text:
    Sherwood against Waller.
    To constitute an ouster, by the entry and possession of another person, within the statute against selling pretended titles, an actual exclusive possession, as owner, is sufficient.
    Therefore, where a school district, in 1817, took possession of a parcel of land, and built a school-house thereon, and occupied it for school purposes until 1845, when, it being destroyed by fire, the district contracted with B for the purchase of the land, received a deed thereof from him, and built a new schoolhouse on the site of the old one, which they ever afterwards occupied exclusively, claiming the right to do so under their deed of purchase; and in 1847, while the district were thus in possession, B conveyed the same land to C ; it was held, that B, at the time of this last conveyance, was “ ousted/’ within the statute.
    Where the agent of the district, in such case, after receiving from B the deed of 1845, kept it, and, contrary to B7s expectations, neglected to pay the stipulated purchase money; it was held, 1. that such conduct of the district by their agent, did not vender their holding any the less an “ouster” of B, within the statute; 2. that the subsequent deed from B to C was not merely a conveyance of any lien B might have for the purchase money unpaid, but an “alienation" within the statute.
    Litchfield,
    July,1850.
    Where it appeared that such deed from B to the district, was in the common form of a conveyance of the fee of the land, but it was expressed to be "for the purpose of erecting a school-house or school-houses for school purposes, and for these purposes only;" it was held, that this deed was a conveyance of the land, and not of some possibility or peculiar interest in reversion.

      Qu. whether in an action qui tam against B, to recover the penalty ofthe statute for alienating the land while ousted of possession, the plaintiff could give in evidence a declaration by B, that he had sold the land and got his pay for it, and not some supposed interest in the land? Litchfield,
    was an action qui tam on the statute prohibiting the sale of lands of which the grantor is ousted of possession. The parcel of land, for the sale of which the action was brought, was one situated in the eleventh school district in the first school society of New-Milford, containing about 18 rods of ground, with a small house standing thereon, in which a school was kept. (The conveyance complained of was al- leged to have been made, by the defendant, to Morris B. Bar- low, on the 20th of May 1847, the defendant being ousted and held out of the possession thereof, by the entry and pos- session of said school district. The
    cause was tried, on the general issue, at Litchfield, August term, 1849. On
    On the trial, the plaintiff gave in evidence a quit-claim deed from the defendant to M. B. Barlow, dated May 20th 1847, purporting to convey to him absolutely, all the grantor’s interest and estate in the piece of land described in the dec- laration. That this deed was duly executed, delivered and recorded, was admitted. The plaintiff then introduced evi- dence to show, that said school district, in 1817, erected a school-house on part of said land, which, in 1845, was de- stroyed by fire; that in May of that year, said district voted to build a new school-house, and for the purpose of procuring a site for it, entered into an agreement with the defendant for the purchase of the land described in the plaintiff’s deed to M. B. Barlow; that in pursuance of such agreement, the defendant, by a deed dated November 17th, 1845, for the consideration of 50 dollars, conveyed said land to said dis- trict, “for the purpose of erecting a school-house, or school- houses for school purposes, and for those purposes only;" that under this deed, which was duly recorded, said district district entered into possession of said land, and caused a new schoolhouse to be erected thereon, which was completed in the fall of that year; and that said district has ever since possessed and occupied said school-house and land as their property, causing all their schools, both in winter and summer, to be kept in said school-house.
    The plaintiff, for the purpose of showing that the defendant had intentionally conveyed said land and school-house to Barlow, and not any supposed interest which he might have therein, introduced a witness, by whom he claimed to have proved, that the defendant, after his deed to Barlow, said, he had sold said land to Barlow, and had got his pay therefor. To the admission of this evidence the defendant objected; but the court admitted it.
    The defendant, for the purpose of showing that the district had acquired no title to any part of said land, by possession, offered testimony by which he claimed to have proved, that when the old school-house was placed upon said land, his father, who then owned it, gave the district permission to occupy it so long as the school-house should stand; that when it was burned down, the interest of the district in the land was extinguished; and that the defendant, who had purchased of his father’s heirs this land, with the lands adjoining, entered into possession thereof, and enclosed it, by a fence. For the purpose of showing, that the district acquired no title from the defendant, by virtue of their deed from him, he claimed to have proved, that after he had executed that deed, and before the new school-house was erected, one Mallory, who was employed to build it, called upon him, to procure a delivery of the deed; that the defendant accordingly went to the land, and handed the deed to the plaintiff, for his examination; that the plaintiff, having examined it, told the defendant, it was satisfactory, and immediately put it in his pocket; that the defendant thereupon immediately demanded of the plaintiff the price agreed upon for the payment of the land, or a return of the deed; that the plaintiff offered to give the defendant a district note for the price, which the defendant refused to take, saying that the plaintiff had no authority to give any such note, and again demanded either the money or a return of the deed; that the plaintiff, notwithstanding, kept the deed, and the purchase price has never been paid; that the defendant then forbade the erection of the house, but it was, nevertheless, erected and completed.
    It was admitted, that the defendant, during these transactions, was a member of said district; and there was no evidence that he ever made any other objection to the possession of said land by the district, than that above stated.
    The defendant thereupon claimed,
    1. That if said district entered into and held possession, under and by virtue of said deed to them, they acquired but a conditional estate in said land, which might be forfeited to the defendant, upon their using said land for other than school purposes; and consequently, that the defendant had such an interest, either legal or equitable, in said land, after the delivery of said deed, that he could legally convey the same, in the manner specified in his deed to Barlow.

    2. That as the district had never paid the stipulated price for said land, he had a lien upon said land therefor, and could legally convey the same, in the manner specified in his deed to Barlow.

    3. That as his deed to the district had never been legally delivered, the retention of it by the plaintiff, in the manner stated by the witnesses as aforesaid, was a fraud upon his rights; and that neither said deed, nor any possession, taken under and by virtue of the same, would preclude him from conveying said land to any other person, in the same manner as if no such possession had been taken ; and he prayed the court so to instruct the jury.
    The court did not so instruct the jury, but did instruct them, 1. That the defendant’s deed to said district did not, upon its face, show such an interest in the defendant, as that, after a delivery of his deed to them, he could convey said land to Barlow, in the manner specified in the deed to the latter.
    2. That although the defendant might have a lien upon the land conveyed to said district, by his deed, for the purchase price, which he could, by a proper instrument, assign to Barlow; yet his deed to Barlow did not purport to convey any such lien, or any debt whatever against said district.
    3. That to entitle the plaintiff to recover in this suit, it was not necessary for him to prove, that said district had acquired a valid title to said land, by deed, or in any other manner; that it was sufficient for him to prove, that, at the time of the execution and delivery of the deed to Barlow, the defendant was ousted of the possession of said land, by the entry and possession of said district; and that, if they found that the defendant had been so ousted, they might find for the plaintiff, although they should be of opinion that the deed to said district had never been legally delivered, but had been illegally retained by the plaintiff, in the manner claimed by the defendant.
    4. That if the jury should find, that at the time of the execution and delivery of the deed to Barlow, the defendant was ousted of the possession of said land and school-house, by the entry and possession of the same, by said district, claiming to hold the same adversely to the defendant, and as their own property; and the defendant having knowledge of such ouster, had intentionally conveyed said land and schoolhouse to Barlow, in the manner mentioned in said deed, and not any supposed interest or lien which he might have in the same; the plaintiff would be entitled to recover; otherwise, they might find a verdict for the defendant.
    The jury returned a verdict in favour of the plaintiff; and thereupon the defendant moved for a new trial. The questions arising on such motion were reserved for the advice of this court.

      J. H. Hubbard, (with whom was Russell,) in support of the motion,
    contended, 1. That to constitute the offence prohibited by the statute, it is not sufficient that the purchaser and seller were out of possession, but there must have been an actual disseisin, by the entry and possession of some other person, under a bona fide claim of right. The possession of a mere intruder-a tort-feasor-is not a disseisin, and is not in law an adverse possession. A deed fraudulently obtained, is not available as the foundation of an adverse possession, so as to avoid a subsequent conveyance by the lawful owner. Livingston v. Peru Iron Company, 9 Wend. 511. Jackson d. Gillet v. Hill, 5 Wend. 532. A person entering even under a bona fide contract to purchase, is not in a position to hold adversely, until he has performed the condition necessary to entitle him to a deed. Ibid. Jackson d. Young & al. v. Camp, 1 Cowen, 605. Jackson d. Ten Eyck & al. v. Frost, 5 Cowen, 346. Jackson d. Hendricks v. Andrews &. al. 7 Wend. 152. Brandt d. Walton v. Ogden, 1 Johns. R. 156. The possession in this case being obtained by fraud, is not in law adverse; and the instruction given by the court to the jury, that it would make no difference whether the deed and the possession were obtained by fraud or not, was therefore erroneous.
    2. That a school district cannot purchase or hold lands, except for school purposes; consequently, they took but a contingent or qualified estate; and the defendant, under whom they claim, had an interest in the premises consistent with their estate, which he might well convey, by a quit-claim deed.
    3. That the defendant had a lien on the land for the purchase price unpaid; and if he had any interest in the land, either equitable or legal, he might convey that interest, without incurring the penalty of the statute.
    4. That an honest attempt, by the releasor, to convey some interest which he supposed he had in the premises, even if he was mistaken, was not the criminal act, which the statute intended to interdict. To convict a man of a crime, he must be brought within the intention, as well as the letter, of the statute.

