author: Switt, Ch. J. Hosmek, J. GouiiD, J.

text:
    Rotch, administrator of Elam, against Miles.
    Where a ed his wife and children, leaving her keeping a boarding-house, without any other means of support, and did. not return to them, or make any provision for them, and she continued in the business in which she was left, conduct,ng it m a reasonable and proper manner, to obtain a support for herself and children ; it was held, that he was liable for her contracts made in the course of such business.
    THIS was an action of assumpsit, for the use and occupation of a house in Boston, belonging to Elam, the intestate, °
      S¡irp(] and oiTi(])ic'd by Mrs. .Mari) Miles, while she was <he law fii! wife of the defendant. One count of the declaration slated, that on the 1st day oí July. 1814, the defendant was ilist 1 \ iinhbted to said Elam, then in full life, in the sum of 2,1 Cl dollars, 46 cents, for the use, occupation, and rent of a certain house, and the appurtenances thereof, owned by, and belonging to, said Elam, situate in Boston; for that one Mary Writes then was, and for more than twenty years before had been, the law ful w ife of the defendant ; and as such, and as the mother of several children of the defendant, was by him, more than fifteen years since, left to support herself, and to maintain and educate said children ; and in that situation, said Mary, for the purpose of supporting herself and her children, with the know ledge, consent, and permission of the defendant,. and of said Elam, on the 1st of July, 1811, at Boston, entered into the use and occupation of said house, and continued therein nine months, at the stipulated rent of 26.3 dollars, 82 cents, for every term of three months j and at the expiration ol said nine months, said Mary entered, with like consent and permission of the defendant, and of said Elam, into the occupation of said house, for the period of twenty-one months, at the stipulated rent of 200 dollars, for every term of three months ; and said Mary remained so occupying, until the I 3th of January, 1814 ; and the defendant, in consideration of the premises, and that his said wife, by occupying said house as a boarding-house, liad supported and maintained herself and their said children, assumed, Ac. The other counts were general.

      Where a man, absent from his family, liad knowledge, that his wife was keeping a boarding, house, to support herself and children, and did not return to them, or make any provision for them, hut suffered her to continue the business, and renta house for that purpose, without expressing any- dissent, or publishing any prohibition ; and she conducted in a reasonable and prudent manner, i o support the family ; it was held, that he was liable on her contract to pay the rent of such house.

      New-Haven,
    November, 1818.
    The cause was tried at JVew-Haven, August term, 1818, before Swift, Ch. J. and Braviará and Chapman, Js.
    ft was admitted, that Mrs. Miles, then the defendant** wife, had occupied, from the 13th of July, 1811, to the time of Elam's death, on the 25th of October, 1813, the house mentioned in the declaration, at the rent of 800 dollars per annum, in that part of the time which elapsed during the late war, and at 1,000 dollars per annum, during the residue of the time, payable quarter-yearly : that this rent was reason ¡ble j and that; it liad not been paid.
    To evince that the defendant was liable to this demand, [lie plaintiff introduced testimony to prove, and claimed that he had proved, that in the year 1801, the defendant ami his wife, and six children, between the ages of two and fifteen, resided in a house in Cornhill in Bouton, in front of which the- defendant had kept a shoe-store, and that the residue then, and for some time before, had been occupied, by the defendant’s family, and kept as a boarding-house, under the peculiar care and superintendence of his wife; that during the year 1801, the defendant became unable to pay his debts, left Boston, proceeded to Mew-Haven, and thence to St. Croix in the West-Indies, where he continued to reside until the year 1810, when he returned to Mew-Haven, having acquired, in the mean time, a handsome estate; and that during his absence, he had never furnished, nor offered, any support to his wife and family, nor written to her a single letter. The plaintiff also introduced testimony to shew, that in the year 1809, Mrs. Miles hired the house, for the rent of which this suit was brought; that her brother, Dudley Walker, was responsible for the rent, for one year, viz. from the 13th of July, 1809, to the 13th of July, 1810, and for that time only ; and that, at the death of Elam, a large sum was due for rent in arrear, as stated in the declaration.
    It was agreed by the parties, that shortly after the defendant's return to Mew-Haven in 1810, he wrote a letter to Israel Munson of Boston, requesting him to call on Mrs. Miles, and make to her certain propositions to live with the defendant; which Munson did accordingly ; and that the propositions were by her rejected. It was agreed, that the whole of the rent demanded, accrued after the propositions so made ; the first year of such rent commencing on the 13th of July, 1811.
    The defendant introduced testimony to shew, that he left Boston entirely destitute of property, and went to St. Croix ; that, as soon he was able, he remitted money for the payment of his debts ; and that he remitted 1,500 dollars to his nephew, John MlCrackan, for the purpose of educating his youngest son, James, whom he wished to be placed under the care of some respectable clergyman, and afterwards educated at Yale, or Middlebury college; but that his mother, Mrs. Miles, would not consent to this arrangement, insisting that he should remain under her care. The defendant also introduced evidence to prove, that Mrs. Miles had repeatedly declared, that her husband did not possess her affections, and that she would never live with him again ; that the house kept by her was an expensive one, of the value of 25,00® dolhu's ; that she coniimied to occupy iÍ until ¡815; that on Oh* ‘Mili of ././/«, [Sll, In* gave public notice, that lie would sioi hold ¡¡inu-vlf responsible i\>r debis eontracted by her, by .in .:<h ,:-;iwhich he procured to be inserted in t!ie /;,!⅜t't ■:!;c;-/, a paper of general circulation ; and that the h'-paraiio.-s ..-⅛ !-,sm and his wife was pubiicklv and generally known. The defendant also proved, that, in January, 1814, lie obtained a divorce from her, for wilful desertion and total neglect of duty ; and it appeared, that she made no defence to the petition.
    J'i-.ón ¡he cil'eare adduced, and the facts admitted, the sh fi-ndant couiendeiMhal (he credit for the, rent had been given exclusively to Mrs. ¿liles and her brother, without any expectation of resorting to him; that she had deserted and eloped from her husband ; and ihat, of course, the defendant was not chargeable wit!» any debts,contracted by her,even for necessaries : and find her, that the hiring of so expensive an establishment, v.iíh a ⅜ kv of keeping an elegant and fashion-aide boarding-house, vas not a necessary, within tlie intent and meaning of the law.
    Ji was not clainmd by the plaintiff, that the defendant was liable for the rent, or: the* ground of any express contract, otherwise than as he became liable, by the contract of his wife.
    The plaintiff, on his pari, claimed, that it was not proved by the defendant, that Mrs. ¿Ules rejected the offer of 1,500 dollars, for the support of their son James : but that she insisted, that is should he k-'pt for her to draw upon, for his support, with a respectable clergyman near lioston, where he, then was, or that it should he sent to her, for that purpose, as he was a cripple, and she did not intend he should be 1 aken from her immediate cure, while his father was in a foreign country. The plaintiff also claimed, that he had proved bv many witnesses, that the house kept by Mrs. ¿files was suitable and proper, and in no respect too expensive for a good and convenient boarding-house, for the sup-po*-t of herself and children, in a decent and prudent manner ; that the. mauagemmp of it was prudent : and that she indulged in no extravagance, or any kind of unnecessary expenditures, but that, with the most unwearied industry, and the strictest (economy, she had maintained herself and children, and had given them a suitable education, during flic period from 1801 to 1815. He also claimed, that it appeared Iron? ^ advertisement inserted in the Boston Centinel, and ri>-* malner of its insertion, that it was not intended, by the fendant, as a public notice of bis refusal to permit his wife to gain credit on his account, and that, at any rate, it never came to the knowledge of Elam ; and that it was, also, apparent, from the manner in which the proposal was made through Israel Munson, that it was insidious, and was made with intent to draw a refusal from her, to enable him to obtain the divorce, which was pursued precisely three years after-wards, and granted on an ex parte hearing.
    It was admitted, that the defendant, in 1801, left his wife keeping a boarding-house in Boston, w ith six children to sup port, and had never seen her since, or offered to her or them any support, except in the instance, and in the manner, before stated. There was no proof as to the rent of the house in which she resided, when he left her. Nor was there any proof, that Elam had any acquaintance with the defendant; or that he knew7, or was ignorant, that Mrs. Miles was a married woman.
    From the evidence adduced, and the facts admitted, the plaintiff contended, that it might fairly be presumed, that the defendant well knew the manner in which his wife was living in Boston, and supporting herself and children ; that as ho had left her and them, without making any provision for their support, he must be presumed to have made her his agent for that purpose, the obligation of support being perpetual ; and that he might also be presumed to know, that she was pursuing the business, in which he left her, viz. that of keeping a boarding-house — and having such knowledge, and not prohibiting her, he is to be considered as authorizing and approving of her conduct. On these grounds the plaintiff claimed, that he was entitled to recover. He also insisted, that the defendant had utterly failed to prove any desertion or elopement, on the part of Mrs. Miles ; hut that it was apparent he might, at any time, have taken her, and her children, into his protection, for her and their support, as he was bound to do; and that, in truth, the defendant deserted his wife and family.
    The court charged the jury, that if they should find, . that the defendant deserted his wife and children, and left her keeping a boarding-house, without any means for their
      support; and that he never returned to them, or made, or offered to make, any provision for their support; that, the wife continued in the business in which she was left by the defendant, and that she conducted and managed it, in a reasonable and proper manner, to obtain the means of supporting herself and children : or, if they should find, that the defendant had knowledge that his wife was keeping a hoarding-house, to acquire a support for herself and children; and that he did not return to his family, or make, or offer to make any provision for their maintenancej and that he suffered his wife to continue to keep a boarding-house, and to hire the house of Elam for that purpose, without expressing any dissent, or publishing any prohibition; and that the defendant’s wife conducted in a reasonable and prudent manner, in keeping such boarding-house, to obtain the means of supporting her family — then their verdict must be for the plaintiff. But if they should not find these facts ; or if they should find that the wife of the defendant eloped from him j then their verdict must be in his favour.
    The jury gave a verdict for the plaintiff; and the defendant moved for a new trial, on the ground of a misdirection. The court reserved the motion.
    JV*. Smith and Bristol, in support of the motion,
    contended, 1. That the charge was incorrect, in regard to the first alternative, in allowing the wife to carry on the business of keeping an elegant and expensive boarding-house, during the husband’s desertion, and in making him responsible for her contracts in that business. The desertion of the husband., without providing for the support of his wife, renders him liable only for necessaries. 1 Black. Comm. 442. 1 Bar. Mr. 488. ([Wils. edit.) Reeve9s Bom. Bel. 81.
    2. That the charge was also incorrect, in regard to the second alternative, as the facts therein specified arc, almost, hut evidence of the hñsband’s assent, and do not per se render him liable. The court ought, therefore, to have submitted these facts to the jury, and left it for them to say, by their verdict, whether an assent were proved, .llanby v. Scot, 1 Bac. Mr. 489, 490. (Mis. edit.) S. C. 1 Lev. 4. S. C. cited Bul. JV*. T. 136. 1 Bos. ‡ Bull, 22,7. n. (1.) by Bay. 1 Sehv. JV*. P. 288. (Albany edit.) Etherington v. Parrot, 1 Salk. 118. S, C. 2 Ld. Ray. 1006.

