author: Hinman, J. Waite, C. J.

text:
    The Consociated Presbyterian Society of Green’s Farms vs. Staples and others.
    The practice of courts of chancery in this state, in relation to bills of inter-pleader, differs in some respects, from that of England, and of many of the other United States.
    The plaintiffs brought their hill of interpleader, alleging that there was due from them upon a contract, an unpaid balance, which was severally claimed hy the defendants,—but admitted no definite sum to be so due, and prayed the court to settle the amount of their said indebtedness. The court found the allegations of the bill to be true, authorized the plaintiffs to retain their costs, ordered the defendants to interplead, and afterwards referred the bill and answers to a committee. On the hearing, the plaintiffs admitted that the amount due from them was greater than all the claims established by the defendants, except the claim of F, over which such other claimants were entitled to a priority of payment, and no exception to the bill was taken by any of the defendants, until after the hearing before the committee was closed. Held, 1. That the bill ought not to be dismissed, and such prior claimants put to the expense of further unnecessary litigation, hut that they should be paid from the funds in the hands of the plaintiffs. 2. That F might prosecute his claim against the plaintiffs hy an action at law.

      A contractor for the erection of a meeting-house for an ecclesiastical society, applied for labor and materials to C,' D, and E, who had previously subscribed certain sums towards the cost of said house, and agreed that the society'might pay them therefor, by applying the amount of their subscriptions thereto, and in case the amount so furnished should exceed their subscriptions, such excess should be paid in cash by the society, which cash, and subscriptions cancelled, were to be charged by the society, to such contractor, as payment upon said contract. This agreement was made known to the society, and assented to in their behalf, by their building committee, in the exercise of the powers given them by the society, and relying on the same, 0, Dand E furnished labor and materials accordingly. Held, 1. That such agreement was not void, as to the society, on the ground that the building committee had no power to assent to it, on their behalf. 2. That it was not a promise to pay the debt of another, and therefore, not within the statute of frauds. 3. That it was not void for the want of consideration.
    The provisions of the statute in force in 1852, “ securing to mechanics a lien on land and buildings,” do not extend to a sub-contractor, who has performed services, or furnished materials in the construction of a building, on the credit of the original contractor, without the assent of the proprietor to the sub-contract.
    This was a bill of interpleader, brought by the Consociated Presbyterian Society ,of Green’s Farms, against Staples & Adams, William S. Edgerton, Elnathan Wheeler, Henry B. Lockwood, Charles W. Hall, Daniel Burr, Hezekiah Lockwood, John Goodsell, John S. Hyde, Talcott R. Wakeman, Henry R. Wakeman, and Joseph B. French, who was the assignee of Hawley & Wheeler, praying the court to determine the amount then due from the plaintiffs, on a contract made with said Hawley & Wheeler, for the erection of a meeting-house, and also to order the defendants, severally, to set forth what right they had to the balance due on said contract, so that the plaintiffs might safely pay the same, and stating that they were ready, and willing, to pay said balance, when determined as aforesaid.
    The bill was dated March 22d, 1853.
    The cause first came before the court, at the April term, 1853, when the court found the allegations therein to be true, and ordered and decreed that the plaintiffs should retain, in their hands, the costs and charges of said petition, and that the defendants respectively, should interplead, answer, and set forth their claims to said fund or moneys, in the hand® of the plaintiffs. Thereupon, the defendants, respectively, filed their answers as follows:
    Talcott B. Wakeman alleged in his answer, that, previous to the contrast of said Hawley & Wheeler, in said bill referred to, he subscribed to aid in erecting said church, the sum of two hundred and seventy-five dollars; and said Henry B. Wakeman, the sum of two hundred dollars; that said Hawley & Wheeler, afterward, and while erecting said building, applied to them to furnish labor and materials for the same. Said Hawley & Wheeler agreed with them, that said society might pay them, by applying the sum to whatever balance might be due on said subscriptions, and the balance in cash, and charge the amount to said Hawley & Wheeler, on said contract; that this arrangement was made known to the plaintiffs, and they assented to the same ; that the amount due to them for said labor and materials, on the-— day of-, was $135.
    Elnathan Wheeler alleged in his answer, that, on the 26th day of February, 1853, said Hawley & Wheeler were indebted to him, in the sum of forty-three dollars and sixty-nine cents, for work done in and upon, and materials furnished for the construction of, the church of said society, by said Hawley & Wheeler; that, by force of the statute in such case provided, they were entitled to a lien upon said church, for the security of said sum; that on said 26th of February, 1853, he executed a certificate, pursuant to said statute, setting forth said indebtedness, which certificate was duly executed and recorded.
    William S. Edgerton alleged, in his answer, that he had a claim for materials furnished, and services rendered, for said church edifice, amounting to the sum of $174.51, and in conformity with the provisions of the statute, in such case made and provided, he lodged with the town-clerk of said town of Westport, a certificate of lien thereon, in accordance with the provisions of the statute, for said sum.
    John S. Hyde alleged, that, previous to the contract of said Hawley & Wheeler, in the bill referred to, he and his sister, Eleanor Hyde, subscribed, in aid of the erection of the church, or meeting-house, two hundred and fifty dollars, all of which was paid by them, except the sum of fifty dollars; that said Hawley & Wheeler applied to him to furnish labor and materials for said church, and agreed that said society might pay him for said services and materials, by canceling said subscription, and paying the balance in cash, and charge the same to said Hawley & Wheeler, on their contract for erecting said church ; that said arrangement was made known to said society, and they assented to the same; that, relying upon said arrangement, he did furnish materials and services, amounting on the first day of December, 1852, to one hundred dollars.
    Daniel Burr alleged, that said Hawley & Wheeler, on the —;-day of-, were justly indebted to him in the sum of forty dollars; that, to satisfy said indebtedness, said Hawley & Wheeler then drew an order, in his favor, upon said society, which order was accepted by said society, and thereby said Hawley & Wheeler transferred to him the sum of forty dollars, part of the amount due to them from said society for the erection of said church.
    Horace, Staples and George S. Adams, partners, by the name of Staples & Adams, alleged in their answer, that, previous to the contract of said Hawley & Wheeler, in said bill mentioned, said Horace Staples, on his own account, subscribed the sum of two hundred and fifty dollars, to aid in erecting the church or meeting-house, which was erected for the plaintiffs by said Hawley & Wheeler; that one Samuel Meeker, now deceased, had, in his life time, subscribed the sum of one hundred and fifty dollars for the same object, and that, by his last will and testament, he appointed said Horace Staples executor of his last will and testament, and trustee of all his estate, which will was duly proved and approved; that, when the plaintiffs contracted with said Hawley & Wheeler, to erect said church, it was .mutually agreed between said Hawley & Wheeler, and said Staples & Adams, (said Staples & Adams being merchants, dealing in lumber and other articles,) that said Hawley & Wheeler would procure lumber and other materials for said church, in part, from said Staples & Adams, and that the bill of said Staples & Adams against said Hawley & Wheeler, for said lumber and other articles, should apply in payment, or part payment of said subscription of said Horace Staples, and the balance, if any, in payment, or part payment of said subscription of said Samuel Meeker; that, if the bill should amount to more than enough to pay said subscriptions, said Hawley & Wheeler should give an order on the plaintiffs for said balance, and that the society might pay said balance to said Staples & Adams, and charge the whole amount to said Hawley & Wheeler; that this arrangement was made known to the plaintiffs, and they assented to the same; that the only ground on which these defendants furnished said articles to said Hawley & Wheeler, was the arrangement aforesaid, and that they should not otherwise have allowed said Hawley & Wheeler to contract said debt, and that the amount of the debt due for the articles furnished as aforesaid, was, on the 5th day of June, 1853, $568.66.
    By legal continuances, said cause came before the court, at the April term thereof, in 1854, when a committee was appointed to find the facts.
    The report of said committee, among other facts, stated the following:
    The said Hawley & Wheeler, in said bill mentioned, and the plaintiffs, made a contract for the building of a church or meeting-house, for $4,750; said Hawley & Wheeler built said church or meeting-house, accordingly; the plaintiffs made to said Hawley & Wheeler, according to said contract, the first three payments therein provided for, but did not make to them or to their assignee, said French, the fourth payment therein provided for, and said French, as such assignee, claims of the plaintiff a further sum for extra work done to said church, by said Hawley & Wheeler. It was agreed by the plaintiffs, that there remained due from them, for the construction of said church, including all extra work done thereon, enough to pay the claims of all the other defendants against said Hawley & Wheeler, viz., all the defendants except said assignee, as set forth in said bill The question, whether there is any more due from the plaintiffs in the premises, and if so, how much, was left open and undetermined, inasmuch as no testimony in relation thereto was’laid before the committee.
    After the completion of said church, said Hawley assigned to Wheeler, all his interest in any moneys remaining due from the defendants in the premises, and subsequently, said Wheeler assigned all his interest therein, including thaf so assigned to him by said Hawley, to French, for the benefit of said Wheeler’s creditors, as in said bill alleged; said Hawley and said Wheeler were, at the commencement of this suit, bankrupt.
    On the completion of said church, viz., January 4th, 1853, there was due from said Hawley & Wheeler to said Staples & Adams, $570.67; to said John S. Hyde, at the same time, $100.55; to said Hezekiah Lockwood, at the same time, $29.94; at the same time, to said Charles W. Hall, $34; to said John Goodsell, $10.87; (the last item of his said claim having accrued on the 10th day of January, A. D. 1853;) to said Edgerton, $68; to said Daniel Burr, $40,30; to said Talcott B. Wakeman and Henry B. Wakeman, $136.70; and to said Elnathan Wheeler, $43.69; the last item of his said claim having accrued to him on the 29th day of December, 1852, which said sums were, due to said several persons for the causes and considerations, set forth by them respectively, in their respective answers. It was agreed, by the parties, that said Burr and said Hull were entitled to payment of said sums, by them respectively claimed, out of the moneys so due from the plaintiffs.

