author: Stokes, J. Waite, C. J.

text:
    Wilson and others vs. The State.
    The offence of burglariously breaking and entering a shop, store and warehouse, with intent to steal, (Rev. Stat., tit. iv., chap. 4, § 39,) is complete, without an actual larceny. The latter, if committed, is a distinct' offence, although the theft ensued upon the breaking.
    It follows, that a conviction for such larceny is not pleadable in bar against a subsequent prosecution for the breaking.
    Generally, to constitute a legal identity between two offences, so as to make an acquittal, or conviction of one, an available defence against a prosecution for the other, it is necessary that the averments of the second information should be such, that, if proved, they would have warranted a conviction under the first.
    Although there is a strong current of American authorities in favor of so modifying the foregoing rule as to treat a conviction for a lesser offence, which is an ingredient of a greater crime, as a bar to a subsequent prosecution for the greater, this doctrine, if it exists, is inapplicable to the offences of theft and burglary, under the Connecticut statute.
    Whether, if the second information should charge a burglary and larceny, an acquittal, in a former prosecution, for the larceny only, would be a defence. Qu.?

      The same rules govern cases of former acquittals, and former convictions.
    A banking-house is a store, shop or warehouse, within the meaning of the statute above mentioned.
    This was an information brought to the county court for Windham county, by the attorney for the state, against Henry J. Wilson, John Scott, and Peter M. Crandall, and was substantially as follows:

      “On the seventeenth day of November, A. D. 1854, at about the hour of ten o’clock in the night-season of the same day, the defendants, with force and arms, at Windham, in said ®Wift'd'ham county, the shop, store and warehouse (being one and the same building) of { The President, Directors and Company of the Windham Bank,’ a body politic and corporate, legally incorporated by the legislature of this state, and located and doing business at said Windham, then and there situate, and wherein goods, wares and merchandise were then and there deposited, the proper goods, chattels and estate of the said company of The ‘ President, Directors and Company of the Windham Bank,’ feloniously and burglariously did break and enter, with intent the said goods, wares and merchandise of the said company of ‘ The President, Directors and Gompany of the Windham Bank,’ then and there deposited in said shop, store and warehouse, feloniously and burglariously to steal, take and carry away, against the peace and contrary to the form of the statute-laws of this state,” &c.
    To this information, the defendants pleaded in bar, that heretofore, at the same term of said county court, an information for larceny was presented, charging them with stealing the same property which in said information they were charged with having an intent feloniously to steal; that on the plea of not guilty, they were tried, found guilty, and judgment was rendered against them accordingly: that said information for larceny was for the same offence as that charged in the present information, and that the offence charged in the present information, was merged in the offence charged in said information for larceny.

      The plea in bar upon a demurrer, was held to be insufficient, and a trial then had upon the plea of not guilty.
    The jury having returned a verdict of guilty, the defendants filed a bill of exceptions, and brought their writ of error to the superior court, which was there reserved for the advice of this court.

      Foster, Wait, and J. H. Carpenter.

    1. Burglary is a complex crime, compounded of an overt act done, and an intent to do another act not done. The overt act is the breach and entry of the building; and this is coupled with the intent to steal. The criminal character of the offence does not consist in the breaking and entering, but in the intent to steal. The breaking and entering, independent of the intent to steal, would be a trespass only.

      2. The accused plead autrefois convict, and the record shows a conviction for stealing the same property, which they were subsequently prosecuted for having broken and entered with intent to steal; and the same and the entire evidence, that had been offered in the one case, was the evidence offered in the other case. The plea of former conviction, depends upon the principle that no man shall be more than once put in peril for the same offence. 4 Black. Com., 336. 1 'Chit. Crim. Law, 462. Now the rule of law is settled in this state, that a conviction of a crime is a bar to a prosecution for an intent to commit the same crime. State v. Shepard, 7 Conn. R., 54. The accused were first convicted of stealing the bills of the bank, and then, upon the same testimony, convicted of breaking and entering the banking-house, with intent to steal the same bills. These men were, in fact, twice tried, and twice convicted, for one offence.
    3. Crimes are indivisible, and men can not be convicted and punished for two distinct felonies, growing out of the same identical act, when one is a necessary ingredient of the other, and the state has selected and prosecuted one to conviction. State v. Shepard, 7 Conn. R., 54. State v.
      Benham, 7 Conn. R., 44. State v. Parmelee, 9 Conn. R., 259. State v. Cooper, 1 Greenl. R., 361. People v. M'Gowan, 17 Wend., 386. The larceny for which the accused were first convicted, being an essential part of the burglary for which they were subsequently convicted, and supported by the same evidence, a conviction for the former crime is a bar to a prosecution for the latter; the inferior offence being merged in the greater. In this case, the same fact of stealing is essential as in the former case, and equally the subject of enquiry. The practical construction given to our statutes, punishing larceny and burglary, on which these prosecutions were based, does away with the idea that the law makers intended a double punishment.
    4. A banking-house is not a shop, store or warehouse, 'within the meaning of the statute. These are all buildings, distinct from each other, with appropriate names, that are well understood. Webster’s Dictionary. Booth v. The State, 18 Conn. R., 439-40. Rawson v. The State, 19 Conn. R., 292. Penal statutes should be construed strictly, and not extended to every offence, which, in the opinion of the court, comes within their meaning, without regard to their letter. 1 Sw. Dig., 12. Daggett v. The State, 4 Conn. R., 60. Booth v. The State, 4 Conn. R., 65. State v. Bailey, 10 Conn. R., 144. State v. M Gowan, 20 Conn. R., 245.
    The legislature, when they enacted a statute in 1853, punishing the attempt to break and enter a shop, store, outhouse and warehouse, also embraced “banking-house;” showing truly that they did not consider a banking-house embraced in the term store, shop .or warehouse. Stat. Conn., Ed. 1854, 312. State v. Carrier, 5 Day R., 131. State v. Bailey, 10 Conn. R., 144.
    jE. Carpenter and Bwrnham, for the defendants in error.
    1. The great principle which lies at the foundation of the pleas, autrefois acquit and autrefois convict, is that no person shall be placed in peril of legal penalties, more than once for the same offence.
    2. The true test by which the question may be tried, whether the offence charged in the second information is the same as that charged in the first, is whether the evidence, necessary to support the second, would have been sufficient to produce a legal conviction on the first. Archbold’s Pl. & Ev., 82. 2 Sw. Dig., 400. 1 Russell on Crimes, 829. Et Seq. Roscoe Crim. Ev., 332. 2 Leach 708. 4 Pick., 496.
    3. It is manifest that the evidence necessary to support the charge of breaking in, with intent to steal, would fall far short of proving an actual theft; and so the evidence to prove the charge of theft, would be insufficient to prove the breaking in with intent to steal. Either offence might have been committed and not the other; the one has no necessary connection with the other, the one is no part of the other. It does not follow, because both offences were committed on the same night, at the same place, and for the same ultimate purpose, that they are therefore but one and the same offence.
    4. Neither can it be claimed, with any more reason, that the former charge of theft includes this latter offence of breaking, &c., as murder includes manslaughter, robbery, theft, rape, an attempt to commit rape, &c. 7 Conn. R., 54. 2 Sw. Dig., 481. Nor can it be claimed that, upon the former information for theft, the prisoners could have been convicted of the breaking, &c., as one may be convicted of manslaughter on an indictment for murder, or of theft on an information for robbery, or of an attempt to commit a rape, upon an indictment for a rape, and so are exposed to conviction a second time for the same offence.
    An acquittal of burglary will not be a bar to a subsequent prosecution for theft. 2 Sw. Dig., 401. Arch. PI. & Ev., 82. Neither would a conviction of burglary be a bar to a subsequent prosecution for theft, the same rules applying to both pleas. 2 Sw. Dig., 401. Arch. PI. & Ev., 86. And on the same reasoning, a conviction, or acquittal, of theft would not bar a prosecution for burglary. 2 Sw. Dig., 401.
    5. A banking-house, wherein the goods and effects of the banking-company are deposited, and where they do their business, is a store, shop or workhouse, within the meaning of the statute, on which the information is founded. 5 Day R., 131.
   Stokes, J.