      Seymour and Sanford, contra,
    after remarking, that under the charge the jury have found, that the defendant was ousted of possession; that he knew it; and that he intentionally conveyed the land and school-house, and not any supposed interest which he might have therein; contended, 1. That the declaration or admission of the defendant, offered by the plaintiff, was properly admitted. In the first place, the defendant’s admission of any fact which the plaintiff is bound to prove, is always admissible. Secondly, the fact that the defendant had sold the land, and not merely some interest in it, or lien on it, was a matter in issue, in this case; and the defendant’s admission, that he had sold the land, and got his pay for it, was therefore admissible.
    2. That the charge was right, on all the points.
    In the first place, the clause in the deed to the district, that the conveyance was “for school purposes only,” had no effect whatever. School districts can never hold land for any other than “school purposes.” Stat. 304. § 41. In regard to all corporations, there is a possibility of a reverter, by breach of implied conditions, or by the dissolution of the corporation; yet before forfeiture and until dissolution, they hold the fee. 1 Sw. Dig. 77. 2 Bla. Com. 109. The benefit of a condition is not assignable. Co. Litt. 214. a. b. 1 Sw. Dig. 93. 4 Kent’s Com. 118. Nor any other contingent interest or possibility. Smith & ux. v. Pendell, 19 Conn. R. 111. The deed to Barlow was an apt instrument for the conveyance of the entire title. Sherwood v. Barlow, 19 Conn. R. 471. 476. Besides, the jury have found, that by this deed, the defendant intended to convey the entire land, and not a supposed interest in or lien upon it.
    Secondly, a lien upon land is a sort of mortgage created by operation of law. It has no existence aside from the debt, and cannot be transferred without the debt. Jackson d. Norton & al. v. Willard, 4 Johns. R. 41. 43. Huntington v. Smith, 4 Conn. R. 235. Runyan v. Mersereau, 11 Johns. R. 534.
    Thirdly, under the charge and upon the conflicting claims of the parties as to the title and possession of the district, the jury might have found, and probably did find, the title in the district, without reference to their title under the defendant’s deed. The district, by their thirty years’ possession, had a prima facie title. La Frombois v. Jackson d. Smith & al. in err. 8 Cowen, 589. 595. Livingston v. Peru Iron Company, 9 Wend. 511. 520. The district might lawfully and safely strengthen their possessory title, by getting the deed from the defendant.
    Fourthly, the question of delivery was immaterial, without reference to the former possession of the district. Whatever Sherwood, the agent,did, the district acted in good faith, and did all that good faith required; and no notice of the defendant’s claim of fraud was ever given to them.
    Fifthly, the district ousted the defendant. The actual, exclusive occupant, claiming the entire title, and acknowledging no subsisting superior title, holds adversely against all the world; and of course, by his entry and possession, ousts every one else. Bryan v. Atwater, 5 Day, 181. 189. Emerson v. Goodwin, 9 Conn. R. 421. 429. Livingston v. Peru Iron Company, 9 Wend. 517. Where there is an actual occupancy-a pedis possessio-under a claim of ownership, the possession is, at least to the extent of such occupancy, adverse. Livingston v. Peru Iron Company, ubi supra. Ken-nebeck Purchase v. Springer, 4 Mass. R. 416, Here, the district was in the actual occupation of the whole. But if not, the holding of the district under the deed, though retained by Sherwood, as the defendant claimed, was an adverse holding.
   Ellsworth, J.

In this case, we discover no error for which a new trial should be granted.

The facts stated in the declaration are found to be true; so that we assume, that the defendant conveyed the premises in question to Morris B. Barlow, while neither he nor Barlow was in possession, but there was an adverse holding, with his knowledge.

We do not stop to enquire as to the defendant’s admission after giving his deed, that he sold the land to Barlow, and not some supposed interest in the land; for this objection has not been much pressed upon the court.

The error, if any there be, is in the charge of the judge to the jury.

The plaintiff claimed to have proved the ouster of the defendant, and possession by the eleventh school district, before and on the 20th of May 1847, at which time the defendant deeded the premises to Barlow. Much evidence was introduced to establish this fact. The plaintiff offered to prove, that as early as 1817, the school district took possession of the land, built a school-house upon it, and ever thereafter occupied, until 1845, when the building was destroyed by fire; and that soon after, in the same year, the district contracted with the defendant for a purchase of the lot, and then received a deed, which was duly recorded; that they built a new school-house upon the site of the old one, which they have ever since exclusively occupied. These facts are not denied by the defendant; but he claims,that when the first schoolhouse was burnt, he took possession himself of the land, and enclosed it with his adjoining land, and forbade the district erecting a new school-house. He however admits, the district did not regard his prohibition, but proceeded, at once, to erect and finish a new house, and to occupy the same for a district school; and he denies that this possession constituted an ouster, because he says, he had proved to the jury, that when he delivered his said deed to the district, he expected to be paid the consideration money, which he then demanded, and he refused to take the note of the district which was offered him in payment; for he questioned the authority of the agent to bind the district. The money not being paid, he demanded a return of the deed. The district refused to give it up, went immediately into possession, completed their school-house, and have used it as already stated.

The defendant now claims, that the aforesaid facts, if true, prove, that the title and possession of the district were fraudulent and inoperative, and that the possession of the district under their deed of 1845, however adverse or exclusive in fact, could not be held to be so in law, against the defendant, and was, therefore, no ouster or disseisin.

To this claim of the defendant we cannot give our assent. Whatever may be said as to the title of the district, clear it is, their possession, (and we have to do only with that,) is not necessarily any the less a disseisin, because the title is in dispute. The district possessed the premises, as owners; they had a real possession, under a claim of right, as distinguished from a possession under a pretence or trick. Such a possession, if continued for fifteen years, would make a perfect title in the occupant, as was held by this court, in French v. Pierce, 8 Conn. R. 439. The error into which the counsel for the defence have fallen, is, not properly distinguishing between a title, and an actual bona fide possession.

We do not say, that even a specific claim of right was necessary. An actual, exclusive possession, as owner, is enough to constitute a disseisin; for such holding is not under any person, but is independent of all persons whatever. However, in this case, there was a claim of right, by the district, under their deed of purchase; and probably they would controvert the defendant’s lien, or at all events, that they obtained possession, by any unfair practice. The facts show they were in possession by themselves, and had been, some thirty years.

Another claim of the defendant, is, that under the deed of the defendant to the district, they had only a conditional estate, which might be forfeited, by the district’s putting the land to any other use than for a school-house; and that this possibility remaining in the defendant, might be conveyed to Barlow, and that this was the interest intended to be conveyed, by the deed of the 20th of May 1847.

We do not decide whether the defendant had, or had not, any interest in the premises after his deed to the district, which he could convey to Barlow. We only say, that the deed in question does not purport to convey any such interest. The deed is in common form, as a primary conveyance of the fee of the land, and not of some possibility or peculiar interest in reversion. The deed is prima facie a conveyance of the land; and the defendant introduced no evidence to qualify the natural import of the deed.

The same may be said of the claim that the deed to Barlow, was a conveyance only of the defendant’s lien for the purchase money. No debt was assigned to Barlow. Nothing is said in the deed itself, nor proved aliunde, about the conveyance of a lien for money.

We do not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.


source: Caselaw Access Project

author: J. This Hinman, J.

license: Public Domain

text:
    Bartholomew against Bushnell.
    Where there is a warranty of soundness, and the action is brought for a breach thereof, proof of the warranty is indispensable, and it is immaterial whether the defendant knew of the unsoundness, or not.
    But if the action be brought, not for a breach of warranty, but for fraud in the sale, by representations which the defendant knew to be false, such knowledge is an essential ingredient in the fraud, and must be proved.
    Therefore, where, on the trial of an action on the case, alleging, that the defendant sold two horses to the plaintiff, by fraudulently and falsely warranting them to be sound, when in fact they were blind in both their eyes, which was unknown to the plaintiff, but well known to the defendant, after the plaintiff had introduced evidence to prove, that the defendant, at the time of the sale, made certain representations respecting the soundness of the horses, which he knew to be false, the defendant claimed to have proved, that the represent ations made by him, were accompanied by a distinct refusal to warrant the horses ; but the court instructed the jury, that if the ho ses were unsound, and the defendant made representations calculated and intended to deceive the plaintiff, and he was thereby deceived, the defendant was precluded from saying there was no warranty; it was held, that this was a misdirection, as proof of fraud, without a warranty, would not support the declaration. [The chief justice and one judge dissenting.]
    Litchfield,
    July, 1850.
    This was an action on the case. The declaration alleged, that on the 4th day of April 1847, the plaintiff, at the special instance and request of the defendant, bargained with him to buy of him two horses for one grey horse, of the value of 200 dollars, and 195 dollars in cash; and the defendant, by fraudulently and falsely warranting his said two horses to be sound and good, every way, sold his said two horses to the plaintiff for said grey horse and 195 dollars in money, delivered and paid to the defendant, by the plaintiff for the same; whereas in truth, said two horses, at the time of said sale, and fraudulent warranty of the same to the plaintiff, were unsteady, restif and ungovernable in the harness, and were blind in both their eyes, and have from that time hitherto so continued; all which was unknown to the plaintiff, but was well known to the defendant; and the defendant, by means of the premises, falsely and fraudulently deceived him, the plaintiff, in the sale of said two horses; and thereby the said two horses became of no use to the plaintiff; to his damage, &c.
    The cause was tried, on the general issue, at Litchfield, February term, 1850.
    On the trial, the plaintiff claimed to have proved, that the defendant, at the time of the sale of the two horses mentioned in the declaration, made to the plaintiff certain false and fraudulent representations, calculated and intended, by the defendant, to deceive the plaintiff, in regard to the soundness of the horses; from which the law would imply a false and fraudulent warranty that they were sound. He also claimed to have proved, that the horses were unsound, at the time of sale, and that such unsoundness was well known to the defendant, but was wholly unknown to the plaintiff; whereby the plaintiff was deceived and defrauded.
    The defendant claimed to have proved, that no express warranty of the horses was made; and that the representations claimed by the plaintiff to be false and fraudulent, were accompanied by a distinct refusal by the defendant, to warrant the horses to correspond with those representations. And the defendant prayed the court to instruct the jury, that if they should find, that no express warranty of the horses was made, and that the representations claimed by the plaintiff to be false and fraudulent, were accompanied by a distinct refusal of the defendant, to warrant the horses to correspond with those representations, they should return a verdict in favour of the defendant.
    The court did not charge the jury as requested by the defendant, but did charge them, that if, at the time of the sale, the horses were unsound, and if the defendant knew they were unsound, and yet made representations calculated and intended to deceive the plaintiff, by concealing their unsoundness; and if the plaintiff was in fact deceived thereby; the defendant would be precluded from saying, that there was no warranty, although he said, at the time, he would not warrant the horses.
    The jury returned a verdict in favour of the plaintiff, stating in it, that they found for the plaintiff to recover, as his actual damages, independent of his costs and trouble in prosecuting his suit, the sum of 127 dollars; but if the law was so, that he was entitled to any thing for such costs and trouble, then they found for him to recover of the defendant, the sum of 200 dollars damages, and his taxable costs.
    The defendant thereupon moved for a new trial; and the questions of law were reserved for the advice of this court.