      Said contract, between said Hawley & Wheeler and the plaintiffs, was made, in behalf of the latter, by a building committee, consisting of several persons appointed by them, of which committee the regular society’s committee of the plaintiffs constituted a part, and all that was done by, or on behalf of, the plaintiffs, in respect to said church, its construction, or the payments made by them to said Hawley & Wheeler, was done by said building committee, and in the exercise of the powers given them by the plaintiffs.
    The committee found the allegations in the answer of Staples & Adams, as to the subscriptions of $250, and $150, to be true, and that it was verbally agreed between them and said Hawley &.Wheeler, as therein alleged, in regard to the payment of such claims as should accrue to said Staples & Adams. Said agreement was, long before the completion of said church, made known by both said Staples & Adams, and said Hawley & Wheeler, to said building committee, and verbally assented to by them. And on the 5th day of March, 1853, said Staples & Adams lodged in the office of said town-clerk of Westport, for record therein, a certificate of lien.
    It was found that the allegations in the answer of said T. B. and H. B. Wakeman, in relation to said subscriptions therein mentioned, were true, and that said H. B. Wake-man paid in the whole of his subscription, and said T. B. Wakeman all of his, except $65, which still remained unpaid ; that, after their said claim accrued to them, and long before the completion of said church, it was verbally agreed by and between said Wakemans and said Hawley & Wheeler, as in said answer alleged, in regard to the payment .of said claim, and that this agreement was, by the parties thereto, made known to said building committee, and verbally assented to by them.
    Said Elnathan Wheeler, on the 26th day of February, 1853, lodged with the town-clerk of said Westport, for record, a certificate of lien, as alleged in his answer, and said Edgerton, on the 31st day of January, 1853, lodged at the office of said town-clerk of Westport, for record, a certificate of lien, as alleged in his answer. The allegations of said John S. Hyde’s answer, as to the subscription therein mentioned, were found to be true.
    After the claims of said Hezekiah Lockwood and said Goodsell had accrued to them, and long before the completion of said church, it was verbally agreed by and between them, respectively, and said Hawley & Wheeler, that their said claims should be paid and satisfied by the plaintiffs, out of the moneys which should be due to said Hawley & Wheeler, from the plaintiffs, which agreement was made known to said building committee, and verbally assented to by them.
    Said Hawley & Wheeler and said claimants, viz., Staples & Adams, T. B. and H. Wakeman, Lockwood, Hyde, and Goodsell, by their said agreements, did intend, and did, so far as the same could be done by said agreement, appropriate for the use of said claimants, so much of the moneys in the hands of the plaintiffs, which should become due to said Hawley & Wheeler, from the plaintiffs, as should be necessary therefor in payment of their said claims.
    Said several agreements were communicated to the society, by a member of said building committee, who reported to said society the amounts payable according thereto, as being paid; said building committee, in assenting to said agreements, and in retaining moneys which had become due from the plaintiffs, for payment accordingly, and in all they did in the premises, acting on behalf of the plaintiffs. There was no evidence of any vote of the plaintiffs, in society meeting, nor of any distinct act in relation to said agreement, or said retention of moneys; but their attorney and counsel on the trial, in behalf of said society, expressed their assent to said agreement, as having been given in conformity with, said assent of said building committee, and recognized said retention of said moneys, by said committee, as the retention of the same by said society, for the purposes aforesaid. And the committee found that said society did, as a society, assent, and retain as aforesaid, and submitted to the court the question, whether said facts authorized said finding.
    The question, as to what decree should be passed in the case, was reserved for the advice of this court.

      Butler 8f Garter, and Ives, for the plaintiff.

      Loomis 8f Warner, and Beardsley 8f Seeley, for French.

      Dutton, for Staples & Adams, and the other defendants.
   Hinman, J.

The bill alleges that the plaintiffs contracted, in writing, with Hawley & Wheeler, to build for them a church edifice, to be completed on, or before, the 15th day of October, 1852, for which they were to pay the builders the sum of $4,750 in instalments, the last of which, being $1,250, was to be paid when the house was completed ; that Hawley & Wheeler went on to perform labor, and furnished materials, though not to the complete fulfilment of the contract ; that the plaintiffs paid all the instalments except the last, and Hawley & Wheeler claimed that they had performed extra work on said building, to the amount of about thirty dollars, which has not been paid, and is not admitted to be due to the full extent of the claim; that several persons, by divers distinct titles, claim the whole amount due from the plaintiffs, viz., Staples & Adams’ claim, $570.67; William S. Edgerton, $68; Elnathan Wheeler, $43.69; Henry B. Lockwood, $35.11; Charles W. Hall, $34; Daniel Burr, $40; Hezekiah Lockwood, $29.94; John S. Hyde, $100.55; John Goodsell, $10.87; T. B. and H. Wakeman, $136.77; and that Joseph B. French, as assignee of said Hawley & Wheeler, claim the whole of said instalment, together with the amount due for said extra work, and to recover the same, he has an action at law, now pending, against the plaintiffs. It is there stated that the plaintiffs are willing to pay whatever sum they are justly owing on said contract, to such persons as the court shall direct, but that the several persons, claiming the above balances, threaten to bring actions against them for the recovery thereof. The plaintiffs thereupon pray, that the balance due from them be settled and adjusted by the court, and that the defendants set forth, and discover, what right they, each of them, have to the balance claimed by each respectively, and that they interplead and settle their demands among themselves; the plaintiffs offering to pay the balance so found due from them on said contract, and to bring the same into court for that purpose.

The court found the allegations in the bill true, and ordered that the plaintiffs be allowed to retain in their hands the costs of the bill, and that the defendants, respectively, interplead, and set forth, their claims to the money. This being done, a committee was appointed, at a subsequent term of the court, to find and report the facts in the case, and on the coming in of the report, the case was reserved for the advice of this court.

On the trial before the committee, the plaintiffs admitted that enough was due from them to pay all the claims, except that made by French, the general assignee, and whether any more was due, was left open, and undetermined by the committee, no evidence being taken, or heard, in reference thereto.

The bill has thus far been treated as a mere bill of inter-pleader, but by the English practice, which prevails also in many of the United States, it could not be sustained as such, because it does not admit any definite sum to be due from the plaintiffs, but calls upon the court, for relief, in first settling for them, the amount of their indebtedness for the building of the church. Sto. Eq. Pl., p. 16, § 18, and p. 345, § 297.

It seems to have been irregular, therefore, for the parties to cause the court to find the ‘allegations in the bill true, and authorize the plaintiffs to retain their costs, and then, before it appeared in any way, what sum was due, or, indeed, that anything was due, except; perhaps, by inference, to order the defendants to interplead. “ It is,” says Judge Story, “ the very foundation of a bill of this sort, that the plaintiff is a mere holder of the stake, which is equally contested by the defendants, and that he is wholly indifferent between them.” And it is upon this ground, that the plaintiff is ordinarily authorized to retain the costs of the application. If he has any other object to accomplish than barely to learn who is entitled to the money, which he has in his hands, there seems to be no propriety in his retaining a portion of the fund to pay his costs, until it is determined whether he is entitled to the relief which he seeks; and even then, the court might think him not entitled to his costs, though it might grant the relief asked for; and if the bill may properly be treated as a bill, in the nature of a bill of interpleader, it would seem to have been proper for the court to ascertain the amount of the plaintiffs’ indebtedness, before it ordered the parties to interplead; or, at least, to have appointed the committee to find the amount of it, as well as the facts in respect to the answers of the defendants. But none of the defendants, at the proper stage of the cause, saw fit to demur, or take any exception to the bill as originally framed ; and although it is said that the court may, in any stage of a case, dismiss a bill for similar irregularities, we do not understand it to be claimed that it is bound to do so, and it appears to us better, upon the whole to dispose of the case, upon the facts found in the report of the committee, applicable to all the defendants, except the general assignee of Hawley & Wheeler, leaving him to prosecute his action at law, for such balance of the indebtedness, as may be due, after paying such of the other defendants as.are entitled to a portion of the fund. We do not see that any injustice can be done by this course. The plaintiffs admitted there was enough due from them to pay, to all these defendants, the several amounts of their respective claims; and as we are of opinion that some of them are not entitled to their claims, it follows, that something must be left for the general assignee, which he will recover in his action at law, and this will leave him in the same condition, as to costs, that he would be in, if the bill was dismissed. We do this the more readily, under the peculiar circumstances of the case, in which the parties are numerous, the litigation expensive in reference to the small sums claimed by several of them, and all parties, except the general assignee, are anxious to have their rights to the fund settled; and the assignee, at this late stage of the proceedings, ought not to be heard to complain, when he had it in his power to stop the proceedings at the commencement, if the suggestions, which he now makes, are well founded. Besides, our chancery practice is, in many respects, variant from that which prevails in England, and in many of the states of this Union, and how far it is proper for us to go in adopting the English practice, it does not seem necessary for us now to determine. When no exception is taken to a bill of interpleader, before the hearing is closed, on account of its asking for relief, other than that upon which such bills are founded, it seems inequitable that the parties should be put to the expense of further unnecessary litigation. And in the case of Nash v. Smith, 6 Conn. R., 421, this court departed entirely from the well settled English practice of requiring an affidavit of the absence of fraud and collusion, to accompany the bringing of such bills, and permitted the plaintiff to proceed, although there was no offer to bring the money into court, and it had, in fact, been paid over to one of the claimants. Indeed, it has always been the course of our courts to simplify our practice, in regard to matters of form, as far as it was deemed safe to do so without endangering the administration of substantial justice; and whether it may not be safe, and conduce to the ends of justice, to extend somewhat, the remedy, by bills of interpleader, and do away with the distinction between them and bills, which are called bills in the nature of bills of interpleader, it may be proper for the court hereafter to determine.

