-India rum, sugar, or molasses, at the election of the plaintiff, to be paid in eight days next after the date of said note, as by said writing or note, ready in court to be shown, appears. Now, the plaintiff further says, that the defendant, his promise aforesaid not regarding, hath never performed the same, though often requested and _ demanded; which is to the damage of the plaintiff,” &c.</p> <p>To this declaration the defendant demurred; and the superior court adjudged the same insufficient.</p> <p>The exception to the declaration is, that it has no allegation that the plaintiff made, and notified the defendant of, an election of what articles mentioned in the note the plaintiff would receive in payment.</p> <p>It will be agreed, that if the defendant had, on the day, tendered to the plaintiff one of the articles mentioned in the note, the plaintiff, to avoid the effect of the. tender, must aver, that he had elected to receive payment in the other articles, and that he had given the defendant reasonable notice of his election; and must state the time and place of such notice, that the esurr may judge of its reasonableness; and that the defendant may, if he choose, plead the tender, and then 1' traverse-this notice. -</p> <p>If the plaintiff would claim the benefit of an election, he must make it; and if he makes it, as it is a matter confined to his own knowledge, he mast notify the defendant of it. But he might waive the benefit, if he chose; and then the rignt of election would devolve upon the defendant. . . »</p> <p>There are cases, in which, in an action upon a contract, 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.</p> <p>In the present case, there ⅛ no such condition; but the contract is absolute, that the defendant will pay in rum, sugar, or molasses, at the election of the plaintiff.</p> <p>A second case of the kind specified is, where the consideration of the defendant’s promise is executory; as if the contract be to build a house. Here, the plaintiff must aver performance.</p> <p>But in this case, the consideration is executed, and the plaintiff acknowledges in this note, that he has received the value of his promise.</p> <p>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 agreement to account before auditors such as the plaintiff should assign, or to execute sucha deed as the plaintiff should devise, or pay the plaintiff’s costs of such a suit. Com. Dig. tit. Pleader, (C. 73.)</p> <p>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 intelligibteand 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.</p> <p>Suppose the plaintiff, on the day on which these articles were to be delivered, liad 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 satisfying this contract ? But it can make no difference whether the plaintiff expressly refused to make an election, or merely neglected to make it. In both cases, the plaintiff waives the right of chooging; and, from the nature of the case, the defendant must know it.</p> <p>This contract is expressed to be for value received, and is wholly for the 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.</p> <p>If A. should engage to build and paint a house for B., 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.</p> <p>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 election, it would follow, not that the defendant was not bound to pay at all, but that he might tender at either place mentioned, according to his own election.</p> <p>contended, that the omission of an averment in the declaration, that the plaintiff made bis election, and gave reasonable notice thereof to the defendant, was fatal. In support of this general exception, he relied upon the following propositions:</p> <p>1. That in an action on contract for collateral articles, payable on demand, the pl^ptiff must allege a demand, specifying the time and place, or his declaration will be ill. Dean v. Woodbridge, 1 Root, 191. Smith v. Leavens-•worth, 1 Root, 209. 3 Bac. Abr. 713. Dub. edit. Fitzhugh V. Dennington, 6 Mod. 227.</p> <p>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. I Bac. Abr. 432. Dub. edit. Grenningham v. Ewer, C'ro. Eliz. 396. 539. Bulky v. Hubbins, Cro. Car. 571, Holmes v. Twist, Hob. 51. Jjqmb's case, 5 Co, 24. Basket v. Basket, 2 Mod, 200.</p>