      3. That a new trial ought to be granted, on the ground of the entire omission of the -court to submit to the jury tiic defendant’s claim, that the credit for the rent of the .house occupied by Mrs. Miles was given exclusively to her and her brother. If .this point had been found in the defendant's fa-vour, it would have entitled him to a\ verdict. Metcalfe \. Shaw, 3 Campb. 22.
    4. That from, the facts admitted, Mrs. Miles was in a state of wilful separation from her husband ; and, therefore, lie was not liable.

      Baggett and Sherman, contra,
    contended, 1. That the duty of a husband and father to support his wife and children, is of perpetual obligation, and remains upon him, notwithstanding his desertion of his family.
    2. That this duty is paramount to any assent of his ; and is not founded on assent; but results from the marital and paternal relation. He is liable in cases, which, from their nature, repel a presumption of assent; as where he turns his wife out of doors, or by his ill treatment, renders her situation in his house unsafe. Reeve’s Bam. Rel. 80. 81, 2. Hodges v. Hodges, 1 Esp. 441. Harris \. Morris, 4 Esp. 41. Thompson v. Hervetj, 4 Burr. 2177. Stone v. Carr, 3 Esp. 1.

      5. That if the jury found the facts submitted to them, they might well find, that the defendant constituted his wife his agent in those transactions : he is, therefore, bound by her contracts.
    4. That the court submitted to the jury the question, whether Mrs. Miles had eloped from her husband j and they found that she had not. Still from the facts admitted, or claimed to have been proved, by the defendant, were that question now open, it would be clear that she did not elope, but he deserted her; and that his offer to live with her was insidious, calculated only for ulterior proceedings to obtain a divorce.
    5. That, though the contract for rent was not made with him personally, but with her; yet if, from the facts in the case, it was a contract binding on him, he must discharge it, unless it be shewn that Elam agreed not to look to the defendant. Now, no testimony was offered to induce a belief of such fact. The only testimony was, that Elam contracted with Mrs. Miles ; that her brother secured one year’s rent; and that she lived separate from her hush-ami; there being no proof, that fUam bail any acquaintance with the defendant, or knew, or •'.as ignorant, that she was a married woman.
   Switt, Ch. J.

In this case, the court decided, that where ¡ husband deserts his wife and children, and leaves her keeping a boarding-house, without furnishing the means for her support, and docs not return, or make any provision for them, and the wife continues the business in which her husband left her, conducting in a reasonable and proper manner, to obtain a support for herself and children, the husband is liable for her contracts made in the course of such business : uid the question is, whether this decision was correct. The defendant rests his defence on the ground, That the wife, can charge her husband for necessaries only, without his consent; that this contract was not for necessaries ; and that the facts submitted to, and found by, the jury, do not render him liable.

It will be agreed, that when the husband turns his wife out of doors, or drives her from his house by ill treatment, or abandons her w itliout support, or refuses to furnish her a support, she can charge him with contracts for necessaries, without his consent; and that she has this power in no other cases. But the question in this case, depends upon entirely different principles; and if we do not find a case precisely similar in point of fact* yet if we can find acknowledged principles, which will support the decision, it is sufficient: for though we cannot make law, yet where we find known principles, it is always proper to extend them to analogous cases.

The husband is bound by all the contracts of his wife, made with his consent, express, or implied. Where he permits her to engage in, and carry on, any branch of business, the law will presume his assent to all the contracts she makes in the course of it. The husband is liable for all the goods that come to the use of his family, with ids knowledge, though they are not necessaries. When lie goes from home, leaving his family and business in the care of Ids wife, be constitutes her his agent, to manage the concerns entrusted to her, and to provide for his family : and he is liable for the contracts she makes in the course of such business. It would be strange to say, that as soon as a husband has left his bouse, his wife is disarmed of all power of agency ⅛ that she cannot contract debts in the proper management of his affairs ; and can only charge him for the necessaries of life. To reduce her to this degraded condition, he must do some act to abridge her power, and make it known to the world, by a public prohibition. But if he will not take this measure, it is to be presumed, that he empowers his wife to act for him, and take, care of his business during his absence. It is not pretended, that she may embark in new enterprizes, and plunge him into debt, to his ruin : she must conduct in a prudent manner, and make no contracts but what are ne-cess ary, to perform the trust reposed in her. If she is left in the possession of a farm, she may employ labourers to cultivate it, and preserve the crops j but she may not buy new farms. If he should be sued, she might employ counsel, where it might be necessary for his defence; and dreary would the situation of a family very often be, if the wife is not allowed to exercise this power. Suppose a man of large property should unexpectedly be detained from home till the lease of the house where he left them, should expire; will it be pretended, that the family must be turned into the street, because the wife has no power to take another house ?

When the defendant, while lie resided with his family, permitted his wife to keep a boarding-house, he rendered himself liable to fulfil her contracts for that purpose. When he left her, without breaking up his family, without countermanding her authority, keeping a boarding-house, to acquire the means of supporting herself and family, he assented that she should pursue the same business, and do all acts necessary to accomplish that object. This power did not cease by lapse of time : it continued till revoked, or the marriage was dissolved. He might have broken up his family, and have published to the world a prohibition to trust her; he might have placed her on the footing that she could charge him only for necessaries, and have left his family to suffbr the consequences. But he did not choose to do this j he was willing that she should keep the family together, and, if in her power, provide for them a livelihood, by the business she was pursuing. This was placing her and his family in a much better situation than, by a revocation of all power to bind him, to have thrown them on the town. This is im. sistible evidence, that he assented the wife should continue ihf' employment in which lie left her ; ami 1 ho clearest, principles of justice require, that lie should be bnuml by her con-!rac»s. Leaving bis family under such circumstances, hr, posml on him the same obligations as if he had continued to reside with them. They constituted his family ; he was hound to support them ; and every article received to their use, was received to his use. To take a house, on rent, v as necessary in order to pursue the business in which she was left: it came within the scope of the authority delegated to her; and he ought to be bound by the contract.

The superior court, in this case, also decided, that a husband, who has knowledge that his wife is keeping a boardinghouse, to support herself and children, and does not return to his family, and make any provision for their support, but suffers her to continue the business, and rent a house for that purpose, without expressing any dissent, or publishing any prohibition j and the wife conducts in a reasonable and prudent manner, to support the family; — is liable on her contract, to pay the rent of such house. This decision, I apprehend, is warranted by analogous cases.

When a man permits those over whom he has a lawful con-troul, who are under his government, and who are not legally capable of contracting, to carry on business, without expressing any dissent, publishing any prohibition, or doing any act to restrain them, the law will presume his assent, and he will be liable for their undertakings. If a father, with knowledge that a minor son has set himself up in business, permits him to make contracts, without restraint or prohibition, the law will imply his assent to them : for the son, being under age, cannot make a binding contract; it is the duty of the father to restrain him, if he does not intend to be liable for his engagements : if he does not restrain him ; if he does not, by some proper act make known to the world the disability of the son, so as to put people on their guard ; then it will be presumed, that he assents to his contracts. But if the minor son should make contracts without the knowledge of the father, he will not be liable, unless lie makes himself so, by some subsequent act.

If a man knows, that another is transacting business in his name, as a partner, or is making use of bis name, in cxe ■ cuting notes or other contracts, and does not express his dissent, or prohibit it, or take proper measures to prevent the imposition, the law will presume from, his silence, that he has assented to it; and he will be bound by the acts done in his name, though without any authority from him; and this on the maxim, that he who does not prohibit an act when be has the power to do it, assents to, and commands it: nam qui non prohibit, cum prohibiré possit, jubet.

On the same principle, if a man will permit his wife and children to live together in a family, to manage business and to make contracts without interference or restraint, he assents to it, and ought to be bound by their engagements. When the defendant knew the situation of his family, it was his duty to have joined them, asserted his marital rights, and provided for the maintenance and education of his children. If he did not choose to do this, he had the power to prohibit any person from giving her any credit on his account; and the consequence would have been, that he could have been chargeable for no debts for his family, excepting necessaries ; and for these he would most clearly have been chargeable. But he adopts neither of these measures. What is the language of his conduct ? Wishing to avoid being charged with the necessary expense of providing for his family, as he would have been, had lie advertised his wife : and trusting that she would continue to maintain them, if he did not interpose; he made his election to permit her to pursue the employment in which he knew she was engaged. He well knew, that she kept up a family establishment; that she was engaged in business, and contracted debts, for that purpose; and he never countermanded her authority, or expressed any dissent to her proceedings. Silence, under such circumstances, is equivalent to an express consent. It is true, he did not intend to incur a liability for her contracts : nor does the father who permits the minor son to trade, or the man who permits another to use his name : but the law creates the liability, and compels a man to do, without his consent, what he ought, injustice, to do voluntarily. He might have calculated upon the probability, that the expense would be less to permit her to pursue her business, than to interfere, and put an end to it. But let his views be what they would, the consequence of his conduct is the same respecting his liability. And now, since his wife, by uncommon industry and exertion, has, for a long time, nearly maintained the family, and left only a balance for house-rent, it is too late for him to resort to the pretence, that ibis does not come within the legal definition of necessaries, arnl therefore, he \\ ill not pay if. lie should have taken this ground at an earlier period ; and tiren nobody would have been deceived by his conduct.

