author: Swift, Ch. J. Hosmer, J. Gouid, J.

text:
    Drake and another against Chester.
    THIS was an action against the defendant, as sheriff of the county of Harford, for the escape of Solomon Carpenter from the liberties of the prison. There were two counts. The first alleged an escape on the 31st of January, 1817 ; the second, on the 3d <¡f February.
    The cause was tried at Hartford, February term, 1818, before Trumbull, Baldwin and Hnsmer, Js.
    On (lie trial, the judgment and execution, the commitment of Carpenter, his giving bonds to the defendant to remain a faithfu) prisoner, and his being thereupon allowed the liberties of the prison, were admitted. It was proved, that on the 31st of January, and on the 3d of February, Carpenter walked beyond the prison limits : that in the first instance, he- returned before any suit was brought for his escape; but that while he was without the prison Mini is, on the 3d o£ February, the plaintiffs procured a writ of attachment in their favour, against him, upon which lie was, by their direction, arrested. The defendant adduced evidence to prove, and claimed that he had proved, that the plain tiffs procured tiiis attachment to he issued, and served upon the body of Carpenter, while he was thus out of the prison limits, solely wills intent to prevent him from returning ; and that the officer who served the attachment, detained him,.by direction of the plaintiffs, without suffering him to get hail, until after service in the present suit was made upon the defendant, although Carpenter immediately requested to be carried back, and offered to give bail, The plaintiffs, or. the other hand, claimed, that they sued out the writ of attachment against Carpenter for a debt justly due them from him, and for no other cause ; and that lie never requested, that he might be permitted to return upon the execution, until after this suit was commenced. The court charged the jury as follows : « As to the first count; the sheriff is not liable for any escape, on the 31st of January, as it is agreed, that the prisoner returned within the limits, before any writ was served on the sheriff. As to the second count, for an escape on the 3d of February ; it is not contended, but that Carpenter was out of the limits of the prison, and that this writ was served on the sheriff before ho returned ; but if you find, that he was taken upon the attachment, and holden, for the purpose, and with the intent, of keeping him out of the limits, until a w rit could be procured, and served on the sheriff ; and that he was thus kept and prevented from returning, by the order and direction of the plaintiffs, the sheriff is not liable for this escape; as it is conceded, that Carpenter returned within the limits, when he ceased to be detained upon the attachment; and you will thereupon find a verdict for the defendant. But if you do not find, that Carpenter was thus detained, and prevented from returning within the limits, your verdict will be for the plaintiffs.” The jury found for the defendant; and the plaintiffs moved for a new trial, on the ground of a misdirection.

      A voluntary return of a prisoner, after an escape, is equivalent to a recaption on fresh pursuit,and, if before action brought, will excuse the sheriff.
    In case of a voluntary return of a prisoner, after an escape, it will be presumed, that the sheriff consented to receive him, until the contrary be shewn.
    Where a creditor, after his debt- or had escaped from the prison limits,arrested his body by a writ of attachment,' for the pur-it was held. pose of preventing his return, until he could bring that the sheriff was not liable for the escape. an action against the sheriff;

      Hartford,

    June, 1818.

      Daggett and Mitchell, in support of the motion,
    after remarking upon the impropriety of adopting a principle, which would authorize prisoners to transgress the prison limits at pleasure, provided only that they took care to return seasonably, contended, 1. That the plaintiffs’ rigid of action against the sheriff vested immediately on the escape of the prisoner;, and his retain within the limits could not discharge that right of action, unless the sheriff again received him. This the sheriff was not bound to do ; and if he did, the fact must distinctly appear. In an action by the sheriff on the bond, a plea that the prisoner returned, is bad, without an averment that the sheriff again accepted him as his prisoner. ■Freeman v. Davis & al. 7 Mass. Mcp. 200. The Sheriffs of

      Norwich v. Bradshaw, Cro. Eli». 53. Gambler v. Larkin, Com. liep. 553. The court ought, then, to have charged the jury, that unless they found that the sheriff received the prisoner on his return, after the escape on the 31st of January, they must find for the plaintiffs, on the first count.
    g. That the charge on the second count was incorrect. Admitting that a return before action brought would excuse the sheriff, yetan intention or willingness to return, without actually returning, will not. It is no excuse to the prisoner, or his keeper, that he was detained by legal process. Even if his return had been prevented by the act of God, it would have been no excuse. 1 Schiu N. P. 656. n. (121.)

      J. W. Edwards and T. 8. Williams, contra,
    insisted, 1. That a voluntary return of the prisoner is equivalent to recaption on fresh pursuit; (Bonafous v. Walker, 2 Term. Rep. 126. Chambers v. Gambler, Com. Rep. 554.) which is unqueslion-ably a good defence to the sheriff against a claim for a negligent escape. It was admitted, in this case, that the prisoner returned on the ,31st of January, and remained in the custody of the sheriff until his escape on the 3d of February. Why, then, should it be left to the jury, to find whether the sheriff received him again as his prisoner ?
    2. That the second escape made no stronger case against the defendant than the first, except as to what resulted from the plaintiffs’ own act; which they could not take advantage of, to the defendant’s prejudice.
   Swift, Ch. J.

When an imprisoned debtor departs from the liberties of the prison, it is a negligent escape in the sheriff. A recaption, on fresh pursuit, or a voluntary return by the debtor, before action brought, will excuse the sheriff; and he is not liable to an action for the escape. The sheriff, however, is not bound to receive the prisoner after such escape, but can, if he pleases, maintain an action against him on the bond to abide a faithful prisoner; for such departure from the liberties of the prison, is a breach of the condition of the bond.

.Whenever a man prevents an act from being done, lie shall suffer the consequence of it: he shall derive no advantage from its not being done. If the plaintiffs had, by force., detained the debtor out of the liberties of the prison, till they hud commenced a suit for the escape, against the sheriff*, it ⅛ conceded,!hat they could not sustain an action. Jlut it is said* ^is case, the plaintiff’s made use of.a lawful process for the collection of a debt, as they had good right to do ; which j usti-f£es the act'. The plaintiffs had no right to make use of the forms of law for ai1 imjw oper purpose. They had no right to arrest the body of the debtor, by an attachment, with the express view to prevent him from returning to the prison* and to charge the defendant with the escape. This is an abuse of legal process ; and if the plaintiffs be allowed to recover, they will be enabled to take advantage of their own wrong.

It has been insisted, that the charge of the court was incorrect ; that they should have charged the jury, not only that the debtor must return within the liberties of the prison, but that the sheriff must consent to receive him, in order to excuse him from the escape. But the charge of the court was correct. It is sufficient that the debtor had returned within the limits of the prison, before the suit was brought r and it will be presumed, that the sheriff consented to receive him, unless the contrary appears.

Hosmer, J.

It is established law,'that fresh pursuit and recaption, before action brought, is a good defence against a demand for a negligent escape. That the one in the case before us, was of this description, is unquestionable. Most clearly, it was not a voluntary escape ; winch is an escape with the consent, or by default, of the sheriff. Bonafous v. Walker, 2 Term Rep. 131.

The voluntary return of a prisoner, is deemed equivalent to a recaption. It matters not whether the escape was fay a breach of the gaol, or by a departure from the limits. A return to the place of imprisonment, whether within the four walls, or within the gaol liberties, infers the same legal consequences. For a return to the limits, if the prisoner escaped from them, is. a return within the custody of the sheriff, and in contemplation of law, within the prison. Bonafous v. Walker, 2 Term Rep. 126. Peters & Gedney v. Henry, 6 Johns. Rep. 121. Jones v. Abbe, 1 Root 106. Undoubtedly, the sheriff may maintain an action on the bond given to him, conditioned that the debtor shall remain a faithful prisoner | although, after having escaped, the prisoner should return to the prison. The escape is an irreparable breach of the condition, and the damages will be liquidated according to equity. If the sheriff is subjected lo no disadvantage, they will be merely nominal. Gambier v. Larkin, Comyns 553. Freeman v. Davis & al. 7 Mass. Rep. 200. Abel v. Bennett, 1 Root 127. Lord v. Atwood & al. 2 Root 336.

As to the rat ape on the 3d of February, it must be considered precisely as if tiie prisoner had returned to the limits before the plaintiffs commenced t heir action. This he would have done, had he not been prevented by the restraint put upon him by the plaintiffs, with the unjustifiable intent of producing an escape, of which they might avail themselves. The plaintiffs would have taken advantage of their own wrong.

I can discern no legal difference between the creditor’s taking a prisoner by force from the limits to create an escape, and the forcible restraint of him, after his escape, to prevent his return. Nor is the case more favourable to the plaintiffs, by reason of their abuse of legal process, to achieve an object ⅛0 un justifiable. The charge to the jury, in my judgment, is entirely correct, and a new trial ought not to be granted.

Gouid, J.

I fully concur in the opinion, that the direction of the court was right; and will merely add a remark, upon a single topic, adverted to, in the argument. It has been suggested, that, upon the principle of the defence, a prisoner may be in the daily and hourly practice of transgressing the limits of the gaol-yard ; and yet, by seasonably returning, skreen the sheriff from liability : and that, in this way, the intended effect of imprisonment, considered as the coercive means of collecting judgments, may be, in a great measure, defeated. This suggestion is not well founded. The law has provided a sufficient check for such irregularities in prisoners. For if, upon notice to the sheriff, or gaoler, of any such temporary escape, he does not commit and confine the party, so escaping, within the walls of the prison j any subsequent transgression of the limits, by the same party, will be deemed a voluntary escape, which cannot be purged, either by his voluntary reí urn, or a recap! ion on fresh suit. And thus the creditor lias, practically, all the remedy that the law ever designed for him.

The other Judges were of the same opinion.

New'trial not to hi> granted.


source: Caselaw Access Project

author: Swift, Ch. J. IIosmeR, J.

license: Public Domain

text:
    Norton against Lewis.