<p>MOTION for a new trial.</p> <p>This was an action of ejectment by the plaintiffs, in the right of the wife, claiming title to the demanded premises as tenants in common with the defendant, and alleging an actual ouster and exclusive possession by the defendant.</p> <p>The general issue was pleaded.</p> <p>On the trial, it appeared, that Joshua Hemfisted thé first devised the premises by a will dated the 17th of October, 1683, to Ms son Joshua Hemfisted the second, with this clause of limitation : “ Which lands, (to say,) all the lands given him, shall accrue unto the heir male of my said son, and not to be alienated; but if it should please God, he should have no heir male, then it shall become his daughter and daughters; and if it should please God, he should die without issue, then to be divided among my daughters, all or so many of them, as shall be then living.”</p> <p>In 1689, the testator died. No executor being named in the will, Elizabeth, widow of the testator, took out letters of administration in 1690, and proceeded to settle the estate as an intestate estate.</p> <p>On the 1st of October, 1706, the will was presented, by Joshua Hemfisted the second, to the court of firobatc in Hete-London county, for probate, which was refused. 1 he record of that court is as follows: “ At a Court of ‘Probate, held in jYew-London, October the 1st, 1706,</p> <p>« Mr. Joshua Hemfisted appearing at this court, pre-sen ted the will of his deceased father, Joshua Hemfisted. for probate; ,and this court, considering there is no executor 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.”</p> <p>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 holder: in Hartford in May next. He, the said Joshua Hemfisted, 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 prosecute the abovesaid appeal to effect, and answer all damages in case he make not his plea good.”</p> <p>This appeal was entered at the court of assistants, ⅛ 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 premises, do approve ami allow the said will to be the last will and testament of the said Joshua Hemfisted, deceased, and that the disposition of his estate ought to deregulated by it; always provided, that the children bom since the date of the will be allowed their portions out. of the whole estate equal to the daughters born before the will was made, to be deducted out of the portions of all of them by proportion, according to what is allowed to each of them by the will.” Elizabeth, the widow, and Joshua, the son, of the testator, were, at the same time, appointed administrators.</p> <p>In October, 1708, John Edgcomb and said Elizabeth whom he had married, preferred a petition to the general assembly for ⅜ 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 f róbate was entered, not at the next court of assistants, but at the next court but one ; and secondly, that the ap- * polices, now petitioners, had neglected to take a review of the decree, which they might have done.</p> <p>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 Hempsted the sedond then went into possession of the premises. His title was afterwards confirmed by releases from the other heirs and claimants.</p> <p>On the 27th of November, 1758, he made his will; whereby he devised the premises to his grandson Joshua Hempsted the third, son of his eldest son, Nathaniel Hempsted, deceased, and “ to the male heirs of his body lawfully begotten, by a succession for ever from generation to generation.” /This will, after the testator’s death, was regularly proved and approved.</p> <p>Joshua Hempsted 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 so!) of the eldest sou of Joshua Hempsted the third, and claimed under the second will as the heir to whom the estate was limited.</p> <p>In support of this claim, he contended, first, that the - will of Joshua the first was not legally proved and approved; secondly, that by the words of that will, Joshua the second took an estate in fee-simple; and lastly, that if he took an estate-tail, it could not be inherited by a female defendant.</p> <p>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; thát the 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.</p> <p>The jury, in pursuance of these instructions, found a verdict for the plaintiffs; whereupon the defendant moved for a new trial. This motion was reserved for the consideration of the nine judges, before whom</p> <p>insisted upon the same positions, which had been urged and overruled on the circuit.</p> <p>1. The will in question was not exhibited for probate, until many years after the death of the testator. The court of fir abate 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 allowance of any will, to the next 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 fudice. The subsequent pro-, ceedings of the general assembly could not remedyi this defect. .Jhe rights of the parties had become" vested in pursuance of the decree of probate. The general assembly, therefore, could not interfere in their legislative capacity; and as to the subject matter of this application* they had parted with their judicial authority.</p> <p>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 entailtnents. The policy of our law is opposed to them.</p> <p>3. The law, at the time of making this will, was not so, that an estate-tail became a fee-simple jn 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 lawful alienations of their lands and other estates. To determine what wa, a ‘‘ 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, entailrnents have been regarded as operative here to the same extent as they are in England; and, in pursuance of this idea, tenants in tail in this state have suffered common recoveries.</p> <p>I. 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 approve of the will, and direct that the disposition of the estate be regulated by it.</p> <p>It Is said, however, that the devisee did not appeal to the next court, as he was bound by law to do but to the next but one. This, we contend, is wholly immaterial. The court of assistants did take cognisance- of the jap* peal; and their decision has never been, reversed, or set aside. It cannot now be inquired into collaterally. Hush v. Sheldon, 1 Day, 170. Besides, the general assembly, on petition, ordered a rehearing for this very irregularity, among other things; and a second confirmation of the will took place, on such reheating. 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 Su/ireme Court of the United States. Calder et Ux. y. Bull et Ux. 3 Dal. 386.</p> <p>2. The will in question gave an< estate-tail to the devisee.</p> <p>The intention of the testator is the pole-star, by which we are to he guided, in the construction of a will. Lord Kenyon says, “ We almost spell every word in a devise to get at the intentioivof the testator.” In the case of Roe, ex dem. Dodson, v. Grew et ah 2 Wils, 324. Wilmot, Ch. J observed, that cases in the books upon w-ills 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 intention of the testator is too obvious to require any remarks to evince it. '</p> <p>The language of this devise corresponds with the description of an estate-tail in England. The words “ of his body” are not necessary in a will to create an estate-tail; it is sufficient, if the limitation be t* the testator’s seed, or his heirs male, or his fioslerity, or if any words are used which show an intention to restrain the inheritance to the descendants of the devisee. Co. Litt. 9. b. 27. a. 2 Bla. Com. IIS. and note (10), by Christian, The court will supply the words '■ of his body.” Denn, ex dem. Slater, v. Slater, 5 Term Reft. 335.</p> <p>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,” &c. 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 dem. Geering, v. Shenton, Cowfi. 410.</p> <p>3. Our statute regarding entail-ments 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.</p> <p>But it is unnecessary to inquire what the law was be» fore the passing of that act. It was clearly intended to have a retrospective operation. After declaring prospectively, that no estate, either in fee-simple, fee-tail, &c, shall be given, &c. it proceeds to declare, that all estates given in tail shall be and remain ?n absolute estate in fee-simple. Chap fiel v. Brewster, Kirby, 175.</p>

This was an action of trover, for certain goods, wares, anc] merchandise, specified in the declaration, The defendant pleaded the general issue, * ° On ⅛6 tr’ab b appeared, that the plaintiff was an °®cer> aB ? virtue of the following bill of sale from Hazard: “ Know all men by these presents, that I, Francis Hazard, of the town of Men-London, in the county of Menu-London, and state of Connecticut, for the consideration Df one thousand dollars, received to my full…

This was an action of assumfisit, brought against the defendants as owners of the brig ‘Eliza, for 65 pennyweight of Portuguese and Spanish gold, and 100 Spanish milled dollars, shipped by the, plaintiff at JVevis, on board said brig, to be transported, and delivered to a mercantile house in Arew-London, for which the master gave the plaintiff a bill of lading in the usual form. The defendants pleaded the general issue.

<p>WRIT of error.</p> <p>This suit was originally commenced in August, 1805, , , , , ' . . ** • r and was brought before this court, on a writ of error, in June, 1807⅛ when the judgment of the superior court was reversed, for the insufficiency of the declaration.(a) The cause being remanded to the superior court, and entered on reversal, the declaration was amended by stating the date of the writ by virtue of 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 terminated in a demurrer. The court gave judgment for the plaintiff. The defendant then brought this writ of error, setting forth the whole record in the court below. A new ground of error being now relied upon, it becomes 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 Killingly, in Windham 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:</p> <p>“ 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.</p> <p>“ Parish, for said Carder.</p> <p>i( The plaintiff says his declaration is sufficient.</p> <p>“ Backus and Learned, for the plaintiff,</p> <p><£ Windham, ss. County Court, August term, 1805.</p> <p>“ Amos Westcott, jun. of Killingly, in the county of Windham, plaintiff; William Carder, of said Killingly, and Isaac Stay el, of Foster, in the county of Providence, and state of Rhode-Island, defendants.</p> <p>“ In a plea of the case, demanding one thousand dollars damages, with cost, as per writ on file, dated August 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 defendants recover of the plaintiff their cost.” The plaintiff appealed to the superior court. The history of the cause subsequent to that period, has already been given.</p> <p>contended, that the judgment ought to be reversed on the following grounds:</p> <p>1. That the declaration was still bad: first, because, the writ by virtue of which Westcott arrested Stoyel, as set forth, gave him no authority to make the arrest; secondly,. because matters were joined in the declaration which cannot be joined.</p> <p>2. That the plea in bar was a complete answer te every material allegation in the declaration; as it contained direct and positive allegations, which it was necessary to demur to, or traverse, or avoid by new matter. .</p> <p>3. That the replication was clearly bad; but yet admitted in terms the truth of the plea in bar as pleaded.</p> <p>4. That the superior court could not render ar.y judgment against Stoyel, as the cause was not regularly before them.</p> <p>To all these exceptions Daggett and Goddard, for the- defendant in error, r. plied; and the case was very fully aigoed on both sides. But as the decision turned solch o.i one of the points, and that least considered by the counsel, a particular report of the arguments is deemed unnecessary.(a)</p>

