author: The first

text:
    Edwards and wife against Stonington Cemetery Association:

      New-London,

    July, 1850.
    IN ERROR.
    Where sundry individuals signed articles of association, which, after counting upon the fact that public necessity and convenience require, that a specified burying-ground, heretofore used as a public burying-ground, should be enlarged for public use, proceeded to say, that “ the subscribers, pursuant to the statute in such case provided, do hereby, for that purpose, agree to associate together, as a body politic and corporate;” and it was objected, that this association was formed for the purpose of enlarging a burying-ground already established, and not for the purpose of procuring and establishing one, and was, therefore, unauthorized by the statute referred to; it was held, that this objection was untenable, as in both cases, the purpose was, to procure land for a cemetery, and establish it as such.
    Where the members of the association had a right of burial in the ground sought to be enlarged, though the fee was in others who were not members ; it was held, that such members had an interest in the subject matter, sufficient to qualify them to petition for an enlargement.
    The effect of sustaining this proceeding would not be to deprive any of those who already had the right of burial in the old ground, of the future enjoyment of that right, in the same manner as before.
    Whether the right of burial in the old ground, be in the public, or in particular individuals, the part added will be public, subject to the regulations of the association; consequently, the taking of land for the enlargement, will not be the taking of private property for private use.

    As to the quantity of land taken.
    This was an application, made to the county court, by the president and directors of the Stonington Cemetery Association, stating, that they were incorporated and organized under the statute ; that the Phelps burying-ground, near the borough of Stonington, and near the members of the association, contained, by the original reservation, and purchase, but one acre, which was now almost entirely occupied by the graves, mostly of the friends and relatives of the members of the association ; that public necessity and convenience required a considerable enlargement of said burying-ground ; that the petitioners wished to enlarge it, by adding thereto three acres of adjoining ground ; that they had tried, but could not agree with the owners of the land ; and praying for the appointment of a committee to enquire into the public convenience and necessity of such enlargement, to designate its boundaries, assess damages, &c. The petition was brought in August, 1849.

      The defendants, on the first day of session of the court filed their motion to dismiss the petition, assigning the tallow-ing reasons:
    1. That the petitioners are not a body politic and corporate, established by authority of this state, or of any statute or resolution of the government thereof.
    2. That the petitioners are not, and never were, a community or association, duly formed according to the provisions of the 190th section of the act concerning communities and corporations.
    3. That the petitioners have never procured and established, nor are they the proprietors of, any burying-ground or place of sepulture.
    4. That the petition was brought solely for the purpose of procuring, under the authority of the court, an addition to be made to the Phelps burying-ground ; of which the petitioners are not the proprietors, and have not now, and never had, any interest therein.
    5. That the Phelps burying ground is not, and never was, a public burying-ground, but is a private burying-ground, and all right, title and interest therein is vested in a few individuals, for their private use.
    6. That all additions made to such burying-ground, will be land taken for private use, and not for public use, contrary to the constitution and laws of this state and of the United States.

    After a hearing upon the allegations in this motion, the court found the following facts.
    On the 7th day of May, 1787, William Chesebrough conveyed the farm then owned by him, including a place used for a burying-ground, to Charles Phelps, by a deed of warranty. On the same day, said Phelps conveyed, by a release deed, one acre of the land embraced in said farm, to said Chesebrough, for the purpose of a burying-ground. At this time, the acre in question had been used as a burying-ground for the Chesebrough family. Others, however, had been buried there, but to what extent, and under what circumstances, did not appear. On the 23d day of October, 1792, William Chesebrough reconveyed said acre to said Charles Phelps in fee, by a deed of warranty. On the 8th of May, 1809, said farm, including said acre, was distributed to Joseph D. Phelps, one of the children and heirs of said Charles Phelps, then deceased. On the 25th day of February, 1817, Hannah Phelps, administratrix of the estate of said Joseph D. Phelps, then deceased, insolvent, by order of the court of probate, ordering and directing her to sell at public sale. all the real estate of the deceased, sold at auction, and conveyed said farm to William Lord, excepting said acre of land, which exception is in the following words, viz. " Except one acre of land reserved where the burying-ground is, which is to be enclosed, with privilege to pass and repass to and from the same.” That exception was made at the request of Ephraim Williams, and two or three others, who had friends buried there, and who agreed to pay Mrs. Phelps a certain sum, as an inducement. The proportion of Ephraim Williams, whose mother was a Phelps, was paid : whether the remainder was paid, did not appear.
    On the 28th of August, 1823, William Lord conveyed the farm in question to Charles H. Phelps, who was one of the children and heirs of said Joseph D. Phelps, deceased, by quit-claim deed, describing it as the farm he bought of said Hannah Phelps.

    About ten or twelve years since, said Charles H. made a fence around said acre, or nearly all of said acre, having requested said Ephraim Williams to assist him ; who refused, until it could be done, as he thought, in a proper manner.
    About three years since, said farm was distributed to Martha E. Phelps, (now wife of Eugene Edwards,) one of the children and heirs of said Charles H. Phelps, then deceased.
    The practice has been, to bury in that ground persons who previously had relatives lying there, without asking any leave ; but since the year 1823, when it was intended to bury strangers there, leave has usually been asked of the Phelps family, or of some one who had friends buried there ; and leave never was refused. What the practice was before that time, did not appear.
    The ground is now nearly full, containing more than 500 graves, of which less than 20 are of persons bearing the name of Phelps, though many of them were relatives of the Phelps family. The place has, since the conveyance in 1792, been called the Phelps burying-ground, and has been claimed by the Phelps family, as part of said farm.