It may also be said, that where a man of affluence permits bis wife and children to keep up a family establishment, without interposing on his part, it is still to be considered as his family, notwithstanding his absence j and as he is bound to provide for them, his wife must necessarily be his agdnt for that purpose, if no other is appointed j and that every article received to the use of the family, is received to his use, as much as if he were living with them. Where there is an I agreement for a separation, and that known, or for a separate maintenance, this would make a difference; but here there is no pretence of such an agreement.

It is so reasonable and just, that a man should pay the expense of supporting his own family, and not cheat others out of it, that one would hardly imagine any objection would be made to the doctrine I am contending for. But it is said, that this would subject the husband to great hardship, and would enable the wife to contract debts, whjch would involve him in ruin. But this is an unfounded objection. Experience shews, that it is as safe to trust a wife with a power to manage the concerns of her husband in his absence, as any other person $ and if the husband dare not trust her, or does not mean to trust her, it is easy for him to adopt measures, which will put it out of her power to do him any harm. At any rate, the possibility that the power may be abused, is no reason why it should not be implied, or given.

It is also contended, that the court should have left it to the jury as a question of fact, whether the defendant assented to the contract of the wife. But the question before the court, was, whether the defendant was liable in law for the demand, admitting the facts to be true. The court submitted to the jury all the facts litigated by the parties. Whether these made the defendant liable — or amounted to an assent, so that he became liable — was a mere question of law, to be decided by the court, and could, with no propriety, have been submitted to the jury. It is true, the court might have told the jury, if they found the facts submitted to them to be true, they were warranted to presume an assent, which would make the defendant liable. But 1 here could have been no manner oí difference in effect, between such a charge and the presentj for question of law is as properly, and as fairly, raised, in one mode, as in the other.

It is said, when the defendant proposed to his wife to live with her, and she refused, this amounted to a voluntary separation. But this was a secret act, designed to be concealed from the world ; and nothing can be more unjust than to say, that a husband, by such a secret act, can discharge himself from his liability to fulfil the contracts of his wife, when lie holds her out to the world as his wife, and permits her to act in that character.

But here was no agreement for a separation ; and if there had been one, as it was never made known, it could have no effect. If the defendant was desirous of placing his wife on such a footing that he should not be liable for her contracts, he might easily have accomplished it; but it can never be done by private agreement.

It is said, that after the defendant returned from the West-Indies, and offered to live with his wife, her refusal, and her declaration that he did not possess her affections, was a desertion on her part, and an elopement. But it was never before heard, that the mere declaration of a wife to her husband, that she did not love him, and would not live with him, was an elopement. He has the controul of her person, and may insist on his marital rights. Something more than mere words, on her part, is necessary to constitute an elopement.

This fact was, however, fairly put to the jury, on the evidence ; and they have negated it.

It is further said, that the court ought to have submitted to the jury the fact, whether the contract was not made with the wife only, with an understanding not to look to the husband. But the facts conceded, exclude such presumptions. .No such agreement was made. It does not appear, that the intestate, with whom the contract was made, knew that she had a husband. The only question, then, that could arise, was, whether the contract was made under such circumstan-oes as to bind the husband.

Edmond, Seaward and Chapman, Js. were of the same opinion.

Hosmek, J.

The charge to the jury, in my opinion, was altogether incorrect. It embraced principles unknown to the common law, and departed from those wlnich uniformly have been established, A wife, deserted by her husband, and ■without the means of supporting herself and children, is invested with a legal right to take up necessaries, on his credit, for the maintenance of herself and family. Boulton v. Prentice, 1 Selw. N. P. 293. S. C. 2 Stra. 1214. S. C. Bul. N. P. 135. Lungworthy v. Hockmore, 1 Ld. Raym. 444, Elh-erington v. Parrot, 2 Ld. Raym. 1006, S. C. 1 Salk. 118. S. C. Holt, 102. Thompson v. Henrey, 4 Burr. 2177. Harris v. Morris, 4 Esp. Rep. 41. Rawlins v. Vandyke, 3 Esp. Rep. 250. M'Cutchen v. M'Gahay, 11 Johns. Rep. 281. In the term necessaries are comprised, food, drink, clothing, washing, physic, instruction, and a competent place of residence. This is the utmost limit of the common law. Whittingham v. Hill, Cro. Jac. 494. 1 Black. Comm. 466. 1 Mac. Mr. 488.

The principle implied in the charge to the jury, authorizes the deserted wife to commence a hazardous business on the credit of her husband ; and at great expense and risk, to take up necessaries for a very numerous family, that out of tlie profits of her employments she may maintain herself, and her children. The qualifications with which the principle was accompanied, only render it more exceptionable. The interest of the husband and wife equally demand, that she should not be restrained to the employment in which she was left ; but, if she is permitted to undertake business on his credit, that she may resort to that which is least hazardous, and which, at the least expense, promises the most competent support. The second qualification, that the husband’s responsibility depends on the reasonable and proper manner, in which she conducts herself, has no foundation in principle, and would often effectually defeat the obtaining of any credit. The rights of the vendor cannot depend for their validity, on the subsequent act of the purchaser. If they did, no prudent person would run the hazard of trusting to this contingency.

To the charge of the court, there exist many insurmountable objections.

It is a novelty, and introductory of a principle, in subversion of the common law', long, and universally, and indisputably, settled. This observation is all which the case requires. The overturning of principles, used and approved from the mast anticnt period, and the.-removing of established landmarks, is one of the most forcible objections which can be urged. Here I should pause, were I not induced to proceed furl her, out of mere comity to those from whom I differ.

The principle is not necessary to accomplish the object in view. Generally speaking, that credit, which is sufficient for the transaction of business, especially on a large scale, is competent to the acquisition of the direct means of living.

The principle is inadequate to the intended purpose. There is no reasonable certainty, that success will attend the undertaking.

It is a principle highly dangerous. The failure of the wife, which not improbably will result, in the greater number of instances, will be destructive of the husband’s credit, and ruin both him and his family.

It is alarming from its unlimited extent. In illustration of this assertion, I will merely recur to the case before the Court: a wife, accustomed, when living with her husband, to entertain a few boarders in the rear of his shoe-store, is said to be authorized, by his desertion of her, to hire a hotel, at the annual rent of 1000 dollars. By necessary consequence, she is empowered to employ a competent number of servants j to purchase fashionable furniture, for a large mansion j and to supply her table with costly viands, for the accommodation of numerous guests. It is established law, that she cannot borrow money, on the husband’s credit, although she apply it to the purchase of necessaries. Earle v. Peale, 1 Salk. 387. Stephenson v. Hardy, 3 Wils. 388, 9. But, on the novel doctrine of this case, she may contract debts for articles requisite to carry on her business to any amount! A few hundred dollars would be entirely adequate to the annual support of herself and children. Notwithstanding this, it seems that she may onerate her husband with a debt for thousands of dollars, not for the direct maintenance of herself and six children, but to sustain a family ten times as numerous | that out of the expected profits she may acquire a competent livelihood ! The wisdom of the common law strikingly appears, when it is contrasted with a principle pregnant with such mischievous consequences. The common law allows a direct support, while it shields the husband from unreasonable peril and inconvenience. It is safe and salutary, without being penal.

The principle adopted by the court, if admissible under any possible circumstanc es, (which I am clear it is not) could alone be authorized as a dernier resort, after the failure of every attempt to procure necessaries in the ordinary manner. For aught that appears, Mrs. Miles might have supported herself and family, without a recurrence to the dangerous expedient of an expensive boarding-house.

With respect to that part of the court’s charge, founded in the knowledge of the defendant, that his wife was keeping a boarding-house, without his express prohibition, I am of opinion it was manifestly incorrect. No consequence can result against the husband from the knowledge, which would not equally arise from his ignorance, of his wife’s employment. His desertion imposed on her the necessity of acquiring a support ,* and for every legitimate consequence he must be responsible. For consequences not of this description, he can be under no responsibility. The distinction, which the court have thought proper to make, between the knowledge and ignoranpe of the husband concerning his wife’s conduct, is a novélty to which the common law affords no sanction. Besides, if it were of ány avail, it would alone be evidence to the jury of assent on his part, and to them should have been submitted as a fact. In my judgment, however, it is a circumstance, which can be of no possible weight before any tribunal. From the omission of his duty, by the husband, who has deserted his wife, no inference can arise, that be has Invested her with any actual authority.

To the charge of the court there exist other objections. It was contended by the defendant, that before the contract of hiring for the plaintiff’s house, he had offered to live with his wife, and that she had refused his proposal. The proof relative to this proposition, should have been submitted to the jury. Taking it for granted, as I am bound to do, that, it was fairly made and flatly refused, what was the legal consequence i The tables were turned ; the wife from that moment became the deserter, and all the rights of the husband revived. Child & al. v. Hardman, 2 Stra. 875. Tod v, Stokes, 12 Mod. 244. M’Cutchen v. M‘Gahay, 11 Johns. Rep. 281. M’Gahay v. Williams, 12 Johns. Rep. 293. Nor can the plaintiff object, that he was ignorant of the wile’s desertion. “ All persons supplying the necessities of a married woman separate from Iter husband, are hound to make enquiries as to the cause and circumstances of the separations or they give credit at their -peril.” M’Cutchen v. M’Gahay, 11 Johns. Rep. 282. It is no sufficient answer, that the jury were informed, that if the wife had eloped, the defendant was entitled to their verdict. Whether she was in a state of elopement depended on a point of law. They should have been told, that if the defendant had offered to live with his wife, and she had refused, this constituted a desertion on her part.

It was insisted, at the trial, that in point of fact, credit was given to Mrs. Miles exclusively, for the hire of the plaintiff’s house. If this were so, the defendant is not responsible. Metcalfe v. Shaw, 3 Campb. 22. This question should have been submitted to the jury.

On the whole, I am of opinion, that the charge to the jury was incorrect, and that a new trial ought to be granted.

Trcmbuii, Smith, and Petees, Js. were of the same opinion.