      Woodruff and Peet, in support of the motion,
    contended, 1. That the charge was erroneous. The declaration contains but one count, and that is for a fraudulent and false warranty. Now, admitting that an action in this form lies, in a case of false and fraudulent representations, unaccompanied by a refusal to warrant, on the ground that the law will, in such case, imply a warranty; yet such implication will not be made, in case of an express refusal to warrant, but the plaintiff must bring his action for fraud. This action cannot be sustained. It cannot be sustained on a contract of warranty; for there is no such contract. Nor on a false and fraudulent warranty, as a tort; for however the assertions might be regarded as false and fraudulent declarations, (which might make defendant liable in an action for fraud,) they can, with no propriety, be called false and fraudulent warranties.
    2. That if judgment is to be rendered for the plaintiff, it should be for the actual damage only; which is found to be 127 dollars. In actions for tort, the damages must be the legal and natural consequences of the injury; and extra costs are not recoverable as special damages. 1 Chitt. Plead. 349. In this case, the rule must be the difference between the value of the horses, at the time of the sale, if they had been as represented, and their value with the defects complained of. Cary v. Greeman, 4 Hill, 625. See also Towers v. Barrett, 1 Term R. 136. Caswell v. Coare, 1 Taun. 566. Stiles v. White & al. 11 Metc. 356.

      J. H. Hubbard and G. H. Hollister, contra,
    contended, 1. That the charge was unexceptionable. A man cannot shield himself from the consequences of his fraud and deception, by declaring that he will not be liable on a contract of warranty. In this case, the gist of the action is the fraud and dishonesty of the defendant, by means of which the plaintiff has been swindled out of 250 dollars; and it would be a disgrace to the law, if the defendant were allowed to protect himself from liability, by a declaration that he would not warrant, made at the very time when he was committing the fraud. West v. Anderson, 9 Conn. R. 107. Baglehole v. Walters, 3 Campb. 154, Chitt. Cont. 456. Oneida Manufacturing Society v. Lawrence & al., 4 Cowen, 440.
    2. That the jury, in estimating the damages, had a right to take into consideration the trouble and expense of the plaintiff, in prosecuting his suit. In this way only, can the plaintiff be indemnified for the wrongful conduct of the defendant. The case of Linsley v. Bushnell, 15 Conn. R. 226. 236. has settled the rule in this state. See also Merrills v. Tariff Manufacturing Company, 10 Conn. R. 384. Waite,
   J. This

is an action founded upon a warranty, as to the soundness of a pair of horses, sold by the defendant to the plaintiff. The declaration is in tort, in the usual form, except that it contains an averment that the defendant knew Litchfield, the horses to be unsound, which has generally been omitted, as unnecessary especially since the decision in the case of Williamson v. Allison, 2 East's R. 446.

Such was formerly the usual mode of declaring; but of late the practice has been more general to declare in assump-sit. Still the plaintiff has his election, either to declare in tort or in assumpsit for a breach of a contract of warranty. The former mode will be adopted, when he wishes to join in the declaration other counts founded upon the fraud of the defendant; and the latter, when he wishes to insert the money counts, and other counts appropriate to the action of as-sumpsit.

On the trial of this cause, the plaintiff introduced evidence to prove, that the defendant, at the time of the sale, made certain representations respecting the soundness of the horses, which he knew to be false. The defendant claimed, that they were accompanied by a distinct refusal to warrant the horses; and requested the court to instruct the jury, that if there was no express warranty, the plaintiff could not recover.

The jury, however, were not so instructed, but were told, that if, at the time of the sale, the horses were unsound, and the defendant knowing it, made representations calculated and intended to deceive the plaintiff, by concealing the unsoundness, and the plaintiff was thereby deceived, the defendant was precluded from saying there was no warranty. The charge seems to proceed upon the ground that proof of fraud, without evidence proving a warranty, would support the declaration. A majority of the court are of opinion that this position is not supported by the authorities.

The distinction between a warranty that a personal chattel is sound, and a fraud in the sale of it, is broad and manifest.

If a man sell a horse to another, and expressly warrant him to be sound, the contract is broken, if the horse prove otherwise. The purchaser, in such case, relies upon the contract; and it is immaterial to him, whether the vendor did, or did not, know of the unsoundness of the horse. In either case, he is entitled to recover all the damages, which he has sustained, by reason of the breach of that contract. “A warranty” says Lord Mansfield, “extends to all faults, known and unknown, to the seller.” Stuart v. Wilkins, 1 Doug. 20.

But if the vendor say to the purchaser, “I do not know whether the horse is, or is not, sound, and therefore will not warrant him; all I can say is, that I have long owned him, and know of no unsoundness:” here manifestly is no warranty; and if the vendor spoke the truth, no fraud.

But if the vendee can show, that the horse was unsound, and the vendor knew it, at the time of the sale, and that in consequence of the false representations he had made, the purchaser had been defrauded, the vendor would be liable, not for a breach of a contract of warranty, for he made no such contract, but for making representations which he knew to be false. In such case, the guilty knowledge of the vendor would constitute an essential ingredient in the fraud; and in an action against him, should be both alleged and proved.

To entitle the vendee to recover, under such circumstances, his action must be founded, not upon a breach of a contract of warranty, but upon the fraud practiced by the vendor; or at least, there should be a count adapted to a charge of that character.

This distinction is not only consonant to reason, but has the support of numerous decisions. A leading case upon this subject is that of Williamson v. Allison, already cited. There the action was case, founded upon a warranty of some claret, and the declaration, in form, was almost identical with the present. On the part of the defendant, it was contended, that the plaintiff was not entitled to recover, inasmuch as there was no proof of the scienter, as laid in the declaration. But the court held, that it was sufficient for the plaintiff to prove the warranty itself, and the breach of it; and that the averment of the scienter was an immaterial averment, and need not be proved.

Ever since that decision, it has been considered as an elementary principle in law, that in an action founded upon a warranty of the soundness of a personal chattel, whether the declaration be, in form, ex delicto or ex contractu, it is unnecessary to aver or prove, that the vendor knew the article to be different from what it was warranted to be. And in the most approved forms no such averment is made. 2 Chitt. Plead. 279.

And in a subsequent case, of the same kind, founded upon a warranty of some sheep, alleged to have been made by two defendants, the plaintiff proved the warranty to have been made by one of them, but there was no evidence affecting the other; whereupon the judge directed a non-suit. Upon an application to set aside the non-suit, it was claimed, that the action was founded on the tort; that torts are in their nature several; and that in actions of tort, one defendant may be acquitted, and the others found guilty. Lord Ellenborough, in delivering judgment, said, “ this is unquestionably true ; but still it is not sufficient to decide the present question. The declaration alleges the deceit to have been effected, by means of a warranty, made by both the defendants, in the course of a joint sale by them both of sheep, their joint property. The joint contract, thus described, is the foundation of the joint warranty laid in the declaration, and essential to its legal existence and validity; and it is a rule of law, that the proof of the contract must correspond with the description of it, in all material respects.” And the court held, that “ in whatever action, be the same debt, assumpsit, or tort, the allegation of a contract becomes necessary, it must be proved as laid, in all material respects;” and that, in the case then under consideration, the allegation of warranty was material, and could not be rejected as surplusage. Weall v. King & al. 12 East, 452.

The same doctrine has been recognized by this court, and the authority of that case sanctioned. Walcott v. Canfield & al. 3 Conn. R. 194.

The ruling of the judge on the circuit, seems in direct conflict with these decisions. He told the jury, in substance, that it was enough for the plaintiff to prove a fraud in the sale of the horses, without proving an express warranty-or, in other words, that proof of fraud would dispense with proof of the warranty. In the cases cited, the warranty was deemed a material allegation, and one that must not only be proved, but must be proved substantially as alleged.

And such is unquestionably the true doctrine. The declaration states, that by means of a false warranty, the plaintiff was deceived in the purchase of the horses. There is no averment that any false representation or assertion was made, aside from what is contained in the warranty. Now, if we strike out the averment respecting the warranty, we destroy the very foundation of the action; and there will be nothing left to sustain it. In this respect, the averment is materially different from that respecting the scienter. That, as we have seen, may be entirely rejected as surplusage, and still a good declaration will remain.

It is however said, that there might have been a warranty in this case, although the defendant said he would not warrant, It is undoubtedly true, that no particular form of words is required to constitute a warranty respecting a personal chattel. Salmon v. Ward, 2 Car. & Payne, 211. (12 E. C. L. 94.) And had the judge submitted the question to the jury to say, from the evidence, whether, in point of fact, the defendant had not made the warranty, as set forth in the declaration, notwithstanding the assertion that he would not warrant, we are not prepared to say, that he would have erred. Such question would have been a question of fact, peculiarly within the province of the jury. But the difficulty is, he did not so leave the question, but informed the jury, that under certain circumstances, proof of such contract was unnecessary.

Again, it is said, that the defendant is liable for his fraud, although he made no warranty. And this is also true. But here the difficulty again is, that the declaration is not adapted to the case. It should have been founded upon the false representations, which he made, and not upon a warranty, which, for aught that appears, he never made.