<p>-9. and B. of Ness-York, and C of having been trade, dissolved their partnership, and published notice of such dissolution,for severa] weeks successively, ne'vy printed at ⅜⅛ ⅛ was ,. ?s.ual place ot doing business, and the other at JYew-Ltmdon, 'after-warr!s endorsed a bill of exchange in I’™-v the endorsee had, or had not,actual no-⅞ >lot ^ appear; pear, thatlfe ^correTptrd! e“t of the company» Held, that these facts constituted reasonable notice to him, and to every other person not a correspondent, of the company.</p> <p>The facts, which are supposed to constitute notice of a dissolution of partnership feeing ascertained, it is a question of Ime whether the notice he reasonable, or not, '</p>

<p>MOTION for a new trial;</p> <p>. A his was an action ol ejectment,</p> <p>The demanded premises had been mortgaged by -Aaron Bradley, under whom the defendant claimed, to</p> <p>the plaintiff, as collateral security for the payment of á pro-Biissory note for 1,616 dollars and 75 cents, and interest.</p> <p>The defendant in her plea alleged, that this mortgage was made upon a corrupt and usurious agreement, which was set forth specially, in substance as follows: On the 10th of May, 1796, John Bishop applied to the plaintiff for the loan of 5,020 dollars, for one year. The plaintiff refused to make the loan, unless Bishop would purchase of him a pair of sorrel horses, worth 200 dollars, at the price of 500 dollars, and add that sum to the money loaned; and would give his promissory note for the amount, payable in one year, with interest, endorsed by Jacob Ogden and Aaron Bradley. The$e terms were acceded to, and complied with, by Bishop. Before the S 1st of January, 1799⅜ he paid the whole sum contained in the note, and interest to that time, except 1,500 dollars, and then failed; in consequence of which the plaintiff' cRlcd upon Bradley to pay or secure the sum unpaid. Bradley accordingly gave the plaintiff his promissory note for that sum, and interest. On the 13th of May, 1800, the plaintiff called- on him for payment; but mot being able to make payment, at that time, he agreed with the plaintiff to give a new note for the principal and interest of his former one, the amount being 1,616 dollars and 75 cents, and to secure the same by a mortgage of the premises; which was accordingly done.</p> <p>The replication contained a general traverse of the several matters alleged in the plea; on which issue was joined.</p> <p>On the trial, it was contended by the defendant, that there was usury contained in the first mentioned note; and that the second note, secured by the mortgage, was given for the payment of part of the consideration of the first; and, of course, usurious. The plaintiff contended, that no usury was reserved in the first note; and although it should be found, that usury was reserved yet that it was proved, that upon the giving of the second note, which was secured by the mortgage, and which grew out of the first, all usury reserved in the first note was given up by the plaintiff, and never received 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 abandoned 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. * ,</p> <p>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 defendant thereupon moved for a new trial; and the court reserved the motion for the opinion of, all the judges.</p> <p>The direction of the court to the jury consists of two parts. To the first, we take no exception. The second, we contend, is erroneous; and it is not the less so, because it does not appear from the statement contained in the motion, but that the facts in the case were such, as to warrant the verdict which was found, in conformity 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 direction 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 interest, if there was any originally, was expunged. If an erroneous charge has been given to the jury, which 0 0 J 1 ’ might have had an influence on their verdict, this court -,, . . Will grant a new trial.</p> <p>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. Writings,-3 Term Rep, 537, Lord Kenyon 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 latter would be also void. In the celebrated case of Walton V. Shelly, 1 Term Rep. 296. it was taken for granted, both by the bench and the bar, that if the two promissory notes, the delivering up of which was the consideration of the bond on which the action was founded, were contaminated with usury, the bond was void. In Cutjibert et al. v. Haley, 8 Term Rep. 390. it was admitted, that if the bond, and the notes for which the bond was substituted, had been between the same parties, the bond would have been void.</p> <p>But admitting, that the second note cannot be considered 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 supposition, that those notes were partly good, and partly bad; it will still be difficult to distinguish one part from the other. You cannot put an ear-mark uppn the illegal part.</p> <p>But what would be the consequence, if the usurious part could be distinguished, and separated from the rest. If any thing, it would be this; that in every case where the illegal part was not actually reserved in the security, such security would not be usurious. A usurer taking a note for the principal and legal interest, and trusting to a parol promise, and the honour of the borrower, for a usurious premium, would stand on safe ground. Nay, if he should take two notes, one for the legal, and another for the illegal part, be might recover on the usury. former, after the latter had been avoided for</p> <p>The consideration of the new security is the same, as far as it goes, as that of the old. It is not so large; but that is all the difference.</p> <p>The case of Barnes et al. v. Headly et al. 1 Camfib. Cas. 157. is directly in point; and though decided at nisi firius, it was on an issue out of chancery, and was well considered. There the transaction was originally usurious. A compromise afterwards took place between the parties; by the terms of which, all the usurious interest was to be struck off, and a further time allowed for the payment of the principal sum advanced, with legal interest. An agreement to this effect was accordingly signed, and all the former securities and accounts between the parties were, destroyed. Chambre, J. held, that this agreement was void, as being given for the payment of firincifial whereupon usury had been reserved.</p> <p>It is laid clown by Powell, as an undoubted proposition, that wherever the consideration, which is the ground of the promise, or the promise itself, is unlawful, the whole contract is void. 1 Pow. on Cont. 176.</p> <p>The counsel for the defendant then cited the cases of Steers v. Lashley, 6 Term Reft. 61. Booth v. Hodgson, 6 Term Refi. 405. Mitchell v. Cockburn, 2 Hen, Bla. 379. fiarte Mather, 3 Fes. jun. 373. and Aubert v. Maze, 2 /?os. ⅛* Pa//, 371. to show, that a claim, which originated in an illegal transaction, cannot be supported. The courts cannot enforce a contract in the face of law, because a party to such contract may be under a moral obligation to perform it.</p> <p>1. The finding of the jury is such, that the court cannot say that there shall be a new trial, although there should have been á misdirection; because the finding shows, that the direction could have no influence on the verdict. The plaintiff denies the truth of all the matters alleged in the plea. The jury have found them all, and every part, to be untrue. There was nothing, then, for the opinion of the court to operate upon. Suppose the pleadings had been such, that the jury might have given a verdict, saying, in terms, that the first contract was not usurious. Then there would clearly be nothing for the opinion of the court to operate upon. But the jury have found that the first contract was not usurious. Ifhat they have found so with regard to the other part makes no difference,</p> <p>2. In the next place, we deny that the court below did misdirect the jury on the question of law.</p> <p>Let it be kept in mind, that the exception to the second note is, that it was usurious} not that it was void for want of consideration. The defendant must be hulden to the sole ground, that the note was usurious. This is his pfea. He avers, that the first note was usurious, and thát the second was a continuation of the first. On this ground alone, the direction of the court to the jury proceeded; and on this ground alone, the defendant r _ ° moved for a new trial.</p> <p>The question is, what is a continuation of the contract ? if the usury be expunged, and the borrower, from a sense of moral obligation, give a new note, this is not a continuation. It cannot require much argument to prove, that there may exist a moral obligation to pay borrowed money. The law destroys a usurious contract, not because it is immoral, but because it is inconsistent with the policy of the law. Even the statute against usury, while it renders void the contract, and inflicts a penalty upon the receiver, recognises the duty of the borrower to pay the principal sum borrowed. By the 9th and. 10th sections, it is provided, that the obligor in a usurious security may file his bill in chancery, and obtain a decree for payment of the principal only. But chancery would never enforce such payment, if the party were under no moral obligation to pay. Further, it is evident from the relief, which the statute provides in such case, that the law does not consider the principal as contaminated whenever it can be separated from the usurious part.</p> <p>The second note was not given for the purpose of carrying into effect the original contract. That was abandoned by the parties. The second contract was entered ii to by Bradley, in consideration of his having been benefited by the money loaned to him by Kilbourri. If he was under a mora! obligation to pay this money, as I have endeavouied 'o show that he was, the consideration was undoubtedly atoe!, and the contract neither usurious, nor a nudum pactum.</p> <p>Suppose Kith turn bad given up the first note, by-taking only the principal and lawful interest. He could not then be subjected to any penalty. Here, again,* the idea of a separation is clearly recognised. Suppose he had then lent the same principal and lawful interest for a longer period, and taken a note as security. Could it he pretended, that it would be usurious to lend the same money, which it was not usurious to take ? But. the case supposed is precisely the case-before the court-</p> <p>The counsel for the plaintiff commented minutely Upon the case of Barnes et al. v. Headly et al 1 Cam/!6. 15?. He contended, that the decision of Chambre, J. turned upon a verbal criticism, which made nonsense of the st itute. “ Contracts, whereby there shall be reserved,'’ kc. is intelligible; but “any fv-inci/ial, whereby mere shall be reserved,” ¡kc. is not. if Mr. Justice Chambre is not a better lawyer, thart this reporter makes him a grammarian, his opinions will not have much weigh!. “ Contracts is obviously the antecedent, to which the relatives whereupon” and “ whereby” refer. The decision of Mr Justice Lawrence, in Wright r, Wheeler¶ I Camfth. 165. in nods, rests on higher ground. His reasoning is clear and just; it is unanswerable, and directly ⅛ point for the plaintiff.</p>