The information in this case is founded upon a statute of this state, (Stat., 1854, p. 812,) which makes it a crime to break and enter, in the night-season, the store, shop, or warehouse of another, wherein goods, wares or merchandise are deposited, with intent to commit theft, or any crime punishable by imprisonment in the Connecticut state prison. The accused is charged with breaking, with this criminal purpose, into a certain banking-house, farther described as the store, shop and warehouse of the president, directors and company of the Windham Bank. The defendants’ plea avers, in effect, that they have been already convicted of stealing the property, which they are now accused of designing to steal when they committed the act of criminal breaking. There is no allegation, that this theft ensued immediately upon the breach of the premises; but as no objection has been taken to the form of the plea, and as it was the manifest purpose of the defendant to represent the breaking and larceny as one transaction, we shall treat the plea as sufficient in that respect. To this plea there is a demurrer; and the first and most important question is, whether the conviction for theft is a bar to a '"prosecution for the criminal breaking, which preceded the theft.

The right of pleading a former conviction, or former acquittal, of the same crime, (for in both cases the same rules govern,) rests upon the important common law maxim of criminal jurisprudence, that no person shall be put in jeopardy, that is to say, tried, more than once for the same offence. This principle we do not mean to impair. But it is our manifest duty so to apply it, as not to create an immunity in cases of crime, which do not constitute, either in whole or in part, the offences for which the criminal has once been exposed to punishment. Such a defence should never be available, unless it appears from the averments in the plea, that the offence for which the accused has before been tried and that for which he is afterward prosecuted, are really the same. A uniform doctrine on this point has prevailed, wherever it has been discussed.

Blackstone, (4 Comm., 336,) emphatically says: “ It is to be observed, that the pleas of autrefois acquit and cmtrefois convict, must be upon a prosecution for the same identical act and crime.”

In the case of Commonwealth v. Roby, (12 Pick. R., 502, 503,) chief justice Shaw states the rule with more detail. “ This plea of former acquittal, must depend upon facts, so combined and charged, as to constitute the same legal offence or crime. * * * There may be a great similarity in the facts, where there is a substantial legal difference in the nature of the crimes. * * * In considering the identity of the offence, it must appear by the plea, that the offence charged, in both cases, was the same in law and in fact. The plea will be vicious, if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact.”

It is scarcely necessary to state, that the former charge against the accused need not have been framed in the same language, and form of allegation, as the pending information, in order to entitle the defendant to plead it. Variations-of formal, circumstantial and immaterial averments, do not alter the substance of the charge, and ought not to deprive the accused of the benefit of his previous trial. If one were indicted for a murder committed on a certain day, and acquitted, he could not be successfully prosecuted for the same murder, charged on a different day. The averment of time is formal merely, and is not an element in the crime of which the accused has once been acquitted. 1 Chitt. Cr. Law, 453. 2 Hale, P. C., 179. Dyer, 285. 2 Hawk. ch. 35,83.

Another application of the general rule is obviously just. If the offence, for which the defendant has formerly been tried, so embraced and included the offence charged in the second prosecution, that the defendant might have been convicted of the latter on the first trial, the former trial ought to be a defence; for the charge subsequently made should have been, or perhaps was, included in the first indictment. If a person, acquitted of murder, should afterward be indicted for manslaughter of the individual on whom the homicide was committed, he might truly say, that he had once been in jeopardy with respect to that very matter, and might have been convicted of the manslaughter on his former trial, and ought not now to be tried for that offence.

A test has been recognized in England, and in most of the United States, by which the availability of a former acquittal, or conviction, should be definitively determined. It is expressed by East, in his Crim. Law, p. 522, and is substantially this. Unless the former indictment was such that the prisoner might have been convicted under it, by proof of the facts set up in the second indictment, an acquittal on the first indictment can be no bar to the second. See Rex v. Vandercomb, 2 Leach, 816. In a modern case, Rex v. Taylor, 3 B. & C., 502, it is held, that a former acquittal is no bar to a subsequent prosecution, unless the" facts charged in the second indictment would have warranted, if proved, a conviction under the first. This rule we believe prevails in this country, with a modification, which, as will hereafter appear, does not aid the present’’defendant. It remains, therefore, for us to apply this test to the case under review.

And on this point, it is enough to say,, that the facts set up in the pending information, to wit, that the prisoner broke into a certain banking-house with intent to steal, would not, if proved, warrant a conviction for a larceny of property in the banking-house.

But again. It will be seen that there is a difference in the two offences charged in the two informations against the prisoner, founded in the very nature and essence of the offences themselves. Theft is a common law crime, and its definition is well understood. Breaking a shop with intent to steal, is a statute offence only, and the act thus made criminal, is the act of breaking ; its criminality depending, as in all eases, upon the intent with which it is done, and which, in the present instance, must be a specific intent to steal. The offence is complete, whether the theft is consummated or not. It need not be consummated at all; may be forcibly prevented; the purpose to steal may be abandoned, and still the prisoner may have done every act necessary to constitute the crime prohibited by this statute. Undoubtedly, proof of a theft actually committed, would be the very highest evidence of the specific intent which is an element in the crime, the intent to steal, but it is not necessary even for that purpose. The intent may sufficiently appear from other circumstances. Certainly, if theft is not even a constituent element of the statute offence, the accused, in the present case, can not be said, by a conviction for larceny, to have been in jeopardy on a charge of breaking with intent to steal. If he had committed an assault and battery after making his felonious entry into the banking-house, he might, with equal propriety, set up a conviction for that misdemeanor as a sufficient defence to the present prosecution for the criminal breaking.

It will be found, that these views are amply sustained by the authorities : for the authorities relating to the common law offence of burglary are exactly applicable here; the difference between that crime and the similar class of offences prohibited by our statute being simply, that the latter includes the breaking of shops, stores, &c., as well as dwelling-houses, and limit the criminal intent required, to that of a purpose to steal, or to commit some state’s prison offence, instead of permitting the intent to commit any kind of felony to determine the quality of the act prohibited.