GouiiD, J.

declined giving any judicial opinion, having been consulted, while he was at the bar, upon another claim against the defendant, resting upon a similar state of facts, and involving the same principles. His professional advice, in that case, it is understood, was against the claim of his client.

New trial not to be granted.


source: Caselaw Access Project

author: Swot, Ch. J.

license: Public Domain

text:
    Dwight and others against Scovil and others.
    Where a promissory note was made by one ⅞⅛’ sed by an-otlier tiie acting part-being the** same per-held that*18 this fact did not excuse the want of due presentment for payment to the makers, and notice of non-payment to the indorsers.
    THIS was an action brought by the plaintiffs, as indor-sees of a promissory note, made by Lamson & Clark, against the defendants, merchants in company, under the firm of Scovil, Lamson & Co., as indorsers. The declaration contained three counts. In the first, it was alleged, that payment of the note was demanded of the makers, and notice non-payment given, in due. season, to the defendants. In the second? there was no allegation of a demand of payment, until after the note fell due. The third was the usual money count. The declaration averred, that TV. K. Lamson, of the firm of Lamson & Clark, was the same TV. K. Lamson, who was a member of the firm of Scovil, Lamson & Co.

      The use of due diligence, by the holder, in making demand and giving notice, is a condition precedent in the contract of indorsement.

      New-Haven,

    November, 1818.
    The cause was tried at Mew-Haven, August term 1818, before Swift, Ch. J. and Brainard and Chapman, Js.
    It was proved, that the note was made by Lamson & Clark. payable to the defendants, Scovil, Lamson & Co., and by them indorsed to the plaintiffs ; and that IT. K. Lamson, one of the defendants, was a member of both firms ; as stated in the declaration. The note was payable on the 4th of July. It was not paid, nor was any demand of payment made, by the plaintiffs, of Clark & Lamson, on that day. On the 5th of July, the plaintiffs wrote a letter, addressed to the defendants at Waterbary, informing them, that the note was not paid, and that they should look to them for payment; which letter was put into the post-office, at Mew-Haven, where the plaintiffs resided, on the same day, and was received, by the defendants, in due course of the mail. The defendants urged, as one ground of defence, that as no demand of payment was made when the note became payable, the plaintiffs were not entitled to recover. The plaintiffs insisted, that as W. K. Lamson was an acting partner in both co-partnerships, no demand of payment was necessary. The court charged the jury, that as no demand of payment was made of the makers, on the 4th of July, the plaintiffs could not recover, and directed the jury to find a verdict for the defendants ; which they accordingly did. The plaintiffs moved for a new trial, on the ground of a misdirection j and the court reserved the motion.

      Daggett and M. Smith, in support of the motion,
    contended, 1. That upon general principles of law, whenever a fact is equally within the knowledge of both parties, notice is not necessary. Com. Dig. tit. Pleader. (675.)
    2. That as the acting partner in both firms, in this case, was the same man, any fact known to him, was, in contemplation of law, known to each company ; the knowledge of one member of a company being the knowledge of ail. Port-house v, Parker &; al. I Campb. 82. Mderson v. Pope, t

      Gampb. 404. n. Crowder ‡ al. v. Shee, 1 Campb. 437* 1 Conn. Rep. 371. Com. Big. tit. Condition. (L. 9.).
    3. That where the maker and indorser are the same,or where it is the duty of the indorser to provide for the note, — ■ demand upon the maker, and notice to the indorser, are not necessary. The reasons, on which the general rule of law requiring demand and notice is founded, are, that the indor-ser may secure himself by resorting to the maker, or that the indorser, from the nature of his undertaking, is responsible only on the failure of the maker to pay. These reasons fail, in the cases supposed ; and therefore, in such cases, the general rule has been dispensed with. Mainxvaring <$• al. v, Newman, 2 Bos. ⅝ Pull. 120. Bond <$• al. v. Farnham, 5 Mass. Rep. 170. Corney v. Da Costa, 1 Esp. Rep. 302.

      Staples and Bronson, contra,
    contended, l. That the notice in this case was insufficient. The notice actually given by the plaintiffs, being out of season, is not relied on. The only questions, then, on this part of the case, are, whether Lam-son’s knowledge of the fact of non-payment, which he is supposed to have as a member of the house of Lamson 3f Clark, can be imputed to him as a member of the house of Scovil, Lamson Sc Co. so as to affect the latter house with the same knowledge j and if it can, whether such knowledge is tantamount to legal notice. As to the first of these questions, it is sufficient to observe, that the affirmative is supported by no adjudged case $ and the reasoning in favour of it is extremely artificial, and Corresponds, in no degree, with the plain common sense which pervades this title of the law. But yield the point 5 still it is clear, in answer to the next question, that the indorser of a note is entitled to something more than mere knowledge of non-payment. Before he can be subjected, the holder must discharge his duty ; he must, according to the circumstances of the case, give personal notice, or send notice by the post. Nicholson v. Gouthit, 2 H. Black. 609. Esdaile ‡ al. v. Sowerby ⅜* al. 11 East 114,117.
    2. That a demand of payment, of the makers, when the note became payable, was indispensable. The making of such demand was a part of the diligence, which the holders were bound to exercise, and was a condition precedent to their right of recovery. Chitty on Bills 260. Heylyn Sp al. v.
      Adamson, 2 Burr. 674, 076. Mun roc §■ al. v. Easton, 3 Johns. Co. 75, 6. Berry v. Robinson, 9 Johns, Rep. 131, ,3. May v. Coffin, 4 .Mass. Hep. 347. Elf or d ⅜ al. v. Teed, 1 .Mau. k Seho. 28. Anderson v. Drake, ¡4 Johns. Hep. 114. These authorities are clearly decisive, unless the circumstances of the present case form an exception to the general rule. If they do form such an exception, it-niust be on the ground, that the non-payment of the note by Lamson & Clark was the default of each ; and the default of Lamson, as a member of that firm, became his default as a member of the firm of Scovil, Lamson k Co., the default of the firm, in one instance, being the default of each member, and the default of one of the members, in the other instance, being the default of the firm ; and then that Scovil, Lamson & Co., being thus in default, themselves, have no right to insist, that the holders shall do their duty ! If this reasoning requires an answer, it is sufficient to remark, that it is a part of the contract implied in the act of indorsement, that the indorser shall be liable only in the event of a demand by the holder, or due diligence to make one $ and to subject the indorser,.without performance of the condition, requires a new contract. If the plaintiff has not done what is essential to give him a right of action, it will be of little avail to shew, by any refinements of logic, that the defendant is chargeable with default.
   Swot, Ch. J.

In all cases of accepted bills and indorsed notes, it is necessary for the holder of the bill, and the indorsee of the note, to present the bill to the acceptor and the note to the maker, when they fall due, and demand payment. It is true, that there may be a waiver, by some subsequent act; as a promise to pay : but this is always deemed equivalent to presentment and demand.

The reason of the rule is, that the engagement of indorser is conditional: he promises to pay, on conditio _ that the holder uses due diligence, and the acceptor or maker fails to pay. This is a condition precedent ; and the holds is bound to perform it. It has always been held, that insu' vency is no excuse ; for the acceptor or maker may ha* friends to aid him ; or he may have funds especially prow ded for that purpose ; so that it can never be known, hut that the note or bill would have been paid, if duly presented. Besides, non-payment is a matter susceptible of easy proof, while insolvency is often a complicated question ; and it i; fop the interest of parties, where it can be done, that their rights should bo made dependent on matters which will nof be the subject of contest in point of fact.

The circumstance, that one of the defendants was a member of both the companies, who made and indorsed the note, can make no difference ; for each company is to be considered as distinct persons, with different funds and liabilities | and there is the same reason for presentmeftt and demand, as if the companies were wholly different. If the companies should reside in different and distant places, the drawing of bills on each other mightbe convenient in the course of their business $ but on the principle contended for, the company drawing the bill might be subjected to pay it, because one of the partners belonged to both,companies, when the company on whom it was drawn was solvent, and would have paid the bill, if it had been presented.

It is said, that notice to one partner, is notice to all 5 and that here, one of the defendants knew, that the note was not paid. It is true, that one of the defendants must, in legal consideration, have known, that the note was not paid 5 but he equally well knew, that the note, when it became due, had not been presented to the makers, and payment demanded ; he knew the fact that exonerated the defendants from all liability on their indorsement to pay the note j and it would be j trasige logic to say, that this knowledge rendered the defendants liable.

The other Judges were of the same opinion.

New trial not to be granted.


author:
SwWt, Ch, J.
      Goult), J.

text:
    Tracy, administrator of Margaret Backus, against Strong, administrator of James Backus :

      New-Haven,

    November, 1818.
    in error.
    THIS was am action of debt, on a bond, executed by James Backus, on the 29th of December 1803, for 3000 dollars, payable to Margaret Backus ; to which bond there was the following condition, viz. “ That whereas the. said James Backus has agreed, in consideration of the said Margaret’s quit-claiming to him all her right to the estate of the late Elijah Backus, Esq., to pay to her, annually, on the first day of May, during her natural life, the sum of 185 dollars, and to procure for her, at any time, within'twenty days after demand shall be made by her, for that purpose, such other and additional security, either personal, or by mortgage of real estate, for the payment of the said annuity, as shall be. deemed just and reasonable : Now, therefore, if the above bounden James Backus shall well and truly pay, or cause to be paid, to the said Margaret Backus, on the said first day of May annually, the said sum of 185 dollars, and procure, if requested thereto by her, the security above agreed on, then this obligation is to be void, otherwise to remain in full force.” ,
    The defendant pleaded, that said Margaret continued in life until some time in the Jlutumn of the year 1813, and then died at Norwich ; and that before her decease, the defendant’s intestate had fully paid to her, on the first day of May in each year, the annuity then due, until the year 1812; which payments were acknowledged by her, and endorsed on the bond; that in the course of the year 1812, he paid sundry sums, amounting to 160 dollars, on account of the payment, which.became due on the first day of May in that year ; that on the 15th of May 18IT, a further sum of 211 dollars, 7 cents, was applied towards the payment of the arrears then remaining due ; and that “ on t lie 5th day of January 1818, before the commencement of the plaintiff’s suit, the defendant offered and tendered to the plaintiff the further sum of 59 dollars, in full of the amount due to him, in his said capacity, on said bond, for the arrears of said annuity ; which sum, so tendered, was the full amount due for the arrears of said annuity, on said bond, on said 5th day 0f January 1813, and the full amount due to the plaintiff on said bond.”