. I his was a scire facias against the defendant, as the agent> attorney, factor, trustee and debtor of John T. Duryee, of New- York, an… 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 sufficient, if the vendee take possession immediately on the ship’s arrival at home.

<p>in an actio* of account, alleging, that 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 defendant, she went to London with a cargo or. freight; and afterwards performed several other vojages with a cargo on freight, and was, at last, sold at Cudizt and thatthe defendant received more than his proportion of the ship, both of the voyages and the sale: Held, that the plaintiff ami defendant were to be considered, under this declaration, as joint owners of the ship, and o'mtly interested in all her voyages, from, the time she was built until she was sold; and that in order to adjust the accounts of the parties, it was proper for the auditors to inquire into the earnings of the ship, and the losses incidental to the voyages.</p>

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-J . Ham W, Bull, deceased, claimed by virtue oi a devise of Caleb Bull, deceased, to William W. Bull. The defendant was an executor of the will of Caleb, and claim* ed by virtue of another clause therein.

<p>WRIT of error.</p> <p>This was an action of ejectment, brought by William C. Bull against Charles Seymour.</p> <p>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« cutors, judging it would be most beneficial to the legatees, leased the premises to the defendant. The superior court adjudged the plea to be insufficient. S'</p> <p>The case was submitted without argument, by Dwight, for the plaintiff in error, and Ingersoll, for the defendant.</p>

WRIT of error, Elijah Rumnill brought an action of account to the county court, in August, 1807, against Hezekiah Hunt* declaring that the defendant, being a practising attorney, in February, 1799, received of the plaintiff two notes to collect and account for; one against one Leister, payable to George Merrills, and endorsed by George Todd; the other, dated 30th March, 1787, for 8¿.10s. interest, made payable by Joseph Pease to David Todd, and on the 23d January, 1799,…

<p>WRIT of error.</p> <p>This was a petition in chancery brought to the superior court, by the honourable Oliver Ellsworth, deceased, stating that James Phelps and James Phelps, jun. being indebted to him, in the sum of 2,569 dollars and 49 cents, gave their note, payable the 1st of May, 1805, on interest, and conveyed, by deed of that dale, seven pieces of land, as collateral security; and on the 4th of March, ¡803, they became further indebted, in the sum of 1,000 dollars, payable at the same time with the former; and as collateral security for the 1,000 dollars, executed a deed of four other pieces of land, together with the same lands contained in the first mortgage : That the equity of redemption of James Phelfis, jun. had been attached;' and that of James Phelps., the eider, had been by him conveyed to others, who were made parties to the bill: that the money all remained due — praying for a foreclosure.</p> <p>None of the respondents, except James Phelfis, (then called junior,) appeared. And upon inquiry, the court found the facts stated in the petition, to he true; and found due upon the two mortgages, 4.531 dollars, and decreed, that if the respondents failed to pay this sum ■within a limited time, they should oe foreclosed of their equity of redemption.</p> <p>The widow and children of the petitioner, and the administrators upon his estate, were made parties to the writ of error. All the plaintiffs in error, except James Phelfis, were nonsuited.</p> <p>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.</p> <p>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 1,600 dollars, he should release all the title lie 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, permitted to redeem them. There can, be no more connection between two separate contracts, by the same person, than between two contracts by different persons. The lands are each charged with its own burdens-, and the one ought not to be onerated with the debts of the ° _ other. The object of a court of chancery, as to mortgages, is to place the mortgagor, after the law day, in the same situation he was in before. Before the Saw day, James Phelfis might have paid the 1,000 dollars, and Interest, and the last mortgaged lands would haw. been bis own, unencumbered. Chancery will then permit him, upon the same terms, to effect the same thing. The most oí the cases in the books, where the court compelled a redemption of both mortgages, are cases where the security was deficient; as in Purefroy v. Purefroy, 1 Fern. 28, But to sanction tisis decree, is to adopt the whole system of tacking debts to encumbrances off real estate; for there is the same equity for a mortgagee, that his bond or note should be paid, as that ins other mortgages should be. But in this way, the law requiring 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 between. the parties, when the application is made.</p> <p>But however this may be, where the mortgagor petitions, the mortgagee cannot, upon his own application, enforce the redemption of both mortgages, or neither, and thus vary his own contract. Pozv. on Mort. 511 — 5 \7. He now asks, that the court will not permit the lands last mortgaged, to be free from the encumbrance upon the payment of principal aud interest. This is asking the court to place him in a better situation than he placed himself; because he is not willing to take, what before the law day expired he might have bten compelled to accept. But the language of the petition is, that he should have the principal and interest upon each contract.</p> <p>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 tlie loan is secured by mortgage. 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 Le Hooke, 2 Vern. 207. Pope v. Onslow, 2 Vern. 286. Reason 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 adjudication ; 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 his favour, but only that the mortgagor may exercise his equitable rights in a reasonable time. The fact that the first land was included in the second mortgage, shows, that the parties designed that the whole land should be security for each debt.</p> <p>But if a decree were made upon the principles contended for, or this decree reversed, it could be of no possible benefit to the mortgagor; for if he should pay the money due on one mortgage, and the mortgagee should refuse to reconvey, 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 Powell, first satisfy both debts, before he could gain the legal title to either of the estates.</p> <p>This decree then, only effects directly, what then would be done circuitously.</p>