Russell, in his treatise on crimes, vol. i., p. 827, in speaking of the intent necessary to constitute a burglarious breaking, says, that it must be expressly alleged -and proved, “ either that the party committed a felony in the dwelling-house, or that he broke and entered the house with intent to commit a felony therein.” So complete is either of these offences by itself, and so distinct from the other, that it was decided by all the judges of England, in-1796, that a prisoner indicted for burglary, in breaking and entering a dwelling-house, with intent to • steal, could not plead in bar an acquittal upon an indictment for the same burglary which charged a breaking and entering the same dwelling-house and stealing there. Rex v. Vandercomb, 2 Leach, 708. “ If,” said Mr. Justice Buller, in delivering the opinion of the court, “ crimes are so distinct, that evidence of one will not support the other, it is as inconsistent with reason as it is repugnant to the rules of law, to say that they are so far the same that an acquittal of the one shall be a bar to a prosecution for the other.” Without expressing any opinion of the particular result arrived at in this case, we assume it to be obvious, that the court went much farther than it is necessary for us to go in the present cause ; for in that instance, one important element of the two offences charged in the two indictments, was common to both, to wit, the breaking.

In Wharton’s Criminal Law, p. 196, the rule is thus laid down. “ If the first indictment were for a burglary, with intent to commit a larceny, and did not charge an actual larceny, an acquittal on it would not be a bar to a subsequent indictment for the larceny ; because the defendant could not have been convicted of the larceny on the first indictment.” This is the converse of the proposition xiow affirmed by us, but the reason on which it rests, applies with equal force to the pending case.

In Hite v. The State, 9 Yerger, 357, the supreme court of Tennessee decided, that an acquittal for stealing a bank-note of the Planter’s Bank of Tennessee, payable on demand at the Merchants’ and Traders’ Bank, was not a bar to a subsequent prosecution for stealing a bank-note of the Planters’ Bank of Tennessee, payable on demand at the Mechanics’ and Traders’ Bank. In their opinion, the court confirm nearly all the general principles to which we have adverted, and approve the language of Judge Buller, as above quoted.

Chitty, in his Criminal Law, p. 453, adopts the same language, as a settled doctrine of the law of England. And Chief Justice Shaw, in the opinion already alluded to, 12 Pick., 504, expresses the opinion that Judge Buller’s rule is not only perfectly reasonable and just, “ but is well calculated to give effect to the principle, that no one shall be tried twice for the same offence.” The idea of the learned judge seems- to be, that a rule, which subjects the question of identity of the crimes charged, to the test of the evidence necessary to support the one and the other, furnishes a practical and substantial criterion in such cases, and is favorable to the accused.

Chitty, Cr. Law, 456, says, “it is generally laid down that an acquittal of burglary will not prejudice an indictment for larceny, or vice versa. This must be understood of those cases in which the former charge did not necessarily include the latter.” The distinguished writer here alludes to those cases, where the first prosecution charges both a burglary and theft, and where, of course, an acquittal ought to be a bar to a new prosecution for the same larceny. But where, (he would infer,) the theft is not made an ingredient in the burglary, (as it may be or may not be,) a conviction or acquittal for an offence so charged, will not affect a second indictment for the larceny only.

In the State v. Cooper, 1 Green. R., 376, the supreme court of New Jersey seem disposed to question the particular point determined in the case of the King v. Vandercomb, and express the opinion that a conviction for larceny would be a good bar to a prosecution for burglary and stealing the same goods: but the court properly and cautiously add,—■“ whatever might be its effect upon an indictment for burglary with intent to steal.”

Judge Swift, 2 Sw. Dig., 426, in discussing the general subject of former acquittals and former convictions, remarks, if the former charge was such that the defendant could not have been acquitted of the latter upon it, the acquittal can not be pleaded.”

In short, the test, by which we are endeavoring to decide the present case, has received the unvarying sanction of all the authorities, however loosely it may have been applied in particular instances.

If the present information had charged the accused, in the anomalous mode adopted in some English forms, with breaking and entering and stealing, a different question might arise in the present case. As the offence of burglary, as understood at the common law, is complete without a larceny, it is singular that this redundant method of pleading, by which an unnecessary allegation is incorporated into a criminal complaint and made material, should have been so extensively resorted to in England. But under our statute, it is at least doubtful, whether a pleader could safely embrace a charge of larceny in the same count, in which the statute offence is set up. At all events, the first information against the present defendant, charged him with theft only, and the second imputes to him only the criminal breaking, without any superfluous averment in either case. It follows, according to the authorities cited, that the conviction for the theft is no bar to the present information.

The defendant has relied on a class of cases, in which many of the courts of this country seem to have held, that where a person has been convicted of an act which is a constituent part of a greater offence, he can not afterward be prosecuted for the greater. In England, on the contrary, the lesser offence is held to be utterly merged and extinguished in the greater, and therefore, while a person is not liable to a prosecution for the minor offence after a trial for the greater, a trial for the lesser is not a bar to a prosecution for the greater. The rule in England is, however, subject to a just exception. If an acquittal for the inferior crime shows that the larger could not have been committed—is in fact a judgment in favor of the accused on a point vital to the new prosecution—then the acquittal has all the force of conclusive evidence against the second charge, and is properly pleadable in bar. For instance, an acquittal for manslaughter is a bar to a prosecution for murder, applied to the same transaction; for it negatives the homicide, which is indispensable to sustain the charge of murder, and of which, indeed, murder is but an aggravated form. 1 Stark. Cr. PL, 322.

The doctrine, urged by the defendant, is not, even in this country, cleared of all difficulties and confusion. But it is unnecessary for us to confirm, refute, or even to explain it. We simply say, that it is not, in any. point of view, applicable to the present case. For it can not justly be claimed, that the theft of which the defendant was convicted, was even a c'onstituent part of the act of breaking with intent to steal, described in the statute and in the information. The principle, therefore, if it exists at all, which makes a conviction for the less offence a bar to a prosecution for the greater, when the latter includes the former, would not aid the defendant.

Nor can it be claimed, that the two prosecutions of the defendant present the spectacle of one unlawful act divided into two, and each made the subject of a separate proceeding. Both in law and in reason, the burglary and the theft were two acts, neither of which entered into the nature or substance of the other.

As most of the cases referred to as authorities, are instances of former acquittals, it is proper to remark, that the same rules apply to ‘cases of former convictions, without exception. The effect of each, on a subsequent prosecution, is the same. Sw. Dig. 1 Green. R., 375. In each pase, the defendant can justly maintain that he has been once in jeopardy for the same offence.

The question arises upon the bill of exceptions, whether a banking-house. is a shop, store or warehouse, within the meaning of this statute.

Whatever might be thought of this suggestion, if it were presented for the first time to the courts of this state, we feel bound by the construction which has long been given to this statute, and in which it may be said that the legislature have silently acquiesced, having .made no attempt to disturb it. This court have gone so far as to decide that the cabin of a ship was a dwelling-house within the meaning of the act, and in the year 183-, the precise question now made was determined against the prisoner by Judge Huntington, holding the superior court for Middlesex county. We do not feel called upon to adopt new rules for the construction of the statute, and sustain the information.

Our advice to the superior court is, that the judgment of the county court be affirmed.

In this opinion, Hinman, J., concurred.

Waite, C. J.

Thus, where an assault and battery has been committed, and several blows given at the same time, although each blow may of itself constitute a substantive criminal offence, yet the public prosecutor can not sustain an information for each blow inflicted. He may, indeed, at his election, charge the offender with the infliction of all the blows, or of any one or more of them, but in the latter case a conviction will bar a prosecution for all the others.

If indeed there be such an interval of time, between any two blows, that they can not be considered as parts of one and the same transaction, nor proved under a single count, then separate informations may be maintained.