      By the common law of this state, a tender after the day of payment, if properly pleaded and pursued up, is a defence to the action.
    A tender of the sum justly due by the condition of a bond, after a breach, though less than the penalty, is sufficient
    Where a sum of money was secured by bond, to a widow, in consideration of her relinquishing her right of dower, payable on a certain day in each year, during her life: it was held, that this was an annuity, not subject to apportionment,

      The plaintiff, in his replication, traversed so much of the plea as relates to the tender; on which issue was joined, to the court.
    The court found the issue in favour of the defendant, and thereupon rendered judgment for him to recover his costs. The plaint iff then brought the present writ of error, alleging that the court ought to have rendered judgment for him, notwithstanding the facts found, on the ground that the plea was insufficient.

      Lanman and Brainard, for the plaintiff in error,
    contend, ed, 1. That after a breach of a penal bond, no tender short of the whole penalty, will constitute a bar to the action. By the breach, the whole penalty is forfeited ; and before the statute of 8 & 9 W. S. c. 11. s. 8. in England, or the statute tit. 6, c. 1. s. 8. in this state, the only relief for the obligor was to be sought in equity. Since those statutes, judgment is still entered up for the whole penalty, which is considered the debt in law j but the court, by virtue of the equity powers given them, may, on motion, reduce the amount for which execution shall issue to the sum justly due, or order the surplus to be refunded. If the defendant wishes to avail himself of these provisions, he must make his application for that purpose, in the mode prescribed. Marsen v. Touched, 2 Black. Rep. 706. Ogilvie v. Foley, 2 Black. Rep. 1111. Wilde v. Clarkson, 6 Term Rep. 304. Judd v. Evans, 6 Term Rep.. 399,
    .2. That admitting a tender of the sum due by the condition to he sufficient, with respect to the amount ; yet the tender must be made on the day, on which the money was payable. At coqimon law, a tender, or bringing money into court,
      after the day, will not avail as a bar, or to stay proceedings. Mac. Mr. tit. Tender. P. 4.
    3. That the tender, in this case, was insufficient, because it was short of the sum justly due by the condition : it was only of the sum due on the first of May 1813, and interest, including nothing for the fraction of a year that the annuitant lived after that time. This annuity was secured to Mrs. Backus in lieu of her dower : it was a provision for a w idow, during her life. Now, it is an established rule, that wherever an annuity is intended as a provision for a widow, a wife living separate from her husband, an orphan, or an infant, it is to be apportioned up to the happening of the event, on which the annuity is to cease. Howell v. Han forth, 2 Black, Rep. 1016. Hay v. Palmer, 2 P. Wms. 501.
    4. That, at any rate, the debt secured by this bond, is not, technically, an annuity ; and ought not to be subject to the rules of the English courts regarding annuities, w hich are founded in policy rather than in justice.

      T. S. Williams, contra,
    was proceeding to shew, that in this state, a tender of the sum justly due by the condition of a bond, though not made until after the day of payment, w as a bar to the action ; when he was stopped by the Court, who said, they had no doubt on that point.
    He then contended, 1. That this was an annuity, within the meaning of that term in the English courts, both of law and equity. 2 Black. Comm. 40. Price v. Williams, Cro. Elia. 380, Pearly v. Smith, 3 Mk. 261.
    2. That where a sum of money is to become payable on a. certain day, or on the happening of a certain event, nothing is due until that day arrives, or that event happens. This general principle, founded in justice, and conformable to the understanding of the parties, is strictly applicable to annuities, and has commonly been so applied. Price v. Williams, Cro. Elia. 380. Pearly v. Smith, 3 Mk. 261. Rashleigh v. Master, 3 Bro. Chan. Rep. 99. 101. Jlnderson v. Dwyer, l Scho. <$• Lef. 301. 303. Wood v. Partridge, 11 Mass. Rep. 488. 493. The only exception is where the annuitant is a feme covert, or an infant, and the annuity is intended for the daily maintenance of the annuitant : in that case, courts of equity have allowed an apportionment. Hay v. Palmer, g P. Wms. 501. Howell v. Hanforth, 2 Black. Rep. 1016. But this annuitant was entitled to no peculiar privilege,. She was a feme sole, and stood upon the same footing with every other person sui juris.

         That section provides, That “ if there be any matter of apparent equity, as upon the forfeiture of a bond or obligation, Or breach of covenant without damage, or the like, the judges shall determine such matter of equity. And if upon a bond with conditions, the breach of which may happen at several times, a suit be brought on the first breach of such condition, the court, upon the forfeiture of such bond, found on trial, demurrer, confession, or otherwise, shall, on motion made for that purpose, proceed to consider what is due in equity on such bond, at that time, and enter up judgment for the same, with costs, and award execution thereon.”.

   SwWt, Ch, J.

Originally, courts of law, on penal bonds, could render judgment only for the penalty ; for that was considered to be absolutely forfeited, by non-payment at the day. But equity always relieved on payment of the sum actually due : and now, by statute, courts of law are vested with the same power, and may determine any matter of apparent equity, as upon the forfeiture of a bond, or obligation, or breach of covenant without damage, or the like. Of course, a penal bond is on the same footing as a single, bill or note j the court can, in the same manner, render judgment for the sum really due; and on the general issue, the jury are to find a verdict for the debt, and not for the penalty.

It has been insisted on, that this, by the statute, can he clone only on motion to the court to chancer the bond ; and that the whole penalty is forfeited at law. But this clause of the statute relates only to the case of bonds with conditions, where the breach may happen at several times, and the suit is brought for the first breach only, and where Ibero may be a subsequent breach, for which the party has a claim. But this suit is brought for the last breach, and no further suit can ever be brought.

By the common law, the payment of a debt must he on the day it falls due j and a tender cannot be made at a subsequent time. But in this state, from time immemorial, the practice has been adopted, that wherever a certain sum of money or debt is due, the debtor can make a tender of it, though the day of payment has elapsed. If the tender is made after suit brought, costs must be included to the time. This may be considered as a part of our common law ; and is too reasonable to be departed from. In England, in lieu of this, they permit the party to bring the money, witii the costs, into court 5 and if he brings sufficient, the plain I iff proceeds at his peril j if he does not recover more, he is liable to pay costs.

It appears, that the bond in suit was for the payment of a certain sum annually, on a given day. It comes clearly within the definition of an annuity. Where a certain sum is due on a future given day, no part is due till that day j and it is fully settled by ail the authorities, that there is no apportionment of an annuity.

Goult), J.

The objections to the judgment below are, first, that the tender pleaded was after the day, appointed for payment ; and secondly, that the sum tendered was too small. But tender after the day, if properly pleaded, and pursued up, by bringing the money into court, is a strict legal defence ; not subject, (like the proceedings under the common rule for bringing money into court,) to terms, op to any discretionary controul by the court. The time of the tender, therefore, taken by itself, can, by no possibility, furnish any ground of objection.

As to the amount tendered, the objection first taken, is, that, upon the non-payment of any one instalment, the obligee was entitled to judgment for the whole penalty — > that the judgment might remain a security for all subsequent instalments : and that the tender ought, therefore, to have covered the whole penalty. But whatever might be the measure of the amount, for which judgment might have been given, under other circumstances; the case, circumstanced as it is, is clearly not open to this objection : since the in-stalment, for which the action is brought, is the last, that ever accrued, or could accrue. For the annuitant died, before the arrival of any subsequent pay-day, and the tender was made after her death. It was a matter of certainty, therefore, riot only when the judgment below was rendered, but at the time of the tender also, that no further instalment could, by possibility, accrue. And it would have been useless, and worse than useless, to enter judgment for a larger sum, than execution could issue for, when there remained nothing, to be covered by the excess.

Under these circumstances, the rule respecting the amount, to be recovered, for the instalment in question, must be the same, as if the bond liad been conditioned for the payment of a single liquidated sum, instead of several successive instal-ments. But in that case, nothing is better settled, in our law, than that the obligee can recover only so much, as appears, from the terms of the condition, to be due. Indeed, under the statute of this slate, (tit, 6. c. 1. s. 8.) upon which the question finally depends, I am not aware of any case, in which the obligee in a penal bond, is entitled to the whole penalty, as such. It is true, that where a gross sum, in the form of a penalty, is really, in the nature of assessed damages, he may recover the whole ; but in such a case, it is not regarded, as a penalty. And for this very reason it is, thai the whole sum is recoverable. For a bond in a penal sum, to secure the payment of a less sum, named in the condition, is, under our statute, precisely the same thing, in effect, as a single bill, or covenant, for the payment of the less sum.

According to this rule, the plaintiff was entitled, at the time of the tender, to no more than was then due, according to the condition of the bond. And what was then due, may be ascertained, by determining what was due, at the annuitant’s death. Now it is an undisputed general rule of law, that when a given sum is to accrue, as a debt, on a given day, no part of it is due, till the day arrives. The whole sum accrues, on that day ; and there can be no apportionment of it. This is one of the most familiar rules, in the law of rents, and annuities : and if it is applicable to this case, there was due to the plaintiff, no more than the sum tendered,

But it is contended, that this case is within an exception to the general rule ; and that the plaintiff was entitled, in addition to the instalment, which became due, on the first of May, 1813, to a fractional part of another instalment, proportioned to the time, which intervened, between that day, and the death of the annuitant. The exception, upon which this claim is founded, was introduced by courts of equity, and obtains only, where an annuity is payable, by way of maintenance, to an infant or feme covert — who, by reason of their legal disabilities, might be unable to procure credit for necessaries, if payment for them depended upon their living till the annuity should, by the common rule, become payable. This case, therefore, does not fail within the exception. The annuitant was not a feme covert, w hen the bond was given, and maintenance was out of the question. The nature of the transaction is disclosed in the condition. Having an estate in dower, she disposed of it, in consideration of the annuity ; which is, therefore, neither more, nor less, than the purchase-money for an estate sold.