      Hartford,

    June, 1818.
    Promissory notes within the statute regarding negotiable paper, are •entitled to the same days of grace, as inland bills of exchange.
    Where the indorser of a promissory note, shortly before it became payable, agreed with the holder, in consideration of time being given, that he would pay the note; it Was held, that this was equivalent to proof of demand and notice, and satisfied the usual averments of demand and notice in the declaration.
    The precise day of •demand and •notice it is not material to allege in the declaration ; it being sufficient to, make out the proper time in «proof.
    THIS was an actios of assumpsit, brought against the defendant as indorser of a promissory note, stated to be made on the 1st of January 1814, at Meriden, by Aaron Evarts, by which he promised to pay Theophilus Hall, or order, one year after the date, 100 dollars. Hall indorsed the note to the defendant ⅜ and the defendant to the plaintiff. The declaration averred, that when said note became due and payable, according to the tenor and effect thereof, to wit, on the 1st day of January 1815, at Meriden aforesaid, the payment of said note, so indorsed as aforesaid, was demanded ff that payment was refused 5 and that of such demand and refusal ** the defendant, afterwards, to wit, on the 1st day of January, 1815, aforesaid, at Meriden aforesaid, had notice.”
    A special verdict was found containing these facts : The note in question was made and indorsed, in the manner stated in the declaration. The first day of January, 1815, was Sunday,* On Monday, the plaintiff presented the note to the maker for payment; who neglected to make payment; and the defendant, on the same day, gave notice to the indorsers. On Tuesday, the note was again presented for payment; and notice of non-payment was again given to the indorsers. At this time, the defendant, in consideration that the plaintiff would wait till the expiration of the time of suing for the then next March term of the Mew-Haven county court, agreed to pay the note to the plaintiff; and the plaintiff did wait accordingly.
    The case, thus made, was reserved for the consideration and advice of the nine Judges.

      Candee, for the plaintiff,
    maintained the general proposition, that the defendant’s promise to pay the note was a waiver of demand and notice. First, if the promise was made after the note fell due, it is clear, beyond a doubt, that it is a waiver. Piersons v. Hooker, 3 Johns. Rep. 68. Lundie v. Robertson. 7 East 231. Secondly, promissory notes, iu this state, are not entitled to days of grace. Of course, the note had become payable at the time of the defendant’s promise. Thirdly, if the note was entitled to grace, so as not to become payable until Wednesday, still the defendant’s promise
      m Tuesday was a waiver. Leffingviell al. v. Pierpont, I Johns. Ca. 99.

      E. Huntington, for the defendant,
    contended, 1. That our late statute making promissory notes negotiable, had subjec ted them, in all respects, to the “ laws relating to inland bills of exchange and that they were, of course, entitled to three days of grace. Such lias been the invariable con-strurtion of a similar statute in England. Brown v. Harraden, 4 Term Rep. 148. The expressions of our late statute are similar to the provisions in the charters of our banks relating to notes indorsed to them. No one ever doubted that such notes are entitled to grace.
    2. If this note was entitled to grac e, it had not become payable when the promise claimed from the defendant was made ; and it would be going quite too far, to hold, that such a promise should operate prospectively, so as to cure any future negligence that the holder might bejfuilty of, It would be more reasonable, as well as more agreeable to th» analogies of law', to say, that the promise was made on a tacit condition, that the promisee should do, on his part*. what the law required him to do.
    S. The facts found do not support the declaration. Th* plaintiff states, that he made demand, and gave notice, on the 1st of January. The verdict finds, that the demand and notice were made and given, on the 2d and 3d. If the plaintiff meant to rely upon the verbal promise of the defendant, he should have declared upon it.

      Candee, in reply, as to the last point, observed, that it is not necessary to state in the declaration the precise time of making demand, and giving notice. It is sufficient, if demand and notice, at the proper time, be shewn in proof. If we are right on the other points, we have shewn what is equivalent $ and have thereby satisfied the averments in our declaration.

        October Session 1811, c. 7. Val. 2. p. 73.

       3 & 4 e. 9.

   Swift, Ch. J.

When the statute made promissory notes assignable according to the custom of merchants, it communicated to them all the properties of negotiable instruments. As these arc entitled to days of grace, it follows, of course, tliat notes made assignable by statute, must be entitled ten days of grace.

The declaration, in this case, is drawn in the same manner as if the -note ..was not entitled todays of grace ; and-, it appears, from'the facts found by the special verdict, that the plaintiff relies upon a waiver of the demand and notice. The defendant insists, that the plaintiff cannot recover, because he has not alleged demand and notice, on the days when they ought to have been made and given : and that there lias been no waiver, but a new promise, if any tiling, on which the action ought to have been brought.; so that the verdict does not prove and support the declaration. In all cases where a party relies on a waiver of demand and notice, he may allege the demand and notice in the same manner as he would have- done, if actually given ; and proof of the waiver is equivalent to the proof of demand and notice.

The precise day is not material to he alleged in the declaration, wfaeirdemand is made, or notice given. It is sufficient for the plaintiff to prove demand and notice on the proper day.

The agreement found in the special verdict, is a waiver of demand and notice.

y. It did not extinguish the liability created by the indorsement, or constitute a new ground of action.

I am of opinion, that the plaintiff is entitled to recover.

IIosmeR, J.

I have no doubt that days of grace must he allowed on a negotiable, promissory note. It is unquestionable, that they are allowed on bills of exchange, both foreign and inland. By ourlafte statute, all promissory notes, to the amount of thirty-five dollars, or more, for the payment of money only, and made payable to order or bearer, are made assignable and negotiable, according to Use custom of merchants, and the laws relating to inland bills of exchange. The English statute of the 3d and 4th oí Jinn. c. 9. on the same subject, though it has not identically the same expressions, yet they arc of equivalent force. Under ibis law, promissory notes are held entitled to days of grace. Brown v. Harraden, 4 Term Rep. 148. A promissory note, negotiated by indorsement, is an inland bill of exchange j ami no. reason can be assigned for making any difference between them. Notes indorsed at any of the banks, have always been considered as entitled to days of grace, by reason of an expression in their charters, precisely like the one in the act concerning promissory notes.

As to the promise made by the defendant, I am of opinion, it was a Waiver of strict demand and notice. It falls within the reason of many cases which have been determined.

It was not necessary that the plaintiff should have founded his salt on the verbal promise, or even make mention of it in his declaration. The gist of his action is the same as if no promise had been made; and the mode in which he has declared, relying on proof of an excuse for his omission to make demand or give notice, has too frequently been sanctioned, to remain questionable.

The plaintiff, in my opinion, is entitled to judgment.

The other Judges were of the same opinion.

Judgment to be entered for the plaintiff.

         October Session, 1811. e. 7-


author: Swot, Ch. J. IIosmer, J.

text:
    Adams against Pease and another.
    THIS was an action of trespass quart clausum fregit, alleging, that the plaintiff was lawfully seised and possessed of a certain tract of land, lying in the town of Suffieli, bounded North on the plaintiff’s own land in Connecticut river, East on the centre of the bed of Connecticut river, South on John Wright’s land in said river, and West on the West bank of said river, containing five acres of land covered with f he water flowing in said river j and that the defendants, during the plaintiff’s seisin and possession, with force and arms, and against the peace, entered upon said land, and the wafer covering said land, with fish-boats, seines, &c. and being so entered, did, then and there, with like force, catch and carry away 3000 of the plaintiff’s fish, called shad, then being and swimming in said water on said land, and converted the same to their own use, whereby the plaintiff wholly lost said fish.
    The plaintiff owns a large farm in Suffieli, bounded East on Connecticut rive)-. The locus in quo lies between the shore and the centre of the river, against the farm. It is above Eitfield falls 5 and is passable with flat-bottomed boats, carrying from five to thirty tons burden, up and down the river, but not with ships and vessels | though some vessels, built above, have been floated down. The waters there, and for a considerable distance below, are never affected by the vising and falling of the sea. The river, from its mouth to this place, and far above, is, and always has been, used for the purpose of transportation by water, and is, for that purpose, of great public importance ; the right of such use being common to all the citizens of the state. The trespass complained of, was committed, by drawing a seine over the locus in quo, during the preceding fishing season, from the opposite shore, and hauling it back, thereby taking fish.

      The owners of land adjoining Connecticut river, above the flowing and ebbing of the tide, have an exclusive right of fishery, opposite to their land, to the middle of the river; and the public have an easement in the river, as a highway, for passing and repassing with every kind of water-craft.

      Hartford,

    June, 1818.
    A case embracing this statement was reserved for the consideration and advice of the nine Judges,

      Sherman and Scarborough, for the plaintiff’,
    contended, that he had an exclusive right of fishery in the locus in quo. The law determines whether a fishery in a river is several or common, by enquiring whether it. is an arm of I he sea, or in other words, whether the tide Junes and ebbs there. The sea belongs to the public 3 and a river, so far as the tide flows and ebbs in it, participates of the nature of the sea ; and a fishery there is as common as a fishery in the sea. But when you get where the sea reaches not, the soil, the water, the fishery, is private property. The public may have an easement there, — a right of passage ; a highway j but nothing more. 2 Roll. Mr. 170. pi. 14. Com. Dig. tit. Prerogative. D. 50. The case of the Rojal Fishery of the Banne, Davies? Rep.152. 155. {Dub. ed. 1762.) llarg. Law Tracts 5,6. Lord Fitxwalter’s case, 1 Mod. 105. The King v. Smith, Doug. 443, 4. Palmer v. Mulligan, 3 Caines 318. & seq,

      Goddard and Edwards, for the defendants,
    insisted, that Connecticut river, at the place in question, was navigable}. and that there could not, be a right of several fishery, (without a grant from the public, or a prescription, which the plaintiff did not claim) in a navigable river. Barren v. Matthews, 6 Mod. 73. S. C. 1 Salk. 357. Jt anl v. Creswdl, Wittes 368, In England, the sea flows and ebbs in livers about as far as they are navigable 3 which accounts for the indiscrim¿«ate use of these terms. But it is not «0 in the long rivers of this country. It would be preposterous to say, that the Mississippi, above the flowing and ebbing of the tide, may be held and enjoyed as private property. The supreme court of Pennsylvania have decided, upon great deliberation, and in view of all the English authorities, that the Susquehanna, above the flowing and ebbing of the tide, is a public river ; and that the owners of the banks have no exclusive right of fishery opposite to their land. Carson v. Blazer ⅜ al, t. Binn. 475.
    The legislature of this state have always treated Connecticut river as public property. They have regulated the fisheries in it, and the ferries and bridges over it.
   Swot, Ch. J.