      All the members of this cemetery association, and many other families at Stonington have friends buried in said ground.
    None of the descendants of Joseph D. Phelps, are member of this association.
    The corporation known as the Stonington Cemetery Association, and as such bringing this petition, have no interest or right in said burying-ground, other than as above set forth.
    The public have had the benefit of said burying-ground, and have become interested in it, in the manner herein stated, and not otherwise.
    The petitioners have never been, in any way, organized, except under and by virtue of the following articles:
    “ Whereas, public necessity and convenience require, that the Phelps burying-ground, so called, situate in the town of Stonington, and which has been heretofore used as a public burying-ground, should be enlarged for the use aforesaid, we, the subscribers, inhabitants of said town of Stonington, pursuant to the provisions of the statute, in such case made and provided, do hereby, for that purpose, agree to associate together, as a body politic and corporate, under the following articles of association, respectively, taking the number of shares to our names annexed.
    This association shall be called the Stonington Cemetery Association ; the stock of which shall be divided into sixty-four shares. But this subscription shall be binding, and the corporation may be duly organized, whenever a majority of said number of shares, shall have been subscribed for: the remaining shares not subscribed for and taken, at the time of such organization, being to be thereafter held and disposed of, as said association shall order and direct
    The first meeting of the association shall be called and held in the borough of Stonington, pursuant to a public notice, signed by three of the first five subscribers to these articles, appointing the time and place of such meeting, and posted upon the public sign-post in said borough, at least live days before such meeting; and future meetings may be warned and held, upon the like notice, until said corporation shall, by their by-laws, otherwise order and direct; after which said meetings shall be warned and held, as said by-laws shall require; each share-holder being entitled, at such meeting of said corporation, to a number of votes equal to the number of shares held by him or her.
    The officers of said association shall be a president, three directors, a treasurer and clerk, who shall be chosen at the first meeting of said corporation, and shall hold their offices respectively until others shall be appointed, and shall accept such appointments, in their place and stead ; elections for such officers being to be from time to time held, as the bylaws of the association shall require.
    The president and directors of said association may, by purchase or otherwise, procure and obtain such lands as may be required for said cemetery ; and may enclose and improve the said ground, as they may think proper, subject to the order of the association. Such part of said ground so procured as said association shall direct, may be received and appropriated for a place for public use or burial ; the residue of said lands being to be divided, in such manner as to furnish suitable lots for the use of families, to be designated by suitable bounds or marks ; which lots may be, by the president and directors, sold, for the use of individuals or families, to be conveyed in such manner, and upon such terms, as the by-laws of the association may require. The president and directors may, from time to time, make such assessments upon the shareholders, as may be found necessary for the use of said corporation; the amount to which said share-holders shall be liable tobe assessed not exceeding, in the whole, thirty dollars per share ; and in case the amount so assessed and received from the share-holders, together with the sums which shall be received upon the sale of the lots, shall not be sufficient to meet the payments which shall be required for and on account of said corporation, the president and directors may borrow such amount as may be required, upon the credit of said association, to be repaid from the assessments upon the shares, and the sales of lots aforesaid. Every person who shall be the owner of a lot as aforesaid, though not a member of said corporation, shall be entitled to attend and take part in the deliberations of said corporation, but no person shall be allowed to vote at any such meeting, except share-holders only.
    The assessment paid by any share-holder upon his or her shares, shall apply towards the price of any lots by him or her purchased, and all moneys received from others, on the sale of lots, not required for the use of said corporation, shall be divided to and among the share-holders, until the amount so divided, and price of the lots by him or her purchased on account of his or her shares, shall equal the amount of the shares held by such share-holders. After the original subscription for shares shall have been repaid to the share-holders, all money received upon the sales of lots, shall be applied to meet the necessary expenses of said corporation, and to the improvement, and (if so required) to the extension of said cemetery. Stonington, July 27th, 1849.” Signed, “ Ephraim Williams, four shares,” and thirteen other persons, some for the same, and others for a less number of shares ; the whole number of shares subscribed for being thirty-five.
    The court thereupon overruled the motion of the defendants, and granted the prayer of the petitioners, and appointed a committee to examine the premises described in the petition, and to determine upon the propriety and the public necessity and convenience of the enlargement prayed for, and upon the quantity, boundaries, damages and value of the land, which they should deem proper for the purpose contemplated. This committee, having been duly sworn, and having caused reasonable notice of the time and place of their meeting to be served upon the parties, repaired to the premises in the town of Stonington, and after a personal examination thereof, and a full hearing of the parties, with the evidence exhibited by them, they decided, that propriety, public convenience and necessity required, that said cemetery should be enlarged ; and that such enlargement should be made Westerly and Northerly from the present limits of said cemetery ; the nature of the ground adjacent thereto forbidding any enlargement in any other direction. The committee further reported, that from the evidence adduced before them, the original burial-ground embraced one acre of land, but the walls, which were erected around it, did not inclose quite an acre of land. And they further found, that public convenience and necessity required an addition of three acres of land, bounded and described as follows, including the one acre intended to be embraced within the limits of the old burial-ground, viz., beginning at the South-East corner of the old burial-ground ; thence running with the wall, by land of Calvin G. Williams, North 85° West, 261 rods, to the highway; thence by said highway, North 61° East, 24 rods, 21 links, to a stake and stones by the wall ; thence South 82 East, 26 rods, to a stake and stones by the wall ; thence by the wall, South 60 West, 23 rods, 17 links, to the place of beginning ; the whole tract, inclusive of the old burial-ground, containing four acres of land.
    The committee further reported, that they assessed the value of the land so added to the limits of said cemetery, at the sum of two hundred dollars per acre, being in the whole amount, the sum of six hundred dollars, which sum they awarded, as damages, to the defendants.
    The defendants remonstrated against the acceptance of this report, assigning the same reasons as those previously assigned on the motion to dismiss the petition. The court found the facts stated in said report to be true, to the extent specified in the former finding of the court on said motion ; and thereupon accepted said report, and ordered and decreed, that the Phelps burying-ground be enlarged, by adding thereto, adjoining the same, Westerly and Northerly, three acres of land, bounded, &c., containing, including one acre in said old burying-ground, four acres. And the court further ordered and decreed, that said three acres of land adjoining said old burying-ground, on the payment or deposit of the assessment ordered, be, and the same was set apart and established as an addition to and enlargement of said old burying-ground or place of sepulture. The court then ordered and decreed, that the petitioners pay to the defendants, or deposit with the treasurer of the county of New-London, for their use, the sum of six hundred dollars, that being the sum assessed by said committee as damages, and the value of the land so added to said old burying-ground, within thirty days from the 6th day of December, 1849, and that execution issue for the same in favour of the defendants against the petitioners.
    On motion in error, by the defendants, the record of the proceedings and final decree in this case, was transmitted to the superior court, by which it was adjudged, that in such record there was nothing erroneous. The original defendants, (now plaintiffs in error,) then removed the cause, by motion in error, to this court.

