text:
    Brownell vs. Palmer and others.
    In an action of trespass, quare clausum fregit, it appeared, that, from as far back as any living witness could remember, up to 1825, the locus in quo was part of a public highway, but had not been in use, as such, since 1823; that, in 1825, the selectmen of the town expressly discontinued such highway, as one originally laid out by their predecessors, and such discontinuance was approbated by the town, and acquiesced in by the public, but there was no record of any laying out of such road, by the town or the county court, nor any evidence of a dedication of the premises to the public, by any proprietor of the soil. It was held, in such case, that the jury had a right to presume, that such highway was-originally laid out by the selectmen, and was one which they had a right to discontinue.

      Where, in such action, the plaintiff offered, in evidence, an ancient vote, discontinuing the highway in question, which purported to be a vote passed at a meeting of the inhabitants of the town, legally holden by adjournment, and there was no further evidence, that such meeting was warned for the purpose of acting, in reference to such vote, it was held, that the jury had a right to presume, that the meeting was legally warned for that purpose, until the contrary was shown.
    Where such vote referred to other papers, which had been lost, it was also held, that in its application, it was to be taken, in connection with such papers, and that the contents of the latter might be proved by parol:
    A, being in the occupation of certain premises, which were claimed, by the selectmen of the town, to be a part of the public highway, was notified by them, in conformity with the statute, to remove the obstructions placed thereon, by him. It was claimed by A, that the locus in quo was part of an ancient highway which had been discontinued, but he gave no notice of such claim to the selectmen. In an action of trespass, brought by A, against the selectmen, for removing such obstructions, and reconstructing said highway, it was held, that A was not estopped from showing such discontinuance, by reason of his neglect to notify the selectmen thereof, at the time of said notice from them.
    This was an action of trespass, qu. cl.fr., brought by Edward P. Brownell, against William Palmer, Jr., Charles W. Lay, Ezra T. Jones and Elijah C. Warner.
    The defendants general issue, with notice, that they should prove certain facts, as a justification.
    The cause was tried at Haddam, March term, 1851.
    Upon the trial, the plaintiff introduced evidence to prove» that, at the time of the commission of the trespasses complained of, he was, and for more than twenty years previous thereto, had been, in the possession of the premises described in his declaration, and that the defendants, on the 18th day of September, 1850, and on several subsequent days, broke and entered up.on the premises, cut down divers trees and bushes, thereon growing, built thereon two bridges, one across a river, called Moodus river, running through the premises, and the other over a sluice-way leading from his pond to his mill, removed a building thereon standing, and plowed up the ground.
    The defendants admitted the possession of the premises by the plaintiff, and the commission, by them, of the aforesaid acts, and claimed that they were justified in so doing, upon the ground, that the premises were a part of an old highway, and that said acts were done, for the purpose of removing the obstructions thereon, and repairing it, for the accommodation of the public travel. And, in support of their claim, they called witnesses, some of whom were seventy years of age, to prove that the premises, as far back as they could remember, were used as a public highway, and were a part of the main road, leading from the north part of the town of East Haddam, to the town of Lyme, and had so continued to be used, until March, 1823, when the bridge across'said river was carried away, a new road opened, eastward of the premises, and connecting with said main road, at points northerly and southerly of the premises,— and that the plaintiff, afterward, entered upon the premises, cut a sluice-way across the same, and erected thereon a building, by means of which he had inclosed the principal part of said old highway.
    They further introduced evidence to prove, that Palmer and Warner, two of the defendants, and William Marsh and Ansel Hungerford, at the time of the commission of the trespasses, and for some time previous thereto, were selectmen of the town of East Haddam ; that, at the request of sundry inhabitants of said town, said Palmer, Warner and Marsh, gave due notice to the plaintiff, in conformity to the requirements of the statute, to remove the obstructions, by him placed upon said highway, which he neglected and refused to do, and therefore they, and Lay and Jones, the two other defendants, as their servants, acting under and by their authority, entered upon the premises, removed the encroachments, and did the acts complained of, for the purpose of repairing said highway, and making it fit for public travel, and did nothing more than was necessary for that purpose.
    The plaintiff admitted, that there was formerly a highway across the premises, but claimed that the same had been legally discontinued, and introduced evidence to prove, that in March, 1823, when the bridge upon the premises was carried away, the selectmen of said town of East Haddam laid out, and caused to be made, a new highway, a little eastward of the old one, and intersecting it, at points northerly and southerly of the premises; and that, in consequence thereof, the old' road between said points of intersection, down to the time of the commission of said trespasses, had ceased to be used as a public highway, and by reason of the destruction of said bridge, had become impassable by horses and carriages; that in January, 1825, the selectmen of said town executed a writing, and caused the same to be recorded, discontinuing the north end of said old road, lying south of the north point of intersection of said old and new roads.
    He further introduced evidence to prove, that in February, 1825, James H. Brownell, his brother, purchased a tract of land, embracing the premises described in the declaration, and all the traveled portion of the old highway, down to the southern point of intersection of the two roads; that in the month of June following, the then selectmen of East Had-dam executed and delivered to said James, a writing, of the same tenor with the one discontinuing the old road over the premises, and all that part lying south, down to said southern point of intersection, leaving about ten rods on said old road, unaffected by said writings ; that on the 21st day of November, 1825, the two writings, given to said Gates and said James, were laid before the inhabitants of said town of East Haddam, at a legal town-meeting, and thereupon,” said inhabitants passed the following vote: “ At a meeting of the inhabitants of the town of East Haddam, legally holden, by adjournment, at the tow.n house, in said town, on Monday, Nov. 21, 1825, Hobert Estabrook, moderator:

      “ Voted, To accept of the discontinuance of an old highway, near the grist-mill, by the stone factory, on condition, that the adjoining proprietors pay the expense of the new road, laid in lieu thereofthat said James kept the writing so delivered to him, without ever having caused it to be recorded, until some three years preceding the trial, when the same was casually lost, and, upon due proof of such loss, parol evidence was admitted, to prove its contents.
    The plaintiff further offered evidence to prove, that in 1825, and soon after the purchase, by the said James, he entered into possession of the premises, under a title derived from said James, erected a factory, a short distance below the premises, cut a sluice-way across the premises, on the southerly side, to conduct the water from a pond above, to his factory, erected a building upon the northerly end of the premises, thereby inclosing the principal part of the premises, and entirely obstructing the public travel over the same, and so continued to occupy the premises, as his own property, for a period of more than twenty years, without any molestation or objection from any one; and therefore, he prayed the court to instruct the jury, that such possession and acquiescence were sufficient evidence of an abandonment of the road, by the public, and conferred upon him an exclusive right of possession.
    He also offered in evidence, the report of a committee, and a vote of the town of East Haddam thereon, by which said Ansel Hungerford, then one of the selectmen of the town, was appointed a commissioner for the repair of the several roads in the town; and thereupon claimed, and prayed the court to instruct the jury, that neither the other selectmen, nor any other persons, had a lawful right to repair said highway, or build said bridges, without authority either from the town, or said commissioner. It was proved and admitted, that said Hungerford had been called upon to act with the other selectmen, in opening and repairing said old road, and had refused to have anything to do with it; and that, at\ that time and when said trespasses were committed, he was a selectman and a road commissioner, under the aforesaid vote.