It has been holden, by this court, that under our statute, making it a crime for a person to have in his possession a counterfeit bill, knowing it to be such, with intent to pass the same, a person having in his possession two such bills, purporting to have been issued by different banks, can not be convicted of two separate offences, and a conviction for hav-. ing one such will be a bar to a punishment upon a subsequent information for having the other. State v. Benham, 7 Conn. R., 414.

In such case, the possession of both bills might have been charged in the same information, and therefore the crime is indivisible, and will not sustain two separate and distinct informations.

By our law, a person, charged with the commission of a crime, may be convicted of any lesser offence, which is embraced in the charge of the greater, and within the jurisdiction of the court, before which the trial is had. Thus, upon an indictment for a rape, the accused may be convicted of an assault with intent to ravish, and such conviction will be a bar to a subsequent prosecution for the rape. State v. Parmelee, 7 Conn. R., 259.

Whenever, in any criminal transaction, a felonious intent is essential to render it a crime, and without proof of which no conviction can be had, two informations, founded upon the same intent, can not be maintained.

Thus, in the case cited, the intent to ravish was an essential ingredient in the charge for the assault, in order to give the court jurisdiction, and without proof of that intent, neither the charge for the assault, nor the greater one for the rape, could be established, and hence a conviction for one of those offences, is a bar to a conviction for the other.

In the case under consideration, the prisoners were convicted of the crime of theft, in having stolen the bills of the corporation, and in the subsequent information they were charged with having broken into the banking-house, with intent to commit that very theft. The breaking the building, and taking the bills, were both parts of one and the same transaction, and done with the same felonious intent, and without proof of that intent, they must have been acquitted in both cases.

Both parts of that transaction might have been embraced in the same count in the information, and proved under it, and such is the general practice. “ It seems,” says Russell, “ to be the better course, first to lay the intent, and then state the particular felony, if a felony has been committed.” 2 Russell on Crimes, 38.

Under such an information, the prisoners might have been convicted of the whole offence, or of the breaking, or the theft only, and acquitted of the residue of the charge.

It has been said, that the prosecuting attorney may elect to join both offences in the same information, or file separate ones. But in my opinion, the law gives him no power to make two crimes, or one, out of the same transaction, at his pleasure. The law, and not the attorney, must determine that matter. He may indeed elect to prosecute for the whole, or any part, but he can sustain but one information.

Thus, in the case cited from our own reports, of the person having two counterfeit bills in his possession. It was competent to the attorney to file an information against him, for having both bills, or only for having one of them, and having adopted the latter course, he could do nothing in reference to the possession of the other bill.

For these reasons, I am of opinion that the county court, in holding the plea in bar of the defendants in this court insufficient, manifestly erred, and their judgment ought to be reversed.

Judgment affirmed.


source: Caselaw Access Project

author: Waite,- C. J.

license: Public Domain

text:
    Brown vs. Keach.
    A new trial will not be granted in a cause, unless it appears that injustice either was, or might have been, done on the former trial.
    If it appears, from the evidence introduced on the trial of a cause, that the plaintiff is entitled to a verdict, a new trial will not be granted, on the ground that the court refused to instruct the jury as to the legal construction and effect of such evidence.
    In an action on a promissory note, to which the defendant had pleaded the statute of limitations, it was shown that the daughter of the plaintiff, as the agent of the latter, wrote to the defendant a letter, calling his attention to the fact that he was indebted to the plaintiff by note, to which the defendant soon afterward replied, “ Yours, of the 24th, has been received, and in roply, I hardly know what to say; but as you request an answer soon, I will say in return, that I can’t tell you what. I can do at present, but I have been thinking of coming to W. for some time, but will omit it until I hear from you again. I wish you by return of mail, to send me a true copy of all the claims that you hold against me in full dates; that is, I want it word for word, and endorsements, &c., and state where your mother and sister are now living, and I will either see them or write soon.” Held, that such letter of the defendant, under the circumstances, was sufficient to remove the bar.
    Where, in such action, the defendant claimed, as matter of law, that stteh letter did not amount to an acknowledgment of the note as an existing .indebtedness, and that it should not go to the jury as any evidence of a new promise, and the court refused to put any legal construction upon the written evidence, but léft all the evidence in the case to the jury, as relevant to prove an acknowledgment of a debt by the defendant, and a verdict was rendered in favor of the plaintiff; it was held, that as the evidence showed that the plaintiff was entitled to a recovery, it was immaterial whether the verdict of the jury was founded upon their opinion of the evidence, or rendered in obedience to the instruction of the court as to the law of the case, and therefore a new trial ought not to be granted.

      This was an action upon a promissory note, dated December 19, 1842, for the sum of one hundred and seventy-six dollars, payable to the plaintilf, or her order, on demand with interest. The writ was dated April 12, 1854. The defendant pleaded the statute of limitations. The cause was tried at Brooklyn, at the April term, 1855.
    "Upon the trial of the case to the jury, the plaintilf, to prove an acknowledgment of the debt by the defendant, called her daughter, Melissa Brown, who testified that, in the latter part of December, 1851, she, as the agent of her mother and sister, wrote the defendant a letter, (which having been lost could not be produced,) in which she called his attention to the fact, that he owed her mother, her sister, and herself, each, a note; that they all wished payment; that her mother was poor and needy, and very much required the money on her note. That soon afterward, and in the early part of January following, she received from him, in reply, the following letter.
    “ Thompson, January 3,1852.
    “ Yours of the 24th has been received, and in reply, I hardly know what to say; but as you request an answer soon, I will say in return, that I can’t tell you what I can do at present, but I have been thinking of coming to Woonsocket, for some' time, but will omit it, until I hear from you again. I wish you, by return of mail, to send me a true copy of all the claims that you hold against me, in full dates; that is, I want it word for word, and endorsements, &c., and state where your mother and sister are now living, and I will either see them or write soon. Yours, with respect,
    Joseph Keach.”
    The witness further testified, that the note in suit was the only one her mother ever held against the defendant.
    Upon this testimony, the defendant claimed, as matter of law, that the court should construe the written testimony, and decide that the letter did not amount to an acknowledgment of the note, as an existing indebtedness, and that it should not go to the jury, as any evidence of a new promise.

      The court declined to put any legal construction upon the written evidence, but left all the evidence in the case, to the jury, as relevant to prove an acknowledgment of the debt by the defendant.
    The jury, having returned a verdict in favor of the plaintiff, the defendant moved for a new trial, and the case was reserved for the advice of this court.

      Foster and Graves, for the defendant.
    1. The construction of every instrument is matter of law, and not one of fact. Wilcox v. Roath, 12 Conn. R., 580.
    2. The letter, written by the defendant, was not. a new promise, nor evidence of one ; nor that from which a new promise could be implied or inferred.

      J. H. Carpenter, for the plaintiff.
    I. The charge of the judge was correct. The questions in the case were questions of fact and properly submitted to the jury. 2 Greenl. Ev., 357, § 442. Lloyd v. Maund, 2 T. R., 760. DeForest & Son, v. Hunt, 8 Conn. R., 179. Clark v. Sigourney, 17 Conn. R., 511. 1 Sw. Dig., 301, 305. Frost v. Bengough, 8 E. C. L. R., 317. Linsell v. Bonsor, 29 E. C. L. R., 319. Colledge v. Horn, 3 Bing., 119. 11 E. C. L. R., 59.
    II. .If the jury have taken a correct view of the evidence? a new trial will not be granted, though the charge of the judge should be found erroneous. Wilcox v. Roath, 12 Conn. R., 580.
    III. The jury have clearly taken the correct view of the testimony. 2 Stark. Ev., 37. 1 Greenl. Ev., § 197. 2 Greenl. Ev., § 441. East India Co. v. Prince, 21 E. C. L. R., 474. Whitney v. Bigelow, 4 Pick., 110. DeForest & Son v. Hunt, 8 Conn. R., 179. Frost v. Bengough, 8 E. C. L. R., 317.
   Waite,- C. J.