      T. C. Perkins, for the plaintiffs in error,
    .contended, 1. That it was to be done de novo; and they could only take land by contract. The object of the act of 1849, approved, June 21st of that year, was merely to give these associations power to enlarge, by compulsory process, the limits of their grounds. This act did not authorize the formation of associations for any other than the specific purpose named in said 190th section. But this association is formed, not to procure on establish a place of sepulture, but merely to enlarge the limits of one. This distinction is essential. Statutes authorizing the taking of land, by compulsory process, have a strict construction. Sharp v. Speir, 4 Hill, 76. 81-84. Sprague v. Bird-sall, 2 Cowen, 419,420. Sharp v. Johnson, 4 Hill, 92. The legislature never intended to establish a burying-ground, originally, by compulsory process. They intended this should be done only by contract. This appears from the 190th section. Where it was so established, (and it could be done in no other way,) by an association formed under that section, then such a ground, and no other, under the act of 1849, could be enlarged by compulsory process. These acts are in pari materia, and to be construed together, as if parts of the same act. the defendants had not organized their association pursuant to the 190th section of the act concerning communities and corporations. Stat. 183. Under that sections assoaciations could only be formed to procure and establish a place of sepulture ;
    2. That the petitioners cannot sustain this process, because they have no interest in the ground proposed to be enlarged. Gaston v. Plum, 14 Conn. R. 344. 347. That this association has no such interest, appears from the finding of the county court. Even if some of the individual corporators have the right of burial there, it gives them no interest there. See Kinne's Law Compendium for 1850, p. 64. Still less would it give such interest to the corporation of which they are members. The statute of 1849 could only have contemplated the case where the petitioners should be the legal proprietors of the ground sought to be enlarged. Otherwise, these petitioners might bring a similar process against the owners of land adjoining any other burying-ground in the state; or associate to enlarge any other ground ; or any other persons might associate to enlarge this. The legislature never designed, that the title to the old ground should be in one party and the addition in another.
    Great injustice would result, the claim of the petitioners is allowed. A party consents that his relatives may bury on his farm-it leads to the compulsory establishment of large public burying-ground near his house. The effect here will be to take this family-ground from the Phelps family, and give it to the public. None of the descendants of old Mr. Phelps are members of this association ; and if they were, they could at any time sell out.
    3. That this process cannot be sustained, because this is not a public burying-ground ; and none but such could have been contemplated by the act. If an association can in any case be formed, merely to “ enlarge,” certainly not to enlarge a private ground. That this is in fact a private ground, appears by the finding of the county court.
    4. That this being a private ground, the lands are taken for private use, which is unconstitutional. Only such parts arc reserved for public use, as the association may direct-perhaps none. See Articles of Association.

    5. That part of the land is taken without payment: in other words, more land has been taken than is to be paid for. Although this is not specified in the original remonstrance to the county court, yet as it appears on the face of the proceedings, and was assigned as a cause of error in the superior court, it is error here.

      Strong and Pomeroy, for the defendants in error,
    contended, 1. That the act of 1849 was not confined to the enlargement of cemeteries created under the act of 1841. Sess. Laws, p. 63. In the first place, the language of the act of 1849, does not require such a construction. It only provides how the community that is thus to enlarge, shall be organized, as is provided in the act of 1841. Secondly, the statute of 1841, having existed but for a few years, and but few associations having been formed under it, no such provision is now required for the enlargement of their cemeteries. Thirdly, the ownership of ancient cemeteries, which require to be enlarged, in many instances, cannot be ascertained ; many of them having been originally given or dedicated for public use, without deed or conveyance to any trustees or corporation; of them, originally designed for family burying- grounds, having been thrown open to public use. In no way could the title to such grounds become vested in a corpora- tion formed under the act of 1841. 2. That
    this is not taking private property for private use ; but for public use, with full remuneration in damages. In the first place, there is as great a necessity for thus taking the land of individuals, as in case of highways, rail-roads, canals, school-houses, &c. Secondly, according to uniform usage, cemeteries have been provided by the public. 3. That
    it does not appear, that any more land has been taken, than has been paid for, by the assessment of damages; and if any such claim could have been made, on the coming in of the report to the county court, not being made then, it cannot be made now. The only reasons assigned against the report of the committee, were those filed against their ap- pointment. New-London, July,
   The first

question presented upon the rec- ord, is, whether the Stonington Cemetery Association, the party defendant in this motion in error, and the original par- ty plaintiff in the county court, was and is a legal corpora- tion. capable of bringing the original petition to the county court. The 190th

section of the Revised Statutes, p. 183. author- izes “ any individuals, in any town in this state, to associate for the purpose of procuring and establishing a burying- ground or place of sepulture ; and being so associated, they, on complying with the provisions of said section, become a body politic and corporate. The members

Th membersof this association, on the 27th of July, 1849, for the purpose of organizing, as a corporation, under this section, signed certain articles of association, a copy of which they lodged with the secretary of state, and caused to be re- corded in the records of the town of Stonington, where the burying-ground is situated, pursuant to the requirements of this section of the statute. No question is made as to the proceedings being regular in point of form ; but the articles of association, after counting upon the fact that public neces- sity and convenience require, that the Phelps burying-ground Phelps burying-ground should be enlarged for public use, go on to say, that they, “ pursuant to the statute in such case made and provided, do hereby, far that purpose, agree to associate together, as a body politic and corporate,” &c

The plaintiffs in error deny, that this is an association pursuant to this section of the statute, on the ground that it does not profess to associate for the purpose of procuring and establishing a burying-ground, but for the purpose of enlarging one already established, which, it is insisted, is for an object entirely different. We think the construction we are asked to give to this statute, too narrow. Persons are authorized to associate for the purpose of procuring and establishing a place of sepulture. This can mean nothing else than that they are authorized to associate, in order to procure land for that purpose, and establishing it as such. This may as well be done, by enlarging an old established burying-ground, as by purchasing land for the purpose of establishing one, in a place entirely separate from any former place of the sort. In both cases, it is procuring land for a place of sepulture, and establishing it as such.

We are referred, on this question, to cases going to show, that statutes authorizing the taking of land, by compulsory process, should be construed strictly. No doubt that is a general principle; but we do not see its applicability to this question. In the mere organization of a corporation for the purpose of establishing a burying-ground, there does not seem to be anything that should require more care, than if it was organized for any other purpose. When the corporation is once organized, and they attempt to take private property, without the consent of the owner, it is right to hold them, and all others in like circumstances, to a clear and plain exercise of the power expressly granted.

The cases to which we are referred would then apply; and they may well enough apply to other parts of this case ; but have no particular force on the question of the mere organization of the corporation.

If, then, the original petitioners were properly organized as a corporation, for the purpose of procuring and establishing a burying-ground, were they authorized to institute this proceeding "

By a statute of 1849 (acts of that year, p. 8.) it is provided, that “ whenever any community or association, duly formed, according to the provisions of the 190th section of the act concerning communities and corporations, wish to enlarge the limits of a burying-ground, or place of sepulture, and cannot agree with the owner or owners of the land proposed to be taken for such purpose, they may apply, by petition, to to the county court.’’

The original petition was brought and prosecuted under this statute ; and no question is made but that the petitioners, being duly incorporated, the proceeding itself was regular, and is authorized by the strict letter of this law. But it is made a question, whether they can proceed, in this application, to enlarge a burying-ground, in which, it is claimed, they have no interest.