The other Judges were of the same opinion.

Judgment affirmed,


author: Swift, Ch. J. Hosmrr, J. Goitid, J.

text:
    Story against Barrell and Gilbert.

      New-Haven,

    November, 1818.
    THIS was an action of assumpsit, describing the defendants as late copartners in trade, under the name and firm of Nathaniel Gilbert & Co. The declaration contained four counts, the second of which was general, stating, that at Norwich, on the 2d of July 1812, the defendants became indebted, as traders in company as aforesaid, to the plaintiff, in the sum of 875 dollars, for so much money, at that time, had and received to the use and benefit of the plain!iff. and in law liable to pay to him said sum ; and that being so liable, and indebted, they did, in consideration thereof, at said Norrvich, afterwards, to wit, on or about the first day of March 1817, assume upon themselves, and to the plaintiff faithfully promise, to pay to him the sum of 375 dollars, in a reasonable time thereafter, when thereto requested. The writ was dated February 14th, 1817. ^

    g-rounYof10 arrest>that me pronuses ⅛ ¡m ac.ion of mdeba“tus alleged to lwve been made on a day subsequent to the date of die writ.
    A partnership, consist-note against December 31st, 1811, for the pay-merit of 1074 dollars> and interest. Un tbe 2d of July 1812, C. paid to B. 375 dollars, which B. promised to indorse on C’s note, but neglected so to do. On the 20th of December 1816, 'after dissolution of the partnership of A. and B, A. gave a writing, signed with his individual name, to C., acknowledging, that he had retained in his hands the money of C. to the amount due on the note, and promising to refund-to C. such sumas, in a suit then pending on the note, the court should find to have been paid thereon. The money so retained.had been received by A., as a member of the partnership of A. and B., and for their use and benefit. The suit on the note was withdrawn. C. then brought his action of indebitatus assumpsit for money had and received, against A. and B. jointly, to recover back 375 dollars so over-paid. Held, 1. That the action was well brought; 2. That parol proof of the payment to B. of the 375 dollars, with his promise to apply it on the note, was not precluded, in this action, by the 2d section of our statute of Frauds : 3. That the writing given by in December 1816, was admissible in evidence, and properly constituted a part of the plaintiff’s case ; and that the plaintiff was not precluded from recovering back the money paid under such circumstances, on the ground that the payment, at the time, was voluntary.

    On the trial at New-London, January term, 1818, before Swift, Ch. J. and Brainard and Goddard, Js., the plaintiff J _ * offered in evidence the following writing, made and signed by Gilbert only, after the dissolution of the copartnership between him and Barr til : “ I, Nathaniel Gilbert, acknowledge that I have retained in my hands of the money of Samuel Story, jun. [the plaintiff] the amount of a note, and the interest thereon, up to the 20th day of December, 1816 j which note is signed by said Story, dated December 31st, 1811, for the sum of 1073 dollars, 94 cents, on interest from date, payable to Nathaniel Gilbert & Co., and is now in suit: and whereas the said Story claims to have paid a part of said note, which has never been indorsed, I do hereby agree and promise, whenever said suit shall be finally determined, to pay said Story such sum as the court shall find to have been paid on said note, by said Story, and interest thereon to the time of the judgment of said court : and I do agree and promise to save said Story harmless against all claims the late firm of Nathaniel Gilbert & Co., may have against the said Story, by virtue of the judgment which they maj obtain on said note against him, excepting the cost which shall have accrued in said suit after this date. It is agreed by said Story, that this writing shall not be used, or exhibited in evidence, in the trial of said suit on said note. Norwich, 20th December, 1816. _ Nathaniel Gilbert.” To the admission of this writing the defendants objected, because it was the act of one of the partners alone, after the dissolution, and could not be received to affect the other partner. The court overruled the objection, and admitted the evidence.
    The plaintiff also offered the testimony of Elijah Pitcher, and others, to prove, that on the 2d of July 1812,* the plaintiff paid to Barrell, one of the defendants, the sum of 375 dollars, which he then promised to indorse on the plaintiff’s; note to Nathaniel Gilbert & Co., of the 31st of December, 1811: to the admission of which, the defendants objected, on the ground that it was within the statue of Frauds and Perjuries, and did not tend to prove the issue. But the court admitted it.
    The plaintiff having offered no other proof of any express promise ; it being admitted and proved, that after the dissolution of the copartnership, vi». on the 20th of December, 1816, the balance of the plaintiff’s note, of the 31st of December, 1811, was paid, by the plaintiff, to Gilbert, as one of the firm of Nathaniel Gilbert & Co., and for the use and benefit of that firm, in pursuance of Gilbert's agreement contained in the writing given by him of that date; and the action on the plaintiff’s note being withdrawn, in January 1817 ; the defendants prayed the court to instruct the jury, that these facts did not, by law, raise a promise against both the de - fendants, as alleged in the declaration. The defendants further prayed the court to instruct the jury, that although they should find the sum of 375 dollars to have been paid on the 2d of July, 1812, as claimed by the plaintiff; and although they should find, that the balance of the plaintiff’s note was paid to Gilbert, as one of the firm of Nathaniel Gilbert & Co., for the benefit of the firm, after its dissolution j yet that, by law, the plaintiff could not recover upon a joint promise against the defendants, as laid in the declaration. The court charged the jury as follows: “ The plaintiff, in this action, seeks to recover from the defendants 375 dollars, which, he says, he paid on the 2d of July 1812, to apply on a certain note, or contract, dated the 31st of December, 1811, and which the defendants neglected to apply. The plaintiff contends, that he has fully supported his claim. On the part of the defendants, it is contended, he has utterly failed to prove that the 375 dollars, ever were paid, by the plaintiff to the defendants. This is a question of fact for you to decide; but however this fact may be found, the defendants contend, that the testimony offered by the plaintiff is not admissible to support either count in the declaration, and pray the direction of the court to the jury on this point. On this point, the "ourt is of opinion, and the law is so, that the, plaintiff’s testimony is admissible evidence in support of the second count only, in the plaintiff’s declaration, being the count for money liad and received to the plaintiff’s use. The defendants contend further, that the plaintiff’s claim, as set up, even if proved, comes within the statute of Frauds, and prays the court so to instruct the jury. On this point, the court is of opinion, that the statute of Frauds has no application to bar ;he plaintiff’s right to recover in this action. The defendants further contend, that the agreement offered in evidence, by the plaintiff, and signed by Nathaniel Gilbert, dated 20th December 1816, shews, that the money due by the original contract has been paid and satisfied, by the plaintiff, and that he is now, by law, precluded from a recovery in this action ; and pray the court so to instruct the jury. On this point, the court is of opinion, that said agreement, accompanied with the other testimony offered by the defendants, does not, if found true, shew, that the plaintiff has paid and satisfied his original note, or contract, of 31st December 1811, in such manner, and under such circumstances, as to preclude his right of recovery in this action, provided he substantiates the claim set up. You will then attend carefully to the testimony, and return a verdict on one side or the other, according as you shall find. If you find for the plaintiff, your verdict will be, that the defendants did assume,” &c.

      “ The. defendants also contend, that from the agreement signed by Nathaniel Gilbert alone, dated 20th December 1816, and offered in evidence by the plaintiff, it appears, that no right of action, previous to that time, could have existed in favour of the plaintiff, for the non-application of the money to be paid on the contract ; that at that time, they have proved the copartnership was dissolved ; and that no act of Nathaniel Gilbert alone, at that time, could raise a joint promise ; and that, unless the joint promise, as laid in the declaration, be proved on the trial, to have arisen, or been made, before the dissolution of the copartnership, and the jury so find, the defendants will be entitled to a verdict: and they pray the court so to instruct the jury. On this point, the court is of opinion, and the law is so, that although, if the jury find the partnership was dissolved, Nathaniel Gilbert could not, by his individual act, make a new joint contract to bind the firm j yet, as this action, in the second count, and to which the evidence applies, does not proceed on the ground of an actual express promise, if it be stated in the declaration and shewn, that the money was received by the firm during the copartnership, and that the indebtedness remains, a joint promise may be alleged and proved, at any time, while the joint indebtedness exists.”
    The jury having found a verdict for the plaintiff, the defendants moved for a new trial, on the ground of a misdirection, and the admission of improper evidence. They also moved in arrest of judgment, on the ground, that the promise laid in the declaration was after the date of the writ. Both these motions were reserved, by consent of parties, for the consideration and advice of the nine Judges.

      Goddard and Staples, for the defendants,
    contended, 1. That the declaration was bad, because the cause of action was laid after the date of the writ. 1 Roll. Mr. 792. pi. 12. Williams v. Bentkley, Moore, 598. Venables v. Daffe, Garth. 113. Buckly v. Williamson, Cro. Elia. 325. This defect is not cured by verdict ; and is ground for a writ of error. Dickinson v. Plaisted, 7 Term Rep. 470. Cheetham v. Lewis, 3 Johns. Rep. 42. Waring v. Yates, 10 Johns. Rep. 119. 1 Chitl. Plead. 266. The promise laid on the 1st of March 1817, must now be taken to be an express promise j and it is the only promise in the declaration, of which any breach ⅛ alleged.
    2. That the parol testimony of Pitcher and others ought to have been rejected, as it was offered to prove a contract or agreement made more than three years before the commencement of the suit, within the second section of the statute of Frauds. It is not a sufficient answer to say, that this action is not brought on any express contract or agreement, but «pon a promise which the law implies from certain facts : for those facts, in such case, constitute the foundation of the action ; and to admit parol evidence in support of them, after the expiration of three years, would produce all the danger of fraud and perjury, which the statute was designed to guard against.
    3. That the payment to Barrell, was made voluntarily, in satisfaction of a debt; and for that reason, cannot be recovered back in indebitatus assumpsit, Marriott v, Hampton, 2 Esp. Rep. 546. S. C. 7 Term Rep. 269. 1 New Rep. 263, d. e. (Day’s edit.) The evidence, therefore, to prove such payment, was irrelevant, and ought not to have been received.
    4. That the writing signed by Gilbert, after the dissolution, ought not to have been received to affect his partner ; and that the direction to the jury, to find a joint promise, was incorrect. This was, on the face óf it, the individual act of Gilbert. He had no power to bind his late partner. Mel ⅜ al. v. Sutton, 8 Esp. Rep. 108. Lansing v. Gaine and Ten Eyck, 2 Johns. Rep. 300. It does not appear, that Harrell had any thing to do with the settlement of the company concerns, after the dissolution. The joint indebtedness of Barrell and Gilbert, claimed by the plaintiff, never existed.