Coming then, to the disputed claims of the defendants to the fund in the?plaintiffs’ hands, it appears that, with the exception of the claim made by the general assignee, they are of two classes. First, are all the claims except those of Edgerton and Elnathan Wheeler; and secondly, the claims of these two persons. Besides these, there are the claims of Daniel Burr and Charles W. Hull, in reference to which nothing need be said, as the parties all admit that their claims are just, and entitled to payment, out of the moneys in the plaintiffs’ hands.

In reference to the claims of the first class, it appears that, previously to the contract of the society with Hawley & Wheeler, these claimants all stood in the relation of subscribers, who had each subscribed certain sums in aid of the erection of said church edifice; that Hawley & Wheeler, in the progress of their work on the church, having occasion for labor and materials to be furnished them, applied therefor to each of these persons, and, to induce them to furnish them, they agreed with them, that the society might pay them for such materials and labor as they respectively furnished, to the extent of each one’s account therefor, by- applying the same on their several subscriptions, and thus, to the extent of labor and materials furnished by each, cancelling his subscription, and if there was still a balance due him, it was to be paid him in cash by the society, and the amount thus paid, together with the amount of subscription cancelled, was to be charged by the society to Hawley & Wheeler, as payment on their contract for building the church. This arrangement was made known to the society, before the church was completed, and in every instance assented to; and relying on arrangements of this sort, these claimants did furnish labor and materials, to the several amounts found by the committee, which have never been paid for, and as Hawley & Wheeler have become bankrupt, must be lost to the claimants, unless the contemplated application can be made. In view of the imposing equity presented by the statement of these claims, we have looked with some solicitude for an answer to them.

First, it is said that the building committee, through whom the arrangements were made, had no power to assent to them on the part of the society.

We do not think it necessary to determine the precise powers of a building committee, in the strict sense of the phrase. This committee was composed of the ordinary society’s committee, with others joined with them, and it appears that they all acted together in making the contracts, and in all that has been done in behalf of the society, in respect to said church edifice; and, as the report says, in the exercise of the powers given them by the society, and the society, through their counsel, on the hearing, expressed their assent to all that had been done, and so far as we know or believe, they continued to recognize their acts as properly done, up to the present time. Under these circumstances, we can not doubt their powers, both in respect to the original .contract, and all the other incidental arrangements made with the claimants.

Next, it is claimed that the promise of the society to pay the claimants, was a promise to pay the debt of another, and therefore void within the statute of frauds; and, if otherwise, it was made without consideration, and therefore void on that ground. But this was not a promise to pay the debt of another. It was a promise, by the society, to pay their own debt to Hawley & Wheeler, or a portion of it, to the several claimants, and it was made in consideration of the extinguishment of the claimants’ demands against Hawley & Wheeler. The agreement between Hawley & Wheeler and the claimants, assented to by the society, operated to extinguish the claimants’ demands against Hawley & Wheeler, and as an assignment of them to the society, which, in some of the cases, is said to be the only exception to the rule, that a chose in action is not assignable at law. Butler, J., in Tatlock v. Harris, 3 T. R., 174. Ld. Tenterden, C. J., in Fairlie v. Denton, &c., 15 E. C. L. R., 246. Hodgson v. Anderson, 10 E. C. L. R., 247.

The second class of claims, consisting of the claims of Edgerton and Elnathan Wheeler, stand upon different ground. These persons furnished materials, and rendered service in the construction of said church, each to an amount exceeding twenty-five dollars, at the request, and on the credit of Hawley & Wheeler, and within sixty days after they had ceased furnishing said materials, and performing such service, they each lodged with the town-clerk, a certificate, duly executed according to the provisions of the statute, each claiming a lien on the church, and the ground on which it stands, to the extent of their respective debts, and the question is, whether they are entitled to such lien,—or, in other words, whether a sub-contractor, who performs services, or furnishes materials in the construction, or repair of a building, on the credit and at the request of the contractor, without the assent of the proprietor, either in writing or otherwise, can maintain a lien upon the premises under our statutes, as they were when these debts were contracted? A majority of the court are of opinion that such a lien can not be maintained. The liens are claimed under the statute of 1852, which provides, that “every dwelling-house or other building, for the construction, or erection of which, any person shall have a claim for materials furnished or services rendered, exceeding the sum of twenty-five dollars, shall, with the land on which the same may stand, be subject to the payment of what may be due from the proprietor, and the same shall be a lien on such land and building, and shall take precedence,” &c. Stat. ed. of 1854, p. 644. This language is, we are aware, very comprehensive, and literally read, is perhaps sufficient to embrace the claims of sub-contractors. But it should have a reasonable construction, and, read in connection with other statutes which it does not appear to have been intended to repeal, it seems to us that it was not intended to embrace them. There is no privity between a sub-contractor and the proprietor, and no liability, on his part, to pay the contractor’s debts, unless it is created by this statute. We have no occasion to doubt the competency of the legislature, even by an arbitrary expression of its will, to create a lien to the extent of the indebtedness of the proprietor to the first contractor, and to transfer it, by a sort of legislative assignment, together with the indebtedness, to the sub-contractor, for his security; still, when anything of this sort is claimed to have been done, the provision is so unusual, and contrary to what we are accustomed to consider a more reasonable course of legislation,- that courts will examiner! with care, before they give it such effect, and will require clear and unequivocal language in a statute, to authorize them so to construe it. This statute gives a lien for what may be due to any person from the proprietor. But unless it was the object of the statute to transfer the contract- or’s debt to the sub-contractor, there is nothing due from the proprietor to the sub-contractor, and, of course, nothing on which to predicate a lien.

We, however, place more reliance upon the fact that, at the time the act of 1852 was passed, there was a statute in existence, in relation to this very subject of sub-contractor’s liens, providing, in express terms, that where they have claims to the amount of fifty dollars, or more, and their subcontracts are in writing, and assented to by the other party, they shall be entitled to a lien on the house or building constructed or repaired. Stat. 642, ed. 1854. It appears to us, that a statute, like this, which seems to have been carefully drawn and provides for a priority, by contract in writing between the sub-contractor and the proprietor, could not have been intentionally repealed in the indirect mode claimed, with no mention or notice taken of it in the act under consideration.

The object of the act of 1852 seems to have been to reduce the amount of indebtedness for which a lien may be claimed. Perhaps, also, it was thought that there might be a class of persons, not coming within the strict designation of sub-contractors, who might perform labor, or furnish materials, under circumstances justly entitling them to the benefits of a lien, to whom it was intended to extend the benefits of the statute.

On the whole case, then, we advise the superior court to allow, and cause to be paid, out of the moneys in the plaintiffs’ hands, the debts of all the defendants except Edgerton and Elnathan "Wheeler, whose claims we advise the court to disallow and dismiss; and in respect to the.claim of Joseph B. French, described in the report of the committee, as the assignee of Hawley & Wheeler, that he be at liberty to prosecute the action in his favor, against the plaintiffs, to final judgment, deducting from the amount, which he might otherwise be entitled to recover, the several sums as aforesaid to be paid to the defendants.

In this opinion the other judges concurred, except Waite, C. J., who dissented.

Waite, C. J.

I concur in the opinion expressed, except so far as the claims of Elnathan Wheeler and William S. Edgerton are concerned. As to them, I am clearly of opinion that, under the statute of 1852, they are entitled to their liens.

That act provides that “every dwelling-house, or other building, for the construction, erection, or repairs of which, any person shall have a claim for materials furnished, or services rendered, exceeding the sum of twenty-five dollars, shall, with the land, on which the same may stand, be subject to the payment of what may be due from the proprietor, and the same shall be a lien on such land and building.”

Nothing can be more clear, explicit, and comprehensive than the language here used. The only qualifications are, that the claim must exceed twenty-five dollars, and can only be charged upon what may be due from the proprietor. Nothing more is required than to take the proper measures, prescribed in the statute, to perfect the lien. And it is admitted, that has been done in the present case.

It is found, by the committee, that these two defendants-furnished materials, and performed labor in building the plaintiffs’ meeting-house; that the claim of each exceeds the sum of twenty-five dollars; and that there is still enough due from the plaintiffs to the contractors, by whom they were employed, to satisfy their claims. Why, then, are they not entitled to satisfaction ? Their case comes within the plain and express provisions of the statute.