It is not, in our opinion, very material to enquire, in whom, at the present tune, is the fee of the one acre of land, known as the Phelps burying-ground. It appears to have been used as a private or public place of sepulture, for a period of more than sixty years ; the ground being now nearly covered with graves ; that for the last twenty-five years and more, the practice has been, to bury those persons who had relatives lying there, without asking leave ; but that since the year 1823, when it was intended to bury strangers in that ground, leave has usually been asked of the Phelps family, or of some one who had friends buried there ; that leave to bury there has never been refused to any one ; and that all the members of this association, and many other inhabitants of Stonington, have friends buried in that ground. Now, under these circumstances, whether Mrs. Edwards, one of the plaintiffs in error, as a grand-daughter and one of the heirs? of Joseph D. Phelps, who died previous to 1817, more than thirty years since, has, in common with the other heirs of her grand-father, an interest in the fee of this burying-ground, does not seem to be material. It is very probable, that she has such an interest. The ground was distributed, with other lands, to Joseph D. Phelps, in 1809: and it does not appear, that he and his heirs ever lost their title to it, in any way, unless the use of it as a burying-ground, in the manner above stated, has deprived them of it. Be that as it may, we think the right of burial, which the members of this association, and all others having friends buried in that, ground, have exercised, for so long a period, is conclusive evidence -.of their rights to bury there ; and that the right of burial may exist, either in the public or in private persons, and the fee of the soil be in others, we presume is too clear for argument.

It appears, then, that, all the members of this association,, have an interest in the Phelps burying ground, having a right to bury their dead in that gronnd. This, we are aware, does not amount to a strict technical interest in the corporation, as such, in the ground in question ; and yet it i~ impossible to separate the interest of the individual members, in such a corporation as this, from the interest of the corporation itself.

The only object of the corporation was, to procure for its members and the public a place of burial ; and it would not seem to he any departure from principle, to treat it as the trustee of its members for this purpose. The corporation of a city or village, it has been held, may apply for an injunction against a nuisance to the inhabitants, erected upon its public streets or squares ; not because the corporation, as such, has any title to the property itself-it obviously has no such title-nor is it because its citizens, strictly speaking, have any title to the property ; for they have none that is not common to the whole public ; yet the chancellor, in the case of the trustees of Watertown v. Cowen, 4 Paige, 510, found no difficulty in considering the corporation as the proper representative of the equitable rights of the inhabitants of the village to the use of the public square, so as to protect those rights against the erection of a nuisance. See also the Mayer &c. of London v. Bolt, 5 Ves. 129.

But however this may be, when we take into consideration the very comprehensive language of the statute, under which the petition was originally brought, we think it no strained construction to say. that the petitioners have all the interest in the subject matter, that the legislature intended to require.

It was suggested in argument, that the effect of this proceeding, if sustained, would be to deprive the owner of the Phelps burying-ground of their rights there. This suggestion is wholly unfounded. That ground has not been taken, nor.is it in any way affected, by this proceeding. The heirs of Joseph D. Phelps still remain the owners of the fee in the ground, if they were so, when the petition was brought; and they, in common with the members of this association, and all others who have acquired the right to bury there, will continue to enjoy their rights in the old ground, in the same manner as before.

Again, it is made a question, whether the Phelps burying-ground is not private property, belonging solely to the heirs of Joseph D. Phelps ; and, if so, it is claimed, that this application to enlarge it, cannot be sustained.

It is not necessary to decide, whether an association, under this late statute, could be sustained, for the purpose of enlarging a private burying-ground, in which neither the association itself nor any of its members, had any interest.

It seems difficult to say, that it could do so, without holding that it could apply, not merely to enlarge a burying-ground, but also to establish one entirely new, and disconnected with any other. It will no doubt be worthy of consideration, when such p question arises, whether it can be done. But it has already been suggested, that the right of burial in the old ground, being in the association or «its members, will give the association a sufficient interest to enable them to enlarge it; and whether this right of burial is in the whole public, or is confined to particular individuals, as in this case, to such persons as have friends buried in the old ground, can make no difference. If the right in the old ground is not public, in every sense of the term, it will not affect the public right in regard to that part of the ground which is added to it» by this enlargement. The part added will be public, subject to such regulations and restrictions as the by-laws of the association may make; and that is enough to answer the material part of this claim, viz. its being subject to the objection of taking private property for private use only.

It is claimed, that it appears on the face of the proceeding, that more than three acres of land have actually been taken; and consequently, that the excess has been taken, without any compensation being made therefor.

This was not assigned for error in the superior court; but perhaps that is not a sufficient answer to the claim, if the fact appeared upon the face of the record. But it does not so appear. The most that can be claimed, is, that there may perhaps be some room to duubt, whether all the land which is professedly taken, three acres, will cover all the land, which, with the old burying-ground, goes to make up the four acres now included in the survey of the whole ground, including the enlargement.

The committee proceeded to take and assess the damage for taking three acres only; and they treat the old burying-ground as containing one acre. By the deeds, the last of which was in October, 1792, from William Ckesehrough to Chas. Phelps, Esq., the father of said Joseph D. Phelps, it is called “ one acre,” and is described as such.

Hence the-committee say, that the original ground included one acre of land ; but the walls which were erected around it, do not make quite an acre. These wails, it appears, are a modern erection. They were erected by Chas. H. Phelps, father of one of the plaintiffs, and under whom they both claim. They were erected ten or twelve years since. In the first deed of th'rs ground from Chas. Phelps to William Chesebrough, it is said to be conveyed “ for the purpose and intent of a burying-place, and not to be improved in any other way and is described as “one acre of land on the farm I have this day bought of said Chese-brough, where his honoured father and mother were buried, to be laid out square, in the most convenient manner for a burying-place.” Under this deed, the lines of the one acre do not appear to have ever been actually surveyed, until the committee did it, for the purpose of surveying the addition to it. The only attempt to fix the lines, was the erection of the fence, some ten or twelve years since, by the proprietors of the Phelps farm. Doubtless they intended to include the one acre originally deeded ; but the fence did not include it all. Under these circumstances, it is impossible to say, that more land has been taken than three acres. The old ground contained one acre ; there are but four in the whole ground as enlarged. It is not pretended that the lines have been so run as to leave out any part of the old ground. We do not see, therefore, that any more land has been taken than the three acres for which the committee have assessed damages.

Upon the whole case, then, we are not satisfied there was any error in the judgment of the superior court; and we or der judgment to be entered for the defendant in error.