By the common law, in the sea, in navigable rivers, and navigable arms of the sea, the right of fishing is common to all. In rivers not navigable, the adjoining proprietors have the exclusive right. Rivers are considered to be navigable as far as the sea flows and reflows ; and thus far the common right of fishing extends. Above the ebbing and flowing of the tide, the fishery belongs exclusively to the adjoining proprietors ; and the public have a right or easement in such rivers, as common highways, for passing and repassing with vessels, boats, or any watercraft. 2 Roll. Abr. 107. Davies’ Rep. 56. [or 155, 6. Dub. e.d. 1762.] A more perfect system of regulations on this subject could not be devised. It secures common rights, as far as the public interest requires; and furnishes a proper line of demarcation between them and private rights. As we have adopted the principal part of these regulations, I think we ought to take the whole, and deckle, that above tide-water the adjoining proprietors on rivers have-the exclusive right of fishery, and the community a right of passing them, as highways, with every kind of water-craft.

I am of opinion, that the plaintiff is entitled to recover.

IIosmer, J.

"In rivers not navigable,” says Lord Mansfield in Carter & al. v. Murcot & al. 4 Burr. 2164. the proprietors of the land have the right of fishery on their respective sides, and it generally extends ad f.lnin medium 11 quip. But in navigable rivers, the proprietors of the laud oti each side have it not.” These principles of common lar have nor been controverted, and indeed, are incontrovertible.

The case is reduced to this question merely, whether the river Connecticut is a navigable river, where the tide does not ebb and flow ? if the term navigable is construed according to its popular import, every river capable of being sailed upon by a boat, however small or shallow, is embraced by it. Many of the inconsiderable streams which fall into Connecticut river, are of this description. The same common law, however, which has established the principle, has furnished a definite explication of the disputed term. Every river, where the sea ebbs and flows, is, by the common law, considered as navigable ; and all rivers not thus distinguished, are not navigable. 2 Roll. 170. pl. 14. Royal Fishery of the Banne, Davies’ Rep. 152, 5, 7. Carter & al. v. Murcot & al. 4 Burr. 2162. The King v. Wharton & al. 12 Mod. 510. Hale de jure maris, Harg. Law Tracts 5. Lord Fizwalter’s case, 1 Mod. 105.

The distinction between rivers navigable and not navigable, that is, where the sea does, or does not, ebb and flow, is very ancient. The King v. Smith, Doug. 441. The former are called arms of the sea, while the latter pass under the denomination of private or inland rivers. “ That is called an arm of the sea where the tide flows and re-flows, and so far only, as the tide flows and reflows.” Hale de jure marts, cap. 4. « If a river runs contiguously between the land of two persons, each of them is owner of that part of the river, which is next his land, of common right.” Rex v. Wharton & al. 12 Mod. 510.

The detriment, which, it has been argued, the public must derive from this doctrine, is entirely ideal ; and rests on a misconception of the law. All rivers above the flow of the tide, in reference to the use of them, are public, and of consequence, are subservient to the public accommodation. Hence, the fisheries, ferries, bridges, and the internal navigation, are subject to the regulation of government.

The argument, from inconvenience, must be very powerful, to cast a shade on a long established principle. Here I discern no inconvenience. On the other hand, the doctrine of the common law, as 1 have stated it, promotes the grand ends of civil society, by pursuing that wise and orderly maxim of assigning to every thing capable of ownership, a legal and determinate owner.

The other Judges were of the same opinion.

Judgment to be entered for the plaintiff.


author:
Swivt, Ch. J. TRümbuíi, J.
      Hosmeb, J. Peters, J.

text:
    Bush and another against Canfield.
    THIS was an action on the case, brought by the plaintiffs as the only surviving partners of the late firm of JVor-⅞* Bush. The declaration stated, that Norton Sp Bush, on the 20th of February 1812, entered into a contract in writing with the defendant, in these words : “ It is agreed by and between the parties here subscribing, that Judson Canfield agrees to deliver to the order of Norton <$• Bush, at New-Orleans, 2000 barrels superfine wheat flour, to be delivered in good shipping order, on or before the first day of May next: the flour to be regularly inspected at New-Orleans, at the time of delivery $ the price of the superfine to be T dollars per barrel; and in case the whole quantity to be delivered should not pass as superfine, but should pass as good mer-ehantahlejSne flour, the said Canfield will have a right to deliver of the above named 2000, say 1000, barrels, that should be inspected and branded fine, at 50 cents less than the price of superfine, as above. And Norton <$• Bush do agree to receive the flour as here described, at the port of New-Orleans, and to pay therefor 5000 dollars in advance, as is agreed by us, calculating to be in 15 or 20 days from this date; 3000 dollars more to be advanced at four months from the date of the first advance for the said flour; and the balance then remaining due to be paid in six months from the*, date of the delivery of the said flour. It is agreed, that Norton if Bush shall be allowed four months interest on 1000 dollars.

      A. and IS entered int® a written contract, whereby B. agreed to deliver to A. at New-Orleans, 2000 barrels of flour, on a certain future day, at the price of 7 dollars per barrel; and A. agreed to receive the flour, and pay 5000 dollars in advance,and the residue by certain instalments, subsequent to the time of delivery. A. accordingly advanced 5000 dollars, but B wholly failed to deliver the flour. At the stipulated time of delivery, the price of flour at JYeio-Qr fea»* was ⅛, so cents- 111 an action brought by J$. against 8. stating’ the contract, and assigning* a breach, it was held, that the rule of damages was the money advanced, with interest.
    [Signed.] Judson Canfield.

      Norton ⅜ Bush.’*

    That in pursuance of this contract-, Norton $• Bush paid over to the defendant, on the 12th of March 1812, the sum of ¡ 5000 dollars $ and were ready, at New-Orleans, on the 1st of
      May 1812, to receive the flour; and have kept and perform» ed all the covenants on their part; concluding with a general assignment of breach, on the part of the defendant, and a demand of damages.

      Hartford,

    June, 1818.
    The defendant pleaded Mot guilty, and several special pleas, on which issues were taken.
    The cause was tried at Litchfield, February term, 1818, before Edmond and Smith, Js.
    On the trial, it was proved, that the price of superfine flour at New-Orleans, on the 1st of May, 1812, was 5 dollars, 30 cents, per barrel, and no more. The court, in their charge to the jury, directed them, that if they should find the issues ⅛ favour of the plaintifls, the rule of damages would be, the amount of the sum advanced by the plaintiffs to the defendant, and the interest thereof, from the time it was so advanced. The jury found a verdict for the plaintiffs, with 6,771 dollars dafnages $ and the defendant moved for a new trial, m the ground of a mis-direction.

      M. Smith and A, Sterling, in support of the motion,
    contended, that the rule of damages, in this case, ought to be — • the value of the flour, at the time, when, and the place, where, the contract was to he performed j and not the money advanced. They insisted, that the contract was still open, having never been rescinded; that this action was founded upon if; that the covenants were independent; and that, as there was an undisputed breach on the part of the defendant, the plaintiffs were entitled to recover such damages, and such only, as the contract would give. The money paid by a party, in part-performance of a contract, can be recovered back, only in case that contract is rescinded ; and then only in an action of indebitatus assumpsit. To establish these positions, they cited Terry §- at. v. Dnntae, 2 H.'Black. 389. 1 H'ms. Saund. 320. n. (4.) Thorpe v. Thorpe, 1 Salk. 171. Havens v. Bush, 2 Johns. Rep. 387. Seers v. Fowler, 2 Johns. Rep. 272. Wilcox v. Ten Eyck, 5 Johns. Rep. 78. Weston v. Downes, Doug, 23. Power v. Wells, Cowp. 818.

      Benedict atid Sherman, contra,
    remarked, that the covenants must be taken to be either independent or dependent. if they are independent, and the defendant’s inferences are correct, the plaintiffs have not recovered enough, as the val-ge of the flour would exceed the present verdict. But of this the defendant cannot complain, on a motion for a new trial. The verdict has done him no injustice. If the covenants are dependent, the plaintiffs are entitled, and would have been, had they advanced nothing, to recover, at least, nominal damages for the breach. In addition to these, they are also entitled to recover as damages what they have paid. This sum they have lost, by the defendant’s total breach of contract.
    The defendant cannot say to the plaintiffs, “ if I had performed my contract, you would have sustained a loss j and therefore, you shall suffer the same loss now.” If the defendant had performed his part of the contract, though the flour were not worth the money advanced, the plaintiffs must have borne the loss. But the defendant cannot, without performance, claim the benefit of a loss, which has never ac erued. He is not to derive the same advantage from a breach of his contract, which he might have had from a per formance of it.
   Swivt, Ch. J.

Where a man-contracts to deliver any ar - ticle besides money, and fails to do it, the rule of damages is the value of the article at the time and place of delivery, and the interest for the delay. Though the promissec may have suffered a great disappointment and loss, by the failure to fulfil the contract; yet these remote consequences cannot, in such cases, betaken into consideration by courts, in estimating the damages. It is always supposed, that the party could , have supplied himself with the article at that price; and iff he intends to provide against the inconvenience arising from : such a disappointment, he must make a contract adapted to such objects. In the present case, if the plaintiffs had paid to the defendants the full sum for the two thousand barrels of flour contracted for, then they would have been entitledrto re - cover the value of it at New-Orleans} w here it was to have been delivered. If the price had risen between the time of purchase and delivery, they would have made a profitable speculation; otherwise, if it had fallen. If they had paid nothing, if the flour had advanced in price, they would have been entitled to recover the amount of such advance. If the price had fallen, they would have been entitled to recover nominal damages for the breach of the contract; though they might Iiavebeen subjected to a great loss, if the contract had been fulfilled. This proves, that the actual damages suHerod by a party cannot always be the rule of estimating damages for a breach of contract.