It has been said that it must be construed in connection with the preceding statutes, and be limited, in its operation, to the claims of those who have been employed by the proprietors of the building. But this limitation, in my judgment, is neither warranted by the language of the statute, nor was it in the contemplation of the legislature.

The title of the act describes it, as being in addition to ” the first statute, passed upon this subject, but in the body of the act, there is not one word showing any connection with any previous statute.

The law, securing to mechanics a lien upon buildings, has been gradually extended, as its beneficial operation became manifest.

The first statute, passed in 1831, was designed merely to secure the contractor against the failure of the owner of the building. It gave Mm a lien, when the amount, due him upon his contract, exceeded the sum of two hundred dollars. The act of 1839, extended the right to a sub-contractor, having a claim to the amount of fifty dollars. The act of 1852 gave a lien to any person, who had furnished materials, or performed labor, to the amount of twenty-five dollars, and charged it only upon the sum remaining due from the proprietor of the building.

Finally, the general assembly, at its last session, repealed all these statutes, and passed a new one, almost in the very words of the act of 1852, with some additional provisions for the further benefit of the laboring mechanic. The lien is given, not only for work done upon a building, but upon any of its appurtenances, and subjects the owner to the payment of the claim, whether he is, or is not, indebted upon his contract, for the building or the repairs,—thus giving more adequate security to the laboring man, than was provided in the former statutes.

It is further said, that the construction, here given to the act of 1852, imposes onerous duties upon the owners of buildings, requiring them to see that workmen and material men are all paid. But those duties are less onerous than those imposed by the act of the last legislature. The former merely requires them to see to the application of the payments, which they have agreed to make. The latter statute requires them to pay the liens, whether they are, or are not, indebted to any one for the amount.

It is better, far better, that they should be required to see that the claims of such men are satisfied, than that they should be defrauded by irresponsible builders. If men choose to employ such builders to erect, or repair their buildings, let them take proper security, or so regulate their payments that the workmen, and material men, shall not lose their labor, and their property, by the insolvency of the builder, and their families suffer in consequence.

The law, upon this subject, is a very wholesome and beneficial one, and well calculated to guard the interests of a' class of men, who have formerly been, in many cases, great sufferers, and are peculiarly entitled to legislative protection. It should receive a fair and liberal construction, and if it should be holden that the statute, now in force, is insufficient for that purpose, from the disposition hitherto manifested by the legislature, I have no doubt that it will soon be made fully adequate for such purpose.

And it seems to me that there is no Christian community, that would not rather take all the measures necessary to protect the interests of the laborers on their church, than worship in one, built by persons, who have been defrauded of their labor and property by bankrupt builders, employed, by that community.

For these reasons, I am of opinion that Wheeler and Edgerton have valid liens upon the plaintiffs’ meeting-house, for the work they have done upon it, and the materials they have furnished, and are entitled to payment from the amount still due from the plaintiffs to the insolvent builders.

Decree accordingly.


source: Caselaw Access Project

author: Waite, C. J.

license: Public Domain

text:
    Fitch vs. Baker.
    The plaintiff erected, for the defendant, upon a lot of land, a dwelling-house under a written contract, and also other buildings under a parol contract, and . afterward duly filed with the town-clerk his certificate of lien upon said buildings and land, describing the several amounts due on said contracts, and, in a bill for a foreclosure of the defendant’s interest in the whole property, alleged that the fee of the land was in the wife of the defendant, the latter having a life interest therein, which bill the defendant answered by a general denial. Held, 1. That both claims were properly embraced in. the same certificate and the same suit. 2. That the question, whether the land was, or was not purchased with the earnings of the wife during coverture, and after the passing of the act of 1S50, securing to married women real estate acquired by their personal services and conveyed to them during coverture, was not put in issue by the parties. 3. That the plaintiff was entitled to a foreclosure of the defendant’s life estate in the whole property.
    This was a bill in- equity, alleging that the plaintiff had a mechanic’s lien, for the erection of a dwelling-house, barn, and privy, upon a certain lot of land, the fee of which was in the wife of the defendant, he having only a life interest therein; and praying for a foreclosure. The answer simply denied the truth of the matters averred in the bill.
    The case was referred to a committee, whose report embraced the following facts. The defendant erected upon the lot of land, a dwelling-house, and furnished the materials, under a written contract with the defendant,—and also erected other buildings upon the same land, under a parol contract, and, within sixty days after the buildings were completed, he filed his certificate of lien, to secure the amount claimed to be due him. The title of the land was in the defendant’s wife, the same having been purchased, and paid for, by money earned by her personal services, and the balance due the plaintiff for building the house, was $220, and for the other buildings, $115, making together, $335.
    The material parts of the certificate, lodged with the town clerk, are the following:
    “ Be it known, that I, John Baker, of Norwalk, for the consideration of materials furnished, 'and labor expended, do hold and claim a lien upon the buildings and premises, hereinafter described, under and by virtue of a statute law of this state, entitled “ An Act securing to Mechanics a Lien on Land and Buildings,” and the acts in addition thereto, for the sum of $472.50, to wit, the sum of $344.25 for labor, and materials, expended on the dwelling-house, under a written contract, and the sum of $128.25 for labor and materials for the other buildings, under a verbal contract. The contracts were both made with Walter J. Fitch, with the knowledge, assent, and request of Huldah Fitch, his wife, who has the fee of the land, on which the buildings are situated. My claim for work and materials on the house commenced on the 10th day of August, 1853; on the other buildings, on the 3d day of November, 1853, and I ceased laboring on all the buildings, on the 8th day of February, 1854. The premises are situated in Norwalk, contain about five acres, with the dwelling-house, and other buildings thereon standing, bounded, &c.

      In witness whereof, I have hereunto set my hand and seal, this first day of March, 1854. John Baker, [l.s.] ”
    To which was annexed his affidavit.
    The defendant remonstrated against the acceptance of the report, upon the ground that the committee admitted in evidence the certificate, although objected to by him.
    The superior court for Fairfield county, at the April term, 1855, adjudged the reason assigned in the remonstrance insufficient, accepted the report of the committee, and found the facts therein stated to be true, except in relation to so much of the report, as regards the payment for the land, by •the wife, with moneys acquired by her personal services, in relation to which, the court made no finding, inasmuch as it did not appear that such money was earned, during coverture, and that fact was not within the issue raised by the defendant’s answer. The court did not intend to conclude the parties respecting it, and thereupon decreed a foreclosure against Walter J. Fitch, the defendant, and dismissed the bill, as against his wife.
    The defendant, thereupon, filed a motion in error, and brought the case before this court, claiming that the court below erred in adjudging the remonstrance insufficient, and in making a decree in favor of the plaintiff.

      Ferry in support of the motion.
    1. The certificate was inadmissible, because it is a void instrument, for the following reasons. It recites two contracts, one verbal, the other written, having relation to different subjects, and distinct localities, viz., the one to the dwelling-house, and the other to the barn and privy; instead of the operations of the lien acquired under each of the contracts within its own proper locality, the certificate attempts to spread the lien acquired, under each contract, over the whole property affected by both.

      2. The bill and report, together, show no equitable cause of action against the defendant. The bill describes the defendant, as having only a life-interest in the premises. There is no positive averment that he has any interest whatever. The answer denies even this qualified statement of an interest. The report finds “ that the title of said land was in the wife of the defendant, the same having been purchased, and paid for, with money earned by her personal services.” The defendant therefore had no interest whatever in the property. Stat., 1854, p. 377.
    The decree finds an indebtedness by the defendant, but declines to find whether he has, or has not, any interest in the land, and then proceeds to foreclose him, by a decree subjecting him to the payment of costs.
    3. No lien can be acquired, on the life-interest of the husband, in the real estate of the wife.

      Butler Sf Carter, and Wilson, contra.
    1. The committee did not err in admitting the certificate of lien in evidence, and it is, in form, a compliance with the statute. It claims a lien on the buildings and premises, setting out the facts correctly.
    2. The bill shows an equitable cause of action, against the defendant. It avers a debt due, for work done and materials furnished, in the erection of a dwelling-house, by the plaintiff, upon land in which the defendant has an interest, and claims a lien under the statute, averring the continuance of the lien, by filing a certificate, in compliance with the statute. This discloses an equitable right to foreclose the defendant’s interest.
    3. The averment that the plaintiff had no adequate remedy at law, was not necessary. Botsford v. Beers, 11 Conn. R., 369.
   Waite, C. J.

It is claimed that the certificate of lien, filed in the town-clerk’s office, is void, because it recites two contracts, one in writing, and the other verbal, having relation to different subject matters, the erection of separate buildings, in separate localities.

This claim, we think not well founded. The certificate relates to liens, claimed upon one and the same lot of land, with the buildings thereon, and sets out the manner in which the liens originated, perhaps with more particularity, than was necessary. But the fact that they grew out of separate contracts can have no effect upon its validity, so long as both claims are upon the same property.

In this respect, the incumbrance is like two distinct and independent mortgages upon the same estate. In such case, it is almost the universal practice to bring but one suit for a foreclosure, and ask for a decree, upon the non-payment of both mortgages. To hold that, in such case, two suits would be necessary, would be oppressive upon the debtor,—subjecting him to unnecessary costs. Mix v. Hotchkiss, 14 Conn. R., 32.