In this opinion the other Judges concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Wave, J.

license: Public Domain

text:
    Tate and others against The Protection Insurance Company.
    Where the command of a vessel devolved upon the second mate, by the successive deaths of the first mate and master, during the voyage; it was held, that he did not thus become the master of such vessel, within the meaning of the clause in the policy of insurance, which excludes barratry of the master, the assured being owners, from the risks insured against; consequently, barratry committed by him, while thus in command, was the act of a mariner, and one of the risks assumed by the policy.
    This was an action upon a policy of insurance, made, in the usual form, on the 17th day of June, 1845, for the sum of 6,750 dollars, upon the bark Fame and outfits, then on a whaling and elephantary voyage to Kergerland and elsewhere, and back to New-London. Among the perils insured against, was that of “barratry of the master, (unless the assured be the owners of the vessel.) and of the mariners.”
    With respect to the loss, it was averred, in the declaration, that on the 1st day of March, 1847, while the vessel was on her voyage, the mariners on board, in a barratrous and fraudulent manner, took and carried away the vessel, with the outfits, to places unknown to the assured, and converted her to their own use. The plaintiffs, having abandoned to the defendants the vessel and outfits, claimed to recover, as for a total loss.
    The cause came on for trial before the superior court, in the county of New-London, at the March term, 1850.
    Upon the trial, the defendants admitted, that all the allegations in the declaration were proved, excepting that the loss was caused by the barratrous conduct of the mariners, as to which the following facts were agreed upon, by the parties.
    New-London,
    July, 1850.
    When the vessel sailed upon her voyage, Joseph B. Mitchell was the master, Joseph Penny, the first mate, and Anthony Marhs, the second mate, of the vessel ; Mitchell having been appointed, as such master, and Penny and Marks respectively shipped, as such mates, by the plaintiffs. In the prosecution of the voyage, Penny died, in consequence of a blow from a whale; whereupon the duties of the first mate devolved upon and were exercised by Marks. After which Mitchell died; whereupon the duties of master of the vessel devolved upon and were assumed and exercised by Marks, under whose command and direction the vessel was afterwards navigated, and, on her homeward voyage, brought to Rio .Janeiro, where a new crew being shipped, the vessel was thence taken, under the direction of Marks, acting as such master, on a slave trading voyage or expedition to the coast of Africa. There a great number of slaves were, by him, procured and transported in the vessel to Rio Janeiio, and there disposed of. He then caused the vessel to be taken elsewhere, and converted her to his own use, whereby she became wholly lost to the plaintiffs, by the barratry of Marks. It was admitted also, by the plaintiffs, that they were owners of the vessel and outfits insured.
    The defendants thereupon claimed, that Marks was, and should be deemed to be, the master of the vessel, and not one of the mariners thereof, when the barratry was committed, within the meaning and construction of that clause in the policy, enumerating the perils insured against, and specifying barratry of the master (unless the assured be the owners of the vessel,) and of the mariners," as one of them. And it was further claimed, by the defendants, that if Marks was not then to be deemed the master, but one of the mariners of the vessel, the defendants were not liable to the plaintiffs on the policy, by the true construction of said clause, for the barratry of Marks.
    Upon these facts the court decided, that upon the true construction of said clause in the policy, Marks was to be deemed one of the mariners, and not the master of the vessel, when the barratry was committed; and that the defendants were therefore liable to the plaintiffs on the policy, and rendered judgment accordingly.
    The defendants thereupon filed a motion for a new trial; and the case was reserved for the advice of this court.

      Hungerford and T. C. Perkins, (with whom was Foster,) in support of the motion,
    contended,
    1. That Marks, through whose barratry the vessel was lost, by virtue of the original appointment, upon the death ot the first mate and the master, succeeded to all the authority, rights and responsibilities of, and in fact became, the master of said vessel, and was such, at the time the barratry was committed. Read v. Chapman, 2 Stra. 937. The ship Favourite, 2 Rob. Adm. R. 232. The brig George, 1 Sumrt. 151. Copeland v. New-Eng. Ins. Co. 2 Mete. 432. Par-meter v. Todhunler, 1 Campb. 541. Jacobs. Sea Laws, 123.
    2. That the insurance, by the terms of the policy, is to continue upon the vessel until the end of the voyage, whoever may be the master of it: and the exception of the barratry of the master from the perils insured against, is referable to any master during the voyage ; there being no intimation in the policy, that it was intended to be limited to the master directly appointed by the owners. Provision is made for a change of masters; and the exception is no more applicable to one than to another.

      Strong and Crump, contra,
    contended, That the second mate of a ship, upon whom, by the successive deaths of the first mate and the master, during the voyage, the command devolves, does not thus become the “ master” of such ship, within the meaning of the clause in the policy, which excludes barratry of the master, when the assured are owners, from the risks assumed by the underwriters. This position they endeavoured to support, upon principle and authority.
    1. Upon principle. In the first place, the object of this exclusion relates only to masters proper, appointed by the owners, and not to those who become commanders accidentally, as Marks did, in this case: the end in view being to secure a close attention, on the part of the owners, to the integrity and competency of the master they appoint. Secondly and chiefly, to prevent collusion between the master and owners, to the defrauding of the underwriters. On both points, see Earle & al. v. Rowcroft, 8 East, 134, and Ordinances of Rotterdam, referred to in Park on Insurance, 85.
    2. Upon authority. See the case of the brig George, 1 Sumn. 156. where the precise character which a mate has, who succeeds to the command, by the death of the master, came in question, and was determined by Judge Story, in conformity to the views of the plaintiffs here. The language of the court, in the case referred to by the defendants, in 2 Metc. 432. (445 and 446.) must be considered with reference to the question before them, which did not call for a determination of the precise character which a mate succeeding to the command, by the death of the master, bears to the ship~ but only whether the want of any other commander than such mate renders a vessel unseaworthy, if she proceeds on her voyage from an intermediate port. The court cite the case in Sumner in support of their views, without any objection to any part of Judge Story's decision,
   Wave, J.

The plaintiffs, in this case, were insured against the barratry of the mariners, but not against that of the master. The vessel was lost, by reason of the barratry of the second mate, committed after he had succeeded to the command, in consequence of the deaths of the first mate and ihe master, while the vessel was on her voyage, and in foreign parts; and the question is, whether that was one of the perils insured against.

The practice formerly was, to insure against the barratry both of the master and mariners. Eminent judges have considered it extraordinary that the barratry of the former should have ever crept into insurances, and still more so, that it should have long continued in them. Earle v. Rowcroft, 8 East, 126. Nutt v. Bourdieu, 1 Term R. 323. 330. Grim v. Phoeni.v Insur. Co. 13 Johns. R. 451. 458.