<p>If a person, intending to make h family settlement of his estate, in nature of a testamentary disposition, conveys lands to his sons, by sever»! ¡lecds, tk'one^roves ehareerv’ af ter the death of die grantor, will compel wklod'.o óei'í feet the tule of the grantee.</p>

<p>If in an action of slander, the defendant art-raits the speaking of the words,but jgromd°*⅛⅛ they were true, he does . thereby admit probable cause, so [⅛,° '"from*10 showing the want of it in an action for a vexatious suit.</p> <p>A person may be liable for prosecuting, after he is of full age, a suit commenced by him maliciously, and without probable cause, while an infant.</p> <p>In an action for a vexatious suit, the plaintiff having stated, that in the original suit* he recovered his costs, alleged, that he rain most unjustly imfirisoned on said suit, for the space of twenty four hours, and in defending the same expended large sums oj mo-7ieyf to tvitt the sum of 200 dollars in employing counsel to defend; also the sum of -200 dollars in paying witnesses, and maintaining thorn when attending on the trial; also the sum of 100 dollars in making various journeys to procure testimony, and in attending on the trial; without showing that such damages exceeded the costs recovered: Held* this was a sufficient allegation of damages.</p> <p>An allegation that words charged as slanderous were known to the party and to the public in general, to be true, is a sufficient allegation of their truth.</p> <p>SUPREME COURT OF ERRORS. 413 lime slie carried on the same as aforesaid, that if the then defendant had spoken the words as alleged in her declaration, they were true; and said charges imputed thereby were long before known to her, and to the public in general, to be true.” The declaration further alleged, “ That the plaintiff was most unjustly imprisoned on said suit for the space of twenty-four hours; and, in defending the same, expended large sums of money, to wit, the sum of two hundred dollars in employing counsel 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 insufficient. The plaintiff brought a writ of error to this court, at the term in June, 1808; when the cause'" was argued by Gould, for the plaintiff, and by Daggett and Hatch, for the defendants. The court being divided in opinion, continued it to advise, and ordered a further argument at this term, Sherioood and Hatch, in support of the judgment below. The acl';»n 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 principles. June, 1809. STERI.IS& V. Adams.</p>

This was an action of trespass quart clausum fregit, brought originally before Seth Overton, Esq. a justice of the peace. The defendant pleaded title; whereupon the cause was removed to the county court, according . . . , , , to the provisions of the stat. tit. 165. c. 1. s. 18. and thence came by appeal to the superior court.

<p>MOTION for a new trial.</p> <p>This was a scire facias against Dutcher, as garnishee ⅛ a process of foreign attachment,</p> <p>The original action was against Elisha Wells; Dutcher was served with a copy in April, 1805; in March, 1806, . , Benton recovered judgment; and. on the 8th ol May following, a demand was regularly made upon Dutcher tj,e effects of Wells in his hands to satisfy the execution, but none were exposed, and the execution was , . returned non est inventus.</p> <p>From Dutcher’s disclosure it appeared, that Ruluff Dutcher, by his last will, gave Wells’s wife a legacy of 700 dollars, payable in cattle and sheep at appraisement, by two equal instalments, the first at the end of three years, and the second at the end of six years, after the testator’s death; that the testator died in November, 1803, having appointed the garnishee in this process his executor; and that in January, 1805, Daniel Penfield gave him notice of an assignment of the legacy by Wells and his wife.</p> <p>The counsel for the garnishee contended, that the legacy was not by law subject to attachment jn 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.</p> <p>1. This legacy was not subject to foreign attachment for the husband’s debts, he not having reduced it to possession. 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. I Bac. Abr. 480. Co Dili. 351. Harg. U But. Note, 304. In Garforth v. Bradley, 2 Ves. 675. it was held, that wherever a chose in action comes to the wife, whether vesting before or after marriage, 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 Angler, Chan. Cas. 41. cited 4 Vin. Abr. 79. fil. 28. The same principle is recognised by Lord Kenyon .as undoubted law, in Milner v. Milnes, 3 Term Refi. 631.</p> <p>But a case from 2 Roll. Refi. 134, will probably be cited against us. It is abridged in -Qomyns’ Digest, tit. Baron and Feme, (E. 3.) thus: “ So, if a legacy be given to a feme covert to be paid twelve months after his [the testator’s] death, and the wife die within the twelve months, the interest goes to the husband; for it was vested in him, and he might release within the twelve months.” But the authority does not justify the abstract which Comyns has given. Montague, Ch. J. instead 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. IT. That the husband has “an interest,” which he might release, is correct; but that the property in the legacy absolutely vests, without any act of his to reduce it to possession, contradicts Ae plain principles of the common law. If, indeed, the case in Bolle went the length contended for by the plaintiff, 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 possession, it is, to ail intents and purposes, his. This would completely destroy the common law principle, that to give him title, he must have possession during coverture.</p> <p>2. No demand was made of this legacy of the executor, 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, &c. 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, there has been no refusal, on his part, to pay the legacy according to the terms of the will; and, therefore, they cannot be rendered liable to pay the amount out of their awn estate. .</p> <p>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 case1 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 interest 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 objectioa 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, applying this property to the discharge of the husband's debts? The chattels real of the wife, in case the husband dies first, leaving them undisposed of, survive to her, as well as her choses 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 against 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 invisible 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 bods da set?.</p>