      The defendants objected to the admission of parol evidence, to show that the writing given to the said James H. was laid before the town meeting, at the time when said vote, relating to the discontinuance of the old road, was passed,—and also, to the admission of said vote in evidence, because it did not, upon its face, show that it applied to the road in question, and because there was no evidence, that the warning embraced any notice, .that any such matter was to be acted upon at the meeting; but the court overruled the objections, and admitted the evidence.
    They further claimed, that the selectmen in 1825, had no power to discontinue the road over the premises, because there was no evidence, that said road - had been laid out by them, or any of their predecessors in office, and prayed the court so to instruct the jury. And upon this subject, it was not claimed, by either party, that there was any evidence of the existence of any such highway, except what might be inferred from the use of • it as such, as aforesaid. And the defendants introduced evidence to prove, that, after the bridge on the premises was carried away by a freshet, in 1823, some plants were laid across said river, below where said bridge had stood, over which the plaintiff and others occasionally passed on foot.
    The defendants further claimed, that if said road had been discontinued by the selectmen, as claimed by the plaintiff, it was his duty to inform the selectmen thereof, when he was notified, by them, to remove the obstructions, because such discontinuance had not been recorded; and prayed the court so to instruct the jury.
    The court instructed the jury, that the principal question of fact for them to determine, was, whether the old highway, over the premises described in the declaration, had been legally discontinued, by the selectmen of the town of East Haddam, with the approbation of that town, in 1825, in the manner claimed by the plaintiff. If they should find it so discontinued, then the defendants were trespassers, and were liable for tbe acts, which it was proved and admitted, they had done upon the premises. But if they should find, that it had not been so discontinued, then they ought to find a verdict in favor of the defendants, unless they should further find, that the defendants had committed trespasses upon the premises,'beyond the limits of said highway; that the selectmen, in 1825, had, by law, no power to discontinue any highway, except such as had been laid out by themselves, or their predecessors in office. Yet in the present case, as there was no evidence, showing by whom the highway was originally laid out, if the jury should-find that the selectmen, in 1825, expressly discontinued it, as a highway originally laid out by their predecessors in office, and there was no evidence, showing that it had not been so laid out, and such discontinuance had been approbated by the town, and acquiesced in by the public and all concerned, for a period of more than twenty years, they would have a right to presume, that the highway was one which the selectmen had power to discontinue, and that their doings were legal; that, in relation to the vote of the town, passed at a meeting of the inhabitants, holden on the 21st of November, 1825, they could not legally act upon any matter, not specified in the warning. Y et, in the case of an ancient vote, found upon the records of a town, purporting to be a vote passed at a legal meeting of the inhabitants, in the absence of all evidence in relation to the contents of the warning, by which the meeting was called, the jury had a right to presume that the meeting was legally warned, for the purpose of enabling them to act upon the subject matter of the vote, and that the doings of the town were leg(al, until the contrary was shown, especially when such doings had been long acquiesced in by all concerned;' that, in relation to the possession of the premises by the plaintiff, the law was so that, by an adverse possession of a highway, for a period of more than twenty years, he could not gain a title as against the public. To prove such a title, it was necessary for him to make out a prescriptive right,—that is, a title by an occupation, extending at least as far back as living witnesses could remember. But in the present case, the long possession by the plaintiff, with the acquiescence on the part of the town and the public, was a circumstance, proper to be taken into consideration by the jury, in connection with the other evidence in the case, in determining whether there had been an actual discontinuance by the selectmen, in the manner claimed by the plaintiff.
    The jury having returned a verdict in favor of the plaintiff, the defendants moved for a new trial, on the ground, that the court erred, in admitting the evidence objected to, and in the instructions given to the jury.

      BuTkeley and W. D. Shipman, for the motion,
    contended, 1. That the court erred, in instructing the jury, that they had a right to presume, that the highway in question was one the selectmen had power to discontinue, and that their doings were legal. There was no proof offered, or claim made, that any land records of the town have been lost, since 1773. Fowler v. Savage, 3 Conn. R., 97. Wooster v. Butler, 13 Conn. R., 315. 1 Greenl. Ev., sec. 20. Sutton v. Uxbridge, 2 Pick., 436. Franklin v. Dedham, 18 Pick., 544. Hamilton v. Ipswich, 10 Mass. R., 506. U. S. Bank v. Corcoran, 2 Peters, 133.
    2. The vote of the town was not admissible in evidence; it was passed at an adjourned town-meeting. There was no offer to show when the original meeting was held : it may have been before any action of the selectmen. There was no claim made, that the warning could not be found, and there is no presumption that the meeting had a right to pass this vote. It was incumbent on the party offering the vote, and seeking to avail himself of it, to show that the meeting was so warned as to give the town power to pass it. Willard v. Killingworth, 8 Conn. R., 247. Brunswick v. Mc

      Kean, 4 Greenl., 508. Butler v. Holley, 6 Greenl., 145. Hathaway v. Clark, 5 Pick., 490. Thayer v. Stearns, 1 Pick., 109. Beach v. Rogers, 1 Mass. R., 159.
    3. The vote, in terms, applied to another portion of the road, the discontinuance of which appeared upon the town records, and the jury were not directed to consider, whether this vote embraced the way in question, by applying the vole to its proper subject matter, by the aid of extrinsic evidence. The vote was conditional upon its face; and no evidence was offered, or claim made, that its terms were complied with. It was therefore invalid. Stat. 1849, p. 421.
    4. Parol evidence was not admissible, to prove that the writing, given to Brownell by the selectmen, was before the meeting when the vote was passed. Southington Ecclesiastical Society v. Gridley, 20 Conn. R., 204. Taylor v. Henry, 2 Pick., 397.
    5. The plaintiff, not having informed the selectmen of the discontinuance of the road, as claimed by him, when notified to remove the obstructions, is now estopped to claim damages, and the court should so have charged. 1 Greenl. Ev., sec. 22, 207. E. H. Bank v. Shailor, 20 Conn. R., 22. Brown v. Wheeler, 17 Conn. R., 354. Kinne v. Farnesworth, id., 361. Roe v. Jerome, 18 Conn. R., 153. Bushnell v. Church, 15 Conn. R., 421. Gray v. Wells, 27 E. C. L., 54, 58. Dazell v. Odell, 3 Hill, 215. Reynolds v. Lounsbury, 6 Hill, 536.

      Dutton and Ingham, contra,
    contended, 1. That parol evidence, as to the discontinuance of the highway, was properly admitted. The statute only requires, that the discontinuance shall be approved by the town. The discontinuance itself need not be recorded. Stat. 1849, p. 421. Stat. 1821, p. 272.
    As the writing was lost, parol evidence of its contents could be given. This may be done, even in case of the loss of a record. 1 Greenl. Ev., § 509.

      Parol evidence is always admissible, to apply an instrument, and for the same reason a vote, to its subject. 1 Greenl. Ev., § 295, 297, 301. West School District v. Merrills, 12 Conn. R., 437.
    2. The evidence of the discontinuance, by the selectmen, was properly admitted. Where an act, which is done, presupposes a previous act, it is evidence, especially after a lapse of time, and acquiescence, that' the previous act was done. West School District v. Merrills, 12 Conn. R., 440. U. S. Bank v. Dandridge, 12 Wheaton, 64. 1 Greenl. Ev., § 20, n. 2.. 3 Starkie’s Ev., 1250, and n. 1. Best on Presumptions, 145. Copp v. Lamb, 3 Fairf., 312. Mussey v. White, 3 Greenl., 290. 2 U. S. Dig., 276, § 1643—275, § 1639. 14 Mass. R., 147. 2 n. 14, 210. 3 U. S. Dig., 279, § 1722. Knox v. Jenks, 7 Mass., 488. Thompson v. Carr, 5 N. H. R., 510.
    No record or vote of the town was necessary, nor was the laying out required to be lodged on file.
    S. The appointment of Hungerford, as road commissioner, superseded the authority of the selectmen to repair the highway, if it was not discontinued. The defendants were therefore trespassers, and if the evidence of discontinuance was improperly admitted, a new trial would not be granted. If granted at all, it would only be for a hearing in damages. Stat. 1849, p. 418.
    4. The evidence of the possession of the plaintiff, and the acquiescence of the town and public, was clearly admissible, iu corroboration of the testimony regarding the discontinuance. J. H. Brownell would not have inclosed and improved the land, as his, on which the old highway passed,— and the town and public would not have suffered him to do it, unless there had been a discontinuance.
   Hinman, J.

The defendants, selectmen of the town of East Haddam, did the acts complained of in the declaration, for the purpose, as they claimed, of repairing one of the highways of that town; and the case turned upon the question, whether the locus in quo wras highway, or whether it was the unincumbered estate of the plaintiff. Anciently, there had been a highway there, but it had not been in use, as such, at any time since 1823; and the plaintiff claimed it was discontinued, by the selectmen in 1825, and the discontinuance approved by the town, at an adjourned town-meeting in November of that year. On this point a question arose, whether the ancient highway was one originally laid out by the selectmen; if it was not, then the selectmen had no power to discontinue it in 1825. There was no record of any survey or laying out of the road, either by the selectmen, or the original proprietors of the town, or by the county court. Nor was there any evidence of the dedication of the premises to the public use, as a highway, by any owner or proprietor of the soil; all that appeared was, that from as far back as any living witnesses could remember, up to 1823, when it ceased to be any longer used as a highway, the place was a part of the main road, from the north part of East Haddam, to the town of Lyme.

Under these circumstances, the judge at the circuit was of opinion, and instructed the jury, that if the selectmen in 1825, expressly discontinued the highway, as one originally laid out by their predecessors in office, and there was no evidence, showing that it had not so been laid out, and such discontinuance had been approbated by the town, and had been acquiesced in by the public, and all concerned, for more than twenty years, then the jury would have a right to presume, that the highway was one which the selectmen had power to discontinue, and their doings were legal.

We think this instruction was correct. It may be admitted that, if it had been shown that the ancient highway had been established, since the year 1773, when it was first required, that the acts of the selectmen, in laying out highways, should be approved by the town, in order to be valid, it would have been necessary for the plaintiff to show, that it had been originally laid out by the predecessors of the selectmen of 1825; because, in that case, the doings of the town, in approving of the survey and lay-out by the selectmen, would appear upon the records of the town, and the absence of any such record would be strong presumptive proof, that the road was laid out in some other way. In the present instance, the proof went back as far as any living witnesses could remember, and it was found impossible to show when the road commenced. Perhaps it would be proper to presume, from this circumstance alone, that the road in fact had its commencement before 1773. But, whether so or not, we think this fact, in connection with the admitted fact, that there was no record evidence, of any kind, of the original lay-out of the road, proved, that it was not laid out by the county court, or by the original proprietors of the town, or by the selectmen since the year 1773; becausé in either of these cases, there would have been record evidence of its origin. The road then must have been dedicated to the public use, as a highway, by some owner of the soil, or it must have been laid out by the selectmen, at a time when they could legally do so, under such circumstances, that no record of their proceedings would probably be preserved for any considerable time ; and so, no presumption would arise against the claim or supposition, that it was so laid out, from the fact that we find no record of the proceeding.