In this case, the plaintiffs advanced apart of the purchase money ; that is, the sum of five thousand dollars ; and no parallel case has been adduced to shew what ought to be the rule of damages for not delivering the flour. I think the one adopted by the court at the circuit, to be just and reasonable. The defendant has violated his contract; and it is not for him, to say, that if he had fulfilled it, the plaintiffs would have sustained a great loss, and that this ought to be deducted from the money advanced. It is not for him to say, that the plaintiffs shall only recover the reduced value of a part of the flour which was to have been delivered, in proportion to the advanced payment. The contract was for the delivery of an entire quantity of flour ; and no rule can be found for an apportionment in such manner. The plaintiffs have been disappointed in their arrangements; the defendant has neglected his du ty ; and retains in his hands five thousand dollars of th® money of the plaintiffs, without consideration. Nothing cat? be more just than that he should refund it; and I am satisfied, that a better rule cannot be adopted in similar cases.

TRümbuíi, J.

concurred, substantially, in this opinion. He remarked, that the plaintiffs, by paying the 5,000 dollars, have performed all that the contract required them to do, before the receiving of the flour. As the flour was not delivered, they were not hound, by the contract, to pay any more. The defendant, on the other hand, has wholly failed of performance, at the time stipulated. He is liable for the breach ; and it will be conceded, that if the plaintiffs had done nothing, they would be entitled to judgment, with nominal damages. Shall they not now recover what they have advanced upon the contract, previous to the breach ? This sum is the actual loss, which they have sustained, by the breach. Complete justice has been done; and no new trial ought to be granted.

Edmond, Smith, Beainabd and Petees, Js. were of the same opinion.

Hosmeb, J.

This is an action on an express contract, to recover damages for its non-performance. On the 20th day of February 1812, the defendant agreed to deliver to Norton ⅜* Bush, at New-Orleans, two thousand barrels of superfine flour, on or before the 1st day oí May then next. On their part, they contracted to pay 7 dollars per barrel. Of this sum 5,000 dollars were advanced, and the residue was payable at different periods, posterior to the time prefixed for the delivery of the flour. It was not delivered, and the jury have given their verdict for damages in the sum of 6,771 dollars. At the time when the flour should have been delivered, the price of that article, at New-Orleans, was 5 dollars, 50 cents, per barrel, and no mope. The court directed the jury, that if they found the issues joined in favour of the plaintiffs, they should find for them to recover of the defendant 5,000 dollars, being the amount of the sum advanced by the plaintiffs to the defendant, and the interest thereof from the time the same was so advanced.” For a supposed misdirection, the defendant now applies for a new trial.

Had the contract been rescinded, in an action for money had and received to recover the sum advanced, the charge to the jury would have been precisely correct. The agreement, however, was open ; the action is founded upon it, and damages áre demanded for the breach of it. So long as the agreement is open, it must be stated specially. Weston v. Downs, Doug. 23. Towers v. Barret, 1 Term Rep. 133. 1 Chitty, 341. and the consideration paid cannot be recovered. The case of Dutch v. Warren, 1 Stra. 406. cited in 2 Burr. 1011. does not contravene, but supports, the latter branch of the above proposition. Although an action for money had and received was sustained, (in my opinion, illegally,) while the agreement remained in full force $ yet the rule of damages, deliberately settled, was, hot the money advanced, but the damages in not transferring the stock, at the time prefixed. The sum paid by the plaintiff was 262L 10s. The stocks, however, having fallen before it was to have been transferred, the verdict, being the price of stock at the infraction of the contract, was for 1751. only.

The jury should have been directed to give the plaintiffs the damages sustained by the breach of the agreement, on the day when it should have been performed. In other words, the plaintiffs were entitled to the price of the flour estimated at 5 dollars, 50 cents, per barrel; and on this basis, connected with the other circumstances relative to the point of damages, the verdict should have been founded, The ruis laid down, is indispensable, to give efficacy to the implied con(jjtjon attendant on every express covenant. “If l fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal.” 2 Black. Comm. 443. In conformity with this, it is said by Spencer, J. in Pitcher v. Livingston, 4 Johns. Rep. 15. that “ in actions for a breach of covenant, the damages are to be estimated according to the value of the thing when the covenant was broken.’* There have been many determinations for not transferring stock pursuant to contract § and the established rule of damages is, the price of it at the time of trial, or on the day when it should havé been transferred. Shepherd v. Johnson, & East, 211. M'Arthur v. Lord Seaforth, 2 Taunt. 257, In the case of Gray v. Portland Bank, 3 Mass. Rep. 390. it is said by the court, “ that the price of stock at the time it should be transferred or delivered» (and the same rule applies to other personal property,) shall be that by which the damages shall he assessed.”

He who controverts the principle advanced in the cases cited, must supply a better. If he would sustain the charge to the jury in this case, he must contend, that for breach of contract the sum to be recovered is, not the damages sustained by the non-performance, but the consideration Which the plaintiff may have advanced. A rule so unwarranted as this, so opposed to familiar practice, and numerous decisions, so arbitrary, bearing not at all on the contract of the parties, and mistaking the very ground of the complaint, cannot be supported.

It is contended, that the plaintiffs have not recovered ft greater sum than is due to them j and that justice does not require a new trial. To this proposition I cannot accede. If the benefit derivable to the plaintiffs from a compliance with the agreement, can be ascertained, we shall possess an infallible criterion of the damages sustained, Now' the facts stated, furnish unquestionable data, and reduce the enquiiy to a mere question of calculation. The damages sustained, were, the price of the flour when the contract was first broken | that is, the. sunt of 11,000 dollars. If the contract is to be considered as mutual and independent, the plaintiffs are entitled to that sum, and are bound to pay the defendant 14,000 dollars, the sum stipulated for the purchase. But, if the agreement is dependent on the prior performance of the contract by the defendant, there must be deducted from the above mentioned sum, the balance which would be payable to him on deli very of the flour, that is, 9,000 dollars. The effect of this would be precisely the same, as if the flour had been delivered, and the plaintiffs had performed the agreement on their part. ⅞uacunque via data, the verdict is not conformable to legal justice. This view of the subject makes it unnecessary to consider what was the precise character of the contract.

That the plaintiffs have sustained a considerable loss on the supposed legal result, is unquestionably manifest. A fallacy has existed in not ascribing it to the right cause. It did not arise from the non-performance of the defendant’s agreement. Before the period had arisen when the flour was to have been delivered, the loss had accrued by the fall of it in the market. It is equally obvious, that the defendant had derived a correspondent benefit. The verdict of the jury, in opposition to the contract of the parties, reverses their condition. It rescues the plaintiffs from their loss, and deprives the defendant of his gain. In effect, it arbitrarily subjects the defendant to a warranty, that flour shall not sink in price, and renders him the victim of the plaintiffs’ unfortunate speculation.

It has been contended, that in as much as the defendant did not fulfil his contract, he ought not to derive a profit from it. To this I reply, that the obligations of the parties depend exclusively upon their own voluntary agreement. There was a hazard accompanying the contract. If flour rose in the market, the defendant would become, proportionally, a loser; and if it fell, he would be a gainer. The event on which the result was suspended, was favoura-ble to him ; and of this he cannot be deprived, unless it is the duty of courts to make contracts, not to enforce them.

I am dear in my opinion, that a new trial ought to be granted.

Peters, J.

The rule of damages prescribed by the court on llic circuit, seems to have done substantial justice between the parties; as itis admitted, that in an action for money had and received, the charge would have been precisely correct. And we are now called upon to deprive the plaintiffs of a righteous verdict,and to turn them round to another form of action wherein the damages must be the same, or to another trial wherein the damages will be greater, on a mere technical objection. If, however, the rule relied on he fixed and inflexible, this must be done; and instead of fiat justiiia, our maxim must be fat lex.,..mat caelum. But with due deference to the learned opinion, which we have just heard, the rule of damages, in cases of this sort is not so much like the laws of the Medes and Persians as it has been represented. Even in Gray v. The Portland Bank, 3 Mass. Rep. 390. though Sedgwick, J. said, that « the price of personal property, at the time when it should be delivered, shall be that by which damages shall be assessed yet Sewall, J, fortified this rule by the equitable circumstances of the case — “ that the plaintiff made no payment, and after tendering it, was not obliged to deposit his money, or hold it unemployed.” But this decision, though made by two able and learned judges, is not to be considered as authority in opposition to a recent and unanimous opinion of the court of King’s Bench; whose decisions are the best evidence of the common law. I allude to the case of Shepherd v. Johnson, 2 East, 211. Which was debt on bond, conditioned to replace stock on a given day ; and the question was, whether damages should be calculated at the price when the stock was to be delivered, or on the day of trial ? The learned judge who tried the cause, was of opinion, that as the agreement had been broken, and the stock never replaced, the plaintiff was entitled to recover the larger sum, (the value on the day of trial,) and the verdict was taken accordingly, with leave to the defendant to move the court to reduce the damages. But this opinion was sanctioned by the court. Grose, J. said, the true measure of damages, in all these cases, is that w hich will completely indemnify the plaintiff for the breach of the engagement. If the defendant neglect to replace the stock at the day appointed, and the stock afterwards rise in value, the plaintiff can only be indemnified by giving him the price of it at the time of trial. And it is no answer to say, that the defendant may be prejudiced by the plaintiff’s delaying to bring his action; for it is his own fault that he does not perform his engage-uient at the time.” The same measure of damages was adopted before Lord Eldon in Payne v. Burke, Mich. T. 1799. 2 East, 213. n.

But it is said, the rule of damages in assumpsit is not applicable to this case, because here is an express contract. But in Weaver v. Bentley, 1 Caines, 47. money advanced under a sealed contract, was recovered in assumpsit ; and the court said, We are of opinion he (the plaintiff) had his election, either to proceed on the covenant, and recover damages for the breach, or to disaffirm the contract, and resort to his assumpsit to recover back what he had paid.” And Livingston, J. who dissented merely with respect to the form of action, said, that covenant will lie on the instrument to recover back all that has been paid.