<p>WRIT of error.</p> <p>This was suit by the Rands, declaring, that the defendants were incorporated, by the legislature of Massa-1 . 1 , chusetts, for the purpose of rendering Connecticut River navigable in a part of that state, by means of locks and canals: claiming for damages done them by the loss of ° a raft in passing through the locks» &c. of the defend-dnls'</p> <p>The writ commanded the sheriff “ to summon James Bull, one of the principal proprietors and directors of The Upper Locks and Canals on Connecticut River, in the county of Hampshire, and state of Massachusetts, and the proprietors of The Upper Locks and Canals on Connecticut River, in the county of Hampshire, to answer,” &c. 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 Hartford, in this state: that the corporation is established only within the jurisdiction of Massachusetts, 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 Hampshire, and state of Massachusetts: and that no legal notice to appear and defend in this suit had been given to said corooration.</p> <p>The plaintiffs replied, and recited a law of the state of Massachusetts, entitled “ An act for the better managing lands, wharves, and other real estate, lying in common,” whereby the copy of the writ left with the clerk, or one or more of the principal inhabitants, or proprietors, is made sufficient notice to any town, precincts, parish, village, or proprietor of any common or undivided lands, or other estate : and averring, that there is no other law in that state relative to 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 clone there, and had prescribed no court, at which only the corporation should be sued, and are entirely silent (unless by implication) as to suits o!*'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.</p> <p>To this replication there was a special demurrer,</p> <p>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.</p> <p>2. That, under the form of a traverse, the plaintifff have denied a mere inference of law from the facts before alleged in the plea.</p> <p>3. That neither in the traverse, nor inducement thereto, is any matter of fact contained, on which issue could be joined.</p> <p>The superior court adjudged the replication insufficient: upon which &he plaintiffs brought this writ of error.</p> <p>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 service is good; for lex neminem cogit ad imfiossibilias and no other service could be made but this. And indeed, by the plea, it does not appear that there is in Massachusetts a single member of this corporation, or that any other 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 reasonable notice is given; as was done by the court of the United States in the case of Chisholm, Executor, v. State «f 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 have.</p> <p>But it is said, the corporation can be sued only in this state of Massachusetts. The plea does not show th® possibility of a suit in that state. It ought to show what courts have jurisdiction, and how they have jurisdiction, an(] jn whdt 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, Cowfi. 173. ¡81.</p> <p>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 existence there, they may, notwithstanding, be sued here, as well as ah individual of that state. The action is tran-sitary, and either person or property will give jurisdiction to the court; and the property of Bull is liable. Harvey v. East.India Company, 2 Fern. S96. 6 Fin. Abr. 310. So, if a suit is brought against a town, society, bank, city, &c. the property of the individual inhabitants and stockholders must be liable on the execution. Corporations 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 incorporated.</p> <p>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-t, 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 inquire what benefit will result from the judgment.</p> <p>But the facts relative to the service are not before the court. The court can take no notice of the facts stated in the plea. The plea which was before the county-court is waived: and James Bull now appears as a natural fierson, and pleads to a suit brought against a Civil person.</p> <p>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 considered as abandoned.</p> <p>It is said, the court are not bound to notice the plea, because it is the plea of James Bull only, in bis individual capacity. But Janies 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 corporation.</p> <p>The facts thus disclosed show, that no legal notice has been given. The 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 process against the individual members. 1 Kyd on Corp. 272. 1 Tidd’s Prac. 209. Mills’s case, T. Raym. 152. But the process must be against the property of the corporation. Rex v. Gardener, Cowfi. 85. Rex v. Windham, Cowfi. 377. London v. Lynn, 1 //, Bl. 209. 5 Com. Dig. 569. And if the corporation has neither lands, nor goods, there is no way to compel an appearance, except by the authority of parliament.</p> <p>Service has not been made in conformity to our Statute, (which was made nearly a century before this corporation existed,) for no copy has been left with the clerk- selectmen, or committee-man, as is directed in the cases provided for by that statute. Because this service is not consonant to the statute, nor common law, the statute of Massachusetts is interposed. Without inquiring whether this service is in pursuance of that statute, 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 stale is to be directed as to the manner of serving that process by the laws of another state. Pearsall v. Dwight, 2 Mass. T. R, 84. Lodge v. Phelps, 1 Johns. Cas. 139.</p> <p>But a corporation cannot be sued out of the state which constituted it. There is the property of the corporation. 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 ¡t. Where there is no corporate property, a judgment is utterly unavailing, and cannot be enforced, any moic 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.</p> <p>But it seems to be claimed, that the property of each individual stockholder is liable. This certainly is contrary to the principles of the common law ; and 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 loaded with the immense debt of that institution ; anil no member of a town or society could travel in another 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 defendants to such penalties.</p>

WRIT of error. Beach brought his action of trespass to the county court against Edwards and Downs, declaring, that he was a tavern or innkeeper; that he was the owner of a certain painted board or sign, on which was written his name and occupation, to enable him to obtain custom; that the same was suspended beiore his house in the highway, and was of the value of twenty dollars; and the defendants, with force and arms, look and carried away, and burned and destroyed said…

THIS was an action of debt on bond, in the penal sllm 0y j 200 dollars, executed by the defendants to Elisha Hawley, Ezra Lewis and Ephraim Sherwood, a committee of the presbyterian society of New-Stratjord, an¿j to *-|le;r successors in office, alleging that the plain- ° ° 1 tiffs are successors in office to the obligees named in the bond.

<p>After judgment in an action of as-sumpsit, the promise alleged may be considered as an express or even a written promise.</p> <p>T. bat ft. being liable to pay the debt of 7'. did pay it, is a good consideration to support a promise by T. to repay It-</p>