But long previous to 1773, the selectmen were authorized to lay out highways, and the ancient statutes, empowering them to do so, did not require their proceedings to be reported to the town, or to be recorded. Statutes, ed. 1750, p. 381. Ed. 1715, pp. 50, 51. Peters, J., 3 Conn. R., 98.

If this road was first laid out by the selectmen, before they were required to lay their proceedings before the town, there would of course be no regular town record of it; and the survey which it would be necessary for the selectmen to make, being a loose paper, only preserved on file with the other papers in the custody of the selectmen, it could hardly be expected to be preserved for any great length of time; and after a lapse of more than half a century, which has now intervened, considering the manner in which the papers of selectmen, generally, are even now kept, no one could reasonably hope or expect to be able to find it.

It is true, that the road might have been dedicated to the public use, by some individual owner of the soil; but this, though a possible manner in which a highway may have originated, is by no means the most probable manner; and if the selectmen of 1825, acting only upon the evidence before them, assuming, at the same time, that it was only such as we have here indicated, came to the conclusion, that this ancient highway was one originally laid out by their predecessors, we should hardly be disposed to differ from them. But it is obvious, that the selectmen of 1825 might have had evidence, other than that to which we have alluded, and which the lapse of intervening time has destroyed, that satisfied them, that the road was originally laid out by their predecessors in office. It is in cases of this sort, that the maxim of law applies, that acts of an official character, which require the concurrence of official persons, are presumed to be rightly done, until the contrary appears. It is said, that this maxim does not apply, to give jurisdiction to the selectmen of 1825; but their jurisdiction must be shown, by first showing, that the ancient road had been laid out by their predecessors ; and, that then the maxim will apply, to supply the proof of collateral parts, necessary to give validity to the act.

If this was a recent transaction, not supported by the possession of the plaintiff, exclusive, and adverse to any supposed right of the public, at the place in question, there would, doubtless, be force in this suggestion; but, in cases where the original possession can not be accounted for, except upon the idea of a grant, or relinquishment of the right, by a third person, or even by the public, it is correctly said in Best on Presumptions, 145, “ that there is hardly a species of act or document, public or private, that will not be presumed, in support of possessionand the, cases to which he refers, fully sustain this proposition.

The maxim itself, it is said, is nothing more than the statute of limitation expressed in a different form, and applied to other subjects. 2 Greenl. Ev., § 20. After the lapse of twenty years, it has been applied to the warnings of the meeting of a corporation. 1 N. H. R., 310. And in 3 N. H. R., 340, 4 id., 71, the court say, that in all cases where enough of the proceedings are shown to render it not improbable, that they may have all been regular, “then, long and quiet possession may be left to a jury, as evidence of particular facts, the ordinary proof of which is not to be found.”

In Massachusetts, after twenty years’ possesion of real estate, held under an administrator’s sale, the court left it to the jury to say, whether the administrator took the oath, and posted notices of the sale, according to the directions of his license or order to sell. Gray v. Gardner, 3 Mass. R., 399. And our own court held, (Bryan v. Hinman, 5 Day’s R., 211) that it was proper to submit the question toa jury, to find, from lapse of time, and other circumstances, whether notice of an administrator’s sale of real estate, had been given according to law. It has also applied this maxim to the acts of an officer, in setting off land on execution. Booth v. Booth, 7 Conn. R., 350. Brace v. Catlin, id., 358, n. Ives v. Lyon, id., 505. We think, therefore, that the course taken upon this question, by the judge on the circuit, was the proper course. Whether he would have been justified (from the mere fact of the disuse of the old highway, for twenty years, accompanied by an exclusive appropriation of it to the private usé of the plaintiff, without any evidence, going to show that it had been discontinued, in some particular way,) in submitting it to the jury to find, whether it had not been legally discontinued, in some way, is a question which it is not necessary to determine. Had it been a private right of way, acquired by prescription, it would have been lost by such a non-user, in fifteen years. We are awarOj however, that prescription, as such, does not run against a public right, and that statutes of limitation, unless made for that purpose, do not apply to public rights; and it has even been said, that no length of time, during which a highway may not have been used, will prevent the public from resuming the right, if they think proper. Gibbs, J., in Rex v. St. James Munton, 2 Selwin N. P., 1362; and in Vooght v. Winch., 2 B. & A., 662, it was held, that twenty years’ possession of navigable water would riot have the effect of preventing the king’s subjects from using it as such. Still it was said, by our own court, in Beardslee v. French, 7 Conn. R., 125, that the non-user of a highway, for many years, was prima facie evidence of a release of the public right to the owner of the soil. The court undoubtedly went upon Lord Mansfield’s principle, of quieting the possession. He said, that “ courts had thought that a jury should presume anything, for that purpose.” Cowp., 215, 102. And, in favor of very long possession, this, as we have already said, is true; but whether twenty years are sufficient for this purpose, we will not attempt to determine, being satisfied with the ground taken by the judge on the circuit.

The defendants objected to the admission of the vote of the town, discontinuing, as the plaintiff claimed, the old highway in question, on the ground, that there was no evidence, that the meeting was warned, for the purpose of acting upon the subject matter of said vote. The vote was passed at an adjourned'town-meeting, held on the 21st day of November, 1825. The annual town-meetings, in all our towns, are, by statute, required to be held in the months of October, November or December; and the universal practice is, as we believe, to hold them, either in the first or second weeks of October or November; we presume, therefore, that the adjourned meeting, at which this vote was passed, was a continuation of the annual town-meeting of that year. The statute, then and now in force, authorized the selectmen, with the approbation of the town, to discontinue any highway laid out by them, or their predecessors in office. Stat. 1824, p. 227.

The selectmen, then, had jurisdiction over this subject, it being found to have been a road laid out by their predecessors. Now, the selectmen .act, in the first instance, and then lay the matter before the town. They act partly in the capacity of public agents, in this matter, and, to a certain extent, as the agents of the town. They too, as town agents, are the individuals who are required to warn town-meetings, and the jury have found, that, with the approbation of the town, they did discontinue this highway. But, before the town could give such approbation, the meeting must have been warned for the purpose, and it was the duty of the selectmen, to see that it was so warned. Can it be supposed, that they would neglect such a duty as this ? Or that they would lay such a matter before a meeting, which they had themselves warned, without first taking the steps necessary to render the action of the town legal 1 The selectmen discontinued the road, in June of that year. This was several months before the action of the town. Of course, they knew, when they warned the meeting, that fall, that the matter required the action of the town : we think, therefore, they are entitled to the presumption of having acted correctly, until the contrary is shown.

Again, it is claimed, that the vote of the town does not show, upon its face, what highway was discontinued: that the vote “to accept of the discontinuance of an old highway, near the grist-mill, by the stone factory,” is not specific enough to show that this road was the one intended. But the vote, on its face, refers to another paper, or, as was the case here, to other papers—“the discontinuance of an old highway.” This discontinuance was in writing, and was the act of the selectmen; it must, therefore, be taken, together with the vote, and as a part of it, and thus taken, the vote is specific enough. It is true, that in this case, it was necessary to make out the contents of this discontinuance, by parol, because the paper itself was lost,—but lost documents may always be supplied, by proof of their .contents.

It was claimed again, that the vote referred only to another portion of this old highway, in regard to which the discontinuance was on record; and the jury were not instructed to consider, whether it embraced the part in question. This objection was not made on the trial, nor was the court asked to present any such question to the jury. The claim on the trial was, that the plaintiff ought not to be permitted to show that the discontinuance was before the town-meeting, when it passed the vote alluded to, on the ground that it was an attempt to prove, by parol, the act of the town, and so to eke out a part of the vote, by parol. This objection, if well founded, would have been fatal to the vote. But it is not well founded. There was no necessity, to spread out upon the town-clerk’s book of entries, the papers to which the vote referred, and which formed a part of the vote itself: these papers were as much a part of the record, as if they had been copied in full. It was the duty of the/ clerk, to keep them on file, but, for some reason, he delivered the one in question, to the owner of the soil. This, though improper on the part of the clerk, did not destroy it, as a part of the record,; it still remained a file, to which the clerk’s minutes referred, and being now lost, its contents may be proved by parol. The vote, so far as the clerk’s minute shows it, is general in its terms, and applies to the whole'of the “old highway, pear the grist-mill,” not to a part of it. The only question then was, whether the “discontinuance” to which it refers, was of the whole of the old road, or only of a part of it. It happened, that the selectmen acted at different times, discontinuing one part of it in January, and the other part in June : but together, these papers were a discontinuance of the whole. The town-meeting might have acted upon them separately also, but it chose to act upon the whole at once. We see no objection to this ; and showing that the paper was before the meeting at the time, is simply applying the vote to its proper subject matter.