But what can the defendant gain by a new trial ? Docs he wish to be subjected to the value of the flour, when it should have been delivered, or at the time of the trial, at the hazard of recovering the sums stipulated, without any pretence of fulfilling the contract on his part ? Or, does he expect the court will aid him in his iniquity, by giving him 3,000 dollars of the money advanced for his breach of faith ? Though the flour might have been purchased at dS'exv-Orleans, at less than the stipulated price, non constat that it would have been an unprofitable cargo in some other market. And after the plaintiffs had advanced their money, and been at the hazard and expense of a voyage to Mew-Orleans to ship it home, or to some other market, is it to be endured that the defendant should pocket their money, and bid them defiance ? « Flour, gentlemen,” says this honest defendant, “ is plenty and cheap at Mew-Orleans. You may buy it, if you can find money and credit, there, and get your money back, in Connecticut, when you can.” I take it to be well settled, that « a new-trial ought to be granted to attain real justice, but not to gratify litigious passions upon every point of summum jus”— Farewell v. Chaffey & al. 1 Burr. 54.: That “ an application for a new trial is to the discretion of the court, who ought to exercise that discretion in such manner as will best answer the ends of justice;” and where complete and substantial justice has been done,” tiie court will not “ send the cause down to be re-tried on a technical objection in point of law”—Edmonson v. Machell, 2 Term Rep. 4.: That 4t though the ground of the verdict should be wrong, yet if it clearly appeared to the court now, that, upon the whole, no injustice bad been done to the defendant 5 or if it clearly appeared to the court now, that the plaintiffs, by another form of action, could recover all they have got by this verdict; the court ought not to grant a new trial.” Foxcroft & al. v. Devonshire & al. 2 Burr. 936.

Gould and Chapman, Js. gave no opinion, having formerly been of counsel in the cause.

New trial not to be granted.


author: SwiíTj Cli. J. Smith, J. IIosmer, J. Gouid, J.

text:
    Miller against Ward and others.
    The declaration stated, that the plaintiff, in pursuance of an agreement with certain persons in Vermont, transported down Connecticut river a raft of lumber; which the defendants attached at Hartford, in a suit against a third person ; and thereupon entered into a written agreement with the plaintiff, to pay him a certain sum

      per thou-the custom-onhhulraw-ing the lumber out of the water; that the plaintiff offered and began to draw it out, but was prevented by the defendants ; and that, by reason of the premises, the defendant became liable to pay the freight, and in consideration thereof, promised o pay the same, but failed to perform their promise ; Held, 1. that this action was brought on the written contract, which was on sufficient consideration; and 2. that the written contract was, of course, the measure of the plaintiff’s damages, which could not be reduced in consequence of a previous part-payment of freight, made by other persons.
    THIS was an action of assumpsit. The declaration stated, that on the 20lh of July 1816, the plaintiff contracted with Hyde Clark and others, to transport a raft of lumber, being 180 thousand feet, from Hartland hi Vermont to East-IIaddam in tills state, and for such transportation, they agreed to pay him 6 dollars for each thousand feet; that the plaintiff, in pursuance of this agreement, immediately sailed with the raft, and arrived with it at Hartford, on his way to East-IIaddam, on the 26th of October 1816 ; that while he lay at Hartford with the raft, the defendants attached it, in a suit in their favour, against Reuben Chapman and Levi Bellows, for a debt claimed to be due from them, and, by virtue of such attachment, took the raft out, of the plaintiff’s possession ; that the defendants, thereupon, made and executed their written promise and agreement, dated the 3d day of December, 181.6, hy which they promised the. plaintiff to pay him at the rate of 4 dollars, 50 cents, a thousand, or the customary freight on said lumber, meaning thereby the customary freight for transporting lumber from Hartland to East-Had dam, on his drawing said lumber out of the water, agreeably to custom : that the customary freight is 6 dollars on each thousand feet of lumber ,■ that the plaintiff, at Hart-for(^ on 6th of December, 1816, offered to draw said turn-ber out of the water agreeably to custom, and did, in fact, draw out, a part of the same, and was proceeding to draw out, and would, in fact, have drawn out, the whole of the same from the water, pursuant to said contract, but the defendants forbade the plaintiff to do the same, nor would they suffer him to draw out the same from the water according to custom ; and that, by reason of the premises, the defendants became liable to pay the plaintiff the sum o!' 1,200 dollars as freight, and for transporting said lumber as aforesaid ; and being so liable, the defendants afterwards, to wit, on the 10th of December* 1816, assumed upon themselves, and faithfully promised the plaintiff to pay said sum, when they should be thereunto requested 5 yet the defendants, their promise aforesaid not regarding, have never performed the same, though often requested and demanded 5 to the plain-tiff⅞ damage, &c.

      Hartford,

    June, 1818.
    The defendants pleaded non assumpserunt; and on this Issue, the cause was tried at Hartford, February term, 1818, before Trumbull, Baldwin and Hosmer, Js.
    On the trial, it was admitted, that the defendants made the writing mentioned in the declaration; that the customary freight for transporting lumber from Hartland to East-Had-dam, was four dollars, fifty cents, for each thousand feet; and that the contract made by the plaintiff with Hyde Clark and others, was to pay the customary freight. The plaintiff introduced no testimony to prove Any other promise by the defendants, than the one contained in the writing ; but he examined witnesses to prove, and claimed that he had proved, that the defendants prevented him from drawing the lumber out of the river according to the terms of the writing. He therefore claimed, that be was entitled to recover damages on the written promise. The defendants, on the other hand, claimed, that as the plaintiff had failed to prove any promise by the defendants to pay freight, other than the one contained in the writing, he was not entitled to a verdict. The defendants also contended, and adduced evidence to prove, that the plaintiff, on the 16th of November 1816, received of Hyde Clark and others, in advance, to pay tolls at the locks on the river, two sums of money, amounting to 148 dollars ; which, in case the plaintiff was entitled to recover any thing, ought to be deducted from the freight claimed by him. The plaintiff insisted, that no deduction ought to be made on that account | and attempted to shew, that the sums of money alluded to, were borrowed by him ol‘ one Julius Chapman, for which he gave his notes. The court charged the jury thus : “ This is an action on the written contract, in which the defendants promised to pay-the plaintiff four dollars, fifty cents, or the customary freight, on his drawing the lumber out of the water, according to custom. It is agreed, that it was not drawn out. The question, then, arises upon the issue before you, whether the defendants prevented the plaintiff from performing the contract on his part, and drawing the lumber out of the water. If you find, that the defendants did so prevent the plaintiff from performing his contract, and drawing out the lumber, your verdict will be for the plaintiff, and you will find for him to recover of the defendants the whole sum contained in the contract, in damages ; otherwise, you will find for the defendants.” The jury returned a verdict for the plaintiff; and the defendants moved for a new trial, on the ground of a misdirection. The questions of law arising on such motion were reserved for the consideration and advice of the nine Judges.

      T. 8. Williams and Jl. Smith, in support of the motion,
    contended, 1. That this declaration was not on the written contract. It stated the plaintiff’s carrying down the raft on freight; the attachment by the defendants; the written* contract; the plaintiff’s attempt to perform j the prevention by the defendants; and then averred, that by reason of these fads, the defendants became liable to pay the plaintiff 1,200 dollars as freight, and promised to do so, when requested ", and concluded, by alleging a breach of this promise. The written contract was only one of the train of fads* which were stated by way of inducement. No breach of it was alleged; and no consideration for it appeared, it being, by custom, the duty of the carrier to draw the lumber out of the water. The last promise was the only one put in issue by the pleadings. It was the gist of the action; and ought to have been proved.
    2. That the sum of 148 dollars, advanced to the plaintiff towards the freight, ought to have been deducted. The defendants were not liable, on any principle, for more freight than was due.

      Mitchell and Candee, contra.
   SwiíTj Cli. J.

The declaration is grounded on an express written contract, which was on good consideration, the drawing of the timber out of the river ; and the allegation that the defendants prevented him from doing it, ⅛ equivalent to a performance. Whether the plaintiff has, in a tech - nical manner, denied that the defendants have performed their contract, is a question not necessary 1o decide on this motion*

•The contract being express to pay customary freight, the defendants had no claim for any deduction, on account of freight paid by another person. The charge of the court, then, was correct, on both points; and a new trial ought not to be granted.

Thumb rax, and Edmond, Js. were of the same opinion*

Smith, J.

I think the court erred, in this case, in not submitting to the jury the claim which was made, that 148 dollars had been paid in advance. This error was probably occasioned by considering the action as brought on the written contract | which, in my judgment, was also incorrect. I have rather viewed it as an action on the case, founded on all the facts, concluding in assumpsit. In the first place# the contract is stated as made between the plaintiff and Hyde Clark and others In Vermont. In the next place, the plaintiff states, that he proceeded with his lumber down the river, and towards East-Haddam, its place of destination, till it arrived at Hartford, when the defendants attached the lumber, and took it out of the plaintiff’s possession. The plaintiff then states, that these facts having taken place, the defendant promised the plaintiff, in writing, to pay the customary freight for transporting lumber from Hartland in Vermont to East-Haddam, on his drawing the lumber out of the water. He then proceeds to state what is such customary freight, and excuses himself for not drawing out the lumber, by alleging that he was prevented by the defendant. Having proceeded thus historically, and with great minuteness, to state all the facts regarding the transaction, and among other things, the promise ⅛ writing, the declaration concludes in the following w'ords “ And by reason of the premises, the defendants became liable to pay the plaintiff the sum of twelve hundred dollars as freight, and for transporting said lumbci as aforesaid ; and being so liable, afterw ards, to wit, on or about the 10th day oí December, 1816, assumed upon themselves, and faithfully promised the plaintiff to pay said sum, when they should be thereunto requested ; yet the defendants, their promise aforesaid not regarding, have never performed the same, though often requested and demanded j to the plain tiff’s damage,” &c.