In the case of Wilcox v. Roath, a question arose, whether it was the duty of the court to determine whether a certain letter, written by the defendant, amounted to a ratification of a contract, made by him, while a minor. The judge, who drew up the opinion of the court, after reviewing the different decisions, and practice, upon that subject, waived a determination of the question, as the case could be disposed of upon another ground. 12 Conn. R., 580.'

In a later case, before an English court, the plaintiff read in evidence a letter to the defendant, and his answer thereto, and then called upon the judge to determine, as matter of law, that they were sufficient to remove the bar, created by the statute of limitations. Baron Parke, who presided on the trial, had so much doubt as to his duty upon that subject, that he finally submitted the evidence to the jury, to say whether it was sufficient to remove the bar, and at the same time accompanied that submission, with an expression of his own opinion. Bucket v. Church, 9 C. & P., 209. 38 E. C. L. R., 83.

The more correct rule is laid down in a still later case. Clark v. Sigourney, 17 Conn. R., 517. It is there said, that “ whether promises were made is a question of fact, to be determined by the jury; but what is the construction and effect of them, if made, is a question of law, to decide which is the province of the court.

But, as was said in the case first cited, it is unnecessary for us to decide that question, for the only material enquiry here is, whether it was the duty of the court below to have instructed the jury, as matter of law, that upon the evidence the plaintiff could not recover.

If it was, then the court erred, and a new trial ought to be granted, as the court refused to give that instruction.

But if the evidence shows that the plaintiff was entitled to a recovery, then it is perfectly immaterial, so far as the justice of the case is concerned, whether the verdict of the jury was founded upon their opinion of the evidence, or rendered in obedience to the instruction of the court, as to the law of the case. The result is the same,- as it should be. And this court will never grant a new trial for any irregularity in the proceedings in the court below, unless it can see that injustice either was, or might have been, done on the former trial. Kelsey v. Hanmer, 18 Conn. R., 320.

With respect to the effect of the evidence, the case seems to fall within the principles recognized by this court in DeForest v. Hunt, 8 Conn. R., 179. The letters, in that case, were very much of the same character, as those in the present, and were holden sufficient to remove the bar created by the statute.

And, as in our opinion, the cases are so much alike in principle, that ■ the decision in that case must govern the present, we deem it unnecessary to go into an examination of the numerous other eases upon the subject.

We accordingly advise the superior court, that a new trial - ought to be denied.

In this opinion the other judges, Storrs and Hinman, concurred.

New trial not to be granted.


author: Hinman, J.