The defendants, before they committed the acts complained of, on the supposition that the locus in quo was highway, as selectmen of the town of East Haddam, gave notice to the plaintiff, in conformity to the statute, to remove the obstructions by him placed upon the premises, and he neglected and refused to do so. The motion does not show, specifically, on what ground he so refused. As he had been in the exclusive possession of the premises, for more than twenty years, occupying there in a manner wholly inconsistent with the claim, that there was a highway there, the natural inference would be, that he was occupying as owner, and as such, claiming a right co-extensive with his occupation. Still, it is insisted, that, because he did not inform the selectmen, that the road had been discontinued, he is es-topped now from claiming damages for the trespass. To this claim, we can only say, that we know of no principle of law, that makes it necessary for a party, in possession of property, to give a history of his title, to every intruder who may choose to contest it with him; and it does not seem to us to make any difference, in this respect, that the party claiming the benefit of such a rule, happens to be a board of selectmen, claiming to act in the discharge of ijs official duty.

As we find no error in the proceedings of the superior court, we do not advise a new trial.

In this opinion, the other judges concurred, except Waite, J., who tried the cause, in the court below, and was therefore disqualified, and Storrs, J., who was absent.

New trial not advised.


source: Caselaw Access Project

author: Church, C. J.

license: Public Domain

text:
    The Wardens and Vestry of Trinity Church, in Portland, vs. Hall and another.
    In an appeal from a decree of a court of probate, the reasons assigned by the appellant were founded upon the action of the court, in allowing and settling an administration account. The appellees, in their answer, departed from the issue thus proved, and replied, that the appellants had no interest in the estate in settlement. It was held, that such objection was a preliminary one, and should have been made, before the truth and sufficiency of the reasons of appeal were heard and decided.
    The name of a voluntary ecclesiastical corporation, formed under the laws of this state, without a special legislative act of incorporation, is arbitrary, and a change or alteration in its name, does not affect its identity.
    Wardens and vestry are the known and recognized representatives and committee of Episcopal societies; and a bequest to wardens and vestry, is a bequest to the society itself, or to them, as trustees for its use.
    It is immaterial, whether appeals from probate decrees, taken for the benefit of such societies, are taken in their own names, or in the names of such wardens and vestry.
    In the year 1789, an Episcopal society was formed in the town of C, under the statute relating to ecclesiastical societies. No name was ever formally adopted by the society, but, under various changes, it was called by some descriptive designation. Since the year 1841, it has generally been called, in the records, “ Trinity Church in Portland.” Having occasion to borrow money, the society authorized the wardens and vestry-men to make loans; and the latter borrowed certain sums of money, for which they executed promissory notes, as such officers of the society; but, with the exception of-such notes, there was no evidence, that said society was ever called, the “ wardens and vestry of Trinity Church.” The wardens and vestry, in behalf of such society, which was a beneficiary, under the will of a deceased person, entered an appeal, for its benefit, from a decree of a court of probate, allowing the administration account on the estate of such deceased. No vote of the society was ever passed, authorizing the wardens and vestry, either to take the appeal, or to prosecute the same; and the only power conferred upon them, was that which the usages and customs of societies of that denomination confer upon such officers. Held, that the interest, which the society originally had, under the will of the deceased, continued, under all the varifety of naihes, by which it had been known, and that the appeal, so taken, was essentially the act of such society.
    This was an appeal, taken in the name of the “ wardens and vestry of Trinity church, Portland, formerly known as the Episcopal church in the First Society of Chatham,” from a decree of the court of probate for the district df Chatham, allowing the administration account of Samuel Hall, surviving executor of -the last will and testament of John Shepard, deceased. During the pendency of the settlement of said account, said Samuel Hall died, leaving a last will and testament; and Alfred Hall and S. Nelson Hall were named therein, as executors, to whom appertained the' completion of the settlement of the estate of-said John Shepard.
    The court, in allowing said appeal, found, that the appellants were interested in the estate,of said deceased.
    The -appellants assigned, for reasons of appeal, the allowance of certain items charged, and the disallowance of certain credits, in said administration account.
    In answer to the reasons of appeal, the appellees replied, that said wardens and vestry had not, at any time, either when said decree was passed, or when said pretended appeal was taken, any right or title to the estate of said deceased, or any part thereof, or any claim against the same, and wrere not aggrieved by said decree, and were not a corporate body, or known in the law ; and further replied specifically to each item, which the appellants claimed should have been embraced in, or excluded from, said administration account.
    The appellants rejoined, that they were not bound to answer the allegations, regarding the want of interest; and, as to all the other allegations, that they were not true.
    On the trial, the appellees offered in evidence, the will of said John Shepard, and also offered witnesses, to prove, that said appellants had not, at any time, either before or since the appeal, any right, title or interest in the estate of the testator, and were not aggrieved by said decree. To the admission of this evidence, the appellants objected, on the ground that it came too late, and that the alleged want of interest should have been pleaded in abatement. The court sustained the objection, and rejected the evidence.
    The appellees, claiming that the court erred, in rejecting the evidence, and in proceeding to render judgment disaffirming said decree, moved for a new trial.
    The parties, for the purpose of enabling them to take the opinion of the court, upon the effect of the evidence offered, should they be of opinion, that the same ought to have been received, in that stage of the proceedings, consented, that the same might be received, and the same was accordingly admitted, and was, in substance, as follows :
    In the ye'ar 1789, an Episcopal society was formed, in the town of Chatham, by the voluntary association of individuals, under the general statute relating to ecclesiastical societies, and without any special act of incorporation. No name was ever formally adopted by the society, but, it was generally called, by some name descriptive of the society, which, from time to time, was varied. In the records of the society, it was described under different names, as “ the Episcopal Society in Chatham;” “the Church in Chatham;” “the Episcopal Church in the First Society in Chatham ;” “ the Protestant Episcopal Church in the First. Society in Chatham,” &c. About the year 183.2, the society erected and dedicated a new house for public worship, which they called “ Trinity Church,” which name was afterward generally given to the society. In the year 1841, the old town of Chatham was divided, and that portion of the town, in which the church was situated, was incorporated by the name of Portland, and the society was afterward generally called in their records, “ Trinity Church in Portland.”
    The society, having occasion to borrow money, authorized the wardens and vestrymen to make loans; and the latter, as the officers of said society, borrowed of the said Samuel Hall, certain sums of money in his hands, as surviving executor, as aforesaid, for which they executed and delivered to him certain promissory notes; which moneys were, by them, borrowed for the use and benefit of said society, and were, by the said Hall, charged in his account, as moneys loaned to said society. But, with the exception of said notes, there was no evidence, that said society had ever been called by the name of the “ Wardens and Vestry of Trinity Church.”
    The wardens and vestry kept a record book, in which their doings were entered, separate from that containing a record of the proceedings of the society, when assembled together.
    When the administration account of the appellees was exhibited to the court of probate, for settlement, the wardens and vestry of said society appeared for and in behalf of said society, as the proper officers thereof, and defended against the claims of the appellees. And when said decree, approving said account, was made, the said wardens and vestry, as such officers, entered an appeal, for and in behalf of said society, and have, ever since, prosecuted the same, for the use and benefit of said society, and for no other purpose whatever.
    But no vote of the society was ever passed, authorizing the wardens and vestry, either to take the appeal, or prosecute the same and no powers were conferred upon them, in relation to said appeal, other than the general powers conferred upon such officers, by the usages and customs of societies of that denomination. But a report of the wardens and vestry, containing an account of the expenses of said appeal,- was laid before the society, at a regular meeting, holden after the appeal was taken, but no vote of the society was passed thereon.
    The motion of the appellees was thereupon allowed; and the following questions were reserved, for the consideration and advice of this court:
    First, whether said evidence was legally admissible, under said issue, for the purpose for which it was offered ?
    And secondly, If it was, whether it was sufficient to show such a want of interest in the appellants, that said appeal ought to have been dismissed ?

      Ingham, and Whittlesey, for the motion,
    contended, 1. That the issue tendered by the appellees, in that stage of the proceedings, was legal and proper, because the existence of interest in the appellant, in the subject matter, alone gives the right of appeal. Stat. 1849, p. 213. And no person can b'e aggrieved, in the statutory sense’ of the term, unless he is legally interested; and this interest must appear in ‘the motion for appeal. Swan v. Wheeler, 4 Day, 140. Saunders v. Denison, 20 Conn. R., 521. And when appealed, the whole cause presented below is open for trial, de novo, in the superior court. Fourth Ecclesiastical Soc. in Middletown v. Mather, 15 Conn. R., 600.
    2. That the pleadings and practice, on appeals from probate, are peculiar. There are no technical pleas in abatement, and no general issue, but the pleadings are in the nature of special pleadings, and the issues are special issues. A special issue is formed by a denial of some one material allegation in the declaration, which goes to the gist of the action, and this is a special issue. 1 Chitty’s PI., 472. 1 Swift’s Dig., 631.
    3. That in this case, the question of interest is matter of substance, and belongs to the merits of the appeal.