Did it appear that the liens, created under these two contracts, were upon two distinct pieces of property, and that the lien created under the one contract, was upon property, separate and distinct from the property upon which the other lien arose, the case would be different. It would be like two separate mortgages, to secure separate debts, each covering a separate tract of land.

But the bill, in the present case, prays for a foreclosure of all the defendant’s interest in the whole property, and the decree is so made, and there is nothing shown, by which we can see that separate decrees could be made, or that one portion ought to be forfeited upon the non-payment of one claim, and another for the non-payment of the other.

Both claims, in our opinion, were properly embraced in the same certificate, and in the same suit.

2. In the next place, it is said, that it is neither averred in the bill, nor found by the court, that the defendant had any interest in the land and buildings upon which the liens are claimed.

The allegation in the bill is, that the buildings were erected upon a certain lot of land, the fee of which was in the wife of the defendant, he having only a life interest therein; and it is found by the committee and the court, that the title of the land was in the wife. Aside from the act of 1850, this would give him, at least, an estate for their joint lives; an estate, which he could convey, or mortgage, and which could be taken on execution. And, if he had any interest whatever in the property, it would justify a decree of foreclosure against him. Williams v. Robinson, 16 Conn. R., 522. Wooden v. Haviland, 18 Conn. R., 107.

But the defendant relies upon the act of 1850, which provides “ that all real estate, conveyed to a married woman, during coverture, in consideration of money, or other property, acquired by her personal services, during such coverture, shall be held to her sole and separate use.”

It has been holden that this statute is not retrospective in its operation. Plumb v. Sawyer, 21 Conn. R., 351. It creates an exception to the general rule, that the husband has a life estate in all lands owned by his wife in fee.

Hence, in order to bring the case within the provisions of that act, it is incumbent upon the defendant to shew, that the land was not only purchased with money earned by the wife, but that the purchase was made during the coverture, and subsequent to the passage of the act, which is a recent one.

But the defendant has set up no such claim, either in his answer, or his remonstrance, and by a recent rule, the court, in a suit in chancery, will not find any facts, not put in issue by the parties. Rules of Practice, chap. 20, § 3. 18 Conn. R., 378.

Under that rule, therefore, the superior court was perfectly justified in refusing to go into an enquiry, respecting a matter not put in issue, by the pleadings. The finding of the court is in perfect accordance with the allegation in the bill, that the fee of the land was in the wife,—and a general denial of the allegations in the bill did not render it necessary for the plaintiff to go farther.

3. It is finally said, that no lien can be acquired upon the life estate of the husband. But we see no foundation for this claim. Had the defendant given to the plaintiff a mortgage of all his interest in the property, such mortgage would unquestionably be good, and a bill for a foreclosure might be sustained upon it.

A mechanic’s lien, in many respects, resembles a mortgage. Neither will affect the rights of the wife, unless she so co-operates with her husband as to bind her estate. But so far as the interest of the husband extends, it will be as much bound, in the one case, as in the other. In the present case, the interest of the wife remains unaffected by the decree, the bill as against her having been dismissed.

"We are therefore of opinion that there is no error in the doings of the superior court.

In this opinion the other judges concurred, except Hinrian, J., who was disqualified.

Decree affirmed.


author: Ellsworth, J.

text:
    Daly vs. McDonald.
    In an action for a breach of a promise of marriage, the plaintiff introduced evidence of the manner in which the acquaintance, between her and the . defendant, commenced. To repel such evidence, the defendant offered to show that he supposed his visits to the plaintiff were first made, in consequence of her invitation to him, communicated through a mutual friend. Held, that such evidence was admissible.
    Held, also, that if the defendant acted under the belief that the plaintiff had made such request, his misapprehension of the fact, was immaterial.
    This was an action for a breach of promise to marry the plaintiff.
    The cause was tried at the term of the superior court, for the county of Fairfield, holden in February, 1855.
    On the trial it was proved, that the plaintiff was a servant girl, and the defendant a laboring man in a manufacturing establishment. To show the commencement of the intercourse, which terminated in the promise stated in the declaration, the plaintiff testified, among other things, that one Daniel Duffy came to her, on behalf of the defendant, and requested her to permit the defendant to visit her, to which she gave her consent, and thereupon the defendant commenced visiting her, and continued his visits, until after the alleged promises were made. She further testified, that she never authorized Duffy to request the defendant to visit her.
    To rebut any inference that might be drawn from this testimony, and to show that the acquaintance was first sought by her, the defendant offered himself as a witness, and testified, that he never sent Duffy with any such message to her, nor knew that such was ever delivered, but, on the contrary, before the commencement of any acquaintance between them, Duffy came to him, and told him that the plaintiff was desirous of becoming acquainted with him, and had requested him to ask the defendant to call and see her, at her place of residence.
    To the admission in evidence of what Duffy told the defendant, the plaintiff objected, upon the ground that there was no evidence that she ever authorized Duffy to make any such communication, or to act as her agent; and the court sustained the objection, for the reasons assigned, and excluded that part of the defendant’s testimony.
    The plaintiff was the only witness who testified to an express promise of marriage. The defendant denied having made such promise, and called a Mrs. Guidan, who testified to a conversation which she had had with the plaintiff, in which the plaintiff had said that no such promise had ever been made, and that she could never obtain one from him. The plaintiff denied ever having any such conversation with the witness.
    Much other testimony was introduced, tending to prove an intimacy between the parties, both before and subsequent to the time of the alleged promise; but a recital of the'same is unnecessary in the present case.
    The jury having rendered a verdict in favor of the plaintiff, the defendant moved for a new trial, on the ground that the court rejected the evidence objected to by the plaintiff, and also on the ground that thé court did not instruct the jury in pursuance of his claim.

      Dutton, and Butler Sf Carter, in support of the motion.
    1. The evidence of the declaration of Duffy to the defendant tended to show the object of the defendant, in visiting the plaintiff. It constituted part of the main question.
    Promises of marriage may be inferred from intimacy, and such conduct as evinces an intention to marry, and the information, which the party has received, whether true or false, throws light upon the subject of what his intentions were.
    2. The plaintiff introduced the declaration of Duffy, accompanied with proof that the defendant did, thereupon, visit the plaintiff. This was prima facie■ proof, that Duffy was agent for the defendant.

      The defendant had a right to show, that he was not his agent, and also to show what conversation passed between him and Duffy.
    3. As long as the plaintiff’s claim, that Duffy was agent of the defendant, was persisted in, the defendant had a right to rebut it.
    4. The court permitted the declarations of Duffy to the plaintiff to go to the jury. Until this permission was withdrawn, the court ought to have permitted evidence of the same description, on the part of the defendant.
    Hawley, contra.
    1. The testimony was properly rejected. The defendant’s testimony, denying that he sent Duffy, or knew what he said to the plaintiff, was not objected to, but heard; nothing was objected to, but what Duffy, not an agent of the plaintiff nor authorized by her, had told the defendant. Such testimony, aside from any other objection, did not tend to repel any inference, arising from the plaintiff’s testimony, but was entirely inadmissible.
    2. The plaintiff’s testimony was offered, for no other purpose than to show the commencement of the intercourse. She did not object to his disproving any inference that could be drawn from her testimony, but only insisted that he could not do it, by such evidence. He had the full benefit of his denial; The testimony was altogether inadmissible to prove the distinct fact, that the plaintiff first requested the defendant’s visits.
   Ellsworth, J.

We do not see any error of the court, in the manner in which they left the cause to the determination of the jury. It was altogether a question of fact, and they found, as they had a right to find, that the defendant had promised to marry the plaintiff, as she had averred, in her declaration. But we are constrained to think that the court mistook, in ruling out the evidence of the defendant, which bore upon the issue. To prove the promise to marry, or to render it most probable, and natural, that there was such a. promise, the plaintiff testified to the circumstance that the defendant visited her, in the first instance, at his special and formal request; a request, communicated to her through their mutual friend, Daniel Duffy, who professed to act in the affair under authority from the defendant. To meet this proof, and do away whatever of importance the plaintiff attached to the manner of. their first acquaintance; to show that he did not visit her, under any request from himself, but directly the reverse; that Duffy had requested him, as from her, to make the visits which he did make, he offered to prove these several facts to the jury. The precise objection which was made to this proof, and the objection which prevailed with the court, was, that there was no proof that Duffy was the authorized agent of the plaintiff, to bear to the defendant the request. Now, it seems to us, that the genuineness of this authority was not necessary; the object not 'being to prove the point of legal authority in Duffy, but what he told the defendant, as coming from the plaintiff, and the motive of the defendant’s visiting the plaintiff, as he had done. The defendant denied that he intended, or ever promised, to marry the plaintiff, and he wished only to show how he came to be in her society, from which she inferred so much. How important to the issue the evidence was, we are not called to decide. It was objected to, on another ground, and that ground is not, in our view, capable of being maintained. Besides, if the evidence of the plaintiff was admissible, and important to her claim, the evidence of the defendant was equally important to him.

For these reasons, we advise a new trial.