<p>WRIT of error.</p> <p>Webster brought an action of ejectment against Wood-for¿. anc| the form of the writ was “ to answer unto Micah Webster^ who sues by David Grant, his conserva* tor•” The defendant pleaded the general issue, and put pimself 0n the country. “ And the plaintiff likewise, by David Grant, his conservator.” The verdict was for the plaintiff; and the record of the judgment was in common form, that the plaintiff recover seisin, &c.</p> <p>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.</p> <p>By this record it appears, that the suit has been prosecuted by aman 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 some 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, firochein amy, or attorney, but must always appear in proper person. Fitz. N. B. 27. Co. Litt. 135., 15 Vin, Abr. 134. A conservator in this state lias the same powers that the committee appointed in England to superintend the estate of a lunatic have under the sla-tute of 17 Kdw. II. 3 Bac. Mr. 367. Yet a suit cannot: be maintained in the name of such committee, but must be brought in the name of the lunatic. Cook v. Danton, 1 Brownl. 197. S, C. Hob. 2 15. Darde’s case, Poph. 141. Drury v. Pitch, 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 the process at law.</p> <p>It is said, that the record shows, that the parties appeared. 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 appearance. And when there is a defect in instituting a suit, or no appearance by the party in whose favour judgment is rendered, it must, at any time, be set aside.</p> <p>It is also said, that in certain cases, an idiot may appear by guardian, or attorney; and that by our practice, there is no inquiry as to the authority of a person signing 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 applies only to pleas signed by an officer of the court, which David Grant does not claim to be.</p> <p>Again, it is said, that the words which show he did not sue in propria persona may be rejected as surplusage. But if by these words the relation of the parties to the case is changed, they cannot be treated as mere surplus-age. In consequence of them, David Grunt could not be a witness in the cause; but his declarations oniigbrbe given in evidence against the claim of the plaintiff, and he himself become liable to both. Jumes Hatfield, 1 Stra. 548. Turner t. Turner, 2 Sira. 708. Hopkins v. Meale, 2 Stra. 1026,</p> <p>It does not appear, upon this declaration, that Mieah Webster was an idiot, or lunatic; nor can it be necessarily 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.</p> <p>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 conservator are nearly the same; one is of Saxon, the other of Latin origin. Conservators, like guardians, are appointed to take care of and oversee idiots, See. 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, Kirby, 174. the defendant 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 Harrison, 763. and aged persons defend by guardian. Hinde, 4. 146. And at few, the rule that idiots must appear in their own persons, does not extend to all who may have conservators; for he who is not an idiot á nativitate,bul becomes nan compos .mentis, shall appear .by guardian if 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.</p> <p>There is a difference in the form of declaring in England, and in this state. There, A. B sues, or pleads, by his attorney 1). Here, the parties plead by persons 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 himself conservator.</p> <p>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. Mr. 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 judgment is in his favour, the adverse party cannot procure a reversal upon writ of error for such cause.</p>

<p>MOTION for a new trial.</p> <p>This was an action of assumpsit.</p> <p>The declaration stated, that the plaintiff was the owner of a grist-mill; and the defendant, having it in contemplation to build one within a short distance, and being desirous of procuring materials for it, as well as of securing to it, when built, the custom of such persons as usually went for grinding to the plaintiff’s mill, proposed to the plaintiff that he should stop his mill on the first day of January then next, and the defendant would purchase the mill-stones, running geers, bolt, tackling, tools and utensils, which belonged to and were removable from the mill, and would pay the plaintiff for the same the sum of four hundred dollars. To this proposition the plaintiff acceded, and had performed every thing to be done on his part.</p> <p>The defendant pleaded the general issue.</p> <p>On the trial, the plaintiff offered to prove his case by 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 purpose of turning the upper mill-stone; that the lower part of the shalt rested and turned on a pivot at the bottom; and that the wheel was turned by the water being re-céived in the usual manner of mill wheels of that description. It was^ also agreed, that the mill-stones, run- • „ , . _ , . mng geers, &c. were, at the timé 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.</p> <p>The defendant objected to the admission of the evidence offered, on the rground that the contract set forth in the declaration, andoffered to be proved, was a contract 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.</p> <p>A verdict being found for the plaintiff, the defendant moved for a new trial.</p> <p>The general question in this case is, whether the contract set 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 “ sate of lands" itfc. ,</p> <p>1. The first inquiry is, whether any of the several articles of property, at the date of the agreement, were of such a nature as to be comprehended by the words of the statute? On this point it is hardly possible to conceive that a doubt should have teen entertained. As to a part of them, they were annexed to the freehold, and would pass by a deed conveying the land. %'Bl. 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. Lift, 32. a. % Bl. Com. 139. They are the subject matter of waste. In the case of The City of London v. Grey me, Cro. Jac. 182. it was determined, that it is waste to convert a corn-mill into a fulling-mill, although the conversion be for the lessor’s advantage. At the date of the agreement, they would not have passed by a will, unless it had been duly executed to pass lands; nor could they have been the subject matter of felony; or havd been taken and sold, on execution, as personal property. Indeed, a case can hardly be imagined, in which things of this kind, annexed 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 beconsider-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. -</p> <p>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.</p> <p>A contract derives its obligation from the assent of the parlies 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, it can never become so by reason of any change in the property.</p> <p>The only case, which can be found, to support a contrary doctrine is that of an anonymous case in 1 Ld. Eaym. 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 reporter). It would therefore hardly be entitled to much respect, as an authority, even if it stood tincontradicted. But it has been directly overruled. The case of Crosby y. Wadsworth, 6 East, 602. where the same question came tobe very fully considered, was solemnly decided the other way. This determination is justly treated by several late writers, as settling the point in' debate. ! Coniyn on Corn. 76, 77, Peake’v Ext. 214. Even Roberts, 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 decision in Crosby y. Wadsworth, retracted that opinion, and acknowledged that it was ventured, at first, on a slender foundation. \_Rob. Stat■ Erauds, p 15. of Advertisement; contra, p. 126,]] The only difference between these two cases is, that ⅛ the former the contract was for the sale of standing timber; in the latter, of standing grass. The question in each was the same, and the same as that in the principal case: for it is agreed to make no difference, if the chattel be annexed to the freehold, whether it be the growth of the soil, as1 grass and timber trees, or the product of skill and labour, as a corn-mill and a mansion-house. As the law, upon this point, has been so recently, and so authoritatively settled in Great Britain, it should not be expected that this court will be misled by the exploded error of CMdr Justice ' Treby.</p> <p>It may lie added, that if any of the several article.:.,. wh'ch were the subject matters of this agreement, are comprehended by the words of the statute; the agreement 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 Chafer v. Beckett is: conclusive on this point. [7 Term Reft. 20!. Sugden 64. Roberts on Frauds, p. 111 .J</p> <p>It may be claimed, in the next place, that this agreement is excepted from the operation of the statute, by reason of a part execution. On this point, it is understood, that the opinion of the judges at the circuit principally turned.</p> <p>[Smith, J. That circumstance is perfectly immaterial here. Decisions upon questions of evidence, at the circuits, are necessarily made with so much haste, and so little consideration, that they can hardly be viewed as authorities in any case.]</p> <p>It is not mentioned here, with a view to repel the authority of the decision; but simply to explain the reason why this point is dwelt on by us.</p> <p>[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 agreements 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 peifurmance is. such as to furnish evidence of the agreement; and this on the broad principle, that such performance removes the danger of perjury. J But this doctrine is exploded</p> <p>by the whole current of opinions and authorities of a later date. Per Lord dlvanley, in Foster v. Hale, 3 Ves. jun. 713.; fier Master of the Rolls, in Buckmaster V. Harrufi, 7 Ves. jün. 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 conclusion. Potv. on Cont. 292, 293. 309,</p> <p>From this principle, thus limited, it results, that eourts 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 fraud 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 respects. If extended farther than this, the doctriné would, in effect, be equivalent to a repeal of the statute.</p> <p>These distinctions, it is believed, are clearly traced, and well established, in the books.</p> <p>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 Loughborough once held, a material part. Main v. Melbum, 4 Ves. jun. It should be added, that this rule itself has recently been denied by Lord Redes-éale. Clinan v. Cooke, l Sch. ist Lef. 22.</p> <p>So, a delivery and receiving of possession under ?. parol agreement, is in many cases a sufficient part exe* cution; but the bare act of holding over by the tenant has not, it seems, been so considered; [3 Fes. jun. 378, 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, certain. [1 Pono, on Coni. 309 ,J</p> <p>It is said, too, that acts merely preparatory or ancillary to a contract, are not a part performance within the rule. Roberts, 139, 140. ■</p> <p>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.</p> <p>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.</p> <p>In further illustration of this point, it may be remarked, that in all cases of such agreements, there may be a Countermand and refusal, on either part, and performance'afterwards, on the other, does not avail. 1 Comyn on Cont. 78, 79. This point was expressly determined in the case of Crosby v. Wadsworth.</p> <p>The case of Lamas v. Bayly, 2 Fern. 627. goes the full length of establishing the proposition for which we contend. There the performance was without the assent of the party claiming to rescind; and the case was adjudged to be within the statute. It had this other feature, in which it strongly resembles the case at bar, that the performance relied on was a mere act of forbearance. This case is recognised as sound law, by a late writer, of considerable reputation, who asserts it as a general rule, that “ merely abstaining from doing an act” is nota sufficient part execution. JVctuland on Cont, 195, 196,</p> <p>In the principal case, the facts connected with the point in debate are these : The agreement was to have 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 averment 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 law required his dissent to be expressed, 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 dqpf not only without the defendant’s assent, but with fult.^notice of his dissent to their being done. A performance, under such circumstances, surely canbot be availing.</p> <p>but, owing to a sudden indisposition, was not in court when the qause came on.</p> <p>Bacon submitted a few remarks in support of these propositions:</p> <p>1. That this action was founded upon a promise of the defendant to pay 400 dollars, made upon a sufficient and unexceptionable consideration, viz. the plaintiff’s stopping his mill. If this had been the only consideration, 1 a J ’ there could not have been a doubt in the case. Is the-party less to be made liable on the same promise, because he was, in point of fact, compensated by other advantages, which the law will not take notice of.</p> <p>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, indeed, contemplated by the parties as severed at the time-of the contract. 1 Ld. Raym. 182. Bull. J\f. P. 282., Poulter v. Killingbeck, 1 Bos, tit Pull. 398.</p>