      “Wardens and vestry,” ex vi termini, expresses the'name of a class of officers in the church; and in this case, the evidence showed that they were not devisees as such, or as trustees. The church had the legal interest, and the appeal must therefore be taken in its name. Piggott v. Thompson, 3 B. & P., 147. Townsend v. Hoyle, 2 Conn. R. 1 Smith’s Merc. Law, 133. Bower v. Morris, 3 Taunton, 374. Angell on Corporations, 651.
    4. That whenever courts in any stage of a cause, discover that they have no jurisdiction, they are bound to dismiss it. 1 Swift’s Dig., 606.

      Bulkeley and Tyler, contra,
    contended, First, That the question, whether the appellants have any interest in this éstate, goes only to their disability. It is, therefore, preliminary, and to be settled before the reasons of the appeal are determined. Evidence offered by appellees, therefore, was not admissible. Phœnix Bank v. Curtis, 14 Conn. R., 437. Angell and Ames on Corporations, 388. 2 Chitty’s Pleadings, 440. Jones v. Bank of Tennessee, 8 B. Monroe, 122. Bank of Metropolis v. Orme, 3 Gill, 443. Stone v. Berkshire Congregational Soc., 14 Vt. R., 86. Medway Manuf. Co. v. Adams, 10 Mass. R., 363. Gilbert v. Pres. & Cash. Nantucket Bank, 5 Mass. R., 97. Meth. Epis. Church v. Wood, 5 Ham., 286.

      Secondly, That the evidence shows no such want of interest, as will defeat the appeal. Angelí and Ames on Corp., 377, 81, 86, 87. Sutton v. Cole, 3 Pick., 232. Savage Manuf. Co. v. Armstrong, 5 Shep. 7 Mass. R., 444. Sherman v. Proprietors of Conn. River Bridge, 11 Mass. R., 338. Woodson v. Bank of Gallipolis, 4 B. Monroe, 203. 6 id., 601. 8 id., 122.
   Church, C. J.

The appellees, in answer to the reasons-of appeal, given by the appellants, aver, that the appellants had not, and have not, any interest in the estate in settlement, and therefore have no right to prosecute this appeal. It is manifest, that this constitutes no valid answer to the reasons, although it might have been, in itself, a good cause for setting aside the appeal, under a proper motion, or application, made in due season.

The reasons of appeal are founded upon the action of the court of probate, in settling and allowing an administration account, and-these present the only issue to be tried by the supreme court. The appellees depart from this issue, and avoid it, by presenting a new and independent one, viz., whether the appellants had an interest in the estate of John Shepard ? This is rather in the nature of a plea in abatement, denying the capacity of the appellants, to take and prosecute the appeal. It was a preliminary objection, and should have been made and disposed of, before the truth or sufficiency of the reasons of appeal was heard and decided. Trustees of M. E. Church v. Tryon, 1 Denio, 451. Mayor &c. v. Bolton, 1 Bos. & Pull, 40. Phœnix Bank v. Curtis, 14 Conn. R., 437.

The superior court so determined, and thereupon excluded the evidence, offered to prove the want of interest in the appellants, upon a hearing of the reasons of appeal; but, at the same time, ex gratia, permitted the appellees to offer their evidence, as presenting a question of law, proper for the consideration of this court.

From the record, it appears, that the appellants claim, as wardens and vestry of Trinity church, Portland, and that the court of probate found, that as such, they had an interest in the matters in dispute, as devisees or legatees, under the last will and testament of John Shepard. What are the terms of that will, and how the appellants, or their interests, are described in it, does not appear; but we must infer, that it contained some bequest, either t£> the wardens and vestry, or otherwise, for the benefit of the Episcopal society in Chatham, now Portland.

The evidence offered shows, that a legally constituted Episcopal society had existed in Chatham, for many years, under different names, all descriptive of its character, and, after the town of Portland was constituted, under the name of Trinity church, Portland, by which it is now known, and by which name, the appellees have recognized it. This-society was a voluntary corporation, constituted under our laws, but without a special legislative act of incorporation, and without an established name. Names, in such case, are arbitrary, and do not at all affect the identity of the corporation. This society, originally -established in the same locality, in the town of Chatham, has preserved its succession and identity, from the beginning, and is the same society now, as it was, when it became interested in the will of John Shepard.

It is- found, that the wardens and vestry of this society appeared before the court of probate, for and in behalf of the society, as its proper officers, and defended against the claims of the appellees, and, in the same capacity, and. for the benefit of the society, they have taken and now prosecute this appeal, and all this, known to the society, and without objection.

Wardens and vestry of Episcopal societies are the known and recognized representatives and committee of such societies ; and any bequest to such wardens and vestry, is a bequest to the society itself, or to them as trustees for its use.

If, therefore, this Episcopal society, either directly as a society, or in the name of its wardens and vestry, had an interest, under Shepard’s will, this interest has continued, under all the variety of names, by which the society has been known; and, when its wardens and vestry act on its behalf, to protect such interest, it is the society essentially which acts by and in the name of its representatives. Sutton v. Cole, 3 Pick., 232. Minot v. Curtiss, 7 Mass. R., 444.

No one can fail to understand the nature of this proceeding. It is an attempt, by the Episcopal society, who was and is a beneficiary, under the will of John Shepard, in its modern name of Trinity church, Portland, and by its legally constituted agents, to protect its interests in the court of probate; and the only real objection is, as it seems to us, that the form of proceeding has not been in conformity with the rules of common law pleadings.

But in proceedings in courts of probate, the forms of common law process and pleadings are not regarded, and can not be; and it is, therefore, immaterial, in the present case, whether this appeal was taken and prosecuted, in the name of the society itself, or in the name of its wardens and vestry: it is essentially the act of the society. We are of opinion that a new trial should not be granted.

In this opinion the other judges concurred, except Waite, J., who tried the cause below, and was therefore disqualified, and Stores, J., who was absent.

New trial not granted.


author: Hinman, J. Ellsworth, J.

text:
    The Mutual Benefit Life Insurance Company vs. Jarvis.
    The charter of the Mutual Benefit Life Insurance Company provided, that all persons who should, at any time, insure in or with said association, should, while so insured, be deemed and taken to be members of said corporation. It authorized the company, to take the notes or obligations of their members, for the amount, either in part or in whole, of the premium of insurance. If there should be just claims on the corporation, for losses sustained, to a greater amount than they had funds to meet, it required the directors, to assess such deficiency, in a ratable proportion, on the members of the association, or their lawful representatives, according to the amount of such members’ insurance, “ provided, that such assessment shall not exceed the amount of the note or obligation given by each member.” ' A by-law of said company provided, that, in all cases when the premium was more than fifty dollars, it might be paid—one-fourth in cash, and three-fourths in a secured note, at twelve months, bearing six per cent, interest, and subject to assessments, if required. A, having become a member of said company, effected, therein, an insurance on his life for $5,000, for one year, and gave his note for three-fourths of the premium, to be paid for such insurance. At the end of the first year, he caused his policy to be renewed, and gave the company a new note, for the amount of the first note, together with the additional premium, which was payable by note, for the insurance of the second year, and applied for no further insurance. In an action upon said last note, brought by said company, against A, after his policy had expired, by lapse of time, it was held, that such note was to be taken, in connection with the limitations and conditions in the charter and by-laws of the plaintiffs; and, though absolute on its face, it was to be regarded only as a security for the payment of the losses of the company, upon assessments regularly made for that purpose; and, therefore, that, as it did not appear, that the members had been assessed, in conformity with their charter, the plaintiffs were not entitled to recover. Held, also, that, although the declarations of the plaintiffs’ agent, made to the defendant, at the time said note was given, were not admissible in evidence, for the purpose of altering the contract between the parties, yet, such declarations were admissible, to show, that the note, though absolute in its terms, was received by the company, in connection with their charter and printed regulations.
    This was an action, brought to recover the amount of a promissory note, whieh, with its indorsement and guaranty, was as follows, viz.:

    “$367fVV Middletown, October 7th, 1848.

      “I promise to pay the Mutual Benefit Life Insurance Company, or to the order of their Treasurer, three hundred and sixty-seven dollars, for value received, without defalcation, or discount, with interest, at six per cent., payable in twelve months after date—or sooner, if required to meet assessments by the company. GEO. 0. JARVIS.”