Such a practice encourages collusion between the owner and master, and thereby opens a door for frauds upon the underwriters. It is said by Marshall, in his treatise on Insurance, that at Rotterdam, the owners of ships were prohibited from insuring against the barratry of the master, whom they themselves appoint, but were permitted to insure against that of the sailors, and of such a master as might succeed to the command in foreign ports, without their knowledge, upan the decease or absence of the master originally appointed. 2

Marsh. Ins. 443.

In the present case, the barratry of the master, by the express terms of the policy, is excluded from the perils, against which the plaintiffs were insured; but the former practice in relation to the barratry of the mariners, remains unchanged.

Had the vessel been lost, by the barratry of Marks, the second mate, while she continued under the command of the original master, it is conceded, that the defendants would have been liable. Does the accidental circumstance, that the master had previously died, make any difference with that liability? Had the plaintiffs done any act, by which Marks had been promoted to the command, the case might be different. But here the plaintiffs have done nothing to affect their rights. Marks contracted to serve as second mate, and such he continued during the voyage, notwithstanding the deaths of his superior officers, by reason of which additional duties were cast upon him. He was not the confidential agent of the owners, as was the case with the master appointed by them.

In England, where a master can not sue, in a court of admiralty, for his wages, it has been holden, that a mate, who succeeds to the command of a ship, upon the death or absence of the master, may sue in that court for his wages during the whole voyage. But for bis extra services, performed as commander of the ship, he must resort to the common law courts. And the reason assigned, is, that having contracted to serve as mate, that character remains, although a new character is superinduced. Read v. Chapman, 2 Stra. 937. The Favourite, 2 Rob. Adm R. 192. “ He does not,” says Judge Story, “cease to be mate, but has thrown upon him cumulatively the duties of master. He is still mate, acting as master pro hac vice.” The brig George, 1 Sumn. R. 151.

Such being the situation of Marks, at the time when the barratry was committed, it ought to be treated as the act of a mariner, for which the defendants made themselves responsible. Such a construction, we think, is in conformity with the spirit and meaning of the policy. The reasons for not insuring against the misconduct of a master whom the own~ ers appoint, do not apply to a case like the present. The danger of collusion does not exist.

A new trial, therefore, is denied.

In this opinion the other Judges concurred.

New trial not to be granted.


author: Stohrs, J.

text:
    Marion against Faxon.
    A court of law, in the construction of an instrument, will correct a palpable mistake, and give it the meaning plainly intended by the parties.
    Therefore, where the declaration in an action on an officer’s receipt, after stating the attachment of the property by the plaintiff, alleged, that in consideration that he had delivered the property to the defendant, at his request, to be kept by him, the defendant promised to deliver it to the plaintiff, on demand ; and the writing given in evidence was, “ received of M, constable, the following articles attached by me,” specifying them, “ which I am to deliver to said M, on demand ;” it was held, that the word “me,” in the receipt, was obviously a mere misprision, being inserted instead of him, which would refer to the plaintiff; and thus construed, there was no variance.
    The undertaking of the defendant, in such case, was not a promise to answer for the debt, &c. of another person, within the statute of frauds.
    A discovery made in answer to a motion of the adverse party, can be used by the party making it, so far only as it is responsive to the motion.
    Therefore, where the prayer of a motion by the plaintiff, was, that the defendant should disclose whether the plaintiff had made a demand of him ; and the defendant, after admitting the demand, went on to say, that the undertaking declared on, was without consideration, &c.; it was held, that such discovery was evidence of no other fact than the demand.
    A creditor of two joint debtors has a right to secure his claim, by attaching the property of both, or either of them.
    Therefore, where A, in a suit against B and C, his joint debtors, directed the officer to attach the property of B, and not of C, which he did ; and after-wards, he put the property so attached into the hands of D, and took from him a receipt, promising to redeliver such property on demand, without informing D of the direction given by A in relation to the attachment; in an action brought by the officer, on such receipt, against D, it was held, that such attachment was no violation of the rights of B or C, and the want of such information to D, was not a constructive fraud.