Having taken this view of the declaration, I would ask, whether the written promise is stated as forming the gist of the action ; or whether it is stated, among other facts, as making a part of the « premises,” by reason of which the defendants became liable ; and, in this way, making a part of the consideration for the final promise ? We find in the declaration, no breach of the written promise alleged : it is merely stated, and left among the mass of facts from which the broad foundation is laid to conclude, that “ by reason of the premises, the defendants became liable to pay the plaintiff 1,¾00 dollars j” which is made a consideration for the final promise.

It is of no use to enquire, whether this is an action on an express or an implied promise ; because, whether it is one or the other, the final promise is the only one laid as the point of the action, and the only one of which any breach is assigned. and on which issue is joined by the plea of non assumpsit,

This has been treated by counsel, as being an action upon an express written contract, to pay a certain sum, as a re - ward for drawing lumber out of the water. But nothing can be more incorrect, than this view of the declaration, which states, that by reason of the premises, the defendants be came liable to pay 1,200 dollars as freight, and for transporting said lumber as aforesaid and not for drawing it out of the water. Indeed, to my apprehension, the declaration has but one aspect, and proceeds throughout upon the ground of recovering that freight of the defendants, which Clark and others agreed originally to pay. This claim the plaintiff attempts to establish, as well by the fact that the defendants have taken the lumber out of his hands by their attachment, as by their written promise.

If 1 am correct in the view I have taken of the declaration, it will follow, that any payment, made by Clark, ought to go In mitigation of dapiages for it would be manifestly unjust to permit the plaintiff to recover freight of the defendants, which he had already received of Clark and others.

It was insisted in argument, that the plaintiff ought to recover his whole freight of the defendants, and leave Clark and others to recover back the money they had paid. But I would never permit a man to recover money, to which he is not entitled, merely to lay a foundation to recover it back in another action. Nor do I see on what principles Clark and others could recover back money, which they have paid, in part performance of their contract, when the plaintiff has done all in his power to fulfil on his part, but was prevented, after having performed nearly all the service, by having the property taken out of his possession, by force of law. It appears to me to be a principle of universal application, that where two persons become independently liable for the same services, a payment by one, is a payment for both. This must be so,* or the person performing the service will inevitably . obtain his pay twice. In such case, they are in the nature of collateral security. In the present case, I consider the defendants as agreeing to pay the debt of Clark and others; to which they were induced, by the supposition, that the plaintiff had alien on the lumber for his freight; and whether this opinion was correct, or not, the object undoubtedly was, to pay him what was justly due to him, and no more. Hence we find them agreeing to pay the same sum originally stipulated to be paid by Clurk and others, and for the same services ; considering the delivery at Hartford, and drawing out of the water, equal to the same thing at East-Iladdam.

Braixard, J. was of the same opinion.

IIosmer, J.

The defendants attached a raft of lumber, and took it into their possession. They, by a written agreement, promised the plaintiff to pay him at the rate of four dollars, and fifty cents, a thousand, or the customary freight on said lumber; which, it was admitted, amounted to the sum specified, on his drawing the raft from the water. The declaration states these facts, (the admission excepted,) and then sets forth performance on the plaintiff’s part. It avers, that he drew out a part of the lumber, and was proceeding to draw out the residue, when the defendants forbade him, and would not suffer or permit him to do any thing more. This js equivalent to an actual fulfilment of the contract on his part . For, if he who is to be benefit ed by another’s fulfilling his agreement, is the occasion why it is not carried into execution, the party hound to the performance, will be in the same condition as if the agreement had been literally fulfilled.. (Vid. cases cited Pow. on Con. 417 to 420.) Assuming for the present, that a sufficient breach of the defendants’ contract is laid in the declaration, the plaintiff’s cause of action is complete. The declaration contains an express promise of the defendants, to pay the plaintiff a certain sum, for the performance of a specified act; the performance of that act, on the defendants’ request; and a refusal to pay the stipulated hire. The legal sufficiency of the consideration admits of no dispute. Any thing, however trivial, done on the request of another, whereby the performer is subjected to a loss, or the other party derives a gain, is a valid consideration. (Cases cited in Comyns on Con. 13, 14.) The plaintiff’s declaration, unnecessarily, and to no substantial purpose, after having averred the preceding facts, laid an implied contract, making the express engagement, and the performance of it by the plaintiff, the consideration of such promise. No proof was offered to evince any agreement, besides the express assumption comprised in the writing set forth. On this view of all the material facts in the case, it must be admitted, that the express promise, and the perforo-mance on the part of the plaintiff, were proved; and that there was no other promise made. Unquestionably, the law implied no agreement: expressum facit cessare taciturn. What, then, was the duty imposed on the court ? To instruct the jury, as they did, that if they found the defendants prevented the plaintiff from performing his contract, by drawing out the lumber, they must render their verdict in his favour, for the full sum stipulated. To this charge I can discern no imaginable objection. It declared the law as applicable to all the facts proved, and stated a principle to which no objection has been, or can be, made.

It is said, that the declaration does not contain a sufficient allegation, shewing, that the contract was not performed by the defendants. Let it be admitted, that the plaintiff’s declaration is deficient in not alleging a breach of the defendants’ Contract. No question on that point could arise at the circuit; ¡nor is any presented by the motion. Under the issue of non-assumpsit, in an action on express promise, by our practice, which formerly was the correct practice of the English courts, no enquiry relative to payment, or performance, could be raised. Ripley v. Fitch, 1 Root 404. 1 Chitty 472. Still less can it be contended, that the jury were to enquire whether a breach of the promise had been duly laid. That enqui-ry formed no part of the issue on trial. It is a question arising on the face of the record, which a demurrer, or motion in arrest, is adapted to call into view. Before the jury, the legal enquiry was, whether the plaintiff had sustained the alleged promise; not, whether the contract averred had been followed by the allegation of a sufficient breach. Accordingly, the motion on this subject is silent. Had the objection been duly made, it might, immediately, have been obviated, by an amendment, Before this court, it is, in general, clear, that no objection is competent, unless it has been the subject of adjudication, Jones v. Fales, 4 Mass. Rep. 254.

The money paid by Hyde Clark to the plaintiff, it is suggested, should have been deducted from the verdict. On what principle could this have been warranted ? The defendants had expressly promised to pay a definite sum for the work that was performed. They could have no right to the money of Clark, with whom they had no privity, nor appropriate to themselves the benefit of an advancement by a stranger, the object of which, their attachment liad frustrated. Clark has a right to his own money ; and for it the plaintiff is accountable to him. What is entirely conclusive on this head, is, that by holding the defendants to the payment of the precise sum promised by them, they are only subjected to a reasonable law of their own making. I f the contract had been to deliver to the plaintiff a horse, the horse must have been delivered ; and between that promise and this, as to the obligation incurred by non-performance, there is no imaginable difference. In my judgment, the charge, by the court is conformable to law and justice; and I discern no reason for granting a new trial.

Gouid, J.

It is very apparent, I think, that the action is founded, not on the express written contract, but upon a promise, supposed by the pleader, to be implied, from the facts alleged. This appears to me very evident, from th% whole structure of the declaration. The pleader manifestly supposed, that the plaintiff’s being prevented, by the defendants, from fully performing the special agreement, on his part, put an end to that contract$ or, at least, precluded him from recovering upon it. Hence it is, that he superadded the implied promise — which, if it were not intended, as the foundation of the action, there could have been no conceivable reason for inserting. The first promise, then, is laid, only as inducement, or as one of the special facts» from which, it was supposed, the law would raise the second. The court, it is true, is not bound to construe the declaration, in conformity to the views of the pleader : and if the elements of a good count could be found in the declaration, independently of the second promise ; that, as the case stands, might he considered as surplusage. But without that promise, the declaration is incomplete; and to treat it as surplusage, would be to reject the gist of the action. What seems to me to be, alone, decisive of the question, is, that this second promise is not only the last one alleged, in the order of declaring ; but the only one, of which the breach assigned is predicated. Of the first there is no breach laid, in any form. I cannot, therefore, hesitate to consider the second, as the ground of the action. And as this was, confessedly, not an express undertaking ; and as the law certainly could not raise it, in the form in which it is laid, from the facts, previously stated ; the action was, in my opinion, wholly unsuppoited, by the evidence, and the direction to the jury, wrong.

The question made, as to the 148 dollars, wdiich the plaintiff had received, it is not necessary for me, in this view of the case, to consider.

Petebs and Chapman, Js. concurred in the opinion given by the Chief J usticei

New trial not to be granted.


author: Swift, Ch. J. Smith, J. HosmeR, J. Gottid, J.

text:
    Colbourn against Rossiter.
    Hartford,
    June, 1818.
    THIS was an action against tlie defendant, as sheriff of the county of JYew-Haven, lor the escape of Ralph Pearl.

      Pearl had given a note for 200 dollars, payable to the plaintiff, or order ; which the plaintiff sold and delivered to Stephen Walkley, without indorsing it. Shortly afterwards, Walkley, solely for his own benefit, instituted a suit, in the plaintiff’s name, on the note j recovered judgment j took out execution : and caused the body of Pearl to be arrested thereon, and committed to prison. Pearl then issued a citation to Walkley to appear at the gaol, and shew cause why the poor prisoner’s oath should not be administered to him. This citation being served upon Walkley, he appeared, and opposed ttie administration of the oath. The oath was administered ; and Walkley left money with the gaoler for Pearl’s support. While Walkley was the holder of the note, as assignee, Pearl brought his petition to the General Assembly, praying for an act of insolvency. He stated in his petition, that he was indebted to Stephen Walkley, in the sum of 215 dollars ; made him a party to the petition ; and cited liim to appear. Tlie petition was silent as to any debt due to the plaintiff; nor was he named in the citation. Walkley appeared before the General Assembly, and opposed the granting of the petition. After hearing the parties, the General Assembly, at their session in May, 1816, passed a resolve in Pearl's favour, protecting his person from civil process, on account of any debt by him contracted with, or due to, the respondents named in the petition, previous to the date thereof. Pearl complied with the conditions specified in the resolve ; obtained a certificate from tlie trustees ⅝ and immediately afterwards, via. on the 25th of May, 1816, departed from the limits of the prison. This suit is prosecuted by Walkley, in the plaintiff’s name, for his (Walkley* s) sole use and benefit. In connexion with these facts, and to establish part of them, the defendant offered in evidence an exemplification of the record of the General Assembly, and the certificate of the trustees. The plaintiff objected to the admission of this evidence, on the ground that the facts stated, formed no excuse for the escape. The court rejected the evidence $ and the jury found a verdict for the plaintiff. The defendant moved for a new trial. This motion was reserved in the usual manner.