      “For value received, I guarantee the payment of the above note, and stand security therefor, till paid.
    WILLIAM JARVIS.
    “ Middletown, October 7th, 1848.”
    “ Received on the within note, as principal, twenty-seven fVV dollars. November 29, 1843.”
    The defendant pleaded the general issue, with notice of special matter, to be given in evidence.
    The cause was tried at Middletown, February term, 1852. On the trial, it appeared, that the plaintiffs were a Mutual Life Insurance Company, duly incorporated by the legislature of New Jersey, having an agent residing in this state, for the purpose of enabling and assisting persons to become members of said corporation, and to effect the insurance of their respective lives therein, according to the provisions of their charter, and the by-laws and regulations of said company ;—which latter were shown to the defendant, at the time his policy of insurance was effected, and were in evidence on the trial. The second section of the charter provides, “ That all persons who shall, at any time hereafter, insure in, or with, said association, shall, while they continue so insured, be deemed and taken as members of the said corporation.” The'sixth section was as follows: “That it shall and may be lawful, for the officers of said corporation, to take the notes or obligations of the members, for the amount, either in part or in whole, of the premium of insurance, in proportion to the amount insured.” The. ninth section provided, that, “ if at any time it shall so happen, that there shall be just claims on the corporation for losses sustained, to a greater amount than they have funds on hand to discharge, in such cases, the directors for the time being shall, with all convenient expedition, proceed to assess such deficiency, in a ratable proportion, on the members of the association, or their lawful representatives, according to the amount of each member’s insurance,—provided, that such assessment shall not exceed-the amount of the note or obligation given by each member; which rates or assessment shall be approved of by a majority of the directors, and notice in writing shall be given to each member, or his lawful representative, of the assessment, and amount by him, her or them, required to be paid; and each and every member or his lawful representative, so notified, shall pay the same to the treasurer for the time being, within sixty days after such notification, and in default thereof, shall forfeit all right and claim to -any policy that he may have obtained, and be no longer a member of the association ; and shall also be liable for the amount of such assessment, with interest, to be recovered by action of debt, with costs of suit, before any court of competent jurisdiction.”
    It was provided in the by-laws of the company, that the premium, if over fifty dollars, might be paid, one-fourth in cash, and three fourths in a secured note, at twelve months, bearing six per cent, interest, and subject to assessment, if required, or that it might be paid weekly, monthly or quarterly. In. the policy itself was a provision, that in every case where the policy should cease, all previous payments should be forfeited.
    The defendant, on the 7th of October, 1847, became a member of said corporation, and made a declaration for the purpose of procuring the sum of $5,000, to be assured to him on his life, during the continuance thereof, and thereupon, for that purpose, paid to the agent of said company twenty-five per cent, of the annual premium, demanded for the" assurance of said $5,000, and gave his note for the remainder of said premium, which note was given for the sum of $183.75; and was, in all respects, except in date and amount, of. the same tenor as the note in suit.
    The defendant having complied with the plaintiffs’ terms, they thereupon issued, and, through their agent, delivered to him, a policy of insurance on his life for the said sum of $5,000.

      At the expiration of a year from the time of the defendant’s becoming a member of said company, and the effecting of said assurance therein, he paid to the agent of said company, for their benefit, twenty-five per cent, of said annual premium of $245, together with the interest on the aforesaid first year’s premium note, and took up said note, and thereupon executed and delivered to said agent the note in suit, the same being given for the seventy-five per cent, of the two years’ annual premium of $245.
    Soon after the execution of the last mentioned note, the plaintiffs’ agent informed the defendant, that, by a resolution of the company, fifteen per cent, of the annual premium notes of those members of the corporation who paid only twenty-five per cent, of their annual premiums in cash, was required by the company; and he thereupon demanded of the defendant said fifteen per cent, of the first year’s premium note, and stated to him, that, by mistake, or for the reason that, at the time the note in suit was given, he was not informed of the said resolution of the company on that subject, he omitted to require the payment of said fifteen per cent, at that time. The defendant objected to the payment of said fifteen per cent, in cash, unless it was required for the purpose of meeting losses which the company had suffered on their policies; and whether it was required for that purpose was then unknown to said agent, and also to the defendant. The defendant, however, paid the sum demanded, being $27,50, and the same was, by said agent, indorsed on the note in suit.
    It was not claimed, that there was any-intentional fraud, on the part of the plaintiffs, or their agent, in inducing the defendant to become a member of, and to effect his insurance in, said company; but it was proved, by parol, and was so found by the court, if the evidence, admitted to prove the same, was admissible,—otherwise, it was not,—that the plaintiffs’ agent, previous to the defendant’s effecting his insurance, informed the defendant, that the company gave policies of insurance, on as favorable terms to the insured, as any other life insurance company, and that no more than twenty-five per cent, of the annual premium would be required, in cash, of the assured, unless more was needed, to meet losses which might accrue on policies issued. It was also found, that these terms of insurance,were more favorable to the insured than the terms required by other companies; but if, in addition to the twenty-five per cent, first required in cash, fifteen per cent, of the annual premium notes is also required to be paid >in cash, when not required to meet losses, these terms are less favorable to the insured, than other companies require, and are less favorable on life policies, than the terms required of those members of this corporation who procure insurance, upon the payment, at first, of fifty per cent, of their premiums, in cash.
    The plaintiffs objected to all the evidence of declarations of their said agent, as to their terms of insurance; but the court admitted the same, subject to the opinion of this court.
    The defendant, at the end of the second year from his becoming a member of said company, withdrew therefrom, and gave up his policy, and thenceforth ceased to be a member thereof.
    There was no evidence to show, and the plaintiffs did not claim, that they had sustained losses, to a greater amount than they had funds on hand sufficient to discharge, or that the company, or its directors, had made any assessments on-the members of the association, under the ninth section of their charter; but the plaintiffs claimed, that upon the foregoing facts, they were entitled to recover the full amount of the note in suit.
    The defendant claimed, that the plaintiffs were not entitled to recover anything.
    The questions arising upon the foregoing facts, as to what judgment should be rendered in the cause, were reserved for the advice of this court.

      Whittlesey and Spencer, for the plaintiffs,
    contended, 1. That the note in suit, is an absolute promise to pay, in twelve months from date, and also to pay sooner, if required, for the specific purpose of meeting assessments. It will bear no other construction.
    2. That the ninth section of the charter contains nothing inconsistent with the plaintiffs’ claim. The provisions of this section relate only to members, and it has no application to the defendant, he having ceased to be a member, when the suit was brought. It contains nothing, which precludes the plaintiffs from requiring all cash, or indulging their members, with such a credit as may be agreed upon. The object is, to require the directors to lay assessments, to meet losses. The defendant would wrest it into a provision to relieve a member from his express promise. It is only intended to apply to notes given in advance, and to assessments made upon them, before they become due.
    There is nothing either in the charter, or the policy, which gives color to the idea, that any part of the annual premium is nominal. The regulation required the whole to be paid in cash, if $50, or less; and if over $50, it may be paid weekly, monthly or quarterly.- Whatever might be the rights of the defendant, if he still remained a member, he became, at once, liable on his note, when he ceased to be a member.
    The policy, which in one place, acknowledges the payment of the premium, in another place provides, that “ in every case, where this policy shall cease, all previous payments shall be forfeited to the company.” Of course, the note which was taken in payment, became forfeited, as well as the cash which was paid, when the policy ceased, by the voluntary act of the defendant.
    3. Independently of the charter, or other documents in this case, the plaintiffs’ claim to give to the note a literal construction, is valid. The annual premium is a supposed equivalent for the annual risk. Notes are taken, only as a species of investment, equally convenient for the company and its members. These notes are the resources of the company, and it would be absurd to say that a member, by voluntarily withdrawing, can annul his own note.
    4. The defendant’s claim also makes an absurd distinction between that class of members who pay more, and those who pay less than $50 annual premium. If it should be claimed, that a member, after withdrawing, still remains liable on his note, but only so far as it may be assessed, under section 9 of the charter, this is equally absurd; for, what security have the company, that the assessments will then be paid ? They no longer have the security of the policy itself, because that has been already surrendered; nor can they require a new guaranty, however insolvent or worthless the old one may become.
    5. The evidence offered, to show the representations made by the plaintiffs’ agent, being designed to qualify, and vary the written contract of the defendant, is, of course, excluded by the general rule, as to parol evidence.