In this opinion the other judges concurred, except Waite, C. J., who was disqualified. •

A new trial to be granted.


author: Hinman, J.

text:
    Meeker vs. Hill and others.
    A promissory note, given for compound interest which accrued on other notes, is not usurious.
    The provisions, contained in the third section of the act, entitled “ An Act to restrain the taking of Usury,” passed in 1S49, are applicable to the taking, or reserving, usurious interest for the further forbearance of loans previously made, as well as to the taking, or reserving, usurious interest, at the time when the contract is made.
    This was a bill in chancery, brought to the superior court, for Fail-field county, October term, 1854, to foreclose the defendants of the right of redemption in certain mortgaged premises. The bill stated that, on the 14th day of August, 1849, Frederick W. Meeker, then in full life, since deceased, and Francis Meeker, were indebted to John S. Hill, since deceased, by their joint and several note, in the sum of $1,788, payable on demand, with interest annually, and, to secure the payment of said note, on the day aforesaid, they mortgaged to said Hill, the land in question.
    Frederick Meeker afterwards died insolvent, and Francis became the sole owner of the equity of redemption in said mortgaged premises, and refused to pay said note. The note was distributed to the plaintiff, as the widow of said Hill, as a part of her share in his estate.
    The defendant, in his answer, averred, that the note, at the time of the making thereof, was void, because it was given by the makers to the payee, in consideration of the interest accrued upon two other notes, then held by said Hill, against one Arza Meeker, both dated August 4,1840, one for the sum of $3,000, and the other for the sum of $2,900, payable on demand, with interest. At the making of the note mentioned in the bill, the interest on said two notes was calculated by said Hill, at compound interest, which the defendant claimed was unlawful and usurious, and at a greater rate than six dollars for the hundred dollars. The amount of said interest, as computed, was $1,788, which was the only consideration of the note, in the bill mentioned.
    A committee, to whom the cause was referred, made their report, embracing, among other matters, the following facts.
    On the 11th day of August, 1849, Arza Meeker, the father of said Frederick and Francis, was indebted to said Hill, then living, by two notes of hand by said Arza, given to said Hill, each dated December 4th, 1840, each payable on demand, with interest annually, one of which was for the sum of three thousand dollars, on which interest had been paid to December 4th, 1848,—the other for the sum of twenty-nine hundred dollars, on which interest had been paid to the 4th day of December, 1841, only,—the remaining interest, which had accrued on said notes, respectively, being then still unpaid and due from said Arza to said Hill. That, for the security of payment of said two notes, said Arza, on the 4th day of December, 1840, executed to said Hill, a mortgage, by warranty deed of that date, embracing in its terms the same land and buildings in said bill described. On said 11th day of August, 1849, said Hill called on said Arza to make some arrangement for securing the payment of the interest which remained unpaid, as aforesaid, and advised said Arza to convey his equity of redemption in said property, so mortgaged to said Frederick and Francis, and that they should, thereupon, give their note to said Hill, for the interest then due, and their mortgage of said equity of redemption, for security of payment of the same. No such arrangement was then made, but afterward, it was agreed, between said Hill, Arza, Frederick and Francis, that said arrangement should be made, in conformity with the advice of said Hill. It was then suggested by said John, that the interest on said notes, and for which said Frederick and Francis were to give their notes, as aforesaid, should be cast at compound rate if said Arza had no objection, and said Arza assented to the compounding of said interest. Thereupon said interest was then, in the presence of said John and Arza, computed at compound rate, by said Francis.
    Thereupon' said Frederick and Francis executed to said Hill, the note and mortgage in said bill mentioned, which was given for the interest which had accrued on said notes, compounded as aforesaid. No agreement for compound interest had been made between said John and Arza, nor any suggestion made by said John, that said interest should be compounded, before the time when said John proposed it should be compounded. In conformity with said arrangement, said Arza then conveyed to said Frederick and Francis, his said equity of redemption. There was no agreement made by said John for further forbearance of payment of said notes so given by said Arza, nor of either of them, as the consideration, or any part of the consideration of said note in said bill mentioned; but the entire consideration of the same was the interest at compound rate, as aforesaid.
    There was, on the 23d day of February, A. D. 1855, due upon said note, if there was no legal objection thereto, the sum of $1,520.13, and the same was due to the plaintiff, she being the owner of said note, by distribution, as in said bill alleged, and the said Francis, since the decease of said Frederick, became, and now is, the sole owner of said equity of redemption.
    There was, on the 23d day of February, 1855, due upon the notes so given by said Arza to said John, the sum of $6,793.89, for the payment of which so much of said land and buildings embraced in said mortgage, given by said Arza, as is subject to .and bound thereby, is by force thereof liable.
    The court accepted said report, found the facts therein set forth to be true, and also found that said note was not, in any part thereof, usurious or void, and passed a decree accordingly.
    The defendant thereupon filed his motion in error, and brought the record before this court for revision.

      Ferry, and W. F. Taylor, in support of the motion.
    The note, on which the mortgage was predicated, was usurious, being repugnant to the last clause of the act of 1849, in addition to the act to restrain usury. Rev. Stat. 1854, p. 867. The note in question, being entirely for interest, at compound rate, was taken for further forbearance of the former loans. If said note is not void for these reasons, it is void, as falling directly within the prohibitions of the clause of the statute referred to.

      Butler & Carter, and Averill, against the motion, contended,
    1. That the note is not a contract to take, accept, or receive, by means of any bargain, loan, exchange, or devise, more than six dollars for the forbearance of one hundred dollars, for a year, and is not within the letter, or spirit, of any act to restrain the taking of usury, and therefore is not usurious or void. Rev. Stat. 1849, ch. 18.

      2. That as the interest on the two original notes, by the terms thereof, to be paid annually, was not so paid, but a large amount remained unpaid, after it became due, it was computed at compound rate. There was no other consideration whatever, for the present note, than the interest so cast, which is what the plaintiff was legally, equitably, and morally entitled to.
    It has been well settled by this court, that interest computed, as this was, is not usurious. Camp v. Bates, 11 Conn. R., 487.
   Hinman, J.

The point in dispute in this case, was carefully examined, and settled by this court, in the case of Camp v. Bates, 11 Conn. R., 487, and can not now be considered an open question. It is suggested, however, that the decision in that case, is not an authority.against the defendant here, for the reason, that the question is not raised upon the general statute against usury, as it stood previous to 1849, but upon the.last clause of the act of that year, which provides that the provisions of the third section of that act shall apply, not only to cases where usurious interest is reserved, or taken, at the inception of the contract, but also to cases where interest, beyond the rate allowed by lq,w, is taken or reserved for further forbearance of loans previously made. Rev. Stat. 1854, pp. 867; 868.

But it appears to us, that by the expression, “beyond the rate allowed by law,” as used in the act of 1849, the legislature did not mean to make a distinction between usurious interest and any other kind of interest, which, though not strictly considered to be usurious, they denominated, or characterized, as interest beyond the rate allowed by law. All that was meant by this form of expression was, that the provisions of that section should extend, as well to cases where usurious interest was reserved, or taken for further forbearance of former loans, previously made at the legal rate of interest, as to cases where the usurious interest is reserved, or taken, at the time when the contract is first made. With this view of the meaning of the act of 1849, it is obvious that the decision in the case of Camp v. Bates, which can not be distinguished from this case, in respect to the facts upon which it was made, becomes a controlling authority, which we have no right to disregard, even if we wished to do so. But we believe, with the court in that case, that the taking of compound interest can not, per se, be considered usurious; and an agreement to pay it, made after the interest has become due, on a contract reserving interest to be paid annually, or at stated periods, is not only legal, but is generally just.and equitable, as founded upon a moral and equita•able consideration. There is therefore no error in the judgment complained of.

In this opinion the other judges concurred except Waite, C. J., who was disqualified.

Decree affirmed.


author: Stokrs, J.