text:
    The Hartford Screw Company vs. The Porter Manufacturing Company.
    A declaration—after setting out an indenture, by which the defendants leased ' a tenement for five years to T. and others, and which contained a proviso that a joint stock corporation should be organized by T. and his associates, and should take and assume said tenement, upon the terms and conditions stated in said lease, and assume all the liabilities of the lessees, contained in the lease, and that then the lease should be void as to the lessees, and the lessors would accept said company as their tenants, and look to them only for the rent, and for the fulfilment of all the terms, undertaken by the lessees, exactly as if the lease had been assigned by said T. and others to said company; and the defendants would fulfil to said company all their promises and covenants to the lessees—further alleged, that the contemplated company, who were the plaintiffs, were duly organized, and took possession of said tenement, upon the terms contained in said lease, and assumed all the agreements of the lessees, specified therein; that the defendants accepted the plaintiffs as their ienants, and that thereupon the defendants, by said agreement, became bound, and, in consideration thereof, assumed, and' agreed, that they would do and perform for the plaintiffs all things agreed to be done and performed by said T. and others; and, after a further allegation that the plaintiffs had performed all the agreements that T. and others were bound to perform, specified certain breaches of the agreement, for which damages were claimed. On a demurrer to such declaration, it was held; 1. that the original lease was not set out as a ground of recovery, but to show the terms of the new contract; 2. that such declaration embraced sufficient allegations of a consideration for the undertaking of the defendants; 3. that it was not insufficient, because it contained no formal averment of notice to the defendants, of the organization of said company.
    This was an action on the ease. The declaration, containing but one count, was as follows.
    “ On or about the 21st day of December, A. D. 1848, the said Porter Manufacturing Company, at' and within the said city of Hartford, entered into an agreement with Willis Thrall, J. Seymour Brown, Chauncey Ives, George S. Lincoln & Co., Lyman Stockbridge, John G. Mix, and Gurdon Fox, of said Hartford city, by which the defendants did remise and let, for a valuable consideration, to the said Thrall, Brown, Ives, Lincoln & Co., Stockbridge, Mix, and Fox, certain portions and apartments of a certain building belonging to said Porter Manufacturing Company, and situated in said city of Hartford, on Grove Lane, viz., the whole of the third story of said building, and one-quarter of the basement of the same, to be used as the location of a press, or header, and for storing scrap and other wire, iron and coal, with the following appurtenances and privileges, to wit, the privilege of attaching a belt to the drum in the room above said basement, to operate said press, or header, and also steam power sufficient to propel said press, or header, and steam power, when applied to the machinery of the lessees, to manufacture an average number of six hundred gross of screws a day, said power to be introduced without charge to the lessees, into the said third story by a main drum or wheel, and into whatever part of said story said lessees shall direct, and also to be supplied, (that is, the said power,) for ten hours during every working-day in the year; also with the privilege and agreement, on the part of said lessees, that the lessees, if they desire to manufacture more than an average number of six hundred gross of screws a day, shall be supplied with power sufficient' thereto, by the payment to said lessees of extra rent, at the rate of one hundred dollars per year, for every one hundred gross of screws which they, the said lessees, shall manufacture in addition to the daily average of six hundred gross, provided the lessees shall not exceed one thousand gross in any one day; also the privilege to said lessees of using, provided said company’s steam engine is run, at any and all times, for more than ten hours a day, the power for the extra time of said running, at the rate of rent hereinafter received for the ordinary and stated use of said power and building; also the privilege of taking what quantity of water the lessees may want, from the steam condenser, and conveying the same by a pump to the third story of said building, for the term of five years from the 10th day of January, A. D. 1849, with all the appurtenances of said premises.
    And said company did further, then and there, agree to, and with, the said Thrall, Brown, Ives, Lincoln & Co., Stockbridge, Mix and Fox, that they would build a good and sufficient partition, in and around the stairway and north door of said building, and would enclose and partition off a counting-room, in such place and manner as the lessees should direct, within said demised premises, and that they would, at their own expense, plaster the jambs of the brick wall, adjacent to the windows, smoothly enough to retain a coat of whitewash, and that they would thoroughly whitewash all the brick of the said third story, (that is, the inner walls of the same,) and that they would lay good and convenient walks, and prepare all such modes of access to the building, both.for teams and persons on foot, as might be necessary for the transaction of the said lessees’ business, and that they would provide good and sufficient privies for the use of the male and female operatives, in the employ of said lessees, and so arrange them that the opposite sexes need not come in contact, and that they would construct and put up a windlass or fall, to raise and to lower from said third story, in a safe manner, all the necessary machinery, materials and wares of said lessees ; and said Porter Manufacturing Gompany did also agree that the said lessees should at all times enjoy the privilege of moving their machinery within the demised premises, or of removing at their own expense, any partition within the same, which they may have put up at their own expense, and that if they, the said company, were obliged to remove the headers by reason of any damage’ which they might occasion to said building, they would erect another building suitable for the operation of said headers, without receiving any additional rent, provided that said lessees would relinquish to the company the room in the first story occupied by the headers; also that they would provide, within a convenient distance from the said premises, a well of water, suitable for drinking, for the use of said lessees, and the persons whomever the said lessees employ ; also that said lessees should have the power to determine said lease, at any time within the term of five years, by giving said company six months previous notice of their intention, and by the payment of three hundred dollars to said company, for said privilege. And the said Thrall, Brown, Ives, Lincoln & Co., Stockbridge, Mix and Fox, in consideration of the premises, did then and there covenant and agree, for themselves and their personal representatives, that they would well and truly pay to the said company, quarterly rent for the above described premises, at the rate of one thousand dollars a year, during the full term of their occupation of the same, and that whenever their said occupation should lawfully terminate, that they would peaceably and quietly surrender the said premises to the said company, and leave the same, with the exception of ordinary and necessary wear and tear, in as good and tenantable repair as the said premises were in at the date of the said lessees’ entry; and it was also agreed by and between said parties, that if the said lessees, or a part of them, either alone or in connection with others, succeed in forming and organizing, under the law of the State of Connecticut, a joint stock corporation, to be called the Hartford Screw Company, which, when formed, shall be ready to take and. assume the possession of the aforementioned premises, with the privileges above described, and upon the terms and conditions above specified, and to assume all the liabilities of said lessees, contained in their said lease, that then said lease should be void; and it was also then and there agreed by the parties, that if the said Hartford Screw Company was formed and organized, and fulfilled all the terms, and assumed all the liabilities specified in the foregoing condition, that the lessors would accept the said Hartford Screw Company, under said lease, as their tenants or lessees, and would look to them, and no longer to the individual lessees, for the payment of rent, and the proper discharge of all the liabilities, and fulfilment of all the terms undertaken and incurred by the said lessees, in their said lease, exactly as if said lease had been assigned by the said party of the second part, to the Hartford Screw Company; and the defendants did also agree that they would fulfil to the said Hartford Screw Company, all the promises and covenants made in said instrument to the above-named individual trustees.
    And the plaintiffs further say, that afterward, on or about the 5th day of January, 1849, the said Thrall, Brown, Ives, Mix, Lincoln & Co., Stockbridge and Fox, together with Norman Porter, and Norman Porter, Jr., of New Britain, Edward Goodman, John G. Smith, Elihn Geer, of Hartford, with some other persons, did form and organize, under the laws of Connecticut, a joint stock company, called the Hartford Screw Company, and that said company is still in being, and the plaintiffs in this suit, and ever since have been, and now are doing business in the city of Hartford, and that they, the plaintiffs, did afterward assume the possession of the above-mentioned premises, with the privileges described in said lease, upon the terms and conditions ábove specified, and assumed all the agreements made by the said lessees, in their said agreements, and the defendants thereupon accepted the plaintiffs as their tenants, in the place of [the said Thrall, and the others above-named, and thereupon the defendants, by their said agreement, became bound, and in consideration thereof, assumed and agreed that they would do and perform for the plaintiffs, all things by them agreed to be done and performed to the said Thrall and others, and the plaintiffs say that they have kept and performed all things which the said Thrall and others agreed to keep and perform, and all things that they, by said agreement, were bound to keep and perform; yet that the defendants have not kept and performed all things by them agreed to be kept and- performed, in this, that the defendants have not built the partitions, plastered nor whitewashed the walls, laid walks, prepared modes of access, nor provided privies for the use of the operatives of the plaintiffs, nor put in a windlass, by reason of which the plaintiffs have been put at great expense and inconvenience, in the occupation of said premises, and that by reason thereof they have had great difficulty in procuring help, in their said business, and they have lost much of the time of those in their employ, by their having to go to other places, and suffered much in their health, and other inconvenience, and 'that by reason of the defendants not having fulfilled their said agreements, they have been greatly hindered and obstructed, in carrying on their said-business, and been otherwise greatly injured, all which is to the damage of the plaintiffs,” &e.
    To this declaration, the defendants filed a general demurrer. The court adjudged the declaration sufficient, and thereupon rendered judgment for the plaintiffs. To obtain a reversal of this judgment, the defendants, by motion in error, brought the record before this court.

      Welles and Pardee, in support of the motion.
    I. The contract was made with Thrall and his associates, and can not be assigned; the suit must therefore be brought in the name of the original parties.
    At common law, nirne but parties, or privies to express contracts, can sue thereon. 1 Ch. Pl., 16, 17. Brush v. Curtis, 4 Conn. R., 312. 5 M. & S., 411.
    II. To enable the assignee to sue, in his own name, there must be an express promise made to the assignee to pay the debt, or perform the contract, in consideration of forbearance, or in respect of any other new consideration, and he must declare upon such new promise and consideration. 1 Ch. PL, 15. 1 Saund. R, 210. n. 1. 4 B. & C., 525.
    III. The-declaration is defective in both respects. The promises set out are to Thrall and others; there is ho new consideration stated.
    IV. There is no averment of notice of the formation of the new joint stock company, and of their readiness to assume the liabilities of Thrall and his associates. Such averment is indispensable. Whenever, upon the happening of a fact, the rights and duties of other parties are to be changed, or in any manner waived, notice of the happening of that fact must be given, unless it lies equally within the knowledge of both parties, and the giving of such notice must be averred. 1 Ch. PL, 328-9. Com. Dig., Pleading C., Nos. 73-5. Vin. Abr., “ Notice.” 5. T. R, 621-24. 17 Mass., 229. 1 Day, 186, n. c.
    The omission of averment of notice, when necessary, will be fatal on demurrer, or default. 1 Ch. PI., 329. 1 Day, 186.
    The formation of the new company was wholly within the knowledge of Thrall and his associates; they were parties to the contract as individuals; they were the members of the joint stock company. To the defendants all would appear as before. There were the same parties, and the same possession, and payment of rent.
    The use of the words, “accept the plaintiffs as tenants,” will not help the plaintiffs. Such acceptance might be the mere acceptance of rent from Thrall, the manager, but in what capacity is not shown; and even if the plaintiffs were accepted, and if all the other allegations are true, there would be only appropriate evidence to prove the notice, and can not dispense with the averment of it.
    V. There is no consideration set up, which will support any promise whatever, to the plaintiffs. The pretended consideration is an executed one; from that the law will not imply such a promise as this action seeks to enforce. Smith on Contracts, p. 62, note b, and seq. Brown v. Crump, 6 Taun., 300. Granger v. Collins, 6 M. & W., 458. Hopkins v. Logan, 5 M. & W., 241. Jackson v. Cobbin, 8. M. & W., 790. Roscorla v. Thomas, 43 E. C. L. R., 713.
    The proposition is fully sustained by authorities; that where the consideration is one, from which a promise is by law implied, there no express promise, made in respect of that consideration, after it has been executed, differing from that which by law would be implied, can be inferred. Tindall, Ch. J., in Kaye v. Dutton, 7 M. & G., 807, and the cases cited in Smith on Cont., 63, and notes.
    It is obvious that the consideration stated, even if there be one, would not support any such implied promise as the one declared upon.