      The assign-ee of a negotiable note, payable to order, by sale and delivery, without in-dorsement, on which,by direction of the assignee, a suit has been brought, and judgment obtained, in the name of the payee, is the creditor of the maker, and is the proper person to be served with notice, on a petition by the maker for an act of insolvency. •

      JV*. Smith, in support of the motion,
    contended, that Walk-ley was the owner of the debt in question ; he alone had a right to discharge it, and controul it; as to that, he alone ivas the creditor of Pearl ; as to that, he alone was affected by the resolve of the Assembly j and he alone was injured, if any one was, by the escape. The evidence offered, then, was proper to shew, that Pearl could be no longer holden for this debt 5 and would, if admitted, have constituted a good defence.

      Staples, contra,
    contended, 1. That the record of the General Assembly was inadmissible, because it was not between the same parties — it was res inter alios acta. The parties to the record were Ralph Pearl and Stephen Walkley ; the parties to this action are Pliny Colbourn and Nathaniel Rossiter.

    2. That as the judgment, and the execution on which Pearl was committed, shewed a debt due to Colbourn, no parol evidence could be received, to prove, that such debt was due to Walkley.

    3. That the evidence adduced, viz. the sale and delivery of a note payable to order, without indorsement — i. e. without the payee’s making any order — was insufficient to shew that the property passed to Walkley.

    4. That if the beneficial interest passed, by the sale and delivery, to Walkley ; still Colbourn has the legal title, and can as well sue for the escape as he could sue on the note.

      Daggett, in reply,
    said, 1. As to the record of the General Assembly not being between the same parties : It is not universally true, that a judgment recovered by A. against B., cannot be given in evidence in a suit brought by J. against C. Where the judgment gives or destroys a right to or against a third person, it may be given in evidence.
    2. Where a judgment is introduced on the ground that it concludes the right in question, parol evidence may be receiv-ejl to shew its bearing.
    S.The delivery of a chose in action, for a valuable consideration, transfers the property. It makes no difference, as to this object, whether a note, on the face of it, be payable to the payee only, orto order or bearer. Jones v. Witter, 13 Mass. Rep. 304,
    4. The case shews, that Colbourn had parted with all his interest.
   Swift, Ch. J.

The note in question was negotiable ; but not having been actually indorsed, it did not vest in ft'alkley, and stands on the footing of a note not negotiable. It is agreed, that such notes may be assigned, by delivery only, so far as they are assignable j and the question is, whether a note thus assigned vests such an interest in the buyer, that in a petition for an act of insolvency, it is sufficient to make the assignee only a party, without averring an assignment, or making the promissee a party.

It is a principle of the common law, that a chose in action can never be transferred from one man to another, so as to enable the purchaser to bring a suit in his own name, except in the case of bills of exchange by the custom of merchants. It is by statute, that notes are made negotiable.

Though a chose in action can never be assigned, so as to transfer the property at law $ yet the purchaser, usually called the assignee, acquires certain rights, which will be protected, both in law and equity. It will not be the subject of a set-off; it will not vest in the assignees«f a bankrupt ; nor is it liable on a foreign attachment. If the assignor should release the debt, or prevent the assignee from pursuing a legal remedy in his name, he would be liable on the contract of assignment. If the debtor, after notice of the assignment, should take a release from a bankrupt assignor, he would be subjected for a fraud on the equitable rigid of the assignee. If any person should steal, or destroy, such assigned note, the assignee has such a special property, by the lawful possession*, that he could maintain a proper action against the wrong-doer for the injury. Though the beneficial interest is vested in the assignee, yet he is always considered and treated in the character of attorney to the assignor, without responsibility ; and every proceeding in law or equity is grounded on the idea that the property is not vested in him at law, but. that he only has the right of an attorney to collect and apply it to his own use. Of course, every proceeding at law directly to enforce the contract, must be in the name of the assignor/ or original party.

But it is said, that the assignee of a note, not negotiable, is, to all intents ami purposes, the owner, except that lie cannot bring an action in his own name. Why not bring an action in his own name, if he is the owner of the note ? It is a solecism to say, that a man is the owner of a thing, and cannot bring an action in his own name. The real reason why he cannot bring an action in his own name, is, because he is not, in any sense, in judgment of law, the owner ; but as he has certain equitable rights, he is considered and treated as the owner for the protection of such rights. Hence, in common speech, he is usually called the owner. He has, however, only the beneficial, not the legal interest. But the admission, that the note cannot be sued in the name of the assignee, and that the suit must be brought in the name of the promissee, concedes all that is claimed ; for on the same principle that the note must he sued in the name of the prom-issee, he ought to be made a party to the petition for an act of insolvency ; for if, in contemplation of law, he is the owner of the note, so that he must be the plaintiff in an action brought on the note, then for the same reason he ought to be made a party to the petition, which seeks to divest him of that legal right. There cannot be a greater inconsistency than to say, that a note must be sued in the name of the promissee, because he is the legal owner, and yet in a petition for an act of insolvency, which seeks to divest him of that right, it is not necessary that he should be a party : for it is a first principle, that no man can be divested of a legal right, by a proceeding at law, to which he is not a party j and it has been ,repeatedly decided, that an act of insolvency passed by the legislature has no effect on the rights of those who are not parties to the application.

From the circumstance that the suit cannot be brought in the name of the assignee, and that the assignment is no bar to a suit in the name of the original party, it is clear, that the assignee cannot he the owner, in judgment of law, but can only be considered as an attorney, with power to collect, without accountability. Indeed, such is the usual form of all transfers of this <h scription. There is no rule of the common law clearer than this, that an attorney can never be treated as a principal. An attorney can never maintain a suit in his own name, in the same manner as if lie were the principal ; nor can process be brought against him, in the same manner ; but the principal must always appear as a party on the record. It can make no difference whether he be an attorney to collect and pay over to the principal, or to apply to his own use ; in either case, he is but an attorney, and the same rules are applicable.

It has been insisted on, in the argument, that Waikely bad power to discharge the note; and this is only a discharge by act of Assembly, to which he was a party. So, any attorney who has a note, merely to collect, can discharge it: but it will not be seriously pretended, that because an attorney can discharge a note, it will be sufficient to make him a party to a petition for an act of insolvency, without giving notice to the, creditor.

If, however, Walkley had such an interest, that it was sufficient to make him a party, then the nature of his interest should have been set forth. When the assignee of a negotiable note brings an action, he states the assignment : so here, on the same principle, Walkley should have been described in the petition as the assignee of Colbourn, so that it might have appeared from the record whose interest was to nave been affected. But now1, from the record of the court that rendered the judgment, Calboum, the plaintiffin fids suit, appears to be the creditor; and his name no w here appears in the proceedings before the General Assembly. It does uot appear from the record, that Walkley ever had any interest in the judgment: but his name appears as a creditor in the petition. From the records, it does not appear, that the debt for which this action is brought, was discharged, by the act of insolvency. ,To give it this operation, an extrinsic fact must be shewn, and proved. But the record ought to speak for itself, and not be eked out by matter dehors; it may lead to serious inconvenience. The sheriff could not know, that this debt, apparently due to Cdhourn, was discharged : he could institute no inquiry to ascertain (lie-assignment to Walkley. If lie permitted the debtor to depart from gaol, and the note had not been assigned, he became liable for an escape: if he refused, and the note had been assigned, be became liable for false imprisonment. No practice should be permitted, that may place an officer iu such a dilemma.

On the whole, it appears to ine, to say, in this case, that notice to the assignee is sufficient, is, in effect, to say, that a chose in action is assignable ; a proposition directly repugnant to' a well known maxim of the common law, as old, and as venerable, as the common law itself,

i would not advise a new trial.

Trumbttii and Peters, Js. were of the same opinion.

Smith, J.

It appears, in this case, that the note had been transferred, for a valuable consideration, by Colbourn to Stephen Walkley, though not indorsed, agreeably to the statute rendering nptes negotiable : that this fact being known to Pearl, he made Walkley a party to his petition for an act of insolvency, as being the creditor, and gave no notice to Colbourn.

It is now insisted, that the act of insolvency obtained on such petition, will not justify the sheriff in releasing Pearl from an imprisonment, procured by Walkley, upon an execution obtained by him in the name of Colbourn, upon the note so transferred. But in my judgment, Walkley was the real creditor, and the only proper person to be made a party to the petition. He being a purchaser.of the note, for a valuable consideration, was the owner of the debt. He alone' could dispose of it; and he onl/ could receive payment. I speak not of chancery, merely ; it is the same at law. There is no hostility between the different jurisdictions on this subject. It is a well settled principle of common law in Connecticut, that the property in a chose in action, may be assigned ; and the courts of law have long since recognized the property in the assignee as fully as courts of chancery.

TJhe last feature, which remained for some time, to distinguish the two jurisdictions, was that of resorting to a court of chancery for redress against an obligor, who had/receivcd a discharge from a bankrupt obligee, knowing the debt to be assigned. But this distinguishing feature is now removed ; and the eoursé is so well settled to bring suits at law, that I feel no hesitation -hrsayiug, that a-«oiu*t of c lymcbry 'would not sustain*a bill of the kind. The old form of Jp'jnging*thg suit on the note, in the name oí ihe obligee, is, indeed, continued j but it is now mere form , and whenever any collateral injury is done to the debt, such as obliterating, destroys ing, or converting the note wrongfully to the use of another; or any injury to'process on the note, such as rosco us, or escape ; the abtion may, and ought to be, brought in the name of the assignee. In the present case, bringing the action in the name of Collourn, is a mere attempt of the party, to avail himself of the forms ef law, regardless of the substance. Walkley was the only person injured by the escape, if any injury was jjone ; and the right of action, if fny, was to him $ and the action ought to fíltve been in his name,

Edmojíd and Braiiíakd, ⅞. were of the same opinion.