      New-Haven,
    July, 1850.
    This was an action of assumpsit, founded on an officer's receipt. The declaration consisted of two counts. The first was abandoned by the plaintiff.
    New- London July, 1850. Marion v. Falcon. The second, a lawful constable of the town of Stoninglon, alleged, that on the 8th day of October, 1846, a writ of attachment, duly signed and directed, was delivered to him, to serve and return according to the exigency thereof, by which he was commanded to attach, to the value of 325 dollars, the goods or estate of Ezra W. Thayer, and Mark Glines, of said Stonington, partners, under the firm of E. W. Thayer & Co., and them to summon to appear before the county court to be held at Norwich, in and for the county of New-London, on the second Tuesday of November, 1846, to answer unto Henry P. Yeomans, in an action of book debt, demanding the sum of 325 dollars ; that by virtue of such writ, the plaintiff, as constable, attached, of the proper goods and estate of said Thayer, 400 pairs of ladies’ kid slippers, of the value of 200 dollars, and 75 pairs of men’s calf boots, of the value bf 125 dollars, and returned said writ to said court; that the plaintiff, having so attached said shoes and boots, and taken them into his possession, and holding them to satisfy the judgment that should be recovered in said suit, on the 8th day of October, 1846, at the special instance and request of the defendant, delivered to him, the defendant, said shoes and boots, to be by him kept and delivered to the plaintiff, whenever they should be by him thereafter demanded ; and in consideration thereof, the defendant, then and there, undertook, and to the plantiff faithfully promised, to deliver to him said shoes and boots, whenever thereafter of him, the defendant, demanded; that in June, 1847, judgment was rendered, by said court, in said suit, in favour of said Yeomans, against said Thayer and Glines, for 203 dollars,* 35 cents, damages, and 22 dollars, 32 cents, costs, for which execution was issued, and put into the hands of the plaintiff, as constable, to serve ; that by virtue thereof, the plaintiff, on the 9th day of August, 1847, made demand of said Thayer to pay and satisfy the same, and both he and said Glines, who was out of the state, neglected so to do; that on the next day, the plaintiff demanded of the defendant said shoes and boots, but he, then, and at all times thereafter, neglected and refused to deliver said shoes and boots, or any or either o1 them, to the plaintiff; that the plaintiff afterwards returned the execution wholly unsatisfied ; and that, by rca-son of the premises, he has been rendered liable to pay the amount thereof to said Yeomans.
    The defendant pleaded the general issue, with notice, that under such issue, he should give evidence to show, that Yeo-mans, the plaintiff, in the original suit, instructed the present plaintiff not to collect the execution of Glines, but of Thayer and the present defendant?
    The cause was tried at New-London, September term, 1849.
    On the trial, the plaintiff offered in evidence, to prove the facts alleged in his declaration, a receipt signed by the defendant, of which the following is a copy ; “ Stonington, October 8th, 1846. Received of William A. Marion, a constable of the town of Stonington, the following articles, attached by me, belonging to Ezra W. Thayer, in favour of Henry P. Yeo-mans, of Providence, R. I., which I am to deliver to said William A. Marion, on demand : 400 pairs of ladies’ kid slippers, at 50 cents per pair-$200. 72 pairs of men's calf boots-$125. [Signed.] Elisha Faxon."
    To the admission of such receipt, in evidence, the defendant objected, on the ground that it proved facts variant from the facts stated in the declaration ; and because it was not such a memorandum or note in writing, as is required, by the statute of frauds and perjuries, in such a contract; and because it is ambiguous and uncertain on its face. In connex-ion with this receipt, the plaintiff also offered in evidence the record of the proceedings in said suit of Yeomans v. Thayer & Glines. To the admission of this evidence the defendant also objected ; but the court overruled said objections, and admitted all the evidence.
    The defendant claimed, that it was proved, by the answer of the defendant to the motion of the plaintiff, seeking a disclosure, that such receipt was merely nominal, and was not given for any valuable consideration, and prayed the court so to instruct the jury. But the court declined so to instruct them, and said to them, that said disclosure was not evidence of any facts stated in it, which were not called for in the motion for a disclosure ; and therefore, was not evidence to prove, that said receipt was given upon a nominal consideration. The
    motion of the plaintiff for a disclosure here referred to, after stating the proceedings in the suit of Yeomans v. The yer & Glines-particularly, the attachment of the boots and shoes, the delivery thereof to Faxon, the present defendant, and his undertaking to keep them safely, and redeliver them, when demanded, the recovery of the judgment against Theyer & Glines, the proceedings under the execution, including the demand of Faxon, for the property attached, and his re- fusal to deliver it-prayed, that said Faxon should disclose, under oath, as to the demand so made by the plaintiff of him, for the delivery of the property so attached-wheth- er such demand was not made of him-and that he should make a full disclosure in the premises, pursuant to the pro~ visions of the statute. In
    In answer to this motion, the defendant made the following statement: " According to my present recollection, some time in October, 1846, I went into the shoe-stoic of Ezra W. Thayer, in Stoninglon. There, Marion, the piesent plain- tiff, stated, that he had a writ of attachment in favour of Henry P. Yeomans against said Tlzayer and Wark Gluies, demanding-I cannot now say from recollection how niuch, or to what court returnable-but do recollect, that the sum was not so large as to be at all hazardous to sign a receipt as for goods attached on the same ; believing, as I then did, and now understand, that said Glines was, and is, abundantly responsible for much more than the sum demanded in said writ; and at the request of said Thayer and Marion-one or both, and I think both, but am not positive-I signed a recupt, but not for any boxes of shoes or boots, and am quite sure, boxes of hoots and boxes were not named. I think the re- ceipt named a quantity of ladies' slippers, and men's calf boots-I cannot say how many but am confident, a much larger number than were then in the store. None were ac- tually delivered me, by said Marion or Thayer ; and I never received any boots or shoes, on account of said attachment or receipt, as no such quantity (if any) were attached as I re- ceipted. The receipt was merely nominal. I then under- stood it was a question whether anything was due, or would be found due, to said Yeomans,as I then and now know said said
      Glines was not in the habit of being sued for debt, but is, and has been, a man of property. I cannot say when the plaintiff called on me relative to said receipt. I believe, however, more than once. I do not recollect distinctly, that he made demand of the property named in said receipt, though I do not say he did not make such demand, because he has stated that he has made such demand. Further, in one or several of these conversations about this receipt, (and we had several, during or about this time,) I do distinctly recollect his reply to my question why he did not collect of Glines, (though he and Thayer had then both left the state-Glines then had property here, and has it now,) his reply was, that he was ordered, by said Yeomans, not to collect of Glines, but of Thayer, or on this receipt; and this, in substance, the present plaintiff has repeated many limes since, in my hearing, and in the hearing of others.”
    In the progress of the trial, the defendant claimed to have proved, that Yeomans instructed the plaintiff not to attach the property of Glines, on the original writ, but to attach the property of the other defendant, Thayer; and prayed the court to instruct the jury, that in case they should find, that the plaintiff had been so instructed, by Yeomans, and unless they should find, that such instruction was communicated to the defendant, at the time of signing such receipt, such instruction was a fraud on the defendant. But the court declined so to charge the jury, and charged them, that Yeomans had a right to give such instruction to the plaintiff.
    The jury returned a verdict for the plaintiff, for the amount of said execution, and the interest thereon; and the defendant thereupon moved for a new trial.

      Hill and Pomeroy, in support of the motion,
    contended, 1. That the receipt in question was not admissible to prove the facts alleged in the declaration. In the first place, the receipt, which is the contract on which the action is founded, must be predicated upon the process, must be sustained by it, and must be conformed to it, or the plaintiff’s declaration is not proved. Secondly, the receipt does not describe the writ, or any writ, by the name of the parties, by the date, or the court to which it was returnable. The most that can be inferred concerning the writ, as described or alluded to in the receipt, is, that it was one in favour of H. P. Yeomans. Is this enough ? Does it correspond with the statement in the declaration? Thirdly, the receipt is materially variant from that described in the declaration, because the declaration states an attachment made by Marion, the present plaintiff, whereas the receipt states an attachment made by Faxon, the signer of the receipt. The words are, “attached by we.” This cannot mean by him attached. Fourthly, if there is an ambiguity in this receipt, it is a patent ambiguity, which cannot be varied or explained, by extrinsic evidence. Bunnel & ux. v. Taintor’s adm’r. 5 Conn. R. 273. 277. Fifthly, if there is a mistake in the receipt, it can be reformed only in chancery. Sixthly, as it is, the variance is palpable, and not only does not support, but contradicts the statement in the declaration. Bunnel & ux. v. Taintor’s adm’r. 5 Conn. R. 273. 277. Wilmot v. Munson, 4 Day, 114. Curley v. Dean, 4 Conn. R. 259. Rossiter v. Marsh, Id. 196. Rossi-ter v. Downs, Id. 294.
    2. That the disclosure is in conformity to the requirements of the motion; which called for a full disclosure in the premises.

    3. That if the facts disclosed are to be considered as legally proved, this action cannot be sustained. First, because there was no consideration for the promise. 1 Sw. Dig. 191. Secondly, because it was not such a note in writing as is required, by the statute of frauds, to validate a promise to pay for the debt or duty of another. Before the receipt, Faxon was not liable at all. 1 Sw. Dig. 248. Nichols v. Johnson, 10 Conn. R. 192.
    4. That if the receipt was merely nominal, and Yeomans directed the plaintiff to collect the debt of Thayer, and not of Glines, and this direction was kept from the present defendant, at the time the receipt was given, it was a fraud on him ; and so the court should have instructed the jury. The suppression of an important fact, by one of the contracting parties, avoids the contract.