      -Lawman and Bminard, contra,
    insisted, 1. That the declaration was well enough. In an action of general indebitatus assumpsit, not brought on a written contract, the time of the promise is immaterial. 1 Chitt. Mead. 258. In this case, the facts, stated as the ground of action, and from which the law raises the promise, were before the commencement of the suit. Further, the time of the promise alleged, was before the return-day of the writ, and before the sitting of the court j which is sufficient. Pugh v. Robinson, 1 Term Rep. 116. At any rate, the defect was cured by verdict. Sorrel v. Lewin, 3 ICeb. 354. Blackall v. Eale, Carth. 389. Bemis v. Faxon, 4 Mass. Rep. 263. Mlaire v. 0aland, 2 Johns. Ca. 52. 56.
    2. That the testimony of Pitcher and others was properly admitted. The 2d section of our statute, entitled “ An act for the prevention of Frauds and Perjuries,” is, in its nature, a statute of limitation, and is applicable only to an express contract or agreement^ on which the suit is brought. To make it applicable to this case, would be to declare, that the general action for money had.and received, could never be sustained, after three years from the time the right of action accrued j an idea perfectly novel.
    3. That the writing signed by Gilbert, was properly admitted : first, to shew that the payment first made was not applied on the contract; secondly, to shew that there was no voluntary settlement, or, if there was, that the exception on that ground was waived ; thirdly, to repel the claim of the defendants, that the right of action was barred, as the writing contained an acknowledgment of one partner, which, though after dissolution, is sufficient to take the case out of the statute. 6 Johns, Rep. 267.
    4. That the charge was right, as the law, from the facts, implies a joint promise.

       1 Stat. Conn. tit. 75. s. 2. This section, which has no corresponding provisions in the English statute 29 Car. % c. 3. is as follows : “ That no suit at law or in equity shall be brought or maintained upon any contract or agreement, that shall hereafter be made, and not reduced to writing as aforesaid, but within three years next after entering into, or making the same ; or on any such contract or agreement heretofore made, [i. e. before May 1771, the timé of passing the act] but within three years next after a right of action thereon sball accrue ; or if such right of action hath already accrued, such suit shall not be brought but within three years next after the first day of June, one thousand seven hundred and seventy one : Provided, that nothing in this act contained shall extend to any act ios of book-debt.”

   Swift, Ch. J.

In this case, it appears, that Barrell and Gilbert, the defendants, had a note against Story, the plaintiff, to be paid out of the avails of a certain vessel, when sold, on which the plaintiff claimed, that he had paid 375 dollars to Barrell. Gilbert, on the sale of the vessel, had in his hands sufficient money to pay the whole note $ and after the dissolution of his partnership with Barrell, agreed with the plaintiff to retain the amount of the note, and promised in writ-ingto reruml to Iiim such sum as it should be found he had paid to Harrell, on a trial of the note then in suit. The suit, was withdrawn, so that the plaintiff bad no opportunity to prove what he bad paid on the note to Barrell. The money received by Gilbert was for the use of himself and Barrell.

When a man pays money on an obligation, his only remedy is to prove and apply such pay ment on the obligation : and no action will lie to recover it back. No action will lie to recover back money paid, with a full knowledge of all the facts. After the dissolution of a partnership, one, partner cannot do any act, by which he can subject the other to a new liability. On these principles, no action could be sustained for the money paid to Barrell; for it was a proper payment on the note, and Gilbert could not, after the dissolution of the partnership, subject him to an action for it. The withdrawing of the suit on the note was a rightful act, on the, part of Burrell : and it could not subject him to an action for a violation of the agreement with Gilbert. But it now appears from the verdict of the jury, that the sum of 375 dollars was paid to Barrell on the note, which was never applied : it also appears, that Gilbert retained the same sum ; that by reason of the withdrawing of the suit on the note, the plaintiff had no opportunity to prove the payment to Barrell, so as to give him a right to recover the money from Gilbert; and yet Barrell and Gilbert have received both these sums on account of the same debt. Here, the condition on which the money was paid, has not been fulfilled ; the con sideration for which it was paid, lias failed ; and though. .Barrell lias done no improper act, yet as he and Gilbert have jointly received the money under these circumstances, it is against good conscience that they should retain it; and they ought, on principles of justice, to refund it.

It is also contended, that the declaration is insufficient, because the promise is alleged to have been made after the date of the writ.

Where the day is material, as in written contracts, and must be proved precisely as laid, such an objection would be fatal \ but where the, day is not material, there this objection cannot be valid. Here, the plaintiff was not hound to prove the day alleged : he might have proved any other day, and it would have been sufficient. The averring of the promise, then, on a day after the date of the declaration, does not vitiate it.

Tuumbui.t,, Edmosd, Smith, Braisarh, Peters and Chapman, Js. were of the same opinion,

Hosmrr, J.

I concur with the Court, in the opinion that the motion in arrest is insufficient,

I am equally clear, that the objection to the testimony founded on the limitation clause in the statute of Frauds, is of no validity.

I cannot, however, admit, that an action for money had and received is sustainable against the defendants.

It is indisputable, that the plaintiff, in the count for money had and received, cannot recover of the defendants, the 375 dollars paid to Barrett, on tine 2d of July 1812, on his note due to the copartnership. This was in satisfaction of an existing debt, and is not distinguishable from any other payment.

On the 20th of December 1816, Gilbert, having refused to allow the above sum in part satisfaction of the note on which it had actually been paid, received of the plaintiff a sum equal to that note $ that is, he received 375 dollars beyond the amount due to the defendants. Whether this surplus can he recovered of the defendants on the count for money had and received, is the remaining question.

Before I enter on this enquiry, I will recur to certain facts, which have been misconceived, or were out of sight, during the investigation of this subject. The money demanded beyond the sum actually due, was paid to Gilbert after the dissolution of the copartnership, aqd without the knowledge or approbation of Barrett. No part of it has ever come to his hands, been applied to his benefit, or received to his use. It has ever been solely, and exclusively, in Gilberts possession j and on no legal principle could Barfell, if it were his desire, recover a farthing of it from Gilbert. Acting under this impression, when the plaintiff advanced the 375 dollars, Gilbert, in his individual name and character, executed a writing to Story, promising to repay him such sum as the court, before whom an action on the note was then depending, should determine had been paid.

In my judgment, there exist several objections to the plaintiff’s recovery on the count for money had and received.

In the first place, the money, without mistake or coercion, was voluntarily advanced, wilh full knowledge that Gilbert received S75 dollars. which before bad been paid on the note, and which payment lie refused to allow. Money paid under these circumstances cannot he recovered. Brown v. M'Kinally, 1 Esp. 279. Cartwright v. Rowley, 2 Esp. 723. Marriott v. Hampton, 7 Term Rep. 269. Gutes & al. v. Winslow. 1 Mass. Rep. 65. Bilbie v. Lamley & al. 2 East, 469. Bulkley v. Stewart, 1 Day 130. In the case last cited, it was said by the court, “ this action ({indebitatus assumpsit) does not lie to recover back money voluntarily paid, on a claim which the party disputes, though he pay it expressly reserving his right to litigate ids claim.” On a principle of general justice and legal policy, the piaintilFis not per* mitted to sustain his suit in such case, lie should have paid the sum, which he knew to be due from him, and stood on ids defence against the residue demanded.

The express engagement of Gilbert furnishes a second objection against the plaintiff’s demand, in my opinion, utterly irresistible. Expressum faeit cessare taciturn. No action for money had and received can be sustained, even against Gilbert. The law will never imply a contract, when the parties, with perfect fairness, have entered into an express agreement. In reply to this, it has been said, that the defendants, by withdrawing their action on the note, have prevented the happening of an event, i. e., the determinátion of the court in relation to the payment, without which no suit can be maintained on Gilbert’s contract. I do not admit the correctness, or supposed force, of this position, Harrell violated no obligation in withdrawing the suit. Undoubtedly, Gilbert did 5 and his contract furnishes a remedy against him. Be this, however, as it may : the express agreement remains open and in force ; and whether there is, or is not, any other remedy, the law will not raise an implied contract.

There remains another objection against the plaintiff’s recovery, to which no satisfactory answer has been given. The partnership connexion between Darrell and Gilbert had terminated, before the sum demanded of the plaintiff was advanced. Tiie money, I repeat, was not delivered to Gilbert with the knowledge or approbation of Burrell, and no part of it has come to Ids possession or use. “ The moment the partnership ceases, (said Lord Kenyon in Abel & al. v. Suttton, 3 Esp. 108.) the parties become distinct persons; t!j»v arc tenants in common of the partnership property undis-posed of, from that period ; arnl if they send any securities* which did belong to the partnership, into the world, after such dissolution, all must join in doing so. It never could be allowed, that one might make another his debtor against his will. "When a man takes a partner, he takes him for better for worse ; he reposes confidence enough, and places himself sufficiently in the power of the partner, during the partnership. To contend, that this liability to be bound by the acts of his partner, extends to a time subsequent to tbe dissolution, is, in my mind, a monstrous proposition. A man in that case could never know when he was to be at peace, and retired from all the concerns of the partnership, if one partner wa*. to have the power of binding another long after the dissolution of the partnership.” In Hockley Sf al. v. Patrick, 3 Johns. Rep. 528., it was adjudged, that if one partner, authorized to settle the debts due from the copartnership, after its dissolution, adjusts an account, and acknowledges a balance to be due from the co-partnership, this acknowledgment will not bind his co-partner. The reason assigned is, because « after the dissolution of a copartnership, the power of one party to bind the other wholly ceases.” It,then, is unquestionably clear, that no act or contract of a partner, after the connexion is dissolved, is obligatory on his copartner, except as to the authority impliedly existing for the collection of joint debts, or the obtaining of joint property. Gilbert and Barrett were as strangers, and each had no right to oblige the other. It was said, however, in the argument, that Gilbert had authority as agent to the late partnership, to receive payment on any terms he might think proper, and on this subject to bind his partner to any engagement he should make. The assertion, in my judgment, is gratuitous, and entirely destitute of foundation. He possessed, by implication, every power requisite to the performance of his duty, and nothing more. He could institute suits, execute receipts, collect debts, in the copartnership name ■, but he could not receive money to which the partnership had no claim, and, by his contract, oblige his partner, on a contingency, to the repayment of it. The reason is plain ; authority to this extent is both unnecessary and dangerous, and therefore, is not by law implied. Under the pretext of collecting debts, a partner might receive money on demands which had been satisfied, and by this act of his, if the company were implicated, one-rate his copartner in sums of ruinous magnitude.