Had the plaintiff declared in assumpsit, instead of case upon the warranty, it would hardly be claimed, that the action could be supported, by merely proving a fraud in the sale, Indeed, this precise point has been so decided, by this court. Dean v. Mason, 4 Conn. R. 428. That was an action of assumpsit upon a warranty respecting the quality of some deer skins. The plaintiff failed to prove an express warranty; and the question was, whether he could recover, either upon the ground of fraud, or an implied warranty; and the court held, that he could not. Hosmer, Ch. J. in delivering the opinion of ihe court, said, that “ according to the most approved precedents, it was an action on the contract of warranty, and nothing more and he held the evidence of fraud inadmissible. The remarks of Van Ness, J. in Evertson v. Miles, 6 Johns. R. 138. were cited with approbation. “ When the plaintiff does not go for a breach of contract, but grounds his action on deceit and fraud in the sale, the fraud must be averred and charged as a substantive allegation. To admit proof of it, without such averment would be going wide of the issue, and taking the party by surprise.” And Chapman, J., who differed from the other members of the court, only upon the subject of an implied warranty, said, “ the principles adopted by the court, in deciding that fraud in a sale will not support a count on an express warranty, (I mean where there is no implied one.) I fully concur in. The form of the action should be adapted to the nature of the injury. The defendant, in an action on the warranty, is not informed of the nature of the plaintiff’s claim, and of course, cannot be prepared to make his de-fence.”

This case conclusively shows, that in the case under consideration, the plaintiff cannot recover, without proof of an express warranty ; and had the declaration been in assump-sit. evidence of fraud on the part of the defendant in the sale of the horses, would have been inadmissible, and have furnished no ground for a recovery.

In the opinion of a majority of this court, the same reasoning, and the same rule, apply, when the declaration is in tort, and is founded solely upon a breach of a contract of warranty. We therefore advise a new trial.

2. Another question has been made, as to the amount of damages which the plaintiff may recover. And we are of opinion, that as the action was brought to recover damages for the mere breach of a contract, he is entitled only to such damages as he has sustained, by reason of such breach, without reference to his costs and expenses in prosecuting his suit.

Storrs and Ellsworth, Js., were of the same opinion.

Hinman, J.

One of the first general principles which the law teaches, is, that every man promises to do that which, by law, it is his duty to do. This principle lies at the very foundation of the law of contracts, and bears up the vast class of cases arising upon implied promises; and, very often, by construing words of equivocal import, in conformity to its spirit, raises a liability as upon an express promise, when the party making it supposes, that, by some ingenuity in the form of expression, he may be able to evade liability. Every lawyer knows, too, that in very many of these cases, if not in most of them, the same facts which will sustain an action on the promise, will also sustain an action ex delicto, for the wrong. Carriers warrant t he transportation and delivery of goods entrusted to them ; attorneys, surgeons, and mechanics, contract to discharge their duty with skill and integrity ; and vendors warrant their title and right to sell; and for any neglect or unskillfulness by the former classes, or for any deceit by the latter, a party who has been injured, may. sustain an action, either in tort, for the wrong, or in contract, on the promise, at his election ; and so in the great mass of cases which arise from the negligence of bailees generally. These commonplace suggestions are only made because, if I understand the ground of decision in this case, it is, at least, in part, in conse quence of some supposed incongruity in sustaining an action for a breach of warranty only, by the same facts which show the defendant to have been guilty of a fraud.

It has been said, that in order to make a contract, the minds of the parties must meet. This may be true, in a technical, legal sense; but is not always true, as a matter of fact, as is evident by reference to the large class of promises, arising from legal liabilities, and from many cases of express contract.

I do not doubt, that a contract of warranty should have been proved in this case, or what was tantamount to it; but I differ with the court, in regard to whether such a contract was proved ; and I deny that there is any departure from principle, in raising such a contract, from fraudulent representations.

In 3 Bl. Com. 166. it is laid down, “ that if a vendor know the goods to be unsound, and has used any art to disguise them, or if they are in any shape different from what he represents them to be to the buyer, this artifice shall he equivalent to an express warranty, and the vendor is answerable for their goodness.”

So, too, it is said, in 1 Selw. N. P. tit. Deceit, p. 647. “ If an innkeeper sell wine as sound and good, which he knows to be corrupt, although there be not an express warranty, yet an action on the case in nature of deceit will lie, because,” says this author, “ it is a warranty in law.” The-same doctrine runs through the text books, and the authorities in support of it, are well collected in 2 Stephen' N. P. 1280.

In Madina v. Stoughton, 1 Salk. 210. the principle is stated to be, that where one, having possession of a personal chattel, sells it, affirming it to be his, this amounts to a warranty, for which an action lies. This principle has ever been recognized as law, and has since been extended, so that the assertion of title is now held to be a warranty, whether the vendor is in possession or otherwise. Pasley v. Freeman, 3 Term. R. 51. 57.

Indeed, representations of the quality of an article sold, if they are any thing more than mere commendation of it, generally amount to a warranty. In 2 Steph. Com. 127. it is said, “ that mere representation may amount to a warranty; and it will be a question for a jury, whether, under the circumstances, it was so understood by the parties ; or whether, on the other hand, it was a mere commendation by the seller, of his own wares. And in the leading case of Parkinson v. Lee, 2 East, 314. counsel and the court, throughout the trial, recognized the right of the plaintiff to recover, if there was either an express warranty, or fraud in the seller of the hops. Lawrence, J. cites with approbation what is said in 1 Roll. Abr. 90. that if a merchant sell cloth to another, knowing it to be badly fulled, an action lies, because it is a warranty in law.

And why should not deceitful representations be held to be warranties in law ? Can the party making them be permitted to say, that he cheated, and, therefore, he did not warrant? And, if not, what is a warranty, or promise, on such a subject as this, but a representation, on which a party relies, and, as in this case, which was made for the purpose of inducing him to rely on it ?

It is said to be a sound principle, to construe the words of a promise, in the sense in which the party making it, believed the other party to have accepted it. The rule is well stated, by judge Swift: “ Any representation made by the seller, which he has reason to believe will be relied on, will be an express warranty.” 1 Sw. Dig. 382. This rule was fully recognized, in Wood v. Smith, 4 Car. & Pa. 45. (19 E. C. L. 267.) which is a case, as it seems to me, that should govern this, it it is law.

The defendant’s counsel have relied upon,the declaration of die defendant, at the time of sale, that he would not warrant the horses. It has not, however, been suggested, that this remark has influenced the result to which the court has come. The case last cited, with that of West v. Anderson, 9 Conn. R. 107. it is believed, are considered by us all, as conclusively against the defendant on the point. He cannot, in this way, destroy the effect of his false representation : to allow him to do so, would indeed be “ as disgraceful to the law as such conduct would be to him.” Indeed, the case of West v. Anderson would seem to be a direct authority in fa-vour of the course taken in the court below, on the principal point in the case. It does not, I am aware, directly appear from the report, that it was, like this, an action for the breach of a false or deceitful warranty ; yet I infer from the rule of damages adopted, that such was the fact. Suppose in an action of assumpsit, for the avails of property stolen and sold, would it avail the defendant, that he had refused to pay, or to agree to pay ?

It is supposed, that the principle, that, in actions of this sort, the scienter need not be alleged or proved, (2 East, 445.) has mainly influenced the decision. No doubt this shows, that the gist of the action is the warranty broken. But what it has to do with the manner of proving the warranty, is not, to me, so obvious. Nor am I able to see, that the cases which show there is no implied warranty against secret defects arising from the payment of a merchantable price, where the sale is a fair one, have any thing to do with the question. If, as remarked by Best, C. J. a warranty is raised, by the sale of a horse for a particular purpose, that the animal shall answer the purpose indicated, it is because it results from the nature of the transaction, that the parties expected the animal would answer such purpose. Upon the same principle, a contract is raised in the sale of manufactured articles, that they shall be reasonably fit for the purpose for which they are ordered. Laing v. Fidgeon, 6 Taun. 108. (1 E. C. L. 827.) Jones v. Bright, 5 Bing. 533. (15 E. C. L. 529.) On the same ground, one who professes to be a mechanic, is liable for any want of skill in his employment. Brown v. Edgington, 2 Man. & Gran. 279. (40 E. C. L. 371.)

If it be said, that affirmations and representations, at the time of sale, do not amount to a warranty, unless so intended and received ; and that the court, in this case, did not submit this question to the jury ; the answer is, it was for the defendant to show they were not so intended ; the general rule being, that such representations do amount to a warranty. Besides, the court was not asked to submit any question of the sort to the jury. The defendant chose rather to stand upon his naked declaration, that he would not warrant, as conclusive, in law, upon the question of intention. If, as I suppose we all agree, he was wrong in this, I do not see what other course the court below could have taken ; and to grant a new trial for this error, if it be one, is to grant it for an error into which the court was led, by the course taken by the defendant’s counsel. Tne plaintiff, having proved certain false representations in regard to the soundness of the horses, from which he claimed, the law would raise a warranty ;and also, that the defendant, at the time, knew them to be unsound, rested. The defendant, as the motion shows, neither denied making the representations, nor the effect of them, as a warranty ; but insisted merely, that, as they were accompanied by a declaration, that he would not warrant, they could not, in law, amount to a warranty ; and so he requested the court to charge the jury. Had he asked that the whole evidence be submitted to the jury, for them to find, whether there was a warranty, or whether the representations were intended as mere commendation by the seller, no doubt his request would have been granted. If then, the plaintiff has obtained a verdict, on proof of fraud merely, it is because the defendant did not choose to risk the question of warranty with the jury.

In the view I have taken of this case, I have not thought it necessary to consider at all the nature of this action. The declaration is in the form generally adopted by the best pleaders, in all cases where the object is to recover for the breach of a warranty in the sale of personal chattels.