      Bulheley and Tyler, for the defendant,
    contended, 1.' That the charter and regulations show, that this was a mutual company, and it is so found by the court. Mutuality among its members is, therefore, essential and fundamental.
    But there would be no mutuality, if the company can enforce and collect the note of A, and wholly omit to collect that of B, and other members, at its pleasure.
    In this case, there was no mutuality in the payment required. Payment here is not sought to pay losses; it comes from a change adopted, since this insurance was effected, which can not operate to the prejudice of prior contracts. This company stands upon the same ground, as regards these notes, as our mutual fire companies, Jo theirs.
    2. That this company, under their charter and regulations, can not take the notes of the members, as investments, but only as deposit notes, and as security for the payment of assessments for losses. They can take such notes only as the charter authorizes, and can enforce them only as there provided. It can not take them upon interest, nor in the present form.
    3. Payment of these notes can be enforced only by reason of assessments, and upon all alike; and assessments can be made only for losses sustained to a greater amount than the fund on hand.
    No such occasion has arisen, no such assessment has been made, nor notice given, as required by the charter, and the plaintiffs’ allegations are not adapted to a recovery on such grounds. Broughton v. Manchester Water Works Co. 3 Barn. & Aid., 1, 9. New York Fire Ins. Co. v. Ely & Co., 5 Conn. R., 560. 2 Cowen, 679. Life & Fire Ins. Co. v. Mechanics’ Fire Ins. Co., 7 Wendell; 31. People v. Utica Ins. Co. 15 Johns. R., 358. Head & Amory v. Providence Ins. Co., 2 Cranch, 127. Beaty v. Knowles’ Lessee, 4 Pet., 168.
    4. Parol evidence was admissible, to show the purpose for which the note was given.
   Hinman, J.

The plaintiffs’ charter makes them, in fact, as well as in name, a Mutual Benefit Life Insurance Company. This is the fundamental principle of their organization. It is implied in their name, and is more fully expressed, in the body of the charter, which gives them power to insure the respective lives of their members, and denies them the power to insure any others, by providing that all persons, who shall, at any time, insure in or with said association, shall, while they continue so insured, be deemed and taken as members of the corporation; and provides for an equal assessment upon all the members, in proportion to each member’s insurance, to pay for losses, which the company may not have funds on hand to discharge.

The sixth section of the charter authorizes the company to take the notes or obligations of their members, for the amount, either in part or in whole, of the premiums of insurance, in proportion to the amount insured; and then, in the ninth section, it is provided that, if it shall so happen, that there shall be just claims on the corporation, for losses sustained, to a greater amount than they have funds on hand to discharge, the directors, in such case, shall proceed to assess such deficiency, in a ratable proportion, on the members of the association, or their lawful representatives, according to the amount of each member’s insurance, “provided that such assessment shall not exceed the amount of the note or obligation given by each member.” The section further provides, that if, on dub notice of his assessment, a member shall neglect to pay the same, within sixty days, he shall forfeit all claim to his policy, shall be no longer a member of the association, and.shall also be liable, to the amount of such assessment, in an action of debt. The only provision in the charter, relative to the payment of losses, is contained in this ninth section; and, as the funds of the company are all derived from the payment of premiums, by the members, on their respective policies, and as the members are, in no event, liable to be assessed, to any greater amount than their respective notes or obligations, it is clear, that the notes or obligations, referred to in the ninth section of the charter, as liable to this assessment, must be the notes or obligations which the company are authorized to take of its members, for the amount, either in part or in whole, of their respective premiums of insurance ; or, as they are called in the rules and regulations of the company, they are the premium notes of the members. The finding shows, that the note in suit was one of these premium notes; and, as the company has met with no losses, which makes it necessary for them to collect it, and has made no assessment to meet any loss, the question arises, whether the defendant is liable upon his note, except foy the purpose of meeting a loss, and then, only to the extent of an assessment regularly made, according to the provisions of the ninth section of the plaintiffs’ charter. The note is absolute and unconditional in its terms, and as the time it had to run has expired, it appears to be due. If this was all there was in the case, undoubtedly the plaintiffs could recover. It might have been given for money, or it might have .been given for the premium, or the portion of it, that was, by the agreement of the parties, to be paid in cash, irrespective of any call for losses; and if such was the case, it ought to be paid. The finding, how ever, shows, that such is not the case, and, on the contrary, that the understanding upon which this note was given, was, that it was not to be paid,“unless required to meet losses. It was given, for a portion of the premium, which, by the regulations of the company, it was the intention, should be met by the profits of the business, unless required to meet losses. In the prospectus, containing the rules and regulations of the company, which was examined by "the defendant, for the purpose of determining whether he would become a member of the company, and was delivered to him, for that purpose, by the company’s agent, we fin'd one of the first regulations to be, that the premium, if over fifty dollars, can be paid, one-fourth in cash, and three-fourths in a secured note, at twelve months, bearing six per cent, interest, and subject to assessment, if required; or it may be paid weekly, monthly, or quarterly. It was under this regulation, that the note in suit was given. It was, in part, a renewal of an original note, given for seventy-five per cent, of a previous year’s premium, and in part, for the same percentage on the then- accruing year’s premium. Under the head of “mode of payments,” we find this rule repeated, in these words : “If the annual premium is over fifty dollars, he can pay one-fourth in cash, and three-fourths in a secured note, at twelve months, bearing interest at six per cent.; which note is subject to assessment, if required by the directors, and of which sixty days’ notice will be given. At the end of the year, if the party so desires, he may renew the balance of the old note, not then called for, by paying the interest, and adding it to the next year’s premium note, and paying his twenty-five per cent, in cash, as at first.” Again, the company anticipated, that the membérs would receive back a large percentage of the amount paid, in annual dividends of profits, to be declared upon the amount of premium; and, in order to equalize the benefits to all their members, they provide, that scrip, bearing six per cent, interest, shall be issued to those who pay their premiums in full, which interest is to be paid annually; while those who give and renew their notes, are not to receive scrip, but their proportion of profits is carried to their credit, and, draws interest, being retained by the company, as additional • security for the notes. Again, the company say, that, by the system of payments adopted by them, it is easy for all who are. not paupers, to protect their families from want; they are not required to pay, from year to year, in cash, a portion of the premium, which is to remain in the hands of the company, as profits, but the profits, after a few years, can be used by them, to aid in the payment of their annual premium. It is not necessaiy to allude further to the charter, and the rules and regulations of the plaintiffs’ company. Undoubtedly, there are other parts of their documents, which have a bearing upon the question under consideration. Indeed, the whole tenor of them, in connection with the circumstances, under which the note in question was executed, goes to show, that the only object of the note was, to secure the company against losses which might be sustained, while the insured remained a member of the association. The charter authorizes the company to take premium notes. It provides how the losses of the company shall be assessed, upon these notes. These two provisions are followed up in the regulations of the company, which provide that the parties may renew, at the end of the year, the balance of the old notes, not called for, or required by the directors. If it be asked, what power the directors had to call for assessments, the answer is in the charter, “to meet losses.” Indeed, in the argument of the case, counsel seemed to admit, that in regard to all who continued members of the company, and chose to renew their notes from year to year, they had a right to do so. It was the expectation of the company, that the twenty-five per cent, of the premium, which was required to be paid in cash, would be sufficient to meet the ordinary expenses, and pay the ordinary losses; and the seventy-five per cent, would never be required to be paid, except, perhaps, a small balance, which might be due, at the death of the insured, after deducting the proportion of profits that might be earned by the company, and the balance was then only to be deducted from the amount of the policy. In this way, those who paid their premiums in full, by receiving dividends of profits annually, would, in the end, be made equal with those who only paid twenty-five per cent, of their premiums in cash, and the company prominently held this out, as an inducement to persons of limited means, to insure their lives in this association; and it is this principle, alone, which enables them to say, in their prospectus, that it is easy for all who are not paupers to protect their families from want, by insuring their lives with them; and this makes, between all the members, that mutuality in regard to profits and losses, which was contemplated by the charter, and the organization of the company. But if the company can collect just such -notes as it pleases, without first making an equal assessment upon all, it is clear, that there is an end to anything like mutuality. It is not pretended, that they do collect the great mass of their premium notes; but the broad ground is taken, that they can collect, or omit to collect, any or all, as the company pleases ; thus destroying all mutuality, and leaving the members, who have taken their policies, upon the faith that they could renew their notes, from time to time, unless required tp meet losses, to be assessed upon all alike, at the mercy of the persons, who may be officers of the company for the time being. It is insisted, however, that the provisions of the ninth section of the plaintiffs’ charter relate only to the members of the association, and have no application to the defendant, after he ceased to be a member. But the defendant was a member, when he gave the note; and it was the act of giving it, and paying that portion of the premium which is required to be paid in cash, that continued to him his right, as such member; and we look in vain to the charter or regulations, for any different rule or distinction between the notes of the members and those who have ceased to be members. The premium notes all stand upon the same footing, and the character which the charter and the regulations of the association impressed upon them at their inception, must remain, unless there is something in the same documents to alter it. The difficulty under which the plaintiffs’ counsel labor, arises from their looking at the absolute terms in which the note itself is expressed. But if we take it in connection with the charter, and consider, that it was not an ordinary note, and was never delivered, as such, but was delivered. as ,a premium note, under the charter and the regulations of the company, we at once attach to it all the conditions, which are expressed in the charter and regulations. By these conditions, it appears, that it was never an absolute promise to pay, but was a mere security for losses, and merely subject to assessments for losses, and for nothing else; as a conditional security for losses, there was a consideration for it, and, to collect it for other purposes, would operate as a fraud upon the maker. Again, it is said, that the consideration of the note was the premium of insurance on the defendant’s life, for the year it had to run, and that the defendant had the benefit of the insurance for that year, and, in justice ought to pay for the risk. If this was so in fact, we do not see that it would make him liable in any other way than is prescribed in the charter ; but enough has been said, to show, that this is not so. By giving the note, he came under an obligation, to pay such assessment for losses, not exceeding its amount, as might be regularly made by the directors; none such has been made, and so there is no obligation to pay; nor is this unjust, in regard to the other members of the association. By looking at the tables, in the prospectus, it will be seen, that the real risk which the company ran, for the year previous to the time the note fell due, was but a trifle over the twenty-five per cent, of the premium which was paid in cash. If he had insured for a single year, the premium would have been at the rate of about two per cent, on a hundred dollars, whereas, by insuring for life, they charged him nearly five per cent, annually. The additional charge undoubtedly arises from averaging the risk among all the years that such a life is estimated to last. Still, it is no less true, that he paid the company in cash, very nearly the full value of the risk the company ran, before his policy became void by his withdrawal; and it is this fact, which enables the company safely to issue life policies upon the payment of so small a proportion of the premium in cash. If the members withdraw from the association, they have paid in cash the full, or about the full value of the risk which the company had run before the withdrawal; and if they do not withdraw, when the policy is paid, the company deduct the balance of the premium notes, not previously paid by a credit of profits, from the sum insured in the policy. Upon this system, the company, if it has correctly calculated the proportion of the premium which it will require to be paid in cash, is always safe.. Indeed, it is for its advantage, after the life policies have run a few years, that the members should avoid their policies by withdrawal, and obviously becomes more and more so, by the lapse of time. Indeed, so obvious is this, that the regulations say, that the assured can, after a term of years, surrender the policy, and receive its equivalent in value ; and, this seems to us a sufficient answer to the suggestion, that it was a fraud upon the company, to take the benefit of the policy, for the year before the withdrawal, and not pay the premium charged.