text:
    Taylor and others vs. Taylor and others.
    A clause in a testator’s will was as follows; “ And whereas my wife has, by will, given her property to my said daughters, my will is, that the property of my said wife shall be estimated at its fair value, and the share of my son Edward, and the share given to the children of my son Seymour, and the share given to the children of my son George, shall, each share, be three hundred dollars more than the share each, given to my said daughters, after the estimated value of my wife’s property, is added to their respective shares.” Held, that it was not the intention of the testator, that a son should receive a larger inheritance from both parents, than a daughter, but that a sons’s proportion of the father’s property should be large enough to counterbalance the disparity, created by the mother’s disposition of her estate, thereby securing to all his children an equal inheritance.
    This was an appeal from a decree of the court of probate for the district of Westport, making distribution of the estate of Seymour Taylor, deceased.
    On the 19th day of May, 1848, Seymour Taylor made his last will and testament, and died on the - day of March, 1850. The portion of said will, material to the present case, is as follows:
    “1st. I give, devise, and bequeath to my beloved wife, Mercy Taylor, all my real estate, of whatever description, and wherever situated, to have and to hold to her use and behoof, for and during all the time she may remain my widow, and no longer. I also give to my said wife, for and during the full time aforesaid, for her use, all my household furniture. I also give to my said wife, one cow. The property above devised and bequeathed to be in lieu of dower in my estate. '
    “ 2d. After the payment of my just debts, funeral charges, and the expenses of settling my estate, I give, devise and bequeath all the 'rest and' residue of my estate, both real ahd personal, to my children, Edward Taylor, Mary Taylor,. Martha Ells and Eliza Haythorne; and also to my grandchildren, Stephen Taylor, Harriet ■ Taylor, John Taylor, George Taylor, and Charles Taylor, the children of my son, Seymour Taylor; and to Ann Eliza Taylor, George F. Taylor, and - Taylor, the children of my son, George Taylor, in manner and form following, to wit:
    “ The residue of my estate, my will is, shall be divided into six shares, or parts; one of which I give, devise, and bequeath to my son Edward, to him and to his heirs forever; and one share to each of my said daughters; one share to the children of my son, Seymour, above named, to be equally divided among them; and one share to the above named children of my son, George, to be equally divided among them. And whereas, my wife has, by will, given her property to my said daughters, my will is, that the property of my said wife shall be estimated at its fair value, and the share of my son, Edward, and the share given to the children of my son, Seymour, and the share given to the children of my son, George, shall each share be three hundred dollars more than the share each given to my said daughters, after the estimated value of my wife’s property is added to their respective shares. The shares of my said daughters being to them, their heirs and assigns.”
    By a subsequent clause in his will, the testator gave in trust, to his son Seymour Taylor, the share of his estate before given to the children of said son, and gave in trust, to his son, George Taylor, the share of his estate given before to the children of said son. Also, by a codicil to said will, the share given to Edward, was devised and bequeathed to him in trust, for his children.
    After the decease of the testator, this will was duly proved and established by the court of probate for the district of Westport. Upon the settlement of the administration account, the court of probate found that certain advancements had been made by the deceased, in his lifetime, to his son, Seymour, and to each of his daughters, and passed an order of distribution. Two of the distributors appointed by this order, made their return, finding therein that they “ examined the property of Mercy Taylor, widow of the deceased, and estimated the value thereof to be $600, which, added to the amount of the estate of said deceased, ordered to be distributed and divided agreeably to the provision of said will, gives to the three sons of the deceased, in trust for their children, respectively, each the sum of $843.38, and to the three daughters of deceased, each, out of said deceased’s estate, the sum of $343.48.” They then proceeded to divide the estate of the deceased, making the share of each daughter five hundred dollars less than the share in trust to, each son. From the orders appointing distributors, and accepting a distribution so made, the daughters of the deceased appealed to the superior court, where the case was reserved for the advice of this court.

      Butler Sf Garter, and Wilson, for the appellants.

      Loomis Sf Warner, for the appellees.
   Stokrs, J.

The decision of the present case, depends entirely on the correct construction of the following portion of the testator’s will:

“ And whereas my wife has, by will, given her property to my said daughters, my will is, that the property of my said wife shall be estimated at its fair value, and the share of my son Edward, and the share given to the children of my son Seymour, and the share given to the children of my son George, shall each share be three hundred dollars more than the share each given to my said daughters, after the estimated value of my wife’s property is added to their respective shares.”

The distributors of the estate deemed themselves bound by these directions, so to divide the property of the deceased, that the share of each daughter, in the entire patrimony, received by her, from both parents, should be less in value, by three hundred dollars, than the share of the living son and of the representatives of each of the sons, deceased. The. decree of the court of probate, approving a distribution made upon these principles, this court is now called upon to review.

Although the language of the testator is confused, and furnishes some color for opposite interpretations, we have concluded that he did not design so to discriminate, in favor of his male representatives, as to make them, on the whole, richer than their sisters; but, on the contrary, that his purpose was to secure to all his children an equal inheritance. His will was made during the life of his wife, who had already prepared her own last will and testament, in which she had bequeathed all her property to the daughters. To this fact he makes express allusion, and thereupon proceeds, not to make a retaliatory, and partial, appropriation in favor of his neglected sons, but to neutralize, so to speak, the preference made by his wife in behalf of their female children. He therefore provides, not that a son shall receive a larger inheritance from both parents, than a daughter, but that the former’s proportion of the father’s property shall be large enough to counterbalance the disparity created by the mother’s disposition of her estate.

Some part of the language, made use of by the testator, whether taken in a strict, or ordinary sense, will admit of no other construction than that which we have adopted. He is dealing with his own property; parcelling out shares of his individual estate among his heirs; and he declares his will to be, that the “ share, given ” to each of one class of devisees, shall be three hundred dollars more than the share, given .to each of another class. So far, his expressions are clear and unambiguous. It is not to be supposed that he is devising any property but his own. He is not distributing shares out of his wife’s estate.

The question remains, whether there is anything in the other portions of the contested clause which requires violence to be done to the language first referred to, and which should induce the court to believe that the testator was dividing his wife’s estate, as well as his own.

Certainly, the antecedent member of the sentence, in which the testator gives a reason for making an unequal distribution of the estate, does not favor the construction approved by the court of probate. “ Whereas,” says the testator, “ my wife has given her property to my daughters,” &c., I am about to give my sons three hundred dollars more than I shall bequeath to my daughters. The testator discloses his motive for not making an equal division of his property among his children; it is because his wife has given her entire estate to the daughters. It would, at once, be inferred from this declaration, that he designed to correct this inequality; that he meant to” suggest the wife’s distribution of her property, as a reason for his own discrimination, in favor of his sons; and that his language was equivalent to an express assertion that, were it not for his wife’s disposition of her separate estate, he would have devised his property in equal shares among all his children. It is difficult to see any practical logic in the process, which the appellees’ construction of the will would impute to the testator’s mind. A man might desire to make his sons richer than his daughters, but he would hardly give, as a reason for it, that his daughters were likely to receive more than his sons, of the estate of another person.

•But it is said, that the deceased proposed to have an appraisal made of his wife’s property, and that, upon the basis of this appraisal, there should be such a division of his own estate, as would make the entire patrimony of each son, (or, of the children of each son,) much larger than the entire patrimony of each daughter. This allusion of the testator to an estimate of his wife’s property, it must be confessed, tends to complicate his meaning, but does not, in our judgment, involve the extraordinary construction claimed by the appellees. It would seem that the distributors attached to the word “ share,” in the controverted sentence, the force of the phrase, “share in the estate of both father and mother;” and to this interpretation they rigidly adhere, even throughout the concluding clause, in which the testator speaks of adding the estimated value of his wife’s property to his daughters’ shares. If the latter word means shares, in both estates, the sense becomes too involved to be supposed to have been deliberately intended by the writer. If, on the other hand, the word “share” imports, as it naturally would, in such a context, the distributive portion which the testator was about to allot, out of his own estate, to each of his heirs, we then find, in the concluding clause, simply his declaration, (very awkwardly, and inaccurately, expressed,) that he had thus made his sons’ shares the larger, only in view of the fact that his wife has bestowed her entire separate estate upon his daughters; or, (to quote his own language,) “ after the estimated value of [his] wife’s property is added to [his] daughters’ respective shares.” It is true that the clause, thus construed, neither adds to, nor detracts from, the preceding parts of the sentence. It is, in reality, mere surplus-age. But in the testator’s mind, it served the purpose of an explanation which he chose to 'make. He desires, he says in effect, that this unequal distribution of his property shall take place, only after it is settled, (as he believes it to be,) that his daughters are to receive all their mother’s estate. This estate of the mother he has fairly estimated in his own mind, and considering it a fixed conclusion that his daughters are to inherit it, he is disposed to give his sons three hundred dollars more, out of his property, than he confers upon his daughters.

Some further embarrassment grows out of the expression, “ My will is that the property of my said wife shall be estimated at its fair value.” It is said that the testator contemplated a formal appraisal, after his death, of his wife’s estate, which appraisal should serve as a basis for the distribution of his own. We can not, certainly, in view of the considerations already explained, give so' extended a meaning to the foregoing phrase; but presume it simply an expression of the testator’s determination to make, in his own mind, a fair valuation of his wife’s separate estate, with a view to adjusting his disposition of his own, between the children who were to receive nothing from their mother, and those, to whom, as he understood it, his wife had already “ given her property.”

We advise the superior court, therefore, that the distribution was erroneous, and the decree of the court of probate, accepting it, should be reversed; a conclusion, which renders it unnecessary to consider the objection urged to the distribution, on the ground that it was made by only two of the distributors.

In this opinion, the other judges concurred.

Decree of probate reversed.


author: Storrs, J.