But although it is an action on a warranty, yet it is for a deceitful and fraudulent warranty, sometimes called in the books, an action on the case in tort, for the breach of a false warranty. Lord Ellenborough says, “ the warranty is the thing which deceives the buyer, who relies on it.” Fraud is always alleged, and, where it can be, universally is proved. Indeed, it is not many years since it was supposed to be necessary to prove it. 2 East, 446. A warranty, then, is not ex vi termini, or technically, a matter of contract merely ; but is often treated as an instrument of fraud. In the text books, it is treated of under the title “ Deceit;" and has always been considered the appropriate remedy, for the breach of a warranty, proved by evidence of fraudulent and deceitful representations.

For these reasons, I am of opinion, there was no error in the decision of the court below, and do not advise a new trial.

In this opinion, Church, Ch. J. concurred.

New trial to be granted.


author: Waite, J.

text:
    Church against Mansfield.
    In order to render a master liable for a trespass committed by his servant, it is necessary to show, that the acts constituting such trespass, were done while the servant was acting under the authority of the master.
    -If the master was ignorant of such acts, no presumption of his having author- , ized them will arise from their having been done for his benefit, and from his / silence regarding them,
    r Therefore, where A employed B to make coal on A's land, and transport it, with A'S teams and carts, to A's furnace, for his benefit; and C brought trespass against A, for B’s unnecessarily making roads on Os land and passing thereon, with teams and carts, to A's furnace ; on the trial, there was no evidence, that A authorized the acts complained of, or knew that B had committed, or intended to commit, them, unless this might be inferred from the facts above stated; and the court instructed the jury, that if B had done these S acts, under these circumstances, the presumption was, that they were done ; by the authority and under the direction of A; it was held, that this was a misdirection, for which a new trial should be granted.
    This was an action of trespass, quare clausum fregit; tried at Litchfield, at the February term, 1850.

      Litchfield,

    July, 1850.
    There were several counts in the declaration. The second was for breaking and entering upon the plaintiff’s landsv and cutting down large quantities of wood and timber.
    Upon the trial of the cause, to the jury, the plaintiff, in support of the second count, offered evidence to prove, that the defendant employed servants to cut wood, and convert it into coal upon his land, adjoining the plaintiff’s, and that the servants cut wood, made coal, and made divers roads upon the plaintiff’s land ; and with the defendant’s teams and carts, transported the coal over these roads to the defendant’s furnace, for his benefit.
    There was no evidence that the defendant had ever authorized the acts complained of, or knew that the persons employed by him had committed, or intended to commit, them, unless the same might be inferred from the fact that he had employed a man, by the name of Dean, to cut wood upon his land, and convert it into coal, and then deliver it at his furnace ; and from the fact that the roads were cut, and the coal transported to the furnace, with his teams and carts.
    The defendant claimed, that if the acts complained of were done by Vean and the persons employed by him, without his knowledge and consent, he was not liable; and requested the court so to instruct the jury.
    But the court instructed them, that if they should find, that the defendant employed Dean to cut and convert into coal wood upon his own land, and then deliver the coal at his furnace ; and Dean, for the purpose of transporting the coal to the furnace, had cut and made the roads on the plaintiff’s land, and transported the coal over the same, with the defendant’s teams and carts, and delivered the coal at the furnace, for the defendant’s benefit; the presumption was, that the acts of Dean were done by authority and direction of the defendant, unless he showed, that he had forbidden Dean from going upon the plaintiff’s land, and doing the acts complained of.
    The jury returned a verdict in favour of the plaintiff; and the defendant moved for a new trial. The case was thereupon reserved for the advice of this court.

      J. H. Hubbard and Peet, in support of the motion,
    contended, 1. That if a servant commits a trespass, without the knowledge, direction, or consent of the master, the latter is not liable. McManus v. Cricketl, 1 East, 106. 1 Sw. Dig. 69. 2 Rolle’s Abr. 553. 2 Selw. N. P. 1080. 3 Stark-Ev. 1446. Wilson v. Peverly, 2 N. Damp. 11. 54S.
    2. That a servant can, by no unauthorised and unsanctioned act of his, raise a presumption against the master; and so the court should have charged the jury. The master, in such case, is no more liable to such a presumption, than a stranger; for he is a stranger to the trespass.
    3. That the charge was decidedly erroneous, in instructing the jury, that it was incumbent on the defendant to show, that he forbade Dean to go upon the plaintiff’s land and commit the trespasses complained of. How could the defendant know what trespasses the defendant intended to commit, so as to be able to forbid him, under this charge ? The record shows, that there was no evidence other than the presumption referred to, that the defendant knew of the acts complained of. His non-interference, therefore, furnished no presumption against him.

      G. C. Woodruff and Granger, contra,
    contended, That the defendant was liable for the trespasses committed by his servant, Dean, while in the defendant’s employment, and while conducting the business of such employment. In support of this proposition, they urged the following considerations. First, masters are liable for the torts committed by their servants, in all cases where the servant is acting by the direction and command of the master. If the tort complained of is committed with the knowledge and consent of the master, and for his benefit, he is liable. Reeve’s Dom, Rel. 256, 7. Secondly, whenever a master permits his servant, in the course of his business, to do an injury, he is considered, with reference to his liability, as having ordered it done. Ibid. Thirdly, whatever is done by the servant within the scope of his general authority, is certainly done by the master. Reeve’s Dom. Rel. 257. 1 Sw, Dig. 67, 8. I Bla. Com. 431, 2. Fourthly, whatever the duty of an agent requires him to do in the business of his employer, must be presumed to be done with the employer’s knowledge, and by his direction. Ex parte Machel, 1 Rose, 447. Ham. Dig. 560. pl. 7. Fifthly, in this case, it was the duty of Dean, under his contract with the defendant, to make roads for the transportation of the coal. Hence the presumption is, that the defendant directed him to make such roads. Sixthly, entire justice has been done, by the verdict; and the court, in the exercise of its discretion, will not disturb it.
   Waite, J.

A master is responsible for the tortious acts of his servant, when committed in the execution of his orders. But in order to render him liable for a trespass, committed by the servant, it is necessary to show, that the acts were done while the servant was acting under the authority of the master. Thus, if a servant, employed to drive his master’s carriage, so negligently and unskillfully drive it, as to injure the person or property of another, the master will be liable because in driving the carriage, the servant was acting in the execution of the orders of his master. But if he were to leave his carriage, and seize the horse of another, whose carriage obstructed his passage along the highway, and thereby occasion an injury, his master would not be liable ; because, in that matter, he was not acting in the employment of his master. Lamb v. Palk, 9 C. & P. 629. (38 E. C. L 261.)

So too, if a man send his horse to the shop of a blacksmith, to be shod, and the servant of the latter, so carelessly and unskillfully perform the work as to lame the horse, the master will be liable, whether he had knowledge of the manner in which the work was performed, or not, because the injury was produced while the servant was acting in the employment of the master. But if, while the horse is standing at the door, the servant, without the knowledge of the master, beat the horse, and thereby injure him, the servant alone will be responsible for his acts.

In the present case, the defendant is charged with the commission of trespasses. The evidence showed, that they were not committed by him personally, but by persons in his employment. To render him liable, therefore, it must be shown, I that the commission of the trespasses was in the execution of'j his order, or with his assent and approbation.

But it was conceded, that he never authorized the commission, or had any knowledge of it, unless it might be inferred from the employment of the servants in making coal, and with his teams and carts transporting it to his furnace.

But there is nothing in the case necessarily connecting that employment with the trespasses complained of. The wood was to be cut, and the coal made, upon the defendant’s own land ; and it does not appear, that the coal could not have been carried directly to the defendant’s furnace, without crossing the plaintiff’s land. For aught that appears, the trespasses were entirely voluntary on the part of the workmen, and wholly unconnected with their employment by the defendant.

No presumption, therefore, fairly arises from that employment, that the defendant ever authorized or directed his workmen to cross the plaintiff’s land, or commit any other trespasses thereon. Nor can any just inference be drawn against him, by reason of his omission to forbid the acts, when it is shown that he had no knowledge that the workmen had committed, or intended to commit, them,

Had it appeared that they were done for his benefit and with his knowledge, then his assent might be implied from his silence. But when it is shown, that he had no such knowledge, his silence cannot operate against him.

As the jury may have been misled, by the instruction given to them, we think a new trial must be granted.

In this opinion the other Judges concurred, except Church, Ch. J., who, being related to one of the parties, gave no opinion.

New trial to be granted.


author: Hinman, J.

text:
    Darrow against Langdon.
    Where the declaration, in an action on the statute against evasive transfers of bank stock, alleged, that the defendant, an inhabitant of the town of to defraud that town, and to prevent certain shares of bank stock owned by him, from being assessed therein, on a certain day, transferred to H, an inhabitant of the town of F, 35 shares of the capital stock of one bank, 81 shares of the capital stock of another bank, and 16 shares of the capital stock of another bank; it was held, 1. that the declaration was not bad for duplicity ; 2. nor because it did not embrace an offence within the statute.