THIS was an action of false imprisonment. The declaration charged that the defendants forcibly arrested the plaintiff in Unficld, in Connecticut, and carried him to Northampton, in Massachusetts, and there confined him in prison.

THIS was an action of ejectment. The defendants , , , „ . ..... ... pleaded, severally, no wrong or disseisin; and issue was dosed to the jury. to prove their title, offered in evidence a writing, purporting to be a copy of a certificate of survey, signed “ Thomas Wells, Surveyor,” and K Thomas Hollister and Jonathan Hale, Committee.” It was certified to be a true copy of record by “ Josiah Hale, Register objected to the admission of this paper in evidence to the jury.

<p>A juror, who had married the sister of a party in a-uother case depending on the same principles as the one on trial, excused In n* silting tí. ugh. wife was then dead.</p> <p>Putting a letter into the post-office is a fact, from ^'may^nfer," that the per-it was addressed had notice "fitscontents.</p> <p>an action by the endorsee of»promisso-tiVdefendairt :1S emloi-or, on the ground that though the endorsement was a forgery,yet he had made it his own; ancj it having been proved, that his name had been forged on other jiotes discounted at the bank of which he had had notice, he cannot be permitted to prove, that the names of other persons had been forged tinder similar circumstances, of which; they had had notice. * ⅜</p> <p>The contes-vkiuai^mem-bers-of a. corporation aggregate, aparty to the suit, which were not made in the exercise of any corporate duty, cannot be received in evidence.</p>

On the trial to the jury, it appeared, that the plaintiff had delivered the property, at Hartford, to one Warner, a tin pedlar, with an understanding between them, that the latter was to carry it to Farmington, there take m 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.

ACTION of assumpsit. _ _ . , , , , , „ , On trial to the jury, Dwight, tor the defendant, oilered Mr. Ingersoll as a witness to prove a paper in his hands. Mr Ingersoll himself objected to producing the paper, 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.

<p>THIS was an action of ejectment.</p> <p>Kibbe, one of the defendants, died pending the suit, and before this term. On the trial, Allen, the surviving defendant, admitted himself to be in possession; and the only question was that of title. .</p> <p>The plaintiff claimed under Kibbe, the deceased defendant; and, to prove title, offered in evidence a deed from Kibbe, dated March 24, 1804, but which was not acknowledged, nor recorded.</p> <p>The defendants’ counsel objected to the admission of this instrument in evidence, on the ground that it conveyed no title.</p> <p>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 cautioned all persons not to purchase the land in question, as he claimed it by virtue of a deed from, Kibbe, not acknowledged. This caveat being read to the court.</p> <p>The counsel for the defendant still objected to this deed’s going to the jury, on the following grounds:</p> <p>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.</p> <p>2. If such demand and refusal had been proved, stili 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 ordering such acknowledgment to be made, being upon the town records, where the land lies, the title of the grantee would be comp'fctcd, though the grantor should persist in refusing to acknowledge the deed.</p> <p>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.</p> <p>By ths Couht. 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 refused. 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 passed unto a final issue according- to law.”(a) The legal trial here spoken of must mean a trial at law upon 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, agaimt Allen, the court are of opinion, that the caution having been duly entered, the interest in the grantee is secured; and consequently, the deed is good against a stranger.</p> <p>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.</p> <p>To this evidence the defendants’ counsel objected; 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.</p>

THIS was an action of ejectment. The general issue was pleaded, and closed to the jury. c J 1 The plaintiffs claimed title to the demanded premises, by the levy of an execution, in their favour, against Josiah 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.

THIS was an action of assumpsit. The declaration was in substance as follows .* That the defendant on the 20th of July was justly and truly indebted to the plaintiff, as assignee of Sampson and Foster, in the sum of seven hundred dollars, for so much money before that time and since the bankruptcy had and received to and for the use of the plaintiff, as assignee; for that Sampson and Foster since their bankruptcy delivered to the defendant certain books of ac* counts, notes…

THIS was an action of assumpsit by the second en* d°rsor of a promissory note against the first endorser, for one moiety of the amount of the note, paid by the . plaintiff, on the failure of the maker. The action was commenced in December, 1804. The case, as it appeared from the evidence, was as : In the latter part of the year 1800, Samuel Tudor held William Howe's note, endorsed by the defendant, f°r 500 dollars.