      T. C. Perkins and Goodmanj contftU

   Hinman, J.

The defendants, in this action, insist that the declaration is so framed, that no judgment for the plaintiffs can be recovered upon it. It is claimed that no consideration is stated for the promise, and that the promise itself does not appear to have been made to the plaintiffs; but, on the contrary, does appear to have been made to Willis Thrall and certain other persons. It is quite obvious that if either of these claims is well founded, the plaintiffs’ action must fail. Are they well founded ? The declaration sets out the whole of an indenture between the defendants and Thrall and his associates, the substance of which was, that the defendants leased to said Thrall, &c., for the term of five years, a certain tenement in Hartford, at an annual rent of one thousand dollars, to be paid to the defendants, by a lease executed by all the parties to it, and under seal, containing several stipulations, and among them the following: that as Thrall and his associates, who were the lessees, contemplated the formation of a joint stock corporation, to be called the Hartford Screw Company, if the lessees, or a part of them, either alone, or in company with others, should succeed in organizing said company under the laws of the state; and the company, when formed, should take and assume the tenement, with the privileges, and upon the terms and conditions stated in the lease, and should assume all the liabilities of the lessees contained in the lease; then, the lease should be void, and the lessors would accept the said screw company as their tenants, and would look to them only for the rent, and for the fulfilment of all the terms undertaken by the lessees, exactly as if the lease had been assigned by Thrall and others, to the said screw company; and the defendants would fulfil to the screw company all their promises and covenants to the lessees. It is then alleged that the contemplated company was duly formed, and that it assumed the possession of the tenement with the privileges, and upon the terms contained in the lease; and assumed all the agreements of the lessees specified therein. The declaration then alleges, that the defendants accepted the screw company, who are the plaintiffs, as their tenants, in the place of Thrall and others, and then goes on to allege, that “ thereupon the defendants, by their said agreement, became bound, and in consideration thereof, assumed and agreed that they would do, and perform, for the plaintiffs, all things by them agreed to be done and performed to the said Thrall and others; ” and then, after an allegation that the plaintiffs have performed all the agreements that Thrall and others were bound to perform, certain breaches of the agreement by the defendants are specified, for which damages are demanded.

Upon general demurrer, defects of substance only can be taken advantage of. The question therefore is, whether there is enough upon the whole declaration to show a good cause of action. We think there is.

The objections to the declaration are, first, that the contract appears to have been made with Thrall and his associates, and not with the plaintiffs; and, secondly, that there is no consideration stated for any new promise to the plaintiffs. But we think that the original lease is not set out as a ground of recovery in this action. It is stated merely for the purpose of showing, by referring to it, the terms of the new contract with the plaintiffs. The terms of both contracts were the same, though the first only was evidenced by a deed. ■ Being under seal, it was not competent for either party to found an action of assumpsit upon it; and upon the face of it, it contemplated a new contract with the plaintiffs, whenever they should become organized and prepared to make it. The declaration alleges that the new contract was made as contemplated, and' the lease is set out for the purpose of showing what its terms were. We think this the obvious object of the pleader, as appears from the whole frame of the declaration. The terms of the lease were such that it was to become void on the organization of the contemplated company, and its assumption of the liabilities of the lessees; and we presume it was not the intention to sue upon a contract, which had accomplished its purpose, and ceased to be any longer operative.

But it is claimed that no consideration is alleged for the new agreement, as moving from the plaintiffs; and this is relied upon, as showing that the only agreement stated is the one, which was made with Thrall and others: and, in this connection, it is said there is no averment of notice to the defendants of the organization of the plaintiffs as a corpora- ,1 tion. There is, indeed, no formal averment of any such notice having been given. But the organization itself is specifically, and directly, averred, and that they are the plaintiffs in this suit, and that they assumed possession of the leased premises on the-terms and conditions specified in the lease; and then it is alleged that the defendants thereupon accepted the plaintiffs as their tenants in the place of the said Thrall and others. Now the defendants obviously could not accept the plaintiffs as their tenants in the place of Thrall and others, without having had knowledge of their organization, as a joint stock corporation; and when it appears that such an organization was contemplated by the original lease, which was executed by the defendants, and is set out in the declaration, we do not think any reliance ought to be placed on this suggestion, that no notice is alleged of the plaintiffs’ organization as a corporation. It appears to us, moreover, that the allegation that the defendants accepted the plaintiffs as their tenants, &c., in connection with the other allegations, and particularly with the statement of the terms of the original lease, goes far to show that the defendants did make the agreement relied upon by the plaintiffs. It is true this is not such a direct and positive allegation of a promise as, according to the rules of pleading, ought to be made in a declaration. But it may, we think, properly be used for the purpose of pointing the subsequent allegation of a promise and agreement to the plaintiffs, as the party with whom that subsequently alleged agreement was made. Immediately after the allegation that the defendants accepted the plaintiffs as their tenants, &e., that is, accepted them as their tenants upon the terms contemplated in the original lease, it is alleged that the defendants thereupon became bound, by their said agreement, and in consideration thereof, assumed and agreed, &c. The idea is not expressed as clearly as, perhaps, it might be. Still, we think from the whole frame of the sentence, and considering what immediately precedes i. it, that the meaning is, that the defendants, by their said agreement, became bound to assume and promise the plaintiffs to perform to them all the stipulations, which in their said lease they had covenanted to perform to said Thrall and others, and they thereupon, in consideration thereof, did assume, and agree to do for the plaintiffs, all that by their lease they had covenanted to do for Thrall and others. ■ For these reasons, we think the superior court was correct in holding the plaintiff’s declaration to be sufficient in law; and as the motion for a new trial has not been pursued in this court, the plaintiffs are entitled to judgment on the finding of the court.

In this opinion, the other judges, Waite and Storks, concurred.

Judgment affirmed.


author: Waite, C. J.