HosmeR, J.

The act of insolvency in, favour of Ralph Pearl, as against the parties to his petition, is* conclusive on «very debt to which it extends. ' . .

Walkley was ,a party, and the act explicitly operates on any demand which may'have been due to him at the date of Pearl's petition.

The judgment against Pearl, theifree of wh,ich is now in question, was rendered on a promissory note which.he had given to Colhourn. This note was ncfjfhtrable, and had, by delivery, wftlíout indorsfenttnt, been transfgrred to Walkley, ⅝⅛. least, so far as related to the equitable or heueiicial inter-" *est of it. Jones v. Witter, 13 Mass. Rep. 504. The f^uit in name of Colhourn, was instituted by Walkley ; on the execution which issued, he caused Pearl Jo ⅛⅜ imprisoned ; the money due was his; and he was the only person who could be injured by Pearl's escape. In my judgment, it would be a very limited construction of the act of insolvency, to say, that ft was intended to operate merely on th^ debts nominally due to Walkley. For aught that I have heard, the jmlg-merit debt in the name of Colhourn, was the only demand ^existin.gvin favour of Walkley against Pearl. He answered to the petition of Pearl, to which'-he was made a party ; and opposed it, undoubtedly believing, that if it were granted, it must extinguish the before mentionedNiebt. The words ef the act artfsiffiiciftilly cdTnprclieusU'c tu embrace this subject, . and ti. to claim iu favour of fCalkley^ ^

The only remaining enquiry relates to the efficacy of the act against Pliny Colbourn. Hr was no party to the petition, arid on any real demand of his, it is unquestionable, the act cannot have any operation. Any seeming difficulties arising from this source, however, must vanish, so soon as it is recollected, that Colbourn is merely nominal, the trustee only of Walkley; and that the suit was brought by Walkley in his name, and is pursued for his own benefit. It would bte passing strange, to permit the act to be evaded, and the rights of Pearl prostrated, by a refusal to see what is most obviously visible.

It has been said, that the interest of Walkley is merely an equity; and that the only claim which a court of law can recognize, is in Colbourn. I do not accede to this proposition. The whole beneficial interest is in Walkley ; and of this, a court of law is authorized to take cognizance. « The good sense” says Butter, J. “ of the rule (that a chose in action cannot be assigned) seems to me to be very questionable; and in early, as well as modern times, it has been so explained away, that it remains, at most, only an objection to the form of action.” Master v. Miller, 4 Term Rep. 340. In Bottomley v. Brooke, cited in Winch v. Keeley, 1 Term Rep. 621. which was debt on bond, the defendant pleaded, that the bond was for security of 100Í. lent to the defendant by. E. Chancellor, and was given by her direction in trust for her; and that E. Chancellor was indebted to the defendant in more money. To this plea there was a demurrer, which was withdrawn by the advice of the court. In Rudge v. Birch, cited in I Term Rep. 622. on the same pleadings, there was judgment for the defendant. In Winch v. Keeley, 1 Term Rep. 619, where the obligee had assigned a bond, and afterwards became bankrupt, the court held, that he might maintain the action in his own name for the benefit of his assignee. In these, and other cases that might be cited, (Coleman v. Wolcott, 4 Day 6. Webster v. Scales, 25. G. 3. B. R.) courts of law have taken notice, that the nominal plaintiff was not the party in interest; that he was trustee for another person; and having looked from the record to the beneficial owner, have decided precisely as if he had been a party to the record. Acting on principles of good sense, with a view to the administration of justice, it must be difficult to assign a reason why thccourt should be compelled, by mere forms, to disregard the rights of the only person interested, and sacrifice the substance to the shadow. Had Colbourn obtained an act of insolvency, and given a general assignment to trustees of all his property, it would not have transferred the note before delivered and assigned to Walkley. (Vid. Webster v. Scales, before cited.) A suit in the name of Colbourn might be instituted on the note, for the benefit of Walkley, and against any plea on the part of the defendant, the court would recognize the rights of Walkley, and decide accordingly. (Vid. Winch v. Keeley, before cited.) Now, it seems impossible to assign a reason, why the court should go out of the record to ascertain the property of Walkley, to protect it j and yet, that they should be precluded from the recognition of the same fact, in order to the administration of equal justice to the defendant.

The testimony rejected by the superior court should have been admitted; and therefore, I advise a new trial.

Gottid, J.

The question, whether the resolve of the General Assembly is a good defence to this action, is reducible to two others : 1. Was the beneficial interest in Pearl’s note to the plaintiff, vested, by transfer, in Walkley ? 2. If so, in whom of the two — Walkley, or the plaintiff — would the right to recover for the escape, be, if there had been no such resolve ?

There is now no doubt, that a chose in action, though not negotiable, may be assigned to every purpose, except that of conveying the legal interest in the debt. And the only effect of the exception, under our law, as I have ever understood it, is, that the assignee cannot maintain an action, in his own name, upon the note, or other obligation assigned ; and that the assignor, may, therefore, at law, release the debt, after notice to the debtor, of the assignment. In some of our neighbouring states, and by a rule of practice in England, also, the exception has been narrowed still more. Andrews v. Beecher, 1 Johns. Ca. 411. Wardell v. Eden, 1 Johns. Rep. 531. n. Littlefeld v. Storey, 3 Johns. Rep. 425. Jones v. Witter, 13 Mass. Rep. 304. Legh v. Legh, 1 Bos. & Pull. 447. It is true, that, for a reason not applicable to the present question, a negotiable note, payable to order, cannot be so transferred, as to carry the legal title to the debt, without indorsement : but there can be no question, that the equita- Me, or beneficial, interest, in any chose in ad ion, in genera!, is a subject of assignment; and there is, dearly, no rule of law, requiring an assignment of this kind lobe in writing. It is merely the sale of an interest in a personal chattel ; and no other solemnity is essential to such a sale, than is necessary, in transferring a right to any other personal chattel. If a parol contract of assignment, accompanied with delivery, were not valid j it would follow, that the assignment must be by deed : for the common law makes no distinction between a verbal contract, and a written one, not under seal. But there can be no pretence, that a deed is necessary for this purpose. Indeed, the'point is settled, in Howell v. MacIvers, 4 Term Rep. 690.

Upon the second question, it is to be remarked, that this is an action, claiming a recovery for damage, sustained in consequence of an escape : and it is a first principle, that the person injured by a wrong, is the party entitled to redress. Who, then, is the party injured, in this instance, if any legal injury has been done ? I answer, Walkley, the assignee of the note — the person, who had the whole beneficial interest in it, and in the judgment recovered upon it ; the person who was actually entitled to the avails of the judgment, and must have received the money, due upon it, if it had been collected. The plaintiff has sustained no injury, or loss, of any sort. The only damage occasioned by FearVs enlargement, (and even this, as it here appears, is damnum absque injuria,) has been incurred by Walkley. He, therefore, is the only person, who could recover for this alleged escape, if there were any right of recovery in the case. For the same reasons,he was the party,entitled to notice,on Pearl’s petition to be liberated from imprisonment. The plaintiff was not interested in the event of that petition. He was not the creditor. The debt was due nominally to him, but actually to Walkley. The latter, it is admitted, •could not maintain an action in his own name, directly upon the note or the judgment, because, upon the face of them, the interest does not appear to be his. And for this reason, the assignor is, for the purpose of enforcing a recovery, by an action, founded immediately upon the assigned security, in the nature of a trustee for the assignee — but no further. And, therefore, in collateral actions, like the present, in which this reason does not operate, the rights of the assignee are a proper subject of averment; and courts of law recognize and protect them. The recognition of trusts of this nature, in actions at law, í¡as, in the English courts, long since ceased to be a novelty. 1 Roll. Abr. 29. Mouldsdale v. Birchall, 2 Bla. Rep. 820. Winch v. Keeley, 1 Term Rep. 619. 621, 2. Master v. Miller, 4 Term Rep. 341, 2.

In our own courts, also, the decisions, in all analogous cases, have proceeded upon the principle, that the assignee, is the real creditor, except for the purpose of recovering, in his own name, upon the original security. And it has been so often determined, as to have now become a matter of common experience, that if one, having assigned a debt, and absconded, is sued, by foreign attachment ,• the assignment is a good defence, at law, for the assignee : that an assignor is liable, at law, to his assignee, in an action on the case for fraud, as the case may be, for releasing the debt assigned : and that the promissor, or original debtor, is also answerable, in the same, form of action, for accepting a release, after notice of the assignment, and defending under it. Now, what possible objection, that could be urged against Walkley’s recovering, for this escape, (supposing Pearl's enlargement to have been an escape in law), would not be equally strong against a right of recovery in the two former cases ? No difference in principle can be shown, between the three cases ; for none exists. In all of them, the injury consists in a violation of the same equitable right: in all of them, the objection, which would prevent the assignee from recovering, in his own name, upon the original security, is removed; and in all of them, therefore, if in either, an action at law is a remedy, adapted to the injury. The case of an assignee’s recovering, against the original debtor, for accepting a release, is, indeed, much stronger, in point of precedent, than a recovery, by the same party, in a case like the present, would be. And as to the general doctrine, that an action at law lies, for the violation of an equitable right, the case of Coleman v. Wolcott, determined in this Court, (4 Day, 6.). is still stronger than either.

The objection, on the part of the plaintiff, that the resolve of the legislature, discharging Pearl from imprisonment, is res inter alios acta, is a total misapplication of the rule referred to in support of it. One might as well contend, that in ejectment, an execution title, under a judgment against the former owner of the land, or even a deed of conveyance from him, is not evidence, as being res inter alios acta. The? proceedings of the legislature were not introduced, to prove the truth of any of the allegations in Pearl’s petition. The operative evidence was the decree, or sentence, which is in the nature of a proceeding in rem.

My opinion is, therefore, that the resolve of the legislature is a good defence to the action.

Chapman, J. gave no opinion, not having been preseni when the case was argued.

New trial to he granted.