On the trial of the cause, a question arose, whether certain declarations, made by the agent of the plaintiffs, previous to, and at the time when the policy of insurance was issued, and the original note was given, were admissible in evidence. It does not appear, from the finding, for what precise purpose those declarations were offered. It is clear, however, that if they were offered, for the purpose of explaining, or in any way altering the terms of the contract, as evidenced by the note, and by the policy and the charter and the regulations of the company, they were not admissible, for any such purpose; but, so far as they went to show, that the note, though not so expressed upon its face, was a mere premium note, such as the company is authorized to take, under the sixth section of the charter, and that it was delivered as such, and therefore liable to all the incidents, and subject’ to all the conditions which the charter annexes to notes of that description, we think the evidence was admissible for this purpose. In this aspect, it went merely to give effect to the note, as an authentic instrument, under the plaintiffs’ charter. It is true, that the operations qualify the absolute terms of the note, and annex conditions and limitations to it; but, this operation is hot the effect of the parol evidence, but of the plaintiffs’ charter; the evidence merely applies the instrument to its proper subject matter. The charter gives the plaintiffs no power to take premium notes or obligations for any other purpose, than as a security for losses ; and when it is shown, that this was a premium note, these incidents are at once annexed to it; and unless effect is given to it, in this way, it becomes a note, given without consideration.

We therefore advise the superior court, to render judgment for the defendants.

In this opinion Chtjkch, C. J., concurred. Waite and Stores, Js., were absent.

Ellsworth, J.

My reflections upon this case have brought me to a different conclusion, from that expressed by my brethren.

Mr. Jarvis, the defendant, applied to the plaintiffs, for an insurance upon his life for $5000, from the 7th of October, 1847. From Carlisle’s tables, (which were used by the company, to ascertain the proper annual premium, to be paid by the defendant,) it appears, and it was agreed, it should be the sum of $245; one-quarter of this, the defendant paid at the time, and gave his note for the remaining three-quarters, payable at the end of the year “without default or discount,” with interest.. If, at the end of the year, he chose to continue a member of the company, by further insuring, he could, at his request, renew the insurance for another year, by paying twenty-five per cent of the premium for another year, and giving a new note, for the amount of the former note, and interest, and the three-quarters of another $245, the premium for the second year; so that the note, now in suit, consists of premium, and interest for two years’ insurance. This premium note fell due, on the 7th of October, 1849, that being the date up to which he had been insured, and after which he did not ask for further insurance. It will thus be seen, that the company had insured the defendant’s life for two years, at the stipulated premium, and how the defendant is to get rid of the payment of this earned money, by his own act simply, I have not been able to discover. The money being earned, can be recovered on the common counts, as well as on the special count.

By the terms of the charter, in the sixth section, the company declare, “that it shall and may be lawful, for the officers of said corporation, to take the notes or obligations of the members, for the amount, either in part or in whole, of the premium of insurance, in proportion to the amount insured.” In pursuance of this provision, the directors passed a by-law, that, in all cases where the premium was over fifty dollars, the insured might pay twenty-five per cent, down, and give his note for the balance, to be paid at the end of the year, with interest; this being the termination of the risk, and if possible, to make this obligation more clear and strong, it was to be paid without defalcation or discount, and might in the mean time be called for, should the company need it to pay losses. It would seem, therefore, that the note in question was understandingly given, as an equivalent for the risk, taken by the plaintiffs for the defendant’s life, for the space of two years. So from the note itself, it seems, the promise is absolute and positive. The money is to be paid in twelve months after date, and sooner, if required to meet assessments.

It is said, however, that the note is not absolute, and is not to be paid, as is written, without defalcation; but is to be paid only upon future assessments. Here, I think, is the great mistake of the defendant’s counsel. The defendant, by separating himself from the company, has deprived himself of the privilege contemplated by this provision of the by-law, so that the by-law is not at all applicable to the case of the defendant. The provision is intended for his benefit, while he remains a member; but he has forfeited that privilege, by his separation. When he ceased to be a member, he ceased to be a subject of assessment, both by the charter and the by-laws; for none but members can be assessed. Were it indeed practicable, to assess those who had been members, for what losses could this be done ? those that accrued during membership, or those which may accrue at any future period, upon policies issued during the time of membership 1

It must be conceded, that if the defendant is not liable, in the present suit, he is not liable at all, and yet he has been insured for the agreed premium of $490, by paying only $122.50. In the same by-law, to which the defendant refers, for his deliverance from this note, we find, what, I am confident, is the only provision applicable to this case. It is this: “ at the end of the year, if the party so desire, he may renew the balance of the old note, not then called for, by paying the interest, adding the next year’s premium, and paying twenty-five per cent in cash, as at first.” This the defendant has not desired to do; but, oh the other hand, has absolutely refused and neglected to do anything ; and yet insists he ought not to pay. He claims that he can not be assessed, because he is not a member, and that he can not be compelled to pay, without assessments. Thus, he would avoid the payment of a note, as fairly earned and due as any that was ever presented in a court of justice. I am for holding the defendant to his agreement. If he will not renew his note, nor pay the stipulated twenty-five per cent., nor find satisfactory security, he ought to pay the note, as it is written: upon his own showing, the assessment provision has nothing to do with the question. And further, the note, under no circumstances, is to be assessed. By the ninth section of the charter, in a ratable proportion the members of the association (not the notes of the members) may be assessed. The notes are held to be due and payable, as written, and, as I contend, are absolutely payable, when and because the members have enjoyed their insurance, and can not alter their obligations, by withdrawing from the company.

It must be further remembered, that these notes, given for earned premiums, constitute the fund of the company, to which the public look for the payment of losses, but they now discover, that these notes mean nothing, and secure nothing. The consequence too, is, that a person may remain a member of the company, and be insured for any time, twenty or fifty years, until his premium note shall amount to thousands of dollars, and then retire from the company, repudiate his note, and if dishonest enough, pursue* the same course with another company.

I would inquire, what is the difference between the person, who pays in cash, when the annual premium is less than fifty dollars, and one who pays partly in cash, and partly in a promissory note, where the premium is more ? Upon the hypothesis of the defendant, the latter may pay one-quarter of his premium and be as fully insured, as if he had paid the whole. This is a gross absurdity, and I can not feel, that it is at all in accordance with the understanding of the parties, or the public, or with any principles of justice or law, with which I am acquainted. From the first breaking of this case, I have been at a loss to learn, what could be urged by the defendant, in favor of this defence.

Something has been said, about the want of mutuality, and of consideration; but no question of this kind can arise ; for the defendant’s life was insured, for two years, at the price agreed, and that surely is mutuality and consideration enough; and I insist, that the defence is nothing but a barefaced attempt to avoid the payment of a clear note of hand. The defendant was fairly and fully insured; and had he died within the two years, his representatives would have been entitled to the five thousand dollars ; and yet he asserts, that though he was so insured, he will not fulfill the contract, as he made it. He will neither renew nor pay his note, nor remain in a condition to be assessed; and, in this defence he has succeeded, as I think, by the prostration of the plainest principles of equity and justice.

Judgment for defendant.