text:
    Sheldon vs. The South School District in the West Society of Suffield.
    A motion for a new trial will not be granted for an erroneous ruling of the judge upon the circuit, where it is_ apparent 'that the verdict, on a re-trial of the cause, must be the same as on the former trial.
    Where, in the absence of all fraud and all duress, one who has full knowledge of the circumstances attending the demand, voluntarily pays money upon a claim of right, he can not recover it back, although it was paid under protest1 and without a sufficient consideration.
    But this rule does not apply, where the money paid was obtained by the fraud of the person receiving it, or was paid, without' sufficient consideration, to avoid imprisonment, or the seizure or sale of goods.
    The assessors of the town of A., having made a list against 11 the heirs of S.,” a school district, within the town of A., afterward laid a tax for the purpose of building a school-house, and included, in'the rate-bill, a tax upon the list against said heirs. The collector, having levied his warrant upon a portion of the land embraced in said list, sold and conveyed the same, against the protest of the plaintiff, who was the executor and principal devisee of S. to B,., who purchased said land with the money of the plaintiff, to whom he afterward conveyed it.
    In an action of assumpsit against said school-district, it was held, that such money was voluntarily paid by the plaintiff, and that consequently he was not entitled to recover.
    This was an action of assumpsit, containing the common money counts, brought to recover the amount of a school-district tax, laid by the defendants.
    The cause was tried by the jury, at the term of the superior court, holden at Hartford, in January, 1855.
    On the trial, it was proved that Martin Sheldon, a resident of the district, died in 1848, leaving a large real and personal estate, and by his will the plaintiff was appointed his executor, and made the chief devisee and legatee. Shortly after the death of the father, the plaintiff removed from the district to another district in the same town, where he has since resided.
    In 1849, the assessors of the town of Suffield made out a list against “ the heirs of Martin Sheldon, deceased,” including the real and personal estate left by him. In 1851, the defendants laid a tax for the purpose of building and furnishing a school-house, and the committee included in the rate-bill a tax upon the assessment-list, made out by the assessors against the heirs of the deceased.
    The collector levied his warrant upon a portion of the land embraced in the assessment, and, against the protest of the plaintiff, sold the same to one Rose, who purchased with the money, and for the- use of the plaintiff, by a previous arrangement, and a few days afterward, when the collector had deeded the land to him, released the same to the plaintiff.
    The plaintiff claimed to recover, upon the ground that the tax was not laid according to law, and was void, and assigned various reasons in support of his claim. The ruling of the court was adverse to his claim, and a verdict was rendered in favor of the' defendants. He thereupon moved for a new trial, and the case was reserved for the advice of this court.
    A detail of the objections, urged against the validity of the tax, becomes unnecessary, as no opinion upon them was expressed by this court.

      Hwngerford Sf Gone, and Philleo, in support of the motion.

      T, C. Perkins and R. D. Hubbard, contra.
   Waite, C. J.

It is unnecessary for us to consider the several questions made by the plaintiff’s counsel, respecting the legality of the tax imposed by the defendants, for however they may be, the plaintiff, upon the facts, presented in the motion, is not entitled to recover. It would be useless for us to send the case back for another trial, upon an erroneous ruling of the judge on the circuit, when we can see, from the case itself, that the verdict must ultimately be the same as at present, in favor of the defendants.

The plaintiff claims to recover money paid by him through one Rose, as his agent, upon a tax sale of certain lands as the property of the heirs of Martin Sheldon, deceased, upon which sale a deed of the land was made by the collector to Rose, and another given by Rose to the plaintiff

Admitting that the contract for the purchase may be considered as having been made by the plaintiff, through Rose, as his agent, yet the money was voluntarily paid by him, as the purchase price of the land, and there is no pretence whatever, that any facts have come to his knowledge since, respecting the tax, or the sale, of which he was not fully apprised at the time of the purchase.

Now the rule is perfectly well settled, that a person, who voluntarily pays money upon a claim of right, with full knowledge of all the facts in the case, and in the absence of all fraud, and all duress, can not recover it, although there was no sufficient consideration, and the money was paid under protest.

“ The rule of law,” says Dallas, C. J., “is that where money is paid with full knowledge, or with full means of knowledge of the circumstances attending the demand, the party paying is not entitled to recover back such payment, though made without sufficient consideration.” Martin v. Morgan, 1 Brod. and Bing., 289. 5 E. C. L. R., 87.

And Gibbs, J., says, “ I think, where a man demands money of another, as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he. can never recover back the sum he has so voluntarily paid.” Brisbane v. Dacres, 5 Taun., 144. 1 E. C. L. R., 46.

The same doctrine is recognized in Massachusetts. “ A party,” says Shaw, C. J., “ who has paid voluntarily, under a claim of right, shall not afterward recover back the money although he protested at the time against his liability.” Preston v. Boston, 12 Pick., 13.

And our own court has said, speaking of the action of indebitatus assumpsit, “ This action does not lie to recover back money voluntarily paid on a claim, which the party dis» putes; though he pay it, expressly reserving his right to litigate the same.” Buckley v. Stewart, 1 Day, 133.

Numerous other authorities, of the same import, might be cited, if necessary.

But this rule does not apply, where money was obtained by the fraud of the person receiving it, or was paid without sufficient consideration, to avoid imprisonment, or the seizure or sale of goods.

As where a foreigner was fraudulently arrested in England, and paid ¿500 for his release, the court held that he might recover the money, upon the ground, that the arrest was fraudulent, and the money paid to get rid of the pressure. Patterson, J., in that case, said, “ I admit, in general, that money paid under compulsion of law, can not be recovered back, as money had and received. And further, when there is bonafides, and money was paid with full knowledge of the facts, though there be no debt, still it can not be recovered back.” Cadaval v. Collins, 4 Ad. & El., 858. 31 E. C. L. R., 209.

So where a broker who was in possession of goods distrained for rent, which the tenant was anxious should not be sold, and that time should be allowed him to pay the rent, refused to grant the indulgence, unless upon the payment of illegal charges, it was held that payment, under such circumstances, was not voluntary, but was obtained by a species of duress, and the money, so paid, might be recovered. Hills v. Street, 5 Bing., 37. 15 E. C. L. R., 359.

In the case under consideration, there was no fraud on the part of the defendants, or the collector; no mistake as to the facts on the part of the plaintiff, and no payment made to avoid imprisonment, or the seizure or sale of goods. The money was paid, rather to perfect the sale than to prevent it. The case, therefore, falls - within the general rule, and not within any of the exceptions.

It stands on no higher ground than it would, if the plaintiff, when the tax was demanded of him by the collector, had said to him, I know your tax is illegal arid void ; I am under no obligation to pay it, but T shall pay it under protest, and with an intention to sue for, and recover it. All the authorities agree that money, paid under such circumstances, can not be recovered.

But the case of Adam against the Town of Litchfield, has been cited as an authority in support of the plaintiff’s claim. 10 Conn. R., 127. There the collector had levied his warrant upon the plaintiff’s property, sold it, and paid over the proceeds to the town treasurer. The court held that, under such circumstances, the plaintiff could recover upon the familiar principle, that the owner of goods which have been taken and sold by a trespasser, might, on his election, waive the tort; treat the wrong doer, in making the sale, as his agent, and the money received by him, as received for the use of the owner.

The case seems rather to fall within the principle, recognized in the case of the Town of Barkhamsted v. Case, 5 Conn. R., 528. There the agents of the town had sold a portion of the highway to Case, and taken his note, payable to the treasurer of the town. Case afterward brought a bill in chancery to be relieved against the payment of his note, upon the ground that the town had no title to the land, and that his note was given entirely without consideration. But the court said, that “ if there was no fraud and no covenant to secure the title, the purchaser had no remedy for his money, even on failure of title, either at law or in equity.

In the present case, the plaintiff, as he says, through his agent, purchased land of a collector of taxes, received his deed and paid the purchase price. He now, retaining his deed, sues to recover back his money, alleging that the collector had no legal authority to sell. Having paid his money, he can stand upon no higher .ground than the purchaser in the case last cited, who had merely given his note, and if the one is not entitled to relief, we do not see upon what ground the other can obtain it.

But we do not deem it necessary to place the case upon the authority of the one cited, because, in our opinion, it is enough that the plaintiff paid the money which he seeks to recover, voluntarily, upon a claim made, for aught that appears, in good faith, without any fraud, mistake or duress, and upon the execution and delivery of a deed of land to him.

We do not, therefore, advise a new trial.

In this opinion, the other judges, Storrs and Hinman, concurred.

New trial not to be granted.-