text:
    Hoag vs. Hatch.
    The rule in this state, that in civil, as well as in criminal cases, where there are several counts in a declaration, and a general verdict is rendered thereon, . judgment will not be arrested, if any of them are good, differs from the rule •in England, in civil actions, where a motion in arrest will prevail, if any of the counts are bad.
    In order to render words, charging a crime, or offence, actionable of themselves, it is not sufficient that they impute to a person merely the violation of a penal, or criminal, law, but they must charge him with an offence, which involves moral turpitude, or would subject him to an infamous punishment.
    The plaintiff, in one count of his declaration, alleged that the defendant charged him with “ having paid to one of the electors of the town of S,” who was named, “money to secure the plaintiff’s election as a justice of the peace;” and, in another count, with “having .bought rum, and given it to some of the electors of that town, to secure his election to said office, and with having bought rum, and distributed it to secure his said election,” but alleged no speeial damage to the plaintiff. Held, that the words, laid in such count, imported not only an offence, punishable by the seventeenth section of the “ Act relating to Electors and Elections,” (Stat. 1849, tit. xi., ch. 2,) but one, involving moral turpitude.
    Where the plaintiff claimed to have proved, that the defendant spoke the words aforesaid of the plaintiff, in reference to his election to said office, and the defendant requested the court to instruct the jury, that said words did not import a criminal charge, under the statute, and were not actionable, per se, and without proof of special damage; but the court refused to comply with this request, and instructed the jury to find whether the defendant spoke the words alleged in the declaration, and if so, whether he thereby imputed to the plaintiff the crime set forth therein : it was held, that such course was correct.
    This was an action of slander, tried before the superior court, for the county of Fairfield, February term, 1855.
    The declaration contained six counts,—only two of which, the second and fifth, are material to the present case. In the second count, the plaintiff alleged that “the defendant had a certain discourse of, and concerning, the plaintiff, and of, and concerning, his election to the office of a justice of the peace, at an electors’ meeting, held in the town of Sherman, on the first Monday of April, 1852, and then and there falsely and maliciously uttered and published, in the presence and hearing of sundry persons, of and.concerning the plaintiff, and of and concerning his, the plaintiff’s, election as a justice of the peace, at said electors’ meeting, the following false, scandalous, and defamatory words, viz., “ Hoag,” meaning the plaintiff, “had paid Isaac Hatch money to secure his,” meaning the plaintiff’s, “ election,”—meaning that the plaintiff had- paid Isaac Hatch and other electors of said Sherman, money for voting for him, the plaintiff, as a justice of the peace, at said electors’ meeting; “ Hoag,” meaning the plaintiff; “had sent money by Joel Joyce to Hatch,” meaning Isaac Hatch, “to secure his,” meaning the plaintiff’s, “election to the office of a justice of the peace, at the electors’ meeting, holden at Sherman, on the first Monday'of April, 1852;” “Hoag,” meaning the plaintiff, “had sent money by Joel Joyce to Hatch,” meaning Isaac Hatch, “to buy votes,” thereby meaning that the plaintiff had given money to certain of the electors of said Sherman, for their votes for him for a justice of the peace, at said electors’ meeting, and was guilty of bribery at election.”
    In the fifth count, the words were, charged as follows: “Hoag,” meaning the plaintiff, “bought rum of Isaac Hatch, and gave the same to some of the electors in Sherman, to secure his,” meaning the plaintiff’s “election,” thereby meaning that the plaintiff gave rum to some of the electors of Sherman, to induce them to vote for him, the plaintiff, as a justice of the peace, at said electors’ meeting; “Hoag,” meaning the plaintiff, “bought rum and distributed it, to secure his election,” thereby meaning that the plaintiff gave, by way of gratuity, rum to certain of the electors of Sherman, for voting for him for justice of the peace, at the electors’ meeting, held at said Sherman, on the “first Monday of April, 1852.”
    The defendant pleaded the general issue, with notice of special matter to be given in evidence.
    Upon the trial, the plaintiff introduced evidence to prove, and claimed that he had proved, in support of the first five counts in the declaration, that the defendant, speaking of the election of the plaintiff in the manner set forth in the declaration, said of him, “ he sent money to Isaac Hatch to buy rum to secure his election,”—“ he sent money to Isaac Hatch’s to buy rum with to buy votes,”—“ he sent money, by Joel Joyce, to Isaac Hatch’s, to buy rum to buy votes to secure his election,” without any evidence of special damage.
    The defendant claimed, that the words aforesaid, did not import a criminal charge, at all, under the statute, and if they did, they were not actionable, per se, and without proof of special damage, as they did not charge an offence infamous in itself, but an offence which was created by statute only, and requested the court so to charge the jury. The court did not so instruct them, but submitted the case to them, to find whether the defendant spoke the words set forth in the declaration, and if so,-whether he thereby imputed to the plaintiff the crimes set -forth.
    The jury having rendered a verdict in favor of the plaintiff, the defendant moved for an arrest of judgment, for the insufficiency of the declaration; and also moved for a new trial, for misdirection to the jury.

      Butler Sf Carter, and W. F. Taylor, in support of the motion.
    I. The judgment should be arrested, because the first four counts do not aver that any violation of the statute was committed. The words, alleged to have been spoken, do not charge that the defendant “ offered money, or other thing,” to any voters, by way of “gift, fee, or reward, for giving, or refusing to give, a vote ” for him, as justice of the peace, or that he proffered “any gratuity, reward, or preferment, for any vote given, or to be given.” They allege the paying, giving, sending of money' to Isaac Hatch, not to secure Hatch’s vote, but to be used by Hatch to buy rum, or votes, to secure the plaintiff’s election.
    The fifth count does not import anything more, than, that he treated with rum, some of his personal, or party friends, who, he knew, would vote for him. The words must charge some overt act; the actual commission of the offence.
    II. A new trial should be granted, because the words proved, and relied on, do not charge any act to have been done by the plaintiff, or Hatch, which would make them answerable to the penalties of the statute.
    If the words used did import a violation of the statute, the offence itself is not of such a character, as to make them actionable, per se.

    It can not be said that a charge of violating any, and every statute, is actionable. The rule adopted by the court in Barker v. Coffin, 5 Johns., 190, is as broad, as can safely be adopted.

      Hawley, and Belden, and Loomis Sf Warner, contra,
    cited, 1 Sw. Dig., 489, 490. Miller v. Parish, 8 Pick., 38. Chaddock v. Briggs, 13 Mass. R., 48. Frisbie v. Fowler, 2 Conn. R., 707. Chapman v. Gillett, 2 Conn. R., 40. Lyman v. Welmore, 2 Conn. R., 42. 13 Johns. R., 124.
   Storrs, J.

The verdict, in this ease, was rendered for the plaintiff, and damages assessed, on the first five counts, collectively, and on the sixth count, separately. The motion, in arrest of judgment, is not pursued as to the sixth count, which is confessedly good. Respecting the first five counts, judgment should not be arrested on them, if any of them are sufficient; the rule here being that, in civil as well as criminal cases, on a motion in arrest of judgment, where there are several counts and a general verdict, judgment will not be arrested if any of them are good, and differing, in this respect, from the rule in England in civil cases, where a motion in arrest will prevail, if any of the counts are bad.

Under the rule, thus established here, the motion in arrest of judgment, on the first five counts, should not prevail; because, whatever might be thought of the sufficiency of the first, third and fourth counts, we are clearly of opinion that the second and fifth counts are good. The words, as laid in each of these two counts, plainly charged the plaintiff with a violation of the provision, punishing bribery at elections, contained in the seventeenth section of the “ Act, relating to Electors and Elections.” Rev. Stat. 1849, tit. xi., ch. 2, § 17, p. 320. Such is their clear and natural import. In the former of these counts, the words, in connection with the averments, and innuendoes, accompanying them, charge the plaintiff with having paid to one of the electors, of the town of Sherman, who is named, money to secure the plaintiff’s election, as a justice of the peace, and in the latter, with having bought rum, and given it to some of the electors of that town, to secure his election to' said office, and with having bought rum and distributed it to secure his said election; and these charges are not qualified by any accompanying words. To hold, as the defendant claims, that the words laid in the second count, import only that the plaintiff had furnished money to Hatch, for the purpose of enabling him to buy votes for the plaintiff for said office, but that it did not appear that the money was used for that purpose, or that those, laid in the fifth count, only import that the plaintiff treated some of the electors with rum, after the election, for having voted for him, would be a palpable perversion of the language of the defendant. None of the words, laid in the fifth count, are fairly susceptible of the- meaning thus attached to them by the defendant; and although insulated portions of those, charged in the second count, admit of the construction claimed by him, yet they do not at all qualify the meaning of other words in the same set, which clearly import that the plaintiff had paid, and sent, money to the voter therein named, for the purpose of inducing him to vote for the plaintiff.

The remaining objection, to these counts, is general in its character, and applies to both of them. The defendant claims that words, charging a person with a violation of the seventeenth section of the act, which has been referred to, are not actionable, per se, because the offence, prohibited by it, neither involves moral turpitude, nor subjects the offender to an infamous punishment; and that, as no special damage is alleged in these counts, they are insufficient. We are induced to adopt the principle relied on by the defendant, that, in order to render words, charging a crime, or offence, actionable of themselves, it is not sufficient that they impute to a person merely the violation of a penal, or criminal law, but that they must charge him with a crime, which involves moral turpitude, or would subject him to an infamous punishment. But this principle does not aid the defendant in this case; for the offence of bribery, imputed to the plaintiff, involves, in our opinion, moral turpitude, in a very high degree, as it is calculated, and designed, to impair the purity of the elective franchise, by corrupting the integrity, and destroying the independence, of those who exercise it, and thus to prevent a free and honest expression of the public sentiment at the ballot-box, which is the very foundation and support of our government.

The motion, in arrest of judgment, should therefore be overruled.

The defendant also moves for a new trial, for error in the charge of the court below. If the question, whether words, imputing to the plaintiff a violation of the law which has been mentioned, are actionable of themselves, was properly made by the defendant on the trial, it results, from what has been said, that the court below did not err in not charging, as requested by. the defendant, nor do we think that the charge, in other respects, was wrong. The evidence, as to the words claimed to be proved, was received without objection, and no question of variance, between the words, as laid and proved, was raised. Nor was any point made as to the propriety of the innuendoes. If the words proved constituted only a part of those laid, and were not actionable, it would probably have been competent for the defendant to insist, that they should be excluded from the consideration of the jury, as a ground of recovery; or, if all of the words laid in any one count, had not presented an actionable charge, the defendant might have requested a verdict on that particular count, so as to have raised the question as to its sufficiency: but no such points were made on the trial.

A new trial should not be granted.

In this opinion the other judges concurred, except Waite, C. J., who was disqualified.

A new trial not granted.