      Strong, contra,
    contended, 1. That there was no variance between the receipt offered in evidence, and the contract set forth in the declaration. In the first place, the different parts of the receipt must be construed together, so as, if possible, to give a consistent meaning to the whole. "Attached by me," under the circumstances apparent upon the face of the receipt, could mean only, attached by the officer. But secondly, if construed literally, non constat that Faxon had not himself attached the property, subject to the plaintiff's attachment; and that he had thereupon given a receipt to the plaintiff, As to the objection that the defendants in the suit were not named in the receipt, this was immaterial. Notwithstanding this omission, enough was stated to identify the suit.
    2. That the statute of frauds presents no obstacle to a recovery. In the first place, this was not a contract to pay the debt of another; but the plaintiff, having delivered property which he had attached, to the defendant, at his request, he, received it, and agreed to return it to the plaintiff. This was not a collateral undertaking. But secondly, the receipt contains all which would have been necessary, if it were within the provisions of that statute.
    3. That the prayer for a disclosure related, not to the contract, or Sts consideration, but was confined to the question, whether a demand had been made upon the receipt. As to this, the defendant was required to answer fully. The expression, “ in the premises,” relates to the demand, and to that only.
    4. That the defendants, in the former suit, not offering any property either on the attachment or execution, Yeomans had the right to direct what personal property of theirs, or of either of them, the officer should take. It does not appear, that Glines had any property ; or if he had, whether it was personal or real, or of what value, or whether free from incumbrance.
   Stohrs, J.

The first count in the declaration, being abandoned by the plaintiff, maybe disregarded: and the first question presented is, whether there was any material variance between the contract described in the second count, and that produced in support of it on the trial. The claim of a variance in the first count between the number of boots which it alleges that the defendant received of and promised to redeliver to the plaintiff, is not applicable to the second count, in which the number of that article is stated to be the same as that in the contract adduced in evidence. But the defendant claims, that as the phrase in the latter, “ attached by me,” imports, that the property to which it related was attached by the defendant, it rendered that instrument variant from the description of it in that count, which states it to have been attached by the plaintiff. If the defendant is correct in this construction of the contract, it lays no foundation for an objection on the ground of a variance between the contract and the description of it in the declaration. The declaration does not profess to recite the contract, and therefore there is no room for any claim of a literal discrepancy ; it professes only to describe it according to its legal import and effect. After stating the attachment of the property by the plaintiff, it alleges, that in consideration that he had delivered the property to the defendant, at his request, to be kept by him, &c., the defendant promised to deliver it to the plaintiff, on demand. It describes the general character of it, as it is described in the contract, as being 400 pairs of ladies’ kid slippers, and 72 pairs of men’s calf boots. It had previously stated, for the purpose probably of shewing the plaintiff’s title to it, that it had been attached by him. This however is a statement merely of a fact, not an allegation of description, because it does not profess to state, that it appeared, by the contract declared on, by whom the property had been attached. Whether it was necessary that it should appear, either in the count or in the contract, that it had been attached, or by whom, we need not here consider, because that point has not been made, either on the trial or before us ; and indeed, if it was, it would present a question, not of variance, but of a different kind. If the phrase in the contract, importing that the property had been attached by the defendant, is to be considered as descriptive of it, in the same sense as if it had stated it to be of a particular colour, rather than as a statement of an immaterial circumstance attending it, which, in no respect, varied its character or qualities, as if it had added that it had been bought of A. B., it would not necessarily be a description of different property, but might be a different description of the same property ; and a difference in the description of it would involve no contrariety. The attachment, as claimed to be stated in the contract, is entirely consistent with the contract described in the declaration. Here, therefore, was no variance. If it was requisite for the plaintiff to prove an attachment by him. as alleged in the declaration, the most that can be said, is, that the contract itself does not prove this fact; and therefore, it would be necessary to adduce other evidence of i<t. Whether such evidence was adduced, does not appear. It would be presumed, that it was, since there is no complaint in that respect, and no question is made on the subject.

But we are of opinion, that the just construction of the contract is not such as the defendant claims. It is obvious on its face, that the word “ me,” contained in it, is a mere misprision, and inserted by mistake, instead of “ him,” which would refer to the plaintiff. It explains itself readily, by supposing what is most probable, that the plaintiff wrote the body of the contract, without adverting to the circumstance that it was to be signed, not by himself, but another person. We ought, in the construction of the instrument, to correct this palpable mistake, and give it the meaning plainly intended by the parties.

The record in the case in which the property mentioned in the receipt of the defendant, was attached, was clearly admissible in support of the averments in the declaration, and the objection to it made by the defendant on the trial, has not been much pressed before us ; nor the objection there made to the contract declared on, founded on the statute of frauds. It was plainly not within that statute.

The plaintiff’s motion for a disclosure called for no discovery, excepting as to the fact of a demand by him of the defendant of the property mentioned in the receipt of the latter; and the ruling below, that the disclosure was evidence as to no other fact, was correct. The frame of the prayer in the motion for a disclosure “ in the premises,” taken in connexion with what preceded it, clearly shews, that that phrase related only to such demand. The principle is well settled, that the disclosing party can use the discovery so far only as it is responsive to the petition. There was therefore no legal evidence adduced by the defendant to shew that his receipt was merely nominal; and hence it is unnecessary to consider what would be the effect of that fact, if proved.

The defendant, on the trial, claimed to have proved, that the plaintiff in the suit on which the property of Thayer, one of the defendants in that suit, was attached, directed the plaintiff in this suit to attach the property of that, but not of the other defendant in that suit ; and thereupon insisted that such direction, if not communicated to him, at the time of executing said receipt, constituted a fraud on him, which would preclude a recovery. But the court declined so to charge the jury ; and we think, correctly. A creditor has a right to secure a claim against his joint debtors, by an attachment of the property of both or either of them, The attachment of the property of one only, being therefore no violation of the rights of either of them, we perceive no reason why it is incumbent on the creditor, or the officer acting on his behalf, to inform the receipter of the property of such direction, or why the want of such direction should be deemed a constructive fraud. The receipter is cognizant of the rights of the creditor; and by enquiry, he may obtain such information as he wishes, in order to determine whether he will assume the obligation of receipting the property. If any actual fraud has been practised on him, it would, as in other cases, avoid his contract. No such claim was made in this case.

A new trial is not advised.

In this opinion the other Judges concurred.

New trial not to be granted.