      Litchfield,

    July, 1850.
    By the phrase ‘‘ ratable value,” as used in that statute, is not meant the percentage at which the stock goes into the grand levy-i.e. six per cent. of its value-but the whole amount of the stock at its actual value.
    This was an action of debt, brought to the superior court, by Titus H. Darrow, as treasurer of the town of Plymouth, against Edward Langdon, an inhabitant of that town, on the statute against transfers of bank stock with intent to evade the provisions of the tax law. There were three counts in the declaration.
    In the second, the plaintiff alleged, that the defendant, previous to the first day of October 1847, and on or about the 25th day of September 1847, fraudulently and unlawfully transferred to Simeon Hart, of the town of Farmington, thirty-five shares of the capital stock of the Hartford Bank, of the value of 116 dollars, each; also eighty-one shares of the capital stock of the Exchange Bank, of the value of 56 dollars, each; and sixteen shares of the capital stock of the Phoenix Bank, of the value of 116 dollars, each ; of all which shares of stock the defendant was then the owner; that said transfer was made with intent to evade the provisions of the act entitled “ An act for the assessment of taxes,” and to deceive and defraud the town of Plymouth, and to prevent said stock from being assessed therein ; that the defendant then was, and ever since has been, a settled inhabitant of said town of Plymouth, and liable to be assessed as such; that said shares of stock were of banks in the city of Hartford, in this state ; and that by reason of the fraudulent transfer so made by the defendant, no part of said stock was assessed in the town of Plymouth for the year 1847. The sum forfeited, being one per cent. of the ratable value of the stock so transferred, was averred to be 110 dollars.
    The defendant demurred specially to the declaration, assigning for cause of demurrer, first, duplicity ; and secondly, want of jurisdiction in the superior court.
    The following statement of facts was agreed to by the parties, as belonging to the case. The defendant, on and before the 29th day of September 1847, was the owner, in his own right, of the shares of bank stock mentioned in the declaration. The market value, at that time, of the shares of the Phoenix Bank, was 1856 dollars; of the Exchange Bank, 4180 dollars ; and of the Hartford Bank, 4066 dollars. The defendant, on said 29th of September, in pursuance of an arrangement with Simeon Hart, of Farmington, transferred all of said shares to him, to be held by him in the following manner, viz. the stock of the Hartford Bank, as trustee of Prudence E. Langdon, wife of the defendant; the stock of the Phoenix Bank, as trustee of Ellen M. Langdon, a minor daughter of the defendant, described in the transfer as of Farmington; and the stock of the Exchange Bank, as trustee of Edward Langdon, (the defendant himself,) described in the transfer as of Farmington. These transfers were all made for the purpose of removing'said bank stock from liability to taxation in Plymouth, for many years the place of the defendant’s residence, and making it taxable in Farming-ton, the place of said Hart's residence. The taxes in Far-mington had been, for two years preceding the transfer, considerably less than in Plymouth. The stock has ever since been assessed in Farmington, as trust property of said Hart, and regular taxes paid thereon in that town. All the dividends on said stock have been taken, from time to time, by the defendant, directly or indirectly; and the taxes on said stock have, in like manner, directly or indirectly, been paid by him.
    It was also agreed, that the deposition of Simeon Hart, should be taken as part of the statement of facts in the case. This deponent stated substantially as follows : That Edward Langdon, of Plymouth, previous to October 1847, transferred to me sundry shares of bank stock in the Phoenix, Hartford and Exchange Banks, in the city of Hartford. I understood Mr. Langdon felt himself aggrieved, by the inequality of the taxation in Plymouth-that there were others whose property did not pay in proportion to what he had to pay. He said, he was willing to bear his share of all the burdens of taxation ; but he thought they were multiplying the expenses of the town more than was necessary, in constructing new roads, and, he might have said, in other ways. This conversation was had, at the time of the transfer of the stock, or at the time he told me he was going to make the transfer. There was no other reason given for the transfers, as I recollect. I have never drawn the dividends on the stock thus transferred ; but I think I have given an order to Mr. Langdon for that purpose. I paid the taxes on the stock on the list of 1847. I paid the taxes; but Mr. Langdon has refunded the money, or furnished the money to pay the taxes with.
    The questions of law arising on the demurrer and on the above statement of facts, were reserved for the advice of this court.

      Hooker and G. H. Hollister, for the defendant,
    on the demurrer and statement of facts, contended, 1. That the declaration was bad for duplicity, as it alleges three distinct causes of action. The stock being in three different banks, the transfer must have been made, by three different acts, at three different places, at three different times. The subject matters must also have been different; and even the parties were different, as there were different cestui que, trusts. Bates v. Coe, 10 Conn. R. 280. 292, 3. Isham v. Morgan, 9 Conn. R. 374. 378. Cornell v. Todd, 2 Denio, 130.
    2. That the cause of action was not within the jurisdiction of the superior court; “ one per cent, of the ratable value,” making less than seventy dollars on the whole amount of the stock transferred. Ratable means the sum at which property goes into the grand levy. Thus, the ratable value of 10,000 dollars, is 600 dollars; one per cent. of which is 6 dollars. Stat. p. 606. § 19.-p. 607. § 22.-p. 605. § 18.-p. 602. § 4.-p. 610. § 35. See also Stat. ed. 1808. p. 426. § 1.-p. 518. § 2 -p. 357. § 3. State v. Woodruff, 2 Day, 504. State v. Doane, 2 Root, 451. Brown v. Breed, Id. 523.
    3. That the facts in the case do not constitute the fraudulent transfer of stock intended by the statute ; the object of the statute being to put a stop to the practice, then prevalent. of making transfers to fictitious persons, whereby the stock escaped from taxation. This was fraudulent. But there was no fraud in making the stock taxable in Farming-ton instead of Plymouth.

      Seymour and H. B. Graves, for the plaintiff,
    contended, 1. That the declaration was not bad for duplicity. It sets up but one transfer of stock, and complains of but one violation of the statute. The act of transfer was indivisible. It was done on the same day, for the same object, and in pursuance of one arrangement.
    2. That the cause of action was within the jurisdiction of the court. This appears, first, from the face of the declaration ; which alleges, that “the defendant lias forfeited, for said offence, a sum equal to one per cent. of the ratable value of said stock, amounting to 110 dollars.” Secondly, from the import of the statute expression, “ ratable value which means the value at which the property is assessed, or is liable to be assessed, in the list.
    3. That the object of the statute was, to prevent the precise wrong attempted, by the defendant, in this case. The heavy taxes in some of the cities and towns, drove the stock, under colourable assignments, into the names of friends and relatives residing in other towns, where the taxes were lighter. This was the mischief which the legislature intended to prevent. The case before the court is within the spirit and the letter of the statute.
   Hinman, J.

There is appended to the record in this case, a statement of facts, together with certain evidence agreed to be taken as part of the statement, for the purpose, it is said, of having the court decide the question of law thereon. It is also agreed, that the court may consider the question, in con-nexion with the questions presented by the demurrer; and at the close of the statement, it appears, that the question submitted is, whether the facts stated constitute the evasive transfer of stock intended by the statute, on which the action is founded. This is irregular in point of form ; and the evidence agreed to, is of a character which depends, for its effect, upon inferences which a jury might draw from it; but which it is not usual for this court to do. Under these circumstances, we shall only consider the questions which are raised by the demurrer.

The defendant demurs specially to the declaration ; and the first point made is, that the counts are all bad for duplicity ; and, if not all, that the second and third counts are clearly liable to this objection. We think the counts are substantially alike, in this respect; but will consider the question as applicable to the second count; it being conceded, that the others are unexceptionable, if that is good.

This count alleges, that the defendant, previous to the 1st day of October 1847, and, on or about, the 25th day of September 1847, fraudulently, wickedly, and unlawfully, transferred to Simeon Hart, of the town of Farmington, thirty-five shares of the capital stock of the Hartford Bank, of the value of 116 dollars each; and also eighty-one shares of the capital stock of the Exchange Bank, of the value of 56 dollars each ; and also sixteen shares of the capital stock of the Phoenix Bank, of the value of 116 dollars each ; of all which said shares of stock, the defendant was the owner ; that said transfer was made with the intent to evade the provisions of an act entitled, ‘‘ An act for the assessment of taxes,” and to deceive and defraud the town of Plymouth, and prevent said stock from being assessed therein; that the defendant then was, and ever since has been, a settled inhabitant of said town, and liable to be assessed as such; and that said shares of stock were of banks in the city of Hartford, in this state.

There is no duplicity in the form of these allegations. The averment is, that the stocks of these several banks were all transferred, on the same day, to the same person, with the same design ; and all done by the defendant. The amount of stock in each of the three banks, is stated separately, and its separate value is given; but this does not make the declaration double. It is very common in an action of trover or trespass for different articles, to give the value of each separately ; and if the word “ also,” should be inserted between each article, we presume no one would contend, that it would make a declaration in trespass double, if the taking was alleged to be at the same time.

But, it is claimed, that, as the stock was in three different banks, it. necessarily required three separate acts to transfer it; and although it is alleged to have been done at the same time, yet that it could not, in fact, have been so done; and the averment, of necessity, amounts to an allegation of three separate and distinct causes of action.

It is obvious, that unless the court can see that it is impossible to make a transfer of stock in two or more banks at the same time, this objection must fail. But is there any such impossibility ? Is there a distinction in this respect between bank stock and other kinds of property ? We know of nothing in the nature of the property itself, which should create such a distinction. We had supposed, that any number of choses in action might, like other property, be conveyed by one act. Two or more notes or bonds may be assigned at the same time, without any difficulty ; and though it might be necessary to indorse them separately, that would hardly be claimed as making the transfers separate acts for every purpose.

The defendant supposes, that these different stocks can only be transferred, on the books of the several banks respectively ; and that it would be necessary to go to each banking-house, in order to effect the transfer. If he is right in this, we do not see, that it would necessarily make the three transfers separate acts, so far as the evasion of taxation is concerned. There are many single acts, as the law views them, which are made up of a combination of separate acts, each distinct in itself, when considered alone. This is always the case, where a man takes possession, and carries away a great variety of articles ; as in the case of an officer’s attaching all the goods in a store. If, then, the several transfers of this stock, were all made on the same day, pursuant to the same arrangement, by the same person, and to the same, and all with the same design, as is alleged in this declaration, we see no objection to treating them all, as one act, for the purposes of this suit.

But, whether the charters of these banks, or their by-laws, require the transfer of stock to be made only on their books, we do not know. It is very probable that they do so; but it has not been suggested, that their charters have been made public acts; and, if they are not, we cannot notice them, on this demurrer.

2. It is claimed, that the forfeiture sued for, appears upon the declaration to be less than seventy dollars ; and, therefore, that the superior court has not jurisdiction of the cause. This depends upon the meaning of the words, “ ratable value,” as used in the statute on which the action is founded. That statute provides, “ that if any owner or owners of any share or shares of the capital stock of any bank in this state, shall transfer such share or shares to any other person or persons, with the intent of evading the provisions of the act to which this is an addition, such owner or owners shall forfeit and pay to the treasurer of the town in which he, she or they reside, a sum equal to one per cent, of the ratable value of the share or shares of stock so transferred.” Acts of 1843. p. 43. Revised Stat. 606. § 19.