After all, if the authority of Gilbert to do what has been contended for, were admitted, it could have no bearing on this case. He assumed on himself a personal obligations which the plaintiff accepted j and in consideration of which, he paid him 375 dollars. This contract is a law to the parties, of their own making, repelling every legal implication, and exclusively binding them to its own provisions.

I am satisfied, that the charge of the court was incorrect % and that a new trial ought to be granted.

Goitid, J.

The only objection, raised under the motion in arrest of judgment, is, that the promise is alleged to have been made after the date of the writ. But this objection confounds a well established distinction in pleading, vi». That any repugnancy, or mistake, in a material point, is incurable ; but that an immaterial one is aided by verdict. The present case falls within the latter branch of the distinction : for though, in the action of assumpsit, the promise is, upon the face of the declaration, always taken to be an express one ; yet the day, on which it is alleged to have been made, is never material. For the time of making a promise forms no part of the description of the contract, though the time of payment always does. In pleading records, and written Instruments, the rule is different; because the date enters into the description of the record, or instrument, itself. And in any case, the day laid in the declaration, though not originally material, may be made so, by the subsequent pleadings. But here, there are no pleadings, that can have that effect. The question arises, solely, upon the declaration ; and in such cases, the rule is, that if no day, an impossible day, or a future day, is laid, it is aided by verdict. 3 Keb. 354. Carth. 389. The principle of the rule is, that after verdict, every fact, or circumstance, which, in evidence, could have been necessary to warrant the finding, must be presumed to have been proved to the jury ; and of course, to have been proved by legal evidence. In this ease, therefore, the promise being found, we must pre~ sumo, tliat a promise before .the date of the writ was proved , f‘1!' evidence of a subsequent promise would not have been legally admissible.

The question remains, whether there are sufficient grounds shown for a new trial ? I think not. I am wholly unable to perceive any relevancy in the objection, that the admission of the evidence of Pitcher and others was inconsistent with the limiting clause in our statute of Frauds, That clause, which is, essentially, a statute of limitations, provides, that *f no suit shall be brought, or maintained,” upon any unwritten agreement but within three years,” &c. The parol evidence admitted w as, that in July 1812, the plaintiff paid to Harrell, 375 dollars, which Barrett then promised to indorse on the plaintiff’s note to JV*. Gilbert and Co. But the action is not founded upon Barrett's promise to indorse the 375 dollars, nor, indeed, upon any special promise; but upon the implied one, arising from the eventual over-payment of the note. But this implied promise did not, and could not, arise, at any rate, till the last payment made to Gilbert, in December 1816 j nor, as I conceive, till the suit on the note was withdrawn. The receipt of the 375 dollars, by Barrett, and his promise to indorse it, are only a part of the res gesta, from which, when completed, by the subsequent transactions, the plaintiff claims, that the law raises a promise, on the part of the defendants, to refund the excess, ultimately received by them. Whether such a promise results, or not, is a distinct question j but the present objection, at all events, has no application to the case.

It is then objected, that, as the payment, which is claimed to have exceeded the amount due upon the note, was voluntary ; Ike plaintiff is, for that reason, precluded from recovering back the excess. To this, I answer, that the writing, executed by Gilbert, in December 1816, implies a plain waiver of ail exception upon this ground. And it is not denied, S believe, by the counsel for the defendants, that an agreement by Gilbert, might have amounted, in law, to such a waiver, if the partnership between himself and Barrett had subsisted, at the time of the agreement. But it is insisted, that, as the partnership was, Usen, at an end f Barrett rannni, and of course, the late company cannot, be affected by it. It post be borne in mind, .-however, that .the w riting given by Gilbert is not an original contract, intended to bind the company | but an agreement, respecting the payment, w hirli he was then receiving/or the company, upon a note, airead] due to them. And, as to the note, he and Harrell were still, in effect, partners, the dissolution of their general partnership notwithstanding; and would have been such, if no general partnership had ever existed between them. Joint, creditors are, in relation to the joint debt, due to them, always in the nature of partners. And in this case, the, defendants, being, at the time of. Gilbert’s agreement, joint promisees, and having, of course, a joint interest in the debt; each of them then had, quoad the note, the same power to act for both, as if their original partnership had still subsisted. For that purpose, either of them had a right to act, as agent for both.

In this view of the subject, let us consider what the nature of this latter transaction, between the plaintiff and Gilbert. was.

The plaintiff, being indebted, by note, to the defendant, as late partners in business, and Gilbert, one of the defendants, being in possession of the plaintiff’s funds, it was proposed between the two latter, that Gilbert should retain out of those funds, the amount due upon the note. But, as the plaintiff claimed, that he had already paid 375 dollars, to apply upon the note; and as that payment was contested ; it was agreed, in writing, that Gilbert should retain, out of the plaintiff’s money, the amount of the original contents of the note, with the interest — leaving the question of over-payment to be judicially settled, in the suit, then pending upon the note : Gilbert, at the same time, engaging, for himself, and in his own name, to refund, if the question should be decided in favour of the present plaintiff, and to indemnify him, &c. And as it was a principal object of the parties, to have the question, as to the former payment, decided by the court, in w hich the action was pending ; it was stipulated, by the present plaintiff, that this agreement should not be given in evidence in that case. What effect Gilbert’s conditional undertaking to repay and indemnify the plaintiff, may have upon the question, I will, by and by, consider. For the, present, I observe, that the payment to Gilbert, as well as the former one to Harrell, was for the use of the late company ; that, it was, in effect., a payment to them ; and that they have had the benefit of both. These facts appear upon the motion. Gilbert’s agreement, then, was not intended to ere-ate (what it certainly could not create») any original duty upon Barrell. it was only an arrangement, which Gilbert, acting, and lawfully acting, as agent for his late partner, as well as for himself, made in relation to an existing joint claim of theirs — a claim, in which they were still, virtually, partners. And as Gilbert clearly had a right to represent the late company, in relation to this joint claim; as he had a right to receive payment — to discharge the note- — to compromise the demand — or to do, in general, any other act, respecting it, which he and his late partner, together, could do ; he must have had a right to receive payment, upon terms, or upon an understanding, or agreement, that the payment should not prejudice the plaintiff, in relation to any ultimate claim, arising out of the transaction, against the company. And he would have had the s \me right, as being a joint creditor with Barrell, whether any partnership in business had ever existed between them, or not. The power of each, to act for both, to this extent, is incident to the right of each to settle, or discharge, the demand. Now, it is certain, from the nature and scope of the agreement, that the payment to Gilbert was made, with the understanding, and virtually upon the condition, that it should not prejudice the plaintiff’s rights, in the event of its proving to be an over-payment. And if there were nothing more, in the case, — the payment having been made for, and in effect to, both the defendants, and they both having taken benefit of it — this condition must have bound them both. This appears to me quite as clear, as if the over-payment had been made by a mutual mistake, and had gone to the use of both the defendants. And if so, the plaintiff’s claim cannot, in my judgment, be repelled, either by the circumstance of the payment’s having been voluntary, or by the objection, that one of the members of a dissolved partnership cannot, by his own sole act, create a new obligation upon the other. For the only obligation, which, upon any supposition, Barrell incurs in consequence of the last payment, is the implied one, that he shall refund a part of what he himself has received, if it shall appear, that he has received too much.

But it is finally urged, that Gilbert’s written agreement, being a security, substituted for the obligation of the late company to refund, precludes the plaintiff from asserting his present claim. This objection, (however it might have .'¿¡Fettl'd the case, if the question, as to the first payment, had been judicially decided, as contemplated in that agreement,) cannot now avail the defendants. Gilbert's undertaking, so far as regards the present point, was only, to refund “ such sum, as the court should find" to have been before paid upon the note, But the court found nothing ; and was prevented from finding any thing, by the act of the defendants, in withdrawing the action, then depending. 1 say, “ the act of the defendants for though it does not appear, by whose personal direction, that suit was withdrawn j it must be taken to have been by the act of both the present defendants. And by this act, the plaintiff lost ¿ill remedy, in any event, upon Gilbert's written agreement : a judicial finding of the amount over-paid, being indispensable to a right of recovery upon that agreement. For though, where performance of a condition precedent, strictly so called, is prevented by a defendant, the plaintiff may recover, as if lie had actually performed : yet the rule is totally inapplicable to the present case. Here, the amount, to befound by the court, was the only thing, that could, under any circumstances, he recovered under the agreement: and the defendants, by preventing such a finding, have rendered performance of the agreement, on the part of Gilbert himself, absolutely impossible.

The state of the case, then, as it now stands, is, that the object of the plaintiff, in paying the full contents of the note, to Gilbert, has been defeated, and all remedy upon Gilbert's agreement destroyed, by this act of the defendants; and they still retain the whole amount of both payments, in violation of the understanding, and the virtual condition, upon which the last payment was made and received. Under these circumstances, the defendants, if they have received too much, in the whole, cannot, in conscience, retain it. $ nor is it competent for them to object, either that the last payment was voluntary, or that the plaintiff holds a substituted security for what may be due to him.

Motion in arrest insufficient$ and Mow trial, not to fee granted.

       Vide Kilgour v. Finlyson & al. 1 H. Black. 155. Lansing v. Gains & Ten Eyck, 2 Johns. Rep. 300.