The phrase “ ratable value ” as here used, is claimed to mean, the per centage at which the stock goes into the grand levy ; that is to say, six per cent, of its actual value ; and instances are referred to, where these or similar words, in our statutes, and other books, are supposed to have this meaning ; as, in the case of a former qualification for voting, where our old statute speaks of persons having a freehold estate rated at nine dollars. No doubt instances of this sort may be found ; and so, the word rate is frequently used, as synonymous with tax, and often, as the public valuation on which the tax is laid ; and what it means in a particular instance, must depend upon its connexion as applied to the subject matter. In this instance, to give the word ratable the meaning contended for, would make the statute an inducement to transfer stock, rather than the imposition of a penalty for attempting to avoid taxation. This could not have been the intention of the legislature. But the more obvious and natural meaning of the words, as they stand connected, without reference to any supposed intention of the legislature, we think, is, the actual value of the stock. The words are, “ one per cent. of the ratable value of the share or shares of stock so transferred.” How is a share of stock rated, if not at its actual value ? It is set in the list at six per cent. of its value ; but that value is ascertained, by an assessment or appraisal; and this is the same thing as rating it; and hence ratable value, is the appraised or assessed value.

We think, therefore, that the demurrer is not well taken ; and the superior court is advised to render judgment for the plaintiff.

In this opinion the other Judges concurred.

Judgment for plaintiff.


text:
    Tallmadge against Grannis:
    Litchfield,
    July, 1850.
    in ERROR.
    Where an action is brought merely for the recovery of damages done to the real estate of the wife, during the coverture, the husband may sue alone, or the wife may be joined in the suit.
    Therefore, where the husband alone brought an action of trespass for entering upon land which he possessed in right of his wife, and digging up and carrying away the soil; it was held, that the action was sustainable.
    The original action was trespass, brought by Grannis against Tallmadge, before a justice of the peace, and from thence removed, by appeal, to the county court.
    In the declaration, it was averred, that the plaintiff was lawfully possessed of a certain tract of land ; and that the defendant, with force and arms, entered upon the same, and with spades, shovels and hoes, dug up the ground and soil, and, with wagons and carts, carried off the same, out of the possession of the plaintiff.
    Upon the trial of the cause, to the jury, in the county court, the defendant offered evidence to prove, that the plaintiff went into possession of the land described in the declaration, under a deed in fee to the plaintiff’s wife, and held possession in right of his wife, and not otherwise ; and that the injury complained of was of a permanent nature, and consisted in digging up and carrying away the soil; and thereupon he requested the court to instruct the jury, that the plaintiff’s wife ought to have been joined in the action, and that it could not be maintained by the husband alone.
    But the court instructed the jury, that this was a case in which the husband might sue alone, without joining his wife.
    The plaintiff having obtained a verdict, the defendant filed a bill of exceptions, and thereupon brought a writ of error in the superior court; which was reserved for the advice of this court.

      Seymour, for the plaintiff in error,
    contended, 1. That in actions for permanent injuries to the wife’s real estate, the husband and wife must join, and the husband cannot sue alone. This rule of law is supported by principle and authority. First, by principle; because her interest cannot otherwise be protected. A suit by the husband alone, if permitted, would vest in him rights which belong to her, and ought to be protected in her. Secondly, on authority. 1 Sw. Dig. 36. & seq. Reeve’s Dom. Rel. 133. Weller & ux. & al. v. Baker, 2 Wils. 414. 423, 4. [case of the Dippers al Tunbridge Wells,] Clapp, admr. v. Stoughton, 10 Pick. 463. 470. Cushing & ux. v. Adams, 18 Pick. 110. Allen & ux. v. Kingsbury, 16 Pick. 235.
    2. That this case is within the rule. The injury complained of was of a permanent nature, and consisted in digging up and carrying away the soil. On these facts they were instructed, that the husband might sue alone, without any reference to the nature of the injury-whether permanent or temporary.

      Harrison and G. H. Hollister, for the defendant in error,
    contended, That the husband need not join the wife in an action of trespass for an injury to her land. 1 Sw. Dig. 37. Allen & ux. v. Kingsbury, 16 Pick. 235. Clapp, admr. v. Stough-ton, 10 Pick. 469. Cushing & ux. v. Adams, 18 Pick. 110. 1 Bla. Com. 362. 1 Chitt. Plead. 74. In legal contemplation, the possession of this land is in the husband. Watson & ux. v. Watson, 10 Conn. R. 77. 92. Bradstreet v. Pratt, 17 Wend. 44. 46. Eaton v. Whitaker, 18 Conn. R. 222. 228. The action is for an injury to the husband's possession ; and the judgment recovered belongs solely to him.
   Waite, J.

The rule upon this subject, as settled, by numerous decisions, is, that where the action is merely for the recovery of damages done to the real property of the wife, during the coverture, the husband may sue alone, or his wife may be joined ; her interest, in the latter case, being stated in the declaration. 1 Chitt. Plead. 75. and the cases there cited. Allen & ux. v. Kingsbury, 16 Pick. 235. Clapp v. Stoughton, 10 Pick. 463. Cushing & ux. v. Adams, 18 Pick. 110. Com. Dig. tit. Baron and Feme, X.

If the husband survive the wife, he may sustain an action of trespass for an injury done to her land, during the cover-ture ; and if she survive, the action will survive to her. Com. Dig. tit. Baron and Feme, 2 A.

But where the demand is for the removal of personal property, as corn or grass, when severed from the land, there the husband cannot join his wife, because the entire interest in the personalty is vested in him.

The instruction given to the jury, by the county court, was correct, and consequently, there is no error in the judgment complained of; and so we advise the superior court.

In this opinion the other Judges concurred.

Judgment affirmed.


author: Ellsworth, J. Church, Ch. J.,

text:
    The town of Bethlem against The town of Roxbury.
    Where a bastard was born in the state of New York, in the year 1811, of a mother having a settlement in this state; and in 1814, the mother removed, with such bastard child, into this state, where she has since remained, without having, at any time, lost her original settlement; it was held, 1. that such bastard child had a settlement by birth, in the state of New-York ; 2. that on his coming into this state, he did not take the settlement of his mother. [The chief justice dissenting.]
    In the absence of any statute regulation, the acquisition of a settlement in one state, puts an end to a prior one of the same person in another state.
    This case came before the superior court, by a submission of the parties under the statute of 1848 ; (Stat, 109, 110. § 211.) and was there reserved for the advice of this court. The case agreed upon was as follows.

      Esther A. Lucas was born in Roxbury, in this state, in the year ; and was a settled inhabitant of that town. She removed into the state of New-York, in the year 1810, and cohabited there with Dean Bishop, as her husband, to whom she was never legally married, for the reason that he had a wife then living in Connecticut; and during her residence in the state of New-York, she had an illegitimate son, by the name of Sheldon Bishop, born in the town of Stamford, in the state of New-York, in the year 1811; she then residing in said Stamford, with her reputed husband. But said Esther
      A. did not then, or since, gain any settlement in the state of New-York, nor in any other place in this state, or elsewhere. She continued thus to reside in the state of New-York, until the year 1814, and had divers other children, while so residing in that state, all of whom are the reputed children of said Dean Bishop. In 1814, she, with her son Sheldon and other children, and her reputed husband, removed into the town of Salisbury, in this state ; and continued to reside there, for about four years ; and then returned to the state of New-York, with her son Sheldon and other children and reputed husband ; and since that time, they have all resided in the states of New-York, Connecticut and Massachusetts. Sheldon Bishop afterwards, in the town of Bethlem, intermarried with Angeline Boutor, an inhabitant of the state of Connecticut; and they have five children, two of whom were born in Salisbury, Conn., to wit, Sheldon G. and Milan G. The remaining three were born, as is supposed, in the state of Massachusetts.

      Litchfield,

    July, 1850.
    On the 17th day of November, 1847, these five children came into the town of Bethlem, from the town of Salisbury, in a suffering condition, and have ever since required, and received, support from the town of Bethlem. The town of Roxbury was duly notified of the condition of said children.
    The parties, and the court, and the counsel, are to have full liberty to make use of the statutes and reports of the states of New-York and Massachusetts, to ascertain the law of those states, or either of them.
    Upon the foregoing facts it is submitted, whether the town of Bethlem is entitled to recover from the town of Roxbury for the support of said paupers, or either of them. And if the above point is decided in favour of the town of Bethlem against the town of Roxbury, the amount to be recovered is to be settled, by the court, upon evidence, unless the parties can agree on the amount.

      Seymour and G. C. Woodruff, for the plaintiffs,
    contended, That Sheldon Bishop, the father of the paupers, had his settlement in Roxbury. The case shews, that his mother’s settlement was there; and that she never lost that settlement. Sheldon was born in the state of New-York. When three years of age, he removed, with his mother, to Salisbury, in this state. While they remained there, her settlement in Roxbury continued. Now, whether by the law of New-York he would have been treated as having a settlement there, or not, is immaterial; because on her return to this state with him, her settlement in Roxbury was communicated to him by parentage, which supersedes a settlement by birth. New-town v. Stratford, 3 Conn. R. 600. Oxford v. Bethany, 19 Conn. R. 229. Woodstock v. Hooker, 6 Conn. R. 35. Dan-bury v. New-Haven, 5 Conn. R. 584. New-Haven v. New-town, 12 Conn. R. 105. Newtown v. Fairfield, 18 Conn. R. 350.

      Orion, contra,
    contended, 1. That Sheldon Bishop, being a bastard, born in the state of New-York, had a settlement there by birth. Wynkoop v. Overseers of the Poor, 3 Johns. R. 15. Delavergne v. Noxon, 14 Johns. R. 333.
    2. That having a settlement by birth in New-York, and never having gained one in his own right in this state, his place of settlement was not changed, by his removing into this state.
    3. That the paupers, being the legitimate children of Sheldon Bishop, take his settlement, by parentage.
   Ellsworth, J.

The paupers in question are the legitimate children of Sheldon Bishop, and have never had a settlement in this state, in their own right. Their settlement will follow that of their father. Their father was born in Stamford, in the state of New-York, of Esther A. Lucas, an unmarried woman, then living in said town of Stamford; but she had never gained a settlement in that state, and had never lost her settlement by birth, which she had in the town of Rox-bury, in this state.

In the argument of the case, the counsel for both parties have proceeded upon the ground, that in 1811, when Sheldon Bishop was born, the law of New-York was, as to the settlement of a bastard, born in that state, and especially of a mother having no settlement in that state, the same as the common law, viz., that a bastard is settled where born. Several adjudications to this effect were cited from their books, and their correctness was not questioned. No point was made by the counsel but upon this assumption ; so that we have had no occasion to inquire, when, if ever, they have changed the common law, or what construction has been put upon any of their statutes, if they have any, touching the question.

We say then, the bastard child did not take the settlement of its mother, nor did the child, born there, take the settlement of the mother in Connecticut. Had the child been legitimate, it would have been otherwise. This precise question was do adjudged in Wynkoop v. Overseers of Poor, 3 Johns. R. 16. See likewise the other cases cited at the bar. Hence it follows, that Sheldon, when born, was settled in Stamford; and having that settlement, he had no other, at the time of his birth; for he could not have two settlements, one in New-York, and one in Connecticut, at the same time. Within these states, the acquisition of a new settlement in the same or another state, puts an end to a prior one, unless there be some statutory provision to the contrary, as was decided in Middletown v. Lyme, 5 Coon. R. 95. where a settlement in this state was lost, by acquiring a new settlement in New-Hampshire.

So it has been repeatedly held, on the circuit, before and since that case. If a woman settled in Connecticut, marries a man settled in New-York, she loses her settlement here, absolutely ; and so if she acquired a settlement there, in any way, she must re-acquire one here, or she is, if poor, a foreign pauper. The same is true of an illegitimate child. If it is settled by birth in New-York, and comes here, it comes with a settlement, and can be treated like any inhabitant of New-York. And because our law declares that an illegitimate child does not take a settlement by birth ; it has no application where the contrary is true.

It has been urged, that this bastard child, though born in New-York, was born of an inhabitant of Roxbury, and therefore took the mother's settlement in that place. This would be true, had the child been legitimate, as then, it would have had no settlement by birth in Stamford; but being illegitimate, the law of New-York gave it a settlement where born, and having one settlement, it did not then have another; i.e. one by birth in New-York, and one by parentage in Connecticut. This distinction was taken by this court, in Woodstock v. Hooker, 6 Conn. R. 36. where a bastard born in Massachusetts, of a person settled in Woodstock, was held to take the mother’s settlement in Connecticut, because by the statute of Massachusetts, the bastard gained no settlement in Massachusetts by birth.

It has been further said, that at all events, when Sheldvn Bishop returned to Connecticut, the law of Connecticut took effect, and settled him with his mother in Roxbury. For it is said, this would have been the case, if he had been born in Connecticut; and so if the mother should acquire a new settlement, it would be imparted to a minor child ; and therefore her existing settlement in Roxbury should become his, as soon as he comes into the state. But why this? The child comes into Connecticut having a settlement in New-York. When does he throw off that settlement ? He took it by birth, when parentage existed, and in spite of parentage. So long as he lived in New-York, he certainly had no settlement in Connecticut,-not even according to our own law. How then, by passing the line, is the settlement changed ; or is he now settled in Connecticut, ab initio, by parentage ? Had he lived with his mother in Connecticut, he would have taken a new settlement, had she acquired one. But she acquired none ; and no case can be found which has gone beyond the acquisition of a new settlement by the mother.

Our conclusion, therefore, is, that these children have no settlement in the town of Roxbury, but took the settlement of their father in Stamford, where he was born, and has never-gained another settlement.

We advise the superior court, that judgment be rendered for the defendants.

In this opinion Waite, Storrs and Hinman, Js., concurred.

Church, Ch. J.,

dissented, remarking to the following effect.

The decision of this case, if I understand it, is predicated entirely upon the assumption that when Sheldon Bishop, the father of the paupers in question, was born, the law of the state of New-York was so, that a bastard child was legally settled in the town wherein he was born, and not in the place of its mother’s settlement. Such was not proved not admitted to have been the law of that state, as I believe. The\ only adjudged case relied upon to prove such to have been the law, was Delavergne v. Noxon, 14 Johns. R. 333. ; but what the court is reported to have said in that case, was, in the subsequent case of Canajoharrie v. Johnson, 17 Johns. R. 41., conceded to have been a mistake ; and that it was so is certain, for in the statutes of the state of New-York, published in the year 1802, I find it expressly enacted, that, “Every bastard shall be deemed and adjudged settled in the city or town of the last legal settlement of its mother.” This law was in force in 1811, when Sheldon Bishop, the bastard, was born. The law, therefore, of the state of New-York, not being in conflict with our own laws on the subject of the settlement of illegitimate children, at any rate, not proved to be so, our law should furnish the rule of decision. Robinson v. Dauchy, 3 Barb. Sup. Ct. R. 20.

We were referred, on the argument, to be sure, to what was said by Kent, Ch. J., in the case of Wynkoop v. The Overseers of New-York, 3 Johns. R. 15. But that distinguished judge cannot be understood, I think, to have meant, in face of the statute above recited, that the law of the state of New-York did not recognize a bastard’s settlement by parentage, as recognized in this state ; but only, that, as the mother had no settlement there, the courts in that state, in a bastardy prosecution, would not regard either a foreign settlement or the laws of another state, but would treat the bastard as settled where born, pro hac vice, so as to enable that town or city, to procure an order of filiation upon the putative father. Unless this was so, there could be no order of filiation at all, and no remedy at all. If then, the law of this state is to be our rule of judgment, or if the law of the state of New-York, where the bastard was born, was not in conflict with it, I am sure that the decision of this court, in the case of Woodstock v. Hooker, 6. Conn. R. 35. is decisive of this. It was there holden, that a bastard born in Massachusetts, of a mother having a settlement in this state, takes the settlement of the mother.

But if the law of the state of New-York on this subject was, as it was assumed to have been, still I am persuaded, that when the mother of Sheldon Bishop returned, with her illegitimate child, into this state, he became settled with her in the town of Roxbury, which was her place of settlement. I do not think a settlement under the laws of a sister state, any more than under the laws of a foreign country, fixes or affects the condition or the capacity of the persons thus settled, so as to attach to them wherever they go, and so as to controul their fortune or their fate after their domicil has been quivocally transferred to another state or nation. Th settle- ment laws of different states are only local regulations, bearing upon the respective counties, towns or cities therein, and de- fining which of these shall stand charged with the relief and support of the poor, and can have no effect upon the tion or laws of other states on the same subject. " The changes og domicil," says Pothier, " delivers persons from the empire of the laws of the place of the domicil they have quit- ted, and subjects them to those of the new domicil they have acquired." Sto. Confl. L. & 46. 59. 69. 70. 92. 103. Doe d. Birtwhistle v. Vardill, 5 B. & Cress. 438, (11 E. C. L. 266.) Such, I think, is the principle recognized and relied upon, by Kent, Ch. J., in the case already cited of Wynkoop v. The Overseers of New-York; and such clearly is the doctrine of the courts of Massachusetts. Townsend v. Billerica, 10 Mass. R. 411. Canton v. Bently, 11 Mass. R. 441, The only case of modern

date relied upon in support of a contrary doctrine, is that of Middletown v. Lyme, 5 Conn. R. 95. If that case affects this, it is only by a very loose analogy. The person whose settlement was there in question, had vol- untarily renounced his domicil and his settlement in this state, and by his own agency, had acquired another in New-Hamp- shire. It stands alone ; and moreover, I think, the authority of it has been repealed, by sec. 20. ch. 2. of our Revised Statutes, entitled, “ An act providing for the support of pau- pers by which, it is now provided, in opposition to the doc- trine of that case, that a person returning into this state from another, where he has gained a settlement, shall be chargea- ble to the town in this state, where he had his last legal settle- ment. The feudal and repulsive doctrine

of the common law, that a bastard child has no parent, no protector, not even a mother, has never found favour in this state. Here, an illegitimate child has a settlement by parentage, and may inherit its mother’s estate; and it is an established rule of our law, founded upon the natural relationship of parent and child, that Litchfield, July, 1830. Beihiem V. a bastard, at its birth, takes the mother’s place of settlement, and follows it, daring minority, through all its changes, as a legitimate child follows the settlement of its father. If the mother, by her own act, acquires a new settlement, her illegitimate child goes with her; and if, by her marriage, the law transfers her place of settlement to that of her husband, the same, by operation of law, becomes the place of the settlement of the child ; and this, whether the child be born in this state or out of it. These doctrines of our law have grown out of the deep-seated principles of natural affection, and are essentially invaded, by the decision of this case. Danbury v. New-Haven, 5 Conn. R. 584. Woodstock v. Hooker, 6 Conn. R. 35. New-Haven v. Newtown, 12 Conn. R. 165. Oxford v. Bethany, 19 Conn. R. 229.

Although the place of birth is, in all cases, prima facie, the place of a child’s settlement, whether it be legitimate or illegitimate, yet the place of the parent’s settlement, when discovered, will always supersede it; and I have not discovered any plausible reason why the present case should be made an exception to this rule. Newtown v. Stratford, 3 Conn. R. 600. Woodstock v. Hooker, 6 Conn. R. 35. If the mother would have communicated to this child, Sheldon Bishop, a new settlement, which she might have gained in Roxbury, after her return to this state, it seems to me, that it must be true that she communicated to him the settlement which she already had in that town.

Judgment for defendants.